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[Federal Register Volume 88, Number 167 (Wednesday, August 30, 2023)]
[Proposed Rules]
[Pages 59825-59834]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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

[[Page 59826]]

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 (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: 
[email protected].
    General and technical inquiries: Donald Klienback, OSHA Directorate 
of Construction, telephone: (202) 693-2020; 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

[[Page 59827]]

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

[[Page 59828]]

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

[[Page 59829]]

`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

[[Page 59830]]

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

[[Page 59831]]

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

[[Page 59832]]

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.

[[Page 59833]]

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

[[Page 59834]]

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
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