47254 Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations 

DEPARTMENT OF LABOR 

Occupational Safety and Health 

Administration 

29 CFR Part 1904 

[Docket No. OSHA–2021–0006] 

RIN 1218–AD40 

Improve Tracking of Workplace 

Injuries and Illnesses 

AGENCY: Occupational Safety and Health 

Administration (OSHA), Labor. 

ACTION: Final rule. 

SUMMARY: OSHA is amending its 

occupational injury and illness 

recordkeeping regulation to require 

certain employers to electronically 

submit injury and illness information to 

OSHA that employers are already 

required to keep under the 

recordkeeping regulation. Specifically, 

OSHA is amending its regulation to 

require establishments with 100 or more 

employees in certain designated 

industries to electronically submit 

information from their OSHA Forms 300 

and 301 to OSHA once a year. OSHA 

will not collect employee names or 

addresses, names of health care 

professionals, or names and addresses of 

facilities where treatment was provided 

if treatment was provided away from the 

worksite from the Forms 300 and 301. 

Establishments with 20 to 249 

employees in certain industries will 

continue to be required to electronically 

submit information from their OSHA 

Form 300A annual summary to OSHA 

once a year. All establishments with 250 

or more employees that are required to 

keep records under OSHA’s injury and 

illness regulation will also continue to 

be required to electronically submit 

information from their Form 300A to 

OSHA on an annual basis. OSHA is also 

updating the NAICS codes used in 

appendix A, which designates the 

industries required to submit their Form 

300A data, and is adding appendix B, 

which designates the industries 

required to submit Form 300 and Form 

301 data. In addition, establishments 

will be required to include their 

company name when making electronic 

submissions to OSHA. OSHA intends to 

post some of the data from the annual 

electronic submissions on a public 

website after identifying and removing 

information that could reasonably be 

expected to identify individuals 

directly, such as individuals’ names and 

contact information. 

DATES: This final rule becomes effective 

on January 1, 2024. 

Collections of information: There are 

collections of information contained in 

this final rule (see Section V, OMB 

Review Under the Paperwork Reduction 

Act of 1995). Notwithstanding the 

general date of applicability for the 

requirements contained in the final rule, 

affected parties do not have to comply 

with the collections of information until 

the Department of Labor publishes a 

separate document in the Federal 

Register announcing that the Office of 

Management and Budget has approved 

them under the Paperwork Reduction 

Act. 

ADDRESSES: Electronic copies of this 

Federal Register document and news 

releases are available at OSHA’s website 

at https://www.osha.gov. 

FOR FURTHER INFORMATION CONTACT: 

For press inquiries: Frank Meilinger, 

Director, Office of Communications, 

Occupational Safety and Health 

Administration, U.S. Department of 

Labor; telephone (202) 693–1999; email: 

meilinger.francis2@dol.gov. 

For general information and technical 

inquiries: Lee Anne Jillings, Director, 

Directorate of Technical Support and 

Emergency Management, U.S. 

Department of Labor; telephone (202) 

693–2300; email: Jillings.LeeAnne@

dol.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background 

A. References and Exhibits 

B. Introduction 

C. Regulatory History 

D. Related Litigation 

E. Injury and Illness Data Collection 

II. Legal Authority 

A. Statutory Authority To Promulgate the 

Rule 

B. Fourth Amendment Issues 

C. Publication of Collected Data and FOIA 

D. Reasoned Explanation for Policy Change 

III. Summary and Explanation of the Final 

Rule 

A. Section 1904.41(a)(1)(i) and (ii)— 

Annual Electronic Submission of 

Information From OSHA Form 300A 

Summary of Work-Related Injuries and 

Illnesses 

1. Section 1904.41(a)(1)(i)—Establishments 

With 20–249 employees That Are 

Required To Submit Information From 

OSHA Form 300A 

2. Section 1904.41(a)(1)(ii)— 

Establishments With 250 or More 

Employees That Are Required To Submit 

Information From OSHA Form 300A 

3. Restructuring of Previous Section 

1904.41(a)(1) and (2) Into Final Section 

1904.41(a)(1)(i) and (ii) 

4. Updating Appendix A 

B. Section 1904.41(a)(2)—Annual 

Electronic Submission of OSHA Form 

300 Log of Work-Related Injuries and 

Illnesses and OSHA Form 301 Injury and 

Illness Incident Report by 

Establishments With 100 or More 

Employees in Designated Industries) 

1. Covered Establishments and Industries 

a. The Size Threshold for Submitting 

Information From OSHA Forms 300 and 

301 

b. The Criteria for Determining the 

Industries in Appendix B to Subpart E 

c. Cut-Off Rates for Determining the 

Industries in Appendix B to Subpart E 

d. Using the Most Current Data To 

Determine Designated Industries 

e. Industries Included in Final Appendix B 

After Applying the Final Criteria, Cut-Off 

Rates, and Data Sources 

2. Information To Be Submitted 

3. Publication of Electronic Data 

4. Benefits of Collecting and Publishing 

Data From Forms 300 and 301 

a. General Benefits of Collecting and 

Publishing Data From Forms 300 and 

301 

b. Beneficial Ways That OSHA Can Use 

The Data From Forms 300 and 301 

c. Beneficial Ways That Employers Can 

Use the Data From Forms 300 and 301 

d. Beneficial Ways That Employees Can 

Use the Data From Forms 300 and 301 

e. Beneficial Ways That Federal and State 

Agencies Can Use the Data From Forms 

300 and 301 

f. Beneficial Ways That Researchers Can 

Use the Data From Forms 300 and 301 

g. Beneficial Ways That Workplace Safety 

Consultants Can Use the Data From 

Forms 300 and 301 

h. Beneficial Ways That Members of the 

Public and Other Interested Parties Can 

Use the Data From Forms 300 and 301 

5. The Freedom of Information Act (FOIA) 

6. Safeguarding Individual Privacy (Direct 

Identification) 

7. Indirect Identification of Individuals 

8. The Experience of Other Federal 

Agencies 

9. Risk of Cyber Attack 

10. The Health Information Portability and 

Accountability Act (HIPAA) 

11. The Americans With Disabilities Act 

(ADA) 

12. The Privacy Act 

13. Privacy Impact Assessment 

14. Other Issues Related to OSHA’s 

Proposal To Require the Submission of 

and Then Publish Certain Data From 

Establishments’ Forms 300 and 301 

a. Miscellaneous Comments 

b. The Effect of the Rule on the Accuracy 

of Injury and Illness Records 

c. Collecting and Processing the Data From 

Forms 300 and 301 Will Help OSHA Use 

Its Resources More Effectively 

d. OSHA’s Capacity To Collect and Process 

the Data From Forms 300 and 301 

e. Data Submission 

f. Tools To Make the Collected Data From 

Forms 300 and 301 More Useful 

C. Section 1904.41(b)(1) 

D. Section 1904.41(b)(9) 

1. Collecting Employee Names 

2. Excluding Other Specified Fields 

E. Section 1904.41(b)(10) 

F. Section 1904.41(c) 

G. Additional Comments Which Concern 

More Than One Section of the Proposal 


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Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations 47255 

1. General Comments 

2. Misunderstandings About Scope 

3. Diversion of Resources 

4. Lagging v. Leading Indicators 

5. Employer Shaming 

6. Impact on Employee Recruiting 

7. Legal Disputes 

8. No Fault Recordkeeping 

9. Confidentiality of Business Locations 

10. Employer-Vaccine-Mandate-Related 

Concerns 

11. Constitutional Issues and OSHA’s 

Authority To Publish Information From 

Forms 300 and 301 

a. The First Amendment 

b. The Fourth Amendment 

c. The Fifth Amendment 

d. OSHA’s Authority To Publish 

Information Submitted Under This Rule 

12. Administrative Issues 

a. Public Hearing 

b. The Advisory Committee on 

Construction Safety and Health (ACCSH) 

c. Reasonable Alternatives Considered 

IV. Final Economic Analysis and Regulatory 

Flexibility Certification 

A. Introduction 

B. Changes From the Preliminary 

Economic Analysis (PEA) (Reflecting 

Changes in the Final Rule From the 

Proposal) 

1. Continued Submission of OSHA 300A 

Annual Summaries by Establishments 

With 250 or More Employees 

2. Additional Appendix B Industries 

3. Updated Data 

C. Cost 

1. Wages 

a. Wage Estimates in the PEA 

b. Comments on OSHA’s Wage Estimates 

c. Wage Estimates in the FEA 

2. Estimated Case Counts 

3. Familiarization 

4. Record Submission 

5. Custom Forms 

6. Batch-File Submissions 

7. Software/System Upgrades Needed 

8. Other Costs 

a. Harm to Reputation 

b. Additional Time Needed To Review for 

PII 

c. Company Name 

d. Training Costs 

D. Effect on Prices 

E. Budget Costs to the Government 

F. Total Cost 

G. Benefits 

H. Economic Feasibility 

I. Regulatory Flexibility Certification 

V. OMB Review Under the Paperwork 

Reduction Act of 1995 

A. Overview 

B. Summary of Information Collection 

Requirements 

VI. Unfunded Mandates 

VII. Federalism 

VIII. State Plans 

IX. National Environmental Policy Act 

X. Consultation and Coordination With 

Indian Tribal Governments Authority 

and Signature 

I. Background 

A. References and Exhibits 

In this preamble, OSHA references 

documents in Docket No. OSHA–2021– 

0006, the docket for this rulemaking. 

The docket is available at http://

www.regulations.gov, the Federal 

eRulemaking Portal. 

When citing exhibits in the docket, 

OSHA includes the term ‘‘Document 

ID’’ followed by the last four digits of 

the Document ID number. For example, 

OSHA’s preliminary economic analysis 

is in the docket as OSHA–2021–0006– 

0002. Citations also include the 

attachment number or other attachment 

identifier, if applicable, page numbers 

(designated ‘‘p.’’ or ‘‘Tr.’’ for pages from 

a hearing transcript), and in a limited 

number of cases a footnote number 

(designated ‘‘Fn.’’). In a citation that 

contains two or more Document ID 

numbers, the Document ID numbers are 

separated by semi-colons (e.g., 

‘‘Document ID 1231, Attachment 1, p. 6; 

1383, Attachment 1, p. 2’’). 

All materials in the docket, including 

public comments, supporting materials, 

meeting transcripts, and other 

documents, are listed on http://

www.regulations.gov. However, some 

exhibits (e.g., copyrighted material) are 

not available to read or download from 

that web page. All materials in the 

docket, including copyrighted material, 

are available for inspection through the 

OSHA Docket Office. Contact the OSHA 

Docket Office at (202) 693–2350 (TTY 

(877) 889–5627) for assistance in 

locating docket submissions. 

B. Introduction 

OSHA’s regulation at 29 CFR part 

1904 requires employers with more than 

10 employees in most industries to keep 

records of occupational injuries and 

illnesses at their establishments. 

Employers covered by the regulation 

must use three forms, or their 

equivalent, to record recordable 

employee injuries and illnesses: 

• OSHA Form 300, the Log of WorkRelated Injuries and Illnesses. This form 

includes information about the 

employee’s name, job title, date of the 

injury or illness, where the injury or 

illness occurred, description of the 

injury or illness (e.g., body part 

affected), and the outcome of the injury 

or illness (e.g., death, days away from 

work, job transfer or restriction). 

• OSHA Form 301, the Injury and 

Illness Incident Report. This form 

includes the employee’s name and 

address, date of birth, date hired, and 

gender and the name and address of the 

health care professional that treated the 

employee, as well as more detailed 

information about where and how the 

injury or illness occurred. 

• OSHA Form 300A, the Annual 

Summary of Work-Related Injuries and 

Illnesses. This form includes general 

information about an employer’s 

workplace, such as the average number 

of employees and total number of hours 

worked by all employees during the 

calendar year. It does not contain 

information about individual 

employees. Employers are required to 

prepare this form at the end of each year 

and post the form in a visible location 

in the workplace from February 1 to 

April 30 of the year following the year 

covered by the form. 

Section 1904.41 of the previous 

recordkeeping regulation also required 

two groups of establishments to 

electronically submit injury and illness 

data to OSHA once a year. 

• § 1904.41(a)(1) required 

establishments with 250 or more 

employees in industries that are 

required to routinely keep OSHA injury 

and illness records to electronically 

submit information from the Form 300A 

summary to OSHA once a year. 

• § 1904.41(a)(2) required 

establishments with 20–249 employees 

in certain designated industries (those 

listed on appendix A of part 1904 

subpart E) to electronically submit 

information from their Form 300A 

summary to OSHA once a year. 

Also, § 1904.41(a)(4) required each 

establishment that must electronically 

submit injury and illness information to 

OSHA to provide their Employer 

Identification Number (EIN) in their 

submittal. 

Under this final rule, three groups of 

establishments will be required to 

electronically submit information from 

their injury and illness recordkeeping 

forms to OSHA once a year. 

• Establishments with 20–249 

employees in certain designated 

industries (listed in appendix A to 

subpart E) will continue to be required 

to electronically submit information 

from their Form 300A annual summary 

to OSHA once a year (final 

§ 1904.41(a)(1)(i)). OSHA is also 

updating the NAICS codes used for 

appendix A to subpart E. 

• Establishments with 250 or more 

employees in industries that are 

required to routinely keep OSHA injury 

and illness records will continue to be 

required to electronically submit 

information from the Form 300A to 

OSHA once a year (final 

§ 1904.41(a)(1)(ii)). 

• Establishments with 100 or more 

employees in certain designated 

industries (listed in new appendix B to 

subpart E) will be newly required to 

electronically submit information from 

their OSHA Forms 300 and 301 to 

OSHA once a year (final 

§ 1904.41(a)(2)). The industries listed in 

new appendix B were chosen based on 


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47256 Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations 

1All employers covered by the OSH Act are 

covered by OSHA’s recordkeeping and reporting 

requirements found in 29 CFR part 1904. However, 

there are several exceptions to OSHA’s 

recordkeeping requirements that apply unless 

OSHA or the Bureau of Labor Statistics (BLS) 

informs them in writing that they must keep records 

(29 CFR 1904.1(a)(1), 1904.2(a)(1)). For example, 

employers with ten or fewer employees, as well as 

businesses with establishments in certain 

industries, are partially exempt from keeping OSHA 

injury and illness records (29 CFR 1904.1, 1904.2). 

The provision excepts most employers covered by 

the OSH Act. All employers covered by the OSH 

Act, including those that are partially exempt from 

keeping injury and illness records, are still required 

to report work-related fatalities, in-patient 

hospitalizations, amputations, and losses of an eye 

to OSHA within specified timeframes under 29 CFR 

1904.39. 

three measures of industry 

hazardousness. 

OSHA will also require 

establishments to include their 

company name when making electronic 

submissions to OSHA (final 

§ 1904.41(b)(10)). 

Additionally, although publication is 

not part of the regulatory requirements 

of this final rule, OSHA intends to post 

the collected establishment-specific, 

case-specific injury and illness 

information online. As discussed in 

more detail below, the agency will seek 

to minimize the possibility of the 

release of information that could 

reasonably be expected to identify 

individuals directly, such as employee 

name, contact information, and name of 

physician or health care professional. 

OSHA will minimize the possibility of 

releasing such information in multiple 

ways, including by limiting the worker 

information collected, designing the 

collection system to provide extra 

protections for some of the information 

that employers will be required to 

submit, withholding certain fields from 

public disclosure, and using automated 

software to identify and remove 

information that could reasonably be 

expected to identify individuals 

directly. 

OSHA has determined that the data 

collection will assist the agency in its 

statutory mission to assure safe and 

healthful working conditions for 

working people (see 29 U.S.C. 651(b)). 

In addition, OSHA has determined that 

the expanded public access to 

establishment-specific, case-specific 

injury and illness data will allow 

employers, employees, potential 

employees, employee representatives, 

customers, potential customers, 

researchers, and the general public to 

make more informed decisions about 

workplace safety and health at a given 

establishment. OSHA believes that this 

accessibility will ultimately result in the 

reduction of occupational injuries and 

illnesses. 

OSHA estimates that this rule will 

have economic costs of $7.7 million per 

year, including $7.1 million per year to 

the private sector, with average costs of 

$136 per year for affected 

establishments with 100 or more 

employees, annualized over 10 years 

with a discount rate of seven percent. 

The agency believes that the annual 

benefits, while unquantified, 

significantly exceed the annual costs. 

C. Regulatory History 

As discussed in section II, Legal 

Authority, the Occupational Safety and 

Health Act (OSH Act or Act) requires 

employers to keep records of employee 

illnesses and injuries as prescribed by 

OSHA through regulation. OSHA’s 

regulations on recording and reporting 

occupational injuries and illnesses (29 

CFR part 1904) were first issued in 1971 

(36 FR 12612 (July 2, 1971)). These 

regulations require the recording of 

work-related injuries and illnesses that 

involve death, loss of consciousness, 

days away from work, restricted work or 

transfer to another job, medical 

treatment beyond first aid, or diagnosis 

of a significant injury or illness by a 

physician or other licensed health care 

professional (29 CFR 1904.7). 

On July 29, 1977, OSHA amended 

these regulations to partially exempt 

businesses having ten or fewer 

employees during the previous calendar 

year from the requirement to record 

occupational injuries and illnesses (42 

FR 38568). Then, on December 28, 1982, 

OSHA amended the regulations again to 

partially exempt establishments in 

certain lower-hazard industries from the 

requirement to record occupational 

injuries and illnesses (47 FR 57699).1

OSHA also amended the recordkeeping 

regulations in 1994 (Reporting of 

Fatality or Multiple Hospitalization 

Incidents, 59 FR 15594) and 1997 

(Reporting Occupational Injury and 

Illness Data to OSHA, 62 FR 6434). 

Under the version of § 1904.41 added by 

the 1997 final rule, OSHA began 

requiring certain employers to submit 

their 300A data to OSHA annually 

through the OSHA Data Initiative (ODI). 

Through the ODI, OSHA collected data 

on injuries and acute illnesses 

attributable to work-related activities in 

the private sector from approximately 

80,000 establishments in selected highhazard industries. The agency used 

these data to calculate establishmentspecific 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 1952), along with 

the forms employers use to record those 

injuries and illnesses (66 FR 5916). The 

final rule also updated the list of 

industries that are partially exempt from 

recording occupational injuries and 

illnesses. 

On September 18, 2014, OSHA again 

amended the regulations to require 

employers to report work-related 

fatalities and severe injuries—in-patient 

hospitalizations, amputations, and 

losses of an eye—to OSHA and to allow 

electronic reporting of these events (79 

FR 56130). The final rule also revised 

the list of industries that are partially 

exempt from recording occupational 

injuries and illnesses. 

On May 12, 2016, OSHA amended the 

regulations on recording and reporting 

occupational injuries and illnesses to 

require employers, on an annual basis, 

to submit electronically to OSHA injury 

and illness information that employers 

are already required to keep under part 

1904 (81 FR 29624). Under the 2016 

revisions, establishments with 250 or 

more employees that are routinely 

required to keep records were required 

to electronically submit information 

from their OSHA Forms 300, 300A, and 

301 to OSHA or OSHA’s designee once 

a year, and establishments with 20 to 

249 employees in certain designated 

industries were required to 

electronically submit information from 

their OSHA annual summary (Form 

300A) to OSHA or OSHA’s designee 

once a year. In addition, that final rule 

required employers, upon notification, 

to electronically submit information 

from part 1904 recordkeeping forms to 

OSHA or OSHA’s designee. These 

provisions became effective on January 

1, 2017, with an initial submission 

deadline of July 1, 2017, for 2016 Form 

300A data. That submission deadline 

was subsequently extended to December 

15, 2017 (82 FR 55761). The initial 

submission deadline for electronic 

submission of information from OSHA 

Forms 300 and 301 was July 1, 2018. 

Because of a subsequent rulemaking, 

OSHA never received the data 

submissions from Forms 300 and 301 

that the 2016 final rule anticipated. 

On January 25, 2019, OSHA issued a 

final rule that amended the 

recordkeeping regulations to remove the 

requirement for establishments with 250 

or more employees that are routinely 

required to keep records to 

electronically submit information from 

their OSHA Forms 300 and 301 to 

OSHA or OSHA’s designee once a year. 

As a result, those establishments were 

required to electronically submit only 

information from their OSHA 300A 


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Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations 47257 

annual summary. The 2019 final rule 

also added a requirement for covered 

employers to submit their Employer 

Identification Number (EIN) 

electronically along with their injury 

and illness data submission (83 FR 

36494, 84 FR 380, 395–97). 

On March 30, 2022, OSHA issued a 

notice of proposed rulemaking (NPRM 

or proposed rule) proposing to amend 

the recordkeeping regulations to require 

establishments with 100 or more 

employees in certain designated 

industries to electronically submit 

information from their OSHA Forms 300 

and 301 to OSHA once a year (87 FR 

18528). In addition, OSHA proposed to 

continue the requirement for 

establishments with 20 or more 

employees in certain designated 

industries to electronically submit data 

from their OSHA Form 300A annual 

summary to OSHA once a year. OSHA 

also proposed to update the appendices 

containing the designated industries 

covered by the electronic submission 

requirement and to remove the 

requirement for establishments with 250 

or more employees not in a designated 

industry to electronically submit 

information from their Form 300A to 

OSHA on an annual basis. Further, 

OSHA expressed its intention to post 

the data from the proposed electronic 

submission requirement on a public 

website after identifying and removing 

information that could reasonably be 

expected to identify individuals 

directly, such as individuals’ names and 

contact information. Finally, OSHA 

proposed to require establishments to 

include their company name when 

making electronic submissions to 

OSHA. 

Comments on the NPRM were 

initially due on May 30, 2022 (87 

FR18528). However, in response to 

requests for an extension, OSHA 

published a second Federal Register 

notice on May 25, 2022, extending the 

comment period until June 30, 2022 (87 

FR 31793). By the end of the extended 

comment period, OSHA had received 87 

comments on the proposed rule. The 

issues raised in those comments are 

addressed herein. 

D. Related Litigation 

Both the 2016 and 2019 OSHA final 

rules that addressed the electronic 

submission of injury and illness data 

were challenged in court. In Texo ABC/ 

AGC, Inc., et al. v. Acosta, No. 3:16–cv– 

01998–L (N.D. Tex. filed July 8, 2016), 

and NAHB, et al. v. Acosta, No. 5:17– 

cv–00009–PRW (W.D. Okla. filed Jan. 4, 

2017), industry groups challenged 

OSHA’s 2016 final rule that required 

establishments with 250 or more 

employees to electronically submit data 

from their OSHA Forms 300 and 301 to 

OSHA (as well as other requirements 

not relevant to this rulemaking). The 

complaints alleged that the publication 

of establishment-specific injury and 

illness data would lead to misuse of 

confidential and proprietary 

information by the public and special 

interest groups. The complaints also 

alleged that publication of the data 

exceeds OSHA’s authority under the 

OSH Act and is unconstitutional under 

the First Amendment to the U.S. 

Constitution. After OSHA published a 

notice in the Federal Register on June 

28, 2017, noting that the agency planned 

to publish a proposal that would 

reconsider the requirements of the 2016 

final rule (82 FR 29261), Texo was 

administratively closed. The plaintiffs 

in NAHB dropped their claims relating 

to the 300 and 301 data submission 

requirement after the 2019 final rule 

was published (and moved forward with 

their other claims, which are still 

pending in the Western District of 

Oklahoma). 

In Public Citizen Health Research 

Group et al. v. Pizzella, No. 1:19–cv– 

00166 (D.D.C. filed Jan. 25, 2019) and 

State of New Jersey et al. v. Pizzella, No. 

1:19–cv–00621 (D.D.C. filed Mar. 6, 

2019), a group of public health 

organizations and a group of States filed 

separate lawsuits challenging OSHA’s 

2019 final rule rescinding the 

requirement for certain employers to 

submit the data from OSHA Forms 300 

and 301 to OSHA electronically each 

year. The U.S. District Court for the 

District of Columbia resolved the two 

cases in a consolidated opinion and 

held that rescinding the provision was 

within the agency’s discretion (Public 

Citizen Health Research Group et al. v. 

Pizzella, No. 1:19–cv–00166–TJK 

(D.D.C. Jan. 11, 2021)). The court first 

dismissed Public Citizen’s complaint for 

lack of subject-matter jurisdiction. Next, 

turning to the merits of the States’ 

complaint, the court held that OSHA’s 

rescission of the Form 300 and Form 

301 data-submission requirements was 

within the agency’s discretion based on 

its rebalancing of the ‘‘uncertain 

benefits’’ of collecting the 300 and 301 

data against the diversion of OSHA’s 

resources from other efforts and 

potential privacy harms to employees. 

The court also rejected the plaintiffs’ 

assertion that OSHA’s reasons for the 

2019 final rule were internally 

inconsistent. Both groups of plaintiffs 

have appealed to the U.S. Court of 

Appeals for the District of Columbia 

Circuit (Nos. 21–5016, 21–5018). 

Additionally, since 2020, the 

Department of Labor (DOL) has received 

multiple adverse decisions regarding the 

release of electronically submitted 300A 

data under the Freedom of Information 

Act (FOIA). In each of the cases, OSHA 

argued that electronically submitted 

300A injury and illness data are exempt 

from disclosure pursuant to the 

confidentiality exemption in FOIA 

Exemption 4. Two courts, one in the 

U.S. District Court for the Northern 

District of California and another in the 

U.S. District Court for the District of 

Columbia, disagreed with OSHA’s 

position (see Center for Investigative 

Reporting, et al., v. Department of 

Labor, No. 4:18–cv–02414–DMR, 2020 

WL 2995209 (N.D. Cal. June 4, 2020); 

Public Citizen Foundation v. United 

States Department of Labor, et al., No. 

1:18–cv–00117 (D.D.C. June 23, 2020)). 

In addition, on July 6, 2020, the 

Department received an adverse ruling 

from a magistrate judge in the Northern 

District of California in a FOIA case 

involving Amazon fulfillment centers. 

In that case, plaintiffs sought the release 

of individual 300A forms, which 

consisted of summaries of Amazon’s 

work-related injuries and illnesses and 

which were provided to OSHA 

compliance officers during specific 

OSHA inspections of Amazon 

fulfillment centers in Ohio and Illinois 

(see Center for Investigative Reporting, 

et al., v. Department of Labor, No. 3:19– 

cv–05603–SK, 2020 WL 3639646 (N.D. 

Cal. July 6, 2020)). 

In holding that FOIA Exemption 4 

was inapplicable, the courts rejected 

OSHA’s position that electronically 

submitted 300A injury and illness data 

are covered under the confidentiality 

exemption in FOIA Exemption 4. The 

decisions noted that the 300A form is 

posted in the workplace for three 

months and that there is no expectation 

that the employer must keep these data 

confidential or private. As a result, 

OSHA provided the requested 300A 

data to the plaintiffs, and posted 

collected 300A data on its public 

website beginning in August 2020. The 

data are available at https://

www.osha.gov/Establishment-SpecificInjury-and-Illness-Data and include the 

submissions for calendar years 2016, 

2017, 2018, 2019, 2020, and 2021. 

E. Injury and Illness Data Collection 

Currently, two U.S. Department of 

Labor data collections request and 

compile information from the OSHA 

injury and illness records that certain 

employers are required to keep under 29 

CFR part 1904: the annual collection 

conducted by OSHA under 29 CFR 

1904.41 (Electronic Submission of 

Employer Identification Number (EIN) 

and Injury and Illness Records to 


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47258 Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations 

OSHA), and the annual Survey of 

Occupational Injuries and Illnesses 

(SOII) conducted by the Bureau of Labor 

Statistics (BLS) under 29 CFR 1904.42. 

This final rule amends the regulation at 

§ 1904.41. It does not change the SOII or 

the authority for the SOII set forth in 

§ 1904.42. 

The BLS SOII is an establishmentbased survey used to estimate nationally 

representative incidence rates and 

counts of workplace injuries and 

illnesses. It also provides detailed case 

and demographic data for cases that 

involve one or more days away from 

work (DAFW) and for days of job 

transfer and restriction (DJTR). Each 

year, BLS collects data from Forms 300, 

301, and 300A from a scientifically 

selected probability sample of about 

230,000 establishments, covering nearly 

all private-sector industries, as well as 

State and local government. Title 44 

U.S.C. 3572 prohibits BLS from 

releasing establishment-specific and 

case-specific data to the general public 

or to OSHA. However, BLS has 

modified its collection procedures to be 

able to automatically import certain 

Form 300A submissions from the OSHA 

ITA into the BLS SOII Internet Data 

Collection Facility (IDCF). As discussed 

below, the Department is continuing to 

evaluate opportunities to further reduce 

duplicative reporting. 

II. Legal Authority 

A. Statutory Authority To Promulgate 

the Rule 

OSHA is issuing this final rule 

pursuant to authority expressly granted 

by several provisions of the OSH Act 

that address the recording and reporting 

of occupational injuries and illnesses. 

Section 2(b)(12) of the OSH Act states 

that one of the purposes of the OSH Act 

is to ‘‘assure so far as possible . . . safe 

and healthful working conditions . . . 

by providing for appropriate reporting 

procedures . . . which . . . will help 

achieve the objectives of th[e] Act and 

accurately describe the nature of the 

occupational safety and health 

problem’’ (29 U.S.C. 651(b)(12)). Section 

8(c)(1) requires each employer to ‘‘make, 

keep and preserve, and make available 

to the Secretary [of Labor] . . . , such 

records regarding his activities relating 

to this Act as the Secretary . . . may 

prescribe by regulation as necessary or 

appropriate for the enforcement of this 

Act or for developing information 

regarding the causes and prevention of 

occupational accidents and illnesses’’ 

(29 U.S.C. 657(c)(1)). Section 8(c)(2) 

directs the Secretary to prescribe 

regulations ‘‘requiring employers to 

maintain accurate records of, and to 

make periodic reports on, work-related 

deaths, injuries and illnesses other than 

minor injuries requiring only first aid 

treatment and which do not involve 

medical treatment, loss of 

consciousness, restriction of work or 

motion, or transfer to another job’’ (29 

U.S.C. 657(c)(2)). 

Section 8(g)(1) authorizes the 

Secretary ‘‘to compile, analyze, and 

publish, whether in summary or 

detailed form, all reports or information 

obtained under this section’’ (29 U.S.C. 

657(g)(1)). Section 8(g)(2) of the Act 

broadly empowers the Secretary to 

‘‘prescribe such rules and regulations as 

he may deem necessary to carry out 

[his] responsibilities under th[e] Act’’ 

(29 U.S.C. 657(g)(2)). 

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

673) contains a similar grant of 

authority. This section requires the 

Secretary to ‘‘develop and maintain an 

effective program of collection, 

compilation, and analysis of 

occupational safety and health 

statistics’’ and ‘‘compile accurate 

statistics on work injuries and illnesses 

which shall include all disabling, 

serious, or significant injuries and 

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

Section 24 also requires employers to 

‘‘file such reports with the Secretary as 

he shall prescribe by regulation’’ (29 

U.S.C. 673(e)). These reports are to be 

based on ‘‘the records made and kept 

pursuant to section 8(c) of this Act’’ (29 

U.S.C. 673(e)). 

Section 20 of the Act (29 U.S.C. 669) 

contains additional implicit authority 

for collecting and disseminating data on 

occupational injuries and illnesses. 

Section 20(a) empowers the Secretaries 

of Labor and Health and Human 

Services to consult on research 

concerning occupational safety and 

health problems, and provides for the 

use of such research, ‘‘and other 

information available,’’ in developing 

criteria on toxic materials and harmful 

physical agents. Section 20(d) states that 

‘‘[i]nformation obtained by the Secretary 

. . . under this section shall be 

disseminated by the Secretary to 

employers and employees and 

organizations thereof’’ (29 U.S.C. 

669(d)). 

The OSH Act authorizes the Secretary 

of Labor to issue two types of 

occupational safety and health rules: 

standards and regulations. Standards, 

which are authorized by Section 6 of the 

Act (29 U.S.C. 655), aim to correct 

particular identified workplace hazards, 

while regulations further the general 

enforcement and detection purposes of 

the OSH Act (see Workplace Health & 

Safety Council v. Reich, 56 F.3d 1465, 

1468 (D.C. Cir. 1995) (citing La. Chem. 

Ass’n v. Bingham, 657 F.2d 777, 781–82 

(5th Cir. 1981)); United Steelworkers of 

Am. v. Auchter, 763 F.2d 728, 735 (3d 

Cir. 1985)). Recordkeeping requirements 

promulgated under the Act are 

characterized as regulations (see 29 

U.S.C. 657 (using the term ‘‘regulations’’ 

to describe recordkeeping 

requirements); see also Workplace 

Health & Safety Council v. Reich, 56 

F.3d 1465, 1468 (D.C. Cir. 1995) (citing 

La. Chem. Ass’n. v. Bingham, 657 F.2d 

777, 781–82 (5th Cir. 1981); United 

Steelworkers of Am. v. Auchter, 763 

F.2d 728, 735 (3d Cir. 1985)). 

B. Fourth Amendment Issues 

This final rule does not infringe on 

employers’ Fourth Amendment rights. 

The Fourth Amendment protects against 

searches and seizures of private 

property by the government, but only 

when a person has a ‘‘legitimate 

expectation of privacy’’ in the object of 

the search or seizure (Rakas v. Illinois, 

439 U.S. 128, 143–47 (1978)). There is 

little or no expectation of privacy in 

records that are required by the 

government to be kept and made 

available (Free Speech Coalition v. 

Holder, 729 F. Supp. 2d 691, 747, 750– 

51 (E.D. Pa. 2010) (citing cases); United 

States v. Miller, 425 U.S. 435, 442–43 

(1976); cf. Shapiro v. United States, 335 

U.S. 1, 33 (1948) (no Fifth Amendment 

interest in required records)). 

Accordingly, the Fourth Circuit held, in 

McLaughlin v. A.B. Chance, that an 

employer has little expectation of 

privacy in the records of occupational 

injuries and illnesses kept pursuant to 

OSHA regulations and must disclose 

them to the agency on request (842 F.2d 

724, 727–28 (4th Cir. 1988)). 

Even if there were an expectation of 

privacy, the Fourth Amendment 

prohibits only unreasonable intrusions 

by the government (Kentucky v. King, 

131 S. Ct. 1849, 1856 (2011)). The 

information submission requirements in 

this final rule are reasonable. The 

requirements serve a substantial 

government interest in the health and 

safety of workers, have a strong 

statutory basis, and rest on reasonable, 

objective criteria for determining which 

employers must report information to 

OSHA (see New York v. Burger, 482 U.S. 

691, 702–703 (1987)). 

OSHA notes that two courts have 

held, contrary to A.B. Chance, that the 

Fourth Amendment requires prior 

judicial review of the reasonableness of 

an OSHA field inspector’s demand for 

access to injury and illness logs before 

the agency could issue a citation for 

denial of access (McLaughlin v. Kings 

Island, 849 F.2d 990 (6th Cir. 1988); 

Brock v. Emerson Electric Co., 834 F.2d 


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2OSHA has determined that it is necessary and 

appropriate to require certain establishments to 

electronically submit case-specific, establishmentspecific data from their Forms 300 and 301 to 

OSHA. Any claimed reliance interest in the prior 

policy, which did not contain that requirement, is 

outweighed by the significant benefits to 

occupational safety and health, discussed in 

Section III.B.4 of the Summary and Explanation, 

that OSHA expects to accrue from this rule (see 

Regents of the Univ. of California, 140 S. Ct. at 1914 

(it is ‘‘the agency’s job’’ to determine ‘‘in the 

particular context before it, that other interests and 

policy concerns outweigh any reliance interests’’)). 

994 (11th Cir. 1987)). Those decisions 

are inapposite here. The courts based 

their rulings on a concern that field 

enforcement staff had unbridled 

discretion to choose the employers they 

would inspect and the circumstances in 

which they would demand access to 

employer records. The Emerson Electric 

court specifically noted that in 

situations where ‘‘businesses or 

individuals are required to report 

particular information to the 

government on a regular basis[,] a 

uniform statutory or regulatory 

reporting requirement [would] satisf[y] 

the Fourth Amendment concern 

regarding the potential for arbitrary 

invasions of privacy’’ (834 F.2d at 997, 

n.2). This rule, like that hypothetical, 

establishes general reporting 

requirements based on objective criteria 

and does not vest field staff with any 

discretion. The employers that are 

required to report data, the information 

they must report, and the time when 

they must report it are clearly identified 

in the text of the rule and in 

supplemental notices that will be 

published pursuant to the Paperwork 

Reduction Act. 

C. Publication of Collected Data and 

FOIA 

FOIA generally supports OSHA’s 

intention to publish information on a 

publicly available website. FOIA 

provides that certain Federal agency 

records must be routinely made 

‘‘available for public inspection in an 

electronic format’’ (see 5 U.S.C. 

552(a)(2) (2016)). Subsection (a)(2)(D)(ii) 

provides that agencies must include any 

records processed and disclosed in 

response to a FOIA request that ‘‘the 

agency determines have become or are 

likely to become the subject of 

subsequent requests for substantially the 

same records’’ or ‘‘have been requested 

3 or more times.’’ 

Based on its experience, OSHA 

believes that the recordkeeping 

information from the Forms 300, 301, 

and 300A required to be submitted 

under this rule will likely be the subject 

of multiple FOIA requests in the future. 

Consequently, the agency plans to place 

the recordkeeping information that will 

be posted on the public OSHA website 

in its Electronic FOIA Library. Since 

agencies may ‘‘withhold’’ (i.e., not make 

available) a record (or portion of such a 

record) if it falls within a FOIA 

exemption, just as they can do in 

response to FOIA requests, OSHA will 

place the published information in its 

FOIA Library consistent with all FOIA 

exemptions. 

D. Reasoned Explanation for Policy 

Change 

When a Federal agency action 

changes or reverses prior policy, that 

action is subject to the same standard of 

review as an action that addresses an 

issue for the first time or is consistent 

with prior policy (F.C.C. v. Fox 

Television Stations, Inc., 556 U.S. 502, 

514–15 (2009)). As with any other 

agency action, agencies must simply 

‘‘provide a reasoned explanation for the 

change’’ (Encino Motorcars, LLC v. 

Navarro, 579 U.S. 211, 221 (2016)). An 

agency that is changing policy must 

‘‘display awareness that it is changing 

position,’’ but ‘‘need not demonstrate 

. . . that the reasons for the new policy 

are better than the reasons for the old 

one’’; ‘‘it suffices that the new policy is 

permissible under the statute, that there 

are good reasons for it, and that the 

agency believes it to be better, which the 

conscious change of course adequately 

indicates’’ (F.C.C., 556 U.S. at 515; 

accord DHS v. Regents of Univ. of 

California, 140 S. Ct. 1891 (2020); 

Encino Motorcars, LLC, 579 at 221; see 

also Advocates for Highway & Auto 

Safety v. FMCSA, 41 F.4th 586 (D.C. Cir. 

2022) (upholding 2020 change to 2015 

rule); Overdevest Nurseries, L.P. v. 

Walsh, 2 F. 4th 977 (D.C. Cir. 2021) 

(upholding 2010 change to 2008 rule)). 

In sum, the Administrative Procedure 

Act imposes ‘‘no special burden when 

an agency elects to change course’’ 

(Home Care Ass’n of Am. v. Weil, 799 

F.3d 1084, 1095 (D.C. Cir. 2015)). 

Although agencies may need to 

provide more detailed explanations for 

changes in policy that ‘‘engendered 

serious reliance interests,’’ F.C.C. v. Fox 

Television Stations, Inc., 556 U.S. 502, 

515 (2009), OSHA has found no such 

reliance interests at stake in this 

rulemaking. The prior policy, contained 

within the 2019 final recordkeeping 

rule, represented a return to the pre2016 status quo wherein large 

employers were not required to submit 

their Form 300 and Form 301 

information to OSHA. Essentially, the 

prior policy relieved employers of the 

requirement to incur the costs they 

would have had to incur to comply with 

the 2016 final rule. Therefore, the prior 

policy did not require employers to take 

any steps or invest any resources to 

comply with it. Further, OSHA made it 

clear in the 2019 final rule that its 

decision was based on a temporal 

weighing of the potential risks to 

privacy against the benefits of collecting 

the data (e.g., ‘‘OSHA has determined 

that because it already has systems in 

place to use the 300A data for 

enforcement targeting and compliance 

assistance without impacting worker 

privacy, and because the Form 300 and 

301 data would provide uncertain 

additional value, the Form 300A data 

are sufficient for enforcement targeting 

and compliance assistance at this time’’ 

(84 FR 392)). Employers were therefore 

placed on notice that the policy 

announced in the 2019 rule could 

change based on OSHA’s weighing of 

the relevant considerations over time, 

further alleviating any reliance interests 

the rule might have engendered. In any 

event, OSHA provides detailed and 

specific reasons for the change in prior 

policy throughout this preamble.2

III. Summary and Explanation of the 

Final Rule 

OSHA is amending its occupational 

injury and illness recordkeeping 

regulations at 29 CFR part 1904 to 

require certain employers to 

electronically submit injury and illness 

information to OSHA that employers are 

already required to keep. Specifically, 

this final rule requires establishments 

with 100 or more employees in certain 

designated industries (i.e., the 

industries on appendix B to subpart E 

of part 1904) to electronically submit 

information from their OSHA Forms 300 

and 301 to OSHA once a year. OSHA 

will not collect certain information, like 

employee and healthcare provider 

names and addresses, from the Forms 

300 and 301 in order to protect the 

privacy of workers and other 

individuals identified on those forms. In 

addition, the final rule retains the 

requirements for the annual electronic 

submission of information from the 

Form 300A annual summary. 

Establishments with 20 to 249 

employees in certain industries (i.e., 

those on appendix A to subpart E of part 

1904) will continue to be required to 

electronically submit information from 

their OSHA Form 300A to OSHA once 

a year. And, all establishments with 250 

or more employees that are required to 

keep records under part 1904 will 

continue to be required to electronically 

submit information from their Form 

300A to OSHA once a year. In addition, 

the final rule requires establishments to 


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include their legal company name as 

part of their annual submission. OSHA 

intends to post some of the information 

from these annual electronic 

submissions on a public website after 

removing any submitted information 

that could reasonably be expected to 

identify individuals directly. OSHA 

received a number of comments on the 

proposed rule, which was published in 

March 2022. 

Many commenters strongly support 

this rulemaking effort (e.g., Docket IDs 

0008, 0026, 0029, 0033, 0040, 0047, 

0048, 0049, 0061, 0063, 0067, 0069, 

0073, 0084, 0089), while others are 

strenuously opposed (e.g., Docket IDs 

0043, 0050, 0052, 0053, 0058, 0059, 

0062, 0088, 0090). Several commenters 

requested that OSHA withdraw the 

proposed rule (e.g., Docket IDs 0042, 

0065, 0075). Organizations that 

represent employees generally 

advocated for OSHA to proceed with the 

rulemaking, arguing that collecting and 

publishing workplace illness and injury 

information will lead to improvements 

in worker safety and health in a number 

of different ways. Organizations 

commenting on behalf of employers 

argued, in many cases, that the required 

submission and subsequent publication 

of this information could harm 

businesses or result in violations of 

employees’ privacy. OSHA has 

evaluated the public comments and 

other evidence in the record and agrees 

with commenters who believe that 

electronic submission of worker injury 

and illness information to OSHA will 

lead to safer workplaces. The agency has 

decided to move forward with a final 

rule requiring electronic submission of 

this information. 

Public comments regarding the final 

regulatory provisions and specific issues 

related to the submission and 

publication of workplace injury and 

illness information are discussed 

throughout this preamble. The 

Summary and Explanation is organized 

by regulatory provision, with issues 

related to each provision discussed in 

the section for that provision. 

Comments not specifically related to a 

regulatory provision and comments that 

apply to the rulemaking in general are 

addressed at the end of the Summary 

and Explanation. OSHA’s economic 

analysis and related issues and 

comments are discussed in Section IV, 

Final Economic Analysis, following the 

Summary and Explanation. 

A. Section 1904.41(a)(1)(i) and (ii)— 

Annual Electronic Submission of 

Information From OSHA Form 300A 

Summary of Work-Related Injuries and 

Illnesses 

The final rule requires electronic 

submission of Form 300A information 

from two categories of establishments. 

First, § 1904.41(a)(1)(i) requires 

establishments with 20–249 employees 

that are in an industry listed in 

appendix A of subpart E of part 1904 to 

electronically submit information from 

their Form 300A to OSHA. The 

industries included on appendix A are 

listed by the NAICS codes from 2017. 

Second, § 1904.41(a)(1)(ii) requires 

establishments with 250 or more 

employees that are required to keep 

records under part 1904 to 

electronically submit their Form 300A 

information to OSHA. For all 

establishments, the size of the 

establishment is determined based on 

how many employees the establishment 

had during the previous calendar year. 

Data must be submitted annually, for 

the previous calendar year, by the date 

specified in § 1904.41(c), which is 

March 2. 

As discussed in more detail below, 

the requirements for establishment 

submission of Form 300A information 

under the final rule are substantively 

identical to the requirements previously 

found in § 1904.41(a)(1) and (a)(2). In 

other words, all establishments with 250 

or more employees are still required to 

submit information from Form 300A, 

and establishments with 20–249 

employees in industries on appendix A 

of subpart E are still required to submit 

information from their Form 300A. 

However, OSHA has made minor 

revisions to the language of final 

§ 1904.41(a)(1)(i) and (ii), and the final 

regulatory text of both provisions has 

been restructured, with final 

§ 1904.41(a)(1)(i) addressing the Form 

300A submission requirements for 

establishments with 20–249 employees 

and final § 1904.41(a)(1)(ii) addressing 

the Form 300A submission 

requirements for establishments with 

250 or more employees. As discussed 

elsewhere in this preamble, final 

§ 1904.41(a)(2) addresses the submission 

requirements for OSHA Forms 300 and 

301 by establishments with 100 or more 

employees in the industries listed in 

appendix B. The final rule’s 

requirements in § 1904.41(a)(1) are 

discussed below, along with the 

proposed provisions and related 

evidence in the rulemaking record. 

1. Section 1904.41(a)(1)(i)— 

Establishments With 20–249 Employees 

That Are Required To Submit 

Information From OSHA Form 300A 

Under proposed § 1904.41(a)(1), 

establishments that had 20 or more 

employees at any time during the 

previous calendar year, and that are 

classified in an industry listed in 

appendix A to subpart E, would have 

been required to electronically submit 

information from their OSHA Form 

300A to OSHA or OSHA’s designee 

once a year. As OSHA explained in the 

preamble to the NPRM, this proposed 

provision was essentially the same as 

the previous requirements. OSHA 

requested comment on proposed 

§ 1904.41(a)(1) generally. 

OSHA did not receive many 

comments specifically about the 

proposed continuation of the 

requirement for certain establishments 

with 20 or more employees to submit 

their Form 300A data electronically. 

The Laborers Health and Safety Fund of 

North America stated that the proposal 

for establishments with 20 or more 

employees in certain high-hazard 

industries to electronically submit Form 

300A data to OSHA ‘‘must be a 

requirement,’’ and emphasized the 

value of the data for numerous 

interested parties (Docket ID 0080). The 

Communications Workers of America 

(CWA) urged OSHA to expand the 

submission requirements for the 300A 

by requiring all establishments with at 

least 20 employees to submit 

information from the Form 300A, 

instead of limiting the requirement to 

only those industries on appendix A 

(Docket ID 0092). In addition, the 

National Federation of Independent 

Business (NFIB) commented on this 

provision, noting that ‘‘the proposed 

rule lowers the previous threshold that 

triggers a duty to file with OSHA 

automatically (i.e., without any request 

from OSHA) from 250 or more 

employees to 20 or more employees, 

increasing the number of small and 

independent businesses within the 

appendix A industries required to 

submit Form 300A’’ (Docket ID 0036). 

However, NFIB’s comment appears to 

misunderstand the previous 

requirements. As OSHA explained in 

the preamble to the proposed rule, 

establishments with 20–249 employees, 

in industries listed in appendix A, were 

already required to electronically 

submit information from their OSHA 

300A to OSHA every year (87 FR18535– 

6). OSHA was not proposing an 

expansion of this requirement. 

Having reviewed the evidence in the 

record, OSHA has decided to retain the 


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requirement for establishments with 20– 

249 employees to annually submit their 

Form 300A data to OSHA. As noted by 

the Laborers Health and Safety Fund of 

North America and discussed further 

below, this requirement provides a good 

deal of useful data to many types of 

interested parties and should not be 

displaced. OSHA acknowledges the 

comments supporting expansion of the 

previous requirement but notes that 

expanding the requirement for 

submission of Form 300A data to all 

establishments with 20–249 employees 

that are covered by part 1904 would 

expand the data collection to a total of 

about 557,000 establishments with 20– 

249 employees, according to 2019 

County Business Patterns data (https:// 

www.census.gov/programs-surveys/cbp/ 

data/datasets.html). In contrast, OSHA 

estimates that about 463,000 

establishments with 20–249 employees 

in industries that are in appendix A will 

be required to submit data under the 

final rule (https://www.census.gov/ 

programs-surveys/cbp/data/ 

datasets.html). OSHA does not believe, 

at this time, that the benefits from the 

additional data collection would 

outweigh the disadvantages of the 

additional time and resources required 

for compliance. 

In the previous regulation, this 

requirement was at § 1904.41(a)(2). In 

the final rule, it is at § 1904.41(a)(1)(i). 

This final rule will not impose any new 

requirements on establishments with 

20–249 employees to electronically 

submit information from their Form 

300A to OSHA. All establishments that 

will be required to electronically submit 

Form 300A information to OSHA on an 

annual basis under the final rule are 

already required to do so. 

Additionally, as noted above, OSHA 

revised the language of this requirement 

slightly for clarity. Specifically, the 

previous version referred to 

establishments with ‘‘20 or more 

employees but fewer than 250 

employees[,]’’ while final 

§ 1904.41(a)(1)(i) refers to 

establishments with ‘‘20–249 

employees[.]’’ These clarifying edits do 

not change the substantive requirements 

of the provision. 

Similarly, OSHA revised the language 

of proposed § 1904.41(a)(1) in this final 

rule for clarity without adding any new 

requirements for employers. 

Specifically, proposed § 1904.41(a)(1) 

would have required establishments 

with 20 or more employees that are in 

an industry listed in appendix A of 

subpart E of part 1904 to electronically 

submit information from their Form 

300A to OSHA. The final version of that 

provision, § 1904.41(a)(1)(i), addresses 

only establishments with 20–249 

employees, because final 

§ 1904.41(a)(1)(ii) addresses 

establishments with 250 or more 

employees. This change was made to 

eliminate the overlap, and potential 

confusion, that would have resulted if 

both § 1904.41(a)(1)(i) and 

§ 1904.41(a)(1)(ii) addressed 

establishments with 250 or more 

employees. 

2. Section 1904.41(a)(1)(ii)— 

Establishments With 250 or More 

Employees That Are Required To 

Submit Information From OSHA Form 

300A 

Although OSHA proposed to maintain 

the same Form 300A submission 

requirement for establishments with 20– 

249 employees, the agency proposed to 

remove the electronic submission 

requirement for certain establishments 

with 250 or more employees. Under 

previous § 1904.41(a)(1), all 

establishments of this size in industries 

routinely required to keep injury and 

illness records were required to 

electronically submit information from 

their Form 300A to OSHA once a year. 

The proposal would have required this 

submission only from those 

establishments with 250 or more 

employees in industries listed in 

appendix A to subpart E. As explained 

in the preamble to the proposed rule, 

OSHA had preliminarily determined 

that collecting Form 300A data from a 

relatively small number of large 

establishments in lower-hazard 

industries was not a priority for OSHA 

inspection targeting or compliance 

assistance activities. OSHA asked for 

comment on the proposed changes to 

§ 1904.41(a)(1) generally, and also 

specifically asked the question, ‘‘Is it 

appropriate for OSHA to remove the 

requirement for establishments with 250 

or more employees, in industries not 

included in appendix A, to submit the 

information from their OSHA Form 

300A?’’ (87 FR18546). 

There were no comments specifically 

supporting the proposal to remove the 

requirement for establishments with 250 

or more employees, in industries not 

included in appendix A, to submit the 

information from their OSHA Form 

300A. In contrast, multiple commenters 

opposed the proposal and urged OSHA 

to retain the existing requirement for 

establishments with 250 or more 

employees that are normally required to 

report under part 1904 to submit data 

from their 300As (e.g., Docket IDs 0024, 

0035, Attachment 2, 0039, 0040, 0045, 

0047, 0048, 0049, 0051, 0061, 0066, 

0067, 0069, 0079, 0080, 0083, 0089, 

0092, 0093). Reasons for objecting to the 

proposed removal of the requirement for 

some large establishments to submit 

data from their Form 300As included: 

OSHA offered no compelling reason for 

removal; the need for continued 

oversight over large establishments in 

lower-hazard industries in general and 

certain industries in particular; the 

ability to use the data to protect the 

large number of employees employed in 

these establishments; and the value of 

the public information to employee 

safety and health efforts. 

Some commenters argued that OSHA 

had not made a persuasive case for 

removing the requirement for large 

establishments in industries not listed 

on appendix A to submit their 300A 

data. For example, Hunter Cisiewski 

commented, ‘‘The proposed rule 

ultimately fails to present a compelling 

argument for why ‘lower hazard’ 

industries should no longer be required 

to electronically submit Form 300A 

when they must still keep record of the 

form, present it to employees on 

request, and post it publicly in the 

workplace’’ (Docket ID 0024). The AFL– 

CIO argued, ‘‘There is no reason that 

these establishments should be 

excluded from a standard they are 

already subject to and have been 

complying with. OSHA should at 

minimum, maintain the requirements 

for large establishments in these sectors 

that are already in place’’ (Docket ID 

0061; see also Docket ID 0079). 

Similarly, Public Citizen and the United 

Food and Commercial Workers 

International Union (UFCW) noted that 

there would be no significant burden on 

employers to maintaining the 

requirement because these employers 

are already required to keep Form 300A 

data and they have systems in place for 

submitting the data to OSHA 

electronically (Docket IDs 0093, 0066). 

The United Steelworkers Union (USW) 

argued that keeping industries covered 

helps increase the stability of the 

system. USW urged OSHA to ‘‘focus on 

expanding, not limiting, those covered 

by disclosure requirements, and to 

ensure that all employers currently 

covered by the reporting requirements 

remain covered’’ (Docket ID 0067; see 

also Docket ID 0080). The UFCW stated 

that ‘‘[A]ll available evidence reflects 

that OSHA’s current requirements 

provide easy access to important data 

that is crucial to reducing and 

preventing workplace injuries and 

illnesses’’ (Docket ID 0066). 

Other commenters, such as the 

National Institute for Occupational 

Safety and Health (NIOSH) and the 

International Brotherhood of Teamsters, 

noted that although the industries that 

are not listed in appendix A may have 


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relatively low injury rates overall, 

‘‘injury rates can vary greatly across 

employers and establishments within 

industries. The requirement for large 

establishments to submit a 300A Log 

annually would be a reasonable way to 

identify establishments that have high 

injury rates for their industry, and to 

identify subsegments of industries that 

may have more hazardous work 

processes and activities’’ (Docket ID 

0035, Attachment 2; see also Docket ID 

0083). Similarly, the Seventeen 

Attorneys General from New Jersey, 

California, Connecticut, Delaware, the 

District of Columbia, Hawaii, Illinois, 

Maryland, Massachusetts, Michigan, 

Minnesota, Nevada, New Mexico, New 

York, Oregon, Rhode Island, and 

Vermont (Seventeen AGs) noted their 

states’ concern that removing the 300A 

submission requirement for ‘‘lowerhazard’’ industries would leave Federal 

OSHA and State occupational safety and 

health agencies with little way of 

determining whether these industries 

were becoming more dangerous for 

workers over time. This, in turn, could 

affect the States’ outreach and 

enforcement efforts. ‘‘For example, if 

[s]tates had previously conducted 

enforcement and outreach in ‘low 

hazard’ industries, thus keeping risks 

down, but deprioritize such 

enforcement based on a lack of 

reporting, any uptick of illnesses and 

injuries in those industries, requiring 

enforcement efforts, may initially go 

unnoticed by the [s]tates’’ (Docket ID 

0045). 

Other commenters emphasized the 

significant number of workers employed 

by the large establishments that OSHA 

had proposed to exclude from 

submitting their 300A data, and the 

usefulness of the data in providing them 

with safe work environments. Hunter 

Cisiewski estimated that at least 666,250 

workers are employed by the 

approximately 2,665 establishments 

with 250 or more employees that were 

proposed to be removed from the Form 

300A submission requirement 

(assuming that each establishment 

employs only 250 workers). The same 

commenter also noted that the workers 

in these large establishments already 

rely on the required reporting of their 

injuries to OSHA ‘‘to ensure compliance 

with workplace regulations’’ (Docket ID 

0024). Similarly, the Council of State 

and Territorial Epidemiologists (CSTE) 

noted that even if the industries 

proposed for exclusion have lower 

injury and illness rates than the 

industries on appendix A, they employ 

a large number of people. ‘‘Numbers [of 

workers] as well as rates of work-related 

injuries or illness need to be considered 

in setting prevention priorities. These 

establishments need to provide a safe 

work environment, and electronic 

collection of summary data will allow 

OSHA and public health agencies to 

monitor their ability to do so’’ (Docket 

ID 0040). The International Brotherhood 

of Teamsters commented, ‘‘we think 

continuing to collect OSHA 300A data 

for the large numbers of workers 

employed in these establishments, 

would help to identify less obvious 

problems and implement corresponding 

preventive measures’’ (Docket ID 0083). 

Various commenters pointed to 

known or potentially hazardous 

industry segments that would have been 

exempt from submitting 300A data 

under the proposal. For example, the 

National Council for Occupational 

Safety and Health (National COSH) as 

well as the Centro de los Derechos del 

Migrantes pointed to the temporary 

service industry and the home health 

care industry as industries with known 

hazards for which OSHA and the public 

should have access to injury and illness 

data (Docket IDs 0048, 0089; see also 

Docket ID 0049). The AFL–CIO pointed 

to home health services, an industry 

heavily affected by COVID–19, 

employment services, which includes 

vulnerable temporary workers, and 

some wholesalers with rates of cases 

with days away from work, restricted 

work activity, or job transfer (DART) 

above 2.0 per 10,000 workers in 2020 

(e.g., NAICS 4231, 4233, 4235, 423930, 

4244, 4248, 4249) as industries 

containing large establishments that 

would be newly exempted from the 

300A submission requirements The 

AFL–CIO argued that ‘‘limiting the data 

these industries provide the agency 

would severely limit the ability to track 

and identify emerging workplace 

hazards’’ (Docket ID 0061). 

Some commenters argued that 

maintaining the existing 300A reporting 

requirement for all large establishments 

is particularly important because the 

industries on appendix A reflect injury 

and illness data from the BLS SOII that 

is not current. Therefore, exempting 

industries not on appendix A could 

result in missing information from 

industries that may have become more 

dangerous since publication of the SOII 

data for 2011 to 2013. The United 

Steelworkers Union (USW) commented, 

‘‘By tying the proposed rule to outdated 

and underreported injury and illness 

data, many employers with 250 or more 

employees in potentially high-hazard 

industries would be exempted, limiting 

workers’ ability to make informed 

decisions about a workplace’s safety and 

health. . . . These industries are 

currently covered by reporting 

requirements and many, like home 

health, have seen a rise in injuries and 

illnesses since the COVID–19 pandemic 

began’’ (Docket ID 0067). Public Citizen 

echoed this comment, stating that past 

injury rates, which are used to designate 

industries required to submit data, may 

not reflect more recent safety 

conditions. Public Citizen noted, in 

addition, that the pandemic served as a 

reminder ‘‘that even seemingly ‘lowhazard’ workplaces can be the epicenter 

of deadly outbreaks’’ (Docket ID 0093). 

Finally, a number of commenters 

underscored the value of the 300A data 

that is being collected from large 

establishments. The UFCW urged OSHA 

to retain the requirement for collection 

from all large establishments because it 

would allow many types of users (the 

public, employers, workers, researchers, 

and the government) to use the data ‘‘in 

the very positive ways that the UFCW 

has used it’’ already. The UFCW 

described, in its comment, the many 

specific ways in which UFCW has used 

published and union-collected illness 

and injury data from the OSHA Form 

300A, among other information, to 

increase safety and health at large 

union-represented facilities (Docket ID 

0066). Public Citizen commented that 

‘‘the value of continuing to collect the 

information from these employers 

outweighs any supposed burden . . . 

data collected from electronic 

submission of injury and illness 

information can help identify broad 

patterns from small injury and illness 

numbers per establishment. Having this 

additional data from Form 300A 

summaries would assist with research 

into specific types of injuries and 

illnesses’’ (Docket ID 0093). 

In addition to supporting 

maintenance of the requirement for 

submission of 300A data by large 

establishments, several commenters 

supported expanding the submission 

requirements for large establishments 

even further. For example, the National 

Employment Law Project (NELP) 

supported requiring all employers with 

250 or more employees to submit 

information from the Form 300 Log in 

addition to the Form 300A. NELP 

argued that certain industries, such as 

home health care and employment 

services, contain very large employers 

that have Total Case Rates (TCRs) that 

are well above the private sector 

average. NELP therefore urged OSHA to 

retain as well as expand electronic 

submission requirements for large 

establishments with 250 or more 

employees in industries that are 

required to keep records under part 

1904 so that researchers and other 


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organizations could more effectively 

track and monitor occupational health 

and safety trends in home health care, 

employment services, and other sectors 

(Docket ID 0049; see also Docket ID 

0089). 

The Laborers’ Health and Safety Fund 

of North America argued that OSHA 

should require all establishments with 

250 or more employees to submit the 

Form 300 and Form 301, in addition to 

the Form 300A: ‘‘Establishments with 

250 or more employees account for large 

contractors that work on larger 

construction sites that can be 

considered high-risk. For these reasons, 

establishments should be required to 

submit electronic OSHA 300, 300A and 

301 forms to not only track injury and 

illness, but prove to OSHA that they are 

taking the steps to mitigate and prevent 

them from happening’’ (Docket ID 

0080). 

Having reviewed the information in 

the record on this issue, OSHA has 

decided not to make the proposed 

change of restricting the universe of 

large establishments that are required to 

submit data from Form 300A. Instead, 

the agency will maintain the 

requirement for all establishments with 

250 or more employees that are covered 

by part 1904 to submit the information 

from their OSHA Form 300A to OSHA, 

or its designee, once a year. As 

explained by commenters, these 

establishments are already submitting 

this information, so there is no new 

burden for employers. Furthermore, 

access to the information provides 

multiple benefits for workers, Federal 

and State occupational safety and health 

agencies, and other interested parties. 

For example, continuing to collect and 

make this data available to the public 

will allow tracking of industry hazards 

over time, even for industries that are 

not on appendix A. Commenters noted 

that this type of tracking was 

particularly critical for industry 

segments and establishments that have 

injury rates higher than the rate for their 

4-digit NAICS industry overall. They 

also noted that requiring information to 

be submitted from all large 

establishments will help blunt the effect 

of using SOII data that is several years 

old in determining which NAICS will be 

included on appendix A. OSHA agrees 

with these rationales. 

Although OSHA stated in the 

proposal that collecting Form 300A data 

from this relatively small number of 

large establishments in lower-hazard 

industries is not a priority for OSHA 

inspection targeting or compliance 

assistance, OSHA is persuaded by 

commenters who see the value in 

providing such data to the public; this 

includes the UFCW, which has been 

using this data to make positive safety 

and health changes in large 

establishments. In addition, OSHA 

recognizes the large number of workers 

represented by the relatively small 

number of establishments that would 

have been affected by the proposed 

change and does not wish to remove 

resources that could be used to improve 

their safety and health. 

OSHA acknowledges the comments 

supporting expansion of the final 

requirement by requiring submission of 

information from Forms 300 and 301 by 

all large establishments (250 or more 

employees) required to keep records 

under part 1904. However, this change 

would expand the universe of large 

establishments required to submit Form 

300 and Form 301 data from about 

22,000 (establishments with at least 250 

employees that are in NAICS listed on 

appendix B) to about 40,000 

(establishments with at least 250 

employees that are required to keep 

records under part 1904), an increase of 

80 percent (data are as of 2019; see 

https://www.census.gov/programssurveys/cbp/data/datasets.html). OSHA 

does not believe, at this time, that the 

benefits from the additional data 

collection would outweigh the 

disadvantages of the additional time and 

resources that employers would have to 

expend to comply. OSHA also values 

the stability provided to employers by 

keeping the universe of establishments 

required to submit 300A data the same, 

in light of the multiple recent changes 

to OSHA’s data submission 

requirements. 

In the previous regulation, this 

requirement was at § 1904.41(a)(1). In 

the final rule, it is at § 1904.41(a)(1)(ii). 

This final rule will not impose any new 

requirements on establishments to 

electronically submit information from 

their Form 300A to OSHA. All 

establishments that will be required to 

electronically submit Form 300A 

information to OSHA on an annual basis 

under the final rule were already 

required to do so under the previous 

regulation. OSHA made only one nonsubstantive change in the final 

regulatory text; whereas the previous 

regulatory text at § 1904.41(a)(1) 

contained an example stating that data 

for calendar year 2018 would be 

submitted by the month and day listed 

in § 1904.41(c) of calendar year 2019, 

that example has been removed from the 

final regulatory provision at 

§ 1904.41(a)(1)(ii). A similar, updated 

example is included in final 

§ 1904.41(b)(1). 

3. Restructuring of Previous Section 

1904.41(a)(1) and (2) Into Final Section 

1904.41(a)(1)(i) and (ii) 

In the preamble to the proposed rule, 

OSHA asked the following question 

about the structure of the regulatory text 

containing the requirements to submit 

data from OSHA injury and illness 

recordkeeping forms: ‘‘The proposed 

regulatory text is structured as follows: 

§ 1904.41(a)(1) Annual electronic 

submission of information from OSHA 

Form 300A Summary of Work-Related 

Injuries and Illnesses by establishments 

with 20 or more employees in 

designated industries; § 1904.41(a)(2) 

Annual electronic submission of 

information from OSHA Form 300 Log 

of Work-Related Injuries and Illnesses, 

OSHA Form 301 Injury and Illness 

Incident Report, and OSHA Form 300A 

Summary of Work-Related Injuries and 

Illnesses by establishments with 100 or 

more employees in designated 

industries. This is the structure used by 

the 2016 and 2019 rulemakings. An 

alternative structure would be as 

follows: § 1904.41(a)(1) Annual 

electronic submission of information 

from OSHA Form 300A Summary of 

Work-Related Injuries and Illnesses by 

establishments with 20 or more 

employees in designated industries; 

§ 1904.41(a)(2) Annual electronic 

submission of information from OSHA 

Form 300 Log of Work-Related Injuries 

and Illnesses and OSHA Form 301 

Injury and Illness Incident Report by 

establishments with 100 or more 

employees in designated industries. 

Which structure would result in better 

understanding of the requirements by 

employers?’’ (87 FR 18547). 

OSHA did not receive many 

comments on this proposed alternative 

structure for the regulatory text. 

However, NIOSH noted that it preferred 

the second option. ‘‘NIOSH finds the 

second alternative . . . to be somewhat 

preferable. That alternative focuses first 

on which establishments are required to 

submit OSHA Form 300A, and then 

focuses on which establishments are 

required to submit OSHA Forms 300 

and 301. This structure may help 

employers to more directly answer their 

questions about what forms to submit’’ 

(Docket ID 0035, Attachment 2). 

OSHA agrees that the proposed 

alternative structure, which separates 

the provisions by recordkeeping form, 

may help employers better understand 

the regulatory requirements for their 

establishments. Based on this reasoning, 

as well as on OSHA’s decision to retain 

the requirement for all establishments 

with 250 or more employees in 

industries covered by part 1904 to 


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47264 Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations 

submit information from their Form 

300A annual summary (discussed 

above), OSHA has decided to 

restructure the final regulation by 

recordkeeping form, rather than 

establishment size and industry. 

Therefore, in the final rule, 

§ 1904.41(a)(1) covers the requirement 

to submit the OSHA Form 300A, with 

§ 1904.41(a)(1)(i) for establishments 

with 20–249 employees in appendix A 

industries, and § 1904.41(a)(1)(ii) for 

establishments with 250 or more 

employees in industries covered by part 

1904. Final § 1904.41(a)(2) covers the 

requirement to submit the OSHA Forms 

300 and 301, as discussed below. 

4. Updating Appendix A 

Additionally, OSHA proposed to 

revise appendix A to subpart E to 

update the list of designated industries 

to conform with the 2017 version of the 

North American Industry Classification 

System (NAICS). Since OSHA revised 

§ 1904.41 in 2016, the Office of 

Management and Budget has issued two 

updates to the NAICS codes, in 2017 

and 2022. As explained in the preamble 

to the proposed rule, OSHA believed 

that the proposed update from 2012 

NAICS to 2017 NAICS would have the 

benefits of using more current NAICS 

codes, ensuring that both proposed 

appendix A and proposed appendix B 

used the same version of NAICS, 

aligning with the version currently used 

by BLS for the SOII data that OSHA 

used for this rulemaking, and increasing 

the likelihood that employers were 

familiar with the industry codes. 

As OSHA explained, this revision 

would not affect which industries were 

required to provide their data, but rather 

simply reflect the updated 2017 NAICS 

codes. For appendix A, OSHA limited 

the scope of this rulemaking to the 

proposed update from the 2012 version 

of NAICS to the 2017 version of NAICS. 

The change from the 2012 NAICS to the 

2017 NAICS would affect only a few 

industry groups at the 4-digit NAICS 

level. Specifically, the 2012 NAICS 

industry group 4521 (Department 

Stores) is split between the 2017 NAICS 

industry groups 4522 (Department 

Stores) and 4523 (General Merchandise 

Stores, including Warehouse Clubs and 

Supercenters). Also, the 2012 NAICS 

industry group 4529 (Other General 

Merchandise Stores) is included in 2017 

NAICS industry group 4523 (General 

Merchandise Stores, including 

Warehouse Clubs and Supercenters). As 

noted above, however, the 

establishments in these industries were 

already covered by the previous record 

submission requirements, so this would 

not represent a substantive change in 

those requirements. 

The Phylmar Regulatory Roundtable 

(PRR) supported the proposed update 

from the 2012 version of NAICS to the 

2017 version of NAICS for appendix A, 

commenting, ‘‘It is both practical and 

logical to align with the most recent 

codes from an accuracy standpoint’’ 

(Docket ID 0094). The Coalition for 

Workplace Safety (CWS), on the other 

hand, commented that using the 2017 

NAICS codes for Appendices A and B 

when the 2022 codes have already been 

released by OMB will lead to confusion 

and mistakes, unduly complicating the 

proposed requirements (Docket ID 

0058). 

While OSHA did not propose 

modifications to appendix A other than 

the update from 2012 NAICS to 2017 

NAICS, OSHA did discuss one 

alternative in the proposal that would 

affect the industries on appendix A: 

updating appendix A to reflect the 

2017–2019 injury rates from the SOII. 

Appendix A is based on the SOII’s 

injury rates from 2011–2013. This 

alternative would have resulted in the 

addition of one industry to appendix A 

(NAICS 4831 (Deep sea, coastal, and 

great lakes water transportation)) and 

the removal of 13 industries (4421 

Furniture Stores, 4452 Specialty Food 

Stores, 4853 Taxi and Limousine 

Service, 4855 Charter Bus Industry, 

5152 Cable and Other Subscription 

Programming, 5311 Lessors of Real 

Estate, 5321 Automotive Equipment 

Rental and Leasing, 5323 General Rental 

Centers, 6242 Community Food and 

Housing, and Emergency and Other 

Relief Services, 7132 Gambling 

Industries, 7212 RV (Recreational 

Vehicle) Parks and Recreational Camps, 

7223 Special Food Services, and 8113 

Commercial and Industrial Machinery 

and Equipment (except Automotive and 

Electronic) Repair and Maintenance). 

OSHA did not receive many 

comments in response to this 

alternative. The AFL–CIO stated that the 

use of ‘‘outdated’’ SOII data to 

determine the industries on appendix A 

would lead to missing information from 

industries that might have become (or 

might become in the future) more 

hazardous since the time period used as 

the basis for appendix A (2011–2013). 

However, this statement was made in 

the context of the AFL–CIO’s argument 

that OSHA should not restrict the large 

establishments required to submit 300A 

data to those in industries on appendix 

A, as OSHA proposed. Because OSHA is 

not adopting that approach, and instead 

is requiring all large establishments 

covered by part 1904 to continue 

submitting data from Form 300A, OSHA 

believes this concern will be minimized 

under the final regulatory requirements. 

Having reviewed the record, OSHA 

has decided to update appendix A to 

subpart E from the 2012 version of 

NAICS to the 2017 version of NAICS. As 

the PRR commented, it is practical and 

logical to align the industry list in 

appendix A with the more recent NAICS 

codes (see Docket ID 0094). Indeed, 

employers are likely more familiar with 

the 2017 codes than the 2012 codes. 

This change would also ensure that 

appendices A and B use the same 

version of NAICS. Finally, the 2017 

NAICS codes are used by BLS for the 

SOII data that OSHA is using for this 

rulemaking. While CWS stated that 

using the 2017 codes when the 2022 

codes have already been released will 

cause confusion (Docket ID 0058), 

OSHA notes that both appendices are 

based on SOII data from BLS, and that 

no SOII data using the 2022 NAICS 

codes are currently available. SOII data 

for 2022 will not be available until 

November 2023. Thus, it is not possible 

for OSHA to base appendix A or B on 

SOII data that use the 2022 NAICS 

codes, even though the 2022 codes are 

the most recent ones available. 

OSHA has also decided not to update 

appendix A using more recent SOII 

data. As discussed in the preamble to 

the proposed rule, it took several years 

for the regulated community to 

understand which industries were and 

were not required to submit 

information, and such 

misunderstandings could result in both 

underreporting and overreporting. 

OSHA has determined that changing the 

covered industries, by changing the data 

that forms the basis for the NAICS on 

appendix A, would result in additional 

confusion for the regulated community 

that is not warranted at this time. 

Moreover, three of the industries that 

would be removed from appendix A if 

OSHA based that appendix on updated 

data are also listed in appendix B, 

indicating that they remain hazardous 

under other measures. Finally, as noted 

above, OSHA agrees with interested 

parties who commented that requiring 

information to be submitted from all 

large establishments will help blunt the 

effect of using the older SOII data in 

determining which NAICS will be 

included on appendix A. 

The final appendix A to subpart E of 

part 1904 (Designated industries for 

§ 1904.41(a)(1)(i) Annual electronic 

submission of information from OSHA 

Form 300A Summary of Work-Related 

Injuries and Illnesses by establishments 


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3As noted in the NPRM, OSHA proposed to 

remove NAICS 7213, Rooming and Boarding 

Houses, from appendix A (see 87 FR 18536, n.7). 

Employers in NAICS 7213 are not required to 

routinely keep OSHA injury and illness records, per 

the part 1904 non-mandatory appendix A to subpart 

B. This NAICS industry group was mistakenly 

included in appendix A to subpart E when OSHA 

published its 2016 final rule (see 81 FR 29642). 

OSHA received no comments objecting to the 

removal of NAICS 7213 from appendix A to subpart 

E and thus has excluded this industry group from 

the final version of this appendix. 

with 20–249 employees in designated 

industries) is as follows: 3

NAICS Industry 

11 ........................... Agriculture, Forestry, Fishing and Hunting. 

22 ........................... Utilities. 

23 ........................... Construction. 

31–33 ..................... Manufacturing. 

42 ........................... Wholesale Trade. 

4413 ....................... Automotive Parts, Accessories, and Tire Stores. 

4421 ....................... Furniture Stores. 

4422 ....................... Home Furnishings Stores. 

4441 ....................... Building Material and Supplies Dealers. 

4442 ....................... Lawn and Garden Equipment and Supplies Stores. 

4451 ....................... Grocery Stores. 

4452 ....................... Specialty Food Stores. 

4522 ....................... Department Stores. 

4523 ....................... General Merchandise Stores, including Warehouse Clubs and Supercenters. 

4533 ....................... Used Merchandise Stores. 

4542 ....................... Vending Machine Operators. 

4543 ....................... Direct Selling Establishments. 

4811 ....................... Scheduled Air Transportation. 

4841 ....................... General Freight Trucking. 

4842 ....................... Specialized Freight Trucking. 

4851 ....................... Urban Transit Systems. 

4852 ....................... Interurban and Rural Bus Transportation. 

4853 ....................... Taxi and Limousine Service. 

4854 ....................... School and Employee Bus Transportation. 

4855 ....................... Charter Bus Industry. 

4859 ....................... Other Transit and Ground Passenger Transportation. 

4871 ....................... Scenic and Sightseeing Transportation, Land. 

4881 ....................... Support Activities for Air Transportation. 

4882 ....................... Support Activities for Rail Transportation. 

4883 ....................... Support Activities for Water Transportation. 

4884 ....................... Support Activities for Road Transportation. 

4889 ....................... Other Support Activities for Transportation. 

4911 ....................... Postal Service. 

4921 ....................... Couriers and Express Delivery Services. 

4922 ....................... Local Messengers and Local Delivery. 

4931 ....................... Warehousing and Storage. 

5152 ....................... Cable and Other Subscription Programming. 

5311 ....................... Lessors of Real Estate. 

5321 ....................... Automotive Equipment Rental and Leasing. 

5322 ....................... Consumer Goods Rental. 

5323 ....................... General Rental Centers. 

5617 ....................... Services to Buildings and Dwellings. 

5621 ....................... Waste Collection. 

5622 ....................... Waste Treatment and Disposal. 

5629 ....................... Remediation and Other Waste Management Services. 

6219 ....................... Other Ambulatory Health Care Services. 

6221 ....................... General Medical and Surgical Hospitals. 

6222 ....................... Psychiatric and Substance Abuse Hospitals. 

6223 ....................... Specialty (except Psychiatric and Substance Abuse) Hospitals. 

6231 ....................... Nursing Care Facilities (Skilled Nursing Facilities). 

6232 ....................... Residential Intellectual and Developmental Disability, Mental Health, and Substance Abuse Facilities. 

6233 ....................... Continuing Care Retirement Communities and Assisted Living Facilities for the Elderly. 

6239 ....................... Other Residential Care Facilities. 

6242 ....................... Community Food and Housing, and Emergency and Other Relief Services. 

6243 ....................... Vocational Rehabilitation Services. 

7111 ....................... Performing Arts Companies. 

7112 ....................... Spectator Sports. 

7121 ....................... Museums, Historical Sites, and Similar Institutions. 

7131 ....................... Amusement Parks and Arcades. 

7132 ....................... Gambling Industries. 

7211 ....................... Traveler Accommodation. 

7212 ....................... RV (Recreational Vehicle) Parks and Recreational Camps. 

7223 ....................... Special Food Services. 

8113 ....................... Commercial and Industrial Machinery and Equipment (except Automotive and Electronic) Repair and Maintenance. 

8123 ....................... Drycleaning and Laundry Services. 


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B. Section 1904.41(a)(2)—Annual 

Electronic Submission of OSHA Form 

300 Log of Work-Related Injuries and 

Illnesses and OSHA Form 301 Injury 

and Illness Incident Report by 

Establishments With 100 or More 

Employees in Designated Industries 

Section 1904.41(a)(2) of the final rule 

requires establishments that (1) had 100 

or more employees at any point during 

the previous calendar year and (2) are 

classified in one of the industries listed 

in appendix B to subpart E of part 1904 

to electronically submit certain 

information from their Forms 300 and 

301 to OSHA or OSHA’s designee. Data 

from the 300 and 301 forms must be 

submitted annually, for the previous 

calendar year, by March 2 (§ 1904.41(c)). 

The only change from the proposed rule 

is the deletion of the proposed rule’s 

reference to Form 300A. That reference 

has been deleted from this provision 

because the requirements for 

establishments to submit Form 300A are 

contained in § 1904.41(a)(1)(i) and (ii) in 

this final rule. Comments related to the 

submission of Form 300A are discussed 

in that section. Appendix B has also 

changed from the proposal. Specifically, 

OSHA has added six industries to 

appendix B. All six of the industries 

added to appendix B have been part of 

appendix A since appendix A’s creation 

in 2016. 

As discussed in Section I.C, 

Regulatory History, in 2016, OSHA 

issued a final rule that required 

establishments with 250 or more 

employees that are routinely required to 

keep injury and illness records under 

part 1904 to electronically submit 

information from their 300 and 301 

forms to OSHA once a year. However, 

OSHA never collected that Form 300 

and 301 data, and in 2019, it issued a 

final rule that removed the requirement 

for these establishments to 

electronically submit that information to 

OSHA. 

As noted above, in this rulemaking, 

OSHA re-proposed a requirement for 

certain establishments to submit 

information from their 300 and 301 

forms to OSHA annually. The proposed 

provision in this rulemaking differed 

from the 2016 final rule in that the 

proposed provision would apply to 

establishments that (1) had 100 or more 

employees (rather than 250 or more 

employees, as in the 2016 final rule) and 

(2) are classified in an industry listed in 

appendix B to subpart E of part 1904 

(rather than all industries which are 

required by part 1904 to keep records, 

as in the 2016 rule). OSHA received a 

wide range of comments on the 

proposed provision. The issues related 

to these comments are addressed below. 

1. Covered Establishments and 

Industries 

Like the proposed rule, § 1904.41(a)(2) 

of the final rule requires establishments 

that had 100 or more employees at any 

time during the previous calendar year, 

and that are in an industry listed in final 

appendix B to subpart E, to 

electronically submit certain 

information from their Form 300 and 

301 to OSHA or OSHA’s designee once 

a year. As discussed in more detail 

below, under final paragraph 1904.41(c), 

employers subject to the reporting 

requirement in § 1904.41(a)(2) must 

submit all of the required information to 

OSHA or OSHA’s designee by March 2 

of the year after the calendar year 

covered by the forms. 

As discussed above, in 2016, OSHA 

issued a final rule that required all 

establishments with 250 or more 

employees in all industries routinely 

required to keep part 1904 injury and 

illness records to electronically submit 

information from their 300 and 301 

forms to OSHA once a year. In that 

rulemaking, OSHA estimated that 

establishments with 250 or more 

employees covered by the submission 

requirement would report 713,397 

injury and illness cases each year. 

However, the 300 and 301 data 

submission requirements from the 2016 

final rule were never fully implemented, 

and OSHA never collected 300 and 301 

data electronically from covered 

employers. In 2019, OSHA issued a final 

rule that removed the requirement for 

the annual electronic submission of 300 

and 301 data to OSHA. 

In the NPRM in this rulemaking, 

OSHA explained that in developing the 

requirement for establishments with 100 

or more employees to electronically 

submit data from their OSHA Form 300 

and 301, OSHA sought to balance the 

utility of the information collection for 

enforcement, outreach, and research, on 

the one hand, and the burden on 

employers to provide the information to 

OSHA, on the other hand (see 87 FR 

18543). To achieve this balance in the 

proposed rule, OSHA analyzed five 

years of injury and illness Form 300A 

summary data collected through 

OSHA’s ITA. OSHA examined 

combinations of establishment size and 

industry hazardousness that, like the 

2016 final rule, would provide the 

agency with information on roughly 

750,000 cases of injuries and illnesses 

per year—roughly the same burden as 

the case-specific requirement in the 

2016 final rule. Based on this analysis, 

OSHA proposed a reporting requirement 

for establishments with 100 or more 

employees in 4-digit NAICS (2017) 

industries that: 

1. had a 3-year-average Total Case 

Rate (TCR) in the BLS SOII for 2017, 

2018, and 2019, of at least 3.5 cases per 

100 full-time-equivalent employees, and 

2. were included in proposed 

appendix A to subpart E. (All of the 

industries in proposed appendix B were 

also in appendix A). 

The proposed rule listed the 

designated industries in proposed 

appendix B to subpart E. 

OSHA proposed one exception to the 

above criteria, for the United States 

Postal Service (USPS), which is the only 

employer in NAICS 4911 Postal 

Services. Under the Postal Employees 

Safety Enhancement Act (Pub. L. 105– 

241), OSHA treats USPS as a private 

sector employer for purposes of 

occupational safety and health, and 

USPS establishments with 20 or more 

employees have been required to 

electronically submit 300A information 

to OSHA. However, BLS does not 

include USPS in the SOII. Using the 

2017, 2018, and 2019 data submitted by 

USPS to the ITA, OSHA was able to 

calculate a TCR of 7.5 for NAICS 4911. 

Therefore, OSHA included NAICS 4911 

in proposed appendix B to subpart E. 

Also, in the preamble to the proposed 

rule, OSHA explained that the agency 

believed TCR, which represents the 

number of work-related injuries and 

illnesses per 100 full-time-employees 

during a one-year period, was the 

appropriate rate to use for determining 

the list of industries in proposed 

appendix B to subpart E because 

covered establishments would be 

required to electronically submit 

information to OSHA on all of their 

recordable cases, not just cases that 

resulted in days away from work, job 

restriction, or transfer. OSHA explained 

in the preamble that, in 2020, OSHA 

received submissions to the ITA of Form 

300A data for 2019 from 46,911 

establishments that had 100 or more 

employees and were in one of the 

industries listed in proposed appendix 

B to subpart E, accounting for 680,930 

total recordable cases and a TCR of 3.6. 

The designated industries in proposed 

appendix B to subpart E were as 

follows: 


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PROPOSED APPENDIX B 

2017 NAICS code 2017 NAICS title 

1111 ........................... Oilseed and grain farming. 

1112 ........................... Vegetable and melon farming. 

1113 ........................... Fruit and tree nut farming. 

1114 ........................... Greenhouse, nursery, and floriculture production. 

1119 ........................... Other crop farming. 

1121 ........................... Cattle ranching and farming. 

1122 ........................... Hog and pig farming. 

1123 ........................... Poultry and egg production. 

1129 ........................... Other animal production. 

1141 ........................... Fishing. 

1151 ........................... Support activities for crop production. 

1152 ........................... Support activities for animal production. 

1153 ........................... Support activities for forestry. 

2213 ........................... Water, sewage and other systems. 

2381 ........................... Foundation, structure, and building exterior contractors. 

3111 ........................... Animal food manufacturing. 

3113 ........................... Sugar and confectionery product manufacturing. 

3114 ........................... Fruit and vegetable preserving and specialty food manufacturing. 

3115 ........................... Dairy product manufacturing. 

3116 ........................... Animal slaughtering and processing. 

3117 ........................... Seafood product preparation and packaging. 

3118 ........................... Bakeries and tortilla manufacturing. 

3119 ........................... Other food manufacturing. 

3121 ........................... Beverage manufacturing. 

3161 ........................... Leather and hide tanning and finishing. 

3162 ........................... Footwear manufacturing. 

3211 ........................... Sawmills and wood preservation. 

3212 ........................... Veneer, plywood, and engineered wood product manufacturing. 

3219 ........................... Other wood product manufacturing. 

3261 ........................... Plastics product manufacturing. 

3262 ........................... Rubber product manufacturing. 

3271 ........................... Clay product and refractory manufacturing. 

3272 ........................... Glass and glass product manufacturing. 

3273 ........................... Cement and concrete product manufacturing. 

3279 ........................... Other nonmetallic mineral product manufacturing. 

3312 ........................... Steel product manufacturing from purchased steel. 

3314 ........................... Nonferrous metal production and processing. 

3315 ........................... Foundries. 

3321 ........................... Forging and stamping. 

3323 ........................... Architectural and structural metals manufacturing. 

3324 ........................... Boiler, tank, and shipping container manufacturing. 

3325 ........................... Hardware manufacturing. 

3326 ........................... Spring and wire product manufacturing. 

3327 ........................... Machine shops; turned product; and screw, nut, and bolt manufacturing. 

3328 ........................... Coating, engraving, heat treating, and allied activities. 

3331 ........................... Agriculture, construction, and mining machinery manufacturing. 

3335 ........................... Metalworking machinery manufacturing. 

3361 ........................... Motor vehicle manufacturing. 

3362 ........................... Motor vehicle body and trailer manufacturing. 

3363 ........................... Motor vehicle parts manufacturing. 

3366 ........................... Ship and boat building. 

3371 ........................... Household and institutional furniture and kitchen cabinet manufacturing. 

3372 ........................... Office furniture manufacturing. 

4231 ........................... Motor vehicle and motor vehicle parts and supplies merchant wholesalers. 

4233 ........................... Lumber and other construction materials merchant wholesalers. 

4235 ........................... Metal and mineral merchant wholesalers. 

4244 ........................... Grocery and related product merchant wholesalers. 

4248 ........................... Beer, wine, and distilled alcoholic beverage merchant wholesalers. 

4413 ........................... Automotive parts, accessories, and tire stores. 

4422 ........................... Home furnishings stores. 

4441 ........................... Building material and supplies dealers. 

4442 ........................... Lawn and garden equipment and supplies stores. 

4451 ........................... Grocery stores. 

4522 ........................... Department stores. 

4523 ........................... General merchandise stores, including warehouse clubs and supercenters. 

4533 ........................... Used merchandise stores. 

4543 ........................... Direct selling establishments. 

4811 ........................... Scheduled air transportation. 

4841 ........................... General freight trucking. 

4842 ........................... Specialized freight trucking. 

4851 ........................... Urban transit systems. 

4852 ........................... Interurban and rural bus transportation. 


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PROPOSED APPENDIX B—Continued 

2017 NAICS code 2017 NAICS title 

4854 ........................... School and employee bus transportation. 

4859 ........................... Other transit and ground passenger transportation. 

4871 ........................... Scenic and sightseeing transportation, land. 

4881 ........................... Support activities for air transportation. 

4883 ........................... Support activities for water transportation. 

4911 ........................... Postal Service. 

4921 ........................... Couriers and express delivery services. 

4931 ........................... Warehousing and storage. 

5322 ........................... Consumer goods rental. 

5621 ........................... Waste collection. 

5622 ........................... Waste treatment and disposal. 

6219 ........................... Other ambulatory health care services. 

6221 ........................... General medical and surgical hospitals. 

6222 ........................... Psychiatric and substance abuse hospitals. 

6223 ........................... Specialty hospitals. 

6231 ........................... Nursing care facilities. 

6232 ........................... Residential intellectual and developmental disability, mental health, and substance abuse facilities. 

6233 ........................... Continuing care retirement communities and assisted living facilities for the elderly. 

6239 ........................... Other residential care facilities. 

6243 ........................... Vocational rehabilitation services. 

7111 ........................... Performing arts companies. 

7112 ........................... Spectator sports. 

7131 ........................... Amusement parks and arcades. 

7211 ........................... Traveler accommodation. 

7212 ........................... RV parks and recreational camps. 

7223 ........................... Special food services. 

6239 ........................... Other residential care facilities. 

6243 ........................... Vocational rehabilitation services 

7111 ........................... Performing arts companies. 

7112 ........................... Spectator sports. 

7131 ........................... Amusement parks and arcades. 

7211 ........................... Traveler accommodation. 

7212 ........................... RV parks and recreational camps. 

7223 ........................... Special food services. 

a. The Size Threshold for Submitting 

Information From OSHA Forms 300 and 

301 

Like the proposed rule, § 1904.41(a)(2) 

of the final rule requires establishments 

in industries listed in appendix B to 

subpart E with 100 or more employees 

to electronically submit certain 

information from their 300 and 301 

forms to OSHA once a year. The size 

criterion of 100 or more employees is 

based on the total number of employees 

at an establishment during the previous 

calendar year. All individuals who are 

‘‘employees’’ under the OSH Act are 

counted in the total. The count includes 

all full-time, part-time, temporary, and 

seasonal employees. For businesses that 

are sole proprietorships or partnerships, 

the owners and partners would not be 

considered employees and would not be 

counted. Other examples of individuals 

who are not considered to be employees 

under the OSH Act are unpaid 

volunteers and family members of farm 

employers (see 66 FR 5916, 6038). 

In the preamble to the proposed rule, 

OSHA specifically requested comment 

on whether the threshold of 100 or more 

employees was the appropriate size 

criterion for the requirement to 

electronically submit data from the 

OSHA Form 300, 301, and 300A. OSHA 

also asked whether a different size 

criterion would be more appropriate 

(see 87 FR 18546). 

OSHA received a number of 

comments on the 100-or-more-employee 

criterion as to the submission of OSHA 

Forms 300 and 301. Some commenters 

supported the 100-or-more threshold 

(e.g., Docket IDs 0040, 0048, 0049, 0051, 

0054, 0064, 0067, 0073, 0080, 0083, 

0089, 0092, 0093). For example, the 

Council of State and Territorial 

Epidemiologists stated that setting the 

threshold at 100 employees will allow 

OSHA to receive more detailed 

information from the 300/301 forms on 

the nature and circumstances of injuries 

and illnesses (Docket ID 0040). Also, the 

International Union of Painters and 

Allied Trades/AFL–CIO commented 

that while they would have preferred to 

see the threshold for large 

establishments dropped even further, 

they recognized that the reduction from 

250 to 100 from the 2016 final rule is 

significant and will assist their industry 

and others in capturing additional data 

(Docket ID 0073). 

The National Nurses Union 

commented, ‘‘An OSHA rule requiring 

reporting from establishments with 100 

or more employees is a superior 

threshold to the 250-employee 

threshold. As an example, if the 

establishment threshold was 250 

employees, 299 hospitals in California 

would have had to comply with 

electronic reporting requirements in 

2021, covering over 378,000 hospital 

employees. Applying a reporting rule to 

establishments with 100 or more 

employees would add an additional 73 

hospitals and protect nearly 12,017 

additional hospital employees in 

California alone. This is a significant 

increase in the data available on 

workplace hazards’’ (Docket ID 0064). 

Additionally, the Communication 

Workers of America commented, ‘‘We 

support OSHA’s proposal to be 

inclusive of more workplaces by 

changing the definition of a ‘‘large’’ 

establishment to those with 100 or more 

employees, rather than 250 employees. 

We support large establishments 

submitting certain information from all 

three recordkeeping forms. . . .’’ 

(Docket ID 0092). 


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Other commenters opposed or 

questioned the 100-or-more employee 

threshold (e.g., Docket IDs 0030, 0050, 

0071, 0076, 0087, 0094). Of those 

commenters who opposed the proposed 

threshold, most argued that OSHA 

should set the threshold higher than 100 

employees. For example, the Employers 

E-Recordkeeping Coalition (Coalition) 

commented that, to the extent 

employers in industries designated in 

appendix B are required to submit 

information from their OSHA Form 300, 

301, and 300A, such a requirement 

should apply to employers with 250 or 

more employees, not employers with 

100 or more employees. The Coalition 

asserted that, ‘‘OSHA does not appear to 

provide any rationale for lowering the 

threshold of what it considers to be 

‘‘larger employers’’ from those with 250 

or more’’ (Docket ID 0087). Similarly, 

the National Propane and Gas 

Association (NPGA) commented that 

OSHA does not explain its rationale for 

lowering the size threshold to 100 

employees (Docket ID 0050). 

OSHA agrees with commenters who 

supported the proposed 100-or-moreemployee threshold and disagrees with 

commenters who stated that the 

employee threshold should be higher 

than 100 or more employees (e.g., 250 

or more employees). Increasing the 

threshold would reduce the number of 

establishments required to 

electronically submit information from 

their 300 and 301 forms, as well as 

decrease the number of injury and 

illness case reports collected by the 

agency. For example, increasing the size 

threshold from 100 or more employees 

to 250 or more employees would reduce 

the number of establishments required 

to electronically submit 300/301 data by 

67 percent (i.e., from 52,092 

establishments to 17,106 

establishments). Likewise, raising the 

threshold from 100 or more employees 

to 250 or more employees would reduce 

the number of reported injury and 

illness cases by 32 percent (i.e., from 

766,257 cases to 523,562 cases). This 

reduction in the amount of collected 

information would significantly limit 

OSHA’s ability to identify and target 

hazardous occupations and workplaces. 

Also, a reduction in the amount of 

collected information would adversely 

impact the benefits (discussed 

elsewhere) of making this information 

available to employees, the public, and 

other interested parties. OSHA is 

concerned that an increase in the 

employee threshold, along with the 

corresponding reduction in publicly 

available injury and illness information, 

will hinder efforts to prevent 

occupational injuries and illnesses in 

the future. 

Moreover, the question is more 

complex than merely whether to 

‘‘increase’’ or ‘‘decrease’’ the 

establishment-size threshold, because 

the scope of industries required to 

submit the Form 300 and 301 data has 

also changed between the 2016 rule and 

this one. Under the 2016 final rule, all 

establishments that (1) had 250 or more 

employees at any time during the 

previous calendar year, and (2) were 

required to keep records pursuant to 

part 1904 were required to submit 

Forms 300 and 301. In contrast, in this 

rulemaking, OSHA proposed requiring 

establishments with 100-or-more 

employees to submit only if they are 

classified in one of the high-hazard 

industries listed in appendix B. This 

approach—lowering the establishmentsize threshold to capture enough 

workplaces and cases to allow 

appropriate targeting and analysis while 

focusing in on particularly hazardous 

industries—is fully distinguishable from 

the agency’s approach in 2016. OSHA’s 

approach in this rulemaking focuses on 

higher hazard industries and provides 

the agency with information on more 

establishments, as compared to the 

number of establishments which would 

have been required to submit their 

Forms 300 and 301 information under 

the 2016 final rule. The increase in the 

number of establishments required to 

submit information, relative to the 2016 

final rule, will allow OSHA to identify 

more places where intervention will be 

beneficial, including targeting its 

compliance assistance efforts. 

Other interested parties recommended 

that OSHA conduct additional analysis 

to determine which establishments 

should be required to electronically 

submit Form 300/301 data to OSHA. For 

example, the American Industrial 

Hygiene Association (AIHA) 

commented, ‘‘There should be an 

analysis of the impact of any company 

size selected to report electronically. 

There are at least two considerations 

here: (1) The number of responses that 

will be received if the threshold is 

lowered to 100 (there is also a question 

of whether OSHA can manage an 

associated increase in reports); and (2) 

Most companies in the U.S. are small 

businesses and new regulations such as 

this can have an indirect impact on 

them. Will companies of this size have 

the capability and IT expertise to 

participate in electronic reporting? 

OSHA should conduct a thorough 

analysis before imposing new reporting 

requirements on small businesses.’’ 

(Docket ID 0030). The Sheet Metal & Air 

Conditioning Contractors’ National 

Association submitted similar 

comments (Docket ID 0046). 

OSHA agrees with AIHA that these 

factors are important in determining the 

appropriate threshold for data 

submission and considered them in 

setting the threshold. As to the first 

consideration noted by AIHA, the 

number of responses, as noted above, 

OSHA estimates that 52,092 

establishments will be required to 

electronically submit Form 300/301 data 

each year pursuant to § 1904.41(a)(2) of 

the final rule. OSHA further estimates 

that those establishments would 

annually submit 766,257 injury and 

illness cases. In choosing the proposed 

threshold, OSHA sought to balance the 

utility of the information collection for 

enforcement, outreach, and research, on 

the one hand, and the burden on 

employers to provide the information to 

OSHA, on the other hand. And OSHA 

expects that the 100-employee threshold 

will be an easy threshold for employers 

to understand and keep track of. 

Further, as discussed in Section III.B. of 

this Summary and Explanation, OSHA 

has determined that it is capable of 

managing, analyzing, and utilizing the 

data it will receive pursuant to this 

requirement. 

As to AIHA’s second factor, whether 

establishments with 100 or more but 

fewer than 250 employees have the 

capability and IT expertise to participate 

in electronic reporting, OSHA has also 

determined that such establishments are 

capable of submitting these reports to 

OSHA. Significantly, because the 

industries that appear in appendix B are 

a subset of those in appendix A and the 

previous version of § 1904.41(a)(2) 

required all establishments with 20–249 

employees which are classified in an 

industry listed in appendix A to submit 

information from their Form 300A 

annually to OSHA, all of the 

establishments which would be 

required to submit information from 

their Forms 300 and 301 to OSHA under 

the proposal were already required to 

submit information from their Forms 

300A. In other words, the 

establishments covered under the 

proposal (and this final rule) already 

have experience submitting (and thus 

the ability to submit) such data to OSHA 

electronically. For more details on this 

issue, see Section IV, Final Economic 

Analysis. 

OSHA also received comments 

questioning its preliminary decision to 

use establishment size as a threshold 

criterion. For example, the National 

Safety Council (NSC) supported a riskbased approach, commenting that larger 

operations are not inherently less safe 

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based approach to protect workers. It 

argued, ‘‘OSHA should evaluate factors 

like the degree of the hazard, the 

magnitude of exposure (number of 

workers exposed and duration of 

exposure), and the relative risk at the 

site (likelihood of an incident based on 

current hazards and the level of controls 

being applied to those hazards and past 

experience). These data points should 

govern reporting requirements and 

guide OSHA inspections, consulting 

and compliance resources.’’ (Docket ID 

0041). 

OSHA agrees that using a risk-based 

approach to collecting data can be 

valuable. Indeed, as discussed in 

Section III.B.14.c in this Summary and 

Explanation, OSHA anticipates this to 

be one of the benefits of the data 

collection for the agency. That is, the 

data collection will provide OSHA with 

establishment-specific, case-specific 

information the agency can use to 

evaluate risk factors and guide OSHA 

activities based on risk factors. 

However, in order to obtain this 

information, OSHA must first set the 

criteria for collecting the information, 

through this final rule. Risk is one of the 

reasons the agency proposed using a 

Forms 300 and 301 data collection 

criteria based on industry hazard level 

as well as establishment size, i.e., it is 

reasonable to assume that 

establishments in industries with higher 

injury/illness rates are higher-hazard 

industries with higher risks. As 

discussed elsewhere in this preamble, 

the list of higher-hazard industries in 

final appendix B to subpart E is based 

on several criteria, including the 

analysis of average injury and illness 

rates over several years. OSHA believes 

this approach represents a practical way 

of evaluating risks and hazards in 

specific industries. OSHA also believes 

it would be difficult to calculate an 

appropriate employee threshold based 

on the degree of hazard or the 

magnitude of exposure at individual 

establishments, especially when such 

case-specific data are not now available 

to the agency. Moreover, OSHA expects 

that including a numerical threshold of 

100 or more employees is easier for 

employers to understand and provides 

certainty for the regulated community. 

The inclusion of a numerical threshold 

with or without an additional industry 

criterion is a familiar part of OSHA’s 

recordkeeping regulations (see, e.g., 29 

CFR 1904.1(a)(1); previous 29 CFR 

1904.41(a)(1)–(2)). Further, OSHA 

believes that the 100-employee 

threshold balances the burden on 

employers with the benefits to worker 

safety and health. 

Other commenters questioned 

OSHA’s proposed 100-employee 

threshold because the agency did not 

choose that threshold in the 2016 

rulemaking. For example, the Coalition 

pointed out that ‘‘OSHA considered a 

lower threshold of 100 or more 

employees, and expressly denied that 

approach in the 2016 rulemaking’’ 

(Docket ID 0087). In response to this 

comment, OSHA notes that the 

alternative (Alternative E) in the 2013 

NPRM (the NPRM which lead to the 

2016 final rule) to which the Coalition 

refers differs from the requirement 

OSHA proposed in this rulemaking. 

Specifically, with regard to Forms 300 

and 301, Alternative E would have 

required all establishments which were 

required to keep records and had 100 or 

more employees at any time during the 

previous calendar year to submit Form 

300 and 301 data to OSHA annually (see 

78 FR 67264, 67281). However, in this 

rulemaking, OSHA proposed for only a 

subset of establishments with 100 or 

more employees (i.e., those whose 

industries appear on appendix B) to 

submit the data. OSHA estimated that it 

would receive 1,170,000 injury and 

illness cases with incident report 

(OSHA Form 301) and Log (OSHA Form 

300) data under Alternative E (81 FR 

29636). OSHA further estimated that 

120,000 establishments would have 

been required to submit data under the 

alternative (81 FR 29636). Ultimately, in 

2016, OSHA agreed with commenters 

who stated that reducing the size 

criterion to 100 would increase the 

burden on employers with diminishing 

benefit. 

OSHA’s 2016 decision to reject 

Alternative E was based on the 

employer burden and benefits under 

that alternative. As discussed above, 

under this rule, OSHA estimates that 

only 52,092 establishments will be 

required to electronically submit Form 

300/301 data each year and those 

establishments would annually submit 

only 766,257 injury and illness cases. 

Thus, an estimated 67,908 fewer 

establishments will be required to 

submit data under this rule, as 

compared to the estimate of those that 

would have been required to submit 

under Alternative E in the 2016 final 

rule, and approximately 403,000 fewer 

cases are estimated to be submitted than 

were estimated to have been submitted 

under that alternative. The number of 

cases estimated to be submitted under 

this final rule is similar to that which 

was estimated to have been required to 

be submitted under the 2016 final rule 

(720,000 in 2016). Consequently, OSHA 

finds that its rejection of Alternative E 

in the 2016 rulemaking has no bearing 

on its decision to use a 100-employee 

threshold in this rulemaking. In fact, the 

agency’s finding that it could handle 

data from 720,000 cases in 2016 actually 

supports its finding that it can handle a 

similar number of records in this 

rulemaking. 

The Phylmar Regulatory Roundtable 

(PRR) objected to OSHA’s proposed 100- 

or-more-employee threshold for a 

different reason than the above 

commenters. Specifically, it maintained 

that the requirement for establishments 

with 100 or more employees in certain 

industries could result in inaccurate or 

misleading information. In support of 

this point, it stated that ‘‘an 

establishment with few employees may 

have a high case rate purely based on 

numbers which is not reflective of 

workplace hazards or employer 

commitment. High injury and illness 

rates are not an automatic indication 

that the company or establishment is 

operating an unsafe environment’’ 

(Docket ID 0094). 

OSHA disagrees with PRR’s assertion 

about the 100-or-more employee 

threshold resulting in misleading 

information. While a small number of 

injuries or illnesses could have a 

disproportionate effect on incidence 

rates in an establishment with a small 

number of employees, this is unlikely in 

larger establishments with 100 or more 

employees. Incidence rate of injuries 

and illnesses are computed from the 

following formula: Incidence rate per 

100 full-time employees = (Number of 

injuries and illnesses × 200,000)/ 

Employee hours worked. The 200,000 

figure in the formula represents the 

number of hours 100 employees 

working 40 hours per week, 50 weeks 

per year would work, and provides the 

standard base for calculating incidence 

rate for an entire year. Mathematically, 

the effect of a small change in the 

numerator (number of injuries and 

illnesses × 200,000) on the incidence 

rate becomes smaller as the 

denominator (employee hours worked) 

becomes larger, and the more employees 

there are, the larger the denominator 

will tend to be. Two recordable injuries 

or illnesses instead of one, at an 

establishment with 20 full-time 

employees, would increase the TCR 

from 5.0 to 10.0; in contrast, at an 

establishment with 100 full-time 

employees, the TCR would only 

increase from 1.0 to 2.0. As discussed 

above, the TCR threshold for industry 

inclusion in Appendix B is 3.5; an 

establishment with 100 full-time 

employees would have to have at least 

4 recordable injuries in a year to exceed 

this threshold. In addition, as discussed 


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elsewhere, OSHA plans to publish 

narrative information from the Form 300 

and 301 (after identifying and removing 

information that could reasonably be 

expected to identify individuals 

directly), which will enable the users of 

the data to determine the relevance of 

the data. In fact, OSHA believes that the 

inclusion of more information about the 

specific cases (rather than the summary 

information from Forms 300A) will 

mitigate against potential 

misunderstandings, because the public 

can use that information to determine 

the circumstances that led to the injury 

or illness (e.g., through showing that a 

particular injury or illness occurred for 

a reason other than a hazard in the work 

environment). This is further discussed 

below in Section III.B.4 of this Summary 

and Explanation, which also explains 

additional steps OSHA plans to take to 

provide information to the public to aid 

their understanding of the data. 

OSHA also received a comment from 

NPGA opposing the proposed 100-ormore employee threshold because it is 

not included in any other portion of 

OSHA’s recordkeeping regulations 

(Docket ID 0050). NPGA’s statement is 

accurate: OSHA’s proposal in this 

rulemaking is the first time OSHA has 

specifically tied a part 1904 

recordkeeping requirement to a 100-ormore-employee threshold. However, 

OSHA does not think the presence of a 

new threshold is problematic. As stated 

above, a 100-employee threshold is easy 

for establishments to understand and 

balances OSHA’s need for the data with 

the burden on establishments. 

Moreover, OSHA expects that 

establishments are familiar with this 

threshold from their experience with 

other Federal standards. For example, 

private sector employers with 100 or 

more employees are required to file an 

EEO–1 Component 1 Report with the 

Equal Employment Opportunity 

Commission (EEOC) and the Office of 

Federal Contract Compliance Programs 

(OFCCP), U.S. Department of Labor, 

every year (see 42 U.S.C. 2000e–8(c); 29 

CFR 1602.7–.14; 41 CFR 60–1.7(a)). 

Other commenters maintained that 

the 100-employee threshold was not 

inclusive enough. For example, the 

AFL–CIO commented that if OSHA did 

not adopt its recommendation to require 

all establishments with 100 or more 

employees to submit data from all their 

recordkeeping forms (rather than 

establishments with 100 or more 

employees which are also classified in 

an industry listed in appendix B) 

(comment and OSHA’s response 

discussed below), then OSHA should 

adopt the provisions contained in the 

2016 final rule (i.e., require all 

establishments with 250 or more 

employees to submit data from Forms 

300A, 300, and 301). It argued that ‘‘[a]t 

a minimum’’ OSHA should require 

establishments with 250 or more 

employees to submit data from the 

Forms 300A and 300 (Docket ID 0061). 

The United Food and Commercial 

Workers International Union submitted 

a similar comment (Docket ID 0066). 

OSHA disagrees with commenters 

who suggested that OSHA should adopt 

a threshold below 100 or more 

employees or eliminate the threshold 

completely. OSHA acknowledges 

commenters who stated that a lower 

threshold would result in an increase in 

the amount of injury and illness data 

collected by the agency. However, the 

agency notes that any reduction in the 

employee size threshold would increase 

the number of establishments required 

to electronically submit Form 300 and 

301 data, and this would result in an 

increased burden to smaller employers. 

Again, the agency chose the 100- 

employee threshold by balancing the 

utility of the information collection for 

enforcement, outreach, and research, on 

the one hand, and the burden on 

employers to provide the information to 

OSHA, on the other hand. The 100- 

employee threshold will provide 

enough case-specific information, about 

enough establishments, for wide-spread 

targeted outreach and enforcement 

while minimizing the burden on 

employers, especially smaller 

employers, as required by Section 8(d) 

of the OSH Act. In addition, OSHA 

notes that the 100-or-more-employee 

threshold is appropriate since larger 

establishments typically have more 

resources to support electronic 

submission of case-specific injury and 

illness information to OSHA. OSHA 

also finds that the 100-or-employee 

threshold is appropriate because there is 

a lesser risk of employee reidentification 

from information published regarding 

larger establishments. (For more 

information on this issue, see the 

discussion of indirect identification in 

Section III.B of this Summary and 

Explanation.) 

In summary, after considering the 

entire record on the issue of the size 

threshold for submitting OSHA Form 

300 and 301 data, OSHA agrees with 

commenters who supported the 100-ormore-employee threshold for 

determining which establishments must 

electronically submit information from 

their 300 and 301 forms. The 100-ormore-employee threshold will allow 

OSHA to strike an appropriate balance 

between the total number of 

establishments required to submit casespecific data to OSHA and the total 

number of injury and illness cases 

collected, on the one hand, with burden 

on employers (especially smaller 

employers) on the other. As discussed 

above, as well as in Section IV, Final 

Economic Analysis, OSHA believes that 

establishments with 100 or more 

employees have the necessary personnel 

and IT resources to comply with the 

electronic submission requirement in 

final § 1904.41(a)(2). By setting the 

threshold at 100 or more employees and 

limiting the covered industries to the 

higher hazard industries listed in final 

appendix B to subpart E, the agency is 

focusing its data collection efforts in a 

more targeted manner. This approach is 

consistent with OSHA’s stated intention 

in the preamble to the proposed rule to 

balance the utility of the information 

collection for enforcement, outreach, 

and research, on the one hand, and the 

burden on employers to provide the 

information to OSHA, on the other 

hand. 

Accordingly, like the proposed rule, 

final § 1904.41(a)(2) requires 

establishments with 100 or more 

employees that are in the designated 

industries listed in appendix B to 

subpart E to electronically submit data 

from their 300 and 301 forms to OSHA 

once a year. 

b. The Criteria for Determining the 

Industries in Appendix B to Subpart E 

As stated above, OSHA proposed to 

require establishments with 100 or more 

employees at any time during the 

previous calendar year to annually 

submit their Form 300 and 301 if they 

are in an industry listed in proposed 

appendix B to subpart E. The criteria for 

including the designated industries in 

proposed appendix B to subpart E was 

based on a three-year average rate of 

Total Case Rate (TCR) in the BLS SOII 

for 2017, 2018, and 2019, of at least 3.5 

cases per 100 full-time-employees. In 

the preamble to the proposed rule, 

OSHA requested comment on whether 

TCR is the appropriate method for 

determining the list of industries in 

proposed appendix B to subpart E. In 

addition, OSHA specifically asked, ‘‘Is 

Total Case Rate (TCR) the most 

appropriate incidence rate to use for 

proposed appendix B to subpart E, or 

would the Days Away Restricted or 

Transferred (DART) rate be more 

appropriate?’’ (87 FR 18546). 

The TCR represents the number of 

work-related injuries and illnesses per 

100 full-time-employees during a oneyear period. It is based on all workrelated injuries and illnesses recorded 

on the OSHA 300 Log resulting in death, 

days away from work, work restriction 

or transfer to another job, and other 


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recorded cases (e.g., cases resulting in 

medical treatment beyond first aid). On 

the other hand, the DART rate is based 

only on the number of work-related 

injuries and illnesses recorded on the 

OSHA 300 Log resulting in days away 

from work, restricted work activity or 

transfer to another job. 

A number of commenters opined on 

the appropriate criteria for determining 

the industries designated in appendix B 

to Subpart E. Many of these commenters 

supported the proposed use of the TCR 

(e.g., Docket IDs 0030, 0040, 0047, 0048, 

0054, 0064, 0066, 0084, 0089). For 

example, AIHA indicated its support for 

using the TCR in the final rule, adding 

that, ‘‘All incident rate metrics suffer 

from inaccuracy due to a lack of 

understanding of complex and 

intricately nuanced recording rules. The 

TCR is the most widely used and least 

misunderstood of these measures in the 

United States’’ (Docket ID 0030). Also, 

the National Nurses Union stated that 

TCR is a more appropriate metric than 

a DART-rate-only metric because it 

includes all types of recorded injuries 

and illnesses, not just those where an 

employer gave an injured or ill 

employee ‘‘time to rest and recover’’ 

(Docket ID 0064). 

Other commenters argued against 

OSHA’s proposed use of the TCR and 

for the use of a DART-rate metric. For 

example, the International Bottled 

Water Association (IBWA) and the 

Coalition asserted that, per OSHA’s 

preamble, ‘‘[a]ppendix B is meant to 

reflect employers in higher hazard 

industries. While a higher DART may 

reflect such industries to some extent, a 

higher TCR does not. This is because the 

TCR captures relatively minor 

incidents—those that do not result in 

days away from work, job restriction, or 

transfer’’ (Docket IDs 0076, 0087). Both 

of these commenters expressed concern 

that ‘‘for example, under the proposal, 

employers in industries with very few 

or no ’major’ incidents (i.e., those that 

result in days away from work, job 

restriction, or transfer), but a larger 

number of ’minor’ incidents will 

unfairly be included in [a]ppendix B’’ 

(Docket IDs 0076, 0087). On the other 

hand, other commenters, such as AIHA, 

argued against the use of the DART rate 

(Docket ID 0030). 

Other commenters suggested other 

possible metrics in their comments. For 

example, NIOSH commented, ‘‘TCR 

may be the most appropriate single 

criterion for selection of industries; 

however, NIOSH believes that DART 

(Days Away, Restricted, or Transferred) 

and fatality rates are also valuable for 

determining the magnitude of injury 

risks in specific industries. There are 

two basic reasons why some industries 

would rank differently based on TCR 

than they would on DART or fatality 

rate. First, the nature of work differs 

among industries and can result in 

different ratios of mild to severe 

injuries. While the TCR represents 

mostly relatively mild injuries, the 

severest injuries are the most important 

targets of prevention and account for a 

very large share of the costs of injuries 

in the workers’ compensation system. 

Second, some industries may more fully 

report injuries than others and so tend 

to have a higher ratio of TCR to DART 

or fatality rate.’’ (Docket ID 0035, 

Attachment 2). The International 

Brotherhood of Teamsters concurred 

with NIOSH’s comment (Docket ID 

0083). AIHA offered a fourth possible 

metric: cases with days away, observing, 

‘‘One other candidate, cases with days 

away, is perhaps the most intuitive 

metric and most closely (though not 

exactly) aligned with workers’ 

compensation systems’’ (Docket ID 

0030). 

Finally, AFL–CIO ‘‘urge[d] OSHA to 

require all large establishments with 100 

or more employees, currently subject to 

recordkeeping standards, to 

electronically report detailed injury and 

illness information . . . as the value of 

these data has been thoroughly 

explained by the agency and record of 

evidence in the 2016 final rule’’ (Docket 

ID 0061). In other words, AFL–CIO 

asked OSHA to revise the proposed 

provision to eliminate the requirement 

that only those establishments in 

industries listed in appendix B would 

be required to report. In AFL–CIO’s 

recommendation, the only limitations 

would be establishment size and being 

routinely required to keep injury and 

illness records under part 1904. 

Having reviewed the information in 

the record, OSHA rejects AFL–CIO’s 

suggestion to require all large 

establishments with 100 or more 

employees (without regard to industry 

hazardousness) to submit information. 

In the provisions related to the 

electronic submission of Forms 300 and 

301, OSHA has decided that it is 

appropriate to focus on the most 

hazardous industries. Such a focus is a 

regular feature of OSHA’s recordkeeping 

regulations. For example, since 1982, 

OSHA has exempted some low-hazard 

industries from maintaining injury and 

illness records on a regular basis (see 

https://www.osha.gov/enforcement/ 

directives/cpl-02-00-135). This partial 

exemption for low-hazard industries 

currently appears in 29 CFR 1904.2. 

Similarly, since the 2016 final rule, 

OSHA has only required establishments 

with 20 or more employees but fewer 

than 250 employees to submit 

information from Form 300A if those 

establishments are classified in an 

industry listed in appendix A to subpart 

E to part 1904, i.e., if they are higher 

hazard industries. 

Focusing some recordkeeping 

requirements on higher hazard 

industries has the benefit of enabling 

OSHA to better focus its attention where 

it might have the highest impact, and 

lessens the burden on less hazardous 

industries. OSHA finds that such a 

balance is appropriate. Moreover, the 

agency will continue receiving 

information from Form 300A from all 

recordkeeping establishments with 250 

or more employees. If the information 

from submitting establishments’ Forms 

300A, or from the BLS SOII and/or 

Census of Fatal Occupational Injuries 

(CFOI), were to indicate that industries 

not listed on appendix B were becoming 

more hazardous, OSHA could consider 

engaging in notice-and-comment 

rulemaking to update appendix B. 

Further discussion on the possibility of 

updating appendix B appears below in 

this section of the Summary and 

Explanation. 

As to the appropriate criteria, OSHA 

has decided to use several data sources 

to populate the list of higher hazard 

industries in final appendix B to subpart 

E. Specifically, OSHA finds that the 

TCR, the DART rate, and the fatality rate 

are all important methods of identifying 

higher hazard industries. As noted by 

some commenters, while it is widely 

used in the United States and includes 

all types of recorded injuries and 

illnesses, the TCR also includes data 

concerning less severe injuries and 

illnesses (i.e., cases that resulted in 

medical treatment beyond first aid but 

did not involve loss of consciousness 

and/or did not result in restricted work 

or transfer to another job, days away 

from work, or death). OSHA still 

considers the TCR to be an appropriate 

rate to use for determining the list of 

industries in appendix B to subpart E, 

especially since covered establishments 

will be required to electronically submit 

information to OSHA on all their 

recordable cases (i.e., total cases). 

However, OSHA also agrees with 

commenters who suggested that 

information specifically about severe 

injuries and illnesses is a reliable 

indication of whether a specific 

industry is a high hazard industry. As 

NIOSH noted, the nature of work differs 

among industries, and this can result in 

different ratios of less severe and more 

severe injuries and illnesses. 

Accordingly, OSHA has decided to 

use the DART rate and the fatality rate 

in the BLS CFOI in addition to the TCR. 


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Adding the DART rate, which measures 

severe injuries and illnesses resulting in 

days away from work, restricted work 

activity, or transfer to another job, will 

ensure that industries with higher rates 

of severe injuries are included, while 

using the TCR will ensure that OSHA is 

capturing industries with higher injury 

and illness rates overall (including less 

severe injuries and illnesses and, as 

discussed by NNU, more serious 

injuries and illnesses in establishments 

where an employer does not give the 

injured or ill employee ‘‘time to rest and 

recover’’) (see Docket ID 0084). 

Adding the fatality rate will also be 

helpful because fatalities are more 

consistently reported than other injuries 

and illnesses. CFOI produces 

comprehensive counts of workplace 

fatalities in the United States. It is a 

Federal-State cooperative program that 

has been implemented in all 50 States 

and the District of Columbia since 1992. 

To compile counts that are as complete 

and accurate as possible, the census 

uses multiple sources to identify, verify, 

and profile fatal worker injuries. CFOI 

includes specific information about 

each workplace fatality, including 

information about occupation and other 

worker characteristics, equipment 

involved, and circumstances of the 

event. All of the information in the 

CFOI is obtained by cross-referencing 

the source records, such as death 

certificates, workers’ compensation 

reports, and Federal and State agency 

administrative reports. To ensure that 

fatalities are work-related, cases are 

substantiated with two or more 

independent source documents, or a 

source document and a follow-up 

questionnaire. The CFOI fatality rate is 

based on the number of deaths per 

100,000 full-time-or-equivalent 

employees. Adding the fatality rate from 

CFOI to the metrics used to determine 

which industries should report in this 

final rule allows OSHA to obtain data 

from industries with low non-fatal 

injury and illness rates but high fatality 

rates. 

OSHA does not think that the metric 

offered by AIHA (cases with days away, 

or DAFW) is appropriate for this 

rulemaking. The DAFW rate is a subset 

of the DART rate. It does not include 

cases in which an ill or injured 

employee continues to work but is 

engaged in restricted activities or job 

transfer. This is obviously more possible 

in some establishments and industries 

than in others. For example, there might 

be no alternative for restricted work or 

job transfer at a nursing care facility for 

a patient-care worker who is unable to 

perform their regular job duties due to 

an injury; thus, the injury would result 

in a DAFW case. In contrast, it might be 

possible to temporarily reassign an 

injured production-line worker to a 

different job on the production line that 

accounts for the restrictions due to the 

injury; thus, the injury would not result 

in a DAFW case. However, both 

injuries—the days away from work case, 

as well as the restricted activities/job 

transfer case—would be DART cases. 

Thus, the DART rate is a better indicator 

of hazardousness across establishments 

and industries. 

Given the concerns raised by 

commenters about specific injury and 

illness rates, and in order to accurately 

identify higher hazard industries, OSHA 

decided to use several factors in 

determining the list of industries in 

final appendix B to subpart E. In 

addition to using the TCR, OSHA 

analyzed industry hazardousness based 

on the DART rate and the fatality rate. 

OSHA believes that using this approach 

more comprehensively identifies higher 

hazard industries. The agency also finds 

that this combination of factors furthers 

the agency’s intention of balancing the 

number of establishments covered and 

injury and illness cases reported with 

the burden on employers, as well as not 

expanding the submission requirement 

beyond establishments that are already 

required to report information from the 

Form 300A. OSHA again notes that all 

of the industries in final appendix B to 

subpart E are also included in final 

appendix A to subpart E. 

c. Cut-Off Rates for Determining the 

Industries in Appendix B to Subpart E 

Having determined the appropriate 

metrics (TCR, DART, and fatality rates), 

OSHA now turns to the appropriate cutoff rates for selecting the designated 

industries in appendix B to subpart E 

using the chosen metrics. As discussed 

above, OSHA proposed including those 

industries which had a 3-year-average 

rate of total recordable cases (Total Case 

Rate, or TCR) in the BLS SOII for 2017, 

2018, and 2019, of at least 3.5 cases per 

100 full-time-equivalent employees. 

Some commenters argued that the 

proposed cut-off (3.5 per 100 workers) 

was too low (e.g., Docket IDs 0054, 

0076, 0087). For example, the 

Employers E-Recordkeeping Coalition 

(‘‘Coalition’’) argued that, whether the 

DART or TCR rate is used, ‘‘OSHA 

should establish a higher threshold 

value than it proposes.’’ The Coalition 

explained that the proposed threshold 

TCR value of 3.5 was based on BLS SOII 

data for 2017, 2018, and 2019, but that 

‘‘BLS data—specifically data 

representing the highest rates for cases 

with days away from work, restricted 

work activity, or job transfer (DART)— 

from the same time period (2017, 2018, 

2019) demonstrates that the lowest 

incidence rate was 4.2.’’ It further 

observed, ‘‘Similarly, even if use of the 

TCR for purposes of determining those 

industries that should be included in 

[a]ppendix B is maintained in the final 

rule, a higher threshold value should be 

used. According to BLS data 

representing highest rates for total cases 

from the same time period (2017, 2018, 

2019), the lowest incidence rate was 

6.8. . . Accordingly, to the extent the 

TCR is used for purposes of determining 

those industries that should be included 

in [a]ppendix B, the threshold value 

should be set at no less than 6.8. ’’ 

(Docket ID 0087). IBWA submitted a 

similar comment (Docket ID 0076). 

Additionally, Dow Chemical Company 

argued that OSHA should use a TCR 

‘‘triggering’’ rate that is substantially 

higher than the private industry average 

for full time equivalent workers (which 

was 2.8 in 2019 and 2.7 in 2020). Dow 

explained, ‘‘This will reduce the burden 

on industry sectors who have a TCR at 

or below private industry average’’ 

(Docket ID 0054). 

Other commenters suggested that the 

proposed cut-off of 3.5 was too high 

(e.g., Docket IDs 0037, 0047, 0048, 0049, 

0066, 0069, 0079, 0084). Several 

commenters urged OSHA to include 

more industries in appendix B by 

lowering the cut-off to the three-year 

national average for private industry. 

These commenters expressed concern 

about many hazardous workplaces and 

high-risk occupations in industries that 

are above the national average for 

private industry but below the proposed 

3.5 cut-off, including many industries 

with establishments operated by the 

nation’s major employers (Docket IDs 

0030, 0047, 0048, 0049, 0066, 0069, 

0084). For example, the Strategic 

Organizing Center (SOC) ‘‘applaud[ed] 

OSHA’s decision to lower the 

employment threshold for report[ing] 

the 300/301 data . . . [but] urge[d] 

OSHA to reject the use of such a high 

rate threshold for the inclusion of the 

specific industry codes’’ (Docket 

ID0079). In support of this 

recommendation, SOC argued that 

OSHA had not justified the proposed 

TCR level other than projecting that it 

would result in a volume of cases 

(roughly 750,000) similar to the 2016 

rule (Docket ID 0079). 

With regard to the appropriate value 

for triggering the inclusion of industries 

in appendix B to subpart E, the final 

rule, like the proposed rule, has a cutoff of 3.5 cases per 100 employees. As 

reflected in the comments, the 3.5 cutoff value, which OSHA proposed, 

represents a balance between more 


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4See https://www.bls.gov/iif/nonfatal-injuriesand-illnesses-tables/soii-summary-historical/ 

supplemental-table-1-2019-national.xlsx for the 

TCR table and https://www.bls.gov/iif/nonfatalinjuries-and-illnesses-tables/soii-summaryhistorical/supplemental-table-2-2019-national.xlsx 

for the DART table. 

information and more employer burden 

with a lower cut-off, and less 

information and less employer burden 

with a higher cut-off. For example, the 

cut-offs suggested by the Employers ERecordkeeping Coalition in their 

comment (Docket ID 0087) would only 

result in the submission of an estimated 

90,395 cases from 3,087 establishments 

(using the 6.8 TCR rate taken from BLS 

table 19SNR01 ‘‘Highest incidence rates 

of total nonfatal occupational injury and 

illness cases’’, 2019) or an estimated 

72,143 cases from 3,946 establishments 

(using the 4.2 DART rate taken from 

BLS table 19SNR02 ‘‘Highest incidence 

rates of nonfatal occupational injury and 

illness cases with days away from work, 

restricted work activity, or job transfer’’, 

2019).4 The Coalition’s proposal would 

severely restrict the list of industries 

which would be required to submit data 

pursuant to this rulemaking, which 

would, in turn, restrict OSHA’s ability 

to target its enforcement and 

compliance assistance efforts beyond 

that small subset of industries. It would 

also limit the information available to 

interested parties for occupational safety 

and health purposes, e.g., to evaluate 

occupational safety and health trends 

and patterns. Consequently, it would 

drastically decrease the benefits of the 

rule. 

In addition, for this final rule, OSHA 

has chosen to use a DART rate of 2.25 

per 100 employees and CFOI fatality 

rate of 5.7 deaths per 100,000 full-timeor-equivalent employees) to identify 

higher hazard industries. Both represent 

1.5 times the national average for 

private industry for the respective rates. 

OSHA believes that these thresholds, 

which are well above the national 

averages for private industry, represent 

an appropriate cut-off for determining 

whether a given industry is a higher 

hazard industry. As discussed below, 

adding the DART criterion and the CFOI 

fatality criterion adds 6 industries to 

Appendix B (3 per criterion) that are 

below the TCR threshold; this 

addresses, to some degree, the concerns 

expressed by commenters about 

hazardous workplaces that are below 

the TCR threshold. 

Moreover, OSHA projects that the use 

of these cutoffs will enable it to receive 

Form 300 and 301 data on 

approximately 750,000 cases of injuries 

and illnesses per year. Based on the 

record of the 2016 rulemaking, OSHA 

determined that roughly this amount of 

cases would provide OSHA and others 

with sufficient information to make 

workplaces safer, while not 

overburdening employers (see 87 FR 

18543). Nothing in the record of this 

rulemaking, or the comments OSHA had 

received in the 2019 rulemaking, has 

convinced OSHA that a different 

balance should be struck in this rule. 

However, as discussed above, the 

agency has tailored the collection to 

industries and establishments where the 

information would be most useful for 

improving workplace safety and health. 

OSHA only proposed including 

industries in appendix B if they also 

appeared in appendix A; establishments 

with 20 or more employees in industries 

in appendix A have already been 

required to electronically submit 

information from their Form 300A since 

2017. OSHA did not receive any 

comments objecting to this part of the 

proposal and has decided to retain this 

requirement in the final rule. However, 

several interested parties argued that 

additional appendix A industries 

should be listed in appendix B. 

For example, the AFL–CIO 

commented that the proposed exclusion 

for large establishments in certain 

industries from appendix B, ‘‘which 

further limits the ability to identify 

trends among workplace hazards in high 

risk industries,’’ means that a significant 

number of industries will not be 

required to electronically submit OSHA 

Form 300 and 301 data to OSHA, 

including all of the utility sectors and 

almost all of the construction 

industry[,]’’ as well as a number of other 

industries with large establishments 

(Docket ID 0061). The Communications 

Workers of America commented that 

appendix B, like appendix A, should 

include all industries in the 

manufacturing sector (Docket ID 0092). 

SOC similarly characterized OSHA’s 

proposal to limit the requirement to 

submit Forms 300 and 301 to industries 

with a TCR of at least 3.5 as a decision 

to ‘‘arbitrarily exclude entire hazardous 

industries from the revised reporting 

requirement.’’ In particular, SOC 

objected to the exclusion of the hotel 

industry, which, based on an analysis 

by the National Employment Law 

Project, SOC believes is a high hazard 

industry (Docket ID 0079). 

The AFL–CIO also commented that 

the industry exclusions from appendix 

B should not be based on BLS SOII data, 

because the data are an inadequate 

measure of industry hazardousness. It 

argued that SOII data, even recent threeyear averages, is not an effective way to 

ensure that high-hazard industries are 

captured consistently in the data. The 

AFL–CIO further asserted that, 

‘‘[R]elying on these data to create 

exclusion criteria ignores the known 

limitations of current workplace injury 

and illnesses data. Over the last decade, 

studies have documented that the BLS 

injury and illness survey fails to capture 

an estimated 33–69% of work-related 

injuries. Some of the undercount has 

been attributed to injuries and illnesses 

excluded from the BLS survey’s scope 

and the design of the survey.’’ (Docket 

ID 0061). 

In response, OSHA notes that there is 

no express exemption for specific 

industries in appendix B to subpart E. 

The list of industries in final appendix 

B is based on objective injury and 

illness data indicating that a specific 

industry is a higher hazard industry. 

Any exclusion or omission from the list 

of designated industries in final 

appendix B is solely the result of a given 

industry not meeting the higher hazard 

industry criteria specified above, criteria 

which have been expanded under this 

final rule based on public comments. 

Moreover, OSHA disagrees with SOC’s 

characterization of its preliminary 

decisions regarding the industries 

included on appendix B as ‘‘arbitrar[y]’’ 

(Docket ID 0079). As stated throughout 

the preamble to this final rule, in 

proposing a higher hazard cut-off level, 

the agency was seeking to balance the 

utility of the information collection for 

enforcement, outreach, and research, on 

the one hand, with the burden on 

establishments on the other. That is not 

to say that the agency found that it 

would be economically infeasible for 

industries other than those listed on 

proposed or final appendix B to submit 

their Form 300 or 301 data. Indeed, no 

such finding is required here. Rather, 

OSHA looked to see what amount of 

information would be useful, 

considering the number of 

establishments that would be reporting 

under the final rule, the number of cases 

that would be submitted, the agency’s 

capacity to review such information, 

and the benefits that would stem from 

the collection. The agency has 

determined that at the current time, 

requiring larger, high hazard 

establishments to submit their data can 

make a substantial impact on worker 

safety and health, and the benefits of 

making other employers do so as well is 

less certain. OSHA has decided to focus 

the rule on the establishments in 

industries in which additional 

information has the most promise of 

addressing serious workplace hazards. 

Further, OSHA notes that it will 

continue to receive 300A data from very 

large establishments (those with 250 or 


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more employees) in all industries 

required to keep records under part 

1904 and can continue to use those data 

for targeting purposes as well. OSHA 

will monitor the data it receives, and in 

the future, it may consider new noticeand-comment rulemaking to adjust its 

approach in light of its experience with 

the data collected under this final rule. 

In addition, OSHA disagrees with the 

comment from the AFL–CIO that BLS 

SOII data are not a reliable method for 

measuring industry hazardousness. 

While BLS and its research partners 

have conducted multiple studies which 

indicate that SOII fails to capture some 

cases, the BLS SOII is an important 

indicator of occupational safety and 

health and is the only source of 

national-level data on nonfatal injuries 

and illnesses that spans the private 

sector and State and local governments. 

Accordingly, OSHA is not making any 

adjustments to the proposed appendix B 

industries based on these comments. 

However, as discussed in more detail 

below, OSHA notes that the application 

of the updated criteria for inclusion on 

appendix B has led to six new 

industries being added to appendix B. 

These industries include NAICS 1133, 

Logging, NAICS 4853, Taxi and 

Limousine Services, and NAICS 4889, 

Other Support Activities for 

Transportation—all industries that 

AFL–CIO identified as industries with 

large establishments not included in 

proposed appendix B that ‘‘should be 

required to submit the injury and illness 

data they are already required to 

collect’’ (Docket ID 0061). Consequently, 

the final rule responds to AFL–CIO’s 

comment in part by adding three 

additional NAICS codes based on the 

objective criteria in this final rule. 

d. Using the Most Current Data To 

Determine Designated Industries 

In the preamble to the proposed rule, 

OSHA stated that the agency anticipated 

that more current industry-level injury 

and illness data from BLS, as well as 

more establishment-specific injury and 

illness information from the ITA, would 

become available. OSHA therefore 

explained that the agency may rely on 

the most current data available, as 

appropriate, for determining the list of 

industries in appendix B to subpart E. 

OSHA sought comment from the public 

on whether the agency should use the 

most current data when developing the 

final rule (see 87 FR 18543). 

The Phylmar Regulatory Roundtable 

(PRR) Occupational Safety and Health, 

OSH Forum commented that while it 

agrees with the concept that the most 

up-to-date information is the most 

accurate and should determine the list 

of industries, OSHA should not include 

any new industries in appendix B to 

subpart E in the final rule. According to 

this commenter, doing so would not 

allow impacted industries the 

opportunity to comment on such 

significant changes. Also, PRR 

recommended that any additions to the 

list of industries (or sub-sets of 

industries) in appendix B that result 

from OSHA analyzing updated data 

should be conducted through notice and 

comment rulemaking (Docket ID 0094). 

In response, OSHA agrees with PRR 

that the list of higher hazard industries 

in appendix B to subpart E should be 

based on data that was available at the 

time of the proposed rule. OSHA notes 

that, although the criteria used for 

determining the list of higher hazard 

industries in appendix B has been 

modified for the final rule, all of the 

data used to develop those criteria were 

available at the time of the proposed 

rule. Specifically, the cut-off threshold 

used for the TCR rate is based on a 3- 

year-average from 2017, 2018, and 2019, 

the cut-off threshold for the DART rate 

is based on a 3-year-average from 2017, 

2018, and 2019, and the cut-off 

threshold for the fatality rate is based on 

data from 2019. 

Additionally, in the preamble to the 

proposed rule, OSHA stated that during 

the 2016 rulemaking, the agency agreed 

with commenters who stated that the 

list of designated industries (listed in 

appendix A at that time) should not be 

updated each year. OSHA explained 

that moving industries in and out of the 

appendix each year would be confusing. 

OSHA also stated that keeping the same 

industries in the appendix each year 

would increase the stability of the 

system and reduce uncertainty for 

employers. Accordingly, OSHA did not, 

as part of the 2016 rulemaking, include 

a requirement to annually or 

periodically adjust the list of designated 

industries to reflect more recent BLS 

injury and illness data. OSHA also 

committed that any such revision to the 

list of designated industries in the 

future would require additional notice 

and comment rulemaking (see 87 FR 

29641). However, OSHA again raised 

the issue of periodic updating of the 

designated industries in appendix B to 

subpart E in the preamble to the 

proposed rule in this rulemaking (see 87 

FR 18543). Specifically, in Alternative 

#2, OSHA explained the above 

information regarding its decision in the 

2016 rulemaking, explained that it 

‘‘could regularly update the list of 

designated industries in proposed 

appendix B (industries where 

establishments with 100 or more 

employees must submit information 

from the Form 300 and 301 as well as 

the 300A)—for example, every 6 years, 

to align with the PRA approval 

periods,’’ and then welcomed comment 

on this issue (87 FR 18543). 

OSHA received several comments on 

this issue. In its comments, Dow stated 

that it did not support the regular 

updating of the list of designated 

industries proposed in appendix B. Dow 

argued, ‘‘Revising this list and moving 

employers in and out would be 

extremely confusing and introduce 

unneeded instability into the data 

collection process. If the list of 

designated industries in appendix B 

were to be revised, OSHA must provide 

notice and a rulemaking comment 

period’’ (Docket ID 0054). In contrast, 

PRR commented that, if OSHA’s 

assumption that the collection of 

establishment-specific data will reduce 

injury and illness rates, then the agency 

should be able to analyze data for the 

designated industries and consider 

updating and removing industries from 

the appendices (Docket ID 0094). 

OSHA agrees with the comments 

stating that the list of designated 

industries in appendix B to subpart E 

should not be updated on a regular 

basis. As in the 2016 rulemaking, OSHA 

finds that moving industries in and out 

of appendix B to subpart E on a periodic 

basis would be confusing for employers. 

Employers are less likely to encounter 

confusion when trying to determine 

whether their establishments are 

required to electronically submit data to 

OSHA if the list of industries in 

appendix B remains stable; appropriate 

future adjustments, if any, would be 

accomplished through notice and 

comment rulemaking. OSHA also 

believes that keeping the same 

industries in appendix B to subpart E 

will increase the stability of the 

electronic submission system and 

increase compliance with the 

submission requirement. Accordingly, 

OSHA will not, as part of this 

rulemaking, include a provision for the 

regular or periodic updating of the list 

of industries in appendix B to subpart 

E. 

In making this decision, OSHA 

acknowledges that industries’ injury 

and illness rates may change. As PRR 

commented, OSHA expects that this 

rulemaking will aid in the decrease in 

such rates. If OSHA’s ongoing analyses 

of injury and illness rates show a 

decrease in injuries and illnesses in 

particular industries included on 

appendix B, then OSHA may consider 

removing those industries from 

appendix B. Similarly, if OSHA learns 

that injury and illness rates in industries 

that are not included on appendix B are 


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rising, then OSHA may consider adding 

those industries to appendix B. 

However, in either case, OSHA would 

propose any such change via noticeand-comment rulemaking, in part to 

obviate the confusion mentioned above. 

e. Industries Included in Final 

Appendix B After Applying the Final 

Criteria, Cut-Off Rates, and Data Sources 

Based on the above decisions, final 

appendix B to subpart E of part 1904 

includes industries that: 

1. had a 3-year-average rate of total 

recordable cases (Total Case Rate, or 

TCR) in the BLS SOII for 2017, 2018, 

and 2019, of at least 3.5 cases per 100 

full-time-equivalent employees, OR 

2. had a 3-year-average DART rate in 

the BLS SOII for 2017, 2018, and 2019 

of at least 2.25 cases per 100 full-timeequivalent employees, OR 

3. had a fatality rate in the BLS 

Census of Fatal Occupational Injuries 

(CFOI) of at least 5.7 deaths per 100,000 

full-time-equivalent employees, AND 

4. are included in appendix A to 

subpart E. (All of the industries in 

appendix B are also in appendix A.) 

No industries were removed from 

appendix B based on these criteria. 

However, six new industries have been 

added to appendix B. The new 

industries are: 

• NAICS 1133—Logging (2019 fatality 

rate of 47.6), 

• NAICS 1142—Hunting and 

Trapping (three-year average DART rate 

of 3.1), 

• NAICS 3379—Other Furniture 

Related Product Manufacturing (threeyear average DART rate of 2.27), 

• NAICS 4239—Miscellaneous 

Durable Goods Merchant Wholesalers 

(2019 fatality rate of 15.6), 

• NAICS 4853—Taxi and Limousine 

Service (2019 fatality rate of 6.9), and 

• NAICS 4889—Other Support 

Activities for Transportation (three-year 

average DART rate of 2.4). 

The application of the criteria and 

cut-offs to each industry that was added 

to appendix B is summarized in the 

following table: 

NEW INDUSTRIES IN FINAL APPENDIX B 

2017 NAICS 4-digit Industry High TCR High 

DART 

High 

fatality 

rate 

1133 ....................... Logging ........................................................................................................................... No .......... ................ Yes. 

1142 ....................... Hunting and Trapping ..................................................................................................... No .......... Yes. 

3379 ....................... Other Furniture Related Product Manufacturing ............................................................ No .......... Yes. 

4239 ....................... Miscellaneous Durable Goods Merchant Wholesalers ................................................... No .......... ................ Yes. 

4853 ....................... Taxi and Limousine Service ........................................................................................... No .......... ................ Yes. 

4889 ....................... Other Support Activities for Transportation .................................................................... No .......... Yes. 

All of the establishments with 100 or 

more employees in these newly 

included industries are also included in 

appendix A to subpart E, and, therefore, 

have been required to electronically 

submit data from their 300A to OSHA 

once a year since January 1, 2017. 

Because of their inclusion in appendix 

A, OSHA finds that each of these newly 

included industries should have been 

aware of this rulemaking. Moreover, in 

the preamble to the proposed rule, 

OSHA specifically indicated that the 

criteria for determining higher hazard 

industries might be modified for the 

final rule (indeed, OSHA asked for 

comment on this issue (see, e.g., 87 FR 

18543, 18546)). Consequently, OSHA 

finds that the proposal placed all six of 

the newly added industries on notice 

that they could be included in appendix 

B in this final rule and, thus, these 

industries had an opportunity to 

comment on issues related to that 

determination. 

In the proposed rule, OSHA stated 

that it was proposing one exception to 

these criteria, for the United States 

Postal Service (USPS), which is the only 

employer in NAICS 4911 Postal Service. 

OSHA explained BLS does not include 

USPS in the SOII. However, under the 

Postal Employees Safety Enhancement 

Act (Pub. L. 105–241), OSHA treats the 

USPS as a private sector employer for 

purposes of occupational safety and 

health, and establishments in NAICS 

4911 (i.e., USPS establishments) with 20 

or more employees are currently 

required to electronically submit Form 

300A information to OSHA. Using the 

2017, 2018, and 2019 data submitted by 

USPS, OSHA calculated a TCR of 7.5 for 

NAICS 4911. Because this TCR is greater 

than the proposed 3.5 criterion for 

designated industries in proposed 

appendix B, OSHA included NAICS 

4911 in proposed appendix B to subpart 

E. In so doing, OSHA noted that NAICS 

4911 was also included in both current 

and proposed appendix A to subpart E 

(87 FR 18543). 

OSHA did not receive any comments 

from interested parties regarding the 

proposed inclusion of USPS in 

appendix B. Due to the lack of an 

objection to its inclusion and USPS’s 

high TCR level (as calculated by OSHA), 

the agency has decided to include USPS 

in the final version of appendix B. 

The final appendix B to subpart E is 

as follows: 

NAICS Industry 

1111 ....................... Oilseed and Grain Farming. 

1112 ....................... Vegetable and Melon Farming. 

1113 ....................... Fruit and Tree Nut Farming. 

1114 ....................... Greenhouse, Nursery, and Floriculture Production. 

1119 ....................... Other Crop Farming. 

1121 ....................... Cattle Ranching and Farming. 

1122 ....................... Hog and Pig Farming. 

1123 ....................... Poultry and Egg Production. 

1129 ....................... Other Animal Production. 

1133 ....................... Logging. 

1141 ....................... Fishing. 

1142 ....................... Hunting and Trapping. 

1151 ....................... Support Activities for Crop Production. 

1152 ....................... Support Activities for Animal Production. 


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NAICS Industry 

1153 ....................... Support Activities for Forestry. 

2213 ....................... Water, Sewage and Other Systems. 

2381 ....................... Foundation, Structure, and Building Exterior Contractors. 

3111 ....................... Animal Food Manufacturing. 

3113 ....................... Sugar and Confectionery Product Manufacturing. 

3114 ....................... Fruit and Vegetable Preserving and Specialty Food Manufacturing. 

3115 ....................... Dairy Product Manufacturing. 

3116 ....................... Animal Slaughtering and Processing. 

3117 ....................... Seafood Product Preparation and Packaging. 

3118 ....................... Bakeries and Tortilla Manufacturing. 

3119 ....................... Other Food Manufacturing. 

3121 ....................... Beverage Manufacturing. 

3161 ....................... Leather and Hide Tanning and Finishing. 

3162 ....................... Footwear Manufacturing. 

3211 ....................... Sawmills and Wood Preservation. 

3212 ....................... Veneer, Plywood, and Engineered Wood Product Manufacturing. 

3219 ....................... Other Wood Product Manufacturing. 

3261 ....................... Plastics Product Manufacturing. 

3262 ....................... Rubber Product Manufacturing. 

3271 ....................... Clay Product and Refractory Manufacturing. 

3272 ....................... Glass and Glass Product Manufacturing. 

3273 ....................... Cement and Concrete Product Manufacturing. 

3279 ....................... Other Nonmetallic Mineral Product Manufacturing. 

3312 ....................... Steel Product Manufacturing from Purchased Steel. 

3314 ....................... Nonferrous Metal (except Aluminum) Production and Processing. 

3315 ....................... Foundries. 

3321 ....................... Forging and Stamping. 

3323 ....................... Architectural and Structural Metals Manufacturing. 

3324 ....................... Boiler, Tank, and Shipping Container Manufacturing. 

3325 ....................... Hardware Manufacturing. 

3326 ....................... Spring and Wire Product Manufacturing. 

3327 ....................... Machine Shops; Turned Product; and Screw, Nut, and Bolt Manufacturing. 

3328 ....................... Coating, Engraving, Heat Treating, and Allied Activities. 

3331 ....................... Agriculture, Construction, and Mining Machinery Manufacturing. 

3335 ....................... Metalworking Machinery Manufacturing. 

3361 ....................... Motor Vehicle Manufacturing. 

3362 ....................... Motor Vehicle Body and Trailer Manufacturing. 

3363 ....................... Motor Vehicle Parts Manufacturing. 

3366 ....................... Ship and Boat Building. 

3371 ....................... Household and Institutional Furniture and Kitchen Cabinet Manufacturing. 

3372 ....................... Office Furniture (including Fixtures) Manufacturing. 

3379 ....................... Other Furniture Related Product Manufacturing. 

4231 ....................... Motor Vehicle and Motor Vehicle Parts and Supplies Merchant Wholesalers. 

4233 ....................... Lumber and Other Construction Materials Merchant Wholesalers. 

4235 ....................... Metal and Mineral (except Petroleum) Merchant Wholesalers. 

4239 ....................... Miscellaneous Durable Goods Merchant Wholesalers. 

4244 ....................... Grocery and Related Product Merchant Wholesalers. 

4248 ....................... Beer, Wine, and Distilled Alcoholic Beverage Merchant Wholesalers. 

4413 ....................... Automotive Parts, Accessories, and Tire Stores. 

4422 ....................... Home Furnishings Stores. 

4441 ....................... Building Material and Supplies Dealers. 

4442 ....................... Lawn and Garden Equipment and Supplies Stores. 

4451 ....................... Grocery Stores. 

4522 ....................... Department Stores. 

4523 ....................... General Merchandise Stores, including Warehouse Clubs and Supercenters. 

4533 ....................... Used Merchandise Stores. 

4543 ....................... Direct Selling Establishments. 

4811 ....................... Scheduled Air Transportation. 

4841 ....................... General Freight Trucking. 

4842 ....................... Specialized Freight Trucking. 

4851 ....................... Urban Transit Systems. 

4852 ....................... Interurban and Rural Bus Transportation. 

4853 ....................... Taxi and Limousine Service. 

4854 ....................... School and Employee Bus Transportation. 

4859 ....................... Other Transit and Ground Passenger Transportation. 

4871 ....................... Scenic and Sightseeing Transportation, Land. 

4881 ....................... Support Activities for Air Transportation. 

4883 ....................... Support Activities for Water Transportation. 

4889 ....................... Other Support Activities for Transportation. 

4911 ....................... Postal Service. 

4921 ....................... Couriers and Express Delivery Services. 

4931 ....................... Warehousing and Storage. 

5322 ....................... Consumer Goods Rental. 

5621 ....................... Waste Collection. 


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NAICS Industry 

5622 ....................... Waste Treatment and Disposal. 

6219 ....................... Other Ambulatory Health Care Services. 

6221 ....................... General Medical and Surgical Hospitals. 

6222 ....................... Psychiatric and Substance Abuse Hospitals. 

6223 ....................... Specialty (except Psychiatric and Substance Abuse) Hospitals. 

6231 ....................... Nursing Care Facilities (Skilled Nursing Facilities). 

6232 ....................... Residential Intellectual and Developmental Disability, Mental Health, and Substance Abuse Facilities. 

6233 ....................... Continuing Care Retirement Communities and Assisted Living Facilities for the Elderly. 

6239 ....................... Other Residential Care Facilities. 

6243 ....................... Vocational Rehabilitation Services. 

7111 ....................... Performing Arts Companies. 

7112 ....................... Spectator Sports. 

7131 ....................... Amusement Parks and Arcades. 

7211 ....................... Traveler Accommodation. 

7212 ....................... RV (Recreational Vehicle) Parks and Recreational Camps. 

7223 ....................... Special Food Services. 

2. Information To Be Submitted 

Section 1904.41(b)(9) of the final rule 

specifies which information must be 

submitted under § 1904.41(a)(2). 

Consequently, comments on the 

proposed information to be submitted 

and OSHA’s responses to those 

comments are discussed in Section III.D 

of this Summary and Explanation, on 

§ 1904.41(b)(9). However, because this 

summary and explanation section 

covers comments on issues that relate to 

the information that establishments 

must submit under § 1904.41(a)(2), 

OSHA is briefly previewing those 

requirements here. Specifically, as laid 

out in question-and-answer format in 

§ 1904.41(b)(9), establishments that are 

required to submit information under 

§ 1904.41(a)(2) of this section must 

submit all the information from the 

OSHA Forms 300 and 301 except for the 

following case-specific information: 

• Employee name (column B), from 

the Log of Work-Related Injuries and 

Illnesses (OSHA Form 300). 

• Employee name (Field 1), employee 

address (Field 2), name of physician or 

other health care professional (Field 6), 

and facility name and address if 

treatment was given away from the 

worksite (Field 7) from the Injury and 

Illness Incident Report (OSHA Form 

301). 

Section 1904.41(b)(9) of the final rule 

is identical to proposed § 1904.41(b)(9). 

3. Publication of Electronic Data 

As discussed above, OSHA intends to 

make some of the data it collects public. 

The publication of specific data 

elements will in part be restricted by 

applicable Federal law, including 

provisions of the Freedom of 

Information Act (FOIA), as well as 

specific provisions within part 1904. 

OSHA will make the following data 

from Forms 300 and 301 available in a 

searchable online database: 

• Form 300 (the Log)—All collected 

data fields on the 300 Log will generally 

be made available on OSHA’s website. 

As specified in § 1904.41(b)(9), 

employee names will not be collected. 

OSHA notes that it often collects copies 

of establishments’ Forms 300 during 

inspections and includes them as part of 

the enforcement case file. Prior to this 

rulemaking, OSHA has not conducted a 

systematic collection of the information 

on the 300 Log. However, OSHA 

releases the Forms 300 that it does have 

(in case files) in response to FOIA 

requests, subject to application of the 

FOIA exemptions. In those responses, 

OSHA redacts employee names 

pursuant to FOIA Exemptions. 

• Form 301 (Incident Report)—All 

collected data fields on the right-hand 

side of the form (Fields 10 through 18) 

will generally be made available. As 

specified in § 1904.41(b)(9), employee 

name (Field 1), employee address (Field 

2), name of physician or other health 

care professional (Field 6), and facility 

name and address if treatment was 

given away from the worksite (Field 7) 

will not be collected. OSHA notes that 

it often collects copies of 

establishments’ Forms 301 during 

inspections and includes them as part of 

the enforcement case file. Prior to this 

rulemaking, OSHA has not conducted a 

systematic collection of the information 

on the 301 Incident Report. However, 

OSHA releases the forms that it does 

have in response to FOIA requests, 

subject to application of the FOIA 

exemptions. Section 1904.35(b)(2)(v)(B) 

prohibits employers from releasing the 

information in Fields 1 through 9 (the 

left-hand side of the form) to 

individuals other than the employee or 

former employee who suffered the 

injury or illness and his or her personal 

representatives, and OSHA does not 

release this information under FOIA. 

Similarly, OSHA will not publish 

establishment-specific data from the left 

side of Form 301. 

OSHA intends to publish information 

from the Forms 300 and 301 as both 

text-based and coded data. An example 

of text-based data would be, ‘‘Second 

degree burns on right forearm from 

acetylene torch’’ in Field F (‘‘Describe 

injury or illness, parts of body affected, 

and object/substance that directly 

injured or made person ill’’) on the 

Form 300. An example of coded data for 

this case, using the Occupational Injury 

and Illness Classification System 

(OIICS) Manual, would be: 

• Nature of injury: 1,520 (heat (thermal) 

burns, unspecified) 

• Part of body affected: 423 (forearm) 

• Source of injury or illness: 7,261 

(welding, cutting, and blow torches) 

• Event or exposure: 533 (contact with 

hot objects or substances) 

For text-based data, as discussed 

below, OSHA plans to use automated 

de-identification technology, 

supplemented with some manual 

review of the data, to identify and 

remove information that could 

reasonably be expected to identify 

individuals directly from the fields the 

agency intends to publish (as discussed 

above); the agency will not publish textbased data until such information, if 

any, has been identified and removed. 

For coded data, also as discussed below, 

OSHA plans to use an automated coding 

system to code the collected data; until 

the autocoding system has been tested 

and is in place, OSHA intends to only 

use and publish uncoded data. The 

coded data by its nature will not include 

any information which could reasonably 

be expected to identify employees 

directly, and thus there will be no need 

to use automated de-identification 

technology or manual de-identification 

before publishing coded data. 


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5OSHA, like other Federal agencies, is 

responsible for protecting personally identifiable 

information (PII) in accordance with law and 

policy. Throughout this preamble, OSHA identifies 

and discusses multiple ways in which the agency 

fulfills this responsibility. 

4. Benefits of Collecting and Publishing 

Data From Forms 300 and 301 

As discussed in more detail below, 

OSHA has determined that this final 

rule will improve worker safety and 

health because the collection of, and 

expanded public access to, 

establishment-specific, case-specific, 

injury and illness data from Forms 300 

and 301 will allow OSHA, employers, 

employees, researchers, safety 

consultants, and the general public to 

use the data in ways that will ultimately 

result in the reduction of occupational 

injuries and illnesses. 

In the preamble to the 2019 final rule, 

OSHA stated that, because the agency 

‘‘already has systems in place to use the 

300A data for enforcement targeting and 

compliance assistance without 

impacting worker privacy, and because 

the Form 300 and 301 data would 

provide uncertain additional value, the 

Form 300A data are sufficient for 

enforcement targeting and compliance 

assistance at this time’’ (84 FR 392). The 

uncertainty regarding the extent of the 

benefits was based, in part, on the 

determination that ‘‘[b]ecause . . . 

publishing the data would do more 

harm than good for reasons described 

more fully below and in the privacy 

discussion above, OSHA would not 

make the data public even if collected’’ 

(84 FR 390). In addition, at the time of 

the 2019 final rule, ‘‘OSHA ha[d] 

already taken the position that data from 

Form 300A is exempt from disclosure 

under FOIA and that OSHA will not 

make such data public for at least the 

approximately four years after its receipt 

that OSHA intends to use the data for 

enforcement purposes’’ (84 FR 391). 

Since publication of the 2019 final 

rule, however, OSHA is now better able 

to collect, analyze, and publish data 

from Forms 300 and 301, and advances 

in technology have reduced the risk that 

information that could reasonably be 

expected to identify individuals directly 

will be disclosed to the public. Also, 

improvements in technology have 

reduced the manual resources needed to 

identify and remove sensitive worker 

information from 300 and 301 forms. 

These developments will allow OSHA 

to more effectively review and analyze 

the collected 300 and 301 data and 

ensure that information which could 

reasonably be expected to identify 

employees directly is removed prior to 

publication. For example, as discussed 

below, more advanced autocoding 

technology will allow OSHA to more 

efficiently review and analyze the data, 

allowing the agency to focus its 

enforcement targeting and compliance 

assistance resources on specific hazards 

at establishments with safety and health 

problems, resulting in a reduction of 

work-related injuries and illnesses. 

Similarly, advances in technology to 

identify and remove information which 

could reasonably be expected to identify 

employees directly will reduce the 

resources needed to publish text-based 

information while adequately protecting 

worker privacy. In addition, OSHA 

plans to publish the coded data 

produced by the more advanced 

autocoding technology, which by its 

nature will not include any information 

which could reasonably be expected to 

identify employees directly.5

Additionally, as explained above, 

since 2020, there have been multiple 

court decisions adverse to the 

Department of Labor’s position that 

electronically submitted Form 300A 

data are exempt from public disclosure 

under the FOIA. In these decisions, 

courts have rejected the Department of 

Labor’s position that electronically 

submitted 300A injury and illness data 

was covered under the confidentiality 

exemption in FOIA Exemption 4. As a 

result, in August 2020, OSHA initiated 

a policy to post collected 300A data on 

its public website at https://

www.osha.gov/Establishment-SpecificInjury-and-Illness-Data, with 

submissions for calendar years 2016, 

2017, 2018, 2019, 2020, and 2021. 

Accordingly, based on the recent 

developments described above, and the 

additional information included in the 

record for this rulemaking, OSHA now 

believes there are significant benefits 

resulting from the collection and 

publication of establishment-specific, 

case-specific, injury and illness data 

from Forms 300 and 301. In addition, as 

explained below, OSHA concludes that 

the significant benefits associated with 

the collection and publication of Forms 

300 and 301 data outweigh the slight 

risk to employee privacy. Indeed, the 

benefits of collection alone would 

outweigh the slight risk to employee 

privacy. 

As explained in more detail below, 

after considering the record as a whole, 

including commenters’ responses to 

specific questions in the NPRM on this 

topic, OSHA finds that the collection of, 

and expanded public access to, 

establishment-specific, case-specific, 

injury and illness data will allow 

OSHA, employers, employees, potential 

customers, employee representatives, 

researchers, safety consultants, and the 

general public to use the data in ways 

that will ultimately result in the 

reduction of occupational injuries and 

illnesses (see 87 FR 18547). 

a. General Benefits of Collecting and 

Publishing Data From Forms 300 and 

301 

OSHA received several comments on 

the general benefits of collecting and 

publishing data from Forms 300 and 

301. For example, Miranda Ames 

commented, ‘‘The more data we have 

about workplace safety, the better we 

can do at protecting workers. Collection 

of information like this by OSHA will 

enable better statistical analysis of 

workplace injuries across industries, 

and incentivize employers to keep more 

thorough records of workplace incidents 

and accidents’’ (Docket ID 0011). 

Similarly, Cal/OSHA commented, 

‘‘Complete and accurate surveillance of 

occupational injury and illness is 

essential and holds significant value for 

informed policy decisions and for 

effective intervention and prevention 

programs. The policy of requiring 

submission of detailed information from 

larger employers specifically helps 

identify and abate workplace hazards by 

improving the surveillance of 

occupational injury and illness.’’ 

(Docket ID 0084). This commenter also 

explained that the proposed 

requirements for reporting detailed 

information, and the transparency that it 

creates, encourage and support accurate 

occupational injury and illness 

reporting (Docket ID 0084). Similarly, 

Centro de los Derechos del Migrante, 

Inc. commented that making the data 

publicly available will increase the 

accuracy of such records and address 

underreporting by employers (Docket ID 

0089). 

In addition, commenters suggested 

that the collection and publication of 

Forms 300 and 301 data will allow the 

agency to receive more detailed 

information on the nature and 

circumstances of work-related injuries 

and illnesses, and target its limited 

enforcement and compliance assistance 

resources to protect the greatest number 

of workers (Docket IDs 0040, 0064). 

Commenters also noted that this rule 

may particularly benefit low-income 

and minority workers (Docket IDs 0045, 

0048). For example, National COSH 

stated that Latino and Black workers are 

at greater risk of dying on the job than 

other workers, and this rule ‘‘is critical 

to improving worker safety and health, 

especially for workers at elevated risk of 

injury, illness and death’’ (Docket ID 

0048). 

On the other hand, some commenters 

questioned whether OSHA had 


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adequately justified the benefits of 

collecting and publishing data in the 

proposed rule. For example, NFIB stated 

that many of the reasons that OSHA 

gives in the preamble to the proposed 

rule to justify the collection and 

publication of information are ‘‘rather 

flimsy’’ (Docket ID 0036). Some 

commenters stated that the collected 

data would not benefit workplace safety 

and health, concluding that OSHA 

recordkeeping data are not useful. For 

example, an anonymous commenter 

stated that data collection is reactive, 

and that taxpayer money would be 

much better spent on proactive 

programs that improve safety and health 

in the workplace. This commenter also 

asked, ‘‘How do employers know that 

OSHA will not start targeting them due 

to injuries that are reported?’’ (Docket ID 

0014). The U.S. Poultry & Egg 

Association commented that the 

existing reporting rules are adequate to 

allow employers to identify risks and 

allow OSHA to direct its enforcement 

activities, and stated that a reduction in 

injury and illness rates in poultry 

processing and general manufacturing 

from 1994 to 2020 is evidence that 

OSHA’s proposed changes are 

unnecessary (Docket ID 0053). 

Mid Valley Agricultural Services 

commented, ‘‘It is unclear how the 

proposed rule will result in reductions 

to injuries/illnesses in the workplace or 

the frequency and severity of instances. 

Aggregating more data on workplace 

injuries/illnesses does nothing in and of 

itself to reduce the possibility of 

workplace injuries/illnesses’’ (Docket ID 

0019). The Plastics Industry Association 

(Docket ID 0086) and Angela Rodriguez 

(Docket ID 0052) submitted similar 

comments. In addition, the U.S. 

Chamber of Commerce resubmitted a 

comment from the 2016 rulemaking that 

argued that OSHA’s collection of injury 

and illness data would not lead to 

effective targeting of workplaces 

‘‘because information about an 

establishment’s incidences of workplace 

injuries and illnesses does not 

accurately or reliably correlate with an 

establishment that is hazardous or that 

has failed to take OSHA-compliant steps 

to prevent injuries’’ (Docket ID 0088, 

Attachment 2). The comment asserted 

that a study by the RAND Corporation 

‘‘found that no research supports the 

preconception that the goal of reducing 

workplace injuries and illnesses can be 

most effectively reached by focusing on 

workplaces with the highest number of 

incidents of injuries or illnesses’’ and 

that ‘‘there appears to be little 

relationship between the injury rate and 

the likelihood of violations at inspected 

establishments.’’ The comment 

concluded that ‘‘this proposed database 

will provide raw data subject to so many 

caveats, complexities, and assumptions 

as to be meaningless.’’ 

In response, OSHA agrees with 

commenters who generally stated that 

there are benefits resulting from the 

collection and publication of 

establishment-specific, case-specific, 

injury and illness data from Forms 300 

and 301. As discussed in more detail 

below, the primary purpose of the 

requirement in the final rule for the 

electronic submission of 300 and 301 

data, and the subsequent publication of 

certain data, is to prevent occupational 

injuries and illnesses through the use of 

timely, establishment-specific injury 

and illness data by OSHA, employers, 

employees, other Federal agencies and 

States, researchers, workplace safety 

consultants, and the public. The 

collection and publication of data from 

Forms 300 and 301 will not only 

increase the amount of information 

available for analysis, but will also 

result in more accurate statistics 

regarding work-related injuries and 

illnesses, including more detailed 

statistics on injuries and illnesses for 

specific occupations and industries. In 

other words, the increase in collected 

injury and illness data will necessarily 

result in more accurate statistics. In 

turn, more accurate statistics will 

enhance interested parties’ knowledge 

regarding specific workplace hazards. 

Relatedly, OSHA agrees with 

commenters that said making the data 

publicly available will increase the 

accuracy of occupational injury and 

illness reporting. To the extent that 

underreporting is a problem, the public 

availability of case-specific data will 

allow employees to assess whether their 

personally experienced injuries and 

illnesses have been accurately recorded 

on their employers’ Forms 300 and 301. 

Although others would not be able to 

identify that a specific employee 

suffered a particular injury or illness, 

OSHA expects that the injured or ill 

worker would be able to determine 

whether their particular injury or illness 

was recorded. This check would work 

in tandem with employees’ ability to 

check such things in an employer’s 

Forms 300 and 301 and would address 

employees’ fear that asking to view 

those forms could result in retaliation. 

OSHA has also discussed these issues in 

further detail in Section III.B.4.d of the 

Summary and Explanation. 

The requirement to submit 

establishment-specific, case-specific 

data will also assist OSHA in 

encouraging employers to prevent 

occupational injuries and illnesses by 

expanding OSHA’s access to the 

information that employers are already 

required to keep under part 1904. As 

noted elsewhere, OSHA typically only 

has access to establishment-specific, 

case-specific, injury and illness 

information when it conducts an onsite 

safety and health inspection at an 

individual establishment. However, the 

electronic submission of 300 and 301 

data will allow OSHA to obtain a much 

larger data set of information about 

work-related injuries and illnesses and 

will enable the agency to use its 

enforcement and compliance assistance 

resources more effectively. OSHA 

intends to use the collected data to 

identify establishments with recognized 

workplace hazards where workers face a 

high risk of sustaining occupational 

injuries and illnesses. 

The collection of establishmentspecific, case-specific information will 

also provide data for analyses that are 

not currently possible. OSHA plans to 

use the data collected from this final 

rule to assess changes in the types and 

rates of specific injuries and illnesses in 

a given industry over a long period of 

time. In addition, the data collection 

will allow OSHA to better evaluate the 

effectiveness and efficiency of its 

various safety and health programs, 

initiatives, and interventions in 

different industries and geographic 

areas. Additionally, for these reasons, 

OSHA disagrees with commenters that 

suggest current reporting requirements 

are adequate to protect worker safety 

and health. 

OSHA disagrees with commenters 

that stated that part 1904 injury and 

illness data are not useful in improving 

occupational safety and health, and that 

taxpayer funds would be better spent on 

more proactive measures. As noted 

above, OSHA’s injury and illness 

recordkeeping regulation has been in 

place since 1971. The information 

recorded on the OSHA forms is 

recognized by safety and health 

professionals as an essential tool for 

identifying and preventing workplace 

injuries and illnesses. Historically, 

employers, employees, and OSHA have 

used part 1904 information to identify 

injury and illness trends and to evaluate 

the effectiveness of abatement methods 

at an individual establishment. The 

collection and publication of certain 

data from the 300 and 301 forms 

required by this final rule will enable 

interested parties and OSHA to have 

access to a much larger data set, 

resulting in increased knowledge of 

workplace hazards, and a reduction in 

occupational injuries and illnesses. In 

addition, implementation of the 

collection and publication of 


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establishment-specific, case-specific, 

injury and illness data is a cost-effective 

measure used to improve workplace 

safety and health. OSHA estimates that 

the total cost for implementing the 

requirements of this final rule will have 

an annual cost to the government of 

approximately $554,000 per year. 

However, the agency expects that the 

increased knowledge of workplace 

hazards and injury and illness trends, as 

well as the expected improved accuracy 

of part 1904 records, will result in 

decreased workers’ compensation costs 

for employers and decreased healthcare 

costs for injured or ill employees by 

virtue of the reduction in workplaces 

injuries and illnesses that OSHA 

expects to result from this final rule. 

OSHA also notes, as discussed below, 

that the agency’s collection of this 

information will allow it to more 

effectively prioritize its compliance 

assistance resources, which will help 

employers better protect their 

employees. 

OSHA agrees that the injury and 

illness data collected as a result of this 

final rule may be used to target certain 

establishments for safety and health 

inspection or compliance assistance. 

The agency considers the use of the 

collected data for possible targeting of 

specific establishments for enforcement 

or compliance assistance intervention as 

a benefit of this final rule. Again, as 

noted above, OSHA expects the 

accuracy and quality of occupational 

injury and illness data to improve as a 

result of this final rule. The increased 

amount of data collected by the agency, 

along with the expected improvement in 

data accuracy, will enable OSHA to 

better analyze and evaluate workplace 

safety and health hazards. Accordingly, 

the overall improvement in the data 

collected by the agency will allow 

OSHA to more accurately and 

objectively target specific 

establishments where workers are at 

high risk and thereby reduce the overall 

occurrence of workplace injuries and 

illnesses. 

With regard to the Chamber’s 

comment on the 2013 RAND 

Corporation study, OSHA notes that the 

study focuses primarily on the 

effectiveness of various types of Cal/ 

OSHA inspections (e.g., programed, 

planned, and complaint) rather than on 

issues related to workplace injury and 

illness rates. Indeed, similar to how 

OSHA intends to use the collected data 

from this final rule, one of the 

recommendations included in the study 

states, ‘‘Workplaces in high-injury-rate 

industries that have not been inspected 

at all or not for many years should be 

identified and deserve some priority in 

programmed inspections’’ (see 

Inspection Targeting Issues for the 

California Department of Industrial 

Relations Division of Occupational 

Safety and Health (John Mendeloff & 

Seth A. Seabury) (Docket ID 0099) at 

13). Finally, as noted above, Cal/OSHA 

itself commented in this rulemaking 

that injury and illness surveillance is 

essential for informed policy decisions 

and in the identification, prevention, 

and abatement of workplace hazards 

(Docket ID 0084). 

Additionally, the National Propane 

Gas Association stated that OSHA ‘‘does 

not provide any details as to how 

publicly available information could 

improve workplace safety’’ (Docket ID 

0050). In response, as the agency 

explained in the NPRM (87 FR 18538), 

by that point in time, OSHA had 

successfully collected reference year 

2016 through 2020 Form 300A data 

through the OSHA Injury Tracking 

Application. (Since publication of the 

NPRM, OSHA has completed collection 

of reference year 2021 Form 300A data 

and has begun collecting 2022 data.) 

Approximately 300,000 records have 

been submitted to the agency each year. 

OSHA has successfully analyzed these 

data to identify establishments with 

elevated injury and illness rates and has 

focused both its enforcement and 

outreach resources towards these 

establishments. This experience 

demonstrates OSHA’s ability to collect, 

analyze, and use large volumes of data 

to interact with establishments where 

workers are being injured or becoming 

ill. However, this same experience has 

demonstrated the limits of the 300A 

data currently collected. As explained 

in more detail below, the collection and 

publication of establishment-specific, 

case-specific, injury and illness data 

from Forms 300 and 301 will result in 

significant benefits for the agency. 

The International Bottled Water 

Association (IBWA) commented, from 

an enforcement standpoint, ‘‘by the time 

the data could be evaluated for use in 

selecting OSHA’s enforcement targets, 

the data would surely be stale and 

provide no useful basis for the agency 

to initiate enforcement against 

employers within the six-month statute 

of limitations set forth in the OSH Act.’’ 

This commenter also stated that, 

‘‘[b]ecause the data is insufficient in and 

of itself as a targeting tool, and because 

OSHA would be able to rely on such 

data only when it likely no longer 

reflects current conditions at a 

particular worksite, OSHA’s 

enforcement program is better served by 

continuing to use 300A summary data to 

target enforcement resources,’’ and then 

obtaining a copy employer’s current 

Forms 300 and 301 at the time of an 

inspection (Docket ID 0076). IBWA 

added, ‘‘[u]sing the more detailed 300 

and 301 data in the context of an 

individual inspection, as the agency has 

historically done, is a better and more 

effective use of this data than OSHA’s 

proposed new plan’’ (Docket ID 0076). 

In response, for purposes of 

enforcement inspection and compliance 

assistance targeting, the agency intends 

to use the collected data from this final 

rule in two ways. First, OSHA plans to 

continue to use administrative plans 

based on neutral criteria to target 

individual establishments with high 

injury and illness rates based on 

submitted Form 300A summary data. 

Second, OSHA intends to use 

administrative plans based on neutral 

criteria to target individual 

establishments based on submitted casespecific, establishment-specific, injury 

and illness data from the Forms 300 and 

301. 

OSHA agrees with IBWA that relying 

on Form 300A summary data is an 

effective source of information for 

targeting the agency’s enforcement 

resources. For example, the SiteSpecific Targeting (SST) plan is OSHA’s 

main site-specific programmed 

inspection initiative for nonconstruction workplaces that have 20 or 

more employees. Currently, the SST 

program targets individual 

establishments based on 300A injury 

and illness data that employers are 

already required to electronically 

submit to OSHA under 29 CFR 1904.41. 

OSHA uses submitted 300A data to 

calculate injury and illness rates for 

individual establishments. The SST 

program helps OSHA achieve the goal of 

ensuring that employers provide safe 

and healthful workplaces by directing 

enforcement resources to those 

workplaces with the highest rates of 

injuries and illnesses. Moving forward, 

OSHA intends to continue to use the 

300A data submitted under 

1904.41(a)(1) of this final rule to 

calculate injury and illness rates and 

target individual establishments for 

inspection under the SST. 

OSHA also intends to use collected 

case-specific, establishment-specific 

data from the Forms 300 and 301 to 

identify individual establishments for 

enforcement inspection and compliance 

assistance outreach. OSHA believes that 

reviewing and analyzing specific data 

from the Forms 300 and 301 is an 

effective method for the agency to 

identify individual establishments for 

enforcement inspection or compliance 

assistance targeting. For example, OSHA 

will be able to use 300 and 301 data to 

identify specific hazards at a given 


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establishment. In turn, the agency will 

be able to more effectively deploy its 

enforcement and compliance assistance 

resources to eliminate identified 

hazards and enhance worker safety and 

health. Of course, and as discussed 

elsewhere, OSHA enforcement targeting 

based on the data submitted as a result 

of this final rule will be conducted in 

accordance with a neutral-based scheme 

for identifying workplaces for closer 

inspection. 

OSHA disagrees with IBWA’s 

comment that the collected injury and 

illness data the agency intends to use for 

its enforcement inspection and 

compliance assistance targeting is stale. 

OSHA acknowledges that the Forms 300 

and 301 data are based on injuries and 

illnesses that occurred during the 

previous calendar year. However, 

OSHA’s current SST inspection 

targeting program is also based on Form 

300A summary data from the previous 

calendar year. Even though the injuries 

and illnesses occurred during the 

previous calendar year, the information 

is helpful to OSHA in determining 

whether a hazard is an ongoing problem 

at a specific establishment. For example, 

although a heat-related illness may have 

occurred more than six months before 

the submission deadline, it may be 

reasonable for OSHA to conclude that 

multiple entries of this illness on the 

OSHA forms represent an ongoing 

hazard at that establishment. In 

addition, research indicates that high 

injury and illness rates are persistent 

over time until there is some type of 

safety and health intervention at the 

facility (see Evaluation of OSHA’s 

Impact on Workplace Injuries and 

Illnesses in Manufacturing Using 

Establishment-Specific Targeting of 

Interventions: Programmed Inspections 

and High Hazard Notification Letters, 

FINAL REPORT. Prepared by: ERG, 

Lexington, MA, July 16, 2004 (Docket ID 

0098)). By identifying an establishment 

with ongoing hazards, the agency has 

the opportunity to use its enforcement 

and compliance assistance resources to 

conduct an intervention and improve 

workplace safety and health. 

b. Beneficial Ways That OSHA Can Use 

the Data From Forms 300 and 301 

OSHA expects to use the collected 

data in many ways to improve worker 

safety and health. Most importantly, 

having this information will provide 

OSHA with a much fuller and more 

detailed understanding of the kinds of 

injuries and illnesses experienced by 

workers doing different jobs in a range 

of industries. 

The data available from the 300A 

forms currently collected by OSHA 

show primarily only how many 

‘‘injuries’’ and ‘‘illnesses’’ occur. (The 

300A ITA data also provide information 

on the number of cases of illnesses 

involving hearing loss, poisonings, skin 

disorders, and respiratory disorders, but 

even for those, knowing that they 

occurred at a particular workplace 

provides little if any useful information 

about how the workers developed 

them.) The data provide no meaningful 

information about the kinds of injuries 

or illnesses suffered by workers, the 

kind of work they do, or the hazards 

present at their workplaces. The 

establishment-wide scope of the 300A 

data currently available to OSHA also 

tends to obscure particular types of 

injuries and illnesses that may affect 

only certain classes of workers at large 

establishments. For example, nursing 

aides at hospitals may be exposed to 

very different hazards than those facing 

other hospital staff who do not perform 

the same kind of physical work. Yet, 

looking at hospital-wide generalized 

data will give no hint of the 

circumstances giving rise to particular 

exposures or which workers are 

affected. 

By having access to more precise 

information about the kinds of injuries 

and illnesses affecting workers 

performing different kinds of operations 

at different kinds of workplaces, OSHA 

can deploy its resources in ways more 

calculated to address the specific 

hazards that actually exist in specific 

workplaces. It is obvious that the broad 

categories of ‘‘injury’’ and ‘‘illness’’ 

provide little useful information about 

the specific kinds of hazards that exist 

at a workplace. And even a narrower 

category of illness like ‘‘respiratory 

conditions’’ does not indicate whether 

the respiratory condition is related to a 

chemical exposure, COVID–19, valley 

fever (coccidioidomycosis), hantavirus, 

Legionnaires’ disease (Legionellosis), or 

tuberculosis. In contrast, the collection 

and analysis of case-specific data from 

the Forms 300 and 301 would allow 

OSHA to determine the prevalence of 

particular respiratory hazards and 

respond appropriately, whether that 

response is in the form of targeted 

enforcement efforts or compliance 

assistance, general guidance materials or 

regulatory solutions, or cooperation 

with local public health authorities. 

Having access to case-specific data 

will also allow OSHA to determine 

whether workers in particular 

demographics are being sickened or 

injured disproportionately. These may 

be younger or older workers, temporary 

workers, or workers new to a particular 

assignment. If OSHA has this 

information, it will be able to develop 

strategies to address the particular 

demographic factors that lead to these 

disproportionate outcomes. 

Many of the comments questioning 

the utility of the data for OSHA seemed 

to be premised on the erroneous belief 

that OSHA’s primary use of the data 

would be to target enforcement efforts at 

workplaces with higher injury and 

illness rates. But the utility of casespecific data is much broader. While the 

data certainly can be used to help target 

enforcement, as well as compliance 

assistance efforts, it is also valuable to 

OSHA in that it allows for the types of 

analyses that can make all of OSHA’s 

work more effective. 

As noted above, OSHA can analyze 

the data to identify the specific 

conditions that are injuring workers as 

well as the specific classes of workers 

who are being injured. OSHA can 

identify trends in the types of injuries 

and illnesses that are occurring and, as 

noted by the AFL–CIO, the agency can 

identify and assess emerging hazards 

(Docket ID 0061). Being able to make 

these identifications allows OSHA to 

promote safer workplaces in myriad 

ways. OSHA can disseminate 

information about trends in injuries and 

illnesses and emerging hazards to the 

public so that both workers and 

employers can take steps to prevent 

similar injuries and illnesses at their 

own facilities. For example, the AFL– 

CIO noted that the data could have been 

utilized in the first years of the COVID– 

19 pandemic to identify where effective 

mitigation measures were necessary to 

reduce exposures, and could have been 

incorporated into agency guidance, 

enforceable standards, and enforcement 

initiatives, and used to inform employer 

and union COVID–19 safety plans 

(Docket ID 0061). OSHA can also 

prioritize use of its own limited 

resources to have the greatest impact. 

This may mean providing more useful 

compliance assistance or guidance, 

considering development of new 

standards, or revising enforcement 

programs to focus on workplaces where 

OSHA has determined that hazards are 

more likely to be found. As noted by the 

Laborers’ Health and Safety Fund of 

North America, this also means that 

OSHA can ‘‘become more data driven in 

its compliance and enforcement efforts’’ 

and, ‘‘[i]n being a more online and 

easily accessible agency, OSHA can 

push its consulting efforts and services’’ 

(Docket ID 0080). 

One example of how OSHA can use 

the information in Forms 300 and 301 

relates to OSHA’s efforts to address 

indoor and outdoor heat-related 

hazards. As climate change has 

accelerated, heat hazards have become 


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more prevalent, sickening and killing 

more workers every year (see https://

www.osha.gov/sites/default/files/ 

enforcement/directives/CPL_03-00- 

024.pdf). OSHA’s efforts to address 

these hazards are multi-pronged, with 

ongoing enforcement, compliance 

assistance, and guidance efforts, as well 

as a regulatory component. Without 

case-specific injury and illness data, 

OSHA’s understanding of the scope of 

the problem and its ability to identify 

specific operations and types of 

establishments where workers are most 

at risk, are limited, impeding its ability 

to intervene at an early enough stage to 

prevent worker illnesses and deaths. 

Currently, OSHA most often learns of 

these hazards after an employer reports 

a worker hospitalization or death 

(pursuant to 29 CFR 1904.39). The Form 

300A listing of the number of illnesses 

at various establishments gives no sense 

of how many of those illnesses are heatrelated. In contrast, Forms 300 and 301 

data will allow OSHA to identify 

patterns and trends in the occurrence of 

heat-related illness, and not only focus 

its enforcement and compliance 

assistance resources appropriately, but 

also inform OSHA’s efforts to develop a 

permanent standard addressing heat 

hazards. These types of longer-term 

strategic activities can help make OSHA 

a more effective agency overall, and in 

doing so, make all workers safer. 

c. Beneficial Ways That Employers Can 

Use the Data From Forms 300 and 301 

In the preamble to the proposed rule, 

OSHA asked, ‘‘What are some ways that 

employers could use the collected data 

to improve the safety and health of their 

workplaces?’’ Multiple commenters 

provided comments on employers’ use 

of the collected data to improve the 

safety and health of their workplaces, 

including information about 

benchmarking and incentives. (Docket 

IDs 0030, 0035, 0046, 0061, 0063, 0093). 

For example, AIHA commented, 

‘‘Benchmarking against other employers 

is an important management tool for 

understanding and improving 

occupational safety and health 

programs’’ (Docket ID 0030). Similarly, 

the AFL–CIO commented that the 

collected data would provide employers 

direct access to detailed injury and 

illness information to compare their 

injury and illness records and 

experience with others in the same 

industry (Docket ID 0061). NIOSH made 

similar comments and added that, 

currently, employers may compare their 

injury rates to those of their industry as 

reported in the SOII, but because of the 

large number of injury and illness 

records that will be collected under this 

rulemaking, employers will be able to 

compare their injury and illness rates to 

those of many more specific groups of 

establishments and employers. This 

commenter also stated, ‘‘Benchmarking 

safety performance to more comparable 

establishments and employers instead of 

large, anonymous aggregates would 

provide more accurate as well as more 

compelling metrics for guiding and 

motivating improvement of safety 

programs’’ (Docket ID 0035). 

More generally, the Sheet Metal and 

Air Conditioning National Association 

(SMACNA) commented, ‘‘SMACNA 

members believe that any additional 

data that is collected should be used in 

tandem with Bureau of Labor Statistics 

(BLS) data so our industry can better 

understand loss trends and use the 

information accordingly. SMACNA 

members provide a unique service and 

would like the data to be broken down 

by the specific North American Industry 

Classification System (NACIS) codes. 

Such as detailed OSHA incident rate 

information for NACIS code 238220— 

Plumbing, Heating, and AirConditioning Contractors.’’ (Docket ID 

0046). 

Additionally, Worksafe commented 

that access to more electronic data will 

allow businesses to compare their safety 

performance to other firms and enable 

competition for improved safety. Also, 

this commenter explained that 

suppliers, contractors, and purchasers of 

a firm’s goods or services could also 

consider the information in their 

business decisions, such as whether to 

support a business with a poor safety 

record. In addition, regarding the issue 

of incentives for employers, this 

commenter stated, ‘‘When employers 

know that injury or illness incidents 

will be published online, the risk of 

social stigma will encourage them to 

take appropriate precautions and avoid 

violations’’ (Docket ID 0063). 

Similarly, Public Citizen commented, 

‘‘Bringing performance information out 

into the open is an effective form of 

behavioral economics impacting 

employer decision-making. It serves as a 

strong incentive for employers to 

improve their safety records and 

support their reputations. It would 

encourage employers to implement 

systems, protocols, education and 

workplace alterations, resulting in less 

worker injuries and illnesses. Employers 

can also use establishment-specific, 

case-specific injury and illness 

information to compare their safety 

record to similar establishments and set 

benchmarks for improvement of their 

own safety and health performance. 

Negative publicity has been shown to 

improve not just the behavior of the 

highlighted employer, but also other 

employers. This general deterrence 

effect has been demonstrated by 

improved compliance with safety 

standards by employers after OSHA 

issued press releases on OSHA 

violations uncovered during 

inspections. The impact was so 

powerful that press releases led to 73 

percent fewer safety violations 

identified during programmed 

inspections at neighboring enterprises 

and a drop in injury reports from the 

same enterprises.’’ (Docket ID 0093). 

On the other hand, several 

commenters stated that employers 

would not be able to use the collected 

data to improve the safety and health of 

their workplaces (Docket IDs 0086, 

0090, 0094). For example, the Plastics 

Industry Association commented, ‘‘The 

rule will not assist employers in 

managing workplace safety as it does 

not provide information that is not 

already available to them and their 

employees. When companies publish 

incident reports internal to all 

employees, all personal information is 

removed, and no medical information is 

provided.’’ This commenter also stated 

that companies track different types of 

information and that some companies 

already benchmark with others (Docket 

ID 0086). 

The Phylmar Regulatory Roundtable 

OSH Forum also commented that there 

is already benchmarking by employers, 

saying, ‘‘Many employers, such as PRR 

members are part of trade organizations 

and already participate in formal 

benchmarking on injury and illness 

data. PRR members also review BLS 

data. Therefore, we believe that OSHA’s 

posting of establishment specific data 

will be of NO additional benefit to the 

resources already available to employers 

who actively pursue these methods.’’ 

(Docket ID 0094). 

In addition, a few commenters stated 

that the data would harm employers. 

For example, Angela Rodriguez 

commented, ‘‘There is a perceived risk 

of business competitors using the 

establishment-level data to gain an 

advantage by comparing/contrasting 

results in a negative context. E.g., 

‘Company X lets their employees get 

seriously injured 3x more than us’ ’’ 

(Docket ID 0052). Similarly, the 

National Retail Federation commented, 

‘‘Given President Biden’s expressed 

desire to lead the ‘‘most pro-union 

Administration in American history,’’ it 

is likely that the true motivation of this 

rulemaking is to weaponize injury and 

illness data for labor union leaders’ 

benefit. Labor unions will likely use this 

data to gain support for their organizing 

efforts, claiming the data proves an 


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employer is not protecting its workers.’’ 

(Docket ID 0090). This commenter also 

stated that unions may use the data to 

pressure employers in negotiations over 

collective bargaining agreements, and 

competitors may use the information for 

anticompetitive purposes, such as 

poaching top workers or hurting the 

reporting entity’s standing in the 

community (Docket ID 0090). Likewise, 

the Phylmar Regulatory Roundtable 

OSH forum commented, ‘‘This type of 

risk profile and data tool could also be 

used by insurance companies when 

determining policies and rates for a 

company’s worker compensation 

insurance plan. In addition, an 

insurance company could use the risk 

profile and data tool to deny issuance of 

disability, long-term, and other types of 

insurance.’’ (Docket ID 0094). 

In response, OSHA agrees with 

commenters who stated that employers 

will be able to use the published 

establishment-specific, case-specific, 

injury and illness data to improve their 

workplace safety and health. 

Specifically, employers will be able to 

use the data to compare case-specific 

injury and illness data at their 

establishment with that of comparable 

establishments and set safety and health 

goals benchmarked to the 

establishments they consider most 

comparable. OSHA also plans to include 

information regarding establishments’ 

NAICS codes. As SMACNA suggests, 

interested parties can use that 

information to better understand loss 

trends, which will help them make 

improvements in worker safety and 

health. 

Since employers will have access to a 

much larger data set, OSHA disagrees 

with commenters who suggested that 

employers already have access to 

enough information from trade 

associations to conduct benchmarking 

with injury and illness data. OSHA 

notes that employers will be able to 

access data from the entire range of 

establishments covered by the electronic 

submission requirements in this final 

rule. Thus, employers will have the 

opportunity to compare and benchmark 

their injury and illness data with not 

only the safest establishments in their 

industry, but with the safest 

establishments in all industries covered 

by the final rule. In addition, OSHA 

anticipates that employers will be able 

to review the establishment-specific 

injury and illness data, identify safer 

establishments in their industry, and 

potentially develop and establish 

similarly effective safety and health 

programs at their own facilities. 

OSHA also agrees with commenters 

who stated that the publication of 

establishment-specific, case-specific, 

injury and illness data will incentivize 

employers to minimize the number of 

occupational injuries and illnesses at 

their workplace. For example, the 

publication of the data will encourage 

potential customers or business partners 

to evaluate the full range of injury and 

illness cases at a specific establishment. 

In turn, employers will work to improve 

the occupational safety and health at 

their facility, which will result in 

reduced work-related injuries and 

illnesses, thereby enhancing the 

employer’s standing with potential 

customers and business partners. 

In addition, OSHA disagrees with 

commenters who stated that the 

collection and publication of 

establishment-specific, case-specific, 

injury and illness data will harm 

employers or that labor unions will 

‘‘weaponize’’ the data. Again, as noted 

above, the only purpose for the 

collection and publication of injury and 

illness data required by this final rule is 

to improve occupational safety and 

health and to reduce injuries and 

illnesses to workers. At the same time, 

OSHA considers the publication of an 

establishment’s injury and illness data, 

which can be a valid measure of a 

company’s overall safety culture, to be 

an effective incentive for employers to 

improve occupational safety and health. 

As a result, OSHA concludes that the 

collection and publication of this data 

will encourage employers with more 

hazardous workplaces to make 

improvements in safety and health to 

reduce the number of occupational 

injuries and illnesses at their 

workplaces. Such changes will also be 

of benefit to employers, in that 

workplace illnesses and injuries impose 

costs on employers beyond the cost to 

the injured or ill employee. 

In response to the Phylmar Group’s 

comment that insurance companies may 

use the collected data to calculate 

insurance rates or deny insurance 

coverage to companies based on the 

data, OSHA notes that insurance 

companies could engage in these 

practices using the 300A data OSHA has 

been collecting and publishing for 

several years now if they wanted to. The 

Phylmar Group does not identify any 

reason why the collection of data from 

Forms 300 and 301 would make these 

practices more likely or widespread, nor 

does it provide any evidence that 

insurance companies are or are not 

already doing this. Moreover, the 

possibility that insurance companies 

may raise rates or deny insurance 

coverage based on an employer’s higherthan-average rates of occupational 

injuries and illnesses would provide 

further incentive for employers to 

improve workplace safety and health at 

their establishments. 

Finally, and as discussed below, 

access to the collected data will improve 

the workings of the labor market by 

providing more complete information to 

job seekers. Using data newly accessible 

under this final rule, potential 

employees will be able to examine casespecific information to help them make 

more informed decisions about future 

employment and, in turn, could 

encourage employers to make 

improvements in workplace safety and 

health in order to attract potential 

employees. In addition, this would help 

address the problem of information 

asymmetry in the labor market, where 

the businesses with the greatest 

problems have the lowest incentive to 

self-disclose. 

Accordingly, after consideration of 

the rulemaking record, OSHA has 

determined that employers will be able 

to use the collected and published data 

to improve workplace safety and health 

and reduce occupational injuries and 

illnesses. 

d. Beneficial Ways That Employees Can 

Use the Data From Forms 300 and 301 

In the preamble to the proposed rule, 

OSHA asked ‘‘What are some ways that 

employees could use the collected data 

to improve the safety and health of their 

workplaces?’’ 87 FR 18547. 

OSHA received many comments on 

how employees will benefit from 

increased access to information from the 

300 and 301 forms and on how 

employees will use the collected data to 

improve safety and health at their 

workplaces. Several commenters 

provided information on how 

employees will generally be able to use 

the collected data from Forms 300 and 

301 (Docket IDs 0035, 0061, 0063, 0065, 

0066, 0078). For example, AIHA 

commented, ‘‘Under a Total Worker 

Health model, injury data about specific 

tasks, operations, job titles, and 

industries could be used for worker 

training and education’’ (Docket ID 

0030). Similarly, NIOSH commented, 

‘‘While the BLS Annual Survey data 

provide good metrics for injury risks by 

industry, they are not ideal for engaging 

workers and helping them to 

understand the risks that they may face 

in their own jobs.’’ This commenter also 

explained that the narrative casespecific data that would be collected 

under the rule could provide employees 

with concrete, real-world, accounts on 

how injuries and illnesses occur and 

instruct them on how they can be 

prevented (Docket ID 0035). The AFL– 


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CIO submitted similar comments 

(Docket ID 0061). 

The National Nurses Union 

commented, ‘‘Public posting of this data 

would enable workers and their 

representatives to better understand the 

scope of injuries and illnesses in 

particular work sites and to do so in a 

more timely and efficient manner. 

While workers and their representatives 

can access logs at their own workplace, 

they currently cannot compare those 

logs to other workplaces in the industry. 

For nurses, patterns of injury and illness 

could be identified, compliance with 

existing standards could be more 

efficiently examined, and emerging 

occupational risks could be better 

evaluated. When action to correct 

workplace safety and health hazards is 

inefficient or delayed, workers are 

unnecessarily exposed to predictable 

and preventable hazards. Delays in 

correcting a workplace hazard 

pointlessly cost the lives, limbs, and 

livelihoods of NNU members and other 

workers.’’ (Docket ID 0064). 

Additionally, Worksafe commented 

that unions and worker advocacy groups 

will be able to use case-specific 

information to seek safety 

improvements, ‘‘Currently, these groups 

can access Form 300 logs only by 

requesting them from employers, and 

the information may be provided in an 

inefficient manner such as in PDF files 

or on paper. As detailed below, unions 

and worker advocacy groups have the 

expertise to analyze this information to 

identify necessary workplace fixes. 

Electronic publication of more granular 

data will make it possible for them to 

better identify the cause of worker 

injuries and illnesses, more efficiently 

analyze large quantities of information, 

and appropriately direct their efforts.’’ 

(Docket ID 0063). Worksafe also 

provided several examples of how 

establishment-specific, case-specific, 

injury and illness data has been used by 

employees and their representatives to 

reduce workplace injuries and illnesses. 

For example, it included a narrative 

from a meatpacking labor organization:, 

‘‘In 2008, leaders from the UFCW Tyson 

meatpacking locals union accessed 

Form 300 logs collected from one 

meatpacking plant for a one-month 

period. They analyzed injuries that 

could be related to ergonomic hazards 

and then placed red ‘‘sticky dots’’ on a 

hand-drawn map of a human body, 

depicting injury areas. The resulting 

body map looked as though the hands 

were dripping blood because so many 

red dots were placed in that area. The 

leaders were able to confirm that, 

despite known under-reporting, a lot of 

hand-specific injuries occurred amongst 

their members. The leaders later 

presented the body map in a meeting 

with Tyson management, where it 

became a powerful tool. This meeting 

included an individual who had been in 

charge of the company’s ergonomics 

program some years earlier and who had 

recently returned as a top-level 

manager. Seeing the map, he agreed 

with the union to start a series of efforts 

to revitalize the ergonomics program.’’ 

(Docket ID 0063). 

In contrast, some commenters stated 

that the collection and publication of 

certain data from Forms 300 and 301 

could potentially harm employees, 

including harm to employee privacy 

and employability. For example, R. 

Savage commented, ‘‘I have concerns 

with organizations uploading their 

OSHA Forms 300 and 301 because both 

forms contain identifiable personal 

information. My concern is the privacy 

of the injured employee. Government 

agencies have accidentally released 

personal information in the past. 

Removing the employee’s name in 

OSHA form 300 and removing sections 

1–9 of OSHA form 301 does not 

guarantee that the employee will not be 

identifiable.’’ (Docket ID 0018). Also, an 

anonymous commenter stated, ‘‘This 

would seem to make employees feel like 

they need to share even more private 

information to their employers than 

they already do’’ (Docket ID 0044). 

However, this last comment seems to be 

based on a misunderstanding. This 

rulemaking does not amend the type of 

information that employers must enter 

on their recordkeeping forms, nor does 

it amend the recordkeeping forms used 

to track injuries and illnesses. Instead, 

this rulemaking addresses the electronic 

submission to OSHA of certain 

information on the recordkeeping forms 

that employers are already required to 

keep. 

In response to the comments above, 

OSHA agrees that employees will be 

able to use the collected and published 

data from Forms 300 and 301 to 

improve workplace safety and health. 

The collection and subsequent 

publication of this data will allow 

employees to analyze injury and illness 

data that is not currently available. The 

online availability of such data will 

allow employees to compare their own 

workplaces to other workplaces in their 

industries. Also, with access to 

establishment-specific, case-specific 

data, employees will be better able to 

identify emerging injury and illness 

trends in their industries and push for 

changes in safety and health policies to 

better protect workers. In addition, 

employees and their representatives will 

be able to use the large amount of newly 

available case-specific information to 

develop effective education and training 

programs to identify and reduce 

workplace hazards. 

With regard to the comments 

expressing concern about employee 

privacy, as discussed elsewhere, OSHA 

is confident that the agency will be able 

to protect information that could 

reasonably be expected to identify 

individuals directly. The combination of 

not requiring employers to submit 

certain information, and the improved 

technology used to identify and remove 

personal information in the collected 

data, greatly reduces the risk that 

reasonably identifiable employee 

information will be disclosed to the 

public. Again, OSHA believes the 

significant benefits to improved 

workplace safety and health outweigh 

the slight risk of information that could 

reasonably be expected to identify 

individuals directly being disclosed to 

the public. 

Other commenters stated that, 

currently, employees and their 

representatives only have online access 

to general data from the Form 300A or 

aggregate data from the BLS SOII 

(Docket IDs 0063, 0078). Worksafe 

commented, ‘‘electronic publication of 

case-specific information on injuries, 

illnesses, and even fatalities will allow 

firms’ own employees to access timely 

information that they can use to 

improve their own workplaces’’ (Docket 

ID 0063). Also, Unidos US, Farmworker 

Justice, and Texas RioGrande Legal Aid 

commented that, using currently 

available BLS data, it is impossible to 

know how many farmworkers 

specifically suffer from heat-related 

illnesses. These commenters explained 

that with access to case-specific Forms 

300 and 301 data, employees and their 

representatives will be able to search 

information online to identify specific 

workplace hazards and direct their 

resources to those hazards (Docket ID 

0078). 

On the other hand, some commenters 

stated that employees already have 

access to the information they need. The 

National Propane Gas Association 

commented, ‘‘Potential employees or 

the general public can assess an entire 

industry through the Bureau of Labor 

Statistics data that OSHA referred to in 

the proposal’’ (Docket ID 0050). 

In response, OSHA disagrees with the 

National Propane Gas Association that 

potential employees only need access 

the aggregate industry information 

though the SOII. As discussed above, 

aggregate data from the SOII, as well as 

the general summary data from the 

Form 300A, do not provide employees 

with access to case-specific information 


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at individual establishments. As 

explained by other commenters, online 

access to the establishment-specific, 

case-specific, injury and illness data 

will allow employees to search and 

identify other establishments and 

occupations in their industries and 

compare the injury and illness data at 

their establishments with the safest 

workplaces. Also, both current and 

potential employees will have better 

access to health and safety information 

about specific occupations and 

workplaces and will be able to better 

identify and understand the specific 

risks they face in their own jobs. 

Importantly, and as noted by 

commenters, access to Forms 300 and 

301 data will enable employees to track 

specific injuries and illnesses, such as 

heat-related illnesses, throughout their 

industries. 

Some commenters stated that, even 

though employees have a right of access 

to the OSHA recordkeeping forms under 

29 CFR 1904.35, some workers may fear 

retaliation from their employer if they 

request access to information from the 

300 and 301 forms at their workplace 

(e.g., Docket IDs 0049, 0061, 0063, 0089, 

0093). National COSH commented, 

‘‘Making the case specific data publicly 

available as proposed in the standard 

will also increase worker safety for the 

employees in the establishments with 

100 or more employees. Workers are too 

often scared of retaliation if they request 

this information, even though 

employers are required to provide 

access to the full 300 logs to employees 

upon request. This information will 

allow employees in these 

establishments access to this data 

without fear of retribution and it will 

help them better identify patterns of 

injuries and hazards and to take actions 

to have the hazards abated.’’ (Docket ID 

0048). NELP submitted a similar 

comment (Docket ID 0049). 

Additionally, Centro del Derecho del 

Migrante commented, ‘‘Public access to 

these data will also improve worker 

safety by allowing workers and their 

advocates to better identify patterns of 

injuries and hazards in workplaces and 

across industries . . . Publishing this 

information will allow employees in 

these establishments access to this data 

without fear of retribution, and to 

demand abatement of hazards in their 

own workplaces and industries.’’ 

(Docket ID 0089). 

There were also comments stating 

that, despite the access requirements in 

29 CFR 1904.35, many employers either 

deny or delay access to case-specific 

information to employees and their 

representatives. The United Food and 

Commercial Workers Union (UFCW) 

commented, ‘‘The public access 

provisions of this rule allow workers to 

get important information through the 

OSHA website, rather than navigate 

these hurdles with employers’’ (Docket 

ID 0066). UCFW added that it has had 

success in monitoring injury and illness 

data and working with employers to 

apply the data to injury and illness 

prevention efforts, but noted that 

workers in non-union workplaces do 

not have the same ability to access the 

data, and that this rule would help 

‘‘bridge that gap’’ by providing all 

workers with access (Docket ID 0066). 

Another commenter explained that, 

even when injury and illness 

information is provided to employees, 

the information is not in a usable 

format. The Strategic Organizing Center 

commented that, even when workers 

request access to part 1904 information, 

‘‘they do not have any specific right to 

receive them in a way which achieves 

the goal of facilitating the analysis. This 

is especially important for workers at 

the larger employers covered by the 

proposed reporting requirement for the 

300/301 data’’ (Docket ID 0079). 

In response, and as discussed above, 

OSHA’s recordkeeping regulation at 29 

CFR 1904.35 already provides 

employees and their representatives 

with access to the three OSHA 

recordkeeping forms kept by their 

employers, with some limitations. 

Under § 1904.35, when an employee, 

former employee, or employee 

representative requests access to certain 

information on Forms 300 or 301, the 

employer must provide the requester 

with one free copy of the information by 

the end of the next business day. Any 

delay or obstruction by an employer in 

providing the required information to 

employees or their representatives 

would be a violation of the 

recordkeeping regulation. And, 

retaliation against an employee for 

requesting this information would 

violate Section 11(c) of the OSH Act. 

OSHA agrees with commenters who 

stated that making establishmentspecific, case-specific, injury and illness 

information available online will 

enhance worker safety and health, 

particularly where employees are 

reluctant to request access to such 

information. If workers fear possible 

retaliation from their employer, 

employees will easily be able to access 

the case-specific data for their own 

workplace online, thus avoiding the 

need to request the information from 

their employer. This uninhibited access 

will allow employees to better identify 

and address hazards within their own 

workplaces. 

In addition, since certain case-specific 

injury and illness data will be posted 

online, employees will easily be able to 

search the collected information to 

identify specific hazards at their 

workplaces. Online posting also 

eliminates the problem noted by some 

commenters that, in some cases, when 

employees request injury and illness 

information from their employer, the 

information is provided on paper or in 

a format that is not searchable. Also, the 

online posting of data allows employees 

to conduct searches at any time to 

identify injury and illness trends at their 

workplaces. 

Public Citizen commented, 

‘‘[P]otential employees will benefit from 

the availability of injury and illness data 

from establishments as they make 

informed decisions about employment. 

Workers can compare injury rates 

between potential employers and 

choose to work for the safer employer. 

This puts power in the hands of labor, 

incentivizing employers to improve 

safety given the competition for 

workers.’’ (Docket ID 0093). 

On the other hand, the Phylmar 

Regulatory Roundtable OSH Forum 

expressed concern that the Form 300 

and 301 data could be used to build 

worker profiles that result in hiring 

decisions based on an employee’s injury 

and illness history and a high number 

of days away from work (Docket ID 

0094). Similarly, Brian Evans 

commented, ‘‘Since this data is public 

record, future employers would have 

access to this information and could 

potentially discriminated against future 

hires based on injured parties being 

listed in a work place related injury. It 

could also lead to retaliation if the 

employee who was injured on the job 

choses to stay employed in their current 

role. Leadership, management, 

administration could view them as 

unsafe employees and limit their growth 

potential at their organization, or seek 

ways to terminate their employment due 

to the filing of a work place injury.’’ 

(Docket ID 0080). 

In response, OSHA agrees with the 

comment from Public Citizen that the 

published Form 300 and 301 data will 

assist potential employees in 

researching establishments where the 

risk to workers’ safety and health is low. 

At this time, potential employees only 

have access to the limited injury and 

illness data that is currently available to 

the public as discussed above. Access to 

Form 300 and 301 data not only 

provides job seekers with an 

opportunity to review information about 

individual workplaces, but also allows 

them to analyze the injury and illness 

history of specific job titles within a 


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given industry or workplace. Potential 

employees can also identify trends 

among and between occupations, and at 

specific sites within one workplace. 

Also, as noted by Public Citizen, access 

to this information by potential 

employees should provide an incentive 

to employers to improve workplace 

safety and health. Specifically, the 

publication of Form 300 and 301 data 

will encourage employers with more 

hazardous workplaces in a given 

industry to make improvements in 

workplace safety and health to prevent 

injuries and illnesses from occurring, 

because potential employees, especially 

the ones whose skills are more in 

demand, might be reluctant to work at 

more hazardous establishments. OSHA 

disagrees that employers will use the 

published data from this final rule to 

discriminate against current or potential 

employees. With regard to potential 

employees, and as discussed in more 

detail in Sections III.B.6 and III.D of this 

Summary and Explanation, because 

OSHA is not requiring the electronic 

submission of information that could 

reasonably be expected to identify 

individuals directly (e.g., name, contact 

information), and because the agency is 

using improved technology to identify 

and redact such information before 

publication, it is extremely unlikely that 

employers will be able to use the 

published data to identify specific 

individuals and determine their injury 

and illness history. As for current 

employees, OSHA notes that employers 

are already required under part 1904 to 

include certain potentially identifiable 

information about an employee when 

they sustain a work-related injury or 

illness (e.g., employers must enter the 

injured or ill employee’s name on the 

OSHA 300 log). As a result, the 

publication of case-specific deidentified injury and illness data under 

this final rule will have no impact on an 

employer’s ability to identify their own 

injured or ill employees. 

After consideration of these 

comments, OSHA has determined that 

employees, potential employees, and 

employee representatives will be able to 

use the collected data from Forms 300 

and 301 to improve workplace safety 

and health, including through better 

access to the data in usable formats and 

without fear of retaliation. OSHA notes 

the many examples in the rulemaking 

record provided by commenters on not 

only how employees and their 

representatives currently use 

establishment-specific, case-specific, 

injury and illness data, but also on how 

they will be able to use the greater 

access to such information provided by 

this final rule to reduce occupational 

injuries and illnesses. 

e. Beneficial Ways That Federal and 

State Agencies Can Use the Data From 

Forms 300 and 301 

OSHA received a number of 

comments in response to the question in 

the NPRM about the ways in which 

Federal (besides Federal OSHA, which 

is addressed above) and State agencies 

will be able to use the data collected 

under this final rule to improve 

workplace safety and health. Multiple 

commenters, including the National 

Employment Law Project, the Centro de 

los Derechos del Migrante, and Richard 

Rabin, noted generally that the 

centralized collection of and access to 

case-specific data will benefit the 

worker safety and health efforts of 

NIOSH, State agencies, and the public 

health community (e.g., Docket IDs 

0040, 0045, 0048, 0049, 0051, 0064, 

0084, 0089). AIHA stated that ‘‘With the 

limited resources available to most 

federal and state worker health and 

safety programs, targeted programs will 

provide the most benefit for workers 

and companies. These data will provide 

information so that priorities can be set 

and outcome trends monitored’’ (Docket 

ID 0030). 

There were also comments from 

Federal entities about their intended 

uses of the data. For example, NIOSH 

commented, ‘‘As potential end users of 

the data, NIOSH supports the 

improvements that are being proposed 

by OSHA. NIOSH believes that the 

increased coverage of employers within 

identified industries and the collection 

of the additional detailed information 

that is not currently electronically 

captured will offer greater potential for 

detailed and comprehensive data 

analyses compared with the current 

data. NIOSH uses occupational injury 

data to monitor injury trends, identify 

emerging areas of concern, and propose 

research intervention strategies and 

programs. Current OSHA data reflect a 

smaller proportion of select industries 

and offer limited details. This new rule 

would offer greater coverage of select 

industries and more detailed data, 

which would increase the value and 

utility of these occupational injury data 

to NIOSH.’’ (Docket ID 0035, 

Attachment 2; see also Docket ID 0089). 

In addition, NIOSH’s comment listed 

more specific purposes for which it can 

use the collected data, including: 

• Using the narrative data from Forms 

300 and 301 for learning the particular 

ways in which injuries occur in specific 

work tasks and industries (citing work 

NIOSH has done with narrative data 

from individual workers’ compensation 

claims in Ohio). 

• Using the coded OSHA Log case 

data with narratives as a very large 

training data set that could be used to 

improve the autocoding of workers’ 

compensation claims. As NIOSH stated, 

‘‘[a]utocoding workers’ compensation 

claim narratives is critical to producing 

injury rate statistics that can guide 

prevention efforts by identifying high 

and increasing rates of specific types of 

injuries in specific industries and 

employers.’’ 

• Improving the effectiveness and 

efficiency of workplace inspections 

through the evaluation of more 

complete, detailed data on certain types 

of injuries at specific workplaces. As an 

example, NIOSH noted a series of 

studies supported by NIOSH where 

amputation cases at specific workplaces 

were identified based on hospital 

records and workers’ compensation 

claims; the information was then 

provided to Michigan OSHA, which 

used it to target inspections. 

• Linking workers’ compensation 

data to OSHA logs in order to provide 

a more complete set of information than 

either data set provides separately. This 

effort has the potential to improve 

identification and prevention of 

injuries, especially among temporary 

employment agency workers, who 

constitute a vulnerable population of 

workers with a disproportionate burden 

of workplace injuries. 

• Collaborating with National 

Occupational Research Agenda Councils 

and OSHA to ‘‘improve dissemination 

and use of the published data to 

improve identification, mitigation, and 

prevention of workplace injuries and 

illnesses’’ (Docket ID 0035, Attachment 

2). 

National COSH agreed with NIOSH, 

noting that making these data publicly 

available will assure that researchers 

and other agencies, like NIOSH, can use 

the data for surveillance, evaluation, 

and research purposes (Docket ID 0048). 

In addition to the benefits of the data 

at the Federal level, multiple 

commenters addressed the value of the 

final rule’s data collections to the States 

and to State occupational safety and 

health efforts. In the preamble to the 

2019 final rule, OSHA acknowledged 

‘‘that systems to collect this volume of 

data would be costly for States to 

implement. Centralized collection might 

be more efficient and cost-effective than 

state-by-state collection . . .’’ At that 

time, OSHA stated that it had ‘‘doubts 

about the usefulness of the data and 

concerns about the costs of collection,’’ 

but reiterated that States were 

nonetheless ‘‘empowered to do as 


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6The OSHA Integrated Management Information 

System (IMIS) was designed in 1991 as an 

information resource for in-house use by OSHA 

staff and management, and by State agencies which 

carry out federally approved OSHA programs. It 

was replaced by the OSHA Information System 

(OIS) as the primary repository of OSHA’s data, 

starting in 2012. 

OSHA ha[d] and weigh the substantial 

costs of collection against the likely 

utility of the data’’ (84 FR 394). In 

response to the NPRM in the current 

rulemaking, many commenters made it 

clear that State efforts to improve 

workplace safety and health will benefit 

from the data that is made available by 

this rule, and that a national collection 

system is a far more efficient means of 

achieving these benefits than individual 

State efforts. National COSH noted 

similar benefits at the State level as at 

the Federal level, stating that State and 

community public health agencies will 

be able to use the data to better 

understand the hazards in high-risk 

establishments and then target those 

establishments for assistance and 

information regarding best practices 

(Docket ID 0048). Likewise, the Council 

of State and Territorial Epidemiologists 

(CSTE) commented, ‘‘Access to these 

data would also facilitate public health 

agency efforts to reduce work-related 

injuries and illnesses in the States and 

significantly increase the potential for 

more timely identification of emerging 

hazards. Electronic collection of existing 

records is in line with 21st century 

advances in health data collection made 

possible by advances in information 

technology that involve centralized 

collection, analysis, and dissemination 

of existing data from multiple entities. 

These include, for example, collection 

at the State level of data on all 

hospitalizations, all emergency room 

visits, and all ambulance runs, and in 

over 20 States, data on all public and 

private insurance claims (excluding 

workers’ compensation claim 

data). . . . Making this information 

broadly available is consistent with the 

growing recognition, predominant in the 

patient safety field, that transparency— 

sharing of information, including 

information about hazards—is a critical 

aspect of safety culture.’’ (Docket ID 

0040). 

In addition, CSTE provided specific 

examples of ways in which the 

electronic reporting of case-level 

workplace injury and illness data can 

enhance State health department and 

others’ efforts to reduce work-related 

injuries and illnesses and hazards in 

States and communities. These 

examples included: 

• Identification of emerging 

problems: ‘‘The ability to search file 

level data not only in the establishment 

where the index case is/was employed 

but also other establishments in the 

industry to identify similar cases has the 

potential to facilitate timely 

identification of emerging hazards’’ that 

are ‘‘both new and newly recognized.’’ 

CSTE discussed an example from 

Michigan, where a State agency 

identified several deaths associated with 

bathtub refinishing, raising new 

concerns about the hazards of chemical 

strippers used in this process. 

Subsequent review of OSHA IMIS data 

identified 13 deaths associated with 

bathtub refinishing in a 12-year period.6

These findings from the State and 

Federal databases together led to the 

development of educational information 

about the hazards associated with tub 

refinishing and approaches to reducing 

risks; this material was disseminated 

nationwide to companies and workers 

in the industry. 

• Targeting establishments for 

preventive outreach in our communities: 

‘‘Public health investigations of workrelated incidents result not only in 

prevention recommendations to those 

involved in the incident, but in case 

studies which allow us to then take 

lessons learned and disseminate these 

lessons broadly to other stakeholders. 

The availability of information on highrisk establishments will allow for more 

targeted and efficient information 

dissemination. The ability to identify 

lower risk establishments may also 

provide new opportunities to learn from 

employers who are implementing best 

practices—and potentially to help 

identify under-reporters. The 

availability of establishment specific 

information offers the opportunity to 

incorporate occupational health 

concerns in community health 

planning, which is increasingly 

providing the basis for setting 

community health and prevention 

priorities.’’ 

• Improvement of data quality and 

use of the data: ‘‘Observations from 

interviews with OSHA record-keepers 

in Washington State suggest that 

incomplete OSHA records arise in part 

from lack of knowledge or confusion on 

the part of some employers about how 

to accurately and consistently record 

OSHA reportable cases and from poor 

employer prioritization of this 

task. . . . Electronic data collection and 

the subsequent public release of the data 

are means to improve data quality, 

knowledge, and compliance with OSHA 

recordkeeping requirements. Electronic 

collection of data offers the opportunity 

to provide employers with electronic 

tools (e.g., prompts, definitions, 

consistency edits, and industry-specific 

drop-down lists) to improve the quality 

of the data reported. Standardized 

feedback to establishments and 

potential reports of establishmentspecific data would promote the use of 

the data by employers and workers to 

set health and safety priorities and 

monitor progress in reducing workplace 

risks.’’ 

• Improvements in Medical Care: 

‘‘This record keeping rule, by 

facilitating the diagnosis of work-related 

conditions, will allow for better 

diagnosis and management of workplace 

illnesses by health care providers in the 

community, thereby contributing to a 

reduction in morbidity, absenteeism, 

and health care costs.’’ CSTE described 

an example from Massachusetts, which 

has a sharps injury prevention control 

program. This program supplements 

OSHA’s bloodborne pathogens standard 

by requiring hospitals to report select 

data from the OSHA-required log of 

sharps injuries annually to the 

Massachusetts Department of Public 

Health (MDPH). In recent years, data 

from all hospitals, which range in size 

from less than 150 to over 20,000 

employees, have been submitted 

through a secure electronic 

transmission. Annual hospital-specific 

data and statewide reports prepared by 

MDPH provide information on patterns 

of sharps injuries and sharps injury 

rates for use by hospitals and hospital 

workers as well as MDPH. As CSTE 

stated, this experience in Massachusetts 

‘‘indicates the utility of electronic 

reporting of person level occupational 

injury data for targeting prevention 

efforts at multiple levels’’ (Docket ID 

0040). 

The International Brotherhood of 

Teamsters noted that they agreed with 

these comments from CSTE (Docket ID 

0083). 

Similarly, the Strategic Organizing 

Center commented that States can use 

the collected data to compare injury and 

illness rates at specific establishments to 

the rates for that industry in general. 

The SOC also emphasized that ‘‘OSHA’s 

collection and distribution of . . . key 

metrics will finally provide a measure of 

transparency to workers, OSHA and its 

state partner agencies, the media and 

the public about the nature of the 

serious injuries afflicting workers at 

large employers in hazardous industries 

across the nation’’ (Docket ID 0079). 

OSHA also received comments from 

the States themselves (e.g., Docket IDs 

0045, 0069, 0084). One comment that 

was strongly supportive of the rule came 

from the Seventeen AGs. These State 

officials represented nine States with 

OSHA-approved State Plans that cover 

both private and State and local 


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government workers (California, Hawaii, 

Maryland, Michigan, Minnesota, 

Nevada, New Mexico, Oregon, and 

Vermont), four States that have OSHAapproved State Plans that cover State 

and local government workers only 

(Connecticut, Illinois, New Jersey, and 

New York) and four States without a 

State Plan (Delaware, the District of 

Columbia, Massachusetts, Rhode 

Island). Their comment cited increased 

transparency regarding workplace 

safety, as well as benefits to key 

interested parties (including employees, 

consumers, employers, researchers, and 

the States themselves) (Docket ID 0045). 

The Seventeen AGs commented that 

States planned to use the collected data 

for multiple specific purposes, 

including to: improve targeting and 

outreach (New Jersey); develop the next 

strategic inspection plan (Connecticut); 

ease administrative burden (Hawaii); 

target recordkeeping inaccuracies 

(Illinois); prioritize and increase 

efficiency of enforcement efforts 

(Maryland); improve the ability of a 

State advisory board on occupational 

safety and health to develop effective 

workplace injury prevention 

programming (Massachusetts); discern 

patterns in the frequency and severity of 

injuries (Minnesota); and inform future 

enforcement plans (Nevada). With the 

data that will become available to them, 

States will also be able to institute or 

improve targeted training and outreach 

programs, identify and investigate 

incidents in particular categories of 

concern (such as those that lead to 

ongoing disability and require 

accommodations under the Americans 

with Disabilities Act), compare the data 

to other data sources (such as workers’ 

compensation data), identify workplace 

injury and illness underreporting, 

improve their ability to consider 

companies’ workplace safety and health 

records when making contracting 

decisions, and increase the specific 

workplace injury and illness 

information available to State health 

agencies (Docket ID 0045). The AFL– 

CIO touted the prevention index created 

by Washington State, which operates 

both an OSHA State plan and the State 

workers’ compensation program. The 

State ‘‘utilizes the detailed injury and 

illness data collected through its 

workers’ compensation system, similar 

to the data contained in the Form 300 

and Form 301, to develop a prevention 

index. The index identifies the most 

common and costly injuries and 

illnesses and the industry sectors with 

the greatest potential for prevention’’ 

(Docket ID OSHA–2013–0023–2088, 

Attachment 1). 

In addition, the Seventeen AGs noted, 

‘‘[T]hese benefits will only accrue if 

OSHA collects and publishes such data. 

Not all states have the resources to 

create and manage their own databases, 

and, in any event, it is costlier and more 

inefficient for individual states to create 

separate databases. Data from a single 

jurisdiction is also much less likely to 

reveal patterns in workplace health and 

safety. Uniform national data collection 

efforts, by contrast, will also allow states 

to benchmark their performance— 

overall or in specific industries—against 

peer states in ways that might encourage 

or promote reforms, interventions, or 

legislation to address workplace safety 

issues. Moreover, even if the [s]tates are 

not able to engage in targeted 

enforcement now, it is nonetheless 

important to begin collecting and 

publishing more detailed data 

now. . . . And when the [s]tates 

implement targeting in the future, 

having a larger database of historic data 

on which to ‘train’ targeting algorithms 

will ensure that these algorithms are 

more accurate.’’(Docket ID 0045). The 

International Brotherhood of Teamsters 

commented with support for ‘‘the 

benefits touted by the letter [from the 

Seventeen AGs] on the need for public 

reporting of detailed injury and illness 

information to the [s]tates’ enforcement 

and regulatory agencies’’ (Docket ID 

0083). 

The California Department of 

Industrial Relations (DIR), Division of 

Occupational Safety and Health (Cal/ 

OSHA), and the Connecticut Council on 

Occupational Safety and Health 

(ConnectiCOSH) also provided separate 

comments in support of the proposed 

rule, citing benefits to worker safety 

(Docket IDs 0069, 0084). Cal/OSHA 

stated that the availability of the 

additional data would aid in 

‘‘identifying patterns that are currently 

masked by the aggregation of injury/ 

illness data by industry in existing data 

sources.’’ Furthermore: ‘‘[D]etailed case 

level data could be used when 

proposing new prevention-oriented 

regulations to California’s Occupational 

Safety & Health Standards Board 

(OSHSB), when responding to petitions 

to OSHSB for new or amended 

standards, and in the creation of specific 

compliance assistance materials 

oriented to existing or emerging 

workplace safety problems.’’ Cal/OSHA 

also emphasized that centralized data 

collection by OSHA ‘‘is the most 

efficient and cost-effective way to 

compile and utilize the data for 

prevention purposes,’’ and the cost to 

States of ‘‘setting up parallel systems 

. . . would be significant’’ (Docket ID 

0084; see also Docket ID OSHA–2013– 

0023–2088, Attachment 1). 

After consideration of these 

comments and others in the record, 

OSHA has determined that the expected 

benefits to Federal and State agencies 

overcome any doubts the agency 

expressed in the 2019 final rule related 

to the usefulness of the data and the 

costs of collection. OSHA has 

determined that Federal and State 

agencies will be able to use the collected 

data to improve workplace safety and 

health. The agency especially notes the 

benefits for States, which may not have 

the resources to create and manage their 

own data collections; the inefficiency of 

multiple State-specific databases versus 

a single national database; and the 

advantages of a uniform national data 

collection requirement. OSHA finds 

particularly convincing the examples of 

State and Federal entities’ past and 

planned future uses of the data to 

monitor, target, and prevent 

occupational injuries and illnesses. 

f. Beneficial Ways That Researchers Can 

Use the Data From Forms 300 and 301 

Multiple commenters provided 

examples of ways that researchers could 

use the collected data to improve 

workplace safety and health. Most 

generally, AIHA commented, 

‘‘Researchers require a stable data 

source to conduct studies that depend 

on unbiased, complete data sets. By 

collecting and making the data available 

to researchers, stratified analyses with 

sufficient power can be conducted that 

will make the results more generalizable 

to specific workers and industries.’’ 

(Docket ID 0030). Similarly, Centro del 

Derecho del Migrante commented, 

‘‘Public access to these data will better 

allow organizations like CDM to identify 

patterns of injuries and hazardous 

conditions in workplaces and advance 

worker safety and health’’ (Docket ID 

0089). 

Numerous commenters pointed out 

the limitations of currently available 

data from BLS, and the need for more 

data to produce statistically significant, 

robust results for more detailed 

categories of injuries, establishments, 

and employers. NIOSH commented that 

the release of summary injury data for 

all establishments of 20 or more 

employees in certain industries and of 

individual injury case data for injuries 

in establishments of 100 or more 

employees in certain industries would 

produce more accurate and statistically 

meaningful data than the BLS Annual 

Survey can provide ‘‘because the 

number of included injury records 

would be much greater than that 

included in the BLS sample of 


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establishments of this size in these 

industries.’’ NIOSH stated that ‘‘the 

proposed data collection in higher risk 

industries would enable more detailed 

and accurate statistics on the state as 

well as the national level.’’ In addition, 

the new data collection OSHA plans to 

make available ‘‘would provide 

establishment-specific, case-specific 

injury and illness data for analyses that 

are not currently possible.’’ NIOSH also 

stated that the release of the data 

collected by OSHA should make it 

possible to produce meaningful 

statistics and perform more in-depth 

analysis by combining records across 

several years by industry, employer, or 

establishment, which is not possible 

with the BLS SOII data that is currently 

available (Docket ID 0035). The 

International Brotherhood of Teamsters 

concurred with this comment (Docket 

ID 0083). 

The National Employment Law 

Project (NELP) commented on the need 

for expanded, more detailed data: 

‘‘NELP recently used the currently 

available establishment-level Injury 

Tracking Application data to conduct 

state-specific analyses on injury and 

illness rates in the warehousing sector. 

However, with access only to 

electronically submitted data from Form 

300A and not from Forms 300 and 301, 

we were limited by an inability to 

disaggregate by the types of serious 

injuries and serious illnesses. In 

addition, having access to case-specific 

injury and illness data as reported in 

300 and 301 forms would have allowed 

NELP to identify specific injury and 

illness trends, and correlate these with 

job titles, in order to more directly 

address and prevent hazards that put 

workers at risk.’’ (Docket ID 0049). 

The AFL–CIO commented that access 

to more detailed data would provide 

researchers with an invaluable source of 

information on workplace safety and 

health hazards (Docket ID 0061). The 

AFL–CIO also pointed to the limitations 

for researchers of the BLS SOII data: 

‘‘Studies have shown that the SOII data 

have significant limitations and that 

consistent and representative mandatory 

reporting would provide a more 

accurate data source for research on 

causes of injuries and illnesses and 

prevention methods to track 

improvements and emerging issues.’’ 

(Docket ID 0061). 

Commenters also provided examples 

of how researchers have used data to 

improve workplace safety and health. 

For example, The Strategic Organizing 

Center described its analysis of ITA data 

to prepare reports on occupational 

injury rates among warehouse workers. 

It stated: ‘‘This example, we believe, 

completely vindicates OSHA’s original 

intent in establishing the Injury 

Tracking Application, including the 

public release of the data received from 

employers. Absent the easy availability 

of these data, it would be difficult if not 

impossible for those outside the 

management structure of major 

employers to understand the basic 

details of the worker safety and health 

situation at these companies, much less 

to force employers with deficient 

performance to change their practices. It 

is vital that employers who attempt to 

misrepresent the failures of their worker 

safety and health systems understand 

that they are subject to the independent 

oversight and review that can only be 

offered by broadly-available distribution 

of key metrics, such as the numbers, 

rates and characteristics of worker 

injuries and illnesses.’’ (Docket ID 

0079). 

The Strategic Organizing Center also 

pointed to injury research in the hotel 

industry as an example of the value of 

OSHA’s providing the 300 and 301 data 

for further analysis: ‘‘In the mid-2000’s, 

as the hotel industry was rapidly 

introducing heavier mattresses and 

increased workloads for housekeepers, 

the hotel union UNITE HERE undertook 

an analysis of the 300 logs and 

employee personnel demographic data 

to determine injury trends by injury 

type, job title, gender and race/ethnicity. 

We published [a] study by Buchanan et 

al in 2010, the value of which OSHA 

recognized in the preamble to the 2016 

Final Injury Tracking Rule (81 FR 

29685, Col. 3). It revealed that the rates 

of different injury types varied greatly 

across the study population of 55,327 

person-years over a 3-year period at 50 

hotels in five of the largest US hotel 

chains. We found that MSD’s were 

highest among housekeepers, and acute 

traumatic injuries highest among cooks/ 

kitchen workers, and injury rates higher 

among women than men. Much of the 

various increased risks was driven by 

the exceptionally high risks endured by 

hotel housekeepers (7.9 injuries/100 

person-years).’’ (Docket ID 0079). 

The Communication Workers of 

America (CWA) commented on the 

value of access to large datasets of 

workplace injury and illness 

information. It gave examples of data 

analyses it has conducted to address 

safety and health issues: 

• CWA has analyzed large quantities 

of OSHA Log data for certain regions 

from some large telecommunications 

employers. It was able to compare 

aggregate worksite data from two 

different regions for the same employer 

for the same year. Its comparison of 

aggregate OSHA 300 Log data from two 

different regions for the same employer 

shows a large discrepancy in workrelated COVID cases recorded on the 

OSHA 300 Logs and also demonstrates 

the value of the Cal/OSHA COVID 

standard’s reporting requirements given 

the increased reporting for sites in 

California. 

• Recent and past analyses by a 

telecommunications employer of its 

OSHA Log data for work locations in 

NY has shown the toll of injuries and 

lost work days related to manhole cover 

lifting. The employer, the union and 

union members worked together to 

conduct ergonomic assessments using 

biometric sensors to evaluate the strain 

of manhole cover lifting using different 

designs of manhole cover lifters. The 

biometric assessments combined with 

worker feedback led to design of a new, 

vehicle mounted manhole lifting device. 

The employer will likely use the newlyapproved manhole cover lifters in other 

areas of the country where it operates. 

Aggregate OSHA 300 Log data will aid 

in evaluating the effectiveness of this 

intervention in reducing and preventing 

manhole cover lifting injuries. 

• An analysis by one employer of 

OSHA recordable injury/illness data for 

the previous year from all worksites on 

Long Island, NY revealed there had been 

over 11,000 lost work days due to 

extension ladder accidents. After 

training, the number of extension ladder 

accidents in those work locations 

dropped significantly, to almost none. 

This initiative looked at aggregate data 

from one employer’s multiple worksites. 

Establishment-specific data, on its own, 

would not have revealed the extent of 

the problem and the need for 

interventions, nor would it have 

incentivized the employer to take action 

and provide training. 

• Analyses of OSHA 300 Log data has 

led to multiple safety improvements in 

CWA-represented manufacturing 

facilities with active health and safety 

committees. At locations where CWA 

members build engines and engine 

parts, OSHA 300 Log data analyses has 

resulted in ergonomic assessments and 

training, the provision of better PPE, 

and improved safety protocols. 

(Docket ID 0092) 

After consideration of these 

comments, OSHA has determined that 

researchers will be able to use the 

collected data to improve workplace 

safety and health. OSHA finds 

particularly convincing the examples of 

past and planned future uses of the data 

by researchers to monitor, target, and 

prevent occupational injuries and 

illnesses. 


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g. Beneficial Ways That Workplace 

Safety Consultants Can Use the Data 

From Forms 300 and 301 

In the proposed rule, OSHA asked, 

‘‘What are some ways that workplace 

safety consultants could use the 

collected data to improve workplace 

safety and health?’’ (87 FR 18547). 

OSHA received several comments about 

ways that workplace safety consultants 

could use the collected data to improve 

workplace safety and health (Docket IDs 

0026, 0030, 0035). Most generally, AIHA 

commented that the value that 

workplace safety consultants bring to a 

company is directly related to the 

availability of high-quality data, and 

‘‘[c]ompanies that engage consultants 

depend on the consultant to be fully 

informed of the inherent risks of 

specific operations, tasks, and industries 

so that the recommendations for 

improvement and correction are based 

on evidence’’ (Docket ID 0030). Justin 

Hicks commented that the collected 

data would be useful ‘‘[a]s a young 

safety professional . . . when educating 

my employer on safety culture’’ (Docket 

ID 0026). Additionally, NIOSH 

identified a number of ways in which 

workplace safety consultants might use 

this data, including ‘‘identifying and 

disseminating useful facts about the 

comparative safety performance of 

establishments, employers, and 

employer groups,’’ and ‘‘analy[zing] 

patterns of injury causation at their 

client workplaces and appropriate 

comparisons of workplaces’’ (Docket ID 

0035, Attachment 2). NIOSH also noted 

that consultants’ work with the 

collected data ‘‘promises to assist other 

stakeholders in identifying patterns of 

injuries and targets for prevention and 

to complement the research 

disseminated by state and federal 

agencies’’ (Docket ID 0035, Attachment 

2). 

OSHA agrees with these commenters 

that the collected data will help 

workplace safety consultants to be fully 

informed of the risks of specific 

operations, tasks, and industries and, in 

turn, will give consultants the 

information necessary to advise their 

employers on safety and health 

practices. Accordingly, OSHA has 

determined that workplace safety 

consultants and other workplace safety 

professionals will be able to use the 

collected data to improve workplace 

safety and health. 

h. Beneficial Ways That the Public Can 

Use the Data From Forms 300 and 301 

In the proposed rule, OSHA asked, 

‘‘What are some ways that members of 

the public and other stakeholders, such 

as job-seekers, could use the collected 

data to improve workplace safety and 

health?’’ (87 FR 18547). Several 

commenters provided insights about 

how the general public, the media, and 

prospective employees will be able to 

use the collected data to improve 

workplace safety and health. With 

respect to the general public, Hunter 

Cisiewski commented that the public 

availability of data would ‘‘allow the 

public to hold companies accountable 

for creating unsafe workplaces’’ and 

‘‘make informed decisions about . . . 

what industries they should support,’’ 

as well as ‘‘incentivize employers to 

create safe working conditions’’ (Docket 

ID 0024). The Seventeen AGs 

commented that the availability of data 

would benefit consumers, ‘‘who can use 

information about employer safety to 

inform their purchasing and contracting 

decisions’’ (Docket ID 0045). In 

addition, Worksafe commented that the 

press and advocacy organizations could 

‘‘monitor and report on the data’’ 

(Docket ID 0063). 

Commenters also addressed how job 

seekers could use the collected data to 

improve workplace safety and health 

(Docket IDs 0020, 0024, 0030, 0063, 

0082). For example, Hunter Cisiewski 

commented that the data would allow 

prospective employees ‘‘to make 

informed decisions about where they 

should work’’ (Docket ID 0024). AIHA 

commented that access to the collected 

data would allow job seekers to ‘‘inquire 

about specific health and safety 

practices or culture during interviews,’’ 

help them to be more informed, and 

encourage prospective employers to be 

more transparent (Docket ID 0030). 

Similarly, Worksafe commented that the 

availability of injury and illness data 

would allow job seekers ‘‘to better 

assess the types, severity, and frequency 

of injuries and illnesses in a particular 

workplace’’ and make more informed 

decisions regarding their employment’’ 

(Docket ID 0063). Additionally, the 

Seventeen AGs commented that public 

access to detailed injury and illness data 

would ‘‘empower’’ workers who are 

most impacted by occupational hazards, 

i.e., low-income workers and workers 

belonging to racial and ethnic minority 

groups, ‘‘to make informed decisions 

regarding where they choose to work’’ 

(Docket ID 0045). 

On the other hand, multiple 

commenters asserted that the data 

would not be useful to the public. The 

overarching concern of these 

commenters was that the public would 

lack the context necessary for the data 

to provide an accurate picture of an 

establishment’s safety and health 

practices (Docket IDs 0021, 0043, 0050, 

0052, 0053, 0062, 0071, 0075, 0086, 

0090). For example, the National 

Propane Gas Association commented 

that the collected data would ‘‘mislead’’ 

the public because it is ‘‘only a fraction 

of information regarding a workplace’’ 

and, in order to provide accurate 

information about worker safety, OSHA 

would also need to publish information 

such as ‘‘the number of uninjured or 

healthy individuals working for the 

establishment; . . . the safety 

procedures or policies implemented, 

days/weeks/months/years without 

injuries or illnesses; . . . a comparison 

of the frequency or average for the 

industry versus the specific 

establishment; . . . actions by the 

employee that caused or contributed to 

the injury or illness; . . . [and] the 

corrective actions by the establishment’’ 

(Docket ID 0050). Similarly, Angela 

Rodriguez commented that injury and 

illness data may be misleading ‘‘without 

the explanation of contributing root 

causes’’ (Docket ID 0052). Likewise, 

Representatives Virginia Foxx (R-North 

Carolina) and Fred Keller (RPennsylvania) commented that ‘‘an 

employer’s injury and illness logs say 

nothing meaningful about an employer’s 

commitment to safety and compliance 

with OSHA standards,’’ and ‘‘[m]any 

factors outside an employer’s control 

may lead to workplace injuries and 

illnesses’’ (Docket ID 0062). And, the 

Plastics Industry Association 

commented that when viewing an 

employer’s injury and illness data in 

isolation, ‘‘[t]here is insufficient context 

to draw conclusions about the 

employer’s safety program or practices’’ 

(Docket ID 0086). 

Commenters pointed to a number of 

reasons for their concern about 

misinterpretation or misleading data. 

Some commenters expressed concern 

that the collected data may be 

misleading specifically because it may 

include injuries or illnesses that are not 

the employer’s fault (Docket IDs 0021, 

0043, 0052, 0075, 0086, 0090). For 

example, the Motor and Equipment 

Manufacturers Association and the 

Flexible Packaging Association 

commented that data may be 

misinterpreted because many workplace 

injuries occur due to circumstances 

entirely outside of an employer’s control 

(Docket ID 0075, 0090). More 

specifically, AWCI commented that 

some injuries and illnesses are ‘‘due 

solely to employee misconduct,’’ or ‘‘the 

fault of neither the employer nor the 

employee’’ (Docket ID 0043). AWCI also 

commented that ‘‘falsified or 

misrepresented workplace injury or 

illness claims’’ may result in inaccurate 


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data, as will workplace fatalities that are 

later determined not to be work-related 

(Docket ID 0043). Similarly, Angela 

Rodriguez commented that under 29 

CFR 1904.5(b)(2)(ii), employers are 

required to record injuries and illnesses 

for which symptoms surface at work but 

result solely from a nonwork-related 

event or exposure that occurs outside 

the work environment (Docket ID 0052). 

The Chamber of Commerce claimed that 

injury and illness data are unreliable 

because workers’ compensation 

programs and the presence of collective 

bargaining agreements affect the number 

of injuries and illnesses reported to 

OSHA, therefore, ‘‘[t]wo employers with 

the same kinds of injuries will be 

viewed by OSHA and the public as 

differently culpable’’ (Docket ID 0088, 

Attachment 2). Finally, the Plastics 

Industry Association commented that 

‘‘many injuries that have no bearing on 

an employer’s safety program must be 

recorded,’’ and pointed to injuries 

resulting from employee misconduct, 

substance abuse, and accidents as 

examples (Docket ID 0086). 

Other commenters were concerned 

that the collected data would lead to 

misinterpretation because the data do 

not provide an accurate picture of what 

is currently happening or what will 

happen in the future. The Motor and 

Equipment Manufacturers Association 

commented generally that ‘‘injury and 

illness data would become stale by the 

time it is made public’’ (Docket ID 

0075). AWCI commented that ‘‘[l]agging 

indicators . . . such as OSHA 

recordable/reportable injury and illness 

data[ ] have shown to be poor indicators 

of future safety and health performance’’ 

because they ‘‘present information about 

what has occurred in the past with no 

mechanism for accurately predicting 

what may occur in the future’’ (Docket 

ID 0043). 

Still other commenters said that the 

public would be even more likely to 

misinterpret data from small businesses. 

AWCI commented that ‘‘the formula 

that OSHA uses [to calculate injury and 

illness rates] is based on 100 full-time 

workers and the denominator in the 

equation is the total number of hours 

worked by all employees,’’ so ‘‘the 

resulting incidence rates often depict 

extremely inaccurate perceptions of 

smaller establishments’ safety and 

health cultures and past safety and 

health performances’’ (Docket ID 0043). 

Similarly, the Associated Builders and 

Contractors commented, ‘‘by expanding 

the mandate to 100 or more employees 

from 250, OSHA’s proposal puts smaller 

companies at a disadvantage by making 

them appear to be less safe than larger 

companies by comparison. A smaller 

company with the same number of 

injuries and illnesses as a larger 

company is likely to have a higher 

incident rate’’ (Docket ID 0071). 

In response, OSHA agrees with those 

commenters who stated that the public 

will be able to use the published 

establishment-specific, case-specific, 

injury and illness data to improve 

workplace safety and health. The online 

availability of such data will allow 

members of the public to determine 

which workplaces in a particular 

industry are the safest, and identify 

emerging injury and illness trends in 

particular industries. As noted by 

commenters, the public may use this 

data to make decisions about what 

companies and industries they support 

and want to work for. The availability 

of data will also facilitate the press’s 

ability to monitor and report on it, 

which will further ensure that members 

of the public are well-informed and can 

make decisions accordingly. For these 

reasons, and as explained above, OSHA 

finds that public access to this data will 

ultimately help to improve workplace 

safety and health. 

Generally, to the extent the 

commenters suggest that the casespecific data from Forms 300 and 301 

will not be useful information to the 

public, OSHA disagrees, and finds that 

the benefits of expanded public access 

to this data outweigh commenters’ 

concerns. As OSHA explained in the 

final rule on Occupational Injury and 

Illness Recording and Reporting 

Requirements (January 19, 2001), injury 

and illness records have long made 

employers more aware of the injuries 

and illnesses occurring in their 

workplaces, and are essential in helping 

employers to effectively manage their 

safety and health programs. 

Additionally, such records ensure 

employees are better informed about 

hazards they face in the workplace and 

encourage employees to both follow safe 

work practices and report workplace 

hazards to employers (66 FR 5916–67). 

For similar reasons, as identified by 

commenters and explained above, the 

public can use such data to improve 

workplace safety and health. 

However, OSHA acknowledges 

commenters’ concerns about potential 

misinterpretation and recognizes that 

the public may need more assistance in 

understanding the data than employers, 

researchers, and other similar interested 

parties. OSHA recognizes the need to 

provide information to the public to aid 

their understanding of the data. The 

web page for the ITA (https://

www.osha.gov/Establishment-SpecificInjury-and-Illness-Data) contains several 

explanations of the data that address 

commenters’ specific concerns, 

including: 

• ‘‘Recording or reporting a workrelated injury, illness, or fatality does 

not mean that the employer or employee 

was at fault, that an OSHA rule has been 

violated, or that the employee is eligible 

for workers’ compensation or other 

benefits.’’ 

• ‘‘While OSHA takes multiple steps 

to ensure the data collected is accurate, 

problems and errors invariably exist for 

a small percentage of establishments. 

OSHA does not believe the data for the 

establishments with the highest rates in 

these files are accurate in absolute 

terms. Efforts are made during the 

collection cycle to correct submission 

errors; however, some remain 

unresolved. It would be a mistake to say 

establishments with the highest rates in 

these files are the ‘most dangerous’ or 

‘worst’ establishments in the nation.’’ 

The web page for the data collected 

through the OSHA Data Initiative 

(https://www.osha.gov/ords/odi/ 

establishment_search.html) also 

includes the second explanatory note. 

OSHA also notes the many examples 

in the rulemaking record provided by 

commenters on not only how various 

interested parties currently use 

establishment-specific, case-specific, 

injury and illness data, but also on how 

they will be able to use the greater 

access to such information provided by 

this final rule to reduce occupational 

injuries and illnesses. Some 

commenters’ concerns seem to hinge on 

the assumption that the general public 

lacks the sophistication necessary to 

understand the collected data. However, 

this section of the preamble provides 

many examples of the ways in which 

employers, employees, government 

agencies, researchers, and other 

interested parties will use this data to 

perform more detailed and accurate 

analyses of workplace safety and health 

practices, create education and training 

programs to reduce workplace hazards, 

develop resources, and conduct studies. 

To the extent that members of the public 

require additional context to make sense 

of injury and illness data, other 

interested parties will make that 

information available through their own 

use of the data. 

Additionally, as explained in more 

detail in Section III.B.14 of this 

Summary and Explanation, commenters 

provided suggestions for ways to make 

published data more useful to interested 

parties. The Seventeen AGs also 

commented that the public may only 

benefit from the publication of injury 

and illness data ‘‘if it is aware of its 

existence,’’ and suggested that OSHA 

‘‘evaluate and choose effective avenues 


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for publicizing the availability of the 

data’’ (Docket ID 0045). OSHA will take 

these comments into consideration 

when designing tools and applications 

to make the published data more 

accessible and useful to interested 

parties. 

After consideration of these 

comments, OSHA has determined that 

members of the public and other 

interested parties will be able to use the 

collected data to improve workplace 

safety and health. OSHA will continue 

to consider additional ways to assist the 

public in both awareness of and 

understanding the data, including 

through web-based search applications 

and other products. As explained in the 

preamble to the proposed rule, the 

agency plans to make the data available 

and able to be queried via a web-based 

tool. Interested parties who are 

interested in learning about 

occupational injuries and illnesses will 

have access to information on when 

injuries and illnesses occur, where they 

occur, and how they occur. In addition, 

interested parties can use the tool to 

analyze injury and illness data and 

identify patterns that are masked by the 

aggregation of injury/illness data in 

existing data sources. As explained in 

the preamble to the proposed rule, in 

developing a publicly accessible tool for 

injury and illness data, OSHA will 

review how other Federal agencies, such 

as the Environmental Protection Agency 

(EPA), have made their data publicly 

available via online tools that support 

some analyses. 

For the above reasons, and based on 

the record in this rulemaking, OSHA 

believes that the electronic submission 

requirements, along with the subsequent 

publication of certain injury and illness 

data, set forth in this final rule will 

result in significant benefits to 

occupational safety and health. OSHA 

also concludes that the significant 

benefits to employers, employees, 

OSHA, and other interested parties 

described in this section outweigh the 

slight risk to employee privacy. 

Accordingly, OSHA has determined that 

it is necessary and appropriate to 

require certain establishments to 

electronically submit case-specific, 

establishment-specific, data from their 

Forms 300 and 301 to OSHA once a 

year. 

5. The Freedom of Information Act 

(FOIA) 

Many of the comments OSHA 

received on proposed § 1904.41(a)(2) 

related not to the proposed requirement 

to submit information from OSHA 

Forms 300 and 301, per se, but rather to 

OSHA’s plan to make some of the data 

which it receives publicly available on 

its website (as detailed above). The 

agency is doing so for two main reasons. 

First, based on its experience with 

previous FOIA requests for particular 

establishments’ Forms 300A, 300, and 

301 (as contained in inspection files) 

and for all Form 300A data submitted 

electronically, OSHA anticipates that it 

will receive FOIA requests for the Form 

300 and 301 data submitted under the 

requirements of this final rule. Once the 

agency releases the Form 300 and 301 

data submitted under the requirements 

of this final rule (after applying the 

appropriate FOIA exemptions), OSHA 

anticipates (again based on the previous 

FOIA requests) that it would be required 

to post the released information online 

under 5 U.S.C. 552(a)(2)(D), which 

requires agencies to ‘‘make available for 

public inspection in an electronic 

format . . . copies of all records . . . 

that because of the nature of their 

subject matter, the agency determines 

have become or are likely to become the 

subject of subsequent requests for 

substantially the same records; or . . . 

that have been requested 3 or more 

times[.]’’ OSHA finds that proactively 

releasing the electronically submitted 

information from establishments’ Forms 

300 and 301 would conserve resources 

that OSHA would otherwise spend 

responding to such FOIA requests 

(before the information would be posted 

online after the agency’s initial 

responses to such requests). 

Second, and more importantly from a 

safety and health perspective, as 

explained in detail in Section III.B.4 of 

this Summary and Explanation, above, 

OSHA believes that the public release of 

case-specific data from establishments’ 

Forms 300 and 301 will generate many 

worker safety and health benefits. In 

short, OSHA anticipates that employers, 

employees, Federal and State agencies, 

researchers, workplace safety 

consultants, members of the public, and 

other interested parties can use the 

collected data to improve workplace 

safety and health. (Comments related to 

benefits are addressed above in Section 

III.B.4 of this Summary and 

Explanation.) 

OSHA explained both of these reasons 

in the proposal (see 87 FR 18535, 

18542). OSHA also discussed the 

similarities between the way it intends 

to treat the data it would collect and 

publish under this rule and the way it 

responds to requests for the same data 

under FOIA. OSHA explained that it 

already collects Forms 300 and 301 

during many inspections, and often 

receives requests for them under FOIA. 

As a rule, OSHA releases copies of the 

Forms 300 and 301 for closed cases after 

redacting the same information that will 

either not be collected or not be 

published under this rule. OSHA 

explained that it uses FOIA Exemptions 

6 and 7(C) to withhold from disclosure 

information in personnel and medical 

files and similar files that ‘‘would 

constitute a clearly unwarranted 

invasion of personal privacy’’ or records 

or information compiled for law 

enforcement purposes to the extent that 

the production of such law enforcement 

records or information ‘‘could 

reasonably be expected to constitute an 

unwarranted invasion of personal 

privacy’’ (5 U.S.C. 552(b)(6), 

552(b)(7)(C)). OSHA intended this 

discussion to reassure the regulated 

community that it has a great deal of 

experience in protecting privacy 

interests when it releases the forms that 

are at issue in this rule. 

Separately, OSHA also pointed out 

that in multiple cases where it had 

denied FOIA requests for Form 300A 

data, which does not include personal 

information about injured employees, 

courts had ruled that OSHA had to 

release the data (see 87 FR 18531). 

OSHA believes those rulings support its 

decision here to release non-personal 

information from the Forms 300 and 

301. (One commenter said that the name 

and telephone number of the executive 

certifying the accuracy of Form 300A 

should be considered private 

information (Docket ID 0086); OSHA 

agrees; in fact, the agency has never 

even collected this information as part 

of its routine data collection of 

information from the Form 300A 

through either the ODI or the ITA. 

Likewise, it will not do so pursuant to 

this rule.) 

A number of commenters reacted to 

OSHA’s discussion of FOIA (e.g., Docket 

IDs 0042, 0050, 0070, 0071, 0072, 0076, 

0088, 0090, 0094). For example, the 

National Propane Gas Association 

(NPGA) said that it ‘‘strongly disagrees’’ 

with OSHA’s argument ‘‘that since casespecific, establishment-specific 

information is subject to FOIA requests, 

the information is available to the 

public inevitably and, thereby, the 

agency’s proposal to create a public 

website merely eliminates the 

procedural step of a stakeholder 

submitting a FOIA request.’’ According 

to NPGA, a ‘‘FOIA request is defined to 

a specific incident or event, date, and 

establishment and initiated on the basis 

of a defined interest by the submitter’’ 

(Docket ID 0050). OSHA does not agree. 

FOIA requests can be filed by any 

member of the public, with no 

requirement to show why the requester 

is seeking the information, and 

researchers and members of the press 


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7OSHA notes some of the issues noted in this 

paragraph are addressed below in Section III.E of 

the Summary and Explanation, on section 

1904.41(b)(10). However, OSHA sees some utility in 

reviewing this issue in this part of the preamble as 

well. 

file such requests frequently. These 

requests are often for large quantities of 

data, not for material related to ‘‘a 

specific incident or event, date, and 

establishment.’’ 

The Phylmar Regulatory Roundtable 

(PRR) also expressed concern with 

OSHA’s statements in the preamble 

about how the agency ‘‘generally 

releases copies of the 300 logs [(i.e., 

Form 300)] maintained in inspection 

files in response to FOIA requests after 

redacting employee names (column B)’’ 

(see 87 FR 18532) commenting, ‘‘[i]t is 

not clear what is meant by ‘generally 

releases’ but it can be assumed it is not 

often. Currently, OSHA only has access 

and, more importantly, the ability to 

release Form 300 Logs that are collected 

as part of an inspection’’ (Docket ID 

0094). PRR added, ’’ It is commonly 

known, and stated in the NPRM, that 

OSHA does not have the resources to 

conduct a fraction of the inspections 

that collection through the proposed 

rule would produce. In actuality, the 

previous risk is much lower than what 

OSHA is now proposing. Also, the 

privacy is no longer central to FOIA 

requests because once the data is 

posted, anyone will have access, 

without having to make any official 

requests. Finally, the little protection 

the FOIA process does provide to 

protect worker confidentiality will be 

gone as well.’’ (Docket ID 0094). 

This comment misunderstands 

OSHA’s purpose in discussing its FOIA 

practice. The section of the NPRM 

preamble in which the OSHA 

statements quoted by PRR appear is an 

explanation of which data from the 

OSHA Forms 300 and 301 the agency 

proposed to make available on OSHA’s 

website. In the paragraph in which the 

sentence commented on by PRR 

appears, OSHA explained that it plans 

to collect all the fields in 

establishments’ Form 300 except 

employee name (column B) and that 

‘‘[a]ll collected data fields on the 300 

Log will generally be made available on 

OSHA’s website’’ (87 FR 18532). At the 

end of this paragraph, OSHA explained 

that it currently ‘‘generally releases 

copies of the 300 Logs maintained in 

inspection files in response to FOIA 

requests after redacting employee 

names’’ (87 FR 18532). This information 

was included to explain that releasing 

information from establishments’ Forms 

300s is not new; OSHA has been 

releasing information from both the 300 

and 301 forms for some time. 

When OSHA said it ‘‘generally 

releases’’ data, it meant that the default 

is to release it, unless there is a reason 

not to do so (i.e., one or more FOIA 

Exemptions). For example, if a Form 

includes information that could 

reasonably be expected to identify 

individuals directly, the agency would 

withhold that information from release 

under FOIA Exemption 6 or 7(C). 

Likewise, and as discussed in more 

detail below, OSHA is utilizing multiple 

layers of protection to ensure that 

information which could reasonably be 

expected to identify individuals directly 

is protected from disclosure. 

OSHA also disagrees with PRR’s 

assertion that ‘‘the little protection the 

FOIA process does provide to protect 

worker confidentiality will be gone’’ 

when this rulemaking goes into effect 

and with its claim that the risk of 

worker identification under OSHA’s 

FOIA practice is far lower than that in 

this rulemaking (Docket ID 0094). As 

explained extensively throughout this 

section, OSHA has included multiple 

layers of protection to protect 

information that could reasonably be 

expected to identify individuals 

directly. Significantly, this includes not 

collecting some information that is 

included on the Forms 300 and 301 that 

OSHA collects during inspections (e.g., 

employee names). Thus, the information 

obtained in this rulemaking is already 

starting at a less-identifiable point than 

the information obtained during 

inspections. And OSHA expects that the 

remainder of the process, i.e., system 

design, only releasing certain fields, and 

using scrubbing technology, will 

provide comparable protection to that 

provided under the FOIA process. 

OSHA also received comments from a 

number of interested parties expressing 

concern about the proposed requirement 

for establishments to submit and 

OSHA’s plan to publish particular 

information that appears on 

establishments’ Forms 300 or 301. These 

commenters alleged that their 

businesses would suffer in various ways 

if such information was collected and 

released. For example, some of these 

commenters argued that the proposed 

rule would require employers to submit 

to OSHA data that the commenters 

consider to be proprietary and 

confidential to their businesses, e.g., the 

number of employees and the hours 

worked at a particular location are 

regarded as proprietary information by 

many companies (Docket IDs 0042, 

0071, 0072, 0088, 0090). A comment 

from the Louisiana Chemical 

Association is representative of this 

argument: ‘‘The number of employees 

and the hours worked at a particular 

location [are] regarded as proprietary 

information by many companies. This 

information if revealed provides details 

regarding the business processes, 

production volumes, security, and 

operational status of a facility’’ (Docket 

ID 0042). Similar comments were made 

by the National Retail Federation 

(Docket ID 0090), the U.S. Chamber of 

Commerce (Docket ID 0088), and the 

Associated Builders and Contractors 

(Docket ID 0071). 

Similarly, other commenters opposed 

the publication of an establishment’s 

name and address, as well as casespecific injury and illness data from the 

Forms 300 and 301, on the ground that 

doing so would harm a company’s 

overall reputation (e.g., Docket ID 0036, 

0043, 0050, 0068, 0071).7 For example, 

according to NAM, ‘‘This newly 

available data immediately puts 

employers, manufacturers in particular, 

in a defensive posture whereby 

compliance with this rule adds 

unintended risks to company 

reputation. Prematurely publishing 

sensitive establishment data would 

damage those companies who are 

improving their safety programs, leaving 

smaller businesses the most vulnerable 

in such a scenario. Manufacturers need 

to know that their good faith 

compliance will not hurt their 

business.’’ (Docket ID 0068). 

When considering whether a 

particular piece of information OSHA 

proposed to collect and make publicly 

available in this rulemaking will be 

problematic in any way, including as to 

a company’s competitiveness or its 

reputation, it is important to consider 

which information is currently publicly 

available and whether posting such data 

has actually resulted in the harm raised 

by commenters on this rulemaking. 

OSHA began publishing individual 

establishment 300A annual summary 

data, then submitted through the OSHA 

Data Initiative (ODI), in 2009, and data 

for calendar years 1996 through 2011 is 

posted in a searchable format at: https:// 

www.osha.gov/ords/odi/establishment_

search.html. The ODI data files include 

information on the number of 

employees and the hours worked hours, 

as well as establishments’ names and 

street addresses (see 

‘‘DataDictionary1996–2001.txt’’, 

‘‘DataDictionary2002–2011.txt’’ 

available at the ODI website cited in the 

previous sentence). Despite the fact that 

these data have been publicly available 

for more than a decade, OSHA is not 

aware of, and no commenter has 

provided, any specific examples of 

reputational harm, of firms losing 

business opportunities or potential 


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employees, or any other harm resulting 

from the public availability of these 

data. 

This point was emphasized in 

comments submitted by the Strategic 

Organizing Center for this rulemaking 

(Docket ID 0079), including one 

previously submitted during the 

proceeding leading the 2016 rule. That 

comment pointed out that none of the 

employers expressing concern about 

‘‘reputational damage’’ during a 2013 

public meeting on what became the 

2016 rule ‘‘could point to a single 

instance of such damage arising from 

the release of workplace injury/illness 

records.’’ The comment added that ‘‘the 

representatives of several large trade 

associations . . . made the same claim, 

and offered the same paucity of 

evidence.’’ SOC further opined that if 

any of their members had actually 

suffered any reputational damages, then 

these ‘‘highly sophisticated participants 

. . . would either already know about it 

or been able to find at least a pattern of 

compelling examples worthy of the 

Secretary’s consideration in this 

rulemaking,’’ but they did not offer any 

such examples at the public meeting, 

‘‘even in response to repeated questions 

by OSHA.’’ Almost a decade has passed 

since that meeting, even more 

information is available, and OSHA has 

still seen no evidence of reputational or 

other harm to employers that submitted 

required data. 

Moreover, OSHA has also published 

data from establishments’ Forms 300A 

for calendar years 2016 through 2021 in 

downloadable data files at https://

www.osha.gov/Establishment-SpecificInjury-and-Illness-Data. These 

published data include, among other 

things, company name and address, 

annual average number of employees, 

and total hours worked (see Data 

Dictionary available at the OSHA 

website cited in the previous sentence). 

Again, OSHA is not aware of, and no 

commenter has provided, any specific 

examples of reputational harm, of firms 

losing business opportunities or 

potential employees, or any other harm 

resulting from the public availability of 

these data. Consequently, OSHA is not 

persuaded that these unsubstantiated 

concerns regarding potential harms that 

may result from OSHA’s posting of 

information from their recordkeeping 

forms in any way outweigh the worker 

safety and health benefits that will be 

realized from OSHA’s collection and 

posting of certain data from 

establishments’ recordkeeping forms. 

OSHA also received comments 

arguing that the proposed rule was 

arbitrary and capricious or that OSHA’s 

statements within the proposed rule’s 

preamble were otherwise suspect, 

problematic, or confusing because 

OSHA has taken a different position 

during past FOIA litigation. For 

example, the U.S. Chamber of 

Commerce commented that in the New 

York Times Co. v. U.S. Dep’t of Labor, 

340 F. Supp. 2d 394 (S.D.N.Y. 2004), 

and in OSHA Data/CIH, Inc. v. U.S. 

Dep’t of Labor, 220 F.3d 153 (3d Cir. 

2000), OSHA took the position that the 

total number of employees and hours 

worked at a particular establishment 

was ‘‘confidential and proprietary 

business information,’’ in contrast to its 

position in the NPRM (Docket ID 0088, 

Attachment 2). 

The Chamber accurately characterizes 

OSHA’s arguments in the New York 

Times case but fails to mention one key 

fact: the court found that the 

information was not confidential. 

Specifically, in its decision, the court 

concluded that basic injury and illness 

recordkeeping data regarding the 

average number of employees and total 

number of hours worked does not 

involve confidential commercial 

information (see 350 F. Supp. 2d 394 at 

403). It held that competitive harm 

would not result from OSHA’s release of 

lost workday injury and illness rates of 

individual establishments, from which 

the number of employee hours worked 

could theoretically be derived (id. at 

402–403). Additionally, the court 

explained that most employers do not 

view injury and illness data as 

confidential (id. at 403). 

In the years after the court’s decision 

rejected the Secretary’s argument that 

the injury and illness rates requested in 

the FOIA suit could constitute 

commercial information under 

Exemption 4 of FOIA, 5 U.S.C. 

552(b)(4), the Secretary reconsidered 

their position. Beginning in 2004, in 

response to FOIA requests, OSHA’s 

policy has been to release information 

from Form 300A on the annual average 

number of employees and total hours 

worked by all employees during the past 

year at an establishment. Similarly, 

OSHA began releasing establishment 

Forms 300 and 301 in response to FOIA 

requests (after appropriately redacting 

certain personal identifiers under 

Exemption 7(C)). And, as noted above, 

the agency began posting information 

from establishments’ Forms 300A online 

in 2009 as part of ODI. Thus, OSHA 

included a statement in the 2013 

proposed rule and 2016 final rule 

explaining that the Secretary no longer 

believes that the injury and illness 

information entered on the OSHA 

recordkeeping forms constitutes 

confidential commercial information. 

OSHA’s general practice of releasing 

recordkeeping forms to FOIA requesters 

(with appropriate redactions largely 

related to information that could 

identify employees, e.g., employee 

names) continued in the years prior to 

the Supreme Court’s decision in Food 

Marketing Institute v. Argus Leader 

Media, 139 S. Ct. 2356 (2019) (‘‘Argus 

Leader’’). In Argus Leader, the Court 

held that ‘‘at least where commercial or 

financial information is both 

customarily and actually treated as 

private by its owner and provided to the 

government under an assurance of 

privacy, the information is ‘confidential’ 

within the meaning of Exemption 4’’ (id. 

at 2366). After the issuance of the Argus 

Leader decision, OSHA changed its 

practice and began processing requests 

for OSHA Forms 300, 300A, and 301 

under Exemption 4, a decision which 

the agency believed was supported by 

Argus Leader. Then, after several courts 

disagreed with OSHA’s interpretation, 

the agency reverted to its previous 

practice and began releasing the 

recordkeeping forms as before (see 87 

FR 18531 (discussing three adverse 

rulings in which courts rejected OSHA’s 

position that electronically submitted 

300A injury and illness data are covered 

under the confidentiality exemption in 

FOIA Exemption 4)). In other words, 

although OSHA has previously argued 

that some of the Form 300, 300A, and 

301 information should not be released 

under FOIA, the agency changed its 

posture to comport with adverse court 

rulings. Consequently, the agency is not 

persuaded by comments reiterating 

those court-rejected arguments. 

In making this decision, OSHA notes 

that many employers already routinely 

disclose information about the number 

of employees at an establishment. Since 

2001, OSHA’s recordkeeping regulation 

has required employers to record 

information about the average annual 

number of employees and total number 

of hours worked by all employees on the 

OSHA Form 300A. Section 1904.35 also 

requires employers to provide to 

employees, former employees, and 

employee representatives non-redacted 

copies of the OSHA Form 300A. In 

addition, § 1904.32(a)(4) requires 

employers to publicly disclose 

information about the number of 

employees and total number of hours 

worked through the annual posting of 

the 300A in the workplace for three 

months from February 1 to April 30. 

OSHA notes that it also received 

comments from interested parties 

arguing that OSHA should rescind the 

requirement to submit the 300A 

Summary Form to OSHA because that 

form contains confidential business 


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8 In this preamble, OSHA generally uses the 

phrases ‘‘information that could reasonably be 

expected to identify individuals directly’’ and 

‘‘information that could reasonably be expected to 

identify individuals indirectly,’’ rather than the 

broader term ‘‘personally identifiable information’’ 

(PII) to aid interested parties in understanding 

precisely what type of information OSHA is 

referring to in the discussion. The information 

referred to in both phrases can be considered PII. 

information (CBI) (e.g., Docket ID 0059). 

Such comments are reiterating legal 

arguments which courts rejected in the 

cases discussed above. Consequently, 

OSHA disagrees with the assertion that 

the 300A forms contain CBI and 

declines to make the requested change. 

6. Safeguarding Individual Privacy 

(Direct Identification) 

As explained above, OSHA’s decision 

to collect certain data from 

establishments’ Forms 300 and 301 

stems from its determination that OSHA 

will be able to use the data to improve 

worker safety and health. Similarly, the 

agency’s decision to publish some of the 

Forms 300 and 301 data it receives 

pursuant to this rulemaking flows from 

its expectation that it will receive FOIA 

requests requesting the data and its 

determination that such publication will 

result in many occupational safety and 

health benefits. Importantly, in the 

proposal, OSHA also preliminarily 

determined that these benefits would 

not be at the expense of employee 

privacy. In other words, OSHA 

preliminarily determined that it would 

be able to adequately protect 

information that could reasonably be 

expected to identify individuals 

directly—both in the collecting and 

possession of the data and in its 

decisions surrounding which 

information will be made publicly 

available. 

This question, i.e., whether OSHA 

would be able to adequately protect 

information that could reasonably be 

expected to identify individuals 

directly, was raised in the rulemaking 

that culminated in the issuance of the 

2016 final rule. It was also a major factor 

in OSHA’s decision to rescind the 

requirement for certain employers to 

electronically submit information from 

Forms 300 and 301. Specifically, in the 

preamble to the 2019 final rule, OSHA 

stated that it was rescinding that 

requirement ‘‘to protect sensitive worker 

information from potential disclosure 

under the Freedom of Information Act 

(FOIA)’’ and that ‘‘OSHA has always 

applied a balancing test to weigh the 

value of worker privacy against the 

usefulness of releasing the data’’ (84 FR 

383–384). The preamble to the 2019 

final rule also stated the agency’s belief 

at the time that OSHA could withhold 

the data from Forms 300 and 301 from 

publication under FOIA Exemptions 6 

and 7(C) (84 FR 386), but OSHA 

concluded at that time that the risk of 

disclosure of case-specific, 

establishment-specific, information 

could not be justified ‘‘given [the 

agency’s] resource allocation concerns 

and the uncertain incremental benefits 

to OSHA of collecting the data’’ (84 FR 

387). Moreover, in the preamble to the 

2019 final rule, OSHA characterized 

information such as descriptions of 

workers’ injuries and the body parts 

affected (Field F on Form 300, Field 16 

on Form 301), as ‘‘quite sensitive,’’ and 

stated that public disclosure of this 

information under FOIA or through the 

OSHA Injury Tracking Application 

(ITA) would pose a risk to worker 

privacy. It added that ‘‘although OSHA 

believes data from Forms 300 and 301 

would be exempt from disclosure under 

FOIA exemptions, OSHA is concerned 

that it still could be required by a court 

to release the data’’ (84 FR 383). 

As noted in the preamble to the 

proposed rule for this rulemaking, 

however, OSHA has determined those 

bases for the removal of the 300 and 301 

data submission requirement are no 

longer compelling. As to the risk to 

employee privacy, OSHA preliminarily 

determined that the proposed data 

collection would adequately protect 

information that could reasonably be 

expected to identify individuals 

directly, such as name and address, 

with multiple layers of protection. Of 

particular importance, OSHA explained 

that improvements in technology have 

decreased the resources needed by the 

agency to collect, analyze, and publish 

data from Forms 300 and 301 (87 FR 

18538). In addition, OSHA noted the 

2019 final rule took an overly expansive 

view of the term ‘‘personally 

identifiable information’’ and 

preliminarily determined that the 2019 

final rule’s position on such information 

was at odds with the agency’s usual 

practice of regularly releasing such data 

(87 FR 18539).8

A number of commenters expressed 

concern about OSHA’s reasoning for the 

collection and publication of Forms 300 

and 301 data in the preamble to the 

proposed rule (e.g., Docket ID 0038, 

0058, 0059, 0072, 0088, 0091). For 

example, NPGA argued that OSHA 

should evaluate the data it already 

collects from industries listed in 

appendix A to determine whether 

additional information collection will 

further workplace safety (Docket ID 

0050). As discussed extensively above 

in Section III.B.4 of this Summary and 

Explanation, OSHA has evaluated and 

used the 300A data it collects and 

anticipates that many workplace safety 

and health benefits will flow from the 

collection of the case-specific data that 

will be submitted by establishments 

pursuant to final 1904.41(a)(2). 

Other commenters focused on 

whether OSHA had adequately 

explained its change of opinion on 

whether the risk of collecting and 

publishing Form 300 and 301 data 

outweighs the benefits to worker safety 

and health. For example, the American 

Feed Industry Association (AFIA), the 

Coalition for Workplace Safety, and the 

Flexible Packaging Association all 

expressed disagreement with OSHA’s 

determination that the significant 

benefits of collecting establishmentspecific, case-specific data from the 300 

and 301 forms outweigh the slight risk 

to employee privacy (Docket IDs 0038, 

0058, 0091). On the other hand, the 

National Council for Occupational 

Safety and Health noted that OSHA 

needs ‘‘workplace injury and illness 

information . . . to work effectively,’’ 

and that it is ‘‘unlike almost any other 

government agency in charge of 

protecting public safety’’ in not 

receiving it already (Docket ID 0048). 

As discussed above, OSHA believes it 

has good reasons to collect and publish 

information from the covered 

establishments’ Forms 300 and 301 (see 

Section III.B.4 of this Summary and 

Explanation). And, as to the risk to 

employee privacy, OSHA has 

determined that it can implement 

multiple layers of protection described 

above to protect such information that 

could reasonably be expected to identify 

individuals directly, e.g., names and 

addresses. These protective measures 

include limiting the amount of 

information submitted by employers, 

reminding employers not to submit 

information that could reasonably be 

expected to identify individuals 

directly, withholding information from 

certain fields from publication, and 

using automated information technology 

to detect and remove any remaining 

information that could reasonably be 

expected to identify individuals 

directly. These measures will ensure 

that individual privacy is protected 

while key information on workplace 

hazards is disseminated to employees, 

employee representatives, and other 

interested parties. The following 

discussion explains how each layer of 

protection will help to ensure that 

individual privacy is protected. 

In the proposed rule, OSHA stated 

that its first measure to prevent the 

release of information that could 

reasonably be expected to identify 

individuals directly is to not collect 

most of that information in the first 


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place. Specifically, as discussed above 

and detailed in Section III.D of this 

Summary and Explanation, on 

§ 1904.41(b)(9), the proposal explained 

to establishments that employers did 

not need to submit the following 

information: (1) from the Form 300 Log: 

the employee name column (column B) 

and (2) from the Form 301 Incident 

Report: the employee name (Field 1), 

employee address (Field 2), name of 

physician or other health care 

professional (Field 6), and facility name 

and address if treatment was given away 

from the worksite (Field 7). OSHA 

explained that, since this information 

would not be collected, there would be 

no risk of publication disclosure of the 

data in the fields (87 FR 18538). 

Some interested parties submitted 

comments agreeing with OSHA’s logic 

on this point (e.g., Docket IDs 0030, 

0063, 0064). For example, Worksafe 

supported the proposed omission of 

employee name and address, physician 

names, and treatment facilities from 

collection and publication to protect 

individual privacy (Docket ID 0063). 

And AIHA commented that if PII is not 

collected by OSHA, there would be no 

need to redact submitted information 

(Docket ID 0030). Based on this 

feedback, and as discussed further in 

Section III.D of this Summary and 

Explanation, the final rule, like the 

proposed rule, does not allow 

employers to submit the above 

information. 

Again, as discussed in Section III.D of 

this Summary and Explanation, OSHA 

received comments from interested 

parties requesting that OSHA add other 

fields from Forms 300 and 301 to the list 

of fields which establishments are not 

required to submit under the final rule. 

These comments are addressed in detail 

in Section III.D, but OSHA also notes 

here that these interested parties’ true 

concerns appear to relate to whether 

OSHA can keep the collected data 

private (e.g., will OSHA have to release 

it in response to a FOIA request or 

otherwise release it accidentally, such 

as because an employee name or other 

direct employee identifier is contained 

in a narrative field) or whether the fields 

OSHA intends to release will allow 

third parties to indirectly identify 

employees. OSHA’s plan to mitigate 

each of these concerns is discussed in 

detail below. Thus, again as stated in 

the summary and explanation for 

§ 1904.41(b)(9), the agency declines to 

add further fields to the list of fields 

from establishments’ Forms 300 and 301 

which will not be collected under this 

final rule. 

As discussed in the proposal, OSHA’s 

second measure to prevent the release of 

information that could reasonably be 

expected to identify individuals directly 

relates to system design (87 FR 18538). 

Specifically, the agency explained that 

it planned to design its data collection 

system to provide extra protections for 

the personal information that 

establishments would be required to 

submit under the proposal. For 

example, OSHA stated that although the 

proposal would require employers to 

submit the employee’s date of birth from 

Form 301 (Field 3), it planned to design 

the data collection system to 

immediately calculate the employee’s 

age based on the date of birth entered 

and then store only the employee’s age, 

not the employee’s date of birth. OSHA 

also indicated its intent to post 

reminders to establishments to omit 

from the text fields they submit any 

information that could reasonably be 

expected to identify individuals 

directly, including names, addresses, 

Social Security numbers, and any other 

identifying information (see 87 FR 

18538). 

In addition to these proposed system 

design solutions, OSHA included a 

question in the proposal asking: ‘‘What 

additional guidance could OSHA add to 

the instructions for electronic 

submission to remind employers not to 

include information that reasonably 

identifies individuals directly in the 

information they submit from the textbased fields on the OSHA Form 300 or 

Form 301?’’ (87 FR 18546). OSHA 

received a number of responses to this 

question. For example, AIHA 

commented, ‘‘The electronic forms that 

OSHA provides should be designed to 

automatically exclude personal 

identifiers with an option to include the 

fields if required. The import side of the 

electronic form data could also block 

the importation of these fields’’ (Docket 

ID 0030). 

The Plastics Industry Association 

(PIA) commented that, although it does 

not believe the reminder would be ‘‘an 

acceptable remedy for inadequate 

software,’’ ‘‘[i]f OSHA were to proceed 

in this way. . ., OSHA should include 

the warning about not including 

personal identifiers in an online screen 

and require the submitter to click a 

confirmation that it has not included 

any personal identifiers before allowing 

the submitter to proceed to the data 

entry step.’’ PIA also stated that after the 

data entry is completed, the system 

should provide the employer with an 

opportunity to review the complete data 

submission, view how it would be 

presented to the public, and correct any 

inaccurate data or inadvertently 

included personal identifiers. After 

completing that step, PIA recommended 

that the submitter should have to click 

through a second screen that repeats the 

warning about not including personal 

identifiers and confirm that none were 

submitted before allowing the submitter 

to click on the final submit button. 

Finally, PIA said that ‘‘[b]efore requiring 

compliance with the contemplated data 

submission requirements for the OSHA 

Form 300 or Form 301 data, OSHA 

needs to have a qualified, independent 

body test and validate that the software, 

as integrated into the OSHA ITA, will 

reliably remove any personal 

identifiers’’ (Docket ID 0086). 

OSHA thanks the commenters who 

responded to the specific question on 

additional instructions to employers on 

not submitting information that 

identifies individuals. OSHA intends to 

take commenters’ specific responses 

into account when designing the 

expanded collection system. Based on 

those comments, OSHA will include 

reminders in the instructions for the 

data collection system for employers not 

to submit information that could 

reasonably be expected to identify 

individuals directly. OSHA agrees that 

is an effective way to reduce the amount 

of identifiable information collected by 

the system. In turn, that will decrease 

the likelihood that such information 

will be published. OSHA has routinely 

used these types of instructions, such as 

when it requests comments from 

interested parties in rulemakings such 

as this one (see the section on 

‘‘Instructions’’ above) and has found 

them to be an effective way to prevent 

the unintentional submission of 

information that could reasonably be 

expected to identify individuals 

directly. 

Also, OSHA notes that the current 

ITA manual data entry option already 

includes a screen that provides 

establishments with an opportunity to 

review the complete data submission of 

Form 300A information and to make 

edits or corrections as appropriate. 

OSHA plans to gather additional 

information from similar data collection 

systems and incorporate best practices 

in the final design for the collection 

system for data from the Forms 300 and 

301. Moreover, the Forms 300 and 301 

themselves already include a box with 

the warning, ‘‘Attention: This form 

contains information relating to 

employee health and must be used in a 

manner that protects the confidentiality 

of employees to the extent possible 

while the information is being used for 

occupational safety and health 

purposes.’’ In addition, the Form 301 

includes the warning, ‘‘Re [F]ields 14 to 

17: Please do not include any personally 

identifiable information (PII) pertaining 


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to worker(s) involved in the incident 

(e.g., no names, phone numbers, or 

Social Security numbers).’’ Fields 14–17 

do not ask for information likely to 

implicate privacy concerns, rather, they 

request information related to the injury 

or illness and how it occurred. OSHA 

believes these warnings are adequate 

and does not believe it is practical to 

develop a system that would remove 

remaining information between an 

establishment’s draft and final 

electronic submissions. Such systems 

take time to run (see, e.g., Docket ID 

0095), which would increase the time 

between employer submission (i.e., 

when the employer clicks on the 

‘submit’ or ‘upload’ button) and 

employer receipt of confirmation of 

successful submission, potentially 

creating concerns about whether the 

submission system is working. OSHA 

therefore believes that it is more 

appropriate to identify and remove any 

information that could reasonably be 

expected to identify individuals directly 

after submission and before publication, 

rather than during submission. 

Moreover, OSHA thinks its plans to 

protect such data will adequately 

protect worker privacy without adding 

this additional, impractical, potentially 

expensive (adding additional 

functionality to system) step. Finally, as 

to system design, OSHA’s system will 

not allow establishments to enter the 

fields that are excluded from collection 

under § 1904.41(b)(9). 

As discussed in the proposal, OSHA’s 

third measure to prevent the release of 

information that could reasonably be 

expected to identify individuals directly 

is to withhold certain information that 

is submitted to it from public 

disclosure. As noted above, OSHA will 

not collect employees’ names from 

either form, and will not collect 

employees’ addresses or the names or 

addresses of healthcare providers from 

Form 301. However, the proposed rule 

would have required (and the final rule 

actually requires) submission of some 

fields that contain personal information, 

including date of birth (which will be 

converted to age) (Field 3), date hired 

(Field 4), gender (Field 5), whether the 

employee was treated in the emergency 

room (Field 8), and whether the 

employee was hospitalized overnight as 

an in-patient (Field 9) (see 87 FR 

18539). OSHA proposed to collect that 

information, but not to make it public, 

and specifically requested comment on 

those proposals (see 87 at FR 18540). 

OSHA received a number of 

comments, virtually all from employers 

and their representatives, expressing 

concern over the potential risk to 

employee privacy presented by the 

proposed collection and potential 

publication of information from Forms 

300 and 301 that could reasonably be 

expected to identify individuals directly 

(e.g., Docket IDs 0055, 0056, 0057, 0062, 

0070, 0075, 0087, 0090, 0094). For 

example, the Precision Machined Parts 

Association (PMPA) commented, the 

Form 300 contains sensitive information 

that may be released under FOIA or 

‘‘through the inadvertent publication of 

information due to the agency’s reliance 

on automated de-identification systems 

to remove identifying information’’ or 

through the actions of ‘‘future 

administrations’’ (Docket ID 0055). The 

North American Die Casting Association 

(Docket ID 0056) and National Tooling 

and Machining Association and 

Precision Metalforming Association 

(Docket ID 0057) expressed similar 

concerns. Rep. Virginia Foxx (R-North 

Carolina) and Rep. Fred Keller (RPennsylvania) echoed that ‘‘there are no 

guarantees that this data may not be 

disclosed accidentally’’ (Docket ID 

0062). 

In contrast, commenters representing 

the workers whose injuries and illnesses 

are recorded on these forms did not 

share employers’ concerns about the 

potential publication of sensitive worker 

information. For example, the AFL–CIO 

stated that ‘‘The preamble to the 2016 

final rule included a comprehensive 

review of privacy issues raised by 

interested parties in requiring the 

collection of detailed injury and illness 

data and the final language was crafted 

to provide safeguards to protect the 

release of personally identifiable 

information (PII).’’ It explained the 

NPRM ‘‘has also considered PII and 

includes the same safeguards as the 

2016 final rule and discusses recent 

technological developments that 

increase the agency’s ability to manage 

information’’ (Docket ID 0061 (citing 87 

FR 18538–46)). In addition, AFL–CIO 

observed that the type of information 

that OSHA proposed to collect in this 

rulemaking ‘‘has already been shown by 

other agencies it can be collected and 

shared without violating confidentiality, 

such as by Mine Safety and Health 

Administration (MSHA)[, and a]ll data 

provided under the Freedom of 

Information Act and Form 300 and 

Form 301 provided to workers and their 

representatives upon request under 

§ 1904.35 provide detailed injury and 

illness information without releasing 

PII.’’ In summary, AFL–CIO argued that 

‘‘OSHA should maintain the same 

privacy safeguards in the rule it issued 

in 2016, also proposed in this preamble 

and used by other agencies to protect 

sensitive information’’ (Docket ID 0061). 

Similarly, the National Nurses Union 

affirmed that the NPRM ‘‘includes 

appropriate procedures to allow 

electronic data reporting and 

publication while protecting worker 

privacy.’’ To support this statement, it 

specifically referenced OSHA’s ‘‘plans 

to instruct employers to omit the fields 

on Form 301 that include personal 

information about the worker’’ and the 

agency’s plan to use data analysis tools 

to ensure that published data does not 

include any personal data that 

employers may accidentally submit. 

NNU concluded that ‘‘[t]he multiple 

measures to remove identifying 

information in the final rule will ensure 

that workers’ privacy is protected while 

key information on workplace hazards 

is shared’’ (Docket ID 0064). 

OSHA agrees with the latter 

commenters who stated that there are 

multiple measures in place to protect 

the privacy of individuals under this 

final rule. As discussed above, OSHA 

will not collect much of the information 

the commenters opposing this provision 

expressed concern about. In addition, 

the collection system will provide 

further safeguards and reminders. For 

example, OSHA will redact any 

identifying material from the portions of 

the forms it intends to publish (e.g., 

Fields 10 through 18 of Form 301). 

Further, and as discussed in more 

detail below in Section III.B.7 of this 

Summary and Explanation, OSHA will 

withhold from publication all of the 

collected information on the left side of 

the Form 301 (i.e., employee age, 

calculated from date of birth (Field 3), 

employee date hired (Field 4), and 

employee gender (Field 5), as well as 

whether the employee was treated in 

emergency room (Field 8) and whether 

the employee was hospitalized 

overnight as an in-patient (Field 9)) that 

could indirectly identify injured or ill 

employees when combined with other 

potentially available information. As 

noted in the proposal, this decision is 

consistent with OSHA’s handling of 

FOIA requests, in response to which the 

agency does not release data from Fields 

1 through 9. 

It is important to note that these forms 

have never been private. The 

information that OSHA will publish 

from the Forms 300 and 301 under this 

final rule is consistent with the 

information available in the agency’s 

longstanding records access provisions. 

The recordkeeping regulation at 29 CFR 

1904.35 allows current and former 

employees and their representatives 

access to the occupational injury and 

illness information kept by their 

employers, with some limitations. When 

an employee, former employee, personal 


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representative, or authorized employee 

representative asks an employer for 

copies of an employer’s current or 

stored OSHA 300 Log(s), the employer 

must give the requester a copy of the 

relevant OSHA 300 Log(s) by the end of 

the next business day (see 29 CFR 

1904.35(b)(2)(ii)). Cases labeled as 

‘‘privacy concern cases,’’ described 

below, are excluded from this 

requirement. Finally, an authorized 

representative is entitled, within 7 days 

of requesting them, to copies of the 

right-hand portion of all 301 forms for 

the establishment(s) where the agent 

represents one or more employees under 

a collective bargaining agreement. As 

discussed above, the right-hand portion 

of the 301 form contains the heading, 

‘‘Tell us about the case,’’ and includes 

information about how the injury or 

illness occurred, including the 

employee’s actions just prior to the 

incident, the materials and tools 

involved, and how the incident 

occurred, but should not include the 

employee’s name. No information other 

than that included on the right-hand 

portion of the Form 301 may be 

disclosed to the authorized employee 

representative. 

Put more simply, OSHA’s decision 

not to release the collected information 

on the left-hand side of the Form 301 

(i.e., age (calculated from date of birth), 

date hired, gender, whether the 

employee was treated in the emergency 

room, and whether the employee was 

hospitalized overnight as an in-patient) 

is consistent with records access 

provisions in OSHA’s recordkeeping 

regulation, § 1904.35(b)(2)(v)(A) and (B), 

which prohibit the release of 

information in fields 1 through 9 to 

individuals other than the employee or 

former employee who suffered the 

injury or illness and their personal 

representatives. 

To protect employee privacy, 

§ 1904.29(b)(7) requires the employer to 

enter the words ‘‘privacy concern case’’ 

on the OSHA 300 log, in lieu of the 

employee’s name, for certain sensitive 

injuries and illnesses: an injury or 

illness to an intimate body part or the 

reproductive system; an injury or illness 

resulting from a sexual assault; a mental 

illness; an illness involving HIV 

infection, hepatitis, or tuberculosis; 

needlestick injuries and cuts from sharp 

objects that are contaminated with 

another person’s blood or other 

potentially infectious material (see 

§ 1904.8 for definitions); and other 

illnesses, if an employee independently 

and voluntarily requests that their name 

not be entered on the log. In addition, 

under § 1904.29(b)(9), if employers have 

a reasonable basis to believe that 

information describing a privacy 

concern case may be personally 

identifiable even though the employee’s 

name has been omitted, they may use 

discretion in describing the injury or 

illness as long as they include enough 

information to identify the cause of the 

incident and the general severity of the 

injury or illness. Thus, contrary to the 

arguments of the Phylmar Regulatory 

Roundtable (PRR) (Docket ID 0094), 

OSHA’s recordkeeping rule 

distinguishes between PII and ‘‘sensitive 

PII,’’ which is deserving of even higher 

protection. OSHA’s definition of privacy 

concern cases is very similar to the DHS 

definition of ‘‘sensitive PII, which this 

comment urged OSHA to adopt (see 

https://www.dhs.gov/publication/ 

handbook-safeguarding-sensitivepersonally-identifiable-information, p. 

15). Although DHS and OSHA collect 

and maintain information for different 

purposes, the provisions in 29 CFR 

1904.29 addressing privacy concern 

cases protect details about injuries and 

illnesses that workers would consider 

sensitive to the same extent that the 

DHS rule does. Therefore, it is unlikely 

that information describing sensitive 

body parts will even be recorded by 

employers, much less subsequently 

submitted to OSHA under the data 

collection requirements of this final 

rule. 

Section 1904.29(b)(10) also protects 

employee privacy if an employer 

decides voluntarily to disclose the 

Forms 300 and 301 to persons other 

than those who have a mandatory right 

of access, by requiring employers to 

remove or hide employees’ names or 

other personally identifiable 

information before disclosing the forms 

to anyone other than government 

representatives, employees, former 

employees, or authorized employee 

representatives, with only a few 

exceptions. The exceptions include 

disclosure to authorized consultants 

hired by employers to evaluate their 

safety and health programs; where 

disclosure is necessary to process a 

claim for workers’ compensation or 

other insurance benefits; and disclosure 

to a public health authority or law 

enforcement entity for uses and 

disclosures for which consent, or 

authorization, or opportunity to agree or 

object is not required under the HIPAA 

privacy rule at 45 CFR 164.512. These 

exceptions are not relevant here or are 

discussed in Section III.B.10 of this 

Summary and Explanation, below. 

OSHA acknowledged the tension 

between the safety and health benefits 

of disclosing injury and illness records 

on the one hand, and the desire for 

privacy by the subjects of those records 

on the other, more than two decades 

ago. In OSHA’s 2001 final rule 

overhauling its recordkeeping system, it 

explained that while agency policy is 

that employees and their representatives 

with access to records should treat the 

information contained therein as 

confidential except as necessary to 

further the purposes of the Act, the 

Secretary lacks statutory authority to 

enforce such a policy against employees 

and representatives (see 66 FR 6056–57 

(citing, e.g., 29 U.S.C. 658, 659) (Act’s 

enforcement mechanisms directed 

solely at employers)). Thus, it has 

always been possible for employees and 

their representatives to make the 

recordkeeping data they have accessed 

public if they wish to do so (see 81 FR 

29684). Nonetheless, OSHA also 

concluded that the benefits to 

employees and their representatives of 

accessing the health and safety 

information on the recordkeeping forms 

carry greater weight than any particular 

individual employee’s possible right to 

privacy (see 66 FR 6055). Similarly, in 

the current rulemaking, OSHA 

continues to believe that the benefits of 

publication of injury and illness data at 

issue in this rule, discussed in detail 

above, outweigh the slight possibility 

that some employees could be identified 

from that data. There are even more 

exclusions from the data that will be 

made public under this rule than from 

the data available to employees and 

their representatives, and OSHA is 

unaware of any instances where an 

employee took the currently available 

recordkeeping information and used it 

to publicize the identity of an injured or 

ill worker. 

Some commenters, however, thought 

there should be a distinction between 

the information available to workers at 

an establishment and their 

representatives, and information 

available to the broader community. The 

U.S. Poultry & Egg Association, the 

Plastics Industry Association, and PRR 

all acknowledged the value of providing 

this information to those workers but 

argued that similar value is not 

provided by making the information 

available to others in the industry 

(Docket IDs 0053, 0086, 0094). OSHA 

disagrees. As explained in Section 

III.B.4 of this Summary and 

Explanation, OSHA believes that 

expanding access to such information 

on a public website will increase 

information about workplace hazards, 

create awareness of potential hazards for 

other members of an industry, provide 

useful information for potential and 

current employees, and allow all 


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establishments to address hazards more 

effectively. 

OSHA notes that it also received 

comments from interested parties 

expressing concern that courts might 

order the agency to release some of the 

data it collects and does not plan to 

release in this rulemaking, i.e., in a 

decision in a FOIA lawsuit. Based on its 

years of experience processing FOIA 

requests to which establishments’ Forms 

300 and 301 were responsive and 

redacting and releasing those forms, 

OSHA believes this outcome is highly 

unlikely. As noted in the proposal and 

discussed in more detail above, the 

agency often collects such forms during 

inspections. When releasing the forms 

to FOIA requesters, it has long redacted 

the information that it will collect as a 

result of this rulemaking but does not 

intend to publish. 

Specifically, as noted above and 

explained in the proposal, OSHA uses 

FOIA Exemption 7(C) to withhold from 

disclosure information that reasonably 

identifies individuals directly included 

anywhere on the three OSHA 

recordkeeping forms. And OSHA has 

used FOIA Exemption 6 to protect 

information about individuals in 

‘‘personnel and medical and similar 

files’’ when the disclosure of such 

information ‘‘would constitute a clearly 

unwarranted invasion of personal 

privacy’’ (5 U.S.C. 552(b)(6)). Together, 

these Exemptions clearly cover the 

information about which commenters 

are concerned (i.e., directly identifying 

information—concerns about indirect 

identifiers are discussed below) and 

OSHA is confident that it will continue 

to be able to withhold such information 

from public exposure under these 

Exemptions. 

In addition, OSHA notes that its plan 

to release only certain fields will also 

prevent accidental release of 

information that could reasonably be 

expected to identify individuals 

directly. Specifically, when OSHA 

publishes the information collected in 

this rulemaking, that release will by 

design exclude the fields that OSHA 

does not intend to release. This is 

similar to OSHA’s current practice as to 

the collection of information submitted 

with establishments’ Forms 300 A. 

Specifically, as part of the process for 

collecting information from the Form 

300A through the ITA, OSHA collects 

the name and contact information for 

the person associated with the account 

that is electronically submitting 

information from the Form 300A for a 

given establishment. OSHA also 

previously collected this information for 

establishment submissions of 

information from the Form 300A 

through the ODI. OSHA does not make 

this information public. Indeed, there is 

little risk that the agency might 

accidentally do so because the data 

release only includes information from 

the Form 300A. It plans to follow that 

same practice with the data from 

establishments’ Forms 300 and 301. 

OSHA’s fourth measure to prevent the 

release of information that could 

reasonably be expected to identify 

individuals directly is through the use 

of scrubbing technology. In the 

preamble to the 2019 final rule, OSHA 

stated that ‘‘de-identification software 

cannot fully eliminate the risk of 

disclosure of PII or re-identification of a 

specific individual and manual review 

of the data would not be feasible’’ (84 

FR 388). However, in the preamble to 

this proposed rule, OSHA preliminarily 

determined that this reason was no 

longer compelling. The agency 

explained that recent advancements in 

technology have reduced the risk that 

information that could reasonably be 

expected to identify individuals directly 

will be disclosed to the public. In 

addition, OSHA expected the improved 

technology used to protect sensitive 

employee data to reduce costs and 

resource-allocation issues for OSHA by 

eliminating the need to manually 

identify and remove information that 

could reasonably be expected to identify 

individuals directly from submitted data 

and by decreasing the resources 

required to analyze the data. OSHA 

added that, because of these 

improvements in automated deidentification systems, OSHA would 

now be better able to collect, analyze, 

and publish data from the 300 and 301 

forms, so the anticipated benefits of 

collecting the data would be more 

certain. The collection of case-specific 

data would allow the agency to focus its 

enforcement and compliance assistance 

resources based on hazard-specific 

information and trends, and to increase 

its ability to identify emerging hazards, 

at the establishment level. Accordingly, 

OSHA preliminarily believed that the 

significant benefits of collecting 

establishment-specific, case-specific 

data from the 300 and 301 forms would 

outweigh the slight risk to employee 

privacy (87 FR 18538). 

In the preamble to the proposed rule, 

OSHA specifically asked the following 

questions about automated deidentification systems: 

• What other agencies and 

organizations use automated deidentification systems to remove 

information that reasonably identifies 

individuals directly from text data 

before making the data available to the 

general public? What levels of 

sensitivity for the automated system for 

the identification and removal of 

information that reasonably identifies 

individuals directly from text data do 

these agencies use? 

• What other open-source and/or 

proprietary software is available to 

remove information that reasonably 

identifies individuals directly from text 

data? 

• What methods or systems exist to 

identify and remove information that 

reasonably identifies individuals 

directly from text data before the data 

are submitted? 

• What criteria should OSHA use to 

determine whether the sensitivity of 

automated systems to identify and 

remove information that reasonably 

identifies individuals directly is 

sufficient for OSHA to make the data 

available to the general public? 

• What processes could OSHA 

establish to remove inadvertentlypublished information that reasonably 

identifies individuals directly as soon as 

OSHA became aware of the information 

that reasonably identifies individuals 

directly? 

(87 FR 18546–47) 

Overall, there were no comments 

about the technical aspects of software 

to identify and remove information that 

could reasonably be expected to identify 

individuals directly. However, Worksafe 

commented, ‘‘Worksafe encourages 

OSHA to consult with technical experts. 

The Federal Government has two groups 

of experts that may be able to help: the 

U.S. Digital Service, a group of 

technology experts that assist agencies 

with pressing technology 

modernization, and 18F, a ‘technology 

and design consultancy’ housed within 

the General Services Administration. 

Technical experts should be able to 

advise on both the capabilities and 

limits of software to accomplish the sort 

of filtering that OSHA has proposed.’’ 

(Docket ID 0063). In addition, AIHA’s 

comment supported use of software to 

remove the information before 

submission: ‘‘If the personally 

identifiable information (PII) is not 

submitted, there would be no reason to 

have an automated system capable of 

removing the sensitive portions of the 

information. A unique identifier could 

be auto-generated by the system instead 

of utilizing PII’’ (Docket ID 0030). 

There were also comments that OSHA 

should select, identify, test, and 

demonstrate the results of deidentification software before 

proceeding with a final rule. For 

example, the Coalition for Workplace 

Safety commented, ‘‘OSHA has not yet 

conducted tests of [its privacy 


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9The inclusion of links to particular items or 

references to particular companies or products is 

not intended to reflect their importance, nor is it 

intended to endorse any views, or products, or 

services. 

10OSHA notes that the 2019 final rule 

contemplated two levels of manual case-by-case 

review of submitted data (84 FR 400). In this 

rulemaking, the agency finds that such review is not 

necessary. OSHA will guard against the publication 

of information which could directly identify or lead 

to the identification of workers using the measures 

discussed above, including the use of automated deidentification technology, supplemented with some 

manual review of the data. OSHA finds that these 

measures appropriately mitigate employee-privacyrelated concerns. 

scrubbing] technology on the Forms 300 

or 301,’’ and ‘‘OSHA acknowledges that 

the information it will collect and 

publish can still be used to identify 

individuals indirectly by combining it 

with other publicly available 

information.’’ The commenter also 

stated that OSHA ‘‘relies heavily on 

automated information technology to 

remove information that can directly 

identify individuals,’’ which is ‘‘not 100 

percent accurate so there will still be 

information made publicly available 

which can be used to directly identify 

individuals’’ (Docket ID 0058). 

Similarly, the National Association of 

Manufacturers commented, ‘‘The new 

online requirement places an 

unintentional burden on the agency that 

it may not be prepared to implement. 

The agency’s pledge to design a system 

that both abides by FOIA protocols and 

uses scrubbing technology to protect PII 

is problematic because such a system is 

unproven and untested at OSHA. The 

agency should demonstrate the 

effectiveness and stability of such a 

system before it proceeds further with 

this rulemaking. (Docket ID 0068). 

The Motor and Equipment 

Manufacturers Association commented, 

‘‘OSHA says it will also address this risk 

by using existing privacy scrubbing 

technology that it claims is capable of 

de-identifying information that 

reasonably identifies individuals 

directly (such as name, phone number, 

email address, etc.). However, OSHA 

made this same claim in the preamble 

to the 2016 injury and illness reporting 

rule, which the agency rejected in the 

preamble to the 2019 rescission rule 

. . . the Proposed Rule provides no 

details on the systems, software, or 

platforms that are available now but 

were not available at the time of the 

2019 rescission rule. In fact, all but one 

of the data scrubbing products 

identified by OSHA in the Proposed 

Rule were commercially available prior 

to the issuance of the rescission rule.’’ 

(Docket ID 0075). 

The Plastics Industry Association 

commented, ‘‘First, we are concerned 

that OSHA is referring to technically 

feasible automated software that could 

identify unique personal identifiers, but 

it is unclear whether it currently exists. 

Second, as the foregoing discussion 

from the January 19, 2001 preamble 

makes clear, there are likely to be many 

cases in which disclosure of a generic 

identifier or data point becomes a 

personal identifier in the context of 

those with knowledge of the site (e.g., 

‘‘only one woman works at the plant’’), 

a situation that we believe is beyond the 

shield that could be provided by any 

automated software. If OSHA had 

identified automated software capable 

of scrubbing unique personal identifiers, 

we would have expected OSHA to have 

provided an appropriate certification 

from a qualified testing organization 

that the software, after integration into 

the OSHA ITA, will accurately perform 

that function—possibly with some 

acceptable, minimal error rate. 

However, the following questions OSHA 

posed in the preamble suggest the 

necessary software is not yet available 

or, if it is, OSHA has not yet identified 

it and verified it would be adequate and 

within the agency’s budget.’’ (Docket ID 

0086). 

The Employers E-Recordkeeping 

Coalition (Coalition) commented, ‘‘The 

supposed improved technology to 

decrease the number of resources 

required to analyze this data has neither 

been presented to employers nor 

explained in the Notice of Proposed 

Rulemaking. The ‘‘scrubbing 

application’’ and automated information 

technology is neither tested or verified, 

nor is there any reason to consider it 

trustworthy. In fact, the proposed use of 

automated information technology to 

detect and remove information that 

reasonably identifies individuals is, 

OSHA admits, a ‘‘preliminary’’ finding 

that has not been vetted. (The point is 

further underscored by the Agency’s 

request for information on what 

proprietary software is out there that is 

capable of removing information that 

reasonably identifies individuals 

directly from text data).’’ (Docket ID 

0087). 

The agency disagrees with the 

comments that it is necessary to select, 

identify, test, and demonstrate the 

results of de-identification software 

before proceeding with a final rule. AI 

and machine learning—technologies 

that OSHA plans to use to detect, redact, 

and remove information that reasonably 

identifies individuals directly from 

structured and unstructured data 

fields—have advanced rapidly in recent 

years. Commercially available products 

that were introduced to the marketplace 

during the previous rulemaking process 

are now well-established. In the 

preamble to the proposed rule, OSHA 

listed and described three packages 

initially released between November 

2017 and March 2018, as well a fourth 

package that was released in March 

2021 (87 FR 18540). There has now been 

time for these packages to go through 

multiple updates, as well as for studies 

of comparative performance to be 

performed and published. For example, 

a study entitled ‘‘A Comparative 

Analysis of Speed and Accuracy for 

Three Off-the-Shelf De-Identification 

Tools’’ was published in May 2020 in 

AMIA Summits on Translational 

Science Proceedings; it compared three 

text de-identification systems that can 

be run off-the-shelf (Amazon 

Comprehend Medical PHId, Clinacuity’s 

CliniDeID, and the National Library of 

Medicine’s Scrubber). This study found 

that ‘‘No single system dominated all 

the compared metrics. NLM Scrubber 

was the fastest while CliniDeID 

generally had the highest accuracy’’ 

(Docket ID 0095). While the study 

concluded that ‘‘no perfect solution 

exists for text de-identification,’’ the 

system with the highest accuracy 

displayed 97% or greater precision 

(positive predicted value) and recall 

(sensitivity) for name, age, and address. 

The study mentions but does not 

compare two additional commercially 

available packages, and OSHA is aware 

of at least two more packages that have 

become commercially available since 

the publication of the proposed rule (see 

https://atlasti.com/ and https://privacyanalytics.com/health-data-privacy/ 

health-data-software/).9 The PRR agreed 

that available software is capable of 

‘‘scrap[ing] the data and remov[ing] 

direct identifiers’’ and supported the 

agency’s use of this technology (Docket 

ID 0094). 

As explained in the preamble to the 

proposed rule, OSHA intends to test 

multiple systems, including systems 

that are commercially available, and 

analyze the results carefully to select the 

best option to secure and protect 

information that could reasonably be 

expected to identify individuals 

directly. No option is expected to be 

100% effective. Therefore, OSHA will 

supplement the selected system with 

some manual review of the data, in 

order to ensure the system adequately 

protects such information.10

In summary, OSHA has determined 

that the agency will be able to 

adequately protect information that 

could reasonably be expected to identify 

individuals directly using the 

safeguards in this final rule and OSHA’s 

planned data collection system, in 

combination with warnings to 


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11The only report OSHA has received regarding 

actual reidentification of employees from data 

released by OSHA is discussed below. And, as 

noted in that discussion, it is not clear from the 

report that the information which caused the 

reidentification is comparable to the information 

that would be released pursuant to this rulemaking 

(e.g., the size of the establishment where the 

identified employees worked, the information that 

caused them to be reidentified). Given that 

uncertainty and the fact that OSHA has been 

releasing information from establishments’ Forms 

300 and 301 in response to FOIA requests for many 

years, this single report does not persuade the 

agency that the benefits of this rulemaking are 

outweighed by what OSHA believes is a minimal 

risk to employee privacy. 

employers and available automated 

information technology. OSHA also 

intends to consult with technical 

experts within the Federal Government, 

and agrees with the commenters who 

pointed out the relevance of MSHA’s 

data collection to OSHA’s proposed data 

collection (see Section III.B.8 of this 

Summary and Explanation). In addition, 

the use of the automated informational 

technology will significantly decrease 

the need for the type of resourceintensive manual reviews that OSHA 

was concerned about in the 2019 

rulemaking. OSHA does recognize the 

possibility that information could be 

released that could be used to identify 

an employee—this is a risk whenever 

any organization collects information 

that relates to individuals; however, 

OSHA intends to minimize this risk to 

the extent possible. The most reliable 

means of protecting individuals’ 

information is by not requiring its 

submission in the first instance; 

therefore, OSHA has determined that it 

will not collect fields like employee 

name as part of this expanded data 

collection (see Section III.D of this 

Summary and Explanation). Even if 

some minimal risk to privacy remains, 

however, OSHA finds that the benefits 

of collecting and publishing the data for 

improving safety and health outweigh 

that risk. 

7. Indirect Identification of Individuals 

In the proposal, OSHA acknowledged 

that the OSHA Forms 300 and 301 also 

contain fields that are not direct 

identifiers but that could act as indirect 

identifiers if released and combined 

with other information, such as job title 

on the Form 300, time employee began 

work on the Form 301, and date of death 

on the Form 301 (87 FR 18538). 

However, because this risk of reidentification already exists (given that 

OSHA has previously released such 

information in response to FOIA 

requests) and OSHA had not been made 

aware of widespread issues regarding 

employee reidentification, the agency 

preliminarily did not see any cause for 

concern.11 Nonetheless, some 

commenters argued that OSHA 

underestimated the possibility that 

personal information will be disclosed 

under this rule because third parties 

(such as data miners, the media, or even 

neighbors or acquaintances of an injured 

or ill worker) will be able to determine 

the identity of that worker. 

Some of these comments seem to 

assume that establishments will submit 

all information on the Forms 300 and 

301 to OSHA, something that has never 

been under consideration (see, e.g., 

Docket IDs 0007, 0013, 0062). Others, 

however, expressed concern that, even 

though OSHA intends to delete names 

and other identifiable information from 

the collected 300 and 301 data, enough 

information will remain in the 

published data for the public to identify 

injured or ill employees (Docket IDs 

0053, 0059, 0062, 0081, 0086, 0090). For 

example, the Motor and Equipment 

Manufacturers Association commented, 

‘‘concerns that individual data fields 

could be linked and used to identify 

injured employees—even if the 

information, standing alone, would not 

be considered traditional PII—were 

raised in prior rulemakings and were a 

part of OSHA’s justification for issuing 

the 2019 rescission rule’’ (Docket ID 

0075). 

Some such commenters expressed 

concerns about the publication of 

specific fields. For example, the Plastics 

Industry Association (PIA) expressed 

concern about the identification of 

workers through the publication of 

information about job title, department, 

and gender (Docket ID 0086). PIA also 

noted that ‘‘many employees have 

established social network accounts that 

list their name and position with their 

employer. Those profiles typically 

include the month and year the 

employee began working for the 

employer, a potentially reliable personal 

identifier that corresponds to the date of 

hire listed in field 4. Some unknown 

number of those profiles include birth 

dates, a potentially reliable personal 

identifier that corresponds to field 3’’ 

(Docket ID 0086). Consequently, PIA 

argued that OSHA should either exclude 

birth date and hiring date data from the 

collected information or reliably 

establish certain fields of collected 

information that are available only to 

OSHA and not the general public 

(Docket ID 0086). 

An anonymous commenter also stated 

that ‘‘columns C, D, E, and F of the 300 

form and [(job title, date of injury of 

onset of illness, where the event 

occurred, and the description of the 

injury or illness, parts of body affected, 

and object/substance that directly 

injured or made person ill)] and fields 

3, 11, 13, 14, 15, 16, and 17 of the 301 

form [(date of birth, date of injury or 

illness, time of event, and descriptions 

of what the employee was doing just 

before the incident occurred, what 

happened, what the injury or illness 

was, and what object or substance 

directly harmed the employee)] should 

be submitted but not made accessible by 

an member of the public on the 

internet’’ (Docket ID 0074). 

According to some of the commenters 

who expressed concern about indirect 

identification, the concern is 

particularly acute in smaller 

communities where more of the 

residents know each other. The U.S. 

Poultry and Egg Association 

commented, ‘‘We emphasize that many 

of our members operate establishments 

in small, rural locations. People know 

one another. Publishing this information 

and data will significantly impact 

employee privacy. And simply 

redacting the names of the persons 

affected will not prevent people— 

particularly in small towns—from 

knowing exactly who was injured and 

the extent of the injury.’’ (Docket ID 

0053). The North American Insulation 

Manufacturers Association and National 

Association of Home Builders made 

similar comments (Docket IDs 0081, 

0059). 

A related concern involves data 

companies that have developed tools 

that scrape data and link to relational 

databases. PRR commented that 

‘‘developers will be able to create tools 

that scrape [public injury and illness 

data] . . ., including job titles, facility 

locations, company names and facts 

from open narrative text fields’’ and, 

when used in combination with 

information obtained via other internet 

sources, ‘‘developers will be able to 

potentially re-identify individuals with 

a high degree of accuracy.’’ In addition, 

this commenter stated that developers 

will be able to use the same tools, 

including artificial intelligence 

algorithms, for a multitude of reasons 

including to develop targeted sales 

campaigns and recruitment strategies, 

which would not contribute to 

workplace safety (Docket ID 0094). 

As discussed in detail in Section 

III.B.4.c–h of this Summary and 

Explanation, other commenters 

supported the publication of the fields 

OSHA proposed to publish. For 

example, AFL–CIO agreed with the 

agency’s determination about what to 

publish and what to collect but not 

publish, noting that the agency 

‘‘carefully considered issues of worker 


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privacy’’ (Docket ID 0061). Similarly, 

the National Employment Law Project 

(NELP) stated that ‘‘adopting the 

proposed standard will not put 

individual privacy at risk’’ (Docket ID 

0049, Attachment 2). NELP cited to 

OSHA’s preliminary decision to 

withhold certain fields from disclosure 

as one of the reasons it believed that 

worker privacy was not at risk (Docket 

ID 0049, Attachment 2). 

Still other interested parties argued in 

favor of publication of such information. 

For example, NIOSH noted that 

information such as age and date of hire 

could be useful information to publish 

(Docket ID 0035, Attachment 2; see also 

Docket ID 0083 (agreeing with NIOSH’s 

comment)). However, NIOSH added that 

if cannot be released as part of the 

individual injury case records, it is still 

important for this data to be used in 

aggregate analysis of injuries on the 

industry and occupation levels’’ (Docket 

ID 0035, Attachment 2). NIOSH further 

requested that OSHA facilitate analysis 

of these data ‘‘under terms of data use 

agreements with other Federal or State 

government agencies (such as NIOSH or 

State health departments) (Docket ID 

0035, Attachment 2). The Council of 

State and Territorial Epidemiologists 

also generally supported the 

dissemination of collected information 

from existing records, stating that 

‘‘[m]aking this information broadly 

available is consistent with the growing 

recognition, predominant in the patient 

safety field, that transparency—sharing 

of information, including information 

about hazards—is a critical aspect of 

safety culture (Docket ID 0040). Further, 

again as discussed in Section III.B.4.c– 

h of this Summary and Explanation, 

commenters argued that the publication 

of the data OSHA proposed to make 

public will be beneficial to employers, 

employees, Federal and State agencies, 

researchers, workplace safety 

consultants, members of the public and 

other interested parties. 

Having considered the comment on 

these issues, OSHA recognizes the 

concerns of interested parties who are 

concerned about publication of select 

information from establishments’ Forms 

300 and 301, but believes these risks are 

mitigated by decisions OSHA has made 

with regard to which data should be 

collected and published and other 

safeguards that OSHA will be observing 

(e.g., only requiring larger 

establishments to submit data). First, as 

noted above, OSHA has decided to 

collect but not publish five fields from 

Form 301 that it has decided contain 

information about personal 

characteristics, employment history, 

and medical treatment: Age (calculated 

from date of birth in field 3), date hired 

(field 4), gender (field 5), whether the 

employee was treated in the emergency 

room (field 8), and whether the 

employee was hospitalized overnight as 

an in-patient (field 9). The agency 

believes it is appropriate to refrain from 

releasing these data because of privacy 

concerns and the potential risk of 

indirect individual identification raised 

by commenters regarding the 

publication of this information. As 

noted above, this decision is consistent 

with the manner in which OSHA 

handles responses to FOIA requests, as 

well as 29 CFR 1904.35(b)(2)(v)(A)–(B). 

However, as discussed below in 

Section III.D of this Summary and 

Explanation, OSHA still finds that there 

is a significant safety and health benefit 

with the collection and analysis of 

information about these fields. For 

example, in some cases, young workers 

lack necessary training and experience 

and may be assigned to more hazardous 

tasks, subjecting them to higher rates of 

injury or illness in some industries and 

occupations. Likewise, it is important 

for OSHA to know whether older 

workers are more vulnerable to certain 

types of injuries and illnesses. Also, 

information about gender is valuable to 

OSHA in determining whether men or 

women face greater risk to certain 

workplace hazards (e.g., injury victims 

of intentional attacks in the workplace 

are disproportionately likely to be 

women). In addition, information about 

visits to emergency rooms and hospitals 

assists OSHA in tracking the type and 

severity of employee injuries and 

illnesses in specific industries and 

occupations. Further, OSHA could use 

these data in combination with other 

available data, such as Severe Injury 

Reporting data, to assess data accuracy 

and reporting compliance. 

Although OSHA has found that it is 

not appropriate to publish the five fields 

from Form 301, the agency notes and 

will consider NIOSH’s suggestion that 

those fields could be shared with 

NIOSH and other government agencies 

outside of this rulemaking utilizing 

appropriate privacy protections, e.g., via 

a written data sharing agreement with 

robust privacy protections. 

As to the fields that OSHA plans to 

collect and publish (e.g., job title), the 

agency believes that the final rule 

appropriately protects against reidentification of individuals via the 

release of this information. Specifically, 

the final rule requires only 

establishments with 100 or more 

employees, in certain designated, highhazard industries, to electronically 

submit information from their Forms 

300 and 301. OSHA believes it is less 

likely that employees in these larger 

establishments would be identified 

based on the limited recordkeeping data 

posted on the public website, even in 

small towns. Moreover, in the vast 

majority of cases, at establishments with 

100 or more employees, OSHA believes 

it is unlikely that anyone other than 

employees at the workplace would be 

able to use the collected and published 

data from the Forms 300 and 301 to 

identify the injured or ill employee. For 

example, if only one individual 

performs a certain job at an 

establishment with 100 or more 

employees, OSHA believes that it is 

highly unlikely that anyone other than 

employees with specific knowledge of 

that workplace would be able to use the 

remaining information from the Forms 

300 and 301 to identify that employee. 

As discussed above, employees at the 

worksite already have access to 

information from the Forms 300 and 

301, and thus publication of these forms 

would not add any risk of individual 

employee identification. 

In fact, even though OSHA has 

released redacted Forms 300 and 301 in 

response to FOIA requests for more than 

a decade (see the discussion of the 

Freedom of Information Act in Section 

III.B.5 of this Summary and Explanation 

for more details), only one commenter 

claimed knowledge of any employees 

being identified through OSHA data. 

Specifically, the Coalition asserted that 

several members of the Coalition have 

had third parties, including the media, 

contact their employees about their 

personal and medical information, 

including information related to 

COVID–19, because their identities were 

discerned from information provided to 

and released by OSHA (Docket ID 0087). 

The Coalition’s comment did not 

specify the size of the establishments at 

which the employees contacted by the 

third parties worked (i.e., whether the 

establishments employed fewer than 

100 employees), how the third parties 

used the information OSHA released to 

identify those employees, or whether 

there is any reason to believe that the 

employees’ identities were not already 

publicly known. It also does not specify 

whether the employee identities became 

known through the release of the injury 

and illness data at issue in this 

rulemaking (i.e., Forms 300 and 301), 

another document in the released 

portion of the inspection files, or a 

combination of the two. Consequently, 

based on the information submitted by 

this commenter, it is impossible to tell 

whether the third parties would have 

been able to identify these ‘‘several’’ 

employees using the case-specific 

information OSHA plans to collect and 


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release in this rulemaking—information 

that will be submitted by relatively large 

establishments. 

Nevertheless, OSHA takes the issue of 

employee privacy and the possibility of 

employee re-identification very 

seriously. As discussed in Section 

III.B.1 of this Summary and 

Explanation, OSHA chose the 100- 

employee threshold for the collection of 

case-specific data, in part, to minimize 

the burden on small businesses and to 

protect the identity of employees by 

only requiring relatively large 

businesses to submit their data. It 

similarly has carefully considered 

which fields from these forms should be 

collected and released with employee 

re-identification in mind. With these 

safeguards, OSHA believes the risk of 

indirect employee identification is 

minimal. 

Moreover, as discussed throughout 

this preamble, OSHA finds that the 

benefits to worker and safety and health 

that stem from the release of this 

information outweigh any privacy risks. 

For example, as to job title specifically, 

researchers will be able to use this 

information to analyze and identify 

specific occupations associated with 

particular types of injuries and illnesses 

in the workplace. Also, publication of 

such data will allow the public to better 

understand and evaluate the injury and 

illness rates for certain jobs, tasks, and/ 

or occupations. Potential employees 

will be able to review published data to 

assess the workplace injury/illness 

experience of a given job at a particular 

facility. In turn, employers will focus 

their safety and health efforts to reduce 

the number of injuries and illnesses 

associated with certain jobs as a way to 

attract well-qualified job candidates. 

Similarly, the publication of 

information about job title will assist 

researchers in analyzing and identifying 

injury and illness trends for specific 

jobs, tasks, or occupations. Better 

analysis of these data should result in 

the development of improved mitigation 

strategies and result in the reduction of 

injuries and illnesses for certain jobs. 

Similarly, OSHA believes that the 

publication of the other fields it 

proposed to publish will have safety 

and health benefits that outweigh any 

small risks to worker privacy. For 

example, time employee began work 

will help OSHA, employers, 

researchers, and others assess the 

relationship between workplace safety/ 

health and known risks such as shift 

work and fatigue. 

8. The Experience of Other Federal 

Agencies 

As noted above, OSHA’s belief that it 

can collect and publish the data at issue 

without harm to privacy or other 

interests is supported by the experience 

of its sister agency, the Mine Safety and 

Health Administration (MSHA). Under 

30 CFR part 50, MSHA requires mine 

operators to submit an incident report 

(Mine Accident, Injury and Illness 

Report, MSHA Form 700–1) within ten 

working days for every occupational 

injury, illness, or near-miss incident 

occurring at a mine. The MSHA Form 

700–1 includes 27 mandatory fields, 

including a description of the incident, 

the nature of the injury or illness, the 

job title of the affected worker, and the 

employee’s work activity at the time of 

the injury or illness. Under this 

reporting system, mine operators use an 

authentication code and password to 

securely submit establishment-specific, 

case-specific, injury and illness data 

online. MSHA maintains the injury and 

illness information on its website and 

the information is made available to the 

public through downloadable format. 

The submitted information is reviewed 

by at least three approving authorities, 

and PII is redacted, before it is uploaded 

to the database for public release. This 

system has been in place since 1999 

with no adverse results. 

Several commenters also suggested 

that MSHA’s experience supports 

OSHA’s plan to publish redacted 

information on occupational injuries 

and illnesses (e.g., Docket IDs 0049, 

0061, 0063). The National Employment 

Law Project commented, ‘‘MSHA keeps 

and has kept for decades the PII on the 

form protected. Clearly, MSHA’s system 

demonstrates that the Department of 

Labor can post case specific data 

without releasing PII’’ (Docket ID 0049). 

The AFL–CIO recommended that OSHA 

collaborate with MSHA, NIOSH and 

other agencies ‘‘with a demonstrated 

commitment and capability to collect 

and utilize injury and illness data, while 

protecting employee privacy, and 

institute similar procedures for the 

collection, sharing and utilization of 

injury and illness data reported on the 

OSHA Form 300 and Form 301’’ (Docket 

ID 0061). Worksafe submitted similar 

comments and added that OSHA’s 

proposed rule is quite modest compared 

to the reporting requirements for 

employers in the mining industry 

(Docket ID 0063). OSHA has been and 

expects to continue consulting with 

MSHA, NIOSH, and other Federal 

agencies while implementing the injury 

and illness data collection and 

publication requirements of this final 

rule. 

Finally, on this topic, OSHA notes 

that MSHA is not alone in its release of 

information that theoretically could 

identify individuals indirectly if 

released and combined with other 

information. The Federal Railroad 

Administration (FRA) posts Accident 

Investigation Reports filed by railroad 

carriers under 49 U.S.C. 20901 or made 

by the Secretary of Transportation under 

49 U.S.C. 20902; in the case of highwayrail grade crossing incidents, these 

reports include personally identifiable 

information (age and gender of the 

person(s) in the struck vehicle). In 

addition, the Federal Aviation 

Administration (FAA) posts National 

Transportation Safety Board (NTSB) 

reports about aviation accidents. These 

reports include information about 

employees, including job history and 

medical information. Again, OSHA is 

not aware of any issues related to the 

release of such information, a lack that 

OSHA believes supports its decision to 

release the relevant information 

collected in this rulemaking. 

9. Risk of Cyber Attack 

Cyber security is another issue that 

OSHA has considered in thinking 

through how to protect the Form 300 

and 301 information safe. OSHA 

received comments on this issue in the 

rulemaking that led to the 2016 final 

rule and, after considering those 

comments, the agency disagreed with 

those commenters who suggested that 

OSHA would not be able to protect 

employee information (81 FR 29633). In 

so doing, OSHA observed that ‘‘[a]ll 

federal agencies are required to establish 

appropriate administrative and 

technical safeguards to ensure that the 

security of all media containing 

confidential information is protected 

against unauthorized disclosures and 

anticipated threats or hazards to their 

security or integrity’’ (81 FR 29633). 

Similarly, in the 2019 final rule, OSHA 

again received and considered 

comments on the issue of cyber security, 

ultimately finding that ‘‘the ITA data 

meet the security requirements for 

government data’’ (84 FR 388). In 

addition, the agency did ‘‘not find that 

collecting the data from Forms 300 and 

301 would increase the risk of a 

successful cyber-attack’’ (84 FR 388). 

However, the agency noted that some 

risk of cyberattack and subsequent data 

risk remained (84 FR 388). And OSHA 

Stated that it shared concerns of some 

commenters about how having 

thousands of businesses upload a large 

volume of additional data could 


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generally increase risk for cyber-security 

issues (84 FR 388). 

OSHA received some comments about 

cyber security in response to the NPRM 

in this rulemaking. For example, the 

U.S. Poultry & Egg Association 

commented, ‘‘On August 14, 2017, the 

U.S. Department of Homeland Security 

notified OSHA of a security breach of 

the recently activated online incident 

reporting page. While the full extent of 

this breach is unknown, it is an 

unsettling circumstance for employers 

that a security incident occurred and to 

learn of the occurrence of a security 

breach significant enough to shut down 

the reporting system.’’ (Docket ID 0053). 

The Coalition submitted a comment 

that addressed the same potential 

security breach: ‘‘As OSHA is well 

aware, industry concerns about worker 

privacy breaches came to fruition 

shortly after the ITA was rolled-out. As 

determined by the Department of 

Homeland Security (‘‘DHS’’), a serious 

potential breach of the ITA system 

occurred . . . virtually immediately 

after the ITA system had gone live. 

Although the security issues associated 

with that breach have since been 

resolved, industry is fearful of 

submitting hundreds of thousands of 

pieces of personal data with personal 

identifier information (‘‘PII’’) on a portal 

that has already had suspicious activity 

that warranted DHS scrutiny. As OSHA 

notes, the ITA episode demonstrated 

that such large data collection will 

inevitably encounter malware and may 

even incentivize cyber-attacks on the 

Department of Labor’s (‘‘DOL’’)’s IT 

system. We are aware of OSHA’s view 

that, since 2019, the DOL’s 

cybersecurity protective software has 

improved. However, the cyber security 

risk of employees’ highly confidential 

and personal medical information being 

hacked and published, or used in other 

even more nefarious ways, has become 

even more serious since the Agency 

decided it was too risky to collect 300 

and 301 level data a few years ago. 

Since 2019, the threat and 

sophistication of cybersecurity attacks 

has also grown immensely, outpacing 

the development of cybersecurity 

protections. The lack of confidence in 

protecting data has never been greater in 

this country.’’ (Docket ID 0087). 

In response, OSHA notes that an 

investigation of the 2017 incident by the 

Department of Labor’s IT team found 

there was no breach of data. The ITA 

detected a virus on a user’s computer 

and blocked that user from accessing the 

system, as it was designed to do. In 

other words, the ITA’s security system 

functioned properly and there was no 

security breach. No other cyber-security 

issues have been reported. In addition, 

as explained above, the agency’s 

decision to change course on collecting 

information from Forms 300 and 301 

was not based on cyber-security 

concerns. 

This successful performance of the 

ITA’s security system in this attempted 

breach underscores OSHA’s finding in 

2016: although here is some risk cyber 

attack, the Department of Labor’s 

systems are prepared to defend against 

such attacks. As explained in the 2016 

final rule, regardless of the category of 

information, all Department of Labor 

agencies must comply with the Privacy 

and Security Statement posted on DOL’s 

website. As part of its efforts to ensure 

and maintain the integrity of the 

information disseminated to the public, 

DOL’s IT security policy and planning 

framework is designed to protect 

information from unauthorized access 

or revision and to ensure that the 

information is not compromised 

through corruption or falsification. 

Consequently, in this rulemaking, 

OSHA finds that the data that will be 

collected in compliance with this final 

rule will be protected from cyber attack 

in accordance with the appropriate 

government standards. 

10. The Health Information Portability 

and Accountability Act (HIPAA) 

OSHA also received comments from 

some interested parties expressing 

concern about how the proposed rule 

would relate to the Health Insurance 

Portability and Accountability Act of 

1996 (HIPAA), Public Law 101–191 

(e.g., Docket IDs 0007, 0013, 0059, 

0082). For example, two interested 

parties commented that the OSHA 

Forms 300 and 301 include personal 

and private information about an 

employee’s health and wellness, and 

that requiring the submission of such 

information to OSHA will place 

employers in legal liability due to 

HIPAA restrictions (Docket IDs 0007, 

0013). But as explained below, HIPAA’s 

implementing regulations specifically 

allow employers to release workplace 

injury and illness data to OSHA. 

The U.S. Department of Health and 

Human Services (HHS) implements 

HIPAA through regulations at 45 CFR 

parts 160 and 164, known as the HIPAA 

‘‘Privacy Rule.’’ The Privacy Rule 

protects the privacy of individually 

identifiable health information (referred 

to as ‘‘protected health information’’ or 

‘‘PHI’’) maintained or transmitted by 

HIPAA-covered entities and their 

business associates. The term ‘‘covered 

entity’’ includes health plans, health 

care clearing houses, and health care 

providers who transmit health 

information in electronic form (see 45 

CFR 160.104). OSHA is not a covered 

entity for purposes of the Privacy Rule, 

so the use and disclosure requirements 

of the Privacy Rule do not apply to 

OSHA. 

The HIPAA Privacy Rule also 

excludes certain individually 

identifiable health information from the 

definition of PHI. For example, 

employment records held by a covered 

entity in its role as an employer are not 

PHI and the HIPAA Privacy Rule does 

not prohibit the disclosure of health 

information contained in employment 

records to OSHA (see 45 CFR part 

160.103). Even for information that 

qualifies as PHI, the Privacy Rule 

specifically permits disclosures of PHI 

without an individual’s authorization 

for certain purposes, including when 

they are required to do so by another 

law (see 45 CFR 164.512(a)). HHS has 

made clear that this provision 

encompasses an array of binding legal 

authorities, including statutes, agency 

orders, regulations, or other Federal, 

State, or local governmental actions 

having the effect of law (see 65 FR 

82668). Similarly, a covered entity may 

also disclose PHI without an 

individual’s authorization to ‘‘public 

health authorities’’ and to ‘‘health 

oversight agencies’’ (see 45 CFR parts 

164.512(b) and (d)). The preamble to the 

Privacy Rule issued in 2000 specifically 

mentions OSHA as an example of both 

(see 65 FR 82492, 82526). Finally, the 

Privacy Rule also permits a covered 

entity who is a member of the 

employer’s workforce and provides 

healthcare at the request of an employer, 

to disclose to employers protected 

health information concerning workrelated injuries or illnesses, or workrelated medical surveillance in 

situations where the employer has a 

duty under the OSH Act, the Federal 

Mine Safety and Health Act, or under 

similar State law to keep records on or 

act on such information. Accordingly, 

covered entities generally may not 

restrict or refuse to disclose PII required 

by an OSHA standard or regulation 

based on the provisions of the Privacy 

Rule. 

OSHA also received comments from 

interested parties that, while 

recognizing that HIPAA does not apply 

to the information disclosures at issue 

here, argued that OSHA ‘‘should 

examine the principles of HIPPA in 

determining how to proceed—or not 

proceed—with this rule’’ (Docket ID 

0059; see also Docket ID 0082). For 

example, NAHB asserted ‘‘HIP[A]A 

recognizes the legitimate privacy 

interests that individuals have with 

respect to their own health information. 


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HIP[A]A also recognizes that aspects of 

a person’s health record can serve as an 

identifier of a person under certain 

circumstances. And HIP[A]A recognizes 

that this is not acceptable’’ (Docket ID 

0059). NAHB further argued that ‘‘[t]he 

procedure for OSHA reviewing this 

should have been thoroughly 

considered and addressed in the 

proposed regulation; it was not’’ (Docket 

ID 0059). 

OSHA agrees with commenters who 

suggested that the agency consider 

applying the principles set forth in the 

Privacy Rule for the de-identification of 

health information. Health information 

is individually identifiable if it does, or 

potentially could, identify the 

individual. As explained by 

commenters, once protected health 

information is de-identified, there are 

no longer privacy concerns under 

HIPAA. Again, it is OSHA’s policy 

under the final rule not to release any 

individually identifiable information. 

As discussed elsewhere in this 

document, procedures are in place to 

ensure that individually identifiable 

information, including health 

information, will not be publicly posted 

on OSHA’s website. 

However, OSHA disagrees with 

NAHB’s claim that ‘‘OSHA has provided 

no thought regarding what types of 

information it will or should redact to 

protect employees, except to mention 

that it may redact names and other 

information that it would otherwise 

need to redact under the Freedom of 

Information Act’’ or that the agency’s 

procedure was not ‘‘thoroughly 

considered and addressed’’ in the 

proposal (Docket ID 0059). As reiterated 

above, the proposal specified which 

fields the agency proposed to collect 

and what subset of that collected 

information it planned to release. It also 

detailed its plans to ensure that it did 

not collect certain data (e.g., by not 

requiring the submission of certain data 

fields and designing the system to 

remind establishments not to submit 

certain data) and ways to protect the 

data it does receive (e.g., carefully 

choosing which fields would be 

publicly released and using scrubbing 

technology to ensure that data contained 

in the fields to be released did not 

unintentionally include information 

which could reasonably be expected to 

identify individuals directly). In sum, 

contrary to NAHB’s assertion, the 

agency has carefully considered how to 

protect information that could 

reasonably be expected to identify 

individuals directly and explained its 

plans and thinking in the proposal. 

11. The Americans With Disabilities Act 

(ADA) 

OSHA also received comments related 

to the Americans with Disabilities Act 

(ADA). Specifically, in their comment, 

the Seventeen AGs noted that ‘‘if a 

certain type of occupational injury 

regularly leads to ongoing disability in 

a particular industry or place of work,’’ 

the case-specific data that would be 

collected and published under the 

proposed rule would allow States to 

‘‘explore what accommodations those 

employers provide, for example, 

whether affected workers have been 

placed in appropriate positions with 

reasonable accommodations as required 

under the [(ADA)] and similar State 

laws’’ (Docket ID 0045). OSHA agrees 

with this commenter that this kind of 

inquiry is one of the many benefits that 

will stem from this final rule. 

The Seventeen AGs’ mention of the 

ADA raises the question of its 

applicability to this final rule, a 

question that has been raised in the 

rulemakings culminating in the 2016 

and 2019 final rules (see 81 FR 29665– 

66; 84 FR 387). At various times as 

OSHA has considered whether to collect 

and publish information from 

establishments’ Forms 300 and 301 (and 

300A, as well), commenters have raised 

concerns about whether the ADA would 

prohibit establishments from releasing 

health and disability-related 

information to OSHA. It would not. The 

ADA would permit the collection by 

employers of such information. 

By its terms, the ADA limits 

disability-related inquiries and medical 

examinations of job applicants or 

employees and requires confidentiality 

for medical information obtained from 

any such inquiries or medical 

examinations. However, the ADA also 

states that ‘‘nothing in this Act shall be 

construed to invalidate or limit the 

remedies, rights, and procedures of any 

federal law’’ (see 29 U.S.C. 12201(b)). In 

enacting the ADA, Congress was aware 

that other Federal standards imposed 

requirements for testing an employee’s 

health, and for disseminating 

information about an employee’s 

medical condition or history, 

determined to be necessary to preserve 

the health and safety of employees and 

the public (see H.R. Rep. No. 101–485 

pt. 2, 101st Cong., 2d Sess. 74–75 

(1990), reprinted in 1990 U.S.C.C.A.N. 

356, 357 (noting, e.g., medical 

surveillance requirements of standards 

promulgated under the OSH Act and the 

Federal Mine Safety and Health Act, 

and stating ‘‘[t]he Committee does not 

intend for [the ADA] to override any 

medical standard or requirement 

established by federal . . . law . . . that 

is job-related and consistent with 

business necessity’’); see also 29 CFR 

part 1630 App.). The ADA yields to the 

requirements of other Federal safety and 

health standards and regulations. The 

implementing regulation, codified at 29 

CFR 1630.15(e), explicitly states that an 

employer’s compliance with another 

Federal law or regulation may be a 

defense to a charge of violating the ADA 

(see Enforcement Guidance on 

Disability-Related Inquiries and Medical 

Examinations of Employees under the 

ADA | U.S. Equal Employment 

Opportunity Commission (eeoc.gov) 

Enforcement Guidance on DisabilityRelated Inquiries and Medical 

Examinations of Employees under the 

ADA | U.S. Equal Employment 

Opportunity Commission (eeoc.gov) 

(available at: https://www.eeoc.gov/ 

laws/guidance/enforcement-guidancedisability-related-inquiries-and-medicalexaminations-employees), at Question 

21). The ADA recognizes the primacy of 

other Federal laws including Federal 

safety and health regulations; therefore, 

such regulations, including mandatory 

OSHA recordkeeping requirements and 

disclosure requirements, pose no 

conflict with the ADA (cf. Albertsons, 

Inc. v. Kirkingburg, 527 U.S. 555, (1999) 

(‘‘When Congress enacted the ADA, it 

recognized that federal safety and health 

rules would limit application of the 

ADA as a matter of law.’’)). 

It also is worth noting that the 

information in the OSHA injury and 

illness records is similar to that found 

in workers’ compensation forms and 

may be obtained by employers by the 

same process used to record needed 

information for workers’ compensation 

and insurance purposes. The Equal 

Employment Opportunity Commission 

(EEOC), the agency responsible for 

administering Title I of the ADA, which 

addresses employment, recognizes a 

partial exception to the ADA’s strict 

confidentiality requirements for medical 

information regarding an employee’s 

occupational injury or workers’ 

compensation claim (see generally 29 

CFR 1630.15(e) and EEOC Enforcement 

Guidance: Workers’ Compensation and 

the ADA (available at https://

www.eeoc.gov/laws/guidance/ 

enforcement-guidance-workerscompensation-and-ada), (September 3, 

1996)). For these reasons, OSHA does 

not believe that the mandatory 

submission and publication 

requirements in § 1904.41 of this final 

rule conflict with the confidentiality 

provisions of the ADA. 


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12. The Privacy Act 

The Plastics Industry Association 

commented that a failure by OSHA to 

exclude or reliably redact all personal 

identifiers and personally identifiable 

medical information would violate the 

Privacy Act of 1974, 5 U.S.C. 552a, as 

well as other privacy laws (Docket ID 

0086). 

In response, OSHA notes that the 

Privacy Act is a Federal statute that 

establishes a code of fair information 

practices that governs the collection, 

maintenance, use, and dissemination of 

personal identifiable information by 

Federal agencies. The Privacy Act only 

applies to records that are located in a 

‘‘system of records.’’ As defined in the 

Privacy Act, a system of records is ‘‘a 

group of any records under the control 

of any agency from which information 

is retrieved by the name of the 

individual or by some identifying 

number, symbol, or other identifying 

particular assigned to the individual’’ 

(see 5 U.S.C. 552a(a)(5)). Because OSHA 

injury and illness records are retrieved 

neither by the name of an individual, 

nor by some other personal identifier, 

the Privacy Act does not apply to OSHA 

injury and illness recordkeeping 

records. As a result, the Privacy Act 

does not prevent OSHA from posting 

recordkeeping data on a publicly 

accessible website. However, OSHA 

again wishes to emphasize that, 

consistent with the applicable 

exemptions under FOIA, the agency 

does not intend to post personally 

identifiable information on the website. 

13. Privacy Impact Assessment 

Section 208 of the E-Government Act 

requires Federal agencies to conduct a 

Privacy Impact Assessment when 

developing or procuring new 

information technology involving the 

collection, maintenance, or 

dissemination of information in 

identifiable form or when making 

substantial changes to existing 

information technology that manages 

information in identifiable form. In the 

preamble to the proposed rule, OSHA 

stated that it expected to complete a 

Privacy Impact Assessment before 

issuing the final rule (87 FR 18540). 

Several commenters supported this step 

(Docket IDs 0058, 0068, 0072, 0077, 

0094). 

OSHA now has completed a Privacy 

Impact Assessment for this final rule 

which is available at https://

www.dol.gov/agencies/oasam/centersoffices/ocio/privacy (Docket ID 0107). In 

the Privacy Impact Assessment, OSHA 

determined that the safeguards and 

controls described in this preamble will 

adequately protect the collected and 

published data addressed in the final 

rule. 

14. Other Issues Related to OSHA’s 

Proposal To Require the Submission of 

and Then Publish Certain Data From 

Establishments’ Forms 300 and 301 

a. Miscellaneous Comments 

OSHA received a variety of other 

comments related to its proposal to 

require certain establishments to submit 

certain data from their Forms 300 and 

301 and its plan to then publish a subset 

of that data. For example, some 

interested parties expressed concern 

over repeated rulemakings addressing 

the electronic submission of injury and 

illness data to OSHA (e.g., Docket IDs 

0058, 0060, 0071, 0072, 0077). The 

Associated Builders and Contractors 

(ABC) commented, ‘‘we hope that 

OSHA recognizes that the frequent 

revisions it has made related to the 

requirements surrounding electronic 

reporting of injury and illness data has 

caused confusion and uncertainty 

among construction contractor 

employers in respect to what 

requirements apply to their businesses, 

especially for small businesses’’ (Docket 

ID 0071). Similarly, the Window and 

Door Manufacturers Association 

commented, ‘‘OSHA must also consider 

the impact that the agency’s repeated 

changes and reversals to its 

recordkeeping policies has had on 

employers, especially smaller entities. 

This year’s proposed rule is now the 

third such rulemaking by OSHA on 

injury and illness recordkeeping since 

2014.’’ This commenter added that the 

frequent changes to recordkeeping 

regulations have resulted in confusion 

among employers regarding what 

requirements apply to their business 

(Docket ID 0072). The Coalition for 

Workplace Safety, the National 

Demolition Association, and the 

National Lumber and Building Materials 

Association submitted similar 

comments (Docket IDs 0058, 0060, 

0077). 

OSHA acknowledges that some 

employers may be confused by the 

multiple rulemakings amending the part 

1904 requirements for certain employers 

to electronically submit injury and 

illness data from their Forms 300 and 

301. However, OSHA believes this 

rulemaking provided potentially 

affected employers with clear notice of 

the possibility that their obligations 

might change. And OSHA plans to 

implement a robust roll-out plan to alert 

employers of the final rule’s 

requirements. Moreover, even if some 

confusion remains, OSHA must place 

primary importance on whether new 

occupational safety and health 

requirements will help ‘‘assure so far as 

possible . . . safe and healthful working 

conditions . . . by providing for 

appropriate reporting procedures . . . 

which will help achieve the objective of 

th[e] Act and accurately describe the 

nature of the occupational safety and 

health problem’’ (see 29 U.S.C. 

651(b)(12)). As discussed above in 

Section II, Legal Authority, Section 8 of 

the OSH Act provides OSHA with broad 

authority to prescribe regulations as 

necessary or appropriate for the 

enforcement of the OSH Act and for 

developing information about the causes 

and prevention of occupational injuries 

and illnesses. Federal agencies, 

furthermore, are permitted to change or 

reverse prior policies, provided that 

they provide a reasoned explanation for 

the change. In this rulemaking, OSHA 

has made every effort to balance the 

benefits of this rule to occupational 

safety and health against any potential 

burden created for the regulated 

community, and has explained the 

reasons supporting any changes in 

OSHA’s prior policies throughout this 

preamble. 

As explained in more detail below, 

based on its experience with the 

collection of injury and illness data 

through the ITA, and with the 

advancements in technology to protect 

individual privacy, OSHA has 

determined that it is necessary and 

appropriate at this time to require 

certain larger establishments in higher 

hazard industries to electronically 

submit data from their Forms 300 and 

301 to OSHA once a year. OSHA 

believes that this requirement to submit 

case-specific data will have significant 

benefits for occupational safety and 

health, especially since the requirement 

applies to certain establishments in 

higher hazard industries where such 

reporting will have the greatest impact 

on reducing injury and illness rates. 

b. The Effect of the Rule on the 

Accuracy of Injury and Illness Records 

OSHA received comments expressing 

concern that OSHA collection and 

publication of data from Forms 300 and 

301 would lead to less accurate data, 

because employers may respond by 

recording fewer injuries and illnesses 

(i.e., under-recording) (e.g., Docket IDs 

0052, 0053, 0088, 0090). One 

commenter, Angela Rodriguez, stated 

that some employers may be tempted to 

avoid logging recordable cases (Docket 

ID 0052). The U. S. Poultry & Egg 

Association commented that employers 

might record less information because of 

fears that recording more cases could 


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harm recruitment and retention of 

employees (Docket ID 0053), while the 

National Retail Federation stated that 

‘‘fear of developing a negative image in 

their communities, may cause managers 

to underreport injuries and illnesses 

that occur at the workplace to protect 

their business reputation’’ thereby 

reducing the accuracy of the data OSHA 

collects (Docket ID 0090). NIOSH 

commented that employers might 

submit inflated employee counts to 

OSHA in order to reduce their injury 

and illness rates or alter their NAICS 

code to avoid the rule’s requirements 

(Docket ID 0035, Attachment 2). 

In response, OSHA notes that, as 

discussed above in Section III.B.4 of this 

Summary and Explanation, the agency 

already publishes establishment-specific 

information from the OSHA Form 300A. 

Because the new information employers 

will be submitting under the final rule 

(i.e., the information from Forms 300 

and 301) is simply the more specific 

information underlying the data from 

the 300A that employers are already 

submitting (and that is already being 

published online), it is not clear to 

OSHA why publishing the additional 

information would change any existing 

incentives to under-record or to falsify 

information. Commenters did not 

provide any examples of increased 

under-recording as a result of the 

collection and publication of Form 

300A data, nor is OSHA aware of any. 

While OSHA believes that most 

employers act in good faith when 

carrying out their recordkeeping duties 

under the OSH Act, failing to record 

injuries or illnesses, or submitting false 

information to OSHA, could result in a 

citation for a violation of OSHA’s 

recordkeeping regulations. In addition, 

employers that falsify information 

provided to the government could also 

be found to have violated 18 U.S.C. 

1001(a), which prohibits the knowing 

and willful provision of false 

information regarding material facts on 

matters that are under the jurisdiction of 

the Executive branch, or Section 17(g) of 

the OSH Act, 29 U.S.C. 665(g), which 

prohibits knowingly making any false 

statement, representation, or 

certification in any application, record, 

report, plan, or other document filed or 

required to be maintained pursuant to 

the OSH Act. 

Some commenters raised the 

possibility that expanded data 

collection and publication could lead 

some employers to record fewer injuries 

and illnesses for which workrelatedness is unclear (e.g., Docket IDs 

0042, 0086, 0088). For example, the 

Chamber of Commerce stated that 

employers ‘‘will reconsider whether to 

record as many injuries or illnesses’’ 

and pointed in particular to cases in 

which work-relatedness is difficult to 

determine (Docket ID 0088). 

While OSHA recognizes that there are 

cases in which the analysis of workrelatedness may not be straightforward, 

OSHA also notes that employers are 

required to make good faith efforts to 

determine whether an injury or illness 

is work-related in order to establish 

whether the case is recordable under 

part 1904 (see § 1904.4(a)). There is a 

good deal of guidance in OSHA’s 

recordkeeping regulations themselves 

(see § 1904.5) on how to determine if an 

employee’s injury or illness is workrelated, including: general guidance for 

when a case is considered to be workrelated and when work-relatedness is 

presumed (§ 1904.5(a)); a list of 

circumstances in which cases that occur 

in the work environment are not workrelated (§ 1904.5(b)(2)); and instructions 

for how to determine work relatedness 

when employees are injured or become 

ill during work travel or while working 

from home (§ 1904.5(b)(6), (7)). Further 

guidance on the work-relatedness 

determination, as well as useful 

examples, can be found on OSHA’s web 

page, Detailed Guidance for OSHA’s 

Injury and Illness Recordkeeping Rule 

(https://www.osha.gov/recordkeeping/ 

entry-faq). While OSHA does not issue 

citations for over-recording, to the 

extent that this rule encourages 

employers to record only cases that they 

have determined are work-related, 

OSHA would expect the rule to increase 

the accuracy of the data that is recorded 

and then submitted to OSHA. Indeed, 

the Chamber of Commerce appears to 

support this as a likely outcome, stating 

that employers ‘‘may look more closely 

as to whether the injury or illness is 

work related and needs to be recorded’’ 

(Docket ID 0088). 

Some commenters also expressed 

concern that expanded data collection 

and publication would lead to greater 

underreporting by employees of their 

workplace injuries and illnesses, 

thereby reducing the data’s accuracy 

(e.g., Docket IDs 0042, 0055, 0056, 0070, 

0086, 0087). The Employers ERecordkeeping Coalition stated that it 

‘‘is very concerned that the increased 

risk of employee personal and medical 

information being collected by a Federal 

agency and then publicized, albeit 

inadvertently, will create a significant 

disincentive for employees to report 

workplace injuries that are recordable 

events’’ (Docket ID 0087). Worksafe and 

the Strategic Organizing Center 

suggested that OSHA add a provision to 

prohibit employer practices that 

discourage the reporting of injuries and 

illnesses by employers, pointing to 

employer programs that disincentive 

reporting as well as workers’ fear of 

retaliation for reporting an injury or 

illness to their employer (Docket IDs 

0063, 0079). 

With respect to the impact of privacy 

concerns on employee reporting, OSHA 

understands the importance of 

protecting personally identifiable 

information and notes that there is a 

very low risk that information that 

could reasonably be expected to identify 

individuals directly will be disclosed as 

a result of this final rule. OSHA 

acknowledges commenters’ concerns 

about the potential posting of this type 

of information on a publicly accessible 

website. However, the posting or 

disclosure of information that could 

reasonably be expected to identify an 

individual directly is not the intent, nor 

is it a likely result, of this rulemaking. 

As explained in more detail in Section 

III.B.6 of this Summary and 

Explanation, above, OSHA believes it 

has, and will have, effective safeguards 

in place to prevent the disclosure of that 

type of information. Further, OSHA 

hopes that employers will educate their 

employees about the safeguards OSHA 

is putting into place to protect against 

the disclosure of information that could 

reasonably be expected to identify 

individuals directly. OSHA also intends 

to include materials for employees in 

the materials that will be created to 

educate interested parties about the 

requirements of the rule as well as those 

safeguards. 

In response to Worksafe’s comment 

proposing a new regulatory provision 

prohibiting employer practices that 

discourage employee reporting, OSHA 

notes that the recordkeeping 

regulations, at § 1904.35(b)(1)(i), already 

require employers to establish 

reasonable procedures for reporting 

work-related illnesses and injuries that 

do not deter or discourage employees 

from accurately reporting their injuries 

or illnesses. Furthermore, the 

regulations explicitly prohibit 

employers from discharging or 

otherwise discriminating against 

employees for reporting work-related 

injuries and illnesses 

(§ 1904.35(b)(1)(iv); see also § 1904.36). 

And as OSHA clarified in the 2016 final 

rule which contained these 

recordkeeping provisions, a workplace 

safety incentive program could be found 

to violate § 1904.35 if employees are 

penalized for reporting work-related 

injuries or illnesses as part of the 

program (81 FR 29673–74). OSHA 

further stated that the changes were 

designed to ‘‘promote accurate 

recording of work-related injuries and 


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illnesses by preventing the underrecording that arises when workers are 

discouraged from reporting these 

occurrences’’ (81 FR 29669). Thus, 

OSHA has addressed this issue in its 

regulations since 2016. Moreover, 

OSHA has recognized since at least 

2012 that incentive programs that 

discourage employees from reporting 

injuries and illnesses by denying a 

benefit to employees who report an 

injury or illness may be prohibited by 

Section 11(c) (see https://www.osha.gov/ 

laws-regs/standardinterpretations/2012- 

03-12-0; 81 FR 29673–74). 

In contrast to those who argued that 

the final rule will lead to less accurate 

data, other commenters argued that the 

expanded data collection and 

publication will lead to more accurate 

data, because of increased transparency 

and oversight (e.g., Docket IDs 0049, 

0066, 0084, 0089). For example, the 

United Food and Commercial Workers 

International Union (UFCW) stated, 

‘‘We anticipate that the requirement that 

companies submit data electronically 

will improve the quantity, quality, and 

accuracy of their records, and increase 

OSHA’s and the public’s oversight 

ability, all of which will improve 

worker health and safety also’’ (Docket 

ID 0066). Cal/OSHA noted that the 

increased transparency created by the 

publication of the data will encourage 

and support accuracy in injury and 

illness reporting (Docket ID 0084). 

OSHA agrees with commenters who 

stated that the final rule will result in 

improved accuracy of injury and illness 

records, due to increased transparency 

and oversight by OSHA, employees, and 

others, as well as awareness by 

employers that their records could be 

subject to additional scrutiny. Section 

1904.32 already requires company 

executives subject to part 1904 

requirements to certify the annual 

summary (Form 300A); this process 

requires them to examine the OSHA 300 

Log and certify that the annual summary 

is correct and complete based on their 

examination of the OSHA 300 Log and 

their knowledge of the process by which 

the information was recorded. OSHA 

recognizes that most employers are 

diligent in complying with this 

requirement. However, a minority of 

employers is less diligent, leading to 

violations of the recordkeeping 

regulations. It is OSHA’s hope that, if 

these employers know that their data 

must be submitted to the agency and 

may also be examined by members of 

the public and their own employees, 

they may pay more attention to the 

requirements of part 1904, which could 

lead both to improvements in the 

quality and accuracy of the information 

and to better compliance with § 1904.32. 

Increased oversight by labor unions or a 

company’s employees could lead to 

corrections to the data if, for example, 

a labor union discovers that a known 

workplace injury of a union member is 

not included in the published data and 

reports the omission to the employer 

(e.g., Docket ID 0049). Finally, OSHA 

notes the comment from NIOSH 

suggesting various means of 

investigating the effect of 

implementation of this final rule on 

compliance with the requirements of 

part 1904 (Docket ID 0035, Attachment 

2). While the agency has determined 

that staggered implementation, where 

industries with the highest injury rates 

would be required to comply first, 

would be too confusing to implement, 

OSHA encourages future studies to 

assess the effect of the final rule on 

injury and illness recording, reporting, 

and data submission, and to identify 

solutions if problems are found. 

c. Collecting and Processing the Data 

From Forms 300 and 301 Will Help 

OSHA Use Its Resources More 

Effectively 

In the preamble to the 2019 final rule, 

OSHA stated that collecting and 

processing the Form 300 and 301 data 

and keeping information confidential 

which could reasonably be expected to 

identify an employee directly would 

require the agency to divert resources 

from other priorities, including the 

analysis of Form 300A data (84 FR 392; 

see also 84 FR 387). In particular, OSHA 

was concerned that collecting and 

processing this data would prevent it 

from ‘‘fully utilizing the data from the 

Form 300As and severe injury reports it 

is already collecting to improve its 

enforcement and outreach objectives to 

ensure compliance with the OSH Act’’ 

(84 FR 393). However, in the NPRM, 

OSHA explained that because of 

improvements in available technology, 

it would no longer need to rely on 

manual review or analysis for Form 300 

and 301 data and had preliminarily 

determined that the agency’s resourcerelated concerns described in the 2019 

final rule were no longer compelling (87 

FR 18541–42). In addition, OSHA 

explained that the proposed rule would 

increase the agency’s ability to focus 

resources on those workplaces where 

workers are at high risk (87 FR 18533). 

In other words, the proposal would, in 

some ways, save agency resources by 

helping the agency be more efficient, 

e.g., ‘‘allow[ing] the agency to focus its 

enforcement and compliance assistance 

resources based on hazard-specific 

information and trends, and . . . 

increas[ing] its ability to identify 

emerging hazards, at the establishment 

level’’ (87 FR 18538). 

A number of interested parties 

submitted comments on this issue and 

generally agreed that the data collected 

and published under this final rule will 

actually help OSHA use its limited 

resources more effectively to protect 

workers. For example, some interested 

parties, including the Council of State 

and Territorial Epidemiologists, 

National COSH, the Laborers’ Health 

and Safety Fund of North America, 

Worksafe, the International Brotherhood 

of Teamsters, Centro de los Derechos del 

Migrante, and Public Citizen, 

commented that requiring regular 

electronic submission of injury and 

illness data would help OSHA to use its 

limited enforcement and compliance 

assistance resources more effectively 

(Docket IDs 0040, 0048, 0063, 0080, 

0083, 0089, 0093). The AFL–CIO agreed 

that because OSHA’s resources are very 

limited, it ‘‘must maximize the use of 

existing tools’’ (Docket ID 0061). 

Commenters also provided examples 

of how this data would help OSHA use 

its resources more effectively. For 

example, National COSH, the National 

Employment Law Project, and the 

Centro de los Derechos del Migrante 

commented that ‘‘case-specific data will 

help the agency identify the hazardspecific materials and other compliance 

assistance resources they could direct to 

employers who report high rates of 

injuries or illnesses related to those 

hazards,’’ and ‘‘to workers in those 

industries’’ (Docket IDs 0048, 0049, 

0089). These commenters also said that 

the data would ‘‘aid the agency in 

identifying emerging hazards . . . and 

focus outreach to employers and 

workers whose workplaces might 

include those hazards.’’ 

Similarly, Public Citizen commented 

that the collected data would enable 

OSHA to ‘‘quickly pinpoint workplace 

hazards . . . and target its enforcement 

efforts’’ (Docket ID 0093). The 

International Union of Painters and 

Allied Trades/AFL–CIO commented 

that this requirement would ‘‘ensure 

factors responsible for those 

pronounced illness and injuries trends 

are identified and addressed in a timely 

manner for the well-being of workers’’ 

(Docket ID 0073). Worksafe also noted 

that electronic submission would allow 

the agency ‘‘to search and analyze the 

data’’ and provide ‘‘timely and 

systematic’’ injury and illness 

information that will help OSHA to 

focus its enforcement efforts on 

‘‘hazards that are affecting workers 

now’’ (Docket ID 0063). 

On the other hand, the Chamber of 

Commerce questioned whether the data 


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12 It also does not necessarily follow that an 

agency could not have made a different, nonarbitrary-and-capricious decision based on the 

record before the agency at the time it made its 

original decision. This is part of the reason why 

reviewing courts do not substitute their judgment 

for that of the agency: at times, more than one 

reasonable decision could follow from a given 

record. 

could actually help OSHA target its 

enforcement efforts (Docket ID 0088, 

Attachment 2). The Chamber stated that 

injury and illness data are complex and 

‘‘unavoidably subjective,’’ and asserted 

that because the log only includes workrelated injuries, it does not show actual 

risks—rather, ‘‘it shows whether the 

employer believes that there is a 

connection between the working 

environment and the injuries.’’ 

Additionally, several commenters 

reiterated OSHA’s concerns from the 

2019 final rule regarding the diversion 

of OSHA’s resources from other 

important initiatives (e.g., Docket IDs 

0058, 0070, 0076). Some such 

commenters argued that any resource 

diversion would be inappropriate 

because OSHA is incapable of 

processing and utilizing the Forms 300 

and 301 data that would be received 

under the proposal. OSHA has 

addressed those comments elsewhere in 

this preamble, explaining that the 

agency has the capability to collect and 

use such data (see, e.g., Section 

III.B.14.d of this Summary and 

Explanation). Other commenters merely 

referenced OSHA’s 2019 determination 

that its resources would be diverted 

without analyzing the reasons OSHA 

gave for reconsidering its previous 

decision. Still other commenters 

attacked OSHA’s findings that 

improvements in technology will 

decrease the resources required to 

collect and process the Form 300 and 

301 information and ensure that 

information which could reasonably be 

expected to identify an individual 

directly is not publicly released. OSHA 

has covered these comments elsewhere 

as well (see, e.g., Section III.B.6 of this 

Summary and Explanation). 

Finally, the International Bottled 

Water Association (IBWA) pointed to 

district court rulings on the 2019 final 

rule and argued, ‘‘[T]he reviewing court 

agreed with OSHA’s determinations that 

costly manual review of collected 300 

and 301 data would be needed to avoid 

a meaningful risk of exposing sensitive 

worker information to public disclosure, 

finding that the uncertain benefits of 

collecting the 300 and 301 data did not 

justify diverting OSHA’s resources from 

other efforts.’’ (Docket ID 0076). 

IBWA’s comment misconstrues the 

court’s decision. The court did not 

‘‘agree’’ with OSHA’s determination. 

Rather, the court found that OSHA’s 

decision was neither arbitrary nor 

capricious, i.e., that OSHA had not 

‘‘entirely failed to consider an important 

aspect of the problem, [or] offered an 

explanation for its decision that runs 

counter to the evidence before the 

agency’’ at the time OSHA made its 

decision (see State of New Jersey et al. 

v. Pizzella, No. 1:19–cv–00621 (D.D.C. 

Jan. 11, 2021) (citation and internal 

quotations omitted)). Importantly, the 

court stated that ‘‘the arbitrary and 

capricious standard is narrow, and a 

court is not to substitute its judgment 

for that of the agency (id. (citation and 

internal quotations omitted)). Rather, 

reviewing court’s decisions are ‘‘based 

on a consideration of the relevant 

factors and whether there has been a 

clear error in judgment’’ (id. (citation 

and internal quotations omitted)). In 

short, the court did not do an 

independent review of all the record 

evidence and determine that OSHA 

made the correct decision. Instead, it 

looked to see if OSHA considered all the 

relevant factors and made a reasonable 

decision. The fact that an agency’s 

decision based on the record at the time 

was reasonable does not prevent the 

agency from subsequently making a 

different reasonable decision based on 

new information.12 That is what OSHA 

has done here. 

After consideration of these 

comments, OSHA agrees with 

commenters that collection of casespecific information from the Form 300 

and 301 will help the agency use its 

enforcement and compliance assistance 

resources more effectively by enabling 

OSHA to identify the workplaces where 

workers are at high risk. As explained 

in the 2001 final rule, and as identified 

by commenters, establishment-specific 

injury and illness information will help 

OSHA target its intervention efforts on 

the most dangerous worksites and the 

worst safety and health hazards, and 

injury and illness data will help OSHA 

to identify the scope of safety and health 

hazards and decide whether regulatory 

intervention, compliance assistance, or 

other measures are warranted (see 66 FR 

5917). OSHA disagrees with the 

Chamber’s claim that the case-specific 

data would not help OSHA target its 

enforcement efforts because it does not 

show actual risks. The Chamber is 

correct in that a single recorded injury 

or illness, in and of itself, does not 

necessarily indicate the existence of a 

risk. Similarly, recording a work-related 

injury, illness, or fatality does not mean 

that the employer or employee was at 

fault, that an OSHA rule has been 

violated, or that the employee is eligible 

for workers’ compensation or other 

benefits (see Note to § 1904.0). However, 

an injury or illness recorded under part 

1904 is an indicator of a potential risk 

in the workplace, i.e., the employer has 

determined that a particular injury or 

illness of an employee meets the 

definition of work-relatedness in 29 CFR 

1904.5(a). In other words, such data can 

indicate a failure in an area of an 

establishment’s safety and health 

program or the existence of a hazard. 

The fact that they do not always do so 

is not persuasive (see Section III.B.4 of 

this Summary and Explanation). Thus, 

rather than diverting OSHA’s resources 

from higher priority issues, OSHA has 

determined that the data collected and 

published under this rule will help 

OSHA use its limited resources more 

effectively to protect workers. 

d. OSHA’s Capacity To Collect and 

Process the Data From Forms 300 and 

301 

The preamble to the 2019 final rule 

cited the costs of building the data 

collection system and processing the 

data from Forms 300 and 301 as one 

reason OSHA was rescinding some of 

the 2016 rule’s data submission 

requirements (84 FR 389). As discussed 

throughout this preamble, in the NPRM 

to this rulemaking, OSHA found that the 

reasons given in the preamble to the 

2019 final rule for the removal of the 

300 and 301 data submission 

requirement are no longer compelling 

(87 FR 18538). 

As to the collection of the data, OSHA 

(and more broadly, the Department of 

Labor) has the technical capacity to 

build the necessary data collection 

system. OSHA’s ability is supported by 

its success in building and utilizing the 

system to collect data from 

establishments’ Forms 300A. Since 

2017, the ITA has collected submissions 

of Form 300A from roughly 300,000 

establishments per year. In addition, 

OSHA’s ability to build such a system 

is supported by the fact that other 

Department of Labor agencies, i.e., BLS 

and MSHA, successfully built and are 

utilizing similar collection systems (see, 

e.g., Docket ID 0079). BLS’s system, in 

particular, is illustrative of the 

Department’s ability to create and 

utilize such systems: each year, the BLS 

Survey of Injuries and Illnesses (SOII) 

collects the same case-specific 

information, from the same OSHA 

records, from roughly 200,000 

employers, nearly 150,000 more 

submitters than will provide data to 

OSHA under this final rule. NIOSH also 

effectively built and is using a similar 

system (Docket IDs 0035, Attachment 2, 

0079). Based upon this information, it is 


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13See ‘‘Deep neural networks for worker injury 

autocoding’’, Alexander Measure, U.S. Bureau of 

Labor Statistics, draft as of 9/18/2017 (Ex. 96). 

14See https://www.bls.gov/iif/automated-coding/ 

deep-neural-networks.pdf. 

reasonable to anticipate that OSHA will 

have the technical capacity to collect 

the case-specific submissions. OSHA 

discusses the costs to build the data 

collection system in Section IV, Final 

Economic Analysis. 

As to data processing, the preamble to 

the 2019 rule does not specifically 

explain what is included in the 

‘‘processing’’ of data; however, the 

discussion included a comment from 

NIOSH ‘‘offering to help with data 

analysis’’ and ‘‘not[ing] that it has 

already developed auto-coding methods 

for categorizing occupation and industry 

based on free text data and has 

successfully utilized similar free text 

data collected from workers’ 

compensation claims’’ (84 FR 389, 

referencing Document ID 2003–A2). As 

explained in the NPRM for the current 

rulemaking, the agency preliminarily 

found that these concerns about 

‘‘processing’’ costs were no longer 

compelling, due to technological 

developments in automated data coding 

for text-based fields that have made it 

easier and more cost-effective for OSHA 

to efficiently use electronically 

submitted, establishment-specific, casespecific injury and illness data. As 

discussed below, coding data is helpful 

for characterizing, analyzing, and 

making use of large amounts of textbased information. 

In the preamble to the proposed rule, 

OSHA declared an intention to use 

automated systems to assign 

standardized codes based on the 

information contained in the text fields 

(e.g., type of accident is ‘‘fall’’) to 

categorize and more efficiently use the 

data (87 FR 18540). This standardized, 

automated coding of information from 

text fields in Forms 300 and 301 is 

already being done by BLS. As 

explained in the preamble to the 

proposed rule, in 2018, after the 

beginning of the previous rulemaking 

process, BLS switched to an autocoding 

system that uses deep neural networks 

(87 FR 18541). This system 

outperformed the alternatives across all 

coding tasks and made an average of 

24% fewer errors than the logistic 

regression autocoders, and an estimated 

39% fewer errors than the manual 

coding process.13 OSHA explained in 

the preamble that, by 2019, according to 

BLS, ‘‘automatic coding had been 

expanded to include all six primary 

coding tasks (occupation, nature, part, 

source, secondary source, and event), 

with the model assigning approximately 

85% of these codes.’’ 14 OSHA asked for 

public comment on the issue of 

automated coding of text-field data and 

other available technology that would 

enable OSHA to automatically code 

these data and also specifically asked, 

‘‘In addition to the automated methods 

for coding text-based data discussed 

above, what additional automated 

methods exist to code text-based data?’’ 

(87 FR 18547). 

In response, NIOSH commented, that 

it ‘‘collects occupational injury data 

from a national probability sample of 

emergency departments.’’ It further 

explained: ‘‘These data are collected 

through the occupational supplement to 

the National Electronic Injury 

Surveillance System (NEISS-Work) 

[NIOSH 2022a]. Beginning with the 

2018 NEISS-Workdata, injury event or 

exposure and source codes from the BLS 

Occupational Injury and Illness 

Classification System (OIICS) Version 

2.01 were assigned through a machine 

learning algorithm with manual quality 

control efforts.’’ (Docket ID 0035). 

NIOSH clarified that the machine 

learning algorithm ‘‘relies mostly on the 

information in the narrative injury 

incident description field.’’ Further, 

NIOSH explained that it ‘‘has continued 

to enhance [its] machine learning 

process using more technologically 

advanced approaches, including 

incorporating additional quantitative 

variables, which has increased the 

coding accuracy and further reduced the 

need for manual coding.’’ It also noted 

that it recently collaborated with a 

partner university to develop a machine 

learning algorithm that assigns Bureau 

of Census industry codes based on the 

narrative fields of employer name and 

business type (Docket ID 0035). 

Similarly, the Strategic Organizing 

Center (SOC) referenced the work that 

BLS has done, stating that BLS ‘‘faced 

a problem of similar magnitude when 

constructing the addition to the Annual 

Survey of Occupational Injuries and 

Illnesses in the early 1990’s—the 

Detailed Case and Demographic series, 

based on its sampling of the exact same 

data types from employers Form 301’s’’ 

and it ‘‘developed and refined the 

Occupational Injury and Illness Coding 

System (OIICS).’’ SOC extolled BLS’s 

system: ‘‘[t]his system is now 

successfully used annually to code all 

those cases, with extraordinary benefits 

for all parties interested in both the BLS 

survey and the underlying data from the 

employer sources themselves’’ (Docket 

ID 0079). 

In contrast, AIHA commented, 

‘‘Automated methods to analyze textbased responses are very difficult to 

develop due to the variation of words 

and writing styles used around the 

United States. It would be more cost 

effective to expand the use of 

checkboxes and radio buttons to assist 

in interpreting and extracting data from 

text responses.’’ (Docket ID 0030). 

Similarly, the U.S. Poultry and Egg 

Association commented, ‘‘the idea that 

OSHA will assess the OSHA 301’s is 

unrealistic. The amount of data from the 

OSHA 301 will be massive and the 

answers for most questions are not 

standardized’’ (Docket ID 0053). 

The Phylmar Regulatory Roundtable 

also expressed doubts about OSHA’s 

ability to process the data it would 

receive pursuant to the proposed rule, 

commenting that, ‘‘[t]he amount of 

information and data points that this 

regulation will produce is exponentially 

larger than what OSHA currently 

collects from Form 300A alone.’’ It 

added that ‘‘[i]t is also not clear 

whether, despite the use of technology 

such as AI or deep learning models to 

process and interpret the data, OSHA 

has the resources in place to 

constructively utilize the information.’’ 

PRR estimated that OSHA would 

receive ‘‘1,065,363’’ documents if the 

proposed rule was promulgated, a 

number which PRR claimed is ‘‘3 times 

more than the number of documents 

OSHA has experience working with’’ 

(Docket ID 0094). 

The Employers E-Recordkeeping 

Coalition (Coalition) similarly expressed 

concerns with OSHA’s plans, arguing 

that ‘‘[t]he proposed use of an 

automated system to assign 

standardized codes based on text 

identified in the 300 and 301 forms is 

unrealistic.’’ Specifically, the Coalition 

doubted that a system which relies on 

keyword searches would be helpful 

because ‘‘[they] are literal in the sense 

that computers find terms wherever 

they appear—even if part of a larger 

phrase or used in a different context. 

Words often have multiple meanings, so 

keyword searches tend to return 

irrelevant results (false positives), 

failing to disambiguate unstructured 

text.’’ The Coalition added that such 

‘‘searches also may fail to identify 

useful information that does not use the 

express search terms (false negatives).’’ 

Further, it noted, ‘‘OSHA’s proposed 

use depends on employers typing words 

without spelling errors, abbreviated text, 

or industry-specific language, acronyms 

or codes that are not encapsulated in a 

word search. Under these conditions, 

OSHA would miss mountains of 

pertinent information, be flooded by 


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15Measure, Alexander. ‘‘Six Years of Machine 

Learning in the Bureau of Labor Statistics.’’ 

Advances in Business Statistics, Methods and Data 

Collection, Jan. 2023, pp. 561–72. 

16https://www.bls.gov/iif/automated-coding.htm. 

irrelevant information, and, in our view, 

simply would not effectively identify 

workplaces that should be targeted for 

enforcement.’’ The Coalition concluded: 

‘‘[a]n accurate analysis of employer 300 

and 301 information requires 

individualized analyses by real 

people—not IT systems using word 

searches’’ (Docket ID 0087; see also 

Docket ID 0076). 

In response, OSHA notes that no 

coding system, including manual 

coding, is 100% accurate. However, as 

discussed in the preamble to the 

proposed rule, a system to collect and 

autocode text-based data from OSHA 

Forms 300 and 301 already exists, and 

BLS is effectively using it (see, e.g., 

Docket ID 0102 15). In fact, BLS 

continues to expand use of autocoding, 

explaining that ‘‘For survey year 2020, 

all cases mentioning ‘covid’ or ‘corona’ 

were manually coded due to their novel 

nature and prevalence, dropping the 

percentage of cases autocoded. Since 

then, COVID–19 cases were integrated 

into the autocoder training process, 

allowing for the automated coding of 

approximately 92 percent of codes for 

survey year 2021. Starting with survey 

year 2021, BLS expanded collection of 

case data from all sampled 

establishments to include details for 

cases involving days of job transfer or 

restriction only. Previously BLS 

collected complete details only for cases 

involving days away from work. 

Biennial estimates of detailed case 

circumstances for cases involving days 

away from work, job transfer, or 

restriction covering survey years 2021– 

2022 will first be published in the fall 

of 2023.’’ 16 Chart 1, below, illustrates 

the SOII autocoder performance for data 

collected annually. 

NIOSH also currently has the 

capability to accurately autocode textbased data related to occupational 

injuries and illnesses. OSHA is 

continuing discussions with BLS and 

NIOSH about adopting and/or 

modifying their autocoding source code 

to create a pilot system where the 

autocoding of OSHA data collected by 

OSHA could be tested and compared to 

manual coding of the same data. Upon 

successful testing and adoption of the 

autocoding system, OSHA plans to 

consult and work with BLS, NIOSH, and 

other agencies with experience 

autocoding text-based occupational 

safety and health data for long-term 

system maintenance to continuously 

update the neural network code and 

refine automation of the data. Until the 

autocoding system has been tested and 

is in place, OSHA intends to only use 

and publish uncoded data. Both 

uncoded and coded data can be useful 

for OSHA, as well as researchers, 

employers, and employees. 

Once the data are coded, OSHA 

expects to use the data similarly to how 

the agency currently uses coded data 

from the Severe Injury Reporting (SIR) 

program (see Docket ID 0005 for an 

example of a search interface for the 

data that will be collected under this 

final rule). OSHA also intends to 

combine the coded data with other data 

sources (e.g., inspection data or SIR 

data) to increase the utility of the data 

for both the agency as well as other 

users (e.g., employers, employees, 

researchers, and the public). The 

specific estimated cost burden on OSHA 

and employers for data collection and 

processing is discussed in Section IV, 

Final Economic Analysis, below. 

e. Data Submission 

In the preamble to the proposed rule, 

OSHA also asked the following two 

questions related to helping employers 

meet the requirements of the proposed 

rule: 

• Are there electronic interface 

features that would help users 

electronically submit part 1904 data, 

particularly for case data from the 

OSHA Form 300 and Form 301 and for 


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establishments that submit using batch 

files? For example, would it be helpful 

for OSHA to provide a forms package or 

software application that exports the 

required files into a submission-ready 

format? 

• What features could OSHA provide 

to help establishments determine which 

submission requirements apply to their 

establishment? 

OSHA received a number of 

comments related to these questions. 

Electric Boat commented that their 

company currently uses proprietary 

recordkeeping software to compile 

injury and illness data. Data from the 

Form 300A is then manually entered in 

order to submit it to OSHA. Electric 

Boat asked how OSHA will require data 

on the Forms 300 and 301 to be 

submitted and noted that manually 

entering data for each case would be 

difficult, costly, and could result in 

errors in the submitted data. The 

company asked for ‘‘clarification on the 

method of submission and whether or 

not scanned versions or PDF uploads of 

the forms would be an acceptable means 

of submission’’ (Docket ID 0028). 

The Sheet Metal and Air Conditioning 

Contractors’ National Association 

expressed concern about being required 

to use OSHA-provided software on their 

systems, alleging that this would require 

additional resources for familiarization 

with the software and that it could 

create potential cyberliability claims for 

their member companies (Docket ID 

0046). On the other hand, AIHA urged 

OSHA to ‘‘consider providing software 

with recordkeeping logic to enable the 

completion of data forms and automatic 

generation of logs for posting and 

reporting. . . . Employers struggle with 

interpreting recordkeeping 

requirements, and a user interface could 

include interpretation logic as well as 

assist in paperwork completion’’ 

(Docket ID 0030). The AFL–CIO 

similarly stated that it would be useful 

for OSHA to provide basic software for 

‘‘injury and illness recordkeeping from 

which the data can be easily uploaded/ 

reported to OSHA through a secure 

website as OSHA envisions’’ (Docket ID 

OSHA–2013–0023–1350, Attachment 2). 

And Cal/OSHA ‘‘encourage[d] the 

design of a data submission system that 

is compatible with other existing 

electronic systems used to track and 

report establishment-specific injury and 

illness data’’ (Docket ID 0084). 

For the expanded data collection 

under this final rule, OSHA plans to 

continue to enable three methods of 

data submission: manual data entry, 

batch file, and API. In manual data 

entry, the user enters the data into a web 

form and then submits the web form. In 

batch file submission, the user uploads 

a csv file (a delimited text file in which 

commas separate the values). In API 

(application programming interface), the 

user uses a software program that 

communicates directly with OSHA’s 

data collection program. In response to 

Cal/OSHA’s comment, OSHA notes that 

the API submission method is 

compatible with other existing 

electronic systems used to track and 

report injury and illness data. In 

addition, OSHA intends to continue to 

require electronic submission of the 

recordkeeping data, i.e., OSHA will not 

permit the uploading of scanned 

documents or pdfs. 

None of the data submission methods 

described above require establishments 

to use OSHA-provided software on their 

systems. Indeed, OSHA has never 

provided, and does not intend to require 

employers to use, OSHA-developed 

software for data submission. OSHA, 

however, is aware that some 

employers—particularly small 

employers—might find OSHA-provided 

software useful for data submission, as 

reflected in the comments from the 

AIHA and the AFL–CIO. OSHA will 

therefore consider developing and 

providing such software in the future; 

however, use of such software would 

not be required and the other data 

submission options would remain 

available. Regardless of whether OSHA 

decides to provide such software, OSHA 

expects that developers of proprietary 

recordkeeping software will expand 

their applications that enable automated 

electronic submission of the required 

information from the OSHA Form 300A 

to also include submission of 

information from the Forms 300 and 

301; this is further discussed in the 

Final Economic Analysis, below. 

AIHA noted that ‘‘Built-in error 

checks for key data problems would be 

helpful,’’ stating that the usefulness of 

the online data could be affected by 

errors in submissions: ‘‘For example, the 

2020 data for NAICS codes in the 

331500 industry series contain five 

entries with more than 150,000 hours 

worked per employee. In one case, an 

employer with 150 employees reported 

working 24 million hours. On the other 

hand, there were a couple of anomalies 

in the opposite direction, including an 

employer with 27 employees who 

reported a total of only 40 hours worked 

for the entire year, less than two hours 

per employee. The result of these 

obvious errors is that the average hours 

for the industry were 3,713 per worker, 

almost double the expected 

number. . . . OSHA should consider 

adding some editing features that would 

highlight potential errors.’’ (Docket ID 

0030). 

In response, OSHA notes that the 

Injury Tracking Application (ITA) 

already contains built-in edits that warn 

users of potential data errors, including 

warnings about too many or too few 

hours worked per employee. However, 

OSHA decided to allow the user to 

bypass the warning in order to avoid 

discouraging or prohibiting the user 

from meeting their reporting obligations. 

Each year, OSHA follows up with users 

who submitted questionable data by 

informing them of the potential errors 

and providing step-by-step guidance on 

how to correct the error. OSHA 

encourages data corrections, but does 

not require them. This follow-up 

process is limited to establishments 

under Federal OSHA jurisdiction. 

OSHA anticipates incorporating similar 

built-in edits into the expanded ITA for 

collection of Form 300/301 information 

in order to warn users of potential errors 

in their submissions; the agency, 

however, does not intend to prevent 

users from submitting their information 

if they bypass the warning. 

On a related topic, the Coalition for 

Workplace Safety (CWS) requested that 

OSHA ‘‘establish clear procedures for 

employers to make corrections to 

already-submitted data, and improve 

internal processes to ensure those 

corrections are reflected in the publicly 

posted data’’ because ‘‘[c]urrently, upon 

notice from an employer of a required 

correction, it takes months for OSHA to 

make these corrections online’’ (Docket 

ID 0058). OSHA notes that these 

comments seem to reflect a 

misunderstanding of the process for 

correcting injury and illness information 

that has already been submitted. For 

changes to data for the current 

collection year, the Injury Tracking 

Application allows respondents to edit 

their already submitted data, and those 

changes take place immediately within 

the application. To make the data 

publicly available, OSHA posts each 

year’s data on its public website three 

times: (1) an initial file is posted in 

April of the collection year; (2) an 

updated file is posted in September of 

the collection year; and (3) a final file 

is posted in the beginning of the 

following year. Users may also make 

requests for changes to previous years 

via the Help Request Form on the 

Frequently Asked Questions page for 

the Injury Tracking Application (https:// 

www.osha.gov/injuryreporting/ita/helprequest-form). During the six years 

OSHA has been collecting information 

from the Form 300A, OSHA is aware of 

only one request to change the data for 

an establishment in the publicly posted 


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file. That change was made within days, 

and a revised file was posted. Because 

this system has been working so far to 

incorporate changes made to alreadysubmitted data, OSHA intends to 

continue to follow these procedures for 

correcting and posting updated data. 

More generally, the NSC 

recommended that OSHA develop tools 

and resources to help employers 

understand the forms and questions, 

‘‘which could include a mentoring 

program allowing for larger, more 

sophisticated employers to assist small 

and mid-sized businesses with 

reporting’’ (Docket ID 0041). While 

OSHA certainly does intend to develop 

additional tools and resources to enable 

employers to comply with the final rule, 

it does not currently have plans to 

develop such a mentoring program. 

However, OSHA encourages 

collaboration between regulated entities, 

whether as part of industry associations, 

union efforts, or the type of 

collaboration mentioned by NSC. In 

addition, OSHA notes that the 

compliance assistance materials the 

agency will offer could be used as part 

of such collaborative efforts. 

Regarding the means of determining 

an establishment’s NAICS codes and 

number of employees, NIOSH 

recommended that employers use, as a 

starting point, the NAICS and employee 

counts that are reported quarterly, on a 

per-establishment basis, to their State 

workforce agencies. NIOSH noted that 

these reports are submitted as part of 

their unemployment insurance (UI) 

filings and/or as part of the Quarterly 

Census of Employment and Wages 

(QCEW), a Federal-State partnership 

(Docket ID 0035). In addition, NIOSH 

suggested that ‘‘a single summary 

‘lookup’ table be provided to make it 

easy to simply look up any industry and 

see the requirements for form 

submission by establishment size.’’ 

Furthermore, NIOSH suggested that 

OSHA could provide a table or tables 

that would include different generations 

of NAICS codes, to account for the fact 

that different employers will be using 

NAICS codes from different years. 

(Docket ID 0035, Attachment 2). 

In response, OSHA agrees with 

NIOSH that it would be appropriate for 

employers to use the reports they make 

to State workforce agencies as a starting 

point for determining their NAICS and 

employee numbers. OSHA also concurs 

that a look-up table by industry and 

establishment size could help 

establishments determine whether and 

how they are affected by the data 

submission requirements. The agency 

currently has a look-up app at https:// 

www.osha.gov/itareportapp to help 

employers determine if their 

establishment is required to submit 

300A data to OSHA, based on State 

location, peak employment in the 

previous year, whether the 

establishment is a government facility, 

and the establishment’s NAICS code. 

The agency plans to modify the app to 

cover the new requirements before they 

become effective. 

Finally, OSHA asked the following 

question in the proposal about requiring 

versus allowing establishments that 

already have accounts in the ITA to 

update their accounts to the 2022 

NAICS: ‘‘Going forward, OSHA intends 

to use the 2022 NAICS in the ITA for 

establishments that are newly creating 

accounts. However, for establishments 

that already have accounts in the ITA, 

the version of NAICS used is the 2012 

NAICS. BLS anticipates that 

establishments that already have 

accounts in the ITA, are also subject to 

the SOII, and have 2022 NAICS codes 

that are different from their 2012 NAICS 

codes, would be unable to use the datasharing feature . . . to prefill their BLS 

SOII submission with data already 

submitted through the OSHA ITA, 

unless these establishments updated 

their accounts to revise their industry 

classification from the 2012 NAICS to 

the 2022 NAICS. What are the 

advantages and disadvantages of 

requiring establishments that already 

have accounts in the ITA to update their 

accounts to the 2022 NAICS? How much 

time would an establishment require to 

determine whether their 2022 NAICS is 

different from their 2012 NAICS? How 

much time would an establishment 

require to edit their NAICS code in the 

ITA to reflect any changes?’’ (87 FR 

18547). 

In response to this question, NIOSH 

expressed a preference for all users to 

update their NAICS codes to the 2022 

version in the OSHA ITA: ‘‘As potential 

end users of the data, NIOSH believes 

the use of multiple NAICS code 

schemes will require extra work to 

analyze the data and increase the 

potential for errors during data entry 

and data analysis because the codes 

often change between versions. . . . For 

end users who are interested in 

analyzing the submitted data, the first 

step will be to crosswalk the codes 

across the various coding schemes, 

mapping old codes to new codes so that 

a single coding scheme can be used. 

Depending on the changes from version 

to version, crosswalking codes is often 

a tedious, time-consuming task and can 

potentially introduce error when the 

crosswalked categories are not the same 

or certain codes cannot be easily 

crosswalked.’’ (Docket ID 0035, 

Attachment 2). 

CWS also commented on the issue of 

updating NAICS codes in the OSHA 

ITA: ‘‘OSHA also states that 

establishments creating new accounts 

within the Injury Tracking Application 

(‘‘ITA’’) that OSHA uses for data 

submission will be identified using 

2022 NAICS codes, while 

establishments with existing ITA 

accounts will continue to be identified 

by the 2017 NAICS code. These 

inconsistencies will cause confusion for 

employers, may require employers to 

keep multiple sets of records, and may 

result in either over- or underreporting.’’ (Docket ID 0058). 

OSHA has decided to allow, but not 

require, employers that already have 

accounts in the ITA to update the 

NAICS for their establishments to the 

2022 codes. OSHA understands 

NIOSH’s concern about the timeconsuming and potentially inaccurate 

process of using crosswalks to convert 

from 2012 NAICS to 2022 NAICS when 

using the data for research purposes. 

However, the same concern applies to 

individual establishments using a 

crosswalk to update their NAICS. In 

fact, end users of the data may have 

more experience with NAICS and 

crosswalk use than those submitting 

data. OSHA has therefore determined 

not to burden establishments that 

already have accounts in the ITA with 

a requirement to update their NAICS 

codes from 2012 NAICS to 2022 NAICS. 

Establishments will have the option to 

update, but the update will not be 

required. Establishments that want to 

take advantage of the data-sharing 

feature to prefill their BLS SOII 

submission with data submitted to 

OSHA will, therefore, be able to use that 

feature if they update their NAICS. 

In response to CWS comment, OSHA 

notes that establishments creating new 

accounts in the ITA choose their NAICS 

from a pull-down menu of NAICS 

codes; with an update optional but not 

required, the only difference under this 

final rule will be that the pull-down 

menu will be loaded with 2022 NAICS 

codes instead of 2012 NAICS codes. (No 

accounts in the ITA use the 2017 codes, 

as the Coalition mistakenly stated in its 

comment). Establishments that already 

have accounts in the ITA will not have 

to do anything with respect to their 

NAICS codes. It is not clear to OSHA 

why this would cause confusion for 

employers, require employers to keep 

multiple sets of records, or result in 

over- or under-reporting. And, even if it 

did, an employer could simply choose 

to update their NAICS code in the ITA. 


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f. Tools To Make the Collected Data 

From Forms 300 and 301 More Useful 

In the preamble to the proposed rule, 

OSHA also asked for comment about 

tools that would make the published 

data more available and useful to 

interested parties (including employers, 

employees, job-seekers, customers, 

researchers, workplace safety 

consultants, and the general public) (87 

FR 18543). Several commenters 

provided suggestions for ways to make 

published data more useful to interested 

parties. NIOSH’s primary concern was 

that ‘‘some data users might draw 

unwarranted conclusions about the 

overall safety record of establishments 

or employers when the numbers of 

employees and injuries are low.’’ To 

prevent misinterpretation, NIOSH 

suggested that ‘‘OSHA could publish 

statistical estimates of the extent to 

which an observed injury rate for an 

individual industry or establishment is 

predictive of future injury rates, or the 

extent to which any such injury rate 

reflects the underlying risk of injury.’’ 

NIOSH also commented that to address 

potential inaccuracies in OIICS codes 

and ‘‘increase data users’ understanding 

of the degree of reliability of the coding, 

OSHA may consider posting or making 

available the probabilities of code 

accuracy that are generated by the 

autocoding system, both on the 

individual injury case level and the 

aggregate level’’ (Docket ID 0035). 

Additionally, Unidos U.S., 

Farmworker Justice, and Texas 

RioGrande Legal Aid suggested that 

OSHA ‘‘publish the data in a way that 

is accessible, searchable, and sortable 

using a greater level of detail than is 

currently available’’ and make the data 

‘‘available in a way that allows the 

public to search for injuries and deaths 

among workers in specific industries— 

including by six-digit NAICS codes’’ 

and to ‘‘refine that data by type of 

hazard down to the most detailed 

subcategories of event, exposure, or 

source, and then to sort by other 

relevant fields such as location, 

employer, race, and ethnicity’’ (Docket 

ID 0078). Additionally, the commenters 

suggested that OSHA make the data 

available in multiple languages, 

including Spanish, to ‘‘ensure that 

Spanish-speaking Latinos themselves 

have access to the information’’ (Docket 

ID 0078). 

The International Brotherhood of 

Teamsters suggested that OSHA 

‘‘develop tools and resources within its 

website, especially where data is to be 

downloaded, that would allow better 

user interface and help users 

understand what they are looking at and 

what conclusions to draw,’’ such as 

providing more information on Total 

Case Rate (TCR), and Days Away 

Restricted or Transferred (DART) rates 

(Docket ID 0083). 

OSHA will take these comments into 

consideration when designing tools and 

applications to make the published data 

more available and useful to interested 

parties. As discussed above, there are 

considerable potential benefits to 

occupational safety and health resulting 

from publishing the collected data, and 

the easier it is for all interested parties 

to access and use the published data, 

the more these benefits will be realized. 

C. Section 1904.41(b)(1) 

Section 1904.41(b)(1) of the final rule 

includes clarifying information on the 

injury and illness record submission 

requirements for establishments of 

various sizes that are contained in final 

§ 1904.41(a)(1) and (2). The information, 

like many of the provisions in part 1904, 

is conveyed in question-and-answer 

format. The final provision addresses 

the question of whether every employer 

has to routinely make an annual 

electronic submission of information 

from part 1904 injury and illness 

recordkeeping forms to OSHA. The 

answer clarifies that not every employer 

has to routinely submit this data, and 

that, in fact, only three categories of 

employers must routinely submit 

information from these forms. The 

answer then describes the three 

categories of employers and the 

information they must submit. The first 

category is establishments that had 20– 

249 employees at any time during the 

previous calendar year, and are 

classified in an industry listed in 

appendix A. Establishments in this 

category must submit the required 

information from Form 300A to OSHA 

once a year. The second category is 

establishments that had 250 or more 

employees at any time during the 

previous calendar year, and are required 

by part 1904 to keep records. 

Establishments in this second category 

must also submit the required 

information from Form 300A to OSHA 

once a year. The third category is 

establishments that had 100 or more 

employees at any time during the 

previous calendar year, and are 

classified in an industry listed in 

appendix B. Establishments in this 

category must submit the required 

information from Forms 300 and 301 to 

OSHA once a year, in addition to the 

required information from Form 300A. 

The answer in § 1904.41(b)(1) also 

specifies that employers in these three 

categories have to submit the required 

information by the date listed in 

§ 1904.41(c) of the year after the 

calendar year covered by the form. 

Since the date in paragraph (c) is March 

2, that means that, for example, 

employers must submit the required 

information covering calendar year 2023 

by March 2, 2024. Finally, the answer 

clarifies that establishments that are not 

in any of the three categories must 

submit information to OSHA only if 

OSHA notifies that establishment that it 

must do so for an individual data 

collection. 

Proposed § 1904.41(b)(1) would have 

provided employers with further clarity 

on which employers and establishments 

needed to submit data under proposed 

§ 1904.41(a)(1) and (2) and how the 

requirements of those provisions 

interacted with each other. These 

proposed provisions, like the final 

provision, were written in question-andanswer format to help employers easily 

identify the information they seek. 

Proposed § 1904.41(b)(1)(i) reiterated 

the question posed in the previous 

version of § 1904.41(b), which asked 

whether every employer has to routinely 

make an annual electronic submission 

of information from part 1904 injury 

and illness recordkeeping forms to 

OSHA. The proposed answer was 

updated to be consistent with the 

requirements in proposed 

§ 1904.41(a)(1) and (2). Proposed 

§ 1904.41(b)(1)(ii) would have clarified 

that an establishment that has 100 or 

more employees, and is in an industry 

included in both appendix A and 

appendix B, need only make one 

submission of the OSHA Form 300A in 

order to fulfill the requirements of both 

proposed § 1904.41(a)(1) and (2). 

OSHA welcomed public comment on 

proposed § 1904.41(b)(1)(i) and (ii), 

including on whether the proposed 

provisions appropriately clarified the 

proposed requirements for employers. 

OSHA did not receive any comments 

specifically related to the text of 

proposed § 1904.41(b)(1), and the 

agency has addressed comments related 

to the substantive submission 

requirements in § 1904.41(a)(1) and (2), 

above. Therefore, OSHA has decided to 

finalize § 1904.41(b)(1) with changes 

from the proposal to reflect the revised 

structure of final § 1904.41(a)(1) and (2). 

Final § 1904.41(b)(1) therefore describes 

three categories of establishments that 

are required to submit information 

under the final rule, as opposed to the 

two categories described in proposed 

§ 1904.41(b)(1)(i). The three categories 

are: (1) establishments with 20–249 

employees in industries on appendix A 

that are required to submit information 

from their Form 300A under final 

§ 1904.41(a)(1)(i); (2) establishments 


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with 250 or more employees that are 

required to keep records under part 

1904 and are required to submit 

information from their Form 300A 

under final § 1904.41(a)(1)(ii); and (3) 

establishments with 100 or more 

employees in industries on appendix B 

that are required to submit information 

from their OSHA Forms 300 and 301. 

Similar to the proposal, the remainder 

of final § 1904.41(b)(1) notes that 

employers with establishments falling 

into any of these three 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. The example 

given in the final regulatory text—which 

specifies that submission for 2023 forms 

must occur in 2024—has been updated 

to reflect the first year OSHA anticipates 

employers having to submit information 

under this final rule. Finally, the 

provision specifies that if an 

establishment is not in any of the three 

specified categories, the employer must 

submit information to OSHA only if 

OSHA notifies the employer to do so for 

an individual data collection. OSHA 

anticipates that final § 1904.41(b)(1), 

along with the additional compliance 

information the agency intends to issue, 

will assist employers in determining 

their compliance responsibilities under 

the final rule. 

Proposed § 1904.41(b)(1)(ii) has not 

been included in the final rule; it is no 

longer necessary due to the 

restructuring of the final regulation. As 

discussed above, final § 1904.41(a)(1) 

relates only to the OSHA Form 300A, 

and final § 1904.41(a)(2) relates only to 

the OSHA Forms 300 and 301. This 

restructuring is expected to eliminate 

any confusion regarding whether an 

establishment might be required to 

submit information from its Form 300A 

twice. Therefore, there is only one 

question under final § 1904.41(b)(1), as 

opposed to the two that were proposed. 

One commenter requested additional 

guidance related to how the submission 

requirements will work. S.W. Anderson 

Company asked for clearer guidance for 

companies in designated industries that 

have 100 employees across multiple 

sites. The company stated that ‘‘we have 

just reached the 100-employee 

threshold. We have previously only 

submitted electronically the OSHA 

300A for our company headquarters 

since we have more than 20 employees. 

Our other locations all have less than 20 

employees’’ (Docket ID 0008). 

In response, OSHA clarifies that this 

final rule does not affect how employees 

are counted for recordkeeping or 

information submission purposes under 

part 1904. As OSHA states in reporting 

requirement FAQs on the agency’s 

Injury Tracking Application website 

(https://www.osha.gov/injuryreporting), 

OSHA’s electronic reporting 

requirements are based on the size of 

the establishment, not the firm. An 

establishment is a single physical 

location where business is conducted or 

where services or industrial operations 

are performed (see 29 CFR 1904.46). 

Therefore, under the facts described by 

this commenter, if the firm has only one 

establishment (the company’s 

headquarters) with more than 20 

employees, that is the only 

establishment for which the commenter 

might need to submit injury and illness 

information. That single establishment 

would have to submit the required 

information from its Form 300A under 

final § 1904.41(a)(1)(i) if the 

establishment falls under a NAICS code 

listed in appendix A. The company 

would not, however, have to submit 

information from its Form 300 or 301 for 

that establishment, regardless of NAICS, 

because the establishment does not have 

at least 100 employees. More generally, 

OSHA plans to revise and expand the 

FAQs on its recordkeeping website as 

part of its compliance efforts related to 

this final rule. 

D. Section 1904.41(b)(9) 

Section 1904.41(b)(9) of the final rule 

specifies which information employers 

must submit from the OSHA Forms 300 

and 301. Final § 1904.41(b)(9) asks and 

answers the following question: If I have 

to submit information under paragraph 

(a)(2) of this section, do I have to submit 

all of the information from the 

recordkeeping forms? Paragraph (a)(2) 

contains the submission requirements 

for information from the OSHA Forms 

300 and 301. 

The answer in the final rule is no, 

employers who have to submit 

information under paragraph (a)(2) of 

this section must submit all the 

information from the OSHA Forms 300 

and 301 except for the following casespecific information: 

• Employee name (column B), from 

the Log of Work-Related Injuries and 

Illnesses (OSHA Form 300). 

• Employee name (field 1), employee 

address (field 2), name of physician or 

other health care professional (field 6), 

and facility name and address if 

treatment was given away from the 

worksite (field 7) from the Injury and 

Illness Incident Report (OSHA Form 

301). 

Proposed § 1904.41(b)(9) was the 

same as final § 1904.41(b)(9). In the 

preamble to the proposed rule, OSHA 

explained that collecting data from 

these fields would not add to OSHA’s 

ability to identify establishments with 

specific hazards or elevated injury and 

illness rates. Therefore, OSHA proposed 

excluding these fields from the 

submittal requirements to minimize any 

potential release or unauthorized access 

to any PII contained in those fields. 

Because the data collection would not 

include the information from these 

fields, there would be no risk of public 

disclosure of the information from these 

fields through the data collection. 

OSHA requested comment on all 

aspects of proposed § 1904.41(b)(9), 

including whether the proposed 

specified fields should be excluded 

from data that would be collected, and 

whether other data should be similarly 

excluded to protect employee privacy or 

for other reasons. OSHA also asked 

more specific questions, as addressed 

below. 

1. Collecting Employee Names 

In the preamble to the proposed rule, 

OSHA specifically asked the following 

question about collecting employee 

names, in the context of data-sharing 

between OSHA and BLS: ‘‘OSHA is 

proposing not to collect employee 

names under proposed § 1904.41(a)(2) 

and (b)(9), consistent with worker 

privacy concerns expressed in public 

comments during previous rulemakings. 

However, BLS uses the ‘‘employee 

name’’ field on the Form 300 and Form 

301 in their data collection for the SOII. 

Beginning in 2021, a data-sharing 

feature has allowed some 

establishments that are required to 

submit Form 300A information to both 

OSHA and BLS, under the current 

regulation, to use their data submission 

to the OSHA ITA in their submission to 

the BLS SOII. BLS anticipates an 

inability to use this data-sharing feature 

for establishments required to submit 

under proposed § 1904.41(a)(2), unless 

OSHA requires these establishments to 

submit the ‘‘employee name’’ field on 

the Form 300 and 301. Without the datasharing feature, establishments that 

submit data to OSHA under proposed 

§ 1904.41(a)(2), and that also submit 

data to the BLS SOII, would not be able 

to use their OSHA data submission of 

case-specific data to prefill their BLS 

SOII submission. What would be the 

advantages and disadvantages, in terms 

of employer burden and worker privacy 

concerns or otherwise, of requiring all 

establishments subject to proposed 

§ 1904.41(a)(2) to submit employee 

names, to support this data-sharing 

feature for Form 300 and 301 

submissions? (Please note that OSHA 

would not intend to publish employee 

names.)’’ (87 FR 18547). 


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17Note that, as explained in the Privacy Impact 

Assessment (Docket ID 0107), establishments that 

submit their data by uploading a csv file (see 

III.B.14.e Data Submission) will include the Date of 

Birth field in the csv file, and the csv files will be 

temporarily stored in a secure, encrypted folder on 

the Department’s IT network (see III.B.9 Risk of 

cyber attack) for technical support purposes only, 

and purged on a regular basis. 

In response, OSHA received multiple 

comments about the desirability of datasharing between BLS and OSHA, but 

there were no comments supporting the 

collection of employee names. In fact, as 

discussed in more detail above in this 

preamble, numerous commenters 

expressed concerns about worker 

privacy and advocated that employee 

names be excluded from the data 

submission. 

The Coalition for Workplace Safety 

commented in support of data-sharing, 

‘‘Employers who submit data to OSHA 

should not be required to separately 

submit the same data to BLS. These 

duplicative reporting requirements are 

unacceptable, and OSHA’s current 

proposal only serves to exacerbate this 

existing problem’’ (Docket ID 0058). 

Similarly, the National Association of 

Manufacturers commented that it would 

be in the best interest of OSHA and 

manufacturers for OSHA to gather 

detailed information about workplace 

injuries and illnesses ‘‘in conjunction 

with the BLS SOII survey rather than in 

a separate data collection process’’ 

(Docket ID 0068). However, the 

Coalition for Workplace Safety and the 

National Association of Manufacturers 

also expressed great concern in their 

comments that collection of casespecific information from the Form 300 

and Form 301 would risk employee 

privacy. 

Other commenters also expressed 

support for data-sharing without 

expressing support for collection of 

employee names. For example, the 

American College of Occupational and 

Environmental Medicine commented in 

support of avoiding duplicate reporting 

and encouraged streamlining and 

simplifying the importation of data from 

OSHA to SOII (Docket ID 0037). 

Similarly, the National Safety Council 

commented, ‘‘OSHA and BLS should 

continue their collaboration to enable 

more businesses to benefit from single 

reporting and make reporting easier’’ 

(Docket ID 0041). 

Having reviewed the comments on 

this issue as well as the comments on 

employee privacy described in more 

detail elsewhere in this preamble, 

OSHA has decided not to collect 

employee names under final 

§ 1904.41(a)(2) and (b)(9). This decision 

is consistent with worker privacy 

concerns expressed in a number of 

public comments during this 

rulemaking and discussed elsewhere in 

this preamble. Not collecting employee 

names is, of course, the best way to 

ensure that this information does not get 

released online. The agency also, 

however, recognizes the value in 

providing ways to reduce the time and 

burden for employers that are required 

to submit data to both OSHA and BLS. 

As such, the agency will continue to 

work with BLS to identify and 

implement data-sharing methods that do 

not require submission of employee 

names to OSHA in order to reduce the 

burden for the subset of establishments 

that are required to submit their Form 

300 and 301 data to OSHA and also to 

submit data to the BLS SOII. 

2. Excluding Other Specified Fields 

In addition, in the preamble to the 

proposed rule, OSHA welcomed more 

general public comment on proposed 

§ 1904.41(b)(9), including whether the 

proposed specified fields should be 

excluded from data that would be 

collected, and whether other data 

should be similarly excluded to protect 

employee privacy or for other reasons 

(87 FR 18546). OSHA asked that any 

comments suggesting exclusion of other 

fields or data from the proposed 

submission requirements also address 

whether the exclusion of that particular 

field or data from collection would 

hinder OSHA’s ability to use the 

collection to protect employee safety 

and health. Exclusion of employee 

names is discussed above. Similar to 

employee names, there were no 

comments arguing that OSHA should 

collect the fields listed in proposed 

§ 1904.41(b)(9) (i.e., from Form 301 

employee address (field 2), name of 

physician or other health care 

professional (field 6), facility name and 

address if treatment was given away 

from the worksite (field 7)). 

However, there were some 

commenters that wanted additional 

fields to be excluded. For example, the 

Plastics Industry Association 

commented that OSHA should not 

collect job title, department, gender, 

birth date, date of hire, and date of 

death to avoid identifying individual 

employees, and urged excluding job 

titles in particular because there may 

only be a small number of employees, 

or a single employee, with a job title in 

a facility (Docket ID 0086). Other 

comments discussed elsewhere in the 

preamble also expressed concern that 

employees may be identified by the data 

fields OSHA intends to make public, 

(see, e.g., Docket IDs 0062, 0094). The 

Plastics Industry Association also 

commented on the possibility that these 

data fields could be cross-referenced 

with other data available publicly 

online, such as social network accounts 

like LinkedIn, to identify employees 

(Ex. 86). Similarly, R. Savage 

commented that ‘‘job title, date of hire, 

date of injury, and social media’’ could 

be used to identify the injured employee 

(Ex. 18). However, other commenters 

countered that the detailed data can be 

used to improve workplace safety and 

health, (see, e.g., Docket IDs 0030, 0079, 

0090). The Plastics Industry 

Association’s comments did not address 

whether the exclusion of these fields 

from the collection would hinder 

OSHA’s ability to use the collection to 

protect employee safety and health. 

In response to these concerns and, as 

discussed elsewhere in this preamble, 

OSHA has determined that the benefits 

of collecting the data for improving 

safety and health outweigh potential 

privacy concerns. Each of these data 

variables included in the data collection 

gives OSHA the ability to identify 

unique hazards. The age of workers is 

relevant to indicating increased hazards 

for certain age groups. The date of hire 

demonstrates when injuries disparately 

impact new employees versus more 

experienced employees. An injury that 

occurs mostly in recent hires may 

indicate a greater need for training and 

monitoring new employees, while other 

illnesses or injuries can occur 

predominantly in longer term 

employees. Gender is similarly helpful 

to indicate workers at higher risk. For 

example, women are at a higher risk for 

workplace violence. Job titles aid OSHA 

in indicating specific jobs with higher 

rates of illnesses and injuries. The date 

of injury and date of death are also 

useful to OSHA for identifying hazards. 

For example, certain illnesses may have 

a lag time between the date of injury 

and the date of death. Other injuries and 

illnesses may have a seasonal 

component, such as heat illnesses in the 

summer. 

Further, as part of OSHA’s 

determination that the benefits of 

collecting and publishing the data 

outweigh potential privacy concerns, 

the agency emphasizes that it will be 

able to adequately protect workers’ 

information that could reasonably be 

expected to identify individuals 

directly. OSHA notes that employee 

birth dates will not be made available to 

OSHA for outreach, enforcement, or 

research/analytical purposes.17 Instead, 

establishments will enter the birth date, 

the system will convert the information 

to age, and OSHA will retain the age. 

The data from the fields for age 

(calculated from date of birth in field 3), 


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date hired (field 4), gender (field 5), 

whether the employee was treated in an 

emergency room (field 8), and whether 

the employee was hospitalized 

overnight (field 9) will be collected, but 

these fields will not be published. 

OSHA also notes regarding the date of 

death field that deceased individuals do 

not have a right to privacy; further, 

since January 1, 2015, § 1904.39(a)(1) 

has required employers to report the 

death or hospitalization or amputation 

or lose of an eye of any employee as a 

result of a work-related incident within 

eight hours of the death, and OSHA 

publishes the reports at https://

www.osha.gov/severeinjury, including 

narrative information. In addition, as 

discussed elsewhere, HIPAA does not 

apply. 

After consideration of these 

comments, OSHA has decided to 

exclude the following fields from the 

data collection, as proposed: 

• Log of Work-Related Injuries and 

Illnesses (OSHA Form 300): Employee 

name (column B). 

• Injury and Illness Incident Report 

(OSHA Form 301): Employee name 

(field 1), employee address (field 2), 

name of physician or other health care 

professional (field 6), facility name and 

address if treatment was given away 

from the worksite (field 7). 

E. Section 1904.41(b)(10) 

Section 1904.41(b)(10) of the final 

rule addresses how establishments 

identify themselves in their electronic 

recordkeeping submissions. As noted 

above, OSHA’s recordkeeping regulation 

requires employers to maintain and 

report their injury and illness data at the 

establishment level. An establishment is 

defined as a single physical location 

where business is conducted or where 

services or industrial operations are 

performed (see 29 CFR 1904.46). Part 

1904 injury and illness records must be 

specific for each individual 

establishment. The text of final 

§ 1904.41(b)(10) is in question-andanswer format and responds to the 

question of whether a company may use 

numbers or codes as its establishment 

name when submitting data to OSHA. 

The answer to the question is yes, a 

company may use numbers or codes as 

its establishment name. However, the 

submission must also include a legal 

company name, either as part of the 

establishment name or separately as the 

company name. 

Final § 1904.41(b)(10) is identical to 

the proposed provision except for 

changing ‘‘company name’’ to ‘‘legal 

company name.’’ The final version of 

§ 1904.41(b)(10) is intended to address a 

problem OSHA identified with the 

previous rule, which was that the 

company name was not required. 

Specifically, as OSHA explained in the 

preamble of the proposed rule, the ITA 

(the data submission portal) includes 

two text fields which OSHA uses to 

identify each establishment: Company 

Name and Establishment Name. The 

Establishment Name field is a 

mandatory field, and users must provide 

a unique Establishment Name for each 

establishment associated with their user 

account. In contrast, the Company Name 

field is an optional field. OSHA’s review 

of five years of data electronically 

submitted under § 1904.41 showed that 

some firms submitted data with codes in 

the required Establishment Name field 

and nothing in the optional Company 

Name field. For example, in the 2020 

submissions of 2019 Form 300A data, 

users submitted data for more than 

18,000 establishments with a code in 

the Establishment Name field and no 

information in the Company Name field. 

The data are considerably less useful 

and more difficult for both OSHA and 

other interested parties to work with 

when establishments have a code in the 

Establishment Name field and no 

information in the Company Name field. 

For example, it is not possible for a data 

user to search for data by company for 

companies that use codes without 

including a company name. In addition, 

without the legal company name, OSHA 

is unable to determine whether a 

particular establishment in that 

company met the reporting 

requirements. 

To address this problem of missing 

data under the previous rule, OSHA 

proposed a provision to require 

employers who use codes for the 

Establishment Name to include a legal 

company name. The proposed 

provision, § 1904.41(b)(10), provided: 

‘‘My company uses numbers or codes to 

identify our establishments. May I use 

numbers or codes as the establishment 

name in my submission? Yes, you may 

use numbers or codes as the 

establishment name. However, the 

submission must include the company 

name, either as part of the establishment 

name or separately as the company 

name.’’ 

The final provision, § 1904.41(b)(10), 

states: ‘‘My company uses numbers or 

codes to identify our establishments. 

May I use numbers or codes as the 

establishment name in my submission? 

Yes, you may use numbers or codes as 

the establishment name. However, the 

submission must include the legal 

company name, either as part of the 

establishment name or separately as the 

company name.’’ 

OSHA changed ‘‘company name’’ to 

‘‘legal company name’’ in the final 

regulatory text to clarify that the legal 

company name should be entered as 

opposed to a more generic company 

name. For example, ‘‘Company X, LLC’’ 

would be entered if that is the legal 

company name for the establishment, 

not ‘‘Company X.’’ This clarification is 

consistent with the Summary and 

Explanation for proposed 

§ 1904.41(b)(10), which stated ‘‘[t]he 

submission must include the legal 

company name, either as part of the 

establishment name or separately as the 

company name’’ (87 FR 18523, 18546 

(March 30, 2022)). All companies must 

enter a legal company name, either as 

part of the establishment name field or 

the company name field. Users will be 

reminded during data submission that 

the information about the establishment 

must include the company’s legal name, 

either in the establishment field or in 

the company name field. 

OSHA welcomed public comment on 

the proposed requirement to submit the 

company name, including any 

comments on the utility of such a 

requirement and how the company 

name should be included in an 

establishment’s submission (87 FR 

18456). The agency received a number 

of comments in response to the 

comment solicitation on this topic. For 

example, Worksafe supported the 

proposed requirement to submit both 

establishment name and company name 

(Docket ID 0063). Similarly, Cal/OSHA 

commented, ‘‘The proposed inclusion of 

employers’ entity names, which we 

support, makes detailed information 

usable even when employers use 

numbers or codes to identify their 

facilities’’ (Docket ID 0084). In their 

comment, Seventeen AGs also 

supported the requirement, which they 

described as ‘‘critical[ ]’’ (Docket ID 

0045). The comment further described 

the proposal as an improvement to 

existing reporting requirements, noting 

that the requirement to disclose a legal 

name will aid job-seekers in making 

informed decisions about the injury and 

illness data for a specific employer 

(Docket ID 0045). 

In contrast, several organizations 

argued against requiring a company 

name. For example, the National 

Propane Gas Association argued that 

‘‘any research to evaluate the general 

performance or safety of a particular 

industry can be investigated on the basis 

of industry NAICS code; not company 

name’’ (Docket ID 0050). OSHA 

recognizes the value of data that is 

industry-wide for industry-based 

research, but there is additional value 

obtained through collecting and 


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publishing company names. OSHA 

intends to use the data to engage in 

company-specific activities to 

effectively address occupational health 

and safety issues, and such activities 

require the company name. 

The Phylmar Regulatory Roundtable 

(PRR) also opposed OSHA’s proposed 

requirement to include the legal 

company name. It explained that it is 

concerned ‘‘about OSHA’s, and 

particularly the public’s, ability to 

remain objective. To alleviate this 

concern, PRR recommends OSHA does 

not publish this information publicly, 

does not collect the company name, and 

uses this data for statistical purposes 

only’’ (Docket ID 0094). In addition, the 

Association of the Wall and Ceiling 

Industry also expressed strong 

opposition to including the company’s 

name, noting its concern ‘‘about 

provisions in the proposed rule that 

would unintentionally and 

unnecessarily harm construction 

businesses,’’ such as ‘‘any requirement 

that would result in public access to any 

affected company’s name and address, 

and/or signatory executive’s name and 

telephone number’’ (Docket ID 0043). 

The National Propane Gas Association 

similarly argued that OSHA’s 

assessment of the utility of the collected 

information did ‘‘not include the 

regulated companies because there is no 

evaluation of the potential damage by 

misunderstanding or misconstruing the 

information that is proposed for the 

public website’’ (Docket ID 0050). It 

further stated that ‘‘[t]he injury and 

illness reports do not include 

explanations of employees’ conduct, 

variations from company policies, 

common practices, or comparisons to 

indicate positive safety practices, days 

without injuries or illnesses, or other 

safeguards companies implement’’ 

(Docket ID 0050). 

OSHA understands these 

commenters’ concerns. However, as 

discussed elsewhere, OSHA notes that it 

has published injury and illness data by 

company name since 2009, and most 

establishments were already submitting 

company name under the previous 

requirements. Despite this history, 

opposing commenters did not provide 

any examples of burden or damage 

resulting from the publication of 

company names, nor is OSHA aware of 

any. Moreover, as discussed in more 

detail in Section III.G of this Summary 

and Explanation, OSHA’s existing Note 

to § 1904.0 makes clear that ‘‘[r]ecording 

or reporting a work-related injury, 

illness, or fatality does not mean that 

the employer or employee was at fault, 

that an OSHA rule has been violated, or 

that the employee is eligible for 

workers’ compensation or other 

benefits.’’ Further, OSHA notes that the 

signatory executive’s name and 

telephone number will not be collected 

or published under the final rule, nor 

were they under the previous rule. 

Consequently, OSHA does not find 

these comments persuasive. 

OSHA agrees with comments that 

inclusion of the legal company name 

will improve workplace safety and 

health. The primary purpose of 

collecting the company name is to make 

the data more useful for OSHA for 

activities at the company level, such as 

inspection targeting, compliance 

outreach, research, and assessment of 

company-wide compliance with the 

submission requirement. With the 

company name included, OSHA will, 

for example, be able to identify 

company-wide trends of occupational 

illnesses or injuries. Additionally, 

interested parties may also use company 

name data to improve workplace health 

and safety or to inform themselves about 

the injury and illness records of specific 

employers. 

One commenter offered an example of 

how it used company-specific 

information to improve workplace 

safety. The Strategic Organizing Center 

explained in its comment how it used 

the release of the 2020 and 2021 Injury 

Tracking Application data to publish 

reports on the rate of serious injuries at 

a particular company, which was much 

higher than the rate at other similar 

businesses. After the reports were 

published, the company responded by 

announcing that safety improvements 

were underway. OSHA agrees with this 

commenter that ‘‘the availability of 

more detailed information, including 

names and locations of employers, 

allows employers and others to make 

more meaningful comparisons’’—and, 

as a result, can lead to improvements in 

worker safety and health (Docket ID 

0079). 

After consideration of these 

comments, OSHA has decided to 

require establishments to submit 

company name, as proposed, in order to 

aid both OSHA and other interested 

parties in using the data more 

effectively. Users will be reminded 

during data submission that the 

information about the establishment 

must include the company’s legal name, 

either in the establishment field or in 

the company name field. 

F. Section 1904.41(c) 

Section 1904.41(c) of the final rule 

requires employers to electronically 

submit the required information to 

OSHA by March 2 of each year. The 

final provision simplifies the regulatory 

language in § 1904.41(c)(1)–(2) of the 

previous rule concerning the dates by 

which establishments must make their 

annual submissions. Previously, 

§ 1904.41(c)(1) included information for 

establishments on what to submit to 

OSHA during the phase-in period of the 

2016 final rule and the deadlines for 

submission during that phase-in period. 

That information is no longer relevant 

and, thus, OSHA removed it to 

streamline the section. The substantive 

information already contained in the 

previous § 1904.41(c)(1) was 

consolidated into § 1904.41(c) of the 

final rule. Like previous § 1904.41(c)(2), 

§ 1904.41(c) of the final rule requires all 

covered establishments to make their 

electronic submissions by March 2 of 

the year after the calendar year covered 

by the form(s). Also, § 1904.41(c) of the 

final rule provides an updated example 

of that requirement, explaining that the 

forms covering calendar year 2023 

would be due by March 2, 2024. As the 

example indicates, because this final 

rule becomes effective on January 1, 

2024, OSHA intends for March 2, 2024 

to be the first submission deadline for 

the new information required to be 

submitted under this rule. 

The Coalition for Workplace Safety 

commented, ‘‘Employers must have 

notice of the exact requirements of any 

final rule at the beginning of the year for 

which collected data will be 

submitted.’’ Otherwise, they argued, 

employers will not have sufficient 

notice and time to adjust their 

information collection and review 

processes (Docket ID 0058). The Flexible 

Packaging Association made a similar 

comment (Docket ID 0091). On the other 

hand, the AFL–CIO expressed 

frustration that the date of the proposed 

rule ‘‘already delayed the ability of 

OSHA to institute final reporting 

requirements . . . until at least 2024’’ 

(Docket ID 0061). 

OSHA does not agree that employers 

must have notice of the requirements of 

any final rule at the beginning of the 

calendar year for which the data will be 

submitted. The commenters who made 

this assertion cite no official rule or 

other legal authority to support it, and 

OSHA is not aware of any such rule 

regarding calendar years and reporting 

requirements. It is OSHA’s position that 

it was not necessary for the final rule to 

be published before the end of 2022 in 

order for OSHA to begin collecting 2023 

data in 2024. OSHA anticipates that 

employers will have sufficient time 

between publication of the final rule in 

2023 and the first submission deadline 

in 2024 to make any changes to their 

submission systems that they determine 

should be made. Indeed, the final rule 


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does not make any changes to the 

recordkeeping requirements for 2023; 

employers will continue to record the 

same information as they were required 

to record before this final rule was 

issued. 

Both the Flexible Packaging 

Association and the Coalition for 

Workplace Safety commented that the 

changes in the final rule will require 

technological changes within and 

outside of OSHA that will require 

testing for accuracy and effectiveness, 

and that OSHA must account for the 

time it will take to make such 

adjustments (Docket IDs 0058, 0091). To 

the extent that these commenters are 

concerned about changes they plan to 

make to their own recordkeeping or data 

submission systems, OSHA notes that 

these types of changes are not a 

requirement of the final rule. The final 

rule simply requires submission of the 

data. OSHA will continue to provide 

three options for employers to submit 

the data (manual entry via web form, 

batch upload via csv file, and API), and 

it will continue to be up to the 

individual employer to decide which 

option to use. To the extent that these 

comments focus on changes OSHA must 

make to the ITA to accept the new 

submissions, OSHA has considered this 

issue and anticipates being prepared to 

accept these submissions beginning in 

early 2024. 

Some commenters also argued for an 

annual submission date later than 

March 2 to allow employers more time 

to collect and submit the data from the 

previous year. For example, the 

Coalition for Workplace Safety 

commented that ‘‘OSHA should push 

future deadlines to allow companies to 

submit past March 2; this date is too 

early in the year and does not provide 

enough time for companies to collect 

and submit this data’’ (Docket ID 0058; 

see also Docket ID 0091). The Employers 

E-Recordkeeping Coalition similarly 

commented: ‘‘For example, one national 

employer with approximately 700 

establishments that would be covered 

by the new requirement to submit 300 

and 301 level data currently takes 

approximately 3 months to audit and 

submit its injury and illness records to 

ensure that its 300A data submissions 

are accurate. Manually keying in every 

line of hundreds of 300 log data, or if 

that is not necessary, at least keying in 

thousands of 301 Reports would be 

exponentially more burdensome—likely 

infeasible given the annual March 2nd 

submission deadline.’’ (Docket ID 0087). 

In response, OSHA is not persuaded 

that the March 2 date is too early in the 

year to submit data for the previous 

year. OSHA notes that § 1904.32 already 

requires employers to review the Form 

300 Log entries and complete, certify, 

and post the Form 300A annual 

summary no later than February 1 of the 

year following the year covered by the 

records. Therefore, employers must 

already have collected and reviewed all 

of their establishments’ 300 Log 

information for the previous year by 

February 1 of each year. Having 

completed this review, they will then 

have an additional month to submit the 

data. The scenario posed by the 

Employers E-Recordkeeping Coalition 

regarding manually typing in hundreds 

or thousands of lines of data would only 

arise if a company with many 

establishments chose to enter all the 

data via webform. There are three data 

submission methods available, as 

discussed further elsewhere in this 

preamble, and entering data via 

webform would be the least efficient 

method for a company with many 

establishments. 

After consideration of these 

comments, OSHA has decided to retain 

the proposed data submission deadline 

in the final rule and require submission 

of the previous calendar year’s data by 

March 2 of each year. 

G. Additional Comments Which 

Concern More Than One Section of the 

Proposal 

1. General Comments 

There were several comments asking 

OSHA to add data submission 

requirements for other types of 

establishments. For example, Worksafe 

recommended adding a requirement for 

companies with five or more 

establishments to collect and submit 

part 1904 occupational injury and 

illness data for those work locations and 

establishments (Docket ID 0063). 

Similarly, the National Nurses Union 

recommended adding a submission 

requirement for companies with 500 or 

more employees across multiple 

establishments (Docket ID 0064). 

Neither of these recommendations is 

being incorporated into the final rule. 

Data submission requirements for multiestablishment companies, regardless of 

the number of establishments or size of 

the employer, were not included in any 

proposed regulatory provision or 

alternative in the NPRM; nor was the 

topic otherwise addressed by OSHA as 

part of the proposed rule. As such, 

OSHA does not believe that a 

requirement for multi-establishment 

employers to submit data to OSHA 

would be a logical outgrowth of the 

proposal. (Although OSHA believes that 

these recommendations are out of the 

scope of the proposal, the agency notes 

that it proposed similar ideas as 

Alternative I in the 2016 rulemaking 

and rejected that Alternative, in part, 

due to practicality concerns. OSHA does 

not believe that those concerns have 

been obviated in the years since the 

issuance of the 2016 final rule.) 

Similarly, there was a comment 

expressing concern that the rule will not 

capture data for workers classified as 

independent contractors, and 

‘‘encourag[ing] OSHA to study the 

benefits of data collection for all 

workers, regardless of classification, 

including those who may be improperly 

designated as independent contractors’’ 

(Docket ID 0045). As interested parties 

are generally aware, the Occupational 

Safety and Health (OSH) Act of 1970 

only applies to ‘‘employment’’ (see 29 

U.S.C. 653(a)). Businesses do not meet 

the definition of the term ‘‘employer’’ in 

Section 3(5) of the OSH Act, 29 U.S.C. 

652(5), unless they have employees. 

Similarly, individuals are not 

considered ‘‘employees’’ under the OSH 

Act unless they are employed by an 

employer (29 U.S.C. 652(6)). Thus, 

independent contractors are not covered 

under the OSH Act. The agency 

understands that, at times, employees 

are misclassified as independent 

contractors and are consequently not 

receiving the protections that they 

should. OSHA has other initiatives to 

address that important issue. However, 

the agency finds that it is beyond the 

scope of this rule, which only covers 

employees. 

There were also comments asking 

OSHA to expand the data requested on 

OSHA’s recordkeeping forms. For 

example, the National Safety Council 

commented that OSHA should collect 

more demographic data, such as race or 

ethnic origin, and that OSHA should 

include a method to identify and collect 

basic information on musculoskeletal 

disorders (MSDs) (Docket ID 0041). 

Similarly, Unidos US, Farmworker 

Justice, and Texas RioGrande Legal Aid 

commented that OSHA should require 

employers to report race and ethnicity 

data in case-specific reports and publish 

the data alongside the other casespecific information (Docket ID 0078). 

ConnectiCOSH proposed a requirement 

for employers to document when 

workers have complained about 

retaliation (Docket ID 0069). 

Also related to expanding the data 

requested on the OSHA recordkeeping 

forms, the Phylmar Regulatory 

Roundtable (PRR) commented that 

instead of requesting information from 

the Forms 300 and 301, OSHA should 

revise the Form 300A to include more 

useful identifiers. For example, 

including ‘‘heat’’ as a type of illness, 


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and ‘‘indoor,’’ ‘‘outdoor,’’ ‘‘office,’’ 

‘‘distribution facility,’’ and ‘‘off-site’’ for 

a field titled ‘‘location’’ would give 

OSHA more information without 

identifying employees (Docket ID 0094). 

More generally, the Employers ERecordkeeping Coalition commented 

that OSHA should create a committee or 

task an existing committee to explore 

changes to injury and illness 

recordkeeping, including to consider 

adopting ASTM E2920–14 (Standard 

Guide for Recording Occupational 

Injuries and Illnesses), an international 

standard that would allow data 

comparisons with other countries 

(Docket ID 0087). 

These recommendations to expand or 

change recordkeeping forms, or to 

explore broader changes to injury and 

illness recordkeeping, such as adopting 

an ASTM standard, were not included 

in any proposed regulatory provision or 

alternative in the NPRM, nor were these 

topics otherwise addressed by OSHA as 

part of the proposed rule. As such, these 

topics are not within the scope of this 

rulemaking. Similarly, comments 

raising issues with OSHA’s recording 

criteria or other parts of part 1904 that 

are not at issue in this rulemaking (e.g., 

Docket ID 0017 (related to the 

recordability of COVID–19 cases)) are 

out of scope of this rulemaking. 

The National Safety Council (NSC) 

provided a comment about OSHA 

enforcement of the reporting 

requirements: ‘‘First, OSHA must take 

steps to improve reporting compliance. 

The Department of Labor Office of 

Inspector General report provides some 

key recommendations for OSHA to 

improve reporting: 1. Develop guidance 

and train staff on identifying 

underreporting, 2. Issue citations for all 

late reporters, 3. Clarify guidance on 

documenting essential decisions, 

collecting evidence to demonstrate 

employers corrected all identified 

hazards, and monitoring employer 

conducted investigations, and 4. 

Conduct inspections on all Category 1 

incidents. These are key 

recommendations to improve the 

original data. Additionally, the National 

Academy of Sciences (NAS) produced a 

2018 study on OSHA data collections 

acknowledging the limitations of the 

current data system(s) and made several 

recommendations for improving and 

supplementing the OSHA data that 

should also guide OSHA actions.’’ 

(Docket ID 0041; see also Docket ID 

0080 (recommending OSHA evaluate 

procedures for compliance and 

enforcement)). 

With respect to the Office of the 

Inspector General’s 2018 Report, OSHA 

Needs to Improve the Guidance for its 

Fatality and Severe Injury Reporting 

Program to Better Protect Workers, 

OSHA agreed that better case 

documentation can help promote 

consistency in the issuance of citations, 

as well as the determination of whether 

to conduct an inspection or a rapid 

response investigation. However, OSHA 

was concerned that the OIG’s report 

suggested that the burden to ensure 

reporting falls on the agency when the 

OSH Act clearly states that it is the 

employer’s responsibility to comply 

with the standards under Section 

5(a)(2). The agency encourages 

employers to comply with illness and 

injury reporting requirements through a 

variety of enforcement, outreach, and 

compliance assistance tools. OSHA’s 

full response to the OIG’s report can be 

found in Appendix B of that report at 

https://www.oig.dol.gov/public/reports/ 

oa/2018/02-18-203-10-105.pdf. 

With respect to the National 

Academies of Science, Engineering, and 

Medicine (NAS) report, A Smarter 

National Surveillance System for 

Occupational Safety and Health in the 

21st Century, OSHA concludes the final 

rule is responsive to that report (see 

OSHA–2021–0006–0097). This NAS 

report was the result of a joint request 

from NIOSH, BLS, and OSHA to NAS, 

asking NAS to conduct a study in 

response to the need for a more 

coordinated, cost-effective set of 

approaches for occupational safety and 

health surveillance in the United States. 

The NAS report suggested that 

electronic collection of Form 300 and 

301 data would allow OSHA to focus its 

interventions and prevention efforts on 

hazardous industries, workplaces, 

exposures, and high-risk groups. 

Additionally, the NAS report made 

recommendations on ways the public 

data could be utilized by employers, 

researchers, government agencies, and 

workers (Docket ID 0061). Further, 

according to the report, collecting Form 

300 and 301 data electronically would 

also allow for expanding and targeting 

outreach to employers to improve 

hazard identification and prevention 

efforts, and would give OSHA the 

opportunity to advise employers on how 

their rates of injury and illness compare 

with the rest of their industry. OSHA 

agrees with these assessments regarding 

the value of electronically collecting 

Form 300 and 301 data, as reflected by 

the final rule. 

PRR commented, ‘‘to ensure the 

Agency remains fair, balanced, and 

trusted, any targeting for enforcement 

that results from submission of Forms 

300, 301 and 300A should be based on 

a systematic approach that is 

standardized and impacts all industries 

in [a]ppendix B subpart E, equally’’ 

(Docket ID 0094). In response, OSHA 

agrees that it should take a systematic 

approach to enforcement targeting based 

on the data it collects from these 

recordkeeping forms. As addressed 

elsewhere in this preamble (e.g., Section 

III.B.4 of this Summary and 

Explanation), OSHA’s systematic 

approach to enforcement in site-specific 

targeting using data collected from the 

Form 300A is illustrated by OSHA’s 

directive on Site-Specific Targeting 

(SST) (CPL 02–01–064, issued on 

February 7, 2023, https://www.osha.gov/ 

enforcement/directives/cpl-02-01-064). 

In this directive, OSHA states that it 

will generate inspection lists of: (1) 

establishments with elevated Days 

Away, Restricted, or Transferred 

(DART) rates for CY 2021; (2) 

establishments with upward trending 

rates for the range of CY 2019–2021; (3) 

establishments that did not provide the 

required 2021 Form 300A data to 

OSHA; and (4) establishments with low 

DART rates in CY 2021 to verify data 

accuracy and quality control. OSHA’s 

Office of Statistical Analysis provides 

each Area Office (AO) with access to 

software and databases that include the 

establishments on the Inspection List. 

AOs must generate inspection cycles 

using the SST software that randomly 

selects the establishments and shall 

determine inspection cycle size (i.e., 5 

to 50 establishments) based on available 

resources and the geographic range of 

the office. Once initiated, the entire 

cycle must be completed. Within a 

cycle, the AO may schedule and inspect 

the selected establishments in any order 

that makes efficient use of available 

resources. 

As indicated by the content of the 

directive, while OSHA does take a 

systematic approach to enforcement 

targeting, OSHA does not agree that any 

targeting for enforcement resulting from 

submission of the data from Forms 300, 

301, and 300A should necessarily 

impact all industries in appendix B 

subpart E equally. If reported data were 

to show a particular industry had a very 

high rate of occupational illnesses or 

injuries, enforcement targeting that 

particular industry would be 

appropriate. The final rule provides 

more accurate and detailed information 

that will be used to protect workplace 

health and safety. 

Reps. Foxx and Keller commented, 

‘‘DOL further revealed its intention to 

reward Big Labor in its extension of the 

proposed rule’s comment period, citing 

a single request from the AFL–CIO, 

despite the fact that it has routinely 

denied similar requests from business 

stakeholders and members of Congress’’ 


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(Docket ID 0062). In response, OSHA 

notes that the agency received two 

requests for extension of the comment 

period: from the AFL–CIO in a letter 

dated May 5, 2022 (Docket ID 0027), and 

from the Employers E-Recordkeeping 

Coalition in a letter dated May 20, 2022 

(Docket ID 0032). OSHA determined 

that it would be reasonable to extend 

the comment period and offered the 

same additional 30 days to everyone 

(see 87 FR 31793–4 (May 25, 2022)). 

2. Misunderstandings About Scope 

Some commenters expressed concern 

that the proposal would expand the 

number of employers required to submit 

data. The Chamber of Commerce 

commented that the lists of designated 

industries in Appendices A and B ‘‘are 

long and not that limiting,’’ and the 

National Propane Gas Association 

commented, ‘‘[a]ccording to the 

proposed revisions to [a]ppendix A and 

proposed creation of [a]ppendix B, the 

NPRM would expand reporting 

requirements to more establishments 

within the propane industry’’ (Docket 

IDs 0050, 0088). The National Propane 

Gas Association also expressed 

disagreement with ‘‘the proposed 

creation of [a]ppendix B to the extent 

that it includes all the industries already 

listed in [a]ppendix A’’ (Docket ID 

0050). In response, OSHA notes that 

appendix B does not include all the 

industries listed in appendix A; rather, 

appendix B is a subset of appendix A. 

Additionally, as explained in the NPRM 

and elsewhere in this preamble, all of 

the establishments that will be required 

to submit information to OSHA under 

the new requirements in this final rule 

were already required to submit 

information to OSHA under the 

previous requirements, so it is not the 

case that this rule expands the number 

of establishments required to report. 

The National Propane Gas Association 

also recommended that ‘‘OSHA retain 

the current scope and applicability of 

[§ ]1904.41(a)(1) to apply to employers 

with 250 or more employees within the 

industries identified in [a]ppendix A,’’ 

rather than ‘‘expanding’’ the 

requirement to ‘‘more employers and 

more establishments’’ (Docket ID 0050). 

As explained in the NPRM and the 

preamble to this final rule, OSHA did 

not propose to expand the scope of 

[§ ]1904.41(a)(1). Rather, the agency 

explicitly stated that the proposal 

‘‘would not impose any new 

requirements on establishments to 

electronically submit information from 

their Form 300A,’’ however, ‘‘proposed 

§ 1904.41(a) would remove the 

electronic submission requirement for 

certain establishments with 250 or more 

employees.’’ Accordingly, the 

commenter’s concerns are misplaced. 

The National Propane Gas Association 

also stated that OSHA is proposing to 

increase ‘‘the frequency of submissions’’ 

of injury and illness reports (Docket ID 

0050). OSHA did not propose to 

increase the frequency of submissions of 

injury and illness data; rather, 

employers required to submit such data 

will continue to be required to do so 

once a year, as under the current 

requirements. 

3. Diversion of Resources 

In the 2019 final rule, OSHA stated 

that rescinding the information 

submission requirements would allow 

employers to devote more of their 

resources towards compliance with 

safety and health standards (84 FR 394). 

Similarly, several commenters to the 

current NPRM also asserted that the 

proposed rule would be 

counterproductive to the goal of 

improving safety and health because 

complying with the rule would divert 

resources that would otherwise be 

devoted to other worker safety and 

health efforts (e.g., Docket IDs 0060, 

0062, 0070, 0088). In most cases these 

assertions were unsupported (e.g., 

Docket ID 0062 (simply asserting that 

compliance with the rule would divert 

employer resources from workplace 

safety and health initiatives without 

further explaining how it would do so)). 

A few commenters, however, did 

make more concrete statements that 

might relate to this issue. For example, 

the Chamber of Commerce, in 

challenging OSHA’s economic analysis, 

claimed that the proposal would require 

safety department personnel to spend 

time on preparation of the data for 

submission, presumably at the cost of 

spending time improving safety (Docket 

ID 0088). But that diversion, if it occurs, 

would be required by the recordkeeping 

rule itself, not by the requirement to 

submit records. Employers have always 

been required to keep accurate records. 

To the extent that the argument is that 

employers will take greater care with 

records to be submitted to OSHA and 

eventually published, that is not a result 

of the rule so much as it is a result of 

employers not having taken adequate 

care previously. Similarly, the need to 

ensure that information that could 

compromise workers’ privacy is not 

submitted inappropriately (see, e.g., 

Docket ID 0081) should be obviated by 

entering the information carefully in the 

first place (see, e.g., the instructions on 

Form 301: ‘‘Re fields 14 to 17: Please do 

not include any personally identifiable 

information (PII) pertaining to worker(s) 

involved in the incident (e.g., no names, 

phone numbers, or Social Security 

numbers’’)). 

4. Lagging v. Leading Indicators 

OSHA also received several 

comments which focused on OSHA’s 

recordkeeping system’s use of lagging, 

rather than leading indicators. Broadly 

speaking, leading indicators are 

proactive, preventive, and predictive 

measures that provide information 

about the effective performance of an 

employer’s safety and health activities. 

They measure events leading up to 

injuries, illnesses, and other incidents 

and reveal potential problems in an 

employer’s safety and health program. 

In contrast, lagging indicators measure 

the occurrence and frequency of events 

that occurred in the past, such as the 

number or rate of injuries, illnesses, and 

fatalities (see https://www.osha.gov/ 

sites/default/files/OSHA_Leading_

Indicators.pdf). 

On the issue of lagging versus leading 

indicators, the American Society of 

Safety Professionals (ASSP) commented, 

‘‘ASSP advocates a comprehensive riskbased approach that measures leading as 

well as lagging indicators. Leading 

indicators provide critical information 

about an organization’s true 

commitment to safety and health, at 

times acting as a better gauge of a 

system’s vulnerabilities or effectiveness 

than lagging indicators’’ (Docket ID 

0031; see also Docket IDs 0041, 0053). 

Similarly, PRR commented, ‘‘The safety 

community has been actively moving 

away from using case rates as indicators 

of a safety program’s effectiveness and 

has been experimenting with various 

leading indicators’’ (Docket ID 0094). 

PRR further commented that the use of 

lagging indicators ‘‘leads the general 

public, which is uninformed, to think 

that there is direct correlation between 

injury and illness rates and the 

effectiveness of an employer’s worker 

safety and health programs and 

practices’’ (Docket ID 0094; see also 

Docket IDs 0043, 0088). 

In addition, ASSP ‘‘recommends that 

OSHA develop guidance on leading 

indicators and overhaul the current 

recordkeeping system to use both 

leading and lagging indicators as 

indicators of the effectiveness of a 

business’ safety and health management 

system’’ (Docket ID 0031). In its 

comment, ASSP referred the ANSI/ 

ASSP Z16.1–2022 standard (‘‘Safety and 

Health Metrics and Performance 

Measures’’), which contains leading 

indicators, to OSHA for consideration. 

(OSHA has placed a copy of ANSI/ASSP 

Z16.1–2022 standard in the docket as a 

copyright protected reference (Docket ID 

0101).) 


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In response to ASSP’s 

recommendation that OSHA ‘‘overhaul 

the current recordkeeping system to use 

both leading and lagging indicators as 

indicators of the effectiveness of a 

business’ safety and health management 

system[,]’’ including through a review of 

the referenced ANSI/ASSP standard, 

OSHA notes that such an overhaul is 

outside of the scope of this rulemaking, 

which focuses only on the annual 

electronic submission of data which 

employers are already required to keep. 

The agency did not propose changes to 

the data which should be kept, e.g., 

whether such data should include 

leading indicators, and if so, which. 

That said, OSHA agrees with ASSP 

that leading indicators are an important 

tool to assess the effectiveness of 

workplace safety and health programs. 

However, as ASSP acknowledges, 

leading indicators are not the only such 

tool. As OSHA has explained many 

times before (see, e.g., https://

www.osha.gov/safety-management/ 

program-evaluation), both leading and 

lagging indicators are valuable 

performance measures. These two 

measures work together to provide a 

comprehensive picture of worker safety 

and health in an industry or particular 

workplace. (For more information on 

the benefits and utility of the lagging 

indicators that will be collected and 

published in this rulemaking, see 

Section III.B.4 of this Summary and 

Explanation.) This rulemaking and 

OSHA’s recordkeeping system in 

general focuses on lagging indicators. 

Other OSHA programs, such as the 

Voluntary Protection Programs (VPP) 

which recognizes employers and 

workers in the private industry and 

Federal agencies who have 

implemented effective safety and health 

management systems and maintain 

injury and illness rates below national 

Bureau of Labor Statistics averages for 

their respective industries, encourage 

the use of leading indicators. And, as 

ASSP suggests, OSHA has previously 

published guidance related to leading 

indicators (see, e.g., https://

www.osha.gov/sites/default/files/ 

OSHA_Leading_Indicators.pdf; https://

www.osha.gov/leading-indicators). 

Moreover, OSHA notes that its 

recordkeeping system is in line with 

Congress’ instructions in the OSH Act 

(see, e.g., Section 8(c)(2) (‘‘The Secretary 

. . . shall prescribe regulations 

requiring employers to maintain 

accurate records of, and to make 

periodic reports on, work-related 

deaths, injuries and illnesses other than 

minor injuries requiring only first aid 

treatment and which do not involve 

medical treatment, loss of 

consciousness, restriction of work or 

motion, or transfer to another job[;]’’); 

see also Section 8(g)(1) (‘‘The Secretary 

and Secretary of Health and Human 

Services are authorized to compile, 

analyze, and publish, either in summary 

or detailed form, all reports or 

information obtained under this 

section.’’)). 

As to the argument that OSHA’s 

planned publication of lagging 

information will mislead the public, 

OSHA has previously published data 

from establishments’ CY 2016–2021 

300A forms online and has long given 

out redacted Forms 300 and 301 in 

response to FOIA requests, and the 

agency has not received reports of 

widespread public confusion, nor have 

interested parties pointed to such 

reports of confusion in their comments 

in this rulemaking. Consequently, 

OSHA is not persuaded that these 

parties’ hypothetical concerns should 

change the course of this rulemaking. 

Nevertheless, to help decrease the risk 

that members of the public might 

inaccurately assume that an 

establishment’s report of an injury or 

illness always suggests a deficiency in 

that establishment’s safety and health 

system, OSHA will continue to include 

a reference to the Note to 29 CFR 1904.0 

in the notes below the links to the 

website on which it publishes the safety 

and health data submitted pursuant to 

this rulemaking (see Note to § 1904.0 

(‘‘Recording or reporting a work-related 

injury, illness, or fatality does not mean 

that the employer or employee was at 

fault, that an OSHA rule has been 

violated, or that the employee is eligible 

for workers’ compensation or other 

benefits.’’)). 

OSHA also received comments 

arguing that requiring the submission of 

injury and illness data from the 

recordkeeping forms, and publishing 

data from the submissions, will divert 

employer focus from leading indicators. 

For example, ASSP commented, 

‘‘OSHA’s focus on lagging injury and 

illness data has at times created a 

stumbling block to systemic safety 

program improvements by actively 

discouraging employers from embracing 

a holistic risk-based approach’’ (Docket 

ID 0031). Similarly, the U.S. Poultry & 

Egg Association commented, ‘‘In this 

proposal, OSHA is myopically focusing 

on injuries and injury rates . . . Despite 

what OSHA may believe, because 

employers will know that their 

information will be made available 

worldwide, they will focus greater 

attention on these issues at the expense 

of focusing on leading safety metrics’’ 

(Docket ID 0053). The North American 

Meat Institute made a similar comment 

(Docket ID 0076). 

In response, OSHA notes that, as 

discussed in Section III.G of this 

Summary and Explanation, employers 

are already required to complete these 

forms, and there is no reason why the 

new requirement to submit information 

from these forms would prevent 

employers from additionally 

implementing proactive measures as 

part of a comprehensive safety and 

health program. The agency is unaware 

of any resulting increase in 

inappropriate focus by employers on 

recordable injuries/illnesses vs. leading 

indicators, commenters did not provide 

any examples, and it is not clear why 

publishing case-specific information 

from the OSHA Form 300 and 301 

would cause employers to focus 

inappropriately on recordable injuries 

and illnesses in a way that collecting 

and publishing establishment-specific 

information from the OSHA Form 300A 

Annual Summary did not. Moreover, as 

discussed in Section III.B.4 of this 

Summary and Explanation, OSHA’s 

publication of the establishmentspecific, case-specific, injury and illness 

data will benefit employers by giving 

them access to a larger data set that can 

be used for benchmarking. This 

increased access to information will 

enable employers to proactively 

improve their workplace safety and 

health. 

5. Employer Shaming 

The National Propane Gas Association 

commented: ‘‘It is assumed that the 

agency’s ambition is to embarrass, 

shame, or otherwise damage the 

reputation of employers as a means to 

induce some undefined improvement. 

Underscoring this ambition is the 

agency’s presumption that employers 

are not invested in employees’ safety; 

that public scrutiny is the only 

enticement to improve the workplace 

rather than an employers’ natural 

concern for employees’ safety. We 

disagree with the agency’s lack of faith 

in employers . . . .’’ (Docket ID 0050). 

In response, this appears to be a 

misunderstanding. There is no mention 

in the preamble to the proposed rule of 

shaming, embarrassing, or damaging the 

reputation of employers; nor is this the 

agency’s intent. On the contrary, the 

preamble specifically stated that 

‘‘publication of establishment-specific, 

case-specific injury and illness data 

would benefit the majority of employers 

who want to prevent injuries and 

illnesses among their employees, 

through several mechanisms’’ (87 FR 

18533–4). Those mechanisms include 

‘‘enable[ing] interested parties to gauge 


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the full range of injury and illness case 

types at the establishment,’’ allowing 

employers to ‘‘compare case-specific 

injury and illness information at their 

establishments to those at comparable 

establishments, and set workplace 

safety/health goals benchmarked to the 

establishments they consider most 

comparable,’’ and ‘‘allow[ing] 

employees to compare their own 

workplaces to the safest workplaces in 

their industries’’ (id.). OSHA further 

stated that, ‘‘if employees were able to 

preferentially choose employment at the 

safest workplaces in their industries, 

then employers might take steps to 

improve workplace safety and health 

(preventing injuries and illnesses from 

occurring) in order to attract and retain 

employees’’ (id.). As OSHA has 

discussed elsewhere in this preamble, 

the currently available 300A data has 

already been critical to efforts to 

improve worker safety and health, and 

publishing the case-specific data 

required to be submitted under this rule 

will further improve workplace safety 

and health (see, e.g., Section III.B.4 of 

this Summary and Explanation). The 

purpose of this rule is to improve 

workers’ well-being not by shaming 

their employers, but by providing 

employers and other interested parties 

with valuable information that can be 

used to better understand and address 

occupational safety and health hazards. 

6. Impact on Employee Recruiting 

The Precision Machined Parts 

Association commented, ‘‘PMPA 

believes that posting this information on 

the internet without explanation will 

not improve workplace safety but will 

make it tougher for manufacturers to 

recruit young people and qualified 

employees into manufacturing careers’’ 

(Docket ID 0055). 

Similarly, the North American Die 

Casting Association commented, ‘‘This 

proposed rulemaking will only serve to 

hurt the image of the industry and 

discourage individuals from seeking 

careers in manufacturing. In a recent 

survey, 96 percent of NADCA members 

report they have job openings in their 

facilities, and OSHA’s actions in making 

these reports public will create a false 

image of the industry as 

dangerous. . . . At a time when 

businesses are already struggling to 

recruit employees and compete globally, 

OSHA should not continue to erect 

additional barriers to job growth and 

drive a wedge between employer and 

employee.’’ (Docket ID 0056). The 

Precision Metalforming Association and 

National Tooling and Machining 

Association expressed similar concerns 

in their joint comment (Docket ID 0057). 

In response, OSHA notes that 

supporting and explanatory information 

has always been included on its website 

for ODI as well as ITA data, and the 

agency plans to continue this practice. 

For example, the ITA website contains 

several explanations of the data that 

address commenters’ specific concerns, 

including a note that ‘‘[r]ecording or 

reporting a work-related injury, illness, 

or fatality does not mean that the 

employer or employee was at fault, that 

an OSHA rule has been violated, or that 

the employee is eligible for workers’ 

compensation or other benefits’’ 

(https://www.osha.gov/EstablishmentSpecific-Injury-and-Illness-Data). The 

ODI website also includes explanatory 

notes (https://www.osha.gov/ords/odi/ 

establishment_search.html). The agency 

has published establishment-specific 

information from the Form 300A 

summary since 2009 but is unaware of 

any resulting detrimental effects on the 

recruitment of young people and 

qualified employees into manufacturing 

careers; nor did the commenters provide 

any examples. On the other hand, 

OSHA notes that the data could assist 

with new employee recruitment efforts 

by providing prospective employees 

with more information about injuries 

and illnesses occurring at the 

establishment. For example, a 

prospective employee might be 

concerned by the number of injuries or 

illnesses listed in the information from 

an establishment’s 300A Summary, but 

the case-specific forms allow 

establishments to provide more 

information regarding the injuries and 

illnesses summarized in the 300A, 

allowing prospective employees to make 

more informed decisions. 

7. Legal Disputes 

AIHA commented, ‘‘Data related to 

personal injury can be combined with 

other readily available data from 

newspapers, community ‘gossip’, etc., 

and then used to identify the affected 

individuals. Once identified, the 

individuals could be harassed or 

encouraged to file lawsuits or additional 

claims against employers’’ (Docket ID 

0030). Similarly, the National Propane 

Gas Association stated that OSHA 

ignored the ‘‘potential for frivolous 

lawsuits or investigations that could be 

fueled by the incomplete information 

that the agency intends to publish’’ 

(Docket ID 0050). 

The Motor and Equipment 

Manufacturers Association commented, 

‘‘Making such data publicly available 

would allow third parties to use it for 

reasons wholly unrelated to safety.’’ 

This commenter provided the following 

example: ‘‘plaintiffs’ attorneys, labor 

unions, competitors, and special interest 

groups would be able to use such 

information—selectively or otherwise— 

as leverage against companies during 

legal disputes, union organizing drives, 

contract negotiations, or as part of an 

effort to prevent a company from 

entering a specific market’’ (Docket ID 

0075; see also Docket ID 0088). 

The Chamber of Commerce similarly 

argued that, ‘‘[M]aking these data 

publicly available would very likely 

lead to less desirable outcomes, such as 

increased litigation from plaintiffs’ 

attorneys looking to assert that the 

employer was at fault to overcome 

workers’ compensation no-fault 

limitations, as well as unions using 

these data to mischaracterize an 

employer’s safety record during 

organizing campaigns or contract 

negotiations.’’ (Docket ID 0088). 

As discussed above, the agency has 

published establishment-specific 

information from the Form 300A 

summary since 2009 but is unaware of 

any resulting increase in legal disputes 

or unwarranted reputational damage; 

nor did the commenters provide any 

specific examples. As noted above, 

given that this final rule requires the 

submission of information that can 

provide details on, and context for, the 

information from the Form 300A that is 

already being made public, the new 

information may help provide a fuller, 

more accurate picture of worker safety 

and health at a given establishment. 

This additional context and detail could 

actually help protect businesses against 

attempts to mischaracterize their safety 

records, whether in the legal context or 

otherwise. As discussed above, it is also 

important to note that employees and 

their representatives already have the 

right to request and receive injury and 

illness records from their employers (see 

29 CFR 1904.35). While OSHA 

recognizes that such access is on a 

smaller scale, there is already the 

potential for the data to be used for 

these purposes, independent of this 

regulation. Finally, also as discussed 

above, to the extent that the published 

data serves to address the problem of 

information asymmetry in the labor 

market, OSHA considers that a positive 

consequence of the final rule. 

8. No Fault Recordkeeping 

OSHA also received several 

comments asserting that the proposed 

rule would be inconsistent with the ‘‘no 

fault’’ nature of the recordkeeping 

system, as set forth in the note to 29 

CFR 1904.0: ‘‘Recording or reporting a 

work-related injury, illness, or fatality 

does not mean that the employer or 

employee was at fault, that an OSHA 


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rule has been violated, or that the 

employee is eligible for workers’ 

compensation or other benefits’’ (e.g., 

Docket IDs 0053, 0086, 0087, 0090, 

0091). OSHA received similar 

comments on the 2013 NPRM (the 

rulemaking which culminated in the 

2016 final rule) (see 81 FR 29666–67). 

These comments misconstrue what 

OSHA means by no fault reporting. As 

OSHA has explained previously, it will 

not use the mere fact that an employer 

has recorded or reported and injury or 

illness as evidence that the employer 

violated the OSH Act or an OSHA 

standard. But that is not the same as 

saying that the data recorded and 

reported have no valid use or effect. 

OSHA has used employer reports of 

worker deaths and injuries, as well as 

press reports and referrals from other 

agencies, as a basis for investigating 

conditions at an affected workplace 

throughout its entire history. For just as 

long, OSHA’s first step in all of its 

workplace inspections has been an 

examination of the establishment’s 

injury and illness records. OSHA’s very 

first Compliance Operations Manual, 

issued in January 1972, states that 

‘‘During the course of a routine 

inspection, the CSHO shall inspect 

those employer records required to be 

kept by the Act and by [p]art 1904’’ 

(Docket ID 0100, p. V–15). And today, 

the instruction is the same: ‘‘At the start 

of each inspection, the CSHO shall 

review the employer’s injury and illness 

records (including the employer’s 

OSHA 300 logs, 300A summaries, and 

301 incident reports) for three prior 

calendar years’’ (see OSHA’s Field 

Operations Manual, CPL 02–00–164, 

Chapter III, Paragraph VI.A.1 (April 14, 

2020) available at https://www.osha.gov/ 

enforcement/directives/cpl-02-00-164). 

And OSHA has always used the 

information in those records to guide 

the nature of its inspections (see, e.g., 

McLaughlin v. A.B. Chance Co., 842 

F.2d 724 (4th Cir. 1988) (noting that 

during a complaint inspection about a 

particular machine, ‘‘it would be 

reasonable for the investigator to 

determine if there had been injuries 

from the use of said machine’’)). Indeed, 

for many years, OSHA’s inspections 

plans explicitly conditioned the scope 

of inspections on the data found in 

those records (In re Establishment 

Inspection of Kohler Co., 935 F.2d 810 

(7th Cir. 1991) (‘‘OSHA applied to a 

federal magistrate for an administrative 

search warrant that would require 

Kohler to produce the records and to 

submit to a comprehensive inspection of 

its entire facility if those records 

revealed that Kohler’s injury rate 

exceeded the national average for 

manufacturing concerns.’’)). In the last 

five years OSHA has used information 

from establishments’ 300A Forms 

submitted under the 2016 final rule to 

prioritize which workplaces to inspect 

through OSHA’s Site-Specific Targeting 

program. It does so by using a neutral 

administrative scheme to identify 

hazards that OSHA wants to address 

through its enforcement resources. 

However, OSHA will not use the casespecific injury and illness information 

submitted to simply choose a particular 

employer to inspect outside of the 

neutral administrative scheme noted 

above (see Marshall v. Barlow’s Inc., 436 

U.S. 307 (1978)). Thus, the assertion by 

the Employers E-Recordkeeping 

Coalition, ‘‘that the principal reason that 

the data collected pursuant to this 

proposed rule is published by OSHA 

presumes and is based on a premise of 

employer fault,’’ is wrong (see Docket ID 

0087). 

OSHA continues to recognize that the 

mere fact of any particular injury or 

illness occurring is not an indication of 

employer fault. But the reports of those 

injuries and illnesses can provide 

important information about hazards 

that exist at workplaces, whether or not 

those hazards are addressed by existing 

OSHA standards. As explained 

elsewhere, this information can be 

useful not only to OSHA, but also to 

researchers, workers, and even other 

employers with similar facilities (see, 

e.g., Docket IDs 0030, 0045). For the 

same reasons, as discussed elsewhere in 

this preamble, publication of the 

submitted data is not intended to 

‘‘shame’’ employers (see Docket ID 

0081); it is merely to allow use of the 

data in ways that will promote 

occupational safety and health. 

9. Confidentiality of Business Locations 

One commenter was concerned about 

the consequences of disclosing business 

locations for certain establishments. 

Specifically, the National Retail 

Federation commented that some 

business locations need to remain 

confidential because ‘‘[m]any retailers 

deal with pharmaceuticals, hazardous 

materials, or other highly sought after 

and/or dangerous products,’’ and 

‘‘[e]xposing the locations of these 

operations could leave them vulnerable 

to bad actors seeking the materials for 

their own use or sale on the black 

market’’ (Docket ID 0090). 

In response, OSHA notes that it has 

long published certain information from 

employers’ Form 300A, including 

business locations. As explained 

elsewhere, the agency began publishing 

information from establishments’ 

electronic submissions of Form 300A 

annual summary data in 2020; in 

addition, beginning in 2009, OSHA 

published information from the 

establishments’ submissions of the Form 

300A to the OSHA Data Initiative (ODI), 

which was replaced by the current data 

collection. The information published 

from both data collections included 

establishments’ addresses. Furthermore, 

OSHA is not aware of any instances of 

damage from bad actors as a result of 

data collected through the ITA or the 

ODI and published since 2009, and 

commenters did not provide any 

examples. Nor is OSHA aware of any 

law that classifies business addresses as 

confidential business information or 

personally identifiable information, and 

commenters have provided none. 

Moreover, OSHA notes that the 

Environmental Protection Agency 

already publishes information about the 

location of workplaces with hazardous 

materials and chemicals. For example, 

facilities must inform local communities 

of the presence of hazardous chemicals 

at specific worksites under the 

Emergency Planning and Community 

Right-to-Know Act. Also, EPA maintains 

hazardous materials information in the 

Resource Conservation and Recovery 

Act Information (RCRAInfo), which 

provides a searchable public website for 

the identification of facilities that 

generate, handle, and store hazardous 

materials (see, e.g., the Toxic Release 

Inventory: https://www.epa.gov/enviro/ 

tri-search and the Emergency Planning 

and Community Right-to-Know Act 

(EPCRA) Reporting Requirements: 

https://www.epa.gov/epcra/state-tier-iireporting-requirements-andprocedures). Given the availability of 

such information, OSHA does not 

expect that the minimal amount of 

information regarding hazardous 

materials that it may publish will lead 

to the problems envisioned by this 

commenter. 

Finally, OSHA believes that the 

benefits of publishing this information 

outweigh the purported risks. As 

discussed in greater detail in Section 

III.B.4 of this Summary and 

Explanation, OSHA has identified a 

number of ways in which employees, 

researchers, consultants, and the general 

public may benefit from the publication 

of data from Forms 300 and 301, and if 

those groups do not have access to 

businesses’ addresses, many of those 

benefits will not be realized. For 

example, injury and illness data may 

help job seekers make more informed 

decisions regarding their employment, 

but only if they can accurately identify 

their potential employers. Accordingly, 

OSHA declines to change its 


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longstanding practices regarding 

publication of business locations. 

10. Employer-Vaccine-Mandate-Related 

Concerns 

OSHA also received a comment from 

an interested party who was concerned 

that non-OSHA actors will 

mischaracterize the injury and illness 

data which OSHA intends to publish on 

its websites as ‘‘vaccine-related,’’ 

especially if those injuries and illnesses 

occur in establishments with known 

vaccine mandates. Specifically, the 

National Retail Federation (NRF) 

commented that ‘‘throughout the 

COVID–19 pandemic and continuing 

beyond, various groups have targeted 

employers for implementing vaccine 

mandates in their workplaces. Such 

employers could face unwarranted 

attacks or unfair mischaracterizations of 

their workplace safety records due to 

vaccination policies. Sadly, we have 

already seen anti-vaccine advocates 

manipulate publicized workplace 

injuries and unjustly characterize them 

as vaccine-related. Employers who 

implemented vaccine mandates 

consistent with the Administration’s 

wishes, should not be unfairly targeted 

by those who would eagerly 

mischaracterize the impact of mandates 

and policies’’ (Docket ID 0090). 

OSHA understands this commenter’s 

concern. However, OSHA published 

calendar year 2021 data from OSHA 

Form 300A on its website in April 2022, 

September 2022, and January 2023. The 

information made available in that 

release (like previous releases of the 

data from Form 300A) includes, among 

other things, company names and data 

regarding total number of deaths; total 

numbers of cases with days away from 

work and job transfers or restrictions, 

total number of other restrictions, and 

injury and illness types (e.g., the total 

number of injuries, skin disorders, 

respiratory conditions, poisonings, and 

all other illnesses). If the groups 

referenced by NRF were going to use 

OSHA data to target the establishments 

with vaccine mandates, OSHA believes 

that they already had the opportunity to 

do so using the published 300A data. 

There is no such evidence of OSHA data 

being used for these kinds of attacks in 

the record, and NRF did not point to 

any such evidence. Moreover, the 

publication of case-specific data will 

provide more information about the 

injuries and illnesses occurring at 

establishments, perhaps making it more 

obvious that a mischaracterization of an 

injury or illness as vaccine-related is 

just that: a mischaracterization. 

Finally, if NRF is suggesting that the 

groups referenced in its comment could 

somehow determine that a given 

employer or establishment had a 

vaccine mandate in place by viewing 

the Form 300 or 301 data which OSHA 

plans to make publicly available, OSHA 

thinks such a thing is unlikely. This 

final rule does not include a vaccination 

mandate for employees, nor does it 

require the collection and publication of 

information about vaccine mandates at 

a given establishment. Further, OSHA is 

currently not enforcing 29 CFR 1904’s 

recording requirements in the case of 

worker side effects from COVID–19 

vaccination. Thus, OSHA does not 

expect that any information regarding 

vaccine side effects will appear in 

establishment’s injury and illness data. 

And NRF has not pointed to any other 

data or evidence that would be 

submitted and made public pursuant to 

this rulemaking that could alert the 

groups discussed above of an employer 

or establishment’s vaccine mandate. 

Consequently, for the reasons discussed 

above, OSHA is not persuaded that the 

potential harm referenced by NRF is 

anything other than purely speculative. 

11. Constitutional Issues and OSHA’s 

Authority To Publish Information From 

Forms 300 and 301 

a. The First Amendment 

OSHA received two comments 

relating to the First Amendment of the 

U.S. Constitution. On the one hand, a 

comment from the U.S. Chamber of 

Commerce argues that OSHA’s proposed 

rule would violate the First Amendment 

because it would force employers to 

submit their confidential and 

proprietary information for publication 

on a publicly available government 

online database (Docket ID 0088, 

Attachment 2). In its comment, the 

Chamber noted that the First 

Amendment protects both the right to 

speak and the right to refrain from 

speaking. The Chamber commented: 

‘‘While OSHA’s stated goal of using the 

information it collects from employers 

‘‘to improve workplace safety and 

health,’’ 78 FR 67254, is 

unobjectionable, ‘‘significant 

encroachments on First Amendment 

rights of the sort that compelled 

disclosure imposes cannot be justified 

by a mere showing of some legitimate 

governmental interest.’’ Buckley v. 

Valeo, 424 U.S. 1, 64 (1976) (per 

curiam). Instead, where the government 

seeks to require companies to engage in 

the type of speech proposed here, the 

regulation must meet the higher 

standard of strict scrutiny: Meaning that 

it must be narrowly tailored to promote 

a compelling governmental interest. See 

United States v. Playboy Entm’t Grp., 

Inc., 529 U.S. 803, 819 (2000). Once 

subjected to strict scrutiny, the 

publication provision of this Proposed 

Rule must fail because it is not narrowly 

tailored towards accomplishing a 

compelling government interest. See 

Playboy, 529 U.S. at 819. Under the 

narrow tailoring prong of this analysis, 

the regulation must be necessary 

towards accomplishing the 

government’s interest. See, e.g., 

Republican Party of Minn. v. White, 536 

U.S. 765, 775 (2002) (‘‘[T]o show that 

the [requirement] is narrowly tailored, 

[the government] must demonstrate that 

it does not ‘unnecessarily circumscrib[e] 

protected expression.’’ ’ (fourth 

alteration in original) (quoting Brown v. 

Hartlage, 456 U.S. 45, 54 (1982))).’’ 

(Docket ID 0088, Attachment 2) 

(footnote omitted). 

In support of these arguments, the 

Chamber alleged that OSHA’s proposal 

would undermine (not improve) 

workplace safety and health because it 

‘‘would substantially deplete OSHA’s 

resources.’’ In addition, the Chamber 

asserted that ‘‘even if OSHA were able 

to maintain this database and analyze 

this information in an effective and 

timely manner, there is no evidence that 

publication of this information will 

have any effect on workplace safety’’ 

(Docket ID 0088, Attachment 2). 

On the other hand, Worksafe 

commented that the rule would merely 

compel employers to submit to OSHA 

information that they are already 

required to maintain about workplace 

incidents (Docket ID 0063). It further 

explained that this is a form of 

commercial speech, in which the 

speaker’s constitutional interest in nondisclosure is minimal (Docket ID 0063 

(citing Zauderer v. Office of Disciplinary 

Counsel, 471 U.S. 626, 651 (1985))). 

Additionally, Worksafe argued that 

OSHA could address First Amendment 

concerns by identifying the following in 

the final rule (1) OSHA’s interest in the 

case-specific reports and publication, (2) 

how the rule advances that interest, and 

(3) why the rule is not unduly 

burdensome (Docket ID 0063). 

After considering these comments, 

OSHA disagrees with the Chamber’s 

assertion that this rulemaking violates 

the First Amendment. OSHA notes that, 

contrary to the Chamber’s comment, the 

decision in Buckley v. Valeo only 

applies to campaign contribution 

disclosures and does not hold that other 

types of disclosure rules are subject to 

the strict scrutiny standard (see 424 U.S. 

1, 64 (reasoning that campaign 

contribution disclosures ‘‘can seriously 

infringe on privacy of association and 

belief guaranteed by the First 

Amendment’’)). Later cases also clarify 


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that disclosure requirements only trigger 

strict scrutiny ‘‘in the electoral context’’ 

(see John Doe No. 1 v. Reed, 561 U.S. 

186, 196 (2010)). 

Further, OSHA agrees with WorkSafe 

that Zauderer is applicable to this 

rulemaking. In Zauderer, the Supreme 

Court upheld Ohio State rules requiring 

disclosures in attorney advertising 

relating to client liability for court costs 

(471 U.S. at 653). The Court declined to 

apply the more rigorous strict scrutiny 

standard, because the government was 

not attempting to ‘‘prescribe what shall 

be orthodox in politics, nationalism, 

religion, or other matters of opinion or 

force citizens to confess by word or act 

their faith therein’’ (471 U.S. at 651). 

Because it concluded the disclosure at 

issue would convey ‘‘purely factual and 

uncontroversial information,’’ the rule 

only needed to be ‘‘reasonably related to 

the State’s interest in preventing 

deception of consumers’’ (id.). More 

recently, in American Meat Institute v. 

U.S. Dept. of Agriculture, the U.S. Court 

of Appeals for the D.C. Circuit held that 

the Zauderer case’s ‘‘reasonably related’’ 

test is not limited to rules aimed at 

preventing consumer deception, and 

applies to other disclosure rules dealing 

with ‘‘purely factual and 

uncontroversial information’’ (760 F.3d 

18, 22 (D.C. Cir. 2014) (en banc) (finding 

that the speakers’ interest in nondisclosure of such information is 

‘‘minimal’’); see also NY State 

Restaurant Ass’n v. NYC Bd. Of Health, 

556 F.3d 114, 133 (2d Cir. 2009) 

(accord), Pharmaceutical Care Mgmt. 

Ass’n v. Rowe, 429 F.3d 294, 310 (1st 

Cir. 2005) (accord), cert denied, 547 U.S. 

1179 (2006)). 

This rule only requires disclosure of 

purely factual and uncontroversial 

workplace injury and illness records 

that are already kept by employers. The 

rule does not violate the First 

Amendment because disclosure of 

workplace injury and illness records is 

reasonably related to the government’s 

interest in assuring ‘‘so far as possible 

every working man and woman in the 

Nation safe and healthful working 

conditions’’ (29 U.S.C. 651(b)). Further, 

as discussed in more detail in Section 

III.B.4 of this Summary and 

Explanation, OSHA has determined that 

the collection and publication of this 

information will have a positive effect 

on worker safety and health. In 

addition, as discussed in Section 

III.B.14 of this Summary and 

Explanation, OSHA does not believe 

that its decision to devote a portion of 

its resources to collecting the workplace 

injury and illness data covered by this 

final rule will negatively impact worker 

safety and health. On the contrary, 

OSHA expects that the data submitted 

in response to the requirements put into 

place by this final rule will allow OSHA 

to allocate its resources in a more 

informed fashion. The remainder of the 

Chamber’s comment addresses the 

requirement that the government 

‘‘narrowly tailor’’ regulations that deal 

with essential rights, which, as 

explained above, does not apply to an 

employer’s minimal interest in nondisclosure of purely factual and 

uncontroversial information. 

b. The Fourth Amendment 

The Plastics Industry Association 

(Docket ID 0086), as well as one private 

citizen commenter (Docket ID 0023), 

generally assert that the collection and 

publication of site- and case-specific 

data would violate employers’ Fourth 

Amendment rights. However, as 

discussed above in Section II, Legal 

Authority, the Fourth Amendment 

protects against government searches 

and seizures of private property only 

when a person has a legitimate 

expectation of privacy related to the 

thing being searched or seized. There is 

little or no expectation of privacy for 

records of occupational injuries and 

illnesses kept in compliance with OSHA 

regulations, which employers are legally 

required to disclose to OSHA and others 

on request. Moreover, even if there were 

an expectation of privacy in these 

records, the Fourth Amendment 

prohibits only unreasonable incursions 

by the government. The test for 

reasonableness requires balancing the 

need to search against the invasion that 

the search entails (see Camara v. Mun. 

Ct. of City & Cnty. of San Francisco, 387 

U.S. 523, 536–537 (1967)). The 

information submission requirement in 

this final rule is reasonable. As 

explained in Section II, Legal Authority, 

the submission requirement serves a 

substantial government interest in 

protecting the health and safety of 

workers, has a strong statutory basis, 

and uses reasonable, objective criteria 

for determining which employers must 

report information to OSHA. In 

addition, again, as noted above and 

below, the submission requirement 

results in little to no invasion of 

employer or establishment privacy 

given that employers must already 

retain these forms and provide them to 

multiple individuals and entities upon 

request. 

OSHA also received a comment from 

the U.S. Chamber of Commerce (the 

Chamber) asserting that OSHA’s use of 

injury and illness data submitted under 

the proposed rule for enforcement 

purposes would violate employers’ 

Fourth Amendment rights. The 

Chamber argued that OSHA’s use of the 

information collected for enforcement 

purposes will fail to constitute a 

‘‘neutral administrative scheme’’ and 

will thus violate the Supreme Court’s 

holding in Marshall v. Barlow’s Inc., 436 

U.S. 307 (1978) (Docket ID 0088, 

Attachment 2). Additionally, the 

Chamber maintained that the raw data 

to be collected under the proposed rule 

would fail to provide any defensible 

neutral predicate for enforcement 

decisions: ‘‘Under this Proposed Rule, 

OSHA will be able to target any 

employer that submits a reportable 

injury or illness for any reason the 

agency chooses, or for no reason at all, 

under this unlimited discretion it has 

sought to grant itself to ‘‘identify 

workplaces where workers are at great 

risk.’’ ’’ (Docket ID 0088, Attachment 2 

(quoting 78 FR 67256)). 

In response, OSHA notes that 

Barlow’s concerned the question of 

whether OSHA must have a warrant to 

enter and inspect the nonpublic areas of 

a worksite without the employer’s 

consent. Section 1904.41 of this final 

rule involves electronic submission of 

injury and illness recordkeeping data; 

no entry of premises or compliance 

officer decision-making is involved. 

Thus, the Barlow’s decision provides 

very little support for the Chamber’s 

sweeping Fourth Amendment objections 

(see Donovan v. Lone Steer, Inc., 464 

U.S. 408, 414 (1984) (reasonableness of 

a subpoena is not to be determined on 

the basis of physical entry law, because 

subpoena requests for information 

involve no entry into nonpublic areas)). 

Moreover, the final rule is limited in 

scope and leaves OSHA with limited 

discretion. The recordkeeping 

information required to be submitted is 

highly relevant to accomplishing 

OSHA’s statutory mission. The 

submission of recordkeeping data is 

accomplished through remote electronic 

transmittal, without any intrusion of the 

employer’s premises by OSHA, and is 

not unduly burdensome. Also, as noted 

above, all of the injury and illness 

information establishments will be 

required to submit under this final rule 

will be taken from records employers 

are already required to create, maintain, 

post, and provide to employees, 

employee representatives, and 

government officials upon request, 

which means the employer has a 

reduced expectation of privacy in the 

information. 

With respect to the issue of 

enforcement, OSHA disagrees with the 

Chamber’s Fourth Amendment 

objection that the agency will target 

employers ‘‘for any reason’’ simply 

because they submit injury and illness 


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data. Instead, OSHA plans to continue 

the practice of using a neutral-based 

scheme for identifying employers and 

industries for greater enforcement 

attention. More specifically, the agency 

will use the data submitted by 

employers under this final rule in 

essentially the same manner in which 

OSHA has used data from the ODI and 

the current collection of Form 300A 

data in all of its iterations of the SiteSpecific Targeting (SST) program. The 

SST includes for selection 

establishments that meet predetermined injury and illness rate 

thresholds. All establishments at or 

above the threshold are eligible for 

inspection. Establishments in this pool 

are then randomly selected for 

inspection. In the future, OSHA plans to 

analyze the recordkeeping data 

submitted by employers to identify 

injury and illness trends, establish 

neutral criteria to determine which 

employers may be inspected, and then 

make appropriate decisions regarding 

enforcement efforts based on those 

criteria. OSHA also notes that the 

agency currently uses establishmentspecific fatality, injury, and illness 

reports submitted by employers under 

§ 1904.39 to target enforcement and 

compliance assistance resources. As 

with the SST and National Emphasis 

programs, a neutral-based scheme is 

used to identify which establishments 

are inspected and which fall under a 

compliance assistance program. 

Accordingly, OSHA’s using injury and 

illness recordkeeping data to target 

employers for inspection will not be 

arbitrary or unconstitutional under the 

Fourth Amendment. 

c. The Fifth Amendment 

One commenter raised concerns that 

the proposed rule would violate the 

Fifth Amendment’s requirement that the 

Federal Government ensure equal 

protection. Specifically, Hunter 

Cisiewski commented that the proposal 

to remove the requirement from former 

§ 1904.41(a)(1) for certain 

establishments with 250 or more 

employees to electronically submit 

Form 300A data, ‘‘would deprive 

workers in the affected industries of 

holding their employers accountable to 

produce workplace related injury data 

to OSHA while simultaneously 

providing this protection to workers in 

similar industries’’ and ‘‘presents no 

reason for why employees in these 

affected industries should no longer 

have the guarantee that their employers 

will report workplace injury and illness 

data to the governing agency’’ (Docket 

ID 0024). 

As explained in Section III.A of this 

Summary and Explanation, OSHA has 

decided not to make the proposed 

change of restricting the universe of 

large establishments that are required to 

submit data from Form 300A. Instead, 

the agency will maintain the 

requirement for all establishments with 

250 or more employees that are covered 

by part 1904 to submit the information 

from their OSHA Form 300A to OSHA, 

or its designee, once a year. Therefore, 

although OSHA disagrees with this 

commenter’s assertion that the proposal 

would have violated the Fifth 

Amendment’s guarantee of equal 

protection had it been finalized, the 

agency finds that this particular 

comment is moot. 

d. OSHA’s Authority To Publish 

Information Submitted Under This Rule 

Several commenters asserted that 

OSHA lacks the statutory authority 

under the OSH Act to publish a 

database that makes submitted injury 

and illness recordkeeping data available 

to the general public (Docket IDs 0050, 

0059, 0071, 0086, 0088, 0090). These 

commenters acknowledged that 

Sections 8 and 24 of the OSH Act 

provide the Secretary of Labor with 

authority to issue regulations requiring 

employers to maintain accurate records 

of work-related injuries and illnesses. 

However, according to these 

commenters, nothing in the OSH Act 

authorizes OSHA to publish 

establishment-specific injury and illness 

records on a public website. The 

National Retail Federation (NRF) stated: 

‘‘NRF believes the NPRM itself is 

fundamentally flawed in that the agency 

does not have the statutory authority to 

publish the data as proposed’’ (Docket 

ID 0090). The National Propane Gas 

Association commented: ‘‘Lastly, the 

agency radically interprets its authority 

to justify the publicly accessible 

website. In the NPRM, OSHA argues 

that its general purpose justifies any 

rulemaking that presents the potential to 

improve safety. The general purpose of 

the agency to improve workplace safety 

is not equivalent to a foregone 

conclusion that any proposal by the 

agency will result in improvements to 

workplace safety. The NPRM fails to 

present information to demonstrate that 

public shaming is an effective means to 

improve workplace safety.’’ (Docket ID 

0050). 

Similarly, NAHB pointed to other 

statutes, such as the Federal Coal Mine 

Safety and Health Act of 1969, Public 

Law 91–173 (December 30, 1969), which 

it maintains provided more express 

authority to publish records than the 

OSH Act (Docket ID 0059). NAHB 

further argues that the language in the 

OSH Act only authorizes OSHA to 

publish analysis, not ‘‘raw data’’ (Docket 

ID 0059). 

As OSHA stated in the 2016 final 

recordkeeping rule, the OSH Act 

provides ample statutory authority for 

OSHA to issue this final rule and 

publish the submitted data. As 

explained in Section II, Legal Authority, 

the following provisions of the OSH Act 

give the Secretary of Labor broad 

authority to issue regulations that 

address the recording and reporting of 

occupational injuries and illnesses. 

Section 2(b)(12) of the Act states that 

one of the purposes of the OSH Act is 

to ensure safe and healthy working 

conditions through appropriate 

reporting procedures designed to further 

the objectives of the OSH Act and 

accurately characterize the nature of 

workplace safety and health hazards (29 

U.S.C. 651(b)(12)). 

Section 8(c)(1) requires employers to 

create and retain the records that OSHA 

has specified are necessary and 

appropriate either for the Act’s 

enforcement or to develop information 

related to the underlying reasons for and 

prevention of work-related illnesses and 

accidents (29 U.S.C. 657(c)(1)). Section 

8(c)(1) also requires employers to make 

such records available to the Secretary. 

The authorization to the Secretary to 

prescribe such recordkeeping 

regulations as he considers ‘‘necessary 

or appropriate’’ emphasizes the breadth 

of the Secretary’s discretion in 

implementing the OSH Act. Section 

8(c)(2) further tasks the Secretary with 

promulgating regulations which require 

employers to keep accurate records of, 

and to make periodic reports on, 

occupational illnesses, injuries, and 

deaths (29 U.S.C. 657(c)(2)). 

The grant of authority in Section 

8(g)(1) is particularly pertinent to 

OSHA’s stated intention to publish the 

collected information online. Section 

8(g)(1) authorizes the Secretary to 

compile, analyze, and publish, either in 

summary or detailed form, all reports or 

information the Secretary obtains under 

section 8 of the OSH Act. Section 8(g)(2) 

of the Act generally empowers the 

Secretary to promulgate any rules and 

regulations that the Secretary 

determines are necessary to perform the 

Secretary’s duties under the OSH Act 

(29 U.S.C. 657(g)(2)). 

Section 24 contains a related grant of 

regulatory authority. Section 24(a) 

directs the Secretary to create and 

maintain an effective program of 

collection, compilation and analysis of 

work-related safety and health statistics. 

In addition, Section 24(a) states that the 

Secretary shall compile accurate 


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statistics on occupational illnesses and 

injuries (29 U.S.C. 673(a)). Finally, 

Section 24(e) provides that, based on the 

records the employers create and retain 

in accordance with Section 8(c) of the 

OSH Act, employers must file, with the 

Secretary, the reports prescribed by 

regulation as necessary to carry out the 

Secretary’s functions under the OSH Act 

(29 U.S.C. 673(e)). Given the numerous 

statutory provisions authorizing and 

requiring OSHA to collect information 

about occupational safety and health, 

along with the provision (Section 

8(g)(1)) specifically addressing the 

publication of such information, it is 

clear that Congress determined that both 

collection and publication of this 

information were critical to OSHA’s 

mission of protecting the health and 

safety of the nation’s workers. 

In addition, as described in Section 

III.B of this Summary and Explanation, 

OSHA has made the determination that 

electronic submission and publication 

of injury and illness recordkeeping data 

are ‘‘necessary and appropriate’’ for the 

enforcement of the OSH Act and for 

gathering and sharing information 

regarding the causes or prevention of 

occupational accidents or illnesses. 

Where an agency is authorized to 

prescribe regulations ‘‘necessary’’ to 

implement a statutory provision or 

purpose, a regulation promulgated 

under such authority is valid ‘‘so long 

it is reasonably related to the enabling 

legislation’’ (Morning v. Family 

Publication Service, Inc., 441 U.S. 356, 

359 (1973)). 

OSHA further notes that, contrary to 

comments made by some commenters, 

and as explained above, the final rule 

will not result in the publication of raw 

injury and illness recordkeeping data or 

the release of records containing 

personally identifiable information or 

confidential commercial and/or 

proprietary information. The release and 

publication of submitted injury and 

illness recordkeeping data will be 

conducted in accordance with 

applicable Federal law (see discussion 

above in this preamble). The purpose of 

increasing access to injury and illness 

report data is not to conduct public 

shaming, but rather to allow employers 

to compare their safety records to other 

employers, enable employees to gain 

greater awareness of the hazards and 

safety records in their workplaces 

without fear of retribution, and pursue 

the numerous other safety and healthrelated purposes discussed in this 

rulemaking. 

Many commenters stated that 

collection and publication of detailed 

injury and illness data will support the 

OSH Act’s goals of reducing 

occupational accidents and illnesses 

through greater understanding, 

prevention, and effective enforcement 

(e.g., Docket IDs 0010, 0011, 0012, 0024, 

0029, 0030, 0031, 0035, Attachment 2, 

0045, Attachment 1, 0048, 0049, 

Attachment 1). The Seventeen AGs 

summarized the ways that publication 

of data will enhance the effectiveness of 

OSHA’s efforts to achieve the purposes 

of the OSH Act: ‘‘Requiring the 

submission of certain data from Forms 

300 and 301, in addition to the 

summary Form 300A, will provide the 

public with injury-specific data that is 

critical for helping workers, employers, 

regulators, researchers, and consumers 

understand and prevent occupational 

injuries and illnesses. . . . These [casespecific] fields paint a far more detailed 

picture of the nature and severity of 

workplace safety incidents and risks. 

The proposed rule recognizes the 

importance of this more detailed 

information, which will help OSHA and 

States better target their workplace 

safety and enforcement programs; 

encourage employers to abate workplace 

hazards; empower workers to identify 

risks and demand improvements; and 

provide information to researchers who 

work on occupational safety and 

health.’’ (Docket ID 0045). 

OSHA agrees. In sum, publication of 

the data required to be submitted under 

this final rule is clearly within the broad 

authority granted the agency by the OSH 

Act. 

OSHA also received comments 

arguing that the online posting of 

covered employers’ injury and illness 

recordkeeping data violates the 

Confidential Information Protection and 

Statistical Efficiency Act of 2002 

(CIPSEA) (Pub. L. 107–347, December 

17, 2002) (Docket ID 0088, Attachment 

2). For example, the Chamber of 

Commerce noted that CIPSEA prohibits 

BLS from releasing establishmentspecific injury and illness data to the 

general public or to OSHA, and that 

OSHA has not adequately addressed 

how the release of part 1904 information 

under this rulemaking is consistent with 

the Congressional mandate expressed in 

the law. 

In response, OSHA notes that CIPSEA 

provides strong confidentiality 

protections for statistical information 

collections that are conducted or 

sponsored by Federal agencies. The law 

prevents the disclosure of data or 

information in identifiable form if the 

information is acquired by an agency 

under a pledge of confidentiality for 

exclusively statistical purposes (see 

Section 512(b)(1)). BLS, whose mission 

is to collect, process, analyze, and 

disseminate statistical information, uses 

a pledge of confidentiality when 

requesting occupational injury and 

illness information from respondents 

under the BLS Survey. 

The provisions of CIPSEA apply when 

a Federal agency both pledges to protect 

the confidentiality of the information it 

acquires and uses the information only 

for statistical purposes. Conversely, the 

provisions of CIPSEA do not apply if 

information is collected or used by a 

Federal agency for any non-statistical 

purpose. As noted elsewhere in this 

document, the information collected 

and published by OSHA in the final rule 

will be used for several non-statistical 

purposes, including for the targeting of 

OSHA enforcement activities. Therefore, 

the CIPSEA confidentiality provisions 

are not applicable to the final rule. 

12. Administrative Issues 

a. Public Hearing 

The Chamber of Commerce 

recommended that OSHA hold formal 

public hearings throughout the United 

States for this rulemaking (Docket ID 

0088, Attachment 2). The Chamber felt 

that, given both the burden on 

employers and the far-reaching 

implications of publishing confidential 

and proprietary information, formal 

public hearings were necessary to give 

people outside Washington, DC the 

opportunity to participate in the 

rulemaking process. Additionally, the 

National Propane Gas Association 

commented that OSHA should hold 

‘‘public listening sessions to solicit 

more concepts from employers, 

employees, and other stakeholders’’ 

(Docket ID 0050). 

OSHA considered these requests and 

is not persuaded that hearings or public 

listening sessions are required or 

necessary. First, as to whether a hearing 

is required, because this rulemaking 

involves a regulation rather than a 

standard, it is governed by the notice 

and comment requirements in the APA 

(5 U.S.C. 553) rather than Section 6 of 

the OSH Act (29 U.S.C. 655) and 29 CFR 

1911.11. Section 6 of the OSH Act and 

29 CFR 1911.11 only apply to 

promulgating, modifying, or revoking 

occupational safety and health 

standards. Therefore, the OSH Act’s 

requirement to hold an informal public 

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

proposed rule, when requested, does not 

apply to this rulemaking. 

Similarly, Section 553 of the APA 

does not require a public hearing. 

Instead, it states that the agency must 

‘‘give interested persons an opportunity 

to participate in the rulemaking through 

submission of written data, views, or 

arguments with or without opportunity 


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47330 Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations 

for oral presentation’’ (5 U.S.C. 553(c)). 

In the NPRM, OSHA invited the public 

to submit written comments on all 

aspects of the proposal and received 87 

comments in response (see 87 FR 

18555). OSHA believes that interested 

parties had a full and fair opportunity 

to participate in the rulemaking and 

comment on the proposed rule through 

the submission of written comments. 

This belief is supported by the fact that 

OSHA extended the comment period for 

an additional thirty days based on 

requests from the public (87 FR 31793). 

With that extension, interested parties 

were afforded 92 days to review and 

comment on OSHA’s proposal. OSHA 

did not receive any requests to further 

extend the comment period. 

Second, as to the necessity of the 

hearing to provide interested parties 

outside of Washington, DC an 

opportunity to participate in the 

rulemaking process, or holding public 

listening sessions, OSHA does not 

believe it needs to do so for the same 

reasons it does not find that the APA 

requires a hearing. Specifically, the 

opportunity for notice and comment 

afforded by the NPRM was sufficient to 

both allow participation by interested 

parties and fully develop the record. 

b. The Advisory Committee on 

Construction Safety and Health 

(ACCSH) 

The National Association of 

Homebuilders (NAHB) commented that 

OSHA must seek input from the 

Advisory Committee on Construction 

Safety and Health (ACCSH) during this 

rulemaking ‘‘to better understand the 

impacts and consequences of its 

proposal’’ (Docket ID 0059). 

As pointed out by NAHB in their 

comments, ACCSH is a continuing 

advisory body established under Section 

3704(d) of the Contract Work Hours and 

Safety Standards Act (40 U.S.C. 3701 et 

seq., commonly known as the 

Construction Safety Act), to advise the 

Secretary of Labor and Assistant 

Secretary of Labor for Occupational 

Safety and Health in the formulation of 

construction safety and health standards 

and policy matters affecting federally 

financed or assisted construction. In 

addition, OSHA’s regulation at 29 CFR 

1912.3 provides that OSHA must 

consult with ACCSH regarding the 

setting of construction standards under 

the OSH Act. 

OSHA notes that both the 

Construction Safety Act (40 U.S.C. 

3704(a)) and 29 CFR 1912.3 only require 

OSHA to consult with ACCSH regarding 

the formulation of new construction 

‘‘standards.’’ As discussed above, the 

requirements in 29 CFR part 1904 are 

regulations, not standards. Therefore, as 

NAHB itself acknowledged in its 

comment (‘‘the statute and the agency’s 

own regulations only require OSHA to 

consult with the ACCSH regarding the 

setting of construction standards, and 

not regulations’’ (Docket ID 0059)), 

OSHA was not required to consult with 

ACCSH in formulating this final 

regulation. In addition, as noted in the 

NPRM, OSHA consulted and received 

advice from the National Advisory 

Council on Occupational Safety and 

Health (NACOSH) prior to issuing the 

proposed rule. NACOSH indicated its 

support for OSHA’s efforts, in 

consultation with NIOSH, to modernize 

the system for collection of injury and 

illness data to assure that the data are 

timely, complete, and accurate, as well 

as accessible and useful to employees, 

employers, government agencies, and 

members of the public. 

c. Reasonable Alternatives Considered 

Associated Builders and Contractors 

commented that under the APA, OSHA 

is required ‘‘to consider reasonable 

alternatives to its proposed reversal of 

the current reporting requirements,’’ 

and asserts that ‘‘the failure to do so will 

likely lead to nullification upon judicial 

review’’ (Docket ID 0071). In response, 

OSHA notes that the Supreme Court has 

held that an agency is not required to 

‘‘consider all policy alternatives in 

reaching [its] decision,’’ but when an 

agency rescinds a prior policy, it must 

consider the alternatives that are 

‘‘within the ambit of the existing 

[policy]’’ (Dep’t of Homeland Security v. 

Regents of the Univ. of Cal., 140 S. Ct. 

1891, 1913 (2020) (alterations in 

original)). 

The commenter does not point to a 

particular policy alternative that OSHA 

failed to consider, nor is OSHA required 

to consider every possible policy 

alternative. To the extent the comment 

suggests that OSHA should have 

considered, as an alternative, 

maintaining the requirements of the 

2019 rule, OSHA has complied with this 

requirement. As explained in the 

NPRM, OSHA proposed requiring 

establishments with 100 or more 

employees at any time during the 

previous calendar year, and in an 

industry listed in proposed appendix B 

to subpart E, to electronically submit 

certain information from OSHA Forms 

300, 301, and 300A (87 FR 18537). This 

was a change from the 2019 final rule, 

which had removed the requirement for 

the annual electronic submission of 300 

and 301 data to OSHA because of both 

the risk of disclosure of sensitive worker 

information and resource concerns. In 

the NPRM, OSHA explained that it had 

preliminarily determined that the 

reasons given in the preamble to the 

2019 rule for the removal of the 300 and 

301 data submission requirement were 

no longer compelling. The agency 

discussed in detail the ways in which 

the benefits of collecting data from the 

300 and 301 forms outweighed the 

slight risk to employee privacy and 

explained how technological 

improvements have mitigated resource 

concerns (87 FR 18537–18542). The 

NPRM also explained the ways in which 

publication of 300 and 301 data may 

benefit interested parties and improve 

worker safety and health (87 FR 18542– 

18543). Furthermore, in Section III.B of 

this Summary and Explanation, OSHA 

has discussed these issues in further 

detail and responded to a number of 

comments opposing the new reporting 

requirement. By analyzing these issues 

and responding to comments, OSHA has 

weighed the proposal against 

maintaining the status quo and provided 

a well-reasoned explanation for its 

decision, which illustrates OSHA’s 

consideration of alternatives to its 

proposal and fulfills its obligations 

under the APA. 

OSHA also considered alternatives to 

several aspects of this final rule. In the 

preliminary economic analysis of the 

NPRM, the agency explained that 

appendix A is based on 2011–2013 

injury rates from the SOII, and that 

OSHA was not proposing to modify 

appendix A because it took several years 

for the regulated community to 

understand which industries were 

required to submit information and 

which were not (87 FR 18552). 

However, OSHA asked for comment on 

a possible alternative: updating 

appendix A to reflect 2017–2019 injury 

rates, which would result in the 

addition of one industry and the 

removal of 13 (87 FR 18552–53). 

Additionally, OSHA explained that the 

2016 final rule did not include a 

requirement to regularly update the list 

of designated industries in appendix A 

because it believed that moving 

industries in and out of the appendix 

would be confusing (87 FR 18553). The 

agency requested comment on another 

possible alternative: regularly updating 

the list of designated industries in 

proposed appendix B (87 FR 18553). In 

Section III.A of this Summary and 

Explanation, OSHA has responded to 

the comments received in response to 

the first alternative and provided 

explanations for its decision not to 

adopt the alternative. Likewise, in 

Section III.B of this Summary and 

Explanation, OSHA responded to 

comments received in response to the 


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18The Chamber of Commerce objected to the 

preliminary finding that this rule is not an 

economically significant regulatory action under 

Executive Order 12866 (Ex. 88), arguing that the 

first-year costs of compliance require such a 

finding. This assertion is based on the Chamber of 

Commerce’s own estimates of the costs of 

compliance with this rule, which are significantly 

higher than OSHA’s. The Chamber estimates firstyear costs of $130 million, whereas OSHA’s 

estimated annual costs in the FEA to affected 

employers are just over $7 million. The Chamber of 

Commerce’s more specific comments regarding 

costs are discussed throughout this section. 

second alternative, and its decision not 

to adopt that alternative. 

OSHA also proposed to change the 

requirement in § 1904.41(a)(1) that 

required establishments with 250 or 

more employees, in all industries 

routinely required to keep OSHA injury 

and illness records, to electronically 

submit information from their 300A to 

OSHA once a year. The proposal would 

have required this submission only for 

establishments in industries listed in 

appendix A, thus reducing the number 

of establishments required to 

electronically submit 300A data (see 87 

FR 18536). The agency received many 

comments on the proposal, which 

overwhelmingly opposed it, and urged 

OSHA to retain the existing requirement 

for establishments with 250 or more 

employees that are normally required to 

report under part 1904 to submit data 

from their 300As. In Section III.A of this 

Summary and Explanation, these 

comments are discussed in greater 

detail, as is OSHA’s explanation for 

rejecting the proposed change and 

retaining current reporting requirements 

for Form 300A data. 

OSHA’s presentation of proposed 

alternatives, analysis of comments, and 

ultimate decisions to reject those 

proposals illustrates OSHA’s 

consideration of alternatives within the 

ambit of its current policy. For these 

reasons, OSHA has met its obligations 

under the APA to consider alternatives 

to its proposal. 

IV. Final Economic Analysis and 

Regulatory Flexibility Certification 

A. Introduction 

As described above, OSHA is 

amending its recordkeeping regulations 

in 29 CFR part 1904 to revise the 

requirements for the electronic 

submission of information from 

employers’ injury and illness 

recordkeeping forms. Specifically, 

OSHA is amending its recordkeeping 

regulation at § 1904.41 to require 

establishments with 100 or more 

employees in certain designated 

industries (i.e., those on appendix B in 

subpart E of part 1904) to electronically 

submit information from their OSHA 

Forms 300 and 301 to OSHA once a 

year. This is the only new requirement 

of the final rule, and therefore the only 

one that imposes new costs on 

employers. The other main provisions 

in the final rule, which involve 

submission of data from the Form 300A 

annual summary, represent nonsubstantive changes to requirements 

that already exist. OSHA intends to post 

the data from the annual electronic 

submissions on a public website after 

identifying and removing information 

that could reasonably be expected to 

identify individuals directly, such as 

individuals’ names and contact 

information. 

Executive Orders 12866 and 13563 

direct agencies to assess the costs and 

benefits of the intended regulation and, 

if regulation is necessary, to select 

regulatory approaches that maximize 

net benefits (including potential 

economic, environmental, and public 

health and safety effects; distributive 

impacts; and equity). Executive Order 

13563 emphasizes the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. This rule is 

not an economically significant 

regulatory action under Section 3(f) of 

Executive Order 12866 and has been 

reviewed by the Office of Information 

and Regulatory Affairs in the Office of 

Management and Budget, as required by 

executive order. 

As explained in this analysis, OSHA 

estimates that this rule will have 

economic costs of $7.7 million per year. 

These costs include $7.1 million per 

year to the private sector to become 

familiar with the rule’s requirements, 

update software, and submit forms 

electronically to OSHA, and $0.6 

million per year to the government for 

processing the data, updating and 

maintaining software, and providing 

additional IT support. OSHA estimates 

average costs of $136 per year for 

affected establishments (those with 100 

or more employees in NAICS industries 

listed on appendix B of subpart E of part 

1904), annualized over 10 years with a 

discount rate of seven percent. 

The final rule is not a significant 

regulatory action under Executive Order 

12866 Section 3(f)(1), and it is not a 

‘‘major rule’’ under the Congressional 

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

agency estimates that the rulemaking 

imposes far less than $100 million in 

annual economic costs. In addition, it 

does not meet any of the other criteria 

specified by the Congressional Review 

Act for an economically significant 

regulatory action or major rule.18 This 

Final Economic Analysis (FEA) 

addresses the costs, benefits, and 

economic impacts of the rule. 

B. Changes From the Preliminary 

Economic Analysis (PEA) (Reflecting 

Changes in the Final Rule From the 

Proposal) 

The final rule makes limited 

substantive changes to employer 

obligations when compared to the 

requirements that were costed as part of 

the proposed rule. These changes, as 

described in more detail below, are to 

the requirement for establishments with 

250 or more employees to submit data 

from their 300A annual summaries to 

OSHA and to the industries included on 

appendix B to subpart E of part 1904. 

More generally, the final rule does not 

add to or change any employer’s 

obligation to complete, retain, and 

certify injury and illness records under 

OSHA’s regulations at 29 CFR part 1904. 

The final rule also does not add to or 

change the recording criteria or 

definitions for these records. Nor does 

the final rule change the requirement to 

electronically submit information from 

the OSHA 300A Annual Summary. As 

discussed in Section III.A of the 

Summary and Explanation, the final 

rule does not remove the reporting 

requirement from any establishment 

that is currently required to 

electronically report Form 300A 

information to OSHA nor impose a new 

reporting requirement on any 

establishment that is not currently 

required to electronically report Form 

300A information to OSHA. 

1. Continued Submission of OSHA 

300A Annual Summaries by 

Establishments With 250 or More 

Employees 

In the NPRM, OSHA proposed 

removing the requirement for 

establishments with 250 or more 

employees in select industries to submit 

information from their OSHA 300A 

annual summary forms electronically. 

To reflect this proposed change, OSHA 

estimated in its PEA that the reduction 

in the number of establishments 

required to submit this information 

would result in a total annual cost 

savings of $27,077 (87 FR 18549). For 

this final rule, as explained in Section 

III.A of the Summary and Explanation, 

OSHA has decided not to make the 

proposed change and to retain the 

existing requirement. Therefore, these 

cost savings have been removed from 

the cost analysis. 

2. Additional Appendix B Industries 

In the NPRM, the agency proposed a 

selected list of industries, in appendix 

B, to designate which establishments 


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47332 Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations 

with 100 or more employees would 

have to submit information from their 

OSHA Form 300 Log and Form 301 

Incident Reports electronically. The 

industries on proposed appendix B were 

based on the average total case rate 

(TCR) of injuries and illnesses in each 

industry. Because the requirement for 

establishments in industries on 

appendix B to submit data from Forms 

300 and 301 is a new requirement, 

OSHA analyzed the costs and impacts to 

establishments in those industries in the 

PEA. For the final rule, OSHA has 

decided to add additional industries to 

the list of industries that were on 

appendix B in the proposed rule; these 

additional industries are listed in Table 

1, below. As explained in Section III.B.1 

of the Summary and Explanation, OSHA 

has decided to add industries from 

appendix A that meet the criteria of 

having either a high DART rate (defined 

as 1.5 times the private industry DART 

rate) or a high fatality rate (defined as 

1.5 times the private industry fatality 

rate). Employers that have 100 or more 

employees and are in an industry listed 

on final appendix B must submit 

information from their Forms 300 and 

301 to OSHA, electronically, on an 

annual basis. 

TABLE 1—INDUSTRIES ADDED TO APPENDIX B 

2017 NAICS 4-digit Industry High DART 

rate criteria 

High fatality 

rate criteria 

1133 .......................... Logging ............................................................................................................................ No .................. Yes. 

1142 .......................... Hunting and Trapping ...................................................................................................... Yes ................. No. 

3379 .......................... Other Furniture Related Product Manufacturing ............................................................. Yes ................. No. 

4239 .......................... Miscellaneous Durable Goods Merchant Wholesalers ................................................... No .................. Yes. 

4853 .......................... Taxi and Limousine Service ............................................................................................ No .................. Yes. 

4889 .......................... Other Support Activities for Transportation ..................................................................... Yes ................. No. 

With the additions in Table 1, above, 

the final appendix B to subpart E is as 

follows: 

NAICS Industry 

1111 .................. Oilseed and Grain Farming. 

1112 .................. Vegetable and Melon Farming. 

1113 .................. Fruit and Tree Nut Farming. 

1114 .................. Greenhouse, Nursery, and Floriculture Production. 

1119 .................. Other Crop Farming. 

1121 .................. Cattle Ranching and Farming. 

1122 .................. Hog and Pig Farming. 

1123 .................. Poultry and Egg Production. 

1129 .................. Other Animal Production. 

1133 .................. Logging. 

1141 .................. Fishing. 

1142 .................. Hunting and Trapping. 

1151 .................. Support Activities for Crop Production. 

1152 .................. Support Activities for Animal Production. 

1153 .................. Support Activities for Forestry. 

2213 .................. Water, Sewage and Other Systems. 

2381 .................. Foundation, Structure, and Building Exterior Contractors. 

3111 .................. Animal Food Manufacturing. 

3113 .................. Sugar and Confectionery Product Manufacturing. 

3114 .................. Fruit and Vegetable Preserving and Specialty Food Manufacturing. 

3115 .................. Dairy Product Manufacturing. 

3116 .................. Animal Slaughtering and Processing. 

3117 .................. Seafood Product Preparation and Packaging. 

3118 .................. Bakeries and Tortilla Manufacturing. 

3119 .................. Other Food Manufacturing. 

3121 .................. Beverage Manufacturing. 

3161 .................. Leather and Hide Tanning and Finishing. 

3162 .................. Footwear Manufacturing. 

3211 .................. Sawmills and Wood Preservation. 

3212 .................. Veneer, Plywood, and Engineered Wood Product Manufacturing. 

3219 .................. Other Wood Product Manufacturing. 

3261 .................. Plastics Product Manufacturing. 

3262 .................. Rubber Product Manufacturing. 

3271 .................. Clay Product and Refractory Manufacturing. 

3272 .................. Glass and Glass Product Manufacturing. 

3273 .................. Cement and Concrete Product Manufacturing. 

3279 .................. Other Nonmetallic Mineral Product Manufacturing. 

3312 .................. Steel Product Manufacturing from Purchased Steel. 

3314 .................. Nonferrous Metal (except Aluminum) Production and Processing. 

3315 .................. Foundries. 

3321 .................. Forging and Stamping. 

3323 .................. Architectural and Structural Metals Manufacturing. 

3324 .................. Boiler, Tank, and Shipping Container Manufacturing. 


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Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations 47333 

NAICS Industry 

3325 .................. Hardware Manufacturing. 

3326 .................. Spring and Wire Product Manufacturing. 

3327 .................. Machine Shops; Turned Product; and Screw, Nut, and Bolt Manufacturing. 

3328 .................. Coating, Engraving, Heat Treating, and Allied Activities. 

3331 .................. Agriculture, Construction, and Mining Machinery Manufacturing. 

3335 .................. Metalworking Machinery Manufacturing. 

3361 .................. Motor Vehicle Manufacturing. 

3362 .................. Motor Vehicle Body and Trailer Manufacturing. 

3363 .................. Motor Vehicle Parts Manufacturing. 

3366 .................. Ship and Boat Building. 

3371 .................. Household and Institutional Furniture and Kitchen Cabinet Manufacturing. 

3372 .................. Office Furniture (including Fixtures) Manufacturing. 

3379 .................. Other Furniture Related Product Manufacturing. 

4231 .................. Motor Vehicle and Motor Vehicle Parts and Supplies Merchant Wholesalers. 

4233 .................. Lumber and Other Construction Materials Merchant Wholesalers. 

4235 .................. Metal and Mineral (except Petroleum) Merchant Wholesalers. 

4239 .................. Miscellaneous Durable Goods Merchant Wholesalers. 

4244 .................. Grocery and Related Product Merchant Wholesalers. 

4248 .................. Beer, Wine, and Distilled Alcoholic Beverage Merchant Wholesalers. 

4413 .................. Automotive Parts, Accessories, and Tire Stores. 

4422 .................. Home Furnishings Stores. 

4441 .................. Building Material and Supplies Dealers. 

4442 .................. Lawn and Garden Equipment and Supplies Stores. 

4451 .................. Grocery Stores. 

4522 .................. Department Stores. 

4523 .................. General Merchandise Stores, including Warehouse Clubs and Supercenters. 

4533 .................. Used Merchandise Stores. 

4543 .................. Direct Selling Establishments. 

4811 .................. Scheduled Air Transportation. 

4841 .................. General Freight Trucking. 

4842 .................. Specialized Freight Trucking. 

4851 .................. Urban Transit Systems. 

4852 .................. Interurban and Rural Bus Transportation. 

4853 .................. Taxi and Limousine Service. 

4854 .................. School and Employee Bus Transportation. 

4859 .................. Other Transit and Ground Passenger Transportation. 

4871 .................. Scenic and Sightseeing Transportation, Land. 

4881 .................. Support Activities for Air Transportation. 

4883 .................. Support Activities for Water Transportation. 

4889 .................. Other Support Activities for Transportation. 

4911 .................. Postal Service. 

4921 .................. Couriers and Express Delivery Services. 

4931 .................. Warehousing and Storage. 

5322 .................. Consumer Goods Rental. 

5621 .................. Waste Collection. 

5622 .................. Waste Treatment and Disposal. 

6219 .................. Other Ambulatory Health Care Services. 

6221 .................. General Medical and Surgical Hospitals. 

6222 .................. Psychiatric and Substance Abuse Hospitals. 

6223 .................. Specialty (except Psychiatric and Substance Abuse) Hospitals. 

6231 .................. Nursing Care Facilities (Skilled Nursing Facilities). 

6232 .................. Residential Intellectual and Developmental Disability, Mental Health, and Substance Abuse Facilities. 

6233 .................. Continuing Care Retirement Communities and Assisted Living Facilities for the Elderly. 

6239 .................. Other Residential Care Facilities. 

6243 .................. Vocational Rehabilitation Services. 

7111 .................. Performing Arts Companies. 

7112 .................. Spectator Sports. 

7131 .................. Amusement Parks and Arcades. 

7211 .................. Traveler Accommodation. 

7212 .................. RV (Recreational Vehicle) Parks and Recreational Camps. 

7223 .................. Special Food Services. 

3. Updated Data 

The FEA has updated data used in the 

PEA to the most recent data available. 

The data from the PEA and the updated 

data used for this FEA appear in Table 

2, below. 


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47334 Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations 

19Fringe benefit factor calculated as [1/(1–0.312)], 

where 0.312 is the proportion of the average total 

benefits constituted by fringe benefits among 

civilian workers in all industries, as reported on 

Table 2 of the BLS’s ECEC report, June 2021: 

https://www.bls.gov/news.release/archives/ecec_

09162021.pdf. 

20Seventeen percent is OSHA’s standard estimate 

for the overhead cost incurred by the average 

employer. 

21This wage category has also been widely used 

for similar administrative purposes for other OSHA 

rulemakings, without controversy (e.g., the 2016 

recordkeeping rulemaking—see 81 CFR 29675). 

22One commenter even suggested the physicians 

may be needed to determine whether injuries were 

work-related now that the injury and illness reports 

will be made public (Docket ID 0088). However, 

like related discussions elsewhere in this FEA, this 

obligation (i.e., the need to determine workrelatedness of an injury) existed prior to this rule. 

Because it is not an additional cost created by this 

rule, it is not included. 

TABLE 2—DATA IN THE PEA AND THE FEA 

PEA estimates FEA estimates 

Name Value Source Name Value Source 

Base Wages SOC 19–5011 ............... $37.55 ............. BLS OEWS 5/2020 .... Base Wages SOC 19–5011 (safety 

specialist).

$37.86 ............. BLS OEWS 5/2021.1

Base Wages 15–1252 (software developer).$58.17 ............. BLS OEWS 5/2021.1

Fringe Benefits Civilian ...................... 0.312 ............... BLS ECEC 6/2021 ..... Fringe Benefits Civilian ...................... 0.310 ............... BLS ECEC 9/2022.2

Base Wages GS–13 Step 6 ............... $48.78 ............. OMB FY 2020 ............ Base Wages GS–13 Step 6 .............. $55.06 ............. OMB 2023.3

Fringe Benefits Government .............. 0.381 ............... BLS ECEC 6/2021 ..... Fringe Benefits Government .............. 0.381 ............... BLS ECEC 9/2022.2

Appendix B Establishments ............... 48,919 ............. OSHA/OSA 2021 ........ Appendix B Establishments ............... 52,092 ............. OSHA/OSA 2022.4

Total Submissions .............................. 718,316 ........... OSHA/OSA 2021 ........ Total Submissions .............................. 766,257 ........... OSHA/OSA 2022.4

Manual Submission Time 300/301 ..... 10 minutes ...... PRA 04/22 5 ................ Manual Submission Time 300/301 .... 15 minutes ...... OSHA/OSA. 2022.4

1BLS May 2021 Occupational Employment and Wage Statistics data, released March 31, 2022. https://www.bls.gov/oes/current/oes195011.htm#nat. Accessed October 05, 2022. 2BLS September 2022 Employer Costs for Employee Compensation, released December 15, 2022. https://www.bls.gov/news.release/pdf/ecec.pdf. Accessed February 20, 2023. 3OMB January 2023 Salary Table 2022–RUS. https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2023/RUS_h.pdf. Accessed 

February 22, 2023. 4 Docket ID 0103. 

5 Recordkeeping and Reporting Occupational Injuries and Illnesses (29 CFR part 1904). OMB Control #1218–0176. 

C. Cost 

§ 1904.41(a)(2): Annual Electronic 

Submission of Information From OSHA 

Form 300 Log of Work-Related Injuries 

and Illnesses and OSHA Form 301 

Injury and Illness Incident Report by 

Establishments With 100 or More 

Employees in Designated Industries 

OSHA is retaining the same cost 

methodology in this FEA as in the PEA. 

In the PEA, the agency estimated the 

cost of electronic data submission per 

establishment by multiplying the hourly 

compensation (in dollars) of the person 

expected to submit the records 

electronically by the time required for 

the submission. OSHA then multiplied 

this cost per establishment by the 

estimated number of Appendix B 

establishments required to submit data, 

resulting in the total estimated cost of 

this part of the proposed rule. 

OSHA also calculated the estimated 

cost for establishments to become 

familiar with the process of 

electronically submitting the required 

information. The total estimated cost of 

this part of the proposed rule was 

calculated by multiplying the hourly 

wages (in dollars) of the person 

expected to submit the records 

electronically by the time required to 

learn how to use OSHA’s system. The 

resulting value was then multiplied by 

the number of establishments in 

appendix B (87 FR 18549–551). 

1. Wages 

a. Wage Estimates in the PEA 

OSHA has retained the same wage 

assumptions and methodology from the 

PEA but has updated the figures to 

include current data. In the PEA, the 

agency estimated the compensation of 

the person expected to perform the task 

of electronic data submission, assuming 

that this task would be performed by an 

Occupational Health and Safety 

Specialist. As indicated in Table 2, 

above, the agency used BLS’s 

Occupational Employment and Wage 

Statistics (OEWS) data to determine that 

the mean hourly wage for an 

Occupational Health and Safety 

Specialist was $37.55 per hour. Then, 

OSHA used June 2021 data from the 

BLS National Compensation Survey to 

derive a mean fringe benefit factor of 

1.45 for civilian workers in general.19

OSHA then multiplied the mean hourly 

wage ($37.55) by the mean fringe benefit 

factor (1.45) to obtain an estimated total 

compensation (wages and benefits) for 

Occupational Health and Safety 

Specialists of $54.58 per hour ([$37.55 

per hour] × 1.45). OSHA next applied a 

17 percent overhead rate to the base 

wage ([$37.55 per hour] × 0.17), totaling 

$6.38 per hour.20 The $6.38 was added 

to the total compensation ($54.58), 

yielding a fully loaded wage rate of 

$60.96 [$54.58 + $6.38] per hour. 

b. Comments on OSHA’s Wage 

Estimates 

Some commenters expressed the 

opinion that the wage rate estimates 

used in the PEA were too low. For 

example, the National Federation of 

Independent Business (NFIB) and the 

Chamber of Commerce commented that 

the potential impacts from OSHA 

publishing work-related injury and 

illness information would require that 

companies have senior executives and 

legal counsel review the logs for both 

employee privacy and reputational 

harm (Docket IDs 0036, 0088). The 

Chamber estimated that involving 

executives and legal counsel would 

increase the wage rate used for this 

analysis to $67.01 per hour (Docket ID 

0088). 

OSHA concludes that an appropriate 

wage rate has been used for this rule. 

While some companies may choose to 

involve executives or lawyers in the 

submission process, others will delegate 

duties to administrative assistants or 

office managers. OSHA considers the 

wage rate for Occupational Safety and 

Health Specialists to represent a rough 

average among the wages for various 

possible job categories that might 

submit the data under this rule.21 It 

should be emphasized, however, that 

this wage is intended to reflect only the 

cost of entering the data to submit it 

electronically to the agency—the 

employer is already responsible for 

recording the data correctly. If some 

employers consider it necessary for 

employees in very high wage categories 

to review the cases that are already 

required to be recorded, that is not an 

incremental cost of this rule.22 In 

addition, the Chamber of Commerce 

commented that OSHA is using an 

incorrect overhead estimate when 

calculating the loaded wage of the 


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23See ETA Final Rule, Adverse Effect Wage Rate 

Methodology for the Temporary Employment of H– 

2A Nonimmigrants in Non-Range Occupations in 

the United States, 88 FR 12760, 12788 (Feb. 28, 

2023). 

24See Wage and Hour Division Final Rule, 

Increasing the Minimum Wage for Federal 

Contractors, 86 FR 67126, 67205 (Nov. 24, 2021). 

25For an example of an earlier OSHA economic 

analysis that used the EPA overhead rate, see 

OSHA’s final rule on Walking-Working Surfaces 

and Personal Protective Equipment (Fall Protection 

Systems) at 81 FR 82494, 82931 (Nov. 18, 2016). 

26As noted in a previous related Federal Register 

notice (see 81 FR 29683), in principal, the labor 

costs of affected workers reflect the opportunity 

costs of that labor. 

27See Docket ID 0103 for a spreadsheet with the 

full calculations. Slight discrepancies in results are 

likely due to rounding. 

28The fringe benefit factor was calculated as [1/ 

(1–0.310)], where 0.310 is the proportion of average 

total benefits constituted by fringe benefits among 

civilian workers in all industries, as reported on 

Table 2, above. 

29Seventeen percent is OSHA’s standard estimate 

for the overhead cost incurred by the average 

employer. 

30For BLS Occupational Code 15–1252 ‘‘Software 

Developer,’’ total compensation is $84.30 ($58.17 

mean hourly wage + $26.13 fringe benefits) plus 

$9.89 in overhead [$58.17 × 0.17].] 

31OSHA’s estimate of injury and illness cases is 

based on calendar year 2019 data submitted to the 

agency through the Injury Tracking Application 

(ITA) (Docket ID 0106). Establishments with 100 or 

more employees in appendix B industries reported 

a total of 766,257 recordable fatalities, injuries, and 

illnesses for that year. 

32One of those commenters suggested that OSHA 

include costs for creating training materials and 

conducting training sessions as part of 

familiarization (Docket ID 0054). Another made a 

more general statement that the agency’s estimate 

for rule familiarization did not account for the time 

it will take to prepare or implement OSHA’s 

proposed changes or develop processes to comply 

with the new requirements (Docket ID 0094). These 

elements are discussed under Training later in this 

analysis. 

Occupational Health and Safety 

Specialist (Docket ID 0088). It argued 

that the correct factor for computation of 

overhead is 0.6949 (rather than OSHA’s 

longstanding reliance on the PEA’s 0.17 

for overhead costs), which the 

commenter sourced from the Bureau of 

Economic Analysis, Table 7 (Relation of 

Gross Domestic Product, Gross National 

Income, and National Income). The 

Chamber of Commerce’s overhead factor 

estimate would increase the overhead 

amount from $6.38 per labor hour to 

$26.09 per labor hour. 

The agency believes the Chamber has 

incorrectly inflated the ‘‘overhead’’ cost 

factor by including what it refers to as 

a ‘‘profit opportunity cost element’’ 

(Docket ID 0088). The overhead rate that 

OSHA uses in this cost analysis (17 

percent) is based on the EPA’s ‘‘Wage 

Rates for Economic Analyses of the 

Toxics Release Inventory Program,’’ 

June 10, 2002. OSHA has used this 

overhead rate for several economic 

impact analyses previously, and it is a 

standard estimate for this agency, the 

Employment and Training 

Administration,23 the Wage and Hour 

Division,24 and the EPA.25 As expressed 

in a prior OSHA rule, OSHA does not 

believe the inclusion of ‘‘profit 

opportunity cost elements’’ in an 

overhead estimate is appropriate in the 

context of this economic analysis.26

c. Wage Estimates in the FEA 

For the final rule, OSHA has updated 

the fully loaded wages to $61.31 per 

hour, using the same calculation 

method as in the PEA and the updated 

data listed in Table 2, above.27

Specifically, OSHA multiplied the mean 

hourly wage ($37.86) by the mean fringe 

benefit factor (1.45) 28 to obtain an 

estimated total compensation (wages 

and benefits) for Occupational Health 

and Safety Specialists of $54.87 per 

hour ([$37.86 per hour] × 1.45). OSHA 

next applied a 17 percent overhead rate 

to the base wage ([$37.86 per hour] × 

0.17), totaling $6.44.29 The $6.44 was 

added to the total compensation 

($54.87) yielding a fully loaded wage 

rate of $61.31 [$54.87 + $6.44]. In 

response to comments, OSHA has added 

additional costs to the FEA that use 

loaded wages for a Software Developer 

at $94.19,30 based on an hourly base 

wage of $58.17, in the calculation of 

those costs. 

2. Estimated Case Counts 

In the PEA, based on the 2020 data 

collection of 2019 OSHA Form 300A 

data, OSHA estimated that 

establishments with 100 or more 

employees, in proposed appendix B 

industries, reported 718,316 cases to 

OSHA. The Phylmar Regulatory 

Roundtable (PRR) asserted, without 

pointing to specific support, that 

‘‘industries required to submit have a 

history of higher incident rates’’ and 

questioned the average of 14.7 cases per 

establishment on this basis (Docket ID 

0094). PRR stated that ‘‘it does not seem 

plausible that there are enough 

establishments with zero cases to bring 

the estimates this low.’’ In support, PRR 

described several large employers, with 

up to 12,000 employees each, that 

recorded more than 14.7 cases (up to 

155 cases) in certain years. OSHA notes 

that it used the average number of cases 

submitted by establishments with 100 or 

more employees in NAICS industries on 

appendix B. PRR’s limited examples do 

not disturb the calculated averages, 

which are based on data from affected 

establishments. OSHA used the average 

number of cases on Form 300A 

submissions across all affected 

establishments to represent the average 

number of cases an establishment would 

submit via manual entry. For this final 

rule, OSHA has updated the estimate of 

total cases reported by establishments 

with 100 or more employees in 

appendix B industries to 766,257 

cases,31 as mentioned in Table 2, above. 

This estimate has been updated from the 

PEA. OSHA has expanded the number 

of establishments to include all 

establishments with at least 100 

employees in industries that are on final 

appendix B, which includes six 

industries that were not included on 

proposed appendix B. 

3. Familiarization 

In the PEA, OSHA estimated that 

establishments would take 10 minutes, 

on average, to familiarize themselves 

with changes to the recordkeeping 

requirements in the proposed rule. 

Based on this, the agency calculated a 

one-time cost for familiarization of 

$497,033 [(48,919 establishments) × (10 

minutes/establishment) × (1 hour/60 

minutes) × ($60.96/hour)]. The number 

of establishments in the PEA was based 

on submissions in 2019 to the ITA for 

establishments that were in the 

proposed appendix B in the NPRM. 

The U.S. Poultry and Egg Association, 

the North American Meat Institute, the 

Chamber of Commerce, and the Phylmar 

Regulatory Roundtable argued that 

OSHA undercounted the amount of time 

required to complete rule 

familiarization for the proposed rule 

(Docket IDs 0054, 0070, 0088, 0094). 

The Chamber of Commerce asserted that 

OSHA’s estimate ‘‘ignores the 

familiarization time cost that 

establishments not covered will incur to 

determine their non-covered status, and 

it suggests an extremely optimistic but 

empirically baseless view of the time 

that will be required by those covered 

to read the rule, review its requirements 

relative to their current operations and 

procedures, identify and implement 

new policies and procedures to comply 

with the new rule, and to train 

administrative and operational 

employees in their new compliance 

duties’’ (Docket ID 0088). Other 

commenters claimed additional time 

would be required for processing by a 

corporate safety department subject 

matter expert (Docket ID 0054) and for 

‘‘legal analysis’’ (Docket ID 0070).32

For the establishments that do not 

need to submit the Form 300 and 301 

data but must determine if they are 

subject to the requirement, the Chamber 

of Commerce estimated, based on 

unspecified sources, that the 1.9 million 

establishments with 10 to 99 employees 

will spend 5 minutes determining that 


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33 0.17 hours is a rounded value representing 10 

minutes, or 10/60th of an hour, per establishment. 

34 $62,397 annualized over ten years with a 3 

percent discount rate. 

35Form 300A data submitted to OSHA through 

the Injury Tracking Application (ITA) for 2019 

indicated that almost half of establishments (47 

percent) were already submitting their data by batch 

file at that time (Docket ID 0103). 

36 0.17 hours is a rounded value representing 10 

minutes, or 10/60th of an hour, per case. 

they are not affected. According to the 

Chamber of Commerce, at $1.65 per 

minute, the total cost would be $15.9 

million. Additionally, ‘‘for the 172,277 

establishments with 100 or more 

employees, on average a 15-minute 

review by senior managers or in-house 

legal counsel may be able to answer the 

basic affected or not affected question 

for an aggregate familiarization cost of 

$4.3 million.’’ (Docket ID 0088). 

Finally, the Chamber of Commerce 

asserted that rule familiarization is more 

complicated than OSHA estimates. The 

commenter believed that OSHA failed to 

consider that each establishment that 

has determined that it is subject to the 

reporting requirement ‘‘must now 

consider how the new requirements 

impact existing policies and procedures, 

what are the risks of reputational 

damage or of employee privacy 

violation liability and how can those 

risks be mitigated by changing policies 

and procedures’’ (Docket ID 0088). For 

the PEA’s estimated 48,919 

establishments required to comply with 

the new reporting requirement, the 

commenter estimates a lower bound 

estimate of 8 hours of professional time, 

which would result in an aggregate cost 

of $38.7 million. OSHA does not, 

however, require such considerations: 

the final rule has accounted for privacy 

concerns (comments on costs related to 

privacy are addressed later in this 

section) and, as discussed later, 

employers should already be familiar 

with the reporting system because they 

are using it to submit Form 300A data. 

Furthermore, the commenter’s 

recommendation of an average of 8 

hours per establishment vastly exceeds 

OSHA’s traditional estimates of 

familiarization time. For comparison, in 

the 2016 final recordkeeping rule, 

OSHA included only 10 minutes for 

familiarization costs, which included 

the time for establishments to create 

accounts and enter basic establishment 

information in the ITA (see 81 FR 

29680), none of which has to be done 

again for purposes of complying with 

the final rule at issue here. 

OSHA disagrees that more than 10 

minutes will be required for rule 

familiarization in this case. Under the 

existing recordkeeping rule, employers 

are already required to keep part 1904 

injury and illness records. In addition, 

all establishments that will have to 

submit case-specific information from 

their Form 300 Log and 301 Incident 

Report under this rule are already 

required to submit establishment 

information from their Form 300A 

Annual Summary, using the same 

interface (the ITA) they will use to 

submit their case information. OSHA 

intends to notify all establishments 

required to submit data under the new 

rule of this new obligation. In addition, 

OSHA will update its online ITA 

application to be consistent with this 

final rule. Employers unsure about 

whether they are covered by this final 

rule can use this application (at https:// 

www.osha.gov/itareportapp) to 

immediately determine their data 

submission obligations. Thus, there will 

be no need for establishments to spend 

time to determine whether they are 

affected by the final rule or not. 

Altogether, OSHA concludes that 10 

minutes is an appropriate amount of 

time for employers to become familiar 

with the rule (with assistance from 

OSHA’s application or OSHA website 

materials, if necessary). 

OSHA has decided to retain the 

assumptions and the methodology from 

the PEA for this final rule. Using the 

updated numbers reported in Table 2, 

above, OSHA now estimates the onetime cost for familiarization as 

$532,257, calculated as [(52,092 

establishments) × (0.17 hours/ 

establishment) 33 × ($61.31/hour)]. 

Annualizing this rate over ten years 

with a 7 percent discount rate yields an 

annual cost of $75,781 34 to the private 

sector. 

4. Record Submission 

For the time required for the data 

submission in the PEA, OSHA used the 

estimated unit time requirements 

reported in OSHA’s paperwork burden 

analysis for 29 CFR part 1904 Recording 

and Reporting Occupational Injuries 

and Illnesses (OMB Control Number 

1218–0176). The agency estimated that 

it would take 10 minutes to submit 

information about each case manually; 

this estimate does not apply when 

establishments submit the records as 

batch files, because batch files are a 

means of submitting multiple cases at 

one time. 

In the PEA, OSHA estimated that 

there would be 48,919 establishments 

reporting 718,386 cases total, or 14.7 

cases per establishment, on average (87 

FR 18549–50). The agency estimated 

that about half of all reporting 

establishments (24,460) would submit 

half of the total cases (359,193 cases) via 

one batch file per establishment.35 This 

yielded an estimated cost of $248,517 

[(24,460 establishments) × (10 minutes/ 

establishment) × (1 hour/60 minutes) × 

($60.96/hour)]. The average cost per 

establishment was estimated to be 

$10.16 per establishment for 

establishments submitting via batch file. 

OSHA then estimated that the other 

half of establishments (24,460) would 

manually submit each case from their 

establishment individually. Using the 

mean of 14.7 cases per establishment 

(718,386 total cases divided by 48,919 

total establishments) and an estimated 

time of 10 minutes per case, OSHA 

estimated 147 minutes per 

establishment to submit records 

electronically, on an individual case 

basis. This produced a total cost for 

manual submission of $3,649,520 

[(24,460 establishments) × (0.17 hours/ 

case) 36 × (14.7 cases) × ($60.96/hour)], 

or $149 per establishment]. Finally, 

OSHA summed the estimated batch-file 

submissions ($248,517) and manual 

submission ($3,649,520), which resulted 

in estimated total cost of $3,898,037 to 

submit the 718,316 records. 

Dow, the Chamber of Commerce, and 

the Phylmar Regulatory Roundtable 

(PRR) commented that OSHA is 

underestimating the amount of time 

required for an establishment to submit 

Form 300A information (Docket IDs 

0054, 0088, 0094). Dow said that 

establishments must spend time to 

‘‘locate the website, create an account, 

retrieve password, read instructions, 

gather, and prepare incident 

information etc.’’ (Docket ID 0054). The 

commenter indicated that it would take 

more than 10 minutes per case per 

establishment. Specifically, it would 

take 1–2 hours to prepare the 

submission, and 15–20 minutes per case 

to input the information because there 

are more than 25 fields that must be 

filled in. Dow added that when the 

submission is completed via batch file, 

1–2 hours is required to generate and 

review the reports for submission, even 

if it only takes 10 minutes to actually 

upload the 300A data. It asserted that 

this time estimate will only increase 

with additional forms (Docket ID 0054). 

The Chamber of Commerce 

commented that OSHA’s reporting 

burden estimate of 10 minutes per case 

is not based on empirical data. It 

indicated that this reporting burden 

should be inclusive of the following 

activities: compiling, analyzing, 

preparing, reviewing internally, and 

submitting the data electronically. The 

Chamber’s estimate was 60 minutes per 

case using a blended management and 

professional rate. It maintained that its 


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37For example, 2019 Form 300A data submitted 

to OSHA through the ITA indicate that 

establishments with 100–199 employees submitted 

50% of data by batch file, which was higher than 

the percentage submitted by batch file for 

employers with 500 or more employees (Docket ID 

0103). 

higher time estimate accounted for the 

‘‘necessity for internal review of each 

case and of the final compiled reports 

by various levels of management and 

internal legal counsel.’’ The Chamber 

added that its ‘‘more realistic estimate of 

aggregate internal labor time for 

preparation and review increases the 

previous calculation of $11.9 million to 

$71.1 million. (718,386 cases × 60 

minutes per case × $1.65 per minute).’’ 

Finally, the Chamber suggested that 

firms would need to hire outside legal 

counsel to complete their review 

process which the Chamber estimated 

would increase costs by $4.8 million 

($6.67 per minute of outside legal 

counsel time) for the total estimated 

718,386 cases (Docket ID 0088). 

The National Federation of 

Independent Businesses and the 

Precision Machined Products 

Association commented on the 

differences in small and medium 

employers compared to large employers 

(Docket IDs 0036, 0055). These 

commenters noted that small and 

medium employers typically cannot 

afford the experts, accountants, and 

lawyers needed to comply with 

regulations. Additionally, they asserted 

that small and medium employers do 

not have the resources or technology to 

submit batch files and therefore must 

manually input each case. The Precision 

Machined Products Association added 

that the cost per submission for small 

and medium companies is closer to 

double what OSHA estimated in the 

PEA (Docket ID 0055). 

The North American Meat Institute, 

the Plastics Industry Association, the 

Employers E-Recordkeeping Coalition, 

and the Chamber of Commerce 

specifically cited time spent on quality 

assurance as a concern (Docket IDs 

0070, 0086, 0087, and 0088). The 

Plastics Industry Association wrote that 

‘‘the cost of quality assurance 

procedures necessary to ensure 

compliance with a proposed rule must 

be treated as a component of the burden 

hours required by the rule. The audit is, 

in effect, not a voluntary measure, but 

one that needs to be incurred to ensure 

compliance and avoid over-reporting’’ 

(Docket ID 0086). The Chamber of 

Commerce focused on the risk 

associated with publicly posting these 

injury and illness records, which in turn 

would result in increased ‘‘presubmission due diligence’’ (Docket ID 

0088). 

OSHA concludes that more 

information must be submitted from the 

Form 300 Log and Form 301 Incident 

Report than from the Form 300A 

Annual Summary. Therefore, the agency 

is adjusting the estimated time required 

to manually submit electronic records 

from 10 minutes per case per 

establishment to 15 minutes per case 

per establishment. Given the additional 

amount of information required, OSHA 

believes that a 50 percent increase in the 

burden estimate is sufficient. OSHA 

notes, however, that employers are 

likely to spend less time, because 

employers will likely only copy and 

paste information from existing forms 

into the fields in OSHA’s ITA. 

Employers for which it takes longer per 

case to submit the information could 

choose instead to transmit all their data 

in one batch-file submission. 

OSHA disagrees with commenters’ 

assertions that the final rule necessitates 

the use of additional experts, 

accountants, senior managers, 

physicians, or lawyers beyond those 

employers currently engage to comply 

with existing recordkeeping and 

submission requirements under part 

1904. The final rule does not change 

employer obligations beyond the 

requirement that establishments 

electronically submit specific illness 

and injury information that the 

establishment already records. 

Furthermore, there is a requirement in 

§ 1904.32 for employers to verify the 

entries on the Form 300 Log to ensure 

that they are complete and accurate. 

Section 1904.32 also requires a 

company executive to certify the Form 

300A once it is completed, by 

examining the Form 300 Log. Costs to 

perform these verification and 

certification tasks were accounted for in 

the previous rule that imposed these 

requirements (see 66 FR 6092–93). 

Thus, OSHA’s expectation is that 

employers have already taken measures 

to ensure the information employers 

have recorded and will be submitted is 

accurate. Any due diligence or audit 

measures an establishment chooses to 

take should predate this rule and should 

not be attributed as an additional cost 

specific to this rule. Finally, OSHA’s 

estimate of an hourly wage for the 

recordkeeper submitting the data is 

based on the assumption that this task 

is performed by a safety and health 

specialist who is already familiar with 

the establishment’s safety and health 

records. 

While OSHA is not requiring 

submission via batch filing, OSHA 

disagrees that smaller companies 

affected by this rule do not have the 

capability to do batch file submissions. 

Currently, approximately half of all 

establishments that are required to 

submit their records electronically do so 

using batch files, and an analysis of that 

information shows that smaller 

establishments actually use batch file 

submission more frequently than some 

categories of larger establishments.37

Further, OSHA believes that the time 

estimated to manually upload the 

required information is appropriate for 

small, medium, and large employers. It 

is also worth reiterating that the new 

requirement to submit data from the 

Form 300 and Form 301 only affects 

establishments with more than 100 

employees, so the smallest employers 

are not affected. 

A couple of commenters argued that 

OSHA should account for additional 

costs for compliance due to the 

necessity of maintaining two sets of 

records as a result of the final rule’s 

submission requirements (Docket IDs 

0042, 0058). As the Louisiana Chemical 

Association said, ‘‘[b]esides the out-ofpocket expenses associated with 

compliance, there are other 

administrative burdens, for example, the 

duplicative work of maintaining two 

sets of 300 and 301 forms (a hard copy 

and one form for electronic submission 

with redacted information)’’ (Docket ID 

0042). 

This rule does not, however, require 

duplicative recordkeeping. As noted in 

Section III.B of the Summary and 

Explanation, OSHA cautions employers 

against including personally identifiable 

information on the Forms 300 and 301 

when they initially fill out those forms. 

The forms themselves contain language 

about confidentiality of personal 

information and indicate that PII should 

not be included. To the extent 

employers choose to include PII on 

those forms despite these warnings, it is 

per a decision by the employer. Such 

data can be excluded during data 

submission to the extent it is on the 

employer’s forms. Furthermore, as 

described elsewhere in this preamble, 

OSHA is taking multiple steps to protect 

against the publication of any 

information that could reasonably be 

expected to identify individuals 

directly, including not collecting certain 

information and using de-identification 

software to remove any such 

information that is submitted by 

employers. 

OSHA has decided to retain the 

methodology from the PEA for 

estimating the cost of data submission 

but has added an additional 5 minutes 

(an increase from 10 to 15) per 

submitted case for establishments that 

do not submit batch files and has 


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38The average cost per establishment to submit 

the Form 300 and 301 data to OSHA ($133.46) was 

calculated as [(Cost per establishment to submit 

batch files ($10.22) × establishments submitting 

batch files (24,668)) + (Cost per establishment to 

submit individual files ($242.41) × establishments 

submitting cases manually (27,424,))]/Total 

establishments (52,092). 

39 0.17 hours is a rounded value representing 10 

minutes, or 10/60th of an hour, per establishment. 

40 0.25 hours represents 15 minutes, or 15/60th of 

an hour, per case. 

41OSHA’s assumption that batch files are 

submitted on a per establishment basis may 

overestimate the costs of the rule, as batch files are 

typically submitted at the firm level on behalf of 

multiple establishments. As documented in the 

accompanying spreadsheet (Docket ID 0103), if 

OSHA assumed that batch files are submitted by 

firms rather than establishments, the costs would be 

a fraction of the estimate presented here— 

approximately $7,316 annually, as opposed to the 

estimated $252,048. 

42For example, data submitted from 2019 Form 

300A to OSHA through the ITA shows submissions 

from 52,092 establishments with 100+ employees. 

The information for these establishments was 

submitted by 18,156 users. Of those, 716 users 

submitted the data for 24,668 establishments and 

332,498 recordable cases using batch files (Docket 

ID 0103). 

updated other data to more recent 

figures. Using the updated data in Table 

2, above, OSHA calculated a new 

average cost per establishment for batch 

file submitters of $10.22 per 

establishment. Additionally, OSHA 

calculated an updated cost to those 

submitting manually of $242.41 per 

establishment. That yields a total cost 

for electronic submission of OSHA 

Forms 300 and 301 of $133.46 per 

establishment on average,38 or a total of 

$6.9 million annually, to submit the 

currently estimated 766,257 records. 

The calculations above are based on 

an estimated 52,092 establishments 

reporting 766,257 cases total, or 15.82 

cases per establishment submitting 

manually and 13.48 cases per 

establishment reporting with batch-files. 

An estimated 47 percent of all reporting 

establishments (24,668) submitting via 

batch file would submit 43 percent of 

the total cases (332,498 cases), at an 

estimated total cost of $252,048 [(24,668 

establishments) × (0.17 hours/ 

establishment) 39 × ($61.31/hour)], or 

$10.22 per establishment on average for 

batch file submission. For the other 53 

percent of establishments (27,424) that 

OSHA estimates would manually 

submit each case, using OSHA’s 

assumption of a mean of 15.82 cases per 

establishment and the increased time of 

15 minutes per case, the result is an 

estimated 237 minutes per 

establishment to submit their 

information electronically each year. 

This produces a total cost for manual 

submission of $6,647,982 [(27,424 

establishments) × (0.25 hours/case) 40 × 

(15.82 cases) × ($61.31/hour)], or 

$242.41 per establishment for manual 

submission. 

As suggested in the PEA, the agency 

believes that this approach likely 

overestimates costs, because while 

OSHA’s estimates reflect manual entry 

of the data for nearly half of 

establishments, in the agency’s 

experience, as indicated previously, 

nearly half of the covered 

establishments were already submitting 

data to the ITA by uploading a batch file 

in 2019. This percentage will likely 

increase over time as a result of this 

rule. As indicated elsewhere in the FEA, 

OSHA expects more of the cases to be 

submitted by batch file once this rule 

goes into effect, because OSHA expects 

companies with many establishments 

and/or many cases will have computer 

systems that can export their part 1904 

injury and illness recordkeeping data 

into an easily uploaded file format.41

The agency notes that some 

establishments will have no recordable 

injuries or illnesses in a given year; 

thus, their time and cost burden for 

submission under this rule will be zero. 

In contrast, establishments with many 

recordable injuries and illnesses could 

have a time burden of significantly more 

than the average of about four hours if 

they enter the data manually. OSHA 

believes that establishments with many 

cases are likely to submit a single batch 

file, while establishments that only have 

a few cases are more likely to submit 

cases manually than by batch file.42

5. Custom Forms 

OSHA received multiple comments 

regarding the difficulty of submitting 

electronic records when the 

establishments use custom forms for 

their recordkeeping. The International 

Bottled Water Association, the Plastics 

Industry Association, the Employers ERecordkeeping Coalition, and the 

Phylmar Regulatory Roundtable (PRR) 

explained that forms such as California 

Form 502025 require most, or all of, the 

same information as the OSHA forms 

(Docket IDs 0076, 0086, 0087, 0094). 

PRR noted that forms such as 502025 

contain other information that is PII and 

are organized differently, both of which 

mean that manual entry will take longer 

than 10 minutes (Docket ID 0094). PRR 

added that significant additional time is 

required to review and ensure PII and 

sensitive information is not included. 

The North American Meat Institute said 

that current use of other forms would 

require significant administrative 

burden to translate the required 

information into the online form 

(Docket ID 0070). 

OSHA notes that § 1904.29(a) states 

that employers must use the OSHA 300 

Log, 301 Incident Report, and 300A 

Annual Summary—or equivalent 

forms—when recording injuries and 

illnesses under part 1904. Section 

1904.29(b)(4) further states that an 

equivalent form is one that has the same 

information, is just as readable and 

understandable, and is completed using 

the same instructions as the OSHA form 

it replaces. As discussed earlier in the 

summary and explanation of the rule, 

OSHA acknowledges that while it may 

be possible to avoid duplication in 

recording by reliance on equivalent 

forms, it will be necessary in some cases 

for reporting to re-enter that information 

into a system that is compatible with 

OSHA’s system. OSHA is aware, for 

instance, that for reporting, many 

employers use an insurance form 

instead of the Form 300 or the Form 301 

or supplement an insurance form by 

adding any additional information 

required by OSHA. The agency notes, 

however, that use of a custom form for 

recordkeeping does not change the 

information the employer copies into 

the electronic system to comply with 

OSHA data submission requirements, 

including the submission requirements 

included in this final rule. To the extent 

that an insurance form or other form 

includes information not relevant to 

OSHA reporting, it would not increase 

the time and cost for OSHA reporting. 

Where relevant, the employer may just 

skip inapplicable sections of a custom 

form when submitting their information 

to OSHA. Therefore, the time for 

transmitting the information from the 

Forms 300 and 301 is just the time to 

manually copy the required information 

into OSHA’s system, regardless of 

which form the information is recorded 

on initially. In addition, the use of 

custom forms that can capture 

information for multiple purposes does 

not prevent employers from designing 

those forms so that they can export the 

appropriate data and submit their data 

to OSHA via batch file. 

While OSHA did not find compelling 

evidence to increase the estimated 

compliance costs based on potential 

difficulties companies face from using 

custom forms, the agency has increased, 

by 50 percent, the estimated time it 

takes to submit records manually in 

response to comments received on other 

issues. This increased time could be 

considered as accounting for costs 

associated with using custom forms in 

the event employers face costs due to 

this issue. Elements of this discussion 

run parallel to and may interface with 

the discussion of potential software 

upgrades, discussed below. 


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43This percent was calculated by dividing the 

24,668 establishments submitting individual 300/ 

301 data manually (i.e., not by batch file) by the 

52,092 total establishments submitting data (Docket 

ID 0103). 

44OSHA believes employers who already own 

and use commercially available software are 

unlikely to face any additional costs because 

aftermarket software vendors will need to upgrade 

their software to ensure the software does not 

become irrelevant to the needs of their customers. 

Research conducted by ERG indicates that software 

vendors plan to upgrade software free of charge 

(Docket ID 0104). The business model selected by 

the software vendors means that they will 

inherently incur some minor costs as a result of 

providing a service without charge. The record is 

not sufficient for OSHA to provide a quantitative 

estimate of what those costs would be, but the fact 

that the vendors chose to offer this service without 

charge makes it clear that providing this update 

would not pose any threat to the economic stability 

of the software vendor industry. 

45The use of recordkeeping software provides 

significant advantages in terms of streamlining 

recordkeeping and data submission capabilities. 

Specifically, software is available that produces 

OSHA-ready reports for work-related injuries and 

illnesses; generates files in the exact format 

required for the OSHA ITA; and offers additional 

features, including ways to capture near-misses and 

hazards of all types, detailed incident 

investigations, and the root cause of an injury. 

6. Batch-File Submissions 

In the PEA, OSHA estimated that half 

of all respondents would upload their 

logs in one batch-file submission. The 

Strategic Organizing Center (SOC) 

expressed strong agreement with 

OSHA’s assumption that larger, more 

sophisticated users will use batch file 

submission (Docket ID 0079). It added 

that OSHA’s cost estimates, which rely 

on this assumption, are appropriate and 

that OSHA is correct to not assume 

widespread use of manual-entry 

submission. Further, SOC agreed that 

OSHA’s assumption that half of 

employers will submit records manually 

‘‘may result in an overestimate of the 

total and per-establishment costs of this 

part of the proposed rule’’ (Docket ID 

0079). 

The Chamber of Commerce disagreed 

with OSHA’s PEA assumption that half 

of the 48,919 affected establishments 

will be able to ‘‘drastically reduce their 

report submission times and costs by 

using a ‘batch’ process of submitting 

multiple individual case records 

through an electronic portal that OSHA 

will provide.’’ Specifically, it stated that 

the assumption is not realistic because 

the portal has not yet been built or 

tested. The Chamber further argued that 

it would be more reasonable to assume, 

at least for the first year of submission 

and maybe for subsequent years, that 

‘‘all 48,919 affected establishments will 

upload the required case information 

manually or will have to delete various 

fields to accommodate data OSHA does 

not want to collect.’’ This would double 

the cost of data submission (Docket ID 

0088). 

Data from 2019 on usage of batch 

uploads for OSHA 300A information 

indicates that data for approximately 47 

percent of establishments were already 

being submitted via batch files (Docket 

ID 0103). For the purposes of the FEA, 

OSHA estimates that the usage of batch 

files submissions will at least continue 

at the same rate as was the case in 2019 

(47 percent). However, as noted above, 

OSHA believes it is likely that batch 

filing will increase as a result of the 

requirements associated with this rule. 

As a comment from the Laborers Health 

Safety Fund of North America 

emphasized, electronic recordkeeping 

and data submission is a more costeffective way for establishments to meet 

OSHA standards (Docket ID 0080). 

Additionally, Eastern Research Group 

(ERG) (Docket ID 0105) interviewed a 

number of commercial aftermarket 

software vendors who remarked that the 

number of users of their software is 

rapidly growing. 

Notwithstanding the agency’s belief 

that electronic submission will become 

increasingly common, OSHA has 

decided to adjust its projected estimate 

from the PEA, that 50 percent of 

establishments would submit their Form 

300 and Form 301 information via a 

single batch file, based on OSHA’s 

analysis of existing data collected in 

2019. These data show that 

approximately 47 percent 43 of 

establishments submitted their records 

by batch file in 2019. However, to the 

extent that more employers continue to 

adopt this time-saving technology, the 

cost of submission will decrease, and 

the average reporting costs will be 

below OSHA’s cost estimate in this 

FEA. 

7. Software/System Upgrades Needed 

The PEA did not include a cost for 

employers to upgrade their systems in 

order to submit their files electronically 

or in batch files. OSHA received several 

comments on this topic. Electric Boat, 

the International Bottled Water 

Association, and the Employers ERecordkeeping Coalition indicated that 

software currently used by employers 

does not easily facilitate transmission of 

300 and 301 information to OSHA 

(Docket IDs 0028, 0076, 0087). The 

Employers E-Recordkeeping Coalition 

stated that the ‘‘costs to modify the 

internal software, purchase new 

software, automate injury and illness 

recordkeeping, audit the records, and in 

many instances, manually key in huge 

volumes of data would cost hundreds of 

thousands of dollars’’ (Docket ID 0087). 

Electric Boat stated that proprietary 

recordkeeping software for OSHA logs is 

not compatible with requirements to 

upload to OSHA and that large 

companies may have many cases in 

their logs. It further maintained that a 

requirement to manually enter data for 

each case would be ‘‘very difficult, 

costly and potentially inaccurate due to 

transcription errors’’ (Docket ID 0028). 

For employers not currently using 

software, Electric Boat surmised that 

information for the Form 301 incident 

report is often recorded on handwritten 

forms at individual establishments, and 

thus the time and resources needed to 

transition to a fully automated system 

would be considerable. 

The U.S. Poultry and Egg Association, 

the Employers E-Recordkeeping 

Coalition, the Chamber of Commerce, 

the National Retail Federation, and the 

Flexible Packaging Association, and 

Phylmar Regulatory Roundtable wrote 

about increased costs due to either 

reprogramming recordkeeping software 

to meet OSHA’s format or investing in 

new software altogether (Docket IDs 

0053, 0087, 0088, 0090, 0091, 0094). 

The U.S. Poultry and Egg Association 

commented that OSHA’s analysis ‘‘does 

not consider that some employers 

utilize proprietary electronic 

recordkeeping systems that would 

require program changes, possibly at a 

high cost, so that the information could 

be electronically submitted to OSHA’’ 

(Docket ID 0053). The Phylmar 

Regulatory Roundtable (Docket ID 0094) 

stated that two or three days of labor 

would be necessary to reconfigure the 

coding and modify programs currently 

used to electronically upload Form 

300A to include submission of Forms 

300 and 301. The Chamber of Commerce 

addressed the issue of small businesses 

that do not have electronic 

recordkeeping programs in place and 

was concerned that small businesses 

would not be able to afford the software 

(Docket ID 0088). 

OSHA believes that employers who 

use custom software for their 

recordkeeping will incur some, though 

limited, additional costs to upgrade 

custom computer systems. OSHA also 

believes that employers who use 

commercially available software are 

unlikely to incur any costs.44 Many 

establishments required to submit injury 

and illness data from their Form 300A 

already use software to submit that 

data.45 The larger employers that have 

created their own custom software, 

instead of relying on commercially 

available software, likely have IT 

employees already on staff that conduct 

system upgrades as part of their daily 


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46The agency has also performed a sensitivity 

analysis to recognize that some of the more complex 

software in the typically larger firms, with many 

establishments, might take as much as 50 hours to 

reprogram, depending on the complexity of the 

software (Docket ID 0103). These estimates assume 

there are not time savings from bundling these 

software updates with others needed to maintain 

and update the software, or efficiencies to be gained 

from incorporating commercial software. 

47 Docket ID 0105. 

48 $100,706 annualized over 10 years at a 3 

percent discount rate. 

49Additionally, OSHA will use software capable 

of detecting and redacting PII not redacted by 

establishments. 

routine. For these companies, existing 

IT staff can conduct any software 

upgrades needed, and OSHA has 

included a discussion of these costs 

below. If upgrading systems is cost 

prohibitive for an establishment, the 

establishment can still submit the 

required information from their part 

1904 forms manually, which is 

accounted for in OSHA’s estimates. 

Nonetheless, after a full consideration 

of comments, and notwithstanding the 

possibility that switching to commercial 

aftermarket software might be more 

economical, OSHA recognizes that there 

may be an incremental cost to 

modifying custom software unique to 

the rule. While comments provided 

limited guidance on what the cost of 

updating software may be, including 

how many firms might be affected, the 

agency determined that 20 hours of 

reprogramming is a reasonable time for 

the task (Docket ID 0104). This estimate 

also corresponds to the estimate 

submitted in the comment by the 

Phylmar Regulatory Roundtable of 2–3 

days (Docket ID 0094).46

OSHA also estimates that the group of 

firms affected by the custom software 

modification costs is a limited set. 

OSHA found that approximately 40 

percent of employers who must report 

injuries currently already use software 

to report the files,47 and the number is 

growing. The agency believes the set of 

firms using customized software to 

report cases is not a randomly 

distributed group but sorts heavily by 

the size of the firm. The agency 

examined the current universe of firms 

currently electronically batch-filing 

injury reports via its ITA system and 

found that of the 716 firms reporting for 

affected establishments, approximately 

36 percent are reporting for only one 

establishment (Docket ID 0106). OSHA 

believes the cost of updating custom 

software would predominantly affect 

only the other 64 percent of firms (456) 

that represent more than one 

establishment and report data using 

batch files (ITA cite). Those 456 firms 

also account for a disproportionate 

number of cases reported to the agency. 

For those 456 firms to upgrade their 

software, the agency assumes that this 

work would be performed by a software 

engineer at the wage rate ($94.19) 

referenced in Table 2. The FEA 

therefore calculated the cost of custom 

software as $859,042 [(456 firms) × (20 

hours) × ($94.19/hour)], or $122,308 

annualized over 10 years at a 7 percent 

discount rate.48

As indicated previously, employers 

are not required to modify their software 

to comply with the standard, but for 

very large employers, this might be their 

least-cost method for compliance. As 

laid out earlier in the analysis, other 

employers might decide that for 

purposes of OSHA compliance, it makes 

more sense to employ commercially 

available software, or even manually 

enter the cases. Therefore, issues of 

software modification do not raise 

questions of technological feasibility, as 

discussed later in the analysis, nor do 

they pose questions of economic 

feasibility. 

8. Other Costs 

OSHA also received comments on 

other potential cost items, addressed 

below. 

a. Harm to Reputation 

OSHA received multiple comments 

stating that OSHA should include costs 

to capture the argued negative 

reputational effects to companies after 

OSHA publishes their illness and injury 

information. The Plastics Industry 

Association and the Chamber of 

Commerce commented on the potential 

liabilities associated with publishing 

these work-related injury reports 

(Docket IDs 0086, 0088). The Plastics 

Industry Association noted the 

‘‘unknown consequences of public 

shaming and misuse of the information’’ 

that could lead to reputational damage 

(Docket ID 0086). 

Related comments are covered in 

Section III.G of the Summary and 

Explanation, but the agency emphasizes 

here that there is insufficient basis for 

altering the economic analysis to reflect 

this issue. Regarding reputational and 

civil liability damages, OSHA disagrees 

that the mere posting of injury and 

illness recordkeeping data on a publicly 

available website will adversely impact 

an employer’s reputation. As the Note to 

§ 1904.0 of OSHA’s recordkeeping 

regulation makes clear, the recording or 

reporting of a work-related injury, 

illness, or fatality does not mean that an 

employer or employee was at fault, that 

an OSHA rule has been violated, or that 

the employee is eligible for workers’ 

compensation or other benefits. In 

addition, OSHA already publishes data 

from the Form 300A that is collected 

through the ITA, as well as 

establishment-specific, case-specific 

information about reported work-related 

fatalities, hospitalizations, amputations, 

and losses of an eye (see https://

www.osha.gov/severeinjury and https://

www.osha.gov/fatalities). Despite online 

publication of this information for a 

number of years, commenters did not 

provide any examples of harm to 

reputation occurring as a result, nor did 

they provide any examples of misuse of 

the data that has already been 

published. 

b. Additional Time Needed To Review 

for PII 

As an adjunct to the earlier discussion 

regarding quality assurance concerns 

and the appropriate wage rate for the 

cost of submitting cases, some 

commenters also suggested that it will 

take additional time to remove PII from 

case files before they are submitted. As 

in that discussion, OSHA reiterates that 

this is an action that should already be 

addressed when the cases are recorded 

under existing practices to meet existing 

recordkeeping requirements at § 1904.4, 

§ 1904.29, and § 1904.41.49 Therefore, 

this is not a new cost of this rule, and 

the agency is not including cost for 

privacy checks in the Final Economic 

Analysis. 

c. Company Name 

One commenter, the National 

Demolition Association, stated that the 

final rule’s new requirement for 

establishments to submit their company 

name as part of their data submissions 

would impose an additional 

administrative and financial burden on 

employers. This commenter argued that 

the requirement, which is in final 

§ 1904.41(b)(10), ‘‘would be particularly 

onerous and complex for employers 

who have multiple establishments and 

limited staff resources to comply with 

the additional administrative paperwork 

and reporting requirements’’ (Docket ID 

0060). 

Submission of an establishment’s 

company name is not expected to be 

particularly time consuming. First, most 

establishments are already including 

their company names as part of their 

300A data submissions, so this new 

requirement will only affect 


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50As OSHA said in the NPRM, OSHA’s review of 

five years of electronically submitted Form 300A 

data indicates that many large firms with multiple 

establishments use codes for the Establishment 

Name field in their submission (87 FR 18546). This 

is the type of employer this new requirement will 

likely apply to and, because they are large firms 

submitting for multiple establishments, they are 

likely submitting via batch file. This means that 

company name would only need to be inputted 

once. 

51To the extent the commenter is arguing that 

determining a firm’s legal name is administratively 

difficult or would take substantial time, OSHA 

presumes that employers know their company 

names and has included no cost for that. 

52This approach is also consistent with that taken 

in OSHA’s 2016 final recordkeeping rule, which 

also required electronic submission of injury and 

illness data to OSHA (see 81 FR 29674). 

53As discussed in the Regulatory Flexibility 

Certification, the costs would be no more than 

approximately .01% of revenues ($136 costs/ 

$13,627 being the 1% threshold of revenues), 

implying a negligible price increase, if any, to 

recoup the increase in costs. 

54When preparing the final rule, the agency 

found inadvertent discrepancies between the 

written text of the PEA that was in the Federal 

Register notice for the NPRM (87 FR 18550–51) and 

the spreadsheet (Ex. 2) used to calculate the 

estimated governmental costs in the PEA. The 

agency describes those discrepancies here for the 

purposes of transparency. The annual cost of IT 

transactions was listed in the spreadsheet as 

$107,309 rather than $201,128 in the Federal 

Register notice. Annual help desk support costs 

were listed as $50,000 in the spreadsheet and 

$25,000 in the Federal Register notice. And, the 

cost of an additional IT Specialist was included in 

the spreadsheet (at an estimated $181,162) but 

omitted from the discussion in the Federal Register 

notice. Whereas the total costs to the government 

reported in the spreadsheet were $509,324, the total 

costs to the government in the Federal Register 

notice were $397,001. Because the costs listed in 

the spreadsheet are more inclusive of the universe 

of estimated costs, the estimates in the FEA are 

derived from those costs. 

establishments that are using only codes 

to identify their establishments. Second, 

establishments that are not already 

submitting their company name only 

have to input that one additional field, 

and they have to do that only one time 

if they are doing a batch file submission 

(i.e., once per batch file).50 Regardless, 

the time necessary to include the 

company name is included in the 15 

minutes OSHA has estimated as the 

time necessary to complete one 

submission.51

d. Training Costs 

The U.S. Poultry and Egg Association, 

Dow, the North American Meat 

Institute, the Motor and Equipment 

Manufacturers Association, the 

Chamber of Commerce, and the National 

Retail Federation commented that 

training costs should be included in the 

cost analysis (Docket IDs 0053, 0054, 

0070, 0088, 0090). The U.S. Poultry and 

Egg Association wrote that the analysis 

‘‘does not consider additional training 

of staff that might be required, nor does 

the rule consider costs associated with 

training existing and new staff on the 

variety of state and federal privacy laws 

that could be impacted by employers 

now knowing that the information they 

submit will necessarily be made 

available worldwide’’ (Docket ID 0053). 

The Chamber of Commerce commented 

on the need for training managers on 

how to comply with reporting formats, 

schedules, and procedures, as well as 

training for additional staff ‘‘to cover 

multiple shifts, absences, and internal 

review needs.’’ The Chamber further 

stated that time would be needed to 

‘‘train administrative and operational 

employees in their new compliance 

duties’’ (Docket ID 0088). 

OSHA concludes that additional 

training should not be necessary either 

to fill in a web form with information 

that has already been recorded, or to 

transmit records from an existing 

electronic recordkeeping system with 

which the employee is already familiar. 

Employees have already been trained on 

how to record injuries and illnesses on 

the Forms 300 and 301, pursuant to 

other previously existing requirements 

under part 1904. Thus, OSHA has 

already accounted for the time required 

to learn how to keep the records 

themselves. Any time required to learn 

how to submit the Form 300 and Form 

301 data to the ITA (the only new 

requirement in this rule) is already 

included in OSHA’s rule familiarization 

time estimate, described above.52

D. Effect on Prices 

An anonymous commenter 

commented, ‘‘This is unnecessary 

overreach which is going to cost 

employers and cost the tax payers 

additional resources to process the 

collected data . . . It will only cost 

employers more, who will charge the 

consumer more’’ (Docket ID 0025). 

OSHA disagrees. As discussed 

throughout this section, the costs to 

comply with the final rule for 

individual employers are expected to be 

about $136 per establishment to submit 

the Form 300 and 301 data. Costs at this 

level of magnitude are not expected to 

lead to price increases or raise issues of 

economic feasibility.53

E. Budget Costs to the Government 

In the PEA, OSHA included an 

estimate of the costs of the new 

requirement to the government because 

these costs represent a significant 

fraction of the total costs of the new 

requirement. OSHA received estimates 

for the costs from the U.S. Department 

of Labor Office of the Chief Information 

Officer (DOL OCIO). OSHA estimated 

that modification of the reporting 

system hardware and software 

infrastructure to accept submissions of 

Form 300 and 301 data would have an 

initial one-time cost of $1.2 million. If 

annualized over 10 years at a 7 percent 

discount rate, the $1.2 million total cost 

would equal $170,853 per year, or if 

annualized at 3 percent, it would be 

$140,677 per year. The agency also 

estimated $201,128 as the annual cost of 

additional IT transactions necessary to 

implement this rule ($0.28 per case 

times 718,316 cases for additional 

internal IT support services). Finally, 

OSHA estimated that annual help desk 

support costs would increase by 

$25,000. This estimate was based on the 

annual help desk support costs under 

the 300A submission provisions. This 

resulted in a total cost to the 

government, annualized over 10 years at 

a 7 percent rate, of $397,001.54

OSHA sought comment on this 

methodology and cost estimate and 

received no responses. After 

consideration, OSHA has decided to 

maintain the framework used in the 

proposal but has updated the estimate to 

account for the current wage rate 

indicated in Table 2, above. Therefore, 

OSHA retained the estimate of $1.2 

million for the one-time cost of 

modifying the reporting system 

hardware and software infrastructure to 

accept submissions of Form 300 and 301 

data. If annualized over 10 years at a 7 

percent discount rate, the $1.2 million 

total cost would equal $170,853 per 

year. If annualized at 3 percent, it would 

be $140,677 per year. The agency also 

estimated $128,716 as the annual cost of 

additional IT transactions necessary to 

implement this rule ($0.28 per case 

times 459,701 cases for additional 

internal IT support services). Next, the 

agency estimated $204,485, based on 

2023 wages, for OSHA to hire an 

additional IT Specialist. Finally, OSHA 

estimated that annual help desk support 

costs will increase by $50,000. 

Summing these figures, and assuming a 

seven percent discount rate, results in a 

total annualized cost to the government 

of $554,054. 

F. Total Cost 

Summing the estimated batch-file 

submission ($252,048) and manual 

submission ($6,647,982) costs results in 

an estimated total cost of $6,900,030 to 

submit 766,257 records. Combined with 

the annualized cost of $75,781 per year 

for familiarization, and $122,308 for 

software upgrade cost to employers 

submitting batch-files using custom 

computer software, estimated above (at 

7 percent), the estimated total annual 

private-sector cost of this part of the 


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55OSHA has determined that the other new 

regulatory provisions in this final rule, such as 

§ 1904.41(b)(1) (which is a clarifying provision), 

§ 1904.41(b)(9) (which sets out which data should 

be excluded from submissions), § 1904.41(b)(10) 

(which requires employers to provide their 

company name as part of their submission), and 

§ 1904.41(c) (which sets the submission deadline), 

do not impose costs beyond those accounted for in 

the costs of submission and familiarization 

discussed in this FEA. 

56One commenter, the US Poultry & Egg 

Association, objected to OSHA’s estimate of costs 

and suggested that OSHA should ‘‘conduct a pilot 

program (preferably on Federal Government 

agencies) to determine the actual cost of 

compliance’’ (Ex. 53). OSHA has a long history of 

estimating costs of its regulations and standards 

without the need for a pilot program. It is confident 

that the estimates in this rulemaking, which 

carefully consider comments from interested 

parties, are sufficient to accurately characterize the 

costs of compliance for employers. 

57See ‘‘Employer-Reported Workplace Injuries 

and Illnesses—2021’’, news release from the Bureau 

of Labor Statistics/U.S. Department of Labor, 

November 9, 2022 (https://www.bls.gov/ 

news.release/pdf/osh.pdf). 

58See, e.g., Leigh JP, Du J, McCurdy SA. An 

estimate of the U.S. government’s undercount of 

nonfatal occupational injuries and illnesses in 

agriculture. Ann Epidemiol. 2014 Apr; 24(4):254–9 

(https://pubmed.ncbi.nlm.nih.gov/24507952/); 

Spieler EA, Wagner GR. Counting matters: 

Implications of undercounting in the BLS survey of 

occupational injuries and illnesses. Am J Ind Med. 

2014 Oct; 57(10):1077–84 (https://

onlinelibrary.wiley.com/doi/10.1002/ajim.22382). 

final rule is $7,098,120. To obtain the 

estimated average cost of submission 

per establishment of $136.26, OSHA 

divided the total estimated cost of 

submission ($7,098,120) by the 

estimated number of establishments that 

would be required to submit data 

(52,092 establishments). Total costs are 

detailed in Table 3, below.55 56

TABLE 3—TOTAL COST SUMMARY

Cost element Annual cost One-time cost 

Annual electronic submission of OSHA Form 

300 Log and OSHA Form 301 Incident Report by establishments with 100 or more employees in designated industries.

$6,900,030 ........................................................ $0 

One-Time Rule Familiarization Cost ................. NA ..................................................................... 532,257 

Annualized 10 yr at 7% .............................. 75,781 ............................................................... NA 

Annualized 10 yr at 3% .............................. 62,397 ............................................................... NA 

One-Time Software Upgrade ............................ NA ..................................................................... 859,042 

Annualized 10 yr at 7% .............................. 122,308 ............................................................. NA 

Annualized 10 yr at 3% .............................. 100,706 ............................................................. NA 

Total Private Sector Costs * ** ............. 7,098,120 .......................................................... 1,391,299 

Average Cost per 52,092 Establishments ......... 136 .................................................................... NA 

Processing of annual electronic submissions of 

OSHA 300/301.

128,360 ............................................................. 0 

Annual Contractor Software Support ................ 50,000 ............................................................... 0 

Annual Government Software Support ............. 204,485 ............................................................. 0 

One-Time Software Design and Development NA ..................................................................... 1,200,000 

Annualized 10 yr at 7% .............................. 170,853 ............................................................. NA 

Annualized 10 yr at 3% .............................. 140,677 ............................................................. NA 

Total Government Costs * ** ................ 553,698 ............................................................. 1,200,000 

Total * .................................................. 7,651,818 .......................................................... 2,591,299 

* One-time costs are annualized and appear in annual cost column; the one-time cost is not an additional cost. 

** Annualized over 10 years at 7%. 

G. Benefits 

As explained in the PEA and 

elaborated on elsewhere in this 

preamble, in particular in Section III.B 

of the Summary and Explanation, the 

main purpose of the final rule is to 

prevent worker injuries and illnesses 

through the collection and use of timely, 

establishment- and case-specific injury 

and illness data. With the information 

obtained through this rule, OSHA, 

employers, employees, employee 

representatives, State and local 

agencies, consultants, and researchers 

will be better able to identify and 

mitigate workplace hazards and thereby 

prevent worker injuries and illnesses. 

The final rule will support OSHA’s 

statutory directive to assure safe and 

healthful working conditions for 

working people by providing for 

appropriate reporting procedures 

regarding occupational safety and health 

that will help achieve the objectives of 

the OSH Act (29 U.S.C. 651(b); (b)(12)). 

The number of workers in the U.S. 

who are injured or made ill on the job 

remains unacceptably high, and the 

importance of this final rule lies largely 

in increasing access to information to 

better enable OSHA and other 

organizations to prevent workplace 

injuries and illnesses. According to 

BLS’s Survey of Occupational Injuries 

and Illnesses (SOII), in 2021, employees 

experienced 2.6 million recordable 

nonfatal injuries and illnesses at work.57

This number is widely recognized to be 

an undercount of the actual number of 

occupational injuries and illnesses that 

occur annually.58 As described 

extensively above in Section III.B of the 

Summary and Explanation, the final 

rule will increase the agency’s ability to 

focus resources on those workplaces 

where workers are at greatest risk. Even 

with improved targeting, OSHA 

Compliance Safety and Health Officers 

can inspect only a small proportion of 

the nation’s workplaces each year, and 

it would take many decades to inspect 

each covered workplace in the nation 

even once. As a result, to reduce worker 

injuries and illnesses, it is of great 

importance for OSHA to leverage its 

resources for workplace safety at the 

many thousands of establishments in 

which workers are being injured or 

made ill but which OSHA does not have 

the resources to inspect. 

As discussed in more detail in Section 

III, Summary and Explanation, the final 

rule will help OSHA prevent worker 

injuries and illnesses by greatly 

expanding OSHA’s access to the 

establishment-specific, case-specific 

information employers are already 

required to record under part 1904. The 


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59Note that the agency did not propose quarterly 

reporting; the proposed rule envisioned annual 

reporting, and the final rule similarly will require 

annual reporting. 

60For the difference between a standard and a 

regulation, please see the discussion in Section II, 

Legal Authority. 

61The portion of the rule that addresses the 

submission of Form 300A information does affect 

smaller entities, as establishments with 20 or more 

employees are required to electronically submit 

Form 300A information. However, because this 

final rule makes no substantive changes to that 

submission requirement, which was enacted as part 

of the 2016 final rule, there are no new costs for 

entities with fewer than 100 employees. 

provisions requiring regular electronic 

submission of case-specific injury and 

illness data will allow OSHA to obtain 

a much larger data set of establishmentspecific, case-specific information about 

injuries and illnesses in the workplace. 

This information will help OSHA use its 

enforcement and compliance assistance 

resources more effectively by enabling 

OSHA to identify the workplaces where 

workers are at greatest risk. In addition, 

OSHA will be able to use the 

information to identify emerging 

hazards, support an agency response, 

and reach out to employers whose 

workplaces might include those 

hazards. 

In addition to OSHA obtaining better 

information, this information will be 

available to employers, employees, 

members of the public, employee 

representatives, trade associations, and 

workplace safety and health 

professionals, among others. This 

increased access and transparency of 

information about workplace injuries 

and illnesses can be used by all 

interested parties to better understand 

workplace hazards and improve 

occupational safety and health. OSHA 

also expects the information to improve 

research on the occurrence and 

prevention of workplace hazards, 

injuries, and illnesses. 

In response to the PEA, the National 

Propane Gas Association and the 

Chamber of Commerce said that OSHA 

should quantify benefits for the rule 

(Docket IDs 0050, 0088, Attachments). 

The National Propane Gas Association 

stated that OSHA ‘‘does not provide any 

details as to how publicly available 

information could improve workplace 

safety’’ and argued that OSHA should 

‘‘provide concrete benchmarks to define 

the safety improvements that the agency 

expects to be met by publicly accessible 

case-specific, establishment-specific 

information’’ (Docket ID 0050). The 

Chamber of Commerce said that OSHA 

‘‘makes no attempt to estimate or 

quantify the purported economic 

benefits of this Proposed Rule; instead, 

it asserts that these benefits will 

‘significantly exceed the annual costs,’ ’’ 

going on to say that OSHA did not 

‘‘explain how electronic quarterly 

reporting or the creation of a public 

database that will publish the private 

and confidential information of 

employers and employees will provide 

any increase in workplace safety’’ 

(Docket ID 0088).59

The agency respectfully disagrees 

about quantifying the economic 

benefits. Quantifying benefits is not 

always feasible in practice. However, 

the infeasibility of quantifying benefits 

does not demonstrate a lack of benefits. 

In contrast to the occupational safety 

and health standards the agency 

promulgates, quantifying benefits for a 

recordkeeping regulation is particularly 

challenging.60 OSHA notes that the 

commenters did not attempt to 

themselves quantify the benefits of the 

proposed rule, nor did commenters 

propose any approach that would allow 

the agency to effectively quantify those 

benefits in order to compare them 

against the costs. 

H. Economic Feasibility 

In the PEA, OSHA preliminarily 

concluded that the proposed rule would 

be economically feasible and received 

no comment specifically on this 

conclusion. After further consideration, 

OSHA has concluded that the final rule 

will be economically feasible. Under the 

final rule, for establishments with 100 

or more employees in the industries 

designated in appendix B, the average 

additional cost of electronically 

submitting information from the OSHA 

Forms 300 and 301 will be roughly $136 

per year. These costs will not affect the 

economic viability of these 

establishments. 

I. Regulatory Flexibility Certification 

The requirement in the final rule 

requiring the electronic submission of 

Form 300 and 301 information from 

establishments with 100 or more 

employees in designated industries will 

affect some small entities, as determined 

by the definitions of small entity used 

by the Small Business Administration 

(SBA). In some sectors, such as 

construction, where SBA’s definition 

only includes relatively smaller firms, 

there are unlikely to be many entities 

with establishments with 100 or more 

employees that meet SBA small entity 

definitions. In other sectors, such as 

manufacturing, many SBA-defined 

small entities will be subject to this rule. 

Thus, this part of the final rule will 

affect only a small percentage of all 

SBA-defined small entities.61 However, 

because some SBA-defined small 

entities will be affected, especially in 

manufacturing, OSHA has examined the 

impacts of this final rule on small 

businesses. 

OSHA did not convene a Small 

Business Advocacy Review panel under 

the Small Business Regulatory 

Enforcement Fairness Act of 1996 

(SBREFA Panel) for this rule. At least 

one commenter, the Chamber of 

Commerce, argued that OSHA should 

have convened a SBREFA Panel to 

further evaluate the effect of the 

proposed rule on small businesses 

(Docket ID 0088). The commenter said 

that the panel was particularly 

important because ‘‘the vast majority of 

employers and establishments that will 

be affected by this Proposed Rule’s 

electronic-only reporting requirements 

will be small businesses, many of which 

do not currently record injuries 

electronically.’’ This commenter offered 

no evidence to support its assertion that 

the majority of the employers and 

establishments affected would be small 

businesses, nor did it offer evidence that 

small businesses do not currently record 

injuries electronically. 

OSHA considers the possibility of 

disproportionate impacts on small 

businesses when deciding whether a 

Small Business Advocacy Review 

(SBAR) panel is warranted. Because 

OSHA preliminarily determined that the 

proposed rule would not result in a 

significant impact on a substantial 

number of small businesses (see 87 FR 

18553), OSHA determined that a 

SBREFA panel was not required for this 

rule. Nothing in the record has 

disturbed OSHA’s preliminary 

determination that this rule will not 

have a significant impact on a 

substantial number of small businesses. 

Therefore, OSHA does not believe a 

SBREFA panel was required for this 

rule. 

OSHA’s typical procedure for 

assessing the significance of final rules 

on small businesses is to first determine 

if costs are greater than one percent of 

revenues or five percent of profits for 

the average firm. If so, OSHA conducts 

an additional assessment. To meet this 

level of significance at an estimated 

annual average cost of $136 per affected 

establishment per year (including 

annualized familiarization costs), 

annual revenues for an establishment 

with 100 or more employees would 

have to be less than $13,627 (or less 

than $136 per employee, assuming 100 

employees), and annual profits would 

have to be less than $2,725 (or less than 

$28 per employee, assuming 100 

employees). There are no impacted 

industries that have average revenues of 


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62The average revenue numbers were obtained 

from the 2017 Economic Census. This is the most 

current information available from this source, 

which OSHA considers to be the best available 

source of revenue data for U.S. businesses. OSHA 

adjusted these figures to 2019 dollars using the 

Bureau of Economic Analysis’s GDP deflator, which 

is OSHA’s standard source for inflation and 

deflation analysis. These average revenue figures 

would include any non-profits falling within the 

affected industries. 

63Profits were calculated as profit rates 

multiplied by revenues. The before-tax profit rates 

that OSHA used were estimated using corporate 

balance sheet data from the 2013 Corporation 

Source Book (Internal Revenue Service, 2013; 

https://www.irs.gov/statistics/soi-tax-statscorporation-source-book-publication-1053). The IRS 

discontinued the publication of these data after 

2013, and therefore the most current years available 

are 2000–2013. The most recent version of the 

Source Book represents the best available evidence 

for these data on profit rates. 

64While descriptive of most establishments in 

these industries, this figure would significantly 

underestimate the profits of the average affected 

establishment covered by this rule, which only 

affects those with 100 or more employees. 

65The lowest potential threshold of impact (for 

profits) is $2,725 per establishment. The agency 

estimates an average cost per establishment of $136. 

It would need to be approximately 20 times higher 

to reach this threshold. 

less than $13,627.62 Furthermore, 

integrating those data with profit data 

from the 2013 Corporation Source 

Book 63 indicates there are no impacted 

industries earning less than $2,725 in 

profit per establishment among 

establishments with 5 or more 

employees.64 These are extremely 

unlikely combinations of revenues and 

profits for firms of this size and would 

only occur for a very small number of 

firms in severe financial distress. As 

indicated, OSHA’s cost estimates would 

have to be in error by more than an 

order of magnitude to reach these 

thresholds.65

As a result of these considerations, 

per Section 605 of the Regulatory 

Flexibility Act (5 U.S.C. 605), OSHA 

certifies that the final rule will not have 

a significant economic impact on a 

substantial number of small entities. 

Thus, OSHA has not prepared a final 

regulatory flexibility analysis. 

V. OMB Review Under the Paperwork 

Reduction Act of 1995 

A. Overview 

The final ‘‘Improve Tracking 

Workplace Injury and Illness’’ rule 

contains information collection 

(paperwork) requirements that are 

subject to review by the Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act of 1995 

(PRA), 44 U.S.C. 3501 et seq., and OMB 

regulations, 5 CFR part 1320. 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). 

The aforementioned regulations 

mandate that the Department consider 

the impact of paperwork and other 

information collection burdens imposed 

on the public. Under the PRA, a Federal 

agency generally cannot conduct or 

sponsor a collection of information and 

the public will generally not be 

penalized for not responding to an 

information collection, unless it is 

approved by OMB and the agency 

displays a currently valid OMB Control 

Number. See 44 U.S.C. 3507 and 3512, 

5 CFR 1320.5(a) and 1320.6. 

On March 30, 2022, OSHA published 

a notice of proposed rulemaking 

(NPRM) (87 FR 18528) to amend its 

occupational injury and illness 

recordkeeping regulation to require 

establishments with 100 or more 

employees in certain designated 

industries to be able to electronically 

submit information from their OSHA 

Forms 300, 301, and 300A once a year. 

OSHA prepared and submitted an 

Information Collection Request (ICR) to 

OMB, proposing to revise certain 

collection requirements currently 

contained in the package, as required 

under 44 U.S.C. 3507(d). The proposed 

rule invited the public to submit 

comments to OMB, in addition to 

OSHA, on the proposed collections of 

information. On May 25, 2022, OSHA 

published a second Federal Register 

notice (87 FR 31793), extending the 

comment period to allow the public an 

additional 30 days to comment on the 

proposed rule and the information 

collection requirements contained in the 

proposed rule. OSHA received 87 public 

comments. 

In accordance with the PRA (44 

U.S.C. 3506(c)(2)), OSHA solicited 

public comments on the collection of 

information contained in the 2022 

proposed rule. OSHA encouraged 

commenters to submit their comments 

on the information collection 

requirements contained in the proposed 

rule under docket number OSHA–2021– 

0006, along with their comments on 

other parts of the proposed rule. In 

addition to generally soliciting 

comments on the collection of 

information requirements, the proposed 

rule indicated that OSHA and OMB 

were particularly interested in 

comments that addressed the following: 

• Whether the collection of 

information is necessary for the proper 

performance of the agency’s functions, 

including whether the information is 

useful; 

• The accuracy of OSHA’s estimate of 

the burden (time and cost) of the 

collection of information, including the 

validity of the methodology and 

assumptions used; 

• The quality, utility, and clarity of 

the information collected; and 

• Ways to minimize the compliance 

burden on employers, for example, by 

using automated or other technological 

techniques for collecting and 

transmitting information. 

On May 5, 2022, OMB issued a Notice 

of Action (NOA) assigning the 

proposal’s ICR a new control number, 

1218–0279, to be used in future ICR 

submissions. OMB noted that this action 

had no effect on any current approvals. 

OMB also noted that the NOA is not an 

approval to conduct or sponsor the 

information collection contained in the 

revision proposal. Finally, OMB 

requested that, ‘‘[p]rior to publication of 

the final rule, [OSHA] should provide a 

summary of any comments related to 

the information collection and their 

response, including any changes made 

to the ICR as a result of comments. In 

addition, the agency must enter the 

correct burden estimates.’’ OSHA did 

not receive any comments in response 

to the proposed ICR submitted to OMB 

for review. However, the agency did 

receive 87 comments related to the 

proposed rule. 

Concurrent with publication of this 

final rule, the Department of Labor 

submitted the final ICR, containing the 

full analysis and description of the 

burden hours and costs associated with 

the final rule, to OMB for approval. A 

copy of this ICR is available at http://

www.reginfo.gov/public/do/ 

PRAOMBHistory?ombControl

Number=1218-0279 (this link will 

become active on the day following 

publication of the final rule). OSHA will 

publish a separate notice in the Federal 

Register that will announce the results 

of that review. This notice will also 

include a list of OMB-approved 

information collection requirements and 

total burden hours and costs imposed by 

the new regulation. 

B. Summary of Information Collection 

Requirements 

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: Improve Tracking Workplace 

Injury and Illness. 

2. Description of the ICR: This final 

rule revises the currently approved 

Recordkeeping and Reporting 

Occupational Injuries and Illnesses 

Information Collection and changes the 

existing information collection 

requirements currently approved by 

OMB. 


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3. Brief Summary of the Information 

Collection Requirements. 

Under ‘‘Information Requirements on 

Recordkeeping and Reporting 

Occupational Injuries and Illnesses,’’ 

OMB Control Number 1218–0176, 

OSHA currently has OMB approval to 

conduct an information collection that 

requires covered employers to, among 

other things, record each recordable 

employee injury and illness on an 

OSHA Form 300, which is the ‘‘Log of 

Work-Related Injuries and Illnesses,’’ or 

equivalent. In addition, employers must 

also prepare a supplementary OSHA 

Form 301 ‘‘Injury and Illness Incident 

Report’’ or equivalent that provides 

additional details about each case 

recorded on the OSHA Form 300, and, 

at the end of each year, employers are 

required to prepare a summary report of 

all injuries and illnesses on the OSHA 

Form 300A, which is the ‘‘Summary of 

Work-Related Injuries and Illnesses,’’ 

and post the form in a visible location 

in the workplace. 

Under 29 CFR 1904.41, certain 

employers were only required to 

electronically submit injury and illness 

information from their OSHA Forms 

300A (the summary) annually. OSHA 

did not receive establishment-specific, 

case-specific, injury and illness data. 

For the purposes of the PRA, the final 

rule makes two changes to § 1904.41. 

First, OSHA newly requires all 

establishments that have 100 or more 

employees and are in certain designated 

industries to electronically submit 

information from the OSHA Form 300 

and 301 to OSHA or OSHA’s designee. 

This is in addition to the current 

requirement for these establishments to 

electronically submit information from 

the OSHA Form 300A. Each 

establishment subject to this provision 

will require time to familiarize 

themselves with the reporting website. 

This change is similar to requirements 

contained in OSHA’s Improve Tracking 

of Workplace Injuries and Illnesses final 

rule, 81 FR 29624 (May 12, 2016) which 

were removed by the Tracking of 

Workplace Injuries and Illnesses final 

rule, 84 FR 380 (January 25, 2019). 

Second, OSHA newly requires 

establishments that are required to 

electronically report information from 

their injury and illness records to OSHA 

under part 1904, to include their 

company name as part of the 

submission. No additional paperwork 

burden is associated with the provision. 

In addition, Docket exhibit OSHA– 

2021–006–0004 shows an example of an 

expanded interface to collect casespecific data. Screenshots of this 

interface can also be viewed on OSHA’s 

website at http://www.osha.gov/ 

recordkeeping/proposed_data_

form.html. 

4. OMB Control Number: 1218–0279 . 

5. Affected Public: Business or other 

for-profit. 

6. Total Estimated Number of 

Respondents: 52,092. 

7. Frequency of Responses: Annually. 

8. Total Estimated Number of 

Responses: 475,943. 

9. Average Time per Response: 

Average time per response varies from 

10 minutes for establishments using 

batch file submission to 237 minutes for 

establishments using manual 

submission. 

10. Total Estimated Annualized 

Burden Hours): 118,485. 

11. Total Estimated Costs (CapitalOperation and Maintenance): 0. 

VI. Unfunded Mandates 

OSHA reviewed this final rule 

according to the Unfunded Mandates 

Reform Act of 1995 (UMRA) (2 U.S.C. 

1501 et seq.), as well as Executive Order 

13132 (64 FR 43255 (Aug. 4, 1999)). As 

discussed above in Section IV, Final 

Economic Analysis, the agency has 

determined that this final 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 $100 million or more in any 

one year. In addition, OSHA’s 

regulations do not apply to State and 

local governments except in States that 

have elected voluntarily to adopt a State 

Plan approved by OSHA. Consequently, 

this final rule does not meet the 

definition of a ‘‘federal 

intergovernmental mandate’’ (see 2 

U.S.C. 1502, 658(5)). Therefore, for the 

purposes of the UMRA, the agency 

certifies that this final rule does not 

mandate that State, local, or Tribal 

governments adopt new, unfunded 

regulatory obligations of, or increase 

expenditures by the private sector by, 

$100 million or more in any year. 

VII. Federalism 

OSHA reviewed this final rule in 

accordance with Executive Order 13132 

(64 FR 43255 (Aug. 4, 1999)), regarding 

federalism. E.O. 13132 requires that 

Federal agencies, to the extent possible, 

refrain from limiting State policy 

options, consult with States before 

taking actions that would restrict States’ 

policy options, and take such actions 

only when clear constitutional authority 

exists and the problem is of national 

scope. 

Section 18(a) of the OSH Act states 

that nothing in the Act shall prevent any 

State agency or court from asserting 

jurisdiction under State law over an 

occupational safety or health issue with 

respect to which no standard is in effect 

under Section 6 of the Act (29 U.S.C. 

667(a)). Because this rulemaking 

involves a ‘‘regulation’’ issued under 

Sections 8 and 24 of the OSH Act (29 

U.S.C. 657, 673), and not an 

‘‘occupational safety and health 

standard’’ issued under Section 6 of the 

OSH Act (29 U.S.C. 655), the rule will 

not preempt State law under Section 

18(a) (see 29 U.S.C. 667(a)). The effect 

of the final rule on States and territories 

with OSHA-approved occupational 

safety and health State Plans is 

discussed in Section VIII, State Plans. 

VIII. State Plans 

Pursuant to Section 18 of the OSH Act 

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

29 CFR 1904.37, 1902.3(j), 1902.7, 

1953.4(b), and 1956.10(i), within 6 

months after publication of the final 

OSHA rule, State Plans must 

promulgate occupational injury and 

illness recording and reporting 

requirements that are substantially 

identical to those in 29 CFR part 1904. 

State Plans must have the same 

requirements as Federal OSHA for 

determining which injuries and 

illnesses are recordable and how they 

are recorded (29 CFR 1904.37(b)(1)). All 

other part 1904 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 Plans 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)). 

There are 29 State Plans. The States 

and territories that cover both private 

sector and public 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, 

Massachusetts, New Jersey, New York, 

and the Virgin Islands have OSHAapproved State Plans that apply to State 

and local government employees only. 

IX. National Environmental Policy Act 

OSHA has reviewed the provisions of 

this final rule in accordance with the 

requirements of the National 


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Environmental Policy Act (NEPA) of 

1969 (42 U.S.C. 4321 et seq.), the 

Council on Environmental Quality 

(CEQ) NEPA regulations (40 CFR parts 

1500–1508), and the Department of 

Labor’s NEPA Procedures (29 CFR part 

11). As a result of this review, OSHA 

has determined that the final rule will 

have no significant adverse effect on air, 

water, or soil quality, plant or animal 

life, use of land, or other aspects of the 

environment. 

X. Consultation and Coordination With 

Indian Tribal Governments 

OSHA reviewed this final rule in 

accordance with Executive Order 13175 

(65 FR 67249 (Nov. 9, 2000)) and 

determined that it does not have ‘‘tribal 

implications’’ as defined in that order. 

The rule does not have substantial 

direct effects on one or more Indian 

Tribes, on the relationship between the 

Federal Government and Indian Tribes, 

or on the distribution of power and 

responsibilities between the Federal 

Government and Indian Tribes. 

List of Subjects in 29 CFR Part 1904 

Health statistics, Occupational safety 

and health, Reporting and 

recordkeeping requirements. 

Authority and Signature 

This document was prepared under 

the direction of Douglas L. Parker, 

Assistant Secretary of Labor for 

Occupational Safety and Health, U.S. 

Department of Labor, 200 Constitution 

Avenue NW, Washington, DC 20210. It 

is issued under Sections 8 and 24 of the 

Occupational Safety and Health Act (29 

U.S.C. 657, 673), Section 553 of the 

Administrative Procedure Act (5 U.S.C. 

553), and Secretary of Labor’s Order No. 

8–2020 (85 FR 58393 (Sept. 18, 2020)). 

Signed at Washington, DC, on July 12, 

2023. 

Douglas L. Parker, 

Assistant Secretary of Labor for Occupational 

Safety and Health. 

For the reasons stated in the 

preamble, OSHA amends 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 part 1904, 

subpart E, is revised to read as follows: 

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

553, and Secretary of Labor’s Order No. 08– 

2020 (85 FR 58393, Sept. 18, 2020) or 1–2012 

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

■ 2. Amend § 1904.41 as follows: 

■ a. Revise paragraphs (a)(1) and (2) and 

(b)(1); 

■ b. Add paragraphs (b)(9) and (10); and 

■ c. Revise paragraph (c). 

The revisions and additions 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 

information from OSHA Form 300A 

Summary of Work-Related Injuries and 

Illnesses. (i) If your establishment had 

20–249 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 

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. 

(ii) 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 Work-Related 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. 

(2) Annual electronic submission of 

information from OSHA Form 300 Log 

of Work-Related Injuries and Illnesses 

and OSHA Form 301 Injury and Illness 

Incident Report by establishments with 

100 or more employees in designated 

industries. If your establishment had 

100 or more employees at any time 

during the previous calendar year, and 

your establishment is classified in an 

industry listed in appendix B to subpart 

E of this part, then you must 

electronically submit information from 

OSHA Forms 300 and 301 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 forms. 

* * * * * 

(b) * * * 

(1) Does every employer have to 

routinely make an annual electronic 

submission of information from part 

1904 injury and illness recordkeeping 

forms to OSHA? No, only three 

categories of employers must routinely 

submit information from these forms. 

The first category is establishments that 

had 20–249 employees at any time 

during the previous calendar year, and 

are classified in an industry listed in 

appendix A to this subpart; 

establishments in this category must 

submit the required information from 

Form 300A to OSHA once a year. The 

second category is establishments that 

had 250 or more employees at any time 

during the previous calendar year, and 

are required by this part to keep records; 

establishments in this category must 

submit the required information from 

Form 300A to OSHA once a year. The 

third category is establishments that had 

100 or more employees at any time 

during the previous calendar year, and 

are classified in an industry listed in 

appendix B to this subpart; 

establishments in this category must 

also submit the required information 

from Forms 300 and 301 to OSHA once 

a year, in addition to the required 

information from Form 300A. 

Employers in these three 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, 

2024 for the 2023 form(s)). If your 

establishment is not in any of these 

three categories, then you must submit 

the information to OSHA only if OSHA 

notifies you to do so for an individual 

data collection. 

* * * * * 

(9) If I have to submit information 

under paragraph (a)(2) of this section, 

do I have to submit all of the 

information from the recordkeeping 

forms? No, you are required to submit 

all of the information from the forms 

except the following: 

(i) Log of Work-Related Injuries and 

Illnesses (OSHA Form 300): Employee 

name (column B). 

(ii) Injury and Illness Incident Report 

(OSHA Form 301): Employee name 

(field 1), employee address (field 2), 

name of physician or other health care 

professional (field 6), facility name and 

address if treatment was given away 

from the worksite (field 7). 

(10) My company uses numbers or 

codes to identify our establishments. 

May I use numbers or codes as the 

establishment name in my submission? 

Yes, you may use numbers or codes as 

the establishment name. However, the 

submission must include a legal 

company name, either as part of the 

establishment name or separately as the 

company name. 

(c) Reporting dates. Establishments 

that are required to submit under 

paragraph (a)(1) or (2) of this section 


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Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations 47347 

must submit all of the required 

information by March 2 of the year after 

the calendar year covered by the form(s) 

(for example, by March 2, 2024, for the 

forms covering 2023). 

* * * * * 

■ 3. Revise appendix A to subpart E to 

read as follows: 

Appendix A to Subpart E of Part 1904— 

Designated Industries for 

§ 1904.41(a)(1)(i) Annual Electronic 

Submission of Information From OSHA 

Form 300A Summary of Work-Related 

Injuries and Illnesses by Establishments 

With 20–249 Employees in Designated 

Industries 

NAICS Industry 

11 ........................... Agriculture, Forestry, Fishing and Hunting. 

22 ........................... Utilities. 

23 ........................... Construction. 

31–33 ..................... Manufacturing. 

42 ........................... Wholesale Trade. 

4413 ....................... Automotive Parts, Accessories, and Tire Stores. 

4421 ....................... Furniture Stores. 

4422 ....................... Home Furnishings Stores. 

4441 ....................... Building Material and Supplies Dealers. 

4442 ....................... Lawn and Garden Equipment and Supplies Stores. 

4451 ....................... Grocery Stores. 

4452 ....................... Specialty Food Stores. 

4522 ....................... Department Stores. 

4523 ....................... General Merchandise Stores, including Warehouse Clubs and Supercenters. 

4533 ....................... Used Merchandise Stores. 

4542 ....................... Vending Machine Operators. 

4543 ....................... Direct Selling Establishments. 

4811 ....................... Scheduled Air Transportation. 

4841 ....................... General Freight Trucking. 

4842 ....................... Specialized Freight Trucking. 

4851 ....................... Urban Transit Systems. 

4852 ....................... Interurban and Rural Bus Transportation. 

4853 ....................... Taxi and Limousine Service. 

4854 ....................... School and Employee Bus Transportation. 

4855 ....................... Charter Bus Industry. 

4859 ....................... Other Transit and Ground Passenger Transportation. 

4871 ....................... Scenic and Sightseeing Transportation, Land. 

4881 ....................... Support Activities for Air Transportation. 

4882 ....................... Support Activities for Rail Transportation. 

4883 ....................... Support Activities for Water Transportation. 

4884 ....................... Support Activities for Road Transportation. 

4889 ....................... Other Support Activities for Transportation. 

4911 ....................... Postal Service. 

4921 ....................... Couriers and Express Delivery Services. 

4922 ....................... Local Messengers and Local Delivery. 

4931 ....................... Warehousing and Storage. 

5152 ....................... Cable and Other Subscription Programming. 

5311 ....................... Lessors of Real Estate. 

5321 ....................... Automotive Equipment Rental and Leasing. 

5322 ....................... Consumer Goods Rental. 

5323 ....................... General Rental Centers. 

5617 ....................... Services to Buildings and Dwellings. 

5621 ....................... Waste Collection. 

5622 ....................... Waste Treatment and Disposal. 

5629 ....................... Remediation and Other Waste Management Services. 

6219 ....................... Other Ambulatory Health Care Services. 

6221 ....................... General Medical and Surgical Hospitals. 

6222 ....................... Psychiatric and Substance Abuse Hospitals. 

6223 ....................... Specialty (except Psychiatric and Substance Abuse) Hospitals. 

6231 ....................... Nursing Care Facilities (Skilled Nursing Facilities). 

6232 ....................... Residential Intellectual and Developmental Disability, Mental Health, and Substance Abuse Facilities. 

6233 ....................... Continuing Care Retirement Communities and Assisted Living Facilities for the Elderly 

6239 ....................... Other Residential Care Facilities. 

6242 ....................... Community Food and Housing, and Emergency and Other Relief Services. 

6243 ....................... Vocational Rehabilitation Services. 

7111 ....................... Performing Arts Companies. 

7112 ....................... Spectator Sports. 

7121 ....................... Museums, Historical Sites, and Similar Institutions. 

7131 ....................... Amusement Parks and Arcades. 

7132 ....................... Gambling Industries. 

7211 ....................... Traveler Accommodation. 

7212 ....................... RV (Recreational Vehicle) Parks and Recreational Camps. 

7223 ....................... Special Food Services. 

8113 ....................... Commercial and Industrial Machinery and Equipment (except Automotive and Electronic) Repair and Maintenance. 


ddrumheller on DSK120RN23PROD with RULES2
47348 Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations 

NAICS Industry 

8123 ....................... Drycleaning and Laundry Services. 

■ 4. Add appendix B to subpart E to 

read as follows: 

Appendix B to Subpart E of Part 1904— 

Designated Industries for 

§ 1904.41(a)(2) Annual Electronic 

Submission of Information From OSHA 

Form 300 Log of Work-Related Injuries 

and Illnesses and OSHA Form 301 

Injury and Illness Incident Report by 

Establishments With 100 or More 

Employees in Designated Industries 

NAICS Industry 

1111 ....................... Oilseed and Grain Farming. 

1112 ....................... Vegetable and Melon Farming. 

1113 ....................... Fruit and Tree Nut Farming. 

1114 ....................... Greenhouse, Nursery, and Floriculture Production. 

1119 ....................... Other Crop Farming. 

1121 ....................... Cattle Ranching and Farming. 

1122 ....................... Hog and Pig Farming. 

1123 ....................... Poultry and Egg Production. 

1129 ....................... Other Animal Production. 

1133 ....................... Logging. 

1141 ....................... Fishing. 

1142 ....................... Hunting and Trapping. 

1151 ....................... Support Activities for Crop Production. 

1152 ....................... Support Activities for Animal Production. 

1153 ....................... Support Activities for Forestry. 

2213 ....................... Water, Sewage and Other Systems. 

2381 ....................... Foundation, Structure, and Building Exterior Contractors. 

3111 ....................... Animal Food Manufacturing. 

3113 ....................... Sugar and Confectionery Product Manufacturing. 

3114 ....................... Fruit and Vegetable Preserving and Specialty Food Manufacturing. 

3115 ....................... Dairy Product Manufacturing. 

3116 ....................... Animal Slaughtering and Processing. 

3117 ....................... Seafood Product Preparation and Packaging. 

3118 ....................... Bakeries and Tortilla Manufacturing. 

3119 ....................... Other Food Manufacturing. 

3121 ....................... Beverage Manufacturing. 

3161 ....................... Leather and Hide Tanning and Finishing. 

3162 ....................... Footwear Manufacturing. 

3211 ....................... Sawmills and Wood Preservation. 

3212 ....................... Veneer, Plywood, and Engineered Wood Product Manufacturing. 

3219 ....................... Other Wood Product Manufacturing. 

3261 ....................... Plastics Product Manufacturing. 

3262 ....................... Rubber Product Manufacturing. 

3271 ....................... Clay Product and Refractory Manufacturing. 

3272 ....................... Glass and Glass Product Manufacturing. 

3273 ....................... Cement and Concrete Product Manufacturing. 

3279 ....................... Other Nonmetallic Mineral Product Manufacturing. 

3312 ....................... Steel Product Manufacturing from Purchased Steel. 

3314 ....................... Nonferrous Metal (except Aluminum) Production and Processing. 

3315 ....................... Foundries. 

3321 ....................... Forging and Stamping. 

3323 ....................... Architectural and Structural Metals Manufacturing. 

3324 ....................... Boiler, Tank, and Shipping Container Manufacturing. 

3325 ....................... Hardware Manufacturing. 

3326 ....................... Spring and Wire Product Manufacturing. 

3327 ....................... Machine Shops; Turned Product; and Screw, Nut, and Bolt Manufacturing. 

3328 ....................... Coating, Engraving, Heat Treating, and Allied Activities. 

3331 ....................... Agriculture, Construction, and Mining Machinery Manufacturing. 

3335 ....................... Metalworking Machinery Manufacturing. 

3361 ....................... Motor Vehicle Manufacturing. 

3362 ....................... Motor Vehicle Body and Trailer Manufacturing. 

3363 ....................... Motor Vehicle Parts Manufacturing. 

3366 ....................... Ship and Boat Building. 

3371 ....................... Household and Institutional Furniture and Kitchen Cabinet Manufacturing. 

3372 ....................... Office Furniture (including Fixtures) Manufacturing. 

3379 ....................... Other Furniture Related Product Manufacturing. 

4231 ....................... Motor Vehicle and Motor Vehicle Parts and Supplies Merchant Wholesalers. 


ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Rules and Regulations 47349 

NAICS Industry 

4233 ....................... Lumber and Other Construction Materials Merchant Wholesalers. 

4235 ....................... Metal and Mineral (except Petroleum) Merchant Wholesalers. 

4239 ....................... Miscellaneous Durable Goods Merchant Wholesalers. 

4244 ....................... Grocery and Related Product Merchant Wholesalers. 

4248 ....................... Beer, Wine, and Distilled Alcoholic Beverage Merchant Wholesalers. 

4413 ....................... Automotive Parts, Accessories, and Tire Stores. 

4422 ....................... Home Furnishings Stores. 

4441 ....................... Building Material and Supplies Dealers. 

4442 ....................... Lawn and Garden Equipment and Supplies Stores. 

4451 ....................... Grocery Stores. 

4522 ....................... Department Stores. 

4523 ....................... General Merchandise Stores, including Warehouse Clubs and Supercenters. 

4533 ....................... Used Merchandise Stores. 

4543 ....................... Direct Selling Establishments. 

4811 ....................... Scheduled Air Transportation. 

4841 ....................... General Freight Trucking. 

4842 ....................... Specialized Freight Trucking. 

4851 ....................... Urban Transit Systems. 

4852 ....................... Interurban and Rural Bus Transportation. 

4853 ....................... Taxi and Limousine Service. 

4854 ....................... School and Employee Bus Transportation. 

4859 ....................... Other Transit and Ground Passenger Transportation. 

4871 ....................... Scenic and Sightseeing Transportation, Land. 

4881 ....................... Support Activities for Air Transportation. 

4883 ....................... Support Activities for Water Transportation. 

4889 ....................... Other Support Activities for Transportation. 

4911 ....................... Postal Service. 

4921 ....................... Couriers and Express Delivery Services. 

4931 ....................... Warehousing and Storage. 

5322 ....................... Consumer Goods Rental. 

5621 ....................... Waste Collection. 

5622 ....................... Waste Treatment and Disposal. 

6219 ....................... Other Ambulatory Health Care Services. 

6221 ....................... General Medical and Surgical Hospitals. 

6222 ....................... Psychiatric and Substance Abuse Hospitals. 

6223 ....................... Specialty (except Psychiatric and Substance Abuse) Hospitals. 

6231 ....................... Nursing Care Facilities (Skilled Nursing Facilities). 

6232 ....................... Residential Intellectual and Developmental Disability, Mental Health, and Substance Abuse Facilities. 

6233 ....................... Continuing Care Retirement Communities and Assisted Living Facilities for the Elderly. 

6239 ....................... Other Residential Care Facilities. 

6243 ....................... Vocational Rehabilitation Services. 

7111 ....................... Performing Arts Companies. 

7112 ....................... Spectator Sports. 

7131 ....................... Amusement Parks and Arcades. 

7211 ....................... Traveler Accommodation. 

7212 ....................... RV (Recreational Vehicle) Parks and Recreational Camps. 

7223 ....................... Special Food Services. 

* * * * * 

[FR Doc. 2023–15091 Filed 7–17–23; 8:45 am] 

BILLING CODE 4510–26–P 


ddrumheller on DSK120RN23PROD with RULES2