[Federal Register Volume 81, Number 92 (Thursday, May 12, 2016)]
[Rules and Regulations]
[Pages 29623-29694]
[FR Doc No: 2016-10443]

Vol. 81

Thursday,

No. 92

May 12, 2016

Part II

Department of Labor

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29 CFR Parts 1904 and 1902

Improve Tracking of Workplace Injuries and Illnesses; Final Rule

Federal Register / Vol. 81 , No. 92 / Thursday, May 12, 2016 / Rules
and Regulations

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Parts 1904 and 1902

[Docket No. OSHA-2013-0023]
RIN 1218-AC49

Improve Tracking of Workplace Injuries and Illnesses

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

ACTION: Final rule.

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SUMMARY: OSHA is issuing a final rule to revise its Recording and
Reporting Occupational Injuries and Illnesses regulation. The final
rule requires employers in certain industries to electronically submit
to OSHA injury and illness data that employers are already required to
keep under existing OSHA regulations. The frequency and content of
these establishment-specific submissions is set out in the final rule
and is dependent on the size and industry of the employer. OSHA intends
to post the data from these submissions on a publicly accessible Web
site. OSHA does not intend to post any information on the Web site that
could be used to identify individual employees.
    The final rule also amends OSHA's recordkeeping regulation to
update requirements on how employers inform employees to report work-
related injuries and illnesses to their employer. The final rule
requires employers to inform employees of their right to report work-
related injuries and illnesses free from retaliation; clarifies the
existing implicit requirement that an employer's procedure for
reporting work-related injuries and illnesses must be reasonable and
not deter or discourage employees from reporting; and incorporates the
existing statutory prohibition on retaliating against employees for
reporting work-related injuries or illnesses. The final rule also
amends OSHA's existing recordkeeping regulation to clarify the rights
of employees and their representatives to access the injury and illness
records.

DATES: This final rule becomes effective on January 1, 2017, except for
Sec. Sec.  1904.35 and 1904.36, which become effective on August 10,
2016. Collections of information: There are collections of information
contained in this final rule (see Section XI, Office of Management and
Budget Review Under the Paperwork Reduction Act of 1995).
Notwithstanding the general date of applicability that applies to all
other requirements contained in the final rule, affected parties do not
have to comply with the collections of information until the Department
of Labor publishes a separate document in the Federal Register
announcing that the Office of Management and Budget has approved them
under the Paperwork Reduction Act.

ADDRESSES: In accordance with 28 U.S.C. 2112(a)(2), OSHA designates Ann
Rosenthal, Associate Solicitor of Labor for Occupational Safety and
Health, Office of the Solicitor, Room S-4004, U.S. Department of Labor,
200 Constitution Avenue NW., Washington, DC 20210, to receive petitions
for review of the final rule.

FOR FURTHER INFORMATION CONTACT: For press inquiries: Frank Meilinger,
OSHA, Office of Communications, Room N-3647, U.S. Department of Labor,
200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-
1999; email<EMAIL_ADDRESS>    For general and technical information: Miriam Schoenbaum, OSHA,
Office of Statistical Analysis, Room N-3507, U.S. Department of Labor,
200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-
1841; email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Background

A. Table of Contents

    The following table of contents identifies the major sections of
the preamble to the final rule revising OSHA's Occupational Injury and
Illness Recording and Reporting Requirements regulation (Improving
tracking of workplace injuries and illnesses):

I. Background
    A. Table of Contents
    B. References and Exhibits
    C. Introduction
    D. Regulatory History
II. Legal Authority
III. Section 1904.41
    A. Background
    B. The Proposed Rule
    C. Comments on the Proposed Rule
    D. The Final Rule
IV. Section 1902.7--State Plan Requirements
V. Section 1904.35 and Section 1904.36
    A. Background
    B. The Proposed Rule
    C. The Final Rule
VI. Final Economic Analysis and Regulatory Flexibility Analysis
    A. Introduction
    B. Costs
    C. Benefits
    D. Economic Feasibility
    E. Regulatory Flexibility Certification
VII. Unfunded Mandates
VIII. Federalism
IX. State Plan States
X. Environmental Impact Assessment
XI. Office of Management and Budget Review Under the Paperwork
Reduction Act of 1995
XII. Consultation and Coordination With Indian Tribal Governments

B. References and Exhibits

    In this preamble, OSHA references documents in Docket No. OSHA-
2013-0023, the docket for this rulemaking. The docket is available at
http://www.regulations.gov, the Federal eRulemaking Portal.
    References to documents in this rulemaking docket are given as
``Ex.'' followed by the document number. The document number is the
last sequence of numbers in the Document ID Number on http://www.regulations.gov. For example, Ex. 1, the proposed rule, is Document
ID Number OSHA-2013-0023-0001.
    The exhibits in the docket, including public comments, supporting
materials, meeting transcripts, and other documents, are listed on
http://www.regulations.gov. All exhibits are listed in the docket index
on http://www.regulations.gov. However, some exhibits (e.g.,
copyrighted material) are not available to read or download from that
Web page. All materials in the docket are available for inspection and
copying at the OSHA Docket Office, Room N-2625, U.S. Department of
Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone
(202) 693-2350.

C. Introduction

    OSHA's regulation at 29 CFR part 1904 requires employers with more
than 10 employees in most industries to keep records of occupational
injuries and illnesses at their establishments. Employers covered by
these rules must record each recordable employee injury and illness on
an OSHA Form 300, which is the ``Log of Work-Related Injuries and
Illnesses,'' or equivalent. Employers must also prepare a supplementary
OSHA Form 301 ``Injury and Illness Incident Report'' or equivalent that
provides additional details about each case recorded on the OSHA Form
300. Finally, at the end of each year, employers are required to
prepare a summary report of all injuries and illnesses on the OSHA Form
300A, which is the ``Summary of Work-Related Injuries and Illnesses,''
and post the form in a visible location in the workplace.
    This final rule amends OSHA's recordkeeping regulations to add
requirements for the electronic submission of injury and illness
information employers are already required to keep under part 1904.
First,

the final rule requires establishments with 250 or more employees to
electronically submit information from their part 1904 recordkeeping
forms (Forms 300, 300A, and 301) to OSHA or OSHA's designee on an
annual basis. Second, the final rule requires establishments with 20 or
more employees, but fewer than 250 employees, in certain designated
industries, to electronically submit information from their part 1904
annual summary (Form 300A) to OSHA or OSHA's designee on an annual
basis. Third, the final rule requires, upon notification, employers to
electronically submit information from part 1904 recordkeeping forms to
OSHA or OSHA's designee.
    The electronic submission requirements in the final rule do not add
to or change any employer's obligation to complete and retain injury
and illness records under OSHA's regulations for recording and
reporting occupational injuries and illnesses. The final rule also does
not add to or change the recording criteria or definitions for these
records.
    OSHA intends to post the establishment-specific injury and illness
data it collects under this final rule on its public Web site at
www.osha.gov. The publication of specific data fields will be in part
restricted by applicable federal law, including the Freedom of
Information Act (FOIA), as well as specific provisions within part
1904. OSHA does not intend to post any information on the Web site that
could be used to identify individual employees.
    Additionally, OSHA's existing recordkeeping regulation requires
employers to inform employees about how to report occupational injuries
and illnesses (29 CFR 1904.35(a), (b)). This final rule amends OSHA's
recordkeeping regulations to require employers to inform employees of
their right to report work-related injuries and illnesses; clarifies
the existing implicit requirement that an employer's procedure for
reporting work-related injuries and illnesses must be reasonable and
not deter or discourage employees from reporting; and incorporates the
existing statutory prohibition on retaliating against employees for
reporting work-related injuries or illnesses.
    OSHA estimates that this final rule will have economic costs of $15
million per year, including $13.7 million per year to the private
sector, with costs of $7.2 million per year for electronic submission
for affected establishments with 250 or more employees and $4.6 million
for electronic submission for affected establishments with 20 to 249
employees in designated industries. With respect to the anti-
discrimination requirements of this final rule, OSHA estimates a first-
year cost of $8.0 million and annualized costs of $0.9 million per
year. When fully implemented, the first-year economic cost for all
provisions of the final rule is estimated at $28 million. The rule will
be phased in, which moves the annual cost for reporting case
characteristic data from OSHA Forms 300 and 301 by 33,000
establishments from 2017 to 2018. This phase-in removes about $6.9
million from the first year costs, but those costs would reappear in
years two through 10.
    The Agency believes that the annual benefits, while unquantified,
exceed the annual costs. These benefits include better compliance with
OSHA's statutory directive ``to assure so far as possible every working
man and woman in the Nation safe and healthful working conditions and
to preserve our human resources'' (29 U.S.C. 651(b)). They also include
increased prevention of workplace injuries and illnesses as a result of
expanded access to timely, establishment-specific injury/illness
information by OSHA, employers, employees, employee representatives,
potential employees, customers, potential customers, and researchers.
The benefits of the final rule also include promotion of complete and
accurate reporting of work-related injuries and illnesses.

D. Regulatory History

    OSHA's regulations on recording and reporting occupational injuries
and illnesses (29 CFR part 1904) were first issued in 1971 (36 FR
12612, July 2, 1971). This regulation requires the recording of work-
related injuries and illnesses that involve death, loss of
consciousness, days away from work, restriction of work, transfer to
another job, medical treatment other than first aid, or diagnosis of a
significant injury or illness by a physician or other licensed health
care professional (29 CFR 1904.7).
    On December 28, 1982, OSHA amended these regulations to partially
exempt establishments in certain lower-hazard industries from the
requirement to record occupational injuries and illnesses (47 FR
57699). OSHA also amended the recordkeeping regulations in 1994
(Reporting fatalities and multiple hospitalization incidents to OSHA,
29 CFR 1904.39) and 1997 (Annual OSHA injury and illness survey of ten
or more employers, 29 CFR 1904.41).
    In 2001, OSHA issued a final rule amending its requirements for the
recording and reporting of occupational injuries and illnesses (29 CFR
parts 1904 and 1902), along with the forms employers use to record
those injuries and illnesses (66 FR 5916 (Jan. 19, 2001)). The final
rule also updated the list of industries that are partially exempt from
recording occupational injuries and illnesses. In 2014, OSHA again
amended the part 1904 regulations to require employers to report work-
related fatalities, in-patient hospitalizations, amputations, and
losses of an eye to OSHA and to allow electronic reporting (79 FR 56130
(Sept. 18, 2014)). The final rule also revised the list of industries
that are partially exempt from recording occupational injuries and
illnesses.
    On November 8, 2013, OSHA issued a proposed rule to amend its
recordkeeping regulations to add requirements for electronic submission
of injury and illness information that employers are already required
to keep (78 FR 67254). In the preamble to the proposed rule, OSHA
explained that, consistent with applicable Federal law, such as FOIA
and specific provisions of part 1904, the Agency intended to post the
recordkeeping data it collects on its public Web site. A public meeting
on the proposed rule was held on January 9-10, 2014. A concern raised
by many meeting participants was that the proposed electronic
submission requirement might create a motivation for employers to
under-report injuries and illnesses. Some participants also commented
that some employers already discourage employees from reporting
injuries or illnesses by disciplining or taking other adverse action
against employees who file injury and illness reports. As a result, on
August 14, 2014, OSHA issued a supplemental notice to the proposed rule
seeking comments on whether to amend the part 1904 regulations to
prohibit employers from taking adverse action against employees for
reporting occupational injuries and illnesses. OSHA received 311
comments on the electronic submission section of the proposed rule and
142 comments on the supplemental notice to the proposed rule. The
comments for the proposed rule and the supplemental notice to the
proposed rule are addressed below.

II. Legal Authority

    OSHA is issuing this final rule pursuant to authority expressly
granted by sections 8 and 24 of the Occupational Safety and Health Act
(the ``OSH Act'' or ``Act'') (29 U.S.C. 657, 673). Section 8(c)(1)
requires each employer to ``make, keep and preserve, and make available
to the Secretary [of Labor] or the

Secretary of Health and Human Services, such records regarding his
activities relating to this Act as the Secretary . . . may prescribe by
regulation as necessary or appropriate for the enforcement of this Act
or for developing information regarding the causes and prevention of
occupational accidents and illnesses'' (29 U.S.C. 657(c)(1)). Section
8(c)(2) directs the Secretary to prescribe regulations ``requiring
employers to maintain accurate records of, and to make periodic reports
on, work-related deaths, injuries and illnesses other than minor
injuries requiring only first aid treatment and which do not involve
medical treatment, loss of consciousness, restriction of work or
motion, or transfer to another job'' (29 U.S.C. 657(c)(2)). Finally,
section 8(g)(2) of the OSH Act broadly empowers the Secretary to
``prescribe such rules and regulations as he may deem necessary to
carry out [his] responsibilities under this Act'' (29 U.S.C.
657(g)(2)).
    Section 24 of the OSH Act (29 U.S.C. 673) contains a similar grant
of authority. This section requires the Secretary to ``develop and
maintain an effective program of collection, compilation, and analysis
of occupational safety and health statistics'' and ``compile accurate
statistics on work injuries and illnesses which shall include all
disabling, serious, or significant injuries and illnesses . . .'' (29
U.S.C. 673(a)). Section 24 also requires employers to ``file such
reports with the Secretary as he shall prescribe by regulation'' (29
U.S.C. 673(e)). These reports are to be based on ``the records made and
kept pursuant to section 8(c) of this Act'' (29 U.S.C. 673(e)).
    Further support for the Secretary's authority to require employers
to keep and submit records of work-related illnesses and injuries can
be found in the Congressional Findings and Purpose at the beginning of
the OSH Act (29 U.S.C. 651). In this section, Congress declares the
overarching purpose of the Act to be ``to assure so far as possible
every working man and woman in the Nation safe and healthful working
conditions'' (29 U.S.C. 651(b)). One of the ways in which the Act is
meant to achieve this goal is ``by providing for appropriate reporting
procedures . . . [that] will help achieve the objectives of this Act
and accurately describe the nature of the occupational safety and
health problem'' (29 U.S.C. 651(b)(12)).
    The OSH Act authorizes the Secretary of Labor to issue two types of
occupational safety and health rules: Standards and regulations.
Standards, which are authorized by section 6 of the Act, specify
remedial measures to be taken to prevent and control employee exposure
to identified occupational hazards, while regulations are the means to
effectuate other statutory purposes, including the collection and
dissemination of records of occupational injuries and illnesses. For
example, the OSHA requirements at 29 CFR 1910.95 are a ``standard''
because they include remedial measures to address the specific and
already identified hazard of employee exposure to occupational noise.
In contrast, a ``regulation'' is a purely administrative effort
designed to uncover violations of the Act and discover unknown dangers.
    Recordkeeping requirements promulgated under the Act are
characterized as regulations (see 29 U.S.C. 657 (using the term
``regulations'' to describe recordkeeping requirements)). Also, courts
of appeal have held that OSHA recordkeeping rules are regulations and
not standards. See, Workplace Health & Safety Council v. Reich, 56 F.3d
1465, 1468 (D.C. Cir. 1995) (citing Louisiana Chemical Association v.
Bingham, 657 F.2d 777, 781-82 (5th Cir. 1981); United Steelworkers of
America v. Auchter, 763 F.2d 728, 735 (3d Cir. 1985)). Standards aim to
correct particular identified workplace hazards, while regulations
further the general enforcement and detection purposes of the OSH Act.
Id.
    This final rule does not infringe on employers' Fourth Amendment
rights. The Fourth Amendment protects against searches and seizures of
private property by the government, but only when a person has a
``legitimate expectation of privacy'' in the object of the search or
seizure (Rakas v. Illinois, 439 U.S. 128, 143-47 (1978)). There is
little or no expectation of privacy in records that are required by the
government to be kept and made available (Free Speech Coalition v.
Holder, 729 F.Supp.2d 691, 747, 750-51 (E.D. Pa. 2010) (citing cases);
United States v. Miller, 425 U.S. 435, 442-43 (1976); cf. Shapiro v.
United States, 335 U.S. 1, 33 (1948) (no Fifth Amendment interest in
required records)). Accordingly, the Fourth Circuit held, in McLaughlin
v. A.B. Chance, that an employer has little expectation of privacy in
the records of occupational injuries and illnesses kept pursuant to
OSHA regulations, and must disclose them to the Agency on request (842
F.2d 724, 727-28 (4th Cir. 1988)).
    Even if there were an expectation of privacy, the Fourth Amendment
prohibits only unreasonable intrusions by the government (Kentucky v.
King, 131 S. Ct. 1849, 1856 (2011)). The information submission
requirement in this final rule is reasonable. The requirement serves a
substantial government interest in the health and safety of workers,
has a strong statutory basis, and rests on reasonable, objective
criteria for determining which employers must report information to
OSHA (see New York v. Burger, 482 U.S. 691, 702-703 (1987)).
    OSHA notes that two courts have held, contrary to A.B. Chance, that
the Fourth Amendment requires prior judicial review of the
reasonableness of an OSHA field inspector's demand for access to injury
and illness logs before the Agency could issue a citation for denial of
access (McLaughlin v. Kings Island, 849 F.2d 990 (6th Cir. 1988); Brock
v. Emerson Electric Co., 834 F.2d 994 (11th Cir. 1987)). Those
decisions are inapposite here. The courts based their rulings on a
concern that field enforcement staff had unbridled discretion to choose
the employers they would inspect and the circumstances in which they
would demand access to employer records. The Emerson Electric court
specifically noted that in situations where ``businesses or individuals
are required to report particular information to the government on a
regular basis[,] a uniform statutory or regulatory reporting
requirement [would] satisf[y] the Fourth Amendment concern regarding
the potential for arbitrary invasions of privacy'' (834 F.2d at 997,
fn.2). This final rule, like that hypothetical, establishes general
reporting requirements based on objective criteria and does not vest
field staff with any discretion. The employers that are required to
report data, the information they must report, and the time when they
must report it are clearly identified in the text of the rule and in
supplemental documents that will be published pursuant to the Paperwork
Reduction Act. The final rule is similar in these respects to the
existing regulation in Sec.  1904.41 that authorized reporting pursuant
to the OSHA Data Initiative and is reasonable under the Fourth
Amendment (see 62 FR 6434, 6437-38 (Feb. 11, 1997) for a discussion of
Fourth Amendment issues in the final rule on Reporting Occupational
Injury and Illness Data to OSHA). The existing regulation in Sec.
1904.41 required employers who received OSHA's annual survey form to
report the following information to OSHA for the year described on the
form: Number of workers the employer employed, the number of hours the
employees worked, and the requested information from the records that
the employers keep under part 1904.

    The Act's various statutory grants of authority that address
recordkeeping provide authority for OSHA to prohibit employers from
discouraging employee reports of injuries or illnesses. If employers
may not discriminate against workers for reporting injuries or
illnesses, then discrimination will not occur to deter workers from
reporting their injuries and illnesses, and their employers' records
and reports may be more ``accurate'', as required by sections 8 and 24
of the Act. Evidence in the administrative record establishes that some
employers engage in practices that discourage injury and illness
reporting, and many commenters provided support for OSHA's concern that
the electronic submission requirements of this final rule and
associated posting of data could provide additional motivation for
employers to discourage accurate reporting of injuries and illnesses.
Therefore, prohibiting employers from engaging in practices that
discourage their employees from reporting injuries or illnesses,
including discharging or in any manner discriminating against such
employees, is ``necessary to carry out'' the recordkeeping requirements
of the Act (see 29 U.S.C. 657(g)(2)).
    As noted by many commenters, section 11(c) of the Act already
prohibits any person from discharging or otherwise discriminating
against any employee because that employee has exercised any right
under the Act (29 U.S.C. 660(c)(1)). Under this provision, an employee
who believes he or she has been discriminated against may file a
complaint with OSHA, and if, after investigation, the Secretary has
reasonable cause to believe that section 11(c) has been violated, then
the Secretary may file suit against the employer in U.S. District Court
seeking ``all appropriate relief,'' including reinstatement and back
pay (29 U.S.C. 660(c)(2)). Discriminating against an employee who
reports a fatality, injury, or illness is a violation of section 11(c)
(see 29 CFR 1904.36), so the conduct prohibited by Sec.
1904.35(b)(1)(iv) of the final rule is already proscribed by section
11(c).
    The advantage of this new provision (Sec.  1904.35(b)(1)(iv)) is
that it provides OSHA with additional enforcement tools to promote the
accuracy and integrity of the injury and illness records employers are
required to keep under part 1904. For example, under section 11(c),
OSHA may not act against an employer unless an employee files a
complaint. Under Sec.  1904.35(b)(1)(iv) of the final rule, OSHA will
be able to cite an employer for taking adverse action against an
employee for reporting an injury or illness, even if the employee did
not file a complaint. Moreover, citations can result in orders
requiring employers to abate violations, which may be a more efficient
tool to correct employer policies and practices than the remedies
authorized under section 11(c), which are often employee-specific.
    The fact that section 11(c) already provides a remedy for
retaliation does not preclude the Secretary from implementing
alternative remedies under the OSH Act. Where retaliation threatens to
undermine a program that Congress required the Secretary to adopt, the
Secretary may proscribe that retaliation through a regulatory provision
unrelated to section 11(c). For example, under the medical removal
protection (MRP) provision of the lead standard, employers are required
to pay the salaries of workers who cannot work due to high blood lead
levels (29 CFR 1910.1025(k); see United Steelworkers, AFL-CIO v.
Marshall, 647 F.2d 1189, 1238 (D.C. Cir. 1980)). And it is well
established that the Occupational Safety and Health Review Commission
may order employers to pay back pay as abatement for violations of the
MRP requirements (see United Steelworkers, AFL-CIO v. St. Joe
Resources, 916 F.2d 294, 299 (5th Cir. 1990); Dole v. East Penn
Manufacturing Co., 894 F.2d 640, 646 (3d Cir. 1990)). If the reason
that an employer decided not to pay MRP benefits was to retaliate for
an employee's exercise of a right under the Act, OSHA can still cite
the employer and seek the benefits as abatement, because payment of the
benefits is important to vindicate the health interests underlying MRP.
The mere fact that section 11(c) provides one remedial process does not
require that OSHA treat the matter as an 11(c) case (see St. Joe
Resources, 916 F.2d at 298 (stating that that 11(c) was not an
exclusive remedy, because otherwise the remedial purposes of MRP would
be undermined)). This would also be the case under the final rule. If
employers reduce the accuracy of their injury and illness records by
retaliating against employees who report an injury or illness, then
OSHA's authority to collect accurate injury and illness records allows
OSHA to proscribe such conduct even if the conduct would also be
proscribed by section 11(c).

III. Section 1904.41

A. Background

    OSHA regulations at 29 CFR part 1904 currently require employers
with more than 10 employees in most industries to keep records of work-
related injuries and illnesses at their establishments. Employers
covered by these rules must prepare an injury and illness report for
each case (Form 301), compile a log of these cases (Form 300), and
complete and post in the workplace an annual summary of work-related
injuries and illnesses (Form 300A).
    OSHA currently obtains the injury and illness data entered on the
three recordkeeping forms only through onsite inspections, which
collect only the data from the individual establishment being
inspected, or by inclusion of an establishment in a survey pursuant to
the previous 29 CFR 1904.41, Annual OSHA injury and illness survey of
ten or more employers. From 1997 to 2012, OSHA used the authority in
the previous Sec.  1904.41 to collect establishment-specific injury and
illness data through the OSHA Data Initiative (ODI). Through the ODI,
OSHA requested injury and illness data from approximately 80,000 larger
establishments (20 or more employees) in selected industries each year.
    The ODI collected only the aggregate data from the 300A annual
summary form, and the data were not required to be submitted
electronically. OSHA used the information obtained through the ODI to
identify and target the most hazardous worksites.
    The Department of Labor also collects occupational injury and
illness data through the annual Survey of Occupational Injuries and
Illnesses (SOII), which is conducted by the Bureau of Labor Statistics
(BLS) pursuant to 29 CFR 1904.42, Requests from the Bureau of Labor
Statistics for data. The SOII provides annual rates and numbers of
work-related injuries and illnesses, but BLS is prohibited from
releasing establishment-specific data to OSHA or the general public.
The final rule does not affect the SOII.
    OSHA's recordkeeping regulation currently covers more than 600,000
employers with approximately 1,300,000 establishments. Although the OSH
Act gives OSHA the authority to require all employers covered by the
Act to keep records of employee injuries and illnesses, two classes of
employers are partially-exempted from the recordkeeping requirements in
part 1904. First, as provided in Sec.  1904.1, employers with 10 or
fewer employees at all times during the previous calendar year are
partially exempt from keeping OSHA injury and illness records. Second,
as provided in Sec.  1904.2, establishments in certain lower-hazard
industries are also partially exempt. Partially-exempt employers are
not required to maintain OSHA injury and illness records unless
required to do so

by OSHA under the previous Sec.  1904.41 or by BLS under Sec.  1904.42.
    The records required by part 1904 provide important information to
OSHA, as well as to consultants in OSHA's On-Site Consultation Program.
However, OSHA enforcement programs currently do not have access to the
information in the records required by part 1904 unless the
establishment receives an onsite inspection from OSHA or is part of an
OSHA annual survey under the previous Sec.  1904.41. At the beginning
of an inspection, an OSHA representative reviews the establishment's
injury and illness records to help focus the inspection on the safety
and health hazards suggested by the records. (OSHA consultants conduct
a similar review when an establishment has requested a consultation.)
OSHA has used establishment-specific injury and illness information
obtained through the ODI to help target the most hazardous worksites.
1. OSHA Data Initiative (ODI)
    In the past, OSHA has used the authority in previous Sec.  1904.41
to conduct injury and illness surveys of employers through the ODI. The
purpose of the ODI was to collect data on injuries and acute illnesses
attributable to work-related activities in private-sector industries
from approximately 80,000 establishments in selected high-hazard
industries. The Agency used these data to calculate establishment-
specific injury/illness rates, and in combination with other data
sources, to target enforcement and compliance assistance activities.
The ODI consisted of larger establishments (20 or more employees) in
the manufacturing industry and in an additional 70 non-manufacturing
industries. These are industries with historically high rates of
occupational injury and illness. Typically, there were over 180,000
unique establishments subject to participation in the ODI. The ODI was
designed so that each eligible establishment received the ODI survey at
least once every three-year cycle. In a given year, OSHA would send the
ODI survey to approximately 80,000 establishments (1.1 percent of all
establishments nationwide), which typically accounted for approximately
700,000 recordable injuries and illnesses (19 percent of injuries and
illnesses recorded by employers nationwide).
    The ODI survey collected the following data from the Form 300A
(annual summary) from each establishment:

     Number of cases (total number of deaths, total number of
cases with days away from work, total number of cases with job transfer
or restrictions, and total number of other recordable cases);
     Number of days (total number of days away from work and
total number of days of job transfer or restriction);
     Injury and illness types (total numbers of injuries, skin
disorders, respiratory conditions, poisonings, hearing loss, and all
other illnesses);
     Establishment information (name, street address, industry
description, SIC or NAICS code, and employment information (annual
average number of employees, and total hours worked by all employees));
     Contact information (Company contact name, title,
telephone number, and date).

Employers had the option of submitting their data on paper forms or
electronically. OSHA then calculated establishment-specific injury and
illness rates and used the rates in its Site-Specific Targeting (SST)
enforcement program and High Rate Letter outreach program. The Agency
also made the establishment-specific data available to the public
through its Web site at http://www.osha.gov/pls/odi/establishment_search.html and through President Obama's Open Government
Initiative at Data.gov (http://www.data.gov/raw/1461).
2. BLS Survey of Occupational Injuries and Illnesses (SOII)
    The primary purpose of the SOII is to provide annual information on
the rates and numbers of work-related non-fatal injuries and illnesses
in the United States, and on how these statistics vary by incident,
industry, geography, occupation, and other characteristics. The
Confidential Information Protection and Statistical Efficiency Act of
2002 (Pub. L. 107-347, Dec. 17, 2002) prohibits BLS from releasing
establishment-specific data to the general public or to OSHA.
    Each year, BLS collects data from the three recordkeeping forms
from a scientifically-selected probability sample of about 230,000
establishments, covering nearly all private-sector industries, as well
as state and local government. Employers may submit their data on paper
forms or electronically. As stated above, the final rule will not
affect the authority for the SOII.
3. OSHA Access to Establishment-Specific Injury and Illness Information
    OSHA currently has only a limited ability to obtain part 1904
records, or the establishment-specific injury and illness information
included on these forms. Right now, OSHA can access the information in
three limited ways.
    First, OSHA is able to obtain establishment-specific injury and
illness information from employers through workplace inspections. OSHA
inspectors examine all records kept under part 1904, including detailed
information about specified injuries and illnesses. However, each year,
OSHA inspects only a small percentage of all establishments subject to
OSHA authority. For example, in Fiscal Year 2014, OSHA and its state
partners inspected approximately 1 percent of establishments under OSHA
authority (approximately 83,000 inspections, out of approximately 8
million total establishments). As a result, the Agency is not able to
compile a comprehensive and timely database of establishment-specific
injury/illness information from inspection activities.
    Second, OSHA has been able to obtain establishment-specific injury
and illness information from employers through the ODI. However,
because the ODI collected only summary data from the Form 300A, it did
not enable OSHA to identify specific hazards or problems in
establishments included in the ODI. In addition, the data were not
timely. The injury/illness information in each year's Site-Specific
Targeting Program came from the previous year's ODI, which collected
injury/illness data from the year before that. As a result, OSHA's
site-specific targeting typically was based on injury/illness data that
were two or three years old. Additionally, the group of 80,000
establishments in a given year's ODI was a very small fraction of
establishments subject to OSHA oversight.
    Finally, OSHA is able to obtain limited establishment-specific
injury and illness information from employers through 29 CFR 1904.39,
Reporting fatalities, hospitalizations, amputations, and losses of an
eye as a result of work-related incidents to OSHA. OSHA's current
regulation requires employers to report work-related fatalities to OSHA
within 8 hours of the event. The regulation also requires employers to
report work-related in-patient hospitalizations, amputations, and
losses of an eye to OSHA within 24 hours of the event. These most
severe workplace injuries and illnesses are fortunately rare. OSHA
receives fewer than 2,000 establishment-specific reports of fatalities
each year. From January 1, 2015, to April 10, 2015, OSHA had received
roughly 2,270 reports of single in-patient hospitalizations, 750
reports of amputations, and 4 reports of a loss of

an eye. These fatality/severe injury reports do not include the
establishment's injury and illness records unless OSHA also collects
these records during a subsequent inspection.
    Given the above, OSHA currently obtains limited establishment-
specific injury and illness information from an establishment in a
particular year only if the establishment was inspected or was part of
the ODI.
    As noted above, OSHA does obtain aggregate information from the
injury and illness records collected through the BLS SOII. SOII data
have a time lag of almost a year, with data for a given year not
available until November of the following year.
d. Benefits of Electronic Data Collection
    The main purpose of this section of the final rule is to prevent
worker injuries and illnesses through the collection and use of timely,
establishment-specific injury and illness data. With the information
obtained through this final rule, employers, employees, employee
representatives, the government, and researchers may be better able to
identify and mitigate workplace hazards and thereby prevent worker
injuries and illnesses.
    This final rule will support OSHA's statutory directive to ``assure
so far as possible every working man and woman in the Nation safe and
healthful working conditions and to preserve our human resources'' (29
U.S.C. 651(b)) ``by providing for appropriate reporting procedures with
respect to occupational safety and health which procedures will help
achieve the objectives of this Act and accurately describe the nature
of the occupational safety and health problem'' (29 U.S.C. 651(b)(12)).
    The importance of this rule in preventing worker injuries and
illnesses can be understood in the context of workplace safety and
health in the United States today. The number of workers injured or
made ill on the job remains unacceptably high. According to the SOII,
each year employees experience more than 3 million serious (requiring
more than first aid) injuries and illnesses at work, and this number is
widely recognized to be an undercount of the actual number of
occupational injuries and illnesses that occur annually. As described
above, OSHA currently has very limited information about the injury/
illness risk facing workers in specific establishments, and this final
rule increases the agency's ability to target those workplaces where
workers are at greatest risk. However, even with improved targeting,
OSHA Compliance Safety and Health Officers can inspect only a small
proportion of the nation's workplaces each year, and it would take many
decades to inspect each covered workplace in the nation even once. As a
result, to reduce worker injuries and illnesses, it is of great
importance for OSHA to increase its impact on the many thousands of
establishments where workers are being injured or made ill but which
OSHA does not have the resources to inspect. The final rule may
accomplish this, through application of advances made in the field of
behavioral economics in understanding and influencing decision-making
in order to prevent worker injuries and illnesses. Specifically, the
final rule recognizes that public disclosure of data can be a powerful
tool in changing behavior. In this case, the objective of disclosure of
data on injuries and illnesses is to encourage employers to abate
hazards and thereby prevent injuries and illnesses, so that the
employer's establishment can be seen by members of the public,
including investors and job seekers, as one in which the risk to
workers' safety and health is low.
    OSHA believes that disclosure of and public access to these data
will (using the word commonly used in the behavioral sciences
literature) ``nudge'' some employers to abate hazards and thereby
prevent workplace injuries and illnesses, without OSHA having to
conduct onsite inspections (see the book Nudge: Improving Decisions
About Health, Wealth, and Happiness, by Richard H. Thaler and Cass R.
Sunstein (Penguin Books, 2009)).
    The application of behavioral science insights to the prevention
injuries and illnesses is consistent with Executive Order 13707 ``Using
Behavioral Insights to Better Serve the American People,'' which
states, ``(a) Executive departments and agencies (agencies) are
encouraged to (i) identify policies, programs, and operations where
applying behavioral science insights may yield substantial improvements
in public welfare, program outcomes, and program cost effectiveness.''
    This approach is also consistent with other Administration
policies, including:
     Executive Order 13563, which states, ``Where relevant,
feasible, and consistent with regulatory objectives, and to the extent
permitted by law, each agency shall identify and consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public. These approaches include warnings, appropriate
default rules, and disclosure requirements as well as provision of
information to the public in a form that is clear and intelligible.''
     The September 8, 2011 memorandum from Cass R. Sunstein,
Administrator of the Office of Information and Regulatory Affairs,
entitled ``Informing Consumers through Smart Disclosure'', which
provides guidance to agencies on how to promote smart disclosure,
defined as ``the timely release of complex information and data in
standardized, machine readable formats in ways that enable consumers to
make informed decisions.''
    In addition, the rule is consistent with President Obama's Open
Government Initiative. In his Memorandum on Transparency and Open
Government, issued on January 21, 2009, President Obama instructed the
Director of the Office of Management and Budget (OMB) to issue an Open
Government Directive. On December 8, 2009, OMB issued a Memorandum for
the Heads of Executive Departments and Agencies, Open Government
Directive, which requires federal agencies to take steps to ``expand
access to information by making it available online in open formats.''
The Directive also states that the ``presumption shall be in favor of
openness (to the extent permitted by law and subject to valid privacy,
confidentiality, security, or other restrictions).'' In addition, the
Directive states that ``agencies should proactively use modern
technology to disseminate useful information, rather than waiting for
specific requests under FOIA.''
    A requirement for the electronic submission of recordkeeping data
will help OSHA encourage employers to prevent worker injuries and
illnesses by greatly expanding OSHA's access to the establishment-
specific information employers are already required to record under
part 1904. As described in the previous section, OSHA currently does
not have systematic access to this information. OSHA has limited access
to establishment-specific injury and illness information in a
particular year. Typically, OSHA only had access if the establishment
was inspected or was part of an OSHA injury and illness survey. In
addition, the injury and illness data collected through the ODI were
summary data only and not timely.
    The final rule's provisions requiring regular electronic submission
of injury and illness data will allow OSHA to obtain a much larger data
set of more timely, establishment-specific information about injuries
and illnesses in the workplace. This information will help OSHA use its
enforcement and compliance assistance resources more effectively by
enabling OSHA to identify

the workplaces where workers are at greatest risk.
    For example, OSHA will be better able to identify small and medium-
sized employers who report high overall injury/illness rates for
referral to OSHA's free on-site consultation program. OSHA could also
send hazard-specific educational materials to employers who report high
rates of injuries or illnesses related to those hazards, or letters
notifying employers that their reported injury/illness rates were
higher than the industry-wide rates. A recent evaluation by Abt
Associates of OSHA's practice of sending referral letters to high-
hazard employers identified by OSHA through the ODI confirmed the value
of these letters in increasing the number of workplaces requesting a
consultation visit (Ex. 1833). OSHA has also found that such high-rate
notification letters were associated with a 5 percent decrease in lost
workday injuries and illnesses in the following three years. In
addition, OSHA will be able to use the information to identify emerging
hazards, support an Agency response, and reach out to employers whose
workplaces might include those hazards.
    The final rule will also allow OSHA to more effectively target its
enforcement resources to establishments with high rates or numbers of
workplaces injuries and illnesses, and better evaluate its
interventions. Prior to 1997, OSHA randomly selected establishments in
hazardous industries for inspection. This targeting system was based on
aggregated industry data. Relatively safe workplaces in high-rate
industries were selected for inspection as well as workplaces that were
experiencing high rates of injuries and illnesses. In 1997, OSHA
changed its method of targeting general-industry establishments for
programmed inspections. The Agency began using establishment-specific
injury and illness data collected through the OSHA Data Initiative
(ODI) to identify and target for inspection individual establishments
that were experiencing high rates of injury and illness. OSHA's Site-
Specific Targeting (SST) program has been OSHA's main programmed
inspection plan for non-construction workplaces from 1997 through 2014.
OSHA intends to use the data collected under this final rule in the
same manner for targeting inspections. This rule greatly expands the
number and scope of establishments that will provide the Agency with
their injury and illness data. As a result, the Agency will be able to
focus its inspection resources on a wider population of establishments.
The data collection will also enable the Agency to focus its Emphasis
Program inspections on establishments with high injury and illness
rates, as it did for the National Emphasis Program (NEP) addressing
hazards in Nursing Homes (see CPL 03-00-016, April 5, 2012).
    The new collection will provide establishment-specific injury and
illness data for analyses that are not currently possible with the data
sets from inspections, the ODI, and reporting of fatalities and severe
injuries. For example, OSHA could analyze the data collected under this
system to answer the following questions:
    1. Within a given industry, what are the characteristics of
establishments with the highest injury or illness rates (for example,
size or geographic location)?
    2. Within a given industry, what are the relationships between an
establishment's injury and illness data and data from other agencies or
departments, such as the Wage and Hour Division, the Environmental
Protection Agency, or the Equal Employment Opportunities Commission?
    3. Within a given industry, what are the characteristics of
establishments with the lowest injury or illness rates?
    4. What are the changes in types and rates of injuries and
illnesses in a particular industry over time?
    Furthermore, without access to establishment-specific injury and
illness data, OSHA has had great difficulty evaluating the
effectiveness of its enforcement and compliance assistance activities.
Having these data will enable OSHA to conduct rigorous evaluations of
different types of programs, initiatives, and interventions in
different industries and geographic areas, enabling the agency to
become more effective and efficient. For example, OSHA believes that
some employers who have not been inspected, but who learn about the
results (include monetary penalties) of certain OSHA's inspections in
the same industry or geographic area, may voluntarily abate hazards out
of concern that they will be the target of a future inspection. Access
to these data will allow OSHA to compare injuries and illnesses at non-
inspected establishments in the same industry or geographic areas as
the inspected ones.
    Publication of worker injury and illness data will encourage
employers to prevent injuries and illnesses among their employees
through several mechanisms:
    First, the online posting of establishment-specific injury and
illness information will encourage employers to improve workplace
safety and health to support their reputations as good places to work
or do business with. Many corporations now voluntarily report their
worker injury and illness rates in annual ``Sustainability Reports'',
in order to show investors, stakeholders, and the public that they are
committed to positive social values, including workplace safety and
health. Public access to these data will help address a well-known
information problem present in all voluntary reporting initiatives:
Voluntary disclosure tends to lead those with the worst records to
underreport outcomes. By requiring complete, accurate reporting,
interested parties will be able to gauge the full range of injury and
illness outcomes.
    Second, these data will be useful to employers who want to use
benchmarking to improve their own safety and health performance. Under
OSHA's current recordkeeping regulation, employers have access only to
their own data, aggregate injury/illness data in the SOII, historic
summary data from establishments in the ODI, and other severe injury/
illness event reports. Using data collected under this final rule,
employers can compare injury and illness rates at their establishments
to those at comparable establishments, and set workplace safety/health
goals benchmarked to the establishments they consider most comparable.
    Third, online availability of establishment-specific injury and
illness information will allow employees to compare their own
workplaces to the safest workplaces in their industries. Further, while
the current access provisions of the part 1904 regulation provide
employees the right to access the information on the part 1904
recordkeeping forms, evidence shows that few employees exercise this
right. During 2,836 inspections conducted by OSHA between 1996 and 2011
to assess the injury and illness recordkeeping practices of employers,
2,599 of the recordkeepers interviewed (92 percent) indicated that
employees never requested access to the records required under part
1904. OSHA believes that employees in establishments with 250 or more
employees will access and make use of the data more frequently when the
case-specific information is available without having to request the
information from their employers. Uninhibited access to the information
will allow employees in these establishments to better identify hazards
within their own workplace and to take actions to have the hazards
abated. In addition, if employees preferentially choose employment at
the safest

workplaces in their industries, then employers may take steps to
improve workplace safety and health (preventing injuries and illnesses
from occurring) in order to attract and retain employees.
    Fourth, access to these data will improve the workings of the labor
market by providing more complete information to job seekers, and, as a
result, encourage employers to abate hazards in order to attract more
desirable employees. Potential employees currently have access only to
the limited injury/illness information currently available to the
public, as discussed above. Injury and illness data for the vast
majority of establishments are not publicly available. Using data newly
accessible under this final rule, potential employees could examine the
injury and illness records of establishments where they are interested
in working, to help them make a more informed decision about a future
place of employment. This would also encourage employers with more
hazardous workplaces in a given industry to make improvements in
workplace safety and health to prevent injuries and illnesses from
occurring, because potential employees, especially the ones whose
skills are most in demand, might be reluctant to work at more hazardous
establishments. In addition, this would help address a problem of
information asymmetry in the labor market, where the businesses with
the greatest problems have the lowest incentive to self-disclose.
    Fifth, access to data will permit investors to identify investment
opportunities in firms with low injury and illness rates. If investors
believe that firms that have low rates outperform firms with higher
rates, presumably because the low-rate firms are better managed, and
they preferentially invest in firms with low rates, then employers may
take steps to improve workplace safety and health and prevent injuries
and illnesses from occurring in order to attract investment.
    Sixth, using data collected under this final rule, members of the
public will be able to make more informed decisions about current and
potential places with which to conduct business. For example, potential
customers might choose to patronize only the businesses in a given
industry with the lowest injury/illness rates. This is not possible at
present because, as noted above, the general public has access only to
very limited injury and illness data. Such decisions by customers would
also encourage establishments with higher injury/illness rates in a
given industry to improve workplace safety in order to become more
attractive to potential customers.
    Finally, in large construction contracts, particularly those
involving work contracted for by state and local governments,
preference is often given to subcontractors with lower injury and
illness rates. In some cases, employers with rates above a certain
level are not eligible for the contract work. Public disclosure of
employers' injury and illness rates will be to enable corporate and
individual customers to consider these rates in the selection of
vendors and contractors. These data will also be useful to people who
believe that low injury rates are correlated with high production
quality, and who therefore prefer to purchase products made by
manufacturers with low injury rates (Paul S. Adler, 1997) (Ex. 1832).
    Disclosure of and access to injury and illness data have the
potential to improve research on the distribution and determinants of
workplace injuries and illnesses, and therefore to prevent workplace
injuries and illnesses from occurring. Like the general public,
researchers currently have access only to the limited injury/illness
data described above. Using data collected under this final rule,
researchers might identify previously unrecognized patterns of injuries
and illnesses across establishments where workers are exposed to
similar hazards. Such research would be especially useful in
identifying hazards that result in a small number of injuries or
illnesses in each establishment but a large number overall, due to a
wide distribution of those hazards in a particular area, industry, or
establishment type. Data made available under this final rule may also
allow researchers to identify patterns of injuries or illnesses that
are masked by the aggregation of injury/illness data in the SOII.
    The availability of establishment-specific injury and illness data
will also be of great use to county, state and territorial Departments
of Health and other public institutions charged with injury and illness
surveillance. In particular, aggregation of establishment-specific
injury and illness reports and rates from similar establishments will
facilitate identification of newly-emerging hazards that would not
easily be identified without linkage to specific industries or
occupations. There are currently no comparable data sets available, and
these public health surveillance programs must primarily rely on
reporting of cases seen by medical practitioners, any one of whom would
rarely see enough cases to identify an occupational etiology.
    Workplace safety and health professionals might use data published
under this final rule to identify establishments whose injury/illness
records suggest that the establishments would benefit from their
services. In general, online access to this large database of injury
and illness information will support the development of innovative
ideas for improving workplace safety and health, and will allow
everyone with a stake in workplace safety and health to participate in
improving occupational safety and health.
    Furthermore, because the data will be publicly available,
industries, trade associations, unions, and other groups representing
employers and workers will be able to evaluate the effectiveness of
privately-initiated injury and illness prevention initiatives that
affect groups of establishments. In addition, linking these data with
data residing in other administrative data sets will enable researchers
to conduct rigorous studies that will increase our understanding of
injury causation, prevention, and consequences. For example, by
combining these data with data collected in the Annual Survey of
Manufactures (conducted by the United States Census Bureau), it will be
possible to examine the impact of a range of management practices on
injury and illness rates, as well as the impact of injury and illness
rates on the financial status of employers.
    Finally, public access to these data will enable developers of
software and smartphone applications to develop tools that facilitate
use of these data by employers, workers, researchers, consumers and
others. Examples of this in other areas is the use of OSHA and Wage and
Hour Division violation information in the ``Eat/Shop/Sleep''
smartphone application and, in public transit, the wide-scale private
development of applications for real-time information on bus and subway
arrivals using public information.
    This final rule will also improve the accuracy of the recorded
data. Section 1904.32 already requires company executives subject to
part 1904 requirements to certify that they have examined the annual
summary (Form 300A) and that they reasonably believe, based on their
knowledge of the process by which the information was recorded, that
the annual summary is correct and complete. OSHA recognizes that most
employers are diligent in complying with this requirement. However, a
minority of employers is less diligent; in recent years, one-third or
more of violations of Sec.  1904.32, and up to one-tenth of all
recordkeeping (part 1904)

violations, have involved this certification requirement. It is OSHA's
belief that, if this minority of employers knows that their data must
be submitted to the Agency and may also be examined by members of the
public, then they will pay more attention to the requirements of part
1904, which could lead both to improvements in the quality and accuracy
of the information and to better compliance with Sec.  1904.32.
    Finally, the National Advisory Committee on Occupational Safety and
Health (NACOSH), composed of representatives of employers, workers, and
the public, has expressed its support of the efforts of OSHA in
consultation with NIOSH to modernize the system for collection of
injury and illness data to assure that it is timely, complete, and
accurate, as well as both accessible and useful to employers,
employees, responsible government agencies, and members of the public.
e. Publication of Electronic Data
    As discussed above, OSHA intends to make the data it collects
public. As discussed below, the publication of specific data elements
will in part be restricted by applicable federal law, including
provisions under the Freedom of Information Act (FOIA), as well as
specific provisions within part 1904. OSHA will make the following data
from the various forms available in a searchable online database:
    Form 300A (Annual Summary Form)--All collected data fields will be
made available. In the past, OSHA has collected these data under the
ODI and during OSHA workplace inspections and released them in response
to FOIA requests. The annual summary form is also posted at workplaces
under Sec.  1904.32(a)(4) and (b)(5). OSHA currently posts
establishment-specific injury and illness rates calculated from the
data collected through the ODI on OSHA's public Web site at http://www.osha.gov/pls/odi/establishment_search.html. The 300A annual summary
does not contain any personally-identifiable information.
    Form 300 (the Log)--All collected data fields on the 300 Log will
generally be made available on the Web site. Employee names will not be
collected. OSHA occasionally collects these data during inspections as
part of the enforcement case file. OSHA generally releases these data
in response to FOIA requests. Also, Sec.  1904.29(b)(10) prohibits
release of employees' names and personal identifiers contained in the
forms to individuals other than the government, employees, former
employees, and authorized representatives. OSHA does not currently
conduct a systematic collection of the information on the 300 Log.
    Form 301 (Incident Report)--All collected data fields on the right-
hand side of the form (Fields 10 through 18) will generally be made
available. The Agency currently occasionally collects the form for
enforcement case files. OSHA generally releases these data in response
to FOIA requests. Section 1904.35(b)(2)(v)(B) prohibits employers from
releasing the information in Fields 1 through 9 (the left-hand side of
the form) to individuals other than the employee or former employee who
suffered the injury or illness and his or her personal representatives.
Similarly, OSHA will not publish establishment-specific data from the
left side of Form 301. OSHA does not release data from Fields 1 through
9 in response to FOIA requests. The Agency does not currently conduct a
systematic collection of the information on the Form 301. However, the
Agency does review the entire Form 301 during some workplace
inspections and occasionally collects the form for inclusion in the
enforcement case file. Note that OSHA will not collect or publish Field
1 (employee name), Field 2 (employee address), Field 6 (name of
treating physician or health care provider), or Field 7 (name and
address of non-workplace treating facility).
    While OSHA intends to make the information described above
generally available, the Agency also wishes to emphasize that it does
not intend to release personally identifiable information included on
the forms. For example, in some cases, information entered in Column F
(Describe injury or illness, parts of body affected, and object/
substance that directly injured or made person ill) of the 300 Log
contains personally-identifiable information, such as an employee's
name or Social Security Number. As a result, OSHA plans to review the
information submitted by employers for personally-identifiable
information. As part of this review, the Agency will use software that
will search for and de-identify personally identifiable information
before OSHA posts the data.
    It should also be noted that other federal agencies post
establishment-specific health and safety data with personal
identifiers, including names. For example, the Mine Safety and Health
Administration (MSHA) publishes information gathered during the
agency's investigations of fatal accidents. MSHA's Preliminary Report
of Accident, Form 7000-13, provides information on fatal accidents
including the employee's name, age, and a description of the accident.
MSHA also publishes the written Accident Investigation Report, which
details the nature and causes of the accident and includes the names of
other employees involved in the fatal incident.
    The Federal Railroad Administration (FRA) posts Accident
Investigation Reports filed by railroad carriers under 49 U.S.C. 20901
or made by the Secretary of Transportation under 49 U.S.C. 20902; in
the case of highway-rail grade crossing incidents, these reports
include personally identifiable information (age and gender of the
person(s) in the struck vehicle).
    Finally, the Federal Aviation Administration (FAA) posts National
Transportation Safety Board (NTSB) reports about aviation accidents.
These reports include personally identifiable information about
employees, including job history and medical information.

B. The Proposed Rule

    The proposed rule would have amended OSHA's existing recordkeeping
regulation at Sec.  1904.41 to add three new electronic reporting
requirements. First, OSHA would have required establishments that are
required to keep injury and illness records under part 1904, and had
250 or more employees in the previous calendar year, to electronically
submit information from these records to OSHA or OSHA's designee, on a
quarterly basis (proposed Sec.  1904.41(a)(1)--Quarterly electronic
submission of part 1904 records by establishments with 250 or more
employees).
    Second, OSHA would have required establishments that are required
to keep injury and illness records under part 1904, had 20 or more
employees in the previous calendar year, and are in certain designated
industries, to electronically submit the information from the OSHA
annual summary form (Form 300A) to OSHA or OSHA's designee, on an
annual basis (proposed Sec.  1904.41(a)(2)--Annual electronic
submission of OSHA annual summary form (Form 300A) by establishments
with 20 or more employees in designated industries). This second
submission requirement would have replaced OSHA's annual illness and
injury survey, authorized by the then-current version of 29 CFR
1904.41.
    Third, OSHA would have required all employers who receive
notification from OSHA to electronically submit specified information
from their part 1904 injury and illness records to OSHA or OSHA's
designee (proposed Sec.  1904.41(a)(3)--Electronic submission of part
1904 records upon notification).
    As previously discussed, in addition to the new requirements for
electronic

submission of part 1904 data, the preamble to the proposed rule stated
that OSHA intended to make the collected data public in order to make
the data useful to employers, employees, and the public in dealing with
safety and health issues. OSHA also stated in the preamble to the
proposed rule that the publication of specific data elements would have
been restricted in part by provisions under the Freedom of Information
Act (FOIA) and the Privacy Act, as well as specific provisions within
part 1904. OSHA proposed to make the following data from the various
forms available in a searchable online database:
    Form 300A--All fields could have been made available. Form 300A
does not contain any personally identifiable information.
    Form 300 (the Log)--All fields could have been made available
except for Column B (the employee's name).
    Form 301 (Incident Report)--All fields on the right-hand side of
the form (Fields 10 through 18) could typically have been made
available.

C. Comments on the Proposed Rule

    There were many comments supporting the proposed rule. Many
commenters commented that the collection of recordkeeping data would
allow OSHA to improve workplace safety and health and prevent injuries
and illnesses. Other commenters commented that publication of
information provided by the electronic submission of recordkeeping data
from covered establishments would allow employers, employees,
researchers, unions, safety and health professionals, and the public to
improve workplace safety and health. There were also comments that the
proposed rule was consistent with the actions of other federal and
state agencies, which already require the submission of health and
safety data.
    However, many commenters also raised potential concerns about the
proposed rule. Some commenters expressed concerns about the
implications of the publication of safety and health data for employee
privacy. There were also comments about the implications of the
proposed rule for employer privacy, especially with regard to
confidential commercial information. Other commenters commented that
OSHA underestimated the cost to businesses of implementing the proposed
rule, especially the proposed requirement that would have required
large establishments to submit data on a quarterly basis. In addition,
some commenters commented that the data provided to OSHA and to the
public as a result of this rule would not be beneficial.
    OSHA addresses all of the issues raised by commenters below.
Alternatives Included in the Proposed Rule
    In the preamble to the proposed rule, in addition to providing
proposed regulatory text, OSHA stated that it was considering several
alternatives. [78 FR 67263-65270]. OSHA requested comment on the
following regulatory alternatives.
Alternative A--Monthly Submission Under Proposed Sec.  1904.41(a)(1)
    In Alternative A, OSHA considered requiring monthly submission
instead of quarterly submission from establishments with 250 or more
employees.
    However, almost all commenters opposed this alternative. Several
commenters expressed concerns about the burdens of monthly submission
on employers (Exs. 1211, 1112). Several commenters also expressed
concerns about the effects of monthly submission on data quality (Exs.
1211, 1385, 1397). Other commenters commented that monthly reporting
would not provide much, if any, benefit over quarterly reporting (Exs.
1384, 1391).
    Ashok Chandran provided the only comment in support of this
alternative. He commented that ``[m]ore frequent reporting will
actually prevent distortion, as fewer reports would increase the chance
of a limited sample misrepresenting the conditions of an establishment.
So long as OSHA does not use reports in isolation to trigger
investigation, this risk is low'' (Ex. 1393).
    OSHA agrees with commenters who stated that monthly reporting would
increase the burden on employers and could result in the submission of
less accurate recordkeeping data. Given the potential extra burden
without an added benefit, OSHA has decided not to adopt Alternative A
from the proposed rule. As explained below, the final rule requires
annual electronic submission of part 1904 records by establishments
with 250 or more employees.
Alternative B--Annual Submission Under Proposed Sec.  1904.41(a)(1)
    In Alternative B, OSHA considered requiring annual submission for
establishments with 250 or more employees instead of quarterly
submission.
    Most commenters supported Alternative B, on grounds that annual
reporting would provide better-quality, more useful data and would be
less burdensome for both employers and OSHA.
    Commenters provided various reasons to support the idea that annual
reporting would provide better-quality data. First, some commenters
commented that one quarter is too short a period of time to generate
meaningful data (Exs. 0258, 1338, 1385, 1399, 1413). For example, the
American Meat Institute commented that ``breaking the data into
quarterly `bites' will produce numbers with no comparative value . . .
In fact, it is more likely to generate misleading, incorrect
information because injury and illness incidents typically occur on a
much more random basis than is reflected in what would amount to three-
month `snapshots' '' (Ex. 0258).
    Second, some commenters commented that quarterly reporting was more
likely to lead to underreporting. The Allied Universal Corporation
commented that ``[w]ith quarterly reporting, employers are unlikely to
record close cases because, in many instances, striking them later may
be impossible as the information has already been reported and posted
publicly by OSHA. Rather than assume such an additional burden,
employers will likely err on the side of not recording those incidents
where in doubt'' (Ex. 1192). The American Chemistry Council, the
Association of Energy Service Companies (AESC), and the International
Association of Amusement Parks and Attractions (IAAPA) provided similar
comments (Exs. 1092, 1323, 1427).
    Third, several commenters commented that quarterly reporting would
not provide enough time for employers to complete cases and catch data
mistakes (Exs. 0035, 0247, 1110, 1206, 1214, 1339, 1379, 1385, 1389,
1399, 1405, 1406). For example, the Glass Packaging Institute commented
that ``[t]he data is not static but will be a moving data set and
consequently of little value for evaluation or decisions. Cases are
added, deleted, change with time as information and cases and/or
treatment improve or worsen'' (Ex. 1405).
    ORCHSE Strategies, LLC commented that ``[employers] also review the
data at the end of the year to insure its accuracy before it is
included in company reports or submitted to OSHA or to BLS. They check
on outstanding cases; track day-counts for cases involving restricted
work activity, job transfer, and days away from work; check on ongoing
employee job limitations; prepare estimates of future days that will be
lost or restricted (beyond the end of the year) etc.'' (Ex. 1339). In
addition, the American Petroleum Institute

commented that ``29 CFR 1904.32 requires annual certification of the
300 Forms and the quarterly submittals would not be certified; thus,
[OSHA] would be relying on potentially inaccurate information'' (Ex.
1214).
    As for the usefulness of data provided by quarterly reporting, many
commenters stated that there is no evidence of benefits of quarterly
reporting over annual reporting for worker safety and health (Exs.
0156, 0258, 1110, 1126, 1206, 1210, 1221, 1225, 1322, 1339, 1406,
1412). For example, the North American Insulation Manufacturers
Association (NAIMA) commented that ``OSHA has failed to demonstrate
that the increased frequency of reporting will improve worker safety,
especially by imposing a four-fold burden increase on both employer and
agency personnel for quarterly rather than annual reporting. Indeed, it
cannot document such a result because there is no connection between
quarterly reporting and improved worker safety'' (Ex. 1221). NAIMA also
commented that ``the delay for OSHA to scrub the data [of PII before
publication] will likely obviate any perceived `timeliness' benefit
OSHA might make in attempting to justify quarterly rather than annual
data submission'' (Ex. 1221). The Fertilizer Institute (TFI) and the
Agricultural Retailers Association (ARA) provided similar comments (Ex.
1412).
    OSHA also received comments that quarterly reporting would be
overly burdensome for employers (Exs. 0247, 1112, 1126, 1206, 1210,
1214, 1221, 1332, 1338, 1339, 1379, 1389, 1390, 1405). For example,
ORCHSE Strategies, LLC commented that ``[v]erification is often an
iterative process that involves back-and-forth between the corporate
safety department and the site, with involvement of medical
practitioners, the injured or ill employee, supervisors and others.
Shifting from a single data submission to four data submissions per
year would add substantially to the already significant cost and burden
for these employers (at least by a factor of four). It would also
complicate the process; employers would have to create estimated day
counts for cases that are not closed at the time of each reporting and
then correct them when the cases are finally resolved'' (Ex. 1339).
    The Association of Union Constructors (TAUC) commented that
``[w]ith a proposed quarterly reporting frequency, often cases in the
construction industry may not be resolved quickly and there is no
method of recourse if the employer is found not at fault once the raw
data is public . . . A lag in the period of time between updating and
posting of injury/illness data could impose punitive consequences to
the contractor if the public or customers are reviewing their data in
real time'' (Ex. 1389). In addition, the Environmental, Health & Safety
Communications Panel (EHSCP) commented that quarterly reporting would
be a burden for safety and health professionals and ``strongly
recommend[ed] that nothing more frequent than an annual submission be
considered so as to minimize the time that safety and health
professionals are required to devote to paperwork and data review
rather than on proactive safety efforts'' (Ex. 1331).
    Commenters commented particularly about the resources needed for
OSHA to remove PII from the collected data before publishing the data.
For example, the North American Insulation Manufacturers Association
(NAIMA) commented that ``OSHA will tax its own resources to process,
review, and scrub the data four times per year. This data will contain
sensitive personal information, and OSHA will need to edit the data
before making it public. To do this on a quarterly basis will be time
consuming and resource intensive'' (Ex. 1221). The Phylmar Regulatory
Roundtable (PRR) questioned whether OSHA has the capacity to analyze
quarterly data, commenting that ``annual data submissions from 580,000
employers strike PRR as a large volume of data for OSHA to analyze.
Multiplying that number by quarterly submissions has more potential for
detriment than benefit'' (Ex. 1110).
    However, several commenters opposed Alternative B on grounds that
quarterly data would be more useful and would not increase the burden
on employers (Exs. 1211, 1381, 1384). The International Brotherhood of
Teamsters commented that ``[q]uarterly submissions will help identify
emerging trends or serious incidents within a much more rapid timeframe
than annual reporting, and allow for rapid intervention to stop such
trends or respond to such incidents before they continue'' (Ex. 1381).
Similarly, the International Union (UAW) commented that ``annual
reporting would make it impossible to track seasonal variations in the
type or rate of injuries and illnesses'' (Ex. 1384).
    In response, OSHA agrees with commenters who stated that annual
reporting would lessen the burden on employers. OSHA believes that
companies' review of the data at the end of the year will help to
improve the accuracy of the submitted data, because employers are
already required to certify their records at the end of the calendar
year under current part 1904. In addition, OSHA agrees that annual
reporting will provide more meaningful data, as well as higher-quality
data, because employers will have more time to update and revise the
data before reporting to OSHA. Finally, OSHA agrees with the commenters
who stated that annual reporting would lessen the burden on OSHA, by
reducing both the total volume of data and the amount of personally
identifiable information to remove before publication. Therefore,
unlike the proposed rule, which would have required quarterly
submission by establishments with 250 or more employees, Sec.
1904.41(a)(1) of the final rule requires annual electronic submission
of part 1904 records by establishments with 250 or more employees.
Alternative C--One Year Phase-in of Electronic Reporting Under Proposed
Sec.  1904.41(a)(1)
    In Alternative C, OSHA considered a phase-in of the electronic
reporting requirement, under which establishments with 250 or more
employees would have had the option of submitting data on paper forms
for the first year the rule would have been in effect.
    Several commenters opposed Alternative C on grounds that large
companies affected by this rule should be able to electronically submit
data in the first year, especially the Form 300 (Log) and 300A (annual
summary). These commenters explained that submission of data in paper
form would delay the processing and publication of the data (Exs. 1211,
1345, 1350, 1381, 1384, 1387, 1424). The International Brotherhood of
Teamsters commented that ``these companies are certainly large enough
to handle the responsibility, and will receive the analytic benefits
such a reporting system provides'' (Ex. 1381). Other commenters stated
that there should not be a phase-in of the electronic submission
requirement because OSHA does not have the resources to process
thousands of submitted paper forms (Exs. 1395, 1211).
    However, other commenters supported Alternative C to provide time
for employers and OSHA to come up with methods for protecting worker
confidentiality. The International Union (UAW) commented that ``OSHA
may find it useful to have a phase-in period for submission of 301
reports by these employers to allow time for OSHA to come up with a
method for scrubbing data to ensure worker confidentiality'' (Ex.
1384). The United Food & Commercial Workers International

Union (UFCW) and the Services Employees International Union (SEIU)
provided similar comments (Exs. 1345, 1387). FedEx Corporation
commented that ``if employers are required to collect Form 301 data,
then given that the reporting of detailed injury and illness data is a
wholly novel recordkeeping requirement which will require an investment
of significant time and resources for implementation, FedEx supports a
phase-in period of at least one-year'' (Ex. 1338).
    In response, OSHA agrees with commenters who stated that larger
companies (those with 250 or more employees) have the resources to
electronically submit injury and illness data to OSHA in the first
year. According to commenters, in many cases, larger companies already
keep OSHA injury and illness records electronically, so a requirement
to submit such records electronically is not unduly burdensome (Exs.
1103, 1188, 1209, 1211, 1387, 1393, 1424) (see also Section VI Final
Economic Analysis and Regulatory Flexibility Analysis).
    OSHA also agrees with commenters who stated that the Agency does
not have the resources to handle the large volumes of non-electronic
data that Alternative C would have produced. Based on OSHA's experience
with paper submissions to the ODI, the Agency estimates that processing
a paper submission might take 2 minutes for the data from Form 300A and
1 minute for processing the actual paper form. In addition, based on
BLS's experience with paper submissions to the SOII, the Agency
estimates that processing each reported case in a paper submission
might take 2 minutes. OSHA estimates that 33,000 establishments will be
subject to final Sec.  1904.41(a)(1), accounting for 713,000 reported
cases. In addition, roughly 30 percent of the establishments in the ODI
submitted their data on paper. Based on these estimates (3 minutes per
paper submission; 2 minutes per case; 30 percent of establishments
submit on paper; 33,000 establishments; 713,000 cases), OSHA estimates
that the one-year paper submission phase-in option in Alternative C
would account for 495 hours for the Form 300A and 7,130 hours for the
cases, for a total of 7,625 hours, or almost four full-time employees
at 2,000 hours per full-time employee. Under a more optimistic scenario
assuming 10 percent of establishments submitting on paper, the one-year
paper submission phase-in option in Alternative C would account for 165
hours for the Form 300A and 2,377 hours for the cases, for a total of
2,542 hours, or more than one full-time employee. Under either
scenario, OSHA would be unable to make timely use of the data.
    Additionally, with respect to commenters who stated that a phase-in
would provide more time for employers and OSHA to develop methods to
protect employee confidentiality, OSHA notes that a requirement that
only provides for electronic submission of data will help the Agency
search for and redact confidential information. As noted elsewhere in
this preamble, OSHA will use existing software to remove personally
identifiable information before posting data on the publicly-accessible
Web site. Also as noted above, the proposed rule would have required
establishments with 250 or more employees to electronically submit data
on a quarterly basis, whereas Sec.  1904.41(a)(1) of the final rule
requires annual submission. This change will provide large employers
with additional time to prepare for the first electronic submission of
recordkeeping data on March 2, 2017. Accordingly, the final rule
requires electronic submission of part 1904 records by establishments
with 250 or more employees, without a phase-in period for paper
submission.
Alternative D--Three Year Phase-in of Electronic Reporting Under
Proposed Sec.  1904.41(a)(2)
    In Alternative D, OSHA considered a phase-in of the electronic
reporting requirement, under which establishments with 20 or more
employees in designated industries would have had the option of
submitting data on paper forms for the first three years this rule
would have been in effect.
    All of the commenters who specifically commented on Alternative D
supported a phased-in electronic submission requirement to allow
smaller companies to adjust to electronic reporting. Different
commenters supported a phase-in period of different lengths--one, two,
or three years, or an unspecified ``reasonable'' period of time (Exs.
1206, 1211, 1338, 1350, 1353, 1384, 1387, 1424).
    OSHA also received a comment from the American College of
Environmental Medicine (ACEM) stating that OSHA should provide a phase-
in for ``employers who do not have access to the Internet pending full
distribution of Internet services throughout the Nation'' (Ex. 1327).
The Dow Chemical Company commented that ``a phase-in period should be
provided for: At least one year after OSHA's web portal is created,
debugged, tested and operational. However, a phase-in should consist of
a period without a paper reporting requirement, so companies can deploy
their resources toward developing the systems and information that will
be necessary in order to report electronically'' (Ex. 1189). The
National Ready Mixed Concrete Association (NRMCA), International
Association of Industrial Accident Boards and Commissions (IAIBC), and
Bray International made similar comments (Exs. 0210, 1104, 1401).
    OSHA agrees with the comments for Alternative C, above, that OSHA
does not have the resources to handle the large volumes of non-
electronic data that Alternative D would produce. As above, based on
OSHA's experience with paper submissions to the ODI, the Agency
estimates that processing a paper submission might take 2 minutes for
the data from Form 300A and 1 minute for processing the actual paper.
OSHA estimates that 430,000 establishments will be subject to final
Sec.  1904.41(a)(2). In addition, OSHA estimated that roughly 30
percent of the establishments in the ODI submitted their data on paper.
Based on these estimates (3 minutes per paper submission; 30 percent of
establishments submit on paper; 430,000 establishments), OSHA estimates
that the three-year paper submission phase-in option in Alternative D
would account for 6,450 hours per year for three years, or 19,350 hours
total. Under a more optimistic scenario assuming 10 percent of
establishments submitting on paper, the three-year paper submission
phase-in option in Alternative D would account for 2,150 hours per year
for three years, or 6,450 hours total. Under either scenario, OSHA
would be unable to make timely use of the data.
    As with Alternative C, immediate electronic reporting will make the
data available to employers, the public, and OSHA in a timelier manner,
because OSHA will not have to take the time to convert paper entries
into electronic format. Also, an electronic format will make it much
easier and faster for OSHA to prepare the data for publication.
Therefore, the final rule requires annual electronic submission of the
OSHA Form 300A by establishments with 20 or more employees, but fewer
than 250 employees, in designated industries, without a phase-in period
for paper submission.

    With respect to commenters' concern about Internet availability,
OSHA believes that establishments with 20 or more employees are highly
likely to have access to the Internet, and the burden of electronic
reporting is low.
Alternative E--Widen the Scope of Establishments Required To Report
Under Proposed Sec.  1904.41(a)(1)
    In Alternative E, OSHA considered widening the scope of
establishments required to report under this proposed section of the
rule from establishments with 250 or more employees to establishments
with 100 or more employees.
    In support of Alternative E, commenters stated that increasing the
number of establishments required to report would in turn increase
public access to establishment-specific injury and illness data (Exs.
1211, 1395). There were also comments that lowering the size criterion
to 100 employees would pose little burden on medium-sized facilities,
because establishments of that size often already have standardized
recordkeeping (Exs. 1211, 1358).
    However, there were also comments opposing Alternative E due to
employer burden and volume of data. For employer burden, the National
Automobile Dealers Association (NADA) commented that ``[u]nder no
circumstances should the proposed threshold for quarterly reporting be
expanded to include establishments with 100 or more employees. As noted
above, the proposed mandate is unjustified at the proposed 250-employee
threshold. Any expansion would just exacerbate the burden for a much
larger universe of employers with no commensurate benefit'' (Ex. 1392).
    For volume of data, several commenters commented that OSHA should
assess the effect of lowering the size criterion to 200 employees and
that 250 employees should be the maximum size criterion. For example,
the AFL-CIO commented that ``the 250 employee cut-off should be the
maximum cut-off for such reporting. We encourage the agency to examine
the effect of lowering the establishment threshold to 200 employees to
determine and assess the additional information that would be captured
by such as change, particularly information from higher hazard
industries that are of greater concern'' (Ex. 1350). The International
Brotherhood of Teamsters and the International Union, United
Automobile, Aerospace and Agriculture Implement Workers of America
(UAW) provided similar comments (Ex. 1381, 1384). The Service Employees
International Union (SEIU) commented that ``we believe 250 employees
should be the maximum. We would support a phased in lowering of this
number over several years to 100 employees as electronic reporting
becomes even more routine and as the workforce continues to fragment
into smaller units, as many expect'' (Ex. 1387).
    OSHA agrees with commenters who stated that reducing the size
criterion to 100 would increase the burden on employers with
diminishing benefit. The number of establishments that would be
required to report under this proposed section under Alternative E
would increase from 34,000 to 120,000. This alternative would also
increase the number of injury and illness cases with incident report
(OSHA Form 301) and Log (OSHA Form 300) data from 720,000 to 1,170,000.
Therefore, like the proposed rule, the final rule requires electronic
submission of all three recordkeeping forms by establishments with 250
or more employees.
Alternative F--Narrow the Scope of Establishments Required To Report
Under Proposed Sec.  1904.41(a)(1)
    In Alternative F, OSHA considered narrowing the scope of
establishments required to report under this section of the rule from
establishments with 250 or more employees to establishments with 500 or
more employees.
    Several commenters supported Alternative F, on grounds that it
would lower the burden of the rule. The National Council of Farmer
Cooperatives (NCFC) commented that ``[w]e encourage OSHA to broaden the
scope of establishments that fall under this section from 250 to 500
employees, reducing the number of establishments burdened by quarterly
reporting requirements'' (Ex. 1353). FedEx Corporation provided a
similar comment (Ex. 1338), adding that raising the size criterion to
500 employees would still provide OSHA with a ``statistically
significant pool of injury and illness data'' (Ex. 1338).
    However, Logan Gowdey commented that raising the size criterion
from 250 employees to 500 employees would reduce ``establishments
covered from 38,000 to 13,800 and reports from 890,000 to 590,000.
While the number of reports does not decrease that much, the number of
establishments decreases dramatically, which will limit the importance
of the data collected'' (Ex. 1211).
    OSHA agrees that Alternative F's great reduction in the number of
establishments and employees covered by Sec.  1904.41(a)(1) would
reduce the utility of the data. Under Alternative F, the number of
establishments that would be required to report under Sec.
1904.41(a)(1) would decrease from 34,000 to 12,000. This alternative
would also decrease the number of injury and illness cases with
incident report (OSHA Form 301) and Log (OSHA Form 300) data from
720,000 to 495,000. Therefore, like the proposed rule, the final rule
requires electronic submission of part 1904 records by establishments
with 250 or more employees.
Alternative G--Three-Step Process of Implementing the Reporting
Requirements Under Proposed Sec.  1904.41(a)(1) and (2)
    In Alternative G, OSHA considered a three-step process of
implementing the reporting requirements under the proposed Sec.
1904.41(a)(1) and (2).
    For this proposed alternative, high-hazard industry groups (four-
digit NAICS) would have been defined as having rates of injuries and
illnesses involving days away from work, restricted work activity, or
job transfer (DART) that are greater than 2.0. High-hazard industry
sectors (two-digit NAICS) would have been defined as agriculture,
forestry, fishing and hunting; utilities; construction; manufacturing;
and wholesale trade.
    In the first step of this three-step implementation process,
reporting would have been required only from the establishments in
proposed Sec.  1904.41(a)(1) and (2) that are in high-hazard industry
groups (four-digit NAICS with a DART rate greater than or equal to
2.0).
    In the second step of the three-step implementation process, OSHA
would have conducted an analysis, after a specified period of time, to
assess the effectiveness, adequacy, and burden of the reporting
requirements in the first step. The results of this analysis would then
have guided OSHA's next actions.
    The third step of the three-step implementation process would
therefore have depended on the results of OSHA's analysis.
    The only comment in support of Alternative G was from Southern
Company, which commented that ``[a] smaller pilot group of employers in
historically the highest incident rates will allow OSHA to determine if
its system works as intended'' (Ex. 1413). Other commenters opposed
Alternative G for various reasons, including scope, effectiveness, and
implementation (Exs. 1211, 1350, 1381, 1384, 1387). For example, the
International Brotherhood of Teamsters commented that ``[w]e support
the proposed approach rather than this confusing 3-step alternative.
The current approach is a better means for capturing higher hazard
industries

and establishments. The rule already has different requirements for
different size employers. OSHA should keep this rule as simple as
possible. Changing criteria through phase in would only complicate the
implementation of the rule'' (Ex. 1381).
    In response, OSHA agrees that Alternative G would reduce the
effectiveness of the rule, increase uncertainty for employers, and make
implementation more difficult. Therefore, like the proposed rule, the
final rule requires electronic submission of part 1904 records by
establishments with 250 or more employees, and annual electronic
submission of the Form 300A annual summary by establishments with 20 to
249 employees in designated industries, without the multi-step
implementation process in this alternative.
Alternative H--Narrow the Scope of the Reporting Requirements Under
Proposed Sec.  1904.41(a)(1) and (2)
    The proposed Sec.  1904.41(a)(1) would have applied to all
establishments with 250 or more employees in all industries covered by
the recordkeeping regulation. The proposed Sec.  1904.41(a)(2) would
have applied to establishments with 20 or more employees in designated,
i.e., high-hazard industry groups (classified at the four-digit level
in NAICS) and/or high-hazard industry sectors (classified at the two-
digit level in NAICS). High-hazard industry groups (four-digit NAICS)
would have been defined as industries with DART rates that are greater
than or equal to 2.0. High-hazard industry sectors (two-digit NAICS)
would have included agriculture, forestry, fishing and hunting;
utilities; construction; manufacturing; and wholesale trade.
    In Alternative H, OSHA considered an alternative approach to
defining the industry scope of these two sections of the proposed rule,
by limiting the industry coverage to include only industry groups that
meet a designated DART cut-off. This approach would not have included
coverage of designated industry sectors as a criterion.
    Some commenters supported Alternative H as a way for OSHA to focus
its efforts on high-hazard industry groups. For example, FedEx
Corporation supported Alternative H with a DART cut-off rate of 3.0,
commenting that ``this would focus OSHA's limited resources on high
hazard industries and employers with high DART rates'' (Ex. 1338). The
American Coatings Association (ACA) and the Reusable Industrial
Packaging Association (RIPA) made similar comments (Exs. 1329, 1367).
    The National Retail Federation (NRF) commented, ``In NRF's view,
both the 2.0 as well as the 3.0 DART rate are too low. NRF believes
that, if OSHA is going to promulgate this standard at all, it should
revise the proposed threshold DART rate to ensure that this rule is
designed to focus attention on true high hazard industries . . . A DART
cut-off of 3.6 derives from current data and is reasonably connected to
the goal of the Proposed Regulation and any inspection plan that
originates from the data collection'' (Ex. 1328).
    However, other commenters opposed Alternative H because it would
greatly reduce the coverage of the rule (Exs. 1211, 1350, 1374 1381,
1384, 1387). The International Brotherhood of Teamsters commented, ``We
support the proposed approach rather than the alternative. The current
approach is a better means for capturing higher hazard industries and
establishments. Lowering [coverage] to industries with a DART rate of
greater than/equal to 2.0 would reduce the number of smaller
establishments covered by about 100,000 and the number of larger
establishments covered by 16,000'' (Ex. 1381).
    The AFL-CIO commented that ``[T]hese thresholds are too restrictive
and limited. Indeed, according to the preamble, employing a DART
threshold of 3.0 would cover fewer establishments (152,000) than are
covered under the current ODI (160,000). The current ODI has employed a
combination of 2 digit and 4 digit thresholds similar to the proposed
rule. There is no reason to change this approach'' (Ex. 1350).
    UNITE HERE also expressed concerns that Alternative H would leave
vulnerable workers at risk, commenting that ``the alternative proposals
to limit coverage to a DART threshold of 3.0 at the four digit level
would result in excluding NAICS 7211--Traveler Accommodation. This
industry sector is a growing sector with a growing workforce. Certain
job titles are predominantly female, women of color and immigrant
workers. We believe excluding 7211 would result in increased workplace
injuries and illnesses and decreased prevention'' (Ex. 1374).
    OSHA believes that Alternative H would overly limit the scope of
the rule and agrees with commenters who stated that there is no
compelling reason to change the approach OSHA used in the ODI of using
a combination of industrial classification levels to identify high-
hazard industry sectors and groups. In addition, using a DART cut-off
of 3.0 would result in having less establishment-specific data for
establishments with 20 or more employees available to OSHA and the
public. As stated in the preamble to the proposed rule, the intention
of this rulemaking is to increase the amount of establishment-specific
data reported to OSHA. Therefore, like the proposed rule, the final
rule requires electronic submission of part 1904 records by
establishments with 250 or more employees, as well as annual electronic
submission of the OSHA Form 300A by establishments with 20 to 249
employees in designated high-hazard industries (four-digit NAICS) and
industry sectors (two-digit NAICS).
Alternative I--Enterprise-Wide Submission
    In the preamble to the proposed rule, OSHA stated that it was
considering adding a provision that would have required some
enterprises with multiple establishments to collect and submit some
part 1904 data for those establishments. Alternative I would have
applied to enterprises with a minimum threshold number of
establishments (such as five or more) that are required to keep records
under part 1904. These enterprises would have been required to collect
OSHA Form 300A (annual summary) data from each of their establishments
that are required to keep injury/illness records under part 1904. The
enterprise would then have electronically submitted the data from each
establishment to OSHA. For example, if an enterprise had seven
establishments required to keep injury/illness records under part 1904,
the enterprise would have submitted seven sets of data, one for each
establishment.
    OSHA also stated in the preamble to the proposed rule that
Alternative I would have applied to enterprises with multiple levels
within the organization. For example, if XYZ Chemical Inc. owns three
establishments, but is itself owned by XYZ Inc., which has several
wholly owned subsidiaries, then XYZ Inc. would have done the reporting
for all establishments it controls. These requirements would have only
applied to establishments within the jurisdiction of OSHA and subject
to OSHA's recordkeeping regulation. Establishments within the corporate
structure but located on foreign soil would not have been subject to
the requirement in Alternative I.
    There were general comments supporting Alternative I, opposing
Alternative I, and providing suggestions about the implementation of
Alternative I. The proposed rule also asked 16 specific questions
related to Alternative I, and OSHA received comments addressing those
questions as well.

    Commenters who generally supported Alternative I did so for a
variety of reasons, including more useful information, more corporate
involvement in establishment-level prevention of workplace injuries and
illnesses, and coordination with current OSHA enterprise-level efforts.
    For more useful information, NIOSH commented that a 2006 study by
Mendeloff et al. found that ``firm size (or enterprise size) may be
more important than establishment size in determining levels of risk .
. . Theoretically, enterprise size may have a substantial impact on the
ability to prevent injuries and illnesses. Business policies,
practices, and strategies generally vary by size of employer, and large
businesses may have more resources for protecting employee safety and
health, and reducing workplace hazards and exposures compared with
small businesses. Enterprise-level differences in occupational safety
and health management systems may exist in specialization and
expertise, development of training and reporting systems, amount of
available data, and other factors'' (Ex. 0216).
    Several commenters commented that enterprise-level safety and
health data would be extremely useful to OSHA as well as other groups
(Exs. 0241, 1278, 1327, 1345, 1350, 1384, 1387). For example, Worksafe
commented that this data would be ``extremely useful, not only to OSHA
but also to advocates, employers, employees, unions, and
representatives to ensure improved identification and resolution of
workplace health and safety hazards'' (Ex. 1278). The National Safety
Council (NSC) added that ``[t]he value of benchmarking would be
substantially enhanced if the Enterprise Wide Alternative is adopted.
This option would allow for the calculation of enterprise wide rates
and allow for more meaningful benchmarking among enterprises'' (Ex.
0241).
    There were also several comments about the scarcity of enterprise-
level data, especially for OSHA. NIOSH commented that ``few data are
available at the enterprise level. This lack of data is a principal
source of imprecision in defining small business. Greater clarity in
measurement of both structure and size of employer would aid small
business research and prevention efforts such as those conducted by the
NIOSH Small Business Assistance and Outreach Program'' (Ex. 0216). The
AFL-CIO and Change to Win provided similar comments (Exs. 1350, 1380).
    With respect to corporate involvement in establishment-level
prevention of workplace injuries and illnesses, the American College of
Occupational and Environmental Medicine commented that ``enterprise-
level reporting will increase the likelihood that the chief corporate
officers are aware of potential variations in the safety of different
business processes and establishment practices that put employees at
risk. Greater corporate awareness may enhance corporate oversight and
improve health and safety throughout all establishments'' (Ex. 1327).
The AFL-CIO and the Service Employees International Union (SEIU)
provided similar comments (Exs. 1350, 1387).
    For coordination with current OSHA enterprise-level efforts, the
AFL-CIO commented that ``[t]he concept of corporate level
responsibility under the OSH Act is well-established. While the
majority of OSHA's enforcement efforts are focused at the establishment
level, the OSH Act itself and its obligations, including the
recordkeeping requirements, apply to employers. For decades, OSHA has
utilized corporate-wide settlements as a means to bring about
compliance on a corporate-wide basis, and recently OSHA has attempted
to utilize this corporate-wide approach in its initial enforcement
actions. Under the current Severe Violator Enforcement Program (SVEP),
violations at one establishment trigger expansion of oversight to other
establishments of the same employer'' (Ex. 1350). The Service Employees
International Union (SEIU) provided a similar comment (Ex. 1387).
    Finally, the United Steelworkers (USW) commented that
``[e]nterprise wide data must retain discernible facility
identification information so that stakeholders can determine which
facility each injury or illness entry occurred [in]. This will provide
stakeholders with the ability to determine where specific hazards exist
and engage in efforts to eliminate or reduce these hazards'' (Ex.
1424).
    On the other hand, several commenters generally opposed
implementation of Alternative I for various reasons, including the
comparative ineffectiveness of enterprises versus establishments in
promoting workplace health and safety, reduced data quality, employer
burden, and legality (Exs. 1198, 1206, 1221, 1338).
    For the effectiveness of enterprises versus establishments in
promoting workplace health and safety, the Food Marketing Institute
commented that ``there are many corporate hierarchies in which there
are `enterprises' above `establishments' that are not involved in or
responsible for the safety controls in place at the establishments.
Indeed, there are many instances in which a parent company may own 51%
of the stock of a subsidiary but is in no way involved in that
subsidiary's day-to-day activities'' (Ex. 1198). The North American
Insulation Manufacturers Association (NAIMA) provided a similar comment
(Ex. 1221).
    FedEx Corporation commented that ``the safety resources in place at
each FedEx operating company . . . are in the closest proximity to the
unique day-to-day operations of their establishments, and are therefore
best equipped to enhance the workplace safety of their employees'' (Ex.
1338). Similarly, the Interstate Natural Gas Association of America
(INGAA) also commented that ``[i]t is well understood that separate
establishments, even separate establishments that operate as part of a
single larger enterprise, do not all operate the same: each
establishment has different personnel, procedures, processes and
protocols'' (Ex. 1206).
    There were also comments that enterprise-level data would not be
useful for improving workplace safety and health (Exs. 1198, 1279,
1338, 1408, 1412). For example, the National Association of Home
Builders (NAHB) commented that ``OSHA claims that enterprise-wide
submission of establishment data to the enterprise will improve
communication and reporting between establishments and enterprises and
this will lead to enterprise`s ability to solve establishment safety
and health problems . . . Again, the agency has failed to establish any
benefits for the proposed rulemaking . . . That is readily apparent
here with OSHA`s proposed claims regarding the enterprise-wide
alternative. OSHA fails to cite any example, research paper, case
study, or journal article to support this claim'' (Ex. 1408).
    The National Association of Manufacturers (NAM) commented that
``[t]here is no evidence suggesting that there is currently a lack of
communication regarding safety and health between establishments and
enterprises, nor is there any evidence that this alleged benefit will
somehow reduce workplace injuries and illnesses'' (Ex. 1279).
    For data quality, the North American Insulation Manufacturers
Association (NAIMA) commented that ``[w]ith certain umbrella
corporations holding levels upon levels of subsidiaries, it could
conceivably turn into a never-ending task . . . OSHA will undoubtedly
get multiple reports on the same sites, omitted reports, and have a
massive burden trying to audit all that information. At best, it is
impractical and imprudent to pursue enterprise-wide reporting (Ex.
1221). The

International Association of Drilling Contractors (IADC) commented that
``[m]any member companies have establishments (rigs) operating in
multiple zip codes. Grouping them together in one enterprise report
would not allow for data separation into various states'' (Ex. 1199).
    Several commenters commented that enterprise-wide submission would
create confusion when applying OSHA's recordkeeping requirements (Exs.
1198, 1338, 1343, 1356, 1411). For example, the Food Marketing
Institute commented that ``new definitions will have to be created for
all the core terminology (e.g., `enterprise') and, as legal history has
demonstrated repeatedly, regardless of the definition, much litigation
will be generated before the true bounds of the terms are discovered.
Further, the opportunities for wide-scale confusion and error are
abundant'' (Ex. 1198). Other commenters expressed similar concerns
about definitions (Exs. 1200, 1221).
    In response, OSHA has decided not to include a requirement in the
final rule for enterprise-wide collection and submission of
recordkeeping data. OSHA based this decision on two main reasons.
First, OSHA agrees with commenters who stated that it would be
difficult to administer an enterprise-wide collection and submission
requirement. Specifically, because there are wide variations in
corporate structure, OSHA believes that it would be difficult to
establish a part 1904 definition of enterprise. This is particularly a
concern when some corporate structures include establishments that are
otherwise legally separate entities. Also, the question of enterprise
ownership or control of specific establishments can be an extremely
complex legal issue, especially when parent companies have multiple
divisions or subsidiaries. OSHA also believes that in some cases it may
be difficult for larger enterprises to identify all of the
establishments under its ownership or control.
    Second, when the proposed rule for this rulemaking was issued in
November 2013, OSHA's recordkeeping regulation included a list of
partially-exempt industries based on the Standard Industrial
Classification (SIC) system. On September 18, 2014, OSHA published a
final rule in the Federal Register revising the list of partially-
exempt industries in appendix A to subpart B of part 1904. [79 FR
56130]. As part of this revision, partial exemption to OSHA's
recordkeeping regulation is now based on the North American Industry
Classification System (NAICS).
    Compared to the SIC system, NAICS established several new industry
categories, including specific categories for establishments conducting
office or management activities. One of the industry classifications
newly partially exempt from OSHA recordkeeping requirements is NAICS
5511, Company Management and Enterprises. Because of this change, OSHA
believes it cannot now include a requirement in this final rule for
enterprise-wide collection and submission of part 1904 data.
    OSHA also wishes to point out that nothing in this final rule
prevents enterprises or corporate offices from voluntarily collecting
and submitting part 1904 data for their establishments. Based on the
comments to Alternative I, as well as the Agency's own experience, OSHA
believes that there are benefits for enterprise-wide collection and
submission of recordkeeping data. As noted by commenters, large
companies generally have more resources for protecting employee safety
and health and reducing workplace hazards and exposures. Enterprise-
level collection and submission of part 1904 data increases the
likelihood that corporate offices will be aware of variations in
establishment processes and practices that place employees at risk.
OSHA believes that greater corporate involvement and oversight enhance
safety and health at all establishments. Accordingly, OSHA encourages
enterprises and corporate offices to voluntarily collect and
electronically submit part 1904 records for their establishments
required to submit such records under the final rule.
Questions in the NPRM
    In addition to Alternatives A through I, the preamble to the
proposed rule included several questions about specific issues in this
rulemaking. Some of these issues are addressed elsewhere in this
preamble. The remaining issues are addressed below.
Implications of Required Electronic Data Submission
    In the preamble to the proposed rule, OSHA asked, ``What are the
implications of requiring all data to be submitted electronically? This
proposed rule would be among the first in the federal government
without a paper submission option.'' [78 FR 67271].
    Several commenters supported mandatory electronic submission. The
Phylmar Regulatory Roundtable (PRR) commented that ``PRR company
establishments currently collect and record injury and illness data
manually and electronically. Members prefer submitting data
electronically over paper submission'' (Ex. 1110). The United Food &
Commercial Workers International Union (UFCW) commented that ``large
employers (those greater than 250) can meet requirements for mandatory
electronic reporting once OSHA provides the technical means to do so''
(Ex. 1345).
    The American Federation of Teachers (AFT) commented, ``Once the
[electronic reporting] requirement is in place, OSHA will for the first
time have the most comprehensive and timely data base on large and high
hazard establishments. The agency will be able to do frequent and
systematic comparisons between like establishments and better target
consultation and enforcement. There will also be opportunities to track
patterns of specific injuries and illnesses as we have never had
before. This ability will be important for research as well as
enforcement . . . Electronic reporting will assist us in not only
identifying new hazards but also measuring their impact of in a timely
manner (Ex. 1358). The AFL-CIO made a similar comment (Ex. 1350).
    However, many other commenters expressed concern that only allowing
electronic submission would burden small establishments without
Internet access, especially those in rural areas, and that OSHA should
continue to allow a paper-based reporting option (Exs. 0179, 0211,
0253, 0255, 1092, 1113, 1123, 1124, 1190, 1198, 1199, 1200, 1205, 1273,
1322, 1327, 1332, 1342, 1343, 1359, 1366, 1370, 1386, 1401, 1408, 1410,
1411, 1416, 1417). For example, the American Forest & Paper Association
commented that ``OSHA must continue to allow a paper-based reporting
option. Many businesses, particularly small firms located in rural
areas, do not have ready access to the Internet or may find electronic
reporting burdensome because they currently have a paper-based record
system'' (Ex. 0179). The Texas Cotton Ginners Association (TCGA) made a
similar comment (Ex. 0211). The Food Marketing Institute further
commented that ``OSHA acknowledges that 30% of 2010 ODI establishments
did not electronically submit injury and illness information and that
``most agencies'' currently allow paper submission of information. Id.
at 67273. This confirms that OSHA is aware that not all small
businesses will have the access necessary for electronic submission''
(Ex. 1198).
    Several commenters expressed particular concern about the burden of
mandatory electronic submission on farmers. The California Farm Bureau
Federation (CFBF) commented that a

recent USDA survey showed that ``68 percent of farmers (both livestock/
poultry and crop producers) have a computer and only 67 percent have
internet access . . . the same USDA report shows that only a mere 40
percent of farmers actually use a computer to conduct their farming
business. Should OSHA move forward with the rule, the agency must give
consideration to allowing paper submissions. Because submission of
these records will be mandatory, failing to do so will create a
hardship on agricultural employers, and increase the cost burden of the
rule for employers'' (Ex. 1366). The American Farm Bureau Federation
(AFBF), Pennsylvania Farm Bureau (PFB), the New York Farm Bureau
(NYFB), and the Louisiana Farm Bureau Federation (LFBF) provided
similar comments (Exs. 1113, 1359, 1370, 1386).
    OSHA agrees with the commenters who supported electronic
submission. Specifically, OSHA believes that electronic submission is
necessary if a data system is to provide timely and useful
establishment-specific information about occupational injuries and
illnesses. In addition, as discussed in Section VI Final Economic
Analysis and Regulatory Flexibility Analysis, OSHA believes that
establishments with 20 or more employees are highly likely to have
access to the Internet and that the burden of electronic reporting is
low even for the few employers for whom it may be more difficult to
access the Internet. Consequently, the final rule requires electronic
submission of injury and illness records to OSHA.
    Commenters also expressed several technical concerns about the
electronic submission requirement. The Associated General Contractors
of New York, LLC (AGC NYS) expressed the concern that ``those that
attempted to submit their information but failed due to a Web site that
does not function properly may also be considered to be non-compliant
with such regulations'' (Ex. 1364). Both the National Ready Mixed
Concrete Association (NRMCA) and the American Subcontractors
Association (ASA) suggested that OSHA should maintain a paper
submission option for establishments experiencing temporary technical
difficulties with electronic submission (Exs. 0210, 1322).
    In response, OSHA believes that there are more cost-effective ways
to deal with Web site problems than maintaining a paper submission
option. For example, OSHA plans to allocate resources to help employers
who have difficulty submitting required information because of
unforeseen circumstances. Specifically, OSHA intends to establish a
help desk to support data collection and submission under the final
rule. In addition, employers will be able to report the information
from a different location, such as a public library. Further, for the
data collection under the ODI, OSHA provided employers multiple chances
after the due date to submit their data before issuing citations for
non-response. OSHA expects to continue this practice when employers
have technical issues and are unable to submit their information under
this final rule.
    In addition, OSHA will phase in implementation of the data
collection system. In the first year, all establishments required to
routinely submit information under the final rule will be required to
submit only the information from the Form 300A (by July 1, 2017). In
the second year, all establishments required to routinely submit
information under the final rule will be required to submit all of the
required information (by July 1, 2018). This means that, in the second
year, establishments with 250 or more employees that are required to
routinely submit information under the final rule will be responsible
for submitting information from the Forms 300, 301, and 300A. In the
third year, all establishments required to routinely submit under this
final rule will be required to submit all of the required information
(by March 2, 2019). This means that beginning in the third year (2019),
establishments with 250 or more employees will be responsible for
submitting information from the Forms 300, 301, and 300A, and
establishments with 20-249 employees in an industry listed in appendix
A to subpart E of part 1904 will be responsible for submitting
information from the Form 300A by March 2 each year. This will provide
sufficient time to ensure comprehensive outreach and compliance
assistance in advance of implementation.
    Finally, OSHA will use feedback from users of the data collection
system from the first year of implementation to inform the development
and improvement of the data collection system. OSHA will incorporate
user experience and design improvements throughout the life of the data
collection system, based on user feedback and emerging technology.
Coverage of Industries in Sec.  1904.41(a)(2)
    Section 1904.41(a)(2) of the proposed rule would have required
establishments with 20 or more employees, but fewer than 250 employees,
in designated industries, to electronically submit information from the
300A annual summary to OSHA or OSHA's designee on an annual basis. The
list of designated industries subject to the annual submission
requirement in proposed Sec.  1904.41(a)(2) was included in proposed
appendix A to subpart E. The designated industries in proposed Appendix
A to Subpart E represented all industries covered by part 1904 with a
2009 DART rate in the BLS SOII of 2.0 or greater, excluding four
selected transit industries where local government is a major employer.
    In the preamble to the proposed rule, OSHA asked, ``More current
BLS injury and illness data will be available at the time of the final
rulemaking. Use of newer data may result in changes to the proposed
industry coverage. Should OSHA use the most current data available in
determining coverage for its final rule? Would this leave affected
entities without proper notice and the opportunity to provide
substantive comment?'' [78 FR 67271].
    OSHA received several comments related to this question. Two
commenters supported using 2009 BLS injury and illness data for
determining coverage for high-hazard industries under the final rule,
on grounds that more current data would leave affected entities without
proper notice and the opportunity to provide comment (Exs. 1206, 1329).
One commenter, the California Department of Industrial Relations (DIR),
Office of the Director, recommended ``ways of increasing the stability
of the system, namely, not changing industries required to report, not
using a phased in approach to reporting, and encouraging use of data
through a successful data sharing Web site'' (Ex. 1395). The
International Brotherhood of Teamsters supported using the most current
data available for determining coverage in the final rule, commenting
that ``[w]e recommend that OSHA use the latest BLS data. The results of
the Survey of Occupational Injuries and Illnesses (SOII) are one year
behind, but they may point to emerging or immediate hazards'' (Ex.
1381). Another commenter supported OSHA's use of the most current BLS
data available for determining coverage, and stated that OSHA should be
able to use the new data without needing a new round of notice and
comment because it discussed this possibility in the proposed rule.
This commenter also commented that it would be counterproductive to
limit OSHA to the BLS data available at the time of the proposed rule
(Ex. 1211).
    OSHA also received a comment from the National Automobile Dealers
Association (NADA) stating that ``OSHA should drop the proposal's use
of a one

year (2009) DART rate. Focusing on a single year risks
mischaracterizing the injury and illness rates for a given industry
and/or capturing an uncharacteristic decline or spike. A more
appropriate approach would be a rolling three year average similar to
what OSHA has used to periodically set partial exemptions from its
injury/illness recording mandates. Of course, any reporting mandate
should reset annually for each industry sector based on a three-year
average of its most current BLS SOII data'' (Ex. 1392).