83 FR 36494 - Tracking of Workplace Injuries and Illnesses
DEPARTMENT OF LABOR
Occupational Safety and Health Administration Federal Register Volume 83, Issue 146 (July 30, 2018)
Occupational Safety and Health Administration
Federal Register Volume 83, Issue 146 (July 30, 2018)
| Page Range | 36494-36507 | |
| FR Document | 2018-16059 |
[Federal Register Volume 83, Number 146 (Monday, July 30, 2018)] [Proposed Rules] [Pages 36494-36507] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-16059] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF LABOR Occupational Safety and Health Administration 29 CFR Part 1904 [Docket No. OSHA-2013-0023] RIN 1218-AD17 Tracking of Workplace Injuries and Illnesses AGENCY: Occupational Safety and Health Administration (OSHA), Labor. ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: This proposed rule would amend OSHA's recordkeeping regulation by rescinding the requirement for establishments with 250 or more employees to electronically submit information from OSHA Forms 300 and 301. These establishments will continue to be required to submit information from their Form 300A summaries. OSHA is amending its recordkeeping regulations to protect sensitive worker information from potential disclosure under the Freedom of Information Act (FOIA). OSHA has preliminarily determined that the risk of disclosure of this information, the costs to OSHA of collecting and using the information, and the reporting burden on employers are unjustified given the uncertain benefits of collecting the information. OSHA believes that this proposal maintains safety and health protections for workers while also reducing the burden to employers of complying with the current rule. OSHA seeks comment on this proposal, particularly on its impact on worker privacy, including the risks posed by exposing workers' sensitive information to possible FOIA disclosure. In addition, OSHA is proposing to require covered employers to submit their Employer Identification Number (EIN) electronically along with their injury and illness data submission. DATES: Comments must be submitted by September 28, 2018. ADDRESSES: You may submit comments, identified by docket number OSHA- 2013-0023, or regulatory information number (RIN) 1218-AD17, by any of the following methods: Electronically: You may submit comments electronically at https://www.regulations.gov/, which is the federal e-rulemaking portal. Follow the instructions on the website for making electronic submissions; Fax: If your submission, including attachments, does not exceed 10 pages, you may fax it to the OSHA docket office at (202) 693-1648; Regular mail, express mail, hand delivery, or messenger/courier service (hard copy): You may submit your materials to the OSHA Docket Office, Docket No. OSHA-2013-0023, Room N-3653, U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210; telephone: (202) 693-2350 (TTY (887) 889-5627). OSHA's Docket Office accepts deliveries (hand deliveries, express mail, and messenger/courier service) from 10 a.m. to 3 p.m. ET, weekdays. Instructions for submitting comments: All submissions must include the docket number (Docket No. OSHA-2013-0023) or the RIN (RIN 1218- AD17) for this rulemaking. Because of security-related procedures, submission by regular mail may result in significant delay. Please contact the OSHA docket office (telephone: (202) 693-2350; email: [email protected]) for [[Page 36495]] information about security procedures for making submissions by hand delivery, express delivery, and messenger or courier service. All comments, including any personal information you provide, are placed in the public docket without change and will be made available online at https://www.regulations.gov. Therefore, OSHA cautions you about submitting personal information such as Social Security Numbers and birthdates. Docket: To read or download submissions in response to this Federal Register document, go to docket number OSHA-2013-0023, at https://www.regulations.gov. All submissions are listed in the https://www.regulations.gov index. However, some information (e.g., copyrighted material) is not publicly available to read or download through that website. All submissions, including copyrighted material, are available for inspection at the OSHA docket office. Electronic copies of this Federal Register document are available at https://www.regulations.gov. This document, as well as news releases and other relevant information, is available at OSHA's website at http://www.osha.gov. FOR FURTHER INFORMATION CONTACT: For press inquiries: Frank Meilinger, OSHA Office of Communications, telephone: (202) 693-1999; email: [email protected]. For general and technical information on the proposed rule: Amanda Edens, Director, Directorate of Technical Support and Emergency Management, telephone: (202) 693-2300; email: [email protected]. SUPPLEMENTARY INFORMATION: Table of Contents I. Background A. Introduction B. Regulatory History II. Legal Authority III. Summary and Explanation of the Proposed Rule A. Description of Proposed Revisions to Section 1904.41 1. Section 1904.41(a)(1)--Annual Electronic Submission of OSHA Part 1904 Records by Establishments With 250 or More Employees 2. Section 1904.41, Paragraphs (b)(1)-(8)--Implementation 3. Employer Identification Number B. Additional Questions IV. Preliminary Economic Analysis and Regulatory Flexibility Certification A. Introduction B. Cost Savings C. New Costs (From the EIN Collection) D. Net Cost Savings E. Benefits F. Economic Feasibility G. Regulatory Flexibility Certification V. Office of Management and Budget (OMB) Review Under the Paperwork Reduction Act of 1995 VI. Unfunded Mandates VII. Federalism VIII. State Plan States IX. Public Participation A. Public Submissions B. Access to Docket Amendments to Part 1904 References and Exhibits In this preamble, OSHA references documents in Docket No. OSHA- 2013-0023, the docket for this rulemaking. The docket is available at https://www.regulations.gov, the Federal e-rulemaking Portal. References to documents in this rulemaking docket are given as ``Ex.'' followed by the document number. The document number is the last sequence of numbers in the Document ID Number on https://www.regulations.gov. The exhibits in the docket, including public comments, supporting materials, meeting transcripts, and other documents, are listed on https://www.regulations.gov. All exhibits are listed in the docket index on https://www.regulations.gov. However, some exhibits (e.g., copyrighted material) are not available to read or download from that web page. All materials in the docket are available for inspection at the OSHA Docket Office, Room N-3653, U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210; telephone (202) 693-2350. I. Background A. Introduction OSHA's regulation at 29 CFR part 1904 requires employers to collect a variety of information on occupational injuries and illnesses. Much of this information may be sensitive for workers, including descriptions of their injuries and the body parts affected. Under OSHA's regulation, employers with more than 10 employees in most industries must keep those records at their establishments. Employers covered by these rules must record each recordable employee injury and illness on an OSHA Form 300, the ``Log of Work-Related Injuries and Illnesses,'' or equivalent. Covered employers must also prepare a supplementary OSHA Form 301, the ``Injury and Illness Incident Report'' or equivalent, to provide additional details about each case recorded on the OSHA Form 300. OSHA requires employers to provide these records to others under certain circumstances, but imposes limits on the disclosure of personally identifying information.\1\ Finally, at the end of each year, these employers are required to prepare a summary report of all injuries and illnesses on the OSHA Form 300A, the ``Summary of Work-Related Injuries and Illnesses,'' and post the form in a visible location in the workplace. --------------------------------------------------------------------------- \1\ OSHA's regulation at 29 CFR 1904.35(b)(2) requires employers to provide employees, former employees, their personal representatives, and their authorized employee representatives access to the OSHA Form 300. Employers must include the names of the employees with recorded cases, except for certain ``privacy concern cases'' as specified in 29 CFR 1904.29(b)(6)-(9). In addition, OSHA's regulation at 29 CFR 1904.29(b)(10) requires employees to remove or hide employee names and other personally identifying information when voluntarily disclosing the Form 300 or 301 to persons other than government representatives, employees, former employees or authorized representatives, except when disclosing the forms to an auditor or consultant hired by the employer to evaluate the safety and health program, or to the extent necessary for processing a claim for workers' compensation or other insurance benefits, or to a public health authority or law enforcement agency per 45 CFR 164.512. Finally, for the Form 301, OSHA's regulation at 29 CFR 1904.35(b)(2)(v) requires employers to provide an employee, former employee, or the employee's personal representative access to the Form 301 Incident Report describing an injury or illness to that employee or former employee; for authorized employee representatives, employers are required to provide the information in ``tell us about the case'' for any incident report and to remove all of the other information. --------------------------------------------------------------------------- Form 301 in particular requires the collection of much sensitive information about each individual worker's job-linked illness or injury, information an employer must collect with or without the worker's consent. While some of the information is likelier to be regarded as particularly sensitive--namely, descriptions of injuries and the body parts affected--most of the form's questions seek answers that should not be lightly disclosed, including:Was employee treated in an emergency room? Was employee hospitalized overnight as an in-patient? Date of birth. Date of injury. What was the employee doing just before the incident occurred? Describe the activity, as well as the tools, equipment, or material the employee was using. Be specific. Examples: ``climbing a ladder while carrying roofing materials''; ``spraying chlorine from hand sprayer''; ``daily computer key-entry.'' What happened? Tell us how the injury occurred. Examples: ``When ladder slipped on wet floor, worker fell 20 feet''; ``Worker was sprayed with chlorine when gasket broke during replacement''; ``Worker developed soreness in wrist over time.'' What was the injury or illness? Tell us the part of the body that was affected [[Page 36496]] and how it was affected; be more specific than ``hurt,'' ``pain,'' or ``sore.'' Examples: ``strained back''; ``chemical burn, hand''; ``carpal tunnel syndrome.'' What object or substance directly harmed the employee? Examples: ``concrete floor''; ``chlorine''; ``radial arm saw . . . '' Form 300 requires employers to log much of this individual information--notably, descriptions of injuries and the body parts affected--for each individual worker and incident. Form 300A, by contrast, merely summarizes incident data without any traceable connection to individual workers. In the May 2016 final rule (81 FR 29624), the recordkeeping regulation was revised to require establishments with 250 or more employees to electronically submit information from the OSHA Forms 300, 300A, and 301 to OSHA annually. Establishments in certain industries with 20-249 employees are required only to electronically submit information from only the OSHA Form 300A--the summary form. This proposed rule would amend OSHA's recordkeeping regulation by rescinding the requirement for establishments with 250 or more employees to electronically submit information from the OSHA Forms 300 and 301--the individual forms. As discussed below, OSHA proposes this amendment to the 2016 rule to protect worker privacy, having re-evaluated the utility of routinely collecting Form 300 and 301 data. The injury and illness data electronically submitted to OSHA from Form 300A (which submission the 2016 rule requires, and which this proposal would not change) gives OSHA a great deal of information to use in identifying high-hazard establishments for enforcement targeting. To that end, OSHA has designed a targeted enforcement mechanism for industries experiencing higher rates of injuries and illnesses based on the summary data. By contrast, OSHA has provisionally determined that electronic submission of Forms 300 and 301 adds uncertain enforcement benefits, while significantly increasing the risk to worker privacy, considering that those forms, if collected by OSHA, could be found disclosable under FOIA. In addition, to gain (uncertain) enforcement value from the case- specific data, OSHA would need to divert resources from other priorities, such as the utilization of Form 300A data, which OSHA's experience has shown to be useful. OSHA seeks comment on this proposal. In addition, OSHA asks for public comment on whether to require covered employers to submit their EIN along with their injury and illness data submission. This proposed rule is expected to be an E.O. 13771 deregulatory action, with annualized net cost savings estimated at $8.2 million. Details on OSHA's cost and cost savings estimates for this proposed rule can be found in the Preliminary Economic Analysis (PEA). Under the current recordkeeping rule, the initial deadline for electronic submission of information from OSHA Forms 300 and 301 by covered establishments with 250 or more employees was July 1, 2018. However, OSHA will not enforce this deadline without further notice while this rulemaking is underway. B. Regulatory History OSHA's regulations on recording and reporting occupational injuries and illnesses (29 CFR part 1904) were first issued in 1971 (36 FR 12612, July 2, 1971). These regulations require the recording of work- related injuries and illnesses that involve death, loss of consciousness, days away from work, restriction of work, transfer to another job, medical treatment other than first aid, or diagnosis of a significant injury or illness by a physician or other licensed health care professional (29 CFR 1904.7). On July 29, 1977, OSHA amended these regulations to partially exempt businesses having ten or fewer employees during the previous calendar year from the requirement to record occupational injuries and illnesses (42 FR 38568). On December 28, 1982, OSHA amended these regulations to partially exempt establishments in certain lower-hazard industries from the requirement to record occupational injuries and illnesses (47 FR 57699). OSHA also amended the recordkeeping regulations in 1994 (Reporting of Fatality or Multiple Hospitalization Incidents, 59 FR 15594) and 1997 (Reporting Occupational Injury and Illness Data to OSHA, 62 FR 6434). Under the authority in Section 1904.41 added by the 1997 final rule, OSHA began requiring certain employers to submit only their 300A data to OSHA annually through the OSHA Data Initiative (ODI). The purpose of the ODI was to collect data on injuries and acute illnesses attributable to work-related activities in the private sector from approximately 80,000 establishments in selected high-hazard industries. The Agency used these data to calculate establishment-specific injury and illness rates and, in combination with other data sources, to target enforcement and compliance assistance activities. On January 19, 2001, OSHA issued a final rule amending its requirements for the recording and reporting of occupational injuries and illnesses (29 CFR parts 1904 and 1902), along with the forms employers use to record those injuries and illnesses (66 FR 5916). The final rule also updated the list of industries that were partially exempt from recording occupational injuries and illnesses. On September 18, 2014, OSHA again amended the regulations to require employers to report work-related fatalities and severe injuries--in-patient hospitalizations, amputations, and losses of an eye--to OSHA and to allow electronic reporting of these events (79 FR 56130). The final rule also revised the list of industries that are partially exempt from recording occupational injuries and illnesses. On May 12, 2016, OSHA amended the regulations on recording and reporting occupational injuries and illness to require employers to annually submit injury and illness information that employers were already required to keep under part 1904 (81 FR 29624) to OSHA electronically. Establishments with 250 or more employees in industries that are routinely required to keep records are required to electronically submit information from their OSHA Forms 300, 300A, and 301 to OSHA or OSHA's designee once a year, and establishments with 20 to 249 employees in certain designated industries are required to electronically submit information from their OSHA annual summary (Form 300A) to OSHA or OSHA's designee once a year. In addition, that final rule requires employers, upon notification, to electronically submit information from part 1904 recordkeeping forms to OSHA or OSHA's designee. These provisions became effective on January 1, 2017. On November 24, 2017, OSHA amended the recordkeeping regulation to extend the initial submission deadline for 2016 Form 300A data described in 29 CFR 1904.41(c)(1) from July 1, 2017, to December 15, 2017 (82 FR 55761). II. Legal Authority OSHA is issuing this proposed rule pursuant to authority expressly granted by sections 8 and 24 of the Occupational Safety and Health Act (the ``OSH Act'' or ``Act'') (29 U.S.C. 657, 673). Section 8(c)(1) of the Act requires each employer to ``make, keep and preserve, and make available to the Secretary [of Labor] or the Secretary of Health and Human Services, such records regarding his activities relating to this Act as the Secretary . . . may prescribe by [[Page 36497]] regulation as necessary or appropriate for the enforcement of this Act or for developing information regarding the causes and prevention of occupational accidents and illnesses'' (29 U.S.C. 657(c)(1)). Section 8(c)(2) directs the Secretary to prescribe regulations ``requiring employers to maintain accurate records of, and to make periodic reports on, work-related deaths, injuries and illnesses other than minor injuries requiring only first aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job'' (29 U.S.C. 657(c)(2)). Finally, section 8(g)(2) of the OSH Act broadly empowers the Secretary to ``prescribe such rules and regulations as he may deem necessary to carry out [his] responsibilities under this Act'' (29 U.S.C. 657(g)(2)). Section 24 of the OSH Act (29 U.S.C. 673) contains a similar grant of authority. This section requires the Secretary to ``develop and maintain an effective program of collection, compilation, and analysis of occupational safety and health statistics'' and ``compile accurate statistics on work injuries and illnesses which shall include all disabling, serious, or significant injuries and illnesses'' (29 U.S.C. 673(a)). Section 24 also requires employers to ``file such reports with the Secretary as he shall prescribe by regulation'' (29 U.S.C. 673(e)). These reports are to be based on ``the records made and kept pursuant to section 8(c) of this Act'' (29 U.S.C. 673(e)). Further support for the Secretary's authority to require employers to keep and submit records of work-related illnesses and injuries can be found in the Congressional Findings and Purpose at the beginning of the OSH Act (29 U.S.C. 651). In this section, Congress declares the overarching purpose of the Act is ``to assure so far as possible every working man and woman in the Nation safe and healthful working conditions'' (29 U.S.C. 651(b)). One of the ways in which the Act is meant to achieve this goal is ``by providing for appropriate reporting procedures . . . [that] will help achieve the objectives of this Act and accurately describe the nature of the occupational safety and health problem'' (29 U.S.C. 651(b)(12)). Importantly, the statute does not require this information to be reported to OSHA. The OSH Act authorizes the Secretary of Labor to issue two types of occupational safety and health rules: Standards and regulations. Standards aim to correct particular identified workplace hazards, while regulations further the general enforcement and detection purposes of the OSH Act (see Workplace Health & Safety Council v. Reich, 56 F.3d 1465, 1468 (D.C. Cir. 1995) (citing Louisiana Chemical Ass'n v. Bingham, 657 F.2d 777, 781-82 (5th Cir. 1981)); United Steelworkers of America v. Auchter, 763 F.2d 728, 735 (3d Cir. 1985)). Recordkeeping requirements promulgated under the Act are characterized as regulations (see 29 U.S.C. 657 (using the term ``regulations'' to describe recordkeeping requirements)). An agency may revise a prior rule if it provides a reasoned explanation for the change. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983). III. Summary and Explanation of the Proposed Rule OSHA proposes to protect worker privacy by ending the electronic collection of case-specific forms (which OSHA has preliminarily determined adds uncertain enforcement value, but poses a potential privacy risk under FOIA) while continuing the collection of summary forms (which adds significant enforcement value, with little privacy risk). OSHA has reevaluated the utility of the Form 300 and 301 data for OSHA enforcement efforts and preliminarily determined that its (uncertain) enforcement value does not justify the reporting burden on employers, the burden on OSHA to collect, process, analyze, distribute, and programmatically apply the data, and--especially--the risks posed to worker privacy. Specifically, OSHA is proposing to amend its recordkeeping regulations by removing the part 1904 requirement that became effective on January 1, 2017, for the annual electronic submission of injury and illness information contained in OSHA Forms 300 and 301. This amendment would avoid the risks posed by making those forms into government records that could be found disclosable under FOIA. OSHA is only seeking comment on the proposed changes to Sec. 1904.41, and not on any other aspects of part 1904. A. Description of Proposed Revisions to Section 1904.41 1. Section 1904.41(a)(1)--Annual Electronic Submission of Part 1904 Records by Establishments With 250 or More Employees OSHA proposes to amend Sec. 1904.41(a)(1) to remove the requirement for establishments with 250 or more employees that are required to routinely keep injury and illness records to electronically submit information from the OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report) to OSHA or OSHA's designee once a year. Under the proposed rule, Sec. 1904.41(a)(1) would only require these establishments to electronically submit information from the OSHA Form 300A (Summary of Work-Related Injuries and Illnesses). As explained below, OSHA believes that this change would better protect worker privacy from the risk of FOIA disclosure, while retaining the lion's share of the enforcement benefits realized by the 2016 rule. a. Collecting Forms 300 and 301's Individual Injury and Illness Data Risks Worker Privacy Electronic submission of Forms 300 and 301 puts the federal government in the position of collecting information that workers may deem quite sensitive, including descriptions of their injuries and the body parts affected. OSHA has preliminarily determined that its collection of these individual forms' information poses a non-trivial risk of compelled disclosure--endangering worker privacy--under FOIA. As records in federal possession, Forms 300, 300A, and 301 could be subject to disclosure under FOIA if a court determines that no exemptions to FOIA apply. Although the Department believes that the information in these forms should be held exempt under FOIA, there remains a meaningful risk that a court may ultimately disagree and require disclosure. That risk remains so long as there is a non-trivial chance that any court in any of the nation's 94 federal judicial districts might issue a final disclosure order after the exhaustion of all available appeals. In the Department's view, that risk is not a reason to stop collecting Form 300A summaries, because their collection offers significant enforcement value with little privacy risk. However, OSHA has re-evaluated the utility of routinely collecting the Form 300 and 301 data for enforcement purposes, given that it has already designed a targeted enforcement mechanism using the summary data, and given the resources that would be required to collect, process, analyze, distribute, and programmatically apply the case-specific data in a meaningful way. Therefore, OSHA believes that the risk of disclosure under FOIA is a persuasive reason not to collect individual case information from Forms 300 and 301, as that collection offers only uncertain enforcement value while putting workers' privacy at risk. Nor is that risk speculative. In 2017, an organization invoked FOIA to request [[Page 36498]] that the Department produce electronically-submitted information from Forms 300, 300A, and 301. The Department explained to the requester that it had not begun collecting Forms 300 and 301, and that Form 300A is exempt from disclosure under FOIA. The requester then sued the Department to compel disclosure of electronic information from Form 300A (and presumably would have demanded production of information from Forms 300 and 301, had the Department started collecting them). Although the Department strongly believes that Form 300A is exempt from disclosure under FOIA, the plaintiff's complaint is non-frivolous (cf. Fed. R. Civ. P. 11). It is accordingly possible that the adjudicating court could order disclosure of information in Form 300A. After the exhaustion of any appeals, that order would establish a precedent that other courts may find persuasive in potential future litigation over information in Forms 300 and 301. That risk of potential compelled disclosure is illustrated by a case in which the Department was ordered to disclose OSHA records collecting its individual inspectors' exposures to beryllium. Finkel v. U.S. Dep't of Labor, No. 05-5525, 2007 WL 1963163 (D.N.J. June 29, 2007). In that case, the Department produced de-identified test results, but the court ultimately determined that more identifying information needed to be disclosed, despite FOIA's exemption for ``information . . . in personnel, medical or similar files . . . [whose] release would constitute a clearly unwarranted invasion of personal privacy.'' Arieff v. U.S. Dep't of Navy, 712 F.2d 1462, 1466 (D.C. Cir. 1983), quoted in Finkel, 2007 WL 1963163, at *8. While the Department believes that Finkel would be distinguishable from any future cases seeking FOIA disclosure of information from individual Forms 300 and 301, it is reasonably foreseeable that a court could find it persuasive nonetheless. And as the Finkel case suggests, it may not be possible to fully redact all identifying information in a way that would eliminate privacy risk. Releasing case-specific data to a member of the public could result in the inadvertent release of personally identifiable information (PII) or re-identification of the data with a particular individual. Although automated systems exist to scrub PII from the data (see ``Text De-Identification For Privacy Protection: A Study of its Impact on Clinical Text Information Content,'' St[eacute]phane M. Meystre et al., Journal of Biomedical Informatics 50 (2014) 142-150, Ex. 2061), it is not possible to guarantee the non-release of PII. Simson L. Garfinkel states ``de-identification approaches based on suppressing or generalizing specific fields in a database cannot provide absolute privacy guarantees, because there is always a chance that the remaining data can be re-identified using an auxiliary dataset.'' (see ``De-Identification of Personal Information,'' p. 5, Simson L. Garfinkel, NISTIR 8053, October 2015, Ex. 2060). Similarly, Mehmet Kayaalp observed, ``The de-identification process minimizes the risk of re-identification but has no claim to make it impossible.'' (see ``Modes of De-identification,'' p. 2, Mehmet Kayaalp, MD, Ph.D., U.S. National Library of Medicine, National Institutes of Health, 2017, Ex. 2062). In addition, de-identification is not the same as anonymization. That is, even after all PII has been removed, there is the chance that somebody could re-identify some of the data by linking the fully de-identified data back to the specific person. Unless the U.S. Supreme Court (or sufficient circuit-court precedent, at least) were to definitively affirm that the information in Forms 300 and 301 is exempt from FOIA disclosure, there remains a real risk that the private, sensitive information from those forms could be disclosed regardless of the Department's attempts to keep it private.\2\ In the Department's view, that risk to worker privacy is unacceptable. --------------------------------------------------------------------------- \2\ The gathering of such data also may incentivize cyber- attacks on the Department's IT system. For example, on August 14, 2017, OSHA received an alert from the United States Computer Emergency Readiness Team (US-CERT) in the Department of Homeland Security that indicated a potential compromise of user information for OSHA's Injury Tracking Application (ITA). The ITA was taken off- line as a precaution. A complete scan was conducted by the National Information Technology Center (NITC). The NITC confirmed that there was no breach of the data in the ITA and that no information in the ITA was compromised. Public access to the ITA was restored on August 25, 2017. While this episode showed the security provisions of the ITA to work as designed, it also demonstrated that such a large data collection will inevitably encounter malware. --------------------------------------------------------------------------- b. Collecting Forms 300 and 301 Has Uncertain Enforcement Benefits As its preamble explains, two of the benefits of the May 2016 final rule are more effective identification and targeting of workplace hazards by OSHA and better evaluations of OSHA interventions. See 81 FR 29685. According to the preamble, establishment-specific injury and illness data would allow for analyses that were not possible with the data available before the 2016 rule took effect. The establishment- specific data, the preamble concluded, would allow OSHA to evaluate different types of programs, initiatives, and interventions in different industries and geographic areas, enabling the agency to become more effective and efficient. OSHA reaffirms those benefits--as to the collection of information from the summary Form 300A. Collection of the summary data gives OSHA the information it needs to identify and target establishments with high rates of work-related injuries and illnesses. OSHA has collected summary 300A data for 2016 from 214,574 establishments. With those data, OSHA has already designed a targeted enforcement mechanism for industries experiencing higher rates of injuries and illnesses. OSHA plans to further refine this approach by using the greater volume of 2017 summary data OSHA expects to collect, as explained in the margin.\3\ --------------------------------------------------------------------------- \3\ OSHA expects many more establishments to respond with 2017 summary data this year, for at least two reasons. First, OSHA has analyzed the responses for 2016, has identified thousands of non- responders who were obligated to respond for 2016, and is in the process of informing them of their obligation to respond for 2017. Second, OSHA recently discovered that employers did not receive clear notice of their obligation to respond for 2016, if they were located in state plan states that had not completed adoption of their own state rules. In 2018, OSHA issued a correction clarifying that those employers were indeed obligated to submit Form 300A data for 2017. --------------------------------------------------------------------------- OSHA's use of summary data has a lengthy track record in enforcement, as well. Before the 2016 rule, OSHA had collected these data for 17 years under its OSHA Data Initiative (ODI) and used them to identify and target high-rate establishments through the Site-Specific Targeting (SST) Program. OSHA stopped the ODI in 2013 and the SST in 2014, but those prior programs have still given it considerable experience with using 300A data for targeting. Conversely, OSHA has no prior experience with using the case- specific Form 300 and 301 data to identify and target establishments. OSHA is unsure as to how much benefit such data would have for targeting, or how much effort would be required to realize those benefits. OSHA estimates \4\ that establishments with 250 employees or more would report data from approximately 775,210 Form 301s annually, a total volume three times the number of Form 300As whose data was uploaded for 2016, while also presenting finer-grained information than that captured by Form 300A. To gain (speculative, uncertain) enforcement value from the case-specific data, OSHA would need to divert resources from other priorities, [[Page 36499]] such as the utilization of Form 300A data, which OSHA's long experience has shown to be useful.\5\ --------------------------------------------------------------------------- \4\ See ``PEA calculations,'' Ex. 2067. \5\ Forms 300 and 301 continue to offer substantial enforcement value in the context of on-site inspections. Compliance officers routinely review them as part of those inspections, and the information recorded in those forms can provide a roadmap for the compliance officer to focus the inspection on the most hazardous aspects of the operation. --------------------------------------------------------------------------- OSHA's current priority is to assure better compliance with the existing reporting requirements for severe injuries and fatalities and for 300A data, and to develop and assess intervention programs based on these data. OSHA estimates, for example, that over 100,000 establishments failed to submit their 2016 Form 300A data as required by the 2016 rule, and is currently taking steps aimed at reducing the number of non-responders for the 2017 reporting year.\6\ Similarly, in the September 18, 2014, final rule that updated the severe injury reporting requirements under 29 CFR part 1904.39, OSHA estimated that more than 100,000 reports of in-patient hospitalizations and amputations would be made to the Agency. In calendar year 2017, fewer than 16,000 incidents were reported.7 8 OSHA intends to use available data sources (e.g., workers compensation records) to identify and categorize employers who are non-compliant with the reporting requirements. This information can then be used to focus training and outreach efforts for improving compliance with these reporting requirements. But for the time being, given OSHA's enforcement focus on its readily-usable 300A and severe injury data and its uncertainty about the extent of the benefits from collecting 300 and 301 data, the Department has re-evaluated the utility of the Form 300 and 301 data to OSHA for enforcement purposes and preliminarily determined that its (uncertain) enforcement value does not justify the reporting burden on employers, the burden on OSHA to collect, process, analyze, distribute, and programmatically apply the data, and--especially--the risks posed to worker privacy. --------------------------------------------------------------------------- \6\ In addition to the privacy risks and uncertain enforcement benefits outlined above, electronic collection of the case-specific forms would also cause regulated employers and OSHA to incur financial costs. As explained in the Preliminary Economic Analysis, the annualized cost to employers is estimated at approximately $8.7 million per year. It would also cost OSHA significant sums to make case-specific data ready for enforcement use. In addition to the $450,000 required to add functionality to collect these data through the Injury Tracking Application (ITA), OSHA believes it would require several dedicated full-time employees to collect, process, analyze, distribute, and programmatically apply these data in a meaningful way. \7\ Employers covered by the OSH Act must report certain severe injuries or in-patient hospitalizations within 24 hours, and fatalities within 8 hours, chiefly to ``allow OSHA to carry out timely investigations of these events as appropriate.'' 79 FR 56156. The reported information, which OSHA retains in its records, resembles the information recorded in the case-specific Form 301. But these severe injury/fatality reports constitute a very small percentage of the total universe of Form 301s. In calendar year 2017, fewer than 16,000 incidents were reported. By contrast, OSHA estimates that approximately 775,000 cases would be submitted to OSHA as a result of the existing regulation. (See the Preliminary Economic Analysis.) Requiring electronic submission of Form 301 data would therefore increase almost 48-fold the universe of data potentially susceptible to FOIA. \8\ The Department also collects Form 301 data in two other ways, but neither offers a material precedent for collecting millions of Form 301s' data in a form potentially exposed to FOIA. First, BLS collects approximately 250,000 Form 301s from private establishments for the annual Survey of Occupational Injury and Illness. But under the Confidential Information Protection and Statistical Efficiency Act, BLS is prohibited from releasing in identifiable form information acquired under a pledge of confidentiality for exclusively statistical purposes. Second, the forms are occasionally retained in inspection case files, primarily in cases where OSHA issues a recordkeeping citation and the Form 301 is needed as evidence. In fiscal year 2017, OSHA issued 1,472 recordkeeping citations, 769 of which were for failure to report a fatality or severe injury, citations which were unlikely to result in Form 301 being entered into the case file. So in one year, approximately 703 citations represent possible cases where OSHA inspectors were likely to have retained Form 301 for agency records. --------------------------------------------------------------------------- c. Comments OSHA welcomes comments from the public on the benefits and disadvantages of removing the requirement for employers with 250 or more employees to submit the data from OSHA Forms 300 and 301 to OSHA electronically on an annual basis, including the usefulness of the data for enforcement targeting, the burden on employers of submitting that data, and the risks its collection poses to worker privacy. 2. Section 1904.41, Paragraphs (b)(1)-(8) Paragraphs (b)(1) through (8) of Sec. 1904.41 currently address implementation of the electronic submission requirements for the information on OSHA Forms 300, 301, and 300A. OSHA is proposing to reconcile these provisions with the removal of the annual electronic submission requirement for the information on OSHA Forms 300 and 301 in proposed Sec. 1904.41(a), as explained above. Therefore, the proposed provisions in paragraphs (b)(1)-(8) would provide for the implementation of electronic submission requirements only for the information on OSHA Form 300A. OSHA invites public comment on these proposals during the comment period. 3. Employer Identification Number OSHA limited the proposed data collection in its 2013 NPRM (78 FR 67254) to Improve Tracking of Workplace Injuries and Illnesses to records that employers were already required to collect under part 1904. Accordingly, the May 2016 final rule only required the electronic submission of such records. These records do not include the EIN. OSHA now seeks comment on this proposal to add a requirement for employers to submit their EIN along with their injury and illness data because the Agency believes such a requirement could reduce or eliminate duplicative reporting. Collecting EINs would increase the likelihood that the Bureau of Labor Statistics (BLS) would be able to match data collected by OSHA under the electronic reporting requirements to data collected by BLS for the Survey of Occupational Injury and Illness (SOII). The BLS records contain the EINs for establishments, and including the EIN in the OSHA collection will increase the accuracy of matching the OSHA-collected data to the BLS- collected data. The ability to accurately match the data is critical for evaluating how BLS might use OSHA-collected data to supplement the SOII, which in turn would enhance the ability of OSHA and other users of the SOII data to identify occupational injury and illness trends and emerging issues. Furthermore, the ability of BLS to match the OSHA- collected data also has the potential to reduce the burden on employers who are required to report injury and illness data both to OSHA (for the electronic recordkeeping requirement) and to BLS (for the SOII). OSHA and BLS are also collaborating to identify technological approaches to reduce respondent burden. This collaboration includes exploring changes to both data collection systems as well as real-time sharing of OSHA data with BLS, with the goal of streamlining the reporting process for respondents covered under both collections. The SOII is an establishment survey and is a comprehensive source of national estimates of nonfatal injuries and illnesses that occur in the workplace. The SOII collects data on non-fatal injuries and illnesses for each calendar year from a sample of employers based on recordable injuries and illnesses as defined by OSHA in 29 CFR part 1904. Using data from the survey, BLS estimates annual counts [[Page 36500]] and rates by industry and state for workers in private industry and state and local government. In addition, the SOII provides details about the most severe injuries and illnesses (those involving days away from work), including characteristics of the workers involved and details of the circumstances surrounding the incident, using data collected on Forms 300A and 301 from the sampled establishments (see BLS Handbook of Methods: https://www.bls.gov/opub/hom/soii/home.htm). Given the limitations of matching establishments across databases, there is currently no methodological approach to completely match establishments that currently submit data under both OSHA's collection of injury and illness data under Sec. 1904.41 and the BLS data collection for the SOII. BLS cannot provide its collected data to OSHA because the Confidential Information Protection and Statistical Efficiency Act of 2002 (Pub. L. 107-347, 116 Stat. 2899 (2002)) prohibits BLS from releasing establishment-specific data to either OSHA or the general public. Although OSHA can provide the data it collects to BLS, without the EIN it is very difficult to match the establishments in OSHA's data collection to the establishments in BLS's data collection. Not having the EIN increases the resources necessary to produce the match and reduces the accuracy of the match. Including the EIN in the electronic reporting to OSHA would improve BLS's ability to accurately match the OSHA-collected data with the SOII data. After evaluation of the accuracy of the data matching, it may be possible for BLS to use the OSHA-collected data in the generation of occupational injuries and illnesses estimates, reducing burden on employers. If the EIN is not collected and the data from the two sources cannot be accurately matched, reducing this burden becomes nearly impossible. Collecting the EIN would thus accord with a recommendation in the 2018 National Academy of Sciences, Engineering, and Medicine report on A Smarter National Surveillance System for Occupational Safety and Health in the 21st Century: ``To avoid duplicate reporting, OSHA and BLS should integrate data-collection efforts so that employers selected in the annual BLS sample for SOII but reporting electronically to OSHA need not make separate reports to BLS'' (see Ex. 2063). Including the EIN as part of electronic reporting might also improve the quality and utility of the collected data. For example, OSHA could use the EIN to identify errors such as multiple submissions of data from the same establishment and to link multiple years of data submissions from the same establishment. The EIN could also be used to match against other databases that contain this identifier to add additional characteristics to the data. For example, submissions could be linked to the OSHA Information System (OIS) to identify the previous enforcement history of the establishment when the inspection records contain the EIN. OSHA notes that EINs do not have the same level of protection as Social Security numbers. For example, any publicly-traded company must put its EIN on public filings with the U.S. Securities and Exchange Commission. Within DOL, the Employee Benefits Security Administration (EBSA) discloses EINs associated with filings of the Annual Returns/ Reports of Employee Benefit Plans (Form 5500); EIN is a searchable field on EBSA's ``Form 5500/5000-SF Filing Search'' web page (see https://www.efast.dol.gov/welcome.html), and the search results are listed in ascending order by EIN. Other agencies also make EINs public in filings, such as the Federal Communications Commission's Commission Registration System (CORES). Businesses also have to share EINs with contractors and clients for tax reporting, such as filing an IRS Form 1099. As a result, DOL has not generally withheld EINs from disclosure. OSHA invites public comment on the advantages and disadvantages of requiring employer submission of EINs and on whether employers required to electronically report information to OSHA under part 1904 would consider the EIN to be exempt from disclosure, either as confidential business information or for another reason. B. Additional Questions OSHA seeks comments and data from the public regarding the proposed rule to remove the requirement for establishments with 250 or more employees that are required to routinely keep injury and illness records to electronically submit information from the OSHA Form 300 and 301 and to add the requirement for covered establishments to submit their EIN. More specifically, the following questions are relevant to this rulemaking: 1. What risks to worker privacy are posed by the electronic collection of information from Forms 300 and 301 from establishments with 250 or more workers? How likely are these risks to materialize? How could OSHA make them less likely, and what resources would be required? Given the limitations identified above, what are the benefits of electronically collecting this information? 2. Besides the Bureau of Labor Statistics, what other agencies or organizations in the public and private sectors use automated coding (autocoding) systems for text data in data collections? 3. Besides the Department of Health and Human Services, what other agencies and organizations in the public and private sectors use automated de-identification systems to remove PII from text data before making the data available to the public? What challenges have they faced in using those systems to keep PII protected? 4. Would employers required to electronically report information to OSHA under part 1904 consider the EIN to be exempt from disclosure, either as confidential business information or for another reason? Are there any circumstances where the EIN would be considered Personally Identifiable Information (PII)? OSHA also seeks comments on privacy concerns that might arise from employers submitting their EIN. OSHA is only seeking comment on the proposed changes to Sec. 1904.41 in this NPRM, and not on any other aspects of part 1904. IV. Preliminary Economic Analysis and Regulatory Flexibility Certification A. Introduction E.O. 12866 and E.O. 13563 require that OSHA estimate the benefits, costs, and net benefits of proposed and final regulations. Executive Orders 12866 and 13563, the Regulatory Flexibility Act (5 U.S.C. 601- 612) and the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501-1571) also require OSHA to estimate the costs, assess the benefits, and analyze the impacts of certain rules that the Agency promulgates. Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other effects; distributive impacts; and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This proposed rule would protect worker privacy and reduce costs for employers and OSHA by amending OSHA's recordkeeping regulation to remove the requirement for the annual electronic collection of information [[Page 36501]] from OSHA Forms 300 and 301. OSHA estimates that the rule would have net cost savings of $8.28 million per year at a 3 percent discount rate, including $8.23 million per year for the private sector and $52,754 per year for the government. Annualized at a 7 percent discount rate, the proposed rule would have net cost savings of $8.25 million per year, including $8.18 million per year for the private sector and $64,070 per year for the government. Annualized at a perpetual 7 percent discount rate, the proposed rule would have net cost savings of $8.35 million per year. As explained above, OSHA has preliminarily determined that the electronic collection of information in the OSHA 300 and 301 forms poses risks to worker privacy and additional cost to employers and OSHA that outweigh the uncertain enforcement benefits of collecting it. The proposed rule is not an ``economically significant regulatory action'' under E.O. 12866 or UMRA (2 U.S.C. 1532(a)), and it is not a ``major rule'' under the Congressional Review Act (CRA) (5 U.S.C. 801 et seq.). The Agency estimates that the rulemaking imposes far less than $100 million in annual economic costs. In addition, it does not meet any of the other criteria specified by UMRA or CRA for a significant regulatory action or major rule. B. Cost Savings For this PEA, OSHA relied on the Final Economic Analysis (FEA) in the May 2016 final rule (81 FR 29624), updated to include more recent data and some modifications in OSHA's methodology. OSHA obtained the estimated cost of electronic data submission by multiplying the compensation per hour of the person expected to perform the task of electronic data submission by the time required to submit the data. As in the 2016 FEA, OSHA selected an employee in the occupation of Industrial Health and Safety Specialist and Technician as being at the appropriate salary level. The mean hourly wage for Standard Occupational Classification (SOC) code 29-9011, Industrial Health and Safety Specialists, in the May 2016 data from the BLS Occupational Employment Survey (OES), was $34.85.\9\ (The mean hourly wage used in the 2016 FEA was $33.88, using May 2014 data from OES.) This was the raw wage and did not include the other fringe benefits that make up full hourly compensation or overhead costs calculated in this document. Through the current electronic collection of 300A data, OSHA is collecting data on the occupations of employees responsible for submitting data. This information is collected as a part of the sign-up process where establishments create their user accounts; one of the fields for a new user is their job title. OSHA may use these data to revise the estimates in the final rule. In addition, OSHA welcomes comment on whether ``Industrial Health and Safety Specialist and Technician'' is the appropriate salary level for the employee performing this task. --------------------------------------------------------------------------- \9\ See https://www.bls.gov/oes/current/oes299011.htm. --------------------------------------------------------------------------- The June 2017 data from the BLS National Compensation Survey \10\ reported a mean fringe benefit factor of 1.44 for workers in private industry. (The mean fringe benefit factor used in the 2016 FEA was the same, using December 2014 data from the BLS National Compensation Survey.) OSHA multiplied the mean hourly wage by the mean fringe benefit factor to obtain an estimated total compensation (wages and benefits) for Industrial Health and Safety Specialists of $50.18 per hour ($34.85 x 1.44). The estimated total compensation (wages and benefits) used in the 2016 FEA was $48.78 per hour, so this estimate in this PEA represents an increase of 3 percent, due to the increase in the mean hourly wage. --------------------------------------------------------------------------- \10\ See https://www.bls.gov/web/ecec/ececqrtn.txt. --------------------------------------------------------------------------- OSHA recognizes that not all firms assign the responsibility for recordkeeping to an Industrial Health and Safety Specialist. For example, a smaller firm may use a bookkeeper or a plant manager, while a larger firm may use a higher-level specialist. However, OSHA believes that the calculated cost of $50.18 per hour is a reasonable estimated total hourly compensation for a typical record keeper. Additionally, after publishing the May 2016 final rule, the Department of Labor determined that it is appropriate in some circumstances to account for overhead expenses as part of the methodology used to estimate the costs and economic impacts of OSHA regulations. Therefore, for this PEA, OSHA is updating the projected costs of the requirement for establishments with 250 or more employees to submit the information from OSHA Forms 300 and 301 to OSHA, as reflected in the 2016 FEA, by adding an overhead rate equivalent to 17 percent of base wages. For this PEA, OSHA included an overhead rate when estimating the marginal cost of labor in its primary cost calculation. Overhead costs are indirect expenses that cannot be tied to producing a specific product or service. Common examples include rent, utilities, and office equipment. Unfortunately, there is no general consensus on the cost elements that fit this definition. The lack of a common definition has led to a wide range of overhead estimates. Consequently, the treatment of overhead costs needs to be case-specific. OSHA adopted an overhead rate of 17 percent of base wages. This is consistent with the overhead rate used for sensitivity analyses in the FEA in support of the 2017 final rule delaying the deadline for submission of 300A data (82 FR 55761) and the FEA in support of OSHA's 2016 final standard on Occupational Exposure to Respirable Crystalline Silica.\11\ For example, to calculate the total labor cost for an Industrial Health and Safety Specialist, Standard Occupational Classification (SOC) code 29-9011, three components are added together: base wage ($34.85) + fringe benefits ($15.33, derived as 44% of $34.85) + applicable overhead costs ($5.92, derived as 17% of $34.85). This increases the labor cost of the fully-loaded hourly wage for an Industrial Health and Safety Specialist to $56.10. --------------------------------------------------------------------------- \11\ See the sensitivity analyses in the Improved Tracking FEA (https://www.thefederalregister.org/fdsys/pkg/FR-2017-11-24/pdf/2017-25392.pdf, page 55765) and the FEA in support of OSHA's 2016 final standard on Occupational Exposure to Respirable Crystalline Silica (81 FR 16285) (https://www.thefederalregister.org/fdsys/pkg/FR-2016-03-25/pdf/2016-04800.pdf pp.16488-16492.). The methodology was modeled after an approach used by the Environmental Protection Agency. More information on this approach can be found at: U.S. Environmental Protection Agency, ``Wage Rates for Economic Analyses of the Toxics Release Inventory Program,'' June 10, 2002 (Ex. 2066). This analysis itself was based on a survey of several large chemical manufacturing plants: Heiden Associates, Final Report: A Study of Industry Compliance Costs Under the Final Comprehensive Assessment Information Rule, Prepared for the Chemical Manufacturers Association, December 14, 1989, Ex. 2065. --------------------------------------------------------------------------- For time required for the data submission in this PEA, OSHA uses the same estimated unit time requirements as reported by BLS in its paperwork burden analysis for the Survey of Occupational Injuries and Illnesses (SOII) (OMB Control Number 1220-0045, expires December 31, 2018). BLS estimated 10 minutes per recordable injury/illness case for electronic submission of the information on Form 300 (Log of Work- Related Injuries and Illnesses) and Form 301 (Injury and Illness Incident Report). In addition, in the 2016 FEA, OSHA estimated 2 minutes more time than the BLS paperwork burden, for a total of 12 minutes per recordable case (10 minutes per case for Form 301 entries plus 2 minutes per case for entry of Form 300 log entries), to account for the [[Page 36502]] differences between BLS and OSHA submission requirements. The proposed rule would remove the requirement for establishments with 250 or more employees to report information from OSHA Forms 300 and 301. To estimate the number of injuries and illnesses that would be reported by covered establishments with 250 or more employees under the current rule, OSHA assumed that the total number of recordable cases in establishments with 250 or more employees is proportional to the establishments' share of employment within each industry.\12\ OSHA then used the most recent SOII data to estimate that, without the proposed rule, covered establishments with 250 or more employees would report 775,210 injury and illness cases per year.\13\ The cost per case is estimated at $11.22 (12/60 x $56.10), and the total cost is $8,699,173 ($11.22 per case x 775,210 cases).\14\ Therefore, the proposal to remove the requirement to submit the information from OSHA Form 300 and 301 to OSHA electronically would result in a total cost savings to the private sector of $8,699,173.\15\ --------------------------------------------------------------------------- \12\ OSHA welcomes comments on this assumption. \13\ The 2016 FEA estimated 713,397 injury and illness cases per year using the same methodology and the most recent SOII data then available (see ``PEA calculations,'' Ex. 2067). \14\ In addition, note that the totals in tables in this chapter, as well as totals summarized in the text, may not precisely sum from underlying elements due to rounding. The precise calculation of the numbers in the PEA appears in the spreadsheet (see ``PEA calculations,'' Ex. 2067). \15\ Overall, the estimated cost savings of this proposal to remove the provision for electronic reporting of case data is 25 percent greater than the 2016 estimated cost of promulgating the provision ($6,948,487). There are three reasons for this 25 percent increase: The number of establishments with more than 250 employees has grown, the mean hourly wage has increased, and OSHA is now including a 17 percent overhead estimate in the cost estimates. --------------------------------------------------------------------------- The 2016 FEA also included government costs for the rule because creating a reporting and data collection system was a significant fraction of the total costs of the regulation. Not collecting the case- specific data from OSHA Form 300 and 301 would generate a small additional cost savings for the government because that portion of the reporting and data collection system has not yet been created and would not have to be created under the proposed rule. OSHA estimates a lump sum savings from not creating the software to collect the 300 and 301 data to be $450,000. Annualized at 3 percent over 10 years, this would represent a savings to the government of $52,754 per year. OSHA also annualized the cost savings at 7 percent over 10 years, and using this discount rate, the cost savings would be slightly higher: $64,070. C. New Costs (From the EIN Collection) Establishments would be newly required to submit the employer's EIN along with the employer's electronic data submission. Some employees given this task would already know their employer's EIN from their other duties, but others would need to spend some time finding out this information. OSHA estimates an average of 5 minutes for an employee to find out his or her employer's EIN and to enter it on the submission form. Hence the unit cost for a submission would be the wage of the employee who submitted the information multiplied by his or her time plus overhead, or $4.68 [(5/60) x $56.10]. The electronic reporting system is designed to retain information about each establishment based on the login information, including the EIN. Therefore, employers would only have to provide OSHA their EIN once, so this would not be a recurring cost. However, it would be an additional one-time cost for employers who are newly reporting data because, for example, the establishment is new or the employer newly reached the reporting threshold for employment size. OSHA has estimated that each year there will be about 10.15 percent more establishments that will be required to report their EIN. This 10.15 percent figure is derived from the U.S. Census Bureau Statistics of U.S. Businesses (SUSB), specifically the employment change data set \16\ which show the increase in U.S. business establishments from 2014 to 2015. In 2015 there were 689,819 new establishments, out of a total 6,795,201 establishments. Dividing the first figure by the second gives a change of about 10.15 percent. --------------------------------------------------------------------------- \16\ Source: https://www2.census.gov/programssurveys/susb/datasets/2015/us_state_emplchange_2014-2015.txt. --------------------------------------------------------------------------- To calculate the total estimated costs for covered establishments to provide their EINs, OSHA used establishment and employment data from the U.S. Census County Business Patterns (CBP).\17\ The three categories of included establishments are (1) all establishments with 250 or more employees in industries that are required to routinely keep OSHA injury and illness records, (2) establishments with 20-249 employees in certain high-hazard industries, as defined in the Appendix to the May 2016 final rule, and (3) farms and ranches with 20 or more employees. CBP data do not include numbers of farms and ranches with 20 or more employees, so in the May 2016 final rule, OSHA used data from the 2012 Census of Agriculture. Updated data from the 2017 Census of Agriculture are not available at this time, so OSHA will continue to use a count of 20,623 farms with 20 or more employees. CBP data show that there are 36,903 establishments with 250 or more employees in industries required to routinely keep records and 405,666 establishments with 20-249 employees in the designated high-hazard industries. Combining these figures with 20,623 farms and ranches results in a total of 463,192 establishments that would be required to submit an EIN under the proposed rule. With a cost per establishment of $4.68, the total first year cost of providing EINs would be $2,165,751 (463,192 x $4.68).\18\ When this cost is annualized over ten years, the annualized cost at a 3 percent discount rate is $253,892 and at a 7 percent discount rate the cost is $308,354. --------------------------------------------------------------------------- \17\ For the CBP see: https://www.census.gov/programs-surveys/cbp.html. \18\ In addition, note that the totals in tables in this chapter, as well as totals summarized in the text, may not precisely sum from underlying elements due to rounding. The precise calculation of the numbers in the PEA appears in the spreadsheet (see ``PEA calculations,'' Ex. 2067). --------------------------------------------------------------------------- There are 463,192 establishments (including establishments with more than 250 employees, those with 20-249 employees in certain NAICS codes, and farms with more than 20 employees) that would be subject to reporting their EIN in the first year under this proposal. With 10.15 percent new establishments each year, there will be an additional 47,012 establishments each year. The cost for those establishments will be $4.68 x 47,012 or $219,858. This cost does not occur in the first year. OSHA annualized 9 years of new establishment costs over ten years, which results in annualized costs of $213,262 at a discount rate of 3 percent and $204,468 at a 7 percent discount rate. The EIN data field is already included in the reporting system design, so there would be no additional government costs associated with submittal of the EIN. D. Net Cost Savings The cost savings of the proposed rule, the new costs associated with collecting the EIN, and the net total cost savings are shown in Table 1. Combining the cost savings to the private sector and to the government, the estimated total annual cost savings from the proposed rule would be $8,751,927 at a 3 percent discount rate and $8,763,243 at 7 percent discount rate. The additional costs to the private sector from [[Page 36503]] collection of the EIN are estimated to be $467,194 at a 3 percent discount rate and $512,822 at 7 percent discount rate. The net cost savings for this proposal are estimated to be $8,284,733 at a 3 percent discount rate and $8,250,421 at 7 percent discount rate. Table I--Total Cost Savings and Total Additional Costs of the Proposed Rule ------------------------------------------------------------------------ Annual cost Cost savings element savings ------------------------------------------------------------------------ Cost savings for eliminating electronic submission of $8,699,173 part 1904 records by establishments with 250 or more employees (Total Private Sector Savings)............... Total Government Cost Savings, 3 percent discount rate 52,754 over ten years......................................... Total Government Cost Savings, 7 percent discount rate 64,070 over ten years......................................... Total Cost Savings per year, 3 percent discount rate 8,751,927 over ten years......................................... Total Cost Savings per year, 7 percent discount rate 8,763,243 over ten years......................................... ------------------------------------------------------------------------ New costs from EIN collection Cost ------------------------------------------------------------------------ First Year EIN Cost..................................... $2,165,751 Annualized First Year Costs, 3 percent discount rate 253,892 over ten years......................................... Annualized First Year Costs, 7 percent discount rate 308,354 over ten years......................................... Subsequent Annual EIN Costs (from new establishments), 219,858 starting in second year................................ Subsequent annual EIN Cost Annualized at a 3 percent 213,262 discount rate over ten years........................... Subsequent annual EIN Cost Annualized at a 7 percent 204,468 discount rate over ten years........................... Annualized Total EIN Cost, 3 percent discount rate over 467,194 ten years.............................................. Annualized Total EIN Cost, 7 percent discount rate over 512,822 ten years.............................................. Net Cost Savings, 3 percent discount rate over ten years 8,284,733 Net Cost Savings, 7 percent discount rate over ten years 8,250,421 ------------------------------------------------------------------------ There could be substantial cost savings from requiring covered employers to include the EIN in their reporting. There is roughly a 40% overlap between the BLS SOII sample and private sector establishments required to report to OSHA. If OSHA collected Form 300A from all covered private sector units and BLS were able to fully match these units and use them in generating SOII estimates, the reduction in duplication would represent approximately 15,000 hours of respondent burden. In its SOII paperwork burden analysis, BLS estimates the total cost of submitting this form for private sector establishments to be $891,000. The potential cost savings for avoiding duplication is 40 percent of this value--$356,000. Considering that the cost savings for avoiding duplication is perpetual, the total net savings for adding the EIN is estimated to be $2,648,850 at a 3 percent discount rate and $126,294 at 7 percent discount rate in a perpetual time horizon. E. Benefits The value of worker privacy is impossible to quantify, but no less significant because of that fact. This proposed rule would protect worker privacy by preventing routine government collection of information that may be quite sensitive, including descriptions of workers' injuries and the body parts affected, and thereby avoiding the risk that such information might be publicly disclosed under FOIA. OSHA further believes that the collection of individual information from Forms 300 and 301 could add enforcement benefits, but those benefits are uncertain and difficult to quantify. As noted above, these benefits are uncertain because OSHA lacks experience with the use of that information and is not sure about how many resources it would take to make meaningful use of that information. The loss of these uncertain benefits is also impossible to quantify. OSHA has preliminarily determined that the (substantial) benefits to worker privacy outweigh the (uncertain) foregone benefits to enforcement. It welcomes public comment on this determination, including on its preliminary conclusions that neither worker privacy nor enforcement benefits can be meaningfully quantified. F. Economic Feasibility Removing the requirement for establishments with 250 or more employees to submit the information from OSHA Forms 300 and 301 to OSHA annually would reduce costs and so would have no negative feasibility effects. The EIN requirement would cost an estimated $4.68 per establishment, still leaving a large overall reduction in costs, and so would be economically feasible. Hence, OSHA concludes that the proposed rule is economically feasible. G. Regulatory Flexibility Certification The current requirement for annual electronic submission of information from OSHA Forms 300 and 301 affects only a very small minority of small firms. In many industry sectors, there are no small firms with at least 250 employees. Even in those industry sectors where the definition of small firm includes some firms with at least 250 employees, the overwhelming majority of small firms have fewer than 250 employees. However, there will be some small firms affected in some industries. Removing this requirement as proposed would result in a cost savings of, on average, $236 per establishment for each establishment with 250 or more employees affected by the 2016 Final Rule. This number is derived by dividing the total cost savings of $8,699,173 by 36,903 affected establishments with 250 or more employees. Such a small amount of cost savings would not have a significant impact on a firm with 250 or more employees. As above, removing the requirement for establishments with 250 or more employees to submit the information from OSHA Forms 300 and 301 annually to OSHA would reduce costs, and the estimated cost of the EIN requirement is $4.68 per establishment, a negligible amount. Hence, per Sec. 605 of the Regulatory Flexibility Act, OSHA certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities. V. OMB Review Under the Paperwork Reduction Act of 1995 This proposed rule would revise an existing collection of information, as [[Page 36504]] defined and covered by the Paperwork Reduction Act of 1995 (PRA) and its implementing regulations, that is subject to review by OMB under the PRA (44 U.S.C. 3501-3521) and OMB regulations (5 CFR part 1320). The PRA requires that agencies obtain approval from OMB before conducting any collection of information (44 U.S.C. 3507). The PRA defines a ``collection of information'' as ``the obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public of facts or opinions by or for an agency regardless of form or format'' (44 U.S.C. 3502(3)(A)). OSHA's existing recordkeeping forms consist of the OSHA 300 Log, the 300A Summary, and the 301 Incident Report. These forms are contained in the Information Collection Request (ICR) (paperwork package) titled 29 CFR part 1904 Recording and Reporting Occupational Injuries and Illnesses, which OMB approved under OMB Control Number 1218-0176. The proposed rule would affect the ICR estimates as follows: 1. Establishments that are subject to the part 1904 requirements and have 250 or more employees would no longer be required to electronically submit information recorded on their OSHA Forms 300 and 301 to OSHA once a year. 2. Establishments subject to the data collection would provide one additional data element, the EIN. The burden hours for the electronic reporting requirements under Sec. 1904.41 if revised as proposed are estimated to be 136,641 per year. There are no capital costs for this collection of information. More specifically, this action proposes to amend the recordkeeping regulation to remove the requirement for establishments that are required to keep injury and illness records under part 1904, and that had 250 or more employees in the previous year, to electronically submit to OSHA or OSHA's designee case characteristic information from the OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report) once a year. Under the proposed rule, these establishments would only be required to submit summary information from the OSHA Form 300A. There are approximately 37,000 establishments that would no longer be subject to a requirement to submit the information on OSHA Forms 300 and 301 for approximately 775,000 injury and illness cases under the proposed rule. OSHA used 2015 SOII data (https://www.bls.gov/iif/oshwc/osh/os/ostb4734.pdf) to estimate that, without the proposed rule, covered establishments with 250 or more employees would report 775,210 injury and illness cases per year.) Also, OSHA requests comment on requiring 463,000 employers to submit their EIN to OSHA. The table below presents the components of the collection that comprise the ICR estimates. ---------------------------------------------------------------------------------------------------------------- Estimated burden under current Estimated burden under proposed reporting requirements reporting requirements ----------------------------------------------------------------------------- Total Total Number of Unit hours burden Number of Unit hours burden cases per case hours cases per case hours ---------------------------------------------------------------------------------------------------------------- Sec. 1904.41(a)(1)--Create a new 3,690 0.167 616 3,690 0.167 616 account.......................... Sec. 1904.41(a)(1)--provide EIN. 0 0.083 0 36,903 0.083 3,063 Sec. 1904.41(a)(1)--electronic 36,903 0.167 6,163 36,903 0.167 6,163 submission of OSHA Form 300A data by establishments with 250 or more employees................... Sec. 1904.41(a)(1)--electronic 775,210 0.2 155,042 0 0.2 0 submission of injury and illness case data by establishments with 250 or more employees............ Sec. 1904.41(a)(2)--Create a new 40,567 0.167 6,775 40,567 0.167 6,775 account.......................... Sec. 1904.41(a)(2)--provide EIN. 0 0.083 0 426,285 0.083 35,382 Sec. 1904.41(a)(2)--electronic 385,383 0.167 64,359 385,383 0.167 64,359 submission of OSHA Form 300A data by establishments with 20 or more employees but fewer than 250 employees in designated industries....................... Sec. 1904.41(a)(2)--electronic 20,283 1 20,283 20,283 1 20,283 submission of OSHA Form 300A data by establishments with 20 or more employees but fewer than 250 employees in designated industries--with no internet connection....................... Sec. 1904.41(a)(3)--Electronic 0 0 0 0 0 0 submission of part 1904 records upon notification................ ----------------------------------------------------------------------------- Total burden hours............ ........... ........... 253,238 ........... ........... 136,641 ---------------------------------------------------------------------------------------------------------------- As required by 5 CFR 1320.5(a)(1)(iv) and 1320.8(d)(2), the following paragraphs provide information about this ICR. 1. Title: Recording and Reporting Occupational Injuries and Illnesses (29 CFR part 1904). 2. Number of respondents: 1,002,912. 3. Frequency of responses: Annually. 4. Number of responses: 5,839,692. 5. Average time per response: 22 minutes. 6. Estimated total burden hours: 2,136,953 hours. 7. Estimated costs (capital-operation and maintenance): $0. Members of the public may comment on the paperwork requirements in this proposed regulation by sending their written comments to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for the Department of Labor, OSHA (Regulation Identifier Number (RIN) 1218-AD17), Office of Management and Budget, Room 10235, Washington, DC 20503; telephone: 202-395-6929; fax: 202-395-6881 (these are not toll- free numbers); email: [email protected]. Please limit the comments to only the proposed changed provisions of the recordkeeping rule related to information collection (i.e., proposed Sec. 1904.41). OSHA also encourages commenters to submit their comments on these paperwork requirements to the rulemaking docket (OSHA-2013-0023), along with their comments on other parts of the proposed regulation. For instructions on submitting these comments to the docket, see the sections of this Federal Register document titled DATES and ADDRESSES. Comments submitted in response to this document are public records; therefore, OSHA cautions commenters about submitting personal information such as Social Security numbers and dates of birth. To access the docket to read or download comments and other materials related to this paperwork determination, including the complete ICR, use the procedures described under [[Page 36505]] the section of this document titled ADDRESSES. You may obtain an electronic copy of the complete ICR by going to the website at http://www.reginfo.gov/public/do/PRAMain, then selecting ``Department of Labor'' under ``Currently Under Review,'' then clicking on ``submit.'' This will show all of the Department's ICRs currently under review, including the ICRs submitted for proposed rulemakings. To make inquiries, or to request other information, contact Mr. Charles McCormick, Directorate of Standards and Guidance, OSHA, telephone: (202) 693-1740; email: [email protected]. OSHA and OMB are particularly interested in comments that: Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; Enhance the quality, utility, and clarity of the information to be collected; and Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. OSHA notes that a federal agency cannot conduct or sponsor a collection of information unless OMB approves it under the PRA, and the information collection displays a currently-valid OMB control number. Also, notwithstanding any other provision of law, no party shall be subject to penalty for failing to comply with a collection of information if the collection of information does not display a currently-valid OMB control number. OSHA will publish a notice of OMB's action when it publishes the final regulation, or, if not approved by then, when OMB authorizes the information collection requirements under the PRA. VI. Unfunded Mandates For purposes of the UMRA (2 U.S.C. 1501-1571), as well as E.O. 13132 (64 FR 43255 (Aug. 4, 1999)), this rule does not include any federal mandate that may result in increased expenditures by state, local, and tribal governments, or increased expenditures by the private sector of more than $100 million. VII. Federalism The proposed rule has been reviewed in accordance with Executive Order 13132, regarding federalism. Because this rulemaking involves a ``regulation'' issued under Sections 8 and 24 of the OSH Act, and is not an ``occupational safety and health standard'' issued under Section 6 of the OSH Act, the rule will not preempt state law (29 U.S.C. 667(a)). The effect of the proposed rule on states is discussed in Section VIII, State Plan States. VIII. State Plan States Pursuant to section 18 of the OSH Act (29 U.S.C. 667) and the requirements of 29 CFR 1904.37 and 1902.7, within 6 months after publication of the final OSHA rule, state-plan states must promulgate occupational injury and illness recording and reporting requirements that are substantially identical to those in 29 CFR part 1904 ``Recording and Reporting Occupational Injuries and Illnesses.'' All other injury and illness recording and reporting requirements (for example, industry exemptions, reporting of fatalities and hospitalizations, record retention, or employee involvement) that are promulgated by state-plan states may be more stringent than, or supplemental to, the federal requirements, but, because of the unique nature of the national recordkeeping program, states must consult with OSHA and obtain approval of such additional or more stringent reporting and recording requirements to ensure that they will not interfere with uniform reporting objectives (29 CFR 1904.37(b)(2), 29 CFR 1902.7). Also because of the need for a consistent national data system, employers in state-plan states must comply with federal requirements for the submission of data under part 1904 whether or not the state plan has implemented a substantially identical requirement by the time the federal requirement goes into effect. Therefore, although states will need to update their plans to match the Federal plan, there is no discretion involved, so this change should be relatively simple to make. There are 28 state plan states and territories. The states and territories that cover private sector employers are Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming. Connecticut, Illinois, Maine, New Jersey, New York, and the Virgin Islands have OSHA-approved state plans that apply to state and local government employees only. IX. Public Participation Because this rulemaking involves a regulation rather than a standard, it is governed by the notice and comment requirements in the Administrative Procedure Act (APA) (5 U.S.C. 553) rather than section 6 of the OSH Act (29 U.S.C. 655) and 29 CFR part 1911 (both of which only apply to ``promulgating, modifying or revoking occupational safety or health standards'' (29 CFR 1911.1)). Therefore, the OSH Act requirement to hold an informal public hearing (29 U.S.C. 655(b)(3)) on a proposed standard, when requested, does not apply to this rulemaking. A. Public Submissions OSHA invites comment on all aspects of the proposed rule. OSHA specifically encourages comment on the issues raised in the questions subsection. OSHA is not seeking comment on any other aspects of part 1904. Interested persons must submit comments by September 28, 2018. The Agency will carefully review and evaluate all comments, information, and data, as well as all other information in the rulemaking record, to determine how to proceed. You may submit comments in response to this document (1) electronically at https://www.regulations.gov, which is the federal e- rulemaking portal; (2) by fax; or (3) by hard copy. All submissions must identify the agency name and the OSHA docket number (Docket No. OSHA-2013-0023) or RIN (RIN 1218-AD17) for this rulemaking. You may supplement electronic submissions by uploading document files electronically. If, instead, you wish to mail additional materials in reference to an electronic or fax submission, you must submit three copies to the OSHA docket office (see ADDRESSES section). The additional materials must clearly identify your electronic comments by name, date, and docket number, so that OSHA can attach them to your comments. Because of security-related procedures, the use of regular mail may cause a significant delay in the receipt of submissions. For information about security procedures concerning the delivery of materials by hand, express delivery, messenger, or courier service, please contact the OSHA docket office at (202) 693-2350 (TTY (877) 889- 5627). B. Access to Docket Comments in response to this Federal Register document are posted at https:// [[Page 36506]] 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 https://www.regulations.gov index, some information (e.g., copyrighted material) is not publicly available to read or download through that website. All comments and exhibits, including copyrighted material, are available for inspection at the OSHA docket office. Information on using https://www.regulations.gov to submit comments and access dockets is available on that website. Contact the OSHA docket office for information about materials not available through the website and for assistance in using the internet to locate docket submissions. Electronic copies of this Federal Register document are available at https://www.regulations.gov. This document, as well as news releases and other relevant information, also are available at OSHA's web page at http://www.osha.gov. For specific information about OSHA's Recordkeeping rule, go to the Recordkeeping page on OSHA's web page. List of Subjects in 29 CFR Part 1904 Health statistics, Occupational safety and health, Reporting and recordkeeping requirements, State plans. Signed at Washington, DC, on July 23, 2018. Loren E. Sweatt, Deputy Assistant Secretary of Labor for Occupational Safety and Health. Amendments to Regulations For the reasons stated in the preamble, OSHA proposes to amend part 1904 of chapter XVII of title 29 as follows: PART 1904--[AMENDED] Subpart E--Reporting Fatality, Injury and Illness Information to the Government 0 1. The authority citation for subpart E of 29 CFR part 1904 continues to read as follows: Authority: 29 U.S.C. 657, 673, 5 U.S.C. 553, and Secretary of Labor's Order 1-2012 (77 FR 3912, Jan. 25, 2012). 0 2. In Sec. 1904.41, revise the section heading and paragraph (a)(1), add paragraph (a)(4), and revise paragraph (b) to read as follows: Sec. 1904.41 Electronic submission of Employer Identification Number (EIN) and injury and illness records to OSHA. (a) * * * (1) Annual electronic submission of OSHA Form 300A Summary of Work- Related Injuries and Illnesses by establishments with 250 or more employees. If your establishment had 250 or more employees at any time during the previous calendar year, and this part requires your establishment to keep records, then you must electronically submit information from OSHA Form 300A Summary of Work-Related Injuries and Illnesses to OSHA or OSHA's designee. You must submit the information once a year, no later than the date listed in paragraph (c) of this section of the year after the calendar year covered by the form (for example, 2019 for the 2018 form). * * * * * (4) Electronic submission of the Employer Identification Number (EIN). For each establishment that is subject to these reporting requirements, you must provide the EIN used by the establishment. * * * * * (b) Implementation--(1) Does every employer have to routinely submit this information to OSHA? No, only two categories of employers must routinely submit this information. First, if your establishment had 250 or more employees at any time during the previous calendar year, and this part requires your establishment to keep records, then you must submit the required information to OSHA once a year. Second, if your establishment had 20 or more employees but fewer than 250 employees at any time during the previous calendar year, and your establishment is classified in an industry listed in appendix A to subpart E of this part, then you must submit the required information to OSHA once a year. Employers in these two categories must submit the required information by the date listed in paragraph (c) of this section of the year after the calendar year covered by the form (for example, 2019 for the 2018 form). If you are not in either of these two categories, then you must submit the information to OSHA only if OSHA notifies you to do so for an individual data collection. (2) Do part-time, seasonal, or temporary workers count as employees in the criteria for number of employees in paragraph (a) of this section? Yes, each individual employed in the establishment at any time during the calendar year counts as one employee, including full-time, part-time, seasonal, and temporary workers. (3) How will OSHA notify me that I must submit information as part of an individual data collection under paragraph (a)(3) of this section? OSHA will notify you by mail if you will have to submit information as part of an individual data collection under paragraph (a)(3). OSHA will also announce individual data collections through publication in the Federal Register and the OSHA newsletter, and announcements on the OSHA website. If you are an employer who must routinely submit the information, then OSHA will not notify you about routine submittal. (4) When do I have to submit the information? If you are required to submit information under paragraph (a)(1) or (2) of this section, then you must submit the information once a year, by the date listed in paragraph (c) of this section of the year after the calendar year covered by the form (for example, 2019 for the 2018 form). If you are submitting information because OSHA notified you to submit information as part of an individual data collection under paragraph (a)(3) of this section, then you must submit the information as specified in the notification. (5) How do I submit the information? You must submit the information electronically. OSHA will provide a secure website for the electronic submission of information. For individual data collections under paragraph (a)(3) of this section, OSHA will include the website's location in the notification for the data collection. (6) Do I have to submit information if my establishment is partially exempt from keeping OSHA injury and illness records? If you are partially exempt from keeping injury and illness records under Sec. Sec. 1904.1 and/or 1904.2, then you do not have to routinely submit information under paragraphs (a)(1) and (2) of this section. You will have to submit information under paragraph (a)(3) of this section if OSHA informs you in writing that it will collect injury and illness information from you. If you receive such a notification, then you must keep the injury and illness records required by this part and submit information as directed. (7) Do I have to submit information if I am located in a State Plan State? Yes, the requirements apply to employers located in State Plan States. (8) May an enterprise or corporate office electronically submit information for its establishment(s)? Yes, if your enterprise or corporate office had ownership of or control over one or more establishments required to submit information under paragraph (a) of this [[Page 36507]] section, then the enterprise or corporate office may collect and electronically submit the information for the establishment(s). * * * * * [FR Doc. 2018-16059 Filed 7-27-18; 8:45 am] BILLING CODE 4510-26-P
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the election to segregate indicates that I am similarly concerned that the continue to be required to submit
subpart L is largely superfluous. Proposal’s removal of the requirement in information from their Form 300A
While it may be true that swap Regulation 23.703 that limits the investment summaries. OSHA is amending its
counterparties have not elected segregation of initial margin segregated pursuant to
in droves, CEA section 4s(l) and subpart L are
recordkeeping regulations to protect
subpart L to be invested consistent with
not intended to advance any particular Commission Regulation 1.25 is a knee-jerk
sensitive worker information from
outcome. Rather they concern the rights of response to a single Project KISS comment potential disclosure under the Freedom
counterparties to SDs and MSPs and aim to letter that ignores current practice and of Information Act (FOIA). OSHA has
increase the safety in the market for presupposes that the rollback will encourage preliminarily determined that the risk of
uncleared swaps by creating a self- more counterparties to elect to segregate disclosure of this information, the costs
effectuating requirement for the segregation pursuant to subpart L, which, as stated to OSHA of collecting and using the
of counterparty initial margin in an entity above, is not the goal of the statute or information, and the reporting burden
legally separate from the SD or MSP.11 As implementing regulation. While I am not
previously noted by the Commission in on employers are unjustified given the
opposed to permitting greater flexibility with uncertain benefits of collecting the
proposing subpart L, a goal of the regulation regard to the investment of initial margin, I
was to ‘‘increase the likelihood that any lack would have preferred that the Commission
information. OSHA believes that this
of use of segregated collateral accounts by seek additional information regarding proposal maintains safety and health
uncleared swaps counterparties is the result whether and how the current limitations in protections for workers while also
of genuine choices by counterparties and Regulation 23.703 have impacted reducing the burden to employers of
reduce the likelihood that it is the result of counterparties and their decision making complying with the current rule. OSHA
inertia, market power, or other market
under subpart L before proposing alternative seeks comment on this proposal,
imperfections.’’ 12 Indeed, based on some of
regulatory language. particularly on its impact on worker
the preamble discussion, it may be that we
I commend the Commission and its staff privacy, including the risks posed by
should consider the possibility that swap
for engaging through Project KISS in efforts exposing workers’ sensitive information
counterparties are not electing segregation
specifically because the current system of to identify and reduce unnecessary burdens
in the Commission regulations. I appreciate
to possible FOIA disclosure. In addition,
annual notification does not provide them OSHA is proposing to require covered
adequate notice of their ongoing right to staff’s consideration and inclusion of several
of my suggested edits to this Proposal. To be employers to submit their Employer
segregation. If that is the case, the
appropriate Commission response may be clear, I believe the Proposal provides for Identification Number (EIN)
more (or clearer) notification, rather than the many sound improvements to subpart L that electronically along with their injury
reduction in notification proposed today. respond to ongoing concerns and confusion and illness data submission.
I am concerned that the Commission’s created by the finalization of the CFTC and DATES: Comments must be submitted by
proposal could undermine the right to Prudential Regulator Margin Rules and CFTC
interpretive guidance.15 However, where the
September 28, 2018.
segregation as well as Congressional intent by
Proposal aims to strip out regulatory ADDRESSES: You may submit comments,
removing the periodic notification and
minimal disclosures currently required by provisions that the Commission previously identified by docket number OSHA–
subpart L. I believe there are prescriptive determined were essential to effectuating the 2013–0023, or regulatory information
elements of subpart L that can be removed language and purpose of CEA section 4s(l), I number (RIN) 1218–AD17, by any of the
with little impact to counterparties.13 believe the Commission may be engaging in following methods:
However, I am concerned by the Proposal’s shortsighted and unnecessary rollbacks to the Electronically: You may submit
reliance on representations by SDs and detriment of the swap counterparties subpart comments electronically at https://
unverified assumptions regarding L is intended to protect.
www.regulations.gov/, which is the
counterparty behavior to justify regulatory [FR Doc. 2018–16176 Filed 7–27–18; 8:45 am]
rollbacks in the absence of further federal e-rulemaking portal. Follow the
examination of whether and how the manner BILLING CODE 6351–01–P instructions on the website for making
in which the annual notice requirement is electronic submissions;
currently implemented has contributed to Fax: If your submission, including
claims of confusion and burden. I am also DEPARTMENT OF LABOR attachments, does not exceed 10 pages,
concerned that the Proposal may discourage you may fax it to the OSHA docket
commenters from suggesting alternative Occupational Safety and Health office at (202) 693–1648;
means of complying with the current Administration
language in Regulation 23.701(a) which may
Regular mail, express mail, hand
better preserve Congressional intent.14 delivery, or messenger/courier service
29 CFR Part 1904 (hard copy): You may submit your
11 Id. at 66621 and 66632. [Docket No. OSHA–2013–0023] materials to the OSHA Docket Office,
12 Protection of Collateral of Counterparties to Docket No. OSHA–2013–0023, Room N–
Uncleared Swaps; Treatment of Securities in a RIN 1218–AD17 3653, U.S. Department of Labor, 200
Portfolio Margining Account in a Commodity Constitution Avenue NW, Washington,
Broker Bankruptcy, 75 FR 75432, 75437 (proposed Tracking of Workplace Injuries and
Dec. 3, 2010).
DC 20210; telephone: (202) 693–2350
13 I also believe that the Commission can respond
Illnesses (TTY (887) 889–5627). OSHA’s Docket
to specific burdens identified by SDs and MSPs by, AGENCY: Occupational Safety and Health Office accepts deliveries (hand
for example, codifying staff interpretive guidance.
Administration (OSHA), Labor. deliveries, express mail, and messenger/
See, e.g. Letter from the Financial Services courier service) from 10 a.m. to 3 p.m.
Roundtable at 56 (Sept. 30, 2017) (urging the ACTION: Proposed rule.
Commission to codify its interpretation in CFTC ET, weekdays.
Staff Letter No. 14–132 with respect to SDs’ ability SUMMARY: This proposed rule would Instructions for submitting comments:
to rely on negative consent), https://
amend OSHA’s recordkeeping All submissions must include the
daltland on DSKBBV9HB2PROD with PROPOSALS
comments.cftc.gov/PublicComments/ docket number (Docket No. OSHA–
ViewComment.aspx?id=61427&SearchText=. regulation by rescinding the
14 For example, through the use of additional requirement for establishments with 250 2013–0023) or the RIN (RIN 1218–
clauses in customer onboarding or relationship or more employees to electronically AD17) for this rulemaking. Because of
documentation as a means to append the required submit information from OSHA Forms security-related procedures, submission
notification and disclosures to each new swap by regular mail may result in significant
confirmation thereby ensuring and simultaneously 300 and 301. These establishments will
documenting that the counterparty is notified of
delay. Please contact the OSHA docket
their right to require segregation at least at the 15 See CFTC Staff Letter No. 14–132, supra note office (telephone: (202) 693–2350;
beginning of each swap transaction. 9. email: technicaldatacenter@dol.gov) for
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![36496 Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Proposed Rules
and how it was affected; be more covered employers to submit their EIN On January 19, 2001, OSHA issued a
specific than ‘‘hurt,’’ ‘‘pain,’’ or ‘‘sore.’’ along with their injury and illness data final rule amending its requirements for
Examples: ‘‘strained back’’; ‘‘chemical submission. the recording and reporting of
burn, hand’’; ‘‘carpal tunnel syndrome.’’ This proposed rule is expected to be occupational injuries and illnesses (29
• What object or substance directly an E.O. 13771 deregulatory action, with CFR parts 1904 and 1902), along with
harmed the employee? Examples: annualized net cost savings estimated at the forms employers use to record those
‘‘concrete floor’’; ‘‘chlorine’’; ‘‘radial $8.2 million. Details on OSHA’s cost injuries and illnesses (66 FR 5916). The
arm saw . . . ’’ and cost savings estimates for this final rule also updated the list of
Form 300 requires employers to log proposed rule can be found in the industries that were partially exempt
much of this individual information— Preliminary Economic Analysis (PEA). from recording occupational injuries
notably, descriptions of injuries and the Under the current recordkeeping rule, and illnesses.
body parts affected—for each individual the initial deadline for electronic On September 18, 2014, OSHA again
worker and incident. Form 300A, by submission of information from OSHA amended the regulations to require
contrast, merely summarizes incident Forms 300 and 301 by covered employers to report work-related
data without any traceable connection establishments with 250 or more fatalities and severe injuries—in-patient
to individual workers. employees was July 1, 2018. However, hospitalizations, amputations, and
In the May 2016 final rule (81 FR OSHA will not enforce this deadline losses of an eye—to OSHA and to allow
29624), the recordkeeping regulation without further notice while this electronic reporting of these events (79
was revised to require establishments rulemaking is underway. FR 56130). The final rule also revised
with 250 or more employees to the list of industries that are partially
electronically submit information from B. Regulatory History
exempt from recording occupational
the OSHA Forms 300, 300A, and 301 to OSHA’s regulations on recording and injuries and illnesses.
OSHA annually. Establishments in reporting occupational injuries and On May 12, 2016, OSHA amended the
certain industries with 20–249 illnesses (29 CFR part 1904) were first regulations on recording and reporting
employees are required only to issued in 1971 (36 FR 12612, July 2, occupational injuries and illness to
electronically submit information from 1971). These regulations require the require employers to annually submit
only the OSHA Form 300A—the recording of work-related injuries and injury and illness information that
summary form. This proposed rule illnesses that involve death, loss of employers were already required to
would amend OSHA’s recordkeeping consciousness, days away from work, keep under part 1904 (81 FR 29624) to
regulation by rescinding the restriction of work, transfer to another OSHA electronically. Establishments
requirement for establishments with 250 job, medical treatment other than first with 250 or more employees in
or more employees to electronically aid, or diagnosis of a significant injury industries that are routinely required to
submit information from the OSHA or illness by a physician or other keep records are required to
Forms 300 and 301—the individual licensed health care professional (29 electronically submit information from
forms. CFR 1904.7). their OSHA Forms 300, 300A, and 301
As discussed below, OSHA proposes On July 29, 1977, OSHA amended to OSHA or OSHA’s designee once a
this amendment to the 2016 rule to these regulations to partially exempt year, and establishments with 20 to 249
protect worker privacy, having re- businesses having ten or fewer employees in certain designated
evaluated the utility of routinely employees during the previous calendar industries are required to electronically
collecting Form 300 and 301 data. The year from the requirement to record submit information from their OSHA
injury and illness data electronically occupational injuries and illnesses (42 annual summary (Form 300A) to OSHA
submitted to OSHA from Form 300A FR 38568). On December 28, 1982, or OSHA’s designee once a year. In
(which submission the 2016 rule OSHA amended these regulations to addition, that final rule requires
requires, and which this proposal would partially exempt establishments in employers, upon notification, to
not change) gives OSHA a great deal of certain lower-hazard industries from the electronically submit information from
information to use in identifying high- requirement to record occupational part 1904 recordkeeping forms to OSHA
hazard establishments for enforcement injuries and illnesses (47 FR 57699). or OSHA’s designee. These provisions
targeting. To that end, OSHA has OSHA also amended the recordkeeping became effective on January 1, 2017.
designed a targeted enforcement regulations in 1994 (Reporting of On November 24, 2017, OSHA
mechanism for industries experiencing Fatality or Multiple Hospitalization amended the recordkeeping regulation
higher rates of injuries and illnesses Incidents, 59 FR 15594) and 1997 to extend the initial submission
based on the summary data. By contrast, (Reporting Occupational Injury and deadline for 2016 Form 300A data
OSHA has provisionally determined Illness Data to OSHA, 62 FR 6434). described in 29 CFR 1904.41(c)(1) from
that electronic submission of Forms 300 Under the authority in Section 1904.41 July 1, 2017, to December 15, 2017 (82
and 301 adds uncertain enforcement added by the 1997 final rule, OSHA FR 55761).
benefits, while significantly increasing began requiring certain employers to
the risk to worker privacy, considering submit only their 300A data to OSHA II. Legal Authority
that those forms, if collected by OSHA, annually through the OSHA Data OSHA is issuing this proposed rule
could be found disclosable under FOIA. Initiative (ODI). The purpose of the ODI pursuant to authority expressly granted
In addition, to gain (uncertain) was to collect data on injuries and acute by sections 8 and 24 of the Occupational
enforcement value from the case- illnesses attributable to work-related Safety and Health Act (the ‘‘OSH Act’’
daltland on DSKBBV9HB2PROD with PROPOSALS
specific data, OSHA would need to activities in the private sector from or ‘‘Act’’) (29 U.S.C. 657, 673). Section
divert resources from other priorities, approximately 80,000 establishments in 8(c)(1) of the Act requires each
such as the utilization of Form 300A selected high-hazard industries. The employer to ‘‘make, keep and preserve,
data, which OSHA’s experience has Agency used these data to calculate and make available to the Secretary [of
shown to be useful. establishment-specific injury and illness Labor] or the Secretary of Health and
OSHA seeks comment on this rates and, in combination with other Human Services, such records regarding
proposal. In addition, OSHA asks for data sources, to target enforcement and his activities relating to this Act as the
public comment on whether to require compliance assistance activities. Secretary . . . may prescribe by
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![Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Proposed Rules 36497
regulation as necessary or appropriate further the general enforcement and from the OSHA Form 300 (Log of Work-
for the enforcement of this Act or for detection purposes of the OSH Act (see Related Injuries and Illnesses) and
developing information regarding the Workplace Health & Safety Council v. OSHA Form 301 (Injury and Illness
causes and prevention of occupational Reich, 56 F.3d 1465, 1468 (D.C. Cir. Incident Report) to OSHA or OSHA’s
accidents and illnesses’’ (29 U.S.C. 1995) (citing Louisiana Chemical Ass’n designee once a year. Under the
657(c)(1)). Section 8(c)(2) directs the v. Bingham, 657 F.2d 777, 781–82 (5th proposed rule, § 1904.41(a)(1) would
Secretary to prescribe regulations Cir. 1981)); United Steelworkers of only require these establishments to
‘‘requiring employers to maintain America v. Auchter, 763 F.2d 728, 735 electronically submit information from
accurate records of, and to make (3d Cir. 1985)). Recordkeeping the OSHA Form 300A (Summary of
periodic reports on, work-related requirements promulgated under the Work-Related Injuries and Illnesses). As
deaths, injuries and illnesses other than Act are characterized as regulations (see explained below, OSHA believes that
minor injuries requiring only first aid 29 U.S.C. 657 (using the term this change would better protect worker
treatment and which do not involve ‘‘regulations’’ to describe recordkeeping privacy from the risk of FOIA
medical treatment, loss of requirements)). An agency may revise a disclosure, while retaining the lion’s
consciousness, restriction of work or prior rule if it provides a reasoned share of the enforcement benefits
motion, or transfer to another job’’ (29 explanation for the change. See Motor realized by the 2016 rule.
U.S.C. 657(c)(2)). Finally, section 8(g)(2) Vehicle Mfrs. Ass’n v. State Farm Mut. a. Collecting Forms 300 and 301’s
of the OSH Act broadly empowers the Auto. Ins. Co., 463 U.S. 29, 42 (1983). Individual Injury and Illness Data Risks
Secretary to ‘‘prescribe such rules and
III. Summary and Explanation of the Worker Privacy
regulations as he may deem necessary to
carry out [his] responsibilities under Proposed Rule Electronic submission of Forms 300
this Act’’ (29 U.S.C. 657(g)(2)). OSHA proposes to protect worker and 301 puts the federal government in
Section 24 of the OSH Act (29 U.S.C. privacy by ending the electronic the position of collecting information
673) contains a similar grant of collection of case-specific forms (which that workers may deem quite sensitive,
authority. This section requires the OSHA has preliminarily determined including descriptions of their injuries
Secretary to ‘‘develop and maintain an adds uncertain enforcement value, but and the body parts affected. OSHA has
effective program of collection, poses a potential privacy risk under preliminarily determined that its
compilation, and analysis of FOIA) while continuing the collection collection of these individual forms’
occupational safety and health of summary forms (which adds information poses a non-trivial risk of
statistics’’ and ‘‘compile accurate significant enforcement value, with compelled disclosure—endangering
statistics on work injuries and illnesses little privacy risk). OSHA has worker privacy—under FOIA.
which shall include all disabling, reevaluated the utility of the Form 300 As records in federal possession,
serious, or significant injuries and and 301 data for OSHA enforcement Forms 300, 300A, and 301 could be
illnesses’’ (29 U.S.C. 673(a)). Section 24 efforts and preliminarily determined subject to disclosure under FOIA if a
also requires employers to ‘‘file such that its (uncertain) enforcement value court determines that no exemptions to
reports with the Secretary as he shall FOIA apply. Although the Department
does not justify the reporting burden on
prescribe by regulation’’ (29 U.S.C. believes that the information in these
employers, the burden on OSHA to
673(e)). These reports are to be based on forms should be held exempt under
collect, process, analyze, distribute, and
‘‘the records made and kept pursuant to FOIA, there remains a meaningful risk
programmatically apply the data, and—
section 8(c) of this Act’’ (29 U.S.C. that a court may ultimately disagree and
especially—the risks posed to worker
673(e)). require disclosure. That risk remains so
privacy. Specifically, OSHA is
Further support for the Secretary’s long as there is a non-trivial chance that
proposing to amend its recordkeeping
authority to require employers to keep any court in any of the nation’s 94
regulations by removing the part 1904
and submit records of work-related federal judicial districts might issue a
requirement that became effective on
illnesses and injuries can be found in final disclosure order after the
January 1, 2017, for the annual exhaustion of all available appeals. In
the Congressional Findings and Purpose electronic submission of injury and
at the beginning of the OSH Act (29 the Department’s view, that risk is not
illness information contained in OSHA a reason to stop collecting Form 300A
U.S.C. 651). In this section, Congress
Forms 300 and 301. This amendment summaries, because their collection
declares the overarching purpose of the
would avoid the risks posed by making offers significant enforcement value
Act is ‘‘to assure so far as possible every
those forms into government records with little privacy risk. However, OSHA
working man and woman in the Nation
that could be found disclosable under has re-evaluated the utility of routinely
safe and healthful working conditions’’
FOIA. collecting the Form 300 and 301 data for
(29 U.S.C. 651(b)). One of the ways in
OSHA is only seeking comment on enforcement purposes, given that it has
which the Act is meant to achieve this
the proposed changes to § 1904.41, and already designed a targeted enforcement
goal is ‘‘by providing for appropriate
not on any other aspects of part 1904. mechanism using the summary data,
reporting procedures . . . [that] will
help achieve the objectives of this Act A. Description of Proposed Revisions to and given the resources that would be
and accurately describe the nature of the Section 1904.41 required to collect, process, analyze,
occupational safety and health distribute, and programmatically apply
1. Section 1904.41(a)(1)—Annual the case-specific data in a meaningful
problem’’ (29 U.S.C. 651(b)(12)).
Electronic Submission of Part 1904 way. Therefore, OSHA believes that the
Importantly, the statute does not require
daltland on DSKBBV9HB2PROD with PROPOSALS
Records by Establishments With 250 or risk of disclosure under FOIA is a
this information to be reported to
More Employees persuasive reason not to collect
OSHA.
The OSH Act authorizes the Secretary OSHA proposes to amend individual case information from Forms
of Labor to issue two types of § 1904.41(a)(1) to remove the 300 and 301, as that collection offers
occupational safety and health rules: requirement for establishments with 250 only uncertain enforcement value while
Standards and regulations. Standards or more employees that are required to putting workers’ privacy at risk.
aim to correct particular identified routinely keep injury and illness records Nor is that risk speculative. In 2017,
workplace hazards, while regulations to electronically submit information an organization invoked FOIA to request
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![36498 Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Proposed Rules
that the Department produce non-release of PII. Simson L. Garfinkel OSHA to evaluate different types of
electronically-submitted information states ‘‘de-identification approaches programs, initiatives, and interventions
from Forms 300, 300A, and 301. The based on suppressing or generalizing in different industries and geographic
Department explained to the requester specific fields in a database cannot areas, enabling the agency to become
that it had not begun collecting Forms provide absolute privacy guarantees, more effective and efficient.
300 and 301, and that Form 300A is because there is always a chance that OSHA reaffirms those benefits—as to
exempt from disclosure under FOIA. the remaining data can be re-identified the collection of information from the
The requester then sued the Department using an auxiliary dataset.’’ (see ‘‘De- summary Form 300A. Collection of the
to compel disclosure of electronic Identification of Personal Information,’’ summary data gives OSHA the
information from Form 300A (and p. 5, Simson L. Garfinkel, NISTIR 8053, information it needs to identify and
presumably would have demanded October 2015, Ex. 2060). Similarly, target establishments with high rates of
production of information from Forms Mehmet Kayaalp observed, ‘‘The de- work-related injuries and illnesses.
300 and 301, had the Department started identification process minimizes the OSHA has collected summary 300A
collecting them). Although the risk of re-identification but has no claim data for 2016 from 214,574
Department strongly believes that Form to make it impossible.’’ (see ‘‘Modes of establishments. With those data, OSHA
300A is exempt from disclosure under De-identification,’’ p. 2, Mehmet has already designed a targeted
FOIA, the plaintiff’s complaint is non- Kayaalp, MD, Ph.D., U.S. National enforcement mechanism for industries
frivolous (cf. Fed. R. Civ. P. 11). It is Library of Medicine, National Institutes experiencing higher rates of injuries and
accordingly possible that the of Health, 2017, Ex. 2062). In addition, illnesses. OSHA plans to further refine
adjudicating court could order de-identification is not the same as this approach by using the greater
disclosure of information in Form 300A. anonymization. That is, even after all PII volume of 2017 summary data OSHA
After the exhaustion of any appeals, that has been removed, there is the chance expects to collect, as explained in the
order would establish a precedent that that somebody could re-identify some of margin.3
other courts may find persuasive in the data by linking the fully de- OSHA’s use of summary data has a
potential future litigation over identified data back to the specific lengthy track record in enforcement, as
information in Forms 300 and 301. person. well. Before the 2016 rule, OSHA had
That risk of potential compelled Unless the U.S. Supreme Court (or collected these data for 17 years under
disclosure is illustrated by a case in sufficient circuit-court precedent, at its OSHA Data Initiative (ODI) and used
which the Department was ordered to least) were to definitively affirm that the them to identify and target high-rate
disclose OSHA records collecting its information in Forms 300 and 301 is establishments through the Site-Specific
individual inspectors’ exposures to exempt from FOIA disclosure, there Targeting (SST) Program. OSHA
beryllium. Finkel v. U.S. Dep’t of Labor, remains a real risk that the private, stopped the ODI in 2013 and the SST in
No. 05–5525, 2007 WL 1963163 (D.N.J. sensitive information from those forms 2014, but those prior programs have still
June 29, 2007). In that case, the could be disclosed regardless of the given it considerable experience with
Department produced de-identified test Department’s attempts to keep it using 300A data for targeting.
results, but the court ultimately private.2 In the Department’s view, that Conversely, OSHA has no prior
determined that more identifying risk to worker privacy is unacceptable. experience with using the case-specific
information needed to be disclosed, Form 300 and 301 data to identify and
despite FOIA’s exemption for b. Collecting Forms 300 and 301 Has
Uncertain Enforcement Benefits target establishments. OSHA is unsure
‘‘information . . . in personnel, medical
as to how much benefit such data would
or similar files . . . [whose] release As its preamble explains, two of the have for targeting, or how much effort
would constitute a clearly unwarranted benefits of the May 2016 final rule are would be required to realize those
invasion of personal privacy.’’ Arieff v. more effective identification and benefits. OSHA estimates 4 that
U.S. Dep’t of Navy, 712 F.2d 1462, 1466 targeting of workplace hazards by OSHA establishments with 250 employees or
(D.C. Cir. 1983), quoted in Finkel, 2007 and better evaluations of OSHA more would report data from
WL 1963163, at *8. While the interventions. See 81 FR 29685. approximately 775,210 Form 301s
Department believes that Finkel would According to the preamble, annually, a total volume three times the
be distinguishable from any future cases establishment-specific injury and illness number of Form 300As whose data was
seeking FOIA disclosure of information data would allow for analyses that were
from individual Forms 300 and 301, it uploaded for 2016, while also
not possible with the data available presenting finer-grained information
is reasonably foreseeable that a court before the 2016 rule took effect. The
could find it persuasive nonetheless. than that captured by Form 300A. To
establishment-specific data, the gain (speculative, uncertain)
And as the Finkel case suggests, it preamble concluded, would allow
may not be possible to fully redact all enforcement value from the case-
identifying information in a way that 2 The gathering of such data also may incentivize
specific data, OSHA would need to
would eliminate privacy risk. Releasing cyber-attacks on the Department’s IT system. For
divert resources from other priorities,
case-specific data to a member of the example, on August 14, 2017, OSHA received an
3 OSHA expects many more establishments to
public could result in the inadvertent alert from the United States Computer Emergency
Readiness Team (US–CERT) in the Department of respond with 2017 summary data this year, for at
release of personally identifiable Homeland Security that indicated a potential least two reasons. First, OSHA has analyzed the
information (PII) or re-identification of compromise of user information for OSHA’s Injury responses for 2016, has identified thousands of non-
the data with a particular individual. Tracking Application (ITA). The ITA was taken off- responders who were obligated to respond for 2016,
daltland on DSKBBV9HB2PROD with PROPOSALS
line as a precaution. A complete scan was and is in the process of informing them of their
Although automated systems exist to obligation to respond for 2017. Second, OSHA
conducted by the National Information Technology
scrub PII from the data (see ‘‘Text De- Center (NITC). The NITC confirmed that there was recently discovered that employers did not receive
Identification For Privacy Protection: A no breach of the data in the ITA and that no clear notice of their obligation to respond for 2016,
Study of its Impact on Clinical Text information in the ITA was compromised. Public if they were located in state plan states that had not
Information Content,’’ Stéphane M. access to the ITA was restored on August 25, 2017. completed adoption of their own state rules. In
While this episode showed the security provisions 2018, OSHA issued a correction clarifying that
Meystre et al., Journal of Biomedical of the ITA to work as designed, it also demonstrated those employers were indeed obligated to submit
Informatics 50 (2014) 142–150, Ex. that such a large data collection will inevitably Form 300A data for 2017.
2061), it is not possible to guarantee the encounter malware. 4 See ‘‘PEA calculations,’’ Ex. 2067.
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![36502 Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Proposed Rules
differences between BLS and OSHA using this discount rate, the cost savings include numbers of farms and ranches
submission requirements. would be slightly higher: $64,070. with 20 or more employees, so in the
The proposed rule would remove the May 2016 final rule, OSHA used data
requirement for establishments with 250 C. New Costs (From the EIN Collection)
from the 2012 Census of Agriculture.
or more employees to report information Establishments would be newly Updated data from the 2017 Census of
from OSHA Forms 300 and 301. To required to submit the employer’s EIN Agriculture are not available at this
estimate the number of injuries and along with the employer’s electronic time, so OSHA will continue to use a
illnesses that would be reported by data submission. Some employees given count of 20,623 farms with 20 or more
covered establishments with 250 or this task would already know their employees. CBP data show that there are
more employees under the current rule, employer’s EIN from their other duties, 36,903 establishments with 250 or more
OSHA assumed that the total number of but others would need to spend some employees in industries required to
recordable cases in establishments with time finding out this information. OSHA routinely keep records and 405,666
250 or more employees is proportional estimates an average of 5 minutes for an establishments with 20–249 employees
to the establishments’ share of employee to find out his or her in the designated high-hazard
employment within each industry.12 employer’s EIN and to enter it on the industries. Combining these figures with
OSHA then used the most recent SOII submission form. Hence the unit cost for 20,623 farms and ranches results in a
data to estimate that, without the a submission would be the wage of the total of 463,192 establishments that
proposed rule, covered establishments employee who submitted the would be required to submit an EIN
with 250 or more employees would information multiplied by his or her under the proposed rule. With a cost per
report 775,210 injury and illness cases time plus overhead, or $4.68 [(5/60) × establishment of $4.68, the total first
per year.13 The cost per case is $56.10]. year cost of providing EINs would be
estimated at $11.22 (12/60 × $56.10), The electronic reporting system is $2,165,751 (463,192 × $4.68).18 When
and the total cost is $8,699,173 ($11.22 designed to retain information about this cost is annualized over ten years,
per case × 775,210 cases).14 Therefore, each establishment based on the login the annualized cost at a 3 percent
the proposal to remove the requirement information, including the EIN. discount rate is $253,892 and at a 7
to submit the information from OSHA Therefore, employers would only have percent discount rate the cost is
Form 300 and 301 to OSHA to provide OSHA their EIN once, so this $308,354.
electronically would result in a total would not be a recurring cost. However, There are 463,192 establishments
cost savings to the private sector of it would be an additional one-time cost (including establishments with more
$8,699,173.15 for employers who are newly reporting than 250 employees, those with 20–249
The 2016 FEA also included data because, for example, the employees in certain NAICS codes, and
government costs for the rule because establishment is new or the employer farms with more than 20 employees)
creating a reporting and data collection newly reached the reporting threshold that would be subject to reporting their
system was a significant fraction of the for employment size. OSHA has EIN in the first year under this proposal.
total costs of the regulation. Not estimated that each year there will be With 10.15 percent new establishments
collecting the case-specific data from about 10.15 percent more each year, there will be an additional
OSHA Form 300 and 301 would establishments that will be required to 47,012 establishments each year. The
generate a small additional cost savings report their EIN. This 10.15 percent cost for those establishments will be
for the government because that portion figure is derived from the U.S. Census $4.68 × 47,012 or $219,858. This cost
of the reporting and data collection Bureau Statistics of U.S. Businesses does not occur in the first year. OSHA
system has not yet been created and (SUSB), specifically the employment annualized 9 years of new establishment
would not have to be created under the change data set 16 which show the costs over ten years, which results in
proposed rule. OSHA estimates a lump increase in U.S. business establishments annualized costs of $213,262 at a
sum savings from not creating the from 2014 to 2015. In 2015 there were discount rate of 3 percent and $204,468
software to collect the 300 and 301 data 689,819 new establishments, out of a at a 7 percent discount rate.
to be $450,000. Annualized at 3 percent total 6,795,201 establishments. Dividing The EIN data field is already included
over 10 years, this would represent a the first figure by the second gives a in the reporting system design, so there
savings to the government of $52,754 change of about 10.15 percent. would be no additional government
per year. OSHA also annualized the cost To calculate the total estimated costs costs associated with submittal of the
savings at 7 percent over 10 years, and for covered establishments to provide EIN.
their EINs, OSHA used establishment
12 OSHA welcomes comments on this and employment data from the U.S. D. Net Cost Savings
assumption. Census County Business Patterns The cost savings of the proposed rule,
13 The 2016 FEA estimated 713,397 injury and
(CBP).17 The three categories of the new costs associated with collecting
illness cases per year using the same methodology
and the most recent SOII data then available (see
included establishments are (1) all the EIN, and the net total cost savings
‘‘PEA calculations,’’ Ex. 2067). establishments with 250 or more are shown in Table 1. Combining the
14 In addition, note that the totals in tables in this employees in industries that are cost savings to the private sector and to
chapter, as well as totals summarized in the text, required to routinely keep OSHA injury the government, the estimated total
may not precisely sum from underlying elements and illness records, (2) establishments
due to rounding. The precise calculation of the
annual cost savings from the proposed
numbers in the PEA appears in the spreadsheet (see with 20–249 employees in certain high- rule would be $8,751,927 at a 3 percent
‘‘PEA calculations,’’ Ex. 2067). hazard industries, as defined in the discount rate and $8,763,243 at 7
daltland on DSKBBV9HB2PROD with PROPOSALS
15 Overall, the estimated cost savings of this Appendix to the May 2016 final rule, percent discount rate. The additional
proposal to remove the provision for electronic and (3) farms and ranches with 20 or
reporting of case data is 25 percent greater than the
costs to the private sector from
2016 estimated cost of promulgating the provision
more employees. CBP data do not
18 In addition, note that the totals in tables in this
($6,948,487). There are three reasons for this 25
16 Source:https://www2.census.gov/ chapter, as well as totals summarized in the text,
percent increase: The number of establishments
with more than 250 employees has grown, the mean programssurveys/susb/datasets/2015/us_state_ may not precisely sum from underlying elements
hourly wage has increased, and OSHA is now emplchange_2014-2015.txt. due to rounding. The precise calculation of the
including a 17 percent overhead estimate in the cost 17 For the CBP see: https://www.census.gov/ numbers in the PEA appears in the spreadsheet (see
estimates. programs-surveys/cbp.html. ‘‘PEA calculations,’’ Ex. 2067).
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![36506 Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Proposed Rules
www.regulations.gov, the federal e- § 1904.41 Electronic submission of (3) How will OSHA notify me that I
rulemaking portal. Therefore, OSHA Employer Identification Number (EIN) and must submit information as part of an
cautions individuals about submitting injury and illness records to OSHA. individual data collection under
personal information such as Social (a) * * * paragraph (a)(3) of this section? OSHA
Security numbers and birthdates. (1) Annual electronic submission of will notify you by mail if you will have
Although submissions are listed in the OSHA Form 300A Summary of Work- to submit information as part of an
https://www.regulations.gov index, Related Injuries and Illnesses by individual data collection under
some information (e.g., copyrighted establishments with 250 or more paragraph (a)(3). OSHA will also
material) is not publicly available to employees. If your establishment had announce individual data collections
read or download through that website. 250 or more employees at any time through publication in the Federal
All comments and exhibits, including during the previous calendar year, and Register and the OSHA newsletter, and
copyrighted material, are available for this part requires your establishment to announcements on the OSHA website. If
inspection at the OSHA docket office. keep records, then you must you are an employer who must
Information on using https:// electronically submit information from routinely submit the information, then
www.regulations.gov to submit OSHA Form 300A Summary of Work- OSHA will not notify you about routine
comments and access dockets is Related Injuries and Illnesses to OSHA submittal.
available on that website. Contact the or OSHA’s designee. You must submit (4) When do I have to submit the
OSHA docket office for information the information once a year, no later information? If you are required to
about materials not available through than the date listed in paragraph (c) of submit information under paragraph
the website and for assistance in using this section of the year after the calendar (a)(1) or (2) of this section, then you
the internet to locate docket year covered by the form (for example, must submit the information once a
submissions. 2019 for the 2018 form). year, by the date listed in paragraph (c)
* * * * * of this section of the year after the
Electronic copies of this Federal calendar year covered by the form (for
Register document are available at (4) Electronic submission of the
Employer Identification Number (EIN). example, 2019 for the 2018 form). If you
https://www.regulations.gov. This are submitting information because
document, as well as news releases and For each establishment that is subject to
these reporting requirements, you must OSHA notified you to submit
other relevant information, also are information as part of an individual data
available at OSHA’s web page at http:// provide the EIN used by the
establishment. collection under paragraph (a)(3) of this
www.osha.gov. For specific information section, then you must submit the
about OSHA’s Recordkeeping rule, go to * * * * * information as specified in the
the Recordkeeping page on OSHA’s web (b) Implementation—(1) Does every notification.
page. employer have to routinely submit this (5) How do I submit the information?
information to OSHA? No, only two You must submit the information
List of Subjects in 29 CFR Part 1904 categories of employers must routinely electronically. OSHA will provide a
Health statistics, Occupational safety submit this information. First, if your secure website for the electronic
and health, Reporting and establishment had 250 or more submission of information. For
recordkeeping requirements, State employees at any time during the individual data collections under
plans. previous calendar year, and this part paragraph (a)(3) of this section, OSHA
requires your establishment to keep will include the website’s location in
Signed at Washington, DC, on July 23, records, then you must submit the
2018.
the notification for the data collection.
required information to OSHA once a (6) Do I have to submit information if
Loren E. Sweatt, year. Second, if your establishment had my establishment is partially exempt
Deputy Assistant Secretary of Labor for 20 or more employees but fewer than from keeping OSHA injury and illness
Occupational Safety and Health. 250 employees at any time during the records? If you are partially exempt
Amendments to Regulations previous calendar year, and your from keeping injury and illness records
establishment is classified in an under §§ 1904.1 and/or 1904.2, then you
For the reasons stated in the industry listed in appendix A to subpart do not have to routinely submit
preamble, OSHA proposes to amend E of this part, then you must submit the information under paragraphs (a)(1) and
part 1904 of chapter XVII of title 29 as required information to OSHA once a (2) of this section. You will have to
follows: year. Employers in these two categories submit information under paragraph
must submit the required information (a)(3) of this section if OSHA informs
PART 1904—[AMENDED] by the date listed in paragraph (c) of this you in writing that it will collect injury
section of the year after the calendar and illness information from you. If you
Subpart E—Reporting Fatality, Injury year covered by the form (for example, receive such a notification, then you
and Illness Information to the 2019 for the 2018 form). If you are not must keep the injury and illness records
Government in either of these two categories, then required by this part and submit
you must submit the information to information as directed.
■ 1. The authority citation for subpart E OSHA only if OSHA notifies you to do (7) Do I have to submit information if
of 29 CFR part 1904 continues to read so for an individual data collection. I am located in a State Plan State? Yes,
as follows: (2) Do part-time, seasonal, or the requirements apply to employers
daltland on DSKBBV9HB2PROD with PROPOSALS
Authority: 29 U.S.C. 657, 673, 5 U.S.C. temporary workers count as employees located in State Plan States.
553, and Secretary of Labor’s Order 1–2012 in the criteria for number of employees (8) May an enterprise or corporate
(77 FR 3912, Jan. 25, 2012). in paragraph (a) of this section? Yes, office electronically submit information
each individual employed in the for its establishment(s)? Yes, if your
■ 2. In § 1904.41, revise the section establishment at any time during the enterprise or corporate office had
heading and paragraph (a)(1), add calendar year counts as one employee, ownership of or control over one or
paragraph (a)(4), and revise paragraph including full-time, part-time, seasonal, more establishments required to submit
(b) to read as follows: and temporary workers. information under paragraph (a) of this
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![Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Proposed Rules 36507
section, then the enterprise or corporate this document ‘‘Information Collection to evaluate potential operators for their
office may collect and electronically Request; Cranes and Derricks in ability to safely operate equipment
submit the information for the Construction: Operator Qualification,’’ covered by subpart CC; and require
establishment(s). and the OSHA docket number for this documentation of that evaluation.
* * * * * document (OSHA–2018–0009). All The proposed rule provided the
[FR Doc. 2018–16059 Filed 7–27–18; 8:45 am] comments, including any personal public 30 days to comment on the
BILLING CODE 4510–26–P information you provide, are placed in proposed regulations including the
the public docket without change, and information collection requirements
may be made available online at http:// contained in the proposed rule. Under
DEPARTMENT OF LABOR www.regulations.gov. For further the Paperwork Reduction Act (the PRA),
information on submitting comments, Federal agencies are required to publish
Occupational Safety and Health see the ‘‘Public Participation’’ heading a notice in the Federal Register
Administration in the section of this document titled concerning each proposed information
SUPPLEMENTARY INFORMATION. Because of collection requirement and to allow 60
29 CFR Part 1926 security procedures, the use of regular days for public comment on those
[Docket ID–OSHA–2018–0009] mail may cause a significant delay in requirements (44 U.S.C. 3506(c)(2)(A);
the receipt of comments. For see also 5 CFR 1320.8(d)(1)).
RIN 1218–AC96 Accordingly this document allows the
information about security procedures
concerning the delivery of materials by public an additional 30 days, as
Information Collection Request; required by the PRA, to comment on the
Cranes and Derricks in Construction: hand, express delivery, messenger, or
courier service, please contact the information collection requirements
Operator Qualification contained in the proposed rule.
OSHA Docket Office at (202) 693–2350;
AGENCY: Occupational Safety and Health TTY (877) 889–5627. Concurrent with publication of the
Administration (OSHA), Labor. Docket: To read or download proposed rule, OSHA submitted the
ACTION: Proposed rule, limited comments or other material in the new Cranes and Derricks in
reopening of comment period. docket, go to http://www.regulations.gov Construction Standard (29 CFR part
or the OSHA Docket Office at the above 1926, subpart CC): Operator
SUMMARY: OSHA is providing the public address. All documents in the docket Qualification Information Collection
an additional 30 days to comment on (including this Federal Register Request (ICR) to the Office of
only the information collection document) are listed in the http:// Management and Budget (OMB) for
requirements contained in the proposed www.regulations.gov index; however, review with a request for a new control
updates to its standard for cranes and some information (e.g., copyrighted number (ICR Reference Number
derricks in construction published on material) is not publicly available to 201710–1218–002). If a final rule is
May 21, 2018. read or download through the website. published, OSHA will submit the final
DATES: The comment period for only the All submissions, including copyrighted ICR for the final Cranes and Derricks in
information collection requirements material, are available for inspection at Construction Standard: Operator
published on May 21, 2018 at 83 FR the OSHA Docket Office. Qualification to OMB for approval. If
23534, is reopened. Comments must be the final ICR is approved, OSHA will
FOR FURTHER INFORMATION CONTACT: Mr.
submitted (postmarked, sent, or request to amend the comprehensive
Vernon Preston, Directorate of Cranes and Derricks in Construction
received) by August 29, 2018.
Construction; telephone: (202) 693– Information Collection (OMB control
ADDRESSES: 2020; fax: (202) 693–1689; email:
Electronically: You may submit number 1218–0261) to incorporate the
preston.vernon@dol.gov. ICR analysis associated with the final
comments and attachments
SUPPLEMENTARY INFORMATION: Cranes and Derricks in Construction
electronically at http://
www.regulations.gov, which is the A. Background Standard: Operator Qualification and to
Federal eRulemaking Portal. Follow the discontinue the new control number.
OSHA published a notice of proposed The purpose of the PRA, 44 U.S.C.
instructions online for submitting
rulemaking ‘‘Cranes and Derricks in 3501 et seq., includes enhancing the
comments.
Facsimile: If your comments, Construction: Operator Qualification’’ quality and utility of information the
including attachments, are not longer (the NPRM or the proposed rule) on Federal government requires and
than 10 pages you may fax them to the May 21, 2018, in the Federal Register minimizing the paperwork and
OSHA Docket Office at (202) 693–1648. (83 FR 23534) proposing regulations to reporting burden on affected entities.
Regular mail, express delivery, hand update the standard for cranes and The PRA requires certain actions before
delivery, and messenger (courier) derricks in construction. In the NPRM, an agency can adopt or revise a
service: When using this method, you OSHA proposes to amend 29 CFR 1926, collection of information requirement
must submit a copy of your comments subpart CC to revise sections that (also referred to as a ‘‘paperwork’’ or
and attachments to the OSHA Docket address crane operator training, ‘‘information collection’’ requirement),
Office, Docket No. OSHA–2018–0009, certification/licensing,1 and including publishing a summary of the
Occupational Safety and Health competency. The purpose of these information collection requirements and
Administration, U.S. Department of amendments are to: Require a brief description of the need for, and
Labor, Room N–3653, 200 Constitution comprehensive training of operators; proposed use of, the information. The
daltland on DSKBBV9HB2PROD with PROPOSALS
Avenue NW, Washington, DC 20210. remove certification by capacity from PRA defines ‘‘collection of information’’
Deliveries (hand, express mail, certification requirements; clarify and as ‘‘the obtaining, causing to be
messenger, and courier service) are permanently extend the employer duty obtained, soliciting, or requiring the
accepted during the OSHA Docket disclosure to third parties or the public,
1 The term ‘‘certification/licensing’’ covers each
Office’s normal business hours, 10:00 of facts or opinions by or for an agency,
of the certification options in the proposed rule
a.m. to 3:00 p.m., ET. (third-party certification or an audited employer
regardless of form or format.’’ (44 U.S.C.
Instructions: All submissions must certification program) as well as state or local 3502(3)(A)). Under the PRA, a Federal
include the agency name, the title of operator licensing requirements. agency may not conduct or sponsor a
VerDate Sep<11>2014 17:47 Jul 27, 2018 Jkt 244001 PO 00000 Frm 00032 Fmt 4702 Sfmt 4702 E:\FR\FM\30JYP1.SGM 30JYP1](https://thefederalregister.org/doc/83_FR_36640/page/14.svg)
Document Created: 2018-07-28 01:43:43
Document Modified: 2018-07-28 01:43:43
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Proposed rule. | |
| Dates | Comments must be submitted by September 28, 2018. | |
| Contact | For press inquiries: Frank Meilinger, OSHA Office of Communications, telephone: (202) 693-1999; email: [email protected] | |
| FR Citation | 83 FR 36494 | |
| RIN Number | 1218-AD17 | |
| CFR Associated | Health Statistics; Occupational Safety and Health; Reporting and Recordkeeping Requirements and State Plans |
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