[Federal Register Volume 78, Number 217 (Friday, November 8, 2013)]
[Proposed Rules]
[Pages 67253-67283]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-26711]



[[Page 67253]]

Vol. 78

Friday,

No. 217

November 8, 2013

Part III





Department of Labor





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Occupational Safety and Health Administration





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29 CFR Parts 1904 and 1952





Improve Tracking of Workplace Injuries and Illnesses; Proposed Rule

Federal Register / Vol. 78 , No. 217 / Friday, November 8, 2013 / 
Proposed Rules

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Parts 1904 and 1952

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


Improve Tracking of Workplace Injuries and Illnesses

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

ACTION: Proposed rule.

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SUMMARY: The purpose of this rulemaking is to improve workplace safety 
and health through the collection of useful, accessible, establishment-
specific injury and illness data to which OSHA currently does not have 
direct, timely, and systematic access. With the information acquired 
through this proposed rule, employers, employees, employee 
representatives, the government, and researchers will be better able to 
identify and abate workplace hazards. OSHA is proposing to amend its 
recordkeeping regulations to add requirements for the electronic 
submission of injury and illness information employers are already 
required to keep under OSHA's regulations for recording and reporting 
occupational injuries and illnesses. The proposed rule amends the 
regulation on the annual OSHA injury and illness survey of ten or more 
employers to add three new electronic reporting requirements. The 
proposed rule does not add to or change any employer's obligation to 
complete and retain injury and illness records under OSHA's regulations 
for recording and reporting occupational injuries and illnesses. The 
proposed rule also does not add to or change the recording criteria or 
definitions for these records. The proposed rule only modifies 
employers' obligations to transmit information from these records to 
OSHA or OSHA's designee.

DATES: Comments: Comments must be submitted by February 6, 2014.

ADDRESSES: Comments: You may submit comments, identified by docket 
number OSHA-2013-0023, or regulatory information number (RIN) 1218-
AC49, by any of the following methods:
    Electronically: You may submit comments electronically at http://www.regulations.gov, which is the federal e-rulemaking portal. Follow 
the instructions on the Web site for making electronic submissions;
    Fax: If your submission, including attachments, does not exceed 10 
pages, you may fax it to the OSHA docket office at (202) 693-1648;
    Mail, hand delivery, express mail, messenger, or courier service: 
You must submit three copies of your comments and attachments to the 
OSHA Docket Office, Docket Number OSHA-2013-0023, U.S. Department of 
Labor, Room N-2625, 200 Constitution Avenue NW., Washington, DC 20210; 
telephone (202) 693-2350 (OSHA's TTY number is (877) 889-5627). 
Deliveries (hand, express mail, messenger, and courier service) are 
accepted during the Department of Labor's and docket office's normal 
business hours, 8:15 a.m.-4:45 p.m.
    Instructions for submitting comments: All submissions must include 
the docket number (Docket No. OSHA-2013-0023) or the RIN (RIN 1218-
AC49) for this rulemaking. Because of security-related procedures, 
submission by regular mail may result in significant delay. Please 
contact the OSHA docket office for information about security 
procedures for making submissions by hand delivery, express delivery, 
and messenger or courier service.
    All comments, including any personal information you provide, are 
placed in the public docket without change and may be made available 
online at http://www.regulations.gov. Therefore, OSHA cautions you 
about submitting personal information such as Social Security numbers 
and birthdates.
    Docket: To read or download submissions in response to this Federal 
Register notice, go to docket number OSHA-2013-0023, at http://regulations.gov. All submissions are listed in the http://regulations.gov index. However, some information (e.g., copyrighted 
material) is not publicly available to read or download through that 
Web site. All submissions, including copyrighted material, are 
available for inspection and copying at the OSHA docket office.
    Electronic copies of this Federal Register document are available 
at http://www.regulations.gov. This document, as well as news releases 
and other relevant information, is available at OSHA's Web site at 
http://www.osha.gov.

FOR FURTHER INFORMATION CONTACT: For press inquiries: Frank Meilinger, 
OSHA Office of Communications, Room N-3647, U.S. Department of Labor, 
200 Constitution Avenue NW., Washington, DC 20210; telephone (202)-693-
1999; email: meilinger.francis2@dol.gov.
    For general and technical information on the proposed rule: Miriam 
Schoenbaum, OSHA Office of Statistical Analysis, Room N-3507, U.S. 
Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210; 
telephone (202) 693-1841; email: schoenbaum.miriam@dol.gov.

SUPPLEMENTARY INFORMATION: OSHA is proposing to amend its recordkeeping 
regulations to add requirements for the electronic submission of injury 
and illness information employers are already required to keep under 
OSHA's regulations for recording and reporting occupational injuries 
and illnesses. This proposed rule would amend the regulation on the 
annual OSHA injury and illness survey of ten or more employers to add 
three new electronic reporting requirements. First, OSHA will require 
establishments that are required to keep injury and illness records 
under OSHA's regulations for recording and reporting occupational 
injuries and illnesses, and that had 250 or more employees in the 
previous year, to electronically submit information from these records 
to OSHA or OSHA's designee on a quarterly basis. Second, OSHA will 
require establishments that are required to keep injury and illness 
records under OSHA's regulations for recording and reporting 
occupational injuries and illnesses, had 20 or more employees in the 
previous year, and are in certain designated industries to 
electronically submit the information from the OSHA annual summary form 
(Form 300A) to OSHA or OSHA's designee on an annual basis. The second 
submission requirement will replace OSHA's annual injury and illness 
survey, authorized by the current version of the regulation. Third, 
OSHA will require all employers who receive notification from OSHA to 
electronically submit specified information from their Part 1904 injury 
and illness records to OSHA or OSHA's designee.

Table of Contents

I. Legal Authority
II. Background
    a. Recordkeeping Rule
    b. Data Collections
    1. OSHA Data Initiative
    2. BLS Survey of Injuries and Illnesses
    c. OSHA Access to Establishment-Specific Injury and Illness 
Information
    d. Benefits of Electronic Data Collection
    e. Publication of Electronic Data
III. Stakeholder Meetings and Public Comments
IV. Summary and Explanation of the Proposed Rule
    a. Description of Proposed Revisions
    1. Sec.  1904.41(a)(1)--Quarterly Electronic Submission of Part 
1904 Records by Establishments With 250 or More Employees
    2. Sec.  1904.41(a)(2)--Annual Electronic Submission of OSHA 
Annual Summary Form (Form 300A) by Establishments

[[Page 67255]]

With 20 or More Employees in Designated Industries
    3. Sec.  1904.41(a)(3)--Electronic Submission of Part 1904 
Records Upon Notification
    4. Sec.  1904.41, Paragraphs (b)(1)-(b)(6)
    5. Sec.  1952.4(d)
    b. Issues, Alternatives, and Questions
    1. Issues
    2. Alternatives
    i. Alternative A--Monthly Submission Under Proposed Sec.  
1904.41(a)(1)
    ii. Alternative B--Annual Submission Under Proposed Sec.  
1904.41(a)(1)
    iii. Alternative C--One-Year Phase-in of Electronic Reporting 
Under Proposed Sec.  1904.41(a)(1)
    iv. Alternative D--Three-Year Phase-in of Electronic Reporting 
Under Proposed Sec.  1904.41(a)(2)
    v. Alternative E--Widen the Scope of Establishments Required to 
Report Under Proposed Sec.  1904.41(a)(1)
    vi. Alternative F--Narrow the Scope of Establishments Required 
to Report Under Proposed Sec.  1904.41(a)(1)
    vii. Alternative G--Three-Step Process of Implementing the 
Reporting Requirements Under Proposed Sec.  1904.41(a)(1) and (2)
    viii. Alternative H--Narrow the Scope of the Reporting 
Requirements Under Proposed Sec.  1904.41(a)(1) and (2)
    ix. Alternative I--Enterprise-Wide Submission
    3. Questions
V. Preliminary Economic Analysis and Regulatory Flexibility 
Certification
    a. Introduction
    b. Costs
    1. Sec.  1904.41(a)(1)--Quarterly Electronic Submission of Part 
1904 Records by Establishments With 250 or More Employees
    2. Sec.  1904.41(a)(2)--Annual Electronic Submission of OSHA 
Annual Summary Form (Form 300A) by Establishments With 20 or More 
Employees in Designated Industries
    3. Sec.  1904.41(a)(3)--Electronic Submission of Part 1904 
Records Upon Notification
    4. Budget Costs to the Government for the Creation of the 
Reporting System, Helpdesk Assistance, and Administration of the 
Electronic Submission Program
    5. Total Costs of the Rule
    c. Benefits
    d. Regulatory Alternatives
    1. Estimated Additional Costs for Alternative I--Enterprise-Wide 
Submission
    2. Benefits of Alternative I--Enterprise-Wide Submission
    e. Economic Feasibility
    f. Regulatory Flexibility Certification
VI. OMB Review Under the Paperwork Reduction Act of 1995
VII. Unfunded Mandates
VIII. Federalism
IX. State Plan States
X. Public Participation
    a. Public Submissions
    b. Access to Docket
Authority and Signature
Amendments to Standards

I. Legal Authority

    OSHA is issuing this proposed rule pursuant to authority expressly 
granted by sections 8 and 24 of the Occupational Safety and Health Act 
(the ``OSH Act'' or ``Act'') (29 U.S.C. 657, 673). Section 8(c)(1) 
requires each employer to ``make, keep and preserve, and make available 
to the Secretary [of Labor] or the Secretary of Health and Human 
Services, such records regarding his activities relating to this Act as 
the Secretary . . . may prescribe by regulation as necessary or 
appropriate for the enforcement of this Act or for developing 
information regarding the causes and prevention of occupational 
accidents and illnesses'' (29 U.S.C. 657(c)(1)). Section 8(c)(2) 
directs the Secretary to prescribe regulations ``requiring employers to 
maintain accurate records of, and to make periodic reports on, work-
related deaths, injuries and illnesses other than minor injuries 
requiring only first aid treatment and which do not involve medical 
treatment, loss of consciousness, restriction of work or motion, or 
transfer to another job'' (29 U.S.C. 657(c)(2)). Finally, section 
8(g)(2) of the OSH Act broadly empowers the Secretary to ``prescribe 
such rules and regulations as he may deem necessary to carry out [his] 
responsibilities under this Act'' (29 U.S.C. 657(g)(2)).
    Section 24 of the OSH Act (29 U.S.C. 673) contains a similar grant 
of authority. This section requires the Secretary to ``develop and 
maintain an effective program of collection, compilation, and analysis 
of occupational safety and health statistics'' and ``compile accurate 
statistics on work injuries and illnesses which shall include all 
disabling, serious, or significant injuries and illnesses . . .'' (29 
U.S.C. 673(a)). Section 24 also requires employers to ``file such 
reports with the Secretary as he shall prescribe by regulation'' (29 
U.S.C. 673(e)). These reports are to be based on ``the records made and 
kept pursuant to section 8(c) of this Act'' (29 U.S.C. 673(e)).
    Further support for the Secretary's authority to require employers 
to keep and submit records of work-related illnesses and injuries can 
be found in the Congressional Findings and Purpose at the beginning of 
the OSH Act (29 U.S.C. 651). In this section, Congress declares the 
overarching purpose of the Act to be ``to assure so far as possible 
every working man and woman in the Nation safe and healthful working 
conditions'' (29 U.S.C. 651(b)). One of the ways in which the Act is 
meant to achieve this goal is ``by providing for appropriate reporting 
procedures. . . [that] will help achieve the objectives of this Act and 
accurately describe the nature of the occupational safety and health 
problem'' (29 U.S.C. 651(b)(12)).
    The OSH Act authorizes the Secretary of Labor to issue two types of 
occupational safety and health rules: Standards and regulations. 
Recordkeeping requirements promulgated under the Act are characterized 
as regulations (see 29 U.S.C. 657 (using the term ``regulations'' to 
describe recordkeeping requirements)). Standards aim to correct 
particular identified workplace hazards, while regulations further the 
general enforcement and detection purposes of the OSH Act (e.g., 
Workplace Health & Safety Council v. Reich, 56 F.3d 1465, 1468 (D.C. 
Cir. 1995) (citing Louisiana Chemical Ass'n, 657 F.2d 777, 781-82 (5th 
Cir. 1981)); United Steelworkers of America v. Auchter, 763 F.2d 728, 
735 (3d Cir. 1985)).
    This proposed regulation 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); 
U.S. v. Miller, 425 U.S. 435, 442-43 (1976); cf. Shapiro v. U.S., 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. 1839, 1856 (2011)). The proposed information submission 
requirement is reasonable. The requirement serves a substantial 
government interest in the health and safety of workers, has a strong 
statutory basis, and rests on reasonable, objective criteria for 
determining which employers must report information to OSHA (see New 
York v. Burger, 482 U.S. 691, 702-703 (1987)). See the discussion in 
sections I, above, and II.d., below.

[[Page 67256]]

    OSHA notes that two courts held, contrary to A.B. Chance, that the 
Fourth Amendment required 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 Elec. Co., 834 F.2d 994 (11th Cir. 1987)). Those decisions are 
inapposite here. The courts based their rulings on a concern that field 
enforcement staff had unbridled discretion to choose the employers and 
circumstances in which they would demand access. The Emerson Electric 
court specifically noted that in situations where ``businesses or 
individuals are required to report particular information to the 
government on a regular basis[,] a uniform statutory or regulatory 
reporting requirement [would] satisf[y] the Fourth Amendment concern 
regarding the potential for arbitrary invasions of privacy'' (834 F.2d 
at 997, fn.2). This proposed rule, like that hypothetical, would 
establish general reporting requirements based on objective criteria 
and would not vest field staff with any discretion. The employers that 
are required to report data, the information they must report, and 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. The proposed rule is similar in these respects 
to the existing rule that authorizes reporting pursuant to the OSHA 
Data Initiative and is reasonable under the Fourth Amendment (see 62 FR 
6434, 6437-38 (Feb. 11, 1997) for a discussion of Fourth Amendment 
issues in the final rule on Reporting Occupational Injury and Illness 
Data to OSHA).

II. Background

    OSHA estimates that this rule will have economic costs of $11.9 
million per year, including $10.5 million per year to the private 
sector, with costs of $183 per year for affected establishments with 
250 or more employees and $9 per year for affected establishments with 
20 or more employees in designated industries. The Agency believes that 
the annual benefits, while unquantified, significantly exceed the 
annual costs.
    Benefits include:
     Better compliance with OSHA's statutory directive ``to 
assure so far as possible every working man and woman in the Nation 
safe and healthful working conditions and to preserve our human 
resources'' (29 U.S.C. 651(b)) ``by providing for appropriate reporting 
procedures with respect to occupational safety and health which 
procedures will help achieve the objectives of this Act and accurately 
describe the nature of the occupational safety and health problem'' (29 
U.S.C. 651(b)(12)).
     Increased workplace safety as a result of expanded OSHA 
access to timely, establishment-specific injury/illness information. 
OSHA access to this information will allow OSHA to use its resources 
more effectively by enabling the Agency to identify the workplaces 
where workers are at greatest risk, in general and/or from specific 
hazards, and to target its compliance assistance and enforcement 
efforts accordingly.
     Increased workplace safety as a result of making timely, 
establishment-specific injury/illness information public and easily 
available to employers. Public access to this information will 
encourage employers to maintain and improve workplace safety/health in 
order to support their reputations as good places to work and/or do 
business with. Employers will also be able to compare their own injury/
illness rates to those of other employers.
     Increased workplace safety as a result of making timely, 
establishment-specific injury/illness information public and easily 
available to employees, employee representatives, and potential 
employees. Public access to this information will allow current 
employees to compare their workplaces to the best workplaces for safety 
and health and will allow potential employees to make more informed 
decisions about potential places of employment.
     Increased workplace safety as a result of making timely, 
establishment-specific injury/illness information public and easily 
available to customers and potential customers. Public access to this 
information will allow members of the public to make more informed 
decisions about current and potential companies with which to do 
business.
     Improved research on occupational safety and health. 
Public access to timely, establishment-specific injury and illness 
information will allow researchers to identify patterns of injuries or 
illnesses that are masked by the aggregation of injury/illness data in 
existing data sources.

a. Recordkeeping Rule

    In 1971, OSHA promulgated 29 CFR Part 1904, Recording and Reporting 
Occupational Injuries and Illnesses (Part 1904). This rule requires the 
recording of work-related injuries and illnesses that involve death, 
loss of consciousness, days away from work, restriction of work, 
transfer to another job, medical treatment other than first aid, or 
diagnosis of a significant injury or illness by a physician or other 
licensed health care professional (29 CFR 1904.7).
    Between 1994 and 2001, OSHA completely revised Part 1904. Amended 
recordkeeping regulations went into effect in 1994 (Reporting 
fatalities and multiple hospitalization incidents to OSHA, 29 CFR 
1904.39) and 1997 (Annual OSHA injury and illness survey of ten or more 
employers, 29 CFR 1904.41). The bulk of the revisions occurred in 2001, 
when 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 (Jan. 19, 2001)).
    Under 29 CFR 1904.1 and 1904.2, three categories of employers are 
required to keep OSHA injury and illness records:
    1. Employers under OSHA jurisdiction with 11 or more employees, 
unless the establishment is classified in a partially-exempt industry 
(specific low-hazard retail, service, finance, insurance, or real 
estate industries, listed in Appendix A to 29 CFR 1904 Subpart B).
    2. Employers with ten or fewer employees, if OSHA or the Bureau of 
Labor Statistics (BLS) informs them in writing that they must keep 
records under Sec.  1904.41 (Annual OSHA injury and illness survey of 
ten or more employers) or Sec.  1904.42 (Requests from the Bureau of 
Labor Statistics for data).
    3. Establishments in partially-exempt industries, if OSHA or BLS 
informs them in writing that they must keep records under Sec.  1904.41 
(Annual OSHA injury and illness survey of ten or more employers) or 
Sec.  1904.42 (Requests from the Bureau of Labor Statistics for data).
    The recordkeeping rule currently covers approximately 750,000 
employers with approximately 1,500,000 establishments. Under Sec.  
1904.29, covered employers must complete Form 301 (Injury and Illness 
Incident Report) for each injury and illness at a covered establishment 
and record each injury and illness on Form 300 (Log of Work-Related 
Injuries and Illnesses). In addition, each year, the employers must use 
the information from these forms to complete Form 300A (Summary of 
Work-Related Injuries and Illnesses) for each covered establishment.
    The records required by the recordkeeping rule provide OSHA and 
consultants in OSHA's On-Site

[[Page 67257]]

Consultation Program with important information. However, OSHA 
currently does not acquire the information in these records unless the 
establishment receives an inspection or is part of the OSHA Data 
Initiative.
    At the beginning of an inspection, an OSHA representative reviews 
the establishment's injury and illness records to help focus the 
inspection on the safety and health hazards suggested by the records. 
OSHA consultants conduct a similar review when an establishment has 
requested a consultation. Also, as discussed below, OSHA currently uses 
establishment-specific injury and illness information obtained through 
the OSHA Data Initiative to help target the most hazardous worksites 
and the worst safety and health hazards. Finally, detailed, aggregate 
injury and illness data published by the BLS Survey of Injuries and 
Illnesses help OSHA identify and characterize occupational safety and 
health problems and allocate enforcement and compliance assistance 
resources.

b. Data Collections

    Currently, two Department of Labor data collections request and 
compile employers' injury and illness records: The annual OSHA Data 
Initiative (ODI), conducted by OSHA, and the annual Survey of 
Occupational Injuries and Illnesses (SOII), conducted by BLS. This 
rulemaking affects the ODI by replacing the current version of Sec.  
1904.41. It does not change the authority of the SOII, which is 
conducted pursuant to Sec.  1904.42.
1. OSHA Data Initiative (ODI)
    OSHA's mission is to assure safe and healthful working conditions 
for working men and women. The primary purpose of the ODI is to enable 
OSHA to focus its efforts on individual workplaces with ongoing serious 
safety and health problems, as identified by the occupational injury 
and illness rates at those workplaces. Authority for the ODI comes from 
Sec.  1904.41 (Annual OSHA injury and illness survey of ten or more 
employers).
    The ODI consists of larger establishments (20 or more employees) in 
the manufacturing industry and in an additional 70 non-manufacturing 
industries. These are industries with historically high rates of 
occupational injury and illness. Currently, there are over 160,000 
unique establishments that are subject to participation in the ODI. The 
ODI is designed so that each eligible establishment receives the ODI 
survey at least once every three-year cycle. Each year, the ODI sends 
the survey to approximately 80,000 establishments (1.1% of all 
establishments nationwide), which typically account for approximately 
700,000 injuries and illnesses (19% of injuries and illnesses 
nationwide).
    The ODI survey collects the following data from Form 300A (Summary 
of Work-Related Injuries and Illnesses) from each establishment:
     Number of cases (total number of deaths, total number of 
cases with days away from work, total number of cases with job transfer 
or restrictions, and total number of other recordable cases);
     Number of days (total number of days away from work and 
total number of days of job transfer or restriction);
     Injury and illness types (total numbers of injuries, skin 
disorders, respiratory conditions, poisonings, hearing loss, and all 
other illnesses);
     Establishment information (name, street address, industry 
description, SIC or NAICS code, and employment information (annual 
average number of employees, total hours worked by all employees last 
year));
     Signature (company executive's signature, title, telephone 
number, and date).
    Employers may submit their data on paper forms or electronically. 
OSHA then calculates establishment-specific injury and illness rates 
and uses them in its Site-Specific Targeting (SST) enforcement program 
and High Rate Letter outreach program. The Agency also makes the 
establishment-specific data available to the public through its Web 
site at http://www.osha.gov/pls/odi/establishment_search.html and 
through President Obama's Open Government Initiative at Data.gov 
(http://www.data.gov/raw/1461).
    The proposed rule replaces the ODI with the new language proposed 
for Sec.  1904.41(a)(2). This section will require all establishments 
that are required to keep injury and illness records under Part 1904, 
had 20 or more employees in the previous year, and are in certain 
designated industries to electronically submit the information from the 
OSHA annual summary form (Form 300A) to OSHA or OSHA's designee on an 
annual basis.
2. BLS Survey of Occupational Injuries and Illnesses
    The primary purpose of the SOII is to provide annual information on 
the rates and numbers of work-related non-fatal injuries and illnesses 
in the United States of America, and on how these statistics vary by 
incident, industry, geography, occupation, and other characteristics. 
The Confidential Information Protection and Statistical Efficiency Act 
of 2002 (Pub. L. 107-347, Dec. 17, 2002) prohibits BLS from releasing 
establishment-specific data to the general public or to OSHA.
    Authority for the SOII comes from Sec.  1904.42 (Requests from the 
Bureau of Labor Statistics for data). Each year, BLS collects data from 
Form 300A (Summary of Work-Related Injuries and Illnesses), Form 301 
(Injury and Illness Incident Report), and Form 300 (Log of Work-Related 
Injuries and Illnesses) from a scientifically-selected probability 
sample of about 230,000 establishments, covering nearly all private-
sector industries, as well as state and local government. Employers may 
submit their data on paper forms or electronically. As stated above, 
the proposed rule will not affect the authority for the SOII.

c. OSHA Access to Establishment-Specific Injury and Illness Information

    OSHA currently is able to acquire establishment-specific injury and 
illness information directly from employers in three limited ways.
    First, OSHA acquires establishment-specific injury and illness 
information from employers through inspections. OSHA inspectors examine 
all records kept under Part 1904, including detailed information about 
specified injuries. However, each year, OSHA inspects only a small 
percentage of all establishments under OSHA jurisdiction. For example, 
in 2010, OSHA and its state partners inspected approximately 1% of 
establishments under OSHA jurisdiction (approximately 98,000 
inspections, out of 7.5 million total establishments). Although OSHA 
does keep some of the Part 1904 records collected during inspections in 
its enforcement files, the information contained in them is too limited 
to be used in the ways OSHA expects to use the injury/illness 
information it will collect under the current proposal.
    Second, OSHA acquires establishment-specific injury and illness 
information from employers through the ODI. However, because the ODI 
collects only summary data, it does not enable OSHA to identify 
specific hazards or problems in establishments in the ODI. In addition, 
the data are not timely. The injury/illness information OSHA uses in 
each year's Site-Specific Targeting Program comes from the previous 
year's ODI, which collected injury/illness data from the year before 
that. As a result, OSHA's targeting is typically based on injury/
illness data that are two or three years old. Finally, the group of 
80,000 establishments in each year's ODI is not a statistically-
representative sample

[[Page 67258]]

either of establishments eligible to be included in the ODI or of 
establishments overall.
    Finally, OSHA acquires establishment-specific injury and illness 
information from employers through Sec.  1904.39, which requires 
employers to report all employee deaths from work-related incidents to 
OSHA. Employers must also report all multiple-hospitalization events, 
defined by Sec.  1904.39 as in-patient hospitalizations of three or 
more employees as a result of a work-related incident.
    These most-severe workplace injuries and illnesses are fortunately 
rare. OSHA receives fewer than 2,000 establishment-specific reports of 
fatalities each year and fewer than 20 establishment-specific reports 
of multiple-hospitalization events. OSHA responds to each of these 
reports with an investigation and, as appropriate, an inspection.
    On June 22, 2011, OSHA published a Notice of Proposed Rulemaking 
that would amend the requirements of Sec.  1904.39 to require employers 
to report all work-related in-patient hospitalizations and amputations 
to OSHA, in addition to all employee deaths (76 FR 36414 (June 22, 
2011)). OSHA estimated that the new reporting requirements would result 
in a total of 210,000 additional establishment-specific reports of 
these severe injuries to OSHA. Even this larger number of reports, 
however, would represent less than one in ten of the roughly 3 million 
annual recordable injury and illness cases. In addition, the data would 
represent only the most severe injuries.
    Given the above, OSHA currently does not acquire establishment-
specific injury and illness information from an establishment in a 
particular year unless the establishment was inspected, was part of the 
ODI, and/or reported a fatality or multiple-hospitalization event.
    As noted above, OSHA also acquires aggregate information from the 
injury and illness records collected through the BLS SOII. However, 
SOII data also have a time lag of almost a year, with data for a given 
year not available until November of the following year. More 
importantly, the SOII data available to OSHA do not identify the 
specific establishments where the injuries and illnesses occurred.

d. Benefits of Electronic Data Collection

    The main purpose of this rulemaking is to improve workplace safety 
and health through the collection and use of timely, establishment-
specific injury and illness data. With the information acquired through 
this proposed rule, employers, employees, employee representatives, the 
government, and researchers will be better able to identify and remove 
workplace hazards.
    The proposed rule will support OSHA's statutory directive to 
``assure so far as possible every working man and woman in the Nation 
safe and healthful working conditions and to preserve our human 
resources'' (29 U.S.C. 651(b)) ``by providing for appropriate reporting 
procedures with respect to occupational safety and health which 
procedures will help achieve the objectives of this Act and accurately 
describe the nature of the occupational safety and health problem'' (29 
U.S.C. 651(b)(12)).
    It will greatly expand OSHA's access to the establishment-specific 
information employers are already required to record under Part 1904. 
As described in the previous section, OSHA currently does not have 
timely, systematic access to this information. OSHA has access to 
establishment-specific injury and illness information in a particular 
year only if the establishment was inspected, was part of the ODI, and/
or reported a fatality or a multiple hospitalization event. In 
addition, the injury and illness data collected through the ODI are 
summary data only and not timely. The fatality/multiple hospitalization 
event data do not include the establishment's injury and illness 
records unless OSHA also conducts an inspection.
    The rule's provisions requiring regular electronic submission of 
injury and illness data will allow OSHA to acquire a much larger 
database of timely, establishment-specific information about injuries 
and illnesses in the workplace. This information will help OSHA use its 
resources more effectively by enabling OSHA to identify the workplaces 
where workers are at greatest risk.
    For example, OSHA could refer employers who report high overall 
injury/illness rates to OSHA's free on-site consultation program. OSHA 
could also send hazard-specific educational materials to employers who 
report high rates of injuries or illnesses related to those hazards. 
OSHA could use the information to identify emerging hazards, support an 
Agency response, and reach out to employers whose workplaces might 
include those hazards.
    The proposed new collection would provide establishment-specific 
injury and illness data for analyses that are not currently possible 
with the data sets from inspections, the ODI, and reporting of 
fatalities and multiple-hospitalization events. For example, OSHA could 
analyze the data collected under this proposed system to answer the 
following questions:
    1. What are the lowest injury/illness rates for establishments in a 
particular high-hazard industry?
    2. What are the long-term changes over time in injuries and 
illnesses in a particular industry?
    3. What is the effect of an OSHA intervention program targeted at a 
particular industry or particular industry-related hazard on injuries/
illnesses in that industry?
    4. What are the injury/illness outcomes of an OSHA intervention, as 
determined by a case-control study?
    5. What are the common hazards in low-rate establishments compared 
to high-rate establishments in a particular industry?
    6. How do injuries and illnesses in a particular industry vary by 
season?
    7. How do injuries and illnesses in a particular industry vary by 
geographical location of the establishment?
    In addition, OSHA plans to post the injury and illness data online, 
as encouraged by President Obama's Open Government Initiative (for 
example, see www.whitehouse.gov/open). The Agency believes that public 
access to timely, establishment-specific injury and illness data will 
improve workplace safety and health.
    Specifically, the online posting of establishment-specific injury 
and illness information will encourage employers to improve and/or 
maintain workplace safety/health to support their reputations as good 
places to work or do business with. Many corporations now voluntarily 
report their workplace injury and illness rates in annual 
``Sustainability Reports'', in order to show investors, stakeholders, 
and the public that they are committed to positive social values, 
including workplace safety. However, under OSHA's current recording and 
reporting requirements, employers have access only to their own data, 
aggregate injury/illness data in the SOII, summary data from 
establishments in the ODI, and fatality/multiple-hospitalization event 
reports. Using data collected under the proposed rule, employers could 
compare injury rates and hazards at their establishments to those at 
comparable establishments and set workplace safety/health goals 
benchmarked to the establishments they consider most comparable.
    Online availability of establishment-specific injury and illness 
information will also encourage employees to contribute to improvements 
in workplace safety/health. Under Sec.  1904.35, employees, former 
employees, their personal

[[Page 67259]]

representatives, and their authorized employee representatives have the 
right to access the OSHA injury and illness records at their workplace, 
with some limitations. They also have access to the limited injury/
illness information, discussed above, that is currently available to 
the public--the aggregate injury/illness data in the SOII, summary data 
from establishments in the ODI, and fatality/multiple-hospitalization 
event reports. In addition, Sec.  1904.32 requires employers to post a 
copy of the establishment's annual summary in each establishment in a 
conspicuous place where notices to employees are customarily posted. 
This provision allows employees automatic access to the summary data 
without requiring employees to request the data from their employer.
    Using data collected under the proposed rule, employees would be 
able to compare their own workplaces to the safest workplaces in their 
industries. This could encourage employees in more hazardous workplaces 
to work towards improvements by showing them that the improvements are 
possible, while demonstrating the results of workplace safety/health 
efforts to employees in the less-hazardous workplaces. Further, while 
the current access provisions of the regulation provide employees the 
right to access the information on the Part 1904 recordkeeping forms, 
evidence shows that few employees exercise this right. During 2,836 
inspections conducted between 1996 and 2011 to assess the injury and 
illness recordkeeping practices of employers, 2,599 of the 
recordkeepers interviewed (92%) indicated that employees never 
requested access to the records required under Part 1904. OSHA believes 
that employees will access and make use of the data more frequently 
when the information is available without having to request the 
information from their employers. Uninhibited access to the information 
will allow employees to better identify hazards within their own 
workplace and to take actions to have the hazards abated.
    Potential employees currently have access only to the limited 
injury/illness information currently available to the public--aggregate 
injury/illness data in the SOII, summary data from establishments in 
the ODI, and fatality/multiple-hospitalization event reports. Using 
data collected under the proposed rule, potential employees could 
examine the injury and illness records of establishments where they are 
interested in working, to help them make a more informed decision about 
a future place of employment. This would also encourage employers with 
more hazardous workplaces in a given industry to improve workplace 
safety and health, since potential employees, especially the ones whose 
skills are most in demand, might be reluctant to work at more hazardous 
establishments.
    The general public also currently has access only to aggregate 
injury/illness data in the SOII, summary data from establishments in 
the ODI, and fatality/multiple hospitalization event reports. Using 
data collected under the proposed rule, members of the public will be 
able to make more informed decisions about current and potential places 
to do business with. For example, potential customers might choose to 
patronize only the businesses in a given industry with the lowest 
injury/illness rates. Such decisions by customers would also encourage 
establishments with higher injury/illness rates in a given industry to 
improve workplace safety in order to become more attractive to 
potential customers.
    Finally, researchers also currently have access only to the limited 
injury/illness data described above. Using data collected under the 
proposed rule, researchers might identify previously unrecognized 
patterns of injuries and illnesses across establishments where workers 
are exposed to similar hazards. Such research would be especially 
useful in identifying hazards that result in a small number of injuries 
or illnesses in each establishment but a large number overall, due to a 
wide distribution of those hazards in a particular area, industry, or 
establishment type. Data made available under the proposed rule may 
also allow researchers to identify patterns of injuries or illnesses 
that are masked by the aggregation of injury/illness data in the SOII.
    Workplace safety and health professionals might use data published 
under the proposed rule to identify establishments whose injury/illness 
records suggest that the establishments would benefit from their 
services. In general, online access to this large database of injury 
and illness information will support the development of innovative 
ideas for improving workplace safety and will allow everybody with a 
stake in workplace safety to participate in improving occupational 
safety and health.
    This regulation may also improve the accuracy of the reported data. 
Section 1904.32 already requires company executives subject to Part 
1904 requirements to certify that they have examined the annual summary 
(Form 300A) and reasonably believe, based on their knowledge of the 
process by which the information was recorded, that the annual summary 
is correct and complete. OSHA recognizes that most employers are 
diligent in complying with this requirement. However, a minority of 
employers is less diligent; in recent years, one third or more of 
violations of Sec.  1904.32, and up to one tenth of all recordkeeping 
(Part 1904) violations, have involved this certification requirement. 
If this minority of employers knows that their data must be submitted 
to the Agency and may also be examined by members of the public, 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 Sec.  1904.32.
    Finally, the National Advisory Council on Occupational Safety and 
Health (NACOSH) has indicated its support of the efforts of OSHA in 
consultation with NIOSH to modernize the system for collection of 
injury and illness data to assure that it is timely, complete, and 
accurate, as well as both accessible and useful to employers, 
employees, responsible government agencies, and members of the public.

e. Publication of Electronic Data

    OSHA intends to make the data it collects public. The publication 
of specific data elements will in part be restricted by provisions 
under the Freedom of Information Act (FOIA) and the Privacy Act, as 
well as specific provisions within Part 1904. OSHA may make the 
following data from the various forms (Docket exhibit OSHA-2013-0023-
0001) available in a searchable online database:
    Form 300A (Summary Form)--All data fields could be made available. 
These data are currently collected under the ODI and during inspections 
and are released under FOIA requests. The annual summary form is also 
posted at workplaces under Sec.  1904.32(a)(4).and Sec.  1904.32(b)(5). 
OSHA currently posts establishment-specific injury and illness rates 
calculated from the data collected through the ODI on OSHA's public Web 
site at http://www.osha.gov/pls/odi/establishment_search.html. Form 
300A does not contain any personally identifiable information.
    Form 300 (the Log)--Except for Column B (the employee's name), all 
fields could be made available. These data are generally released under 
FOIA requests. Section 1904.29(b)(10) prohibits release of employees' 
names and personal identifiers contained in the forms to individuals 
other than the government, employees, former

[[Page 67260]]

employees, and authorized representatives. OSHA does not currently 
conduct a systematic collection of the information on this form. 
However, the Agency does review the form during inspections and 
occasionally collects the form for enforcement case files.
    Form 301 (Incident Report)--All fields on the right-hand side of 
the form (items 10 through 18) could typically be made available. These 
data are generally released in response to FOIA requests. Sections 
1904.35(b)(v)(A) and (B) prohibit the release of information in items 1 
through 9 to individuals other than the employee or former employee who 
suffered the injury or illness and his or her personal representatives. 
OSHA does not currently conduct a systematic collection of the 
information on this form. However, the Agency does review the form 
during some inspections and occasionally collects the form for 
enforcement case files.
    It should be noted that other agencies post establishment-specific 
health and safety data with personal identifiers, including names. For 
example, the Mine Safety and Health Administration (MSHA) publishes 
coded information pertaining to each accident, illness, or injury 
reported to MSHA on MSHA Form 7000-1, including employee gender and 
age, as well as narratives associated with specific accidents/injuries 
for a particular year. An example of information published by MSHA can 
be viewed at http://www.msha.gov/drs/drshome.htm. Further, MSHA 
publishes a Preliminary Accident Report for fatalities, which includes 
the employee's name, age, and a description of the accident. MSHA also 
publishes an Accident Investigation Report that provides the names of 
other employees involved in the fatal incident.
    The Federal Railroad Administration (FRA) posts headquarters-level 
Accident Investigation Reports filed by railroad carriers under 49 
U.S.C. 20901 or made by the Secretary of Transportation under 49 U.S.C. 
20902; in the case of highway-rail grade crossing incidents, these 
reports include personally-identifiable information (age and gender of 
the person(s) in the struck vehicle).
    Finally, the Federal Aviation Administration (FAA) posts National 
Transportation Safety Board (NTSB) reports about aviation accidents. 
These reports include personally-identifiable information about 
employees, including job history and medical information. OSHA invites 
public comment on which data reported under the proposed the rule it 
would be useful to publish as part of OSHA's online database of 
establishment-specific injury and illness information. OSHA also 
invites public comment on whether there are additional steps the Agency 
should take to protect employee privacy interests.

III. Stakeholder Meetings and Public Comments

    To help OSHA gather information about electronic submission of 
establishment-specific injury and illness data, OSHA held one 
stakeholder meeting in Washington, DC, on May 25, 2010, and two in 
Chicago, Illinois, on June 3, 2010. Topics included:

 Scope of the data to be collected
 Uses of the data to be collected
 Methods of data collection
 Economic impacts
In addition, as part of the stakeholder meeting notification, OSHA 
requested public comment. Comments were submitted for Docket No. OSHA-
2010-0024. Summaries of the stakeholder meetings are available on 
OSHA's Recordkeeping Page at http://www.osha.gov/recordkeeping/stakeholdermeeting.html and under Docket No. OSHA-2010-0024 at http://www.regulations.gov. Major points brought up by individual stakeholders 
include:
 As long as the data submission process is simple and 
straightforward, an OSHA requirement for electronic submission of 
information from injury and illness records will not be a burden for 
most large employers, because large employers already keep their 
records electronically.
 The electronic submission system must be easy to use and 
should be compatible with workers' compensation systems and data 
submittal for the SOII.

IV. Summary and Explanation of the Proposed Rule

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

a. Description of Proposed Revisions

1. Sec.  1904.41(a)(1)--Quarterly Electronic Submission of Part 1904 
Records by Establishments With 250 or More Employees
    OSHA proposes to add a requirement that establishments with 250 or 
more employees (including full-time, part-time, temporary, and seasonal 
workers) at any time during the previous calendar year must 
electronically submit to OSHA or OSHA's designee, on a quarterly basis, 
all information from the records that they keep under Part 1904. This 
information includes the individual entries on the OSHA Form 300 and 
the information entered on each OSHA Form 301. The summary data from 
OSHA Form 300A will be submitted annually. This requirement will not 
apply to establishments with 250 or more employees that are partially 
exempt from keeping injury and illness records under Sec.  1904.2 
(Partial exemption for establishments in certain industries). OSHA has 
preliminarily determined that it is appropriate to require quarterly 
data submission from establishments with 250 or more employees. The 
Agency believes that these establishments will find quarterly 
submission to be a relatively small burden, when compared to the 
benefits to worker safety and health that frequent submission can 
provide.
    OSHA will provide a secure Web site for the data collection. 
Employers will register their establishments and be

[[Page 67261]]

assigned a login ID and password. The Web site will allow for both 
direct data entry and submission of data through a batch file upload, 
as appropriate. OSHA invites public comment on the design of the 
electronic reporting system and the implementation of the electronic 
reporting requirement.
    The proposed rule does not add to or change any employer's 
obligations to complete and retain the injury and illness records. Part 
1904 already requires employers at establishments with 250 or more 
employees to keep injury and illness records, unless they are exempt 
under Sec.  1904.2 (Partial exemption for establishments in certain 
industries). The proposed rule also does not add to or change the 
recording criteria or definitions for these records. The only 
difference between the proposed rule and the current rule is that 
employers who keep injury and illness records under Part 1904, and had 
250 or more employees at any time in the previous calendar year, will 
have to submit their records electronically, to OSHA or OSHA's 
designee, on a quarterly basis.
2. Sec.  1904.41(a)(2)--Annual Electronic Submission of OSHA Annual 
Summary Form (Form 300A) by Establishments With 20 or More Employees in 
Designated Industries
    OSHA proposes to add a requirement that establishments with 20 or 
more employees, in designated industries, must electronically submit 
the information from the OSHA summary form (Form 300A) to OSHA or 
OSHA's designee, on an annual basis. This will replace the current 
requirement in Sec.  1904.41(a) that employers that receive OSHA's 
annual survey form must fill it out and send it in. The requirement for 
the information from the OSHA annual summary form (Form 300A) will 
replace the data requirements listed separately in current Sec.  
1904.41(a)(1) (number of workers employed), Sec.  1904.41(a)(2) (number 
of hours worked by employees), and Sec.  1904.41(a)(3) (requested 
information from Part 1904 records).
    OSHA has chosen to require annual submission of Form 300A data from 
these establishments, as opposed to annual or quarterly submission of 
Form 300 and Form 301 data, because it recognizes that more frequent 
submissions of more data would impose an additional burden on these 
establishments, some of which may not have on-site access to the 
Internet. The Agency believes that annual submission of Form 300A data 
will provide researchers with valuable data from these establishments 
in a relatively timely manner.
    OSHA will provide a secure Web site for the data collection. 
Employers will register their establishments and be assigned a login ID 
and password. The Web site will allow for both direct data entry and 
submission of data through a batch file upload, as appropriate. OSHA 
invites public comment on the design of the electronic reporting system 
and the implementation of the electronic reporting requirement.
    The designated industries represent all industries covered by Part 
1904 with a 2009 Days Away From Work, Job Restriction, or Job Transfer 
(DART) rate in the BLS SOII of 2.0 or greater, excluding four selected 
transit industries where local government is a major employer. On 
average, establishments in these industries experience 2 or more 
serious injuries and illnesses per 100 full time employees. The 
designated industries, which will be published as Appendix A to Part 
1904 Subpart E, will be as follows:

------------------------------------------------------------------------
                 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.
4521...................................  Department Stores.
4529...................................  Other General Merchandise
                                          Stores.
4533...................................  Used Merchandise Stores.
4543...................................  Direct Selling Establishments.
4811...................................  Scheduled Air Transportation.
4832...................................  Inland Water Transportation.
4841...................................  General Freight Trucking.
4842...................................  Specialized Freight Trucking.
4855...................................  Charter Bus Industry.
4871...................................  Scenic and Sightseeing
                                          Transportation, Land.
4872...................................  Scenic and Sightseeing
                                          Transportation, Water.
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.
4921...................................  Couriers.
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.

[[Page 67262]]

 
5621...................................  Waste Collection.
5622...................................  Waste Treatment and Disposal.
5629...................................  Remediation and Other Waste
                                          Management Services.
6216...................................  Home 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.
6232...................................  Residential Mental Retardation,
                                          Mental Health and Substance
                                          Abuse Facilities.
6233...................................  Community Care Facilities for
                                          the Elderly.
6239...................................  Other Residential Care
                                          Facilities.
6243...................................  Vocational Rehabilitation
                                          Services.
7112...................................  Spectator Sports.
7131...................................  Amusement Parks and Arcades.
7132...................................  Gambling Industries.
7211...................................  Traveler Accommodation.
8113...................................  Commercial and Industrial
                                          Machinery and Equipment
                                          (except Automotive and
                                          Electronic) Repair and
                                          Maintenance.
8123...................................  Drycleaning and Laundry
                                          Services.
------------------------------------------------------------------------

    The proposed rule does not add to or change any employer's 
obligations to complete and retain the injury and illness records. Part 
1904 already requires employers at establishments with 20 or more 
employees to keep injury and illness records, including the OSHA 
summary unless they are partially-exempt under Sec.  1904.2 (Partial 
exemption for establishments in certain industries). None of the 
designated industries is partially-exempt under Sec.  1904.2 (Partial 
exemption for establishments in certain industries). The proposed rule 
also does not add to or change the recording criteria or definitions 
for these records. The only difference between the proposed rule and 
the current rule is that establishments that keep injury and illness 
records under Part 1904, had 20 or more employees in the previous year, 
and are in the designated industries, will have to submit the 
information from the OSHA annual summary form (Form 300A) 
electronically, to OSHA or OSHA's designee, once a year.
    As stated above, the industry list for this proposed section of the 
rule is based on an analysis of CY 2009 BLS DART rates. More current 
BLS injury and illness data will be available at the time of the final 
rulemaking. When developing the final rule, OSHA intends to use the 
must current BLS data available for determining the final industry 
coverage. See section IV.b.3 of this preamble for a solicitation for 
comment on this issue.
3. Sec.  1904.41(a)(3)--Electronic Submission of Part 1904 Records Upon 
Notification
    OSHA proposes to add a requirement that all employers who receive a 
notification from OSHA must submit information from their Part 1904 
injury and illness records electronically to OSHA or OSHA's designee, 
for the time period and at the intervals specified by the notification. 
Employers will not have to submit injury and illness data to OSHA under 
this section unless they are notified.
    OSHA will announce individual data collections through publication 
in the Federal Register and the OSHA newsletter and through 
announcements on its Web site. Establishments that are required to 
submit the data will also be notified by mail.
    Each notification will be part of an individual data collection 
designed to obtain specified injury and illness data from a specified 
group of employers at a specified time interval. Individual data 
collections will provide OSHA with the timely, establishment-specific 
information necessary for identifying emerging hazards, characterizing 
specific areas of concern, or targeting inspections and outreach 
activities under an OSHA emphasis program.
    The individual data collection might be limited. For example, to 
obtain information on occupational skin disorders in summer road 
construction, OSHA might request all Form 301 data for recordable skin 
disorder cases in establishments in the highway, street, and bridge 
construction industry (NAICS 23731) in June, July, and August of a 
particular year.
    The data collection could also be more general. For example, OSHA 
might request all of the data recorded under Part 1904 from 
establishments in the primary metals industry (NAICS 331) in the past 
year.
    OSHA will provide a secure Web site for the data collection. The 
data collection notification will provide the location of the Web site 
and will ask notified employers to register their establishments for 
the specified data collection. OSHA will assign employers with 
registered establishments a login ID and password for that data 
collection. The Web site will allow for both direct data entry and 
submission of data through a batch file upload, as appropriate. OSHA 
invites public comment on the design of the electronic reporting system 
and the implementation of the electronic reporting requirement.
    For each new data collection conducted under this proposed section, 
the Agency will request OMB approval under separate Paperwork Reduction 
Act (PRA) control numbers. OSHA currently uses this process for the ODI 
data collection conducted under the current Sec.  1904.41, which OMB 
currently approves under the control number 1218-0209.
    The proposed rule does not add to or change any employer's 
obligation to complete and retain injury and illness records under Part 
1904 (approved by OMB under Control Number 1218-0176 ``Recordkeeping 
and Reporting Occupational Injuries and Illnesses (29 CFR Part 
1904)''). Employers that are required to keep injury and illness 
records under Part 1904 will not have to keep any additional records as 
a result of this proposed rule. Employers that are normally exempt from 
keeping injury and illness records under Sec.  1904.1 (Partial 
exemption for employers with 10 or fewer employees) and/or Sec.  1904.2 
(Partial exemption for establishments in certain industries) are 
already required by the current version of Sec.  1904.41 (Annual OSHA 
injury and illness survey of ten or more employers) to keep records if 
OSHA informs them

[[Page 67263]]

in writing to do so, and the proposed rule continues this requirement.
    The proposed rule also does not add to or change the recording 
criteria or definitions for these records. The only difference between 
the proposed rule and the current rule is that notified employers will 
have to submit the requested records electronically.
4. Sec.  1904.41, Paragraphs (b)(1)-(b)(6)
    These parts of the proposed rule answer the following questions:
     Does every employer have to send data to OSHA (Sec.  
1904.41, Paragraph (b)(1))?
     How will I be notified that I have to submit the data 
(Sec.  1904.41, Paragraph (b)(2))?
     How often do I have to submit the data (Sec.  1904.41, 
Paragraph (b)(3))?
     How do I submit the data (Sec.  1904.41, Paragraph 
(b)(4))?
     Do I have to submit data if I am normally exempt from 
keeping OSHA injury and illness records (Sec.  1904.41, Paragraph 
(b)(5))?
     Do I have to submit data if I am located in a State-Plan 
State (Sec.  1904.41, Paragraph (b)(6))?
5. Sec.  1952.4(d)
    OSHA proposes to revise this section, currently related to State 
participation in the Annual OSHA Injury/Illness Survey as authorized by 
the current Sec.  1904.41, to state that Federal OSHA will collect the 
data as described in Sec.  1904.41(a) through (c) and make the data 
available to the States and to stipulate that States must adopt 
identical requirements for enforcement purposes. This revision is 
proposed to align with the proposed revisions of Sec.  1904.41(a), 
Sec.  1904.41(b), and Sec.  1904.41(c), as explained above. This is 
consistent with Sec.  18(c)(7) of the OSH Act, which requires employers 
in the State to make reports to the Secretary in the same manner and to 
the same extent as if the plan were not in effect. Section 18(c)(8) of 
the OSH Act provides that the State agency will make such reports to 
the Secretary in such form and containing such information, as the 
Secretary shall from time to time require.

b. Issues, Alternatives, and Questions

1. Issues
    Section 8(g) of the OSH Act, which authorizes OSHA to issue 
recordkeeping and other regulations, also provides that ``(t)he 
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'' (29 U.S.C. 
657(g)(1)). OSHA currently publishes, on OSHA.gov, establishment-level 
injury and illness statistics gathered under the annual ODI survey. To 
make these data useful to employers, employees, and the public in 
dealing with safety and health issues, OSHA intends to continue to make 
selected data from the new electronic reporting requirements available 
on OSHA.gov.
    Proposed new provisions would require certain employers to 
electronically submit their illness and injury information to OSHA. 
OSHA invites public comment on the implementation of the electronic 
submission requirement, including whether it should take effect 
immediately or be phased in over a certain period of time at the 
beginning. Employer-maintained OSHA Form 300 logs are already subject 
to public disclosure under 29 CFR 1904.35(a)(2), which requires these 
logs to be disclosed to employees and their representatives, except 
that details of certain ``privacy concern'' cases may be kept 
confidential (see Sec.  1904.29(b)(6)-(9)). OSHA 301 forms, which 
contain more detail about individual injuries, are available only to 
the injured employees or their representatives.
    OSHA currently intends to make public all of the collected data 
that neither FOIA, the Privacy Act, nor specific Part 1904 provisions 
prohibit from release. However, OSHA welcomes public input on the 
question of which categories of information, from which OSHA-required 
form, it would be useful to publish. Whichever body of data is 
presented, however, OSHA will ensure that the names of employees with 
recorded injuries or illnesses are removed from any published 
information. OSHA invites public comment on whether there are 
additional steps the Agency should take to protect employee privacy 
interests.
    The information required to be submitted under the proposed rule is 
not of a kind that would include confidential commercial information. 
The information is limited to the number and nature of injuries or 
illnesses experienced by employees at particular establishments, and 
the data necessary to calculate injury/illness rates, i.e., the number 
of employees and the hours worked at an establishment. Details about a 
company's products or production processes are not included on the OSHA 
recordkeeping forms, nor do the forms request financial information. 
The basic employee safety and health data required to be recorded do 
not involve trade secrets, and public availability of such information 
would not enable a competitor to obtain a competitive advantage. Many 
employers already routinely disclose the number of employees at an 
establishment. As the court noted in New York Times Co. v. U.S. Dept. 
of Labor, most employers do not view injury/illness rates as 
confidential (340 F.Supp.2d 394, 403 (S.D.N.Y. 2004)). Further, Sec.  
1904.32(a)(4) already requires information about number of employees 
and hours worked to be publicly disclosed to employees through the 
posting of the OSHA Form 300A (annual summary form) in the workplace, 
and the release of this information does not cause competitive harm 
(New York Times Co., 340 F.Supp.2d at 401-403). The Secretary has 
carefully considered this question following the decision in the New 
York Times Co. case, and has concluded that the information contained 
on the OSHA recordkeeping forms does not constitute confidential 
commercial information. Members of the public are invited to express 
their views on this issue during the comment period.
2. Alternatives
    OSHA considered the following alternatives.
i. Alternative A--Monthly Submission Under Proposed Sec.  1904.41(a)(1)
    The proposed Sec.  1904.41(a)(1) requires quarterly submission from 
establishments with 250 or more employees. OSHA considered requiring 
monthly submission instead. Monthly submission would provide more 
timely data. On the other hand, this alternative would increase the 
reporting burden on employers at these establishments by increasing the 
number of times required to log in to the data collection system from 
four to twelve. Note that this alternative would not change the amount 
of data that employers would be required to report, but merely how 
often they would be required to report the data. OSHA welcomes public 
comment on this alternative.
ii. Alternative B--Annual Submission Under Proposed Sec.  1904.41(a)(1)
    The proposed Sec.  1904.41(a)(1) requires quarterly submission from 
establishments with 250 or more employees. OSHA considered requiring 
annual submission instead. Annual submission would reduce the reporting 
burden on employers at these establishments by decreasing the number of 
times required to log into the data collection system from four to one. 
Note that this alternative would not change the amount of data that 
employers would be required to report,

[[Page 67264]]

but merely how often they would be required to report the data.
    On the other hand, this alternative would reduce the timeliness of 
the data. First, cases from the beginning of the year would not be 
reported until the end of the year. Second, receiving, cleaning, and 
analyzing the submission of a year's worth of data all at once, rather 
than at regular intervals during the year, would affect OSHA's ability 
to make the data available to the public in a timely fashion. OSHA 
welcomes public comment on this alternative.
iii. Alternative C--One-Year Phase-in of Electronic Reporting Under 
Proposed Sec.  1904.41(a)(1)
    The proposed Sec.  1904.41(a)(1) requires electronic reporting for 
establishments with 250 or more employees. OSHA considered a phase-in 
of the electronic reporting requirement, under which these 
establishments would have the option of submitting data on paper forms 
for the first year this proposed rule was in effect. A one-year phase-
in would give time for these establishments to adjust to electronic 
reporting.
    On the other hand, according to information provided by 
stakeholders at the stakeholder meetings held by OSHA in 2010, almost 
all establishments of this size are already maintaining their Part 1904 
records electronically. (For a summary of stakeholder information, see 
the comments submitted for Docket No. OSHA-2010-0024. Also, summaries 
of the stakeholder meetings are available on OSHA's Recordkeeping Page 
at http://www.osha.gov/recordkeeping/stakeholdermeeting.html and under 
Docket No. OSHA-2010-0024 at http://www.regulations.gov.)
    As a result, if OSHA's electronic data submission system is 
designed to be compatible with other electronic systems that track and 
report establishment-specific injury and illness data, these 
establishments are unlikely to need the adjustment period this 
alternative would provide. In addition, paper submission would impede 
OSHA's ability to make the data public in timely way, because the data 
on the paper forms would have to be entered manually into the 
electronic data system. OSHA welcomes public comment on this 
alternative.
iv. Alternative D--Three-Year Phase-in of Electronic Reporting Under 
Proposed Sec.  1904.41(a)(2)
    The proposed Sec.  1904.41(a)(2) requires electronic reporting for 
establishments with 20 or more employees in designated industries. OSHA 
considered a phase-in of the electronic reporting requirement, under 
which these establishments would have the option of submitting data on 
paper forms for the first three years this proposed rule was in effect. 
A three-year phase-in would give time for these establishments to 
adjust to electronic reporting. On the other hand, paper submission 
would impede OSHA's ability to make the data public in timely way, 
because the data on the paper forms would have to be entered manually 
into the electronic data system. OSHA welcomes public comment on this 
alternative. It should be noted the current ODI allows for both paper 
and electronic submission. Approximately 30% of respondents submit 
their data by paper. This level of paper submission has been consistent 
for the past three years.
v. Alternative E--Widen the Scope of Establishments Required To Report 
Under Proposed Sec.  1904.41(a)(1)
    The proposed Sec.  1904.41(a)(1) applies to establishments with 250 
or more employees. OSHA considered widening the scope of establishments 
required to report under this proposed section to establishments with 
100 or more employees. This would more than triple the number of 
establishments required to report under this proposed section, 
increasing the number from 38,000 to 129,000. It would increase the 
number of injury and illness cases with incident report (OSHA Form 301) 
and Log (OSHA Form 300) data by nearly 50%, from 890,000 to 1,325,000.
    This alternative would greatly increase the amount of timely, 
establishment-specific injury/illness information available to the 
public. On the other hand, it would also greatly increase the number of 
establishments subject to the burden of quarterly reporting of records 
kept under Part 1904. OSHA welcomes public comment on this alternative.
vi. Alternative F--Narrow the Scope of Establishments Required To 
Report Under Proposed Sec.  1904.41(a)(1)
    The proposed Sec.  1904.41(a)(1) applies to establishments with 250 
or more employees. OSHA considered narrowing the scope of 
establishments required to report under this proposed section to 
establishments with 500 or more employees. This would decrease the 
number of establishments required to report under this proposed section 
by more than half, reducing the number from 38,000 to 13,800. It would 
also decrease the number of injury and illnesses cases with incident 
report (OSHA Form 301) and Log (OSHA Form 300) data by a third, from 
890,000 to 590,000.
    This alternative would greatly reduce the number of establishments 
subject to the burden of quarterly reporting of records kept under Part 
1904. On the other hand, it would also greatly reduce the amount of 
timely, establishment-specific injury/illness information available to 
the public. OSHA welcomes public comment on this alternative.
vii. Alternative G--Three-Step Process of Implementing the Reporting 
Requirements Under Proposed Sec.  1904.41(a)(1) and (2)
    OSHA considered a three-step process of implementing the reporting 
requirements under the proposed Sec.  1904.41(a)(1) and (2).
    The proposed Sec.  1904.41(a)(1) applies to establishments with 250 
or more employees, except establishments that are partially exempt from 
keeping injury and illness records under current Sec.  1904.2 (partial 
exemption for establishments in certain industries).
    The proposed Sec.  1904.41(a)(2) applies to establishments with 20 
or more employees in designated industries, i.e., high-hazard industry 
groups (classified at the four-digit level in the North American 
Industry Classification System (NAICS)) and/or high-hazard industry 
sectors (classified at the two-digit level in NAICS). (Note that, by 
definition, none of these establishments would be partially exempt 
under Sec.  1904.2.)
    For this proposed alternative, high-hazard industry groups (four-
digit NAICS) have rates of injuries and illnesses involving days away 
from work, restricted work activity, or job transfer (DART) that are 
greater than 2.0. High-hazard industry sectors (two-digit NAICS) 
include agriculture, forestry, fishing, and hunting; utilities; 
construction; manufacturing; and wholesale trade.
    In the first step of this three-step implementation process, 
reporting would be required only from the establishments in proposed 
Sec.  1904.41(a)(1) and (2) that are in high-hazard industry groups 
(four-digit NAICS with a DART rate greater than or equal to 2.0).
    Thus, initially, reporting would be required from two categories of 
establishments:
    1. Establishments with 250 or more employees, in a high-hazard 
industry group (four-digit NAICS). An establishment with 250 or more 
employees that is not in a high-hazard industry group (four-digit 
NAICS) would not be required to report.
    2. Establishments with 20 or more employees, in a high-hazard 
industry group (four-digit NAICS). An

[[Page 67265]]

establishment that had 20 or more employees and is in a high-hazard 
industry sector (two-digit NAICS), but not in a high-hazard industry 
group (four-digit NAICS), would not be required to report.
    In the second step of the three-step implementation process, OSHA 
would conduct an analysis, after a specified period of time, to assess 
the effectiveness, adequacy, and burden of the reporting requirements 
in the first step. The results of this analysis would then guide OSHA's 
next actions. For example, the results might support expanding the 
requirements to include all of the establishments in proposed Sec.  
1904.41(a)(1) and (2). Alternatively, the results might support 
modifying or eliminating the requirements for certain groups of 
employers or industries.
    The third step of the three-step implementation process would 
therefore depend on the results of OSHA's analysis. For the purposes of 
this alternative, OSHA assumes that the third step would require 
reporting from all of the establishments in proposed Sec.  
1904.41(a)(1) and (2). That is, the third step would add reporting from 
two categories of establishments:
    1. Establishments with 250 or more employees that are not in high-
hazard industry groups (four-digit NAICS) and are not partially-exempt. 
Establishments with 250 or more employees that are in high-hazard 
industry groups (two-digit NAICS) would already be reporting under the 
first step.
    2. Establishments with 20 or more employees that are in high-hazard 
industry sectors (two-digit NAICS) but are not in high-hazard industry 
groups (four-digit NAICS). Establishments with 20 or more employees 
that are in high-hazard industry groups (four-digit NAICS) would 
already be reporting under the first step.
    This three-step alternative would initially focus the regulation 
more narrowly on establishments in the highest-hazard industries. 
During the first step, the number of reporting establishments with 250 
or more employees would be over two-fifths less (22,000 establishments, 
compared to 38,000 in proposed Sec.  1904.41(a)(1)), and the number of 
reporting establishments with 20 or more employees in designated 
industries would be one-quarter less (335,000 establishments, compared 
to 440,000 in proposed Sec.  1904.41(a)(2)).
    On the other hand, this alternative would also initially reduce the 
public's access to timely, establishment-specific injury/illness 
information about the two categories of establishments that would not 
be required to report until the third step of the process, depending on 
the results of the analysis in the second step. There would be 16,000 
establishments subject to proposed Sec.  1904.41(a)(1) that would not 
report until the third step, and there would be 105,000 establishments 
subject to proposed Sec.  1904.41(a)(2) that would not report until the 
third step.
    In addition, the three-step implementation process would place a 
burden of uncertainty on these establishments, which would not be 
required to report under the first step but might be required to report 
under the third step, depending on the results of the analysis in the 
second step.
    OSHA welcomes public comment on this alternative.
viii. Alternative H--Narrow the Scope of the Reporting Requirements 
Under Proposed Sec.  1904.41(a)(1) and (2)
    The proposed Sec.  1904.41(a)(1) applies to all establishments with 
250 or more employees in all industries covered by the recordkeeping 
rule.
    The proposed Sec.  1904.41(a)(2) applies to establishments with 20 
or more employees in designated industries, i.e., high-hazard industry 
groups (classified at the four-digit level in the North American 
Industry Classification System (NAICS)) and/or high-hazard industry 
sectors (classified at the two-digit level in NAICS). High-hazard 
industry groups (four-digit NAICS) are defined as industries with rates 
of injuries and illnesses involving days away from work, restricted 
work activity, or job transfer (DART) that are greater than or equal to 
2.0. High-hazard industry sectors (two-digit NAICS) include 
agriculture, forestry, fishing, and hunting; utilities; construction; 
manufacturing; and wholesale trade.
    An alternative approach to defining the industry scope of these two 
sections is to limit the industry coverage to include only industry 
groups that meet a designated DART cut-off. This approach would not 
include coverage of designated industry sectors as a criterion. Thus, 
reporting would be required from two categories of establishments:
    1. Establishments with 250 or more employees, in a high-hazard 
industry group (four-digit NAICS) (quarterly reporting). An 
establishment with 250 or more employees that is not in a high-hazard 
industry group (four-digit NAICS) would not be required to report.
    2. Establishments with 20 or more employees, in a high-hazard 
industry group (four-digit NAICS) (annual reporting). An establishment 
with 20 or more employees that is not in a high-hazard industry group 
(four-digit NAICS), would not be required to report.
    This alternative would focus the regulation more narrowly on 
establishments in the highest-hazard industries. Using this approach, 
OSHA applied cut-off DART rates of 2.0 and 3.0 to 2009 BLS and CBP data 
and calculated the following coverage:

----------------------------------------------------------------------------------------------------------------
                                                                                                  Injuries and
                                                           Establishments     Establishments      illnesses in
                                                          with 20 or more    with 250 or more    establishments
                                                             employees          employees       with 250 or more
                                                                                                   employees
----------------------------------------------------------------------------------------------------------------
Proposed regulatory text...............................            440,000             38,000            890,000
DART >=2.0.............................................            335,000             22,000            667,000
DART >=3.0.............................................            152,000             10,000            229,000
----------------------------------------------------------------------------------------------------------------

Using a DART rate cut-off of 2.0, the following 55 industry groups that 
are subject to Sec.  1904.41(a)(1) and Sec.  1904.41(a)(2) under the 
main proposal would not be covered under this alternative:

[[Page 67266]]



                             2009 DART <2.0
------------------------------------------------------------------------
Recordkeeping covered NAICS
           (2007)                      Industry              2009 DART
------------------------------------------------------------------------
1131.......................  Timber Tract Operations....             1.7
1132.......................  Forest Nurseries and                    1.7
                              Gathering of Forest
                              Products.
1133.......................  Logging....................             1.9
1141.......................  Fishing....................             0.7
1142.......................  Hunting and Trapping.......             0.5
2211.......................  Electric Power Generation,              1.5
                              Transmission and
                              Distribution.
2362.......................  Nonresidential Building                 1.7
                              Construction.
2372.......................  Land Subdivision...........             0.8
2379.......................  Other Heavy and Civil                   1.4
                              Engineering Construction.
3122.......................  Tobacco Manufacturing......             1.9
3131.......................  Fiber, Yarn, and Thread                 1.6
                              Mills.
3132.......................  Fabric Mills...............             1.4
3141.......................  Textile Furnishings Mills..             1.9
3149.......................  Other Textile Product Mills             1.9
3151.......................  Apparel Knitting Mills.....             1.5
3152.......................  Cut and Sew Apparel                     1.3
                              Manufacturing.
3159.......................  Apparel Accessories and                 1.6
                              Other Apparel
                              Manufacturing.
3169.......................  Other Leather and Allied                1.7
                              Product Manufacturing.
3221.......................  Pulp, Paper, and Paperboard             1.4
                              Mills.
3231.......................  Printing and Related                    1.6
                              Support Activities.
3241.......................  Petroleum and Coal Products             0.9
                              Manufacturing.
3251.......................  Basic Chemical                          1.1
                              Manufacturing.
3252.......................  Resin, Synthetic Rubber,                1.4
                              and Artificial Synthetic
                              Fibers and Filaments
                              Manufacturing.
3253.......................  Pesticide, Fertilizer, and              1.8
                              Other Agricultural
                              Chemical Manufacturing.
3254.......................  Pharmaceutical and Medicine             1.1
                              Manufacturing.
3255.......................  Paint, Coating, and                     1.9
                              Adhesive Manufacturing.
3259.......................  Other Chemical Product and              1.3
                              Preparation Manufacturing.
3274.......................  Lime and Gypsum Product                 1.6
                              Manufacturing.
3311.......................  Iron and Steel Mills and                1.8
                              Ferroalloy Manufacturing.
3322.......................  Cutlery and Handtool                    1.8
                              Manufacturing.
3332.......................  Industrial Machinery                    1.6
                              Manufacturing.
3333.......................  Commercial and Service                  1.9
                              Industry Machinery
                              Manufacturing.
3335.......................  Metalworking Machinery                  1.7
                              Manufacturing.
3336.......................  Engine, Turbine, and Power              1.5
                              Transmission Equipment
                              Manufacturing.
3341.......................  Computer and Peripheral                 0.4
                              Equipment Manufacturing.
3342.......................  Communications Equipment                0.8
                              Manufacturing.
3343.......................  Audio and Video Equipment               0.6
                              Manufacturing.
3344.......................  Semiconductor and Other                 0.9
                              Electronic Component
                              Manufacturing.
3345.......................  Navigational, Measuring,                0.8
                              Electromedical, and
                              Control Instruments
                              Manufacturing.
3346.......................  Manufacturing and                       1.1
                              Reproducing Magnetic and
                              Optical Media.
3352.......................  Household Appliance                     1.7
                              Manufacturing.
3359.......................  Other Electrical Equipment              1.6
                              and Component
                              Manufacturing.
3364.......................  Aerospace Product and Parts             1.8
                              Manufacturing.
3391.......................  Medical Equipment and                   1.2
                              Supplies Manufacturing.
4232.......................  Furniture and Home                      1.6
                              Furnishing Merchant
                              Wholesalers.
4234.......................  Professional and Commercial             1.1
                              Equipment and Supplies
                              Merchant Wholesalers.
4236.......................  Electrical and Electronic               1.0
                              Goods Merchant Wholesalers.
4237.......................  Hardware, and Plumbing and              1.5
                              Heating Equipment and
                              Supplies Merchant
                              Wholesalers.
4238.......................  Machinery, Equipment, and               1.6
                              Supplies Merchant
                              Wholesalers.
4241.......................  Paper and Paper Product                 1.7
                              Merchant Wholesalers.
4242.......................  Drugs and Druggists'                    1.4
                              Sundries Merchant
                              Wholesalers.
4243.......................  Apparel, Piece Goods, and               1.1
                              Notions Merchant
                              Wholesalers.
4246.......................  Chemical and Allied                     1.6
                              Products Merchant
                              Wholesalers.
4247.......................  Petroleum and Petroleum                 1.8
                              Products Merchant
                              Wholesalers.
4251.......................  Wholesale Electronic                    1.0
                              Markets and Agents and
                              Brokers.
------------------------------------------------------------------------

    Using a DART rate cut-off of 3.0, the following 133 industry groups 
that are subject to Sec.  1904.41(a)(1) and Sec.  1904.41(a)(2) under 
the main proposal would not be covered under this alternative:

                             2009 DART <3.0
------------------------------------------------------------------------
Recordkeeping covered NAICS
           (2007)                      Industry              2009 DART
------------------------------------------------------------------------
1113.......................  Fruit and Tree Nut Farming.             2.6
1114.......................  Greenhouse, Nursery, and                2.7
                              Floriculture Production.
1119.......................  Other Crop Farming.........             2.2

[[Page 67267]]

 
1121.......................  Cattle Ranching and Farming             2.7
1122.......................  Hog and Pig Farming........             2.8
1124.......................  Sheep and Goat Farming.....             2.8
1125.......................  Aquaculture................             2.8
1131.......................  Timber Tract Operations....             1.7
1132.......................  Forest Nurseries and                    1.7
                              Gathering of Forest
                              Products.
1133.......................  Logging....................             1.9
1141.......................  Fishing....................             0.7
1142.......................  Hunting and Trapping.......             0.5
1151.......................  Support Activities for Crop             2.8
                              Production.
1152.......................  Support Activities for                  2.7
                              Animal Production.
1153.......................  Support Activities for                  2.0
                              Forestry.
2211.......................  Electric Power Generation,              1.5
                              Transmission and
                              Distribution.
2212.......................  Natural Gas Distribution...             2.5
2361.......................  Residential Building                    2.1
                              Construction.
2362.......................  Nonresidential Building                 1.7
                              Construction.
2371.......................  Utility System Construction             2.4
2372.......................  Land Subdivision...........             0.8
2373.......................  Highway, Street, and Bridge             2.4
                              Construction.
2379.......................  Other Heavy and Civil                   1.4
                              Engineering Construction.
2382.......................  Building Equipment                      2.3
                              Contractors.
2383.......................  Building Finishing                      2.7
                              Contractors.
2389.......................  Other Specialty Trade                   2.4
                              Contractors.
3112.......................  Grain and Oilseed Milling..             2.6
3118.......................  Bakeries and Tortilla                   2.9
                              Manufacturing.
3119.......................  Other Food Manufacturing...             2.8
3122.......................  Tobacco Manufacturing......             1.9
3131.......................  Fiber, Yarn, and Thread                 1.6
                              Mills.
3132.......................  Fabric Mills...............             1.4
3133.......................  Textile and Fabric                      2.0
                              Finishing and Fabric
                              Coating Mills.
3141.......................  Textile Furnishings Mills..             1.9
3149.......................  Other Textile Product Mills             1.9
3151.......................  Apparel Knitting Mills.....             1.5
3152.......................  Cut and Sew Apparel                     1.3
                              Manufacturing.
3159.......................  Apparel Accessories and                 1.6
                              Other Apparel
                              Manufacturing.
3162.......................  Footwear Manufacturing.....             2.9
3169.......................  Other Leather and Allied                1.7
                              Product Manufacturing.
3212.......................  Veneer, Plywood, and                    2.4
                              Engineered Wood Product
                              Manufacturing.
3221.......................  Pulp, Paper, and Paperboard             1.4
                              Mills.
3222.......................  Converted Paper Product                 2.0
                              Manufacturing.
3231.......................  Printing and Related                    1.6
                              Support Activities.
3241.......................  Petroleum and Coal Products             0.9
                              Manufacturing.
3251.......................  Basic Chemical                          1.1
                              Manufacturing.
3252.......................  Resin, Synthetic Rubber,                1.4
                              and Artificial Synthetic
                              Fibers and Filaments
                              Manufacturing.
3253.......................  Pesticide, Fertilizer, and              1.8
                              Other Agricultural
                              Chemical Manufacturing.
3254.......................  Pharmaceutical and Medicine             1.1
                              Manufacturing.
3255.......................  Paint, Coating, and                     1.9
                              Adhesive Manufacturing.
3256.......................  Soap, Cleaning Compound,                2.1
                              and Toilet Preparation
                              Manufacturing.
3259.......................  Other Chemical Product and              1.3
                              Preparation Manufacturing.
3261.......................  Plastics Product                        2.5
                              Manufacturing.
3272.......................  Glass and Glass Product                 2.8
                              Manufacturing.
3274.......................  Lime and Gypsum Product                 1.6
                              Manufacturing.
3279.......................  Other Nonmetallic Mineral               2.8
                              Product Manufacturing.
3311.......................  Iron and Steel Mills and                1.8
                              Ferroalloy Manufacturing.
3313.......................  Alumina and Aluminum                    2.7
                              Production and Processing.
3322.......................  Cutlery and Handtool                    1.8
                              Manufacturing.
3324.......................  Boiler, Tank, and Shipping              2.8
                              Container Manufacturing.
3325.......................  Hardware Manufacturing.....             2.5
3326.......................  Spring and Wire Product                 2.3
                              Manufacturing.
3327.......................  Machine Shops; Turned                   2.1
                              Product; and Screw, Nut,
                              and Bolt Manufacturing.
3328.......................  Coating, Engraving, Heat                2.8
                              Treating, and Allied
                              Activities.
3329.......................  Other Fabricated Metal                  2.2
                              Product Manufacturing.
3331.......................  Agriculture, Construction,              2.3
                              and Mining Machinery
                              Manufacturing.
3332.......................  Industrial Machinery                    1.6
                              Manufacturing.
3333.......................  Commercial and Service                  1.9
                              Industry Machinery
                              Manufacturing.
3334.......................  Ventilation, Heating, Air-              2.5
                              Conditioning, and
                              Commercial Refrigeration
                              Equipment Manufacturing.
3335.......................  Metalworking Machinery                  1.7
                              Manufacturing.
3336.......................  Engine, Turbine, and Power              1.5
                              Transmission Equipment
                              Manufacturing.
3339.......................  Other General Purpose                   2.1
                              Machinery Manufacturing.
3341.......................  Computer and Peripheral                 0.4
                              Equipment Manufacturing.

[[Page 67268]]

 
3342.......................  Communications Equipment                0.8
                              Manufacturing.
3343.......................  Audio and Video Equipment               0.6
                              Manufacturing.
3344.......................  Semiconductor and Other                 0.9
                              Electronic Component
                              Manufacturing.
3345.......................  Navigational, Measuring,                0.8
                              Electromedical, and
                              Control Instruments
                              Manufacturing.
3346.......................  Manufacturing and                       1.1
                              Reproducing Magnetic and
                              Optical Media.
3351.......................  Electric Lighting Equipment             2.0
                              Manufacturing.
3352.......................  Household Appliance                     1.7
                              Manufacturing.
3353.......................  Electrical Equipment                    2.0
                              Manufacturing.
3359.......................  Other Electrical Equipment              1.6
                              and Component
                              Manufacturing.
3363.......................  Motor Vehicle Parts                     2.6
                              Manufacturing.
3364.......................  Aerospace Product and Parts             1.8
                              Manufacturing.
3365.......................  Railroad Rolling Stock                  2.4
                              Manufacturing.
3369.......................  Other Transportation                    2.4
                              Equipment Manufacturing.
3371.......................  Household and Institutional             2.8
                              Furniture and Kitchen
                              Cabinet Manufacturing.
3372.......................  Office Furniture (including             2.4
                              Fixtures) Manufacturing.
3379.......................  Other Furniture Related                 2.5
                              Product Manufacturing.
3391.......................  Medical Equipment and                   1.2
                              Supplies Manufacturing.
3399.......................  Other Miscellaneous                     2.0
                              Manufacturing.
4231.......................  Motor Vehicle and Motor                 2.2
                              Vehicle Parts and Supplies
                              Merchant Wholesalers.
4232.......................  Furniture and Home                      1.6
                              Furnishing Merchant
                              Wholesalers.
4233.......................  Lumber and Other                        2.8
                              Construction Materials
                              Merchant Wholesalers.
4234.......................  Professional and Commercial             1.1
                              Equipment and Supplies
                              Merchant Wholesalers.
4236.......................  Electrical and Electronic               1.0
                              Goods Merchant Wholesalers.
4237.......................  Hardware, and Plumbing and              1.5
                              Heating Equipment and
                              Supplies Merchant
                              Wholesalers.
4238.......................  Machinery, Equipment, and               1.6
                              Supplies Merchant
                              Wholesalers.
4239.......................  Miscellaneous Durable Goods             2.1
                              Merchant Wholesalers.
4241.......................  Paper and Paper Product                 1.7
                              Merchant Wholesalers.
4242.......................  Drugs and Druggists'                    1.4
                              Sundries Merchant
                              Wholesalers.
4243.......................  Apparel, Piece Goods, and               1.1
                              Notions Merchant
                              Wholesalers.
4245.......................  Farm Product Raw Material               2.2
                              Merchant Wholesalers.
4246.......................  Chemical and Allied                     1.6
                              Products Merchant
                              Wholesalers.
4247.......................  Petroleum and Petroleum                 1.8
                              Products Merchant
                              Wholesalers.
4249.......................  Miscellaneous Nondurable                2.1
                              Goods Merchant Wholesalers.
4251.......................  Wholesale Electronic                    1.0
                              Markets and Agents and
                              Brokers.
4413.......................  Automotive Parts,                       2.5
                              Accessories, and Tire
                              Stores.
4421.......................  Furniture Stores...........             2.5
4422.......................  Home Furnishings Stores....             2.1
4442.......................  Lawn and Garden Equipment               2.3
                              and Supplies Stores.
4521.......................  Department Stores..........             2.6
4533.......................  Used Merchandise Stores....             2.7
4832.......................  Inland Water Transportation             2.2
4871.......................  Scenic and Sightseeing                  2.4
                              Transportation, Land.
4872.......................  Scenic and Sightseeing                  2.2
                              Transportation, Water.
4881.......................  Support Activities for Air              2.7
                              Transportation.
4882.......................  Support Activities for Rail             2.9
                              Transportation.
4884.......................  Support Activities for Road             2.8
                              Transportation.
4922.......................  Local Messengers and Local              2.5
                              Delivery.
5152.......................  Cable and Other                         2.4
                              Subscription Programming.
5311.......................  Lessors of Real Estate.....               2
5321.......................  Automotive Equipment Rental             2.2
                              and Leasing.
5322.......................  Consumer Goods Rental......             2.7
5617.......................  Services to Buildings and               2.4
                              Dwellings.
5629.......................  Remediation and Other Waste             2.1
                              Management Services.
6216.......................  Home Health Care Services..             2.0
6221.......................  General Medical and                     2.8
                              Surgical Hospitals.
6223.......................  Specialty (except                       2.9
                              Psychiatric and Substance
                              Abuse) Hospitals.
7132.......................  Gambling Industries........             2.0
7211.......................  Traveler Accommodation.....             2.6
8113.......................  Commercial and Industrial               2.6
                              Machinery and Equipment
                              (except Automotive and
                              Electronic) Repair and
                              Maintenance.
8123.......................  Drycleaning and Laundry                 2.5
                              Services.
------------------------------------------------------------------------

    OSHA welcomes public comment on this alternative.
ix. Alternative I--Enterprise-Wide Submission
    OSHA is considering a provision to require some enterprises with 
multiple establishments to collect and submit some Part 1904 data for 
those establishments. This provision would apply to enterprises with a 
minimum threshold number of establishments (such as five or more) that 
are required

[[Page 67269]]

to keep records under Part 1904. These enterprises would be required to 
collect OSHA Form 300A (log summary) data from each of their 
establishments that are required to keep injury/illness records under 
Part 1904. The enterprise would then submit the data from each 
establishment to OSHA. For example, if an enterprise had seven 
establishments required to keep injury/illness records under Part 1904, 
the enterprise would submit seven sets of data, one for each 
establishment.
    This requirement would apply to enterprises with multiple levels 
within the organization. For example, if XYZ Chemical Inc. owns three 
establishments, but is itself owned by XYZ Inc., which has several 
wholly owned subsidiaries, then only XYZ Inc. would have to report, but 
would have to report for all establishments it controls. It should be 
noted that these requirements would only apply to establishments within 
the jurisdiction of OSHA and subject to the recordkeeping rule. 
Establishments within the corporate structure but located on foreign 
soil would not be subject to the requirement.
    An enterprise-wide approach to workplace safety and health is 
useful for both OSHA and the enterprise. OSHA has several enterprise-
wide programs, including corporate-wide settlement agreements, VPP 
corporate recognition, Partnerships, and the Severe Violator 
Enforcement Program (SVEP). OSHA believes that enterprise-wide programs 
can significantly improve workplace safety and health, especially in 
cases of employers with multiple establishments that have similar real 
or potential hazards. In addition, roughly 100 multi-establishment 
enterprises currently ask to submit their ODI data through one 
corporate contact. For these enterprises, OSHA mails the ODI surveys 
for all of the establishments to the corporate contact, which collects 
the data from the establishments and then submits the data to OSHA.
    OSHA believes that the requirement for enterprise-wide submission 
of injury and illness data would provide two benefits not available 
under proposed Sec.  1904.41(a)(2) (Annual electronic submission of 
OSHA annual summary form (Form 300A) by establishments with 20 or more 
employees in designated industries).
    First, the provision would improve employer awareness and oversight 
of workplace safety and health at the enterprise level. Many multi-
establishment enterprises already collect and analyze establishment-
level injury and illness data, but many do not. In some cases, multi-
establishment enterprises only learn of an establishment's failure to 
provide safe and healthful working conditions as a result of a major 
incident or an OSHA enforcement action. Under this portion of the 
proposal, all multi-establishment enterprises subject to the 
requirement would be obligated to collect establishment-level data. 
This would enable the enterprises to monitor the safety and health 
performance of their establishments more intelligently and to deploy 
existing safety and health resources more effectively.
    Second, this provision would enable OSHA to calculate enterprise-
wide injury and illness rates, as well as the establishment-specific 
rates OSHA would be able to calculate under proposed Sec.  
1904.41(a)(1) (Quarterly electronic submission of Part 1904 records by 
establishments with 250 or more employees) and proposed Sec.  
1904.41(a)(2) (Annual electronic submission of OSHA annual summary form 
(Form 300A) by establishments with 20 or more employees in designated 
industries). Using enterprise-level data, OSHA could identify and work 
with enterprises that have high rates and/or large numbers of injuries 
and illnesses, either enterprise-wide or at multiple specific 
establishments. This would allow OSHA to leverage a limited number of 
interventions into improved compliance and reductions in injuries and 
illnesses. The interventions could include focused inspections, 
targeted inspections, referrals to state on-site consultation programs, 
enhanced compliance assistance, partnerships, and other activities.
    In addition, enterprise-wide collection is a logical extension of 
the current requirement in Sec.  1904.32(b)(3) for a company 
executive's certification of the annual summary for the establishment. 
According to Sec.  1904.32(b)(4), the certifying company executive must 
be either the owner of the company, an officer of the corporation, the 
highest-ranking company official working at the establishment, or the 
immediate supervisor of the highest-ranking company official working at 
the establishment. While, as discussed above, many multi-establishment 
enterprises already examine their establishments' annual summaries, 
others do not. Correct and complete data are necessary for OSHA, 
employers, and employees to identify, understand, and control hazards 
in the workplaces, as well as for safety and health professionals to 
analyze trends, identify emerging hazards, and develop solutions.
Issues
(1) Definition of the Relationship Between the Enterprise and the 
Establishment(s)
    Under this provision, an enterprise with multiple establishments 
would collect Part 1904 injury and illness data from those 
establishments. However, although Part 1904 currently includes a 
definition of an ``establishment'', there is no definition of an 
``enterprise'' in Part 1904. Therefore, to implement this provision, 
OSHA would have to define the term ``enterprise''.
    Under Sec.  1904.46, an establishment is ``a single physical 
location where business is conducted or where services or industrial 
operations are performed. For activities where employees do not work at 
a single physical location, such as construction; transportation; 
communications, electric, gas and sanitary services; and similar 
operations, the establishment is represented by main or branch offices, 
terminals, stations, etc. that either supervise such activities or are 
the base from which personnel carry out these activities.''
    The Statistics of U.S. Businesses (SUSB) program at the U.S. Census 
Bureau uses the same definition of an establishment as a single 
physical location where business is conducted or where services or 
industrial operations are performed. The SUSB is an annual series that 
provides detailed annual data for U.S. business establishments by 
geography, industry, and establishment size.
    There is currently no definition of an enterprise in Part 1904. 
However, the SUSB defines an enterprise as ``a business organization 
consisting of one or more domestic establishments that were specified 
under common ownership or control.'' \1\ For firms with only one 
establishment, the enterprise and the establishment are the same. For 
firms with more than one establishment, each multi-establishment 
company forms one enterprise.
---------------------------------------------------------------------------

    \1\ Statistics of U.S. Businesses, Definitions, United States 
Census Bureau http://www.census.gov/econ/susb/definitions.html.
---------------------------------------------------------------------------

    Using this definition of an enterprise would require OSHA also to 
define what constitutes ``ownership or control''. This definition would 
need to be clear and easy to use, and it would also need to minimize 
the chance of multiple submissions of injury/illness data for the same 
establishment.
    One possible measure of ownership or control is the enterprise's 
percentage of ownership of the establishment. In this case, the 
definition could be ``For the

[[Page 67270]]

purposes of this section, if an enterprise has an ownership share 
greater than 50% in an establishment, it is considered to have 
ownership or control of that establishment.'' For example, if 
Corporation A owns a majority of the stock of subsidiary Corporation B, 
the establishments owned and operated by Corporation B would be 
considered part of the Corporation A enterprise.
    Instead of ``enterprise'', the U.S. Equal Employment Opportunity 
Commission (EEOC) uses the term ``multi-establishment employer'' and 
defines it as an employer ``doing business at more than one 
establishment''.\2\ For multi-establishment employers, the 
``headquarters office'' must collect the forms from the establishments, 
or the ``parent corporation'' must collect the forms from its 
``subsidiary holdings''. The EEOC defines ``parent corporation'' as 
``any corporation which owns all or the majority stock of another 
corporation so that the latter stands in the relation to it of a 
subsidiary.''
---------------------------------------------------------------------------

    \2\ EEO-01: How to File, http.://www.eeoc.gov/employers/eeo1survey/howtofile.cfm, accessed 11/5/2012.
---------------------------------------------------------------------------

    OSHA would consider using some of these definitions for the purpose 
of this section. However, other measures and definitions are possible. 
OSHA welcomes comments on this issue.
(2) Other Issues
    OSHA has identified two other issues that may affect the 
feasibility and burden associated with an enterprise-wide collection.
    Occupation: For calculating burden, OSHA ordinarily assumes that 
recordkeeping tasks at the establishment level are performed by human 
resource specialists (BLS Standard Occupation Code 13-1071). However, 
the proposed provision would require recordkeeping tasks at the 
enterprise level. OSHA seeks information on the occupation or 
occupations that would best describe the people who would perform these 
tasks at the enterprise level.
    Duplication: The Paperwork Reduction Act (PRA) requires agencies to 
identify and minimize any duplication in the collection of information. 
The enterprise-wide reporting provision, in combination with proposed 
Sec.  1904.41(a)(2), could lead to the possibility that establishment-
specific data would be submitted to the Agency more than once. For 
example, an establishment might submit its summary data to OSHA in 
compliance with proposed Sec.  1904.41(a)(2), while the enterprise 
submitted the same data to OSHA in compliance with this proposed 
provision. One solution to this problem would be regulatory text 
explaining that the establishment is not required to submit data under 
Sec.  1904.41(a)(2) if the enterprise is required to submit the 
establishment's data under the proposed provision. However, the Agency 
recognizes that figuring out who should submit the establishment's data 
would require coordination between a multi-establishment enterprise and 
its establishments. OSHA seeks information on the burden associated 
with this coordination.
Possible Additional Regulatory Text
    1904.41(a)(4) Annual electronic submission of OSHA annual summary 
form (Form 300A) by enterprises with five (5) or more establishments. 
If your enterprise had ownership or control of five (5) or more 
establishments covered by the recordkeeping rule during the entirety of 
the previous calendar year, you must electronically send to OSHA or 
OSHA's designee, once a year, the information from the completed annual 
summary form (Form 300A) for each controlled establishment, including 
the enterprise location. The information must be submitted no later 
than March 2 of the year after the calendar year covered by the form.
    1904.41(b)(7) What is the definition of ``ownership or control'' in 
Sec.  1904.41(a)(4)? Ownership or control means that the enterprise has 
an ownership share of greater than 50% in the establishment.
    1904.41(b)(8) If Sec.  1904.41(a)(4) requires the enterprise to 
submit an establishment's summary data, does the establishment also 
have to submit the summary data under Sec.  1904.41(a)(1)(v) or Sec.  
1904(a)(2)? No, the summary data (Form 300A) for the establishment 
should only be submitted once, by the enterprise. However, 
establishments subject to Sec.  1904.41(a)(1) must submit all of the 
other information required by that provision.
    1904.41(b)(9) If an establishment is partially exempted from the 
recordkeeping requirements under Sec.  1904.2, does the enterprise have 
to submit data for that establishment? No, the enterprise is only 
required to submit data from establishments required to maintain the 
injury and illness records.
Questions
    OSHA seeks comment on the following questions:
     How hard is it for a multi-establishment enterprise to 
identify all of the establishments under its ownership or control?
     Are there types of multi-establishment firms or multi-
level firms for which this would represent a greater burden than for 
others?
     Would the burden on multi-establishment enterprises to 
collect and submit their OSHA data be more, less, or the same as the 
burden to collect and submit data from their establishments to the 
EEOC?
     Which occupation or occupations would describe the 
employee(s) likely to perform the task of identifying all of the 
establishments under its ownership or control?
     How probable is it that the employee(s) likely to perform 
this task for OSHA's requirements would be performing the same task for 
the EEOC's requirements?
     Which occupation or occupations would describe the 
employee(s) likely to perform the task of collecting, compiling, and 
submitting the establishment-specific annual summary data from each 
establishment under the enterprise's ownership or control?
     How should OSHA define ``ownership or control''?
     At least how many establishments should an enterprise have 
in order to be subject to a requirement for enterprise-wide submission 
of establishment-specific data?
     Would the burden of enterprise-wide collection increase as 
the number of establishments per enterprise increases, and if so, how?
     Should the requirement include a minimum establishment 
size? For example, the requirement could apply to enterprises with 5 or 
more establishments, but only if each establishment has 10 or more 
employees.
     Should the requirement include a minimum enterprise-wide 
employment size? For example, the requirement could apply only if total 
employment for the whole enterprise, including all of the 
establishments belonging to the enterprise, is 50 employees or more.
     To what extent do enterprises already collect 
establishment-specific injury/illness data from all of their 
establishments?
     To what extent do enterprises already collect other 
establishment-specific data from all of their establishments for the 
purpose of reporting the data to the government?
     Do enterprises generally know their corporate linkage 
identifiers (i.e., their Universal DUNS number)? How much additional 
burden would it be for the enterprise to provide this information?
     What special circumstances apply to organizations such as 
holding companies and private equity firms? Do these types of 
organizations play a role

[[Page 67271]]

in the occupational safety and health of the companies they control?
     What other identifiers do enterprises currently use, or 
could enterprises use, for submitting data to the government?
3. Questions
    OSHA welcomes comments and data from the public regarding any 
aspect of the proposed requirement for electronic submission of Part 
1904 injury and illness records. More specifically, the following 
questions are relevant to this rulemaking:
     What are the implications of requiring all data to be 
submitted electronically? This proposed rule would be among the first 
in the federal government without a paper submission option.
     More current BLS injury and illness data will be available 
at the time of the final rulemaking. Use of newer data may result in 
changes to the proposed industry coverage. Should OSHA use the most 
current data available in determining coverage for its final rule? 
Would this leave affected entities without proper notice and the 
opportunity to provide substantive comment?
     Should the electronic submission requirement be phased in, 
with a paper submission option available for a certain period of time 
at the beginning for some or all of the establishments subject to the 
proposed rule, or should the electronic submission requirement take 
effect immediately?
     What are the implications of a phased-in electronic 
submission requirement versus an immediate electronic submission 
requirement for establishments subject to proposed Sec.  1904.41(a)(1) 
Quarterly electronic submission of Part 1904 records by establishments 
with 250 or more employees?
     What are the implications of a phased-in electronic 
submission requirement versus an immediate electronic submission 
requirement for establishments subject to proposed Sec.  1904.41(a)(2) 
Annual electronic submission of OSHA annual summary form (Form 300A) by 
establishments with 20 or more employees in designated industries?
     How should the electronic data submission system be 
designed? How can OSHA create a system that is easy to use and 
compatible with other electronic systems that track and report 
establishment-specific injury and illness data?
     Should the electronic data submission system be designed 
to include updates? Sec.  1904.33(b) requires employers to update OSHA 
Logs to include newly-discovered recordable injuries or illnesses and 
to show any changes that have occurred in the classification of 
previously-recorded injuries and illnesses.
     How can OSHA use the electronic submission requirement to 
improve the accuracy of injury and illness records by encouraging 
careful reporting and recording of work-related injuries and illnesses?
     How should OSHA design an effective quality assurance 
program for the electronic submission of injury and illness records?
     What additional steps, if any, should the Agency take to 
protect employee privacy interests?
     Are there views on the issue of OSHA recordkeeping forms 
and confidential commercial information?
     Which categories of information, from which OSHA-required 
form, would it be useful to publish?
     What analytical tools could be developed and provided to 
employers to increase their ability to effectively use the injury and 
illness data they submit electronically?
     How can OSHA help employers, especially small-business 
employers, to comply with the requirements of electronic data 
submission of their injury and illness records? Would training help, 
and if so, what kind?
     Should this data collection be limited to the records 
required under Part 1904? Are there other required OSHA records that 
could be collected and made available to the public in order to improve 
workplace safety and health?
     For the proposed Sec.  1904.41(a)(1) (Quarterly electronic 
submission of Part 1904 records by establishments with 250 or more 
employees), what would be the advantages and disadvantages of making 
submission monthly, rather than quarterly?
     For the proposed Sec.  1904.41(a)(1) (Quarterly electronic 
submission of Part 1904 records by establishments with 250 or more 
employees), what would be the advantages and disadvantages of making 
submission annual, rather than quarterly?
     For the proposed Sec.  1904.41(a)(1) (Quarterly electronic 
submission of Part 1904 records by establishments with 250 or more 
employees), is 250 or more employees the appropriate size criterion? 
How much burden would this impose on establishments with 250-500 
employees? If the size criterion were lowered to 100 or more employees, 
how much burden would this impose on establishments with 100-250 
employees?
     Should the designated industries for proposed Sec.  
1904.41(a)(2) (Annual electronic submission of OSHA annual summary form 
(Form 300A) by establishments with 20 or more employees in designated 
industries) remain the same each year, or should the list be adjusted 
each year to reflect the most current BLS injury and illness data? If 
so, how could OSHA best inform affected establishments about the 
adjustments?
     How can OSHA help employees and potential employees use 
the data collected under this proposed rule?

V. Preliminary Economic Analysis and Regulatory Flexibility 
Certification

a. Introduction

    Executive Orders 12866 and 13563 require that OSHA estimate the 
benefits, costs, and net benefits of proposed regulations. Executive 
Orders 12866 and 13563, the Regulatory Flexibility Act, and the 
Unfunded Mandates Reform Act also require OSHA to estimate the costs, 
assess the benefits, and analyze the impacts of certain rules that the 
Agency promulgates. Executive Orders 12866 and 13563 direct agencies to 
assess all costs and benefits of available regulatory alternatives and, 
if regulation is necessary, to select regulatory approaches that 
maximize net benefits (including potential economic, environmental, 
public health and safety effects, distributive impacts, and equity). 
Executive Order 13563 emphasizes the importance of quantifying both 
costs and benefits, reducing costs, harmonizing rules, and promoting 
flexibility.
    OSHA estimates that this rule will have economic costs of $11.9 
million per year, including $10.5 million per year to the private 
sector, with costs of $183 per year for affected establishments with 
250 or more employees and $9 per year for affected establishments with 
20 or more employees in designated industries. The Agency believes that 
the annual benefits, while unquantified, significantly exceed the 
annual costs.
    The proposed rule is not a ``significant regulatory action'' under 
Executive Order 12866 or the Unfunded Mandates Reform Act (UMRA) (2 
U.S.C. 1532(a)), 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 
UMRA or the Congressional Review Act for a significant regulatory 
action or major rule. This Preliminary Economic

[[Page 67272]]

Analysis (PEA) addresses the costs, benefits, and economic impacts of 
the proposed rule.
    The proposed rule will make three changes to the existing recording 
and reporting requirements in Part 1904.
    First, OSHA will require establishments that are required to keep 
injury and illness records under Part 1904, and that had 250 or more 
employees in the previous year, to electronically submit information 
from all of these required records to OSHA or OSHA's designee, on a 
quarterly basis.
    Second, OSHA will require establishments that are required to keep 
injury and illness records under Part 1904, had 20 or more employees in 
the previous year, and are in certain designated industries, to 
electronically submit the information from the OSHA annual summary form 
(Form 300A) to OSHA or OSHA's designee, on an annual basis. This 
requirement will replace OSHA's annual illness and injury survey, 
authorized by the current version of 29 CFR 1904.41.
    Third, OSHA will require all employers who receive notification 
from OSHA to electronically submit information from their injury and 
illness records to OSHA or OSHA's designee.
    The proposed rule does not add to or change any employer's 
obligation to complete, retain, and certify injury and illness records. 
The proposed rule also does not add to or change the recording criteria 
or definitions for these records. The only change is that, under 
certain circumstances, employers will be obligated to transmit 
information from these records to OSHA in an electronic format (either 
a file or by a secure Web page). Many employers are already doing this 
through the OSHA Data Initiative and the BLS Survey of Occupational 
Injuries and Illnesses.
    The electronic submission of information to OSHA would be a 
relatively simple and quick matter. In most cases, submitting 
information to OSHA would require several basic steps: (1) Logging on 
to OSHA's web-based submission system; (2) entering basic establishment 
information into the system; (3) copying the required injury and 
illness information from the establishment's paper forms into the 
electronic submission forms; and (4) hitting a button to submit the 
information to OSHA. In many cases, especially for large 
establishments, OSHA data are already kept electronically, so step 3, 
which is likely the most time-intensive, would not be necessary. In 
those cases, the establishment would be able to submit its electronic 
information, in the format in which it is kept, to OSHA without having 
to transfer it into OSHA's online format. The submission system, as 
anticipated, would also save an establishment's information from one 
submission to the next, so step 2 might be eliminated for most 
establishments after the first submission.

b. Costs

1. Sec.  1904.41(a)(1)--Quarterly Electronic Submission of Part 1904 
Records by Establishments With 250 or More Employees
    To obtain the estimated cost of electronic data submission per 
establishment, OSHA began by multiplying the compensation per hour (in 
dollars) of the person expected to perform the task of electronic 
submission by the time required for the electronic data submission. 
OSHA then multiplied this cost per establishment by the estimated 
number of establishments that would be required to submit data, to 
obtain the total estimated costs of this part of the proposed rule.
    To estimate the compensation of the person expected to perform the 
task of electronic data submission, OSHA assumed that recordkeeping 
tasks are most commonly performed by a Human Resource, Training, and 
Labor Relations Specialist, Not Elsewhere Classified (Human Resources 
Specialist). OSHA made the same assumption in the PEA for the proposed 
rule on restoring a column to the OSHA 300 Log that employers would use 
to record work-related musculoskeletal disorders (MSDs) (75 FR 10738-
10739 (March 9, 2010)). OSHA estimated compensation using May 2008 data 
from the BLS Occupational Employment Survey (OES), reporting a mean 
hourly wage of $28 for Human Resources Specialists, and June 2009 data 
from the BLS National Compensation Survey, reporting a mean fringe 
benefit factor of 1.43 for civilian workers in general. OSHA multiplied 
the mean hourly wage ($28) by the mean fringe benefit factor (1.43) to 
obtain an estimated total compensation (wages and benefits) for Human 
Resources Specialists of $40.04 per hour ([$28 per hour] x 1.43).
    OSHA recognizes that not all firms assign the responsibility for 
recordkeeping to a Human Resources Specialist. For example, a smaller 
firm may use a bookkeeper, while a larger firm may use an occupational 
safety and health specialist. However, OSHA believes that the 
calculated cost of $40.04 per hour is a reasonable estimate of the 
hourly compensation of a representative recordkeeper. OSHA welcomes 
comments on the issue of hourly compensation costs for representative 
recordkeepers.
    For time required for the data submission, OSHA used the estimated 
unit time requirements reported by BLS in their paperwork burden 
analysis for the Survey of Occupational Injuries and Illnesses (SOII) 
(OMB Control Number 1220-0045, expires October 31, 2013).\3\ BLS 
estimated 10 minutes per recordable injury/illness case for electronic 
submission of the information on Form 301 (Injury and Illness Incident 
Report). BLS also estimated 10 minutes per establishment, total, for 
electronic submission of the information on both Form 300 (Log of Work-
Related Injuries and Illnesses) and 300A (Summary of Work-Related 
Injuries and Illnesses). OSHA believes that this may overestimate the 
time required for electronic submission of Form 300 and 300A 
information to OSHA, because each establishment's annual submissions 
will consist of four submissions of Form 300 information but only one 
submission of Form 300A information. However, OSHA assumes that most of 
the time required for submission of Form 300A information will be spent 
on the submission process (i.e., logging on and off the data submission 
site, assuring the accuracy of log-on information, and so on), rather 
than on entry of the limited amount of information on the form. 
Therefore, OSHA considers it appropriate to use the BLS estimate.
---------------------------------------------------------------------------

    \3\ The ODI paperwork analysis (1218-0209) takes an average time 
of 10 minutes per response for submitting Form 300A data. The ODI 
does not require submission of Form 301 data. The 10 minute estimate 
form the ODI is equal to the 10 minute estimate from the BLS SOII 
for submission of the same data.
---------------------------------------------------------------------------

    Using the information on estimated hourly compensation of 
recordkeepers and estimated time required for data submission, OSHA 
calculated that the estimated cost per establishment with 250 or more 
workers for quarterly data submission of the information on Forms 300 
and 300A would be $26.69 per year ([10 minutes per data submission] x 
[1 hour per 60 minutes] x [$40.04 per hour] x [4 data submissions per 
year]). In addition, the estimated cost per recordable injury/illness 
case would be $6.67 ([10 minutes per case] x [1 hour per 60 minutes] x 
[$40.04 per hour]).
    To calculate the total estimated costs of this part of the proposed 
rule, OSHA used establishment and employment counts from the U.S. 
Census County Business Patterns (CBP), and injury and illness counts 
from the BLS Survey of Occupational Injuries and Illnesses

[[Page 67273]]

(SOII).\4\ CBP data show that there are 38,094 establishments with 250 
or more employees in the industries covered by this section. These 
establishments would be required to electronically report detailed 
injury and illness information on a quarterly basis under the proposed 
rule. The CBP data also indicate that these large establishments employ 
35.8% of all employees in the covered industries. The BLS data show a 
total of 2,486,500 injuries and illnesses that occurred in the covered 
industries. To calculate the number of injuries and illnesses that will 
be reported by covered establishments with 250 or more employees, OSHA 
assumed that total recordable cases in establishments with 250 or more 
employees would be proportional to their percentage of employment 
within the industry. Thus, OSHA estimates that 890,288 injury and 
illness cases will be reported per year by establishments with 250 or 
more employees that are covered by this section.
---------------------------------------------------------------------------

    \4\ For the CBP see: http://www.census.gov/econ/cbp/. For the 
SOII see: http://www.bls.gov/iif/oshsum.htm.
---------------------------------------------------------------------------

    OSHA then calculated an estimated total cost of quarterly data 
submission of non-case information of $1,016,729 ([38,094 
establishments required to submit data quarterly] x [$26.69 for 
electronic data submission per year]). In addition, OSHA calculated an 
estimated total cost of quarterly data submission of case information 
of $5,938,221 ([890,288 injury/illness cases per year at affected 
establishments] x [$6.67 per injury/illness case]). Summing these two 
costs yields a total cost of $6,954,950 per year ($1,016,729 + 
$5,938,221), for an average cost per affected establishment of $183 per 
year.
    OSHA is interested in comments on all aspects of this preliminary 
estimate. In addition, these cost estimates assume that all 
establishments with 250 or more employees will be able to report 
electronically with existing facilities and equipment. OSHA welcomes 
any examples of such establishments that cannot report electronically 
with existing facilities and equipment or data sources showing that 
such establishments exist.
    These cost estimates also include establishments currently included 
in the OSHA Data Initiative. OSHA did not calculate a comparison 
between the current costs of annual submission of some Part 1904 
recordkeeping information under the ODI and the costs of quarterly 
electronic data submission of all Part 1904 recordkeeping information 
under the proposed rule. However, for establishments that are already 
included in the current ODI, the additional costs of quarterly 
electronic data reporting under this part of the proposed rule will be 
less than the calculated $183 per year.
2. Sec.  1904.41(a)(2)--Annual Electronic Submission of OSHA Annual 
Summary Form (Form 300A) by Establishments With 20 or More Employees in 
Designated Industries
    As in the previous section on quarterly electronic submission of 
Part 1904 records from establishments with 250 or more employees, OSHA 
first obtained the estimated cost of electronic data submission per 
establishment by multiplying the compensation per hour (in dollars) for 
the person expected to perform the task of electronic data submission 
by the time required for the electronic data submission. OSHA then 
multiplied this cost by the estimated number of establishments that 
would be required to submit data, to obtain the total estimated costs 
of this part of the proposed rule.
    As in the previous section, for compensation per hour, OSHA used 
the calculated cost of $40.04 per hour as a reasonable estimate of the 
hourly compensation of a representative recordkeeper.
    OSHA used the BLS estimate of 10 minutes per establishment for 
electronic submission of the information on Forms 300 (Log of Work-
Related Injuries or Illnesses) and 300A (Summary of Work-Related 
Injuries and Illnesses) to estimate the time required for this 
submission. This may be an overestimate, because the requirement in 
this part of the proposed rule is for electronic submission of 
information from Form 300A only. However, OSHA assumes that most of the 
time required for submission of Form 300A information will be spent on 
the submission process (i.e., logging on and off the data submission 
site, assuring the accuracy of log-on information, and so on), rather 
than on entry of the limited amount of information on the form. 
Therefore, OSHA considers it appropriate to use the BLS estimate.
    The estimated cost per establishment for electronic submittal under 
this part of the proposed rule is thus $6.67 per year ([$40.04 per 
hour] x [10 minutes per data submission] x [1 hour per 60 minutes] x 
[one data submission per year]).
    To estimate the number of establishments affected, OSHA assumed 
that this part of the proposed rule would require annual electronic 
data submission from establishments with 20 or more employees in the 
non-exempt industries listed in the proposed rule. Under these 
criteria, 440,863 establishments would be subject to this part of the 
proposed rule.
    However, many of these establishments are already submitting these 
data to OSHA through the current OSHA Data Initiative (ODI). 47,700 
establishments of the 68,600 establishments in the 2010 ODI (70%) 
submitted their data electronically. Because these establishments are 
already submitting the data required by this part of the proposed rule, 
in the manner required by this part of the proposed rule, it is 
reasonable to assume that this part of the proposed rule will not 
result in any new costs for these 47,700 establishments. OSHA has no 
reason to think that establishments in the ODI are any different in 
terms of recordkeeping compliance rates from the expanded number of 
establishments affected by this proposed rule. The reason for this is 
that the underlying population for both the ODI sample and this 
expanded reporting sample are part of the same universe: Establishments 
already required to keep records.
    As a result, if all of the affected establishments have on-site 
access to a computer and an adequate Internet connection, OSHA 
estimates that the direct labor cost of this part of the proposed rule 
would be $2,622,397 ([$6.67 per establishment per year] -([440,863 
establishments affected under the proposed rule] -[47,700 
establishments already submitting electronically to the ODI])).
    However, as noted above, 30% of establishments in the 2010 ODI did 
not submit data electronically. One possible reason for this choice is 
that, for some of the establishments affected by this part of the 
proposed rule, it is difficult to submit data electronically. Most 
agencies currently allow non-electronic filing of information, and some 
businesses continue to use this option, despite strong encouragement by 
agencies to file electronically.
    OSHA searched for but was unable to find information on the 
proportion of all businesses without access to a computer and the 
Internet. However, OSHA did find a survey, conducted by a contractor 
for the Office of Advocacy of the Small Business Administration (SBA) 
in the spring of 2010, on the use of Internet connectivity by small 
businesses, called ``The Impact of Broadband Speed and Price on Small 
Business'' (http://www.sba.gov/sites/default/files/rs373tot_0.pdf). 
This survey suggests that at least 90 percent of small businesses 
surveyed use the Internet at their business. Further, the survey noted 
that 75 percent of all small businesses not using the Internet were 
small

[[Page 67274]]

businesses with five or fewer employees. Given the survey's estimates 
that 50 percent of small businesses have fewer than 5 employees, this 
means that 95 percent of all small businesses with five or more 
employees have Internet connections. OSHA believes that even this 95 
percent is an underestimate for two reasons. First, the survey is three 
years old, and during the past three years the cost of both computer 
equipment and Internet access has fallen (for example, since May 2008 
the BLS Personal Computer Index has fallen by 12 percent; http://data.bls.gov/timeseries/CUSR0000SEEE01?output_view=pct_3mths). 
Second, the survey is of small entities, not establishments. OSHA can 
show that a significant proportion of small establishments are a part 
of non-small entities, and those larger entities are even more likely 
to have computers and Internet connections.
    It also needs to be noted that the minimum establishment size 
affected by this proposed rule is 20 employees. It is reasonable to 
assume that even a smaller percentage of firms with 20 or more 
employees lack a computer with an Internet connection.
    OSHA was able to find only two current Federal Government data 
collection programs that require data to be submitted electronically.
     Effective January 1, 2010, the Department of Labor's 
Employee Benefits Security Administration requires the electronic 
filing of all Form 5500 Annual Returns/Reports of Employee Benefit Plan 
and all Form 5500-SF Short Form Annual Returns/Reports of Small 
Employee Benefit Plan for 2009 and 2010 plan years, as well as any 
required schedules and attachments, using EFAST2-approved third-party 
software or iFile. EFAST2 is an all-electronic system designed by the 
Department of Labor, Internal Revenue Service, and Pension Benefit 
Guaranty Corporation to simplify and expedite the submission, receipt, 
and processing of the Form 5500 and Form 5500-SF. These forms must be 
electronically filed each year by employee benefit plans to satisfy 
annual reporting requirements under the Employee Retirement Income 
Security Act (ERISA) and the Internal Revenue Code. Under EFAST2, 
filers choose between using EFAST2-approved vendor software or a free 
limited-function web application (IFILE) to prepare and submit the Form 
5500 or Form 5500-SF. Completed forms are submitted via the Internet to 
EFAST2 for processing.
     Under the mandatory electronic filing provisions (11 CFR 
104.18) of the Federal Election Commission (FEC), effective January 1, 
2001, any political committee or other person that is required to file 
reports with the FEC and that receives contributions or makes 
expenditures in excess of $50,000 in the current calendar year, or has 
reason to expect to do so, must submit its reports electronically.
    All other current data collection programs identified by OSHA 
provide a non-electronic option for data submission, including the OSHA 
Data Initiative (ODI); various databases at the Environmental 
Protection Agency, including the Toxics Release Inventory Program 
(TRI); and programs administered by the Internal Revenue Service, the 
Bureau of Labor Statistics, and the U.S. Census Bureau (including 
business data).
    As noted above, even a dated survey from 2010 found that 95 percent 
of small businesses with 5 or more employees had a computer with an 
Internet connection. The Department of Commerce estimated in 2009 that 
69% and 64% of U.S. households, respectively, had any kind of Internet 
access and broad-band Internet access specifically (National 
Telecommunications and Information Administration, U.S. Department of 
Commerce, ``Table 2 Households using the Internet in and outside the 
home, by selected characteristics: Total, Urban, Rural, Principal City, 
2009 (Numbers in Thousands)'', http://www.ntia.doc.gov/legacy/data/CPS2009_Tables.html). In addition, households with higher incomes and 
levels of education were more likely to have Internet access at home, 
and home Internet access among employed householders was 78%, compared 
to 65% among unemployed householders and 52% among householders not in 
the labor force.
    It seems reasonable to assume that business owners, as a group, 
have higher incomes and labor force participation rates than the U.S. 
population as a whole. And data from the 2007 Survey on Small Business 
Owners, conducted by the U.S. Census Bureau, show that business owners 
have higher levels of education; 74% of the business owners had at 
least some post-high school education and 45% had at least a bachelor's 
degree, compared to 55% and 30% among the general U.S. population aged 
25 and older in 2010 (U.S. Census, ``Table 1. Educational Attainment of 
the Population 18 Years and Over, by Age, Sex, Race, and Hispanic 
Origin: 2010'', http://www.census.gov/hhes/socdemo/education/data/cps/2010/Table1-01.xls, accessed June 15, 2011). Further, a small business 
owner without an office or home computer may own a smart phone, which 
could easily be used for transmitting the data in this very simple 
form.
    To account for the lack of direct data on computers and Internet 
access among small businesses and the presumed increase in Internet 
usage since the indirect data were obtained, OSHA will estimate that 
95% of the 440,863 establishments subject to this part of the proposed 
rule (i.e., 418,820 establishments) have access to a computer with an 
Internet connection, either at home or at work. OSHA believes that the 
actual percentage of establishments with Internet access at the office, 
home, or by smart phone is larger than this estimated value. OSHA 
welcomes comment on this issue. The remaining 22,043 establishments 
would have to either buy additional equipment and/or services or use 
off-site facilities, such as public libraries. OSHA preliminarily 
estimates that finding and using such off-site facilities would add an 
hour (including transportation and waiting time) to the time required 
by the recordkeeper to submit the data electronically. This would lead 
to additional costs of $882,607 per year ([440,863 establishments] x 
[5% of these establishments] x [1 hour for finding and using off-site 
facilities] x [$40.04 per hour]). OSHA is interested in comments on all 
aspects of this preliminary estimate.
    The total costs of this part of the proposed rule are the direct 
labor cost of electronic submittal ($2,622,397) for the 393,163 
establishments subject to the rule and not already electronically 
submitting the data to OSHA through the ODI, plus the additional cost 
for 5% of the affected 440,863 establishments of going off-site to 
submit the data electronically ($882,607). A last cost of $189,935, for 
those establishments that do not currently certify their records, is 
discussed below. Thus, the total cost is $3,695,939 per year, or an 
approximate estimated average of $9.40 per affected establishment 
([$3,695,939 per year]/([440,863 establishments affected under the 
proposed rule] - [47,700 establishments already submitting 
electronically to the ODI])).
    Note that these cost estimates include establishments that would 
already be submitting these data under the proposed requirement for 
quarterly electronic submission of Part 1904 records by establishments 
with 250 or more employees. Of the 38,094 establishments that would be 
affected by the proposed requirement for quarterly submission of 
records by establishments with 250 or more employees, 17,491 would also 
be affected by the proposed requirement

[[Page 67275]]

for annual electronic submission of OSHA annual summary form (Form 
300A) by establishments with 20 or more employees in designated 
industries. However, the cost estimate has already removed many of 
these 17,491 establishments as part of the 47,700 establishments 
subject to this part of the proposed rule and currently submitting 
annual information electronically to OSHA through the ODI. The number 
of establishments that would be affected by both the quarterly 
submission requirement and the annual submission requirement, and that 
are not currently submitting information electronically to OSHA through 
the ODI, is probably too small to make a significant difference in the 
calculated costs of $3.7 million per year.
    A small percentage of establishments currently subject to Part 1904 
do not fully comply with the requirement in Sec.  1904.32(a)(3) to 
certify the accuracy of each year's records. OSHA determined, based on 
inspection data, that in 2010 about 1.6 percent of establishments 
undergoing inspection had violations of the recordkeeping certification 
requirement. OSHA has estimated costs and a paperwork burden for the 
time these employers would spend reviewing their data for certification 
purposes. Because this data collection would make it obvious to these 
employers that a record has not been certified, OSHA included the full 
costs of certification for those not in compliance with Sec.  
1904.32(a)(3) as a cost of this rule. The number of those that do not 
comply may be estimated by multiplying 1.6 percent times 360,863 
establishments subject to the rule but not currently in the ODI 
(440,863 total establishments minus 80,000 in ODI). The resulting 
figure is only 5,774 establishments not currently in compliance. The 
cost for these non-compliers to comply with Sec.  1904.32(a)(3) by 
completing certification is $189,935. This is calculated by multiplying 
30 minutes by 5,774 establishments (resulting in 2,887 hours) times the 
adjusted hourly wage for a certifying official ($65.79). This wage 
reflects the hourly wage plus benefits of an Industrial Production 
Manager (OES 11-3051), the same occupation used for certification of 
records in other OSHA recordkeeping regulations. OSHA invites comments 
on whether 1.6 percent is the actual certification non-compliance rate 
for firms subject to Part 1904, and on whether the adjusted wage of 
$65.79 is, on average, the correct wage rate for individuals certifying 
annual recordkeeping logs.
    OSHA believes, and current ICRs support, that 30 minutes is the 
appropriate amount of time required, on average, for certification. 
However, it is possible to exhibit a range of time requirements. If, 
for example, the certifying officials are especially productive at 
certification, perhaps because the injury and illness records are well-
maintained or because they are able to work off existing finalized 
summary reports sent to Workers' Compensation insurance agencies, then 
it may only take 15 minutes, on average, to complete the certification. 
In that case, the total cost would be just $94,967. On the other hand, 
perhaps the certifying officials have become less productive since the 
previous ICRs. If it now takes a certifying official one hour instead 
of 30 minutes to certify, then the total cost for non-complying 
establishments would be $379,870.
3. Sec.  1904.41(a)(3)--Electronic Submission of Part 1904 Records Upon 
Notification
    This part of the proposed rule has no immediate costs or economic 
impacts. Under this part of the proposed rule, an establishment will be 
required to submit data electronically if OSHA notifies the 
establishment to do so as part of a specified data collection. Each 
specified data collection would be associated with its own particular 
costs, benefits, and economic impacts, which OSHA would estimate as 
part of obtaining OMB approval for the specified data collection under 
the Paperwork Reduction Act of 1995.
4. Budget Costs to the Government for the Creation of the Reporting 
System, Helpdesk Assistance, and Administration of the Electronic 
Submission Program
    While OSHA has not typically included the cost of administering a 
new regulation in the preliminary economic analysis, in this document 
the Agency has included such costs because they represent a significant 
fraction of the total costs of the regulation. These costs will be 
offset by budget savings from the discontinuation of the current ODI 
survey. The program lifecycle costs can be categorized into IT hardware 
and software costs, helpdesk costs, and OSHA program management 
personnel costs. OSHA received estimates for the lifecycle costs from 
three sources: an OSHA contractor, the BLS, and OSHA offices.
    According to OSHA's Office of Web Services, the creation of the 
reporting system hardware and software infrastructure will have an 
initial cost of $1,545,162. Annualized over 10 years at seven percent 
interest, this is $219,996 per year.
    BLS provided a unit cost estimate of 28 cents per transaction. This 
would amount to $372,000 per year for about 1.3 million transactions. 
Adding annual help desk costs of $200,000 would make the total 
$572,000.
    The contractor and OSHA's Office of Web Services provided higher 
budget estimates. The contractor suggested that annual costs could be 
as high as $953,000, while the OSHA Office of Web Services suggested a 
cost of $626,000 per year. OSHA will also continue to require three 
full-time-equivalent workers (FTEs) to administer the new electronic 
recordkeeping system. OSHA believes these FTEs will cost the government 
$150,000 each, including salary and benefits, for a total of $450,000 
per year. Added to the BLS cost of $572,000 and the annualized start-up 
cost of $220,000, this would amount to $1,242,000, or just over $1.2 
million, and less than the budget of the current ODI. Adding the FTE 
costs to the contractor and OSHA Office of Web Services estimates, 
along with the annualized start-up cost yields a range of between $1.2 
million and $1.6 million per year. For its best estimate, OSHA will use 
the BLS estimated costs per transaction, because this estimate is based 
on actual experience with implementing a similar program.
5. Total Costs of the Rule
    As shown in the table below, the total costs of the proposed rule 
would be an estimated $11.9 million per year.

               Table V-1--Total Costs of the Proposed Rule
------------------------------------------------------------------------
                     Cost element                         Annual costs
------------------------------------------------------------------------
Quarterly electronic submission of Part 1904 records          $6,954,950
 by establishments with 250 or more employees........
Annual electronic submission of OSHA annual summary            3,695,939
 form (Form 300A) by establishments with 20 or more
 employees in designated industries..................
This includes:
    Cost for annual electronic submission............          2,622,397

[[Page 67276]]

 
    Cost for establishments without a computer.......            883,607
    Cost for establishments with non-certified                   189,935
     records.........................................
Electronic submission of Part 1904 records upon                      * 0
 notification........................................
Total Private Sector Costs...........................         10,650,889
Total Government Costs...............................          1,242,000
                                                      ------------------
    Total............................................         11,892,889
------------------------------------------------------------------------
* This part of the proposed rule has no immediate costs or economic
  impacts. Under this part of the proposed rule, an establishment would
  be required to submit data electronically if OSHA notified the
  establishment to do so as part of a specified data collection. Each
  specified data collection would be associated with its own particular
  costs, benefits, and economic impacts, which OSHA would estimate as
  part of obtaining OMB approval for the specified data collection under
  the Paperwork Reduction Act of 1995.

    The above costs include the costs (estimated to be $189,935) for 
establishments that are currently out of compliance with the existing 
certification requirements to come into compliance with these 
requirements before electronically submitting their data to OSHA. 
However, OSHA did not include costs related to another possibility--
namely, that this proposal would result in increased costs for meeting 
OSHA recordkeeping requirements by employers who currently certify that 
their records are accurate, because these employers will take more 
pains to ensure accuracy if the records are electronically submitted to 
OSHA. There are several reasons why OSHA assumes no added burden for 
these employers who already certify that their records are accurate.
    First, as noted, the proposed rule does not add to or change any 
employer's obligation to complete, retain, and certify injury and 
illness records. The proposed rule also does not add to or change the 
recording criteria or definitions for these records. The only change is 
that, under certain circumstances, employers will be obligated to 
transmit information from these records to OSHA in an electronic format 
(either a file or by a secure Web page). Many employers are already 
doing this through the OSHA Data Initiative; these employers have not 
commented, either on the rule or on the paperwork analyses, that they 
incurred additional costs beyond those that OSHA estimated (see for 
example the ODI ICR 200912-1218-012 and the SOII ICR 201209-1220-001).
    Second, employers are already required to examine and certify the 
information they collect, under penalty of perjury. Employers who are 
already sufficiently satisfied with the accuracy of their records to 
accept the risk of a criminal penalty are unlikely to do more simply 
because they must electronically submit the records to OSHA. Therefore, 
the prospect of submitting their data to OSHA would not provide any 
additional incentive to carefully record injuries and illnesses.
    Third, injury and illness records kept under Part 1904 are already 
available to OSHA and the public in a variety of ways. The annual 
summary data must be posted where employees can see it. Employees or 
their representatives can also obtain and publicize most of the 
information from these records at any time, if they so wish. These are 
the people who are most likely to recognize if the records are 
inaccurate. Finally, OSHA Compliance Officers routinely review these 
records when they perform workplace inspections. While OSHA inspections 
are a rare event for the typical business, they are much more common 
for firms with over twenty employees in the kinds of higher-hazard 
industries subject to this rule.
    Nevertheless, OSHA welcomes comment on the issue of whether 
employers newly required to submit records to OSHA may spend additional 
time assuring the accuracy of their records, beyond what they spend 
now. If all 360,000 facilities (440,863 minus 80,000) not now 
submitting data to ODI were to spend an extra half hour for a human 
resources specialist to double-check the data prior to submission, then 
the costs of this rule would increase by $7.2 million. While this would 
be a substantial addition to the costs of the rule, such an addition 
would not alter OSHA's conclusion that this is neither an economically-
significant rule nor a rule that would impose significant costs on a 
substantial number of small businesses.

c. Benefits

    OSHA anticipates that establishments' electronic submission of 
establishment-specific injury/illness data will improve OSHA's ability 
to identify, target, and remove safety and health hazards, thereby 
preventing workplace injuries, illnesses, and deaths. In addition, OSHA 
believes that the data submission requirements of the proposed rule 
will improve the quality of the information and lead employers to 
increase workplace safety.
    Finally, the Agency plans to make the injury and illness data 
public, as encouraged by President Obama's Open Government Initiative. 
Online access to these data will allow the public, including employees 
and potential employees, researchers, employers, and workplace safety 
consultants, to use and benefit from the data. It will support the 
development of innovative ideas and allow everybody with a stake in 
workplace safety to participate in improving occupational safety and 
health. The data collected by BLS is mostly used in the aggregate. 
While BLS makes micro data available in a restricted way to 
researchers, OSHA will make micro data, including case data, available 
to researchers and the public with far fewer restrictions.
    The BLS SOII is used as a basis for much of the research on 
workplace safety and health in the US. Typical examples include 
Economic Burden of Occupational Injury and Illness in the United 
States, by J. Paul Leigh (2011); Analyzing the Equity and Efficiency of 
OSHA Enforcement, by Wayne B. Gray and John T. Scholz (1991); 
Establishment Size and Risk of Occupational Injury, by Dr. Arthur 
Oleinick MD, JD, MPH, Jeremy V. Gluck Ph.D., MPH, and Kenneth E. Guire 
(1995); and Occupational Injury Rates in the U.S Hotel Industry, by 
Susan Buchanan et al. in the American Journal of Industrial Medicine 
(2010). Some of these studies, such as Gray and Sholtz, use 
establishment data previously only available on site at BLS.
    The data base resulting from this proposed rule would provide for 
the use of establishment-specific data without having to work under the 
restrictions imposed by BLS for the use of confidential data. It would 
also provide data on injury and illness classifications that are not 
currently available from any source, including the BLS SOII. 
Specifically, under this collection, there would be case-specific data 
for injuries

[[Page 67277]]

and illnesses that do not involve days away from work. The BLS case and 
demographic data is limited to cases involving days away from work and 
a small subset of cases involving restricted work activity.
    In order to determine possible monetary benefits to this rule, OSHA 
calculated the value of statistical life (VSL) using Viscusi & Aldy's 
(2003) meta-analysis of studies in the economics literature that use a 
willingness-to-pay methodology to estimate the imputed value of life-
saving programs. The authors found that each fatality avoided was 
valued at approximately $7 million in 2000 dollars. Using the GDP 
Deflator (U.S. Bureau of Economic Analysis, 2010), OSHA estimated that 
this $7 million base number in 2000 dollars yields an estimate of $8.7 
million in 2009 dollars for each fatality avoided.
    Many injuries and fatalities can be prevented at minimal costs. For 
example, the costs of greater use of already-purchased personal 
protective equipment are minimal, yet many fatalities described in 
OSHA's IMIS system could have been prevented through the use of 
available personal protective equipment. This includes fatalities 
related to falls when a person was wearing fall protection but did not 
have the lanyard attached and to electric shocks where arc protection 
was available or left in the truck. For such minimal-cost preventative 
measures, assuming they have costs of prevention of less than $1 
million per fatality prevented and using the VSL of $8.7 million and 
other parameters typically used in OSHA benefits, if the proposed rule 
leads to either 1.5 fewer fatalities or 0.025% fewer injuries per year, 
the rule's benefits will be equal to or greater than the costs. Many 
accident-prevention measures will have some costs, but even if these 
costs are 75 percent of the benefits, the proposed rule would have 
benefits exceeding costs if it prevented 4.8 fatalities or 0.8% fewer 
injuries per year. OSHA expects the rule's beneficial effects to exceed 
these values.

d. Regulatory Alternatives

1. Estimated Additional Costs for Alternative I--Enterprise-Wide 
Submission
    OSHA estimated costs for corporate reporting for three different 
scope options for this requirement. All of the scope options are for 
enterprises with five or more establishments, but the options vary with 
respect to the size of establishment that the enterprise would need to 
include in the enterprise report.
    According to Dun and Bradstreet (2012), there are 28,127 
enterprises with five or more establishments subject to OSHA 
recordkeeping requirements. These enterprises have a total of 584,662 
establishments.
    Under the first scope option, labeled ``Establishments with 1 or 
more'' in Table V-2, enterprises would be required to include in their 
report all establishments subject to reporting requirements, regardless 
of the establishments' number of employees. This option would require 
reporting for 584,662 establishments.
    OSHA also examined an option that would require reporting only for 
establishments with 11 or more employees, labeled ``Establishments with 
11 or more'' in Table V-2. This option would require reporting for 
291,425 establishments.
    A third option, ``Establishments with 20 or more'' in Table V-2, 
would require reporting only for establishment with 20 or more 
employees. This option would require reporting by 223,592 
establishments.
    Note that the D&B estimate for the number of establishments with 20 
or more employees is close to OSHA's estimate of establishments with 20 
or more employees. The reason the number differs from the 440,000 
establishments with 20 or more employees used elsewhere in the PEA is 
that the D&B estimate is only for establishments that have 20 or more 
employees and are part of a larger enterprise with five or more 
establishments subject to recordkeeping requirements.
    For all three options, OSHA has assumed that the number of 
enterprises that would need to provide enterprise-wide reports is 
28,127, as noted in Footnote 1 in Table V-2, below. This assumption is 
necessary because the data OSHA received from Dun and Bradstreet only 
provided information on the total number of enterprises with five or 
more establishments required to keep records and on the total number of 
establishments controlled by these enterprises that had either eleven 
or more employees or twenty or more employees. OSHA did not receive 
information on the numbers of enterprises that control only larger 
establishments, such as establishments employing 11 or more employees 
or establishments employing 20 or more employees. However, OSHA expects 
that the number of enterprises with five or more establishments 
employing 11 or more employees is smaller than 28,127 and that the 
number of enterprises with five or more establishments employing 20 or 
more employees is smaller still. As a result, OSHA's estimates of costs 
for the second option (``Establishments with 11 or more'') and third 
option (''Establishments with 20 or more'') are probably overestimates.
    OSHA estimates that:
    (1) Each establishment will need 10 minutes to transmit its OSHA 
records to its parent enterprise. The Agency would not require these 
establishments to transmit their records electronically to the parent 
enterprise. They would also be allowed to use the mail, telephone, or 
fax. Note that establishments in the affected NAICS codes are already 
complying with Part 1904 recordkeeping requirements. Thus, the 
enterprise-wide reporting requirement would only change their 
recordkeeping procedures by requiring them to transmit their OSHA log 
once a year to their parent enterprise, instead of to OSHA.
    (2) the parent enterprise will need 10 minutes per establishment to 
collate, review, and, if necessary, convert to electronic format the 
records from each of their affected establishments.
    (3) the parent enterprise will need an additional 10 minutes for 
the required electronic transmittal of the records to OSHA.
    For the purposes of this analysis, OSHA has assumed that no parent 
enterprise currently consolidates and reviews injury and illness 
records from establishments it controls. This assumption probably 
results in a significant overestimate of the costs.
    Given the scope alternatives and the estimates outlined above, the 
costs for each alternative are shown in Table V-2. The highest-cost 
option is the first option, ``Establishments with 1 or more''. The 
yearly costs for this alternative, in addition to those already in the 
NPRM, are a total of $6,688,924.
    These costs are calculated by subtracting the number of 
establishments with reporting costs already included elsewhere in the 
PEA (223,592 establishments) from the total number of affected 
establishments (584,662), resulting in a net of 361,070 establishments. 
361,070 establishments multiplied by 10 minutes (1/6 of an hour) of 
reporting time per establishment multiplied by a wage rate of $40.04 
per hour [361,070 x 1/6 x $40.04] produces a cost of $2,409,540.
    The wage rate of $40.04 is used because OSHA assumes that a Human 
Resources Specialist will do the establishment transmittal and the 
enterprise review and transmittal. In the main cost analysis of the 
PEA, OSHA noted that in some establishments a bookkeeper might do this 
sort of work, and in others a health and safety specialist might do it. 
OSHA welcomes

[[Page 67278]]

comments on the occupations that would send and receive records at the 
establishment and enterprise level, and the hourly wage rate for those 
occupations.
    There are also the additional costs of enterprise-level review and 
submittal of the data to OSHA; the enterprise review cost is calculated 
by 584,662 establishments multiplied by 10 minutes per establishment 
multiplied by $40.04 per hour. This produces a cost of $3,901,644. The 
cost of enterprise transmittal to OSHA is $187,700 (28,127 enterprises 
multiplied by 10 minutes per enterprise multiplied by $40.04 per hour).
    Finally, in the PEA, OSHA recognizes that a very small percent (1.6 
percent) of establishments do not currently comply with OSHA 
regulations by certifying and reviewing their OSHA records. While the 
rate of non-compliance may be lower among establishments that are part 
of large, multi-establishment enterprises, OSHA has used the same 1.6-
percent estimate of non-compliance at the establishment level in this 
analysis. As in the PEA, a wage plus benefit rate of $65.79 per hour, 
for an Industrial Production Manager, is used to determine the cost of 
certification for those establishments not in compliance. That final 
additional cost is reported in the last row of Table V-2.
    Following the same calculation process, for the second option, 
``Establishments with 11 or more'', there are almost 300,000 fewer 
establishments, and the additional cost would be roughly $4 million 
less, or $2,620,851.
    For the third option, ``Establishments with 20 or more'', all of 
the establishments with 20 or more employees would already be required 
to report to OSHA in this NPRM, regardless of the enterprise-wide 
reporting requirement. Under the enterprise-wide reporting requirement, 
these establishments would instead report to their parent enterprise, 
and the only cost incurred would be to that parent enterprise, 
including the cost of enterprise review and submission.

        Table V-2--Additional Costs for Corporate Reporting, Enterprises With Five or More Establishments
----------------------------------------------------------------------------------------------------------------
                                                 Establishments with   Establishments with   Establishments with
                                                 1 or more: Provide    11 or more: Provide   20 or more: Provide
                                                   enterprise-wide       enterprise-wide       enterprise-wide
                                                report including all  report including all  report including all
                                                 establishments with   establishments with   establishments with
                                                 1 or more employees  11 or more employees  20 or more employees
----------------------------------------------------------------------------------------------------------------
Number of Establishments......................               584,662               291,425               223,592
Baseline (Number of Establishments Already in                223,592               223,592               223,592
 the PEA).....................................
Net Number of Establishments Newly Required to               361,070                67,833                     0
 Report.......................................
Number of Enterprises \1\.....................                28,127                28,127                28,127
Establishment Reporting and Review Cost \2\...            $2,409,540              $452,672                \3\ $0
Enterprise Review Cost \4\....................            $3,901,644            $1,944,776            $1,492,104
Enterprise Electronic Reporting Cost \5\......              $187,700              $187,700              $187,700
Recordkeeping Certification Cost (for                       $190,038               $35,702                    $0
 establishments that should currently certify
 but do not)..................................
                                               -----------------------------------------------------------------
    Total Incremental Cost of Corporate                   $6,688,924            $2,620,851            $1,679,804
     Reporting................................
----------------------------------------------------------------------------------------------------------------
\1\ Number of enterprises is constant across size categories, per D&B data.
\2\ Estimated time requirements for establishments: 10 minutes to transmit to the enterprise.
\3\ For the ``Establishments with 20 or more'' option, those establishments already incurred review,
  digitization, and transmittal costs in the PEA.
\4\ Estimated time requirements for enterprises: 10 minutes to collate, review, and digitize per establishment
  reporting.
\5\ 10 minutes to transmit to OSHA at the enterprise level.

2. Benefits of Alternative I--Enterprise-Wide Submission
    As stated in the PEA, OSHA believes that the submission of 
establishment injury and illness data to the controlling enterprise 
will have benefits by improving the ability of OSHA to identify, 
target, and remove safety and health hazards by targeting enterprises 
as well as establishments. In addition, OSHA believes that the 
submission of data from establishments to their parent enterprises will 
improve the quality of the information available and lead to increased 
worker safety.
    The resources that reduce workplace injuries and illnesses most 
effectively are found at the establishment and enterprise level. 
Submission of establishment data to the enterprise will improve 
communication and reporting between establishments and enterprises. 
This will alert enterprise managers to safety and health hazards, 
allowing safety and health resources within the enterprise to be 
reallocated in a more efficient manner, improving the enterprise's 
ability to solve establishment safety and health problems.
    As noted above, many injuries and fatalities can be prevented at 
minimal cost. For example, the costs of greater use of already-
purchased personal protective equipment are minimal. In terms of 
workplace fatalities, Option 1 ``Establishments with 1 or more'', with 
an incremental cost of $6.7 million, would have a net beneficial effect 
if it averted one additional workplace fatality every year (relative to 
the rule as proposed). In terms of workplace injuries, Option 1 would 
have a net beneficial effect if it reduced the number of injuries by an 
additional 110 per year (or one injury for every 255 enterprises 
required to participate in corporate reporting). This would represent 
approximately a 0.00003 percent reduction in the 3 million recordable 
private-sector injuries each year. Even if the costs of averting 
fatalities or injuries were 75 percent of the benefits, the proposed 
alternative would have benefits exceeding the costs if it prevented 
four additional fatalities or 0.00012% fewer injuries\5\. Obviously, 
Option 2 (``Establishments with 11 or more'') and Option 3 
(``Establishments with 20 or more'') would have even smaller 
incremental costs. They would therefore have a net beneficial effect 
with only very small additional numbers of fatalities averted or 
injuries

[[Page 67279]]

prevented (relative to the rule as proposed). Option 2 
(``Establishments with 11 or more'') would have a net beneficial effect 
if it averted one additional occupational fatality every 3.3 years, or 
reduced the number of occupational injuries by an additional 43 per 
year (or one injury for every 650 enterprises required to participate 
in enterprise-wide reporting). If the costs of preventing a fatality 
were 75 percent of the benefits, the benefits would exceed the costs 
even if just one fatality every nine months were prevented. Option 3 
(``Establishments with 20 or more'') would have a net beneficial effect 
if it averted one additional fatality every 4.5 years, or reduced the 
number of injuries by an additional 28 per year (or one injury for 
every 1,000 enterprises required to participate in enterprise-wide 
reporting). If the costs of preventing an injury were 75 percent of the 
benefits, the benefits would still exceed the costs if just 112 
injuries per year (or one injury per every 250 enterprises) were 
prevented by participation in enterprise-wide reporting.
---------------------------------------------------------------------------

    \5\ These calculations are based on a VSL of $8.7 million and an 
average cost per workplace injury or illness of $60,000 (Viscusi and 
Aldy (2003)). In the Option 1 example, one fatality valued at $8.7 
million is approximately 25 percent more than the annual cost of 
Option 1. The logic is precisely the same for injuries prevented. To 
arrive at a break-even point of 110 injuries prevented, divide the 
annual cost of $6.6 million by $60,000 per injury.
---------------------------------------------------------------------------

    OSHA welcomes public comment on Alternative I.

e. Economic Feasibility

    OSHA preliminarily concludes that the proposed rule will be 
economically feasible. For the quarterly reporting requirement, 
affecting establishments with 250 or more employees, the average cost 
per affected establishment will be $183 per year. For the annual 
reporting requirement, affecting establishments with 20 or more 
employees in designated industries, the average cost per affected 
establishment will be $9.40 per year. These costs will not affect the 
economic viability of these establishments.

f. Regulatory Flexibility Certification

    The part of the proposed rule requiring quarterly reporting for 
establishments with 250 or more employees will affect some small firms, 
according to the definition of small firm used by the Small Business 
Administration (SBA). In some sectors, such as construction, where 
SBA's definition only allows relatively smaller firms, there are 
unlikely to be any firms with 250 or more employees that meet SBA 
small-business definitions. In other sectors, such as manufacturing, a 
small minority of SBA-defined small businesses will be subject to this 
rule. Thus, this part of the proposed rule will affect only a small 
percentage of all small firms. However, because some small firms will 
be affected, especially in manufacturing, OSHA has examined the impacts 
on small businesses of the costs of this rule. OSHA's procedures for 
assessing the significance of proposed rules on small businesses 
suggest that costs greater than 1% of revenues or 5% of profits may 
result in a significant impact on a substantial number of small 
businesses. To meet this level of significance at an estimated annual 
average cost of $183 per affected establishment per year, annual 
revenues for an establishment with 250 or more employees would have to 
be less than $18,300, and annual profits would have to be less than 
$3,660. These are extremely unlikely combinations of revenue and 
profits for firms of this size and would only occur for a very small 
number of firms in severe financial distress.
    The part of the proposed rule requiring annual electronic 
submission of data from establishments with 20 or more employees in 
designated industries will also affect some small firms. As stated 
above, costs greater than 1% of revenues or 5% of profits may result in 
a significant economic impact on a substantial number of small 
businesses. To meet this level of significance at an estimated annual 
average cost of $9.40 per affected establishment per year, annual 
revenues for an establishment with 20 or more employees would have to 
be less than $900, and annual profits would have to be less than $180. 
These are extremely unlikely combinations of revenue and profits for 
establishments of this size.
    As a result of these considerations, per Sec.  605 of the 
Regulatory Flexibility Act, OSHA proposes to certify that this proposed 
rule will not have a significant economic impact on a substantial 
number of small entities. Thus, OSHA has not prepared an initial 
regulatory flexibility analysis. OSHA is interested in comments on this 
certification.

VI. OMB Review Under the Paperwork Reduction Act of 1995

    This proposed rule would revise an existing collection of 
information, as defined and covered by the Paperwork Reduction Act of 
1995 (PRA) and its implementing regulations.
    Docket exhibit OSHA 2013-0023-0001 shows examples of user 
interfaces for the current electronic reporting system associated with 
the ODI and an expanded interface to collect case-specific data. OSHA 
currently expects that the user interfaces for the electronic reporting 
system proposed by this rule would be similar to these user interfaces. 
Screen shots of this interface can also be viewed on OSHA's Web site at 
http://www.osha.gov/recordkeeping/proposed_data_form.html. OSHA 
invites public comment on these user interfaces, including suggestions 
on any interface features that would minimize the burden of reporting 
the required data.
    Under Control Number 1218-0176, OSHA currently has OMB approval, 
under the PRA, to conduct an information collection that requires 
employers to maintain information on work-related fatalities, injuries, 
and illnesses, and to submit this information to OSHA. The proposed 
rule would also have these requirements.
    The proposed rule would amend 29 CFR 1904.41 to add three new 
electronic reporting requirements for injury and illness information 
employers are already required to keep under 29 CFR Part 1904. First, 
OSHA would require establishments that are required to keep injury and 
illness records under Part 1904, and that had 250 or more employees in 
the previous year, to submit information from these records to OSHA or 
OSHA's designee, electronically, on a quarterly basis. Second, OSHA 
would require establishments that are required to keep injury and 
illness records under Part 1904, had 20 or more employees in the 
previous year, and are in certain designated industries to 
electronically submit the information from the OSHA annual summary form 
(Form 300A) to OSHA or OSHA's designee on an annual basis. The second 
submission requirement would replace OSHA's annual illness and injury 
survey, authorized by the current version of 29 CFR 1904.41. Third, 
OSHA would require all employers who receive notification from OSHA to 
electronically submit specified information from their injury and 
illness records to OSHA or OSHA's designee.
    In accordance with 44 U.S.C. 3507(d), OSHA prepared and submitted a 
revised Information Collection Request (ICR) for this proposed 
regulation to OMB for review. OSHA solicits comments on the proposed 
revised collection of information requirements and the estimated burden 
hours associated with these requirements, including comments on the 
following items:
    (a) Whether the proposed collection of information is necessary for 
the proper performance of OSHA's functions, including whether the 
information has practical utility;
    (b) the accuracy of OSHA's burden estimate (time and cost);
    (c) ways to enhance the quality, utility, and clarity of the 
information collected;
    (d) ways to minimize the burden of the collection of information on 
employers, including the use of

[[Page 67280]]

automated collection techniques or other forms of information 
technology, and
    (e) ways to further reduce the information collection burden on 
small business concerns with fewer than 25 employees.
    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: 29 CFR Part 1904 Recordkeeping and Reporting Occupational 
Injuries and Illnesses
    2. Number of respondents: OSHA proposes to require establishments 
that are required to keep injury and illness records under Part 1904, 
and that had 250 or more employees in the previous year, to submit 
information from these records to OSHA or OSHA's designee, 
electronically, on a quarterly basis. There are approximately 38,000 
establishments that will be subject to this requirement and that will 
submit detailed case characteristic data on approximately 900,000 
occupational injuries and illnesses per year. OSHA also proposes to 
require establishments that are required to keep injury and illness 
records under Part 1904, had 20 or more employees in the previous year, 
and are in certain designated industries to electronically submit the 
information from the OSHA annual summary form (Form 300A) to OSHA or 
OSHA's designee on an annual basis. There are approximately 440,000 
establishments that will be subject to this requirement. Finally, OSHA 
proposes to require all employers who receive notification from OSHA to 
electronically submit specified information from their injury and 
illness records to OSHA or OSHA's designee. This requirement will only 
incur a paperwork burden when the agency implements a notice of 
collection. For each new data collection conducted under this proposed 
provision, the Agency will request OMB approval under separate PRA 
control numbers. OSHA currently uses this process for the ODI data 
collection conducted under the current Sec.  1904.41, which OMB 
currently approves under Control Number 1218-0209. The total number of 
respondents to all requirements under Part 1904 is 1,665,374.
    3. Frequency of responses: Quarterly; Annually; On occasion.
    4. Number of responses: 1,369,245.
    5. Average time per response: Time per response varies from 10 
minutes for establishments reporting only under 1904.41(a)(2), to 
multiple hours for large establishments with many recordable injuries 
and illnesses reporting under 1904.41(a)(1). The average time of 
response per establishment is 29 minutes.
    6. Estimated total burden hours: The proposed change will add an 
additional 228,664 hours of burden to the recordkeeping rule (Part 
1904) and bring the total burden for the entire rule to 3,195,901 
hours.
    7. Estimated costs (capital-operation and maintenance): There are 
no capital costs for the proposed information collection.
    Members of the public may comment on the paperwork requirements in 
this proposed regulation by sending their written comments to the 
Office of Information and Regulatory Affairs, Attn: OMB Desk Officer 
for the Department of Labor, OSHA (Regulation Identifier Number (RIN) 
1218-AC50), Office of Management and Budget, Room 10235, Washington, DC 
20503; telephone: 202-395-6929; fax: 202-395-6881 (these are not toll-
free numbers); email: OIRA_submission@omb.eop.gov. Please limit the 
comments to only the proposed changed provisions of the recordkeeping 
rule (i.e. proposed Sec.  1904.41).
    OSHA encourages commenters also to submit their comments on these 
paperwork requirements to the rulemaking docket (OSHA-2013-0023), along 
with their comments on other parts of the proposed regulation. For 
instructions on submitting these comments to the docket, see the 
sections of this Federal Register notice titled DATES and ADDRESSES.
    Comments submitted in response to this notice are public records; 
therefore, OSHA cautions commenters about submitting personal 
information such as Social Security numbers and dates of birth. To 
access the docket to read or download comments and other materials 
related to this paperwork determination, including the complete 
information collection request (ICR), use the procedures described 
under the section of this notice titled ADDRESSES. You may obtain an 
electronic copy of the complete Information Collection Request (ICR) by 
going to the Web site at http://www.reginfo.gov/public/do/PRAMain, then 
select ``Department of Labor'' under ``Currently Under Review'', then 
click on ``submit''. This will show all of the Department's ICRs 
currently under review, including the ICRs submitted for proposed 
rulemakings. To make inquiries, or to request other information, 
contact Mr. Todd Owen, Directorate of Standards and Guidance, OSHA, 
Room N-3609, U.S. Department of Labor, 200 Constitution Avenue NW., 
Washington, DC 20210; telephone (202) 693-2222; email 
owen.todd@dol.gov.
    OSHA notes that a federal agency cannot (1) conduct or sponsor a 
collection of information unless OMB approves it under the PRA, and the 
information collection displays a currently-valid OMB control number, 
and (2) require a party to respond to a collection of information 
unless the collection of information displays a currently-valid OMB 
control number. Also, notwithstanding any other provision of law, no 
party shall be subject to penalty for failing to comply with a 
collection of information if the collection of information does not 
display a currently-valid OMB control number. OSHA will publish a 
notice of OMB's action when it publishes the final regulation, or, if 
not approved by then, when OMB authorizes the information collection 
requirements under the PRA.

VII. Unfunded Mandates

    For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
1501 et seq.), as well as Executive Order 12875, this proposed rule 
does not include any federal mandate that may result in increased 
expenditures by state, local, and tribal governments, or increased 
expenditures by the private sector of more than $100 million.

VIII. Federalism

    The proposed rule has been reviewed in accordance with Executive 
Order 13132 (64 FR 43255 (Aug. 4, 1999)), regarding federalism. Because 
this rulemaking involves a ``regulation'' issued under Sections 8 and 
24 of the OSH Act, and is not an ``occupational safety and health 
standard'' issued under Sec.  6 of the OSH Act, the rule will not 
preempt state law (29 U.S.C. 667(a)). The effect of the proposed rule 
on states is discussed in section IX. State Plan States.

IX. State Plan States

    For the purposes of Sec.  18 of the OSH Act (29 U.S.C. 667) and the 
requirements of 29 CFR 1904.37 and 1952.4, within 6 months after 
publication of the final OSHA rule, state-plan states must promulgate 
occupational injury and illness recording and reporting requirements 
that are substantially identical to those in 29 CFR Part 1904 
``Recording and Reporting Occupational Injuries and Illnesses.'' All 
other injury and illness recording and reporting requirements (for 
example, industry exemptions, reporting of fatalities and 
hospitalizations, record retention, or employee involvement) that are 
promulgated by state-plan states may be more stringent than, or 
supplemental to,

[[Page 67281]]

the federal requirements, but, because of the unique nature of the 
national recordkeeping program, states must consult with OSHA and 
obtain approval of such additional or more stringent reporting and 
recording requirements to ensure that they will not interfere with 
uniform reporting objectives (29 CFR 1904.37(b)(2)), 29 CFR 1952.4(a)).
    There are 27 state plan states and territories. The states and 
territories that cover private sector employers are Alaska, Arizona, 
California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, 
Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, 
South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and 
Wyoming. Connecticut, Illinois, New Jersey, New York, and the Virgin 
Islands have OSHA-approved state plans that apply to state and local 
government employees only.

X. Public Participation

    Because this rulemaking involves a regulation rather than a 
standard, it is governed by the notice and comment requirements in the 
Administrative Procedure Act (APA) (5 U.S.C. 553) rather than section 6 
of the OSH Act (29 U.S.C. 655) and 29 CFR Part 1911 (both of which only 
apply to ``promulgating, modifying or revoking occupational safety or 
health standards'' (29 CFR 1911.1)). Therefore, the OSH Act requirement 
to hold an informal public hearing (29 U.S.C. 655(b)(3)) on a proposed 
rule, when requested, does not apply to this rulemaking.
    Section 553(b)(1) of the APA requires the agency to issue a 
``statement of the time, place, and nature of public rulemaking 
proceedings'' (5 U.S.C. 553(b)(1)). The APA does not specify a minimum 
period for submitting comments.

a. Public Submissions

    OSHA invites comment on all aspects of the proposed rule. OSHA 
specifically encourages comment on the questions raised in the issues 
and questions subsection. Interested persons must submit comments by 
February 6, 2014. The Agency will carefully review and evaluate all 
comments, information, and data, as well as all other information in 
the rulemaking record, to determine how to proceed.
    You may submit comments in response to this document (1) 
electronically at http://www.regulations.gov, which is the federal e-
rulemaking portal; (2) by fax; or (3) by hard copy. All submissions 
must identify the agency name and the OSHA docket number (Docket No. 
OSHA-2013-0023) or RIN (RIN No. 1218-AC49) for this rulemaking. You may 
supplement electronic submissions by uploading document files 
electronically. If, instead, you wish to mail additional materials in 
reference to an electronic or fax submission, you must submit three 
copies to the OSHA docket office (see ADDRESSES section). The 
additional materials must clearly identify your electronic comments by 
name, date, and docket number, so that OSHA can attach them to your 
comments.
    Because of security-related procedures, the use of regular mail may 
cause a significant delay in the receipt of submissions. For 
information about security procedures concerning the delivery of 
materials by hand, express delivery, messenger, or courier service, 
please contact the OSHA docket office at (202) 693-2350 (TTY (877) 889-
5627).

b. Access to Docket

    Comments in response to this Federal Register notice are posted at 
http://www.regulations.gov, the federal e-rulemaking portal. Therefore, 
OSHA cautions individuals about submitting personal information such as 
Social Security numbers and birthdates. Although submissions are listed 
in the http://www.regulations.gov index, some information (e.g., 
copyrighted material) is not publicly available to read or download 
through that Web site. All comments and exhibits, including copyrighted 
material, are available for inspection and copying at the OSHA docket 
office. Information on using http://www.regulations.gov to submit 
comments and access dockets is available on that Web site. Contact the 
OSHA docket office for information about materials not available 
through the Web site and for assistance in using the Internet to locate 
docket submissions.
    Electronic copies of this Federal Register document are available 
at http://www.regulations.gov. This document, as well as news releases 
and other relevant information, also are available at OSHA's Web page 
at http://www.osha.gov. For specific information about OSHA's 
Recordkeeping rule, go the Recordkeeping page on OSHA's Web page.

Authority and Signature

    This document was prepared under the direction of David Michaels, 
Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and 
Health. 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. 41-
2012 (77 FR 3912 (Jan. 25, 2012)).

List of Subjects

29 CFR Part 1904

    Health statistics, Occupational safety and health, Reporting and 
recordkeeping requirements, State plans.

29 CFR Part 1952

    Health statistics, Intergovernmental relations, Occupational safety 
and health, Reporting and recordkeeping requirements, State plans.

    Signed at Washington, DC, on October 31, 2013.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.

Amendments to Standards

    For the reasons stated in the preamble, OSHA proposes to amend 
parts 1904 and 1952 of Chapter XVII of Title 29 as follows:

PART 1904--[AMENDED]

0
1. The authority citation for part 1904 continues to read as follows:

    Authority: 29 U.S.C. 657, 658, 660, 666, 669, 673, Secretary of 
Labor's Order No. 3-2000 (65 FR 50017), and 5 U.S.C. 533.

Subpart E--Reporting Fatality, Injury and Illness Information to 
the Government

0
2. Add an authority citation to Subpart E of 29 CFR part 1904 to read 
as follows:

    Authority: Sections 8 and 24 of the Occupational Safety and 
Health Act (29 U.S.C. 657, 673), 5 U.S.C. 553, and Secretary of 
Labor's Order 1-2012 (77 FR 3912, Jan. 25, 2012).

0
3. Revise Sec.  1904.41 to read as follows:


Sec.  1904.41  Electronic submission of injury and illness records to 
OSHA.

    (a) Basic requirements--(1) Quarterly electronic submission of Part 
1904 records by establishments with 250 or more employees. If your 
establishment is required to keep records under Part 1904 and had 250 
or more employees (including full-time, part-time, temporary, and 
seasonal workers) at any time during the previous calendar year, you 
must electronically send to OSHA or OSHA's designee, on a quarterly 
basis, all of the information from the records that you keep under Part 
1904.
    (i) The data for injuries, illnesses, and fatalities recorded 
during the period of January through March must be submitted no later 
than April 30.
    (ii) The data for injuries, illnesses, and fatalities recorded 
during the period

[[Page 67282]]

of April through June must be submitted no later than July 31.
    (iii) The data for injuries, illnesses, and fatalities recorded 
during the period of July through September must be submitted no later 
than October 31.
    (iv) The data for injuries, illnesses, and fatalities recorded 
during the period of October through December must be submitted no 
later than January 31.
    (v) The summary data from OSHA Form 300A must be submitted no later 
than March 2 of the year after the calendar year covered by the form.
    (2) Annual electronic submission of OSHA annual summary form (Form 
300A) by establishments with 20 or more employees in designated 
industries. If your establishment had 20 or more employees (including 
full-time, part-time, temporary, and seasonal workers) at any time 
during the previous calendar year, and is classified in any of the 
industries listed in Appendix A to Subpart E of Part 1904, you must 
electronically send to OSHA or OSHA's designee, once a year, the 
information from your completed annual summary form (Form 300A). The 
information must be submitted no later than March 2 of the year after 
the calendar year covered by the form.
    (3) Electronic submission of Part 1904 records upon notification. 
Upon notification, you must electronically send to OSHA or OSHA's 
designee the requested information, at the specified time interval, 
from the records that you keep under Part 1904.
    (b) Implementation--(1) Does every employer have to send data to 
OSHA? No, in any given year, some employers will have to send data to 
OSHA, and some employers will not. If your establishment is required to 
keep records under Part 1904 and had 250 or more employees in the 
previous calendar year, you must submit all of your Part 1904 data to 
OSHA on a quarterly basis, without notification from OSHA. Also, if 
your establishment is classified in any of the industries listed in 
Appendix A to Subpart E of Part 1904 and had 20 or more employees in 
the previous calendar year, you must submit the information from the 
annual summary form (Form 300A) to OSHA once a year, without 
notification from OSHA. This information must be submitted no later 
than March 2 of the year after the calendar year covered by the form 
(for example, no later than March 2, 2012, for the 2011 annual summary 
form). Otherwise, you must only submit injury and illness data to OSHA 
if you are notified to do so for an individual data collection.
    (2) How will I be notified that I have to submit the data? 
Employers required to submit data on a quarterly basis (that is, 
employers that are required to keep records under Part 1904 and had 250 
or more employees in the previous calendar year) will not be notified. 
Employers required to submit data once a year (that is, employers, in 
designated industries, that had 20 or more employees in the previous 
calendar year) will also not be notified. Employers required to submit 
data as part of an individual data collection will be notified by mail. 
OSHA will also announce individual data collections through publication 
in the Federal Register and the OSHA newsletter, and announcements on 
the OSHA Web site.
    (3) How often do I have to submit the data? Establishments that are 
required to keep records under Part 1904 and had 250 or more employees 
in the previous calendar year must submit their Form 300 and Form 301 
data on a quarterly basis and their annual summary data, from Form 
300A, on an annual basis. Establishments that are in designated 
industries and had 20 or more employees in the previous calendar year 
must submit their Form 300A data once a year. Establishments that 
receive a notification for an individual data collection must submit 
their data according to the frequency specified in the notification.
    (4) How do I submit the data? Establishments must submit their data 
electronically. OSHA will provide a secure Web site for the electronic 
submission of data. For individual data collections, OSHA will include 
the Web site's location in the notification for the data collection. 
The Web site will allow for both direct data entry and submission of 
data through a batch file upload, as appropriate.
    (5) Do I have to submit data if I am normally exempt from keeping 
OSHA injury and illness records? If you are exempt from keeping injury 
and illness records under Sec.  1904.1 and/or Sec.  1904.2 of this 
part, you will have to submit data only if OSHA informs you in writing 
that it will collect injury and illness information from you. If you 
receive such a notification, you must keep the injury and illness 
records required by Part 1904 and submit data as directed.
    (6) Do I have to submit data if I am located in a State-Plan State? 
The requirements for submitting data apply to all employers, including 
employers in State-Plan States.
0
4. Add Appendix A to Subpart E of Part 1904 to read as follows:

Appendix A to Subpart E of Part 1904--Designated Industries for Annual 
Electronic Submission of OSHA Annual Summary Form (Form 300A) by 
Establishments With 20 or More 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.
4521...................................  Department Stores.
4529...................................  Other General Merchandise
                                          Stores.
4533...................................  Used Merchandise Stores.
4543...................................  Direct Selling Establishments.
4811...................................  Scheduled Air Transportation.
4832...................................  Inland Water Transportation.
4841...................................  General Freight Trucking.
4842...................................  Specialized Freight Trucking.
4855...................................  Charter Bus Industry.
4871...................................  Scenic and Sightseeing
                                          Transportation, Land.

[[Page 67283]]

 
4872...................................  Scenic and Sightseeing
                                          Transportation, Water.
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.
4921...................................  Couriers.
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.
6216...................................  Home 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.
6232...................................  Residential Mental Retardation,
                                          Mental Health and Substance
                                          Abuse Facilities.
6233...................................  Community Care Facilities for
                                          the Elderly.
6239...................................  Other Residential Care
                                          Facilities.
6243...................................  Vocational Rehabilitation
                                          Services.
7112...................................  Spectator Sports.
7131...................................  Amusement Parks and Arcades.
7132...................................  Gambling Industries.
7211...................................  Traveler Accommodation.
8113...................................  Commercial and Industrial
                                          Machinery and Equipment
                                          (except Automotive and
                                          Electronic) Repair and
                                          Maintenance.
8123...................................  Drycleaning and Laundry
                                          Services.
------------------------------------------------------------------------


PART 1952--[AMENDED]

0
4. The authority citation for part 1952 is revised to read as follows:

    Authority: Sec. 18, 84 Stat. 1608 (29 U.S.C. 667); 29 CFR part 
1902; Secretary of Labor's Order 1-2012 (77 FR 3912, Jan. 25, 2012).

0
5. In Sec.  1952.4, revise paragraph (d) to read as follows:


Sec.  1952.4  Injury and illness recording and reporting requirements.

* * * * *
    (d) As provided in section 18(c)(7) of the Act, State-Plan States 
must adopt requirements identical to those in 29 CFR 1904.41 in their 
recordkeeping and reporting regulations as enforceable State 
requirements. The data collected by OSHA as authorized by Sec.  1904.41 
will be made available to the State Plan States. Nothing in any State 
plan shall affect the duties of employers to comply with Sec.  1904.41.

[FR Doc. 2013-26711 Filed 11-7-13; 8:45 am]
BILLING CODE P