Rule2023-15091
Improve Tracking of Workplace Injuries and Illnesses
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 21, 2023
Effective
January 1, 2024
Issuing agencies
Labor DepartmentOccupational Safety and Health Administration
Abstract
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.
Full Text
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<title>Federal Register, Volume 88 Issue 139 (Friday, July 21, 2023)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-15091]
[[Page 47253]]
Vol. 88
Friday,
No. 139
July 21, 2023
Part II
Department of Labor
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Occupational Safety and Health Administration
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29 CFR Part 1904
Improve Tracking of Workplace Injuries and Illnesses; Final Rule
Federal Register / Vol. 88 , No. 139 / Friday, July 21, 2023 / Rules
and Regulations
[[Page 47254]]
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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.
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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 <a href="https://www.osha.gov">https://www.osha.gov</a>.
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:
<a href="/cdn-cgi/l/email-protection#94f9f1fdf8fdfaf3f1e6baf2e6f5faf7fde7a6d4f0fbf8baf3fbe2"><span class="__cf_email__" data-cfemail="84e9e1ede8edeae3e1f6aae2f6e5eae7edf7b6c4e0ebe8aae3ebf2">[email protected]</span></a>.
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:
<a href="/cdn-cgi/l/email-protection#c78daeababaea9a0b4e98ba2a286a9a9a287a3a8abe9a0a8b1"><span class="__cf_email__" data-cfemail="52183b3e3e3b3c35217c1e3737133c3c3712363d3e7c353d24">[email protected]</span></a>.
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
<a href="http://www.regulations.gov">http://www.regulations.gov</a>, 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
<a href="http://www.regulations.gov">http://www.regulations.gov</a>. 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:
<bullet> 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).
<bullet> 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.
<bullet> 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.
<bullet> 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.
<bullet> 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.
<bullet> 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.
<bullet> 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)).
<bullet> 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.
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\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.
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On January 19, 2001, OSHA issued a final rule amending its
requirements for the recording and reporting of occupational injuries
and illnesses (29 CFR parts 1904 and 1952), along with the forms
employers use to record those injuries and illnesses (66 FR 5916). The
final rule also updated the list of industries that are partially
exempt from recording occupational injuries and illnesses.
On September 18, 2014, OSHA again amended the regulations to
require employers to report work-related fatalities and severe
injuries--in-patient hospitalizations, amputations, and losses of an
eye--to OSHA and to allow electronic reporting of these events (79 FR
56130). The final rule also revised the list of industries that are
partially exempt from recording occupational injuries and illnesses.
On May 12, 2016, OSHA amended the regulations on recording and
reporting occupational injuries and illnesses to require employers, on
an annual basis, to submit electronically to OSHA injury and illness
information that employers are already required to keep under part 1904
(81 FR 29624). Under the 2016 revisions, establishments with 250 or
more employees that are routinely required to keep records were
required to electronically submit information from their OSHA Forms
300, 300A, and 301 to OSHA or OSHA's designee once a year, and
establishments with 20 to 249 employees in certain designated
industries were required to electronically submit information from
their OSHA annual summary (Form 300A) to OSHA or OSHA's designee once a
year. In addition, that final rule required employers, upon
notification, to electronically submit information from part 1904
recordkeeping forms to OSHA or OSHA's designee. These provisions became
effective on January 1, 2017, with an initial submission deadline of
July 1, 2017, for 2016 Form 300A data. That submission deadline was
subsequently extended to December 15, 2017 (82 FR 55761). The 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 <a href="https://www.osha.gov/Establishment-Specific-Injury-and-Illness-Data">https://www.osha.gov/Establishment-Specific-Injury-and-Illness-Data</a> 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 (<a href="https://www.census.gov/programs-surveys/cbp/data/datasets.html">https://www.census.gov/programs-surveys/cbp/data/datasets.html</a>). 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 (<a href="https://www.census.gov/programs-surveys/cbp/data/datasets.html">https://www.census.gov/programs-surveys/cbp/data/datasets.html</a>). 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 <a href="https://www.census.gov/programs-surveys/cbp/data/datasets.html">https://www.census.gov/programs-surveys/cbp/data/datasets.html</a>). 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 <a href="https://www.osha.gov/enforcement/directives/cpl-02-00-135">https://www.osha.gov/enforcement/directives/cpl-02-00-135</a>). 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 <a href="https://www.bls.gov/iif/nonfatal-injuries-and-illnesses-tables/soii-summary-historical/supplemental-table-1-2019-national.xlsx">https://www.bls.gov/iif/nonfatal-injuries-and-illnesses-tables/soii-summary-historical/supplemental-table-1-2019-national.xlsx</a> for the TCR table and <a href="https://www.bls.gov/iif/nonfatal-injuries-and-illnesses-tables/soii-summary-historical/supplemental-table-2-2019-national.xlsx">https://www.bls.gov/iif/nonfatal-injuries-and-illnesses-tables/soii-summary-historical/supplemental-table-2-2019-national.xlsx</a> 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:
<bullet> NAICS 1133--Logging (2019 fatality rate of 47.6),
<bullet> NAICS 1142--Hunting and Trapping (three-year average DART
rate of 3.1),
<bullet> NAICS 3379--Other Furniture Related Product Manufacturing
(three-year average DART rate of 2.27),
<bullet> NAICS 4239--Miscellaneous Durable Goods Merchant
Wholesalers (2019 fatality rate of 15.6),
<bullet> NAICS 4853--Taxi and Limousine Service (2019 fatality rate
of 6.9), and
<bullet> 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.
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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:
<bullet> Employee name (column B), from the Log of Work-Related
Injuries and Illnesses (OSHA Form 300).
<bullet> 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:
<bullet> 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.
<bullet> 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:
<bullet> Nature of injury: 1,520 (heat (thermal) burns, unspecified)
<bullet> Part of body affected: 423 (forearm)
<bullet> Source of injury or illness: 7,261 (welding, cutting, and blow
torches)
<bullet> 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 <a href="https://www.osha.gov/Establishment-Specific-Injury-and-Illness-Data">https://www.osha.gov/Establishment-Specific-Injury-and-Illness-Data</a>, 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
[…truncated; see source link]Indexed from Federal Register on July 21, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.