[Federal Register Volume 83, Number 146 (Monday, July 30, 2018)]
[Proposed Rules]
[Pages 36494-36507]
[FR Doc No: 2018-16059]

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1904

[Docket No. OSHA-2013-0023]
RIN 1218-AD17

Tracking of Workplace Injuries and Illnesses

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would amend OSHA's recordkeeping regulation
by rescinding the requirement for establishments with 250 or more
employees to electronically submit information from OSHA Forms 300 and
301. These establishments will continue to be required to submit
information from their Form 300A summaries. OSHA is amending its
recordkeeping regulations to protect sensitive worker information from
potential disclosure under the Freedom of Information Act (FOIA). OSHA
has preliminarily determined that the risk of disclosure of this
information, the costs to OSHA of collecting and using the information,
and the reporting burden on employers are unjustified given the
uncertain benefits of collecting the information. OSHA believes that
this proposal maintains safety and health protections for workers while
also reducing the burden to employers of complying with the current
rule. OSHA seeks comment on this proposal, particularly on its impact
on worker privacy, including the risks posed by exposing workers'
sensitive information to possible FOIA disclosure. In addition, OSHA is
proposing to require covered employers to submit their Employer
Identification Number (EIN) electronically along with their injury and
illness data submission.

DATES: Comments must be submitted by September 28, 2018.

ADDRESSES: You may submit comments, identified by docket number OSHA-
2013-0023, or regulatory information number (RIN) 1218-AD17, by any of
the following methods:
    Electronically: You may submit comments electronically at https://www.regulations.gov/, which is the federal e-rulemaking portal. Follow
the instructions on the website for making electronic submissions;
    Fax: If your submission, including attachments, does not exceed 10
pages, you may fax it to the OSHA docket office at<PHONE_NUMBER>;
    Regular mail, express mail, hand delivery, or messenger/courier
service (hard copy): You may submit your materials to the OSHA Docket
Office, Docket No. OSHA-2013-0023, Room N-3653, U.S. Department of
Labor, 200 Constitution Avenue NW, Washington, DC 20210; telephone:
(202) 693-2350 (TTY<PHONE_NUMBER>). OSHA's Docket Office accepts
deliveries (hand deliveries, express mail, and messenger/courier
service) from 10 a.m. to 3 p.m. ET, weekdays.
    Instructions for submitting comments: All submissions must include
the docket number (Docket No. OSHA-2013-0023) or the RIN (RIN 1218-
AD17) for this rulemaking. Because of security-related procedures,
submission by regular mail may result in significant delay. Please
contact the OSHA docket office (telephone:<PHONE_NUMBER>; email:
[email protected]) for

information about security procedures for making submissions by hand
delivery, express delivery, and messenger or courier service.
    All comments, including any personal information you provide, are
placed in the public docket without change and will be made available
online at https://www.regulations.gov. Therefore, OSHA cautions you
about submitting personal information such as Social Security Numbers
and birthdates.
    Docket: To read or download submissions in response to this Federal
Register document, go to docket number OSHA-2013-0023, at https://www.regulations.gov. All submissions are listed in the https://www.regulations.gov index. However, some information (e.g., copyrighted
material) is not publicly available to read or download through that
website. All submissions, including copyrighted material, are available
for inspection at the OSHA docket office.
    Electronic copies of this Federal Register document are available
at https://www.regulations.gov. This document, as well as news releases
and other relevant information, is available at OSHA's website at
http://www.osha.gov.

FOR FURTHER INFORMATION CONTACT:
    For press inquiries: Frank Meilinger, OSHA Office of
Communications, telephone:<PHONE_NUMBER>; email:
[email protected].
    For general and technical information on the proposed rule: Amanda
Edens, Director, Directorate of Technical Support and Emergency
Management, telephone:<PHONE_NUMBER>; email: [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
    A. Introduction
    B. Regulatory History
II. Legal Authority
III. Summary and Explanation of the Proposed Rule
    A. Description of Proposed Revisions to Section 1904.41
    1. Section 1904.41(a)(1)--Annual Electronic Submission of OSHA
Part 1904 Records by Establishments With 250 or More Employees
    2. Section 1904.41, Paragraphs (b)(1)-(8)--Implementation
    3. Employer Identification Number
    B. Additional Questions
IV. Preliminary Economic Analysis and Regulatory Flexibility
Certification
    A. Introduction
    B. Cost Savings
    C. New Costs (From the EIN Collection)
    D. Net Cost Savings
    E. Benefits
    F. Economic Feasibility
    G. Regulatory Flexibility Certification
V. Office of Management and Budget (OMB) Review Under the Paperwork
Reduction Act of 1995
VI. Unfunded Mandates
VII. Federalism
VIII. State Plan States
IX. Public Participation
    A. Public Submissions
    B. Access to Docket
Amendments to Part 1904

References and Exhibits

    In this preamble, OSHA references documents in Docket No. OSHA-
2013-0023, the docket for this rulemaking. The docket is available at
https://www.regulations.gov, the Federal e-rulemaking Portal.
    References to documents in this rulemaking docket are given as
``Ex.'' followed by the document number. The document number is the
last sequence of numbers in the Document ID Number on https://www.regulations.gov.
    The exhibits in the docket, including public comments, supporting
materials, meeting transcripts, and other documents, are listed on
https://www.regulations.gov. All exhibits are listed in the docket
index on https://www.regulations.gov. However, some exhibits (e.g.,
copyrighted material) are not available to read or download from that
web page. All materials in the docket are available for inspection at
the OSHA Docket Office, Room N-3653, U.S. Department of Labor, 200
Constitution Avenue NW, Washington, DC 20210; telephone<PHONE_NUMBER>.

I. Background

A. Introduction

    OSHA's regulation at 29 CFR part 1904 requires employers to collect
a variety of information on occupational injuries and illnesses. Much
of this information may be sensitive for workers, including
descriptions of their injuries and the body parts affected. Under
OSHA's regulation, employers with more than 10 employees in most
industries must keep those records at their establishments. Employers
covered by these rules must record each recordable employee injury and
illness on an OSHA Form 300, the ``Log of Work-Related Injuries and
Illnesses,'' or equivalent. Covered employers must also prepare a
supplementary OSHA Form 301, the ``Injury and Illness Incident Report''
or equivalent, to provide additional details about each case recorded
on the OSHA Form 300. OSHA requires employers to provide these records
to others under certain circumstances, but imposes limits on the
disclosure of personally identifying information.\1\ Finally, at the
end of each year, these employers are required to prepare a summary
report of all injuries and illnesses on the OSHA Form 300A, the
``Summary of Work-Related Injuries and Illnesses,'' and post the form
in a visible location in the workplace.
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    \1\ OSHA's regulation at 29 CFR 1904.35(b)(2) requires employers
to provide employees, former employees, their personal
representatives, and their authorized employee representatives
access to the OSHA Form 300. Employers must include the names of the
employees with recorded cases, except for certain ``privacy concern
cases'' as specified in 29 CFR 1904.29(b)(6)-(9). In addition,
OSHA's regulation at 29 CFR 1904.29(b)(10) requires employees to
remove or hide employee names and other personally identifying
information when voluntarily disclosing the Form 300 or 301 to
persons other than government representatives, employees, former
employees or authorized representatives, except when disclosing the
forms to an auditor or consultant hired by the employer to evaluate
the safety and health program, or to the extent necessary for
processing a claim for workers' compensation or other insurance
benefits, or to a public health authority or law enforcement agency
per 45 CFR 164.512. Finally, for the Form 301, OSHA's regulation at
29 CFR 1904.35(b)(2)(v) requires employers to provide an employee,
former employee, or the employee's personal representative access to
the Form 301 Incident Report describing an injury or illness to that
employee or former employee; for authorized employee
representatives, employers are required to provide the information
in ``tell us about the case'' for any incident report and to remove
all of the other information.
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    Form 301 in particular requires the collection of much sensitive
information about each individual worker's job-linked illness or
injury, information an employer must collect with or without the
worker's consent. While some of the information is likelier to be
regarded as particularly sensitive--namely, descriptions of injuries
and the body parts affected--most of the form's questions seek answers
that should not be lightly disclosed, including:
     Was employee treated in an emergency room?
     Was employee hospitalized overnight as an in-patient?
     Date of birth.
     Date of injury.
     What was the employee doing just before the incident
occurred? Describe the activity, as well as the tools, equipment, or
material the employee was using. Be specific. Examples: ``climbing a
ladder while carrying roofing materials''; ``spraying chlorine from
hand sprayer''; ``daily computer key-entry.''
     What happened? Tell us how the injury occurred. Examples:
``When ladder slipped on wet floor, worker fell 20 feet''; ``Worker was
sprayed with chlorine when gasket broke during replacement''; ``Worker
developed soreness in wrist over time.''
     What was the injury or illness? Tell us the part of the
body that was affected

and how it was affected; be more specific than ``hurt,'' ``pain,'' or
``sore.'' Examples: ``strained back''; ``chemical burn, hand'';
``carpal tunnel syndrome.''
     What object or substance directly harmed the employee?
Examples: ``concrete floor''; ``chlorine''; ``radial arm saw . . . ''
    Form 300 requires employers to log much of this individual
information--notably, descriptions of injuries and the body parts
affected--for each individual worker and incident. Form 300A, by
contrast, merely summarizes incident data without any traceable
connection to individual workers.
    In the May 2016 final rule (81 FR 29624), the recordkeeping
regulation was revised to require establishments with 250 or more
employees to electronically submit information from the OSHA Forms 300,
300A, and 301 to OSHA annually. Establishments in certain industries
with 20-249 employees are required only to electronically submit
information from only the OSHA Form 300A--the summary form. This
proposed rule would amend OSHA's recordkeeping regulation by rescinding
the requirement for establishments with 250 or more employees to
electronically submit information from the OSHA Forms 300 and 301--the
individual forms.
    As discussed below, OSHA proposes this amendment to the 2016 rule
to protect worker privacy, having re-evaluated the utility of routinely
collecting Form 300 and 301 data. The injury and illness data
electronically submitted to OSHA from Form 300A (which submission the
2016 rule requires, and which this proposal would not change) gives
OSHA a great deal of information to use in identifying high-hazard
establishments for enforcement targeting. To that end, OSHA has
designed a targeted enforcement mechanism for industries experiencing
higher rates of injuries and illnesses based on the summary data. By
contrast, OSHA has provisionally determined that electronic submission
of Forms 300 and 301 adds uncertain enforcement benefits, while
significantly increasing the risk to worker privacy, considering that
those forms, if collected by OSHA, could be found disclosable under
FOIA. In addition, to gain (uncertain) enforcement value from the case-
specific data, OSHA would need to divert resources from other
priorities, such as the utilization of Form 300A data, which OSHA's
experience has shown to be useful.
    OSHA seeks comment on this proposal. In addition, OSHA asks for
public comment on whether to require covered employers to submit their
EIN along with their injury and illness data submission.
    This proposed rule is expected to be an E.O. 13771 deregulatory
action, with annualized net cost savings estimated at $8.2 million.
Details on OSHA's cost and cost savings estimates for this proposed
rule can be found in the Preliminary Economic Analysis (PEA).
    Under the current recordkeeping rule, the initial deadline for
electronic submission of information from OSHA Forms 300 and 301 by
covered establishments with 250 or more employees was July 1, 2018.
However, OSHA will not enforce this deadline without further notice
while this rulemaking is underway.

B. Regulatory History

    OSHA's regulations on recording and reporting occupational injuries
and illnesses (29 CFR part 1904) were first issued in 1971 (36 FR
12612, July 2, 1971). These regulations require the recording of work-
related injuries and illnesses that involve death, loss of
consciousness, days away from work, restriction of work, transfer to
another job, medical treatment other than first aid, or diagnosis of a
significant injury or illness by a physician or other licensed health
care professional (29 CFR 1904.7).
    On July 29, 1977, OSHA amended these regulations to partially
exempt businesses having ten or fewer employees during the previous
calendar year from the requirement to record occupational injuries and
illnesses (42 FR 38568). On December 28, 1982, OSHA amended these
regulations to partially exempt establishments in certain lower-hazard
industries from the requirement to record occupational injuries and
illnesses (47 FR 57699). OSHA also amended the recordkeeping
regulations in 1994 (Reporting of Fatality or Multiple Hospitalization
Incidents, 59 FR 15594) and 1997 (Reporting Occupational Injury and
Illness Data to OSHA, 62 FR 6434). Under the authority in Section
1904.41 added by the 1997 final rule, OSHA began requiring certain
employers to submit only their 300A data to OSHA annually through the
OSHA Data Initiative (ODI). The purpose of the ODI was to collect data
on injuries and acute illnesses attributable to work-related activities
in the private sector from approximately 80,000 establishments in
selected high-hazard industries. The Agency used these data to
calculate establishment-specific injury and illness rates and, in
combination with other data sources, to target enforcement and
compliance assistance activities.
    On January 19, 2001, OSHA issued a final rule amending its
requirements for the recording and reporting of occupational injuries
and illnesses (29 CFR parts 1904 and 1902), along with the forms
employers use to record those injuries and illnesses (66 FR 5916). The
final rule also updated the list of industries that were partially
exempt from recording occupational injuries and illnesses.
    On September 18, 2014, OSHA again amended the regulations to
require employers to report work-related fatalities and severe
injuries--in-patient hospitalizations, amputations, and losses of an
eye--to OSHA and to allow electronic reporting of these events (79 FR
56130). The final rule also revised the list of industries that are
partially exempt from recording occupational injuries and illnesses.
    On May 12, 2016, OSHA amended the regulations on recording and
reporting occupational injuries and illness to require employers to
annually submit injury and illness information that employers were
already required to keep under part 1904 (81 FR 29624) to OSHA
electronically. Establishments with 250 or more employees in industries
that are routinely required to keep records are required to
electronically submit information from their OSHA Forms 300, 300A, and
301 to OSHA or OSHA's designee once a year, and establishments with 20
to 249 employees in certain designated industries are required to
electronically submit information from their OSHA annual summary (Form
300A) to OSHA or OSHA's designee once a year. In addition, that final
rule requires employers, upon notification, to electronically submit
information from part 1904 recordkeeping forms to OSHA or OSHA's
designee. These provisions became effective on January 1, 2017.
    On November 24, 2017, OSHA amended the recordkeeping regulation to
extend the initial submission deadline for 2016 Form 300A data
described in 29 CFR 1904.41(c)(1) from July 1, 2017, to December 15,
2017 (82 FR 55761).

II. Legal Authority

    OSHA is issuing this proposed rule pursuant to authority expressly
granted by sections 8 and 24 of the Occupational Safety and Health Act
(the ``OSH Act'' or ``Act'') (29 U.S.C. 657, 673). Section 8(c)(1) of
the Act requires each employer to ``make, keep and preserve, and make
available to the Secretary [of Labor] or the Secretary of Health and
Human Services, such records regarding his activities relating to this
Act as the Secretary . . . may prescribe by

regulation as necessary or appropriate for the enforcement of this Act
or for developing information regarding the causes and prevention of
occupational accidents and illnesses'' (29 U.S.C. 657(c)(1)). Section
8(c)(2) directs the Secretary to prescribe regulations ``requiring
employers to maintain accurate records of, and to make periodic reports
on, work-related deaths, injuries and illnesses other than minor
injuries requiring only first aid treatment and which do not involve
medical treatment, loss of consciousness, restriction of work or
motion, or transfer to another job'' (29 U.S.C. 657(c)(2)). Finally,
section 8(g)(2) of the OSH Act broadly empowers the Secretary to
``prescribe such rules and regulations as he may deem necessary to
carry out [his] responsibilities under this Act'' (29 U.S.C.
657(g)(2)).
    Section 24 of the OSH Act (29 U.S.C. 673) contains a similar grant
of authority. This section requires the Secretary to ``develop and
maintain an effective program of collection, compilation, and analysis
of occupational safety and health statistics'' and ``compile accurate
statistics on work injuries and illnesses which shall include all
disabling, serious, or significant injuries and illnesses'' (29 U.S.C.
673(a)). Section 24 also requires employers to ``file such reports with
the Secretary as he shall prescribe by regulation'' (29 U.S.C. 673(e)).
These reports are to be based on ``the records made and kept pursuant
to section 8(c) of this Act'' (29 U.S.C. 673(e)).
    Further support for the Secretary's authority to require employers
to keep and submit records of work-related illnesses and injuries can
be found in the Congressional Findings and Purpose at the beginning of
the OSH Act (29 U.S.C. 651). In this section, Congress declares the
overarching purpose of the Act is ``to assure so far as possible every
working man and woman in the Nation safe and healthful working
conditions'' (29 U.S.C. 651(b)). One of the ways in which the Act is
meant to achieve this goal is ``by providing for appropriate reporting
procedures . . . [that] will help achieve the objectives of this Act
and accurately describe the nature of the occupational safety and
health problem'' (29 U.S.C. 651(b)(12)). Importantly, the statute does
not require this information to be reported to OSHA.
    The OSH Act authorizes the Secretary of Labor to issue two types of
occupational safety and health rules: Standards and regulations.
Standards aim to correct particular identified workplace hazards, while
regulations further the general enforcement and detection purposes of
the OSH Act (see Workplace Health & Safety Council v. Reich, 56 F.3d
1465, 1468 (D.C. Cir. 1995) (citing Louisiana Chemical Ass'n v.
Bingham, 657 F.2d 777, 781-82 (5th Cir. 1981)); United Steelworkers of
America v. Auchter, 763 F.2d 728, 735 (3d Cir. 1985)). Recordkeeping
requirements promulgated under the Act are characterized as regulations
(see 29 U.S.C. 657 (using the term ``regulations'' to describe
recordkeeping requirements)). An agency may revise a prior rule if it
provides a reasoned explanation for the change. See Motor Vehicle Mfrs.
Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983).

III. Summary and Explanation of the Proposed Rule

    OSHA proposes to protect worker privacy by ending the electronic
collection of case-specific forms (which OSHA has preliminarily
determined adds uncertain enforcement value, but poses a potential
privacy risk under FOIA) while continuing the collection of summary
forms (which adds significant enforcement value, with little privacy
risk). OSHA has reevaluated the utility of the Form 300 and 301 data
for OSHA enforcement efforts and preliminarily determined that its
(uncertain) enforcement value does not justify the reporting burden on
employers, the burden on OSHA to collect, process, analyze, distribute,
and programmatically apply the data, and--especially--the risks posed
to worker privacy. Specifically, OSHA is proposing to amend its
recordkeeping regulations by removing the part 1904 requirement that
became effective on January 1, 2017, for the annual electronic
submission of injury and illness information contained in OSHA Forms
300 and 301. This amendment would avoid the risks posed by making those
forms into government records that could be found disclosable under
FOIA.
    OSHA is only seeking comment on the proposed changes to Sec.
1904.41, and not on any other aspects of part 1904.

A. Description of Proposed Revisions to Section 1904.41

1. Section 1904.41(a)(1)--Annual Electronic Submission of Part 1904
Records by Establishments With 250 or More Employees
    OSHA proposes to amend Sec.  1904.41(a)(1) to remove the
requirement for establishments with 250 or more employees that are
required to routinely keep injury and illness records to electronically
submit information from the OSHA Form 300 (Log of Work-Related Injuries
and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report)
to OSHA or OSHA's designee once a year. Under the proposed rule, Sec.
1904.41(a)(1) would only require these establishments to electronically
submit information from the OSHA Form 300A (Summary of Work-Related
Injuries and Illnesses). As explained below, OSHA believes that this
change would better protect worker privacy from the risk of FOIA
disclosure, while retaining the lion's share of the enforcement
benefits realized by the 2016 rule.
a. Collecting Forms 300 and 301's Individual Injury and Illness Data
Risks Worker Privacy
    Electronic submission of Forms 300 and 301 puts the federal
government in the position of collecting information that workers may
deem quite sensitive, including descriptions of their injuries and the
body parts affected. OSHA has preliminarily determined that its
collection of these individual forms' information poses a non-trivial
risk of compelled disclosure--endangering worker privacy--under FOIA.
    As records in federal possession, Forms 300, 300A, and 301 could be
subject to disclosure under FOIA if a court determines that no
exemptions to FOIA apply. Although the Department believes that the
information in these forms should be held exempt under FOIA, there
remains a meaningful risk that a court may ultimately disagree and
require disclosure. That risk remains so long as there is a non-trivial
chance that any court in any of the nation's 94 federal judicial
districts might issue a final disclosure order after the exhaustion of
all available appeals. In the Department's view, that risk is not a
reason to stop collecting Form 300A summaries, because their collection
offers significant enforcement value with little privacy risk. However,
OSHA has re-evaluated the utility of routinely collecting the Form 300
and 301 data for enforcement purposes, given that it has already
designed a targeted enforcement mechanism using the summary data, and
given the resources that would be required to collect, process,
analyze, distribute, and programmatically apply the case-specific data
in a meaningful way. Therefore, OSHA believes that the risk of
disclosure under FOIA is a persuasive reason not to collect individual
case information from Forms 300 and 301, as that collection offers only
uncertain enforcement value while putting workers' privacy at risk.
    Nor is that risk speculative. In 2017, an organization invoked FOIA
to request

that the Department produce electronically-submitted information from
Forms 300, 300A, and 301. The Department explained to the requester
that it had not begun collecting Forms 300 and 301, and that Form 300A
is exempt from disclosure under FOIA. The requester then sued the
Department to compel disclosure of electronic information from Form
300A (and presumably would have demanded production of information from
Forms 300 and 301, had the Department started collecting them).
Although the Department strongly believes that Form 300A is exempt from
disclosure under FOIA, the plaintiff's complaint is non-frivolous (cf.
Fed. R. Civ. P. 11). It is accordingly possible that the adjudicating
court could order disclosure of information in Form 300A. After the
exhaustion of any appeals, that order would establish a precedent that
other courts may find persuasive in potential future litigation over
information in Forms 300 and 301.
    That risk of potential compelled disclosure is illustrated by a
case in which the Department was ordered to disclose OSHA records
collecting its individual inspectors' exposures to beryllium. Finkel v.
U.S. Dep't of Labor, No. 05-5525, 2007 WL 1963163 (D.N.J. June 29,
2007). In that case, the Department produced de-identified test
results, but the court ultimately determined that more identifying
information needed to be disclosed, despite FOIA's exemption for
``information . . . in personnel, medical or similar files . . .
[whose] release would constitute a clearly unwarranted invasion of
personal privacy.'' Arieff v. U.S. Dep't of Navy, 712 F.2d 1462, 1466
(D.C. Cir. 1983), quoted in Finkel, 2007 WL 1963163, at *8. While the
Department believes that Finkel would be distinguishable from any
future cases seeking FOIA disclosure of information from individual
Forms 300 and 301, it is reasonably foreseeable that a court could find
it persuasive nonetheless.
    And as the Finkel case suggests, it may not be possible to fully
redact all identifying information in a way that would eliminate
privacy risk. Releasing case-specific data to a member of the public
could result in the inadvertent release of personally identifiable
information (PII) or re-identification of the data with a particular
individual. Although automated systems exist to scrub PII from the data
(see ``Text De-Identification For Privacy Protection: A Study of its
Impact on Clinical Text Information Content,'' St[eacute]phane M.
Meystre et al., Journal of Biomedical Informatics 50 (2014) 142-150,
Ex. 2061), it is not possible to guarantee the non-release of PII.
Simson L. Garfinkel states ``de-identification approaches based on
suppressing or generalizing specific fields in a database cannot
provide absolute privacy guarantees, because there is always a chance
that the remaining data can be re-identified using an auxiliary
dataset.'' (see ``De-Identification of Personal Information,'' p. 5,
Simson L. Garfinkel, NISTIR 8053, October 2015, Ex. 2060). Similarly,
Mehmet Kayaalp observed, ``The de-identification process minimizes the
risk of re-identification but has no claim to make it impossible.''
(see ``Modes of De-identification,'' p. 2, Mehmet Kayaalp, MD, Ph.D.,
U.S. National Library of Medicine, National Institutes of Health, 2017,
Ex. 2062). In addition, de-identification is not the same as
anonymization. That is, even after all PII has been removed, there is
the chance that somebody could re-identify some of the data by linking
the fully de-identified data back to the specific person.
    Unless the U.S. Supreme Court (or sufficient circuit-court
precedent, at least) were to definitively affirm that the information
in Forms 300 and 301 is exempt from FOIA disclosure, there remains a
real risk that the private, sensitive information from those forms
could be disclosed regardless of the Department's attempts to keep it
private.\2\ In the Department's view, that risk to worker privacy is
unacceptable.
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    \2\ The gathering of such data also may incentivize cyber-
attacks on the Department's IT system. For example, on August 14,
2017, OSHA received an alert from the United States Computer
Emergency Readiness Team (US-CERT) in the Department of Homeland
Security that indicated a potential compromise of user information
for OSHA's Injury Tracking Application (ITA). The ITA was taken off-
line as a precaution. A complete scan was conducted by the National
Information Technology Center (NITC). The NITC confirmed that there
was no breach of the data in the ITA and that no information in the
ITA was compromised. Public access to the ITA was restored on August
25, 2017. While this episode showed the security provisions of the
ITA to work as designed, it also demonstrated that such a large data
collection will inevitably encounter malware.
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b. Collecting Forms 300 and 301 Has Uncertain Enforcement Benefits
    As its preamble explains, two of the benefits of the May 2016 final
rule are more effective identification and targeting of workplace
hazards by OSHA and better evaluations of OSHA interventions. See 81 FR
29685. According to the preamble, establishment-specific injury and
illness data would allow for analyses that were not possible with the
data available before the 2016 rule took effect. The establishment-
specific data, the preamble concluded, would allow OSHA to evaluate
different types of programs, initiatives, and interventions in
different industries and geographic areas, enabling the agency to
become more effective and efficient.
    OSHA reaffirms those benefits--as to the collection of information
from the summary Form 300A. Collection of the summary data gives OSHA
the information it needs to identify and target establishments with
high rates of work-related injuries and illnesses. OSHA has collected
summary 300A data for 2016 from 214,574 establishments. With those
data, OSHA has already designed a targeted enforcement mechanism for
industries experiencing higher rates of injuries and illnesses. OSHA
plans to further refine this approach by using the greater volume of
2017 summary data OSHA expects to collect, as explained in the
margin.\3\
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    \3\ OSHA expects many more establishments to respond with 2017
summary data this year, for at least two reasons. First, OSHA has
analyzed the responses for 2016, has identified thousands of non-
responders who were obligated to respond for 2016, and is in the
process of informing them of their obligation to respond for 2017.
Second, OSHA recently discovered that employers did not receive
clear notice of their obligation to respond for 2016, if they were
located in state plan states that had not completed adoption of
their own state rules. In 2018, OSHA issued a correction clarifying
that those employers were indeed obligated to submit Form 300A data
for 2017.
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    OSHA's use of summary data has a lengthy track record in
enforcement, as well. Before the 2016 rule, OSHA had collected these
data for 17 years under its OSHA Data Initiative (ODI) and used them to
identify and target high-rate establishments through the Site-Specific
Targeting (SST) Program. OSHA stopped the ODI in 2013 and the SST in
2014, but those prior programs have still given it considerable
experience with using 300A data for targeting.
    Conversely, OSHA has no prior experience with using the case-
specific Form 300 and 301 data to identify and target establishments.
OSHA is unsure as to how much benefit such data would have for
targeting, or how much effort would be required to realize those
benefits. OSHA estimates \4\ that establishments with 250 employees or
more would report data from approximately 775,210 Form 301s annually, a
total volume three times the number of Form 300As whose data was
uploaded for 2016, while also presenting finer-grained information than
that captured by Form 300A. To gain (speculative, uncertain)
enforcement value from the case-specific data, OSHA would need to
divert resources from other priorities,

such as the utilization of Form 300A data, which OSHA's long experience
has shown to be useful.\5\
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    \4\ See ``PEA calculations,'' Ex. 2067.
    \5\ Forms 300 and 301 continue to offer substantial enforcement
value in the context of on-site inspections. Compliance officers
routinely review them as part of those inspections, and the
information recorded in those forms can provide a roadmap for the
compliance officer to focus the inspection on the most hazardous
aspects of the operation.
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    OSHA's current priority is to assure better compliance with the
existing reporting requirements for severe injuries and fatalities and
for 300A data, and to develop and assess intervention programs based on
these data. OSHA estimates, for example, that over 100,000
establishments failed to submit their 2016 Form 300A data as required
by the 2016 rule, and is currently taking steps aimed at reducing the
number of non-responders for the 2017 reporting year.\6\ Similarly, in
the September 18, 2014, final rule that updated the severe injury
reporting requirements under 29 CFR part 1904.39, OSHA estimated that
more than 100,000 reports of in-patient hospitalizations and
amputations would be made to the Agency. In calendar year 2017, fewer
than 16,000 incidents were reported.7 8 OSHA intends to use
available data sources (e.g., workers compensation records) to identify
and categorize employers who are non-compliant with the reporting
requirements. This information can then be used to focus training and
outreach efforts for improving compliance with these reporting
requirements. But for the time being, given OSHA's enforcement focus on
its readily-usable 300A and severe injury data and its uncertainty
about the extent of the benefits from collecting 300 and 301 data, the
Department has re-evaluated the utility of the Form 300 and 301 data to
OSHA for enforcement purposes and preliminarily determined that its
(uncertain) enforcement value does not justify the reporting burden on
employers, the burden on OSHA to collect, process, analyze, distribute,
and programmatically apply the data, and--especially--the risks posed
to worker privacy.
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    \6\ In addition to the privacy risks and uncertain enforcement
benefits outlined above, electronic collection of the case-specific
forms would also cause regulated employers and OSHA to incur
financial costs. As explained in the Preliminary Economic Analysis,
the annualized cost to employers is estimated at approximately $8.7
million per year. It would also cost OSHA significant sums to make
case-specific data ready for enforcement use. In addition to the
$450,000 required to add functionality to collect these data through
the Injury Tracking Application (ITA), OSHA believes it would
require several dedicated full-time employees to collect, process,
analyze, distribute, and programmatically apply these data in a
meaningful way.
    \7\ Employers covered by the OSH Act must report certain severe
injuries or in-patient hospitalizations within 24 hours, and
fatalities within 8 hours, chiefly to ``allow OSHA to carry out
timely investigations of these events as appropriate.'' 79 FR 56156.
The reported information, which OSHA retains in its records,
resembles the information recorded in the case-specific Form 301.
But these severe injury/fatality reports constitute a very small
percentage of the total universe of Form 301s. In calendar year
2017, fewer than 16,000 incidents were reported. By contrast, OSHA
estimates that approximately 775,000 cases would be submitted to
OSHA as a result of the existing regulation. (See the Preliminary
Economic Analysis.) Requiring electronic submission of Form 301 data
would therefore increase almost 48-fold the universe of data
potentially susceptible to FOIA.
    \8\ The Department also collects Form 301 data in two other
ways, but neither offers a material precedent for collecting
millions of Form 301s' data in a form potentially exposed to FOIA.
     First, BLS collects approximately 250,000 Form 301s from
private establishments for the annual Survey of Occupational Injury
and Illness. But under the Confidential Information Protection and
Statistical Efficiency Act, BLS is prohibited from releasing in
identifiable form information acquired under a pledge of
confidentiality for exclusively statistical purposes.
     Second, the forms are occasionally retained in inspection case
files, primarily in cases where OSHA issues a recordkeeping citation
and the Form 301 is needed as evidence. In fiscal year 2017, OSHA
issued 1,472 recordkeeping citations, 769 of which were for failure
to report a fatality or severe injury, citations which were unlikely
to result in Form 301 being entered into the case file. So in one
year, approximately 703 citations represent possible cases where
OSHA inspectors were likely to have retained Form 301 for agency
records.
---------------------------------------------------------------------------

c. Comments
    OSHA welcomes comments from the public on the benefits and
disadvantages of removing the requirement for employers with 250 or
more employees to submit the data from OSHA Forms 300 and 301 to OSHA
electronically on an annual basis, including the usefulness of the data
for enforcement targeting, the burden on employers of submitting that
data, and the risks its collection poses to worker privacy.
2. Section 1904.41, Paragraphs (b)(1)-(8)
    Paragraphs (b)(1) through (8) of Sec.  1904.41 currently address
implementation of the electronic submission requirements for the
information on OSHA Forms 300, 301, and 300A. OSHA is proposing to
reconcile these provisions with the removal of the annual electronic
submission requirement for the information on OSHA Forms 300 and 301 in
proposed Sec.  1904.41(a), as explained above. Therefore, the proposed
provisions in paragraphs (b)(1)-(8) would provide for the
implementation of electronic submission requirements only for the
information on OSHA Form 300A.
    OSHA invites public comment on these proposals during the comment
period.
3. Employer Identification Number
    OSHA limited the proposed data collection in its 2013 NPRM (78 FR
67254) to Improve Tracking of Workplace Injuries and Illnesses to
records that employers were already required to collect under part
1904. Accordingly, the May 2016 final rule only required the electronic
submission of such records. These records do not include the EIN.
    OSHA now seeks comment on this proposal to add a requirement for
employers to submit their EIN along with their injury and illness data
because the Agency believes such a requirement could reduce or
eliminate duplicative reporting. Collecting EINs would increase the
likelihood that the Bureau of Labor Statistics (BLS) would be able to
match data collected by OSHA under the electronic reporting
requirements to data collected by BLS for the Survey of Occupational
Injury and Illness (SOII). The BLS records contain the EINs for
establishments, and including the EIN in the OSHA collection will
increase the accuracy of matching the OSHA-collected data to the BLS-
collected data. The ability to accurately match the data is critical
for evaluating how BLS might use OSHA-collected data to supplement the
SOII, which in turn would enhance the ability of OSHA and other users
of the SOII data to identify occupational injury and illness trends and
emerging issues. Furthermore, the ability of BLS to match the OSHA-
collected data also has the potential to reduce the burden on employers
who are required to report injury and illness data both to OSHA (for
the electronic recordkeeping requirement) and to BLS (for the SOII).
OSHA and BLS are also collaborating to identify technological
approaches to reduce respondent burden. This collaboration includes
exploring changes to both data collection systems as well as real-time
sharing of OSHA data with BLS, with the goal of streamlining the
reporting process for respondents covered under both collections.
    The SOII is an establishment survey and is a comprehensive source
of national estimates of nonfatal injuries and illnesses that occur in
the workplace. The SOII collects data on non-fatal injuries and
illnesses for each calendar year from a sample of employers based on
recordable injuries and illnesses as defined by OSHA in 29 CFR part
1904. Using data from the survey, BLS estimates annual counts

and rates by industry and state for workers in private industry and
state and local government. In addition, the SOII provides details
about the most severe injuries and illnesses (those involving days away
from work), including characteristics of the workers involved and
details of the circumstances surrounding the incident, using data
collected on Forms 300A and 301 from the sampled establishments (see
BLS Handbook of Methods: https://www.bls.gov/opub/hom/soii/home.htm).
    Given the limitations of matching establishments across databases,
there is currently no methodological approach to completely match
establishments that currently submit data under both OSHA's collection
of injury and illness data under Sec.  1904.41 and the BLS data
collection for the SOII. BLS cannot provide its collected data to OSHA
because the Confidential Information Protection and Statistical
Efficiency Act of 2002 (Pub. L. 107-347, 116 Stat. 2899 (2002))
prohibits BLS from releasing establishment-specific data to either OSHA
or the general public. Although OSHA can provide the data it collects
to BLS, without the EIN it is very difficult to match the
establishments in OSHA's data collection to the establishments in BLS's
data collection. Not having the EIN increases the resources necessary
to produce the match and reduces the accuracy of the match.
    Including the EIN in the electronic reporting to OSHA would improve
BLS's ability to accurately match the OSHA-collected data with the SOII
data. After evaluation of the accuracy of the data matching, it may be
possible for BLS to use the OSHA-collected data in the generation of
occupational injuries and illnesses estimates, reducing burden on
employers. If the EIN is not collected and the data from the two
sources cannot be accurately matched, reducing this burden becomes
nearly impossible. Collecting the EIN would thus accord with a
recommendation in the 2018 National Academy of Sciences, Engineering,
and Medicine report on A Smarter National Surveillance System for
Occupational Safety and Health in the 21st Century: ``To avoid
duplicate reporting, OSHA and BLS should integrate data-collection
efforts so that employers selected in the annual BLS sample for SOII
but reporting electronically to OSHA need not make separate reports to
BLS'' (see Ex. 2063).
    Including the EIN as part of electronic reporting might also
improve the quality and utility of the collected data. For example,
OSHA could use the EIN to identify errors such as multiple submissions
of data from the same establishment and to link multiple years of data
submissions from the same establishment. The EIN could also be used to
match against other databases that contain this identifier to add
additional characteristics to the data. For example, submissions could
be linked to the OSHA Information System (OIS) to identify the previous
enforcement history of the establishment when the inspection records
contain the EIN.
    OSHA notes that EINs do not have the same level of protection as
Social Security numbers. For example, any publicly-traded company must
put its EIN on public filings with the U.S. Securities and Exchange
Commission. Within DOL, the Employee Benefits Security Administration
(EBSA) discloses EINs associated with filings of the Annual Returns/
Reports of Employee Benefit Plans (Form 5500); EIN is a searchable
field on EBSA's ``Form 5500/5000-SF Filing Search'' web page (see
https://www.efast.dol.gov/welcome.html), and the search results are
listed in ascending order by EIN. Other agencies also make EINs public
in filings, such as the Federal Communications Commission's Commission
Registration System (CORES). Businesses also have to share EINs with
contractors and clients for tax reporting, such as filing an IRS Form
1099. As a result, DOL has not generally withheld EINs from disclosure.
    OSHA invites public comment on the advantages and disadvantages of
requiring employer submission of EINs and on whether employers required
to electronically report information to OSHA under part 1904 would
consider the EIN to be exempt from disclosure, either as confidential
business information or for another reason.

B. Additional Questions

    OSHA seeks comments and data from the public regarding the proposed
rule to remove the requirement for establishments with 250 or more
employees that are required to routinely keep injury and illness
records to electronically submit information from the OSHA Form 300 and
301 and to add the requirement for covered establishments to submit
their EIN. More specifically, the following questions are relevant to
this rulemaking:
    1. What risks to worker privacy are posed by the electronic
collection of information from Forms 300 and 301 from establishments
with 250 or more workers? How likely are these risks to materialize?
How could OSHA make them less likely, and what resources would be
required? Given the limitations identified above, what are the benefits
of electronically collecting this information?
    2. Besides the Bureau of Labor Statistics, what other agencies or
organizations in the public and private sectors use automated coding
(autocoding) systems for text data in data collections?
    3. Besides the Department of Health and Human Services, what other
agencies and organizations in the public and private sectors use
automated de-identification systems to remove PII from text data before
making the data available to the public? What challenges have they
faced in using those systems to keep PII protected?
    4. Would employers required to electronically report information to
OSHA under part 1904 consider the EIN to be exempt from disclosure,
either as confidential business information or for another reason? Are
there any circumstances where the EIN would be considered Personally
Identifiable Information (PII)? OSHA also seeks comments on privacy
concerns that might arise from employers submitting their EIN.
    OSHA is only seeking comment on the proposed changes to Sec.
1904.41 in this NPRM, and not on any other aspects of part 1904.

IV. Preliminary Economic Analysis and Regulatory Flexibility
Certification

A. Introduction

    E.O. 12866 and E.O. 13563 require that OSHA estimate the benefits,
costs, and net benefits of proposed and final regulations. Executive
Orders 12866 and 13563, the Regulatory Flexibility Act (5 U.S.C. 601-
612) and the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501-1571)
also require OSHA to estimate the costs, assess the benefits, and
analyze the impacts of certain rules that the Agency promulgates.
Executive Orders 12866 and 13563 direct agencies to assess all costs
and benefits of available regulatory alternatives and, if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety,
and other effects; distributive impacts; and equity). Executive Order
13563 emphasizes the importance of quantifying both costs and benefits,
reducing costs, harmonizing rules, and promoting flexibility.
    This proposed rule would protect worker privacy and reduce costs
for employers and OSHA by amending OSHA's recordkeeping regulation to
remove the requirement for the annual electronic collection of
information

from OSHA Forms 300 and 301. OSHA estimates that the rule would have
net cost savings of $8.28 million per year at a 3 percent discount
rate, including $8.23 million per year for the private sector and
$52,754 per year for the government. Annualized at a 7 percent discount
rate, the proposed rule would have net cost savings of $8.25 million
per year, including $8.18 million per year for the private sector and
$64,070 per year for the government. Annualized at a perpetual 7
percent discount rate, the proposed rule would have net cost savings of
$8.35 million per year. As explained above, OSHA has preliminarily
determined that the electronic collection of information in the OSHA
300 and 301 forms poses risks to worker privacy and additional cost to
employers and OSHA that outweigh the uncertain enforcement benefits of
collecting it.
    The proposed rule is not an ``economically significant regulatory
action'' under E.O. 12866 or UMRA (2 U.S.C. 1532(a)), and it is not a
``major rule'' under the Congressional Review Act (CRA) (5 U.S.C. 801
et seq.). The Agency estimates that the rulemaking imposes far less
than $100 million in annual economic costs. In addition, it does not
meet any of the other criteria specified by UMRA or CRA for a
significant regulatory action or major rule.

B. Cost Savings

    For this PEA, OSHA relied on the Final Economic Analysis (FEA) in
the May 2016 final rule (81 FR 29624), updated to include more recent
data and some modifications in OSHA's methodology. OSHA obtained the
estimated cost of electronic data submission by multiplying the
compensation per hour of the person expected to perform the task of
electronic data submission by the time required to submit the data.
    As in the 2016 FEA, OSHA selected an employee in the occupation of
Industrial Health and Safety Specialist and Technician as being at the
appropriate salary level. The mean hourly wage for Standard
Occupational Classification (SOC) code 29-9011, Industrial Health and
Safety Specialists, in the May 2016 data from the BLS Occupational
Employment Survey (OES), was $34.85.\9\ (The mean hourly wage used in
the 2016 FEA was $33.88, using May 2014 data from OES.) This was the
raw wage and did not include the other fringe benefits that make up
full hourly compensation or overhead costs calculated in this document.
Through the current electronic collection of 300A data, OSHA is
collecting data on the occupations of employees responsible for
submitting data. This information is collected as a part of the sign-up
process where establishments create their user accounts; one of the
fields for a new user is their job title. OSHA may use these data to
revise the estimates in the final rule. In addition, OSHA welcomes
comment on whether ``Industrial Health and Safety Specialist and
Technician'' is the appropriate salary level for the employee
performing this task.
---------------------------------------------------------------------------

    \9\ See https://www.bls.gov/oes/current/oes299011.htm.
---------------------------------------------------------------------------

    The June 2017 data from the BLS National Compensation Survey \10\
reported a mean fringe benefit factor of 1.44 for workers in private
industry. (The mean fringe benefit factor used in the 2016 FEA was the
same, using December 2014 data from the BLS National Compensation
Survey.) OSHA multiplied the mean hourly wage by the mean fringe
benefit factor to obtain an estimated total compensation (wages and
benefits) for Industrial Health and Safety Specialists of $50.18 per
hour ($34.85 x 1.44). The estimated total compensation (wages and
benefits) used in the 2016 FEA was $48.78 per hour, so this estimate in
this PEA represents an increase of 3 percent, due to the increase in
the mean hourly wage.
---------------------------------------------------------------------------

    \10\ See https://www.bls.gov/web/ecec/ececqrtn.txt.
---------------------------------------------------------------------------

    OSHA recognizes that not all firms assign the responsibility for
recordkeeping to an Industrial Health and Safety Specialist. For
example, a smaller firm may use a bookkeeper or a plant manager, while
a larger firm may use a higher-level specialist. However, OSHA believes
that the calculated cost of $50.18 per hour is a reasonable estimated
total hourly compensation for a typical record keeper.
    Additionally, after publishing the May 2016 final rule, the
Department of Labor determined that it is appropriate in some
circumstances to account for overhead expenses as part of the
methodology used to estimate the costs and economic impacts of OSHA
regulations. Therefore, for this PEA, OSHA is updating the projected
costs of the requirement for establishments with 250 or more employees
to submit the information from OSHA Forms 300 and 301 to OSHA, as
reflected in the 2016 FEA, by adding an overhead rate equivalent to 17
percent of base wages. For this PEA, OSHA included an overhead rate
when estimating the marginal cost of labor in its primary cost
calculation. Overhead costs are indirect expenses that cannot be tied
to producing a specific product or service. Common examples include
rent, utilities, and office equipment. Unfortunately, there is no
general consensus on the cost elements that fit this definition. The
lack of a common definition has led to a wide range of overhead
estimates. Consequently, the treatment of overhead costs needs to be
case-specific. OSHA adopted an overhead rate of 17 percent of base
wages. This is consistent with the overhead rate used for sensitivity
analyses in the FEA in support of the 2017 final rule delaying the
deadline for submission of 300A data (82 FR 55761) and the FEA in
support of OSHA's 2016 final standard on Occupational Exposure to
Respirable Crystalline Silica.\11\ For example, to calculate the total
labor cost for an Industrial Health and Safety Specialist, Standard
Occupational Classification (SOC) code 29-9011, three components are
added together: base wage ($34.85) + fringe benefits ($15.33, derived
as 44% of $34.85) + applicable overhead costs ($5.92, derived as 17% of
$34.85). This increases the labor cost of the fully-loaded hourly wage
for an Industrial Health and Safety Specialist to $56.10.
---------------------------------------------------------------------------

    \11\ See the sensitivity analyses in the Improved Tracking FEA
(https://www.gpo.gov/fdsys/pkg/FR-2017-11-24/pdf/2017-25392.pdf,
page 55765) and the FEA in support of OSHA's 2016 final standard on
Occupational Exposure to Respirable Crystalline Silica (81 FR 16285)
(https://www.gpo.gov/fdsys/pkg/FR-2016-03-25/pdf/2016-04800.pdf
pp.16488-16492.). The methodology was modeled after an approach used
by the Environmental Protection Agency. More information on this
approach can be found at: U.S. Environmental Protection Agency,
``Wage Rates for Economic Analyses of the Toxics Release Inventory
Program,'' June 10, 2002 (Ex. 2066). This analysis itself was based
on a survey of several large chemical manufacturing plants: Heiden
Associates, Final Report: A Study of Industry Compliance Costs Under
the Final Comprehensive Assessment Information Rule, Prepared for
the Chemical Manufacturers Association, December 14, 1989, Ex. 2065.
---------------------------------------------------------------------------

    For time required for the data submission in this PEA, OSHA uses
the same estimated unit time requirements as reported by BLS in its
paperwork burden analysis for the Survey of Occupational Injuries and
Illnesses (SOII) (OMB Control Number 1220-0045, expires December 31,
2018). BLS estimated 10 minutes per recordable injury/illness case for
electronic submission of the information on Form 300 (Log of Work-
Related Injuries and Illnesses) and Form 301 (Injury and Illness
Incident Report). In addition, in the 2016 FEA, OSHA estimated 2
minutes more time than the BLS paperwork burden, for a total of 12
minutes per recordable case (10 minutes per case for Form 301 entries
plus 2 minutes per case for entry of Form 300 log entries), to account
for the

differences between BLS and OSHA submission requirements.
    The proposed rule would remove the requirement for establishments
with 250 or more employees to report information from OSHA Forms 300
and 301. To estimate the number of injuries and illnesses that would be
reported by covered establishments with 250 or more employees under the
current rule, OSHA assumed that the total number of recordable cases in
establishments with 250 or more employees is proportional to the
establishments' share of employment within each industry.\12\ OSHA then
used the most recent SOII data to estimate that, without the proposed
rule, covered establishments with 250 or more employees would report
775,210 injury and illness cases per year.\13\ The cost per case is
estimated at $11.22 (12/60 x $56.10), and the total cost is $8,699,173
($11.22 per case x 775,210 cases).\14\ Therefore, the proposal to
remove the requirement to submit the information from OSHA Form 300 and
301 to OSHA electronically would result in a total cost savings to the
private sector of $8,699,173.\15\
---------------------------------------------------------------------------

    \12\ OSHA welcomes comments on this assumption.
    \13\ The 2016 FEA estimated 713,397 injury and illness cases per
year using the same methodology and the most recent SOII data then
available (see ``PEA calculations,'' Ex. 2067).
    \14\ In addition, note that the totals in tables in this
chapter, as well as totals summarized in the text, may not precisely
sum from underlying elements due to rounding. The precise
calculation of the numbers in the PEA appears in the spreadsheet
(see ``PEA calculations,'' Ex. 2067).
    \15\ Overall, the estimated cost savings of this proposal to
remove the provision for electronic reporting of case data is 25
percent greater than the 2016 estimated cost of promulgating the
provision ($6,948,487). There are three reasons for this 25 percent
increase: The number of establishments with more than 250 employees
has grown, the mean hourly wage has increased, and OSHA is now
including a 17 percent overhead estimate in the cost estimates.
---------------------------------------------------------------------------

    The 2016 FEA also included government costs for the rule because
creating a reporting and data collection system was a significant
fraction of the total costs of the regulation. Not collecting the case-
specific data from OSHA Form 300 and 301 would generate a small
additional cost savings for the government because that portion of the
reporting and data collection system has not yet been created and would
not have to be created under the proposed rule. OSHA estimates a lump
sum savings from not creating the software to collect the 300 and 301
data to be $450,000. Annualized at 3 percent over 10 years, this would
represent a savings to the government of $52,754 per year. OSHA also
annualized the cost savings at 7 percent over 10 years, and using this
discount rate, the cost savings would be slightly higher: $64,070.

C. New Costs (From the EIN Collection)

    Establishments would be newly required to submit the employer's EIN
along with the employer's electronic data submission. Some employees
given this task would already know their employer's EIN from their
other duties, but others would need to spend some time finding out this
information. OSHA estimates an average of 5 minutes for an employee to
find out his or her employer's EIN and to enter it on the submission
form. Hence the unit cost for a submission would be the wage of the
employee who submitted the information multiplied by his or her time
plus overhead, or $4.68 [(5/60) x $56.10].
    The electronic reporting system is designed to retain information
about each establishment based on the login information, including the
EIN. Therefore, employers would only have to provide OSHA their EIN
once, so this would not be a recurring cost. However, it would be an
additional one-time cost for employers who are newly reporting data
because, for example, the establishment is new or the employer newly
reached the reporting threshold for employment size. OSHA has estimated
that each year there will be about 10.15 percent more establishments
that will be required to report their EIN. This 10.15 percent figure is
derived from the U.S. Census Bureau Statistics of U.S. Businesses
(SUSB), specifically the employment change data set \16\ which show the
increase in U.S. business establishments from 2014 to 2015. In 2015
there were 689,819 new establishments, out of a total 6,795,201
establishments. Dividing the first figure by the second gives a change
of about 10.15 percent.
---------------------------------------------------------------------------

    \16\ Source: https://www2.census.gov/programssurveys/susb/datasets/2015/us_state_emplchange_2014-2015.txt.
---------------------------------------------------------------------------

    To calculate the total estimated costs for covered establishments
to provide their EINs, OSHA used establishment and employment data from
the U.S. Census County Business Patterns (CBP).\17\ The three
categories of included establishments are (1) all establishments with
250 or more employees in industries that are required to routinely keep
OSHA injury and illness records, (2) establishments with 20-249
employees in certain high-hazard industries, as defined in the Appendix
to the May 2016 final rule, and (3) farms and ranches with 20 or more
employees. CBP data do not include numbers of farms and ranches with 20
or more employees, so in the May 2016 final rule, OSHA used data from
the 2012 Census of Agriculture. Updated data from the 2017 Census of
Agriculture are not available at this time, so OSHA will continue to
use a count of 20,623 farms with 20 or more employees. CBP data show
that there are 36,903 establishments with 250 or more employees in
industries required to routinely keep records and 405,666
establishments with 20-249 employees in the designated high-hazard
industries. Combining these figures with 20,623 farms and ranches
results in a total of 463,192 establishments that would be required to
submit an EIN under the proposed rule. With a cost per establishment of
$4.68, the total first year cost of providing EINs would be $2,165,751
(463,192 x $4.68).\18\ When this cost is annualized over ten years, the
annualized cost at a 3 percent discount rate is $253,892 and at a 7
percent discount rate the cost is $308,354.
---------------------------------------------------------------------------

    \17\ For the CBP see: https://www.census.gov/programs-surveys/cbp.html.
    \18\ In addition, note that the totals in tables in this
chapter, as well as totals summarized in the text, may not precisely
sum from underlying elements due to rounding. The precise
calculation of the numbers in the PEA appears in the spreadsheet
(see ``PEA calculations,'' Ex. 2067).
---------------------------------------------------------------------------

    There are 463,192 establishments (including establishments with
more than 250 employees, those with 20-249 employees in certain NAICS
codes, and farms with more than 20 employees) that would be subject to
reporting their EIN in the first year under this proposal. With 10.15
percent new establishments each year, there will be an additional
47,012 establishments each year. The cost for those establishments will
be $4.68 x 47,012 or $219,858. This cost does not occur in the first
year. OSHA annualized 9 years of new establishment costs over ten
years, which results in annualized costs of $213,262 at a discount rate
of 3 percent and $204,468 at a 7 percent discount rate.
    The EIN data field is already included in the reporting system
design, so there would be no additional government costs associated
with submittal of the EIN.

D. Net Cost Savings

    The cost savings of the proposed rule, the new costs associated
with collecting the EIN, and the net total cost savings are shown in
Table 1. Combining the cost savings to the private sector and to the
government, the estimated total annual cost savings from the proposed
rule would be $8,751,927 at a 3 percent discount rate and $8,763,243 at
7 percent discount rate. The additional costs to the private sector
from

collection of the EIN are estimated to be $467,194 at a 3 percent
discount rate and $512,822 at 7 percent discount rate. The net cost
savings for this proposal are estimated to be $8,284,733 at a 3 percent
discount rate and $8,250,421 at 7 percent discount rate.

 Table I--Total Cost Savings and Total Additional Costs of the Proposed
                                  Rule
------------------------------------------------------------------------
                                                            Annual cost
                  Cost savings element                        savings
------------------------------------------------------------------------
Cost savings for eliminating electronic submission of         $8,699,173
 part 1904 records by establishments with 250 or more
 employees (Total Private Sector Savings)...............
Total Government Cost Savings, 3 percent discount rate            52,754
 over ten years.........................................
Total Government Cost Savings, 7 percent discount rate            64,070
 over ten years.........................................
Total Cost Savings per year, 3 percent discount rate           8,751,927
 over ten years.........................................
Total Cost Savings per year, 7 percent discount rate           8,763,243
 over ten years.........................................
------------------------------------------------------------------------

              New costs from EIN collection                    Cost
------------------------------------------------------------------------
First Year EIN Cost.....................................      $2,165,751
Annualized First Year Costs, 3 percent discount rate             253,892
 over ten years.........................................
Annualized First Year Costs, 7 percent discount rate             308,354
 over ten years.........................................
Subsequent Annual EIN Costs (from new establishments),           219,858
 starting in second year................................
Subsequent annual EIN Cost Annualized at a 3 percent             213,262
 discount rate over ten years...........................
Subsequent annual EIN Cost Annualized at a 7 percent             204,468
 discount rate over ten years...........................
Annualized Total EIN Cost, 3 percent discount rate over          467,194
 ten years..............................................
Annualized Total EIN Cost, 7 percent discount rate over          512,822
 ten years..............................................
Net Cost Savings, 3 percent discount rate over ten years       8,284,733
Net Cost Savings, 7 percent discount rate over ten years       8,250,421
------------------------------------------------------------------------

    There could be substantial cost savings from requiring covered
employers to include the EIN in their reporting. There is roughly a 40%
overlap between the BLS SOII sample and private sector establishments
required to report to OSHA. If OSHA collected Form 300A from all
covered private sector units and BLS were able to fully match these
units and use them in generating SOII estimates, the reduction in
duplication would represent approximately 15,000 hours of respondent
burden. In its SOII paperwork burden analysis, BLS estimates the total
cost of submitting this form for private sector establishments to be
$891,000. The potential cost savings for avoiding duplication is 40
percent of this value--$356,000. Considering that the cost savings for
avoiding duplication is perpetual, the total net savings for adding the
EIN is estimated to be $2,648,850 at a 3 percent discount rate and
$126,294 at 7 percent discount rate in a perpetual time horizon.

E. Benefits

    The value of worker privacy is impossible to quantify, but no less
significant because of that fact. This proposed rule would protect
worker privacy by preventing routine government collection of
information that may be quite sensitive, including descriptions of
workers' injuries and the body parts affected, and thereby avoiding the
risk that such information might be publicly disclosed under FOIA.
    OSHA further believes that the collection of individual information
from Forms 300 and 301 could add enforcement benefits, but those
benefits are uncertain and difficult to quantify. As noted above, these
benefits are uncertain because OSHA lacks experience with the use of
that information and is not sure about how many resources it would take
to make meaningful use of that information. The loss of these uncertain
benefits is also impossible to quantify.
    OSHA has preliminarily determined that the (substantial) benefits
to worker privacy outweigh the (uncertain) foregone benefits to
enforcement. It welcomes public comment on this determination,
including on its preliminary conclusions that neither worker privacy
nor enforcement benefits can be meaningfully quantified.

F. Economic Feasibility

    Removing the requirement for establishments with 250 or more
employees to submit the information from OSHA Forms 300 and 301 to OSHA
annually would reduce costs and so would have no negative feasibility
effects. The EIN requirement would cost an estimated $4.68 per
establishment, still leaving a large overall reduction in costs, and so
would be economically feasible. Hence, OSHA concludes that the proposed
rule is economically feasible.

G. Regulatory Flexibility Certification

    The current requirement for annual electronic submission of
information from OSHA Forms 300 and 301 affects only a very small
minority of small firms. In many industry sectors, there are no small
firms with at least 250 employees. Even in those industry sectors where
the definition of small firm includes some firms with at least 250
employees, the overwhelming majority of small firms have fewer than 250
employees. However, there will be some small firms affected in some
industries. Removing this requirement as proposed would result in a
cost savings of, on average, $236 per establishment for each
establishment with 250 or more employees affected by the 2016 Final
Rule. This number is derived by dividing the total cost savings of
$8,699,173 by 36,903 affected establishments with 250 or more
employees. Such a small amount of cost savings would not have a
significant impact on a firm with 250 or more employees.
    As above, removing the requirement for establishments with 250 or
more employees to submit the information from OSHA Forms 300 and 301
annually to OSHA would reduce costs, and the estimated cost of the EIN
requirement is $4.68 per establishment, a negligible amount. Hence, per
Sec.  605 of the Regulatory Flexibility Act, OSHA certifies that this
proposed rule will not have a significant economic impact on a
substantial number of small entities.

V. OMB Review Under the Paperwork Reduction Act of 1995

    This proposed rule would revise an existing collection of
information, as

defined and covered by the Paperwork Reduction Act of 1995 (PRA) and
its implementing regulations, that is subject to review by OMB under
the PRA (44 U.S.C. 3501-3521) and OMB regulations (5 CFR part 1320).
The PRA requires that agencies obtain approval from OMB before
conducting any collection of information (44 U.S.C. 3507). The PRA
defines a ``collection of information'' as ``the obtaining, causing to
be obtained, soliciting, or requiring the disclosure to third parties
or the public of facts or opinions by or for an agency regardless of
form or format'' (44 U.S.C. 3502(3)(A)).
    OSHA's existing recordkeeping forms consist of the OSHA 300 Log,
the 300A Summary, and the 301 Incident Report. These forms are
contained in the Information Collection Request (ICR) (paperwork
package) titled 29 CFR part 1904 Recording and Reporting Occupational
Injuries and Illnesses, which OMB approved under OMB Control Number
1218-0176.
    The proposed rule would affect the ICR estimates as follows:
    1. Establishments that are subject to the part 1904 requirements
and have 250 or more employees would no longer be required to
electronically submit information recorded on their OSHA Forms 300 and
301 to OSHA once a year.
    2. Establishments subject to the data collection would provide one
additional data element, the EIN.
    The burden hours for the electronic reporting requirements under
Sec.  1904.41 if revised as proposed are estimated to be 136,641 per
year. There are no capital costs for this collection of information.
    More specifically, this action proposes to amend the recordkeeping
regulation to remove the requirement for establishments that are
required to keep injury and illness records under part 1904, and that
had 250 or more employees in the previous year, to electronically
submit to OSHA or OSHA's designee case characteristic information from
the OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA
Form 301 (Injury and Illness Incident Report) once a year. Under the
proposed rule, these establishments would only be required to submit
summary information from the OSHA Form 300A. There are approximately
37,000 establishments that would no longer be subject to a requirement
to submit the information on OSHA Forms 300 and 301 for approximately
775,000 injury and illness cases under the proposed rule. OSHA used
2015 SOII data (https://www.bls.gov/iif/oshwc/osh/os/ostb4734.pdf) to
estimate that, without the proposed rule, covered establishments with
250 or more employees would report 775,210 injury and illness cases per
year.) Also, OSHA requests comment on requiring 463,000 employers to
submit their EIN to OSHA.
    The table below presents the components of the collection that
comprise the ICR estimates.

----------------------------------------------------------------------------------------------------------------
                                        Estimated burden under current        Estimated burden under proposed
                                            reporting requirements                 reporting requirements
                                   -----------------------------------------------------------------------------
                                                                 Total                                  Total
                                     Number of    Unit hours     burden     Number of    Unit hours     burden
                                       cases       per case      hours        cases       per case      hours
----------------------------------------------------------------------------------------------------------------
Sec.   1904.41(a)(1)--Create a new        3,690        0.167          616        3,690        0.167          616
 account..........................
Sec.   1904.41(a)(1)--provide EIN.            0        0.083            0       36,903        0.083        3,063
Sec.   1904.41(a)(1)--electronic         36,903        0.167        6,163       36,903        0.167        6,163
 submission of OSHA Form 300A data
 by establishments with 250 or
 more employees...................
Sec.   1904.41(a)(1)--electronic        775,210          0.2      155,042            0          0.2            0
 submission of injury and illness
 case data by establishments with
 250 or more employees............
Sec.   1904.41(a)(2)--Create a new       40,567        0.167        6,775       40,567        0.167        6,775
 account..........................
Sec.   1904.41(a)(2)--provide EIN.            0        0.083            0      426,285        0.083       35,382
Sec.   1904.41(a)(2)--electronic        385,383        0.167       64,359      385,383        0.167       64,359
 submission of OSHA Form 300A data
 by establishments with 20 or more
 employees but fewer than 250
 employees in designated
 industries.......................
Sec.   1904.41(a)(2)--electronic         20,283            1       20,283       20,283            1       20,283
 submission of OSHA Form 300A data
 by establishments with 20 or more
 employees but fewer than 250
 employees in designated
 industries--with no internet
 connection.......................
Sec.   1904.41(a)(3)--Electronic              0            0            0            0            0            0
 submission of part 1904 records
 upon notification................
                                   -----------------------------------------------------------------------------
    Total burden hours............  ...........  ...........      253,238  ...........  ...........      136,641
----------------------------------------------------------------------------------------------------------------

    As required by 5 CFR 1320.5(a)(1)(iv) and 1320.8(d)(2), the
following paragraphs provide information about this ICR.
    1. Title: Recording and Reporting Occupational Injuries and
Illnesses (29 CFR part 1904).
    2. Number of respondents: 1,002,912.
    3. Frequency of responses: Annually.
    4. Number of responses: 5,839,692.
    5. Average time per response: 22 minutes.
    6. Estimated total burden hours: 2,136,953 hours.
    7. Estimated costs (capital-operation and maintenance): $0.
    Members of the public may comment on the paperwork requirements in
this proposed regulation by sending their written comments to the
Office of Information and Regulatory Affairs, Attn: OMB Desk Officer
for the Department of Labor, OSHA (Regulation Identifier Number (RIN)
1218-AD17), Office of Management and Budget, Room 10235, Washington, DC
20503; telephone:<PHONE_NUMBER>; fax:<PHONE_NUMBER> (these are not toll-
free numbers); email: [email protected]. Please limit the
comments to only the proposed changed provisions of the recordkeeping
rule related to information collection (i.e., proposed Sec.  1904.41).
    OSHA also encourages commenters to submit their comments on these
paperwork requirements to the rulemaking docket (OSHA-2013-0023), along
with their comments on other parts of the proposed regulation. For
instructions on submitting these comments to the docket, see the
sections of this Federal Register document titled DATES and ADDRESSES.
    Comments submitted in response to this document are public records;
therefore, OSHA cautions commenters about submitting personal
information such as Social Security numbers and dates of birth. To
access the docket to read or download comments and other materials
related to this paperwork determination, including the complete ICR,
use the procedures described under

the section of this document titled ADDRESSES. You may obtain an
electronic copy of the complete ICR by going to the website at http://www.reginfo.gov/public/do/PRAMain, then selecting ``Department of
Labor'' under ``Currently Under Review,'' then clicking on ``submit.''
This will show all of the Department's ICRs currently under review,
including the ICRs submitted for proposed rulemakings. To make
inquiries, or to request other information, contact Mr. Charles
McCormick, Directorate of Standards and Guidance, OSHA, telephone:
(202) 693-1740; email: [email protected].
    OSHA and OMB are particularly interested in comments that:
     Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
     Evaluate the accuracy of the agency's estimate of the
burden of the proposed collection of information, including the
validity of the methodology and assumptions used;
     Enhance the quality, utility, and clarity of the
information to be collected; and
     Minimize the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of responses.
    OSHA notes that a federal agency cannot conduct or sponsor a
collection of information unless OMB approves it under the PRA, and the
information collection displays a currently-valid OMB control number.
Also, notwithstanding any other provision of law, no party shall be
subject to penalty for failing to comply with a collection of
information if the collection of information does not display a
currently-valid OMB control number. OSHA will publish a notice of OMB's
action when it publishes the final regulation, or, if not approved by
then, when OMB authorizes the information collection requirements under
the PRA.

VI. Unfunded Mandates

    For purposes of the UMRA (2 U.S.C. 1501-1571), as well as E.O.
13132 (64 FR 43255 (Aug. 4, 1999)), this rule does not include any
federal mandate that may result in increased expenditures by state,
local, and tribal governments, or increased expenditures by the private
sector of more than $100 million.

VII. Federalism

    The proposed rule has been reviewed in accordance with Executive
Order 13132, regarding federalism. Because this rulemaking involves a
``regulation'' issued under Sections 8 and 24 of the OSH Act, and is
not an ``occupational safety and health standard'' issued under Section
6 of the OSH Act, the rule will not preempt state law (29 U.S.C.
667(a)). The effect of the proposed rule on states is discussed in
Section VIII, State Plan States.

VIII. State Plan States

    Pursuant to section 18 of the OSH Act (29 U.S.C. 667) and the
requirements of 29 CFR 1904.37 and 1902.7, within 6 months after
publication of the final OSHA rule, state-plan states must promulgate
occupational injury and illness recording and reporting requirements
that are substantially identical to those in 29 CFR part 1904
``Recording and Reporting Occupational Injuries and Illnesses.'' All
other injury and illness recording and reporting requirements (for
example, industry exemptions, reporting of fatalities and
hospitalizations, record retention, or employee involvement) that are
promulgated by state-plan states may be more stringent than, or
supplemental to, the federal requirements, but, because of the unique
nature of the national recordkeeping program, states must consult with
OSHA and obtain approval of such additional or more stringent reporting
and recording requirements to ensure that they will not interfere with
uniform reporting objectives (29 CFR 1904.37(b)(2), 29 CFR 1902.7).
Also because of the need for a consistent national data system,
employers in state-plan states must comply with federal requirements
for the submission of data under part 1904 whether or not the state
plan has implemented a substantially identical requirement by the time
the federal requirement goes into effect. Therefore, although states
will need to update their plans to match the Federal plan, there is no
discretion involved, so this change should be relatively simple to
make.
    There are 28 state plan states and territories. The states and
territories that cover private sector employers are Alaska, Arizona,
California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan,
Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico,
South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and
Wyoming. Connecticut, Illinois, Maine, New Jersey, New York, and the
Virgin Islands have OSHA-approved state plans that apply to state and
local government employees only.

IX. Public Participation

    Because this rulemaking involves a regulation rather than a
standard, it is governed by the notice and comment requirements in the
Administrative Procedure Act (APA) (5 U.S.C. 553) rather than section 6
of the OSH Act (29 U.S.C. 655) and 29 CFR part 1911 (both of which only
apply to ``promulgating, modifying or revoking occupational safety or
health standards'' (29 CFR 1911.1)). Therefore, the OSH Act requirement
to hold an informal public hearing (29 U.S.C. 655(b)(3)) on a proposed
standard, when requested, does not apply to this rulemaking.

A. Public Submissions

    OSHA invites comment on all aspects of the proposed rule. OSHA
specifically encourages comment on the issues raised in the questions
subsection. OSHA is not seeking comment on any other aspects of part
1904. Interested persons must submit comments by September 28, 2018.
The Agency will carefully review and evaluate all comments,
information, and data, as well as all other information in the
rulemaking record, to determine how to proceed.
    You may submit comments in response to this document (1)
electronically at https://www.regulations.gov, which is the federal e-
rulemaking portal; (2) by fax; or (3) by hard copy. All submissions
must identify the agency name and the OSHA docket number (Docket No.
OSHA-2013-0023) or RIN (RIN 1218-AD17) for this rulemaking. You may
supplement electronic submissions by uploading document files
electronically. If, instead, you wish to mail additional materials in
reference to an electronic or fax submission, you must submit three
copies to the OSHA docket office (see ADDRESSES section). The
additional materials must clearly identify your electronic comments by
name, date, and docket number, so that OSHA can attach them to your
comments.
    Because of security-related procedures, the use of regular mail may
cause a significant delay in the receipt of submissions. For
information about security procedures concerning the delivery of
materials by hand, express delivery, messenger, or courier service,
please contact the OSHA docket office at<PHONE_NUMBER> (TTY (877) 889-
5627).

B. Access to Docket

    Comments in response to this Federal Register document are posted
at https://

www.regulations.gov, the federal e-rulemaking portal. Therefore, OSHA
cautions individuals about submitting personal information such as
Social Security numbers and birthdates. Although submissions are listed
in the https://www.regulations.gov index, some information (e.g.,
copyrighted material) is not publicly available to read or download
through that website. All comments and exhibits, including copyrighted
material, are available for inspection at the OSHA docket office.
Information on using https://www.regulations.gov to submit comments and
access dockets is available on that website. Contact the OSHA docket
office for information about materials not available through the
website and for assistance in using the internet to locate docket
submissions.
    Electronic copies of this Federal Register document are available
at https://www.regulations.gov. This document, as well as news releases
and other relevant information, also are available at OSHA's web page
at http://www.osha.gov. For specific information about OSHA's
Recordkeeping rule, go to the Recordkeeping page on OSHA's web page.

List of Subjects in 29 CFR Part 1904

    Health statistics, Occupational safety and health, Reporting and
recordkeeping requirements, State plans.

    Signed at Washington, DC, on July 23, 2018.
Loren E. Sweatt,
Deputy Assistant Secretary of Labor for Occupational Safety and Health.

Amendments to Regulations

    For the reasons stated in the preamble, OSHA proposes to amend part
1904 of chapter XVII of title 29 as follows:

PART 1904--[AMENDED]

Subpart E--Reporting Fatality, Injury and Illness Information to
the Government

0
1. The authority citation for subpart E of 29 CFR part 1904 continues
to read as follows:

    Authority:  29 U.S.C. 657, 673, 5 U.S.C. 553, and Secretary of
Labor's Order 1-2012 (77 FR 3912, Jan. 25, 2012).

0
2. In Sec.  1904.41, revise the section heading and paragraph (a)(1),
add paragraph (a)(4), and revise paragraph (b) to read as follows:

Sec.  1904.41  Electronic submission of Employer Identification Number
(EIN) and injury and illness records to OSHA.

    (a) * * *
    (1) Annual electronic submission of OSHA Form 300A Summary of Work-
Related Injuries and Illnesses by establishments with 250 or more
employees. If your establishment had 250 or more employees at any time
during the previous calendar year, and this part requires your
establishment to keep records, then you must electronically submit
information from OSHA Form 300A Summary of Work-Related Injuries and
Illnesses to OSHA or OSHA's designee. You must submit the information
once a year, no later than the date listed in paragraph (c) of this
section of the year after the calendar year covered by the form (for
example, 2019 for the 2018 form).
* * * * *
    (4) Electronic submission of the Employer Identification Number
(EIN). For each establishment that is subject to these reporting
requirements, you must provide the EIN used by the establishment.
* * * * *
    (b) Implementation--(1) Does every employer have to routinely
submit this information to OSHA? No, only two categories of employers
must routinely submit this information. First, if your establishment
had 250 or more employees at any time during the previous calendar
year, and this part requires your establishment to keep records, then
you must submit the required information to OSHA once a year. Second,
if your establishment had 20 or more employees but fewer than 250
employees at any time during the previous calendar year, and your
establishment is classified in an industry listed in appendix A to
subpart E of this part, then you must submit the required information
to OSHA once a year. Employers in these two categories must submit the
required information by the date listed in paragraph (c) of this
section of the year after the calendar year covered by the form (for
example, 2019 for the 2018 form). If you are not in either of these two
categories, then you must submit the information to OSHA only if OSHA
notifies you to do so for an individual data collection.
    (2) Do part-time, seasonal, or temporary workers count as employees
in the criteria for number of employees in paragraph (a) of this
section? Yes, each individual employed in the establishment at any time
during the calendar year counts as one employee, including full-time,
part-time, seasonal, and temporary workers.
    (3) How will OSHA notify me that I must submit information as part
of an individual data collection under paragraph (a)(3) of this
section? OSHA will notify you by mail if you will have to submit
information as part of an individual data collection under paragraph
(a)(3). OSHA will also announce individual data collections through
publication in the Federal Register and the OSHA newsletter, and
announcements on the OSHA website. If you are an employer who must
routinely submit the information, then OSHA will not notify you about
routine submittal.
    (4) When do I have to submit the information? If you are required
to submit information under paragraph (a)(1) or (2) of this section,
then you must submit the information once a year, by the date listed in
paragraph (c) of this section of the year after the calendar year
covered by the form (for example, 2019 for the 2018 form). If you are
submitting information because OSHA notified you to submit information
as part of an individual data collection under paragraph (a)(3) of this
section, then you must submit the information as specified in the
notification.
    (5) How do I submit the information? You must submit the
information electronically. OSHA will provide a secure website for the
electronic submission of information. For individual data collections
under paragraph (a)(3) of this section, OSHA will include the website's
location in the notification for the data collection.
    (6) Do I have to submit information if my establishment is
partially exempt from keeping OSHA injury and illness records? If you
are partially exempt from keeping injury and illness records under
Sec. Sec.  1904.1 and/or 1904.2, then you do not have to routinely
submit information under paragraphs (a)(1) and (2) of this section. You
will have to submit information under paragraph (a)(3) of this section
if OSHA informs you in writing that it will collect injury and illness
information from you. If you receive such a notification, then you must
keep the injury and illness records required by this part and submit
information as directed.
    (7) Do I have to submit information if I am located in a State Plan
State? Yes, the requirements apply to employers located in State Plan
States.
    (8) May an enterprise or corporate office electronically submit
information for its establishment(s)? Yes, if your enterprise or
corporate office had ownership of or control over one or more
establishments required to submit information under paragraph (a) of
this

section, then the enterprise or corporate office may collect and
electronically submit the information for the establishment(s).
* * * * *
[FR Doc. 2018-16059 Filed 7-27-18; 8:45 am]
 BILLING CODE 4510-26-P