After carefully considering all of these comments, OSHA has decided
to use a three-year average of BLS data from 2011, 2012, and 2013 to
determine coverage for Sec.  1904.41(a)(2) of the final rule. This
three-year range represents the most current BLS data available at the
time of this final rule. OSHA agrees with the International Brotherhood
of Teamsters that using the most current BLS data available at the time
of the final rule, rather than outdated data, is the most effective way
to identify emerging workplace hazards, as well as the most effective
way to identify the list of high hazard industries for inclusion in
appendix A to subpart E. A three-year average will reduce the effects
of natural year-to-year variation in industry injury/illness rates, and
it is consistent with OSHA's current approach in determining the
partial exemption of industries under existing Sec.  1904.2. The
alternative would have been to use a single year of BLS data from 2009
for a final rule that will go into effect in 2017.
    OSHA also agrees with commenters who stated that the Agency
provided sufficient notice and opportunity for comment in the NPRM by
explicitly asking whether the Agency should use the most current data
available when determining coverage for the final rule. The combination
of OSHA's request for comment on the approach that it ultimately
adopted in the final rule, and the comments and testimony received in
response to the proposed rule, provided the regulated community with
adequate notice regarding the outcome of the rulemaking. See, e.g.,
Nat'l Mining Ass'n v. Mine Safety & Health Admin., 512 F.3d 696, 699
(D.C. Cir. 2008); Miami-Dade County v. U.S. E.P.A., 529 F.3d 1049, 1059
(11th Cir. 2008); United Steelworkers of America, AFL-CIO-CLC v.
Marshall, 647 F.2d 1189, 1221 (D.C. Cir. 1980) (``a final rule may
properly differ from a proposed rule and indeed must so differ when the
record evidence warrants the change . . . . Where the change between
proposed and final rule is important, the question for the court is
whether the final rule is a `logical outgrowth' of the rulemaking
proceeding''). The list of designated industries in Appendix A to
Subpart E of the final rule is a logical outgrowth of the proposal, and
the number of comments provides a clear indication that the affected
members of the public are not only familiar with the issue of using the
most current data, but also viewed the inclusion of such data as a
potential outcome of this rulemaking. As a result, unlike the proposed
rule, the final rule will use a three-year average (2011, 2012, 2013)
DART rate of 2.0 or greater for determining the list of industries
included in appendix A to subpart E.
    Also in the preamble to the proposed rule, OSHA asked whether the
list of designated industries in appendix A to subpart E should remain
the same each year, or whether the list should be adjusted each year to
reflect the most current BLS injury and illness data. OSHA also asked
how OSHA could best inform affected establishments about the
adjustments, if the list were adjusted.
    One commenter supported adjusting the list of designated industries
each year to reflect the most current BLS injury and illness data (Ex.
1211). Other commenters supported adjusting the list in other ways. For
example, the International Union (UAW) commented that ``annual updating
is too frequent and would leave employers confused as to whether or not
they need to report. Updating every three years would be more
appropriate'' (Ex. 1384). The International Brotherhood of Teamsters
and the Service Employees International Union (SEIU) provided similar
comments (Exs. 1381, 1387). The American Federation of Teachers (AFT)
commented that ``[t]he AFT recommends that new establishments that meet
the requirement of a DART rate of 2.0 be added every year but that the
original list of high hazard establishments be maintained regardless of
changes to their DART that puts them below the threshold. Those
original establishments should continue reporting for a minimum of ten
years in order to ascertain if their DART rates are trending lower over
the long term'' (Ex. 1358).
    On the other hand, the California Department of Industrial
Relations (DIR), Office of the Director supported ``increasing the
stability of the system, namely, [by] not changing industries required
to report'' (Ex. 1395).
    Finally, Thoron Bennett supported requiring establishments with 20
or more employees in all industries to report, rather than limiting the
requirement to establishments with 20 or more employees on a list of
designated high-hazard industries. He further commented that OSHA
should ``[f]orget the tiered reporting based on employment numbers or
designated industries. Simply require electronic data submission for
all employers who have to fill out the OSHA 300/300A/301 logs'' (Ex.
0035).
    OSHA agrees with the commenters who stated that the list of
designated industries in appendix A to subpart E should not be updated
each year. OSHA believes that moving industries in and out of appendix
A to subpart E each year would be confusing. OSHA also believes that
keeping the same industries in appendix A to subpart E each year will
increase the stability of the system and reduce uncertainty for
employers. Accordingly, OSHA will not, as part of this rulemaking,
include a requirement to annually or periodically adjust the list of
designated industries to reflect more recent BLS injury and illness
data. Any such revision to the list of industries in appendix A to
subpart E in the future would require additional notice and comment
rulemaking.
    The designated industries, which will be published in appendix A to
subpart E of the final rule, will be as follows:

------------------------------------------------------------------------
          NAICS                               Industry
------------------------------------------------------------------------
11.......................  Agriculture, forestry, fishing and hunting.
22.......................  Utilities.
23.......................  Construction.
31-33....................  Manufacturing.
42.......................  Wholesale trade.
4413.....................  Automotive parts, accessories, and tire
                            stores.
4421.....................  Furniture stores.
4422.....................  Home furnishings stores.
4441.....................  Building material and supplies dealers.

4442.....................  Lawn and garden equipment and supplies
                            stores.
4451.....................  Grocery stores.
4452.....................  Specialty food stores.
4521.....................  Department stores.
4529.....................  Other general merchandise stores.
4533.....................  Used merchandise stores.
4542.....................  Vending machine operators.
4543.....................  Direct selling establishments.
4811.....................  Scheduled air transportation.
4841.....................  General freight trucking.
4842.....................  Specialized freight trucking.
4851.....................  Urban transit systems.
4852.....................  Interurban and rural bus transportation.
4853.....................  Taxi and limousine service.
4854.....................  School and employee bus transportation.
4855.....................  Charter bus industry.
4859.....................  Other transit and ground passenger
                            transportation.
4871.....................  Scenic and sightseeing transportation, land.
4881.....................  Support activities for air transportation.
4882.....................  Support activities for rail transportation.
4883.....................  Support activities for water transportation.
4884.....................  Support activities for road transportation.
4889.....................  Other support activities for transportation.
4911.....................  Postal service.
4921.....................  Couriers and express delivery services.
4922.....................  Local messengers and local delivery.
4931.....................  Warehousing and storage.
5152.....................  Cable and other subscription programming.
5311.....................  Lessors of real estate.
5321.....................  Automotive equipment rental and leasing.
5322.....................  Consumer goods rental.
5323.....................  General rental centers.
5617.....................  Services to buildings and dwellings.
5621.....................  Waste collection.
5622.....................  Waste treatment and disposal.
5629.....................  Remediation and other waste management
                            services.
6219.....................  Other ambulatory health care services.
6221.....................  General medical and surgical hospitals.
6222.....................  Psychiatric and substance abuse hospitals.
6223.....................  Specialty (except psychiatric and substance
                            abuse) hospitals.
6231.....................  Nursing care facilities.
6232.....................  Residential mental retardation, mental health
                            and substance abuse facilities.
6233.....................  Community care facilities for the elderly.
6239.....................  Other residential care facilities.
6242.....................  Community food and housing, and emergency and
                            other relief services.
6243.....................  Vocational rehabilitation services.
7111.....................  Performing arts companies.
7112.....................  Spectator sports.
7121.....................  Museums, historical sites, and similar
                            institutions.
7131.....................  Amusement parks and arcades.
7132.....................  Gambling industries.
7211.....................  Traveler accommodation.
7212.....................  RV (recreational vehicle) parks and
                            recreational camps.
7213.....................  Rooming and boarding houses.
7223.....................  Special food services.
8113.....................  Commercial and industrial machinery and
                            equipment (except automotive and electronic)
                            repair and maintenance.
8123.....................  Dry-cleaning and laundry services.
------------------------------------------------------------------------

    OSHA notes that 15 industries in appendix A to subpart E in the
final rule were not included in proposed appendix A to subpart E. These
industries are Specialty Food Stores (NAICS 4452), Vending Machine
Operators (NAICS 4542), Urban Transit Systems (NAICS 4851), Interurban
and Rural Bus Transportation (NAICS 4852), Taxi and Limousine Service
(NAICS 4853), School and Employee Bus Transportation (NAICS 4854),
Other Transit and Ground Passenger Transportation (NAICS 4859), Postal
Service (NAICS 4911), Other Ambulatory Health Care Services (NAICS
6219), Community Food and Housing, and Emergency and Other Relief
Services (NAICS 6242), Performing Arts Companies (NAICS 7111), Museums,
Historical Sites, and Similar Institutions (NAICS 7121), RV
(Recreational Vehicle) Parks and Recreational Camps (NAICS 7212),
Rooming and Boarding Houses (NAICS 7213), and Special Food Services
(NAICS 7223). Conversely, three industries that were included in
proposed appendix A to subpart E are not included in the final Appendix
A to Subpart E. These industries are Inland Water Transportation (NAICS
4832), Scenic and Sightseeing Transportation, Water (NAICS 4872), and
Home Health Care Services (NAICS 6216).

    The following table summarizes the changes in affected industries
by using the three-year average of BLS data (2011, 2012, 2013) compared
to using 2009 BLS data and provides the expected number of affected
establishments in each industry based on the most recent 2012 County
Business Patterns data:

----------------------------------------------------------------------------------------------------------------
                                                                                Expected No. of affected
             NAICS                                   Industry                              establishments
----------------------------------------------------------------------------------------------------------------
 In appendix A to subpart E of the final rule (using three-year average of 2011, 20012, 2013 BLS data), but NOT
                      in appendix A to subpart E of the proposed rule (using 2009 BLS data)
----------------------------------------------------------------------------------------------------------------
4452..........................  Specialty food stores............................  1221
4542..........................  Vending machine operators........................  493
4851..........................  Urban transit systems............................  374
4852..........................  Interurban and rural bus transportation..........  184
4853..........................  Taxi and limousine service.......................  740
4854..........................  School and employee bus transportation...........  2025
4859..........................  Other transit and ground passenger transportation  918
4911..........................  Postal service...................................  *
6219..........................  Other ambulatory health care services............  3282
6242..........................  Community food and housing, and emergency and      2481
                                 other relief services.
7111..........................  Performing arts companies........................  1079
7121..........................  Museums, historical sites, and similar             1161
                                 institutions.
7212..........................  RV (recreational vehicle) parks and recreational   392
                                 camps.
7213..........................  Rooming and boarding houses......................  67
7223..........................  Special food services............................  7812
----------------------------------------------------------------------------------------------------------------
In Appendix A to Subpart E of the proposed rule (using 2009 BLS data), but NOT in Appendix A to Subpart E of the
                       final rule (using three-year average of 2011, 2012, 2013 BLS data)
----------------------------------------------------------------------------------------------------------------
4832..........................  Inland water transportation......................  123
4872..........................  Scenic and sightseeing transportation, water.....  131
6216..........................  Home health care services........................  12801
----------------------------------------------------------------------------------------------------------------
* Insufficient data.

Design of the Electronic Submission System
    In the preamble to the proposed rule, OSHA asked, ``How should the
electronic data submission system be designed? How can OSHA create a
system that is easy to use and compatible with other electronic systems
that track and report establishment-specific injury and illness data?''
[78 FR 67271].
    There were many comments with suggestions about the overall design
of OSHA's electronic submission system. Several commenters commented
that OSHA's electronic data submission system should be compatible with
existing systems. The United Steelworkers (USW) commented that ``[i]t
is important that OSHA ensure that electronic systems put in place for
this initiative are compatible with existing systems in common use. We
also encourage OSHA to update their system as necessary to keep up with
advances in technology and facilitate the transfer of employer data''
(Ex. 1424). Rachel Armont; the California Department of Industrial
Relations (DIR), Office of the Director; and Shawn Lewis provided
similar comments (Exs. 0198, 1320, 1395).
    The International Union (UAW) commented that ``such a system should
allow for employers [to] upload existing files'' (Ex. 1384). Harvey
Staple commented that ``the states and OSHA [could] work together to
develop a system whereby one entry into an electronic log could be used
for multiple information reporting (i.e., state and federal). It would
further enhance all parties involved if the system could be tied into
the workers compensation system to maximize the data already captured
without adding another paperwork burden'' (Ex. 0154).
    In response, OSHA notes that, because there are many commercial
software products on the market for recording and managing information
on workplace injuries/illnesses to support compliance with OSHA
recordkeeping requirements, OSHA plans to coordinate with trade
associations and health and safety consultants to identify the products
in widest use. OSHA would then review available information about these
products to help inform relevant considerations during development of
the OSHA system for ensuring ease-of-use and compatibility with
commercial products in common use.
    When OSHA develops the data collection system, the Agency will
consider commercial systems used by establishments to maintain their
injury/illness records. This means that the Agency's system may provide
a mechanism and protocol for employers to transmit their data
electronically instead of completing online forms. For example, the
system could allow employers to securely transfer encrypted data over
the Web in an acceptable data file format (e.g., MS Excel, XML, or csv)
for validation and import into the electronic reporting system. OSHA
will provide users with easy-to-follow guidance that addresses required
data elements (a data dictionary), format and other technical
considerations, and steps involved in validation, transfer, and
confirmation. Routines will be programmed to automate as much of the
process as possible, with prompts for manual review as needed.
    Quick Incidents suggested the use of an Application Programming
Interface (API), commenting that ``Application Programming Interfaces
(APIs) have gained widespread usage in the corporate world . . . Having
this type of machine to machine communication ensures that data is
transferred securely, accurately and quickly without any human
intervention . . . An API would allow companies to connect their
incident recording software directly to the OSHA reporting system.
Incident reports would be transmitted seamlessly without any
redundancy. For companies with an existing incident recording system
this proposed API would allow

OSHA submission without any additional burden'' (Ex. 1220).
    OSHA will explore this suggestion during development of the data
collection system, in addition to the file transfer concept described
above.
    The Risk and Insurance Management Society suggested another
approach, commenting that ``[m]any employers have in place systems to
report their injury and illness data through the Electronic Data
Interchange . . . If OSHA decides to move forward with the proposed
rule, then an effort should be made to accept data submitted through
the current Electronic Data Interchange system'' (Ex. 1222).
    The International Association of Industrial Accident Boards and
Commissions (IAIABC) suggested that OSHA should ``consider the benefits
of using the IAIABC's established First and Subsequent Reports of
Injury Standard (IAIABC EDI Claims Standard). Implementation of an
existing electronic standard would be much faster and easier than
developing a brand new electronic reporting protocol . . . All of the
IAIABC's EDI standards have been developed by workers' compensation
business and technical experts and are widely used and actively
supported. To date, 40 jurisdictions have implemented at least one of
the IAIABC's EDI standards'' (Ex. 1104).
    In response, OSHA notes that IAIABC's EDI claim standards are used
by many states for standardizing the submission of workers'
compensation claims information. When OSHA develops the data collection
system, the Agency will assess whether some variation of the standard
or its basic logic might be appropriate for ensuring consistency in the
submission and processing of data to OSHA.
    However, the Dow Chemical Company commented that ``[i]t is probably
literally impossible for OSHA to design its web portal to be compatible
with every electronic system that some employer may be using. Dow is
not aware of any web portal that is compatible with SAP-based systems,
Excel spreadsheets, Adobe Acrobat, Lotus Notes, Oracle, and the
multitude of other options for keeping electronic records'' (Ex. 1189).
    Several commenters also expressed specific concerns about the
electronic data submission system's compatibility with 301-equivalent
forms. The U.S. Poultry & Egg Association commented that ``OSHA does
not appear to realize that many employers do not actually use the OSHA
301 Form. Instead, they use an equivalent form, often for workers
compensation purposes. Presumably, OSHA would require employers to
translate the information into the `301 Form' on the internet. This may
not be as straightforward as OSHA makes it seem and certainly it may be
more costly than OSHA anticipates. It also not only increases the risks
of errors occurring in the translation but eliminates the usefulness of
equivalent forms'' (Ex. 1109). The National Association of
Manufacturers and Littler Mendelson, P. C. provided similar comments
(Exs. 1279, 1385).
    OSHA's response is that, in developing the data collection system,
OSHA may consider aspects of the IAIABC EDI standards that might inform
and streamline data submission to the OSHA system, rather than
designing the system to accept the workers' compensation forms or
equivalent forms themselves. That is, because workers' compensation
forms are for a specific purpose and can vary by state, the workers'
compensation form data elements may not fit OSHA's reporting
requirements.
    The Association of Occupational Health Professionals in Healthcare
(AOHP) commented about the importance of compatibility between existing
systems and OSHA's electronic data submission system because ``[t]he
need to double enter the data is a significant concern. Double data
entry was a significant concern when NIOSH was proposing the
Occupational Safety Health Network (OHSN). NIOSH considered this
concern and was able to create an interface to eliminate double data
entry into this national database. Double data entry is costly in terms
of time and the use of scarce human resources to manage these record
keeping requirements (Ex. 0246). The Risk and Insurance Management
Society provided a similar comment (Ex. 1222).
    Several other commenters provided comments about making the
electronic data submission system user-friendly. The Association of
Occupational Health Professionals in Healthcare (AOHP) commented that
``[c]onsideration should be given to a pilot to test the functioning of
the Web site and the ease with which the data can be entered and
submitted'' (Ex. 0246). The California Department of Industrial
Relations (DIR), Office of the Director commented that ``[c]urrent OSHA
guidelines for its forms are simple, easy-to-use, and are low-literacy
friendly . . . Any electronic reporting system must balance the needs
for uniform, easy to process data with the simplicity that paper
records provided'' (Ex. 1395).
    The Phylmar Regulatory Roundtable (PRR) commented that ``[t]he
Proposed Rule calls for two methods of submitting data--use of online
forms or batch submission of Excel or XML files. PRR supports this
approach, as it appears to accommodate both establishment size (smaller
establishments would likely use the online form) and the diverse
software programs companies currently used to electronically manage
injury and illness data'' (Ex. 1210). The International Brotherhood of
Teamsters provided a similar comment (Ex. 1381).
    The Dow Chemical Company suggested that it is ``vitally important
for employers to receive immediate feedback as to whether their data
entry was successful or unsuccessful. OSHA's web portal should respond
to each and every attempt at data entry, by providing a confirmation of
receipt or a confirmation of failure. The confirmation notice should
describe what was received (or not received) with sufficient detail to
be useful in resolving disputes in an enforcement context'' (Ex. 1189).
    The Allied Universal Corporation commented about potential
technical issues, suggesting that ``OSHA must also consider the heavy
traffic flow as the submission deadline approaches, and ensure the Web
site to submit electronically does not crash or cause further reporting
problems'' (Ex. 1192). Thoron Bennett noted another potential issue,
commenting that ``many companies have security measures that cause
electronic reporting problems, particularly defense and research
companies that safeguard their electronic information'' (Ex. 0035).
    Several commenters suggested that OSHA should consult on this issue
with other governmental agencies that collect establishment-specific
injury and illness data. Senator Tom Harkin commented that ``OSHA's
sister agency the Mine Safety and Health Administration (MSHA), along
with other agencies like the Federal Railroad Administration (FRA) and
Federal Aviation Administration (FAA), currently publish establishment-
specific accident and injury and illness data. We believe that OSHA
should consult with these agencies to learn about design problems and
potential best practices to adopt before creating its database'' (Ex.
1371). The International Brotherhood of Teamsters provided a similar
comment (Ex. 1381).
    In response, OSHA intends to use submitter registration, which
would enable OSHA to issue a unique ID for reporting establishments.
With user self-registration via an online submission form, the employer
would have to complete an online registration form (available from a
link on the electronic reporting system's home/login page) to obtain
login information before gaining

access to the new electronic reporting system for data submission.
After the user submitted the online registration form, the user would
receive a system-generated email confirming registration and providing
login information. Registration for submission would be needed because,
unlike under the ODI, employers required to submit data each year under
this final rule will not receive notification. Alternate account
registration and authentication provisions may be provided for
electronic transmission of data. In contrast, special OSHA data
collections under Sec.  1904.41(a)(3) of this final rule will involve
OSHA notifications to affected employers.
Updates for the Electronic Data Submission System
    In the preamble to the proposed rule, OSHA asked, ``Should the
electronic data submission system be designed to include updates?
Section 1904.33(b) requires employers to update OSHA Logs to include
newly-discovered recordable injuries or illnesses and to show any
changes that have occurred in the classification of previously-recorded
injuries and illnesses.'' [78 FR 67271].
    There were many comments about the benefits of allowing updates in
the electronic data submission system. Several commenters noted that
the data would be inaccurate without updates, because more information
about cases often becomes available over time, after investigation
(Exs. 1205, 1217, 1219, 1275, 1326, 1327, 1331, 1355, 1358, 1360, 1378,
1389, 1396, 1399, 1408). For example, the Pacific Maritime Association
commented that ``[i]t is common for an employer to record an employee's
complaint at the time it is reported, prior to performing an evaluation
of whether an injury has actually occurred or whether it is indeed
workplace related. However, following an examination by a physician or
consideration of the recordkeeping factors in Section 1904, recorded
injuries regularly have to be removed or edited. The information
submitted to OSHA and included on its database will be no different.
Additionally, it is particularly troublesome that OSHA will base its
enforcement and targeting efforts on this information, while at the
same time conceding that there may be no way to update or amend
information to ensure that it is accurate. Accordingly, if OSHA
proceeds with this rule, PMA believes that it is imperative that this
system be designed to allow for amendments'' (Ex. 1326).
    The U.S. Chamber of Commerce further commented that ``OSHA
acknowledges in its Notice for this Proposed Rule that the present
recordkeeping rules require that employers update their OSHA Form 300
for five years. See 78 FR at 67271. Those updates will affect the forms
described above which in turn would affect the accuracy of database
entries. Thus, it is not a question of whether employers will need to
update this information, but rather a question of how they will do so''
(Ex. 1396).
    Several other commenters commented that companies will look bad
unfairly if an injury or illness is later found to be non-work-related
and updates are not allowed. The National Marine Manufacturers
Association commented that ``it seems clear that companies will be held
accountable for recordable incidents where either the actual cause was
not under the employer's control or part of an employee's work or it is
later discovered the injury was due to other causes. Based on the
proposal, once these incidents are recorded and submitted to OSHA, NMMA
understands that the reports cannot be amended. Both OSHA and the
public would therefore have an inaccurate depiction of a company's
safety record'' (Ex. 1217). The National Electrical Contractors
Association (NECA), Innovative Holdings of Iowa, Inc., and the
Association of Union Constructors provided similar comments (Exs. 1125,
1275, 1389).
    Other commenters commented that not allowing updates could lead to
underreporting of marginally work-related cases. United Parcel Service,
Inc. (UPS) commented that ``[without updates] an employer would not
want to err on the side of placing questionable entries onto the log.
There would be no mechanism for striking through this data once it is
publicly posted on OSHA's Web site. Rather than the rule promoting more
revelations of injury and illness data, it would likely result in less
data in circumstances where questions remained regarding recording of a
case'' (Ex. 1391). The International Warehouse Logistics Association
(IWLA) provided a similar comment (Ex. 1360).
    There were also commenters who opposed allowing updates. Several
commenters believed that updates would be burdensome to employers. The
Phylmar Regulatory Roundtable (PRR) commented that ``updating quarterly
submissions would be a major burden to employers. Consider the time
involved for a record keeper at one establishment to communicate
changes in status regarding particular injury cases on a regular basis
to someone in an enterprise-level role who must then either access the
online log or records to modify them or modify the enterprise database
and resubmit it to the Web site'' (Ex. 1110). The AFL-CIO, the
International Warehouse Logistics Association (IWLA), the International
Brotherhood of Teamsters, and the International Union (UAW) all
provided similar comments (Exs. 1350, 1360, 1381, 1384). The Puget
Sound Shipbuilders Association provided a comment that updates would be
especially burdensome for certain establishments, such as those located
on sea vessels (Ex. 1379).
    The Dow Chemical Company commented that ``[t]he system should not
be designed to accept updates. This is because allowing updates is only
half a step from requiring updates, and requiring updates would greatly
increase the burden of the rule . . . . if the Agency ever wishes to
see whether an employer has made any updates, OSHA already has the
authority to pose that question to the employer--without imposing a
universal obligation'' (Ex. 1189).
    The U.S. Chamber of Commerce commented that updates would also be
burdensome for OSHA, stating that ``any suggestion that OSHA will be
able to keep up with this insurmountable task of maintaining an
immediately accessible, accurate database is not credible'' (Ex. 1396).
The Pacific Maritime Association made a similar comment (Ex. 1326).
    Finally, the Phylmar Regulatory Roundtable (PRR) suggested that the
benefits of updates might be insignificant overall, since ``[f]or
large, established, legacy employers, many years of experience has
shown that while updates are required by law, they are usually of minor
consequence and/or correction and rarely, if ever, reflect a major and
significant change in the safety performance of a company'' (Ex. 1110).
    Several commenters provided OSHA with suggestions about how to
proceed with the question of whether or not the electronic data
submission system should include updates. The American College of
Occupational and Environmental Medicine (ACOEM) suggested that the
system should allow but not require updates. They commented that ``the
accuracy of reported data could be optimized by permitting, though not
requiring, employers to update their data after submission as new
information becomes available about specific injuries, exposures, and
diseases'' (Ex. 1327). The International Brotherhood of Teamsters and
Thoron Bennett provided similar comments (Exs. 0035, 1381).

    Finally, the U.S. Chamber of Commerce commented that ``if OSHA
insists on pressing forward with a rule of this type, it must start
over and reintroduce a proposed rule with an adequate system for
updating submitted data that stakeholders may meaningfully consider and
comment on'' (Ex. 1396).
    In response, OSHA agrees with the commenters who stated that
allowing updates but not requiring updates would improve the accuracy
of the data while limiting the burden on employers. Accurate data will
help OSHA, researchers, employers, employees, and the public in their
efforts to improve workplace safety and health. In addition, because
the final rule requires annual submission of records for establishments
with 250 or more employees, rather than quarterly submission as
proposed in the NPRM, employers will be able to update information
throughout the year before they certify the 300A. Annual reporting also
reduces the likelihood that employers will need to update information
after reporting to OSHA. Therefore, OSHA plans to design a reporting
system that will allow but not require updates.
Accuracy of the Collected and Published Data
    In the preamble to the proposed rule, OSHA asked, ``How can OSHA
use the electronic submission requirement to improve the accuracy of
injury and illness records by encouraging careful reporting and
recording of work-related injuries and illnesses?'' [78 FR 67271].
    Several commenters provided technical comments on ways for OSHA to
improve the accuracy of injury and illness records collected through
electronic submission. As mentioned in the previous section, many
commenters commented that allowing updates could improve the accuracy
of collected data (Exs. 1205, 1217, 1219, 1275, 1326, 1327, 1331, 1355,
1358, 1360, 1378, 1389, 1396, 1399, 1408). Rachel Armont further
commented that ``[o]n the data management side of things, perhaps
[OSHA] could open up the site as a way to keep a real-time log of work-
related injuries so it's not a one-time submission process'' (Ex.
0198).
    The Council of State and Territorial Epidemiologists (CSTE)
commented that ``[t]he proposed electronic collection of data, in the
longer run, offers the opportunity to provide employers with electronic
tools (prompts, definitions, consistency edits, and industry specific
drop down lists) that have the potential to improve the quality of the
data reported'' (Ex. 1106). The American Federation of State, County,
and Municipal Employees (AFSCME) provided a similar comment (Ex. 1103).
    ORCHSE Strategies, LLC commented that OSHA should develop ``a
useful set of decision-making software to assist users in making
accurate recordkeeping decisions. The current OSHA software does little
more than summarize the text in the regulations. What is needed is
software that employers can use to correctly answer their ``what if''
questions'' (Ex. 1339).
    The American College of Occupational and Environmental Medicine
(ACOEM) commented that OSHA could provide ``an electronic tool for
employers to self-check their submitted information for recordkeeping
errors and for deviance from industry averages (Ex. 1327). The American
Federation of Teachers (AFT) provided a similar comment (Ex. 1358).
    The American Federation of Teachers (AFT) also commented that
``[t]he agency could provide training through consultation to employers
on the importance and value of accurate record-keeping. Training could
also be provided to trade associations, labor unions and other advocacy
groups on the importance and value of encouraging employees to report
their injuries and illnesses. As well, the agency might consider a
special emphasis program of targeted inspections for record-keeping.
The agency could target those establishments with the highest rates as
well as the lowest rates to ascertain accuracy'' (Ex. 1358).
    Finally, the Phylmar Regulatory Roundtable (PRR) commented that
``if OSHA seeks to encourage careful, accurate reporting and recording
of injuries and illnesses, promulgating an annual submission
requirement (versus quarterly) makes the most sense. Companies will
have the time to review the quality of records, correct errors, and
obtain the approval of a senior company official before providing data
to OSHA. Requiring quarterly submission and updating is overly
burdensome for employers and likely to result in more errors in the
database, leaving OSHA with information that is less accurate'' (Ex.
1110).
    As mentioned in the previous section, OSHA agrees with the
commenters who stated that allowing updates but not requiring updates
would improve the accuracy of the data. Also as discussed above,
although the proposed rule would have required quarterly reporting from
companies with 250 or more employees, the final rule requires annual
reporting. In addition, when OSHA develops the data collection system,
the Agency will also incorporate a range of edit checks. Specifically,
OSHA will leverage and expand on form validation routines and
validation checks that were developed and refined over the years for
the ODI online submission version of OSHA Form 300A (Form 196B). Edit
checks can promote submission accuracy, for instance by alerting the
submitter when input to a particular data field is outside the expected
range or in conflict with other established parameters. The Agency also
plans to program the data collection system so that, when the user logs
in, the system will recognize the user and display appropriate user-
specific information. For instance, for a first-time user, the system
may present links for appropriate submission options (e.g., annual
summary data, special collections). For a return user, the system may
display a dashboard page that shows recent submission history in a
tabular format, including links to complete and draft (or in-process)
submissions. From the dashboard, the user would be able to view a
completed, executed form or continue with an in-progress submission. In
this way, the user will be able to prepare a submission over multiple
user sessions during the year before finalizing its submission to the
Agency.
    Finally, OSHA notes that, as discussed above, Sec.  1904.32 already
requires company executives subject to part 1904 requirements to
certify that they have examined the annual summary (Form 300A) and
reasonably believe, based on their knowledge of the process by which
the information was recorded, that the annual summary is correct and
complete. OSHA recognizes that most employers are diligent in complying
with this requirement. However, a minority of employers is less
diligent; in recent years, one third or more of violations of Sec.
1904.32, and up to one tenth of all recordkeeping (part 1904)
violations, have involved this certification requirement. It is OSHA's
hope that, if this minority of employers knows that their data must be
submitted to the Agency and may also be examined by members of the
public, they may pay more attention to the requirements of part 1904,
which could lead both to improvements in the quality and accuracy of
the information and to better compliance with Sec.  1904.32.
    In the preamble to the proposed rule, OSHA also asked, ``How should
OSHA design an effective quality assurance program for the electronic
submission of injury and illness records?'' [78 FR 67271].
    Several commenters commented on how OSHA could design an effective
quality assurance program for the

electronic submission of injury and illness records. The Southern
Poverty Law Center (SPLC) commented that OSHA could improve data
quality by ``cross-checking [the data] with records kept in employers'
own medical staff's offices, with workers' compensation records, and
with any other available records'' (Ex. 1388).
    The International Union (UAW) commented that ``[j]oint union-
management methods of validating data through computerized systems have
proven effective and can serve as a model for OSHA's modernization''
(Ex. 1384). The American College of Occupational and Environmental
Medicine (ACOEM) commented that OSHA should ``increase medical record
audits to assure accurate recordkeeping and reporting'' and ``increase
the number of targeted inspections of companies deviating (positively
or negatively) from the industry--norm incident and DART rates'' (Ex.
1327). The American Federation of Teachers (AFT) provided similar
comments (Ex. 1358).
    The International Brotherhood of Teamsters commented that ``OSHA
may discuss [a quality assurance and audit program] with other
government agencies that may have such programs. They would include
FMCSA (SMS), MSHA and FRA, but could include other government agencies
that receive electronic records as well'' (Ex. 1381). Finally, the
Coalition for Workplace Safety (CWS) commented that OSHA should
implement ``error screening and follow-back procedures to correct and/
or verify questionable data reported'' (Ex. 1411).
    In response, OSHA plans to look at examples from other federal
agencies. Two examples from the U.S. EPA are the Toxics Release
Inventory (TRI) Program and the Greenhouse Gas Reporting Program. The
TRI Program, which collects data from a wide range of facilities
nationwide, takes steps to promote data quality, including analyzing
data for potential errors, contacting TRI facilities concerning
potentially inaccurate submissions, providing guidance on reporting
requirements and, as necessary, taking enforcement actions against
facilities that fail to comply with TRI requirements. For the
Greenhouse Gas Reporting Program, quality assurance checks include
evaluating submitted data against an extensive array of electronic
checks that ``flag'' potential errors. For example, statistical checks
are used to evaluate data from similar facilities and identify data
that might be outliers. Also, algorithm checks consider the
relationships between different pieces of entered information and
compare the information to an expected value. These flags are then
manually reviewed to assess the cause of the flag; if EPA finds a
potential error, EPA follows up with the reporter. The GHGRP has given
some consideration to conducting on-site audits of reporting
facilities.
    In addition, actions OSHA has taken in the past as part of data
collection for the ODI included running programmed routines that
checked establishment submissions and then, based on results, assigned
a submission status code indicating whether the data submitted passed
the edits and was considered usable or not usable. These routines were
informed by routines the BLS used for the Survey of Occupational
Injuries and Illnesses.
    OSHA will form a working group with BLS to assess data quality,
timeliness, accuracy, and public use of the collected data, as well as
to align the collection with the BLS SOII.
Categories of Information That Are Useful To Publish
    In the preamble to the proposed rule, OSHA asked, ``Which
categories of information, from which OSHA-required form, would it be
useful to publish?'' [78 FR 67271].
    OSHA received many comments about the benefits that would result
from publishing all of the information that OSHA collects, except for
PII, including improved research and analysis of injury and illness
trends, improved motivation for employers to provide safe workplaces,
more information for employees and potential employees, more
information for customers and the public, injury and illness
prevention, and various other benefits.
    For improved research and analysis of injury and illness trends,
there were many comments that publication of this information would
allow employers, workers, researchers, unions, and the public to
improve workplace safety by providing the data for better research and
analysis of injury and illness trends (Exs. 0245, 0254, 1110, 1203,
1207, 1208, 1219, 1278, 1345, 1350, 1354, 1371, 1380, 1381, 1387, 1388,
1393, 1395, 1424). For example, the United Food & Commercial Workers
International Union (UFCW) commented that publication of data would
``enable the public, unions, employees, and other employers to search
and analyze the data. Further, by making the data available
electronically from OSHA, interested parties can much more easily
analyze trends, assess effective health and safety programs and track
ongoing hazards by establishment, enterprise and industry'' (Ex. 1345).
Andrew Sutton provided a similar comment (Ex. 0245).
    There were also comments that publication of this data would
improve the occupational safety and health surveillance capacity of the
United States. The Council of State and Territorial Epidemiologists
(CSTE) commented that ``OSHA's proposal to electronically collect and
make available the data employers already record on work-related
injuries and illnesses would substantially enhance occupational health
surveillance capacity in the United States'' (Ex. 1106). The California
Department of Industrial Relations (DIR), Office of the Director
provided a similar comment (Ex. 1395).
    Several commenters also commented that publication of the data
would particularly help with identifying emerging hazards (Exs. 1106,
1211, 1327, 1330, 1347, 1371, 1382). For example, the Council of State
and Territorial Epidemiologists (CSTE) commented that publication of
establishment-level data ``has the potential to facilitate timely
identification of emerging hazards. These include both new and newly
recognized hazards. A relatively recent case example is illustrative.
In 2010, the Michigan Fatality Assessment and Control Evaluation
program identified three deaths associated with bath tub refinishing,
raising new concern about hazards of chemical strippers used in this
process . . . These findings led to the development of educational
information about the hazards associated with tub refinishing and
approaches to reducing risks that was disseminated nationwide to
companies and workers in the industry'' (Ex. 1106).
    For increased motivation for employers to provide safer workplaces,
there were several comments that publication of the data would allow
companies to benchmark their safety and health performance against
similar companies (Exs. 0241, 0245, 1106, 1126, 1278, 1327, 1341, 1358,
1371, 1381, 1387, 1393). For example, the American Industrial Hygiene
Association (AIHA) commented that data publication ``should also enable
employers to benchmark against others in their industry. The sharing of
statistics could also identify solid performers who might help others
upgrade their processes and outcomes'' (Ex. 1126). Senator Tom Harkin
made a similar comment (Ex. 1371).
    Michael Houlihan further commented that ``the disclosure
requirement may improve the performance of managers

by drawing public attention to the illness and injury rates at their
facilities'' (Ex. 1219). Peter Strauss, Richard R, Sarah Wilensky, and
Ashok Chandran provided similar comments (Exs. 0187, 1209, 1382, 1393).
    For more information for employees and potential employees, there
were multiple comments that publication of the data would allow
employees to use the data to make better decisions about where to work
(Exs. 0145, 1219, 1278, 1327, 1341, 1350, 1371, 1395). For example,
Worksafe commented that ``electronic posting by OSHA of information
related to fatality and injury and illness incidents would allow
individuals who may be considering employment to assess the types,
severity, and frequency of injuries and illnesses of a particular firm
or workplace'' (Ex. 1278). Professor Sherry Brandt-Rauf of the School
of Public Health at the University of Illinois at Chicago provided a
similar comment (Ex. 1341).
    Many commenters stated that data publication would be especially
helpful because employees would be able to get safety and health data
from their workplace anonymously and without fear of retaliation (Exs.
1188, 1211, 1278, 1345, 1381, 1387, 1388, 1393, 1424). For example, the
Southern Poverty Law Center commented that ``[e]ven an employee's
simple request to view an OSHA 300 log might be met by an employer in a
dangerous, low-wage industry such as poultry or meat processing with
suspicion, threats, or even termination. Given these realities in many
American workplaces, any steps the Department takes to increase
workers' access to records about health and safety in their own
workplaces will provide workers with better tools with which to protect
their bodies and their lives'' (Ex. 1388).
    For more information for customers and the public, there were
comments that publication of the data could help customers and the
public decide whom to do business with (Exs. 0248, 1114, 1278, 1327,
1341, 1371, 1395). For example, Worksafe commented that ``there are
potential benefits for current or potential suppliers, contractors for,
and purchasers of a firm's goods or services. These parties would have
the opportunity to consider the information in their business
decisions, such as how a supplier's injury and illness experience would
reflect on their own business'' (Ex. 1278). Senator Tom Harkin also
commented that data publication ``may be of use not just to the public,
but also by contracting officers at federal agencies when assessing
prospective contractors' safety performance'' (Ex. 1371).
    For prevention of workplace injuries and illnesses, NIOSH commented
that ``electronically-collected and stored injury and illness data can
be an asset to establishments/employers for planning prevention
intervention activities'' (Ex. 0216). The AFL-CIO made a similar
comment (Ex. 1350).
    The New York States Nurses Association commented that ``having this
data and information would greatly improve the ability to research
trends which may contribute to preventing and mitigating workplace
violence injuries'' (Ex. 0254). The AFL-CIO provided a similar comment
(Ex. 1350). The United Food & Commercial Workers International Union
(UFCW) emphasized the role that labor unions could play in such
research, commenting that ``[a]nalysis of the information can identify
trends among and between companies, and at specific sites within one
company . . . Plant management in one location may be using effective
strategies that result in a decrease in injuries and illnesses; these
effective strategies can be passed on to sister plants in the same
company. By examining other establishments' OSHA injury and illness
data for those without declining injury rates, the [UFCW] has been able
to target areas for improved prevention strategies'' (Ex. 1345). The
Service Employees International Union (SEIU) provided a similar comment
(Ex. 1387).
    The California Department of Industrial Relations (DIR), Office of
the Director commented that the proposed rule ``would specifically help
identify and abate workplace hazards by improving the surveillance of
occupational injury and illness. Complete and accurate surveillance of
occupational injury and illness is essential for informed policy
decisions and for effective intervention and prevention programs'' (Ex.
1395). The Council of State and Territorial Epidemiologists (CSTE)
provided a similar comment (Ex. 1106).
    There were also comments about various other benefits of data
publication. Lancaster Safety Consulting, Inc. commented that
``[o]nline access to the injury and illness data will provide a means
for occupational safety and health (OSH) professionals to reach out to
companies that are in apparent need of assistance with their OSH
programs'' (Ex. 0022). The Council of State and Territorial
Epidemiologists (CSTE) and the International Brotherhood of Teamsters
provided similar comments (Exs. 1106, 1381).
    Several commenters commented that data publication would make it
easier for labor unions to access safety and health data when
representing workers (Exs. 0245, 1209, 1350, 1381, 1387, 1424). For
example, the AFL-CIO commented that ``[i]t will assist unions in their
efforts to collect injury and illness information from employers to
assess conditions in individual workplaces and across employers and
industries where they represent workers. Many unions already collect
this information under their rights of access under the recordkeeping
rule. But currently, this information must be requested and collected
establishment by establishment, making the collection and analysis of
this data difficult and time consuming and hindering prevention
efforts'' (Ex. 1350). The Council of State and Territorial
Epidemiologists (CSTE) commented about the benefits for community
health planning, stating that ``[t]he availability of establishment
specific information also offers a potential opportunity to incorporate
occupational health concerns in community health planning, which is
increasingly providing the basis for setting community health and
prevention priorities'' (Ex. 1106). Finally, the International
Brotherhood of Teamsters commented that ``[g]iven the difficulties that
both union and non-union workers face, and OSHA's inability to fully
enforce the 1904 rules, the public release of the data is actually
necessitated since it would allow workers to have a subsidiary role in
``enforcing'' those requirements'' (Ex. 1381).
    On the other hand, the Interstate Natural Gas Association of
America commented the ``[i]njury and illness data contained in 300-A
Summaries is the only information that may be useful, but this
information is limited'' (Ex. 1206).
    In response, OSHA agrees with the commenters above who commented
that the benefits that would result from publishing all of the
information that OSHA collects, except for PII, include improved
research and analysis of injury and illness trends, improved motivation
for employers to provide safe workplaces, more information for
employees and potential employees, more information for customers and
the public, and injury and illness prevention.
    There were also many comments that publishing the data would not be
beneficial for various reasons, including the misleading nature of the
published data and a focus on lagging instead of leading indicators.

    For the misleading nature of the published data, many commenters
commented that the published data will be misleading because the data
do not tell the whole story and do not provide any context (Exs. 0138,
0162, 0163, 0171, 0174, 0179, 0181, 0188, 0189, 0194, 0218, 0224, 0234,
0242, 0255, 0256, 0258, 1084, 1090, 1091, 1092, 1093, 1109, 1111, 1112,
1113, 1116, 1123, 1187, 1190, 1192, 1193, 1194, 1195, 1196, 1198, 1199,
1200, 1201, 1204, 1205, 1206, 1210, 1214, 1215, 1217, 1218, 1222, 1225,
1272, 1273, 1275, 1276, 1279, 1318, 1321, 1322, 1323, 1324, 1326, 1327,
1328, 1329, 1332, 1333, 1334, 1336, 1338, 1340, 1342, 1343, 1349, 1355,
1356, 1359, 1360, 1363, 1364, 1365, 1368, 1370, 1373, 1376, 1378, 1379,
1385, 1386, 1389, 1390, 1391, 1392, 1394, 1396, 1397, 1399, 1400, 1402,
1406, 1408, 1409, 1410, 1411, 1416, 1426).
    For example, the Coalition for Workplace Safety (CWS) commented
that ``[t]he data that OSHA will collect and make publicly available is
not a reliable measure of an employer's safety record or its efforts to
promote a safe work environment. Many factors outside of an employer's
control contribute to workplace accidents, and many injuries that have
no bearing on an employer's safety program must be recorded. Data about
a specific incident is meaningless without information about the
employer's injuries and illness rates over time as compared to
similarly sized companies in the same industry facing the same
challenges (even similar companies in the same industry may face
substantially different challenges with respect to workplace safety
based on climate, topography, population density, workforce
demographics, criminal activity in the region, proximity and quality of
medical care, etc.)'' (Ex. 1411). The National Association of
Manufacturers (NAM) provided a similar comment (Ex. 1279).
    Many commenters also commented on a related concern that OSHA
should not publish the data since the public will misinterpret the data
(Exs. 0027, 0143, 0152, 0159, 0160, 0189, 0197, 0210, 0211, 0218, 0224,
0239, 0240, 0242, 0251, 0253, 0255, 0256, 0258, 1084, 1090, 1091, 1092,
1093, 1109, 1111, 1112, 1113, 1123, 1124, 1125, 1191, 1192, 1194, 1197,
1199, 1200, 1205, 1210, 1214, 1215, 1217, 1218, 1224, 1225, 1272, 1273,
1275, 1276, 1279, 1322, 1326, 1327, 1329, 1332, 1333, 1334, 1336, 1338,
1340, 1343, 1344, 1359, 1368, 1370, 1372, 1379, 1389, 1391, 1396, 1397,
1399, 1400, 1408, 1410, 1413, 1415, 1416). For example, the American
Foundry Society commented that ``[t]he public . . . could take the
injury and illness data out of context, as they would not be privy to
the details behind the injuries, the safety measures employers adopt,
or any other relevant information related to the circumstances of the
injury or illness'' (Ex. 1397). The Puget Sound Shipbuilders
Association also commented that ``[w]e are concerned about the level of
knowledge and understanding the general public has about OSHA
recordable cases and believe it is very limited'' (Ex. 1379).
    Finally, there were comments that recordkeeping data collected
under the proposed rule would not improve workplace safety and health
since they are lagging indicators (Exs. 0163, 0250, 1194, 1279, 1342,
1363, 1389, 1408, 1410) and that leading indicators are necessary to
improve future workplace safety and health outcomes (Exs. 0027, 0053,
0162, 0163, 0197, 1204, 1279, 1331, 1339, 1342, 1363, 1389, 1406, 1408,
1410, 1416, 1417).
    For example, the Mechanical Contractors Association of America
(MCAA) commented that ``that lagging indicators, such as OSHA Incidence
Rates, are poor indicators of safety performance. Many occupational
safety and health professionals share this belief. For example, The
American National Standards Institute's (ANSI) A10 Construction and
Demolition Operations Committee is currently working on a technical
report to help educate government agencies, construction owners, and
construction employers about the relative ineffectiveness of lagging
indicators'' (Ex. 1363). The National Association of Manufacturers made
a similar comment (Ex. 1279).
    The National Association of Home Builders (NAHB) commented that
``[l]eading indicators measure what`s happening right now and may be a
better gauge of safety performance. The leading indicators attempt [to]
measure safety performance by utilizing tools such as tracking safe or
unsafe behaviors or workers, investigating near-miss incidents,
performing workplace audits and inspections, and conducting safety
training'' (Ex. 1408).
    The American Society of Safety Engineers (ASSE) commented that
``ASSE and other leading safety and health organizations have put
considerable work into developing resources and encouraging companies
to move away from `trailing' and towards `leading' indicators for
evaluating workplace safety. As OSHA itself knows, `trailing'
indicators focus an organization on safety after the fact of an injury
or fatality. `Leading' indicators better focus an organization on the
best practices that prevent injuries and fatalities'' (Ex. 1204).
However, the Environmental, Health & Safety Communications Panel
(EHSCP) commented that OSHA should promote ``a balance of leading and
lagging measures'' to measure safety performance (Ex. 1331). The
National Rural Electric Cooperative Association (NRECA) provided a
similar comment (Ex. 1417).
    Several commenters also commented that the proposed rule could harm
workplace safety and health by shifting employers' focus from leading
indicators to lagging indicators (Exs. 0027, 0157, 0163, 1109, 1124,
1194, 1204, 1372, 1389, 1406, 1408, 1410, 1416). For example, the
American Society of Safety Engineers (ASSE) commented that ``[p]ublic
release of numbers and rates of injuries by establishment will cause
many employers to use their resources to address `trailing,' not
`leading' indicators . . . ASSE is concerned that this proposal, and
the additional attention that a national database of injury rates and
numbers will attract, works against the professions' [sic] years of
effort in moving workplace safety towards `leading' indicators'' (Ex.
1204). The American Feed Industry Association made a similar comment
(Ex. 1372).
    In response, OSHA does not agree that the publishing of
recordkeeping data under this final rule will be misleading or that the
public will misinterpret the data. The recordkeeping data represent
real injuries and illnesses (injuries and illnesses that required more
than first aid) that occurred at the workplace and were recordable
under part 1904. While they do not, by themselves, provide a complete
picture of workplace safety and health at that workplace, employers are
free to post their own materials to provide context and explain their
workplace safety and health programs. In addition, when OSHA publishes
the data, the Agency will provide links to resources, such as industry
rates from BLS, to help the public put the information in context. OSHA
will also include language explaining the definitions and limitations
of the data, as OSHA has done since the Agency began publishing
establishment-specific injury and illness data from the OSHA Data
Initiative on its public Web site in 2009. For the published ODI data,
OSHA has included the following explanatory note on data quality:
``While OSHA takes multiple steps to ensure the data collected is
accurate, problems and errors invariably exist for a small percentage
of establishments. OSHA does not believe the data for the

establishments with the highest rates on this file are accurate in
absolute terms. Efforts were made during the collection cycle to
correct submission errors, however some remain unresolved. It would be
a mistake to say establishments with the highest rates on this file are
the ``most dangerous'' or ``worst'' establishments in the Nation.''
    Similarly, OSHA does not agree that the part 1904 recordkeeping
data will not improve workplace safety and health due to being lagging
indicators instead of leading indicators. As stated above, the
recordkeeping data represent real injuries and illnesses that occurred
at the workplace and were recordable. In addition, as stated above,
employers are free to post their own materials--including leading
indicators--to provide context and explain their workplace safety and
health programs. However, perhaps in a future rulemaking related to
recordkeeping, OSHA might request information about leading indicators,
including which leading indicators (if any) it would be most useful to
add to the injury and illness records employers are required to keep
under part 1904.
    As discussed above, OSHA intends to make the data it collects
public. The publication of specific data elements will in part be
restricted by applicable federal law, including provisions under the
Freedom of Information Act (FOIA), as well as specific provisions
within part 1904. OSHA will make the following data from the various
forms available in a searchable online database:
     Form 300A (Annual Summary Form)--All collected data fields
will be made available. In the past, OSHA has collected these data
under the ODI and during OSHA workplace inspections and released them
in response to FOIA requests. The annual summary form is also posted at
workplaces under Sec.  1904.32(a)(4) and (b)(5). OSHA currently
publishes establishment-specific injury and illness rates calculated
from the data collected through the ODI on OSHA's public Web site at
http://www.osha.gov/pls/odi/establishment_search.html. The 300A annual
summary does not contain any personally-identifiable information.
     Form 300 (the Log)--All collected data fields on the 300
Log will generally be made available on the Web site. Employee names
will not be collected. OSHA occasionally collects these data during
inspections as part of the enforcement case file. OSHA generally
releases these data in response to FOIA requests. Also, Sec.
1904.29(b)(10) prohibits release of employees' names and personal
identifiers contained in the forms to individuals other than the
government, employees, former employees, and authorized
representatives. OSHA does not currently conduct a systematic
collection of the information on the 300 Log.
     Form 301 (Incident Report)--All collected data fields on
the right-hand side of the form (Fields 10 through 18) will generally
be made available. The Agency currently occasionally collects the form
for enforcement case files. OSHA generally releases these data in
response to FOIA requests. Section 1904.35(b)(2)(v)(B) prohibits
employers from releasing the information in Fields 1 through 9 (the
left-hand side of the form) to individuals other than the employee or
former employee who suffered the injury or illness and his or her
personal representatives. Similarly, OSHA will not publish
establishment-specific data from the left side of Form 301. OSHA does
not release data from Fields 1 through 9 in response to FOIA requests.
The Agency does not currently conduct a systematic collection of the
information on the Form 301. However, the Agency does review the entire
Form 301 during some workplace inspections and occasionally collects
the form for inclusion in the enforcement case file. Note that OSHA
will not collect or publish Field 1 (employee name), Field 2 (employee
address), Field 6 (name of treating physician or health care provider),
or Field 7 (name and address of non-workplace treating facility).
Helping Employers, Employees, and Potential Employees Use the Collected
Data
    In the preamble to the proposed rule, OSHA asked, ``What analytical
tools could be developed and provided to employers to increase their
ability to effectively use the injury and illness data they submit
electronically?'' [78 FR 67271].
    There were several comments about analytical tools that could be
developed and provided to employers to increase their ability to
effectively use the injury and illness data they submit electronically.
NIOSH commented about their current pilot project that provides
employers with a tool to analyze their safety and health data, stating,
``NIOSH developed a web-portal and information system that accepts
traumatic injury data electronically, including the fields/
characteristics recorded on OSHA Form 300 . . . Participating
establishments send all data voluntarily. The system does not accept
personal data. Establishments are not identified and comparison data
are in aggregate form. After receipt, the data undergo quality checks
and are uploaded to an analyzable database that is available to the
establishment via the web-portal in seven to 10 days. The establishment
can use the online system to examine its injury patterns over time and
to compare its rates with other establishments by size, region, type,
and other variables. In addition, the system provides users with
information on best practices for the industry, injury-reduction
interventions, and other up-to-date health and safety information''
(Ex. 0216). The American College of Occupational and Environmental
Medicine (ACOEM) also commented about the desirability of a tool
similar to the one that NIOSH is piloting (Ex. 1327).
    The International Brotherhood of Teamsters commented that ``two of
our employers use injury/illness tracking systems to collect and record
all OSHA-recordable occupational injuries/illnesses. We would encourage
OSHA to provide tools that would bolster and enhance employer efforts
aimed at preventing injuries and illnesses. These tools could be useful
to our membership as well, especially at establishments that have joint
labor- management health and safety committees'' (Ex. 1381).
    The International Association of Industrial Accident Boards and
Commissions (IAIABC) commented that if OSHA ``adopts an electronic
reporting requirement, the IAIABC urges OSHA to consider the benefits
of using the IAIABC's established First and Subsequent Reports of
Injury Standard (IAIABC EDI Claims Standard). Implementation of an
existing electronic standard would be much faster and easier than
developing a brand new electronic reporting protocol. The IAIABC EDI
Claims Standard fully supports differing types of transactions
including new reports, updates/corrections to previous submissions, and
even has the capacity to limit what data can be modified after it has
been submitted. Furthermore, the IAIABC EDI Claims Standard includes an
`upon request' type of report which OSHA has indicated a potential need
to support'' (Ex. 1104).
    In response, OSHA notes that, in 2011, IAIABC and NIOSH signed a
memorandum of understanding that outlined opportunities for
collaboration, including utilizing workers' compensation data to
identify emerging issues and trends in occupational safety and health.
In addition, EPA's Toxics Release Inventory (TRI) Program provides a
range of analytical tools that include the TRI Pollution Prevention
(P2) Tool (users can explore and compare facility and parent company

information on the management of toxic chemical waste, including
facilities' waste management practices and trends); TRI.NET (with this
desktop application, users can build customized TRI data queries, then
map results and overlay other data layers); and Envirofacts (an online
tool that provides access to all publicly available TRI data in a
searchable, downloadable format). Related analytical tools that make
use of TRI data include the DMR Pollutant Loading Tool (users can
determine what pollutants are being discharged into waterways and by
which companies, and can compare DMR data search results against TRI
data search results) and Enviromapper (users can generate maps that
contain environmental information, including TRI information).
Similarly, EPA's GHGRP provides a number of online tools for mapping,
charting, comparing, and otherwise analyzing facility reported data.
    OSHA is considering including reporting capabilities in future
versions of the data collection system, so that employers can view
useful outputs from their submitted data (e.g., data visualizations of
trends, data table displays, reports with summary counts and
statistics). The intention, in part, will be to encourage employers to
consider injury/illness trends at or across their establishment(s), so
they can abate hazards without prompting by an OSHA intervention.
    In the preamble to the proposed rule, OSHA also asked, ``How can
OSHA help employees and potential employees use the data collected
under this proposed rule?'' [78 FR 67271].
    There were various comments about how OSHA could help employees and
potential employees use the data collected under this rule. Many
commenters supported provision of the data in a way that allows for
easy analysis of the information. For example, the California
Department of Industrial Relations (DIR), Office of the Director
commented that ``data sharing needs to be timely, user-friendly, user-
accessible, and searchable by common fields including geography
(ideally to county level or smaller), employer, and industry. Industry
codes should be uniform and up-to-date. Posted data should ensure
entity resolution and easy searching by establishment name. Multiple
establishments that are the same company should be identifiable as a
single company. Employees, employers, researchers, and community
members all have different uses for the data, and each should be taken
into account. The underlying data (once cleaned of personally
identifiable information) should be downloadable (similar to American
Fact Finder) for manipulation and statistical calculations'' (Ex.
1395). The AFL-CIO, Senator Tom Harkin, Change to Win, the Service
Employees International Union (SEIU), and the United Steelworkers
provided similar comments (Exs. 1350, 1371, 1380, 1387, 1424).
    Senator Harkin also commented that OSHA's ``sister agency the Mine
Safety and Health Administration (MSHA), along with other agencies like
the Federal Railroad Administration (FRA) and Federal Aviation
Administration (FAA), currently publish establishment-specific accident
and injury and illness data. We believe that OSHA should consult with
these agencies to learn about design problems and potential best
practices to adopt before creating its database'' (Ex. 1371). The
Service Employees International Union (SEIU) provided a similar comment
(Ex. 1387).
    Other commenters had other ideas. For example, the Council of State
and Territorial Epidemiologists (CSTE) commented that ``[s]tandardized
feedback to establishments and potential reports of establishment
specific data could be programmed that would promote use of the data by
employers and workers to set health and safety priorities and monitor
progress in reducing workplace risks'' (Ex. 1106).
    The Building and Construction Trades Department, AFL-CIO commented
that ``the data should be organized and made available in different
formats for different data users. For example, an individual employee
may be interested in the establishment for which he/she works, while a
researcher is more likely to get statistics in general. Therefore, the
new data collection should include multiple levels of data access to
meet different needs'' (Ex. 1346).
    In response, when OSHA develops the publicly-accessible Web site,
the Agency will make the raw data available in multiple formats (after
it has been scrubbed of PII) for use by employers, employees,
researchers, and the public in evaluating opportunities to address
workplace safety and health. The Agency may also provide reporting and
analytics tools for employers to view useful outputs from their
submitted data (e.g., data visualizations of trends, data table
displays, reports with summary counts and statistics). The intention,
in part, will be to encourage employers to consider injury/illness
trends at or across their establishment(s), so they can abate hazards
without prompting by an OSHA intervention. The Agency plans to provide
similar tools on the public Web site so that the data will be more
useful and accessible to members of the public who may not need or want
to download data and perform their own analysis.
Helping Small-Business Employers Comply With Electronic Data Submission
Requirements
    In the preamble to the proposed rule, OSHA asked, ``How can OSHA
help employers, especially small-business employers, to comply with the
requirements of electronic data submission of their injury and illness
records? Would training help, and if so, what kind?'' [78 FR 67271].
    There were five major issues addressed by commenters about how to
help small employers comply with electronic data submission
requirements: General characteristics of a system that would help
small-business employers comply with electronic data submission
requirements; capability for immediate feedback; connecting the
recordkeeping system with the reporting system; training and outreach;
and third-party capability.
    For general characteristics, several commenters commented that
careful overall design of its Web site and other technical support
could help employers, especially small-business employers, comply with
the requirements of electronic data submission. The Phylmar Regulatory
Roundtable (PRR) commented that ``the `user friendliness' of the Web
site will be the key to success for this electronic data submission
program. It should have an extensive and strong help menu, as well as a
go-to phone number (as is currently provided in the BLS data request)
for help with the system. A universal data language must be provided
(e.g., XML) so that regardless of the platform used for recordkeeping,
the information may easily be uploaded to OSHA's Web site. OSHA's
system must have sufficient capacity and be robust enough to handle the
massive quantities of data that 580,000 employers will be submitting
within roughly the same time frame'' (Ex. 1110). The American
Subcontractors Association provided a similar comment (Ex. 1322).
    For immediate feedback after data submission, the Dow Chemical
Company commented that ``OSHA is proposing to require electronic
reporting by strict deadlines. It is therefore vitally important for
employers to receive immediate feedback as to whether their data entry
was successful or unsuccessful. OSHA's web portal should respond to
each and every attempt at data entry, by providing a confirmation of
receipt or a confirmation of failure. The confirmation notice should
describe

what was received (or not received) with sufficient detail to be useful
in resolving disputes in an enforcement context'' (Ex. 1189). The
Phylmar Regulatory Roundtable (PRR) provided a similar comment (Ex.
1110).
    For connecting the recordkeeping and reporting systems, the AFL-CIO
commented that ``[t]o assist smaller employers in reporting workplace
injury and illness data electronically, it would helpful for OSHA to
provide basic software for workplace injury and illness recordkeeping
from which the data can be easily uploaded/reported to OSHA through a
secure Web site as OSHA envisions'' (Ex. 1350). Ashok Chandran provided
a similar comment, suggesting that OSHA provide ``a mobile application
that employers could use to submit their records'' and ``a web portal
that allows employers to enter data directly'' (Ex. 1393).
    For outreach and training, the Allied Universal Corporation
commented that ``OSHA should also develop a training program [about the
requirements of electronic data submission], hosting webinars or
similar events across the United States and reach out to many trade
associations'' (Ex. 1192). The International Association of Industrial
Accident Boards and Commissions (IAIABC) and the American
Subcontractors Association (ASA) provided similar comments (Exs. 1104,
1322).
    Other commenters commented that training on current OSHA
requirements would also be helpful. The California Department of
Industrial Relations (DIR), Office of the Director commented that
``many employers could benefit from outreach and education on how and
what to report, including reference to 29 CFR 1904.31, employees
covered by the OSHA recordkeeping standard'' (Ex. 1395). The Associated
General Contractors of America (AGC) provided a similar comment (Ex.
1416).
    For third-party capability, Veriforce also commented that third-
party electronic submission capabilities could be helpful for
employers. They commented that pipeline industry contractors could be
helped if ``3rd party companies with contractor permission [could]
electronically upload [the contractor's] data into the new OSHA
Injuries and Illnesses reporting Web site[.] It will become more
difficult for contractors to have to continue to report electronically
to 3rd party companies and then now have to enter the same information
into this new OSHA system when the 3rd party companies which have a
contract with the contractor can just electronically forward the
information to the this new OSHA Web site'' (Ex. 0243).
    In addition to the comments related to the five major issues, some
commenters commented with other ideas about how OSHA could help small-
business employers comply with the new requirements. The United Food &
Commercial Workers International Union (UFCW) commented that they
support ``making the new reporting requirements as simple as possible .
. . In the UFCW's experience, keeping the requests as simple as
possible for all of our employers (including those who fall into the
smaller business category), results in greater data acquisition'' (Ex.
1345). In addition, some commenters included comments about a phase-in
period being helpful to employers, which were addressed above in
comments to Alternatives C and D (Exs. 0210, 1104, 1322, 1401).
    In response to these comments, when OSHA develops the data
collection system, the Agency will make every effort to ensure ease of
use with small-business employers in mind. To the extent possible,
features will be incorporated to minimize the number of keystrokes and
mouse-clicks required to complete a form (e.g., pick-lists and
widgets). Also, forms will be programmed to prefill establishment
information where appropriate (e.g., establishment name and address
from registration or prior submissions) as well as to auto-calculate
and/or carry totals over from associated forms (e.g., Form 300 column
totals will auto-calculate and be programmed to pre-populate Form
300A). Additional functionality will be provided to help avoid some
types of entry errors, (e.g., if column G [death] is selected, then
disable controls for columns K [away from work] and L [on job transfer/
restriction]).
    In addition, OSHA plans to incorporate as many helper features as
possible (e.g. help text, instruction sheets, etc.) to guide users
through the data submission process. This information will be readily
accessible from the collection system. Further, OSHA plans to implement
an email/phone help line for providing quick-response user support.
    For third-party capability, if a small business, for instance,
enlists a third-party (e.g., a consultant) to act as its representative
in submitting its injury/illness information to OSHA's data collection
system, the third-party would also provide their own contact
information on the submission system as a representative of the
business.
    Finally, OSHA will phase in implementation of the data collection
system. In the first year, all establishments required to routinely
submit information under the final rule will be required to submit only
the information from the Form 300A (by July 1, 2017). In the second
year, all establishments required to routinely submit under the final
rule will be required to submit all of the required information (by
July 1, 2018). This means that, in the second year, establishments with
250 or more employees that are required to routinely submit information
under the final rule will be responsible for submitting information
from the Forms 300, 301, and 300A. In the third year, all
establishments required to routinely submit under this final rule will
be required to submit all of the required information (by March 2,
2019). This means that beginning in the third year (2019),
establishments with 250 or more employees will be responsible for
submitting information from the Forms 300, 301, and 300A, and
establishments with 20-249 employees in an industry listed in appendix
A to subpart E of part 1904 will be responsible for submitting
information from the Form 300A by March 2 each year. This will provide
sufficient time to ensure comprehensive outreach and compliance
assistance in advance of implementation.
Scope of Data Collection
    In the preamble to the proposed rule, OSHA asked, ``Should this
data collection be limited to the records required under Part 1904? Are
there other required OSHA records that could be collected and made
available to the public in order to improve workplace safety and
health?'' [78 FR 67271].
    Some commenters commented that OSHA should limit this rule to the
collection of part 1904 data while making the rule flexible enough to
allow for the collection of other information in the future. For
example, the International Brotherhood of Teamsters commented that
``[t]his rule should be limited to the 1904 data. However, OSHA should
consider making this rule flexible enough to allow it to require
reporting the other kinds of information in the future, particularly
specific records (such as employee exposure data) that are already
required by various OSHA standards. This would provide a better
measure/indication of health risks faced by workers. In addition, OSHA
may also wish to require employers to report other records currently
mandated under other existing OSHA standards, such as employer reports
of incidents investigated under the Process Safety Management (PSM)
standard. The

system should be designed to accommodate such expansions in the
future'' (Ex. 1381). Change to Win and the International Union (UAW)
provided similar comments (Exs. 1380, 1384).
    The American College of Occupational and Environmental Medicine
(ACOEM) also commented about the collection of more data in the future,
stating that ``[OSHA should] collaborate with the Bureau of Labor
Statistics and The Council for State and Territorial Epidemiologists to
publicize a broader suite of occupational health indicators, which,
taken together, would provide a better picture of the true burden of
occupational safety and health in the United States'' (Ex. 1327).
    However, the Phylmar Regulatory Roundtable (PRR) commented that
``data collection should be limited to the records required under Part
1904'' (Ex. 1110).
    OSHA agrees that the scope of the final rule should be the same as
the scope of the proposed rule and include only the records required
under part 1904. While OSHA notes some advantages for the collection of
other data, the Agency believes that it did not receive enough
information on this issue during this rulemaking to include such a
requirement in the final rule. However, OSHA is open to considering
additional data collection ideas for future rulemakings.
OSHA's Statutory Authority To Promulgate This Final Rule
    Several commenters stated that OSHA lacks the statutory authority
under the OSH Act to make raw injury and illness data available to the
general public (Exs. 0218, 0224, 0240, 1084, 1093, 1123, 1198, 1218,
1225, 1272, 1279, 1332, 1336, 1342, 1344, 1356, 1359, 1360, 1372, 1385,
1393, 1394, 1396, 1404, 1408, 1411, 1412). These commenters
acknowledged that Sections 8 and 24 of the OSH Act provide the
Secretary of Labor with authority to issue regulations requiring
employers to maintain accurate records of work-related injuries and
illnesses. However, according to these commenters, nothing in the OSH
Act authorizes OSHA to publish establishment-specific injury and
illness records outside the employer's own workplace.
    The U.S. Chamber of Commerce commented:

    A fundamental axiom of the regulatory process is that an agency
must have statutory authority for any rule which it wishes to
promulgate. See, Am Library Ass'n v. FCC, 406 F.3d 689, 708 (D.C.
Cir. 2005) . . . OSHA has stated that it has authority for this
Proposed Rule under sections 8 (c)(1), (c)(2), (g)(2) and 24 of the
. . . OSH Act . . . None of these sections, however, provide OSHA
with the statutory authority required to promulgate this Proposed
Rule.
    Each of these sections upon which OSHA relies states that the
information that OSHA is empowered to collect is for the use of the
Secretary of Labor and the Secretary of Health and Human Services .
. . Conspicuously absent from these provisions is any mention, let
alone express or implied authority, that OSHA may create an online
database meant for the public dissemination of an employer's injury
and illness records containing confidential and proprietary
information. Had Congress envisioned or intended that the Secretary
of Labor would have the authority to publish this information it
surely would have so provided. But of course, it did not and has
not. (Ex. 1396)

    The National Association of Manufacturers commented that Section
8(g)(1) of the OSH Act specifically and uniquely limits the information
OSHA may publish to information that is ```compiled and analyzed.' This
does not mean that OSHA can publish raw data from employer injury and
illness records, but rather that it can compile information, analyze
it, and then publish its analysis of the information in either summary
or detailed form'' (Ex. 1279).
    NAM also commented that while the OSH Act does explicitly give OSHA
the authority to release some information, the Act does not expressly
permit the public release of recordkeeping data:

    Section 8(c)(2) merely grants the Secretary the authority to
promulgate regulations requiring employers to maintain injury and
illness records. Nothing in this section expressly grants authority
for the public dissemination of such information. 29 U.S.C. 657(c).
    Moreover, had Congress intended to make such information
available to the public they know how to do so. In various other
sections of the OSH Act Congress explicitly granted authority
requiring that other types of records be made available to the
public. For example, section 12(g) requires the U.S. Occupational
Safety and Health Review Commission records to be made publicly
available. 29 U.S.C. 661(g). U.S. v. Doig, 950 F.2d 411, 414-15
(1991) (``Where Congress includes particular language in one section
of a statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion'') (internal citation omitted).
(Ex. 1279).

    In contrast, several commenters stated that the OSH Act does
provide OSHA with authority to issue this final rule (Exs. 1208, 1209,
1211, 1219, 1371, 1382, 1424). Specifically, OSHA received comments
from four members of Congress on this issue. A letter signed by Senator
Tom Harkin, Senator Robert Casey, Representative George Miller, and
Representative Joe Courtney stated:

    When Congress passed the OSH Act, it expressly stated that the
purpose of the law was `to assure so far as possible every working
man and woman in the Nation safe and healthful working conditions.'
29 U.S.C. 651(b). In order to effectuate this purpose, the Secretary
of Labor was given the authority to issue regulations `requiring
employers to maintain accurate records of, and to make periodic
reports on, work-related deaths, injuries and illnesses.' 29 U.S.C.
657(c)(2). Additionally, the Secretary `shall develop and maintain
an effective program of collection, compilation, and analysis of
occupational safety and health statistics.' 29 U.S.C. 673(a).
    It is clear from the plain language of the OSH Act that Congress
intended for OSHA to acquire and maintain accurate records from
employers regarding workplace injuries and illnesses for the purpose
of protecting workers' safety and health. This proposed rule not
only improves upon the current system of reporting and tracking
injuries and illnesses, it further strengthens the ability of OSHA
to live up to its statutory mandate to ensure that workers have
healthy and safe workplaces . . .
    We agree with OSHA's proposal to post reported injury and
illness data online so that employees, employers, researchers,
consumers, government agencies, and other interested parties have
easy access to that important information. This increased access to
injury and illness data will allow employers to measure themselves
against other employers' safety records so they know when they need
to make improvements. Employees will similarly have greater
knowledge about the hazards in their workplace and their employer's
previous health and safety history . . . (Ex. 1371).

    Additionally, Ashok Chandran commented, ``The proposed regulation
in no way expands the substantive information employers must provide to
OSHA. 29 CFR 1904 already requires employers to report injuries
resulting in death, loss of consciousness, days away from work,
restriction of work, transfer to another job, medical treatment other
than first aid, or diagnosis of a significant injury or illness by a
physician or other licensed health care professional. For over 40 years
now, OSHA has been collecting injury reports without incident. Thus any
challenges to the legality of this data collection must fail'' (Ex.
1393).
    OSHA believes that the OSH Act provides statutory authority for
OSHA to issue this final rule. As explained in the Legal Authority
section of this preamble, the following provisions of the OSH Act give
the Secretary of Labor broad authority to issue regulations that
address the recording and reporting of occupational injuries and
illnesses.
    Section 2(b)(12) of the Act states that one of the purposes of the
OSH Act is

to ``assure so far as possible . . . safe and healthful working
conditions . . . by providing for appropriate reporting procedures . .
. which will help achieve the objective of th[e] Act and accurately
describe the nature of the occupational safety and health problem.'' 29
U.S.C. 651(b)(12).
    Section 8(c)(1) requires each employer to ``make, keep and
preserve, and make available to the Secretary . . . such records . . .
prescribe[d] by regulation as necessary or appropriate for the
enforcement of th[e] Act or for developing information regarding the
causes and prevention of occupational accidents and illnesses.'' 29
U.S.C. 657(c)(1). The authorization to the Secretary to prescribe such
recordkeeping regulations as he considers ``necessary or appropriate''
emphasizes the breadth of the Secretary's discretion in implementing
the OSH Act. Section 8(c)(2) further provides that the ``Secretary . .
. shall prescribe regulations requiring employers to maintain accurate
records of, and to make periodic reports on, work-related deaths,
injuries and illnesses.'' 29 U.S.C. 657(c)(2).
    Section 8(g)(1) authorizes the Secretary ``to compile, analyze, and
publish, whether in summary or detailed form, all reports or
information obtained under this section.'' Section 8(g)(2) of the Act
generally 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 contains a similar grant of regulatory authority.
Section 24(a) states that ``the Secretary . . . shall develop and
maintain an effective program of collection, compilation and analysis
of occupational safety and health statistics . . . [and] shall compile
accurate statistics on work injuries and illnesses.'' 29 U.S.C. 673(a).
Section 24(e) provides that ``[o]n the basis of the records made and
kept pursuant to section 8(c) of th[e] Act, employers shall file such
reports with the Secretary as he shall prescribe by regulation, as
necessary to carry out his functions under th[e] Act.'' 29 U.S.C.
673(e).
    OSHA has made the determination that the provisions in this final
rule requiring electronic submission and publication of injury and
illness recordkeeping data are ``necessary and appropriate'' for the
enforcement of the OSH Act and for gathering information regarding the
causes or prevention of occupational accidents or illnesses. Where an
agency is authorized to prescribe regulations ``necessary'' to
implement a statutory provision or purpose, a regulation promulgated
under such authority is valid ``so long it is reasonably related to the
enabling legislation.'' Morning v. Family Publication Service, Inc.,
441 U.S. 356, 359 (1973).
    The Supreme Court recognizes a ``familiar canon of statutory
construction that remedial legislation should be construed broadly to
effectuate its purposes.'' Tcherepnin v. Knight, 389 U.S. 332, 336
(1967). And reading the statute in light of its protective purposes
further supports the Secretary's interpretation that the Act calls for
electronic submission and publication of injury and illness
recordkeeping data. See, e.g., United States v. Advance Mach. Co., 547
F.Supp. 1085 (D.Minn. 1982) (requirement in Consumer Product Safety Act
to ``immediately inform'' the government of product defects is read as
creating a continuing obligation to report because any other reading
would frustrate the statute's goal of protecting the public from
hazards). In addition, injury and illness records ``are a cornerstone
of the Act and play a crucial role in providing the information
necessary to make workplaces safer and healthier.'' Sec'y of Labor v.
Gen. Motors Corp., 8 BNA OSHC 2036, 2041 (Rev. Comm'n 1980).
    OSHA notes that not only are such recordkeeping regulations
expressly called for by the language of Sections 8 and 24, but they are
also consistent with Congressional intent and the purpose of the OSH
Act. The legislative history of the OSH Act reflects Congress' concern
about harm resulting to employees in workplaces with incomplete records
of occupational injuries and illnesses. Most notably, a report of the
Senate Committee on Labor and Public Welfare stated that ``[F]ull and
accurate information is a precondition for meaningful administration of
an occupational safety and health program.'' S. Rep. No. 91-1282, at 16
(1970), reprinted in Subcomm. on Labor of the Comm. on Labor and Public
Welfare, Legislative History of the Occupational Safety and Health Act
of 1970, at 156 (1971). Additionally, a report from the House of
Representatives shows that Congress recognized ``comprehensive [injury
and illness] reporting'' as playing a key role in ``effective safety
programs.'' H.R. Rep. No. 91-1291, at 15 (1970), reprinted in Subcomm.
on Labor of the Comm. on Labor and Public Welfare, Legislative History
of the Occupational Safety and Health Act of 1970, at 845 (1971). As
explained elsewhere in this preamble, the electronic submission and
publication requirements of the final rule will lead to more accurate
and complete occupational injury and illness records.
    OSHA further notes that, contrary to comments made by some
commenters, and as explained elsewhere in this preamble, the final rule
will not result in the publication of raw injury and illness
recordkeeping data or the release of records containing personally
identifiable information or confidential commercial and/or proprietary
information. The release or publication of submitted injury and illness
recordkeeping data will be conducted in accordance with applicable
federal law. (See discussion below).
Constitutional Issues
The First Amendment
    Some commenters stated that the proposed rule would violate the
First Amendment of the U.S. Constitution because it would force
employers to submit their confidential and proprietary information for
publication on a publicly available government online database (Exs.
1360, 1396). These commenters noted that the First Amendment protects
both the right to speak and the right to refrain from speaking.
    The U.S. Chamber of Commerce commented:

    While OSHA's stated goal of using the information it collects
from employers ``to improve workplace safety and health,'' 78 FR at
67,254, is unobjectionable, ``significant encroachments on First
Amendment rights of the sort that compelled disclosure imposes
cannot be justified by a mere showing of some legitimate
governmental interest.'' Buckley v. Valeo, 424 U.S. 1, 64 (1976)
(per curiam). Instead, where the government seeks to require
companies to engage in the type of speech proposed here, the
regulation must meet the higher standard of strict scrutiny: Meaning
that it must be narrowly tailored to promote a compelling
governmental interest. See United States v. Playboy Entm't Grp.,
Inc., 529 U.S. 803, 819 (2000).
    Once subjected to strict scrutiny, the publication provision of
this Proposed Rule must fail because it is not narrowly tailored
towards accomplishing a compelling government interest. See Playboy,
529 U.S. at 819. Under the narrow tailoring prong of this analysis,
the regulation must be necessary towards accomplishing the
government's interest. See, e.g., Republican Party of Minn. v.
White, 536 U.S. 765, 775 (2002) (``[T]o show that the [requirement]
is narrowly tailored, [the government] must demonstrate that it does
not `unnecessarily circumscrib[e] protected expression.''' (fourth
alteration in original) (quoting Brown v. Hartlage, 456 U.S. 45, 54
(1982))).

    On the other hand, Logan Gowdey commented that recordkeeping data
has been collected by OSHA in the past through the OSHA Data Initiative
(ODI).

He adds, ``Furthermore, if there were a realistic claim to be made of
First Amendment grounds, it surely would have been made against the EPA
in relation to the Toxic Release Inventory (TRI) program, where toxic
releases are published and include business names, far more `speech'
than will be required under this rule.'' (Ex. 1211).
    In response, OSHA disagrees with the Chamber's comment that this
rulemaking violates the First Amendment. OSHA notes that, contrary to
the Chamber's comment, the decision in Buckley v. Valeo only applies to
campaign contribution disclosures, and does not hold that other types
of disclosure rules are subject to the strict scrutiny standard. See,
42 U.S. 1, 64 (reasoning that campaign contribution disclosures ``can
seriously infringe on privacy of association and belief guaranteed by
the First Amendment''). Later cases also clarify that disclosure
requirements only trigger strict scrutiny ``in the electoral context.''
See, John Doe No. 1 v. Reed, 561 U.S. 186, 196 (2010).
    In Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 653
(1985), the Supreme Court upheld Ohio state rules requiring disclosures
in attorney advertising relating to client liability for court costs.
The Court declined to apply the more rigorous strict scrutiny standard,
because the government was not attempting to ``prescribe what shall be
orthodox in politics, nationalism, religion, or other matters of
opinion or force citizens to confess by word or act their faith
therein.'' 471 U.S. 626, 651. Because it concluded the disclosure at
issue would convey ``purely factual and uncontroversial information,''
the rule only needed to be ``reasonably related to the State's interest
in preventing deception of consumers.'' Id. Recently, in American Meat
Institute v. U.S. Dept. of Agriculture, the U.S. Court of Appeals for
the DC Circuit held that the Zauderer case's ``reasonably related''
test is not limited to rules aimed at preventing consumer deception,
and applies to other disclosure rules dealing with ``purely factual and
uncontroversial information.'' 760 F.3d 18, 22 (D.C. Cir. 2014)
(finding that the speakers' interest in non-disclosure of such
information is ``minimal''); see also NY State Restaurant Ass'n v. NYC
Bd. Of Health, 556 F.3d 114, 133 (2d Cir. 2009) (accord),
Pharmaceutical Care Mgmt. Ass'n v. Rowe, 429 F.3d 294, 310 (1st Cir.
2005) (accord).
    This final rule only requires disclosure of purely factual and
uncontroversial workplace injury and illness records that are already
kept by employers. The rule does not violate the First Amendment
because disclosure of workplace injury and illness records is
reasonably related to the government's interest in assuring ``so far as
possible every working man and woman in the Nation safe and healthful
working conditions.'' 29 U.S.C. 651(b). The remainder of the Chamber's
comment deals with ``essential rights'' that do not encompass an
employer's minimal interest in non-disclosure of purely factual and
uncontroversial information.
The Fourth Amendment
    The U.S. Chamber of Commerce commented that, while OSHA addressed
some issues related to the Fourth Amendment to the U.S. Constitution in
the preamble to the proposed rule, the Agency neglected to consider
other issues. Specifically, the Chamber stated that:

    The Notice for this Proposed Rule cites several cases that OSHA
asserts confirm that the requirement to report injury and illness
records comports with the Fourth Amendment's prohibition against
unreasonable searches and seizures. 78 FR at 67,255-56. In making
this preemptive defense, however, OSHA has neglected to address the
more pressing Fourth Amendment problem with this Proposed Rule: That
OSHA's use of the information collected for enforcement purposes
will fail to constitute a ``neutral administrative scheme'' and will
thus violate the Supreme Court's holding in Marshall v. Barlow's
Inc., 436 U.S. 307 (1978).

    Additionally, the Chamber stated that the raw data to be collected
under the proposed rule would fail to provide any defensible neutral
predicate for enforcement decisions: ``Under this Proposed Rule, OSHA
will be able to target any employer that submits a reportable injury or
illness for any reason the agency chooses, or for no reason at all,
under this unlimited discretion it has sought to grant itself to
`identify workplaces where workers are at great risk' '' See, 78 FR
67,256.'' (Ex. 1396).
    In response, OSHA notes that Barlow's concerned the question of
whether OSHA must have a warrant to inspect a worksite if the employer
does not give consent. Section 1904.41 of this final rule involves
electronic submission of injury and illness recordkeeping data; no
entry of premises or compliance officer decision-making is involved.
Thus, the Barlow's decision provides very little support for the
commenter's sweeping Fourth Amendment objections. See, Donovan v. Lone
Steer, Inc., 464 U.S. 408, 414 (1984) (reasonableness of a subpoena is
not to be determined on the basis of physical entry law, because
subpoena requests for information involve no entry into nonpublic
areas).
    Moreover, the final rule is limited in scope and leaves OSHA with
limited discretion. The recordkeeping information required to be
submitted is highly relevant to accomplishing OSHA's mission. The
submission of recordkeeping data is accomplished through remote
electronic transmittal, without any intrusion of the employer's
premises by OSHA, and is not unduly burdensome. Also, all of the injury
and illness information required to be submitted is taken from records
employers are already required to create, maintain, post, and provide
to employees, employee representatives, and government officials upon
request, which means the employer has a reduced expectation of privacy
in the information.
    With respect to the issue of enforcement, OSHA disagrees with the
Chamber's Fourth Amendment objection that the Agency will target
employers ``for any reason'' simply because they submit injury and
illness data. Instead, OSHA plans to continue the practice of using a
neutral-based scheme for identifying industries for closer inspection.
More specifically, the Agency will use the data submitted by employers
under this final rule in the same manner OSHA has used data from the
ODI over the last 15 years. In the past, OSHA's Site-Specific Targeting
(SST) program and Nursing Home and Recordkeeping National Emphasis
Programs (NEPs) all used establishment-specific injury and illness
rates as selection criteria for inspection. In the future, OSHA plans
to analyze the recordkeeping data submitted by employers to identify
injury and illness trends and make appropriate decisions regarding
enforcement efforts.
    OSHA also notes that the Agency currently uses establishment-
specific fatality, injury, and illness reports submitted by employers
under Section 1904.39 to target enforcement and compliance assistance
resources. As with the SST and NEP programs, a neutral-based scheme is
used to identify which establishments are inspected and which fall
under a compliance assistance program. Accordingly, OSHA's targeting of
employers for inspection will not be arbitrary or unconstitutional
under the Fourth Amendment.
Due Process
    Two commenters raised concerns about the proposed rule potentially
violating an employer's due process protection under the Fifth
Amendment of the U.S. Constitution. (Exs. 0245, 1360). Andrew Sutton
commented ``There is the possibility of a substantial

due process claim lurking here. It is long settled law that ``where a
person's good name, reputation, honor, or integrity is at stake because
of what the government is doing to him, notice and an opportunity to be
heard are essential. Wisconsin v. Constantineau, 400 U.S. 433, 437
(1971). But whether the same due process protections are warranted when
government action threatens a business' goodwill is less clear'' (Ex.
0245).
    The International Warehouse Logistics Association commented that
the proposed rule would deny their members the right to due process:

    Citations will no doubt be issued under this standard for
failures to report arguably work related injuries and illnesses
accurately. Since the data reported will be published by OSHA, there
will be a presumption of guilt attached to those injury reports. The
proposed rulemaking acknowledges that this reporting may result in
prospective employees and customers shunning businesses who report
injuries and illnesses, so clearly the Department contemplates that
the reported injuries create a presumption of guilt. Therefore, in
every case where the employer is faced with an injury or illness
that is not clearly recordable--and that is often the case--OSHA
will violate an employer's right to due process under the Fifth
Amendment of the United States Constitution. This violation of
employer due process rights will result from the mandatory recording
of injuries and illnesses within six days of their occurrence and
their subsequent mandatory electronic reporting. The employer will
be subjected to citation for failing to report questionable alleged
injuries and illnesses, on the one hand, and will face the prospect
of losing customers by reporting, on the other. Given the prospect
of the reported injury and illness data being published by OSHA, the
proposed rule does not provide a reasonable time frame for the
employer to conduct an adequate evaluation of its legal obligations
and exposures with respect to each case. And, in each such case, it
will be faced with the catch-22 of either losing customers or
employees or facing civil penalties. This evaluation and decision
will have to be made four times per year and will be particularly
onerous in the case of injuries and illnesses that occur in the
third month of each quarter (Ex. 1360).

    In response, OSHA disagrees with commenters who suggested that this
rulemaking will violate an employer's right to due process under the
Fifth Amendment. The due process clause of the Fifth Amendment provides
that no person shall be ``deprived of life, liberty, or property,
without due process of law.'' The case cited above by the commenter,
Wisconsin v. Constantineau, involved the posting of notices in liquor
stores forbidding the sale of liquor to designated individuals for one
year. A state statute provided for the posting, without notice or
hearing, of the names of individuals who had exhibited specified
traits, such as becoming ``dangerous to the peace of the community,''
after consuming excessive amounts of alcohol. The Supreme Court held
that because the posting of such information would result in harm to an
individual's reputation, procedural due process requires notice and an
opportunity to be heard. 400 U.S. 433 at 436-437.
    In this circumstance, however, OSHA disagrees that the mere posting
of injury and illness recordkeeping data on a publicly available Web
site will adversely impact an employer's reputation. As the Note to
Sec.  1904.0 of OSHA's recordkeeping regulation makes clear, the
recording or reporting of a work-related injury, illness, or fatality
does not mean that an employer or employee was at fault, that an OSHA
rule has been violated, or that the employee is eligible for workers'
compensation or other benefits. OSHA currently publishes establishment-
specific information on its Web site about reported work-related
fatalities and hospitalizations. [http://www.osha.gov/dep/fatcat/dep_fatcat.html]; establishment-specific injury and illness rates
calculated from the ODI [http://www.osha.gov/pls/odi/establishment_search.html]; and OSHA routinely publishes information
about citations issued to employers for violations of OSHA standards
and regulations. [http://www.osha.gov/oshstats/index.html]. Also, other
agencies post establishment-specific health and safety data. For
example, the Mine Safety and Health Administration (MSHA) publishes
coded information about each accident, injury or illness reported to
MSHA. The Federal Railroad Administration (FRA) posts headquarters-
level Accident Investigation Reports filed by railroad carriers. OSHA
also notes that employers have been given notice and an opportunity to
comment through this rulemaking process.
    With respect to the issue of whether employers have adequate time
to record and report injuries and illnesses, Sec.  1904.29(b)(3) of
OSHA's recordkeeping regulation provides that employers must enter each
recordable injury or illness on the OSHA 300 Log and 301 Incident
Report within seven (7) calendar days of receiving information that a
recordable injury or illness has occurred. In the vast majority of
cases, employers know immediately or within a short time that a
recordable case has occurred. In a few cases, however, it may be
several days before the employer is informed that an employee's injury
or illness meets one or more of the recording criteria. This regulation
also allows employers to revise an entry simply by lining it out or
amending it if further information justifying the revision becomes
available. Accordingly, OSHA believes that the existing seven-calendar-
day requirement provides employers with sufficient time to receive
information and record a case. OSHA has resources, including
information on its Web site at www.osha.gov/recordkeeping designed to
assist employers in the accurate recording of injuries and illnesses.
    Additionally, as explained elsewhere in this document, unlike the
proposed rule, the final rule does not require employers to submit
their injury and illness data to OSHA on a quarterly basis. The final
rule's requirement for the electronic submission of recordkeeping data
on an annual basis should reduce the burden on all employers when they
make decisions on whether to record certain cases.
Administrative Issues
Public Meeting
    A few commenters disagreed with OSHA's decision to hold an informal
public meeting for this rulemaking. (Exs. 1332, 1396). Instead, these
commenters recommended that, considering both the burden on employers
and the far-reaching implications of publishing confidential
information, OSHA should have held a formal public hearing pursuant to
the Administrative Procedure Act (APA).
    OSHA disagrees with these comments. The recordkeeping requirements
promulgated under the OSH Act are regulations, not standards.
Therefore, this rulemaking is governed by the notice and comment
requirements in the APA (5 U.S.C. 553) rather than Section 6 of the OSH
Act (29 U.S.C. 655) and 29 CFR part 1911. Section 6(b)(3) of the OSH
Act (29 U.S.C. 655(b)(3)) and 29 CFR 1911.11, both of which state the
requirement for OSHA to hold a public hearing on proposed rules, only
apply to promulgating, modifying or revoking occupational safety and
health ``standards.''
    Section 553 of the APA, which governs this rulemaking, does not
require a public hearing; instead, it states that the agency must
``give interested persons an opportunity to participate in the
rulemaking through submission of written data, views, or arguments with
or without opportunity for oral presentation'' (5 U.S.C. 553(c)). As
discussed elsewhere in this document, OSHA held a public meeting

for this rulemaking on January 9 and 10, 2014. OSHA believes that
interested parties had a full and fair opportunity to participate in
the rulemaking and comment on the proposed rule. OSHA also believes
that the written comments submitted during this rulemaking, as well as
the information obtained during the public meeting, greatly assisted
the Agency in developing the final rule.
Advisory Committee on Construction Safety and Health (ACCSH)
    The National Association of Home Builders commented that OSHA must
seek input from the Advisory Committee on Construction Safety and
Health (ACCSH) during this rulemaking: ``NAHB strongly urges OSHA to
seek input from ACCSH to better understand the impacts and consequences
of its proposal'' (Ex. 1408).
    In response, and as pointed out by NAHB in their comments, ACCSH is
a continuing advisory body established under Section 3704, paragraph
(d), of the Contract Work Hours and Safety Standards Act (40 U.S.C.
3701 et seq., commonly known as the Construction Safety Act), to advise
the Secretary of Labor and Assistant Secretary for Occupational Safety
and Health in the formulation of construction safety and health
standards, and policy matters affecting federally financed or assisted
construction. In addition, OSHA's regulation at 29 CFR 1912.3 provides
that OSHA must consult with ACCSH regarding the setting of new
construction standards under the OSH Act.
    OSHA notes that both the Construction Safety Act and 29 CFR 1912.3
only require OSHA to consult with ACCSH regarding the setting of new
construction ``standards.'' As discussed above, the requirements in 29
CFR part 1904 are regulations, not standards. In addition, and as
discussed elsewhere in this preamble, OSHA did consult and received
advice from NACOSH prior to issuing the proposed rule. NACOSH has
indicated its support for OSHA's efforts in consultation with NIOSH to
modernize the system for collection of injury and illness data to
assure that the data are timely, complete, and accurate, as well as
accessible and useful to employees, employers, responsible government
agencies and members of the public.
Open Government Initiative
    In the preamble to the proposed rule, OSHA stated that OSHA plans
to post the injury and illness data online, as encouraged by President
Obama's Open Government Initiative. See, 78 FR 67258. The Initiative
includes executive orders, action plans, memoranda, etc., which
espouses enhanced principles of open government, transparency and
greater access to information.
    Two commenters stated that the Open Government Initiative does not
support publication of private establishment records (Exs. 1328, 1411).
The National Retail Federation (NRF) commented, ``OSHA has
inappropriately relied on President Obama's `Open Government'
initiative to support public disclosure of injury and illness records.
The Administration's intention and purpose in issuing the Open
Government initiative is to foster transparency in government actions.
The Obama `Open Government' initiative relates in no way to industry
data collected by an agency. Accordingly, the NRF is disappointed that
OSHA is attempting to rely on this initiative as justification for its
proposal to make private employer information generally available to
the public'' (Ex. 1328). The Coalition for Workplace Safety (CWS)
provided a similar comment (Ex. 1411).
    In response, OSHA notes that in the Memorandum on Transparency and
Open Government, issued on January 21, 2009, President Obama instructed
the Director of OMB to issue an Open Government Directive. On December
8, 2009, OMB issued a Memorandum for the Heads of Executive Departments
and Agencies, Open Government Directive, which requires federal
agencies to take steps to ``expand access to information by making it
available online in open formats.'' The Directive also states that the
``presumption shall be in favor of openness (to the extent permitted by
law and subject to valid privacy, confidentiality, security, or other
restrictions).'' In addition, the Directive states that ``agencies
should proactively use modern technology to disseminate useful
information, rather than waiting for specific requests under FOIA.''
    As noted elsewhere in this document, publication of recordkeeping
data, subject to applicable privacy and confidentiality laws, will help
disseminate information about occupational injuries and illnesses.
Access to the data will help employers, employees, employee
representatives, and researchers better identify and abate workplace
hazards. Accordingly, OSHA believes that publication of injury and
illness data on OSHA's Web site is consistent with President Obama's
Open Government Initiative.
Privacy and Safeguarding Information
Freedom of Information Act
    OSHA received several comments regarding the Freedom of Information
Act (FOIA) 5 U.S.C. 552. (Exs. 1207, 1214, 1279, 1382, 1396). Some of
these commenters claimed that the proposed rule was ``arbitrary'' and
``capricious'' under the Administrative Procedures Act (APA), 5 U.S.C.
706(2)(A), because OSHA has taken a different position during FOIA
litigation. The U.S. Chamber of Commerce commented, ``On numerous
occasions, OSHA has asserted that the very information that it now
seeks to publish on the internet should not be made public because it
includes confidential and proprietary business information. See, e.g.,
New York Times Co. v. U.S. Dep't of Labor, 340 F. Supp. 2d 394
(S.D.N.Y. 2004); OSHA Data/CIH, Inc. v. U.S. Dep't of Labor, 220 F.3d
153 (3d Cir. 2000). Indeed, as recently as 2004, Miriam McD. Miller,
OSHA's Co-Counsel for Administrative Law, stated in a sworn declaration
that the information contained in what now constitutes OSHA's Forms
300, 300A, and 301 ``is potentially confidential commercial information
because it corresponds with business productivity.''Decl. of Miriam
McD. Miller ] 5, New York Times Co. v. U.S. Dep't of Labor, 340 F.
Supp. 2d 394 (S.D.N.Y. 2004) (No. 03 Civ. 8334), ECF No. 16 (attached
as Exhibit A).''
    The Chamber went on to comment, ``OSHA and the Chamber's position
are, or at least were, the same: Total hours worked at individual
establishments is confidential and proprietary information. See New
York Times Co., 340 F. Supp. 2d at 402. Indeed, in the New York Times
Co. case, OSHA asserted that this number was not only confidential
information, but had the capacity to ``cause substantial competitive
injury.'' Id. (citing Dep't of Labor Mem. of Law, Ex. B at 17). This is
because, as OSHA itself argued, the total hours worked by a company's
employees ``corresponds with business productivity,'' Dep't of Labor
Mem. of Law, Ex. B at 4, and could be used ``to calculate a
business['s] costs and profit margins,'' id. at 17 (citing Westinghouse
Elec. Corp. v. Schlesinger, 392 F. Supp. 1264, 1249 (E.D. Va. 1976),
aff'd, 542 F.2d 1190 (4th Cir. 1976)). The confidentiality problems
relating to hours worked are only exacerbated in this Proposed Rule by
OSHA's insistence on collecting and publishing this information on an
establishment-by-establishment basis, including the number of employees
at each establishment. Armed with total hours worked plus an
establishment's employee count, a business' overall capacity and
productivity can easily be determined'' (Ex. 1396).
    NAM commented, ``Under the Freedom of Information Act (FOIA),

certain documents are exempt from public disclosure. 5 U.S.C. 552.
Exemption 4 protects `a trade secret or privileged or confidential
commercial or financial information obtained from a person.' 5 U.S.C.
552(b)(4). The NAM and its members believe employee hours worked on the
OSHA Form 300A is confidential business information, because that
information gives insight into the state of a business at any given
time and creates a competitive harm. As such, this information is
entitled to protection from disclosure to the public under FOIA, which
would be consistent with how OSHA has historically treated employee
hours worked'' (Ex. 1279). The American Petroleum Institute (API) made
a comment similar to NAM (Ex. 1214).
    In response, OSHA notes that, as discussed in the preamble to the
proposed rule, the information required to be submitted by employers
under this final rule is not of a kind that would include confidential
commercial information. The Secretary carefully considered the issues
addressed in the New York Times case, and concluded that the
information on the OSHA recordkeeping forms, including the number of
employees and hours worked at an establishment, is not confidential
commercial information. See, 78 FR 67263. The decision in New York
Times, along with the decision in OSHA Data, was based on the
requirements in OSHA's previous recordkeeping regulation. Prior to
2001, employers were not required to record the total number of hours
worked by all employees on the OSHA forms.
    Many employers already routinely disclose information about the
number of employees at an establishment. Since 2001, OSHA's
recordkeeping regulation has required employers to record information
about the average annual number of employees and total number of hours
worked by all employees on the OSHA Form 300A. Section 1904.35 also
requires employers to disclose to employees, former employees, and
employee representatives non-redacted copies of the OSHA Form 300A. In
addition, Sec.  1904.32(a)(4) requires employers to publicly disclose
information about the number of employees and total number of hours
worked through the annual posting of the 300A in the workplace for
three months from February 1 to April 30.
    In the New York Times decision, the court concluded that basic
injury and illness recordkeeping data regarding the average number of
employees and total number of hours worked does not involve