submission requirement in final Sec.  1904.41(a)(2). By setting the
threshold at 100 or more employees and limiting the covered industries
to the higher hazard industries listed in final appendix B to subpart
E, the agency is focusing its data collection efforts in a more
targeted manner. This approach is consistent with OSHA's stated
intention in the preamble to the proposed rule to balance the utility
of the information collection for enforcement, outreach, and research,
on the one hand, and the burden on employers to provide the information
to OSHA, on the other hand.
    Accordingly, like the proposed rule, final Sec.  1904.41(a)(2)
requires establishments with 100 or more employees that are in the
designated industries listed in appendix B to subpart E to
electronically submit data from their 300 and 301 forms to OSHA once a
year.
b. The Criteria for Determining the Industries in Appendix B to Subpart
E
    As stated above, OSHA proposed to require establishments with 100
or more employees at any time during the previous calendar year to
annually submit their Form 300 and 301 if they are in an industry
listed in proposed appendix B to subpart E. The criteria for including
the designated industries in proposed appendix B to subpart E was based
on a three-year average rate of Total Case Rate (TCR) in the BLS SOII
for 2017, 2018, and 2019, of at least 3.5 cases per 100 full-time-
employees. In the preamble to the proposed rule, OSHA requested comment
on whether TCR is the appropriate method for determining the list of
industries in proposed appendix B to subpart E. In addition, OSHA
specifically asked, ``Is Total Case Rate (TCR) the most appropriate
incidence rate to use for proposed appendix B to subpart E, or would
the Days Away Restricted or Transferred (DART) rate be more
appropriate?'' (87 FR 18546).
    The TCR represents the number of work-related injuries and
illnesses per 100 full-time-employees during a one-year period. It is
based on all work-related injuries and illnesses recorded on the OSHA
300 Log resulting in death, days away from work, work restriction or
transfer to another job, and other

recorded cases (e.g., cases resulting in medical treatment beyond first
aid). On the other hand, the DART rate is based only on the number of
work-related injuries and illnesses recorded on the OSHA 300 Log
resulting in days away from work, restricted work activity or transfer
to another job.
    A number of commenters opined on the appropriate criteria for
determining the industries designated in appendix B to Subpart E. Many
of these commenters supported the proposed use of the TCR (e.g., Docket
IDs 0030, 0040, 0047, 0048, 0054, 0064, 0066, 0084, 0089). For example,
AIHA indicated its support for using the TCR in the final rule, adding
that, ``All incident rate metrics suffer from inaccuracy due to a lack
of understanding of complex and intricately nuanced recording rules.
The TCR is the most widely used and least misunderstood of these
measures in the United States'' (Docket ID 0030). Also, the National
Nurses Union stated that TCR is a more appropriate metric than a DART-
rate-only metric because it includes all types of recorded injuries and
illnesses, not just those where an employer gave an injured or ill
employee ``time to rest and recover'' (Docket ID 0064).
    Other commenters argued against OSHA's proposed use of the TCR and
for the use of a DART-rate metric. For example, the International
Bottled Water Association (IBWA) and the Coalition asserted that, per
OSHA's preamble, ``[a]ppendix B is meant to reflect employers in higher
hazard industries. While a higher DART may reflect such industries to
some extent, a higher TCR does not. This is because the TCR captures
relatively minor incidents--those that do not result in days away from
work, job restriction, or transfer'' (Docket IDs 0076, 0087). Both of
these commenters expressed concern that ``for example, under the
proposal, employers in industries with very few or no 'major' incidents
(i.e., those that result in days away from work, job restriction, or
transfer), but a larger number of 'minor' incidents will unfairly be
included in [a]ppendix B'' (Docket IDs 0076, 0087). On the other hand,
other commenters, such as AIHA, argued against the use of the DART rate
(Docket ID 0030).
    Other commenters suggested other possible metrics in their
comments. For example, NIOSH commented, ``TCR may be the most
appropriate single criterion for selection of industries; however,
NIOSH believes that DART (Days Away, Restricted, or Transferred) and
fatality rates are also valuable for determining the magnitude of
injury risks in specific industries. There are two basic reasons why
some industries would rank differently based on TCR than they would on
DART or fatality rate. First, the nature of work differs among
industries and can result in different ratios of mild to severe
injuries. While the TCR represents mostly relatively mild injuries, the
severest injuries are the most important targets of prevention and
account for a very large share of the costs of injuries in the workers'
compensation system. Second, some industries may more fully report
injuries than others and so tend to have a higher ratio of TCR to DART
or fatality rate.'' (Docket ID 0035, Attachment 2). The International
Brotherhood of Teamsters concurred with NIOSH's comment (Docket ID
0083). AIHA offered a fourth possible metric: cases with days away,
observing, ``One other candidate, cases with days away, is perhaps the
most intuitive metric and most closely (though not exactly) aligned
with workers' compensation systems'' (Docket ID 0030).
    Finally, AFL-CIO ``urge[d] OSHA to require all large establishments
with 100 or more employees, currently subject to recordkeeping
standards, to electronically report detailed injury and illness
information . . . as the value of these data has been thoroughly
explained by the agency and record of evidence in the 2016 final rule''
(Docket ID 0061). In other words, AFL-CIO asked OSHA to revise the
proposed provision to eliminate the requirement that only those
establishments in industries listed in appendix B would be required to
report. In AFL-CIO's recommendation, the only limitations would be
establishment size and being routinely required to keep injury and
illness records under part 1904.
    Having reviewed the information in the record, OSHA rejects AFL-
CIO's suggestion to require all large establishments with 100 or more
employees (without regard to industry hazardousness) to submit
information. In the provisions related to the electronic submission of
Forms 300 and 301, OSHA has decided that it is appropriate to focus on
the most hazardous industries. Such a focus is a regular feature of
OSHA's recordkeeping regulations. For example, since 1982, OSHA has
exempted some low-hazard industries from maintaining injury and illness
records on a regular basis (see https://www.osha.gov/enforcement/directives/cpl-02-00-135). This partial exemption for low-hazard
industries currently appears in 29 CFR 1904.2. Similarly, since the
2016 final rule, OSHA has only required establishments with 20 or more
employees but fewer than 250 employees to submit information from Form
300A if those establishments are classified in an industry listed in
appendix A to subpart E to part 1904, i.e., if they are higher hazard
industries.
    Focusing some recordkeeping requirements on higher hazard
industries has the benefit of enabling OSHA to better focus its
attention where it might have the highest impact, and lessens the
burden on less hazardous industries. OSHA finds that such a balance is
appropriate. Moreover, the agency will continue receiving information
from Form 300A from all recordkeeping establishments with 250 or more
employees. If the information from submitting establishments' Forms
300A, or from the BLS SOII and/or Census of Fatal Occupational Injuries
(CFOI), were to indicate that industries not listed on appendix B were
becoming more hazardous, OSHA could consider engaging in notice-and-
comment rulemaking to update appendix B. Further discussion on the
possibility of updating appendix B appears below in this section of the
Summary and Explanation.
    As to the appropriate criteria, OSHA has decided to use several
data sources to populate the list of higher hazard industries in final
appendix B to subpart E. Specifically, OSHA finds that the TCR, the
DART rate, and the fatality rate are all important methods of
identifying higher hazard industries. As noted by some commenters,
while it is widely used in the United States and includes all types of
recorded injuries and illnesses, the TCR also includes data concerning
less severe injuries and illnesses (i.e., cases that resulted in
medical treatment beyond first aid but did not involve loss of
consciousness and/or did not result in restricted work or transfer to
another job, days away from work, or death). OSHA still considers the
TCR to be an appropriate rate to use for determining the list of
industries in appendix B to subpart E, especially since covered
establishments will be required to electronically submit information to
OSHA on all their recordable cases (i.e., total cases). However, OSHA
also agrees with commenters who suggested that information specifically
about severe injuries and illnesses is a reliable indication of whether
a specific industry is a high hazard industry. As NIOSH noted, the
nature of work differs among industries, and this can result in
different ratios of less severe and more severe injuries and illnesses.
    Accordingly, OSHA has decided to use the DART rate and the fatality
rate in the BLS CFOI in addition to the TCR.

Adding the DART rate, which measures severe injuries and illnesses
resulting in days away from work, restricted work activity, or transfer
to another job, will ensure that industries with higher rates of severe
injuries are included, while using the TCR will ensure that OSHA is
capturing industries with higher injury and illness rates overall
(including less severe injuries and illnesses and, as discussed by NNU,
more serious injuries and illnesses in establishments where an employer
does not give the injured or ill employee ``time to rest and recover'')
(see Docket ID 0084).
    Adding the fatality rate will also be helpful because fatalities
are more consistently reported than other injuries and illnesses. CFOI
produces comprehensive counts of workplace fatalities in the United
States. It is a Federal-State cooperative program that has been
implemented in all 50 States and the District of Columbia since 1992.
To compile counts that are as complete and accurate as possible, the
census uses multiple sources to identify, verify, and profile fatal
worker injuries. CFOI includes specific information about each
workplace fatality, including information about occupation and other
worker characteristics, equipment involved, and circumstances of the
event. All of the information in the CFOI is obtained by cross-
referencing the source records, such as death certificates, workers'
compensation reports, and Federal and State agency administrative
reports. To ensure that fatalities are work-related, cases are
substantiated with two or more independent source documents, or a
source document and a follow-up questionnaire. The CFOI fatality rate
is based on the number of deaths per 100,000 full-time-or-equivalent
employees. Adding the fatality rate from CFOI to the metrics used to
determine which industries should report in this final rule allows OSHA
to obtain data from industries with low non-fatal injury and illness
rates but high fatality rates.
    OSHA does not think that the metric offered by AIHA (cases with
days away, or DAFW) is appropriate for this rulemaking. The DAFW rate
is a subset of the DART rate. It does not include cases in which an ill
or injured employee continues to work but is engaged in restricted
activities or job transfer. This is obviously more possible in some
establishments and industries than in others. For example, there might
be no alternative for restricted work or job transfer at a nursing care
facility for a patient-care worker who is unable to perform their
regular job duties due to an injury; thus, the injury would result in a
DAFW case. In contrast, it might be possible to temporarily reassign an
injured production-line worker to a different job on the production
line that accounts for the restrictions due to the injury; thus, the
injury would not result in a DAFW case. However, both injuries--the
days away from work case, as well as the restricted activities/job
transfer case--would be DART cases. Thus, the DART rate is a better
indicator of hazardousness across establishments and industries.
    Given the concerns raised by commenters about specific injury and
illness rates, and in order to accurately identify higher hazard
industries, OSHA decided to use several factors in determining the list
of industries in final appendix B to subpart E. In addition to using
the TCR, OSHA analyzed industry hazardousness based on the DART rate
and the fatality rate. OSHA believes that using this approach more
comprehensively identifies higher hazard industries. The agency also
finds that this combination of factors furthers the agency's intention
of balancing the number of establishments covered and injury and
illness cases reported with the burden on employers, as well as not
expanding the submission requirement beyond establishments that are
already required to report information from the Form 300A. OSHA again
notes that all of the industries in final appendix B to subpart E are
also included in final appendix A to subpart E.
c. Cut-Off Rates for Determining the Industries in Appendix B to
Subpart E
    Having determined the appropriate metrics (TCR, DART, and fatality
rates), OSHA now turns to the appropriate cut-off rates for selecting
the designated industries in appendix B to subpart E using the chosen
metrics. As discussed above, OSHA proposed including those industries
which had a 3-year-average rate of total recordable cases (Total Case
Rate, or TCR) in the BLS SOII for 2017, 2018, and 2019, of at least 3.5
cases per 100 full-time-equivalent employees. Some commenters argued
that the proposed cut-off (3.5 per 100 workers) was too low (e.g.,
Docket IDs 0054, 0076, 0087). For example, the Employers E-
Recordkeeping Coalition (``Coalition'') argued that, whether the DART
or TCR rate is used, ``OSHA should establish a higher threshold value
than it proposes.'' The Coalition explained that the proposed threshold
TCR value of 3.5 was based on BLS SOII data for 2017, 2018, and 2019,
but that ``BLS data--specifically data representing the highest rates
for cases with days away from work, restricted work activity, or job
transfer (DART)--from the same time period (2017, 2018, 2019)
demonstrates that the lowest incidence rate was 4.2.'' It further
observed, ``Similarly, even if use of the TCR for purposes of
determining those industries that should be included in [a]ppendix B is
maintained in the final rule, a higher threshold value should be used.
According to BLS data representing highest rates for total cases from
the same time period (2017, 2018, 2019), the lowest incidence rate was
6.8. . . Accordingly, to the extent the TCR is used for purposes of
determining those industries that should be included in [a]ppendix B,
the threshold value should be set at no less than 6.8. '' (Docket ID
0087). IBWA submitted a similar comment (Docket ID 0076). Additionally,
Dow Chemical Company argued that OSHA should use a TCR ``triggering''
rate that is substantially higher than the private industry average for
full time equivalent workers (which was 2.8 in 2019 and 2.7 in 2020).
Dow explained, ``This will reduce the burden on industry sectors who
have a TCR at or below private industry average'' (Docket ID 0054).
    Other commenters suggested that the proposed cut-off of 3.5 was too
high (e.g., Docket IDs 0037, 0047, 0048, 0049, 0066, 0069, 0079, 0084).
Several commenters urged OSHA to include more industries in appendix B
by lowering the cut-off to the three-year national average for private
industry. These commenters expressed concern about many hazardous
workplaces and high-risk occupations in industries that are above the
national average for private industry but below the proposed 3.5 cut-
off, including many industries with establishments operated by the
nation's major employers (Docket IDs 0030, 0047, 0048, 0049, 0066,
0069, 0084). For example, the Strategic Organizing Center (SOC)
``applaud[ed] OSHA's decision to lower the employment threshold for
report[ing] the 300/301 data . . . [but] urge[d] OSHA to reject the use
of such a high rate threshold for the inclusion of the specific
industry codes'' (Docket ID0079). In support of this recommendation,
SOC argued that OSHA had not justified the proposed TCR level other
than projecting that it would result in a volume of cases (roughly
750,000) similar to the 2016 rule (Docket ID 0079).
    With regard to the appropriate value for triggering the inclusion
of industries in appendix B to subpart E, the final rule, like the
proposed rule, has a cut-off of 3.5 cases per 100 employees. As
reflected in the comments, the 3.5 cut-off value, which OSHA proposed,
represents a balance between more

information and more employer burden with a lower cut-off, and less
information and less employer burden with a higher cut-off. For
example, the cut-offs suggested by the Employers E-Recordkeeping
Coalition in their comment (Docket ID 0087) would only result in the
submission of an estimated 90,395 cases from 3,087 establishments
(using the 6.8 TCR rate taken from BLS table 19SNR01 ``Highest
incidence rates of total nonfatal occupational injury and illness
cases'', 2019) or an estimated 72,143 cases from 3,946 establishments
(using the 4.2 DART rate taken from BLS table 19SNR02 ``Highest
incidence rates of nonfatal occupational injury and illness cases with
days away from work, restricted work activity, or job transfer'',
2019).\4\ The Coalition's proposal would severely restrict the list of
industries which would be required to submit data pursuant to this
rulemaking, which would, in turn, restrict OSHA's ability to target its
enforcement and compliance assistance efforts beyond that small subset
of industries. It would also limit the information available to
interested parties for occupational safety and health purposes, e.g.,
to evaluate occupational safety and health trends and patterns.
Consequently, it would drastically decrease the benefits of the rule.
---------------------------------------------------------------------------

    \4\ See https://www.bls.gov/iif/nonfatal-injuries-and-illnesses-tables/soii-summary-historical/supplemental-table-1-2019-national.xlsx for the TCR table and https://www.bls.gov/iif/nonfatal-injuries-and-illnesses-tables/soii-summary-historical/supplemental-table-2-2019-national.xlsx for the DART table.
---------------------------------------------------------------------------

    In addition, for this final rule, OSHA has chosen to use a DART
rate of 2.25 per 100 employees and CFOI fatality rate of 5.7 deaths per
100,000 full-time-or-equivalent employees) to identify higher hazard
industries. Both represent 1.5 times the national average for private
industry for the respective rates. OSHA believes that these thresholds,
which are well above the national averages for private industry,
represent an appropriate cut-off for determining whether a given
industry is a higher hazard industry. As discussed below, adding the
DART criterion and the CFOI fatality criterion adds 6 industries to
Appendix B (3 per criterion) that are below the TCR threshold; this
addresses, to some degree, the concerns expressed by commenters about
hazardous workplaces that are below the TCR threshold.
    Moreover, OSHA projects that the use of these cutoffs will enable
it to receive Form 300 and 301 data on approximately 750,000 cases of
injuries and illnesses per year. Based on the record of the 2016
rulemaking, OSHA determined that roughly this amount of cases would
provide OSHA and others with sufficient information to make workplaces
safer, while not overburdening employers (see 87 FR 18543). Nothing in
the record of this rulemaking, or the comments OSHA had received in the
2019 rulemaking, has convinced OSHA that a different balance should be
struck in this rule. However, as discussed above, the agency has
tailored the collection to industries and establishments where the
information would be most useful for improving workplace safety and
health.
    OSHA only proposed including industries in appendix B if they also
appeared in appendix A; establishments with 20 or more employees in
industries in appendix A have already been required to electronically
submit information from their Form 300A since 2017. OSHA did not
receive any comments objecting to this part of the proposal and has
decided to retain this requirement in the final rule. However, several
interested parties argued that additional appendix A industries should
be listed in appendix B.
    For example, the AFL-CIO commented that the proposed exclusion for
large establishments in certain industries from appendix B, ``which
further limits the ability to identify trends among workplace hazards
in high risk industries,'' means that a significant number of
industries will not be required to electronically submit OSHA Form 300
and 301 data to OSHA, including all of the utility sectors and almost
all of the construction industry[,]'' as well as a number of other
industries with large establishments (Docket ID 0061). The
Communications Workers of America commented that appendix B, like
appendix A, should include all industries in the manufacturing sector
(Docket ID 0092). SOC similarly characterized OSHA's proposal to limit
the requirement to submit Forms 300 and 301 to industries with a TCR of
at least 3.5 as a decision to ``arbitrarily exclude entire hazardous
industries from the revised reporting requirement.'' In particular, SOC
objected to the exclusion of the hotel industry, which, based on an
analysis by the National Employment Law Project, SOC believes is a high
hazard industry (Docket ID 0079).
    The AFL-CIO also commented that the industry exclusions from
appendix B should not be based on BLS SOII data, because the data are
an inadequate measure of industry hazardousness. It argued that SOII
data, even recent three-year averages, is not an effective way to
ensure that high-hazard industries are captured consistently in the
data. The AFL-CIO further asserted that, ``[R]elying on these data to
create exclusion criteria ignores the known limitations of current
workplace injury and illnesses data. Over the last decade, studies have
documented that the BLS injury and illness survey fails to capture an
estimated 33-69% of work-related injuries. Some of the undercount has
been attributed to injuries and illnesses excluded from the BLS
survey's scope and the design of the survey.'' (Docket ID 0061).
    In response, OSHA notes that there is no express exemption for
specific industries in appendix B to subpart E. The list of industries
in final appendix B is based on objective injury and illness data
indicating that a specific industry is a higher hazard industry. Any
exclusion or omission from the list of designated industries in final
appendix B is solely the result of a given industry not meeting the
higher hazard industry criteria specified above, criteria which have
been expanded under this final rule based on public comments. Moreover,
OSHA disagrees with SOC's characterization of its preliminary decisions
regarding the industries included on appendix B as ``arbitrar[y]''
(Docket ID 0079). As stated throughout the preamble to this final rule,
in proposing a higher hazard cut-off level, the agency was seeking to
balance the utility of the information collection for enforcement,
outreach, and research, on the one hand, with the burden on
establishments on the other. That is not to say that the agency found
that it would be economically infeasible for industries other than
those listed on proposed or final appendix B to submit their Form 300
or 301 data. Indeed, no such finding is required here. Rather, OSHA
looked to see what amount of information would be useful, considering
the number of establishments that would be reporting under the final
rule, the number of cases that would be submitted, the agency's
capacity to review such information, and the benefits that would stem
from the collection. The agency has determined that at the current
time, requiring larger, high hazard establishments to submit their data
can make a substantial impact on worker safety and health, and the
benefits of making other employers do so as well is less certain. OSHA
has decided to focus the rule on the establishments in industries in
which additional information has the most promise of addressing serious
workplace hazards. Further, OSHA notes that it will continue to receive
300A data from very large establishments (those with 250 or

more employees) in all industries required to keep records under part
1904 and can continue to use those data for targeting purposes as well.
OSHA will monitor the data it receives, and in the future, it may
consider new notice-and-comment rulemaking to adjust its approach in
light of its experience with the data collected under this final rule.
    In addition, OSHA disagrees with the comment from the AFL-CIO that
BLS SOII data are not a reliable method for measuring industry
hazardousness. While BLS and its research partners have conducted
multiple studies which indicate that SOII fails to capture some cases,
the BLS SOII is an important indicator of occupational safety and
health and is the only source of national-level data on nonfatal
injuries and illnesses that spans the private sector and State and
local governments. Accordingly, OSHA is not making any adjustments to
the proposed appendix B industries based on these comments. However, as
discussed in more detail below, OSHA notes that the application of the
updated criteria for inclusion on appendix B has led to six new
industries being added to appendix B. These industries include NAICS
1133, Logging, NAICS 4853, Taxi and Limousine Services, and NAICS 4889,
Other Support Activities for Transportation--all industries that AFL-
CIO identified as industries with large establishments not included in
proposed appendix B that ``should be required to submit the injury and
illness data they are already required to collect'' (Docket ID 0061).
Consequently, the final rule responds to AFL-CIO's comment in part by
adding three additional NAICS codes based on the objective criteria in
this final rule.
d. Using the Most Current Data To Determine Designated Industries
    In the preamble to the proposed rule, OSHA stated that the agency
anticipated that more current industry-level injury and illness data
from BLS, as well as more establishment-specific injury and illness
information from the ITA, would become available. OSHA therefore
explained that the agency may rely on the most current data available,
as appropriate, for determining the list of industries in appendix B to
subpart E. OSHA sought comment from the public on whether the agency
should use the most current data when developing the final rule (see 87
FR 18543).
    The Phylmar Regulatory Roundtable (PRR) Occupational Safety and
Health, OSH Forum commented that while it agrees with the concept that
the most up-to-date information is the most accurate and should
determine the list of industries, OSHA should not include any new
industries in appendix B to subpart E in the final rule. According to
this commenter, doing so would not allow impacted industries the
opportunity to comment on such significant changes. Also, PRR
recommended that any additions to the list of industries (or sub-sets
of industries) in appendix B that result from OSHA analyzing updated
data should be conducted through notice and comment rulemaking (Docket
ID 0094).
    In response, OSHA agrees with PRR that the list of higher hazard
industries in appendix B to subpart E should be based on data that was
available at the time of the proposed rule. OSHA notes that, although
the criteria used for determining the list of higher hazard industries
in appendix B has been modified for the final rule, all of the data
used to develop those criteria were available at the time of the
proposed rule. Specifically, the cut-off threshold used for the TCR
rate is based on a 3-year-average from 2017, 2018, and 2019, the cut-
off threshold for the DART rate is based on a 3-year-average from 2017,
2018, and 2019, and the cut-off threshold for the fatality rate is
based on data from 2019.
    Additionally, in the preamble to the proposed rule, OSHA stated
that during the 2016 rulemaking, the agency agreed with commenters who
stated that the list of designated industries (listed in appendix A at
that time) should not be updated each year. OSHA explained that moving
industries in and out of the appendix each year would be confusing.
OSHA also stated that keeping the same industries in the appendix each
year would increase the stability of the system and reduce uncertainty
for employers. Accordingly, OSHA did not, as part of the 2016
rulemaking, include a requirement to annually or periodically adjust
the list of designated industries to reflect more recent BLS injury and
illness data. OSHA also committed that any such revision to the list of
designated industries in the future would require additional notice and
comment rulemaking (see 87 FR 29641). However, OSHA again raised the
issue of periodic updating of the designated industries in appendix B
to subpart E in the preamble to the proposed rule in this rulemaking
(see 87 FR 18543). Specifically, in Alternative #2, OSHA explained the
above information regarding its decision in the 2016 rulemaking,
explained that it ``could regularly update the list of designated
industries in proposed appendix B (industries where establishments with
100 or more employees must submit information from the Form 300 and 301
as well as the 300A)--for example, every 6 years, to align with the PRA
approval periods,'' and then welcomed comment on this issue (87 FR
18543).
    OSHA received several comments on this issue. In its comments, Dow
stated that it did not support the regular updating of the list of
designated industries proposed in appendix B. Dow argued, ``Revising
this list and moving employers in and out would be extremely confusing
and introduce unneeded instability into the data collection process. If
the list of designated industries in appendix B were to be revised,
OSHA must provide notice and a rulemaking comment period'' (Docket ID
0054). In contrast, PRR commented that, if OSHA's assumption that the
collection of establishment-specific data will reduce injury and
illness rates, then the agency should be able to analyze data for the
designated industries and consider updating and removing industries
from the appendices (Docket ID 0094).
    OSHA agrees with the comments stating that the list of designated
industries in appendix B to subpart E should not be updated on a
regular basis. As in the 2016 rulemaking, OSHA finds that moving
industries in and out of appendix B to subpart E on a periodic basis
would be confusing for employers. Employers are less likely to
encounter confusion when trying to determine whether their
establishments are required to electronically submit data to OSHA if
the list of industries in appendix B remains stable; appropriate future
adjustments, if any, would be accomplished through notice and comment
rulemaking. OSHA also believes that keeping the same industries in
appendix B to subpart E will increase the stability of the electronic
submission system and increase compliance with the submission
requirement. Accordingly, OSHA will not, as part of this rulemaking,
include a provision for the regular or periodic updating of the list of
industries in appendix B to subpart E.
    In making this decision, OSHA acknowledges that industries' injury
and illness rates may change. As PRR commented, OSHA expects that this
rulemaking will aid in the decrease in such rates. If OSHA's ongoing
analyses of injury and illness rates show a decrease in injuries and
illnesses in particular industries included on appendix B, then OSHA
may consider removing those industries from appendix B. Similarly, if
OSHA learns that injury and illness rates in industries that are not
included on appendix B are

rising, then OSHA may consider adding those industries to appendix B.
However, in either case, OSHA would propose any such change via notice-
and-comment rulemaking, in part to obviate the confusion mentioned
above.
e. Industries Included in Final Appendix B After Applying the Final
Criteria, Cut-Off Rates, and Data Sources
    Based on the above decisions, final appendix B to subpart E of part
1904 includes industries that:
    1. had a 3-year-average rate of total recordable cases (Total Case
Rate, or TCR) in the BLS SOII for 2017, 2018, and 2019, of at least 3.5
cases per 100 full-time-equivalent employees, OR
    2. had a 3-year-average DART rate in the BLS SOII for 2017, 2018,
and 2019 of at least 2.25 cases per 100 full-time-equivalent employees,
OR
    3. had a fatality rate in the BLS Census of Fatal Occupational
Injuries (CFOI) of at least 5.7 deaths per 100,000 full-time-equivalent
employees, AND
    4. are included in appendix A to subpart E. (All of the industries
in appendix B are also in appendix A.)
    No industries were removed from appendix B based on these criteria.
However, six new industries have been added to appendix B. The new
industries are:
     NAICS 1133--Logging (2019 fatality rate of 47.6),
     NAICS 1142--Hunting and Trapping (three-year average DART
rate of 3.1),
     NAICS 3379--Other Furniture Related Product Manufacturing
(three-year average DART rate of 2.27),
     NAICS 4239--Miscellaneous Durable Goods Merchant
Wholesalers (2019 fatality rate of 15.6),
     NAICS 4853--Taxi and Limousine Service (2019 fatality rate
of 6.9), and
     NAICS 4889--Other Support Activities for Transportation
(three-year average DART rate of 2.4).
    The application of the criteria and cut-offs to each industry that
was added to appendix B is summarized in the following table:

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

    All of the establishments with 100 or more employees in these newly
included industries are also included in appendix A to subpart E, and,
therefore, have been required to electronically submit data from their
300A to OSHA once a year since January 1, 2017. Because of their
inclusion in appendix A, OSHA finds that each of these newly included
industries should have been aware of this rulemaking. Moreover, in the
preamble to the proposed rule, OSHA specifically indicated that the
criteria for determining higher hazard industries might be modified for
the final rule (indeed, OSHA asked for comment on this issue (see,
e.g., 87 FR 18543, 18546)). Consequently, OSHA finds that the proposal
placed all six of the newly added industries on notice that they could
be included in appendix B in this final rule and, thus, these
industries had an opportunity to comment on issues related to that
determination.
    In the proposed rule, OSHA stated that it was proposing one
exception to these criteria, for the United States Postal Service
(USPS), which is the only employer in NAICS 4911 Postal Service. OSHA
explained BLS does not include USPS in the SOII. However, under the
Postal Employees Safety Enhancement Act (Pub. L. 105-241), OSHA treats
the USPS as a private sector employer for purposes of occupational
safety and health, and establishments in NAICS 4911 (i.e., USPS
establishments) with 20 or more employees are currently required to
electronically submit Form 300A information to OSHA. Using the 2017,
2018, and 2019 data submitted by USPS, OSHA calculated a TCR of 7.5 for
NAICS 4911. Because this TCR is greater than the proposed 3.5 criterion
for designated industries in proposed appendix B, OSHA included NAICS
4911 in proposed appendix B to subpart E. In so doing, OSHA noted that
NAICS 4911 was also included in both current and proposed appendix A to
subpart E (87 FR 18543).
    OSHA did not receive any comments from interested parties regarding
the proposed inclusion of USPS in appendix B. Due to the lack of an
objection to its inclusion and USPS's high TCR level (as calculated by
OSHA), the agency has decided to include USPS in the final version of
appendix B.
    The final appendix B to subpart E is as follows:

------------------------------------------------------------------------
           NAICS                               Industry
------------------------------------------------------------------------
1111.......................  Oilseed and Grain Farming.
1112.......................  Vegetable and Melon Farming.
1113.......................  Fruit and Tree Nut Farming.
1114.......................  Greenhouse, Nursery, and Floriculture
                              Production.
1119.......................  Other Crop Farming.
1121.......................  Cattle Ranching and Farming.
1122.......................  Hog and Pig Farming.
1123.......................  Poultry and Egg Production.
1129.......................  Other Animal Production.
1133.......................  Logging.
1141.......................  Fishing.
1142.......................  Hunting and Trapping.
1151.......................  Support Activities for Crop Production.
1152.......................  Support Activities for Animal Production.

1153.......................  Support Activities for Forestry.
2213.......................  Water, Sewage and Other Systems.
2381.......................  Foundation, Structure, and Building
                              Exterior Contractors.
3111.......................  Animal Food Manufacturing.
3113.......................  Sugar and Confectionery Product
                              Manufacturing.
3114.......................  Fruit and Vegetable Preserving and
                              Specialty Food Manufacturing.
3115.......................  Dairy Product Manufacturing.
3116.......................  Animal Slaughtering and Processing.
3117.......................  Seafood Product Preparation and Packaging.
3118.......................  Bakeries and Tortilla Manufacturing.
3119.......................  Other Food Manufacturing.
3121.......................  Beverage Manufacturing.
3161.......................  Leather and Hide Tanning and Finishing.
3162.......................  Footwear Manufacturing.
3211.......................  Sawmills and Wood Preservation.
3212.......................  Veneer, Plywood, and Engineered Wood
                              Product Manufacturing.
3219.......................  Other Wood Product Manufacturing.
3261.......................  Plastics Product Manufacturing.
3262.......................  Rubber Product Manufacturing.
3271.......................  Clay Product and Refractory Manufacturing.
3272.......................  Glass and Glass Product Manufacturing.
3273.......................  Cement and Concrete Product Manufacturing.
3279.......................  Other Nonmetallic Mineral Product
                              Manufacturing.
3312.......................  Steel Product Manufacturing from Purchased
                              Steel.
3314.......................  Nonferrous Metal (except Aluminum)
                              Production and Processing.
3315.......................  Foundries.
3321.......................  Forging and Stamping.
3323.......................  Architectural and Structural Metals
                              Manufacturing.
3324.......................  Boiler, Tank, and Shipping Container
                              Manufacturing.
3325.......................  Hardware Manufacturing.
3326.......................  Spring and Wire Product Manufacturing.
3327.......................  Machine Shops; Turned Product; and Screw,
                              Nut, and Bolt Manufacturing.
3328.......................  Coating, Engraving, Heat Treating, and
                              Allied Activities.
3331.......................  Agriculture, Construction, and Mining
                              Machinery Manufacturing.
3335.......................  Metalworking Machinery Manufacturing.
3361.......................  Motor Vehicle Manufacturing.
3362.......................  Motor Vehicle Body and Trailer
                              Manufacturing.
3363.......................  Motor Vehicle Parts Manufacturing.
3366.......................  Ship and Boat Building.
3371.......................  Household and Institutional Furniture and
                              Kitchen Cabinet Manufacturing.
3372.......................  Office Furniture (including Fixtures)
                              Manufacturing.
3379.......................  Other Furniture Related Product
                              Manufacturing.
4231.......................  Motor Vehicle and Motor Vehicle Parts and
                              Supplies Merchant Wholesalers.
4233.......................  Lumber and Other Construction Materials
                              Merchant Wholesalers.
4235.......................  Metal and Mineral (except Petroleum)
                              Merchant Wholesalers.
4239.......................  Miscellaneous Durable Goods Merchant
                              Wholesalers.
4244.......................  Grocery and Related Product Merchant
                              Wholesalers.
4248.......................  Beer, Wine, and Distilled Alcoholic
                              Beverage Merchant Wholesalers.
4413.......................  Automotive Parts, Accessories, and Tire
                              Stores.
4422.......................  Home Furnishings Stores.
4441.......................  Building Material and Supplies Dealers.
4442.......................  Lawn and Garden Equipment and Supplies
                              Stores.
4451.......................  Grocery Stores.
4522.......................  Department Stores.
4523.......................  General Merchandise Stores, including
                              Warehouse Clubs and Supercenters.
4533.......................  Used Merchandise Stores.
4543.......................  Direct Selling Establishments.
4811.......................  Scheduled Air Transportation.
4841.......................  General Freight Trucking.
4842.......................  Specialized Freight Trucking.
4851.......................  Urban Transit Systems.
4852.......................  Interurban and Rural Bus Transportation.
4853.......................  Taxi and Limousine Service.
4854.......................  School and Employee Bus Transportation.
4859.......................  Other Transit and Ground Passenger
                              Transportation.
4871.......................  Scenic and Sightseeing Transportation,
                              Land.
4881.......................  Support Activities for Air Transportation.
4883.......................  Support Activities for Water
                              Transportation.
4889.......................  Other Support Activities for
                              Transportation.
4911.......................  Postal Service.
4921.......................  Couriers and Express Delivery Services.
4931.......................  Warehousing and Storage.
5322.......................  Consumer Goods Rental.
5621.......................  Waste Collection.

5622.......................  Waste Treatment and Disposal.
6219.......................  Other Ambulatory Health Care Services.
6221.......................  General Medical and Surgical Hospitals.
6222.......................  Psychiatric and Substance Abuse Hospitals.
6223.......................  Specialty (except Psychiatric and Substance
                              Abuse) Hospitals.
6231.......................  Nursing Care Facilities (Skilled Nursing
                              Facilities).
6232.......................  Residential Intellectual and Developmental
                              Disability, Mental Health, and Substance
                              Abuse Facilities.
6233.......................  Continuing Care Retirement Communities and
                              Assisted Living Facilities for the
                              Elderly.
6239.......................  Other Residential Care Facilities.
6243.......................  Vocational Rehabilitation Services.
7111.......................  Performing Arts Companies.
7112.......................  Spectator Sports.
7131.......................  Amusement Parks and Arcades.
7211.......................  Traveler Accommodation.
7212.......................  RV (Recreational Vehicle) Parks and
                              Recreational Camps.
7223.......................  Special Food Services.
------------------------------------------------------------------------

2. Information To Be Submitted
    Section 1904.41(b)(9) of the final rule specifies which information
must be submitted under Sec.  1904.41(a)(2). Consequently, comments on
the proposed information to be submitted and OSHA's responses to those
comments are discussed in Section III.D of this Summary and
Explanation, on Sec.  1904.41(b)(9). However, because this summary and
explanation section covers comments on issues that relate to the
information that establishments must submit under Sec.  1904.41(a)(2),
OSHA is briefly previewing those requirements here. Specifically, as
laid out in question-and-answer format in Sec.  1904.41(b)(9),
establishments that are required to submit information under Sec.
1904.41(a)(2) of this section must submit all the information from the
OSHA Forms 300 and 301 except for the following case-specific
information:
     Employee name (column B), from the Log of Work-Related
Injuries and Illnesses (OSHA Form 300).
     Employee name (Field 1), employee address (Field 2), name
of physician or other health care professional (Field 6), and facility
name and address if treatment was given away from the worksite (Field
7) from the Injury and Illness Incident Report (OSHA Form 301).
    Section 1904.41(b)(9) of the final rule is identical to proposed
Sec.  1904.41(b)(9).
3. Publication of Electronic Data
    As discussed above, OSHA intends to make some of the data it
collects public. The publication of specific data elements will in part
be restricted by applicable Federal law, including provisions of the
Freedom of Information Act (FOIA), as well as specific provisions
within part 1904. OSHA will make the following data from Forms 300 and
301 available in a searchable online database:
     Form 300 (the Log)--All collected data fields on the 300
Log will generally be made available on OSHA's website. As specified in
Sec.  1904.41(b)(9), employee names will not be collected. OSHA notes
that it often collects copies of establishments' Forms 300 during
inspections and includes them as part of the enforcement case file.
Prior to this rulemaking, OSHA has not conducted a systematic
collection of the information on the 300 Log. However, OSHA releases
the Forms 300 that it does have (in case files) in response to FOIA
requests, subject to application of the FOIA exemptions. In those
responses, OSHA redacts employee names pursuant to FOIA Exemptions.
     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. As specified in Sec.  1904.41(b)(9), employee name
(Field 1), employee address (Field 2), name of physician or other
health care professional (Field 6), and facility name and address if
treatment was given away from the worksite (Field 7) will not be
collected. OSHA notes that it often collects copies of establishments'
Forms 301 during inspections and includes them as part of the
enforcement case file. Prior to this rulemaking, OSHA has not conducted
a systematic collection of the information on the 301 Incident Report.
However, OSHA releases the forms that it does have in response to FOIA
requests, subject to application of the FOIA exemptions. 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, and OSHA does not
release this information under FOIA. Similarly, OSHA will not publish
establishment-specific data from the left side of Form 301.
    OSHA intends to publish information from the Forms 300 and 301 as
both text-based and coded data. An example of text-based data would be,
``Second degree burns on right forearm from acetylene torch'' in Field
F (``Describe injury or illness, parts of body affected, and object/
substance that directly injured or made person ill'') on the Form 300.
An example of coded data for this case, using the Occupational Injury
and Illness Classification System (OIICS) Manual, would be:

 Nature of injury: 1,520 (heat (thermal) burns, unspecified)
 Part of body affected: 423 (forearm)
 Source of injury or illness: 7,261 (welding, cutting, and blow
torches)
 Event or exposure: 533 (contact with hot objects or
substances)

    For text-based data, as discussed below, OSHA plans to use
automated de-identification technology, supplemented with some manual
review of the data, to identify and remove information that could
reasonably be expected to identify individuals directly from the fields
the agency intends to publish (as discussed above); the agency will not
publish text-based data until such information, if any, has been
identified and removed. For coded data, also as discussed below, OSHA
plans to use an automated coding system to code the collected data;
until the autocoding system has been tested and is in place, OSHA
intends to only use and publish uncoded data. The coded data by its
nature will not include any information which could reasonably be
expected to identify employees directly, and thus there will be no need
to use automated de-identification technology or manual de-
identification before publishing coded data.

4. Benefits of Collecting and Publishing Data From Forms 300 and 301
    As discussed in more detail below, OSHA has determined that this
final rule will improve worker safety and health because the collection
of, and expanded public access to, establishment-specific, case-
specific, injury and illness data from Forms 300 and 301 will allow
OSHA, employers, employees, researchers, safety consultants, and the
general public to use the data in ways that will ultimately result in
the reduction of occupational injuries and illnesses.
    In the preamble to the 2019 final rule, OSHA stated that, because
the agency ``already has systems in place to use the 300A data for
enforcement targeting and compliance assistance without impacting
worker privacy, and because the Form 300 and 301 data would provide
uncertain additional value, the Form 300A data are sufficient for
enforcement targeting and compliance assistance at this time'' (84 FR
392). The uncertainty regarding the extent of the benefits was based,
in part, on the determination that ``[b]ecause . . . publishing the
data would do more harm than good for reasons described more fully
below and in the privacy discussion above, OSHA would not make the data
public even if collected'' (84 FR 390). In addition, at the time of the
2019 final rule, ``OSHA ha[d] already taken the position that data from
Form 300A is exempt from disclosure under FOIA and that OSHA will not
make such data public for at least the approximately four years after
its receipt that OSHA intends to use the data for enforcement
purposes'' (84 FR 391).
    Since publication of the 2019 final rule, however, OSHA is now
better able to collect, analyze, and publish data from Forms 300 and
301, and advances in technology have reduced the risk that information
that could reasonably be expected to identify individuals directly will
be disclosed to the public. Also, improvements in technology have
reduced the manual resources needed to identify and remove sensitive
worker information from 300 and 301 forms. These developments will
allow OSHA to more effectively review and analyze the collected 300 and
301 data and ensure that information which could reasonably be expected
to identify employees directly is removed prior to publication. For
example, as discussed below, more advanced autocoding technology will
allow OSHA to more efficiently review and analyze the data, allowing
the agency to focus its enforcement targeting and compliance assistance
resources on specific hazards at establishments with safety and health
problems, resulting in a reduction of work-related injuries and
illnesses. Similarly, advances in technology to identify and remove
information which could reasonably be expected to identify employees
directly will reduce the resources needed to publish text-based
information while adequately protecting worker privacy. In addition,
OSHA plans to publish the coded data produced by the more advanced
autocoding technology, which by its nature will not include any
information which could reasonably be expected to identify employees
directly.\5\
---------------------------------------------------------------------------

    \5\ OSHA, like other Federal agencies, is responsible for
protecting personally identifiable information (PII) in accordance
with law and policy. Throughout this preamble, OSHA identifies and
discusses multiple ways in which the agency fulfills this
responsibility.
---------------------------------------------------------------------------

    Additionally, as explained above, since 2020, there have been
multiple court decisions adverse to the Department of Labor's position
that electronically submitted Form 300A data are exempt from public
disclosure under the FOIA. In these decisions, courts have rejected the
Department of Labor's position that electronically submitted 300A
injury and illness data was covered under the confidentiality exemption
in FOIA Exemption 4. As a result, in August 2020, OSHA initiated a
policy to post collected 300A data on its public website at https://www.osha.gov/Establishment-Specific-Injury-and-Illness-Data, with
submissions for calendar years 2016, 2017, 2018, 2019, 2020, and 2021.
    Accordingly, based on the recent developments described above, and
the additional information included in the record for this rulemaking,
OSHA now believes there are significant benefits resulting from the
collection and publication of establishment-specific, case-specific,
injury and illness data from Forms 300 and 301. In addition, as
explained below, OSHA concludes that the significant benefits
associated with the collection and publication of Forms 300 and 301
data outweigh the slight risk to employee privacy. Indeed, the benefits
of collection alone would outweigh the slight risk to employee privacy.
    As explained in more detail below, after considering the record as
a whole, including commenters' responses to specific questions in the
NPRM on this topic, OSHA finds that the collection of, and expanded
public access to, establishment-specific, case-specific, injury and
illness data will allow OSHA, employers, employees, potential
customers, employee representatives, researchers, safety consultants,
and the general public to use the data in ways that will ultimately
result in the reduction of occupational injuries and illnesses (see 87
FR 18547).
a. General Benefits of Collecting and Publishing Data From Forms 300
and 301
    OSHA received several comments on the general benefits of
collecting and publishing data from Forms 300 and 301. For example,
Miranda Ames commented, ``The more data we have about workplace safety,
the better we can do at protecting workers. Collection of information
like this by OSHA will enable better statistical analysis of workplace
injuries across industries, and incentivize employers to keep more
thorough records of workplace incidents and accidents'' (Docket ID
0011).
    Similarly, Cal/OSHA commented, ``Complete and accurate surveillance
of occupational injury and illness is essential and holds significant
value for informed policy decisions and for effective intervention and
prevention programs. The policy of requiring submission of detailed
information from larger employers specifically helps identify and abate
workplace hazards by improving the surveillance of occupational injury
and illness.'' (Docket ID 0084). This commenter also explained that the
proposed requirements for reporting detailed information, and the
transparency that it creates, encourage and support accurate
occupational injury and illness reporting (Docket ID 0084). Similarly,
Centro de los Derechos del Migrante, Inc. commented that making the
data publicly available will increase the accuracy of such records and
address underreporting by employers (Docket ID 0089).
    In addition, commenters suggested that the collection and
publication of Forms 300 and 301 data will allow the agency to receive
more detailed information on the nature and circumstances of work-
related injuries and illnesses, and target its limited enforcement and
compliance assistance resources to protect the greatest number of
workers (Docket IDs 0040, 0064). Commenters also noted that this rule
may particularly benefit low-income and minority workers (Docket IDs
0045, 0048). For example, National COSH stated that Latino and Black
workers are at greater risk of dying on the job than other workers, and
this rule ``is critical to improving worker safety and health,
especially for workers at elevated risk of injury, illness and death''
(Docket ID 0048).
    On the other hand, some commenters questioned whether OSHA had

adequately justified the benefits of collecting and publishing data in
the proposed rule. For example, NFIB stated that many of the reasons
that OSHA gives in the preamble to the proposed rule to justify the
collection and publication of information are ``rather flimsy'' (Docket
ID 0036). Some commenters stated that the collected data would not
benefit workplace safety and health, concluding that OSHA recordkeeping
data are not useful. For example, an anonymous commenter stated that
data collection is reactive, and that taxpayer money would be much
better spent on proactive programs that improve safety and health in
the workplace. This commenter also asked, ``How do employers know that
OSHA will not start targeting them due to injuries that are reported?''
(Docket ID 0014). The U.S. Poultry & Egg Association commented that the
existing reporting rules are adequate to allow employers to identify
risks and allow OSHA to direct its enforcement activities, and stated
that a reduction in injury and illness rates in poultry processing and
general manufacturing from 1994 to 2020 is evidence that OSHA's
proposed changes are unnecessary (Docket ID 0053).
    Mid Valley Agricultural Services commented, ``It is unclear how the
proposed rule will result in reductions to injuries/illnesses in the
workplace or the frequency and severity of instances. Aggregating more
data on workplace injuries/illnesses does nothing in and of itself to
reduce the possibility of workplace injuries/illnesses'' (Docket ID
0019). The Plastics Industry Association (Docket ID 0086) and Angela
Rodriguez (Docket ID 0052) submitted similar comments. In addition, the
U.S. Chamber of Commerce resubmitted a comment from the 2016 rulemaking
that argued that OSHA's collection of injury and illness data would not
lead to effective targeting of workplaces ``because information about
an establishment's incidences of workplace injuries and illnesses does
not accurately or reliably correlate with an establishment that is
hazardous or that has failed to take OSHA-compliant steps to prevent
injuries'' (Docket ID 0088, Attachment 2). The comment asserted that a
study by the RAND Corporation ``found that no research supports the
preconception that the goal of reducing workplace injuries and
illnesses can be most effectively reached by focusing on workplaces
with the highest number of incidents of injuries or illnesses'' and
that ``there appears to be little relationship between the injury rate
and the likelihood of violations at inspected establishments.'' The
comment concluded that ``this proposed database will provide raw data
subject to so many caveats, complexities, and assumptions as to be
meaningless.''
    In response, OSHA agrees with commenters who generally stated that
there are benefits resulting from the collection and publication of
establishment-specific, case-specific, injury and illness data from
Forms 300 and 301. As discussed in more detail below, the primary
purpose of the requirement in the final rule for the electronic
submission of 300 and 301 data, and the subsequent publication of
certain data, is to prevent occupational injuries and illnesses through
the use of timely, establishment-specific injury and illness data by
OSHA, employers, employees, other Federal agencies and States,
researchers, workplace safety consultants, and the public. The
collection and publication of data from Forms 300 and 301 will not only
increase the amount of information available for analysis, but will
also result in more accurate statistics regarding work-related injuries
and illnesses, including more detailed statistics on injuries and
illnesses for specific occupations and industries. In other words, the
increase in collected injury and illness data will necessarily result
in more accurate statistics. In turn, more accurate statistics will
enhance interested parties' knowledge regarding specific workplace
hazards.
    Relatedly, OSHA agrees with commenters that said making the data
publicly available will increase the accuracy of occupational injury
and illness reporting. To the extent that underreporting is a problem,
the public availability of case-specific data will allow employees to
assess whether their personally experienced injuries and illnesses have
been accurately recorded on their employers' Forms 300 and 301.
Although others would not be able to identify that a specific employee
suffered a particular injury or illness, OSHA expects that the injured
or ill worker would be able to determine whether their particular
injury or illness was recorded. This check would work in tandem with
employees' ability to check such things in an employer's Forms 300 and
301 and would address employees' fear that asking to view those forms
could result in retaliation. OSHA has also discussed these issues in
further detail in Section III.B.4.d of the Summary and Explanation.
    The requirement to submit establishment-specific, case-specific
data will also assist OSHA in encouraging employers to prevent
occupational injuries and illnesses by expanding OSHA's access to the
information that employers are already required to keep under part
1904. As noted elsewhere, OSHA typically only has access to
establishment-specific, case-specific, injury and illness information
when it conducts an onsite safety and health inspection at an
individual establishment. However, the electronic submission of 300 and
301 data will allow OSHA to obtain a much larger data set of
information about work-related injuries and illnesses and will enable
the agency to use its enforcement and compliance assistance resources
more effectively. OSHA intends to use the collected data to identify
establishments with recognized workplace hazards where workers face a
high risk of sustaining occupational injuries and illnesses.
    The collection of establishment-specific, case-specific information
will also provide data for analyses that are not currently possible.
OSHA plans to use the data collected from this final rule to assess
changes in the types and rates of specific injuries and illnesses in a
given industry over a long period of time. In addition, the data
collection will allow OSHA to better evaluate the effectiveness and
efficiency of its various safety and health programs, initiatives, and
interventions in different industries and geographic areas.
Additionally, for these reasons, OSHA disagrees with commenters that
suggest current reporting requirements are adequate to protect worker
safety and health.
    OSHA disagrees with commenters that stated that part 1904 injury
and illness data are not useful in improving occupational safety and
health, and that taxpayer funds would be better spent on more proactive
measures. As noted above, OSHA's injury and illness recordkeeping
regulation has been in place since 1971. The information recorded on
the OSHA forms is recognized by safety and health professionals as an
essential tool for identifying and preventing workplace injuries and
illnesses. Historically, employers, employees, and OSHA have used part
1904 information to identify injury and illness trends and to evaluate
the effectiveness of abatement methods at an individual establishment.
The collection and publication of certain data from the 300 and 301
forms required by this final rule will enable interested parties and
OSHA to have access to a much larger data set, resulting in increased
knowledge of workplace hazards, and a reduction in occupational
injuries and illnesses. In addition, implementation of the collection
and publication of

establishment-specific, case-specific, injury and illness data is a
cost-effective measure used to improve workplace safety and health.
OSHA estimates that the total cost for implementing the requirements of
this final rule will have an annual cost to the government of
approximately $554,000 per year. However, the agency expects that the
increased knowledge of workplace hazards and injury and illness trends,
as well as the expected improved accuracy of part 1904 records, will
result in decreased workers' compensation costs for employers and
decreased healthcare costs for injured or ill employees by virtue of
the reduction in workplaces injuries and illnesses that OSHA expects to
result from this final rule. OSHA also notes, as discussed below, that
the agency's collection of this information will allow it to more
effectively prioritize its compliance assistance resources, which will
help employers better protect their employees.
    OSHA agrees that the injury and illness data collected as a result
of this final rule may be used to target certain establishments for
safety and health inspection or compliance assistance. The agency
considers the use of the collected data for possible targeting of
specific establishments for enforcement or compliance assistance
intervention as a benefit of this final rule. Again, as noted above,
OSHA expects the accuracy and quality of occupational injury and
illness data to improve as a result of this final rule. The increased
amount of data collected by the agency, along with the expected
improvement in data accuracy, will enable OSHA to better analyze and
evaluate workplace safety and health hazards. Accordingly, the overall
improvement in the data collected by the agency will allow OSHA to more
accurately and objectively target specific establishments where workers
are at high risk and thereby reduce the overall occurrence of workplace
injuries and illnesses.
    With regard to the Chamber's comment on the 2013 RAND Corporation
study, OSHA notes that the study focuses primarily on the effectiveness
of various types of Cal/OSHA inspections (e.g., programed, planned, and
complaint) rather than on issues related to workplace injury and
illness rates. Indeed, similar to how OSHA intends to use the collected
data from this final rule, one of the recommendations included in the
study states, ``Workplaces in high-injury-rate industries that have not
been inspected at all or not for many years should be identified and
deserve some priority in programmed inspections'' (see Inspection
Targeting Issues for the California Department of Industrial Relations
Division of Occupational Safety and Health (John Mendeloff & Seth A.
Seabury) (Docket ID 0099) at 13). Finally, as noted above, Cal/OSHA
itself commented in this rulemaking that injury and illness
surveillance is essential for informed policy decisions and in the
identification, prevention, and abatement of workplace hazards (Docket
ID 0084).
    Additionally, the National Propane Gas Association stated that OSHA
``does not provide any details as to how publicly available information
could improve workplace safety'' (Docket ID 0050). In response, as the
agency explained in the NPRM (87 FR 18538), by that point in time, OSHA
had successfully collected reference year 2016 through 2020 Form 300A
data through the OSHA Injury Tracking Application. (Since publication
of the NPRM, OSHA has completed collection of reference year 2021 Form
300A data and has begun collecting 2022 data.) Approximately 300,000
records have been submitted to the agency each year. OSHA has
successfully analyzed these data to identify establishments with
elevated injury and illness rates and has focused both its enforcement
and outreach resources towards these establishments. This experience
demonstrates OSHA's ability to collect, analyze, and use large volumes
of data to interact with establishments where workers are being injured
or becoming ill. However, this same experience has demonstrated the
limits of the 300A data currently collected. As explained in more
detail below, the collection and publication of establishment-specific,
case-specific, injury and illness data from Forms 300 and 301 will
result in significant benefits for the agency.
    The International Bottled Water Association (IBWA) commented, from
an enforcement standpoint, ``by the time the data could be evaluated
for use in selecting OSHA's enforcement targets, the data would surely
be stale and provide no useful basis for the agency to initiate
enforcement against employers within the six-month statute of
limitations set forth in the OSH Act.'' This commenter also stated
that, ``[b]ecause the data is insufficient in and of itself as a
targeting tool, and because OSHA would be able to rely on such data
only when it likely no longer reflects current conditions at a
particular worksite, OSHA's enforcement program is better served by
continuing to use 300A summary data to target enforcement resources,''
and then obtaining a copy employer's current Forms 300 and 301 at the
time of an inspection (Docket ID 0076). IBWA added, ``[u]sing the more
detailed 300 and 301 data in the context of an individual inspection,
as the agency has historically done, is a better and more effective use
of this data than OSHA's proposed new plan'' (Docket ID 0076).
    In response, for purposes of enforcement inspection and compliance
assistance targeting, the agency intends to use the collected data from
this final rule in two ways. First, OSHA plans to continue to use
administrative plans based on neutral criteria to target individual
establishments with high injury and illness rates based on submitted
Form 300A summary data. Second, OSHA intends to use administrative
plans based on neutral criteria to target individual establishments
based on submitted case-specific, establishment-specific, injury and
illness data from the Forms 300 and 301.
    OSHA agrees with IBWA that relying on Form 300A summary data is an
effective source of information for targeting the agency's enforcement
resources. For example, the Site-Specific Targeting (SST) plan is
OSHA's main site-specific programmed inspection initiative for non-
construction workplaces that have 20 or more employees. Currently, the
SST program targets individual establishments based on 300A injury and
illness data that employers are already required to electronically
submit to OSHA under 29 CFR 1904.41. OSHA uses submitted 300A data to
calculate injury and illness rates for individual establishments. The
SST program helps OSHA achieve the goal of ensuring that employers
provide safe and healthful workplaces by directing enforcement
resources to those workplaces with the highest rates of injuries and
illnesses. Moving forward, OSHA intends to continue to use the 300A
data submitted under 1904.41(a)(1) of this final rule to calculate
injury and illness rates and target individual establishments for
inspection under the SST.
    OSHA also intends to use collected case-specific, establishment-
specific data from the Forms 300 and 301 to identify individual
establishments for enforcement inspection and compliance assistance
outreach. OSHA believes that reviewing and analyzing specific data from
the Forms 300 and 301 is an effective method for the agency to identify
individual establishments for enforcement inspection or compliance
assistance targeting. For example, OSHA will be able to use 300 and 301
data to identify specific hazards at a given

establishment. In turn, the agency will be able to more effectively
deploy its enforcement and compliance assistance resources to eliminate
identified hazards and enhance worker safety and health. Of course, and
as discussed elsewhere, OSHA enforcement targeting based on the data
submitted as a result of this final rule will be conducted in
accordance with a neutral-based scheme for identifying workplaces for
closer inspection.
    OSHA disagrees with IBWA's comment that the collected injury and
illness data the agency intends to use for its enforcement inspection
and compliance assistance targeting is stale. OSHA acknowledges that
the Forms 300 and 301 data are based on injuries and illnesses that
occurred during the previous calendar year. However, OSHA's current SST
inspection targeting program is also based on Form 300A summary data
from the previous calendar year. Even though the injuries and illnesses
occurred during the previous calendar year, the information is helpful
to OSHA in determining whether a hazard is an ongoing problem at a
specific establishment. For example, although a heat-related illness
may have occurred more than six months before the submission deadline,
it may be reasonable for OSHA to conclude that multiple entries of this
illness on the OSHA forms represent an ongoing hazard at that
establishment. In addition, research indicates that high injury and
illness rates are persistent over time until there is some type of
safety and health intervention at the facility (see Evaluation of
OSHA's Impact on Workplace Injuries and Illnesses in Manufacturing
Using Establishment-Specific Targeting of Interventions: Programmed
Inspections and High Hazard Notification Letters, FINAL REPORT.
Prepared by: ERG, Lexington, MA, July 16, 2004 (Docket ID 0098)). By
identifying an establishment with ongoing hazards, the agency has the
opportunity to use its enforcement and compliance assistance resources
to conduct an intervention and improve workplace safety and health.
b. Beneficial Ways That OSHA Can Use the Data From Forms 300 and 301
    OSHA expects to use the collected data in many ways to improve
worker safety and health. Most importantly, having this information
will provide OSHA with a much fuller and more detailed understanding of
the kinds of injuries and illnesses experienced by workers doing
different jobs in a range of industries.
    The data available from the 300A forms currently collected by OSHA
show primarily only how many ``injuries'' and ``illnesses'' occur. (The
300A ITA data also provide information on the number of cases of
illnesses involving hearing loss, poisonings, skin disorders, and
respiratory disorders, but even for those, knowing that they occurred
at a particular workplace provides little if any useful information
about how the workers developed them.) The data provide no meaningful
information about the kinds of injuries or illnesses suffered by
workers, the kind of work they do, or the hazards present at their
workplaces. The establishment-wide scope of the 300A data currently
available to OSHA also tends to obscure particular types of injuries
and illnesses that may affect only certain classes of workers at large
establishments. For example, nursing aides at hospitals may be exposed
to very different hazards than those facing other hospital staff who do
not perform the same kind of physical work. Yet, looking at hospital-
wide generalized data will give no hint of the circumstances giving
rise to particular exposures or which workers are affected.
    By having access to more precise information about the kinds of
injuries and illnesses affecting workers performing different kinds of
operations at different kinds of workplaces, OSHA can deploy its
resources in ways more calculated to address the specific hazards that
actually exist in specific workplaces. It is obvious that the broad
categories of ``injury'' and ``illness'' provide little useful
information about the specific kinds of hazards that exist at a
workplace. And even a narrower category of illness like ``respiratory
conditions'' does not indicate whether the respiratory condition is
related to a chemical exposure, COVID-19, valley fever
(coccidioidomycosis), hantavirus, Legionnaires' disease
(Legionellosis), or tuberculosis. In contrast, the collection and
analysis of case-specific data from the Forms 300 and 301 would allow
OSHA to determine the prevalence of particular respiratory hazards and
respond appropriately, whether that response is in the form of targeted
enforcement efforts or compliance assistance, general guidance
materials or regulatory solutions, or cooperation with local public
health authorities.
    Having access to case-specific data will also allow OSHA to
determine whether workers in particular demographics are being sickened
or injured disproportionately. These may be younger or older workers,
temporary workers, or workers new to a particular assignment. If OSHA
has this information, it will be able to develop strategies to address
the particular demographic factors that lead to these disproportionate
outcomes.
    Many of the comments questioning the utility of the data for OSHA
seemed to be premised on the erroneous belief that OSHA's primary use
of the data would be to target enforcement efforts at workplaces with
higher injury and illness rates. But the utility of case-specific data
is much broader. While the data certainly can be used to help target
enforcement, as well as compliance assistance efforts, it is also
valuable to OSHA in that it allows for the types of analyses that can
make all of OSHA's work more effective.
    As noted above, OSHA can analyze the data to identify the specific
conditions that are injuring workers as well as the specific classes of
workers who are being injured. OSHA can identify trends in the types of
injuries and illnesses that are occurring and, as noted by the AFL-CIO,
the agency can identify and assess emerging hazards (Docket ID 0061).
Being able to make these identifications allows OSHA to promote safer
workplaces in myriad ways. OSHA can disseminate information about
trends in injuries and illnesses and emerging hazards to the public so
that both workers and employers can take steps to prevent similar
injuries and illnesses at their own facilities. For example, the AFL-
CIO noted that the data could have been utilized in the first years of
the COVID-19 pandemic to identify where effective mitigation measures
were necessary to reduce exposures, and could have been incorporated
into agency guidance, enforceable standards, and enforcement
initiatives, and used to inform employer and union COVID-19 safety
plans (Docket ID 0061). OSHA can also prioritize use of its own limited
resources to have the greatest impact. This may mean providing more
useful compliance assistance or guidance, considering development of
new standards, or revising enforcement programs to focus on workplaces
where OSHA has determined that hazards are more likely to be found. As
noted by the Laborers' Health and Safety Fund of North America, this
also means that OSHA can ``become more data driven in its compliance
and enforcement efforts'' and, ``[i]n being a more online and easily
accessible agency, OSHA can push its consulting efforts and services''
(Docket ID 0080).
    One example of how OSHA can use the information in Forms 300 and
301 relates to OSHA's efforts to address indoor and outdoor heat-
related hazards. As climate change has accelerated, heat hazards have
become

more prevalent, sickening and killing more workers every year (see
https://www.osha.gov/sites/default/files/enforcement/directives/CPL_03-00-024.pdf). OSHA's efforts to address these hazards are multi-pronged,
with ongoing enforcement, compliance assistance, and guidance efforts,
as well as a regulatory component. Without case-specific injury and
illness data, OSHA's understanding of the scope of the problem and its
ability to identify specific operations and types of establishments
where workers are most at risk, are limited, impeding its ability to
intervene at an early enough stage to prevent worker illnesses and
deaths. Currently, OSHA most often learns of these hazards after an
employer reports a worker hospitalization or death (pursuant to 29 CFR
1904.39). The Form 300A listing of the number of illnesses at various
establishments gives no sense of how many of those illnesses are heat-
related. In contrast, Forms 300 and 301 data will allow OSHA to
identify patterns and trends in the occurrence of heat-related illness,
and not only focus its enforcement and compliance assistance resources
appropriately, but also inform OSHA's efforts to develop a permanent
standard addressing heat hazards. These types of longer-term strategic
activities can help make OSHA a more effective agency overall, and in
doing so, make all workers safer.
c. Beneficial Ways That Employers Can Use the Data From Forms 300 and
301
    In the preamble to the proposed rule, OSHA asked, ``What are some
ways that employers could use the collected data to improve the safety
and health of their workplaces?'' Multiple commenters provided comments
on employers' use of the collected data to improve the safety and
health of their workplaces, including information about benchmarking
and incentives. (Docket IDs 0030, 0035, 0046, 0061, 0063, 0093). For
example, AIHA commented, ``Benchmarking against other employers is an
important management tool for understanding and improving occupational
safety and health programs'' (Docket ID 0030). Similarly, the AFL-CIO
commented that the collected data would provide employers direct access
to detailed injury and illness information to compare their injury and
illness records and experience with others in the same industry (Docket
ID 0061). NIOSH made similar comments and added that, currently,
employers may compare their injury rates to those of their industry as
reported in the SOII, but because of the large number of injury and
illness records that will be collected under this rulemaking, employers
will be able to compare their injury and illness rates to those of many
more specific groups of establishments and employers. This commenter
also stated, ``Benchmarking safety performance to more comparable
establishments and employers instead of large, anonymous aggregates
would provide more accurate as well as more compelling metrics for
guiding and motivating improvement of safety programs'' (Docket ID
0035).
    More generally, the Sheet Metal and Air Conditioning National
Association (SMACNA) commented, ``SMACNA members believe that any
additional data that is collected should be used in tandem with Bureau
of Labor Statistics (BLS) data so our industry can better understand
loss trends and use the information accordingly. SMACNA members provide
a unique service and would like the data to be broken down by the
specific North American Industry Classification System (NACIS) codes.
Such as detailed OSHA incident rate information for NACIS code 238220--
Plumbing, Heating, and Air-Conditioning Contractors.'' (Docket ID
0046).
    Additionally, Worksafe commented that access to more electronic
data will allow businesses to compare their safety performance to other
firms and enable competition for improved safety. Also, this commenter
explained that suppliers, contractors, and purchasers of a firm's goods
or services could also consider the information in their business
decisions, such as whether to support a business with a poor safety
record. In addition, regarding the issue of incentives for employers,
this commenter stated, ``When employers know that injury or illness
incidents will be published online, the risk of social stigma will
encourage them to take appropriate precautions and avoid violations''
(Docket ID 0063).
    Similarly, Public Citizen commented, ``Bringing performance
information out into the open is an effective form of behavioral
economics impacting employer decision-making. It serves as a strong
incentive for employers to improve their safety records and support
their reputations. It would encourage employers to implement systems,
protocols, education and workplace alterations, resulting in less
worker injuries and illnesses. Employers can also use establishment-
specific, case-specific injury and illness information to compare their
safety record to similar establishments and set benchmarks for
improvement of their own safety and health performance. Negative
publicity has been shown to improve not just the behavior of the
highlighted employer, but also other employers. This general deterrence
effect has been demonstrated by improved compliance with safety
standards by employers after OSHA issued press releases on OSHA
violations uncovered during inspections. The impact was so powerful
that press releases led to 73 percent fewer safety violations
identified during programmed inspections at neighboring enterprises and
a drop in injury reports from the same enterprises.'' (Docket ID 0093).
    On the other hand, several commenters stated that employers would
not be able to use the collected data to improve the safety and health
of their workplaces (Docket IDs 0086, 0090, 0094). For example, the
Plastics Industry Association commented, ``The rule will not assist
employers in managing workplace safety as it does not provide
information that is not already available to them and their employees.
When companies publish incident reports internal to all employees, all
personal information is removed, and no medical information is
provided.'' This commenter also stated that companies track different
types of information and that some companies already benchmark with
others (Docket ID 0086).
    The Phylmar Regulatory Roundtable OSH Forum also commented that
there is already benchmarking by employers, saying, ``Many employers,
such as PRR members are part of trade organizations and already
participate in formal benchmarking on injury and illness data. PRR
members also review BLS data. Therefore, we believe that OSHA's posting
of establishment specific data will be of NO additional benefit to the
resources already available to employers who actively pursue these
methods.'' (Docket ID 0094).
    In addition, a few commenters stated that the data would harm
employers. For example, Angela Rodriguez commented, ``There is a
perceived risk of business competitors using the establishment-level
data to gain an advantage by comparing/contrasting results in a
negative context. E.g., `Company X lets their employees get seriously
injured 3x more than us' '' (Docket ID 0052). Similarly, the National
Retail Federation commented, ``Given President Biden's expressed desire
to lead the ``most pro-union Administration in American history,'' it
is likely that the true motivation of this rulemaking is to weaponize
injury and illness data for labor union leaders' benefit. Labor unions
will likely use this data to gain support for their organizing efforts,
claiming the data proves an

employer is not protecting its workers.'' (Docket ID 0090). This
commenter also stated that unions may use the data to pressure
employers in negotiations over collective bargaining agreements, and
competitors may use the information for anticompetitive purposes, such
as poaching top workers or hurting the reporting entity's standing in
the community (Docket ID 0090). Likewise, the Phylmar Regulatory
Roundtable OSH forum commented, ``This type of risk profile and data
tool could also be used by insurance companies when determining
policies and rates for a company's worker compensation insurance plan.
In addition, an insurance company could use the risk profile and data
tool to deny issuance of disability, long-term, and other types of
insurance.'' (Docket ID 0094).
    In response, OSHA agrees with commenters who stated that employers
will be able to use the published establishment-specific, case-
specific, injury and illness data to improve their workplace safety and
health. Specifically, employers will be able to use the data to compare
case-specific injury and illness data at their establishment with that
of comparable establishments and set safety and health goals
benchmarked to the establishments they consider most comparable. OSHA
also plans to include information regarding establishments' NAICS
codes. As SMACNA suggests, interested parties can use that information
to better understand loss trends, which will help them make
improvements in worker safety and health.
    Since employers will have access to a much larger data set, OSHA
disagrees with commenters who suggested that employers already have
access to enough information from trade associations to conduct
benchmarking with injury and illness data. OSHA notes that employers
will be able to access data from the entire range of establishments
covered by the electronic submission requirements in this final rule.
Thus, employers will have the opportunity to compare and benchmark
their injury and illness data with not only the safest establishments
in their industry, but with the safest establishments in all industries
covered by the final rule. In addition, OSHA anticipates that employers
will be able to review the establishment-specific injury and illness
data, identify safer establishments in their industry, and potentially
develop and establish similarly effective safety and health programs at
their own facilities.
    OSHA also agrees with commenters who stated that the publication of
establishment-specific, case-specific, injury and illness data will
incentivize employers to minimize the number of occupational injuries
and illnesses at their workplace. For example, the publication of the
data will encourage potential customers or business partners to
evaluate the full range of injury and illness cases at a specific
establishment. In turn, employers will work to improve the occupational
safety and health at their facility, which will result in reduced work-
related injuries and illnesses, thereby enhancing the employer's
standing with potential customers and business partners.
    In addition, OSHA disagrees with commenters who stated that the
collection and publication of establishment-specific, case-specific,
injury and illness data will harm employers or that labor unions will
``weaponize'' the data. Again, as noted above, the only purpose for the
collection and publication of injury and illness data required by this
final rule is to improve occupational safety and health and to reduce
injuries and illnesses to workers. At the same time, OSHA considers the
publication of an establishment's injury and illness data, which can be
a valid measure of a company's overall safety culture, to be an
effective incentive for employers to improve occupational safety and
health. As a result, OSHA concludes that the collection and publication
of this data will encourage employers with more hazardous workplaces to
make improvements in safety and health to reduce the number of
occupational injuries and illnesses at their workplaces. Such changes
will also be of benefit to employers, in that workplace illnesses and
injuries impose costs on employers beyond the cost to the injured or
ill employee.
    In response to the Phylmar Group's comment that insurance companies
may use the collected data to calculate insurance rates or deny
insurance coverage to companies based on the data, OSHA notes that
insurance companies could engage in these practices using the 300A data
OSHA has been collecting and publishing for several years now if they
wanted to. The Phylmar Group does not identify any reason why the
collection of data from Forms 300 and 301 would make these practices
more likely or widespread, nor does it provide any evidence that
insurance companies are or are not already doing this. Moreover, the
possibility that insurance companies may raise rates or deny insurance
coverage based on an employer's higher-than-average rates of
occupational injuries and illnesses would provide further incentive for
employers to improve workplace safety and health at their
establishments.
    Finally, and as discussed below, access to the collected data will
improve the workings of the labor market by providing more complete
information to job seekers. Using data newly accessible under this
final rule, potential employees will be able to examine case-specific
information to help them make more informed decisions about future
employment and, in turn, could encourage employers to make improvements
in workplace safety and health in order to attract potential employees.
In addition, this would help address the problem of information
asymmetry in the labor market, where the businesses with the greatest
problems have the lowest incentive to self-disclose.
    Accordingly, after consideration of the rulemaking record, OSHA has
determined that employers will be able to use the collected and
published data to improve workplace safety and health and reduce
occupational injuries and illnesses.
d. Beneficial Ways That Employees Can Use the Data From Forms 300 and
301
    In the preamble to the proposed rule, OSHA asked ``What are some
ways that employees could use the collected data to improve the safety
and health of their workplaces?'' 87 FR 18547.
    OSHA received many comments on how employees will benefit from
increased access to information from the 300 and 301 forms and on how
employees will use the collected data to improve safety and health at
their workplaces. Several commenters provided information on how
employees will generally be able to use the collected data from Forms
300 and 301 (Docket IDs 0035, 0061, 0063, 0065, 0066, 0078). For
example, AIHA commented, ``Under a Total Worker Health model, injury
data about specific tasks, operations, job titles, and industries could
be used for worker training and education'' (Docket ID 0030).
Similarly, NIOSH commented, ``While the BLS Annual Survey data provide
good metrics for injury risks by industry, they are not ideal for
engaging workers and helping them to understand the risks that they may
face in their own jobs.'' This commenter also explained that the
narrative case-specific data that would be collected under the rule
could provide employees with concrete, real-world, accounts on how
injuries and illnesses occur and instruct them on how they can be
prevented (Docket ID 0035). The AFL-

CIO submitted similar comments (Docket ID 0061).
    The National Nurses Union commented, ``Public posting of this data
would enable workers and their representatives to better understand the
scope of injuries and illnesses in particular work sites and to do so
in a more timely and efficient manner. While workers and their
representatives can access logs at their own workplace, they currently
cannot compare those logs to other workplaces in the industry. For
nurses, patterns of injury and illness could be identified, compliance
with existing standards could be more efficiently examined, and
emerging occupational risks could be better evaluated. When action to
correct workplace safety and health hazards is inefficient or delayed,
workers are unnecessarily exposed to predictable and preventable
hazards. Delays in correcting a workplace hazard pointlessly cost the
lives, limbs, and livelihoods of NNU members and other workers.''
(Docket ID 0064).
    Additionally, Worksafe commented that unions and worker advocacy
groups will be able to use case-specific information to seek safety
improvements, ``Currently, these groups can access Form 300 logs only
by requesting them from employers, and the information may be provided
in an inefficient manner such as in PDF files or on paper. As detailed
below, unions and worker advocacy groups have the expertise to analyze
this information to identify necessary workplace fixes. Electronic
publication of more granular data will make it possible for them to
better identify the cause of worker injuries and illnesses, more
efficiently analyze large quantities of information, and appropriately
direct their efforts.'' (Docket ID 0063). Worksafe also provided
several examples of how establishment-specific, case-specific, injury
and illness data has been used by employees and their representatives
to reduce workplace injuries and illnesses. For example, it included a
narrative from a meatpacking labor organization:, ``In 2008, leaders
from the UFCW Tyson meatpacking locals union accessed Form 300 logs
collected from one meatpacking plant for a one-month period. They
analyzed injuries that could be related to ergonomic hazards and then
placed red ``sticky dots'' on a hand-drawn map of a human body,
depicting injury areas. The resulting body map looked as though the
hands were dripping blood because so many red dots were placed in that
area. The leaders were able to confirm that, despite known under-
reporting, a lot of hand-specific injuries occurred amongst their
members. The leaders later presented the body map in a meeting with
Tyson management, where it became a powerful tool. This meeting
included an individual who had been in charge of the company's
ergonomics program some years earlier and who had recently returned as
a top-level manager. Seeing the map, he agreed with the union to start
a series of efforts to revitalize the ergonomics program.'' (Docket ID
0063).
    In contrast, some commenters stated that the collection and
publication of certain data from Forms 300 and 301 could potentially
harm employees, including harm to employee privacy and employability.
For example, R. Savage commented, ``I have concerns with organizations
uploading their OSHA Forms 300 and 301 because both forms contain
identifiable personal information. My concern is the privacy of the
injured employee. Government agencies have accidentally released
personal information in the past. Removing the employee's name in OSHA
form 300 and removing sections 1-9 of OSHA form 301 does not guarantee
that the employee will not be identifiable.'' (Docket ID 0018). Also,
an anonymous commenter stated, ``This would seem to make employees feel
like they need to share even more private information to their
employers than they already do'' (Docket ID 0044). However, this last
comment seems to be based on a misunderstanding. This rulemaking does
not amend the type of information that employers must enter on their
recordkeeping forms, nor does it amend the recordkeeping forms used to
track injuries and illnesses. Instead, this rulemaking addresses the
electronic submission to OSHA of certain information on the
recordkeeping forms that employers are already required to keep.
    In response to the comments above, OSHA agrees that employees will
be able to use the collected and published data from Forms 300 and 301
to improve workplace safety and health. The collection and subsequent
publication of this data will allow employees to analyze injury and
illness data that is not currently available. The online availability
of such data will allow employees to compare their own workplaces to
other workplaces in their industries. Also, with access to
establishment-specific, case-specific data, employees will be better
able to identify emerging injury and illness trends in their industries
and push for changes in safety and health policies to better protect
workers. In addition, employees and their representatives will be able
to use the large amount of newly available case-specific information to
develop effective education and training programs to identify and
reduce workplace hazards.
    With regard to the comments expressing concern about employee
privacy, as discussed elsewhere, OSHA is confident that the agency will
be able to protect information that could reasonably be expected to
identify individuals directly. The combination of not requiring
employers to submit certain information, and the improved technology
used to identify and remove personal information in the collected data,
greatly reduces the risk that reasonably identifiable employee
information will be disclosed to the public. Again, OSHA believes the
significant benefits to improved workplace safety and health outweigh
the slight risk of information that could reasonably be expected to
identify individuals directly being disclosed to the public.
    Other commenters stated that, currently, employees and their
representatives only have online access to general data from the Form
300A or aggregate data from the BLS SOII (Docket IDs 0063, 0078).
Worksafe commented, ``electronic publication of case-specific
information on injuries, illnesses, and even fatalities will allow
firms' own employees to access timely information that they can use to
improve their own workplaces'' (Docket ID 0063). Also, Unidos US,
Farmworker Justice, and Texas RioGrande Legal Aid commented that, using
currently available BLS data, it is impossible to know how many
farmworkers specifically suffer from heat-related illnesses. These
commenters explained that with access to case-specific Forms 300 and
301 data, employees and their representatives will be able to search
information online to identify specific workplace hazards and direct
their resources to those hazards (Docket ID 0078).
    On the other hand, some commenters stated that employees already
have access to the information they need. The National Propane Gas
Association commented, ``Potential employees or the general public can
assess an entire industry through the Bureau of Labor Statistics data
that OSHA referred to in the proposal'' (Docket ID 0050).
    In response, OSHA disagrees with the National Propane Gas
Association that potential employees only need access the aggregate
industry information though the SOII. As discussed above, aggregate
data from the SOII, as well as the general summary data from the Form
300A, do not provide employees with access to case-specific information

at individual establishments. As explained by other commenters, online
access to the establishment-specific, case-specific, injury and illness
data will allow employees to search and identify other establishments
and occupations in their industries and compare the injury and illness
data at their establishments with the safest workplaces. Also, both
current and potential employees will have better access to health and
safety information about specific occupations and workplaces and will
be able to better identify and understand the specific risks they face
in their own jobs. Importantly, and as noted by commenters, access to
Forms 300 and 301 data will enable employees to track specific injuries
and illnesses, such as heat-related illnesses, throughout their
industries.
    Some commenters stated that, even though employees have a right of
access to the OSHA recordkeeping forms under 29 CFR 1904.35, some
workers may fear retaliation from their employer if they request access
to information from the 300 and 301 forms at their workplace (e.g.,
Docket IDs 0049, 0061, 0063, 0089, 0093). National COSH commented,
``Making the case specific data publicly available as proposed in the
standard will also increase worker safety for the employees in the
establishments with 100 or more employees. Workers are too often scared
of retaliation if they request this information, even though employers
are required to provide access to the full 300 logs to employees upon
request. This information will allow employees in these establishments
access to this data without fear of retribution and it will help them
better identify patterns of injuries and hazards and to take actions to
have the hazards abated.'' (Docket ID 0048). NELP submitted a similar
comment (Docket ID 0049). Additionally, Centro del Derecho del Migrante
commented, ``Public access to these data will also improve worker
safety by allowing workers and their advocates to better identify
patterns of injuries and hazards in workplaces and across industries .
. . Publishing this information will allow employees in these
establishments access to this data without fear of retribution, and to
demand abatement of hazards in their own workplaces and industries.''
(Docket ID 0089).
    There were also comments stating that, despite the access
requirements in 29 CFR 1904.35, many employers either deny or delay
access to case-specific information to employees and their
representatives. The United Food and Commercial Workers Union (UFCW)
commented, ``The public access provisions of this rule allow workers to
get important information through the OSHA website, rather than
navigate these hurdles with employers'' (Docket ID 0066). UCFW added
that it has had success in monitoring injury and illness data and
working with employers to apply the data to injury and illness
prevention efforts, but noted that workers in non-union workplaces do
not have the same ability to access the data, and that this rule would
help ``bridge that gap'' by providing all workers with access (Docket
ID 0066). Another commenter explained that, even when injury and
illness information is provided to employees, the information is not in
a usable format. The Strategic Organizing Center commented that, even
when workers request access to part 1904 information, ``they do not
have any specific right to receive them in a way which achieves the
goal of facilitating the analysis. This is especially important for
workers at the larger employers covered by the proposed reporting
requirement for the 300/301 data'' (Docket ID 0079).
    In response, and as discussed above, OSHA's recordkeeping
regulation at 29 CFR 1904.35 already provides employees and their
representatives with access to the three OSHA recordkeeping forms kept
by their employers, with some limitations. Under Sec.  1904.35, when an
employee, former employee, or employee representative requests access
to certain information on Forms 300 or 301, the employer must provide
the requester with one free copy of the information by the end of the
next business day. Any delay or obstruction by an employer in providing
the required information to employees or their representatives would be
a violation of the recordkeeping regulation. And, retaliation against
an employee for requesting this information would violate Section 11(c)
of the OSH Act.
    OSHA agrees with commenters who stated that making establishment-
specific, case-specific, injury and illness information available
online will enhance worker safety and health, particularly where
employees are reluctant to request access to such information. If
workers fear possible retaliation from their employer, employees will
easily be able to access the case-specific data for their own workplace
online, thus avoiding the need to request the information from their
employer. This uninhibited access will allow employees to better
identify and address hazards within their own workplaces.
    In addition, since certain case-specific injury and illness data
will be posted online, employees will easily be able to search the
collected information to identify specific hazards at their workplaces.
Online posting also eliminates the problem noted by some commenters
that, in some cases, when employees request injury and illness
information from their employer, the information is provided on paper
or in a format that is not searchable. Also, the online posting of data
allows employees to conduct searches at any time to identify injury and
illness trends at their workplaces.
    Public Citizen commented, ``[P]otential employees will benefit from
the availability of injury and illness data from establishments as they
make informed decisions about employment. Workers can compare injury
rates between potential employers and choose to work for the safer
employer. This puts power in the hands of labor, incentivizing
employers to improve safety given the competition for workers.''
(Docket ID 0093).
    On the other hand, the Phylmar Regulatory Roundtable OSH Forum
expressed concern that the Form 300 and 301 data could be used to build
worker profiles that result in hiring decisions based on an employee's
injury and illness history and a high number of days away from work
(Docket ID 0094). Similarly, Brian Evans commented, ``Since this data
is public record, future employers would have access to this
information and could potentially discriminated against future hires
based on injured parties being listed in a work place related injury.
It could also lead to retaliation if the employee who was injured on
the job choses to stay employed in their current role. Leadership,
management, administration could view them as unsafe employees and
limit their growth potential at their organization, or seek ways to
terminate their employment due to the filing of a work place injury.''
(Docket ID 0080).
    In response, OSHA agrees with the comment from Public Citizen that
the published Form 300 and 301 data will assist potential employees in
researching establishments where the risk to workers' safety and health
is low. At this time, potential employees only have access to the
limited injury and illness data that is currently available to the
public as discussed above. Access to Form 300 and 301 data not only
provides job seekers with an opportunity to review information about
individual workplaces, but also allows them to analyze the injury and
illness history of specific job titles within a

given industry or workplace. Potential employees can also identify
trends among and between occupations, and at specific sites within one
workplace. Also, as noted by Public Citizen, access to this information
by potential employees should provide an incentive to employers to
improve workplace safety and health. Specifically, the publication of
Form 300 and 301 data will 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 more in
demand, might be reluctant to work at more hazardous establishments.
OSHA disagrees that employers will use the published data from this
final rule to discriminate against current or potential employees. With
regard to potential employees, and as discussed in more detail in
Sections III.B.6 and III.D of this Summary and Explanation, because
OSHA is not requiring the electronic submission of information that
could reasonably be expected to identify individuals directly (e.g.,
name, contact information), and because the agency is using improved
technology to identify and redact such information before publication,
it is extremely unlikely that employers will be able to use the
published data to identify specific individuals and determine their
injury and illness history. As for current employees, OSHA notes that
employers are already required under part 1904 to include certain
potentially identifiable information about an employee when they
sustain a work-related injury or illness (e.g., employers must enter
the injured or ill employee's name on the OSHA 300 log). As a result,
the publication of case-specific de-identified injury and illness data
under this final rule will have no impact on an employer's ability to
identify their own injured or ill employees.
    After consideration of these comments, OSHA has determined that
employees, potential employees, and employee representatives will be
able to use the collected data from Forms 300 and 301 to improve
workplace safety and health, including through better access to the
data in usable formats and without fear of retaliation. OSHA notes the
many examples in the rulemaking record provided by commenters on not
only how employees and their representatives currently use
establishment-specific, case-specific, injury and illness data, but
also on how they will be able to use the greater access to such
information provided by this final rule to reduce occupational injuries
and illnesses.
e. Beneficial Ways That Federal and State Agencies Can Use the Data
From Forms 300 and 301
    OSHA received a number of comments in response to the question in
the NPRM about the ways in which Federal (besides Federal OSHA, which
is addressed above) and State agencies will be able to use the data
collected under this final rule to improve workplace safety and health.
Multiple commenters, including the National Employment Law Project, the
Centro de los Derechos del Migrante, and Richard Rabin, noted generally
that the centralized collection of and access to case-specific data
will benefit the worker safety and health efforts of NIOSH, State
agencies, and the public health community (e.g., Docket IDs 0040, 0045,
0048, 0049, 0051, 0064, 0084, 0089). AIHA stated that ``With the
limited resources available to most federal and state worker health and
safety programs, targeted programs will provide the most benefit for
workers and companies. These data will provide information so that
priorities can be set and outcome trends monitored'' (Docket ID 0030).
    There were also comments from Federal entities about their intended
uses of the data. For example, NIOSH commented, ``As potential end
users of the data, NIOSH supports the improvements that are being
proposed by OSHA. NIOSH believes that the increased coverage of
employers within identified industries and the collection of the
additional detailed information that is not currently electronically
captured will offer greater potential for detailed and comprehensive
data analyses compared with the current data. NIOSH uses occupational
injury data to monitor injury trends, identify emerging areas of
concern, and propose research intervention strategies and programs.
Current OSHA data reflect a smaller proportion of select industries and
offer limited details. This new rule would offer greater coverage of
select industries and more detailed data, which would increase the
value and utility of these occupational injury data to NIOSH.'' (Docket
ID 0035, Attachment 2; see also Docket ID 0089).
    In addition, NIOSH's comment listed more specific purposes for
which it can use the collected data, including:
     Using the narrative data from Forms 300 and 301 for
learning the particular ways in which injuries occur in specific work
tasks and industries (citing work NIOSH has done with narrative data
from individual workers' compensation claims in Ohio).
     Using the coded OSHA Log case data with narratives as a
very large training data set that could be used to improve the
autocoding of workers' compensation claims. As NIOSH stated,
``[a]utocoding workers' compensation claim narratives is critical to
producing injury rate statistics that can guide prevention efforts by
identifying high and increasing rates of specific types of injuries in
specific industries and employers.''
     Improving the effectiveness and efficiency of workplace
inspections through the evaluation of more complete, detailed data on
certain types of injuries at specific workplaces. As an example, NIOSH
noted a series of studies supported by NIOSH where amputation cases at
specific workplaces were identified based on hospital records and
workers' compensation claims; the information was then provided to
Michigan OSHA, which used it to target inspections.
     Linking workers' compensation data to OSHA logs in order
to provide a more complete set of information than either data set
provides separately. This effort has the potential to improve
identification and prevention of injuries, especially among temporary
employment agency workers, who constitute a vulnerable population of
workers with a disproportionate burden of workplace injuries.
     Collaborating with National Occupational Research Agenda
Councils and OSHA to ``improve dissemination and use of the published
data to improve identification, mitigation, and prevention of workplace
injuries and illnesses'' (Docket ID 0035, Attachment 2).
    National COSH agreed with NIOSH, noting that making these data
publicly available will assure that researchers and other agencies,
like NIOSH, can use the data for surveillance, evaluation, and research
purposes (Docket ID 0048).
    In addition to the benefits of the data at the Federal level,
multiple commenters addressed the value of the final rule's data
collections to the States and to State occupational safety and health
efforts. In the preamble to the 2019 final rule, OSHA acknowledged
``that systems to collect this volume of data would be costly for
States to implement. Centralized collection might be more efficient and
cost-effective than state-by-state collection . . .'' At that time,
OSHA stated that it had ``doubts about the usefulness of the data and
concerns about the costs of collection,'' but reiterated that States
were nonetheless ``empowered to do as

OSHA ha[d] and weigh the substantial costs of collection against the
likely utility of the data'' (84 FR 394). In response to the NPRM in
the current rulemaking, many commenters made it clear that State
efforts to improve workplace safety and health will benefit from the
data that is made available by this rule, and that a national
collection system is a far more efficient means of achieving these
benefits than individual State efforts. National COSH noted similar
benefits at the State level as at the Federal level, stating that State
and community public health agencies will be able to use the data to
better understand the hazards in high-risk establishments and then
target those establishments for assistance and information regarding
best practices (Docket ID 0048). Likewise, the Council of State and
Territorial Epidemiologists (CSTE) commented, ``Access to these data
would also facilitate public health agency efforts to reduce work-
related injuries and illnesses in the States and significantly increase
the potential for more timely identification of emerging hazards.
Electronic collection of existing records is in line with 21st century
advances in health data collection made possible by advances in
information technology that involve centralized collection, analysis,
and dissemination of existing data from multiple entities. These
include, for example, collection at the State level of data on all
hospitalizations, all emergency room visits, and all ambulance runs,
and in over 20 States, data on all public and private insurance claims
(excluding workers' compensation claim data). . . . Making this
information broadly available is consistent with the growing
recognition, predominant in the patient safety field, that
transparency--sharing of information, including information about
hazards--is a critical aspect of safety culture.'' (Docket ID 0040).
    In addition, CSTE provided specific examples of ways in which the
electronic reporting of case-level workplace injury and illness data
can enhance State health department and others' efforts to reduce work-
related injuries and illnesses and hazards in States and communities.
These examples included:
     Identification of emerging problems: ``The ability to
search file level data not only in the establishment where the index
case is/was employed but also other establishments in the industry to
identify similar cases has the potential to facilitate timely
identification of emerging hazards'' that are ``both new and newly
recognized.'' CSTE discussed an example from Michigan, where a State
agency identified several deaths associated with bathtub refinishing,
raising new concerns about the hazards of chemical strippers used in
this process. Subsequent review of OSHA IMIS data identified 13 deaths
associated with bathtub refinishing in a 12-year period.\6\ These
findings from the State and Federal databases together led to the
development of educational information about the hazards associated
with tub refinishing and approaches to reducing risks; this material
was disseminated nationwide to companies and workers in the industry.
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    \6\ The OSHA Integrated Management Information System (IMIS) was
designed in 1991 as an information resource for in-house use by OSHA
staff and management, and by State agencies which carry out
federally approved OSHA programs. It was replaced by the OSHA
Information System (OIS) as the primary repository of OSHA's data,
starting in 2012.
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     Targeting establishments for preventive outreach in our
communities: ``Public health investigations of work-related incidents
result not only in prevention recommendations to those involved in the
incident, but in case studies which allow us to then take lessons
learned and disseminate these lessons broadly to other stakeholders.
The availability of information on high-risk establishments will allow
for more targeted and efficient information dissemination. The ability
to identify lower risk establishments may also provide new
opportunities to learn from employers who are implementing best
practices--and potentially to help identify under-reporters. The
availability of establishment specific information offers the
opportunity to incorporate occupational health concerns in community
health planning, which is increasingly providing the basis for setting
community health and prevention priorities.''
     Improvement of data quality and use of the data:
``Observations from interviews with OSHA record-keepers in Washington
State suggest that incomplete OSHA records arise in part from lack of
knowledge or confusion on the part of some employers about how to
accurately and consistently record OSHA reportable cases and from poor
employer prioritization of this task. . . . Electronic data collection
and the subsequent public release of the data are means to improve data
quality, knowledge, and compliance with OSHA recordkeeping
requirements. Electronic collection of data offers the opportunity to
provide employers with electronic tools (e.g., prompts, definitions,
consistency edits, and industry-specific drop-down lists) to improve
the quality of the data reported. Standardized feedback to
establishments and potential reports of establishment-specific data
would promote the use of the data by employers and workers to set
health and safety priorities and monitor progress in reducing workplace
risks.''
     Improvements in Medical Care: ``This record keeping rule,
by facilitating the diagnosis of work-related conditions, will allow
for better diagnosis and management of workplace illnesses by health
care providers in the community, thereby contributing to a reduction in
morbidity, absenteeism, and health care costs.'' CSTE described an
example from Massachusetts, which has a sharps injury prevention
control program. This program supplements OSHA's bloodborne pathogens
standard by requiring hospitals to report select data from the OSHA-
required log of sharps injuries annually to the Massachusetts
Department of Public Health (MDPH). In recent years, data from all
hospitals, which range in size from less than 150 to over 20,000
employees, have been submitted through a secure electronic
transmission. Annual hospital-specific data and statewide reports
prepared by MDPH provide information on patterns of sharps injuries and