Improve Tracking of Workplace Injuries and Illnesses, 18528-18558 [2022-06546]
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Federal Register / Vol. 87, No. 61 / Wednesday, March 30, 2022 / Proposed Rules
DEPARTMENT OF LABOR
Occupational Safety and Health
Administration
29 CFR Part 1904
[Docket No. OSHA–2021–0006]
RIN 1218–AD40
Improve Tracking of Workplace
Injuries and Illnesses
Occupational Safety and Health
Administration (OSHA), Labor.
ACTION: Proposed rule; request for
comments.
AGENCY:
OSHA is proposing to amend
its occupational injury and illness
recordkeeping regulation to require
certain employers to electronically
submit injury and illness information to
OSHA that employers are already
required to keep under the
recordkeeping regulation. Specifically,
OSHA proposes to amend its regulation
to require establishments with 100 or
more employees in certain designated
industries to electronically submit
information from their OSHA Forms
300, 301, and 300A to OSHA once a
year. Establishments with 20 or more
employees in certain industries would
continue to be required to electronically
submit information from their OSHA
Form 300A annual summary to OSHA
once a year. OSHA also proposes to
update the classification system used to
determine the list of industries covered
by the electronic submission
requirement. In addition, the proposed
rule would remove the current
requirement for establishments with 250
or more employees, not in a designated
industry, to electronically submit
information from their Form 300A to
OSHA on an annual basis. OSHA
intends to post the data from the
proposed annual electronic submission
requirement on a public website after
identifying and removing information
that reasonably identifies individuals
directly, such as individuals’ names and
contact information. Finally, OSHA is
proposing to require establishments to
include their company name when
making electronic submissions to
OSHA.
DATES: Comments must be submitted by
May 31, 2022.
ADDRESSES:
Comments: Comments, along with
any submissions and attachments,
should be submitted electronically at
https://www.regulations.gov, which is
the Federal e-Rulemaking Portal. Follow
the instructions online for making
electronic submissions. After accessing
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SUMMARY:
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‘‘all documents and comments’’ in the
docket (Docket No. OSHA–2021–0006),
check the ‘‘proposed rule’’ box in the
column headed ‘‘Document Type,’’ find
the document posted on the date of
publication of this document, and click
the ‘‘Comment Now’’ link. When
uploading multiple attachments to
www.regulations.gov, please number all
of your attachments, because
www.regulations.gov will not
automatically number the attachments.
This will be very useful in identifying
all attachments in the preamble. For
example, Attachment 1—title of your
document, Attachment 2—title of your
document, Attachment 3—title of your
document. For assistance with
commenting and uploading documents,
please see the Frequently Asked
Questions on regulations.gov.
Instructions: All submissions must
include the agency’s name and the
docket number for this rulemaking
(Docket No. OSHA–2021–0006). All
comments, including any personal
information you provide, are placed in
the public docket without change and
may be made available online at https://
www.regulations.gov. Therefore, OSHA
cautions commenters about submitting
information they do not want made
available to the public, or submitting
materials that contain personal
information (either about themselves or
others), such as Social Security numbers
and birthdates.
Docket: To read or download
comments and other materials
submitted in the docket, go to Docket
No. OSHA–2021–0006 at https://
www.regulations.gov. All comments and
submissions are listed in the https://
www.regulations.gov index; however,
some information (e.g., copyrighted
material) is not publicly available to
read or download through that website.
All comments and submissions,
including copyrighted material, are
available for inspection through the
OSHA Docket Office.1 Contact the
OSHA Docket Office at (202) 693–2350,
(TTY (877) 889–5627) for information
about materials not available through
the website, and for assistance in using
the internet to locate docket
submissions.
Electronic copies of this Federal
Register document are available at
https://www.regulations.gov. This
document, as well as news releases and
1 Documents submitted to the docket by OSHA or
stakeholders are assigned document identification
numbers (Document ID) for easy identification and
retrieval. The full Document ID is the docket
number plus a unique four-digit code. OSHA is
identifying supporting information in this
document by author name, publication year, and
the last four digits of the Document ID.
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other relevant information, is available
at OSHA’s website at https://
www.osha.gov.
FOR FURTHER INFORMATION CONTACT:
For press inquiries: Contact Frank
Meilinger, Director, Office of
Communications, Occupational Safety
and Health Administration, U.S.
Department of Labor; telephone (202)
693–1999; email: meilinger.francis2@
dol.gov.
For general information and technical
inquiries: Contact Lee Anne Jillings,
Director, Directorate of Technical
Support and Emergency Management,
U.S. Department of Labor; telephone
(202) 693–2300; email:
Jillings.LeeAnne@dol.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. Introduction
B. Regulatory History
C. Litigation Resulting From Previous
Rulemakings
D. Injury and Illness Data Collection
E. Publication of Electronic Data
F. Differences Between the BLS SOII and
Proposed OSHA Data Collections
G. Benefits of Establishment-Specific, CaseSpecific Data Collection and Publication
II. Legal Authority
III. Summary and Explanation of the
Proposed Rule
A. Description of Proposed Revisions
1. Section 1904.41(a)(1) Annual Electronic
Submission of Information From OSHA
Form 300A Summary of Work-Related
Injuries and Illnesses by Establishments
With 20 or More Employees in
Designated Industries
2. Section 1904.41(a)(2) Annual Electronic
Submission of OSHA Form 300A
Summary of Work-Related Injuries and
Illnesses, OSHA Form 300 Log of WorkRelated Injuries and Illnesses, and OSHA
Form 301 Injury and Illness Incident
Report by Establishments With 100 or
More Employees in Designated
Industries
3. Section 1904.41(b)(1)(i) and (ii)
4. Section 1904.41(b)(9)
5. Section 1904.41(b)(10)
6. Section 1904.41(c) Reporting Dates
B. Questions
IV. Preliminary Economic Analysis and
Regulatory Flexibility Certification
A. Introduction
B. Costs
1. Section 1904.41(a)(1) Annual Electronic
Submission of Information From OSHA
Form 300A Summary of Work-Related
Injuries and Illnesses by Establishments
With 20 or more Employees in
Designated Industries
2. Section 1904.41(a)(2) Annual Electronic
Submission of OSHA Form 300A
Summary of Work-Related Injuries and
Illnesses, OSHA Form 300 Log of WorkRelated Injuries and Illnesses, and OSHA
Form 301 Injury and Illness Incident
Report by Establishments With 100 or
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More Employees in Designated
Industries
3. Section 1904.41(b)(10)
4. Budget Costs to the Government for the
Creation of the Reporting System,
Helpdesk Assistance, and
Administration of the Electronic
Submission Program
5. Total Costs of the Rule
C. Benefits
D. Economic Feasibility
E. Alternatives
F. Regulatory Flexibility Certification
V. OMB Review Under the Paperwork
Reduction Act of 1995
VI. Unfunded Mandates
VII. Federalism
VIII. State Plans
IX. Consultation and Coordination With
Indian Tribal Governments
X. Public Participation
Authority and Signature
I. Background
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A. Introduction
OSHA’s regulation at 29 CFR part
1904 requires employers with more than
10 employees in most industries to keep
records of occupational injuries and
illnesses at their establishments.
Employers covered by the regulation
must record each recordable employee
injury and illness on an OSHA Form
300, which is the ‘‘Log of Work-Related
Injuries and Illnesses,’’ or equivalent.
The OSHA Form 300 includes
information about the employee’s name,
job title, date of the injury or illness,
where the injury or illness occurred,
description of the injury or illness (e.g.,
body part affected), and the outcome of
the injury or illness (e.g., death, days
away from work, restricted work
activity). 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. The OSHA Form 301
includes information about the
employee’s name and address, date of
birth, date hired, gender, the name and
address of the health care professional
that treated the employee, as well as
more detailed information about where
and how the injury or illness occurred.
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. The OSHA Form
300A does not contain information
about individual employees, but does
include general information about an
employer’s workplace, such as the
average number of employees and total
number of hours worked by all
employees during the calendar year.
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Section 1904.41 of the current
recordkeeping regulation also requires
certain employers to electronically
submit injury and illness data to OSHA.
Section 1904.41(a)(1) requires
establishments with 250 or more
employees in industries that are
required to routinely keep OSHA injury
and illness records to electronically
submit information from the Form 300A
summary to OSHA once a year. Section
1904.41(a)(2) requires establishments
with 20–249 employees in certain
designated industries to electronically
submit information from their Form
300A summary to OSHA once a year.
Also, § 1904.41(a)(3) provides that, upon
notification, employers must
electronically submit requested
information from their part 1904 records
to OSHA. Lastly, § 1904.41(a)(4)
requires each establishment that must
electronically submit injury and illness
information to OSHA to also provide
their Employer Identification Number
(EIN) in their submittal.
Under this proposed rule,
establishments with 20 or more
employees in certain designated
industries (listed in appendix A to
subpart E) would continue to
electronically submit information from
their Form 300A annual summary to
OSHA once a year. However, the
proposed rule would eliminate the
requirement for all establishments with
250 or more employees in industries
that are required to routinely keep
OSHA injury and illness records to
electronically submit information from
the Form 300A to OSHA. Instead,
establishments with 100 or more
employees in certain designated
industries (listed in appendix B to
subpart E) would be required to
electronically submit information from
their OSHA Forms 300, 301, and 300A
to OSHA once a year. OSHA also
proposes to update the industry
classification system used for the
proposed list of designated industries in
appendix A and B to subpart E. In
addition, OSHA is proposing to require
establishments to include their
company name when making electronic
submissions to OSHA.
The proposed requirement for
establishments with 20 or more
employees in certain designated
industries to electronically submit
information from their Form 300A to
OSHA once a year is essentially the
same as the current regulation. For
establishments with 100 or more
employees in certain designated
industries, the proposed requirement to
electronically submit information from
their Forms 300 and 301 to OSHA on an
annual basis represents a change from
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the current regulation. The proposed
requirement would provide systematic
access for OSHA to the establishmentspecific, case-specific injury and illness
information that these establishments
are already required to collect.
Additionally, OSHA intends to post
the collected establishment-specific,
case-specific injury and illness
information online. As discussed in
more detail below, the agency will seek
to minimize the possibility that worker
information, such as name and contact
information, will be released, through
multiple efforts, including limiting the
worker information collected, designing
the collection system to provide extra
protections for some of the information
that employers would be required to
submit under the proposal, withholding
certain fields from public disclosure,
and using automated software to
identify and remove information that
reasonably identifies individuals
directly. OSHA does not intend to
include information that reasonably
identifies individuals directly, such as
employee name, contact information,
and name of physician or health care
professional, in the published
information. The expanded public
access to establishment-specific, casespecific injury and illness data would
allow employers, employees, potential
employees, employee representatives,
customers, potential customers,
researchers, and the general public to
make informed decisions about the
workplace safety and health at a given
establishment, and this accessibility
will ultimately result in the reduction of
occupational injuries and illnesses.
OSHA estimates that this proposed
rule would have economic costs of $4.3
million per year, including $3.9 million
per year to the private sector, with costs
of $81 per year for affected
establishments with 100 or more
employees in designated industries. The
agency believes that the annual benefits,
while unquantified, would significantly
exceed the annual costs.
OSHA seeks comment on this
proposal.
B. 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)). These regulations require the
recording of work-related injuries and
illnesses that involve death, loss of
consciousness, days away from work,
restricted work or transfer to another
job, medical treatment beyond first aid,
or diagnosis of a significant injury or
illness by a physician or other licensed
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health care professional (29 CFR
1904.7).
On July 29, 1977, OSHA amended
these regulations to partially exempt
businesses having ten or fewer
employees during the previous calendar
year from the requirement to record
occupational injuries and illnesses (42
FR 38568). Then, on December 28, 1982,
OSHA amended the regulations again to
partially exempt establishments in
certain lower-hazard industries from the
requirement to record occupational
injuries and illnesses (47 FR 57699).2
OSHA also amended the recordkeeping
regulations in 1994 (Reporting of
Fatality or Multiple Hospitalization
Incidents, 59 FR 15594) and 1997
(Reporting Occupational Injury and
Illness Data to OSHA, 62 FR 6434).
Under the version of § 1904.41 added
by the 1997 final rule, OSHA began
requiring certain employers to submit
their 300A data to OSHA annually
through the OSHA Data Initiative (ODI).
Through the ODI, OSHA collected data
on injuries and acute illnesses
attributable to work-related activities in
the private sector from approximately
80,000 establishments in selected highhazard industries. The agency used
these data to calculate establishmentspecific injury and illness rates, and, in
combination with other data sources, to
target enforcement and compliance
assistance activities.
On January 19, 2001, OSHA issued a
final rule amending its requirements for
the recording and reporting of
occupational injuries and illnesses (29
CFR parts 1904 and 1952), along with
the forms employers use to record those
injuries and illnesses (66 FR 5916). The
final rule also updated the list of
industries that are partially exempt from
recording occupational injuries and
illnesses.
On September 18, 2014, OSHA again
amended the regulations to require
employers to report work-related
fatalities and severe injuries—in-patient
hospitalizations, amputations, and
losses of an eye—to OSHA and to allow
electronic reporting of these events (79
2 All employers covered by the Occupational
Safety and Health Act (the ‘‘OSH Act’’ or ‘‘Act’’) are
covered by OSHA’s recordkeeping regulation.
However, most employers do not have to keep
OSHA injury and illness records unless OSHA or
the Bureau of Labor Statistics (BLS) informs them
in writing that they must keep records. For
example, employers with ten or fewer employees,
as well as businesses with establishments in certain
industries, are partially exempt from keeping OSHA
injury and illness records. In addition, all
employers covered by the OSH Act, including those
that are partially exempt from keeping injury and
illness records, are still required to report workrelated fatalities, in-patient hospitalizations,
amputations, and losses of an eye to OSHA within
specified timeframes under 29 CFR 1904.39.
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FR 56130). The final rule also revised
the list of industries that are partially
exempt from recording occupational
injuries and illnesses.
On May 12, 2016, OSHA amended the
regulations on recording and reporting
occupational injuries and illnesses to
require employers, on an annual basis,
to submit electronically to OSHA injury
and illness information that employers
are already required to keep under part
1904 (81 FR 29624). Under the 2016
revisions, establishments with 250 or
more employees that are routinely
required to keep records were required
to electronically submit information
from their OSHA Forms 300, 300A, and
301 to OSHA or OSHA’s designee once
a year, and establishments with 20 to
249 employees in certain designated
industries were required to
electronically submit information from
their OSHA annual summary (Form
300A) to OSHA or OSHA’s designee
once a year. In addition, that final rule
required employers, upon notification,
to electronically submit information
from part 1904 recordkeeping forms to
OSHA or OSHA’s designee. These
provisions became effective on January
1, 2017, with an initial submission
deadline of July 1, 2017, for 2016 Form
300A data. That submission deadline
was subsequently extended to December
15, 2017 (82 FR 55761). The deadline
for electronic submission of information
from OSHA Forms 300 and 301 was July
1, 2018. Because of a subsequent
rulemaking, OSHA never received the
data submissions from Forms 300 and
301 that the 2016 final rule anticipated.
On January 25, 2019, OSHA issued a
final rule that amended the
recordkeeping regulations to remove the
requirement for establishments with 250
or more employees that are routinely
required to keep records to
electronically submit information from
their OSHA Forms 300 and 301 to
OSHA or OSHA’s designee once a year.
These establishments are currently
required to electronically submit only
information from the OSHA 300A
annual summary. The final rule also
added a requirement for covered
employers to submit their Employer
Identification Number (EIN)
electronically along with their injury
and illness data submission (83 FR
36494, 84 FR 380–406).
C. Litigation Resulting From Previous
Rulemakings
Both the 2016 and 2019 OSHA final
rules that addressed the electronic
submission of injury and illness data
were challenged in court. In Texo ABC/
ABG et al. v. Acosta (N.D. Tex.), and
NAHB et al. v. Acosta (W.D. Okla.),
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industry groups challenged OSHA’s
2016 final rule that required
establishments with 250 or more
employees to electronically submit data
from their OSHA Forms 300 and 301 to
OSHA (as well as other requirements
not relevant to this rulemaking). The
complaints alleged that the publication
of establishment-specific injury and
illness data would lead to misuse of
confidential and proprietary
information by the public and special
interest groups. The complaints also
alleged that publication of the data
exceeds OSHA’s authority under the
Occupational Safety and Health Act (the
‘‘OSH Act’’ or ‘‘Act’’) and is
unconstitutional under the First
Amendment to the U.S. Constitution.
After OSHA published a notice of
proposed rulemaking on July 30, 2018
(83 FR 36494), proposing to rescind the
300 and 301 data submission
requirement, the Texo case was
administratively closed, and the
plaintiffs in the NAHB case dropped
their claims relating to the 300 and 301
data submission requirement after the
2019 final rule was published (and
moved forward with their other claims,
which are still pending in the Western
District of Oklahoma).
In Public Citizen Health Research
Group et al. v. Pizella (No. 1:19–cv–
00166) and State of New Jersey et al. v.
Pizella (No. 1:19–cv–00621), a group of
public health organizations and a group
of states filed separate lawsuits
challenging OSHA’s 2019 final rule
rescinding the requirement for certain
employers to submit the data from
OSHA Forms 300 and 301 to OSHA
electronically each year. The District
Court for the District of Columbia
resolved the two cases in a consolidated
opinion and held that rescinding the
provision was within the agency’s
discretion. The court concluded the
record supported OSHA’s determination
that costly manual review of collected
300 and 301 data would be needed to
avoid a meaningful risk of exposing
sensitive worker information to public
disclosure. The court also determined
that OSHA provided adequate notice of
the estimated costs of manually
reviewing the data for sensitive
information, and that the final rule was
a logical outgrowth of the rulemaking.
Finally, the court upheld OSHA’s
conclusion that the uncertain benefits of
collecting the 300 and 301 data did not
justify diverting OSHA’s resources from
other efforts, and the court rejected the
plaintiffs’ assertion that OSHA’s reasons
for the 2019 final rule were internally
inconsistent.
Additionally, since 2020, the
Department of Labor (DOL) has received
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several adverse decisions regarding the
release of electronically submitted 300A
data under the Freedom of Information
Act (FOIA). In each of the cases, OSHA
argued that electronically submitted
300A injury and illness data was
covered under the confidentiality
exemption in FOIA Exemption 4. Two
courts, one in the U.S. District Court for
the Northern District of California and
another in the U.S. District Court for the
District of Columbia, disagreed with
OSHA’s position. See, Center for
Investigative Reporting, et al., v.
Department of Labor, No. 4:18–cv–
02414–DMR, 2020 WL 2995209 (N.D.
Cal. June 4, 2020); Public Citizen
Foundation v. United States Department
of Labor, et al., No. 1:18–cv–00117
(D.D.C. June 23, 2020). In addition, on
July 6, 2020, the Department received an
adverse ruling from a magistrate judge
in the Northern District of California in
a FOIA case involving Amazon
fulfillment centers. In that case,
plaintiffs sought the release of
individual 300A forms, which consisted
of summaries of Amazon’s work-related
injuries and illnesses and which were
provided to OSHA compliance officers
during specific OSHA inspections of
Amazon fulfillment centers in Ohio and
Illinois. See, Center for Investigative
Reporting, et al., v. Department of
Labor, No. 3:19–cv–05603–SK, 2020 WL
3639646 (N.D. Cal. July 6, 2020).
In holding that FOIA Exemption 4
was inapplicable, the courts rejected
OSHA’s position that electronically
submitted 300A injury and illness data
is covered under the confidentiality
exemption in FOIA Exemption 4. The
decisions noted that the 300A form is
posted in the workplace for three
months and that there is no expectation
that the employer must keep these data
confidential or private. As a result,
OSHA provided the requested 300A
data to the plaintiffs, and initiated a
policy to post collected 300A data on its
public website. The data are available at
https://www.osha.gov/EstablishmentSpecific-Injury-and-Illness-Data and
include the submissions for calendar
years 2016, 2017, 2018, 2019, and 2020.
D. Injury and Illness Data Collection
Currently, two U.S. Department of
Labor data collections request and
compile information from the OSHA
injury and illness records certain
employers are required to keep under 29
CFR part 1904: The annual collection
conducted by OSHA under 29 CFR
1904.41 (Electronic Submission of
Employer Identification Number (EIN)
and Injury and Illness Records), and the
annual Survey of Occupational Injuries
and Illnesses (SOII) conducted by BLS
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under 29 CFR 1904.42. This proposed
rule would amend the current
regulation at § 1904.41. It would not
change the SOII or the authority for the
SOII set forth in § 1904.42.
The primary purpose of the SOII is to
provide nationally-representative
annual estimates of 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.
Title 44 U.S.C. 3572 prohibits BLS from
releasing establishment-specific and
case-specific data to the general public
or to OSHA. OSHA only has access to
the publicly-available aggregate
information from the injury and illness
records collected through the BLS SOII.
The BLS has modified their collection
to allow respondents that have already
provided their Form 300A data to OSHA
to provide their OSHA identification
number (OSHA ID) to import to BLS the
data that they have submitted to the
OSHA ITA in that same year. Under this
data-sharing feature, if BLS can
successfully match establishment
information with information reported
to OSHA, data reported by the
respondent to the OSHA ITA are
automatically imported into the BLS
SOII internet Data Collection Facility
(IDCF). Imported data are taken from the
OSHA 300A annual summary.
Additional information may need to be
entered manually to complete the SOII
submission. In the 2021 collection for
the BLS SOII, roughly 31,000
establishments had an opportunity to
use this data-sharing feature for their
OSHA Form 300A data, i.e., they were
submitting to both the OSHA ITA and
the BLS SOII. Of these roughly 31,000
establishments, 9,479 establishments
provided their OSHA ID to the BLS SOII
collection for BLS to try to match for the
data-sharing feature. Of these 9,479
establishments, 4,716 establishments
that passed BLS’s data quality checks
had their OSHA-submitted data
automatically imported into the BLS
SOII IDCF via the data-sharing feature.
The Department is continuing to
evaluate opportunities to further reduce
duplicative reporting. To this end, BLS
will evaluate the feasibility of using this
same model for the additional
information that would be required by
this proposed rule.
Authority for the SOII comes from 29
CFR 1904.42, Requests from the Bureau
of Labor Statistics for data. Each year,
BLS collects data from Forms 300, 301,
and 300A from a scientifically-selected
probability sample of about 230,000
establishments, covering nearly all
private-sector industries, as well as state
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18531
and local government. Employers may
submit their data on paper forms or
electronically. BLS releases the
aggregated data in November of the year
following the data year (e.g., November
2020 for 2019 data).
As discussed above, the OSHA
recordkeeping regulation has required
certain employers to submit injury and
illness information to OSHA since 1997.
Currently, § 1904.41, Electronic
submission of Employer Identification
Number (EIN) and injury and illness
records to OSHA, requires two groups of
establishments to annually submit
information from the OSHA Form 300A
Annual Summary: Establishments with
20–249 employees in industries
included in appendix A to subpart E of
part 1904, and establishments with 250
or more employees in industries that are
routinely required to keep part 1904
injury and illness records. For purposes
of § 1904.41, the number of employees
at a given establishment is based on the
number of individuals employed at the
establishment at any time during the
previous calendar year, including fulltime, part-time, seasonal, and temporary
workers. In addition, data submissions
under § 1904.41 are typically limited to
establishments in industries with high
injury and illness rates. For example,
while current § 1904.41(a)(1) covers
establishments with 20–249 employees,
only establishments in certain
designated industries are required to
electronically submit information from
their Form 300A under this provision.
The primary purpose of the electronic
submission requirements in § 1904.41 is
to enable OSHA to focus its enforcement
and compliance assistance efforts on
individual workplaces with ongoing
serious safety and health problems, as
identified by the occupational injury
and illness rates at those workplaces.
An establishment’s submission of
information from its OSHA Form 300A
Annual Summary provides summary
information about injuries and illnesses
at that specific establishment, but not
about specific cases of injury or illness
at that establishment. In contrast, the
OSHA Form 300 Log of Work-Related
Injuries and Illnesses and Form 301
Injury and Illness Incident Report
provide information about specific cases
of injury or illness.
E. Publication of Electronic Data
OSHA intends to make much of 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.
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OSHA will make the following data
from the OSHA Form 300 and 301
available in a searchable online
database:
Form 300 (the Log)—All collected
data fields on the 300 Log will generally
be made available on OSHA’s website.
OSHA is proposing to collect all of the
fields except employee name (column
B). OSHA currently collects these data
during inspections and maintains them
as part of the enforcement case file.
However, the agency does not currently
conduct a systematic collection of the
information on the 300 Log. OSHA
generally releases copies of the 300 Logs
maintained in inspection files in
response to FOIA requests after
redacting employee names (column B).
OSHA’s regulations require employers
to provide employees, former
employees, their representatives, and
their authorized employee
representatives with access to the 300
Log (29 CFR 1904.32(b)(2)). Specifically,
when an employee, former employee,
personal representative, or authorized
employee representative asks an
employer for copies of that employer’s
current or stored OSHA 300 Log(s) for
an establishment the employee or
former employee has worked in, the
employer must give the requester a copy
of the relevant OSHA 300 Log(s) by the
end of the next business day (29 CFR
1904.32(b)(2)(ii)). Once the copy is
accessed, OSHA’s recordkeeping
regulation does not place any
limitations on the use or release of the
information by employees and
employee representatives. Moreover, as
explained in OSHA’s 2001 final rule
amending its requirements for the
recording and reporting of occupational
injuries and illnesses, while agency
policy is that employees and their
representatives with access to records
should treat the information contained
therein as confidential except as
necessary to further the purposes of the
Act, the Secretary lacks statutory
authority to enforce such a policy
against employees and representatives
(see 66 FR 6056–57 (citing e.g., 29
U.S.C. 658, 659) (Act’s enforcement
mechanisms directed solely at
employers)). In other words, as OSHA
explained in its 2016 recordkeeping
final rule, employees and their
representatives can make the data they
have accessed public if they wish to do
so (see 81 FR 29684). However, there are
some restrictions on what employers
may do with these data. Under
§ 1904.29(b)(10), if employers choose to
voluntarily disclose the Forms to
persons other than government
representatives, employees, former
employees, or authorized
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representatives (as required by
§§ 1904.35 and 1904.40), the employer
must remove or hide the employees’
names and other personally identifying
information, with certain exceptions as
spelled out in OSHA’s regulations.
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.
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 is proposing not to
collect (and therefore could not 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). As
above, under § 1904.35(a)(3), employers
must provide access to injury and
illness records for their employees and
employees’ representatives, as described
in § 1904.35(b)(2). Also, as above, the
OSHA recordkeeping regulation does
not place limitations on the use or
release of the information obtained by
employees and employee
representatives.
F. Differences Between the BLS SOII and
Proposed OSHA Data Collections
The BLS SOII is an establishmentbased survey used to estimate
nationally-representative incidence
rates and counts of workplace injuries
and illnesses. It also provides detailed
case and demographic data for cases
that involve one or more days away
from work (DAFW) and for days of job
transfer and restriction (DJTR).
SOII estimates the number and
frequency (incidence rates) of workplace
injuries and illnesses based on
recordkeeping logs kept by employers
during the year. These records reflect
not only the year’s injury and illness
experience, but also the employer’s
understanding of which cases are workrelated under recordkeeping rules
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promulgated by OSHA. Although SOII
uses OSHA’s recordkeeping rules to
facilitate convenient collection of data,
it is not administered by OSHA. In
addition, the scope of SOII encompasses
industries not required by OSHA to
routinely keep injury and illness records
(i.e., industries listed in appendix A to
subpart B of part 1904). Information
collected through the program is used
for purely statistical purposes, cannot be
viewed by OSHA, and cannot be used
for any regulatory purpose. Besides
injury and illness counts, survey
respondents also are asked to provide
additional information for the subset of
nonfatal cases that involved at least 1
day away from work or job transfer or
restriction. Employers answer several
questions about these cases, including
the demographics of the worker, the
nature of the disabling condition, the
event and source producing that
condition, and the part of body affected.
A few of the data elements are optional
for employers, most notably race and
ethnicity; this resulted in 40 percent of
the cases involving days away from
work for which race and ethnicity were
not reported in the 2016 SOII.3
The presentation of SOII data is
released in the fall and contains two
data components. One, sometimes
referred to as the summary, provides
estimates of numbers and incidence
rates of employer-reported nonfatal
injuries and illnesses at the industry
level for all types of cases. A second,
sometimes referred to as the case and
demographics data, details case
circumstances and worker
characteristics for the subset of the cases
that involved days away from work.4
Prepared tables containing the data can
be found for industry data at https://
www.bls.gov/iif/oshsum.htm and for
case and demographics at https://
www.bls.gov/iif/oshcdnew.htm. A
schedule of releases from the Injuries,
Illnesses, and Fatalities program, which
includes SOII, can be found at https://
www.bls.gov/iif/osh_nwrl.htm.
In contrast, under the current data
collection, OSHA annually collects
information from the OSHA Form 300A
Annual Summary from two groups of
establishments:
1. Under § 1904.41(a)(1), from
establishments with 20 or more
3 U.S. Bureau of Labor Statistics, Handbook of
Methods, Survey of Occupational Injuries and
Illnesses, p. 12 (last modified date October 30,
2020); https://www.bls.gov/opub/hom/soii/pdf/
soii.pdf.
4 BLS started collecting nationally representative
job transfer and restriction cases in January 2022.
BLS will begin publishing biennial case and
demographic estimates using these data in
November 2023. BLS will continue to publish
summary industry estimates annually.
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employees in industries included in
appendix A to subpart E of part 1904,
and
2. under § 1904.41(a)2), from
establishments with 250 or more
employees in all industries that are
routinely required to keep OSHA injury
and illness records.
OSHA publishes this information on
its website at https://www.osha.gov/
Establishment-Specific-Injury-andIllness-Data. OSHA is proposing to
revise this data collection to include
information from the OSHA Form 300
Log and Form 301 Incident Report from
establishments with 100 or more
employees in certain industries.
G. Benefits of Establishment-Specific,
Case-Specific Data Collection and
Publication
As discussed in more detail below,
the proposed rule would amend
§ 1904.41 to require establishments with
100 or more employees in certain
designated industries to electronically
submit injury and illness information
from all three recordkeeping forms to
OSHA once a year (see proposed
§ 1904.41(a)(2)). All of the
establishments that would be subject to
this proposed section are already
required to annually submit information
from their Form 300A, but these
establishments would be newly required
to also annually submit certain
information from their Forms 300 and
301.
The proposed requirement for the
electronic submission of establishmentspecific, case-specific information from
the Forms 300 and 301, and the
subsequent publication of certain
establishment-specific, case-specific
data elements would have numerous
benefits.
The main purpose of the proposed
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 proposed rule,
employers, employees, employee
representatives, the government, and
researchers would be better able to
identify and mitigate workplace hazards
and thereby prevent worker injuries and
illnesses.
The proposed rule would 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
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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 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. OSHA currently has limited
information about the injury/illness
risks facing workers in specific
establishments, and the proposed rule
would increase the agency’s ability to
focus resources on those workplaces
where workers are at high 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. Public access to
the collected establishment-specific,
case-specific information may
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.
A requirement for the electronic
submission of establishment-specific,
case-specific recordkeeping data would
help OSHA encourage employers to
prevent worker injuries and illnesses by
greatly expanding OSHA’s access to the
establishment-specific, case-specific
information employers are already
required to record under part 1904. As
described in the previous section,
OSHA currently does not have
systematic access to this information.
OSHA has limited access to casespecific, establishment-specific injury
and illness information in a particular
year. Typically, OSHA only has access
if the establishment was inspected.
The proposed rule’s provisions
requiring regular electronic submission
of case-specific injury and illness data
would allow OSHA to obtain a much
larger data set of establishment-specific,
case-specific information about injuries
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18533
and illnesses in the workplace. This
information would help OSHA use its
enforcement and compliance assistance
resources more effectively by enabling
OSHA to identify the workplaces where
workers are at high risk.
For example, OSHA could send
hazard-specific educational materials to
employers who report high rates of
injuries or illnesses related to those
hazards. In addition, OSHA would 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 data collection would also
enable the agency to focus its Emphasis
Program inspections on establishments
with specific hazards, such as trench
and excavation collapses (see CPL 02–
00–161, October 1, 2018). OSHA would
be better able to refer employers who
report certain types of injuries/illnesses
to OSHA’s free on-site consultation
program. OSHA would also be able to
add specific hazards or types of injury
or illness to the Site Specific Targeting
(SST) program, which currently is based
on establishments’ overall injury/illness
rates.
The new collection would provide
establishment-specific, case-specific
injury and illness data for analyses that
are not currently possible. For example,
OSHA could analyze the data collected
under this system to assess changes in
types and rates of particular injuries or
illnesses in a particular industry over
time. It would also 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.
In addition, publication of
establishment-specific, case-specific
injury and illness data would benefit the
majority of employers who want to
prevent injuries and illnesses among
their employees, through several
mechanisms. First, the information
would enable interested parties to gauge
the full range of injury and illness case
types at the establishment. Second,
employers could compare case-specific
injury and illness information at their
establishments to those at comparable
establishments, and set workplace
safety/health goals benchmarked to the
establishments they consider most
comparable. Third, online availability of
case-specific, establishment-specific
injury and illness information would
allow employees to compare their own
workplaces to the safest workplaces in
their industries. In addition, if
employees were able to preferentially
choose employment at the safest
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workplaces in their industries, then
employers might take steps to improve
workplace safety and health (preventing
injuries and illnesses from occurring) in
order to attract and retain employees.
Fourth, access to these data could
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 indemand employees. Using data newly
accessible under this proposed rule,
potential employees could examine the
case-specific information at
establishments where they are
interested in working, to help them
make a more informed decision about a
future place of employment. This could
also encourage employers with more
hazardous workplaces in a given
industry to make improvements in
workplace safety and health, 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.
Disclosure of and access to casespecific 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. Using data
collected under the proposed 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. Case-specific data
made available under this proposed rule
could also allow researchers to identify
patterns of injuries or illnesses that are
masked by the aggregated,
establishment-level data currently
available.
The availability of establishmentspecific injury and illness data would
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 case-specific
injury and illness data from similar
establishments could facilitate
identification of newly-emerging
hazards. Public health surveillance
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programs must currently 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 the case-specific
data 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 case-specific injury
and illness information could support
the development of innovative ideas for
improving workplace safety and health,
and would allow everyone with a stake
in workplace safety and health to
participate in improving occupational
safety and health.
Furthermore, because the casespecific data would be publicly
available, industries, trade associations,
unions, and other groups representing
employers and workers would be able to
evaluate the effectiveness of privatelyinitiated injury and illness prevention
initiatives that affect groups of
establishments. In addition, linking
these data with data residing in other
administrative data sets would enable
researchers to conduct rigorous studies
that would 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 would be
possible to examine the impact of a
range of management practices on
specific injury and illness types, and in
turn the impact of those injury and
illness types on the financial status of
employers.
And finally, public access to these
data would also enable software
developers to develop tools that
facilitate use of these data by employers,
workers, researchers, consumers and
others.
II. Legal Authority
OSHA is issuing this proposed rule
pursuant to authority expressly granted
by several provisions of the OSH Act
that address the recording and reporting
of occupational injuries and illnesses.
Section 2(b)(12) of the OSH Act states
that one of the purposes of the OSH Act
is to ‘‘assure so far as possible . . . safe
and healthful working conditions . . .
by providing for appropriate reporting
procedures . . . which will help
achieve the 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
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to the Secretary [of Labor] or the
Secretary of Health and Human
Services, such records regarding his
activities relating to this Act as the
Secretary . . . may prescribe by
regulation as necessary or appropriate
for the enforcement of this Act or for
developing information regarding the
causes and prevention of occupational
accidents and illnesses’’ (29 U.S.C.
657(c)(1)). Section 8(c)(2) directs the
Secretary to prescribe regulations
‘‘requiring employers to maintain
accurate records of, and to make
periodic reports on, work-related
deaths, injuries and illnesses other than
minor injuries requiring only first aid
treatment and which do not involve
medical treatment, loss of
consciousness, restriction of work or
motion, or transfer to another job’’ (29
U.S.C. 657(c)(2)).
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 broadly empowers the
Secretary ‘‘to prescribe such rules and
regulations as he may deem necessary to
carry out his responsibilities under th[e]
Act.’’ 29 U.S.C. 657(g)(2).
Section 24 of the OSH Act (29 U.S.C.
673) contains a similar grant of
authority. This section requires the
Secretary to ‘‘develop and maintain an
effective program of collection,
compilation, and analysis of
occupational safety and health
statistics’’ and ‘‘compile accurate
statistics on work injuries and illnesses
which shall include all disabling,
serious, or significant injuries and
illnesses . . .’’ (29 U.S.C. 673(a)).
Section 24 also requires employers to
‘‘file such reports with the Secretary as
he shall prescribe by regulation’’ (29
U.S.C. 673(e)). These reports are to be
based on ‘‘the records made and kept
pursuant to § 8(c) of this Act’’ (29 U.S.C.
673(e)).
Section 20 of the Act, 29 U.S.C. 669,
contains additional implicit authority
for collecting and disseminating data on
occupational injuries and illnesses.
Section 20(a) empowers the Secretaries
of Labor and Health and Human
Services to consult on research
concerning occupational safety and
health problems, and provides for the
use of such research, ‘‘and other
information available,’’ in developing
criteria on toxic materials and harmful
physical agents. Section 20(d) states that
‘‘[i]nformation obtained by the Secretary
. . . under this section shall be
disseminated by the Secretary to
employers and employees and
organizations thereof.’’
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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, aim to correct particular identified
workplace hazards, while regulations
further the general enforcement and
detection purposes of the OSH Act (see
Workplace Health & Safety Council v.
Reich, 56 F.3d 1465, 1468 (D.C. Cir.
1995) (citing La. Chem. Ass’n v.
Bingham, 657 F.2d 777, 781–82 (5th Cir.
1981)); United Steelworkers of Am. v.
Auchter, 763 F.2d 728, 735 (3d Cir.
1985)). Recordkeeping requirements
promulgated under the Act are
characterized as regulations (see 29
U.S.C. 657 (using the term ‘‘regulations’’
to describe recordkeeping
requirements); see also Workplace
Health & Safety Council v. Reich, 56
F.3d 1465, 1468 (D.C. Cir. 1995) (citing
La. Chem. Ass’n. v. Bingham, 657 F.2d
777, 781–82 (5th Cir. 1981); United
Steelworkers of Am. v. Auchter, 763
F.2d 728, 735 (3d Cir. 1985)).
This proposed 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
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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 proposed rule is reasonable. The
proposed 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,
n.2). This proposed rule, like that
hypothetical, establishes general
reporting requirements based on
objective criteria and does not vest field
staff with any discretion. The employers
that are required to report data, the
information they must report, and the
time when they must report it are
clearly identified in the text of the rule
and in supplemental notices that will be
published pursuant to the Paperwork
Reduction Act.
Additionally, with regard to
publication of collected data, FOIA
generally supports OSHA’s intention to
publish information on a publicly
available website. FOIA provides that
certain Federal agency records must be
routinely made ‘‘available for public
inspection and copying’’ in agency
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18535
reading rooms. See, 5 U.S.C. 552(a)(2)
(2000). These reading rooms contain
basic agency materials such as agency
manuals, specific agency policy
statements, and opinions developed in
the adjudication of cases. Subsection
(a)(2) provides that agencies must
include any records processed and
disclosed in response to a FOIA request
that ‘‘the agency determines have
become or are likely to become the
subject of subsequent requests for
substantially the same records.’’
Based on its experience, OSHA
believes that the recordkeeping
information from the Forms 300, 301,
and 300A required to be submitted
under this proposed rule will likely be
the subject of multiple FOIA requests in
the future. As such, the agency plans to
place the recordkeeping information
that will be posted on the public OSHA
website in its Electronic FOIA Library.
Since agencies may ‘‘withhold’’ (i.e., not
make available) a record (or portion of
such a record) if it falls within a FOIA
exemption, just as they can do in
response to FOIA requests, OSHA will
place the published information in its
FOIA Library consistent with all FOIA
exemptions.
III. Summary and Explanation of the
Proposed Rule
A. Description of Proposed Revisions
1. Section 1904.41(a)(1)—Annual
Electronic Submission of Information
From OSHA Form 300A Summary of
Work-Related Injuries and Illnesses by
Establishments With 20 or More
Employees in Designated Industries
Under proposed § 1904.41(a)(1),
establishments that had 20 or more
employees at any time during the
previous calendar year, and are
classified in an industry listed in
appendix A to subpart E, would be
required to electronically submit
information from their OSHA Form
300A to OSHA or OSHA’s designee
once a year. The current recordkeeping
regulation requires two categories of
establishments to electronically submit
information from their Form 300A to
OSHA on an annual basis. First, current
§ 1904.41(a)(1) requires establishments
with 250 or more employees at any time
during the previous calendar year, in all
industries that are routinely required to
keep OSHA injury and illness records,
to electronically submit information
from their 300A to OSHA once a year.
Second, current § 1904.41(a)(2) requires
establishments with 20–249 employees
at any time during the previous calendar
year, in industries listed in appendix A
to subpart E of part 1904, to
electronically submit information from
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their OSHA 300A to OSHA or OSHA’s
designee once a year.
The proposed rule would not impose
any new requirements on
establishments to electronically submit
information from their Form 300A to
OSHA. All establishments that would be
required to electronically submit Form
300A information to OSHA on an
annual basis under the proposed rule
are already subject to that requirement
under the current regulation. This
includes all of the establishments with
250 or more employees that would be
required to electronically submit
information to OSHA under proposed
§ 1904.41(a)(2), which are already
required to submit this information
under the current regulation at
§ 1904.41(a)(1).
As discussed in more detail below,
proposed § 1904.41(a) would remove the
electronic submission requirement for
certain establishments with 250 or more
employees. Currently, all establishments
of this size in industries routinely
required to keep injury and illness
records are required to electronically
submit information from their Form
300A to OSHA once a year. The
proposal requires this submission only
for the establishments in industries
listed in appendix A. OSHA believes
that only a small number of
establishments would be excluded by
the proposal. In calendar year 2020,
2,665 establishments with 250 or more
employees, in an industry not in current
appendix A to subpart E, submitted
information from their 2019 Form 300A
to OSHA. Under proposed § 1904.41(a),
these establishments would no longer be
required to electronically submit Form
300A data to OSHA.5 The agency has
preliminarily determined that collecting
Form 300A data from this relatively
small number of large establishments in
lower-hazard industries is not a priority
for OSHA inspection targeting or
compliance assistance activities.6
Additionally, OSHA proposes to
revise appendix A to subpart E to
update the list of designated industries
to conform with the 2017 version of the
North American Industry Classification
System (NAICS). The Office of
Management and Budget, through its
Economic Classification Policy
Committee (ECPC), reviews and
considers revisions for NAICS, a
statistical classification system, every
five years. In 2016, when OSHA revised
§ 1904.41, the agency used the 2012
version of NAICS to designate the
industries in which establishments with
20–249 employees were required to
electronically submit Form 300A data to
OSHA. (See current appendix A to
subpart E of part 1904). The Office of
Management and Budget has since
issued two updates to the NAICS codes:
2017 NAICS codes and 2022 NAICS
codes. The update from 2012 NAICS to
2017 NAICS would have the benefit of
using more current NAICS codes, as
well as ensuring that both proposed
appendix A and proposed appendix B
(referenced in proposed § 1904.41) use
the same version of NAICS. As
explained below, the industries in
proposed appendix B are a subset of the
industries in appendix A. Also, the 2017
version of NAICS is the version
currently used by BLS for the SOII data
that OSHA is using for this rulemaking,
and employers are likely more familiar
with the 2017 industry codes.
This proposed revision would not
impact which industries are covered
and therefore required to provide their
data.7 It would merely reflect the
updated 2017 NAICS codes. For
appendix A, OSHA is limiting the scope
of this rulemaking to the proposed
update from the 2012 version of NAICS
to the 2017 version of NAICS. Other
changes to appendix A are not within
the scope of this rulemaking.
For proposed (i.e., updated) appendix
A, the change from the 2012 NAICS to
the 2017 NAICS would affect only a few
industry groups at the 4-digit NAICS
level. Specifically, the 2012 NAICS
industry group 4521 (Department
Stores) is split between the 2017 NAICS
industry groups 4522 (Department
Stores) and 4523 (General Merchandise
Stores, including Warehouse Clubs and
Supercenters). Also, the 2012 NAICS
industry group 4529 (Other General
Merchandise Stores) is included in 2017
NAICS industry group 4523 (General
Merchandise Stores, including
Warehouse Clubs and Supercenters).
The proposed revised appendix A is
as follows:
PROPOSED APPENDIX A
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2017
NAICS code
11 .................
22 .................
23 .................
31–33 ...........
42 .................
4413 .............
4421 .............
4422 .............
4441 .............
4442 .............
4451 .............
4452 .............
4522 .............
4523 .............
4533 .............
4542 .............
4543 .............
4811 .............
4841 .............
2017 NAICS title
Agriculture, forestry, fishing and hunting.
Utilities.
Construction.
Manufacturing.
Wholesale trade.
Automotive Parts, Accessories, and Tire Stores.
Furniture Stores.
Home Furnishings Stores.
Building Material and Supplies Dealers.
Lawn and Garden Equipment and Supplies Stores.
Grocery Stores.
Specialty Food Stores.
Department Stores.
General Merchandise Stores, including Warehouse Clubs and Supercenters.
Used Merchandise Stores.
Vending Machine Operators.
Direct Selling Establishments.
Scheduled Air Transportation.
General Freight Trucking.
5 See docket exhibit OSHA–2021–006–0003 for
the list of industries in which establishments with
250 or more employees would no longer be required
to electronically submit Form 300A data to OSHA.
6 In 2016, OSHA established the list of industries
in current appendix A to subpart E based on a
2011–2013 three-year-average Days Away,
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Restriction, and Job Transfer (DART) rate greater
than 2.0 in the BLS Survey of Occupational Injuries
and Illnesses.
7 Note that the proposed rule would remove
NAICS 7213, Rooming and Boarding Houses, from
proposed appendix A to subpart E. That specific
NAICS industry group, which is listed in the part
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1904 Non-Mandatory appendix A to subpart B—
Partially Exempt Industries, is not routinely
required to keep OSHA injury and illness records.
However, that NAICS industry group was
mistakenly included in appendix A to subpart E
when OSHA published the 2016 final rule.
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PROPOSED APPENDIX A—Continued
2017
NAICS code
4842
4851
4852
4853
4854
4855
4859
4871
4881
4882
4883
4884
4889
4911
4921
4922
4931
5152
5311
5321
5322
5323
5617
5621
5622
5629
6219
6221
6222
6223
6231
6232
6233
6239
6242
6243
7111
7112
7121
7131
7132
7211
7212
7223
8113
8123
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
2017 NAICS title
Specialized Freight Trucking.
Urban Transit Systems.
Interurban and Rural Bus Transportation.
Taxi and Limousine Service.
School and Employee Bus Transportation.
Charter Bus Industry.
Other Transit and Ground Passenger Transportation.
Scenic and Sightseeing Transportation, Land.
Support Activities for Air Transportation.
Support Activities for Rail Transportation.
Support Activities for Water Transportation.
Support Activities for Road Transportation.
Other Support Activities for Transportation.
Postal Service.
Couriers and Express Delivery Services.
Local Messengers and Local Delivery.
Warehousing and Storage.
Cable and Other Subscription Programming.
Lessors of Real Estate.
Automotive Equipment Rental and Leasing.
Consumer Goods Rental.
General Rental Centers.
Services to Buildings and Dwellings.
Waste Collection.
Waste Treatment and Disposal.
Remediation and Other Waste Management Services.
Other Ambulatory Health Care Services.
General Medical and Surgical Hospitals.
Psychiatric and Substance Abuse Hospitals.
Specialty (except Psychiatric and Substance Abuse) Hospitals.
Nursing Care Facilities (Skilled Nursing Facilities).
Residential Intellectual and Developmental Disability, Mental Health, and Substance Abuse Facilities.
Continuing Care Retirement Communities and Assisted Living Facilities for the Elderly.
Other Residential Care Facilities.
Community Food and Housing, and Emergency and Other Relief Services.
Vocational Rehabilitation Services.
Performing Arts Companies.
Spectator Sports.
Museums, Historical Sites, and Similar Institutions.
Amusement Parks and Arcades.
Gambling Industries.
Traveler Accommodation.
RV (Recreational Vehicle) Parks and Recreational Camps.
Special Food Services.
Commercial and Industrial Machinery and Equipment (except Automotive and Electronic) Repair and Maintenance.
Drycleaning and Laundry Services.
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OSHA welcomes public comment on
the proposed changes to § 1904.41(a)(1).
2. Section 1904.41(a)(2)—Annual
Electronic Submission of 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 by Establishments With
100 or More Employees in Designated
Industries
Section 1904.41(a)(2) of the proposed
rule would add a requirement for
establishments that had 100 or more
employees at any time during the
previous calendar year, and that are in
an industry listed in proposed appendix
B to subpart E, to electronically submit
to OSHA or OSHA’s designee once a
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year, certain information from the
OSHA Forms 300, 301, and 300A.
The requirement in proposed
§ 1904.41(a)(2) for the submission of
300A data by establishments with 100
or more employees in industries listed
in proposed appendix B to subpart E
would not be new. All of the
establishments with 100 or more
employees in industries listed in
proposed appendix B to subpart E are
already required to electronically
submit 300A data to OSHA once a year
under current 29 CFR 1904.41.
However, the proposed requirement for
the electronic submission of data from
the 300 and 301 forms would be new.
As discussed above in the Regulatory
History section of this preamble, in
2016, OSHA issued a final rule that
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revised the recordkeeping regulation at
29 CFR 1904.41 to require
establishments with 250 or more
employees that are routinely required to
keep injury and illness records to
electronically submit information from
their 300 and 301 forms to OSHA once
a year. The 300 and 301 data submission
requirement from the 2016 rulemaking
was never fully implemented, and
OSHA never collected 300 and 301 data
electronically from employers covered
by the requirements in the 2016 final
rule.
In 2019, OSHA issued a final rule that
removed the requirement for the annual
electronic submission of 300 and 301
data to OSHA. In the preamble to the
2019 final rule, OSHA explained that
the 300/301 submission requirement
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was being removed because the
collection of such data would expose
sensitive worker information to a
meaningful risk of disclosure, and that
‘‘OSHA cannot justify that risk given its
resource allocation concerns and the
uncertain incremental benefits to OSHA
of collecting the data’’ (84 FR 387). In
addition, ‘‘OSHA . . . determined that
the best use of its resources [was] to
focus on data it already receives—
including a large set of data from Form
300A, as well as discrete data about
urgent issues from severe injury
reports—and has found useful in its past
experience’’ (84 FR 387).
OSHA has preliminarily determined
that the reasons given in the preamble
to the 2019 final rule for the removal of
the 300 and 301 data submission
requirement are no longer compelling.
As discussed in more detail below,
recent advancements in technology have
reduced the risk that information that
reasonably identifies individuals
directly, such as name and contact
information, will be disclosed to the
public. The improved technology used
to protect sensitive employee data will
reduce costs and resource-allocation
issues for OSHA by eliminating the
need to manually identify and remove
information that reasonably identifies
individuals directly from submitted
data. In addition, the improved
technology has decreased the resources
required to analyze the data. Moreover,
because of these improvements, OSHA
is now better able to collect, analyze,
and publish data from the 300 and 301
forms, so the anticipated benefits of
collecting the data are more certain. The
collection of case-specific data will
allow the agency to focus its
enforcement and compliance assistance
resources based on hazard-specific
information and trends, and to increase
its ability to identify emerging hazards,
at the establishment level. Accordingly,
at this point, the significant benefits of
collecting establishment-specific, casespecific data from the 300 and 301
forms outweigh the slight risk to
employee privacy.
To this point in time, OSHA has
successfully collected reference year
2016 through 2020 Form 300A data
through the OSHA Injury Tracking
Application. Approximately 300,000
records have been submitted to the
agency each year. OSHA has
successfully analyzed these data to
identify establishments with elevated
injury and illness rates and has focused
both its enforcement and outreach
resources towards these establishments.
This experience demonstrates OSHA’s
ability to collect, analyze, and use large
volumes of data to interact with
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establishments where workers are being
injured or becoming ill. However, this
same experience has demonstrated the
limits of the data currently collected.
For example, OSHA is currently
developing a National Emphasis
Program to address the hazards
associated with environmental heat.
Without case-specific injury and illness
data, the agency is unable to identify
specific establishments where workers
are suffering work-related heat
disorders. The Summary data from
Form 300A do not provide the level of
detail required to address specific
occupational hazards.
Based on the agency’s experience
with collecting and using the Form
300A data and the development of a
system to auto-code case-specific data,
OSHA is now better able to collect,
analyze, and publish data from the 300
and 301 forms, so the anticipated
benefits of collecting the data are more
certain.
a. The Data Collection Will Adequately
Protect Information That Reasonably
Identifies Individuals Directly
As explained in the 2019 final rule,
OSHA Forms 300 and 301 contain
information that reasonably identifies
individuals directly, such as name,
contact information, date of birth, and
physician name, for the workers who
experienced a recordable injury or
illness. The OSHA Forms 300 and 301
also contain fields that are not direct
identifiers but that could act as indirect
identifiers if released and combined
with other information, such as job title
on the Form 300, time employee began
work on the Form 301, and date of death
on the Form 301.
In this rulemaking, OSHA has
preliminarily determined that the
proposed data collection would
adequately protect information that
reasonably identifies individuals
directly, such as name and address,
with multiple layers of protection,
including by limiting the amount of
information submitted by employers;
reminding employers not to submit
information that reasonably identifies
individuals directly; withholding
certain fields from disclosure; and using
automated information technology to
detect and remove information that
reasonably identifies individuals
directly. In particular, advances in
neural networks and machine learning
have strengthened OSHA’s ability to
protect information that reasonably
identifies individuals directly.
First, the proposed rule would protect
information that reasonably identifies
individuals directly by limiting the
amount of information submitted by
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employers. Under proposed
§ 1904.41(b)(9), for the 300 Log, OSHA
does not intend to collect employees’
names (column B). For the 301 Incident
Report, OSHA will not collect the
following information: Employee name
(field 1), employee address (field 2),
name of physician or other health care
professional (field 6), and facility name
and address if treatment was given away
from the worksite (field 7). Since these
fields would not be collected, there
would be no risk of public disclosure of
the data in these fields.
In addition, OSHA plans to limit the
information that reasonably identifies
individuals directly collected in the
system by posting reminders to
employers to omit information that
reasonably identifies individuals
directly, such as names, addresses, or
Social Security numbers, from the text
fields they submit. OSHA routinely uses
these types of instructions, such as
when it requests comments from
stakeholders in rulemakings such as this
one (see ‘‘Instructions’’ on submitting
comments above), and has found these
reminders to be an effective manner of
preventing the unintentional
submission and collection of personal
information that reasonably identifies
individuals directly. Again, if this
information is not submitted in the first
place, there will be no risk of its
disclosure to the public.
Second, OSHA plans to design the
collection system to provide extra
protections for some of the personal
information that employers would be
required to submit under the proposal.
Specifically, the proposal would require
employers to submit the employee’s
date of birth from OSHA Form 301
(Field 3 on OSHA Form 301). However,
the agency plans to design the collection
system so that it will immediately
calculate the employee’s age based on
the date of birth entered and then store
only the employee’s age, not their date
of birth.
Third, as described in more detail
below, OSHA would seek to protect
information that reasonably identifies
individuals directly and certain other
elements of personal information
submitted under the proposed rule by
withholding certain fields from public
disclosure. The OSHA Form 301, 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. Under the provisions
about access to employees and
employee representatives in OSHA’s
recordkeeping regulation,
§ 1904.35(b)(2)(v)(A) and (B) prohibit
the release of information in fields 1
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through 9 to individuals other than the
employee or former employee who
suffered the injury or illness and his or
her personal representatives. As noted
above, OSHA’s proposal would not
require employers to submit some of
those items (fields 1, employee full
name; 2, employee address; 6, name of
physician or other health care
professional; and 7, treatment location).
In addition, consistent with
§ 1904.35(b)(2)(v)(A) and (B), OSHA
proposes to collect but would not
release the information from the
remaining fields that are likely to
contain private worker information: Age
(calculated from date of birth in field 3),
date hired (field 4), gender (field 5),
whether the employee was treated in the
emergency room (field 8), and whether
the employee was hospitalized
overnight as an in-patient (field 9).
Thus, there would be little risk of public
disclosure of this information.
Fourth, as explained above, consistent
with FOIA, OSHA does not intend to
release or post information that
reasonably identifies individuals
directly collected through proposed
§ 1904.41(a)(2) and, via the use of the
protective measures described above
and the scrubbing technology described
below, the agency preliminarily finds
that it can effectively remove such
information that reasonably identifies
individuals directly before releasing or
posting the data. Moreover, OSHA notes
that the 2019 rulemaking took an
expansive view of the term ‘‘PII.’’ For
example, in that rule, OSHA regarded
information such as descriptions of
workers’ injuries and the body parts
affected (Field F on Form 300, Field 16
on Form 301), as ‘‘quite sensitive,’’ and
stated that public disclosure of this
information under FOIA or through the
OSHA Injury Tracking Application
(ITA) would pose a risk to worker
privacy. As further justification for
deciding to rescind the requirement to
submit information from Forms 300 and
301, the agency stated that ‘‘although
OSHA believes data from Forms 300
and 301 would be exempt from
disclosure under FOIA exemptions,
OSHA is concerned that it still could be
required by a court to release the data’’
(84 FR 383).
After further consideration, OSHA has
preliminarily determined that the 2019
rule’s position on such information is at
odds with the agency’s usual practice of
releasing such data. OSHA currently
collects these forms from employers
during inspections and, when the
agency receives a FOIA request to which
these records are responsive, the only
field on OSHA Form 300 that is always
withheld from disclosure under the
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FOIA is employee name (column B).
Similarly, OSHA has often released the
fields on the right-hand side of the
OSHA Form 301 (fields 10 through 18)
in response to FOIA requests. And the
agency has regularly released similar
information contained in the OSHA
Information System (OIS) database in
response to FOIA requests. For example,
OSHA regularly releases data in the
Hazard Description and Location field
in closed cases in OIS, which often
contains specific information about
injuries. This practice of producing such
case-specific information is longstanding, and the agency has not been
notified of issues regarding employee
identification or re-identification,
despite that some of the released fields
could act as indirect identifiers if
combined with additional information
or data external to the agency release or
already in the requestor’s possession.
In addition, OSHA uses FOIA
Exemption 7(c) to withhold from
disclosure information that reasonably
identifies individuals directly, such as
Social Security numbers or telephone
numbers, included anywhere on the
three OSHA recordkeeping forms. In
addition, 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)]. Thus, for
example, although OSHA sometimes
releases information in Field 15 of the
301 incident report (‘‘Tell us how the
injury occurred’’) in response to a FOIA
request, it redacts information that
reasonably identifies individuals
directly, such as a name or Social
Security number, by applying either
Exemption 6, which permits the
withholding of information contained in
personnel and medical files or similar
files, the disclosure of which would
constitute a clearly unwarranted
invasion of personal privacy, or
Exemption 7(C), which protects
information found in law enforcement
files where disclosure could reasonably
be expected to constitute an
unwarranted invasion of personal
privacy.
Finally, OSHA preliminarily finds
that existing privacy scrubbing
technology is capable of de-identifying
certain information that reasonably
identifies individuals directly (such as
name, phone number, email address,
etc.) that may be submitted by
employers to the system. As explained
in the 2019 rulemaking, in order for
OSHA to avoid publishing information
that reasonably identifies individuals
directly that may be contained within
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18539
text fields in the employer-submitted
300 and 301 data, information that
reasonably identifies individuals
directly that has been submitted must be
identified and removed. The large
volume of information from text fields
submitted under the proposed
requirement would preclude human
review and redaction of information that
reasonably identifies individuals
directly without great expenditure of
resources. However, there are recent
advances in automated computer
programs that can detect information
that reasonably identifies individuals
directly, and which can be customized
to also replace submitted text strings
with placeholder characters or
anonymized descriptive phrasing that
indicate what type of information was
replaced. This replacement process
anonymizes and improves readability of
the text entry. For example, a telephone
number would be replaced with the
word ‘‘[number]’’ or ‘‘[telephone
number],’’ formatted to indicate a
replacement has occurred.
In general, the tasks of detecting and
categorizing information that reasonably
identifies individuals directly can be
accomplished either by automated
systems using rules-based methods,
machine-learning methods, deep
learning, or hybrid approaches using
Natural Language Processing (NLP).
NLP refers to computer algorithms that
both recognize and categorize text
strings according to tested business
rules. Machine learning methods
typically refer to trained automated deidentification using labeled test datasets
to develop relationships within the
wording of, in this case, text fields in
the Forms 300 and 301. With this
approach, the statistical likelihood of
phrases and wording being information
that reasonably identifies individuals
directly can be calculated based on
evaluating the word or phrase as well as
wording around a phrase and
throughout the passage. Detection and
anonymization rules developed with
test datasets can be examined for
accuracy, and revised as needed, by
applying de-identification protocols to a
separate set of test records or review by
an independent expert prior to use.
Deep learning systems apply
detection algorithms in a fashion that
mimics the non-linear processing of
human neural networks. ‘‘Deep’’ refers
to the number of layers through which
the data are examined to extract higher
level relationships in the input data.
The statistical methods used for this
approach are specific to the type of
domain and type of information being
processed (e.g., text or photographic
images). Deep learning solutions to
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classification of text, and the
subcategory of de-identification, can
yield results superior to classical
machine-based learning in that they can
capture contextual information in the
passage. OSHA is committed to
protecting information that reasonably
identifies individuals directly such as
name and address in published data,
and the agency intends to test multiple
applications for identifying and
removing this information using a test
database of the four free text fields, and
then analyzing the results (including
manual review) to identify the best
product.
AI or machine learning—the
technology used to detect, redact, and
remove information that reasonably
identifies individuals directly from
structured and unstructured data
fields—has advanced rapidly in recent
years. Many vendors, including large
commercial vendors, provide solutions
for securing information that reasonably
identifies individuals directly,
including Cloud-based solutions and
packages for detecting and redacting or
removing information that reasonably
identifies individuals directly from
unstructured text like the OSHA 300
and 301 data fields. For example,
Vendor A has a natural-language
processing (NLP) service that uses
machine learning to identify key words
and phrases in unstructured text to
detect and redact information that
reasonably identifies individuals
directly by replacing the term of interest
with a character. Vendor A’s service
automatically identifies personal (e.g.,
name, address, and age), financial (e.g.,
bank account and routing numbers and
PINs), technical security (e.g.,
passwords, usernames, and IP
addresses), and national (e.g., SSN and
driver’s license numbers) identifying
information. Vendor A also has a
HIPAA-eligible NLP for extracting
health data from unstructured text/data
fields, thus protecting patient
information. The initial release date for
Vendor A’s product was November 29,
2017. Similarly, Vendor B offers a
service to detect, categorize, and remove
personal identifying information (PII)
and personal health information (PHI)
in unstructured text across several predefined categories (e.g., name, job types,
email, address, phone); the initial
release date for Vendor B’s product was
March 1, 2018. Vendor C provides an
open-source package for identification,
anonymization, and redaction of certain
PII in structured and unstructured text;
the initial release date for Vendor C’s
product was March 21, 2018. Vendor D
provides a similar product that de-
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identifies sensitive data in text by
replacing it with a token, symbol, or key
thereby hiding the sensitive data. The
hidden data can only be restored with
a specific key or token that was used to
de-identify the data. The initial release
date for Vendor D’s product was March
2, 2021. Each of these commercially
available services is customizable and
could be modified to identify and
remove information that reasonably
identifies individuals directly such as
name and address from the 300 and 301
data collected.
OSHA intends to test multiple AI or
machine learning methods, including
commercial services, and analyze the
results carefully to select the best option
to secure and protect information that
reasonably identifies individuals
directly, such as name and address. No
option, including a manual review, is
100% effective. Therefore, OSHA could
consider a combination of the selected
scrubbing application supplemented by
some manual review of the data to
protect information that reasonably
identifies individuals directly.
In summary, OSHA preliminarily
finds that the agency would be able to
adequately protect workers’ information
that reasonably identifies individuals
directly (such as name and address)
using the safeguards in the proposed
rule and OSHA’s planned data
collection system, in combination with
warnings to employers and available
automated information technology. In
addition, the use of the automated
informational technology would
significantly decrease the need for the
type of resource-intensive manual
reviews that OSHA was concerned
about in the 2019 rulemaking.
Moreover, even if some of these data
were ultimately used to identify
employees, OSHA preliminarily finds
that the benefits of collecting and
publishing the data for improving safety
and health outweigh potential privacy
problems. As discussed below, the
proposed data collection will further
OSHA’s statutory mission to assure safe
and healthful working conditions for
working people by providing data
information for OSHA’s targeting and
compliance assistance efforts.
OSHA expects a Privacy Impact
Assessment to be completed before
issuing the final rule. OSHA welcomes
public comment on the issue of
collecting data that includes PII and
protecting information that reasonably
identifies individuals directly such as
name and address from disclosure.
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b. Recent Technological Developments
Have Significantly Decreased the
Resources Needed for OSHA To Collect,
Analyze, Use, and Publish
Establishment-Specific, Case-Specific
Data
In addition to the worker privacy
concerns, OSHA’s decisions in the 2019
final rule relied in part on resource
concerns. The agency preliminarily
finds that these concerns are no longer
compelling, in part, because recent
technological developments in
automated data coding for text-based
fields have made it easier and more cost
effective for OSHA to efficiently use
electronically-submitted, establishmentspecific, case-specific injury and illness
data to improve OSHA’s ability to
identify, target, and remove workplace
safety and health hazards, resulting in
the prevention of work-related fatalities,
injuries, and illnesses. The specific
estimated cost burden on OSHA and
employers for data collection is
discussed in the Preliminary Economic
Analysis section, below.
The primary information technology
improvement relates to the coding of
data. Specifically, in order to enable
OSHA and stakeholders to undertake
statistical analyses of information in text
fields in the Forms 300 and 301, which
include details regarding the
circumstances and causes of workplace
injuries and illnesses, OSHA intends to
use automated systems to assign
standardized codes based on the
information contained in the text fields
(e.g., type of accident is ‘‘fall’’).
Automated, standardized coding of
information in text fields would allow
OSHA to easily identify individual
establishments that have experienced
injuries and illnesses of a focused
interest (such as falls from heights),
assess the effectiveness of employers’
health and safety programs, and
evaluate OSHA’s assistance programs.
Standardized coding of information
from text fields in Forms 300 and 301
is already being done by BLS. Each year,
BLS collects SOII data from sampled
OSHA Forms 300 and 301, with
approximately 300,000 written
descriptions of work-related injuries
and illnesses collected by the survey.
BLS uses the information provided on
these OSHA forms to generate detailed
statistics on the case characteristics of
work-related injuries or illnesses. In
order to generate statistics, the text
entries in the OSHA forms must be
converted to standard BLS codes.
SOII data are coded according to the
BLS Occupational Injury and Illness
Classification System (OIICS) (Version
2.01). Specific codes are assigned to the
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narrative to classify case characteristics
such as the nature of the injury/illness,
the part of the body affected, the event
or exposure, and the source of the injury
or illness. Prior to 2014, BLS assigned
OIICS codes to the case narratives
manually, which was both time
consuming and subject to error. In 2014,
BLS began using machine learning to
code a subset of cases, first by selecting
a learning algorithm, then by training it
on large quantities of previously coded
SOII narratives. During this training
process, the algorithm calculated how
strongly various features, such as words,
pairs of words, and other items, were
associated with the codes that could be
assigned. After the training process, the
algorithm was used to estimate the best
codes for each uncoded narrative and
assigned the codes if the model’s
confidence exceeded a predetermined
threshold.
When codes were assigned manually,
overall accuracy was around 71%.
Accuracy with neural network
autocoding was around 82%.
Autocoding could be used for all the
information collected but performance
was worse on rarer codes. BLS decided
to use a combination of autocoding and
manual coding. From 2014 to 2017, the
percent of codes automatically assigned
rose to around 67%, but autocoding had
reached a point of diminishing returns.
With the old autocoder previously
coded narratives were broken up into
smaller pieces, typically individual
words and short word sequences, and
used to estimate how strongly each
piece was associated with each possible
code. New narratives were then coded
by identifying their individual pieces
and aggregating the previously learned
associations to choose the most closely
associated code. Some of the problems
with the old autocoder included only
identifying words in a phrase without
thought to context, i.e., ‘‘worker fell on
car’’ was the same as ‘‘car fell on
worker’’; too many two- and three-word
sequences; and separate autocoder
models for each type of information, i.e.,
separate models for occupation, nature,
part, event, and source.
However, in 2018, BLS switched to
deep neural networks. Like the older
autocoder, neural networks rely on
training data to learn and improve their
accuracy over time. 2017 research found
that the neural network autocoder
outperformed the alternatives across all
coding tasks and made an average of
24% fewer errors than the logistic
regression autocoders, and an estimated
39% fewer errors than the manual
coding process. On each task the neural
network’s accuracy was statistically
greater than the next best alternative at
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a p-value of 0.001 or less.8 By 2019,
automatic coding had been expanded to
include all six primary coding tasks
(occupation, nature, part, source,
secondary source, and event) with the
model assigning approximately 85% of
these codes.9
The BLS system is already collecting
data using OSHA Forms 300 and 301, so
OSHA should be able to mirror the BLS
system to code the OSHA data fairly
easily. OSHA could use the BLS source
code to create a pilot system where the
autocoding of realistic OSHA data could
be tested and compared to manual
coding of the same data. Upon
successful testing and adoption of the
BLS system, OSHA plans to consult and
work with BLS for the long-term system
maintenance to continuously update the
neural network code and refine
automation of the data.
Once the data were coded, OSHA
would be able to use the data similarly
to how the agency currently uses coded
data from the Severe Injury Reporting
(SIR) program. The SIR Program collects
data on all severe work-related injuries
and illnesses, defined as an amputation,
in-patient hospitalization, or loss of an
eye. Under OSHA’s recordkeeping
regulation at 29 CFR 1904.39, employers
must report certain information about
these severe injuries/illnesses to OSHA
within 24 hours of occurrence. On a
monthly basis, OSHA reviews the SIR
data and trained analysts assign OIICS
codes (nature, part, event, and source)
for each SIR narrative, thus making the
data searchable/query-able and more
useful for agency programs. See Docket
exhibit OSHA–2021–006–0005 for an
example of a search interface for the
data that would be collected under this
proposal. OSHA could also combine the
coded data with other data sources (e.g.,
inspection data or ITA data) to increase
the utility of the data.
In making these preliminary findings
for this rulemaking, OSHA notes that
some autocoding information
technology was available during the
2019 rulemaking. In fact, in the 2018
NPRM, OSHA specifically requested
comment on other agencies or
organizations that use automated coding
systems for text data in data collections
(83 FR 36494, 36500). Commenters on
this issue urged OSHA to consult with
other agencies that collect this type of
data, including the National Institute for
Occupational Safety & Health (NIOSH),
the Mine Safety and Health
8 See ‘‘Deep neural networks for worker injury
autocoding’’, Alexander Measure, U.S. Bureau of
Labor Statistics, draft as of 9/18/2017: https://
www.bls.gov/iif/deep-neural-networks.pdf.
9 See https://www.bls.gov/iif/autocoding.htm.
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Administration (MSHA), BLS, the
Federal Railroad Administration (FRA),
and the Federal Aviation
Administration (FAA), to learn about
database design and best practices for
collecting this kind of data (84 FR 389).
In its own comments, NIOSH noted that
it had already developed autocoding
methods for categorizing occupation
and industry based on free text data and
had successfully utilized similar free
text data collected from workers’
compensation claims (84 FR 389).
NIOSH also generously offered to help
OSHA with data analysis (84 FR 389).
After reviewing these comments to
the 2018 NPRM, OSHA determined that
‘‘NIOSH’s ability to analyze data
collected from Forms 300 and 301 does
not reduce the burden on OSHA to
collect the data. Even if NIOSH could
make the data useful for OSHA’s
enforcement targeting and outreach
efforts, which NIOSH itself has
suggested would present analytical
challenges due to the volume of the
data, OSHA and employers would be
left covering the expense of collection,
not to mention additional expense
associated with the need to process and
otherwise manually review data from
the forms—costs that would detract
from OSHA’s priorities of enforcement
and compliance assistance to reduce
workforce hazards’’ (84 FR 389).
Ultimately, OSHA determined that any
benefits of electronically collecting the
Form 300 and 301 data were
outweighed by the cost of developing a
system to manage that volume of data,
particularly when making use of the
data would divert resources away from
OSHA’s then-current priority of fully
utilizing Form 300A and severe injury
data for targeting and outreach (84 FR
389).
In this proposal, OSHA has specific
information from BLS regarding its
technology. Following conversations
with BLS since the 2019 rulemaking,
OSHA is confident that it would be able
to utilize similar technology in a costeffective manner to code the data from
OSHA Forms 300 and 301, avoiding
many of the resource concerns specified
in the 2019 rulemaking. Moreover, as
discussed in more detail below, OSHA
has preliminarily determined that
benefits to worker safety and health far
outweigh the potential costs of the
systems necessary to collect these data,
make them useful for analysis, analyze
them, and publish them for stakeholder
use.
In summary, available technology,
including recent improvements in
autocoding information technology,
would enable OSHA to efficiently
autocode the data from electronically-
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submitted OSHA Forms 300 and 301.
The agency would not need to rely
primarily on manual review or analysis.
Consequently, OSHA has preliminarily
determined that the agency’s 2019
resource-related concerns are no longer
compelling. The agency welcomes
public comment on the issue of
automated coding of text-field data and
other available technology that would
enable OSHA to automatically code
these data.
c. The Collection, Analysis, and
Publishing of These Data Would
Improve Worker Safety and Health
The value of the new de-identification
and autocoding information technology
discussed is significant. Most
importantly, the new autocoding
technology will allow OSHA to more
effectively focus its enforcement and
compliance assistance resources on
specific establishments experiencing
safety and health problems. Access to
case-specific injury and illness data will
also allow OSHA to better identify
safety and health hazards. For example,
unlike 300A data, which include heat
illnesses in the category ‘‘all other
illnesses’’ (Field M6), 300 and 301 data
would allow OSHA to identify
establishments with heat illnesses and
allow the agency to focus its
enforcement and compliance assistance
resources on specific industries or types
of workplaces with that specific hazard.
Similarly, 300A data group all injuries
into the single category ‘‘injuries’’ (Field
M1), but 300 and 301 data would allow
OSHA to identify establishments whose
delivery workers experience different
types of injuries, such as traffic violence
injuries or lifting injuries.
In addition, reliance on only 300A
data limits OSHA’s ability to analyze
and address existing workplace hazards.
For example, the collection of 300A data
provides OSHA with access to general
information about certain illnesses, such
as recorded cases involving workrelated respiratory illness. However, the
collection of 300A data does not provide
OSHA with information about specific
respiratory illnesses, such as cases
involving work-related COVID–19. On
the other hand, the collection and
analysis of case-specific data would
allow OSHA to identify specific
establishments that have experienced
recorded cases of work-related COVID–
19, which could result in OSHA
enforcement efforts and compliance
assistance at that facility.
Similarly, together with the other
protections proposed for the data
collection, the new de-identification
technology will allow OSHA to make
the establishment-specific, case-specific,
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data publicly available in both coded
and uncoded form, increasing
workplace safety and health while
providing protection against release of
PII. Employers, employees, employee
representatives, potential employees,
customers and potential customers,
workplace safety consultants, and
members of the general public will all
benefit from access to this information
in a timely manner. For example,
potential employees and potential
customers will be able to review casespecific injury and illness data to make
informed decisions on whether to seek
employment at, or whether to do
business with, a specific establishment.
In turn, with heightened public
awareness of injuries and illnesses at a
given establishment, individual
employers will be encouraged to
increase their focus on enhancing
workplace safety and health at their
facility.
In addition, researchers will have
access to a detailed, case-specific,
establishment-specific dataset of workrelated recordable injuries and illnesses,
improving their ability to conduct
occupational-health studies, as well as
identify increasing or emerging hazards.
For example, access to case-specific
information could be extremely useful
to individuals and public health
agencies conducting research on the
causes and prevention of work-related
COVID–19.
In summary, OSHA preliminarily
finds that the benefits for worker safety
and health of collecting, analyzing, and
publishing data from Forms 300 and 301
outweigh the cost of the actual
collection, analysis, and publication of
those data, which have been reduced
since the 2019 rule. The agency invites
comment on this preliminary
determination.
d. Data Tools Will Enable Stakeholders
To Efficiently Use OSHA-Published
Establishment-Specific, Case-Specific
Data
Once OSHA has removed PII and
coded the case-specific injury and
illness data submitted by employers, the
agency plans to make the data available
and able to be queried via a web-based
tool. Stakeholders (including employers,
employees, job-seekers, customers,
researchers, workplace safety
consultants, and the general public)
who are interested in learning about
occupational injuries and illnesses will
have access to information on when
injuries and illnesses occur, where they
occur, and how they occur.
Stakeholders could also use such a tool
to analyze injury and illness data and
identify patterns that are masked by the
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aggregation of injury/illness data in
existing data sources.
Tool functionality could include:
• The ability to compare rates with
other establishments by industry sector,
occupation, size, region, and other
variables.
• The ability to track trends and
emerging hazards over time.
• Easy searches by common variables
such as OIICS category (e.g., event),
industry sector, occupation, geography,
etc.
• Provision of related data including
workplace-specific violations, and
demographic and economic data for
reporting industries, to help
contextualize the injury and illness
data.
• Links to resources useful in
increasing workplace safety such as best
practices for the industry, injury
reduction interventions, and other
current health and safety information.
• Options for data visualization of the
submitted data (e.g., data visualizations
of trends, data table displays, reports
with summary counts and statistics).
• Flexibility for accommodating the
different needs of different types of
users (for example, an employee might
only want to access information on one
establishment, while a researcher may
want to analyze data across an entire
industry sector).
• Application programming
interfaces (APIs) that allow other webbased tools to retrieve, process, and
publish publicly-accessible OSHA data.
In developing a publicly-accessible
tool for injury and illness data, OSHA
would review how other federal
agencies, such as the Environmental
Protection Agency (EPA), have made
their data publicly available via online
tools that support some analyses.
Examples of EPA tools include:
• Toxics Release Inventory Program
Pollution Prevention (P2) Tool (https://
enviro.epa.gov/facts/tri/p2.html)
provides information that allows users
to explore and compare facility and
parent company environmental
performance with respect to the
management of toxic chemical waste,
including facilities’ waste management
practices and trends.
• Enforcement and Compliance
History Online (ECHO, https://
echo.epa.gov/) contains enforcement
and compliance information for EPAregulated facilities and allows for
analysis in trends of compliance and
enforcement and creation of
enforcement-related maps.
• Envirofacts (https://enviro.epa.gov/)
provides access to several EPA
databases containing information about
environmental activities that affect air,
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water, and land resources in the United
States. The data are in a searchable,
downloadable format.
• Enviromapper (https://
enviro.epa.gov/enviro/em4ef.home)
allows Envirofacts users to generate
maps that contain the environmental
information contained in Envirofacts.
• Discharge Monitoring Report (DMR)
Pollutant Loading Tool (https://
echo.epa.gov/trends/loading-tool/waterpollution-search/) allows users to
determine what pollutants are being
discharged into waterways and by
which companies. The output from this
tool is in the form of interactive charts
and graphs.
• Facility Level Information on
Greenhouse Gases Tool (FLIGHT,
https://ghgdata.epa.gov/ghgp/main.do)
provides information about greenhouse
gas (GHG) emissions from large facilities
in the U.S. and offers mapping, charting,
comparing, and other analysis of
facility-reported data.
Thus, OSHA preliminarily finds that
available tools could enable
stakeholders to use OSHA-published
data from Forms 300 and 301 to
improve worker safety and health.
OSHA welcomes public comment on
the utility of these data for researchers,
employers, and other stakeholders, as
well as on available data tools that
would enable these stakeholders to
efficiently use OSHA-published
establishment-specific, case-specific
data to improve worker safety and
health.
e. The Covered Industries
In proposed § 1904.41(a)(2), for
establishments with 100 or more
employees, OSHA is seeking to balance
the utility of the information collection
for enforcement, outreach, and research,
on the one hand, and the burden on
employers to provide the information to
OSHA, on the other hand. The 2016
final rule, which was subsequently
rescinded, required submission of
information from the OSHA Form 300,
301, and 300A from all establishments
with 250 or more employees in
industries routinely required to keep
part 1904 injury and illness records. In
the 2016 final rule, OSHA estimated
that establishments with 250 or more
employees covered by that section of the
submission requirement would report
713,397 injury and illness cases per
year.
For this rulemaking, to identify the
appropriate balance of utility versus
burden, OSHA analyzed five years of
injury and illness summary data
collected through OSHA’s Injury
Tracking Application (ITA). OSHA
examined combinations of
establishment size and industry
hazardousness that, like the 2016 final
rule, would provide the agency with
information on roughly 750,000 cases of
injuries and illnesses per year. Based on
this analysis, OSHA is proposing a
reporting requirement for
establishments with 100 or more
employees in 4-digit NAICS (2017)
industries that:
1. Had a 3-year-average rate of total
recordable cases (Total Case Rate, or
TCR) in the BLS SOII for 2017, 2018,
and 2019, of at least 3.5 cases per 100
full-time-equivalent employees, and
2. are included in proposed appendix
A to subpart E. (All of the industries in
proposed appendix B are also in
appendix A.)
OSHA proposes to list the designated
industries required to submit data from
all three recordkeeping forms under
proposed § 1904.41(a)(2) in proposed
appendix B to subpart E.
OSHA is proposing one exception to
these criteria, for the United States
Postal Service (USPS), which is the only
employer in NAICS 4911 Postal Service.
BLS does not include USPS in the SOII.
However, under the Postal Employees
Safety Enhancement Act (Pub. L. 105–
241), OSHA treats the USPS as a private
sector employer for purposes of
occupational safety and health, and
establishments in NAICS 4911 (i.e.,
USPS establishments) with 20 or more
employees are currently required to
electronically submit Form 300A
information to OSHA. Using the 2017,
2018, and 2019 data submitted by USPS,
OSHA calculated a TCR of 7.5 for
NAICS 4911. Because this TCR is greater
than the proposed 3.5 criterion for
designated industries in proposed
appendix B, OSHA is including NAICS
4911 in proposed appendix B to subpart
E. OSHA notes that NAICS 4911 is also
included in both current and proposed
appendix A to subpart E.
In the 2016 final rule that revised
§ 1904.41, OSHA used the rate of cases
with days away from work, job
restriction, or transfer (DART) from the
BLS SOII to determine the industries
included in appendix A to subpart E of
part 1904. However, proposed appendix
B to subpart E is based on the TCR,
which includes both cases resulting in
days away from work, job restriction, or
transfer, as well as other recordable
cases such as those resulting in medical
treatment beyond first aid. OSHA
believes that TCR is the appropriate rate
to use for determining the list of
industries in proposed appendix B to
subpart E because covered
establishments will be required to
electronically submit information to
OSHA on all of their recordable cases,
not just cases that resulted in days away
from work, job restriction, or transfer. In
2020, OSHA received submissions of
2019 Form 300A data from 46,911
establishments that had 100 or more
employees and were in one of the
industries listed in proposed appendix
B to subpart E, accounting for 680,930
total recordable cases and a TCR of 3.6.
OSHA requests comment on whether
TCR is the appropriate method for
determining the list of industries in
proposed appendix B to subpart E.
Additionally, OSHA anticipates that,
by the time that the department expects
to issue the final rule in this
rulemaking, more current industry-level
injury and illness data from BLS, as well
as more establishment-specific injury
and illness information from the ITA,
will be available. When developing the
final rule, OSHA may rely on the most
current data available, as appropriate,
for determining the list of industries in
appendix B to subpart E. OSHA seeks
comment from the public on whether
the agency should use the most current
data when developing the final rule.
The designated industries, which
would be published as appendix B to
subpart E of part 1904, are proposed to
be as follows:
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PROPOSED APPENDIX B
2017
NAICS code
1111
1112
1113
1114
1119
1121
1122
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2017 NAICS title
Oilseed and grain farming.
Vegetable and melon farming.
Fruit and tree nut farming.
Greenhouse, nursery, and floriculture production.
Other crop farming.
Cattle ranching and farming.
Hog and pig farming.
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PROPOSED APPENDIX B—Continued
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2017
NAICS code
1123
1129
1141
1151
1152
1153
2213
2381
3111
3113
3114
3115
3116
3117
3118
3119
3121
3161
3162
3211
3212
3219
3261
3262
3271
3272
3273
3279
3312
3314
3315
3321
3323
3324
3325
3326
3327
3328
3331
3335
3361
3362
3363
3366
3371
3372
4231
4233
4235
4244
4248
4413
4422
4441
4442
4451
4522
4523
4533
4543
4811
4841
4842
4851
4852
4854
4859
4871
4881
4883
4911
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2017 NAICS title
Poultry and egg production.
Other animal production.
Fishing.
Support activities for crop production.
Support activities for animal production.
Support activities for forestry.
Water, sewage and other systems.
Foundation, structure, and building exterior contractors.
Animal food manufacturing.
Sugar and confectionery product manufacturing.
Fruit and vegetable preserving and specialty food manufacturing.
Dairy product manufacturing.
Animal slaughtering and processing.
Seafood product preparation and packaging.
Bakeries and tortilla manufacturing.
Other food manufacturing.
Beverage manufacturing.
Leather and hide tanning and finishing.
Footwear manufacturing.
Sawmills and wood preservation.
Veneer, plywood, and engineered wood product manufacturing.
Other wood product manufacturing.
Plastics product manufacturing.
Rubber product manufacturing.
Clay product and refractory manufacturing.
Glass and glass product manufacturing.
Cement and concrete product manufacturing.
Other nonmetallic mineral product manufacturing.
Steel product manufacturing from purchased steel.
Nonferrous metal production and processing.
Foundries.
Forging and stamping.
Architectural and structural metals manufacturing.
Boiler, tank, and shipping container manufacturing.
Hardware manufacturing.
Spring and wire product manufacturing.
Machine shops; turned product; and screw, nut, and bolt manufacturing.
Coating, engraving, heat treating, and allied activities.
Agriculture, construction, and mining machinery manufacturing.
Metalworking machinery manufacturing.
Motor vehicle manufacturing.
Motor vehicle body and trailer manufacturing.
Motor vehicle parts manufacturing.
Ship and boat building.
Household and institutional furniture and kitchen cabinet manufacturing.
Office furniture manufacturing.
Motor vehicle and motor vehicle parts and supplies merchant wholesalers.
Lumber and other construction materials merchant wholesalers.
Metal and mineral merchant wholesalers.
Grocery and related product merchant wholesalers.
Beer, wine, and distilled alcoholic beverage merchant wholesalers.
Automotive parts, accessories, and tire stores.
Home furnishings stores.
Building material and supplies dealers.
Lawn and garden equipment and supplies stores.
Grocery stores.
Department stores.
General merchandise stores, including warehouse clubs and supercenters.
Used merchandise stores.
Direct selling establishments.
Scheduled air transportation.
General freight trucking.
Specialized freight trucking.
Urban transit systems.
Interurban and rural bus transportation.
School and employee bus transportation.
Other transit and ground passenger transportation.
Scenic and sightseeing transportation, land.
Support activities for air transportation.
Support activities for water transportation.
Postal Service.
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18545
PROPOSED APPENDIX B—Continued
2017
NAICS code
4921
4931
5322
5621
5622
6219
6221
6222
6223
6231
6232
6233
6239
6243
7111
7112
7131
7211
7212
7223
6239
6243
7111
7112
7131
7211
7212
7223
.............
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.............
.............
.............
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.............
.............
.............
.............
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.............
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.............
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.............
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.............
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2017 NAICS title
Couriers and express delivery services.
Warehousing and storage.
Consumer goods rental.
Waste collection.
Waste treatment and disposal.
Other ambulatory health care services.
General medical and surgical hospitals.
Psychiatric and substance abuse hospitals.
Specialty hospitals.
Nursing care facilities.
Residential intellectual and developmental disability, mental health, and substance abuse facilities.
Continuing care retirement communities and assisted living facilities for the elderly.
Other residential care facilities.
Vocational rehabilitation services.
Performing arts companies.
Spectator sports.
Amusement parks and arcades.
Traveler accommodation.
RV parks and recreational camps.
Special food services.
Other residential care facilities.
Vocational rehabilitation services.
Performing arts companies.
Spectator sports.
Amusement parks and arcades.
Traveler accommodation.
RV parks and recreational camps.
Special food services.
OSHA welcomes public comment on
all aspects of proposed appendix B,
including the specific issues noted
above.
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3. Section 1904.41(b)(1)(i) and (ii)
Proposed § 1904.41(b)(1) would
provide employers with further clarity
on which employers and establishments
need to submit data under proposed
§ 1904.41(a)(1) and (2) and how the
requirements of those provisions
interact with each other. These
proposed provisions, like many of the
provisions within part 1904 are written
in question-and-answer format to help
employers easily identify the
information they seek.
Proposed § 1904.41(b)(1)(i) focuses on
the issue of who must submit their
information to OSHA. Specifically, it
would reiterate the question posed in
current § 1904.41(b) (which asks
whether every employer has to routinely
make an annual electronic submission
of information from part 1904 injury
and illness recordkeeping forms to
OSHA), but update the answer to be
consistent with proposed § 1904.41(a)(1)
and (2).
Proposed § 1904.41(b)(1)(ii) would
similarly clarify that an establishment
that has 100 or more employees, and is
in an industry included in both
appendix A and appendix B, need only
make one submission of the OSHA
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Form 300A in order to fulfill the
requirements of both proposed
§ 1904.41(a)(1) and (2). Proposed
appendix B is a subset of appendix A;
i.e., all industries included in proposed
appendix B are also included in
proposed appendix A, but there are
some industries included in proposed
appendix A that are not included in
proposed appendix B.10
OSHA welcomes public comment on
proposed § 1904.41(b)(1)(i) and (ii),
including whether these proposed
provisions appropriately clarify the
proposed requirements for employers.
4. Section 1904.41(b)(9)
Proposed § 1904.41(b)(9) would pose
and answer a question regarding which
information would be required to be
submitted under proposed § 1904.41(a).
10 The differences between current appendix A
and proposed appendix A are (1) current appendix
A has 2012 NAICS industry group 4521
(Department Stores), whereas proposed appendix A
has 2017 NAICS industry groups 4522 (Department
Stores) and 4523 (General Merchandise Stores,
including Warehouse Clubs and Supercenters); (2)
current appendix A has 2012 NAICS industry group
4529 (Other General Merchandise Stores), whereas
in proposed appendix A, that industry group is
included in 2017 NAICS industry group 4523
(General Merchandise Stores, including Warehouse
Clubs and Supercenters); (3) proposed appendix A
does not include NAICS 7213, Rooming and
Boarding Houses, which is exempt from the
requirement to routinely keep injury and illness
records and was included in current appendix A in
error.
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Specifically, proposed § 1904.41(b)(9)
would ask the following question: If I
have to submit information under
paragraph (a)(2) of this section, do I
have to submit all of the information
from the recordkeeping forms?
The proposed answer would clarify
that OSHA will not require employers to
submit the following case-specific
information from the OSHA Form 300
and Form 301:
• 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).
Collecting data from these fields
would not add to OSHA’s ability to
identify establishments with specific
hazards or elevated injury and illness
rates. Therefore, OSHA proposes to
exclude these fields from the submittal
requirements to minimize any potential
release or unauthorized access to any PII
contained in the fields. Because the data
collection will not collect the
information from these fields, there will
be no risk of public disclosure of the
information from these fields through
the data collection.
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OSHA welcomes public comment on
§ 1904.41(b)(9), including whether the
specified fields should be excluded
from data that would be collected, and
whether other data should be similarly
excluded to protect employee privacy or
for other reasons. Any comments
suggesting exclusion of other fields or
data from the proposed submission
requirements should also address
whether the exclusion of that particular
field or data from collection would
hinder OSHA’s ability to use the
collection to protect employee safety
and health.
5. Section 1904.41(b)(10)
Proposed § 1904.41(b)(10) would
address an issue related to how
establishments identify themselves in
their electronic recordkeeping
submissions. As noted above, OSHA’s
recordkeeping regulation requires
employers to maintain and report their
injury and illness data at the
establishment level. An establishment is
defined as a single physical location
where business is conducted or where
services or industrial operations are
performed (see 29 CFR 1904.46). Part
1904 injury and illness records must be
specific for each individual
establishment.
Under the current requirements at 29
CFR 1904.41, a firm with more than one
establishment must submit
establishment-specific 300A data for
each establishment that meets the size
and industry reporting criteria. OSHA’s
current data submission portal, the
Injury Tracking Application (ITA),
contains two text fields used to identify
an establishment, Company Name and
Establishment Name. The Establishment
Name field is a mandatory field; the
user must make an entry in that field.
In addition, a user submitting
information for more than one
establishment must provide a unique
Establishment Name for each
establishment. In contrast, the Company
Name field is an optional field; the user
is not required to make an entry in that
field.
OSHA’s review of five years of data
electronically submitted under part
1904.41 shows that many large firms
with multiple establishments use codes
for the Establishment Name field in
their submission. A subset of these firms
use codes for the Establishment Name
field and do not provide a company
name in the Company Name field. For
example, in the 2020 submissions of
2019 Form 300A data, users submitted
data for more than 18,000
establishments with a code in the
Establishment Name field and no
information in the Company Name field.
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Unfortunately, the data are
considerably less useful and more
difficult to work with when
establishments have a code in the
Establishment Name field and no
information in the Company Name field.
For example, it is not possible for a data
user to search for data from that
company. In addition, OSHA is unable
to determine whether or not a particular
establishment in that company met the
reporting requirements. Further, since
OSHA now makes these data publicly
available, the use of codes and the lack
of information in the Company Name
field may hamper stakeholders’ and
researchers’ ability to use the
information.
To date, OSHA has made an effort to
identify and assign company names to
these establishments. For example,
sometimes OSHA is able to use the EIN
or the user’s email address to identify
the company associated with the
establishment. However, OSHA is not
always able to identify the company. In
addition, the effort requires substantial
review for verification.
To address this problem, OSHA
proposes to require employers who use
codes for the Establishment Name to
include a legal name in the Company
Name field. This requirement would be
spelled out in question-and-answer
format in proposed § 1904.41(b)(10).
The proposed provision would provide:
My company uses numbers or codes to
identify our establishments. May I use
numbers or codes as the establishment
name in my submission? Yes, you may
use numbers or codes as the
establishment name. However, the
submission must include the legal
company name, either as part of the
establishment name or separately as the
company name.
OSHA welcomes public comment on
the proposed requirement to submit the
company name, including any
comments on the utility of such a
requirement and how the company
name should be included in an
establishment’s submission.
6. Section 1904.41(c) Reporting Dates
Proposed § 1904.41(c) would simplify
the regulatory language in current
§ 1904.41(c)(1)–(2) concerning the dates
by which establishments must make
their annual submissions. Current
§ 1904.41(c)(1) included information for
establishments on what to submit to
OSHA during the phase-in period of the
2016 final rule and the deadline for
submission. That information is no
longer relevant and, thus, OSHA
proposes to remove it to streamline the
section.
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The substantive information already
contained in current § 1904.41(c)(1)
would then be consolidated into
proposed § 1904.41(c). Like current
§ 1904.41(c)(1), proposed § 1904.41(c)
would require all covered
establishments to make their electronic
submissions by March 2 of the year after
the calendar year covered by the
form(s). Proposed § 1904.41(c) would
also provide an updated example of that
requirement, i.e., it explains that the
forms covering calendar year 2021
would be due by March 2, 2022.
OSHA welcomes public comment on
these proposed revisions to § 1904.41(c).
B. Questions
OSHA welcomes comments and data
from the public regarding any aspect of
the proposed amendments to § 1904.41
Electronic Submission of Employer
Identification Number (EIN) and Injury
and Illness Records to OSHA. OSHA is
particularly interested in any comments
on these specific questions:
1. Is Total Case Rate (TCR) the most
appropriate incidence rate to use for
proposed appendix B to subpart E, or
would the Days Away Restricted or
Transferred (DART) rate be more
appropriate?
2. Is 100 or more employees the
appropriate size criterion for the
proposed requirement to electronically
submit data from the OSHA Form 300,
301, and 300A? Would a different size
criterion be more appropriate?
3. Is it appropriate for OSHA to
remove the requirement for
establishments with 250 or more
employees, in industries not included in
appendix A, to submit the information
from their OSHA Form 300A?
4. Are there electronic interface
features that would help users
electronically submit part 1904 data,
particularly for case data from the
OSHA Form 300 and Form 301 and for
establishments that submit using batch
files? For example, would it be helpful
for OSHA to provide a forms package or
software application that exports the
required files into a submission-ready
format?
5. What features could OSHA provide
to help establishments determine which
submission requirements apply to their
establishment?
6. What additional guidance could
OSHA add to the instructions for
electronic submission to remind
employers not to include information
that reasonably identifies individuals
directly in the information they submit
from the text-based fields on the OSHA
Form 300 or Form 301?
7. What other agencies and
organizations use automated de-
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identification systems to remove
information that reasonably identifies
individuals directly from text data
before making the data available to the
general public? What levels of
sensitivity for the automated system for
the identification and removal of
information that reasonably identifies
individuals directly from text data do
these agencies use?
8. What other open-source and/or
proprietary software is available to
remove information that reasonably
identifies individuals directly from text
data?
9. What methods or systems exist to
identify and remove information that
reasonably identifies individuals
directly from text data before the data
are submitted?
10. What criteria should OSHA use to
determine whether the sensitivity of
automated systems to identify and
remove information that reasonably
identifies individuals directly is
sufficient for OSHA to make the data
available to the general public?
11. What processes could OSHA
establish to remove inadvertentlypublished information that reasonably
identifies individuals directly as soon as
OSHA became aware of the information
that reasonably identifies individuals
directly?
12. OSHA is proposing not to collect
employee names under proposed
§ 1904.41(a)(2) and (b)(9), consistent
with worker privacy concerns expressed
in public comments during previous
rulemakings. However, BLS uses the
‘‘employee name’’ field on the Form 300
and Form 301 in their data collection for
the SOII. Beginning in 2021, a datasharing feature has allowed some
establishments that are required to
submit Form 300A information to both
OSHA and BLS, under the current
regulation, to use their data submission
to the OSHA ITA in their submission to
the BLS SOII. BLS anticipates an
inability to use this data-sharing feature
for establishments required to submit
under proposed § 1904.41(a)(2), unless
OSHA requires these establishments to
submit the ‘‘employee name’’ field on
the Form 300 and 301. Without the datasharing feature, establishments that
submit data to OSHA under proposed
§ 1904.41(a)(2), and that also submit
data to the BLS SOII, would not be able
to use their OSHA data submission of
case-specific data to prefill their BLS
SOII submission. What would be the
advantages and disadvantages, in terms
of employer burden and worker privacy
concerns or otherwise, of requiring all
establishments subject to proposed
§ 1904.41(a)(2) to submit employee
names, to support this data-sharing
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feature for Form 300 and 301
submissions? (Please note that OSHA
would not intend to publish employee
names.)
13. NAICS codes are reviewed and
revised every five years to keep the
classification system current with
changes in economic activities. The
2022 NAICS became effective on
January 1, 2022. Going forward, OSHA
intends to use the 2022 NAICS in the
ITA for establishments that are newly
creating accounts. However, for
establishments that already have
accounts in the ITA, the version of
NAICS used is the 2012 NAICS. BLS
anticipates that establishments that
already have accounts in the ITA, are
also subject to the SOII, and have 2022
NAICS codes that are different from
their 2012 NAICS codes, would be
unable to use the data-sharing feature
(also discussed in question 13) to prefill
their BLS SOII submission with data
already submitted through the OSHA
ITA, unless these establishments
updated their accounts to revise their
industry classification from the 2012
NAICS to the 2022 NAICS. What are the
advantages and disadvantages of
requiring establishments that already
have accounts in the ITA to update their
accounts to the 2022 NAICS? How much
time would an establishment require to
determine whether their 2022 NAICS is
different from their 2012 NAICS? How
much time would an establishment
require to edit their NAICS code in the
ITA to reflect any changes?
14. In addition to the automated
methods for coding text-based data
discussed above, what additional
automated methods exist to code textbased data?
15. What are some ways that
employers could use the collected data
to improve the safety and health of their
workplaces?
16. What are some ways that
employees could use the collected data
to improve the safety and health of their
workplaces?
17. What are some ways that federal
and state agencies could use the
collected data to improve workplace
safety and health?
18. What are some ways that
researchers could use the collected data
to improve workplace safety and health?
19. What are some ways that
workplace safety consultants could use
the collected data to improve workplace
safety and health?
20. What are some ways that members
of the public and other stakeholders,
such as job-seekers, could use the
collected data to improve workplace
safety and health?
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18547
21. Are there potential negative
consequences to the collection of this
data that OSHA has not considered
here?
22. The proposed regulatory text is
structured as follows: § 1904.41(a)(1)
Annual electronic submission of
information from OSHA Form 300A
Summary of Work-Related Injuries and
Illnesses by establishments with 20 or
more employees in designated
industries; § 1904.41(a)(2) Annual
electronic submission of information
from OSHA Form 300 Log of WorkRelated Injuries and Illnesses, OSHA
Form 301 Injury and Illness Incident
Report, and OSHA Form 300A
Summary of Work-Related Injuries and
Illnesses by establishments with 100 or
more employees in designated
industries. This is the structure used by
the 2016 and 2019 rulemakings. An
alternative structure would be as
follows: § 1904.41(a)(1) Annual
electronic submission of information
from OSHA Form 300A Summary of
Work-Related Injuries and Illnesses by
establishments with 20 or more
employees in designated industries;
§ 1904.41(a)(2) Annual electronic
submission of information from OSHA
Form 300 Log of Work-Related Injuries
and Illnesses and OSHA Form 301
Injury and Illness Incident Report by
establishments with 100 or more
employees in designated industries.
Which structure would result in better
understanding of the requirements by
employers?
IV. Preliminary Economic Analysis and
Regulatory Flexibility Certification
A. Introduction
Executive Orders 12866 and 13563
direct agencies to assess the costs and
benefits of the intended regulation and,
if regulation is necessary, to select
regulatory approaches that maximize
net benefits (including potential
economic, environmental, and public
health and safety effects; distributive
impacts; and equity). Executive Order
13563 emphasized the importance of
quantifying both costs and benefits, of
reducing costs, of harmonizing rules,
and of promoting flexibility. This rule is
not an economically significant
regulatory action under section 3(f) of
Executive Order 12866 and has been
reviewed by the Office of Information
and Regulatory Affairs in the Office of
Management and Budget, as required by
executive order.
OSHA estimates that this rule will
have economic costs of $4.3 million per
year, including $3.9 million per year to
the private sector, with average costs of
$81 per year for affected establishments
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with 100 or more employees,
annualized over 10 years with a
discount rate of seven percent. The
agency believes that the annual benefits,
while unquantified, significantly exceed
the annual costs.
The proposed 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 an economically
significant regulatory action or major
rule. This Preliminary Economic
Analysis (PEA) addresses the costs,
benefits, and economic impacts of the
proposed rule.
OSHA is proposing to amend its
recordkeeping regulations to revise the
requirements for the electronic
submission of information from part
1904 injury and illness recordkeeping
forms (§ 1904.41—Electronic submission
of injury and illness records to OSHA).
First, OSHA will require all
establishments that have 20 or more
employees and are in certain designated
industries to electronically submit
information from the OSHA Form 300A
Annual Summary to OSHA or OSHA’s
designee once a year (proposed
§ 1904.41(a)(1) Annual electronic
submission of information from OSHA
Form 300A Summary of Work-Related
Injuries and Illnesses by establishments
with 20 or more employees in
designated industries).
The current requirement
(§ 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.)
applies only to establishments with
fewer than 250 employees in industries
designated by appendix A to subpart E
of part 1904. However, establishments
with 250 or more employees in these
industries are also currently required to
submit this information under current
§ 1904.41(a)(1) Annual electronic
submission of OSHA Form 300A
Summary of Work-Related Injuries and
Illnesses by establishments with 250 or
more employees. Note that OSHA is
proposing to revise appendix A to
update the list of industries from the
2012 to the 2017 NAICS.
Second, OSHA will require all
establishments that have 100 or more
employees and are in certain designated
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industries to electronically submit
information from the OSHA Forms 300,
301, and 300A to OSHA or OSHA’s
designee (proposed § 1904.41(a)(2)
Annual electronic submission of
information from OSHA Form 300 Log
of Work-Related Injuries and Illnesses,
OSHA Form 301 Injury and Illness
Incident Report, and OSHA Form 300A
Summary of Work-Related Injuries and
Illnesses by establishments with 100 or
more employees in designated
industries). The industries are
designated by proposed appendix B to
subpart E of part 1904.
As discussed above, the current
§ 1904.41(a)(1) Annual electronic
submission of OSHA Form 300A
Summary of Work-Related Injuries and
Illnesses by establishments with 250 or
more employees requires submission of
the Form 300A from all establishments
that have 250 or more employees and
that are in industries routinely required
to keep part 1904 records. Under the
proposed revisions, establishments that
have 250 or more employees would only
have to routinely make electronic
submissions of part 1904 information if
they are in an industry in appendix A
to subpart E (proposed § 1904.41(a)(1))
or in appendix B to subpart E (proposed
§ 1904.41(a)(2)), which is a subset of
appendix A. The proposed rule will
remove the requirement for routine
electronic submission of Form 300A
information from establishments with
250 or more employees in all other
industries (i.e., industries that are not
included in appendix A or proposed
appendix B).
Under proposed § 1904.41(b)(9),
OSHA will not collect the following
case-specific information from the Form
300 and Form 301 submitted by
establishments with 100 or more
employees in designated industries
under proposed § 1904.41(a)(2):
(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).
The OSHA Form 300A does not have
any case-specific information.
In addition, under proposed
§ 1904.41(b)(10), OSHA will require
establishments that are required to
electronically report information from
their injury and illness records to OSHA
under part 1904, to include their
company name as part of the
submission.
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Finally, OSHA proposes language in
proposed § 1904.41(b)(1)(i) and (ii) to
further clarify the requirements spelled
out in proposed § 1904.41(a)(1) and (2)
and current § 1904.41(a)(3), and, in
proposed § 1904.41(c), OSHA proposes
updates to the reporting deadlines.
B. Costs
1. Section 1904.41(a)(1) Annual
Electronic Submission of Information
From OSHA Form 300A Summary of
Work-Related Injuries and Illnesses by
Establishments With 20 or More
Employees in Designated Industries
Currently, two groups of
establishments are required to submit
information from the Form 300A annual
summary, under two separate
requirements: § 1904.41(a)(1) For all
establishments with 250 or more
employees in all industries where
establishments must routinely keep part
1904 injury and illness records, and
§ 1904.41(a)(2) for establishments with
20 or more employees in the industries
designated in appendix A to subpart E.
In contrast, under the proposed
revisions, only establishments with 20
or more employees in the industries
designated in appendix A to subpart E
would be required to submit
information from the Form 300A annual
summary. (As noted above, although
proposed § 1904.41(a)(2) also requires
employers in the industries designated
in appendix B to submit information
from their Form 300A annual summary,
those industries are a subset of the
industries listed in appendix A, so no
new submission would be required (see
proposed § 1904.41(b)(1)). Thus, the net
effect of this section is to reduce the
number of establishments that are
required to submit information from the
Form 300A annual summary. This
section calculates the cost savings
resulting from the reduction in number
of establishments that are required to
submit information from the Form 300A
annual summary.
For this part of the proposed rule,
OSHA obtained the estimated cost of
electronic hour (in dollars) of the person
expected to perform the task of
electronic submission by multiplying
the estimated total 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
estimated occupation-specific wage
rates from BLS 2020 Occupational
Employment and Wage Statistics data
(BLS, May 2020), reporting a mean
hourly wage of $37.55 for Occupational
Health and Safety Specialists (19–5011
in the 2018 Standard Occupational
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Classification System (SOC); formerly
29–9011 in the 2010 SOC System).11
Note that this is the same occupational
classification that OSHA used in the
Final Economic Analysis (FEA) in the
2016 final rule, based on public
comments, as well as in the 2018 notice
of proposed rulemaking and 2019 final
rule.
Next, OSHA used June 2021 data from
the BLS National Compensation Survey,
reporting a mean fringe benefit factor of
1.45 for civilian workers in general.12
OSHA then multiplied the mean hourly
wage ($37.55) by the mean fringe benefit
factor (1.45) to obtain an estimated total
compensation (wages and benefits) for
Occupational Health and Safety
18549
Specialists of $54.58 per hour ([$37.55
per hour] × 1.45). OSHA next applied a
17% overhead rate to the base wage
([$37.55 per hour] × [0.17]), totaling
$6.38.13 The $6.38 was added to the
total compensation ($54.58) yielding a
fully loaded wage rate of $60.96 [$54.58
+ $6.38].14
TABLE X.Y—LOADED WAGE USED IN ANALYSIS, INCLUDING OVERHEAD COST 1
Occupational
code
Occupation description
Occupational Health and Safety Specialists ...........................................................................................................
2 19–5011
Loaded wage
rate
$60.96
1 Source:
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OSHA, based on BLS (May 2020) and BLS (June 17, 2021).
2 OMB issued revised SOC codes in 2017, changing SOC 29–9011 to SOC 19–5011. The 2010 SOC to the 2018 SOC crosswalk can be
downloaded here (accessed July 2021): https://www.bls.gov/soc/2018/crosswalks_used_by_agencies.htm.
For time required for the data
submission, OSHA used the time
estimate of 10 minutes per
establishment for the OSHA Form 300A
from the current information collection
for Recordkeeping and Reporting
Occupational Injuries and Illnesses (29
CFR part 1904) (OMB Control Number
1218–0176). OSHA then multiplied this
time by the total compensation of
$60.96 per hour to obtain an estimated
submission cost per establishment of
$10.16 [($60.96/hour) × (1 hour/60
minutes) × (10 minutes)].
Then OSHA multiplied this
submission cost per establishment by
the estimated number of establishments
that would no longer be required to
submit data, to obtain the total
estimated cost savings of this part of the
proposed rule. In the 2020 data
collection, there were 2,665
establishments with 250 or more
employees, in an industry not in
appendix A, which submitted
information from the 2019 OSHA Form
300A to OSHA.
Thus, OSHA estimates the total
annual cost savings of this part of the
proposed rule as $27,077 [(2,665
establishments no longer required to
electronically submit Form 300A
information) × ($10.16 per
establishment for electronic submission
of Form 300A information per year)].
OSHA welcomes public comment on
this estimate.
2. Section 1904.41(a)(2)—Annual
Electronic Submission of Information
From OSHA Form 300 Log of WorkRelated Injuries and Illnesses, OSHA
Form 301 Injury and Illness Incident
Report, and OSHA Form 300A
Summary of Work-Related Injuries and
Illnesses by Establishments With 100 or
More Employees in Designated
Industries
This proposed section would require
establishments that have 100 or more
employees and that are in the industries
included in proposed appendix B to
submit the information from the OSHA
Form 300 Log, OSHA Form 301 incident
report, and OSHA Form 300A annual
summary. Note that all of the
establishments affected by this
requirement are already currently
required to submit the information from
their OSHA Form 300A. Consequently,
this section calculates only the
additional costs for these establishments
of submitting the information from the
OSHA Form 300 and 301.
Based in part on OSHA’s previous
experience, the agency estimates that
establishments will first need to take 10
minutes, on average, to familiarize
themselves with changes to the existing
recordkeeping requirements within this
proposed rule.15 Thus, the agency
calculates a one-time cost for
familiarization of $497,033 [(48,919
establishments) times (ten minutes/
establishment) times (1 hour/60
minutes) times ($60.96/hour)].
Annualizing this rate over 10 years with
a seven percent discount rate produces
an annual cost of $70,782 to the private
sector.
In the 2020 data collection of 2019
OSHA Form 300A data, establishments
with 100 or more employees, in
appendix B industries, reported 718,316
cases to OSHA. For time required for
data submission of the OSHA Form 300
and 301, OSHA estimates 10 minutes
per case, based on the current
Information Collection Request (ICR).
Note that this may overestimate costs,
because while OSHA’s estimates reflect
manual entry of the data for each case,
in the agency’s experience, roughly half
of the covered establishments submit
data to the ITA by uploading a batch
file. In general, OSHA expects
companies with many establishments/
many cases to have computer systems
that can export their part 1904 injury
and illness recordkeeping data into an
easily-uploaded file format. OSHA seeks
comment on this point.
OSHA estimates that half of the
establishments submitting reports
(24,460) will submit 359,193 cases total
(half of the overall total number of
718,386 cases) via batch file—one batch
file per establishment.16 This yields an
estimated cost of $248,517 [(24,460
establishments) times (10 minutes/
establishment) times (1 hour/60
minutes) times ($60.96/hour)]. The
average cost per establishment would be
$10.16 per establishment.
11 OMB issued revised SOC codes in 2017,
changing SOC 29–9011 to SOC 19–5011. The 2010
SOC to the 2018 SOC crosswalk can be downloaded
here (accessed July 2021): https://www.bls.gov/soc/
2018/crosswalks_used_by_agencies.htm.
12 Fringe benefit factor calculated as [1/(1–0.312)],
where 0.312 is the percent of the average total
benefits of civilian workers in all industries, as
reported on Table 2 of the BLS’s ECEC report, June
2021: https://www.bls.gov/news.release/
ecec.t02.htm.
13 17 percent is OSHA’s standard estimate for the
overhead cost incurred by the average employer.
14 See docket exhibit OSHA–2021–006–0002 for a
spreadsheet with the full calculations.
15 For example, OSHA added an estimate of 10
minutes of familiarization time to its 2016
Recordkeeping regulation (81 FR 29680), in
response to public comments.
16 Review of the 2019 Form 300A data submitted
through the ITA in 2020 shows that 44% of
establishments with 100 or more employees in
proposed appendix B submitted their data by
uploading a batch file. OSHA expects that this
percentage would increase to 50% or more for two
reasons. First, the increase in the amount of data
required from these establishments would make the
batch-file upload a more efficient method of
submission for more establishments. Second, OSHA
plans to make it easier for users to submit a batch
file by providing a set of forms that allow users to
create the export file for batch-file submission.
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Federal Register / Vol. 87, No. 61 / Wednesday, March 30, 2022 / Proposed Rules
OSHA estimates that the other half of
the establishments (24,460) will
manually submit each case individually.
The mean number of cases per
establishment is 14.7 (718,386 total
cases divided by 48,919 total
establishments). For manual
submission, OSHA estimates a time of
10 minutes per case, or 147 minutes per
establishment for the mean number of
cases. This produces a total cost for
manual submission of $3,649,520
[(48,919 establishments) times (10
minutes/case) times (14.7 cases) times (1
hour/60 minutes) times ($60.96/hour)],
or $149 per establishment [(14.7 cases)
times (1 hour/60 minutes) times
($60.96/hour)].
Summing the estimated batch-file
($248,517) and manual submission
($3,649,520) costs results in an
estimated total cost of $3,898,037 to
submit the 718,316 records. Combined
with the annualized cost of $70,782 per
year for familiarization estimated above
(at seven percent), the estimated total
annual private-sector cost of this part of
the proposed rule is $3,968,819. To
obtain the estimated average cost of
submission per establishment of $81.13,
OSHA divided the total estimated cost
of submission ($3,968,819) by the
estimated number of establishments that
would be required to submit data
(48,919 establishments).
For reference, as explained above,
48,919 establishments with 100 or more
employees, in proposed appendix B,
submitted CY 2019 Form 300A
information about 718,386 cases to
OSHA in 2020. The mean number of
cases per establishment is 14.7, and the
median number of cases per
establishment is seven. However, some
establishments will have no recordable
injuries in a given year, and their time
burden will be zero minutes. In contrast,
establishments with many recordable
injuries and illnesses could have a time
burden of multiple hours if they enter
the data manually. OSHA preliminarily
believes that the establishments that
submit a single batch file are more likely
to be among the establishments with
many cases, while the establishments
that submit cases manually are more
likely to be among the establishments
with only a few cases. Thus, OSHA’s
estimate of half of establishments
submitting half of cases manually may
result in an overestimate of the total and
per-establishment costs of this part of
the proposed rule.
OSHA welcomes public comment on
these estimates, including on time
necessary to prepare and submit a batch
file and on establishments’
considerations for deciding to submit
via batch file versus manual submission.
because these costs represent a
significant fraction of the total costs of
the new requirement. OSHA received
estimates for the costs from the US
Department of Labor Office of the Chief
Information Officer (DOL OCIO).
Based on the DOL OCIO estimates
shown in the table below, OSHA is
estimating that modification of the
reporting system hardware and software
infrastructure to accept submissions of
Form 300 and 301 data will have an
initial one-time cost of $1.2 million.
TABLE V–1—ESTIMATES OF THE COST
OF SOFTWARE DESIGN AND DEVELOPMENT
3. Section 1904.41(b)(10)
This proposed section would require
establishments to provide their
company name as part of their
submission, either included in the
establishment name or separately as the
company. For this part of the proposed
rule, based on submissions of
information from the 2019 Form 300A
to the ITA in 2020, OSHA estimates that
18,182 establishments do not include
the company name. The time necessary
to include the company name is
included in the PEA estimate of 10
minutes per submission per
establishment. OSHA has also
preliminarily determined that this
requirement will result in a small,
unquantified benefit/cost-savings for the
government, due to no longer needing to
spend time trying to assign company
names to establishments with coded
names.
OSHA welcomes public comment on
these preliminary determinations.17
4. Budget Costs to the Government for
the Creation of the Reporting System,
Helpdesk Assistance, and
Administration of the Electronic
Submission Program
Lower cost
range
Upper cost
range
Development ......
Cyber/ATO
Cloud ........
Migration ...
$516,417.00
150,000.00
20,000.00
100,000.00
$866,250.00
200,000.00
20,000.00
150,000.00
Total ......
786,417.00
1,236,250.00
Annualized over 10 years at a seven
percent discount rate, $1.2 million is
$170,853 per year, or $140,677
annualized over 10 years at three
percent. OSHA also estimates $201,128
as the annual cost of additional
transactions ($0.28 per case times
718,316 cases). Finally, OSHA estimates
that annual help desk support costs will
increase by $25,000. This estimate is
based on the annual help desk support
costs under the current provisions.
5. Total Costs of the Rule
As shown in the table below, the total
costs of the proposed rule would be an
estimated $4.3 million per year.
In this preliminary economic analysis,
OSHA is including an estimate of the
costs of the proposed new requirement,
TABLE V–2—TOTAL COSTS OF THE PROPOSED RULE 18
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Cost element
Annual costs
Annual electronic submission of OSHA Form 300A annual summary by establishments with 20 or more employees in designated industries ..........................................................................................................................
Annual electronic submission of OSHA Form 300 Log and OSHA Form 301 Incident Report by establishments
with 100 or more employees in designated industries ........................................................................................
Submission cost ...............................................................................................................................................
Cost of rule familiarization ................................................................................................................................
Total Private Sector Costs .......................................................................................................................................
Total Government Costs ..........................................................................................................................................
17 OSHA does not anticipate that the proposed
revisions to § 1904.41(b)(1)(i), (b)(1)(ii), or (c) would
have any substantial costs associated with them.
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18 See docket exhibit OSHA–2021–006–0002 for
the full calculations.
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One-time
costs 1
($27,077)
3,968,819
3,898,037
2 70,782
3,941,741
397,001
$497,033
Federal Register / Vol. 87, No. 61 / Wednesday, March 30, 2022 / Proposed Rules
18551
TABLE V–2—TOTAL COSTS OF THE PROPOSED RULE 18—Continued
Cost element
Annual costs
One-time
costs 1
Processing of annual submission of cases ......................................................................................................
Increased help desk support ............................................................................................................................
Software design/development ..........................................................................................................................
201,148
25,000
3 170,853
1,200,000
Total ...........................................................................................................................................................
4 4,338,742
1,697,033
1 The
annualized one-time costs appear in the Annual Costs column. The one-time costs are not additional costs.
annualized over 10 years at 7%. $58,313 if annualized at 3%.
3 If annualized over 10 years at 7%. $140,677 if annualized at 3%.
4 Includes the one-time costs for rule familiarization and software design and development, annualized over 10 years at 7%.
2 If
OSHA welcomes public comment on
this analysis.
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C. Benefits
The main purpose of the proposed
rule is to prevent worker injuries and
illnesses through the collection and use
of timely, establishment-specific and
case-specific injury and illness data.
With the information obtained through
this proposed rule, employers,
employees, employee representatives,
the government, and researchers will be
better able to identify and mitigate
workplace hazards and thereby prevent
worker injuries and illnesses.
The proposed rule would 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 the proposed 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 2.7 million recordable nonfatal injuries and illnesses at work,19
and this number is widely recognized to
be an undercount of the actual number
of occupational injuries and illnesses
that occur annually.20 As described
19 See ‘‘EMPLOYER-REPORTED WORKPLACE
INJURIES AND ILLNESSES—2020’’, news release
from the Bureau of Labor Statistics/U.S. Department
of Labor, 10:00 a.m. (ET) Wednesday, November 3,
2021.
20 See e.g., Leigh JP, Du J, McCurdy SA. An
estimate of the U.S. government’s undercount of
nonfatal occupational injuries and illnesses in
agriculture. Ann Epidemiol. 2014 Apr;24(4):254–9.
doi: 10.1016/j.annepidem.2014.01.006. Epub 2014
Jan 22. PMID: 24507952; PMCID: PMC6597012;
Spieler EA, Wagner GR. Counting matters:
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above, the proposed rule would increase
the agency’s ability to focus resources
on 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 leverage its resources for
workplace safety at the many thousands
of establishments in which workers are
being injured or made ill but which
OSHA does not have the resources to
inspect.
The proposed requirement would
help OSHA encourage employers to
prevent worker injuries and illnesses by
greatly expanding OSHA’s access to the
establishment-specific, case-specific
information employers are already
required to record under part 1904. The
proposed provisions requiring regular
electronic submission of case-specific
injury and illness data would allow
OSHA to obtain a much larger data set
of more timely, establishment-specific
information about injuries and illnesses
in the workplace. This information
would help OSHA use its enforcement
and compliance assistance resources
more effectively by enabling OSHA to
identify the workplaces where workers
are at greatest risk. For example, OSHA
could send hazard-specific educational
materials to employers who reported
cases related to those hazards. In
addition, as discussed above, OSHA
would 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 proposed collection would
provide establishment-specific, casespecific injury and illness data for
Implications of undercounting in the BLS survey of
occupational injuries and illnesses. Am J Ind Med.
2014 Oct;57(10):1077–84. doi: 10.1002/ajim.22382.
PMID: 25223513.
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analyses that are not currently possible.
For example, OSHA could analyze the
case-specific data collected under this
system to answer the following
questions:
1. Within a given industry, what are
the characteristics of recorded injuries
or illnesses related to specific hazards
(for example, fall from ladder or heat)?
2. Within a given industry, what are
the relationships between an
establishment’s hazard-specific/casespecific 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. What are the changes in hazardspecific injuries or illnesses in a
particular industry over time?
Furthermore, access to establishmentspecific, case-specific injury and illness
data will enable OSHA to improve its
evaluations of 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 would be able to
compare the incidence and
characteristics of heat-related illnesses
before and after promulgation of a
regulation on heat injury and illness
prevention in outdoor and indoor work
settings, thereby allowing the agency to
evaluate the implementation and
effectiveness of the regulation.
OSHA’s collection and publication of
establishment-specific, case-specific
injury and illness data would also
encourage employers with 100 or more
employees to prevent injuries and
illnesses among their employees,
because
• Employers would prefer to support
their reputations as good places to work
at or do business with;
• Employers in a given high-hazard
industry would be able to compare their
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workplace’s experience with a
particular hazard with the experiences
at other workplaces, allowing them to
set hazard-abatement goals
benchmarked to comparable
establishments in their industry.
• Employees in establishments with
100 or more employees would be able
to access the case-specific injury and
illness information without having to
request the information from their
employers; this, in turn, would allow
the employees in these establishments
to better identify hazards within their
own workplace and to take actions to
have the hazards abated.
• Prospective employees would have
access to data about specific hazards of
particular concern, such as lead or
trench collapses, allowing them to make
a more informed decision about a future
place of employment; this, in turn,
would encourage employers to abate
these hazards because potential
employees, especially the ones whose
skills are most in demand, might be
reluctant to work at establishments that
did not abate these hazards.
• Potential investors and the public
would also have access to information
about an establishment’s experience
with specific hazards, allowing them to
preferentially invest in or patronize
businesses that have successfully abated
the hazards common in a given
industry; this, in turn, would encourage
employers to abate the hazards in order
to attract investors and/or customers.
Finally, disclosure of and access to
establishment-specific, case-specific
injury and illness data have the
potential to improve research on the
distribution and determinants of
workplace hazards, and therefore to
prevent workplace injuries and illnesses
from occurring by abating those hazards.
Using data collected under the proposed
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 proposed rule
could also allow researchers to identify
patterns of hazard-specific injuries or
illnesses that are masked by the
aggregation of injury/illness data in the
SOII.
The availability of case-specific,
establishment-specific injury and illness
data would also be of great use to
county, state and territorial health
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departments and other public
institutions charged with injury and
illness surveillance. In particular,
aggregation of case-specific,
establishment-specific injury and illness
reports and rates from similar
establishments would 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 proposed rule to identify
establishments whose injury/illness
records suggest that the establishments
would benefit from their services to
abate particular hazards or sets of
hazards. In general, online access to this
large database of establishment-specific,
case-specific injury and illness
information would support the
development of innovative ideas for
improving workplace safety and health,
and would better the ability of everyone
with a stake in workplace safety and
health to participate in improving
occupational safety and health.
Furthermore, because the data would
be publicly available, industries, trade
associations, unions, and other groups
representing employers and workers
would be able to evaluate the
effectiveness of privately-initiated
hazard-abatement initiatives that affect
groups of establishments. In addition,
linking these data with data residing in
other administrative data sets would
enable researchers to conduct rigorous
studies that will increase our
understanding of injury/illness
causation, prevention, and
consequences.
Public access to these data would
enable developers of software
applications to develop tools that
facilitate use of these data by employers,
workers, researchers, consumers and
others. Examples of this in other areas
include apps for finding and comparing
nursing homes, creating thematic maps
of data from the American Community
Survey, and obtaining real-time
information on stream levels or bus/
subway arrivals.
The database resulting from this
proposed rule would enable the
collection and publication of casespecific, establishment-specific data
without having to work under the
restrictions imposed by the Confidential
Information Protection and Statistical
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Efficiency Act (CIPSEA) to protect
information acquired for statistical
purposes under a pledge of
confidentiality. It would also provide
data on injuries and illnesses 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 or cases
involving job transfer or restricted work
activity.
D. Economic Feasibility
OSHA preliminarily concludes that
the proposed rule will be economically
feasible. For establishments with 100 or
more employees in the industries
designated in proposed appendix B, the
average additional cost of submitting
information from the OSHA Form 300
and 301 will be $81 per year. These
costs will not affect the economic
viability of these establishments.
E. Alternatives
1. Appendix A (industries where
establishments with 20 or more
employees are required to submit
information from the OSHA Form 300A)
is based on 2011–2013 injury rates from
the SOII. OSHA could update appendix
A to reflect the 2017–2019 injury rates
from the SOII. This would result in the
addition of one industry (NAICS 4831
(Deep sea, coastal, and great lakes water
transportation)) and the removal of 13
industries, as follows:
• 4421 Furniture Stores
• 4452 Specialty Food Stores
• 4853 Taxi and Limousine Service
• 4855 Charter Bus Industry
• 5152 Cable and Other Subscription
Programming
• 5311 Lessors of Real Estate
• 5321 Automotive Equipment Rental
and Leasing
• 5323 General Rental Centers
• 6242 Community Food and Housing,
and Emergency and Other Relief
Services
• 7132 Gambling Industries
• 7212 RV (Recreational Vehicle) Parks
and Recreational Camps
• 7223 Special Food Services
• 8113 Commercial and Industrial
Machinery and Equipment (except
Automotive and Electronic) Repair
and Maintenance.
OSHA is proposing not to modify
appendix A because it took several years
for the regulated community to
understand which industries were and
were not required to submit
information. Misunderstandings result
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in both underreporting and
overreporting. OSHA preliminarily
believes that changing the requirements
now would result in confusion for the
regulated community. However, OSHA
welcomes public comment on this
alternative.
2. OSHA could regularly update the
list of designated industries in proposed
appendix B (industries where
establishments with 100 or more
employees must submit information
from the Form 300 and 301 as well as
the 300A)—for example, every 6 years,
to align with the PRA approval periods.
In the 2016 final rule, OSHA agreed
with the commenters who stated that
the list of designated industries
[appendix A, in this case] should not be
updated each year. OSHA believed that
moving industries in and out of the
appendix each year would be confusing.
OSHA also believed that keeping the
same industries in the appendix each
year would increase the stability of the
system and reduce uncertainty for
employers. Accordingly, OSHA did not,
as part of that rulemaking, include a
requirement to annually or periodically
adjust the list of designated industries to
reflect more recent BLS injury and
illness data. OSHA committed that any
such revision to the list of industries in
the future would require additional
notice and comment rulemaking.
However, OSHA again welcomes public
comment on this alternative for this
rulemaking.
F. Regulatory Flexibility Certification
The part of the proposed rule
requiring submission of Form 300 and
301 information from establishments
with 100 or more employees in
designated industries will affect some
small entities, according to the
definition of small entity 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 many firms with 100 or
more employees that meet SBA smallbusiness definitions. In other sectors,
such as manufacturing, many SBAdefined small businesses will be subject
to this rule. Thus, this part of the
proposed rule will affect a small
percentage of all small entities.
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 proposed
rules on small businesses suggest that if
costs are greater than 1 percent of
revenues or 5 percent of profits for the
average firm, then OSHA conducts an
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additional assessment. To meet this
level of significance at an estimated
annual average cost of $81.13 per
affected establishment per year, annual
revenues for an establishment with 100
or more employees would have to be
less than $8,113, and annual profits
would have to be less than $1,623.
According to the 2017 Economic
Census,21 there are no impacted
industries that have revenues less than
$8,113. Furthermore, based on the 2013
Corporation Source Book,22 there are no
impacted industries earning less than
$1,623.
As a result of these considerations,
per section 605 of the Regulatory
Flexibility Act, OSHA certifies that the
rule will not, if promulgated, have a
significant economic impact on a
substantial number of small entities.
Thus, OSHA has not prepared an initial
regulatory flexibility analysis. OSHA is
interested in comments on this
certification.
V. OMB Review Under the Paperwork
Reduction Act of 1995
A. Overview
OSHA is proposing to amend its
occupational injury and illness
recordkeeping regulation, 29 CFR
1904.41, which contains information
collections that are subject to review by
OMB under the Paperwork Reduction
Act of 1995 (PRA), 44 U.S.C. 3501 et
seq., and OMB regulations at 5 CFR part
1320. The agency is not revising the
existing ICR, 1218–0176, but rather
requesting a new number for provisions
being added or modified. The PRA
defines ‘‘collection of information’’ to
mean ‘‘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). Under the PRA, a Federal
agency cannot conduct or sponsor a
21 The revenue numbers used to determine costto-revenue ratios were obtained from the 2017
Economic Census. This is the most current
information available from this source, which
OSHA considers to be the best available source of
revenue data for U.S. businesses. OSHA adjusted
these figures to 2019 dollars using the Bureau of
Economic Analysis’s GDP deflator, which is
OSHA’s standard source for inflation and deflation
analysis.
22 The profit screening test for feasibility (i.e., the
cost-to-profit ratio) was calculated as ETS costs
divided by profits. Profits were calculated as profit
rates multiplied by revenues. The before-tax profit
rates that OSHA used were estimated using
corporate balance sheet data from the 2013
Corporation Source Book (Internal Revenue Service,
2013). The IRS discontinued the publication of
these data after 2013, and therefore the most current
years available are 2000–2013. The most recent
version of the Source Book represents the best
available evidence for these data on profit rates.
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18553
collection of information unless OMB
approves it and the agency displays a
currently valid OMB control number. 44
U.S.C. 3507. Also, notwithstanding any
other provision of law, no employer
shall be subject to penalty for failing to
comply with a collection of information
if the collection of information does not
display a currently valid OMB control
number. 44 U.S.C. 3512.
B. Solicitation of Comments
OSHA prepared and submitted an ICR
to OMB proposing to revise certain
information collection requirements
currently contained in the paperwork
package in accordance with 44 U.S.C.
3507(d). The agency solicits comments
on the revision to the information
collection requirements and the
reduction in estimated burden hours
associated with these requirements,
including comments on the following
items:
• Whether the collection of
information are necessary for the proper
performance of the agency’s functions,
including whether the information is
useful;
• The accuracy of OSHA’s estimate of
the burden (time and cost) of the
collection of information, including the
validity of the methodology and
assumptions used;
• The quality, utility, and clarity of
the information collected; and
• Ways to minimize the compliance
burden on employers, for example, by
using automated or other technological
techniques for collecting and
transmitting information.
C. Proposed Information Collection
Requirements
As required by 5 CFR 1320.5(a)(1)(iv)
and 1320.8(d)(2), the following
paragraphs provide information about
this ICR.
1. Title: Improve Tracking Workplace
Injury and Illness.
2. Description of the ICR: This
proposed rule would revise the
currently approved Recordkeeping and
Reporting Occupational Injuries and
Illnesses Information Collection and
change the existing information
collection requirements currently
approved by OMB.
3. Brief Summary of the Information
Collection Requirements. Under
‘‘Information Requirements on
Recordkeeping and Reporting
Occupational Injuries and Illnesses,’’
OMB Control Number 1218–0176,
OSHA currently has OMB approval to
conduct an information collection that
requires employers to maintain
information on work-related fatalities,
injuries, and illnesses, and to report this
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information to OSHA. The proposed
rule would make three changes to
§ 1904.41.
First, OSHA will no longer require
electronic submission of Form 300A
information from establishments with
250 or more employees in industries
that are routinely required to keep part
1904 injury and illness records but are
not in appendix A.
Second, OSHA will newly require all
establishments that have 100 or more
employees and are in certain designated
industries to electronically submit
information from the OSHA Form 300
and 301 to OSHA or OSHA’s designee.
This is in addition to the current
requirement for these establishments to
electronically submit information from
the OSHA Form 300A. Each
establishment subject to this provision
will require time to familiarize
themselves with the reporting website.
Third, OSHA will require
establishments that are required to
electronically report information from
their injury and illness records to OSHA
under part 1904, to include their
company name as part of the
submission. No additional paperwork
burden is associated with the provision.
In addition, Docket exhibit OSHA–
2021–006–0004 shows an example of an
expanded interface to collect casespecific data. Screen shots of this
interface can also be viewed on OSHA’s
website at https://www.osha.gov/
recordkeeping/proposed_data_
form.html. OSHA invites public
comment on these user interfaces,
including suggestions on any interface
features that would minimize the
burden of reporting the required data.
4. OMB Control Number: 1218–
0NEW.
5. Affected Public: Business or other
for-profit.
6. Number of Respondents: 48,919.
7. Frequency of Responses: Annually.
8. Number of Responses: 429,876.
9. Average Time per Response: Time
per response varies.
10. Estimated total burden hours:
71,646.
11. Estimated costs (capital-operation
and maintenance): $0.
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D. Submitting Comments
Members of the public may comment
on the paperwork requirements in this
proposed regulation by sending their
comments to the Office of Information
and Regulatory Affairs, Attn: OMB Desk
Officer for the Department of Labor,
OSHA Regulation Identifier Number
(RIN) (1218–AD40), by email: OIRA_
submission@omb.eop.gov. Please limit
the comments to only the proposed
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changed provisions of the recordkeeping
rule (i.e., proposed § 1904.41).
OSHA encourages commenters also to
submit their comments on these
paperwork requirements to the
rulemaking docket (OSHA–2021–0006),
along with their comments on other
parts of the proposed regulation. For
instructions on submitting these
comments to the docket, see the sections
of this Federal Register document titled
DATES and ADDRESSES. Comments
submitted in response to this document
are public records; therefore, OSHA
cautions commenters about submitting
personal information, such as Social
Security numbers and dates of birth.
E. Docket and Inquiries
To access the docket to read or
download comments and other
materials related to this paperwork
determination, including the complete
Information Collection Request (ICR),
use the procedures described under the
section of this document titled
ADDRESSES. You may obtain an
electronic copy of the complete ICR by
going to the website at https://
www.reginfo.gov/public/do/PRAMain,
then select ‘‘Department of Labor’’
under ‘‘Currently Under Review’’, then
click on ‘‘submit’’. This will show all of
the Department’s ICRs currently under
review, including the ICRs submitted for
proposed rulemakings. To make
inquiries, or to request other
information, contact Ms. Seleda
Perryman, Directorate of Standards and
Guidance, Occupational Safety and
Health Administration, U.S. Department
of Labor; telephone (202) 693–4131;
email perryman.seleda.m@dol.gov.
VI. Unfunded Mandates
For purposes of the Unfunded
Mandates Reform Act of 1995 (2 U.S.C.
1501 et seq.), as well as Executive Order
13132 (64 FR 43255 (Aug. 4, 1999)), this
proposed 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.
VII. Federalism
OSHA reviewed this proposed rule in
accordance with Executive Order 13132
(64 FR 43255 (Aug. 4, 1999)), regarding
federalism. Because this rulemaking
involves a ‘‘regulation’’ issued under
sections 8 and 24 of the OSH Act (29
U.S.C. 657, 673), and not an
‘‘occupational safety and health
standard’’ issued under section 6 of the
OSH Act (29 U.S.C. 655), the rule will
not preempt state law (see 29 U.S.C.
667(a)). The effect of the proposed rule
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on states is discussed in section VIII.
State Plans.
VIII. State Plans
For the purposes of section 18 of the
OSH Act (29 U.S.C. 667) and the
requirements of 29 CFR 1904.37,
1902.3(j), 1902.7, and 1956.10(i), within
6 months after publication of the final
OSHA rule, State Plans must
promulgate occupational injury and
illness recording and reporting
requirements that are substantially
identical to those in 29 CFR part 1904
‘‘Recording and Reporting Occupational
Injuries and Illnesses.’’ State Plans must
have the same requirements as Federal
OSHA for determining which injuries
and illnesses are recordable and how
they are recorded (29 CFR
1904.37(b)(1)). All other part 1904
injury and illness recording and
reporting requirements (for example,
industry exemptions, reporting of
fatalities and hospitalizations, record
retention, or employee involvement)
that are promulgated by State Plans may
be more stringent than, or supplemental
to, the Federal requirements, but,
because of the unique nature of the
national recordkeeping program, states
must consult with OSHA and obtain
approval of such additional or more
stringent reporting and recording
requirements to ensure that they will
not interfere with uniform reporting
objectives (29 CFR 1904.37(b)(2)).
There are 28 State Plans. 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, Maine, New
Jersey, New York, and the Virgin Islands
have OSHA-approved State Plans that
apply to state and local government
employees only.
IX. Consultation and Coordination With
Indian Tribal Governments
OSHA reviewed this proposed rule in
accordance with Executive Order 13175
(65 FR 67249) and determined that it
would not have ‘‘tribal implications’’ as
defined in that order. The proposed rule
would 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.
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X. Public Participation
PART 1904—[AMENDED]
Because this rulemaking involves a
regulation rather than a standard, it is
governed by the notice and comment
requirements in the Administrative
Procedure Act (APA) (5 U.S.C. 553)
rather than section 6 of the OSH Act (29
U.S.C. 655) and 29 CFR part 1911 (both
of which only apply to ‘‘promulgating,
modifying or revoking occupational
safety or health standards’’ (29 CFR
1911.1)). Therefore, the OSH Act
requirement to hold an informal public
hearing (29 U.S.C. 655(b)(3)) on a
proposed rule, when requested, does not
apply to this rulemaking.
Section 553(b)(1) of the APA requires
the agency to issue a ‘‘statement of the
time, place, and nature of public
rulemaking proceedings’’ (5 U.S.C.
553(b)(1)). The APA does not specify a
minimum period for submitting
comments.
OSHA invites comment on all aspects
of the proposed rule. OSHA specifically
encourages comment on the questions
raised in the issues and questions
subsection. Interested persons must
submit comments by May 31, 2022. The
agency will carefully review and
evaluate all comments, information, and
data, as well as all other information in
the rulemaking record, to determine
how to proceed. When submitting
comments, persons must follow the
procedures specified above in the
sections titled DATES and ADDRESSES.
Subpart E—Reporting Fatality, Injury
and Illness Information to the
Government
Authority and Signature
This document was prepared under
the direction of Douglas L. Parker,
Assistant Secretary of Labor for
Occupational Safety and Health, U.S.
Department of Labor, 200 Constitution
Avenue NW, Washington, DC 20210. It
is issued under sections 8 and 24 of the
Occupational Safety and Health Act (29
U.S.C. 657, 673), section 553 of the
Administrative Procedure Act (5 U.S.C.
553), and Secretary of Labor’s Order No.
08–2020 (85 FR 58393, Sept. 18, 2020).
List of Subjects in 29 CFR Part 1904
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Health statistics, Occupational safety
and health, Reporting and
recordkeeping requirements.
Signed at Washington, DC, on March 23,
2022.
Douglas L. Parker,
Assistant Secretary of Labor for Occupational
Safety and Health.
Amendments to Standards
For the reasons stated in the
preamble, OSHA proposes to amend
part 1904 of chapter XVII of title 29 as
follows:
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17:59 Mar 29, 2022
Jkt 256001
1. Revise the authority citation for part
1904, subpart E, to read as follows:
■
Authority: 29 U.S.C. 657, 673, 5 U.S.C.
553, and Secretary of Labor’s Order No. 08–
2020 (85 FR 58393, Sept. 18, 2020) or 1–2012
(77 FR 3912, Jan. 25, 2012), as applicable.
2. Amend § 1904.41 as follows:
a. Revise paragraphs (a)(1) and (2) and
(b)(1);
■ b. Add paragraphs (b)(9) and (10); and
■ c. Revise paragraph (c).
The revisions and additions read as
follows:
■
■
§ 1904.41 Electronic submission of
Employer Identification Number (EIN) and
injury and illness records to OSHA.
*
*
*
*
*
(a) * * *
(1) Annual electronic submission of
information from OSHA Form 300A
Summary of Work-Related Injuries and
Illnesses by establishments with 20 or
more employees in designated
industries. If your establishment had 20
or more 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 WorkRelated Injuries and Illnesses to OSHA
or OSHA’s designee. You must submit
the information once a year, no later
than the date listed in paragraph (c) of
this section of the year after the calendar
year covered by the form.
(2) Annual electronic submission of
information from OSHA Form 300 Log
of Work-Related Injuries and Illnesses,
OSHA Form 301 Injury and Illness
Incident Report, and OSHA Form 300A
Summary of Work-Related Injuries and
Illnesses by establishments with 100 or
more employees in designated
industries. If your establishment had
100 or more employees at any time
during the previous calendar year, and
your establishment is classified in an
industry listed in appendix B to subpart
E of this part, then you must
electronically submit information from
OSHA Forms 300, 301, and 300A to
OSHA or OSHA’s designee. You must
submit the information once a year, no
later than the date listed in paragraph
(c) of this section of the year after the
calendar year covered by the forms.
*
*
*
*
*
(b) * * *
(1) Annual electronic submission of
information from part 1904 injury and
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18555
illness recordkeeping forms to OSHA—
(i) Does every employer have to
routinely make an annual electronic
submission of information from part
1904 injury and illness recordkeeping
forms to OSHA? No, only two categories
of employers must routinely submit this
information. The first category is
establishments that had 20 or more
employees at any time during the
previous calendar year, and are
classified in an industry listed in
appendix A to this subpart;
establishments in this category must
submit the required information from
Form 300A to OSHA once a year. The
second category is establishments that
had 100 or more employees at any time
during the previous calendar year, and
are classified in an industry listed in
appendix B to this subpart;
establishments in this category must
submit the required information from
Forms 300, 301, and 300A 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 (for example, 2022 for the 2021
form(s)). If your establishment is not in
either of these two categories, then you
must submit the information to OSHA
only if OSHA notifies you to do so for
an individual data collection.
(ii) My establishment had 100 or more
employees last year and is in an
industry that is listed in both appendix
A and appendix B. Do I have to submit
the information from the Form 300A
twice? No, you only have to submit the
information from the Form 300A once.
*
*
*
*
*
(9) If I have to submit information
under paragraph (a)(2) of this section,
do I have to submit all of the
information from the recordkeeping
forms? No, you are required to submit
all of the information from the forms
except the following:
(i) Log of Work-Related Injuries and
Illnesses (OSHA Form 300): Employee
name (column B).
(ii) Injury and Illness Incident Report
(OSHA Form 301): Employee name
(field 1), employee address (field 2),
name of physician or other health care
professional (field 6), facility name and
address if treatment was given away
from the worksite (field 7).
(10) My company uses numbers or
codes to identify our establishments.
May I use numbers or codes as the
establishment name in my submission?
Yes, you may use numbers or codes as
the establishment name. However, the
submission must include the company
name, either as part of the establishment
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name or separately as the company
name.
(c) Reporting dates. Establishments
that are required to submit under
paragraph (a)(1) or (2) of this section
must submit all of the required
information by March 2 of the year after
the calendar year covered by the form(s)
(for example, by March 2, 2022, for the
forms covering 2021).
■ 3. Revise appendix A to subpart E to
read as follows:
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NAICS
11 .................
22 .................
23 .................
31–33 ...........
42 .................
4413 .............
4421 .............
4422 .............
4441 .............
4442 .............
4451 .............
4452 .............
4522 .............
4523 .............
4533 .............
4542 .............
4543 .............
4811 .............
4841 .............
4842 .............
4851 .............
4852 .............
4853 .............
4854 .............
4855 .............
4859 .............
4871 .............
4881 .............
4882 .............
4883 .............
4884 .............
4889 .............
4911 .............
4921 .............
4922 .............
4931 .............
5152 .............
5311 .............
5321 .............
5322 .............
5323 .............
5617 .............
5621 .............
5622 .............
5629 .............
6219 .............
6221 .............
6222 .............
6223 .............
6231 .............
6232 .............
6233 .............
6239 .............
6242 .............
6243 .............
7111 .............
7112 .............
7121 .............
7131 .............
7132 .............
7211 .............
7212 .............
7223 .............
8113 .............
VerDate Sep<11>2014
Appendix A to Subpart E of Part 1904—
Designated Industries for
§ 1904.41(a)(1) Annual Electronic
Submission of Information From OSHA
Form 300A Summary of Work-Related
Injuries and Illnesses by Establishments
With 20 or More Employees in
Designated Industries
Industry
Agriculture, forestry, fishing and hunting.
Utilities.
Construction.
Manufacturing.
Wholesale trade.
Automotive Parts, Accessories, and Tire Stores.
Furniture Stores.
Home Furnishings Stores.
Building Material and Supplies Dealers.
Lawn and Garden Equipment and Supplies Stores.
Grocery Stores.
Specialty Food Stores.
Department Stores.
General Merchandise Stores, including Warehouse Clubs and Supercenters.
Used Merchandise Stores.
Vending Machine Operators.
Direct Selling Establishments.
Scheduled Air Transportation.
General Freight Trucking.
Specialized Freight Trucking.
Urban Transit Systems.
Interurban and Rural Bus Transportation.
Taxi and Limousine Service.
School and Employee Bus Transportation.
Charter Bus Industry.
Other Transit and Ground Passenger Transportation.
Scenic and Sightseeing Transportation, Land.
Support Activities for Air Transportation.
Support Activities for Rail Transportation.
Support Activities for Water Transportation.
Support Activities for Road Transportation.
Other Support Activities for Transportation.
Postal Service.
Couriers and Express Delivery Services.
Local Messengers and Local Delivery.
Warehousing and Storage.
Cable and Other Subscription Programming.
Lessors of Real Estate.
Automotive Equipment Rental and Leasing.
Consumer Goods Rental.
General Rental Centers.
Services to Buildings and Dwellings.
Waste Collection.
Waste Treatment and Disposal.
Remediation and Other Waste Management Services.
Other Ambulatory Health Care Services.
General Medical and Surgical Hospitals.
Psychiatric and Substance Abuse Hospitals.
Specialty (except Psychiatric and Substance Abuse) Hospitals.
Nursing Care Facilities (Skilled Nursing Facilities).
Residential Intellectual and Developmental Disability, Mental Health, and Substance Abuse Facilities.
Continuing Care Retirement Communities and Assisted Living Facilities for the Elderly.
Other Residential Care Facilities.
Community Food and Housing, and Emergency and Other Relief Services.
Vocational Rehabilitation Services.
Performing Arts Companies.
Spectator Sports.
Museums, Historical Sites, and Similar Institutions.
Amusement Parks and Arcades.
Gambling Industries.
Traveler Accommodation.
RV (Recreational Vehicle) Parks and Recreational Camps.
Special Food Services.
Commercial and Industrial Machinery and Equipment (except Automotive and Electronic) Repair and Maintenance.
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NAICS
8123 .............
Industry
Drycleaning and Laundry Services.
4. Add appendix B to subpart E to
read as follows:
■
Appendix B to Subpart E of Part 1904—
Designated Industries for
§ 1904.41(a)(2) Annual Electronic
Submission of Information From OSHA
Form 300 Log of Work-Related Injuries
and Illnesses, OSHA Form 301 Injury
and Illness Incident Report, and OSHA
Form 300A Summary of Work-Related
Injuries and Illnesses by Establishments
With 100 or More Employees in
Designated Industries
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NAICS
1111
1112
1113
1114
1119
1121
1122
1123
1129
1141
1151
1152
1153
2213
2381
3111
3113
3114
3115
3116
3117
3118
3119
3121
3161
3162
3211
3212
3219
3261
3262
3271
3272
3273
3279
3312
3314
3315
3321
3323
3324
3325
3326
3327
3328
3331
3335
3361
3362
3363
3366
3371
3372
4231
4233
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
.............
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.............
.............
VerDate Sep<11>2014
Industry
Oilseed and grain farming.
Vegetable and melon farming.
Fruit and tree nut farming.
Greenhouse, nursery, and floriculture production.
Other crop farming.
Cattle ranching and farming.
Hog and pig farming.
Poultry and egg production.
Other animal production.
Fishing.
Support activities for crop production.
Support activities for animal production.
Support activities for forestry.
Water, sewage and other systems.
Foundation, structure, and building exterior contractors.
Animal food manufacturing.
Sugar and confectionery product manufacturing.
Fruit and vegetable preserving and specialty food manufacturing.
Dairy product manufacturing.
Animal slaughtering and processing.
Seafood product preparation and packaging.
Bakeries and tortilla manufacturing.
Other food manufacturing.
Beverage manufacturing.
Leather and hide tanning and finishing.
Footwear manufacturing.
Sawmills and wood preservation.
Veneer, plywood, and engineered wood product manufacturing.
Other wood product manufacturing.
Plastics product manufacturing.
Rubber product manufacturing.
Clay product and refractory manufacturing.
Glass and glass product manufacturing.
Cement and concrete product manufacturing.
Other nonmetallic mineral product manufacturing.
Steel product manufacturing from purchased steel.
Nonferrous metal production and processing.
Foundries.
Forging and stamping.
Architectural and structural metals manufacturing.
Boiler, tank, and shipping container manufacturing.
Hardware manufacturing.
Spring and wire product manufacturing.
Machine shops; turned product; and screw, nut, and bolt manufacturing.
Coating, engraving, heat treating, and allied activities.
Agriculture, construction, and mining machinery manufacturing.
Metalworking machinery manufacturing.
Motor vehicle manufacturing.
Motor vehicle body and trailer manufacturing.
Motor vehicle parts manufacturing.
Ship and boat building.
Household and institutional furniture and kitchen cabinet manufacturing.
Office furniture manufacturing.
Motor vehicle and motor vehicle parts and supplies merchant wholesalers.
Lumber and other construction materials merchant wholesalers.
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Industry
Metal and mineral merchant wholesalers.
Grocery and related product merchant wholesalers.
Beer, wine, and distilled alcoholic beverage merchant wholesalers.
Automotive parts, accessories, and tire stores.
Home furnishings stores.
Building material and supplies dealers.
Lawn and garden equipment and supplies stores.
Grocery stores.
Department stores.
General merchandise stores, including warehouse clubs and supercenters.
Used merchandise stores.
Direct selling establishments.
Scheduled air transportation.
General freight trucking.
Specialized freight trucking.
Urban transit systems.
Interurban and rural bus transportation.
School and employee bus transportation.
Other transit and ground passenger transportation.
Scenic and sightseeing transportation, land.
Support activities for air transportation.
Support activities for water transportation.
Postal Service.
Couriers and express delivery services.
Warehousing and storage.
Consumer goods rental.
Waste collection.
Waste treatment and disposal.
Other ambulatory health care services.
General medical and surgical hospitals.
Psychiatric and substance abuse hospitals.
Specialty hospitals.
Nursing care facilities.
Residential intellectual and developmental disability, mental health, and substance abuse facilities.
Continuing care retirement communities and assisted living facilities for the elderly.
Other residential care facilities.
Vocational rehabilitation services.
Performing arts companies.
Spectator sports.
Amusement parks and arcades.
Traveler accommodation.
RV parks and recreational camps.
Special food services.
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]]>Agencies
[Federal Register Volume 87, Number 61 (Wednesday, March 30, 2022)]
[Proposed Rules]
[Pages 18528-18558]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-06546]
[[Page 18527]]
Vol. 87
Wednesday,
No. 61
March 30, 2022
Part III
Department of Labor
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Occupational Safety and Health Administration
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29 CFR Part 1904
Improve Tracking of Workplace Injuries and Illnesses; Proposed Rule
Federal Register / Vol. 87 , No. 61 / Wednesday, March 30, 2022 /
Proposed Rules
[[Page 18528]]
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1904
[Docket No. OSHA-2021-0006]
RIN 1218-AD40
Improve Tracking of Workplace Injuries and Illnesses
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Proposed rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: OSHA is proposing to amend its occupational injury and illness
recordkeeping regulation to require certain employers to electronically
submit injury and illness information to OSHA that employers are
already required to keep under the recordkeeping regulation.
Specifically, OSHA proposes to amend its regulation to require
establishments with 100 or more employees in certain designated
industries to electronically submit information from their OSHA Forms
300, 301, and 300A to OSHA once a year. Establishments with 20 or more
employees in certain industries would continue to be required to
electronically submit information from their OSHA Form 300A annual
summary to OSHA once a year. OSHA also proposes to update the
classification system used to determine the list of industries covered
by the electronic submission requirement. In addition, the proposed
rule would remove the current requirement for establishments with 250
or more employees, not in a designated industry, to electronically
submit information from their Form 300A to OSHA on an annual basis.
OSHA intends to post the data from the proposed annual electronic
submission requirement on a public website after identifying and
removing information that reasonably identifies individuals directly,
such as individuals' names and contact information. Finally, OSHA is
proposing to require establishments to include their company name when
making electronic submissions to OSHA.
DATES: Comments must be submitted by May 31, 2022.
ADDRESSES:
Comments: Comments, along with any submissions and attachments,
should be submitted electronically at https://www.regulations.gov,
which is the Federal e-Rulemaking Portal. Follow the instructions
online for making electronic submissions. After accessing ``all
documents and comments'' in the docket (Docket No. OSHA-2021-0006),
check the ``proposed rule'' box in the column headed ``Document Type,''
find the document posted on the date of publication of this document,
and click the ``Comment Now'' link. When uploading multiple attachments
to www.regulations.gov, please number all of your attachments, because
www.regulations.gov will not automatically number the attachments. This
will be very useful in identifying all attachments in the preamble. For
example, Attachment 1_title of your document, Attachment 2_title of
your document, Attachment 3_title of your document. For assistance
with commenting and uploading documents, please see the Frequently
Asked Questions on regulations.gov.
Instructions: All submissions must include the agency's name and
the docket number for this rulemaking (Docket No. OSHA-2021-0006). All
comments, including any personal information you provide, are placed in
the public docket without change and may be made available online at
https://www.regulations.gov. Therefore, OSHA cautions commenters about
submitting information they do not want made available to the public,
or submitting materials that contain personal information (either about
themselves or others), such as Social Security numbers and birthdates.
Docket: To read or download comments and other materials submitted
in the docket, go to Docket No. OSHA-2021-0006 at https://www.regulations.gov. All comments and submissions are listed in the
https://www.regulations.gov index; however, some information (e.g.,
copyrighted material) is not publicly available to read or download
through that website. All comments and submissions, including
copyrighted material, are available for inspection through the OSHA
Docket Office.\1\ Contact the OSHA Docket Office at (202) 693-2350,
(TTY (877) 889-5627) for information about materials not available
through the website, and for assistance in using the internet to locate
docket submissions.
---------------------------------------------------------------------------
\1\ Documents submitted to the docket by OSHA or stakeholders
are assigned document identification numbers (Document ID) for easy
identification and retrieval. The full Document ID is the docket
number plus a unique four-digit code. OSHA is identifying supporting
information in this document by author name, publication year, and
the last four digits of the Document ID.
---------------------------------------------------------------------------
Electronic copies of this Federal Register document are available
at https://www.regulations.gov. This document, as well as news releases
and other relevant information, is available at OSHA's website at
https://www.osha.gov.
FOR FURTHER INFORMATION CONTACT:
For press inquiries: Contact Frank Meilinger, Director, Office of
Communications, Occupational Safety and Health Administration, U.S.
Department of Labor; telephone (202) 693-1999; email:
[email protected].
For general information and technical inquiries: Contact Lee Anne
Jillings, Director, Directorate of Technical Support and Emergency
Management, U.S. Department of Labor; telephone (202) 693-2300; email:
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. Introduction
B. Regulatory History
C. Litigation Resulting From Previous Rulemakings
D. Injury and Illness Data Collection
E. Publication of Electronic Data
F. Differences Between the BLS SOII and Proposed OSHA Data
Collections
G. Benefits of Establishment-Specific, Case-Specific Data
Collection and Publication
II. Legal Authority
III. Summary and Explanation of the Proposed Rule
A. Description of Proposed Revisions
1. Section 1904.41(a)(1) Annual Electronic Submission of
Information From OSHA Form 300A Summary of Work-Related Injuries and
Illnesses by Establishments With 20 or More Employees in Designated
Industries
2. Section 1904.41(a)(2) Annual Electronic Submission of 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 by Establishments With 100 or
More Employees in Designated Industries
3. Section 1904.41(b)(1)(i) and (ii)
4. Section 1904.41(b)(9)
5. Section 1904.41(b)(10)
6. Section 1904.41(c) Reporting Dates
B. Questions
IV. Preliminary Economic Analysis and Regulatory Flexibility
Certification
A. Introduction
B. Costs
1. Section 1904.41(a)(1) Annual Electronic Submission of
Information From OSHA Form 300A Summary of Work-Related Injuries and
Illnesses by Establishments With 20 or more Employees in Designated
Industries
2. Section 1904.41(a)(2) Annual Electronic Submission of 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 by Establishments With 100 or
[[Page 18529]]
More Employees in Designated Industries
3. Section 1904.41(b)(10)
4. Budget Costs to the Government for the Creation of the
Reporting System, Helpdesk Assistance, and Administration of the
Electronic Submission Program
5. Total Costs of the Rule
C. Benefits
D. Economic Feasibility
E. Alternatives
F. Regulatory Flexibility Certification
V. OMB Review Under the Paperwork Reduction Act of 1995
VI. Unfunded Mandates
VII. Federalism
VIII. State Plans
IX. Consultation and Coordination With Indian Tribal Governments
X. Public Participation
Authority and Signature
I. Background
A. Introduction
OSHA's regulation at 29 CFR part 1904 requires employers with more
than 10 employees in most industries to keep records of occupational
injuries and illnesses at their establishments. Employers covered by
the regulation must record each recordable employee injury and illness
on an OSHA Form 300, which is the ``Log of Work-Related Injuries and
Illnesses,'' or equivalent. The OSHA Form 300 includes information
about the employee's name, job title, date of the injury or illness,
where the injury or illness occurred, description of the injury or
illness (e.g., body part affected), and the outcome of the injury or
illness (e.g., death, days away from work, restricted work activity).
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. The OSHA Form
301 includes information about the employee's name and address, date of
birth, date hired, gender, the name and address of the health care
professional that treated the employee, as well as more detailed
information about where and how the injury or illness occurred. 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. The OSHA Form 300A does not
contain information about individual employees, but does include
general information about an employer's workplace, such as the average
number of employees and total number of hours worked by all employees
during the calendar year.
Section 1904.41 of the current recordkeeping regulation also
requires certain employers to electronically submit injury and illness
data to OSHA. Section 1904.41(a)(1) requires establishments with 250 or
more employees in industries that are required to routinely keep OSHA
injury and illness records to electronically submit information from
the Form 300A summary to OSHA once a year. Section 1904.41(a)(2)
requires establishments with 20-249 employees in certain designated
industries to electronically submit information from their Form 300A
summary to OSHA once a year. Also, Sec. 1904.41(a)(3) provides that,
upon notification, employers must electronically submit requested
information from their part 1904 records to OSHA. Lastly, Sec.
1904.41(a)(4) requires each establishment that must electronically
submit injury and illness information to OSHA to also provide their
Employer Identification Number (EIN) in their submittal.
Under this proposed rule, establishments with 20 or more employees
in certain designated industries (listed in appendix A to subpart E)
would continue to electronically submit information from their Form
300A annual summary to OSHA once a year. However, the proposed rule
would eliminate the requirement for all establishments with 250 or more
employees in industries that are required to routinely keep OSHA injury
and illness records to electronically submit information from the Form
300A to OSHA. Instead, establishments with 100 or more employees in
certain designated industries (listed in appendix B to subpart E) would
be required to electronically submit information from their OSHA Forms
300, 301, and 300A to OSHA once a year. OSHA also proposes to update
the industry classification system used for the proposed list of
designated industries in appendix A and B to subpart E. In addition,
OSHA is proposing to require establishments to include their company
name when making electronic submissions to OSHA.
The proposed requirement for establishments with 20 or more
employees in certain designated industries to electronically submit
information from their Form 300A to OSHA once a year is essentially the
same as the current regulation. For establishments with 100 or more
employees in certain designated industries, the proposed requirement to
electronically submit information from their Forms 300 and 301 to OSHA
on an annual basis represents a change from the current regulation. The
proposed requirement would provide systematic access for OSHA to the
establishment-specific, case-specific injury and illness information
that these establishments are already required to collect.
Additionally, OSHA intends to post the collected establishment-
specific, case-specific injury and illness information online. As
discussed in more detail below, the agency will seek to minimize the
possibility that worker information, such as name and contact
information, will be released, through multiple efforts, including
limiting the worker information collected, designing the collection
system to provide extra protections for some of the information that
employers would be required to submit under the proposal, withholding
certain fields from public disclosure, and using automated software to
identify and remove information that reasonably identifies individuals
directly. OSHA does not intend to include information that reasonably
identifies individuals directly, such as employee name, contact
information, and name of physician or health care professional, in the
published information. The expanded public access to establishment-
specific, case-specific injury and illness data would allow employers,
employees, potential employees, employee representatives, customers,
potential customers, researchers, and the general public to make
informed decisions about the workplace safety and health at a given
establishment, and this accessibility will ultimately result in the
reduction of occupational injuries and illnesses.
OSHA estimates that this proposed rule would have economic costs of
$4.3 million per year, including $3.9 million per year to the private
sector, with costs of $81 per year for affected establishments with 100
or more employees in designated industries. The agency believes that
the annual benefits, while unquantified, would significantly exceed the
annual costs.
OSHA seeks comment on this proposal.
B. 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)). These regulations require the recording of work-
related injuries and illnesses that involve death, loss of
consciousness, days away from work, restricted work or transfer to
another job, medical treatment beyond first aid, or diagnosis of a
significant injury or illness by a physician or other licensed
[[Page 18530]]
health care professional (29 CFR 1904.7).
On July 29, 1977, OSHA amended these regulations to partially
exempt businesses having ten or fewer employees during the previous
calendar year from the requirement to record occupational injuries and
illnesses (42 FR 38568). Then, on December 28, 1982, OSHA amended the
regulations again to partially exempt establishments in certain lower-
hazard industries from the requirement to record occupational injuries
and illnesses (47 FR 57699).\2\ OSHA also amended the recordkeeping
regulations in 1994 (Reporting of Fatality or Multiple Hospitalization
Incidents, 59 FR 15594) and 1997 (Reporting Occupational Injury and
Illness Data to OSHA, 62 FR 6434). Under the version of Sec. 1904.41
added by the 1997 final rule, OSHA began requiring certain employers to
submit their 300A data to OSHA annually through the OSHA Data
Initiative (ODI). Through the ODI, OSHA collected data on injuries and
acute illnesses attributable to work-related activities in the private
sector from approximately 80,000 establishments in selected high-hazard
industries. The agency used these data to calculate establishment-
specific injury and illness rates, and, in combination with other data
sources, to target enforcement and compliance assistance activities.
---------------------------------------------------------------------------
\2\ All employers covered by the Occupational Safety and Health
Act (the ``OSH Act'' or ``Act'') are covered by OSHA's recordkeeping
regulation. However, most employers do not have to keep OSHA injury
and illness records unless OSHA or the Bureau of Labor Statistics
(BLS) informs them in writing that they must keep records. For
example, employers with ten or fewer employees, as well as
businesses with establishments in certain industries, are partially
exempt from keeping OSHA injury and illness records. In addition,
all employers covered by the OSH Act, including those that are
partially exempt from keeping injury and illness records, are still
required to report work-related fatalities, in-patient
hospitalizations, amputations, and losses of an eye to OSHA within
specified timeframes under 29 CFR 1904.39.
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On January 19, 2001, OSHA issued a final rule amending its
requirements for the recording and reporting of occupational injuries
and illnesses (29 CFR parts 1904 and 1952), along with the forms
employers use to record those injuries and illnesses (66 FR 5916). The
final rule also updated the list of industries that are partially
exempt from recording occupational injuries and illnesses.
On September 18, 2014, OSHA again amended the regulations to
require employers to report work-related fatalities and severe
injuries--in-patient hospitalizations, amputations, and losses of an
eye--to OSHA and to allow electronic reporting of these events (79 FR
56130). The final rule also revised the list of industries that are
partially exempt from recording occupational injuries and illnesses.
On May 12, 2016, OSHA amended the regulations on recording and
reporting occupational injuries and illnesses to require employers, on
an annual basis, to submit electronically to OSHA injury and illness
information that employers are already required to keep under part 1904
(81 FR 29624). Under the 2016 revisions, establishments with 250 or
more employees that are routinely required to keep records were
required to electronically submit information from their OSHA Forms
300, 300A, and 301 to OSHA or OSHA's designee once a year, and
establishments with 20 to 249 employees in certain designated
industries were required to electronically submit information from
their OSHA annual summary (Form 300A) to OSHA or OSHA's designee once a
year. In addition, that final rule required employers, upon
notification, to electronically submit information from part 1904
recordkeeping forms to OSHA or OSHA's designee. These provisions became
effective on January 1, 2017, with an initial submission deadline of
July 1, 2017, for 2016 Form 300A data. That submission deadline was
subsequently extended to December 15, 2017 (82 FR 55761). The deadline
for electronic submission of information from OSHA Forms 300 and 301
was July 1, 2018. Because of a subsequent rulemaking, OSHA never
received the data submissions from Forms 300 and 301 that the 2016
final rule anticipated.
On January 25, 2019, OSHA issued a final rule that amended the
recordkeeping regulations to remove the requirement for establishments
with 250 or more employees that are routinely required to keep records
to electronically submit information from their OSHA Forms 300 and 301
to OSHA or OSHA's designee once a year. These establishments are
currently required to electronically submit only information from the
OSHA 300A annual summary. The final rule also added a requirement for
covered employers to submit their Employer Identification Number (EIN)
electronically along with their injury and illness data submission (83
FR 36494, 84 FR 380-406).
C. Litigation Resulting From Previous Rulemakings
Both the 2016 and 2019 OSHA final rules that addressed the
electronic submission of injury and illness data were challenged in
court. In Texo ABC/ABG et al. v. Acosta (N.D. Tex.), and NAHB et al. v.
Acosta (W.D. Okla.), industry groups challenged OSHA's 2016 final rule
that required establishments with 250 or more employees to
electronically submit data from their OSHA Forms 300 and 301 to OSHA
(as well as other requirements not relevant to this rulemaking). The
complaints alleged that the publication of establishment-specific
injury and illness data would lead to misuse of confidential and
proprietary information by the public and special interest groups. The
complaints also alleged that publication of the data exceeds OSHA's
authority under the Occupational Safety and Health Act (the ``OSH Act''
or ``Act'') and is unconstitutional under the First Amendment to the
U.S. Constitution. After OSHA published a notice of proposed rulemaking
on July 30, 2018 (83 FR 36494), proposing to rescind the 300 and 301
data submission requirement, the Texo case was administratively closed,
and the plaintiffs in the NAHB case dropped their claims relating to
the 300 and 301 data submission requirement after the 2019 final rule
was published (and moved forward with their other claims, which are
still pending in the Western District of Oklahoma).
In Public Citizen Health Research Group et al. v. Pizella (No.
1:19-cv-00166) and State of New Jersey et al. v. Pizella (No. 1:19-cv-
00621), a group of public health organizations and a group of states
filed separate lawsuits challenging OSHA's 2019 final rule rescinding
the requirement for certain employers to submit the data from OSHA
Forms 300 and 301 to OSHA electronically each year. The District Court
for the District of Columbia resolved the two cases in a consolidated
opinion and held that rescinding the provision was within the agency's
discretion. The court concluded the record supported OSHA's
determination that costly manual review of collected 300 and 301 data
would be needed to avoid a meaningful risk of exposing sensitive worker
information to public disclosure. The court also determined that OSHA
provided adequate notice of the estimated costs of manually reviewing
the data for sensitive information, and that the final rule was a
logical outgrowth of the rulemaking. Finally, the court upheld OSHA's
conclusion that the uncertain benefits of collecting the 300 and 301
data did not justify diverting OSHA's resources from other efforts, and
the court rejected the plaintiffs' assertion that OSHA's reasons for
the 2019 final rule were internally inconsistent.
Additionally, since 2020, the Department of Labor (DOL) has
received
[[Page 18531]]
several adverse decisions regarding the release of electronically
submitted 300A data under the Freedom of Information Act (FOIA). In
each of the cases, OSHA argued that electronically submitted 300A
injury and illness data was covered under the confidentiality exemption
in FOIA Exemption 4. Two courts, one in the U.S. District Court for the
Northern District of California and another in the U.S. District Court
for the District of Columbia, disagreed with OSHA's position. See,
Center for Investigative Reporting, et al., v. Department of Labor, No.
4:18-cv-02414-DMR, 2020 WL 2995209 (N.D. Cal. June 4, 2020); Public
Citizen Foundation v. United States Department of Labor, et al., No.
1:18-cv-00117 (D.D.C. June 23, 2020). In addition, on July 6, 2020, the
Department received an adverse ruling from a magistrate judge in the
Northern District of California in a FOIA case involving Amazon
fulfillment centers. In that case, plaintiffs sought the release of
individual 300A forms, which consisted of summaries of Amazon's work-
related injuries and illnesses and which were provided to OSHA
compliance officers during specific OSHA inspections of Amazon
fulfillment centers in Ohio and Illinois. See, Center for Investigative
Reporting, et al., v. Department of Labor, No. 3:19-cv-05603-SK, 2020
WL 3639646 (N.D. Cal. July 6, 2020).
In holding that FOIA Exemption 4 was inapplicable, the courts
rejected OSHA's position that electronically submitted 300A injury and
illness data is covered under the confidentiality exemption in FOIA
Exemption 4. The decisions noted that the 300A form is posted in the
workplace for three months and that there is no expectation that the
employer must keep these data confidential or private. As a result,
OSHA provided the requested 300A data to the plaintiffs, and initiated
a policy to post collected 300A data on its public website. The data
are available at https://www.osha.gov/Establishment-Specific-Injury-and-Illness-Data and include the submissions for calendar years 2016,
2017, 2018, 2019, and 2020.
D. Injury and Illness Data Collection
Currently, two U.S. Department of Labor data collections request
and compile information from the OSHA injury and illness records
certain employers are required to keep under 29 CFR part 1904: The
annual collection conducted by OSHA under 29 CFR 1904.41 (Electronic
Submission of Employer Identification Number (EIN) and Injury and
Illness Records), and the annual Survey of Occupational Injuries and
Illnesses (SOII) conducted by BLS under 29 CFR 1904.42. This proposed
rule would amend the current regulation at Sec. 1904.41. It would not
change the SOII or the authority for the SOII set forth in Sec.
1904.42.
The primary purpose of the SOII is to provide nationally-
representative annual estimates of 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. Title 44 U.S.C. 3572 prohibits BLS from
releasing establishment-specific and case-specific data to the general
public or to OSHA. OSHA only has access to the publicly-available
aggregate information from the injury and illness records collected
through the BLS SOII.
The BLS has modified their collection to allow respondents that
have already provided their Form 300A data to OSHA to provide their
OSHA identification number (OSHA ID) to import to BLS the data that
they have submitted to the OSHA ITA in that same year. Under this data-
sharing feature, if BLS can successfully match establishment
information with information reported to OSHA, data reported by the
respondent to the OSHA ITA are automatically imported into the BLS SOII
internet Data Collection Facility (IDCF). Imported data are taken from
the OSHA 300A annual summary. Additional information may need to be
entered manually to complete the SOII submission. In the 2021
collection for the BLS SOII, roughly 31,000 establishments had an
opportunity to use this data-sharing feature for their OSHA Form 300A
data, i.e., they were submitting to both the OSHA ITA and the BLS SOII.
Of these roughly 31,000 establishments, 9,479 establishments provided
their OSHA ID to the BLS SOII collection for BLS to try to match for
the data-sharing feature. Of these 9,479 establishments, 4,716
establishments that passed BLS's data quality checks had their OSHA-
submitted data automatically imported into the BLS SOII IDCF via the
data-sharing feature. The Department is continuing to evaluate
opportunities to further reduce duplicative reporting. To this end, BLS
will evaluate the feasibility of using this same model for the
additional information that would be required by this proposed rule.
Authority for the SOII comes from 29 CFR 1904.42, Requests from the
Bureau of Labor Statistics for data. Each year, BLS collects data from
Forms 300, 301, and 300A from a scientifically-selected probability
sample of about 230,000 establishments, covering nearly all private-
sector industries, as well as state and local government. Employers may
submit their data on paper forms or electronically. BLS releases the
aggregated data in November of the year following the data year (e.g.,
November 2020 for 2019 data).
As discussed above, the OSHA recordkeeping regulation has required
certain employers to submit injury and illness information to OSHA
since 1997. Currently, Sec. 1904.41, Electronic submission of Employer
Identification Number (EIN) and injury and illness records to OSHA,
requires two groups of establishments to annually submit information
from the OSHA Form 300A Annual Summary: Establishments with 20-249
employees in industries included in appendix A to subpart E of part
1904, and establishments with 250 or more employees in industries that
are routinely required to keep part 1904 injury and illness records.
For purposes of Sec. 1904.41, the number of employees at a given
establishment is based on the number of individuals employed at the
establishment at any time during the previous calendar year, including
full-time, part-time, seasonal, and temporary workers. In addition,
data submissions under Sec. 1904.41 are typically limited to
establishments in industries with high injury and illness rates. For
example, while current Sec. 1904.41(a)(1) covers establishments with
20-249 employees, only establishments in certain designated industries
are required to electronically submit information from their Form 300A
under this provision.
The primary purpose of the electronic submission requirements in
Sec. 1904.41 is to enable OSHA to focus its enforcement and compliance
assistance efforts on individual workplaces with ongoing serious safety
and health problems, as identified by the occupational injury and
illness rates at those workplaces. An establishment's submission of
information from its OSHA Form 300A Annual Summary provides summary
information about injuries and illnesses at that specific
establishment, but not about specific cases of injury or illness at
that establishment. In contrast, the OSHA Form 300 Log of Work-Related
Injuries and Illnesses and Form 301 Injury and Illness Incident Report
provide information about specific cases of injury or illness.
E. Publication of Electronic Data
OSHA intends to make much of 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.
[[Page 18532]]
OSHA will make the following data from the OSHA Form 300 and 301
available in a searchable online database:
Form 300 (the Log)--All collected data fields on the 300 Log will
generally be made available on OSHA's website. OSHA is proposing to
collect all of the fields except employee name (column B). OSHA
currently collects these data during inspections and maintains them as
part of the enforcement case file. However, the agency does not
currently conduct a systematic collection of the information on the 300
Log. OSHA generally releases copies of the 300 Logs maintained in
inspection files in response to FOIA requests after redacting employee
names (column B).
OSHA's regulations require employers to provide employees, former
employees, their representatives, and their authorized employee
representatives with access to the 300 Log (29 CFR 1904.32(b)(2)).
Specifically, when an employee, former employee, personal
representative, or authorized employee representative asks an employer
for copies of that employer's current or stored OSHA 300 Log(s) for an
establishment the employee or former employee has worked in, the
employer must give the requester a copy of the relevant OSHA 300 Log(s)
by the end of the next business day (29 CFR 1904.32(b)(2)(ii)). Once
the copy is accessed, OSHA's recordkeeping regulation does not place
any limitations on the use or release of the information by employees
and employee representatives. Moreover, as explained in OSHA's 2001
final rule amending its requirements for the recording and reporting of
occupational injuries and illnesses, while agency policy is that
employees and their representatives with access to records should treat
the information contained therein as confidential except as necessary
to further the purposes of the Act, the Secretary lacks statutory
authority to enforce such a policy against employees and
representatives (see 66 FR 6056-57 (citing e.g., 29 U.S.C. 658, 659)
(Act's enforcement mechanisms directed solely at employers)). In other
words, as OSHA explained in its 2016 recordkeeping final rule,
employees and their representatives can make the data they have
accessed public if they wish to do so (see 81 FR 29684). However, there
are some restrictions on what employers may do with these data. Under
Sec. 1904.29(b)(10), if employers choose to voluntarily disclose the
Forms to persons other than government representatives, employees,
former employees, or authorized representatives (as required by
Sec. Sec. 1904.35 and 1904.40), the employer must remove or hide the
employees' names and other personally identifying information, with
certain exceptions as spelled out in OSHA's regulations.
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. 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 is proposing
not to collect (and therefore could not 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). As above, under Sec. 1904.35(a)(3), employers must
provide access to injury and illness records for their employees and
employees' representatives, as described in Sec. 1904.35(b)(2). Also,
as above, the OSHA recordkeeping regulation does not place limitations
on the use or release of the information obtained by employees and
employee representatives.
F. Differences Between the BLS SOII and Proposed OSHA Data Collections
The BLS SOII is an establishment-based survey used to estimate
nationally-representative incidence rates and counts of workplace
injuries and illnesses. It also provides detailed case and demographic
data for cases that involve one or more days away from work (DAFW) and
for days of job transfer and restriction (DJTR).
SOII estimates the number and frequency (incidence rates) of
workplace injuries and illnesses based on recordkeeping logs kept by
employers during the year. These records reflect not only the year's
injury and illness experience, but also the employer's understanding of
which cases are work-related under recordkeeping rules promulgated by
OSHA. Although SOII uses OSHA's recordkeeping rules to facilitate
convenient collection of data, it is not administered by OSHA. In
addition, the scope of SOII encompasses industries not required by OSHA
to routinely keep injury and illness records (i.e., industries listed
in appendix A to subpart B of part 1904). Information collected through
the program is used for purely statistical purposes, cannot be viewed
by OSHA, and cannot be used for any regulatory purpose. Besides injury
and illness counts, survey respondents also are asked to provide
additional information for the subset of nonfatal cases that involved
at least 1 day away from work or job transfer or restriction. Employers
answer several questions about these cases, including the demographics
of the worker, the nature of the disabling condition, the event and
source producing that condition, and the part of body affected. A few
of the data elements are optional for employers, most notably race and
ethnicity; this resulted in 40 percent of the cases involving days away
from work for which race and ethnicity were not reported in the 2016
SOII.\3\
---------------------------------------------------------------------------
\3\ U.S. Bureau of Labor Statistics, Handbook of Methods, Survey
of Occupational Injuries and Illnesses, p. 12 (last modified date
October 30, 2020); https://www.bls.gov/opub/hom/soii/pdf/soii.pdf.
---------------------------------------------------------------------------
The presentation of SOII data is released in the fall and contains
two data components. One, sometimes referred to as the summary,
provides estimates of numbers and incidence rates of employer-reported
nonfatal injuries and illnesses at the industry level for all types of
cases. A second, sometimes referred to as the case and demographics
data, details case circumstances and worker characteristics for the
subset of the cases that involved days away from work.\4\ Prepared
tables containing the data can be found for industry data at https://www.bls.gov/iif/oshsum.htm and for case and demographics at https://www.bls.gov/iif/oshcdnew.htm. A schedule of releases from the Injuries,
Illnesses, and Fatalities program, which includes SOII, can be found at
https://www.bls.gov/iif/osh_nwrl.htm.
---------------------------------------------------------------------------
\4\ BLS started collecting nationally representative job
transfer and restriction cases in January 2022. BLS will begin
publishing biennial case and demographic estimates using these data
in November 2023. BLS will continue to publish summary industry
estimates annually.
---------------------------------------------------------------------------
In contrast, under the current data collection, OSHA annually
collects information from the OSHA Form 300A Annual Summary from two
groups of establishments:
1. Under Sec. 1904.41(a)(1), from establishments with 20 or more
[[Page 18533]]
employees in industries included in appendix A to subpart E of part
1904, and
2. under Sec. 1904.41(a)2), from establishments with 250 or more
employees in all industries that are routinely required to keep OSHA
injury and illness records.
OSHA publishes this information on its website at https://www.osha.gov/Establishment-Specific-Injury-and-Illness-Data. OSHA is
proposing to revise this data collection to include information from
the OSHA Form 300 Log and Form 301 Incident Report from establishments
with 100 or more employees in certain industries.
G. Benefits of Establishment-Specific, Case-Specific Data Collection
and Publication
As discussed in more detail below, the proposed rule would amend
Sec. 1904.41 to require establishments with 100 or more employees in
certain designated industries to electronically submit injury and
illness information from all three recordkeeping forms to OSHA once a
year (see proposed Sec. 1904.41(a)(2)). All of the establishments that
would be subject to this proposed section are already required to
annually submit information from their Form 300A, but these
establishments would be newly required to also annually submit certain
information from their Forms 300 and 301.
The proposed requirement for the electronic submission of
establishment-specific, case-specific information from the Forms 300
and 301, and the subsequent publication of certain establishment-
specific, case-specific data elements would have numerous benefits.
The main purpose of the proposed 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 proposed rule, employers, employees, employee representatives, the
government, and researchers would be better able to identify and
mitigate workplace hazards and thereby prevent worker injuries and
illnesses.
The proposed rule would 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 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. OSHA currently has limited
information about the injury/illness risks facing workers in specific
establishments, and the proposed rule would increase the agency's
ability to focus resources on those workplaces where workers are at
high 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. Public access to the collected establishment-
specific, case-specific information may 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.
A requirement for the electronic submission of establishment-
specific, case-specific recordkeeping data would help OSHA encourage
employers to prevent worker injuries and illnesses by greatly expanding
OSHA's access to the establishment-specific, case-specific information
employers are already required to record under part 1904. As described
in the previous section, OSHA currently does not have systematic access
to this information. OSHA has limited access to case-specific,
establishment-specific injury and illness information in a particular
year. Typically, OSHA only has access if the establishment was
inspected.
The proposed rule's provisions requiring regular electronic
submission of case-specific injury and illness data would allow OSHA to
obtain a much larger data set of establishment-specific, case-specific
information about injuries and illnesses in the workplace. This
information would help OSHA use its enforcement and compliance
assistance resources more effectively by enabling OSHA to identify the
workplaces where workers are at high risk.
For example, OSHA could send hazard-specific educational materials
to employers who report high rates of injuries or illnesses related to
those hazards. In addition, OSHA would 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 data
collection would also enable the agency to focus its Emphasis Program
inspections on establishments with specific hazards, such as trench and
excavation collapses (see CPL 02-00-161, October 1, 2018). OSHA would
be better able to refer employers who report certain types of injuries/
illnesses to OSHA's free on-site consultation program. OSHA would also
be able to add specific hazards or types of injury or illness to the
Site Specific Targeting (SST) program, which currently is based on
establishments' overall injury/illness rates.
The new collection would provide establishment-specific, case-
specific injury and illness data for analyses that are not currently
possible. For example, OSHA could analyze the data collected under this
system to assess changes in types and rates of particular injuries or
illnesses in a particular industry over time. It would also 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.
In addition, publication of establishment-specific, case-specific
injury and illness data would benefit the majority of employers who
want to prevent injuries and illnesses among their employees, through
several mechanisms. First, the information would enable interested
parties to gauge the full range of injury and illness case types at the
establishment. Second, employers could compare case-specific injury and
illness information at their establishments to those at comparable
establishments, and set workplace safety/health goals benchmarked to
the establishments they consider most comparable. Third, online
availability of case-specific, establishment-specific injury and
illness information would allow employees to compare their own
workplaces to the safest workplaces in their industries. In addition,
if employees were able to preferentially choose employment at the
safest
[[Page 18534]]
workplaces in their industries, then employers might take steps to
improve workplace safety and health (preventing injuries and illnesses
from occurring) in order to attract and retain employees.
Fourth, access to these data could 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 in-demand employees. Using data newly accessible under
this proposed rule, potential employees could examine the case-specific
information at establishments where they are interested in working, to
help them make a more informed decision about a future place of
employment. This could also encourage employers with more hazardous
workplaces in a given industry to make improvements in workplace safety
and health, 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.
Disclosure of and access to case-specific 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. Using data
collected under the proposed 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. Case-specific data
made available under this proposed rule could also allow researchers to
identify patterns of injuries or illnesses that are masked by the
aggregated, establishment-level data currently available.
The availability of establishment-specific injury and illness data
would 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 case-specific injury and
illness data from similar establishments could facilitate
identification of newly-emerging hazards. Public health surveillance
programs must currently 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 the case-
specific data 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 case-specific injury
and illness information could support the development of innovative
ideas for improving workplace safety and health, and would allow
everyone with a stake in workplace safety and health to participate in
improving occupational safety and health.
Furthermore, because the case-specific data would be publicly
available, industries, trade associations, unions, and other groups
representing employers and workers would 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 would
enable researchers to conduct rigorous studies that would 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 would be possible to examine the impact of a range of management
practices on specific injury and illness types, and in turn the impact
of those injury and illness types on the financial status of employers.
And finally, public access to these data would also enable software
developers to develop tools that facilitate use of these data by
employers, workers, researchers, consumers and others.
II. Legal Authority
OSHA is issuing this proposed rule pursuant to authority expressly
granted by several provisions of the OSH Act that address the recording
and reporting of occupational injuries and illnesses. Section 2(b)(12)
of the OSH Act states that one of the purposes of the OSH Act is to
``assure so far as possible . . . safe and healthful working conditions
. . . by providing for appropriate reporting procedures . . . which
will help achieve the 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 [of Labor] or the
Secretary of Health and Human Services, such records regarding his
activities relating to this Act as the Secretary . . . may prescribe by
regulation as necessary or appropriate for the enforcement of this Act
or for developing information regarding the causes and prevention of
occupational accidents and illnesses'' (29 U.S.C. 657(c)(1)). Section
8(c)(2) directs the Secretary to prescribe regulations ``requiring
employers to maintain accurate records of, and to make periodic reports
on, work-related deaths, injuries and illnesses other than minor
injuries requiring only first aid treatment and which do not involve
medical treatment, loss of consciousness, restriction of work or
motion, or transfer to another job'' (29 U.S.C. 657(c)(2)).
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
broadly empowers the Secretary ``to prescribe such rules and
regulations as he may deem necessary to carry out his responsibilities
under th[e] Act.'' 29 U.S.C. 657(g)(2).
Section 24 of the OSH Act (29 U.S.C. 673) contains a similar grant
of authority. This section requires the Secretary to ``develop and
maintain an effective program of collection, compilation, and analysis
of occupational safety and health statistics'' and ``compile accurate
statistics on work injuries and illnesses which shall include all
disabling, serious, or significant injuries and illnesses . . .'' (29
U.S.C. 673(a)). Section 24 also requires employers to ``file such
reports with the Secretary as he shall prescribe by regulation'' (29
U.S.C. 673(e)). These reports are to be based on ``the records made and
kept pursuant to Sec. 8(c) of this Act'' (29 U.S.C. 673(e)).
Section 20 of the Act, 29 U.S.C. 669, contains additional implicit
authority for collecting and disseminating data on occupational
injuries and illnesses. Section 20(a) empowers the Secretaries of Labor
and Health and Human Services to consult on research concerning
occupational safety and health problems, and provides for the use of
such research, ``and other information available,'' in developing
criteria on toxic materials and harmful physical agents. Section 20(d)
states that ``[i]nformation obtained by the Secretary . . . under this
section shall be disseminated by the Secretary to employers and
employees and organizations thereof.''
[[Page 18535]]
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, aim to correct
particular identified workplace hazards, while regulations further the
general enforcement and detection purposes of the OSH Act (see
Workplace Health & Safety Council v. Reich, 56 F.3d 1465, 1468 (D.C.
Cir. 1995) (citing La. Chem. Ass'n v. Bingham, 657 F.2d 777, 781-82
(5th Cir. 1981)); United Steelworkers of Am. v. Auchter, 763 F.2d 728,
735 (3d Cir. 1985)). Recordkeeping requirements promulgated under the
Act are characterized as regulations (see 29 U.S.C. 657 (using the term
``regulations'' to describe recordkeeping requirements); see also
Workplace Health & Safety Council v. Reich, 56 F.3d 1465, 1468 (D.C.
Cir. 1995) (citing La. Chem. Ass'n. v. Bingham, 657 F.2d 777, 781-82
(5th Cir. 1981); United Steelworkers of Am. v. Auchter, 763 F.2d 728,
735 (3d Cir. 1985)).
This proposed 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 proposed rule is reasonable. The proposed
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,
n.2). This proposed rule, like that hypothetical, establishes general
reporting requirements based on objective criteria and does not vest
field staff with any discretion. The employers that are required to
report data, the information they must report, and the time when they
must report it are clearly identified in the text of the rule and in
supplemental notices that will be published pursuant to the Paperwork
Reduction Act.
Additionally, with regard to publication of collected data, FOIA
generally supports OSHA's intention to publish information on a
publicly available website. FOIA provides that certain Federal agency
records must be routinely made ``available for public inspection and
copying'' in agency reading rooms. See, 5 U.S.C. 552(a)(2) (2000).
These reading rooms contain basic agency materials such as agency
manuals, specific agency policy statements, and opinions developed in
the adjudication of cases. Subsection (a)(2) provides that agencies
must include any records processed and disclosed in response to a FOIA
request that ``the agency determines have become or are likely to
become the subject of subsequent requests for substantially the same
records.''
Based on its experience, OSHA believes that the recordkeeping
information from the Forms 300, 301, and 300A required to be submitted
under this proposed rule will likely be the subject of multiple FOIA
requests in the future. As such, the agency plans to place the
recordkeeping information that will be posted on the public OSHA
website in its Electronic FOIA Library. Since agencies may ``withhold''
(i.e., not make available) a record (or portion of such a record) if it
falls within a FOIA exemption, just as they can do in response to FOIA
requests, OSHA will place the published information in its FOIA Library
consistent with all FOIA exemptions.
III. Summary and Explanation of the Proposed Rule
A. Description of Proposed Revisions
1. Section 1904.41(a)(1)--Annual Electronic Submission of Information
From OSHA Form 300A Summary of Work-Related Injuries and Illnesses by
Establishments With 20 or More Employees in Designated Industries
Under proposed Sec. 1904.41(a)(1), establishments that had 20 or
more employees at any time during the previous calendar year, and are
classified in an industry listed in appendix A to subpart E, would be
required to electronically submit information from their OSHA Form 300A
to OSHA or OSHA's designee once a year. The current recordkeeping
regulation requires two categories of establishments to electronically
submit information from their Form 300A to OSHA on an annual basis.
First, current Sec. 1904.41(a)(1) requires establishments with 250 or
more employees at any time during the previous calendar year, in all
industries that are routinely required to keep OSHA injury and illness
records, to electronically submit information from their 300A to OSHA
once a year. Second, current Sec. 1904.41(a)(2) requires
establishments with 20-249 employees at any time during the previous
calendar year, in industries listed in appendix A to subpart E of part
1904, to electronically submit information from
[[Page 18536]]
their OSHA 300A to OSHA or OSHA's designee once a year.
The proposed rule would not impose any new requirements on
establishments to electronically submit information from their Form
300A to OSHA. All establishments that would be required to
electronically submit Form 300A information to OSHA on an annual basis
under the proposed rule are already subject to that requirement under
the current regulation. This includes all of the establishments with
250 or more employees that would be required to electronically submit
information to OSHA under proposed Sec. 1904.41(a)(2), which are
already required to submit this information under the current
regulation at Sec. 1904.41(a)(1).
As discussed in more detail below, proposed Sec. 1904.41(a) would
remove the electronic submission requirement for certain establishments
with 250 or more employees. Currently, all establishments of this size
in industries routinely required to keep injury and illness records are
required to electronically submit information from their Form 300A to
OSHA once a year. The proposal requires this submission only for the
establishments in industries listed in appendix A. OSHA believes that
only a small number of establishments would be excluded by the
proposal. In calendar year 2020, 2,665 establishments with 250 or more
employees, in an industry not in current appendix A to subpart E,
submitted information from their 2019 Form 300A to OSHA. Under proposed
Sec. 1904.41(a), these establishments would no longer be required to
electronically submit Form 300A data to OSHA.\5\ The agency has
preliminarily determined that collecting Form 300A data from this
relatively small number of large establishments in lower-hazard
industries is not a priority for OSHA inspection targeting or
compliance assistance activities.\6\
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\5\ See docket exhibit OSHA-2021-006-0003 for the list of
industries in which establishments with 250 or more employees would
no longer be required to electronically submit Form 300A data to
OSHA.
\6\ In 2016, OSHA established the list of industries in current
appendix A to subpart E based on a 2011-2013 three-year-average Days
Away, Restriction, and Job Transfer (DART) rate greater than 2.0 in
the BLS Survey of Occupational Injuries and Illnesses.
---------------------------------------------------------------------------
Additionally, OSHA proposes to revise appendix A to subpart E to
update the list of designated industries to conform with the 2017
version of the North American Industry Classification System (NAICS).
The Office of Management and Budget, through its Economic
Classification Policy Committee (ECPC), reviews and considers revisions
for NAICS, a statistical classification system, every five years. In
2016, when OSHA revised Sec. 1904.41, the agency used the 2012 version
of NAICS to designate the industries in which establishments with 20-
249 employees were required to electronically submit Form 300A data to
OSHA. (See current appendix A to subpart E of part 1904). The Office of
Management and Budget has since issued two updates to the NAICS codes:
2017 NAICS codes and 2022 NAICS codes. The update from 2012 NAICS to
2017 NAICS would have the benefit of using more current NAICS codes, as
well as ensuring that both proposed appendix A and proposed appendix B
(referenced in proposed Sec. 1904.41) use the same version of NAICS.
As explained below, the industries in proposed appendix B are a subset
of the industries in appendix A. Also, the 2017 version of NAICS is the
version currently used by BLS for the SOII data that OSHA is using for
this rulemaking, and employers are likely more familiar with the 2017
industry codes.
This proposed revision would not impact which industries are
covered and therefore required to provide their data.\7\ It would
merely reflect the updated 2017 NAICS codes. For appendix A, OSHA is
limiting the scope of this rulemaking to the proposed update from the
2012 version of NAICS to the 2017 version of NAICS. Other changes to
appendix A are not within the scope of this rulemaking.
---------------------------------------------------------------------------
\7\ Note that the proposed rule would remove NAICS 7213, Rooming
and Boarding Houses, from proposed appendix A to subpart E. That
specific NAICS industry group, which is listed in the part 1904 Non-
Mandatory appendix A to subpart B--Partially Exempt Industries, is
not routinely required to keep OSHA injury and illness records.
However, that NAICS industry group was mistakenly included in
appendix A to subpart E when OSHA published the 2016 final rule.
---------------------------------------------------------------------------
For proposed (i.e., updated) appendix A, the change from the 2012
NAICS to the 2017 NAICS would affect only a few industry groups at the
4-digit NAICS level. Specifically, the 2012 NAICS industry group 4521
(Department Stores) is split between the 2017 NAICS industry groups
4522 (Department Stores) and 4523 (General Merchandise Stores,
including Warehouse Clubs and Supercenters). Also, the 2012 NAICS
industry group 4529 (Other General Merchandise Stores) is included in
2017 NAICS industry group 4523 (General Merchandise Stores, including
Warehouse Clubs and Supercenters).
The proposed revised appendix A is as follows:
Proposed Appendix A
------------------------------------------------------------------------
2017 NAICS code 2017 NAICS title
------------------------------------------------------------------------
11.......................... Agriculture, forestry, fishing and
hunting.
22.......................... Utilities.
23.......................... Construction.
31-33....................... Manufacturing.
42.......................... Wholesale trade.
4413........................ Automotive Parts, Accessories, and Tire
Stores.
4421........................ Furniture Stores.
4422........................ Home Furnishings Stores.
4441........................ Building Material and Supplies Dealers.
4442........................ Lawn and Garden Equipment and Supplies
Stores.
4451........................ Grocery Stores.
4452........................ Specialty Food Stores.
4522........................ Department Stores.
4523........................ General Merchandise Stores, including
Warehouse Clubs and Supercenters.
4533........................ Used Merchandise Stores.
4542........................ Vending Machine Operators.
4543........................ Direct Selling Establishments.
4811........................ Scheduled Air Transportation.
4841........................ General Freight Trucking.
[[Page 18537]]
4842........................ Specialized Freight Trucking.
4851........................ Urban Transit Systems.
4852........................ Interurban and Rural Bus Transportation.
4853........................ Taxi and Limousine Service.
4854........................ School and Employee Bus Transportation.
4855........................ Charter Bus Industry.
4859........................ Other Transit and Ground Passenger
Transportation.
4871........................ Scenic and Sightseeing Transportation,
Land.
4881........................ Support Activities for Air Transportation.
4882........................ Support Activities for Rail
Transportation.
4883........................ Support Activities for Water
Transportation.
4884........................ Support Activities for Road
Transportation.
4889........................ Other Support Activities for
Transportation.
4911........................ Postal Service.
4921........................ Couriers and Express Delivery Services.
4922........................ Local Messengers and Local Delivery.
4931........................ Warehousing and Storage.
5152........................ Cable and Other Subscription Programming.
5311........................ Lessors of Real Estate.
5321........................ Automotive Equipment Rental and Leasing.
5322........................ Consumer Goods Rental.
5323........................ General Rental Centers.
5617........................ Services to Buildings and Dwellings.
5621........................ Waste Collection.
5622........................ Waste Treatment and Disposal.
5629........................ Remediation and Other Waste Management
Services.
6219........................ Other Ambulatory Health Care Services.
6221........................ General Medical and Surgical Hospitals.
6222........................ Psychiatric and Substance Abuse Hospitals.
6223........................ Specialty (except Psychiatric and
Substance Abuse) Hospitals.
6231........................ Nursing Care Facilities (Skilled Nursing
Facilities).
6232........................ Residential Intellectual and Developmental
Disability, Mental Health, and Substance
Abuse Facilities.
6233........................ Continuing Care Retirement Communities and
Assisted Living Facilities for the
Elderly.
6239........................ Other Residential Care Facilities.
6242........................ Community Food and Housing, and Emergency
and Other Relief Services.
6243........................ Vocational Rehabilitation Services.
7111........................ Performing Arts Companies.
7112........................ Spectator Sports.
7121........................ Museums, Historical Sites, and Similar
Institutions.
7131........................ Amusement Parks and Arcades.
7132........................ Gambling Industries.
7211........................ Traveler Accommodation.
7212........................ RV (Recreational Vehicle) Parks and
Recreational Camps.
7223........................ Special Food Services.
8113........................ Commercial and Industrial Machinery and
Equipment (except Automotive and
Electronic) Repair and Maintenance.
8123........................ Drycleaning and Laundry Services.
------------------------------------------------------------------------
OSHA welcomes public comment on the proposed changes to Sec.
1904.41(a)(1).
2. Section 1904.41(a)(2)--Annual Electronic Submission of 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 by Establishments With 100 or More Employees in
Designated Industries
Section 1904.41(a)(2) of the proposed rule would add a requirement
for establishments that had 100 or more employees at any time during
the previous calendar year, and that are in an industry listed in
proposed appendix B to subpart E, to electronically submit to OSHA or
OSHA's designee once a year, certain information from the OSHA Forms
300, 301, and 300A.
The requirement in proposed Sec. 1904.41(a)(2) for the submission
of 300A data by establishments with 100 or more employees in industries
listed in proposed appendix B to subpart E would not be new. All of the
establishments with 100 or more employees in industries listed in
proposed appendix B to subpart E are already required to electronically
submit 300A data to OSHA once a year under current 29 CFR 1904.41.
However, the proposed requirement for the electronic submission of data
from the 300 and 301 forms would be new.
As discussed above in the Regulatory History section of this
preamble, in 2016, OSHA issued a final rule that revised the
recordkeeping regulation at 29 CFR 1904.41 to require establishments
with 250 or more employees that are routinely required to keep injury
and illness records to electronically submit information from their 300
and 301 forms to OSHA once a year. The 300 and 301 data submission
requirement from the 2016 rulemaking was never fully implemented, and
OSHA never collected 300 and 301 data electronically from employers
covered by the requirements in the 2016 final rule.
In 2019, OSHA issued a final rule that removed the requirement for
the annual electronic submission of 300 and 301 data to OSHA. In the
preamble to the 2019 final rule, OSHA explained that the 300/301
submission requirement
[[Page 18538]]
was being removed because the collection of such data would expose
sensitive worker information to a meaningful risk of disclosure, and
that ``OSHA cannot justify that risk given its resource allocation
concerns and the uncertain incremental benefits to OSHA of collecting
the data'' (84 FR 387). In addition, ``OSHA . . . determined that the
best use of its resources [was] to focus on data it already receives--
including a large set of data from Form 300A, as well as discrete data
about urgent issues from severe injury reports--and has found useful in
its past experience'' (84 FR 387).
OSHA has preliminarily determined that the reasons given in the
preamble to the 2019 final rule for the removal of the 300 and 301 data
submission requirement are no longer compelling. As discussed in more
detail below, recent advancements in technology have reduced the risk
that information that reasonably identifies individuals directly, such
as name and contact information, will be disclosed to the public. The
improved technology used to protect sensitive employee data will reduce
costs and resource-allocation issues for OSHA by eliminating the need
to manually identify and remove information that reasonably identifies
individuals directly from submitted data. In addition, the improved
technology has decreased the resources required to analyze the data.
Moreover, because of these improvements, OSHA is now better able to
collect, analyze, and publish data from the 300 and 301 forms, so the
anticipated benefits of collecting the data are more certain. The
collection of case-specific data will allow the agency to focus its
enforcement and compliance assistance resources based on hazard-
specific information and trends, and to increase its ability to
identify emerging hazards, at the establishment level. Accordingly, at
this point, the significant benefits of collecting establishment-
specific, case-specific data from the 300 and 301 forms outweigh the
slight risk to employee privacy.
To this point in time, OSHA has successfully collected reference
year 2016 through 2020 Form 300A data through the OSHA Injury Tracking
Application. Approximately 300,000 records have been submitted to the
agency each year. OSHA has successfully analyzed these data to identify
establishments with elevated injury and illness rates and has focused
both its enforcement and outreach resources towards these
establishments. This experience demonstrates OSHA's ability to collect,
analyze, and use large volumes of data to interact with establishments
where workers are being injured or becoming ill. However, this same
experience has demonstrated the limits of the data currently collected.
For example, OSHA is currently developing a National Emphasis Program
to address the hazards associated with environmental heat. Without
case-specific injury and illness data, the agency is unable to identify
specific establishments where workers are suffering work-related heat
disorders. The Summary data from Form 300A do not provide the level of
detail required to address specific occupational hazards.
Based on the agency's experience with collecting and using the Form
300A data and the development of a system to auto-code case-specific
data, OSHA is now better able to collect, analyze, and publish data
from the 300 and 301 forms, so the anticipated benefits of collecting
the data are more certain.
a. The Data Collection Will Adequately Protect Information That
Reasonably Identifies Individuals Directly
As explained in the 2019 final rule, OSHA Forms 300 and 301 contain
information that reasonably identifies individuals directly, such as
name, contact information, date of birth, and physician name, for the
workers who experienced a recordable injury or illness. The OSHA Forms
300 and 301 also contain fields that are not direct identifiers but
that could act as indirect identifiers if released and combined with
other information, such as job title on the Form 300, time employee
began work on the Form 301, and date of death on the Form 301.
In this rulemaking, OSHA has preliminarily determined that the
proposed data collection would adequately protect information that
reasonably identifies individuals directly, such as name and address,
with multiple layers of protection, including by limiting the amount of
information submitted by employers; reminding employers not to submit
information that reasonably identifies individuals directly;
withholding certain fields from disclosure; and using automated
information technology to detect and remove information that reasonably
identifies individuals directly. In particular, advances in neural
networks and machine learning have strengthened OSHA's ability to
protect information that reasonably identifies individuals directly.
First, the proposed rule would protect information that reasonably
identifies individuals directly by limiting the amount of information
submitted by employers. Under proposed Sec. 1904.41(b)(9), for the 300
Log, OSHA does not intend to collect employees' names (column B). For
the 301 Incident Report, OSHA will not collect the following
information: Employee name (field 1), employee address (field 2), name
of physician or other health care professional (field 6), and facility
name and address if treatment was given away from the worksite (field
7). Since these fields would not be collected, there would be no risk
of public disclosure of the data in these fields.
In addition, OSHA plans to limit the information that reasonably
identifies individuals directly collected in the system by posting
reminders to employers to omit information that reasonably identifies
individuals directly, such as names, addresses, or Social Security
numbers, from the text fields they submit. OSHA routinely uses these
types of instructions, such as when it requests comments from
stakeholders in rulemakings such as this one (see ``Instructions'' on
submitting comments above), and has found these reminders to be an
effective manner of preventing the unintentional submission and
collection of personal information that reasonably identifies
individuals directly. Again, if this information is not submitted in
the first place, there will be no risk of its disclosure to the public.
Second, OSHA plans to design the collection system to provide extra
protections for some of the personal information that employers would
be required to submit under the proposal. Specifically, the proposal
would require employers to submit the employee's date of birth from
OSHA Form 301 (Field 3 on OSHA Form 301). However, the agency plans to
design the collection system so that it will immediately calculate the
employee's age based on the date of birth entered and then store only
the employee's age, not their date of birth.
Third, as described in more detail below, OSHA would seek to
protect information that reasonably identifies individuals directly and
certain other elements of personal information submitted under the
proposed rule by withholding certain fields from public disclosure. The
OSHA Form 301, 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. Under the provisions about
access to employees and employee representatives in OSHA's
recordkeeping regulation, Sec. 1904.35(b)(2)(v)(A) and (B) prohibit
the release of information in fields 1
[[Page 18539]]
through 9 to individuals other than the employee or former employee who
suffered the injury or illness and his or her personal representatives.
As noted above, OSHA's proposal would not require employers to submit
some of those items (fields 1, employee full name; 2, employee address;
6, name of physician or other health care professional; and 7,
treatment location). In addition, consistent with Sec.
1904.35(b)(2)(v)(A) and (B), OSHA proposes to collect but would not
release the information from the remaining fields that are likely to
contain private worker information: Age (calculated from date of birth
in field 3), date hired (field 4), gender (field 5), whether the
employee was treated in the emergency room (field 8), and whether the
employee was hospitalized overnight as an in-patient (field 9). Thus,
there would be little risk of public disclosure of this information.
Fourth, as explained above, consistent with FOIA, OSHA does not
intend to release or post information that reasonably identifies
individuals directly collected through proposed Sec. 1904.41(a)(2)
and, via the use of the protective measures described above and the
scrubbing technology described below, the agency preliminarily finds
that it can effectively remove such information that reasonably
identifies individuals directly before releasing or posting the data.
Moreover, OSHA notes that the 2019 rulemaking took an expansive view of
the term ``PII.'' For example, in that rule, OSHA regarded information
such as descriptions of workers' injuries and the body parts affected
(Field F on Form 300, Field 16 on Form 301), as ``quite sensitive,''
and stated that public disclosure of this information under FOIA or
through the OSHA Injury Tracking Application (ITA) would pose a risk to
worker privacy. As further justification for deciding to rescind the
requirement to submit information from Forms 300 and 301, the agency
stated that ``although OSHA believes data from Forms 300 and 301 would
be exempt from disclosure under FOIA exemptions, OSHA is concerned that
it still could be required by a court to release the data'' (84 FR
383).
After further consideration, OSHA has preliminarily determined that
the 2019 rule's position on such information is at odds with the
agency's usual practice of releasing such data. OSHA currently collects
these forms from employers during inspections and, when the agency
receives a FOIA request to which these records are responsive, the only
field on OSHA Form 300 that is always withheld from disclosure under
the FOIA is employee name (column B). Similarly, OSHA has often
released the fields on the right-hand side of the OSHA Form 301 (fields
10 through 18) in response to FOIA requests. And the agency has
regularly released similar information contained in the OSHA
Information System (OIS) database in response to FOIA requests. For
example, OSHA regularly releases data in the Hazard Description and
Location field in closed cases in OIS, which often contains specific
information about injuries. This practice of producing such case-
specific information is long-standing, and the agency has not been
notified of issues regarding employee identification or re-
identification, despite that some of the released fields could act as
indirect identifiers if combined with additional information or data
external to the agency release or already in the requestor's
possession.
In addition, OSHA uses FOIA Exemption 7(c) to withhold from
disclosure information that reasonably identifies individuals directly,
such as Social Security numbers or telephone numbers, included anywhere
on the three OSHA recordkeeping forms. In addition, 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)]. Thus, for example, although OSHA sometimes releases
information in Field 15 of the 301 incident report (``Tell us how the
injury occurred'') in response to a FOIA request, it redacts
information that reasonably identifies individuals directly, such as a
name or Social Security number, by applying either Exemption 6, which
permits the withholding of information contained in personnel and
medical files or similar files, the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy, or
Exemption 7(C), which protects information found in law enforcement
files where disclosure could reasonably be expected to constitute an
unwarranted invasion of personal privacy.
Finally, OSHA preliminarily finds that existing privacy scrubbing
technology is capable of de-identifying certain information that
reasonably identifies individuals directly (such as name, phone number,
email address, etc.) that may be submitted by employers to the system.
As explained in the 2019 rulemaking, in order for OSHA to avoid
publishing information that reasonably identifies individuals directly
that may be contained within text fields in the employer-submitted 300
and 301 data, information that reasonably identifies individuals
directly that has been submitted must be identified and removed. The
large volume of information from text fields submitted under the
proposed requirement would preclude human review and redaction of
information that reasonably identifies individuals directly without
great expenditure of resources. However, there are recent advances in
automated computer programs that can detect information that reasonably
identifies individuals directly, and which can be customized to also
replace submitted text strings with placeholder characters or
anonymized descriptive phrasing that indicate what type of information
was replaced. This replacement process anonymizes and improves
readability of the text entry. For example, a telephone number would be
replaced with the word ``[number]'' or ``[telephone number],''
formatted to indicate a replacement has occurred.
In general, the tasks of detecting and categorizing information
that reasonably identifies individuals directly can be accomplished
either by automated systems using rules-based methods, machine-learning
methods, deep learning, or hybrid approaches using Natural Language
Processing (NLP). NLP refers to computer algorithms that both recognize
and categorize text strings according to tested business rules. Machine
learning methods typically refer to trained automated de-identification
using labeled test datasets to develop relationships within the wording
of, in this case, text fields in the Forms 300 and 301. With this
approach, the statistical likelihood of phrases and wording being
information that reasonably identifies individuals directly can be
calculated based on evaluating the word or phrase as well as wording
around a phrase and throughout the passage. Detection and anonymization
rules developed with test datasets can be examined for accuracy, and
revised as needed, by applying de-identification protocols to a
separate set of test records or review by an independent expert prior
to use.
Deep learning systems apply detection algorithms in a fashion that
mimics the non-linear processing of human neural networks. ``Deep''
refers to the number of layers through which the data are examined to
extract higher level relationships in the input data. The statistical
methods used for this approach are specific to the type of domain and
type of information being processed (e.g., text or photographic
images). Deep learning solutions to
[[Page 18540]]
classification of text, and the subcategory of de-identification, can
yield results superior to classical machine-based learning in that they
can capture contextual information in the passage. OSHA is committed to
protecting information that reasonably identifies individuals directly
such as name and address in published data, and the agency intends to
test multiple applications for identifying and removing this
information using a test database of the four free text fields, and
then analyzing the results (including manual review) to identify the
best product.
AI or machine learning--the technology used to detect, redact, and
remove information that reasonably identifies individuals directly from
structured and unstructured data fields--has advanced rapidly in recent
years. Many vendors, including large commercial vendors, provide
solutions for securing information that reasonably identifies
individuals directly, including Cloud-based solutions and packages for
detecting and redacting or removing information that reasonably
identifies individuals directly from unstructured text like the OSHA
300 and 301 data fields. For example, Vendor A has a natural-language
processing (NLP) service that uses machine learning to identify key
words and phrases in unstructured text to detect and redact information
that reasonably identifies individuals directly by replacing the term
of interest with a character. Vendor A's service automatically
identifies personal (e.g., name, address, and age), financial (e.g.,
bank account and routing numbers and PINs), technical security (e.g.,
passwords, usernames, and IP addresses), and national (e.g., SSN and
driver's license numbers) identifying information. Vendor A also has a
HIPAA-eligible NLP for extracting health data from unstructured text/
data fields, thus protecting patient information. The initial release
date for Vendor A's product was November 29, 2017. Similarly, Vendor B
offers a service to detect, categorize, and remove personal identifying
information (PII) and personal health information (PHI) in unstructured
text across several pre-defined categories (e.g., name, job types,
email, address, phone); the initial release date for Vendor B's product
was March 1, 2018. Vendor C provides an open-source package for
identification, anonymization, and redaction of certain PII in
structured and unstructured text; the initial release date for Vendor
C's product was March 21, 2018. Vendor D provides a similar product
that de-identifies sensitive data in text by replacing it with a token,
symbol, or key thereby hiding the sensitive data. The hidden data can
only be restored with a specific key or token that was used to de-
identify the data. The initial release date for Vendor D's product was
March 2, 2021. Each of these commercially available services is
customizable and could be modified to identify and remove information
that reasonably identifies individuals directly such as name and
address from the 300 and 301 data collected.
OSHA intends to test multiple AI or machine learning methods,
including commercial services, and analyze the results carefully to
select the best option to secure and protect information that
reasonably identifies individuals directly, such as name and address.
No option, including a manual review, is 100% effective. Therefore,
OSHA could consider a combination of the selected scrubbing application
supplemented by some manual review of the data to protect information
that reasonably identifies individuals directly.
In summary, OSHA preliminarily finds that the agency would be able
to adequately protect workers' information that reasonably identifies
individuals directly (such as name and address) using the safeguards in
the proposed rule and OSHA's planned data collection system, in
combination with warnings to employers and available automated
information technology. In addition, the use of the automated
informational technology would significantly decrease the need for the
type of resource-intensive manual reviews that OSHA was concerned about
in the 2019 rulemaking. Moreover, even if some of these data were
ultimately used to identify employees, OSHA preliminarily finds that
the benefits of collecting and publishing the data for improving safety
and health outweigh potential privacy problems. As discussed below, the
proposed data collection will further OSHA's statutory mission to
assure safe and healthful working conditions for working people by
providing data information for OSHA's targeting and compliance
assistance efforts.
OSHA expects a Privacy Impact Assessment to be completed before
issuing the final rule. OSHA welcomes public comment on the issue of
collecting data that includes PII and protecting information that
reasonably identifies individuals directly such as name and address
from disclosure.
b. Recent Technological Developments Have Significantly Decreased the
Resources Needed for OSHA To Collect, Analyze, Use, and Publish
Establishment-Specific, Case-Specific Data
In addition to the worker privacy concerns, OSHA's decisions in the
2019 final rule relied in part on resource concerns. The agency
preliminarily finds that these concerns are no longer compelling, in
part, because recent technological developments in automated data
coding for text-based fields have made it easier and more cost
effective for OSHA to efficiently use electronically-submitted,
establishment-specific, case-specific injury and illness data to
improve OSHA's ability to identify, target, and remove workplace safety
and health hazards, resulting in the prevention of work-related
fatalities, injuries, and illnesses. The specific estimated cost burden
on OSHA and employers for data collection is discussed in the
Preliminary Economic Analysis section, below.
The primary information technology improvement relates to the
coding of data. Specifically, in order to enable OSHA and stakeholders
to undertake statistical analyses of information in text fields in the
Forms 300 and 301, which include details regarding the circumstances
and causes of workplace injuries and illnesses, OSHA intends to use
automated systems to assign standardized codes based on the information
contained in the text fields (e.g., type of accident is ``fall'').
Automated, standardized coding of information in text fields would
allow OSHA to easily identify individual establishments that have
experienced injuries and illnesses of a focused interest (such as falls
from heights), assess the effectiveness of employers' health and safety
programs, and evaluate OSHA's assistance programs.
Standardized coding of information from text fields in Forms 300
and 301 is already being done by BLS. Each year, BLS collects SOII data
from sampled OSHA Forms 300 and 301, with approximately 300,000 written
descriptions of work-related injuries and illnesses collected by the
survey. BLS uses the information provided on these OSHA forms to
generate detailed statistics on the case characteristics of work-
related injuries or illnesses. In order to generate statistics, the
text entries in the OSHA forms must be converted to standard BLS codes.
SOII data are coded according to the BLS Occupational Injury and
Illness Classification System (OIICS) (Version 2.01). Specific codes
are assigned to the
[[Page 18541]]
narrative to classify case characteristics such as the nature of the
injury/illness, the part of the body affected, the event or exposure,
and the source of the injury or illness. Prior to 2014, BLS assigned
OIICS codes to the case narratives manually, which was both time
consuming and subject to error. In 2014, BLS began using machine
learning to code a subset of cases, first by selecting a learning
algorithm, then by training it on large quantities of previously coded
SOII narratives. During this training process, the algorithm calculated
how strongly various features, such as words, pairs of words, and other
items, were associated with the codes that could be assigned. After the
training process, the algorithm was used to estimate the best codes for
each uncoded narrative and assigned the codes if the model's confidence
exceeded a predetermined threshold.
When codes were assigned manually, overall accuracy was around 71%.
Accuracy with neural network autocoding was around 82%. Autocoding
could be used for all the information collected but performance was
worse on rarer codes. BLS decided to use a combination of autocoding
and manual coding. From 2014 to 2017, the percent of codes
automatically assigned rose to around 67%, but autocoding had reached a
point of diminishing returns.
With the old autocoder previously coded narratives were broken up
into smaller pieces, typically individual words and short word
sequences, and used to estimate how strongly each piece was associated
with each possible code. New narratives were then coded by identifying
their individual pieces and aggregating the previously learned
associations to choose the most closely associated code. Some of the
problems with the old autocoder included only identifying words in a
phrase without thought to context, i.e., ``worker fell on car'' was the
same as ``car fell on worker''; too many two- and three-word sequences;
and separate autocoder models for each type of information, i.e.,
separate models for occupation, nature, part, event, and source.
However, in 2018, BLS switched to deep neural networks. Like the
older autocoder, neural networks rely on training data to learn and
improve their accuracy over time. 2017 research found that the neural
network autocoder outperformed the alternatives across all coding tasks
and made an average of 24% fewer errors than the logistic regression
autocoders, and an estimated 39% fewer errors than the manual coding
process. On each task the neural network's accuracy was statistically
greater than the next best alternative at a p-value of 0.001 or
less.\8\ By 2019, automatic coding had been expanded to include all six
primary coding tasks (occupation, nature, part, source, secondary
source, and event) with the model assigning approximately 85% of these
codes.\9\
---------------------------------------------------------------------------
\8\ See ``Deep neural networks for worker injury autocoding'',
Alexander Measure, U.S. Bureau of Labor Statistics, draft as of 9/
18/2017: https://www.bls.gov/iif/deep-neural-networks.pdf.
\9\ See https://www.bls.gov/iif/autocoding.htm.
---------------------------------------------------------------------------
The BLS system is already collecting data using OSHA Forms 300 and
301, so OSHA should be able to mirror the BLS system to code the OSHA
data fairly easily. OSHA could use the BLS source code to create a
pilot system where the autocoding of realistic OSHA data could be
tested and compared to manual coding of the same data. Upon successful
testing and adoption of the BLS system, OSHA plans to consult and work
with BLS for the long-term system maintenance to continuously update
the neural network code and refine automation of the data.
Once the data were coded, OSHA would be able to use the data
similarly to how the agency currently uses coded data from the Severe
Injury Reporting (SIR) program. The SIR Program collects data on all
severe work-related injuries and illnesses, defined as an amputation,
in-patient hospitalization, or loss of an eye. Under OSHA's
recordkeeping regulation at 29 CFR 1904.39, employers must report
certain information about these severe injuries/illnesses to OSHA
within 24 hours of occurrence. On a monthly basis, OSHA reviews the SIR
data and trained analysts assign OIICS codes (nature, part, event, and
source) for each SIR narrative, thus making the data searchable/query-
able and more useful for agency programs. See Docket exhibit OSHA-2021-
006-0005 for an example of a search interface for the data that would
be collected under this proposal. OSHA could also combine the coded
data with other data sources (e.g., inspection data or ITA data) to
increase the utility of the data.
In making these preliminary findings for this rulemaking, OSHA
notes that some autocoding information technology was available during
the 2019 rulemaking. In fact, in the 2018 NPRM, OSHA specifically
requested comment on other agencies or organizations that use automated
coding systems for text data in data collections (83 FR 36494, 36500).
Commenters on this issue urged OSHA to consult with other agencies that
collect this type of data, including the National Institute for
Occupational Safety & Health (NIOSH), the Mine Safety and Health
Administration (MSHA), BLS, the Federal Railroad Administration (FRA),
and the Federal Aviation Administration (FAA), to learn about database
design and best practices for collecting this kind of data (84 FR 389).
In its own comments, NIOSH noted that it had already developed
autocoding methods for categorizing occupation and industry based on
free text data and had successfully utilized similar free text data
collected from workers' compensation claims (84 FR 389). NIOSH also
generously offered to help OSHA with data analysis (84 FR 389).
After reviewing these comments to the 2018 NPRM, OSHA determined
that ``NIOSH's ability to analyze data collected from Forms 300 and 301
does not reduce the burden on OSHA to collect the data. Even if NIOSH
could make the data useful for OSHA's enforcement targeting and
outreach efforts, which NIOSH itself has suggested would present
analytical challenges due to the volume of the data, OSHA and employers
would be left covering the expense of collection, not to mention
additional expense associated with the need to process and otherwise
manually review data from the forms--costs that would detract from
OSHA's priorities of enforcement and compliance assistance to reduce
workforce hazards'' (84 FR 389). Ultimately, OSHA determined that any
benefits of electronically collecting the Form 300 and 301 data were
outweighed by the cost of developing a system to manage that volume of
data, particularly when making use of the data would divert resources
away from OSHA's then-current priority of fully utilizing Form 300A and
severe injury data for targeting and outreach (84 FR 389).
In this proposal, OSHA has specific information from BLS regarding
its technology. Following conversations with BLS since the 2019
rulemaking, OSHA is confident that it would be able to utilize similar
technology in a cost-effective manner to code the data from OSHA Forms
300 and 301, avoiding many of the resource concerns specified in the
2019 rulemaking. Moreover, as discussed in more detail below, OSHA has
preliminarily determined that benefits to worker safety and health far
outweigh the potential costs of the systems necessary to collect these
data, make them useful for analysis, analyze them, and publish them for
stakeholder use.
In summary, available technology, including recent improvements in
autocoding information technology, would enable OSHA to efficiently
autocode the data from electronically-
[[Page 18542]]
submitted OSHA Forms 300 and 301. The agency would not need to rely
primarily on manual review or analysis. Consequently, OSHA has
preliminarily determined that the agency's 2019 resource-related
concerns are no longer compelling. The agency welcomes public comment
on the issue of automated coding of text-field data and other available
technology that would enable OSHA to automatically code these data.
c. The Collection, Analysis, and Publishing of These Data Would Improve
Worker Safety and Health
The value of the new de-identification and autocoding information
technology discussed is significant. Most importantly, the new
autocoding technology will allow OSHA to more effectively focus its
enforcement and compliance assistance resources on specific
establishments experiencing safety and health problems. Access to case-
specific injury and illness data will also allow OSHA to better
identify safety and health hazards. For example, unlike 300A data,
which include heat illnesses in the category ``all other illnesses''
(Field M6), 300 and 301 data would allow OSHA to identify
establishments with heat illnesses and allow the agency to focus its
enforcement and compliance assistance resources on specific industries
or types of workplaces with that specific hazard. Similarly, 300A data
group all injuries into the single category ``injuries'' (Field M1),
but 300 and 301 data would allow OSHA to identify establishments whose
delivery workers experience different types of injuries, such as
traffic violence injuries or lifting injuries.
In addition, reliance on only 300A data limits OSHA's ability to
analyze and address existing workplace hazards. For example, the
collection of 300A data provides OSHA with access to general
information about certain illnesses, such as recorded cases involving
work-related respiratory illness. However, the collection of 300A data
does not provide OSHA with information about specific respiratory
illnesses, such as cases involving work-related COVID-19. On the other
hand, the collection and analysis of case-specific data would allow
OSHA to identify specific establishments that have experienced recorded
cases of work-related COVID-19, which could result in OSHA enforcement
efforts and compliance assistance at that facility.
Similarly, together with the other protections proposed for the
data collection, the new de-identification technology will allow OSHA
to make the establishment-specific, case-specific, data publicly
available in both coded and uncoded form, increasing workplace safety
and health while providing protection against release of PII.
Employers, employees, employee representatives, potential employees,
customers and potential customers, workplace safety consultants, and
members of the general public will all benefit from access to this
information in a timely manner. For example, potential employees and
potential customers will be able to review case-specific injury and
illness data to make informed decisions on whether to seek employment
at, or whether to do business with, a specific establishment. In turn,
with heightened public awareness of injuries and illnesses at a given
establishment, individual employers will be encouraged to increase
their focus on enhancing workplace safety and health at their facility.
In addition, researchers will have access to a detailed, case-
specific, establishment-specific dataset of work-related recordable
injuries and illnesses, improving their ability to conduct
occupational-health studies, as well as identify increasing or emerging
hazards. For example, access to case-specific information could be
extremely useful to individuals and public health agencies conducting
research on the causes and prevention of work-related COVID-19.
In summary, OSHA preliminarily finds that the benefits for worker
safety and health of collecting, analyzing, and publishing data from
Forms 300 and 301 outweigh the cost of the actual collection, analysis,
and publication of those data, which have been reduced since the 2019
rule. The agency invites comment on this preliminary determination.
d. Data Tools Will Enable Stakeholders To Efficiently Use OSHA-
Published Establishment-Specific, Case-Specific Data
Once OSHA has removed PII and coded the case-specific injury and
illness data submitted by employers, the agency plans to make the data
available and able to be queried via a web-based tool. Stakeholders
(including employers, employees, job-seekers, customers, researchers,
workplace safety consultants, and the general public) who are
interested in learning about occupational injuries and illnesses will
have access to information on when injuries and illnesses occur, where
they occur, and how they occur. Stakeholders could also use such a tool
to analyze injury and illness data and identify patterns that are
masked by the aggregation of injury/illness data in existing data
sources.
Tool functionality could include:
The ability to compare rates with other establishments by
industry sector, occupation, size, region, and other variables.
The ability to track trends and emerging hazards over
time.
Easy searches by common variables such as OIICS category
(e.g., event), industry sector, occupation, geography, etc.
Provision of related data including workplace-specific
violations, and demographic and economic data for reporting industries,
to help contextualize the injury and illness data.
Links to resources useful in increasing workplace safety
such as best practices for the industry, injury reduction
interventions, and other current health and safety information.
Options for data visualization of the submitted data
(e.g., data visualizations of trends, data table displays, reports with
summary counts and statistics).
Flexibility for accommodating the different needs of
different types of users (for example, an employee might only want to
access information on one establishment, while a researcher may want to
analyze data across an entire industry sector).
Application programming interfaces (APIs) that allow other
web-based tools to retrieve, process, and publish publicly-accessible
OSHA data.
In developing a publicly-accessible tool for injury and illness
data, OSHA would review how other federal agencies, such as the
Environmental Protection Agency (EPA), have made their data publicly
available via online tools that support some analyses. Examples of EPA
tools include:
Toxics Release Inventory Program Pollution Prevention (P2)
Tool (https://enviro.epa.gov/facts/tri/p2.html) provides information
that allows users to explore and compare facility and parent company
environmental performance with respect to the management of toxic
chemical waste, including facilities' waste management practices and
trends.
Enforcement and Compliance History Online (ECHO, https://echo.epa.gov/) contains enforcement and compliance information for EPA-
regulated facilities and allows for analysis in trends of compliance
and enforcement and creation of enforcement-related maps.
Envirofacts (https://enviro.epa.gov/) provides access to
several EPA databases containing information about environmental
activities that affect air,
[[Page 18543]]
water, and land resources in the United States. The data are in a
searchable, downloadable format.
Enviromapper (https://enviro.epa.gov/enviro/em4ef.home)
allows Envirofacts users to generate maps that contain the
environmental information contained in Envirofacts.
Discharge Monitoring Report (DMR) Pollutant Loading Tool
(https://echo.epa.gov/trends/loading-tool/water-pollution-search/)
allows users to determine what pollutants are being discharged into
waterways and by which companies. The output from this tool is in the
form of interactive charts and graphs.
Facility Level Information on Greenhouse Gases Tool
(FLIGHT, https://ghgdata.epa.gov/ghgp/main.do) provides information
about greenhouse gas (GHG) emissions from large facilities in the U.S.
and offers mapping, charting, comparing, and other analysis of
facility-reported data.
Thus, OSHA preliminarily finds that available tools could enable
stakeholders to use OSHA-published data from Forms 300 and 301 to
improve worker safety and health. OSHA welcomes public comment on the
utility of these data for researchers, employers, and other
stakeholders, as well as on available data tools that would enable
these stakeholders to efficiently use OSHA-published establishment-
specific, case-specific data to improve worker safety and health.
e. The Covered Industries
In proposed Sec. 1904.41(a)(2), for establishments with 100 or
more employees, OSHA is seeking to balance the utility of the
information collection for enforcement, outreach, and research, on the
one hand, and the burden on employers to provide the information to
OSHA, on the other hand. The 2016 final rule, which was subsequently
rescinded, required submission of information from the OSHA Form 300,
301, and 300A from all establishments with 250 or more employees in
industries routinely required to keep part 1904 injury and illness
records. In the 2016 final rule, OSHA estimated that establishments
with 250 or more employees covered by that section of the submission
requirement would report 713,397 injury and illness cases per year.
For this rulemaking, to identify the appropriate balance of utility
versus burden, OSHA analyzed five years of injury and illness summary
data collected through OSHA's Injury Tracking Application (ITA). OSHA
examined combinations of establishment size and industry hazardousness
that, like the 2016 final rule, would provide the agency with
information on roughly 750,000 cases of injuries and illnesses per
year. Based on this analysis, OSHA is proposing a reporting requirement
for establishments with 100 or more employees in 4-digit NAICS (2017)
industries that:
1. Had a 3-year-average rate of total recordable cases (Total Case
Rate, or TCR) in the BLS SOII for 2017, 2018, and 2019, of at least 3.5
cases per 100 full-time-equivalent employees, and
2. are included in proposed appendix A to subpart E. (All of the
industries in proposed appendix B are also in appendix A.)
OSHA proposes to list the designated industries required to submit
data from all three recordkeeping forms under proposed Sec.
1904.41(a)(2) in proposed appendix B to subpart E.
OSHA is proposing one exception to these criteria, for the United
States Postal Service (USPS), which is the only employer in NAICS 4911
Postal Service. BLS does not include USPS in the SOII. However, under
the Postal Employees Safety Enhancement Act (Pub. L. 105-241), OSHA
treats the USPS as a private sector employer for purposes of
occupational safety and health, and establishments in NAICS 4911 (i.e.,
USPS establishments) with 20 or more employees are currently required
to electronically submit Form 300A information to OSHA. Using the 2017,
2018, and 2019 data submitted by USPS, OSHA calculated a TCR of 7.5 for
NAICS 4911. Because this TCR is greater than the proposed 3.5 criterion
for designated industries in proposed appendix B, OSHA is including
NAICS 4911 in proposed appendix B to subpart E. OSHA notes that NAICS
4911 is also included in both current and proposed appendix A to
subpart E.
In the 2016 final rule that revised Sec. 1904.41, OSHA used the
rate of cases with days away from work, job restriction, or transfer
(DART) from the BLS SOII to determine the industries included in
appendix A to subpart E of part 1904. However, proposed appendix B to
subpart E is based on the TCR, which includes both cases resulting in
days away from work, job restriction, or transfer, as well as other
recordable cases such as those resulting in medical treatment beyond
first aid. OSHA believes that TCR is the appropriate rate to use for
determining the list of industries in proposed appendix B to subpart E
because covered establishments will be required to electronically
submit information to OSHA on all of their recordable cases, not just
cases that resulted in days away from work, job restriction, or
transfer. In 2020, OSHA received submissions of 2019 Form 300A data
from 46,911 establishments that had 100 or more employees and were in
one of the industries listed in proposed appendix B to subpart E,
accounting for 680,930 total recordable cases and a TCR of 3.6. OSHA
requests comment on whether TCR is the appropriate method for
determining the list of industries in proposed appendix B to subpart E.
Additionally, OSHA anticipates that, by the time that the
department expects to issue the final rule in this rulemaking, more
current industry-level injury and illness data from BLS, as well as
more establishment-specific injury and illness information from the
ITA, will be available. When developing the final rule, OSHA may rely
on the most current data available, as appropriate, for determining the
list of industries in appendix B to subpart E. OSHA seeks comment from
the public on whether the agency should use the most current data when
developing the final rule.
The designated industries, which would be published as appendix B
to subpart E of part 1904, are proposed to be as follows:
Proposed Appendix B
------------------------------------------------------------------------
2017 NAICS code 2017 NAICS title
------------------------------------------------------------------------
1111........................ Oilseed and grain farming.
1112........................ Vegetable and melon farming.
1113........................ Fruit and tree nut farming.
1114........................ Greenhouse, nursery, and floriculture
production.
1119........................ Other crop farming.
1121........................ Cattle ranching and farming.
1122........................ Hog and pig farming.
[[Page 18544]]
1123........................ Poultry and egg production.
1129........................ Other animal production.
1141........................ Fishing.
1151........................ Support activities for crop production.
1152........................ Support activities for animal production.
1153........................ Support activities for forestry.
2213........................ Water, sewage and other systems.
2381........................ Foundation, structure, and building
exterior contractors.
3111........................ Animal food manufacturing.
3113........................ Sugar and confectionery product
manufacturing.
3114........................ Fruit and vegetable preserving and
specialty food manufacturing.
3115........................ Dairy product manufacturing.
3116........................ Animal slaughtering and processing.
3117........................ Seafood product preparation and packaging.
3118........................ Bakeries and tortilla manufacturing.
3119........................ Other food manufacturing.
3121........................ Beverage manufacturing.
3161........................ Leather and hide tanning and finishing.
3162........................ Footwear manufacturing.
3211........................ Sawmills and wood preservation.
3212........................ Veneer, plywood, and engineered wood
product manufacturing.
3219........................ Other wood product manufacturing.
3261........................ Plastics product manufacturing.
3262........................ Rubber product manufacturing.
3271........................ Clay product and refractory manufacturing.
3272........................ Glass and glass product manufacturing.
3273........................ Cement and concrete product manufacturing.
3279........................ Other nonmetallic mineral product
manufacturing.
3312........................ Steel product manufacturing from purchased
steel.
3314........................ Nonferrous metal production and
processing.
3315........................ Foundries.
3321........................ Forging and stamping.
3323........................ Architectural and structural metals
manufacturing.
3324........................ Boiler, tank, and shipping container
manufacturing.
3325........................ Hardware manufacturing.
3326........................ Spring and wire product manufacturing.
3327........................ Machine shops; turned product; and screw,
nut, and bolt manufacturing.
3328........................ Coating, engraving, heat treating, and
allied activities.
3331........................ Agriculture, construction, and mining
machinery manufacturing.
3335........................ Metalworking machinery manufacturing.
3361........................ Motor vehicle manufacturing.
3362........................ Motor vehicle body and trailer
manufacturing.
3363........................ Motor vehicle parts manufacturing.
3366........................ Ship and boat building.
3371........................ Household and institutional furniture and
kitchen cabinet manufacturing.
3372........................ Office furniture manufacturing.
4231........................ Motor vehicle and motor vehicle parts and
supplies merchant wholesalers.
4233........................ Lumber and other construction materials
merchant wholesalers.
4235........................ Metal and mineral merchant wholesalers.
4244........................ Grocery and related product merchant
wholesalers.
4248........................ Beer, wine, and distilled alcoholic
beverage merchant wholesalers.
4413........................ Automotive parts, accessories, and tire
stores.
4422........................ Home furnishings stores.
4441........................ Building material and supplies dealers.
4442........................ Lawn and garden equipment and supplies
stores.
4451........................ Grocery stores.
4522........................ Department stores.
4523........................ General merchandise stores, including
warehouse clubs and supercenters.
4533........................ Used merchandise stores.
4543........................ Direct selling establishments.
4811........................ Scheduled air transportation.
4841........................ General freight trucking.
4842........................ Specialized freight trucking.
4851........................ Urban transit systems.
4852........................ Interurban and rural bus transportation.
4854........................ School and employee bus transportation.
4859........................ Other transit and ground passenger
transportation.
4871........................ Scenic and sightseeing transportation,
land.
4881........................ Support activities for air transportation.
4883........................ Support activities for water
transportation.
4911........................ Postal Service.
[[Page 18545]]
4921........................ Couriers and express delivery services.
4931........................ Warehousing and storage.
5322........................ Consumer goods rental.
5621........................ Waste collection.
5622........................ Waste treatment and disposal.
6219........................ Other ambulatory health care services.
6221........................ General medical and surgical hospitals.
6222........................ Psychiatric and substance abuse hospitals.
6223........................ Specialty hospitals.
6231........................ Nursing care facilities.
6232........................ Residential intellectual and developmental
disability, mental health, and substance
abuse facilities.
6233........................ Continuing care retirement communities and
assisted living facilities for the
elderly.
6239........................ Other residential care facilities.
6243........................ Vocational rehabilitation services.
7111........................ Performing arts companies.
7112........................ Spectator sports.
7131........................ Amusement parks and arcades.
7211........................ Traveler accommodation.
7212........................ RV parks and recreational camps.
7223........................ Special food services.
6239........................ Other residential care facilities.
6243........................ Vocational rehabilitation services.
7111........................ Performing arts companies.
7112........................ Spectator sports.
7131........................ Amusement parks and arcades.
7211........................ Traveler accommodation.
7212........................ RV parks and recreational camps.
7223........................ Special food services.
------------------------------------------------------------------------
OSHA welcomes public comment on all aspects of proposed appendix B,
including the specific issues noted above.
3. Section 1904.41(b)(1)(i) and (ii)
Proposed Sec. 1904.41(b)(1) would provide employers with further
clarity on which employers and establishments need to submit data under
proposed Sec. 1904.41(a)(1) and (2) and how the requirements of those
provisions interact with each other. These proposed provisions, like
many of the provisions within part 1904 are written in question-and-
answer format to help employers easily identify the information they
seek.
Proposed Sec. 1904.41(b)(1)(i) focuses on the issue of who must
submit their information to OSHA. Specifically, it would reiterate the
question posed in current Sec. 1904.41(b) (which asks whether every
employer has to routinely make an annual electronic submission of
information from part 1904 injury and illness recordkeeping forms to
OSHA), but update the answer to be consistent with proposed Sec.
1904.41(a)(1) and (2).
Proposed Sec. 1904.41(b)(1)(ii) would similarly clarify that an
establishment that has 100 or more employees, and is in an industry
included in both appendix A and appendix B, need only make one
submission of the OSHA Form 300A in order to fulfill the requirements
of both proposed Sec. 1904.41(a)(1) and (2). Proposed appendix B is a
subset of appendix A; i.e., all industries included in proposed
appendix B are also included in proposed appendix A, but there are some
industries included in proposed appendix A that are not included in
proposed appendix B.\10\
---------------------------------------------------------------------------
\10\ The differences between current appendix A and proposed
appendix A are (1) current appendix A has 2012 NAICS industry group
4521 (Department Stores), whereas proposed appendix A has 2017 NAICS
industry groups 4522 (Department Stores) and 4523 (General
Merchandise Stores, including Warehouse Clubs and Supercenters); (2)
current appendix A has 2012 NAICS industry group 4529 (Other General
Merchandise Stores), whereas in proposed appendix A, that industry
group is included in 2017 NAICS industry group 4523 (General
Merchandise Stores, including Warehouse Clubs and Supercenters); (3)
proposed appendix A does not include NAICS 7213, Rooming and
Boarding Houses, which is exempt from the requirement to routinely
keep injury and illness records and was included in current appendix
A in error.
---------------------------------------------------------------------------
OSHA welcomes public comment on proposed Sec. 1904.41(b)(1)(i) and
(ii), including whether these proposed provisions appropriately clarify
the proposed requirements for employers.
4. Section 1904.41(b)(9)
Proposed Sec. 1904.41(b)(9) would pose and answer a question
regarding which information would be required to be submitted under
proposed Sec. 1904.41(a). Specifically, proposed Sec. 1904.41(b)(9)
would ask the following question: If I have to submit information under
paragraph (a)(2) of this section, do I have to submit all of the
information from the recordkeeping forms?
The proposed answer would clarify that OSHA will not require
employers to submit the following case-specific information from the
OSHA Form 300 and Form 301:
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).
Collecting data from these fields would not add to OSHA's ability
to identify establishments with specific hazards or elevated injury and
illness rates. Therefore, OSHA proposes to exclude these fields from
the submittal requirements to minimize any potential release or
unauthorized access to any PII contained in the fields. Because the
data collection will not collect the information from these fields,
there will be no risk of public disclosure of the information from
these fields through the data collection.
[[Page 18546]]
OSHA welcomes public comment on Sec. 1904.41(b)(9), including
whether the specified fields should be excluded from data that would be
collected, and whether other data should be similarly excluded to
protect employee privacy or for other reasons. Any comments suggesting
exclusion of other fields or data from the proposed submission
requirements should also address whether the exclusion of that
particular field or data from collection would hinder OSHA's ability to
use the collection to protect employee safety and health.
5. Section 1904.41(b)(10)
Proposed Sec. 1904.41(b)(10) would address an issue related to how
establishments identify themselves in their electronic recordkeeping
submissions. As noted above, OSHA's recordkeeping regulation requires
employers to maintain and report their injury and illness data at the
establishment level. An establishment is defined as a single physical
location where business is conducted or where services or industrial
operations are performed (see 29 CFR 1904.46). Part 1904 injury and
illness records must be specific for each individual establishment.
Under the current requirements at 29 CFR 1904.41, a firm with more
than one establishment must submit establishment-specific 300A data for
each establishment that meets the size and industry reporting criteria.
OSHA's current data submission portal, the Injury Tracking Application
(ITA), contains two text fields used to identify an establishment,
Company Name and Establishment Name. The Establishment Name field is a
mandatory field; the user must make an entry in that field. In
addition, a user submitting information for more than one establishment
must provide a unique Establishment Name for each establishment. In
contrast, the Company Name field is an optional field; the user is not
required to make an entry in that field.
OSHA's review of five years of data electronically submitted under
part 1904.41 shows that many large firms with multiple establishments
use codes for the Establishment Name field in their submission. A
subset of these firms use codes for the Establishment Name field and do
not provide a company name in the Company Name field. For example, in
the 2020 submissions of 2019 Form 300A data, users submitted data for
more than 18,000 establishments with a code in the Establishment Name
field and no information in the Company Name field.
Unfortunately, the data are considerably less useful and more
difficult to work with when establishments have a code in the
Establishment Name field and no information in the Company Name field.
For example, it is not possible for a data user to search for data from
that company. In addition, OSHA is unable to determine whether or not a
particular establishment in that company met the reporting
requirements. Further, since OSHA now makes these data publicly
available, the use of codes and the lack of information in the Company
Name field may hamper stakeholders' and researchers' ability to use the
information.
To date, OSHA has made an effort to identify and assign company
names to these establishments. For example, sometimes OSHA is able to
use the EIN or the user's email address to identify the company
associated with the establishment. However, OSHA is not always able to
identify the company. In addition, the effort requires substantial
review for verification.
To address this problem, OSHA proposes to require employers who use
codes for the Establishment Name to include a legal name in the Company
Name field. This requirement would be spelled out in question-and-
answer format in proposed Sec. 1904.41(b)(10). The proposed provision
would provide: My company uses numbers or codes to identify our
establishments. May I use numbers or codes as the establishment name in
my submission? Yes, you may use numbers or codes as the establishment
name. However, the submission must include the legal company name,
either as part of the establishment name or separately as the company
name.
OSHA welcomes public comment on the proposed requirement to submit
the company name, including any comments on the utility of such a
requirement and how the company name should be included in an
establishment's submission.
6. Section 1904.41(c) Reporting Dates
Proposed Sec. 1904.41(c) would simplify the regulatory language in
current Sec. 1904.41(c)(1)-(2) concerning the dates by which
establishments must make their annual submissions. Current Sec.
1904.41(c)(1) included information for establishments on what to submit
to OSHA during the phase-in period of the 2016 final rule and the
deadline for submission. That information is no longer relevant and,
thus, OSHA proposes to remove it to streamline the section.
The substantive information already contained in current Sec.
1904.41(c)(1) would then be consolidated into proposed Sec.
1904.41(c). Like current Sec. 1904.41(c)(1), proposed Sec. 1904.41(c)
would require all covered establishments to make their electronic
submissions by March 2 of the year after the calendar year covered by
the form(s). Proposed Sec. 1904.41(c) would also provide an updated
example of that requirement, i.e., it explains that the forms covering
calendar year 2021 would be due by March 2, 2022.
OSHA welcomes public comment on these proposed revisions to Sec.
1904.41(c).
B. Questions
OSHA welcomes comments and data from the public regarding any
aspect of the proposed amendments to Sec. 1904.41 Electronic
Submission of Employer Identification Number (EIN) and Injury and
Illness Records to OSHA. OSHA is particularly interested in any
comments on these specific questions:
1. Is Total Case Rate (TCR) the most appropriate incidence rate to
use for proposed appendix B to subpart E, or would the Days Away
Restricted or Transferred (DART) rate be more appropriate?
2. Is 100 or more employees the appropriate size criterion for the
proposed requirement to electronically submit data from the OSHA Form
300, 301, and 300A? Would a different size criterion be more
appropriate?
3. Is it appropriate for OSHA to remove the requirement for
establishments with 250 or more employees, in industries not included
in appendix A, to submit the information from their OSHA Form 300A?
4. Are there electronic interface features that would help users
electronically submit part 1904 data, particularly for case data from
the OSHA Form 300 and Form 301 and for establishments that submit using
batch files? For example, would it be helpful for OSHA to provide a
forms package or software application that exports the required files
into a submission-ready format?
5. What features could OSHA provide to help establishments
determine which submission requirements apply to their establishment?
6. What additional guidance could OSHA add to the instructions for
electronic submission to remind employers not to include information
that reasonably identifies individuals directly in the information they
submit from the text-based fields on the OSHA Form 300 or Form 301?
7. What other agencies and organizations use automated de-
[[Page 18547]]
identification systems to remove information that reasonably identifies
individuals directly from text data before making the data available to
the general public? What levels of sensitivity for the automated system
for the identification and removal of information that reasonably
identifies individuals directly from text data do these agencies use?
8. What other open-source and/or proprietary software is available
to remove information that reasonably identifies individuals directly
from text data?
9. What methods or systems exist to identify and remove information
that reasonably identifies individuals directly from text data before
the data are submitted?
10. What criteria should OSHA use to determine whether the
sensitivity of automated systems to identify and remove information
that reasonably identifies individuals directly is sufficient for OSHA
to make the data available to the general public?
11. What processes could OSHA establish to remove inadvertently-
published information that reasonably identifies individuals directly
as soon as OSHA became aware of the information that reasonably
identifies individuals directly?
12. OSHA is proposing not to collect employee names under proposed
Sec. 1904.41(a)(2) and (b)(9), consistent with worker privacy concerns
expressed in public comments during previous rulemakings. However, BLS
uses the ``employee name'' field on the Form 300 and Form 301 in their
data collection for the SOII. Beginning in 2021, a data-sharing feature
has allowed some establishments that are required to submit Form 300A
information to both OSHA and BLS, under the current regulation, to use
their data submission to the OSHA ITA in their submission to the BLS
SOII. BLS anticipates an inability to use this data-sharing feature for
establishments required to submit under proposed Sec. 1904.41(a)(2),
unless OSHA requires these establishments to submit the ``employee
name'' field on the Form 300 and 301. Without the data-sharing feature,
establishments that submit data to OSHA under proposed Sec.
1904.41(a)(2), and that also submit data to the BLS SOII, would not be
able to use their OSHA data submission of case-specific data to prefill
their BLS SOII submission. What would be the advantages and
disadvantages, in terms of employer burden and worker privacy concerns
or otherwise, of requiring all establishments subject to proposed Sec.
1904.41(a)(2) to submit employee names, to support this data-sharing
feature for Form 300 and 301 submissions? (Please note that OSHA would
not intend to publish employee names.)
13. NAICS codes are reviewed and revised every five years to keep
the classification system current with changes in economic activities.
The 2022 NAICS became effective on January 1, 2022. Going forward, OSHA
intends to use the 2022 NAICS in the ITA for establishments that are
newly creating accounts. However, for establishments that already have
accounts in the ITA, the version of NAICS used is the 2012 NAICS. BLS
anticipates that establishments that already have accounts in the ITA,
are also subject to the SOII, and have 2022 NAICS codes that are
different from their 2012 NAICS codes, would be unable to use the data-
sharing feature (also discussed in question 13) to prefill their BLS
SOII submission with data already submitted through the OSHA ITA,
unless these establishments updated their accounts to revise their
industry classification from the 2012 NAICS to the 2022 NAICS. What are
the advantages and disadvantages of requiring establishments that
already have accounts in the ITA to update their accounts to the 2022
NAICS? How much time would an establishment require to determine
whether their 2022 NAICS is different from their 2012 NAICS? How much
time would an establishment require to edit their NAICS code in the ITA
to reflect any changes?
14. In addition to the automated methods for coding text-based data
discussed above, what additional automated methods exist to code text-
based data?
15. What are some ways that employers could use the collected data
to improve the safety and health of their workplaces?
16. What are some ways that employees could use the collected data
to improve the safety and health of their workplaces?
17. What are some ways that federal and state agencies could use
the collected data to improve workplace safety and health?
18. What are some ways that researchers could use the collected
data to improve workplace safety and health?
19. What are some ways that workplace safety consultants could use
the collected data to improve workplace safety and health?
20. What are some ways that members of the public and other
stakeholders, such as job-seekers, could use the collected data to
improve workplace safety and health?
21. Are there potential negative consequences to the collection of
this data that OSHA has not considered here?
22. The proposed regulatory text is structured as follows: Sec.
1904.41(a)(1) Annual electronic submission of information from OSHA
Form 300A Summary of Work-Related Injuries and Illnesses by
establishments with 20 or more employees in designated industries;
Sec. 1904.41(a)(2) Annual electronic submission of information from
OSHA Form 300 Log of Work-Related Injuries and Illnesses, OSHA Form 301
Injury and Illness Incident Report, and OSHA Form 300A Summary of Work-
Related Injuries and Illnesses by establishments with 100 or more
employees in designated industries. This is the structure used by the
2016 and 2019 rulemakings. An alternative structure would be as
follows: Sec. 1904.41(a)(1) Annual electronic submission of
information from OSHA Form 300A Summary of Work-Related Injuries and
Illnesses by establishments with 20 or more employees in designated
industries; Sec. 1904.41(a)(2) Annual electronic submission of
information from OSHA Form 300 Log of Work-Related Injuries and
Illnesses and OSHA Form 301 Injury and Illness Incident Report by
establishments with 100 or more employees in designated industries.
Which structure would result in better understanding of the
requirements by employers?
IV. Preliminary Economic Analysis and Regulatory Flexibility
Certification
A. Introduction
Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of the intended regulation and, if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, and public health and
safety effects; distributive impacts; and equity). Executive Order
13563 emphasized the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This rule is not an economically significant regulatory action under
section 3(f) of Executive Order 12866 and has been reviewed by the
Office of Information and Regulatory Affairs in the Office of
Management and Budget, as required by executive order.
OSHA estimates that this rule will have economic costs of $4.3
million per year, including $3.9 million per year to the private
sector, with average costs of $81 per year for affected establishments
[[Page 18548]]
with 100 or more employees, annualized over 10 years with a discount
rate of seven percent. The agency believes that the annual benefits,
while unquantified, significantly exceed the annual costs.
The proposed 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 an economically
significant regulatory action or major rule. This Preliminary Economic
Analysis (PEA) addresses the costs, benefits, and economic impacts of
the proposed rule.
OSHA is proposing to amend its recordkeeping regulations to revise
the requirements for the electronic submission of information from part
1904 injury and illness recordkeeping forms (Sec. 1904.41--Electronic
submission of injury and illness records to OSHA).
First, OSHA will require all establishments that have 20 or more
employees and are in certain designated industries to electronically
submit information from the OSHA Form 300A Annual Summary to OSHA or
OSHA's designee once a year (proposed Sec. 1904.41(a)(1) Annual
electronic submission of information from OSHA Form 300A Summary of
Work-Related Injuries and Illnesses by establishments with 20 or more
employees in designated industries).
The current requirement (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.) applies only to establishments
with fewer than 250 employees in industries designated by appendix A to
subpart E of part 1904. However, establishments with 250 or more
employees in these industries are also currently required to submit
this information under current Sec. 1904.41(a)(1) Annual electronic
submission of OSHA Form 300A Summary of Work-Related Injuries and
Illnesses by establishments with 250 or more employees. Note that OSHA
is proposing to revise appendix A to update the list of industries from
the 2012 to the 2017 NAICS.
Second, OSHA will require all establishments that have 100 or more
employees and are in certain designated industries to electronically
submit information from the OSHA Forms 300, 301, and 300A to OSHA or
OSHA's designee (proposed Sec. 1904.41(a)(2) Annual electronic
submission of information from OSHA Form 300 Log of Work-Related
Injuries and Illnesses, OSHA Form 301 Injury and Illness Incident
Report, and OSHA Form 300A Summary of Work-Related Injuries and
Illnesses by establishments with 100 or more employees in designated
industries). The industries are designated by proposed appendix B to
subpart E of part 1904.
As discussed above, the current Sec. 1904.41(a)(1) Annual
electronic submission of OSHA Form 300A Summary of Work-Related
Injuries and Illnesses by establishments with 250 or more employees
requires submission of the Form 300A from all establishments that have
250 or more employees and that are in industries routinely required to
keep part 1904 records. Under the proposed revisions, establishments
that have 250 or more employees would only have to routinely make
electronic submissions of part 1904 information if they are in an
industry in appendix A to subpart E (proposed Sec. 1904.41(a)(1)) or
in appendix B to subpart E (proposed Sec. 1904.41(a)(2)), which is a
subset of appendix A. The proposed rule will remove the requirement for
routine electronic submission of Form 300A information from
establishments with 250 or more employees in all other industries
(i.e., industries that are not included in appendix A or proposed
appendix B).
Under proposed Sec. 1904.41(b)(9), OSHA will not collect the
following case-specific information from the Form 300 and Form 301
submitted by establishments with 100 or more employees in designated
industries under proposed Sec. 1904.41(a)(2):
(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).
The OSHA Form 300A does not have any case-specific information.
In addition, under proposed Sec. 1904.41(b)(10), OSHA will require
establishments that are required to electronically report information
from their injury and illness records to OSHA under part 1904, to
include their company name as part of the submission.
Finally, OSHA proposes language in proposed Sec. 1904.41(b)(1)(i)
and (ii) to further clarify the requirements spelled out in proposed
Sec. 1904.41(a)(1) and (2) and current Sec. 1904.41(a)(3), and, in
proposed Sec. 1904.41(c), OSHA proposes updates to the reporting
deadlines.
B. Costs
1. Section 1904.41(a)(1) Annual Electronic Submission of Information
From OSHA Form 300A Summary of Work-Related Injuries and Illnesses by
Establishments With 20 or More Employees in Designated Industries
Currently, two groups of establishments are required to submit
information from the Form 300A annual summary, under two separate
requirements: Sec. 1904.41(a)(1) For all establishments with 250 or
more employees in all industries where establishments must routinely
keep part 1904 injury and illness records, and Sec. 1904.41(a)(2) for
establishments with 20 or more employees in the industries designated
in appendix A to subpart E.
In contrast, under the proposed revisions, only establishments with
20 or more employees in the industries designated in appendix A to
subpart E would be required to submit information from the Form 300A
annual summary. (As noted above, although proposed Sec. 1904.41(a)(2)
also requires employers in the industries designated in appendix B to
submit information from their Form 300A annual summary, those
industries are a subset of the industries listed in appendix A, so no
new submission would be required (see proposed Sec. 1904.41(b)(1)).
Thus, the net effect of this section is to reduce the number of
establishments that are required to submit information from the Form
300A annual summary. This section calculates the cost savings resulting
from the reduction in number of establishments that are required to
submit information from the Form 300A annual summary.
For this part of the proposed rule, OSHA obtained the estimated
cost of electronic hour (in dollars) of the person expected to perform
the task of electronic submission by multiplying the estimated total
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 estimated occupation-specific wage
rates from BLS 2020 Occupational Employment and Wage Statistics data
(BLS, May 2020), reporting a mean hourly wage of $37.55 for
Occupational Health and Safety Specialists (19-5011 in the 2018
Standard Occupational
[[Page 18549]]
Classification System (SOC); formerly 29-9011 in the 2010 SOC
System).\11\ Note that this is the same occupational classification
that OSHA used in the Final Economic Analysis (FEA) in the 2016 final
rule, based on public comments, as well as in the 2018 notice of
proposed rulemaking and 2019 final rule.
---------------------------------------------------------------------------
\11\ OMB issued revised SOC codes in 2017, changing SOC 29-9011
to SOC 19-5011. The 2010 SOC to the 2018 SOC crosswalk can be
downloaded here (accessed July 2021): https://www.bls.gov/soc/2018/crosswalks_used_by_agencies.htm.
---------------------------------------------------------------------------
Next, OSHA used June 2021 data from the BLS National Compensation
Survey, reporting a mean fringe benefit factor of 1.45 for civilian
workers in general.\12\ OSHA then multiplied the mean hourly wage
($37.55) by the mean fringe benefit factor (1.45) to obtain an
estimated total compensation (wages and benefits) for Occupational
Health and Safety Specialists of $54.58 per hour ([$37.55 per hour] x
1.45). OSHA next applied a 17% overhead rate to the base wage ([$37.55
per hour] x [0.17]), totaling $6.38.\13\ The $6.38 was added to the
total compensation ($54.58) yielding a fully loaded wage rate of $60.96
[$54.58 + $6.38].\14\
---------------------------------------------------------------------------
\12\ Fringe benefit factor calculated as [1/(1-0.312)], where
0.312 is the percent of the average total benefits of civilian
workers in all industries, as reported on Table 2 of the BLS's ECEC
report, June 2021: https://www.bls.gov/news.release/ecec.t02.htm.
\13\ 17 percent is OSHA's standard estimate for the overhead
cost incurred by the average employer.
\14\ See docket exhibit OSHA-2021-006-0002 for a spreadsheet
with the full calculations.
Table X.Y--Loaded Wage Used in Analysis, Including Overhead Cost \1\
------------------------------------------------------------------------
Occupational Loaded wage
Occupation description code rate
------------------------------------------------------------------------
Occupational Health and Safety \2\ 19-5011 $60.96
Specialists............................
------------------------------------------------------------------------
\1\ Source: OSHA, based on BLS (May 2020) and BLS (June 17, 2021).
\2\ OMB issued revised SOC codes in 2017, changing SOC 29-9011 to SOC 19-
5011. The 2010 SOC to the 2018 SOC crosswalk can be downloaded here
(accessed July 2021): https://www.bls.gov/soc/2018/crosswalks_used_by_agencies.htm.
For time required for the data submission, OSHA used the time
estimate of 10 minutes per establishment for the OSHA Form 300A from
the current information collection for Recordkeeping and Reporting
Occupational Injuries and Illnesses (29 CFR part 1904) (OMB Control
Number 1218-0176). OSHA then multiplied this time by the total
compensation of $60.96 per hour to obtain an estimated submission cost
per establishment of $10.16 [($60.96/hour) x (1 hour/60 minutes) x (10
minutes)].
Then OSHA multiplied this submission cost per establishment by the
estimated number of establishments that would no longer be required to
submit data, to obtain the total estimated cost savings of this part of
the proposed rule. In the 2020 data collection, there were 2,665
establishments with 250 or more employees, in an industry not in
appendix A, which submitted information from the 2019 OSHA Form 300A to
OSHA.
Thus, OSHA estimates the total annual cost savings of this part of
the proposed rule as $27,077 [(2,665 establishments no longer required
to electronically submit Form 300A information) x ($10.16 per
establishment for electronic submission of Form 300A information per
year)].
OSHA welcomes public comment on this estimate.
2. Section 1904.41(a)(2)--Annual Electronic Submission of Information
From OSHA Form 300 Log of Work-Related Injuries and Illnesses, OSHA
Form 301 Injury and Illness Incident Report, and OSHA Form 300A Summary
of Work-Related Injuries and Illnesses by Establishments With 100 or
More Employees in Designated Industries
This proposed section would require establishments that have 100 or
more employees and that are in the industries included in proposed
appendix B to submit the information from the OSHA Form 300 Log, OSHA
Form 301 incident report, and OSHA Form 300A annual summary. Note that
all of the establishments affected by this requirement are already
currently required to submit the information from their OSHA Form 300A.
Consequently, this section calculates only the additional costs for
these establishments of submitting the information from the OSHA Form
300 and 301.
Based in part on OSHA's previous experience, the agency estimates
that establishments will first need to take 10 minutes, on average, to
familiarize themselves with changes to the existing recordkeeping
requirements within this proposed rule.\15\ Thus, the agency calculates
a one-time cost for familiarization of $497,033 [(48,919
establishments) times (ten minutes/establishment) times (1 hour/60
minutes) times ($60.96/hour)]. Annualizing this rate over 10 years with
a seven percent discount rate produces an annual cost of $70,782 to the
private sector.
---------------------------------------------------------------------------
\15\ For example, OSHA added an estimate of 10 minutes of
familiarization time to its 2016 Recordkeeping regulation (81 FR
29680), in response to public comments.
---------------------------------------------------------------------------
In the 2020 data collection of 2019 OSHA Form 300A data,
establishments with 100 or more employees, in appendix B industries,
reported 718,316 cases to OSHA. For time required for data submission
of the OSHA Form 300 and 301, OSHA estimates 10 minutes per case, based
on the current Information Collection Request (ICR). Note that this may
overestimate costs, because while OSHA's estimates reflect manual entry
of the data for each case, in the agency's experience, roughly half of
the covered establishments submit data to the ITA by uploading a batch
file. In general, OSHA expects companies with many establishments/many
cases to have computer systems that can export their part 1904 injury
and illness recordkeeping data into an easily-uploaded file format.
OSHA seeks comment on this point.
OSHA estimates that half of the establishments submitting reports
(24,460) will submit 359,193 cases total (half of the overall total
number of 718,386 cases) via batch file--one batch file per
establishment.\16\ This yields an estimated cost of $248,517 [(24,460
establishments) times (10 minutes/establishment) times (1 hour/60
minutes) times ($60.96/hour)]. The average cost per establishment would
be $10.16 per establishment.
---------------------------------------------------------------------------
\16\ Review of the 2019 Form 300A data submitted through the ITA
in 2020 shows that 44% of establishments with 100 or more employees
in proposed appendix B submitted their data by uploading a batch
file. OSHA expects that this percentage would increase to 50% or
more for two reasons. First, the increase in the amount of data
required from these establishments would make the batch-file upload
a more efficient method of submission for more establishments.
Second, OSHA plans to make it easier for users to submit a batch
file by providing a set of forms that allow users to create the
export file for batch-file submission.
---------------------------------------------------------------------------
[[Page 18550]]
OSHA estimates that the other half of the establishments (24,460)
will manually submit each case individually. The mean number of cases
per establishment is 14.7 (718,386 total cases divided by 48,919 total
establishments). For manual submission, OSHA estimates a time of 10
minutes per case, or 147 minutes per establishment for the mean number
of cases. This produces a total cost for manual submission of
$3,649,520 [(48,919 establishments) times (10 minutes/case) times (14.7
cases) times (1 hour/60 minutes) times ($60.96/hour)], or $149 per
establishment [(14.7 cases) times (1 hour/60 minutes) times ($60.96/
hour)].
Summing the estimated batch-file ($248,517) and manual submission
($3,649,520) costs results in an estimated total cost of $3,898,037 to
submit the 718,316 records. Combined with the annualized cost of
$70,782 per year for familiarization estimated above (at seven
percent), the estimated total annual private-sector cost of this part
of the proposed rule is $3,968,819. To obtain the estimated average
cost of submission per establishment of $81.13, OSHA divided the total
estimated cost of submission ($3,968,819) by the estimated number of
establishments that would be required to submit data (48,919
establishments).
For reference, as explained above, 48,919 establishments with 100
or more employees, in proposed appendix B, submitted CY 2019 Form 300A
information about 718,386 cases to OSHA in 2020. The mean number of
cases per establishment is 14.7, and the median number of cases per
establishment is seven. However, some establishments will have no
recordable injuries in a given year, and their time burden will be zero
minutes. In contrast, establishments with many recordable injuries and
illnesses could have a time burden of multiple hours if they enter the
data manually. OSHA preliminarily believes that the establishments that
submit a single batch file are more likely to be among the
establishments with many cases, while the establishments that submit
cases manually are more likely to be among the establishments with only
a few cases. Thus, OSHA's estimate of half of establishments submitting
half of cases manually may result in an overestimate of the total and
per-establishment costs of this part of the proposed rule.
OSHA welcomes public comment on these estimates, including on time
necessary to prepare and submit a batch file and on establishments'
considerations for deciding to submit via batch file versus manual
submission.
3. Section 1904.41(b)(10)
This proposed section would require establishments to provide their
company name as part of their submission, either included in the
establishment name or separately as the company. For this part of the
proposed rule, based on submissions of information from the 2019 Form
300A to the ITA in 2020, OSHA estimates that 18,182 establishments do
not include the company name. The time necessary to include the company
name is included in the PEA estimate of 10 minutes per submission per
establishment. OSHA has also preliminarily determined that this
requirement will result in a small, unquantified benefit/cost-savings
for the government, due to no longer needing to spend time trying to
assign company names to establishments with coded names.
OSHA welcomes public comment on these preliminary
determinations.\17\
---------------------------------------------------------------------------
\17\ OSHA does not anticipate that the proposed revisions to
Sec. 1904.41(b)(1)(i), (b)(1)(ii), or (c) would have any
substantial costs associated with them.
---------------------------------------------------------------------------
4. Budget Costs to the Government for the Creation of the Reporting
System, Helpdesk Assistance, and Administration of the Electronic
Submission Program
In this preliminary economic analysis, OSHA is including an
estimate of the costs of the proposed new requirement, because these
costs represent a significant fraction of the total costs of the new
requirement. OSHA received estimates for the costs from the US
Department of Labor Office of the Chief Information Officer (DOL OCIO).
Based on the DOL OCIO estimates shown in the table below, OSHA is
estimating that modification of the reporting system hardware and
software infrastructure to accept submissions of Form 300 and 301 data
will have an initial one-time cost of $1.2 million.
Table V-1--Estimates of the Cost of Software Design and Development
------------------------------------------------------------------------
Lower cost Upper cost
range range
------------------------------------------------------------------------
Development............................. $516,417.00 $866,250.00
Cyber/ATO............................... 150,000.00 200,000.00
Cloud................................... 20,000.00 20,000.00
Migration............................... 100,000.00 150,000.00
-------------------------------
Total................................. 786,417.00 1,236,250.00
------------------------------------------------------------------------
Annualized over 10 years at a seven percent discount rate, $1.2
million is $170,853 per year, or $140,677 annualized over 10 years at
three percent. OSHA also estimates $201,128 as the annual cost of
additional transactions ($0.28 per case times 718,316 cases). Finally,
OSHA estimates that annual help desk support costs will increase by
$25,000. This estimate is based on the annual help desk support costs
under the current provisions.
5. Total Costs of the Rule
As shown in the table below, the total costs of the proposed rule
would be an estimated $4.3 million per year.
---------------------------------------------------------------------------
\18\ See docket exhibit OSHA-2021-006-0002 for the full
calculations.
Table V-2--Total Costs of the Proposed Rule \18\
------------------------------------------------------------------------
One-time costs
Cost element Annual costs \1\
------------------------------------------------------------------------
Annual electronic submission of OSHA ($27,077)
Form 300A annual summary by
establishments with 20 or more
employees in designated industries.....
Annual electronic submission of OSHA 3,968,819
Form 300 Log and OSHA Form 301 Incident
Report by establishments with 100 or
more employees in designated industries
Submission cost..................... 3,898,037
Cost of rule familiarization........ \2\ 70,782 $497,033
Total Private Sector Costs.............. 3,941,741
Total Government Costs.................. 397,001
[[Page 18551]]
Processing of annual submission of 201,148
cases..............................
Increased help desk support......... 25,000
Software design/development......... \3\ 170,853 1,200,000
-------------------------------
Total........................... \4\ 4,338,742 1,697,033
------------------------------------------------------------------------
\1\ The annualized one-time costs appear in the Annual Costs column. The
one-time costs are not additional costs.
\2\ If annualized over 10 years at 7%. $58,313 if annualized at 3%.
\3\ If annualized over 10 years at 7%. $140,677 if annualized at 3%.
\4\ Includes the one-time costs for rule familiarization and software
design and development, annualized over 10 years at 7%.
OSHA welcomes public comment on this analysis.
C. Benefits
The main purpose of the proposed rule is to prevent worker injuries
and illnesses through the collection and use of timely, establishment-
specific and case-specific injury and illness data. With the
information obtained through this proposed rule, employers, employees,
employee representatives, the government, and researchers will be
better able to identify and mitigate workplace hazards and thereby
prevent worker injuries and illnesses.
The proposed rule would 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 the proposed 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 2.7 million recordable non-fatal
injuries and illnesses at work,\19\ and this number is widely
recognized to be an undercount of the actual number of occupational
injuries and illnesses that occur annually.\20\ As described above, the
proposed rule would increase the agency's ability to focus resources on
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 leverage its resources for
workplace safety at the many thousands of establishments in which
workers are being injured or made ill but which OSHA does not have the
resources to inspect.
---------------------------------------------------------------------------
\19\ See ``EMPLOYER-REPORTED WORKPLACE INJURIES AND ILLNESSES--
2020'', news release from the Bureau of Labor Statistics/U.S.
Department of Labor, 10:00 a.m. (ET) Wednesday, November 3, 2021.
\20\ See e.g., Leigh JP, Du J, McCurdy SA. An estimate of the
U.S. government's undercount of nonfatal occupational injuries and
illnesses in agriculture. Ann Epidemiol. 2014 Apr;24(4):254-9. doi:
10.1016/j.annepidem.2014.01.006. Epub 2014 Jan 22. PMID: 24507952;
PMCID: PMC6597012; Spieler EA, Wagner GR. Counting matters:
Implications of undercounting in the BLS survey of occupational
injuries and illnesses. Am J Ind Med. 2014 Oct;57(10):1077-84. doi:
10.1002/ajim.22382. PMID: 25223513.
---------------------------------------------------------------------------
The proposed requirement would help OSHA encourage employers to
prevent worker injuries and illnesses by greatly expanding OSHA's
access to the establishment-specific, case-specific information
employers are already required to record under part 1904. The proposed
provisions requiring regular electronic submission of case-specific
injury and illness data would allow OSHA to obtain a much larger data
set of more timely, establishment-specific information about injuries
and illnesses in the workplace. This information would help OSHA use
its enforcement and compliance assistance resources more effectively by
enabling OSHA to identify the workplaces where workers are at greatest
risk. For example, OSHA could send hazard-specific educational
materials to employers who reported cases related to those hazards. In
addition, as discussed above, OSHA would 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 proposed collection would provide establishment-specific, case-
specific injury and illness data for analyses that are not currently
possible. For example, OSHA could analyze the case-specific data
collected under this system to answer the following questions:
1. Within a given industry, what are the characteristics of
recorded injuries or illnesses related to specific hazards (for
example, fall from ladder or heat)?
2. Within a given industry, what are the relationships between an
establishment's hazard-specific/case-specific 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. What are the changes in hazard-specific injuries or illnesses in
a particular industry over time?
Furthermore, access to establishment-specific, case-specific injury
and illness data will enable OSHA to improve its evaluations of 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 would be able to
compare the incidence and characteristics of heat-related illnesses
before and after promulgation of a regulation on heat injury and
illness prevention in outdoor and indoor work settings, thereby
allowing the agency to evaluate the implementation and effectiveness of
the regulation.
OSHA's collection and publication of establishment-specific, case-
specific injury and illness data would also encourage employers with
100 or more employees to prevent injuries and illnesses among their
employees, because
Employers would prefer to support their reputations as
good places to work at or do business with;
Employers in a given high-hazard industry would be able to
compare their
[[Page 18552]]
workplace's experience with a particular hazard with the experiences at
other workplaces, allowing them to set hazard-abatement goals
benchmarked to comparable establishments in their industry.
Employees in establishments with 100 or more employees
would be able to access the case-specific injury and illness
information without having to request the information from their
employers; this, in turn, would allow the employees in these
establishments to better identify hazards within their own workplace
and to take actions to have the hazards abated.
Prospective employees would have access to data about
specific hazards of particular concern, such as lead or trench
collapses, allowing them to make a more informed decision about a
future place of employment; this, in turn, would encourage employers to
abate these hazards because potential employees, especially the ones
whose skills are most in demand, might be reluctant to work at
establishments that did not abate these hazards.
Potential investors and the public would also have access
to information about an establishment's experience with specific
hazards, allowing them to preferentially invest in or patronize
businesses that have successfully abated the hazards common in a given
industry; this, in turn, would encourage employers to abate the hazards
in order to attract investors and/or customers.
Finally, disclosure of and access to establishment-specific, case-
specific injury and illness data have the potential to improve research
on the distribution and determinants of workplace hazards, and
therefore to prevent workplace injuries and illnesses from occurring by
abating those hazards. Using data collected under the proposed 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 proposed rule could
also allow researchers to identify patterns of hazard-specific injuries
or illnesses that are masked by the aggregation of injury/illness data
in the SOII.
The availability of case-specific, establishment-specific injury
and illness data would also be of great use to county, state and
territorial health departments and other public institutions charged
with injury and illness surveillance. In particular, aggregation of
case-specific, establishment-specific injury and illness reports and
rates from similar establishments would 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 proposed rule to identify establishments whose injury/
illness records suggest that the establishments would benefit from
their services to abate particular hazards or sets of hazards. In
general, online access to this large database of establishment-
specific, case-specific injury and illness information would support
the development of innovative ideas for improving workplace safety and
health, and would better the ability of everyone with a stake in
workplace safety and health to participate in improving occupational
safety and health.
Furthermore, because the data would be publicly available,
industries, trade associations, unions, and other groups representing
employers and workers would be able to evaluate the effectiveness of
privately-initiated hazard-abatement initiatives that affect groups of
establishments. In addition, linking these data with data residing in
other administrative data sets would enable researchers to conduct
rigorous studies that will increase our understanding of injury/illness
causation, prevention, and consequences.
Public access to these data would enable developers of software
applications to develop tools that facilitate use of these data by
employers, workers, researchers, consumers and others. Examples of this
in other areas include apps for finding and comparing nursing homes,
creating thematic maps of data from the American Community Survey, and
obtaining real-time information on stream levels or bus/subway
arrivals.
The database resulting from this proposed rule would enable the
collection and publication of case-specific, establishment-specific
data without having to work under the restrictions imposed by the
Confidential Information Protection and Statistical Efficiency Act
(CIPSEA) to protect information acquired for statistical purposes under
a pledge of confidentiality. It would also provide data on injuries and
illnesses 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 or cases involving job transfer or
restricted work activity.
D. Economic Feasibility
OSHA preliminarily concludes that the proposed rule will be
economically feasible. For establishments with 100 or more employees in
the industries designated in proposed appendix B, the average
additional cost of submitting information from the OSHA Form 300 and
301 will be $81 per year. These costs will not affect the economic
viability of these establishments.
E. Alternatives
1. Appendix A (industries where establishments with 20 or more
employees are required to submit information from the OSHA Form 300A)
is based on 2011-2013 injury rates from the SOII. OSHA could update
appendix A to reflect the 2017-2019 injury rates from the SOII. This
would result in the addition of one industry (NAICS 4831 (Deep sea,
coastal, and great lakes water transportation)) and the removal of 13
industries, as follows:
4421 Furniture Stores
4452 Specialty Food Stores
4853 Taxi and Limousine Service
4855 Charter Bus Industry
5152 Cable and Other Subscription Programming
5311 Lessors of Real Estate
5321 Automotive Equipment Rental and Leasing
5323 General Rental Centers
6242 Community Food and Housing, and Emergency and Other
Relief Services
7132 Gambling Industries
7212 RV (Recreational Vehicle) Parks and Recreational Camps
7223 Special Food Services
8113 Commercial and Industrial Machinery and Equipment (except
Automotive and Electronic) Repair and Maintenance.
OSHA is proposing not to modify appendix A because it took several
years for the regulated community to understand which industries were
and were not required to submit information. Misunderstandings result
[[Page 18553]]
in both underreporting and overreporting. OSHA preliminarily believes
that changing the requirements now would result in confusion for the
regulated community. However, OSHA welcomes public comment on this
alternative.
2. OSHA could regularly update the list of designated industries in
proposed appendix B (industries where establishments with 100 or more
employees must submit information from the Form 300 and 301 as well as
the 300A)--for example, every 6 years, to align with the PRA approval
periods. In the 2016 final rule, OSHA agreed with the commenters who
stated that the list of designated industries [appendix A, in this
case] should not be updated each year. OSHA believed that moving
industries in and out of the appendix each year would be confusing.
OSHA also believed that keeping the same industries in the appendix
each year would increase the stability of the system and reduce
uncertainty for employers. Accordingly, OSHA did not, as part of that
rulemaking, include a requirement to annually or periodically adjust
the list of designated industries to reflect more recent BLS injury and
illness data. OSHA committed that any such revision to the list of
industries in the future would require additional notice and comment
rulemaking. However, OSHA again welcomes public comment on this
alternative for this rulemaking.
F. Regulatory Flexibility Certification
The part of the proposed rule requiring submission of Form 300 and
301 information from establishments with 100 or more employees in
designated industries will affect some small entities, according to the
definition of small entity 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 many
firms with 100 or more employees that meet SBA small-business
definitions. In other sectors, such as manufacturing, many SBA-defined
small businesses will be subject to this rule. Thus, this part of the
proposed rule will affect a small percentage of all small entities.
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
proposed rules on small businesses suggest that if costs are greater
than 1 percent of revenues or 5 percent of profits for the average
firm, then OSHA conducts an additional assessment. To meet this level
of significance at an estimated annual average cost of $81.13 per
affected establishment per year, annual revenues for an establishment
with 100 or more employees would have to be less than $8,113, and
annual profits would have to be less than $1,623. According to the 2017
Economic Census,\21\ there are no impacted industries that have
revenues less than $8,113. Furthermore, based on the 2013 Corporation
Source Book,\22\ there are no impacted industries earning less than
$1,623.
---------------------------------------------------------------------------
\21\ The revenue numbers used to determine cost-to-revenue
ratios were obtained from the 2017 Economic Census. This is the most
current information available from this source, which OSHA considers
to be the best available source of revenue data for U.S. businesses.
OSHA adjusted these figures to 2019 dollars using the Bureau of
Economic Analysis's GDP deflator, which is OSHA's standard source
for inflation and deflation analysis.
\22\ The profit screening test for feasibility (i.e., the cost-
to-profit ratio) was calculated as ETS costs divided by profits.
Profits were calculated as profit rates multiplied by revenues. The
before-tax profit rates that OSHA used were estimated using
corporate balance sheet data from the 2013 Corporation Source Book
(Internal Revenue Service, 2013). The IRS discontinued the
publication of these data after 2013, and therefore the most current
years available are 2000-2013. The most recent version of the Source
Book represents the best available evidence for these data on profit
rates.
---------------------------------------------------------------------------
As a result of these considerations, per section 605 of the
Regulatory Flexibility Act, OSHA certifies that the rule will not, if
promulgated, have a significant economic impact on a substantial number
of small entities. Thus, OSHA has not prepared an initial regulatory
flexibility analysis. OSHA is interested in comments on this
certification.
V. OMB Review Under the Paperwork Reduction Act of 1995
A. Overview
OSHA is proposing to amend its occupational injury and illness
recordkeeping regulation, 29 CFR 1904.41, which contains information
collections that are subject to review by OMB under the Paperwork
Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq., and OMB
regulations at 5 CFR part 1320. The agency is not revising the existing
ICR, 1218-0176, but rather requesting a new number for provisions being
added or modified. The PRA defines ``collection of information'' to
mean ``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).
Under the PRA, a Federal agency cannot conduct or sponsor a collection
of information unless OMB approves it and the agency displays a
currently valid OMB control number. 44 U.S.C. 3507. Also,
notwithstanding any other provision of law, no employer shall be
subject to penalty for failing to comply with a collection of
information if the collection of information does not display a
currently valid OMB control number. 44 U.S.C. 3512.
B. Solicitation of Comments
OSHA prepared and submitted an ICR to OMB proposing to revise
certain information collection requirements currently contained in the
paperwork package in accordance with 44 U.S.C. 3507(d). The agency
solicits comments on the revision to the information collection
requirements and the reduction in estimated burden hours associated
with these requirements, including comments on the following items:
Whether the collection of information are necessary for
the proper performance of the agency's functions, including whether the
information is useful;
The accuracy of OSHA's estimate of the burden (time and
cost) of the collection of information, including the validity of the
methodology and assumptions used;
The quality, utility, and clarity of the information
collected; and
Ways to minimize the compliance burden on employers, for
example, by using automated or other technological techniques for
collecting and transmitting information.
C. Proposed Information Collection Requirements
As required by 5 CFR 1320.5(a)(1)(iv) and 1320.8(d)(2), the
following paragraphs provide information about this ICR.
1. Title: Improve Tracking Workplace Injury and Illness.
2. Description of the ICR: This proposed rule would revise the
currently approved Recordkeeping and Reporting Occupational Injuries
and Illnesses Information Collection and change the existing
information collection requirements currently approved by OMB.
3. Brief Summary of the Information Collection Requirements. Under
``Information Requirements on Recordkeeping and Reporting Occupational
Injuries and Illnesses,'' OMB Control Number 1218-0176, OSHA currently
has OMB approval to conduct an information collection that requires
employers to maintain information on work-related fatalities, injuries,
and illnesses, and to report this
[[Page 18554]]
information to OSHA. The proposed rule would make three changes to
Sec. 1904.41.
First, OSHA will no longer require electronic submission of Form
300A information from establishments with 250 or more employees in
industries that are routinely required to keep part 1904 injury and
illness records but are not in appendix A.
Second, OSHA will newly require all establishments that have 100 or
more employees and are in certain designated industries to
electronically submit information from the OSHA Form 300 and 301 to
OSHA or OSHA's designee. This is in addition to the current requirement
for these establishments to electronically submit information from the
OSHA Form 300A. Each establishment subject to this provision will
require time to familiarize themselves with the reporting website.
Third, OSHA will require establishments that are required to
electronically report information from their injury and illness records
to OSHA under part 1904, to include their company name as part of the
submission. No additional paperwork burden is associated with the
provision.
In addition, Docket exhibit OSHA-2021-006-0004 shows an example of
an expanded interface to collect case-specific data. Screen shots of
this interface can also be viewed on OSHA's website at https://www.osha.gov/recordkeeping/proposed_data_form.html. OSHA invites public
comment on these user interfaces, including suggestions on any
interface features that would minimize the burden of reporting the
required data.
4. OMB Control Number: 1218-0NEW.
5. Affected Public: Business or other for-profit.
6. Number of Respondents: 48,919.
7. Frequency of Responses: Annually.
8. Number of Responses: 429,876.
9. Average Time per Response: Time per response varies.
10. Estimated total burden hours: 71,646.
11. Estimated costs (capital-operation and maintenance): $0.
D. Submitting Comments
Members of the public may comment on the paperwork requirements in
this proposed regulation by sending their comments to the Office of
Information and Regulatory Affairs, Attn: OMB Desk Officer for the
Department of Labor, OSHA Regulation Identifier Number (RIN) (1218-
AD40), by email: [email protected]. Please limit the comments
to only the proposed changed provisions of the recordkeeping rule
(i.e., proposed Sec. 1904.41).
OSHA encourages commenters also to submit their comments on these
paperwork requirements to the rulemaking docket (OSHA-2021-0006), along
with their comments on other parts of the proposed regulation. For
instructions on submitting these comments to the docket, see the
sections of this Federal Register document titled DATES and ADDRESSES.
Comments submitted in response to this document are public records;
therefore, OSHA cautions commenters about submitting personal
information, such as Social Security numbers and dates of birth.
E. Docket and Inquiries
To access the docket to read or download comments and other
materials related to this paperwork determination, including the
complete Information Collection Request (ICR), use the procedures
described under the section of this document titled ADDRESSES. You may
obtain an electronic copy of the complete ICR by going to the website
at https://www.reginfo.gov/public/do/PRAMain, then select ``Department
of Labor'' under ``Currently Under Review'', then click on ``submit''.
This will show all of the Department's ICRs currently under review,
including the ICRs submitted for proposed rulemakings. To make
inquiries, or to request other information, contact Ms. Seleda
Perryman, Directorate of Standards and Guidance, Occupational Safety
and Health Administration, U.S. Department of Labor; telephone (202)
693-4131; email [email protected].
VI. Unfunded Mandates
For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1501 et seq.), as well as Executive Order 13132 (64 FR 43255 (Aug. 4,
1999)), this proposed 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.
VII. Federalism
OSHA reviewed this proposed rule in accordance with Executive Order
13132 (64 FR 43255 (Aug. 4, 1999)), regarding federalism. Because this
rulemaking involves a ``regulation'' issued under sections 8 and 24 of
the OSH Act (29 U.S.C. 657, 673), and not an ``occupational safety and
health standard'' issued under section 6 of the OSH Act (29 U.S.C.
655), the rule will not preempt state law (see 29 U.S.C. 667(a)). The
effect of the proposed rule on states is discussed in section VIII.
State Plans.
VIII. State Plans
For the purposes of section 18 of the OSH Act (29 U.S.C. 667) and
the requirements of 29 CFR 1904.37, 1902.3(j), 1902.7, and 1956.10(i),
within 6 months after publication of the final OSHA rule, State Plans
must promulgate occupational injury and illness recording and reporting
requirements that are substantially identical to those in 29 CFR part
1904 ``Recording and Reporting Occupational Injuries and Illnesses.''
State Plans must have the same requirements as Federal OSHA for
determining which injuries and illnesses are recordable and how they
are recorded (29 CFR 1904.37(b)(1)). All other part 1904 injury and
illness recording and reporting requirements (for example, industry
exemptions, reporting of fatalities and hospitalizations, record
retention, or employee involvement) that are promulgated by State Plans
may be more stringent than, or supplemental to, the Federal
requirements, but, because of the unique nature of the national
recordkeeping program, states must consult with OSHA and obtain
approval of such additional or more stringent reporting and recording
requirements to ensure that they will not interfere with uniform
reporting objectives (29 CFR 1904.37(b)(2)).
There are 28 State Plans. 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, Maine, New Jersey, New York, and the Virgin Islands have
OSHA-approved State Plans that apply to state and local government
employees only.
IX. Consultation and Coordination With Indian Tribal Governments
OSHA reviewed this proposed rule in accordance with Executive Order
13175 (65 FR 67249) and determined that it would not have ``tribal
implications'' as defined in that order. The proposed rule would 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.
[[Page 18555]]
X. Public Participation
Because this rulemaking involves a regulation rather than a
standard, it is governed by the notice and comment requirements in the
Administrative Procedure Act (APA) (5 U.S.C. 553) rather than section 6
of the OSH Act (29 U.S.C. 655) and 29 CFR part 1911 (both of which only
apply to ``promulgating, modifying or revoking occupational safety or
health standards'' (29 CFR 1911.1)). Therefore, the OSH Act requirement
to hold an informal public hearing (29 U.S.C. 655(b)(3)) on a proposed
rule, when requested, does not apply to this rulemaking.
Section 553(b)(1) of the APA requires the agency to issue a
``statement of the time, place, and nature of public rulemaking
proceedings'' (5 U.S.C. 553(b)(1)). The APA does not specify a minimum
period for submitting comments.
OSHA invites comment on all aspects of the proposed rule. OSHA
specifically encourages comment on the questions raised in the issues
and questions subsection. Interested persons must submit comments by
May 31, 2022. The agency will carefully review and evaluate all
comments, information, and data, as well as all other information in
the rulemaking record, to determine how to proceed. When submitting
comments, persons must follow the procedures specified above in the
sections titled DATES and ADDRESSES.
Authority and Signature
This document was prepared under the direction of Douglas L.
Parker, Assistant Secretary of Labor for Occupational Safety and
Health, U.S. Department of Labor, 200 Constitution Avenue NW,
Washington, DC 20210. It is issued under sections 8 and 24 of the
Occupational Safety and Health Act (29 U.S.C. 657, 673), section 553 of
the Administrative Procedure Act (5 U.S.C. 553), and Secretary of
Labor's Order No. 08-2020 (85 FR 58393, Sept. 18, 2020).
List of Subjects in 29 CFR Part 1904
Health statistics, Occupational safety and health, Reporting and
recordkeeping requirements.
Signed at Washington, DC, on March 23, 2022.
Douglas L. Parker,
Assistant Secretary of Labor for Occupational Safety and Health.
Amendments to Standards
For the reasons stated in the preamble, OSHA proposes to amend part
1904 of chapter XVII of title 29 as follows:
PART 1904--[AMENDED]
Subpart E--Reporting Fatality, Injury and Illness Information to
the Government
0
1. Revise the authority citation for part 1904, subpart E, to read as
follows:
Authority: 29 U.S.C. 657, 673, 5 U.S.C. 553, and Secretary of
Labor's Order No. 08-2020 (85 FR 58393, Sept. 18, 2020) or 1-2012
(77 FR 3912, Jan. 25, 2012), as applicable.
0
2. Amend Sec. 1904.41 as follows:
0
a. Revise paragraphs (a)(1) and (2) and (b)(1);
0
b. Add paragraphs (b)(9) and (10); and
0
c. Revise paragraph (c).
The revisions and additions read as follows:
Sec. 1904.41 Electronic submission of Employer Identification Number
(EIN) and injury and illness records to OSHA.
* * * * *
(a) * * *
(1) Annual electronic submission of information from OSHA Form 300A
Summary of Work-Related Injuries and Illnesses by establishments with
20 or more employees in designated industries. If your establishment
had 20 or more 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.
(2) Annual electronic submission of information from OSHA Form 300
Log of Work-Related Injuries and Illnesses, OSHA Form 301 Injury and
Illness Incident Report, and OSHA Form 300A Summary of Work-Related
Injuries and Illnesses by establishments with 100 or more employees in
designated industries. If your establishment had 100 or more employees
at any time during the previous calendar year, and your establishment
is classified in an industry listed in appendix B to subpart E of this
part, then you must electronically submit information from OSHA Forms
300, 301, and 300A to OSHA or OSHA's designee. You must submit the
information once a year, no later than the date listed in paragraph (c)
of this section of the year after the calendar year covered by the
forms.
* * * * *
(b) * * *
(1) Annual electronic submission of information from part 1904
injury and illness recordkeeping forms to OSHA--(i) Does every employer
have to routinely make an annual electronic submission of information
from part 1904 injury and illness recordkeeping forms to OSHA? No, only
two categories of employers must routinely submit this information. The
first category is establishments that had 20 or more employees at any
time during the previous calendar year, and are classified in an
industry listed in appendix A to this subpart; establishments in this
category must submit the required information from Form 300A to OSHA
once a year. The second category is establishments that had 100 or more
employees at any time during the previous calendar year, and are
classified in an industry listed in appendix B to this subpart;
establishments in this category must submit the required information
from Forms 300, 301, and 300A 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 (for example, 2022 for the 2021 form(s)). If your
establishment is not in either of these two categories, then you must
submit the information to OSHA only if OSHA notifies you to do so for
an individual data collection.
(ii) My establishment had 100 or more employees last year and is in
an industry that is listed in both appendix A and appendix B. Do I have
to submit the information from the Form 300A twice? No, you only have
to submit the information from the Form 300A once.
* * * * *
(9) If I have to submit information under paragraph (a)(2) of this
section, do I have to submit all of the information from the
recordkeeping forms? No, you are required to submit all of the
information from the forms except the following:
(i) Log of Work-Related Injuries and Illnesses (OSHA Form 300):
Employee name (column B).
(ii) Injury and Illness Incident Report (OSHA Form 301): Employee
name (field 1), employee address (field 2), name of physician or other
health care professional (field 6), facility name and address if
treatment was given away from the worksite (field 7).
(10) My company uses numbers or codes to identify our
establishments. May I use numbers or codes as the establishment name in
my submission? Yes, you may use numbers or codes as the establishment
name. However, the submission must include the company name, either as
part of the establishment
[[Page 18556]]
name or separately as the company name.
(c) Reporting dates. Establishments that are required to submit
under paragraph (a)(1) or (2) of this section must submit all of the
required information by March 2 of the year after the calendar year
covered by the form(s) (for example, by March 2, 2022, for the forms
covering 2021).
0
3. Revise appendix A to subpart E to read as follows:
Appendix A to Subpart E of Part 1904--Designated Industries for Sec.
1904.41(a)(1) Annual Electronic Submission of Information From OSHA
Form 300A Summary of Work-Related Injuries and Illnesses by
Establishments With 20 or More Employees in Designated Industries
------------------------------------------------------------------------
NAICS Industry
------------------------------------------------------------------------
11.......................... Agriculture, forestry, fishing and
hunting.
22.......................... Utilities.
23.......................... Construction.
31-33....................... Manufacturing.
42.......................... Wholesale trade.
4413........................ Automotive Parts, Accessories, and Tire
Stores.
4421........................ Furniture Stores.
4422........................ Home Furnishings Stores.
4441........................ Building Material and Supplies Dealers.
4442........................ Lawn and Garden Equipment and Supplies
Stores.
4451........................ Grocery Stores.
4452........................ Specialty Food Stores.
4522........................ Department Stores.
4523........................ General Merchandise Stores, including
Warehouse Clubs and Supercenters.
4533........................ Used Merchandise Stores.
4542........................ Vending Machine Operators.
4543........................ Direct Selling Establishments.
4811........................ Scheduled Air Transportation.
4841........................ General Freight Trucking.
4842........................ Specialized Freight Trucking.
4851........................ Urban Transit Systems.
4852........................ Interurban and Rural Bus Transportation.
4853........................ Taxi and Limousine Service.
4854........................ School and Employee Bus Transportation.
4855........................ Charter Bus Industry.
4859........................ Other Transit and Ground Passenger
Transportation.
4871........................ Scenic and Sightseeing Transportation,
Land.
4881........................ Support Activities for Air Transportation.
4882........................ Support Activities for Rail
Transportation.
4883........................ Support Activities for Water
Transportation.
4884........................ Support Activities for Road
Transportation.
4889........................ Other Support Activities for
Transportation.
4911........................ Postal Service.
4921........................ Couriers and Express Delivery Services.
4922........................ Local Messengers and Local Delivery.
4931........................ Warehousing and Storage.
5152........................ Cable and Other Subscription Programming.
5311........................ Lessors of Real Estate.
5321........................ Automotive Equipment Rental and Leasing.
5322........................ Consumer Goods Rental.
5323........................ General Rental Centers.
5617........................ Services to Buildings and Dwellings.
5621........................ Waste Collection.
5622........................ Waste Treatment and Disposal.
5629........................ Remediation and Other Waste Management
Services.
6219........................ Other Ambulatory Health Care Services.
6221........................ General Medical and Surgical Hospitals.
6222........................ Psychiatric and Substance Abuse Hospitals.
6223........................ Specialty (except Psychiatric and
Substance Abuse) Hospitals.
6231........................ Nursing Care Facilities (Skilled Nursing
Facilities).
6232........................ Residential Intellectual and Developmental
Disability, Mental Health, and Substance
Abuse Facilities.
6233........................ Continuing Care Retirement Communities and
Assisted Living Facilities for the
Elderly.
6239........................ Other Residential Care Facilities.
6242........................ Community Food and Housing, and Emergency
and Other Relief Services.
6243........................ Vocational Rehabilitation Services.
7111........................ Performing Arts Companies.
7112........................ Spectator Sports.
7121........................ Museums, Historical Sites, and Similar
Institutions.
7131........................ Amusement Parks and Arcades.
7132........................ Gambling Industries.
7211........................ Traveler Accommodation.
7212........................ RV (Recreational Vehicle) Parks and
Recreational Camps.
7223........................ Special Food Services.
8113........................ Commercial and Industrial Machinery and
Equipment (except Automotive and
Electronic) Repair and Maintenance.
[[Page 18557]]
8123........................ Drycleaning and Laundry Services.
------------------------------------------------------------------------
0
4. Add appendix B to subpart E to read as follows:
Appendix B to Subpart E of Part 1904--Designated Industries for Sec.
1904.41(a)(2) Annual Electronic Submission of Information From OSHA
Form 300 Log of Work-Related Injuries and Illnesses, OSHA Form 301
Injury and Illness Incident Report, and OSHA Form 300A Summary of Work-
Related Injuries and Illnesses by Establishments With 100 or More
Employees in Designated Industries
------------------------------------------------------------------------
NAICS Industry
------------------------------------------------------------------------
1111........................ Oilseed and grain farming.
1112........................ Vegetable and melon farming.
1113........................ Fruit and tree nut farming.
1114........................ Greenhouse, nursery, and floriculture
production.
1119........................ Other crop farming.
1121........................ Cattle ranching and farming.
1122........................ Hog and pig farming.
1123........................ Poultry and egg production.
1129........................ Other animal production.
1141........................ Fishing.
1151........................ Support activities for crop production.
1152........................ Support activities for animal production.
1153........................ Support activities for forestry.
2213........................ Water, sewage and other systems.
2381........................ Foundation, structure, and building
exterior contractors.
3111........................ Animal food manufacturing.
3113........................ Sugar and confectionery product
manufacturing.
3114........................ Fruit and vegetable preserving and
specialty food manufacturing.
3115........................ Dairy product manufacturing.
3116........................ Animal slaughtering and processing.
3117........................ Seafood product preparation and packaging.
3118........................ Bakeries and tortilla manufacturing.
3119........................ Other food manufacturing.
3121........................ Beverage manufacturing.
3161........................ Leather and hide tanning and finishing.
3162........................ Footwear manufacturing.
3211........................ Sawmills and wood preservation.
3212........................ Veneer, plywood, and engineered wood
product manufacturing.
3219........................ Other wood product manufacturing.
3261........................ Plastics product manufacturing.
3262........................ Rubber product manufacturing.
3271........................ Clay product and refractory manufacturing.
3272........................ Glass and glass product manufacturing.
3273........................ Cement and concrete product manufacturing.
3279........................ Other nonmetallic mineral product
manufacturing.
3312........................ Steel product manufacturing from purchased
steel.
3314........................ Nonferrous metal production and
processing.
3315........................ Foundries.
3321........................ Forging and stamping.
3323........................ Architectural and structural metals
manufacturing.
3324........................ Boiler, tank, and shipping container
manufacturing.
3325........................ Hardware manufacturing.
3326........................ Spring and wire product manufacturing.
3327........................ Machine shops; turned product; and screw,
nut, and bolt manufacturing.
3328........................ Coating, engraving, heat treating, and
allied activities.
3331........................ Agriculture, construction, and mining
machinery manufacturing.
3335........................ Metalworking machinery manufacturing.
3361........................ Motor vehicle manufacturing.
3362........................ Motor vehicle body and trailer
manufacturing.
3363........................ Motor vehicle parts manufacturing.
3366........................ Ship and boat building.
3371........................ Household and institutional furniture and
kitchen cabinet manufacturing.
3372........................ Office furniture manufacturing.
4231........................ Motor vehicle and motor vehicle parts and
supplies merchant wholesalers.
4233........................ Lumber and other construction materials
merchant wholesalers.
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4235........................ Metal and mineral merchant wholesalers.
4244........................ Grocery and related product merchant
wholesalers.
4248........................ Beer, wine, and distilled alcoholic
beverage merchant wholesalers.
4413........................ Automotive parts, accessories, and tire
stores.
4422........................ Home furnishings stores.
4441........................ Building material and supplies dealers.
4442........................ Lawn and garden equipment and supplies
stores.
4451........................ Grocery stores.
4522........................ Department stores.
4523........................ General merchandise stores, including
warehouse clubs and supercenters.
4533........................ Used merchandise stores.
4543........................ Direct selling establishments.
4811........................ Scheduled air transportation.
4841........................ General freight trucking.
4842........................ Specialized freight trucking.
4851........................ Urban transit systems.
4852........................ Interurban and rural bus transportation.
4854........................ School and employee bus transportation.
4859........................ Other transit and ground passenger
transportation.
4871........................ Scenic and sightseeing transportation,
land.
4881........................ Support activities for air transportation.
4883........................ Support activities for water
transportation.
4911........................ Postal Service.
4921........................ Couriers and express delivery services.
4931........................ Warehousing and storage.
5322........................ Consumer goods rental.
5621........................ Waste collection.
5622........................ Waste treatment and disposal.
6219........................ Other ambulatory health care services.
6221........................ General medical and surgical hospitals.
6222........................ Psychiatric and substance abuse hospitals.
6223........................ Specialty hospitals.
6231........................ Nursing care facilities.
6232........................ Residential intellectual and developmental
disability, mental health, and substance
abuse facilities.
6233........................ Continuing care retirement communities and
assisted living facilities for the
elderly.
6239........................ Other residential care facilities.
6243........................ Vocational rehabilitation services.
7111........................ Performing arts companies.
7112........................ Spectator sports.
7131........................ Amusement parks and arcades.
7211........................ Traveler accommodation.
7212........................ RV parks and recreational camps.
7223........................ Special food services.
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[FR Doc. 2022-06546 Filed 3-28-22; 8:45 am]
BILLING CODE 4510-26-P
