Federal Register / Vol. 88, No. 167 / Wednesday, August 30, 2023 / Proposed Rules 59825 

List of Subjects in 27 CFR Part 9 

Wine. 

Proposed Regulatory Amendment 

For the reasons discussed in the 

preamble, we propose to amend title 27, 

chapter I, part 9, Code of Federal 

Regulations, as follows: 

PART 9—AMERICAN VITICULTURAL 

AREAS 

■ 1. The authority citation for part 9 

continues to read as follows: 

Authority: 27 U.S.C. 205. 

Subpart C—Approved American 

Viticultural Areas 

■ 2. Add § 9.ll to read as follows: 

§ 9.ll San Luis Rey. 

(a) Name. The name of the viticultural 

area described in this section is ‘‘San 

Luis Rey’’. For purposes of part 4 of this 

chapter, ‘‘San Luis Rey’’ is a term of 

viticultural significance. 

(b) Approved maps. The 8 United 

States Geological Survey (USGS) 

1:24,000 scale topographic maps used to 

determine the boundary of the 

viticultural area are as follows: 

(1) Oceanside, CA, 2018; 

(2) San Luis Rey, CA, 2018; 

(3) San Marcos, CA, 2018; 

(4) Valley Center, CA, 2018; 

(5) Bonsall, CA, 2018; 

(6) Temecula, CA, 2018; 

(7) Fallbrook, CA, 2018; and 

(8) Morro Hill, CA, 2018. 

(c) Boundary. The San Luis Rey 

viticultural area is located in San Diego 

County, California. The boundary of the 

San Luis Rey viticultural area is 

described as follows: 

(1) The beginning point is on the 

Oceanside map at the intersection of 

Interstate 5 and the Marine Corps Base 

(MCB) Camp Pendleton boundary. From 

the beginning point, proceed northeast 

for a total of 11.21 miles along the MCB 

Camp Pendleton boundary, crossing 

over the San Luis Rey map and onto the 

Morro Hill map, and continuing along 

the MCB Camp Pendleton boundary to 

its intersection with the Naval Weapons 

Station (NWS) Seal Beach Fallbrook 

California boundary; then 

(2) Proceed east along the NWS Seal 

Beach Fallbrook California boundary for 

a total of 6.85 miles, crossing onto the 

Bonsall map and continuing north, then 

west along the boundary, and crossing 

back onto the Morro Hill map and 

continuing northerly along the 

boundary, crossing onto the Fallbrook 

map, and continuing along the 

boundary as it becomes concurrent with 

the MCB Camp Pendleton boundary, 

and continuing along the boundary to 

its intersection with De Luz Road; then 

(3) Proceed east along De Luz Road for 

0.38 mile to its intersection with Sandia 

Creek Drive; then 

(4) Proceed northerly along Sandia 

Creek Drive for a total of 3.98 miles, 

crossing onto the Temecula map and 

continuing along Sandia Creek Drive to 

its intersection with an unnamed road 

known locally as Rock Mountain Road; 

then 

(5) Proceed east along Rock Mountain 

Road for 0.21 mile to its intersection 

with the San Diego County line; then 

(6) Proceed south then east along the 

San Diego County line for 6.72 miles to 

its intersection with an unnamed road 

known locally as Old Highway 395; 

then 

(7) Proceed south along Old Highway 

395 for a total of 14.9 miles, crossing 

onto the Bonsall map and continuing 

south along Old Highway 395 to its 

intersection with an unnamed road 

known locally as Old Castle Road; then 

(8) Proceed east on Old Castle Road 

for a total of 0.59 mile, crossing onto the 

San Marcos map and continuing east 

along Old Castle Road to its intersection 

with Gordon Hill Road; then 

(9) Proceed southeasterly along 

Gordon Hill Road for 0.92 mile to its 

intersection with the 800-foot elevation 

contour; then 

(10) Proceed east along the 800-foot 

elevation contour for a total of 2.5 miles, 

crossing onto the Valley Center map and 

continuing east along the 800-foot 

elevation contour to its intersection 

with Canyon Country Lane; then 

(11) Proceed northwest and then 

south along Canyon Country Lane for 

0.83 mile to its intersection with the 

1,240-foot elevation contour; then 

(12) Proceed east along the 1,240-foot 

elevation contour for 2.90 miles to its 

intersection with Cougar Pass Road; 

then 

(13) Proceed west then south along 

Cougar Pass Road for 0.4 mile to its 

intersection with Meadow Glen Way 

East; then 

(14) Proceed south along Meadow 

Glen Way East for 0.46 mile to its 

intersection with Hidden Meadows 

Road; then 

(15) Proceed southwest along Hidden 

Meadows Road for 0.73 mile to its 

intersection with Mountain Meadow 

Road; then 

(16) Proceed southwest along 

Mountain Meadow Road for a total of 

1.44 miles, crossing onto the San 

Marcos map and continuing along 

Mountain Meadow Road to the point 

where Mountain Meadow Road becomes 

known as Deer Springs Road just west 

of Interstate 15; then 

(17) Proceed southwest along Deer 

Springs Road for 2.42 miles to its 

intersection with an unnamed road 

known locally as North Twin Oaks 

Valley Road; then 

(18) Proceed south along North Twin 

Oaks Valley Road for 3.01 miles to its 

intersection with an unnamed road 

known locally as West Mission Road; 

then 

(19) Proceed northwest along West 

Mission Road (which becomes South 

Santa Fe Avenue) for a total of 3.9 miles 

to its intersection with Robelini Drive; 

then 

(20) Proceed southwest along Robelini 

Drive (which becomes Sycamore 

Avenue) for a total of 0.55 mile to its 

intersection with State Highway 78; 

then 

(21) Proceed northwest, then westerly 

along State Highway 78 for a total of 

9.09 miles, crossing onto the San Luis 

Rey map and continuing westerly along 

State Highway 78 to its intersection 

with Interstate 5; then 

(22) Proceed northwest along 

Interstate 5 for a total of 3.14 miles, 

crossing onto the Oceanside map and 

returning to the beginning point. 

Signed: August 21, 2023. 

Mary G. Ryan, 

Administrator. 

Approved: August 22, 2023. 

Thomas C. West, Jr., 

Deputy Assistant Secretary (Tax Policy). 

[FR Doc. 2023–18587 Filed 8–29–23; 8:45 am] 

BILLING CODE 4810–31–P 

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. 

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 thirdparty employee representative(s) may 

accompany the OSHA Compliance 

Safety and Health Officer (CSHO) when 

they are reasonably necessary to aid in 


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59826 Federal Register / Vol. 88, No. 167 / Wednesday, August 30, 2023 / Proposed Rules 

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 thirdparty 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 (202) 

693–2500 (TDY number 877–889–5627) 

for assistance in locating docket 

submissions. 

FOR FURTHER INFORMATION CONTACT: 

Press inquiries: Frank Meilinger, 

Director, OSHA Office of 

Communications, telephone: (202) 693– 

1999; email: meilinger.francis2@dol.gov. 

General and technical inquiries: 

Donald Klienback, OSHA Directorate of 

Construction, telephone: (202) 693– 

2020; email: klienback.donald.w@

dol.gov. 

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 


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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 


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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 § 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 inspectionrelated 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 


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‘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 

§ 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 


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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 thirdparty 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 offlimits to the representatives authorized 


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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 


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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 OSHAapproved 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. 


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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] 

■ 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. 

■ 2. In § 1903.8 revise paragraph (c) to 

read as follows: 

§ 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 


lotter on DSK11XQN23PROD with PROPOSALS1
59834 Federal Register / Vol. 88, No. 167 / Wednesday, August 30, 2023 / Proposed Rules 

1EPA has made it clear that general exemptions 

for small cold cleaner degreasing operations are not 

allowed. See Memorandum from Richard Rhoads, 

EPA OAQPS, to Director, Air and Hazardous 

Materials Division, Regions I to X, Clarification of 

Degreasing Regulation Requirements, September 7, 

1978. See 2–24, Solvent Metal Cleaning, in the 

‘‘Issues Relating to VOC Regulation Cut Points, 

Deficiencies, And Deviations’’ guidance, as revised 

on January 11, 1990. 

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 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2021–0477; FRL–9848–01– 

R5] 

Air Plan Approval; Indiana; Volatile 

Organic Compounds; Cold Cleaner 

Degreasing 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

revisions to the volatile organic 

compound (VOC) rules contained in the 

Indiana State Implementation Plan 

(SIP). Indiana modified its rules to 

provide an additional option for 

compliance with the volatile organic 

compound (VOC) vapor pressure limit 

for solvents used in cold cleaning 

degreasing operations. In addition, rule 

language was updated for clarity and 

consistency. 

DATES: Comments must be received on 

or before September 29, 2023. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R05– 

OAR–2021–0477 at https://

www.regulations.gov, or via email to 

blakley.pamela@epa.gov. For comments 

submitted at Regulations.gov, follow the 

online instructions for submitting 

comments. Once submitted, comments 

cannot be edited or removed from 

Regulations.gov. For either manner of 

submission, EPA may publish any 

comment received to its public docket. 

Do not submit electronically any 

information you consider to be 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. EPA will generally not consider 

comments or comment contents located 

outside of the primary submission (i.e., 

on the web, cloud, or other file sharing 

system). For additional submission 

methods, please contact the person 

identified in the FOR FURTHER

INFORMATION CONTACT section. For the 

full EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

https://www2.epa.gov/dockets/ 

commenting-epa-dockets. 

FOR FURTHER INFORMATION CONTACT: Matt 

Rau, Environmental Engineer, Control 

Strategies Section, Air Programs Branch 

(AR–18J), Environmental Protection 

Agency, Region 5, 77 West Jackson 

Boulevard, Chicago, Illinois 60604, 

(312) 886–6524, rau.matthew@epa.gov. 

The EPA Region 5 office is open from 

8:30 a.m. to 4:30 p.m., Monday through 

Friday, excluding Federal holidays and 

facility closures due to COVID–19. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. 

I. Background 

On July 14, 2021, Indiana submitted 

a request to revise the VOC rules in its 

SIP. The revisions are to the 326 Indiana 

Administrative Code (IAC) Article 8 

Volatile Organic Compound rules. 

Indiana submitted revisions to the 

following: 326 IAC 8–3–1, 

‘‘Applicability and exemptions’’; 326 

IAC 8–3–2, ‘‘Cold cleaner degreaser 

control equipment and operating 

requirements’’; 326 IAC 8–3–3, ‘‘Open 

top vapor degreaser operation’’; 326 IAC 

8–3–4, ‘‘Conveyorized degreaser control 

equipment and operating 

requirements’’; and 326 IAC 8–3–8, 

‘‘Material requirements for cold cleaner 

degreasers’’. 

Indiana’s July 14, 2021, submission, 

included a previous version of 326 IAC 

8–3–1, effective on June 9, 2021. EPA 

found concerns with that version of 326 

IAC 8–3–1(a)(1) as it added qualifying 

language so that the rules would only 

apply to sources ‘‘with the potential to 

emit VOC emissions of greater than or 

equal to fifteen (15) pounds per day.’’ 

This would constitute a relaxation of the 

Clean Air Act (CAA) requirement for 

VOC reasonably available control 

technology.1

On January 23, 2023, Indiana 

submitted a revised version of 326 IAC 

8–3–1, effective January 4, 2023, which 

removed the exemption language from 

326 IAC 8–3–1(a)(1). 

Indiana’s current SIP VOC rules 

require sources operating cold cleaning 

degreasers to, among other things, use 

low vapor pressure solvent, not to 

exceed 1 millimeter of mercury (mm Hg) 

at 20 degrees Celsius, for cleaning or 

degreasing machine parts. These low 

vapor pressure solvents do not work 

well for some industries. These rules 

also allow sources to operate control 

systems that demonstrate equivalent or 

better emissions control with approval 

from both Indiana and EPA. 

Indiana revised the control 

requirements for sources that use a 

solvent with a vapor pressure exceeding 

1 mm Hg in 326 IAC 8–3–3, 326 IAC 8– 

3–4, and 326 IAC 8–3–8. The revised 

rules require VOC emission control with 

a capture efficiency of at least 90 

percent. The control device must also 

either have at least a 90 percent 

destruction efficiency or have a VOC 

emission outlet concentration of less 

than 50 parts per million by volume. 

Indiana’s rules also require compliance 

procedures. The changes replace the 

previously approved provision allowing 

an alternate VOC emission control 

system with approval of both Indiana 

and EPA in 326 IAC 8–3–3 and 326 IAC 

8–3–4. This VOC control system 

requirement is an additional option in 

326 IAC 8–3–8. 

Indiana noted that, for some 

companies, the use of low vapor 

pressure solvents under 1 mm Hg 

results in poor performance and solvent 

contamination. Such sources cannot 

recycle the solvent because of the 

potential contamination. Such sources 

will thus often hand-clean machine 

parts, which results in all the solvent 

evaporating and thus being emitted into 

the air. Indiana further noted that handcleaning also produces a large amount 

of material that usually must be 

managed as hazardous waste, as the rags 

are contaminated with solvent and ink. 

Instead, the revised rules set parameters 

for control systems that specify standard 

VOC capture and control requirements 

for all users, which are expected to 

reduce the amount of solvent used and 

the amount of hazardous waste 

generated. 


lotter on DSK11XQN23PROD with PROPOSALS1