# Improve Tracking of Workplace Injuries and Illnesses > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2023-15091 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** July 21, 2023 - **Citation:** 88 FR 47254 ## Text DEPARTMENT OF LABOR Occupational Safety and Health Administration 29 CFR Part 1904 [Docket No. OSHA-2021-0006] RIN 1218-AD40 Improve Tracking of Workplace Injuries and Illnesses AGENCY: Occupational Safety and Health Administration (OSHA), Labor. ACTION: Final rule. SUMMARY: OSHA is amending its occupational injury and illness recordkeeping regulation to require certain employers to electronically submit injury and illness information to OSHA that employers are already required to keep under the recordkeeping regulation. Specifically, OSHA is amending its regulation to require establishments with 100 or more employees in certain designated industries to electronically submit information from their OSHA Forms 300 and 301 to OSHA once a year. OSHA will not collect employee names or addresses, names of health care professionals, or names and addresses of facilities where treatment was provided if treatment was provided away from the worksite from the Forms 300 and 301. Establishments with 20 to 249 employees in certain industries will continue to be required to electronically submit information from their OSHA Form 300A annual summary to OSHA once a year. All establishments with 250 or more employees that are required to keep records under OSHA's injury and illness regulation will also continue to be required to electronically submit information from their Form 300A to OSHA on an annual basis. OSHA is also updating the NAICS codes used in appendix A, which designates the industries required to submit their Form 300A data, and is adding appendix B, which designates the industries required to submit Form 300 and Form 301 data. In addition, establishments will be required to include their company name when making electronic submissions to OSHA. OSHA intends to post some of the data from the annual electronic submissions on a public website after identifying and removing information that could reasonably be expected to identify individuals directly, such as individuals' names and contact information. DATES: This final rule becomes effective on January 1, 2024. Collections of information: There are collections of information contained in this final rule (see Section V, OMB Review Under the Paperwork Reduction Act of 1995). Notwithstanding the general date of applicability for the requirements contained in the final rule, affected parties do not have to comply with the collections of information until the Department of Labor publishes a separate document in the Federal Register announcing that the Office of Management and Budget has approved them under the Paperwork Reduction Act. ADDRESSES: Electronic copies of this Federal Register document and news releases are available at OSHA's website at https://www.osha.gov. FOR FURTHER INFORMATION CONTACT: For press inquiries: Frank Meilinger, Director, Office of Communications, Occupational Safety and Health Administration, U.S. Department of Labor; telephone (202) 693-1999; email: meilinger.francis2@dol.gov. For general information and technical inquiries: Lee Anne Jillings, Director, Directorate of Technical Support and Emergency Management, U.S. Department of Labor; telephone (202) 693-2300; email: Jillings.LeeAnne@dol.gov. SUPPLEMENTARY INFORMATION: Table of Contents I. Background A. References and Exhibits B. Introduction C. Regulatory History D. Related Litigation E. Injury and Illness Data Collection II. Legal Authority A. Statutory Authority To Promulgate the Rule B. Fourth Amendment Issues C. Publication of Collected Data and FOIA D. Reasoned Explanation for Policy Change III. Summary and Explanation of the Final Rule A. Section 1904.41(a)(1)(i) and (ii)—Annual Electronic Submission of Information From OSHA Form 300A Summary of Work-Related Injuries and Illnesses 1. Section 1904.41(a)(1)(i)—Establishments With 20-249 employees That Are Required To Submit Information From OSHA Form 300A 2. Section 1904.41(a)(1)(ii)—Establishments With 250 or More Employees That Are Required To Submit Information From OSHA Form 300A 3. Restructuring of Previous Section 1904.41(a)(1) and (2) Into Final Section 1904.41(a)(1)(i) and (ii) 4. Updating Appendix A B. Section 1904.41(a)(2)—Annual Electronic Submission of OSHA Form 300 Log of Work-Related Injuries and Illnesses and OSHA Form 301 Injury and Illness Incident Report by Establishments With 100 or More Employees in Designated Industries) 1. Covered Establishments and Industries a. The Size Threshold for Submitting Information From OSHA Forms 300 and 301 b. The Criteria for Determining the Industries in Appendix B to Subpart E c. Cut-Off Rates for Determining the Industries in Appendix B to Subpart E d. Using the Most Current Data To Determine Designated Industries e. Industries Included in Final Appendix B After Applying the Final Criteria, Cut-Off Rates, and Data Sources 2. Information To Be Submitted 3. Publication of Electronic Data 4. Benefits of Collecting and Publishing Data From Forms 300 and 301 a. General Benefits of Collecting and Publishing Data From Forms 300 and 301 b. Beneficial Ways That OSHA Can Use The Data From Forms 300 and 301 c. Beneficial Ways That Employers Can Use the Data From Forms 300 and 301 d. Beneficial Ways That Employees Can Use the Data From Forms 300 and 301 e. Beneficial Ways That Federal and State Agencies Can Use the Data From Forms 300 and 301 f. Beneficial Ways That Researchers Can Use the Data From Forms 300 and 301 g. Beneficial Ways That Workplace Safety Consultants Can Use the Data From Forms 300 and 301 h. Beneficial Ways That Members of the Public and Other Interested Parties Can Use the Data From Forms 300 and 301 5. The Freedom of Information Act (FOIA) 6. Safeguarding Individual Privacy (Direct Identification) 7. Indirect Identification of Individuals 8. The Experience of Other Federal Agencies 9. Risk of Cyber Attack 10. The Health Information Portability and Accountability Act (HIPAA) 11. The Americans With Disabilities Act (ADA) 12. The Privacy Act 13. Privacy Impact Assessment 14. Other Issues Related to OSHA's Proposal To Require the Submission of and Then Publish Certain Data From Establishments' Forms 300 and 301 a. Miscellaneous Comments b. The Effect of the Rule on the Accuracy of Injury and Illness Records c. Collecting and Processing the Data From Forms 300 and 301 Will Help OSHA Use Its Resources More Effectively d. OSHA's Capacity To Collect and Process the Data From Forms 300 and 301 e. Data Submission f. Tools To Make the Collected Data From Forms 300 and 301 More Useful C. Section 1904.41(b)(1) D. Section 1904.41(b)(9) 1. Collecting Employee Names 2. Excluding Other Specified Fields E. Section 1904.41(b)(10) F. Section 1904.41(c) G. Additional Comments Which Concern More Than One Section of the Proposal 1. General Comments 2. Misunderstandings About Scope 3. Diversion of Resources 4. Lagging v. Leading Indicators 5. Employer Shaming 6. Impact on Employee Recruiting 7. Legal Disputes 8. No Fault Recordkeeping 9. Confidentiality of Business Locations 10. Employer-Vaccine-Mandate-Related Concerns 11. Constitutional Issues and OSHA's Authority To Publish Information From Forms 300 and 301 a. The First Amendment b. The Fourth Amendment c. The Fifth Amendment d. OSHA's Authority To Publish Information Submitted Under This Rule 12. Administrative Issues a. Public Hearing b. The Advisory Committee on Construction Safety and Health (ACCSH) c. Reasonable Alternatives Considered IV. Final Economic Analysis and Regulatory Flexibility Certification A. Introduction B. Changes From the Preliminary Economic Analysis (PEA) (Reflecting Changes in the Final Rule From the Proposal) 1. Continued Submission of OSHA 300A Annual Summaries by Establishments With 250 or More Employees 2. Additional Appendix B Industries 3. Updated Data C. Cost 1. Wages a. Wage Estimates in the PEA b. Comments on OSHA's Wage Estimates c. Wage Estimates in the FEA 2. Estimated Case Counts 3. Familiarization 4. Record Submission 5. Custom Forms 6. Batch-File Submissions 7. Software/System Upgrades Needed 8. Other Costs a. Harm to Reputation b. Additional Time Needed To Review for PII c. Company Name d. Training Costs D. Effect on Prices E. Budget Costs to the Government F. Total Cost G. Benefits H. Economic Feasibility I. Regulatory Flexibility Certification V. OMB Review Under the Paperwork Reduction Act of 1995 A. Overview B. Summary of Information Collection Requirements VI. Unfunded Mandates VII. Federalism VIII. State Plans IX. National Environmental Policy Act X. Consultation and Coordination With Indian Tribal Governments Authority and Signature I. Background A. References and Exhibits In this preamble, OSHA references documents in Docket No. OSHA-2021-0006, the docket for this rulemaking. The docket is available at http://www.regulations.gov, the Federal eRulemaking Portal. When citing exhibits in the docket, OSHA includes the term “Document ID” followed by the last four digits of the Document ID number. For example, OSHA's preliminary economic analysis is in the docket as OSHA-2021-0006-0002. Citations also include the attachment number or other attachment identifier, if applicable, page numbers (designated “p.” or “Tr.” for pages from a hearing transcript), and in a limited number of cases a footnote number (designated “Fn.”). In a citation that contains two or more Document ID numbers, the Document ID numbers are separated by semi-colons ( e.g., “Document ID 1231, Attachment 1, p. 6; 1383, Attachment 1, p. 2”). All materials in the docket, including public comments, supporting materials, meeting transcripts, and other documents, are listed on 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, including copyrighted material, are available for inspection through the OSHA Docket Office. Contact the OSHA Docket Office at (202) 693-2350 (TTY (877) 889-5627) for assistance in locating docket submissions. B. Introduction OSHA's regulation at 29 CFR part 1904 requires employers with more than 10 employees in most industries to keep records of occupational injuries and illnesses at their establishments. Employers covered by the regulation must use three forms, or their equivalent, to record recordable employee injuries and illnesses: • OSHA Form 300, the Log of Work-Related Injuries and Illnesses. This form includes information about the employee's name, job title, date of the injury or illness, where the injury or illness occurred, description of the injury or illness ( e.g., body part affected), and the outcome of the injury or illness ( e.g., death, days away from work, job transfer or restriction). • OSHA Form 301, the Injury and Illness Incident Report. This form includes the employee's name and address, date of birth, date hired, and gender and the name and address of the health care professional that treated the employee, as well as more detailed information about where and how the injury or illness occurred. • OSHA Form 300A, the Annual Summary of Work-Related Injuries and Illnesses. This form includes general information about an employer's workplace, such as the average number of employees and total number of hours worked by all employees during the calendar year. It does not contain information about individual employees. Employers are required to prepare this form at the end of each year and post the form in a visible location in the workplace from February 1 to April 30 of the year following the year covered by the form. Section 1904.41 of the previous recordkeeping regulation also required two groups of establishments to electronically submit injury and illness data to OSHA once a year. • § 1904.41(a)(1) required establishments with 250 or more employees in industries that are required to routinely keep OSHA injury and illness records to electronically submit information from the Form 300A summary to OSHA once a year. • § 1904.41(a)(2) required establishments with 20-249 employees in certain designated industries (those listed on appendix A of part 1904 subpart E) to electronically submit information from their Form 300A summary to OSHA once a year. Also, § 1904.41(a)(4) required each establishment that must electronically submit injury and illness information to OSHA to provide their Employer Identification Number (EIN) in their submittal. Under this final rule, three groups of establishments will be required to electronically submit information from their injury and illness recordkeeping forms to OSHA once a year. • Establishments with 20-249 employees in certain designated industries (listed in appendix A to subpart E) will continue to be required to electronically submit information from their Form 300A annual summary to OSHA once a year (final § 1904.41(a)(1)(i)). OSHA is also updating the NAICS codes used for appendix A to subpart E. • Establishments with 250 or more employees in industries that are required to routinely keep OSHA injury and illness records will continue to be required to electronically submit information from the Form 300A to OSHA once a year (final § 1904.41(a)(1)(ii)). • Establishments with 100 or more employees in certain designated industries (listed in new appendix B to subpart E) will be newly required to electronically submit information from their OSHA Forms 300 and 301 to OSHA once a year (final § 1904.41(a)(2)). The industries listed in new appendix B were chosen based on three measures of industry hazardousness. OSHA will also require establishments to include their company name when making electronic submissions to OSHA (final § 1904.41(b)(10)). Additionally, although publication is not part of the regulatory requirements of this final rule, OSHA intends to post the collected establishment-specific, case-specific injury and illness information online. As discussed in more detail below, the agency will seek to minimize the possibility of the release of information that could reasonably be expected to identify individuals directly, such as employee name, contact information, and name of physician or health care professional. OSHA will minimize the possibility of releasing such information in multiple ways, including by limiting the worker information collected, designing the collection system to provide extra protections for some of the information that employers will be required to submit, withholding certain fields from public disclosure, and using automated software to identify and remove information that could reasonably be expected to identify individuals directly. OSHA has determined that the data collection will assist the agency in its statutory mission to assure safe and healthful working conditions for working people (see 29 U.S.C. 651(b)). In addition, OSHA has determined that the expanded public access to establishment-specific, case-specific injury and illness data will allow employers, employees, potential employees, employee representatives, customers, potential customers, researchers, and the general public to make more informed decisions about workplace safety and health at a given establishment. OSHA believes that this accessibility will ultimately result in the reduction of occupational injuries and illnesses. OSHA estimates that this rule will have economic costs of $7.7 million per year, including $7.1 million per year to the private sector, with average costs of $136 per year for affected establishments with 100 or more employees, annualized over 10 years with a discount rate of seven percent. The agency believes that the annual benefits, while unquantified, significantly exceed the annual costs. C. Regulatory History As discussed in section II, Legal Authority, the Occupational Safety and Health Act (OSH Act or Act) requires employers to keep records of employee illnesses and injuries as prescribed by OSHA through regulation. OSHA's regulations on recording and reporting occupational injuries and illnesses (29 CFR part 1904) were first issued in 1971 (36 FR 12612 (July 2, 1971)). These regulations require the recording of work-related injuries and illnesses that involve death, loss of consciousness, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or diagnosis of a significant injury or illness by a physician or other licensed health care professional (29 CFR 1904.7). On July 29, 1977, OSHA amended these regulations to partially exempt businesses having ten or fewer employees during the previous calendar year from the requirement to record occupational injuries and illnesses (42 FR 38568). Then, on December 28, 1982, OSHA amended the regulations again to partially exempt establishments in certain lower-hazard industries from the requirement to record occupational injuries and illnesses (47 FR 57699). 1 OSHA also amended the recordkeeping regulations in 1994 (Reporting of Fatality or Multiple Hospitalization Incidents, 59 FR 15594) and 1997 (Reporting Occupational Injury and Illness Data to OSHA, 62 FR 6434). Under the version of § 1904.41 added by the 1997 final rule, OSHA began requiring certain employers to submit their 300A data to OSHA annually through the OSHA Data Initiative (ODI). Through the ODI, OSHA collected data on injuries and acute illnesses attributable to work-related activities in the private sector from approximately 80,000 establishments in selected high-hazard industries. The agency used these data to calculate establishment-specific injury and illness rates, and, in combination with other data sources, to target enforcement and compliance assistance activities. 1 All employers covered by the OSH Act are covered by OSHA's recordkeeping and reporting requirements found in 29 CFR part 1904. However, there are several exceptions to OSHA's recordkeeping requirements that apply unless OSHA or the Bureau of Labor Statistics (BLS) informs them in writing that they must keep records (29 CFR 1904.1(a)(1), 1904.2(a)(1)). For example, employers with ten or fewer employees, as well as businesses with establishments in certain industries, are partially exempt from keeping OSHA injury and illness records (29 CFR 1904.1, 1904.2). The provision excepts most employers covered by the OSH Act. All employers covered by the OSH Act, including those that are partially exempt from keeping injury and illness records, are still required to report work-related fatalities, in-patient hospitalizations, amputations, and losses of an eye to OSHA within specified timeframes under 29 CFR 1904.39. On January 19, 2001, OSHA issued a final rule amending its requirements for the recording and reporting of occupational injuries and illnesses (29 CFR parts 1904 and 1952), along with the forms employers use to record those injuries and illnesses (66 FR 5916). The final rule also updated the list of industries that are partially exempt from recording occupational injuries and illnesses. On September 18, 2014, OSHA again amended the regulations to require employers to report work-related fatalities and severe injuries—in-patient hospitalizations, amputations, and losses of an eye—to OSHA and to allow electronic reporting of these events (79 FR 56130). The final rule also revised the list of industries that are partially exempt from recording occupational injuries and illnesses. On May 12, 2016, OSHA amended the regulations on recording and reporting occupational injuries and illnesses to require employers, on an annual basis, to submit electronically to OSHA injury and illness information that employers are already required to keep under part 1904 (81 FR 29624). Under the 2016 revisions, establishments with 250 or more employees that are routinely required to keep records were required to electronically submit information from their OSHA Forms 300, 300A, and 301 to OSHA or OSHA's designee once a year, and establishments with 20 to 249 employees in certain designated industries were required to electronically submit information from their OSHA annual summary (Form 300A) to OSHA or OSHA's designee once a year. In addition, that final rule required employers, upon notification, to electronically submit information from part 1904 recordkeeping forms to OSHA or OSHA's designee. These provisions became effective on January 1, 2017, with an initial submission deadline of July 1, 2017, for 2016 Form 300A data. That submission deadline was subsequently extended to December 15, 2017 (82 FR 55761). The initial submission deadline for electronic submission of information from OSHA Forms 300 and 301 was July 1, 2018. Because of a subsequent rulemaking, OSHA never received the data submissions from Forms 300 and 301 that the 2016 final rule anticipated. On January 25, 2019, OSHA issued a final rule that amended the recordkeeping regulations to remove the requirement for establishments with 250 or more employees that are routinely required to keep records to electronically submit information from their OSHA Forms 300 and 301 to OSHA or OSHA's designee once a year. As a result, those establishments were required to electronically submit only information from their OSHA 300A annual summary. The 2019 final rule also added a requirement for covered employers to submit their Employer Identification Number (EIN) electronically along with their injury and illness data submission (83 FR 36494, 84 FR 380, 395-97). On March 30, 2022, OSHA issued a notice of proposed rulemaking (NPRM or proposed rule) proposing to amend the recordkeeping regulations to require establishments with 100 or more employees in certain designated industries to electronically submit information from their OSHA Forms 300 and 301 to OSHA once a year (87 FR 18528). In addition, OSHA proposed to continue the requirement for establishments with 20 or more employees in certain designated industries to electronically submit data from their OSHA Form 300A annual summary to OSHA once a year. OSHA also proposed to update the appendices containing the designated industries covered by the electronic submission requirement and to remove the requirement for establishments with 250 or more employees not in a designated industry to electronically submit information from their Form 300A to OSHA on an annual basis. Further, OSHA expressed its intention to post the data from the proposed electronic submission requirement on a public website after identifying and removing information that could reasonably be expected to identify individuals directly, such as individuals' names and contact information. Finally, OSHA proposed to require establishments to include their company name when making electronic submissions to OSHA. Comments on the NPRM were initially due on May 30, 2022 (87 FR18528). However, in response to requests for an extension, OSHA published a second Federal Register notice on May 25, 2022, extending the comment period until June 30, 2022 (87 FR 31793). By the end of the extended comment period, OSHA had received 87 comments on the proposed rule. The issues raised in those comments are addressed herein. D. Related Litigation Both the 2016 and 2019 OSHA final rules that addressed the electronic submission of injury and illness data were challenged in court. In Texo ABC/AGC, Inc., et al. v. Acosta, No. 3:16-cv-01998-L (N.D. Tex. filed July 8, 2016), and NAHB, et al. v. Acosta, No. 5:17-cv-00009-PRW (W.D. Okla. filed Jan. 4, 2017), industry groups challenged OSHA's 2016 final rule that required establishments with 250 or more employees to electronically submit data from their OSHA Forms 300 and 301 to OSHA (as well as other requirements not relevant to this rulemaking). The complaints alleged that the publication of establishment-specific injury and illness data would lead to misuse of confidential and proprietary information by the public and special interest groups. The complaints also alleged that publication of the data exceeds OSHA's authority under the OSH Act and is unconstitutional under the First Amendment to the U.S. Constitution. After OSHA published a notice in the Federal Register on June 28, 2017, noting that the agency planned to publish a proposal that would reconsider the requirements of the 2016 final rule (82 FR 29261), Texo was administratively closed. The plaintiffs in NAHB dropped their claims relating to the 300 and 301 data submission requirement after the 2019 final rule was published (and moved forward with their other claims, which are still pending in the Western District of Oklahoma). In Public Citizen Health Research Group et al. v. Pizzella, No. 1:19-cv-00166 (D.D.C. filed Jan. 25, 2019) and State of New Jersey et al. v. Pizzella, No. 1:19-cv-00621 (D.D.C. filed Mar. 6, 2019), a group of public health organizations and a group of States filed separate lawsuits challenging OSHA's 2019 final rule rescinding the requirement for certain employers to submit the data from OSHA Forms 300 and 301 to OSHA electronically each year. The U.S. District Court for the District of Columbia resolved the two cases in a consolidated opinion and held that rescinding the provision was within the agency's discretion ( Public Citizen Health Research Group et al. v. Pizzella, No. 1:19-cv-00166-TJK (D.D.C. Jan. 11, 2021)). The court first dismissed Public Citizen's complaint for lack of subject-matter jurisdiction. Next, turning to the merits of the States' complaint, the court held that OSHA's rescission of the Form 300 and Form 301 data-submission requirements was within the agency's discretion based on its rebalancing of the “uncertain benefits” of collecting the 300 and 301 data against the diversion of OSHA's resources from other efforts and potential privacy harms to employees. The court also rejected the plaintiffs' assertion that OSHA's reasons for the 2019 final rule were internally inconsistent. Both groups of plaintiffs have appealed to the U.S. Court of Appeals for the District of Columbia Circuit (Nos. 21-5016, 21-5018). Additionally, since 2020, the Department of Labor (DOL) has received multiple adverse decisions regarding the release of electronically submitted 300A data under the Freedom of Information Act (FOIA). In each of the cases, OSHA argued that electronically submitted 300A injury and illness data are exempt from disclosure pursuant to the confidentiality exemption in FOIA Exemption 4. Two courts, one in the U.S. District Court for the Northern District of California and another in the U.S. District Court for the District of Columbia, disagreed with OSHA's position (see Center for Investigative Reporting, et al., v. Department of Labor, No. 4:18-cv-02414-DMR, 2020 WL 2995209 (N.D. Cal. June 4, 2020); Public Citizen Foundation v. United States Department of Labor, et al., No. 1:18-cv-00117 (D.D.C. June 23, 2020)). In addition, on July 6, 2020, the Department received an adverse ruling from a magistrate judge in the Northern District of California in a FOIA case involving Amazon fulfillment centers. In that case, plaintiffs sought the release of individual 300A forms, which consisted of summaries of Amazon's work-related injuries and illnesses and which were provided to OSHA compliance officers during specific OSHA inspections of Amazon fulfillment centers in Ohio and Illinois (see Center for Investigative Reporting, et al., v. Department of Labor, No. 3:19-cv-05603-SK, 2020 WL 3639646 (N.D. Cal. July 6, 2020)). In holding that FOIA Exemption 4 was inapplicable, the courts rejected OSHA's position that electronically submitted 300A injury and illness data are covered under the confidentiality exemption in FOIA Exemption 4. The decisions noted that the 300A form is posted in the workplace for three months and that there is no expectation that the employer must keep these data confidential or private. As a result, OSHA provided the requested 300A data to the plaintiffs, and posted collected 300A data on its public website beginning in August 2020. The data are available at https://www.osha.gov/Establishment-Specific-Injury-and-Illness-Data and include the submissions for calendar years 2016, 2017, 2018, 2019, 2020, and 2021. E. Injury and Illness Data Collection Currently, two U.S. Department of Labor data collections request and compile information from the OSHA injury and illness records that certain employers are required to keep under 29 CFR part 1904: the annual collection conducted by OSHA under 29 CFR 1904.41 (Electronic Submission of Employer Identification Number (EIN) and Injury and Illness Records to OSHA), and the annual Survey of Occupational Injuries and Illnesses (SOII) conducted by the Bureau of Labor Statistics (BLS) under 29 CFR 1904.42. This final rule amends the regulation at § 1904.41. It does not change the SOII or the authority for the SOII set forth in § 1904.42. The BLS SOII is an establishment-based survey used to estimate nationally representative incidence rates and counts of workplace injuries and illnesses. It also provides detailed case and demographic data for cases that involve one or more days away from work (DAFW) and for days of job transfer and restriction (DJTR). Each year, BLS collects data from Forms 300, 301, and 300A from a scientifically selected probability sample of about 230,000 establishments, covering nearly all private-sector industries, as well as State and local government. Title 44 U.S.C. 3572 prohibits BLS from releasing establishment-specific and case-specific data to the general public or to OSHA. However, BLS has modified its collection procedures to be able to automatically import certain Form 300A submissions from the OSHA ITA into the BLS SOII Internet Data Collection Facility (IDCF). As discussed below, the Department is continuing to evaluate opportunities to further reduce duplicative reporting. II. Legal Authority A. Statutory Authority To Promulgate the Rule OSHA is issuing this final rule pursuant to authority expressly granted by several provisions of the OSH Act that address the recording and reporting of occupational injuries and illnesses. Section 2(b)(12) of the OSH Act states that one of the purposes of the OSH Act is to “assure so far as possible . . . safe and healthful working conditions . . . by providing for appropriate reporting procedures . . . which . . . will help achieve the objectives of th[e] Act and accurately describe the nature of the occupational safety and health problem” (29 U.S.C. 651(b)(12)). Section 8(c)(1) requires each employer to “make, keep and preserve, and make available to the Secretary [of Labor] . . . , such records regarding his activities relating to this Act as the Secretary . . . may prescribe by regulation as necessary or appropriate for the enforcement of this Act or for developing information regarding the causes and prevention of occupational accidents and illnesses” (29 U.S.C. 657(c)(1)). Section 8(c)(2) directs the Secretary to prescribe regulations “requiring employers to maintain accurate records of, and to make periodic reports on, work-related deaths, injuries and illnesses other than minor injuries requiring only first aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job” (29 U.S.C. 657(c)(2)). Section 8(g)(1) authorizes the Secretary “to compile, analyze, and publish, whether in summary or detailed form, all reports or information obtained under this section” (29 U.S.C. 657(g)(1)). Section 8(g)(2) of the Act broadly empowers the Secretary to “prescribe such rules and regulations as he may deem necessary to carry out [his] responsibilities under th[e] Act” (29 U.S.C. 657(g)(2)). Section 24 of the OSH Act (29 U.S.C. 673) contains a similar grant of authority. This section requires the Secretary to “develop and maintain an effective program of collection, compilation, and analysis of occupational safety and health statistics” and “compile accurate statistics on work injuries and illnesses which shall include all disabling, serious, or significant injuries and illnesses . . .” (29 U.S.C. 673(a)). Section 24 also requires employers to “file such reports with the Secretary as he shall prescribe by regulation” (29 U.S.C. 673(e)). These reports are to be based on “the records made and kept pursuant to section 8(c) of this Act” (29 U.S.C. 673(e)). Section 20 of the Act (29 U.S.C. 669) contains additional implicit authority for collecting and disseminating data on occupational injuries and illnesses. Section 20(a) empowers the Secretaries of Labor and Health and Human Services to consult on research concerning occupational safety and health problems, and provides for the use of such research, “and other information available,” in developing criteria on toxic materials and harmful physical agents. Section 20(d) states that “[i]nformation obtained by the Secretary . . . under this section shall be disseminated by the Secretary to employers and employees and organizations thereof” (29 U.S.C. 669(d)). The OSH Act authorizes the Secretary of Labor to issue two types of occupational safety and health rules: standards and regulations. Standards, which are authorized by Section 6 of the Act (29 U.S.C. 655), aim to correct particular identified workplace hazards, while regulations further the general enforcement and detection purposes of the OSH Act (see Workplace Health & Safety Council v. Reich, 56 F.3d 1465, 1468 (D.C. Cir. 1995) (citing La. Chem. Ass'n v. Bingham, 657 F.2d 777, 781-82 (5th Cir. 1981)); United Steelworkers of Am. v. Auchter, 763 F.2d 728, 735 (3d Cir. 1985)). Recordkeeping requirements promulgated under the Act are characterized as regulations (see 29 U.S.C. 657 (using the term “regulations” to describe recordkeeping requirements); see also Workplace Health & Safety Council v. Reich, 56 F.3d 1465, 1468 (D.C. Cir. 1995) (citing La. Chem. Ass'n. v. Bingham, 657 F.2d 777, 781-82 (5th Cir. 1981); United Steelworkers of Am. v. Auchter, 763 F.2d 728, 735 (3d Cir. 1985)). B. Fourth Amendment Issues This final rule does not infringe on employers' Fourth Amendment rights. The Fourth Amendment protects against searches and seizures of private property by the government, but only when a person has a “legitimate expectation of privacy” in the object of the search or seizure ( Rakas v. Illinois, 439 U.S. 128, 143-47 (1978)). There is little or no expectation of privacy in records that are required by the government to be kept and made available ( Free Speech Coalition v. Holder, 729 F. Supp. 2d 691, 747, 750-51 (E.D. Pa. 2010) (citing cases); United States v. Miller, 425 U.S. 435, 442-43 (1976); cf. Shapiro v. United States, 335 U.S. 1, 33 (1948) (no Fifth Amendment interest in required records)). Accordingly, the Fourth Circuit held, in McLaughlin v. A.B. Chance, that an employer has little expectation of privacy in the records of occupational injuries and illnesses kept pursuant to OSHA regulations and must disclose them to the agency on request (842 F.2d 724, 727-28 (4th Cir. 1988)). Even if there were an expectation of privacy, the Fourth Amendment prohibits only unreasonable intrusions by the government ( Kentucky v. King, 131 S. Ct. 1849, 1856 (2011)). The information submission requirements in this final rule are reasonable. The requirements serve a substantial government interest in the health and safety of workers, have a strong statutory basis, and rest on reasonable, objective criteria for determining which employers must report information to OSHA (see New York v. Burger, 482 U.S. 691, 702-703 (1987)). OSHA notes that two courts have held, contrary to A.B. Chance, that the Fourth Amendment requires prior judicial review of the reasonableness of an OSHA field inspector's demand for access to injury and illness logs before the agency could issue a citation for denial of access ( McLaughlin v. Kings Island, 849 F.2d 990 (6th Cir. 1988); Brock v. Emerson Electric Co., 834 F.2d 994 (11th Cir. 1987)). Those decisions are inapposite here. The courts based their rulings on a concern that field enforcement staff had unbridled discretion to choose the employers they would inspect and the circumstances in which they would demand access to employer records. The Emerson Electric court specifically noted that in situations where “businesses or individuals are required to report particular information to the government on a regular basis[,] a uniform statutory or regulatory reporting requirement [would] satisf[y] the Fourth Amendment concern regarding the potential for arbitrary invasions of privacy” (834 F.2d at 997, n.2). This rule, like that hypothetical, establishes general reporting requirements based on objective criteria and does not vest field staff with any discretion. The employers that are required to report data, the information they must report, and the time when they must report it are clearly identified in the text of the rule and in supplemental notices that will be published pursuant to the Paperwork Reduction Act. C. Publication of Collected Data and FOIA FOIA generally supports OSHA's intention to publish information on a publicly available website. FOIA provides that certain Federal agency records must be routinely made “available for public inspection in an electronic format” (see 5 U.S.C. 552(a)(2) (2016)). Subsection (a)(2)(D)(ii) provides that agencies must include any records processed and disclosed in response to a FOIA request that “the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records” or “have been requested 3 or more times.” Based on its experience, OSHA believes that the recordkeeping information from the Forms 300, 301, and 300A required to be submitted under this rule will likely be the subject of multiple FOIA requests in the future. Consequently, the agency plans to place the recordkeeping information that will be posted on the public OSHA website in its Electronic FOIA Library. Since agencies may “withhold” ( i.e., not make available) a record (or portion of such a record) if it falls within a FOIA exemption, just as they can do in response to FOIA requests, OSHA will place the published information in its FOIA Library consistent with all FOIA exemptions. D. Reasoned Explanation for Policy Change When a Federal agency action changes or reverses prior policy, that action is subject to the same standard of review as an action that addresses an issue for the first time or is consistent with prior policy ( F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 514-15 (2009)). As with any other agency action, agencies must simply “provide a reasoned explanation for the change” ( Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 221 (2016)). An agency that is changing policy must “display awareness that it is changing position,” but “need not demonstrate . . . that the reasons for the new policy are better than the reasons for the old one”; “it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates” ( F.C.C., 556 U.S. at 515; accord DHS v. Regents of Univ. of California, 140 S. Ct. 1891 (2020); Encino Motorcars, LLC, 579 at 221; see also Advocates for Highway & Auto Safety v. FMCSA, 41 F.4th 586 (D.C. Cir. 2022) (upholding 2020 change to 2015 rule); Overdevest Nurseries, L.P. v. Walsh, 2 F. 4th 977 (D.C. Cir. 2021) (upholding 2010 change to 2008 rule)). In sum, the Administrative Procedure Act imposes “no special burden when an agency elects to change course” ( Home Care Ass'n of Am. v. Weil, 799 F.3d 1084, 1095 (D.C. Cir. 2015)). Although agencies may need to provide more detailed explanations for changes in policy that “engendered serious reliance interests,” F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009), OSHA has found no such reliance interests at stake in this rulemaking. The prior policy, contained within the 2019 final recordkeeping rule, represented a return to the pre-2016 status quo wherein large employers were not required to submit their Form 300 and Form 301 information to OSHA. Essentially, the prior policy relieved employers of the requirement to incur the costs they would have had to incur to comply with the 2016 final rule. Therefore, the prior policy did not require employers to take any steps or invest any resources to comply with it. Further, OSHA made it clear in the 2019 final rule that its decision was based on a temporal weighing of the potential risks to privacy against the benefits of collecting the data ( e.g., “OSHA has determined that because it already has systems in place to use the 300A data for enforcement targeting and compliance assistance without impacting worker privacy, and because the Form 300 and 301 data would provide uncertain additional value, the Form 300A data are sufficient for enforcement targeting and compliance assistance at this time ” (84 FR 392)). Employers were therefore placed on notice that the policy announced in the 2019 rule could change based on OSHA's weighing of the relevant considerations over time, further alleviating any reliance interests the rule might have engendered. In any event, OSHA provides detailed and specific reasons for the change in prior policy throughout this preamble. 2 2 OSHA has determined that it is necessary and appropriate to require certain establishments to electronically submit case-specific, establishment-specific data from their Forms 300 and 301 to OSHA. Any claimed reliance interest in the prior policy, which did not contain that requirement, is outweighed by the significant benefits to occupational safety and health, discussed in Section III.B.4 of the Summary and Explanation, that OSHA expects to accrue from this rule (see Regents of the Univ. of California, 140 S. Ct. at 1914 (it is “the agency's job” to determine “in the particular context before it, that other interests and policy concerns outweigh any reliance interests”)). III. Summary and Explanation of the Final Rule OSHA is amending its occupational injury and illness recordkeeping regulations at 29 CFR part 1904 to require certain employers to electronically submit injury and illness information to OSHA that employers are already required to keep. Specifically, this final rule requires establishments with 100 or more employees in certain designated industries ( i.e., the industries on appendix B to subpart E of part 1904) to electronically submit information from their OSHA Forms 300 and 301 to OSHA once a year. OSHA will not collect certain information, like employee and healthcare provider names and addresses, from the Forms 300 and 301 in order to protect the privacy of workers and other individuals identified on those forms. In addition, the final rule retains the requirements for the annual electronic submission of information from the Form 300A annual summary. Establishments with 20 to 249 employees in certain industries ( i.e., those on appendix A to subpart E of part 1904) will continue to be required to electronically submit information from their OSHA Form 300A to OSHA once a year. And, all establishments with 250 or more employees that are required to keep records under part 1904 will continue to be required to electronically submit information from their Form 300A to OSHA once a year. In addition, the final rule requires establishments to include their legal company name as part of their annual submission. OSHA intends to post some of the information from these annual electronic submissions on a public website after removing any submitted information that could reasonably be expected to identify individuals directly. OSHA received a number of comments on the proposed rule, which was published in March 2022. Many commenters strongly support this rulemaking effort ( e.g., Docket IDs 0008, 0026, 0029, 0033, 0040, 0047, 0048, 0049, 0061, 0063, 0067, 0069, 0073, 0084, 0089), while others are strenuously opposed ( e.g., Docket IDs 0043, 0050, 0052, 0053, 0058, 0059, 0062, 0088, 0090). Several commenters requested that OSHA withdraw the proposed rule ( e.g., Docket IDs 0042, 0065, 0075). Organizations that represent employees generally advocated for OSHA to proceed with the rulemaking, arguing that collecting and publishing workplace illness and injury information will lead to improvements in worker safety and health in a number of different ways. Organizations commenting on behalf of employers argued, in many cases, that the required submission and subsequent publication of this information could harm businesses or result in violations of employees' privacy. OSHA has evaluated the public comments and other evidence in the record and agrees with commenters who believe that electronic submission of worker injury and illness information to OSHA will lead to safer workplaces. The agency has decided to move forward with a final rule requiring electronic submission of this information. Public comments regarding the final regulatory provisions and specific issues related to the submission and publication of workplace injury and illness information are discussed throughout this preamble. The Summary and Explanation is organized by regulatory provision, with issues related to each provision discussed in the section for that provision. Comments not specifically related to a regulatory provision and comments that apply to the rulemaking in general are addressed at the end of the Summary and Explanation. OSHA's economic analysis and related issues and comments are discussed in Section IV, Final Economic Analysis, following the Summary and Explanation. A. Section 1904.41(a)(1)(i) and (ii)—Annual Electronic Submission of Information From OSHA Form 300A Summary of Work-Related Injuries and Illnesses The final rule requires electronic submission of Form 300A information from two categories of establishments. First, § 1904.41(a)(1)(i) requires establishments with 20-249 employees that are in an industry listed in appendix A of subpart E of part 1904 to electronically submit information from their Form 300A to OSHA. The industries included on appendix A are listed by the NAICS codes from 2017. Second, § 1904.41(a)(1)(ii) requires establishments with 250 or more employees that are required to keep records under part 1904 to electronically submit their Form 300A information to OSHA. For all establishments, the size of the establishment is determined based on how many employees the establishment had during the previous calendar year. Data must be submitted annually, for the previous calendar year, by the date specified in § 1904.41(c), which is March 2. As discussed in more detail below, the requirements for establishment submission of Form 300A information under the final rule are substantively identical to the requirements previously found in § 1904.41(a)(1) and (a)(2). In other words, all establishments with 250 or more employees are still required to submit information from Form 300A, and establishments with 20-249 employees in industries on appendix A of subpart E are still required to submit information from their Form 300A. However, OSHA has made minor revisions to the language of final § 1904.41(a)(1)(i) and (ii), and the final regulatory text of both provisions has been restructured, with final § 1904.41(a)(1)(i) addressing the Form 300A submission requirements for establishments with 20-249 employees and final § 1904.41(a)(1)(ii) addressing the Form 300A submission requirements for establishments with 250 or more employees. As discussed elsewhere in this preamble, final § 1904.41(a)(2) addresses the submission requirements for OSHA Forms 300 and 301 by establishments with 100 or more employees in the industries listed in appendix B. The final rule's requirements in § 1904.41(a)(1) are discussed below, along with the proposed provisions and related evidence in the rulemaking record. 1. Section 1904.41(a)(1)(i)—Establishments With 20-249 Employees That Are Required To Submit Information From OSHA Form 300A Under proposed § 1904.41(a)(1), establishments that had 20 or more employees at any time during the previous calendar year, and that are classified in an industry listed in appendix A to subpart E, would have been required to electronically submit information from their OSHA Form 300A to OSHA or OSHA's designee once a year. As OSHA explained in the preamble to the NPRM, this proposed provision was essentially the same as the previous requirements. OSHA requested comment on proposed § 1904.41(a)(1) generally. OSHA did not receive many comments specifically about the proposed continuation of the requirement for certain establishments with 20 or more employees to submit their Form 300A data electronically. The Laborers Health and Safety Fund of North America stated that the proposal for establishments with 20 or more employees in certain high-hazard industries to electronically submit Form 300A data to OSHA “must be a requirement,” and emphasized the value of the data for numerous interested parties (Docket ID 0080). The Communications Workers of America (CWA) urged OSHA to expand the submission requirements for the 300A by requiring all establishments with at least 20 employees to submit information from the Form 300A, instead of limiting the requirement to only those industries on appendix A (Docket ID 0092). In addition, the National Federation of Independent Business (NFIB) commented on this provision, noting that “the proposed rule lowers the previous threshold that triggers a duty to file with OSHA automatically ( i.e., without any request from OSHA) from 250 or more employees to 20 or more employees, increasing the number of small and independent businesses within the appendix A industries required to submit Form 300A” (Docket ID 0036). However, NFIB's comment appears to misunderstand the previous requirements. As OSHA explained in the preamble to the proposed rule, establishments with 20-249 employees, in industries listed in appendix A, were already required to electronically submit information from their OSHA 300A to OSHA every year (87 FR18535-6). OSHA was not proposing an expansion of this requirement. Having reviewed the evidence in the record, OSHA has decided to retain the requirement for establishments with 20-249 employees to annually submit their Form 300A data to OSHA. As noted by the Laborers Health and Safety Fund of North America and discussed further below, this requirement provides a good deal of useful data to many types of interested parties and should not be displaced. OSHA acknowledges the comments supporting expansion of the previous requirement but notes that expanding the requirement for submission of Form 300A data to all establishments with 20-249 employees that are covered by part 1904 would expand the data collection to a total of about 557,000 establishments with 20-249 employees, according to 2019 County Business Patterns data ( https://www.census.gov/programs-surveys/cbp/data/datasets.html ). In contrast, OSHA estimates that about 463,000 establishments with 20-249 employees in industries that are in appendix A will be required to submit data under the final rule ( https://www.census.gov/programs-surveys/cbp/data/datasets.html ). OSHA does not believe, at this time, that the benefits from the additional data collection would outweigh the disadvantages of the additional time and resources required for compliance. In the previous regulation, this requirement was at § 1904.41(a)(2). In the final rule, it is at § 1904.41(a)(1)(i). This final rule will not impose any new requirements on establishments with 20-249 employees to electronically submit information from their Form 300A to OSHA. All establishments that will be required to electronically submit Form 300A information to OSHA on an annual basis under the final rule are already required to do so. Additionally, as noted above, OSHA revised the language of this requirement slightly for clarity. Specifically, the previous version referred to establishments with “20 or more employees but fewer than 250 employees[,]” while final § 1904.41(a)(1)(i) refers to establishments with “20-249 employees[.]” These clarifying edits do not change the substantive requirements of the provision. Similarly, OSHA revised the language of proposed § 1904.41(a)(1) in this final rule for clarity without adding any new requirements for employers. Specifically, proposed § 1904.41(a)(1) would have required establishments with 20 or more employees that are in an industry listed in appendix A of subpart E of part 1904 to electronically submit information from their Form 300A to OSHA. The final version of that provision, § 1904.41(a)(1)(i), addresses only establishments with 20-249 employees, because final § 1904.41(a)(1)(ii) addresses establishments with 250 or more employees. This change was made to eliminate the overlap, and potential confusion, that would have resulted if both § 1904.41(a)(1)(i) and § 1904.41(a)(1)(ii) addressed establishments with 250 or more employees. 2. Section 1904.41(a)(1)(ii)—Establishments With 250 or More Employees That Are Required To Submit Information From OSHA Form 300A Although OSHA proposed to maintain the same Form 300A submission requirement for establishments with 20-249 employees, the agency proposed to remove the electronic submission requirement for certain establishments with 250 or more employees. Under previous § 1904.41(a)(1), all establishments of this size in industries routinely required to keep injury and illness records were required to electronically submit information from their Form 300A to OSHA once a year. The proposal would have required this submission only from those establishments with 250 or more employees in industries listed in appendix A to subpart E. As explained in the preamble to the proposed rule, OSHA had preliminarily determined that collecting Form 300A data from a relatively small number of large establishments in lower-hazard industries was not a priority for OSHA inspection targeting or compliance assistance activities. OSHA asked for comment on the proposed changes to § 1904.41(a)(1) generally, and also specifically asked the question, “Is it appropriate for OSHA to remove the requirement for establishments with 250 or more employees, in industries not included in appendix A, to submit the information from their OSHA Form 300A?” (87 FR18546). There were no comments specifically supporting the proposal to remove the requirement for establishments with 250 or more employees, in industries not included in appendix A, to submit the information from their OSHA Form 300A. In contrast, multiple commenters opposed the proposal and urged OSHA to retain the existing requirement for establishments with 250 or more employees that are normally required to report under part 1904 to submit data from their 300As ( e.g., Docket IDs 0024, 0035, Attachment 2, 0039, 0040, 0045, 0047, 0048, 0049, 0051, 0061, 0066, 0067, 0069, 0079, 0080, 0083, 0089, 0092, 0093). Reasons for objecting to the proposed removal of the requirement for some large establishments to submit data from their Form 300As included: OSHA offered no compelling reason for removal; the need for continued oversight over large establishments in lower-hazard industries in general and certain industries in particular; the ability to use the data to protect the large number of employees employed in these establishments; and the value of the public information to employee safety and health efforts. Some commenters argued that OSHA had not made a persuasive case for removing the requirement for large establishments in industries not listed on appendix A to submit their 300A data. For example, Hunter Cisiewski commented, “The proposed rule ultimately fails to present a compelling argument for why `lower hazard' industries should no longer be required to electronically submit Form 300A when they must still keep record of the form, present it to employees on request, and post it publicly in the workplace” (Docket ID 0024). The AFL-CIO argued, “There is no reason that these establishments should be excluded from a standard they are already subject to and have been complying with. OSHA should at minimum, maintain the requirements for large establishments in these sectors that are already in place” (Docket ID 0061; see also Docket ID 0079). Similarly, Public Citizen and the United Food and Commercial Workers International Union (UFCW) noted that there would be no significant burden on employers to maintaining the requirement because these employers are already required to keep Form 300A data and they have systems in place for submitting the data to OSHA electronically (Docket IDs 0093, 0066). The United Steelworkers Union (USW) argued that keeping industries covered helps increase the stability of the system. USW urged OSHA to “focus on expanding, not limiting, those covered by disclosure requirements, and to ensure that all employers currently covered by the reporting requirements remain covered” (Docket ID 0067; see also Docket ID 0080). The UFCW stated that “[A]ll available evidence reflects that OSHA's current requirements provide easy access to important data that is crucial to reducing and preventing workplace injuries and illnesses” (Docket ID 0066). Other commenters, such as the National Institute for Occupational Safety and Health (NIOSH) and the International Brotherhood of Teamsters, noted that although the industries that are not listed in appendix A may have relatively low injury rates overall, “injury rates can vary greatly across employers and establishments within industries. The requirement for large establishments to submit a 300A Log annually would be a reasonable way to identify establishments that have high injury rates for their industry, and to identify subsegments of industries that may have more hazardous work processes and activities” (Docket ID 0035, Attachment 2; see also Docket ID 0083). Similarly, the Seventeen Attorneys General from New Jersey, California, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, New York, Oregon, Rhode Island, and Vermont (Seventeen AGs) noted their states' concern that removing the 300A submission requirement for “lower-hazard” industries would leave Federal OSHA and State occupational safety and health agencies with little way of determining whether these industries were becoming more dangerous for workers over time. This, in turn, could affect the States' outreach and enforcement efforts. “For example, if [s]tates had previously conducted enforcement and outreach in `low hazard' industries, thus keeping risks down, but deprioritize such enforcement based on a lack of reporting, any uptick of illnesses and injuries in those industries, requiring enforcement efforts, may initially go unnoticed by the [s]tates” (Docket ID 0045). Other commenters emphasized the significant number of workers employed by the large establishments that OSHA had proposed to exclude from submitting their 300A data, and the usefulness of the data in providing them with safe work environments. Hunter Cisiewski estimated that at least 666,250 workers are employed by the approximately 2,665 establishments with 250 or more employees that were proposed to be removed from the Form 300A submission requirement (assuming that each establishment employs only 250 workers). The same commenter also noted that the workers in these large establishments already rely on the required reporting of their injuries to OSHA “to ensure compliance with workplace regulations” (Docket ID 0024). Similarly, the Council of State and Territorial Epidemiologists (CSTE) noted that even if the industries proposed for exclusion have lower injury and illness rates than the industries on appendix A, they employ a large number of people. “Numbers [of workers] as well as rates of work-related injuries or illness need to be considered in setting prevention priorities. These establishments need to provide a safe work environment, and electronic collection of summary data will allow OSHA and public health agencies to monitor their ability to do so” (Docket ID 0040). The International Brotherhood of Teamsters commented, “we think continuing to collect OSHA 300A data for the large numbers of workers employed in these establishments, would help to identify less obvious problems and implement corresponding preventive measures” (Docket ID 0083). Various commenters pointed to known or potentially hazardous industry segments that would have been exempt from submitting 300A data under the proposal. For example, the National Council for Occupational Safety and Health (National COSH) as well as the Centro de los Derechos del Migrantes pointed to the temporary service industry and the home health care industry as industries with known hazards for which OSHA and the public should have access to injury and illness data (Docket IDs 0048, 0089; see also Docket ID 0049). The AFL-CIO pointed to home health services, an industry heavily affected by COVID-19, employment services, which includes vulnerable temporary workers, and some wholesalers with rates of cases with days away from work, restricted work activity, or job transfer (DART) above 2.0 per 10,000 workers in 2020 ( e.g., NAICS 4231, 4233, 4235, 423930, 4244, 4248, 4249) as industries containing large establishments that would be newly exempted from the 300A submission requirements The AFL-CIO argued that “limiting the data these industries provide the agency would severely limit the ability to track and identify emerging workplace hazards” (Docket ID 0061). Some commenters argued that maintaining the existing 300A reporting requirement for all large establishments is particularly important because the industries on appendix A reflect injury and illness data from the BLS SOII that is not current. Therefore, exempting industries not on appendix A could result in missing information from industries that may have become more dangerous since publication of the SOII data for 2011 to 2013. The United Steelworkers Union (USW) commented, “By tying the proposed rule to outdated and underreported injury and illness data, many employers with 250 or more employees in potentially high-hazard industries would be exempted, limiting workers' ability to make informed decisions about a workplace's safety and health. . . . These industries are currently covered by reporting requirements and many, like home health, have seen a rise in injuries and illnesses since the COVID-19 pandemic began” (Docket ID 0067). Public Citizen echoed this comment, stating that past injury rates, which are used to designate industries required to submit data, may not reflect more recent safety conditions. Public Citizen noted, in addition, that the pandemic served as a reminder “that even seemingly `low-hazard' workplaces can be the epicenter of deadly outbreaks” (Docket ID 0093). Finally, a number of commenters underscored the value of the 300A data that is being collected from large establishments. The UFCW urged OSHA to retain the requirement for collection from all large establishments because it would allow many types of users (the public, employers, workers, researchers, and the government) to use the data “in the very positive ways that the UFCW has used it” already. The UFCW described, in its comment, the many specific ways in which UFCW has used published and union-collected illness and injury data from the OSHA Form 300A, among other information, to increase safety and health at large union-represented facilities (Docket ID 0066). Public Citizen commented that “the value of continuing to collect the information from these employers outweighs any supposed burden . . . data collected from electronic submission of injury and illness information can help identify broad patterns from small injury and illness numbers per establishment. Having this additional data from Form 300A summaries would assist with research into specific types of injuries and illnesses” (Docket ID 0093). In addition to supporting maintenance of the requirement for submission of 300A data by large establishments, several commenters supported expanding the submission requirements for large establishments even further. For example, the National Employment Law Project (NELP) supported requiring all employers with 250 or more employees to submit information from the Form 300 Log in addition to the Form 300A. NELP argued that certain industries, such as home health care and employment services, contain very large employers that have Total Case Rates (TCRs) that are well above the private sector average. NELP therefore urged OSHA to retain as well as expand electronic submission requirements for large establishments with 250 or more employees in industries that are required to keep records under part 1904 so that researchers and other organizations could more effectively track and monitor occupational health and safety trends in home health care, employment services, and other sectors (Docket ID 0049; see also Docket ID 0089). The Laborers' Health and Safety Fund of North America argued that OSHA should require all establishments with 250 or more employees to submit the Form 300 and Form 301, in addition to the Form 300A: “Establishments with 250 or more employees account for large contractors that work on larger construction sites that can be considered high-risk. For these reasons, establishments should be required to submit electronic OSHA 300, 300A and 301 forms to not only track injury and illness, but prove to OSHA that they are taking the steps to mitigate and prevent them from happening” (Docket ID 0080). Having reviewed the information in the record on this issue, OSHA has decided not to make the proposed change of restricting the universe of large establishments that are required to submit data from Form 300A. Instead, the agency will maintain the requirement for all establishments with 250 or more employees that are covered by part 1904 to submit the information from their OSHA Form 300A to OSHA, or its designee, once a year. As explained by commenters, these establishments are already submitting this information, so there is no new burden for employers. Furthermore, access to the information provides multiple benefits for workers, Federal and State occupational safety and health agencies, and other interested parties. For example, continuing to collect and make this data available to the public will allow tracking of industry hazards over time, even for industries that are not on appendix A. Commenters noted that this type of tracking was particularly critical for industry segments and establishments that have injury rates higher than the rate for their 4-digit NAICS industry overall. They also noted that requiring information to be submitted from all large establishments will help blunt the effect of using SOII data that is several years old in determining which NAICS will be included on appendix A. OSHA agrees with these rationales. Although OSHA stated in the proposal that collecting Form 300A data from this relatively small number of large establishments in lower-hazard industries is not a priority for OSHA inspection targeting or compliance assistance, OSHA is persuaded by commenters who see the value in providing such data to the public; this includes the UFCW, which has been using this data to make positive safety and health changes in large establishments. In addition, OSHA recognizes the large number of workers represented by the relatively small number of establishments that would have been affected by the proposed change and does not wish to remove resources that could be used to improve their safety and health. OSHA acknowledges the comments supporting expansion of the final requirement by requiring submission of information from Forms 300 and 301 by all large establishments (250 or more employees) required to keep records under part 1904. However, this change would expand the universe of large establishments required to submit Form 300 and Form 301 data from about 22,000 (establishments with at least 250 employees that are in NAICS listed on appendix B) to about 40,000 (establishments with at least 250 employees that are required to keep records under part 1904), an increase of 80 percent (data are as of 2019; see https://www.census.gov/programs-surveys/cbp/data/datasets.html ). OSHA does not believe, at this time, that the benefits from the additional data collection would outweigh the disadvantages of the additional time and resources that employers would have to expend to comply. OSHA also values the stability provided to employers by keeping the universe of establishments required to submit 300A data the same, in light of the multiple recent changes to OSHA's data submission requirements. In the previous regulation, this requirement was at § 1904.41(a)(1). In the final rule, it is at § 1904.41(a)(1)(ii). This final rule will not impose any new requirements on establishments to electronically submit information from their Form 300A to OSHA. All establishments that will be required to electronically submit Form 300A information to OSHA on an annual basis under the final rule were already required to do so under the previous regulation. OSHA made only one non-substantive change in the final regulatory text; whereas the previous regulatory text at § 1904.41(a)(1) contained an example stating that data for calendar year 2018 would be submitted by the month and day listed in § 1904.41(c) of calendar year 2019, that example has been removed from the final regulatory provision at § 1904.41(a)(1)(ii). A similar, updated example is included in final § 1904.41(b)(1). 3. Restructuring of Previous Section 1904.41(a)(1) and (2) Into Final Section 1904.41(a)(1)(i) and (ii) In the preamble to the proposed rule, OSHA asked the following question about the structure of the regulatory text containing the requirements to submit data from OSHA injury and illness recordkeeping forms: “The proposed regulatory text is structured as follows: § 1904.41(a)(1) Annual electronic submission of information from OSHA Form 300A Summary of Work-Related Injuries and Illnesses by establishments with 20 or more employees in designated industries; § 1904.41(a)(2) Annual electronic submission of information from OSHA Form 300 Log of Work-Related Injuries and Illnesses, OSHA Form 301 Injury and Illness Incident Report, and OSHA Form 300A Summary of Work-Related Injuries and Illnesses by establishments with 100 or more employees in designated industries. This is the structure used by the 2016 and 2019 rulemakings. An alternative structure would be as follows: § 1904.41(a)(1) Annual electronic submission of information from OSHA Form 300A Summary of Work-Related Injuries and Illnesses by establishments with 20 or more employees in designated industries; § 1904.41(a)(2) Annual electronic submission of information from OSHA Form 300 Log of Work-Related Injuries and Illnesses and OSHA Form 301 Injury and Illness Incident Report by establishments with 100 or more employees in designated industries. Which structure would result in better understanding of the requirements by employers?” (87 FR 18547). OSHA did not receive many comments on this proposed alternative structure for the regulatory text. However, NIOSH noted that it preferred the second option. “NIOSH finds the second alternative . . . to be somewhat preferable. That alternative focuses first on which establishments are required to submit OSHA Form 300A, and then focuses on which establishments are required to submit OSHA Forms 300 and 301. This structure may help employers to more directly answer their questions about what forms to submit” (Docket ID 0035, Attachment 2). OSHA agrees that the proposed alternative structure, which separates the provisions by recordkeeping form, may help employers better understand the regulatory requirements for their establishments. Based on this reasoning, as well as on OSHA's decision to retain the requirement for all establishments with 250 or more employees in industries covered by part 1904 to submit information from their Form 300A annual summary (discussed above), OSHA has decided to restructure the final regulation by recordkeeping form, rather than establishment size and industry. Therefore, in the final rule, § 1904.41(a)(1) covers the requirement to submit the OSHA Form 300A, with § 1904.41(a)(1)(i) for establishments with 20-249 employees in appendix A industries, and § 1904.41(a)(1)(ii) for establishments with 250 or more employees in industries covered by part 1904. Final § 1904.41(a)(2) covers the requirement to submit the OSHA Forms 300 and 301, as discussed below. 4. Updating Appendix A Additionally, OSHA proposed to revise appendix A to subpart E to update the list of designated industries to conform with the 2017 version of the North American Industry Classification System (NAICS). Since OSHA revised § 1904.41 in 2016, the Office of Management and Budget has issued two updates to the NAICS codes, in 2017 and 2022. As explained in the preamble to the proposed rule, OSHA believed that the proposed update from 2012 NAICS to 2017 NAICS would have the benefits of using more current NAICS codes, ensuring that both proposed appendix A and proposed appendix B used the same version of NAICS, aligning with the version currently used by BLS for the SOII data that OSHA used for this rulemaking, and increasing the likelihood that employers were familiar with the industry codes. As OSHA explained, this revision would not affect which industries were required to provide their data, but rather simply reflect the updated 2017 NAICS codes. For appendix A, OSHA limited the scope of this rulemaking to the proposed update from the 2012 version of NAICS to the 2017 version of NAICS. The change from the 2012 NAICS to the 2017 NAICS would affect only a few industry groups at the 4-digit NAICS level. Specifically, the 2012 NAICS industry group 4521 (Department Stores) is split between the 2017 NAICS industry groups 4522 (Department Stores) and 4523 (General Merchandise Stores, including Warehouse Clubs and Supercenters). Also, the 2012 NAICS industry group 4529 (Other General Merchandise Stores) is included in 2017 NAICS industry group 4523 (General Merchandise Stores, including Warehouse Clubs and Supercenters). As noted above, however, the establishments in these industries were already covered by the previous record submission requirements, so this would not represent a substantive change in those requirements. The Phylmar Regulatory Roundtable (PRR) supported the proposed update from the 2012 version of NAICS to the 2017 version of NAICS for appendix A, commenting, “It is both practical and logical to align with the most recent codes from an accuracy standpoint” (Docket ID 0094). The Coalition for Workplace Safety (CWS), on the other hand, commented that using the 2017 NAICS codes for Appendices A and B when the 2022 codes have already been released by OMB will lead to confusion and mistakes, unduly complicating the proposed requirements (Docket ID 0058). While OSHA did not propose modifications to appendix A other than the update from 2012 NAICS to 2017 NAICS, OSHA did discuss one alternative in the proposal that would affect the industries on appendix A: updating appendix A to reflect the 2017-2019 injury rates from the SOII. Appendix A is based on the SOII's injury rates from 2011-2013. This alternative would have resulted in the addition of one industry to appendix A (NAICS 4831 (Deep sea, coastal, and great lakes water transportation)) and the removal of 13 industries (4421 Furniture Stores, 4452 Specialty Food Stores, 4853 Taxi and Limousine Service, 4855 Charter Bus Industry, 5152 Cable and Other Subscription Programming, 5311 Lessors of Real Estate, 5321 Automotive Equipment Rental and Leasing, 5323 General Rental Centers, 6242 Community Food and Housing, and Emergency and Other Relief Services, 7132 Gambling Industries, 7212 RV (Recreational Vehicle) Parks and Recreational Camps, 7223 Special Food Services, and 8113 Commercial and Industrial Machinery and Equipment (except Automotive and Electronic) Repair and Maintenance). OSHA did not receive many comments in response to this alternative. The AFL-CIO stated that the use of “outdated” SOII data to determine the industries on appendix A would lead to missing information from industries that might have become (or might become in the future) more hazardous since the time period used as the basis for appendix A (2011-2013). However, this statement was made in the context of the AFL-CIO's argument that OSHA should not restrict the large establishments required to submit 300A data to those in industries on appendix A, as OSHA proposed. Because OSHA is not adopting that approach, and instead is requiring all large establishments covered by part 1904 to continue submitting data from Form 300A, OSHA believes this concern will be minimized under the final regulatory requirements. Having reviewed the record, OSHA has decided to update appendix A to subpart E from the 2012 version of NAICS to the 2017 version of NAICS. As the PRR commented, it is practical and logical to align the industry list in appendix A with the more recent NAICS codes (see Docket ID 0094). Indeed, employers are likely more familiar with the 2017 codes than the 2012 codes. This change would also ensure that appendices A and B use the same version of NAICS. Finally, the 2017 NAICS codes are used by BLS for the SOII data that OSHA is using for this rulemaking. While CWS stated that using the 2017 codes when the 2022 codes have already been released will cause confusion (Docket ID 0058), OSHA notes that both appendices are based on SOII data from BLS, and that no SOII data using the 2022 NAICS codes are currently available. SOII data for 2022 will not be available until November 2023. Thus, it is not possible for OSHA to base appendix A or B on SOII data that use the 2022 NAICS codes, even though the 2022 codes are the most recent ones available. OSHA has also decided not to update appendix A using more recent SOII data. As discussed in the preamble to the proposed rule, it took several years for the regulated community to understand which industries were and were not required to submit information, and such misunderstandings could result in both underreporting and overreporting. OSHA has determined that changing the covered industries, by changing the data that forms the basis for the NAICS on appendix A, would result in additional confusion for the regulated community that is not warranted at this time. Moreover, three of the industries that would be removed from appendix A if OSHA based that appendix on updated data are also listed in appendix B, indicating that they remain hazardous under other measures. Finally, as noted above, OSHA agrees with interested parties who commented that requiring information to be submitted from all large establishments will help blunt the effect of using the older SOII data in determining which NAICS will be included on appendix A. The final appendix A to subpart E of part 1904 (Designated industries for § 1904.41(a)(1)(i) Annual electronic submission of information from OSHA Form 300A Summary of Work-Related Injuries and Illnesses by establishments with 20-249 employees in designated industries) is as follows: 3 3 As noted in the NPRM, OSHA proposed to remove NAICS 7213, Rooming and Boarding Houses, from appendix A (see 87 FR 18536, n.7). Employers in NAICS 7213 are not required to routinely keep OSHA injury and illness records, per the part 1904 non-mandatory appendix A to subpart B. This NAICS industry group was mistakenly included in appendix A to subpart E when OSHA published its 2016 final rule (see 81 FR 29642). OSHA received no comments objecting to the removal of NAICS 7213 from appendix A to subpart E and thus has excluded this industry group from the final version of this appendix. NAICS Industry 11 Agriculture, Forestry, Fishing and Hunting. 22 Utilities. 23 Construction. 31-33 Manufacturing. 42 Wholesale Trade. 4413 Automotive Parts, Accessories, and Tire Stores. 4421 Furniture Stores. 4422 Home Furnishings Stores. 4441 Building Material and Supplies Dealers. 4442 Lawn and Garden Equipment and Supplies Stores. 4451 Grocery Stores. 4452 Specialty Food Stores. 4522 Department Stores. 4523 General Merchandise Stores, including Warehouse Clubs and Supercenters. 4533 Used Merchandise Stores. 4542 Vending Machine Operators. 4543 Direct Selling Establishments. 4811 Scheduled Air Transportation. 4841 General Freight Trucking. 4842 Specialized Freight Trucking. 4851 Urban Transit Systems. 4852 Interurban and Rural Bus Transportation. 4853 Taxi and Limousine Service. 4854 School and Employee Bus Transportation. 4855 Charter Bus Industry. 4859 Other Transit and Ground Passenger Transportation. 4871 Scenic and Sightseeing Transportation, Land. 4881 Support Activities for Air Transportation. 4882 Support Activities for Rail Transportation. 4883 Support Activities for Water Transportation. 4884 Support Activities for Road Transportation. 4889 Other Support Activities for Transportation. 4911 Postal Service. 4921 Couriers and Express Delivery Services. 4922 Local Messengers and Local Delivery. 4931 Warehousing and Storage. 5152 Cable and Other Subscription Programming. 5311 Lessors of Real Estate. 5321 Automotive Equipment Rental and Leasing. 5322 Consumer Goods Rental. 5323 General Rental Centers. 5617 Services to Buildings and Dwellings. 5621 Waste Collection. 5622 Waste Treatment and Disposal. 5629 Remediation and Other Waste Management Services. 6219 Other Ambulatory Health Care Services. 6221 General Medical and Surgical Hospitals. 6222 Psychiatric and Substance Abuse Hospitals. 6223 Specialty (except Psychiatric and Substance Abuse) Hospitals. 6231 Nursing Care Facilities (Skilled Nursing Facilities). 6232 Residential Intellectual and Developmental Disability, Mental Health, and Substance Abuse Facilities. 6233 Continuing Care Retirement Communities and Assisted Living Facilities for the Elderly. 6239 Other Residential Care Facilities. 6242 Community Food and Housing, and Emergency and Other Relief Services. 6243 Vocational Rehabilitation Services. 7111 Performing Arts Companies. 7112 Spectator Sports. 7121 Museums, Historical Sites, and Similar Institutions. 7131 Amusement Parks and Arcades. 7132 Gambling Industries. 7211 Traveler Accommodation. 7212 RV (Recreational Vehicle) Parks and Recreational Camps. 7223 Special Food Services. 8113 Commercial and Industrial Machinery and Equipment (except Automotive and Electronic) Repair and Maintenance. 8123 Drycleaning and Laundry Services. B. Section 1904.41(a)(2)—Annual Electronic Submission of OSHA Form 300 Log of Work-Related Injuries and Illnesses and OSHA Form 301 Injury and Illness Incident Report by Establishments With 100 or More Employees in Designated Industries Section 1904.41(a)(2) of the final rule requires establishments that (1) had 100 or more employees at any point during the previous calendar year and (2) are classified in one of the industries listed in appendix B to subpart E of part 1904 to electronically submit certain information from their Forms 300 and 301 to OSHA or OSHA's designee. Data from the 300 and 301 forms must be submitted annually, for the previous calendar year, by March 2 (§ 1904.41(c)). The only change from the proposed rule is the deletion of the proposed rule's reference to Form 300A. That reference has been deleted from this provision because the requirements for establishments to submit Form 300A are contained in § 1904.41(a)(1)(i) and (ii) in this final rule. Comments related to the submission of Form 300A are discussed in that section. Appendix B has also changed from the proposal. Specifically, OSHA has added six industries to appendix B. All six of the industries added to appendix B have been part of appendix A since appendix A's creation in 2016. As discussed in Section I.C, Regulatory History, in 2016, OSHA issued a final rule that required establishments with 250 or more employees that are routinely required to keep injury and illness records under part 1904 to electronically submit information from their 300 and 301 forms to OSHA once a year. However, OSHA never collected that Form 300 and 301 data, and in 2019, it issued a final rule that removed the requirement for these establishments to electronically submit that information to OSHA. As noted above, in this rulemaking, OSHA re-proposed a requirement for certain establishments to submit information from their 300 and 301 forms to OSHA annually. The proposed provision in this rulemaking differed from the 2016 final rule in that the proposed provision would apply to establishments that (1) had 100 or more employees (rather than 250 or more employees, as in the 2016 final rule) and (2) are classified in an industry listed in appendix B to subpart E of part 1904 (rather than all industries which are required by part 1904 to keep records, as in the 2016 rule). OSHA received a wide range of comments on the proposed provision. The issues related to these comments are addressed below. 1. Covered Establishments and Industries Like the proposed rule, § 1904.41(a)(2) of the final rule requires establishments that had 100 or more employees at any time during the previous calendar year, and that are in an industry listed in final appendix B to subpart E, to electronically submit certain information from their Form 300 and 301 to OSHA or OSHA's designee once a year. As discussed in more detail below, under final paragraph 1904.41(c), employers subject to the reporting requirement in § 1904.41(a)(2) must submit all of the required information to OSHA or OSHA's designee by March 2 of the year after the calendar year covered by the forms. As discussed above, in 2016, OSHA issued a final rule that required all establishments with 250 or more employees in all industries routinely required to keep part 1904 injury and illness records to electronically submit information from their 300 and 301 forms to OSHA once a year. In that rulemaking, OSHA estimated that establishments with 250 or more employees covered by the submission requirement would report 713,397 injury and illness cases each year. However, the 300 and 301 data submission requirements from the 2016 final rule were never fully implemented, and OSHA never collected 300 and 301 data electronically from covered employers. In 2019, OSHA issued a final rule that removed the requirement for the annual electronic submission of 300 and 301 data to OSHA. In the NPRM in this rulemaking, OSHA explained that in developing the requirement for establishments with 100 or more employees to electronically submit data from their OSHA Form 300 and 301, OSHA sought to balance the utility of the information collection for enforcement, outreach, and research, on the one hand, and the burden on employers to provide the information to OSHA, on the other hand (see 87 FR 18543). To achieve this balance in the proposed rule, OSHA analyzed five years of injury and illness Form 300A summary data collected through OSHA's ITA. OSHA examined combinations of establishment size and industry hazardousness that, like the 2016 final rule, would provide the agency with information on roughly 750,000 cases of injuries and illnesses per year—roughly the same burden as the case-specific requirement in the 2016 final rule. Based on this analysis, OSHA proposed a reporting requirement for establishments with 100 or more employees in 4-digit NAICS (2017) industries that: 1. had a 3-year-average Total Case Rate (TCR) in the BLS SOII for 2017, 2018, and 2019, of at least 3.5 cases per 100 full-time-equivalent employees, and 2. were included in proposed appendix A to subpart E. (All of the industries in proposed appendix B were also in appendix A). The proposed rule listed the designated industries in proposed appendix B to subpart E. OSHA proposed one exception to the above criteria, for the United States Postal Service (USPS), which is the only employer in NAICS 4911 Postal Services. Under the Postal Employees Safety Enhancement Act (Pub. L. 105-241), OSHA treats USPS as a private sector employer for purposes of occupational safety and health, and USPS establishments with 20 or more employees have been required to electronically submit 300A information to OSHA. However, BLS does not include USPS in the SOII. Using the 2017, 2018, and 2019 data submitted by USPS to the ITA, OSHA was able to calculate a TCR of 7.5 for NAICS 4911. Therefore, OSHA included NAICS 4911 in proposed appendix B to subpart E. Also, in the preamble to the proposed rule, OSHA explained that the agency believed TCR, which represents the number of work-related injuries and illnesses per 100 full-time-employees during a one-year period, was the appropriate rate to use for determining the list of industries in proposed appendix B to subpart E because covered establishments would be required to electronically submit information to OSHA on all of their recordable cases, not just cases that resulted in days away from work, job restriction, or transfer. OSHA explained in the preamble that, in 2020, OSHA received submissions to the ITA of Form 300A data for 2019 from 46,911 establishments that had 100 or more employees and were in one of the industries listed in proposed appendix B to subpart E, accounting for 680,930 total recordable cases and a TCR of 3.6. The designated industries in proposed appendix B to subpart E were as follows: Proposed Appendix B 2017 NAICS code 2017 NAICS title 1111 Oilseed and grain farming. 1112 Vegetable and melon farming. 1113 Fruit and tree nut farming. 1114 Greenhouse, nursery, and floriculture production. 1119 Other crop farming. 1121 Cattle ranching and farming. 1122 Hog and pig farming. 1123 Poultry and egg production. 1129 Other animal production. 1141 Fishing. 1151 Support activities for crop production. 1152 Support activities for animal production. 1153 Support activities for forestry. 2213 Water, sewage and other systems. 2381 Foundation, structure, and building exterior contractors. 3111 Animal food manufacturing. 3113 Sugar and confectionery product manufacturing. 3114 Fruit and vegetable preserving and specialty food manufacturing. 3115 Dairy product manufacturing. 3116 Animal slaughtering and processing. 3117 Seafood product preparation and packaging. 3118 Bakeries and tortilla manufacturing. 3119 Other food manufacturing. 3121 Beverage manufacturing. 3161 Leather and hide tanning and finishing. 3162 Footwear manufacturing. 3211 Sawmills and wood preservation. 3212 Veneer, plywood, and engineered wood product manufacturing. 3219 Other wood product manufacturing. 3261 Plastics product manufacturing. 3262 Rubber product manufacturing. 3271 Clay product and refractory manufacturing. 3272 Glass and glass product manufacturing. 3273 Cement and concrete product manufacturing. 3279 Other nonmetallic mineral product manufacturing. 3312 Steel product manufacturing from purchased steel. 3314 Nonferrous metal production and processing. 3315 Foundries. 3321 Forging and stamping. 3323 Architectural and structural metals manufacturing. 3324 Boiler, tank, and shipping container manufacturing. 3325 Hardware manufacturing. 3326 Spring and wire product manufacturing. 3327 Machine shops; turned product; and screw, nut, and bolt manufacturing. 3328 Coating, engraving, heat treating, and allied activities. 3331 Agriculture, construction, and mining machinery manufacturing. 3335 Metalworking machinery manufacturing. 3361 Motor vehicle manufacturing. 3362 Motor vehicle body and trailer manufacturing. 3363 Motor vehicle parts manufacturing. 3366 Ship and boat building. 3371 Household and institutional furniture and kitchen cabinet manufacturing. 3372 Office furniture manufacturing. 4231 Motor vehicle and motor vehicle parts and supplies merchant wholesalers. 4233 Lumber and other construction materials merchant wholesalers. 4235 Metal and mineral merchant wholesalers. 4244 Grocery and related product merchant wholesalers. 4248 Beer, wine, and distilled alcoholic beverage merchant wholesalers. 4413 Automotive parts, accessories, and tire stores. 4422 Home furnishings stores. 4441 Building material and supplies dealers. 4442 Lawn and garden equipment and supplies stores. 4451 Grocery stores. 4522 Department stores. 4523 General merchandise stores, including warehouse clubs and supercenters. 4533 Used merchandise stores. 4543 Direct selling establishments. 4811 Scheduled air transportation. 4841 General freight trucking. 4842 Specialized freight trucking. 4851 Urban transit systems. 4852 Interurban and rural bus transportation. 4854 School and employee bus transportation. 4859 Other transit and ground passenger transportation. 4871 Scenic and sightseeing transportation, land. 4881 Support activities for air transportation. 4883 Support activities for water transportation. 4911 Postal Service. 4921 Couriers and express delivery services. 4931 Warehousing and storage. 5322 Consumer goods rental. 5621 Waste collection. 5622 Waste treatment and disposal. 6219 Other ambulatory health care services. 6221 General medical and surgical hospitals. 6222 Psychiatric and substance abuse hospitals. 6223 Specialty hospitals. 6231 Nursing care facilities. 6232 Residential intellectual and developmental disability, mental health, and substance abuse facilities. 6233 Continuing care retirement communities and assisted living facilities for the elderly. 6239 Other residential care facilities. 6243 Vocational rehabilitation services. 7111 Performing arts companies. 7112 Spectator sports. 7131 Amusement parks and arcades. 7211 Traveler accommodation. 7212 RV parks and recreational camps. 7223 Special food services. 6239 Other residential care facilities. 6243 Vocational rehabilitation services 7111 Performing arts companies. 7112 Spectator sports. 7131 Amusement parks and arcades. 7211 Traveler accommodation. 7212 RV parks and recreational camps. 7223 Special food services. a. The Size Threshold for Submitting Information From OSHA Forms 300 and 301 Like the proposed rule, § 1904.41(a)(2) of the final rule requires establishments in industries listed in appendix B to subpart E with 100 or more employees to electronically submit certain information from their 300 and 301 forms to OSHA once a year. The size criterion of 100 or more employees is based on the total number of employees at an establishment during the previous calendar year. All individuals who are “employees” under the OSH Act are counted in the total. The count includes all full-time, part-time, temporary, and seasonal employees. For businesses that are sole proprietorships or partnerships, the owners and partners would not be considered employees and would not be counted. Other examples of individuals who are not considered to be employees under the OSH Act are unpaid volunteers and family members of farm employers (see 66 FR 5916, 6038). In the preamble to the proposed rule, OSHA specifically requested comment on whether the threshold of 100 or more employees was the appropriate size criterion for the requirement to electronically submit data from the OSHA Form 300, 301, and 300A. OSHA also asked whether a different size criterion would be more appropriate (see 87 FR 18546). OSHA received a number of comments on the 100-or-more-employee criterion as to the submission of OSHA Forms 300 and 301. Some commenters supported the 100-or-more threshold ( e.g., Docket IDs 0040, 0048, 0049, 0051, 0054, 0064, 0067, 0073, 0080, 0083, 0089, 0092, 0093). For example, the Council of State and Territorial Epidemiologists stated that setting the threshold at 100 employees will allow OSHA to receive more detailed information from the 300/301 forms on the nature and circumstances of injuries and illnesses (Docket ID 0040). Also, the International Union of Painters and Allied Trades/AFL-CIO commented that while they would have preferred to see the threshold for large establishments dropped even further, they recognized that the reduction from 250 to 100 from the 2016 final rule is significant and will assist their industry and others in capturing additional data (Docket ID 0073). The National Nurses Union commented, “An OSHA rule requiring reporting from establishments with 100 or more employees is a superior threshold to the 250-employee threshold. As an example, if the establishment threshold was 250 employees, 299 hospitals in California would have had to comply with electronic reporting requirements in 2021, covering over 378,000 hospital employees. Applying a reporting rule to establishments with 100 or more employees would add an additional 73 hospitals and protect nearly 12,017 additional hospital employees in California alone. This is a significant increase in the data available on workplace hazards” (Docket ID 0064). Additionally, the Communication Workers of America commented, “We support OSHA's proposal to be inclusive of more workplaces by changing the definition of a “large” establishment to those with 100 or more employees, rather than 250 employees. We support large establishments submitting certain information from all three recordkeeping forms. . . .” (Docket ID 0092). Other commenters opposed or questioned the 100-or-more employee threshold ( e.g., Docket IDs 0030, 0050, 0071, 0076, 0087, 0094). Of those commenters who opposed the proposed threshold, most argued that OSHA should set the threshold higher than 100 employees. For example, the Employers E-Recordkeeping Coalition (Coalition) commented that, to the extent employers in industries designated in appendix B are required to submit information from their OSHA Form 300, 301, and 300A, such a requirement should apply to employers with 250 or more employees, not employers with 100 or more employees. The Coalition asserted that, “OSHA does not appear to provide any rationale for lowering the threshold of what it considers to be “larger employers” from those with 250 or more” (Docket ID 0087). Similarly, the National Propane and Gas Association (NPGA) commented that OSHA does not explain its rationale for lowering the size threshold to 100 employees (Docket ID 0050). OSHA agrees with commenters who supported the proposed 100-or-more-employee threshold and disagrees with commenters who stated that the employee threshold should be higher than 100 or more employees ( e.g., 250 or more employees). Increasing the threshold would reduce the number of establishments required to electronically submit information from their 300 and 301 forms, as well as decrease the number of injury and illness case reports collected by the agency. For example, increasing the size threshold from 100 or more employees to 250 or more employees would reduce the number of establishments required to electronically submit 300/301 data by 67 percent ( i.e., from 52,092 establishments to 17,106 establishments). Likewise, raising the threshold from 100 or more employees to 250 or more employees would reduce the number of reported injury and illness cases by 32 percent ( i.e., from 766,257 cases to 523,562 cases). This reduction in the amount of collected information would significantly limit OSHA's ability to identify and target hazardous occupations and workplaces. Also, a reduction in the amount of collected information would adversely impact the benefits (discussed elsewhere) of making this information available to employees, the public, and other interested parties. OSHA is concerned that an increase in the employee threshold, along with the corresponding reduction in publicly available injury and illness information, will hinder efforts to prevent occupational injuries and illnesses in the future. Moreover, the question is more complex than merely whether to “increase” or “decrease” the establishment-size threshold, because the scope of industries required to submit the Form 300 and 301 data has also changed between the 2016 rule and this one. Under the 2016 final rule, all establishments that (1) had 250 or more employees at any time during the previous calendar year, and (2) were required to keep records pursuant to part 1904 were required to submit Forms 300 and 301. In contrast, in this rulemaking, OSHA proposed requiring establishments with 100-or-more employees to submit only if they are classified in one of the high-hazard industries listed in appendix B. This approach—lowering the establishment-size threshold to capture enough workplaces and cases to allow appropriate targeting and analysis while focusing in on particularly hazardous industries—is fully distinguishable from the agency's approach in 2016. OSHA's approach in this rulemaking focuses on higher hazard industries and provides the agency with information on more establishments, as compared to the number of establishments which would have been required to submit their Forms 300 and 301 information under the 2016 final rule. The increase in the number of establishments required to submit information, relative to the 2016 final rule, will allow OSHA to identify more places where intervention will be beneficial, including targeting its compliance assistance efforts. Other interested parties recommended that OSHA conduct additional analysis to determine which establishments should be required to electronically submit Form 300/301 data to OSHA. For example, the American Industrial Hygiene Association (AIHA) commented, “There should be an analysis of the impact of any company size selected to report electronically. There are at least two considerations here: (1) The number of responses that will be received if the threshold is lowered to 100 (there is also a question of whether OSHA can manage an associated increase in reports); and (2) Most companies in the U.S. are small businesses and new regulations such as this can have an indirect impact on them. Will companies of this size have the capability and IT expertise to participate in electronic reporting? OSHA should conduct a thorough analysis before imposing new reporting requirements on small businesses.” (Docket ID 0030). The Sheet Metal & Air Conditioning Contractors' National Association submitted similar comments (Docket ID 0046). OSHA agrees with AIHA that these factors are important in determining the appropriate threshold for data submission and considered them in setting the threshold. As to the first consideration noted by AIHA, the number of responses, as noted above, OSHA estimates that 52,092 establishments will be required to electronically submit Form 300/301 data each year pursuant to § 1904.41(a)(2) of the final rule. OSHA further estimates that those establishments would annually submit 766,257 injury and illness cases. In choosing the proposed threshold, OSHA sought to balance the utility of the information collection for enforcement, outreach, and research, on the one hand, and the burden on employers to provide the information to OSHA, on the other hand. And OSHA expects that the 100-employee threshold will be an easy threshold for employers to understand and keep track of. Further, as discussed in Section III.B. of this Summary and Explanation, OSHA has determined that it is capable of managing, analyzing, and utilizing the data it will receive pursuant to this requirement. As to AIHA's second factor, whether establishments with 100 or more but fewer than 250 employees have the capability and IT expertise to participate in electronic reporting, OSHA has also determined that such establishments are capable of submitting these reports to OSHA. Significantly, because the industries that appear in appendix B are a subset of those in appendix A and the previous version of § 1904.41(a)(2) required all establishments with 20-249 employees which are classified in an industry listed in appendix A to submit information from their Form 300A annually to OSHA, all of the establishments which would be required to submit information from their Forms 300 and 301 to OSHA under the proposal were already required to submit information from their Forms 300A. In other words, the establishments covered under the proposal (and this final rule) already have experience submitting (and thus the ability to submit) such data to OSHA electronically. For more details on this issue, see Section IV, Final Economic Analysis. OSHA also received comments questioning its preliminary decision to use establishment size as a threshold criterion. For example, the National Safety Council (NSC) supported a risk-based approach, commenting that larger operations are not inherently less safe and that OSHA should move to a risk- based approach to protect workers. It argued, “OSHA should evaluate factors like the degree of the hazard, the magnitude of exposure (number of workers exposed and duration of exposure), and the relative risk at the site (likelihood of an incident based on current hazards and the level of controls being applied to those hazards and past experience). These data points should govern reporting requirements and guide OSHA inspections, consulting and compliance resources.” (Docket ID 0041). OSHA agrees that using a risk-based approach to collecting data can be valuable. Indeed, as discussed in Section III.B.14.c in this Summary and Explanation, OSHA anticipates this to be one of the benefits of the data collection for the agency. That is, the data collection will provide OSHA with establishment-specific, case-specific information the agency can use to evaluate risk factors and guide OSHA activities based on risk factors. However, in order to obtain this information, OSHA must first set the criteria for collecting the information, through this final rule. Risk is one of the reasons the agency proposed using a Forms 300 and 301 data collection criteria based on industry hazard level as well as establishment size, i.e., it is reasonable to assume that establishments in industries with higher injury/illness rates are higher-hazard industries with higher risks. As discussed elsewhere in this preamble, the list of higher-hazard industries in final appendix B to subpart E is based on several criteria, including the analysis of average injury and illness rates over several years. OSHA believes this approach represents a practical way of evaluating risks and hazards in specific industries. OSHA also believes it would be difficult to calculate an appropriate employee threshold based on the degree of hazard or the magnitude of exposure at individual establishments, especially when such case-specific data are not now available to the agency. Moreover, OSHA expects that including a numerical threshold of 100 or more employees is easier for employers to understand and provides certainty for the regulated community. The inclusion of a numerical threshold with or without an additional industry criterion is a familiar part of OSHA's recordkeeping regulations (see, e.g., 29 CFR 1904.1(a)(1); previous 29 CFR 1904.41(a)(1)-(2)). Further, OSHA believes that the 100-employee threshold balances the burden on employers with the benefits to worker safety and health. Other commenters questioned OSHA's proposed 100-employee threshold because the agency did not choose that threshold in the 2016 rulemaking. For example, the Coalition pointed out that “OSHA considered a lower threshold of 100 or more employees, and expressly denied that approach in the 2016 rulemaking” (Docket ID 0087). In response to this comment, OSHA notes that the alternative (Alternative E) in the 2013 NPRM (the NPRM which lead to the 2016 final rule) to which the Coalition refers differs from the requirement OSHA proposed in this rulemaking. Specifically, with regard to Forms 300 and 301, Alternative E would have required all establishments which were required to keep records and had 100 or more employees at any time during the previous calendar year to submit Form 300 and 301 data to OSHA annually (see 78 FR 67264, 67281). However, in this rulemaking, OSHA proposed for only a subset of establishments with 100 or more employees ( i.e., those whose industries appear on appendix B) to submit the data. OSHA estimated that it would receive 1,170,000 injury and illness cases with incident report (OSHA Form 301) and Log (OSHA Form 300) data under Alternative E (81 FR 29636). OSHA further estimated that 120,000 establishments would have been required to submit data under the alternative (81 FR 29636). Ultimately, in 2016, OSHA agreed with commenters who stated that reducing the size criterion to 100 would increase the burden on employers with diminishing benefit. OSHA's 2016 decision to reject Alternative E was based on the employer burden and benefits under that alternative. As discussed above, under this rule, OSHA estimates that only 52,092 establishments will be required to electronically submit Form 300/301 data each year and those establishments would annually submit only 766,257 injury and illness cases. Thus, an estimated 67,908 fewer establishments will be required to submit data under this rule, as compared to the estimate of those that would have been required to submit under Alternative E in the 2016 final rule, and approximately 403,000 fewer cases are estimated to be submitted than were estimated to have been submitted under that alternative. The number of cases estimated to be submitted under this final rule is similar to that which was estimated to have been required to be submitted under the 2016 final rule (720,000 in 2016). Consequently, OSHA finds that its rejection of Alternative E in the 2016 rulemaking has no bearing on its decision to use a 100-employee threshold in this rulemaking. In fact, the agency's finding that it could handle data from 720,000 cases in 2016 actually supports its finding that it can handle a similar number of records in this rulemaking. The Phylmar Regulatory Roundtable (PRR) objected to OSHA's proposed 100-or-more-employee threshold for a different reason than the above commenters. Specifically, it maintained that the requirement for establishments with 100 or more employees in certain industries could result in inaccurate or misleading information. In support of this point, it stated that “an establishment with few employees may have a high case rate purely based on numbers which is not reflective of workplace hazards or employer commitment. High injury and illness rates are not an automatic indication that the company or establishment is operating an unsafe environment” (Docket ID 0094). OSHA disagrees with PRR's assertion about the 100-or-more employee threshold resulting in misleading information. While a small number of injuries or illnesses could have a disproportionate effect on incidence rates in an establishment with a small number of employees, this is unlikely in larger establishments with 100 or more employees. Incidence rate of injuries and illnesses are computed from the following formula: Incidence rate per 100 full-time employees = (Number of injuries and illnesses × 200,000)/Employee hours worked. The 200,000 figure in the formula represents the number of hours 100 employees working 40 hours per week, 50 weeks per year would work, and provides the standard base for calculating incidence rate for an entire year. Mathematically, the effect of a small change in the numerator (number of injuries and illnesses × 200,000) on the incidence rate becomes smaller as the denominator (employee hours worked) becomes larger, and the more employees there are, the larger the denominator will tend to be. Two recordable injuries or illnesses instead of one, at an establishment with 20 full-time employees, would increase the TCR from 5.0 to 10.0; in contrast, at an establishment with 100 full-time employees, the TCR would only increase from 1.0 to 2.0. As discussed above, the TCR threshold for industry inclusion in Appendix B is 3.5; an establishment with 100 full-time employees would have to have at least 4 recordable injuries in a year to exceed this threshold. In addition, as discussed elsewhere, OSHA plans to publish narrative information from the Form 300 and 301 (after identifying and removing information that could reasonably be expected to identify individuals directly), which will enable the users of the data to determine the relevance of the data. In fact, OSHA believes that the inclusion of more information about the specific cases (rather than the summary information from Forms 300A) will mitigate against potential misunderstandings, because the public can use that information to determine the circumstances that led to the injury or illness ( e.g., through showing that a particular injury or illness occurred for a reason other than a hazard in the work environment). This is further discussed below in Section III.B.4 of this Summary and Explanation, which also explains additional steps OSHA plans to take to provide information to the public to aid their understanding of the data. OSHA also received a comment from NPGA opposing the proposed 100-or-more employee threshold because it is not included in any other portion of OSHA's recordkeeping regulations (Docket ID 0050). NPGA's statement is accurate: OSHA's proposal in this rulemaking is the first time OSHA has specifically tied a part 1904 recordkeeping requirement to a 100-or-more-employee threshold. However, OSHA does not think the presence of a new threshold is problematic. As stated above, a 100-employee threshold is easy for establishments to understand and balances OSHA's need for the data with the burden on establishments. Moreover, OSHA expects that establishments are familiar with this threshold from their experience with other Federal standards. For example, private sector employers with 100 or more employees are required to file an EEO-1 Component 1 Report with the Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP), U.S. Department of Labor, every year (see 42 U.S.C. 2000e-8(c); 29 CFR 1602.7-.14; 41 CFR 60-1.7(a)). Other commenters maintained that the 100-employee threshold was not inclusive enough. For example, the AFL-CIO commented that if OSHA did not adopt its recommendation to require all establishments with 100 or more employees to submit data from all their recordkeeping forms (rather than establishments with 100 or more employees which are also classified in an industry listed in appendix B) (comment and OSHA's response discussed below), then OSHA should adopt the provisions contained in the 2016 final rule ( i.e., require all establishments with 250 or more employees to submit data from Forms 300A, 300, and 301). It argued that “[a]t a minimum” OSHA should require establishments with 250 or more employees to submit data from the Forms 300A and 300 (Docket ID 0061). The United Food and Commercial Workers International Union submitted a similar comment (Docket ID 0066). OSHA disagrees with commenters who suggested that OSHA should adopt a threshold below 100 or more employees or eliminate the threshold completely. OSHA acknowledges commenters who stated that a lower threshold would result in an increase in the amount of injury and illness data collected by the agency. However, the agency notes that any reduction in the employee size threshold would increase the number of establishments required to electronically submit Form 300 and 301 data, and this would result in an increased burden to smaller employers. Again, the agency chose the 100-employee threshold by balancing the utility of the information collection for enforcement, outreach, and research, on the one hand, and the burden on employers to provide the information to OSHA, on the other hand. The 100-employee threshold will provide enough case-specific information, about enough establishments, for wide-spread targeted outreach and enforcement while minimizing the burden on employers, especially smaller employers, as required by Section 8(d) of the OSH Act. In addition, OSHA notes that the 100-or-more-employee threshold is appropriate since larger establishments typically have more resources to support electronic submission of case-specific injury and illness information to OSHA. OSHA also finds that the 100-or-employee threshold is appropriate because there is a lesser risk of employee reidentification from information published regarding larger establishments. (For more information on this issue, see the discussion of indirect identification in Section III.B of this Summary and Explanation.) In summary, after considering the entire record on the issue of the size threshold for submitting OSHA Form 300 and 301 data, OSHA agrees with commenters who supported the 100-or-more-employee threshold for determining which establishments must electronically submit information from their 300 and 301 forms. The 100-or-more-employee threshold will allow OSHA to strike an appropriate balance between the total number of establishments required to submit case-specific data to OSHA and the total number of injury and illness cases collected, on the one hand, with burden on employers (especially smaller employers) on the other. As discussed above, as well as in Section IV, Final Economic Analysis, OSHA believes that establishments with 100 or more employees have the necessary personnel and IT resources to comply with the electronic submission requirement in final § 1904.41(a)(2). By setting the threshold at 100 or more employees and limiting the covered industries to the higher hazard industries listed in final appendix B to subpart E, the agency is focusing its data collection efforts in a more targeted manner. This approach is consistent with OSHA's stated intention in the preamble to the proposed rule to balance the utility of the information collection for enforcement, outreach, and research, on the one hand, and the burden on employers to provide the information to OSHA, on the other hand. Accordingly, like the proposed rule, final § 1904.41(a)(2) requires establishments with 100 or more employees that are in the designated industries listed in appendix B to subpart E to electronically submit data from their 300 and 301 forms to OSHA once a year. b. The Criteria for Determining the Industries in Appendix B to Subpart E As stated above, OSHA proposed to require establishments with 100 or more employees at any time during the previous calendar year to annually submit their Form 300 and 301 if they are in an industry listed in proposed appendix B to subpart E. The criteria for including the designated industries in proposed appendix B to subpart E was based on a three-year average rate of Total Case Rate (TCR) in the BLS SOII for 2017, 2018, and 2019, of at least 3.5 cases per 100 full-time-employees. In the preamble to the proposed rule, OSHA requested comment on whether TCR is the appropriate method for determining the list of industries in proposed appendix B to subpart E. In addition, OSHA specifically asked, “Is Total Case Rate (TCR) the most appropriate incidence rate to use for proposed appendix B to subpart E, or would the Days Away Restr [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2023-15091. Public record. Not legal advice.