[Federal Register Volume 87, Number 61 (Wednesday, March 30, 2022)]
[Proposed Rules]
[Pages 18528-18558]
[FR Doc No: 2022-06546]

Vol. 87

Wednesday,

No. 61

March 30, 2022

Part III

Department of Labor

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Occupational Safety and Health Administration

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29 CFR Part 1904

Improve Tracking of Workplace Injuries and Illnesses; Proposed Rule

Federal Register / Vol. 87 , No. 61 / Wednesday, March 30, 2022 /
Proposed Rules

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1904

[Docket No. OSHA-2021-0006]
RIN 1218-AD40

Improve Tracking of Workplace Injuries and Illnesses

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

ACTION: Proposed rule; request for comments.

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SUMMARY: OSHA is proposing to amend its occupational injury and illness
recordkeeping regulation to require certain employers to electronically
submit injury and illness information to OSHA that employers are
already required to keep under the recordkeeping regulation.
Specifically, OSHA proposes to amend its regulation to require
establishments with 100 or more employees in certain designated
industries to electronically submit information from their OSHA Forms
300, 301, and 300A to OSHA once a year. Establishments with 20 or more
employees in certain industries would continue to be required to
electronically submit information from their OSHA Form 300A annual
summary to OSHA once a year. OSHA also proposes to update the
classification system used to determine the list of industries covered
by the electronic submission requirement. In addition, the proposed
rule would remove the current requirement for establishments with 250
or more employees, not in a designated industry, to electronically
submit information from their Form 300A to OSHA on an annual basis.
OSHA intends to post the data from the proposed annual electronic
submission requirement on a public website after identifying and
removing information that reasonably identifies individuals directly,
such as individuals' names and contact information. Finally, OSHA is
proposing to require establishments to include their company name when
making electronic submissions to OSHA.

DATES: Comments must be submitted by May 31, 2022.

ADDRESSES:
    Comments: Comments, along with any submissions and attachments,
should be submitted electronically at https://www.regulations.gov,
which is the Federal e-Rulemaking Portal. Follow the instructions
online for making electronic submissions. After accessing ``all
documents and comments'' in the docket (Docket No. OSHA-2021-0006),
check the ``proposed rule'' box in the column headed ``Document Type,''
find the document posted on the date of publication of this document,
and click the ``Comment Now'' link. When uploading multiple attachments
to www.regulations.gov, please number all of your attachments, because
www.regulations.gov will not automatically number the attachments. This
will be very useful in identifying all attachments in the preamble. For
example, Attachment 1_title of your document, Attachment 2_title of
your document, Attachment 3_title of your document. For assistance
with commenting and uploading documents, please see the Frequently
Asked Questions on regulations.gov.
    Instructions: All submissions must include the agency's name and
the docket number for this rulemaking (Docket No. OSHA-2021-0006). All
comments, including any personal information you provide, are placed in
the public docket without change and may be made available online at
https://www.regulations.gov. Therefore, OSHA cautions commenters about
submitting information they do not want made available to the public,
or submitting materials that contain personal information (either about
themselves or others), such as Social Security numbers and birthdates.
    Docket: To read or download comments and other materials submitted
in the docket, go to Docket No. OSHA-2021-0006 at https://www.regulations.gov. All comments and 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 comments and submissions, including
copyrighted material, are available for inspection through the OSHA
Docket Office.\1\ Contact the OSHA Docket Office at<PHONE_NUMBER>,
(TTY<PHONE_NUMBER>) for information about materials not available
through the website, and for assistance in using the internet to locate
docket submissions.
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    \1\ Documents submitted to the docket by OSHA or stakeholders
are assigned document identification numbers (Document ID) for easy
identification and retrieval. The full Document ID is the docket
number plus a unique four-digit code. OSHA is identifying supporting
information in this document by author name, publication year, and
the last four digits of the Document ID.
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    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
https://www.osha.gov.

FOR FURTHER INFORMATION CONTACT:
    For press inquiries: Contact Frank Meilinger, Director, Office of
Communications, Occupational Safety and Health Administration, U.S.
Department of Labor; telephone<PHONE_NUMBER>; email:
[email protected].
    For general information and technical inquiries: Contact Lee Anne
Jillings, Director, Directorate of Technical Support and Emergency
Management, U.S. Department of Labor; telephone<PHONE_NUMBER>; email:
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
    A. Introduction
    B. Regulatory History
    C. Litigation Resulting From Previous Rulemakings
    D. Injury and Illness Data Collection
    E. Publication of Electronic Data
    F. Differences Between the BLS SOII and Proposed OSHA Data
Collections
    G. Benefits of Establishment-Specific, Case-Specific Data
Collection and Publication
II. Legal Authority
III. Summary and Explanation of the Proposed Rule
    A. Description of Proposed Revisions
    1. Section 1904.41(a)(1) Annual Electronic Submission of
Information From OSHA Form 300A Summary of Work-Related Injuries and
Illnesses by Establishments With 20 or More Employees in Designated
Industries
    2. Section 1904.41(a)(2) Annual Electronic Submission of OSHA
Form 300A Summary of Work-Related Injuries and Illnesses, OSHA Form
300 Log of Work-Related Injuries and Illnesses, and OSHA Form 301
Injury and Illness Incident Report by Establishments With 100 or
More Employees in Designated Industries
    3. Section 1904.41(b)(1)(i) and (ii)
    4. Section 1904.41(b)(9)
    5. Section 1904.41(b)(10)
    6. Section 1904.41(c) Reporting Dates
    B. Questions
IV. Preliminary Economic Analysis and Regulatory Flexibility
Certification
    A. Introduction
    B. Costs
    1. Section 1904.41(a)(1) Annual Electronic Submission of
Information From OSHA Form 300A Summary of Work-Related Injuries and
Illnesses by Establishments With 20 or more Employees in Designated
Industries
    2. Section 1904.41(a)(2) Annual Electronic Submission of OSHA
Form 300A Summary of Work-Related Injuries and Illnesses, OSHA Form
300 Log of Work-Related Injuries and Illnesses, and OSHA Form 301
Injury and Illness Incident Report by Establishments With 100 or

More Employees in Designated Industries
    3. Section 1904.41(b)(10)
    4. Budget Costs to the Government for the Creation of the
Reporting System, Helpdesk Assistance, and Administration of the
Electronic Submission Program
    5. Total Costs of the Rule
    C. Benefits
    D. Economic Feasibility
    E. Alternatives
    F. Regulatory Flexibility Certification
V. OMB Review Under the Paperwork Reduction Act of 1995
VI. Unfunded Mandates
VII. Federalism
VIII. State Plans
IX. Consultation and Coordination With Indian Tribal Governments
X. Public Participation
    Authority and Signature

I. Background

A. Introduction

    OSHA's regulation at 29 CFR part 1904 requires employers with more
than 10 employees in most industries to keep records of occupational
injuries and illnesses at their establishments. Employers covered by
the regulation must record each recordable employee injury and illness
on an OSHA Form 300, which is the ``Log of Work-Related Injuries and
Illnesses,'' or equivalent. The OSHA Form 300 includes information
about the employee's name, job title, date of the injury or illness,
where the injury or illness occurred, description of the injury or
illness (e.g., body part affected), and the outcome of the injury or
illness (e.g., death, days away from work, restricted work activity).
Employers must also prepare a supplementary OSHA Form 301 ``Injury and
Illness Incident Report'' or equivalent that provides additional
details about each case recorded on the OSHA Form 300. The OSHA Form
301 includes information about the employee's name and address, date of
birth, date hired, gender, the name and address of the health care
professional that treated the employee, as well as more detailed
information about where and how the injury or illness occurred. At the
end of each year, employers are required to prepare a summary report of
all injuries and illnesses on the OSHA Form 300A, which is the
``Summary of Work-Related Injuries and Illnesses,'' and post the form
in a visible location in the workplace. The OSHA Form 300A does not
contain information about individual employees, but does include
general information about an employer's workplace, such as the average
number of employees and total number of hours worked by all employees
during the calendar year.
    Section 1904.41 of the current recordkeeping regulation also
requires certain employers to electronically submit injury and illness
data to OSHA. Section 1904.41(a)(1) requires establishments with 250 or
more employees in industries that are required to routinely keep OSHA
injury and illness records to electronically submit information from
the Form 300A summary to OSHA once a year. Section 1904.41(a)(2)
requires establishments with 20-249 employees in certain designated
industries to electronically submit information from their Form 300A
summary to OSHA once a year. Also, Sec.  1904.41(a)(3) provides that,
upon notification, employers must electronically submit requested
information from their part 1904 records to OSHA. Lastly, Sec.
1904.41(a)(4) requires each establishment that must electronically
submit injury and illness information to OSHA to also provide their
Employer Identification Number (EIN) in their submittal.
    Under this proposed rule, establishments with 20 or more employees
in certain designated industries (listed in appendix A to subpart E)
would continue to electronically submit information from their Form
300A annual summary to OSHA once a year. However, the proposed rule
would eliminate the requirement for all establishments with 250 or more
employees in industries that are required to routinely keep OSHA injury
and illness records to electronically submit information from the Form
300A to OSHA. Instead, establishments with 100 or more employees in
certain designated industries (listed in appendix B to subpart E) would
be required to electronically submit information from their OSHA Forms
300, 301, and 300A to OSHA once a year. OSHA also proposes to update
the industry classification system used for the proposed list of
designated industries in appendix A and B to subpart E. In addition,
OSHA is proposing to require establishments to include their company
name when making electronic submissions to OSHA.
    The proposed requirement for establishments with 20 or more
employees in certain designated industries to electronically submit
information from their Form 300A to OSHA once a year is essentially the
same as the current regulation. For establishments with 100 or more
employees in certain designated industries, the proposed requirement to
electronically submit information from their Forms 300 and 301 to OSHA
on an annual basis represents a change from the current regulation. The
proposed requirement would provide systematic access for OSHA to the
establishment-specific, case-specific injury and illness information
that these establishments are already required to collect.
    Additionally, OSHA intends to post the collected establishment-
specific, case-specific injury and illness information online. As
discussed in more detail below, the agency will seek to minimize the
possibility that worker information, such as name and contact
information, will be released, through multiple efforts, including
limiting the worker information collected, designing the collection
system to provide extra protections for some of the information that
employers would be required to submit under the proposal, withholding
certain fields from public disclosure, and using automated software to
identify and remove information that reasonably identifies individuals
directly. OSHA does not intend to include information that reasonably
identifies individuals directly, such as employee name, contact
information, and name of physician or health care professional, in the
published information. The expanded public access to establishment-
specific, case-specific injury and illness data would allow employers,
employees, potential employees, employee representatives, customers,
potential customers, researchers, and the general public to make
informed decisions about the workplace safety and health at a given
establishment, and this accessibility will ultimately result in the
reduction of occupational injuries and illnesses.
    OSHA estimates that this proposed rule would have economic costs of
$4.3 million per year, including $3.9 million per year to the private
sector, with costs of $81 per year for affected establishments with 100
or more employees in designated industries. The agency believes that
the annual benefits, while unquantified, would significantly exceed the
annual costs.
    OSHA seeks comment on this proposal.

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, restricted work or transfer to
another job, medical treatment beyond first aid, or diagnosis of a
significant injury or illness by a physician or other licensed

health care professional (29 CFR 1904.7).
    On July 29, 1977, OSHA amended these regulations to partially
exempt businesses having ten or fewer employees during the previous
calendar year from the requirement to record occupational injuries and
illnesses (42 FR 38568). Then, on December 28, 1982, OSHA amended the
regulations again to partially exempt establishments in certain lower-
hazard industries from the requirement to record occupational injuries
and illnesses (47 FR 57699).\2\ OSHA also amended the recordkeeping
regulations in 1994 (Reporting of Fatality or Multiple Hospitalization
Incidents, 59 FR 15594) and 1997 (Reporting Occupational Injury and
Illness Data to OSHA, 62 FR 6434). Under the version of Sec.  1904.41
added by the 1997 final rule, OSHA began requiring certain employers to
submit their 300A data to OSHA annually through the OSHA Data
Initiative (ODI). Through the ODI, OSHA collected data on injuries and
acute illnesses attributable to work-related activities in the private
sector from approximately 80,000 establishments in selected high-hazard
industries. The agency used these data to calculate establishment-
specific injury and illness rates, and, in combination with other data
sources, to target enforcement and compliance assistance activities.
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    \2\ All employers covered by the Occupational Safety and Health
Act (the ``OSH Act'' or ``Act'') are covered by OSHA's recordkeeping
regulation. However, most employers do not have to keep OSHA injury
and illness records unless OSHA or the Bureau of Labor Statistics
(BLS) informs them in writing that they must keep records. For
example, employers with ten or fewer employees, as well as
businesses with establishments in certain industries, are partially
exempt from keeping OSHA injury and illness records. In addition,
all employers covered by the OSH Act, including those that are
partially exempt from keeping injury and illness records, are still
required to report work-related fatalities, in-patient
hospitalizations, amputations, and losses of an eye to OSHA within
specified timeframes under 29 CFR 1904.39.
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    On January 19, 2001, OSHA issued a final rule amending its
requirements for the recording and reporting of occupational injuries
and illnesses (29 CFR parts 1904 and 1952), along with the forms
employers use to record those injuries and illnesses (66 FR 5916). The
final rule also updated the list of industries that are partially
exempt from recording occupational injuries and illnesses.
    On September 18, 2014, OSHA again amended the regulations to
require employers to report work-related fatalities and severe
injuries--in-patient hospitalizations, amputations, and losses of an
eye--to OSHA and to allow electronic reporting of these events (79 FR
56130). The final rule also revised the list of industries that are
partially exempt from recording occupational injuries and illnesses.
    On May 12, 2016, OSHA amended the regulations on recording and
reporting occupational injuries and illnesses to require employers, on
an annual basis, to submit electronically to OSHA injury and illness
information that employers are already required to keep under part 1904
(81 FR 29624). Under the 2016 revisions, establishments with 250 or
more employees that are routinely required to keep records were
required to electronically submit information from their OSHA Forms
300, 300A, and 301 to OSHA or OSHA's designee once a year, and
establishments with 20 to 249 employees in certain designated
industries were required to electronically submit information from
their OSHA annual summary (Form 300A) to OSHA or OSHA's designee once a
year. In addition, that final rule required employers, upon
notification, to electronically submit information from part 1904
recordkeeping forms to OSHA or OSHA's designee. These provisions became
effective on January 1, 2017, with an initial submission deadline of
July 1, 2017, for 2016 Form 300A data. That submission deadline was
subsequently extended to December 15, 2017 (82 FR 55761). The deadline
for electronic submission of information from OSHA Forms 300 and 301
was July 1, 2018. Because of a subsequent rulemaking, OSHA never
received the data submissions from Forms 300 and 301 that the 2016
final rule anticipated.
    On January 25, 2019, OSHA issued a final rule that amended the
recordkeeping regulations to remove the requirement for establishments
with 250 or more employees that are routinely required to keep records
to electronically submit information from their OSHA Forms 300 and 301
to OSHA or OSHA's designee once a year. These establishments are
currently required to electronically submit only information from the
OSHA 300A annual summary. The final rule also added a requirement for
covered employers to submit their Employer Identification Number (EIN)
electronically along with their injury and illness data submission (83
FR 36494, 84 FR 380-406).

C. Litigation Resulting From Previous Rulemakings

    Both the 2016 and 2019 OSHA final rules that addressed the
electronic submission of injury and illness data were challenged in
court. In Texo ABC/ABG et al. v. Acosta (N.D. Tex.), and NAHB et al. v.
Acosta (W.D. Okla.), industry groups challenged OSHA's 2016 final rule
that required establishments with 250 or more employees to
electronically submit data from their OSHA Forms 300 and 301 to OSHA
(as well as other requirements not relevant to this rulemaking). The
complaints alleged that the publication of establishment-specific
injury and illness data would lead to misuse of confidential and
proprietary information by the public and special interest groups. The
complaints also alleged that publication of the data exceeds OSHA's
authority under the Occupational Safety and Health Act (the ``OSH Act''
or ``Act'') and is unconstitutional under the First Amendment to the
U.S. Constitution. After OSHA published a notice of proposed rulemaking
on July 30, 2018 (83 FR 36494), proposing to rescind the 300 and 301
data submission requirement, the Texo case was administratively closed,
and the plaintiffs in the NAHB case dropped their claims relating to
the 300 and 301 data submission requirement after the 2019 final rule
was published (and moved forward with their other claims, which are
still pending in the Western District of Oklahoma).
    In Public Citizen Health Research Group et al. v. Pizella (No.
1:19-cv-00166) and State of New Jersey et al. v. Pizella (No. 1:19-cv-
00621), a group of public health organizations and a group of states
filed separate lawsuits challenging OSHA's 2019 final rule rescinding
the requirement for certain employers to submit the data from OSHA
Forms 300 and 301 to OSHA electronically each year. The District Court
for the District of Columbia resolved the two cases in a consolidated
opinion and held that rescinding the provision was within the agency's
discretion. The court concluded the record supported OSHA's
determination that costly manual review of collected 300 and 301 data
would be needed to avoid a meaningful risk of exposing sensitive worker
information to public disclosure. The court also determined that OSHA
provided adequate notice of the estimated costs of manually reviewing
the data for sensitive information, and that the final rule was a
logical outgrowth of the rulemaking. Finally, the court upheld OSHA's
conclusion that the uncertain benefits of collecting the 300 and 301
data did not justify diverting OSHA's resources from other efforts, and
the court rejected the plaintiffs' assertion that OSHA's reasons for
the 2019 final rule were internally inconsistent.
    Additionally, since 2020, the Department of Labor (DOL) has
received

several adverse decisions regarding the release of electronically
submitted 300A data under the Freedom of Information Act (FOIA). In
each of the cases, OSHA argued that electronically submitted 300A
injury and illness data was covered under the confidentiality exemption
in FOIA Exemption 4. Two courts, one in the U.S. District Court for the
Northern District of California and another in the U.S. District Court
for the District of Columbia, disagreed with OSHA's position. See,
Center for Investigative Reporting, et al., v. Department of Labor, No.
4:18-cv-02414-DMR, 2020 WL 2995209 (N.D. Cal. June 4, 2020); Public
Citizen Foundation v. United States Department of Labor, et al., No.
1:18-cv-00117 (D.D.C. June 23, 2020). In addition, on July 6, 2020, the
Department received an adverse ruling from a magistrate judge in the
Northern District of California in a FOIA case involving Amazon
fulfillment centers. In that case, plaintiffs sought the release of
individual 300A forms, which consisted of summaries of Amazon's work-
related injuries and illnesses and which were provided to OSHA
compliance officers during specific OSHA inspections of Amazon
fulfillment centers in Ohio and Illinois. See, Center for Investigative
Reporting, et al., v. Department of Labor, No. 3:19-cv-05603-SK, 2020
WL 3639646 (N.D. Cal. July 6, 2020).
    In holding that FOIA Exemption 4 was inapplicable, the courts
rejected OSHA's position that electronically submitted 300A injury and
illness data is covered under the confidentiality exemption in FOIA
Exemption 4. The decisions noted that the 300A form is posted in the
workplace for three months and that there is no expectation that the
employer must keep these data confidential or private. As a result,
OSHA provided the requested 300A data to the plaintiffs, and initiated
a policy to post collected 300A data on its public website. The data
are available at https://www.osha.gov/Establishment-Specific-Injury-and-Illness-Data and include the submissions for calendar years 2016,
2017, 2018, 2019, and 2020.

D. Injury and Illness Data Collection

    Currently, two U.S. Department of Labor data collections request
and compile information from the OSHA injury and illness records
certain employers are required to keep under 29 CFR part 1904: The
annual collection conducted by OSHA under 29 CFR 1904.41 (Electronic
Submission of Employer Identification Number (EIN) and Injury and
Illness Records), and the annual Survey of Occupational Injuries and
Illnesses (SOII) conducted by BLS under 29 CFR 1904.42. This proposed
rule would amend the current regulation at Sec.  1904.41. It would not
change the SOII or the authority for the SOII set forth in Sec.
1904.42.
    The primary purpose of the SOII is to provide nationally-
representative annual estimates of the rates and numbers of work-
related non-fatal injuries and illnesses in the United States, and on
how these statistics vary by incident, industry, geography, occupation,
and other characteristics. Title 44 U.S.C. 3572 prohibits BLS from
releasing establishment-specific and case-specific data to the general
public or to OSHA. OSHA only has access to the publicly-available
aggregate information from the injury and illness records collected
through the BLS SOII.
    The BLS has modified their collection to allow respondents that
have already provided their Form 300A data to OSHA to provide their
OSHA identification number (OSHA ID) to import to BLS the data that
they have submitted to the OSHA ITA in that same year. Under this data-
sharing feature, if BLS can successfully match establishment
information with information reported to OSHA, data reported by the
respondent to the OSHA ITA are automatically imported into the BLS SOII
internet Data Collection Facility (IDCF). Imported data are taken from
the OSHA 300A annual summary. Additional information may need to be
entered manually to complete the SOII submission. In the 2021
collection for the BLS SOII, roughly 31,000 establishments had an
opportunity to use this data-sharing feature for their OSHA Form 300A
data, i.e., they were submitting to both the OSHA ITA and the BLS SOII.
Of these roughly 31,000 establishments, 9,479 establishments provided
their OSHA ID to the BLS SOII collection for BLS to try to match for
the data-sharing feature. Of these 9,479 establishments, 4,716
establishments that passed BLS's data quality checks had their OSHA-
submitted data automatically imported into the BLS SOII IDCF via the
data-sharing feature. The Department is continuing to evaluate
opportunities to further reduce duplicative reporting. To this end, BLS
will evaluate the feasibility of using this same model for the
additional information that would be required by this proposed rule.
    Authority for the SOII comes from 29 CFR 1904.42, Requests from the
Bureau of Labor Statistics for data. Each year, BLS collects data from
Forms 300, 301, and 300A from a scientifically-selected probability
sample of about 230,000 establishments, covering nearly all private-
sector industries, as well as state and local government. Employers may
submit their data on paper forms or electronically. BLS releases the
aggregated data in November of the year following the data year (e.g.,
November 2020 for 2019 data).
    As discussed above, the OSHA recordkeeping regulation has required
certain employers to submit injury and illness information to OSHA
since 1997. Currently, Sec.  1904.41, Electronic submission of Employer
Identification Number (EIN) and injury and illness records to OSHA,
requires two groups of establishments to annually submit information
from the OSHA Form 300A Annual Summary: Establishments with 20-249
employees in industries included in appendix A to subpart E of part
1904, and establishments with 250 or more employees in industries that
are routinely required to keep part 1904 injury and illness records.
For purposes of Sec.  1904.41, the number of employees at a given
establishment is based on the number of individuals employed at the
establishment at any time during the previous calendar year, including
full-time, part-time, seasonal, and temporary workers. In addition,
data submissions under Sec.  1904.41 are typically limited to
establishments in industries with high injury and illness rates. For
example, while current Sec.  1904.41(a)(1) covers establishments with
20-249 employees, only establishments in certain designated industries
are required to electronically submit information from their Form 300A
under this provision.
    The primary purpose of the electronic submission requirements in
Sec.  1904.41 is to enable OSHA to focus its enforcement and compliance
assistance efforts on individual workplaces with ongoing serious safety
and health problems, as identified by the occupational injury and
illness rates at those workplaces. An establishment's submission of
information from its OSHA Form 300A Annual Summary provides summary
information about injuries and illnesses at that specific
establishment, but not about specific cases of injury or illness at
that establishment. In contrast, the OSHA Form 300 Log of Work-Related
Injuries and Illnesses and Form 301 Injury and Illness Incident Report
provide information about specific cases of injury or illness.

E. Publication of Electronic Data

    OSHA intends to make much of the data it collects public. As
discussed below, the publication of specific data elements will in part
be restricted by applicable federal law, including provisions under the
Freedom of Information Act (FOIA), as well as specific provisions
within part 1904.

OSHA will make the following data from the OSHA Form 300 and 301
available in a searchable online database:
    Form 300 (the Log)--All collected data fields on the 300 Log will
generally be made available on OSHA's website. OSHA is proposing to
collect all of the fields except employee name (column B). OSHA
currently collects these data during inspections and maintains them as
part of the enforcement case file. However, the agency does not
currently conduct a systematic collection of the information on the 300
Log. OSHA generally releases copies of the 300 Logs maintained in
inspection files in response to FOIA requests after redacting employee
names (column B).
    OSHA's regulations require employers to provide employees, former
employees, their representatives, and their authorized employee
representatives with access to the 300 Log (29 CFR 1904.32(b)(2)).
Specifically, when an employee, former employee, personal
representative, or authorized employee representative asks an employer
for copies of that employer's current or stored OSHA 300 Log(s) for an
establishment the employee or former employee has worked in, the
employer must give the requester a copy of the relevant OSHA 300 Log(s)
by the end of the next business day (29 CFR 1904.32(b)(2)(ii)). Once
the copy is accessed, OSHA's recordkeeping regulation does not place
any limitations on the use or release of the information by employees
and employee representatives. Moreover, as explained in OSHA's 2001
final rule amending its requirements for the recording and reporting of
occupational injuries and illnesses, while agency policy is that
employees and their representatives with access to records should treat
the information contained therein as confidential except as necessary
to further the purposes of the Act, the Secretary lacks statutory
authority to enforce such a policy against employees and
representatives (see 66 FR 6056-57 (citing e.g., 29 U.S.C. 658, 659)
(Act's enforcement mechanisms directed solely at employers)). In other
words, as OSHA explained in its 2016 recordkeeping final rule,
employees and their representatives can make the data they have
accessed public if they wish to do so (see 81 FR 29684). However, there
are some restrictions on what employers may do with these data. Under
Sec.  1904.29(b)(10), if employers choose to voluntarily disclose the
Forms to persons other than government representatives, employees,
former employees, or authorized representatives (as required by
Sec. Sec.  1904.35 and 1904.40), the employer must remove or hide the
employees' names and other personally identifying information, with
certain exceptions as spelled out in OSHA's regulations.
    Form 301 (Incident Report)--All collected data fields on the right-
hand side of the form (Fields 10 through 18) will generally be made
available. The agency currently occasionally collects the form for
enforcement case files. Section 1904.35(b)(2)(v)(B) prohibits employers
from releasing the information in Fields 1 through 9 (the left-hand
side of the form) to individuals other than the employee or former
employee who suffered the injury or illness and his or her personal
representatives. Similarly, OSHA will not publish establishment-
specific data from the left side of Form 301. OSHA does not release
data from Fields 1 through 9 in response to FOIA requests. The agency
does not currently conduct a systematic collection of the information
on the Form 301. However, the agency does review the entire Form 301
during some workplace inspections and occasionally collects the form
for inclusion in the enforcement case file. Note that OSHA is proposing
not to collect (and therefore could not publish) Field 1 (employee
name), Field 2 (employee address), Field 6 (name of treating physician
or health care provider), or Field 7 (name and address of non-workplace
treating facility). As above, under Sec.  1904.35(a)(3), employers must
provide access to injury and illness records for their employees and
employees' representatives, as described in Sec.  1904.35(b)(2). Also,
as above, the OSHA recordkeeping regulation does not place limitations
on the use or release of the information obtained by employees and
employee representatives.

F. Differences Between the BLS SOII and Proposed OSHA Data Collections

    The BLS SOII is an establishment-based survey used to estimate
nationally-representative incidence rates and counts of workplace
injuries and illnesses. It also provides detailed case and demographic
data for cases that involve one or more days away from work (DAFW) and
for days of job transfer and restriction (DJTR).
    SOII estimates the number and frequency (incidence rates) of
workplace injuries and illnesses based on recordkeeping logs kept by
employers during the year. These records reflect not only the year's
injury and illness experience, but also the employer's understanding of
which cases are work-related under recordkeeping rules promulgated by
OSHA. Although SOII uses OSHA's recordkeeping rules to facilitate
convenient collection of data, it is not administered by OSHA. In
addition, the scope of SOII encompasses industries not required by OSHA
to routinely keep injury and illness records (i.e., industries listed
in appendix A to subpart B of part 1904). Information collected through
the program is used for purely statistical purposes, cannot be viewed
by OSHA, and cannot be used for any regulatory purpose. Besides injury
and illness counts, survey respondents also are asked to provide
additional information for the subset of nonfatal cases that involved
at least 1 day away from work or job transfer or restriction. Employers
answer several questions about these cases, including the demographics
of the worker, the nature of the disabling condition, the event and
source producing that condition, and the part of body affected. A few
of the data elements are optional for employers, most notably race and
ethnicity; this resulted in 40 percent of the cases involving days away
from work for which race and ethnicity were not reported in the 2016
SOII.\3\
---------------------------------------------------------------------------

    \3\ U.S. Bureau of Labor Statistics, Handbook of Methods, Survey
of Occupational Injuries and Illnesses, p. 12 (last modified date
October 30, 2020); https://www.bls.gov/opub/hom/soii/pdf/soii.pdf.
---------------------------------------------------------------------------

    The presentation of SOII data is released in the fall and contains
two data components. One, sometimes referred to as the summary,
provides estimates of numbers and incidence rates of employer-reported
nonfatal injuries and illnesses at the industry level for all types of
cases. A second, sometimes referred to as the case and demographics
data, details case circumstances and worker characteristics for the
subset of the cases that involved days away from work.\4\ Prepared
tables containing the data can be found for industry data at https://www.bls.gov/iif/oshsum.htm and for case and demographics at https://www.bls.gov/iif/oshcdnew.htm. A schedule of releases from the Injuries,
Illnesses, and Fatalities program, which includes SOII, can be found at
https://www.bls.gov/iif/osh_nwrl.htm.
---------------------------------------------------------------------------

    \4\ BLS started collecting nationally representative job
transfer and restriction cases in January 2022. BLS will begin
publishing biennial case and demographic estimates using these data
in November 2023. BLS will continue to publish summary industry
estimates annually.
---------------------------------------------------------------------------

    In contrast, under the current data collection, OSHA annually
collects information from the OSHA Form 300A Annual Summary from two
groups of establishments:
    1. Under Sec.  1904.41(a)(1), from establishments with 20 or more

employees in industries included in appendix A to subpart E of part
1904, and
    2. under Sec.  1904.41(a)2), from establishments with 250 or more
employees in all industries that are routinely required to keep OSHA
injury and illness records.
    OSHA publishes this information on its website at https://www.osha.gov/Establishment-Specific-Injury-and-Illness-Data. OSHA is
proposing to revise this data collection to include information from
the OSHA Form 300 Log and Form 301 Incident Report from establishments
with 100 or more employees in certain industries.

G. Benefits of Establishment-Specific, Case-Specific Data Collection
and Publication

    As discussed in more detail below, the proposed rule would amend
Sec.  1904.41 to require establishments with 100 or more employees in
certain designated industries to electronically submit injury and
illness information from all three recordkeeping forms to OSHA once a
year (see proposed Sec.  1904.41(a)(2)). All of the establishments that
would be subject to this proposed section are already required to
annually submit information from their Form 300A, but these
establishments would be newly required to also annually submit certain
information from their Forms 300 and 301.
    The proposed requirement for the electronic submission of
establishment-specific, case-specific information from the Forms 300
and 301, and the subsequent publication of certain establishment-
specific, case-specific data elements would have numerous benefits.
    The main purpose of the proposed rule is to prevent worker injuries
and illnesses through the collection and use of timely, establishment-
specific injury and illness data. With the information obtained through
this proposed rule, employers, employees, employee representatives, the
government, and researchers would be better able to identify and
mitigate workplace hazards and thereby prevent worker injuries and
illnesses.
    The proposed rule would support OSHA's statutory directive to
``assure so far as possible every working man and woman in the Nation
safe and healthful working conditions and to preserve our human
resources'' (29 U.S.C. 651(b)) ``by providing for appropriate reporting
procedures with respect to occupational safety and health which
procedures will help achieve the objectives of this Act and accurately
describe the nature of the occupational safety and health problem'' (29
U.S.C. 651(b)(12)).
    The importance of this rule in preventing worker injuries and
illnesses can be understood in the context of workplace safety and
health in the United States today. The number of workers injured or
made ill on the job remains unacceptably high. According to the SOII,
each year employees experience 3 million serious (requiring more than
first aid) injuries and illnesses at work, and this number is widely
recognized to be an undercount of the actual number of occupational
injuries and illnesses that occur annually. OSHA currently has limited
information about the injury/illness risks facing workers in specific
establishments, and the proposed rule would increase the agency's
ability to focus resources on those workplaces where workers are at
high risk.
    However, even with improved targeting, OSHA Compliance Safety and
Health Officers can inspect only a small proportion of the nation's
workplaces each year, and it would take many decades to inspect each
covered workplace in the nation even once. As a result, to reduce
worker injuries and illnesses, it is of great importance for OSHA to
increase its impact on the many thousands of establishments where
workers are being injured or made ill but which OSHA does not have the
resources to inspect. Public access to the collected establishment-
specific, case-specific information may encourage employers to abate
hazards and thereby prevent injuries and illnesses, so that the
employer's establishment can be seen by members of the public,
including investors and job seekers, as one in which the risk to
workers' safety and health is low.
    A requirement for the electronic submission of establishment-
specific, case-specific recordkeeping data would help OSHA encourage
employers to prevent worker injuries and illnesses by greatly expanding
OSHA's access to the establishment-specific, case-specific information
employers are already required to record under part 1904. As described
in the previous section, OSHA currently does not have systematic access
to this information. OSHA has limited access to case-specific,
establishment-specific injury and illness information in a particular
year. Typically, OSHA only has access if the establishment was
inspected.
    The proposed rule's provisions requiring regular electronic
submission of case-specific injury and illness data would allow OSHA to
obtain a much larger data set of establishment-specific, case-specific
information about injuries and illnesses in the workplace. This
information would help OSHA use its enforcement and compliance
assistance resources more effectively by enabling OSHA to identify the
workplaces where workers are at high risk.
    For example, OSHA could send hazard-specific educational materials
to employers who report high rates of injuries or illnesses related to
those hazards. In addition, OSHA would be able to use the information
to identify emerging hazards, support an agency response, and reach out
to employers whose workplaces might include those hazards. The data
collection would also enable the agency to focus its Emphasis Program
inspections on establishments with specific hazards, such as trench and
excavation collapses (see CPL 02-00-161, October 1, 2018). OSHA would
be better able to refer employers who report certain types of injuries/
illnesses to OSHA's free on-site consultation program. OSHA would also
be able to add specific hazards or types of injury or illness to the
Site Specific Targeting (SST) program, which currently is based on
establishments' overall injury/illness rates.
    The new collection would provide establishment-specific, case-
specific injury and illness data for analyses that are not currently
possible. For example, OSHA could analyze the data collected under this
system to assess changes in types and rates of particular injuries or
illnesses in a particular industry over time. It would also enable OSHA
to conduct rigorous evaluations of different types of programs,
initiatives, and interventions in different industries and geographic
areas, enabling the agency to become more effective and efficient.
    In addition, publication of establishment-specific, case-specific
injury and illness data would benefit the majority of employers who
want to prevent injuries and illnesses among their employees, through
several mechanisms. First, the information would enable interested
parties to gauge the full range of injury and illness case types at the
establishment. Second, employers could compare case-specific injury and
illness information at their establishments to those at comparable
establishments, and set workplace safety/health goals benchmarked to
the establishments they consider most comparable. Third, online
availability of case-specific, establishment-specific injury and
illness information would allow employees to compare their own
workplaces to the safest workplaces in their industries. In addition,
if employees were able to preferentially choose employment at the
safest

workplaces in their industries, then employers might take steps to
improve workplace safety and health (preventing injuries and illnesses
from occurring) in order to attract and retain employees.
    Fourth, access to these data could improve the workings of the
labor market by providing more complete information to job seekers,
and, as a result, encourage employers to abate hazards in order to
attract more in-demand employees. Using data newly accessible under
this proposed rule, potential employees could examine the case-specific
information at establishments where they are interested in working, to
help them make a more informed decision about a future place of
employment. This could also encourage employers with more hazardous
workplaces in a given industry to make improvements in workplace safety
and health, because potential employees, especially the ones whose
skills are most in demand, might be reluctant to work at more hazardous
establishments. In addition, this would help address a problem of
information asymmetry in the labor market, where the businesses with
the greatest problems have the lowest incentive to self-disclose.
    Disclosure of and access to case-specific injury and illness data
have the potential to improve research on the distribution and
determinants of workplace injuries and illnesses, and therefore to
prevent workplace injuries and illnesses from occurring. Using data
collected under the proposed rule, researchers might identify
previously unrecognized patterns of injuries and illnesses across
establishments where workers are exposed to similar hazards. Such
research would be especially useful in identifying hazards that result
in a small number of injuries or illnesses in each establishment but a
large number overall, due to a wide distribution of those hazards in a
particular area, industry, or establishment type. Case-specific data
made available under this proposed rule could also allow researchers to
identify patterns of injuries or illnesses that are masked by the
aggregated, establishment-level data currently available.
    The availability of establishment-specific injury and illness data
would also be of great use to county, state and territorial Departments
of Health and other public institutions charged with injury and illness
surveillance. In particular, aggregation of case-specific injury and
illness data from similar establishments could facilitate
identification of newly-emerging hazards. Public health surveillance
programs must currently primarily rely on reporting of cases seen by
medical practitioners, any one of whom would rarely see enough cases to
identify an occupational etiology.
    Workplace safety and health professionals might use the case-
specific data to identify establishments whose injury/illness records
suggest that the establishments would benefit from their services. In
general, online access to this large database of case-specific injury
and illness information could support the development of innovative
ideas for improving workplace safety and health, and would allow
everyone with a stake in workplace safety and health to participate in
improving occupational safety and health.
    Furthermore, because the case-specific data would be publicly
available, industries, trade associations, unions, and other groups
representing employers and workers would be able to evaluate the
effectiveness of privately-initiated injury and illness prevention
initiatives that affect groups of establishments. In addition, linking
these data with data residing in other administrative data sets would
enable researchers to conduct rigorous studies that would increase our
understanding of injury causation, prevention, and consequences. For
example, by combining these data with data collected in the Annual
Survey of Manufactures (conducted by the United States Census Bureau),
it would be possible to examine the impact of a range of management
practices on specific injury and illness types, and in turn the impact
of those injury and illness types on the financial status of employers.
    And finally, public access to these data would also enable software
developers to develop tools that facilitate use of these data by
employers, workers, researchers, consumers and others.

II. Legal Authority

    OSHA is issuing this proposed rule pursuant to authority expressly
granted by several provisions of the OSH Act that address the recording
and reporting of occupational injuries and illnesses. Section 2(b)(12)
of the OSH Act states that one of the purposes of the OSH Act is to
``assure so far as possible . . . safe and healthful working conditions
. . . by providing for appropriate reporting procedures . . . which
will help achieve the objective of th[e] Act and accurately describe
the nature of the occupational safety and health problem.'' 29 U.S.C.
651(b)(12). Section 8(c)(1) requires each employer to ``make, keep and
preserve, and make available to the Secretary [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)).
    Section 8(g)(1) authorizes the Secretary ``to compile, analyze, and
publish, whether in summary or detailed form, all reports or
information obtained under this section.'' Section 8(g)(2) of the Act
broadly empowers the Secretary ``to prescribe such rules and
regulations as he may deem necessary to carry out his responsibilities
under th[e] Act.'' 29 U.S.C. 657(g)(2).
    Section 24 of the OSH Act (29 U.S.C. 673) contains a similar grant
of authority. This section requires the Secretary to ``develop and
maintain an effective program of collection, compilation, and analysis
of occupational safety and health statistics'' and ``compile accurate
statistics on work injuries and illnesses which shall include all
disabling, serious, or significant injuries and illnesses . . .'' (29
U.S.C. 673(a)). Section 24 also requires employers to ``file such
reports with the Secretary as he shall prescribe by regulation'' (29
U.S.C. 673(e)). These reports are to be based on ``the records made and
kept pursuant to Sec.  8(c) of this Act'' (29 U.S.C. 673(e)).
    Section 20 of the Act, 29 U.S.C. 669, contains additional implicit
authority for collecting and disseminating data on occupational
injuries and illnesses. Section 20(a) empowers the Secretaries of Labor
and Health and Human Services to consult on research concerning
occupational safety and health problems, and provides for the use of
such research, ``and other information available,'' in developing
criteria on toxic materials and harmful physical agents. Section 20(d)
states that ``[i]nformation obtained by the Secretary . . . under this
section shall be disseminated by the Secretary to employers and
employees and organizations thereof.''

    Further support for the Secretary's authority to require employers
to keep and submit records of work-related illnesses and injuries can
be found in the Congressional Findings and Purpose at the beginning of
the OSH Act (29 U.S.C. 651). In this section, Congress declares the
overarching purpose of the Act to be ``to assure so far as possible
every working man and woman in the Nation safe and healthful working
conditions'' (29 U.S.C. 651(b)). One of the ways in which the Act is
meant to achieve this goal is ``by providing for appropriate reporting
procedures. . .[that] will help achieve the objectives of this Act and
accurately describe the nature of the occupational safety and health
problem'' (29 U.S.C. 651(b)(12)).
    The OSH Act authorizes the Secretary of Labor to issue two types of
occupational safety and health rules: Standards and regulations.
Standards, which are authorized by section 6 of the Act, aim to correct
particular identified workplace hazards, while regulations further the
general enforcement and detection purposes of the OSH Act (see
Workplace Health & Safety Council v. Reich, 56 F.3d 1465, 1468 (D.C.
Cir. 1995) (citing La. Chem. Ass'n v. Bingham, 657 F.2d 777, 781-82
(5th Cir. 1981)); United Steelworkers of Am. v. Auchter, 763 F.2d 728,
735 (3d Cir. 1985)). Recordkeeping requirements promulgated under the
Act are characterized as regulations (see 29 U.S.C. 657 (using the term
``regulations'' to describe recordkeeping requirements); see also
Workplace Health & Safety Council v. Reich, 56 F.3d 1465, 1468 (D.C.
Cir. 1995) (citing La. Chem. Ass'n. v. Bingham, 657 F.2d 777, 781-82
(5th Cir. 1981); United Steelworkers of Am. v. Auchter, 763 F.2d 728,
735 (3d Cir. 1985)).
    This proposed rule does not infringe on employers' Fourth Amendment
rights. The Fourth Amendment protects against searches and seizures of
private property by the government, but only when a person has a
``legitimate expectation of privacy'' in the object of the search or
seizure (Rakas v. Illinois, 439 U.S. 128, 143-47 (1978)). There is
little or no expectation of privacy in records that are required by the
government to be kept and made available (Free Speech Coalition v.
Holder, 729 F. Supp. 2d 691, 747, 750-51 (E.D. Pa. 2010) (citing
cases); United States v. Miller, 425 U.S. 435, 442-43 (1976); cf.
Shapiro v. United States, 335 U.S. 1, 33 (1948) (no Fifth Amendment
interest in required records)). Accordingly, the Fourth Circuit held,
in McLaughlin v. A.B. Chance, that an employer has little expectation
of privacy in the records of occupational injuries and illnesses kept
pursuant to OSHA regulations, and must disclose them to the agency on
request (842 F.2d 724, 727-28 (4th Cir. 1988)).
    Even if there were an expectation of privacy, the Fourth Amendment
prohibits only unreasonable intrusions by the government (Kentucky v.
King, 131 S. Ct. 1849, 1856 (2011)). The information submission
requirement in this proposed rule is reasonable. The proposed
requirement serves a substantial government interest in the health and
safety of workers, has a strong statutory basis, and rests on
reasonable, objective criteria for determining which employers must
report information to OSHA (see New York v. Burger, 482 U.S. 691, 702-
703 (1987)).
    OSHA notes that two courts have held, contrary to A.B. Chance, that
the Fourth Amendment requires prior judicial review of the
reasonableness of an OSHA field inspector's demand for access to injury
and illness logs before the agency could issue a citation for denial of
access (McLaughlin v. Kings Island, 849 F.2d 990 (6th Cir. 1988); Brock
v. Emerson Electric Co., 834 F.2d 994 (11th Cir. 1987)). Those
decisions are inapposite here. The courts based their rulings on a
concern that field enforcement staff had unbridled discretion to choose
the employers they would inspect and the circumstances in which they
would demand access to employer records. The Emerson Electric court
specifically noted that in situations where ``businesses or individuals
are required to report particular information to the government on a
regular basis[,] a uniform statutory or regulatory reporting
requirement [would] satisf[y] the Fourth Amendment concern regarding
the potential for arbitrary invasions of privacy'' (834 F.2d at 997,
n.2). This proposed rule, like that hypothetical, establishes general
reporting requirements based on objective criteria and does not vest
field staff with any discretion. The employers that are required to
report data, the information they must report, and the time when they
must report it are clearly identified in the text of the rule and in
supplemental notices that will be published pursuant to the Paperwork
Reduction Act.
    Additionally, with regard to publication of collected data, FOIA
generally supports OSHA's intention to publish information on a
publicly available website. FOIA provides that certain Federal agency
records must be routinely made ``available for public inspection and
copying'' in agency reading rooms. See, 5 U.S.C. 552(a)(2) (2000).
These reading rooms contain basic agency materials such as agency
manuals, specific agency policy statements, and opinions developed in
the adjudication of cases. Subsection (a)(2) provides that agencies
must include any records processed and disclosed in response to a FOIA
request that ``the agency determines have become or are likely to
become the subject of subsequent requests for substantially the same
records.''
    Based on its experience, OSHA believes that the recordkeeping
information from the Forms 300, 301, and 300A required to be submitted
under this proposed rule will likely be the subject of multiple FOIA
requests in the future. As such, the agency plans to place the
recordkeeping information that will be posted on the public OSHA
website in its Electronic FOIA Library. Since agencies may ``withhold''
(i.e., not make available) a record (or portion of such a record) if it
falls within a FOIA exemption, just as they can do in response to FOIA
requests, OSHA will place the published information in its FOIA Library
consistent with all FOIA exemptions.

III. Summary and Explanation of the Proposed Rule

A. Description of Proposed Revisions

1. Section 1904.41(a)(1)--Annual Electronic Submission of Information
From OSHA Form 300A Summary of Work-Related Injuries and Illnesses by
Establishments With 20 or More Employees in Designated Industries
    Under proposed Sec.  1904.41(a)(1), establishments that had 20 or
more employees at any time during the previous calendar year, and are
classified in an industry listed in appendix A to subpart E, would be
required to electronically submit information from their OSHA Form 300A
to OSHA or OSHA's designee once a year. The current recordkeeping
regulation requires two categories of establishments to electronically
submit information from their Form 300A to OSHA on an annual basis.
First, current Sec.  1904.41(a)(1) requires establishments with 250 or
more employees at any time during the previous calendar year, in all
industries that are routinely required to keep OSHA injury and illness
records, to electronically submit information from their 300A to OSHA
once a year. Second, current Sec.  1904.41(a)(2) requires
establishments with 20-249 employees at any time during the previous
calendar year, in industries listed in appendix A to subpart E of part
1904, to electronically submit information from

their OSHA 300A to OSHA or OSHA's designee once a year.
    The proposed rule would not impose any new requirements on
establishments to electronically submit information from their Form
300A to OSHA. All establishments that would be required to
electronically submit Form 300A information to OSHA on an annual basis
under the proposed rule are already subject to that requirement under
the current regulation. This includes all of the establishments with
250 or more employees that would be required to electronically submit
information to OSHA under proposed Sec.  1904.41(a)(2), which are
already required to submit this information under the current
regulation at Sec.  1904.41(a)(1).
    As discussed in more detail below, proposed Sec.  1904.41(a) would
remove the electronic submission requirement for certain establishments
with 250 or more employees. Currently, all establishments of this size
in industries routinely required to keep injury and illness records are
required to electronically submit information from their Form 300A to
OSHA once a year. The proposal requires this submission only for the
establishments in industries listed in appendix A. OSHA believes that
only a small number of establishments would be excluded by the
proposal. In calendar year 2020, 2,665 establishments with 250 or more
employees, in an industry not in current appendix A to subpart E,
submitted information from their 2019 Form 300A to OSHA. Under proposed
Sec.  1904.41(a), these establishments would no longer be required to
electronically submit Form 300A data to OSHA.\5\ The agency has
preliminarily determined that collecting Form 300A data from this
relatively small number of large establishments in lower-hazard
industries is not a priority for OSHA inspection targeting or
compliance assistance activities.\6\
---------------------------------------------------------------------------

    \5\ See docket exhibit OSHA-2021-006-0003 for the list of
industries in which establishments with 250 or more employees would
no longer be required to electronically submit Form 300A data to
OSHA.
    \6\ In 2016, OSHA established the list of industries in current
appendix A to subpart E based on a 2011-2013 three-year-average Days
Away, Restriction, and Job Transfer (DART) rate greater than 2.0 in
the BLS Survey of Occupational Injuries and Illnesses.
---------------------------------------------------------------------------

    Additionally, OSHA proposes to revise appendix A to subpart E to
update the list of designated industries to conform with the 2017
version of the North American Industry Classification System (NAICS).
The Office of Management and Budget, through its Economic
Classification Policy Committee (ECPC), reviews and considers revisions
for NAICS, a statistical classification system, every five years. In
2016, when OSHA revised Sec.  1904.41, the agency used the 2012 version
of NAICS to designate the industries in which establishments with 20-
249 employees were required to electronically submit Form 300A data to
OSHA. (See current appendix A to subpart E of part 1904). The Office of
Management and Budget has since issued two updates to the NAICS codes:
2017 NAICS codes and 2022 NAICS codes. The update from 2012 NAICS to
2017 NAICS would have the benefit of using more current NAICS codes, as
well as ensuring that both proposed appendix A and proposed appendix B
(referenced in proposed Sec.  1904.41) use the same version of NAICS.
As explained below, the industries in proposed appendix B are a subset
of the industries in appendix A. Also, the 2017 version of NAICS is the
version currently used by BLS for the SOII data that OSHA is using for
this rulemaking, and employers are likely more familiar with the 2017
industry codes.
    This proposed revision would not impact which industries are
covered and therefore required to provide their data.\7\ It would
merely reflect the updated 2017 NAICS codes. For appendix A, OSHA is
limiting the scope of this rulemaking to the proposed update from the
2012 version of NAICS to the 2017 version of NAICS. Other changes to
appendix A are not within the scope of this rulemaking.
---------------------------------------------------------------------------

    \7\ Note that the proposed rule would remove NAICS 7213, Rooming
and Boarding Houses, from proposed appendix A to subpart E. That
specific NAICS industry group, which is listed in the part 1904 Non-
Mandatory appendix A to subpart B--Partially Exempt Industries, is
not routinely required to keep OSHA injury and illness records.
However, that NAICS industry group was mistakenly included in
appendix A to subpart E when OSHA published the 2016 final rule.
---------------------------------------------------------------------------

    For proposed (i.e., updated) appendix A, the change from the 2012
NAICS to the 2017 NAICS would affect only a few industry groups at the
4-digit NAICS level. Specifically, the 2012 NAICS industry group 4521
(Department Stores) is split between the 2017 NAICS industry groups
4522 (Department Stores) and 4523 (General Merchandise Stores,
including Warehouse Clubs and Supercenters). Also, the 2012 NAICS
industry group 4529 (Other General Merchandise Stores) is included in
2017 NAICS industry group 4523 (General Merchandise Stores, including
Warehouse Clubs and Supercenters).
    The proposed revised appendix A is as follows:

                           Proposed Appendix A
------------------------------------------------------------------------
       2017 NAICS code                     2017 NAICS title
------------------------------------------------------------------------
11..........................  Agriculture, forestry, fishing and
                               hunting.
22..........................  Utilities.
23..........................  Construction.
31-33.......................  Manufacturing.
42..........................  Wholesale trade.
4413........................  Automotive Parts, Accessories, and Tire
                               Stores.
4421........................  Furniture Stores.
4422........................  Home Furnishings Stores.
4441........................  Building Material and Supplies Dealers.
4442........................  Lawn and Garden Equipment and Supplies
                               Stores.
4451........................  Grocery Stores.
4452........................  Specialty Food Stores.
4522........................  Department Stores.
4523........................  General Merchandise Stores, including
                               Warehouse Clubs and Supercenters.
4533........................  Used Merchandise Stores.
4542........................  Vending Machine Operators.
4543........................  Direct Selling Establishments.
4811........................  Scheduled Air Transportation.
4841........................  General Freight Trucking.

4842........................  Specialized Freight Trucking.
4851........................  Urban Transit Systems.
4852........................  Interurban and Rural Bus Transportation.
4853........................  Taxi and Limousine Service.
4854........................  School and Employee Bus Transportation.
4855........................  Charter Bus Industry.
4859........................  Other Transit and Ground Passenger
                               Transportation.
4871........................  Scenic and Sightseeing Transportation,
                               Land.
4881........................  Support Activities for Air Transportation.
4882........................  Support Activities for Rail
                               Transportation.
4883........................  Support Activities for Water
                               Transportation.
4884........................  Support Activities for Road
                               Transportation.
4889........................  Other Support Activities for
                               Transportation.
4911........................  Postal Service.
4921........................  Couriers and Express Delivery Services.
4922........................  Local Messengers and Local Delivery.
4931........................  Warehousing and Storage.
5152........................  Cable and Other Subscription Programming.
5311........................  Lessors of Real Estate.
5321........................  Automotive Equipment Rental and Leasing.
5322........................  Consumer Goods Rental.
5323........................  General Rental Centers.
5617........................  Services to Buildings and Dwellings.
5621........................  Waste Collection.
5622........................  Waste Treatment and Disposal.
5629........................  Remediation and Other Waste Management
                               Services.
6219........................  Other Ambulatory Health Care Services.
6221........................  General Medical and Surgical Hospitals.
6222........................  Psychiatric and Substance Abuse Hospitals.
6223........................  Specialty (except Psychiatric and
                               Substance Abuse) Hospitals.
6231........................  Nursing Care Facilities (Skilled Nursing
                               Facilities).
6232........................  Residential Intellectual and Developmental
                               Disability, Mental Health, and Substance
                               Abuse Facilities.
6233........................  Continuing Care Retirement Communities and
                               Assisted Living Facilities for the
                               Elderly.
6239........................  Other Residential Care Facilities.
6242........................  Community Food and Housing, and Emergency
                               and Other Relief Services.
6243........................  Vocational Rehabilitation Services.
7111........................  Performing Arts Companies.
7112........................  Spectator Sports.
7121........................  Museums, Historical Sites, and Similar
                               Institutions.
7131........................  Amusement Parks and Arcades.
7132........................  Gambling Industries.
7211........................  Traveler Accommodation.
7212........................  RV (Recreational Vehicle) Parks and
                               Recreational Camps.
7223........................  Special Food Services.
8113........................  Commercial and Industrial Machinery and
                               Equipment (except Automotive and
                               Electronic) Repair and Maintenance.
8123........................  Drycleaning and Laundry Services.
------------------------------------------------------------------------

    OSHA welcomes public comment on the proposed changes to Sec.
1904.41(a)(1).
2. Section 1904.41(a)(2)--Annual Electronic Submission of OSHA Form
300A Summary of Work-Related Injuries and Illnesses, OSHA Form 300 Log
of Work-Related Injuries and Illnesses, and OSHA Form 301 Injury and
Illness Incident Report by Establishments With 100 or More Employees in
Designated Industries
    Section 1904.41(a)(2) of the proposed rule would add a requirement
for establishments that had 100 or more employees at any time during
the previous calendar year, and that are in an industry listed in
proposed appendix B to subpart E, to electronically submit to OSHA or
OSHA's designee once a year, certain information from the OSHA Forms
300, 301, and 300A.
    The requirement in proposed Sec.  1904.41(a)(2) for the submission
of 300A data by establishments with 100 or more employees in industries
listed in proposed appendix B to subpart E would not be new. All of the
establishments with 100 or more employees in industries listed in
proposed appendix B to subpart E are already required to electronically
submit 300A data to OSHA once a year under current 29 CFR 1904.41.
However, the proposed requirement for the electronic submission of data
from the 300 and 301 forms would be new.
    As discussed above in the Regulatory History section of this
preamble, in 2016, OSHA issued a final rule that revised the
recordkeeping regulation at 29 CFR 1904.41 to require establishments
with 250 or more employees that are routinely required to keep injury
and illness records to electronically submit information from their 300
and 301 forms to OSHA once a year. The 300 and 301 data submission
requirement from the 2016 rulemaking was never fully implemented, and
OSHA never collected 300 and 301 data electronically from employers
covered by the requirements in the 2016 final rule.
    In 2019, OSHA issued a final rule that removed the requirement for
the annual electronic submission of 300 and 301 data to OSHA. In the
preamble to the 2019 final rule, OSHA explained that the 300/301
submission requirement

was being removed because the collection of such data would expose
sensitive worker information to a meaningful risk of disclosure, and
that ``OSHA cannot justify that risk given its resource allocation
concerns and the uncertain incremental benefits to OSHA of collecting
the data'' (84 FR 387). In addition, ``OSHA . . . determined that the
best use of its resources [was] to focus on data it already receives--
including a large set of data from Form 300A, as well as discrete data
about urgent issues from severe injury reports--and has found useful in
its past experience'' (84 FR 387).
    OSHA has preliminarily determined that the reasons given in the
preamble to the 2019 final rule for the removal of the 300 and 301 data
submission requirement are no longer compelling. As discussed in more
detail below, recent advancements in technology have reduced the risk
that information that reasonably identifies individuals directly, such
as name and contact information, will be disclosed to the public. The
improved technology used to protect sensitive employee data will reduce
costs and resource-allocation issues for OSHA by eliminating the need
to manually identify and remove information that reasonably identifies
individuals directly from submitted data. In addition, the improved
technology has decreased the resources required to analyze the data.
Moreover, because of these improvements, OSHA is now better able to
collect, analyze, and publish data from the 300 and 301 forms, so the
anticipated benefits of collecting the data are more certain. The
collection of case-specific data will allow the agency to focus its
enforcement and compliance assistance resources based on hazard-
specific information and trends, and to increase its ability to
identify emerging hazards, at the establishment level. Accordingly, at
this point, the significant benefits of collecting establishment-
specific, case-specific data from the 300 and 301 forms outweigh the
slight risk to employee privacy.
    To this point in time, OSHA has successfully collected reference
year 2016 through 2020 Form 300A data through the OSHA Injury Tracking
Application. Approximately 300,000 records have been submitted to the
agency each year. OSHA has successfully analyzed these data to identify
establishments with elevated injury and illness rates and has focused
both its enforcement and outreach resources towards these
establishments. This experience demonstrates OSHA's ability to collect,
analyze, and use large volumes of data to interact with establishments
where workers are being injured or becoming ill. However, this same
experience has demonstrated the limits of the data currently collected.
For example, OSHA is currently developing a National Emphasis Program
to address the hazards associated with environmental heat. Without
case-specific injury and illness data, the agency is unable to identify
specific establishments where workers are suffering work-related heat
disorders. The Summary data from Form 300A do not provide the level of
detail required to address specific occupational hazards.
    Based on the agency's experience with collecting and using the Form
300A data and the development of a system to auto-code case-specific
data, OSHA is now better able to collect, analyze, and publish data
from the 300 and 301 forms, so the anticipated benefits of collecting
the data are more certain.
a. The Data Collection Will Adequately Protect Information That
Reasonably Identifies Individuals Directly
    As explained in the 2019 final rule, OSHA Forms 300 and 301 contain
information that reasonably identifies individuals directly, such as
name, contact information, date of birth, and physician name, for the
workers who experienced a recordable injury or illness. The OSHA Forms
300 and 301 also contain fields that are not direct identifiers but
that could act as indirect identifiers if released and combined with
other information, such as job title on the Form 300, time employee
began work on the Form 301, and date of death on the Form 301.
    In this rulemaking, OSHA has preliminarily determined that the
proposed data collection would adequately protect information that
reasonably identifies individuals directly, such as name and address,
with multiple layers of protection, including by limiting the amount of
information submitted by employers; reminding employers not to submit
information that reasonably identifies individuals directly;
withholding certain fields from disclosure; and using automated
information technology to detect and remove information that reasonably
identifies individuals directly. In particular, advances in neural
networks and machine learning have strengthened OSHA's ability to
protect information that reasonably identifies individuals directly.
    First, the proposed rule would protect information that reasonably
identifies individuals directly by limiting the amount of information
submitted by employers. Under proposed Sec.  1904.41(b)(9), for the 300
Log, OSHA does not intend to collect employees' names (column B). For
the 301 Incident Report, OSHA will not collect the following
information: Employee name (field 1), employee address (field 2), name
of physician or other health care professional (field 6), and facility
name and address if treatment was given away from the worksite (field
7). Since these fields would not be collected, there would be no risk
of public disclosure of the data in these fields.
    In addition, OSHA plans to limit the information that reasonably
identifies individuals directly collected in the system by posting
reminders to employers to omit information that reasonably identifies
individuals directly, such as names, addresses, or Social Security
numbers, from the text fields they submit. OSHA routinely uses these
types of instructions, such as when it requests comments from
stakeholders in rulemakings such as this one (see ``Instructions'' on
submitting comments above), and has found these reminders to be an
effective manner of preventing the unintentional submission and
collection of personal information that reasonably identifies
individuals directly. Again, if this information is not submitted in
the first place, there will be no risk of its disclosure to the public.
    Second, OSHA plans to design the collection system to provide extra
protections for some of the personal information that employers would
be required to submit under the proposal. Specifically, the proposal
would require employers to submit the employee's date of birth from
OSHA Form 301 (Field 3 on OSHA Form 301). However, the agency plans to
design the collection system so that it will immediately calculate the
employee's age based on the date of birth entered and then store only
the employee's age, not their date of birth.
    Third, as described in more detail below, OSHA would seek to
protect information that reasonably identifies individuals directly and
certain other elements of personal information submitted under the
proposed rule by withholding certain fields from public disclosure. The
OSHA Form 301, Fields 1 through 9 (the left side of the 301), includes
personal information about the injured or ill employee as well as the
physician or other health care professional. Under the provisions about
access to employees and employee representatives in OSHA's
recordkeeping regulation, Sec.  1904.35(b)(2)(v)(A) and (B) prohibit
the release of information in fields 1

through 9 to individuals other than the employee or former employee who
suffered the injury or illness and his or her personal representatives.
As noted above, OSHA's proposal would not require employers to submit
some of those items (fields 1, employee full name; 2, employee address;
6, name of physician or other health care professional; and 7,
treatment location). In addition, consistent with Sec.
1904.35(b)(2)(v)(A) and (B), OSHA proposes to collect but would not
release the information from the remaining fields that are likely to
contain private worker information: Age (calculated from date of birth
in field 3), date hired (field 4), gender (field 5), whether the
employee was treated in the emergency room (field 8), and whether the
employee was hospitalized overnight as an in-patient (field 9). Thus,
there would be little risk of public disclosure of this information.
    Fourth, as explained above, consistent with FOIA, OSHA does not
intend to release or post information that reasonably identifies
individuals directly collected through proposed Sec.  1904.41(a)(2)
and, via the use of the protective measures described above and the
scrubbing technology described below, the agency preliminarily finds
that it can effectively remove such information that reasonably
identifies individuals directly before releasing or posting the data.
Moreover, OSHA notes that the 2019 rulemaking took an expansive view of
the term ``PII.'' For example, in that rule, OSHA regarded information
such as descriptions of workers' injuries and the body parts affected
(Field F on Form 300, Field 16 on Form 301), as ``quite sensitive,''
and stated that public disclosure of this information under FOIA or
through the OSHA Injury Tracking Application (ITA) would pose a risk to
worker privacy. As further justification for deciding to rescind the
requirement to submit information from Forms 300 and 301, the agency
stated that ``although OSHA believes data from Forms 300 and 301 would
be exempt from disclosure under FOIA exemptions, OSHA is concerned that
it still could be required by a court to release the data'' (84 FR
383).
    After further consideration, OSHA has preliminarily determined that
the 2019 rule's position on such information is at odds with the
agency's usual practice of releasing such data. OSHA currently collects
these forms from employers during inspections and, when the agency
receives a FOIA request to which these records are responsive, the only
field on OSHA Form 300 that is always withheld from disclosure under
the FOIA is employee name (column B). Similarly, OSHA has often
released the fields on the right-hand side of the OSHA Form 301 (fields
10 through 18) in response to FOIA requests. And the agency has
regularly released similar information contained in the OSHA
Information System (OIS) database in response to FOIA requests. For
example, OSHA regularly releases data in the Hazard Description and
Location field in closed cases in OIS, which often contains specific
information about injuries. This practice of producing such case-
specific information is long-standing, and the agency has not been
notified of issues regarding employee identification or re-
identification, despite that some of the released fields could act as
indirect identifiers if combined with additional information or data
external to the agency release or already in the requestor's
possession.
    In addition, OSHA uses FOIA Exemption 7(c) to withhold from
disclosure information that reasonably identifies individuals directly,
such as Social Security numbers or telephone numbers, included anywhere
on the three OSHA recordkeeping forms. In addition, FOIA Exemption 6
protects information about individuals in ``personnel and medical and
similar files'' when the disclosure of such information ``would
constitute a clearly unwarranted invasion of personal privacy.'' [5
U.S.C. 552(b)(6)]. Thus, for example, although OSHA sometimes releases
information in Field 15 of the 301 incident report (``Tell us how the
injury occurred'') in response to a FOIA request, it redacts
information that reasonably identifies individuals directly, such as a
name or Social Security number, by applying either Exemption 6, which
permits the withholding of information contained in personnel and
medical files or similar files, the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy, or
Exemption 7(C), which protects information found in law enforcement
files where disclosure could reasonably be expected to constitute an
unwarranted invasion of personal privacy.
    Finally, OSHA preliminarily finds that existing privacy scrubbing
technology is capable of de-identifying certain information that
reasonably identifies individuals directly (such as name, phone number,
email address, etc.) that may be submitted by employers to the system.
As explained in the 2019 rulemaking, in order for OSHA to avoid
publishing information that reasonably identifies individuals directly
that may be contained within text fields in the employer-submitted 300
and 301 data, information that reasonably identifies individuals
directly that has been submitted must be identified and removed. The
large volume of information from text fields submitted under the
proposed requirement would preclude human review and redaction of
information that reasonably identifies individuals directly without
great expenditure of resources. However, there are recent advances in
automated computer programs that can detect information that reasonably
identifies individuals directly, and which can be customized to also
replace submitted text strings with placeholder characters or
anonymized descriptive phrasing that indicate what type of information
was replaced. This replacement process anonymizes and improves
readability of the text entry. For example, a telephone number would be
replaced with the word ``[number]'' or ``[telephone number],''
formatted to indicate a replacement has occurred.
    In general, the tasks of detecting and categorizing information
that reasonably identifies individuals directly can be accomplished
either by automated systems using rules-based methods, machine-learning
methods, deep learning, or hybrid approaches using Natural Language
Processing (NLP). NLP refers to computer algorithms that both recognize
and categorize text strings according to tested business rules. Machine
learning methods typically refer to trained automated de-identification
using labeled test datasets to develop relationships within the wording
of, in this case, text fields in the Forms 300 and 301. With this
approach, the statistical likelihood of phrases and wording being
information that reasonably identifies individuals directly can be
calculated based on evaluating the word or phrase as well as wording
around a phrase and throughout the passage. Detection and anonymization
rules developed with test datasets can be examined for accuracy, and
revised as needed, by applying de-identification protocols to a
separate set of test records or review by an independent expert prior
to use.
    Deep learning systems apply detection algorithms in a fashion that
mimics the non-linear processing of human neural networks. ``Deep''
refers to the number of layers through which the data are examined to
extract higher level relationships in the input data. The statistical
methods used for this approach are specific to the type of domain and
type of information being processed (e.g., text or photographic
images). Deep learning solutions to

classification of text, and the subcategory of de-identification, can
yield results superior to classical machine-based learning in that they
can capture contextual information in the passage. OSHA is committed to
protecting information that reasonably identifies individuals directly
such as name and address in published data, and the agency intends to
test multiple applications for identifying and removing this
information using a test database of the four free text fields, and
then analyzing the results (including manual review) to identify the
best product.
    AI or machine learning--the technology used to detect, redact, and
remove information that reasonably identifies individuals directly from
structured and unstructured data fields--has advanced rapidly in recent
years. Many vendors, including large commercial vendors, provide
solutions for securing information that reasonably identifies
individuals directly, including Cloud-based solutions and packages for
detecting and redacting or removing information that reasonably
identifies individuals directly from unstructured text like the OSHA
300 and 301 data fields. For example, Vendor A has a natural-language
processing (NLP) service that uses machine learning to identify key
words and phrases in unstructured text to detect and redact information
that reasonably identifies individuals directly by replacing the term
of interest with a character. Vendor A's service automatically
identifies personal (e.g., name, address, and age), financial (e.g.,
bank account and routing numbers and PINs), technical security (e.g.,
passwords, usernames, and IP addresses), and national (e.g., SSN and
driver's license numbers) identifying information. Vendor A also has a
HIPAA-eligible NLP for extracting health data from unstructured text/
data fields, thus protecting patient information. The initial release
date for Vendor A's product was November 29, 2017. Similarly, Vendor B
offers a service to detect, categorize, and remove personal identifying
information (PII) and personal health information (PHI) in unstructured
text across several pre-defined categories (e.g., name, job types,
email, address, phone); the initial release date for Vendor B's product
was March 1, 2018. Vendor C provides an open-source package for
identification, anonymization, and redaction of certain PII in
structured and unstructured text; the initial release date for Vendor
C's product was March 21, 2018. Vendor D provides a similar product
that de-identifies sensitive data in text by replacing it with a token,
symbol, or key thereby hiding the sensitive data. The hidden data can
only be restored with a specific key or token that was used to de-
identify the data. The initial release date for Vendor D's product was
March 2, 2021. Each of these commercially available services is
customizable and could be modified to identify and remove information
that reasonably identifies individuals directly such as name and
address from the 300 and 301 data collected.
    OSHA intends to test multiple AI or machine learning methods,
including commercial services, and analyze the results carefully to
select the best option to secure and protect information that
reasonably identifies individuals directly, such as name and address.
No option, including a manual review, is 100% effective. Therefore,
OSHA could consider a combination of the selected scrubbing application
supplemented by some manual review of the data to protect information
that reasonably identifies individuals directly.
    In summary, OSHA preliminarily finds that the agency would be able
to adequately protect workers' information that reasonably identifies
individuals directly (such as name and address) using the safeguards in
the proposed rule and OSHA's planned data collection system, in
combination with warnings to employers and available automated
information technology. In addition, the use of the automated
informational technology would significantly decrease the need for the
type of resource-intensive manual reviews that OSHA was concerned about
in the 2019 rulemaking. Moreover, even if some of these data were
ultimately used to identify employees, OSHA preliminarily finds that
the benefits of collecting and publishing the data for improving safety
and health outweigh potential privacy problems. As discussed below, the
proposed data collection will further OSHA's statutory mission to
assure safe and healthful working conditions for working people by
providing data information for OSHA's targeting and compliance
assistance efforts.
    OSHA expects a Privacy Impact Assessment to be completed before
issuing the final rule. OSHA welcomes public comment on the issue of
collecting data that includes PII and protecting information that
reasonably identifies individuals directly such as name and address
from disclosure.
b. Recent Technological Developments Have Significantly Decreased the
Resources Needed for OSHA To Collect, Analyze, Use, and Publish
Establishment-Specific, Case-Specific Data
    In addition to the worker privacy concerns, OSHA's decisions in the
2019 final rule relied in part on resource concerns. The agency
preliminarily finds that these concerns are no longer compelling, in
part, because recent technological developments in automated data
coding for text-based fields have made it easier and more cost
effective for OSHA to efficiently use electronically-submitted,
establishment-specific, case-specific injury and illness data to
improve OSHA's ability to identify, target, and remove workplace safety
and health hazards, resulting in the prevention of work-related
fatalities, injuries, and illnesses. The specific estimated cost burden
on OSHA and employers for data collection is discussed in the
Preliminary Economic Analysis section, below.
    The primary information technology improvement relates to the
coding of data. Specifically, in order to enable OSHA and stakeholders
to undertake statistical analyses of information in text fields in the
Forms 300 and 301, which include details regarding the circumstances
and causes of workplace injuries and illnesses, OSHA intends to use
automated systems to assign standardized codes based on the information
contained in the text fields (e.g., type of accident is ``fall'').
Automated, standardized coding of information in text fields would
allow OSHA to easily identify individual establishments that have
experienced injuries and illnesses of a focused interest (such as falls
from heights), assess the effectiveness of employers' health and safety
programs, and evaluate OSHA's assistance programs.
    Standardized coding of information from text fields in Forms 300
and 301 is already being done by BLS. Each year, BLS collects SOII data
from sampled OSHA Forms 300 and 301, with approximately 300,000 written
descriptions of work-related injuries and illnesses collected by the
survey. BLS uses the information provided on these OSHA forms to
generate detailed statistics on the case characteristics of work-
related injuries or illnesses. In order to generate statistics, the
text entries in the OSHA forms must be converted to standard BLS codes.
    SOII data are coded according to the BLS Occupational Injury and
Illness Classification System (OIICS) (Version 2.01). Specific codes
are assigned to the

narrative to classify case characteristics such as the nature of the
injury/illness, the part of the body affected, the event or exposure,
and the source of the injury or illness. Prior to 2014, BLS assigned
OIICS codes to the case narratives manually, which was both time
consuming and subject to error. In 2014, BLS began using machine
learning to code a subset of cases, first by selecting a learning
algorithm, then by training it on large quantities of previously coded
SOII narratives. During this training process, the algorithm calculated
how strongly various features, such as words, pairs of words, and other
items, were associated with the codes that could be assigned. After the
training process, the algorithm was used to estimate the best codes for
each uncoded narrative and assigned the codes if the model's confidence
exceeded a predetermined threshold.
    When codes were assigned manually, overall accuracy was around 71%.
Accuracy with neural network autocoding was around 82%. Autocoding
could be used for all the information collected but performance was
worse on rarer codes. BLS decided to use a combination of autocoding
and manual coding. From 2014 to 2017, the percent of codes
automatically assigned rose to around 67%, but autocoding had reached a
point of diminishing returns.
    With the old autocoder previously coded narratives were broken up
into smaller pieces, typically individual words and short word
sequences, and used to estimate how strongly each piece was associated
with each possible code. New narratives were then coded by identifying
their individual pieces and aggregating the previously learned
associations to choose the most closely associated code. Some of the
problems with the old autocoder included only identifying words in a
phrase without thought to context, i.e., ``worker fell on car'' was the
same as ``car fell on worker''; too many two- and three-word sequences;
and separate autocoder models for each type of information, i.e.,
separate models for occupation, nature, part, event, and source.
    However, in 2018, BLS switched to deep neural networks. Like the
older autocoder, neural networks rely on training data to learn and
improve their accuracy over time. 2017 research found that the neural
network autocoder outperformed the alternatives across all coding tasks
and made an average of 24% fewer errors than the logistic regression
autocoders, and an estimated 39% fewer errors than the manual coding
process. On each task the neural network's accuracy was statistically
greater than the next best alternative at a p-value of 0.001 or
less.\8\ By 2019, automatic coding had been expanded to include all six
primary coding tasks (occupation, nature, part, source, secondary
source, and event) with the model assigning approximately 85% of these
codes.\9\
---------------------------------------------------------------------------

    \8\ See ``Deep neural networks for worker injury autocoding'',
Alexander Measure, U.S. Bureau of Labor Statistics, draft as of 9/
18/2017: https://www.bls.gov/iif/deep-neural-networks.pdf.
    \9\ See https://www.bls.gov/iif/autocoding.htm.
---------------------------------------------------------------------------

    The BLS system is already collecting data using OSHA Forms 300 and
301, so OSHA should be able to mirror the BLS system to code the OSHA
data fairly easily. OSHA could use the BLS source code to create a
pilot system where the autocoding of realistic OSHA data could be
tested and compared to manual coding of the same data. Upon successful
testing and adoption of the BLS system, OSHA plans to consult and work
with BLS for the long-term system maintenance to continuously update
the neural network code and refine automation of the data.
    Once the data were coded, OSHA would be able to use the data
similarly to how the agency currently uses coded data from the Severe
Injury Reporting (SIR) program. The SIR Program collects data on all
severe work-related injuries and illnesses, defined as an amputation,
in-patient hospitalization, or loss of an eye. Under OSHA's
recordkeeping regulation at 29 CFR 1904.39, employers must report
certain information about these severe injuries/illnesses to OSHA
within 24 hours of occurrence. On a monthly basis, OSHA reviews the SIR
data and trained analysts assign OIICS codes (nature, part, event, and
source) for each SIR narrative, thus making the data searchable/query-
able and more useful for agency programs. See Docket exhibit OSHA-2021-
006-0005 for an example of a search interface for the data that would
be collected under this proposal. OSHA could also combine the coded
data with other data sources (e.g., inspection data or ITA data) to
increase the utility of the data.
    In making these preliminary findings for this rulemaking, OSHA
notes that some autocoding information technology was available during
the 2019 rulemaking. In fact, in the 2018 NPRM, OSHA specifically
requested comment on other agencies or organizations that use automated
coding systems for text data in data collections (83 FR 36494, 36500).
Commenters on this issue urged OSHA to consult with other agencies that
collect this type of data, including the National Institute for
Occupational Safety & Health (NIOSH), the Mine Safety and Health
Administration (MSHA), BLS, the Federal Railroad Administration (FRA),
and the Federal Aviation Administration (FAA), to learn about database
design and best practices for collecting this kind of data (84 FR 389).
In its own comments, NIOSH noted that it had already developed
autocoding methods for categorizing occupation and industry based on
free text data and had successfully utilized similar free text data
collected from workers' compensation claims (84 FR 389). NIOSH also
generously offered to help OSHA with data analysis (84 FR 389).
    After reviewing these comments to the 2018 NPRM, OSHA determined
that ``NIOSH's ability to analyze data collected from Forms 300 and 301
does not reduce the burden on OSHA to collect the data. Even if NIOSH
could make the data useful for OSHA's enforcement targeting and
outreach efforts, which NIOSH itself has suggested would present
analytical challenges due to the volume of the data, OSHA and employers
would be left covering the expense of collection, not to mention
additional expense associated with the need to process and otherwise
manually review data from the forms--costs that would detract from
OSHA's priorities of enforcement and compliance assistance to reduce
workforce hazards'' (84 FR 389). Ultimately, OSHA determined that any
benefits of electronically collecting the Form 300 and 301 data were
outweighed by the cost of developing a system to manage that volume of
data, particularly when making use of the data would divert resources
away from OSHA's then-current priority of fully utilizing Form 300A and
severe injury data for targeting and outreach (84 FR 389).
    In this proposal, OSHA has specific information from BLS regarding
its technology. Following conversations with BLS since the 2019
rulemaking, OSHA is confident that it would be able to utilize similar
technology in a cost-effective manner to code the data from OSHA Forms
300 and 301, avoiding many of the resource concerns specified in the
2019 rulemaking. Moreover, as discussed in more detail below, OSHA has
preliminarily determined that benefits to worker safety and health far
outweigh the potential costs of the systems necessary to collect these
data, make them useful for analysis, analyze them, and publish them for
stakeholder use.
    In summary, available technology, including recent improvements in
autocoding information technology, would enable OSHA to efficiently
autocode the data from electronically-

submitted OSHA Forms 300 and 301. The agency would not need to rely
primarily on manual review or analysis. Consequently, OSHA has
preliminarily determined that the agency's 2019 resource-related
concerns are no longer compelling. The agency welcomes public comment
on the issue of automated coding of text-field data and other available
technology that would enable OSHA to automatically code these data.
c. The Collection, Analysis, and Publishing of These Data Would Improve
Worker Safety and Health
    The value of the new de-identification and autocoding information
technology discussed is significant. Most importantly, the new
autocoding technology will allow OSHA to more effectively focus its
enforcement and compliance assistance resources on specific
establishments experiencing safety and health problems. Access to case-
specific injury and illness data will also allow OSHA to better
identify safety and health hazards. For example, unlike 300A data,
which include heat illnesses in the category ``all other illnesses''
(Field M6), 300 and 301 data would allow OSHA to identify
establishments with heat illnesses and allow the agency to focus its
enforcement and compliance assistance resources on specific industries
or types of workplaces with that specific hazard. Similarly, 300A data
group all injuries into the single category ``injuries'' (Field M1),
but 300 and 301 data would allow OSHA to identify establishments whose
delivery workers experience different types of injuries, such as
traffic violence injuries or lifting injuries.
    In addition, reliance on only 300A data limits OSHA's ability to
analyze and address existing workplace hazards. For example, the
collection of 300A data provides OSHA with access to general
information about certain illnesses, such as recorded cases involving
work-related respiratory illness. However, the collection of 300A data
does not provide OSHA with information about specific respiratory
illnesses, such as cases involving work-related COVID-19. On the other
hand, the collection and analysis of case-specific data would allow
OSHA to identify specific establishments that have experienced recorded
cases of work-related COVID-19, which could result in OSHA enforcement
efforts and compliance assistance at that facility.
    Similarly, together with the other protections proposed for the
data collection, the new de-identification technology will allow OSHA
to make the establishment-specific, case-specific, data publicly
available in both coded and uncoded form, increasing workplace safety
and health while providing protection against release of PII.
Employers, employees, employee representatives, potential employees,
customers and potential customers, workplace safety consultants, and
members of the general public will all benefit from access to this
information in a timely manner. For example, potential employees and
potential customers will be able to review case-specific injury and
illness data to make informed decisions on whether to seek employment
at, or whether to do business with, a specific establishment. In turn,
with heightened public awareness of injuries and illnesses at a given
establishment, individual employers will be encouraged to increase
their focus on enhancing workplace safety and health at their facility.
    In addition, researchers will have access to a detailed, case-
specific, establishment-specific dataset of work-related recordable
injuries and illnesses, improving their ability to conduct
occupational-health studies, as well as identify increasing or emerging
hazards. For example, access to case-specific information could be
extremely useful to individuals and public health agencies conducting
research on the causes and prevention of work-related COVID-19.
    In summary, OSHA preliminarily finds that the benefits for worker
safety and health of collecting, analyzing, and publishing data from
Forms 300 and 301 outweigh the cost of the actual collection, analysis,
and publication of those data, which have been reduced since the 2019
rule. The agency invites comment on this preliminary determination.
d. Data Tools Will Enable Stakeholders To Efficiently Use OSHA-
Published Establishment-Specific, Case-Specific Data
    Once OSHA has removed PII and coded the case-specific injury and
illness data submitted by employers, the agency plans to make the data
available and able to be queried via a web-based tool. Stakeholders
(including employers, employees, job-seekers, customers, researchers,
workplace safety consultants, and the general public) who are
interested in learning about occupational injuries and illnesses will
have access to information on when injuries and illnesses occur, where
they occur, and how they occur. Stakeholders could also use such a tool
to analyze injury and illness data and identify patterns that are
masked by the aggregation of injury/illness data in existing data
sources.
    Tool functionality could include:
     The ability to compare rates with other establishments by
industry sector, occupation, size, region, and other variables.
     The ability to track trends and emerging hazards over
time.
     Easy searches by common variables such as OIICS category
(e.g., event), industry sector, occupation, geography, etc.
     Provision of related data including workplace-specific
violations, and demographic and economic data for reporting industries,
to help contextualize the injury and illness data.
     Links to resources useful in increasing workplace safety
such as best practices for the industry, injury reduction
interventions, and other current health and safety information.
     Options for data visualization of the submitted data
(e.g., data visualizations of trends, data table displays, reports with
summary counts and statistics).
     Flexibility for accommodating the different needs of
different types of users (for example, an employee might only want to
access information on one establishment, while a researcher may want to
analyze data across an entire industry sector).
     Application programming interfaces (APIs) that allow other
web-based tools to retrieve, process, and publish publicly-accessible
OSHA data.
    In developing a publicly-accessible tool for injury and illness
data, OSHA would review how other federal agencies, such as the
Environmental Protection Agency (EPA), have made their data publicly
available via online tools that support some analyses. Examples of EPA
tools include:
     Toxics Release Inventory Program Pollution Prevention (P2)
Tool (https://enviro.epa.gov/facts/tri/p2.html) provides information
that allows users to explore and compare facility and parent company
environmental performance with respect to the management of toxic
chemical waste, including facilities' waste management practices and
trends.
     Enforcement and Compliance History Online (ECHO, https://echo.epa.gov/) contains enforcement and compliance information for EPA-
regulated facilities and allows for analysis in trends of compliance
and enforcement and creation of enforcement-related maps.
     Envirofacts (https://enviro.epa.gov/) provides access to
several EPA databases containing information about environmental
activities that affect air,

water, and land resources in the United States. The data are in a
searchable, downloadable format.
     Enviromapper (https://enviro.epa.gov/enviro/em4ef.home)
allows Envirofacts users to generate maps that contain the
environmental information contained in Envirofacts.
     Discharge Monitoring Report (DMR) Pollutant Loading Tool
(https://echo.epa.gov/trends/loading-tool/water-pollution-search/)
allows users to determine what pollutants are being discharged into
waterways and by which companies. The output from this tool is in the
form of interactive charts and graphs.
     Facility Level Information on Greenhouse Gases Tool
(FLIGHT, https://ghgdata.epa.gov/ghgp/main.do) provides information
about greenhouse gas (GHG) emissions from large facilities in the U.S.
and offers mapping, charting, comparing, and other analysis of
facility-reported data.
    Thus, OSHA preliminarily finds that available tools could enable
stakeholders to use OSHA-published data from Forms 300 and 301 to
improve worker safety and health. OSHA welcomes public comment on the
utility of these data for researchers, employers, and other
stakeholders, as well as on available data tools that would enable
these stakeholders to efficiently use OSHA-published establishment-
specific, case-specific data to improve worker safety and health.
e. The Covered Industries
    In proposed Sec.  1904.41(a)(2), for establishments with 100 or
more employees, OSHA is seeking to balance the utility of the
information collection for enforcement, outreach, and research, on the
one hand, and the burden on employers to provide the information to
OSHA, on the other hand. The 2016 final rule, which was subsequently
rescinded, required submission of information from the OSHA Form 300,
301, and 300A from all establishments with 250 or more employees in
industries routinely required to keep part 1904 injury and illness
records. In the 2016 final rule, OSHA estimated that establishments
with 250 or more employees covered by that section of the submission
requirement would report 713,397 injury and illness cases per year.
    For this rulemaking, to identify the appropriate balance of utility
versus burden, OSHA analyzed five years of injury and illness summary
data collected through OSHA's Injury Tracking Application (ITA). OSHA
examined combinations of establishment size and industry hazardousness
that, like the 2016 final rule, would provide the agency with
information on roughly 750,000 cases of injuries and illnesses per
year. Based on this analysis, OSHA is proposing a reporting requirement
for establishments with 100 or more employees in 4-digit NAICS (2017)
industries that:
    1. Had a 3-year-average rate of total recordable cases (Total Case
Rate, or TCR) in the BLS SOII for 2017, 2018, and 2019, of at least 3.5
cases per 100 full-time-equivalent employees, and
    2. are included in proposed appendix A to subpart E. (All of the
industries in proposed appendix B are also in appendix A.)
    OSHA proposes to list the designated industries required to submit
data from all three recordkeeping forms under proposed Sec.
1904.41(a)(2) in proposed appendix B to subpart E.
    OSHA is proposing one exception to these criteria, for the United
States Postal Service (USPS), which is the only employer in NAICS 4911
Postal Service. BLS does not include USPS in the SOII. However, under
the Postal Employees Safety Enhancement Act (Pub. L. 105-241), OSHA
treats the USPS as a private sector employer for purposes of
occupational safety and health, and establishments in NAICS 4911 (i.e.,
USPS establishments) with 20 or more employees are currently required
to electronically submit Form 300A information to OSHA. Using the 2017,
2018, and 2019 data submitted by USPS, OSHA calculated a TCR of 7.5 for
NAICS 4911. Because this TCR is greater than the proposed 3.5 criterion
for designated industries in proposed appendix B, OSHA is including
NAICS 4911 in proposed appendix B to subpart E. OSHA notes that NAICS
4911 is also included in both current and proposed appendix A to
subpart E.
    In the 2016 final rule that revised Sec.  1904.41, OSHA used the
rate of cases with days away from work, job restriction, or transfer
(DART) from the BLS SOII to determine the industries included in
appendix A to subpart E of part 1904. However, proposed appendix B to
subpart E is based on the TCR, which includes both cases resulting in
days away from work, job restriction, or transfer, as well as other
recordable cases such as those resulting in medical treatment beyond
first aid. OSHA believes that TCR is the appropriate rate to use for
determining the list of industries in proposed appendix B to subpart E
because covered establishments will be required to electronically
submit information to OSHA on all of their recordable cases, not just
cases that resulted in days away from work, job restriction, or
transfer. In 2020, OSHA received submissions of 2019 Form 300A data
from 46,911 establishments that had 100 or more employees and were in
one of the industries listed in proposed appendix B to subpart E,
accounting for 680,930 total recordable cases and a TCR of 3.6. OSHA
requests comment on whether TCR is the appropriate method for
determining the list of industries in proposed appendix B to subpart E.
    Additionally, OSHA anticipates that, by the time that the
department expects to issue the final rule in this rulemaking, more
current industry-level injury and illness data from BLS, as well as
more establishment-specific injury and illness information from the
ITA, will be available. When developing the final rule, OSHA may rely
on the most current data available, as appropriate, for determining the
list of industries in appendix B to subpart E. OSHA seeks comment from
the public on whether the agency should use the most current data when
developing the final rule.
    The designated industries, which would be published as appendix B
to subpart E of part 1904, are proposed to be as follows:

                           Proposed Appendix B
------------------------------------------------------------------------
       2017 NAICS code                     2017 NAICS title
------------------------------------------------------------------------
1111........................  Oilseed and grain farming.
1112........................  Vegetable and melon farming.
1113........................  Fruit and tree nut farming.
1114........................  Greenhouse, nursery, and floriculture
                               production.
1119........................  Other crop farming.
1121........................  Cattle ranching and farming.
1122........................  Hog and pig farming.

1123........................  Poultry and egg production.
1129........................  Other animal production.
1141........................  Fishing.
1151........................  Support activities for crop production.
1152........................  Support activities for animal production.
1153........................  Support activities for forestry.
2213........................  Water, sewage and other systems.
2381........................  Foundation, structure, and building
                               exterior contractors.
3111........................  Animal food manufacturing.
3113........................  Sugar and confectionery product
                               manufacturing.
3114........................  Fruit and vegetable preserving and
                               specialty food manufacturing.
3115........................  Dairy product manufacturing.
3116........................  Animal slaughtering and processing.
3117........................  Seafood product preparation and packaging.
3118........................  Bakeries and tortilla manufacturing.
3119........................  Other food manufacturing.
3121........................  Beverage manufacturing.
3161........................  Leather and hide tanning and finishing.
3162........................  Footwear manufacturing.
3211........................  Sawmills and wood preservation.
3212........................  Veneer, plywood, and engineered wood
                               product manufacturing.
3219........................  Other wood product manufacturing.
3261........................  Plastics product manufacturing.
3262........................  Rubber product manufacturing.
3271........................  Clay product and refractory manufacturing.
3272........................  Glass and glass product manufacturing.
3273........................  Cement and concrete product manufacturing.
3279........................  Other nonmetallic mineral product
                               manufacturing.
3312........................  Steel product manufacturing from purchased
                               steel.
3314........................  Nonferrous metal production and
                               processing.
3315........................  Foundries.
3321........................  Forging and stamping.
3323........................  Architectural and structural metals
                               manufacturing.
3324........................  Boiler, tank, and shipping container
                               manufacturing.
3325........................  Hardware manufacturing.
3326........................  Spring and wire product manufacturing.
3327........................  Machine shops; turned product; and screw,
                               nut, and bolt manufacturing.
3328........................  Coating, engraving, heat treating, and
                               allied activities.
3331........................  Agriculture, construction, and mining
                               machinery manufacturing.
3335........................  Metalworking machinery manufacturing.
3361........................  Motor vehicle manufacturing.
3362........................  Motor vehicle body and trailer
                               manufacturing.
3363........................  Motor vehicle parts manufacturing.
3366........................  Ship and boat building.
3371........................  Household and institutional furniture and
                               kitchen cabinet manufacturing.
3372........................  Office furniture manufacturing.
4231........................  Motor vehicle and motor vehicle parts and
                               supplies merchant wholesalers.
4233........................  Lumber and other construction materials
                               merchant wholesalers.
4235........................  Metal and mineral merchant wholesalers.
4244........................  Grocery and related product merchant
                               wholesalers.
4248........................  Beer, wine, and distilled alcoholic
                               beverage merchant wholesalers.
4413........................  Automotive parts, accessories, and tire
                               stores.
4422........................  Home furnishings stores.
4441........................  Building material and supplies dealers.
4442........................  Lawn and garden equipment and supplies
                               stores.
4451........................  Grocery stores.
4522........................  Department stores.
4523........................  General merchandise stores, including
                               warehouse clubs and supercenters.
4533........................  Used merchandise stores.
4543........................  Direct selling establishments.
4811........................  Scheduled air transportation.
4841........................  General freight trucking.
4842........................  Specialized freight trucking.
4851........................  Urban transit systems.
4852........................  Interurban and rural bus transportation.
4854........................  School and employee bus transportation.
4859........................  Other transit and ground passenger
                               transportation.
4871........................  Scenic and sightseeing transportation,
                               land.
4881........................  Support activities for air transportation.
4883........................  Support activities for water
                               transportation.
4911........................  Postal Service.

4921........................  Couriers and express delivery services.
4931........................  Warehousing and storage.
5322........................  Consumer goods rental.
5621........................  Waste collection.
5622........................  Waste treatment and disposal.
6219........................  Other ambulatory health care services.
6221........................  General medical and surgical hospitals.
6222........................  Psychiatric and substance abuse hospitals.
6223........................  Specialty hospitals.
6231........................  Nursing care facilities.
6232........................  Residential intellectual and developmental
                               disability, mental health, and substance
                               abuse facilities.
6233........................  Continuing care retirement communities and
                               assisted living facilities for the
                               elderly.
6239........................  Other residential care facilities.
6243........................  Vocational rehabilitation services.
7111........................  Performing arts companies.
7112........................  Spectator sports.
7131........................  Amusement parks and arcades.
7211........................  Traveler accommodation.
7212........................  RV parks and recreational camps.
7223........................  Special food services.
6239........................  Other residential care facilities.
6243........................  Vocational rehabilitation services.
7111........................  Performing arts companies.
7112........................  Spectator sports.
7131........................  Amusement parks and arcades.
7211........................  Traveler accommodation.
7212........................  RV parks and recreational camps.
7223........................  Special food services.
------------------------------------------------------------------------

    OSHA welcomes public comment on all aspects of proposed appendix B,
including the specific issues noted above.
3. Section 1904.41(b)(1)(i) and (ii)
    Proposed Sec.  1904.41(b)(1) would provide employers with further
clarity on which employers and establishments need to submit data under
proposed Sec.  1904.41(a)(1) and (2) and how the requirements of those
provisions interact with each other. These proposed provisions, like
many of the provisions within part 1904 are written in question-and-
answer format to help employers easily identify the information they
seek.
    Proposed Sec.  1904.41(b)(1)(i) focuses on the issue of who must
submit their information to OSHA. Specifically, it would reiterate the
question posed in current Sec.  1904.41(b) (which asks whether every
employer has to routinely make an annual electronic submission of
information from part 1904 injury and illness recordkeeping forms to