[Federal Register Volume 88, Number 167 (Wednesday, August 30, 2023)]
[Proposed Rules]
[Pages 59825-59834]
[FR Doc No: 2023-18695]

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1903

[Docket No. OSHA-2023-0008]
RIN 1218-AD45

Worker Walkaround Representative Designation Process

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

ACTION: Proposed rule; request for comments.

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SUMMARY: OSHA is proposing to amend its Representatives of Employers
and Employees regulation to clarify that the representative(s)
authorized by employees may be an employee of the employer or a third
party; such third-party employee representative(s) may accompany the
OSHA Compliance Safety and Health Officer (CSHO) when they are
reasonably necessary to aid in

the inspection. OSHA is also proposing clarifications of the relevant
knowledge, skills, or experience with hazards or conditions in the
workplace or similar workplaces, or language skills of third-party
representative(s) authorized by employees who may be reasonably
necessary to the conduct of a CSHO's physical inspection of the
workplace. OSHA has preliminarily determined that the proposed changes
will aid OSHA's workplace inspections by better enabling employees to
select a representative of their choice to accompany the CSHO during a
physical workplace inspection. Employee representation during the
inspection is critically important to ensuring OSHA obtains the
necessary information about worksite conditions and hazards. The agency
requests comments regarding the proposed revisions.

DATES: Submit comments by October 30, 2023. All submissions must
provide evidence of the submission date. (See the following section
titled ADDRESSES for instructions on making submissions.)

ADDRESSES: Comments may be submitted as follows:
    Written comments: You may submit comments and attachments
electronically at https://www.regulations.gov, which is the Federal
eRulemaking Portal. Follow the online instructions for submitting
comments.
    Instructions: All submissions must include the agency's name and
docket number for this rulemaking (Docket No. OSHA-2023-0008). All
comments, including any personal information you provide, are placed in
the public docket without change and may be made available online at
https://www.regulations.gov. Therefore, OSHA cautions interested
parties about submitting information that they do not want made
available to the public or submitting materials that contain personal
information (either about themselves or others), such as Social
Security numbers and birthdates.
    Docket: To read or download comments or other information in the
docket, go to Docket No. OSHA-2023-0008 at https://www.regulations.gov.
All comments and 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 comments and submissions, including copyrighted material,
are available for inspection through the OSHA Docket Office. Contact
the OSHA Docket Office at<PHONE_NUMBER> (TDY number<PHONE_NUMBER>) for
assistance in locating docket submissions.

FOR FURTHER INFORMATION CONTACT:
    Press inquiries: Frank Meilinger, Director, OSHA Office of
Communications, telephone:<PHONE_NUMBER>; email:
[email protected].
    General and technical inquiries: Donald Klienback, OSHA Directorate
of Construction, telephone:<PHONE_NUMBER>; email:
[email protected].
    Copies of this Federal Register notice and news releases:
Electronic copies of these documents are available at OSHA's web page
at https://www.osha.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
II. Background
    A. The OSH Act and OSHA's Inspection Authority
    B. Regulatory History and Interpretive Guidance
    C. Litigation and Subsequent Agency Enforcement Actions
III. Legal Authority
IV. Summary and Explanation of Proposed Changes
V. Preliminary Economic Analysis and Regulatory Flexibility Act
Certification
    A. Cost
    B. Benefits
    C. Certification of No Significant Impact on a Substantial
Number of Small Entities
VI. Office of Management and Budget (OMB) Review Under the Paperwork
Reduction Act
VII. Federalism
VIII. State Plans
IX. Unfunded Mandates Reform Act
X. Consultation and Coordination With Indian Tribal Governments
XI. Environmental Impact Assessment
XII. Questions and Options
XIII. Public Participation
    A. Public Submissions
XIV. List of Subjects
XV. Authority and Signature

I. Executive Summary

    Section 8(e) of the OSH Act grants a representative of the employer
and a representative authorized by employees the opportunity to
accompany OSHA during the physical inspection of the workplace for the
purpose of aiding the inspection. While OSHA long interpreted one of
section 8(e)'s implementing regulations, 29 CFR 1903.8(c), to permit
third-party representatives authorized by employees to accompany OSHA
on the walkaround inspection when reasonably necessary to the conduct
of an effective and thorough physical inspection of the workplace, a
district court concluded that interpretation was not consistent with
the regulation. OSHA is therefore proposing to revise 29 CFR 1903.8(c)
to clarify the types of individuals who can be a representative(s)
authorized by employees during OSHA's physical inspections of the
workplace (also referred to as the ``walkaround inspection''). This
revision will more clearly align with section 8(e) of the OSH Act, 29
U.S.C. 657(e), and with OSHA's longstanding interpretation of the OSH
Act.
    OSHA is proposing two revisions of 29 CFR 1903.8(c). First, OSHA is
proposing to clarify that the representative(s) authorized by employees
may be an employee of the employer or a third party. Second, OSHA is
proposing to clarify that a third-party representative authorized by
employees may be reasonably necessary to the conduct of an effective
and thorough physical inspection of the workplace by virtue of their
knowledge, skills, or experience. This proposed revision clarifies that
the employees' options for third-party representation during OSHA
inspections are not limited to only those individuals with skills and
knowledge similar to that of the two examples provided in existing
regulatory text: Industrial Hygienist or Safety Engineer.
    The proposed revisions to 1903.8(c) do not change the CSHO's
authority to determine whether an individual is a representative
authorized by employees (29 CFR 1903.8(b)). Also, the proposed
revisions do not affect other provisions of section 1903 that limit
participation in walkaround inspections, such as the CSHO's authority
to prevent an individual from participating in the walkaround
inspection if their conduct interferes with a fair and orderly
inspection (29 CFR 1903.8(d)) or the employer's right to limit entry of
employee authorized representatives into areas of the workplace that
contain trade secrets (29 CFR 1903.9(d)).
    The agency preliminarily concludes that these changes would not
increase costs or compliance burdens for employers.

II. Background

A. The OSH Act and OSHA's Inspection Authority

    The Occupational Safety and Health Act of 1970 (OSH Act or Act) was
enacted ``to assure so far as possible every working [person] in the
Nation safe and healthful working conditions and to preserve our human
resources.'' 29 U.S.C. 651 (b). To effectuate the Act's purpose,
Congress authorized the Secretary of Labor to promulgate occupational
safety and health standards. See 29 U.S.C. 655. The Act

also grants broad authority to the Secretary to promulgate rules and
regulations related to inspections, investigations, and recordkeeping.
See 29 U.S.C. 657.
    Section 8 of the OSH Act states that OSHA's inspection authority is
essential to carrying out the Act's purposes and provides that
employers must give OSHA access to inspect worksites ``without delay.''
29 U.S.C. 657(a). Section 8(e) of the Act provides specifically that
``[s]ubject to regulations issued by the Secretary, a representative of
the employer and a representative authorized by [its] employees shall
be given an opportunity to accompany [the CSHO] for the purpose of
aiding such inspection.'' 29 U.S.C. 657(e). Section 8(g) further
authorizes the Secretary to promulgate such rules and regulations as
the agency deems necessary to carry out the agency's responsibilities
under this Act, including rules and regulations dealing with the
inspection of an employer's establishment. 29 U.S.C. 657(g).

B. Regulatory History and Interpretive Guidance

    On May 5, 1971, OSHA proposed rules and general policies for the
enforcement of the inspection, citation, and penalty provisions of the
OSH Act. (36 FR 8376, May 5, 1971). OSHA subsequently issued
regulations for inspections, citations, and proposed penalties at 29
CFR part 1903. (36 FR 17850, Sept. 4, 1971).
    The OSH Act and 29 CFR part 1903 provide OSHA CSHOs with
significant authority to conduct workplace inspections. Part 1903
contains specific provisions that describe the CSHO's authority and
role in carrying out inspections under the OSH Act. For example, the
CSHO is in charge of conducting inspections and interviewing
individuals, and has authority to permit additional employer
representatives and representative(s) authorized by employees to
participate in the physical inspection of the workplace. See 29 CFR
1903.8(a). In addition, the CSHO has the authority to resolve any
disputes about who the employer and employee representatives are and to
deny any person from participating in the inspection whose conduct
interferes with a fair and orderly inspection. See 29 CFR 1903.8(b),
(d). The CSHO also has authority to use various reasonable
investigative methods and techniques, such as taking photographs,
obtaining environmental samples, and questioning individuals while
carrying out their inspection. 29 CFR 1903.7(b); see also 1903.3(a).
    Section 1903.8(c), the subject of this proposed rulemaking, grants
additional authority to the CSHO to determine whether third-party
representatives would aid in the physical workplace inspection. This
paragraph provides: ``The representative(s) authorized by employees
shall be an employee(s) of the employer. However, if in the judgment of
the Compliance Safety and Health Officer, good cause has been shown why
accompaniment by a third party who is not an employee of the employer
(such as an industrial hygienist or a safety engineer) is reasonably
necessary to the conduct of an effective and thorough physical
inspection of the workplace, such third party may accompany the
Compliance Safety and Health Officer during the inspection.'' 29 CFR
1903.8(c). Section 1903.8, which primarily addresses employer and
employee representatives during inspections, has not been revised since
1971.
    Since issuing its inspection-related regulations, OSHA has provided
guidance on its interpretation of section 1903.8(c) and the meaning of
representative authorized by employees for purposes of the OSHA
walkaround inspection. For example, on March 7, 2003, OSHA issued a
letter of interpretation to Mr. Milan Racic (Racic letter), a health
and safety specialist with the International Brotherhood of
Boilermakers. (Docket ID OSHA-2023-0008-0002). Mr. Racic asked whether
a union representative who files a complaint on behalf of a single
worker could then also act as a walkaround inspection representative in
a workplace that has no labor agreement or certified bargaining agent.
In its response letter, OSHA stated that there was no ``provision for a
walkaround representative who has filed a complaint on behalf of an
employee of the workplace.'' (Docket ID OSHA-2023-0008-0002).
    On February 21, 2013, OSHA issued a letter of interpretation to Mr.
Steve Sallman (Sallman letter) of the United Steel, Paper and Forestry,
Rubber, Manufacturing, Energy, Allied Industrial and Service Workers
International Union. (Docket ID OSHA-2023-0008-0003). Mr. Sallman asked
whether workers at a worksite without a collective bargaining agreement
could designate a person affiliated with a union or a community
organization to act on their behalf as a walkaround representative.
OSHA responded in the affirmative, explaining that such person could
act on behalf of employees as long as they had been authorized by
employees to serve as their representative.
    OSHA further explained that the right is qualified by 29 CFR
1903.8, which gives CSHOs the authority to determine who can
participate in an inspection. OSHA noted that while 1903.8(c)
acknowledged that most employee representatives will be employees of
the employer being inspected, the regulation also explicitly allowed
walkaround participation by an employee representative who is not an
employee of the employer when, in the judgment of the CSHO, such
representative is reasonably necessary to the conduct of an effective
and thorough physical inspection. OSHA explained that such
representatives are reasonably necessary when they will make a positive
contribution to a thorough and effective inspection.
    OSHA gave several examples of how an authorized employee
representative who was not an employee of the employer could make an
important contribution to the inspection, noting that the
representative might have a particular skillset or experience
evaluating similar working conditions in a different facility. OSHA
also highlighted the usefulness to workers and to the CSHO of an
employee representative who is bilingual or multilingual to better
facilitate communication between employees and the CSHO.
    Additionally, OSHA noted that the 2003 Racic letter had
inadvertently created confusion among the regulated community regarding
OSHA's interpretation of an authorized employee representative for
walkaround inspection purposes. OSHA explained that the Racic letter
merely stated that a non-employee who files a complaint does not
necessarily have a right to participate in an inspection arising out of
that complaint, but that it did not address the rights of workers
without a certified or recognized collective bargaining agent to have a
representative of their own choosing participate in an inspection. OSHA
withdrew the Racic letter to eliminate any confusion and then included
its interpretation of 29 CFR 1903.8(c) as to who could serve as an
authorized employee representative when it updated its Field Operations
Manual (FOM) CPL 02-00-159 on October 1, 2015. (Docket ID OSHA-2023-
0008-0004). The FOM explained that ``[i]t is OSHA's view that
representatives are `reasonably necessary', when they make a positive
contribution to a thorough and effective inspection'' and recognized
that there may be cases in which workers without a certified or
recognized bargaining agent would authorize a third party to represent
the

workers on the inspection. Id. OSHA noted that ``[t]he purpose of a
walkaround representative is to assist the inspection by helping the
compliance officer receive valuable health and safety information from
workers who may not be able or willing to provide such information
absent the third-party participants.'' Id.

C. Litigation and Subsequent Agency Action

    In September 2016, several years after OSHA issued the Sallman
letter, the National Federation of Independent Business (NFIB) filed a
suit in the district court for the Northern District of Texas
challenging the Sallman letter, arguing it should have been subject to
notice and comment rulemaking and that it conflicted with OSHA's
regulations and exceeded OSHA's statutory authority. Nat'l Fed'n of
Indep. Bus. v. Dougherty, No. 3:16-CV-2568-D, 2017 WL 1194666 (N.D.
Tex. Feb. 3, 2017). On February 3, 2017, the district court concluded
that OSHA's interpretation as stated in the Sallman letter was not
consistent with 29 CFR 1903.8(c) and such a change to a regulation
could not be made without notice and comment rulemaking. Id. at *11.
The district court held that the letter ``plainly contradicts Sec.
1903.8(c)'s requirement that the employee representative be an employee
himself.'' Id.
    Nevertheless, the court rejected NFIB's claim that the Sallman
letter conflicted with the OSH Act, finding that OSHA's Sallman letter
of interpretation was ``a persuasive and valid construction of the
Act.'' Id. at *12. The court concluded that ``the Act merely provides
that the employee's representative must be authorized by the employees,
not that the representative must also be an employee of the employer.''
Id.
    Following this decision, on April 25, 2017, OSHA rescinded the
Sallman letter. (Docket ID OSHA-2023-0008-0005). OSHA also revised the
FOM to remove language that incorporated the Sallman letter. OSHA is
now engaging in notice and comment rulemaking to clarify who may serve
as a representative authorized by employees for the purpose of
walkaround inspections.

III. Legal Authority

    The OSH Act authorizes the Secretary of Labor to issue safety and
health ``standards'' and other ``regulations.'' See, e.g., 29 U.S.C.
655, 657. An occupational safety and health standard, issued pursuant
to section 6 of the Act, prescribes measures to be taken to remedy an
identified occupational hazard. Other regulations issued pursuant to
general rulemaking authority found, inter alia, in section 8 of the
Act, establish enforcement or detection procedures designed to further
the goals of the Act generally. See 29 U.S.C. 657(c); Workplace Health
and Safety Council v. Reich, 56 F. 3d 1465, 1468 (D.C. Cir. 1995). The
proposed amendments in this notice are to a regulation issued pursuant
to authority expressly granted by section 8 of the Act. 29 U.S.C.
657(e) (authority to promulgate regulations related to employer and
employee representation during an inspection) and (g) (authority to
promulgate rules and regulations dealing with workplace inspections).
These proposed revisions clarify employees' statutory right to a
walkaround representative under section 8 of the OSH Act and do not
impose any new substantive inspection-related requirements.
    Numerous provisions of the OSH Act underscore Congress'
understanding that OSHA's ability to conduct comprehensive inspections
is essential to fulfilling the purposes of the OSH Act to protect
working people from occupational safety and health hazards. Congress
provided OSHA with broad authority to conduct inspections of workplaces
and records, to require the attendance and testimony of witnesses, and
to require the production of evidence. 29 U.S.C. 657(b). OSHA's ability
to carry out these workplace inspections is critical to the OSH Act's
entire enforcement scheme. 29 U.S.C. 658 (authorizing OSHA to issue
citations for violations following an inspection or investigation); 659
(citations shall be issued within a reasonable time after inspection or
investigation). Moreover, any approved State occupational safety and
health plan must provide for an OSHA inspector's right of entry and
inspection that is at least as effective as the OSH Act. 29 U.S.C.
667(c)(3).
    To enable OSHA to conduct robust inspections, the OSH Act grants
the Secretary broad authority to enact inspection-related regulations.
Section 8(g)(2) of the Act generally empowers the Secretary to
prescribe such rules and regulations as the Secretary may deem
necessary for carrying out inspection activity. See 29 U.S.C.
657(g)(2). Section 8(e) also specifically contemplates regulations
related to employee and employer representation during OSHA's
inspection of the workplace. 29 U.S.C. 657(e).
    In addition to granting OSHA broad authority to conduct
comprehensive workplace inspections and promulgate regulations to
effectuate those inspections, Congress also recognized the importance
of ensuring employee participation and representation in the inspection
process. The legislative history of section 8 of the OSH Act shows
Congress' intent to provide representatives authorized by employees
with an opportunity to accompany the inspector in order to benefit the
inspection process and ``provide an appropriate degree of involvement
of employees.'' S. Rep. No. 91-1282 91st Cong., 2nd Sess. (1970),
reprinted in Legislative History of the Occupational Safety and Health
Act of 1970 at 151 (Comm. Print 1971). Senator Harrison A. Williams of
New Jersey, who was a sponsor of the bill that became the OSH Act,
explained that the opportunity for workers themselves and a
representative of their choosing to accompany OSHA inspectors was
``manifestly wise and fair'' and ``one of the key provisions of the
bill.'' Subcomm. on Labor of the Senate Comm. on Labor and Public
Welfare, 92d Cong. 1st Sess., reprinted in Legislative History of the
Occupational Safety and Health Act of 1970, at 430 (Comm. Print. 1971).
    The OSH Act's legislative history further indicates that Congress
considered potential concerns related to the presence of a
representative authorized by employees at the inspection and ultimately
decided to expressly include this right in section 8(e) of the Act.
Congressional debate around this issue included concern from some
members of Congress that a representative authorized by employees'
presence in the inspection would cause an undue burden on employers or
be used as ``an effort to ferment labor unrest.'' See Comments of
Congressperson William J. Scherle of Iowa, 92d Cong. 1st Sess.,
reprinted in Legislative History of the Occupational Safety and Health
Act of 1970, at 1224 (Comm. Print 1971); see also Comments of
Congressperson Michel of Illinois, id. at 1057. Similarly, Senator
Peter Dominick of Colorado proposed an amendment to the Senate bill
that would have removed the right of a representative authorized by the
employees to accompany the CSHO and instead would have only required
that the CSHO consult with employees or their representative at ``a
reasonable time.'' Proposed Amendment No. 1056., 92d Cong. 1st Sess.,
reprinted in Legislative History of the Occupational Safety and Health
Act of 1970, at 370 (Comm. Print 1971). One of the stated reasons for
the proposed amendment was a concern that ``[t]he mandatory

`walk-around' provisions now in the bill could . . . lead to
`collective bargaining' sessions during the course of the inspection
and could therefore interfere both with the inspection and the
employer's operations.'' Id. at 372.
    This proposed amendment was rejected, and Section 8(e) of the OSH
Act reflects Congress' considered judgment of the best way to strike
the balance between employers' concerns about workplace disruptions and
the critical importance of employee representation in the inspection
process. And while section 8(e) underscores the importance of employee
representation in OSHA's workplace inspection, the Act itself does not
place restrictions on who can be a representative authorized by
employees. See 29 U.S.C. 657(e); see also Matter of Establishment
Inspection of Caterpillar Inc., 55 F.3d 334, 338 (7th Cir. 1995)
(``[T]he plain language of Sec.  8(e) permits private parties to
accompany OSHA inspectors,''); Nat'l Fed'n of Indep. Bus., 2017 WL
1194666, at *12 (``[T]he Act merely provides that the employee's
representative must be authorized by the employee, not that the
representative must also be an employee of the employer.'').
    Instead, the Act authorizes the Secretary of Labor (via OSHA) to
issue regulations and determine who may be an authorized employee
representative for purposes of the OSHA inspection. 29 U.S.C. 657(e).
Congress intended to give the Secretary of Labor the authority to issue
regulations related to determining the specifics and resolving the
question of who could be an authorized employee representatives for
purposes of the walkaround inspection. See Legislative History of the
Occupational Safety and Health Act of 1970, at 151 (Comm. Print 1971)
(``Although questions may arise as to who shall be considered a duly
authorized representative of employees, the bill provides the Secretary
of Labor with authority to promulgate regulations for resolving this
question.'').
    While the OSH Act grants the Secretary of Labor broad authority to
inspect workplaces ``without delay'' to find and remedy safety and
health violations, 29 U.S.C. 657(a)(1)-(2), these inspections must be
carried out in a manner consistent with the Fourth Amendment of the
U.S. Constitution regarding reasonable searches. See Marshall v.
Barlow's Inc., 436 U.S. 307 (1978). If an employer refuses entry, OSHA
seeks a warrant, as required by the Fourth Amendment. Id. at 313; see
also 29 CFR 1903.4. At times OSHA might seek an anticipatory warrant to
inspect a worksite, such as if OSHA has been refused entry to inspect a
workplace in the past and anticipates that the employer might refuse
again without proof of a warrant. See 29 CFR 1903.4(b). Because OSHA's
inspections are conducted in accordance with the Fourth Amendment, they
do not constitute a ``physical taking'' under the Takings Clause of the
Fifth Amendment. See Cedar Point Nursery v. Hassid, 141 S. Ct. 2063,
2079 (2021) (``Because a property owner traditionally had no right to
exclude an official engaged in a reasonable search, government searches
that are consistent with the Fourth Amendment and state law cannot be
said to take any property right from landowners.'') (internal citations
omitted); Matter of Establishment Inspection of Caterpillar Inc., 55
F.3d at 339-41 (upholding warrant that authorized participation of
employee representatives as consistent with the Fourth Amendment).
    Based on the foregoing, OSHA has determined that section 8(e) of
the OSH Act, as well as the Act's history and purpose, support OSHA's
longstanding interpretation that the representative(s) authorized by
employees may be employees of the employer or a third party and the
agency's proposed revisions to 29 CFR 1903.8(c).

III. Summary and Explanation of Proposed Changes

    Section 8(e) of the OSH Act, 29 U.S.C. 657(e), Inspections,
Investigations, and Recordkeeping, states that ``[s]ubject to
regulations issued by the Secretary'' a representative authorized by
employees ``shall be given an opportunity to accompany the [CSHO]
during the physical inspection of any workplace under subsection (a)
for the purpose of aiding such inspection.'' The first sentence of
existing section 1903.8(c) states that an authorized employee
representative(s) shall be an employee(s) of the employer being
inspected. However, the second sentence of paragraph (c) provides an
exception for the presence of a third party if the CSHO determines
there is good cause shown why their presence is reasonably necessary to
conduct an effective and thorough physical inspection of the workplace.
Paragraph (c) provides industrial hygienists and safety engineers as
two examples of helpful non-employees who a CSHO might determine are
reasonably necessary to include in the inspection.
    Since its promulgation in 1971, OSHA has interpreted section
1903.8(c) to allow third parties to serve as authorized employee
representatives on the walkaround inspection when reasonably necessary.
However, as described in Background, Section II.C of this preamble, a
district court held that OSHA's interpretation of paragraph (c) was
inconsistent with the regulatory text as written. See Nat'l Fed'n of
Indep. Bus., 2017 WL 1194666, at *11. In OSHA's experience,
representatives authorized by employees are usually employed by the
employer. However, under the OSH Act, they need not be. Id. at *12.
OSHA is therefore proposing to amend 29 CFR 1903.8(c) to clarify that,
for the purpose of the walkaround inspection, the representative(s)
authorized by employees may be an employee of the employer or, when
they are reasonably necessary to aid in the inspection, a third party.
    These changes will ensure employees are able to select trusted and
knowledgeable representatives of their choice, leading to more
effective inspections. The OSH Act gives employees in all workplaces--
whether they have a collective bargaining agreement or not--the right
to have a representative authorized by them to accompany OSHA during a
workplace inspection for purposes of aiding the inspection. See 29
U.S.C. 657(e). The criteria outlined in paragraph (c) therefore applies
to all worksites that OSHA inspects.
    When the representative(s) authorized by employees are not employed
by the employer, they may accompany the CSHO during the inspection if
in the judgment of the CSHO, good cause has been shown why they are
reasonably necessary to the conduct of an effective and thorough
physical inspection of the workplace. OSHA proposes to revise paragraph
(c) to clarify that third-party representatives authorized by employees
may have a variety of skills, knowledge, or experience that could aid
the CSHO's inspection. This includes knowledge, skills, or experience
with particular hazards or conditions in the workplace or similar
workplaces, as well as any relevant language skills a representative
may have to facilitate better communication between workers and the
CSHO. Therefore, OSHA proposes to delete the examples of industrial
hygienists and safety engineers currently in paragraph (c) so that the
focus is properly on the knowledge, skills, or experience of the
individual rather than their professional discipline. This proposed
deletion does not signal that an industrial hygienist or safety
engineer cannot be a representative authorized by employees.
    In OSHA's experience, there are a multitude of third parties who
might serve as representatives authorized by employees for purposes of
the OSHA walkaround inspection. The examples discussed in this proposal
are not

exhaustive and OSHA seeks comment, including any data or anecdotal
examples, of individuals who might be selected by employees to serve as
their authorized employee representative in an OSHA walkaround
inspection.
    One scenario where OSHA has encountered third-party employee
representatives is in union workplaces where employees have designated
a union representative, such as an elected local union leader, business
agent, or safety and health specialist, to be their representative for
the walkaround inspection. These representatives are often employees of
the union rather than the employer being inspected. Third-party
representation may also arise in workplaces without collective
bargaining agreements where employees have designated a representative
from a worker advocacy group, community organization, or labor union to
serve as their representative in an OSHA inspection.
    Relatedly, there may be safety organizations, such as local safety
councils, with safety professionals or technical representatives for
the equipment used and operations performed at the employee's worksite.
Section 1903.8(c) as proposed would more explicitly permit employees to
designate such a safety professional or technical representative as
their authorized employee representative.
    Another scenario where employees may wish to designate a third-
party representative is on multi-employer worksites or joint-employer
worksites where it is not always clear at the time of the walkaround
inspection which employees are employed by which employer. On many
worksites, employees with different employers may work near each other
and may have knowledge of the workplace conditions, work practices, and
hazards; in some cases, they may even perform the same or similar work.
On worksites like these, it is foreseeable that employees may choose to
designate a third party as their representative for the walkaround
inspection. Likewise, on worksites where non-union employees work in
proximity to union employees, employees may wish to designate the union
representative to speak of worksite conditions and operations on their
behalf.
    There may also be circumstances where employees are not fluent in
English (or another language spoken by the CSHO) and want a trusted
representative to allow for open and effective communication with the
CSHO regarding workplace conditions. For example, employees might
determine that a bilingual representative or an interpreter should
represent them on the inspection and the CSHO might find such a
representative is useful to ensure the CSHO receives an accurate
account of workers' knowledge and experience with safety and health
conditions in the workplace.
    In other situations, employees may be reluctant to speak directly
or candidly with government officials for a number of reasons. For
example, some workers, such as immigrants, refugees, or other
vulnerable workers, may be unfamiliar with OSHA and the agency's
inspection process, face cultural barriers, or fear that their employer
will retaliate against them for speaking to OSHA. In these situations,
employees may not feel comfortable participating in OSHA's inspection
without a trusted presence, which would negatively affect the CSHO's
ability to obtain important information about workplace hazards and
conditions. Worker advocacy organizations, labor organization
representatives, consultants, or attorneys who are experienced in
interacting with government officials or have relevant cultural
competencies may be authorized by employees to represent them on
walkaround inspections. The CSHO may determine such third-party
representatives are reasonably necessary to the conduct of an effective
and thorough physical workplace inspection if their presence during the
walkaround inspection would enable more open and candid communication
with employees who may not otherwise be willing to participate in the
inspection.
    In general, OSHA seeks comment on why employees may wish to be
represented by a third-party representative. Additionally, OSHA seeks
comment and examples of third-party representatives who have been or
could be reasonably necessary to the conduct of an effective and
thorough physical inspection of the workplace.
    Once the CSHO is notified that the employees have authorized a
third party to represent them during a walkaround inspection, the CSHO
would allow the third party to participate in the inspection so long as
the CSHO determines that they would be reasonably necessary to aid in
the inspection. The third party should have relevant skills, knowledge,
or experience that would be helpful to OSHA's inspection despite not
being directly employed by the employer.
    OSHA has found that third-party representatives can help ensure
that OSHA's walkaround inspection is comprehensive. In one example from
2012, a worker for a company removing asbestos at a worksite reported
safety concerns to OSHA and a third party. The third party contacted
OSHA and a community organization on behalf of the workers to ensure
their safety and health concerns were fully communicated to and
understood by the CSHO. The community organization's attorney and a
former employee of the workplace were chosen as the employees'
representatives to participate in the walkaround inspection. OSHA found
the presence of both individuals to be very beneficial to the
inspection because the representatives were able to clearly identify
and communicate safety concerns to the CSHO during the walkaround. Many
of the exposed workers on this worksite were not fluent in English, and
having representatives who the workers trusted and facilitated
communication with the CSHO enabled OSHA to conduct numerous worker
interviews and better investigate the workplace conditions. OSHA seeks
comment providing examples or information regarding any other unique
skills of representatives authorized by employees that have been
helpful or added safety and health value to the CSHO's physical
inspection of the workplace.
    The proposed revisions to paragraph (c) do not change the existing
precondition that the CSHO must determine that any third-party employee
representative's participation is reasonably necessary to the conduct
of an effective and thorough inspection. These proposed revisions also
do not implicate any other limitations found elsewhere in part 1903.
    For example, paragraph 1903.8(a) explains that the CSHO is in
charge of the inspection process. 29 CFR 1903.8(a). Paragraph 1903.8(b)
authorizes the CSHO to resolve any disputes as to who the authorized
representatives are, and if the CSHO is unable to determine who is the
representative authorized by employees, the CSHO will then consult a
reasonable number of employees concerning matters of safety and health
in the workplace. 29 CFR 1903.8(b). Paragraph 1903.8(d) authorizes the
CSHO to deny individuals from participating in the inspection if their
conduct interferes with a fair and orderly inspection process. 29 CFR
1903.8(d). Therefore, the CSHO considers a range of factors when
determining who can participate in the walkaround inspection as a
representative authorized by employees.
    In addition to the limitations in 29 CFR 1903.8, employers also
maintain the right to request that areas of the facility containing
trade secrets be off-limits to the representatives authorized

by employee(s) who do not work in that particular part of the facility.
29 CFR 1903.9(d). As explained in Background, Section II. of this
preamble, the proposed revisions to 1903.8(c) do not alter or limit any
of these other provisions related to the CSHO's determinations or the
inspection process.
    Finally, OSHA notes that paragraph 1903.8(c) addresses
representatives authorized by employees for purposes of OSHA's physical
inspections of workplaces. While OSHA proposes changes to this
paragraph to clarify the relevant knowledge, skills, experience with
hazards or conditions in the workplace or similar workplaces, or
language skills of third-party representatives authorized by employees
who may be reasonably necessary to aid in the CSHO's inspection, these
proposed revisions are not intended to narrow or otherwise limit OSHA's
authority to conduct effective and thorough workplace inspections,
including its authority to be accompanied by other types of third
parties or experts who may be needed to properly conduct the
inspection. See generally, 29 U.S.C. 657(a), (b); see also 29 CFR
1903.4(b)(3).
    OSHA seeks comment on whether the proposed changes to paragraph (c)
are clear regarding representatives authorized by employees for
purposes of walkaround inspections. Why or why not? OSHA also seeks
comment on how to best communicate the right of all employees to
employee representation on a physical inspection of the workplace.

V. Preliminary Economic Analysis and Regulatory Flexibility Act
Certification

    Executive Orders 12866 and 13563 require OSHA estimate the
benefits, costs, and net benefits of 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. 1532(a)) also require
OSHA to estimate the costs, assess the benefits, and analyze the
impacts of certain rules that the agency promulgates. Executive Order
13563 emphasizes the importance of quantifying both costs and benefits,
reducing costs, harmonizing rules, and promoting flexibility. This
proposal is not significant under section 3(f)(1) of Executive Order
12866, as amended by Executive Order 14094, nor is it a major rule
under the Unfunded Mandates Reform Act or Section 804 of the Small
Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et
seq.).
    OSHA is proposing to revise and clarify its requirements for
employee authorized representation during OSHA's physical inspections
of the workplace to clarify that the representative(s) authorized by
employees may be an employee of the employer or a third party.
Additionally, OSHA is proposing to further clarify the relevant
knowledge, skills, or experience with hazards or conditions in the
workplace or similar workplaces, or language skills of third-party
representative(s) authorized by employees who may accompany an OSHA
Compliance Safety and Health Officer (CSHO) when they are reasonably
necessary to the conduct of an effective and thorough physical
inspection of the workplace. The proposed revisions will also clarify
that the employees' options for third-party representation during OSHA
inspections are not limited to the two examples provided in existing
regulatory text: Industrial Hygienist or Safety Engineer. OSHA has
preliminarily determined that these clarifications do not introduce a
new or expanded burden on employers.
    As discussed earlier in Background, Section II. of this preamble,
OSHA published rules and general policies for the enforcement of the
inspection, citation, and penalty provisions of the OSH Act on
September 4, 1971. These include Section 1903.8(c), the subject of this
proposed rulemaking, which grants authority to the CSHO to determine
whether a third-party representative would aid the physical workplace
inspection and to have that representative accompany the CSHO on the
inspection.

A. Costs

    This proposed rule imposes no new burden on employers and does not
require them to take any action to comply. The proposed rule clarifies
who can be an authorized employee representative during OSHA's
walkaround inspection. Regulatory impact analysis is meant to estimate
the costs of a change from the current situation without the proposed
or final rule to a world where the proposed or final rule exists. This
proposed rule simply clarifies employee rights and OSHA's authority
with regard to inspection procedures. The proposed clarification does
not impose any costs on employers.
    In evaluating potential costs, OSHA considered that employers may
have policies and rules for third parties, such as visitors must wear
PPE on site or participate in a safety briefing before entering as well
as procedures in place to protect confidential business information
from third parties who may be on site. However, such policies are not
required by this regulation, and therefore any associated costs are
therefore not attributable to this proposed rule. Moreover, OSHA
believes there would be no real cost to an employer to have an
additional visitor on site. PPE could be supplied from extra PPE that
might be available on site for visitors or could be supplied by the
third party. There is no cost to have one more individual present
during any potential safety briefing since any potential briefing would
be given regardless of the number of individual present.
    In addition, this proposed rule does not require the employer make
a third party available nor does it require the employer to pay for
that third party's time. While there is an opportunity cost to the
third party insomuch as their time is being spent on an inspection
versus other activities they could be engaged in, that time is not
compensated by the employer whose worksite is being inspected and is
not a burden on that employer. OSHA has preliminarily determined that
this proposed rule does not impose costs on employers. The agency
welcomes comment on this determination and information on costs the
public believes OSHA should consider.

B. Benefits

    While there are no new costs borne by employers associated with
this proposal, clarifying Section 1903.8(c) will reinforce the benefits
of the OSH Act. Third-party employee representatives--given their
knowledge, expertise, or skills with hazardous workplace conditions--
can increase employee participation and help ensure that CSHOs conduct
comprehensive workplace inspections, leading to safer workplaces. OSHA
welcomes information, data, and comments on anticipated cost savings
and benefits.

C. Certification of No Significant Impact on a Substantial Number of
Small Entities

    The proposed rule does not impose costs of compliance on employers.
Therefore, OSHA certifies that, if promulgated, the proposed rule will
not have a significant economic impact on a substantial number of small
entities.

VI. OMB Review Under the Paperwork Reduction Act

    This proposed rule for Worker Walkaround Representative Designation
Process contains no information collection requirements subject to OMB

approval under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C.
3501 et seq.) and its implementing regulations at 5 CFR part 1320. The
PRA defines a collection of information as ``the obtaining, causing to
be obtained, soliciting, or requiring the disclosure to third parties
or the public, of facts or opinions by or for an agency, regardless of
form or format.'' 44 U.S.C. 3502(3)(A). Under the PRA, a Federal agency
cannot conduct or sponsor a collection of information unless OMB
approves it, and the agency displays a currently valid OMB control
number (44 U.S.C. 3507). Also, notwithstanding any other provision of
law, no employer 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 (44 U.S.C. 3512).

VII. Federalism

    OSHA reviewed this proposed rule in accordance with the Executive
Order on Federalism (E.O. 13132, 64 FR 43255, August 10, 1999), which
requires that Federal agencies, to the extent possible, refrain from
limiting State policy options, consult with States prior to taking any
actions that would restrict State policy options, and take such actions
only when clear constitutional and statutory authority exists, and the
problem is national in scope. This proposal merely clarifies
requirements related to employee representation during workplace safety
and health inspections conducted by OSHA under the OSH Act. Because
these inspections are conducted by OSHA, not States, and occur under
the authority of federal law, OSHA does not believe that the proposal
would restrict any State policy options.
    Section 18(a) of the OSH Act states that ``[n]othing in this Act
shall prevent any State agency or court from asserting jurisdiction
under State law over any occupational safety or health issue with
respect to which no standard is in effect under section 6'' (see 29
U.S.C. 667(a)). Because this rulemaking action involves a
``regulation'' issued under Section 8 of the OSH Act (29 U.S.C. 657),
and not an occupational safety and health standard under section 6 of
the OSH Act (29 U.S.C. 655), it does not preempt State law under
section 18(a). See 29 U.S.C. 667(a). The effect of a rule on states and
territories with OSHA-approved occupational safety and health State
Plans is discussed in Section VIII, State Plans.

VIII. State Plans

    As discussed in the Summary and Explanation section of this
preamble, this proposed rule would revise the language in OSHA's
Representatives of employers and employees regulation, found at 29 CFR
1903.8(c), to explicitly clarify that the representative(s) authorized
by employees may be an employee of the employer or a third party for
purposes of an OSHA walkaround inspection. Additionally, OSHA is
proposing to further clarify that when the CSHO has good cause to find
that a representative authorized by employees who is not an employee of
the employer would aid in the inspection, for example because they have
knowledge or experience with hazards in the workplace, or other skills
that would aid the inspection, the CSHO may allow the employee
representative to accompany the CSHO on the inspection.
    Among other requirements, section 18 of the OSH Act requires OSHA-
approved State Plans to enforce occupational safety and health
standards in a manner that is at least as effective as Federal OSHA's
standards and enforcement program, and to provide for a right of entry
and inspection of all workplaces subject to the Act that is at least as
effective as that provided in section 8 (29 U.S.C. 667(c)(2)-(3)). As
described above and in the Summary and Explanation of this preamble,
OSHA believes that these proposed clarifying revisions would enhance
the effectiveness of OSHA's inspections and enforcement of occupational
safety and health standards. Therefore, OSHA has preliminarily
determined that, within six months of the promulgation of a final rule,
State Plans would be required to adopt regulations that are identical
or ``at least as effective'' as this rule, unless they demonstrate that
such amendments are not necessary because their existing requirements
are already ``at least as effective'' in protecting workers as the
Federal rule. See 29 CFR 1953.4(b)(3).
    Of the 29 States and Territories with OSHA-approved State Plans, 22
cover both public and private-sector employees: 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. The remaining seven States and Territories cover only state
and local government employees: Connecticut, Illinois, Maine,
Massachusetts, New Jersey, New York, and the Virgin Islands.

IX. Unfunded Mandates Reform Act

    OSHA reviewed this proposal according to the Unfunded Mandates
Reform Act of 1995 (``UMRA''; 2 U.S.C. 1501 et seq.). As discussed
above in Section V of this preamble, the agency preliminarily
determined that this proposal would not impose costs on any private- or
public-sector entity. Accordingly, this proposal would not require
additional expenditures by either public or private employers.
    As noted above, the agency's regulations and standards do not apply
to State and local governments except in States that have elected
voluntarily to adopt a State Plan approved by the agency. Consequently,
this proposal does not meet the definition of a ``Federal
intergovernmental mandate.'' See Section 421(5) of the UMRA (2 U.S.C.
658(5)). Therefore, for the purposes of the UMRA, the agency certifies
that this proposal would not mandate that State, local, or Tribal
governments adopt new, unfunded regulatory obligations. Further, OSHA
concludes that the rule would not impose a Federal mandate on the
private sector in excess of $100 million (adjusted annually for
inflation) in expenditures in any one year.

X. Consultation and Coordination With Indian Tribal Governments

    OSHA reviewed this proposed rule in accordance with Executive Order
13175 (65 FR 67249) and has preliminarily determined that it would not
have ``tribal implications'' as defined in that order. The proposed
clarifications to 29 CFR 1903.8(c), if promulgated, would not have
substantial direct effects on one or more Indian tribes, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes. OSHA seeks comment on its preliminary
determination. Additionally, OSHA plans to consult with the appropriate
tribal entities regarding its preliminary determination.

XI. Environmental Impact Assessment

    OSHA reviewed the proposed rule in accordance with the requirements
of the National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et
seq.), the regulations of the Council on Environmental Quality (40 CFR
parts 1500 through 1508), and the Department of Labor's NEPA procedures
(29 CFR part 11). The agency finds that the revisions included in this
proposal would have no major negative impact on air, water, or soil
quality, plant or animal life, the use of land or other aspects of the
environment.

XII. Questions and Options

    OSHA invites stakeholders to comment on all aspects of this
proposal. In addition, OSHA is soliciting stakeholder input on
regulatory options to allow for potential regulatory flexibility
regarding the content of any final rule resulting from this rulemaking.
In particular, OSHA seeks input on whether to maintain the existing
requirement in 29 CFR 1903.8(c) for a third-party employee
representative to be ``reasonably necessary to the conduct of an
effective and thorough physical inspection of the workplace'' given
that Section 8(e) of the OSH Act more generally provides that employee
representatives ``shall be given an opportunity to accompany'' the CSHO
``during the physical inspection of any workplace . . . for the purpose
of aiding such inspection.'' 29 U.S.C. 657(e).
    Under OSHA's implementing regulations, OSHA defers to the
employer's determination regarding which employer representative would
aid the inspection. See 29 CFR 1903.8(a). On the other hand, currently,
OSHA defers to the employees' determination regarding which
representative would aid the inspection only if that representative is
employed by the employer. See 29 CFR 1903.8(c). When the representative
authorized by employees is a third party, the CSHO must determine that
there is good cause why the third-party representative is reasonably
necessary to the conduct of an effective and thorough physical
inspection of the workplace. See 29 CFR 1903.8(c). If the CSHO makes
that determination, the third-party employee representative may
accompany the CSHO during the physical inspection of the worksite. Note
that the CSHO is authorized to resolve any dispute as to who the
employer's and employees' authorized representatives are and deny the
right of accompaniment to any person whose conduct would interfere with
a fair and orderly inspection. See 29 CFR 1903.8(b), (d).
    OSHA solicits feedback regarding the ``reasonably necessary''
requirement in paragraph (c); the below questions do not affect CSHOs'
authority under paragraphs (b) and (d).
    1. Should OSHA defer to the employees' selection of a
representative to aid the inspection when the representative is a third
party (i.e., remove the requirement for third-party representatives to
be reasonably necessary to the inspection)? Why or why not? Please
provide any relevant information, examples, considerations, and/or data
to support your position.
    2. Should OSHA retain the language as proposed, but add a
presumption that a third-party representative authorized by employees
is reasonably necessary to the conduct of an effective and thorough
physical inspection of the workplace? Why or why not? Please provide
any relevant information, examples, considerations and/or data to
support your position.
    3. Should OSHA expand the criteria for an employees' representative
that is a third party to participate in the inspection to include
circumstances when the CSHO determines that such participation would
aid employees in effectively exercising their rights under the OSH Act?
Why or why not? If so, should OSHA defer to employees' selection of a
representative who would aid them in effectively exercising their
rights?

XIII. Public Participation

    Inspection-related requirements promulgated under the Occupational
Safety and Health Act of 1970 (OSH Act) are regulations, not standards.
Therefore, this rulemaking is governed by the notice and comment
requirements in the Administrative Procedure Act (APA), 5 U.S.C. 553,
rather than by section 6(b) of the OSH Act (29 U.S.C. 655(b)) and 29
CFR part 1911 (both of which apply only to promulgating, modifying or
revoking occupational safety or health standards). The OSH Act
requirement for the agency to hold an informal public hearing on a
proposed rule, when requested, does not apply to this rulemaking. See
29 U.S.C. 655(b)(3).
    The APA, which governs this rulemaking, does not require a public
hearing; instead, it states that the agency must ``give interested
persons an opportunity to participate in the rulemaking through
submission of written data, views, or arguments with or without
opportunity for oral presentation.'' 5 U.S.C. 553(c). To promulgate a
proposed regulation, the APA requires the agency to provide the terms
of the proposed rule (or a description of those terms) and specify the
time, place, and manner of rulemaking proceedings. See 5 U.S.C. 553(b).
The APA does not specify a minimum period for submitting comments.
    In accordance with the goals of Executive Order 12866, OSHA is
providing 60 days for public comment (see section 6(a)(1) of Executive
Order 12866).

A. Public Submissions

    OSHA invites comments on all aspects of the proposed rule. OSHA
will carefully review and evaluate any comments, information, or data
received, as well as all other information in the rulemaking record, to
determine how to proceed. When submitting comments, please follow the
procedures specified in the sections titled DATES and ADDRESSES of this
document. The comments should clearly identify the provision of the
proposal being addressed, the position taken with respect to each
issue, and the basis for that position. Comments, along with supporting
data and references, submitted by the end of the specified comment
period will become part of the rulemaking record, and will be available
for public inspection at the Federal eRulemaking Portal (http://www.regulations.gov) and at the OSHA Docket Office, 200 Constitution
Avenue NW--Room N-2625, Washington, DC 20210. (See the section titled
ADDRESSES of this document for additional information on how to access
these documents.)

XIV. List of Subjects in 29 CFR Part 1903

    Occupational safety and health, health, administrative practice and
procedures, law enforcement.

XV. Authority and Signature

    Douglas L. Parker, Assistant Secretary of Labor for Occupational
Safety and Health, U.S. Department of Labor, authorized the preparation
of this document pursuant to 29 U.S.C. 657; 5 U.S.C. 553; Secretary of
Labor's Order 8-2020, 85 FR 58393 (2020).

    Signed at Washington, DC.
Douglas L. Parker,
Assistant Secretary of Labor for Occupational Safety and Health.

    For the reasons stated in the preamble, OSHA proposes to amend 29
CFR part 1903 to read as follows:

PART 1903--INSPECTIONS, CITATIONS AND PROPOSED PENALTIES [AMENDED]

0
1. The authority citation for part 1903 is revised to read as follows:

    Authority:  29 U.S.C. 657; Secretary of Labor's Order No. 8-2020
(85 FR 58393); and 5 U.S.C. 553.

0
2. In Sec.  1903.8 revise paragraph (c) to read as follows:

Sec.  1903.8  Representatives of employers and employees.

* * * * *
    (c) The representative(s) authorized by employees may be an
employee of the employer or a third party. When the representative(s)
authorized by

employees is not an employee of the employer, they may accompany the
Compliance Safety and Health Officer during the inspection if, in the
judgment of the Compliance Safety and Health Officer, good cause has
been shown why their participation is reasonably necessary to the
conduct of an effective and thorough physical inspection of the
workplace (e.g., because of their relevant knowledge, skills, or
experience with hazards or conditions in the workplace or similar
workplaces, or language skills).
* * * * *

[FR Doc. 2023-18695 Filed 8-29-23; 8:45 am]
BILLING CODE 4510-26-P