Comments to OSHA on the Proposed Rule to Delay Compliance Date for Reporting Requirement

July 13, 2017

OSHA Docket Office
Docket No. OSHA 2013-0023
Room N-3653
U.S. Department of Labor
200 Constitution Ave., N.W.
Washington, DC 20210

VIA ELECTRONIC SUBMISSION: http://www.regulations.gov

Re: OSHA Docket No. OSHA-2013-0023; Proposed Rule to Delay Compliance
Date for Reporting Requirement under Final Improve Tracking of
Workplace Injuries and Illnesses Regulation (82 Fed. Reg. 29261, June 28,
2017)

To the Docket:

The U.S. Chamber of Commerce (the “Chamber”) is the world’s largest business
organization representing the interests of more than three million businesses of all sizes and in
every market sector and region throughout the United States. Our members range from small
businesses to large multinational corporations, and local chambers to leading industry
associations.

As many of our members would be impacted by OSHA’s regulation, “Improve Tracking
of Workplace Injuries and Illnesses” (“final regulation,” “underlying regulation”, “reporting
regulation”) the Chamber vigorously opposed the rulemaking that produced this regulation, and
since it was issued as a final regulation on May 12, 2016 has sought ways to block, revise or
rescind it. We submitted comprehensive comments to both proposals (attached), appeared at the
public meeting held in January 2014, and joined a legal challenge to the regulation.

Accordingly, the Chamber welcomes OSHA’s proposal to delay the compliance date for
employers required to submit1 their Form 300As (annual summaries) from July 1, 2017 to
December 1, 2017. However, the Chamber believes OSHA and employers would be better
served by the agency staying the reporting requirement indefinitely pending the outcome of the
comprehensive rulemaking OSHA has committed to undertaking to fully review this regulation
(82 Fed. Reg. 29261).
1 The regulation requires establishments with more than 250 or more employees (at any time of the year), and
establishments with 20-249 employees (at any time of the year) who are listed in industry codes associated with high
rates of injuries to electronically submit to OSHA their annual summaries (Form 300A) by July 1, 2017.

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Merely delaying the submission of these reports suggests OSHA will activate the
requirement on December 1. Employers will begin preparing to submit their forms months
ahead of that date. If OSHA then concludes, through the comprehensive rulemaking, to rescind
this requirement, then employers will have spent their resources for no purpose.

Furthermore, since the only benefits OSHA claims will flow from this regulation are
entirely speculative and non-quantifiable, there is no harm to staying the requirement indefinitely
pending the outcome of the upcoming rulemaking. 2 Indeed, this administration adopts the
previous administration’s conclusions with respect to the unquantifiable and uncertain nature of
the benefits associated with the reporting requirement to make the point that the proposed delay
would not “have any effect on these benefits” (82 Fed. Reg. 29262).

Beyond the inconvenience is the more important point that OSHA has stated clearly that
any submitted reports, even the annual summaries that are the subject of this proposed delay, will
be posted online, and subject to Freedom of Information Act (FOIA) requests (81 Fed. Reg.
29650, 29658). While the Form 300As do not include personal information, they do include
confidential business information (CBI) in the form of average number of employees and hours
worked. Employers regard this data as very sensitive since competitors can use it to calculate
production and efficiency rates. Indeed, since the reports to be filed will be by establishment,
competitors will be able to glean establishment-specific details.

Ironically, OSHA previously regarded this information as deserving of protection. As we
stated in our comments to the proposed regulation in March 2014:

OSHA and the Chamber’s position are, or at least were, the same: Total hours worked at
individual establishments is confidential and proprietary information. See New York
Times Co., 340 F. Supp. 2d at 402. Indeed, in the New York Times Co. case, OSHA
asserted that this number was not only confidential information, but had the capacity to
“cause substantial competitive injury.” Id. (citing Dep’t of Labor Mem. of Law, Ex. B at
17). This is because, as OSHA itself argued, the total hours worked by a company’s
employees “corresponds with business productivity,” Dep’t of Labor Mem. of Law, Ex.
B at 4, and could be used “to calculate a business[’s] costs and profit margins,” id. at 17
(citing Westinghouse Elec. Corp. v. Schlesinger, 392 F. Supp. 1264, 1249 (E.D. Va.
1976), aff’d, 542 F.2d 1190 (4th Cir. 1976)). The confidentiality problems relating to
hours worked are only exacerbated in this Proposed Rule by OSHA’s insistence on
collecting and publishing this information on an establishment-by-establishment basis,
including the number of employees at each establishment. Armed with total hours
worked plus an establishment’s employee count, a business’ overall capacity and
productivity can easily be determined.

Unfortunately, OSHA now maintains that this information is not worthy of protection and
in the preamble to final rule makes clear that all fields in the Form 300As will be posted, (81
2 See final regulation preamble discussion that “if the final rule leads to either 1.5 fewer fatalities or .025 percent
fewer injuries per year, the rule’s benefits will be equal to or greater than the costs.” 81 Fed. Reg. 29686 (emphasis
added).

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Fed. Reg. 29650) and that since 2004 the agency has taken the position that the annual average
number of employees and total hours worked data is available through FOIA requests. (Id. at
29658).

OSHA has before it an administrative petition submitted by all the litigants in the two
legal challenges to the regulation that asks OSHA to stay the initial compliance date of July 1,
2017, and to further stay implementation and enforcement of the final regulation until the
conclusion of any reconsideration of the regulation. The petition makes clear that OSHA has
both the authority to stay the regulation, and a history of doing so when appropriate.
Furthermore, the approach requested in the petition would provide time for OSHA to develop a
strong record in support of a proposed regulation that would revise or rescind the underlying
regulation. The Chamber renews its request that OSHA implements the steps included in the
petition. The petition is attached for OSHA’s convenience.

OSHA’s proposal for a delay also has practical flaws. OSHA states the online portal will
be available so that employers may become familiar with it by August 1. However, OSHA never
indicates how, or whether, it will be compatible with various digital recordkeeping systems
currently in use. OSHA makes no claim to having field tested the online portal, or beta testing it,
only that employers will have four months with which to learn it. While digital recordkeeping is
certainly a widespread practice and may be preferred, how digital records get transferred to
OSHA’s portal is not explained. If the systems are incompatible, there may actually be manual
data entry involved which would defeat the point of OSHA specifying only digital submission.
Even though submission will be at the establishment level, there may still be significant effort
required to coordinate and compile records for submission purposes. None of these possible,
perhaps likely, steps are accounted for in the economic analysis accompanying this regulation,
nor the underlying final regulation.

The Chamber is pleased to see OSHA moving towards a rulemaking to revise or rescind
the Improve Tracking of Workplace Injuries and Illnesses final regulation. Instead of merely
delaying the compliance date for reporting from July 1, 2017 to December 1, 2017, we urge
OSHA to stay the reporting date indefinitely pending the outcome of the comprehensive
rulemaking OSHA has committed to undertaking. We further urge the agency to act on the
petition submitted by all the litigants involved in the legal challenge to this regulation.

Sincerely,

Randel K. Johnson Marc Freedman
Senior Vice President Executive Director of Labor Law Policy
Labor, Immigration & Employee Benefits Labor, Immigration & Employee Benefits

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Attachments
Attachment 1: U.S. Chamber Comments on OSHA Injury and Illness Electronic
Reporting Rule
Attachment 2: U.S. Chamber Comments on Supplemental NPRM
Attachment 3: Electronic Recordkeeping Petition