Improve Tracking of Workplace Injuries and Illnesses, 47254-47349 [2023-15091]
Download as PDF
47254
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
DEPARTMENT OF LABOR
Occupational Safety and Health
Administration
29 CFR Part 1904
[Docket No. OSHA–2021–0006]
RIN 1218–AD40
Improve Tracking of Workplace
Injuries and Illnesses
Occupational Safety and Health
Administration (OSHA), Labor.
ACTION: Final rule.
AGENCY:
OSHA is amending its
occupational injury and illness
recordkeeping regulation to require
certain employers to electronically
submit injury and illness information to
OSHA that employers are already
required to keep under the
recordkeeping regulation. Specifically,
OSHA is amending its regulation to
require establishments with 100 or more
employees in certain designated
industries to electronically submit
information from their OSHA Forms 300
and 301 to OSHA once a year. OSHA
will not collect employee names or
addresses, names of health care
professionals, or names and addresses of
facilities where treatment was provided
if treatment was provided away from the
worksite from the Forms 300 and 301.
Establishments with 20 to 249
employees in certain industries will
continue to be required to electronically
submit information from their OSHA
Form 300A annual summary to OSHA
once a year. All establishments with 250
or more employees that are required to
keep records under OSHA’s injury and
illness regulation will also continue to
be required to electronically submit
information from their Form 300A to
OSHA on an annual basis. OSHA is also
updating the NAICS codes used in
appendix A, which designates the
industries required to submit their Form
300A data, and is adding appendix B,
which designates the industries
required to submit Form 300 and Form
301 data. In addition, establishments
will be required to include their
company name when making electronic
submissions to OSHA. OSHA intends to
post some of the data from the annual
electronic submissions on a public
website after identifying and removing
information that could reasonably be
expected to identify individuals
directly, such as individuals’ names and
contact information.
DATES: This final rule becomes effective
on January 1, 2024.
ddrumheller on DSK120RN23PROD with RULES2
SUMMARY:
VerDate Sep<11>2014
21:51 Jul 20, 2023
Jkt 259001
Collections of information: There are
collections of information contained in
this final rule (see Section V, OMB
Review Under the Paperwork Reduction
Act of 1995). Notwithstanding the
general date of applicability for the
requirements contained in the final rule,
affected parties do not have to comply
with the collections of information until
the Department of Labor publishes a
separate document in the Federal
Register announcing that the Office of
Management and Budget has approved
them under the Paperwork Reduction
Act.
ADDRESSES: Electronic copies of this
Federal Register document and news
releases are available at OSHA’s website
at https://www.osha.gov.
FOR FURTHER INFORMATION CONTACT:
For press inquiries: Frank Meilinger,
Director, Office of Communications,
Occupational Safety and Health
Administration, U.S. Department of
Labor; telephone (202) 693–1999; email:
meilinger.francis2@dol.gov.
For general information and technical
inquiries: Lee Anne Jillings, Director,
Directorate of Technical Support and
Emergency Management, U.S.
Department of Labor; telephone (202)
693–2300; email: Jillings.LeeAnne@
dol.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. References and Exhibits
B. Introduction
C. Regulatory History
D. Related Litigation
E. Injury and Illness Data Collection
II. Legal Authority
A. Statutory Authority To Promulgate the
Rule
B. Fourth Amendment Issues
C. Publication of Collected Data and FOIA
D. Reasoned Explanation for Policy Change
III. Summary and Explanation of the Final
Rule
A. Section 1904.41(a)(1)(i) and (ii)—
Annual Electronic Submission of
Information From OSHA Form 300A
Summary of Work-Related Injuries and
Illnesses
1. Section 1904.41(a)(1)(i)—Establishments
With 20–249 employees That Are
Required To Submit Information From
OSHA Form 300A
2. Section 1904.41(a)(1)(ii)—
Establishments With 250 or More
Employees That Are Required To Submit
Information From OSHA Form 300A
3. Restructuring of Previous Section
1904.41(a)(1) and (2) Into Final Section
1904.41(a)(1)(i) and (ii)
4. Updating Appendix A
B. Section 1904.41(a)(2)—Annual
Electronic Submission of OSHA Form
300 Log of Work-Related Injuries and
Illnesses and OSHA Form 301 Injury and
PO 00000
Frm 00002
Fmt 4701
Sfmt 4700
Illness Incident Report by
Establishments With 100 or More
Employees in Designated Industries)
1. Covered Establishments and Industries
a. The Size Threshold for Submitting
Information From OSHA Forms 300 and
301
b. The Criteria for Determining the
Industries in Appendix B to Subpart E
c. Cut-Off Rates for Determining the
Industries in Appendix B to Subpart E
d. Using the Most Current Data To
Determine Designated Industries
e. Industries Included in Final Appendix B
After Applying the Final Criteria, Cut-Off
Rates, and Data Sources
2. Information To Be Submitted
3. Publication of Electronic Data
4. Benefits of Collecting and Publishing
Data From Forms 300 and 301
a. General Benefits of Collecting and
Publishing Data From Forms 300 and
301
b. Beneficial Ways That OSHA Can Use
The Data From Forms 300 and 301
c. Beneficial Ways That Employers Can
Use the Data From Forms 300 and 301
d. Beneficial Ways That Employees Can
Use the Data From Forms 300 and 301
e. Beneficial Ways That Federal and State
Agencies Can Use the Data From Forms
300 and 301
f. Beneficial Ways That Researchers Can
Use the Data From Forms 300 and 301
g. Beneficial Ways That Workplace Safety
Consultants Can Use the Data From
Forms 300 and 301
h. Beneficial Ways That Members of the
Public and Other Interested Parties Can
Use the Data From Forms 300 and 301
5. The Freedom of Information Act (FOIA)
6. Safeguarding Individual Privacy (Direct
Identification)
7. Indirect Identification of Individuals
8. The Experience of Other Federal
Agencies
9. Risk of Cyber Attack
10. The Health Information Portability and
Accountability Act (HIPAA)
11. The Americans With Disabilities Act
(ADA)
12. The Privacy Act
13. Privacy Impact Assessment
14. Other Issues Related to OSHA’s
Proposal To Require the Submission of
and Then Publish Certain Data From
Establishments’ Forms 300 and 301
a. Miscellaneous Comments
b. The Effect of the Rule on the Accuracy
of Injury and Illness Records
c. Collecting and Processing the Data From
Forms 300 and 301 Will Help OSHA Use
Its Resources More Effectively
d. OSHA’s Capacity To Collect and Process
the Data From Forms 300 and 301
e. Data Submission
f. Tools To Make the Collected Data From
Forms 300 and 301 More Useful
C. Section 1904.41(b)(1)
D. Section 1904.41(b)(9)
1. Collecting Employee Names
2. Excluding Other Specified Fields
E. Section 1904.41(b)(10)
F. Section 1904.41(c)
G. Additional Comments Which Concern
More Than One Section of the Proposal
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
1. General Comments
2. Misunderstandings About Scope
3. Diversion of Resources
4. Lagging v. Leading Indicators
5. Employer Shaming
6. Impact on Employee Recruiting
7. Legal Disputes
8. No Fault Recordkeeping
9. Confidentiality of Business Locations
10. Employer-Vaccine-Mandate-Related
Concerns
11. Constitutional Issues and OSHA’s
Authority To Publish Information From
Forms 300 and 301
a. The First Amendment
b. The Fourth Amendment
c. The Fifth Amendment
d. OSHA’s Authority To Publish
Information Submitted Under This Rule
12. Administrative Issues
a. Public Hearing
b. The Advisory Committee on
Construction Safety and Health (ACCSH)
c. Reasonable Alternatives Considered
IV. Final Economic Analysis and Regulatory
Flexibility Certification
A. Introduction
B. Changes From the Preliminary
Economic Analysis (PEA) (Reflecting
Changes in the Final Rule From the
Proposal)
1. Continued Submission of OSHA 300A
Annual Summaries by Establishments
With 250 or More Employees
2. Additional Appendix B Industries
3. Updated Data
C. Cost
1. Wages
a. Wage Estimates in the PEA
b. Comments on OSHA’s Wage Estimates
c. Wage Estimates in the FEA
2. Estimated Case Counts
3. Familiarization
4. Record Submission
5. Custom Forms
6. Batch-File Submissions
7. Software/System Upgrades Needed
8. Other Costs
a. Harm to Reputation
b. Additional Time Needed To Review for
PII
c. Company Name
d. Training Costs
D. Effect on Prices
E. Budget Costs to the Government
F. Total Cost
G. Benefits
H. Economic Feasibility
I. Regulatory Flexibility Certification
V. OMB Review Under the Paperwork
Reduction Act of 1995
A. Overview
B. Summary of Information Collection
Requirements
VI. Unfunded Mandates
VII. Federalism
VIII. State Plans
IX. National Environmental Policy Act
X. Consultation and Coordination With
Indian Tribal Governments Authority
and Signature
I. Background
A. References and Exhibits
In this preamble, OSHA references
documents in Docket No. OSHA–2021–
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
0006, the docket for this rulemaking.
The docket is available at https://
www.regulations.gov, the Federal
eRulemaking Portal.
When citing exhibits in the docket,
OSHA includes the term ‘‘Document
ID’’ followed by the last four digits of
the Document ID number. For example,
OSHA’s preliminary economic analysis
is in the docket as OSHA–2021–0006–
0002. Citations also include the
attachment number or other attachment
identifier, if applicable, page numbers
(designated ‘‘p.’’ or ‘‘Tr.’’ for pages from
a hearing transcript), and in a limited
number of cases a footnote number
(designated ‘‘Fn.’’). In a citation that
contains two or more Document ID
numbers, the Document ID numbers are
separated by semi-colons (e.g.,
‘‘Document ID 1231, Attachment 1, p. 6;
1383, Attachment 1, p. 2’’).
All materials in the docket, including
public comments, supporting materials,
meeting transcripts, and other
documents, are listed on https://
www.regulations.gov. However, some
exhibits (e.g., copyrighted material) are
not available to read or download from
that web page. All materials in the
docket, including copyrighted material,
are available for inspection through the
OSHA Docket Office. Contact the OSHA
Docket Office at (202) 693–2350 (TTY
(877) 889–5627) for assistance in
locating docket submissions.
B. Introduction
OSHA’s regulation at 29 CFR part
1904 requires employers with more than
10 employees in most industries to keep
records of occupational injuries and
illnesses at their establishments.
Employers covered by the regulation
must use three forms, or their
equivalent, to record recordable
employee injuries and illnesses:
• OSHA Form 300, the Log of WorkRelated Injuries and Illnesses. This form
includes information about the
employee’s name, job title, date of the
injury or illness, where the injury or
illness occurred, description of the
injury or illness (e.g., body part
affected), and the outcome of the injury
or illness (e.g., death, days away from
work, job transfer or restriction).
• OSHA Form 301, the Injury and
Illness Incident Report. This form
includes the employee’s name and
address, date of birth, date hired, and
gender and the name and address of the
health care professional that treated the
employee, as well as more detailed
information about where and how the
injury or illness occurred.
• OSHA Form 300A, the Annual
Summary of Work-Related Injuries and
Illnesses. This form includes general
PO 00000
Frm 00003
Fmt 4701
Sfmt 4700
47255
information about an employer’s
workplace, such as the average number
of employees and total number of hours
worked by all employees during the
calendar year. It does not contain
information about individual
employees. Employers are required to
prepare this form at the end of each year
and post the form in a visible location
in the workplace from February 1 to
April 30 of the year following the year
covered by the form.
Section 1904.41 of the previous
recordkeeping regulation also required
two groups of establishments to
electronically submit injury and illness
data to OSHA once a year.
• § 1904.41(a)(1) required
establishments with 250 or more
employees in industries that are
required to routinely keep OSHA injury
and illness records to electronically
submit information from the Form 300A
summary to OSHA once a year.
• § 1904.41(a)(2) required
establishments with 20–249 employees
in certain designated industries (those
listed on appendix A of part 1904
subpart E) to electronically submit
information from their Form 300A
summary to OSHA once a year.
Also, § 1904.41(a)(4) required each
establishment that must electronically
submit injury and illness information to
OSHA to provide their Employer
Identification Number (EIN) in their
submittal.
Under this final rule, three groups of
establishments will be required to
electronically submit information from
their injury and illness recordkeeping
forms to OSHA once a year.
• Establishments with 20–249
employees in certain designated
industries (listed in appendix A to
subpart E) will continue to be required
to electronically submit information
from their Form 300A annual summary
to OSHA once a year (final
§ 1904.41(a)(1)(i)). OSHA is also
updating the NAICS codes used for
appendix A to subpart E.
• Establishments with 250 or more
employees in industries that are
required to routinely keep OSHA injury
and illness records will continue to be
required to electronically submit
information from the Form 300A to
OSHA once a year (final
§ 1904.41(a)(1)(ii)).
• Establishments with 100 or more
employees in certain designated
industries (listed in new appendix B to
subpart E) will be newly required to
electronically submit information from
their OSHA Forms 300 and 301 to
OSHA once a year (final
§ 1904.41(a)(2)). The industries listed in
new appendix B were chosen based on
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
47256
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
three measures of industry
hazardousness.
OSHA will also require
establishments to include their
company name when making electronic
submissions to OSHA (final
§ 1904.41(b)(10)).
Additionally, although publication is
not part of the regulatory requirements
of this final rule, OSHA intends to post
the collected establishment-specific,
case-specific injury and illness
information online. As discussed in
more detail below, the agency will seek
to minimize the possibility of the
release of information that could
reasonably be expected to identify
individuals directly, such as employee
name, contact information, and name of
physician or health care professional.
OSHA will minimize the possibility of
releasing such information in multiple
ways, including by limiting the worker
information collected, designing the
collection system to provide extra
protections for some of the information
that employers will be required to
submit, withholding certain fields from
public disclosure, and using automated
software to identify and remove
information that could reasonably be
expected to identify individuals
directly.
OSHA has determined that the data
collection will assist the agency in its
statutory mission to assure safe and
healthful working conditions for
working people (see 29 U.S.C. 651(b)).
In addition, OSHA has determined that
the expanded public access to
establishment-specific, case-specific
injury and illness data will allow
employers, employees, potential
employees, employee representatives,
customers, potential customers,
researchers, and the general public to
make more informed decisions about
workplace safety and health at a given
establishment. OSHA believes that this
accessibility will ultimately result in the
reduction of occupational injuries and
illnesses.
OSHA estimates that this rule will
have economic costs of $7.7 million per
year, including $7.1 million per year to
the private sector, with average costs of
$136 per year for affected
establishments with 100 or more
employees, annualized over 10 years
with a discount rate of seven percent.
The agency believes that the annual
benefits, while unquantified,
significantly exceed the annual costs.
C. Regulatory History
As discussed in section II, Legal
Authority, the Occupational Safety and
Health Act (OSH Act or Act) requires
employers to keep records of employee
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
illnesses and injuries as prescribed by
OSHA through regulation. OSHA’s
regulations on recording and reporting
occupational injuries and illnesses (29
CFR part 1904) were first issued in 1971
(36 FR 12612 (July 2, 1971)). These
regulations require the recording of
work-related injuries and illnesses that
involve death, loss of consciousness,
days away from work, restricted work or
transfer to another job, medical
treatment beyond first aid, or diagnosis
of a significant injury or illness by a
physician or other licensed health care
professional (29 CFR 1904.7).
On July 29, 1977, OSHA amended
these regulations to partially exempt
businesses having ten or fewer
employees during the previous calendar
year from the requirement to record
occupational injuries and illnesses (42
FR 38568). Then, on December 28, 1982,
OSHA amended the regulations again to
partially exempt establishments in
certain lower-hazard industries from the
requirement to record occupational
injuries and illnesses (47 FR 57699).1
OSHA also amended the recordkeeping
regulations in 1994 (Reporting of
Fatality or Multiple Hospitalization
Incidents, 59 FR 15594) and 1997
(Reporting Occupational Injury and
Illness Data to OSHA, 62 FR 6434).
Under the version of § 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
1 All employers covered by the OSH Act are
covered by OSHA’s recordkeeping and reporting
requirements found in 29 CFR part 1904. However,
there are several exceptions to OSHA’s
recordkeeping requirements that apply unless
OSHA or the Bureau of Labor Statistics (BLS)
informs them in writing that they must keep records
(29 CFR 1904.1(a)(1), 1904.2(a)(1)). For example,
employers with ten or fewer employees, as well as
businesses with establishments in certain
industries, are partially exempt from keeping OSHA
injury and illness records (29 CFR 1904.1, 1904.2).
The provision excepts most employers covered by
the OSH Act. All employers covered by the OSH
Act, including those that are partially exempt from
keeping injury and illness records, are still required
to report work-related fatalities, in-patient
hospitalizations, amputations, and losses of an eye
to OSHA within specified timeframes under 29 CFR
1904.39.
PO 00000
Frm 00004
Fmt 4701
Sfmt 4700
occupational injuries and illnesses (29
CFR parts 1904 and 1952), along with
the forms employers use to record those
injuries and illnesses (66 FR 5916). The
final rule also updated the list of
industries that are partially exempt from
recording occupational injuries and
illnesses.
On September 18, 2014, OSHA again
amended the regulations to require
employers to report work-related
fatalities and severe injuries—in-patient
hospitalizations, amputations, and
losses of an eye—to OSHA and to allow
electronic reporting of these events (79
FR 56130). The final rule also revised
the list of industries that are partially
exempt from recording occupational
injuries and illnesses.
On May 12, 2016, OSHA amended the
regulations on recording and reporting
occupational injuries and illnesses to
require employers, on an annual basis,
to submit electronically to OSHA injury
and illness information that employers
are already required to keep under part
1904 (81 FR 29624). Under the 2016
revisions, establishments with 250 or
more employees that are routinely
required to keep records were required
to electronically submit information
from their OSHA Forms 300, 300A, and
301 to OSHA or OSHA’s designee once
a year, and establishments with 20 to
249 employees in certain designated
industries were required to
electronically submit information from
their OSHA annual summary (Form
300A) to OSHA or OSHA’s designee
once a year. In addition, that final rule
required employers, upon notification,
to electronically submit information
from part 1904 recordkeeping forms to
OSHA or OSHA’s designee. These
provisions became effective on January
1, 2017, with an initial submission
deadline of July 1, 2017, for 2016 Form
300A data. That submission deadline
was subsequently extended to December
15, 2017 (82 FR 55761). The initial
submission deadline for electronic
submission of information from OSHA
Forms 300 and 301 was July 1, 2018.
Because of a subsequent rulemaking,
OSHA never received the data
submissions from Forms 300 and 301
that the 2016 final rule anticipated.
On January 25, 2019, OSHA issued a
final rule that amended the
recordkeeping regulations to remove the
requirement for establishments with 250
or more employees that are routinely
required to keep records to
electronically submit information from
their OSHA Forms 300 and 301 to
OSHA or OSHA’s designee once a year.
As a result, those establishments were
required to electronically submit only
information from their OSHA 300A
E:\FR\FM\21JYR2.SGM
21JYR2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
ddrumheller on DSK120RN23PROD with RULES2
annual summary. The 2019 final rule
also added a requirement for covered
employers to submit their Employer
Identification Number (EIN)
electronically along with their injury
and illness data submission (83 FR
36494, 84 FR 380, 395–97).
On March 30, 2022, OSHA issued a
notice of proposed rulemaking (NPRM
or proposed rule) proposing to amend
the recordkeeping regulations to require
establishments with 100 or more
employees in certain designated
industries to electronically submit
information from their OSHA Forms 300
and 301 to OSHA once a year (87 FR
18528). In addition, OSHA proposed to
continue the requirement for
establishments with 20 or more
employees in certain designated
industries to electronically submit data
from their OSHA Form 300A annual
summary to OSHA once a year. OSHA
also proposed to update the appendices
containing the designated industries
covered by the electronic submission
requirement and to remove the
requirement for establishments with 250
or more employees not in a designated
industry to electronically submit
information from their Form 300A to
OSHA on an annual basis. Further,
OSHA expressed its intention to post
the data from the proposed electronic
submission requirement on a public
website after identifying and removing
information that could reasonably be
expected to identify individuals
directly, such as individuals’ names and
contact information. Finally, OSHA
proposed to require establishments to
include their company name when
making electronic submissions to
OSHA.
Comments on the NPRM were
initially due on May 30, 2022 (87
FR18528). However, in response to
requests for an extension, OSHA
published a second Federal Register
notice on May 25, 2022, extending the
comment period until June 30, 2022 (87
FR 31793). By the end of the extended
comment period, OSHA had received 87
comments on the proposed rule. The
issues raised in those comments are
addressed herein.
D. Related Litigation
Both the 2016 and 2019 OSHA final
rules that addressed the electronic
submission of injury and illness data
were challenged in court. In Texo ABC/
AGC, Inc., et al. v. Acosta, No. 3:16–cv–
01998–L (N.D. Tex. filed July 8, 2016),
and NAHB, et al. v. Acosta, No. 5:17–
cv–00009–PRW (W.D. Okla. filed Jan. 4,
2017), industry groups challenged
OSHA’s 2016 final rule that required
establishments with 250 or more
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
employees to electronically submit data
from their OSHA Forms 300 and 301 to
OSHA (as well as other requirements
not relevant to this rulemaking). The
complaints alleged that the publication
of establishment-specific injury and
illness data would lead to misuse of
confidential and proprietary
information by the public and special
interest groups. The complaints also
alleged that publication of the data
exceeds OSHA’s authority under the
OSH Act and is unconstitutional under
the First Amendment to the U.S.
Constitution. After OSHA published a
notice in the Federal Register on June
28, 2017, noting that the agency planned
to publish a proposal that would
reconsider the requirements of the 2016
final rule (82 FR 29261), Texo was
administratively closed. The plaintiffs
in NAHB dropped their claims relating
to the 300 and 301 data submission
requirement after the 2019 final rule
was published (and moved forward with
their other claims, which are still
pending in the Western District of
Oklahoma).
In Public Citizen Health Research
Group et al. v. Pizzella, No. 1:19–cv–
00166 (D.D.C. filed Jan. 25, 2019) and
State of New Jersey et al. v. Pizzella, No.
1:19–cv–00621 (D.D.C. filed Mar. 6,
2019), a group of public health
organizations and a group of States filed
separate lawsuits challenging OSHA’s
2019 final rule rescinding the
requirement for certain employers to
submit the data from OSHA Forms 300
and 301 to OSHA electronically each
year. The U.S. District Court for the
District of Columbia resolved the two
cases in a consolidated opinion and
held that rescinding the provision was
within the agency’s discretion (Public
Citizen Health Research Group et al. v.
Pizzella, No. 1:19–cv–00166–TJK
(D.D.C. Jan. 11, 2021)). The court first
dismissed Public Citizen’s complaint for
lack of subject-matter jurisdiction. Next,
turning to the merits of the States’
complaint, the court held that OSHA’s
rescission of the Form 300 and Form
301 data-submission requirements was
within the agency’s discretion based on
its rebalancing of the ‘‘uncertain
benefits’’ of collecting the 300 and 301
data against the diversion of OSHA’s
resources from other efforts and
potential privacy harms to employees.
The court also rejected the plaintiffs’
assertion that OSHA’s reasons for the
2019 final rule were internally
inconsistent. Both groups of plaintiffs
have appealed to the U.S. Court of
Appeals for the District of Columbia
Circuit (Nos. 21–5016, 21–5018).
Additionally, since 2020, the
Department of Labor (DOL) has received
PO 00000
Frm 00005
Fmt 4701
Sfmt 4700
47257
multiple adverse decisions regarding the
release of electronically submitted 300A
data under the Freedom of Information
Act (FOIA). In each of the cases, OSHA
argued that electronically submitted
300A injury and illness data are exempt
from disclosure pursuant to the
confidentiality exemption in FOIA
Exemption 4. Two courts, one in the
U.S. District Court for the Northern
District of California and another in the
U.S. District Court for the District of
Columbia, disagreed with OSHA’s
position (see Center for Investigative
Reporting, et al., v. Department of
Labor, No. 4:18–cv–02414–DMR, 2020
WL 2995209 (N.D. Cal. June 4, 2020);
Public Citizen Foundation v. United
States Department of Labor, et al., No.
1:18–cv–00117 (D.D.C. June 23, 2020)).
In addition, on July 6, 2020, the
Department received an adverse ruling
from a magistrate judge in the Northern
District of California in a FOIA case
involving Amazon fulfillment centers.
In that case, plaintiffs sought the release
of individual 300A forms, which
consisted of summaries of Amazon’s
work-related injuries and illnesses and
which were provided to OSHA
compliance officers during specific
OSHA inspections of Amazon
fulfillment centers in Ohio and Illinois
(see Center for Investigative Reporting,
et al., v. Department of Labor, No. 3:19–
cv–05603–SK, 2020 WL 3639646 (N.D.
Cal. July 6, 2020)).
In holding that FOIA Exemption 4
was inapplicable, the courts rejected
OSHA’s position that electronically
submitted 300A injury and illness data
are covered under the confidentiality
exemption in FOIA Exemption 4. The
decisions noted that the 300A form is
posted in the workplace for three
months and that there is no expectation
that the employer must keep these data
confidential or private. As a result,
OSHA provided the requested 300A
data to the plaintiffs, and posted
collected 300A data on its public
website beginning in August 2020. The
data are available at https://
www.osha.gov/Establishment-SpecificInjury-and-Illness-Data and include the
submissions for calendar years 2016,
2017, 2018, 2019, 2020, and 2021.
E. Injury and Illness Data Collection
Currently, two U.S. Department of
Labor data collections request and
compile information from the OSHA
injury and illness records that certain
employers are required to keep under 29
CFR part 1904: the annual collection
conducted by OSHA under 29 CFR
1904.41 (Electronic Submission of
Employer Identification Number (EIN)
and Injury and Illness Records to
E:\FR\FM\21JYR2.SGM
21JYR2
47258
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
OSHA), and the annual Survey of
Occupational Injuries and Illnesses
(SOII) conducted by the Bureau of Labor
Statistics (BLS) under 29 CFR 1904.42.
This final rule amends the regulation at
§ 1904.41. It does not change the SOII or
the authority for the SOII set forth in
§ 1904.42.
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). Each
year, BLS collects data from Forms 300,
301, and 300A from a scientifically
selected probability sample of about
230,000 establishments, covering nearly
all private-sector industries, as well as
State and local government. Title 44
U.S.C. 3572 prohibits BLS from
releasing establishment-specific and
case-specific data to the general public
or to OSHA. However, BLS has
modified its collection procedures to be
able to automatically import certain
Form 300A submissions from the OSHA
ITA into the BLS SOII Internet Data
Collection Facility (IDCF). As discussed
below, the Department is continuing to
evaluate opportunities to further reduce
duplicative reporting.
ddrumheller on DSK120RN23PROD with RULES2
II. Legal Authority
A. Statutory Authority To Promulgate
the Rule
OSHA is issuing this final rule
pursuant to authority expressly granted
by several provisions of the OSH Act
that address the recording and reporting
of occupational injuries and illnesses.
Section 2(b)(12) of the OSH Act states
that one of the purposes of the OSH Act
is to ‘‘assure so far as possible . . . safe
and healthful working conditions . . .
by providing for appropriate reporting
procedures . . . which . . . will help
achieve the objectives of th[e] Act and
accurately describe the nature of the
occupational safety and health
problem’’ (29 U.S.C. 651(b)(12)). Section
8(c)(1) requires each employer to ‘‘make,
keep and preserve, and make available
to the Secretary [of Labor] . . . , such
records regarding his activities relating
to this Act as the Secretary . . . may
prescribe by regulation as necessary or
appropriate for the enforcement of this
Act or for developing information
regarding the causes and prevention of
occupational accidents and illnesses’’
(29 U.S.C. 657(c)(1)). Section 8(c)(2)
directs the Secretary to prescribe
regulations ‘‘requiring employers to
maintain accurate records of, and to
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
make periodic reports on, work-related
deaths, injuries and illnesses other than
minor injuries requiring only first aid
treatment and which do not involve
medical treatment, loss of
consciousness, restriction of work or
motion, or transfer to another job’’ (29
U.S.C. 657(c)(2)).
Section 8(g)(1) authorizes the
Secretary ‘‘to compile, analyze, and
publish, whether in summary or
detailed form, all reports or information
obtained under this section’’ (29 U.S.C.
657(g)(1)). Section 8(g)(2) of the Act
broadly empowers the Secretary to
‘‘prescribe such rules and regulations as
he may deem necessary to carry out
[his] responsibilities under th[e] Act’’
(29 U.S.C. 657(g)(2)).
Section 24 of the OSH Act (29 U.S.C.
673) contains a similar grant of
authority. This section requires the
Secretary to ‘‘develop and maintain an
effective program of collection,
compilation, and analysis of
occupational safety and health
statistics’’ and ‘‘compile accurate
statistics on work injuries and illnesses
which shall include all disabling,
serious, or significant injuries and
illnesses . . .’’ (29 U.S.C. 673(a)).
Section 24 also requires employers to
‘‘file such reports with the Secretary as
he shall prescribe by regulation’’ (29
U.S.C. 673(e)). These reports are to be
based on ‘‘the records made and kept
pursuant to section 8(c) of this Act’’ (29
U.S.C. 673(e)).
Section 20 of the Act (29 U.S.C. 669)
contains additional implicit authority
for collecting and disseminating data on
occupational injuries and illnesses.
Section 20(a) empowers the Secretaries
of Labor and Health and Human
Services to consult on research
concerning occupational safety and
health problems, and provides for the
use of such research, ‘‘and other
information available,’’ in developing
criteria on toxic materials and harmful
physical agents. Section 20(d) states that
‘‘[i]nformation obtained by the Secretary
. . . under this section shall be
disseminated by the Secretary to
employers and employees and
organizations thereof’’ (29 U.S.C.
669(d)).
The OSH Act authorizes the Secretary
of Labor to issue two types of
occupational safety and health rules:
standards and regulations. Standards,
which are authorized by Section 6 of the
Act (29 U.S.C. 655), aim to correct
particular identified workplace hazards,
while regulations further the general
enforcement and detection purposes of
the OSH Act (see Workplace Health &
Safety Council v. Reich, 56 F.3d 1465,
1468 (D.C. Cir. 1995) (citing La. Chem.
PO 00000
Frm 00006
Fmt 4701
Sfmt 4700
Ass’n v. Bingham, 657 F.2d 777, 781–82
(5th Cir. 1981)); United Steelworkers of
Am. v. Auchter, 763 F.2d 728, 735 (3d
Cir. 1985)). Recordkeeping requirements
promulgated under the Act are
characterized as regulations (see 29
U.S.C. 657 (using the term ‘‘regulations’’
to describe recordkeeping
requirements); see also Workplace
Health & Safety Council v. Reich, 56
F.3d 1465, 1468 (D.C. Cir. 1995) (citing
La. Chem. Ass’n. v. Bingham, 657 F.2d
777, 781–82 (5th Cir. 1981); United
Steelworkers of Am. v. Auchter, 763
F.2d 728, 735 (3d Cir. 1985)).
B. Fourth Amendment Issues
This final rule does not infringe on
employers’ Fourth Amendment rights.
The Fourth Amendment protects against
searches and seizures of private
property by the government, but only
when a person has a ‘‘legitimate
expectation of privacy’’ in the object of
the search or seizure (Rakas v. Illinois,
439 U.S. 128, 143–47 (1978)). There is
little or no expectation of privacy in
records that are required by the
government to be kept and made
available (Free Speech Coalition v.
Holder, 729 F. Supp. 2d 691, 747, 750–
51 (E.D. Pa. 2010) (citing cases); United
States v. Miller, 425 U.S. 435, 442–43
(1976); cf. Shapiro v. United States, 335
U.S. 1, 33 (1948) (no Fifth Amendment
interest in required records)).
Accordingly, the Fourth Circuit held, in
McLaughlin v. A.B. Chance, that an
employer has little expectation of
privacy in the records of occupational
injuries and illnesses kept pursuant to
OSHA regulations and must disclose
them to the agency on request (842 F.2d
724, 727–28 (4th Cir. 1988)).
Even if there were an expectation of
privacy, the Fourth Amendment
prohibits only unreasonable intrusions
by the government (Kentucky v. King,
131 S. Ct. 1849, 1856 (2011)). The
information submission requirements in
this final rule are reasonable. The
requirements serve a substantial
government interest in the health and
safety of workers, have a strong
statutory basis, and rest on reasonable,
objective criteria for determining which
employers must report information to
OSHA (see New York v. Burger, 482 U.S.
691, 702–703 (1987)).
OSHA notes that two courts have
held, contrary to A.B. Chance, that the
Fourth Amendment requires prior
judicial review of the reasonableness of
an OSHA field inspector’s demand for
access to injury and illness logs before
the agency could issue a citation for
denial of access (McLaughlin v. Kings
Island, 849 F.2d 990 (6th Cir. 1988);
Brock v. Emerson Electric Co., 834 F.2d
E:\FR\FM\21JYR2.SGM
21JYR2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
994 (11th Cir. 1987)). Those decisions
are inapposite here. The courts based
their rulings on a concern that field
enforcement staff had unbridled
discretion to choose the employers they
would inspect and the circumstances in
which they would demand access to
employer records. The Emerson Electric
court specifically noted that in
situations where ‘‘businesses or
individuals are required to report
particular information to the
government on a regular basis[,] a
uniform statutory or regulatory
reporting requirement [would] satisf[y]
the Fourth Amendment concern
regarding the potential for arbitrary
invasions of privacy’’ (834 F.2d at 997,
n.2). This rule, like that hypothetical,
establishes general reporting
requirements based on objective criteria
and does not vest field staff with any
discretion. The employers that are
required to report data, the information
they must report, and the time when
they must report it are clearly identified
in the text of the rule and in
supplemental notices that will be
published pursuant to the Paperwork
Reduction Act.
ddrumheller on DSK120RN23PROD with RULES2
C. Publication of Collected Data and
FOIA
FOIA generally supports OSHA’s
intention to publish information on a
publicly available website. FOIA
provides that certain Federal agency
records must be routinely made
‘‘available for public inspection in an
electronic format’’ (see 5 U.S.C.
552(a)(2) (2016)). Subsection (a)(2)(D)(ii)
provides that agencies must include any
records processed and disclosed in
response to a FOIA request that ‘‘the
agency determines have become or are
likely to become the subject of
subsequent requests for substantially the
same records’’ or ‘‘have been requested
3 or more times.’’
Based on its experience, OSHA
believes that the recordkeeping
information from the Forms 300, 301,
and 300A required to be submitted
under this rule will likely be the subject
of multiple FOIA requests in the future.
Consequently, the agency plans to place
the recordkeeping information that will
be posted on the public OSHA website
in its Electronic FOIA Library. Since
agencies may ‘‘withhold’’ (i.e., not make
available) a record (or portion of such a
record) if it falls within a FOIA
exemption, just as they can do in
response to FOIA requests, OSHA will
place the published information in its
FOIA Library consistent with all FOIA
exemptions.
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
D. Reasoned Explanation for Policy
Change
When a Federal agency action
changes or reverses prior policy, that
action is subject to the same standard of
review as an action that addresses an
issue for the first time or is consistent
with prior policy (F.C.C. v. Fox
Television Stations, Inc., 556 U.S. 502,
514–15 (2009)). As with any other
agency action, agencies must simply
‘‘provide a reasoned explanation for the
change’’ (Encino Motorcars, LLC v.
Navarro, 579 U.S. 211, 221 (2016)). An
agency that is changing policy must
‘‘display awareness that it is changing
position,’’ but ‘‘need not demonstrate
. . . that the reasons for the new policy
are better than the reasons for the old
one’’; ‘‘it suffices that the new policy is
permissible under the statute, that there
are good reasons for it, and that the
agency believes it to be better, which the
conscious change of course adequately
indicates’’ (F.C.C., 556 U.S. at 515;
accord DHS v. Regents of Univ. of
California, 140 S. Ct. 1891 (2020);
Encino Motorcars, LLC, 579 at 221; see
also Advocates for Highway & Auto
Safety v. FMCSA, 41 F.4th 586 (D.C. Cir.
2022) (upholding 2020 change to 2015
rule); Overdevest Nurseries, L.P. v.
Walsh, 2 F. 4th 977 (D.C. Cir. 2021)
(upholding 2010 change to 2008 rule)).
In sum, the Administrative Procedure
Act imposes ‘‘no special burden when
an agency elects to change course’’
(Home Care Ass’n of Am. v. Weil, 799
F.3d 1084, 1095 (D.C. Cir. 2015)).
Although agencies may need to
provide more detailed explanations for
changes in policy that ‘‘engendered
serious reliance interests,’’ F.C.C. v. Fox
Television Stations, Inc., 556 U.S. 502,
515 (2009), OSHA has found no such
reliance interests at stake in this
rulemaking. The prior policy, contained
within the 2019 final recordkeeping
rule, represented a return to the pre2016 status quo wherein large
employers were not required to submit
their Form 300 and Form 301
information to OSHA. Essentially, the
prior policy relieved employers of the
requirement to incur the costs they
would have had to incur to comply with
the 2016 final rule. Therefore, the prior
policy did not require employers to take
any steps or invest any resources to
comply with it. Further, OSHA made it
clear in the 2019 final rule that its
decision was based on a temporal
weighing of the potential risks to
privacy against the benefits of collecting
the data (e.g., ‘‘OSHA has determined
that because it already has systems in
place to use the 300A data for
enforcement targeting and compliance
PO 00000
Frm 00007
Fmt 4701
Sfmt 4700
47259
assistance without impacting worker
privacy, and because the Form 300 and
301 data would provide uncertain
additional value, the Form 300A data
are sufficient for enforcement targeting
and compliance assistance at this time’’
(84 FR 392)). Employers were therefore
placed on notice that the policy
announced in the 2019 rule could
change based on OSHA’s weighing of
the relevant considerations over time,
further alleviating any reliance interests
the rule might have engendered. In any
event, OSHA provides detailed and
specific reasons for the change in prior
policy throughout this preamble.2
III. Summary and Explanation of the
Final Rule
OSHA is amending its occupational
injury and illness recordkeeping
regulations at 29 CFR part 1904 to
require certain employers to
electronically submit injury and illness
information to OSHA that employers are
already required to keep. Specifically,
this final rule requires establishments
with 100 or more employees in certain
designated industries (i.e., the
industries on appendix B to subpart E
of part 1904) to electronically submit
information from their OSHA Forms 300
and 301 to OSHA once a year. OSHA
will not collect certain information, like
employee and healthcare provider
names and addresses, from the Forms
300 and 301 in order to protect the
privacy of workers and other
individuals identified on those forms. In
addition, the final rule retains the
requirements for the annual electronic
submission of information from the
Form 300A annual summary.
Establishments with 20 to 249
employees in certain industries (i.e.,
those on appendix A to subpart E of part
1904) will continue to be required to
electronically submit information from
their OSHA Form 300A to OSHA once
a year. And, all establishments with 250
or more employees that are required to
keep records under part 1904 will
continue to be required to electronically
submit information from their Form
300A to OSHA once a year. In addition,
the final rule requires establishments to
2 OSHA has determined that it is necessary and
appropriate to require certain establishments to
electronically submit case-specific, establishmentspecific data from their Forms 300 and 301 to
OSHA. Any claimed reliance interest in the prior
policy, which did not contain that requirement, is
outweighed by the significant benefits to
occupational safety and health, discussed in
Section III.B.4 of the Summary and Explanation,
that OSHA expects to accrue from this rule (see
Regents of the Univ. of California, 140 S. Ct. at 1914
(it is ‘‘the agency’s job’’ to determine ‘‘in the
particular context before it, that other interests and
policy concerns outweigh any reliance interests’’)).
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
47260
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
include their legal company name as
part of their annual submission. OSHA
intends to post some of the information
from these annual electronic
submissions on a public website after
removing any submitted information
that could reasonably be expected to
identify individuals directly. OSHA
received a number of comments on the
proposed rule, which was published in
March 2022.
Many commenters strongly support
this rulemaking effort (e.g., Docket IDs
0008, 0026, 0029, 0033, 0040, 0047,
0048, 0049, 0061, 0063, 0067, 0069,
0073, 0084, 0089), while others are
strenuously opposed (e.g., Docket IDs
0043, 0050, 0052, 0053, 0058, 0059,
0062, 0088, 0090). Several commenters
requested that OSHA withdraw the
proposed rule (e.g., Docket IDs 0042,
0065, 0075). Organizations that
represent employees generally
advocated for OSHA to proceed with the
rulemaking, arguing that collecting and
publishing workplace illness and injury
information will lead to improvements
in worker safety and health in a number
of different ways. Organizations
commenting on behalf of employers
argued, in many cases, that the required
submission and subsequent publication
of this information could harm
businesses or result in violations of
employees’ privacy. OSHA has
evaluated the public comments and
other evidence in the record and agrees
with commenters who believe that
electronic submission of worker injury
and illness information to OSHA will
lead to safer workplaces. The agency has
decided to move forward with a final
rule requiring electronic submission of
this information.
Public comments regarding the final
regulatory provisions and specific issues
related to the submission and
publication of workplace injury and
illness information are discussed
throughout this preamble. The
Summary and Explanation is organized
by regulatory provision, with issues
related to each provision discussed in
the section for that provision.
Comments not specifically related to a
regulatory provision and comments that
apply to the rulemaking in general are
addressed at the end of the Summary
and Explanation. OSHA’s economic
analysis and related issues and
comments are discussed in Section IV,
Final Economic Analysis, following the
Summary and Explanation.
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
A. Section 1904.41(a)(1)(i) and (ii)—
Annual Electronic Submission of
Information From OSHA Form 300A
Summary of Work-Related Injuries and
Illnesses
The final rule requires electronic
submission of Form 300A information
from two categories of establishments.
First, § 1904.41(a)(1)(i) requires
establishments with 20–249 employees
that are in an industry listed in
appendix A of subpart E of part 1904 to
electronically submit information from
their Form 300A to OSHA. The
industries included on appendix A are
listed by the NAICS codes from 2017.
Second, § 1904.41(a)(1)(ii) requires
establishments with 250 or more
employees that are required to keep
records under part 1904 to
electronically submit their Form 300A
information to OSHA. For all
establishments, the size of the
establishment is determined based on
how many employees the establishment
had during the previous calendar year.
Data must be submitted annually, for
the previous calendar year, by the date
specified in § 1904.41(c), which is
March 2.
As discussed in more detail below,
the requirements for establishment
submission of Form 300A information
under the final rule are substantively
identical to the requirements previously
found in § 1904.41(a)(1) and (a)(2). In
other words, all establishments with 250
or more employees are still required to
submit information from Form 300A,
and establishments with 20–249
employees in industries on appendix A
of subpart E are still required to submit
information from their Form 300A.
However, OSHA has made minor
revisions to the language of final
§ 1904.41(a)(1)(i) and (ii), and the final
regulatory text of both provisions has
been restructured, with final
§ 1904.41(a)(1)(i) addressing the Form
300A submission requirements for
establishments with 20–249 employees
and final § 1904.41(a)(1)(ii) addressing
the Form 300A submission
requirements for establishments with
250 or more employees. As discussed
elsewhere in this preamble, final
§ 1904.41(a)(2) addresses the submission
requirements for OSHA Forms 300 and
301 by establishments with 100 or more
employees in the industries listed in
appendix B. The final rule’s
requirements in § 1904.41(a)(1) are
discussed below, along with the
proposed provisions and related
evidence in the rulemaking record.
PO 00000
Frm 00008
Fmt 4701
Sfmt 4700
1. Section 1904.41(a)(1)(i)—
Establishments With 20–249 Employees
That Are Required To Submit
Information From OSHA Form 300A
Under proposed § 1904.41(a)(1),
establishments that had 20 or more
employees at any time during the
previous calendar year, and that are
classified in an industry listed in
appendix A to subpart E, would have
been required to electronically submit
information from their OSHA Form
300A to OSHA or OSHA’s designee
once a year. As OSHA explained in the
preamble to the NPRM, this proposed
provision was essentially the same as
the previous requirements. OSHA
requested comment on proposed
§ 1904.41(a)(1) generally.
OSHA did not receive many
comments specifically about the
proposed continuation of the
requirement for certain establishments
with 20 or more employees to submit
their Form 300A data electronically.
The Laborers Health and Safety Fund of
North America stated that the proposal
for establishments with 20 or more
employees in certain high-hazard
industries to electronically submit Form
300A data to OSHA ‘‘must be a
requirement,’’ and emphasized the
value of the data for numerous
interested parties (Docket ID 0080). The
Communications Workers of America
(CWA) urged OSHA to expand the
submission requirements for the 300A
by requiring all establishments with at
least 20 employees to submit
information from the Form 300A,
instead of limiting the requirement to
only those industries on appendix A
(Docket ID 0092). In addition, the
National Federation of Independent
Business (NFIB) commented on this
provision, noting that ‘‘the proposed
rule lowers the previous threshold that
triggers a duty to file with OSHA
automatically (i.e., without any request
from OSHA) from 250 or more
employees to 20 or more employees,
increasing the number of small and
independent businesses within the
appendix A industries required to
submit Form 300A’’ (Docket ID 0036).
However, NFIB’s comment appears to
misunderstand the previous
requirements. As OSHA explained in
the preamble to the proposed rule,
establishments with 20–249 employees,
in industries listed in appendix A, were
already required to electronically
submit information from their OSHA
300A to OSHA every year (87 FR18535–
6). OSHA was not proposing an
expansion of this requirement.
Having reviewed the evidence in the
record, OSHA has decided to retain the
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
requirement for establishments with 20–
249 employees to annually submit their
Form 300A data to OSHA. As noted by
the Laborers Health and Safety Fund of
North America and discussed further
below, this requirement provides a good
deal of useful data to many types of
interested parties and should not be
displaced. OSHA acknowledges the
comments supporting expansion of the
previous requirement but notes that
expanding the requirement for
submission of Form 300A data to all
establishments with 20–249 employees
that are covered by part 1904 would
expand the data collection to a total of
about 557,000 establishments with 20–
249 employees, according to 2019
County Business Patterns data (https://
www.census.gov/programs-surveys/cbp/
data/datasets.html). In contrast, OSHA
estimates that about 463,000
establishments with 20–249 employees
in industries that are in appendix A will
be required to submit data under the
final rule (https://www.census.gov/
programs-surveys/cbp/data/
datasets.html). OSHA does not believe,
at this time, that the benefits from the
additional data collection would
outweigh the disadvantages of the
additional time and resources required
for compliance.
In the previous regulation, this
requirement was at § 1904.41(a)(2). In
the final rule, it is at § 1904.41(a)(1)(i).
This final rule will not impose any new
requirements on establishments with
20–249 employees to electronically
submit information from their Form
300A to OSHA. All establishments that
will be required to electronically submit
Form 300A information to OSHA on an
annual basis under the final rule are
already required to do so.
Additionally, as noted above, OSHA
revised the language of this requirement
slightly for clarity. Specifically, the
previous version referred to
establishments with ‘‘20 or more
employees but fewer than 250
employees[,]’’ while final
§ 1904.41(a)(1)(i) refers to
establishments with ‘‘20–249
employees[.]’’ These clarifying edits do
not change the substantive requirements
of the provision.
Similarly, OSHA revised the language
of proposed § 1904.41(a)(1) in this final
rule for clarity without adding any new
requirements for employers.
Specifically, proposed § 1904.41(a)(1)
would have required establishments
with 20 or more employees that are in
an industry listed in appendix A of
subpart E of part 1904 to electronically
submit information from their Form
300A to OSHA. The final version of that
provision, § 1904.41(a)(1)(i), addresses
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
only establishments with 20–249
employees, because final
§ 1904.41(a)(1)(ii) addresses
establishments with 250 or more
employees. This change was made to
eliminate the overlap, and potential
confusion, that would have resulted if
both § 1904.41(a)(1)(i) and
§ 1904.41(a)(1)(ii) addressed
establishments with 250 or more
employees.
2. Section 1904.41(a)(1)(ii)—
Establishments With 250 or More
Employees That Are Required To
Submit Information From OSHA Form
300A
Although OSHA proposed to maintain
the same Form 300A submission
requirement for establishments with 20–
249 employees, the agency proposed to
remove the electronic submission
requirement for certain establishments
with 250 or more employees. Under
previous § 1904.41(a)(1), all
establishments of this size in industries
routinely required to keep injury and
illness records were required to
electronically submit information from
their Form 300A to OSHA once a year.
The proposal would have required this
submission only from those
establishments with 250 or more
employees in industries listed in
appendix A to subpart E. As explained
in the preamble to the proposed rule,
OSHA had preliminarily determined
that collecting Form 300A data from a
relatively small number of large
establishments in lower-hazard
industries was not a priority for OSHA
inspection targeting or compliance
assistance activities. OSHA asked for
comment on the proposed changes to
§ 1904.41(a)(1) generally, and also
specifically asked the question, ‘‘Is it
appropriate for OSHA to remove the
requirement for establishments with 250
or more employees, in industries not
included in appendix A, to submit the
information from their OSHA Form
300A?’’ (87 FR18546).
There were no comments specifically
supporting the proposal to remove the
requirement for establishments with 250
or more employees, in industries not
included in appendix A, to submit the
information from their OSHA Form
300A. In contrast, multiple commenters
opposed the proposal and urged OSHA
to retain the existing requirement for
establishments with 250 or more
employees that are normally required to
report under part 1904 to submit data
from their 300As (e.g., Docket IDs 0024,
0035, Attachment 2, 0039, 0040, 0045,
0047, 0048, 0049, 0051, 0061, 0066,
0067, 0069, 0079, 0080, 0083, 0089,
0092, 0093). Reasons for objecting to the
PO 00000
Frm 00009
Fmt 4701
Sfmt 4700
47261
proposed removal of the requirement for
some large establishments to submit
data from their Form 300As included:
OSHA offered no compelling reason for
removal; the need for continued
oversight over large establishments in
lower-hazard industries in general and
certain industries in particular; the
ability to use the data to protect the
large number of employees employed in
these establishments; and the value of
the public information to employee
safety and health efforts.
Some commenters argued that OSHA
had not made a persuasive case for
removing the requirement for large
establishments in industries not listed
on appendix A to submit their 300A
data. For example, Hunter Cisiewski
commented, ‘‘The proposed rule
ultimately fails to present a compelling
argument for why ‘lower hazard’
industries should no longer be required
to electronically submit Form 300A
when they must still keep record of the
form, present it to employees on
request, and post it publicly in the
workplace’’ (Docket ID 0024). The AFL–
CIO argued, ‘‘There is no reason that
these establishments should be
excluded from a standard they are
already subject to and have been
complying with. OSHA should at
minimum, maintain the requirements
for large establishments in these sectors
that are already in place’’ (Docket ID
0061; see also Docket ID 0079).
Similarly, Public Citizen and the United
Food and Commercial Workers
International Union (UFCW) noted that
there would be no significant burden on
employers to maintaining the
requirement because these employers
are already required to keep Form 300A
data and they have systems in place for
submitting the data to OSHA
electronically (Docket IDs 0093, 0066).
The United Steelworkers Union (USW)
argued that keeping industries covered
helps increase the stability of the
system. USW urged OSHA to ‘‘focus on
expanding, not limiting, those covered
by disclosure requirements, and to
ensure that all employers currently
covered by the reporting requirements
remain covered’’ (Docket ID 0067; see
also Docket ID 0080). The UFCW stated
that ‘‘[A]ll available evidence reflects
that OSHA’s current requirements
provide easy access to important data
that is crucial to reducing and
preventing workplace injuries and
illnesses’’ (Docket ID 0066).
Other commenters, such as the
National Institute for Occupational
Safety and Health (NIOSH) and the
International Brotherhood of Teamsters,
noted that although the industries that
are not listed in appendix A may have
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
47262
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
relatively low injury rates overall,
‘‘injury rates can vary greatly across
employers and establishments within
industries. The requirement for large
establishments to submit a 300A Log
annually would be a reasonable way to
identify establishments that have high
injury rates for their industry, and to
identify subsegments of industries that
may have more hazardous work
processes and activities’’ (Docket ID
0035, Attachment 2; see also Docket ID
0083). Similarly, the Seventeen
Attorneys General from New Jersey,
California, Connecticut, Delaware, the
District of Columbia, Hawaii, Illinois,
Maryland, Massachusetts, Michigan,
Minnesota, Nevada, New Mexico, New
York, Oregon, Rhode Island, and
Vermont (Seventeen AGs) noted their
states’ concern that removing the 300A
submission requirement for ‘‘lowerhazard’’ industries would leave Federal
OSHA and State occupational safety and
health agencies with little way of
determining whether these industries
were becoming more dangerous for
workers over time. This, in turn, could
affect the States’ outreach and
enforcement efforts. ‘‘For example, if
[s]tates had previously conducted
enforcement and outreach in ‘low
hazard’ industries, thus keeping risks
down, but deprioritize such
enforcement based on a lack of
reporting, any uptick of illnesses and
injuries in those industries, requiring
enforcement efforts, may initially go
unnoticed by the [s]tates’’ (Docket ID
0045).
Other commenters emphasized the
significant number of workers employed
by the large establishments that OSHA
had proposed to exclude from
submitting their 300A data, and the
usefulness of the data in providing them
with safe work environments. Hunter
Cisiewski estimated that at least 666,250
workers are employed by the
approximately 2,665 establishments
with 250 or more employees that were
proposed to be removed from the Form
300A submission requirement
(assuming that each establishment
employs only 250 workers). The same
commenter also noted that the workers
in these large establishments already
rely on the required reporting of their
injuries to OSHA ‘‘to ensure compliance
with workplace regulations’’ (Docket ID
0024). Similarly, the Council of State
and Territorial Epidemiologists (CSTE)
noted that even if the industries
proposed for exclusion have lower
injury and illness rates than the
industries on appendix A, they employ
a large number of people. ‘‘Numbers [of
workers] as well as rates of work-related
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
injuries or illness need to be considered
in setting prevention priorities. These
establishments need to provide a safe
work environment, and electronic
collection of summary data will allow
OSHA and public health agencies to
monitor their ability to do so’’ (Docket
ID 0040). The International Brotherhood
of Teamsters commented, ‘‘we think
continuing to collect OSHA 300A data
for the large numbers of workers
employed in these establishments,
would help to identify less obvious
problems and implement corresponding
preventive measures’’ (Docket ID 0083).
Various commenters pointed to
known or potentially hazardous
industry segments that would have been
exempt from submitting 300A data
under the proposal. For example, the
National Council for Occupational
Safety and Health (National COSH) as
well as the Centro de los Derechos del
Migrantes pointed to the temporary
service industry and the home health
care industry as industries with known
hazards for which OSHA and the public
should have access to injury and illness
data (Docket IDs 0048, 0089; see also
Docket ID 0049). The AFL–CIO pointed
to home health services, an industry
heavily affected by COVID–19,
employment services, which includes
vulnerable temporary workers, and
some wholesalers with rates of cases
with days away from work, restricted
work activity, or job transfer (DART)
above 2.0 per 10,000 workers in 2020
(e.g., NAICS 4231, 4233, 4235, 423930,
4244, 4248, 4249) as industries
containing large establishments that
would be newly exempted from the
300A submission requirements The
AFL–CIO argued that ‘‘limiting the data
these industries provide the agency
would severely limit the ability to track
and identify emerging workplace
hazards’’ (Docket ID 0061).
Some commenters argued that
maintaining the existing 300A reporting
requirement for all large establishments
is particularly important because the
industries on appendix A reflect injury
and illness data from the BLS SOII that
is not current. Therefore, exempting
industries not on appendix A could
result in missing information from
industries that may have become more
dangerous since publication of the SOII
data for 2011 to 2013. The United
Steelworkers Union (USW) commented,
‘‘By tying the proposed rule to outdated
and underreported injury and illness
data, many employers with 250 or more
employees in potentially high-hazard
industries would be exempted, limiting
workers’ ability to make informed
decisions about a workplace’s safety and
health. . . . These industries are
PO 00000
Frm 00010
Fmt 4701
Sfmt 4700
currently covered by reporting
requirements and many, like home
health, have seen a rise in injuries and
illnesses since the COVID–19 pandemic
began’’ (Docket ID 0067). Public Citizen
echoed this comment, stating that past
injury rates, which are used to designate
industries required to submit data, may
not reflect more recent safety
conditions. Public Citizen noted, in
addition, that the pandemic served as a
reminder ‘‘that even seemingly ‘lowhazard’ workplaces can be the epicenter
of deadly outbreaks’’ (Docket ID 0093).
Finally, a number of commenters
underscored the value of the 300A data
that is being collected from large
establishments. The UFCW urged OSHA
to retain the requirement for collection
from all large establishments because it
would allow many types of users (the
public, employers, workers, researchers,
and the government) to use the data ‘‘in
the very positive ways that the UFCW
has used it’’ already. The UFCW
described, in its comment, the many
specific ways in which UFCW has used
published and union-collected illness
and injury data from the OSHA Form
300A, among other information, to
increase safety and health at large
union-represented facilities (Docket ID
0066). Public Citizen commented that
‘‘the value of continuing to collect the
information from these employers
outweighs any supposed burden . . .
data collected from electronic
submission of injury and illness
information can help identify broad
patterns from small injury and illness
numbers per establishment. Having this
additional data from Form 300A
summaries would assist with research
into specific types of injuries and
illnesses’’ (Docket ID 0093).
In addition to supporting
maintenance of the requirement for
submission of 300A data by large
establishments, several commenters
supported expanding the submission
requirements for large establishments
even further. For example, the National
Employment Law Project (NELP)
supported requiring all employers with
250 or more employees to submit
information from the Form 300 Log in
addition to the Form 300A. NELP
argued that certain industries, such as
home health care and employment
services, contain very large employers
that have Total Case Rates (TCRs) that
are well above the private sector
average. NELP therefore urged OSHA to
retain as well as expand electronic
submission requirements for large
establishments with 250 or more
employees in industries that are
required to keep records under part
1904 so that researchers and other
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
organizations could more effectively
track and monitor occupational health
and safety trends in home health care,
employment services, and other sectors
(Docket ID 0049; see also Docket ID
0089).
The Laborers’ Health and Safety Fund
of North America argued that OSHA
should require all establishments with
250 or more employees to submit the
Form 300 and Form 301, in addition to
the Form 300A: ‘‘Establishments with
250 or more employees account for large
contractors that work on larger
construction sites that can be
considered high-risk. For these reasons,
establishments should be required to
submit electronic OSHA 300, 300A and
301 forms to not only track injury and
illness, but prove to OSHA that they are
taking the steps to mitigate and prevent
them from happening’’ (Docket ID
0080).
Having reviewed the information in
the record on this issue, OSHA has
decided not to make the proposed
change of restricting the universe of
large establishments that are required to
submit data from Form 300A. Instead,
the agency will maintain the
requirement for all establishments with
250 or more employees that are covered
by part 1904 to submit the information
from their OSHA Form 300A to OSHA,
or its designee, once a year. As
explained by commenters, these
establishments are already submitting
this information, so there is no new
burden for employers. Furthermore,
access to the information provides
multiple benefits for workers, Federal
and State occupational safety and health
agencies, and other interested parties.
For example, continuing to collect and
make this data available to the public
will allow tracking of industry hazards
over time, even for industries that are
not on appendix A. Commenters noted
that this type of tracking was
particularly critical for industry
segments and establishments that have
injury rates higher than the rate for their
4-digit NAICS industry overall. They
also noted that requiring information to
be submitted from all large
establishments will help blunt the effect
of using SOII data that is several years
old in determining which NAICS will be
included on appendix A. OSHA agrees
with these rationales.
Although OSHA stated in the
proposal that collecting Form 300A data
from this relatively small number of
large establishments in lower-hazard
industries is not a priority for OSHA
inspection targeting or compliance
assistance, OSHA is persuaded by
commenters who see the value in
providing such data to the public; this
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
includes the UFCW, which has been
using this data to make positive safety
and health changes in large
establishments. In addition, OSHA
recognizes the large number of workers
represented by the relatively small
number of establishments that would
have been affected by the proposed
change and does not wish to remove
resources that could be used to improve
their safety and health.
OSHA acknowledges the comments
supporting expansion of the final
requirement by requiring submission of
information from Forms 300 and 301 by
all large establishments (250 or more
employees) required to keep records
under part 1904. However, this change
would expand the universe of large
establishments required to submit Form
300 and Form 301 data from about
22,000 (establishments with at least 250
employees that are in NAICS listed on
appendix B) to about 40,000
(establishments with at least 250
employees that are required to keep
records under part 1904), an increase of
80 percent (data are as of 2019; see
https://www.census.gov/programssurveys/cbp/data/datasets.html). OSHA
does not believe, at this time, that the
benefits from the additional data
collection would outweigh the
disadvantages of the additional time and
resources that employers would have to
expend to comply. OSHA also values
the stability provided to employers by
keeping the universe of establishments
required to submit 300A data the same,
in light of the multiple recent changes
to OSHA’s data submission
requirements.
In the previous regulation, this
requirement was at § 1904.41(a)(1). In
the final rule, it is at § 1904.41(a)(1)(ii).
This final rule will not impose any new
requirements on establishments to
electronically submit information from
their Form 300A to OSHA. All
establishments that will be required to
electronically submit Form 300A
information to OSHA on an annual basis
under the final rule were already
required to do so under the previous
regulation. OSHA made only one nonsubstantive change in the final
regulatory text; whereas the previous
regulatory text at § 1904.41(a)(1)
contained an example stating that data
for calendar year 2018 would be
submitted by the month and day listed
in § 1904.41(c) of calendar year 2019,
that example has been removed from the
final regulatory provision at
§ 1904.41(a)(1)(ii). A similar, updated
example is included in final
§ 1904.41(b)(1).
PO 00000
Frm 00011
Fmt 4701
Sfmt 4700
47263
3. Restructuring of Previous Section
1904.41(a)(1) and (2) Into Final Section
1904.41(a)(1)(i) and (ii)
In the preamble to the proposed rule,
OSHA asked the following question
about the structure of the regulatory text
containing the requirements to submit
data from OSHA injury and illness
recordkeeping forms: ‘‘The proposed
regulatory text is structured as follows:
§ 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,
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?’’ (87 FR 18547).
OSHA did not receive many
comments on this proposed alternative
structure for the regulatory text.
However, NIOSH noted that it preferred
the second option. ‘‘NIOSH finds the
second alternative . . . to be somewhat
preferable. That alternative focuses first
on which establishments are required to
submit OSHA Form 300A, and then
focuses on which establishments are
required to submit OSHA Forms 300
and 301. This structure may help
employers to more directly answer their
questions about what forms to submit’’
(Docket ID 0035, Attachment 2).
OSHA agrees that the proposed
alternative structure, which separates
the provisions by recordkeeping form,
may help employers better understand
the regulatory requirements for their
establishments. Based on this reasoning,
as well as on OSHA’s decision to retain
the requirement for all establishments
with 250 or more employees in
industries covered by part 1904 to
E:\FR\FM\21JYR2.SGM
21JYR2
47264
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
submit information from their Form
300A annual summary (discussed
above), OSHA has decided to
restructure the final regulation by
recordkeeping form, rather than
establishment size and industry.
Therefore, in the final rule,
§ 1904.41(a)(1) covers the requirement
to submit the OSHA Form 300A, with
§ 1904.41(a)(1)(i) for establishments
with 20–249 employees in appendix A
industries, and § 1904.41(a)(1)(ii) for
establishments with 250 or more
employees in industries covered by part
1904. Final § 1904.41(a)(2) covers the
requirement to submit the OSHA Forms
300 and 301, as discussed below.
ddrumheller on DSK120RN23PROD with RULES2
4. Updating Appendix A
Additionally, OSHA proposed to
revise appendix A to subpart E to
update the list of designated industries
to conform with the 2017 version of the
North American Industry Classification
System (NAICS). Since OSHA revised
§ 1904.41 in 2016, the Office of
Management and Budget has issued two
updates to the NAICS codes, in 2017
and 2022. As explained in the preamble
to the proposed rule, OSHA believed
that the proposed update from 2012
NAICS to 2017 NAICS would have the
benefits of using more current NAICS
codes, ensuring that both proposed
appendix A and proposed appendix B
used the same version of NAICS,
aligning with the version currently used
by BLS for the SOII data that OSHA
used for this rulemaking, and increasing
the likelihood that employers were
familiar with the industry codes.
As OSHA explained, this revision
would not affect which industries were
required to provide their data, but rather
simply reflect the updated 2017 NAICS
codes. For appendix A, OSHA limited
the scope of this rulemaking to the
proposed update from the 2012 version
of NAICS to the 2017 version of NAICS.
The change from the 2012 NAICS to the
2017 NAICS would affect only a few
industry groups at the 4-digit NAICS
level. Specifically, the 2012 NAICS
industry group 4521 (Department
Stores) is split between the 2017 NAICS
industry groups 4522 (Department
Stores) and 4523 (General Merchandise
Stores, including Warehouse Clubs and
Supercenters). Also, the 2012 NAICS
industry group 4529 (Other General
Merchandise Stores) is included in 2017
NAICS industry group 4523 (General
Merchandise Stores, including
Warehouse Clubs and Supercenters). As
noted above, however, the
establishments in these industries were
already covered by the previous record
submission requirements, so this would
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
not represent a substantive change in
those requirements.
The Phylmar Regulatory Roundtable
(PRR) supported the proposed update
from the 2012 version of NAICS to the
2017 version of NAICS for appendix A,
commenting, ‘‘It is both practical and
logical to align with the most recent
codes from an accuracy standpoint’’
(Docket ID 0094). The Coalition for
Workplace Safety (CWS), on the other
hand, commented that using the 2017
NAICS codes for Appendices A and B
when the 2022 codes have already been
released by OMB will lead to confusion
and mistakes, unduly complicating the
proposed requirements (Docket ID
0058).
While OSHA did not propose
modifications to appendix A other than
the update from 2012 NAICS to 2017
NAICS, OSHA did discuss one
alternative in the proposal that would
affect the industries on appendix A:
updating appendix A to reflect the
2017–2019 injury rates from the SOII.
Appendix A is based on the SOII’s
injury rates from 2011–2013. This
alternative would have resulted in the
addition of one industry to appendix A
(NAICS 4831 (Deep sea, coastal, and
great lakes water transportation)) and
the removal of 13 industries (4421
Furniture Stores, 4452 Specialty Food
Stores, 4853 Taxi and Limousine
Service, 4855 Charter Bus Industry,
5152 Cable and Other Subscription
Programming, 5311 Lessors of Real
Estate, 5321 Automotive Equipment
Rental and Leasing, 5323 General Rental
Centers, 6242 Community Food and
Housing, and Emergency and Other
Relief Services, 7132 Gambling
Industries, 7212 RV (Recreational
Vehicle) Parks and Recreational Camps,
7223 Special Food Services, and 8113
Commercial and Industrial Machinery
and Equipment (except Automotive and
Electronic) Repair and Maintenance).
OSHA did not receive many
comments in response to this
alternative. The AFL–CIO stated that the
use of ‘‘outdated’’ SOII data to
determine the industries on appendix A
would lead to missing information from
industries that might have become (or
might become in the future) more
hazardous since the time period used as
the basis for appendix A (2011–2013).
However, this statement was made in
the context of the AFL–CIO’s argument
that OSHA should not restrict the large
establishments required to submit 300A
data to those in industries on appendix
A, as OSHA proposed. Because OSHA is
not adopting that approach, and instead
is requiring all large establishments
covered by part 1904 to continue
submitting data from Form 300A, OSHA
PO 00000
Frm 00012
Fmt 4701
Sfmt 4700
believes this concern will be minimized
under the final regulatory requirements.
Having reviewed the record, OSHA
has decided to update appendix A to
subpart E from the 2012 version of
NAICS to the 2017 version of NAICS. As
the PRR commented, it is practical and
logical to align the industry list in
appendix A with the more recent NAICS
codes (see Docket ID 0094). Indeed,
employers are likely more familiar with
the 2017 codes than the 2012 codes.
This change would also ensure that
appendices A and B use the same
version of NAICS. Finally, the 2017
NAICS codes are used by BLS for the
SOII data that OSHA is using for this
rulemaking. While CWS stated that
using the 2017 codes when the 2022
codes have already been released will
cause confusion (Docket ID 0058),
OSHA notes that both appendices are
based on SOII data from BLS, and that
no SOII data using the 2022 NAICS
codes are currently available. SOII data
for 2022 will not be available until
November 2023. Thus, it is not possible
for OSHA to base appendix A or B on
SOII data that use the 2022 NAICS
codes, even though the 2022 codes are
the most recent ones available.
OSHA has also decided not to update
appendix A using more recent SOII
data. As discussed in the preamble to
the proposed rule, it took several years
for the regulated community to
understand which industries were and
were not required to submit
information, and such
misunderstandings could result in both
underreporting and overreporting.
OSHA has determined that changing the
covered industries, by changing the data
that forms the basis for the NAICS on
appendix A, would result in additional
confusion for the regulated community
that is not warranted at this time.
Moreover, three of the industries that
would be removed from appendix A if
OSHA based that appendix on updated
data are also listed in appendix B,
indicating that they remain hazardous
under other measures. Finally, as noted
above, OSHA agrees with interested
parties who commented that requiring
information to be submitted from all
large establishments will help blunt the
effect of using the older SOII data in
determining which NAICS will be
included on appendix A.
The final appendix A to subpart E of
part 1904 (Designated industries for
§ 1904.41(a)(1)(i) Annual electronic
submission of information from OSHA
Form 300A Summary of Work-Related
Injuries and Illnesses by establishments
E:\FR\FM\21JYR2.SGM
21JYR2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
47265
with 20–249 employees in designated
industries) is as follows: 3
ddrumheller on DSK120RN23PROD with RULES2
NAICS
Industry
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 .......................
8123 .......................
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.
Drycleaning and Laundry Services.
3 As noted in the NPRM, OSHA proposed to
remove NAICS 7213, Rooming and Boarding
Houses, from appendix A (see 87 FR 18536, n.7).
Employers in NAICS 7213 are not required to
routinely keep OSHA injury and illness records, per
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
the part 1904 non-mandatory appendix A to subpart
B. This NAICS industry group was mistakenly
included in appendix A to subpart E when OSHA
published its 2016 final rule (see 81 FR 29642).
OSHA received no comments objecting to the
PO 00000
Frm 00013
Fmt 4701
Sfmt 4700
removal of NAICS 7213 from appendix A to subpart
E and thus has excluded this industry group from
the final version of this appendix.
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
47266
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
B. Section 1904.41(a)(2)—Annual
Electronic Submission of OSHA Form
300 Log of Work-Related Injuries and
Illnesses and OSHA Form 301 Injury
and Illness Incident Report by
Establishments With 100 or More
Employees in Designated Industries
Section 1904.41(a)(2) of the final rule
requires establishments that (1) had 100
or more employees at any point during
the previous calendar year and (2) are
classified in one of the industries listed
in appendix B to subpart E of part 1904
to electronically submit certain
information from their Forms 300 and
301 to OSHA or OSHA’s designee. Data
from the 300 and 301 forms must be
submitted annually, for the previous
calendar year, by March 2 (§ 1904.41(c)).
The only change from the proposed rule
is the deletion of the proposed rule’s
reference to Form 300A. That reference
has been deleted from this provision
because the requirements for
establishments to submit Form 300A are
contained in § 1904.41(a)(1)(i) and (ii) in
this final rule. Comments related to the
submission of Form 300A are discussed
in that section. Appendix B has also
changed from the proposal. Specifically,
OSHA has added six industries to
appendix B. All six of the industries
added to appendix B have been part of
appendix A since appendix A’s creation
in 2016.
As discussed in Section I.C,
Regulatory History, in 2016, OSHA
issued a final rule that required
establishments with 250 or more
employees that are routinely required to
keep injury and illness records under
part 1904 to electronically submit
information from their 300 and 301
forms to OSHA once a year. However,
OSHA never collected that Form 300
and 301 data, and in 2019, it issued a
final rule that removed the requirement
for these establishments to
electronically submit that information to
OSHA.
As noted above, in this rulemaking,
OSHA re-proposed a requirement for
certain establishments to submit
information from their 300 and 301
forms to OSHA annually. The proposed
provision in this rulemaking differed
from the 2016 final rule in that the
proposed provision would apply to
establishments that (1) had 100 or more
employees (rather than 250 or more
employees, as in the 2016 final rule) and
(2) are classified in an industry listed in
appendix B to subpart E of part 1904
(rather than all industries which are
required by part 1904 to keep records,
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
as in the 2016 rule). OSHA received a
wide range of comments on the
proposed provision. The issues related
to these comments are addressed below.
1. Covered Establishments and
Industries
Like the proposed rule, § 1904.41(a)(2)
of the final rule requires establishments
that had 100 or more employees at any
time during the previous calendar year,
and that are in an industry listed in final
appendix B to subpart E, to
electronically submit certain
information from their Form 300 and
301 to OSHA or OSHA’s designee once
a year. As discussed in more detail
below, under final paragraph 1904.41(c),
employers subject to the reporting
requirement in § 1904.41(a)(2) must
submit all of the required information to
OSHA or OSHA’s designee by March 2
of the year after the calendar year
covered by the forms.
As discussed above, in 2016, OSHA
issued a final rule that required all
establishments with 250 or more
employees in all industries routinely
required to keep part 1904 injury and
illness records to electronically submit
information from their 300 and 301
forms to OSHA once a year. In that
rulemaking, OSHA estimated that
establishments with 250 or more
employees covered by the submission
requirement would report 713,397
injury and illness cases each year.
However, the 300 and 301 data
submission requirements from the 2016
final rule were never fully implemented,
and OSHA never collected 300 and 301
data electronically from covered
employers. In 2019, OSHA issued a final
rule that removed the requirement for
the annual electronic submission of 300
and 301 data to OSHA.
In the NPRM in this rulemaking,
OSHA explained that in developing the
requirement for establishments with 100
or more employees to electronically
submit data from their OSHA Form 300
and 301, OSHA sought to balance the
utility of the information collection for
enforcement, outreach, and research, on
the one hand, and the burden on
employers to provide the information to
OSHA, on the other hand (see 87 FR
18543). To achieve this balance in the
proposed rule, OSHA analyzed five
years of injury and illness Form 300A
summary data collected through
OSHA’s ITA. OSHA examined
combinations of establishment size and
industry hazardousness that, like the
2016 final rule, would provide the
agency with information on roughly
PO 00000
Frm 00014
Fmt 4701
Sfmt 4700
750,000 cases of injuries and illnesses
per year—roughly the same burden as
the case-specific requirement in the
2016 final rule. Based on this analysis,
OSHA proposed a reporting requirement
for establishments with 100 or more
employees in 4-digit NAICS (2017)
industries that:
1. had a 3-year-average Total Case
Rate (TCR) in the BLS SOII for 2017,
2018, and 2019, of at least 3.5 cases per
100 full-time-equivalent employees, and
2. were included in proposed
appendix A to subpart E. (All of the
industries in proposed appendix B were
also in appendix A).
The proposed rule listed the
designated industries in proposed
appendix B to subpart E.
OSHA proposed one exception to the
above criteria, for the United States
Postal Service (USPS), which is the only
employer in NAICS 4911 Postal
Services. Under the Postal Employees
Safety Enhancement Act (Pub. L. 105–
241), OSHA treats USPS as a private
sector employer for purposes of
occupational safety and health, and
USPS establishments with 20 or more
employees have been required to
electronically submit 300A information
to OSHA. However, BLS does not
include USPS in the SOII. Using the
2017, 2018, and 2019 data submitted by
USPS to the ITA, OSHA was able to
calculate a TCR of 7.5 for NAICS 4911.
Therefore, OSHA included NAICS 4911
in proposed appendix B to subpart E.
Also, in the preamble to the proposed
rule, OSHA explained that the agency
believed TCR, which represents the
number of work-related injuries and
illnesses per 100 full-time-employees
during a one-year period, was the
appropriate rate to use for determining
the list of industries in proposed
appendix B to subpart E because
covered establishments would be
required to electronically submit
information to OSHA on all of their
recordable cases, not just cases that
resulted in days away from work, job
restriction, or transfer. OSHA explained
in the preamble that, in 2020, OSHA
received submissions to the ITA of Form
300A data for 2019 from 46,911
establishments that had 100 or more
employees and were in one of the
industries listed in proposed appendix
B to subpart E, accounting for 680,930
total recordable cases and a TCR of 3.6.
The designated industries in proposed
appendix B to subpart E were as
follows:
E:\FR\FM\21JYR2.SGM
21JYR2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
PROPOSED APPENDIX B
ddrumheller on DSK120RN23PROD with RULES2
2017 NAICS code
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
4235
4244
4248
4413
4422
4441
4442
4451
4522
4523
4533
4543
4811
4841
4842
4851
4852
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
VerDate Sep<11>2014
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.
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.
21:22 Jul 20, 2023
Jkt 259001
PO 00000
Frm 00015
Fmt 4701
Sfmt 4700
E:\FR\FM\21JYR2.SGM
21JYR2
47267
47268
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
PROPOSED APPENDIX B—Continued
2017 NAICS code
4854
4859
4871
4881
4883
4911
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
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
...........................
2017 NAICS title
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.
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.
ddrumheller on DSK120RN23PROD with RULES2
a. The Size Threshold for Submitting
Information From OSHA Forms 300 and
301
Like the proposed rule, § 1904.41(a)(2)
of the final rule requires establishments
in industries listed in appendix B to
subpart E with 100 or more employees
to electronically submit certain
information from their 300 and 301
forms to OSHA once a year. The size
criterion of 100 or more employees is
based on the total number of employees
at an establishment during the previous
calendar year. All individuals who are
‘‘employees’’ under the OSH Act are
counted in the total. The count includes
all full-time, part-time, temporary, and
seasonal employees. For businesses that
are sole proprietorships or partnerships,
the owners and partners would not be
considered employees and would not be
counted. Other examples of individuals
who are not considered to be employees
under the OSH Act are unpaid
volunteers and family members of farm
employers (see 66 FR 5916, 6038).
In the preamble to the proposed rule,
OSHA specifically requested comment
on whether the threshold of 100 or more
employees was the appropriate size
criterion for the requirement to
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
electronically submit data from the
OSHA Form 300, 301, and 300A. OSHA
also asked whether a different size
criterion would be more appropriate
(see 87 FR 18546).
OSHA received a number of
comments on the 100-or-more-employee
criterion as to the submission of OSHA
Forms 300 and 301. Some commenters
supported the 100-or-more threshold
(e.g., Docket IDs 0040, 0048, 0049, 0051,
0054, 0064, 0067, 0073, 0080, 0083,
0089, 0092, 0093). For example, the
Council of State and Territorial
Epidemiologists stated that setting the
threshold at 100 employees will allow
OSHA to receive more detailed
information from the 300/301 forms on
the nature and circumstances of injuries
and illnesses (Docket ID 0040). Also, the
International Union of Painters and
Allied Trades/AFL–CIO commented
that while they would have preferred to
see the threshold for large
establishments dropped even further,
they recognized that the reduction from
250 to 100 from the 2016 final rule is
significant and will assist their industry
and others in capturing additional data
(Docket ID 0073).
PO 00000
Frm 00016
Fmt 4701
Sfmt 4700
The National Nurses Union
commented, ‘‘An OSHA rule requiring
reporting from establishments with 100
or more employees is a superior
threshold to the 250-employee
threshold. As an example, if the
establishment threshold was 250
employees, 299 hospitals in California
would have had to comply with
electronic reporting requirements in
2021, covering over 378,000 hospital
employees. Applying a reporting rule to
establishments with 100 or more
employees would add an additional 73
hospitals and protect nearly 12,017
additional hospital employees in
California alone. This is a significant
increase in the data available on
workplace hazards’’ (Docket ID 0064).
Additionally, the Communication
Workers of America commented, ‘‘We
support OSHA’s proposal to be
inclusive of more workplaces by
changing the definition of a ‘‘large’’
establishment to those with 100 or more
employees, rather than 250 employees.
We support large establishments
submitting certain information from all
three recordkeeping forms. . . .’’
(Docket ID 0092).
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
Other commenters opposed or
questioned the 100-or-more employee
threshold (e.g., Docket IDs 0030, 0050,
0071, 0076, 0087, 0094). Of those
commenters who opposed the proposed
threshold, most argued that OSHA
should set the threshold higher than 100
employees. For example, the Employers
E-Recordkeeping Coalition (Coalition)
commented that, to the extent
employers in industries designated in
appendix B are required to submit
information from their OSHA Form 300,
301, and 300A, such a requirement
should apply to employers with 250 or
more employees, not employers with
100 or more employees. The Coalition
asserted that, ‘‘OSHA does not appear to
provide any rationale for lowering the
threshold of what it considers to be
‘‘larger employers’’ from those with 250
or more’’ (Docket ID 0087). Similarly,
the National Propane and Gas
Association (NPGA) commented that
OSHA does not explain its rationale for
lowering the size threshold to 100
employees (Docket ID 0050).
OSHA agrees with commenters who
supported the proposed 100-or-moreemployee threshold and disagrees with
commenters who stated that the
employee threshold should be higher
than 100 or more employees (e.g., 250
or more employees). Increasing the
threshold would reduce the number of
establishments required to
electronically submit information from
their 300 and 301 forms, as well as
decrease the number of injury and
illness case reports collected by the
agency. For example, increasing the size
threshold from 100 or more employees
to 250 or more employees would reduce
the number of establishments required
to electronically submit 300/301 data by
67 percent (i.e., from 52,092
establishments to 17,106
establishments). Likewise, raising the
threshold from 100 or more employees
to 250 or more employees would reduce
the number of reported injury and
illness cases by 32 percent (i.e., from
766,257 cases to 523,562 cases). This
reduction in the amount of collected
information would significantly limit
OSHA’s ability to identify and target
hazardous occupations and workplaces.
Also, a reduction in the amount of
collected information would adversely
impact the benefits (discussed
elsewhere) of making this information
available to employees, the public, and
other interested parties. OSHA is
concerned that an increase in the
employee threshold, along with the
corresponding reduction in publicly
available injury and illness information,
will hinder efforts to prevent
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
occupational injuries and illnesses in
the future.
Moreover, the question is more
complex than merely whether to
‘‘increase’’ or ‘‘decrease’’ the
establishment-size threshold, because
the scope of industries required to
submit the Form 300 and 301 data has
also changed between the 2016 rule and
this one. Under the 2016 final rule, all
establishments that (1) had 250 or more
employees at any time during the
previous calendar year, and (2) were
required to keep records pursuant to
part 1904 were required to submit
Forms 300 and 301. In contrast, in this
rulemaking, OSHA proposed requiring
establishments with 100-or-more
employees to submit only if they are
classified in one of the high-hazard
industries listed in appendix B. This
approach—lowering the establishmentsize threshold to capture enough
workplaces and cases to allow
appropriate targeting and analysis while
focusing in on particularly hazardous
industries—is fully distinguishable from
the agency’s approach in 2016. OSHA’s
approach in this rulemaking focuses on
higher hazard industries and provides
the agency with information on more
establishments, as compared to the
number of establishments which would
have been required to submit their
Forms 300 and 301 information under
the 2016 final rule. The increase in the
number of establishments required to
submit information, relative to the 2016
final rule, will allow OSHA to identify
more places where intervention will be
beneficial, including targeting its
compliance assistance efforts.
Other interested parties recommended
that OSHA conduct additional analysis
to determine which establishments
should be required to electronically
submit Form 300/301 data to OSHA. For
example, the American Industrial
Hygiene Association (AIHA)
commented, ‘‘There should be an
analysis of the impact of any company
size selected to report electronically.
There are at least two considerations
here: (1) The number of responses that
will be received if the threshold is
lowered to 100 (there is also a question
of whether OSHA can manage an
associated increase in reports); and (2)
Most companies in the U.S. are small
businesses and new regulations such as
this can have an indirect impact on
them. Will companies of this size have
the capability and IT expertise to
participate in electronic reporting?
OSHA should conduct a thorough
analysis before imposing new reporting
requirements on small businesses.’’
(Docket ID 0030). The Sheet Metal & Air
Conditioning Contractors’ National
PO 00000
Frm 00017
Fmt 4701
Sfmt 4700
47269
Association submitted similar
comments (Docket ID 0046).
OSHA agrees with AIHA that these
factors are important in determining the
appropriate threshold for data
submission and considered them in
setting the threshold. As to the first
consideration noted by AIHA, the
number of responses, as noted above,
OSHA estimates that 52,092
establishments will be required to
electronically submit Form 300/301 data
each year pursuant to § 1904.41(a)(2) of
the final rule. OSHA further estimates
that those establishments would
annually submit 766,257 injury and
illness cases. In choosing the proposed
threshold, OSHA sought to balance the
utility of the information collection for
enforcement, outreach, and research, on
the one hand, and the burden on
employers to provide the information to
OSHA, on the other hand. And OSHA
expects that the 100-employee threshold
will be an easy threshold for employers
to understand and keep track of.
Further, as discussed in Section III.B. of
this Summary and Explanation, OSHA
has determined that it is capable of
managing, analyzing, and utilizing the
data it will receive pursuant to this
requirement.
As to AIHA’s second factor, whether
establishments with 100 or more but
fewer than 250 employees have the
capability and IT expertise to participate
in electronic reporting, OSHA has also
determined that such establishments are
capable of submitting these reports to
OSHA. Significantly, because the
industries that appear in appendix B are
a subset of those in appendix A and the
previous version of § 1904.41(a)(2)
required all establishments with 20–249
employees which are classified in an
industry listed in appendix A to submit
information from their Form 300A
annually to OSHA, all of the
establishments which would be
required to submit information from
their Forms 300 and 301 to OSHA under
the proposal were already required to
submit information from their Forms
300A. In other words, the
establishments covered under the
proposal (and this final rule) already
have experience submitting (and thus
the ability to submit) such data to OSHA
electronically. For more details on this
issue, see Section IV, Final Economic
Analysis.
OSHA also received comments
questioning its preliminary decision to
use establishment size as a threshold
criterion. For example, the National
Safety Council (NSC) supported a riskbased approach, commenting that larger
operations are not inherently less safe
and that OSHA should move to a risk-
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
47270
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
based approach to protect workers. It
argued, ‘‘OSHA should evaluate factors
like the degree of the hazard, the
magnitude of exposure (number of
workers exposed and duration of
exposure), and the relative risk at the
site (likelihood of an incident based on
current hazards and the level of controls
being applied to those hazards and past
experience). These data points should
govern reporting requirements and
guide OSHA inspections, consulting
and compliance resources.’’ (Docket ID
0041).
OSHA agrees that using a risk-based
approach to collecting data can be
valuable. Indeed, as discussed in
Section III.B.14.c in this Summary and
Explanation, OSHA anticipates this to
be one of the benefits of the data
collection for the agency. That is, the
data collection will provide OSHA with
establishment-specific, case-specific
information the agency can use to
evaluate risk factors and guide OSHA
activities based on risk factors.
However, in order to obtain this
information, OSHA must first set the
criteria for collecting the information,
through this final rule. Risk is one of the
reasons the agency proposed using a
Forms 300 and 301 data collection
criteria based on industry hazard level
as well as establishment size, i.e., it is
reasonable to assume that
establishments in industries with higher
injury/illness rates are higher-hazard
industries with higher risks. As
discussed elsewhere in this preamble,
the list of higher-hazard industries in
final appendix B to subpart E is based
on several criteria, including the
analysis of average injury and illness
rates over several years. OSHA believes
this approach represents a practical way
of evaluating risks and hazards in
specific industries. OSHA also believes
it would be difficult to calculate an
appropriate employee threshold based
on the degree of hazard or the
magnitude of exposure at individual
establishments, especially when such
case-specific data are not now available
to the agency. Moreover, OSHA expects
that including a numerical threshold of
100 or more employees is easier for
employers to understand and provides
certainty for the regulated community.
The inclusion of a numerical threshold
with or without an additional industry
criterion is a familiar part of OSHA’s
recordkeeping regulations (see, e.g., 29
CFR 1904.1(a)(1); previous 29 CFR
1904.41(a)(1)–(2)). Further, OSHA
believes that the 100-employee
threshold balances the burden on
employers with the benefits to worker
safety and health.
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
Other commenters questioned
OSHA’s proposed 100-employee
threshold because the agency did not
choose that threshold in the 2016
rulemaking. For example, the Coalition
pointed out that ‘‘OSHA considered a
lower threshold of 100 or more
employees, and expressly denied that
approach in the 2016 rulemaking’’
(Docket ID 0087). In response to this
comment, OSHA notes that the
alternative (Alternative E) in the 2013
NPRM (the NPRM which lead to the
2016 final rule) to which the Coalition
refers differs from the requirement
OSHA proposed in this rulemaking.
Specifically, with regard to Forms 300
and 301, Alternative E would have
required all establishments which were
required to keep records and had 100 or
more employees at any time during the
previous calendar year to submit Form
300 and 301 data to OSHA annually (see
78 FR 67264, 67281). However, in this
rulemaking, OSHA proposed for only a
subset of establishments with 100 or
more employees (i.e., those whose
industries appear on appendix B) to
submit the data. OSHA estimated that it
would receive 1,170,000 injury and
illness cases with incident report
(OSHA Form 301) and Log (OSHA Form
300) data under Alternative E (81 FR
29636). OSHA further estimated that
120,000 establishments would have
been required to submit data under the
alternative (81 FR 29636). Ultimately, in
2016, OSHA agreed with commenters
who stated that reducing the size
criterion to 100 would increase the
burden on employers with diminishing
benefit.
OSHA’s 2016 decision to reject
Alternative E was based on the
employer burden and benefits under
that alternative. As discussed above,
under this rule, OSHA estimates that
only 52,092 establishments will be
required to electronically submit Form
300/301 data each year and those
establishments would annually submit
only 766,257 injury and illness cases.
Thus, an estimated 67,908 fewer
establishments will be required to
submit data under this rule, as
compared to the estimate of those that
would have been required to submit
under Alternative E in the 2016 final
rule, and approximately 403,000 fewer
cases are estimated to be submitted than
were estimated to have been submitted
under that alternative. The number of
cases estimated to be submitted under
this final rule is similar to that which
was estimated to have been required to
be submitted under the 2016 final rule
(720,000 in 2016). Consequently, OSHA
finds that its rejection of Alternative E
PO 00000
Frm 00018
Fmt 4701
Sfmt 4700
in the 2016 rulemaking has no bearing
on its decision to use a 100-employee
threshold in this rulemaking. In fact, the
agency’s finding that it could handle
data from 720,000 cases in 2016 actually
supports its finding that it can handle a
similar number of records in this
rulemaking.
The Phylmar Regulatory Roundtable
(PRR) objected to OSHA’s proposed 100or-more-employee threshold for a
different reason than the above
commenters. Specifically, it maintained
that the requirement for establishments
with 100 or more employees in certain
industries could result in inaccurate or
misleading information. In support of
this point, it stated that ‘‘an
establishment with few employees may
have a high case rate purely based on
numbers which is not reflective of
workplace hazards or employer
commitment. High injury and illness
rates are not an automatic indication
that the company or establishment is
operating an unsafe environment’’
(Docket ID 0094).
OSHA disagrees with PRR’s assertion
about the 100-or-more employee
threshold resulting in misleading
information. While a small number of
injuries or illnesses could have a
disproportionate effect on incidence
rates in an establishment with a small
number of employees, this is unlikely in
larger establishments with 100 or more
employees. Incidence rate of injuries
and illnesses are computed from the
following formula: Incidence rate per
100 full-time employees = (Number of
injuries and illnesses × 200,000)/
Employee hours worked. The 200,000
figure in the formula represents the
number of hours 100 employees
working 40 hours per week, 50 weeks
per year would work, and provides the
standard base for calculating incidence
rate for an entire year. Mathematically,
the effect of a small change in the
numerator (number of injuries and
illnesses × 200,000) on the incidence
rate becomes smaller as the
denominator (employee hours worked)
becomes larger, and the more employees
there are, the larger the denominator
will tend to be. Two recordable injuries
or illnesses instead of one, at an
establishment with 20 full-time
employees, would increase the TCR
from 5.0 to 10.0; in contrast, at an
establishment with 100 full-time
employees, the TCR would only
increase from 1.0 to 2.0. As discussed
above, the TCR threshold for industry
inclusion in Appendix B is 3.5; an
establishment with 100 full-time
employees would have to have at least
4 recordable injuries in a year to exceed
this threshold. In addition, as discussed
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
elsewhere, OSHA plans to publish
narrative information from the Form 300
and 301 (after identifying and removing
information that could reasonably be
expected to identify individuals
directly), which will enable the users of
the data to determine the relevance of
the data. In fact, OSHA believes that the
inclusion of more information about the
specific cases (rather than the summary
information from Forms 300A) will
mitigate against potential
misunderstandings, because the public
can use that information to determine
the circumstances that led to the injury
or illness (e.g., through showing that a
particular injury or illness occurred for
a reason other than a hazard in the work
environment). This is further discussed
below in Section III.B.4 of this Summary
and Explanation, which also explains
additional steps OSHA plans to take to
provide information to the public to aid
their understanding of the data.
OSHA also received a comment from
NPGA opposing the proposed 100-ormore employee threshold because it is
not included in any other portion of
OSHA’s recordkeeping regulations
(Docket ID 0050). NPGA’s statement is
accurate: OSHA’s proposal in this
rulemaking is the first time OSHA has
specifically tied a part 1904
recordkeeping requirement to a 100-ormore-employee threshold. However,
OSHA does not think the presence of a
new threshold is problematic. As stated
above, a 100-employee threshold is easy
for establishments to understand and
balances OSHA’s need for the data with
the burden on establishments.
Moreover, OSHA expects that
establishments are familiar with this
threshold from their experience with
other Federal standards. For example,
private sector employers with 100 or
more employees are required to file an
EEO–1 Component 1 Report with the
Equal Employment Opportunity
Commission (EEOC) and the Office of
Federal Contract Compliance Programs
(OFCCP), U.S. Department of Labor,
every year (see 42 U.S.C. 2000e–8(c); 29
CFR 1602.7–.14; 41 CFR 60–1.7(a)).
Other commenters maintained that
the 100-employee threshold was not
inclusive enough. For example, the
AFL–CIO commented that if OSHA did
not adopt its recommendation to require
all establishments with 100 or more
employees to submit data from all their
recordkeeping forms (rather than
establishments with 100 or more
employees which are also classified in
an industry listed in appendix B)
(comment and OSHA’s response
discussed below), then OSHA should
adopt the provisions contained in the
2016 final rule (i.e., require all
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
establishments with 250 or more
employees to submit data from Forms
300A, 300, and 301). It argued that ‘‘[a]t
a minimum’’ OSHA should require
establishments with 250 or more
employees to submit data from the
Forms 300A and 300 (Docket ID 0061).
The United Food and Commercial
Workers International Union submitted
a similar comment (Docket ID 0066).
OSHA disagrees with commenters
who suggested that OSHA should adopt
a threshold below 100 or more
employees or eliminate the threshold
completely. OSHA acknowledges
commenters who stated that a lower
threshold would result in an increase in
the amount of injury and illness data
collected by the agency. However, the
agency notes that any reduction in the
employee size threshold would increase
the number of establishments required
to electronically submit Form 300 and
301 data, and this would result in an
increased burden to smaller employers.
Again, the agency chose the 100employee threshold by balancing the
utility of the information collection for
enforcement, outreach, and research, on
the one hand, and the burden on
employers to provide the information to
OSHA, on the other hand. The 100employee threshold will provide
enough case-specific information, about
enough establishments, for wide-spread
targeted outreach and enforcement
while minimizing the burden on
employers, especially smaller
employers, as required by Section 8(d)
of the OSH Act. In addition, OSHA
notes that the 100-or-more-employee
threshold is appropriate since larger
establishments typically have more
resources to support electronic
submission of case-specific injury and
illness information to OSHA. OSHA
also finds that the 100-or-employee
threshold is appropriate because there is
a lesser risk of employee reidentification
from information published regarding
larger establishments. (For more
information on this issue, see the
discussion of indirect identification in
Section III.B of this Summary and
Explanation.)
In summary, after considering the
entire record on the issue of the size
threshold for submitting OSHA Form
300 and 301 data, OSHA agrees with
commenters who supported the 100-ormore-employee threshold for
determining which establishments must
electronically submit information from
their 300 and 301 forms. The 100-ormore-employee threshold will allow
OSHA to strike an appropriate balance
between the total number of
establishments required to submit casespecific data to OSHA and the total
PO 00000
Frm 00019
Fmt 4701
Sfmt 4700
47271
number of injury and illness cases
collected, on the one hand, with burden
on employers (especially smaller
employers) on the other. As discussed
above, as well as in Section IV, Final
Economic Analysis, OSHA believes that
establishments with 100 or more
employees have the necessary personnel
and IT resources to comply with the
electronic submission requirement in
final § 1904.41(a)(2). By setting the
threshold at 100 or more employees and
limiting the covered industries to the
higher hazard industries listed in final
appendix B to subpart E, the agency is
focusing its data collection efforts in a
more targeted manner. This approach is
consistent with OSHA’s stated intention
in the preamble to the proposed rule to
balance the utility of the information
collection for enforcement, outreach,
and research, on the one hand, and the
burden on employers to provide the
information to OSHA, on the other
hand.
Accordingly, like the proposed rule,
final § 1904.41(a)(2) requires
establishments with 100 or more
employees that are in the designated
industries listed in appendix B to
subpart E to electronically submit data
from their 300 and 301 forms to OSHA
once a year.
b. The Criteria for Determining the
Industries in Appendix B to Subpart E
As stated above, OSHA proposed to
require establishments with 100 or more
employees at any time during the
previous calendar year to annually
submit their Form 300 and 301 if they
are in an industry listed in proposed
appendix B to subpart E. The criteria for
including the designated industries in
proposed appendix B to subpart E was
based on a three-year average rate of
Total Case Rate (TCR) in the BLS SOII
for 2017, 2018, and 2019, of at least 3.5
cases per 100 full-time-employees. In
the preamble to the proposed rule,
OSHA requested comment on whether
TCR is the appropriate method for
determining the list of industries in
proposed appendix B to subpart E. In
addition, OSHA specifically asked, ‘‘Is
Total Case Rate (TCR) the most
appropriate incidence rate to use for
proposed appendix B to subpart E, or
would the Days Away Restricted or
Transferred (DART) rate be more
appropriate?’’ (87 FR 18546).
The TCR represents the number of
work-related injuries and illnesses per
100 full-time-employees during a oneyear period. It is based on all workrelated injuries and illnesses recorded
on the OSHA 300 Log resulting in death,
days away from work, work restriction
or transfer to another job, and other
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
47272
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
recorded cases (e.g., cases resulting in
medical treatment beyond first aid). On
the other hand, the DART rate is based
only on the number of work-related
injuries and illnesses recorded on the
OSHA 300 Log resulting in days away
from work, restricted work activity or
transfer to another job.
A number of commenters opined on
the appropriate criteria for determining
the industries designated in appendix B
to Subpart E. Many of these commenters
supported the proposed use of the TCR
(e.g., Docket IDs 0030, 0040, 0047, 0048,
0054, 0064, 0066, 0084, 0089). For
example, AIHA indicated its support for
using the TCR in the final rule, adding
that, ‘‘All incident rate metrics suffer
from inaccuracy due to a lack of
understanding of complex and
intricately nuanced recording rules. The
TCR is the most widely used and least
misunderstood of these measures in the
United States’’ (Docket ID 0030). Also,
the National Nurses Union stated that
TCR is a more appropriate metric than
a DART-rate-only metric because it
includes all types of recorded injuries
and illnesses, not just those where an
employer gave an injured or ill
employee ‘‘time to rest and recover’’
(Docket ID 0064).
Other commenters argued against
OSHA’s proposed use of the TCR and
for the use of a DART-rate metric. For
example, the International Bottled
Water Association (IBWA) and the
Coalition asserted that, per OSHA’s
preamble, ‘‘[a]ppendix B is meant to
reflect employers in higher hazard
industries. While a higher DART may
reflect such industries to some extent, a
higher TCR does not. This is because the
TCR captures relatively minor
incidents—those that do not result in
days away from work, job restriction, or
transfer’’ (Docket IDs 0076, 0087). Both
of these commenters expressed concern
that ‘‘for example, under the proposal,
employers in industries with very few
or no ’major’ incidents (i.e., those that
result in days away from work, job
restriction, or transfer), but a larger
number of ’minor’ incidents will
unfairly be included in [a]ppendix B’’
(Docket IDs 0076, 0087). On the other
hand, other commenters, such as AIHA,
argued against the use of the DART rate
(Docket ID 0030).
Other commenters suggested other
possible metrics in their comments. For
example, NIOSH commented, ‘‘TCR
may be the most appropriate single
criterion for selection of industries;
however, NIOSH believes that DART
(Days Away, Restricted, or Transferred)
and fatality rates are also valuable for
determining the magnitude of injury
risks in specific industries. There are
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
two basic reasons why some industries
would rank differently based on TCR
than they would on DART or fatality
rate. First, the nature of work differs
among industries and can result in
different ratios of mild to severe
injuries. While the TCR represents
mostly relatively mild injuries, the
severest injuries are the most important
targets of prevention and account for a
very large share of the costs of injuries
in the workers’ compensation system.
Second, some industries may more fully
report injuries than others and so tend
to have a higher ratio of TCR to DART
or fatality rate.’’ (Docket ID 0035,
Attachment 2). The International
Brotherhood of Teamsters concurred
with NIOSH’s comment (Docket ID
0083). AIHA offered a fourth possible
metric: cases with days away, observing,
‘‘One other candidate, cases with days
away, is perhaps the most intuitive
metric and most closely (though not
exactly) aligned with workers’
compensation systems’’ (Docket ID
0030).
Finally, AFL–CIO ‘‘urge[d] OSHA to
require all large establishments with 100
or more employees, currently subject to
recordkeeping standards, to
electronically report detailed injury and
illness information . . . as the value of
these data has been thoroughly
explained by the agency and record of
evidence in the 2016 final rule’’ (Docket
ID 0061). In other words, AFL–CIO
asked OSHA to revise the proposed
provision to eliminate the requirement
that only those establishments in
industries listed in appendix B would
be required to report. In AFL–CIO’s
recommendation, the only limitations
would be establishment size and being
routinely required to keep injury and
illness records under part 1904.
Having reviewed the information in
the record, OSHA rejects AFL–CIO’s
suggestion to require all large
establishments with 100 or more
employees (without regard to industry
hazardousness) to submit information.
In the provisions related to the
electronic submission of Forms 300 and
301, OSHA has decided that it is
appropriate to focus on the most
hazardous industries. Such a focus is a
regular feature of OSHA’s recordkeeping
regulations. For example, since 1982,
OSHA has exempted some low-hazard
industries from maintaining injury and
illness records on a regular basis (see
https://www.osha.gov/enforcement/
directives/cpl-02-00-135). This partial
exemption for low-hazard industries
currently appears in 29 CFR 1904.2.
Similarly, since the 2016 final rule,
OSHA has only required establishments
with 20 or more employees but fewer
PO 00000
Frm 00020
Fmt 4701
Sfmt 4700
than 250 employees to submit
information from Form 300A if those
establishments are classified in an
industry listed in appendix A to subpart
E to part 1904, i.e., if they are higher
hazard industries.
Focusing some recordkeeping
requirements on higher hazard
industries has the benefit of enabling
OSHA to better focus its attention where
it might have the highest impact, and
lessens the burden on less hazardous
industries. OSHA finds that such a
balance is appropriate. Moreover, the
agency will continue receiving
information from Form 300A from all
recordkeeping establishments with 250
or more employees. If the information
from submitting establishments’ Forms
300A, or from the BLS SOII and/or
Census of Fatal Occupational Injuries
(CFOI), were to indicate that industries
not listed on appendix B were becoming
more hazardous, OSHA could consider
engaging in notice-and-comment
rulemaking to update appendix B.
Further discussion on the possibility of
updating appendix B appears below in
this section of the Summary and
Explanation.
As to the appropriate criteria, OSHA
has decided to use several data sources
to populate the list of higher hazard
industries in final appendix B to subpart
E. Specifically, OSHA finds that the
TCR, the DART rate, and the fatality rate
are all important methods of identifying
higher hazard industries. As noted by
some commenters, while it is widely
used in the United States and includes
all types of recorded injuries and
illnesses, the TCR also includes data
concerning less severe injuries and
illnesses (i.e., cases that resulted in
medical treatment beyond first aid but
did not involve loss of consciousness
and/or did not result in restricted work
or transfer to another job, days away
from work, or death). OSHA still
considers the TCR to be an appropriate
rate to use for determining the list of
industries in appendix B to subpart E,
especially since covered establishments
will be required to electronically submit
information to OSHA on all their
recordable cases (i.e., total cases).
However, OSHA also agrees with
commenters who suggested that
information specifically about severe
injuries and illnesses is a reliable
indication of whether a specific
industry is a high hazard industry. As
NIOSH noted, the nature of work differs
among industries, and this can result in
different ratios of less severe and more
severe injuries and illnesses.
Accordingly, OSHA has decided to
use the DART rate and the fatality rate
in the BLS CFOI in addition to the TCR.
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
Adding the DART rate, which measures
severe injuries and illnesses resulting in
days away from work, restricted work
activity, or transfer to another job, will
ensure that industries with higher rates
of severe injuries are included, while
using the TCR will ensure that OSHA is
capturing industries with higher injury
and illness rates overall (including less
severe injuries and illnesses and, as
discussed by NNU, more serious
injuries and illnesses in establishments
where an employer does not give the
injured or ill employee ‘‘time to rest and
recover’’) (see Docket ID 0084).
Adding the fatality rate will also be
helpful because fatalities are more
consistently reported than other injuries
and illnesses. CFOI produces
comprehensive counts of workplace
fatalities in the United States. It is a
Federal-State cooperative program that
has been implemented in all 50 States
and the District of Columbia since 1992.
To compile counts that are as complete
and accurate as possible, the census
uses multiple sources to identify, verify,
and profile fatal worker injuries. CFOI
includes specific information about
each workplace fatality, including
information about occupation and other
worker characteristics, equipment
involved, and circumstances of the
event. All of the information in the
CFOI is obtained by cross-referencing
the source records, such as death
certificates, workers’ compensation
reports, and Federal and State agency
administrative reports. To ensure that
fatalities are work-related, cases are
substantiated with two or more
independent source documents, or a
source document and a follow-up
questionnaire. The CFOI fatality rate is
based on the number of deaths per
100,000 full-time-or-equivalent
employees. Adding the fatality rate from
CFOI to the metrics used to determine
which industries should report in this
final rule allows OSHA to obtain data
from industries with low non-fatal
injury and illness rates but high fatality
rates.
OSHA does not think that the metric
offered by AIHA (cases with days away,
or DAFW) is appropriate for this
rulemaking. The DAFW rate is a subset
of the DART rate. It does not include
cases in which an ill or injured
employee continues to work but is
engaged in restricted activities or job
transfer. This is obviously more possible
in some establishments and industries
than in others. For example, there might
be no alternative for restricted work or
job transfer at a nursing care facility for
a patient-care worker who is unable to
perform their regular job duties due to
an injury; thus, the injury would result
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
in a DAFW case. In contrast, it might be
possible to temporarily reassign an
injured production-line worker to a
different job on the production line that
accounts for the restrictions due to the
injury; thus, the injury would not result
in a DAFW case. However, both
injuries—the days away from work case,
as well as the restricted activities/job
transfer case—would be DART cases.
Thus, the DART rate is a better indicator
of hazardousness across establishments
and industries.
Given the concerns raised by
commenters about specific injury and
illness rates, and in order to accurately
identify higher hazard industries, OSHA
decided to use several factors in
determining the list of industries in
final appendix B to subpart E. In
addition to using the TCR, OSHA
analyzed industry hazardousness based
on the DART rate and the fatality rate.
OSHA believes that using this approach
more comprehensively identifies higher
hazard industries. The agency also finds
that this combination of factors furthers
the agency’s intention of balancing the
number of establishments covered and
injury and illness cases reported with
the burden on employers, as well as not
expanding the submission requirement
beyond establishments that are already
required to report information from the
Form 300A. OSHA again notes that all
of the industries in final appendix B to
subpart E are also included in final
appendix A to subpart E.
c. Cut-Off Rates for Determining the
Industries in Appendix B to Subpart E
Having determined the appropriate
metrics (TCR, DART, and fatality rates),
OSHA now turns to the appropriate cutoff rates for selecting the designated
industries in appendix B to subpart E
using the chosen metrics. As discussed
above, OSHA proposed including those
industries which had a 3-year-average
rate of total recordable cases (Total Case
Rate, or TCR) in the BLS SOII for 2017,
2018, and 2019, of at least 3.5 cases per
100 full-time-equivalent employees.
Some commenters argued that the
proposed cut-off (3.5 per 100 workers)
was too low (e.g., Docket IDs 0054,
0076, 0087). For example, the
Employers E-Recordkeeping Coalition
(‘‘Coalition’’) argued that, whether the
DART or TCR rate is used, ‘‘OSHA
should establish a higher threshold
value than it proposes.’’ The Coalition
explained that the proposed threshold
TCR value of 3.5 was based on BLS SOII
data for 2017, 2018, and 2019, but that
‘‘BLS data—specifically data
representing the highest rates for cases
with days away from work, restricted
work activity, or job transfer (DART)—
PO 00000
Frm 00021
Fmt 4701
Sfmt 4700
47273
from the same time period (2017, 2018,
2019) demonstrates that the lowest
incidence rate was 4.2.’’ It further
observed, ‘‘Similarly, even if use of the
TCR for purposes of determining those
industries that should be included in
[a]ppendix B is maintained in the final
rule, a higher threshold value should be
used. According to BLS data
representing highest rates for total cases
from the same time period (2017, 2018,
2019), the lowest incidence rate was
6.8. . . Accordingly, to the extent the
TCR is used for purposes of determining
those industries that should be included
in [a]ppendix B, the threshold value
should be set at no less than 6.8. ’’
(Docket ID 0087). IBWA submitted a
similar comment (Docket ID 0076).
Additionally, Dow Chemical Company
argued that OSHA should use a TCR
‘‘triggering’’ rate that is substantially
higher than the private industry average
for full time equivalent workers (which
was 2.8 in 2019 and 2.7 in 2020). Dow
explained, ‘‘This will reduce the burden
on industry sectors who have a TCR at
or below private industry average’’
(Docket ID 0054).
Other commenters suggested that the
proposed cut-off of 3.5 was too high
(e.g., Docket IDs 0037, 0047, 0048, 0049,
0066, 0069, 0079, 0084). Several
commenters urged OSHA to include
more industries in appendix B by
lowering the cut-off to the three-year
national average for private industry.
These commenters expressed concern
about many hazardous workplaces and
high-risk occupations in industries that
are above the national average for
private industry but below the proposed
3.5 cut-off, including many industries
with establishments operated by the
nation’s major employers (Docket IDs
0030, 0047, 0048, 0049, 0066, 0069,
0084). For example, the Strategic
Organizing Center (SOC) ‘‘applaud[ed]
OSHA’s decision to lower the
employment threshold for report[ing]
the 300/301 data . . . [but] urge[d]
OSHA to reject the use of such a high
rate threshold for the inclusion of the
specific industry codes’’ (Docket
ID0079). In support of this
recommendation, SOC argued that
OSHA had not justified the proposed
TCR level other than projecting that it
would result in a volume of cases
(roughly 750,000) similar to the 2016
rule (Docket ID 0079).
With regard to the appropriate value
for triggering the inclusion of industries
in appendix B to subpart E, the final
rule, like the proposed rule, has a cutoff of 3.5 cases per 100 employees. As
reflected in the comments, the 3.5 cutoff value, which OSHA proposed,
represents a balance between more
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
47274
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
information and more employer burden
with a lower cut-off, and less
information and less employer burden
with a higher cut-off. For example, the
cut-offs suggested by the Employers ERecordkeeping Coalition in their
comment (Docket ID 0087) would only
result in the submission of an estimated
90,395 cases from 3,087 establishments
(using the 6.8 TCR rate taken from BLS
table 19SNR01 ‘‘Highest incidence rates
of total nonfatal occupational injury and
illness cases’’, 2019) or an estimated
72,143 cases from 3,946 establishments
(using the 4.2 DART rate taken from
BLS table 19SNR02 ‘‘Highest incidence
rates of nonfatal occupational injury and
illness cases with days away from work,
restricted work activity, or job transfer’’,
2019).4 The Coalition’s proposal would
severely restrict the list of industries
which would be required to submit data
pursuant to this rulemaking, which
would, in turn, restrict OSHA’s ability
to target its enforcement and
compliance assistance efforts beyond
that small subset of industries. It would
also limit the information available to
interested parties for occupational safety
and health purposes, e.g., to evaluate
occupational safety and health trends
and patterns. Consequently, it would
drastically decrease the benefits of the
rule.
In addition, for this final rule, OSHA
has chosen to use a DART rate of 2.25
per 100 employees and CFOI fatality
rate of 5.7 deaths per 100,000 full-timeor-equivalent employees) to identify
higher hazard industries. Both represent
1.5 times the national average for
private industry for the respective rates.
OSHA believes that these thresholds,
which are well above the national
averages for private industry, represent
an appropriate cut-off for determining
whether a given industry is a higher
hazard industry. As discussed below,
adding the DART criterion and the CFOI
fatality criterion adds 6 industries to
Appendix B (3 per criterion) that are
below the TCR threshold; this
addresses, to some degree, the concerns
expressed by commenters about
hazardous workplaces that are below
the TCR threshold.
Moreover, OSHA projects that the use
of these cutoffs will enable it to receive
Form 300 and 301 data on
approximately 750,000 cases of injuries
and illnesses per year. Based on the
record of the 2016 rulemaking, OSHA
4 See https://www.bls.gov/iif/nonfatal-injuriesand-illnesses-tables/soii-summary-historical/
supplemental-table-1-2019-national.xlsx for the
TCR table and https://www.bls.gov/iif/nonfatalinjuries-and-illnesses-tables/soii-summaryhistorical/supplemental-table-2-2019-national.xlsx
for the DART table.
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
determined that roughly this amount of
cases would provide OSHA and others
with sufficient information to make
workplaces safer, while not
overburdening employers (see 87 FR
18543). Nothing in the record of this
rulemaking, or the comments OSHA had
received in the 2019 rulemaking, has
convinced OSHA that a different
balance should be struck in this rule.
However, as discussed above, the
agency has tailored the collection to
industries and establishments where the
information would be most useful for
improving workplace safety and health.
OSHA only proposed including
industries in appendix B if they also
appeared in appendix A; establishments
with 20 or more employees in industries
in appendix A have already been
required to electronically submit
information from their Form 300A since
2017. OSHA did not receive any
comments objecting to this part of the
proposal and has decided to retain this
requirement in the final rule. However,
several interested parties argued that
additional appendix A industries
should be listed in appendix B.
For example, the AFL–CIO
commented that the proposed exclusion
for large establishments in certain
industries from appendix B, ‘‘which
further limits the ability to identify
trends among workplace hazards in high
risk industries,’’ means that a significant
number of industries will not be
required to electronically submit OSHA
Form 300 and 301 data to OSHA,
including all of the utility sectors and
almost all of the construction
industry[,]’’ as well as a number of other
industries with large establishments
(Docket ID 0061). The Communications
Workers of America commented that
appendix B, like appendix A, should
include all industries in the
manufacturing sector (Docket ID 0092).
SOC similarly characterized OSHA’s
proposal to limit the requirement to
submit Forms 300 and 301 to industries
with a TCR of at least 3.5 as a decision
to ‘‘arbitrarily exclude entire hazardous
industries from the revised reporting
requirement.’’ In particular, SOC
objected to the exclusion of the hotel
industry, which, based on an analysis
by the National Employment Law
Project, SOC believes is a high hazard
industry (Docket ID 0079).
The AFL–CIO also commented that
the industry exclusions from appendix
B should not be based on BLS SOII data,
because the data are an inadequate
measure of industry hazardousness. It
argued that SOII data, even recent threeyear averages, is not an effective way to
ensure that high-hazard industries are
captured consistently in the data. The
PO 00000
Frm 00022
Fmt 4701
Sfmt 4700
AFL–CIO further asserted that,
‘‘[R]elying on these data to create
exclusion criteria ignores the known
limitations of current workplace injury
and illnesses data. Over the last decade,
studies have documented that the BLS
injury and illness survey fails to capture
an estimated 33–69% of work-related
injuries. Some of the undercount has
been attributed to injuries and illnesses
excluded from the BLS survey’s scope
and the design of the survey.’’ (Docket
ID 0061).
In response, OSHA notes that there is
no express exemption for specific
industries in appendix B to subpart E.
The list of industries in final appendix
B is based on objective injury and
illness data indicating that a specific
industry is a higher hazard industry.
Any exclusion or omission from the list
of designated industries in final
appendix B is solely the result of a given
industry not meeting the higher hazard
industry criteria specified above, criteria
which have been expanded under this
final rule based on public comments.
Moreover, OSHA disagrees with SOC’s
characterization of its preliminary
decisions regarding the industries
included on appendix B as ‘‘arbitrar[y]’’
(Docket ID 0079). As stated throughout
the preamble to this final rule, in
proposing a higher hazard cut-off level,
the agency was seeking to balance the
utility of the information collection for
enforcement, outreach, and research, on
the one hand, with the burden on
establishments on the other. That is not
to say that the agency found that it
would be economically infeasible for
industries other than those listed on
proposed or final appendix B to submit
their Form 300 or 301 data. Indeed, no
such finding is required here. Rather,
OSHA looked to see what amount of
information would be useful,
considering the number of
establishments that would be reporting
under the final rule, the number of cases
that would be submitted, the agency’s
capacity to review such information,
and the benefits that would stem from
the collection. The agency has
determined that at the current time,
requiring larger, high hazard
establishments to submit their data can
make a substantial impact on worker
safety and health, and the benefits of
making other employers do so as well is
less certain. OSHA has decided to focus
the rule on the establishments in
industries in which additional
information has the most promise of
addressing serious workplace hazards.
Further, OSHA notes that it will
continue to receive 300A data from very
large establishments (those with 250 or
E:\FR\FM\21JYR2.SGM
21JYR2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
ddrumheller on DSK120RN23PROD with RULES2
more employees) in all industries
required to keep records under part
1904 and can continue to use those data
for targeting purposes as well. OSHA
will monitor the data it receives, and in
the future, it may consider new noticeand-comment rulemaking to adjust its
approach in light of its experience with
the data collected under this final rule.
In addition, OSHA disagrees with the
comment from the AFL–CIO that BLS
SOII data are not a reliable method for
measuring industry hazardousness.
While BLS and its research partners
have conducted multiple studies which
indicate that SOII fails to capture some
cases, the BLS SOII is an important
indicator of occupational safety and
health and is the only source of
national-level data on nonfatal injuries
and illnesses that spans the private
sector and State and local governments.
Accordingly, OSHA is not making any
adjustments to the proposed appendix B
industries based on these comments.
However, as discussed in more detail
below, OSHA notes that the application
of the updated criteria for inclusion on
appendix B has led to six new
industries being added to appendix B.
These industries include NAICS 1133,
Logging, NAICS 4853, Taxi and
Limousine Services, and NAICS 4889,
Other Support Activities for
Transportation—all industries that
AFL–CIO identified as industries with
large establishments not included in
proposed appendix B that ‘‘should be
required to submit the injury and illness
data they are already required to
collect’’ (Docket ID 0061). Consequently,
the final rule responds to AFL–CIO’s
comment in part by adding three
additional NAICS codes based on the
objective criteria in this final rule.
d. Using the Most Current Data To
Determine Designated Industries
In the preamble to the proposed rule,
OSHA stated that the agency anticipated
that more current industry-level injury
and illness data from BLS, as well as
more establishment-specific injury and
illness information from the ITA, would
become available. OSHA therefore
explained that the agency may rely on
the most current data available, as
appropriate, for determining the list of
industries in appendix B to subpart E.
OSHA sought comment from the public
on whether the agency should use the
most current data when developing the
final rule (see 87 FR 18543).
The Phylmar Regulatory Roundtable
(PRR) Occupational Safety and Health,
OSH Forum commented that while it
agrees with the concept that the most
up-to-date information is the most
accurate and should determine the list
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
of industries, OSHA should not include
any new industries in appendix B to
subpart E in the final rule. According to
this commenter, doing so would not
allow impacted industries the
opportunity to comment on such
significant changes. Also, PRR
recommended that any additions to the
list of industries (or sub-sets of
industries) in appendix B that result
from OSHA analyzing updated data
should be conducted through notice and
comment rulemaking (Docket ID 0094).
In response, OSHA agrees with PRR
that the list of higher hazard industries
in appendix B to subpart E should be
based on data that was available at the
time of the proposed rule. OSHA notes
that, although the criteria used for
determining the list of higher hazard
industries in appendix B has been
modified for the final rule, all of the
data used to develop those criteria were
available at the time of the proposed
rule. Specifically, the cut-off threshold
used for the TCR rate is based on a 3year-average from 2017, 2018, and 2019,
the cut-off threshold for the DART rate
is based on a 3-year-average from 2017,
2018, and 2019, and the cut-off
threshold for the fatality rate is based on
data from 2019.
Additionally, in the preamble to the
proposed rule, OSHA stated that during
the 2016 rulemaking, the agency agreed
with commenters who stated that the
list of designated industries (listed in
appendix A at that time) should not be
updated each year. OSHA explained
that moving industries in and out of the
appendix each year would be confusing.
OSHA also stated that keeping the same
industries in the appendix each year
would increase the stability of the
system and reduce uncertainty for
employers. Accordingly, OSHA did not,
as part of the 2016 rulemaking, include
a requirement to annually or
periodically adjust the list of designated
industries to reflect more recent BLS
injury and illness data. OSHA also
committed that any such revision to the
list of designated industries in the
future would require additional notice
and comment rulemaking (see 87 FR
29641). However, OSHA again raised
the issue of periodic updating of the
designated industries in appendix B to
subpart E in the preamble to the
proposed rule in this rulemaking (see 87
FR 18543). Specifically, in Alternative
#2, OSHA explained the above
information regarding its decision in the
2016 rulemaking, explained that it
‘‘could regularly update the list of
designated industries in proposed
appendix B (industries where
establishments with 100 or more
employees must submit information
PO 00000
Frm 00023
Fmt 4701
Sfmt 4700
47275
from the Form 300 and 301 as well as
the 300A)—for example, every 6 years,
to align with the PRA approval
periods,’’ and then welcomed comment
on this issue (87 FR 18543).
OSHA received several comments on
this issue. In its comments, Dow stated
that it did not support the regular
updating of the list of designated
industries proposed in appendix B. Dow
argued, ‘‘Revising this list and moving
employers in and out would be
extremely confusing and introduce
unneeded instability into the data
collection process. If the list of
designated industries in appendix B
were to be revised, OSHA must provide
notice and a rulemaking comment
period’’ (Docket ID 0054). In contrast,
PRR commented that, if OSHA’s
assumption that the collection of
establishment-specific data will reduce
injury and illness rates, then the agency
should be able to analyze data for the
designated industries and consider
updating and removing industries from
the appendices (Docket ID 0094).
OSHA agrees with the comments
stating that the list of designated
industries in appendix B to subpart E
should not be updated on a regular
basis. As in the 2016 rulemaking, OSHA
finds that moving industries in and out
of appendix B to subpart E on a periodic
basis would be confusing for employers.
Employers are less likely to encounter
confusion when trying to determine
whether their establishments are
required to electronically submit data to
OSHA if the list of industries in
appendix B remains stable; appropriate
future adjustments, if any, would be
accomplished through notice and
comment rulemaking. OSHA also
believes that keeping the same
industries in appendix B to subpart E
will increase the stability of the
electronic submission system and
increase compliance with the
submission requirement. Accordingly,
OSHA will not, as part of this
rulemaking, include a provision for the
regular or periodic updating of the list
of industries in appendix B to subpart
E.
In making this decision, OSHA
acknowledges that industries’ injury
and illness rates may change. As PRR
commented, OSHA expects that this
rulemaking will aid in the decrease in
such rates. If OSHA’s ongoing analyses
of injury and illness rates show a
decrease in injuries and illnesses in
particular industries included on
appendix B, then OSHA may consider
removing those industries from
appendix B. Similarly, if OSHA learns
that injury and illness rates in industries
that are not included on appendix B are
E:\FR\FM\21JYR2.SGM
21JYR2
47276
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
rising, then OSHA may consider adding
those industries to appendix B.
However, in either case, OSHA would
propose any such change via noticeand-comment rulemaking, in part to
obviate the confusion mentioned above.
e. Industries Included in Final
Appendix B After Applying the Final
Criteria, Cut-Off Rates, and Data Sources
Based on the above decisions, final
appendix B to subpart E of part 1904
includes industries that:
1. had a 3-year-average rate of total
recordable cases (Total Case Rate, or
TCR) in the BLS SOII for 2017, 2018,
and 2019, of at least 3.5 cases per 100
full-time-equivalent employees, OR
2. had a 3-year-average DART rate in
the BLS SOII for 2017, 2018, and 2019
of at least 2.25 cases per 100 full-timeequivalent employees, OR
3. had a fatality rate in the BLS
Census of Fatal Occupational Injuries
(CFOI) of at least 5.7 deaths per 100,000
full-time-equivalent employees, AND
4. are included in appendix A to
subpart E. (All of the industries in
appendix B are also in appendix A.)
No industries were removed from
appendix B based on these criteria.
However, six new industries have been
added to appendix B. The new
industries are:
• NAICS 1133—Logging (2019 fatality
rate of 47.6),
• NAICS 1142—Hunting and
Trapping (three-year average DART rate
of 3.1),
• NAICS 3379—Other Furniture
Related Product Manufacturing (threeyear average DART rate of 2.27),
• NAICS 4239—Miscellaneous
Durable Goods Merchant Wholesalers
(2019 fatality rate of 15.6),
• NAICS 4853—Taxi and Limousine
Service (2019 fatality rate of 6.9), and
• NAICS 4889—Other Support
Activities for Transportation (three-year
average DART rate of 2.4).
The application of the criteria and
cut-offs to each industry that was added
to appendix B is summarized in the
following table:
NEW INDUSTRIES IN FINAL APPENDIX B
2017 NAICS 4-digit
1133
1142
3379
4239
4853
4889
.......................
.......................
.......................
.......................
.......................
.......................
Industry
Logging ...........................................................................................................................
Hunting and Trapping .....................................................................................................
Other Furniture Related Product Manufacturing ............................................................
Miscellaneous Durable Goods Merchant Wholesalers ...................................................
Taxi and Limousine Service ...........................................................................................
Other Support Activities for Transportation ....................................................................
All of the establishments with 100 or
more employees in these newly
included industries are also included in
appendix A to subpart E, and, therefore,
have been required to electronically
submit data from their 300A to OSHA
once a year since January 1, 2017.
Because of their inclusion in appendix
A, OSHA finds that each of these newly
included industries should have been
aware of this rulemaking. Moreover, in
the preamble to the proposed rule,
OSHA specifically indicated that the
criteria for determining higher hazard
industries might be modified for the
final rule (indeed, OSHA asked for
comment on this issue (see, e.g., 87 FR
18543, 18546)). Consequently, OSHA
finds that the proposal placed all six of
the newly added industries on notice
that they could be included in appendix
B in this final rule and, thus, these
industries had an opportunity to
comment on issues related to that
determination.
In the proposed rule, OSHA stated
that it was proposing one exception to
these criteria, for the United States
Postal Service (USPS), which is the only
employer in NAICS 4911 Postal Service.
OSHA explained BLS does not include
USPS in the SOII. However, under the
Postal Employees Safety Enhancement
Act (Pub. L. 105–241), OSHA treats the
USPS as a private sector employer for
purposes of occupational safety and
health, and establishments in NAICS
4911 (i.e., USPS establishments) with 20
or more employees are currently
required to electronically submit Form
300A information to OSHA. Using the
2017, 2018, and 2019 data submitted by
ddrumheller on DSK120RN23PROD with RULES2
NAICS
1111
1112
1113
1114
1119
1121
1122
1123
1129
1133
1141
1142
1151
1152
No
No
No
No
No
No
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.
Logging.
Fishing.
Hunting and Trapping.
Support Activities for Crop Production.
Support Activities for Animal Production.
21:22 Jul 20, 2023
Jkt 259001
PO 00000
Frm 00024
Fmt 4701
Sfmt 4700
..........
..........
..........
..........
..........
..........
High
DART
................
Yes.
Yes.
................
................
Yes.
High
fatality
rate
Yes.
Yes.
Yes.
USPS, OSHA calculated a TCR of 7.5 for
NAICS 4911. Because this TCR is greater
than the proposed 3.5 criterion for
designated industries in proposed
appendix B, OSHA included NAICS
4911 in proposed appendix B to subpart
E. In so doing, OSHA noted that NAICS
4911 was also included in both current
and proposed appendix A to subpart E
(87 FR 18543).
OSHA did not receive any comments
from interested parties regarding the
proposed inclusion of USPS in
appendix B. Due to the lack of an
objection to its inclusion and USPS’s
high TCR level (as calculated by OSHA),
the agency has decided to include USPS
in the final version of appendix B.
The final appendix B to subpart E is
as follows:
Industry
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
VerDate Sep<11>2014
High TCR
E:\FR\FM\21JYR2.SGM
21JYR2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
ddrumheller on DSK120RN23PROD with RULES2
NAICS
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
3379
4231
4233
4235
4239
4244
4248
4413
4422
4441
4442
4451
4522
4523
4533
4543
4811
4841
4842
4851
4852
4853
4854
4859
4871
4881
4883
4889
4911
4921
4931
5322
5621
Industry
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
VerDate Sep<11>2014
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 (except Aluminum) 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 (including Fixtures) Manufacturing.
Other Furniture Related Product Manufacturing.
Motor Vehicle and Motor Vehicle Parts and Supplies Merchant Wholesalers.
Lumber and Other Construction Materials Merchant Wholesalers.
Metal and Mineral (except Petroleum) Merchant Wholesalers.
Miscellaneous Durable Goods 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.
Taxi and Limousine Service.
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.
Other Support Activities for Transportation.
Postal Service.
Couriers and Express Delivery Services.
Warehousing and Storage.
Consumer Goods Rental.
Waste Collection.
21:22 Jul 20, 2023
Jkt 259001
PO 00000
Frm 00025
Fmt 4701
Sfmt 4700
E:\FR\FM\21JYR2.SGM
21JYR2
47277
47278
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
NAICS
5622
6219
6221
6222
6223
6231
6232
6233
6239
6243
7111
7112
7131
7211
7212
7223
Industry
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
Waste Treatment and Disposal.
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.
Vocational Rehabilitation Services.
Performing Arts Companies.
Spectator Sports.
Amusement Parks and Arcades.
Traveler Accommodation.
RV (Recreational Vehicle) Parks and Recreational Camps.
Special Food Services.
2. Information To Be Submitted
Section 1904.41(b)(9) of the final rule
specifies which information must be
submitted under § 1904.41(a)(2).
Consequently, comments on the
proposed information to be submitted
and OSHA’s responses to those
comments are discussed in Section III.D
of this Summary and Explanation, on
§ 1904.41(b)(9). However, because this
summary and explanation section
covers comments on issues that relate to
the information that establishments
must submit under § 1904.41(a)(2),
OSHA is briefly previewing those
requirements here. Specifically, as laid
out in question-and-answer format in
§ 1904.41(b)(9), establishments that are
required to submit information under
§ 1904.41(a)(2) of this section must
submit all the information from the
OSHA Forms 300 and 301 except for the
following case-specific information:
• Employee name (column B), from
the Log of Work-Related Injuries and
Illnesses (OSHA Form 300).
• Employee name (Field 1), employee
address (Field 2), name of physician or
other health care professional (Field 6),
and facility name and address if
treatment was given away from the
worksite (Field 7) from the Injury and
Illness Incident Report (OSHA Form
301).
Section 1904.41(b)(9) of the final rule
is identical to proposed § 1904.41(b)(9).
ddrumheller on DSK120RN23PROD with RULES2
3. Publication of Electronic Data
As discussed above, OSHA intends to
make some of the data it collects public.
The publication of specific data
elements will in part be restricted by
applicable Federal law, including
provisions of the Freedom of
Information Act (FOIA), as well as
specific provisions within part 1904.
OSHA will make the following data
from Forms 300 and 301 available in a
searchable online database:
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
• Form 300 (the Log)—All collected
data fields on the 300 Log will generally
be made available on OSHA’s website.
As specified in § 1904.41(b)(9),
employee names will not be collected.
OSHA notes that it often collects copies
of establishments’ Forms 300 during
inspections and includes them as part of
the enforcement case file. Prior to this
rulemaking, OSHA has not conducted a
systematic collection of the information
on the 300 Log. However, OSHA
releases the Forms 300 that it does have
(in case files) in response to FOIA
requests, subject to application of the
FOIA exemptions. In those responses,
OSHA redacts employee names
pursuant to FOIA Exemptions.
• Form 301 (Incident Report)—All
collected data fields on the right-hand
side of the form (Fields 10 through 18)
will generally be made available. As
specified in § 1904.41(b)(9), employee
name (Field 1), employee address (Field
2), name of physician or other health
care professional (Field 6), and facility
name and address if treatment was
given away from the worksite (Field 7)
will not be collected. OSHA notes that
it often collects copies of
establishments’ Forms 301 during
inspections and includes them as part of
the enforcement case file. Prior to this
rulemaking, OSHA has not conducted a
systematic collection of the information
on the 301 Incident Report. However,
OSHA releases the forms that it does
have in response to FOIA requests,
subject to application of the FOIA
exemptions. Section 1904.35(b)(2)(v)(B)
prohibits employers from releasing the
information in Fields 1 through 9 (the
left-hand side of the form) to
individuals other than the employee or
former employee who suffered the
injury or illness and his or her personal
representatives, and OSHA does not
release this information under FOIA.
Similarly, OSHA will not publish
PO 00000
Frm 00026
Fmt 4701
Sfmt 4700
establishment-specific data from the left
side of Form 301.
OSHA intends to publish information
from the Forms 300 and 301 as both
text-based and coded data. An example
of text-based data would be, ‘‘Second
degree burns on right forearm from
acetylene torch’’ in Field F (‘‘Describe
injury or illness, parts of body affected,
and object/substance that directly
injured or made person ill’’) on the
Form 300. An example of coded data for
this case, using the Occupational Injury
and Illness Classification System
(OIICS) Manual, would be:
• Nature of injury: 1,520 (heat (thermal)
burns, unspecified)
• Part of body affected: 423 (forearm)
• Source of injury or illness: 7,261
(welding, cutting, and blow torches)
• Event or exposure: 533 (contact with
hot objects or substances)
For text-based data, as discussed
below, OSHA plans to use automated
de-identification technology,
supplemented with some manual
review of the data, to identify and
remove information that could
reasonably be expected to identify
individuals directly from the fields the
agency intends to publish (as discussed
above); the agency will not publish textbased data until such information, if
any, has been identified and removed.
For coded data, also as discussed below,
OSHA plans to use an automated coding
system to code the collected data; until
the autocoding system has been tested
and is in place, OSHA intends to only
use and publish uncoded data. The
coded data by its nature will not include
any information which could reasonably
be expected to identify employees
directly, and thus there will be no need
to use automated de-identification
technology or manual de-identification
before publishing coded data.
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
4. Benefits of Collecting and Publishing
Data From Forms 300 and 301
As discussed in more detail below,
OSHA has determined that this final
rule will improve worker safety and
health because the collection of, and
expanded public access to,
establishment-specific, case-specific,
injury and illness data from Forms 300
and 301 will allow OSHA, employers,
employees, researchers, safety
consultants, and the general public to
use the data in ways that will ultimately
result in the reduction of occupational
injuries and illnesses.
In the preamble to the 2019 final rule,
OSHA stated that, because the agency
‘‘already has systems in place to use the
300A data for enforcement targeting and
compliance assistance without
impacting worker privacy, and because
the Form 300 and 301 data would
provide uncertain additional value, the
Form 300A data are sufficient for
enforcement targeting and compliance
assistance at this time’’ (84 FR 392). The
uncertainty regarding the extent of the
benefits was based, in part, on the
determination that ‘‘[b]ecause . . .
publishing the data would do more
harm than good for reasons described
more fully below and in the privacy
discussion above, OSHA would not
make the data public even if collected’’
(84 FR 390). In addition, at the time of
the 2019 final rule, ‘‘OSHA ha[d]
already taken the position that data from
Form 300A is exempt from disclosure
under FOIA and that OSHA will not
make such data public for at least the
approximately four years after its receipt
that OSHA intends to use the data for
enforcement purposes’’ (84 FR 391).
Since publication of the 2019 final
rule, however, OSHA is now better able
to collect, analyze, and publish data
from Forms 300 and 301, and advances
in technology have reduced the risk that
information that could reasonably be
expected to identify individuals directly
will be disclosed to the public. Also,
improvements in technology have
reduced the manual resources needed to
identify and remove sensitive worker
information from 300 and 301 forms.
These developments will allow OSHA
to more effectively review and analyze
the collected 300 and 301 data and
ensure that information which could
reasonably be expected to identify
employees directly is removed prior to
publication. For example, as discussed
below, more advanced autocoding
technology will allow OSHA to more
efficiently review and analyze the data,
allowing the agency to focus its
enforcement targeting and compliance
assistance resources on specific hazards
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
at establishments with safety and health
problems, resulting in a reduction of
work-related injuries and illnesses.
Similarly, advances in technology to
identify and remove information which
could reasonably be expected to identify
employees directly will reduce the
resources needed to publish text-based
information while adequately protecting
worker privacy. In addition, OSHA
plans to publish the coded data
produced by the more advanced
autocoding technology, which by its
nature will not include any information
which could reasonably be expected to
identify employees directly.5
Additionally, as explained above,
since 2020, there have been multiple
court decisions adverse to the
Department of Labor’s position that
electronically submitted Form 300A
data are exempt from public disclosure
under the FOIA. In these decisions,
courts have rejected the Department of
Labor’s position that electronically
submitted 300A injury and illness data
was covered under the confidentiality
exemption in FOIA Exemption 4. As a
result, in August 2020, OSHA initiated
a policy to post collected 300A data on
its public website at https://
www.osha.gov/Establishment-SpecificInjury-and-Illness-Data, with
submissions for calendar years 2016,
2017, 2018, 2019, 2020, and 2021.
Accordingly, based on the recent
developments described above, and the
additional information included in the
record for this rulemaking, OSHA now
believes there are significant benefits
resulting from the collection and
publication of establishment-specific,
case-specific, injury and illness data
from Forms 300 and 301. In addition, as
explained below, OSHA concludes that
the significant benefits associated with
the collection and publication of Forms
300 and 301 data outweigh the slight
risk to employee privacy. Indeed, the
benefits of collection alone would
outweigh the slight risk to employee
privacy.
As explained in more detail below,
after considering the record as a whole,
including commenters’ responses to
specific questions in the NPRM on this
topic, OSHA finds that the collection of,
and expanded public access to,
establishment-specific, case-specific,
injury and illness data will allow
OSHA, employers, employees, potential
customers, employee representatives,
researchers, safety consultants, and the
5 OSHA, like other Federal agencies, is
responsible for protecting personally identifiable
information (PII) in accordance with law and
policy. Throughout this preamble, OSHA identifies
and discusses multiple ways in which the agency
fulfills this responsibility.
PO 00000
Frm 00027
Fmt 4701
Sfmt 4700
47279
general public to use the data in ways
that will ultimately result in the
reduction of occupational injuries and
illnesses (see 87 FR 18547).
a. General Benefits of Collecting and
Publishing Data From Forms 300 and
301
OSHA received several comments on
the general benefits of collecting and
publishing data from Forms 300 and
301. For example, Miranda Ames
commented, ‘‘The more data we have
about workplace safety, the better we
can do at protecting workers. Collection
of information like this by OSHA will
enable better statistical analysis of
workplace injuries across industries,
and incentivize employers to keep more
thorough records of workplace incidents
and accidents’’ (Docket ID 0011).
Similarly, Cal/OSHA commented,
‘‘Complete and accurate surveillance of
occupational injury and illness is
essential and holds significant value for
informed policy decisions and for
effective intervention and prevention
programs. The policy of requiring
submission of detailed information from
larger employers specifically helps
identify and abate workplace hazards by
improving the surveillance of
occupational injury and illness.’’
(Docket ID 0084). This commenter also
explained that the proposed
requirements for reporting detailed
information, and the transparency that it
creates, encourage and support accurate
occupational injury and illness
reporting (Docket ID 0084). Similarly,
Centro de los Derechos del Migrante,
Inc. commented that making the data
publicly available will increase the
accuracy of such records and address
underreporting by employers (Docket ID
0089).
In addition, commenters suggested
that the collection and publication of
Forms 300 and 301 data will allow the
agency to receive more detailed
information on the nature and
circumstances of work-related injuries
and illnesses, and target its limited
enforcement and compliance assistance
resources to protect the greatest number
of workers (Docket IDs 0040, 0064).
Commenters also noted that this rule
may particularly benefit low-income
and minority workers (Docket IDs 0045,
0048). For example, National COSH
stated that Latino and Black workers are
at greater risk of dying on the job than
other workers, and this rule ‘‘is critical
to improving worker safety and health,
especially for workers at elevated risk of
injury, illness and death’’ (Docket ID
0048).
On the other hand, some commenters
questioned whether OSHA had
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
47280
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
adequately justified the benefits of
collecting and publishing data in the
proposed rule. For example, NFIB stated
that many of the reasons that OSHA
gives in the preamble to the proposed
rule to justify the collection and
publication of information are ‘‘rather
flimsy’’ (Docket ID 0036). Some
commenters stated that the collected
data would not benefit workplace safety
and health, concluding that OSHA
recordkeeping data are not useful. For
example, an anonymous commenter
stated that data collection is reactive,
and that taxpayer money would be
much better spent on proactive
programs that improve safety and health
in the workplace. This commenter also
asked, ‘‘How do employers know that
OSHA will not start targeting them due
to injuries that are reported?’’ (Docket ID
0014). The U.S. Poultry & Egg
Association commented that the
existing reporting rules are adequate to
allow employers to identify risks and
allow OSHA to direct its enforcement
activities, and stated that a reduction in
injury and illness rates in poultry
processing and general manufacturing
from 1994 to 2020 is evidence that
OSHA’s proposed changes are
unnecessary (Docket ID 0053).
Mid Valley Agricultural Services
commented, ‘‘It is unclear how the
proposed rule will result in reductions
to injuries/illnesses in the workplace or
the frequency and severity of instances.
Aggregating more data on workplace
injuries/illnesses does nothing in and of
itself to reduce the possibility of
workplace injuries/illnesses’’ (Docket ID
0019). The Plastics Industry Association
(Docket ID 0086) and Angela Rodriguez
(Docket ID 0052) submitted similar
comments. In addition, the U.S.
Chamber of Commerce resubmitted a
comment from the 2016 rulemaking that
argued that OSHA’s collection of injury
and illness data would not lead to
effective targeting of workplaces
‘‘because information about an
establishment’s incidences of workplace
injuries and illnesses does not
accurately or reliably correlate with an
establishment that is hazardous or that
has failed to take OSHA-compliant steps
to prevent injuries’’ (Docket ID 0088,
Attachment 2). The comment asserted
that a study by the RAND Corporation
‘‘found that no research supports the
preconception that the goal of reducing
workplace injuries and illnesses can be
most effectively reached by focusing on
workplaces with the highest number of
incidents of injuries or illnesses’’ and
that ‘‘there appears to be little
relationship between the injury rate and
the likelihood of violations at inspected
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
establishments.’’ The comment
concluded that ‘‘this proposed database
will provide raw data subject to so many
caveats, complexities, and assumptions
as to be meaningless.’’
In response, OSHA agrees with
commenters who generally stated that
there are benefits resulting from the
collection and publication of
establishment-specific, case-specific,
injury and illness data from Forms 300
and 301. As discussed in more detail
below, the primary purpose of the
requirement in the final rule for the
electronic submission of 300 and 301
data, and the subsequent publication of
certain data, is to prevent occupational
injuries and illnesses through the use of
timely, establishment-specific injury
and illness data by OSHA, employers,
employees, other Federal agencies and
States, researchers, workplace safety
consultants, and the public. The
collection and publication of data from
Forms 300 and 301 will not only
increase the amount of information
available for analysis, but will also
result in more accurate statistics
regarding work-related injuries and
illnesses, including more detailed
statistics on injuries and illnesses for
specific occupations and industries. In
other words, the increase in collected
injury and illness data will necessarily
result in more accurate statistics. In
turn, more accurate statistics will
enhance interested parties’ knowledge
regarding specific workplace hazards.
Relatedly, OSHA agrees with
commenters that said making the data
publicly available will increase the
accuracy of occupational injury and
illness reporting. To the extent that
underreporting is a problem, the public
availability of case-specific data will
allow employees to assess whether their
personally experienced injuries and
illnesses have been accurately recorded
on their employers’ Forms 300 and 301.
Although others would not be able to
identify that a specific employee
suffered a particular injury or illness,
OSHA expects that the injured or ill
worker would be able to determine
whether their particular injury or illness
was recorded. This check would work
in tandem with employees’ ability to
check such things in an employer’s
Forms 300 and 301 and would address
employees’ fear that asking to view
those forms could result in retaliation.
OSHA has also discussed these issues in
further detail in Section III.B.4.d of the
Summary and Explanation.
The requirement to submit
establishment-specific, case-specific
data will also assist OSHA in
encouraging employers to prevent
occupational injuries and illnesses by
PO 00000
Frm 00028
Fmt 4701
Sfmt 4700
expanding OSHA’s access to the
information that employers are already
required to keep under part 1904. As
noted elsewhere, OSHA typically only
has access to establishment-specific,
case-specific, injury and illness
information when it conducts an onsite
safety and health inspection at an
individual establishment. However, the
electronic submission of 300 and 301
data will allow OSHA to obtain a much
larger data set of information about
work-related injuries and illnesses and
will enable the agency to use its
enforcement and compliance assistance
resources more effectively. OSHA
intends to use the collected data to
identify establishments with recognized
workplace hazards where workers face a
high risk of sustaining occupational
injuries and illnesses.
The collection of establishmentspecific, case-specific information will
also provide data for analyses that are
not currently possible. OSHA plans to
use the data collected from this final
rule to assess changes in the types and
rates of specific injuries and illnesses in
a given industry over a long period of
time. In addition, the data collection
will allow OSHA to better evaluate the
effectiveness and efficiency of its
various safety and health programs,
initiatives, and interventions in
different industries and geographic
areas. Additionally, for these reasons,
OSHA disagrees with commenters that
suggest current reporting requirements
are adequate to protect worker safety
and health.
OSHA disagrees with commenters
that stated that part 1904 injury and
illness data are not useful in improving
occupational safety and health, and that
taxpayer funds would be better spent on
more proactive measures. As noted
above, OSHA’s injury and illness
recordkeeping regulation has been in
place since 1971. The information
recorded on the OSHA forms is
recognized by safety and health
professionals as an essential tool for
identifying and preventing workplace
injuries and illnesses. Historically,
employers, employees, and OSHA have
used part 1904 information to identify
injury and illness trends and to evaluate
the effectiveness of abatement methods
at an individual establishment. The
collection and publication of certain
data from the 300 and 301 forms
required by this final rule will enable
interested parties and OSHA to have
access to a much larger data set,
resulting in increased knowledge of
workplace hazards, and a reduction in
occupational injuries and illnesses. In
addition, implementation of the
collection and publication of
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
establishment-specific, case-specific,
injury and illness data is a cost-effective
measure used to improve workplace
safety and health. OSHA estimates that
the total cost for implementing the
requirements of this final rule will have
an annual cost to the government of
approximately $554,000 per year.
However, the agency expects that the
increased knowledge of workplace
hazards and injury and illness trends, as
well as the expected improved accuracy
of part 1904 records, will result in
decreased workers’ compensation costs
for employers and decreased healthcare
costs for injured or ill employees by
virtue of the reduction in workplaces
injuries and illnesses that OSHA
expects to result from this final rule.
OSHA also notes, as discussed below,
that the agency’s collection of this
information will allow it to more
effectively prioritize its compliance
assistance resources, which will help
employers better protect their
employees.
OSHA agrees that the injury and
illness data collected as a result of this
final rule may be used to target certain
establishments for safety and health
inspection or compliance assistance.
The agency considers the use of the
collected data for possible targeting of
specific establishments for enforcement
or compliance assistance intervention as
a benefit of this final rule. Again, as
noted above, OSHA expects the
accuracy and quality of occupational
injury and illness data to improve as a
result of this final rule. The increased
amount of data collected by the agency,
along with the expected improvement in
data accuracy, will enable OSHA to
better analyze and evaluate workplace
safety and health hazards. Accordingly,
the overall improvement in the data
collected by the agency will allow
OSHA to more accurately and
objectively target specific
establishments where workers are at
high risk and thereby reduce the overall
occurrence of workplace injuries and
illnesses.
With regard to the Chamber’s
comment on the 2013 RAND
Corporation study, OSHA notes that the
study focuses primarily on the
effectiveness of various types of Cal/
OSHA inspections (e.g., programed,
planned, and complaint) rather than on
issues related to workplace injury and
illness rates. Indeed, similar to how
OSHA intends to use the collected data
from this final rule, one of the
recommendations included in the study
states, ‘‘Workplaces in high-injury-rate
industries that have not been inspected
at all or not for many years should be
identified and deserve some priority in
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
programmed inspections’’ (see
Inspection Targeting Issues for the
California Department of Industrial
Relations Division of Occupational
Safety and Health (John Mendeloff &
Seth A. Seabury) (Docket ID 0099) at
13). Finally, as noted above, Cal/OSHA
itself commented in this rulemaking
that injury and illness surveillance is
essential for informed policy decisions
and in the identification, prevention,
and abatement of workplace hazards
(Docket ID 0084).
Additionally, the National Propane
Gas Association stated that OSHA ‘‘does
not provide any details as to how
publicly available information could
improve workplace safety’’ (Docket ID
0050). In response, as the agency
explained in the NPRM (87 FR 18538),
by that point in time, OSHA had
successfully collected reference year
2016 through 2020 Form 300A data
through the OSHA Injury Tracking
Application. (Since publication of the
NPRM, OSHA has completed collection
of reference year 2021 Form 300A data
and has begun collecting 2022 data.)
Approximately 300,000 records have
been submitted to the agency each year.
OSHA has successfully analyzed these
data to identify establishments with
elevated injury and illness rates and has
focused both its enforcement and
outreach resources towards these
establishments. This experience
demonstrates OSHA’s ability to collect,
analyze, and use large volumes of data
to interact with establishments where
workers are being injured or becoming
ill. However, this same experience has
demonstrated the limits of the 300A
data currently collected. As explained
in more detail below, the collection and
publication of establishment-specific,
case-specific, injury and illness data
from Forms 300 and 301 will result in
significant benefits for the agency.
The International Bottled Water
Association (IBWA) commented, from
an enforcement standpoint, ‘‘by the time
the data could be evaluated for use in
selecting OSHA’s enforcement targets,
the data would surely be stale and
provide no useful basis for the agency
to initiate enforcement against
employers within the six-month statute
of limitations set forth in the OSH Act.’’
This commenter also stated that,
‘‘[b]ecause the data is insufficient in and
of itself as a targeting tool, and because
OSHA would be able to rely on such
data only when it likely no longer
reflects current conditions at a
particular worksite, OSHA’s
enforcement program is better served by
continuing to use 300A summary data to
target enforcement resources,’’ and then
obtaining a copy employer’s current
PO 00000
Frm 00029
Fmt 4701
Sfmt 4700
47281
Forms 300 and 301 at the time of an
inspection (Docket ID 0076). IBWA
added, ‘‘[u]sing the more detailed 300
and 301 data in the context of an
individual inspection, as the agency has
historically done, is a better and more
effective use of this data than OSHA’s
proposed new plan’’ (Docket ID 0076).
In response, for purposes of
enforcement inspection and compliance
assistance targeting, the agency intends
to use the collected data from this final
rule in two ways. First, OSHA plans to
continue to use administrative plans
based on neutral criteria to target
individual establishments with high
injury and illness rates based on
submitted Form 300A summary data.
Second, OSHA intends to use
administrative plans based on neutral
criteria to target individual
establishments based on submitted casespecific, establishment-specific, injury
and illness data from the Forms 300 and
301.
OSHA agrees with IBWA that relying
on Form 300A summary data is an
effective source of information for
targeting the agency’s enforcement
resources. For example, the SiteSpecific Targeting (SST) plan is OSHA’s
main site-specific programmed
inspection initiative for nonconstruction workplaces that have 20 or
more employees. Currently, the SST
program targets individual
establishments based on 300A injury
and illness data that employers are
already required to electronically
submit to OSHA under 29 CFR 1904.41.
OSHA uses submitted 300A data to
calculate injury and illness rates for
individual establishments. The SST
program helps OSHA achieve the goal of
ensuring that employers provide safe
and healthful workplaces by directing
enforcement resources to those
workplaces with the highest rates of
injuries and illnesses. Moving forward,
OSHA intends to continue to use the
300A data submitted under
1904.41(a)(1) of this final rule to
calculate injury and illness rates and
target individual establishments for
inspection under the SST.
OSHA also intends to use collected
case-specific, establishment-specific
data from the Forms 300 and 301 to
identify individual establishments for
enforcement inspection and compliance
assistance outreach. OSHA believes that
reviewing and analyzing specific data
from the Forms 300 and 301 is an
effective method for the agency to
identify individual establishments for
enforcement inspection or compliance
assistance targeting. For example, OSHA
will be able to use 300 and 301 data to
identify specific hazards at a given
E:\FR\FM\21JYR2.SGM
21JYR2
47282
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
ddrumheller on DSK120RN23PROD with RULES2
establishment. In turn, the agency will
be able to more effectively deploy its
enforcement and compliance assistance
resources to eliminate identified
hazards and enhance worker safety and
health. Of course, and as discussed
elsewhere, OSHA enforcement targeting
based on the data submitted as a result
of this final rule will be conducted in
accordance with a neutral-based scheme
for identifying workplaces for closer
inspection.
OSHA disagrees with IBWA’s
comment that the collected injury and
illness data the agency intends to use for
its enforcement inspection and
compliance assistance targeting is stale.
OSHA acknowledges that the Forms 300
and 301 data are based on injuries and
illnesses that occurred during the
previous calendar year. However,
OSHA’s current SST inspection
targeting program is also based on Form
300A summary data from the previous
calendar year. Even though the injuries
and illnesses occurred during the
previous calendar year, the information
is helpful to OSHA in determining
whether a hazard is an ongoing problem
at a specific establishment. For example,
although a heat-related illness may have
occurred more than six months before
the submission deadline, it may be
reasonable for OSHA to conclude that
multiple entries of this illness on the
OSHA forms represent an ongoing
hazard at that establishment. In
addition, research indicates that high
injury and illness rates are persistent
over time until there is some type of
safety and health intervention at the
facility (see Evaluation of OSHA’s
Impact on Workplace Injuries and
Illnesses in Manufacturing Using
Establishment-Specific Targeting of
Interventions: Programmed Inspections
and High Hazard Notification Letters,
FINAL REPORT. Prepared by: ERG,
Lexington, MA, July 16, 2004 (Docket ID
0098)). By identifying an establishment
with ongoing hazards, the agency has
the opportunity to use its enforcement
and compliance assistance resources to
conduct an intervention and improve
workplace safety and health.
b. Beneficial Ways That OSHA Can Use
the Data From Forms 300 and 301
OSHA expects to use the collected
data in many ways to improve worker
safety and health. Most importantly,
having this information will provide
OSHA with a much fuller and more
detailed understanding of the kinds of
injuries and illnesses experienced by
workers doing different jobs in a range
of industries.
The data available from the 300A
forms currently collected by OSHA
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
show primarily only how many
‘‘injuries’’ and ‘‘illnesses’’ occur. (The
300A ITA data also provide information
on the number of cases of illnesses
involving hearing loss, poisonings, skin
disorders, and respiratory disorders, but
even for those, knowing that they
occurred at a particular workplace
provides little if any useful information
about how the workers developed
them.) The data provide no meaningful
information about the kinds of injuries
or illnesses suffered by workers, the
kind of work they do, or the hazards
present at their workplaces. The
establishment-wide scope of the 300A
data currently available to OSHA also
tends to obscure particular types of
injuries and illnesses that may affect
only certain classes of workers at large
establishments. For example, nursing
aides at hospitals may be exposed to
very different hazards than those facing
other hospital staff who do not perform
the same kind of physical work. Yet,
looking at hospital-wide generalized
data will give no hint of the
circumstances giving rise to particular
exposures or which workers are
affected.
By having access to more precise
information about the kinds of injuries
and illnesses affecting workers
performing different kinds of operations
at different kinds of workplaces, OSHA
can deploy its resources in ways more
calculated to address the specific
hazards that actually exist in specific
workplaces. It is obvious that the broad
categories of ‘‘injury’’ and ‘‘illness’’
provide little useful information about
the specific kinds of hazards that exist
at a workplace. And even a narrower
category of illness like ‘‘respiratory
conditions’’ does not indicate whether
the respiratory condition is related to a
chemical exposure, COVID–19, valley
fever (coccidioidomycosis), hantavirus,
Legionnaires’ disease (Legionellosis), or
tuberculosis. In contrast, the collection
and analysis of case-specific data from
the Forms 300 and 301 would allow
OSHA to determine the prevalence of
particular respiratory hazards and
respond appropriately, whether that
response is in the form of targeted
enforcement efforts or compliance
assistance, general guidance materials or
regulatory solutions, or cooperation
with local public health authorities.
Having access to case-specific data
will also allow OSHA to determine
whether workers in particular
demographics are being sickened or
injured disproportionately. These may
be younger or older workers, temporary
workers, or workers new to a particular
assignment. If OSHA has this
information, it will be able to develop
PO 00000
Frm 00030
Fmt 4701
Sfmt 4700
strategies to address the particular
demographic factors that lead to these
disproportionate outcomes.
Many of the comments questioning
the utility of the data for OSHA seemed
to be premised on the erroneous belief
that OSHA’s primary use of the data
would be to target enforcement efforts at
workplaces with higher injury and
illness rates. But the utility of casespecific data is much broader. While the
data certainly can be used to help target
enforcement, as well as compliance
assistance efforts, it is also valuable to
OSHA in that it allows for the types of
analyses that can make all of OSHA’s
work more effective.
As noted above, OSHA can analyze
the data to identify the specific
conditions that are injuring workers as
well as the specific classes of workers
who are being injured. OSHA can
identify trends in the types of injuries
and illnesses that are occurring and, as
noted by the AFL–CIO, the agency can
identify and assess emerging hazards
(Docket ID 0061). Being able to make
these identifications allows OSHA to
promote safer workplaces in myriad
ways. OSHA can disseminate
information about trends in injuries and
illnesses and emerging hazards to the
public so that both workers and
employers can take steps to prevent
similar injuries and illnesses at their
own facilities. For example, the AFL–
CIO noted that the data could have been
utilized in the first years of the COVID–
19 pandemic to identify where effective
mitigation measures were necessary to
reduce exposures, and could have been
incorporated into agency guidance,
enforceable standards, and enforcement
initiatives, and used to inform employer
and union COVID–19 safety plans
(Docket ID 0061). OSHA can also
prioritize use of its own limited
resources to have the greatest impact.
This may mean providing more useful
compliance assistance or guidance,
considering development of new
standards, or revising enforcement
programs to focus on workplaces where
OSHA has determined that hazards are
more likely to be found. As noted by the
Laborers’ Health and Safety Fund of
North America, this also means that
OSHA can ‘‘become more data driven in
its compliance and enforcement efforts’’
and, ‘‘[i]n being a more online and
easily accessible agency, OSHA can
push its consulting efforts and services’’
(Docket ID 0080).
One example of how OSHA can use
the information in Forms 300 and 301
relates to OSHA’s efforts to address
indoor and outdoor heat-related
hazards. As climate change has
accelerated, heat hazards have become
E:\FR\FM\21JYR2.SGM
21JYR2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
ddrumheller on DSK120RN23PROD with RULES2
more prevalent, sickening and killing
more workers every year (see https://
www.osha.gov/sites/default/files/
enforcement/directives/CPL_03-00024.pdf). OSHA’s efforts to address
these hazards are multi-pronged, with
ongoing enforcement, compliance
assistance, and guidance efforts, as well
as a regulatory component. Without
case-specific injury and illness data,
OSHA’s understanding of the scope of
the problem and its ability to identify
specific operations and types of
establishments where workers are most
at risk, are limited, impeding its ability
to intervene at an early enough stage to
prevent worker illnesses and deaths.
Currently, OSHA most often learns of
these hazards after an employer reports
a worker hospitalization or death
(pursuant to 29 CFR 1904.39). The Form
300A listing of the number of illnesses
at various establishments gives no sense
of how many of those illnesses are heatrelated. In contrast, Forms 300 and 301
data will allow OSHA to identify
patterns and trends in the occurrence of
heat-related illness, and not only focus
its enforcement and compliance
assistance resources appropriately, but
also inform OSHA’s efforts to develop a
permanent standard addressing heat
hazards. These types of longer-term
strategic activities can help make OSHA
a more effective agency overall, and in
doing so, make all workers safer.
c. Beneficial Ways That Employers Can
Use the Data From Forms 300 and 301
In the preamble to the proposed rule,
OSHA asked, ‘‘What are some ways that
employers could use the collected data
to improve the safety and health of their
workplaces?’’ Multiple commenters
provided comments on employers’ use
of the collected data to improve the
safety and health of their workplaces,
including information about
benchmarking and incentives. (Docket
IDs 0030, 0035, 0046, 0061, 0063, 0093).
For example, AIHA commented,
‘‘Benchmarking against other employers
is an important management tool for
understanding and improving
occupational safety and health
programs’’ (Docket ID 0030). Similarly,
the AFL–CIO commented that the
collected data would provide employers
direct access to detailed injury and
illness information to compare their
injury and illness records and
experience with others in the same
industry (Docket ID 0061). NIOSH made
similar comments and added that,
currently, employers may compare their
injury rates to those of their industry as
reported in the SOII, but because of the
large number of injury and illness
records that will be collected under this
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
rulemaking, employers will be able to
compare their injury and illness rates to
those of many more specific groups of
establishments and employers. This
commenter also stated, ‘‘Benchmarking
safety performance to more comparable
establishments and employers instead of
large, anonymous aggregates would
provide more accurate as well as more
compelling metrics for guiding and
motivating improvement of safety
programs’’ (Docket ID 0035).
More generally, the Sheet Metal and
Air Conditioning National Association
(SMACNA) commented, ‘‘SMACNA
members believe that any additional
data that is collected should be used in
tandem with Bureau of Labor Statistics
(BLS) data so our industry can better
understand loss trends and use the
information accordingly. SMACNA
members provide a unique service and
would like the data to be broken down
by the specific North American Industry
Classification System (NACIS) codes.
Such as detailed OSHA incident rate
information for NACIS code 238220—
Plumbing, Heating, and AirConditioning Contractors.’’ (Docket ID
0046).
Additionally, Worksafe commented
that access to more electronic data will
allow businesses to compare their safety
performance to other firms and enable
competition for improved safety. Also,
this commenter explained that
suppliers, contractors, and purchasers of
a firm’s goods or services could also
consider the information in their
business decisions, such as whether to
support a business with a poor safety
record. In addition, regarding the issue
of incentives for employers, this
commenter stated, ‘‘When employers
know that injury or illness incidents
will be published online, the risk of
social stigma will encourage them to
take appropriate precautions and avoid
violations’’ (Docket ID 0063).
Similarly, Public Citizen commented,
‘‘Bringing performance information out
into the open is an effective form of
behavioral economics impacting
employer decision-making. It serves as a
strong incentive for employers to
improve their safety records and
support their reputations. It would
encourage employers to implement
systems, protocols, education and
workplace alterations, resulting in less
worker injuries and illnesses. Employers
can also use establishment-specific,
case-specific injury and illness
information to compare their safety
record to similar establishments and set
benchmarks for improvement of their
own safety and health performance.
Negative publicity has been shown to
improve not just the behavior of the
PO 00000
Frm 00031
Fmt 4701
Sfmt 4700
47283
highlighted employer, but also other
employers. This general deterrence
effect has been demonstrated by
improved compliance with safety
standards by employers after OSHA
issued press releases on OSHA
violations uncovered during
inspections. The impact was so
powerful that press releases led to 73
percent fewer safety violations
identified during programmed
inspections at neighboring enterprises
and a drop in injury reports from the
same enterprises.’’ (Docket ID 0093).
On the other hand, several
commenters stated that employers
would not be able to use the collected
data to improve the safety and health of
their workplaces (Docket IDs 0086,
0090, 0094). For example, the Plastics
Industry Association commented, ‘‘The
rule will not assist employers in
managing workplace safety as it does
not provide information that is not
already available to them and their
employees. When companies publish
incident reports internal to all
employees, all personal information is
removed, and no medical information is
provided.’’ This commenter also stated
that companies track different types of
information and that some companies
already benchmark with others (Docket
ID 0086).
The Phylmar Regulatory Roundtable
OSH Forum also commented that there
is already benchmarking by employers,
saying, ‘‘Many employers, such as PRR
members are part of trade organizations
and already participate in formal
benchmarking on injury and illness
data. PRR members also review BLS
data. Therefore, we believe that OSHA’s
posting of establishment specific data
will be of NO additional benefit to the
resources already available to employers
who actively pursue these methods.’’
(Docket ID 0094).
In addition, a few commenters stated
that the data would harm employers.
For example, Angela Rodriguez
commented, ‘‘There is a perceived risk
of business competitors using the
establishment-level data to gain an
advantage by comparing/contrasting
results in a negative context. E.g.,
‘Company X lets their employees get
seriously injured 3x more than us’ ’’
(Docket ID 0052). Similarly, the
National Retail Federation commented,
‘‘Given President Biden’s expressed
desire to lead the ‘‘most pro-union
Administration in American history,’’ it
is likely that the true motivation of this
rulemaking is to weaponize injury and
illness data for labor union leaders’
benefit. Labor unions will likely use this
data to gain support for their organizing
efforts, claiming the data proves an
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
47284
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
employer is not protecting its workers.’’
(Docket ID 0090). This commenter also
stated that unions may use the data to
pressure employers in negotiations over
collective bargaining agreements, and
competitors may use the information for
anticompetitive purposes, such as
poaching top workers or hurting the
reporting entity’s standing in the
community (Docket ID 0090). Likewise,
the Phylmar Regulatory Roundtable
OSH forum commented, ‘‘This type of
risk profile and data tool could also be
used by insurance companies when
determining policies and rates for a
company’s worker compensation
insurance plan. In addition, an
insurance company could use the risk
profile and data tool to deny issuance of
disability, long-term, and other types of
insurance.’’ (Docket ID 0094).
In response, OSHA agrees with
commenters who stated that employers
will be able to use the published
establishment-specific, case-specific,
injury and illness data to improve their
workplace safety and health.
Specifically, employers will be able to
use the data to compare case-specific
injury and illness data at their
establishment with that of comparable
establishments and set safety and health
goals benchmarked to the
establishments they consider most
comparable. OSHA also plans to include
information regarding establishments’
NAICS codes. As SMACNA suggests,
interested parties can use that
information to better understand loss
trends, which will help them make
improvements in worker safety and
health.
Since employers will have access to a
much larger data set, OSHA disagrees
with commenters who suggested that
employers already have access to
enough information from trade
associations to conduct benchmarking
with injury and illness data. OSHA
notes that employers will be able to
access data from the entire range of
establishments covered by the electronic
submission requirements in this final
rule. Thus, employers will have the
opportunity to compare and benchmark
their injury and illness data with not
only the safest establishments in their
industry, but with the safest
establishments in all industries covered
by the final rule. In addition, OSHA
anticipates that employers will be able
to review the establishment-specific
injury and illness data, identify safer
establishments in their industry, and
potentially develop and establish
similarly effective safety and health
programs at their own facilities.
OSHA also agrees with commenters
who stated that the publication of
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
establishment-specific, case-specific,
injury and illness data will incentivize
employers to minimize the number of
occupational injuries and illnesses at
their workplace. For example, the
publication of the data will encourage
potential customers or business partners
to evaluate the full range of injury and
illness cases at a specific establishment.
In turn, employers will work to improve
the occupational safety and health at
their facility, which will result in
reduced work-related injuries and
illnesses, thereby enhancing the
employer’s standing with potential
customers and business partners.
In addition, OSHA disagrees with
commenters who stated that the
collection and publication of
establishment-specific, case-specific,
injury and illness data will harm
employers or that labor unions will
‘‘weaponize’’ the data. Again, as noted
above, the only purpose for the
collection and publication of injury and
illness data required by this final rule is
to improve occupational safety and
health and to reduce injuries and
illnesses to workers. At the same time,
OSHA considers the publication of an
establishment’s injury and illness data,
which can be a valid measure of a
company’s overall safety culture, to be
an effective incentive for employers to
improve occupational safety and health.
As a result, OSHA concludes that the
collection and publication of this data
will encourage employers with more
hazardous workplaces to make
improvements in safety and health to
reduce the number of occupational
injuries and illnesses at their
workplaces. Such changes will also be
of benefit to employers, in that
workplace illnesses and injuries impose
costs on employers beyond the cost to
the injured or ill employee.
In response to the Phylmar Group’s
comment that insurance companies may
use the collected data to calculate
insurance rates or deny insurance
coverage to companies based on the
data, OSHA notes that insurance
companies could engage in these
practices using the 300A data OSHA has
been collecting and publishing for
several years now if they wanted to. The
Phylmar Group does not identify any
reason why the collection of data from
Forms 300 and 301 would make these
practices more likely or widespread, nor
does it provide any evidence that
insurance companies are or are not
already doing this. Moreover, the
possibility that insurance companies
may raise rates or deny insurance
coverage based on an employer’s higherthan-average rates of occupational
injuries and illnesses would provide
PO 00000
Frm 00032
Fmt 4701
Sfmt 4700
further incentive for employers to
improve workplace safety and health at
their establishments.
Finally, and as discussed below,
access to the collected data will improve
the workings of the labor market by
providing more complete information to
job seekers. Using data newly accessible
under this final rule, potential
employees will be able to examine casespecific information to help them make
more informed decisions about future
employment and, in turn, could
encourage employers to make
improvements in workplace safety and
health in order to attract potential
employees. In addition, this would help
address the problem of information
asymmetry in the labor market, where
the businesses with the greatest
problems have the lowest incentive to
self-disclose.
Accordingly, after consideration of
the rulemaking record, OSHA has
determined that employers will be able
to use the collected and published data
to improve workplace safety and health
and reduce occupational injuries and
illnesses.
d. Beneficial Ways That Employees Can
Use the Data From Forms 300 and 301
In the preamble to the proposed rule,
OSHA asked ‘‘What are some ways that
employees could use the collected data
to improve the safety and health of their
workplaces?’’ 87 FR 18547.
OSHA received many comments on
how employees will benefit from
increased access to information from the
300 and 301 forms and on how
employees will use the collected data to
improve safety and health at their
workplaces. Several commenters
provided information on how
employees will generally be able to use
the collected data from Forms 300 and
301 (Docket IDs 0035, 0061, 0063, 0065,
0066, 0078). For example, AIHA
commented, ‘‘Under a Total Worker
Health model, injury data about specific
tasks, operations, job titles, and
industries could be used for worker
training and education’’ (Docket ID
0030). Similarly, NIOSH commented,
‘‘While the BLS Annual Survey data
provide good metrics for injury risks by
industry, they are not ideal for engaging
workers and helping them to
understand the risks that they may face
in their own jobs.’’ This commenter also
explained that the narrative casespecific data that would be collected
under the rule could provide employees
with concrete, real-world, accounts on
how injuries and illnesses occur and
instruct them on how they can be
prevented (Docket ID 0035). The AFL–
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
CIO submitted similar comments
(Docket ID 0061).
The National Nurses Union
commented, ‘‘Public posting of this data
would enable workers and their
representatives to better understand the
scope of injuries and illnesses in
particular work sites and to do so in a
more timely and efficient manner.
While workers and their representatives
can access logs at their own workplace,
they currently cannot compare those
logs to other workplaces in the industry.
For nurses, patterns of injury and illness
could be identified, compliance with
existing standards could be more
efficiently examined, and emerging
occupational risks could be better
evaluated. When action to correct
workplace safety and health hazards is
inefficient or delayed, workers are
unnecessarily exposed to predictable
and preventable hazards. Delays in
correcting a workplace hazard
pointlessly cost the lives, limbs, and
livelihoods of NNU members and other
workers.’’ (Docket ID 0064).
Additionally, Worksafe commented
that unions and worker advocacy groups
will be able to use case-specific
information to seek safety
improvements, ‘‘Currently, these groups
can access Form 300 logs only by
requesting them from employers, and
the information may be provided in an
inefficient manner such as in PDF files
or on paper. As detailed below, unions
and worker advocacy groups have the
expertise to analyze this information to
identify necessary workplace fixes.
Electronic publication of more granular
data will make it possible for them to
better identify the cause of worker
injuries and illnesses, more efficiently
analyze large quantities of information,
and appropriately direct their efforts.’’
(Docket ID 0063). Worksafe also
provided several examples of how
establishment-specific, case-specific,
injury and illness data has been used by
employees and their representatives to
reduce workplace injuries and illnesses.
For example, it included a narrative
from a meatpacking labor organization:,
‘‘In 2008, leaders from the UFCW Tyson
meatpacking locals union accessed
Form 300 logs collected from one
meatpacking plant for a one-month
period. They analyzed injuries that
could be related to ergonomic hazards
and then placed red ‘‘sticky dots’’ on a
hand-drawn map of a human body,
depicting injury areas. The resulting
body map looked as though the hands
were dripping blood because so many
red dots were placed in that area. The
leaders were able to confirm that,
despite known under-reporting, a lot of
hand-specific injuries occurred amongst
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
their members. The leaders later
presented the body map in a meeting
with Tyson management, where it
became a powerful tool. This meeting
included an individual who had been in
charge of the company’s ergonomics
program some years earlier and who had
recently returned as a top-level
manager. Seeing the map, he agreed
with the union to start a series of efforts
to revitalize the ergonomics program.’’
(Docket ID 0063).
In contrast, some commenters stated
that the collection and publication of
certain data from Forms 300 and 301
could potentially harm employees,
including harm to employee privacy
and employability. For example, R.
Savage commented, ‘‘I have concerns
with organizations uploading their
OSHA Forms 300 and 301 because both
forms contain identifiable personal
information. My concern is the privacy
of the injured employee. Government
agencies have accidentally released
personal information in the past.
Removing the employee’s name in
OSHA form 300 and removing sections
1–9 of OSHA form 301 does not
guarantee that the employee will not be
identifiable.’’ (Docket ID 0018). Also, an
anonymous commenter stated, ‘‘This
would seem to make employees feel like
they need to share even more private
information to their employers than
they already do’’ (Docket ID 0044).
However, this last comment seems to be
based on a misunderstanding. This
rulemaking does not amend the type of
information that employers must enter
on their recordkeeping forms, nor does
it amend the recordkeeping forms used
to track injuries and illnesses. Instead,
this rulemaking addresses the electronic
submission to OSHA of certain
information on the recordkeeping forms
that employers are already required to
keep.
In response to the comments above,
OSHA agrees that employees will be
able to use the collected and published
data from Forms 300 and 301 to
improve workplace safety and health.
The collection and subsequent
publication of this data will allow
employees to analyze injury and illness
data that is not currently available. The
online availability of such data will
allow employees to compare their own
workplaces to other workplaces in their
industries. Also, with access to
establishment-specific, case-specific
data, employees will be better able to
identify emerging injury and illness
trends in their industries and push for
changes in safety and health policies to
better protect workers. In addition,
employees and their representatives will
be able to use the large amount of newly
PO 00000
Frm 00033
Fmt 4701
Sfmt 4700
47285
available case-specific information to
develop effective education and training
programs to identify and reduce
workplace hazards.
With regard to the comments
expressing concern about employee
privacy, as discussed elsewhere, OSHA
is confident that the agency will be able
to protect information that could
reasonably be expected to identify
individuals directly. The combination of
not requiring employers to submit
certain information, and the improved
technology used to identify and remove
personal information in the collected
data, greatly reduces the risk that
reasonably identifiable employee
information will be disclosed to the
public. Again, OSHA believes the
significant benefits to improved
workplace safety and health outweigh
the slight risk of information that could
reasonably be expected to identify
individuals directly being disclosed to
the public.
Other commenters stated that,
currently, employees and their
representatives only have online access
to general data from the Form 300A or
aggregate data from the BLS SOII
(Docket IDs 0063, 0078). Worksafe
commented, ‘‘electronic publication of
case-specific information on injuries,
illnesses, and even fatalities will allow
firms’ own employees to access timely
information that they can use to
improve their own workplaces’’ (Docket
ID 0063). Also, Unidos US, Farmworker
Justice, and Texas RioGrande Legal Aid
commented that, using currently
available BLS data, it is impossible to
know how many farmworkers
specifically suffer from heat-related
illnesses. These commenters explained
that with access to case-specific Forms
300 and 301 data, employees and their
representatives will be able to search
information online to identify specific
workplace hazards and direct their
resources to those hazards (Docket ID
0078).
On the other hand, some commenters
stated that employees already have
access to the information they need. The
National Propane Gas Association
commented, ‘‘Potential employees or
the general public can assess an entire
industry through the Bureau of Labor
Statistics data that OSHA referred to in
the proposal’’ (Docket ID 0050).
In response, OSHA disagrees with the
National Propane Gas Association that
potential employees only need access
the aggregate industry information
though the SOII. As discussed above,
aggregate data from the SOII, as well as
the general summary data from the
Form 300A, do not provide employees
with access to case-specific information
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
47286
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
at individual establishments. As
explained by other commenters, online
access to the establishment-specific,
case-specific, injury and illness data
will allow employees to search and
identify other establishments and
occupations in their industries and
compare the injury and illness data at
their establishments with the safest
workplaces. Also, both current and
potential employees will have better
access to health and safety information
about specific occupations and
workplaces and will be able to better
identify and understand the specific
risks they face in their own jobs.
Importantly, and as noted by
commenters, access to Forms 300 and
301 data will enable employees to track
specific injuries and illnesses, such as
heat-related illnesses, throughout their
industries.
Some commenters stated that, even
though employees have a right of access
to the OSHA recordkeeping forms under
29 CFR 1904.35, some workers may fear
retaliation from their employer if they
request access to information from the
300 and 301 forms at their workplace
(e.g., Docket IDs 0049, 0061, 0063, 0089,
0093). National COSH commented,
‘‘Making the case specific data publicly
available as proposed in the standard
will also increase worker safety for the
employees in the establishments with
100 or more employees. Workers are too
often scared of retaliation if they request
this information, even though
employers are required to provide
access to the full 300 logs to employees
upon request. This information will
allow employees in these
establishments access to this data
without fear of retribution and it will
help them better identify patterns of
injuries and hazards and to take actions
to have the hazards abated.’’ (Docket ID
0048). NELP submitted a similar
comment (Docket ID 0049).
Additionally, Centro del Derecho del
Migrante commented, ‘‘Public access to
these data will also improve worker
safety by allowing workers and their
advocates to better identify patterns of
injuries and hazards in workplaces and
across industries . . . Publishing this
information will allow employees in
these establishments access to this data
without fear of retribution, and to
demand abatement of hazards in their
own workplaces and industries.’’
(Docket ID 0089).
There were also comments stating
that, despite the access requirements in
29 CFR 1904.35, many employers either
deny or delay access to case-specific
information to employees and their
representatives. The United Food and
Commercial Workers Union (UFCW)
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
commented, ‘‘The public access
provisions of this rule allow workers to
get important information through the
OSHA website, rather than navigate
these hurdles with employers’’ (Docket
ID 0066). UCFW added that it has had
success in monitoring injury and illness
data and working with employers to
apply the data to injury and illness
prevention efforts, but noted that
workers in non-union workplaces do
not have the same ability to access the
data, and that this rule would help
‘‘bridge that gap’’ by providing all
workers with access (Docket ID 0066).
Another commenter explained that,
even when injury and illness
information is provided to employees,
the information is not in a usable
format. The Strategic Organizing Center
commented that, even when workers
request access to part 1904 information,
‘‘they do not have any specific right to
receive them in a way which achieves
the goal of facilitating the analysis. This
is especially important for workers at
the larger employers covered by the
proposed reporting requirement for the
300/301 data’’ (Docket ID 0079).
In response, and as discussed above,
OSHA’s recordkeeping regulation at 29
CFR 1904.35 already provides
employees and their representatives
with access to the three OSHA
recordkeeping forms kept by their
employers, with some limitations.
Under § 1904.35, when an employee,
former employee, or employee
representative requests access to certain
information on Forms 300 or 301, the
employer must provide the requester
with one free copy of the information by
the end of the next business day. Any
delay or obstruction by an employer in
providing the required information to
employees or their representatives
would be a violation of the
recordkeeping regulation. And,
retaliation against an employee for
requesting this information would
violate Section 11(c) of the OSH Act.
OSHA agrees with commenters who
stated that making establishmentspecific, case-specific, injury and illness
information available online will
enhance worker safety and health,
particularly where employees are
reluctant to request access to such
information. If workers fear possible
retaliation from their employer,
employees will easily be able to access
the case-specific data for their own
workplace online, thus avoiding the
need to request the information from
their employer. This uninhibited access
will allow employees to better identify
and address hazards within their own
workplaces.
PO 00000
Frm 00034
Fmt 4701
Sfmt 4700
In addition, since certain case-specific
injury and illness data will be posted
online, employees will easily be able to
search the collected information to
identify specific hazards at their
workplaces. Online posting also
eliminates the problem noted by some
commenters that, in some cases, when
employees request injury and illness
information from their employer, the
information is provided on paper or in
a format that is not searchable. Also, the
online posting of data allows employees
to conduct searches at any time to
identify injury and illness trends at their
workplaces.
Public Citizen commented,
‘‘[P]otential employees will benefit from
the availability of injury and illness data
from establishments as they make
informed decisions about employment.
Workers can compare injury rates
between potential employers and
choose to work for the safer employer.
This puts power in the hands of labor,
incentivizing employers to improve
safety given the competition for
workers.’’ (Docket ID 0093).
On the other hand, the Phylmar
Regulatory Roundtable OSH Forum
expressed concern that the Form 300
and 301 data could be used to build
worker profiles that result in hiring
decisions based on an employee’s injury
and illness history and a high number
of days away from work (Docket ID
0094). Similarly, Brian Evans
commented, ‘‘Since this data is public
record, future employers would have
access to this information and could
potentially discriminated against future
hires based on injured parties being
listed in a work place related injury. It
could also lead to retaliation if the
employee who was injured on the job
choses to stay employed in their current
role. Leadership, management,
administration could view them as
unsafe employees and limit their growth
potential at their organization, or seek
ways to terminate their employment due
to the filing of a work place injury.’’
(Docket ID 0080).
In response, OSHA agrees with the
comment from Public Citizen that the
published Form 300 and 301 data will
assist potential employees in
researching establishments where the
risk to workers’ safety and health is low.
At this time, potential employees only
have access to the limited injury and
illness data that is currently available to
the public as discussed above. Access to
Form 300 and 301 data not only
provides job seekers with an
opportunity to review information about
individual workplaces, but also allows
them to analyze the injury and illness
history of specific job titles within a
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
given industry or workplace. Potential
employees can also identify trends
among and between occupations, and at
specific sites within one workplace.
Also, as noted by Public Citizen, access
to this information by potential
employees should provide an incentive
to employers to improve workplace
safety and health. Specifically, the
publication of Form 300 and 301 data
will encourage employers with more
hazardous workplaces in a given
industry to make improvements in
workplace safety and health to prevent
injuries and illnesses from occurring,
because potential employees, especially
the ones whose skills are more in
demand, might be reluctant to work at
more hazardous establishments. OSHA
disagrees that employers will use the
published data from this final rule to
discriminate against current or potential
employees. With regard to potential
employees, and as discussed in more
detail in Sections III.B.6 and III.D of this
Summary and Explanation, because
OSHA is not requiring the electronic
submission of information that could
reasonably be expected to identify
individuals directly (e.g., name, contact
information), and because the agency is
using improved technology to identify
and redact such information before
publication, it is extremely unlikely that
employers will be able to use the
published data to identify specific
individuals and determine their injury
and illness history. As for current
employees, OSHA notes that employers
are already required under part 1904 to
include certain potentially identifiable
information about an employee when
they sustain a work-related injury or
illness (e.g., employers must enter the
injured or ill employee’s name on the
OSHA 300 log). As a result, the
publication of case-specific deidentified injury and illness data under
this final rule will have no impact on an
employer’s ability to identify their own
injured or ill employees.
After consideration of these
comments, OSHA has determined that
employees, potential employees, and
employee representatives will be able to
use the collected data from Forms 300
and 301 to improve workplace safety
and health, including through better
access to the data in usable formats and
without fear of retaliation. OSHA notes
the many examples in the rulemaking
record provided by commenters on not
only how employees and their
representatives currently use
establishment-specific, case-specific,
injury and illness data, but also on how
they will be able to use the greater
access to such information provided by
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
this final rule to reduce occupational
injuries and illnesses.
e. Beneficial Ways That Federal and
State Agencies Can Use the Data From
Forms 300 and 301
OSHA received a number of
comments in response to the question in
the NPRM about the ways in which
Federal (besides Federal OSHA, which
is addressed above) and State agencies
will be able to use the data collected
under this final rule to improve
workplace safety and health. Multiple
commenters, including the National
Employment Law Project, the Centro de
los Derechos del Migrante, and Richard
Rabin, noted generally that the
centralized collection of and access to
case-specific data will benefit the
worker safety and health efforts of
NIOSH, State agencies, and the public
health community (e.g., Docket IDs
0040, 0045, 0048, 0049, 0051, 0064,
0084, 0089). AIHA stated that ‘‘With the
limited resources available to most
federal and state worker health and
safety programs, targeted programs will
provide the most benefit for workers
and companies. These data will provide
information so that priorities can be set
and outcome trends monitored’’ (Docket
ID 0030).
There were also comments from
Federal entities about their intended
uses of the data. For example, NIOSH
commented, ‘‘As potential end users of
the data, NIOSH supports the
improvements that are being proposed
by OSHA. NIOSH believes that the
increased coverage of employers within
identified industries and the collection
of the additional detailed information
that is not currently electronically
captured will offer greater potential for
detailed and comprehensive data
analyses compared with the current
data. NIOSH uses occupational injury
data to monitor injury trends, identify
emerging areas of concern, and propose
research intervention strategies and
programs. Current OSHA data reflect a
smaller proportion of select industries
and offer limited details. This new rule
would offer greater coverage of select
industries and more detailed data,
which would increase the value and
utility of these occupational injury data
to NIOSH.’’ (Docket ID 0035,
Attachment 2; see also Docket ID 0089).
In addition, NIOSH’s comment listed
more specific purposes for which it can
use the collected data, including:
• Using the narrative data from Forms
300 and 301 for learning the particular
ways in which injuries occur in specific
work tasks and industries (citing work
NIOSH has done with narrative data
PO 00000
Frm 00035
Fmt 4701
Sfmt 4700
47287
from individual workers’ compensation
claims in Ohio).
• Using the coded OSHA Log case
data with narratives as a very large
training data set that could be used to
improve the autocoding of workers’
compensation claims. As NIOSH stated,
‘‘[a]utocoding workers’ compensation
claim narratives is critical to producing
injury rate statistics that can guide
prevention efforts by identifying high
and increasing rates of specific types of
injuries in specific industries and
employers.’’
• Improving the effectiveness and
efficiency of workplace inspections
through the evaluation of more
complete, detailed data on certain types
of injuries at specific workplaces. As an
example, NIOSH noted a series of
studies supported by NIOSH where
amputation cases at specific workplaces
were identified based on hospital
records and workers’ compensation
claims; the information was then
provided to Michigan OSHA, which
used it to target inspections.
• Linking workers’ compensation
data to OSHA logs in order to provide
a more complete set of information than
either data set provides separately. This
effort has the potential to improve
identification and prevention of
injuries, especially among temporary
employment agency workers, who
constitute a vulnerable population of
workers with a disproportionate burden
of workplace injuries.
• Collaborating with National
Occupational Research Agenda Councils
and OSHA to ‘‘improve dissemination
and use of the published data to
improve identification, mitigation, and
prevention of workplace injuries and
illnesses’’ (Docket ID 0035, Attachment
2).
National COSH agreed with NIOSH,
noting that making these data publicly
available will assure that researchers
and other agencies, like NIOSH, can use
the data for surveillance, evaluation,
and research purposes (Docket ID 0048).
In addition to the benefits of the data
at the Federal level, multiple
commenters addressed the value of the
final rule’s data collections to the States
and to State occupational safety and
health efforts. In the preamble to the
2019 final rule, OSHA acknowledged
‘‘that systems to collect this volume of
data would be costly for States to
implement. Centralized collection might
be more efficient and cost-effective than
state-by-state collection . . .’’ At that
time, OSHA stated that it had ‘‘doubts
about the usefulness of the data and
concerns about the costs of collection,’’
but reiterated that States were
nonetheless ‘‘empowered to do as
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
47288
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
OSHA ha[d] and weigh the substantial
costs of collection against the likely
utility of the data’’ (84 FR 394). In
response to the NPRM in the current
rulemaking, many commenters made it
clear that State efforts to improve
workplace safety and health will benefit
from the data that is made available by
this rule, and that a national collection
system is a far more efficient means of
achieving these benefits than individual
State efforts. National COSH noted
similar benefits at the State level as at
the Federal level, stating that State and
community public health agencies will
be able to use the data to better
understand the hazards in high-risk
establishments and then target those
establishments for assistance and
information regarding best practices
(Docket ID 0048). Likewise, the Council
of State and Territorial Epidemiologists
(CSTE) commented, ‘‘Access to these
data would also facilitate public health
agency efforts to reduce work-related
injuries and illnesses in the States and
significantly increase the potential for
more timely identification of emerging
hazards. Electronic collection of existing
records is in line with 21st century
advances in health data collection made
possible by advances in information
technology that involve centralized
collection, analysis, and dissemination
of existing data from multiple entities.
These include, for example, collection
at the State level of data on all
hospitalizations, all emergency room
visits, and all ambulance runs, and in
over 20 States, data on all public and
private insurance claims (excluding
workers’ compensation claim
data). . . . Making this information
broadly available is consistent with the
growing recognition, predominant in the
patient safety field, that transparency—
sharing of information, including
information about hazards—is a critical
aspect of safety culture.’’ (Docket ID
0040).
In addition, CSTE provided specific
examples of ways in which the
electronic reporting of case-level
workplace injury and illness data can
enhance State health department and
others’ efforts to reduce work-related
injuries and illnesses and hazards in
States and communities. These
examples included:
• Identification of emerging
problems: ‘‘The ability to search file
level data not only in the establishment
where the index case is/was employed
but also other establishments in the
industry to identify similar cases has the
potential to facilitate timely
identification of emerging hazards’’ that
are ‘‘both new and newly recognized.’’
CSTE discussed an example from
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
Michigan, where a State agency
identified several deaths associated with
bathtub refinishing, raising new
concerns about the hazards of chemical
strippers used in this process.
Subsequent review of OSHA IMIS data
identified 13 deaths associated with
bathtub refinishing in a 12-year period.6
These findings from the State and
Federal databases together led to the
development of educational information
about the hazards associated with tub
refinishing and approaches to reducing
risks; this material was disseminated
nationwide to companies and workers
in the industry.
• Targeting establishments for
preventive outreach in our communities:
‘‘Public health investigations of workrelated incidents result not only in
prevention recommendations to those
involved in the incident, but in case
studies which allow us to then take
lessons learned and disseminate these
lessons broadly to other stakeholders.
The availability of information on highrisk establishments will allow for more
targeted and efficient information
dissemination. The ability to identify
lower risk establishments may also
provide new opportunities to learn from
employers who are implementing best
practices—and potentially to help
identify under-reporters. The
availability of establishment specific
information offers the opportunity to
incorporate occupational health
concerns in community health
planning, which is increasingly
providing the basis for setting
community health and prevention
priorities.’’
• Improvement of data quality and
use of the data: ‘‘Observations from
interviews with OSHA record-keepers
in Washington State suggest that
incomplete OSHA records arise in part
from lack of knowledge or confusion on
the part of some employers about how
to accurately and consistently record
OSHA reportable cases and from poor
employer prioritization of this
task. . . . Electronic data collection and
the subsequent public release of the data
are means to improve data quality,
knowledge, and compliance with OSHA
recordkeeping requirements. Electronic
collection of data offers the opportunity
to provide employers with electronic
tools (e.g., prompts, definitions,
consistency edits, and industry-specific
6 The OSHA Integrated Management Information
System (IMIS) was designed in 1991 as an
information resource for in-house use by OSHA
staff and management, and by State agencies which
carry out federally approved OSHA programs. It
was replaced by the OSHA Information System
(OIS) as the primary repository of OSHA’s data,
starting in 2012.
PO 00000
Frm 00036
Fmt 4701
Sfmt 4700
drop-down lists) to improve the quality
of the data reported. Standardized
feedback to establishments and
potential reports of establishmentspecific data would promote the use of
the data by employers and workers to
set health and safety priorities and
monitor progress in reducing workplace
risks.’’
• Improvements in Medical Care:
‘‘This record keeping rule, by
facilitating the diagnosis of work-related
conditions, will allow for better
diagnosis and management of workplace
illnesses by health care providers in the
community, thereby contributing to a
reduction in morbidity, absenteeism,
and health care costs.’’ CSTE described
an example from Massachusetts, which
has a sharps injury prevention control
program. This program supplements
OSHA’s bloodborne pathogens standard
by requiring hospitals to report select
data from the OSHA-required log of
sharps injuries annually to the
Massachusetts Department of Public
Health (MDPH). In recent years, data
from all hospitals, which range in size
from less than 150 to over 20,000
employees, have been submitted
through a secure electronic
transmission. Annual hospital-specific
data and statewide reports prepared by
MDPH provide information on patterns
of sharps injuries and sharps injury
rates for use by hospitals and hospital
workers as well as MDPH. As CSTE
stated, this experience in Massachusetts
‘‘indicates the utility of electronic
reporting of person level occupational
injury data for targeting prevention
efforts at multiple levels’’ (Docket ID
0040).
The International Brotherhood of
Teamsters noted that they agreed with
these comments from CSTE (Docket ID
0083).
Similarly, the Strategic Organizing
Center commented that States can use
the collected data to compare injury and
illness rates at specific establishments to
the rates for that industry in general.
The SOC also emphasized that ‘‘OSHA’s
collection and distribution of . . . key
metrics will finally provide a measure of
transparency to workers, OSHA and its
state partner agencies, the media and
the public about the nature of the
serious injuries afflicting workers at
large employers in hazardous industries
across the nation’’ (Docket ID 0079).
OSHA also received comments from
the States themselves (e.g., Docket IDs
0045, 0069, 0084). One comment that
was strongly supportive of the rule came
from the Seventeen AGs. These State
officials represented nine States with
OSHA-approved State Plans that cover
both private and State and local
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
government workers (California, Hawaii,
Maryland, Michigan, Minnesota,
Nevada, New Mexico, Oregon, and
Vermont), four States that have OSHAapproved State Plans that cover State
and local government workers only
(Connecticut, Illinois, New Jersey, and
New York) and four States without a
State Plan (Delaware, the District of
Columbia, Massachusetts, Rhode
Island). Their comment cited increased
transparency regarding workplace
safety, as well as benefits to key
interested parties (including employees,
consumers, employers, researchers, and
the States themselves) (Docket ID 0045).
The Seventeen AGs commented that
States planned to use the collected data
for multiple specific purposes,
including to: improve targeting and
outreach (New Jersey); develop the next
strategic inspection plan (Connecticut);
ease administrative burden (Hawaii);
target recordkeeping inaccuracies
(Illinois); prioritize and increase
efficiency of enforcement efforts
(Maryland); improve the ability of a
State advisory board on occupational
safety and health to develop effective
workplace injury prevention
programming (Massachusetts); discern
patterns in the frequency and severity of
injuries (Minnesota); and inform future
enforcement plans (Nevada). With the
data that will become available to them,
States will also be able to institute or
improve targeted training and outreach
programs, identify and investigate
incidents in particular categories of
concern (such as those that lead to
ongoing disability and require
accommodations under the Americans
with Disabilities Act), compare the data
to other data sources (such as workers’
compensation data), identify workplace
injury and illness underreporting,
improve their ability to consider
companies’ workplace safety and health
records when making contracting
decisions, and increase the specific
workplace injury and illness
information available to State health
agencies (Docket ID 0045). The AFL–
CIO touted the prevention index created
by Washington State, which operates
both an OSHA State plan and the State
workers’ compensation program. The
State ‘‘utilizes the detailed injury and
illness data collected through its
workers’ compensation system, similar
to the data contained in the Form 300
and Form 301, to develop a prevention
index. The index identifies the most
common and costly injuries and
illnesses and the industry sectors with
the greatest potential for prevention’’
(Docket ID OSHA–2013–0023–2088,
Attachment 1).
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
In addition, the Seventeen AGs noted,
‘‘[T]hese benefits will only accrue if
OSHA collects and publishes such data.
Not all states have the resources to
create and manage their own databases,
and, in any event, it is costlier and more
inefficient for individual states to create
separate databases. Data from a single
jurisdiction is also much less likely to
reveal patterns in workplace health and
safety. Uniform national data collection
efforts, by contrast, will also allow states
to benchmark their performance—
overall or in specific industries—against
peer states in ways that might encourage
or promote reforms, interventions, or
legislation to address workplace safety
issues. Moreover, even if the [s]tates are
not able to engage in targeted
enforcement now, it is nonetheless
important to begin collecting and
publishing more detailed data
now. . . . And when the [s]tates
implement targeting in the future,
having a larger database of historic data
on which to ‘train’ targeting algorithms
will ensure that these algorithms are
more accurate.’’(Docket ID 0045). The
International Brotherhood of Teamsters
commented with support for ‘‘the
benefits touted by the letter [from the
Seventeen AGs] on the need for public
reporting of detailed injury and illness
information to the [s]tates’ enforcement
and regulatory agencies’’ (Docket ID
0083).
The California Department of
Industrial Relations (DIR), Division of
Occupational Safety and Health (Cal/
OSHA), and the Connecticut Council on
Occupational Safety and Health
(ConnectiCOSH) also provided separate
comments in support of the proposed
rule, citing benefits to worker safety
(Docket IDs 0069, 0084). Cal/OSHA
stated that the availability of the
additional data would aid in
‘‘identifying patterns that are currently
masked by the aggregation of injury/
illness data by industry in existing data
sources.’’ Furthermore: ‘‘[D]etailed case
level data could be used when
proposing new prevention-oriented
regulations to California’s Occupational
Safety & Health Standards Board
(OSHSB), when responding to petitions
to OSHSB for new or amended
standards, and in the creation of specific
compliance assistance materials
oriented to existing or emerging
workplace safety problems.’’ Cal/OSHA
also emphasized that centralized data
collection by OSHA ‘‘is the most
efficient and cost-effective way to
compile and utilize the data for
prevention purposes,’’ and the cost to
States of ‘‘setting up parallel systems
. . . would be significant’’ (Docket ID
PO 00000
Frm 00037
Fmt 4701
Sfmt 4700
47289
0084; see also Docket ID OSHA–2013–
0023–2088, Attachment 1).
After consideration of these
comments and others in the record,
OSHA has determined that the expected
benefits to Federal and State agencies
overcome any doubts the agency
expressed in the 2019 final rule related
to the usefulness of the data and the
costs of collection. OSHA has
determined that Federal and State
agencies will be able to use the collected
data to improve workplace safety and
health. The agency especially notes the
benefits for States, which may not have
the resources to create and manage their
own data collections; the inefficiency of
multiple State-specific databases versus
a single national database; and the
advantages of a uniform national data
collection requirement. OSHA finds
particularly convincing the examples of
State and Federal entities’ past and
planned future uses of the data to
monitor, target, and prevent
occupational injuries and illnesses.
f. Beneficial Ways That Researchers Can
Use the Data From Forms 300 and 301
Multiple commenters provided
examples of ways that researchers could
use the collected data to improve
workplace safety and health. Most
generally, AIHA commented,
‘‘Researchers require a stable data
source to conduct studies that depend
on unbiased, complete data sets. By
collecting and making the data available
to researchers, stratified analyses with
sufficient power can be conducted that
will make the results more generalizable
to specific workers and industries.’’
(Docket ID 0030). Similarly, Centro del
Derecho del Migrante commented,
‘‘Public access to these data will better
allow organizations like CDM to identify
patterns of injuries and hazardous
conditions in workplaces and advance
worker safety and health’’ (Docket ID
0089).
Numerous commenters pointed out
the limitations of currently available
data from BLS, and the need for more
data to produce statistically significant,
robust results for more detailed
categories of injuries, establishments,
and employers. NIOSH commented that
the release of summary injury data for
all establishments of 20 or more
employees in certain industries and of
individual injury case data for injuries
in establishments of 100 or more
employees in certain industries would
produce more accurate and statistically
meaningful data than the BLS Annual
Survey can provide ‘‘because the
number of included injury records
would be much greater than that
included in the BLS sample of
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
47290
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
establishments of this size in these
industries.’’ NIOSH stated that ‘‘the
proposed data collection in higher risk
industries would enable more detailed
and accurate statistics on the state as
well as the national level.’’ In addition,
the new data collection OSHA plans to
make available ‘‘would provide
establishment-specific, case-specific
injury and illness data for analyses that
are not currently possible.’’ NIOSH also
stated that the release of the data
collected by OSHA should make it
possible to produce meaningful
statistics and perform more in-depth
analysis by combining records across
several years by industry, employer, or
establishment, which is not possible
with the BLS SOII data that is currently
available (Docket ID 0035). The
International Brotherhood of Teamsters
concurred with this comment (Docket
ID 0083).
The National Employment Law
Project (NELP) commented on the need
for expanded, more detailed data:
‘‘NELP recently used the currently
available establishment-level Injury
Tracking Application data to conduct
state-specific analyses on injury and
illness rates in the warehousing sector.
However, with access only to
electronically submitted data from Form
300A and not from Forms 300 and 301,
we were limited by an inability to
disaggregate by the types of serious
injuries and serious illnesses. In
addition, having access to case-specific
injury and illness data as reported in
300 and 301 forms would have allowed
NELP to identify specific injury and
illness trends, and correlate these with
job titles, in order to more directly
address and prevent hazards that put
workers at risk.’’ (Docket ID 0049).
The AFL–CIO commented that access
to more detailed data would provide
researchers with an invaluable source of
information on workplace safety and
health hazards (Docket ID 0061). The
AFL–CIO also pointed to the limitations
for researchers of the BLS SOII data:
‘‘Studies have shown that the SOII data
have significant limitations and that
consistent and representative mandatory
reporting would provide a more
accurate data source for research on
causes of injuries and illnesses and
prevention methods to track
improvements and emerging issues.’’
(Docket ID 0061).
Commenters also provided examples
of how researchers have used data to
improve workplace safety and health.
For example, The Strategic Organizing
Center described its analysis of ITA data
to prepare reports on occupational
injury rates among warehouse workers.
It stated: ‘‘This example, we believe,
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
completely vindicates OSHA’s original
intent in establishing the Injury
Tracking Application, including the
public release of the data received from
employers. Absent the easy availability
of these data, it would be difficult if not
impossible for those outside the
management structure of major
employers to understand the basic
details of the worker safety and health
situation at these companies, much less
to force employers with deficient
performance to change their practices. It
is vital that employers who attempt to
misrepresent the failures of their worker
safety and health systems understand
that they are subject to the independent
oversight and review that can only be
offered by broadly-available distribution
of key metrics, such as the numbers,
rates and characteristics of worker
injuries and illnesses.’’ (Docket ID
0079).
The Strategic Organizing Center also
pointed to injury research in the hotel
industry as an example of the value of
OSHA’s providing the 300 and 301 data
for further analysis: ‘‘In the mid-2000’s,
as the hotel industry was rapidly
introducing heavier mattresses and
increased workloads for housekeepers,
the hotel union UNITE HERE undertook
an analysis of the 300 logs and
employee personnel demographic data
to determine injury trends by injury
type, job title, gender and race/ethnicity.
We published [a] study by Buchanan et
al in 2010, the value of which OSHA
recognized in the preamble to the 2016
Final Injury Tracking Rule (81 FR
29685, Col. 3). It revealed that the rates
of different injury types varied greatly
across the study population of 55,327
person-years over a 3-year period at 50
hotels in five of the largest US hotel
chains. We found that MSD’s were
highest among housekeepers, and acute
traumatic injuries highest among cooks/
kitchen workers, and injury rates higher
among women than men. Much of the
various increased risks was driven by
the exceptionally high risks endured by
hotel housekeepers (7.9 injuries/100
person-years).’’ (Docket ID 0079).
The Communication Workers of
America (CWA) commented on the
value of access to large datasets of
workplace injury and illness
information. It gave examples of data
analyses it has conducted to address
safety and health issues:
• CWA has analyzed large quantities
of OSHA Log data for certain regions
from some large telecommunications
employers. It was able to compare
aggregate worksite data from two
different regions for the same employer
for the same year. Its comparison of
aggregate OSHA 300 Log data from two
PO 00000
Frm 00038
Fmt 4701
Sfmt 4700
different regions for the same employer
shows a large discrepancy in workrelated COVID cases recorded on the
OSHA 300 Logs and also demonstrates
the value of the Cal/OSHA COVID
standard’s reporting requirements given
the increased reporting for sites in
California.
• Recent and past analyses by a
telecommunications employer of its
OSHA Log data for work locations in
NY has shown the toll of injuries and
lost work days related to manhole cover
lifting. The employer, the union and
union members worked together to
conduct ergonomic assessments using
biometric sensors to evaluate the strain
of manhole cover lifting using different
designs of manhole cover lifters. The
biometric assessments combined with
worker feedback led to design of a new,
vehicle mounted manhole lifting device.
The employer will likely use the newlyapproved manhole cover lifters in other
areas of the country where it operates.
Aggregate OSHA 300 Log data will aid
in evaluating the effectiveness of this
intervention in reducing and preventing
manhole cover lifting injuries.
• An analysis by one employer of
OSHA recordable injury/illness data for
the previous year from all worksites on
Long Island, NY revealed there had been
over 11,000 lost work days due to
extension ladder accidents. After
training, the number of extension ladder
accidents in those work locations
dropped significantly, to almost none.
This initiative looked at aggregate data
from one employer’s multiple worksites.
Establishment-specific data, on its own,
would not have revealed the extent of
the problem and the need for
interventions, nor would it have
incentivized the employer to take action
and provide training.
• Analyses of OSHA 300 Log data has
led to multiple safety improvements in
CWA-represented manufacturing
facilities with active health and safety
committees. At locations where CWA
members build engines and engine
parts, OSHA 300 Log data analyses has
resulted in ergonomic assessments and
training, the provision of better PPE,
and improved safety protocols.
(Docket ID 0092)
After consideration of these
comments, OSHA has determined that
researchers will be able to use the
collected data to improve workplace
safety and health. OSHA finds
particularly convincing the examples of
past and planned future uses of the data
by researchers to monitor, target, and
prevent occupational injuries and
illnesses.
E:\FR\FM\21JYR2.SGM
21JYR2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
ddrumheller on DSK120RN23PROD with RULES2
g. Beneficial Ways That Workplace
Safety Consultants Can Use the Data
From Forms 300 and 301
In the proposed rule, OSHA asked,
‘‘What are some ways that workplace
safety consultants could use the
collected data to improve workplace
safety and health?’’ (87 FR 18547).
OSHA received several comments about
ways that workplace safety consultants
could use the collected data to improve
workplace safety and health (Docket IDs
0026, 0030, 0035). Most generally, AIHA
commented that the value that
workplace safety consultants bring to a
company is directly related to the
availability of high-quality data, and
‘‘[c]ompanies that engage consultants
depend on the consultant to be fully
informed of the inherent risks of
specific operations, tasks, and industries
so that the recommendations for
improvement and correction are based
on evidence’’ (Docket ID 0030). Justin
Hicks commented that the collected
data would be useful ‘‘[a]s a young
safety professional . . . when educating
my employer on safety culture’’ (Docket
ID 0026). Additionally, NIOSH
identified a number of ways in which
workplace safety consultants might use
this data, including ‘‘identifying and
disseminating useful facts about the
comparative safety performance of
establishments, employers, and
employer groups,’’ and ‘‘analy[zing]
patterns of injury causation at their
client workplaces and appropriate
comparisons of workplaces’’ (Docket ID
0035, Attachment 2). NIOSH also noted
that consultants’ work with the
collected data ‘‘promises to assist other
stakeholders in identifying patterns of
injuries and targets for prevention and
to complement the research
disseminated by state and federal
agencies’’ (Docket ID 0035, Attachment
2).
OSHA agrees with these commenters
that the collected data will help
workplace safety consultants to be fully
informed of the risks of specific
operations, tasks, and industries and, in
turn, will give consultants the
information necessary to advise their
employers on safety and health
practices. Accordingly, OSHA has
determined that workplace safety
consultants and other workplace safety
professionals will be able to use the
collected data to improve workplace
safety and health.
h. Beneficial Ways That the Public Can
Use the Data From Forms 300 and 301
In the proposed rule, OSHA asked,
‘‘What are some ways that members of
the public and other stakeholders, such
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
as job-seekers, could use the collected
data to improve workplace safety and
health?’’ (87 FR 18547). Several
commenters provided insights about
how the general public, the media, and
prospective employees will be able to
use the collected data to improve
workplace safety and health. With
respect to the general public, Hunter
Cisiewski commented that the public
availability of data would ‘‘allow the
public to hold companies accountable
for creating unsafe workplaces’’ and
‘‘make informed decisions about . . .
what industries they should support,’’
as well as ‘‘incentivize employers to
create safe working conditions’’ (Docket
ID 0024). The Seventeen AGs
commented that the availability of data
would benefit consumers, ‘‘who can use
information about employer safety to
inform their purchasing and contracting
decisions’’ (Docket ID 0045). In
addition, Worksafe commented that the
press and advocacy organizations could
‘‘monitor and report on the data’’
(Docket ID 0063).
Commenters also addressed how job
seekers could use the collected data to
improve workplace safety and health
(Docket IDs 0020, 0024, 0030, 0063,
0082). For example, Hunter Cisiewski
commented that the data would allow
prospective employees ‘‘to make
informed decisions about where they
should work’’ (Docket ID 0024). AIHA
commented that access to the collected
data would allow job seekers to ‘‘inquire
about specific health and safety
practices or culture during interviews,’’
help them to be more informed, and
encourage prospective employers to be
more transparent (Docket ID 0030).
Similarly, Worksafe commented that the
availability of injury and illness data
would allow job seekers ‘‘to better
assess the types, severity, and frequency
of injuries and illnesses in a particular
workplace’’ and make more informed
decisions regarding their employment’’
(Docket ID 0063). Additionally, the
Seventeen AGs commented that public
access to detailed injury and illness data
would ‘‘empower’’ workers who are
most impacted by occupational hazards,
i.e., low-income workers and workers
belonging to racial and ethnic minority
groups, ‘‘to make informed decisions
regarding where they choose to work’’
(Docket ID 0045).
On the other hand, multiple
commenters asserted that the data
would not be useful to the public. The
overarching concern of these
commenters was that the public would
lack the context necessary for the data
to provide an accurate picture of an
establishment’s safety and health
practices (Docket IDs 0021, 0043, 0050,
PO 00000
Frm 00039
Fmt 4701
Sfmt 4700
47291
0052, 0053, 0062, 0071, 0075, 0086,
0090). For example, the National
Propane Gas Association commented
that the collected data would ‘‘mislead’’
the public because it is ‘‘only a fraction
of information regarding a workplace’’
and, in order to provide accurate
information about worker safety, OSHA
would also need to publish information
such as ‘‘the number of uninjured or
healthy individuals working for the
establishment; . . . the safety
procedures or policies implemented,
days/weeks/months/years without
injuries or illnesses; . . . a comparison
of the frequency or average for the
industry versus the specific
establishment; . . . actions by the
employee that caused or contributed to
the injury or illness; . . . [and] the
corrective actions by the establishment’’
(Docket ID 0050). Similarly, Angela
Rodriguez commented that injury and
illness data may be misleading ‘‘without
the explanation of contributing root
causes’’ (Docket ID 0052). Likewise,
Representatives Virginia Foxx (R-North
Carolina) and Fred Keller (RPennsylvania) commented that ‘‘an
employer’s injury and illness logs say
nothing meaningful about an employer’s
commitment to safety and compliance
with OSHA standards,’’ and ‘‘[m]any
factors outside an employer’s control
may lead to workplace injuries and
illnesses’’ (Docket ID 0062). And, the
Plastics Industry Association
commented that when viewing an
employer’s injury and illness data in
isolation, ‘‘[t]here is insufficient context
to draw conclusions about the
employer’s safety program or practices’’
(Docket ID 0086).
Commenters pointed to a number of
reasons for their concern about
misinterpretation or misleading data.
Some commenters expressed concern
that the collected data may be
misleading specifically because it may
include injuries or illnesses that are not
the employer’s fault (Docket IDs 0021,
0043, 0052, 0075, 0086, 0090). For
example, the Motor and Equipment
Manufacturers Association and the
Flexible Packaging Association
commented that data may be
misinterpreted because many workplace
injuries occur due to circumstances
entirely outside of an employer’s control
(Docket ID 0075, 0090). More
specifically, AWCI commented that
some injuries and illnesses are ‘‘due
solely to employee misconduct,’’ or ‘‘the
fault of neither the employer nor the
employee’’ (Docket ID 0043). AWCI also
commented that ‘‘falsified or
misrepresented workplace injury or
illness claims’’ may result in inaccurate
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
47292
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
data, as will workplace fatalities that are
later determined not to be work-related
(Docket ID 0043). Similarly, Angela
Rodriguez commented that under 29
CFR 1904.5(b)(2)(ii), employers are
required to record injuries and illnesses
for which symptoms surface at work but
result solely from a nonwork-related
event or exposure that occurs outside
the work environment (Docket ID 0052).
The Chamber of Commerce claimed that
injury and illness data are unreliable
because workers’ compensation
programs and the presence of collective
bargaining agreements affect the number
of injuries and illnesses reported to
OSHA, therefore, ‘‘[t]wo employers with
the same kinds of injuries will be
viewed by OSHA and the public as
differently culpable’’ (Docket ID 0088,
Attachment 2). Finally, the Plastics
Industry Association commented that
‘‘many injuries that have no bearing on
an employer’s safety program must be
recorded,’’ and pointed to injuries
resulting from employee misconduct,
substance abuse, and accidents as
examples (Docket ID 0086).
Other commenters were concerned
that the collected data would lead to
misinterpretation because the data do
not provide an accurate picture of what
is currently happening or what will
happen in the future. The Motor and
Equipment Manufacturers Association
commented generally that ‘‘injury and
illness data would become stale by the
time it is made public’’ (Docket ID
0075). AWCI commented that ‘‘[l]agging
indicators . . . such as OSHA
recordable/reportable injury and illness
data[ ] have shown to be poor indicators
of future safety and health performance’’
because they ‘‘present information about
what has occurred in the past with no
mechanism for accurately predicting
what may occur in the future’’ (Docket
ID 0043).
Still other commenters said that the
public would be even more likely to
misinterpret data from small businesses.
AWCI commented that ‘‘the formula
that OSHA uses [to calculate injury and
illness rates] is based on 100 full-time
workers and the denominator in the
equation is the total number of hours
worked by all employees,’’ so ‘‘the
resulting incidence rates often depict
extremely inaccurate perceptions of
smaller establishments’ safety and
health cultures and past safety and
health performances’’ (Docket ID 0043).
Similarly, the Associated Builders and
Contractors commented, ‘‘by expanding
the mandate to 100 or more employees
from 250, OSHA’s proposal puts smaller
companies at a disadvantage by making
them appear to be less safe than larger
companies by comparison. A smaller
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
company with the same number of
injuries and illnesses as a larger
company is likely to have a higher
incident rate’’ (Docket ID 0071).
In response, OSHA agrees with those
commenters who stated that the public
will be able to use the published
establishment-specific, case-specific,
injury and illness data to improve
workplace safety and health. The online
availability of such data will allow
members of the public to determine
which workplaces in a particular
industry are the safest, and identify
emerging injury and illness trends in
particular industries. As noted by
commenters, the public may use this
data to make decisions about what
companies and industries they support
and want to work for. The availability
of data will also facilitate the press’s
ability to monitor and report on it,
which will further ensure that members
of the public are well-informed and can
make decisions accordingly. For these
reasons, and as explained above, OSHA
finds that public access to this data will
ultimately help to improve workplace
safety and health.
Generally, to the extent the
commenters suggest that the casespecific data from Forms 300 and 301
will not be useful information to the
public, OSHA disagrees, and finds that
the benefits of expanded public access
to this data outweigh commenters’
concerns. As OSHA explained in the
final rule on Occupational Injury and
Illness Recording and Reporting
Requirements (January 19, 2001), injury
and illness records have long made
employers more aware of the injuries
and illnesses occurring in their
workplaces, and are essential in helping
employers to effectively manage their
safety and health programs.
Additionally, such records ensure
employees are better informed about
hazards they face in the workplace and
encourage employees to both follow safe
work practices and report workplace
hazards to employers (66 FR 5916–67).
For similar reasons, as identified by
commenters and explained above, the
public can use such data to improve
workplace safety and health.
However, OSHA acknowledges
commenters’ concerns about potential
misinterpretation and recognizes that
the public may need more assistance in
understanding the data than employers,
researchers, and other similar interested
parties. OSHA recognizes the need to
provide information to the public to aid
their understanding of the data. The
web page for the ITA (https://
www.osha.gov/Establishment-SpecificInjury-and-Illness-Data) contains several
explanations of the data that address
PO 00000
Frm 00040
Fmt 4701
Sfmt 4700
commenters’ specific concerns,
including:
• ‘‘Recording or reporting a workrelated injury, illness, or fatality does
not mean that the employer or employee
was at fault, that an OSHA rule has been
violated, or that the employee is eligible
for workers’ compensation or other
benefits.’’
• ‘‘While OSHA takes multiple steps
to ensure the data collected is accurate,
problems and errors invariably exist for
a small percentage of establishments.
OSHA does not believe the data for the
establishments with the highest rates in
these files are accurate in absolute
terms. Efforts are made during the
collection cycle to correct submission
errors; however, some remain
unresolved. It would be a mistake to say
establishments with the highest rates in
these files are the ‘most dangerous’ or
‘worst’ establishments in the nation.’’
The web page for the data collected
through the OSHA Data Initiative
(https://www.osha.gov/ords/odi/
establishment_search.html) also
includes the second explanatory note.
OSHA also notes the many examples
in the rulemaking record provided by
commenters on not only how various
interested parties currently use
establishment-specific, case-specific,
injury and illness data, but also on how
they will be able to use the greater
access to such information provided by
this final rule to reduce occupational
injuries and illnesses. Some
commenters’ concerns seem to hinge on
the assumption that the general public
lacks the sophistication necessary to
understand the collected data. However,
this section of the preamble provides
many examples of the ways in which
employers, employees, government
agencies, researchers, and other
interested parties will use this data to
perform more detailed and accurate
analyses of workplace safety and health
practices, create education and training
programs to reduce workplace hazards,
develop resources, and conduct studies.
To the extent that members of the public
require additional context to make sense
of injury and illness data, other
interested parties will make that
information available through their own
use of the data.
Additionally, as explained in more
detail in Section III.B.14 of this
Summary and Explanation, commenters
provided suggestions for ways to make
published data more useful to interested
parties. The Seventeen AGs also
commented that the public may only
benefit from the publication of injury
and illness data ‘‘if it is aware of its
existence,’’ and suggested that OSHA
‘‘evaluate and choose effective avenues
E:\FR\FM\21JYR2.SGM
21JYR2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
ddrumheller on DSK120RN23PROD with RULES2
for publicizing the availability of the
data’’ (Docket ID 0045). OSHA will take
these comments into consideration
when designing tools and applications
to make the published data more
accessible and useful to interested
parties.
After consideration of these
comments, OSHA has determined that
members of the public and other
interested parties will be able to use the
collected data to improve workplace
safety and health. OSHA will continue
to consider additional ways to assist the
public in both awareness of and
understanding the data, including
through web-based search applications
and other products. As explained in the
preamble to the proposed rule, the
agency plans to make the data available
and able to be queried via a web-based
tool. Interested parties who are
interested in learning about
occupational injuries and illnesses will
have access to information on when
injuries and illnesses occur, where they
occur, and how they occur. In addition,
interested parties can use the tool to
analyze injury and illness data and
identify patterns that are masked by the
aggregation of injury/illness data in
existing data sources. As explained in
the preamble to the proposed rule, in
developing a publicly accessible tool for
injury and illness data, OSHA will
review how other Federal agencies, such
as the Environmental Protection Agency
(EPA), have made their data publicly
available via online tools that support
some analyses.
For the above reasons, and based on
the record in this rulemaking, OSHA
believes that the electronic submission
requirements, along with the subsequent
publication of certain injury and illness
data, set forth in this final rule will
result in significant benefits to
occupational safety and health. OSHA
also concludes that the significant
benefits to employers, employees,
OSHA, and other interested parties
described in this section outweigh the
slight risk to employee privacy.
Accordingly, OSHA has determined that
it is necessary and appropriate to
require certain establishments to
electronically submit case-specific,
establishment-specific, data from their
Forms 300 and 301 to OSHA once a
year.
5. The Freedom of Information Act
(FOIA)
Many of the comments OSHA
received on proposed § 1904.41(a)(2)
related not to the proposed requirement
to submit information from OSHA
Forms 300 and 301, per se, but rather to
OSHA’s plan to make some of the data
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
which it receives publicly available on
its website (as detailed above). The
agency is doing so for two main reasons.
First, based on its experience with
previous FOIA requests for particular
establishments’ Forms 300A, 300, and
301 (as contained in inspection files)
and for all Form 300A data submitted
electronically, OSHA anticipates that it
will receive FOIA requests for the Form
300 and 301 data submitted under the
requirements of this final rule. Once the
agency releases the Form 300 and 301
data submitted under the requirements
of this final rule (after applying the
appropriate FOIA exemptions), OSHA
anticipates (again based on the previous
FOIA requests) that it would be required
to post the released information online
under 5 U.S.C. 552(a)(2)(D), which
requires agencies to ‘‘make available for
public inspection in an electronic
format . . . copies of all records . . .
that because of the nature of their
subject matter, the agency determines
have become or are likely to become the
subject of subsequent requests for
substantially the same records; or . . .
that have been requested 3 or more
times[.]’’ OSHA finds that proactively
releasing the electronically submitted
information from establishments’ Forms
300 and 301 would conserve resources
that OSHA would otherwise spend
responding to such FOIA requests
(before the information would be posted
online after the agency’s initial
responses to such requests).
Second, and more importantly from a
safety and health perspective, as
explained in detail in Section III.B.4 of
this Summary and Explanation, above,
OSHA believes that the public release of
case-specific data from establishments’
Forms 300 and 301 will generate many
worker safety and health benefits. In
short, OSHA anticipates that employers,
employees, Federal and State agencies,
researchers, workplace safety
consultants, members of the public, and
other interested parties can use the
collected data to improve workplace
safety and health. (Comments related to
benefits are addressed above in Section
III.B.4 of this Summary and
Explanation.)
OSHA explained both of these reasons
in the proposal (see 87 FR 18535,
18542). OSHA also discussed the
similarities between the way it intends
to treat the data it would collect and
publish under this rule and the way it
responds to requests for the same data
under FOIA. OSHA explained that it
already collects Forms 300 and 301
during many inspections, and often
receives requests for them under FOIA.
As a rule, OSHA releases copies of the
Forms 300 and 301 for closed cases after
PO 00000
Frm 00041
Fmt 4701
Sfmt 4700
47293
redacting the same information that will
either not be collected or not be
published under this rule. OSHA
explained that it uses FOIA Exemptions
6 and 7(C) to withhold from disclosure
information in personnel and medical
files and similar files that ‘‘would
constitute a clearly unwarranted
invasion of personal privacy’’ or records
or information compiled for law
enforcement purposes to the extent that
the production of such law enforcement
records or information ‘‘could
reasonably be expected to constitute an
unwarranted invasion of personal
privacy’’ (5 U.S.C. 552(b)(6),
552(b)(7)(C)). OSHA intended this
discussion to reassure the regulated
community that it has a great deal of
experience in protecting privacy
interests when it releases the forms that
are at issue in this rule.
Separately, OSHA also pointed out
that in multiple cases where it had
denied FOIA requests for Form 300A
data, which does not include personal
information about injured employees,
courts had ruled that OSHA had to
release the data (see 87 FR 18531).
OSHA believes those rulings support its
decision here to release non-personal
information from the Forms 300 and
301. (One commenter said that the name
and telephone number of the executive
certifying the accuracy of Form 300A
should be considered private
information (Docket ID 0086); OSHA
agrees; in fact, the agency has never
even collected this information as part
of its routine data collection of
information from the Form 300A
through either the ODI or the ITA.
Likewise, it will not do so pursuant to
this rule.)
A number of commenters reacted to
OSHA’s discussion of FOIA (e.g., Docket
IDs 0042, 0050, 0070, 0071, 0072, 0076,
0088, 0090, 0094). For example, the
National Propane Gas Association
(NPGA) said that it ‘‘strongly disagrees’’
with OSHA’s argument ‘‘that since casespecific, establishment-specific
information is subject to FOIA requests,
the information is available to the
public inevitably and, thereby, the
agency’s proposal to create a public
website merely eliminates the
procedural step of a stakeholder
submitting a FOIA request.’’ According
to NPGA, a ‘‘FOIA request is defined to
a specific incident or event, date, and
establishment and initiated on the basis
of a defined interest by the submitter’’
(Docket ID 0050). OSHA does not agree.
FOIA requests can be filed by any
member of the public, with no
requirement to show why the requester
is seeking the information, and
researchers and members of the press
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
47294
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
file such requests frequently. These
requests are often for large quantities of
data, not for material related to ‘‘a
specific incident or event, date, and
establishment.’’
The Phylmar Regulatory Roundtable
(PRR) also expressed concern with
OSHA’s statements in the preamble
about how the agency ‘‘generally
releases copies of the 300 logs [(i.e.,
Form 300)] maintained in inspection
files in response to FOIA requests after
redacting employee names (column B)’’
(see 87 FR 18532) commenting, ‘‘[i]t is
not clear what is meant by ‘generally
releases’ but it can be assumed it is not
often. Currently, OSHA only has access
and, more importantly, the ability to
release Form 300 Logs that are collected
as part of an inspection’’ (Docket ID
0094). PRR added, ’’ It is commonly
known, and stated in the NPRM, that
OSHA does not have the resources to
conduct a fraction of the inspections
that collection through the proposed
rule would produce. In actuality, the
previous risk is much lower than what
OSHA is now proposing. Also, the
privacy is no longer central to FOIA
requests because once the data is
posted, anyone will have access,
without having to make any official
requests. Finally, the little protection
the FOIA process does provide to
protect worker confidentiality will be
gone as well.’’ (Docket ID 0094).
This comment misunderstands
OSHA’s purpose in discussing its FOIA
practice. The section of the NPRM
preamble in which the OSHA
statements quoted by PRR appear is an
explanation of which data from the
OSHA Forms 300 and 301 the agency
proposed to make available on OSHA’s
website. In the paragraph in which the
sentence commented on by PRR
appears, OSHA explained that it plans
to collect all the fields in
establishments’ Form 300 except
employee name (column B) and that
‘‘[a]ll collected data fields on the 300
Log will generally be made available on
OSHA’s website’’ (87 FR 18532). At the
end of this paragraph, OSHA explained
that it currently ‘‘generally releases
copies of the 300 Logs maintained in
inspection files in response to FOIA
requests after redacting employee
names’’ (87 FR 18532). This information
was included to explain that releasing
information from establishments’ Forms
300s is not new; OSHA has been
releasing information from both the 300
and 301 forms for some time.
When OSHA said it ‘‘generally
releases’’ data, it meant that the default
is to release it, unless there is a reason
not to do so (i.e., one or more FOIA
Exemptions). For example, if a Form
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
includes information that could
reasonably be expected to identify
individuals directly, the agency would
withhold that information from release
under FOIA Exemption 6 or 7(C).
Likewise, and as discussed in more
detail below, OSHA is utilizing multiple
layers of protection to ensure that
information which could reasonably be
expected to identify individuals directly
is protected from disclosure.
OSHA also disagrees with PRR’s
assertion that ‘‘the little protection the
FOIA process does provide to protect
worker confidentiality will be gone’’
when this rulemaking goes into effect
and with its claim that the risk of
worker identification under OSHA’s
FOIA practice is far lower than that in
this rulemaking (Docket ID 0094). As
explained extensively throughout this
section, OSHA has included multiple
layers of protection to protect
information that could reasonably be
expected to identify individuals
directly. Significantly, this includes not
collecting some information that is
included on the Forms 300 and 301 that
OSHA collects during inspections (e.g.,
employee names). Thus, the information
obtained in this rulemaking is already
starting at a less-identifiable point than
the information obtained during
inspections. And OSHA expects that the
remainder of the process, i.e., system
design, only releasing certain fields, and
using scrubbing technology, will
provide comparable protection to that
provided under the FOIA process.
OSHA also received comments from a
number of interested parties expressing
concern about the proposed requirement
for establishments to submit and
OSHA’s plan to publish particular
information that appears on
establishments’ Forms 300 or 301. These
commenters alleged that their
businesses would suffer in various ways
if such information was collected and
released. For example, some of these
commenters argued that the proposed
rule would require employers to submit
to OSHA data that the commenters
consider to be proprietary and
confidential to their businesses, e.g., the
number of employees and the hours
worked at a particular location are
regarded as proprietary information by
many companies (Docket IDs 0042,
0071, 0072, 0088, 0090). A comment
from the Louisiana Chemical
Association is representative of this
argument: ‘‘The number of employees
and the hours worked at a particular
location [are] regarded as proprietary
information by many companies. This
information if revealed provides details
regarding the business processes,
production volumes, security, and
PO 00000
Frm 00042
Fmt 4701
Sfmt 4700
operational status of a facility’’ (Docket
ID 0042). Similar comments were made
by the National Retail Federation
(Docket ID 0090), the U.S. Chamber of
Commerce (Docket ID 0088), and the
Associated Builders and Contractors
(Docket ID 0071).
Similarly, other commenters opposed
the publication of an establishment’s
name and address, as well as casespecific injury and illness data from the
Forms 300 and 301, on the ground that
doing so would harm a company’s
overall reputation (e.g., Docket ID 0036,
0043, 0050, 0068, 0071).7 For example,
according to NAM, ‘‘This newly
available data immediately puts
employers, manufacturers in particular,
in a defensive posture whereby
compliance with this rule adds
unintended risks to company
reputation. Prematurely publishing
sensitive establishment data would
damage those companies who are
improving their safety programs, leaving
smaller businesses the most vulnerable
in such a scenario. Manufacturers need
to know that their good faith
compliance will not hurt their
business.’’ (Docket ID 0068).
When considering whether a
particular piece of information OSHA
proposed to collect and make publicly
available in this rulemaking will be
problematic in any way, including as to
a company’s competitiveness or its
reputation, it is important to consider
which information is currently publicly
available and whether posting such data
has actually resulted in the harm raised
by commenters on this rulemaking.
OSHA began publishing individual
establishment 300A annual summary
data, then submitted through the OSHA
Data Initiative (ODI), in 2009, and data
for calendar years 1996 through 2011 is
posted in a searchable format at: https://
www.osha.gov/ords/odi/establishment_
search.html. The ODI data files include
information on the number of
employees and the hours worked hours,
as well as establishments’ names and
street addresses (see
‘‘DataDictionary1996–2001.txt’’,
‘‘DataDictionary2002–2011.txt’’
available at the ODI website cited in the
previous sentence). Despite the fact that
these data have been publicly available
for more than a decade, OSHA is not
aware of, and no commenter has
provided, any specific examples of
reputational harm, of firms losing
business opportunities or potential
7 OSHA notes some of the issues noted in this
paragraph are addressed below in Section III.E of
the Summary and Explanation, on section
1904.41(b)(10). However, OSHA sees some utility in
reviewing this issue in this part of the preamble as
well.
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
employees, or any other harm resulting
from the public availability of these
data.
This point was emphasized in
comments submitted by the Strategic
Organizing Center for this rulemaking
(Docket ID 0079), including one
previously submitted during the
proceeding leading the 2016 rule. That
comment pointed out that none of the
employers expressing concern about
‘‘reputational damage’’ during a 2013
public meeting on what became the
2016 rule ‘‘could point to a single
instance of such damage arising from
the release of workplace injury/illness
records.’’ The comment added that ‘‘the
representatives of several large trade
associations . . . made the same claim,
and offered the same paucity of
evidence.’’ SOC further opined that if
any of their members had actually
suffered any reputational damages, then
these ‘‘highly sophisticated participants
. . . would either already know about it
or been able to find at least a pattern of
compelling examples worthy of the
Secretary’s consideration in this
rulemaking,’’ but they did not offer any
such examples at the public meeting,
‘‘even in response to repeated questions
by OSHA.’’ Almost a decade has passed
since that meeting, even more
information is available, and OSHA has
still seen no evidence of reputational or
other harm to employers that submitted
required data.
Moreover, OSHA has also published
data from establishments’ Forms 300A
for calendar years 2016 through 2021 in
downloadable data files at https://
www.osha.gov/Establishment-SpecificInjury-and-Illness-Data. These
published data include, among other
things, company name and address,
annual average number of employees,
and total hours worked (see Data
Dictionary available at the OSHA
website cited in the previous sentence).
Again, OSHA is not aware of, and no
commenter has provided, any specific
examples of reputational harm, of firms
losing business opportunities or
potential employees, or any other harm
resulting from the public availability of
these data. Consequently, OSHA is not
persuaded that these unsubstantiated
concerns regarding potential harms that
may result from OSHA’s posting of
information from their recordkeeping
forms in any way outweigh the worker
safety and health benefits that will be
realized from OSHA’s collection and
posting of certain data from
establishments’ recordkeeping forms.
OSHA also received comments
arguing that the proposed rule was
arbitrary and capricious or that OSHA’s
statements within the proposed rule’s
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
preamble were otherwise suspect,
problematic, or confusing because
OSHA has taken a different position
during past FOIA litigation. For
example, the U.S. Chamber of
Commerce commented that in the New
York Times Co. v. U.S. Dep’t of Labor,
340 F. Supp. 2d 394 (S.D.N.Y. 2004),
and in OSHA Data/CIH, Inc. v. U.S.
Dep’t of Labor, 220 F.3d 153 (3d Cir.
2000), OSHA took the position that the
total number of employees and hours
worked at a particular establishment
was ‘‘confidential and proprietary
business information,’’ in contrast to its
position in the NPRM (Docket ID 0088,
Attachment 2).
The Chamber accurately characterizes
OSHA’s arguments in the New York
Times case but fails to mention one key
fact: the court found that the
information was not confidential.
Specifically, in its decision, the court
concluded that basic injury and illness
recordkeeping data regarding the
average number of employees and total
number of hours worked does not
involve confidential commercial
information (see 350 F. Supp. 2d 394 at
403). It held that competitive harm
would not result from OSHA’s release of
lost workday injury and illness rates of
individual establishments, from which
the number of employee hours worked
could theoretically be derived (id. at
402–403). Additionally, the court
explained that most employers do not
view injury and illness data as
confidential (id. at 403).
In the years after the court’s decision
rejected the Secretary’s argument that
the injury and illness rates requested in
the FOIA suit could constitute
commercial information under
Exemption 4 of FOIA, 5 U.S.C.
552(b)(4), the Secretary reconsidered
their position. Beginning in 2004, in
response to FOIA requests, OSHA’s
policy has been to release information
from Form 300A on the annual average
number of employees and total hours
worked by all employees during the past
year at an establishment. Similarly,
OSHA began releasing establishment
Forms 300 and 301 in response to FOIA
requests (after appropriately redacting
certain personal identifiers under
Exemption 7(C)). And, as noted above,
the agency began posting information
from establishments’ Forms 300A online
in 2009 as part of ODI. Thus, OSHA
included a statement in the 2013
proposed rule and 2016 final rule
explaining that the Secretary no longer
believes that the injury and illness
information entered on the OSHA
recordkeeping forms constitutes
confidential commercial information.
PO 00000
Frm 00043
Fmt 4701
Sfmt 4700
47295
OSHA’s general practice of releasing
recordkeeping forms to FOIA requesters
(with appropriate redactions largely
related to information that could
identify employees, e.g., employee
names) continued in the years prior to
the Supreme Court’s decision in Food
Marketing Institute v. Argus Leader
Media, 139 S. Ct. 2356 (2019) (‘‘Argus
Leader’’). In Argus Leader, the Court
held that ‘‘at least where commercial or
financial information is both
customarily and actually treated as
private by its owner and provided to the
government under an assurance of
privacy, the information is ‘confidential’
within the meaning of Exemption 4’’ (id.
at 2366). After the issuance of the Argus
Leader decision, OSHA changed its
practice and began processing requests
for OSHA Forms 300, 300A, and 301
under Exemption 4, a decision which
the agency believed was supported by
Argus Leader. Then, after several courts
disagreed with OSHA’s interpretation,
the agency reverted to its previous
practice and began releasing the
recordkeeping forms as before (see 87
FR 18531 (discussing three adverse
rulings in which courts rejected OSHA’s
position that electronically submitted
300A injury and illness data are covered
under the confidentiality exemption in
FOIA Exemption 4)). In other words,
although OSHA has previously argued
that some of the Form 300, 300A, and
301 information should not be released
under FOIA, the agency changed its
posture to comport with adverse court
rulings. Consequently, the agency is not
persuaded by comments reiterating
those court-rejected arguments.
In making this decision, OSHA notes
that many employers already routinely
disclose information about the number
of employees at an establishment. Since
2001, OSHA’s recordkeeping regulation
has required employers to record
information about the average annual
number of employees and total number
of hours worked by all employees on the
OSHA Form 300A. Section 1904.35 also
requires employers to provide to
employees, former employees, and
employee representatives non-redacted
copies of the OSHA Form 300A. In
addition, § 1904.32(a)(4) requires
employers to publicly disclose
information about the number of
employees and total number of hours
worked through the annual posting of
the 300A in the workplace for three
months from February 1 to April 30.
OSHA notes that it also received
comments from interested parties
arguing that OSHA should rescind the
requirement to submit the 300A
Summary Form to OSHA because that
form contains confidential business
E:\FR\FM\21JYR2.SGM
21JYR2
47296
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
ddrumheller on DSK120RN23PROD with RULES2
information (CBI) (e.g., Docket ID 0059).
Such comments are reiterating legal
arguments which courts rejected in the
cases discussed above. Consequently,
OSHA disagrees with the assertion that
the 300A forms contain CBI and
declines to make the requested change.
6. Safeguarding Individual Privacy
(Direct Identification)
As explained above, OSHA’s decision
to collect certain data from
establishments’ Forms 300 and 301
stems from its determination that OSHA
will be able to use the data to improve
worker safety and health. Similarly, the
agency’s decision to publish some of the
Forms 300 and 301 data it receives
pursuant to this rulemaking flows from
its expectation that it will receive FOIA
requests requesting the data and its
determination that such publication will
result in many occupational safety and
health benefits. Importantly, in the
proposal, OSHA also preliminarily
determined that these benefits would
not be at the expense of employee
privacy. In other words, OSHA
preliminarily determined that it would
be able to adequately protect
information that could reasonably be
expected to identify individuals
directly—both in the collecting and
possession of the data and in its
decisions surrounding which
information will be made publicly
available.
This question, i.e., whether OSHA
would be able to adequately protect
information that could reasonably be
expected to identify individuals
directly, was raised in the rulemaking
that culminated in the issuance of the
2016 final rule. It was also a major factor
in OSHA’s decision to rescind the
requirement for certain employers to
electronically submit information from
Forms 300 and 301. Specifically, in the
preamble to the 2019 final rule, OSHA
stated that it was rescinding that
requirement ‘‘to protect sensitive worker
information from potential disclosure
under the Freedom of Information Act
(FOIA)’’ and that ‘‘OSHA has always
applied a balancing test to weigh the
value of worker privacy against the
usefulness of releasing the data’’ (84 FR
383–384). The preamble to the 2019
final rule also stated the agency’s belief
at the time that OSHA could withhold
the data from Forms 300 and 301 from
publication under FOIA Exemptions 6
and 7(C) (84 FR 386), but OSHA
concluded at that time that the risk of
disclosure of case-specific,
establishment-specific, information
could not be justified ‘‘given [the
agency’s] resource allocation concerns
and the uncertain incremental benefits
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
to OSHA of collecting the data’’ (84 FR
387). Moreover, in the preamble to the
2019 final rule, OSHA characterized
information such as descriptions of
workers’ injuries and the body parts
affected (Field F on Form 300, Field 16
on Form 301), as ‘‘quite sensitive,’’ and
stated that public disclosure of this
information under FOIA or through the
OSHA Injury Tracking Application
(ITA) would pose a risk to worker
privacy. It added that ‘‘although OSHA
believes data from Forms 300 and 301
would be exempt from disclosure under
FOIA exemptions, OSHA is concerned
that it still could be required by a court
to release the data’’ (84 FR 383).
As noted in the preamble to the
proposed rule for this rulemaking,
however, OSHA has determined those
bases for the removal of the 300 and 301
data submission requirement are no
longer compelling. As to the risk to
employee privacy, OSHA preliminarily
determined that the proposed data
collection would adequately protect
information that could reasonably be
expected to identify individuals
directly, such as name and address,
with multiple layers of protection. Of
particular importance, OSHA explained
that improvements in technology have
decreased the resources needed by the
agency to collect, analyze, and publish
data from Forms 300 and 301 (87 FR
18538). In addition, OSHA noted the
2019 final rule took an overly expansive
view of the term ‘‘personally
identifiable information’’ and
preliminarily determined that the 2019
final rule’s position on such information
was at odds with the agency’s usual
practice of regularly releasing such data
(87 FR 18539).8
A number of commenters expressed
concern about OSHA’s reasoning for the
collection and publication of Forms 300
and 301 data in the preamble to the
proposed rule (e.g., Docket ID 0038,
0058, 0059, 0072, 0088, 0091). For
example, NPGA argued that OSHA
should evaluate the data it already
collects from industries listed in
appendix A to determine whether
additional information collection will
further workplace safety (Docket ID
0050). As discussed extensively above
in Section III.B.4 of this Summary and
Explanation, OSHA has evaluated and
used the 300A data it collects and
8 In this preamble, OSHA generally uses the
phrases ‘‘information that could reasonably be
expected to identify individuals directly’’ and
‘‘information that could reasonably be expected to
identify individuals indirectly,’’ rather than the
broader term ‘‘personally identifiable information’’
(PII) to aid interested parties in understanding
precisely what type of information OSHA is
referring to in the discussion. The information
referred to in both phrases can be considered PII.
PO 00000
Frm 00044
Fmt 4701
Sfmt 4700
anticipates that many workplace safety
and health benefits will flow from the
collection of the case-specific data that
will be submitted by establishments
pursuant to final 1904.41(a)(2).
Other commenters focused on
whether OSHA had adequately
explained its change of opinion on
whether the risk of collecting and
publishing Form 300 and 301 data
outweighs the benefits to worker safety
and health. For example, the American
Feed Industry Association (AFIA), the
Coalition for Workplace Safety, and the
Flexible Packaging Association all
expressed disagreement with OSHA’s
determination that the significant
benefits of collecting establishmentspecific, case-specific data from the 300
and 301 forms outweigh the slight risk
to employee privacy (Docket IDs 0038,
0058, 0091). On the other hand, the
National Council for Occupational
Safety and Health noted that OSHA
needs ‘‘workplace injury and illness
information . . . to work effectively,’’
and that it is ‘‘unlike almost any other
government agency in charge of
protecting public safety’’ in not
receiving it already (Docket ID 0048).
As discussed above, OSHA believes it
has good reasons to collect and publish
information from the covered
establishments’ Forms 300 and 301 (see
Section III.B.4 of this Summary and
Explanation). And, as to the risk to
employee privacy, OSHA has
determined that it can implement
multiple layers of protection described
above to protect such information that
could reasonably be expected to identify
individuals directly, e.g., names and
addresses. These protective measures
include limiting the amount of
information submitted by employers,
reminding employers not to submit
information that could reasonably be
expected to identify individuals
directly, withholding information from
certain fields from publication, and
using automated information technology
to detect and remove any remaining
information that could reasonably be
expected to identify individuals
directly. These measures will ensure
that individual privacy is protected
while key information on workplace
hazards is disseminated to employees,
employee representatives, and other
interested parties. The following
discussion explains how each layer of
protection will help to ensure that
individual privacy is protected.
In the proposed rule, OSHA stated
that its first measure to prevent the
release of information that could
reasonably be expected to identify
individuals directly is to not collect
most of that information in the first
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
place. Specifically, as discussed above
and detailed in Section III.D of this
Summary and Explanation, on
§ 1904.41(b)(9), the proposal explained
to establishments that employers did
not need to submit the following
information: (1) from the Form 300 Log:
the employee name column (column B)
and (2) from the Form 301 Incident
Report: the employee name (Field 1),
employee address (Field 2), name of
physician or other health care
professional (Field 6), and facility name
and address if treatment was given away
from the worksite (Field 7). OSHA
explained that, since this information
would not be collected, there would be
no risk of publication disclosure of the
data in the fields (87 FR 18538).
Some interested parties submitted
comments agreeing with OSHA’s logic
on this point (e.g., Docket IDs 0030,
0063, 0064). For example, Worksafe
supported the proposed omission of
employee name and address, physician
names, and treatment facilities from
collection and publication to protect
individual privacy (Docket ID 0063).
And AIHA commented that if PII is not
collected by OSHA, there would be no
need to redact submitted information
(Docket ID 0030). Based on this
feedback, and as discussed further in
Section III.D of this Summary and
Explanation, the final rule, like the
proposed rule, does not allow
employers to submit the above
information.
Again, as discussed in Section III.D of
this Summary and Explanation, OSHA
received comments from interested
parties requesting that OSHA add other
fields from Forms 300 and 301 to the list
of fields which establishments are not
required to submit under the final rule.
These comments are addressed in detail
in Section III.D, but OSHA also notes
here that these interested parties’ true
concerns appear to relate to whether
OSHA can keep the collected data
private (e.g., will OSHA have to release
it in response to a FOIA request or
otherwise release it accidentally, such
as because an employee name or other
direct employee identifier is contained
in a narrative field) or whether the fields
OSHA intends to release will allow
third parties to indirectly identify
employees. OSHA’s plan to mitigate
each of these concerns is discussed in
detail below. Thus, again as stated in
the summary and explanation for
§ 1904.41(b)(9), the agency declines to
add further fields to the list of fields
from establishments’ Forms 300 and 301
which will not be collected under this
final rule.
As discussed in the proposal, OSHA’s
second measure to prevent the release of
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
information that could reasonably be
expected to identify individuals directly
relates to system design (87 FR 18538).
Specifically, the agency explained that
it planned to design its data collection
system to provide extra protections for
the personal information that
establishments would be required to
submit under the proposal. For
example, OSHA stated that although the
proposal would require employers to
submit the employee’s date of birth from
Form 301 (Field 3), it planned to design
the data collection system to
immediately calculate the employee’s
age based on the date of birth entered
and then store only the employee’s age,
not the employee’s date of birth. OSHA
also indicated its intent to post
reminders to establishments to omit
from the text fields they submit any
information that could reasonably be
expected to identify individuals
directly, including names, addresses,
Social Security numbers, and any other
identifying information (see 87 FR
18538).
In addition to these proposed system
design solutions, OSHA included a
question in the proposal asking: ‘‘What
additional guidance could OSHA add to
the instructions for electronic
submission to remind employers not to
include information that reasonably
identifies individuals directly in the
information they submit from the textbased fields on the OSHA Form 300 or
Form 301?’’ (87 FR 18546). OSHA
received a number of responses to this
question. For example, AIHA
commented, ‘‘The electronic forms that
OSHA provides should be designed to
automatically exclude personal
identifiers with an option to include the
fields if required. The import side of the
electronic form data could also block
the importation of these fields’’ (Docket
ID 0030).
The Plastics Industry Association
(PIA) commented that, although it does
not believe the reminder would be ‘‘an
acceptable remedy for inadequate
software,’’ ‘‘[i]f OSHA were to proceed
in this way. . ., OSHA should include
the warning about not including
personal identifiers in an online screen
and require the submitter to click a
confirmation that it has not included
any personal identifiers before allowing
the submitter to proceed to the data
entry step.’’ PIA also stated that after the
data entry is completed, the system
should provide the employer with an
opportunity to review the complete data
submission, view how it would be
presented to the public, and correct any
inaccurate data or inadvertently
included personal identifiers. After
completing that step, PIA recommended
PO 00000
Frm 00045
Fmt 4701
Sfmt 4700
47297
that the submitter should have to click
through a second screen that repeats the
warning about not including personal
identifiers and confirm that none were
submitted before allowing the submitter
to click on the final submit button.
Finally, PIA said that ‘‘[b]efore requiring
compliance with the contemplated data
submission requirements for the OSHA
Form 300 or Form 301 data, OSHA
needs to have a qualified, independent
body test and validate that the software,
as integrated into the OSHA ITA, will
reliably remove any personal
identifiers’’ (Docket ID 0086).
OSHA thanks the commenters who
responded to the specific question on
additional instructions to employers on
not submitting information that
identifies individuals. OSHA intends to
take commenters’ specific responses
into account when designing the
expanded collection system. Based on
those comments, OSHA will include
reminders in the instructions for the
data collection system for employers not
to submit information that could
reasonably be expected to identify
individuals directly. OSHA agrees that
is an effective way to reduce the amount
of identifiable information collected by
the system. In turn, that will decrease
the likelihood that such information
will be published. OSHA has routinely
used these types of instructions, such as
when it requests comments from
interested parties in rulemakings such
as this one (see the section on
‘‘Instructions’’ above) and has found
them to be an effective way to prevent
the unintentional submission of
information that could reasonably be
expected to identify individuals
directly.
Also, OSHA notes that the current
ITA manual data entry option already
includes a screen that provides
establishments with an opportunity to
review the complete data submission of
Form 300A information and to make
edits or corrections as appropriate.
OSHA plans to gather additional
information from similar data collection
systems and incorporate best practices
in the final design for the collection
system for data from the Forms 300 and
301. Moreover, the Forms 300 and 301
themselves already include a box with
the warning, ‘‘Attention: This form
contains information relating to
employee health and must be used in a
manner that protects the confidentiality
of employees to the extent possible
while the information is being used for
occupational safety and health
purposes.’’ In addition, the Form 301
includes the warning, ‘‘Re [F]ields 14 to
17: Please do not include any personally
identifiable information (PII) pertaining
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
47298
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
to worker(s) involved in the incident
(e.g., no names, phone numbers, or
Social Security numbers).’’ Fields 14–17
do not ask for information likely to
implicate privacy concerns, rather, they
request information related to the injury
or illness and how it occurred. OSHA
believes these warnings are adequate
and does not believe it is practical to
develop a system that would remove
remaining information between an
establishment’s draft and final
electronic submissions. Such systems
take time to run (see, e.g., Docket ID
0095), which would increase the time
between employer submission (i.e.,
when the employer clicks on the
‘submit’ or ‘upload’ button) and
employer receipt of confirmation of
successful submission, potentially
creating concerns about whether the
submission system is working. OSHA
therefore believes that it is more
appropriate to identify and remove any
information that could reasonably be
expected to identify individuals directly
after submission and before publication,
rather than during submission.
Moreover, OSHA thinks its plans to
protect such data will adequately
protect worker privacy without adding
this additional, impractical, potentially
expensive (adding additional
functionality to system) step. Finally, as
to system design, OSHA’s system will
not allow establishments to enter the
fields that are excluded from collection
under § 1904.41(b)(9).
As discussed in the proposal, OSHA’s
third measure to prevent the release of
information that could reasonably be
expected to identify individuals directly
is to withhold certain information that
is submitted to it from public
disclosure. As noted above, OSHA will
not collect employees’ names from
either form, and will not collect
employees’ addresses or the names or
addresses of healthcare providers from
Form 301. However, the proposed rule
would have required (and the final rule
actually requires) submission of some
fields that contain personal information,
including date of birth (which will be
converted to age) (Field 3), date hired
(Field 4), gender (Field 5), whether the
employee was treated in the emergency
room (Field 8), and whether the
employee was hospitalized overnight as
an in-patient (Field 9) (see 87 FR
18539). OSHA proposed to collect that
information, but not to make it public,
and specifically requested comment on
those proposals (see 87 at FR 18540).
OSHA received a number of
comments, virtually all from employers
and their representatives, expressing
concern over the potential risk to
employee privacy presented by the
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
proposed collection and potential
publication of information from Forms
300 and 301 that could reasonably be
expected to identify individuals directly
(e.g., Docket IDs 0055, 0056, 0057, 0062,
0070, 0075, 0087, 0090, 0094). For
example, the Precision Machined Parts
Association (PMPA) commented, the
Form 300 contains sensitive information
that may be released under FOIA or
‘‘through the inadvertent publication of
information due to the agency’s reliance
on automated de-identification systems
to remove identifying information’’ or
through the actions of ‘‘future
administrations’’ (Docket ID 0055). The
North American Die Casting Association
(Docket ID 0056) and National Tooling
and Machining Association and
Precision Metalforming Association
(Docket ID 0057) expressed similar
concerns. Rep. Virginia Foxx (R-North
Carolina) and Rep. Fred Keller (RPennsylvania) echoed that ‘‘there are no
guarantees that this data may not be
disclosed accidentally’’ (Docket ID
0062).
In contrast, commenters representing
the workers whose injuries and illnesses
are recorded on these forms did not
share employers’ concerns about the
potential publication of sensitive worker
information. For example, the AFL–CIO
stated that ‘‘The preamble to the 2016
final rule included a comprehensive
review of privacy issues raised by
interested parties in requiring the
collection of detailed injury and illness
data and the final language was crafted
to provide safeguards to protect the
release of personally identifiable
information (PII).’’ It explained the
NPRM ‘‘has also considered PII and
includes the same safeguards as the
2016 final rule and discusses recent
technological developments that
increase the agency’s ability to manage
information’’ (Docket ID 0061 (citing 87
FR 18538–46)). In addition, AFL–CIO
observed that the type of information
that OSHA proposed to collect in this
rulemaking ‘‘has already been shown by
other agencies it can be collected and
shared without violating confidentiality,
such as by Mine Safety and Health
Administration (MSHA)[, and a]ll data
provided under the Freedom of
Information Act and Form 300 and
Form 301 provided to workers and their
representatives upon request under
§ 1904.35 provide detailed injury and
illness information without releasing
PII.’’ In summary, AFL–CIO argued that
‘‘OSHA should maintain the same
privacy safeguards in the rule it issued
in 2016, also proposed in this preamble
and used by other agencies to protect
sensitive information’’ (Docket ID 0061).
PO 00000
Frm 00046
Fmt 4701
Sfmt 4700
Similarly, the National Nurses Union
affirmed that the NPRM ‘‘includes
appropriate procedures to allow
electronic data reporting and
publication while protecting worker
privacy.’’ To support this statement, it
specifically referenced OSHA’s ‘‘plans
to instruct employers to omit the fields
on Form 301 that include personal
information about the worker’’ and the
agency’s plan to use data analysis tools
to ensure that published data does not
include any personal data that
employers may accidentally submit.
NNU concluded that ‘‘[t]he multiple
measures to remove identifying
information in the final rule will ensure
that workers’ privacy is protected while
key information on workplace hazards
is shared’’ (Docket ID 0064).
OSHA agrees with the latter
commenters who stated that there are
multiple measures in place to protect
the privacy of individuals under this
final rule. As discussed above, OSHA
will not collect much of the information
the commenters opposing this provision
expressed concern about. In addition,
the collection system will provide
further safeguards and reminders. For
example, OSHA will redact any
identifying material from the portions of
the forms it intends to publish (e.g.,
Fields 10 through 18 of Form 301).
Further, and as discussed in more
detail below in Section III.B.7 of this
Summary and Explanation, OSHA will
withhold from publication all of the
collected information on the left side of
the Form 301 (i.e., employee age,
calculated from date of birth (Field 3),
employee date hired (Field 4), and
employee gender (Field 5), as well as
whether the employee was treated in
emergency room (Field 8) and whether
the employee was hospitalized
overnight as an in-patient (Field 9)) that
could indirectly identify injured or ill
employees when combined with other
potentially available information. As
noted in the proposal, this decision is
consistent with OSHA’s handling of
FOIA requests, in response to which the
agency does not release data from Fields
1 through 9.
It is important to note that these forms
have never been private. The
information that OSHA will publish
from the Forms 300 and 301 under this
final rule is consistent with the
information available in the agency’s
longstanding records access provisions.
The recordkeeping regulation at 29 CFR
1904.35 allows current and former
employees and their representatives
access to the occupational injury and
illness information kept by their
employers, with some limitations. When
an employee, former employee, personal
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
representative, or authorized employee
representative asks an employer for
copies of an employer’s current or
stored OSHA 300 Log(s), the employer
must give the requester a copy of the
relevant OSHA 300 Log(s) by the end of
the next business day (see 29 CFR
1904.35(b)(2)(ii)). Cases labeled as
‘‘privacy concern cases,’’ described
below, are excluded from this
requirement. Finally, an authorized
representative is entitled, within 7 days
of requesting them, to copies of the
right-hand portion of all 301 forms for
the establishment(s) where the agent
represents one or more employees under
a collective bargaining agreement. As
discussed above, the right-hand portion
of the 301 form contains the heading,
‘‘Tell us about the case,’’ and includes
information about how the injury or
illness occurred, including the
employee’s actions just prior to the
incident, the materials and tools
involved, and how the incident
occurred, but should not include the
employee’s name. No information other
than that included on the right-hand
portion of the Form 301 may be
disclosed to the authorized employee
representative.
Put more simply, OSHA’s decision
not to release the collected information
on the left-hand side of the Form 301
(i.e., age (calculated from date of birth),
date hired, gender, whether the
employee was treated in the emergency
room, and whether the employee was
hospitalized overnight as an in-patient)
is consistent with records access
provisions in OSHA’s recordkeeping
regulation, § 1904.35(b)(2)(v)(A) and (B),
which prohibit the release of
information in fields 1 through 9 to
individuals other than the employee or
former employee who suffered the
injury or illness and their personal
representatives.
To protect employee privacy,
§ 1904.29(b)(7) requires the employer to
enter the words ‘‘privacy concern case’’
on the OSHA 300 log, in lieu of the
employee’s name, for certain sensitive
injuries and illnesses: an injury or
illness to an intimate body part or the
reproductive system; an injury or illness
resulting from a sexual assault; a mental
illness; an illness involving HIV
infection, hepatitis, or tuberculosis;
needlestick injuries and cuts from sharp
objects that are contaminated with
another person’s blood or other
potentially infectious material (see
§ 1904.8 for definitions); and other
illnesses, if an employee independently
and voluntarily requests that their name
not be entered on the log. In addition,
under § 1904.29(b)(9), if employers have
a reasonable basis to believe that
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
information describing a privacy
concern case may be personally
identifiable even though the employee’s
name has been omitted, they may use
discretion in describing the injury or
illness as long as they include enough
information to identify the cause of the
incident and the general severity of the
injury or illness. Thus, contrary to the
arguments of the Phylmar Regulatory
Roundtable (PRR) (Docket ID 0094),
OSHA’s recordkeeping rule
distinguishes between PII and ‘‘sensitive
PII,’’ which is deserving of even higher
protection. OSHA’s definition of privacy
concern cases is very similar to the DHS
definition of ‘‘sensitive PII, which this
comment urged OSHA to adopt (see
https://www.dhs.gov/publication/
handbook-safeguarding-sensitivepersonally-identifiable-information, p.
15). Although DHS and OSHA collect
and maintain information for different
purposes, the provisions in 29 CFR
1904.29 addressing privacy concern
cases protect details about injuries and
illnesses that workers would consider
sensitive to the same extent that the
DHS rule does. Therefore, it is unlikely
that information describing sensitive
body parts will even be recorded by
employers, much less subsequently
submitted to OSHA under the data
collection requirements of this final
rule.
Section 1904.29(b)(10) also protects
employee privacy if an employer
decides voluntarily to disclose the
Forms 300 and 301 to persons other
than those who have a mandatory right
of access, by requiring employers to
remove or hide employees’ names or
other personally identifiable
information before disclosing the forms
to anyone other than government
representatives, employees, former
employees, or authorized employee
representatives, with only a few
exceptions. The exceptions include
disclosure to authorized consultants
hired by employers to evaluate their
safety and health programs; where
disclosure is necessary to process a
claim for workers’ compensation or
other insurance benefits; and disclosure
to a public health authority or law
enforcement entity for uses and
disclosures for which consent, or
authorization, or opportunity to agree or
object is not required under the HIPAA
privacy rule at 45 CFR 164.512. These
exceptions are not relevant here or are
discussed in Section III.B.10 of this
Summary and Explanation, below.
OSHA acknowledged the tension
between the safety and health benefits
of disclosing injury and illness records
on the one hand, and the desire for
privacy by the subjects of those records
PO 00000
Frm 00047
Fmt 4701
Sfmt 4700
47299
on the other, more than two decades
ago. In OSHA’s 2001 final rule
overhauling its recordkeeping system, it
explained that while agency policy is
that employees and their representatives
with access to records should treat the
information contained therein as
confidential except as necessary to
further the purposes of the Act, the
Secretary lacks statutory authority to
enforce such a policy against employees
and representatives (see 66 FR 6056–57
(citing, e.g., 29 U.S.C. 658, 659) (Act’s
enforcement mechanisms directed
solely at employers)). Thus, it has
always been possible for employees and
their representatives to make the
recordkeeping data they have accessed
public if they wish to do so (see 81 FR
29684). Nonetheless, OSHA also
concluded that the benefits to
employees and their representatives of
accessing the health and safety
information on the recordkeeping forms
carry greater weight than any particular
individual employee’s possible right to
privacy (see 66 FR 6055). Similarly, in
the current rulemaking, OSHA
continues to believe that the benefits of
publication of injury and illness data at
issue in this rule, discussed in detail
above, outweigh the slight possibility
that some employees could be identified
from that data. There are even more
exclusions from the data that will be
made public under this rule than from
the data available to employees and
their representatives, and OSHA is
unaware of any instances where an
employee took the currently available
recordkeeping information and used it
to publicize the identity of an injured or
ill worker.
Some commenters, however, thought
there should be a distinction between
the information available to workers at
an establishment and their
representatives, and information
available to the broader community. The
U.S. Poultry & Egg Association, the
Plastics Industry Association, and PRR
all acknowledged the value of providing
this information to those workers but
argued that similar value is not
provided by making the information
available to others in the industry
(Docket IDs 0053, 0086, 0094). OSHA
disagrees. As explained in Section
III.B.4 of this Summary and
Explanation, OSHA believes that
expanding access to such information
on a public website will increase
information about workplace hazards,
create awareness of potential hazards for
other members of an industry, provide
useful information for potential and
current employees, and allow all
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
47300
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
establishments to address hazards more
effectively.
OSHA notes that it also received
comments from interested parties
expressing concern that courts might
order the agency to release some of the
data it collects and does not plan to
release in this rulemaking, i.e., in a
decision in a FOIA lawsuit. Based on its
years of experience processing FOIA
requests to which establishments’ Forms
300 and 301 were responsive and
redacting and releasing those forms,
OSHA believes this outcome is highly
unlikely. As noted in the proposal and
discussed in more detail above, the
agency often collects such forms during
inspections. When releasing the forms
to FOIA requesters, it has long redacted
the information that it will collect as a
result of this rulemaking but does not
intend to publish.
Specifically, as noted above and
explained in the proposal, OSHA uses
FOIA Exemption 7(C) to withhold from
disclosure information that reasonably
identifies individuals directly included
anywhere on the three OSHA
recordkeeping forms. And OSHA has
used FOIA Exemption 6 to protect
information about individuals in
‘‘personnel and medical and similar
files’’ when the disclosure of such
information ‘‘would constitute a clearly
unwarranted invasion of personal
privacy’’ (5 U.S.C. 552(b)(6)). Together,
these Exemptions clearly cover the
information about which commenters
are concerned (i.e., directly identifying
information—concerns about indirect
identifiers are discussed below) and
OSHA is confident that it will continue
to be able to withhold such information
from public exposure under these
Exemptions.
In addition, OSHA notes that its plan
to release only certain fields will also
prevent accidental release of
information that could reasonably be
expected to identify individuals
directly. Specifically, when OSHA
publishes the information collected in
this rulemaking, that release will by
design exclude the fields that OSHA
does not intend to release. This is
similar to OSHA’s current practice as to
the collection of information submitted
with establishments’ Forms 300 A.
Specifically, as part of the process for
collecting information from the Form
300A through the ITA, OSHA collects
the name and contact information for
the person associated with the account
that is electronically submitting
information from the Form 300A for a
given establishment. OSHA also
previously collected this information for
establishment submissions of
information from the Form 300A
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
through the ODI. OSHA does not make
this information public. Indeed, there is
little risk that the agency might
accidentally do so because the data
release only includes information from
the Form 300A. It plans to follow that
same practice with the data from
establishments’ Forms 300 and 301.
OSHA’s fourth measure to prevent the
release of information that could
reasonably be expected to identify
individuals directly is through the use
of scrubbing technology. In the
preamble to the 2019 final rule, OSHA
stated that ‘‘de-identification software
cannot fully eliminate the risk of
disclosure of PII or re-identification of a
specific individual and manual review
of the data would not be feasible’’ (84
FR 388). However, in the preamble to
this proposed rule, OSHA preliminarily
determined that this reason was no
longer compelling. The agency
explained that recent advancements in
technology have reduced the risk that
information that could reasonably be
expected to identify individuals directly
will be disclosed to the public. In
addition, OSHA expected the improved
technology used to protect sensitive
employee data to reduce costs and
resource-allocation issues for OSHA by
eliminating the need to manually
identify and remove information that
could reasonably be expected to identify
individuals directly from submitted data
and by decreasing the resources
required to analyze the data. OSHA
added that, because of these
improvements in automated deidentification systems, OSHA would
now be better able to collect, analyze,
and publish data from the 300 and 301
forms, so the anticipated benefits of
collecting the data would be more
certain. The collection of case-specific
data would allow the agency to focus its
enforcement and compliance assistance
resources based on hazard-specific
information and trends, and to increase
its ability to identify emerging hazards,
at the establishment level. Accordingly,
OSHA preliminarily believed that the
significant benefits of collecting
establishment-specific, case-specific
data from the 300 and 301 forms would
outweigh the slight risk to employee
privacy (87 FR 18538).
In the preamble to the proposed rule,
OSHA specifically asked the following
questions about automated deidentification systems:
• What other agencies and
organizations use automated deidentification systems to remove
information that reasonably identifies
individuals directly from text data
before making the data available to the
general public? What levels of
PO 00000
Frm 00048
Fmt 4701
Sfmt 4700
sensitivity for the automated system for
the identification and removal of
information that reasonably identifies
individuals directly from text data do
these agencies use?
• What other open-source and/or
proprietary software is available to
remove information that reasonably
identifies individuals directly from text
data?
• What methods or systems exist to
identify and remove information that
reasonably identifies individuals
directly from text data before the data
are submitted?
• What criteria should OSHA use to
determine whether the sensitivity of
automated systems to identify and
remove information that reasonably
identifies individuals directly is
sufficient for OSHA to make the data
available to the general public?
• What processes could OSHA
establish to remove inadvertentlypublished information that reasonably
identifies individuals directly as soon as
OSHA became aware of the information
that reasonably identifies individuals
directly?
(87 FR 18546–47)
Overall, there were no comments
about the technical aspects of software
to identify and remove information that
could reasonably be expected to identify
individuals directly. However, Worksafe
commented, ‘‘Worksafe encourages
OSHA to consult with technical experts.
The Federal Government has two groups
of experts that may be able to help: the
U.S. Digital Service, a group of
technology experts that assist agencies
with pressing technology
modernization, and 18F, a ‘technology
and design consultancy’ housed within
the General Services Administration.
Technical experts should be able to
advise on both the capabilities and
limits of software to accomplish the sort
of filtering that OSHA has proposed.’’
(Docket ID 0063). In addition, AIHA’s
comment supported use of software to
remove the information before
submission: ‘‘If the personally
identifiable information (PII) is not
submitted, there would be no reason to
have an automated system capable of
removing the sensitive portions of the
information. A unique identifier could
be auto-generated by the system instead
of utilizing PII’’ (Docket ID 0030).
There were also comments that OSHA
should select, identify, test, and
demonstrate the results of deidentification software before
proceeding with a final rule. For
example, the Coalition for Workplace
Safety commented, ‘‘OSHA has not yet
conducted tests of [its privacy
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
scrubbing] technology on the Forms 300
or 301,’’ and ‘‘OSHA acknowledges that
the information it will collect and
publish can still be used to identify
individuals indirectly by combining it
with other publicly available
information.’’ The commenter also
stated that OSHA ‘‘relies heavily on
automated information technology to
remove information that can directly
identify individuals,’’ which is ‘‘not 100
percent accurate so there will still be
information made publicly available
which can be used to directly identify
individuals’’ (Docket ID 0058).
Similarly, the National Association of
Manufacturers commented, ‘‘The new
online requirement places an
unintentional burden on the agency that
it may not be prepared to implement.
The agency’s pledge to design a system
that both abides by FOIA protocols and
uses scrubbing technology to protect PII
is problematic because such a system is
unproven and untested at OSHA. The
agency should demonstrate the
effectiveness and stability of such a
system before it proceeds further with
this rulemaking. (Docket ID 0068).
The Motor and Equipment
Manufacturers Association commented,
‘‘OSHA says it will also address this risk
by using existing privacy scrubbing
technology that it claims is capable of
de-identifying information that
reasonably identifies individuals
directly (such as name, phone number,
email address, etc.). However, OSHA
made this same claim in the preamble
to the 2016 injury and illness reporting
rule, which the agency rejected in the
preamble to the 2019 rescission rule
. . . the Proposed Rule provides no
details on the systems, software, or
platforms that are available now but
were not available at the time of the
2019 rescission rule. In fact, all but one
of the data scrubbing products
identified by OSHA in the Proposed
Rule were commercially available prior
to the issuance of the rescission rule.’’
(Docket ID 0075).
The Plastics Industry Association
commented, ‘‘First, we are concerned
that OSHA is referring to technically
feasible automated software that could
identify unique personal identifiers, but
it is unclear whether it currently exists.
Second, as the foregoing discussion
from the January 19, 2001 preamble
makes clear, there are likely to be many
cases in which disclosure of a generic
identifier or data point becomes a
personal identifier in the context of
those with knowledge of the site (e.g.,
‘‘only one woman works at the plant’’),
a situation that we believe is beyond the
shield that could be provided by any
automated software. If OSHA had
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
identified automated software capable
of scrubbing unique personal identifiers,
we would have expected OSHA to have
provided an appropriate certification
from a qualified testing organization
that the software, after integration into
the OSHA ITA, will accurately perform
that function—possibly with some
acceptable, minimal error rate.
However, the following questions OSHA
posed in the preamble suggest the
necessary software is not yet available
or, if it is, OSHA has not yet identified
it and verified it would be adequate and
within the agency’s budget.’’ (Docket ID
0086).
The Employers E-Recordkeeping
Coalition (Coalition) commented, ‘‘The
supposed improved technology to
decrease the number of resources
required to analyze this data has neither
been presented to employers nor
explained in the Notice of Proposed
Rulemaking. The ‘‘scrubbing
application’’ and automated information
technology is neither tested or verified,
nor is there any reason to consider it
trustworthy. In fact, the proposed use of
automated information technology to
detect and remove information that
reasonably identifies individuals is,
OSHA admits, a ‘‘preliminary’’ finding
that has not been vetted. (The point is
further underscored by the Agency’s
request for information on what
proprietary software is out there that is
capable of removing information that
reasonably identifies individuals
directly from text data).’’ (Docket ID
0087).
The agency disagrees with the
comments that it is necessary to select,
identify, test, and demonstrate the
results of de-identification software
before proceeding with a final rule. AI
and machine learning—technologies
that OSHA plans to use to detect, redact,
and remove information that reasonably
identifies individuals directly from
structured and unstructured data
fields—have advanced rapidly in recent
years. Commercially available products
that were introduced to the marketplace
during the previous rulemaking process
are now well-established. In the
preamble to the proposed rule, OSHA
listed and described three packages
initially released between November
2017 and March 2018, as well a fourth
package that was released in March
2021 (87 FR 18540). There has now been
time for these packages to go through
multiple updates, as well as for studies
of comparative performance to be
performed and published. For example,
a study entitled ‘‘A Comparative
Analysis of Speed and Accuracy for
Three Off-the-Shelf De-Identification
Tools’’ was published in May 2020 in
PO 00000
Frm 00049
Fmt 4701
Sfmt 4700
47301
AMIA Summits on Translational
Science Proceedings; it compared three
text de-identification systems that can
be run off-the-shelf (Amazon
Comprehend Medical PHId, Clinacuity’s
CliniDeID, and the National Library of
Medicine’s Scrubber). This study found
that ‘‘No single system dominated all
the compared metrics. NLM Scrubber
was the fastest while CliniDeID
generally had the highest accuracy’’
(Docket ID 0095). While the study
concluded that ‘‘no perfect solution
exists for text de-identification,’’ the
system with the highest accuracy
displayed 97% or greater precision
(positive predicted value) and recall
(sensitivity) for name, age, and address.
The study mentions but does not
compare two additional commercially
available packages, and OSHA is aware
of at least two more packages that have
become commercially available since
the publication of the proposed rule (see
https://atlasti.com/ and https://privacyanalytics.com/health-data-privacy/
health-data-software/).9 The PRR agreed
that available software is capable of
‘‘scrap[ing] the data and remov[ing]
direct identifiers’’ and supported the
agency’s use of this technology (Docket
ID 0094).
As explained in the preamble to the
proposed rule, OSHA intends to test
multiple systems, including systems
that are commercially available, and
analyze the results carefully to select the
best option to secure and protect
information that could reasonably be
expected to identify individuals
directly. No option is expected to be
100% effective. Therefore, OSHA will
supplement the selected system with
some manual review of the data, in
order to ensure the system adequately
protects such information.10
In summary, OSHA has determined
that the agency will be able to
adequately protect information that
could reasonably be expected to identify
individuals directly using the
safeguards in this final rule and OSHA’s
planned data collection system, in
combination with warnings to
9 The inclusion of links to particular items or
references to particular companies or products is
not intended to reflect their importance, nor is it
intended to endorse any views, or products, or
services.
10 OSHA notes that the 2019 final rule
contemplated two levels of manual case-by-case
review of submitted data (84 FR 400). In this
rulemaking, the agency finds that such review is not
necessary. OSHA will guard against the publication
of information which could directly identify or lead
to the identification of workers using the measures
discussed above, including the use of automated deidentification technology, supplemented with some
manual review of the data. OSHA finds that these
measures appropriately mitigate employee-privacyrelated concerns.
E:\FR\FM\21JYR2.SGM
21JYR2
47302
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
employers and available automated
information technology. OSHA also
intends to consult with technical
experts within the Federal Government,
and agrees with the commenters who
pointed out the relevance of MSHA’s
data collection to OSHA’s proposed data
collection (see Section III.B.8 of this
Summary and Explanation). In addition,
the use of the automated informational
technology will significantly decrease
the need for the type of resourceintensive manual reviews that OSHA
was concerned about in the 2019
rulemaking. OSHA does recognize the
possibility that information could be
released that could be used to identify
an employee—this is a risk whenever
any organization collects information
that relates to individuals; however,
OSHA intends to minimize this risk to
the extent possible. The most reliable
means of protecting individuals’
information is by not requiring its
submission in the first instance;
therefore, OSHA has determined that it
will not collect fields like employee
name as part of this expanded data
collection (see Section III.D of this
Summary and Explanation). Even if
some minimal risk to privacy remains,
however, OSHA finds that the benefits
of collecting and publishing the data for
improving safety and health outweigh
that risk.
7. Indirect Identification of Individuals
ddrumheller on DSK120RN23PROD with RULES2
In the proposal, OSHA acknowledged
that the OSHA Forms 300 and 301 also
contain fields that are not direct
identifiers but that could act as indirect
identifiers if released and combined
with other information, such as job title
on the Form 300, time employee began
work on the Form 301, and date of death
on the Form 301 (87 FR 18538).
However, because this risk of reidentification already exists (given that
OSHA has previously released such
information in response to FOIA
requests) and OSHA had not been made
aware of widespread issues regarding
employee reidentification, the agency
preliminarily did not see any cause for
concern.11 Nonetheless, some
11 The only report OSHA has received regarding
actual reidentification of employees from data
released by OSHA is discussed below. And, as
noted in that discussion, it is not clear from the
report that the information which caused the
reidentification is comparable to the information
that would be released pursuant to this rulemaking
(e.g., the size of the establishment where the
identified employees worked, the information that
caused them to be reidentified). Given that
uncertainty and the fact that OSHA has been
releasing information from establishments’ Forms
300 and 301 in response to FOIA requests for many
years, this single report does not persuade the
agency that the benefits of this rulemaking are
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
commenters argued that OSHA
underestimated the possibility that
personal information will be disclosed
under this rule because third parties
(such as data miners, the media, or even
neighbors or acquaintances of an injured
or ill worker) will be able to determine
the identity of that worker.
Some of these comments seem to
assume that establishments will submit
all information on the Forms 300 and
301 to OSHA, something that has never
been under consideration (see, e.g.,
Docket IDs 0007, 0013, 0062). Others,
however, expressed concern that, even
though OSHA intends to delete names
and other identifiable information from
the collected 300 and 301 data, enough
information will remain in the
published data for the public to identify
injured or ill employees (Docket IDs
0053, 0059, 0062, 0081, 0086, 0090). For
example, the Motor and Equipment
Manufacturers Association commented,
‘‘concerns that individual data fields
could be linked and used to identify
injured employees—even if the
information, standing alone, would not
be considered traditional PII—were
raised in prior rulemakings and were a
part of OSHA’s justification for issuing
the 2019 rescission rule’’ (Docket ID
0075).
Some such commenters expressed
concerns about the publication of
specific fields. For example, the Plastics
Industry Association (PIA) expressed
concern about the identification of
workers through the publication of
information about job title, department,
and gender (Docket ID 0086). PIA also
noted that ‘‘many employees have
established social network accounts that
list their name and position with their
employer. Those profiles typically
include the month and year the
employee began working for the
employer, a potentially reliable personal
identifier that corresponds to the date of
hire listed in field 4. Some unknown
number of those profiles include birth
dates, a potentially reliable personal
identifier that corresponds to field 3’’
(Docket ID 0086). Consequently, PIA
argued that OSHA should either exclude
birth date and hiring date data from the
collected information or reliably
establish certain fields of collected
information that are available only to
OSHA and not the general public
(Docket ID 0086).
An anonymous commenter also stated
that ‘‘columns C, D, E, and F of the 300
form and [(job title, date of injury of
onset of illness, where the event
occurred, and the description of the
outweighed by what OSHA believes is a minimal
risk to employee privacy.
PO 00000
Frm 00050
Fmt 4701
Sfmt 4700
injury or illness, parts of body affected,
and object/substance that directly
injured or made person ill)] and fields
3, 11, 13, 14, 15, 16, and 17 of the 301
form [(date of birth, date of injury or
illness, time of event, and descriptions
of what the employee was doing just
before the incident occurred, what
happened, what the injury or illness
was, and what object or substance
directly harmed the employee)] should
be submitted but not made accessible by
an member of the public on the
internet’’ (Docket ID 0074).
According to some of the commenters
who expressed concern about indirect
identification, the concern is
particularly acute in smaller
communities where more of the
residents know each other. The U.S.
Poultry and Egg Association
commented, ‘‘We emphasize that many
of our members operate establishments
in small, rural locations. People know
one another. Publishing this information
and data will significantly impact
employee privacy. And simply
redacting the names of the persons
affected will not prevent people—
particularly in small towns—from
knowing exactly who was injured and
the extent of the injury.’’ (Docket ID
0053). The North American Insulation
Manufacturers Association and National
Association of Home Builders made
similar comments (Docket IDs 0081,
0059).
A related concern involves data
companies that have developed tools
that scrape data and link to relational
databases. PRR commented that
‘‘developers will be able to create tools
that scrape [public injury and illness
data] . . ., including job titles, facility
locations, company names and facts
from open narrative text fields’’ and,
when used in combination with
information obtained via other internet
sources, ‘‘developers will be able to
potentially re-identify individuals with
a high degree of accuracy.’’ In addition,
this commenter stated that developers
will be able to use the same tools,
including artificial intelligence
algorithms, for a multitude of reasons
including to develop targeted sales
campaigns and recruitment strategies,
which would not contribute to
workplace safety (Docket ID 0094).
As discussed in detail in Section
III.B.4.c–h of this Summary and
Explanation, other commenters
supported the publication of the fields
OSHA proposed to publish. For
example, AFL–CIO agreed with the
agency’s determination about what to
publish and what to collect but not
publish, noting that the agency
‘‘carefully considered issues of worker
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
privacy’’ (Docket ID 0061). Similarly,
the National Employment Law Project
(NELP) stated that ‘‘adopting the
proposed standard will not put
individual privacy at risk’’ (Docket ID
0049, Attachment 2). NELP cited to
OSHA’s preliminary decision to
withhold certain fields from disclosure
as one of the reasons it believed that
worker privacy was not at risk (Docket
ID 0049, Attachment 2).
Still other interested parties argued in
favor of publication of such information.
For example, NIOSH noted that
information such as age and date of hire
could be useful information to publish
(Docket ID 0035, Attachment 2; see also
Docket ID 0083 (agreeing with NIOSH’s
comment)). However, NIOSH added that
if cannot be released as part of the
individual injury case records, it is still
important for this data to be used in
aggregate analysis of injuries on the
industry and occupation levels’’ (Docket
ID 0035, Attachment 2). NIOSH further
requested that OSHA facilitate analysis
of these data ‘‘under terms of data use
agreements with other Federal or State
government agencies (such as NIOSH or
State health departments) (Docket ID
0035, Attachment 2). The Council of
State and Territorial Epidemiologists
also generally supported the
dissemination of collected information
from existing records, stating that
‘‘[m]aking this information broadly
available is consistent with the growing
recognition, predominant in the patient
safety field, that transparency—sharing
of information, including information
about hazards—is a critical aspect of
safety culture (Docket ID 0040). Further,
again as discussed in Section III.B.4.c–
h of this Summary and Explanation,
commenters argued that the publication
of the data OSHA proposed to make
public will be beneficial to employers,
employees, Federal and State agencies,
researchers, workplace safety
consultants, members of the public and
other interested parties.
Having considered the comment on
these issues, OSHA recognizes the
concerns of interested parties who are
concerned about publication of select
information from establishments’ Forms
300 and 301, but believes these risks are
mitigated by decisions OSHA has made
with regard to which data should be
collected and published and other
safeguards that OSHA will be observing
(e.g., only requiring larger
establishments to submit data). First, as
noted above, OSHA has decided to
collect but not publish five fields from
Form 301 that it has decided contain
information about personal
characteristics, employment history,
and medical treatment: Age (calculated
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
from date of birth in field 3), date hired
(field 4), gender (field 5), whether the
employee was treated in the emergency
room (field 8), and whether the
employee was hospitalized overnight as
an in-patient (field 9). The agency
believes it is appropriate to refrain from
releasing these data because of privacy
concerns and the potential risk of
indirect individual identification raised
by commenters regarding the
publication of this information. As
noted above, this decision is consistent
with the manner in which OSHA
handles responses to FOIA requests, as
well as 29 CFR 1904.35(b)(2)(v)(A)–(B).
However, as discussed below in
Section III.D of this Summary and
Explanation, OSHA still finds that there
is a significant safety and health benefit
with the collection and analysis of
information about these fields. For
example, in some cases, young workers
lack necessary training and experience
and may be assigned to more hazardous
tasks, subjecting them to higher rates of
injury or illness in some industries and
occupations. Likewise, it is important
for OSHA to know whether older
workers are more vulnerable to certain
types of injuries and illnesses. Also,
information about gender is valuable to
OSHA in determining whether men or
women face greater risk to certain
workplace hazards (e.g., injury victims
of intentional attacks in the workplace
are disproportionately likely to be
women). In addition, information about
visits to emergency rooms and hospitals
assists OSHA in tracking the type and
severity of employee injuries and
illnesses in specific industries and
occupations. Further, OSHA could use
these data in combination with other
available data, such as Severe Injury
Reporting data, to assess data accuracy
and reporting compliance.
Although OSHA has found that it is
not appropriate to publish the five fields
from Form 301, the agency notes and
will consider NIOSH’s suggestion that
those fields could be shared with
NIOSH and other government agencies
outside of this rulemaking utilizing
appropriate privacy protections, e.g., via
a written data sharing agreement with
robust privacy protections.
As to the fields that OSHA plans to
collect and publish (e.g., job title), the
agency believes that the final rule
appropriately protects against reidentification of individuals via the
release of this information. Specifically,
the final rule requires only
establishments with 100 or more
employees, in certain designated, highhazard industries, to electronically
submit information from their Forms
300 and 301. OSHA believes it is less
PO 00000
Frm 00051
Fmt 4701
Sfmt 4700
47303
likely that employees in these larger
establishments would be identified
based on the limited recordkeeping data
posted on the public website, even in
small towns. Moreover, in the vast
majority of cases, at establishments with
100 or more employees, OSHA believes
it is unlikely that anyone other than
employees at the workplace would be
able to use the collected and published
data from the Forms 300 and 301 to
identify the injured or ill employee. For
example, if only one individual
performs a certain job at an
establishment with 100 or more
employees, OSHA believes that it is
highly unlikely that anyone other than
employees with specific knowledge of
that workplace would be able to use the
remaining information from the Forms
300 and 301 to identify that employee.
As discussed above, employees at the
worksite already have access to
information from the Forms 300 and
301, and thus publication of these forms
would not add any risk of individual
employee identification.
In fact, even though OSHA has
released redacted Forms 300 and 301 in
response to FOIA requests for more than
a decade (see the discussion of the
Freedom of Information Act in Section
III.B.5 of this Summary and Explanation
for more details), only one commenter
claimed knowledge of any employees
being identified through OSHA data.
Specifically, the Coalition asserted that
several members of the Coalition have
had third parties, including the media,
contact their employees about their
personal and medical information,
including information related to
COVID–19, because their identities were
discerned from information provided to
and released by OSHA (Docket ID 0087).
The Coalition’s comment did not
specify the size of the establishments at
which the employees contacted by the
third parties worked (i.e., whether the
establishments employed fewer than
100 employees), how the third parties
used the information OSHA released to
identify those employees, or whether
there is any reason to believe that the
employees’ identities were not already
publicly known. It also does not specify
whether the employee identities became
known through the release of the injury
and illness data at issue in this
rulemaking (i.e., Forms 300 and 301),
another document in the released
portion of the inspection files, or a
combination of the two. Consequently,
based on the information submitted by
this commenter, it is impossible to tell
whether the third parties would have
been able to identify these ‘‘several’’
employees using the case-specific
information OSHA plans to collect and
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
47304
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
release in this rulemaking—information
that will be submitted by relatively large
establishments.
Nevertheless, OSHA takes the issue of
employee privacy and the possibility of
employee re-identification very
seriously. As discussed in Section
III.B.1 of this Summary and
Explanation, OSHA chose the 100employee threshold for the collection of
case-specific data, in part, to minimize
the burden on small businesses and to
protect the identity of employees by
only requiring relatively large
businesses to submit their data. It
similarly has carefully considered
which fields from these forms should be
collected and released with employee
re-identification in mind. With these
safeguards, OSHA believes the risk of
indirect employee identification is
minimal.
Moreover, as discussed throughout
this preamble, OSHA finds that the
benefits to worker and safety and health
that stem from the release of this
information outweigh any privacy risks.
For example, as to job title specifically,
researchers will be able to use this
information to analyze and identify
specific occupations associated with
particular types of injuries and illnesses
in the workplace. Also, publication of
such data will allow the public to better
understand and evaluate the injury and
illness rates for certain jobs, tasks, and/
or occupations. Potential employees
will be able to review published data to
assess the workplace injury/illness
experience of a given job at a particular
facility. In turn, employers will focus
their safety and health efforts to reduce
the number of injuries and illnesses
associated with certain jobs as a way to
attract well-qualified job candidates.
Similarly, the publication of
information about job title will assist
researchers in analyzing and identifying
injury and illness trends for specific
jobs, tasks, or occupations. Better
analysis of these data should result in
the development of improved mitigation
strategies and result in the reduction of
injuries and illnesses for certain jobs.
Similarly, OSHA believes that the
publication of the other fields it
proposed to publish will have safety
and health benefits that outweigh any
small risks to worker privacy. For
example, time employee began work
will help OSHA, employers,
researchers, and others assess the
relationship between workplace safety/
health and known risks such as shift
work and fatigue.
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
8. The Experience of Other Federal
Agencies
As noted above, OSHA’s belief that it
can collect and publish the data at issue
without harm to privacy or other
interests is supported by the experience
of its sister agency, the Mine Safety and
Health Administration (MSHA). Under
30 CFR part 50, MSHA requires mine
operators to submit an incident report
(Mine Accident, Injury and Illness
Report, MSHA Form 700–1) within ten
working days for every occupational
injury, illness, or near-miss incident
occurring at a mine. The MSHA Form
700–1 includes 27 mandatory fields,
including a description of the incident,
the nature of the injury or illness, the
job title of the affected worker, and the
employee’s work activity at the time of
the injury or illness. Under this
reporting system, mine operators use an
authentication code and password to
securely submit establishment-specific,
case-specific, injury and illness data
online. MSHA maintains the injury and
illness information on its website and
the information is made available to the
public through downloadable format.
The submitted information is reviewed
by at least three approving authorities,
and PII is redacted, before it is uploaded
to the database for public release. This
system has been in place since 1999
with no adverse results.
Several commenters also suggested
that MSHA’s experience supports
OSHA’s plan to publish redacted
information on occupational injuries
and illnesses (e.g., Docket IDs 0049,
0061, 0063). The National Employment
Law Project commented, ‘‘MSHA keeps
and has kept for decades the PII on the
form protected. Clearly, MSHA’s system
demonstrates that the Department of
Labor can post case specific data
without releasing PII’’ (Docket ID 0049).
The AFL–CIO recommended that OSHA
collaborate with MSHA, NIOSH and
other agencies ‘‘with a demonstrated
commitment and capability to collect
and utilize injury and illness data, while
protecting employee privacy, and
institute similar procedures for the
collection, sharing and utilization of
injury and illness data reported on the
OSHA Form 300 and Form 301’’ (Docket
ID 0061). Worksafe submitted similar
comments and added that OSHA’s
proposed rule is quite modest compared
to the reporting requirements for
employers in the mining industry
(Docket ID 0063). OSHA has been and
expects to continue consulting with
MSHA, NIOSH, and other Federal
agencies while implementing the injury
and illness data collection and
PO 00000
Frm 00052
Fmt 4701
Sfmt 4700
publication requirements of this final
rule.
Finally, on this topic, OSHA notes
that MSHA is not alone in its release of
information that theoretically could
identify individuals indirectly if
released and combined with other
information. The Federal Railroad
Administration (FRA) posts Accident
Investigation Reports filed by railroad
carriers under 49 U.S.C. 20901 or made
by the Secretary of Transportation under
49 U.S.C. 20902; in the case of highwayrail grade crossing incidents, these
reports include personally identifiable
information (age and gender of the
person(s) in the struck vehicle). In
addition, the Federal Aviation
Administration (FAA) posts National
Transportation Safety Board (NTSB)
reports about aviation accidents. These
reports include information about
employees, including job history and
medical information. Again, OSHA is
not aware of any issues related to the
release of such information, a lack that
OSHA believes supports its decision to
release the relevant information
collected in this rulemaking.
9. Risk of Cyber Attack
Cyber security is another issue that
OSHA has considered in thinking
through how to protect the Form 300
and 301 information safe. OSHA
received comments on this issue in the
rulemaking that led to the 2016 final
rule and, after considering those
comments, the agency disagreed with
those commenters who suggested that
OSHA would not be able to protect
employee information (81 FR 29633). In
so doing, OSHA observed that ‘‘[a]ll
federal agencies are required to establish
appropriate administrative and
technical safeguards to ensure that the
security of all media containing
confidential information is protected
against unauthorized disclosures and
anticipated threats or hazards to their
security or integrity’’ (81 FR 29633).
Similarly, in the 2019 final rule, OSHA
again received and considered
comments on the issue of cyber security,
ultimately finding that ‘‘the ITA data
meet the security requirements for
government data’’ (84 FR 388). In
addition, the agency did ‘‘not find that
collecting the data from Forms 300 and
301 would increase the risk of a
successful cyber-attack’’ (84 FR 388).
However, the agency noted that some
risk of cyberattack and subsequent data
risk remained (84 FR 388). And OSHA
Stated that it shared concerns of some
commenters about how having
thousands of businesses upload a large
volume of additional data could
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
generally increase risk for cyber-security
issues (84 FR 388).
OSHA received some comments about
cyber security in response to the NPRM
in this rulemaking. For example, the
U.S. Poultry & Egg Association
commented, ‘‘On August 14, 2017, the
U.S. Department of Homeland Security
notified OSHA of a security breach of
the recently activated online incident
reporting page. While the full extent of
this breach is unknown, it is an
unsettling circumstance for employers
that a security incident occurred and to
learn of the occurrence of a security
breach significant enough to shut down
the reporting system.’’ (Docket ID 0053).
The Coalition submitted a comment
that addressed the same potential
security breach: ‘‘As OSHA is well
aware, industry concerns about worker
privacy breaches came to fruition
shortly after the ITA was rolled-out. As
determined by the Department of
Homeland Security (‘‘DHS’’), a serious
potential breach of the ITA system
occurred . . . virtually immediately
after the ITA system had gone live.
Although the security issues associated
with that breach have since been
resolved, industry is fearful of
submitting hundreds of thousands of
pieces of personal data with personal
identifier information (‘‘PII’’) on a portal
that has already had suspicious activity
that warranted DHS scrutiny. As OSHA
notes, the ITA episode demonstrated
that such large data collection will
inevitably encounter malware and may
even incentivize cyber-attacks on the
Department of Labor’s (‘‘DOL’’)’s IT
system. We are aware of OSHA’s view
that, since 2019, the DOL’s
cybersecurity protective software has
improved. However, the cyber security
risk of employees’ highly confidential
and personal medical information being
hacked and published, or used in other
even more nefarious ways, has become
even more serious since the Agency
decided it was too risky to collect 300
and 301 level data a few years ago.
Since 2019, the threat and
sophistication of cybersecurity attacks
has also grown immensely, outpacing
the development of cybersecurity
protections. The lack of confidence in
protecting data has never been greater in
this country.’’ (Docket ID 0087).
In response, OSHA notes that an
investigation of the 2017 incident by the
Department of Labor’s IT team found
there was no breach of data. The ITA
detected a virus on a user’s computer
and blocked that user from accessing the
system, as it was designed to do. In
other words, the ITA’s security system
functioned properly and there was no
security breach. No other cyber-security
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
issues have been reported. In addition,
as explained above, the agency’s
decision to change course on collecting
information from Forms 300 and 301
was not based on cyber-security
concerns.
This successful performance of the
ITA’s security system in this attempted
breach underscores OSHA’s finding in
2016: although here is some risk cyber
attack, the Department of Labor’s
systems are prepared to defend against
such attacks. As explained in the 2016
final rule, regardless of the category of
information, all Department of Labor
agencies must comply with the Privacy
and Security Statement posted on DOL’s
website. As part of its efforts to ensure
and maintain the integrity of the
information disseminated to the public,
DOL’s IT security policy and planning
framework is designed to protect
information from unauthorized access
or revision and to ensure that the
information is not compromised
through corruption or falsification.
Consequently, in this rulemaking,
OSHA finds that the data that will be
collected in compliance with this final
rule will be protected from cyber attack
in accordance with the appropriate
government standards.
10. The Health Information Portability
and Accountability Act (HIPAA)
OSHA also received comments from
some interested parties expressing
concern about how the proposed rule
would relate to the Health Insurance
Portability and Accountability Act of
1996 (HIPAA), Public Law 101–191
(e.g., Docket IDs 0007, 0013, 0059,
0082). For example, two interested
parties commented that the OSHA
Forms 300 and 301 include personal
and private information about an
employee’s health and wellness, and
that requiring the submission of such
information to OSHA will place
employers in legal liability due to
HIPAA restrictions (Docket IDs 0007,
0013). But as explained below, HIPAA’s
implementing regulations specifically
allow employers to release workplace
injury and illness data to OSHA.
The U.S. Department of Health and
Human Services (HHS) implements
HIPAA through regulations at 45 CFR
parts 160 and 164, known as the HIPAA
‘‘Privacy Rule.’’ The Privacy Rule
protects the privacy of individually
identifiable health information (referred
to as ‘‘protected health information’’ or
‘‘PHI’’) maintained or transmitted by
HIPAA-covered entities and their
business associates. The term ‘‘covered
entity’’ includes health plans, health
care clearing houses, and health care
providers who transmit health
PO 00000
Frm 00053
Fmt 4701
Sfmt 4700
47305
information in electronic form (see 45
CFR 160.104). OSHA is not a covered
entity for purposes of the Privacy Rule,
so the use and disclosure requirements
of the Privacy Rule do not apply to
OSHA.
The HIPAA Privacy Rule also
excludes certain individually
identifiable health information from the
definition of PHI. For example,
employment records held by a covered
entity in its role as an employer are not
PHI and the HIPAA Privacy Rule does
not prohibit the disclosure of health
information contained in employment
records to OSHA (see 45 CFR part
160.103). Even for information that
qualifies as PHI, the Privacy Rule
specifically permits disclosures of PHI
without an individual’s authorization
for certain purposes, including when
they are required to do so by another
law (see 45 CFR 164.512(a)). HHS has
made clear that this provision
encompasses an array of binding legal
authorities, including statutes, agency
orders, regulations, or other Federal,
State, or local governmental actions
having the effect of law (see 65 FR
82668). Similarly, a covered entity may
also disclose PHI without an
individual’s authorization to ‘‘public
health authorities’’ and to ‘‘health
oversight agencies’’ (see 45 CFR parts
164.512(b) and (d)). The preamble to the
Privacy Rule issued in 2000 specifically
mentions OSHA as an example of both
(see 65 FR 82492, 82526). Finally, the
Privacy Rule also permits a covered
entity who is a member of the
employer’s workforce and provides
healthcare at the request of an employer,
to disclose to employers protected
health information concerning workrelated injuries or illnesses, or workrelated medical surveillance in
situations where the employer has a
duty under the OSH Act, the Federal
Mine Safety and Health Act, or under
similar State law to keep records on or
act on such information. Accordingly,
covered entities generally may not
restrict or refuse to disclose PII required
by an OSHA standard or regulation
based on the provisions of the Privacy
Rule.
OSHA also received comments from
interested parties that, while
recognizing that HIPAA does not apply
to the information disclosures at issue
here, argued that OSHA ‘‘should
examine the principles of HIPPA in
determining how to proceed—or not
proceed—with this rule’’ (Docket ID
0059; see also Docket ID 0082). For
example, NAHB asserted ‘‘HIP[A]A
recognizes the legitimate privacy
interests that individuals have with
respect to their own health information.
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
47306
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
HIP[A]A also recognizes that aspects of
a person’s health record can serve as an
identifier of a person under certain
circumstances. And HIP[A]A recognizes
that this is not acceptable’’ (Docket ID
0059). NAHB further argued that ‘‘[t]he
procedure for OSHA reviewing this
should have been thoroughly
considered and addressed in the
proposed regulation; it was not’’ (Docket
ID 0059).
OSHA agrees with commenters who
suggested that the agency consider
applying the principles set forth in the
Privacy Rule for the de-identification of
health information. Health information
is individually identifiable if it does, or
potentially could, identify the
individual. As explained by
commenters, once protected health
information is de-identified, there are
no longer privacy concerns under
HIPAA. Again, it is OSHA’s policy
under the final rule not to release any
individually identifiable information.
As discussed elsewhere in this
document, procedures are in place to
ensure that individually identifiable
information, including health
information, will not be publicly posted
on OSHA’s website.
However, OSHA disagrees with
NAHB’s claim that ‘‘OSHA has provided
no thought regarding what types of
information it will or should redact to
protect employees, except to mention
that it may redact names and other
information that it would otherwise
need to redact under the Freedom of
Information Act’’ or that the agency’s
procedure was not ‘‘thoroughly
considered and addressed’’ in the
proposal (Docket ID 0059). As reiterated
above, the proposal specified which
fields the agency proposed to collect
and what subset of that collected
information it planned to release. It also
detailed its plans to ensure that it did
not collect certain data (e.g., by not
requiring the submission of certain data
fields and designing the system to
remind establishments not to submit
certain data) and ways to protect the
data it does receive (e.g., carefully
choosing which fields would be
publicly released and using scrubbing
technology to ensure that data contained
in the fields to be released did not
unintentionally include information
which could reasonably be expected to
identify individuals directly). In sum,
contrary to NAHB’s assertion, the
agency has carefully considered how to
protect information that could
reasonably be expected to identify
individuals directly and explained its
plans and thinking in the proposal.
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
11. The Americans With Disabilities Act
(ADA)
OSHA also received comments related
to the Americans with Disabilities Act
(ADA). Specifically, in their comment,
the Seventeen AGs noted that ‘‘if a
certain type of occupational injury
regularly leads to ongoing disability in
a particular industry or place of work,’’
the case-specific data that would be
collected and published under the
proposed rule would allow States to
‘‘explore what accommodations those
employers provide, for example,
whether affected workers have been
placed in appropriate positions with
reasonable accommodations as required
under the [(ADA)] and similar State
laws’’ (Docket ID 0045). OSHA agrees
with this commenter that this kind of
inquiry is one of the many benefits that
will stem from this final rule.
The Seventeen AGs’ mention of the
ADA raises the question of its
applicability to this final rule, a
question that has been raised in the
rulemakings culminating in the 2016
and 2019 final rules (see 81 FR 29665–
66; 84 FR 387). At various times as
OSHA has considered whether to collect
and publish information from
establishments’ Forms 300 and 301 (and
300A, as well), commenters have raised
concerns about whether the ADA would
prohibit establishments from releasing
health and disability-related
information to OSHA. It would not. The
ADA would permit the collection by
employers of such information.
By its terms, the ADA limits
disability-related inquiries and medical
examinations of job applicants or
employees and requires confidentiality
for medical information obtained from
any such inquiries or medical
examinations. However, the ADA also
states that ‘‘nothing in this Act shall be
construed to invalidate or limit the
remedies, rights, and procedures of any
federal law’’ (see 29 U.S.C. 12201(b)). In
enacting the ADA, Congress was aware
that other Federal standards imposed
requirements for testing an employee’s
health, and for disseminating
information about an employee’s
medical condition or history,
determined to be necessary to preserve
the health and safety of employees and
the public (see H.R. Rep. No. 101–485
pt. 2, 101st Cong., 2d Sess. 74–75
(1990), reprinted in 1990 U.S.C.C.A.N.
356, 357 (noting, e.g., medical
surveillance requirements of standards
promulgated under the OSH Act and the
Federal Mine Safety and Health Act,
and stating ‘‘[t]he Committee does not
intend for [the ADA] to override any
medical standard or requirement
PO 00000
Frm 00054
Fmt 4701
Sfmt 4700
established by federal . . . law . . . that
is job-related and consistent with
business necessity’’); see also 29 CFR
part 1630 App.). The ADA yields to the
requirements of other Federal safety and
health standards and regulations. The
implementing regulation, codified at 29
CFR 1630.15(e), explicitly states that an
employer’s compliance with another
Federal law or regulation may be a
defense to a charge of violating the ADA
(see Enforcement Guidance on
Disability-Related Inquiries and Medical
Examinations of Employees under the
ADA | U.S. Equal Employment
Opportunity Commission (eeoc.gov)
Enforcement Guidance on DisabilityRelated Inquiries and Medical
Examinations of Employees under the
ADA | U.S. Equal Employment
Opportunity Commission (eeoc.gov)
(available at: https://www.eeoc.gov/
laws/guidance/enforcement-guidancedisability-related-inquiries-and-medicalexaminations-employees), at Question
21). The ADA recognizes the primacy of
other Federal laws including Federal
safety and health regulations; therefore,
such regulations, including mandatory
OSHA recordkeeping requirements and
disclosure requirements, pose no
conflict with the ADA (cf. Albertsons,
Inc. v. Kirkingburg, 527 U.S. 555, (1999)
(‘‘When Congress enacted the ADA, it
recognized that federal safety and health
rules would limit application of the
ADA as a matter of law.’’)).
It also is worth noting that the
information in the OSHA injury and
illness records is similar to that found
in workers’ compensation forms and
may be obtained by employers by the
same process used to record needed
information for workers’ compensation
and insurance purposes. The Equal
Employment Opportunity Commission
(EEOC), the agency responsible for
administering Title I of the ADA, which
addresses employment, recognizes a
partial exception to the ADA’s strict
confidentiality requirements for medical
information regarding an employee’s
occupational injury or workers’
compensation claim (see generally 29
CFR 1630.15(e) and EEOC Enforcement
Guidance: Workers’ Compensation and
the ADA (available at https://
www.eeoc.gov/laws/guidance/
enforcement-guidance-workerscompensation-and-ada), (September 3,
1996)). For these reasons, OSHA does
not believe that the mandatory
submission and publication
requirements in § 1904.41 of this final
rule conflict with the confidentiality
provisions of the ADA.
E:\FR\FM\21JYR2.SGM
21JYR2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
12. The Privacy Act
The Plastics Industry Association
commented that a failure by OSHA to
exclude or reliably redact all personal
identifiers and personally identifiable
medical information would violate the
Privacy Act of 1974, 5 U.S.C. 552a, as
well as other privacy laws (Docket ID
0086).
In response, OSHA notes that the
Privacy Act is a Federal statute that
establishes a code of fair information
practices that governs the collection,
maintenance, use, and dissemination of
personal identifiable information by
Federal agencies. The Privacy Act only
applies to records that are located in a
‘‘system of records.’’ As defined in the
Privacy Act, a system of records is ‘‘a
group of any records under the control
of any agency from which information
is retrieved by the name of the
individual or by some identifying
number, symbol, or other identifying
particular assigned to the individual’’
(see 5 U.S.C. 552a(a)(5)). Because OSHA
injury and illness records are retrieved
neither by the name of an individual,
nor by some other personal identifier,
the Privacy Act does not apply to OSHA
injury and illness recordkeeping
records. As a result, the Privacy Act
does not prevent OSHA from posting
recordkeeping data on a publicly
accessible website. However, OSHA
again wishes to emphasize that,
consistent with the applicable
exemptions under FOIA, the agency
does not intend to post personally
identifiable information on the website.
ddrumheller on DSK120RN23PROD with RULES2
13. Privacy Impact Assessment
Section 208 of the E-Government Act
requires Federal agencies to conduct a
Privacy Impact Assessment when
developing or procuring new
information technology involving the
collection, maintenance, or
dissemination of information in
identifiable form or when making
substantial changes to existing
information technology that manages
information in identifiable form. In the
preamble to the proposed rule, OSHA
stated that it expected to complete a
Privacy Impact Assessment before
issuing the final rule (87 FR 18540).
Several commenters supported this step
(Docket IDs 0058, 0068, 0072, 0077,
0094).
OSHA now has completed a Privacy
Impact Assessment for this final rule
which is available at https://
www.dol.gov/agencies/oasam/centersoffices/ocio/privacy (Docket ID 0107). In
the Privacy Impact Assessment, OSHA
determined that the safeguards and
controls described in this preamble will
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
adequately protect the collected and
published data addressed in the final
rule.
14. Other Issues Related to OSHA’s
Proposal To Require the Submission of
and Then Publish Certain Data From
Establishments’ Forms 300 and 301
a. Miscellaneous Comments
OSHA received a variety of other
comments related to its proposal to
require certain establishments to submit
certain data from their Forms 300 and
301 and its plan to then publish a subset
of that data. For example, some
interested parties expressed concern
over repeated rulemakings addressing
the electronic submission of injury and
illness data to OSHA (e.g., Docket IDs
0058, 0060, 0071, 0072, 0077). The
Associated Builders and Contractors
(ABC) commented, ‘‘we hope that
OSHA recognizes that the frequent
revisions it has made related to the
requirements surrounding electronic
reporting of injury and illness data has
caused confusion and uncertainty
among construction contractor
employers in respect to what
requirements apply to their businesses,
especially for small businesses’’ (Docket
ID 0071). Similarly, the Window and
Door Manufacturers Association
commented, ‘‘OSHA must also consider
the impact that the agency’s repeated
changes and reversals to its
recordkeeping policies has had on
employers, especially smaller entities.
This year’s proposed rule is now the
third such rulemaking by OSHA on
injury and illness recordkeeping since
2014.’’ This commenter added that the
frequent changes to recordkeeping
regulations have resulted in confusion
among employers regarding what
requirements apply to their business
(Docket ID 0072). The Coalition for
Workplace Safety, the National
Demolition Association, and the
National Lumber and Building Materials
Association submitted similar
comments (Docket IDs 0058, 0060,
0077).
OSHA acknowledges that some
employers may be confused by the
multiple rulemakings amending the part
1904 requirements for certain employers
to electronically submit injury and
illness data from their Forms 300 and
301. However, OSHA believes this
rulemaking provided potentially
affected employers with clear notice of
the possibility that their obligations
might change. And OSHA plans to
implement a robust roll-out plan to alert
employers of the final rule’s
requirements. Moreover, even if some
confusion remains, OSHA must place
PO 00000
Frm 00055
Fmt 4701
Sfmt 4700
47307
primary importance on whether new
occupational safety and health
requirements will help ‘‘assure so far as
possible . . . safe and healthful working
conditions . . . by providing for
appropriate reporting procedures . . .
which will help achieve the objective of
th[e] Act and accurately describe the
nature of the occupational safety and
health problem’’ (see 29 U.S.C.
651(b)(12)). As discussed above in
Section II, Legal Authority, Section 8 of
the OSH Act provides OSHA with broad
authority to prescribe regulations as
necessary or appropriate for the
enforcement of the OSH Act and for
developing information about the causes
and prevention of occupational injuries
and illnesses. Federal agencies,
furthermore, are permitted to change or
reverse prior policies, provided that
they provide a reasoned explanation for
the change. In this rulemaking, OSHA
has made every effort to balance the
benefits of this rule to occupational
safety and health against any potential
burden created for the regulated
community, and has explained the
reasons supporting any changes in
OSHA’s prior policies throughout this
preamble.
As explained in more detail below,
based on its experience with the
collection of injury and illness data
through the ITA, and with the
advancements in technology to protect
individual privacy, OSHA has
determined that it is necessary and
appropriate at this time to require
certain larger establishments in higher
hazard industries to electronically
submit data from their Forms 300 and
301 to OSHA once a year. OSHA
believes that this requirement to submit
case-specific data will have significant
benefits for occupational safety and
health, especially since the requirement
applies to certain establishments in
higher hazard industries where such
reporting will have the greatest impact
on reducing injury and illness rates.
b. The Effect of the Rule on the
Accuracy of Injury and Illness Records
OSHA received comments expressing
concern that OSHA collection and
publication of data from Forms 300 and
301 would lead to less accurate data,
because employers may respond by
recording fewer injuries and illnesses
(i.e., under-recording) (e.g., Docket IDs
0052, 0053, 0088, 0090). One
commenter, Angela Rodriguez, stated
that some employers may be tempted to
avoid logging recordable cases (Docket
ID 0052). The U. S. Poultry & Egg
Association commented that employers
might record less information because of
fears that recording more cases could
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
47308
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
harm recruitment and retention of
employees (Docket ID 0053), while the
National Retail Federation stated that
‘‘fear of developing a negative image in
their communities, may cause managers
to underreport injuries and illnesses
that occur at the workplace to protect
their business reputation’’ thereby
reducing the accuracy of the data OSHA
collects (Docket ID 0090). NIOSH
commented that employers might
submit inflated employee counts to
OSHA in order to reduce their injury
and illness rates or alter their NAICS
code to avoid the rule’s requirements
(Docket ID 0035, Attachment 2).
In response, OSHA notes that, as
discussed above in Section III.B.4 of this
Summary and Explanation, the agency
already publishes establishment-specific
information from the OSHA Form 300A.
Because the new information employers
will be submitting under the final rule
(i.e., the information from Forms 300
and 301) is simply the more specific
information underlying the data from
the 300A that employers are already
submitting (and that is already being
published online), it is not clear to
OSHA why publishing the additional
information would change any existing
incentives to under-record or to falsify
information. Commenters did not
provide any examples of increased
under-recording as a result of the
collection and publication of Form
300A data, nor is OSHA aware of any.
While OSHA believes that most
employers act in good faith when
carrying out their recordkeeping duties
under the OSH Act, failing to record
injuries or illnesses, or submitting false
information to OSHA, could result in a
citation for a violation of OSHA’s
recordkeeping regulations. In addition,
employers that falsify information
provided to the government could also
be found to have violated 18 U.S.C.
1001(a), which prohibits the knowing
and willful provision of false
information regarding material facts on
matters that are under the jurisdiction of
the Executive branch, or Section 17(g) of
the OSH Act, 29 U.S.C. 665(g), which
prohibits knowingly making any false
statement, representation, or
certification in any application, record,
report, plan, or other document filed or
required to be maintained pursuant to
the OSH Act.
Some commenters raised the
possibility that expanded data
collection and publication could lead
some employers to record fewer injuries
and illnesses for which workrelatedness is unclear (e.g., Docket IDs
0042, 0086, 0088). For example, the
Chamber of Commerce stated that
employers ‘‘will reconsider whether to
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
record as many injuries or illnesses’’
and pointed in particular to cases in
which work-relatedness is difficult to
determine (Docket ID 0088).
While OSHA recognizes that there are
cases in which the analysis of workrelatedness may not be straightforward,
OSHA also notes that employers are
required to make good faith efforts to
determine whether an injury or illness
is work-related in order to establish
whether the case is recordable under
part 1904 (see § 1904.4(a)). There is a
good deal of guidance in OSHA’s
recordkeeping regulations themselves
(see § 1904.5) on how to determine if an
employee’s injury or illness is workrelated, including: general guidance for
when a case is considered to be workrelated and when work-relatedness is
presumed (§ 1904.5(a)); a list of
circumstances in which cases that occur
in the work environment are not workrelated (§ 1904.5(b)(2)); and instructions
for how to determine work relatedness
when employees are injured or become
ill during work travel or while working
from home (§ 1904.5(b)(6), (7)). Further
guidance on the work-relatedness
determination, as well as useful
examples, can be found on OSHA’s web
page, Detailed Guidance for OSHA’s
Injury and Illness Recordkeeping Rule
(https://www.osha.gov/recordkeeping/
entry-faq). While OSHA does not issue
citations for over-recording, to the
extent that this rule encourages
employers to record only cases that they
have determined are work-related,
OSHA would expect the rule to increase
the accuracy of the data that is recorded
and then submitted to OSHA. Indeed,
the Chamber of Commerce appears to
support this as a likely outcome, stating
that employers ‘‘may look more closely
as to whether the injury or illness is
work related and needs to be recorded’’
(Docket ID 0088).
Some commenters also expressed
concern that expanded data collection
and publication would lead to greater
underreporting by employees of their
workplace injuries and illnesses,
thereby reducing the data’s accuracy
(e.g., Docket IDs 0042, 0055, 0056, 0070,
0086, 0087). The Employers ERecordkeeping Coalition stated that it
‘‘is very concerned that the increased
risk of employee personal and medical
information being collected by a Federal
agency and then publicized, albeit
inadvertently, will create a significant
disincentive for employees to report
workplace injuries that are recordable
events’’ (Docket ID 0087). Worksafe and
the Strategic Organizing Center
suggested that OSHA add a provision to
prohibit employer practices that
discourage the reporting of injuries and
PO 00000
Frm 00056
Fmt 4701
Sfmt 4700
illnesses by employers, pointing to
employer programs that disincentive
reporting as well as workers’ fear of
retaliation for reporting an injury or
illness to their employer (Docket IDs
0063, 0079).
With respect to the impact of privacy
concerns on employee reporting, OSHA
understands the importance of
protecting personally identifiable
information and notes that there is a
very low risk that information that
could reasonably be expected to identify
individuals directly will be disclosed as
a result of this final rule. OSHA
acknowledges commenters’ concerns
about the potential posting of this type
of information on a publicly accessible
website. However, the posting or
disclosure of information that could
reasonably be expected to identify an
individual directly is not the intent, nor
is it a likely result, of this rulemaking.
As explained in more detail in Section
III.B.6 of this Summary and
Explanation, above, OSHA believes it
has, and will have, effective safeguards
in place to prevent the disclosure of that
type of information. Further, OSHA
hopes that employers will educate their
employees about the safeguards OSHA
is putting into place to protect against
the disclosure of information that could
reasonably be expected to identify
individuals directly. OSHA also intends
to include materials for employees in
the materials that will be created to
educate interested parties about the
requirements of the rule as well as those
safeguards.
In response to Worksafe’s comment
proposing a new regulatory provision
prohibiting employer practices that
discourage employee reporting, OSHA
notes that the recordkeeping
regulations, at § 1904.35(b)(1)(i), already
require employers to establish
reasonable procedures for reporting
work-related illnesses and injuries that
do not deter or discourage employees
from accurately reporting their injuries
or illnesses. Furthermore, the
regulations explicitly prohibit
employers from discharging or
otherwise discriminating against
employees for reporting work-related
injuries and illnesses
(§ 1904.35(b)(1)(iv); see also § 1904.36).
And as OSHA clarified in the 2016 final
rule which contained these
recordkeeping provisions, a workplace
safety incentive program could be found
to violate § 1904.35 if employees are
penalized for reporting work-related
injuries or illnesses as part of the
program (81 FR 29673–74). OSHA
further stated that the changes were
designed to ‘‘promote accurate
recording of work-related injuries and
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
illnesses by preventing the underrecording that arises when workers are
discouraged from reporting these
occurrences’’ (81 FR 29669). Thus,
OSHA has addressed this issue in its
regulations since 2016. Moreover,
OSHA has recognized since at least
2012 that incentive programs that
discourage employees from reporting
injuries and illnesses by denying a
benefit to employees who report an
injury or illness may be prohibited by
Section 11(c) (see https://www.osha.gov/
laws-regs/standardinterpretations/201203-12-0; 81 FR 29673–74).
In contrast to those who argued that
the final rule will lead to less accurate
data, other commenters argued that the
expanded data collection and
publication will lead to more accurate
data, because of increased transparency
and oversight (e.g., Docket IDs 0049,
0066, 0084, 0089). For example, the
United Food and Commercial Workers
International Union (UFCW) stated,
‘‘We anticipate that the requirement that
companies submit data electronically
will improve the quantity, quality, and
accuracy of their records, and increase
OSHA’s and the public’s oversight
ability, all of which will improve
worker health and safety also’’ (Docket
ID 0066). Cal/OSHA noted that the
increased transparency created by the
publication of the data will encourage
and support accuracy in injury and
illness reporting (Docket ID 0084).
OSHA agrees with commenters who
stated that the final rule will result in
improved accuracy of injury and illness
records, due to increased transparency
and oversight by OSHA, employees, and
others, as well as awareness by
employers that their records could be
subject to additional scrutiny. Section
1904.32 already requires company
executives subject to part 1904
requirements to certify the annual
summary (Form 300A); this process
requires them to examine the OSHA 300
Log and certify that the annual summary
is correct and complete based on their
examination of the OSHA 300 Log and
their knowledge of the process by which
the information was recorded. OSHA
recognizes that most employers are
diligent in complying with this
requirement. However, a minority of
employers is less diligent, leading to
violations of the recordkeeping
regulations. It is OSHA’s hope that, if
these employers know that their data
must be submitted to the agency and
may also be examined by members of
the public and their own employees,
they may pay more attention to the
requirements of part 1904, which could
lead both to improvements in the
quality and accuracy of the information
VerDate Sep<11>2014
22:09 Jul 20, 2023
Jkt 259001
and to better compliance with § 1904.32.
Increased oversight by labor unions or a
company’s employees could lead to
corrections to the data if, for example,
a labor union discovers that a known
workplace injury of a union member is
not included in the published data and
reports the omission to the employer
(e.g., Docket ID 0049). Finally, OSHA
notes the comment from NIOSH
suggesting various means of
investigating the effect of
implementation of this final rule on
compliance with the requirements of
part 1904 (Docket ID 0035, Attachment
2). While the agency has determined
that staggered implementation, where
industries with the highest injury rates
would be required to comply first,
would be too confusing to implement,
OSHA encourages future studies to
assess the effect of the final rule on
injury and illness recording, reporting,
and data submission, and to identify
solutions if problems are found.
c. Collecting and Processing the Data
From Forms 300 and 301 Will Help
OSHA Use Its Resources More
Effectively
In the preamble to the 2019 final rule,
OSHA stated that collecting and
processing the Form 300 and 301 data
and keeping information confidential
which could reasonably be expected to
identify an employee directly would
require the agency to divert resources
from other priorities, including the
analysis of Form 300A data (84 FR 392;
see also 84 FR 387). In particular, OSHA
was concerned that collecting and
processing this data would prevent it
from ‘‘fully utilizing the data from the
Form 300As and severe injury reports it
is already collecting to improve its
enforcement and outreach objectives to
ensure compliance with the OSH Act’’
(84 FR 393). However, in the NPRM,
OSHA explained that because of
improvements in available technology,
it would no longer need to rely on
manual review or analysis for Form 300
and 301 data and had preliminarily
determined that the agency’s resourcerelated concerns described in the 2019
final rule were no longer compelling (87
FR 18541–42). In addition, OSHA
explained that the proposed rule would
increase the agency’s ability to focus
resources on those workplaces where
workers are at high risk (87 FR 18533).
In other words, the proposal would, in
some ways, save agency resources by
helping the agency be more efficient,
e.g., ‘‘allow[ing] the agency to focus its
enforcement and compliance assistance
resources based on hazard-specific
information and trends, and . . .
increas[ing] its ability to identify
PO 00000
Frm 00057
Fmt 4701
Sfmt 4700
47309
emerging hazards, at the establishment
level’’ (87 FR 18538).
A number of interested parties
submitted comments on this issue and
generally agreed that the data collected
and published under this final rule will
actually help OSHA use its limited
resources more effectively to protect
workers. For example, some interested
parties, including the Council of State
and Territorial Epidemiologists,
National COSH, the Laborers’ Health
and Safety Fund of North America,
Worksafe, the International Brotherhood
of Teamsters, Centro de los Derechos del
Migrante, and Public Citizen,
commented that requiring regular
electronic submission of injury and
illness data would help OSHA to use its
limited enforcement and compliance
assistance resources more effectively
(Docket IDs 0040, 0048, 0063, 0080,
0083, 0089, 0093). The AFL–CIO agreed
that because OSHA’s resources are very
limited, it ‘‘must maximize the use of
existing tools’’ (Docket ID 0061).
Commenters also provided examples
of how this data would help OSHA use
its resources more effectively. For
example, National COSH, the National
Employment Law Project, and the
Centro de los Derechos del Migrante
commented that ‘‘case-specific data will
help the agency identify the hazardspecific materials and other compliance
assistance resources they could direct to
employers who report high rates of
injuries or illnesses related to those
hazards,’’ and ‘‘to workers in those
industries’’ (Docket IDs 0048, 0049,
0089). These commenters also said that
the data would ‘‘aid the agency in
identifying emerging hazards . . . and
focus outreach to employers and
workers whose workplaces might
include those hazards.’’
Similarly, Public Citizen commented
that the collected data would enable
OSHA to ‘‘quickly pinpoint workplace
hazards . . . and target its enforcement
efforts’’ (Docket ID 0093). The
International Union of Painters and
Allied Trades/AFL–CIO commented
that this requirement would ‘‘ensure
factors responsible for those
pronounced illness and injuries trends
are identified and addressed in a timely
manner for the well-being of workers’’
(Docket ID 0073). Worksafe also noted
that electronic submission would allow
the agency ‘‘to search and analyze the
data’’ and provide ‘‘timely and
systematic’’ injury and illness
information that will help OSHA to
focus its enforcement efforts on
‘‘hazards that are affecting workers
now’’ (Docket ID 0063).
On the other hand, the Chamber of
Commerce questioned whether the data
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
47310
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
could actually help OSHA target its
enforcement efforts (Docket ID 0088,
Attachment 2). The Chamber stated that
injury and illness data are complex and
‘‘unavoidably subjective,’’ and asserted
that because the log only includes workrelated injuries, it does not show actual
risks—rather, ‘‘it shows whether the
employer believes that there is a
connection between the working
environment and the injuries.’’
Additionally, several commenters
reiterated OSHA’s concerns from the
2019 final rule regarding the diversion
of OSHA’s resources from other
important initiatives (e.g., Docket IDs
0058, 0070, 0076). Some such
commenters argued that any resource
diversion would be inappropriate
because OSHA is incapable of
processing and utilizing the Forms 300
and 301 data that would be received
under the proposal. OSHA has
addressed those comments elsewhere in
this preamble, explaining that the
agency has the capability to collect and
use such data (see, e.g., Section
III.B.14.d of this Summary and
Explanation). Other commenters merely
referenced OSHA’s 2019 determination
that its resources would be diverted
without analyzing the reasons OSHA
gave for reconsidering its previous
decision. Still other commenters
attacked OSHA’s findings that
improvements in technology will
decrease the resources required to
collect and process the Form 300 and
301 information and ensure that
information which could reasonably be
expected to identify an individual
directly is not publicly released. OSHA
has covered these comments elsewhere
as well (see, e.g., Section III.B.6 of this
Summary and Explanation).
Finally, the International Bottled
Water Association (IBWA) pointed to
district court rulings on the 2019 final
rule and argued, ‘‘[T]he reviewing court
agreed with OSHA’s determinations that
costly manual review of collected 300
and 301 data would be needed to avoid
a meaningful risk of exposing sensitive
worker information to public disclosure,
finding that the uncertain benefits of
collecting the 300 and 301 data did not
justify diverting OSHA’s resources from
other efforts.’’ (Docket ID 0076).
IBWA’s comment misconstrues the
court’s decision. The court did not
‘‘agree’’ with OSHA’s determination.
Rather, the court found that OSHA’s
decision was neither arbitrary nor
capricious, i.e., that OSHA had not
‘‘entirely failed to consider an important
aspect of the problem, [or] offered an
explanation for its decision that runs
counter to the evidence before the
agency’’ at the time OSHA made its
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
decision (see State of New Jersey et al.
v. Pizzella, No. 1:19–cv–00621 (D.D.C.
Jan. 11, 2021) (citation and internal
quotations omitted)). Importantly, the
court stated that ‘‘the arbitrary and
capricious standard is narrow, and a
court is not to substitute its judgment
for that of the agency (id. (citation and
internal quotations omitted)). Rather,
reviewing court’s decisions are ‘‘based
on a consideration of the relevant
factors and whether there has been a
clear error in judgment’’ (id. (citation
and internal quotations omitted)). In
short, the court did not do an
independent review of all the record
evidence and determine that OSHA
made the correct decision. Instead, it
looked to see if OSHA considered all the
relevant factors and made a reasonable
decision. The fact that an agency’s
decision based on the record at the time
was reasonable does not prevent the
agency from subsequently making a
different reasonable decision based on
new information.12 That is what OSHA
has done here.
After consideration of these
comments, OSHA agrees with
commenters that collection of casespecific information from the Form 300
and 301 will help the agency use its
enforcement and compliance assistance
resources more effectively by enabling
OSHA to identify the workplaces where
workers are at high risk. As explained
in the 2001 final rule, and as identified
by commenters, establishment-specific
injury and illness information will help
OSHA target its intervention efforts on
the most dangerous worksites and the
worst safety and health hazards, and
injury and illness data will help OSHA
to identify the scope of safety and health
hazards and decide whether regulatory
intervention, compliance assistance, or
other measures are warranted (see 66 FR
5917). OSHA disagrees with the
Chamber’s claim that the case-specific
data would not help OSHA target its
enforcement efforts because it does not
show actual risks. The Chamber is
correct in that a single recorded injury
or illness, in and of itself, does not
necessarily indicate the existence of a
risk. Similarly, recording a work-related
injury, illness, or fatality does not mean
that the employer or employee was at
fault, that an OSHA rule has been
violated, or that the employee is eligible
12 It also does not necessarily follow that an
agency could not have made a different, nonarbitrary-and-capricious decision based on the
record before the agency at the time it made its
original decision. This is part of the reason why
reviewing courts do not substitute their judgment
for that of the agency: at times, more than one
reasonable decision could follow from a given
record.
PO 00000
Frm 00058
Fmt 4701
Sfmt 4700
for workers’ compensation or other
benefits (see Note to § 1904.0). However,
an injury or illness recorded under part
1904 is an indicator of a potential risk
in the workplace, i.e., the employer has
determined that a particular injury or
illness of an employee meets the
definition of work-relatedness in 29 CFR
1904.5(a). In other words, such data can
indicate a failure in an area of an
establishment’s safety and health
program or the existence of a hazard.
The fact that they do not always do so
is not persuasive (see Section III.B.4 of
this Summary and Explanation). Thus,
rather than diverting OSHA’s resources
from higher priority issues, OSHA has
determined that the data collected and
published under this rule will help
OSHA use its limited resources more
effectively to protect workers.
d. OSHA’s Capacity To Collect and
Process the Data From Forms 300 and
301
The preamble to the 2019 final rule
cited the costs of building the data
collection system and processing the
data from Forms 300 and 301 as one
reason OSHA was rescinding some of
the 2016 rule’s data submission
requirements (84 FR 389). As discussed
throughout this preamble, in the NPRM
to this rulemaking, OSHA found that the
reasons given in the preamble to the
2019 final rule for the removal of the
300 and 301 data submission
requirement are no longer compelling
(87 FR 18538).
As to the collection of the data, OSHA
(and more broadly, the Department of
Labor) has the technical capacity to
build the necessary data collection
system. OSHA’s ability is supported by
its success in building and utilizing the
system to collect data from
establishments’ Forms 300A. Since
2017, the ITA has collected submissions
of Form 300A from roughly 300,000
establishments per year. In addition,
OSHA’s ability to build such a system
is supported by the fact that other
Department of Labor agencies, i.e., BLS
and MSHA, successfully built and are
utilizing similar collection systems (see,
e.g., Docket ID 0079). BLS’s system, in
particular, is illustrative of the
Department’s ability to create and
utilize such systems: each year, the BLS
Survey of Injuries and Illnesses (SOII)
collects the same case-specific
information, from the same OSHA
records, from roughly 200,000
employers, nearly 150,000 more
submitters than will provide data to
OSHA under this final rule. NIOSH also
effectively built and is using a similar
system (Docket IDs 0035, Attachment 2,
0079). Based upon this information, it is
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
reasonable to anticipate that OSHA will
have the technical capacity to collect
the case-specific submissions. OSHA
discusses the costs to build the data
collection system in Section IV, Final
Economic Analysis.
As to data processing, the preamble to
the 2019 rule does not specifically
explain what is included in the
‘‘processing’’ of data; however, the
discussion included a comment from
NIOSH ‘‘offering to help with data
analysis’’ and ‘‘not[ing] that it has
already developed auto-coding methods
for categorizing occupation and industry
based on free text data and has
successfully utilized similar free text
data collected from workers’
compensation claims’’ (84 FR 389,
referencing Document ID 2003–A2). As
explained in the NPRM for the current
rulemaking, the agency preliminarily
found that these concerns about
‘‘processing’’ costs were no longer
compelling, due to technological
developments in automated data coding
for text-based fields that have made it
easier and more cost-effective for OSHA
to efficiently use electronically
submitted, establishment-specific, casespecific injury and illness data. As
discussed below, coding data is helpful
for characterizing, analyzing, and
making use of large amounts of textbased information.
In the preamble to the proposed rule,
OSHA declared an intention to use
automated systems to assign
standardized codes based on the
information contained in the text fields
(e.g., type of accident is ‘‘fall’’) to
categorize and more efficiently use the
data (87 FR 18540). This standardized,
automated coding of information from
text fields in Forms 300 and 301 is
already being done by BLS. As
explained in the preamble to the
proposed rule, in 2018, after the
beginning of the previous rulemaking
process, BLS switched to an autocoding
system that uses deep neural networks
(87 FR 18541). This system
outperformed the alternatives across all
coding tasks and made an average of
24% fewer errors than the logistic
regression autocoders, and an estimated
39% fewer errors than the manual
coding process.13 OSHA explained in
the preamble that, by 2019, according to
BLS, ‘‘automatic coding had been
expanded to include all six primary
coding tasks (occupation, nature, part,
source, secondary source, and event),
with the model assigning approximately
13 See ‘‘Deep neural networks for worker injury
autocoding’’, Alexander Measure, U.S. Bureau of
Labor Statistics, draft as of 9/18/2017 (Ex. 96).
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
85% of these codes.’’ 14 OSHA asked for
public comment on the issue of
automated coding of text-field data and
other available technology that would
enable OSHA to automatically code
these data and also specifically asked,
‘‘In addition to the automated methods
for coding text-based data discussed
above, what additional automated
methods exist to code text-based data?’’
(87 FR 18547).
In response, NIOSH commented, that
it ‘‘collects occupational injury data
from a national probability sample of
emergency departments.’’ It further
explained: ‘‘These data are collected
through the occupational supplement to
the National Electronic Injury
Surveillance System (NEISS-Work)
[NIOSH 2022a]. Beginning with the
2018 NEISS-Workdata, injury event or
exposure and source codes from the BLS
Occupational Injury and Illness
Classification System (OIICS) Version
2.01 were assigned through a machine
learning algorithm with manual quality
control efforts.’’ (Docket ID 0035).
NIOSH clarified that the machine
learning algorithm ‘‘relies mostly on the
information in the narrative injury
incident description field.’’ Further,
NIOSH explained that it ‘‘has continued
to enhance [its] machine learning
process using more technologically
advanced approaches, including
incorporating additional quantitative
variables, which has increased the
coding accuracy and further reduced the
need for manual coding.’’ It also noted
that it recently collaborated with a
partner university to develop a machine
learning algorithm that assigns Bureau
of Census industry codes based on the
narrative fields of employer name and
business type (Docket ID 0035).
Similarly, the Strategic Organizing
Center (SOC) referenced the work that
BLS has done, stating that BLS ‘‘faced
a problem of similar magnitude when
constructing the addition to the Annual
Survey of Occupational Injuries and
Illnesses in the early 1990’s—the
Detailed Case and Demographic series,
based on its sampling of the exact same
data types from employers Form 301’s’’
and it ‘‘developed and refined the
Occupational Injury and Illness Coding
System (OIICS).’’ SOC extolled BLS’s
system: ‘‘[t]his system is now
successfully used annually to code all
those cases, with extraordinary benefits
for all parties interested in both the BLS
survey and the underlying data from the
employer sources themselves’’ (Docket
ID 0079).
14 See https://www.bls.gov/iif/automated-coding/
deep-neural-networks.pdf.
PO 00000
Frm 00059
Fmt 4701
Sfmt 4700
47311
In contrast, AIHA commented,
‘‘Automated methods to analyze textbased responses are very difficult to
develop due to the variation of words
and writing styles used around the
United States. It would be more cost
effective to expand the use of
checkboxes and radio buttons to assist
in interpreting and extracting data from
text responses.’’ (Docket ID 0030).
Similarly, the U.S. Poultry and Egg
Association commented, ‘‘the idea that
OSHA will assess the OSHA 301’s is
unrealistic. The amount of data from the
OSHA 301 will be massive and the
answers for most questions are not
standardized’’ (Docket ID 0053).
The Phylmar Regulatory Roundtable
also expressed doubts about OSHA’s
ability to process the data it would
receive pursuant to the proposed rule,
commenting that, ‘‘[t]he amount of
information and data points that this
regulation will produce is exponentially
larger than what OSHA currently
collects from Form 300A alone.’’ It
added that ‘‘[i]t is also not clear
whether, despite the use of technology
such as AI or deep learning models to
process and interpret the data, OSHA
has the resources in place to
constructively utilize the information.’’
PRR estimated that OSHA would
receive ‘‘1,065,363’’ documents if the
proposed rule was promulgated, a
number which PRR claimed is ‘‘3 times
more than the number of documents
OSHA has experience working with’’
(Docket ID 0094).
The Employers E-Recordkeeping
Coalition (Coalition) similarly expressed
concerns with OSHA’s plans, arguing
that ‘‘[t]he proposed use of an
automated system to assign
standardized codes based on text
identified in the 300 and 301 forms is
unrealistic.’’ Specifically, the Coalition
doubted that a system which relies on
keyword searches would be helpful
because ‘‘[they] are literal in the sense
that computers find terms wherever
they appear—even if part of a larger
phrase or used in a different context.
Words often have multiple meanings, so
keyword searches tend to return
irrelevant results (false positives),
failing to disambiguate unstructured
text.’’ The Coalition added that such
‘‘searches also may fail to identify
useful information that does not use the
express search terms (false negatives).’’
Further, it noted, ‘‘OSHA’s proposed
use depends on employers typing words
without spelling errors, abbreviated text,
or industry-specific language, acronyms
or codes that are not encapsulated in a
word search. Under these conditions,
OSHA would miss mountains of
pertinent information, be flooded by
E:\FR\FM\21JYR2.SGM
21JYR2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
irrelevant information, and, in our view,
simply would not effectively identify
workplaces that should be targeted for
enforcement.’’ The Coalition concluded:
‘‘[a]n accurate analysis of employer 300
and 301 information requires
individualized analyses by real
people—not IT systems using word
searches’’ (Docket ID 0087; see also
Docket ID 0076).
In response, OSHA notes that no
coding system, including manual
coding, is 100% accurate. However, as
discussed in the preamble to the
proposed rule, a system to collect and
autocode text-based data from OSHA
Forms 300 and 301 already exists, and
BLS is effectively using it (see, e.g.,
Docket ID 0102 15). In fact, BLS
continues to expand use of autocoding,
explaining that ‘‘For survey year 2020,
all cases mentioning ‘covid’ or ‘corona’
were manually coded due to their novel
nature and prevalence, dropping the
percentage of cases autocoded. Since
then, COVID–19 cases were integrated
into the autocoder training process,
allowing for the automated coding of
approximately 92 percent of codes for
survey year 2021. Starting with survey
year 2021, BLS expanded collection of
case data from all sampled
establishments to include details for
cases involving days of job transfer or
restriction only. Previously BLS
collected complete details only for cases
involving days away from work.
Biennial estimates of detailed case
circumstances for cases involving days
away from work, job transfer, or
restriction covering survey years 2021–
2022 will first be published in the fall
of 2023.’’ 16 Chart 1, below, illustrates
the SOII autocoder performance for data
collected annually.
NIOSH also currently has the
capability to accurately autocode textbased data related to occupational
injuries and illnesses. OSHA is
continuing discussions with BLS and
NIOSH about adopting and/or
modifying their autocoding source code
to create a pilot system where the
autocoding of OSHA data collected by
OSHA could be tested and compared to
manual coding of the same data. Upon
successful testing and adoption of the
autocoding system, OSHA plans to
consult and work with BLS, NIOSH, and
other agencies with experience
autocoding text-based occupational
safety and health data for long-term
system maintenance to continuously
update the neural network code and
refine automation of the data. Until the
autocoding system has been tested and
is in place, OSHA intends to only use
and publish uncoded data. Both
uncoded and coded data can be useful
for OSHA, as well as researchers,
employers, and employees.
Once the data are coded, OSHA
expects to use the data similarly to how
the agency currently uses coded data
from the Severe Injury Reporting (SIR)
program (see Docket ID 0005 for an
example of a search interface for the
data that will be collected under this
final rule). OSHA also intends to
combine the coded data with other data
sources (e.g., inspection data or SIR
data) to increase the utility of the data
for both the agency as well as other
users (e.g., employers, employees,
researchers, and the public). The
specific estimated cost burden on OSHA
and employers for data collection and
processing is discussed in Section IV,
Final Economic Analysis, below.
15 Measure, Alexander. ‘‘Six Years of Machine
Learning in the Bureau of Labor Statistics.’’
Advances in Business Statistics, Methods and Data
Collection, Jan. 2023, pp. 561–72.
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
PO 00000
Frm 00060
Fmt 4701
Sfmt 4700
e. Data Submission
In the preamble to the proposed rule,
OSHA also asked the following two
questions related to helping employers
meet the requirements of the proposed
rule:
• Are there electronic interface
features that would help users
electronically submit part 1904 data,
particularly for case data from the
OSHA Form 300 and Form 301 and for
16 https://www.bls.gov/iif/automated-coding.htm.
E:\FR\FM\21JYR2.SGM
21JYR2
ER21JY23.000
ddrumheller on DSK120RN23PROD with RULES2
47312
ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
establishments that submit using batch
files? For example, would it be helpful
for OSHA to provide a forms package or
software application that exports the
required files into a submission-ready
format?
• What features could OSHA provide
to help establishments determine which
submission requirements apply to their
establishment?
OSHA received a number of
comments related to these questions.
Electric Boat commented that their
company currently uses proprietary
recordkeeping software to compile
injury and illness data. Data from the
Form 300A is then manually entered in
order to submit it to OSHA. Electric
Boat asked how OSHA will require data
on the Forms 300 and 301 to be
submitted and noted that manually
entering data for each case would be
difficult, costly, and could result in
errors in the submitted data. The
company asked for ‘‘clarification on the
method of submission and whether or
not scanned versions or PDF uploads of
the forms would be an acceptable means
of submission’’ (Docket ID 0028).
The Sheet Metal and Air Conditioning
Contractors’ National Association
expressed concern about being required
to use OSHA-provided software on their
systems, alleging that this would require
additional resources for familiarization
with the software and that it could
create potential cyberliability claims for
their member companies (Docket ID
0046). On the other hand, AIHA urged
OSHA to ‘‘consider providing software
with recordkeeping logic to enable the
completion of data forms and automatic
generation of logs for posting and
reporting. . . . Employers struggle with
interpreting recordkeeping
requirements, and a user interface could
include interpretation logic as well as
assist in paperwork completion’’
(Docket ID 0030). The AFL–CIO
similarly stated that it would be useful
for OSHA to provide basic software for
‘‘injury and illness recordkeeping from
which the data can be easily uploaded/
reported to OSHA through a secure
website as OSHA envisions’’ (Docket ID
OSHA–2013–0023–1350, Attachment 2).
And Cal/OSHA ‘‘encourage[d] the
design of a data submission system that
is compatible with other existing
electronic systems used to track and
report establishment-specific injury and
illness data’’ (Docket ID 0084).
For the expanded data collection
under this final rule, OSHA plans to
continue to enable three methods of
data submission: manual data entry,
batch file, and API. In manual data
entry, the user enters the data into a web
form and then submits the web form. In
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
batch file submission, the user uploads
a csv file (a delimited text file in which
commas separate the values). In API
(application programming interface), the
user uses a software program that
communicates directly with OSHA’s
data collection program. In response to
Cal/OSHA’s comment, OSHA notes that
the API submission method is
compatible with other existing
electronic systems used to track and
report injury and illness data. In
addition, OSHA intends to continue to
require electronic submission of the
recordkeeping data, i.e., OSHA will not
permit the uploading of scanned
documents or pdfs.
None of the data submission methods
described above require establishments
to use OSHA-provided software on their
systems. Indeed, OSHA has never
provided, and does not intend to require
employers to use, OSHA-developed
software for data submission. OSHA,
however, is aware that some
employers—particularly small
employers—might find OSHA-provided
software useful for data submission, as
reflected in the comments from the
AIHA and the AFL–CIO. OSHA will
therefore consider developing and
providing such software in the future;
however, use of such software would
not be required and the other data
submission options would remain
available. Regardless of whether OSHA
decides to provide such software, OSHA
expects that developers of proprietary
recordkeeping software will expand
their applications that enable automated
electronic submission of the required
information from the OSHA Form 300A
to also include submission of
information from the Forms 300 and
301; this is further discussed in the
Final Economic Analysis, below.
AIHA noted that ‘‘Built-in error
checks for key data problems would be
helpful,’’ stating that the usefulness of
the online data could be affected by
errors in submissions: ‘‘For example, the
2020 data for NAICS codes in the
331500 industry series contain five
entries with more than 150,000 hours
worked per employee. In one case, an
employer with 150 employees reported
working 24 million hours. On the other
hand, there were a couple of anomalies
in the opposite direction, including an
employer with 27 employees who
reported a total of only 40 hours worked
for the entire year, less than two hours
per employee. The result of these
obvious errors is that the average hours
for the industry were 3,713 per worker,
almost double the expected
number. . . . OSHA should consider
adding some editing features that would
PO 00000
Frm 00061
Fmt 4701
Sfmt 4700
47313
highlight potential errors.’’ (Docket ID
0030).
In response, OSHA notes that the
Injury Tracking Application (ITA)
already contains built-in edits that warn
users of potential data errors, including
warnings about too many or too few
hours worked per employee. However,
OSHA decided to allow the user to
bypass the warning in order to avoid
discouraging or prohibiting the user
from meeting their reporting obligations.
Each year, OSHA follows up with users
who submitted questionable data by
informing them of the potential errors
and providing step-by-step guidance on
how to correct the error. OSHA
encourages data corrections, but does
not require them. This follow-up
process is limited to establishments
under Federal OSHA jurisdiction.
OSHA anticipates incorporating similar
built-in edits into the expanded ITA for
collection of Form 300/301 information
in order to warn users of potential errors
in their submissions; the agency,
however, does not intend to prevent
users from submitting their information
if they bypass the warning.
On a related topic, the Coalition for
Workplace Safety (CWS) requested that
OSHA ‘‘establish clear procedures for
employers to make corrections to
already-submitted data, and improve
internal processes to ensure those
corrections are reflected in the publicly
posted data’’ because ‘‘[c]urrently, upon
notice from an employer of a required
correction, it takes months for OSHA to
make these corrections online’’ (Docket
ID 0058). OSHA notes that these
comments seem to reflect a
misunderstanding of the process for
correcting injury and illness information
that has already been submitted. For
changes to data for the current
collection year, the Injury Tracking
Application allows respondents to edit
their already submitted data, and those
changes take place immediately within
the application. To make the data
publicly available, OSHA posts each
year’s data on its public website three
times: (1) an initial file is posted in
April of the collection year; (2) an
updated file is posted in September of
the collection year; and (3) a final file
is posted in the beginning of the
following year. Users may also make
requests for changes to previous years
via the Help Request Form on the
Frequently Asked Questions page for
the Injury Tracking Application (https://
www.osha.gov/injuryreporting/ita/helprequest-form). During the six years
OSHA has been collecting information
from the Form 300A, OSHA is aware of
only one request to change the data for
an establishment in the publicly posted
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
47314
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
file. That change was made within days,
and a revised file was posted. Because
this system has been working so far to
incorporate changes made to alreadysubmitted data, OSHA intends to
continue to follow these procedures for
correcting and posting updated data.
More generally, the NSC
recommended that OSHA develop tools
and resources to help employers
understand the forms and questions,
‘‘which could include a mentoring
program allowing for larger, more
sophisticated employers to assist small
and mid-sized businesses with
reporting’’ (Docket ID 0041). While
OSHA certainly does intend to develop
additional tools and resources to enable
employers to comply with the final rule,
it does not currently have plans to
develop such a mentoring program.
However, OSHA encourages
collaboration between regulated entities,
whether as part of industry associations,
union efforts, or the type of
collaboration mentioned by NSC. In
addition, OSHA notes that the
compliance assistance materials the
agency will offer could be used as part
of such collaborative efforts.
Regarding the means of determining
an establishment’s NAICS codes and
number of employees, NIOSH
recommended that employers use, as a
starting point, the NAICS and employee
counts that are reported quarterly, on a
per-establishment basis, to their State
workforce agencies. NIOSH noted that
these reports are submitted as part of
their unemployment insurance (UI)
filings and/or as part of the Quarterly
Census of Employment and Wages
(QCEW), a Federal-State partnership
(Docket ID 0035). In addition, NIOSH
suggested that ‘‘a single summary
‘lookup’ table be provided to make it
easy to simply look up any industry and
see the requirements for form
submission by establishment size.’’
Furthermore, NIOSH suggested that
OSHA could provide a table or tables
that would include different generations
of NAICS codes, to account for the fact
that different employers will be using
NAICS codes from different years.
(Docket ID 0035, Attachment 2).
In response, OSHA agrees with
NIOSH that it would be appropriate for
employers to use the reports they make
to State workforce agencies as a starting
point for determining their NAICS and
employee numbers. OSHA also concurs
that a look-up table by industry and
establishment size could help
establishments determine whether and
how they are affected by the data
submission requirements. The agency
currently has a look-up app at https://
www.osha.gov/itareportapp to help
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
employers determine if their
establishment is required to submit
300A data to OSHA, based on State
location, peak employment in the
previous year, whether the
establishment is a government facility,
and the establishment’s NAICS code.
The agency plans to modify the app to
cover the new requirements before they
become effective.
Finally, OSHA asked the following
question in the proposal about requiring
versus allowing establishments that
already have accounts in the ITA to
update their accounts to the 2022
NAICS: ‘‘Going forward, OSHA intends
to use the 2022 NAICS in the ITA for
establishments that are newly creating
accounts. However, for establishments
that already have accounts in the ITA,
the version of NAICS used is the 2012
NAICS. BLS anticipates that
establishments that already have
accounts in the ITA, are also subject to
the SOII, and have 2022 NAICS codes
that are different from their 2012 NAICS
codes, would be unable to use the datasharing feature . . . to prefill their BLS
SOII submission with data already
submitted through the OSHA ITA,
unless these establishments updated
their accounts to revise their industry
classification from the 2012 NAICS to
the 2022 NAICS. What are the
advantages and disadvantages of
requiring establishments that already
have accounts in the ITA to update their
accounts to the 2022 NAICS? How much
time would an establishment require to
determine whether their 2022 NAICS is
different from their 2012 NAICS? How
much time would an establishment
require to edit their NAICS code in the
ITA to reflect any changes?’’ (87 FR
18547).
In response to this question, NIOSH
expressed a preference for all users to
update their NAICS codes to the 2022
version in the OSHA ITA: ‘‘As potential
end users of the data, NIOSH believes
the use of multiple NAICS code
schemes will require extra work to
analyze the data and increase the
potential for errors during data entry
and data analysis because the codes
often change between versions. . . . For
end users who are interested in
analyzing the submitted data, the first
step will be to crosswalk the codes
across the various coding schemes,
mapping old codes to new codes so that
a single coding scheme can be used.
Depending on the changes from version
to version, crosswalking codes is often
a tedious, time-consuming task and can
potentially introduce error when the
crosswalked categories are not the same
or certain codes cannot be easily
PO 00000
Frm 00062
Fmt 4701
Sfmt 4700
crosswalked.’’ (Docket ID 0035,
Attachment 2).
CWS also commented on the issue of
updating NAICS codes in the OSHA
ITA: ‘‘OSHA also states that
establishments creating new accounts
within the Injury Tracking Application
(‘‘ITA’’) that OSHA uses for data
submission will be identified using
2022 NAICS codes, while
establishments with existing ITA
accounts will continue to be identified
by the 2017 NAICS code. These
inconsistencies will cause confusion for
employers, may require employers to
keep multiple sets of records, and may
result in either over- or underreporting.’’ (Docket ID 0058).
OSHA has decided to allow, but not
require, employers that already have
accounts in the ITA to update the
NAICS for their establishments to the
2022 codes. OSHA understands
NIOSH’s concern about the timeconsuming and potentially inaccurate
process of using crosswalks to convert
from 2012 NAICS to 2022 NAICS when
using the data for research purposes.
However, the same concern applies to
individual establishments using a
crosswalk to update their NAICS. In
fact, end users of the data may have
more experience with NAICS and
crosswalk use than those submitting
data. OSHA has therefore determined
not to burden establishments that
already have accounts in the ITA with
a requirement to update their NAICS
codes from 2012 NAICS to 2022 NAICS.
Establishments will have the option to
update, but the update will not be
required. Establishments that want to
take advantage of the data-sharing
feature to prefill their BLS SOII
submission with data submitted to
OSHA will, therefore, be able to use that
feature if they update their NAICS.
In response to CWS comment, OSHA
notes that establishments creating new
accounts in the ITA choose their NAICS
from a pull-down menu of NAICS
codes; with an update optional but not
required, the only difference under this
final rule will be that the pull-down
menu will be loaded with 2022 NAICS
codes instead of 2012 NAICS codes. (No
accounts in the ITA use the 2017 codes,
as the Coalition mistakenly stated in its
comment). Establishments that already
have accounts in the ITA will not have
to do anything with respect to their
NAICS codes. It is not clear to OSHA
why this would cause confusion for
employers, require employers to keep
multiple sets of records, or result in
over- or under-reporting. And, even if it
did, an employer could simply choose
to update their NAICS code in the ITA.
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
f. Tools To Make the Collected Data
From Forms 300 and 301 More Useful
In the preamble to the proposed rule,
OSHA also asked for comment about
tools that would make the published
data more available and useful to
interested parties (including employers,
employees, job-seekers, customers,
researchers, workplace safety
consultants, and the general public) (87
FR 18543). Several commenters
provided suggestions for ways to make
published data more useful to interested
parties. NIOSH’s primary concern was
that ‘‘some data users might draw
unwarranted conclusions about the
overall safety record of establishments
or employers when the numbers of
employees and injuries are low.’’ To
prevent misinterpretation, NIOSH
suggested that ‘‘OSHA could publish
statistical estimates of the extent to
which an observed injury rate for an
individual industry or establishment is
predictive of future injury rates, or the
extent to which any such injury rate
reflects the underlying risk of injury.’’
NIOSH also commented that to address
potential inaccuracies in OIICS codes
and ‘‘increase data users’ understanding
of the degree of reliability of the coding,
OSHA may consider posting or making
available the probabilities of code
accuracy that are generated by the
autocoding system, both on the
individual injury case level and the
aggregate level’’ (Docket ID 0035).
Additionally, Unidos U.S.,
Farmworker Justice, and Texas
RioGrande Legal Aid suggested that
OSHA ‘‘publish the data in a way that
is accessible, searchable, and sortable
using a greater level of detail than is
currently available’’ and make the data
‘‘available in a way that allows the
public to search for injuries and deaths
among workers in specific industries—
including by six-digit NAICS codes’’
and to ‘‘refine that data by type of
hazard down to the most detailed
subcategories of event, exposure, or
source, and then to sort by other
relevant fields such as location,
employer, race, and ethnicity’’ (Docket
ID 0078). Additionally, the commenters
suggested that OSHA make the data
available in multiple languages,
including Spanish, to ‘‘ensure that
Spanish-speaking Latinos themselves
have access to the information’’ (Docket
ID 0078).
The International Brotherhood of
Teamsters suggested that OSHA
‘‘develop tools and resources within its
website, especially where data is to be
downloaded, that would allow better
user interface and help users
understand what they are looking at and
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
what conclusions to draw,’’ such as
providing more information on Total
Case Rate (TCR), and Days Away
Restricted or Transferred (DART) rates
(Docket ID 0083).
OSHA will take these comments into
consideration when designing tools and
applications to make the published data
more available and useful to interested
parties. As discussed above, there are
considerable potential benefits to
occupational safety and health resulting
from publishing the collected data, and
the easier it is for all interested parties
to access and use the published data,
the more these benefits will be realized.
C. Section 1904.41(b)(1)
Section 1904.41(b)(1) of the final rule
includes clarifying information on the
injury and illness record submission
requirements for establishments of
various sizes that are contained in final
§ 1904.41(a)(1) and (2). The information,
like many of the provisions in part 1904,
is conveyed in question-and-answer
format. The final provision addresses
the question of whether every employer
has to routinely make an annual
electronic submission of information
from part 1904 injury and illness
recordkeeping forms to OSHA. The
answer clarifies that not every employer
has to routinely submit this data, and
that, in fact, only three categories of
employers must routinely submit
information from these forms. The
answer then describes the three
categories of employers and the
information they must submit. The first
category is establishments that had 20–
249 employees at any time during the
previous calendar year, and are
classified in an industry listed in
appendix A. Establishments in this
category must submit the required
information from Form 300A to OSHA
once a year. The second category is
establishments that had 250 or more
employees at any time during the
previous calendar year, and are required
by part 1904 to keep records.
Establishments in this second category
must also submit the required
information from Form 300A to OSHA
once a year. The third category is
establishments that had 100 or more
employees at any time during the
previous calendar year, and are
classified in an industry listed in
appendix B. Establishments in this
category must submit the required
information from Forms 300 and 301 to
OSHA once a year, in addition to the
required information from Form 300A.
The answer in § 1904.41(b)(1) also
specifies that employers in these three
categories have to submit the required
information by the date listed in
PO 00000
Frm 00063
Fmt 4701
Sfmt 4700
47315
§ 1904.41(c) of the year after the
calendar year covered by the form.
Since the date in paragraph (c) is March
2, that means that, for example,
employers must submit the required
information covering calendar year 2023
by March 2, 2024. Finally, the answer
clarifies that establishments that are not
in any of the three categories must
submit information to OSHA only if
OSHA notifies that establishment that it
must do so for an individual data
collection.
Proposed § 1904.41(b)(1) would have
provided employers with further clarity
on which employers and establishments
needed to submit data under proposed
§ 1904.41(a)(1) and (2) and how the
requirements of those provisions
interacted with each other. These
proposed provisions, like the final
provision, were written in question-andanswer format to help employers easily
identify the information they seek.
Proposed § 1904.41(b)(1)(i) reiterated
the question posed in the previous
version of § 1904.41(b), which asked
whether every employer has to routinely
make an annual electronic submission
of information from part 1904 injury
and illness recordkeeping forms to
OSHA. The proposed answer was
updated to be consistent with the
requirements in proposed
§ 1904.41(a)(1) and (2). Proposed
§ 1904.41(b)(1)(ii) would have clarified
that an establishment that has 100 or
more employees, and is in an industry
included in both appendix A and
appendix B, need only make one
submission of the OSHA Form 300A in
order to fulfill the requirements of both
proposed § 1904.41(a)(1) and (2).
OSHA welcomed public comment on
proposed § 1904.41(b)(1)(i) and (ii),
including on whether the proposed
provisions appropriately clarified the
proposed requirements for employers.
OSHA did not receive any comments
specifically related to the text of
proposed § 1904.41(b)(1), and the
agency has addressed comments related
to the substantive submission
requirements in § 1904.41(a)(1) and (2),
above. Therefore, OSHA has decided to
finalize § 1904.41(b)(1) with changes
from the proposal to reflect the revised
structure of final § 1904.41(a)(1) and (2).
Final § 1904.41(b)(1) therefore describes
three categories of establishments that
are required to submit information
under the final rule, as opposed to the
two categories described in proposed
§ 1904.41(b)(1)(i). The three categories
are: (1) establishments with 20–249
employees in industries on appendix A
that are required to submit information
from their Form 300A under final
§ 1904.41(a)(1)(i); (2) establishments
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
47316
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
with 250 or more employees that are
required to keep records under part
1904 and are required to submit
information from their Form 300A
under final § 1904.41(a)(1)(ii); and (3)
establishments with 100 or more
employees in industries on appendix B
that are required to submit information
from their OSHA Forms 300 and 301.
Similar to the proposal, the remainder
of final § 1904.41(b)(1) notes that
employers with establishments falling
into any of these three categories must
submit the required information by the
date listed in paragraph (c) of this
section of the year after the calendar
year covered by the form. The example
given in the final regulatory text—which
specifies that submission for 2023 forms
must occur in 2024—has been updated
to reflect the first year OSHA anticipates
employers having to submit information
under this final rule. Finally, the
provision specifies that if an
establishment is not in any of the three
specified categories, the employer must
submit information to OSHA only if
OSHA notifies the employer to do so for
an individual data collection. OSHA
anticipates that final § 1904.41(b)(1),
along with the additional compliance
information the agency intends to issue,
will assist employers in determining
their compliance responsibilities under
the final rule.
Proposed § 1904.41(b)(1)(ii) has not
been included in the final rule; it is no
longer necessary due to the
restructuring of the final regulation. As
discussed above, final § 1904.41(a)(1)
relates only to the OSHA Form 300A,
and final § 1904.41(a)(2) relates only to
the OSHA Forms 300 and 301. This
restructuring is expected to eliminate
any confusion regarding whether an
establishment might be required to
submit information from its Form 300A
twice. Therefore, there is only one
question under final § 1904.41(b)(1), as
opposed to the two that were proposed.
One commenter requested additional
guidance related to how the submission
requirements will work. S.W. Anderson
Company asked for clearer guidance for
companies in designated industries that
have 100 employees across multiple
sites. The company stated that ‘‘we have
just reached the 100-employee
threshold. We have previously only
submitted electronically the OSHA
300A for our company headquarters
since we have more than 20 employees.
Our other locations all have less than 20
employees’’ (Docket ID 0008).
In response, OSHA clarifies that this
final rule does not affect how employees
are counted for recordkeeping or
information submission purposes under
part 1904. As OSHA states in reporting
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
requirement FAQs on the agency’s
Injury Tracking Application website
(https://www.osha.gov/injuryreporting),
OSHA’s electronic reporting
requirements are based on the size of
the establishment, not the firm. An
establishment is a single physical
location where business is conducted or
where services or industrial operations
are performed (see 29 CFR 1904.46).
Therefore, under the facts described by
this commenter, if the firm has only one
establishment (the company’s
headquarters) with more than 20
employees, that is the only
establishment for which the commenter
might need to submit injury and illness
information. That single establishment
would have to submit the required
information from its Form 300A under
final § 1904.41(a)(1)(i) if the
establishment falls under a NAICS code
listed in appendix A. The company
would not, however, have to submit
information from its Form 300 or 301 for
that establishment, regardless of NAICS,
because the establishment does not have
at least 100 employees. More generally,
OSHA plans to revise and expand the
FAQs on its recordkeeping website as
part of its compliance efforts related to
this final rule.
D. Section 1904.41(b)(9)
Section 1904.41(b)(9) of the final rule
specifies which information employers
must submit from the OSHA Forms 300
and 301. Final § 1904.41(b)(9) asks and
answers the following question: If I have
to submit information under paragraph
(a)(2) of this section, do I have to submit
all of the information from the
recordkeeping forms? Paragraph (a)(2)
contains the submission requirements
for information from the OSHA Forms
300 and 301.
The answer in the final rule is no,
employers who have to submit
information under paragraph (a)(2) of
this section must submit all the
information from the OSHA Forms 300
and 301 except for the following casespecific information:
• Employee name (column B), from
the Log of Work-Related Injuries and
Illnesses (OSHA Form 300).
• Employee name (field 1), employee
address (field 2), name of physician or
other health care professional (field 6),
and facility name and address if
treatment was given away from the
worksite (field 7) from the Injury and
Illness Incident Report (OSHA Form
301).
Proposed § 1904.41(b)(9) was the
same as final § 1904.41(b)(9). In the
preamble to the proposed rule, OSHA
explained that collecting data from
these fields would not add to OSHA’s
PO 00000
Frm 00064
Fmt 4701
Sfmt 4700
ability to identify establishments with
specific hazards or elevated injury and
illness rates. Therefore, OSHA proposed
excluding these fields from the
submittal requirements to minimize any
potential release or unauthorized access
to any PII contained in those fields.
Because the data collection would not
include the information from these
fields, there would be no risk of public
disclosure of the information from these
fields through the data collection.
OSHA requested comment on all
aspects of proposed § 1904.41(b)(9),
including whether the proposed
specified fields should be excluded
from data that would be collected, and
whether other data should be similarly
excluded to protect employee privacy or
for other reasons. OSHA also asked
more specific questions, as addressed
below.
1. Collecting Employee Names
In the preamble to the proposed rule,
OSHA specifically asked the following
question about collecting employee
names, in the context of data-sharing
between OSHA and BLS: ‘‘OSHA is
proposing not to collect employee
names under proposed § 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 § 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
feature for Form 300 and 301
submissions? (Please note that OSHA
would not intend to publish employee
names.)’’ (87 FR 18547).
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
In response, OSHA received multiple
comments about the desirability of datasharing between BLS and OSHA, but
there were no comments supporting the
collection of employee names. In fact, as
discussed in more detail above in this
preamble, numerous commenters
expressed concerns about worker
privacy and advocated that employee
names be excluded from the data
submission.
The Coalition for Workplace Safety
commented in support of data-sharing,
‘‘Employers who submit data to OSHA
should not be required to separately
submit the same data to BLS. These
duplicative reporting requirements are
unacceptable, and OSHA’s current
proposal only serves to exacerbate this
existing problem’’ (Docket ID 0058).
Similarly, the National Association of
Manufacturers commented that it would
be in the best interest of OSHA and
manufacturers for OSHA to gather
detailed information about workplace
injuries and illnesses ‘‘in conjunction
with the BLS SOII survey rather than in
a separate data collection process’’
(Docket ID 0068). However, the
Coalition for Workplace Safety and the
National Association of Manufacturers
also expressed great concern in their
comments that collection of casespecific information from the Form 300
and Form 301 would risk employee
privacy.
Other commenters also expressed
support for data-sharing without
expressing support for collection of
employee names. For example, the
American College of Occupational and
Environmental Medicine commented in
support of avoiding duplicate reporting
and encouraged streamlining and
simplifying the importation of data from
OSHA to SOII (Docket ID 0037).
Similarly, the National Safety Council
commented, ‘‘OSHA and BLS should
continue their collaboration to enable
more businesses to benefit from single
reporting and make reporting easier’’
(Docket ID 0041).
Having reviewed the comments on
this issue as well as the comments on
employee privacy described in more
detail elsewhere in this preamble,
OSHA has decided not to collect
employee names under final
§ 1904.41(a)(2) and (b)(9). This decision
is consistent with worker privacy
concerns expressed in a number of
public comments during this
rulemaking and discussed elsewhere in
this preamble. Not collecting employee
names is, of course, the best way to
ensure that this information does not get
released online. The agency also,
however, recognizes the value in
providing ways to reduce the time and
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
burden for employers that are required
to submit data to both OSHA and BLS.
As such, the agency will continue to
work with BLS to identify and
implement data-sharing methods that do
not require submission of employee
names to OSHA in order to reduce the
burden for the subset of establishments
that are required to submit their Form
300 and 301 data to OSHA and also to
submit data to the BLS SOII.
2. Excluding Other Specified Fields
In addition, in the preamble to the
proposed rule, OSHA welcomed more
general public comment on proposed
§ 1904.41(b)(9), including whether the
proposed specified fields should be
excluded from data that would be
collected, and whether other data
should be similarly excluded to protect
employee privacy or for other reasons
(87 FR 18546). OSHA asked that any
comments suggesting exclusion of other
fields or data from the proposed
submission requirements also address
whether the exclusion of that particular
field or data from collection would
hinder OSHA’s ability to use the
collection to protect employee safety
and health. Exclusion of employee
names is discussed above. Similar to
employee names, there were no
comments arguing that OSHA should
collect the fields listed in proposed
§ 1904.41(b)(9) (i.e., from Form 301
employee address (field 2), name of
physician or other health care
professional (field 6), facility name and
address if treatment was given away
from the worksite (field 7)).
However, there were some
commenters that wanted additional
fields to be excluded. For example, the
Plastics Industry Association
commented that OSHA should not
collect job title, department, gender,
birth date, date of hire, and date of
death to avoid identifying individual
employees, and urged excluding job
titles in particular because there may
only be a small number of employees,
or a single employee, with a job title in
a facility (Docket ID 0086). Other
comments discussed elsewhere in the
preamble also expressed concern that
employees may be identified by the data
fields OSHA intends to make public,
(see, e.g., Docket IDs 0062, 0094). The
Plastics Industry Association also
commented on the possibility that these
data fields could be cross-referenced
with other data available publicly
online, such as social network accounts
like LinkedIn, to identify employees
(Ex. 86). Similarly, R. Savage
commented that ‘‘job title, date of hire,
date of injury, and social media’’ could
be used to identify the injured employee
PO 00000
Frm 00065
Fmt 4701
Sfmt 4700
47317
(Ex. 18). However, other commenters
countered that the detailed data can be
used to improve workplace safety and
health, (see, e.g., Docket IDs 0030, 0079,
0090). The Plastics Industry
Association’s comments did not address
whether the exclusion of these fields
from the collection would hinder
OSHA’s ability to use the collection to
protect employee safety and health.
In response to these concerns and, as
discussed elsewhere in this preamble,
OSHA has determined that the benefits
of collecting the data for improving
safety and health outweigh potential
privacy concerns. Each of these data
variables included in the data collection
gives OSHA the ability to identify
unique hazards. The age of workers is
relevant to indicating increased hazards
for certain age groups. The date of hire
demonstrates when injuries disparately
impact new employees versus more
experienced employees. An injury that
occurs mostly in recent hires may
indicate a greater need for training and
monitoring new employees, while other
illnesses or injuries can occur
predominantly in longer term
employees. Gender is similarly helpful
to indicate workers at higher risk. For
example, women are at a higher risk for
workplace violence. Job titles aid OSHA
in indicating specific jobs with higher
rates of illnesses and injuries. The date
of injury and date of death are also
useful to OSHA for identifying hazards.
For example, certain illnesses may have
a lag time between the date of injury
and the date of death. Other injuries and
illnesses may have a seasonal
component, such as heat illnesses in the
summer.
Further, as part of OSHA’s
determination that the benefits of
collecting and publishing the data
outweigh potential privacy concerns,
the agency emphasizes that it will be
able to adequately protect workers’
information that could reasonably be
expected to identify individuals
directly. OSHA notes that employee
birth dates will not be made available to
OSHA for outreach, enforcement, or
research/analytical purposes.17 Instead,
establishments will enter the birth date,
the system will convert the information
to age, and OSHA will retain the age.
The data from the fields for age
(calculated from date of birth in field 3),
17 Note that, as explained in the Privacy Impact
Assessment (Docket ID 0107), establishments that
submit their data by uploading a csv file (see
III.B.14.e Data Submission) will include the Date of
Birth field in the csv file, and the csv files will be
temporarily stored in a secure, encrypted folder on
the Department’s IT network (see III.B.9 Risk of
cyber attack) for technical support purposes only,
and purged on a regular basis.
E:\FR\FM\21JYR2.SGM
21JYR2
47318
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
ddrumheller on DSK120RN23PROD with RULES2
date hired (field 4), gender (field 5),
whether the employee was treated in an
emergency room (field 8), and whether
the employee was hospitalized
overnight (field 9) will be collected, but
these fields will not be published.
OSHA also notes regarding the date of
death field that deceased individuals do
not have a right to privacy; further,
since January 1, 2015, § 1904.39(a)(1)
has required employers to report the
death or hospitalization or amputation
or lose of an eye of any employee as a
result of a work-related incident within
eight hours of the death, and OSHA
publishes the reports at https://
www.osha.gov/severeinjury, including
narrative information. In addition, as
discussed elsewhere, HIPAA does not
apply.
After consideration of these
comments, OSHA has decided to
exclude the following fields from the
data collection, as proposed:
• Log of Work-Related Injuries and
Illnesses (OSHA Form 300): Employee
name (column B).
• Injury and Illness Incident Report
(OSHA Form 301): Employee name
(field 1), employee address (field 2),
name of physician or other health care
professional (field 6), facility name and
address if treatment was given away
from the worksite (field 7).
E. Section 1904.41(b)(10)
Section 1904.41(b)(10) of the final
rule addresses how establishments
identify themselves in their electronic
recordkeeping submissions. As noted
above, OSHA’s recordkeeping regulation
requires employers to maintain and
report their injury and illness data at the
establishment level. An establishment is
defined as a single physical location
where business is conducted or where
services or industrial operations are
performed (see 29 CFR 1904.46). Part
1904 injury and illness records must be
specific for each individual
establishment. The text of final
§ 1904.41(b)(10) is in question-andanswer format and responds to the
question of whether a company may use
numbers or codes as its establishment
name when submitting data to OSHA.
The answer to the question is yes, a
company may use numbers or codes as
its establishment name. However, the
submission must also include a legal
company name, either as part of the
establishment name or separately as the
company name.
Final § 1904.41(b)(10) is identical to
the proposed provision except for
changing ‘‘company name’’ to ‘‘legal
company name.’’ The final version of
§ 1904.41(b)(10) is intended to address a
problem OSHA identified with the
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
previous rule, which was that the
company name was not required.
Specifically, as OSHA explained in the
preamble of the proposed rule, the ITA
(the data submission portal) includes
two text fields which OSHA uses to
identify each establishment: Company
Name and Establishment Name. The
Establishment Name field is a
mandatory field, and users must provide
a unique Establishment Name for each
establishment associated with their user
account. In contrast, the Company Name
field is an optional field. OSHA’s review
of five years of data electronically
submitted under § 1904.41 showed that
some firms submitted data with codes in
the required Establishment Name field
and nothing in the optional Company
Name field. For example, in the 2020
submissions of 2019 Form 300A data,
users submitted data for more than
18,000 establishments with a code in
the Establishment Name field and no
information in the Company Name field.
The data are considerably less useful
and more difficult for both OSHA and
other interested parties to work with
when establishments have a code in the
Establishment Name field and no
information in the Company Name field.
For example, it is not possible for a data
user to search for data by company for
companies that use codes without
including a company name. In addition,
without the legal company name, OSHA
is unable to determine whether a
particular establishment in that
company met the reporting
requirements.
To address this problem of missing
data under the previous rule, OSHA
proposed a provision to require
employers who use codes for the
Establishment Name to include a legal
company name. The proposed
provision, § 1904.41(b)(10), provided:
‘‘My company uses numbers or codes to
identify our establishments. May I use
numbers or codes as the establishment
name in my submission? Yes, you may
use numbers or codes as the
establishment name. However, the
submission must include the company
name, either as part of the establishment
name or separately as the company
name.’’
The final provision, § 1904.41(b)(10),
states: ‘‘My company uses numbers or
codes to identify our establishments.
May I use numbers or codes as the
establishment name in my submission?
Yes, you may use numbers or codes as
the establishment name. However, the
submission must include the legal
company name, either as part of the
establishment name or separately as the
company name.’’
PO 00000
Frm 00066
Fmt 4701
Sfmt 4700
OSHA changed ‘‘company name’’ to
‘‘legal company name’’ in the final
regulatory text to clarify that the legal
company name should be entered as
opposed to a more generic company
name. For example, ‘‘Company X, LLC’’
would be entered if that is the legal
company name for the establishment,
not ‘‘Company X.’’ This clarification is
consistent with the Summary and
Explanation for proposed
§ 1904.41(b)(10), which stated ‘‘[t]he
submission must include the legal
company name, either as part of the
establishment name or separately as the
company name’’ (87 FR 18523, 18546
(March 30, 2022)). All companies must
enter a legal company name, either as
part of the establishment name field or
the company name field. Users will be
reminded during data submission that
the information about the establishment
must include the company’s legal name,
either in the establishment field or in
the company name field.
OSHA welcomed public comment on
the proposed requirement to submit the
company name, including any
comments on the utility of such a
requirement and how the company
name should be included in an
establishment’s submission (87 FR
18456). The agency received a number
of comments in response to the
comment solicitation on this topic. For
example, Worksafe supported the
proposed requirement to submit both
establishment name and company name
(Docket ID 0063). Similarly, Cal/OSHA
commented, ‘‘The proposed inclusion of
employers’ entity names, which we
support, makes detailed information
usable even when employers use
numbers or codes to identify their
facilities’’ (Docket ID 0084). In their
comment, Seventeen AGs also
supported the requirement, which they
described as ‘‘critical[ ]’’ (Docket ID
0045). The comment further described
the proposal as an improvement to
existing reporting requirements, noting
that the requirement to disclose a legal
name will aid job-seekers in making
informed decisions about the injury and
illness data for a specific employer
(Docket ID 0045).
In contrast, several organizations
argued against requiring a company
name. For example, the National
Propane Gas Association argued that
‘‘any research to evaluate the general
performance or safety of a particular
industry can be investigated on the basis
of industry NAICS code; not company
name’’ (Docket ID 0050). OSHA
recognizes the value of data that is
industry-wide for industry-based
research, but there is additional value
obtained through collecting and
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
publishing company names. OSHA
intends to use the data to engage in
company-specific activities to
effectively address occupational health
and safety issues, and such activities
require the company name.
The Phylmar Regulatory Roundtable
(PRR) also opposed OSHA’s proposed
requirement to include the legal
company name. It explained that it is
concerned ‘‘about OSHA’s, and
particularly the public’s, ability to
remain objective. To alleviate this
concern, PRR recommends OSHA does
not publish this information publicly,
does not collect the company name, and
uses this data for statistical purposes
only’’ (Docket ID 0094). In addition, the
Association of the Wall and Ceiling
Industry also expressed strong
opposition to including the company’s
name, noting its concern ‘‘about
provisions in the proposed rule that
would unintentionally and
unnecessarily harm construction
businesses,’’ such as ‘‘any requirement
that would result in public access to any
affected company’s name and address,
and/or signatory executive’s name and
telephone number’’ (Docket ID 0043).
The National Propane Gas Association
similarly argued that OSHA’s
assessment of the utility of the collected
information did ‘‘not include the
regulated companies because there is no
evaluation of the potential damage by
misunderstanding or misconstruing the
information that is proposed for the
public website’’ (Docket ID 0050). It
further stated that ‘‘[t]he injury and
illness reports do not include
explanations of employees’ conduct,
variations from company policies,
common practices, or comparisons to
indicate positive safety practices, days
without injuries or illnesses, or other
safeguards companies implement’’
(Docket ID 0050).
OSHA understands these
commenters’ concerns. However, as
discussed elsewhere, OSHA notes that it
has published injury and illness data by
company name since 2009, and most
establishments were already submitting
company name under the previous
requirements. Despite this history,
opposing commenters did not provide
any examples of burden or damage
resulting from the publication of
company names, nor is OSHA aware of
any. Moreover, as discussed in more
detail in Section III.G of this Summary
and Explanation, OSHA’s existing Note
to § 1904.0 makes clear that ‘‘[r]ecording
or reporting a work-related injury,
illness, or fatality does not mean that
the employer or employee was at fault,
that an OSHA rule has been violated, or
that the employee is eligible for
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
workers’ compensation or other
benefits.’’ Further, OSHA notes that the
signatory executive’s name and
telephone number will not be collected
or published under the final rule, nor
were they under the previous rule.
Consequently, OSHA does not find
these comments persuasive.
OSHA agrees with comments that
inclusion of the legal company name
will improve workplace safety and
health. The primary purpose of
collecting the company name is to make
the data more useful for OSHA for
activities at the company level, such as
inspection targeting, compliance
outreach, research, and assessment of
company-wide compliance with the
submission requirement. With the
company name included, OSHA will,
for example, be able to identify
company-wide trends of occupational
illnesses or injuries. Additionally,
interested parties may also use company
name data to improve workplace health
and safety or to inform themselves about
the injury and illness records of specific
employers.
One commenter offered an example of
how it used company-specific
information to improve workplace
safety. The Strategic Organizing Center
explained in its comment how it used
the release of the 2020 and 2021 Injury
Tracking Application data to publish
reports on the rate of serious injuries at
a particular company, which was much
higher than the rate at other similar
businesses. After the reports were
published, the company responded by
announcing that safety improvements
were underway. OSHA agrees with this
commenter that ‘‘the availability of
more detailed information, including
names and locations of employers,
allows employers and others to make
more meaningful comparisons’’—and,
as a result, can lead to improvements in
worker safety and health (Docket ID
0079).
After consideration of these
comments, OSHA has decided to
require establishments to submit
company name, as proposed, in order to
aid both OSHA and other interested
parties in using the data more
effectively. Users will be reminded
during data submission that the
information about the establishment
must include the company’s legal name,
either in the establishment field or in
the company name field.
F. Section 1904.41(c)
Section 1904.41(c) of the final rule
requires employers to electronically
submit the required information to
OSHA by March 2 of each year. The
final provision simplifies the regulatory
PO 00000
Frm 00067
Fmt 4701
Sfmt 4700
47319
language in § 1904.41(c)(1)–(2) of the
previous rule concerning the dates by
which establishments must make their
annual submissions. Previously,
§ 1904.41(c)(1) included information for
establishments on what to submit to
OSHA during the phase-in period of the
2016 final rule and the deadlines for
submission during that phase-in period.
That information is no longer relevant
and, thus, OSHA removed it to
streamline the section. The substantive
information already contained in the
previous § 1904.41(c)(1) was
consolidated into § 1904.41(c) of the
final rule. Like previous § 1904.41(c)(2),
§ 1904.41(c) of the final rule requires all
covered establishments to make their
electronic submissions by March 2 of
the year after the calendar year covered
by the form(s). Also, § 1904.41(c) of the
final rule provides an updated example
of that requirement, explaining that the
forms covering calendar year 2023
would be due by March 2, 2024. As the
example indicates, because this final
rule becomes effective on January 1,
2024, OSHA intends for March 2, 2024
to be the first submission deadline for
the new information required to be
submitted under this rule.
The Coalition for Workplace Safety
commented, ‘‘Employers must have
notice of the exact requirements of any
final rule at the beginning of the year for
which collected data will be
submitted.’’ Otherwise, they argued,
employers will not have sufficient
notice and time to adjust their
information collection and review
processes (Docket ID 0058). The Flexible
Packaging Association made a similar
comment (Docket ID 0091). On the other
hand, the AFL–CIO expressed
frustration that the date of the proposed
rule ‘‘already delayed the ability of
OSHA to institute final reporting
requirements . . . until at least 2024’’
(Docket ID 0061).
OSHA does not agree that employers
must have notice of the requirements of
any final rule at the beginning of the
calendar year for which the data will be
submitted. The commenters who made
this assertion cite no official rule or
other legal authority to support it, and
OSHA is not aware of any such rule
regarding calendar years and reporting
requirements. It is OSHA’s position that
it was not necessary for the final rule to
be published before the end of 2022 in
order for OSHA to begin collecting 2023
data in 2024. OSHA anticipates that
employers will have sufficient time
between publication of the final rule in
2023 and the first submission deadline
in 2024 to make any changes to their
submission systems that they determine
should be made. Indeed, the final rule
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
47320
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
does not make any changes to the
recordkeeping requirements for 2023;
employers will continue to record the
same information as they were required
to record before this final rule was
issued.
Both the Flexible Packaging
Association and the Coalition for
Workplace Safety commented that the
changes in the final rule will require
technological changes within and
outside of OSHA that will require
testing for accuracy and effectiveness,
and that OSHA must account for the
time it will take to make such
adjustments (Docket IDs 0058, 0091). To
the extent that these commenters are
concerned about changes they plan to
make to their own recordkeeping or data
submission systems, OSHA notes that
these types of changes are not a
requirement of the final rule. The final
rule simply requires submission of the
data. OSHA will continue to provide
three options for employers to submit
the data (manual entry via web form,
batch upload via csv file, and API), and
it will continue to be up to the
individual employer to decide which
option to use. To the extent that these
comments focus on changes OSHA must
make to the ITA to accept the new
submissions, OSHA has considered this
issue and anticipates being prepared to
accept these submissions beginning in
early 2024.
Some commenters also argued for an
annual submission date later than
March 2 to allow employers more time
to collect and submit the data from the
previous year. For example, the
Coalition for Workplace Safety
commented that ‘‘OSHA should push
future deadlines to allow companies to
submit past March 2; this date is too
early in the year and does not provide
enough time for companies to collect
and submit this data’’ (Docket ID 0058;
see also Docket ID 0091). The Employers
E-Recordkeeping Coalition similarly
commented: ‘‘For example, one national
employer with approximately 700
establishments that would be covered
by the new requirement to submit 300
and 301 level data currently takes
approximately 3 months to audit and
submit its injury and illness records to
ensure that its 300A data submissions
are accurate. Manually keying in every
line of hundreds of 300 log data, or if
that is not necessary, at least keying in
thousands of 301 Reports would be
exponentially more burdensome—likely
infeasible given the annual March 2nd
submission deadline.’’ (Docket ID 0087).
In response, OSHA is not persuaded
that the March 2 date is too early in the
year to submit data for the previous
year. OSHA notes that § 1904.32 already
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
requires employers to review the Form
300 Log entries and complete, certify,
and post the Form 300A annual
summary no later than February 1 of the
year following the year covered by the
records. Therefore, employers must
already have collected and reviewed all
of their establishments’ 300 Log
information for the previous year by
February 1 of each year. Having
completed this review, they will then
have an additional month to submit the
data. The scenario posed by the
Employers E-Recordkeeping Coalition
regarding manually typing in hundreds
or thousands of lines of data would only
arise if a company with many
establishments chose to enter all the
data via webform. There are three data
submission methods available, as
discussed further elsewhere in this
preamble, and entering data via
webform would be the least efficient
method for a company with many
establishments.
After consideration of these
comments, OSHA has decided to retain
the proposed data submission deadline
in the final rule and require submission
of the previous calendar year’s data by
March 2 of each year.
G. Additional Comments Which
Concern More Than One Section of the
Proposal
1. General Comments
There were several comments asking
OSHA to add data submission
requirements for other types of
establishments. For example, Worksafe
recommended adding a requirement for
companies with five or more
establishments to collect and submit
part 1904 occupational injury and
illness data for those work locations and
establishments (Docket ID 0063).
Similarly, the National Nurses Union
recommended adding a submission
requirement for companies with 500 or
more employees across multiple
establishments (Docket ID 0064).
Neither of these recommendations is
being incorporated into the final rule.
Data submission requirements for multiestablishment companies, regardless of
the number of establishments or size of
the employer, were not included in any
proposed regulatory provision or
alternative in the NPRM; nor was the
topic otherwise addressed by OSHA as
part of the proposed rule. As such,
OSHA does not believe that a
requirement for multi-establishment
employers to submit data to OSHA
would be a logical outgrowth of the
proposal. (Although OSHA believes that
these recommendations are out of the
scope of the proposal, the agency notes
PO 00000
Frm 00068
Fmt 4701
Sfmt 4700
that it proposed similar ideas as
Alternative I in the 2016 rulemaking
and rejected that Alternative, in part,
due to practicality concerns. OSHA does
not believe that those concerns have
been obviated in the years since the
issuance of the 2016 final rule.)
Similarly, there was a comment
expressing concern that the rule will not
capture data for workers classified as
independent contractors, and
‘‘encourag[ing] OSHA to study the
benefits of data collection for all
workers, regardless of classification,
including those who may be improperly
designated as independent contractors’’
(Docket ID 0045). As interested parties
are generally aware, the Occupational
Safety and Health (OSH) Act of 1970
only applies to ‘‘employment’’ (see 29
U.S.C. 653(a)). Businesses do not meet
the definition of the term ‘‘employer’’ in
Section 3(5) of the OSH Act, 29 U.S.C.
652(5), unless they have employees.
Similarly, individuals are not
considered ‘‘employees’’ under the OSH
Act unless they are employed by an
employer (29 U.S.C. 652(6)). Thus,
independent contractors are not covered
under the OSH Act. The agency
understands that, at times, employees
are misclassified as independent
contractors and are consequently not
receiving the protections that they
should. OSHA has other initiatives to
address that important issue. However,
the agency finds that it is beyond the
scope of this rule, which only covers
employees.
There were also comments asking
OSHA to expand the data requested on
OSHA’s recordkeeping forms. For
example, the National Safety Council
commented that OSHA should collect
more demographic data, such as race or
ethnic origin, and that OSHA should
include a method to identify and collect
basic information on musculoskeletal
disorders (MSDs) (Docket ID 0041).
Similarly, Unidos US, Farmworker
Justice, and Texas RioGrande Legal Aid
commented that OSHA should require
employers to report race and ethnicity
data in case-specific reports and publish
the data alongside the other casespecific information (Docket ID 0078).
ConnectiCOSH proposed a requirement
for employers to document when
workers have complained about
retaliation (Docket ID 0069).
Also related to expanding the data
requested on the OSHA recordkeeping
forms, the Phylmar Regulatory
Roundtable (PRR) commented that
instead of requesting information from
the Forms 300 and 301, OSHA should
revise the Form 300A to include more
useful identifiers. For example,
including ‘‘heat’’ as a type of illness,
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
and ‘‘indoor,’’ ‘‘outdoor,’’ ‘‘office,’’
‘‘distribution facility,’’ and ‘‘off-site’’ for
a field titled ‘‘location’’ would give
OSHA more information without
identifying employees (Docket ID 0094).
More generally, the Employers ERecordkeeping Coalition commented
that OSHA should create a committee or
task an existing committee to explore
changes to injury and illness
recordkeeping, including to consider
adopting ASTM E2920–14 (Standard
Guide for Recording Occupational
Injuries and Illnesses), an international
standard that would allow data
comparisons with other countries
(Docket ID 0087).
These recommendations to expand or
change recordkeeping forms, or to
explore broader changes to injury and
illness recordkeeping, such as adopting
an ASTM standard, were not included
in any proposed regulatory provision or
alternative in the NPRM, nor were these
topics otherwise addressed by OSHA as
part of the proposed rule. As such, these
topics are not within the scope of this
rulemaking. Similarly, comments
raising issues with OSHA’s recording
criteria or other parts of part 1904 that
are not at issue in this rulemaking (e.g.,
Docket ID 0017 (related to the
recordability of COVID–19 cases)) are
out of scope of this rulemaking.
The National Safety Council (NSC)
provided a comment about OSHA
enforcement of the reporting
requirements: ‘‘First, OSHA must take
steps to improve reporting compliance.
The Department of Labor Office of
Inspector General report provides some
key recommendations for OSHA to
improve reporting: 1. Develop guidance
and train staff on identifying
underreporting, 2. Issue citations for all
late reporters, 3. Clarify guidance on
documenting essential decisions,
collecting evidence to demonstrate
employers corrected all identified
hazards, and monitoring employer
conducted investigations, and 4.
Conduct inspections on all Category 1
incidents. These are key
recommendations to improve the
original data. Additionally, the National
Academy of Sciences (NAS) produced a
2018 study on OSHA data collections
acknowledging the limitations of the
current data system(s) and made several
recommendations for improving and
supplementing the OSHA data that
should also guide OSHA actions.’’
(Docket ID 0041; see also Docket ID
0080 (recommending OSHA evaluate
procedures for compliance and
enforcement)).
With respect to the Office of the
Inspector General’s 2018 Report, OSHA
Needs to Improve the Guidance for its
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
Fatality and Severe Injury Reporting
Program to Better Protect Workers,
OSHA agreed that better case
documentation can help promote
consistency in the issuance of citations,
as well as the determination of whether
to conduct an inspection or a rapid
response investigation. However, OSHA
was concerned that the OIG’s report
suggested that the burden to ensure
reporting falls on the agency when the
OSH Act clearly states that it is the
employer’s responsibility to comply
with the standards under Section
5(a)(2). The agency encourages
employers to comply with illness and
injury reporting requirements through a
variety of enforcement, outreach, and
compliance assistance tools. OSHA’s
full response to the OIG’s report can be
found in Appendix B of that report at
https://www.oig.dol.gov/public/reports/
oa/2018/02-18-203-10-105.pdf.
With respect to the National
Academies of Science, Engineering, and
Medicine (NAS) report, A Smarter
National Surveillance System for
Occupational Safety and Health in the
21st Century, OSHA concludes the final
rule is responsive to that report (see
OSHA–2021–0006–0097). This NAS
report was the result of a joint request
from NIOSH, BLS, and OSHA to NAS,
asking NAS to conduct a study in
response to the need for a more
coordinated, cost-effective set of
approaches for occupational safety and
health surveillance in the United States.
The NAS report suggested that
electronic collection of Form 300 and
301 data would allow OSHA to focus its
interventions and prevention efforts on
hazardous industries, workplaces,
exposures, and high-risk groups.
Additionally, the NAS report made
recommendations on ways the public
data could be utilized by employers,
researchers, government agencies, and
workers (Docket ID 0061). Further,
according to the report, collecting Form
300 and 301 data electronically would
also allow for expanding and targeting
outreach to employers to improve
hazard identification and prevention
efforts, and would give OSHA the
opportunity to advise employers on how
their rates of injury and illness compare
with the rest of their industry. OSHA
agrees with these assessments regarding
the value of electronically collecting
Form 300 and 301 data, as reflected by
the final rule.
PRR commented, ‘‘to ensure the
Agency remains fair, balanced, and
trusted, any targeting for enforcement
that results from submission of Forms
300, 301 and 300A should be based on
a systematic approach that is
standardized and impacts all industries
PO 00000
Frm 00069
Fmt 4701
Sfmt 4700
47321
in [a]ppendix B subpart E, equally’’
(Docket ID 0094). In response, OSHA
agrees that it should take a systematic
approach to enforcement targeting based
on the data it collects from these
recordkeeping forms. As addressed
elsewhere in this preamble (e.g., Section
III.B.4 of this Summary and
Explanation), OSHA’s systematic
approach to enforcement in site-specific
targeting using data collected from the
Form 300A is illustrated by OSHA’s
directive on Site-Specific Targeting
(SST) (CPL 02–01–064, issued on
February 7, 2023, https://www.osha.gov/
enforcement/directives/cpl-02-01-064).
In this directive, OSHA states that it
will generate inspection lists of: (1)
establishments with elevated Days
Away, Restricted, or Transferred
(DART) rates for CY 2021; (2)
establishments with upward trending
rates for the range of CY 2019–2021; (3)
establishments that did not provide the
required 2021 Form 300A data to
OSHA; and (4) establishments with low
DART rates in CY 2021 to verify data
accuracy and quality control. OSHA’s
Office of Statistical Analysis provides
each Area Office (AO) with access to
software and databases that include the
establishments on the Inspection List.
AOs must generate inspection cycles
using the SST software that randomly
selects the establishments and shall
determine inspection cycle size (i.e., 5
to 50 establishments) based on available
resources and the geographic range of
the office. Once initiated, the entire
cycle must be completed. Within a
cycle, the AO may schedule and inspect
the selected establishments in any order
that makes efficient use of available
resources.
As indicated by the content of the
directive, while OSHA does take a
systematic approach to enforcement
targeting, OSHA does not agree that any
targeting for enforcement resulting from
submission of the data from Forms 300,
301, and 300A should necessarily
impact all industries in appendix B
subpart E equally. If reported data were
to show a particular industry had a very
high rate of occupational illnesses or
injuries, enforcement targeting that
particular industry would be
appropriate. The final rule provides
more accurate and detailed information
that will be used to protect workplace
health and safety.
Reps. Foxx and Keller commented,
‘‘DOL further revealed its intention to
reward Big Labor in its extension of the
proposed rule’s comment period, citing
a single request from the AFL–CIO,
despite the fact that it has routinely
denied similar requests from business
stakeholders and members of Congress’’
E:\FR\FM\21JYR2.SGM
21JYR2
47322
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
ddrumheller on DSK120RN23PROD with RULES2
(Docket ID 0062). In response, OSHA
notes that the agency received two
requests for extension of the comment
period: from the AFL–CIO in a letter
dated May 5, 2022 (Docket ID 0027), and
from the Employers E-Recordkeeping
Coalition in a letter dated May 20, 2022
(Docket ID 0032). OSHA determined
that it would be reasonable to extend
the comment period and offered the
same additional 30 days to everyone
(see 87 FR 31793–4 (May 25, 2022)).
2. Misunderstandings About Scope
Some commenters expressed concern
that the proposal would expand the
number of employers required to submit
data. The Chamber of Commerce
commented that the lists of designated
industries in Appendices A and B ‘‘are
long and not that limiting,’’ and the
National Propane Gas Association
commented, ‘‘[a]ccording to the
proposed revisions to [a]ppendix A and
proposed creation of [a]ppendix B, the
NPRM would expand reporting
requirements to more establishments
within the propane industry’’ (Docket
IDs 0050, 0088). The National Propane
Gas Association also expressed
disagreement with ‘‘the proposed
creation of [a]ppendix B to the extent
that it includes all the industries already
listed in [a]ppendix A’’ (Docket ID
0050). In response, OSHA notes that
appendix B does not include all the
industries listed in appendix A; rather,
appendix B is a subset of appendix A.
Additionally, as explained in the NPRM
and elsewhere in this preamble, all of
the establishments that will be required
to submit information to OSHA under
the new requirements in this final rule
were already required to submit
information to OSHA under the
previous requirements, so it is not the
case that this rule expands the number
of establishments required to report.
The National Propane Gas Association
also recommended that ‘‘OSHA retain
the current scope and applicability of
[§ ]1904.41(a)(1) to apply to employers
with 250 or more employees within the
industries identified in [a]ppendix A,’’
rather than ‘‘expanding’’ the
requirement to ‘‘more employers and
more establishments’’ (Docket ID 0050).
As explained in the NPRM and the
preamble to this final rule, OSHA did
not propose to expand the scope of
[§ ]1904.41(a)(1). Rather, the agency
explicitly stated that the proposal
‘‘would not impose any new
requirements on establishments to
electronically submit information from
their Form 300A,’’ however, ‘‘proposed
§ 1904.41(a) would remove the
electronic submission requirement for
certain establishments with 250 or more
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
employees.’’ Accordingly, the
commenter’s concerns are misplaced.
The National Propane Gas Association
also stated that OSHA is proposing to
increase ‘‘the frequency of submissions’’
of injury and illness reports (Docket ID
0050). OSHA did not propose to
increase the frequency of submissions of
injury and illness data; rather,
employers required to submit such data
will continue to be required to do so
once a year, as under the current
requirements.
3. Diversion of Resources
In the 2019 final rule, OSHA stated
that rescinding the information
submission requirements would allow
employers to devote more of their
resources towards compliance with
safety and health standards (84 FR 394).
Similarly, several commenters to the
current NPRM also asserted that the
proposed rule would be
counterproductive to the goal of
improving safety and health because
complying with the rule would divert
resources that would otherwise be
devoted to other worker safety and
health efforts (e.g., Docket IDs 0060,
0062, 0070, 0088). In most cases these
assertions were unsupported (e.g.,
Docket ID 0062 (simply asserting that
compliance with the rule would divert
employer resources from workplace
safety and health initiatives without
further explaining how it would do so)).
A few commenters, however, did
make more concrete statements that
might relate to this issue. For example,
the Chamber of Commerce, in
challenging OSHA’s economic analysis,
claimed that the proposal would require
safety department personnel to spend
time on preparation of the data for
submission, presumably at the cost of
spending time improving safety (Docket
ID 0088). But that diversion, if it occurs,
would be required by the recordkeeping
rule itself, not by the requirement to
submit records. Employers have always
been required to keep accurate records.
To the extent that the argument is that
employers will take greater care with
records to be submitted to OSHA and
eventually published, that is not a result
of the rule so much as it is a result of
employers not having taken adequate
care previously. Similarly, the need to
ensure that information that could
compromise workers’ privacy is not
submitted inappropriately (see, e.g.,
Docket ID 0081) should be obviated by
entering the information carefully in the
first place (see, e.g., the instructions on
Form 301: ‘‘Re fields 14 to 17: Please do
not include any personally identifiable
information (PII) pertaining to worker(s)
involved in the incident (e.g., no names,
PO 00000
Frm 00070
Fmt 4701
Sfmt 4700
phone numbers, or Social Security
numbers’’)).
4. Lagging v. Leading Indicators
OSHA also received several
comments which focused on OSHA’s
recordkeeping system’s use of lagging,
rather than leading indicators. Broadly
speaking, leading indicators are
proactive, preventive, and predictive
measures that provide information
about the effective performance of an
employer’s safety and health activities.
They measure events leading up to
injuries, illnesses, and other incidents
and reveal potential problems in an
employer’s safety and health program.
In contrast, lagging indicators measure
the occurrence and frequency of events
that occurred in the past, such as the
number or rate of injuries, illnesses, and
fatalities (see https://www.osha.gov/
sites/default/files/OSHA_Leading_
Indicators.pdf).
On the issue of lagging versus leading
indicators, the American Society of
Safety Professionals (ASSP) commented,
‘‘ASSP advocates a comprehensive riskbased approach that measures leading as
well as lagging indicators. Leading
indicators provide critical information
about an organization’s true
commitment to safety and health, at
times acting as a better gauge of a
system’s vulnerabilities or effectiveness
than lagging indicators’’ (Docket ID
0031; see also Docket IDs 0041, 0053).
Similarly, PRR commented, ‘‘The safety
community has been actively moving
away from using case rates as indicators
of a safety program’s effectiveness and
has been experimenting with various
leading indicators’’ (Docket ID 0094).
PRR further commented that the use of
lagging indicators ‘‘leads the general
public, which is uninformed, to think
that there is direct correlation between
injury and illness rates and the
effectiveness of an employer’s worker
safety and health programs and
practices’’ (Docket ID 0094; see also
Docket IDs 0043, 0088).
In addition, ASSP ‘‘recommends that
OSHA develop guidance on leading
indicators and overhaul the current
recordkeeping system to use both
leading and lagging indicators as
indicators of the effectiveness of a
business’ safety and health management
system’’ (Docket ID 0031). In its
comment, ASSP referred the ANSI/
ASSP Z16.1–2022 standard (‘‘Safety and
Health Metrics and Performance
Measures’’), which contains leading
indicators, to OSHA for consideration.
(OSHA has placed a copy of ANSI/ASSP
Z16.1–2022 standard in the docket as a
copyright protected reference (Docket ID
0101).)
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
In response to ASSP’s
recommendation that OSHA ‘‘overhaul
the current recordkeeping system to use
both leading and lagging indicators as
indicators of the effectiveness of a
business’ safety and health management
system[,]’’ including through a review of
the referenced ANSI/ASSP standard,
OSHA notes that such an overhaul is
outside of the scope of this rulemaking,
which focuses only on the annual
electronic submission of data which
employers are already required to keep.
The agency did not propose changes to
the data which should be kept, e.g.,
whether such data should include
leading indicators, and if so, which.
That said, OSHA agrees with ASSP
that leading indicators are an important
tool to assess the effectiveness of
workplace safety and health programs.
However, as ASSP acknowledges,
leading indicators are not the only such
tool. As OSHA has explained many
times before (see, e.g., https://
www.osha.gov/safety-management/
program-evaluation), both leading and
lagging indicators are valuable
performance measures. These two
measures work together to provide a
comprehensive picture of worker safety
and health in an industry or particular
workplace. (For more information on
the benefits and utility of the lagging
indicators that will be collected and
published in this rulemaking, see
Section III.B.4 of this Summary and
Explanation.) This rulemaking and
OSHA’s recordkeeping system in
general focuses on lagging indicators.
Other OSHA programs, such as the
Voluntary Protection Programs (VPP)
which recognizes employers and
workers in the private industry and
Federal agencies who have
implemented effective safety and health
management systems and maintain
injury and illness rates below national
Bureau of Labor Statistics averages for
their respective industries, encourage
the use of leading indicators. And, as
ASSP suggests, OSHA has previously
published guidance related to leading
indicators (see, e.g., https://
www.osha.gov/sites/default/files/
OSHA_Leading_Indicators.pdf; https://
www.osha.gov/leading-indicators).
Moreover, OSHA notes that its
recordkeeping system is in line with
Congress’ instructions in the OSH Act
(see, e.g., Section 8(c)(2) (‘‘The Secretary
. . . shall prescribe regulations
requiring employers to maintain
accurate records of, and to make
periodic reports on, work-related
deaths, injuries and illnesses other than
minor injuries requiring only first aid
treatment and which do not involve
medical treatment, loss of
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
consciousness, restriction of work or
motion, or transfer to another job[;]’’);
see also Section 8(g)(1) (‘‘The Secretary
and Secretary of Health and Human
Services are authorized to compile,
analyze, and publish, either in summary
or detailed form, all reports or
information obtained under this
section.’’)).
As to the argument that OSHA’s
planned publication of lagging
information will mislead the public,
OSHA has previously published data
from establishments’ CY 2016–2021
300A forms online and has long given
out redacted Forms 300 and 301 in
response to FOIA requests, and the
agency has not received reports of
widespread public confusion, nor have
interested parties pointed to such
reports of confusion in their comments
in this rulemaking. Consequently,
OSHA is not persuaded that these
parties’ hypothetical concerns should
change the course of this rulemaking.
Nevertheless, to help decrease the risk
that members of the public might
inaccurately assume that an
establishment’s report of an injury or
illness always suggests a deficiency in
that establishment’s safety and health
system, OSHA will continue to include
a reference to the Note to 29 CFR 1904.0
in the notes below the links to the
website on which it publishes the safety
and health data submitted pursuant to
this rulemaking (see Note to § 1904.0
(‘‘Recording or reporting a work-related
injury, illness, or fatality does not mean
that the employer or employee was at
fault, that an OSHA rule has been
violated, or that the employee is eligible
for workers’ compensation or other
benefits.’’)).
OSHA also received comments
arguing that requiring the submission of
injury and illness data from the
recordkeeping forms, and publishing
data from the submissions, will divert
employer focus from leading indicators.
For example, ASSP commented,
‘‘OSHA’s focus on lagging injury and
illness data has at times created a
stumbling block to systemic safety
program improvements by actively
discouraging employers from embracing
a holistic risk-based approach’’ (Docket
ID 0031). Similarly, the U.S. Poultry &
Egg Association commented, ‘‘In this
proposal, OSHA is myopically focusing
on injuries and injury rates . . . Despite
what OSHA may believe, because
employers will know that their
information will be made available
worldwide, they will focus greater
attention on these issues at the expense
of focusing on leading safety metrics’’
(Docket ID 0053). The North American
PO 00000
Frm 00071
Fmt 4701
Sfmt 4700
47323
Meat Institute made a similar comment
(Docket ID 0076).
In response, OSHA notes that, as
discussed in Section III.G of this
Summary and Explanation, employers
are already required to complete these
forms, and there is no reason why the
new requirement to submit information
from these forms would prevent
employers from additionally
implementing proactive measures as
part of a comprehensive safety and
health program. The agency is unaware
of any resulting increase in
inappropriate focus by employers on
recordable injuries/illnesses vs. leading
indicators, commenters did not provide
any examples, and it is not clear why
publishing case-specific information
from the OSHA Form 300 and 301
would cause employers to focus
inappropriately on recordable injuries
and illnesses in a way that collecting
and publishing establishment-specific
information from the OSHA Form 300A
Annual Summary did not. Moreover, as
discussed in Section III.B.4 of this
Summary and Explanation, OSHA’s
publication of the establishmentspecific, case-specific, injury and illness
data will benefit employers by giving
them access to a larger data set that can
be used for benchmarking. This
increased access to information will
enable employers to proactively
improve their workplace safety and
health.
5. Employer Shaming
The National Propane Gas Association
commented: ‘‘It is assumed that the
agency’s ambition is to embarrass,
shame, or otherwise damage the
reputation of employers as a means to
induce some undefined improvement.
Underscoring this ambition is the
agency’s presumption that employers
are not invested in employees’ safety;
that public scrutiny is the only
enticement to improve the workplace
rather than an employers’ natural
concern for employees’ safety. We
disagree with the agency’s lack of faith
in employers . . . .’’ (Docket ID 0050).
In response, this appears to be a
misunderstanding. There is no mention
in the preamble to the proposed rule of
shaming, embarrassing, or damaging the
reputation of employers; nor is this the
agency’s intent. On the contrary, the
preamble specifically stated that
‘‘publication of establishment-specific,
case-specific injury and illness data
would benefit the majority of employers
who want to prevent injuries and
illnesses among their employees,
through several mechanisms’’ (87 FR
18533–4). Those mechanisms include
‘‘enable[ing] interested parties to gauge
E:\FR\FM\21JYR2.SGM
21JYR2
47324
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
ddrumheller on DSK120RN23PROD with RULES2
the full range of injury and illness case
types at the establishment,’’ allowing
employers to ‘‘compare case-specific
injury and illness information at their
establishments to those at comparable
establishments, and set workplace
safety/health goals benchmarked to the
establishments they consider most
comparable,’’ and ‘‘allow[ing]
employees to compare their own
workplaces to the safest workplaces in
their industries’’ (id.). OSHA further
stated that, ‘‘if employees were able to
preferentially choose employment at the
safest workplaces in their industries,
then employers might take steps to
improve workplace safety and health
(preventing injuries and illnesses from
occurring) in order to attract and retain
employees’’ (id.). As OSHA has
discussed elsewhere in this preamble,
the currently available 300A data has
already been critical to efforts to
improve worker safety and health, and
publishing the case-specific data
required to be submitted under this rule
will further improve workplace safety
and health (see, e.g., Section III.B.4 of
this Summary and Explanation). The
purpose of this rule is to improve
workers’ well-being not by shaming
their employers, but by providing
employers and other interested parties
with valuable information that can be
used to better understand and address
occupational safety and health hazards.
6. Impact on Employee Recruiting
The Precision Machined Parts
Association commented, ‘‘PMPA
believes that posting this information on
the internet without explanation will
not improve workplace safety but will
make it tougher for manufacturers to
recruit young people and qualified
employees into manufacturing careers’’
(Docket ID 0055).
Similarly, the North American Die
Casting Association commented, ‘‘This
proposed rulemaking will only serve to
hurt the image of the industry and
discourage individuals from seeking
careers in manufacturing. In a recent
survey, 96 percent of NADCA members
report they have job openings in their
facilities, and OSHA’s actions in making
these reports public will create a false
image of the industry as
dangerous. . . . At a time when
businesses are already struggling to
recruit employees and compete globally,
OSHA should not continue to erect
additional barriers to job growth and
drive a wedge between employer and
employee.’’ (Docket ID 0056). The
Precision Metalforming Association and
National Tooling and Machining
Association expressed similar concerns
in their joint comment (Docket ID 0057).
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
In response, OSHA notes that
supporting and explanatory information
has always been included on its website
for ODI as well as ITA data, and the
agency plans to continue this practice.
For example, the ITA website contains
several explanations of the data that
address commenters’ specific concerns,
including a note that ‘‘[r]ecording or
reporting a work-related injury, illness,
or fatality does not mean that the
employer or employee was at fault, that
an OSHA rule has been violated, or that
the employee is eligible for workers’
compensation or other benefits’’
(https://www.osha.gov/EstablishmentSpecific-Injury-and-Illness-Data). The
ODI website also includes explanatory
notes (https://www.osha.gov/ords/odi/
establishment_search.html). The agency
has published establishment-specific
information from the Form 300A
summary since 2009 but is unaware of
any resulting detrimental effects on the
recruitment of young people and
qualified employees into manufacturing
careers; nor did the commenters provide
any examples. On the other hand,
OSHA notes that the data could assist
with new employee recruitment efforts
by providing prospective employees
with more information about injuries
and illnesses occurring at the
establishment. For example, a
prospective employee might be
concerned by the number of injuries or
illnesses listed in the information from
an establishment’s 300A Summary, but
the case-specific forms allow
establishments to provide more
information regarding the injuries and
illnesses summarized in the 300A,
allowing prospective employees to make
more informed decisions.
7. Legal Disputes
AIHA commented, ‘‘Data related to
personal injury can be combined with
other readily available data from
newspapers, community ‘gossip’, etc.,
and then used to identify the affected
individuals. Once identified, the
individuals could be harassed or
encouraged to file lawsuits or additional
claims against employers’’ (Docket ID
0030). Similarly, the National Propane
Gas Association stated that OSHA
ignored the ‘‘potential for frivolous
lawsuits or investigations that could be
fueled by the incomplete information
that the agency intends to publish’’
(Docket ID 0050).
The Motor and Equipment
Manufacturers Association commented,
‘‘Making such data publicly available
would allow third parties to use it for
reasons wholly unrelated to safety.’’
This commenter provided the following
example: ‘‘plaintiffs’ attorneys, labor
PO 00000
Frm 00072
Fmt 4701
Sfmt 4700
unions, competitors, and special interest
groups would be able to use such
information—selectively or otherwise—
as leverage against companies during
legal disputes, union organizing drives,
contract negotiations, or as part of an
effort to prevent a company from
entering a specific market’’ (Docket ID
0075; see also Docket ID 0088).
The Chamber of Commerce similarly
argued that, ‘‘[M]aking these data
publicly available would very likely
lead to less desirable outcomes, such as
increased litigation from plaintiffs’
attorneys looking to assert that the
employer was at fault to overcome
workers’ compensation no-fault
limitations, as well as unions using
these data to mischaracterize an
employer’s safety record during
organizing campaigns or contract
negotiations.’’ (Docket ID 0088).
As discussed above, the agency has
published establishment-specific
information from the Form 300A
summary since 2009 but is unaware of
any resulting increase in legal disputes
or unwarranted reputational damage;
nor did the commenters provide any
specific examples. As noted above,
given that this final rule requires the
submission of information that can
provide details on, and context for, the
information from the Form 300A that is
already being made public, the new
information may help provide a fuller,
more accurate picture of worker safety
and health at a given establishment.
This additional context and detail could
actually help protect businesses against
attempts to mischaracterize their safety
records, whether in the legal context or
otherwise. As discussed above, it is also
important to note that employees and
their representatives already have the
right to request and receive injury and
illness records from their employers (see
29 CFR 1904.35). While OSHA
recognizes that such access is on a
smaller scale, there is already the
potential for the data to be used for
these purposes, independent of this
regulation. Finally, also as discussed
above, to the extent that the published
data serves to address the problem of
information asymmetry in the labor
market, OSHA considers that a positive
consequence of the final rule.
8. No Fault Recordkeeping
OSHA also received several
comments asserting that the proposed
rule would be inconsistent with the ‘‘no
fault’’ nature of the recordkeeping
system, as set forth in the note to 29
CFR 1904.0: ‘‘Recording or reporting a
work-related injury, illness, or fatality
does not mean that the employer or
employee was at fault, that an OSHA
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
rule has been violated, or that the
employee is eligible for workers’
compensation or other benefits’’ (e.g.,
Docket IDs 0053, 0086, 0087, 0090,
0091). OSHA received similar
comments on the 2013 NPRM (the
rulemaking which culminated in the
2016 final rule) (see 81 FR 29666–67).
These comments misconstrue what
OSHA means by no fault reporting. As
OSHA has explained previously, it will
not use the mere fact that an employer
has recorded or reported and injury or
illness as evidence that the employer
violated the OSH Act or an OSHA
standard. But that is not the same as
saying that the data recorded and
reported have no valid use or effect.
OSHA has used employer reports of
worker deaths and injuries, as well as
press reports and referrals from other
agencies, as a basis for investigating
conditions at an affected workplace
throughout its entire history. For just as
long, OSHA’s first step in all of its
workplace inspections has been an
examination of the establishment’s
injury and illness records. OSHA’s very
first Compliance Operations Manual,
issued in January 1972, states that
‘‘During the course of a routine
inspection, the CSHO shall inspect
those employer records required to be
kept by the Act and by [p]art 1904’’
(Docket ID 0100, p. V–15). And today,
the instruction is the same: ‘‘At the start
of each inspection, the CSHO shall
review the employer’s injury and illness
records (including the employer’s
OSHA 300 logs, 300A summaries, and
301 incident reports) for three prior
calendar years’’ (see OSHA’s Field
Operations Manual, CPL 02–00–164,
Chapter III, Paragraph VI.A.1 (April 14,
2020) available at https://www.osha.gov/
enforcement/directives/cpl-02-00-164).
And OSHA has always used the
information in those records to guide
the nature of its inspections (see, e.g.,
McLaughlin v. A.B. Chance Co., 842
F.2d 724 (4th Cir. 1988) (noting that
during a complaint inspection about a
particular machine, ‘‘it would be
reasonable for the investigator to
determine if there had been injuries
from the use of said machine’’)). Indeed,
for many years, OSHA’s inspections
plans explicitly conditioned the scope
of inspections on the data found in
those records (In re Establishment
Inspection of Kohler Co., 935 F.2d 810
(7th Cir. 1991) (‘‘OSHA applied to a
federal magistrate for an administrative
search warrant that would require
Kohler to produce the records and to
submit to a comprehensive inspection of
its entire facility if those records
revealed that Kohler’s injury rate
exceeded the national average for
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
manufacturing concerns.’’)). In the last
five years OSHA has used information
from establishments’ 300A Forms
submitted under the 2016 final rule to
prioritize which workplaces to inspect
through OSHA’s Site-Specific Targeting
program. It does so by using a neutral
administrative scheme to identify
hazards that OSHA wants to address
through its enforcement resources.
However, OSHA will not use the casespecific injury and illness information
submitted to simply choose a particular
employer to inspect outside of the
neutral administrative scheme noted
above (see Marshall v. Barlow’s Inc., 436
U.S. 307 (1978)). Thus, the assertion by
the Employers E-Recordkeeping
Coalition, ‘‘that the principal reason that
the data collected pursuant to this
proposed rule is published by OSHA
presumes and is based on a premise of
employer fault,’’ is wrong (see Docket ID
0087).
OSHA continues to recognize that the
mere fact of any particular injury or
illness occurring is not an indication of
employer fault. But the reports of those
injuries and illnesses can provide
important information about hazards
that exist at workplaces, whether or not
those hazards are addressed by existing
OSHA standards. As explained
elsewhere, this information can be
useful not only to OSHA, but also to
researchers, workers, and even other
employers with similar facilities (see,
e.g., Docket IDs 0030, 0045). For the
same reasons, as discussed elsewhere in
this preamble, publication of the
submitted data is not intended to
‘‘shame’’ employers (see Docket ID
0081); it is merely to allow use of the
data in ways that will promote
occupational safety and health.
9. Confidentiality of Business Locations
One commenter was concerned about
the consequences of disclosing business
locations for certain establishments.
Specifically, the National Retail
Federation commented that some
business locations need to remain
confidential because ‘‘[m]any retailers
deal with pharmaceuticals, hazardous
materials, or other highly sought after
and/or dangerous products,’’ and
‘‘[e]xposing the locations of these
operations could leave them vulnerable
to bad actors seeking the materials for
their own use or sale on the black
market’’ (Docket ID 0090).
In response, OSHA notes that it has
long published certain information from
employers’ Form 300A, including
business locations. As explained
elsewhere, the agency began publishing
information from establishments’
electronic submissions of Form 300A
PO 00000
Frm 00073
Fmt 4701
Sfmt 4700
47325
annual summary data in 2020; in
addition, beginning in 2009, OSHA
published information from the
establishments’ submissions of the Form
300A to the OSHA Data Initiative (ODI),
which was replaced by the current data
collection. The information published
from both data collections included
establishments’ addresses. Furthermore,
OSHA is not aware of any instances of
damage from bad actors as a result of
data collected through the ITA or the
ODI and published since 2009, and
commenters did not provide any
examples. Nor is OSHA aware of any
law that classifies business addresses as
confidential business information or
personally identifiable information, and
commenters have provided none.
Moreover, OSHA notes that the
Environmental Protection Agency
already publishes information about the
location of workplaces with hazardous
materials and chemicals. For example,
facilities must inform local communities
of the presence of hazardous chemicals
at specific worksites under the
Emergency Planning and Community
Right-to-Know Act. Also, EPA maintains
hazardous materials information in the
Resource Conservation and Recovery
Act Information (RCRAInfo), which
provides a searchable public website for
the identification of facilities that
generate, handle, and store hazardous
materials (see, e.g., the Toxic Release
Inventory: https://www.epa.gov/enviro/
tri-search and the Emergency Planning
and Community Right-to-Know Act
(EPCRA) Reporting Requirements:
https://www.epa.gov/epcra/state-tier-iireporting-requirements-andprocedures). Given the availability of
such information, OSHA does not
expect that the minimal amount of
information regarding hazardous
materials that it may publish will lead
to the problems envisioned by this
commenter.
Finally, OSHA believes that the
benefits of publishing this information
outweigh the purported risks. As
discussed in greater detail in Section
III.B.4 of this Summary and
Explanation, OSHA has identified a
number of ways in which employees,
researchers, consultants, and the general
public may benefit from the publication
of data from Forms 300 and 301, and if
those groups do not have access to
businesses’ addresses, many of those
benefits will not be realized. For
example, injury and illness data may
help job seekers make more informed
decisions regarding their employment,
but only if they can accurately identify
their potential employers. Accordingly,
OSHA declines to change its
E:\FR\FM\21JYR2.SGM
21JYR2
47326
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
ddrumheller on DSK120RN23PROD with RULES2
longstanding practices regarding
publication of business locations.
10. Employer-Vaccine-Mandate-Related
Concerns
OSHA also received a comment from
an interested party who was concerned
that non-OSHA actors will
mischaracterize the injury and illness
data which OSHA intends to publish on
its websites as ‘‘vaccine-related,’’
especially if those injuries and illnesses
occur in establishments with known
vaccine mandates. Specifically, the
National Retail Federation (NRF)
commented that ‘‘throughout the
COVID–19 pandemic and continuing
beyond, various groups have targeted
employers for implementing vaccine
mandates in their workplaces. Such
employers could face unwarranted
attacks or unfair mischaracterizations of
their workplace safety records due to
vaccination policies. Sadly, we have
already seen anti-vaccine advocates
manipulate publicized workplace
injuries and unjustly characterize them
as vaccine-related. Employers who
implemented vaccine mandates
consistent with the Administration’s
wishes, should not be unfairly targeted
by those who would eagerly
mischaracterize the impact of mandates
and policies’’ (Docket ID 0090).
OSHA understands this commenter’s
concern. However, OSHA published
calendar year 2021 data from OSHA
Form 300A on its website in April 2022,
September 2022, and January 2023. The
information made available in that
release (like previous releases of the
data from Form 300A) includes, among
other things, company names and data
regarding total number of deaths; total
numbers of cases with days away from
work and job transfers or restrictions,
total number of other restrictions, and
injury and illness types (e.g., the total
number of injuries, skin disorders,
respiratory conditions, poisonings, and
all other illnesses). If the groups
referenced by NRF were going to use
OSHA data to target the establishments
with vaccine mandates, OSHA believes
that they already had the opportunity to
do so using the published 300A data.
There is no such evidence of OSHA data
being used for these kinds of attacks in
the record, and NRF did not point to
any such evidence. Moreover, the
publication of case-specific data will
provide more information about the
injuries and illnesses occurring at
establishments, perhaps making it more
obvious that a mischaracterization of an
injury or illness as vaccine-related is
just that: a mischaracterization.
Finally, if NRF is suggesting that the
groups referenced in its comment could
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
somehow determine that a given
employer or establishment had a
vaccine mandate in place by viewing
the Form 300 or 301 data which OSHA
plans to make publicly available, OSHA
thinks such a thing is unlikely. This
final rule does not include a vaccination
mandate for employees, nor does it
require the collection and publication of
information about vaccine mandates at
a given establishment. Further, OSHA is
currently not enforcing 29 CFR 1904’s
recording requirements in the case of
worker side effects from COVID–19
vaccination. Thus, OSHA does not
expect that any information regarding
vaccine side effects will appear in
establishment’s injury and illness data.
And NRF has not pointed to any other
data or evidence that would be
submitted and made public pursuant to
this rulemaking that could alert the
groups discussed above of an employer
or establishment’s vaccine mandate.
Consequently, for the reasons discussed
above, OSHA is not persuaded that the
potential harm referenced by NRF is
anything other than purely speculative.
11. Constitutional Issues and OSHA’s
Authority To Publish Information From
Forms 300 and 301
a. The First Amendment
OSHA received two comments
relating to the First Amendment of the
U.S. Constitution. On the one hand, a
comment from the U.S. Chamber of
Commerce argues that OSHA’s proposed
rule would violate the First Amendment
because it would force employers to
submit their confidential and
proprietary information for publication
on a publicly available government
online database (Docket ID 0088,
Attachment 2). In its comment, the
Chamber noted that the First
Amendment protects both the right to
speak and the right to refrain from
speaking. The Chamber commented:
‘‘While OSHA’s stated goal of using the
information it collects from employers
‘‘to improve workplace safety and
health,’’ 78 FR 67254, is
unobjectionable, ‘‘significant
encroachments on First Amendment
rights of the sort that compelled
disclosure imposes cannot be justified
by a mere showing of some legitimate
governmental interest.’’ Buckley v.
Valeo, 424 U.S. 1, 64 (1976) (per
curiam). Instead, where the government
seeks to require companies to engage in
the type of speech proposed here, the
regulation must meet the higher
standard of strict scrutiny: Meaning that
it must be narrowly tailored to promote
a compelling governmental interest. See
United States v. Playboy Entm’t Grp.,
PO 00000
Frm 00074
Fmt 4701
Sfmt 4700
Inc., 529 U.S. 803, 819 (2000). Once
subjected to strict scrutiny, the
publication provision of this Proposed
Rule must fail because it is not narrowly
tailored towards accomplishing a
compelling government interest. See
Playboy, 529 U.S. at 819. Under the
narrow tailoring prong of this analysis,
the regulation must be necessary
towards accomplishing the
government’s interest. See, e.g.,
Republican Party of Minn. v. White, 536
U.S. 765, 775 (2002) (‘‘[T]o show that
the [requirement] is narrowly tailored,
[the government] must demonstrate that
it does not ‘unnecessarily circumscrib[e]
protected expression.’’ ’ (fourth
alteration in original) (quoting Brown v.
Hartlage, 456 U.S. 45, 54 (1982))).’’
(Docket ID 0088, Attachment 2)
(footnote omitted).
In support of these arguments, the
Chamber alleged that OSHA’s proposal
would undermine (not improve)
workplace safety and health because it
‘‘would substantially deplete OSHA’s
resources.’’ In addition, the Chamber
asserted that ‘‘even if OSHA were able
to maintain this database and analyze
this information in an effective and
timely manner, there is no evidence that
publication of this information will
have any effect on workplace safety’’
(Docket ID 0088, Attachment 2).
On the other hand, Worksafe
commented that the rule would merely
compel employers to submit to OSHA
information that they are already
required to maintain about workplace
incidents (Docket ID 0063). It further
explained that this is a form of
commercial speech, in which the
speaker’s constitutional interest in nondisclosure is minimal (Docket ID 0063
(citing Zauderer v. Office of Disciplinary
Counsel, 471 U.S. 626, 651 (1985))).
Additionally, Worksafe argued that
OSHA could address First Amendment
concerns by identifying the following in
the final rule (1) OSHA’s interest in the
case-specific reports and publication, (2)
how the rule advances that interest, and
(3) why the rule is not unduly
burdensome (Docket ID 0063).
After considering these comments,
OSHA disagrees with the Chamber’s
assertion that this rulemaking violates
the First Amendment. OSHA notes that,
contrary to the Chamber’s comment, the
decision in Buckley v. Valeo only
applies to campaign contribution
disclosures and does not hold that other
types of disclosure rules are subject to
the strict scrutiny standard (see 424 U.S.
1, 64 (reasoning that campaign
contribution disclosures ‘‘can seriously
infringe on privacy of association and
belief guaranteed by the First
Amendment’’)). Later cases also clarify
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
that disclosure requirements only trigger
strict scrutiny ‘‘in the electoral context’’
(see John Doe No. 1 v. Reed, 561 U.S.
186, 196 (2010)).
Further, OSHA agrees with WorkSafe
that Zauderer is applicable to this
rulemaking. In Zauderer, the Supreme
Court upheld Ohio State rules requiring
disclosures in attorney advertising
relating to client liability for court costs
(471 U.S. at 653). The Court declined to
apply the more rigorous strict scrutiny
standard, because the government was
not attempting to ‘‘prescribe what shall
be orthodox in politics, nationalism,
religion, or other matters of opinion or
force citizens to confess by word or act
their faith therein’’ (471 U.S. at 651).
Because it concluded the disclosure at
issue would convey ‘‘purely factual and
uncontroversial information,’’ the rule
only needed to be ‘‘reasonably related to
the State’s interest in preventing
deception of consumers’’ (id.). More
recently, in American Meat Institute v.
U.S. Dept. of Agriculture, the U.S. Court
of Appeals for the D.C. Circuit held that
the Zauderer case’s ‘‘reasonably related’’
test is not limited to rules aimed at
preventing consumer deception, and
applies to other disclosure rules dealing
with ‘‘purely factual and
uncontroversial information’’ (760 F.3d
18, 22 (D.C. Cir. 2014) (en banc) (finding
that the speakers’ interest in nondisclosure of such information is
‘‘minimal’’); see also NY State
Restaurant Ass’n v. NYC Bd. Of Health,
556 F.3d 114, 133 (2d Cir. 2009)
(accord), Pharmaceutical Care Mgmt.
Ass’n v. Rowe, 429 F.3d 294, 310 (1st
Cir. 2005) (accord), cert denied, 547 U.S.
1179 (2006)).
This rule only requires disclosure of
purely factual and uncontroversial
workplace injury and illness records
that are already kept by employers. The
rule does not violate the First
Amendment because disclosure of
workplace injury and illness records is
reasonably related to the government’s
interest in assuring ‘‘so far as possible
every working man and woman in the
Nation safe and healthful working
conditions’’ (29 U.S.C. 651(b)). Further,
as discussed in more detail in Section
III.B.4 of this Summary and
Explanation, OSHA has determined that
the collection and publication of this
information will have a positive effect
on worker safety and health. In
addition, as discussed in Section
III.B.14 of this Summary and
Explanation, OSHA does not believe
that its decision to devote a portion of
its resources to collecting the workplace
injury and illness data covered by this
final rule will negatively impact worker
safety and health. On the contrary,
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
OSHA expects that the data submitted
in response to the requirements put into
place by this final rule will allow OSHA
to allocate its resources in a more
informed fashion. The remainder of the
Chamber’s comment addresses the
requirement that the government
‘‘narrowly tailor’’ regulations that deal
with essential rights, which, as
explained above, does not apply to an
employer’s minimal interest in nondisclosure of purely factual and
uncontroversial information.
b. The Fourth Amendment
The Plastics Industry Association
(Docket ID 0086), as well as one private
citizen commenter (Docket ID 0023),
generally assert that the collection and
publication of site- and case-specific
data would violate employers’ Fourth
Amendment rights. However, as
discussed above in Section II, Legal
Authority, the Fourth Amendment
protects against government searches
and seizures of private property only
when a person has a legitimate
expectation of privacy related to the
thing being searched or seized. There is
little or no expectation of privacy for
records of occupational injuries and
illnesses kept in compliance with OSHA
regulations, which employers are legally
required to disclose to OSHA and others
on request. Moreover, even if there were
an expectation of privacy in these
records, the Fourth Amendment
prohibits only unreasonable incursions
by the government. The test for
reasonableness requires balancing the
need to search against the invasion that
the search entails (see Camara v. Mun.
Ct. of City & Cnty. of San Francisco, 387
U.S. 523, 536–537 (1967)). The
information submission requirement in
this final rule is reasonable. As
explained in Section II, Legal Authority,
the submission requirement serves a
substantial government interest in
protecting the health and safety of
workers, has a strong statutory basis,
and uses reasonable, objective criteria
for determining which employers must
report information to OSHA. In
addition, again, as noted above and
below, the submission requirement
results in little to no invasion of
employer or establishment privacy
given that employers must already
retain these forms and provide them to
multiple individuals and entities upon
request.
OSHA also received a comment from
the U.S. Chamber of Commerce (the
Chamber) asserting that OSHA’s use of
injury and illness data submitted under
the proposed rule for enforcement
purposes would violate employers’
Fourth Amendment rights. The
PO 00000
Frm 00075
Fmt 4701
Sfmt 4700
47327
Chamber argued that OSHA’s use of the
information collected for enforcement
purposes will fail to constitute a
‘‘neutral administrative scheme’’ and
will thus violate the Supreme Court’s
holding in Marshall v. Barlow’s Inc., 436
U.S. 307 (1978) (Docket ID 0088,
Attachment 2). Additionally, the
Chamber maintained that the raw data
to be collected under the proposed rule
would fail to provide any defensible
neutral predicate for enforcement
decisions: ‘‘Under this Proposed Rule,
OSHA will be able to target any
employer that submits a reportable
injury or illness for any reason the
agency chooses, or for no reason at all,
under this unlimited discretion it has
sought to grant itself to ‘‘identify
workplaces where workers are at great
risk.’’ ’’ (Docket ID 0088, Attachment 2
(quoting 78 FR 67256)).
In response, OSHA notes that
Barlow’s concerned the question of
whether OSHA must have a warrant to
enter and inspect the nonpublic areas of
a worksite without the employer’s
consent. Section 1904.41 of this final
rule involves electronic submission of
injury and illness recordkeeping data;
no entry of premises or compliance
officer decision-making is involved.
Thus, the Barlow’s decision provides
very little support for the Chamber’s
sweeping Fourth Amendment objections
(see Donovan v. Lone Steer, Inc., 464
U.S. 408, 414 (1984) (reasonableness of
a subpoena is not to be determined on
the basis of physical entry law, because
subpoena requests for information
involve no entry into nonpublic areas)).
Moreover, the final rule is limited in
scope and leaves OSHA with limited
discretion. The recordkeeping
information required to be submitted is
highly relevant to accomplishing
OSHA’s statutory mission. The
submission of recordkeeping data is
accomplished through remote electronic
transmittal, without any intrusion of the
employer’s premises by OSHA, and is
not unduly burdensome. Also, as noted
above, all of the injury and illness
information establishments will be
required to submit under this final rule
will be taken from records employers
are already required to create, maintain,
post, and provide to employees,
employee representatives, and
government officials upon request,
which means the employer has a
reduced expectation of privacy in the
information.
With respect to the issue of
enforcement, OSHA disagrees with the
Chamber’s Fourth Amendment
objection that the agency will target
employers ‘‘for any reason’’ simply
because they submit injury and illness
E:\FR\FM\21JYR2.SGM
21JYR2
47328
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
data. Instead, OSHA plans to continue
the practice of using a neutral-based
scheme for identifying employers and
industries for greater enforcement
attention. More specifically, the agency
will use the data submitted by
employers under this final rule in
essentially the same manner in which
OSHA has used data from the ODI and
the current collection of Form 300A
data in all of its iterations of the SiteSpecific Targeting (SST) program. The
SST includes for selection
establishments that meet predetermined injury and illness rate
thresholds. All establishments at or
above the threshold are eligible for
inspection. Establishments in this pool
are then randomly selected for
inspection. In the future, OSHA plans to
analyze the recordkeeping data
submitted by employers to identify
injury and illness trends, establish
neutral criteria to determine which
employers may be inspected, and then
make appropriate decisions regarding
enforcement efforts based on those
criteria. OSHA also notes that the
agency currently uses establishmentspecific fatality, injury, and illness
reports submitted by employers under
§ 1904.39 to target enforcement and
compliance assistance resources. As
with the SST and National Emphasis
programs, a neutral-based scheme is
used to identify which establishments
are inspected and which fall under a
compliance assistance program.
Accordingly, OSHA’s using injury and
illness recordkeeping data to target
employers for inspection will not be
arbitrary or unconstitutional under the
Fourth Amendment.
ddrumheller on DSK120RN23PROD with RULES2
c. The Fifth Amendment
One commenter raised concerns that
the proposed rule would violate the
Fifth Amendment’s requirement that the
Federal Government ensure equal
protection. Specifically, Hunter
Cisiewski commented that the proposal
to remove the requirement from former
§ 1904.41(a)(1) for certain
establishments with 250 or more
employees to electronically submit
Form 300A data, ‘‘would deprive
workers in the affected industries of
holding their employers accountable to
produce workplace related injury data
to OSHA while simultaneously
providing this protection to workers in
similar industries’’ and ‘‘presents no
reason for why employees in these
affected industries should no longer
have the guarantee that their employers
will report workplace injury and illness
data to the governing agency’’ (Docket
ID 0024).
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
As explained in Section III.A of this
Summary and Explanation, OSHA has
decided not to make the proposed
change of restricting the universe of
large establishments that are required to
submit data from Form 300A. Instead,
the agency will maintain the
requirement for all establishments with
250 or more employees that are covered
by part 1904 to submit the information
from their OSHA Form 300A to OSHA,
or its designee, once a year. Therefore,
although OSHA disagrees with this
commenter’s assertion that the proposal
would have violated the Fifth
Amendment’s guarantee of equal
protection had it been finalized, the
agency finds that this particular
comment is moot.
d. OSHA’s Authority To Publish
Information Submitted Under This Rule
Several commenters asserted that
OSHA lacks the statutory authority
under the OSH Act to publish a
database that makes submitted injury
and illness recordkeeping data available
to the general public (Docket IDs 0050,
0059, 0071, 0086, 0088, 0090). These
commenters acknowledged that
Sections 8 and 24 of the OSH Act
provide the Secretary of Labor with
authority to issue regulations requiring
employers to maintain accurate records
of work-related injuries and illnesses.
However, according to these
commenters, nothing in the OSH Act
authorizes OSHA to publish
establishment-specific injury and illness
records on a public website. The
National Retail Federation (NRF) stated:
‘‘NRF believes the NPRM itself is
fundamentally flawed in that the agency
does not have the statutory authority to
publish the data as proposed’’ (Docket
ID 0090). The National Propane Gas
Association commented: ‘‘Lastly, the
agency radically interprets its authority
to justify the publicly accessible
website. In the NPRM, OSHA argues
that its general purpose justifies any
rulemaking that presents the potential to
improve safety. The general purpose of
the agency to improve workplace safety
is not equivalent to a foregone
conclusion that any proposal by the
agency will result in improvements to
workplace safety. The NPRM fails to
present information to demonstrate that
public shaming is an effective means to
improve workplace safety.’’ (Docket ID
0050).
Similarly, NAHB pointed to other
statutes, such as the Federal Coal Mine
Safety and Health Act of 1969, Public
Law 91–173 (December 30, 1969), which
it maintains provided more express
authority to publish records than the
OSH Act (Docket ID 0059). NAHB
PO 00000
Frm 00076
Fmt 4701
Sfmt 4700
further argues that the language in the
OSH Act only authorizes OSHA to
publish analysis, not ‘‘raw data’’ (Docket
ID 0059).
As OSHA stated in the 2016 final
recordkeeping rule, the OSH Act
provides ample statutory authority for
OSHA to issue this final rule and
publish the submitted data. As
explained in Section II, Legal Authority,
the following provisions of the OSH Act
give the Secretary of Labor broad
authority to issue regulations that
address the recording and reporting of
occupational injuries and illnesses.
Section 2(b)(12) of the Act states that
one of the purposes of the OSH Act is
to ensure safe and healthy working
conditions through appropriate
reporting procedures designed to further
the objectives of the OSH Act and
accurately characterize the nature of
workplace safety and health hazards (29
U.S.C. 651(b)(12)).
Section 8(c)(1) requires employers to
create and retain the records that OSHA
has specified are necessary and
appropriate either for the Act’s
enforcement or to develop information
related to the underlying reasons for and
prevention of work-related illnesses and
accidents (29 U.S.C. 657(c)(1)). Section
8(c)(1) also requires employers to make
such records available to the Secretary.
The authorization to the Secretary to
prescribe such recordkeeping
regulations as he considers ‘‘necessary
or appropriate’’ emphasizes the breadth
of the Secretary’s discretion in
implementing the OSH Act. Section
8(c)(2) further tasks the Secretary with
promulgating regulations which require
employers to keep accurate records of,
and to make periodic reports on,
occupational illnesses, injuries, and
deaths (29 U.S.C. 657(c)(2)).
The grant of authority in Section
8(g)(1) is particularly pertinent to
OSHA’s stated intention to publish the
collected information online. Section
8(g)(1) authorizes the Secretary to
compile, analyze, and publish, either in
summary or detailed form, all reports or
information the Secretary obtains under
section 8 of the OSH Act. Section 8(g)(2)
of the Act generally empowers the
Secretary to promulgate any rules and
regulations that the Secretary
determines are necessary to perform the
Secretary’s duties under the OSH Act
(29 U.S.C. 657(g)(2)).
Section 24 contains a related grant of
regulatory authority. Section 24(a)
directs the Secretary to create and
maintain an effective program of
collection, compilation and analysis of
work-related safety and health statistics.
In addition, Section 24(a) states that the
Secretary shall compile accurate
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
statistics on occupational illnesses and
injuries (29 U.S.C. 673(a)). Finally,
Section 24(e) provides that, based on the
records the employers create and retain
in accordance with Section 8(c) of the
OSH Act, employers must file, with the
Secretary, the reports prescribed by
regulation as necessary to carry out the
Secretary’s functions under the OSH Act
(29 U.S.C. 673(e)). Given the numerous
statutory provisions authorizing and
requiring OSHA to collect information
about occupational safety and health,
along with the provision (Section
8(g)(1)) specifically addressing the
publication of such information, it is
clear that Congress determined that both
collection and publication of this
information were critical to OSHA’s
mission of protecting the health and
safety of the nation’s workers.
In addition, as described in Section
III.B of this Summary and Explanation,
OSHA has made the determination that
electronic submission and publication
of injury and illness recordkeeping data
are ‘‘necessary and appropriate’’ for the
enforcement of the OSH Act and for
gathering and sharing information
regarding the causes or prevention of
occupational accidents or illnesses.
Where an agency is authorized to
prescribe regulations ‘‘necessary’’ to
implement a statutory provision or
purpose, a regulation promulgated
under such authority is valid ‘‘so long
it is reasonably related to the enabling
legislation’’ (Morning v. Family
Publication Service, Inc., 441 U.S. 356,
359 (1973)).
OSHA further notes that, contrary to
comments made by some commenters,
and as explained above, the final rule
will not result in the publication of raw
injury and illness recordkeeping data or
the release of records containing
personally identifiable information or
confidential commercial and/or
proprietary information. The release and
publication of submitted injury and
illness recordkeeping data will be
conducted in accordance with
applicable Federal law (see discussion
above in this preamble). The purpose of
increasing access to injury and illness
report data is not to conduct public
shaming, but rather to allow employers
to compare their safety records to other
employers, enable employees to gain
greater awareness of the hazards and
safety records in their workplaces
without fear of retribution, and pursue
the numerous other safety and healthrelated purposes discussed in this
rulemaking.
Many commenters stated that
collection and publication of detailed
injury and illness data will support the
OSH Act’s goals of reducing
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
occupational accidents and illnesses
through greater understanding,
prevention, and effective enforcement
(e.g., Docket IDs 0010, 0011, 0012, 0024,
0029, 0030, 0031, 0035, Attachment 2,
0045, Attachment 1, 0048, 0049,
Attachment 1). The Seventeen AGs
summarized the ways that publication
of data will enhance the effectiveness of
OSHA’s efforts to achieve the purposes
of the OSH Act: ‘‘Requiring the
submission of certain data from Forms
300 and 301, in addition to the
summary Form 300A, will provide the
public with injury-specific data that is
critical for helping workers, employers,
regulators, researchers, and consumers
understand and prevent occupational
injuries and illnesses. . . . These [casespecific] fields paint a far more detailed
picture of the nature and severity of
workplace safety incidents and risks.
The proposed rule recognizes the
importance of this more detailed
information, which will help OSHA and
States better target their workplace
safety and enforcement programs;
encourage employers to abate workplace
hazards; empower workers to identify
risks and demand improvements; and
provide information to researchers who
work on occupational safety and
health.’’ (Docket ID 0045).
OSHA agrees. In sum, publication of
the data required to be submitted under
this final rule is clearly within the broad
authority granted the agency by the OSH
Act.
OSHA also received comments
arguing that the online posting of
covered employers’ injury and illness
recordkeeping data violates the
Confidential Information Protection and
Statistical Efficiency Act of 2002
(CIPSEA) (Pub. L. 107–347, December
17, 2002) (Docket ID 0088, Attachment
2). For example, the Chamber of
Commerce noted that CIPSEA prohibits
BLS from releasing establishmentspecific injury and illness data to the
general public or to OSHA, and that
OSHA has not adequately addressed
how the release of part 1904 information
under this rulemaking is consistent with
the Congressional mandate expressed in
the law.
In response, OSHA notes that CIPSEA
provides strong confidentiality
protections for statistical information
collections that are conducted or
sponsored by Federal agencies. The law
prevents the disclosure of data or
information in identifiable form if the
information is acquired by an agency
under a pledge of confidentiality for
exclusively statistical purposes (see
Section 512(b)(1)). BLS, whose mission
is to collect, process, analyze, and
disseminate statistical information, uses
PO 00000
Frm 00077
Fmt 4701
Sfmt 4700
47329
a pledge of confidentiality when
requesting occupational injury and
illness information from respondents
under the BLS Survey.
The provisions of CIPSEA apply when
a Federal agency both pledges to protect
the confidentiality of the information it
acquires and uses the information only
for statistical purposes. Conversely, the
provisions of CIPSEA do not apply if
information is collected or used by a
Federal agency for any non-statistical
purpose. As noted elsewhere in this
document, the information collected
and published by OSHA in the final rule
will be used for several non-statistical
purposes, including for the targeting of
OSHA enforcement activities. Therefore,
the CIPSEA confidentiality provisions
are not applicable to the final rule.
12. Administrative Issues
a. Public Hearing
The Chamber of Commerce
recommended that OSHA hold formal
public hearings throughout the United
States for this rulemaking (Docket ID
0088, Attachment 2). The Chamber felt
that, given both the burden on
employers and the far-reaching
implications of publishing confidential
and proprietary information, formal
public hearings were necessary to give
people outside Washington, DC the
opportunity to participate in the
rulemaking process. Additionally, the
National Propane Gas Association
commented that OSHA should hold
‘‘public listening sessions to solicit
more concepts from employers,
employees, and other stakeholders’’
(Docket ID 0050).
OSHA considered these requests and
is not persuaded that hearings or public
listening sessions are required or
necessary. First, as to whether a hearing
is required, because this rulemaking
involves a regulation rather than a
standard, it is governed by the notice
and comment requirements in the APA
(5 U.S.C. 553) rather than Section 6 of
the OSH Act (29 U.S.C. 655) and 29 CFR
1911.11. Section 6 of the OSH Act and
29 CFR 1911.11 only apply to
promulgating, modifying, or revoking
occupational safety and health
standards. Therefore, the OSH Act’s
requirement to hold an informal public
hearing (29 U.S.C. 655(b)(3)) on a
proposed rule, when requested, does not
apply to this rulemaking.
Similarly, Section 553 of the APA
does not require a public hearing.
Instead, it states that the agency must
‘‘give interested persons an opportunity
to participate in the rulemaking through
submission of written data, views, or
arguments with or without opportunity
E:\FR\FM\21JYR2.SGM
21JYR2
47330
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
ddrumheller on DSK120RN23PROD with RULES2
for oral presentation’’ (5 U.S.C. 553(c)).
In the NPRM, OSHA invited the public
to submit written comments on all
aspects of the proposal and received 87
comments in response (see 87 FR
18555). OSHA believes that interested
parties had a full and fair opportunity
to participate in the rulemaking and
comment on the proposed rule through
the submission of written comments.
This belief is supported by the fact that
OSHA extended the comment period for
an additional thirty days based on
requests from the public (87 FR 31793).
With that extension, interested parties
were afforded 92 days to review and
comment on OSHA’s proposal. OSHA
did not receive any requests to further
extend the comment period.
Second, as to the necessity of the
hearing to provide interested parties
outside of Washington, DC an
opportunity to participate in the
rulemaking process, or holding public
listening sessions, OSHA does not
believe it needs to do so for the same
reasons it does not find that the APA
requires a hearing. Specifically, the
opportunity for notice and comment
afforded by the NPRM was sufficient to
both allow participation by interested
parties and fully develop the record.
b. The Advisory Committee on
Construction Safety and Health
(ACCSH)
The National Association of
Homebuilders (NAHB) commented that
OSHA must seek input from the
Advisory Committee on Construction
Safety and Health (ACCSH) during this
rulemaking ‘‘to better understand the
impacts and consequences of its
proposal’’ (Docket ID 0059).
As pointed out by NAHB in their
comments, ACCSH is a continuing
advisory body established under Section
3704(d) of the Contract Work Hours and
Safety Standards Act (40 U.S.C. 3701 et
seq., commonly known as the
Construction Safety Act), to advise the
Secretary of Labor and Assistant
Secretary of Labor for Occupational
Safety and Health in the formulation of
construction safety and health standards
and policy matters affecting federally
financed or assisted construction. In
addition, OSHA’s regulation at 29 CFR
1912.3 provides that OSHA must
consult with ACCSH regarding the
setting of construction standards under
the OSH Act.
OSHA notes that both the
Construction Safety Act (40 U.S.C.
3704(a)) and 29 CFR 1912.3 only require
OSHA to consult with ACCSH regarding
the formulation of new construction
‘‘standards.’’ As discussed above, the
requirements in 29 CFR part 1904 are
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
regulations, not standards. Therefore, as
NAHB itself acknowledged in its
comment (‘‘the statute and the agency’s
own regulations only require OSHA to
consult with the ACCSH regarding the
setting of construction standards, and
not regulations’’ (Docket ID 0059)),
OSHA was not required to consult with
ACCSH in formulating this final
regulation. In addition, as noted in the
NPRM, OSHA consulted and received
advice from the National Advisory
Council on Occupational Safety and
Health (NACOSH) prior to issuing the
proposed rule. NACOSH indicated its
support for OSHA’s efforts, in
consultation with NIOSH, to modernize
the system for collection of injury and
illness data to assure that the data are
timely, complete, and accurate, as well
as accessible and useful to employees,
employers, government agencies, and
members of the public.
c. Reasonable Alternatives Considered
Associated Builders and Contractors
commented that under the APA, OSHA
is required ‘‘to consider reasonable
alternatives to its proposed reversal of
the current reporting requirements,’’
and asserts that ‘‘the failure to do so will
likely lead to nullification upon judicial
review’’ (Docket ID 0071). In response,
OSHA notes that the Supreme Court has
held that an agency is not required to
‘‘consider all policy alternatives in
reaching [its] decision,’’ but when an
agency rescinds a prior policy, it must
consider the alternatives that are
‘‘within the ambit of the existing
[policy]’’ (Dep’t of Homeland Security v.
Regents of the Univ. of Cal., 140 S. Ct.
1891, 1913 (2020) (alterations in
original)).
The commenter does not point to a
particular policy alternative that OSHA
failed to consider, nor is OSHA required
to consider every possible policy
alternative. To the extent the comment
suggests that OSHA should have
considered, as an alternative,
maintaining the requirements of the
2019 rule, OSHA has complied with this
requirement. As explained in the
NPRM, OSHA proposed requiring
establishments with 100 or more
employees at any time during the
previous calendar year, and in an
industry listed in proposed appendix B
to subpart E, to electronically submit
certain information from OSHA Forms
300, 301, and 300A (87 FR 18537). This
was a change from the 2019 final rule,
which had removed the requirement for
the annual electronic submission of 300
and 301 data to OSHA because of both
the risk of disclosure of sensitive worker
information and resource concerns. In
the NPRM, OSHA explained that it had
PO 00000
Frm 00078
Fmt 4701
Sfmt 4700
preliminarily determined that the
reasons given in the preamble to the
2019 rule for the removal of the 300 and
301 data submission requirement were
no longer compelling. The agency
discussed in detail the ways in which
the benefits of collecting data from the
300 and 301 forms outweighed the
slight risk to employee privacy and
explained how technological
improvements have mitigated resource
concerns (87 FR 18537–18542). The
NPRM also explained the ways in which
publication of 300 and 301 data may
benefit interested parties and improve
worker safety and health (87 FR 18542–
18543). Furthermore, in Section III.B of
this Summary and Explanation, OSHA
has discussed these issues in further
detail and responded to a number of
comments opposing the new reporting
requirement. By analyzing these issues
and responding to comments, OSHA has
weighed the proposal against
maintaining the status quo and provided
a well-reasoned explanation for its
decision, which illustrates OSHA’s
consideration of alternatives to its
proposal and fulfills its obligations
under the APA.
OSHA also considered alternatives to
several aspects of this final rule. In the
preliminary economic analysis of the
NPRM, the agency explained that
appendix A is based on 2011–2013
injury rates from the SOII, and that
OSHA was not proposing to modify
appendix A because it took several years
for the regulated community to
understand which industries were
required to submit information and
which were not (87 FR 18552).
However, OSHA asked for comment on
a possible alternative: updating
appendix A to reflect 2017–2019 injury
rates, which would result in the
addition of one industry and the
removal of 13 (87 FR 18552–53).
Additionally, OSHA explained that the
2016 final rule did not include a
requirement to regularly update the list
of designated industries in appendix A
because it believed that moving
industries in and out of the appendix
would be confusing (87 FR 18553). The
agency requested comment on another
possible alternative: regularly updating
the list of designated industries in
proposed appendix B (87 FR 18553). In
Section III.A of this Summary and
Explanation, OSHA has responded to
the comments received in response to
the first alternative and provided
explanations for its decision not to
adopt the alternative. Likewise, in
Section III.B of this Summary and
Explanation, OSHA responded to
comments received in response to the
E:\FR\FM\21JYR2.SGM
21JYR2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
second alternative, and its decision not
to adopt that alternative.
OSHA also proposed to change the
requirement in § 1904.41(a)(1) that
required establishments with 250 or
more employees, in all industries
routinely required to keep OSHA injury
and illness records, to electronically
submit information from their 300A to
OSHA once a year. The proposal would
have required this submission only for
establishments in industries listed in
appendix A, thus reducing the number
of establishments required to
electronically submit 300A data (see 87
FR 18536). The agency received many
comments on the proposal, which
overwhelmingly opposed it, and urged
OSHA to retain the existing requirement
for establishments with 250 or more
employees that are normally required to
report under part 1904 to submit data
from their 300As. In Section III.A of this
Summary and Explanation, these
comments are discussed in greater
detail, as is OSHA’s explanation for
rejecting the proposed change and
retaining current reporting requirements
for Form 300A data.
OSHA’s presentation of proposed
alternatives, analysis of comments, and
ultimate decisions to reject those
proposals illustrates OSHA’s
consideration of alternatives within the
ambit of its current policy. For these
reasons, OSHA has met its obligations
under the APA to consider alternatives
to its proposal.
ddrumheller on DSK120RN23PROD with RULES2
IV. Final Economic Analysis and
Regulatory Flexibility Certification
A. Introduction
As described above, OSHA is
amending its recordkeeping regulations
in 29 CFR part 1904 to revise the
requirements for the electronic
submission of information from
employers’ injury and illness
recordkeeping forms. Specifically,
OSHA is amending its recordkeeping
regulation at § 1904.41 to require
establishments with 100 or more
employees in certain designated
industries (i.e., those on appendix B in
subpart E of part 1904) to electronically
submit information from their OSHA
Forms 300 and 301 to OSHA once a
year. This is the only new requirement
of the final rule, and therefore the only
one that imposes new costs on
employers. The other main provisions
in the final rule, which involve
submission of data from the Form 300A
annual summary, represent nonsubstantive changes to requirements
that already exist. OSHA intends to post
the data from the annual electronic
submissions on a public website after
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
identifying and removing information
that could reasonably be expected to
identify individuals directly, such as
individuals’ names and contact
information.
Executive Orders 12866 and 13563
direct agencies to assess the costs and
benefits of the intended regulation and,
if regulation is necessary, to select
regulatory approaches that maximize
net benefits (including potential
economic, environmental, and public
health and safety effects; distributive
impacts; and equity). Executive Order
13563 emphasizes the importance of
quantifying both costs and benefits, of
reducing costs, of harmonizing rules,
and of promoting flexibility. This rule is
not an economically significant
regulatory action under Section 3(f) of
Executive Order 12866 and has been
reviewed by the Office of Information
and Regulatory Affairs in the Office of
Management and Budget, as required by
executive order.
As explained in this analysis, OSHA
estimates that this rule will have
economic costs of $7.7 million per year.
These costs include $7.1 million per
year to the private sector to become
familiar with the rule’s requirements,
update software, and submit forms
electronically to OSHA, and $0.6
million per year to the government for
processing the data, updating and
maintaining software, and providing
additional IT support. OSHA estimates
average costs of $136 per year for
affected establishments (those with 100
or more employees in NAICS industries
listed on appendix B of subpart E of part
1904), annualized over 10 years with a
discount rate of seven percent.
The final rule is not a significant
regulatory action under Executive Order
12866 Section 3(f)(1), and it is not a
‘‘major rule’’ under the Congressional
Review Act (5 U.S.C. 801 et seq.). The
agency estimates that the rulemaking
imposes far less than $100 million in
annual economic costs. In addition, it
does not meet any of the other criteria
specified by the Congressional Review
Act for an economically significant
regulatory action or major rule.18 This
Final Economic Analysis (FEA)
18 The Chamber of Commerce objected to the
preliminary finding that this rule is not an
economically significant regulatory action under
Executive Order 12866 (Ex. 88), arguing that the
first-year costs of compliance require such a
finding. This assertion is based on the Chamber of
Commerce’s own estimates of the costs of
compliance with this rule, which are significantly
higher than OSHA’s. The Chamber estimates firstyear costs of $130 million, whereas OSHA’s
estimated annual costs in the FEA to affected
employers are just over $7 million. The Chamber of
Commerce’s more specific comments regarding
costs are discussed throughout this section.
PO 00000
Frm 00079
Fmt 4701
Sfmt 4700
47331
addresses the costs, benefits, and
economic impacts of the rule.
B. Changes From the Preliminary
Economic Analysis (PEA) (Reflecting
Changes in the Final Rule From the
Proposal)
The final rule makes limited
substantive changes to employer
obligations when compared to the
requirements that were costed as part of
the proposed rule. These changes, as
described in more detail below, are to
the requirement for establishments with
250 or more employees to submit data
from their 300A annual summaries to
OSHA and to the industries included on
appendix B to subpart E of part 1904.
More generally, the final rule does not
add to or change any employer’s
obligation to complete, retain, and
certify injury and illness records under
OSHA’s regulations at 29 CFR part 1904.
The final rule also does not add to or
change the recording criteria or
definitions for these records. Nor does
the final rule change the requirement to
electronically submit information from
the OSHA 300A Annual Summary. As
discussed in Section III.A of the
Summary and Explanation, the final
rule does not remove the reporting
requirement from any establishment
that is currently required to
electronically report Form 300A
information to OSHA nor impose a new
reporting requirement on any
establishment that is not currently
required to electronically report Form
300A information to OSHA.
1. Continued Submission of OSHA
300A Annual Summaries by
Establishments With 250 or More
Employees
In the NPRM, OSHA proposed
removing the requirement for
establishments with 250 or more
employees in select industries to submit
information from their OSHA 300A
annual summary forms electronically.
To reflect this proposed change, OSHA
estimated in its PEA that the reduction
in the number of establishments
required to submit this information
would result in a total annual cost
savings of $27,077 (87 FR 18549). For
this final rule, as explained in Section
III.A of the Summary and Explanation,
OSHA has decided not to make the
proposed change and to retain the
existing requirement. Therefore, these
cost savings have been removed from
the cost analysis.
2. Additional Appendix B Industries
In the NPRM, the agency proposed a
selected list of industries, in appendix
B, to designate which establishments
E:\FR\FM\21JYR2.SGM
21JYR2
47332
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
with 100 or more employees would
have to submit information from their
OSHA Form 300 Log and Form 301
Incident Reports electronically. The
industries on proposed appendix B were
based on the average total case rate
(TCR) of injuries and illnesses in each
industry. Because the requirement for
establishments in industries on
appendix B to submit data from Forms
300 and 301 is a new requirement,
OSHA analyzed the costs and impacts to
establishments in those industries in the
PEA. For the final rule, OSHA has
decided to add additional industries to
the list of industries that were on
appendix B in the proposed rule; these
additional industries are listed in Table
1, below. As explained in Section III.B.1
of the Summary and Explanation, OSHA
has decided to add industries from
appendix A that meet the criteria of
having either a high DART rate (defined
as 1.5 times the private industry DART
rate) or a high fatality rate (defined as
1.5 times the private industry fatality
rate). Employers that have 100 or more
employees and are in an industry listed
on final appendix B must submit
information from their Forms 300 and
301 to OSHA, electronically, on an
annual basis.
TABLE 1—INDUSTRIES ADDED TO APPENDIX B
Industry
High DART
rate criteria
Logging ............................................................................................................................
Hunting and Trapping ......................................................................................................
Other Furniture Related Product Manufacturing .............................................................
Miscellaneous Durable Goods Merchant Wholesalers ...................................................
Taxi and Limousine Service ............................................................................................
Other Support Activities for Transportation .....................................................................
No ..................
Yes .................
Yes .................
No ..................
No ..................
Yes .................
2017 NAICS 4-digit
1133
1142
3379
4239
4853
4889
..........................
..........................
..........................
..........................
..........................
..........................
With the additions in Table 1, above,
the final appendix B to subpart E is as
follows:
ddrumheller on DSK120RN23PROD with RULES2
NAICS
1111
1112
1113
1114
1119
1121
1122
1123
1129
1133
1141
1142
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
Industry
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
VerDate Sep<11>2014
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.
Logging.
Fishing.
Hunting and Trapping.
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 (except Aluminum) Production and Processing.
Foundries.
Forging and Stamping.
Architectural and Structural Metals Manufacturing.
Boiler, Tank, and Shipping Container Manufacturing.
21:22 Jul 20, 2023
Jkt 259001
PO 00000
Frm 00080
Fmt 4701
Sfmt 4700
E:\FR\FM\21JYR2.SGM
21JYR2
High fatality
rate criteria
Yes.
No.
No.
Yes.
Yes.
No.
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
NAICS
3325
3326
3327
3328
3331
3335
3361
3362
3363
3366
3371
3372
3379
4231
4233
4235
4239
4244
4248
4413
4422
4441
4442
4451
4522
4523
4533
4543
4811
4841
4842
4851
4852
4853
4854
4859
4871
4881
4883
4889
4911
4921
4931
5322
5621
5622
6219
6221
6222
6223
6231
6232
6233
6239
6243
7111
7112
7131
7211
7212
7223
Industry
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
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 (including Fixtures) Manufacturing.
Other Furniture Related Product Manufacturing.
Motor Vehicle and Motor Vehicle Parts and Supplies Merchant Wholesalers.
Lumber and Other Construction Materials Merchant Wholesalers.
Metal and Mineral (except Petroleum) Merchant Wholesalers.
Miscellaneous Durable Goods 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.
Taxi and Limousine Service.
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.
Other Support Activities for 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 (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.
Vocational Rehabilitation Services.
Performing Arts Companies.
Spectator Sports.
Amusement Parks and Arcades.
Traveler Accommodation.
RV (Recreational Vehicle) Parks and Recreational Camps.
Special Food Services.
ddrumheller on DSK120RN23PROD with RULES2
3. Updated Data
The FEA has updated data used in the
PEA to the most recent data available.
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
The data from the PEA and the updated
data used for this FEA appear in Table
2, below.
PO 00000
Frm 00081
Fmt 4701
Sfmt 4700
E:\FR\FM\21JYR2.SGM
21JYR2
47333
47334
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
TABLE 2—DATA IN THE PEA AND THE FEA
PEA estimates
FEA estimates
Name
Value
Source
Name
Value
Base Wages SOC 19–5011 ...............
$37.55 .............
BLS OEWS 5/2020 ....
Base Wages SOC 19–5011 (safety
specialist).
Base Wages 15–1252 (software developer).
Fringe Benefits Civilian ......................
Base Wages GS–13 Step 6 ..............
Fringe Benefits Government ..............
Appendix B Establishments ...............
Total Submissions ..............................
Manual Submission Time 300/301 ....
$37.86 .............
BLS OEWS 5/2021.1
$58.17 .............
BLS OEWS 5/2021.1
0.310 ...............
$55.06 .............
0.381 ...............
52,092 .............
766,257 ...........
15 minutes ......
BLS ECEC 9/2022.2
OMB 2023.3
BLS ECEC 9/2022.2
OSHA/OSA 2022.4
OSHA/OSA 2022.4
OSHA/OSA. 2022.4
Fringe Benefits Civilian ......................
Base Wages GS–13 Step 6 ...............
Fringe Benefits Government ..............
Appendix B Establishments ...............
Total Submissions ..............................
Manual Submission Time 300/301 .....
0.312 ...............
$48.78 .............
0.381 ...............
48,919 .............
718,316 ...........
10 minutes ......
BLS ECEC 6/2021 .....
OMB FY 2020 ............
BLS ECEC 6/2021 .....
OSHA/OSA 2021 ........
OSHA/OSA 2021 ........
PRA 04/22 5 ................
Source
1 BLS May 2021 Occupational Employment and Wage Statistics data, released March 31, 2022. https://www.bls.gov/oes/current/oes195011.htm#nat. Accessed October 05, 2022.
2 BLS September 2022 Employer Costs for Employee Compensation, released December 15, 2022. https://www.bls.gov/news.release/pdf/ecec.pdf. Accessed February 20, 2023.
3 OMB January 2023 Salary Table 2022–RUS. https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2023/RUS_h.pdf. Accessed
February 22, 2023.
4 Docket ID 0103.
5 Recordkeeping and Reporting Occupational Injuries and Illnesses (29 CFR part 1904). OMB Control #1218–0176.
C. Cost
§ 1904.41(a)(2): Annual Electronic
Submission of Information From OSHA
Form 300 Log of Work-Related Injuries
and Illnesses and OSHA Form 301
Injury and Illness Incident Report by
Establishments With 100 or More
Employees in Designated Industries
OSHA is retaining the same cost
methodology in this FEA as in the PEA.
In the PEA, the agency estimated the
cost of electronic data submission per
establishment by multiplying the hourly
compensation (in dollars) of the person
expected to submit the records
electronically by the time required for
the submission. OSHA then multiplied
this cost per establishment by the
estimated number of Appendix B
establishments required to submit data,
resulting in the total estimated cost of
this part of the proposed rule.
OSHA also calculated the estimated
cost for establishments to become
familiar with the process of
electronically submitting the required
information. The total estimated cost of
this part of the proposed rule was
calculated by multiplying the hourly
wages (in dollars) of the person
expected to submit the records
electronically by the time required to
learn how to use OSHA’s system. The
resulting value was then multiplied by
the number of establishments in
appendix B (87 FR 18549–551).
ddrumheller on DSK120RN23PROD with RULES2
1. Wages
a. Wage Estimates in the PEA
OSHA has retained the same wage
assumptions and methodology from the
PEA but has updated the figures to
include current data. In the PEA, the
agency estimated the compensation of
the person expected to perform the task
of electronic data submission, assuming
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
that this task would be performed by an
Occupational Health and Safety
Specialist. As indicated in Table 2,
above, the agency used BLS’s
Occupational Employment and Wage
Statistics (OEWS) data to determine that
the mean hourly wage for an
Occupational Health and Safety
Specialist was $37.55 per hour. Then,
OSHA used June 2021 data from the
BLS National Compensation Survey to
derive a mean fringe benefit factor of
1.45 for civilian workers in general.19
OSHA then multiplied the mean hourly
wage ($37.55) by the mean fringe benefit
factor (1.45) to obtain an estimated total
compensation (wages and benefits) for
Occupational Health and Safety
Specialists of $54.58 per hour ([$37.55
per hour] × 1.45). OSHA next applied a
17 percent overhead rate to the base
wage ([$37.55 per hour] × 0.17), totaling
$6.38 per hour.20 The $6.38 was added
to the total compensation ($54.58),
yielding a fully loaded wage rate of
$60.96 [$54.58 + $6.38] per hour.
b. Comments on OSHA’s Wage
Estimates
Some commenters expressed the
opinion that the wage rate estimates
used in the PEA were too low. For
example, the National Federation of
Independent Business (NFIB) and the
Chamber of Commerce commented that
the potential impacts from OSHA
publishing work-related injury and
illness information would require that
19 Fringe benefit factor calculated as [1/(1–0.312)],
where 0.312 is the proportion of the average total
benefits constituted by fringe benefits among
civilian workers in all industries, as reported on
Table 2 of the BLS’s ECEC report, June 2021:
https://www.bls.gov/news.release/archives/ecec_
09162021.pdf.
20 Seventeen percent is OSHA’s standard estimate
for the overhead cost incurred by the average
employer.
PO 00000
Frm 00082
Fmt 4701
Sfmt 4700
companies have senior executives and
legal counsel review the logs for both
employee privacy and reputational
harm (Docket IDs 0036, 0088). The
Chamber estimated that involving
executives and legal counsel would
increase the wage rate used for this
analysis to $67.01 per hour (Docket ID
0088).
OSHA concludes that an appropriate
wage rate has been used for this rule.
While some companies may choose to
involve executives or lawyers in the
submission process, others will delegate
duties to administrative assistants or
office managers. OSHA considers the
wage rate for Occupational Safety and
Health Specialists to represent a rough
average among the wages for various
possible job categories that might
submit the data under this rule.21 It
should be emphasized, however, that
this wage is intended to reflect only the
cost of entering the data to submit it
electronically to the agency—the
employer is already responsible for
recording the data correctly. If some
employers consider it necessary for
employees in very high wage categories
to review the cases that are already
required to be recorded, that is not an
incremental cost of this rule.22 In
addition, the Chamber of Commerce
commented that OSHA is using an
incorrect overhead estimate when
calculating the loaded wage of the
21 This wage category has also been widely used
for similar administrative purposes for other OSHA
rulemakings, without controversy (e.g., the 2016
recordkeeping rulemaking—see 81 CFR 29675).
22 One commenter even suggested the physicians
may be needed to determine whether injuries were
work-related now that the injury and illness reports
will be made public (Docket ID 0088). However,
like related discussions elsewhere in this FEA, this
obligation (i.e., the need to determine workrelatedness of an injury) existed prior to this rule.
Because it is not an additional cost created by this
rule, it is not included.
E:\FR\FM\21JYR2.SGM
21JYR2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
Occupational Health and Safety
Specialist (Docket ID 0088). It argued
that the correct factor for computation of
overhead is 0.6949 (rather than OSHA’s
longstanding reliance on the PEA’s 0.17
for overhead costs), which the
commenter sourced from the Bureau of
Economic Analysis, Table 7 (Relation of
Gross Domestic Product, Gross National
Income, and National Income). The
Chamber of Commerce’s overhead factor
estimate would increase the overhead
amount from $6.38 per labor hour to
$26.09 per labor hour.
The agency believes the Chamber has
incorrectly inflated the ‘‘overhead’’ cost
factor by including what it refers to as
a ‘‘profit opportunity cost element’’
(Docket ID 0088). The overhead rate that
OSHA uses in this cost analysis (17
percent) is based on the EPA’s ‘‘Wage
Rates for Economic Analyses of the
Toxics Release Inventory Program,’’
June 10, 2002. OSHA has used this
overhead rate for several economic
impact analyses previously, and it is a
standard estimate for this agency, the
Employment and Training
Administration,23 the Wage and Hour
Division,24 and the EPA.25 As expressed
in a prior OSHA rule, OSHA does not
believe the inclusion of ‘‘profit
opportunity cost elements’’ in an
overhead estimate is appropriate in the
context of this economic analysis.26
ddrumheller on DSK120RN23PROD with RULES2
c. Wage Estimates in the FEA
For the final rule, OSHA has updated
the fully loaded wages to $61.31 per
hour, using the same calculation
method as in the PEA and the updated
data listed in Table 2, above.27
Specifically, OSHA multiplied the mean
hourly wage ($37.86) by the mean fringe
benefit factor (1.45) 28 to obtain an
estimated total compensation (wages
and benefits) for Occupational Health
23 See ETA Final Rule, Adverse Effect Wage Rate
Methodology for the Temporary Employment of H–
2A Nonimmigrants in Non-Range Occupations in
the United States, 88 FR 12760, 12788 (Feb. 28,
2023).
24 See Wage and Hour Division Final Rule,
Increasing the Minimum Wage for Federal
Contractors, 86 FR 67126, 67205 (Nov. 24, 2021).
25 For an example of an earlier OSHA economic
analysis that used the EPA overhead rate, see
OSHA’s final rule on Walking-Working Surfaces
and Personal Protective Equipment (Fall Protection
Systems) at 81 FR 82494, 82931 (Nov. 18, 2016).
26 As noted in a previous related Federal Register
notice (see 81 FR 29683), in principal, the labor
costs of affected workers reflect the opportunity
costs of that labor.
27 See Docket ID 0103 for a spreadsheet with the
full calculations. Slight discrepancies in results are
likely due to rounding.
28 The fringe benefit factor was calculated as [1/
(1–0.310)], where 0.310 is the proportion of average
total benefits constituted by fringe benefits among
civilian workers in all industries, as reported on
Table 2, above.
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
and Safety Specialists of $54.87 per
hour ([$37.86 per hour] × 1.45). OSHA
next applied a 17 percent overhead rate
to the base wage ([$37.86 per hour] ×
0.17), totaling $6.44.29 The $6.44 was
added to the total compensation
($54.87) yielding a fully loaded wage
rate of $61.31 [$54.87 + $6.44]. In
response to comments, OSHA has added
additional costs to the FEA that use
loaded wages for a Software Developer
at $94.19,30 based on an hourly base
wage of $58.17, in the calculation of
those costs.
2. Estimated Case Counts
In the PEA, based on the 2020 data
collection of 2019 OSHA Form 300A
data, OSHA estimated that
establishments with 100 or more
employees, in proposed appendix B
industries, reported 718,316 cases to
OSHA. The Phylmar Regulatory
Roundtable (PRR) asserted, without
pointing to specific support, that
‘‘industries required to submit have a
history of higher incident rates’’ and
questioned the average of 14.7 cases per
establishment on this basis (Docket ID
0094). PRR stated that ‘‘it does not seem
plausible that there are enough
establishments with zero cases to bring
the estimates this low.’’ In support, PRR
described several large employers, with
up to 12,000 employees each, that
recorded more than 14.7 cases (up to
155 cases) in certain years. OSHA notes
that it used the average number of cases
submitted by establishments with 100 or
more employees in NAICS industries on
appendix B. PRR’s limited examples do
not disturb the calculated averages,
which are based on data from affected
establishments. OSHA used the average
number of cases on Form 300A
submissions across all affected
establishments to represent the average
number of cases an establishment would
submit via manual entry. For this final
rule, OSHA has updated the estimate of
total cases reported by establishments
with 100 or more employees in
appendix B industries to 766,257
cases,31 as mentioned in Table 2, above.
This estimate has been updated from the
PEA. OSHA has expanded the number
29 Seventeen percent is OSHA’s standard estimate
for the overhead cost incurred by the average
employer.
30 For BLS Occupational Code 15–1252 ‘‘Software
Developer,’’ total compensation is $84.30 ($58.17
mean hourly wage + $26.13 fringe benefits) plus
$9.89 in overhead [$58.17 × 0.17].]
31 OSHA’s estimate of injury and illness cases is
based on calendar year 2019 data submitted to the
agency through the Injury Tracking Application
(ITA) (Docket ID 0106). Establishments with 100 or
more employees in appendix B industries reported
a total of 766,257 recordable fatalities, injuries, and
illnesses for that year.
PO 00000
Frm 00083
Fmt 4701
Sfmt 4700
47335
of establishments to include all
establishments with at least 100
employees in industries that are on final
appendix B, which includes six
industries that were not included on
proposed appendix B.
3. Familiarization
In the PEA, OSHA estimated that
establishments would take 10 minutes,
on average, to familiarize themselves
with changes to the recordkeeping
requirements in the proposed rule.
Based on this, the agency calculated a
one-time cost for familiarization of
$497,033 [(48,919 establishments) × (10
minutes/establishment) × (1 hour/60
minutes) × ($60.96/hour)]. The number
of establishments in the PEA was based
on submissions in 2019 to the ITA for
establishments that were in the
proposed appendix B in the NPRM.
The U.S. Poultry and Egg Association,
the North American Meat Institute, the
Chamber of Commerce, and the Phylmar
Regulatory Roundtable argued that
OSHA undercounted the amount of time
required to complete rule
familiarization for the proposed rule
(Docket IDs 0054, 0070, 0088, 0094).
The Chamber of Commerce asserted that
OSHA’s estimate ‘‘ignores the
familiarization time cost that
establishments not covered will incur to
determine their non-covered status, and
it suggests an extremely optimistic but
empirically baseless view of the time
that will be required by those covered
to read the rule, review its requirements
relative to their current operations and
procedures, identify and implement
new policies and procedures to comply
with the new rule, and to train
administrative and operational
employees in their new compliance
duties’’ (Docket ID 0088). Other
commenters claimed additional time
would be required for processing by a
corporate safety department subject
matter expert (Docket ID 0054) and for
‘‘legal analysis’’ (Docket ID 0070).32
For the establishments that do not
need to submit the Form 300 and 301
data but must determine if they are
subject to the requirement, the Chamber
of Commerce estimated, based on
unspecified sources, that the 1.9 million
establishments with 10 to 99 employees
will spend 5 minutes determining that
32 One of those commenters suggested that OSHA
include costs for creating training materials and
conducting training sessions as part of
familiarization (Docket ID 0054). Another made a
more general statement that the agency’s estimate
for rule familiarization did not account for the time
it will take to prepare or implement OSHA’s
proposed changes or develop processes to comply
with the new requirements (Docket ID 0094). These
elements are discussed under Training later in this
analysis.
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
47336
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
they are not affected. According to the
Chamber of Commerce, at $1.65 per
minute, the total cost would be $15.9
million. Additionally, ‘‘for the 172,277
establishments with 100 or more
employees, on average a 15-minute
review by senior managers or in-house
legal counsel may be able to answer the
basic affected or not affected question
for an aggregate familiarization cost of
$4.3 million.’’ (Docket ID 0088).
Finally, the Chamber of Commerce
asserted that rule familiarization is more
complicated than OSHA estimates. The
commenter believed that OSHA failed to
consider that each establishment that
has determined that it is subject to the
reporting requirement ‘‘must now
consider how the new requirements
impact existing policies and procedures,
what are the risks of reputational
damage or of employee privacy
violation liability and how can those
risks be mitigated by changing policies
and procedures’’ (Docket ID 0088). For
the PEA’s estimated 48,919
establishments required to comply with
the new reporting requirement, the
commenter estimates a lower bound
estimate of 8 hours of professional time,
which would result in an aggregate cost
of $38.7 million. OSHA does not,
however, require such considerations:
the final rule has accounted for privacy
concerns (comments on costs related to
privacy are addressed later in this
section) and, as discussed later,
employers should already be familiar
with the reporting system because they
are using it to submit Form 300A data.
Furthermore, the commenter’s
recommendation of an average of 8
hours per establishment vastly exceeds
OSHA’s traditional estimates of
familiarization time. For comparison, in
the 2016 final recordkeeping rule,
OSHA included only 10 minutes for
familiarization costs, which included
the time for establishments to create
accounts and enter basic establishment
information in the ITA (see 81 FR
29680), none of which has to be done
again for purposes of complying with
the final rule at issue here.
OSHA disagrees that more than 10
minutes will be required for rule
familiarization in this case. Under the
existing recordkeeping rule, employers
are already required to keep part 1904
injury and illness records. In addition,
all establishments that will have to
submit case-specific information from
their Form 300 Log and 301 Incident
Report under this rule are already
required to submit establishment
information from their Form 300A
Annual Summary, using the same
interface (the ITA) they will use to
submit their case information. OSHA
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
intends to notify all establishments
required to submit data under the new
rule of this new obligation. In addition,
OSHA will update its online ITA
application to be consistent with this
final rule. Employers unsure about
whether they are covered by this final
rule can use this application (at https://
www.osha.gov/itareportapp) to
immediately determine their data
submission obligations. Thus, there will
be no need for establishments to spend
time to determine whether they are
affected by the final rule or not.
Altogether, OSHA concludes that 10
minutes is an appropriate amount of
time for employers to become familiar
with the rule (with assistance from
OSHA’s application or OSHA website
materials, if necessary).
OSHA has decided to retain the
assumptions and the methodology from
the PEA for this final rule. Using the
updated numbers reported in Table 2,
above, OSHA now estimates the onetime cost for familiarization as
$532,257, calculated as [(52,092
establishments) × (0.17 hours/
establishment) 33 × ($61.31/hour)].
Annualizing this rate over ten years
with a 7 percent discount rate yields an
annual cost of $75,781 34 to the private
sector.
4. Record Submission
For the time required for the data
submission in the PEA, OSHA used the
estimated unit time requirements
reported in OSHA’s paperwork burden
analysis for 29 CFR part 1904 Recording
and Reporting Occupational Injuries
and Illnesses (OMB Control Number
1218–0176). The agency estimated that
it would take 10 minutes to submit
information about each case manually;
this estimate does not apply when
establishments submit the records as
batch files, because batch files are a
means of submitting multiple cases at
one time.
In the PEA, OSHA estimated that
there would be 48,919 establishments
reporting 718,386 cases total, or 14.7
cases per establishment, on average (87
FR 18549–50). The agency estimated
that about half of all reporting
establishments (24,460) would submit
half of the total cases (359,193 cases) via
one batch file per establishment.35 This
yielded an estimated cost of $248,517
33 0.17 hours is a rounded value representing 10
minutes, or 10/60th of an hour, per establishment.
34 $62,397 annualized over ten years with a 3
percent discount rate.
35 Form 300A data submitted to OSHA through
the Injury Tracking Application (ITA) for 2019
indicated that almost half of establishments (47
percent) were already submitting their data by batch
file at that time (Docket ID 0103).
PO 00000
Frm 00084
Fmt 4701
Sfmt 4700
[(24,460 establishments) × (10 minutes/
establishment) × (1 hour/60 minutes) ×
($60.96/hour)]. The average cost per
establishment was estimated to be
$10.16 per establishment for
establishments submitting via batch file.
OSHA then estimated that the other
half of establishments (24,460) would
manually submit each case from their
establishment individually. Using the
mean of 14.7 cases per establishment
(718,386 total cases divided by 48,919
total establishments) and an estimated
time of 10 minutes per case, OSHA
estimated 147 minutes per
establishment to submit records
electronically, on an individual case
basis. This produced a total cost for
manual submission of $3,649,520
[(24,460 establishments) × (0.17 hours/
case) 36 × (14.7 cases) × ($60.96/hour)],
or $149 per establishment]. Finally,
OSHA summed the estimated batch-file
submissions ($248,517) and manual
submission ($3,649,520), which resulted
in estimated total cost of $3,898,037 to
submit the 718,316 records.
Dow, the Chamber of Commerce, and
the Phylmar Regulatory Roundtable
(PRR) commented that OSHA is
underestimating the amount of time
required for an establishment to submit
Form 300A information (Docket IDs
0054, 0088, 0094). Dow said that
establishments must spend time to
‘‘locate the website, create an account,
retrieve password, read instructions,
gather, and prepare incident
information etc.’’ (Docket ID 0054). The
commenter indicated that it would take
more than 10 minutes per case per
establishment. Specifically, it would
take 1–2 hours to prepare the
submission, and 15–20 minutes per case
to input the information because there
are more than 25 fields that must be
filled in. Dow added that when the
submission is completed via batch file,
1–2 hours is required to generate and
review the reports for submission, even
if it only takes 10 minutes to actually
upload the 300A data. It asserted that
this time estimate will only increase
with additional forms (Docket ID 0054).
The Chamber of Commerce
commented that OSHA’s reporting
burden estimate of 10 minutes per case
is not based on empirical data. It
indicated that this reporting burden
should be inclusive of the following
activities: compiling, analyzing,
preparing, reviewing internally, and
submitting the data electronically. The
Chamber’s estimate was 60 minutes per
case using a blended management and
professional rate. It maintained that its
36 0.17 hours is a rounded value representing 10
minutes, or 10/60th of an hour, per case.
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
higher time estimate accounted for the
‘‘necessity for internal review of each
case and of the final compiled reports
by various levels of management and
internal legal counsel.’’ The Chamber
added that its ‘‘more realistic estimate of
aggregate internal labor time for
preparation and review increases the
previous calculation of $11.9 million to
$71.1 million. (718,386 cases × 60
minutes per case × $1.65 per minute).’’
Finally, the Chamber suggested that
firms would need to hire outside legal
counsel to complete their review
process which the Chamber estimated
would increase costs by $4.8 million
($6.67 per minute of outside legal
counsel time) for the total estimated
718,386 cases (Docket ID 0088).
The National Federation of
Independent Businesses and the
Precision Machined Products
Association commented on the
differences in small and medium
employers compared to large employers
(Docket IDs 0036, 0055). These
commenters noted that small and
medium employers typically cannot
afford the experts, accountants, and
lawyers needed to comply with
regulations. Additionally, they asserted
that small and medium employers do
not have the resources or technology to
submit batch files and therefore must
manually input each case. The Precision
Machined Products Association added
that the cost per submission for small
and medium companies is closer to
double what OSHA estimated in the
PEA (Docket ID 0055).
The North American Meat Institute,
the Plastics Industry Association, the
Employers E-Recordkeeping Coalition,
and the Chamber of Commerce
specifically cited time spent on quality
assurance as a concern (Docket IDs
0070, 0086, 0087, and 0088). The
Plastics Industry Association wrote that
‘‘the cost of quality assurance
procedures necessary to ensure
compliance with a proposed rule must
be treated as a component of the burden
hours required by the rule. The audit is,
in effect, not a voluntary measure, but
one that needs to be incurred to ensure
compliance and avoid over-reporting’’
(Docket ID 0086). The Chamber of
Commerce focused on the risk
associated with publicly posting these
injury and illness records, which in turn
would result in increased ‘‘presubmission due diligence’’ (Docket ID
0088).
OSHA concludes that more
information must be submitted from the
Form 300 Log and Form 301 Incident
Report than from the Form 300A
Annual Summary. Therefore, the agency
is adjusting the estimated time required
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
to manually submit electronic records
from 10 minutes per case per
establishment to 15 minutes per case
per establishment. Given the additional
amount of information required, OSHA
believes that a 50 percent increase in the
burden estimate is sufficient. OSHA
notes, however, that employers are
likely to spend less time, because
employers will likely only copy and
paste information from existing forms
into the fields in OSHA’s ITA.
Employers for which it takes longer per
case to submit the information could
choose instead to transmit all their data
in one batch-file submission.
OSHA disagrees with commenters’
assertions that the final rule necessitates
the use of additional experts,
accountants, senior managers,
physicians, or lawyers beyond those
employers currently engage to comply
with existing recordkeeping and
submission requirements under part
1904. The final rule does not change
employer obligations beyond the
requirement that establishments
electronically submit specific illness
and injury information that the
establishment already records.
Furthermore, there is a requirement in
§ 1904.32 for employers to verify the
entries on the Form 300 Log to ensure
that they are complete and accurate.
Section 1904.32 also requires a
company executive to certify the Form
300A once it is completed, by
examining the Form 300 Log. Costs to
perform these verification and
certification tasks were accounted for in
the previous rule that imposed these
requirements (see 66 FR 6092–93).
Thus, OSHA’s expectation is that
employers have already taken measures
to ensure the information employers
have recorded and will be submitted is
accurate. Any due diligence or audit
measures an establishment chooses to
take should predate this rule and should
not be attributed as an additional cost
specific to this rule. Finally, OSHA’s
estimate of an hourly wage for the
recordkeeper submitting the data is
based on the assumption that this task
is performed by a safety and health
specialist who is already familiar with
the establishment’s safety and health
records.
While OSHA is not requiring
submission via batch filing, OSHA
disagrees that smaller companies
affected by this rule do not have the
capability to do batch file submissions.
Currently, approximately half of all
establishments that are required to
submit their records electronically do so
using batch files, and an analysis of that
information shows that smaller
establishments actually use batch file
PO 00000
Frm 00085
Fmt 4701
Sfmt 4700
47337
submission more frequently than some
categories of larger establishments.37
Further, OSHA believes that the time
estimated to manually upload the
required information is appropriate for
small, medium, and large employers. It
is also worth reiterating that the new
requirement to submit data from the
Form 300 and Form 301 only affects
establishments with more than 100
employees, so the smallest employers
are not affected.
A couple of commenters argued that
OSHA should account for additional
costs for compliance due to the
necessity of maintaining two sets of
records as a result of the final rule’s
submission requirements (Docket IDs
0042, 0058). As the Louisiana Chemical
Association said, ‘‘[b]esides the out-ofpocket expenses associated with
compliance, there are other
administrative burdens, for example, the
duplicative work of maintaining two
sets of 300 and 301 forms (a hard copy
and one form for electronic submission
with redacted information)’’ (Docket ID
0042).
This rule does not, however, require
duplicative recordkeeping. As noted in
Section III.B of the Summary and
Explanation, OSHA cautions employers
against including personally identifiable
information on the Forms 300 and 301
when they initially fill out those forms.
The forms themselves contain language
about confidentiality of personal
information and indicate that PII should
not be included. To the extent
employers choose to include PII on
those forms despite these warnings, it is
per a decision by the employer. Such
data can be excluded during data
submission to the extent it is on the
employer’s forms. Furthermore, as
described elsewhere in this preamble,
OSHA is taking multiple steps to protect
against the publication of any
information that could reasonably be
expected to identify individuals
directly, including not collecting certain
information and using de-identification
software to remove any such
information that is submitted by
employers.
OSHA has decided to retain the
methodology from the PEA for
estimating the cost of data submission
but has added an additional 5 minutes
(an increase from 10 to 15) per
submitted case for establishments that
do not submit batch files and has
37 For example, 2019 Form 300A data submitted
to OSHA through the ITA indicate that
establishments with 100–199 employees submitted
50% of data by batch file, which was higher than
the percentage submitted by batch file for
employers with 500 or more employees (Docket ID
0103).
E:\FR\FM\21JYR2.SGM
21JYR2
47338
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
ddrumheller on DSK120RN23PROD with RULES2
updated other data to more recent
figures. Using the updated data in Table
2, above, OSHA calculated a new
average cost per establishment for batch
file submitters of $10.22 per
establishment. Additionally, OSHA
calculated an updated cost to those
submitting manually of $242.41 per
establishment. That yields a total cost
for electronic submission of OSHA
Forms 300 and 301 of $133.46 per
establishment on average,38 or a total of
$6.9 million annually, to submit the
currently estimated 766,257 records.
The calculations above are based on
an estimated 52,092 establishments
reporting 766,257 cases total, or 15.82
cases per establishment submitting
manually and 13.48 cases per
establishment reporting with batch-files.
An estimated 47 percent of all reporting
establishments (24,668) submitting via
batch file would submit 43 percent of
the total cases (332,498 cases), at an
estimated total cost of $252,048 [(24,668
establishments) × (0.17 hours/
establishment) 39 × ($61.31/hour)], or
$10.22 per establishment on average for
batch file submission. For the other 53
percent of establishments (27,424) that
OSHA estimates would manually
submit each case, using OSHA’s
assumption of a mean of 15.82 cases per
establishment and the increased time of
15 minutes per case, the result is an
estimated 237 minutes per
establishment to submit their
information electronically each year.
This produces a total cost for manual
submission of $6,647,982 [(27,424
establishments) × (0.25 hours/case) 40 ×
(15.82 cases) × ($61.31/hour)], or
$242.41 per establishment for manual
submission.
As suggested in the PEA, the agency
believes that this approach likely
overestimates costs, because while
OSHA’s estimates reflect manual entry
of the data for nearly half of
establishments, in the agency’s
experience, as indicated previously,
nearly half of the covered
establishments were already submitting
data to the ITA by uploading a batch file
in 2019. This percentage will likely
increase over time as a result of this
rule. As indicated elsewhere in the FEA,
OSHA expects more of the cases to be
38 The average cost per establishment to submit
the Form 300 and 301 data to OSHA ($133.46) was
calculated as [(Cost per establishment to submit
batch files ($10.22) × establishments submitting
batch files (24,668)) + (Cost per establishment to
submit individual files ($242.41) × establishments
submitting cases manually (27,424,))]/Total
establishments (52,092).
39 0.17 hours is a rounded value representing 10
minutes, or 10/60th of an hour, per establishment.
40 0.25 hours represents 15 minutes, or 15/60th of
an hour, per case.
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
submitted by batch file once this rule
goes into effect, because OSHA expects
companies with many establishments
and/or many cases will have computer
systems that can export their part 1904
injury and illness recordkeeping data
into an easily uploaded file format.41
The agency notes that some
establishments will have no recordable
injuries or illnesses in a given year;
thus, their time and cost burden for
submission under this rule will be zero.
In contrast, establishments with many
recordable injuries and illnesses could
have a time burden of significantly more
than the average of about four hours if
they enter the data manually. OSHA
believes that establishments with many
cases are likely to submit a single batch
file, while establishments that only have
a few cases are more likely to submit
cases manually than by batch file.42
5. Custom Forms
OSHA received multiple comments
regarding the difficulty of submitting
electronic records when the
establishments use custom forms for
their recordkeeping. The International
Bottled Water Association, the Plastics
Industry Association, the Employers ERecordkeeping Coalition, and the
Phylmar Regulatory Roundtable (PRR)
explained that forms such as California
Form 502025 require most, or all of, the
same information as the OSHA forms
(Docket IDs 0076, 0086, 0087, 0094).
PRR noted that forms such as 502025
contain other information that is PII and
are organized differently, both of which
mean that manual entry will take longer
than 10 minutes (Docket ID 0094). PRR
added that significant additional time is
required to review and ensure PII and
sensitive information is not included.
The North American Meat Institute said
that current use of other forms would
require significant administrative
burden to translate the required
information into the online form
(Docket ID 0070).
OSHA notes that § 1904.29(a) states
that employers must use the OSHA 300
41 OSHA’s assumption that batch files are
submitted on a per establishment basis may
overestimate the costs of the rule, as batch files are
typically submitted at the firm level on behalf of
multiple establishments. As documented in the
accompanying spreadsheet (Docket ID 0103), if
OSHA assumed that batch files are submitted by
firms rather than establishments, the costs would be
a fraction of the estimate presented here—
approximately $7,316 annually, as opposed to the
estimated $252,048.
42 For example, data submitted from 2019 Form
300A to OSHA through the ITA shows submissions
from 52,092 establishments with 100+ employees.
The information for these establishments was
submitted by 18,156 users. Of those, 716 users
submitted the data for 24,668 establishments and
332,498 recordable cases using batch files (Docket
ID 0103).
PO 00000
Frm 00086
Fmt 4701
Sfmt 4700
Log, 301 Incident Report, and 300A
Annual Summary—or equivalent
forms—when recording injuries and
illnesses under part 1904. Section
1904.29(b)(4) further states that an
equivalent form is one that has the same
information, is just as readable and
understandable, and is completed using
the same instructions as the OSHA form
it replaces. As discussed earlier in the
summary and explanation of the rule,
OSHA acknowledges that while it may
be possible to avoid duplication in
recording by reliance on equivalent
forms, it will be necessary in some cases
for reporting to re-enter that information
into a system that is compatible with
OSHA’s system. OSHA is aware, for
instance, that for reporting, many
employers use an insurance form
instead of the Form 300 or the Form 301
or supplement an insurance form by
adding any additional information
required by OSHA. The agency notes,
however, that use of a custom form for
recordkeeping does not change the
information the employer copies into
the electronic system to comply with
OSHA data submission requirements,
including the submission requirements
included in this final rule. To the extent
that an insurance form or other form
includes information not relevant to
OSHA reporting, it would not increase
the time and cost for OSHA reporting.
Where relevant, the employer may just
skip inapplicable sections of a custom
form when submitting their information
to OSHA. Therefore, the time for
transmitting the information from the
Forms 300 and 301 is just the time to
manually copy the required information
into OSHA’s system, regardless of
which form the information is recorded
on initially. In addition, the use of
custom forms that can capture
information for multiple purposes does
not prevent employers from designing
those forms so that they can export the
appropriate data and submit their data
to OSHA via batch file.
While OSHA did not find compelling
evidence to increase the estimated
compliance costs based on potential
difficulties companies face from using
custom forms, the agency has increased,
by 50 percent, the estimated time it
takes to submit records manually in
response to comments received on other
issues. This increased time could be
considered as accounting for costs
associated with using custom forms in
the event employers face costs due to
this issue. Elements of this discussion
run parallel to and may interface with
the discussion of potential software
upgrades, discussed below.
E:\FR\FM\21JYR2.SGM
21JYR2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
ddrumheller on DSK120RN23PROD with RULES2
6. Batch-File Submissions
In the PEA, OSHA estimated that half
of all respondents would upload their
logs in one batch-file submission. The
Strategic Organizing Center (SOC)
expressed strong agreement with
OSHA’s assumption that larger, more
sophisticated users will use batch file
submission (Docket ID 0079). It added
that OSHA’s cost estimates, which rely
on this assumption, are appropriate and
that OSHA is correct to not assume
widespread use of manual-entry
submission. Further, SOC agreed that
OSHA’s assumption that half of
employers will submit records manually
‘‘may result in an overestimate of the
total and per-establishment costs of this
part of the proposed rule’’ (Docket ID
0079).
The Chamber of Commerce disagreed
with OSHA’s PEA assumption that half
of the 48,919 affected establishments
will be able to ‘‘drastically reduce their
report submission times and costs by
using a ‘batch’ process of submitting
multiple individual case records
through an electronic portal that OSHA
will provide.’’ Specifically, it stated that
the assumption is not realistic because
the portal has not yet been built or
tested. The Chamber further argued that
it would be more reasonable to assume,
at least for the first year of submission
and maybe for subsequent years, that
‘‘all 48,919 affected establishments will
upload the required case information
manually or will have to delete various
fields to accommodate data OSHA does
not want to collect.’’ This would double
the cost of data submission (Docket ID
0088).
Data from 2019 on usage of batch
uploads for OSHA 300A information
indicates that data for approximately 47
percent of establishments were already
being submitted via batch files (Docket
ID 0103). For the purposes of the FEA,
OSHA estimates that the usage of batch
files submissions will at least continue
at the same rate as was the case in 2019
(47 percent). However, as noted above,
OSHA believes it is likely that batch
filing will increase as a result of the
requirements associated with this rule.
As a comment from the Laborers Health
Safety Fund of North America
emphasized, electronic recordkeeping
and data submission is a more costeffective way for establishments to meet
OSHA standards (Docket ID 0080).
Additionally, Eastern Research Group
(ERG) (Docket ID 0105) interviewed a
number of commercial aftermarket
software vendors who remarked that the
number of users of their software is
rapidly growing.
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
Notwithstanding the agency’s belief
that electronic submission will become
increasingly common, OSHA has
decided to adjust its projected estimate
from the PEA, that 50 percent of
establishments would submit their Form
300 and Form 301 information via a
single batch file, based on OSHA’s
analysis of existing data collected in
2019. These data show that
approximately 47 percent 43 of
establishments submitted their records
by batch file in 2019. However, to the
extent that more employers continue to
adopt this time-saving technology, the
cost of submission will decrease, and
the average reporting costs will be
below OSHA’s cost estimate in this
FEA.
7. Software/System Upgrades Needed
The PEA did not include a cost for
employers to upgrade their systems in
order to submit their files electronically
or in batch files. OSHA received several
comments on this topic. Electric Boat,
the International Bottled Water
Association, and the Employers ERecordkeeping Coalition indicated that
software currently used by employers
does not easily facilitate transmission of
300 and 301 information to OSHA
(Docket IDs 0028, 0076, 0087). The
Employers E-Recordkeeping Coalition
stated that the ‘‘costs to modify the
internal software, purchase new
software, automate injury and illness
recordkeeping, audit the records, and in
many instances, manually key in huge
volumes of data would cost hundreds of
thousands of dollars’’ (Docket ID 0087).
Electric Boat stated that proprietary
recordkeeping software for OSHA logs is
not compatible with requirements to
upload to OSHA and that large
companies may have many cases in
their logs. It further maintained that a
requirement to manually enter data for
each case would be ‘‘very difficult,
costly and potentially inaccurate due to
transcription errors’’ (Docket ID 0028).
For employers not currently using
software, Electric Boat surmised that
information for the Form 301 incident
report is often recorded on handwritten
forms at individual establishments, and
thus the time and resources needed to
transition to a fully automated system
would be considerable.
The U.S. Poultry and Egg Association,
the Employers E-Recordkeeping
Coalition, the Chamber of Commerce,
the National Retail Federation, and the
Flexible Packaging Association, and
43 This percent was calculated by dividing the
24,668 establishments submitting individual 300/
301 data manually (i.e., not by batch file) by the
52,092 total establishments submitting data (Docket
ID 0103).
PO 00000
Frm 00087
Fmt 4701
Sfmt 4700
47339
Phylmar Regulatory Roundtable wrote
about increased costs due to either
reprogramming recordkeeping software
to meet OSHA’s format or investing in
new software altogether (Docket IDs
0053, 0087, 0088, 0090, 0091, 0094).
The U.S. Poultry and Egg Association
commented that OSHA’s analysis ‘‘does
not consider that some employers
utilize proprietary electronic
recordkeeping systems that would
require program changes, possibly at a
high cost, so that the information could
be electronically submitted to OSHA’’
(Docket ID 0053). The Phylmar
Regulatory Roundtable (Docket ID 0094)
stated that two or three days of labor
would be necessary to reconfigure the
coding and modify programs currently
used to electronically upload Form
300A to include submission of Forms
300 and 301. The Chamber of Commerce
addressed the issue of small businesses
that do not have electronic
recordkeeping programs in place and
was concerned that small businesses
would not be able to afford the software
(Docket ID 0088).
OSHA believes that employers who
use custom software for their
recordkeeping will incur some, though
limited, additional costs to upgrade
custom computer systems. OSHA also
believes that employers who use
commercially available software are
unlikely to incur any costs.44 Many
establishments required to submit injury
and illness data from their Form 300A
already use software to submit that
data.45 The larger employers that have
created their own custom software,
instead of relying on commercially
available software, likely have IT
employees already on staff that conduct
system upgrades as part of their daily
44 OSHA believes employers who already own
and use commercially available software are
unlikely to face any additional costs because
aftermarket software vendors will need to upgrade
their software to ensure the software does not
become irrelevant to the needs of their customers.
Research conducted by ERG indicates that software
vendors plan to upgrade software free of charge
(Docket ID 0104). The business model selected by
the software vendors means that they will
inherently incur some minor costs as a result of
providing a service without charge. The record is
not sufficient for OSHA to provide a quantitative
estimate of what those costs would be, but the fact
that the vendors chose to offer this service without
charge makes it clear that providing this update
would not pose any threat to the economic stability
of the software vendor industry.
45 The use of recordkeeping software provides
significant advantages in terms of streamlining
recordkeeping and data submission capabilities.
Specifically, software is available that produces
OSHA-ready reports for work-related injuries and
illnesses; generates files in the exact format
required for the OSHA ITA; and offers additional
features, including ways to capture near-misses and
hazards of all types, detailed incident
investigations, and the root cause of an injury.
E:\FR\FM\21JYR2.SGM
21JYR2
47340
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
ddrumheller on DSK120RN23PROD with RULES2
routine. For these companies, existing
IT staff can conduct any software
upgrades needed, and OSHA has
included a discussion of these costs
below. If upgrading systems is cost
prohibitive for an establishment, the
establishment can still submit the
required information from their part
1904 forms manually, which is
accounted for in OSHA’s estimates.
Nonetheless, after a full consideration
of comments, and notwithstanding the
possibility that switching to commercial
aftermarket software might be more
economical, OSHA recognizes that there
may be an incremental cost to
modifying custom software unique to
the rule. While comments provided
limited guidance on what the cost of
updating software may be, including
how many firms might be affected, the
agency determined that 20 hours of
reprogramming is a reasonable time for
the task (Docket ID 0104). This estimate
also corresponds to the estimate
submitted in the comment by the
Phylmar Regulatory Roundtable of 2–3
days (Docket ID 0094).46
OSHA also estimates that the group of
firms affected by the custom software
modification costs is a limited set.
OSHA found that approximately 40
percent of employers who must report
injuries currently already use software
to report the files,47 and the number is
growing. The agency believes the set of
firms using customized software to
report cases is not a randomly
distributed group but sorts heavily by
the size of the firm. The agency
examined the current universe of firms
currently electronically batch-filing
injury reports via its ITA system and
found that of the 716 firms reporting for
affected establishments, approximately
36 percent are reporting for only one
establishment (Docket ID 0106). OSHA
believes the cost of updating custom
software would predominantly affect
only the other 64 percent of firms (456)
that represent more than one
establishment and report data using
batch files (ITA cite). Those 456 firms
also account for a disproportionate
number of cases reported to the agency.
For those 456 firms to upgrade their
software, the agency assumes that this
46 The agency has also performed a sensitivity
analysis to recognize that some of the more complex
software in the typically larger firms, with many
establishments, might take as much as 50 hours to
reprogram, depending on the complexity of the
software (Docket ID 0103). These estimates assume
there are not time savings from bundling these
software updates with others needed to maintain
and update the software, or efficiencies to be gained
from incorporating commercial software.
47 Docket ID 0105.
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
work would be performed by a software
engineer at the wage rate ($94.19)
referenced in Table 2. The FEA
therefore calculated the cost of custom
software as $859,042 [(456 firms) × (20
hours) × ($94.19/hour)], or $122,308
annualized over 10 years at a 7 percent
discount rate.48
As indicated previously, employers
are not required to modify their software
to comply with the standard, but for
very large employers, this might be their
least-cost method for compliance. As
laid out earlier in the analysis, other
employers might decide that for
purposes of OSHA compliance, it makes
more sense to employ commercially
available software, or even manually
enter the cases. Therefore, issues of
software modification do not raise
questions of technological feasibility, as
discussed later in the analysis, nor do
they pose questions of economic
feasibility.
8. Other Costs
OSHA also received comments on
other potential cost items, addressed
below.
a. Harm to Reputation
OSHA received multiple comments
stating that OSHA should include costs
to capture the argued negative
reputational effects to companies after
OSHA publishes their illness and injury
information. The Plastics Industry
Association and the Chamber of
Commerce commented on the potential
liabilities associated with publishing
these work-related injury reports
(Docket IDs 0086, 0088). The Plastics
Industry Association noted the
‘‘unknown consequences of public
shaming and misuse of the information’’
that could lead to reputational damage
(Docket ID 0086).
Related comments are covered in
Section III.G of the Summary and
Explanation, but the agency emphasizes
here that there is insufficient basis for
altering the economic analysis to reflect
this issue. Regarding reputational and
civil liability damages, OSHA disagrees
that the mere posting of injury and
illness recordkeeping data on a publicly
available website will adversely impact
an employer’s reputation. As the Note to
§ 1904.0 of OSHA’s recordkeeping
regulation makes clear, the recording or
reporting of a work-related injury,
illness, or fatality does not mean that an
employer or employee was at fault, that
an OSHA rule has been violated, or that
the employee is eligible for workers’
annualized over 10 years at a 3
percent discount rate.
PO 00000
48 $100,706
Frm 00088
Fmt 4701
Sfmt 4700
compensation or other benefits. In
addition, OSHA already publishes data
from the Form 300A that is collected
through the ITA, as well as
establishment-specific, case-specific
information about reported work-related
fatalities, hospitalizations, amputations,
and losses of an eye (see https://
www.osha.gov/severeinjury and https://
www.osha.gov/fatalities). Despite online
publication of this information for a
number of years, commenters did not
provide any examples of harm to
reputation occurring as a result, nor did
they provide any examples of misuse of
the data that has already been
published.
b. Additional Time Needed To Review
for PII
As an adjunct to the earlier discussion
regarding quality assurance concerns
and the appropriate wage rate for the
cost of submitting cases, some
commenters also suggested that it will
take additional time to remove PII from
case files before they are submitted. As
in that discussion, OSHA reiterates that
this is an action that should already be
addressed when the cases are recorded
under existing practices to meet existing
recordkeeping requirements at § 1904.4,
§ 1904.29, and § 1904.41.49 Therefore,
this is not a new cost of this rule, and
the agency is not including cost for
privacy checks in the Final Economic
Analysis.
c. Company Name
One commenter, the National
Demolition Association, stated that the
final rule’s new requirement for
establishments to submit their company
name as part of their data submissions
would impose an additional
administrative and financial burden on
employers. This commenter argued that
the requirement, which is in final
§ 1904.41(b)(10), ‘‘would be particularly
onerous and complex for employers
who have multiple establishments and
limited staff resources to comply with
the additional administrative paperwork
and reporting requirements’’ (Docket ID
0060).
Submission of an establishment’s
company name is not expected to be
particularly time consuming. First, most
establishments are already including
their company names as part of their
300A data submissions, so this new
requirement will only affect
49 Additionally, OSHA will use software capable
of detecting and redacting PII not redacted by
establishments.
E:\FR\FM\21JYR2.SGM
21JYR2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
establishments that are using only codes
to identify their establishments. Second,
establishments that are not already
submitting their company name only
have to input that one additional field,
and they have to do that only one time
if they are doing a batch file submission
(i.e., once per batch file).50 Regardless,
the time necessary to include the
company name is included in the 15
minutes OSHA has estimated as the
time necessary to complete one
submission.51
ddrumheller on DSK120RN23PROD with RULES2
d. Training Costs
The U.S. Poultry and Egg Association,
Dow, the North American Meat
Institute, the Motor and Equipment
Manufacturers Association, the
Chamber of Commerce, and the National
Retail Federation commented that
training costs should be included in the
cost analysis (Docket IDs 0053, 0054,
0070, 0088, 0090). The U.S. Poultry and
Egg Association wrote that the analysis
‘‘does not consider additional training
of staff that might be required, nor does
the rule consider costs associated with
training existing and new staff on the
variety of state and federal privacy laws
that could be impacted by employers
now knowing that the information they
submit will necessarily be made
available worldwide’’ (Docket ID 0053).
The Chamber of Commerce commented
on the need for training managers on
how to comply with reporting formats,
schedules, and procedures, as well as
training for additional staff ‘‘to cover
multiple shifts, absences, and internal
review needs.’’ The Chamber further
stated that time would be needed to
‘‘train administrative and operational
employees in their new compliance
duties’’ (Docket ID 0088).
OSHA concludes that additional
training should not be necessary either
to fill in a web form with information
that has already been recorded, or to
transmit records from an existing
electronic recordkeeping system with
which the employee is already familiar.
Employees have already been trained on
how to record injuries and illnesses on
the Forms 300 and 301, pursuant to
50 As OSHA said in the NPRM, OSHA’s review of
five years of electronically submitted Form 300A
data indicates that many large firms with multiple
establishments use codes for the Establishment
Name field in their submission (87 FR 18546). This
is the type of employer this new requirement will
likely apply to and, because they are large firms
submitting for multiple establishments, they are
likely submitting via batch file. This means that
company name would only need to be inputted
once.
51 To the extent the commenter is arguing that
determining a firm’s legal name is administratively
difficult or would take substantial time, OSHA
presumes that employers know their company
names and has included no cost for that.
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
other previously existing requirements
under part 1904. Thus, OSHA has
already accounted for the time required
to learn how to keep the records
themselves. Any time required to learn
how to submit the Form 300 and Form
301 data to the ITA (the only new
requirement in this rule) is already
included in OSHA’s rule familiarization
time estimate, described above.52
D. Effect on Prices
An anonymous commenter
commented, ‘‘This is unnecessary
overreach which is going to cost
employers and cost the tax payers
additional resources to process the
collected data . . . It will only cost
employers more, who will charge the
consumer more’’ (Docket ID 0025).
OSHA disagrees. As discussed
throughout this section, the costs to
comply with the final rule for
individual employers are expected to be
about $136 per establishment to submit
the Form 300 and 301 data. Costs at this
level of magnitude are not expected to
lead to price increases or raise issues of
economic feasibility.53
E. Budget Costs to the Government
In the PEA, OSHA included an
estimate of the costs of the new
requirement to the government because
these costs represent a significant
fraction of the total costs of the new
requirement. OSHA received estimates
for the costs from the U.S. Department
of Labor Office of the Chief Information
Officer (DOL OCIO). OSHA estimated
that modification of the reporting
system hardware and software
infrastructure to accept submissions of
Form 300 and 301 data would have an
initial one-time cost of $1.2 million. If
annualized over 10 years at a 7 percent
discount rate, the $1.2 million total cost
would equal $170,853 per year, or if
annualized at 3 percent, it would be
$140,677 per year. The agency also
estimated $201,128 as the annual cost of
additional IT transactions necessary to
implement this rule ($0.28 per case
times 718,316 cases for additional
internal IT support services). Finally,
OSHA estimated that annual help desk
support costs would increase by
$25,000. This estimate was based on the
annual help desk support costs under
the 300A submission provisions. This
52 This approach is also consistent with that taken
in OSHA’s 2016 final recordkeeping rule, which
also required electronic submission of injury and
illness data to OSHA (see 81 FR 29674).
53 As discussed in the Regulatory Flexibility
Certification, the costs would be no more than
approximately .01% of revenues ($136 costs/
$13,627 being the 1% threshold of revenues),
implying a negligible price increase, if any, to
recoup the increase in costs.
PO 00000
Frm 00089
Fmt 4701
Sfmt 4700
47341
resulted in a total cost to the
government, annualized over 10 years at
a 7 percent rate, of $397,001.54
OSHA sought comment on this
methodology and cost estimate and
received no responses. After
consideration, OSHA has decided to
maintain the framework used in the
proposal but has updated the estimate to
account for the current wage rate
indicated in Table 2, above. Therefore,
OSHA retained the estimate of $1.2
million for the one-time cost of
modifying the reporting system
hardware and software infrastructure to
accept submissions of Form 300 and 301
data. If annualized over 10 years at a 7
percent discount rate, the $1.2 million
total cost would equal $170,853 per
year. If annualized at 3 percent, it would
be $140,677 per year. The agency also
estimated $128,716 as the annual cost of
additional IT transactions necessary to
implement this rule ($0.28 per case
times 459,701 cases for additional
internal IT support services). Next, the
agency estimated $204,485, based on
2023 wages, for OSHA to hire an
additional IT Specialist. Finally, OSHA
estimated that annual help desk support
costs will increase by $50,000.
Summing these figures, and assuming a
seven percent discount rate, results in a
total annualized cost to the government
of $554,054.
F. Total Cost
Summing the estimated batch-file
submission ($252,048) and manual
submission ($6,647,982) costs results in
an estimated total cost of $6,900,030 to
submit 766,257 records. Combined with
the annualized cost of $75,781 per year
for familiarization, and $122,308 for
software upgrade cost to employers
submitting batch-files using custom
computer software, estimated above (at
7 percent), the estimated total annual
private-sector cost of this part of the
54 When preparing the final rule, the agency
found inadvertent discrepancies between the
written text of the PEA that was in the Federal
Register notice for the NPRM (87 FR 18550–51) and
the spreadsheet (Ex. 2) used to calculate the
estimated governmental costs in the PEA. The
agency describes those discrepancies here for the
purposes of transparency. The annual cost of IT
transactions was listed in the spreadsheet as
$107,309 rather than $201,128 in the Federal
Register notice. Annual help desk support costs
were listed as $50,000 in the spreadsheet and
$25,000 in the Federal Register notice. And, the
cost of an additional IT Specialist was included in
the spreadsheet (at an estimated $181,162) but
omitted from the discussion in the Federal Register
notice. Whereas the total costs to the government
reported in the spreadsheet were $509,324, the total
costs to the government in the Federal Register
notice were $397,001. Because the costs listed in
the spreadsheet are more inclusive of the universe
of estimated costs, the estimates in the FEA are
derived from those costs.
E:\FR\FM\21JYR2.SGM
21JYR2
47342
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
final rule is $7,098,120. To obtain the
estimated average cost of submission
per establishment of $136.26, OSHA
divided the total estimated cost of
submission ($7,098,120) by the
estimated number of establishments that
would be required to submit data
(52,092 establishments). Total costs are
detailed in Table 3, below.55 56
TABLE 3—TOTAL COST SUMMARY
Cost element
Annual cost
One-time cost
Annual electronic submission of OSHA Form
300 Log and OSHA Form 301 Incident Report by establishments with 100 or more employees in designated industries.
One-Time Rule Familiarization Cost .................
Annualized 10 yr at 7% ..............................
Annualized 10 yr at 3% ..............................
One-Time Software Upgrade ............................
Annualized 10 yr at 7% ..............................
Annualized 10 yr at 3% ..............................
$6,900,030 ........................................................
$0
NA .....................................................................
75,781 ...............................................................
62,397 ...............................................................
NA .....................................................................
122,308 .............................................................
100,706 .............................................................
532,257
NA
NA
859,042
NA
NA
Total Private Sector Costs * ** .............
Average Cost per 52,092 Establishments .........
7,098,120 ..........................................................
136 ....................................................................
1,391,299
NA
Processing of annual electronic submissions of
OSHA 300/301.
Annual Contractor Software Support ................
Annual Government Software Support .............
One-Time Software Design and Development
Annualized 10 yr at 7% ..............................
Annualized 10 yr at 3% ..............................
128,360 .............................................................
0
50,000 ...............................................................
204,485 .............................................................
NA .....................................................................
170,853 .............................................................
140,677 .............................................................
0
0
1,200,000
NA
NA
Total Government Costs * ** ................
553,698 .............................................................
1,200,000
Total * ..................................................
7,651,818 ..........................................................
2,591,299
* One-time costs are annualized and appear in annual cost column; the one-time cost is not an additional cost.
** Annualized over 10 years at 7%.
As explained in the PEA and
elaborated on elsewhere in this
preamble, in particular in Section III.B
of the Summary and Explanation, the
main purpose of the final rule is to
prevent worker injuries and illnesses
through the collection and use of timely,
establishment- and case-specific injury
and illness data. With the information
obtained through this rule, OSHA,
employers, employees, employee
representatives, State and local
agencies, consultants, and researchers
will be better able to identify and
mitigate workplace hazards and thereby
prevent worker injuries and illnesses.
The final rule will support OSHA’s
statutory directive to assure safe and
healthful working conditions for
working people by providing for
appropriate reporting procedures
regarding occupational safety and health
that will help achieve the objectives of
the OSH Act (29 U.S.C. 651(b); (b)(12)).
The number of workers in the U.S.
who are injured or made ill on the job
remains unacceptably high, and the
importance of this final rule lies largely
in increasing access to information to
better enable OSHA and other
organizations to prevent workplace
injuries and illnesses. According to
BLS’s Survey of Occupational Injuries
and Illnesses (SOII), in 2021, employees
experienced 2.6 million recordable
nonfatal injuries and illnesses at work.57
This number is widely recognized to be
an undercount of the actual number of
occupational injuries and illnesses that
occur annually.58 As described
extensively above in Section III.B of the
Summary and Explanation, the final
rule will increase the agency’s ability to
focus resources on those workplaces
where workers are at greatest risk. Even
with improved targeting, OSHA
Compliance Safety and Health Officers
can inspect only a small proportion of
the nation’s workplaces each year, and
it would take many decades to inspect
each covered workplace in the nation
even once. As a result, to reduce worker
injuries and illnesses, it is of great
importance for OSHA to leverage its
resources for workplace safety at the
many thousands of establishments in
which workers are being injured or
made ill but which OSHA does not have
the resources to inspect.
As discussed in more detail in Section
III, Summary and Explanation, the final
rule will help OSHA prevent worker
injuries and illnesses by greatly
expanding OSHA’s access to the
establishment-specific, case-specific
information employers are already
required to record under part 1904. The
55 OSHA has determined that the other new
regulatory provisions in this final rule, such as
§ 1904.41(b)(1) (which is a clarifying provision),
§ 1904.41(b)(9) (which sets out which data should
be excluded from submissions), § 1904.41(b)(10)
(which requires employers to provide their
company name as part of their submission), and
§ 1904.41(c) (which sets the submission deadline),
do not impose costs beyond those accounted for in
the costs of submission and familiarization
discussed in this FEA.
56 One commenter, the US Poultry & Egg
Association, objected to OSHA’s estimate of costs
and suggested that OSHA should ‘‘conduct a pilot
program (preferably on Federal Government
agencies) to determine the actual cost of
compliance’’ (Ex. 53). OSHA has a long history of
estimating costs of its regulations and standards
without the need for a pilot program. It is confident
that the estimates in this rulemaking, which
carefully consider comments from interested
parties, are sufficient to accurately characterize the
costs of compliance for employers.
57 See ‘‘Employer-Reported Workplace Injuries
and Illnesses—2021’’, news release from the Bureau
of Labor Statistics/U.S. Department of Labor,
November 9, 2022 (https://www.bls.gov/
news.release/pdf/osh.pdf).
58 See, e.g., Leigh JP, Du J, McCurdy SA. An
estimate of the U.S. government’s undercount of
nonfatal occupational injuries and illnesses in
agriculture. Ann Epidemiol. 2014 Apr; 24(4):254–9
(https://pubmed.ncbi.nlm.nih.gov/24507952/);
Spieler EA, Wagner GR. Counting matters:
Implications of undercounting in the BLS survey of
occupational injuries and illnesses. Am J Ind Med.
2014 Oct; 57(10):1077–84 (https://
onlinelibrary.wiley.com/doi/10.1002/ajim.22382).
ddrumheller on DSK120RN23PROD with RULES2
G. Benefits
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
PO 00000
Frm 00090
Fmt 4701
Sfmt 4700
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
provisions requiring regular electronic
submission of case-specific injury and
illness data will allow OSHA to obtain
a much larger data set of establishmentspecific, case-specific information about
injuries and illnesses in the workplace.
This information will help OSHA use its
enforcement and compliance assistance
resources more effectively by enabling
OSHA to identify the workplaces where
workers are at greatest risk. In addition,
OSHA will be able to use the
information to identify emerging
hazards, support an agency response,
and reach out to employers whose
workplaces might include those
hazards.
In addition to OSHA obtaining better
information, this information will be
available to employers, employees,
members of the public, employee
representatives, trade associations, and
workplace safety and health
professionals, among others. This
increased access and transparency of
information about workplace injuries
and illnesses can be used by all
interested parties to better understand
workplace hazards and improve
occupational safety and health. OSHA
also expects the information to improve
research on the occurrence and
prevention of workplace hazards,
injuries, and illnesses.
In response to the PEA, the National
Propane Gas Association and the
Chamber of Commerce said that OSHA
should quantify benefits for the rule
(Docket IDs 0050, 0088, Attachments).
The National Propane Gas Association
stated that OSHA ‘‘does not provide any
details as to how publicly available
information could improve workplace
safety’’ and argued that OSHA should
‘‘provide concrete benchmarks to define
the safety improvements that the agency
expects to be met by publicly accessible
case-specific, establishment-specific
information’’ (Docket ID 0050). The
Chamber of Commerce said that OSHA
‘‘makes no attempt to estimate or
quantify the purported economic
benefits of this Proposed Rule; instead,
it asserts that these benefits will
‘significantly exceed the annual costs,’ ’’
going on to say that OSHA did not
‘‘explain how electronic quarterly
reporting or the creation of a public
database that will publish the private
and confidential information of
employers and employees will provide
any increase in workplace safety’’
(Docket ID 0088).59
59 Note that the agency did not propose quarterly
reporting; the proposed rule envisioned annual
reporting, and the final rule similarly will require
annual reporting.
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
The agency respectfully disagrees
about quantifying the economic
benefits. Quantifying benefits is not
always feasible in practice. However,
the infeasibility of quantifying benefits
does not demonstrate a lack of benefits.
In contrast to the occupational safety
and health standards the agency
promulgates, quantifying benefits for a
recordkeeping regulation is particularly
challenging.60 OSHA notes that the
commenters did not attempt to
themselves quantify the benefits of the
proposed rule, nor did commenters
propose any approach that would allow
the agency to effectively quantify those
benefits in order to compare them
against the costs.
H. Economic Feasibility
In the PEA, OSHA preliminarily
concluded that the proposed rule would
be economically feasible and received
no comment specifically on this
conclusion. After further consideration,
OSHA has concluded that the final rule
will be economically feasible. Under the
final rule, for establishments with 100
or more employees in the industries
designated in appendix B, the average
additional cost of electronically
submitting information from the OSHA
Forms 300 and 301 will be roughly $136
per year. These costs will not affect the
economic viability of these
establishments.
I. Regulatory Flexibility Certification
The requirement in the final rule
requiring the electronic submission of
Form 300 and 301 information from
establishments with 100 or more
employees in designated industries will
affect some small entities, as determined
by the definitions of small entity used
by the Small Business Administration
(SBA). In some sectors, such as
construction, where SBA’s definition
only includes relatively smaller firms,
there are unlikely to be many entities
with establishments with 100 or more
employees that meet SBA small entity
definitions. In other sectors, such as
manufacturing, many SBA-defined
small entities will be subject to this rule.
Thus, this part of the final rule will
affect only a small percentage of all
SBA-defined small entities.61 However,
60 For the difference between a standard and a
regulation, please see the discussion in Section II,
Legal Authority.
61 The portion of the rule that addresses the
submission of Form 300A information does affect
smaller entities, as establishments with 20 or more
employees are required to electronically submit
Form 300A information. However, because this
final rule makes no substantive changes to that
submission requirement, which was enacted as part
of the 2016 final rule, there are no new costs for
entities with fewer than 100 employees.
PO 00000
Frm 00091
Fmt 4701
Sfmt 4700
47343
because some SBA-defined small
entities will be affected, especially in
manufacturing, OSHA has examined the
impacts of this final rule on small
businesses.
OSHA did not convene a Small
Business Advocacy Review panel under
the Small Business Regulatory
Enforcement Fairness Act of 1996
(SBREFA Panel) for this rule. At least
one commenter, the Chamber of
Commerce, argued that OSHA should
have convened a SBREFA Panel to
further evaluate the effect of the
proposed rule on small businesses
(Docket ID 0088). The commenter said
that the panel was particularly
important because ‘‘the vast majority of
employers and establishments that will
be affected by this Proposed Rule’s
electronic-only reporting requirements
will be small businesses, many of which
do not currently record injuries
electronically.’’ This commenter offered
no evidence to support its assertion that
the majority of the employers and
establishments affected would be small
businesses, nor did it offer evidence that
small businesses do not currently record
injuries electronically.
OSHA considers the possibility of
disproportionate impacts on small
businesses when deciding whether a
Small Business Advocacy Review
(SBAR) panel is warranted. Because
OSHA preliminarily determined that the
proposed rule would not result in a
significant impact on a substantial
number of small businesses (see 87 FR
18553), OSHA determined that a
SBREFA panel was not required for this
rule. Nothing in the record has
disturbed OSHA’s preliminary
determination that this rule will not
have a significant impact on a
substantial number of small businesses.
Therefore, OSHA does not believe a
SBREFA panel was required for this
rule.
OSHA’s typical procedure for
assessing the significance of final rules
on small businesses is to first determine
if costs are greater than one percent of
revenues or five percent of profits for
the average firm. If so, OSHA conducts
an additional assessment. To meet this
level of significance at an estimated
annual average cost of $136 per affected
establishment per year (including
annualized familiarization costs),
annual revenues for an establishment
with 100 or more employees would
have to be less than $13,627 (or less
than $136 per employee, assuming 100
employees), and annual profits would
have to be less than $2,725 (or less than
$28 per employee, assuming 100
employees). There are no impacted
industries that have average revenues of
E:\FR\FM\21JYR2.SGM
21JYR2
47344
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
less than $13,627.62 Furthermore,
integrating those data with profit data
from the 2013 Corporation Source
Book 63 indicates there are no impacted
industries earning less than $2,725 in
profit per establishment among
establishments with 5 or more
employees.64 These are extremely
unlikely combinations of revenues and
profits for firms of this size and would
only occur for a very small number of
firms in severe financial distress. As
indicated, OSHA’s cost estimates would
have to be in error by more than an
order of magnitude to reach these
thresholds.65
As a result of these considerations,
per Section 605 of the Regulatory
Flexibility Act (5 U.S.C. 605), OSHA
certifies that the final rule will not have
a significant economic impact on a
substantial number of small entities.
Thus, OSHA has not prepared a final
regulatory flexibility analysis.
V. OMB Review Under the Paperwork
Reduction Act of 1995
A. Overview
ddrumheller on DSK120RN23PROD with RULES2
The final ‘‘Improve Tracking
Workplace Injury and Illness’’ rule
contains information collection
(paperwork) requirements that are
subject to review by the Office of
Management and Budget (OMB) under
the Paperwork Reduction Act of 1995
(PRA), 44 U.S.C. 3501 et seq., and OMB
regulations, 5 CFR part 1320. The PRA
defines a collection of information as
‘‘the obtaining, causing to be obtained,
soliciting, or requiring the disclosure to
62 The average revenue numbers were obtained
from the 2017 Economic Census. This is the most
current information available from this source,
which OSHA considers to be the best available
source of revenue data for U.S. businesses. OSHA
adjusted these figures to 2019 dollars using the
Bureau of Economic Analysis’s GDP deflator, which
is OSHA’s standard source for inflation and
deflation analysis. These average revenue figures
would include any non-profits falling within the
affected industries.
63 Profits were calculated as profit rates
multiplied by revenues. The before-tax profit rates
that OSHA used were estimated using corporate
balance sheet data from the 2013 Corporation
Source Book (Internal Revenue Service, 2013;
https://www.irs.gov/statistics/soi-tax-statscorporation-source-book-publication-1053). The IRS
discontinued the publication of these data after
2013, and therefore the most current years available
are 2000–2013. The most recent version of the
Source Book represents the best available evidence
for these data on profit rates.
64 While descriptive of most establishments in
these industries, this figure would significantly
underestimate the profits of the average affected
establishment covered by this rule, which only
affects those with 100 or more employees.
65 The lowest potential threshold of impact (for
profits) is $2,725 per establishment. The agency
estimates an average cost per establishment of $136.
It would need to be approximately 20 times higher
to reach this threshold.
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
third parties or the public, of facts or
opinions by or for an agency, regardless
of form or format.’’ 44 U.S.C. 3502(3)(A).
The aforementioned regulations
mandate that the Department consider
the impact of paperwork and other
information collection burdens imposed
on the public. Under the PRA, a Federal
agency generally cannot conduct or
sponsor a collection of information and
the public will generally not be
penalized for not responding to an
information collection, unless it is
approved by OMB and the agency
displays a currently valid OMB Control
Number. See 44 U.S.C. 3507 and 3512,
5 CFR 1320.5(a) and 1320.6.
On March 30, 2022, OSHA published
a notice of proposed rulemaking
(NPRM) (87 FR 18528) to amend its
occupational injury and illness
recordkeeping regulation to require
establishments with 100 or more
employees in certain designated
industries to be able to electronically
submit information from their OSHA
Forms 300, 301, and 300A once a year.
OSHA prepared and submitted an
Information Collection Request (ICR) to
OMB, proposing to revise certain
collection requirements currently
contained in the package, as required
under 44 U.S.C. 3507(d). The proposed
rule invited the public to submit
comments to OMB, in addition to
OSHA, on the proposed collections of
information. On May 25, 2022, OSHA
published a second Federal Register
notice (87 FR 31793), extending the
comment period to allow the public an
additional 30 days to comment on the
proposed rule and the information
collection requirements contained in the
proposed rule. OSHA received 87 public
comments.
In accordance with the PRA (44
U.S.C. 3506(c)(2)), OSHA solicited
public comments on the collection of
information contained in the 2022
proposed rule. OSHA encouraged
commenters to submit their comments
on the information collection
requirements contained in the proposed
rule under docket number OSHA–2021–
0006, along with their comments on
other parts of the proposed rule. In
addition to generally soliciting
comments on the collection of
information requirements, the proposed
rule indicated that OSHA and OMB
were particularly interested in
comments that addressed the following:
• Whether the collection of
information is necessary for the proper
performance of the agency’s functions,
including whether the information is
useful;
• The accuracy of OSHA’s estimate of
the burden (time and cost) of the
PO 00000
Frm 00092
Fmt 4701
Sfmt 4700
collection of information, including the
validity of the methodology and
assumptions used;
• The quality, utility, and clarity of
the information collected; and
• Ways to minimize the compliance
burden on employers, for example, by
using automated or other technological
techniques for collecting and
transmitting information.
On May 5, 2022, OMB issued a Notice
of Action (NOA) assigning the
proposal’s ICR a new control number,
1218–0279, to be used in future ICR
submissions. OMB noted that this action
had no effect on any current approvals.
OMB also noted that the NOA is not an
approval to conduct or sponsor the
information collection contained in the
revision proposal. Finally, OMB
requested that, ‘‘[p]rior to publication of
the final rule, [OSHA] should provide a
summary of any comments related to
the information collection and their
response, including any changes made
to the ICR as a result of comments. In
addition, the agency must enter the
correct burden estimates.’’ OSHA did
not receive any comments in response
to the proposed ICR submitted to OMB
for review. However, the agency did
receive 87 comments related to the
proposed rule.
Concurrent with publication of this
final rule, the Department of Labor
submitted the final ICR, containing the
full analysis and description of the
burden hours and costs associated with
the final rule, to OMB for approval. A
copy of this ICR is available at https://
www.reginfo.gov/public/do/
PRAOMBHistory?ombControl
Number=1218-0279 (this link will
become active on the day following
publication of the final rule). OSHA will
publish a separate notice in the Federal
Register that will announce the results
of that review. This notice will also
include a list of OMB-approved
information collection requirements and
total burden hours and costs imposed by
the new regulation.
B. Summary of Information Collection
Requirements
As required by 5 CFR 1320.5(a)(1)(iv)
and 1320.8(d)(2), the following
paragraphs provide information about
this ICR.
1. Title: Improve Tracking Workplace
Injury and Illness.
2. Description of the ICR: This final
rule revises the currently approved
Recordkeeping and Reporting
Occupational Injuries and Illnesses
Information Collection and changes the
existing information collection
requirements currently approved by
OMB.
E:\FR\FM\21JYR2.SGM
21JYR2
ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
3. Brief Summary of the Information
Collection Requirements.
Under ‘‘Information Requirements on
Recordkeeping and Reporting
Occupational Injuries and Illnesses,’’
OMB Control Number 1218–0176,
OSHA currently has OMB approval to
conduct an information collection that
requires covered employers to, among
other things, record each recordable
employee injury and illness on an
OSHA Form 300, which is the ‘‘Log of
Work-Related Injuries and Illnesses,’’ or
equivalent. In addition, employers must
also prepare a supplementary OSHA
Form 301 ‘‘Injury and Illness Incident
Report’’ or equivalent that provides
additional details about each case
recorded on the OSHA Form 300, and,
at the end of each year, employers are
required to prepare a summary report of
all injuries and illnesses on the OSHA
Form 300A, which is the ‘‘Summary of
Work-Related Injuries and Illnesses,’’
and post the form in a visible location
in the workplace.
Under 29 CFR 1904.41, certain
employers were only required to
electronically submit injury and illness
information from their OSHA Forms
300A (the summary) annually. OSHA
did not receive establishment-specific,
case-specific, injury and illness data.
For the purposes of the PRA, the final
rule makes two changes to § 1904.41.
First, OSHA newly requires all
establishments that have 100 or more
employees and are in certain designated
industries to electronically submit
information from the OSHA Form 300
and 301 to OSHA or OSHA’s designee.
This is in addition to the current
requirement for these establishments to
electronically submit information from
the OSHA Form 300A. Each
establishment subject to this provision
will require time to familiarize
themselves with the reporting website.
This change is similar to requirements
contained in OSHA’s Improve Tracking
of Workplace Injuries and Illnesses final
rule, 81 FR 29624 (May 12, 2016) which
were removed by the Tracking of
Workplace Injuries and Illnesses final
rule, 84 FR 380 (January 25, 2019).
Second, OSHA newly requires
establishments that are required to
electronically report information from
their injury and illness records to OSHA
under part 1904, to include their
company name as part of the
submission. No additional paperwork
burden is associated with the provision.
In addition, Docket exhibit OSHA–
2021–006–0004 shows an example of an
expanded interface to collect casespecific data. Screenshots of this
interface can also be viewed on OSHA’s
website at https://www.osha.gov/
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
recordkeeping/proposed_data_
form.html.
4. OMB Control Number: 1218–0279 .
5. Affected Public: Business or other
for-profit.
6. Total Estimated Number of
Respondents: 52,092.
7. Frequency of Responses: Annually.
8. Total Estimated Number of
Responses: 475,943.
9. Average Time per Response:
Average time per response varies from
10 minutes for establishments using
batch file submission to 237 minutes for
establishments using manual
submission.
10. Total Estimated Annualized
Burden Hours): 118,485.
11. Total Estimated Costs (CapitalOperation and Maintenance): 0.
VI. Unfunded Mandates
OSHA reviewed this final rule
according to the Unfunded Mandates
Reform Act of 1995 (UMRA) (2 U.S.C.
1501 et seq.), as well as Executive Order
13132 (64 FR 43255 (Aug. 4, 1999)). As
discussed above in Section IV, Final
Economic Analysis, the agency has
determined that this final rule does not
include any Federal mandate that may
result in increased expenditures by
State, local, and Tribal governments, or
increased expenditures by the private
sector, of $100 million or more in any
one year. In addition, OSHA’s
regulations do not apply to State and
local governments except in States that
have elected voluntarily to adopt a State
Plan approved by OSHA. Consequently,
this final rule does not meet the
definition of a ‘‘federal
intergovernmental mandate’’ (see 2
U.S.C. 1502, 658(5)). Therefore, for the
purposes of the UMRA, the agency
certifies that this final rule does not
mandate that State, local, or Tribal
governments adopt new, unfunded
regulatory obligations of, or increase
expenditures by the private sector by,
$100 million or more in any year.
VII. Federalism
OSHA reviewed this final rule in
accordance with Executive Order 13132
(64 FR 43255 (Aug. 4, 1999)), regarding
federalism. E.O. 13132 requires that
Federal agencies, to the extent possible,
refrain from limiting State policy
options, consult with States before
taking actions that would restrict States’
policy options, and take such actions
only when clear constitutional authority
exists and the problem is of national
scope.
Section 18(a) of the OSH Act states
that nothing in the Act shall prevent any
State agency or court from asserting
jurisdiction under State law over an
PO 00000
Frm 00093
Fmt 4701
Sfmt 4700
47345
occupational safety or health issue with
respect to which no standard is in effect
under Section 6 of the Act (29 U.S.C.
667(a)). Because this rulemaking
involves a ‘‘regulation’’ issued under
Sections 8 and 24 of the OSH Act (29
U.S.C. 657, 673), and not an
‘‘occupational safety and health
standard’’ issued under Section 6 of the
OSH Act (29 U.S.C. 655), the rule will
not preempt State law under Section
18(a) (see 29 U.S.C. 667(a)). The effect
of the final rule on States and territories
with OSHA-approved occupational
safety and health State Plans is
discussed in Section VIII, State Plans.
VIII. State Plans
Pursuant to Section 18 of the OSH Act
(29 U.S.C. 667) and the requirements of
29 CFR 1904.37, 1902.3(j), 1902.7,
1953.4(b), and 1956.10(i), within 6
months after publication of the final
OSHA rule, State Plans must
promulgate occupational injury and
illness recording and reporting
requirements that are substantially
identical to those in 29 CFR part 1904.
State Plans must have the same
requirements as Federal OSHA for
determining which injuries and
illnesses are recordable and how they
are recorded (29 CFR 1904.37(b)(1)). All
other part 1904 injury and illness
recording and reporting requirements
(for example, industry exemptions,
reporting of fatalities and
hospitalizations, record retention, or
employee involvement) that are
promulgated by State Plans may be
more stringent than, or supplemental to,
the Federal requirements, but, because
of the unique nature of the national
recordkeeping program, States must
consult with OSHA and obtain approval
of such additional or more stringent
reporting and recording requirements to
ensure that they will not interfere with
uniform reporting objectives (29 CFR
1904.37(b)(2)).
There are 29 State Plans. The States
and territories that cover both private
sector and public sector employers are
Alaska, Arizona, California, Hawaii,
Indiana, Iowa, Kentucky, Maryland,
Michigan, Minnesota, Nevada, New
Mexico, North Carolina, Oregon, Puerto
Rico, South Carolina, Tennessee, Utah,
Vermont, Virginia, Washington, and
Wyoming. Connecticut, Illinois, Maine,
Massachusetts, New Jersey, New York,
and the Virgin Islands have OSHAapproved State Plans that apply to State
and local government employees only.
IX. National Environmental Policy Act
OSHA has reviewed the provisions of
this final rule in accordance with the
requirements of the National
E:\FR\FM\21JYR2.SGM
21JYR2
47346
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
Environmental Policy Act (NEPA) of
1969 (42 U.S.C. 4321 et seq.), the
Council on Environmental Quality
(CEQ) NEPA regulations (40 CFR parts
1500–1508), and the Department of
Labor’s NEPA Procedures (29 CFR part
11). As a result of this review, OSHA
has determined that the final rule will
have no significant adverse effect on air,
water, or soil quality, plant or animal
life, use of land, or other aspects of the
environment.
X. Consultation and Coordination With
Indian Tribal Governments
OSHA reviewed this final rule in
accordance with Executive Order 13175
(65 FR 67249 (Nov. 9, 2000)) and
determined that it does not have ‘‘tribal
implications’’ as defined in that order.
The rule does not have substantial
direct effects on one or more Indian
Tribes, on the relationship between the
Federal Government and Indian Tribes,
or on the distribution of power and
responsibilities between the Federal
Government and Indian Tribes.
List of Subjects in 29 CFR Part 1904
Health statistics, Occupational safety
and health, Reporting and
recordkeeping requirements.
Authority and Signature
This document was prepared under
the direction of Douglas L. Parker,
Assistant Secretary of Labor for
Occupational Safety and Health, U.S.
Department of Labor, 200 Constitution
Avenue NW, Washington, DC 20210. It
is issued under Sections 8 and 24 of the
Occupational Safety and Health Act (29
U.S.C. 657, 673), Section 553 of the
Administrative Procedure Act (5 U.S.C.
553), and Secretary of Labor’s Order No.
8–2020 (85 FR 58393 (Sept. 18, 2020)).
Signed at Washington, DC, on July 12,
2023.
Douglas L. Parker,
Assistant Secretary of Labor for Occupational
Safety and Health.
For the reasons stated in the
preamble, OSHA amends part 1904 of
chapter XVII of title 29 as follows:
PART 1904—[AMENDED]
ddrumheller on DSK120RN23PROD with RULES2
Subpart E—Reporting Fatality, Injury
and Illness Information to the
Government
1. The authority citation for part 1904,
subpart E, is revised to read as follows:
■
Authority: 29 U.S.C. 657, 673, 5 U.S.C.
553, and Secretary of Labor’s Order No. 08–
2020 (85 FR 58393, Sept. 18, 2020) or 1–2012
(77 FR 3912, Jan. 25, 2012), as applicable.
■
2. Amend § 1904.41 as follows:
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
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. (i) If your establishment had
20–249 employees at any time during
the previous calendar year, and your
establishment is classified in an
industry listed in appendix A to subpart
E of this part, then you must
electronically submit information from
OSHA Form 300A Summary of 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.
(ii) If your establishment had 250 or
more employees at any time during the
previous calendar year, and this part
requires your establishment to keep
records, then you must electronically
submit information from OSHA Form
300A Summary of Work-Related Injuries
and Illnesses to OSHA or OSHA’s
designee. You must submit the
information once a year, no later than
the date listed in paragraph (c) of this
section of the year after the calendar
year covered by the form.
(2) Annual electronic submission of
information from OSHA Form 300 Log
of Work-Related Injuries and Illnesses
and OSHA Form 301 Injury and Illness
Incident Report by establishments with
100 or more employees in designated
industries. If your establishment had
100 or more employees at any time
during the previous calendar year, and
your establishment is classified in an
industry listed in appendix B to subpart
E of this part, then you must
electronically submit information from
OSHA Forms 300 and 301 to OSHA or
OSHA’s designee. You must submit the
information once a year, no later than
the date listed in paragraph (c) of this
section of the year after the calendar
year covered by the forms.
*
*
*
*
*
(b) * * *
(1) Does every employer have to
routinely make an annual electronic
submission of information from part
1904 injury and illness recordkeeping
forms to OSHA? No, only three
categories of employers must routinely
PO 00000
Frm 00094
Fmt 4701
Sfmt 4700
submit information from these forms.
The first category is establishments that
had 20–249 employees at any time
during the previous calendar year, and
are classified in an industry listed in
appendix A to this subpart;
establishments in this category must
submit the required information from
Form 300A to OSHA once a year. The
second category is establishments that
had 250 or more employees at any time
during the previous calendar year, and
are required by this part to keep records;
establishments in this category must
submit the required information from
Form 300A to OSHA once a year. The
third category is establishments that had
100 or more employees at any time
during the previous calendar year, and
are classified in an industry listed in
appendix B to this subpart;
establishments in this category must
also submit the required information
from Forms 300 and 301 to OSHA once
a year, in addition to the required
information from Form 300A.
Employers in these three categories
must submit the required information
by the date listed in paragraph (c) of this
section of the year after the calendar
year covered by the form (for example,
2024 for the 2023 form(s)). If your
establishment is not in any of these
three categories, then you must submit
the information to OSHA only if OSHA
notifies you to do so for an individual
data collection.
*
*
*
*
*
(9) If I have to submit information
under paragraph (a)(2) of this section,
do I have to submit all of the
information from the recordkeeping
forms? No, you are required to submit
all of the information from the forms
except the following:
(i) Log of Work-Related Injuries and
Illnesses (OSHA Form 300): Employee
name (column B).
(ii) Injury and Illness Incident Report
(OSHA Form 301): Employee name
(field 1), employee address (field 2),
name of physician or other health care
professional (field 6), facility name and
address if treatment was given away
from the worksite (field 7).
(10) My company uses numbers or
codes to identify our establishments.
May I use numbers or codes as the
establishment name in my submission?
Yes, you may use numbers or codes as
the establishment name. However, the
submission must include a legal
company name, either as part of the
establishment name or separately as the
company name.
(c) Reporting dates. Establishments
that are required to submit under
paragraph (a)(1) or (2) of this section
E:\FR\FM\21JYR2.SGM
21JYR2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
must submit all of the required
information by March 2 of the year after
the calendar year covered by the form(s)
(for example, by March 2, 2024, for the
forms covering 2023).
*
*
*
*
*
3. Revise appendix A to subpart E to
read as follows:
■
ddrumheller on DSK120RN23PROD with RULES2
NAICS
Appendix A to Subpart E of Part 1904—
Designated Industries for
§ 1904.41(a)(1)(i) Annual Electronic
Submission of Information From OSHA
Form 300A Summary of Work-Related
Injuries and Illnesses by Establishments
With 20–249 Employees in Designated
Industries
Industry
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
47347
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.
21:22 Jul 20, 2023
Jkt 259001
PO 00000
Frm 00095
Fmt 4701
Sfmt 4700
E:\FR\FM\21JYR2.SGM
21JYR2
47348
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
NAICS
Industry
8123 .......................
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 and OSHA Form 301
Injury and Illness Incident Report by
Establishments With 100 or More
Employees in Designated Industries
ddrumheller on DSK120RN23PROD with RULES2
NAICS
1111
1112
1113
1114
1119
1121
1122
1123
1129
1133
1141
1142
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
3379
4231
Industry
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
VerDate Sep<11>2014
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.
Logging.
Fishing.
Hunting and Trapping.
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 (except Aluminum) 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 (including Fixtures) Manufacturing.
Other Furniture Related Product Manufacturing.
Motor Vehicle and Motor Vehicle Parts and Supplies Merchant Wholesalers.
21:22 Jul 20, 2023
Jkt 259001
PO 00000
Frm 00096
Fmt 4701
Sfmt 4700
E:\FR\FM\21JYR2.SGM
21JYR2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations
NAICS
Industry
4233
4235
4239
4244
4248
4413
4422
4441
4442
4451
4522
4523
4533
4543
4811
4841
4842
4851
4852
4853
4854
4859
4871
4881
4883
4889
4911
4921
4931
5322
5621
5622
6219
6221
6222
6223
6231
6232
6233
6239
6243
7111
7112
7131
7211
7212
7223
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
.......................
*
*
*
*
Lumber and Other Construction Materials Merchant Wholesalers.
Metal and Mineral (except Petroleum) Merchant Wholesalers.
Miscellaneous Durable Goods 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.
Taxi and Limousine Service.
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.
Other Support Activities for 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 (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.
Vocational Rehabilitation Services.
Performing Arts Companies.
Spectator Sports.
Amusement Parks and Arcades.
Traveler Accommodation.
RV (Recreational Vehicle) Parks and Recreational Camps.
Special Food Services.
*
[FR Doc. 2023–15091 Filed 7–17–23; 8:45 am]
ddrumheller on DSK120RN23PROD with RULES2
BILLING CODE 4510–26–P
VerDate Sep<11>2014
21:22 Jul 20, 2023
Jkt 259001
PO 00000
Frm 00097
Fmt 4701
Sfmt 9990
E:\FR\FM\21JYR2.SGM
21JYR2
47349
Agencies
[Federal Register Volume 88, Number 139 (Friday, July 21, 2023)]
[Rules and Regulations]
[Pages 47254-47349]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-15091]
[[Page 47253]]
Vol. 88
Friday,
No. 139
July 21, 2023
Part II
Department of Labor
-----------------------------------------------------------------------
Occupational Safety and Health Administration
-----------------------------------------------------------------------
29 CFR Part 1904
Improve Tracking of Workplace Injuries and Illnesses; Final Rule
Federal Register / Vol. 88 , No. 139 / Friday, July 21, 2023 / Rules
and Regulations
[[Page 47254]]
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1904
[Docket No. OSHA-2021-0006]
RIN 1218-AD40
Improve Tracking of Workplace Injuries and Illnesses
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: OSHA is amending its occupational injury and illness
recordkeeping regulation to require certain employers to electronically
submit injury and illness information to OSHA that employers are
already required to keep under the recordkeeping regulation.
Specifically, OSHA is amending its regulation to require establishments
with 100 or more employees in certain designated industries to
electronically submit information from their OSHA Forms 300 and 301 to
OSHA once a year. OSHA will not collect employee names or addresses,
names of health care professionals, or names and addresses of
facilities where treatment was provided if treatment was provided away
from the worksite from the Forms 300 and 301. Establishments with 20 to
249 employees in certain industries will continue to be required to
electronically submit information from their OSHA Form 300A annual
summary to OSHA once a year. All establishments with 250 or more
employees that are required to keep records under OSHA's injury and
illness regulation will also continue to be required to electronically
submit information from their Form 300A to OSHA on an annual basis.
OSHA is also updating the NAICS codes used in appendix A, which
designates the industries required to submit their Form 300A data, and
is adding appendix B, which designates the industries required to
submit Form 300 and Form 301 data. In addition, establishments will be
required to include their company name when making electronic
submissions to OSHA. OSHA intends to post some of the data from the
annual electronic submissions on a public website after identifying and
removing information that could reasonably be expected to identify
individuals directly, such as individuals' names and contact
information.
DATES: This final rule becomes effective on January 1, 2024.
Collections of information: There are collections of information
contained in this final rule (see Section V, OMB Review Under the
Paperwork Reduction Act of 1995). Notwithstanding the general date of
applicability for the requirements contained in the final rule,
affected parties do not have to comply with the collections of
information until the Department of Labor publishes a separate document
in the Federal Register announcing that the Office of Management and
Budget has approved them under the Paperwork Reduction Act.
ADDRESSES: Electronic copies of this Federal Register document and news
releases are available at OSHA's website at https://www.osha.gov.
FOR FURTHER INFORMATION CONTACT:
For press inquiries: Frank Meilinger, Director, Office of
Communications, Occupational Safety and Health Administration, U.S.
Department of Labor; telephone (202) 693-1999; email:
[email protected].
For general information and technical inquiries: Lee Anne Jillings,
Director, Directorate of Technical Support and Emergency Management,
U.S. Department of Labor; telephone (202) 693-2300; email:
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. References and Exhibits
B. Introduction
C. Regulatory History
D. Related Litigation
E. Injury and Illness Data Collection
II. Legal Authority
A. Statutory Authority To Promulgate the Rule
B. Fourth Amendment Issues
C. Publication of Collected Data and FOIA
D. Reasoned Explanation for Policy Change
III. Summary and Explanation of the Final Rule
A. Section 1904.41(a)(1)(i) and (ii)--Annual Electronic
Submission of Information From OSHA Form 300A Summary of Work-
Related Injuries and Illnesses
1. Section 1904.41(a)(1)(i)--Establishments With 20-249
employees That Are Required To Submit Information From OSHA Form
300A
2. Section 1904.41(a)(1)(ii)--Establishments With 250 or More
Employees That Are Required To Submit Information From OSHA Form
300A
3. Restructuring of Previous Section 1904.41(a)(1) and (2) Into
Final Section 1904.41(a)(1)(i) and (ii)
4. Updating Appendix A
B. Section 1904.41(a)(2)--Annual Electronic Submission of OSHA
Form 300 Log of Work-Related Injuries and Illnesses and OSHA Form
301 Injury and Illness Incident Report by Establishments With 100 or
More Employees in Designated Industries)
1. Covered Establishments and Industries
a. The Size Threshold for Submitting Information From OSHA Forms
300 and 301
b. The Criteria for Determining the Industries in Appendix B to
Subpart E
c. Cut-Off Rates for Determining the Industries in Appendix B to
Subpart E
d. Using the Most Current Data To Determine Designated
Industries
e. Industries Included in Final Appendix B After Applying the
Final Criteria, Cut-Off Rates, and Data Sources
2. Information To Be Submitted
3. Publication of Electronic Data
4. Benefits of Collecting and Publishing Data From Forms 300 and
301
a. General Benefits of Collecting and Publishing Data From Forms
300 and 301
b. Beneficial Ways That OSHA Can Use The Data From Forms 300 and
301
c. Beneficial Ways That Employers Can Use the Data From Forms
300 and 301
d. Beneficial Ways That Employees Can Use the Data From Forms
300 and 301
e. Beneficial Ways That Federal and State Agencies Can Use the
Data From Forms 300 and 301
f. Beneficial Ways That Researchers Can Use the Data From Forms
300 and 301
g. Beneficial Ways That Workplace Safety Consultants Can Use the
Data From Forms 300 and 301
h. Beneficial Ways That Members of the Public and Other
Interested Parties Can Use the Data From Forms 300 and 301
5. The Freedom of Information Act (FOIA)
6. Safeguarding Individual Privacy (Direct Identification)
7. Indirect Identification of Individuals
8. The Experience of Other Federal Agencies
9. Risk of Cyber Attack
10. The Health Information Portability and Accountability Act
(HIPAA)
11. The Americans With Disabilities Act (ADA)
12. The Privacy Act
13. Privacy Impact Assessment
14. Other Issues Related to OSHA's Proposal To Require the
Submission of and Then Publish Certain Data From Establishments'
Forms 300 and 301
a. Miscellaneous Comments
b. The Effect of the Rule on the Accuracy of Injury and Illness
Records
c. Collecting and Processing the Data From Forms 300 and 301
Will Help OSHA Use Its Resources More Effectively
d. OSHA's Capacity To Collect and Process the Data From Forms
300 and 301
e. Data Submission
f. Tools To Make the Collected Data From Forms 300 and 301 More
Useful
C. Section 1904.41(b)(1)
D. Section 1904.41(b)(9)
1. Collecting Employee Names
2. Excluding Other Specified Fields
E. Section 1904.41(b)(10)
F. Section 1904.41(c)
G. Additional Comments Which Concern More Than One Section of
the Proposal
[[Page 47255]]
1. General Comments
2. Misunderstandings About Scope
3. Diversion of Resources
4. Lagging v. Leading Indicators
5. Employer Shaming
6. Impact on Employee Recruiting
7. Legal Disputes
8. No Fault Recordkeeping
9. Confidentiality of Business Locations
10. Employer-Vaccine-Mandate-Related Concerns
11. Constitutional Issues and OSHA's Authority To Publish
Information From Forms 300 and 301
a. The First Amendment
b. The Fourth Amendment
c. The Fifth Amendment
d. OSHA's Authority To Publish Information Submitted Under This
Rule
12. Administrative Issues
a. Public Hearing
b. The Advisory Committee on Construction Safety and Health
(ACCSH)
c. Reasonable Alternatives Considered
IV. Final Economic Analysis and Regulatory Flexibility Certification
A. Introduction
B. Changes From the Preliminary Economic Analysis (PEA)
(Reflecting Changes in the Final Rule From the Proposal)
1. Continued Submission of OSHA 300A Annual Summaries by
Establishments With 250 or More Employees
2. Additional Appendix B Industries
3. Updated Data
C. Cost
1. Wages
a. Wage Estimates in the PEA
b. Comments on OSHA's Wage Estimates
c. Wage Estimates in the FEA
2. Estimated Case Counts
3. Familiarization
4. Record Submission
5. Custom Forms
6. Batch-File Submissions
7. Software/System Upgrades Needed
8. Other Costs
a. Harm to Reputation
b. Additional Time Needed To Review for PII
c. Company Name
d. Training Costs
D. Effect on Prices
E. Budget Costs to the Government
F. Total Cost
G. Benefits
H. Economic Feasibility
I. Regulatory Flexibility Certification
V. OMB Review Under the Paperwork Reduction Act of 1995
A. Overview
B. Summary of Information Collection Requirements
VI. Unfunded Mandates
VII. Federalism
VIII. State Plans
IX. National Environmental Policy Act
X. Consultation and Coordination With Indian Tribal Governments
Authority and Signature
I. Background
A. References and Exhibits
In this preamble, OSHA references documents in Docket No. OSHA-
2021-0006, the docket for this rulemaking. The docket is available at
https://www.regulations.gov, the Federal eRulemaking Portal.
When citing exhibits in the docket, OSHA includes the term
``Document ID'' followed by the last four digits of the Document ID
number. For example, OSHA's preliminary economic analysis is in the
docket as OSHA-2021-0006-0002. Citations also include the attachment
number or other attachment identifier, if applicable, page numbers
(designated ``p.'' or ``Tr.'' for pages from a hearing transcript), and
in a limited number of cases a footnote number (designated ``Fn.''). In
a citation that contains two or more Document ID numbers, the Document
ID numbers are separated by semi-colons (e.g., ``Document ID 1231,
Attachment 1, p. 6; 1383, Attachment 1, p. 2'').
All materials in the docket, including public comments, supporting
materials, meeting transcripts, and other documents, are listed on
https://www.regulations.gov. However, some exhibits (e.g., copyrighted
material) are not available to read or download from that web page. All
materials in the docket, including copyrighted material, are available
for inspection through the OSHA Docket Office. Contact the OSHA Docket
Office at (202) 693-2350 (TTY (877) 889-5627) for assistance in
locating docket submissions.
B. Introduction
OSHA's regulation at 29 CFR part 1904 requires employers with more
than 10 employees in most industries to keep records of occupational
injuries and illnesses at their establishments. Employers covered by
the regulation must use three forms, or their equivalent, to record
recordable employee injuries and illnesses:
OSHA Form 300, the Log of Work-Related Injuries and
Illnesses. This form includes information about the employee's name,
job title, date of the injury or illness, where the injury or illness
occurred, description of the injury or illness (e.g., body part
affected), and the outcome of the injury or illness (e.g., death, days
away from work, job transfer or restriction).
OSHA Form 301, the Injury and Illness Incident Report.
This form includes the employee's name and address, date of birth, date
hired, and gender and the name and address of the health care
professional that treated the employee, as well as more detailed
information about where and how the injury or illness occurred.
OSHA Form 300A, the Annual Summary of Work-Related
Injuries and Illnesses. This form includes general information about an
employer's workplace, such as the average number of employees and total
number of hours worked by all employees during the calendar year. It
does not contain information about individual employees. Employers are
required to prepare this form at the end of each year and post the form
in a visible location in the workplace from February 1 to April 30 of
the year following the year covered by the form.
Section 1904.41 of the previous recordkeeping regulation also
required two groups of establishments to electronically submit injury
and illness data to OSHA once a year.
Sec. 1904.41(a)(1) required establishments with 250 or
more employees in industries that are required to routinely keep OSHA
injury and illness records to electronically submit information from
the Form 300A summary to OSHA once a year.
Sec. 1904.41(a)(2) required establishments with 20-249
employees in certain designated industries (those listed on appendix A
of part 1904 subpart E) to electronically submit information from their
Form 300A summary to OSHA once a year.
Also, Sec. 1904.41(a)(4) required each establishment that must
electronically submit injury and illness information to OSHA to provide
their Employer Identification Number (EIN) in their submittal.
Under this final rule, three groups of establishments will be
required to electronically submit information from their injury and
illness recordkeeping forms to OSHA once a year.
Establishments with 20-249 employees in certain designated
industries (listed in appendix A to subpart E) will continue to be
required to electronically submit information from their Form 300A
annual summary to OSHA once a year (final Sec. 1904.41(a)(1)(i)). OSHA
is also updating the NAICS codes used for appendix A to subpart E.
Establishments with 250 or more employees in industries
that are required to routinely keep OSHA injury and illness records
will continue to be required to electronically submit information from
the Form 300A to OSHA once a year (final Sec. 1904.41(a)(1)(ii)).
Establishments with 100 or more employees in certain
designated industries (listed in new appendix B to subpart E) will be
newly required to electronically submit information from their OSHA
Forms 300 and 301 to OSHA once a year (final Sec. 1904.41(a)(2)). The
industries listed in new appendix B were chosen based on
[[Page 47256]]
three measures of industry hazardousness.
OSHA will also require establishments to include their company name
when making electronic submissions to OSHA (final Sec.
1904.41(b)(10)).
Additionally, although publication is not part of the regulatory
requirements of this final rule, OSHA intends to post the collected
establishment-specific, case-specific injury and illness information
online. As discussed in more detail below, the agency will seek to
minimize the possibility of the release of information that could
reasonably be expected to identify individuals directly, such as
employee name, contact information, and name of physician or health
care professional. OSHA will minimize the possibility of releasing such
information in multiple ways, including by limiting the worker
information collected, designing the collection system to provide extra
protections for some of the information that employers will be required
to submit, withholding certain fields from public disclosure, and using
automated software to identify and remove information that could
reasonably be expected to identify individuals directly.
OSHA has determined that the data collection will assist the agency
in its statutory mission to assure safe and healthful working
conditions for working people (see 29 U.S.C. 651(b)). In addition, OSHA
has determined that the expanded public access to establishment-
specific, case-specific injury and illness data will allow employers,
employees, potential employees, employee representatives, customers,
potential customers, researchers, and the general public to make more
informed decisions about workplace safety and health at a given
establishment. OSHA believes that this accessibility will ultimately
result in the reduction of occupational injuries and illnesses.
OSHA estimates that this rule will have economic costs of $7.7
million per year, including $7.1 million per year to the private
sector, with average costs of $136 per year for affected establishments
with 100 or more employees, annualized over 10 years with a discount
rate of seven percent. The agency believes that the annual benefits,
while unquantified, significantly exceed the annual costs.
C. Regulatory History
As discussed in section II, Legal Authority, the Occupational
Safety and Health Act (OSH Act or Act) requires employers to keep
records of employee illnesses and injuries as prescribed by OSHA
through regulation. OSHA's regulations on recording and reporting
occupational injuries and illnesses (29 CFR part 1904) were first
issued in 1971 (36 FR 12612 (July 2, 1971)). These regulations require
the recording of work-related injuries and illnesses that involve
death, loss of consciousness, days away from work, restricted work or
transfer to another job, medical treatment beyond first aid, or
diagnosis of a significant injury or illness by a physician or other
licensed health care professional (29 CFR 1904.7).
On July 29, 1977, OSHA amended these regulations to partially
exempt businesses having ten or fewer employees during the previous
calendar year from the requirement to record occupational injuries and
illnesses (42 FR 38568). Then, on December 28, 1982, OSHA amended the
regulations again to partially exempt establishments in certain lower-
hazard industries from the requirement to record occupational injuries
and illnesses (47 FR 57699).\1\ OSHA also amended the recordkeeping
regulations in 1994 (Reporting of Fatality or Multiple Hospitalization
Incidents, 59 FR 15594) and 1997 (Reporting Occupational Injury and
Illness Data to OSHA, 62 FR 6434). Under the version of Sec. 1904.41
added by the 1997 final rule, OSHA began requiring certain employers to
submit their 300A data to OSHA annually through the OSHA Data
Initiative (ODI). Through the ODI, OSHA collected data on injuries and
acute illnesses attributable to work-related activities in the private
sector from approximately 80,000 establishments in selected high-hazard
industries. The agency used these data to calculate establishment-
specific injury and illness rates, and, in combination with other data
sources, to target enforcement and compliance assistance activities.
---------------------------------------------------------------------------
\1\ All employers covered by the OSH Act are covered by OSHA's
recordkeeping and reporting requirements found in 29 CFR part 1904.
However, there are several exceptions to OSHA's recordkeeping
requirements that apply unless OSHA or the Bureau of Labor
Statistics (BLS) informs them in writing that they must keep records
(29 CFR 1904.1(a)(1), 1904.2(a)(1)). For example, employers with ten
or fewer employees, as well as businesses with establishments in
certain industries, are partially exempt from keeping OSHA injury
and illness records (29 CFR 1904.1, 1904.2). The provision excepts
most employers covered by the OSH Act. All employers covered by the
OSH Act, including those that are partially exempt from keeping
injury and illness records, are still required to report work-
related fatalities, in-patient hospitalizations, amputations, and
losses of an eye to OSHA within specified timeframes under 29 CFR
1904.39.
---------------------------------------------------------------------------
On January 19, 2001, OSHA issued a final rule amending its
requirements for the recording and reporting of occupational injuries
and illnesses (29 CFR parts 1904 and 1952), along with the forms
employers use to record those injuries and illnesses (66 FR 5916). The
final rule also updated the list of industries that are partially
exempt from recording occupational injuries and illnesses.
On September 18, 2014, OSHA again amended the regulations to
require employers to report work-related fatalities and severe
injuries--in-patient hospitalizations, amputations, and losses of an
eye--to OSHA and to allow electronic reporting of these events (79 FR
56130). The final rule also revised the list of industries that are
partially exempt from recording occupational injuries and illnesses.
On May 12, 2016, OSHA amended the regulations on recording and
reporting occupational injuries and illnesses to require employers, on
an annual basis, to submit electronically to OSHA injury and illness
information that employers are already required to keep under part 1904
(81 FR 29624). Under the 2016 revisions, establishments with 250 or
more employees that are routinely required to keep records were
required to electronically submit information from their OSHA Forms
300, 300A, and 301 to OSHA or OSHA's designee once a year, and
establishments with 20 to 249 employees in certain designated
industries were required to electronically submit information from
their OSHA annual summary (Form 300A) to OSHA or OSHA's designee once a
year. In addition, that final rule required employers, upon
notification, to electronically submit information from part 1904
recordkeeping forms to OSHA or OSHA's designee. These provisions became
effective on January 1, 2017, with an initial submission deadline of
July 1, 2017, for 2016 Form 300A data. That submission deadline was
subsequently extended to December 15, 2017 (82 FR 55761). The initial
submission deadline for electronic submission of information from OSHA
Forms 300 and 301 was July 1, 2018. Because of a subsequent rulemaking,
OSHA never received the data submissions from Forms 300 and 301 that
the 2016 final rule anticipated.
On January 25, 2019, OSHA issued a final rule that amended the
recordkeeping regulations to remove the requirement for establishments
with 250 or more employees that are routinely required to keep records
to electronically submit information from their OSHA Forms 300 and 301
to OSHA or OSHA's designee once a year. As a result, those
establishments were required to electronically submit only information
from their OSHA 300A
[[Page 47257]]
annual summary. The 2019 final rule also added a requirement for
covered employers to submit their Employer Identification Number (EIN)
electronically along with their injury and illness data submission (83
FR 36494, 84 FR 380, 395-97).
On March 30, 2022, OSHA issued a notice of proposed rulemaking
(NPRM or proposed rule) proposing to amend the recordkeeping
regulations to require establishments with 100 or more employees in
certain designated industries to electronically submit information from
their OSHA Forms 300 and 301 to OSHA once a year (87 FR 18528). In
addition, OSHA proposed to continue the requirement for establishments
with 20 or more employees in certain designated industries to
electronically submit data from their OSHA Form 300A annual summary to
OSHA once a year. OSHA also proposed to update the appendices
containing the designated industries covered by the electronic
submission requirement and to remove the requirement for establishments
with 250 or more employees not in a designated industry to
electronically submit information from their Form 300A to OSHA on an
annual basis. Further, OSHA expressed its intention to post the data
from the proposed electronic submission requirement on a public website
after identifying and removing information that could reasonably be
expected to identify individuals directly, such as individuals' names
and contact information. Finally, OSHA proposed to require
establishments to include their company name when making electronic
submissions to OSHA.
Comments on the NPRM were initially due on May 30, 2022 (87
FR18528). However, in response to requests for an extension, OSHA
published a second Federal Register notice on May 25, 2022, extending
the comment period until June 30, 2022 (87 FR 31793). By the end of the
extended comment period, OSHA had received 87 comments on the proposed
rule. The issues raised in those comments are addressed herein.
D. Related Litigation
Both the 2016 and 2019 OSHA final rules that addressed the
electronic submission of injury and illness data were challenged in
court. In Texo ABC/AGC, Inc., et al. v. Acosta, No. 3:16-cv-01998-L
(N.D. Tex. filed July 8, 2016), and NAHB, et al. v. Acosta, No. 5:17-
cv-00009-PRW (W.D. Okla. filed Jan. 4, 2017), industry groups
challenged OSHA's 2016 final rule that required establishments with 250
or more employees to electronically submit data from their OSHA Forms
300 and 301 to OSHA (as well as other requirements not relevant to this
rulemaking). The complaints alleged that the publication of
establishment-specific injury and illness data would lead to misuse of
confidential and proprietary information by the public and special
interest groups. The complaints also alleged that publication of the
data exceeds OSHA's authority under the OSH Act and is unconstitutional
under the First Amendment to the U.S. Constitution. After OSHA
published a notice in the Federal Register on June 28, 2017, noting
that the agency planned to publish a proposal that would reconsider the
requirements of the 2016 final rule (82 FR 29261), Texo was
administratively closed. The plaintiffs in NAHB dropped their claims
relating to the 300 and 301 data submission requirement after the 2019
final rule was published (and moved forward with their other claims,
which are still pending in the Western District of Oklahoma).
In Public Citizen Health Research Group et al. v. Pizzella, No.
1:19-cv-00166 (D.D.C. filed Jan. 25, 2019) and State of New Jersey et
al. v. Pizzella, No. 1:19-cv-00621 (D.D.C. filed Mar. 6, 2019), a group
of public health organizations and a group of States filed separate
lawsuits challenging OSHA's 2019 final rule rescinding the requirement
for certain employers to submit the data from OSHA Forms 300 and 301 to
OSHA electronically each year. The U.S. District Court for the District
of Columbia resolved the two cases in a consolidated opinion and held
that rescinding the provision was within the agency's discretion
(Public Citizen Health Research Group et al. v. Pizzella, No. 1:19-cv-
00166-TJK (D.D.C. Jan. 11, 2021)). The court first dismissed Public
Citizen's complaint for lack of subject-matter jurisdiction. Next,
turning to the merits of the States' complaint, the court held that
OSHA's rescission of the Form 300 and Form 301 data-submission
requirements was within the agency's discretion based on its
rebalancing of the ``uncertain benefits'' of collecting the 300 and 301
data against the diversion of OSHA's resources from other efforts and
potential privacy harms to employees. The court also rejected the
plaintiffs' assertion that OSHA's reasons for the 2019 final rule were
internally inconsistent. Both groups of plaintiffs have appealed to the
U.S. Court of Appeals for the District of Columbia Circuit (Nos. 21-
5016, 21-5018).
Additionally, since 2020, the Department of Labor (DOL) has
received multiple adverse decisions regarding the release of
electronically submitted 300A data under the Freedom of Information Act
(FOIA). In each of the cases, OSHA argued that electronically submitted
300A injury and illness data are exempt from disclosure pursuant to the
confidentiality exemption in FOIA Exemption 4. Two courts, one in the
U.S. District Court for the Northern District of California and another
in the U.S. District Court for the District of Columbia, disagreed with
OSHA's position (see Center for Investigative Reporting, et al., v.
Department of Labor, No. 4:18-cv-02414-DMR, 2020 WL 2995209 (N.D. Cal.
June 4, 2020); Public Citizen Foundation v. United States Department of
Labor, et al., No. 1:18-cv-00117 (D.D.C. June 23, 2020)). In addition,
on July 6, 2020, the Department received an adverse ruling from a
magistrate judge in the Northern District of California in a FOIA case
involving Amazon fulfillment centers. In that case, plaintiffs sought
the release of individual 300A forms, which consisted of summaries of
Amazon's work-related injuries and illnesses and which were provided to
OSHA compliance officers during specific OSHA inspections of Amazon
fulfillment centers in Ohio and Illinois (see Center for Investigative
Reporting, et al., v. Department of Labor, No. 3:19-cv-05603-SK, 2020
WL 3639646 (N.D. Cal. July 6, 2020)).
In holding that FOIA Exemption 4 was inapplicable, the courts
rejected OSHA's position that electronically submitted 300A injury and
illness data are covered under the confidentiality exemption in FOIA
Exemption 4. The decisions noted that the 300A form is posted in the
workplace for three months and that there is no expectation that the
employer must keep these data confidential or private. As a result,
OSHA provided the requested 300A data to the plaintiffs, and posted
collected 300A data on its public website beginning in August 2020. The
data are available at https://www.osha.gov/Establishment-Specific-Injury-and-Illness-Data and include the submissions for calendar years
2016, 2017, 2018, 2019, 2020, and 2021.
E. Injury and Illness Data Collection
Currently, two U.S. Department of Labor data collections request
and compile information from the OSHA injury and illness records that
certain employers are required to keep under 29 CFR part 1904: the
annual collection conducted by OSHA under 29 CFR 1904.41 (Electronic
Submission of Employer Identification Number (EIN) and Injury and
Illness Records to
[[Page 47258]]
OSHA), and the annual Survey of Occupational Injuries and Illnesses
(SOII) conducted by the Bureau of Labor Statistics (BLS) under 29 CFR
1904.42. This final rule amends the regulation at Sec. 1904.41. It
does not change the SOII or the authority for the SOII set forth in
Sec. 1904.42.
The BLS SOII is an establishment-based survey used to estimate
nationally representative incidence rates and counts of workplace
injuries and illnesses. It also provides detailed case and demographic
data for cases that involve one or more days away from work (DAFW) and
for days of job transfer and restriction (DJTR). Each year, BLS
collects data from Forms 300, 301, and 300A from a scientifically
selected probability sample of about 230,000 establishments, covering
nearly all private-sector industries, as well as State and local
government. Title 44 U.S.C. 3572 prohibits BLS from releasing
establishment-specific and case-specific data to the general public or
to OSHA. However, BLS has modified its collection procedures to be able
to automatically import certain Form 300A submissions from the OSHA ITA
into the BLS SOII Internet Data Collection Facility (IDCF). As
discussed below, the Department is continuing to evaluate opportunities
to further reduce duplicative reporting.
II. Legal Authority
A. Statutory Authority To Promulgate the Rule
OSHA is issuing this final rule pursuant to authority expressly
granted by several provisions of the OSH Act that address the recording
and reporting of occupational injuries and illnesses. Section 2(b)(12)
of the OSH Act states that one of the purposes of the OSH Act is to
``assure so far as possible . . . safe and healthful working conditions
. . . by providing for appropriate reporting procedures . . . which . .
. will help achieve the objectives of th[e] Act and accurately describe
the nature of the occupational safety and health problem'' (29 U.S.C.
651(b)(12)). Section 8(c)(1) requires each employer to ``make, keep and
preserve, and make available to the Secretary [of Labor] . . . , such
records regarding his activities relating to this Act as the Secretary
. . . may prescribe by regulation as necessary or appropriate for the
enforcement of this Act or for developing information regarding the
causes and prevention of occupational accidents and illnesses'' (29
U.S.C. 657(c)(1)). Section 8(c)(2) directs the Secretary to prescribe
regulations ``requiring employers to maintain accurate records of, and
to make periodic reports on, work-related deaths, injuries and
illnesses other than minor injuries requiring only first aid treatment
and which do not involve medical treatment, loss of consciousness,
restriction of work or motion, or transfer to another job'' (29 U.S.C.
657(c)(2)).
Section 8(g)(1) authorizes the Secretary ``to compile, analyze, and
publish, whether in summary or detailed form, all reports or
information obtained under this section'' (29 U.S.C. 657(g)(1)).
Section 8(g)(2) of the Act broadly empowers the Secretary to
``prescribe such rules and regulations as he may deem necessary to
carry out [his] responsibilities under th[e] Act'' (29 U.S.C.
657(g)(2)).
Section 24 of the OSH Act (29 U.S.C. 673) contains a similar grant
of authority. This section requires the Secretary to ``develop and
maintain an effective program of collection, compilation, and analysis
of occupational safety and health statistics'' and ``compile accurate
statistics on work injuries and illnesses which shall include all
disabling, serious, or significant injuries and illnesses . . .'' (29
U.S.C. 673(a)). Section 24 also requires employers to ``file such
reports with the Secretary as he shall prescribe by regulation'' (29
U.S.C. 673(e)). These reports are to be based on ``the records made and
kept pursuant to section 8(c) of this Act'' (29 U.S.C. 673(e)).
Section 20 of the Act (29 U.S.C. 669) contains additional implicit
authority for collecting and disseminating data on occupational
injuries and illnesses. Section 20(a) empowers the Secretaries of Labor
and Health and Human Services to consult on research concerning
occupational safety and health problems, and provides for the use of
such research, ``and other information available,'' in developing
criteria on toxic materials and harmful physical agents. Section 20(d)
states that ``[i]nformation obtained by the Secretary . . . under this
section shall be disseminated by the Secretary to employers and
employees and organizations thereof'' (29 U.S.C. 669(d)).
The OSH Act authorizes the Secretary of Labor to issue two types of
occupational safety and health rules: standards and regulations.
Standards, which are authorized by Section 6 of the Act (29 U.S.C.
655), aim to correct particular identified workplace hazards, while
regulations further the general enforcement and detection purposes of
the OSH Act (see Workplace Health & Safety Council v. Reich, 56 F.3d
1465, 1468 (D.C. Cir. 1995) (citing La. Chem. Ass'n v. Bingham, 657
F.2d 777, 781-82 (5th Cir. 1981)); United Steelworkers of Am. v.
Auchter, 763 F.2d 728, 735 (3d Cir. 1985)). Recordkeeping requirements
promulgated under the Act are characterized as regulations (see 29
U.S.C. 657 (using the term ``regulations'' to describe recordkeeping
requirements); see also Workplace Health & Safety Council v. Reich, 56
F.3d 1465, 1468 (D.C. Cir. 1995) (citing La. Chem. Ass'n. v. Bingham,
657 F.2d 777, 781-82 (5th Cir. 1981); United Steelworkers of Am. v.
Auchter, 763 F.2d 728, 735 (3d Cir. 1985)).
B. Fourth Amendment Issues
This final rule does not infringe on employers' Fourth Amendment
rights. The Fourth Amendment protects against searches and seizures of
private property by the government, but only when a person has a
``legitimate expectation of privacy'' in the object of the search or
seizure (Rakas v. Illinois, 439 U.S. 128, 143-47 (1978)). There is
little or no expectation of privacy in records that are required by the
government to be kept and made available (Free Speech Coalition v.
Holder, 729 F. Supp. 2d 691, 747, 750-51 (E.D. Pa. 2010) (citing
cases); United States v. Miller, 425 U.S. 435, 442-43 (1976); cf.
Shapiro v. United States, 335 U.S. 1, 33 (1948) (no Fifth Amendment
interest in required records)). Accordingly, the Fourth Circuit held,
in McLaughlin v. A.B. Chance, that an employer has little expectation
of privacy in the records of occupational injuries and illnesses kept
pursuant to OSHA regulations and must disclose them to the agency on
request (842 F.2d 724, 727-28 (4th Cir. 1988)).
Even if there were an expectation of privacy, the Fourth Amendment
prohibits only unreasonable intrusions by the government (Kentucky v.
King, 131 S. Ct. 1849, 1856 (2011)). The information submission
requirements in this final rule are reasonable. The requirements serve
a substantial government interest in the health and safety of workers,
have a strong statutory basis, and rest on reasonable, objective
criteria for determining which employers must report information to
OSHA (see New York v. Burger, 482 U.S. 691, 702-703 (1987)).
OSHA notes that two courts have held, contrary to A.B. Chance, that
the Fourth Amendment requires prior judicial review of the
reasonableness of an OSHA field inspector's demand for access to injury
and illness logs before the agency could issue a citation for denial of
access (McLaughlin v. Kings Island, 849 F.2d 990 (6th Cir. 1988); Brock
v. Emerson Electric Co., 834 F.2d
[[Page 47259]]
994 (11th Cir. 1987)). Those decisions are inapposite here. The courts
based their rulings on a concern that field enforcement staff had
unbridled discretion to choose the employers they would inspect and the
circumstances in which they would demand access to employer records.
The Emerson Electric court specifically noted that in situations where
``businesses or individuals are required to report particular
information to the government on a regular basis[,] a uniform statutory
or regulatory reporting requirement [would] satisf[y] the Fourth
Amendment concern regarding the potential for arbitrary invasions of
privacy'' (834 F.2d at 997, n.2). This rule, like that hypothetical,
establishes general reporting requirements based on objective criteria
and does not vest field staff with any discretion. The employers that
are required to report data, the information they must report, and the
time when they must report it are clearly identified in the text of the
rule and in supplemental notices that will be published pursuant to the
Paperwork Reduction Act.
C. Publication of Collected Data and FOIA
FOIA generally supports OSHA's intention to publish information on
a publicly available website. FOIA provides that certain Federal agency
records must be routinely made ``available for public inspection in an
electronic format'' (see 5 U.S.C. 552(a)(2) (2016)). Subsection
(a)(2)(D)(ii) provides that agencies must include any records processed
and disclosed in response to a FOIA request that ``the agency
determines have become or are likely to become the subject of
subsequent requests for substantially the same records'' or ``have been
requested 3 or more times.''
Based on its experience, OSHA believes that the recordkeeping
information from the Forms 300, 301, and 300A required to be submitted
under this rule will likely be the subject of multiple FOIA requests in
the future. Consequently, the agency plans to place the recordkeeping
information that will be posted on the public OSHA website in its
Electronic FOIA Library. Since agencies may ``withhold'' (i.e., not
make available) a record (or portion of such a record) if it falls
within a FOIA exemption, just as they can do in response to FOIA
requests, OSHA will place the published information in its FOIA Library
consistent with all FOIA exemptions.
D. Reasoned Explanation for Policy Change
When a Federal agency action changes or reverses prior policy, that
action is subject to the same standard of review as an action that
addresses an issue for the first time or is consistent with prior
policy (F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 514-15
(2009)). As with any other agency action, agencies must simply
``provide a reasoned explanation for the change'' (Encino Motorcars,
LLC v. Navarro, 579 U.S. 211, 221 (2016)). An agency that is changing
policy must ``display awareness that it is changing position,'' but
``need not demonstrate . . . that the reasons for the new policy are
better than the reasons for the old one''; ``it suffices that the new
policy is permissible under the statute, that there are good reasons
for it, and that the agency believes it to be better, which the
conscious change of course adequately indicates'' (F.C.C., 556 U.S. at
515; accord DHS v. Regents of Univ. of California, 140 S. Ct. 1891
(2020); Encino Motorcars, LLC, 579 at 221; see also Advocates for
Highway & Auto Safety v. FMCSA, 41 F.4th 586 (D.C. Cir. 2022)
(upholding 2020 change to 2015 rule); Overdevest Nurseries, L.P. v.
Walsh, 2 F. 4th 977 (D.C. Cir. 2021) (upholding 2010 change to 2008
rule)). In sum, the Administrative Procedure Act imposes ``no special
burden when an agency elects to change course'' (Home Care Ass'n of Am.
v. Weil, 799 F.3d 1084, 1095 (D.C. Cir. 2015)).
Although agencies may need to provide more detailed explanations
for changes in policy that ``engendered serious reliance interests,''
F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009), OSHA
has found no such reliance interests at stake in this rulemaking. The
prior policy, contained within the 2019 final recordkeeping rule,
represented a return to the pre-2016 status quo wherein large employers
were not required to submit their Form 300 and Form 301 information to
OSHA. Essentially, the prior policy relieved employers of the
requirement to incur the costs they would have had to incur to comply
with the 2016 final rule. Therefore, the prior policy did not require
employers to take any steps or invest any resources to comply with it.
Further, OSHA made it clear in the 2019 final rule that its decision
was based on a temporal weighing of the potential risks to privacy
against the benefits of collecting the data (e.g., ``OSHA has
determined that because it already has systems in place to use the 300A
data for enforcement targeting and compliance assistance without
impacting worker privacy, and because the Form 300 and 301 data would
provide uncertain additional value, the Form 300A data are sufficient
for enforcement targeting and compliance assistance at this time'' (84
FR 392)). Employers were therefore placed on notice that the policy
announced in the 2019 rule could change based on OSHA's weighing of the
relevant considerations over time, further alleviating any reliance
interests the rule might have engendered. In any event, OSHA provides
detailed and specific reasons for the change in prior policy throughout
this preamble.\2\
---------------------------------------------------------------------------
\2\ OSHA has determined that it is necessary and appropriate to
require certain establishments to electronically submit case-
specific, establishment-specific data from their Forms 300 and 301
to OSHA. Any claimed reliance interest in the prior policy, which
did not contain that requirement, is outweighed by the significant
benefits to occupational safety and health, discussed in Section
III.B.4 of the Summary and Explanation, that OSHA expects to accrue
from this rule (see Regents of the Univ. of California, 140 S. Ct.
at 1914 (it is ``the agency's job'' to determine ``in the particular
context before it, that other interests and policy concerns outweigh
any reliance interests'')).
---------------------------------------------------------------------------
III. Summary and Explanation of the Final Rule
OSHA is amending its occupational injury and illness recordkeeping
regulations at 29 CFR part 1904 to require certain employers to
electronically submit injury and illness information to OSHA that
employers are already required to keep. Specifically, this final rule
requires establishments with 100 or more employees in certain
designated industries (i.e., the industries on appendix B to subpart E
of part 1904) to electronically submit information from their OSHA
Forms 300 and 301 to OSHA once a year. OSHA will not collect certain
information, like employee and healthcare provider names and addresses,
from the Forms 300 and 301 in order to protect the privacy of workers
and other individuals identified on those forms. In addition, the final
rule retains the requirements for the annual electronic submission of
information from the Form 300A annual summary. Establishments with 20
to 249 employees in certain industries (i.e., those on appendix A to
subpart E of part 1904) will continue to be required to electronically
submit information from their OSHA Form 300A to OSHA once a year. And,
all establishments with 250 or more employees that are required to keep
records under part 1904 will continue to be required to electronically
submit information from their Form 300A to OSHA once a year. In
addition, the final rule requires establishments to
[[Page 47260]]
include their legal company name as part of their annual submission.
OSHA intends to post some of the information from these annual
electronic submissions on a public website after removing any submitted
information that could reasonably be expected to identify individuals
directly. OSHA received a number of comments on the proposed rule,
which was published in March 2022.
Many commenters strongly support this rulemaking effort (e.g.,
Docket IDs 0008, 0026, 0029, 0033, 0040, 0047, 0048, 0049, 0061, 0063,
0067, 0069, 0073, 0084, 0089), while others are strenuously opposed
(e.g., Docket IDs 0043, 0050, 0052, 0053, 0058, 0059, 0062, 0088,
0090). Several commenters requested that OSHA withdraw the proposed
rule (e.g., Docket IDs 0042, 0065, 0075). Organizations that represent
employees generally advocated for OSHA to proceed with the rulemaking,
arguing that collecting and publishing workplace illness and injury
information will lead to improvements in worker safety and health in a
number of different ways. Organizations commenting on behalf of
employers argued, in many cases, that the required submission and
subsequent publication of this information could harm businesses or
result in violations of employees' privacy. OSHA has evaluated the
public comments and other evidence in the record and agrees with
commenters who believe that electronic submission of worker injury and
illness information to OSHA will lead to safer workplaces. The agency
has decided to move forward with a final rule requiring electronic
submission of this information.
Public comments regarding the final regulatory provisions and
specific issues related to the submission and publication of workplace
injury and illness information are discussed throughout this preamble.
The Summary and Explanation is organized by regulatory provision, with
issues related to each provision discussed in the section for that
provision. Comments not specifically related to a regulatory provision
and comments that apply to the rulemaking in general are addressed at
the end of the Summary and Explanation. OSHA's economic analysis and
related issues and comments are discussed in Section IV, Final Economic
Analysis, following the Summary and Explanation.
A. Section 1904.41(a)(1)(i) and (ii)--Annual Electronic Submission of
Information From OSHA Form 300A Summary of Work-Related Injuries and
Illnesses
The final rule requires electronic submission of Form 300A
information from two categories of establishments. First, Sec.
1904.41(a)(1)(i) requires establishments with 20-249 employees that are
in an industry listed in appendix A of subpart E of part 1904 to
electronically submit information from their Form 300A to OSHA. The
industries included on appendix A are listed by the NAICS codes from
2017. Second, Sec. 1904.41(a)(1)(ii) requires establishments with 250
or more employees that are required to keep records under part 1904 to
electronically submit their Form 300A information to OSHA. For all
establishments, the size of the establishment is determined based on
how many employees the establishment had during the previous calendar
year. Data must be submitted annually, for the previous calendar year,
by the date specified in Sec. 1904.41(c), which is March 2.
As discussed in more detail below, the requirements for
establishment submission of Form 300A information under the final rule
are substantively identical to the requirements previously found in
Sec. 1904.41(a)(1) and (a)(2). In other words, all establishments with
250 or more employees are still required to submit information from
Form 300A, and establishments with 20-249 employees in industries on
appendix A of subpart E are still required to submit information from
their Form 300A. However, OSHA has made minor revisions to the language
of final Sec. 1904.41(a)(1)(i) and (ii), and the final regulatory text
of both provisions has been restructured, with final Sec.
1904.41(a)(1)(i) addressing the Form 300A submission requirements for
establishments with 20-249 employees and final Sec. 1904.41(a)(1)(ii)
addressing the Form 300A submission requirements for establishments
with 250 or more employees. As discussed elsewhere in this preamble,
final Sec. 1904.41(a)(2) addresses the submission requirements for
OSHA Forms 300 and 301 by establishments with 100 or more employees in
the industries listed in appendix B. The final rule's requirements in
Sec. 1904.41(a)(1) are discussed below, along with the proposed
provisions and related evidence in the rulemaking record.
1. Section 1904.41(a)(1)(i)--Establishments With 20-249 Employees That
Are Required To Submit Information From OSHA Form 300A
Under proposed Sec. 1904.41(a)(1), establishments that had 20 or
more employees at any time during the previous calendar year, and that
are classified in an industry listed in appendix A to subpart E, would
have been required to electronically submit information from their OSHA
Form 300A to OSHA or OSHA's designee once a year. As OSHA explained in
the preamble to the NPRM, this proposed provision was essentially the
same as the previous requirements. OSHA requested comment on proposed
Sec. 1904.41(a)(1) generally.
OSHA did not receive many comments specifically about the proposed
continuation of the requirement for certain establishments with 20 or
more employees to submit their Form 300A data electronically. The
Laborers Health and Safety Fund of North America stated that the
proposal for establishments with 20 or more employees in certain high-
hazard industries to electronically submit Form 300A data to OSHA
``must be a requirement,'' and emphasized the value of the data for
numerous interested parties (Docket ID 0080). The Communications
Workers of America (CWA) urged OSHA to expand the submission
requirements for the 300A by requiring all establishments with at least
20 employees to submit information from the Form 300A, instead of
limiting the requirement to only those industries on appendix A (Docket
ID 0092). In addition, the National Federation of Independent Business
(NFIB) commented on this provision, noting that ``the proposed rule
lowers the previous threshold that triggers a duty to file with OSHA
automatically (i.e., without any request from OSHA) from 250 or more
employees to 20 or more employees, increasing the number of small and
independent businesses within the appendix A industries required to
submit Form 300A'' (Docket ID 0036). However, NFIB's comment appears to
misunderstand the previous requirements. As OSHA explained in the
preamble to the proposed rule, establishments with 20-249 employees, in
industries listed in appendix A, were already required to
electronically submit information from their OSHA 300A to OSHA every
year (87 FR18535-6). OSHA was not proposing an expansion of this
requirement.
Having reviewed the evidence in the record, OSHA has decided to
retain the
[[Page 47261]]
requirement for establishments with 20-249 employees to annually submit
their Form 300A data to OSHA. As noted by the Laborers Health and
Safety Fund of North America and discussed further below, this
requirement provides a good deal of useful data to many types of
interested parties and should not be displaced. OSHA acknowledges the
comments supporting expansion of the previous requirement but notes
that expanding the requirement for submission of Form 300A data to all
establishments with 20-249 employees that are covered by part 1904
would expand the data collection to a total of about 557,000
establishments with 20-249 employees, according to 2019 County Business
Patterns data (https://www.census.gov/programs-surveys/cbp/data/datasets.html). In contrast, OSHA estimates that about 463,000
establishments with 20-249 employees in industries that are in appendix
A will be required to submit data under the final rule (https://www.census.gov/programs-surveys/cbp/data/datasets.html). OSHA does not
believe, at this time, that the benefits from the additional data
collection would outweigh the disadvantages of the additional time and
resources required for compliance.
In the previous regulation, this requirement was at Sec.
1904.41(a)(2). In the final rule, it is at Sec. 1904.41(a)(1)(i). This
final rule will not impose any new requirements on establishments with
20-249 employees to electronically submit information from their Form
300A to OSHA. All establishments that will be required to
electronically submit Form 300A information to OSHA on an annual basis
under the final rule are already required to do so.
Additionally, as noted above, OSHA revised the language of this
requirement slightly for clarity. Specifically, the previous version
referred to establishments with ``20 or more employees but fewer than
250 employees[,]'' while final Sec. 1904.41(a)(1)(i) refers to
establishments with ``20-249 employees[.]'' These clarifying edits do
not change the substantive requirements of the provision.
Similarly, OSHA revised the language of proposed Sec.
1904.41(a)(1) in this final rule for clarity without adding any new
requirements for employers. Specifically, proposed Sec. 1904.41(a)(1)
would have required establishments with 20 or more employees that are
in an industry listed in appendix A of subpart E of part 1904 to
electronically submit information from their Form 300A to OSHA. The
final version of that provision, Sec. 1904.41(a)(1)(i), addresses only
establishments with 20-249 employees, because final Sec.
1904.41(a)(1)(ii) addresses establishments with 250 or more employees.
This change was made to eliminate the overlap, and potential confusion,
that would have resulted if both Sec. 1904.41(a)(1)(i) and Sec.
1904.41(a)(1)(ii) addressed establishments with 250 or more employees.
2. Section 1904.41(a)(1)(ii)--Establishments With 250 or More Employees
That Are Required To Submit Information From OSHA Form 300A
Although OSHA proposed to maintain the same Form 300A submission
requirement for establishments with 20-249 employees, the agency
proposed to remove the electronic submission requirement for certain
establishments with 250 or more employees. Under previous Sec.
1904.41(a)(1), all establishments of this size in industries routinely
required to keep injury and illness records were required to
electronically submit information from their Form 300A to OSHA once a
year. The proposal would have required this submission only from those
establishments with 250 or more employees in industries listed in
appendix A to subpart E. As explained in the preamble to the proposed
rule, OSHA had preliminarily determined that collecting Form 300A data
from a relatively small number of large establishments in lower-hazard
industries was not a priority for OSHA inspection targeting or
compliance assistance activities. OSHA asked for comment on the
proposed changes to Sec. 1904.41(a)(1) generally, and also
specifically asked the question, ``Is it appropriate for OSHA to remove
the requirement for establishments with 250 or more employees, in
industries not included in appendix A, to submit the information from
their OSHA Form 300A?'' (87 FR18546).
There were no comments specifically supporting the proposal to
remove the requirement for establishments with 250 or more employees,
in industries not included in appendix A, to submit the information
from their OSHA Form 300A. In contrast, multiple commenters opposed the
proposal and urged OSHA to retain the existing requirement for
establishments with 250 or more employees that are normally required to
report under part 1904 to submit data from their 300As (e.g., Docket
IDs 0024, 0035, Attachment 2, 0039, 0040, 0045, 0047, 0048, 0049, 0051,
0061, 0066, 0067, 0069, 0079, 0080, 0083, 0089, 0092, 0093). Reasons
for objecting to the proposed removal of the requirement for some large
establishments to submit data from their Form 300As included: OSHA
offered no compelling reason for removal; the need for continued
oversight over large establishments in lower-hazard industries in
general and certain industries in particular; the ability to use the
data to protect the large number of employees employed in these
establishments; and the value of the public information to employee
safety and health efforts.
Some commenters argued that OSHA had not made a persuasive case for
removing the requirement for large establishments in industries not
listed on appendix A to submit their 300A data. For example, Hunter
Cisiewski commented, ``The proposed rule ultimately fails to present a
compelling argument for why `lower hazard' industries should no longer
be required to electronically submit Form 300A when they must still
keep record of the form, present it to employees on request, and post
it publicly in the workplace'' (Docket ID 0024). The AFL-CIO argued,
``There is no reason that these establishments should be excluded from
a standard they are already subject to and have been complying with.
OSHA should at minimum, maintain the requirements for large
establishments in these sectors that are already in place'' (Docket ID
0061; see also Docket ID 0079). Similarly, Public Citizen and the
United Food and Commercial Workers International Union (UFCW) noted
that there would be no significant burden on employers to maintaining
the requirement because these employers are already required to keep
Form 300A data and they have systems in place for submitting the data
to OSHA electronically (Docket IDs 0093, 0066). The United Steelworkers
Union (USW) argued that keeping industries covered helps increase the
stability of the system. USW urged OSHA to ``focus on expanding, not
limiting, those covered by disclosure requirements, and to ensure that
all employers currently covered by the reporting requirements remain
covered'' (Docket ID 0067; see also Docket ID 0080). The UFCW stated
that ``[A]ll available evidence reflects that OSHA's current
requirements provide easy access to important data that is crucial to
reducing and preventing workplace injuries and illnesses'' (Docket ID
0066).
Other commenters, such as the National Institute for Occupational
Safety and Health (NIOSH) and the International Brotherhood of
Teamsters, noted that although the industries that are not listed in
appendix A may have
[[Page 47262]]
relatively low injury rates overall, ``injury rates can vary greatly
across employers and establishments within industries. The requirement
for large establishments to submit a 300A Log annually would be a
reasonable way to identify establishments that have high injury rates
for their industry, and to identify subsegments of industries that may
have more hazardous work processes and activities'' (Docket ID 0035,
Attachment 2; see also Docket ID 0083). Similarly, the Seventeen
Attorneys General from New Jersey, California, Connecticut, Delaware,
the District of Columbia, Hawaii, Illinois, Maryland, Massachusetts,
Michigan, Minnesota, Nevada, New Mexico, New York, Oregon, Rhode
Island, and Vermont (Seventeen AGs) noted their states' concern that
removing the 300A submission requirement for ``lower-hazard''
industries would leave Federal OSHA and State occupational safety and
health agencies with little way of determining whether these industries
were becoming more dangerous for workers over time. This, in turn,
could affect the States' outreach and enforcement efforts. ``For
example, if [s]tates had previously conducted enforcement and outreach
in `low hazard' industries, thus keeping risks down, but deprioritize
such enforcement based on a lack of reporting, any uptick of illnesses
and injuries in those industries, requiring enforcement efforts, may
initially go unnoticed by the [s]tates'' (Docket ID 0045).
Other commenters emphasized the significant number of workers
employed by the large establishments that OSHA had proposed to exclude
from submitting their 300A data, and the usefulness of the data in
providing them with safe work environments. Hunter Cisiewski estimated
that at least 666,250 workers are employed by the approximately 2,665
establishments with 250 or more employees that were proposed to be
removed from the Form 300A submission requirement (assuming that each
establishment employs only 250 workers). The same commenter also noted
that the workers in these large establishments already rely on the
required reporting of their injuries to OSHA ``to ensure compliance
with workplace regulations'' (Docket ID 0024). Similarly, the Council
of State and Territorial Epidemiologists (CSTE) noted that even if the
industries proposed for exclusion have lower injury and illness rates
than the industries on appendix A, they employ a large number of
people. ``Numbers [of workers] as well as rates of work-related
injuries or illness need to be considered in setting prevention
priorities. These establishments need to provide a safe work
environment, and electronic collection of summary data will allow OSHA
and public health agencies to monitor their ability to do so'' (Docket
ID 0040). The International Brotherhood of Teamsters commented, ``we
think continuing to collect OSHA 300A data for the large numbers of
workers employed in these establishments, would help to identify less
obvious problems and implement corresponding preventive measures''
(Docket ID 0083).
Various commenters pointed to known or potentially hazardous
industry segments that would have been exempt from submitting 300A data
under the proposal. For example, the National Council for Occupational
Safety and Health (National COSH) as well as the Centro de los Derechos
del Migrantes pointed to the temporary service industry and the home
health care industry as industries with known hazards for which OSHA
and the public should have access to injury and illness data (Docket
IDs 0048, 0089; see also Docket ID 0049). The AFL-CIO pointed to home
health services, an industry heavily affected by COVID-19, employment
services, which includes vulnerable temporary workers, and some
wholesalers with rates of cases with days away from work, restricted
work activity, or job transfer (DART) above 2.0 per 10,000 workers in
2020 (e.g., NAICS 4231, 4233, 4235, 423930, 4244, 4248, 4249) as
industries containing large establishments that would be newly exempted
from the 300A submission requirements The AFL-CIO argued that
``limiting the data these industries provide the agency would severely
limit the ability to track and identify emerging workplace hazards''
(Docket ID 0061).
Some commenters argued that maintaining the existing 300A reporting
requirement for all large establishments is particularly important
because the industries on appendix A reflect injury and illness data
from the BLS SOII that is not current. Therefore, exempting industries
not on appendix A could result in missing information from industries
that may have become more dangerous since publication of the SOII data
for 2011 to 2013. The United Steelworkers Union (USW) commented, ``By
tying the proposed rule to outdated and underreported injury and
illness data, many employers with 250 or more employees in potentially
high-hazard industries would be exempted, limiting workers' ability to
make informed decisions about a workplace's safety and health. . . .
These industries are currently covered by reporting requirements and
many, like home health, have seen a rise in injuries and illnesses
since the COVID-19 pandemic began'' (Docket ID 0067). Public Citizen
echoed this comment, stating that past injury rates, which are used to
designate industries required to submit data, may not reflect more
recent safety conditions. Public Citizen noted, in addition, that the
pandemic served as a reminder ``that even seemingly `low-hazard'
workplaces can be the epicenter of deadly outbreaks'' (Docket ID 0093).
Finally, a number of commenters underscored the value of the 300A
data that is being collected from large establishments. The UFCW urged
OSHA to retain the requirement for collection from all large
establishments because it would allow many types of users (the public,
employers, workers, researchers, and the government) to use the data
``in the very positive ways that the UFCW has used it'' already. The
UFCW described, in its comment, the many specific ways in which UFCW
has used published and union-collected illness and injury data from the
OSHA Form 300A, among other information, to increase safety and health
at large union-represented facilities (Docket ID 0066). Public Citizen
commented that ``the value of continuing to collect the information
from these employers outweighs any supposed burden . . . data collected
from electronic submission of injury and illness information can help
identify broad patterns from small injury and illness numbers per
establishment. Having this additional data from Form 300A summaries
would assist with research into specific types of injuries and
illnesses'' (Docket ID 0093).
In addition to supporting maintenance of the requirement for
submission of 300A data by large establishments, several commenters
supported expanding the submission requirements for large
establishments even further. For example, the National Employment Law
Project (NELP) supported requiring all employers with 250 or more
employees to submit information from the Form 300 Log in addition to
the Form 300A. NELP argued that certain industries, such as home health
care and employment services, contain very large employers that have
Total Case Rates (TCRs) that are well above the private sector average.
NELP therefore urged OSHA to retain as well as expand electronic
submission requirements for large establishments with 250 or more
employees in industries that are required to keep records under part
1904 so that researchers and other
[[Page 47263]]
organizations could more effectively track and monitor occupational
health and safety trends in home health care, employment services, and
other sectors (Docket ID 0049; see also Docket ID 0089).
The Laborers' Health and Safety Fund of North America argued that
OSHA should require all establishments with 250 or more employees to
submit the Form 300 and Form 301, in addition to the Form 300A:
``Establishments with 250 or more employees account for large
contractors that work on larger construction sites that can be
considered high-risk. For these reasons, establishments should be
required to submit electronic OSHA 300, 300A and 301 forms to not only
track injury and illness, but prove to OSHA that they are taking the
steps to mitigate and prevent them from happening'' (Docket ID 0080).
Having reviewed the information in the record on this issue, OSHA
has decided not to make the proposed change of restricting the universe
of large establishments that are required to submit data from Form
300A. Instead, the agency will maintain the requirement for all
establishments with 250 or more employees that are covered by part 1904
to submit the information from their OSHA Form 300A to OSHA, or its
designee, once a year. As explained by commenters, these establishments
are already submitting this information, so there is no new burden for
employers. Furthermore, access to the information provides multiple
benefits for workers, Federal and State occupational safety and health
agencies, and other interested parties. For example, continuing to
collect and make this data available to the public will allow tracking
of industry hazards over time, even for industries that are not on
appendix A. Commenters noted that this type of tracking was
particularly critical for industry segments and establishments that
have injury rates higher than the rate for their 4-digit NAICS industry
overall. They also noted that requiring information to be submitted
from all large establishments will help blunt the effect of using SOII
data that is several years old in determining which NAICS will be
included on appendix A. OSHA agrees with these rationales.
Although OSHA stated in the proposal that collecting Form 300A data
from this relatively small number of large establishments in lower-
hazard industries is not a priority for OSHA inspection targeting or
compliance assistance, OSHA is persuaded by commenters who see the
value in providing such data to the public; this includes the UFCW,
which has been using this data to make positive safety and health
changes in large establishments. In addition, OSHA recognizes the large
number of workers represented by the relatively small number of
establishments that would have been affected by the proposed change and
does not wish to remove resources that could be used to improve their
safety and health.
OSHA acknowledges the comments supporting expansion of the final
requirement by requiring submission of information from Forms 300 and
301 by all large establishments (250 or more employees) required to
keep records under part 1904. However, this change would expand the
universe of large establishments required to submit Form 300 and Form
301 data from about 22,000 (establishments with at least 250 employees
that are in NAICS listed on appendix B) to about 40,000 (establishments
with at least 250 employees that are required to keep records under
part 1904), an increase of 80 percent (data are as of 2019; see https://www.census.gov/programs-surveys/cbp/data/datasets.html). OSHA does not
believe, at this time, that the benefits from the additional data
collection would outweigh the disadvantages of the additional time and
resources that employers would have to expend to comply. OSHA also
values the stability provided to employers by keeping the universe of
establishments required to submit 300A data the same, in light of the
multiple recent changes to OSHA's data submission requirements.
In the previous regulation, this requirement was at Sec.
1904.41(a)(1). In the final rule, it is at Sec. 1904.41(a)(1)(ii).
This final rule will not impose any new requirements on establishments
to electronically submit information from their Form 300A to OSHA. All
establishments that will be required to electronically submit Form 300A
information to OSHA on an annual basis under the final rule were
already required to do so under the previous regulation. OSHA made only
one non-substantive change in the final regulatory text; whereas the
previous regulatory text at Sec. 1904.41(a)(1) contained an example
stating that data for calendar year 2018 would be submitted by the
month and day listed in Sec. 1904.41(c) of calendar year 2019, that
example has been removed from the final regulatory provision at Sec.
1904.41(a)(1)(ii). A similar, updated example is included in final
Sec. 1904.41(b)(1).
3. Restructuring of Previous Section 1904.41(a)(1) and (2) Into Final
Section 1904.41(a)(1)(i) and (ii)
In the preamble to the proposed rule, OSHA asked the following
question about the structure of the regulatory text containing the
requirements to submit data from OSHA injury and illness recordkeeping
forms: ``The proposed regulatory text is structured as follows: Sec.
1904.41(a)(1) Annual electronic submission of information from OSHA
Form 300A Summary of Work-Related Injuries and Illnesses by
establishments with 20 or more employees in designated industries;
Sec. 1904.41(a)(2) Annual electronic submission of information from
OSHA Form 300 Log of Work-Related Injuries and Illnesses, OSHA Form 301
Injury and Illness Incident Report, and OSHA Form 300A Summary of Work-
Related Injuries and Illnesses by establishments with 100 or more
employees in designated industries. This is the structure used by the
2016 and 2019 rulemakings. An alternative structure would be as
follows: Sec. 1904.41(a)(1) Annual electronic submission of
information from OSHA Form 300A Summary of Work-Related Injuries and
Illnesses by establishments with 20 or more employees in designated
industries; Sec. 1904.41(a)(2) Annual electronic submission of
information from OSHA Form 300 Log of Work-Related Injuries and
Illnesses and OSHA Form 301 Injury and Illness Incident Report by
establishments with 100 or more employees in designated industries.
Which structure would result in better understanding of the
requirements by employers?'' (87 FR 18547).
OSHA did not receive many comments on this proposed alternative
structure for the regulatory text. However, NIOSH noted that it
preferred the second option. ``NIOSH finds the second alternative . . .
to be somewhat preferable. That alternative focuses first on which
establishments are required to submit OSHA Form 300A, and then focuses
on which establishments are required to submit OSHA Forms 300 and 301.
This structure may help employers to more directly answer their
questions about what forms to submit'' (Docket ID 0035, Attachment 2).
OSHA agrees that the proposed alternative structure, which
separates the provisions by recordkeeping form, may help employers
better understand the regulatory requirements for their establishments.
Based on this reasoning, as well as on OSHA's decision to retain the
requirement for all establishments with 250 or more employees in
industries covered by part 1904 to
[[Page 47264]]
submit information from their Form 300A annual summary (discussed
above), OSHA has decided to restructure the final regulation by
recordkeeping form, rather than establishment size and industry.
Therefore, in the final rule, Sec. 1904.41(a)(1) covers the
requirement to submit the OSHA Form 300A, with Sec. 1904.41(a)(1)(i)
for establishments with 20-249 employees in appendix A industries, and
Sec. 1904.41(a)(1)(ii) for establishments with 250 or more employees
in industries covered by part 1904. Final Sec. 1904.41(a)(2) covers
the requirement to submit the OSHA Forms 300 and 301, as discussed
below.
4. Updating Appendix A
Additionally, OSHA proposed to revise appendix A to subpart E to
update the list of designated industries to conform with the 2017
version of the North American Industry Classification System (NAICS).
Since OSHA revised Sec. 1904.41 in 2016, the Office of Management and
Budget has issued two updates to the NAICS codes, in 2017 and 2022. As
explained in the preamble to the proposed rule, OSHA believed that the
proposed update from 2012 NAICS to 2017 NAICS would have the benefits
of using more current NAICS codes, ensuring that both proposed appendix
A and proposed appendix B used the same version of NAICS, aligning with
the version currently used by BLS for the SOII data that OSHA used for
this rulemaking, and increasing the likelihood that employers were
familiar with the industry codes.
As OSHA explained, this revision would not affect which industries
were required to provide their data, but rather simply reflect the
updated 2017 NAICS codes. For appendix A, OSHA limited the scope of
this rulemaking to the proposed update from the 2012 version of NAICS
to the 2017 version of NAICS. The change from the 2012 NAICS to the
2017 NAICS would affect only a few industry groups at the 4-digit NAICS
level. Specifically, the 2012 NAICS industry group 4521 (Department
Stores) is split between the 2017 NAICS industry groups 4522
(Department Stores) and 4523 (General Merchandise Stores, including
Warehouse Clubs and Supercenters). Also, the 2012 NAICS industry group
4529 (Other General Merchandise Stores) is included in 2017 NAICS
industry group 4523 (General Merchandise Stores, including Warehouse
Clubs and Supercenters). As noted above, however, the establishments in
these industries were already covered by the previous record submission
requirements, so this would not represent a substantive change in those
requirements.
The Phylmar Regulatory Roundtable (PRR) supported the proposed
update from the 2012 version of NAICS to the 2017 version of NAICS for
appendix A, commenting, ``It is both practical and logical to align
with the most recent codes from an accuracy standpoint'' (Docket ID
0094). The Coalition for Workplace Safety (CWS), on the other hand,
commented that using the 2017 NAICS codes for Appendices A and B when
the 2022 codes have already been released by OMB will lead to confusion
and mistakes, unduly complicating the proposed requirements (Docket ID
0058).
While OSHA did not propose modifications to appendix A other than
the update from 2012 NAICS to 2017 NAICS, OSHA did discuss one
alternative in the proposal that would affect the industries on
appendix A: updating appendix A to reflect the 2017-2019 injury rates
from the SOII. Appendix A is based on the SOII's injury rates from
2011-2013. This alternative would have resulted in the addition of one
industry to appendix A (NAICS 4831 (Deep sea, coastal, and great lakes
water transportation)) and the removal of 13 industries (4421 Furniture
Stores, 4452 Specialty Food Stores, 4853 Taxi and Limousine Service,
4855 Charter Bus Industry, 5152 Cable and Other Subscription
Programming, 5311 Lessors of Real Estate, 5321 Automotive Equipment
Rental and Leasing, 5323 General Rental Centers, 6242 Community Food
and Housing, and Emergency and Other Relief Services, 7132 Gambling
Industries, 7212 RV (Recreational Vehicle) Parks and Recreational
Camps, 7223 Special Food Services, and 8113 Commercial and Industrial
Machinery and Equipment (except Automotive and Electronic) Repair and
Maintenance).
OSHA did not receive many comments in response to this alternative.
The AFL-CIO stated that the use of ``outdated'' SOII data to determine
the industries on appendix A would lead to missing information from
industries that might have become (or might become in the future) more
hazardous since the time period used as the basis for appendix A (2011-
2013). However, this statement was made in the context of the AFL-CIO's
argument that OSHA should not restrict the large establishments
required to submit 300A data to those in industries on appendix A, as
OSHA proposed. Because OSHA is not adopting that approach, and instead
is requiring all large establishments covered by part 1904 to continue
submitting data from Form 300A, OSHA believes this concern will be
minimized under the final regulatory requirements.
Having reviewed the record, OSHA has decided to update appendix A
to subpart E from the 2012 version of NAICS to the 2017 version of
NAICS. As the PRR commented, it is practical and logical to align the
industry list in appendix A with the more recent NAICS codes (see
Docket ID 0094). Indeed, employers are likely more familiar with the
2017 codes than the 2012 codes. This change would also ensure that
appendices A and B use the same version of NAICS. Finally, the 2017
NAICS codes are used by BLS for the SOII data that OSHA is using for
this rulemaking. While CWS stated that using the 2017 codes when the
2022 codes have already been released will cause confusion (Docket ID
0058), OSHA notes that both appendices are based on SOII data from BLS,
and that no SOII data using the 2022 NAICS codes are currently
available. SOII data for 2022 will not be available until November
2023. Thus, it is not possible for OSHA to base appendix A or B on SOII
data that use the 2022 NAICS codes, even though the 2022 codes are the
most recent ones available.
OSHA has also decided not to update appendix A using more recent
SOII data. As discussed in the preamble to the proposed rule, it took
several years for the regulated community to understand which
industries were and were not required to submit information, and such
misunderstandings could result in both underreporting and
overreporting. OSHA has determined that changing the covered
industries, by changing the data that forms the basis for the NAICS on
appendix A, would result in additional confusion for the regulated
community that is not warranted at this time. Moreover, three of the
industries that would be removed from appendix A if OSHA based that
appendix on updated data are also listed in appendix B, indicating that
they remain hazardous under other measures. Finally, as noted above,
OSHA agrees with interested parties who commented that requiring
information to be submitted from all large establishments will help
blunt the effect of using the older SOII data in determining which
NAICS will be included on appendix A.
The final appendix A to subpart E of part 1904 (Designated
industries for Sec. 1904.41(a)(1)(i) Annual electronic submission of
information from OSHA Form 300A Summary of Work-Related Injuries and
Illnesses by establishments
[[Page 47265]]
with 20-249 employees in designated industries) is as follows: \3\
---------------------------------------------------------------------------
\3\ As noted in the NPRM, OSHA proposed to remove NAICS 7213,
Rooming and Boarding Houses, from appendix A (see 87 FR 18536, n.7).
Employers in NAICS 7213 are not required to routinely keep OSHA
injury and illness records, per the part 1904 non-mandatory appendix
A to subpart B. This NAICS industry group was mistakenly included in
appendix A to subpart E when OSHA published its 2016 final rule (see
81 FR 29642). OSHA received no comments objecting to the removal of
NAICS 7213 from appendix A to subpart E and thus has excluded this
industry group from the final version of this appendix.
------------------------------------------------------------------------
NAICS Industry
------------------------------------------------------------------------
11......................... Agriculture, Forestry, Fishing and Hunting.
22......................... Utilities.
23......................... Construction.
31-33...................... Manufacturing.
42......................... Wholesale Trade.
4413....................... Automotive Parts, Accessories, and Tire
Stores.
4421....................... Furniture Stores.
4422....................... Home Furnishings Stores.
4441....................... Building Material and Supplies Dealers.
4442....................... Lawn and Garden Equipment and Supplies
Stores.
4451....................... Grocery Stores.
4452....................... Specialty Food Stores.
4522....................... Department Stores.
4523....................... General Merchandise Stores, including
Warehouse Clubs and Supercenters.
4533....................... Used Merchandise Stores.
4542....................... Vending Machine Operators.
4543....................... Direct Selling Establishments.
4811....................... Scheduled Air Transportation.
4841....................... General Freight Trucking.
4842....................... Specialized Freight Trucking.
4851....................... Urban Transit Systems.
4852....................... Interurban and Rural Bus Transportation.
4853....................... Taxi and Limousine Service.
4854....................... School and Employee Bus Transportation.
4855....................... Charter Bus Industry.
4859....................... Other Transit and Ground Passenger
Transportation.
4871....................... Scenic and Sightseeing Transportation,
Land.
4881....................... Support Activities for Air Transportation.
4882....................... Support Activities for Rail Transportation.
4883....................... Support Activities for Water
Transportation.
4884....................... Support Activities for Road Transportation.
4889....................... Other Support Activities for
Transportation.
4911....................... Postal Service.
4921....................... Couriers and Express Delivery Services.
4922....................... Local Messengers and Local Delivery.
4931....................... Warehousing and Storage.
5152....................... Cable and Other Subscription Programming.
5311....................... Lessors of Real Estate.
5321....................... Automotive Equipment Rental and Leasing.
5322....................... Consumer Goods Rental.
5323....................... General Rental Centers.
5617....................... Services to Buildings and Dwellings.
5621....................... Waste Collection.
5622....................... Waste Treatment and Disposal.
5629....................... Remediation and Other Waste Management
Services.
6219....................... Other Ambulatory Health Care Services.
6221....................... General Medical and Surgical Hospitals.
6222....................... Psychiatric and Substance Abuse Hospitals.
6223....................... Specialty (except Psychiatric and Substance
Abuse) Hospitals.
6231....................... Nursing Care Facilities (Skilled Nursing
Facilities).
6232....................... Residential Intellectual and Developmental
Disability, Mental Health, and Substance
Abuse Facilities.
6233....................... Continuing Care Retirement Communities and
Assisted Living Facilities for the
Elderly.
6239....................... Other Residential Care Facilities.
6242....................... Community Food and Housing, and Emergency
and Other Relief Services.
6243....................... Vocational Rehabilitation Services.
7111....................... Performing Arts Companies.
7112....................... Spectator Sports.
7121....................... Museums, Historical Sites, and Similar
Institutions.
7131....................... Amusement Parks and Arcades.
7132....................... Gambling Industries.
7211....................... Traveler Accommodation.
7212....................... RV (Recreational Vehicle) Parks and
Recreational Camps.
7223....................... Special Food Services.
8113....................... Commercial and Industrial Machinery and
Equipment (except Automotive and
Electronic) Repair and Maintenance.
8123....................... Drycleaning and Laundry Services.
------------------------------------------------------------------------
[[Page 47266]]
B. Section 1904.41(a)(2)--Annual Electronic Submission of OSHA Form 300
Log of Work-Related Injuries and Illnesses and OSHA Form 301 Injury and
Illness Incident Report by Establishments With 100 or More Employees in
Designated Industries
Section 1904.41(a)(2) of the final rule requires establishments
that (1) had 100 or more employees at any point during the previous
calendar year and (2) are classified in one of the industries listed in
appendix B to subpart E of part 1904 to electronically submit certain
information from their Forms 300 and 301 to OSHA or OSHA's designee.
Data from the 300 and 301 forms must be submitted annually, for the
previous calendar year, by March 2 (Sec. 1904.41(c)). The only change
from the proposed rule is the deletion of the proposed rule's reference
to Form 300A. That reference has been deleted from this provision
because the requirements for establishments to submit Form 300A are
contained in Sec. 1904.41(a)(1)(i) and (ii) in this final rule.
Comments related to the submission of Form 300A are discussed in that
section. Appendix B has also changed from the proposal. Specifically,
OSHA has added six industries to appendix B. All six of the industries
added to appendix B have been part of appendix A since appendix A's
creation in 2016.
As discussed in Section I.C, Regulatory History, in 2016, OSHA
issued a final rule that required establishments with 250 or more
employees that are routinely required to keep injury and illness
records under part 1904 to electronically submit information from their
300 and 301 forms to OSHA once a year. However, OSHA never collected
that Form 300 and 301 data, and in 2019, it issued a final rule that
removed the requirement for these establishments to electronically
submit that information to OSHA.
As noted above, in this rulemaking, OSHA re-proposed a requirement
for certain establishments to submit information from their 300 and 301
forms to OSHA annually. The proposed provision in this rulemaking
differed from the 2016 final rule in that the proposed provision would
apply to establishments that (1) had 100 or more employees (rather than
250 or more employees, as in the 2016 final rule) and (2) are
classified in an industry listed in appendix B to subpart E of part
1904 (rather than all industries which are required by part 1904 to
keep records, as in the 2016 rule). OSHA received a wide range of
comments on the proposed provision. The issues related to these
comments are addressed below.
1. Covered Establishments and Industries
Like the proposed rule, Sec. 1904.41(a)(2) of the final rule
requires establishments that had 100 or more employees at any time
during the previous calendar year, and that are in an industry listed
in final appendix B to subpart E, to electronically submit certain
information from their Form 300 and 301 to OSHA or OSHA's designee once
a year. As discussed in more detail below, under final paragraph
1904.41(c), employers subject to the reporting requirement in Sec.
1904.41(a)(2) must submit all of the required information to OSHA or
OSHA's designee by March 2 of the year after the calendar year covered
by the forms.
As discussed above, in 2016, OSHA issued a final rule that required
all establishments with 250 or more employees in all industries
routinely required to keep part 1904 injury and illness records to
electronically submit information from their 300 and 301 forms to OSHA
once a year. In that rulemaking, OSHA estimated that establishments
with 250 or more employees covered by the submission requirement would
report 713,397 injury and illness cases each year. However, the 300 and
301 data submission requirements from the 2016 final rule were never
fully implemented, and OSHA never collected 300 and 301 data
electronically from covered employers. In 2019, OSHA issued a final
rule that removed the requirement for the annual electronic submission
of 300 and 301 data to OSHA.
In the NPRM in this rulemaking, OSHA explained that in developing
the requirement for establishments with 100 or more employees to
electronically submit data from their OSHA Form 300 and 301, OSHA
sought to balance the utility of the information collection for
enforcement, outreach, and research, on the one hand, and the burden on
employers to provide the information to OSHA, on the other hand (see 87
FR 18543). To achieve this balance in the proposed rule, OSHA analyzed
five years of injury and illness Form 300A summary data collected
through OSHA's ITA. OSHA examined combinations of establishment size
and industry hazardousness that, like the 2016 final rule, would
provide the agency with information on roughly 750,000 cases of
injuries and illnesses per year--roughly the same burden as the case-
specific requirement in the 2016 final rule. Based on this analysis,
OSHA proposed a reporting requirement for establishments with 100 or
more employees in 4-digit NAICS (2017) industries that:
1. had a 3-year-average Total Case Rate (TCR) in the BLS SOII for
2017, 2018, and 2019, of at least 3.5 cases per 100 full-time-
equivalent employees, and
2. were included in proposed appendix A to subpart E. (All of the
industries in proposed appendix B were also in appendix A).
The proposed rule listed the designated industries in proposed
appendix B to subpart E.
OSHA proposed one exception to the above criteria, for the United
States Postal Service (USPS), which is the only employer in NAICS 4911
Postal Services. Under the Postal Employees Safety Enhancement Act
(Pub. L. 105-241), OSHA treats USPS as a private sector employer for
purposes of occupational safety and health, and USPS establishments
with 20 or more employees have been required to electronically submit
300A information to OSHA. However, BLS does not include USPS in the
SOII. Using the 2017, 2018, and 2019 data submitted by USPS to the ITA,
OSHA was able to calculate a TCR of 7.5 for NAICS 4911. Therefore, OSHA
included NAICS 4911 in proposed appendix B to subpart E.
Also, in the preamble to the proposed rule, OSHA explained that the
agency believed TCR, which represents the number of work-related
injuries and illnesses per 100 full-time-employees during a one-year
period, was the appropriate rate to use for determining the list of
industries in proposed appendix B to subpart E because covered
establishments would be required to electronically submit information
to OSHA on all of their recordable cases, not just cases that resulted
in days away from work, job restriction, or transfer. OSHA explained in
the preamble that, in 2020, OSHA received submissions to the ITA of
Form 300A data for 2019 from 46,911 establishments that had 100 or more
employees and were in one of the industries listed in proposed appendix
B to subpart E, accounting for 680,930 total recordable cases and a TCR
of 3.6.
The designated industries in proposed appendix B to subpart E were
as follows:
[[Page 47267]]
Proposed Appendix B
------------------------------------------------------------------------
2017 NAICS code 2017 NAICS title
------------------------------------------------------------------------
1111........................ Oilseed and grain farming.
1112........................ Vegetable and melon farming.
1113........................ Fruit and tree nut farming.
1114........................ Greenhouse, nursery, and floriculture
production.
1119........................ Other crop farming.
1121........................ Cattle ranching and farming.
1122........................ Hog and pig farming.
1123........................ Poultry and egg production.
1129........................ Other animal production.
1141........................ Fishing.
1151........................ Support activities for crop production.
1152........................ Support activities for animal production.
1153........................ Support activities for forestry.
2213........................ Water, sewage and other systems.
2381........................ Foundation, structure, and building
exterior contractors.
3111........................ Animal food manufacturing.
3113........................ Sugar and confectionery product
manufacturing.
3114........................ Fruit and vegetable preserving and
specialty food manufacturing.
3115........................ Dairy product manufacturing.
3116........................ Animal slaughtering and processing.
3117........................ Seafood product preparation and packaging.
3118........................ Bakeries and tortilla manufacturing.
3119........................ Other food manufacturing.
3121........................ Beverage manufacturing.
3161........................ Leather and hide tanning and finishing.
3162........................ Footwear manufacturing.
3211........................ Sawmills and wood preservation.
3212........................ Veneer, plywood, and engineered wood
product manufacturing.
3219........................ Other wood product manufacturing.
3261........................ Plastics product manufacturing.
3262........................ Rubber product manufacturing.
3271........................ Clay product and refractory manufacturing.
3272........................ Glass and glass product manufacturing.
3273........................ Cement and concrete product manufacturing.
3279........................ Other nonmetallic mineral product
manufacturing.
3312........................ Steel product manufacturing from purchased
steel.
3314........................ Nonferrous metal production and
processing.
3315........................ Foundries.
3321........................ Forging and stamping.
3323........................ Architectural and structural metals
manufacturing.
3324........................ Boiler, tank, and shipping container
manufacturing.
3325........................ Hardware manufacturing.
3326........................ Spring and wire product manufacturing.
3327........................ Machine shops; turned product; and screw,
nut, and bolt manufacturing.
3328........................ Coating, engraving, heat treating, and
allied activities.
3331........................ Agriculture, construction, and mining
machinery manufacturing.
3335........................ Metalworking machinery manufacturing.
3361........................ Motor vehicle manufacturing.
3362........................ Motor vehicle body and trailer
manufacturing.
3363........................ Motor vehicle parts manufacturing.
3366........................ Ship and boat building.
3371........................ Household and institutional furniture and
kitchen cabinet manufacturing.
3372........................ Office furniture manufacturing.
4231........................ Motor vehicle and motor vehicle parts and
supplies merchant wholesalers.
4233........................ Lumber and other construction materials
merchant wholesalers.
4235........................ Metal and mineral merchant wholesalers.
4244........................ Grocery and related product merchant
wholesalers.
4248........................ Beer, wine, and distilled alcoholic
beverage merchant wholesalers.
4413........................ Automotive parts, accessories, and tire
stores.
4422........................ Home furnishings stores.
4441........................ Building material and supplies dealers.
4442........................ Lawn and garden equipment and supplies
stores.
4451........................ Grocery stores.
4522........................ Department stores.
4523........................ General merchandise stores, including
warehouse clubs and supercenters.
4533........................ Used merchandise stores.
4543........................ Direct selling establishments.
4811........................ Scheduled air transportation.
4841........................ General freight trucking.
4842........................ Specialized freight trucking.
4851........................ Urban transit systems.
4852........................ Interurban and rural bus transportation.
[[Page 47268]]
4854........................ School and employee bus transportation.
4859........................ Other transit and ground passenger
transportation.
4871........................ Scenic and sightseeing transportation,
land.
4881........................ Support activities for air transportation.
4883........................ Support activities for water
transportation.
4911........................ Postal Service.
4921........................ Couriers and express delivery services.
4931........................ Warehousing and storage.
5322........................ Consumer goods rental.
5621........................ Waste collection.
5622........................ Waste treatment and disposal.
6219........................ Other ambulatory health care services.
6221........................ General medical and surgical hospitals.
6222........................ Psychiatric and substance abuse hospitals.
6223........................ Specialty hospitals.
6231........................ Nursing care facilities.
6232........................ Residential intellectual and developmental
disability, mental health, and substance
abuse facilities.
6233........................ Continuing care retirement communities and
assisted living facilities for the
elderly.
6239........................ Other residential care facilities.
6243........................ Vocational rehabilitation services.
7111........................ Performing arts companies.
7112........................ Spectator sports.
7131........................ Amusement parks and arcades.
7211........................ Traveler accommodation.
7212........................ RV parks and recreational camps.
7223........................ Special food services.
6239........................ Other residential care facilities.
6243........................ Vocational rehabilitation services
7111........................ Performing arts companies.
7112........................ Spectator sports.
7131........................ Amusement parks and arcades.
7211........................ Traveler accommodation.
7212........................ RV parks and recreational camps.
7223........................ Special food services.
------------------------------------------------------------------------
a. The Size Threshold for Submitting Information From OSHA Forms 300
and 301
Like the proposed rule, Sec. 1904.41(a)(2) of the final rule
requires establishments in industries listed in appendix B to subpart E
with 100 or more employees to electronically submit certain information
from their 300 and 301 forms to OSHA once a year. The size criterion of
100 or more employees is based on the total number of employees at an
establishment during the previous calendar year. All individuals who
are ``employees'' under the OSH Act are counted in the total. The count
includes all full-time, part-time, temporary, and seasonal employees.
For businesses that are sole proprietorships or partnerships, the
owners and partners would not be considered employees and would not be
counted. Other examples of individuals who are not considered to be
employees under the OSH Act are unpaid volunteers and family members of
farm employers (see 66 FR 5916, 6038).
In the preamble to the proposed rule, OSHA specifically requested
comment on whether the threshold of 100 or more employees was the
appropriate size criterion for the requirement to electronically submit
data from the OSHA Form 300, 301, and 300A. OSHA also asked whether a
different size criterion would be more appropriate (see 87 FR 18546).
OSHA received a number of comments on the 100-or-more-employee
criterion as to the submission of OSHA Forms 300 and 301. Some
commenters supported the 100-or-more threshold (e.g., Docket IDs 0040,
0048, 0049, 0051, 0054, 0064, 0067, 0073, 0080, 0083, 0089, 0092,
0093). For example, the Council of State and Territorial
Epidemiologists stated that setting the threshold at 100 employees will
allow OSHA to receive more detailed information from the 300/301 forms
on the nature and circumstances of injuries and illnesses (Docket ID
0040). Also, the International Union of Painters and Allied Trades/AFL-
CIO commented that while they would have preferred to see the threshold
for large establishments dropped even further, they recognized that the
reduction from 250 to 100 from the 2016 final rule is significant and
will assist their industry and others in capturing additional data
(Docket ID 0073).
The National Nurses Union commented, ``An OSHA rule requiring
reporting from establishments with 100 or more employees is a superior
threshold to the 250-employee threshold. As an example, if the
establishment threshold was 250 employees, 299 hospitals in California
would have had to comply with electronic reporting requirements in
2021, covering over 378,000 hospital employees. Applying a reporting
rule to establishments with 100 or more employees would add an
additional 73 hospitals and protect nearly 12,017 additional hospital
employees in California alone. This is a significant increase in the
data available on workplace hazards'' (Docket ID 0064). Additionally,
the Communication Workers of America commented, ``We support OSHA's
proposal to be inclusive of more workplaces by changing the definition
of a ``large'' establishment to those with 100 or more employees,
rather than 250 employees. We support large establishments submitting
certain information from all three recordkeeping forms. . . .'' (Docket
ID 0092).
[[Page 47269]]
Other commenters opposed or questioned the 100-or-more employee
threshold (e.g., Docket IDs 0030, 0050, 0071, 0076, 0087, 0094). Of
those commenters who opposed the proposed threshold, most argued that
OSHA should set the threshold higher than 100 employees. For example,
the Employers E-Recordkeeping Coalition (Coalition) commented that, to
the extent employers in industries designated in appendix B are
required to submit information from their OSHA Form 300, 301, and 300A,
such a requirement should apply to employers with 250 or more
employees, not employers with 100 or more employees. The Coalition
asserted that, ``OSHA does not appear to provide any rationale for
lowering the threshold of what it considers to be ``larger employers''
from those with 250 or more'' (Docket ID 0087). Similarly, the National
Propane and Gas Association (NPGA) commented that OSHA does not explain
its rationale for lowering the size threshold to 100 employees (Docket
ID 0050).
OSHA agrees with commenters who supported the proposed 100-or-more-
employee threshold and disagrees with commenters who stated that the
employee threshold should be higher than 100 or more employees (e.g.,
250 or more employees). Increasing the threshold would reduce the
number of establishments required to electronically submit information
from their 300 and 301 forms, as well as decrease the number of injury
and illness case reports collected by the agency. For example,
increasing the size threshold from 100 or more employees to 250 or more
employees would reduce the number of establishments required to
electronically submit 300/301 data by 67 percent (i.e., from 52,092
establishments to 17,106 establishments). Likewise, raising the
threshold from 100 or more employees to 250 or more employees would
reduce the number of reported injury and illness cases by 32 percent
(i.e., from 766,257 cases to 523,562 cases). This reduction in the
amount of collected information would significantly limit OSHA's
ability to identify and target hazardous occupations and workplaces.
Also, a reduction in the amount of collected information would
adversely impact the benefits (discussed elsewhere) of making this
information available to employees, the public, and other interested
parties. OSHA is concerned that an increase in the employee threshold,
along with the corresponding reduction in publicly available injury and
illness information, will hinder efforts to prevent occupational
injuries and illnesses in the future.
Moreover, the question is more complex than merely whether to
``increase'' or ``decrease'' the establishment-size threshold, because
the scope of industries required to submit the Form 300 and 301 data
has also changed between the 2016 rule and this one. Under the 2016
final rule, all establishments that (1) had 250 or more employees at
any time during the previous calendar year, and (2) were required to
keep records pursuant to part 1904 were required to submit Forms 300
and 301. In contrast, in this rulemaking, OSHA proposed requiring
establishments with 100-or-more employees to submit only if they are
classified in one of the high-hazard industries listed in appendix B.
This approach--lowering the establishment-size threshold to capture
enough workplaces and cases to allow appropriate targeting and analysis
while focusing in on particularly hazardous industries--is fully
distinguishable from the agency's approach in 2016. OSHA's approach in
this rulemaking focuses on higher hazard industries and provides the
agency with information on more establishments, as compared to the
number of establishments which would have been required to submit their
Forms 300 and 301 information under the 2016 final rule. The increase
in the number of establishments required to submit information,
relative to the 2016 final rule, will allow OSHA to identify more
places where intervention will be beneficial, including targeting its
compliance assistance efforts.
Other interested parties recommended that OSHA conduct additional
analysis to determine which establishments should be required to
electronically submit Form 300/301 data to OSHA. For example, the
American Industrial Hygiene Association (AIHA) commented, ``There
should be an analysis of the impact of any company size selected to
report electronically. There are at least two considerations here: (1)
The number of responses that will be received if the threshold is
lowered to 100 (there is also a question of whether OSHA can manage an
associated increase in reports); and (2) Most companies in the U.S. are
small businesses and new regulations such as this can have an indirect
impact on them. Will companies of this size have the capability and IT
expertise to participate in electronic reporting? OSHA should conduct a
thorough analysis before imposing new reporting requirements on small
businesses.'' (Docket ID 0030). The Sheet Metal & Air Conditioning
Contractors' National Association submitted similar comments (Docket ID
0046).
OSHA agrees with AIHA that these factors are important in
determining the appropriate threshold for data submission and
considered them in setting the threshold. As to the first consideration
noted by AIHA, the number of responses, as noted above, OSHA estimates
that 52,092 establishments will be required to electronically submit
Form 300/301 data each year pursuant to Sec. 1904.41(a)(2) of the
final rule. OSHA further estimates that those establishments would
annually submit 766,257 injury and illness cases. In choosing the
proposed threshold, OSHA sought to balance the utility of the
information collection for enforcement, outreach, and research, on the
one hand, and the burden on employers to provide the information to
OSHA, on the other hand. And OSHA expects that the 100-employee
threshold will be an easy threshold for employers to understand and
keep track of. Further, as discussed in Section III.B. of this Summary
and Explanation, OSHA has determined that it is capable of managing,
analyzing, and utilizing the data it will receive pursuant to this
requirement.
As to AIHA's second factor, whether establishments with 100 or more
but fewer than 250 employees have the capability and IT expertise to
participate in electronic reporting, OSHA has also determined that such
establishments are capable of submitting these reports to OSHA.
Significantly, because the industries that appear in appendix B are a
subset of those in appendix A and the previous version of Sec.
1904.41(a)(2) required all establishments with 20-249 employees which
are classified in an industry listed in appendix A to submit
information from their Form 300A annually to OSHA, all of the
establishments which would be required to submit information from their
Forms 300 and 301 to OSHA under the proposal were already required to
submit information from their Forms 300A. In other words, the
establishments covered under the proposal (and this final rule) already
have experience submitting (and thus the ability to submit) such data
to OSHA electronically. For more details on this issue, see Section IV,
Final Economic Analysis.
OSHA also received comments questioning its preliminary decision to
use establishment size as a threshold criterion. For example, the
National Safety Council (NSC) supported a risk-based approach,
commenting that larger operations are not inherently less safe and that
OSHA should move to a risk-
[[Page 47270]]
based approach to protect workers. It argued, ``OSHA should evaluate
factors like the degree of the hazard, the magnitude of exposure
(number of workers exposed and duration of exposure), and the relative
risk at the site (likelihood of an incident based on current hazards
and the level of controls being applied to those hazards and past
experience). These data points should govern reporting requirements and
guide OSHA inspections, consulting and compliance resources.'' (Docket
ID 0041).
OSHA agrees that using a risk-based approach to collecting data can
be valuable. Indeed, as discussed in Section III.B.14.c in this Summary
and Explanation, OSHA anticipates this to be one of the benefits of the
data collection for the agency. That is, the data collection will
provide OSHA with establishment-specific, case-specific information the
agency can use to evaluate risk factors and guide OSHA activities based
on risk factors. However, in order to obtain this information, OSHA
must first set the criteria for collecting the information, through
this final rule. Risk is one of the reasons the agency proposed using a
Forms 300 and 301 data collection criteria based on industry hazard
level as well as establishment size, i.e., it is reasonable to assume
that establishments in industries with higher injury/illness rates are
higher-hazard industries with higher risks. As discussed elsewhere in
this preamble, the list of higher-hazard industries in final appendix B
to subpart E is based on several criteria, including the analysis of
average injury and illness rates over several years. OSHA believes this
approach represents a practical way of evaluating risks and hazards in
specific industries. OSHA also believes it would be difficult to
calculate an appropriate employee threshold based on the degree of
hazard or the magnitude of exposure at individual establishments,
especially when such case-specific data are not now available to the
agency. Moreover, OSHA expects that including a numerical threshold of
100 or more employees is easier for employers to understand and
provides certainty for the regulated community. The inclusion of a
numerical threshold with or without an additional industry criterion is
a familiar part of OSHA's recordkeeping regulations (see, e.g., 29 CFR
1904.1(a)(1); previous 29 CFR 1904.41(a)(1)-(2)). Further, OSHA
believes that the 100-employee threshold balances the burden on
employers with the benefits to worker safety and health.
Other commenters questioned OSHA's proposed 100-employee threshold
because the agency did not choose that threshold in the 2016
rulemaking. For example, the Coalition pointed out that ``OSHA
considered a lower threshold of 100 or more employees, and expressly
denied that approach in the 2016 rulemaking'' (Docket ID 0087). In
response to this comment, OSHA notes that the alternative (Alternative
E) in the 2013 NPRM (the NPRM which lead to the 2016 final rule) to
which the Coalition refers differs from the requirement OSHA proposed
in this rulemaking. Specifically, with regard to Forms 300 and 301,
Alternative E would have required all establishments which were
required to keep records and had 100 or more employees at any time
during the previous calendar year to submit Form 300 and 301 data to
OSHA annually (see 78 FR 67264, 67281). However, in this rulemaking,
OSHA proposed for only a subset of establishments with 100 or more
employees (i.e., those whose industries appear on appendix B) to submit
the data. OSHA estimated that it would receive 1,170,000 injury and
illness cases with incident report (OSHA Form 301) and Log (OSHA Form
300) data under Alternative E (81 FR 29636). OSHA further estimated
that 120,000 establishments would have been required to submit data
under the alternative (81 FR 29636). Ultimately, in 2016, OSHA agreed
with commenters who stated that reducing the size criterion to 100
would increase the burden on employers with diminishing benefit.
OSHA's 2016 decision to reject Alternative E was based on the
employer burden and benefits under that alternative. As discussed
above, under this rule, OSHA estimates that only 52,092 establishments
will be required to electronically submit Form 300/301 data each year
and those establishments would annually submit only 766,257 injury and
illness cases. Thus, an estimated 67,908 fewer establishments will be
required to submit data under this rule, as compared to the estimate of
those that would have been required to submit under Alternative E in
the 2016 final rule, and approximately 403,000 fewer cases are
estimated to be submitted than were estimated to have been submitted
under that alternative. The number of cases estimated to be submitted
under this final rule is similar to that which was estimated to have
been required to be submitted under the 2016 final rule (720,000 in
2016). Consequently, OSHA finds that its rejection of Alternative E in
the 2016 rulemaking has no bearing on its decision to use a 100-
employee threshold in this rulemaking. In fact, the agency's finding
that it could handle data from 720,000 cases in 2016 actually supports
its finding that it can handle a similar number of records in this
rulemaking.
The Phylmar Regulatory Roundtable (PRR) objected to OSHA's proposed
100-or-more-employee threshold for a different reason than the above
commenters. Specifically, it maintained that the requirement for
establishments with 100 or more employees in certain industries could
result in inaccurate or misleading information. In support of this
point, it stated that ``an establishment with few employees may have a
high case rate purely based on numbers which is not reflective of
workplace hazards or employer commitment. High injury and illness rates
are not an automatic indication that the company or establishment is
operating an unsafe environment'' (Docket ID 0094).
OSHA disagrees with PRR's assertion about the 100-or-more employee
threshold resulting in misleading information. While a small number of
injuries or illnesses could have a disproportionate effect on incidence
rates in an establishment with a small number of employees, this is
unlikely in larger establishments with 100 or more employees. Incidence
rate of injuries and illnesses are computed from the following formula:
Incidence rate per 100 full-time employees = (Number of injuries and
illnesses x 200,000)/Employee hours worked. The 200,000 figure in the
formula represents the number of hours 100 employees working 40 hours
per week, 50 weeks per year would work, and provides the standard base
for calculating incidence rate for an entire year. Mathematically, the
effect of a small change in the numerator (number of injuries and
illnesses x 200,000) on the incidence rate becomes smaller as the
denominator (employee hours worked) becomes larger, and the more
employees there are, the larger the denominator will tend to be. Two
recordable injuries or illnesses instead of one, at an establishment
with 20 full-time employees, would increase the TCR from 5.0 to 10.0;
in contrast, at an establishment with 100 full-time employees, the TCR
would only increase from 1.0 to 2.0. As discussed above, the TCR
threshold for industry inclusion in Appendix B is 3.5; an establishment
with 100 full-time employees would have to have at least 4 recordable
injuries in a year to exceed this threshold. In addition, as discussed
[[Page 47271]]
elsewhere, OSHA plans to publish narrative information from the Form
300 and 301 (after identifying and removing information that could
reasonably be expected to identify individuals directly), which will
enable the users of the data to determine the relevance of the data. In
fact, OSHA believes that the inclusion of more information about the
specific cases (rather than the summary information from Forms 300A)
will mitigate against potential misunderstandings, because the public
can use that information to determine the circumstances that led to the
injury or illness (e.g., through showing that a particular injury or
illness occurred for a reason other than a hazard in the work
environment). This is further discussed below in Section III.B.4 of
this Summary and Explanation, which also explains additional steps OSHA
plans to take to provide information to the public to aid their
understanding of the data.
OSHA also received a comment from NPGA opposing the proposed 100-
or-more employee threshold because it is not included in any other
portion of OSHA's recordkeeping regulations (Docket ID 0050). NPGA's
statement is accurate: OSHA's proposal in this rulemaking is the first
time OSHA has specifically tied a part 1904 recordkeeping requirement
to a 100-or-more-employee threshold. However, OSHA does not think the
presence of a new threshold is problematic. As stated above, a 100-
employee threshold is easy for establishments to understand and
balances OSHA's need for the data with the burden on establishments.
Moreover, OSHA expects that establishments are familiar with this
threshold from their experience with other Federal standards. For
example, private sector employers with 100 or more employees are
required to file an EEO-1 Component 1 Report with the Equal Employment
Opportunity Commission (EEOC) and the Office of Federal Contract
Compliance Programs (OFCCP), U.S. Department of Labor, every year (see
42 U.S.C. 2000e-8(c); 29 CFR 1602.7-.14; 41 CFR 60-1.7(a)).
Other commenters maintained that the 100-employee threshold was not
inclusive enough. For example, the AFL-CIO commented that if OSHA did
not adopt its recommendation to require all establishments with 100 or
more employees to submit data from all their recordkeeping forms
(rather than establishments with 100 or more employees which are also
classified in an industry listed in appendix B) (comment and OSHA's
response discussed below), then OSHA should adopt the provisions
contained in the 2016 final rule (i.e., require all establishments with
250 or more employees to submit data from Forms 300A, 300, and 301). It
argued that ``[a]t a minimum'' OSHA should require establishments with
250 or more employees to submit data from the Forms 300A and 300
(Docket ID 0061). The United Food and Commercial Workers International
Union submitted a similar comment (Docket ID 0066).
OSHA disagrees with commenters who suggested that OSHA should adopt
a threshold below 100 or more employees or eliminate the threshold
completely. OSHA acknowledges commenters who stated that a lower
threshold would result in an increase in the amount of injury and
illness data collected by the agency. However, the agency notes that
any reduction in the employee size threshold would increase the number
of establishments required to electronically submit Form 300 and 301
data, and this would result in an increased burden to smaller
employers. Again, the agency chose the 100-employee threshold by
balancing the utility of the information collection for enforcement,
outreach, and research, on the one hand, and the burden on employers to
provide the information to OSHA, on the other hand. The 100-employee
threshold will provide enough case-specific information, about enough
establishments, for wide-spread targeted outreach and enforcement while
minimizing the burden on employers, especially smaller employers, as
required by Section 8(d) of the OSH Act. In addition, OSHA notes that
the 100-or-more-employee threshold is appropriate since larger
establishments typically have more resources to support electronic
submission of case-specific injury and illness information to OSHA.
OSHA also finds that the 100-or-employee threshold is appropriate
because there is a lesser risk of employee reidentification from
information published regarding larger establishments. (For more
information on this issue, see the discussion of indirect
identification in Section III.B of this Summary and Explanation.)
In summary, after considering the entire record on the issue of the
size threshold for submitting OSHA Form 300 and 301 data, OSHA agrees
with commenters who supported the 100-or-more-employee threshold for
determining which establishments must electronically submit information
from their 300 and 301 forms. The 100-or-more-employee threshold will
allow OSHA to strike an appropriate balance between the total number of
establishments required to submit case-specific data to OSHA and the
total number of injury and illness cases collected, on the one hand,
with burden on employers (especially smaller employers) on the other.
As discussed above, as well as in Section IV, Final Economic Analysis,
OSHA believes that establishments with 100 or more employees have the
necessary personnel and IT resources to comply with the electronic
submission requirement in final Sec. 1904.41(a)(2). By setting the
threshold at 100 or more employees and limiting the covered industries
to the higher hazard industries listed in final appendix B to subpart
E, the agency is focusing its data collection efforts in a more
targeted manner. This approach is consistent with OSHA's stated
intention in the preamble to the proposed rule to balance the utility
of the information collection for enforcement, outreach, and research,
on the one hand, and the burden on employers to provide the information
to OSHA, on the other hand.
Accordingly, like the proposed rule, final Sec. 1904.41(a)(2)
requires establishments with 100 or more employees that are in the
designated industries listed in appendix B to subpart E to
electronically submit data from their 300 and 301 forms to OSHA once a
year.
b. The Criteria for Determining the Industries in Appendix B to Subpart
E
As stated above, OSHA proposed to require establishments with 100
or more employees at any time during the previous calendar year to
annually submit their Form 300 and 301 if they are in an industry
listed in proposed appendix B to subpart E. The criteria for including
the designated industries in proposed appendix B to subpart E was based
on a three-year average rate of Total Case Rate (TCR) in the BLS SOII
for 2017, 2018, and 2019, of at least 3.5 cases per 100 full-time-
employees. In the preamble to the proposed rule, OSHA requested comment
on whether TCR is the appropriate method for determining the list of
industries in proposed appendix B to subpart E. In addition, OSHA
specifically asked, ``Is Total Case Rate (TCR) the most appropriate
incidence rate to use for proposed appendix B to subpart E, or would
the Days Away Restricted or Transferred (DART) rate be more
appropriate?'' (87 FR 18546).
The TCR represents the number of work-related injuries and
illnesses per 100 full-time-employees during a one-year period. It is
based on all work-related injuries and illnesses recorded on the OSHA
300 Log resulting in death, days away from work, work restriction or
transfer to another job, and other
[[Page 47272]]
recorded cases (e.g., cases resulting in medical treatment beyond first
aid). On the other hand, the DART rate is based only on the number of
work-related injuries and illnesses recorded on the OSHA 300 Log
resulting in days away from work, restricted work activity or transfer
to another job.
A number of commenters opined on the appropriate criteria for
determining the industries designated in appendix B to Subpart E. Many
of these commenters supported the proposed use of the TCR (e.g., Docket
IDs 0030, 0040, 0047, 0048, 0054, 0064, 0066, 0084, 0089). For example,
AIHA indicated its support for using the TCR in the final rule, adding
that, ``All incident rate metrics suffer from inaccuracy due to a lack
of understanding of complex and intricately nuanced recording rules.
The TCR is the most widely used and least misunderstood of these
measures in the United States'' (Docket ID 0030). Also, the National
Nurses Union stated that TCR is a more appropriate metric than a DART-
rate-only metric because it includes all types of recorded injuries and
illnesses, not just those where an employer gave an injured or ill
employee ``time to rest and recover'' (Docket ID 0064).
Other commenters argued against OSHA's proposed use of the TCR and
for the use of a DART-rate metric. For example, the International
Bottled Water Association (IBWA) and the Coalition asserted that, per
OSHA's preamble, ``[a]ppendix B is meant to reflect employers in higher
hazard industries. While a higher DART may reflect such industries to
some extent, a higher TCR does not. This is because the TCR captures
relatively minor incidents--those that do not result in days away from
work, job restriction, or transfer'' (Docket IDs 0076, 0087). Both of
these commenters expressed concern that ``for example, under the
proposal, employers in industries with very few or no 'major' incidents
(i.e., those that result in days away from work, job restriction, or
transfer), but a larger number of 'minor' incidents will unfairly be
included in [a]ppendix B'' (Docket IDs 0076, 0087). On the other hand,
other commenters, such as AIHA, argued against the use of the DART rate
(Docket ID 0030).
Other commenters suggested other possible metrics in their
comments. For example, NIOSH commented, ``TCR may be the most
appropriate single criterion for selection of industries; however,
NIOSH believes that DART (Days Away, Restricted, or Transferred) and
fatality rates are also valuable for determining the magnitude of
injury risks in specific industries. There are two basic reasons why
some industries would rank differently based on TCR than they would on
DART or fatality rate. First, the nature of work differs among
industries and can result in different ratios of mild to severe
injuries. While the TCR represents mostly relatively mild injuries, the
severest injuries are the most important targets of prevention and
account for a very large share of the costs of injuries in the workers'
compensation system. Second, some industries may more fully report
injuries than others and so tend to have a higher ratio of TCR to DART
or fatality rate.'' (Docket ID 0035, Attachment 2). The International
Brotherhood of Teamsters concurred with NIOSH's comment (Docket ID
0083). AIHA offered a fourth possible metric: cases with days away,
observing, ``One other candidate, cases with days away, is perhaps the
most intuitive metric and most closely (though not exactly) aligned
with workers' compensation systems'' (Docket ID 0030).
Finally, AFL-CIO ``urge[d] OSHA to require all large establishments
with 100 or more employees, currently subject to recordkeeping
standards, to electronically report detailed injury and illness
information . . . as the value of these data has been thoroughly
explained by the agency and record of evidence in the 2016 final rule''
(Docket ID 0061). In other words, AFL-CIO asked OSHA to revise the
proposed provision to eliminate the requirement that only those
establishments in industries listed in appendix B would be required to
report. In AFL-CIO's recommendation, the only limitations would be
establishment size and being routinely required to keep injury and
illness records under part 1904.
Having reviewed the information in the record, OSHA rejects AFL-
CIO's suggestion to require all large establishments with 100 or more
employees (without regard to industry hazardousness) to submit
information. In the provisions related to the electronic submission of
Forms 300 and 301, OSHA has decided that it is appropriate to focus on
the most hazardous industries. Such a focus is a regular feature of
OSHA's recordkeeping regulations. For example, since 1982, OSHA has
exempted some low-hazard industries from maintaining injury and illness
records on a regular basis (see https://www.osha.gov/enforcement/directives/cpl-02-00-135). This partial exemption for low-hazard
industries currently appears in 29 CFR 1904.2. Similarly, since the
2016 final rule, OSHA has only required establishments with 20 or more
employees but fewer than 250 employees to submit information from Form
300A if those establishments are classified in an industry listed in
appendix A to subpart E to part 1904, i.e., if they are higher hazard
industries.
Focusing some recordkeeping requirements on higher hazard
industries has the benefit of enabling OSHA to better focus its
attention where it might have the highest impact, and lessens the
burden on less hazardous industries. OSHA finds that such a balance is
appropriate. Moreover, the agency will continue receiving information
from Form 300A from all recordkeeping establishments with 250 or more
employees. If the information from submitting establishments' Forms
300A, or from the BLS SOII and/or Census of Fatal Occupational Injuries
(CFOI), were to indicate that industries not listed on appendix B were
becoming more hazardous, OSHA could consider engaging in notice-and-
comment rulemaking to update appendix B. Further discussion on the
possibility of updating appendix B appears below in this section of the
Summary and Explanation.
As to the appropriate criteria, OSHA has decided to use several
data sources to populate the list of higher hazard industries in final
appendix B to subpart E. Specifically, OSHA finds that the TCR, the
DART rate, and the fatality rate are all important methods of
identifying higher hazard industries. As noted by some commenters,
while it is widely used in the United States and includes all types of
recorded injuries and illnesses, the TCR also includes data concerning
less severe injuries and illnesses (i.e., cases that resulted in
medical treatment beyond first aid but did not involve loss of
consciousness and/or did not result in restricted work or transfer to
another job, days away from work, or death). OSHA still considers the
TCR to be an appropriate rate to use for determining the list of
industries in appendix B to subpart E, especially since covered
establishments will be required to electronically submit information to
OSHA on all their recordable cases (i.e., total cases). However, OSHA
also agrees with commenters who suggested that information specifically
about severe injuries and illnesses is a reliable indication of whether
a specific industry is a high hazard industry. As NIOSH noted, the
nature of work differs among industries, and this can result in
different ratios of less severe and more severe injuries and illnesses.
Accordingly, OSHA has decided to use the DART rate and the fatality
rate in the BLS CFOI in addition to the TCR.
[[Page 47273]]
Adding the DART rate, which measures severe injuries and illnesses
resulting in days away from work, restricted work activity, or transfer
to another job, will ensure that industries with higher rates of severe
injuries are included, while using the TCR will ensure that OSHA is
capturing industries with higher injury and illness rates overall
(including less severe injuries and illnesses and, as discussed by NNU,
more serious injuries and illnesses in establishments where an employer
does not give the injured or ill employee ``time to rest and recover'')
(see Docket ID 0084).
Adding the fatality rate will also be helpful because fatalities
are more consistently reported than other injuries and illnesses. CFOI
produces comprehensive counts of workplace fatalities in the United
States. It is a Federal-State cooperative program that has been
implemented in all 50 States and the District of Columbia since 1992.
To compile counts that are as complete and accurate as possible, the
census uses multiple sources to identify, verify, and profile fatal
worker injuries. CFOI includes specific information about each
workplace fatality, including information about occupation and other
worker characteristics, equipment involved, and circumstances of the
event. All of the information in the CFOI is obtained by cross-
referencing the source records, such as death certificates, workers'
compensation reports, and Federal and State agency administrative
reports. To ensure that fatalities are work-related, cases are
substantiated with two or more independent source documents, or a
source document and a follow-up questionnaire. The CFOI fatality rate
is based on the number of deaths per 100,000 full-time-or-equivalent
employees. Adding the fatality rate from CFOI to the metrics used to
determine which industries should report in this final rule allows OSHA
to obtain data from industries with low non-fatal injury and illness
rates but high fatality rates.
OSHA does not think that the metric offered by AIHA (cases with
days away, or DAFW) is appropriate for this rulemaking. The DAFW rate
is a subset of the DART rate. It does not include cases in which an ill
or injured employee continues to work but is engaged in restricted
activities or job transfer. This is obviously more possible in some
establishments and industries than in others. For example, there might
be no alternative for restricted work or job transfer at a nursing care
facility for a patient-care worker who is unable to perform their
regular job duties due to an injury; thus, the injury would result in a
DAFW case. In contrast, it might be possible to temporarily reassign an
injured production-line worker to a different job on the production
line that accounts for the restrictions due to the injury; thus, the
injury would not result in a DAFW case. However, both injuries--the
days away from work case, as well as the restricted activities/job
transfer case--would be DART cases. Thus, the DART rate is a better
indicator of hazardousness across establishments and industries.
Given the concerns raised by commenters about specific injury and
illness rates, and in order to accurately identify higher hazard
industries, OSHA decided to use several factors in determining the list
of industries in final appendix B to subpart E. In addition to using
the TCR, OSHA analyzed industry hazardousness based on the DART rate
and the fatality rate. OSHA believes that using this approach more
comprehensively identifies higher hazard industries. The agency also
finds that this combination of factors furthers the agency's intention
of balancing the number of establishments covered and injury and
illness cases reported with the burden on employers, as well as not
expanding the submission requirement beyond establishments that are
already required to report information from the Form 300A. OSHA again
notes that all of the industries in final appendix B to subpart E are
also included in final appendix A to subpart E.
c. Cut-Off Rates for Determining the Industries in Appendix B to
Subpart E
Having determined the appropriate metrics (TCR, DART, and fatality
rates), OSHA now turns to the appropriate cut-off rates for selecting
the designated industries in appendix B to subpart E using the chosen
metrics. As discussed above, OSHA proposed including those industries
which had a 3-year-average rate of total recordable cases (Total Case
Rate, or TCR) in the BLS SOII for 2017, 2018, and 2019, of at least 3.5
cases per 100 full-time-equivalent employees. Some commenters argued
that the proposed cut-off (3.5 per 100 workers) was too low (e.g.,
Docket IDs 0054, 0076, 0087). For example, the Employers E-
Recordkeeping Coalition (``Coalition'') argued that, whether the DART
or TCR rate is used, ``OSHA should establish a higher threshold value
than it proposes.'' The Coalition explained that the proposed threshold
TCR value of 3.5 was based on BLS SOII data for 2017, 2018, and 2019,
but that ``BLS data--specifically data representing the highest rates
for cases with days away from work, restricted work activity, or job
transfer (DART)--from the same time period (2017, 2018, 2019)
demonstrates that the lowest incidence rate was 4.2.'' It further
observed, ``Similarly, even if use of the TCR for purposes of
determining those industries that should be included in [a]ppendix B is
maintained in the final rule, a higher threshold value should be used.
According to BLS data representing highest rates for total cases from
the same time period (2017, 2018, 2019), the lowest incidence rate was
6.8. . . Accordingly, to the extent the TCR is used for purposes of
determining those industries that should be included in [a]ppendix B,
the threshold value should be set at no less than 6.8. '' (Docket ID
0087). IBWA submitted a similar comment (Docket ID 0076). Additionally,
Dow Chemical Company argued that OSHA should use a TCR ``triggering''
rate that is substantially higher than the private industry average for
full time equivalent workers (which was 2.8 in 2019 and 2.7 in 2020).
Dow explained, ``This will reduce the burden on industry sectors who
have a TCR at or below private industry average'' (Docket ID 0054).
Other commenters suggested that the proposed cut-off of 3.5 was too
high (e.g., Docket IDs 0037, 0047, 0048, 0049, 0066, 0069, 0079, 0084).
Several commenters urged OSHA to include more industries in appendix B
by lowering the cut-off to the three-year national average for private
industry. These commenters expressed concern about many hazardous
workplaces and high-risk occupations in industries that are above the
national average for private industry but below the proposed 3.5 cut-
off, including many industries with establishments operated by the
nation's major employers (Docket IDs 0030, 0047, 0048, 0049, 0066,
0069, 0084). For example, the Strategic Organizing Center (SOC)
``applaud[ed] OSHA's decision to lower the employment threshold for
report[ing] the 300/301 data . . . [but] urge[d] OSHA to reject the use
of such a high rate threshold for the inclusion of the specific
industry codes'' (Docket ID0079). In support of this recommendation,
SOC argued that OSHA had not justified the proposed TCR level other
than projecting that it would result in a volume of cases (roughly
750,000) similar to the 2016 rule (Docket ID 0079).
With regard to the appropriate value for triggering the inclusion
of industries in appendix B to subpart E, the final rule, like the
proposed rule, has a cut-off of 3.5 cases per 100 employees. As
reflected in the comments, the 3.5 cut-off value, which OSHA proposed,
represents a balance between more
[[Page 47274]]
information and more employer burden with a lower cut-off, and less
information and less employer burden with a higher cut-off. For
example, the cut-offs suggested by the Employers E-Recordkeeping
Coalition in their comment (Docket ID 0087) would only result in the
submission of an estimated 90,395 cases from 3,087 establishments
(using the 6.8 TCR rate taken from BLS table 19SNR01 ``Highest
incidence rates of total nonfatal occupational injury and illness
cases'', 2019) or an estimated 72,143 cases from 3,946 establishments
(using the 4.2 DART rate taken from BLS table 19SNR02 ``Highest
incidence rates of nonfatal occupational injury and illness cases with
days away from work, restricted work activity, or job transfer'',
2019).\4\ The Coalition's proposal would severely restrict the list of
industries which would be required to submit data pursuant to this
rulemaking, which would, in turn, restrict OSHA's ability to target its
enforcement and compliance assistance efforts beyond that small subset
of industries. It would also limit the information available to
interested parties for occupational safety and health purposes, e.g.,
to evaluate occupational safety and health trends and patterns.
Consequently, it would drastically decrease the benefits of the rule.
---------------------------------------------------------------------------
\4\ See https://www.bls.gov/iif/nonfatal-injuries-and-illnesses-tables/soii-summary-historical/supplemental-table-1-2019-national.xlsx for the TCR table and https://www.bls.gov/iif/nonfatal-injuries-and-illnesses-tables/soii-summary-historical/supplemental-table-2-2019-national.xlsx for the DART table.
---------------------------------------------------------------------------
In addition, for this final rule, OSHA has chosen to use a DART
rate of 2.25 per 100 employees and CFOI fatality rate of 5.7 deaths per
100,000 full-time-or-equivalent employees) to identify higher hazard
industries. Both represent 1.5 times the national average for private
industry for the respective rates. OSHA believes that these thresholds,
which are well above the national averages for private industry,
represent an appropriate cut-off for determining whether a given
industry is a higher hazard industry. As discussed below, adding the
DART criterion and the CFOI fatality criterion adds 6 industries to
Appendix B (3 per criterion) that are below the TCR threshold; this
addresses, to some degree, the concerns expressed by commenters about
hazardous workplaces that are below the TCR threshold.
Moreover, OSHA projects that the use of these cutoffs will enable
it to receive Form 300 and 301 data on approximately 750,000 cases of
injuries and illnesses per year. Based on the record of the 2016
rulemaking, OSHA determined that roughly this amount of cases would
provide OSHA and others with sufficient information to make workplaces
safer, while not overburdening employers (see 87 FR 18543). Nothing in
the record of this rulemaking, or the comments OSHA had received in the
2019 rulemaking, has convinced OSHA that a different balance should be
struck in this rule. However, as discussed above, the agency has
tailored the collection to industries and establishments where the
information would be most useful for improving workplace safety and
health.
OSHA only proposed including industries in appendix B if they also
appeared in appendix A; establishments with 20 or more employees in
industries in appendix A have already been required to electronically
submit information from their Form 300A since 2017. OSHA did not
receive any comments objecting to this part of the proposal and has
decided to retain this requirement in the final rule. However, several
interested parties argued that additional appendix A industries should
be listed in appendix B.
For example, the AFL-CIO commented that the proposed exclusion for
large establishments in certain industries from appendix B, ``which
further limits the ability to identify trends among workplace hazards
in high risk industries,'' means that a significant number of
industries will not be required to electronically submit OSHA Form 300
and 301 data to OSHA, including all of the utility sectors and almost
all of the construction industry[,]'' as well as a number of other
industries with large establishments (Docket ID 0061). The
Communications Workers of America commented that appendix B, like
appendix A, should include all industries in the manufacturing sector
(Docket ID 0092). SOC similarly characterized OSHA's proposal to limit
the requirement to submit Forms 300 and 301 to industries with a TCR of
at least 3.5 as a decision to ``arbitrarily exclude entire hazardous
industries from the revised reporting requirement.'' In particular, SOC
objected to the exclusion of the hotel industry, which, based on an
analysis by the National Employment Law Project, SOC believes is a high
hazard industry (Docket ID 0079).
The AFL-CIO also commented that the industry exclusions from
appendix B should not be based on BLS SOII data, because the data are
an inadequate measure of industry hazardousness. It argued that SOII
data, even recent three-year averages, is not an effective way to
ensure that high-hazard industries are captured consistently in the
data. The AFL-CIO further asserted that, ``[R]elying on these data to
create exclusion criteria ignores the known limitations of current
workplace injury and illnesses data. Over the last decade, studies have
documented that the BLS injury and illness survey fails to capture an
estimated 33-69% of work-related injuries. Some of the undercount has
been attributed to injuries and illnesses excluded from the BLS
survey's scope and the design of the survey.'' (Docket ID 0061).
In response, OSHA notes that there is no express exemption for
specific industries in appendix B to subpart E. The list of industries
in final appendix B is based on objective injury and illness data
indicating that a specific industry is a higher hazard industry. Any
exclusion or omission from the list of designated industries in final
appendix B is solely the result of a given industry not meeting the
higher hazard industry criteria specified above, criteria which have
been expanded under this final rule based on public comments. Moreover,
OSHA disagrees with SOC's characterization of its preliminary decisions
regarding the industries included on appendix B as ``arbitrar[y]''
(Docket ID 0079). As stated throughout the preamble to this final rule,
in proposing a higher hazard cut-off level, the agency was seeking to
balance the utility of the information collection for enforcement,
outreach, and research, on the one hand, with the burden on
establishments on the other. That is not to say that the agency found
that it would be economically infeasible for industries other than
those listed on proposed or final appendix B to submit their Form 300
or 301 data. Indeed, no such finding is required here. Rather, OSHA
looked to see what amount of information would be useful, considering
the number of establishments that would be reporting under the final
rule, the number of cases that would be submitted, the agency's
capacity to review such information, and the benefits that would stem
from the collection. The agency has determined that at the current
time, requiring larger, high hazard establishments to submit their data
can make a substantial impact on worker safety and health, and the
benefits of making other employers do so as well is less certain. OSHA
has decided to focus the rule on the establishments in industries in
which additional information has the most promise of addressing serious
workplace hazards. Further, OSHA notes that it will continue to receive
300A data from very large establishments (those with 250 or
[[Page 47275]]
more employees) in all industries required to keep records under part
1904 and can continue to use those data for targeting purposes as well.
OSHA will monitor the data it receives, and in the future, it may
consider new notice-and-comment rulemaking to adjust its approach in
light of its experience with the data collected under this final rule.
In addition, OSHA disagrees with the comment from the AFL-CIO that
BLS SOII data are not a reliable method for measuring industry
hazardousness. While BLS and its research partners have conducted
multiple studies which indicate that SOII fails to capture some cases,
the BLS SOII is an important indicator of occupational safety and
health and is the only source of national-level data on nonfatal
injuries and illnesses that spans the private sector and State and
local governments. Accordingly, OSHA is not making any adjustments to
the proposed appendix B industries based on these comments. However, as
discussed in more detail below, OSHA notes that the application of the
updated criteria for inclusion on appendix B has led to six new
industries being added to appendix B. These industries include NAICS
1133, Logging, NAICS 4853, Taxi and Limousine Services, and NAICS 4889,
Other Support Activities for Transportation--all industries that AFL-
CIO identified as industries with large establishments not included in
proposed appendix B that ``should be required to submit the injury and
illness data they are already required to collect'' (Docket ID 0061).
Consequently, the final rule responds to AFL-CIO's comment in part by
adding three additional NAICS codes based on the objective criteria in
this final rule.
d. Using the Most Current Data To Determine Designated Industries
In the preamble to the proposed rule, OSHA stated that the agency
anticipated that more current industry-level injury and illness data
from BLS, as well as more establishment-specific injury and illness
information from the ITA, would become available. OSHA therefore
explained that the agency may rely on the most current data available,
as appropriate, for determining the list of industries in appendix B to
subpart E. OSHA sought comment from the public on whether the agency
should use the most current data when developing the final rule (see 87
FR 18543).
The Phylmar Regulatory Roundtable (PRR) Occupational Safety and
Health, OSH Forum commented that while it agrees with the concept that
the most up-to-date information is the most accurate and should
determine the list of industries, OSHA should not include any new
industries in appendix B to subpart E in the final rule. According to
this commenter, doing so would not allow impacted industries the
opportunity to comment on such significant changes. Also, PRR
recommended that any additions to the list of industries (or sub-sets
of industries) in appendix B that result from OSHA analyzing updated
data should be conducted through notice and comment rulemaking (Docket
ID 0094).
In response, OSHA agrees with PRR that the list of higher hazard
industries in appendix B to subpart E should be based on data that was
available at the time of the proposed rule. OSHA notes that, although
the criteria used for determining the list of higher hazard industries
in appendix B has been modified for the final rule, all of the data
used to develop those criteria were available at the time of the
proposed rule. Specifically, the cut-off threshold used for the TCR
rate is based on a 3-year-average from 2017, 2018, and 2019, the cut-
off threshold for the DART rate is based on a 3-year-average from 2017,
2018, and 2019, and the cut-off threshold for the fatality rate is
based on data from 2019.
Additionally, in the preamble to the proposed rule, OSHA stated
that during the 2016 rulemaking, the agency agreed with commenters who
stated that the list of designated industries (listed in appendix A at
that time) should not be updated each year. OSHA explained that moving
industries in and out of the appendix each year would be confusing.
OSHA also stated that keeping the same industries in the appendix each
year would increase the stability of the system and reduce uncertainty
for employers. Accordingly, OSHA did not, as part of the 2016
rulemaking, include a requirement to annually or periodically adjust
the list of designated industries to reflect more recent BLS injury and
illness data. OSHA also committed that any such revision to the list of
designated industries in the future would require additional notice and
comment rulemaking (see 87 FR 29641). However, OSHA again raised the
issue of periodic updating of the designated industries in appendix B
to subpart E in the preamble to the proposed rule in this rulemaking
(see 87 FR 18543). Specifically, in Alternative #2, OSHA explained the
above information regarding its decision in the 2016 rulemaking,
explained that it ``could regularly update the list of designated
industries in proposed appendix B (industries where establishments with
100 or more employees must submit information from the Form 300 and 301
as well as the 300A)--for example, every 6 years, to align with the PRA
approval periods,'' and then welcomed comment on this issue (87 FR
18543).
OSHA received several comments on this issue. In its comments, Dow
stated that it did not support the regular updating of the list of
designated industries proposed in appendix B. Dow argued, ``Revising
this list and moving employers in and out would be extremely confusing
and introduce unneeded instability into the data collection process. If
the list of designated industries in appendix B were to be revised,
OSHA must provide notice and a rulemaking comment period'' (Docket ID
0054). In contrast, PRR commented that, if OSHA's assumption that the
collection of establishment-specific data will reduce injury and
illness rates, then the agency should be able to analyze data for the
designated industries and consider updating and removing industries
from the appendices (Docket ID 0094).
OSHA agrees with the comments stating that the list of designated
industries in appendix B to subpart E should not be updated on a
regular basis. As in the 2016 rulemaking, OSHA finds that moving
industries in and out of appendix B to subpart E on a periodic basis
would be confusing for employers. Employers are less likely to
encounter confusion when trying to determine whether their
establishments are required to electronically submit data to OSHA if
the list of industries in appendix B remains stable; appropriate future
adjustments, if any, would be accomplished through notice and comment
rulemaking. OSHA also believes that keeping the same industries in
appendix B to subpart E will increase the stability of the electronic
submission system and increase compliance with the submission
requirement. Accordingly, OSHA will not, as part of this rulemaking,
include a provision for the regular or periodic updating of the list of
industries in appendix B to subpart E.
In making this decision, OSHA acknowledges that industries' injury
and illness rates may change. As PRR commented, OSHA expects that this
rulemaking will aid in the decrease in such rates. If OSHA's ongoing
analyses of injury and illness rates show a decrease in injuries and
illnesses in particular industries included on appendix B, then OSHA
may consider removing those industries from appendix B. Similarly, if
OSHA learns that injury and illness rates in industries that are not
included on appendix B are
[[Page 47276]]
rising, then OSHA may consider adding those industries to appendix B.
However, in either case, OSHA would propose any such change via notice-
and-comment rulemaking, in part to obviate the confusion mentioned
above.
e. Industries Included in Final Appendix B After Applying the Final
Criteria, Cut-Off Rates, and Data Sources
Based on the above decisions, final appendix B to subpart E of part
1904 includes industries that:
1. had a 3-year-average rate of total recordable cases (Total Case
Rate, or TCR) in the BLS SOII for 2017, 2018, and 2019, of at least 3.5
cases per 100 full-time-equivalent employees, OR
2. had a 3-year-average DART rate in the BLS SOII for 2017, 2018,
and 2019 of at least 2.25 cases per 100 full-time-equivalent employees,
OR
3. had a fatality rate in the BLS Census of Fatal Occupational
Injuries (CFOI) of at least 5.7 deaths per 100,000 full-time-equivalent
employees, AND
4. are included in appendix A to subpart E. (All of the industries
in appendix B are also in appendix A.)
No industries were removed from appendix B based on these criteria.
However, six new industries have been added to appendix B. The new
industries are:
NAICS 1133--Logging (2019 fatality rate of 47.6),
NAICS 1142--Hunting and Trapping (three-year average DART
rate of 3.1),
NAICS 3379--Other Furniture Related Product Manufacturing
(three-year average DART rate of 2.27),
NAICS 4239--Miscellaneous Durable Goods Merchant
Wholesalers (2019 fatality rate of 15.6),
NAICS 4853--Taxi and Limousine Service (2019 fatality rate
of 6.9), and
NAICS 4889--Other Support Activities for Transportation
(three-year average DART rate of 2.4).
The application of the criteria and cut-offs to each industry that
was added to appendix B is summarized in the following table:
New Industries in Final Appendix B
----------------------------------------------------------------------------------------------------------------
High fatality
2017 NAICS 4-digit Industry High TCR High DART rate
----------------------------------------------------------------------------------------------------------------
1133......................... Logging.................. No............... ................. Yes.
1142......................... Hunting and Trapping..... No............... Yes.
3379......................... Other Furniture Related No............... Yes.
Product Manufacturing.
4239......................... Miscellaneous Durable No............... ................. Yes.
Goods Merchant
Wholesalers.
4853......................... Taxi and Limousine No............... ................. Yes.
Service.
4889......................... Other Support Activities No............... Yes. ................
for Transportation.
----------------------------------------------------------------------------------------------------------------
All of the establishments with 100 or more employees in these newly
included industries are also included in appendix A to subpart E, and,
therefore, have been required to electronically submit data from their
300A to OSHA once a year since January 1, 2017. Because of their
inclusion in appendix A, OSHA finds that each of these newly included
industries should have been aware of this rulemaking. Moreover, in the
preamble to the proposed rule, OSHA specifically indicated that the
criteria for determining higher hazard industries might be modified for
the final rule (indeed, OSHA asked for comment on this issue (see,
e.g., 87 FR 18543, 18546)). Consequently, OSHA finds that the proposal
placed all six of the newly added industries on notice that they could
be included in appendix B in this final rule and, thus, these
industries had an opportunity to comment on issues related to that
determination.
In the proposed rule, OSHA stated that it was proposing one
exception to these criteria, for the United States Postal Service
(USPS), which is the only employer in NAICS 4911 Postal Service. OSHA
explained BLS does not include USPS in the SOII. However, under the
Postal Employees Safety Enhancement Act (Pub. L. 105-241), OSHA treats
the USPS as a private sector employer for purposes of occupational
safety and health, and establishments in NAICS 4911 (i.e., USPS
establishments) with 20 or more employees are currently required to
electronically submit Form 300A information to OSHA. Using the 2017,
2018, and 2019 data submitted by USPS, OSHA calculated a TCR of 7.5 for
NAICS 4911. Because this TCR is greater than the proposed 3.5 criterion
for designated industries in proposed appendix B, OSHA included NAICS
4911 in proposed appendix B to subpart E. In so doing, OSHA noted that
NAICS 4911 was also included in both current and proposed appendix A to
subpart E (87 FR 18543).
OSHA did not receive any comments from interested parties regarding
the proposed inclusion of USPS in appendix B. Due to the lack of an
objection to its inclusion and USPS's high TCR level (as calculated by
OSHA), the agency has decided to include USPS in the final version of
appendix B.
The final appendix B to subpart E is as follows:
------------------------------------------------------------------------
NAICS Industry
------------------------------------------------------------------------
1111....................... Oilseed and Grain Farming.
1112....................... Vegetable and Melon Farming.
1113....................... Fruit and Tree Nut Farming.
1114....................... Greenhouse, Nursery, and Floriculture
Production.
1119....................... Other Crop Farming.
1121....................... Cattle Ranching and Farming.
1122....................... Hog and Pig Farming.
1123....................... Poultry and Egg Production.
1129....................... Other Animal Production.
1133....................... Logging.
1141....................... Fishing.
1142....................... Hunting and Trapping.
1151....................... Support Activities for Crop Production.
1152....................... Support Activities for Animal Production.
[[Page 47277]]
1153....................... Support Activities for Forestry.
2213....................... Water, Sewage and Other Systems.
2381....................... Foundation, Structure, and Building
Exterior Contractors.
3111....................... Animal Food Manufacturing.
3113....................... Sugar and Confectionery Product
Manufacturing.
3114....................... Fruit and Vegetable Preserving and
Specialty Food Manufacturing.
3115....................... Dairy Product Manufacturing.
3116....................... Animal Slaughtering and Processing.
3117....................... Seafood Product Preparation and Packaging.
3118....................... Bakeries and Tortilla Manufacturing.
3119....................... Other Food Manufacturing.
3121....................... Beverage Manufacturing.
3161....................... Leather and Hide Tanning and Finishing.
3162....................... Footwear Manufacturing.
3211....................... Sawmills and Wood Preservation.
3212....................... Veneer, Plywood, and Engineered Wood
Product Manufacturing.
3219....................... Other Wood Product Manufacturing.
3261....................... Plastics Product Manufacturing.
3262....................... Rubber Product Manufacturing.
3271....................... Clay Product and Refractory Manufacturing.
3272....................... Glass and Glass Product Manufacturing.
3273....................... Cement and Concrete Product Manufacturing.
3279....................... Other Nonmetallic Mineral Product
Manufacturing.
3312....................... Steel Product Manufacturing from Purchased
Steel.
3314....................... Nonferrous Metal (except Aluminum)
Production and Processing.
3315....................... Foundries.
3321....................... Forging and Stamping.
3323....................... Architectural and Structural Metals
Manufacturing.
3324....................... Boiler, Tank, and Shipping Container
Manufacturing.
3325....................... Hardware Manufacturing.
3326....................... Spring and Wire Product Manufacturing.
3327....................... Machine Shops; Turned Product; and Screw,
Nut, and Bolt Manufacturing.
3328....................... Coating, Engraving, Heat Treating, and
Allied Activities.
3331....................... Agriculture, Construction, and Mining
Machinery Manufacturing.
3335....................... Metalworking Machinery Manufacturing.
3361....................... Motor Vehicle Manufacturing.
3362....................... Motor Vehicle Body and Trailer
Manufacturing.
3363....................... Motor Vehicle Parts Manufacturing.
3366....................... Ship and Boat Building.
3371....................... Household and Institutional Furniture and
Kitchen Cabinet Manufacturing.
3372....................... Office Furniture (including Fixtures)
Manufacturing.
3379....................... Other Furniture Related Product
Manufacturing.
4231....................... Motor Vehicle and Motor Vehicle Parts and
Supplies Merchant Wholesalers.
4233....................... Lumber and Other Construction Materials
Merchant Wholesalers.
4235....................... Metal and Mineral (except Petroleum)
Merchant Wholesalers.
4239....................... Miscellaneous Durable Goods Merchant
Wholesalers.
4244....................... Grocery and Related Product Merchant
Wholesalers.
4248....................... Beer, Wine, and Distilled Alcoholic
Beverage Merchant Wholesalers.
4413....................... Automotive Parts, Accessories, and Tire
Stores.
4422....................... Home Furnishings Stores.
4441....................... Building Material and Supplies Dealers.
4442....................... Lawn and Garden Equipment and Supplies
Stores.
4451....................... Grocery Stores.
4522....................... Department Stores.
4523....................... General Merchandise Stores, including
Warehouse Clubs and Supercenters.
4533....................... Used Merchandise Stores.
4543....................... Direct Selling Establishments.
4811....................... Scheduled Air Transportation.
4841....................... General Freight Trucking.
4842....................... Specialized Freight Trucking.
4851....................... Urban Transit Systems.
4852....................... Interurban and Rural Bus Transportation.
4853....................... Taxi and Limousine Service.
4854....................... School and Employee Bus Transportation.
4859....................... Other Transit and Ground Passenger
Transportation.
4871....................... Scenic and Sightseeing Transportation,
Land.
4881....................... Support Activities for Air Transportation.
4883....................... Support Activities for Water
Transportation.
4889....................... Other Support Activities for
Transportation.
4911....................... Postal Service.
4921....................... Couriers and Express Delivery Services.
4931....................... Warehousing and Storage.
5322....................... Consumer Goods Rental.
5621....................... Waste Collection.
[[Page 47278]]
5622....................... Waste Treatment and Disposal.
6219....................... Other Ambulatory Health Care Services.
6221....................... General Medical and Surgical Hospitals.
6222....................... Psychiatric and Substance Abuse Hospitals.
6223....................... Specialty (except Psychiatric and Substance
Abuse) Hospitals.
6231....................... Nursing Care Facilities (Skilled Nursing
Facilities).
6232....................... Residential Intellectual and Developmental
Disability, Mental Health, and Substance
Abuse Facilities.
6233....................... Continuing Care Retirement Communities and
Assisted Living Facilities for the
Elderly.
6239....................... Other Residential Care Facilities.
6243....................... Vocational Rehabilitation Services.
7111....................... Performing Arts Companies.
7112....................... Spectator Sports.
7131....................... Amusement Parks and Arcades.
7211....................... Traveler Accommodation.
7212....................... RV (Recreational Vehicle) Parks and
Recreational Camps.
7223....................... Special Food Services.
------------------------------------------------------------------------
2. Information To Be Submitted
Section 1904.41(b)(9) of the final rule specifies which information
must be submitted under Sec. 1904.41(a)(2). Consequently, comments on
the proposed information to be submitted and OSHA's responses to those
comments are discussed in Section III.D of this Summary and
Explanation, on Sec. 1904.41(b)(9). However, because this summary and
explanation section covers comments on issues that relate to the
information that establishments must submit under Sec. 1904.41(a)(2),
OSHA is briefly previewing those requirements here. Specifically, as
laid out in question-and-answer format in Sec. 1904.41(b)(9),
establishments that are required to submit information under Sec.
1904.41(a)(2) of this section must submit all the information from the
OSHA Forms 300 and 301 except for the following case-specific
information:
Employee name (column B), from the Log of Work-Related
Injuries and Illnesses (OSHA Form 300).
Employee name (Field 1), employee address (Field 2), name
of physician or other health care professional (Field 6), and facility
name and address if treatment was given away from the worksite (Field
7) from the Injury and Illness Incident Report (OSHA Form 301).
Section 1904.41(b)(9) of the final rule is identical to proposed
Sec. 1904.41(b)(9).
3. Publication of Electronic Data
As discussed above, OSHA intends to make some of the data it
collects public. The publication of specific data elements will in part
be restricted by applicable Federal law, including provisions of the
Freedom of Information Act (FOIA), as well as specific provisions
within part 1904. OSHA will make the following data from Forms 300 and
301 available in a searchable online database:
Form 300 (the Log)--All collected data fields on the 300
Log will generally be made available on OSHA's website. As specified in
Sec. 1904.41(b)(9), employee names will not be collected. OSHA notes
that it often collects copies of establishments' Forms 300 during
inspections and includes them as part of the enforcement case file.
Prior to this rulemaking, OSHA has not conducted a systematic
collection of the information on the 300 Log. However, OSHA releases
the Forms 300 that it does have (in case files) in response to FOIA
requests, subject to application of the FOIA exemptions. In those
responses, OSHA redacts employee names pursuant to FOIA Exemptions.
Form 301 (Incident Report)--All collected data fields on
the right-hand side of the form (Fields 10 through 18) will generally
be made available. As specified in Sec. 1904.41(b)(9), employee name
(Field 1), employee address (Field 2), name of physician or other
health care professional (Field 6), and facility name and address if
treatment was given away from the worksite (Field 7) will not be
collected. OSHA notes that it often collects copies of establishments'
Forms 301 during inspections and includes them as part of the
enforcement case file. Prior to this rulemaking, OSHA has not conducted
a systematic collection of the information on the 301 Incident Report.
However, OSHA releases the forms that it does have in response to FOIA
requests, subject to application of the FOIA exemptions. Section
1904.35(b)(2)(v)(B) prohibits employers from releasing the information
in Fields 1 through 9 (the left-hand side of the form) to individuals
other than the employee or former employee who suffered the injury or
illness and his or her personal representatives, and OSHA does not
release this information under FOIA. Similarly, OSHA will not publish
establishment-specific data from the left side of Form 301.
OSHA intends to publish information from the Forms 300 and 301 as
both text-based and coded data. An example of text-based data would be,
``Second degree burns on right forearm from acetylene torch'' in Field
F (``Describe injury or illness, parts of body affected, and object/
substance that directly injured or made person ill'') on the Form 300.
An example of coded data for this case, using the Occupational Injury
and Illness Classification System (OIICS) Manual, would be:
Nature of injury: 1,520 (heat (thermal) burns, unspecified)
Part of body affected: 423 (forearm)
Source of injury or illness: 7,261 (welding, cutting, and blow
torches)
Event or exposure: 533 (contact with hot objects or
substances)
For text-based data, as discussed below, OSHA plans to use
automated de-identification technology, supplemented with some manual
review of the data, to identify and remove information that could
reasonably be expected to identify individuals directly from the fields
the agency intends to publish (as discussed above); the agency will not
publish text-based data until such information, if any, has been
identified and removed. For coded data, also as discussed below, OSHA
plans to use an automated coding system to code the collected data;
until the autocoding system has been tested and is in place, OSHA
intends to only use and publish uncoded data. The coded data by its
nature will not include any information which could reasonably be
expected to identify employees directly, and thus there will be no need
to use automated de-identification technology or manual de-
identification before publishing coded data.
[[Page 47279]]
4. Benefits of Collecting and Publishing Data From Forms 300 and 301
As discussed in more detail below, OSHA has determined that this
final rule will improve worker safety and health because the collection
of, and expanded public access to, establishment-specific, case-
specific, injury and illness data from Forms 300 and 301 will allow
OSHA, employers, employees, researchers, safety consultants, and the
general public to use the data in ways that will ultimately result in
the reduction of occupational injuries and illnesses.
In the preamble to the 2019 final rule, OSHA stated that, because
the agency ``already has systems in place to use the 300A data for
enforcement targeting and compliance assistance without impacting
worker privacy, and because the Form 300 and 301 data would provide
uncertain additional value, the Form 300A data are sufficient for
enforcement targeting and compliance assistance at this time'' (84 FR
392). The uncertainty regarding the extent of the benefits was based,
in part, on the determination that ``[b]ecause . . . publishing the
data would do more harm than good for reasons described more fully
below and in the privacy discussion above, OSHA would not make the data
public even if collected'' (84 FR 390). In addition, at the time of the
2019 final rule, ``OSHA ha[d] already taken the position that data from
Form 300A is exempt from disclosure under FOIA and that OSHA will not
make such data public for at least the approximately four years after
its receipt that OSHA intends to use the data for enforcement
purposes'' (84 FR 391).
Since publication of the 2019 final rule, however, OSHA is now
better able to collect, analyze, and publish data from Forms 300 and
301, and advances in technology have reduced the risk that information
that could reasonably be expected to identify individuals directly will
be disclosed to the public. Also, improvements in technology have
reduced the manual resources needed to identify and remove sensitive
worker information from 300 and 301 forms. These developments will
allow OSHA to more effectively review and analyze the collected 300 and
301 data and ensure that information which could reasonably be expected
to identify employees directly is removed prior to publication. For
example, as discussed below, more advanced autocoding technology will
allow OSHA to more efficiently review and analyze the data, allowing
the agency to focus its enforcement targeting and compliance assistance
resources on specific hazards at establishments with safety and health
problems, resulting in a reduction of work-related injuries and
illnesses. Similarly, advances in technology to identify and remove
information which could reasonably be expected to identify employees
directly will reduce the resources needed to publish text-based
information while adequately protecting worker privacy. In addition,
OSHA plans to publish the coded data produced by the more advanced
autocoding technology, which by its nature will not include any
information which could reasonably be expected to identify employees
directly.\5\
---------------------------------------------------------------------------
\5\ OSHA, like other Federal agencies, is responsible for
protecting personally identifiable information (PII) in accordance
with law and policy. Throughout this preamble, OSHA identifies and
discusses multiple ways in which the agency fulfills this
responsibility.
---------------------------------------------------------------------------
Additionally, as explained above, since 2020, there have been
multiple court decisions adverse to the Department of Labor's position
that electronically submitted Form 300A data are exempt from public
disclosure under the FOIA. In these decisions, courts have rejected the
Department of Labor's position that electronically submitted 300A
injury and illness data was covered under the confidentiality exemption
in FOIA Exemption 4. As a result, in August 2020, OSHA initiated a
policy to post collected 300A data on its public website at https://www.osha.gov/Establishment-Specific-Injury-and-Illness-Data, with
submissions for calendar years 2016, 2017, 2018, 2019, 2020, and 2021.
Accordingly, based on the recent developments described above, and
the additional information included in the record for this rulemaking,
OSHA now believes there are significant benefits resulting from the
collection and publication of establishment-specific, case-specific,
injury and illness data from Forms 300 and 301. In addition, as
explained below, OSHA concludes that the significant benefits
associated with the collection and publication of Forms 300 and 301
data outweigh the slight risk to employee privacy. Indeed, the benefits
of collection alone would outweigh the slight risk to employee privacy.
As explained in more detail below, after considering the record as
a whole, including commenters' responses to specific questions in the
NPRM on this topic, OSHA finds that the collection of, and expanded
public access to, establishment-specific, case-specific, injury and
illness data will allow OSHA, employers, employees, potential
customers, employee representatives, researchers, safety consultants,
and the general public to use the data in ways that will ultimately
result in the reduction of occupational injuries and illnesses (see 87
FR 18547).
a. General Benefits of Collecting and Publishing Data From Forms 300
and 301
OSHA received several comments on the general benefits of
collecting and publishing data from Forms 300 and 301. For example,
Miranda Ames commented, ``The more data we have about workplace safety,
the better we can do at protecting workers. Collection of information
like this by OSHA will enable better statistical analysis of workplace
injuries across industries, and incentivize employers to keep more
thorough records of workplace incidents and accidents'' (Docket ID
0011).
Similarly, Cal/OSHA commented, ``Complete and accurate surveillance
of occupational injury and illness is essential and holds significant
value for informed policy decisions and for effective intervention and
prevention programs. The policy of requiring submission of detailed
information from larger employers specifically helps identify and abate
workplace hazards by improving the surveillance of occupational injury
and illness.'' (Docket ID 0084). This commenter also explained that the
proposed requirements for reporting detailed information, and the
transparency that it creates, encourage and support accurate
occupational injury and illness reporting (Docket ID 0084). Similarly,
Centro de los Derechos del Migrante, Inc. commented that making the
data publicly available will increase the accuracy of such records and
address underreporting by employers (Docket ID 0089).
In addition, commenters suggested that the collection and
publication of Forms 300 and 301 data will allow the agency to receive
more detailed information on the nature and circumstances of work-
related injuries and illnesses, and target its limited enforcement and
compliance assistance resources to protect the greatest number of
workers (Docket IDs 0040, 0064). Commenters also noted that this rule
may particularly benefit low-income and minority workers (Docket IDs
0045, 0048). For example, National COSH stated that Latino and Black
workers are at greater risk of dying on the job than other workers, and
this rule ``is critical to improving worker safety and health,
especially for workers at elevated risk of injury, illness and death''
(Docket ID 0048).
On the other hand, some commenters questioned whether OSHA had
[[Page 47280]]
adequately justified the benefits of collecting and publishing data in
the proposed rule. For example, NFIB stated that many of the reasons
that OSHA gives in the preamble to the proposed rule to justify the
collection and publication of information are ``rather flimsy'' (Docket
ID 0036). Some commenters stated that the collected data would not
benefit workplace safety and health, concluding that OSHA recordkeeping
data are not useful. For example, an anonymous commenter stated that
data collection is reactive, and that taxpayer money would be much
better spent on proactive programs that improve safety and health in
the workplace. This commenter also asked, ``How do employers know that
OSHA will not start targeting them due to injuries that are reported?''
(Docket ID 0014). The U.S. Poultry & Egg Association commented that the
existing reporting rules are adequate to allow employers to identify
risks and allow OSHA to direct its enforcement activities, and stated
that a reduction in injury and illness rates in poultry processing and
general manufacturing from 1994 to 2020 is evidence that OSHA's
proposed changes are unnecessary (Docket ID 0053).
Mid Valley Agricultural Services commented, ``It is unclear how the
proposed rule will result in reductions to injuries/illnesses in the
workplace or the frequency and severity of instances. Aggregating more
data on workplace injuries/illnesses does nothing in and of itself to
reduce the possibility of workplace injuries/illnesses'' (Docket ID
0019). The Plastics Industry Association (Docket ID 0086) and Angela
Rodriguez (Docket ID 0052) submitted similar comments. In addition, the
U.S. Chamber of Commerce resubmitted a comment from the 2016 rulemaking
that argued that OSHA's collection of injury and illness data would not
lead to effective targeting of workplaces ``because information about
an establishment's incidences of workplace injuries and illnesses does
not accurately or reliably correlate with an establishment that is
hazardous or that has failed to take OSHA-compliant steps to prevent
injuries'' (Docket ID 0088, Attachment 2). The comment asserted that a
study by the RAND Corporation ``found that no research supports the
preconception that the goal of reducing workplace injuries and
illnesses can be most effectively reached by focusing on workplaces
with the highest number of incidents of injuries or illnesses'' and
that ``there appears to be little relationship between the injury rate
and the likelihood of violations at inspected establishments.'' The
comment concluded that ``this proposed database will provide raw data
subject to so many caveats, complexities, and assumptions as to be
meaningless.''
In response, OSHA agrees with commenters who generally stated that
there are benefits resulting from the collection and publication of
establishment-specific, case-specific, injury and illness data from
Forms 300 and 301. As discussed in more detail below, the primary
purpose of the requirement in the final rule for the electronic
submission of 300 and 301 data, and the subsequent publication of
certain data, is to prevent occupational injuries and illnesses through
the use of timely, establishment-specific injury and illness data by
OSHA, employers, employees, other Federal agencies and States,
researchers, workplace safety consultants, and the public. The
collection and publication of data from Forms 300 and 301 will not only
increase the amount of information available for analysis, but will
also result in more accurate statistics regarding work-related injuries
and illnesses, including more detailed statistics on injuries and
illnesses for specific occupations and industries. In other words, the
increase in collected injury and illness data will necessarily result
in more accurate statistics. In turn, more accurate statistics will
enhance interested parties' knowledge regarding specific workplace
hazards.
Relatedly, OSHA agrees with commenters that said making the data
publicly available will increase the accuracy of occupational injury
and illness reporting. To the extent that underreporting is a problem,
the public availability of case-specific data will allow employees to
assess whether their personally experienced injuries and illnesses have
been accurately recorded on their employers' Forms 300 and 301.
Although others would not be able to identify that a specific employee
suffered a particular injury or illness, OSHA expects that the injured
or ill worker would be able to determine whether their particular
injury or illness was recorded. This check would work in tandem with
employees' ability to check such things in an employer's Forms 300 and
301 and would address employees' fear that asking to view those forms
could result in retaliation. OSHA has also discussed these issues in
further detail in Section III.B.4.d of the Summary and Explanation.
The requirement to submit establishment-specific, case-specific
data will also assist OSHA in encouraging employers to prevent
occupational injuries and illnesses by expanding OSHA's access to the
information that employers are already required to keep under part
1904. As noted elsewhere, OSHA typically only has access to
establishment-specific, case-specific, injury and illness information
when it conducts an onsite safety and health inspection at an
individual establishment. However, the electronic submission of 300 and
301 data will allow OSHA to obtain a much larger data set of
information about work-related injuries and illnesses and will enable
the agency to use its enforcement and compliance assistance resources
more effectively. OSHA intends to use the collected data to identify
establishments with recognized workplace hazards where workers face a
high risk of sustaining occupational injuries and illnesses.
The collection of establishment-specific, case-specific information
will also provide data for analyses that are not currently possible.
OSHA plans to use the data collected from this final rule to assess
changes in the types and rates of specific injuries and illnesses in a
given industry over a long period of time. In addition, the data
collection will allow OSHA to better evaluate the effectiveness and
efficiency of its various safety and health programs, initiatives, and
interventions in different industries and geographic areas.
Additionally, for these reasons, OSHA disagrees with commenters that
suggest current reporting requirements are adequate to protect worker
safety and health.
OSHA disagrees with commenters that stated that part 1904 injury
and illness data are not useful in improving occupational safety and
health, and that taxpayer funds would be better spent on more proactive
measures. As noted above, OSHA's injury and illness recordkeeping
regulation has been in place since 1971. The information recorded on
the OSHA forms is recognized by safety and health professionals as an
essential tool for identifying and preventing workplace injuries and
illnesses. Historically, employers, employees, and OSHA have used part
1904 information to identify injury and illness trends and to evaluate
the effectiveness of abatement methods at an individual establishment.
The collection and publication of certain data from the 300 and 301
forms required by this final rule will enable interested parties and
OSHA to have access to a much larger data set, resulting in increased
knowledge of workplace hazards, and a reduction in occupational
injuries and illnesses. In addition, implementation of the collection
and publication of
[[Page 47281]]
establishment-specific, case-specific, injury and illness data is a
cost-effective measure used to improve workplace safety and health.
OSHA estimates that the total cost for implementing the requirements of
this final rule will have an annual cost to the government of
approximately $554,000 per year. However, the agency expects that the
increased knowledge of workplace hazards and injury and illness trends,
as well as the expected improved accuracy of part 1904 records, will
result in decreased workers' compensation costs for employers and
decreased healthcare costs for injured or ill employees by virtue of
the reduction in workplaces injuries and illnesses that OSHA expects to
result from this final rule. OSHA also notes, as discussed below, that
the agency's collection of this information will allow it to more
effectively prioritize its compliance assistance resources, which will
help employers better protect their employees.
OSHA agrees that the injury and illness data collected as a result
of this final rule may be used to target certain establishments for
safety and health inspection or compliance assistance. The agency
considers the use of the collected data for possible targeting of
specific establishments for enforcement or compliance assistance
intervention as a benefit of this final rule. Again, as noted above,
OSHA expects the accuracy and quality of occupational injury and
illness data to improve as a result of this final rule. The increased
amount of data collected by the agency, along with the expected
improvement in data accuracy, will enable OSHA to better analyze and
evaluate workplace safety and health hazards. Accordingly, the overall
improvement in the data collected by the agency will allow OSHA to more
accurately and objectively target specific establishments where workers
are at high risk and thereby reduce the overall occurrence of workplace
injuries and illnesses.
With regard to the Chamber's comment on the 2013 RAND Corporation
study, OSHA notes that the study focuses primarily on the effectiveness
of various types of Cal/OSHA inspections (e.g., programed, planned, and
complaint) rather than on issues related to workplace injury and
illness rates. Indeed, similar to how OSHA intends to use the collected
data from this final rule, one of the recommendations included in the
study states, ``Workplaces in high-injury-rate industries that have not
been inspected at all or not for many years should be identified and
deserve some priority in programmed inspections'' (see Inspection
Targeting Issues for the California Department of Industrial Relations
Division of Occupational Safety and Health (John Mendeloff & Seth A.
Seabury) (Docket ID 0099) at 13). Finally, as noted above, Cal/OSHA
itself commented in this rulemaking that injury and illness
surveillance is essential for informed policy decisions and in the
identification, prevention, and abatement of workplace hazards (Docket
ID 0084).
Additionally, the National Propane Gas Association stated that OSHA
``does not provide any details as to how publicly available information
could improve workplace safety'' (Docket ID 0050). In response, as the
agency explained in the NPRM (87 FR 18538), by that point in time, OSHA
had successfully collected reference year 2016 through 2020 Form 300A
data through the OSHA Injury Tracking Application. (Since publication
of the NPRM, OSHA has completed collection of reference year 2021 Form
300A data and has begun collecting 2022 data.) Approximately 300,000
records have been submitted to the agency each year. OSHA has
successfully analyzed these data to identify establishments with
elevated injury and illness rates and has focused both its enforcement
and outreach resources towards these establishments. This experience
demonstrates OSHA's ability to collect, analyze, and use large volumes
of data to interact with establishments where workers are being injured
or becoming ill. However, this same experience has demonstrated the
limits of the 300A data currently collected. As explained in more
detail below, the collection and publication of establishment-specific,
case-specific, injury and illness data from Forms 300 and 301 will
result in significant benefits for the agency.
The International Bottled Water Association (IBWA) commented, from
an enforcement standpoint, ``by the time the data could be evaluated
for use in selecting OSHA's enforcement targets, the data would surely
be stale and provide no useful basis for the agency to initiate
enforcement against employers within the six-month statute of
limitations set forth in the OSH Act.'' This commenter also stated
that, ``[b]ecause the data is insufficient in and of itself as a
targeting tool, and because OSHA would be able to rely on such data
only when it likely no longer reflects current conditions at a
particular worksite, OSHA's enforcement program is better served by
continuing to use 300A summary data to target enforcement resources,''
and then obtaining a copy employer's current Forms 300 and 301 at the
time of an inspection (Docket ID 0076). IBWA added, ``[u]sing the more
detailed 300 and 301 data in the context of an individual inspection,
as the agency has historically done, is a better and more effective use
of this data than OSHA's proposed new plan'' (Docket ID 0076).
In response, for purposes of enforcement inspection and compliance
assistance targeting, the agency intends to use the collected data from
this final rule in two ways. First, OSHA plans to continue to use
administrative plans based on neutral criteria to target individual
establishments with high injury and illness rates based on submitted
Form 300A summary data. Second, OSHA intends to use administrative
plans based on neutral criteria to target individual establishments
based on submitted case-specific, establishment-specific, injury and
illness data from the Forms 300 and 301.
OSHA agrees with IBWA that relying on Form 300A summary data is an
effective source of information for targeting the agency's enforcement
resources. For example, the Site-Specific Targeting (SST) plan is
OSHA's main site-specific programmed inspection initiative for non-
construction workplaces that have 20 or more employees. Currently, the
SST program targets individual establishments based on 300A injury and
illness data that employers are already required to electronically
submit to OSHA under 29 CFR 1904.41. OSHA uses submitted 300A data to
calculate injury and illness rates for individual establishments. The
SST program helps OSHA achieve the goal of ensuring that employers
provide safe and healthful workplaces by directing enforcement
resources to those workplaces with the highest rates of injuries and
illnesses. Moving forward, OSHA intends to continue to use the 300A
data submitted under 1904.41(a)(1) of this final rule to calculate
injury and illness rates and target individual establishments for
inspection under the SST.
OSHA also intends to use collected case-specific, establishment-
specific data from the Forms 300 and 301 to identify individual
establishments for enforcement inspection and compliance assistance
outreach. OSHA believes that reviewing and analyzing specific data from
the Forms 300 and 301 is an effective method for the agency to identify
individual establishments for enforcement inspection or compliance
assistance targeting. For example, OSHA will be able to use 300 and 301
data to identify specific hazards at a given
[[Page 47282]]
establishment. In turn, the agency will be able to more effectively
deploy its enforcement and compliance assistance resources to eliminate
identified hazards and enhance worker safety and health. Of course, and
as discussed elsewhere, OSHA enforcement targeting based on the data
submitted as a result of this final rule will be conducted in
accordance with a neutral-based scheme for identifying workplaces for
closer inspection.
OSHA disagrees with IBWA's comment that the collected injury and
illness data the agency intends to use for its enforcement inspection
and compliance assistance targeting is stale. OSHA acknowledges that
the Forms 300 and 301 data are based on injuries and illnesses that
occurred during the previous calendar year. However, OSHA's current SST
inspection targeting program is also based on Form 300A summary data
from the previous calendar year. Even though the injuries and illnesses
occurred during the previous calendar year, the information is helpful
to OSHA in determining whether a hazard is an ongoing problem at a
specific establishment. For example, although a heat-related illness
may have occurred more than six months before the submission deadline,
it may be reasonable for OSHA to conclude that multiple entries of this
illness on the OSHA forms represent an ongoing hazard at that
establishment. In addition, research indicates that high injury and
illness rates are persistent over time until there is some type of
safety and health intervention at the facility (see Evaluation of
OSHA's Impact on Workplace Injuries and Illnesses in Manufacturing
Using Establishment-Specific Targeting of Interventions: Programmed
Inspections and High Hazard Notification Letters, FINAL REPORT.
Prepared by: ERG, Lexington, MA, July 16, 2004 (Docket ID 0098)). By
identifying an establishment with ongoing hazards, the agency has the
opportunity to use its enforcement and compliance assistance resources
to conduct an intervention and improve workplace safety and health.
b. Beneficial Ways That OSHA Can Use the Data From Forms 300 and 301
OSHA expects to use the collected data in many ways to improve
worker safety and health. Most importantly, having this information
will provide OSHA with a much fuller and more detailed understanding of
the kinds of injuries and illnesses experienced by workers doing
different jobs in a range of industries.
The data available from the 300A forms currently collected by OSHA
show primarily only how many ``injuries'' and ``illnesses'' occur. (The
300A ITA data also provide information on the number of cases of
illnesses involving hearing loss, poisonings, skin disorders, and
respiratory disorders, but even for those, knowing that they occurred
at a particular workplace provides little if any useful information
about how the workers developed them.) The data provide no meaningful
information about the kinds of injuries or illnesses suffered by
workers, the kind of work they do, or the hazards present at their
workplaces. The establishment-wide scope of the 300A data currently
available to OSHA also tends to obscure particular types of injuries
and illnesses that may affect only certain classes of workers at large
establishments. For example, nursing aides at hospitals may be exposed
to very different hazards than those facing other hospital staff who do
not perform the same kind of physical work. Yet, looking at hospital-
wide generalized data will give no hint of the circumstances giving
rise to particular exposures or which workers are affected.
By having access to more precise information about the kinds of
injuries and illnesses affecting workers performing different kinds of
operations at different kinds of workplaces, OSHA can deploy its
resources in ways more calculated to address the specific hazards that
actually exist in specific workplaces. It is obvious that the broad
categories of ``injury'' and ``illness'' provide little useful
information about the specific kinds of hazards that exist at a
workplace. And even a narrower category of illness like ``respiratory
conditions'' does not indicate whether the respiratory condition is
related to a chemical exposure, COVID-19, valley fever
(coccidioidomycosis), hantavirus, Legionnaires' disease
(Legionellosis), or tuberculosis. In contrast, the collection and
analysis of case-specific data from the Forms 300 and 301 would allow
OSHA to determine the prevalence of particular respiratory hazards and
respond appropriately, whether that response is in the form of targeted
enforcement efforts or compliance assistance, general guidance
materials or regulatory solutions, or cooperation with local public
health authorities.
Having access to case-specific data will also allow OSHA to
determine whether workers in particular demographics are being sickened
or injured disproportionately. These may be younger or older workers,
temporary workers, or workers new to a particular assignment. If OSHA
has this information, it will be able to develop strategies to address
the particular demographic factors that lead to these disproportionate
outcomes.
Many of the comments questioning the utility of the data for OSHA
seemed to be premised on the erroneous belief that OSHA's primary use
of the data would be to target enforcement efforts at workplaces with
higher injury and illness rates. But the utility of case-specific data
is much broader. While the data certainly can be used to help target
enforcement, as well as compliance assistance efforts, it is also
valuable to OSHA in that it allows for the types of analyses that can
make all of OSHA's work more effective.
As noted above, OSHA can analyze the data to identify the specific
conditions that are injuring workers as well as the specific classes of
workers who are being injured. OSHA can identify trends in the types of
injuries and illnesses that are occurring and, as noted by the AFL-CIO,
the agency can identify and assess emerging hazards (Docket ID 0061).
Being able to make these identifications allows OSHA to promote safer
workplaces in myriad ways. OSHA can disseminate information about
trends in injuries and illnesses and emerging hazards to the public so
that both workers and employers can take steps to prevent similar
injuries and illnesses at their own facilities. For example, the AFL-
CIO noted that the data could have been utilized in the first years of
the COVID-19 pandemic to identify where effective mitigation measures
were necessary to reduce exposures, and could have been incorporated
into agency guidance, enforceable standards, and enforcement
initiatives, and used to inform employer and union COVID-19 safety
plans (Docket ID 0061). OSHA can also prioritize use of its own limited
resources to have the greatest impact. This may mean providing more
useful compliance assistance or guidance, considering development of
new standards, or revising enforcement programs to focus on workplaces
where OSHA has determined that hazards are more likely to be found. As
noted by the Laborers' Health and Safety Fund of North America, this
also means that OSHA can ``become more data driven in its compliance
and enforcement efforts'' and, ``[i]n being a more online and easily
accessible agency, OSHA can push its consulting efforts and services''
(Docket ID 0080).
One example of how OSHA can use the information in Forms 300 and
301 relates to OSHA's efforts to address indoor and outdoor heat-
related hazards. As climate change has accelerated, heat hazards have
become
[[Page 47283]]
more prevalent, sickening and killing more workers every year (see
https://www.osha.gov/sites/default/files/enforcement/directives/CPL_03-00-024.pdf). OSHA's efforts to address these hazards are multi-pronged,
with ongoing enforcement, compliance assistance, and guidance efforts,
as well as a regulatory component. Without case-specific injury and
illness data, OSHA's understanding of the scope of the problem and its
ability to identify specific operations and types of establishments
where workers are most at risk, are limited, impeding its ability to
intervene at an early enough stage to prevent worker illnesses and
deaths. Currently, OSHA most often learns of these hazards after an
employer reports a worker hospitalization or death (pursuant to 29 CFR
1904.39). The Form 300A listing of the number of illnesses at various
establishments gives no sense of how many of those illnesses are heat-
related. In contrast, Forms 300 and 301 data will allow OSHA to
identify patterns and trends in the occurrence of heat-related illness,
and not only focus its enforcement and compliance assistance resources
appropriately, but also inform OSHA's efforts to develop a permanent
standard addressing heat hazards. These types of longer-term strategic
activities can help make OSHA a more effective agency overall, and in
doing so, make all workers safer.
c. Beneficial Ways That Employers Can Use the Data From Forms 300 and
301
In the preamble to the proposed rule, OSHA asked, ``What are some
ways that employers could use the collected data to improve the safety
and health of their workplaces?'' Multiple commenters provided comments
on employers' use of the collected data to improve the safety and
health of their workplaces, including information about benchmarking
and incentives. (Docket IDs 0030, 0035, 0046, 0061, 0063, 0093). For
example, AIHA commented, ``Benchmarking against other employers is an
important management tool for understanding and improving occupational
safety and health programs'' (Docket ID 0030). Similarly, the AFL-CIO
commented that the collected data would provide employers direct access
to detailed injury and illness information to compare their injury and
illness records and experience with others in the same industry (Docket
ID 0061). NIOSH made similar comments and added that, currently,
employers may compare their injury rates to those of their industry as
reported in the SOII, but because of the large number of injury and
illness records that will be collected under this rulemaking, employers
will be able to compare their injury and illness rates to those of many
more specific groups of establishments and employers. This commenter
also stated, ``Benchmarking safety performance to more comparable
establishments and employers instead of large, anonymous aggregates
would provide more accurate as well as more compelling metrics for
guiding and motivating improvement of safety programs'' (Docket ID
0035).
More generally, the Sheet Metal and Air Conditioning National
Association (SMACNA) commented, ``SMACNA members believe that any
additional data that is collected should be used in tandem with Bureau
of Labor Statistics (BLS) data so our industry can better understand
loss trends and use the information accordingly. SMACNA members provide
a unique service and would like the data to be broken down by the
specific North American Industry Classification System (NACIS) codes.
Such as detailed OSHA incident rate information for NACIS code 238220--
Plumbing, Heating, and Air-Conditioning Contractors.'' (Docket ID
0046).
Additionally, Worksafe commented that access to more electronic
data will allow businesses to compare their safety performance to other
firms and enable competition for improved safety. Also, this commenter
explained that suppliers, contractors, and purchasers of a firm's goods
or services could also consider the information in their business
decisions, such as whether to support a business with a poor safety
record. In addition, regarding the issue of incentives for employers,
this commenter stated, ``When employers know that injury or illness
incidents will be published online, the risk of social stigma will
encourage them to take appropriate precautions and avoid violations''
(Docket ID 0063).
Similarly, Public Citizen commented, ``Bringing performance
information out into the open is an effective form of behavioral
economics impacting employer decision-making. It serves as a strong
incentive for employers to improve their safety records and support
their reputations. It would encourage employers to implement systems,
protocols, education and workplace alterations, resulting in less
worker injuries and illnesses. Employers can also use establishment-
specific, case-specific injury and illness information to compare their
safety record to similar establishments and set benchmarks for
improvement of their own safety and health performance. Negative
publicity has been shown to improve not just the behavior of the
highlighted employer, but also other employers. This general deterrence
effect has been demonstrated by improved compliance with safety
standards by employers after OSHA issued press releases on OSHA
violations uncovered during inspections. The impact was so powerful
that press releases led to 73 percent fewer safety violations
identified during programmed inspections at neighboring enterprises and
a drop in injury reports from the same enterprises.'' (Docket ID 0093).
On the other hand, several commenters stated that employers would
not be able to use the collected data to improve the safety and health
of their workplaces (Docket IDs 0086, 0090, 0094). For example, the
Plastics Industry Association commented, ``The rule will not assist
employers in managing workplace safety as it does not provide
information that is not already available to them and their employees.
When companies publish incident reports internal to all employees, all
personal information is removed, and no medical information is
provided.'' This commenter also stated that companies track different
types of information and that some companies already benchmark with
others (Docket ID 0086).
The Phylmar Regulatory Roundtable OSH Forum also commented that
there is already benchmarking by employers, saying, ``Many employers,
such as PRR members are part of trade organizations and already
participate in formal benchmarking on injury and illness data. PRR
members also review BLS data. Therefore, we believe that OSHA's posting
of establishment specific data will be of NO additional benefit to the
resources already available to employers who actively pursue these
methods.'' (Docket ID 0094).
In addition, a few commenters stated that the data would harm
employers. For example, Angela Rodriguez commented, ``There is a
perceived risk of business competitors using the establishment-level
data to gain an advantage by comparing/contrasting results in a
negative context. E.g., `Company X lets their employees get seriously
injured 3x more than us' '' (Docket ID 0052). Similarly, the National
Retail Federation commented, ``Given President Biden's expressed desire
to lead the ``most pro-union Administration in American history,'' it
is likely that the true motivation of this rulemaking is to weaponize
injury and illness data for labor union leaders' benefit. Labor unions
will likely use this data to gain support for their organizing efforts,
claiming the data proves an
[[Page 47284]]
employer is not protecting its workers.'' (Docket ID 0090). This
commenter also stated that unions may use the data to pressure
employers in negotiations over collective bargaining agreements, and
competitors may use the information for anticompetitive purposes, such
as poaching top workers or hurting the reporting entity's standing in
the community (Docket ID 0090). Likewise, the Phylmar Regulatory
Roundtable OSH forum commented, ``This type of risk profile and data
tool could also be used by insurance companies when determining
policies and rates for a company's worker compensation insurance plan.
In addition, an insurance company could use the risk profile and data
tool to deny issuance of disability, long-term, and other types of
insurance.'' (Docket ID 0094).
In response, OSHA agrees with commenters who stated that employers
will be able to use the published establishment-specific, case-
specific, injury and illness data to improve their workplace safety and
health. Specifically, employers will be able to use the data to compare
case-specific injury and illness data at their establishment with that
of comparable establishments and set safety and health goals
benchmarked to the establishments they consider most comparable. OSHA
also plans to include information regarding establishments' NAICS
codes. As SMACNA suggests, interested parties can use that information
to better understand loss trends, which will help them make
improvements in worker safety and health.
Since employers will have access to a much larger data set, OSHA
disagrees with commenters who suggested that employers already have
access to enough information from trade associations to conduct
benchmarking with injury and illness data. OSHA notes that employers
will be able to access data from the entire range of establishments
covered by the electronic submission requirements in this final rule.
Thus, employers will have the opportunity to compare and benchmark
their injury and illness data with not only the safest establishments
in their industry, but with the safest establishments in all industries
covered by the final rule. In addition, OSHA anticipates that employers
will be able to review the establishment-specific injury and illness
data, identify safer establishments in their industry, and potentially
develop and establish similarly effective safety and health programs at
their own facilities.
OSHA also agrees with commenters who stated that the publication of
establishment-specific, case-specific, injury and illness data will
incentivize employers to minimize the number of occupational injuries
and illnesses at their workplace. For example, the publication of the
data will encourage potential customers or business partners to
evaluate the full range of injury and illness cases at a specific
establishment. In turn, employers will work to improve the occupational
safety and health at their facility, which will result in reduced work-
related injuries and illnesses, thereby enhancing the employer's
standing with potential customers and business partners.
In addition, OSHA disagrees with commenters who stated that the
collection and publication of establishment-specific, case-specific,
injury and illness data will harm employers or that labor unions will
``weaponize'' the data. Again, as noted above, the only purpose for the
collection and publication of injury and illness data required by this
final rule is to improve occupational safety and health and to reduce
injuries and illnesses to workers. At the same time, OSHA considers the
publication of an establishment's injury and illness data, which can be
a valid measure of a company's overall safety culture, to be an
effective incentive for employers to improve occupational safety and
health. As a result, OSHA concludes that the collection and publication
of this data will encourage employers with more hazardous workplaces to
make improvements in safety and health to reduce the number of
occupational injuries and illnesses at their workplaces. Such changes
will also be of benefit to employers, in that workplace illnesses and
injuries impose costs on employers beyond the cost to the injured or
ill employee.
In response to the Phylmar Group's comment that insurance companies
may use the collected data to calculate insurance rates or deny
insurance coverage to companies based on the data, OSHA notes that
insurance companies could engage in these practices using the 300A data
OSHA has been collecting and publishing for several years now if they
wanted to. The Phylmar Group does not identify any reason why the
collection of data from Forms 300 and 301 would make these practices
more likely or widespread, nor does it provide any evidence that
insurance companies are or are not already doing this. Moreover, the
possibility that insurance companies may raise rates or deny insurance
coverage based on an employer's higher-than-average rates of
occupational injuries and illnesses would provide further incentive for
employers to improve workplace safety and health at their
establishments.
Finally, and as discussed below, access to the collected data will
improve the workings of the labor market by providing more complete
information to job seekers. Using data newly accessible under this
final rule, potential employees will be able to examine case-specific
information to help them make more informed decisions about future
employment and, in turn, could encourage employers to make improvements
in workplace safety and health in order to attract potential employees.
In addition, this would help address the problem of information
asymmetry in the labor market, where the businesses with the greatest
problems have the lowest incentive to self-disclose.
Accordingly, after consideration of the rulemaking record, OSHA has
determined that employers will be able to use the collected and
published data to improve workplace safety and health and reduce
occupational injuries and illnesses.
d. Beneficial Ways That Employees Can Use the Data From Forms 300 and
301
In the preamble to the proposed rule, OSHA asked ``What are some
ways that employees could use the collected data to improve the safety
and health of their workplaces?'' 87 FR 18547.
OSHA received many comments on how employees will benefit from
increased access to information from the 300 and 301 forms and on how
employees will use the collected data to improve safety and health at
their workplaces. Several commenters provided information on how
employees will generally be able to use the collected data from Forms
300 and 301 (Docket IDs 0035, 0061, 0063, 0065, 0066, 0078). For
example, AIHA commented, ``Under a Total Worker Health model, injury
data about specific tasks, operations, job titles, and industries could
be used for worker training and education'' (Docket ID 0030).
Similarly, NIOSH commented, ``While the BLS Annual Survey data provide
good metrics for injury risks by industry, they are not ideal for
engaging workers and helping them to understand the risks that they may
face in their own jobs.'' This commenter also explained that the
narrative case-specific data that would be collected under the rule
could provide employees with concrete, real-world, accounts on how
injuries and illnesses occur and instruct them on how they can be
prevented (Docket ID 0035). The AFL-
[[Page 47285]]
CIO submitted similar comments (Docket ID 0061).
The National Nurses Union commented, ``Public posting of this data
would enable workers and their representatives to better understand the
scope of injuries and illnesses in particular work sites and to do so
in a more timely and efficient manner. While workers and their
representatives can access logs at their own workplace, they currently
cannot compare those logs to other workplaces in the industry. For
nurses, patterns of injury and illness could be identified, compliance
with existing standards could be more efficiently examined, and
emerging occupational risks could be better evaluated. When action to
correct workplace safety and health hazards is inefficient or delayed,
workers are unnecessarily exposed to predictable and preventable
hazards. Delays in correcting a workplace hazard pointlessly cost the
lives, limbs, and livelihoods of NNU members and other workers.''
(Docket ID 0064).
Additionally, Worksafe commented that unions and worker advocacy
groups will be able to use case-specific information to seek safety
improvements, ``Currently, these groups can access Form 300 logs only
by requesting them from employers, and the information may be provided
in an inefficient manner such as in PDF files or on paper. As detailed
below, unions and worker advocacy groups have the expertise to analyze
this information to identify necessary workplace fixes. Electronic
publication of more granular data will make it possible for them to
better identify the cause of worker injuries and illnesses, more
efficiently analyze large quantities of information, and appropriately
direct their efforts.'' (Docket ID 0063). Worksafe also provided
several examples of how establishment-specific, case-specific, injury
and illness data has been used by employees and their representatives
to reduce workplace injuries and illnesses. For example, it included a
narrative from a meatpacking labor organization:, ``In 2008, leaders
from the UFCW Tyson meatpacking locals union accessed Form 300 logs
collected from one meatpacking plant for a one-month period. They
analyzed injuries that could be related to ergonomic hazards and then
placed red ``sticky dots'' on a hand-drawn map of a human body,
depicting injury areas. The resulting body map looked as though the
hands were dripping blood because so many red dots were placed in that
area. The leaders were able to confirm that, despite known under-
reporting, a lot of hand-specific injuries occurred amongst their
members. The leaders later presented the body map in a meeting with
Tyson management, where it became a powerful tool. This meeting
included an individual who had been in charge of the company's
ergonomics program some years earlier and who had recently returned as
a top-level manager. Seeing the map, he agreed with the union to start
a series of efforts to revitalize the ergonomics program.'' (Docket ID
0063).
In contrast, some commenters stated that the collection and
publication of certain data from Forms 300 and 301 could potentially
harm employees, including harm to employee privacy and employability.
For example, R. Savage commented, ``I have concerns with organizations
uploading their OSHA Forms 300 and 301 because both forms contain
identifiable personal information. My concern is the privacy of the
injured employee. Government agencies have accidentally released
personal information in the past. Removing the employee's name in OSHA
form 300 and removing sections 1-9 of OSHA form 301 does not guarantee
that the employee will not be identifiable.'' (Docket ID 0018). Also,
an anonymous commenter stated, ``This would seem to make employees feel
like they need to share even more private information to their
employers than they already do'' (Docket ID 0044). However, this last
comment seems to be based on a misunderstanding. This rulemaking does
not amend the type of information that employers must enter on their
recordkeeping forms, nor does it amend the recordkeeping forms used to
track injuries and illnesses. Instead, this rulemaking addresses the
electronic submission to OSHA of certain information on the
recordkeeping forms that employers are already required to keep.
In response to the comments above, OSHA agrees that employees will
be able to use the collected and published data from Forms 300 and 301
to improve workplace safety and health. The collection and subsequent
publication of this data will allow employees to analyze injury and
illness data that is not currently available. The online availability
of such data will allow employees to compare their own workplaces to
other workplaces in their industries. Also, with access to
establishment-specific, case-specific data, employees will be better
able to identify emerging injury and illness trends in their industries
and push for changes in safety and health policies to better protect
workers. In addition, employees and their representatives will be able
to use the large amount of newly available case-specific information to
develop effective education and training programs to identify and
reduce workplace hazards.
With regard to the comments expressing concern about employee
privacy, as discussed elsewhere, OSHA is confident that the agency will
be able to protect information that could reasonably be expected to
identify individuals directly. The combination of not requiring
employers to submit certain information, and the improved technology
used to identify and remove personal information in the collected data,
greatly reduces the risk that reasonably identifiable employee
information will be disclosed to the public. Again, OSHA believes the
significant benefits to improved workplace safety and health outweigh
the slight risk of information that could reasonably be expected to
identify individuals directly being disclosed to the public.
Other commenters stated that, currently, employees and their
representatives only have online access to general data from the Form
300A or aggregate data from the BLS SOII (Docket IDs 0063, 0078).
Worksafe commented, ``electronic publication of case-specific
information on injuries, illnesses, and even fatalities will allow
firms' own employees to access timely information that they can use to
improve their own workplaces'' (Docket ID 0063). Also, Unidos US,
Farmworker Justice, and Texas RioGrande Legal Aid commented that, using
currently available BLS data, it is impossible to know how many
farmworkers specifically suffer from heat-related illnesses. These
commenters explained that with access to case-specific Forms 300 and
301 data, employees and their representatives will be able to search
information online to identify specific workplace hazards and direct
their resources to those hazards (Docket ID 0078).
On the other hand, some commenters stated that employees already
have access to the information they need. The National Propane Gas
Association commented, ``Potential employees or the general public can
assess an entire industry through the Bureau of Labor Statistics data
that OSHA referred to in the proposal'' (Docket ID 0050).
In response, OSHA disagrees with the National Propane Gas
Association that potential employees only need access the aggregate
industry information though the SOII. As discussed above, aggregate
data from the SOII, as well as the general summary data from the Form
300A, do not provide employees with access to case-specific information
[[Page 47286]]
at individual establishments. As explained by other commenters, online
access to the establishment-specific, case-specific, injury and illness
data will allow employees to search and identify other establishments
and occupations in their industries and compare the injury and illness
data at their establishments with the safest workplaces. Also, both
current and potential employees will have better access to health and
safety information about specific occupations and workplaces and will
be able to better identify and understand the specific risks they face
in their own jobs. Importantly, and as noted by commenters, access to
Forms 300 and 301 data will enable employees to track specific injuries
and illnesses, such as heat-related illnesses, throughout their
industries.
Some commenters stated that, even though employees have a right of
access to the OSHA recordkeeping forms under 29 CFR 1904.35, some
workers may fear retaliation from their employer if they request access
to information from the 300 and 301 forms at their workplace (e.g.,
Docket IDs 0049, 0061, 0063, 0089, 0093). National COSH commented,
``Making the case specific data publicly available as proposed in the
standard will also increase worker safety for the employees in the
establishments with 100 or more employees. Workers are too often scared
of retaliation if they request this information, even though employers
are required to provide access to the full 300 logs to employees upon
request. This information will allow employees in these establishments
access to this data without fear of retribution and it will help them
better identify patterns of injuries and hazards and to take actions to
have the hazards abated.'' (Docket ID 0048). NELP submitted a similar
comment (Docket ID 0049). Additionally, Centro del Derecho del Migrante
commented, ``Public access to these data will also improve worker
safety by allowing workers and their advocates to better identify
patterns of injuries and hazards in workplaces and across industries .
. . Publishing this information will allow employees in these
establishments access to this data without fear of retribution, and to
demand abatement of hazards in their own workplaces and industries.''
(Docket ID 0089).
There were also comments stating that, despite the access
requirements in 29 CFR 1904.35, many employers either deny or delay
access to case-specific information to employees and their
representatives. The United Food and Commercial Workers Union (UFCW)
commented, ``The public access provisions of this rule allow workers to
get important information through the OSHA website, rather than
navigate these hurdles with employers'' (Docket ID 0066). UCFW added
that it has had success in monitoring injury and illness data and
working with employers to apply the data to injury and illness
prevention efforts, but noted that workers in non-union workplaces do
not have the same ability to access the data, and that this rule would
help ``bridge that gap'' by providing all workers with access (Docket
ID 0066). Another commenter explained that, even when injury and
illness information is provided to employees, the information is not in
a usable format. The Strategic Organizing Center commented that, even
when workers request access to part 1904 information, ``they do not
have any specific right to receive them in a way which achieves the
goal of facilitating the analysis. This is especially important for
workers at the larger employers covered by the proposed reporting
requirement for the 300/301 data'' (Docket ID 0079).
In response, and as discussed above, OSHA's recordkeeping
regulation at 29 CFR 1904.35 already provides employees and their
representatives with access to the three OSHA recordkeeping forms kept
by their employers, with some limitations. Under Sec. 1904.35, when an
employee, former employee, or employee representative requests access
to certain information on Forms 300 or 301, the employer must provide
the requester with one free copy of the information by the end of the
next business day. Any delay or obstruction by an employer in providing
the required information to employees or their representatives would be
a violation of the recordkeeping regulation. And, retaliation against
an employee for requesting this information would violate Section 11(c)
of the OSH Act.
OSHA agrees with commenters who stated that making establishment-
specific, case-specific, injury and illness information available
online will enhance worker safety and health, particularly where
employees are reluctant to request access to such information. If
workers fear possible retaliation from their employer, employees will
easily be able to access the case-specific data for their own workplace
online, thus avoiding the need to request the information from their
employer. This uninhibited access will allow employees to better
identify and address hazards within their own workplaces.
In addition, since certain case-specific injury and illness data
will be posted online, employees will easily be able to search the
collected information to identify specific hazards at their workplaces.
Online posting also eliminates the problem noted by some commenters
that, in some cases, when employees request injury and illness
information from their employer, the information is provided on paper
or in a format that is not searchable. Also, the online posting of data
allows employees to conduct searches at any time to identify injury and
illness trends at their workplaces.
Public Citizen commented, ``[P]otential employees will benefit from
the availability of injury and illness data from establishments as they
make informed decisions about employment. Workers can compare injury
rates between potential employers and choose to work for the safer
employer. This puts power in the hands of labor, incentivizing
employers to improve safety given the competition for workers.''
(Docket ID 0093).
On the other hand, the Phylmar Regulatory Roundtable OSH Forum
expressed concern that the Form 300 and 301 data could be used to build
worker profiles that result in hiring decisions based on an employee's
injury and illness history and a high number of days away from work
(Docket ID 0094). Similarly, Brian Evans commented, ``Since this data
is public record, future employers would have access to this
information and could potentially discriminated against future hires
based on injured parties being listed in a work place related injury.
It could also lead to retaliation if the employee who was injured on
the job choses to stay employed in their current role. Leadership,
management, administration could view them as unsafe employees and
limit their growth potential at their organization, or seek ways to
terminate their employment due to the filing of a work place injury.''
(Docket ID 0080).
In response, OSHA agrees with the comment from Public Citizen that
the published Form 300 and 301 data will assist potential employees in
researching establishments where the risk to workers' safety and health
is low. At this time, potential employees only have access to the
limited injury and illness data that is currently available to the
public as discussed above. Access to Form 300 and 301 data not only
provides job seekers with an opportunity to review information about
individual workplaces, but also allows them to analyze the injury and
illness history of specific job titles within a
[[Page 47287]]
given industry or workplace. Potential employees can also identify
trends among and between occupations, and at specific sites within one
workplace. Also, as noted by Public Citizen, access to this information
by potential employees should provide an incentive to employers to
improve workplace safety and health. Specifically, the publication of
Form 300 and 301 data will encourage employers with more hazardous
workplaces in a given industry to make improvements in workplace safety
and health to prevent injuries and illnesses from occurring, because
potential employees, especially the ones whose skills are more in
demand, might be reluctant to work at more hazardous establishments.
OSHA disagrees that employers will use the published data from this
final rule to discriminate against current or potential employees. With
regard to potential employees, and as discussed in more detail in
Sections III.B.6 and III.D of this Summary and Explanation, because
OSHA is not requiring the electronic submission of information that
could reasonably be expected to identify individuals directly (e.g.,
name, contact information), and because the agency is using improved
technology to identify and redact such information before publication,
it is extremely unlikely that employers will be able to use the
published data to identify specific individuals and determine their
injury and illness history. As for current employees, OSHA notes that
employers are already required under part 1904 to include certain
potentially identifiable information about an employee when they
sustain a work-related injury or illness (e.g., employers must enter
the injured or ill employee's name on the OSHA 300 log). As a result,
the publication of case-specific de-identified injury and illness data
under this final rule will have no impact on an employer's ability to
identify their own injured or ill employees.
After consideration of these comments, OSHA has determined that
employees, potential employees, and employee representatives will be
able to use the collected data from Forms 300 and 301 to improve
workplace safety and health, including through better access to the
data in usable formats and without fear of retaliation. OSHA notes the
many examples in the rulemaking record provided by commenters on not
only how employees and their representatives currently use
establishment-specific, case-specific, injury and illness data, but
also on how they will be able to use the greater access to such
information provided by this final rule to reduce occupational injuries
and illnesses.
e. Beneficial Ways That Federal and State Agencies Can Use the Data
From Forms 300 and 301
OSHA received a number of comments in response to the question in
the NPRM about the ways in which Federal (besides Federal OSHA, which
is addressed above) and State agencies will be able to use the data
collected under this final rule to improve workplace safety and health.
Multiple commenters, including the National Employment Law Project, the
Centro de los Derechos del Migrante, and Richard Rabin, noted generally
that the centralized collection of and access to case-specific data
will benefit the worker safety and health efforts of NIOSH, State
agencies, and the public health community (e.g., Docket IDs 0040, 0045,
0048, 0049, 0051, 0064, 0084, 0089). AIHA stated that ``With the
limited resources available to most federal and state worker health and
safety programs, targeted programs will provide the most benefit for
workers and companies. These data will provide information so that
priorities can be set and outcome trends monitored'' (Docket ID 0030).
There were also comments from Federal entities about their intended
uses of the data. For example, NIOSH commented, ``As potential end
users of the data, NIOSH supports the improvements that are being
proposed by OSHA. NIOSH believes that the increased coverage of
employers within identified industries and the collection of the
additional detailed information that is not currently electronically
captured will offer greater potential for detailed and comprehensive
data analyses compared with the current data. NIOSH uses occupational
injury data to monitor injury trends, identify emerging areas of
concern, and propose research intervention strategies and programs.
Current OSHA data reflect a smaller proportion of select industries and
offer limited details. This new rule would offer greater coverage of
select industries and more detailed data, which would increase the
value and utility of these occupational injury data to NIOSH.'' (Docket
ID 0035, Attachment 2; see also Docket ID 0089).
In addition, NIOSH's comment listed more specific purposes for
which it can use the collected data, including:
Using the narrative data from Forms 300 and 301 for
learning the particular ways in which injuries occur in specific work
tasks and industries (citing work NIOSH has done with narrative data
from individual workers' compensation claims in Ohio).
Using the coded OSHA Log case data with narratives as a
very large training data set that could be used to improve the
autocoding of workers' compensation claims. As NIOSH stated,
``[a]utocoding workers' compensation claim narratives is critical to
producing injury rate statistics that can guide prevention efforts by
identifying high and increasing rates of specific types of injuries in
specific industries and employers.''
Improving the effectiveness and efficiency of workplace
inspections through the evaluation of more complete, detailed data on
certain types of injuries at specific workplaces. As an example, NIOSH
noted a series of studies supported by NIOSH where amputation cases at
specific workplaces were identified based on hospital records and
workers' compensation claims; the information was then provided to
Michigan OSHA, which used it to target inspections.
Linking workers' compensation data to OSHA logs in order
to provide a more complete set of information than either data set
provides separately. This effort has the potential to improve
identification and prevention of injuries, especially among temporary
employment agency workers, who constitute a vulnerable population of
workers with a disproportionate burden of workplace injuries.
Collaborating with National Occupational Research Agenda
Councils and OSHA to ``improve dissemination and use of the published
data to improve identification, mitigation, and prevention of workplace
injuries and illnesses'' (Docket ID 0035, Attachment 2).
National COSH agreed with NIOSH, noting that making these data
publicly available will assure that researchers and other agencies,
like NIOSH, can use the data for surveillance, evaluation, and research
purposes (Docket ID 0048).
In addition to the benefits of the data at the Federal level,
multiple commenters addressed the value of the final rule's data
collections to the States and to State occupational safety and health
efforts. In the preamble to the 2019 final rule, OSHA acknowledged
``that systems to collect this volume of data would be costly for
States to implement. Centralized collection might be more efficient and
cost-effective than state-by-state collection . . .'' At that time,
OSHA stated that it had ``doubts about the usefulness of the data and
concerns about the costs of collection,'' but reiterated that States
were nonetheless ``empowered to do as
[[Page 47288]]
OSHA ha[d] and weigh the substantial costs of collection against the
likely utility of the data'' (84 FR 394). In response to the NPRM in
the current rulemaking, many commenters made it clear that State
efforts to improve workplace safety and health will benefit from the
data that is made available by this rule, and that a national
collection system is a far more efficient means of achieving these
benefits than individual State efforts. National COSH noted similar
benefits at the State level as at the Federal level, stating that State
and community public health agencies will be able to use the data to
better understand the hazards in high-risk establishments and then
target those establishments for assistance and information regarding
best practices (Docket ID 0048). Likewise, the Council of State and
Territorial Epidemiologists (CSTE) commented, ``Access to these data
would also facilitate public health agency efforts to reduce work-
related injuries and illnesses in the States and significantly increase
the potential for more timely identification of emerging hazards.
Electronic collection of existing records is in line with 21st century
advances in health data collection made possible by advances in
information technology that involve centralized collection, analysis,
and dissemination of existing data from multiple entities. These
include, for example, collection at the State level of data on all
hospitalizations, all emergency room visits, and all ambulance runs,
and in over 20 States, data on all public and private insurance claims
(excluding workers' compensation claim data). . . . Making this
information broadly available is consistent with the growing
recognition, predominant in the patient safety field, that
transparency--sharing of information, including information about
hazards--is a critical aspect of safety culture.'' (Docket ID 0040).
In addition, CSTE provided specific examples of ways in which the
electronic reporting of case-level workplace injury and illness data
can enhance State health department and others' efforts to reduce work-
related injuries and illnesses and hazards in States and communities.
These examples included:
Identification of emerging problems: ``The ability to
search file level data not only in the establishment where the index
case is/was employed but also other establishments in the industry to
identify similar cases has the potential to facilitate timely
identification of emerging hazards'' that are ``both new and newly
recognized.'' CSTE discussed an example from Michigan, where a State
agency identified several deaths associated with bathtub refinishing,
raising new concerns about the hazards of chemical strippers used in
this process. Subsequent review of OSHA IMIS data identified 13 deaths
associated with bathtub refinishing in a 12-year period.\6\ These
findings from the State and Federal databases together led to the
development of educational information about the hazards associated
with tub refinishing and approaches to reducing risks; this material
was disseminated nationwide to companies and workers in the industry.
---------------------------------------------------------------------------
\6\ The OSHA Integrated Management Information System (IMIS) was
designed in 1991 as an information resource for in-house use by OSHA
staff and management, and by State agencies which carry out
federally approved OSHA programs. It was replaced by the OSHA
Information System (OIS) as the primary repository of OSHA's data,
starting in 2012.
---------------------------------------------------------------------------
Targeting establishments for preventive outreach in our
communities: ``Public health investigations of work-related incidents
result not only in prevention recommendations to those involved in the
incident, but in case studies which allow us to then take lessons
learned and disseminate these lessons broadly to other stakeholders.
The availability of information on high-risk establishments will allow
for more targeted and efficient information dissemination. The ability
to identify lower risk establishments may also provide new
opportunities to learn from employers who are implementing best
practices--and potentially to help identify under-reporters. The
availability of establishment specific information offers the
opportunity to incorporate occupational health concerns in community
health planning, which is increasingly providing the basis for setting
community health and prevention priorities.''
Improvement of data quality and use of the data:
``Observations from interviews with OSHA record-keepers in Washington
State suggest that incomplete OSHA records arise in part from lack of
knowledge or confusion on the part of some employers about how to
accurately and consistently record OSHA reportable cases and from poor
employer prioritization of this task. . . . Electronic data collection
and the subsequent public release of the data are means to improve data
quality, knowledge, and compliance with OSHA recordkeeping
requirements. Electronic collection of data offers the opportunity to
provide employers with electronic tools (e.g., prompts, definitions,
consistency edits, and industry-specific drop-down lists) to improve
the quality of the data reported. Standardized feedback to
establishments and potential reports of establishment-specific data
would promote the use of the data by employers and workers to set
health and safety priorities and monitor progress in reducing workplace
risks.''
Improvements in Medical Care: ``This record keeping rule,
by facilitating the diagnosis of work-related conditions, will allow
for better diagnosis and management of workplace illnesses by health
care providers in the community, thereby contributing to a reduction in
morbidity, absenteeism, and health care costs.'' CSTE described an
example from Massachusetts, which has a sharps injury prevention
control program. This program supplements OSHA's bloodborne pathogens
standard by requiring hospitals to report select data from the OSHA-
required log of sharps injuries annually to the Massachusetts
Department of Public Health (MDPH). In recent years, data from all
hospitals, which range in size from less than 150 to over 20,000
employees, have been submitted through a secure electronic
transmission. Annual hospital-specific data and statewide reports
prepared by MDPH provide information on patterns of sharps injuries and
sharps injury rates for use by hospitals and hospital workers as well
as MDPH. As CSTE stated, this experience in Massachusetts ``indicates
the utility of electronic reporting of person level occupational injury
data for targeting prevention efforts at multiple levels'' (Docket ID
0040).
The International Brotherhood of Teamsters noted that they agreed
with these comments from CSTE (Docket ID 0083).
Similarly, the Strategic Organizing Center commented that States
can use the collected data to compare injury and illness rates at
specific establishments to the rates for that industry in general. The
SOC also emphasized that ``OSHA's collection and distribution of . . .
key metrics will finally provide a measure of transparency to workers,
OSHA and its state partner agencies, the media and the public about the
nature of the serious injuries afflicting workers at large employers in
hazardous industries across the nation'' (Docket ID 0079).
OSHA also received comments from the States themselves (e.g.,
Docket IDs 0045, 0069, 0084). One comment that was strongly supportive
of the rule came from the Seventeen AGs. These State officials
represented nine States with OSHA-approved State Plans that cover both
private and State and local
[[Page 47289]]
government workers (California, Hawaii, Maryland, Michigan, Minnesota,
Nevada, New Mexico, Oregon, and Vermont), four States that have OSHA-
approved State Plans that cover State and local government workers only
(Connecticut, Illinois, New Jersey, and New York) and four States
without a State Plan (Delaware, the District of Columbia,
Massachusetts, Rhode Island). Their comment cited increased
transparency regarding workplace safety, as well as benefits to key
interested parties (including employees, consumers, employers,
researchers, and the States themselves) (Docket ID 0045).
The Seventeen AGs commented that States planned to use the
collected data for multiple specific purposes, including to: improve
targeting and outreach (New Jersey); develop the next strategic
inspection plan (Connecticut); ease administrative burden (Hawaii);
target recordkeeping inaccuracies (Illinois); prioritize and increase
efficiency of enforcement efforts (Maryland); improve the ability of a
State advisory board on occupational safety and health to develop
effective workplace injury prevention programming (Massachusetts);
discern patterns in the frequency and severity of injuries (Minnesota);
and inform future enforcement plans (Nevada). With the data that will
become available to them, States will also be able to institute or
improve targeted training and outreach programs, identify and
investigate incidents in particular categories of concern (such as
those that lead to ongoing disability and require accommodations under
the Americans with Disabilities Act), compare the data to other data
sources (such as workers' compensation data), identify workplace injury
and illness underreporting, improve their ability to consider
companies' workplace safety and health records when making contracting
decisions, and increase the specific workplace injury and illness
information available to State health agencies (Docket ID 0045). The
AFL-CIO touted the prevention index created by Washington State, which
operates both an OSHA State plan and the State workers' compensation
program. The State ``utilizes the detailed injury and illness data
collected through its workers' compensation system, similar to the data
contained in the Form 300 and Form 301, to develop a prevention index.
The index identifies the most common and costly injuries and illnesses
and the industry sectors with the greatest potential for prevention''
(Docket ID OSHA-2013-0023-2088, Attachment 1).
In addition, the Seventeen AGs noted, ``[T]hese benefits will only
accrue if OSHA collects and publishes such data. Not all states have
the resources to create and manage their own databases, and, in any
event, it is costlier and more inefficient for individual states to
create separate databases. Data from a single jurisdiction is also much
less likely to reveal patterns in workplace health and safety. Uniform
national data collection efforts, by contrast, will also allow states
to benchmark their performance--overall or in specific industries--
against peer states in ways that might encourage or promote reforms,
interventions, or legislation to address workplace safety issues.
Moreover, even if the [s]tates are not able to engage in targeted
enforcement now, it is nonetheless important to begin collecting and
publishing more detailed data now. . . . And when the [s]tates
implement targeting in the future, having a larger database of historic
data on which to `train' targeting algorithms will ensure that these
algorithms are more accurate.''(Docket ID 0045). The International
Brotherhood of Teamsters commented with support for ``the benefits
touted by the letter [from the Seventeen AGs] on the need for public
reporting of detailed injury and illness information to the [s]tates'
enforcement and regulatory agencies'' (Docket ID 0083).
The California Department of Industrial Relations (DIR), Division
of Occupational Safety and Health (Cal/OSHA), and the Connecticut
Council on Occupational Safety and Health (ConnectiCOSH) also provided
separate comments in support of the proposed rule, citing benefits to
worker safety (Docket IDs 0069, 0084). Cal/OSHA stated that the
availability of the additional data would aid in ``identifying patterns
that are currently masked by the aggregation of injury/illness data by
industry in existing data sources.'' Furthermore: ``[D]etailed case
level data could be used when proposing new prevention-oriented
regulations to California's Occupational Safety & Health Standards
Board (OSHSB), when responding to petitions to OSHSB for new or amended
standards, and in the creation of specific compliance assistance
materials oriented to existing or emerging workplace safety problems.''
Cal/OSHA also emphasized that centralized data collection by OSHA ``is
the most efficient and cost-effective way to compile and utilize the
data for prevention purposes,'' and the cost to States of ``setting up
parallel systems . . . would be significant'' (Docket ID 0084; see also
Docket ID OSHA-2013-0023-2088, Attachment 1).
After consideration of these comments and others in the record,
OSHA has determined that the expected benefits to Federal and State
agencies overcome any doubts the agency expressed in the 2019 final
rule related to the usefulness of the data and the costs of collection.
OSHA has determined that Federal and State agencies will be able to use
the collected data to improve workplace safety and health. The agency
especially notes the benefits for States, which may not have the
resources to create and manage their own data collections; the
inefficiency of multiple State-specific databases versus a single
national database; and the advantages of a uniform national data
collection requirement. OSHA finds particularly convincing the examples
of State and Federal entities' past and planned future uses of the data
to monitor, target, and prevent occupational injuries and illnesses.
f. Beneficial Ways That Researchers Can Use the Data From Forms 300 and
301
Multiple commenters provided examples of ways that researchers
could use the collected data to improve workplace safety and health.
Most generally, AIHA commented, ``Researchers require a stable data
source to conduct studies that depend on unbiased, complete data sets.
By collecting and making the data available to researchers, stratified
analyses with sufficient power can be conducted that will make the
results more generalizable to specific workers and industries.''
(Docket ID 0030). Similarly, Centro del Derecho del Migrante commented,
``Public access to these data will better allow organizations like CDM
to identify patterns of injuries and hazardous conditions in workplaces
and advance worker safety and health'' (Docket ID 0089).
Numerous commenters pointed out the limitations of currently
available data from BLS, and the need for more data to produce
statistically significant, robust results for more detailed categories
of injuries, establishments, and employers. NIOSH commented that the
release of summary injury data for all establishments of 20 or more
employees in certain industries and of individual injury case data for
injuries in establishments of 100 or more employees in certain
industries would produce more accurate and statistically meaningful
data than the BLS Annual Survey can provide ``because the number of
included injury records would be much greater than that included in the
BLS sample of
[[Page 47290]]
establishments of this size in these industries.'' NIOSH stated that
``the proposed data collection in higher risk industries would enable
more detailed and accurate statistics on the state as well as the
national level.'' In addition, the new data collection OSHA plans to
make available ``would provide establishment-specific, case-specific
injury and illness data for analyses that are not currently possible.''
NIOSH also stated that the release of the data collected by OSHA should
make it possible to produce meaningful statistics and perform more in-
depth analysis by combining records across several years by industry,
employer, or establishment, which is not possible with the BLS SOII
data that is currently available (Docket ID 0035). The International
Brotherhood of Teamsters concurred with this comment (Docket ID 0083).
The National Employment Law Project (NELP) commented on the need
for expanded, more detailed data: ``NELP recently used the currently
available establishment-level Injury Tracking Application data to
conduct state-specific analyses on injury and illness rates in the
warehousing sector. However, with access only to electronically
submitted data from Form 300A and not from Forms 300 and 301, we were
limited by an inability to disaggregate by the types of serious
injuries and serious illnesses. In addition, having access to case-
specific injury and illness data as reported in 300 and 301 forms would
have allowed NELP to identify specific injury and illness trends, and
correlate these with job titles, in order to more directly address and
prevent hazards that put workers at risk.'' (Docket ID 0049).
The AFL-CIO commented that access to more detailed data would
provide researchers with an invaluable source of information on
workplace safety and health hazards (Docket ID 0061). The AFL-CIO also
pointed to the limitations for researchers of the BLS SOII data:
``Studies have shown that the SOII data have significant limitations
and that consistent and representative mandatory reporting would
provide a more accurate data source for research on causes of injuries
and illnesses and prevention methods to track improvements and emerging
issues.'' (Docket ID 0061).
Commenters also provided examples of how researchers have used data
to improve workplace safety and health. For example, The Strategic
Organizing Center described its analysis of ITA data to prepare reports
on occupational injury rates among warehouse workers. It stated: ``This
example, we believe, completely vindicates OSHA's original intent in
establishing the Injury Tracking Application, including the public
release of the data received from employers. Absent the easy
availability of these data, it would be difficult if not impossible for
those outside the management structure of major employers to understand
the basic details of the worker safety and health situation at these
companies, much less to force employers with deficient performance to
change their practices. It is vital that employers who attempt to
misrepresent the failures of their worker safety and health systems
understand that they are subject to the independent oversight and
review that can only be offered by broadly-available distribution of
key metrics, such as the numbers, rates and characteristics of worker
injuries and illnesses.'' (Docket ID 0079).
The Strategic Organizing Center also pointed to injury research in
the hotel industry as an example of the value of OSHA's providing the
300 and 301 data for further analysis: ``In the mid-2000's, as the
hotel industry was rapidly introducing heavier mattresses and increased
workloads for housekeepers, the hotel union UNITE HERE undertook an
analysis of the 300 logs and employee personnel demographic data to
determine injury trends by injury type, job title, gender and race/
ethnicity. We published [a] study by Buchanan et al in 2010, the value
of which OSHA recognized in the preamble to the 2016 Final Injury
Tracking Rule (81 FR 29685, Col. 3). It revealed that the rates of
different injury types varied greatly across the study population of
55,327 person-years over a 3-year period at 50 hotels in five of the
largest US hotel chains. We found that MSD's were highest among
housekeepers, and acute traumatic injuries highest among cooks/kitchen
workers, and injury rates higher among women than men. Much of the
various increased risks was driven by the exceptionally high risks
endured by hotel housekeepers (7.9 injuries/100 person-years).''
(Docket ID 0079).
The Communication Workers of America (CWA) commented on the value
of access to large datasets of workplace injury and illness
information. It gave examples of data analyses it has conducted to
address safety and health issues:
CWA has analyzed large quantities of OSHA Log data for
certain regions from some large telecommunications employers. It was
able to compare aggregate worksite data from two different regions for
the same employer for the same year. Its comparison of aggregate OSHA
300 Log data from two different regions for the same employer shows a
large discrepancy in work-related COVID cases recorded on the OSHA 300
Logs and also demonstrates the value of the Cal/OSHA COVID standard's
reporting requirements given the increased reporting for sites in
California.
Recent and past analyses by a telecommunications employer
of its OSHA Log data for work locations in NY has shown the toll of
injuries and lost work days related to manhole cover lifting. The
employer, the union and union members worked together to conduct
ergonomic assessments using biometric sensors to evaluate the strain of
manhole cover lifting using different designs of manhole cover lifters.
The biometric assessments combined with worker feedback led to design
of a new, vehicle mounted manhole lifting device. The employer will
likely use the newly-approved manhole cover lifters in other areas of
the country where it operates. Aggregate OSHA 300 Log data will aid in
evaluating the effectiveness of this intervention in reducing and
preventing manhole cover lifting injuries.
An analysis by one employer of OSHA recordable injury/
illness data for the previous year from all worksites on Long Island,
NY revealed there had been over 11,000 lost work days due to extension
ladder accidents. After training, the number of extension ladder
accidents in those work locations dropped significantly, to almost
none. This initiative looked at aggregate data from one employer's
multiple worksites. Establishment-specific data, on its own, would not
have revealed the extent of the problem and the need for interventions,
nor would it have incentivized the employer to take action and provide
training.
Analyses of OSHA 300 Log data has led to multiple safety
improvements in CWA-represented manufacturing facilities with active
health and safety committees. At locations where CWA members build
engines and engine parts, OSHA 300 Log data analyses has resulted in
ergonomic assessments and training, the provision of better PPE, and
improved safety protocols.
(Docket ID 0092)
After consideration of these comments, OSHA has determined that
researchers will be able to use the collected data to improve workplace
safety and health. OSHA finds particularly convincing the examples of
past and planned future uses of the data by researchers to monitor,
target, and prevent occupational injuries and illnesses.
[[Page 47291]]
g. Beneficial Ways That Workplace Safety Consultants Can Use the Data
From Forms 300 and 301
In the proposed rule, OSHA asked, ``What are some ways that
workplace safety consultants could use the collected data to improve
workplace safety and health?'' (87 FR 18547). OSHA received several
comments about ways that workplace safety consultants could use the
collected data to improve workplace safety and health (Docket IDs 0026,
0030, 0035). Most generally, AIHA commented that the value that
workplace safety consultants bring to a company is directly related to
the availability of high-quality data, and ``[c]ompanies that engage
consultants depend on the consultant to be fully informed of the
inherent risks of specific operations, tasks, and industries so that
the recommendations for improvement and correction are based on
evidence'' (Docket ID 0030). Justin Hicks commented that the collected
data would be useful ``[a]s a young safety professional . . . when
educating my employer on safety culture'' (Docket ID 0026).
Additionally, NIOSH identified a number of ways in which workplace
safety consultants might use this data, including ``identifying and
disseminating useful facts about the comparative safety performance of
establishments, employers, and employer groups,'' and ``analy[zing]
patterns of injury causation at their client workplaces and appropriate
comparisons of workplaces'' (Docket ID 0035, Attachment 2). NIOSH also
noted that consultants' work with the collected data ``promises to
assist other stakeholders in identifying patterns of injuries and
targets for prevention and to complement the research disseminated by
state and federal agencies'' (Docket ID 0035, Attachment 2).
OSHA agrees with these commenters that the collected data will help
workplace safety consultants to be fully informed of the risks of
specific operations, tasks, and industries and, in turn, will give
consultants the information necessary to advise their employers on
safety and health practices. Accordingly, OSHA has determined that
workplace safety consultants and other workplace safety professionals
will be able to use the collected data to improve workplace safety and
health.
h. Beneficial Ways That the Public Can Use the Data From Forms 300 and
301
In the proposed rule, OSHA asked, ``What are some ways that members
of the public and other stakeholders, such as job-seekers, could use
the collected data to improve workplace safety and health?'' (87 FR
18547). Several commenters provided insights about how the general
public, the media, and prospective employees will be able to use the
collected data to improve workplace safety and health. With respect to
the general public, Hunter Cisiewski commented that the public
availability of data would ``allow the public to hold companies
accountable for creating unsafe workplaces'' and ``make informed
decisions about . . . what industries they should support,'' as well as
``incentivize employers to create safe working conditions'' (Docket ID
0024). The Seventeen AGs commented that the availability of data would
benefit consumers, ``who can use information about employer safety to
inform their purchasing and contracting decisions'' (Docket ID 0045).
In addition, Worksafe commented that the press and advocacy
organizations could ``monitor and report on the data'' (Docket ID
0063).
Commenters also addressed how job seekers could use the collected
data to improve workplace safety and health (Docket IDs 0020, 0024,
0030, 0063, 0082). For example, Hunter Cisiewski commented that the
data would allow prospective employees ``to make informed decisions
about where they should work'' (Docket ID 0024). AIHA commented that
access to the collected data would allow job seekers to ``inquire about
specific health and safety practices or culture during interviews,''
help them to be more informed, and encourage prospective employers to
be more transparent (Docket ID 0030). Similarly, Worksafe commented
that the availability of injury and illness data would allow job
seekers ``to better assess the types, severity, and frequency of
injuries and illnesses in a particular workplace'' and make more
informed decisions regarding their employment'' (Docket ID 0063).
Additionally, the Seventeen AGs commented that public access to
detailed injury and illness data would ``empower'' workers who are most
impacted by occupational hazards, i.e., low-income workers and workers
belonging to racial and ethnic minority groups, ``to make informed
decisions regarding where they choose to work'' (Docket ID 0045).
On the other hand, multiple commenters asserted that the data would
not be useful to the public. The overarching concern of these
commenters was that the public would lack the context necessary for the
data to provide an accurate picture of an establishment's safety and
health practices (Docket IDs 0021, 0043, 0050, 0052, 0053, 0062, 0071,
0075, 0086, 0090). For example, the National Propane Gas Association
commented that the collected data would ``mislead'' the public because
it is ``only a fraction of information regarding a workplace'' and, in
order to provide accurate information about worker safety, OSHA would
also need to publish information such as ``the number of uninjured or
healthy individuals working for the establishment; . . . the safety
procedures or policies implemented, days/weeks/months/years without
injuries or illnesses; . . . a comparison of the frequency or average
for the industry versus the specific establishment; . . . actions by
the employee that caused or contributed to the injury or illness; . . .
[and] the corrective actions by the establishment'' (Docket ID 0050).
Similarly, Angela Rodriguez commented that injury and illness data may
be misleading ``without the explanation of contributing root causes''
(Docket ID 0052). Likewise, Representatives Virginia Foxx (R-North
Carolina) and Fred Keller (R-Pennsylvania) commented that ``an
employer's injury and illness logs say nothing meaningful about an
employer's commitment to safety and compliance with OSHA standards,''
and ``[m]any factors outside an employer's control may lead to
workplace injuries and illnesses'' (Docket ID 0062). And, the Plastics
Industry Association commented that when viewing an employer's injury
and illness data in isolation, ``[t]here is insufficient context to
draw conclusions about the employer's safety program or practices''
(Docket ID 0086).
Commenters pointed to a number of reasons for their concern about
misinterpretation or misleading data. Some commenters expressed concern
that the collected data may be misleading specifically because it may
include injuries or illnesses that are not the employer's fault (Docket
IDs 0021, 0043, 0052, 0075, 0086, 0090). For example, the Motor and
Equipment Manufacturers Association and the Flexible Packaging
Association commented that data may be misinterpreted because many
workplace injuries occur due to circumstances entirely outside of an
employer's control (Docket ID 0075, 0090). More specifically, AWCI
commented that some injuries and illnesses are ``due solely to employee
misconduct,'' or ``the fault of neither the employer nor the employee''
(Docket ID 0043). AWCI also commented that ``falsified or
misrepresented workplace injury or illness claims'' may result in
inaccurate
[[Page 47292]]
data, as will workplace fatalities that are later determined not to be
work-related (Docket ID 0043). Similarly, Angela Rodriguez commented
that under 29 CFR 1904.5(b)(2)(ii), employers are required to record
injuries and illnesses for which symptoms surface at work but result
solely from a nonwork-related event or exposure that occurs outside the
work environment (Docket ID 0052). The Chamber of Commerce claimed that
injury and illness data are unreliable because workers' compensation
programs and the presence of collective bargaining agreements affect
the number of injuries and illnesses reported to OSHA, therefore,
``[t]wo employers with the same kinds of injuries will be viewed by
OSHA and the public as differently culpable'' (Docket ID 0088,
Attachment 2). Finally, the Plastics Industry Association commented
that ``many injuries that have no bearing on an employer's safety
program must be recorded,'' and pointed to injuries resulting from
employee misconduct, substance abuse, and accidents as examples (Docket
ID 0086).
Other commenters were concerned that the collected data would lead
to misinterpretation because the data do not provide an accurate
picture of what is currently happening or what will happen in the
future. The Motor and Equipment Manufacturers Association commented
generally that ``injury and illness data would become stale by the time
it is made public'' (Docket ID 0075). AWCI commented that ``[l]agging
indicators . . . such as OSHA recordable/reportable injury and illness
data[ ] have shown to be poor indicators of future safety and health
performance'' because they ``present information about what has
occurred in the past with no mechanism for accurately predicting what
may occur in the future'' (Docket ID 0043).
Still other commenters said that the public would be even more
likely to misinterpret data from small businesses. AWCI commented that
``the formula that OSHA uses [to calculate injury and illness rates] is
based on 100 full-time workers and the denominator in the equation is
the total number of hours worked by all employees,'' so ``the resulting
incidence rates often depict extremely inaccurate perceptions of
smaller establishments' safety and health cultures and past safety and
health performances'' (Docket ID 0043). Similarly, the Associated
Builders and Contractors commented, ``by expanding the mandate to 100
or more employees from 250, OSHA's proposal puts smaller companies at a
disadvantage by making them appear to be less safe than larger
companies by comparison. A smaller company with the same number of
injuries and illnesses as a larger company is likely to have a higher
incident rate'' (Docket ID 0071).
In response, OSHA agrees with those commenters who stated that the
public will be able to use the published establishment-specific, case-
specific, injury and illness data to improve workplace safety and
health. The online availability of such data will allow members of the
public to determine which workplaces in a particular industry are the
safest, and identify emerging injury and illness trends in particular
industries. As noted by commenters, the public may use this data to
make decisions about what companies and industries they support and
want to work for. The availability of data will also facilitate the
press's ability to monitor and report on it, which will further ensure
that members of the public are well-informed and can make decisions
accordingly. For these reasons, and as explained above, OSHA finds that
public access to this data will ultimately help to improve workplace
safety and health.
Generally, to the extent the commenters suggest that the case-
specific data from Forms 300 and 301 will not be useful information to
the public, OSHA disagrees, and finds that the benefits of expanded
public access to this data outweigh commenters' concerns. As OSHA
explained in the final rule on Occupational Injury and Illness
Recording and Reporting Requirements (January 19, 2001), injury and
illness records have long made employers more aware of the injuries and
illnesses occurring in their workplaces, and are essential in helping
employers to effectively manage their safety and health programs.
Additionally, such records ensure employees are better informed about
hazards they face in the workplace and encourage employees to both
follow safe work practices and report workplace hazards to employers
(66 FR 5916-67). For similar reasons, as identified by commenters and
explained above, the public can use such data to improve workplace
safety and health.
However, OSHA acknowledges commenters' concerns about potential
misinterpretation and recognizes that the public may need more
assistance in understanding the data than employers, researchers, and
other similar interested parties. OSHA recognizes the need to provide
information to the public to aid their understanding of the data. The
web page for the ITA (https://www.osha.gov/Establishment-Specific-Injury-and-Illness-Data) contains several explanations of the data that
address commenters' specific concerns, including:
``Recording or reporting a work-related injury, illness,
or fatality does not mean that the employer or employee was at fault,
that an OSHA rule has been violated, or that the employee is eligible
for workers' compensation or other benefits.''
``While OSHA takes multiple steps to ensure the data
collected is accurate, problems and errors invariably exist for a small
percentage of establishments. OSHA does not believe the data for the
establishments with the highest rates in these files are accurate in
absolute terms. Efforts are made during the collection cycle to correct
submission errors; however, some remain unresolved. It would be a
mistake to say establishments with the highest rates in these files are
the `most dangerous' or `worst' establishments in the nation.''
The web page for the data collected through the OSHA Data
Initiative (https://www.osha.gov/ords/odi/establishment_search.html)
also includes the second explanatory note.
OSHA also notes the many examples in the rulemaking record provided
by commenters on not only how various interested parties currently use
establishment-specific, case-specific, injury and illness data, but
also on how they will be able to use the greater access to such
information provided by this final rule to reduce occupational injuries
and illnesses. Some commenters' concerns seem to hinge on the
assumption that the general public lacks the sophistication necessary
to understand the collected data. However, this section of the preamble
provides many examples of the ways in which employers, employees,
government agencies, researchers, and other interested parties will use
this data to perform more detailed and accurate analyses of workplace
safety and health practices, create education and training programs to
reduce workplace hazards, develop resources, and conduct studies. To
the extent that members of the public require additional context to
make sense of injury and illness data, other interested parties will
make that information available through their own use of the data.
Additionally, as explained in more detail in Section III.B.14 of
this Summary and Explanation, commenters provided suggestions for ways
to make published data more useful to interested parties. The Seventeen
AGs also commented that the public may only benefit from the
publication of injury and illness data ``if it is aware of its
existence,'' and suggested that OSHA ``evaluate and choose effective
avenues
[[Page 47293]]
for publicizing the availability of the data'' (Docket ID 0045). OSHA
will take these comments into consideration when designing tools and
applications to make the published data more accessible and useful to
interested parties.
After consideration of these comments, OSHA has determined that
members of the public and other interested parties will be able to use
the collected data to improve workplace safety and health. OSHA will
continue to consider additional ways to assist the public in both
awareness of and understanding the data, including through web-based
search applications and other products. As explained in the preamble to
the proposed rule, the agency plans to make the data available and able
to be queried via a web-based tool. Interested parties who are
interested in learning about occupational injuries and illnesses will
have access to information on when injuries and illnesses occur, where
they occur, and how they occur. In addition, interested parties can use
the tool to analyze injury and illness data and identify patterns that
are masked by the aggregation of injury/illness data in existing data
sources. As explained in the preamble to the proposed rule, in
developing a publicly accessible tool for injury and illness data, OSHA
will review how other Federal agencies, such as the Environmental
Protection Agency (EPA), have made their data publicly available via
online tools that support some analyses.
For the above reasons, and based on the record in this rulemaking,
OSHA believes that the electronic submission requirements, along with
the subsequent publication of certain injury and illness data, set
forth in this final rule will result in significant benefits to
occupational safety and health. OSHA also concludes that the
significant benefits to employers, employees, OSHA, and other
interested parties described in this section outweigh the slight risk
to employee privacy. Accordingly, OSHA has determined that it is
necessary and appropriate to require certain establishments to
electronically submit case-specific, establishment-specific, data from
their Forms 300 and 301 to OSHA once a year.
5. The Freedom of Information Act (FOIA)
Many of the comments OSHA received on proposed Sec. 1904.41(a)(2)
related not to the proposed requirement to submit information from OSHA
Forms 300 and 301, per se, but rather to OSHA's plan to make some of
the data which it receives publicly available on its website (as
detailed above). The agency is doing so for two main reasons. First,
based on its experience with previous FOIA requests for particular
establishments' Forms 300A, 300, and 301 (as contained in inspection
files) and for all Form 300A data submitted electronically, OSHA
anticipates that it will receive FOIA requests for the Form 300 and 301
data submitted under the requirements of this final rule. Once the
agency releases the Form 300 and 301 data submitted under the
requirements of this final rule (after applying the appropriate FOIA
exemptions), OSHA anticipates (again based on the previous FOIA
requests) that it would be required to post the released information
online under 5 U.S.C. 552(a)(2)(D), which requires agencies to ``make
available for public inspection in an electronic format . . . copies of
all records . . . that because of the nature of their subject matter,
the agency determines have become or are likely to become the subject
of subsequent requests for substantially the same records; or . . .
that have been requested 3 or more times[.]'' OSHA finds that
proactively releasing the electronically submitted information from
establishments' Forms 300 and 301 would conserve resources that OSHA
would otherwise spend responding to such FOIA requests (before the
information would be posted online after the agency's initial responses
to such requests).
Second, and more importantly from a safety and health perspective,
as explained in detail in Section III.B.4 of this Summary and
Explanation, above, OSHA believes that the public release of case-
specific data from establishments' Forms 300 and 301 will generate many
worker safety and health benefits. In short, OSHA anticipates that
employers, employees, Federal and State agencies, researchers,
workplace safety consultants, members of the public, and other
interested parties can use the collected data to improve workplace
safety and health. (Comments related to benefits are addressed above in
Section III.B.4 of this Summary and Explanation.)
OSHA explained both of these reasons in the proposal (see 87 FR
18535, 18542). OSHA also discussed the similarities between the way it
intends to treat the data it would collect and publish under this rule
and the way it responds to requests for the same data under FOIA. OSHA
explained that it already collects Forms 300 and 301 during many
inspections, and often receives requests for them under FOIA. As a
rule, OSHA releases copies of the Forms 300 and 301 for closed cases
after redacting the same information that will either not be collected
or not be published under this rule. OSHA explained that it uses FOIA
Exemptions 6 and 7(C) to withhold from disclosure information in
personnel and medical files and similar files that ``would constitute a
clearly unwarranted invasion of personal privacy'' or records or
information compiled for law enforcement purposes to the extent that
the production of such law enforcement records or information ``could
reasonably be expected to constitute an unwarranted invasion of
personal privacy'' (5 U.S.C. 552(b)(6), 552(b)(7)(C)). OSHA intended
this discussion to reassure the regulated community that it has a great
deal of experience in protecting privacy interests when it releases the
forms that are at issue in this rule.
Separately, OSHA also pointed out that in multiple cases where it
had denied FOIA requests for Form 300A data, which does not include
personal information about injured employees, courts had ruled that
OSHA had to release the data (see 87 FR 18531). OSHA believes those
rulings support its decision here to release non-personal information
from the Forms 300 and 301. (One commenter said that the name and
telephone number of the executive certifying the accuracy of Form 300A
should be considered private information (Docket ID 0086); OSHA agrees;
in fact, the agency has never even collected this information as part
of its routine data collection of information from the Form 300A
through either the ODI or the ITA. Likewise, it will not do so pursuant
to this rule.)
A number of commenters reacted to OSHA's discussion of FOIA (e.g.,
Docket IDs 0042, 0050, 0070, 0071, 0072, 0076, 0088, 0090, 0094). For
example, the National Propane Gas Association (NPGA) said that it
``strongly disagrees'' with OSHA's argument ``that since case-specific,
establishment-specific information is subject to FOIA requests, the
information is available to the public inevitably and, thereby, the
agency's proposal to create a public website merely eliminates the
procedural step of a stakeholder submitting a FOIA request.'' According
to NPGA, a ``FOIA request is defined to a specific incident or event,
date, and establishment and initiated on the basis of a defined
interest by the submitter'' (Docket ID 0050). OSHA does not agree. FOIA
requests can be filed by any member of the public, with no requirement
to show why the requester is seeking the information, and researchers
and members of the press
[[Page 47294]]
file such requests frequently. These requests are often for large
quantities of data, not for material related to ``a specific incident
or event, date, and establishment.''
The Phylmar Regulatory Roundtable (PRR) also expressed concern with
OSHA's statements in the preamble about how the agency ``generally
releases copies of the 300 logs [(i.e., Form 300)] maintained in
inspection files in response to FOIA requests after redacting employee
names (column B)'' (see 87 FR 18532) commenting, ``[i]t is not clear
what is meant by `generally releases' but it can be assumed it is not
often. Currently, OSHA only has access and, more importantly, the
ability to release Form 300 Logs that are collected as part of an
inspection'' (Docket ID 0094). PRR added, '' It is commonly known, and
stated in the NPRM, that OSHA does not have the resources to conduct a
fraction of the inspections that collection through the proposed rule
would produce. In actuality, the previous risk is much lower than what
OSHA is now proposing. Also, the privacy is no longer central to FOIA
requests because once the data is posted, anyone will have access,
without having to make any official requests. Finally, the little
protection the FOIA process does provide to protect worker
confidentiality will be gone as well.'' (Docket ID 0094).
This comment misunderstands OSHA's purpose in discussing its FOIA
practice. The section of the NPRM preamble in which the OSHA statements
quoted by PRR appear is an explanation of which data from the OSHA
Forms 300 and 301 the agency proposed to make available on OSHA's
website. In the paragraph in which the sentence commented on by PRR
appears, OSHA explained that it plans to collect all the fields in
establishments' Form 300 except employee name (column B) and that
``[a]ll collected data fields on the 300 Log will generally be made
available on OSHA's website'' (87 FR 18532). At the end of this
paragraph, OSHA explained that it currently ``generally releases copies
of the 300 Logs maintained in inspection files in response to FOIA
requests after redacting employee names'' (87 FR 18532). This
information was included to explain that releasing information from
establishments' Forms 300s is not new; OSHA has been releasing
information from both the 300 and 301 forms for some time.
When OSHA said it ``generally releases'' data, it meant that the
default is to release it, unless there is a reason not to do so (i.e.,
one or more FOIA Exemptions). For example, if a Form includes
information that could reasonably be expected to identify individuals
directly, the agency would withhold that information from release under
FOIA Exemption 6 or 7(C). Likewise, and as discussed in more detail
below, OSHA is utilizing multiple layers of protection to ensure that
information which could reasonably be expected to identify individuals
directly is protected from disclosure.
OSHA also disagrees with PRR's assertion that ``the little
protection the FOIA process does provide to protect worker
confidentiality will be gone'' when this rulemaking goes into effect
and with its claim that the risk of worker identification under OSHA's
FOIA practice is far lower than that in this rulemaking (Docket ID
0094). As explained extensively throughout this section, OSHA has
included multiple layers of protection to protect information that
could reasonably be expected to identify individuals directly.
Significantly, this includes not collecting some information that is
included on the Forms 300 and 301 that OSHA collects during inspections
(e.g., employee names). Thus, the information obtained in this
rulemaking is already starting at a less-identifiable point than the
information obtained during inspections. And OSHA expects that the
remainder of the process, i.e., system design, only releasing certain
fields, and using scrubbing technology, will provide comparable
protection to that provided under the FOIA process.
OSHA also received comments from a number of interested parties
expressing concern about the proposed requirement for establishments to
submit and OSHA's plan to publish particular information that appears
on establishments' Forms 300 or 301. These commenters alleged that
their businesses would suffer in various ways if such information was
collected and released. For example, some of these commenters argued
that the proposed rule would require employers to submit to OSHA data
that the commenters consider to be proprietary and confidential to
their businesses, e.g., the number of employees and the hours worked at
a particular location are regarded as proprietary information by many
companies (Docket IDs 0042, 0071, 0072, 0088, 0090). A comment from the
Louisiana Chemical Association is representative of this argument:
``The number of employees and the hours worked at a particular location
[are] regarded as proprietary information by many companies. This
information if revealed provides details regarding the business
processes, production volumes, security, and operational status of a
facility'' (Docket ID 0042). Similar comments were made by the National
Retail Federation (Docket ID 0090), the U.S. Chamber of Commerce
(Docket ID 0088), and the Associated Builders and Contractors (Docket
ID 0071).
Similarly, other commenters opposed the publication of an
establishment's name and address, as well as case-specific injury and
illness data from the Forms 300 and 301, on the ground that doing so
would harm a company's overall reputation (e.g., Docket ID 0036, 0043,
0050, 0068, 0071).\7\ For example, according to NAM, ``This newly
available data immediately puts employers, manufacturers in particular,
in a defensive posture whereby compliance with this rule adds
unintended risks to company reputation. Prematurely publishing
sensitive establishment data would damage those companies who are
improving their safety programs, leaving smaller businesses the most
vulnerable in such a scenario. Manufacturers need to know that their
good faith compliance will not hurt their business.'' (Docket ID 0068).
---------------------------------------------------------------------------
\7\ OSHA notes some of the issues noted in this paragraph are
addressed below in Section III.E of the Summary and Explanation, on
section 1904.41(b)(10). However, OSHA sees some utility in reviewing
this issue in this part of the preamble as well.
---------------------------------------------------------------------------
When considering whether a particular piece of information OSHA
proposed to collect and make publicly available in this rulemaking will
be problematic in any way, including as to a company's competitiveness
or its reputation, it is important to consider which information is
currently publicly available and whether posting such data has actually
resulted in the harm raised by commenters on this rulemaking. OSHA
began publishing individual establishment 300A annual summary data,
then submitted through the OSHA Data Initiative (ODI), in 2009, and
data for calendar years 1996 through 2011 is posted in a searchable
format at: https://www.osha.gov/ords/odi/establishment_search.html. The
ODI data files include information on the number of employees and the
hours worked hours, as well as establishments' names and street
addresses (see ``DataDictionary1996-2001.txt'', ``DataDictionary2002-
2011.txt'' available at the ODI website cited in the previous
sentence). Despite the fact that these data have been publicly
available for more than a decade, OSHA is not aware of, and no
commenter has provided, any specific examples of reputational harm, of
firms losing business opportunities or potential
[[Page 47295]]
employees, or any other harm resulting from the public availability of
these data.
This point was emphasized in comments submitted by the Strategic
Organizing Center for this rulemaking (Docket ID 0079), including one
previously submitted during the proceeding leading the 2016 rule. That
comment pointed out that none of the employers expressing concern about
``reputational damage'' during a 2013 public meeting on what became the
2016 rule ``could point to a single instance of such damage arising
from the release of workplace injury/illness records.'' The comment
added that ``the representatives of several large trade associations .
. . made the same claim, and offered the same paucity of evidence.''
SOC further opined that if any of their members had actually suffered
any reputational damages, then these ``highly sophisticated
participants . . . would either already know about it or been able to
find at least a pattern of compelling examples worthy of the
Secretary's consideration in this rulemaking,'' but they did not offer
any such examples at the public meeting, ``even in response to repeated
questions by OSHA.'' Almost a decade has passed since that meeting,
even more information is available, and OSHA has still seen no evidence
of reputational or other harm to employers that submitted required
data.
Moreover, OSHA has also published data from establishments' Forms
300A for calendar years 2016 through 2021 in downloadable data files at
https://www.osha.gov/Establishment-Specific-Injury-and-Illness-Data.
These published data include, among other things, company name and
address, annual average number of employees, and total hours worked
(see Data Dictionary available at the OSHA website cited in the
previous sentence). Again, OSHA is not aware of, and no commenter has
provided, any specific examples of reputational harm, of firms losing
business opportunities or potential employees, or any other harm
resulting from the public availability of these data. Consequently,
OSHA is not persuaded that these unsubstantiated concerns regarding
potential harms that may result from OSHA's posting of information from
their recordkeeping forms in any way outweigh the worker safety and
health benefits that will be realized from OSHA's collection and
posting of certain data from establishments' recordkeeping forms.
OSHA also received comments arguing that the proposed rule was
arbitrary and capricious or that OSHA's statements within the proposed
rule's preamble were otherwise suspect, problematic, or confusing
because OSHA has taken a different position during past FOIA
litigation. For example, the U.S. Chamber of Commerce commented that in
the New York Times Co. v. U.S. Dep't of Labor, 340 F. Supp. 2d 394
(S.D.N.Y. 2004), and in OSHA Data/CIH, Inc. v. U.S. Dep't of Labor, 220
F.3d 153 (3d Cir. 2000), OSHA took the position that the total number
of employees and hours worked at a particular establishment was
``confidential and proprietary business information,'' in contrast to
its position in the NPRM (Docket ID 0088, Attachment 2).
The Chamber accurately characterizes OSHA's arguments in the New
York Times case but fails to mention one key fact: the court found that
the information was not confidential. Specifically, in its decision,
the court concluded that basic injury and illness recordkeeping data
regarding the average number of employees and total number of hours
worked does not involve confidential commercial information (see 350 F.
Supp. 2d 394 at 403). It held that competitive harm would not result
from OSHA's release of lost workday injury and illness rates of
individual establishments, from which the number of employee hours
worked could theoretically be derived (id. at 402-403). Additionally,
the court explained that most employers do not view injury and illness
data as confidential (id. at 403).
In the years after the court's decision rejected the Secretary's
argument that the injury and illness rates requested in the FOIA suit
could constitute commercial information under Exemption 4 of FOIA, 5
U.S.C. 552(b)(4), the Secretary reconsidered their position. Beginning
in 2004, in response to FOIA requests, OSHA's policy has been to
release information from Form 300A on the annual average number of
employees and total hours worked by all employees during the past year
at an establishment. Similarly, OSHA began releasing establishment
Forms 300 and 301 in response to FOIA requests (after appropriately
redacting certain personal identifiers under Exemption 7(C)). And, as
noted above, the agency began posting information from establishments'
Forms 300A online in 2009 as part of ODI. Thus, OSHA included a
statement in the 2013 proposed rule and 2016 final rule explaining that
the Secretary no longer believes that the injury and illness
information entered on the OSHA recordkeeping forms constitutes
confidential commercial information.
OSHA's general practice of releasing recordkeeping forms to FOIA
requesters (with appropriate redactions largely related to information
that could identify employees, e.g., employee names) continued in the
years prior to the Supreme Court's decision in Food Marketing Institute
v. Argus Leader Media, 139 S. Ct. 2356 (2019) (``Argus Leader''). In
Argus Leader, the Court held that ``at least where commercial or
financial information is both customarily and actually treated as
private by its owner and provided to the government under an assurance
of privacy, the information is `confidential' within the meaning of
Exemption 4'' (id. at 2366). After the issuance of the Argus Leader
decision, OSHA changed its practice and began processing requests for
OSHA Forms 300, 300A, and 301 under Exemption 4, a decision which the
agency believed was supported by Argus Leader. Then, after several
courts disagreed with OSHA's interpretation, the agency reverted to its
previous practice and began releasing the recordkeeping forms as before
(see 87 FR 18531 (discussing three adverse rulings in which courts
rejected OSHA's position that electronically submitted 300A injury and
illness data are covered under the confidentiality exemption in FOIA
Exemption 4)). In other words, although OSHA has previously argued that
some of the Form 300, 300A, and 301 information should not be released
under FOIA, the agency changed its posture to comport with adverse
court rulings. Consequently, the agency is not persuaded by comments
reiterating those court-rejected arguments.
In making this decision, OSHA notes that many employers already
routinely disclose information about the number of employees at an
establishment. Since 2001, OSHA's recordkeeping regulation has required
employers to record information about the average annual number of
employees and total number of hours worked by all employees on the OSHA
Form 300A. Section 1904.35 also requires employers to provide to
employees, former employees, and employee representatives non-redacted
copies of the OSHA Form 300A. In addition, Sec. 1904.32(a)(4) requires
employers to publicly disclose information about the number of
employees and total number of hours worked through the annual posting
of the 300A in the workplace for three months from February 1 to April
30.
OSHA notes that it also received comments from interested parties
arguing that OSHA should rescind the requirement to submit the 300A
Summary Form to OSHA because that form contains confidential business
[[Page 47296]]
information (CBI) (e.g., Docket ID 0059). Such comments are reiterating
legal arguments which courts rejected in the cases discussed above.
Consequently, OSHA disagrees with the assertion that the 300A forms
contain CBI and declines to make the requested change.
6. Safeguarding Individual Privacy (Direct Identification)
As explained above, OSHA's decision to collect certain data from
establishments' Forms 300 and 301 stems from its determination that
OSHA will be able to use the data to improve worker safety and health.
Similarly, the agency's decision to publish some of the Forms 300 and
301 data it receives pursuant to this rulemaking flows from its
expectation that it will receive FOIA requests requesting the data and
its determination that such publication will result in many
occupational safety and health benefits. Importantly, in the proposal,
OSHA also preliminarily determined that these benefits would not be at
the expense of employee privacy. In other words, OSHA preliminarily
determined that it would be able to adequately protect information that
could reasonably be expected to identify individuals directly--both in
the collecting and possession of the data and in its decisions
surrounding which information will be made publicly available.
This question, i.e., whether OSHA would be able to adequately
protect information that could reasonably be expected to identify
individuals directly, was raised in the rulemaking that culminated in
the issuance of the 2016 final rule. It was also a major factor in
OSHA's decision to rescind the requirement for certain employers to
electronically submit information from Forms 300 and 301. Specifically,
in the preamble to the 2019 final rule, OSHA stated that it was
rescinding that requirement ``to protect sensitive worker information
from potential disclosure under the Freedom of Information Act (FOIA)''
and that ``OSHA has always applied a balancing test to weigh the value
of worker privacy against the usefulness of releasing the data'' (84 FR
383-384). The preamble to the 2019 final rule also stated the agency's
belief at the time that OSHA could withhold the data from Forms 300 and
301 from publication under FOIA Exemptions 6 and 7(C) (84 FR 386), but
OSHA concluded at that time that the risk of disclosure of case-
specific,