comprehensive risk-based approach that measures leading as well as
lagging indicators. Leading indicators provide critical information
about an organization's true commitment to safety and health, at times
acting as a better gauge of a system's vulnerabilities or effectiveness
than lagging indicators'' (Docket ID 0031; see also Docket IDs 0041,
0053). Similarly, PRR commented, ``The safety community has been
actively moving away from using case rates as indicators of a safety
program's effectiveness and has been experimenting with various leading
indicators'' (Docket ID 0094). PRR further commented that the use of
lagging indicators ``leads the general public, which is uninformed, to
think that there is direct correlation between injury and illness rates
and the effectiveness of an employer's worker safety and health
programs and practices'' (Docket ID 0094; see also Docket IDs 0043,
0088).
    In addition, ASSP ``recommends that OSHA develop guidance on
leading indicators and overhaul the current recordkeeping system to use
both leading and lagging indicators as indicators of the effectiveness
of a business' safety and health management system'' (Docket ID 0031).
In its comment, ASSP referred the ANSI/ASSP Z16.1-2022 standard
(``Safety and Health Metrics and Performance Measures''), which
contains leading indicators, to OSHA for consideration. (OSHA has
placed a copy of ANSI/ASSP Z16.1-2022 standard in the docket as a
copyright protected reference (Docket ID 0101).)

    In response to ASSP's recommendation that OSHA ``overhaul the
current recordkeeping system to use both leading and lagging indicators
as indicators of the effectiveness of a business' safety and health
management system[,]'' including through a review of the referenced
ANSI/ASSP standard, OSHA notes that such an overhaul is outside of the
scope of this rulemaking, which focuses only on the annual electronic
submission of data which employers are already required to keep. The
agency did not propose changes to the data which should be kept, e.g.,
whether such data should include leading indicators, and if so, which.
    That said, OSHA agrees with ASSP that leading indicators are an
important tool to assess the effectiveness of workplace safety and
health programs. However, as ASSP acknowledges, leading indicators are
not the only such tool. As OSHA has explained many times before (see,
e.g., https://www.osha.gov/safety-management/program-evaluation), both
leading and lagging indicators are valuable performance measures. These
two measures work together to provide a comprehensive picture of worker
safety and health in an industry or particular workplace. (For more
information on the benefits and utility of the lagging indicators that
will be collected and published in this rulemaking, see Section III.B.4
of this Summary and Explanation.) This rulemaking and OSHA's
recordkeeping system in general focuses on lagging indicators. Other
OSHA programs, such as the Voluntary Protection Programs (VPP) which
recognizes employers and workers in the private industry and Federal
agencies who have implemented effective safety and health management
systems and maintain injury and illness rates below national Bureau of
Labor Statistics averages for their respective industries, encourage
the use of leading indicators. And, as ASSP suggests, OSHA has
previously published guidance related to leading indicators (see, e.g.,
https://www.osha.gov/sites/default/files/OSHA_Leading_Indicators.pdf;
https://www.osha.gov/leading-indicators).
    Moreover, OSHA notes that its recordkeeping system is in line with
Congress' instructions in the OSH Act (see, e.g., Section 8(c)(2)
(``The Secretary . . . shall 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[;]''); see also Section 8(g)(1) (``The
Secretary and Secretary of Health and Human Services are authorized to
compile, analyze, and publish, either in summary or detailed form, all
reports or information obtained under this section.'')).
    As to the argument that OSHA's planned publication of lagging
information will mislead the public, OSHA has previously published data
from establishments' CY 2016-2021 300A forms online and has long given
out redacted Forms 300 and 301 in response to FOIA requests, and the
agency has not received reports of widespread public confusion, nor
have interested parties pointed to such reports of confusion in their
comments in this rulemaking. Consequently, OSHA is not persuaded that
these parties' hypothetical concerns should change the course of this
rulemaking. Nevertheless, to help decrease the risk that members of the
public might inaccurately assume that an establishment's report of an
injury or illness always suggests a deficiency in that establishment's
safety and health system, OSHA will continue to include a reference to
the Note to 29 CFR 1904.0 in the notes below the links to the website
on which it publishes the safety and health data submitted pursuant to
this rulemaking (see Note to Sec.  1904.0 (``Recording or reporting a
work-related injury, illness, or fatality does not mean that the
employer or employee was at fault, that an OSHA rule has been violated,
or that the employee is eligible for workers' compensation or other
benefits.'')).
    OSHA also received comments arguing that requiring the submission
of injury and illness data from the recordkeeping forms, and publishing
data from the submissions, will divert employer focus from leading
indicators. For example, ASSP commented, ``OSHA's focus on lagging
injury and illness data has at times created a stumbling block to
systemic safety program improvements by actively discouraging employers
from embracing a holistic risk-based approach'' (Docket ID 0031).
Similarly, the U.S. Poultry & Egg Association commented, ``In this
proposal, OSHA is myopically focusing on injuries and injury rates . .
. Despite what OSHA may believe, because employers will know that their
information will be made available worldwide, they will focus greater
attention on these issues at the expense of focusing on leading safety
metrics'' (Docket ID 0053). The North American Meat Institute made a
similar comment (Docket ID 0076).
    In response, OSHA notes that, as discussed in Section III.G of this
Summary and Explanation, employers are already required to complete
these forms, and there is no reason why the new requirement to submit
information from these forms would prevent employers from additionally
implementing proactive measures as part of a comprehensive safety and
health program. The agency is unaware of any resulting increase in
inappropriate focus by employers on recordable injuries/illnesses vs.
leading indicators, commenters did not provide any examples, and it is
not clear why publishing case-specific information from the OSHA Form
300 and 301 would cause employers to focus inappropriately on
recordable injuries and illnesses in a way that collecting and
publishing establishment-specific information from the OSHA Form 300A
Annual Summary did not. Moreover, as discussed in Section III.B.4 of
this Summary and Explanation, OSHA's publication of the establishment-
specific, case-specific, injury and illness data will benefit employers
by giving them access to a larger data set that can be used for
benchmarking. This increased access to information will enable
employers to proactively improve their workplace safety and health.
5. Employer Shaming
    The National Propane Gas Association commented: ``It is assumed
that the agency's ambition is to embarrass, shame, or otherwise damage
the reputation of employers as a means to induce some undefined
improvement. Underscoring this ambition is the agency's presumption
that employers are not invested in employees' safety; that public
scrutiny is the only enticement to improve the workplace rather than an
employers' natural concern for employees' safety. We disagree with the
agency's lack of faith in employers . . . .'' (Docket ID 0050).
    In response, this appears to be a misunderstanding. There is no
mention in the preamble to the proposed rule of shaming, embarrassing,
or damaging the reputation of employers; nor is this the agency's
intent. On the contrary, the preamble specifically stated that
``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'' (87 FR 18533-4). Those mechanisms include ``enable[ing]
interested parties to gauge

the full range of injury and illness case types at the establishment,''
allowing employers to ``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,'' and ``allow[ing]
employees to compare their own workplaces to the safest workplaces in
their industries'' (id.). OSHA further stated that, ``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'' (id.). As OSHA has discussed
elsewhere in this preamble, the currently available 300A data has
already been critical to efforts to improve worker safety and health,
and publishing the case-specific data required to be submitted under
this rule will further improve workplace safety and health (see, e.g.,
Section III.B.4 of this Summary and Explanation). The purpose of this
rule is to improve workers' well-being not by shaming their employers,
but by providing employers and other interested parties with valuable
information that can be used to better understand and address
occupational safety and health hazards.
6. Impact on Employee Recruiting
    The Precision Machined Parts Association commented, ``PMPA believes
that posting this information on the internet without explanation will
not improve workplace safety but will make it tougher for manufacturers
to recruit young people and qualified employees into manufacturing
careers'' (Docket ID 0055).
    Similarly, the North American Die Casting Association commented,
``This proposed rulemaking will only serve to hurt the image of the
industry and discourage individuals from seeking careers in
manufacturing. In a recent survey, 96 percent of NADCA members report
they have job openings in their facilities, and OSHA's actions in
making these reports public will create a false image of the industry
as dangerous. . . . At a time when businesses are already struggling to
recruit employees and compete globally, OSHA should not continue to
erect additional barriers to job growth and drive a wedge between
employer and employee.'' (Docket ID 0056). The Precision Metalforming
Association and National Tooling and Machining Association expressed
similar concerns in their joint comment (Docket ID 0057).
    In response, OSHA notes that supporting and explanatory information
has always been included on its website for ODI as well as ITA data,
and the agency plans to continue this practice. For example, the ITA
website contains several explanations of the data that address
commenters' specific concerns, including a note that ``[r]ecording or
reporting a work-related injury, illness, or fatality does not mean
that the employer or employee was at fault, that an OSHA rule has been
violated, or that the employee is eligible for workers' compensation or
other benefits'' (https://www.osha.gov/Establishment-Specific-Injury-and-Illness-Data). The ODI website also includes explanatory notes
(https://www.osha.gov/ords/odi/establishment_search.html). The agency
has published establishment-specific information from the Form 300A
summary since 2009 but is unaware of any resulting detrimental effects
on the recruitment of young people and qualified employees into
manufacturing careers; nor did the commenters provide any examples. On
the other hand, OSHA notes that the data could assist with new employee
recruitment efforts by providing prospective employees with more
information about injuries and illnesses occurring at the
establishment. For example, a prospective employee might be concerned
by the number of injuries or illnesses listed in the information from
an establishment's 300A Summary, but the case-specific forms allow
establishments to provide more information regarding the injuries and
illnesses summarized in the 300A, allowing prospective employees to
make more informed decisions.
7. Legal Disputes
    AIHA commented, ``Data related to personal injury can be combined
with other readily available data from newspapers, community `gossip',
etc., and then used to identify the affected individuals. Once
identified, the individuals could be harassed or encouraged to file
lawsuits or additional claims against employers'' (Docket ID 0030).
Similarly, the National Propane Gas Association stated that OSHA
ignored the ``potential for frivolous lawsuits or investigations that
could be fueled by the incomplete information that the agency intends
to publish'' (Docket ID 0050).
    The Motor and Equipment Manufacturers Association commented,
``Making such data publicly available would allow third parties to use
it for reasons wholly unrelated to safety.'' This commenter provided
the following example: ``plaintiffs' attorneys, labor unions,
competitors, and special interest groups would be able to use such
information--selectively or otherwise--as leverage against companies
during legal disputes, union organizing drives, contract negotiations,
or as part of an effort to prevent a company from entering a specific
market'' (Docket ID 0075; see also Docket ID 0088).
    The Chamber of Commerce similarly argued that, ``[M]aking these
data publicly available would very likely lead to less desirable
outcomes, such as increased litigation from plaintiffs' attorneys
looking to assert that the employer was at fault to overcome workers'
compensation no-fault limitations, as well as unions using these data
to mischaracterize an employer's safety record during organizing
campaigns or contract negotiations.'' (Docket ID 0088).
    As discussed above, the agency has published establishment-specific
information from the Form 300A summary since 2009 but is unaware of any
resulting increase in legal disputes or unwarranted reputational
damage; nor did the commenters provide any specific examples. As noted
above, given that this final rule requires the submission of
information that can provide details on, and context for, the
information from the Form 300A that is already being made public, the
new information may help provide a fuller, more accurate picture of
worker safety and health at a given establishment. This additional
context and detail could actually help protect businesses against
attempts to mischaracterize their safety records, whether in the legal
context or otherwise. As discussed above, it is also important to note
that employees and their representatives already have the right to
request and receive injury and illness records from their employers
(see 29 CFR 1904.35). While OSHA recognizes that such access is on a
smaller scale, there is already the potential for the data to be used
for these purposes, independent of this regulation. Finally, also as
discussed above, to the extent that the published data serves to
address the problem of information asymmetry in the labor market, OSHA
considers that a positive consequence of the final rule.
8. No Fault Recordkeeping
    OSHA also received several comments asserting that the proposed
rule would be inconsistent with the ``no fault'' nature of the
recordkeeping system, as set forth in the note to 29 CFR 1904.0:
``Recording or reporting a work-related injury, illness, or fatality
does not mean that the employer or employee was at fault, that an OSHA

rule has been violated, or that the employee is eligible for workers'
compensation or other benefits'' (e.g., Docket IDs 0053, 0086, 0087,
0090, 0091). OSHA received similar comments on the 2013 NPRM (the
rulemaking which culminated in the 2016 final rule) (see 81 FR 29666-
67).
    These comments misconstrue what OSHA means by no fault reporting.
As OSHA has explained previously, it will not use the mere fact that an
employer has recorded or reported and injury or illness as evidence
that the employer violated the OSH Act or an OSHA standard. But that is
not the same as saying that the data recorded and reported have no
valid use or effect. OSHA has used employer reports of worker deaths
and injuries, as well as press reports and referrals from other
agencies, as a basis for investigating conditions at an affected
workplace throughout its entire history. For just as long, OSHA's first
step in all of its workplace inspections has been an examination of the
establishment's injury and illness records. OSHA's very first
Compliance Operations Manual, issued in January 1972, states that
``During the course of a routine inspection, the CSHO shall inspect
those employer records required to be kept by the Act and by [p]art
1904'' (Docket ID 0100, p. V-15). And today, the instruction is the
same: ``At the start of each inspection, the CSHO shall review the
employer's injury and illness records (including the employer's OSHA
300 logs, 300A summaries, and 301 incident reports) for three prior
calendar years'' (see OSHA's Field Operations Manual, CPL 02-00-164,
Chapter III, Paragraph VI.A.1 (April 14, 2020) available at https://www.osha.gov/enforcement/directives/cpl-02-00-164).
    And OSHA has always used the information in those records to guide
the nature of its inspections (see, e.g., McLaughlin v. A.B. Chance
Co., 842 F.2d 724 (4th Cir. 1988) (noting that during a complaint
inspection about a particular machine, ``it would be reasonable for the
investigator to determine if there had been injuries from the use of
said machine'')). Indeed, for many years, OSHA's inspections plans
explicitly conditioned the scope of inspections on the data found in
those records (In re Establishment Inspection of Kohler Co., 935 F.2d
810 (7th Cir. 1991) (``OSHA applied to a federal magistrate for an
administrative search warrant that would require Kohler to produce the
records and to submit to a comprehensive inspection of its entire
facility if those records revealed that Kohler's injury rate exceeded
the national average for manufacturing concerns.'')). In the last five
years OSHA has used information from establishments' 300A Forms
submitted under the 2016 final rule to prioritize which workplaces to
inspect through OSHA's Site-Specific Targeting program. It does so by
using a neutral administrative scheme to identify hazards that OSHA
wants to address through its enforcement resources. However, OSHA will
not use the case-specific injury and illness information submitted to
simply choose a particular employer to inspect outside of the neutral
administrative scheme noted above (see Marshall v. Barlow's Inc., 436
U.S. 307 (1978)). Thus, the assertion by the Employers E-Recordkeeping
Coalition, ``that the principal reason that the data collected pursuant
to this proposed rule is published by OSHA presumes and is based on a
premise of employer fault,'' is wrong (see Docket ID 0087).
    OSHA continues to recognize that the mere fact of any particular
injury or illness occurring is not an indication of employer fault. But
the reports of those injuries and illnesses can provide important
information about hazards that exist at workplaces, whether or not
those hazards are addressed by existing OSHA standards. As explained
elsewhere, this information can be useful not only to OSHA, but also to
researchers, workers, and even other employers with similar facilities
(see, e.g., Docket IDs 0030, 0045). For the same reasons, as discussed
elsewhere in this preamble, publication of the submitted data is not
intended to ``shame'' employers (see Docket ID 0081); it is merely to
allow use of the data in ways that will promote occupational safety and
health.
9. Confidentiality of Business Locations
    One commenter was concerned about the consequences of disclosing
business locations for certain establishments. Specifically, the
National Retail Federation commented that some business locations need
to remain confidential because ``[m]any retailers deal with
pharmaceuticals, hazardous materials, or other highly sought after and/
or dangerous products,'' and ``[e]xposing the locations of these
operations could leave them vulnerable to bad actors seeking the
materials for their own use or sale on the black market'' (Docket ID
0090).
    In response, OSHA notes that it has long published certain
information from employers' Form 300A, including business locations. As
explained elsewhere, the agency began publishing information from
establishments' electronic submissions of Form 300A annual summary data
in 2020; in addition, beginning in 2009, OSHA published information
from the establishments' submissions of the Form 300A to the OSHA Data
Initiative (ODI), which was replaced by the current data collection.
The information published from both data collections included
establishments' addresses. Furthermore, OSHA is not aware of any
instances of damage from bad actors as a result of data collected
through the ITA or the ODI and published since 2009, and commenters did
not provide any examples. Nor is OSHA aware of any law that classifies
business addresses as confidential business information or personally
identifiable information, and commenters have provided none.
    Moreover, OSHA notes that the Environmental Protection Agency
already publishes information about the location of workplaces with
hazardous materials and chemicals. For example, facilities must inform
local communities of the presence of hazardous chemicals at specific
worksites under the Emergency Planning and Community Right-to-Know Act.
Also, EPA maintains hazardous materials information in the Resource
Conservation and Recovery Act Information (RCRAInfo), which provides a
searchable public website for the identification of facilities that
generate, handle, and store hazardous materials (see, e.g., the Toxic
Release Inventory: https://www.epa.gov/enviro/tri-search and the
Emergency Planning and Community Right-to-Know Act (EPCRA) Reporting
Requirements: https://www.epa.gov/epcra/state-tier-ii-reporting-requirements-and-procedures). Given the availability of such
information, OSHA does not expect that the minimal amount of
information regarding hazardous materials that it may publish will lead
to the problems envisioned by this commenter.
    Finally, OSHA believes that the benefits of publishing this
information outweigh the purported risks. As discussed in greater
detail in Section III.B.4 of this Summary and Explanation, OSHA has
identified a number of ways in which employees, researchers,
consultants, and the general public may benefit from the publication of
data from Forms 300 and 301, and if those groups do not have access to
businesses' addresses, many of those benefits will not be realized. For
example, injury and illness data may help job seekers make more
informed decisions regarding their employment, but only if they can
accurately identify their potential employers. Accordingly, OSHA
declines to change its

longstanding practices regarding publication of business locations.
10. Employer-Vaccine-Mandate-Related Concerns
    OSHA also received a comment from an interested party who was
concerned that non-OSHA actors will mischaracterize the injury and
illness data which OSHA intends to publish on its websites as
``vaccine-related,'' especially if those injuries and illnesses occur
in establishments with known vaccine mandates. Specifically, the
National Retail Federation (NRF) commented that ``throughout the COVID-
19 pandemic and continuing beyond, various groups have targeted
employers for implementing vaccine mandates in their workplaces. Such
employers could face unwarranted attacks or unfair mischaracterizations
of their workplace safety records due to vaccination policies. Sadly,
we have already seen anti-vaccine advocates manipulate publicized
workplace injuries and unjustly characterize them as vaccine-related.
Employers who implemented vaccine mandates consistent with the
Administration's wishes, should not be unfairly targeted by those who
would eagerly mischaracterize the impact of mandates and policies''
(Docket ID 0090).
    OSHA understands this commenter's concern. However, OSHA published
calendar year 2021 data from OSHA Form 300A on its website in April
2022, September 2022, and January 2023. The information made available
in that release (like previous releases of the data from Form 300A)
includes, among other things, company names and data regarding total
number of deaths; total numbers of cases with days away from work and
job transfers or restrictions, total number of other restrictions, and
injury and illness types (e.g., the total number of injuries, skin
disorders, respiratory conditions, poisonings, and all other
illnesses). If the groups referenced by NRF were going to use OSHA data
to target the establishments with vaccine mandates, OSHA believes that
they already had the opportunity to do so using the published 300A
data. There is no such evidence of OSHA data being used for these kinds
of attacks in the record, and NRF did not point to any such evidence.
Moreover, the publication of case-specific data will provide more
information about the injuries and illnesses occurring at
establishments, perhaps making it more obvious that a
mischaracterization of an injury or illness as vaccine-related is just
that: a mischaracterization.
    Finally, if NRF is suggesting that the groups referenced in its
comment could somehow determine that a given employer or establishment
had a vaccine mandate in place by viewing the Form 300 or 301 data
which OSHA plans to make publicly available, OSHA thinks such a thing
is unlikely. This final rule does not include a vaccination mandate for
employees, nor does it require the collection and publication of
information about vaccine mandates at a given establishment. Further,
OSHA is currently not enforcing 29 CFR 1904's recording requirements in
the case of worker side effects from COVID-19 vaccination. Thus, OSHA
does not expect that any information regarding vaccine side effects
will appear in establishment's injury and illness data. And NRF has not
pointed to any other data or evidence that would be submitted and made
public pursuant to this rulemaking that could alert the groups
discussed above of an employer or establishment's vaccine mandate.
Consequently, for the reasons discussed above, OSHA is not persuaded
that the potential harm referenced by NRF is anything other than purely
speculative.
11. Constitutional Issues and OSHA's Authority To Publish Information
From Forms 300 and 301
a. The First Amendment
    OSHA received two comments relating to the First Amendment of the
U.S. Constitution. On the one hand, a comment from the U.S. Chamber of
Commerce argues that OSHA's proposed rule would violate the First
Amendment because it would force employers to submit their confidential
and proprietary information for publication on a publicly available
government online database (Docket ID 0088, Attachment 2). In its
comment, the Chamber noted that the First Amendment protects both the
right to speak and the right to refrain from speaking. The Chamber
commented: ``While OSHA's stated goal of using the information it
collects from employers ``to improve workplace safety and health,'' 78
FR 67254, is unobjectionable, ``significant encroachments on First
Amendment rights of the sort that compelled disclosure imposes cannot
be justified by a mere showing of some legitimate governmental
interest.'' Buckley v. Valeo, 424 U.S. 1, 64 (1976) (per curiam).
Instead, where the government seeks to require companies to engage in
the type of speech proposed here, the regulation must meet the higher
standard of strict scrutiny: Meaning that it must be narrowly tailored
to promote a compelling governmental interest. See United States v.
Playboy Entm't Grp., Inc., 529 U.S. 803, 819 (2000). Once subjected to
strict scrutiny, the publication provision of this Proposed Rule must
fail because it is not narrowly tailored towards accomplishing a
compelling government interest. See Playboy, 529 U.S. at 819. Under the
narrow tailoring prong of this analysis, the regulation must be
necessary towards accomplishing the government's interest. See, e.g.,
Republican Party of Minn. v. White, 536 U.S. 765, 775 (2002) (``[T]o
show that the [requirement] is narrowly tailored, [the government] must
demonstrate that it does not `unnecessarily circumscrib[e] protected
expression.'' ' (fourth alteration in original) (quoting Brown v.
Hartlage, 456 U.S. 45, 54 (1982))).'' (Docket ID 0088, Attachment 2)
(footnote omitted).
    In support of these arguments, the Chamber alleged that OSHA's
proposal would undermine (not improve) workplace safety and health
because it ``would substantially deplete OSHA's resources.'' In
addition, the Chamber asserted that ``even if OSHA were able to
maintain this database and analyze this information in an effective and
timely manner, there is no evidence that publication of this
information will have any effect on workplace safety'' (Docket ID 0088,
Attachment 2).
    On the other hand, Worksafe commented that the rule would merely
compel employers to submit to OSHA information that they are already
required to maintain about workplace incidents (Docket ID 0063). It
further explained that this is a form of commercial speech, in which
the speaker's constitutional interest in non-disclosure is minimal
(Docket ID 0063 (citing Zauderer v. Office of Disciplinary Counsel, 471
U.S. 626, 651 (1985))). Additionally, Worksafe argued that OSHA could
address First Amendment concerns by identifying the following in the
final rule (1) OSHA's interest in the case-specific reports and
publication, (2) how the rule advances that interest, and (3) why the
rule is not unduly burdensome (Docket ID 0063).
    After considering these comments, OSHA disagrees with the Chamber's
assertion that this rulemaking violates the First Amendment. OSHA notes
that, contrary to the Chamber's comment, the decision in Buckley v.
Valeo only applies to campaign contribution disclosures and does not
hold that other types of disclosure rules are subject to the strict
scrutiny standard (see 424 U.S. 1, 64 (reasoning that campaign
contribution disclosures ``can seriously infringe on privacy of
association and belief guaranteed by the First Amendment'')). Later
cases also clarify

that disclosure requirements only trigger strict scrutiny ``in the
electoral context'' (see John Doe No. 1 v. Reed, 561 U.S. 186, 196
(2010)).
    Further, OSHA agrees with WorkSafe that Zauderer is applicable to
this rulemaking. In Zauderer, the Supreme Court upheld Ohio State rules
requiring disclosures in attorney advertising relating to client
liability for court costs (471 U.S. at 653). The Court declined to
apply the more rigorous strict scrutiny standard, because the
government was not attempting to ``prescribe what shall be orthodox in
politics, nationalism, religion, or other matters of opinion or force
citizens to confess by word or act their faith therein'' (471 U.S. at
651). Because it concluded the disclosure at issue would convey
``purely factual and uncontroversial information,'' the rule only
needed to be ``reasonably related to the State's interest in preventing
deception of consumers'' (id.). More recently, in American Meat
Institute v. U.S. Dept. of Agriculture, the U.S. Court of Appeals for
the D.C. Circuit held that the Zauderer case's ``reasonably related''
test is not limited to rules aimed at preventing consumer deception,
and applies to other disclosure rules dealing with ``purely factual and
uncontroversial information'' (760 F.3d 18, 22 (D.C. Cir. 2014) (en
banc) (finding that the speakers' interest in non-disclosure of such
information is ``minimal''); see also NY State Restaurant Ass'n v. NYC
Bd. Of Health, 556 F.3d 114, 133 (2d Cir. 2009) (accord),
Pharmaceutical Care Mgmt. Ass'n v. Rowe, 429 F.3d 294, 310 (1st Cir.
2005) (accord), cert denied, 547 U.S. 1179 (2006)).
    This rule only requires disclosure of purely factual and
uncontroversial workplace injury and illness records that are already
kept by employers. The rule does not violate the First Amendment
because disclosure of workplace injury and illness records is
reasonably related to the government's interest in assuring ``so far as
possible every working man and woman in the Nation safe and healthful
working conditions'' (29 U.S.C. 651(b)). Further, as discussed in more
detail in Section III.B.4 of this Summary and Explanation, OSHA has
determined that the collection and publication of this information will
have a positive effect on worker safety and health. In addition, as
discussed in Section III.B.14 of this Summary and Explanation, OSHA
does not believe that its decision to devote a portion of its resources
to collecting the workplace injury and illness data covered by this
final rule will negatively impact worker safety and health. On the
contrary, OSHA expects that the data submitted in response to the
requirements put into place by this final rule will allow OSHA to
allocate its resources in a more informed fashion. The remainder of the
Chamber's comment addresses the requirement that the government
``narrowly tailor'' regulations that deal with essential rights, which,
as explained above, does not apply to an employer's minimal interest in
non-disclosure of purely factual and uncontroversial information.
b. The Fourth Amendment
    The Plastics Industry Association (Docket ID 0086), as well as one
private citizen commenter (Docket ID 0023), generally assert that the
collection and publication of site- and case-specific data would
violate employers' Fourth Amendment rights. However, as discussed above
in Section II, Legal Authority, the Fourth Amendment protects against
government searches and seizures of private property only when a person
has a legitimate expectation of privacy related to the thing being
searched or seized. There is little or no expectation of privacy for
records of occupational injuries and illnesses kept in compliance with
OSHA regulations, which employers are legally required to disclose to
OSHA and others on request. Moreover, even if there were an expectation
of privacy in these records, the Fourth Amendment prohibits only
unreasonable incursions by the government. The test for reasonableness
requires balancing the need to search against the invasion that the
search entails (see Camara v. Mun. Ct. of City & Cnty. of San
Francisco, 387 U.S. 523, 536-537 (1967)). The information submission
requirement in this final rule is reasonable. As explained in Section
II, Legal Authority, the submission requirement serves a substantial
government interest in protecting the health and safety of workers, has
a strong statutory basis, and uses reasonable, objective criteria for
determining which employers must report information to OSHA. In
addition, again, as noted above and below, the submission requirement
results in little to no invasion of employer or establishment privacy
given that employers must already retain these forms and provide them
to multiple individuals and entities upon request.
    OSHA also received a comment from the U.S. Chamber of Commerce (the
Chamber) asserting that OSHA's use of injury and illness data submitted
under the proposed rule for enforcement purposes would violate
employers' Fourth Amendment rights. The Chamber argued that OSHA's use
of the information collected for enforcement purposes will fail to
constitute a ``neutral administrative scheme'' and will thus violate
the Supreme Court's holding in Marshall v. Barlow's Inc., 436 U.S. 307
(1978) (Docket ID 0088, Attachment 2). Additionally, the Chamber
maintained that the raw data to be collected under the proposed rule
would fail to provide any defensible neutral predicate for enforcement
decisions: ``Under this Proposed Rule, OSHA will be able to target any
employer that submits a reportable injury or illness for any reason the
agency chooses, or for no reason at all, under this unlimited
discretion it has sought to grant itself to ``identify workplaces where
workers are at great risk.'' '' (Docket ID 0088, Attachment 2 (quoting
78 FR 67256)).
    In response, OSHA notes that Barlow's concerned the question of
whether OSHA must have a warrant to enter and inspect the nonpublic
areas of a worksite without the employer's consent. Section 1904.41 of
this final rule involves electronic submission of injury and illness
recordkeeping data; no entry of premises or compliance officer
decision-making is involved. Thus, the Barlow's decision provides very
little support for the Chamber's sweeping Fourth Amendment objections
(see Donovan v. Lone Steer, Inc., 464 U.S. 408, 414 (1984)
(reasonableness of a subpoena is not to be determined on the basis of
physical entry law, because subpoena requests for information involve
no entry into nonpublic areas)). Moreover, the final rule is limited in
scope and leaves OSHA with limited discretion. The recordkeeping
information required to be submitted is highly relevant to
accomplishing OSHA's statutory mission. The submission of recordkeeping
data is accomplished through remote electronic transmittal, without any
intrusion of the employer's premises by OSHA, and is not unduly
burdensome. Also, as noted above, all of the injury and illness
information establishments will be required to submit under this final
rule will be taken from records employers are already required to
create, maintain, post, and provide to employees, employee
representatives, and government officials upon request, which means the
employer has a reduced expectation of privacy in the information.
    With respect to the issue of enforcement, OSHA disagrees with the
Chamber's Fourth Amendment objection that the agency will target
employers ``for any reason'' simply because they submit injury and
illness

data. Instead, OSHA plans to continue the practice of using a neutral-
based scheme for identifying employers and industries for greater
enforcement attention. More specifically, the agency will use the data
submitted by employers under this final rule in essentially the same
manner in which OSHA has used data from the ODI and the current
collection of Form 300A data in all of its iterations of the Site-
Specific Targeting (SST) program. The SST includes for selection
establishments that meet pre-determined injury and illness rate
thresholds. All establishments at or above the threshold are eligible
for inspection. Establishments in this pool are then randomly selected
for inspection. In the future, OSHA plans to analyze the recordkeeping
data submitted by employers to identify injury and illness trends,
establish neutral criteria to determine which employers may be
inspected, and then make appropriate decisions regarding enforcement
efforts based on those criteria. OSHA also notes that the agency
currently uses establishment-specific fatality, injury, and illness
reports submitted by employers under Sec.  1904.39 to target
enforcement and compliance assistance resources. As with the SST and
National Emphasis programs, a neutral-based scheme is used to identify
which establishments are inspected and which fall under a compliance
assistance program. Accordingly, OSHA's using injury and illness
recordkeeping data to target employers for inspection will not be
arbitrary or unconstitutional under the Fourth Amendment.
c. The Fifth Amendment
    One commenter raised concerns that the proposed rule would violate
the Fifth Amendment's requirement that the Federal Government ensure
equal protection. Specifically, Hunter Cisiewski commented that the
proposal to remove the requirement from former Sec.  1904.41(a)(1) for
certain establishments with 250 or more employees to electronically
submit Form 300A data, ``would deprive workers in the affected
industries of holding their employers accountable to produce workplace
related injury data to OSHA while simultaneously providing this
protection to workers in similar industries'' and ``presents no reason
for why employees in these affected industries should no longer have
the guarantee that their employers will report workplace injury and
illness data to the governing agency'' (Docket ID 0024).
    As explained in Section III.A of this Summary and Explanation, OSHA
has decided not to make the proposed change of restricting the universe
of large establishments that are required to submit data from Form
300A. Instead, the agency will maintain the requirement for all
establishments with 250 or more employees that are covered by part 1904
to submit the information from their OSHA Form 300A to OSHA, or its
designee, once a year. Therefore, although OSHA disagrees with this
commenter's assertion that the proposal would have violated the Fifth
Amendment's guarantee of equal protection had it been finalized, the
agency finds that this particular comment is moot.
d. OSHA's Authority To Publish Information Submitted Under This Rule
    Several commenters asserted that OSHA lacks the statutory authority
under the OSH Act to publish a database that makes submitted injury and
illness recordkeeping data available to the general public (Docket IDs
0050, 0059, 0071, 0086, 0088, 0090). These commenters acknowledged that
Sections 8 and 24 of the OSH Act provide the Secretary of Labor with
authority to issue regulations requiring employers to maintain accurate
records of work-related injuries and illnesses. However, according to
these commenters, nothing in the OSH Act authorizes OSHA to publish
establishment-specific injury and illness records on a public website.
The National Retail Federation (NRF) stated: ``NRF believes the NPRM
itself is fundamentally flawed in that the agency does not have the
statutory authority to publish the data as proposed'' (Docket ID 0090).
The National Propane Gas Association commented: ``Lastly, the agency
radically interprets its authority to justify the publicly accessible
website. In the NPRM, OSHA argues that its general purpose justifies
any rulemaking that presents the potential to improve safety. The
general purpose of the agency to improve workplace safety is not
equivalent to a foregone conclusion that any proposal by the agency
will result in improvements to workplace safety. The NPRM fails to
present information to demonstrate that public shaming is an effective
means to improve workplace safety.'' (Docket ID 0050).
    Similarly, NAHB pointed to other statutes, such as the Federal Coal
Mine Safety and Health Act of 1969, Public Law 91-173 (December 30,
1969), which it maintains provided more express authority to publish
records than the OSH Act (Docket ID 0059). NAHB further argues that the
language in the OSH Act only authorizes OSHA to publish analysis, not
``raw data'' (Docket ID 0059).
    As OSHA stated in the 2016 final recordkeeping rule, the OSH Act
provides ample statutory authority for OSHA to issue this final rule
and publish the submitted data. As explained in Section II, Legal
Authority, the following provisions of the OSH Act give the Secretary
of Labor broad authority to issue regulations that address the
recording and reporting of occupational injuries and illnesses.
    Section 2(b)(12) of the Act states that one of the purposes of the
OSH Act is to ensure safe and healthy working conditions through
appropriate reporting procedures designed to further the objectives of
the OSH Act and accurately characterize the nature of workplace safety
and health hazards (29 U.S.C. 651(b)(12)).
    Section 8(c)(1) requires employers to create and retain the records
that OSHA has specified are necessary and appropriate either for the
Act's enforcement or to develop information related to the underlying
reasons for and prevention of work-related illnesses and accidents (29
U.S.C. 657(c)(1)). Section 8(c)(1) also requires employers to make such
records available to the Secretary. The authorization to the Secretary
to prescribe such recordkeeping regulations as he considers ``necessary
or appropriate'' emphasizes the breadth of the Secretary's discretion
in implementing the OSH Act. Section 8(c)(2) further tasks the
Secretary with promulgating regulations which require employers to keep
accurate records of, and to make periodic reports on, occupational
illnesses, injuries, and deaths (29 U.S.C. 657(c)(2)).
    The grant of authority in Section 8(g)(1) is particularly pertinent
to OSHA's stated intention to publish the collected information online.
Section 8(g)(1) authorizes the Secretary to compile, analyze, and
publish, either in summary or detailed form, all reports or information
the Secretary obtains under section 8 of the OSH Act. Section 8(g)(2)
of the Act generally empowers the Secretary to promulgate any rules and
regulations that the Secretary determines are necessary to perform the
Secretary's duties under the OSH Act (29 U.S.C. 657(g)(2)).
    Section 24 contains a related grant of regulatory authority.
Section 24(a) directs the Secretary to create and maintain an effective
program of collection, compilation and analysis of work-related safety
and health statistics. In addition, Section 24(a) states that the
Secretary shall compile accurate

statistics on occupational illnesses and injuries (29 U.S.C. 673(a)).
Finally, Section 24(e) provides that, based on the records the
employers create and retain in accordance with Section 8(c) of the OSH
Act, employers must file, with the Secretary, the reports prescribed by
regulation as necessary to carry out the Secretary's functions under
the OSH Act (29 U.S.C. 673(e)). Given the numerous statutory provisions
authorizing and requiring OSHA to collect information about
occupational safety and health, along with the provision (Section
8(g)(1)) specifically addressing the publication of such information,
it is clear that Congress determined that both collection and
publication of this information were critical to OSHA's mission of
protecting the health and safety of the nation's workers.
    In addition, as described in Section III.B of this Summary and
Explanation, OSHA has made the determination that electronic submission
and publication of injury and illness recordkeeping data are
``necessary and appropriate'' for the enforcement of the OSH Act and
for gathering and sharing information regarding the causes or
prevention of occupational accidents or illnesses. Where an agency is
authorized to prescribe regulations ``necessary'' to implement a
statutory provision or purpose, a regulation promulgated under such
authority is valid ``so long it is reasonably related to the enabling
legislation'' (Morning v. Family Publication Service, Inc., 441 U.S.
356, 359 (1973)).
    OSHA further notes that, contrary to comments made by some
commenters, and as explained above, the final rule will not result in
the publication of raw injury and illness recordkeeping data or the
release of records containing personally identifiable information or
confidential commercial and/or proprietary information. The release and
publication of submitted injury and illness recordkeeping data will be
conducted in accordance with applicable Federal law (see discussion
above in this preamble). The purpose of increasing access to injury and
illness report data is not to conduct public shaming, but rather to
allow employers to compare their safety records to other employers,
enable employees to gain greater awareness of the hazards and safety
records in their workplaces without fear of retribution, and pursue the
numerous other safety and health-related purposes discussed in this
rulemaking.
    Many commenters stated that collection and publication of detailed
injury and illness data will support the OSH Act's goals of reducing
occupational accidents and illnesses through greater understanding,
prevention, and effective enforcement (e.g., Docket IDs 0010, 0011,
0012, 0024, 0029, 0030, 0031, 0035, Attachment 2, 0045, Attachment 1,
0048, 0049, Attachment 1). The Seventeen AGs summarized the ways that
publication of data will enhance the effectiveness of OSHA's efforts to
achieve the purposes of the OSH Act: ``Requiring the submission of
certain data from Forms 300 and 301, in addition to the summary Form
300A, will provide the public with injury-specific data that is
critical for helping workers, employers, regulators, researchers, and
consumers understand and prevent occupational injuries and illnesses. .
. . These [case-specific] fields paint a far more detailed picture of
the nature and severity of workplace safety incidents and risks. The
proposed rule recognizes the importance of this more detailed
information, which will help OSHA and States better target their
workplace safety and enforcement programs; encourage employers to abate
workplace hazards; empower workers to identify risks and demand
improvements; and provide information to researchers who work on
occupational safety and health.'' (Docket ID 0045).
    OSHA agrees. In sum, publication of the data required to be
submitted under this final rule is clearly within the broad authority
granted the agency by the OSH Act.
    OSHA also received comments arguing that the online posting of
covered employers' injury and illness recordkeeping data violates the
Confidential Information Protection and Statistical Efficiency Act of
2002 (CIPSEA) (Pub. L. 107-347, December 17, 2002) (Docket ID 0088,
Attachment 2). For example, the Chamber of Commerce noted that CIPSEA
prohibits BLS from releasing establishment-specific injury and illness
data to the general public or to OSHA, and that OSHA has not adequately
addressed how the release of part 1904 information under this
rulemaking is consistent with the Congressional mandate expressed in
the law.
    In response, OSHA notes that CIPSEA provides strong confidentiality
protections for statistical information collections that are conducted
or sponsored by Federal agencies. The law prevents the disclosure of
data or information in identifiable form if the information is acquired
by an agency under a pledge of confidentiality for exclusively
statistical purposes (see Section 512(b)(1)). BLS, whose mission is to
collect, process, analyze, and disseminate statistical information,
uses a pledge of confidentiality when requesting occupational injury
and illness information from respondents under the BLS Survey.
    The provisions of CIPSEA apply when a Federal agency both pledges
to protect the confidentiality of the information it acquires and uses
the information only for statistical purposes. Conversely, the
provisions of CIPSEA do not apply if information is collected or used
by a Federal agency for any non-statistical purpose. As noted elsewhere
in this document, the information collected and published by OSHA in
the final rule will be used for several non-statistical purposes,
including for the targeting of OSHA enforcement activities. Therefore,
the CIPSEA confidentiality provisions are not applicable to the final
rule.
12. Administrative Issues
a. Public Hearing
    The Chamber of Commerce recommended that OSHA hold formal public
hearings throughout the United States for this rulemaking (Docket ID
0088, Attachment 2). The Chamber felt that, given both the burden on
employers and the far-reaching implications of publishing confidential
and proprietary information, formal public hearings were necessary to
give people outside Washington, DC the opportunity to participate in
the rulemaking process. Additionally, the National Propane Gas
Association commented that OSHA should hold ``public listening sessions
to solicit more concepts from employers, employees, and other
stakeholders'' (Docket ID 0050).
    OSHA considered these requests and is not persuaded that hearings
or public listening sessions are required or necessary. First, as to
whether a hearing is required, because this rulemaking involves a
regulation rather than a standard, it is governed by the notice and
comment requirements in the APA (5 U.S.C. 553) rather than Section 6 of
the OSH Act (29 U.S.C. 655) and 29 CFR 1911.11. Section 6 of the OSH
Act and 29 CFR 1911.11 only apply to promulgating, modifying, or
revoking occupational safety and health standards. Therefore, the OSH
Act's requirement to hold an informal public hearing (29 U.S.C.
655(b)(3)) on a proposed rule, when requested, does not apply to this
rulemaking.
    Similarly, Section 553 of the APA does not require a public
hearing. Instead, it states that the agency must ``give interested
persons an opportunity to participate in the rulemaking through
submission of written data, views, or arguments with or without
opportunity

for oral presentation'' (5 U.S.C. 553(c)). In the NPRM, OSHA invited
the public to submit written comments on all aspects of the proposal
and received 87 comments in response (see 87 FR 18555). OSHA believes
that interested parties had a full and fair opportunity to participate
in the rulemaking and comment on the proposed rule through the
submission of written comments. This belief is supported by the fact
that OSHA extended the comment period for an additional thirty days
based on requests from the public (87 FR 31793). With that extension,
interested parties were afforded 92 days to review and comment on
OSHA's proposal. OSHA did not receive any requests to further extend
the comment period.
    Second, as to the necessity of the hearing to provide interested
parties outside of Washington, DC an opportunity to participate in the
rulemaking process, or holding public listening sessions, OSHA does not
believe it needs to do so for the same reasons it does not find that
the APA requires a hearing. Specifically, the opportunity for notice
and comment afforded by the NPRM was sufficient to both allow
participation by interested parties and fully develop the record.
b. The Advisory Committee on Construction Safety and Health (ACCSH)
    The National Association of Homebuilders (NAHB) commented that OSHA
must seek input from the Advisory Committee on Construction Safety and
Health (ACCSH) during this rulemaking ``to better understand the
impacts and consequences of its proposal'' (Docket ID 0059).
    As pointed out by NAHB in their comments, ACCSH is a continuing
advisory body established under Section 3704(d) of the Contract Work
Hours and Safety Standards Act (40 U.S.C. 3701 et seq., commonly known
as the Construction Safety Act), to advise the Secretary of Labor and
Assistant Secretary of Labor for Occupational Safety and Health in the
formulation of construction safety and health standards and policy
matters affecting federally financed or assisted construction. In
addition, OSHA's regulation at 29 CFR 1912.3 provides that OSHA must
consult with ACCSH regarding the setting of construction standards
under the OSH Act.
    OSHA notes that both the Construction Safety Act (40 U.S.C.
3704(a)) and 29 CFR 1912.3 only require OSHA to consult with ACCSH
regarding the formulation of new construction ``standards.'' As
discussed above, the requirements in 29 CFR part 1904 are regulations,
not standards. Therefore, as NAHB itself acknowledged in its comment
(``the statute and the agency's own regulations only require OSHA to
consult with the ACCSH regarding the setting of construction standards,
and not regulations'' (Docket ID 0059)), OSHA was not required to
consult with ACCSH in formulating this final regulation. In addition,
as noted in the NPRM, OSHA consulted and received advice from the
National Advisory Council on Occupational Safety and Health (NACOSH)
prior to issuing the proposed rule. NACOSH indicated its support for
OSHA's efforts, in consultation with NIOSH, to modernize the system for
collection of injury and illness data to assure that the data are
timely, complete, and accurate, as well as accessible and useful to
employees, employers, government agencies, and members of the public.
c. Reasonable Alternatives Considered
    Associated Builders and Contractors commented that under the APA,
OSHA is required ``to consider reasonable alternatives to its proposed
reversal of the current reporting requirements,'' and asserts that
``the failure to do so will likely lead to nullification upon judicial
review'' (Docket ID 0071). In response, OSHA notes that the Supreme
Court has held that an agency is not required to ``consider all policy
alternatives in reaching [its] decision,'' but when an agency rescinds
a prior policy, it must consider the alternatives that are ``within the
ambit of the existing [policy]'' (Dep't of Homeland Security v. Regents
of the Univ. of Cal., 140 S. Ct. 1891, 1913 (2020) (alterations in
original)).
    The commenter does not point to a particular policy alternative
that OSHA failed to consider, nor is OSHA required to consider every
possible policy alternative. To the extent the comment suggests that
OSHA should have considered, as an alternative, maintaining the
requirements of the 2019 rule, OSHA has complied with this requirement.
As explained in the NPRM, OSHA proposed requiring establishments with
100 or more employees at any time during the previous calendar year,
and in an industry listed in proposed appendix B to subpart E, to
electronically submit certain information from OSHA Forms 300, 301, and
300A (87 FR 18537). This was a change from the 2019 final rule, which
had removed the requirement for the annual electronic submission of 300
and 301 data to OSHA because of both the risk of disclosure of
sensitive worker information and resource concerns. In the NPRM, OSHA
explained that it had preliminarily determined that the reasons given
in the preamble to the 2019 rule for the removal of the 300 and 301
data submission requirement were no longer compelling. The agency
discussed in detail the ways in which the benefits of collecting data
from the 300 and 301 forms outweighed the slight risk to employee
privacy and explained how technological improvements have mitigated
resource concerns (87 FR 18537-18542). The NPRM also explained the ways
in which publication of 300 and 301 data may benefit interested parties
and improve worker safety and health (87 FR 18542-18543). Furthermore,
in Section III.B of this Summary and Explanation, OSHA has discussed
these issues in further detail and responded to a number of comments
opposing the new reporting requirement. By analyzing these issues and
responding to comments, OSHA has weighed the proposal against
maintaining the status quo and provided a well-reasoned explanation for
its decision, which illustrates OSHA's consideration of alternatives to
its proposal and fulfills its obligations under the APA.
    OSHA also considered alternatives to several aspects of this final
rule. In the preliminary economic analysis of the NPRM, the agency
explained that appendix A is based on 2011-2013 injury rates from the
SOII, and that OSHA was not proposing to modify appendix A because it
took several years for the regulated community to understand which
industries were required to submit information and which were not (87
FR 18552). However, OSHA asked for comment on a possible alternative:
updating appendix A to reflect 2017-2019 injury rates, which would
result in the addition of one industry and the removal of 13 (87 FR
18552-53). Additionally, OSHA explained that the 2016 final rule did
not include a requirement to regularly update the list of designated
industries in appendix A because it believed that moving industries in
and out of the appendix would be confusing (87 FR 18553). The agency
requested comment on another possible alternative: regularly updating
the list of designated industries in proposed appendix B (87 FR 18553).
In Section III.A of this Summary and Explanation, OSHA has responded to
the comments received in response to the first alternative and provided
explanations for its decision not to adopt the alternative. Likewise,
in Section III.B of this Summary and Explanation, OSHA responded to
comments received in response to the

second alternative, and its decision not to adopt that alternative.
    OSHA also proposed to change the requirement in Sec.  1904.41(a)(1)
that required establishments with 250 or more employees, in all
industries routinely required to keep OSHA injury and illness records,
to electronically submit information from their 300A to OSHA once a
year. The proposal would have required this submission only for
establishments in industries listed in appendix A, thus reducing the
number of establishments required to electronically submit 300A data
(see 87 FR 18536). The agency received many comments on the proposal,
which overwhelmingly opposed it, and urged OSHA to retain the existing
requirement for establishments with 250 or more employees that are
normally required to report under part 1904 to submit data from their
300As. In Section III.A of this Summary and Explanation, these comments
are discussed in greater detail, as is OSHA's explanation for rejecting
the proposed change and retaining current reporting requirements for
Form 300A data.
    OSHA's presentation of proposed alternatives, analysis of comments,
and ultimate decisions to reject those proposals illustrates OSHA's
consideration of alternatives within the ambit of its current policy.
For these reasons, OSHA has met its obligations under the APA to
consider alternatives to its proposal.

IV. Final Economic Analysis and Regulatory Flexibility Certification

A. Introduction

    As described above, OSHA is amending its recordkeeping regulations
in 29 CFR part 1904 to revise the requirements for the electronic
submission of information from employers' injury and illness
recordkeeping forms. Specifically, OSHA is amending its recordkeeping
regulation at Sec.  1904.41 to require establishments with 100 or more
employees in certain designated industries (i.e., those on appendix B
in subpart E of part 1904) to electronically submit information from
their OSHA Forms 300 and 301 to OSHA once a year. This is the only new
requirement of the final rule, and therefore the only one that imposes
new costs on employers. The other main provisions in the final rule,
which involve submission of data from the Form 300A annual summary,
represent non-substantive changes to requirements that already exist.
OSHA intends to post the data from the annual electronic submissions on
a public website after identifying and removing information that could
reasonably be expected to identify individuals directly, such as
individuals' names and contact information.
    Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of the intended regulation and, if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, and public health and
safety effects; distributive impacts; and equity). Executive Order
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This rule is not an economically significant regulatory action under
Section 3(f) of Executive Order 12866 and has been reviewed by the
Office of Information and Regulatory Affairs in the Office of
Management and Budget, as required by executive order.
    As explained in this analysis, OSHA estimates that this rule will
have economic costs of $7.7 million per year. These costs include $7.1
million per year to the private sector to become familiar with the
rule's requirements, update software, and submit forms electronically
to OSHA, and $0.6 million per year to the government for processing the
data, updating and maintaining software, and providing additional IT
support. OSHA estimates average costs of $136 per year for affected
establishments (those with 100 or more employees in NAICS industries
listed on appendix B of subpart E of part 1904), annualized over 10
years with a discount rate of seven percent.
    The final rule is not a significant regulatory action under
Executive Order 12866 Section 3(f)(1), and it is not a ``major rule''
under the Congressional Review Act (5 U.S.C. 801 et seq.). The agency
estimates that the rulemaking imposes far less than $100 million in
annual economic costs. In addition, it does not meet any of the other
criteria specified by the Congressional Review Act for an economically
significant regulatory action or major rule.\18\ This Final Economic
Analysis (FEA) addresses the costs, benefits, and economic impacts of
the rule.
---------------------------------------------------------------------------

    \18\ The Chamber of Commerce objected to the preliminary finding
that this rule is not an economically significant regulatory action
under Executive Order 12866 (Ex. 88), arguing that the first-year
costs of compliance require such a finding. This assertion is based
on the Chamber of Commerce's own estimates of the costs of
compliance with this rule, which are significantly higher than
OSHA's. The Chamber estimates first-year costs of $130 million,
whereas OSHA's estimated annual costs in the FEA to affected
employers are just over $7 million. The Chamber of Commerce's more
specific comments regarding costs are discussed throughout this
section.
---------------------------------------------------------------------------

B. Changes From the Preliminary Economic Analysis (PEA) (Reflecting
Changes in the Final Rule From the Proposal)

    The final rule makes limited substantive changes to employer
obligations when compared to the requirements that were costed as part
of the proposed rule. These changes, as described in more detail below,
are to the requirement for establishments with 250 or more employees to
submit data from their 300A annual summaries to OSHA and to the
industries included on appendix B to subpart E of part 1904.
    More generally, the final rule does not add to or change any
employer's obligation to complete, retain, and certify injury and
illness records under OSHA's regulations at 29 CFR part 1904. The final
rule also does not add to or change the recording criteria or
definitions for these records. Nor does the final rule change the
requirement to electronically submit information from the OSHA 300A
Annual Summary. As discussed in Section III.A of the Summary and
Explanation, the final rule does not remove the reporting requirement
from any establishment that is currently required to electronically
report Form 300A information to OSHA nor impose a new reporting
requirement on any establishment that is not currently required to
electronically report Form 300A information to OSHA.
1. Continued Submission of OSHA 300A Annual Summaries by Establishments
With 250 or More Employees
    In the NPRM, OSHA proposed removing the requirement for
establishments with 250 or more employees in select industries to
submit information from their OSHA 300A annual summary forms
electronically. To reflect this proposed change, OSHA estimated in its
PEA that the reduction in the number of establishments required to
submit this information would result in a total annual cost savings of
$27,077 (87 FR 18549). For this final rule, as explained in Section
III.A of the Summary and Explanation, OSHA has decided not to make the
proposed change and to retain the existing requirement. Therefore,
these cost savings have been removed from the cost analysis.
2. Additional Appendix B Industries
    In the NPRM, the agency proposed a selected list of industries, in
appendix B, to designate which establishments

with 100 or more employees would have to submit information from their
OSHA Form 300 Log and Form 301 Incident Reports electronically. The
industries on proposed appendix B were based on the average total case
rate (TCR) of injuries and illnesses in each industry. Because the
requirement for establishments in industries on appendix B to submit
data from Forms 300 and 301 is a new requirement, OSHA analyzed the
costs and impacts to establishments in those industries in the PEA. For
the final rule, OSHA has decided to add additional industries to the
list of industries that were on appendix B in the proposed rule; these
additional industries are listed in Table 1, below. As explained in
Section III.B.1 of the Summary and Explanation, OSHA has decided to add
industries from appendix A that meet the criteria of having either a
high DART rate (defined as 1.5 times the private industry DART rate) or
a high fatality rate (defined as 1.5 times the private industry
fatality rate). Employers that have 100 or more employees and are in an
industry listed on final appendix B must submit information from their
Forms 300 and 301 to OSHA, electronically, on an annual basis.

                                     Table 1--Industries Added to Appendix B
----------------------------------------------------------------------------------------------------------------
                                                                                High fatality  rate
        2017 NAICS 4-digit                   Industry           High DART rate criteria          criteria
----------------------------------------------------------------------------------------------------------------
1133..............................  Logging...................  No.....................  Yes.
1142..............................  Hunting and Trapping......  Yes....................  No.
3379..............................  Other Furniture Related     Yes....................  No.
                                     Product Manufacturing.
4239..............................  Miscellaneous Durable       No.....................  Yes.
                                     Goods Merchant
                                     Wholesalers.
4853..............................  Taxi and Limousine Service  No.....................  Yes.
4889..............................  Other Support Activities    Yes....................  No.
                                     for Transportation.
----------------------------------------------------------------------------------------------------------------

    With the additions in Table 1, above, the final appendix B to
subpart E is as follows:

------------------------------------------------------------------------
            NAICS                               Industry
------------------------------------------------------------------------
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.
1133.........................  Logging.
1141.........................  Fishing.
1142.........................  Hunting and Trapping.
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 (except Aluminum)
                                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 (including Fixtures)
                                Manufacturing.
3379.........................  Other Furniture Related Product
                                Manufacturing.
4231.........................  Motor Vehicle and Motor Vehicle Parts and
                                Supplies Merchant Wholesalers.
4233.........................  Lumber and Other Construction Materials
                                Merchant Wholesalers.
4235.........................  Metal and Mineral (except Petroleum)
                                Merchant Wholesalers.
4239.........................  Miscellaneous Durable Goods 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.
4853.........................  Taxi and Limousine Service.
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.
4889.........................  Other Support Activities for
                                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 (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.
6243.........................  Vocational Rehabilitation Services.
7111.........................  Performing Arts Companies.
7112.........................  Spectator Sports.
7131.........................  Amusement Parks and Arcades.
7211.........................  Traveler Accommodation.
7212.........................  RV (Recreational Vehicle) Parks and
                                Recreational Camps.
7223.........................  Special Food Services.
------------------------------------------------------------------------

3. Updated Data
    The FEA has updated data used in the PEA to the most recent data
available. The data from the PEA and the updated data used for this FEA
appear in Table 2, below.

                                                          Table 2--Data in the PEA and the FEA
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                   PEA estimates                                                                FEA estimates
--------------------------------------------------------------------------------------------------------------------------------------------------------
              Name                       Value                    Source                   Name                Value                    Source
--------------------------------------------------------------------------------------------------------------------------------------------------------
Base Wages SOC 19-5011..........  $37.55.............  BLS OEWS 5/2020............  Base Wages SOC 19-  $37.86.............  BLS OEWS 5/2021.\1\
                                                                                5011 (safety
                                                                                specialist).
                                                                                Base Wages 15-1252  $58.17.............  BLS OEWS 5/2021.\1\
                                                                                (software
                                                                                developer).
Fringe Benefits Civilian........  0.312..............  BLS ECEC 6/2021............  Fringe Benefits     0.310..............  BLS ECEC 9/2022.\2\
                                                                                Civilian.
Base Wages GS-13 Step 6.........  $48.78.............  OMB FY 2020................  Base Wages GS-13    $55.06.............  OMB 2023.\3\
                                                                                Step 6.
Fringe Benefits Government......  0.381..............  BLS ECEC 6/2021............  Fringe Benefits     0.381..............  BLS ECEC 9/2022.\2\
                                                                                Government.
Appendix B Establishments.......  48,919.............  OSHA/OSA 2021..............  Appendix B          52,092.............  OSHA/OSA 2022.\4\
                                                                                Establishments.
Total Submissions...............  718,316............  OSHA/OSA 2021..............  Total Submissions.  766,257............  OSHA/OSA 2022.\4\
Manual Submission Time 300/301..  10 minutes.........  PRA 04/22 \5\..............  Manual Submission   15 minutes.........  OSHA/OSA. 2022.\4\
                                                                                Time 300/301.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ BLS May 2021 Occupational Employment and Wage Statistics data, released March 31, 2022. https://www.bls.gov/oes/current/oes195011.htm#nat. Accessed
  October 05, 2022.
\2\ BLS September 2022 Employer Costs for Employee Compensation, released December 15, 2022. https://www.bls.gov/news.release/pdf/ecec.pdf. Accessed
  February 20, 2023.
\3\ OMB January 2023 Salary Table 2022-RUS. https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2023/RUS_h.pdf.
  Accessed February 22, 2023.
\4\ Docket ID 0103.
\5\ Recordkeeping and Reporting Occupational Injuries and Illnesses (29 CFR part 1904). OMB Control #1218-0176.

C. Cost

Sec.  1904.41(a)(2): Annual Electronic Submission of Information From
OSHA Form 300 Log of Work-Related Injuries and Illnesses and OSHA Form
301 Injury and Illness Incident Report by Establishments With 100 or
More Employees in Designated Industries
    OSHA is retaining the same cost methodology in this FEA as in the
PEA. In the PEA, the agency estimated the cost of electronic data
submission per establishment by multiplying the hourly compensation (in
dollars) of the person expected to submit the records electronically by
the time required for the submission. OSHA then multiplied this cost
per establishment by the estimated number of Appendix B establishments
required to submit data, resulting in the total estimated cost of this
part of the proposed rule.
    OSHA also calculated the estimated cost for establishments to
become familiar with the process of electronically submitting the
required information. The total estimated cost of this part of the
proposed rule was calculated by multiplying the hourly wages (in
dollars) of the person expected to submit the records electronically by
the time required to learn how to use OSHA's system. The resulting
value was then multiplied by the number of establishments in appendix B
(87 FR 18549-551).
1. Wages
a. Wage Estimates in the PEA
    OSHA has retained the same wage assumptions and methodology from
the PEA but has updated the figures to include current data. In the
PEA, the agency estimated the compensation of the person expected to
perform the task of electronic data submission, assuming that this task
would be performed by an Occupational Health and Safety Specialist. As
indicated in Table 2, above, the agency used BLS's Occupational
Employment and Wage Statistics (OEWS) data to determine that the mean
hourly wage for an Occupational Health and Safety Specialist was $37.55
per hour. Then, OSHA used June 2021 data from the BLS National
Compensation Survey to derive a mean fringe benefit factor of 1.45 for
civilian workers in general.\19\ OSHA then multiplied the mean hourly
wage ($37.55) by the mean fringe benefit factor (1.45) to obtain an
estimated total compensation (wages and benefits) for Occupational
Health and Safety Specialists of $54.58 per hour ([$37.55 per hour] x
1.45). OSHA next applied a 17 percent overhead rate to the base wage
([$37.55 per hour] x 0.17), totaling $6.38 per hour.\20\ The $6.38 was
added to the total compensation ($54.58), yielding a fully loaded wage
rate of $60.96 [$54.58 + $6.38] per hour.
---------------------------------------------------------------------------

    \19\ Fringe benefit factor calculated as [1/(1-0.312)], where
0.312 is the proportion of the average total benefits constituted by
fringe benefits among civilian workers in all industries, as
reported on Table 2 of the BLS's ECEC report, June 2021: https://www.bls.gov/news.release/archives/ecec_09162021.pdf.
    \20\ Seventeen percent is OSHA's standard estimate for the
overhead cost incurred by the average employer.
---------------------------------------------------------------------------

b. Comments on OSHA's Wage Estimates
    Some commenters expressed the opinion that the wage rate estimates
used in the PEA were too low. For example, the National Federation of
Independent Business (NFIB) and the Chamber of Commerce commented that
the potential impacts from OSHA publishing work-related injury and
illness information would require that companies have senior executives
and legal counsel review the logs for both employee privacy and
reputational harm (Docket IDs 0036, 0088). The Chamber estimated that
involving executives and legal counsel would increase the wage rate
used for this analysis to $67.01 per hour (Docket ID 0088).
    OSHA concludes that an appropriate wage rate has been used for this
rule. While some companies may choose to involve executives or lawyers
in the submission process, others will delegate duties to
administrative assistants or office managers. OSHA considers the wage
rate for Occupational Safety and Health Specialists to represent a
rough average among the wages for various possible job categories that
might submit the data under this rule.\21\ It should be emphasized,
however, that this wage is intended to reflect only the cost of
entering the data to submit it electronically to the agency--the
employer is already responsible for recording the data correctly. If
some employers consider it necessary for employees in very high wage
categories to review the cases that are already required to be
recorded, that is not an incremental cost of this rule.\22\ In
addition, the Chamber of Commerce commented that OSHA is using an
incorrect overhead estimate when calculating the loaded wage of the

Occupational Health and Safety Specialist (Docket ID 0088). It argued
that the correct factor for computation of overhead is 0.6949 (rather
than OSHA's longstanding reliance on the PEA's 0.17 for overhead
costs), which the commenter sourced from the Bureau of Economic
Analysis, Table 7 (Relation of Gross Domestic Product, Gross National
Income, and National Income). The Chamber of Commerce's overhead factor
estimate would increase the overhead amount from $6.38 per labor hour
to $26.09 per labor hour.
---------------------------------------------------------------------------

    \21\ This wage category has also been widely used for similar
administrative purposes for other OSHA rulemakings, without
controversy (e.g., the 2016 recordkeeping rulemaking--see 81 CFR
29675).
    \22\ One commenter even suggested the physicians may be needed
to determine whether injuries were work-related now that the injury
and illness reports will be made public (Docket ID 0088). However,
like related discussions elsewhere in this FEA, this obligation
(i.e., the need to determine work-relatedness of an injury) existed
prior to this rule. Because it is not an additional cost created by
this rule, it is not included.
---------------------------------------------------------------------------

    The agency believes the Chamber has incorrectly inflated the
``overhead'' cost factor by including what it refers to as a ``profit
opportunity cost element'' (Docket ID 0088). The overhead rate that
OSHA uses in this cost analysis (17 percent) is based on the EPA's
``Wage Rates for Economic Analyses of the Toxics Release Inventory
Program,'' June 10, 2002. OSHA has used this overhead rate for several
economic impact analyses previously, and it is a standard estimate for
this agency, the Employment and Training Administration,\23\ the Wage
and Hour Division,\24\ and the EPA.\25\ As expressed in a prior OSHA
rule, OSHA does not believe the inclusion of ``profit opportunity cost
elements'' in an overhead estimate is appropriate in the context of
this economic analysis.\26\
---------------------------------------------------------------------------

    \23\ See ETA Final Rule, Adverse Effect Wage Rate Methodology
for the Temporary Employment of H-2A Nonimmigrants in Non-Range
Occupations in the United States, 88 FR 12760, 12788 (Feb. 28,
2023).
    \24\ See Wage and Hour Division Final Rule, Increasing the
Minimum Wage for Federal Contractors, 86 FR 67126, 67205 (Nov. 24,
2021).
    \25\ For an example of an earlier OSHA economic analysis that
used the EPA overhead rate, see OSHA's final rule on Walking-Working
Surfaces and Personal Protective Equipment (Fall Protection Systems)
at 81 FR 82494, 82931 (Nov. 18, 2016).
    \26\ As noted in a previous related Federal Register notice (see
81 FR 29683), in principal, the labor costs of affected workers
reflect the opportunity costs of that labor.
---------------------------------------------------------------------------

c. Wage Estimates in the FEA
    For the final rule, OSHA has updated the fully loaded wages to
$61.31 per hour, using the same calculation method as in the PEA and
the updated data listed in Table 2, above.\27\ Specifically, OSHA
multiplied the mean hourly wage ($37.86) by the mean fringe benefit
factor (1.45) \28\ to obtain an estimated total compensation (wages and
benefits) for Occupational Health and Safety Specialists of $54.87 per
hour ([$37.86 per hour] x 1.45). OSHA next applied a 17 percent
overhead rate to the base wage ([$37.86 per hour] x 0.17), totaling
$6.44.\29\ The $6.44 was added to the total compensation ($54.87)
yielding a fully loaded wage rate of $61.31 [$54.87 + $6.44]. In
response to comments, OSHA has added additional costs to the FEA that
use loaded wages for a Software Developer at $94.19,\30\ based on an
hourly base wage of $58.17, in the calculation of those costs.
---------------------------------------------------------------------------

    \27\ See Docket ID 0103 for a spreadsheet with the full
calculations. Slight discrepancies in results are likely due to
rounding.
    \28\ The fringe benefit factor was calculated as [1/(1-0.310)],
where 0.310 is the proportion of average total benefits constituted
by fringe benefits among civilian workers in all industries, as
reported on Table 2, above.
    \29\ Seventeen percent is OSHA's standard estimate for the
overhead cost incurred by the average employer.
    \30\ For BLS Occupational Code 15-1252 ``Software Developer,''
total compensation is $84.30 ($58.17 mean hourly wage + $26.13
fringe benefits) plus $9.89 in overhead [$58.17 x 0.17].]
---------------------------------------------------------------------------

2. Estimated Case Counts
    In the PEA, based on the 2020 data collection of 2019 OSHA Form
300A data, OSHA estimated that establishments with 100 or more
employees, in proposed appendix B industries, reported 718,316 cases to
OSHA. The Phylmar Regulatory Roundtable (PRR) asserted, without
pointing to specific support, that ``industries required to submit have
a history of higher incident rates'' and questioned the average of 14.7
cases per establishment on this basis (Docket ID 0094). PRR stated that
``it does not seem plausible that there are enough establishments with
zero cases to bring the estimates this low.'' In support, PRR described
several large employers, with up to 12,000 employees each, that
recorded more than 14.7 cases (up to 155 cases) in certain years. OSHA
notes that it used the average number of cases submitted by
establishments with 100 or more employees in NAICS industries on
appendix B. PRR's limited examples do not disturb the calculated
averages, which are based on data from affected establishments. OSHA
used the average number of cases on Form 300A submissions across all
affected establishments to represent the average number of cases an
establishment would submit via manual entry. For this final rule, OSHA
has updated the estimate of total cases reported by establishments with
100 or more employees in appendix B industries to 766,257 cases,\31\ as
mentioned in Table 2, above. This estimate has been updated from the
PEA. OSHA has expanded the number of establishments to include all
establishments with at least 100 employees in industries that are on
final appendix B, which includes six industries that were not included
on proposed appendix B.
---------------------------------------------------------------------------

    \31\ OSHA's estimate of injury and illness cases is based on
calendar year 2019 data submitted to the agency through the Injury
Tracking Application (ITA) (Docket ID 0106). Establishments with 100
or more employees in appendix B industries reported a total of
766,257 recordable fatalities, injuries, and illnesses for that
year.
---------------------------------------------------------------------------

3. Familiarization
    In the PEA, OSHA estimated that establishments would take 10
minutes, on average, to familiarize themselves with changes to the
recordkeeping requirements in the proposed rule. Based on this, the
agency calculated a one-time cost for familiarization of $497,033
[(48,919 establishments) x (10 minutes/establishment) x (1 hour/60
minutes) x ($60.96/hour)]. The number of establishments in the PEA was
based on submissions in 2019 to the ITA for establishments that were in
the proposed appendix B in the NPRM.
    The U.S. Poultry and Egg Association, the North American Meat
Institute, the Chamber of Commerce, and the Phylmar Regulatory
Roundtable argued that OSHA undercounted the amount of time required to
complete rule familiarization for the proposed rule (Docket IDs 0054,
0070, 0088, 0094). The Chamber of Commerce asserted that OSHA's
estimate ``ignores the familiarization time cost that establishments
not covered will incur to determine their non-covered status, and it
suggests an extremely optimistic but empirically baseless view of the
time that will be required by those covered to read the rule, review
its requirements relative to their current operations and procedures,
identify and implement new policies and procedures to comply with the
new rule, and to train administrative and operational employees in
their new compliance duties'' (Docket ID 0088). Other commenters
claimed additional time would be required for processing by a corporate
safety department subject matter expert (Docket ID 0054) and for
``legal analysis'' (Docket ID 0070).\32\
---------------------------------------------------------------------------

    \32\ One of those commenters suggested that OSHA include costs
for creating training materials and conducting training sessions as
part of familiarization (Docket ID 0054). Another made a more
general statement that the agency's estimate for rule
familiarization did not account for the time it will take to prepare
or implement OSHA's proposed changes or develop processes to comply
with the new requirements (Docket ID 0094). These elements are
discussed under Training later in this analysis.
---------------------------------------------------------------------------

    For the establishments that do not need to submit the Form 300 and
301 data but must determine if they are subject to the requirement, the
Chamber of Commerce estimated, based on unspecified sources, that the
1.9 million establishments with 10 to 99 employees will spend 5 minutes
determining that

they are not affected. According to the Chamber of Commerce, at $1.65
per minute, the total cost would be $15.9 million. Additionally, ``for
the 172,277 establishments with 100 or more employees, on average a 15-
minute review by senior managers or in-house legal counsel may be able
to answer the basic affected or not affected question for an aggregate
familiarization cost of $4.3 million.'' (Docket ID 0088).
    Finally, the Chamber of Commerce asserted that rule familiarization
is more complicated than OSHA estimates. The commenter believed that
OSHA failed to consider that each establishment that has determined
that it is subject to the reporting requirement ``must now consider how
the new requirements impact existing policies and procedures, what are
the risks of reputational damage or of employee privacy violation
liability and how can those risks be mitigated by changing policies and
procedures'' (Docket ID 0088). For the PEA's estimated 48,919
establishments required to comply with the new reporting requirement,
the commenter estimates a lower bound estimate of 8 hours of
professional time, which would result in an aggregate cost of $38.7
million. OSHA does not, however, require such considerations: the final
rule has accounted for privacy concerns (comments on costs related to
privacy are addressed later in this section) and, as discussed later,
employers should already be familiar with the reporting system because
they are using it to submit Form 300A data. Furthermore, the
commenter's recommendation of an average of 8 hours per establishment
vastly exceeds OSHA's traditional estimates of familiarization time.
For comparison, in the 2016 final recordkeeping rule, OSHA included
only 10 minutes for familiarization costs, which included the time for
establishments to create accounts and enter basic establishment
information in the ITA (see 81 FR 29680), none of which has to be done
again for purposes of complying with the final rule at issue here.
    OSHA disagrees that more than 10 minutes will be required for rule
familiarization in this case. Under the existing recordkeeping rule,
employers are already required to keep part 1904 injury and illness
records. In addition, all establishments that will have to submit case-
specific information from their Form 300 Log and 301 Incident Report
under this rule are already required to submit establishment
information from their Form 300A Annual Summary, using the same
interface (the ITA) they will use to submit their case information.
OSHA intends to notify all establishments required to submit data under
the new rule of this new obligation. In addition, OSHA will update its
online ITA application to be consistent with this final rule. Employers
unsure about whether they are covered by this final rule can use this
application (at https://www.osha.gov/itareportapp) to immediately
determine their data submission obligations. Thus, there will be no
need for establishments to spend time to determine whether they are
affected by the final rule or not. Altogether, OSHA concludes that 10
minutes is an appropriate amount of time for employers to become
familiar with the rule (with assistance from OSHA's application or OSHA
website materials, if necessary).
    OSHA has decided to retain the assumptions and the methodology from
the PEA for this final rule. Using the updated numbers reported in
Table 2, above, OSHA now estimates the one-time cost for
familiarization as $532,257, calculated as [(52,092 establishments) x
(0.17 hours/establishment) \33\ x ($61.31/hour)]. Annualizing this rate
over ten years with a 7 percent discount rate yields an annual cost of
$75,781 \34\ to the private sector.
---------------------------------------------------------------------------

    \33\ 0.17 hours is a rounded value representing 10 minutes, or
10/60th of an hour, per establishment.
    \34\ $62,397 annualized over ten years with a 3 percent discount
rate.
---------------------------------------------------------------------------

4. Record Submission
    For the time required for the data submission in the PEA, OSHA used
the estimated unit time requirements reported in OSHA's paperwork
burden analysis for 29 CFR part 1904 Recording and Reporting
Occupational Injuries and Illnesses (OMB Control Number 1218-0176). The
agency estimated that it would take 10 minutes to submit information
about each case manually; this estimate does not apply when
establishments submit the records as batch files, because batch files
are a means of submitting multiple cases at one time.
    In the PEA, OSHA estimated that there would be 48,919
establishments reporting 718,386 cases total, or 14.7 cases per
establishment, on average (87 FR 18549-50). The agency estimated that
about half of all reporting establishments (24,460) would submit half
of the total cases (359,193 cases) via one batch file per
establishment.\35\ This yielded an estimated cost of $248,517 [(24,460
establishments) x (10 minutes/establishment) x (1 hour/60 minutes) x
($60.96/hour)]. The average cost per establishment was estimated to be
$10.16 per establishment for establishments submitting via batch file.
---------------------------------------------------------------------------

    \35\ Form 300A data submitted to OSHA through the Injury
Tracking Application (ITA) for 2019 indicated that almost half of
establishments (47 percent) were already submitting their data by
batch file at that time (Docket ID 0103).
---------------------------------------------------------------------------

    OSHA then estimated that the other half of establishments (24,460)
would manually submit each case from their establishment individually.
Using the mean of 14.7 cases per establishment (718,386 total cases
divided by 48,919 total establishments) and an estimated time of 10
minutes per case, OSHA estimated 147 minutes per establishment to
submit records electronically, on an individual case basis. This
produced a total cost for manual submission of $3,649,520 [(24,460
establishments) x (0.17 hours/case) \36\ x (14.7 cases) x ($60.96/
hour)], or $149 per establishment]. Finally, OSHA summed the estimated
batch-file submissions ($248,517) and manual submission ($3,649,520),
which resulted in estimated total cost of $3,898,037 to submit the
718,316 records.
---------------------------------------------------------------------------

    \36\ 0.17 hours is a rounded value representing 10 minutes, or
10/60th of an hour, per case.
---------------------------------------------------------------------------

    Dow, the Chamber of Commerce, and the Phylmar Regulatory Roundtable
(PRR) commented that OSHA is underestimating the amount of time
required for an establishment to submit Form 300A information (Docket
IDs 0054, 0088, 0094). Dow said that establishments must spend time to
``locate the website, create an account, retrieve password, read
instructions, gather, and prepare incident information etc.'' (Docket
ID 0054). The commenter indicated that it would take more than 10
minutes per case per establishment. Specifically, it would take 1-2
hours to prepare the submission, and 15-20 minutes per case to input
the information because there are more than 25 fields that must be
filled in. Dow added that when the submission is completed via batch
file, 1-2 hours is required to generate and review the reports for
submission, even if it only takes 10 minutes to actually upload the
300A data. It asserted that this time estimate will only increase with
additional forms (Docket ID 0054).
    The Chamber of Commerce commented that OSHA's reporting burden
estimate of 10 minutes per case is not based on empirical data. It
indicated that this reporting burden should be inclusive of the
following activities: compiling, analyzing, preparing, reviewing
internally, and submitting the data electronically. The Chamber's
estimate was 60 minutes per case using a blended management and
professional rate. It maintained that its

higher time estimate accounted for the ``necessity for internal review
of each case and of the final compiled reports by various levels of
management and internal legal counsel.'' The Chamber added that its
``more realistic estimate of aggregate internal labor time for
preparation and review increases the previous calculation of $11.9
million to $71.1 million. (718,386 cases x 60 minutes per case x $1.65
per minute).'' Finally, the Chamber suggested that firms would need to
hire outside legal counsel to complete their review process which the
Chamber estimated would increase costs by $4.8 million ($6.67 per
minute of outside legal counsel time) for the total estimated 718,386
cases (Docket ID 0088).
    The National Federation of Independent Businesses and the Precision
Machined Products Association commented on the differences in small and
medium employers compared to large employers (Docket IDs 0036, 0055).
These commenters noted that small and medium employers typically cannot
afford the experts, accountants, and lawyers needed to comply with
regulations. Additionally, they asserted that small and medium
employers do not have the resources or technology to submit batch files
and therefore must manually input each case. The Precision Machined
Products Association added that the cost per submission for small and
medium companies is closer to double what OSHA estimated in the PEA
(Docket ID 0055).
    The North American Meat Institute, the Plastics Industry
Association, the Employers E-Recordkeeping Coalition, and the Chamber
of Commerce specifically cited time spent on quality assurance as a
concern (Docket IDs 0070, 0086, 0087, and 0088). The Plastics Industry
Association wrote that ``the cost of quality assurance procedures
necessary to ensure compliance with a proposed rule must be treated as
a component of the burden hours required by the rule. The audit is, in
effect, not a voluntary measure, but one that needs to be incurred to
ensure compliance and avoid over-reporting'' (Docket ID 0086). The
Chamber of Commerce focused on the risk associated with publicly
posting these injury and illness records, which in turn would result in
increased ``pre-submission due diligence'' (Docket ID 0088).
    OSHA concludes that more information must be submitted from the
Form 300 Log and Form 301 Incident Report than from the Form 300A
Annual Summary. Therefore, the agency is adjusting the estimated time
required to manually submit electronic records from 10 minutes per case
per establishment to 15 minutes per case per establishment. Given the
additional amount of information required, OSHA believes that a 50
percent increase in the burden estimate is sufficient. OSHA notes,
however, that employers are likely to spend less time, because
employers will likely only copy and paste information from existing
forms into the fields in OSHA's ITA. Employers for which it takes
longer per case to submit the information could choose instead to
transmit all their data in one batch-file submission.
    OSHA disagrees with commenters' assertions that the final rule
necessitates the use of additional experts, accountants, senior
managers, physicians, or lawyers beyond those employers currently
engage to comply with existing recordkeeping and submission
requirements under part 1904. The final rule does not change employer
obligations beyond the requirement that establishments electronically
submit specific illness and injury information that the establishment
already records. Furthermore, there is a requirement in Sec.  1904.32
for employers to verify the entries on the Form 300 Log to ensure that
they are complete and accurate. Section 1904.32 also requires a company
executive to certify the Form 300A once it is completed, by examining
the Form 300 Log. Costs to perform these verification and certification
tasks were accounted for in the previous rule that imposed these
requirements (see 66 FR 6092-93). Thus, OSHA's expectation is that
employers have already taken measures to ensure the information
employers have recorded and will be submitted is accurate. Any due
diligence or audit measures an establishment chooses to take should
predate this rule and should not be attributed as an additional cost
specific to this rule. Finally, OSHA's estimate of an hourly wage for
the recordkeeper submitting the data is based on the assumption that
this task is performed by a safety and health specialist who is already
familiar with the establishment's safety and health records.
    While OSHA is not requiring submission via batch filing, OSHA
disagrees that smaller companies affected by this rule do not have the
capability to do batch file submissions. Currently, approximately half
of all establishments that are required to submit their records
electronically do so using batch files, and an analysis of that
information shows that smaller establishments actually use batch file
submission more frequently than some categories of larger
establishments.\37\ Further, OSHA believes that the time estimated to
manually upload the required information is appropriate for small,
medium, and large employers. It is also worth reiterating that the new
requirement to submit data from the Form 300 and Form 301 only affects
establishments with more than 100 employees, so the smallest employers
are not affected.
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    \37\ For example, 2019 Form 300A data submitted to OSHA through
the ITA indicate that establishments with 100-199 employees
submitted 50% of data by batch file, which was higher than the
percentage submitted by batch file for employers with 500 or more
employees (Docket ID 0103).
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    A couple of commenters argued that OSHA should account for
additional costs for compliance due to the necessity of maintaining two
sets of records as a result of the final rule's submission requirements
(Docket IDs 0042, 0058). As the Louisiana Chemical Association said,
``[b]esides the out-of-pocket expenses associated with compliance,
there are other administrative burdens, for example, the duplicative
work of maintaining two sets of 300 and 301 forms (a hard copy and one
form for electronic submission with redacted information)'' (Docket ID
0042).
    This rule does not, however, require duplicative recordkeeping. As
noted in Section III.B of the Summary and Explanation, OSHA cautions
employers against including personally identifiable information on the
Forms 300 and 301 when they initially fill out those forms. The forms
themselves contain language about confidentiality of personal
information and indicate that PII should not be included. To the extent
employers choose to include PII on those forms despite these warnings,
it is per a decision by the employer. Such data can be excluded during
data submission to the extent it is on the employer's forms.
Furthermore, as described elsewhere in this preamble, OSHA is taking
multiple steps to protect against the publication of any information
that could reasonably be expected to identify individuals directly,
including not collecting certain information and using de-
identification software to remove any such information that is
submitted by employers.
    OSHA has decided to retain the methodology from the PEA for
estimating the cost of data submission but has added an additional 5
minutes (an increase from 10 to 15) per submitted case for
establishments that do not submit batch files and has

updated other data to more recent figures. Using the updated data in
Table 2, above, OSHA calculated a new average cost per establishment
for batch file submitters of $10.22 per establishment. Additionally,
OSHA calculated an updated cost to those submitting manually of $242.41
per establishment. That yields a total cost for electronic submission
of OSHA Forms 300 and 301 of $133.46 per establishment on average,\38\
or a total of $6.9 million annually, to submit the currently estimated
766,257 records.
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    \38\ The average cost per establishment to submit the Form 300
and 301 data to OSHA ($133.46) was calculated as [(Cost per
establishment to submit batch files ($10.22) x establishments
submitting batch files (24,668)) + (Cost per establishment to submit
individual files ($242.41) x establishments submitting cases
manually (27,424,))]/Total establishments (52,092).
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    The calculations above are based on an estimated 52,092
establishments reporting 766,257 cases total, or 15.82 cases per
establishment submitting manually and 13.48 cases per establishment
reporting with batch-files. An estimated 47 percent of all reporting
establishments (24,668) submitting via batch file would submit 43
percent of the total cases (332,498 cases), at an estimated total cost
of $252,048 [(24,668 establishments) x (0.17 hours/establishment) \39\
x ($61.31/hour)], or $10.22 per establishment on average for batch file
submission. For the other 53 percent of establishments (27,424) that
OSHA estimates would manually submit each case, using OSHA's assumption
of a mean of 15.82 cases per establishment and the increased time of 15
minutes per case, the result is an estimated 237 minutes per
establishment to submit their information electronically each year.
This produces a total cost for manual submission of $6,647,982 [(27,424
establishments) x (0.25 hours/case) \40\ x (15.82 cases) x ($61.31/
hour)], or $242.41 per establishment for manual submission.
---------------------------------------------------------------------------

    \39\ 0.17 hours is a rounded value representing 10 minutes, or
10/60th of an hour, per establishment.
    \40\ 0.25 hours represents 15 minutes, or 15/60th of an hour,
per case.
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    As suggested in the PEA, the agency believes that this approach
likely overestimates costs, because while OSHA's estimates reflect
manual entry of the data for nearly half of establishments, in the
agency's experience, as indicated previously, nearly half of the
covered establishments were already submitting data to the ITA by
uploading a batch file in 2019. This percentage will likely increase
over time as a result of this rule. As indicated elsewhere in the FEA,
OSHA expects more of the cases to be submitted by batch file once this
rule goes into effect, because OSHA expects companies with many
establishments and/or many cases will have computer systems that can
export their part 1904 injury and illness recordkeeping data into an
easily uploaded file format.\41\
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    \41\ OSHA's assumption that batch files are submitted on a per
establishment basis may overestimate the costs of the rule, as batch
files are typically submitted at the firm level on behalf of
multiple establishments. As documented in the accompanying
spreadsheet (Docket ID 0103), if OSHA assumed that batch files are
submitted by firms rather than establishments, the costs would be a
fraction of the estimate presented here--approximately $7,316
annually, as opposed to the estimated $252,048.
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    The agency notes that some establishments will have no recordable
injuries or illnesses in a given year; thus, their time and cost burden
for submission under this rule will be zero. In contrast,
establishments with many recordable injuries and illnesses could have a
time burden of significantly more than the average of about four hours
if they enter the data manually. OSHA believes that establishments with
many cases are likely to submit a single batch file, while
establishments that only have a few cases are more likely to submit
cases manually than by batch file.\42\
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    \42\ For example, data submitted from 2019 Form 300A to OSHA
through the ITA shows submissions from 52,092 establishments with
100+ employees. The information for these establishments was
submitted by 18,156 users. Of those, 716 users submitted the data
for 24,668 establishments and 332,498 recordable cases using batch
files (Docket ID 0103).
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5. Custom Forms
    OSHA received multiple comments regarding the difficulty of
submitting electronic records when the establishments use custom forms
for their recordkeeping. The International Bottled Water Association,
the Plastics Industry Association, the Employers E-Recordkeeping
Coalition, and the Phylmar Regulatory Roundtable (PRR) explained that
forms such as California Form 502025 require most, or all of, the same
information as the OSHA forms (Docket IDs 0076, 0086, 0087, 0094). PRR
noted that forms such as 502025 contain other information that is PII
and are organized differently, both of which mean that manual entry
will take longer than 10 minutes (Docket ID 0094). PRR added that
significant additional time is required to review and ensure PII and
sensitive information is not included. The North American Meat
Institute said that current use of other forms would require
significant administrative burden to translate the required information
into the online form (Docket ID 0070).
    OSHA notes that Sec.  1904.29(a) states that employers must use the
OSHA 300 Log, 301 Incident Report, and 300A Annual Summary--or
equivalent forms--when recording injuries and illnesses under part
1904. Section 1904.29(b)(4) further states that an equivalent form is
one that has the same information, is just as readable and
understandable, and is completed using the same instructions as the
OSHA form it replaces. As discussed earlier in the summary and
explanation of the rule, OSHA acknowledges that while it may be
possible to avoid duplication in recording by reliance on equivalent
forms, it will be necessary in some cases for reporting to re-enter
that information into a system that is compatible with OSHA's system.
OSHA is aware, for instance, that for reporting, many employers use an
insurance form instead of the Form 300 or the Form 301 or supplement an
insurance form by adding any additional information required by OSHA.
The agency notes, however, that use of a custom form for recordkeeping
does not change the information the employer copies into the electronic
system to comply with OSHA data submission requirements, including the
submission requirements included in this final rule. To the extent that
an insurance form or other form includes information not relevant to
OSHA reporting, it would not increase the time and cost for OSHA
reporting. Where relevant, the employer may just skip inapplicable
sections of a custom form when submitting their information to OSHA.
Therefore, the time for transmitting the information from the Forms 300
and 301 is just the time to manually copy the required information into
OSHA's system, regardless of which form the information is recorded on
initially. In addition, the use of custom forms that can capture
information for multiple purposes does not prevent employers from
designing those forms so that they can export the appropriate data and
submit their data to OSHA via batch file.
    While OSHA did not find compelling evidence to increase the
estimated compliance costs based on potential difficulties companies
face from using custom forms, the agency has increased, by 50 percent,
the estimated time it takes to submit records manually in response to
comments received on other issues. This increased time could be
considered as accounting for costs associated with using custom forms
in the event employers face costs due to this issue. Elements of this
discussion run parallel to and may interface with the discussion of
potential software upgrades, discussed below.

6. Batch-File Submissions
    In the PEA, OSHA estimated that half of all respondents would
upload their logs in one batch-file submission. The Strategic
Organizing Center (SOC) expressed strong agreement with OSHA's
assumption that larger, more sophisticated users will use batch file
submission (Docket ID 0079). It added that OSHA's cost estimates, which
rely on this assumption, are appropriate and that OSHA is correct to
not assume widespread use of manual-entry submission. Further, SOC
agreed that OSHA's assumption that half of employers will submit
records manually ``may result in an overestimate of the total and per-
establishment costs of this part of the proposed rule'' (Docket ID
0079).
    The Chamber of Commerce disagreed with OSHA's PEA assumption that
half of the 48,919 affected establishments will be able to
``drastically reduce their report submission times and costs by using a
`batch' process of submitting multiple individual case records through
an electronic portal that OSHA will provide.'' Specifically, it stated
that the assumption is not realistic because the portal has not yet
been built or tested. The Chamber further argued that it would be more
reasonable to assume, at least for the first year of submission and
maybe for subsequent years, that ``all 48,919 affected establishments
will upload the required case information manually or will have to
delete various fields to accommodate data OSHA does not want to
collect.'' This would double the cost of data submission (Docket ID
0088).
    Data from 2019 on usage of batch uploads for OSHA 300A information
indicates that data for approximately 47 percent of establishments were
already being submitted via batch files (Docket ID 0103). For the
purposes of the FEA, OSHA estimates that the usage of batch files
submissions will at least continue at the same rate as was the case in
2019 (47 percent). However, as noted above, OSHA believes it is likely
that batch filing will increase as a result of the requirements
associated with this rule. As a comment from the Laborers Health Safety
Fund of North America emphasized, electronic recordkeeping and data
submission is a more cost-effective way for establishments to meet OSHA
standards (Docket ID 0080). Additionally, Eastern Research Group (ERG)
(Docket ID 0105) interviewed a number of commercial aftermarket
software vendors who remarked that the number of users of their
software is rapidly growing.
    Notwithstanding the agency's belief that electronic submission will
become increasingly common, OSHA has decided to adjust its projected
estimate from the PEA, that 50 percent of establishments would submit
their Form 300 and Form 301 information via a single batch file, based
on OSHA's analysis of existing data collected in 2019. These data show
that approximately 47 percent \43\ of establishments submitted their
records by batch file in 2019. However, to the extent that more
employers continue to adopt this time-saving technology, the cost of
submission will decrease, and the average reporting costs will be below
OSHA's cost estimate in this FEA.
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    \43\ This percent was calculated by dividing the 24,668
establishments submitting individual 300/301 data manually (i.e.,
not by batch file) by the 52,092 total establishments submitting
data (Docket ID 0103).
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7. Software/System Upgrades Needed
    The PEA did not include a cost for employers to upgrade their
systems in order to submit their files electronically or in batch
files. OSHA received several comments on this topic. Electric Boat, the
International Bottled Water Association, and the Employers E-
Recordkeeping Coalition indicated that software currently used by
employers does not easily facilitate transmission of 300 and 301
information to OSHA (Docket IDs 0028, 0076, 0087). The Employers E-
Recordkeeping Coalition stated that the ``costs to modify the internal
software, purchase new software, automate injury and illness
recordkeeping, audit the records, and in many instances, manually key
in huge volumes of data would cost hundreds of thousands of dollars''