Improve Tracking of Workplace Injuries and Illnesses
Federal RegisterMay 12, 2016
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Parts 1904 and 1902
[Docket No. OSHA-2013-0023]
RIN 1218-AC49
Improve Tracking of Workplace Injuries and Illnesses
AGENCY:
Occupational Safety and Health Administration (OSHA), Labor.
ACTION:
Final rule.
SUMMARY:
OSHA is issuing a final rule to revise its Recording and Reporting Occupational Injuries and Illnesses regulation. The final rule requires employers in certain industries to electronically submit to OSHA injury and illness data that employers are already required to keep under existing OSHA regulations. The frequency and content of these establishment-specific submissions is set out in the final rule and is dependent on the size and industry of the employer. OSHA intends to post the data from these submissions on a publicly accessible Web site. OSHA does not intend to post any information on the Web site that could be used to identify individual employees.
The final rule also amends OSHA's recordkeeping regulation to update requirements on how employers inform employees to report work-related injuries and illnesses to their employer. The final rule requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation; clarifies the existing implicit requirement that an employer's procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting; and incorporates the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses. The final rule also amends OSHA's existing recordkeeping regulation to clarify the rights of employees and their representatives to access the injury and illness records.
DATES:
This final rule becomes effective on January 1, 2017, except for §§ 1904.35 and 1904.36, which become effective on August 10, 2016. Collections of information: There are collections of information contained in this final rule (
see
Section XI, Office of Management and Budget Review Under the Paperwork Reduction Act of 1995). Notwithstanding the general date of applicability that applies to all other requirements contained in the final rule, affected parties do not have to comply with the collections of information until the Department of Labor publishes a separate document in the
Federal Register
announcing that the Office of Management and Budget has approved them under the Paperwork Reduction Act.
ADDRESSES:
In accordance with 28 U.S.C. 2112(a)(2), OSHA designates Ann Rosenthal, Associate Solicitor of Labor for Occupational Safety and Health, Office of the Solicitor, Room S-4004, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210, to receive petitions for review of the final rule.
FOR FURTHER INFORMATION CONTACT:
For press inquiries:
Frank Meilinger, OSHA, Office of Communications, Room N-3647, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-1999; email:
meilinger.francis2@dol.gov
For general and technical information:
Miriam Schoenbaum, OSHA, Office of Statistical Analysis, Room N-3507, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-1841; email:
schoenbaum.miriam@dol.gov
.
SUPPLEMENTARY INFORMATION:
I. Background
A. Table of Contents
The following table of contents identifies the major sections of the preamble to the final rule revising OSHA's Occupational Injury and Illness Recording and Reporting Requirements regulation (Improving tracking of workplace injuries and illnesses):
I. Background
A. Table of Contents
B. References and Exhibits
C. Introduction
D. Regulatory History
II. Legal Authority
III. Section 1904.41
A. Background
B. The Proposed Rule
C. Comments on the Proposed Rule
D. The Final Rule
IV. Section 1902.7—State Plan Requirements
V. Section 1904.35 and Section 1904.36
A. Background
B. The Proposed Rule
C. The Final Rule
VI. Final Economic Analysis and Regulatory Flexibility Analysis
A. Introduction
B. Costs
C. Benefits
D. Economic Feasibility
E. Regulatory Flexibility Certification
VII. Unfunded Mandates
VIII. Federalism
IX. State Plan States
X. Environmental Impact Assessment
XI. Office of Management and Budget Review Under the Paperwork Reduction Act of 1995
XII. Consultation and Coordination With Indian Tribal Governments
B. References and Exhibits
In this preamble, OSHA references documents in Docket No. OSHA-2013-0023, the docket for this rulemaking. The docket is available at
http://www.regulations.gov
, the Federal eRulemaking Portal.
References to documents in this rulemaking docket are given as “Ex.” followed by the document number. The document number is the last sequence of numbers in the Document ID Number on
http://www.regulations.gov
. For example, Ex. 1, the proposed rule, is Document ID Number OSHA-2013-0023-0001.
The exhibits in the docket, including public comments, supporting materials, meeting transcripts, and other documents, are listed on
http://www.regulations.gov
. All exhibits are listed in the docket index on
http://www.regulations.gov
. However, some exhibits (
e.g.,
copyrighted material) are not available to read or download from that Web page. All materials in the docket are available for inspection and copying at the OSHA Docket Office, Room N-2625, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-2350.
C. Introduction
OSHA's regulation at 29 CFR part 1904 requires employers with more than 10 employees in most industries to keep records of occupational injuries and illnesses at their establishments. Employers covered by these rules must record each recordable employee injury and illness on an OSHA Form 300, which is the “Log of Work-Related Injuries and Illnesses,” or equivalent. Employers must also prepare a supplementary OSHA Form 301 “Injury and Illness Incident Report” or equivalent that provides additional details about each case recorded on the OSHA Form 300. Finally, at the end of each year, employers are required to prepare a summary report of all injuries and illnesses on the OSHA Form 300A, which is the “Summary of Work-Related Injuries and Illnesses,” and post the form in a visible location in the workplace.
This final rule amends OSHA's recordkeeping regulations to add requirements for the electronic submission of injury and illness information employers are already required to keep under part 1904. First,
the final rule requires establishments with 250 or more employees to electronically submit information from their part 1904 recordkeeping forms (Forms 300, 300A, and 301) to OSHA or OSHA's designee on an annual basis. Second, the final rule requires establishments with 20 or more employees, but fewer than 250 employees, in certain designated industries, to electronically submit information from their part 1904 annual summary (Form 300A) to OSHA or OSHA's designee on an annual basis. Third, the final rule requires, upon notification, employers to electronically submit information from part 1904 recordkeeping forms to OSHA or OSHA's designee.
The electronic submission requirements in the final rule do not add to or change any employer's obligation to complete and retain injury and illness records under OSHA's regulations for recording and reporting occupational injuries and illnesses. The final rule also does not add to or change the recording criteria or definitions for these records.
OSHA intends to post the establishment-specific injury and illness data it collects under this final rule on its public Web site at
www.osha.gov
. The publication of specific data fields will be in part restricted by applicable federal law, including the Freedom of Information Act (FOIA), as well as specific provisions within part 1904. OSHA does not intend to post any information on the Web site that could be used to identify individual employees.
Additionally, OSHA's existing recordkeeping regulation requires employers to inform employees about how to report occupational injuries and illnesses (29 CFR 1904.35(a), (b)). This final rule amends OSHA's recordkeeping regulations to require employers to inform employees of their right to report work-related injuries and illnesses; clarifies the existing implicit requirement that an employer's procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting; and incorporates the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses.
OSHA estimates that this final rule will have economic costs of $15 million per year, including $13.7 million per year to the private sector, with costs of $7.2 million per year for electronic submission for affected establishments with 250 or more employees and $4.6 million for electronic submission for affected establishments with 20 to 249 employees in designated industries. With respect to the anti-discrimination requirements of this final rule, OSHA estimates a first-year cost of $8.0 million and annualized costs of $0.9 million per year. When fully implemented, the first-year economic cost for all provisions of the final rule is estimated at $28 million. The rule will be phased in, which moves the annual cost for reporting case characteristic data from OSHA Forms 300 and 301 by 33,000 establishments from 2017 to 2018. This phase-in removes about $6.9 million from the first year costs, but those costs would reappear in years two through 10.
The Agency believes that the annual benefits, while unquantified, exceed the annual costs. These benefits include better compliance with OSHA's statutory directive “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources” (29 U.S.C. 651(b)). They also include increased prevention of workplace injuries and illnesses as a result of expanded access to timely, establishment-specific injury/illness information by OSHA, employers, employees, employee representatives, potential employees, customers, potential customers, and researchers. The benefits of the final rule also include promotion of complete and accurate reporting of work-related injuries and illnesses.
D. Regulatory History
OSHA's regulations on recording and reporting occupational injuries and illnesses (29 CFR part 1904) were first issued in 1971 (36 FR 12612, July 2, 1971). This regulation requires the recording of work-related injuries and illnesses that involve death, loss of consciousness, days away from work, restriction of work, transfer to another job, medical treatment other than first aid, or diagnosis of a significant injury or illness by a physician or other licensed health care professional (29 CFR 1904.7).
On December 28, 1982, OSHA amended these regulations to partially exempt establishments in certain lower-hazard industries from the requirement to record occupational injuries and illnesses (47 FR 57699). OSHA also amended the recordkeeping regulations in 1994 (Reporting fatalities and multiple hospitalization incidents to OSHA, 29 CFR 1904.39) and 1997 (Annual OSHA injury and illness survey of ten or more employers, 29 CFR 1904.41).
In 2001, OSHA issued a final rule amending its requirements for the recording and reporting of occupational injuries and illnesses (29 CFR parts 1904 and 1902), along with the forms employers use to record those injuries and illnesses (66 FR 5916 (Jan. 19, 2001)). The final rule also updated the list of industries that are partially exempt from recording occupational injuries and illnesses. In 2014, OSHA again amended the part 1904 regulations to require employers to report work-related fatalities, in-patient hospitalizations, amputations, and losses of an eye to OSHA and to allow electronic reporting (79 FR 56130 (Sept. 18, 2014)). The final rule also revised the list of industries that are partially exempt from recording occupational injuries and illnesses.
On November 8, 2013, OSHA issued a proposed rule to amend its recordkeeping regulations to add requirements for electronic submission of injury and illness information that employers are already required to keep (78 FR 67254). In the preamble to the proposed rule, OSHA explained that, consistent with applicable Federal law, such as FOIA and specific provisions of part 1904, the Agency intended to post the recordkeeping data it collects on its public Web site. A public meeting on the proposed rule was held on January 9-10, 2014. A concern raised by many meeting participants was that the proposed electronic submission requirement might create a motivation for employers to under-report injuries and illnesses. Some participants also commented that some employers already discourage employees from reporting injuries or illnesses by disciplining or taking other adverse action against employees who file injury and illness reports. As a result, on August 14, 2014, OSHA issued a supplemental notice to the proposed rule seeking comments on whether to amend the part 1904 regulations to prohibit employers from taking adverse action against employees for reporting occupational injuries and illnesses. OSHA received 311 comments on the electronic submission section of the proposed rule and 142 comments on the supplemental notice to the proposed rule. The comments for the proposed rule and the supplemental notice to the proposed rule are addressed below.
II. Legal Authority
OSHA is issuing this final rule pursuant to authority expressly granted by sections 8 and 24 of the Occupational Safety and Health Act (the “OSH Act” or “Act”) (29 U.S.C. 657, 673). Section 8(c)(1) requires each employer to “make, keep and preserve, and make available to the Secretary [of Labor] or the
Secretary of Health and Human Services, such records regarding his activities relating to this Act as the Secretary . . . may prescribe by regulation as necessary or appropriate for the enforcement of this Act or for developing information regarding the causes and prevention of occupational accidents and illnesses” (29 U.S.C. 657(c)(1)). Section 8(c)(2) directs the Secretary to prescribe regulations “requiring employers to maintain accurate records of, and to make periodic reports on, work-related deaths, injuries and illnesses other than minor injuries requiring only first aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job” (29 U.S.C. 657(c)(2)). Finally, section 8(g)(2) of the OSH Act broadly empowers the Secretary to “prescribe such rules and regulations as he may deem necessary to carry out [his] responsibilities under this Act” (29 U.S.C. 657(g)(2)).
Section 24 of the OSH Act (29 U.S.C. 673) contains a similar grant of authority. This section requires the Secretary to “develop and maintain an effective program of collection, compilation, and analysis of occupational safety and health statistics” and “compile accurate statistics on work injuries and illnesses which shall include all disabling, serious, or significant injuries and illnesses . . .” (29 U.S.C. 673(a)). Section 24 also requires employers to “file such reports with the Secretary as he shall prescribe by regulation” (29 U.S.C. 673(e)). These reports are to be based on “the records made and kept pursuant to section 8(c) of this Act” (29 U.S.C. 673(e)).
Further support for the Secretary's authority to require employers to keep and submit records of work-related illnesses and injuries can be found in the Congressional Findings and Purpose at the beginning of the OSH Act (29 U.S.C. 651). In this section, Congress declares the overarching purpose of the Act to be “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions” (29 U.S.C. 651(b)). One of the ways in which the Act is meant to achieve this goal is “by providing for appropriate reporting procedures . . . [that] will help achieve the objectives of this Act and accurately describe the nature of the occupational safety and health problem” (29 U.S.C. 651(b)(12)).
The OSH Act authorizes the Secretary of Labor to issue two types of occupational safety and health rules: Standards and regulations. Standards, which are authorized by section 6 of the Act, specify remedial measures to be taken to prevent and control employee exposure to identified occupational hazards, while regulations are the means to effectuate other statutory purposes, including the collection and dissemination of records of occupational injuries and illnesses. For example, the OSHA requirements at 29 CFR 1910.95 are a “standard” because they include remedial measures to address the specific and already identified hazard of employee exposure to occupational noise. In contrast, a “regulation” is a purely administrative effort designed to uncover violations of the Act and discover unknown dangers.
Recordkeeping requirements promulgated under the Act are characterized as regulations (
see
29 U.S.C. 657 (using the term “regulations” to describe recordkeeping requirements)). Also, courts of appeal have held that OSHA recordkeeping rules are regulations and not standards.
See, Workplace Health & Safety Council
v.
Reich,
56 F.3d 1465, 1468 (D.C. Cir. 1995) (citing
Louisiana Chemical Association
v.
Bingham,
657 F.2d 777, 781-82 (5th Cir. 1981);
United Steelworkers of America
v.
Auchter,
763 F.2d 728, 735 (3d Cir. 1985)). Standards aim to correct particular identified workplace hazards, while regulations further the general enforcement and detection purposes of the OSH Act.
Id.
This final rule does not infringe on employers' Fourth Amendment rights. The Fourth Amendment protects against searches and seizures of private property by the government, but only when a person has a “legitimate expectation of privacy” in the object of the search or seizure (
Rakas
v.
Illinois,
439 U.S. 128, 143-47 (1978)). There is little or no expectation of privacy in records that are required by the government to be kept and made available (
Free Speech Coalition
v.
Holder,
729 F.Supp.2d 691, 747, 750-51 (E.D. Pa. 2010) (citing cases);
United States
v.
Miller,
425 U.S. 435, 442-43 (1976);
cf. Shapiro
v.
United States,
335 U.S. 1, 33 (1948) (no Fifth Amendment interest in required records)). Accordingly, the Fourth Circuit held, in
McLaughlin
v.
A.B. Chance,
that an employer has little expectation of privacy in the records of occupational injuries and illnesses kept pursuant to OSHA regulations, and must disclose them to the Agency on request (842 F.2d 724, 727-28 (4th Cir. 1988)).
Even if there were an expectation of privacy, the Fourth Amendment prohibits only
unreasonable
intrusions by the government (
Kentucky
v.
King,
131 S. Ct. 1849, 1856 (2011)). The information submission requirement in this final rule is reasonable. The requirement serves a substantial government interest in the health and safety of workers, has a strong statutory basis, and rests on reasonable, objective criteria for determining which employers must report information to OSHA (
see New York
v.
Burger,
482 U.S. 691, 702-703 (1987)).
OSHA notes that two courts have held, contrary to
A.B. Chance,
that the Fourth Amendment requires prior judicial review of the reasonableness of an OSHA field inspector's demand for access to injury and illness logs before the Agency could issue a citation for denial of access (
McLaughlin
v.
Kings Island,
849 F.2d 990 (6th Cir. 1988);
Brock
v.
Emerson Electric Co.,
834 F.2d 994 (11th Cir. 1987)). Those decisions are inapposite here. The courts based their rulings on a concern that field enforcement staff had unbridled discretion to choose the employers they would inspect and the circumstances in which they would demand access to employer records. The
Emerson Electric
court specifically noted that in situations where “businesses or individuals are required to report particular information to the government on a regular basis[,] a uniform statutory or regulatory reporting requirement [would] satisf[y] the Fourth Amendment concern regarding the potential for arbitrary invasions of privacy” (834 F.2d at 997, fn.2). This final rule, like that hypothetical, establishes general reporting requirements based on objective criteria and does not vest field staff with any discretion. The employers that are required to report data, the information they must report, and the time when they must report it are clearly identified in the text of the rule and in supplemental documents that will be published pursuant to the Paperwork Reduction Act. The final rule is similar in these respects to the existing regulation in § 1904.41 that authorized reporting pursuant to the OSHA Data Initiative and is reasonable under the Fourth Amendment (
see
62 FR 6434, 6437-38 (Feb. 11, 1997) for a discussion of Fourth Amendment issues in the final rule on Reporting Occupational Injury and Illness Data to OSHA). The existing regulation in § 1904.41 required employers who received OSHA's annual survey form to report the following information to OSHA for the year described on the form: Number of workers the employer employed, the number of hours the employees worked, and the requested information from the records that the employers keep under part 1904.
The Act's various statutory grants of authority that address recordkeeping provide authority for OSHA to prohibit employers from discouraging employee reports of injuries or illnesses. If employers may not discriminate against workers for reporting injuries or illnesses, then discrimination will not occur to deter workers from reporting their injuries and illnesses, and their employers' records and reports may be more “accurate”, as required by sections 8 and 24 of the Act. Evidence in the administrative record establishes that some employers engage in practices that discourage injury and illness reporting, and many commenters provided support for OSHA's concern that the electronic submission requirements of this final rule and associated posting of data could provide additional motivation for employers to discourage accurate reporting of injuries and illnesses. Therefore, prohibiting employers from engaging in practices that discourage their employees from reporting injuries or illnesses, including discharging or in any manner discriminating against such employees, is “necessary to carry out” the recordkeeping requirements of the Act (
see
29 U.S.C. 657(g)(2)).
As noted by many commenters, section 11(c) of the Act already prohibits any person from discharging or otherwise discriminating against any employee because that employee has exercised any right under the Act (29 U.S.C. 660(c)(1)). Under this provision, an employee who believes he or she has been discriminated against may file a complaint with OSHA, and if, after investigation, the Secretary has reasonable cause to believe that section 11(c) has been violated, then the Secretary may file suit against the employer in U.S. District Court seeking “all appropriate relief,” including reinstatement and back pay (29 U.S.C. 660(c)(2)). Discriminating against an employee who reports a fatality, injury, or illness is a violation of section 11(c) (
see
29 CFR 1904.36), so the conduct prohibited by § 1904.35(b)(1)(iv) of the final rule is already proscribed by section 11(c).
The advantage of this new provision (§ 1904.35(b)(1)(iv)) is that it provides OSHA with additional enforcement tools to promote the accuracy and integrity of the injury and illness records employers are required to keep under part 1904. For example, under section 11(c), OSHA may not act against an employer unless an employee files a complaint. Under § 1904.35(b)(1)(iv) of the final rule, OSHA will be able to cite an employer for taking adverse action against an employee for reporting an injury or illness, even if the employee did not file a complaint. Moreover, citations can result in orders requiring employers to abate violations, which may be a more efficient tool to correct employer policies and practices than the remedies authorized under section 11(c), which are often employee-specific.
The fact that section 11(c) already provides a remedy for retaliation does not preclude the Secretary from implementing alternative remedies under the OSH Act. Where retaliation threatens to undermine a program that Congress required the Secretary to adopt, the Secretary may proscribe that retaliation through a regulatory provision unrelated to section 11(c). For example, under the medical removal protection (MRP) provision of the lead standard, employers are required to pay the salaries of workers who cannot work due to high blood lead levels (29 CFR 1910.1025(k);
see United Steelworkers, AFL-CIO
v.
Marshall,
647 F.2d 1189, 1238 (D.C. Cir. 1980)). And it is well established that the Occupational Safety and Health Review Commission may order employers to pay back pay as abatement for violations of the MRP requirements (
see United Steelworkers, AFL-CIO
v.
St. Joe Resources,
916 F.2d 294, 299 (5th Cir. 1990);
Dole
v.
East Penn Manufacturing Co.,
894 F.2d 640, 646 (3d Cir. 1990)). If the reason that an employer decided not to pay MRP benefits was to retaliate for an employee's exercise of a right under the Act, OSHA can still cite the employer and seek the benefits as abatement, because payment of the benefits is important to vindicate the health interests underlying MRP. The mere fact that section 11(c) provides one remedial process does not require that OSHA treat the matter as an 11(c) case (
see St. Joe Resources,
916 F.2d at 298 (stating that that 11(c) was not an exclusive remedy, because otherwise the remedial purposes of MRP would be undermined)). This would also be the case under the final rule. If employers reduce the accuracy of their injury and illness records by retaliating against employees who report an injury or illness, then OSHA's authority to collect accurate injury and illness records allows OSHA to proscribe such conduct even if the conduct would also be proscribed by section 11(c).
III. Section 1904.41
A. Background
OSHA regulations at 29 CFR part 1904 currently require employers with more than 10 employees in most industries to keep records of work-related injuries and illnesses at their establishments. Employers covered by these rules must prepare an injury and illness report for each case (Form 301), compile a log of these cases (Form 300), and complete and post in the workplace an annual summary of work-related injuries and illnesses (Form 300A).
OSHA currently obtains the injury and illness data entered on the three recordkeeping forms only through onsite inspections, which collect only the data from the individual establishment being inspected, or by inclusion of an establishment in a survey pursuant to the previous 29 CFR 1904.41,
Annual OSHA injury and illness survey of ten or more employers.
From 1997 to 2012, OSHA used the authority in the previous § 1904.41 to collect establishment-specific injury and illness data through the OSHA Data Initiative (ODI). Through the ODI, OSHA requested injury and illness data from approximately 80,000 larger establishments (20 or more employees) in selected industries each year.
The ODI collected only the aggregate data from the 300A annual summary form, and the data were not required to be submitted electronically. OSHA used the information obtained through the ODI to identify and target the most hazardous worksites.
The Department of Labor also collects occupational injury and illness data through the annual Survey of Occupational Injuries and Illnesses (SOII), which is conducted by the Bureau of Labor Statistics (BLS) pursuant to 29 CFR 1904.42,
Requests from the Bureau of Labor Statistics for data.
The SOII provides annual rates and numbers of work-related injuries and illnesses, but BLS is prohibited from releasing establishment-specific data to OSHA or the general public. The final rule does not affect the SOII.
OSHA's recordkeeping regulation currently covers more than 600,000 employers with approximately 1,300,000 establishments. Although the OSH Act gives OSHA the authority to require all employers covered by the Act to keep records of employee injuries and illnesses, two classes of employers are partially-exempted from the recordkeeping requirements in part 1904. First, as provided in § 1904.1, employers with 10 or fewer employees at all times during the previous calendar year are partially exempt from keeping OSHA injury and illness records. Second, as provided in § 1904.2, establishments in certain lower-hazard industries are also partially exempt. Partially-exempt employers are not required to maintain OSHA injury and illness records unless required to do so
by OSHA under the previous § 1904.41 or by BLS under § 1904.42.
The records required by part 1904 provide important information to OSHA, as well as to consultants in OSHA's On-Site Consultation Program. However, OSHA enforcement programs currently do not have access to the information in the records required by part 1904 unless the establishment receives an onsite inspection from OSHA or is part of an OSHA annual survey under the previous § 1904.41. At the beginning of an inspection, an OSHA representative reviews the establishment's injury and illness records to help focus the inspection on the safety and health hazards suggested by the records. (OSHA consultants conduct a similar review when an establishment has requested a consultation.) OSHA has used establishment-specific injury and illness information obtained through the ODI to help target the most hazardous worksites.
1. OSHA Data Initiative (ODI)
In the past, OSHA has used the authority in previous § 1904.41 to conduct injury and illness surveys of employers through the ODI. The purpose of the ODI was to collect data on injuries and acute illnesses attributable to work-related activities in private-sector industries from approximately 80,000 establishments in selected high-hazard industries. The Agency used these data to calculate establishment-specific injury/illness rates, and in combination with other data sources, to target enforcement and compliance assistance activities. The ODI consisted of larger establishments (20 or more employees) in the manufacturing industry and in an additional 70 non-manufacturing industries. These are industries with historically high rates of occupational injury and illness. Typically, there were over 180,000 unique establishments subject to participation in the ODI. The ODI was designed so that each eligible establishment received the ODI survey at least once every three-year cycle. In a given year, OSHA would send the ODI survey to approximately 80,000 establishments (1.1 percent of all establishments nationwide), which typically accounted for approximately 700,000 recordable injuries and illnesses (19 percent of injuries and illnesses recorded by employers nationwide).
The ODI survey collected the following data from the Form 300A (annual summary) from each establishment:
• Number of cases (total number of deaths, total number of cases with days away from work, total number of cases with job transfer or restrictions, and total number of other recordable cases);
• Number of days (total number of days away from work and total number of days of job transfer or restriction);
• Injury and illness types (total numbers of injuries, skin disorders, respiratory conditions, poisonings, hearing loss, and all other illnesses);
• Establishment information (name, street address, industry description, SIC or NAICS code, and employment information (annual average number of employees, and total hours worked by all employees));
• Contact information (Company contact name, title, telephone number, and date).
Employers had the option of submitting their data on paper forms or electronically. OSHA then calculated establishment-specific injury and illness rates and used the rates in its Site-Specific Targeting (SST) enforcement program and High Rate Letter outreach program. The Agency also made the establishment-specific data available to the public through its Web site at
http://www.osha.gov/pls/odi/establishment_search.html
and through President Obama's Open Government Initiative at Data.gov (
http://www.data.gov/raw/1461
).
2. BLS Survey of Occupational Injuries and Illnesses (SOII)
The primary purpose of the SOII is to provide annual information on the rates and numbers of work-related non-fatal injuries and illnesses in the United States, and on how these statistics vary by incident, industry, geography, occupation, and other characteristics. The Confidential Information Protection and Statistical Efficiency Act of 2002 (Pub. L. 107-347, Dec. 17, 2002) prohibits BLS from releasing establishment-specific data to the general public or to OSHA.
Each year, BLS collects data from the three recordkeeping forms from a scientifically-selected probability sample of about 230,000 establishments, covering nearly all private-sector industries, as well as state and local government. Employers may submit their data on paper forms or electronically. As stated above, the final rule will not affect the authority for the SOII.
3. OSHA Access to Establishment-Specific Injury and Illness Information
OSHA currently has only a limited ability to obtain part 1904 records, or the establishment-specific injury and illness information included on these forms. Right now, OSHA can access the information in three limited ways.
First, OSHA is able to obtain establishment-specific injury and illness information from employers through workplace inspections. OSHA inspectors examine all records kept under part 1904, including detailed information about specified injuries and illnesses. However, each year, OSHA inspects only a small percentage of all establishments subject to OSHA authority. For example, in Fiscal Year 2014, OSHA and its state partners inspected approximately 1 percent of establishments under OSHA authority (approximately 83,000 inspections, out of approximately 8 million total establishments). As a result, the Agency is not able to compile a comprehensive and timely database of establishment-specific injury/illness information from inspection activities.
Second, OSHA has been able to obtain establishment-specific injury and illness information from employers through the ODI. However, because the ODI collected only summary data from the Form 300A, it did not enable OSHA to identify specific hazards or problems in establishments included in the ODI. In addition, the data were not timely. The injury/illness information in each year's Site-Specific Targeting Program came from the previous year's ODI, which collected injury/illness data from the year before that. As a result, OSHA's site-specific targeting typically was based on injury/illness data that were two or three years old. Additionally, the group of 80,000 establishments in a given year's ODI was a very small fraction of establishments subject to OSHA oversight.
Finally, OSHA is able to obtain limited establishment-specific injury and illness information from employers through 29 CFR 1904.39,
Reporting fatalities, hospitalizations, amputations, and losses of an eye as a result of work-related incidents to OSHA.
OSHA's current regulation requires employers to report work-related fatalities to OSHA within 8 hours of the event. The regulation also requires employers to report work-related in-patient hospitalizations, amputations, and losses of an eye to OSHA within 24 hours of the event. These most severe workplace injuries and illnesses are fortunately rare. OSHA receives fewer than 2,000 establishment-specific reports of fatalities each year. From January 1, 2015, to April 10, 2015, OSHA had received roughly 2,270 reports of single in-patient hospitalizations, 750 reports of amputations, and 4 reports of a loss of
an eye. These fatality/severe injury reports do not include the establishment's injury and illness records unless OSHA also collects these records during a subsequent inspection.
Given the above, OSHA currently obtains limited establishment-specific injury and illness information from an establishment in a particular year only if the establishment was inspected or was part of the ODI.
As noted above, OSHA does obtain aggregate information from the injury and illness records collected through the BLS SOII. SOII data have a time lag of almost a year, with data for a given year not available until November of the following year.
d. Benefits of Electronic Data Collection
The main purpose of this section of the final rule is to prevent worker injuries and illnesses through the collection and use of timely, establishment-specific injury and illness data. With the information obtained through this final rule, employers, employees, employee representatives, the government, and researchers may be better able to identify and mitigate workplace hazards and thereby prevent worker injuries and illnesses.
This final rule will support OSHA's statutory directive to “assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources” (29 U.S.C. 651(b)) “by providing for appropriate reporting procedures with respect to occupational safety and health which procedures will help achieve the objectives of this Act and accurately describe the nature of the occupational safety and health problem” (29 U.S.C. 651(b)(12)).
The importance of this rule in preventing worker injuries and illnesses can be understood in the context of workplace safety and health in the United States today. The number of workers injured or made ill on the job remains unacceptably high. According to the SOII, each year employees experience more than 3 million serious (requiring more than first aid) injuries and illnesses at work, and this number is widely recognized to be an undercount of the actual number of occupational injuries and illnesses that occur annually. As described above, OSHA currently has very limited information about the injury/illness risk facing workers in specific establishments, and this final rule increases the agency's ability to target those workplaces where workers are at greatest risk. However, even with improved targeting, OSHA Compliance Safety and Health Officers can inspect only a small proportion of the nation's workplaces each year, and it would take many decades to inspect each covered workplace in the nation even once. As a result, to reduce worker injuries and illnesses, it is of great importance for OSHA to increase its impact on the many thousands of establishments where workers are being injured or made ill but which OSHA does not have the resources to inspect. The final rule may accomplish this, through application of advances made in the field of behavioral economics in understanding and influencing decision-making in order to prevent worker injuries and illnesses. Specifically, the final rule recognizes that public disclosure of data can be a powerful tool in changing behavior. In this case, the objective of disclosure of data on injuries and illnesses is to encourage employers to abate hazards and thereby prevent injuries and illnesses, so that the employer's establishment can be seen by members of the public, including investors and job seekers, as one in which the risk to workers' safety and health is low.
OSHA believes that disclosure of and public access to these data will (using the word commonly used in the behavioral sciences literature) “nudge” some employers to abate hazards and thereby prevent workplace injuries and illnesses, without OSHA having to conduct onsite inspections (
see
the book
Nudge: Improving Decisions About Health, Wealth, and Happiness,
by Richard H. Thaler and Cass R. Sunstein (Penguin Books, 2009)).
The application of behavioral science insights to the prevention injuries and illnesses is consistent with Executive Order 13707 “Using Behavioral Insights to Better Serve the American People,” which states, “(a) Executive departments and agencies (agencies) are encouraged to (i) identify policies, programs, and operations where applying behavioral science insights may yield substantial improvements in public welfare, program outcomes, and program cost effectiveness.”
This approach is also consistent with other Administration policies, including:
• Executive Order 13563, which states, “Where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, each agency shall identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. These approaches include warnings, appropriate default rules, and disclosure requirements as well as provision of information to the public in a form that is clear and intelligible.”
• The September 8, 2011 memorandum from Cass R. Sunstein, Administrator of the Office of Information and Regulatory Affairs, entitled “Informing Consumers through Smart Disclosure”, which provides guidance to agencies on how to promote smart disclosure, defined as “the timely release of complex information and data in standardized, machine readable formats in ways that enable consumers to make informed decisions.”
In addition, the rule is consistent with President Obama's Open Government Initiative. In his Memorandum on Transparency and Open Government, issued on January 21, 2009, President Obama instructed the Director of the Office of Management and Budget (OMB) to issue an Open Government Directive. On December 8, 2009, OMB issued a Memorandum for the Heads of Executive Departments and Agencies, Open Government Directive, which requires federal agencies to take steps to “expand access to information by making it available online in open formats.” The Directive also states that the “presumption shall be in favor of openness (to the extent permitted by law and subject to valid privacy, confidentiality, security, or other restrictions).” In addition, the Directive states that “agencies should proactively use modern technology to disseminate useful information, rather than waiting for specific requests under FOIA.”
A requirement for the electronic submission of recordkeeping data will help OSHA encourage employers to prevent worker injuries and illnesses by greatly expanding OSHA's access to the establishment-specific information employers are already required to record under part 1904. As described in the previous section, OSHA currently does not have systematic access to this information. OSHA has limited access to establishment-specific injury and illness information in a particular year. Typically, OSHA only had access if the establishment was inspected or was part of an OSHA injury and illness survey. In addition, the injury and illness data collected through the ODI were summary data only and not timely.
The final rule's provisions requiring regular electronic submission of injury and illness data will allow OSHA to obtain a much larger data set of more timely, establishment-specific information about injuries and illnesses in the workplace. This information will help OSHA use its enforcement and compliance assistance resources more effectively by enabling OSHA to identify
the workplaces where workers are at greatest risk.
For example, OSHA will be better able to identify small and medium-sized employers who report high overall injury/illness rates for referral to OSHA's free on-site consultation program. OSHA could also send hazard-specific educational materials to employers who report high rates of injuries or illnesses related to those hazards, or letters notifying employers that their reported injury/illness rates were higher than the industry-wide rates. A recent evaluation by Abt Associates of OSHA's practice of sending referral letters to high-hazard employers identified by OSHA through the ODI confirmed the value of these letters in increasing the number of workplaces requesting a consultation visit (Ex. 1833). OSHA has also found that such high-rate notification letters were associated with a 5 percent decrease in lost workday injuries and illnesses in the following three years. In addition, OSHA will be able to use the information to identify emerging hazards, support an Agency response, and reach out to employers whose workplaces might include those hazards.
The final rule will also allow OSHA to more effectively target its enforcement resources to establishments with high rates or numbers of workplaces injuries and illnesses, and better evaluate its interventions. Prior to 1997, OSHA randomly selected establishments in hazardous industries for inspection. This targeting system was based on aggregated industry data. Relatively safe workplaces in high-rate industries were selected for inspection as well as workplaces that were experiencing high rates of injuries and illnesses. In 1997, OSHA changed its method of targeting general-industry establishments for programmed inspections. The Agency began using establishment-specific injury and illness data collected through the OSHA Data Initiative (ODI) to identify and target for inspection individual establishments that were experiencing high rates of injury and illness. OSHA's Site-Specific Targeting (SST) program has been OSHA's main programmed inspection plan for non-construction workplaces from 1997 through 2014. OSHA intends to use the data collected under this final rule in the same manner for targeting inspections. This rule greatly expands the number and scope of establishments that will provide the Agency with their injury and illness data. As a result, the Agency will be able to focus its inspection resources on a wider population of establishments. The data collection will also enable the Agency to focus its Emphasis Program inspections on establishments with high injury and illness rates, as it did for the National Emphasis Program (NEP) addressing hazards in Nursing Homes (
see
CPL 03-00-016, April 5, 2012).
The new collection will provide establishment-specific injury and illness data for analyses that are not currently possible with the data sets from inspections, the ODI, and reporting of fatalities and severe injuries. For example, OSHA could analyze the data collected under this system to answer the following questions:
1. Within a given industry, what are the characteristics of establishments with the highest injury or illness rates (for example, size or geographic location)?
2. Within a given industry, what are the relationships between an establishment's injury and illness data and data from other agencies or departments, such as the Wage and Hour Division, the Environmental Protection Agency, or the Equal Employment Opportunities Commission?
3. Within a given industry, what are the characteristics of establishments with the lowest injury or illness rates?
4. What are the changes in types and rates of injuries and illnesses in a particular industry over time?
Furthermore, without access to establishment-specific injury and illness data, OSHA has had great difficulty evaluating the effectiveness of its enforcement and compliance assistance activities. Having these data will enable OSHA to conduct rigorous evaluations of different types of programs, initiatives, and interventions in different industries and geographic areas, enabling the agency to become more effective and efficient. For example, OSHA believes that some employers who have not been inspected, but who learn about the results (include monetary penalties) of certain OSHA's inspections in the same industry or geographic area, may voluntarily abate hazards out of concern that they will be the target of a future inspection. Access to these data will allow OSHA to compare injuries and illnesses at non-inspected establishments in the same industry or geographic areas as the inspected ones.
Publication of worker injury and illness data will encourage employers to prevent injuries and illnesses among their employees through several mechanisms:
First, the online posting of establishment-specific injury and illness information will encourage employers to improve workplace safety and health to support their reputations as good places to work or do business with. Many corporations now voluntarily report their worker injury and illness rates in annual “Sustainability Reports”, in order to show investors, stakeholders, and the public that they are committed to positive social values, including workplace safety and health. Public access to these data will help address a well-known information problem present in all voluntary reporting initiatives: Voluntary disclosure tends to lead those with the worst records to underreport outcomes. By requiring complete, accurate reporting, interested parties will be able to gauge the full range of injury and illness outcomes.
Second, these data will be useful to employers who want to use benchmarking to improve their own safety and health performance. Under OSHA's current recordkeeping regulation, employers have access only to their own data, aggregate injury/illness data in the SOII, historic summary data from establishments in the ODI, and other severe injury/illness event reports. Using data collected under this final rule, employers can compare injury and illness rates at their establishments to those at comparable establishments, and set workplace safety/health goals benchmarked to the establishments they consider most comparable.
Third, online availability of establishment-specific injury and illness information will allow employees to compare their own workplaces to the safest workplaces in their industries. Further, while the current access provisions of the part 1904 regulation provide employees the right to access the information on the part 1904 recordkeeping forms, evidence shows that few employees exercise this right. During 2,836 inspections conducted by OSHA between 1996 and 2011 to assess the injury and illness recordkeeping practices of employers, 2,599 of the recordkeepers interviewed (92 percent) indicated that employees never requested access to the records required under part 1904. OSHA believes that employees in establishments with 250 or more employees will access and make use of the data more frequently when the case-specific information is available without having to request the information from their employers. Uninhibited access to the information will allow employees in these establishments to better identify hazards within their own workplace and to take actions to have the hazards abated. In addition, if employees preferentially choose employment at the safest
workplaces in their industries, then employers may take steps to improve workplace safety and health (preventing injuries and illnesses from occurring) in order to attract and retain employees.
Fourth, access to these data will improve the workings of the labor market by providing more complete information to job seekers, and, as a result, encourage employers to abate hazards in order to attract more desirable employees. Potential employees currently have access only to the limited injury/illness information currently available to the public, as discussed above. Injury and illness data for the vast majority of establishments are not publicly available. Using data newly accessible under this final rule, potential employees could examine the injury and illness records of establishments where they are interested in working, to help them make a more informed decision about a future place of employment. This would also encourage employers with more hazardous workplaces in a given industry to make improvements in workplace safety and health to prevent injuries and illnesses from occurring, because potential employees, especially the ones whose skills are most in demand, might be reluctant to work at more hazardous establishments. In addition, this would help address a problem of information asymmetry in the labor market, where the businesses with the greatest problems have the lowest incentive to self-disclose.
Fifth, access to data will permit investors to identify investment opportunities in firms with low injury and illness rates. If investors believe that firms that have low rates outperform firms with higher rates, presumably because the low-rate firms are better managed, and they preferentially invest in firms with low rates, then employers may take steps to improve workplace safety and health and prevent injuries and illnesses from occurring in order to attract investment.
Sixth, using data collected under this final rule, members of the public will be able to make more informed decisions about current and potential places with which to conduct business. For example, potential customers might choose to patronize only the businesses in a given industry with the lowest injury/illness rates. This is not possible at present because, as noted above, the general public has access only to very limited injury and illness data. Such decisions by customers would also encourage establishments with higher injury/illness rates in a given industry to improve workplace safety in order to become more attractive to potential customers.
Finally, in large construction contracts, particularly those involving work contracted for by state and local governments, preference is often given to subcontractors with lower injury and illness rates. In some cases, employers with rates above a certain level are not eligible for the contract work. Public disclosure of employers' injury and illness rates will be to enable corporate and individual customers to consider these rates in the selection of vendors and contractors. These data will also be useful to people who believe that low injury rates are correlated with high production quality, and who therefore prefer to purchase products made by manufacturers with low injury rates (Paul S. Adler, 1997) (Ex. 1832).
Disclosure of and access to injury and illness data have the potential to improve research on the distribution and determinants of workplace injuries and illnesses, and therefore to prevent workplace injuries and illnesses from occurring. Like the general public, researchers currently have access only to the limited injury/illness data described above. Using data collected under this final rule, researchers might identify previously unrecognized patterns of injuries and illnesses across establishments where workers are exposed to similar hazards. Such research would be especially useful in identifying hazards that result in a small number of injuries or illnesses in each establishment but a large number overall, due to a wide distribution of those hazards in a particular area, industry, or establishment type. Data made available under this final rule may also allow researchers to identify patterns of injuries or illnesses that are masked by the aggregation of injury/illness data in the SOII.
The availability of establishment-specific injury and illness data will also be of great use to county, state and territorial Departments of Health and other public institutions charged with injury and illness surveillance. In particular, aggregation of establishment-specific injury and illness reports and rates from similar establishments will facilitate identification of newly-emerging hazards that would not easily be identified without linkage to specific industries or occupations. There are currently no comparable data sets available, and these public health surveillance programs must primarily rely on reporting of cases seen by medical practitioners, any one of whom would rarely see enough cases to identify an occupational etiology.
Workplace safety and health professionals might use data published under this final rule to identify establishments whose injury/illness records suggest that the establishments would benefit from their services. In general, online access to this large database of injury and illness information will support the development of innovative ideas for improving workplace safety and health, and will allow everyone with a stake in workplace safety and health to participate in improving occupational safety and health.
Furthermore, because the data will be publicly available, industries, trade associations, unions, and other groups representing employers and workers will be able to evaluate the effectiveness of privately-initiated injury and illness prevention initiatives that affect groups of establishments. In addition, linking these data with data residing in other administrative data sets will enable researchers to conduct rigorous studies that will increase our understanding of injury causation, prevention, and consequences. For example, by combining these data with data collected in the Annual Survey of Manufactures (conducted by the United States Census Bureau), it will be possible to examine the impact of a range of management practices on injury and illness rates, as well as the impact of injury and illness rates on the financial status of employers.
Finally, public access to these data will enable developers of software and smartphone applications to develop tools that facilitate use of these data by employers, workers, researchers, consumers and others. Examples of this in other areas is the use of OSHA and Wage and Hour Division violation information in the “Eat/Shop/Sleep” smartphone application and, in public transit, the wide-scale private development of applications for real-time information on bus and subway arrivals using public information.
This final rule will also improve the accuracy of the recorded data. Section 1904.32 already requires company executives subject to part 1904 requirements to certify that they have examined the annual summary (Form 300A) and that they reasonably believe, based on their knowledge of the process by which the information was recorded, that the annual summary is correct and complete. OSHA recognizes that most employers are diligent in complying with this requirement. However, a minority of employers is less diligent; in recent years, one-third or more of violations of § 1904.32, and up to one-tenth of all recordkeeping (part 1904)
violations, have involved this certification requirement. It is OSHA's belief that, if this minority of employers knows that their data must be submitted to the Agency and may also be examined by members of the public, then they will pay more attention to the requirements of part 1904, which could lead both to improvements in the quality and accuracy of the information and to better compliance with § 1904.32.
Finally, the National Advisory Committee on Occupational Safety and Health (NACOSH), composed of representatives of employers, workers, and the public, has expressed its support of the efforts of OSHA in consultation with NIOSH to modernize the system for collection of injury and illness data to assure that it is timely, complete, and accurate, as well as both accessible and useful to employers, employees, responsible government agencies, and members of the public.
e. Publication of Electronic Data
As discussed above, OSHA intends to make the data it collects public. As discussed below, the publication of specific data elements will in part be restricted by applicable federal law, including provisions under the Freedom of Information Act (FOIA), as well as specific provisions within part 1904. OSHA will make the following data from the various forms available in a searchable online database:
Form 300A (Annual Summary Form)
—All collected data fields will be made available. In the past, OSHA has collected these data under the ODI and during OSHA workplace inspections and released them in response to FOIA requests. The annual summary form is also posted at workplaces under § 1904.32(a)(4) and (b)(5). OSHA currently posts establishment-specific injury and illness rates calculated from the data collected through the ODI on OSHA's public Web site at
http://www.osha.gov/pls/odi/establishment_search.html
. The 300A annual summary does not contain any personally-identifiable information.
Form 300 (the Log)
—All collected data fields on the 300 Log will generally be made available on the Web site. Employee names will not be collected. OSHA occasionally collects these data during inspections as part of the enforcement case file. OSHA generally releases these data in response to FOIA requests. Also, § 1904.29(b)(10) prohibits release of employees' names and personal identifiers contained in the forms to individuals other than the government, employees, former employees, and authorized representatives. OSHA does not currently conduct a systematic collection of the information on the 300 Log.
Form 301 (Incident Report)
—All collected data fields on the right-hand side of the form (Fields 10 through 18) will generally be made available. The Agency currently occasionally collects the form for enforcement case files. OSHA generally releases these data in response to FOIA requests. Section 1904.35(b)(2)(v)(B) prohibits employers from releasing the information in Fields 1 through 9 (the left-hand side of the form) to individuals other than the employee or former employee who suffered the injury or illness and his or her personal representatives. Similarly, OSHA will not publish establishment-specific data from the left side of Form 301. OSHA does not release data from Fields 1 through 9 in response to FOIA requests. The Agency does not currently conduct a systematic collection of the information on the Form 301. However, the Agency does review the entire Form 301 during some workplace inspections and occasionally collects the form for inclusion in the enforcement case file. Note that OSHA will not collect or publish Field 1 (employee name), Field 2 (employee address), Field 6 (name of treating physician or health care provider), or Field 7 (name and address of non-workplace treating facility).
While OSHA intends to make the information described above generally available, the Agency also wishes to emphasize that it does not intend to release personally identifiable information included on the forms. For example, in some cases, information entered in Column F (Describe injury or illness, parts of body affected, and object/substance that directly injured or made person ill) of the 300 Log contains personally-identifiable information, such as an employee's name or Social Security Number. As a result, OSHA plans to review the information submitted by employers for personally-identifiable information. As part of this review, the Agency will use software that will search for and de-identify personally identifiable information before OSHA posts the data.
It should also be noted that other federal agencies post establishment-specific health and safety data with personal identifiers, including names. For example, the Mine Safety and Health Administration (MSHA) publishes information gathered during the agency's investigations of fatal accidents. MSHA's Preliminary Report of Accident, Form 7000-13, provides information on fatal accidents including the employee's name, age, and a description of the accident. MSHA also publishes the written Accident Investigation Report, which details the nature and causes of the accident and includes the names of other employees involved in the fatal incident.
The Federal Railroad Administration (FRA) posts Accident Investigation Reports filed by railroad carriers under 49 U.S.C. 20901 or made by the Secretary of Transportation under 49 U.S.C. 20902; in the case of highway-rail grade crossing incidents, these reports include personally identifiable information (age and gender of the person(s) in the struck vehicle).
Finally, the Federal Aviation Administration (FAA) posts National Transportation Safety Board (NTSB) reports about aviation accidents. These reports include personally identifiable information about employees, including job history and medical information.
B. The Proposed Rule
The proposed rule would have amended OSHA's existing recordkeeping regulation at § 1904.41 to add three new electronic reporting requirements. First, OSHA would have required establishments that are required to keep injury and illness records under part 1904, and had 250 or more employees in the previous calendar year, to electronically submit information from these records to OSHA or OSHA's designee, on a quarterly basis (
proposed § 1904.41(a)(1)—Quarterly electronic submission of part 1904 records by establishments with 250 or more employees
).
Second, OSHA would have required establishments that are required to keep injury and illness records under part 1904, had 20 or more employees in the previous calendar year, and are in certain designated industries, to electronically submit the information from the OSHA annual summary form (Form 300A) to OSHA or OSHA's designee, on an annual basis (
proposed § 1904.41(a)(2)—Annual electronic submission of OSHA annual summary form (Form 300A) by establishments with 20 or more employees in designated industries
). This second submission requirement would have replaced OSHA's annual illness and injury survey, authorized by the then-current version of 29 CFR 1904.41.
Third, OSHA would have required all employers who receive notification from OSHA to electronically submit specified information from their part 1904 injury and illness records to OSHA or OSHA's designee (
proposed § 1904.41(a)(3)—Electronic submission of part 1904 records upon notification
).
As previously discussed, in addition to the new requirements for electronic
submission of part 1904 data, the preamble to the proposed rule stated that OSHA intended to make the collected data public in order to make the data useful to employers, employees, and the public in dealing with safety and health issues. OSHA also stated in the preamble to the proposed rule that the publication of specific data elements would have been restricted in part by provisions under the Freedom of Information Act (FOIA) and the Privacy Act, as well as specific provisions within part 1904. OSHA proposed to make the following data from the various forms available in a searchable online database:
Form 300A—
All fields could have been made available. Form 300A does not contain any personally identifiable information.
Form 300 (the Log)
—All fields could have been made available except for Column B (the employee's name).
Form 301 (Incident Report)
—All fields on the right-hand side of the form (Fields 10 through 18) could typically have been made available.
C. Comments on the Proposed Rule
There were many comments supporting the proposed rule. Many commenters commented that the collection of recordkeeping data would allow OSHA to improve workplace safety and health and prevent injuries and illnesses. Other commenters commented that publication of information provided by the electronic submission of recordkeeping data from covered establishments would allow employers, employees, researchers, unions, safety and health professionals, and the public to improve workplace safety and health. There were also comments that the proposed rule was consistent with the actions of other federal and state agencies, which already require the submission of health and safety data.
However, many commenters also raised potential concerns about the proposed rule. Some commenters expressed concerns about the implications of the publication of safety and health data for employee privacy. There were also comments about the implications of the proposed rule for employer privacy, especially with regard to confidential commercial information. Other commenters commented that OSHA underestimated the cost to businesses of implementing the proposed rule, especially the proposed requirement that would have required large establishments to submit data on a quarterly basis. In addition, some commenters commented that the data provided to OSHA and to the public as a result of this rule would not be beneficial.
OSHA addresses all of the issues raised by commenters below.
Alternatives Included in the Proposed Rule
In the preamble to the proposed rule, in addition to providing proposed regulatory text, OSHA stated that it was considering several alternatives. [78 FR 67263-65270]. OSHA requested comment on the following regulatory alternatives.
Alternative A—Monthly Submission Under Proposed § 1904.41(a)(1)
In Alternative A, OSHA considered requiring monthly submission instead of quarterly submission from establishments with 250 or more employees.
However, almost all commenters opposed this alternative. Several commenters expressed concerns about the burdens of monthly submission on employers (Exs. 1211, 1112). Several commenters also expressed concerns about the effects of monthly submission on data quality (Exs. 1211, 1385, 1397). Other commenters commented that monthly reporting would not provide much, if any, benefit over quarterly reporting (Exs. 1384, 1391).
Ashok Chandran provided the only comment in support of this alternative. He commented that “[m]ore frequent reporting will actually prevent distortion, as fewer reports would increase the chance of a limited sample misrepresenting the conditions of an establishment. So long as OSHA does not use reports in isolation to trigger investigation, this risk is low” (Ex. 1393).
OSHA agrees with commenters who stated that monthly reporting would increase the burden on employers and could result in the submission of less accurate recordkeeping data. Given the potential extra burden without an added benefit, OSHA has decided not to adopt Alternative A from the proposed rule. As explained below, the final rule requires annual electronic submission of part 1904 records by establishments with 250 or more employees.
Alternative B—Annual Submission Under Proposed § 1904.41(a)(1)
In Alternative B, OSHA considered requiring annual submission for establishments with 250 or more employees instead of quarterly submission.
Most commenters supported Alternative B, on grounds that annual reporting would provide better-quality, more useful data and would be less burdensome for both employers and OSHA.
Commenters provided various reasons to support the idea that annual reporting would provide better-quality data. First, some commenters commented that one quarter is too short a period of time to generate meaningful data (Exs. 0258, 1338, 1385, 1399, 1413). For example, the American Meat Institute commented that “breaking the data into quarterly `bites' will produce numbers with no comparative value . . . In fact, it is more likely to generate misleading, incorrect information because injury and illness incidents typically occur on a much more random basis than is reflected in what would amount to three-month `snapshots' ” (Ex. 0258).
Second, some commenters commented that quarterly reporting was more likely to lead to underreporting. The Allied Universal Corporation commented that “[w]ith quarterly reporting, employers are unlikely to record close cases because, in many instances, striking them later may be impossible as the information has already been reported and posted publicly by OSHA. Rather than assume such an additional burden, employers will likely err on the side of not recording those incidents where in doubt” (Ex. 1192). The American Chemistry Council, the Association of Energy Service Companies (AESC), and the International Association of Amusement Parks and Attractions (IAAPA) provided similar comments (Exs. 1092, 1323, 1427).
Third, several commenters commented that quarterly reporting would not provide enough time for employers to complete cases and catch data mistakes (Exs. 0035, 0247, 1110, 1206, 1214, 1339, 1379, 1385, 1389, 1399, 1405, 1406). For example, the Glass Packaging Institute commented that “[t]he data is not static but will be a moving data set and consequently of little value for evaluation or decisions. Cases are added, deleted, change with time as information and cases and/or treatment improve or worsen” (Ex. 1405).
ORCHSE Strategies, LLC commented that “[employers] also review the data at the end of the year to insure its accuracy before it is included in company reports or submitted to OSHA or to BLS. They check on outstanding cases; track day-counts for cases involving restricted work activity, job transfer, and days away from work; check on ongoing employee job limitations; prepare estimates of future days that will be lost or restricted (beyond the end of the year) etc.” (Ex. 1339). In addition, the American Petroleum Institute
commented that “29 CFR 1904.32 requires annual certification of the 300 Forms and the quarterly submittals would not be certified; thus, [OSHA] would be relying on potentially inaccurate information” (Ex. 1214).
As for the usefulness of data provided by quarterly reporting, many commenters stated that there is no evidence of benefits of quarterly reporting over annual reporting for worker safety and health (Exs. 0156, 0258, 1110, 1126, 1206, 1210, 1221, 1225, 1322, 1339, 1406, 1412). For example, the North American Insulation Manufacturers Association (NAIMA) commented that “OSHA has failed to demonstrate that the increased frequency of reporting will improve worker safety, especially by imposing a four-fold burden increase on both employer and agency personnel for quarterly rather than annual reporting. Indeed, it cannot document such a result because there is no connection between quarterly reporting and improved worker safety” (Ex. 1221). NAIMA also commented that “the delay for OSHA to scrub the data [of PII before publication] will likely obviate any perceived `timeliness' benefit OSHA might make in attempting to justify quarterly rather than annual data submission” (Ex. 1221). The Fertilizer Institute (TFI) and the Agricultural Retailers Association (ARA) provided similar comments (Ex. 1412).
OSHA also received comments that quarterly reporting would be overly burdensome for employers (Exs. 0247, 1112, 1126, 1206, 1210, 1214, 1221, 1332, 1338, 1339, 1379, 1389, 1390, 1405). For example, ORCHSE Strategies, LLC commented that “[v]erification is often an iterative process that involves back-and-forth between the corporate safety department and the site, with involvement of medical practitioners, the injured or ill employee, supervisors and others. Shifting from a single data submission to four data submissions per year would add substantially to the already significant cost and burden for these employers (at least by a factor of four). It would also complicate the process; employers would have to create estimated day counts for cases that are not closed at the time of each reporting and then correct them when the cases are finally resolved” (Ex. 1339).
The Association of Union Constructors (TAUC) commented that “[w]ith a proposed quarterly reporting frequency, often cases in the construction industry may not be resolved quickly and there is no method of recourse if the employer is found not at fault once the raw data is public . . . A lag in the period of time between updating and posting of injury/illness data could impose punitive consequences to the contractor if the public or customers are reviewing their data in real time” (Ex. 1389). In addition, the Environmental, Health & Safety Communications Panel (EHSCP) commented that quarterly reporting would be a burden for safety and health professionals and “strongly recommend[ed] that nothing more frequent than an annual submission be considered so as to minimize the time that safety and health professionals are required to devote to paperwork and data review rather than on proactive safety efforts” (Ex. 1331).
Commenters commented particularly about the resources needed for OSHA to remove PII from the collected data before publishing the data. For example, the North American Insulation Manufacturers Association (NAIMA) commented that “OSHA will tax its own resources to process, review, and scrub the data four times per year. This data will contain sensitive personal information, and OSHA will need to edit the data before making it public. To do this on a quarterly basis will be time consuming and resource intensive” (Ex. 1221). The Phylmar Regulatory Roundtable (PRR) questioned whether OSHA has the capacity to analyze quarterly data, commenting that “annual data submissions from 580,000 employers strike PRR as a large volume of data for OSHA to analyze. Multiplying that number by quarterly submissions has more potential for detriment than benefit” (Ex. 1110).
However, several commenters opposed Alternative B on grounds that quarterly data would be more useful and would not increase the burden on employers (Exs. 1211, 1381, 1384). The International Brotherhood of Teamsters commented that “[q]uarterly submissions will help identify emerging trends or serious incidents within a much more rapid timeframe than annual reporting, and allow for rapid intervention to stop such trends or respond to such incidents before they continue” (Ex. 1381). Similarly, the International Union (UAW) commented that “annual reporting would make it impossible to track seasonal variations in the type or rate of injuries and illnesses” (Ex. 1384).
In response, OSHA agrees with commenters who stated that annual reporting would lessen the burden on employers. OSHA believes that companies' review of the data at the end of the year will help to improve the accuracy of the submitted data, because employers are already required to certify their records at the end of the calendar year under current part 1904. In addition, OSHA agrees that annual reporting will provide more meaningful data, as well as higher-quality data, because employers will have more time to update and revise the data before reporting to OSHA. Finally, OSHA agrees with the commenters who stated that annual reporting would lessen the burden on OSHA, by reducing both the total volume of data and the amount of personally identifiable information to remove before publication. Therefore, unlike the proposed rule, which would have required quarterly submission by establishments with 250 or more employees, § 1904.41(a)(1) of the final rule requires annual electronic submission of part 1904 records by establishments with 250 or more employees.
Alternative C—One Year Phase-in of Electronic Reporting Under Proposed § 1904.41(a)(1)
In Alternative C, OSHA considered a phase-in of the electronic reporting requirement, under which establishments with 250 or more employees would have had the option of submitting data on paper forms for the first year the rule would have been in effect.
Several commenters opposed Alternative C on grounds that large companies affected by this rule should be able to electronically submit data in the first year, especially the Form 300 (Log) and 300A (annual summary). These commenters explained that submission of data in paper form would delay the processing and publication of the data (Exs. 1211, 1345, 1350, 1381, 1384, 1387, 1424). The International Brotherhood of Teamsters commented that “these companies are certainly large enough to handle the responsibility, and will receive the analytic benefits such a reporting system provides” (Ex. 1381). Other commenters stated that there should not be a phase-in of the electronic submission requirement because OSHA does not have the resources to process thousands of submitted paper forms (Exs. 1395, 1211).
However, other commenters supported Alternative C to provide time for employers and OSHA to come up with methods for protecting worker confidentiality. The International Union (UAW) commented that “OSHA may find it useful to have a phase-in period for submission of 301 reports by these employers to allow time for OSHA to come up with a method for scrubbing data to ensure worker confidentiality” (Ex. 1384). The United Food & Commercial Workers International
Union (UFCW) and the Services Employees International Union (SEIU) provided similar comments (Exs. 1345, 1387). FedEx Corporation commented that “if employers are required to collect Form 301 data, then given that the reporting of detailed injury and illness data is a wholly novel recordkeeping requirement which will require an investment of significant time and resources for implementation, FedEx supports a phase-in period of at
least
one-year” (Ex. 1338).
In response, OSHA agrees with commenters who stated that larger companies (those with 250 or more employees) have the resources to electronically submit injury and illness data to OSHA in the first year. According to commenters, in many cases, larger companies already keep OSHA injury and illness records electronically, so a requirement to submit such records electronically is not unduly burdensome (Exs. 1103, 1188, 1209, 1211, 1387, 1393, 1424) (
see
also Section VI Final Economic Analysis and Regulatory Flexibility Analysis).
OSHA also agrees with commenters who stated that the Agency does not have the resources to handle the large volumes of non-electronic data that Alternative C would have produced. Based on OSHA's experience with paper submissions to the ODI, the Agency estimates that processing a paper submission might take 2 minutes for the data from Form 300A and 1 minute for processing the actual paper form. In addition, based on BLS's experience with paper submissions to the SOII, the Agency estimates that processing each reported case in a paper submission might take 2 minutes. OSHA estimates that 33,000 establishments will be subject to final § 1904.41(a)(1), accounting for 713,000 reported cases. In addition, roughly 30 percent of the establishments in the ODI submitted their data on paper. Based on these estimates (3 minutes per paper submission; 2 minutes per case; 30 percent of establishments submit on paper; 33,000 establishments; 713,000 cases), OSHA estimates that the one-year paper submission phase-in option in Alternative C would account for 495 hours for the Form 300A and 7,130 hours for the cases, for a total of 7,625 hours, or almost four full-time employees at 2,000 hours per full-time employee. Under a more optimistic scenario assuming 10 percent of establishments submitting on paper, the one-year paper submission phase-in option in Alternative C would account for 165 hours for the Form 300A and 2,377 hours for the cases, for a total of 2,542 hours, or more than one full-time employee. Under either scenario, OSHA would be unable to make timely use of the data.
Additionally, with respect to commenters who stated that a phase-in would provide more time for employers and OSHA to develop methods to protect employee confidentiality, OSHA notes that a requirement that only provides for electronic submission of data will help the Agency search for and redact confidential information. As noted elsewhere in this preamble, OSHA will use existing software to remove personally identifiable information before posting data on the publicly-accessible Web site. Also as noted above, the proposed rule would have required establishments with 250 or more employees to electronically submit data on a quarterly basis, whereas § 1904.41(a)(1) of the final rule requires annual submission. This change will provide large employers with additional time to prepare for the first electronic submission of recordkeeping data on March 2, 2017. Accordingly, the final rule requires electronic submission of part 1904 records by establishments with 250 or more employees, without a phase-in period for paper submission.
Alternative D—Three Year Phase-in of Electronic Reporting Under Proposed § 1904.41(a)(2)
In Alternative D, OSHA considered a phase-in of the electronic reporting requirement, under which establishments with 20 or more employees in designated industries would have had the option of submitting data on paper forms for the first three years this rule would have been in effect.
All of the commenters who specifically commented on Alternative D supported a phased-in electronic submission requirement to allow smaller companies to adjust to electronic reporting. Different commenters supported a phase-in period of different lengths—one, two, or three years, or an unspecified “reasonable” period of time (Exs. 1206, 1211, 1338, 1350, 1353, 1384, 1387, 1424).
OSHA also received a comment from the American College of Environmental Medicine (ACEM) stating that OSHA should provide a phase-in for “employers who do not have access to the Internet pending full distribution of Internet services throughout the Nation” (Ex. 1327). The Dow Chemical Company commented that “a phase-in period should be provided for: At least one year after OSHA's web portal is created, debugged, tested and operational. However, a phase-in should consist of a period without a paper reporting requirement, so companies can deploy their resources toward developing the systems and information that will be necessary in order to report electronically” (Ex. 1189). The National Ready Mixed Concrete Association (NRMCA), International Association of Industrial Accident Boards and Commissions (IAIBC), and Bray International made similar comments (Exs. 0210, 1104, 1401).
OSHA agrees with the comments for Alternative C, above, that OSHA does not have the resources to handle the large volumes of non-electronic data that Alternative D would produce. As above, based on OSHA's experience with paper submissions to the ODI, the Agency estimates that processing a paper submission might take 2 minutes for the data from Form 300A and 1 minute for processing the actual paper. OSHA estimates that 430,000 establishments will be subject to final § 1904.41(a)(2). In addition, OSHA estimated that roughly 30 percent of the establishments in the ODI submitted their data on paper. Based on these estimates (3 minutes per paper submission; 30 percent of establishments submit on paper; 430,000 establishments), OSHA estimates that the three-year paper submission phase-in option in Alternative D would account for 6,450 hours per year for three years, or 19,350 hours total. Under a more optimistic scenario assuming 10 percent of establishments submitting on paper, the three-year paper submission phase-in option in Alternative D would account for 2,150 hours per year for three years, or 6,450 hours total. Under either scenario, OSHA would be unable to make timely use of the data.
As with Alternative C, immediate electronic reporting will make the data available to employers, the public, and OSHA in a timelier manner, because OSHA will not have to take the time to convert paper entries into electronic format. Also, an electronic format will make it much easier and faster for OSHA to prepare the data for publication. Therefore, the final rule requires annual electronic submission of the OSHA Form 300A by establishments with 20 or more employees, but fewer than 250 employees, in designated industries, without a phase-in period for paper submission.
With respect to commenters' concern about Internet availability, OSHA believes that establishments with 20 or more employees are highly likely to have access to the Internet, and the burden of electronic reporting is low.
Alternative E—Widen the Scope of Establishments Required To Report Under Proposed § 1904.41(a)(1)
In Alternative E, OSHA considered widening the scope of establishments required to report under this proposed section of the rule from establishments with 250 or more employees to establishments with 100 or more employees.
In support of Alternative E, commenters stated that increasing the number of establishments required to report would in turn increase public access to establishment-specific injury and illness data (Exs. 1211, 1395). There were also comments that lowering the size criterion to 100 employees would pose little burden on medium-sized facilities, because establishments of that size often already have standardized recordkeeping (Exs. 1211, 1358).
However, there were also comments opposing Alternative E due to employer burden and volume of data. For employer burden, the National Automobile Dealers Association (NADA) commented that “[u]nder no circumstances should the proposed threshold for quarterly reporting be expanded to include establishments with 100 or more employees. As noted above, the proposed mandate is unjustified at the proposed 250-employee threshold. Any expansion would just exacerbate the burden for a much larger universe of employers with no commensurate benefit” (Ex. 1392).
For volume of data, several commenters commented that OSHA should assess the effect of lowering the size criterion to 200 employees and that 250 employees should be the maximum size criterion. For example, the AFL-CIO commented that “the 250 employee cut-off should be the maximum cut-off for such reporting. We encourage the agency to examine the effect of lowering the establishment threshold to 200 employees to determine and assess the additional information that would be captured by such as change, particularly information from higher hazard industries that are of greater concern” (Ex. 1350). The International Brotherhood of Teamsters and the International Union, United Automobile, Aerospace and Agriculture Implement Workers of America (UAW) provided similar comments (Ex. 1381, 1384). The Service Employees International Union (SEIU) commented that “we believe 250 employees should be the maximum. We would support a phased in lowering of this number over several years to 100 employees as electronic reporting becomes even more routine and as the workforce continues to fragment into smaller units, as many expect” (Ex. 1387).
OSHA agrees with commenters who stated that reducing the size criterion to 100 would increase the burden on employers with diminishing benefit. The number of establishments that would be required to report under this proposed section under Alternative E would increase from 34,000 to 120,000. This alternative would also increase the number of injury and illness cases with incident report (OSHA Form 301) and Log (OSHA Form 300) data from 720,000 to 1,170,000. Therefore, like the proposed rule, the final rule requires electronic submission of all three recordkeeping forms by establishments with 250 or more employees.
Alternative F—Narrow the Scope of Establishments Required To Report Under Proposed § 1904.41(a)(1)
In Alternative F, OSHA considered narrowing the scope of establishments required to report under this section of the rule from establishments with 250 or more employees to establishments with 500 or more employees.
Several commenters supported Alternative F, on grounds that it would lower the burden of the rule. The National Council of Farmer Cooperatives (NCFC) commented that “[w]e encourage OSHA to broaden the scope of establishments that fall under this section from 250 to 500 employees, reducing the number of establishments burdened by quarterly reporting requirements” (Ex. 1353). FedEx Corporation provided a similar comment (Ex. 1338), adding that raising the size criterion to 500 employees would still provide OSHA with a “statistically significant pool of injury and illness data” (Ex. 1338).
However, Logan Gowdey commented that raising the size criterion from 250 employees to 500 employees would reduce “establishments covered from 38,000 to 13,800 and reports from 890,000 to 590,000. While the number of reports does not decrease that much, the number of establishments decreases dramatically, which will limit the importance of the data collected” (Ex. 1211).
OSHA agrees that Alternative F's great reduction in the number of establishments and employees covered by § 1904.41(a)(1) would reduce the utility of the data. Under Alternative F, the number of establishments that would be required to report under § 1904.41(a)(1) would decrease from 34,000 to 12,000. This alternative would also decrease the number of injury and illness cases with incident report (OSHA Form 301) and Log (OSHA Form 300) data from 720,000 to 495,000. Therefore, like the proposed rule, the final rule requires electronic submission of part 1904 records by establishments with 250 or more employees.
Alternative G—Three-Step Process of Implementing the Reporting Requirements Under Proposed § 1904.41(a)(1) and (2)
In Alternative G, OSHA considered a three-step process of implementing the reporting requirements under the proposed § 1904.41(a)(1) and (2).
For this proposed alternative, high-hazard industry groups (four-digit NAICS) would have been defined as having rates of injuries and illnesses involving days away from work, restricted work activity, or job transfer (DART) that are greater than 2.0. High-hazard industry sectors (two-digit NAICS) would have been defined as agriculture, forestry, fishing and hunting; utilities; construction; manufacturing; and wholesale trade.
In the first step of this three-step implementation process, reporting would have been required only from the establishments in proposed § 1904.41(a)(1) and (2) that are in high-hazard industry groups (four-digit NAICS with a DART rate greater than or equal to 2.0).
In the second step of the three-step implementation process, OSHA would have conducted an analysis, after a specified period of time, to assess the effectiveness, adequacy, and burden of the reporting requirements in the first step. The results of this analysis would then have guided OSHA's next actions.
The third step of the three-step implementation process would therefore have depended on the results of OSHA's analysis.
The only comment in support of Alternative G was from Southern Company, which commented that “[a] smaller pilot group of employers in historically the highest incident rates will allow OSHA to determine if its system works as intended” (Ex. 1413). Other commenters opposed Alternative G for various reasons, including scope, effectiveness, and implementation (Exs. 1211, 1350, 1381, 1384, 1387). For example, the International Brotherhood of Teamsters commented that “[w]e support the proposed approach rather than this confusing 3-step alternative. The current approach is a better means for capturing higher hazard industries
and establishments. The rule already has different requirements for different size employers. OSHA should keep this rule as simple as possible. Changing criteria through phase in would only complicate the implementation of the rule” (Ex. 1381).
In response, OSHA agrees that Alternative G would reduce the effectiveness of the rule, increase uncertainty for employers, and make implementation more difficult. Therefore, like the proposed rule, the final rule requires electronic submission of part 1904 records by establishments with 250 or more employees, and annual electronic submission of the Form 300A annual summary by establishments with 20 to 249 employees in designated industries, without the multi-step implementation process in this alternative.
Alternative H—Narrow the Scope of the Reporting Requirements Under Proposed § 1904.41(a)(1) and (2)
The proposed § 1904.41(a)(1) would have applied to all establishments with 250 or more employees in all industries covered by the recordkeeping regulation. The proposed § 1904.41(a)(2) would have applied to establishments with 20 or more employees in designated,
i.e.,
high-hazard industry groups (classified at the four-digit level in NAICS) and/or high-hazard industry sectors (classified at the two-digit level in NAICS). High-hazard industry groups (four-digit NAICS) would have been defined as industries with DART rates that are greater than or equal to 2.0. High-hazard industry sectors (two-digit NAICS) would have included agriculture, forestry, fishing and hunting; utilities; construction; manufacturing; and wholesale trade.
In Alternative H, OSHA considered an alternative approach to defining the industry scope of these two sections of the proposed rule, by limiting the industry coverage to include only industry groups that meet a designated DART cut-off. This approach would not have included coverage of designated industry sectors as a criterion.
Some commenters supported Alternative H as a way for OSHA to focus its efforts on high-hazard industry groups. For example, FedEx Corporation supported Alternative H with a DART cut-off rate of 3.0, commenting that “this would focus OSHA's limited resources on high hazard industries and employers with high DART rates” (Ex. 1338). The American Coatings Association (ACA) and the Reusable Industrial Packaging Association (RIPA) made similar comments (Exs. 1329, 1367).
The National Retail Federation (NRF) commented, “In NRF's view, both the 2.0 as well as the 3.0 DART rate are too low. NRF believes that, if OSHA is going to promulgate this standard at all, it should revise the proposed threshold DART rate to ensure that this rule is designed to focus attention on true high hazard industries . . . A DART cut-off of 3.6 derives from current data and is reasonably connected to the goal of the Proposed Regulation and any inspection plan that originates from the data collection” (Ex. 1328).
However, other commenters opposed Alternative H because it would greatly reduce the coverage of the rule (Exs. 1211, 1350, 1374 1381, 1384, 1387). The International Brotherhood of Teamsters commented, “We support the proposed approach rather than the alternative. The current approach is a better means for capturing higher hazard industries and establishments. Lowering [coverage] to industries with a DART rate of greater than/equal to 2.0 would reduce the number of smaller establishments covered by about 100,000 and the number of larger establishments covered by 16,000” (Ex. 1381).
The AFL-CIO commented that “[T]hese thresholds are too restrictive and limited. Indeed, according to the preamble, employing a DART threshold of 3.0 would cover fewer establishments (152,000) than are covered under the current ODI (160,000). The current ODI has employed a combination of 2 digit and 4 digit thresholds similar to the proposed rule. There is no reason to change this approach” (Ex. 1350).
UNITE HERE also expressed concerns that Alternative H would leave vulnerable workers at risk, commenting that “the alternative proposals to limit coverage to a DART threshold of 3.0 at the four digit level would result in excluding NAICS 7211—Traveler Accommodation. This industry sector is a growing sector with a growing workforce. Certain job titles are predominantly female, women of color and immigrant workers. We believe excluding 7211 would result in increased workplace injuries and illnesses and decreased prevention” (Ex. 1374).
OSHA believes that Alternative H would overly limit the scope of the rule and agrees with commenters who stated that there is no compelling reason to change the approach OSHA used in the ODI of using a combination of industrial classification levels to identify high-hazard industry sectors and groups. In addition, using a DART cut-off of 3.0 would result in having less establishment-specific data for establishments with 20 or more employees available to OSHA and the public. As stated in the preamble to the proposed rule, the intention of this rulemaking is to increase the amount of establishment-specific data reported to OSHA. Therefore, like the proposed rule, the final rule requires electronic submission of part 1904 records by establishments with 250 or more employees, as well as annual electronic submission of the OSHA Form 300A by establishments with 20 to 249 employees in designated high-hazard industries (four-digit NAICS) and industry sectors (two-digit NAICS).
Alternative I—Enterprise-Wide Submission
In the preamble to the proposed rule, OSHA stated that it was considering adding a provision that would have required some enterprises with multiple establishments to collect and submit some part 1904 data for those establishments. Alternative I would have applied to enterprises with a minimum threshold number of establishments (such as five or more) that are required to keep records under part 1904. These enterprises would have been required to collect OSHA Form 300A (annual summary) data from each of their establishments that are required to keep injury/illness records under part 1904. The enterprise would then have electronically submitted the data from each establishment to OSHA. For example, if an enterprise had seven establishments required to keep injury/illness records under part 1904, the enterprise would have submitted seven sets of data, one for each establishment.
OSHA also stated in the preamble to the proposed rule that Alternative I would have applied to enterprises with multiple levels within the organization. For example, if XYZ Chemical Inc. owns three establishments, but is itself owned by XYZ Inc., which has several wholly owned subsidiaries, then XYZ Inc. would have done the reporting for all establishments it controls. These requirements would have only applied to establishments within the jurisdiction of OSHA and subject to OSHA's recordkeeping regulation. Establishments within the corporate structure but located on foreign soil would not have been subject to the requirement in Alternative I.
There were general comments supporting Alternative I, opposing Alternative I, and providing suggestions about the implementation of Alternative I. The proposed rule also asked 16 specific questions related to Alternative I, and OSHA received comments addressing those questions as well.
Commenters who generally supported Alternative I did so for a variety of reasons, including more useful information, more corporate involvement in establishment-level prevention of workplace injuries and illnesses, and coordination with current OSHA enterprise-level efforts.
For more useful information, NIOSH commented that a 2006 study by Mendeloff
et al.
found that “firm size (or enterprise size) may be more important than establishment size in determining levels of risk . . . Theoretically, enterprise size may have a substantial impact on the ability to prevent injuries and illnesses. Business policies, practices, and strategies generally vary by size of employer, and large businesses may have more resources for protecting employee safety and health, and reducing workplace hazards and exposures compared with small businesses. Enterprise-level differences in occupational safety and health management systems may exist in specialization and expertise, development of training and reporting systems, amount of available data, and other factors” (Ex. 0216).
Several commenters commented that enterprise-level safety and health data would be extremely useful to OSHA as well as other groups (Exs. 0241, 1278, 1327, 1345, 1350, 1384, 1387). For example, Worksafe commented that this data would be “extremely useful, not only to OSHA but also to advocates, employers, employees, unions, and representatives to ensure improved identification and resolution of workplace health and safety hazards” (Ex. 1278). The National Safety Council (NSC) added that “[t]he value of benchmarking would be substantially enhanced if the Enterprise Wide Alternative is adopted. This option would allow for the calculation of enterprise wide rates and allow for more meaningful benchmarking among enterprises” (Ex. 0241).
There were also several comments about the scarcity of enterprise-level data, especially for OSHA. NIOSH commented that “few data are available at the enterprise level. This lack of data is a principal source of imprecision in defining small business. Greater clarity in measurement of both structure and size of employer would aid small business research and prevention efforts such as those conducted by the NIOSH Small Business Assistance and Outreach Program” (Ex. 0216). The AFL-CIO and Change to Win provided similar comments (Exs. 1350, 1380).
With respect to corporate involvement in establishment-level prevention of workplace injuries and illnesses, the American College of Occupational and Environmental Medicine commented that “enterprise-level reporting will increase the likelihood that the chief corporate officers are aware of potential variations in the safety of different business processes and establishment practices that put employees at risk. Greater corporate awareness may enhance corporate oversight and improve health and safety throughout all establishments” (Ex. 1327). The AFL-CIO and the Service Employees International Union (SEIU) provided similar comments (Exs. 1350, 1387).
For coordination with current OSHA enterprise-level efforts, the AFL-CIO commented that “[t]he concept of corporate level responsibility under the OSH Act is well-established. While the majority of OSHA's enforcement efforts are focused at the establishment level, the OSH Act itself and its obligations, including the recordkeeping requirements, apply to employers. For decades, OSHA has utilized corporate-wide settlements as a means to bring about compliance on a corporate-wide basis, and recently OSHA has attempted to utilize this corporate-wide approach in its initial enforcement actions. Under the current Severe Violator Enforcement Program (SVEP), violations at one establishment trigger expansion of oversight to other establishments of the same employer” (Ex. 1350). The Service Employees International Union (SEIU) provided a similar comment (Ex. 1387).
Finally, the United Steelworkers (USW) commented that “[e]nterprise wide data must retain discernible facility identification information so that stakeholders can determine which facility each injury or illness entry occurred [in]. This will provide stakeholders with the ability to determine where specific hazards exist and engage in efforts to eliminate or reduce these hazards” (Ex. 1424).
On the other hand, several commenters generally opposed implementation of Alternative I for various reasons, including the comparative ineffectiveness of enterprises versus establishments in promoting workplace health and safety, reduced data quality, employer burden, and legality (Exs. 1198, 1206, 1221, 1338).
For the effectiveness of enterprises versus establishments in promoting workplace health and safety, the Food Marketing Institute commented that “there are many corporate hierarchies in which there are `enterprises' above `establishments' that are not involved in or responsible for the safety controls in place at the establishments. Indeed, there are many instances in which a parent company may own 51% of the stock of a subsidiary but is in no way involved in that subsidiary's day-to-day activities” (Ex. 1198). The North American Insulation Manufacturers Association (NAIMA) provided a similar comment (Ex. 1221).
FedEx Corporation commented that “the safety resources in place at each FedEx operating company . . . are in the closest proximity to the unique day-to-day operations of their establishments, and are therefore best equipped to enhance the workplace safety of their employees” (Ex. 1338). Similarly, the Interstate Natural Gas Association of America (INGAA) also commented that “[i]t is well understood that separate establishments, even separate establishments that operate as part of a single larger enterprise, do not all operate the same: each establishment has different personnel, procedures, processes and protocols” (Ex. 1206).
There were also comments that enterprise-level data would not be useful for improving workplace safety and health (Exs. 1198, 1279, 1338, 1408, 1412). For example, the National Association of Home Builders (NAHB) commented that “OSHA claims that enterprise-wide submission of establishment data to the enterprise will improve communication and reporting between establishments and enterprises and this will lead to enterprise`s ability to solve establishment safety and health problems . . . Again, the agency has failed to establish any benefits for the proposed rulemaking . . . That is readily apparent here with OSHA`s proposed claims regarding the enterprise-wide alternative. OSHA fails to cite any example, research paper, case study, or journal article to support this claim” (Ex. 1408).
The National Association of Manufacturers (NAM) commented that “[t]here is no evidence suggesting that there is currently a lack of communication regarding safety and health between establishments and enterprises, nor is there any evidence that this alleged benefit will somehow reduce workplace injuries and illnesses” (Ex. 1279).
For data quality, the North American Insulation Manufacturers Association (NAIMA) commented that “[w]ith certain umbrella corporations holding levels upon levels of subsidiaries, it could conceivably turn into a never-ending task . . . OSHA will undoubtedly get multiple reports on the same sites, omitted reports, and have a massive burden trying to audit all that information. At best, it is impractical and imprudent to pursue enterprise-wide reporting (Ex. 1221). The
International Association of Drilling Contractors (IADC) commented that “[m]any member companies have establishments (rigs) operating in multiple zip codes. Grouping them together in one enterprise report would not allow for data separation into various states” (Ex. 1199).
Several commenters commented that enterprise-wide submission would create confusion when applying OSHA's recordkeeping requirements (Exs. 1198, 1338, 1343, 1356, 1411). For example, the Food Marketing Institute commented that “new definitions will have to be created for all the core terminology (
e.g.,
`enterprise') and, as legal history has demonstrated repeatedly, regardless of the definition, much litigation will be generated before the true bounds of the terms are discovered. Further, the opportunities for wide-scale confusion and error are abundant” (Ex. 1198). Other commenters expressed similar concerns about definitions (Exs. 1200, 1221).
In response, OSHA has decided not to include a requirement in the final rule for enterprise-wide collection and submission of recordkeeping data. OSHA based this decision on two main reasons. First, OSHA agrees with commenters who stated that it would be difficult to administer an enterprise-wide collection and submission requirement. Specifically, because there are wide variations in corporate structure, OSHA believes that it would be difficult to establish a part 1904 definition of enterprise. This is particularly a concern when some corporate structures include establishments that are otherwise legally separate entities. Also, the question of enterprise ownership or control of specific establishments can be an extremely complex legal issue, especially when parent companies have multiple divisions or subsidiaries. OSHA also believes that in some cases it may be difficult for larger enterprises to identify all of the establishments under its ownership or control.
Second, when the proposed rule for this rulemaking was issued in November 2013, OSHA's recordkeeping regulation included a list of partially-exempt industries based on the Standard Industrial Classification (SIC) system. On September 18, 2014, OSHA published a final rule in the
Federal Register
revising the list of partially-exempt industries in appendix A to subpart B of part 1904. [79 FR 56130]. As part of this revision, partial exemption to OSHA's recordkeeping regulation is now based on the North American Industry Classification System (NAICS).
Compared to the SIC system, NAICS established several new industry categories, including specific categories for establishments conducting office or management activities. One of the industry classifications newly partially exempt from OSHA recordkeeping requirements is NAICS 5511, Company Management and Enterprises. Because of this change, OSHA believes it cannot now include a requirement in this final rule for enterprise-wide collection and submission of part 1904 data.
OSHA also wishes to point out that nothing in this final rule prevents enterprises or corporate offices from voluntarily collecting and submitting part 1904 data for their establishments. Based on the comments to Alternative I, as well as the Agency's own experience, OSHA believes that there are benefits for enterprise-wide collection and submission of recordkeeping data. As noted by commenters, large companies generally have more resources for protecting employee safety and health and reducing workplace hazards and exposures. Enterprise-level collection and submission of part 1904 data increases the likelihood that corporate offices will be aware of variations in establishment processes and practices that place employees at risk. OSHA believes that greater corporate involvement and oversight enhance safety and health at all establishments. Accordingly, OSHA encourages enterprises and corporate offices to voluntarily collect and electronically submit part 1904 records for their establishments required to submit such records under the final rule.
Questions in the NPRM
In addition to Alternatives A through I, the preamble to the proposed rule included several questions about specific issues in this rulemaking. Some of these issues are addressed elsewhere in this preamble. The remaining issues are addressed below.
Implications of Required Electronic Data Submission
In the preamble to the proposed rule, OSHA asked, “What are the implications of requiring all data to be submitted electronically? This proposed rule would be among the first in the federal government without a paper submission option.” [78 FR 67271].
Several commenters supported mandatory electronic submission. The Phylmar Regulatory Roundtable (PRR) commented that “PRR company establishments currently collect and record injury and illness data manually and electronically. Members prefer submitting data electronically over paper submission” (Ex. 1110). The United Food & Commercial Workers International Union (UFCW) commented that “large employers (those greater than 250) can meet requirements for mandatory electronic reporting once OSHA provides the technical means to do so” (Ex. 1345).
The American Federation of Teachers (AFT) commented, “Once the [electronic reporting] requirement is in place, OSHA will for the first time have the most comprehensive and timely data base on large and high hazard establishments. The agency will be able to do frequent and systematic comparisons between like establishments and better target consultation and enforcement. There will also be opportunities to track patterns of specific injuries and illnesses as we have never had before. This ability will be important for research as well as enforcement . . . Electronic reporting will assist us in not only identifying new hazards but also measuring their impact of in a timely manner (Ex. 1358). The AFL-CIO made a similar comment (Ex. 1350).
However, many other commenters expressed concern that only allowing electronic submission would burden small establishments without Internet access, especially those in rural areas, and that OSHA should continue to allow a paper-based reporting option (Exs. 0179, 0211, 0253, 0255, 1092, 1113, 1123, 1124, 1190, 1198, 1199, 1200, 1205, 1273, 1322, 1327, 1332, 1342, 1343, 1359, 1366, 1370, 1386, 1401, 1408, 1410, 1411, 1416, 1417). For example, the American Forest & Paper Association commented that “OSHA must continue to allow a paper-based reporting option. Many businesses, particularly small firms located in rural areas, do not have ready access to the Internet or may find electronic reporting burdensome because they currently have a paper-based record system” (Ex. 0179). The Texas Cotton Ginners Association (TCGA) made a similar comment (Ex. 0211). The Food Marketing Institute further commented that “OSHA acknowledges that 30% of 2010 ODI establishments did not electronically submit injury and illness information and that “most agencies” currently allow paper submission of information.
Id.
at 67273. This confirms that OSHA is aware that not all small businesses will have the access necessary for electronic submission” (Ex. 1198).
Several commenters expressed particular concern about the burden of mandatory electronic submission on farmers. The California Farm Bureau Federation (CFBF) commented that a
recent USDA survey showed that “68 percent of farmers (both livestock/poultry and crop producers) have a computer and only 67 percent have internet access . . . the same USDA report shows that only a mere 40 percent of farmers actually use a computer to conduct their farming business. Should OSHA move forward with the rule, the agency must give consideration to allowing paper submissions. Because submission of these records will be mandatory, failing to do so will create a hardship on agricultural employers, and increase the cost burden of the rule for employers” (Ex. 1366). The American Farm Bureau Federation (AFBF), Pennsylvania Farm Bureau (PFB), the New York Farm Bureau (NYFB), and the Louisiana Farm Bureau Federation (LFBF) provided similar comments (Exs. 1113, 1359, 1370, 1386).
OSHA agrees with the commenters who supported electronic submission. Specifically, OSHA believes that electronic submission is necessary if a data system is to provide timely and useful establishment-specific information about occupational injuries and illnesses. In addition, as discussed in Section VI Final Economic Analysis and Regulatory Flexibility Analysis, OSHA believes that establishments with 20 or more employees are highly likely to have access to the Internet and that the burden of electronic reporting is low even for the few employers for whom it may be more difficult to access the Internet. Consequently, the final rule requires electronic submission of injury and illness records to OSHA.
Commenters also expressed several technical concerns about the electronic submission requirement. The Associated General Contractors of New York, LLC (AGC NYS) expressed the concern that “those that attempted to submit their information but failed due to a Web site that does not function properly may also be considered to be non-compliant with such regulations” (Ex. 1364). Both the National Ready Mixed Concrete Association (NRMCA) and the American Subcontractors Association (ASA) suggested that OSHA should maintain a paper submission option for establishments experiencing temporary technical difficulties with electronic submission (Exs. 0210, 1322).
In response, OSHA believes that there are more cost-effective ways to deal with Web site problems than maintaining a paper submission option. For example, OSHA plans to allocate resources to help employers who have difficulty submitting required information because of unforeseen circumstances. Specifically, OSHA intends to establish a help desk to support data collection and submission under the final rule. In addition, employers will be able to report the information from a different location, such as a public library. Further, for the data collection under the ODI, OSHA provided employers multiple chances after the due date to submit their data before issuing citations for non-response. OSHA expects to continue this practice when employers have technical issues and are unable to submit their information under this final rule.
In addition, OSHA will phase in implementation of the data collection system. In the first year, all establishments required to routinely submit information under the final rule will be required to submit only the information from the Form 300A (by July 1, 2017). In the second year, all establishments required to routinely submit information under the final rule will be required to submit all of the required information (by July 1, 2018). This means that, in the second year, establishments with 250 or more employees that are required to routinely submit information under the final rule will be responsible for submitting information from the Forms 300, 301, and 300A. In the third year, all establishments required to routinely submit under this final rule will be required to submit all of the required information (by March 2, 2019). This means that beginning in the third year (2019), establishments with 250 or more employees will be responsible for submitting information from the Forms 300, 301, and 300A, and establishments with 20-249 employees in an industry listed in appendix A to subpart E of part 1904 will be responsible for submitting information from the Form 300A by March 2 each year. This will provide sufficient time to ensure comprehensive outreach and compliance assistance in advance of implementation.
Finally, OSHA will use feedback from users of the data collection system from the first year of implementation to inform the development and improvement of the data collection system. OSHA will incorporate user experience and design improvements throughout the life of the data collection system, based on user feedback and emerging technology.
Coverage of Industries in § 1904.41(a)(2)
Section 1904.41(a)(2) of the proposed rule would have required establishments with 20 or more employees, but fewer than 250 employees, in designated industries, to electronically submit information from the 300A annual summary to OSHA or OSHA's designee on an annual basis. The list of designated industries subject to the annual submission requirement in proposed § 1904.41(a)(2) was included in proposed appendix A to subpart E. The designated industries in proposed Appendix A to Subpart E represented all industries covered by part 1904 with a 2009 DART rate in the BLS SOII of 2.0 or greater, excluding four selected transit industries where local government is a major employer.
In the preamble to the proposed rule, OSHA asked, “More current BLS injury and illness data will be available at the time of the final rulemaking. Use of newer data may result in changes to the proposed industry coverage. Should OSHA use the most current data available in determining coverage for its final rule? Would this leave affected entities without proper notice and the opportunity to provide substantive comment?” [78 FR 67271].
OSHA received several comments related to this question. Two commenters supported using 2009 BLS injury and illness data for determining coverage for high-hazard industries under the final rule, on grounds that more current data would leave affected entities without proper notice and the opportunity to provide comment (Exs. 1206, 1329). One commenter, the California Department of Industrial Relations (DIR), Office of the Director, recommended “ways of increasing the stability of the system, namely, not changing industries required to report, not using a phased in approach to reporting, and encouraging use of data through a successful data sharing Web site” (Ex. 1395). The International Brotherhood of Teamsters supported using the most current data available for determining coverage in the final rule, commenting that “[w]e recommend that OSHA use the latest BLS data. The results of the Survey of Occupational Injuries and Illnesses (SOII) are one year behind, but they may point to emerging or immediate hazards” (Ex. 1381). Another commenter supported OSHA's use of the most current BLS data available for determining coverage, and stated that OSHA should be able to use the new data without needing a new round of notice and comment because it discussed this possibility in the proposed rule. This commenter also commented that it would be counterproductive to limit OSHA to the BLS data available at the time of the proposed rule (Ex. 1211).
OSHA also received a comment from the National Automobile Dealers Association (NADA) stating that “OSHA should drop the proposal's use of a one
year (2009) DART rate. Focusing on a single year risks mischaracterizing the injury and illness rates for a given industry and/or capturing an uncharacteristic decline or spike. A more appropriate approach would be a rolling three year average similar to what OSHA has used to periodically set partial exemptions from its injury/illness recording mandates. Of course, any reporting mandate should reset annually for each industry sector based on a three-year average of its most current BLS SOII data” (Ex. 1392).
After carefully considering all of these comments, OSHA has decided to use a three-year average of BLS data from 2011, 2012, and 2013 to determine coverage for § 1904.41(a)(2) of the final rule. This three-year range represents the most current BLS data available at the time of this final rule. OSHA agrees with the International Brotherhood of Teamsters that using the most current BLS data available at the time of the final rule, rather than outdated data, is the most effective way to identify emerging workplace hazards, as well as the most effective way to identify the list of high hazard industries for inclusion in appendix A to subpart E. A three-year average will reduce the effects of natural year-to-year variation in industry injury/illness rates, and it is consistent with OSHA's current approach in determining the partial exemption of industries under existing § 1904.2. The alternative would have been to use a single year of BLS data from 2009 for a final rule that will go into effect in 2017.
OSHA also agrees with commenters who stated that the Agency provided sufficient notice and opportunity for comment in the NPRM by explicitly asking whether the Agency should use the most current data available when determining coverage for the final rule. The combination of OSHA's request for comment on the approach that it ultimately adopted in the final rule, and the comments and testimony received in response to the proposed rule, provided the regulated community with adequate notice regarding the outcome of the rulemaking.
See, e.g.,
Nat'l Mining Ass'n
v.
Mine Safety & Health Admin.,
512 F.3d 696, 699 (D.C. Cir. 2008);
Miami-Dade County
v.
U.S. E.P.A.,
529 F.3d 1049, 1059 (11th Cir. 2008);
United Steelworkers of America, AFL-CIO-CLC
v.
Marshall,
647 F.2d 1189, 1221 (D.C. Cir. 1980) (“a final rule may properly differ from a proposed rule and indeed must so differ when the record evidence warrants the change . . . . Where the change between proposed and final rule is important, the question for the court is whether the final rule is a `logical outgrowth' of the rulemaking proceeding”). The list of designated industries in Appendix A to Subpart E of the final rule is a logical outgrowth of the proposal, and the number of comments provides a clear indication that the affected members of the public are not only familiar with the issue of using the most current data, but also viewed the inclusion of such data as a potential outcome of this rulemaking. As a result, unlike the proposed rule, the final rule will use a three-year average (2011, 2012, 2013) DART rate of 2.0 or greater for determining the list of industries included in appendix A to subpart E.
Also in the preamble to the proposed rule, OSHA asked whether the list of designated industries in appendix A to subpart E should remain the same each year, or whether the list should be adjusted each year to reflect the most current BLS injury and illness data. OSHA also asked how OSHA could best inform affected establishments about the adjustments, if the list were adjusted.
One commenter supported adjusting the list of designated industries each year to reflect the most current BLS injury and illness data (Ex. 1211). Other commenters supported adjusting the list in other ways. For example, the International Union (UAW) commented that “annual updating is too frequent and would leave employers confused as to whether or not they need to report. Updating every three years would be more appropriate” (Ex. 1384). The International Brotherhood of Teamsters and the Service Employees International Union (SEIU) provided similar comments (Exs. 1381, 1387). The American Federation of Teachers (AFT) commented that “[t]he AFT recommends that new establishments that meet the requirement of a DART rate of 2.0 be added every year but that the original list of high hazard establishments be maintained regardless of changes to their DART that puts them below the threshold. Those original establishments should continue reporting for a minimum of ten years in order to ascertain if their DART rates are trending lower over the long term” (Ex. 1358).
On the other hand, the California Department of Industrial Relations (DIR), Office of the Director supported “increasing the stability of the system, namely, [by] not changing industries required to report” (Ex. 1395).
Finally, Thoron Bennett supported requiring establishments with 20 or more employees in all industries to report, rather than limiting the requirement to establishments with 20 or more employees on a list of designated high-hazard industries. He further commented that OSHA should “[f]orget the tiered reporting based on employment numbers or designated industries. Simply require electronic data submission for all employers who have to fill out the OSHA 300/300A/301 logs” (Ex. 0035).
OSHA agrees with the commenters who stated that the list of designated industries in appendix A to subpart E should not be updated each year. OSHA believes that moving industries in and out of appendix A to subpart E each year would be confusing. OSHA also believes that keeping the same industries in appendix A to subpart E each year will increase the stability of the system and reduce uncertainty for employers. Accordingly, OSHA will not, as part of this rulemaking, include a requirement to annually or periodically adjust the list of designated industries to reflect more recent BLS injury and illness data. Any such revision to the list of industries in appendix A to subpart E in the future would require additional notice and comment rulemaking.
The designated industries, which will be published in appendix A to subpart E of the final rule, will be as follows:
NAICS
Industry
11
Agriculture, forestry, fishing and hunting.
22
Utilities.
23
Construction.
31-33
Manufacturing.
42
Wholesale trade.
4413
Automotive parts, accessories, and tire stores.
4421
Furniture stores.
4422
Home furnishings stores.
4441
Building material and supplies dealers.
4442
Lawn and garden equipment and supplies stores.
4451
Grocery stores.
4452
Specialty food stores.
4521
Department stores.
4529
Other general merchandise stores.
4533
Used merchandise stores.
4542
Vending machine operators.
4543
Direct selling establishments.
4811
Scheduled air transportation.
4841
General freight trucking.
4842
Specialized freight trucking.
4851
Urban transit systems.
4852
Interurban and rural bus transportation.
4853
Taxi and limousine service.
4854
School and employee bus transportation.
4855
Charter bus industry.
4859
Other transit and ground passenger transportation.
4871
Scenic and sightseeing transportation, land.
4881
Support activities for air transportation.
4882
Support activities for rail transportation.
4883
Support activities for water transportation.
4884
Support activities for road transportation.
4889
Other support activities for transportation.
4911
Postal service.
4921
Couriers and express delivery services.
4922
Local messengers and local delivery.
4931
Warehousing and storage.
5152
Cable and other subscription programming.
5311
Lessors of real estate.
5321
Automotive equipment rental and leasing.
5322
Consumer goods rental.
5323
General rental centers.
5617
Services to buildings and dwellings.
5621
Waste collection.
5622
Waste treatment and disposal.
5629
Remediation and other waste management services.
6219
Other ambulatory health care services.
6221
General medical and surgical hospitals.
6222
Psychiatric and substance abuse hospitals.
6223
Specialty (except psychiatric and substance abuse) hospitals.
6231
Nursing care facilities.
6232
Residential mental retardation, mental health and substance abuse facilities.
6233
Community care facilities for the elderly.
6239
Other residential care facilities.
6242
Community food and housing, and emergency and other relief services.
6243
Vocational rehabilitation services.
7111
Performing arts companies.
7112
Spectator sports.
7121
Museums, historical sites, and similar institutions.
7131
Amusement parks and arcades.
7132
Gambling industries.
7211
Traveler accommodation.
7212
RV (recreational vehicle) parks and recreational camps.
7213
Rooming and boarding houses.
7223
Special food services.
8113
Commercial and industrial machinery and equipment (except automotive and electronic) repair and maintenance.
8123
Dry-cleaning and laundry services.
OSHA notes that 15 industries in appendix A to subpart E in the final rule were not included in proposed appendix A to subpart E. These industries are Specialty Food Stores (NAICS 4452), Vending Machine Operators (NAICS 4542), Urban Transit Systems (NAICS 4851), Interurban and Rural Bus Transportation (NAICS 4852), Taxi and Limousine Service (NAICS 4853), School and Employee Bus Transportation (NAICS 4854), Other Transit and Ground Passenger Transportation (NAICS 4859), Postal Service (NAICS 4911), Other Ambulatory Health Care Services (NAICS 6219), Community Food and Housing, and Emergency and Other Relief Services (NAICS 6242), Performing Arts Companies (NAICS 7111), Museums, Historical Sites, and Similar Institutions (NAICS 7121), RV (Recreational Vehicle) Parks and Recreational Camps (NAICS 7212), Rooming and Boarding Houses (NAICS 7213), and Special Food Services (NAICS 7223). Conversely, three industries that were included in proposed appendix A to subpart E are not included in the final Appendix A to Subpart E. These industries are Inland Water Transportation (NAICS 4832), Scenic and Sightseeing Transportation, Water (NAICS 4872), and Home Health Care Services (NAICS 6216).
The following table summarizes the changes in affected industries by using the three-year average of BLS data (2011, 2012, 2013) compared to using 2009 BLS data and provides the expected number of affected establishments in each industry based on the most recent 2012 County Business Patterns data:
NAICS
Industry
Expected No. of affected
establishments
In appendix A to subpart E of the final rule (using three-year average of 2011, 20012, 2013 BLS data), but NOT in appendix A to subpart E of the proposed rule (using 2009 BLS data)
4452
Specialty food stores
1221
4542
Vending machine operators
493
4851
Urban transit systems
374
4852
Interurban and rural bus transportation
184
4853
Taxi and limousine service
740
4854
School and employee bus transportation
2025
4859
Other transit and ground passenger transportation
918
4911
Postal service
*
6219
Other ambulatory health care services
3282
6242
Community food and housing, and emergency and other relief services
2481
7111
Performing arts companies
1079
7121
Museums, historical sites, and similar institutions
1161
7212
RV (recreational vehicle) parks and recreational camps
392
7213
Rooming and boarding houses
67
7223
Special food services
7812
In Appendix A to Subpart E of the proposed rule (using 2009 BLS data), but NOT in Appendix A to Subpart E of the final rule (using three-year average of 2011, 2012, 2013 BLS data)
4832
Inland water transportation
123
4872
Scenic and sightseeing transportation, water
131
6216
Home health care services
12801
* Insufficient data.
Design of the Electronic Submission System
In the preamble to the proposed rule, OSHA asked, “How should the electronic data submission system be designed? How can OSHA create a system that is easy to use and compatible with other electronic systems that track and report establishment-specific injury and illness data?” [78 FR 67271].
There were many comments with suggestions about the overall design of OSHA's electronic submission system. Several commenters commented that OSHA's electronic data submission system should be compatible with existing systems. The United Steelworkers (USW) commented that “[i]t is important that OSHA ensure that electronic systems put in place for this initiative are compatible with existing systems in common use. We also encourage OSHA to update their system as necessary to keep up with advances in technology and facilitate the transfer of employer data” (Ex. 1424). Rachel Armont; the California Department of Industrial Relations (DIR), Office of the Director; and Shawn Lewis provided similar comments (Exs. 0198, 1320, 1395).
The International Union (UAW) commented that “such a system should allow for employers [to] upload existing files” (Ex. 1384). Harvey Staple commented that “the states and OSHA [could] work together to develop a system whereby one entry into an electronic log could be used for multiple information reporting (
i.e.,
state and federal). It would further enhance all parties involved if the system could be tied into the workers compensation system to maximize the data already captured without adding another paperwork burden” (Ex. 0154).
In response, OSHA notes that, because there are many commercial software products on the market for recording and managing information on workplace injuries/illnesses to support compliance with OSHA recordkeeping requirements, OSHA plans to coordinate with trade associations and health and safety consultants to identify the products in widest use. OSHA would then review available information about these products to help inform relevant considerations during development of the OSHA system for ensuring ease-of-use and compatibility with commercial products in common use.
When OSHA develops the data collection system, the Agency will consider commercial systems used by establishments to maintain their injury/illness records. This means that the Agency's system may provide a mechanism and protocol for employers to transmit their data electronically instead of completing online forms. For example, the system could allow employers to securely transfer encrypted data over the Web in an acceptable data file format (
e.g.,
MS Excel, XML, or csv) for validation and import into the electronic reporting system. OSHA will provide users with easy-to-follow guidance that addresses required data elements (a data dictionary), format and other technical considerations, and steps involved in validation, transfer, and confirmation. Routines will be programmed to automate as much of the process as possible, with prompts for manual review as needed.
Quick Incidents suggested the use of an Application Programming Interface (API), commenting that “Application Programming Interfaces (APIs) have gained widespread usage in the corporate world . . . Having this type of machine to machine communication ensures that data is transferred securely, accurately and quickly without any human intervention . . . An API would allow companies to connect their incident recording software directly to the OSHA reporting system. Incident reports would be transmitted seamlessly without any redundancy. For companies with an existing incident recording system this proposed API would allow
OSHA submission without any additional burden” (Ex. 1220).
OSHA will explore this suggestion during development of the data collection system, in addition to the file transfer concept described above.
The Risk and Insurance Management Society suggested another approach, commenting that “[m]any employers have in place systems to report their injury and illness data through the Electronic Data Interchange . . . If OSHA decides to move forward with the proposed rule, then an effort should be made to accept data submitted through the current Electronic Data Interchange system” (Ex. 1222).
The International Association of Industrial Accident Boards and Commissions (IAIABC) suggested that OSHA should “consider the benefits of using the IAIABC's established First and Subsequent Reports of Injury Standard (IAIABC EDI Claims Standard). Implementation of an existing electronic standard would be much faster and easier than developing a brand new electronic reporting protocol . . . All of the IAIABC's EDI standards have been developed by workers' compensation business and technical experts and are widely used and actively supported. To date, 40 jurisdictions have implemented at least one of the IAIABC's EDI standards” (Ex. 1104).
In response, OSHA notes that IAIABC's EDI claim standards are used by many states for standardizing the submission of workers' compensation claims information. When OSHA develops the data collection system, the Agency will assess whether some variation of the standard or its basic logic might be appropriate for ensuring consistency in the submission and processing of data to OSHA.
However, the Dow Chemical Company commented that “[i]t is probably literally impossible for OSHA to design its web portal to be compatible with every electronic system that some employer may be using. Dow is not aware of any web portal that is compatible with SAP-based systems, Excel spreadsheets, Adobe Acrobat, Lotus Notes, Oracle, and the multitude of other options for keeping electronic records” (Ex. 1189).
Several commenters also expressed specific concerns about the electronic data submission system's compatibility with 301-equivalent forms. The U.S. Poultry & Egg Association commented that “OSHA does not appear to realize that many employers do not actually use the OSHA 301 Form. Instead, they use an equivalent form, often for workers compensation purposes. Presumably, OSHA would require employers to translate the information into the `301 Form' on the internet. This may not be as straightforward as OSHA makes it seem and certainly it may be more costly than OSHA anticipates. It also not only increases the risks of errors occurring in the translation but eliminates the usefulness of equivalent forms” (Ex. 1109). The National Association of Manufacturers and Littler Mendelson, P. C. provided similar comments (Exs. 1279, 1385).
OSHA's response is that, in developing the data collection system, OSHA may consider aspects of the IAIABC EDI standards that might inform and streamline data submission to the OSHA system, rather than designing the system to accept the workers' compensation forms or equivalent forms themselves. That is, because workers' compensation forms are for a specific purpose and can vary by state, the workers' compensation form data elements may not fit OSHA's reporting requirements.
The Association of Occupational Health Professionals in Healthcare (AOHP) commented about the importance of compatibility between existing systems and OSHA's electronic data submission system because “[t]he need to double enter the data is a significant concern. Double data entry was a significant concern when NIOSH was proposing the Occupational Safety Health Network (OHSN). NIOSH considered this concern and was able to create an interface to eliminate double data entry into this national database. Double data entry is costly in terms of time and the use of scarce human resources to manage these record keeping requirements (Ex. 0246). The Risk and Insurance Management Society provided a similar comment (Ex. 1222).
Several other commenters provided comments about making the electronic data submission system user-friendly. The Association of Occupational Health Professionals in Healthcare (AOHP) commented that “[c]onsideration should be given to a pilot to test the functioning of the Web site and the ease with which the data can be entered and submitted” (Ex. 0246). The California Department of Industrial Relations (DIR), Office of the Director commented that “[c]urrent OSHA guidelines for its forms are simple, easy-to-use, and are low-literacy friendly . . . Any electronic reporting system must balance the needs for uniform, easy to process data with the simplicity that paper records provided” (Ex. 1395).
The Phylmar Regulatory Roundtable (PRR) commented that “[t]he Proposed Rule calls for two methods of submitting data—use of online forms or batch submission of Excel or XML files. PRR supports this approach, as it appears to accommodate both establishment size (smaller establishments would likely use the online form) and the diverse software programs companies currently used to electronically manage injury and illness data” (Ex. 1210). The International Brotherhood of Teamsters provided a similar comment (Ex. 1381).
The Dow Chemical Company suggested that it is “vitally important for employers to receive immediate feedback as to whether their data entry was successful or unsuccessful. OSHA's web portal should respond to each and every attempt at data entry, by providing a confirmation of receipt or a confirmation of failure. The confirmation notice should describe what was received (or not received) with sufficient detail to be useful in resolving disputes in an enforcement context” (Ex. 1189).
The Allied Universal Corporation commented about potential technical issues, suggesting that “OSHA must also consider the heavy traffic flow as the submission deadline approaches, and ensure the Web site to submit electronically does not crash or cause further reporting problems” (Ex. 1192). Thoron Bennett noted another potential issue, commenting that “many companies have security measures that cause electronic reporting problems, particularly defense and research companies that safeguard their electronic information” (Ex. 0035).
Several commenters suggested that OSHA should consult on this issue with other governmental agencies that collect establishment-specific injury and illness data. Senator Tom Harkin commented that “OSHA's sister agency the Mine Safety and Health Administration (MSHA), along with other agencies like the Federal Railroad Administration (FRA) and Federal Aviation Administration (FAA), currently publish establishment-specific accident and injury and illness data. We believe that OSHA should consult with these agencies to learn about design problems and potential best practices to adopt before creating its database” (Ex. 1371). The International Brotherhood of Teamsters provided a similar comment (Ex. 1381).
In response, OSHA intends to use submitter registration, which would enable OSHA to issue a unique ID for reporting establishments. With user self-registration via an online submission form, the employer would have to complete an online registration form (available from a link on the electronic reporting system's home/login page) to obtain login information before gaining
access to the new electronic reporting system for data submission. After the user submitted the online registration form, the user would receive a system-generated email confirming registration and providing login information. Registration for submission would be needed because, unlike under the ODI, employers required to submit data each year under this final rule will not receive notification. Alternate account registration and authentication provisions may be provided for electronic transmission of data. In contrast, special OSHA data collections under § 1904.41(a)(3) of this final rule will involve OSHA notifications to affected employers.
Updates for the Electronic Data Submission System
In the preamble to the proposed rule, OSHA asked, “Should the electronic data submission system be designed to include updates? Section 1904.33(b) requires employers to update OSHA Logs to include newly-discovered recordable injuries or illnesses and to show any changes that have occurred in the classification of previously-recorded injuries and illnesses.” [78 FR 67271].
There were many comments about the benefits of allowing updates in the electronic data submission system. Several commenters noted that the data would be inaccurate without updates, because more information about cases often becomes available over time, after investigation (Exs. 1205, 1217, 1219, 1275, 1326, 1327, 1331, 1355, 1358, 1360, 1378, 1389, 1396, 1399, 1408). For example, the Pacific Maritime Association commented that “[i]t is common for an employer to record an employee's complaint at the time it is reported, prior to performing an evaluation of whether an injury has actually occurred or whether it is indeed workplace related. However, following an examination by a physician or consideration of the recordkeeping factors in Section 1904, recorded injuries regularly have to be removed or edited. The information submitted to OSHA and included on its database will be no different. Additionally, it is particularly troublesome that OSHA will base its enforcement and targeting efforts on this information, while at the same time conceding that there may be no way to update or amend information to ensure that it is accurate. Accordingly, if OSHA proceeds with this rule, PMA believes that it is imperative that this system be designed to allow for amendments” (Ex. 1326).
The U.S. Chamber of Commerce further commented that “OSHA acknowledges in its Notice for this Proposed Rule that the present recordkeeping rules require that employers update their OSHA Form 300 for five years.
See
78 FR at 67271. Those updates will affect the forms described above which in turn would affect the accuracy of database entries. Thus, it is not a question of
whether
employers will need to update this information, but rather a question of
how
they will do so” (Ex. 1396).
Several other commenters commented that companies will look bad unfairly if an injury or illness is later found to be non-work-related and updates are not allowed. The National Marine Manufacturers Association commented that “it seems clear that companies will be held accountable for recordable incidents where either the actual cause was not under the employer's control or part of an employee's work or it is later discovered the injury was due to other causes. Based on the proposal, once these incidents are recorded and submitted to OSHA, NMMA understands that the reports cannot be amended. Both OSHA and the public would therefore have an inaccurate depiction of a company's safety record” (Ex. 1217). The National Electrical Contractors Association (NECA), Innovative Holdings of Iowa, Inc., and the Association of Union Constructors provided similar comments (Exs. 1125, 1275, 1389).
Other commenters commented that not allowing updates could lead to underreporting of marginally work-related cases. United Parcel Service, Inc. (UPS) commented that “[without updates] an employer would not want to err on the side of placing questionable entries onto the log. There would be no mechanism for striking through this data once it is publicly posted on OSHA's Web site. Rather than the rule promoting more revelations of injury and illness data, it would likely result in less data in circumstances where questions remained regarding recording of a case” (Ex. 1391). The International Warehouse Logistics Association (IWLA) provided a similar comment (Ex. 1360).
There were also commenters who opposed allowing updates. Several commenters believed that updates would be burdensome to employers. The Phylmar Regulatory Roundtable (PRR) commented that “updating quarterly submissions would be a major burden to employers. Consider the time involved for a record keeper at one establishment to communicate changes in status regarding particular injury cases on a regular basis to someone in an enterprise-level role who must then either access the online log or records to modify them or modify the enterprise database and resubmit it to the Web site” (Ex. 1110). The AFL-CIO, the International Warehouse Logistics Association (IWLA), the International Brotherhood of Teamsters, and the International Union (UAW) all provided similar comments (Exs. 1350, 1360, 1381, 1384). The Puget Sound Shipbuilders Association provided a comment that updates would be especially burdensome for certain establishments, such as those located on sea vessels (Ex. 1379).
The Dow Chemical Company commented that “[t]he system should not be designed to accept updates. This is because allowing updates is only half a step from requiring updates, and requiring updates would greatly increase the burden of the rule . . . . if the Agency ever wishes to see whether an employer has made any updates, OSHA already has the authority to pose that question to the employer—without imposing a universal obligation” (Ex. 1189).
The U.S. Chamber of Commerce commented that updates would also be burdensome for OSHA, stating that “any suggestion that OSHA will be able to keep up with this insurmountable task of maintaining an immediately accessible, accurate database is not credible” (Ex. 1396). The Pacific Maritime Association made a similar comment (Ex. 1326).
Finally, the Phylmar Regulatory Roundtable (PRR) suggested that the benefits of updates might be insignificant overall, since “[f]or large, established, legacy employers, many years of experience has shown that while updates are required by law, they are usually of minor consequence and/or correction and rarely, if ever, reflect a major and significant change in the safety performance of a company” (Ex. 1110).
Several commenters provided OSHA with suggestions about how to proceed with the question of whether or not the electronic data submission system should include updates. The American College of Occupational and Environmental Medicine (ACOEM) suggested that the system should allow but not require updates. They commented that “the accuracy of reported data could be optimized by permitting, though not requiring, employers to update their data after submission as new information becomes available about specific injuries, exposures, and diseases” (Ex. 1327). The International Brotherhood of Teamsters and Thoron Bennett provided similar comments (Exs. 0035, 1381).
Finally, the U.S. Chamber of Commerce commented that “if OSHA insists on pressing forward with a rule of this type, it must start over and reintroduce a proposed rule with an adequate system for updating submitted data that stakeholders may meaningfully consider and comment on” (Ex. 1396).
In response, OSHA agrees with the commenters who stated that allowing updates but not requiring updates would improve the accuracy of the data while limiting the burden on employers. Accurate data will help OSHA, researchers, employers, employees, and the public in their efforts to improve workplace safety and health. In addition, because the final rule requires annual submission of records for establishments with 250 or more employees, rather than quarterly submission as proposed in the NPRM, employers will be able to update information throughout the year before they certify the 300A. Annual reporting also reduces the likelihood that employers will need to update information after reporting to OSHA. Therefore, OSHA plans to design a reporting system that will allow but not require updates.
Accuracy of the Collected and Published Data
In the preamble to the proposed rule, OSHA asked, “How can OSHA use the electronic submission requirement to improve the accuracy of injury and illness records by encouraging careful reporting and recording of work-related injuries and illnesses?” [78 FR 67271].
Several commenters provided technical comments on ways for OSHA to improve the accuracy of injury and illness records collected through electronic submission. As mentioned in the previous section, many commenters commented that allowing updates could improve the accuracy of collected data (Exs. 1205, 1217, 1219, 1275, 1326, 1327, 1331, 1355, 1358, 1360, 1378, 1389, 1396, 1399, 1408). Rachel Armont further commented that “[o]n the data management side of things, perhaps [OSHA] could open up the site as a way to keep a real-time log of work-related injuries so it's not a one-time submission process” (Ex. 0198).
The Council of State and Territorial Epidemiologists (CSTE) commented that “[t]he proposed electronic collection of data, in the longer run, offers the opportunity to provide employers with electronic tools (prompts, definitions, consistency edits, and industry specific drop down lists) that have the potential to improve the quality of the data reported” (Ex. 1106). The American Federation of State, County, and Municipal Employees (AFSCME) provided a similar comment (Ex. 1103).
ORCHSE Strategies, LLC commented that OSHA should develop “a useful set of decision-making software to assist users in making accurate recordkeeping decisions. The current OSHA software does little more than summarize the text in the regulations. What is needed is software that employers can use to correctly answer their “what if” questions” (Ex. 1339).
The American College of Occupational and Environmental Medicine (ACOEM) commented that OSHA could provide “an electronic tool for employers to self-check their submitted information for recordkeeping errors and for deviance from industry averages (Ex. 1327). The American Federation of Teachers (AFT) provided a similar comment (Ex. 1358).
The American Federation of Teachers (AFT) also commented that “[t]he agency could provide training through consultation to employers on the importance and value of accurate record-keeping. Training could also be provided to trade associations, labor unions and other advocacy groups on the importance and value of encouraging employees to report their injuries and illnesses. As well, the agency might consider a special emphasis program of targeted inspections for record-keeping. The agency could target those establishments with the highest rates as well as the lowest rates to ascertain accuracy” (Ex. 1358).
Finally, the Phylmar Regulatory Roundtable (PRR) commented that “if OSHA seeks to encourage careful, accurate reporting and recording of injuries and illnesses, promulgating an
annual
submission requirement (versus quarterly) makes the most sense. Companies will have the time to review the quality of records, correct errors, and obtain the approval of a senior company official before providing data to OSHA. Requiring quarterly submission and updating is overly burdensome for employers and likely to result in more errors in the data
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