36494 Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Proposed Rules 

11 Id. at 66621 and 66632. 

12Protection of Collateral of Counterparties to 

Uncleared Swaps; Treatment of Securities in a 

Portfolio Margining Account in a Commodity 

Broker Bankruptcy, 75 FR 75432, 75437 (proposed 

Dec. 3, 2010). 

13 I also believe that the Commission can respond 

to specific burdens identified by SDs and MSPs by, 

for example, codifying staff interpretive guidance. 

See, e.g. Letter from the Financial Services 

Roundtable at 56 (Sept. 30, 2017) (urging the 

Commission to codify its interpretation in CFTC 

Staff Letter No. 14–132 with respect to SDs’ ability 

to rely on negative consent), https://

comments.cftc.gov/PublicComments/ 

ViewComment.aspx?id=61427&SearchText=. 

14For example, through the use of additional 

clauses in customer onboarding or relationship 

documentation as a means to append the required 

notification and disclosures to each new swap 

confirmation thereby ensuring and simultaneously 

documenting that the counterparty is notified of 

their right to require segregation at least at the 

beginning of each swap transaction. 

15See CFTC Staff Letter No. 14–132, supra note 

9. 

the election to segregate indicates that 

subpart L is largely superfluous. 

While it may be true that swap 

counterparties have not elected segregation 

in droves, CEA section 4s(l) and subpart L are 

not intended to advance any particular 

outcome. Rather they concern the rights of 

counterparties to SDs and MSPs and aim to 

increase the safety in the market for 

uncleared swaps by creating a selfeffectuating requirement for the segregation 

of counterparty initial margin in an entity 

legally separate from the SD or MSP.11 As 

previously noted by the Commission in 

proposing subpart L, a goal of the regulation 

was to ‘‘increase the likelihood that any lack 

of use of segregated collateral accounts by 

uncleared swaps counterparties is the result 

of genuine choices by counterparties and 

reduce the likelihood that it is the result of 

inertia, market power, or other market 

imperfections.’’ 12 Indeed, based on some of 

the preamble discussion, it may be that we 

should consider the possibility that swap 

counterparties are not electing segregation 

specifically because the current system of 

annual notification does not provide them 

adequate notice of their ongoing right to 

segregation. If that is the case, the 

appropriate Commission response may be 

more (or clearer) notification, rather than the 

reduction in notification proposed today. 

I am concerned that the Commission’s 

proposal could undermine the right to 

segregation as well as Congressional intent by 

removing the periodic notification and 

minimal disclosures currently required by 

subpart L. I believe there are prescriptive 

elements of subpart L that can be removed 

with little impact to counterparties.13

However, I am concerned by the Proposal’s 

reliance on representations by SDs and 

unverified assumptions regarding 

counterparty behavior to justify regulatory 

rollbacks in the absence of further 

examination of whether and how the manner 

in which the annual notice requirement is 

currently implemented has contributed to 

claims of confusion and burden. I am also 

concerned that the Proposal may discourage 

commenters from suggesting alternative 

means of complying with the current 

language in Regulation 23.701(a) which may 

better preserve Congressional intent.14

I am similarly concerned that the 

Proposal’s removal of the requirement in 

Regulation 23.703 that limits the investment 

of initial margin segregated pursuant to 

subpart L to be invested consistent with 

Commission Regulation 1.25 is a knee-jerk 

response to a single Project KISS comment 

letter that ignores current practice and 

presupposes that the rollback will encourage 

more counterparties to elect to segregate 

pursuant to subpart L, which, as stated 

above, is not the goal of the statute or 

implementing regulation. While I am not 

opposed to permitting greater flexibility with 

regard to the investment of initial margin, I 

would have preferred that the Commission 

seek additional information regarding 

whether and how the current limitations in 

Regulation 23.703 have impacted 

counterparties and their decision making 

under subpart L before proposing alternative 

regulatory language. 

I commend the Commission and its staff 

for engaging through Project KISS in efforts 

to identify and reduce unnecessary burdens 

in the Commission regulations. I appreciate 

staff’s consideration and inclusion of several 

of my suggested edits to this Proposal. To be 

clear, I believe the Proposal provides for 

many sound improvements to subpart L that 

respond to ongoing concerns and confusion 

created by the finalization of the CFTC and 

Prudential Regulator Margin Rules and CFTC 

interpretive guidance.15 However, where the 

Proposal aims to strip out regulatory 

provisions that the Commission previously 

determined were essential to effectuating the 

language and purpose of CEA section 4s(l), I 

believe the Commission may be engaging in 

shortsighted and unnecessary rollbacks to the 

detriment of the swap counterparties subpart 

L is intended to protect. 

[FR Doc. 2018–16176 Filed 7–27–18; 8:45 am] 

BILLING CODE 6351–01–P 

DEPARTMENT OF LABOR 

Occupational Safety and Health 

Administration 

29 CFR Part 1904 

[Docket No. OSHA–2013–0023] 

RIN 1218–AD17 

Tracking of Workplace Injuries and 

Illnesses 

AGENCY: Occupational Safety and Health 

Administration (OSHA), Labor. 

ACTION: Proposed rule. 

SUMMARY: This proposed rule would 

amend OSHA’s recordkeeping 

regulation by rescinding the 

requirement for establishments with 250 

or more employees to electronically 

submit information from OSHA Forms 

300 and 301. These establishments will 

continue to be required to submit 

information from their Form 300A 

summaries. OSHA is amending its 

recordkeeping regulations to protect 

sensitive worker information from 

potential disclosure under the Freedom 

of Information Act (FOIA). OSHA has 

preliminarily determined that the risk of 

disclosure of this information, the costs 

to OSHA of collecting and using the 

information, and the reporting burden 

on employers are unjustified given the 

uncertain benefits of collecting the 

information. OSHA believes that this 

proposal maintains safety and health 

protections for workers while also 

reducing the burden to employers of 

complying with the current rule. OSHA 

seeks comment on this proposal, 

particularly on its impact on worker 

privacy, including the risks posed by 

exposing workers’ sensitive information 

to possible FOIA disclosure. In addition, 

OSHA is proposing to require covered 

employers to submit their Employer 

Identification Number (EIN) 

electronically along with their injury 

and illness data submission. 

DATES: Comments must be submitted by 

September 28, 2018. 

ADDRESSES: You may submit comments, 

identified by docket number OSHA– 

2013–0023, or regulatory information 

number (RIN) 1218–AD17, by any of the 

following methods: 

Electronically: You may submit 

comments electronically at https://

www.regulations.gov/, which is the 

federal e-rulemaking portal. Follow the 

instructions on the website for making 

electronic submissions; 

Fax: If your submission, including 

attachments, does not exceed 10 pages, 

you may fax it to the OSHA docket 

office at (202) 693–1648; 

Regular mail, express mail, hand 

delivery, or messenger/courier service 

(hard copy): You may submit your 

materials to the OSHA Docket Office, 

Docket No. OSHA–2013–0023, Room N– 

3653, U.S. Department of Labor, 200 

Constitution Avenue NW, Washington, 

DC 20210; telephone: (202) 693–2350 

(TTY (887) 889–5627). OSHA’s Docket 

Office accepts deliveries (hand 

deliveries, express mail, and messenger/ 

courier service) from 10 a.m. to 3 p.m. 

ET, weekdays. 

Instructions for submitting comments: 

All submissions must include the 

docket number (Docket No. OSHA– 

2013–0023) or the RIN (RIN 1218– 

AD17) for this rulemaking. Because of 

security-related procedures, submission 

by regular mail may result in significant 

delay. Please contact the OSHA docket 

office (telephone: (202) 693–2350; 

email: technicaldatacenter@dol.gov) for 


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1OSHA’s regulation at 29 CFR 1904.35(b)(2) 

requires employers to provide employees, former 

employees, their personal representatives, and their 

authorized employee representatives access to the 

OSHA Form 300. Employers must include the 

names of the employees with recorded cases, except 

for certain ‘‘privacy concern cases’’ as specified in 

29 CFR 1904.29(b)(6)–(9). In addition, OSHA’s 

regulation at 29 CFR 1904.29(b)(10) requires 

employees to remove or hide employee names and 

other personally identifying information when 

voluntarily disclosing the Form 300 or 301 to 

persons other than government representatives, 

employees, former employees or authorized 

representatives, except when disclosing the forms 

to an auditor or consultant hired by the employer 

to evaluate the safety and health program, or to the 

extent necessary for processing a claim for workers’ 

compensation or other insurance benefits, or to a 

public health authority or law enforcement agency 

per 45 CFR 164.512. Finally, for the Form 301, 

OSHA’s regulation at 29 CFR 1904.35(b)(2)(v) 

requires employers to provide an employee, former 

employee, or the employee’s personal 

representative access to the Form 301 Incident 

Report describing an injury or illness to that 

employee or former employee; for authorized 

employee representatives, employers are required to 

provide the information in ‘‘tell us about the case’’ 

for any incident report and to remove all of the 

other information. 

information about security procedures 

for making submissions by hand 

delivery, express delivery, and 

messenger or courier service. 

All comments, including any personal 

information you provide, are placed in 

the public docket without change and 

will be made available online at https:// 

www.regulations.gov. Therefore, OSHA 

cautions you about submitting personal 

information such as Social Security 

Numbers and birthdates. 

Docket: To read or download 

submissions in response to this Federal 

Register document, go to docket number 

OSHA–2013–0023, at https://

www.regulations.gov. All submissions 

are listed in the https://

www.regulations.gov index. However, 

some information (e.g., copyrighted 

material) is not publicly available to 

read or download through that website. 

All submissions, including copyrighted 

material, are available for inspection at 

the OSHA docket office. 

Electronic copies of this Federal 

Register document are available at 

https://www.regulations.gov. This 

document, as well as news releases and 

other relevant information, is available 

at OSHA’s website at http://

www.osha.gov. 

FOR FURTHER INFORMATION CONTACT:

For press inquiries: Frank Meilinger, 

OSHA Office of Communications, 

telephone: (202) 693–1999; email: 

meilinger.francis2@dol.gov. 

For general and technical information 

on the proposed rule: Amanda Edens, 

Director, Directorate of Technical 

Support and Emergency Management, 

telephone: (202) 693–2300; email: 

edens.mandy@dol.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background 

A. Introduction 

B. Regulatory History 

II. Legal Authority 

III. Summary and Explanation of the 

Proposed Rule 

A. Description of Proposed Revisions to 

Section 1904.41 

1. Section 1904.41(a)(1)—Annual 

Electronic Submission of OSHA Part 

1904 Records by Establishments With 

250 or More Employees 

2. Section 1904.41, Paragraphs (b)(1)–(8)— 

Implementation 

3. Employer Identification Number 

B. Additional Questions 

IV. Preliminary Economic Analysis and 

Regulatory Flexibility Certification 

A. Introduction 

B. Cost Savings 

C. New Costs (From the EIN Collection) 

D. Net Cost Savings 

E. Benefits 

F. Economic Feasibility 

G. Regulatory Flexibility Certification 

V. Office of Management and Budget (OMB) 

Review Under the Paperwork Reduction 

Act of 1995 

VI. Unfunded Mandates 

VII. Federalism 

VIII. State Plan States 

IX. Public Participation 

A. Public Submissions 

B. Access to Docket 

Amendments to Part 1904 

References and Exhibits 

In this preamble, OSHA references 

documents in Docket No. OSHA–2013– 

0023, the docket for this rulemaking. 

The docket is available at https://

www.regulations.gov, the Federal erulemaking Portal. 

References to documents in this 

rulemaking docket are given as ‘‘Ex.’’ 

followed by the document number. The 

document number is the last sequence 

of numbers in the Document ID Number 

on https://www.regulations.gov. 

The exhibits in the docket, including 

public comments, supporting materials, 

meeting transcripts, and other 

documents, are listed on https://

www.regulations.gov. All exhibits are 

listed in the docket index on https://

www.regulations.gov. However, some 

exhibits (e.g., copyrighted material) are 

not available to read or download from 

that web page. All materials in the 

docket are available for inspection at the 

OSHA Docket Office, Room N–3653, 

U.S. Department of Labor, 200 

Constitution Avenue NW, Washington, 

DC 20210; telephone (202) 693–2350. 

I. Background 

A. Introduction 

OSHA’s regulation at 29 CFR part 

1904 requires employers to collect a 

variety of information on occupational 

injuries and illnesses. Much of this 

information may be sensitive for 

workers, including descriptions of their 

injuries and the body parts affected. 

Under OSHA’s regulation, employers 

with more than 10 employees in most 

industries must keep those records at 

their establishments. Employers covered 

by these rules must record each 

recordable employee injury and illness 

on an OSHA Form 300, the ‘‘Log of 

Work-Related Injuries and Illnesses,’’ or 

equivalent. Covered employers must 

also prepare a supplementary OSHA 

Form 301, the ‘‘Injury and Illness 

Incident Report’’ or equivalent, to 

provide additional details about each 

case recorded on the OSHA Form 300. 

OSHA requires employers to provide 

these records to others under certain 

circumstances, but imposes limits on 

the disclosure of personally identifying 

information.1 Finally, at the end of each 

year, these employers are required to 

prepare a summary report of all injuries 

and illnesses on the OSHA Form 300A, 

the ‘‘Summary of Work-Related Injuries 

and Illnesses,’’ and post the form in a 

visible location in the workplace. 

Form 301 in particular requires the 

collection of much sensitive information 

about each individual worker’s joblinked illness or injury, information an 

employer must collect with or without 

the worker’s consent. While some of the 

information is likelier to be regarded as 

particularly sensitive—namely, 

descriptions of injuries and the body 

parts affected—most of the form’s 

questions seek answers that should not 

be lightly disclosed, including: 

• Was employee treated in an 

emergency room? 

• Was employee hospitalized 

overnight as an in-patient? 

• Date of birth. 

• Date of injury. 

• What was the employee doing just 

before the incident occurred? Describe 

the activity, as well as the tools, 

equipment, or material the employee 

was using. Be specific. Examples: 

‘‘climbing a ladder while carrying 

roofing materials’’; ‘‘spraying chlorine 

from hand sprayer’’; ‘‘daily computer 

key-entry.’’ 

• What happened? Tell us how the 

injury occurred. Examples: ‘‘When 

ladder slipped on wet floor, worker fell 

20 feet’’; ‘‘Worker was sprayed with 

chlorine when gasket broke during 

replacement’’; ‘‘Worker developed 

soreness in wrist over time.’’ 

• What was the injury or illness? Tell 

us the part of the body that was affected 


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and how it was affected; be more 

specific than ‘‘hurt,’’ ‘‘pain,’’ or ‘‘sore.’’ 

Examples: ‘‘strained back’’; ‘‘chemical 

burn, hand’’; ‘‘carpal tunnel syndrome.’’ 

• What object or substance directly 

harmed the employee? Examples: 

‘‘concrete floor’’; ‘‘chlorine’’; ‘‘radial 

arm saw . . . ’’ 

Form 300 requires employers to log 

much of this individual information— 

notably, descriptions of injuries and the 

body parts affected—for each individual 

worker and incident. Form 300A, by 

contrast, merely summarizes incident 

data without any traceable connection 

to individual workers. 

In the May 2016 final rule (81 FR 

29624), the recordkeeping regulation 

was revised to require establishments 

with 250 or more employees to 

electronically submit information from 

the OSHA Forms 300, 300A, and 301 to 

OSHA annually. Establishments in 

certain industries with 20–249 

employees are required only to 

electronically submit information from 

only the OSHA Form 300A—the 

summary form. This proposed rule 

would amend OSHA’s recordkeeping 

regulation by rescinding the 

requirement for establishments with 250 

or more employees to electronically 

submit information from the OSHA 

Forms 300 and 301—the individual 

forms. 

As discussed below, OSHA proposes 

this amendment to the 2016 rule to 

protect worker privacy, having reevaluated the utility of routinely 

collecting Form 300 and 301 data. The 

injury and illness data electronically 

submitted to OSHA from Form 300A 

(which submission the 2016 rule 

requires, and which this proposal would 

not change) gives OSHA a great deal of 

information to use in identifying highhazard establishments for enforcement 

targeting. To that end, OSHA has 

designed a targeted enforcement 

mechanism for industries experiencing 

higher rates of injuries and illnesses 

based on the summary data. By contrast, 

OSHA has provisionally determined 

that electronic submission of Forms 300 

and 301 adds uncertain enforcement 

benefits, while significantly increasing 

the risk to worker privacy, considering 

that those forms, if collected by OSHA, 

could be found disclosable under FOIA. 

In addition, to gain (uncertain) 

enforcement value from the casespecific data, OSHA would need to 

divert resources from other priorities, 

such as the utilization of Form 300A 

data, which OSHA’s experience has 

shown to be useful. 

OSHA seeks comment on this 

proposal. In addition, OSHA asks for 

public comment on whether to require 

covered employers to submit their EIN 

along with their injury and illness data 

submission. 

This proposed rule is expected to be 

an E.O. 13771 deregulatory action, with 

annualized net cost savings estimated at 

$8.2 million. Details on OSHA’s cost 

and cost savings estimates for this 

proposed rule can be found in the 

Preliminary Economic Analysis (PEA). 

Under the current recordkeeping rule, 

the initial deadline for electronic 

submission of information from OSHA 

Forms 300 and 301 by covered 

establishments with 250 or more 

employees was July 1, 2018. However, 

OSHA will not enforce this deadline 

without further notice while this 

rulemaking is underway. 

B. Regulatory History 

OSHA’s regulations on recording and 

reporting occupational injuries and 

illnesses (29 CFR part 1904) were first 

issued in 1971 (36 FR 12612, July 2, 

1971). These regulations require the 

recording of work-related injuries and 

illnesses that involve death, loss of 

consciousness, days away from work, 

restriction of work, transfer to another 

job, medical treatment other than first 

aid, or diagnosis of a significant injury 

or illness by a physician or other 

licensed health care professional (29 

CFR 1904.7). 

On July 29, 1977, OSHA amended 

these regulations to partially exempt 

businesses having ten or fewer 

employees during the previous calendar 

year from the requirement to record 

occupational injuries and illnesses (42 

FR 38568). On December 28, 1982, 

OSHA amended these regulations to 

partially exempt establishments in 

certain lower-hazard industries from the 

requirement to record occupational 

injuries and illnesses (47 FR 57699). 

OSHA also amended the recordkeeping 

regulations in 1994 (Reporting of 

Fatality or Multiple Hospitalization 

Incidents, 59 FR 15594) and 1997 

(Reporting Occupational Injury and 

Illness Data to OSHA, 62 FR 6434). 

Under the authority in Section 1904.41 

added by the 1997 final rule, OSHA 

began requiring certain employers to 

submit only their 300A data to OSHA 

annually through the OSHA Data 

Initiative (ODI). The purpose of the ODI 

was to collect data on injuries and acute 

illnesses attributable to work-related 

activities in the private sector from 

approximately 80,000 establishments in 

selected high-hazard industries. The 

Agency used these data to calculate 

establishment-specific injury and illness 

rates and, in combination with other 

data sources, to target enforcement and 

compliance assistance activities. 

On January 19, 2001, OSHA issued a 

final rule amending its requirements for 

the recording and reporting of 

occupational injuries and illnesses (29 

CFR parts 1904 and 1902), along with 

the forms employers use to record those 

injuries and illnesses (66 FR 5916). The 

final rule also updated the list of 

industries that were partially exempt 

from recording occupational injuries 

and illnesses. 

On September 18, 2014, OSHA again 

amended the regulations to require 

employers to report work-related 

fatalities and severe injuries—in-patient 

hospitalizations, amputations, and 

losses of an eye—to OSHA and to allow 

electronic reporting of these events (79 

FR 56130). The final rule also revised 

the list of industries that are partially 

exempt from recording occupational 

injuries and illnesses. 

On May 12, 2016, OSHA amended the 

regulations on recording and reporting 

occupational injuries and illness to 

require employers to annually submit 

injury and illness information that 

employers were already required to 

keep under part 1904 (81 FR 29624) to 

OSHA electronically. Establishments 

with 250 or more employees in 

industries that are routinely required to 

keep records are required to 

electronically submit information from 

their OSHA Forms 300, 300A, and 301 

to OSHA or OSHA’s designee once a 

year, and establishments with 20 to 249 

employees in certain designated 

industries are required to electronically 

submit information from their OSHA 

annual summary (Form 300A) to OSHA 

or OSHA’s designee once a year. In 

addition, that final rule requires 

employers, upon notification, to 

electronically submit information from 

part 1904 recordkeeping forms to OSHA 

or OSHA’s designee. These provisions 

became effective on January 1, 2017. 

On November 24, 2017, OSHA 

amended the recordkeeping regulation 

to extend the initial submission 

deadline for 2016 Form 300A data 

described in 29 CFR 1904.41(c)(1) from 

July 1, 2017, to December 15, 2017 (82 

FR 55761). 

II. Legal Authority 

OSHA is issuing this proposed rule 

pursuant to authority expressly granted 

by sections 8 and 24 of the Occupational 

Safety and Health Act (the ‘‘OSH Act’’ 

or ‘‘Act’’) (29 U.S.C. 657, 673). Section 

8(c)(1) of the Act requires each 

employer to ‘‘make, keep and preserve, 

and make available to the Secretary [of 

Labor] or the Secretary of Health and 

Human Services, such records regarding 

his activities relating to this Act as the 

Secretary . . . may prescribe by 


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regulation as necessary or appropriate 

for the enforcement of this Act or for 

developing information regarding the 

causes and prevention of occupational 

accidents and illnesses’’ (29 U.S.C. 

657(c)(1)). Section 8(c)(2) directs the 

Secretary to prescribe regulations 

‘‘requiring employers to maintain 

accurate records of, and to make 

periodic reports on, work-related 

deaths, injuries and illnesses other than 

minor injuries requiring only first aid 

treatment and which do not involve 

medical treatment, loss of 

consciousness, restriction of work or 

motion, or transfer to another job’’ (29 

U.S.C. 657(c)(2)). Finally, section 8(g)(2) 

of the OSH Act broadly empowers the 

Secretary to ‘‘prescribe such rules and 

regulations as he may deem necessary to 

carry out [his] responsibilities under 

this Act’’ (29 U.S.C. 657(g)(2)). 

Section 24 of the OSH Act (29 U.S.C. 

673) contains a similar grant of 

authority. This section requires the 

Secretary to ‘‘develop and maintain an 

effective program of collection, 

compilation, and analysis of 

occupational safety and health 

statistics’’ and ‘‘compile accurate 

statistics on work injuries and illnesses 

which shall include all disabling, 

serious, or significant injuries and 

illnesses’’ (29 U.S.C. 673(a)). Section 24 

also requires employers to ‘‘file such 

reports with the Secretary as he shall 

prescribe by regulation’’ (29 U.S.C. 

673(e)). These reports are to be based on 

‘‘the records made and kept pursuant to 

section 8(c) of this Act’’ (29 U.S.C. 

673(e)). 

Further support for the Secretary’s 

authority to require employers to keep 

and submit records of work-related 

illnesses and injuries can be found in 

the Congressional Findings and Purpose 

at the beginning of the OSH Act (29 

U.S.C. 651). In this section, Congress 

declares the overarching purpose of the 

Act is ‘‘to assure so far as possible every 

working man and woman in the Nation 

safe and healthful working conditions’’ 

(29 U.S.C. 651(b)). One of the ways in 

which the Act is meant to achieve this 

goal is ‘‘by providing for appropriate 

reporting procedures . . . [that] will 

help achieve the objectives of this Act 

and accurately describe the nature of the 

occupational safety and health 

problem’’ (29 U.S.C. 651(b)(12)). 

Importantly, the statute does not require 

this information to be reported to 

OSHA. 

The OSH Act authorizes the Secretary 

of Labor to issue two types of 

occupational safety and health rules: 

Standards and regulations. Standards 

aim to correct particular identified 

workplace hazards, while regulations 

further the general enforcement and 

detection purposes of the OSH Act (see 

Workplace Health & Safety Council v. 

Reich, 56 F.3d 1465, 1468 (D.C. Cir. 

1995) (citing Louisiana Chemical Ass’n 

v. Bingham, 657 F.2d 777, 781–82 (5th 

Cir. 1981)); United Steelworkers of 

America v. Auchter, 763 F.2d 728, 735 

(3d Cir. 1985)). Recordkeeping 

requirements promulgated under the 

Act are characterized as regulations (see 

29 U.S.C. 657 (using the term 

‘‘regulations’’ to describe recordkeeping 

requirements)). An agency may revise a 

prior rule if it provides a reasoned 

explanation for the change. See Motor 

Vehicle Mfrs. Ass’n v. State Farm Mut. 

Auto. Ins. Co., 463 U.S. 29, 42 (1983). 

III. Summary and Explanation of the 

Proposed Rule 

OSHA proposes to protect worker 

privacy by ending the electronic 

collection of case-specific forms (which 

OSHA has preliminarily determined 

adds uncertain enforcement value, but 

poses a potential privacy risk under 

FOIA) while continuing the collection 

of summary forms (which adds 

significant enforcement value, with 

little privacy risk). OSHA has 

reevaluated the utility of the Form 300 

and 301 data for OSHA enforcement 

efforts and preliminarily determined 

that its (uncertain) enforcement value 

does not justify the reporting burden on 

employers, the burden on OSHA to 

collect, process, analyze, distribute, and 

programmatically apply the data, and— 

especially—the risks posed to worker 

privacy. Specifically, OSHA is 

proposing to amend its recordkeeping 

regulations by removing the part 1904 

requirement that became effective on 

January 1, 2017, for the annual 

electronic submission of injury and 

illness information contained in OSHA 

Forms 300 and 301. This amendment 

would avoid the risks posed by making 

those forms into government records 

that could be found disclosable under 

FOIA. 

OSHA is only seeking comment on 

the proposed changes to § 1904.41, and 

not on any other aspects of part 1904. 

A. Description of Proposed Revisions to 

Section 1904.41 

1. Section 1904.41(a)(1)—Annual 

Electronic Submission of Part 1904 

Records by Establishments With 250 or 

More Employees 

OSHA proposes to amend 

§ 1904.41(a)(1) to remove the 

requirement for establishments with 250 

or more employees that are required to 

routinely keep injury and illness records 

to electronically submit information 

from the OSHA Form 300 (Log of WorkRelated Injuries and Illnesses) and 

OSHA Form 301 (Injury and Illness 

Incident Report) to OSHA or OSHA’s 

designee once a year. Under the 

proposed rule, § 1904.41(a)(1) would 

only require these establishments to 

electronically submit information from 

the OSHA Form 300A (Summary of 

Work-Related Injuries and Illnesses). As 

explained below, OSHA believes that 

this change would better protect worker 

privacy from the risk of FOIA 

disclosure, while retaining the lion’s 

share of the enforcement benefits 

realized by the 2016 rule. 

a. Collecting Forms 300 and 301’s 

Individual Injury and Illness Data Risks 

Worker Privacy 

Electronic submission of Forms 300 

and 301 puts the federal government in 

the position of collecting information 

that workers may deem quite sensitive, 

including descriptions of their injuries 

and the body parts affected. OSHA has 

preliminarily determined that its 

collection of these individual forms’ 

information poses a non-trivial risk of 

compelled disclosure—endangering 

worker privacy—under FOIA. 

As records in federal possession, 

Forms 300, 300A, and 301 could be 

subject to disclosure under FOIA if a 

court determines that no exemptions to 

FOIA apply. Although the Department 

believes that the information in these 

forms should be held exempt under 

FOIA, there remains a meaningful risk 

that a court may ultimately disagree and 

require disclosure. That risk remains so 

long as there is a non-trivial chance that 

any court in any of the nation’s 94 

federal judicial districts might issue a 

final disclosure order after the 

exhaustion of all available appeals. In 

the Department’s view, that risk is not 

a reason to stop collecting Form 300A 

summaries, because their collection 

offers significant enforcement value 

with little privacy risk. However, OSHA 

has re-evaluated the utility of routinely 

collecting the Form 300 and 301 data for 

enforcement purposes, given that it has 

already designed a targeted enforcement 

mechanism using the summary data, 

and given the resources that would be 

required to collect, process, analyze, 

distribute, and programmatically apply 

the case-specific data in a meaningful 

way. Therefore, OSHA believes that the 

risk of disclosure under FOIA is a 

persuasive reason not to collect 

individual case information from Forms 

300 and 301, as that collection offers 

only uncertain enforcement value while 

putting workers’ privacy at risk. 

Nor is that risk speculative. In 2017, 

an organization invoked FOIA to request 


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2The gathering of such data also may incentivize 

cyber-attacks on the Department’s IT system. For 

example, on August 14, 2017, OSHA received an 

alert from the United States Computer Emergency 

Readiness Team (US–CERT) in the Department of 

Homeland Security that indicated a potential 

compromise of user information for OSHA’s Injury 

Tracking Application (ITA). The ITA was taken offline as a precaution. A complete scan was 

conducted by the National Information Technology 

Center (NITC). The NITC confirmed that there was 

no breach of the data in the ITA and that no 

information in the ITA was compromised. Public 

access to the ITA was restored on August 25, 2017. 

While this episode showed the security provisions 

of the ITA to work as designed, it also demonstrated 

that such a large data collection will inevitably 

encounter malware. 

3OSHA expects many more establishments to 

respond with 2017 summary data this year, for at 

least two reasons. First, OSHA has analyzed the 

responses for 2016, has identified thousands of nonresponders who were obligated to respond for 2016, 

and is in the process of informing them of their 

obligation to respond for 2017. Second, OSHA 

recently discovered that employers did not receive 

clear notice of their obligation to respond for 2016, 

if they were located in state plan states that had not 

completed adoption of their own state rules. In 

2018, OSHA issued a correction clarifying that 

those employers were indeed obligated to submit 

Form 300A data for 2017. 

4See ‘‘PEA calculations,’’ Ex. 2067. 

that the Department produce 

electronically-submitted information 

from Forms 300, 300A, and 301. The 

Department explained to the requester 

that it had not begun collecting Forms 

300 and 301, and that Form 300A is 

exempt from disclosure under FOIA. 

The requester then sued the Department 

to compel disclosure of electronic 

information from Form 300A (and 

presumably would have demanded 

production of information from Forms 

300 and 301, had the Department started 

collecting them). Although the 

Department strongly believes that Form 

300A is exempt from disclosure under 

FOIA, the plaintiff’s complaint is nonfrivolous (cf. Fed. R. Civ. P. 11). It is 

accordingly possible that the 

adjudicating court could order 

disclosure of information in Form 300A. 

After the exhaustion of any appeals, that 

order would establish a precedent that 

other courts may find persuasive in 

potential future litigation over 

information in Forms 300 and 301. 

That risk of potential compelled 

disclosure is illustrated by a case in 

which the Department was ordered to 

disclose OSHA records collecting its 

individual inspectors’ exposures to 

beryllium. Finkel v. U.S. Dep’t of Labor, 

No. 05–5525, 2007 WL 1963163 (D.N.J. 

June 29, 2007). In that case, the 

Department produced de-identified test 

results, but the court ultimately 

determined that more identifying 

information needed to be disclosed, 

despite FOIA’s exemption for 

‘‘information . . . in personnel, medical 

or similar files . . . [whose] release 

would constitute a clearly unwarranted 

invasion of personal privacy.’’ Arieff v. 

U.S. Dep’t of Navy, 712 F.2d 1462, 1466 

(D.C. Cir. 1983), quoted in Finkel, 2007 

WL 1963163, at *8. While the 

Department believes that Finkel would 

be distinguishable from any future cases 

seeking FOIA disclosure of information 

from individual Forms 300 and 301, it 

is reasonably foreseeable that a court 

could find it persuasive nonetheless. 

And as the Finkel case suggests, it 

may not be possible to fully redact all 

identifying information in a way that 

would eliminate privacy risk. Releasing 

case-specific data to a member of the 

public could result in the inadvertent 

release of personally identifiable 

information (PII) or re-identification of 

the data with a particular individual. 

Although automated systems exist to 

scrub PII from the data (see ‘‘Text DeIdentification For Privacy Protection: A 

Study of its Impact on Clinical Text 

Information Content,’’ Ste ́phane M. 

Meystre et al., Journal of Biomedical 

Informatics 50 (2014) 142–150, Ex. 

2061), it is not possible to guarantee the 

non-release of PII. Simson L. Garfinkel 

states ‘‘de-identification approaches 

based on suppressing or generalizing 

specific fields in a database cannot 

provide absolute privacy guarantees, 

because there is always a chance that 

the remaining data can be re-identified 

using an auxiliary dataset.’’ (see ‘‘DeIdentification of Personal Information,’’ 

p. 5, Simson L. Garfinkel, NISTIR 8053, 

October 2015, Ex. 2060). Similarly, 

Mehmet Kayaalp observed, ‘‘The deidentification process minimizes the 

risk of re-identification but has no claim 

to make it impossible.’’ (see ‘‘Modes of 

De-identification,’’ p. 2, Mehmet 

Kayaalp, MD, Ph.D., U.S. National 

Library of Medicine, National Institutes 

of Health, 2017, Ex. 2062). In addition, 

de-identification is not the same as 

anonymization. That is, even after all PII 

has been removed, there is the chance 

that somebody could re-identify some of 

the data by linking the fully deidentified data back to the specific 

person. 

Unless the U.S. Supreme Court (or 

sufficient circuit-court precedent, at 

least) were to definitively affirm that the 

information in Forms 300 and 301 is 

exempt from FOIA disclosure, there 

remains a real risk that the private, 

sensitive information from those forms 

could be disclosed regardless of the 

Department’s attempts to keep it 

private.2 In the Department’s view, that 

risk to worker privacy is unacceptable. 

b. Collecting Forms 300 and 301 Has 

Uncertain Enforcement Benefits 

As its preamble explains, two of the 

benefits of the May 2016 final rule are 

more effective identification and 

targeting of workplace hazards by OSHA 

and better evaluations of OSHA 

interventions. See 81 FR 29685. 

According to the preamble, 

establishment-specific injury and illness 

data would allow for analyses that were 

not possible with the data available 

before the 2016 rule took effect. The 

establishment-specific data, the 

preamble concluded, would allow 

OSHA to evaluate different types of 

programs, initiatives, and interventions 

in different industries and geographic 

areas, enabling the agency to become 

more effective and efficient. 

OSHA reaffirms those benefits—as to 

the collection of information from the 

summary Form 300A. Collection of the 

summary data gives OSHA the 

information it needs to identify and 

target establishments with high rates of 

work-related injuries and illnesses. 

OSHA has collected summary 300A 

data for 2016 from 214,574 

establishments. With those data, OSHA 

has already designed a targeted 

enforcement mechanism for industries 

experiencing higher rates of injuries and 

illnesses. OSHA plans to further refine 

this approach by using the greater 

volume of 2017 summary data OSHA 

expects to collect, as explained in the 

margin.3

OSHA’s use of summary data has a 

lengthy track record in enforcement, as 

well. Before the 2016 rule, OSHA had 

collected these data for 17 years under 

its OSHA Data Initiative (ODI) and used 

them to identify and target high-rate 

establishments through the Site-Specific 

Targeting (SST) Program. OSHA 

stopped the ODI in 2013 and the SST in 

2014, but those prior programs have still 

given it considerable experience with 

using 300A data for targeting. 

Conversely, OSHA has no prior 

experience with using the case-specific 

Form 300 and 301 data to identify and 

target establishments. OSHA is unsure 

as to how much benefit such data would 

have for targeting, or how much effort 

would be required to realize those 

benefits. OSHA estimates 4 that 

establishments with 250 employees or 

more would report data from 

approximately 775,210 Form 301s 

annually, a total volume three times the 

number of Form 300As whose data was 

uploaded for 2016, while also 

presenting finer-grained information 

than that captured by Form 300A. To 

gain (speculative, uncertain) 

enforcement value from the casespecific data, OSHA would need to 

divert resources from other priorities, 


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5Forms 300 and 301 continue to offer substantial 

enforcement value in the context of on-site 

inspections. Compliance officers routinely review 

them as part of those inspections, and the 

information recorded in those forms can provide a 

roadmap for the compliance officer to focus the 

inspection on the most hazardous aspects of the 

operation. 

6 In addition to the privacy risks and uncertain 

enforcement benefits outlined above, electronic 

collection of the case-specific forms would also 

cause regulated employers and OSHA to incur 

financial costs. As explained in the Preliminary 

Economic Analysis, the annualized cost to 

employers is estimated at approximately $8.7 

million per year. It would also cost OSHA 

significant sums to make case-specific data ready 

for enforcement use. In addition to the $450,000 

required to add functionality to collect these data 

through the Injury Tracking Application (ITA), 

OSHA believes it would require several dedicated 

full-time employees to collect, process, analyze, 

distribute, and programmatically apply these data 

in a meaningful way. 

7Employers covered by the OSH Act must report 

certain severe injuries or in-patient hospitalizations 

within 24 hours, and fatalities within 8 hours, 

chiefly to ‘‘allow OSHA to carry out timely 

investigations of these events as appropriate.’’ 79 

FR 56156. The reported information, which OSHA 

retains in its records, resembles the information 

recorded in the case-specific Form 301. But these 

severe injury/fatality reports constitute a very small 

percentage of the total universe of Form 301s. In 

calendar year 2017, fewer than 16,000 incidents 

were reported. By contrast, OSHA estimates that 

approximately 775,000 cases would be submitted to 

OSHA as a result of the existing regulation. (See the 

Preliminary Economic Analysis.) Requiring 

electronic submission of Form 301 data would 

therefore increase almost 48-fold the universe of 

data potentially susceptible to FOIA. 

8The Department also collects Form 301 data in 

two other ways, but neither offers a material 

precedent for collecting millions of Form 301s’ data 

in a form potentially exposed to FOIA. 

First, BLS collects approximately 250,000 Form 

301s from private establishments for the annual 

Survey of Occupational Injury and Illness. But 

under the Confidential Information Protection and 

Statistical Efficiency Act, BLS is prohibited from 

releasing in identifiable form information acquired 

under a pledge of confidentiality for exclusively 

statistical purposes. 

Second, the forms are occasionally retained in 

inspection case files, primarily in cases where 

OSHA issues a recordkeeping citation and the Form 

301 is needed as evidence. In fiscal year 2017, 

OSHA issued 1,472 recordkeeping citations, 769 of 

which were for failure to report a fatality or severe 

injury, citations which were unlikely to result in 

Form 301 being entered into the case file. So in one 

year, approximately 703 citations represent possible 

cases where OSHA inspectors were likely to have 

retained Form 301 for agency records. 

such as the utilization of Form 300A 

data, which OSHA’s long experience 

has shown to be useful.5

OSHA’s current priority is to assure 

better compliance with the existing 

reporting requirements for severe 

injuries and fatalities and for 300A data, 

and to develop and assess intervention 

programs based on these data. OSHA 

estimates, for example, that over 

100,000 establishments failed to submit 

their 2016 Form 300A data as required 

by the 2016 rule, and is currently taking 

steps aimed at reducing the number of 

non-responders for the 2017 reporting 

year.6 Similarly, in the September 18, 

2014, final rule that updated the severe 

injury reporting requirements under 29 

CFR part 1904.39, OSHA estimated that 

more than 100,000 reports of in-patient 

hospitalizations and amputations would 

be made to the Agency. In calendar year 

2017, fewer than 16,000 incidents were 

reported.7 8 OSHA intends to use 

available data sources (e.g., workers 

compensation records) to identify and 

categorize employers who are noncompliant with the reporting 

requirements. This information can then 

be used to focus training and outreach 

efforts for improving compliance with 

these reporting requirements. But for the 

time being, given OSHA’s enforcement 

focus on its readily-usable 300A and 

severe injury data and its uncertainty 

about the extent of the benefits from 

collecting 300 and 301 data, the 

Department has re-evaluated the utility 

of the Form 300 and 301 data to OSHA 

for enforcement purposes and 

preliminarily determined that its 

(uncertain) enforcement value does not 

justify the reporting burden on 

employers, the burden on OSHA to 

collect, process, analyze, distribute, and 

programmatically apply the data, and— 

especially—the risks posed to worker 

privacy. 

c. Comments 

OSHA welcomes comments from the 

public on the benefits and 

disadvantages of removing the 

requirement for employers with 250 or 

more employees to submit the data from 

OSHA Forms 300 and 301 to OSHA 

electronically on an annual basis, 

including the usefulness of the data for 

enforcement targeting, the burden on 

employers of submitting that data, and 

the risks its collection poses to worker 

privacy. 

2. Section 1904.41, Paragraphs (b)(1)–(8) 

Paragraphs (b)(1) through (8) of 

§ 1904.41 currently address 

implementation of the electronic 

submission requirements for the 

information on OSHA Forms 300, 301, 

and 300A. OSHA is proposing to 

reconcile these provisions with the 

removal of the annual electronic 

submission requirement for the 

information on OSHA Forms 300 and 

301 in proposed § 1904.41(a), as 

explained above. Therefore, the 

proposed provisions in paragraphs 

(b)(1)–(8) would provide for the 

implementation of electronic 

submission requirements only for the 

information on OSHA Form 300A. 

OSHA invites public comment on 

these proposals during the comment 

period. 

3. Employer Identification Number 

OSHA limited the proposed data 

collection in its 2013 NPRM (78 FR 

67254) to Improve Tracking of 

Workplace Injuries and Illnesses to 

records that employers were already 

required to collect under part 1904. 

Accordingly, the May 2016 final rule 

only required the electronic submission 

of such records. These records do not 

include the EIN. 

OSHA now seeks comment on this 

proposal to add a requirement for 

employers to submit their EIN along 

with their injury and illness data 

because the Agency believes such a 

requirement could reduce or eliminate 

duplicative reporting. Collecting EINs 

would increase the likelihood that the 

Bureau of Labor Statistics (BLS) would 

be able to match data collected by 

OSHA under the electronic reporting 

requirements to data collected by BLS 

for the Survey of Occupational Injury 

and Illness (SOII). The BLS records 

contain the EINs for establishments, and 

including the EIN in the OSHA 

collection will increase the accuracy of 

matching the OSHA-collected data to 

the BLS-collected data. The ability to 

accurately match the data is critical for 

evaluating how BLS might use OSHAcollected data to supplement the SOII, 

which in turn would enhance the ability 

of OSHA and other users of the SOII 

data to identify occupational injury and 

illness trends and emerging issues. 

Furthermore, the ability of BLS to match 

the OSHA-collected data also has the 

potential to reduce the burden on 

employers who are required to report 

injury and illness data both to OSHA 

(for the electronic recordkeeping 

requirement) and to BLS (for the SOII). 

OSHA and BLS are also collaborating to 

identify technological approaches to 

reduce respondent burden. This 

collaboration includes exploring 

changes to both data collection systems 

as well as real-time sharing of OSHA 

data with BLS, with the goal of 

streamlining the reporting process for 

respondents covered under both 

collections. 

The SOII is an establishment survey 

and is a comprehensive source of 

national estimates of nonfatal injuries 

and illnesses that occur in the 

workplace. The SOII collects data on 

non-fatal injuries and illnesses for each 

calendar year from a sample of 

employers based on recordable injuries 

and illnesses as defined by OSHA in 29 

CFR part 1904. Using data from the 

survey, BLS estimates annual counts 


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and rates by industry and state for 

workers in private industry and state 

and local government. In addition, the 

SOII provides details about the most 

severe injuries and illnesses (those 

involving days away from work), 

including characteristics of the workers 

involved and details of the 

circumstances surrounding the incident, 

using data collected on Forms 300A and 

301 from the sampled establishments 

(see BLS Handbook of Methods: https:// 

www.bls.gov/opub/hom/soii/home.htm). 

Given the limitations of matching 

establishments across databases, there is 

currently no methodological approach 

to completely match establishments that 

currently submit data under both 

OSHA’s collection of injury and illness 

data under § 1904.41 and the BLS data 

collection for the SOII. BLS cannot 

provide its collected data to OSHA 

because the Confidential Information 

Protection and Statistical Efficiency Act 

of 2002 (Pub. L. 107–347, 116 Stat. 2899 

(2002)) prohibits BLS from releasing 

establishment-specific data to either 

OSHA or the general public. Although 

OSHA can provide the data it collects to 

BLS, without the EIN it is very difficult 

to match the establishments in OSHA’s 

data collection to the establishments in 

BLS’s data collection. Not having the 

EIN increases the resources necessary to 

produce the match and reduces the 

accuracy of the match. 

Including the EIN in the electronic 

reporting to OSHA would improve 

BLS’s ability to accurately match the 

OSHA-collected data with the SOII data. 

After evaluation of the accuracy of the 

data matching, it may be possible for 

BLS to use the OSHA-collected data in 

the generation of occupational injuries 

and illnesses estimates, reducing burden 

on employers. If the EIN is not collected 

and the data from the two sources 

cannot be accurately matched, reducing 

this burden becomes nearly impossible. 

Collecting the EIN would thus accord 

with a recommendation in the 2018 

National Academy of Sciences, 

Engineering, and Medicine report on A 

Smarter National Surveillance System 

for Occupational Safety and Health in 

the 21st Century: ‘‘To avoid duplicate 

reporting, OSHA and BLS should 

integrate data-collection efforts so that 

employers selected in the annual BLS 

sample for SOII but reporting 

electronically to OSHA need not make 

separate reports to BLS’’ (see Ex. 2063). 

Including the EIN as part of electronic 

reporting might also improve the quality 

and utility of the collected data. For 

example, OSHA could use the EIN to 

identify errors such as multiple 

submissions of data from the same 

establishment and to link multiple years 

of data submissions from the same 

establishment. The EIN could also be 

used to match against other databases 

that contain this identifier to add 

additional characteristics to the data. 

For example, submissions could be 

linked to the OSHA Information System 

(OIS) to identify the previous 

enforcement history of the 

establishment when the inspection 

records contain the EIN. 

OSHA notes that EINs do not have the 

same level of protection as Social 

Security numbers. For example, any 

publicly-traded company must put its 

EIN on public filings with the U.S. 

Securities and Exchange Commission. 

Within DOL, the Employee Benefits 

Security Administration (EBSA) 

discloses EINs associated with filings of 

the Annual Returns/Reports of 

Employee Benefit Plans (Form 5500); 

EIN is a searchable field on EBSA’s 

‘‘Form 5500/5000–SF Filing Search’’ 

web page (see https://www.efast.dol.

gov/welcome.html), and the search 

results are listed in ascending order by 

EIN. Other agencies also make EINs 

public in filings, such as the Federal 

Communications Commission’s 

Commission Registration System 

(CORES). Businesses also have to share 

EINs with contractors and clients for tax 

reporting, such as filing an IRS Form 

1099. As a result, DOL has not generally 

withheld EINs from disclosure. 

OSHA invites public comment on the 

advantages and disadvantages of 

requiring employer submission of EINs 

and on whether employers required to 

electronically report information to 

OSHA under part 1904 would consider 

the EIN to be exempt from disclosure, 

either as confidential business 

information or for another reason. 

B. Additional Questions 

OSHA seeks comments and data from 

the public regarding the proposed rule 

to remove the requirement for 

establishments with 250 or more 

employees that are required to routinely 

keep injury and illness records to 

electronically submit information from 

the OSHA Form 300 and 301 and to add 

the requirement for covered 

establishments to submit their EIN. 

More specifically, the following 

questions are relevant to this 

rulemaking: 

1. What risks to worker privacy are 

posed by the electronic collection of 

information from Forms 300 and 301 

from establishments with 250 or more 

workers? How likely are these risks to 

materialize? How could OSHA make 

them less likely, and what resources 

would be required? Given the 

limitations identified above, what are 

the benefits of electronically collecting 

this information? 

2. Besides the Bureau of Labor 

Statistics, what other agencies or 

organizations in the public and private 

sectors use automated coding 

(autocoding) systems for text data in 

data collections? 

3. Besides the Department of Health 

and Human Services, what other 

agencies and organizations in the public 

and private sectors use automated deidentification systems to remove PII 

from text data before making the data 

available to the public? What challenges 

have they faced in using those systems 

to keep PII protected? 

4. Would employers required to 

electronically report information to 

OSHA under part 1904 consider the EIN 

to be exempt from disclosure, either as 

confidential business information or for 

another reason? Are there any 

circumstances where the EIN would be 

considered Personally Identifiable 

Information (PII)? OSHA also seeks 

comments on privacy concerns that 

might arise from employers submitting 

their EIN. 

OSHA is only seeking comment on 

the proposed changes to § 1904.41 in 

this NPRM, and not on any other 

aspects of part 1904. 

IV. Preliminary Economic Analysis and 

Regulatory Flexibility Certification 

A. Introduction 

E.O. 12866 and E.O. 13563 require 

that OSHA estimate the benefits, costs, 

and net benefits of proposed and final 

regulations. Executive Orders 12866 and 

13563, the Regulatory Flexibility Act (5 

U.S.C. 601–612) and the Unfunded 

Mandates Reform Act (UMRA) (2 U.S.C. 

1501–1571) also require OSHA to 

estimate the costs, assess the benefits, 

and analyze the impacts of certain rules 

that the Agency promulgates. Executive 

Orders 12866 and 13563 direct agencies 

to assess all costs and benefits of 

available regulatory alternatives and, if 

regulation is necessary, to select 

regulatory approaches that maximize 

net benefits (including potential 

economic, environmental, public health 

and safety, and other effects; 

distributive impacts; and equity). 

Executive Order 13563 emphasizes the 

importance of quantifying both costs 

and benefits, reducing costs, 

harmonizing rules, and promoting 

flexibility. 

This proposed rule would protect 

worker privacy and reduce costs for 

employers and OSHA by amending 

OSHA’s recordkeeping regulation to 

remove the requirement for the annual 

electronic collection of information 


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9See https://www.bls.gov/oes/current/ 

oes299011.htm. 10See https://www.bls.gov/web/ecec/ececqrtn.txt. 

11See the sensitivity analyses in the Improved 

Tracking FEA (https://www.gpo.gov/fdsys/pkg/FR2017-11-24/pdf/2017-25392.pdf, page 55765) and 

the FEA in support of OSHA’s 2016 final standard 

on Occupational Exposure to Respirable Crystalline 

Silica (81 FR 16285) (https://www.gpo.gov/fdsys/ 

pkg/FR-2016-03-25/pdf/2016-04800.pdf pp.16488- 

16492.). The methodology was modeled after an 

approach used by the Environmental Protection 

Agency. More information on this approach can be 

found at: U.S. Environmental Protection Agency, 

‘‘Wage Rates for Economic Analyses of the Toxics 

Release Inventory Program,’’ June 10, 2002 (Ex. 

2066). This analysis itself was based on a survey of 

several large chemical manufacturing plants: 

Heiden Associates, Final Report: A Study of 

Industry Compliance Costs Under the Final 

Comprehensive Assessment Information Rule, 

Prepared for the Chemical Manufacturers 

Association, December 14, 1989, Ex. 2065. 

from OSHA Forms 300 and 301. OSHA 

estimates that the rule would have net 

cost savings of $8.28 million per year at 

a 3 percent discount rate, including 

$8.23 million per year for the private 

sector and $52,754 per year for the 

government. Annualized at a 7 percent 

discount rate, the proposed rule would 

have net cost savings of $8.25 million 

per year, including $8.18 million per 

year for the private sector and $64,070 

per year for the government. Annualized 

at a perpetual 7 percent discount rate, 

the proposed rule would have net cost 

savings of $8.35 million per year. As 

explained above, OSHA has 

preliminarily determined that the 

electronic collection of information in 

the OSHA 300 and 301 forms poses 

risks to worker privacy and additional 

cost to employers and OSHA that 

outweigh the uncertain enforcement 

benefits of collecting it. 

The proposed rule is not an 

‘‘economically significant regulatory 

action’’ under E.O. 12866 or UMRA (2 

U.S.C. 1532(a)), and it is not a ‘‘major 

rule’’ under the Congressional Review 

Act (CRA) (5 U.S.C. 801 et seq.). The 

Agency estimates that the rulemaking 

imposes far less than $100 million in 

annual economic costs. In addition, it 

does not meet any of the other criteria 

specified by UMRA or CRA for a 

significant regulatory action or major 

rule. 

B. Cost Savings 

For this PEA, OSHA relied on the 

Final Economic Analysis (FEA) in the 

May 2016 final rule (81 FR 29624), 

updated to include more recent data and 

some modifications in OSHA’s 

methodology. OSHA obtained the 

estimated cost of electronic data 

submission by multiplying the 

compensation per hour of the person 

expected to perform the task of 

electronic data submission by the time 

required to submit the data. 

As in the 2016 FEA, OSHA selected 

an employee in the occupation of 

Industrial Health and Safety Specialist 

and Technician as being at the 

appropriate salary level. The mean 

hourly wage for Standard Occupational 

Classification (SOC) code 29–9011, 

Industrial Health and Safety Specialists, 

in the May 2016 data from the BLS 

Occupational Employment Survey 

(OES), was $34.85.9 (The mean hourly 

wage used in the 2016 FEA was $33.88, 

using May 2014 data from OES.) This 

was the raw wage and did not include 

the other fringe benefits that make up 

full hourly compensation or overhead 

costs calculated in this document. 

Through the current electronic 

collection of 300A data, OSHA is 

collecting data on the occupations of 

employees responsible for submitting 

data. This information is collected as a 

part of the sign-up process where 

establishments create their user 

accounts; one of the fields for a new 

user is their job title. OSHA may use 

these data to revise the estimates in the 

final rule. In addition, OSHA welcomes 

comment on whether ‘‘Industrial Health 

and Safety Specialist and Technician’’ is 

the appropriate salary level for the 

employee performing this task. 

The June 2017 data from the BLS 

National Compensation Survey 10

reported a mean fringe benefit factor of 

1.44 for workers in private industry. 

(The mean fringe benefit factor used in 

the 2016 FEA was the same, using 

December 2014 data from the BLS 

National Compensation Survey.) OSHA 

multiplied the mean hourly wage by the 

mean fringe benefit factor to obtain an 

estimated total compensation (wages 

and benefits) for Industrial Health and 

Safety Specialists of $50.18 per hour 

($34.85 × 1.44). The estimated total 

compensation (wages and benefits) used 

in the 2016 FEA was $48.78 per hour, 

so this estimate in this PEA represents 

an increase of 3 percent, due to the 

increase in the mean hourly wage. 

OSHA recognizes that not all firms 

assign the responsibility for 

recordkeeping to an Industrial Health 

and Safety Specialist. For example, a 

smaller firm may use a bookkeeper or a 

plant manager, while a larger firm may 

use a higher-level specialist. However, 

OSHA believes that the calculated cost 

of $50.18 per hour is a reasonable 

estimated total hourly compensation for 

a typical record keeper. 

Additionally, after publishing the 

May 2016 final rule, the Department of 

Labor determined that it is appropriate 

in some circumstances to account for 

overhead expenses as part of the 

methodology used to estimate the costs 

and economic impacts of OSHA 

regulations. Therefore, for this PEA, 

OSHA is updating the projected costs of 

the requirement for establishments with 

250 or more employees to submit the 

information from OSHA Forms 300 and 

301 to OSHA, as reflected in the 2016 

FEA, by adding an overhead rate 

equivalent to 17 percent of base wages. 

For this PEA, OSHA included an 

overhead rate when estimating the 

marginal cost of labor in its primary cost 

calculation. Overhead costs are indirect 

expenses that cannot be tied to 

producing a specific product or service. 

Common examples include rent, 

utilities, and office equipment. 

Unfortunately, there is no general 

consensus on the cost elements that fit 

this definition. The lack of a common 

definition has led to a wide range of 

overhead estimates. Consequently, the 

treatment of overhead costs needs to be 

case-specific. OSHA adopted an 

overhead rate of 17 percent of base 

wages. This is consistent with the 

overhead rate used for sensitivity 

analyses in the FEA in support of the 

2017 final rule delaying the deadline for 

submission of 300A data (82 FR 55761) 

and the FEA in support of OSHA’s 2016 

final standard on Occupational 

Exposure to Respirable Crystalline 

Silica.11 For example, to calculate the 

total labor cost for an Industrial Health 

and Safety Specialist, Standard 

Occupational Classification (SOC) code 

29–9011, three components are added 

together: base wage ($34.85) + fringe 

benefits ($15.33, derived as 44% of 

$34.85) + applicable overhead costs 

($5.92, derived as 17% of $34.85). This 

increases the labor cost of the fullyloaded hourly wage for an Industrial 

Health and Safety Specialist to $56.10. 

For time required for the data 

submission in this PEA, OSHA uses the 

same estimated unit time requirements 

as reported by BLS in its paperwork 

burden analysis for the Survey of 

Occupational Injuries and Illnesses 

(SOII) (OMB Control Number 1220– 

0045, expires December 31, 2018). BLS 

estimated 10 minutes per recordable 

injury/illness case for electronic 

submission of the information on Form 

300 (Log of Work-Related Injuries and 

Illnesses) and Form 301 (Injury and 

Illness Incident Report). In addition, in 

the 2016 FEA, OSHA estimated 2 

minutes more time than the BLS 

paperwork burden, for a total of 12 

minutes per recordable case (10 minutes 

per case for Form 301 entries plus 2 

minutes per case for entry of Form 300 

log entries), to account for the 


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12OSHA welcomes comments on this 

assumption. 

13The 2016 FEA estimated 713,397 injury and 

illness cases per year using the same methodology 

and the most recent SOII data then available (see 

‘‘PEA calculations,’’ Ex. 2067). 

14 In addition, note that the totals in tables in this 

chapter, as well as totals summarized in the text, 

may not precisely sum from underlying elements 

due to rounding. The precise calculation of the 

numbers in the PEA appears in the spreadsheet (see 

‘‘PEA calculations,’’ Ex. 2067). 

15Overall, the estimated cost savings of this 

proposal to remove the provision for electronic 

reporting of case data is 25 percent greater than the 

2016 estimated cost of promulgating the provision 

($6,948,487). There are three reasons for this 25 

percent increase: The number of establishments 

with more than 250 employees has grown, the mean 

hourly wage has increased, and OSHA is now 

including a 17 percent overhead estimate in the cost 

estimates. 

16Source: https://www2.census.gov/ 

programssurveys/susb/datasets/2015/us_state_

emplchange_2014-2015.txt. 17For the CBP see: https://www.census.gov/ 

programs-surveys/cbp.html. 

18 In addition, note that the totals in tables in this 

chapter, as well as totals summarized in the text, 

may not precisely sum from underlying elements 

due to rounding. The precise calculation of the 

numbers in the PEA appears in the spreadsheet (see 

‘‘PEA calculations,’’ Ex. 2067). 

differences between BLS and OSHA 

submission requirements. 

The proposed rule would remove the 

requirement for establishments with 250 

or more employees to report information 

from OSHA Forms 300 and 301. To 

estimate the number of injuries and 

illnesses that would be reported by 

covered establishments with 250 or 

more employees under the current rule, 

OSHA assumed that the total number of 

recordable cases in establishments with 

250 or more employees is proportional 

to the establishments’ share of 

employment within each industry.12

OSHA then used the most recent SOII 

data to estimate that, without the 

proposed rule, covered establishments 

with 250 or more employees would 

report 775,210 injury and illness cases 

per year.13 The cost per case is 

estimated at $11.22 (12/60 × $56.10), 

and the total cost is $8,699,173 ($11.22 

per case × 775,210 cases).14 Therefore, 

the proposal to remove the requirement 

to submit the information from OSHA 

Form 300 and 301 to OSHA 

electronically would result in a total 

cost savings to the private sector of 

$8,699,173.15

The 2016 FEA also included 

government costs for the rule because 

creating a reporting and data collection 

system was a significant fraction of the 

total costs of the regulation. Not 

collecting the case-specific data from 

OSHA Form 300 and 301 would 

generate a small additional cost savings 

for the government because that portion 

of the reporting and data collection 

system has not yet been created and 

would not have to be created under the 

proposed rule. OSHA estimates a lump 

sum savings from not creating the 

software to collect the 300 and 301 data 

to be $450,000. Annualized at 3 percent 

over 10 years, this would represent a 

savings to the government of $52,754 

per year. OSHA also annualized the cost 

savings at 7 percent over 10 years, and 

using this discount rate, the cost savings 

would be slightly higher: $64,070. 

C. New Costs (From the EIN Collection) 

Establishments would be newly 

required to submit the employer’s EIN 

along with the employer’s electronic 

data submission. Some employees given 

this task would already know their 

employer’s EIN from their other duties, 

but others would need to spend some 

time finding out this information. OSHA 

estimates an average of 5 minutes for an 

employee to find out his or her 

employer’s EIN and to enter it on the 

submission form. Hence the unit cost for 

a submission would be the wage of the 

employee who submitted the 

information multiplied by his or her 

time plus overhead, or $4.68 [(5/60) × 

$56.10]. 

The electronic reporting system is 

designed to retain information about 

each establishment based on the login 

information, including the EIN. 

Therefore, employers would only have 

to provide OSHA their EIN once, so this 

would not be a recurring cost. However, 

it would be an additional one-time cost 

for employers who are newly reporting 

data because, for example, the 

establishment is new or the employer 

newly reached the reporting threshold 

for employment size. OSHA has 

estimated that each year there will be 

about 10.15 percent more 

establishments that will be required to 

report their EIN. This 10.15 percent 

figure is derived from the U.S. Census 

Bureau Statistics of U.S. Businesses 

(SUSB), specifically the employment 

change data set 16 which show the 

increase in U.S. business establishments 

from 2014 to 2015. In 2015 there were 

689,819 new establishments, out of a 

total 6,795,201 establishments. Dividing 

the first figure by the second gives a 

change of about 10.15 percent. 

To calculate the total estimated costs 

for covered establishments to provide 

their EINs, OSHA used establishment 

and employment data from the U.S. 

Census County Business Patterns 

(CBP).17 The three categories of 

included establishments are (1) all 

establishments with 250 or more 

employees in industries that are 

required to routinely keep OSHA injury 

and illness records, (2) establishments 

with 20–249 employees in certain highhazard industries, as defined in the 

Appendix to the May 2016 final rule, 

and (3) farms and ranches with 20 or 

more employees. CBP data do not 

include numbers of farms and ranches 

with 20 or more employees, so in the 

May 2016 final rule, OSHA used data 

from the 2012 Census of Agriculture. 

Updated data from the 2017 Census of 

Agriculture are not available at this 

time, so OSHA will continue to use a 

count of 20,623 farms with 20 or more 

employees. CBP data show that there are 

36,903 establishments with 250 or more 

employees in industries required to 

routinely keep records and 405,666 

establishments with 20–249 employees 

in the designated high-hazard 

industries. Combining these figures with 

20,623 farms and ranches results in a 

total of 463,192 establishments that 

would be required to submit an EIN 

under the proposed rule. With a cost per 

establishment of $4.68, the total first 

year cost of providing EINs would be 

$2,165,751 (463,192 × $4.68).18 When 

this cost is annualized over ten years, 

the annualized cost at a 3 percent 

discount rate is $253,892 and at a 7 

percent discount rate the cost is 

$308,354. 

There are 463,192 establishments 

(including establishments with more 

than 250 employees, those with 20–249 

employees in certain NAICS codes, and 

farms with more than 20 employees) 

that would be subject to reporting their 

EIN in the first year under this proposal. 

With 10.15 percent new establishments 

each year, there will be an additional 

47,012 establishments each year. The 

cost for those establishments will be 

$4.68 × 47,012 or $219,858. This cost 

does not occur in the first year. OSHA 

annualized 9 years of new establishment 

costs over ten years, which results in 

annualized costs of $213,262 at a 

discount rate of 3 percent and $204,468 

at a 7 percent discount rate. 

The EIN data field is already included 

in the reporting system design, so there 

would be no additional government 

costs associated with submittal of the 

EIN. 

D. Net Cost Savings 

The cost savings of the proposed rule, 

the new costs associated with collecting 

the EIN, and the net total cost savings 

are shown in Table 1. Combining the 

cost savings to the private sector and to 

the government, the estimated total 

annual cost savings from the proposed 

rule would be $8,751,927 at a 3 percent 

discount rate and $8,763,243 at 7 

percent discount rate. The additional 

costs to the private sector from 


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collection of the EIN are estimated to be 

$467,194 at a 3 percent discount rate 

and $512,822 at 7 percent discount rate. 

The net cost savings for this proposal 

are estimated to be $8,284,733 at a 3 

percent discount rate and $8,250,421 at 

7 percent discount rate. 

TABLE I—TOTAL COST SAVINGS AND TOTAL ADDITIONAL COSTS OF THE PROPOSED RULE

Cost savings element Annual cost 

savings 

Cost savings for eliminating electronic submission of part 1904 records by establishments with 250 or more employees (Total 

Private Sector Savings) ................................................................................................................................................................... $8,699,173 

Total Government Cost Savings, 3 percent discount rate over ten years .......................................................................................... 52,754 

Total Government Cost Savings, 7 percent discount rate over ten years .......................................................................................... 64,070 

Total Cost Savings per year, 3 percent discount rate over ten years ................................................................................................ 8,751,927 

Total Cost Savings per year, 7 percent discount rate over ten years ................................................................................................ 8,763,243 

New costs from EIN collection Cost 

First Year EIN Cost ............................................................................................................................................................................. $2,165,751 

Annualized First Year Costs, 3 percent discount rate over ten years ................................................................................................ 253,892 

Annualized First Year Costs, 7 percent discount rate over ten years ................................................................................................ 308,354 

Subsequent Annual EIN Costs (from new establishments), starting in second year ......................................................................... 219,858 

Subsequent annual EIN Cost Annualized at a 3 percent discount rate over ten years ..................................................................... 213,262 

Subsequent annual EIN Cost Annualized at a 7 percent discount rate over ten years ..................................................................... 204,468 

Annualized Total EIN Cost, 3 percent discount rate over ten years .................................................................................................. 467,194 

Annualized Total EIN Cost, 7 percent discount rate over ten years .................................................................................................. 512,822 

Net Cost Savings, 3 percent discount rate over ten years ................................................................................................................. 8,284,733 

Net Cost Savings, 7 percent discount rate over ten years ................................................................................................................. 8,250,421 

There could be substantial cost 

savings from requiring covered 

employers to include the EIN in their 

reporting. There is roughly a 40% 

overlap between the BLS SOII sample 

and private sector establishments 

required to report to OSHA. If OSHA 

collected Form 300A from all covered 

private sector units and BLS were able 

to fully match these units and use them 

in generating SOII estimates, the 

reduction in duplication would 

represent approximately 15,000 hours of 

respondent burden. In its SOII 

paperwork burden analysis, BLS 

estimates the total cost of submitting 

this form for private sector 

establishments to be $891,000. The 

potential cost savings for avoiding 

duplication is 40 percent of this value— 

$356,000. Considering that the cost 

savings for avoiding duplication is 

perpetual, the total net savings for 

adding the EIN is estimated to be 

$2,648,850 at a 3 percent discount rate 

and $126,294 at 7 percent discount rate 

in a perpetual time horizon. 

E. Benefits 

The value of worker privacy is 

impossible to quantify, but no less 

significant because of that fact. This 

proposed rule would protect worker 

privacy by preventing routine 

government collection of information 

that may be quite sensitive, including 

descriptions of workers’ injuries and the 

body parts affected, and thereby 

avoiding the risk that such information 

might be publicly disclosed under 

FOIA. 

OSHA further believes that the 

collection of individual information 

from Forms 300 and 301 could add 

enforcement benefits, but those benefits 

are uncertain and difficult to quantify. 

As noted above, these benefits are 

uncertain because OSHA lacks 

experience with the use of that 

information and is not sure about how 

many resources it would take to make 

meaningful use of that information. The 

loss of these uncertain benefits is also 

impossible to quantify. 

OSHA has preliminarily determined 

that the (substantial) benefits to worker 

privacy outweigh the (uncertain) 

foregone benefits to enforcement. It 

welcomes public comment on this 

determination, including on its 

preliminary conclusions that neither 

worker privacy nor enforcement benefits 

can be meaningfully quantified. 

F. Economic Feasibility 

Removing the requirement for 

establishments with 250 or more 

employees to submit the information 

from OSHA Forms 300 and 301 to 

OSHA annually would reduce costs and 

so would have no negative feasibility 

effects. The EIN requirement would cost 

an estimated $4.68 per establishment, 

still leaving a large overall reduction in 

costs, and so would be economically 

feasible. Hence, OSHA concludes that 

the proposed rule is economically 

feasible. 

G. Regulatory Flexibility Certification 

The current requirement for annual 

electronic submission of information 

from OSHA Forms 300 and 301 affects 

only a very small minority of small 

firms. In many industry sectors, there 

are no small firms with at least 250 

employees. Even in those industry 

sectors where the definition of small 

firm includes some firms with at least 

250 employees, the overwhelming 

majority of small firms have fewer than 

250 employees. However, there will be 

some small firms affected in some 

industries. Removing this requirement 

as proposed would result in a cost 

savings of, on average, $236 per 

establishment for each establishment 

with 250 or more employees affected by 

the 2016 Final Rule. This number is 

derived by dividing the total cost 

savings of $8,699,173 by 36,903 affected 

establishments with 250 or more 

employees. Such a small amount of cost 

savings would not have a significant 

impact on a firm with 250 or more 

employees. 

As above, removing the requirement 

for establishments with 250 or more 

employees to submit the information 

from OSHA Forms 300 and 301 

annually to OSHA would reduce costs, 

and the estimated cost of the EIN 

requirement is $4.68 per establishment, 

a negligible amount. Hence, per § 605 of 

the Regulatory Flexibility Act, OSHA 

certifies that this proposed rule will not 

have a significant economic impact on 

a substantial number of small entities. 

V. OMB Review Under the Paperwork 

Reduction Act of 1995 

This proposed rule would revise an 

existing collection of information, as 


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defined and covered by the Paperwork 

Reduction Act of 1995 (PRA) and its 

implementing regulations, that is 

subject to review by OMB under the 

PRA (44 U.S.C. 3501–3521) and OMB 

regulations (5 CFR part 1320). The PRA 

requires that agencies obtain approval 

from OMB before conducting any 

collection of information (44 U.S.C. 

3507). The PRA defines a ‘‘collection of 

information’’ as ‘‘the obtaining, causing 

to be obtained, soliciting, or requiring 

the disclosure to third parties or the 

public of facts or opinions by or for an 

agency regardless of form or format’’ (44 

U.S.C. 3502(3)(A)). 

OSHA’s existing recordkeeping forms 

consist of the OSHA 300 Log, the 300A 

Summary, and the 301 Incident Report. 

These forms are contained in the 

Information Collection Request (ICR) 

(paperwork package) titled 29 CFR part 

1904 Recording and Reporting 

Occupational Injuries and Illnesses, 

which OMB approved under OMB 

Control Number 1218–0176. 

The proposed rule would affect the 

ICR estimates as follows: 

1. Establishments that are subject to 

the part 1904 requirements and have 

250 or more employees would no longer 

be required to electronically submit 

information recorded on their OSHA 

Forms 300 and 301 to OSHA once a 

year. 

2. Establishments subject to the data 

collection would provide one additional 

data element, the EIN. 

The burden hours for the electronic 

reporting requirements under § 1904.41 

if revised as proposed are estimated to 

be 136,641 per year. There are no capital 

costs for this collection of information. 

More specifically, this action 

proposes to amend the recordkeeping 

regulation to remove the requirement for 

establishments that are required to keep 

injury and illness records under part 

1904, and that had 250 or more 

employees in the previous year, to 

electronically submit to OSHA or 

OSHA’s designee case characteristic 

information from the OSHA Form 300 

(Log of Work-Related Injuries and 

Illnesses) and OSHA Form 301 (Injury 

and Illness Incident Report) once a year. 

Under the proposed rule, these 

establishments would only be required 

to submit summary information from 

the OSHA Form 300A. There are 

approximately 37,000 establishments 

that would no longer be subject to a 

requirement to submit the information 

on OSHA Forms 300 and 301 for 

approximately 775,000 injury and 

illness cases under the proposed rule. 

OSHA used 2015 SOII data (https://

www.bls.gov/iif/oshwc/osh/os/ 

ostb4734.pdf) to estimate that, without 

the proposed rule, covered 

establishments with 250 or more 

employees would report 775,210 injury 

and illness cases per year.) Also, OSHA 

requests comment on requiring 463,000 

employers to submit their EIN to OSHA. 

The table below presents the 

components of the collection that 

comprise the ICR estimates. 

Estimated burden under current reporting 

requirements 

Estimated burden under proposed 

reporting requirements 

Number of 

cases 

Unit hours 

per case 

Total 

burden 

hours 

Number of 

cases 

Unit hours 

per case 

Total 

burden 

hours 

§ 1904.41(a)(1)—Create a new account ........................................................... 3,690 0.167 616 3,690 0.167 616 

§ 1904.41(a)(1)—provide EIN ........................................................................... 0 0.083 0 36,903 0.083 3,063 

§ 1904.41(a)(1)—electronic submission of OSHA Form 300A data by establishments with 250 or more employees ........................................................ 36,903 0.167 6,163 36,903 0.167 6,163 

§ 1904.41(a)(1)—electronic submission of injury and illness case data by establishments with 250 or more employees ................................................... 775,210 0.2 155,042 0 0.2 0 

§ 1904.41(a)(2)—Create a new account ........................................................... 40,567 0.167 6,775 40,567 0.167 6,775 

§ 1904.41(a)(2)—provide EIN ........................................................................... 0 0.083 0 426,285 0.083 35,382 

§ 1904.41(a)(2)—electronic submission of OSHA Form 300A data by establishments with 20 or more employees but fewer than 250 employees in 

designated industries ..................................................................................... 385,383 0.167 64,359 385,383 0.167 64,359 

§ 1904.41(a)(2)—electronic submission of OSHA Form 300A data by establishments with 20 or more employees but fewer than 250 employees in 

designated industries—with no internet connection ...................................... 20,283 1 20,283 20,283 1 20,283 

§ 1904.41(a)(3)—Electronic submission of part 1904 records upon notification ................................................................................................................. 0 0 0 0 0 0 

Total burden hours ..................................................................................... .................... .................... 253,238 .................... .................... 136,641 

As required by 5 CFR 1320.5(a)(1)(iv) 

and 1320.8(d)(2), the following 

paragraphs provide information about 

this ICR. 

1. Title: Recording and Reporting 

Occupational Injuries and Illnesses (29 

CFR part 1904). 

2. Number of respondents: 1,002,912. 

3. Frequency of responses: Annually. 

4. Number of responses: 5,839,692. 

5. Average time per response: 22 

minutes. 

6. Estimated total burden hours: 

2,136,953 hours. 

7. Estimated costs (capital-operation 

and maintenance): $0. 

Members of the public may comment 

on the paperwork requirements in this 

proposed regulation by sending their 

written comments to the Office of 

Information and Regulatory Affairs, 

Attn: OMB Desk Officer for the 

Department of Labor, OSHA (Regulation 

Identifier Number (RIN) 1218–AD17), 

Office of Management and Budget, 

Room 10235, Washington, DC 20503; 

telephone: 202–395–6929; fax: 202– 

395–6881 (these are not toll-free 

numbers); email: OIRA_submission@

omb.eop.gov. Please limit the comments 

to only the proposed changed 

provisions of the recordkeeping rule 

related to information collection (i.e., 

proposed § 1904.41). 

OSHA also encourages commenters to 

submit their comments on these 

paperwork requirements to the 

rulemaking docket (OSHA–2013–0023), 

along with their comments on other 

parts of the proposed regulation. For 

instructions on submitting these 

comments to the docket, see the sections 

of this Federal Register document titled 

DATES and ADDRESSES. 

Comments submitted in response to 

this document are public records; 

therefore, OSHA cautions commenters 

about submitting personal information 

such as Social Security numbers and 

dates of birth. To access the docket to 

read or download comments and other 

materials related to this paperwork 

determination, including the complete 

ICR, use the procedures described under 


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the section of this document titled 

ADDRESSES. You may obtain an 

electronic copy of the complete ICR by 

going to the website at http://

www.reginfo.gov/public/do/PRAMain, 

then selecting ‘‘Department of Labor’’ 

under ‘‘Currently Under Review,’’ then 

clicking on ‘‘submit.’’ This will show all 

of the Department’s ICRs currently 

under review, including the ICRs 

submitted for proposed rulemakings. To 

make inquiries, or to request other 

information, contact Mr. Charles 

McCormick, Directorate of Standards 

and Guidance, OSHA, telephone: (202) 

693–1740; email: mccormick.charles@

dol.gov. 

OSHA and OMB are particularly 

interested in comments that: 

• Evaluate whether the proposed 

collection of information is necessary 

for the proper performance of the 

functions of the agency, including 

whether the information will have 

practical utility; 

• Evaluate the accuracy of the 

agency’s estimate of the burden of the 

proposed collection of information, 

including the validity of the 

methodology and assumptions used; 

• Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

• Minimize the burden of the 

collection of information on those who 

are to respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology, 

e.g., permitting electronic submission of 

responses. 

OSHA notes that a federal agency 

cannot conduct or sponsor a collection 

of information unless OMB approves it 

under the PRA, and the information 

collection displays a currently-valid 

OMB control number. Also, 

notwithstanding any other provision of 

law, no party shall be subject to penalty 

for failing to comply with a collection 

of information if the collection of 

information does not display a 

currently-valid OMB control number. 

OSHA will publish a notice of OMB’s 

action when it publishes the final 

regulation, or, if not approved by then, 

when OMB authorizes the information 

collection requirements under the PRA. 

VI. Unfunded Mandates 

For purposes of the UMRA (2 U.S.C. 

1501–1571), as well as E.O. 13132 (64 

FR 43255 (Aug. 4, 1999)), this rule does 

not include any federal mandate that 

may result in increased expenditures by 

state, local, and tribal governments, or 

increased expenditures by the private 

sector of more than $100 million. 

VII. Federalism 

The proposed rule has been reviewed 

in accordance with Executive Order 

13132, regarding federalism. Because 

this rulemaking involves a ‘‘regulation’’ 

issued under Sections 8 and 24 of the 

OSH Act, and is not an ‘‘occupational 

safety and health standard’’ issued 

under Section 6 of the OSH Act, the rule 

will not preempt state law (29 U.S.C. 

667(a)). The effect of the proposed rule 

on states is discussed in Section VIII, 

State Plan States. 

VIII. State Plan States 

Pursuant to section 18 of the OSH Act 

(29 U.S.C. 667) and the requirements of 

29 CFR 1904.37 and 1902.7, within 6 

months after publication of the final 

OSHA rule, state-plan states must 

promulgate occupational injury and 

illness recording and reporting 

requirements that are substantially 

identical to those in 29 CFR part 1904 

‘‘Recording and Reporting Occupational 

Injuries and Illnesses.’’ All other injury 

and illness recording and reporting 

requirements (for example, industry 

exemptions, reporting of fatalities and 

hospitalizations, record retention, or 

employee involvement) that are 

promulgated by state-plan states may be 

more stringent than, or supplemental to, 

the federal requirements, but, because of 

the unique nature of the national 

recordkeeping program, states must 

consult with OSHA and obtain approval 

of such additional or more stringent 

reporting and recording requirements to 

ensure that they will not interfere with 

uniform reporting objectives (29 CFR 

1904.37(b)(2), 29 CFR 1902.7). Also 

because of the need for a consistent 

national data system, employers in 

state-plan states must comply with 

federal requirements for the submission 

of data under part 1904 whether or not 

the state plan has implemented a 

substantially identical requirement by 

the time the federal requirement goes 

into effect. Therefore, although states 

will need to update their plans to match 

the Federal plan, there is no discretion 

involved, so this change should be 

relatively simple to make. 

There are 28 state plan states and 

territories. The states and territories that 

cover private sector employers are 

Alaska, Arizona, California, Hawaii, 

Indiana, Iowa, Kentucky, Maryland, 

Michigan, Minnesota, Nevada, New 

Mexico, North Carolina, Oregon, Puerto 

Rico, South Carolina, Tennessee, Utah, 

Vermont, Virginia, Washington, and 

Wyoming. Connecticut, Illinois, Maine, 

New Jersey, New York, and the Virgin 

Islands have OSHA-approved state 

plans that apply to state and local 

government employees only. 

IX. Public Participation 

Because this rulemaking involves a 

regulation rather than a standard, it is 

governed by the notice and comment 

requirements in the Administrative 

Procedure Act (APA) (5 U.S.C. 553) 

rather than section 6 of the OSH Act (29 

U.S.C. 655) and 29 CFR part 1911 (both 

of which only apply to ‘‘promulgating, 

modifying or revoking occupational 

safety or health standards’’ (29 CFR 

1911.1)). Therefore, the OSH Act 

requirement to hold an informal public 

hearing (29 U.S.C. 655(b)(3)) on a 

proposed standard, when requested, 

does not apply to this rulemaking. 

A. Public Submissions 

OSHA invites comment on all aspects 

of the proposed rule. OSHA specifically 

encourages comment on the issues 

raised in the questions subsection. 

OSHA is not seeking comment on any 

other aspects of part 1904. Interested 

persons must submit comments by 

September 28, 2018. The Agency will 

carefully review and evaluate all 

comments, information, and data, as 

well as all other information in the 

rulemaking record, to determine how to 

proceed. 

You may submit comments in 

response to this document (1) 

electronically at https://

www.regulations.gov, which is the 

federal e-rulemaking portal; (2) by fax; 

or (3) by hard copy. All submissions 

must identify the agency name and the 

OSHA docket number (Docket No. 

OSHA–2013–0023) or RIN (RIN 1218– 

AD17) for this rulemaking. You may 

supplement electronic submissions by 

uploading document files electronically. 

If, instead, you wish to mail additional 

materials in reference to an electronic or 

fax submission, you must submit three 

copies to the OSHA docket office (see 

ADDRESSES section). The additional 

materials must clearly identify your 

electronic comments by name, date, and 

docket number, so that OSHA can attach 

them to your comments. 

Because of security-related 

procedures, the use of regular mail may 

cause a significant delay in the receipt 

of submissions. For information about 

security procedures concerning the 

delivery of materials by hand, express 

delivery, messenger, or courier service, 

please contact the OSHA docket office 

at (202) 693–2350 (TTY (877) 889– 

5627). 

B. Access to Docket 

Comments in response to this Federal 

Register document are posted at https:// 


daltland on DSKBBV9HB2PROD with PROPOSALS
36506 Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Proposed Rules 

www.regulations.gov, the federal erulemaking portal. Therefore, OSHA 

cautions individuals about submitting 

personal information such as Social 

Security numbers and birthdates. 

Although submissions are listed in the 

https://www.regulations.gov index, 

some information (e.g., copyrighted 

material) is not publicly available to 

read or download through that website. 

All comments and exhibits, including 

copyrighted material, are available for 

inspection at the OSHA docket office. 

Information on using https://

www.regulations.gov to submit 

comments and access dockets is 

available on that website. Contact the 

OSHA docket office for information 

about materials not available through 

the website and for assistance in using 

the internet to locate docket 

submissions. 

Electronic copies of this Federal 

Register document are available at 

https://www.regulations.gov. This 

document, as well as news releases and 

other relevant information, also are 

available at OSHA’s web page at http:// 

www.osha.gov. For specific information 

about OSHA’s Recordkeeping rule, go to 

the Recordkeeping page on OSHA’s web 

page. 

List of Subjects in 29 CFR Part 1904 

Health statistics, Occupational safety 

and health, Reporting and 

recordkeeping requirements, State 

plans. 

Signed at Washington, DC, on July 23, 

2018. 

Loren E. Sweatt, 

Deputy Assistant Secretary of Labor for 

Occupational Safety and Health. 

Amendments to Regulations 

For the reasons stated in the 

preamble, OSHA proposes to amend 

part 1904 of chapter XVII of title 29 as 

follows: 

PART 1904—[AMENDED] 

Subpart E—Reporting Fatality, Injury 

and Illness Information to the 

Government 

■ 1. The authority citation for subpart E 

of 29 CFR part 1904 continues to read 

as follows: 

Authority: 29 U.S.C. 657, 673, 5 U.S.C. 

553, and Secretary of Labor’s Order 1–2012 

(77 FR 3912, Jan. 25, 2012). 

■ 2. In § 1904.41, revise the section 

heading and paragraph (a)(1), add 

paragraph (a)(4), and revise paragraph 

(b) to read as follows: 

§ 1904.41 Electronic submission of 

Employer Identification Number (EIN) and 

injury and illness records to OSHA. 

(a) * * * 

(1) Annual electronic submission of 

OSHA Form 300A Summary of WorkRelated Injuries and Illnesses by 

establishments with 250 or more 

employees. If your establishment had 

250 or more employees at any time 

during the previous calendar year, and 

this part requires your establishment to 

keep records, then you must 

electronically submit information from 

OSHA Form 300A Summary of WorkRelated Injuries and Illnesses to OSHA 

or OSHA’s designee. You must submit 

the information once a year, no later 

than the date listed in paragraph (c) of 

this section of the year after the calendar 

year covered by the form (for example, 

2019 for the 2018 form). 

* * * * * 

(4) Electronic submission of the 

Employer Identification Number (EIN). 

For each establishment that is subject to 

these reporting requirements, you must 

provide the EIN used by the 

establishment. 

* * * * * 

(b) Implementation—(1) Does every 

employer have to routinely submit this 

information to OSHA? No, only two 

categories of employers must routinely 

submit this information. First, if your 

establishment had 250 or more 

employees at any time during the 

previous calendar year, and this part 

requires your establishment to keep 

records, then you must submit the 

required information to OSHA once a 

year. Second, if your establishment had 

20 or more employees but fewer than 

250 employees at any time during the 

previous calendar year, and your 

establishment is classified in an 

industry listed in appendix A to subpart 

E of this part, then you must submit the 

required information to OSHA once a 

year. Employers in these two categories 

must submit the required information 

by the date listed in paragraph (c) of this 

section of the year after the calendar 

year covered by the form (for example, 

2019 for the 2018 form). If you are not 

in either of these two categories, then 

you must submit the information to 

OSHA only if OSHA notifies you to do 

so for an individual data collection. 

(2) Do part-time, seasonal, or 

temporary workers count as employees 

in the criteria for number of employees 

in paragraph (a) of this section? Yes, 

each individual employed in the 

establishment at any time during the 

calendar year counts as one employee, 

including full-time, part-time, seasonal, 

and temporary workers. 

(3) How will OSHA notify me that I 

must submit information as part of an 

individual data collection under 

paragraph (a)(3) of this section? OSHA 

will notify you by mail if you will have 

to submit information as part of an 

individual data collection under 

paragraph (a)(3). OSHA will also 

announce individual data collections 

through publication in the Federal 

Register and the OSHA newsletter, and 

announcements on the OSHA website. If 

you are an employer who must 

routinely submit the information, then 

OSHA will not notify you about routine 

submittal. 

(4) When do I have to submit the 

information? If you are required to 

submit information under paragraph 

(a)(1) or (2) of this section, then you 

must submit the information once a 

year, by the date listed in paragraph (c) 

of this section of the year after the 

calendar year covered by the form (for 

example, 2019 for the 2018 form). If you 

are submitting information because 

OSHA notified you to submit 

information as part of an individual data 

collection under paragraph (a)(3) of this 

section, then you must submit the 

information as specified in the 

notification. 

(5) How do I submit the information? 

You must submit the information 

electronically. OSHA will provide a 

secure website for the electronic 

submission of information. For 

individual data collections under 

paragraph (a)(3) of this section, OSHA 

will include the website’s location in 

the notification for the data collection. 

(6) Do I have to submit information if 

my establishment is partially exempt 

from keeping OSHA injury and illness 

records? If you are partially exempt 

from keeping injury and illness records 

under §§ 1904.1 and/or 1904.2, then you 

do not have to routinely submit 

information under paragraphs (a)(1) and 

(2) of this section. You will have to 

submit information under paragraph 

(a)(3) of this section if OSHA informs 

you in writing that it will collect injury 

and illness information from you. If you 

receive such a notification, then you 

must keep the injury and illness records 

required by this part and submit 

information as directed. 

(7) Do I have to submit information if 

I am located in a State Plan State? Yes, 

the requirements apply to employers 

located in State Plan States. 

(8) May an enterprise or corporate 

office electronically submit information 

for its establishment(s)? Yes, if your 

enterprise or corporate office had 

ownership of or control over one or 

more establishments required to submit 

information under paragraph (a) of this 


daltland on DSKBBV9HB2PROD with PROPOSALS
Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Proposed Rules 36507 

1The term ‘‘certification/licensing’’ covers each 

of the certification options in the proposed rule 

(third-party certification or an audited employer 

certification program) as well as state or local 

operator licensing requirements. 

section, then the enterprise or corporate 

office may collect and electronically 

submit the information for the 

establishment(s). 

* * * * * 

[FR Doc. 2018–16059 Filed 7–27–18; 8:45 am] 

BILLING CODE 4510–26–P 

DEPARTMENT OF LABOR 

Occupational Safety and Health 

Administration 

29 CFR Part 1926 

[Docket ID–OSHA–2018–0009] 

RIN 1218–AC96 

Information Collection Request; 

Cranes and Derricks in Construction: 

Operator Qualification 

AGENCY: Occupational Safety and Health 

Administration (OSHA), Labor. 

ACTION: Proposed rule, limited 

reopening of comment period. 

SUMMARY: OSHA is providing the public 

an additional 30 days to comment on 

only the information collection 

requirements contained in the proposed 

updates to its standard for cranes and 

derricks in construction published on 

May 21, 2018. 

DATES: The comment period for only the 

information collection requirements 

published on May 21, 2018 at 83 FR 

23534, is reopened. Comments must be 

submitted (postmarked, sent, or 

received) by August 29, 2018. 

ADDRESSES: 

Electronically: You may submit 

comments and attachments 

electronically at http://

www.regulations.gov, which is the 

Federal eRulemaking Portal. Follow the 

instructions online for submitting 

comments. 

Facsimile: If your comments, 

including attachments, are not longer 

than 10 pages you may fax them to the 

OSHA Docket Office at (202) 693–1648. 

Regular mail, express delivery, hand 

delivery, and messenger (courier) 

service: When using this method, you 

must submit a copy of your comments 

and attachments to the OSHA Docket 

Office, Docket No. OSHA–2018–0009, 

Occupational Safety and Health 

Administration, U.S. Department of 

Labor, Room N–3653, 200 Constitution 

Avenue NW, Washington, DC 20210. 

Deliveries (hand, express mail, 

messenger, and courier service) are 

accepted during the OSHA Docket 

Office’s normal business hours, 10:00 

a.m. to 3:00 p.m., ET. 

Instructions: All submissions must 

include the agency name, the title of 

this document ‘‘Information Collection 

Request; Cranes and Derricks in 

Construction: Operator Qualification,’’ 

and the OSHA docket number for this 

document (OSHA–2018–0009). All 

comments, including any personal 

information you provide, are placed in 

the public docket without change, and 

may be made available online at http:// 

www.regulations.gov. For further 

information on submitting comments, 

see the ‘‘Public Participation’’ heading 

in the section of this document titled 

SUPPLEMENTARY INFORMATION. Because of 

security procedures, the use of regular 

mail may cause a significant delay in 

the receipt of comments. For 

information about security procedures 

concerning the delivery of materials by 

hand, express delivery, messenger, or 

courier service, please contact the 

OSHA Docket Office at (202) 693–2350; 

TTY (877) 889–5627. 

Docket: To read or download 

comments or other material in the 

docket, go to http://www.regulations.gov 

or the OSHA Docket Office at the above 

address. All documents in the docket 

(including this Federal Register 

document) are listed in the http://

www.regulations.gov index; however, 

some information (e.g., copyrighted 

material) is not publicly available to 

read or download through the website. 

All submissions, including copyrighted 

material, are available for inspection at 

the OSHA Docket Office. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Vernon Preston, Directorate of 

Construction; telephone: (202) 693– 

2020; fax: (202) 693–1689; email: 

preston.vernon@dol.gov. 

SUPPLEMENTARY INFORMATION: 

A. Background 

OSHA published a notice of proposed 

rulemaking ‘‘Cranes and Derricks in 

Construction: Operator Qualification’’ 

(the NPRM or the proposed rule) on 

May 21, 2018, in the Federal Register 

(83 FR 23534) proposing regulations to 

update the standard for cranes and 

derricks in construction. In the NPRM, 

OSHA proposes to amend 29 CFR 1926, 

subpart CC to revise sections that 

address crane operator training, 

certification/licensing,1 and 

competency. The purpose of these 

amendments are to: Require 

comprehensive training of operators; 

remove certification by capacity from 

certification requirements; clarify and 

permanently extend the employer duty 

to evaluate potential operators for their 

ability to safely operate equipment 

covered by subpart CC; and require 

documentation of that evaluation. 

The proposed rule provided the 

public 30 days to comment on the 

proposed regulations including the 

information collection requirements 

contained in the proposed rule. Under 

the Paperwork Reduction Act (the PRA), 

Federal agencies are required to publish 

a notice in the Federal Register 

concerning each proposed information 

collection requirement and to allow 60 

days for public comment on those 

requirements (44 U.S.C. 3506(c)(2)(A); 

see also 5 CFR 1320.8(d)(1)). 

Accordingly this document allows the 

public an additional 30 days, as 

required by the PRA, to comment on the 

information collection requirements 

contained in the proposed rule. 

Concurrent with publication of the 

proposed rule, OSHA submitted the 

new Cranes and Derricks in 

Construction Standard (29 CFR part 

1926, subpart CC): Operator 

Qualification Information Collection 

Request (ICR) to the Office of 

Management and Budget (OMB) for 

review with a request for a new control 

number (ICR Reference Number 

201710–1218–002). If a final rule is 

published, OSHA will submit the final 

ICR for the final Cranes and Derricks in 

Construction Standard: Operator 

Qualification to OMB for approval. If 

the final ICR is approved, OSHA will 

request to amend the comprehensive 

Cranes and Derricks in Construction 

Information Collection (OMB control 

number 1218–0261) to incorporate the 

ICR analysis associated with the final 

Cranes and Derricks in Construction 

Standard: Operator Qualification and to 

discontinue the new control number. 

The purpose of the PRA, 44 U.S.C. 

3501 et seq., includes enhancing the 

quality and utility of information the 

Federal government requires and 

minimizing the paperwork and 

reporting burden on affected entities. 

The PRA requires certain actions before 

an agency can adopt or revise a 

collection of information requirement 

(also referred to as a ‘‘paperwork’’ or 

‘‘information collection’’ requirement), 

including publishing a summary of the 

information collection requirements and 

a brief description of the need for, and 

proposed use of, the information. The 

PRA defines ‘‘collection of information’’ 

as ‘‘the obtaining, causing to be 

obtained, soliciting, or requiring the 

disclosure to third parties or the public, 

of facts or opinions by or for an agency, 

regardless of form or format.’’ (44 U.S.C. 

3502(3)(A)). Under the PRA, a Federal 

agency may not conduct or sponsor a 


daltland on DSKBBV9HB2PROD with PROPOSALS