22558 Federal Register / Vol. 89, No. 63 / Monday, April 1, 2024 / Rules and Regulations 

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: Final rule. 

SUMMARY: In this final rule, OSHA is 

amending 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, in the judgment 

of the CSHO, good cause has been 

shown why they are reasonably 

necessary to aid in the inspection. In the 

final rule, OSHA also clarified that a 

third party may be reasonably necessary 

because of their relevant knowledge, 

skills, or experience with hazards or 

conditions in the workplace or similar 

workplaces, or language or 

communication skills. OSHA concluded 

that these clarifications aid OSHA’s 

workplace inspections by better 

enabling employees to select 

representative(s) 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. 

DATES: 

Effective date: This final rule is 

effective on May 31, 2024. 

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) 

693–2350 (TDY number 877–889–5627) 

for assistance in locating docket 

submissions. 

When citing exhibits in the docket in 

this final rule, OSHA includes the term 

‘‘Document ID’’ followed by the last four 

digits of the Document ID number. 

Citations also include, if applicable, 

page numbers (designated ‘‘p.’’), and in 

a limited number of cases a footnote 

number (designated ‘‘Fn.’’). In a citation 

that contains two or more Document ID 

numbers, the Document ID numbers are 

separated by semi-colons (e.g., 0001; 

0002). 

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: Scott 

Ketcham, OSHA Directorate of 

Construction, telephone: (202) 693– 

2020; email: ketcham.scott@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 the Rule 

A. The Need for and Benefits of ThirdParty Representation 

1. Comments Supporting Third-Party 

Representation 

2. Comments Opposed to Third-Party 

Representation 

3. Conclusion on the Need for and Benefits 

of Third-Party Representatives 

B. The ‘‘Good Cause’’ and ‘‘Reasonably 

Necessary’’ Requirement 

1. Comments That Supported Removing 

the CSHO’s ‘‘Good Cause’’ and 

‘‘Reasonably Necessary’’ Determination 

Requirement in Some Form 

2. Comments That Generally Supported 

Retaining the Existing ‘‘Good Cause’’ and 

‘‘Reasonably Necessary’’ Requirement 

and Opposed the NPRM’s Alternatives 

3. Conclusion on the ‘‘Good Cause’’ and 

‘‘Reasonably Necessary’’ Requirement 

C. Role of the Employee Representative in 

the Inspection 

D. Constitutional Issues 

1. First Amendment Issues 

2. Fourth Amendment Issues 

3. Fifth Amendment Issues 

4. Due Process Issues 

5. Tenth Amendment Issues 

E. National Labor Relations Act and Other 

Labor-Related Comments 

F. Administrative Issues 

1. Administrative Procedure Act 

a. Consistency With the OSH Act 

b. Consistency With Other OSHA 

Regulations 

c. Basis for the Rule 

d. Specificity of the Rule 

2. Public Hearing 

G. Practical and Logistical Issues 

H. Liability Issues 

I. Other Issues 

V. Final Economic Analysis and Regulatory 

Flexibility Act Certification 

A. Introduction 

B. Costs 

1. Rule Familiarization 

2. Training 

3. Providing PPE 

4. Policy Development, Revisions, and 

Planning 

5. Legal Advice and Consultations 

6. Insurance and Liability Costs 

7. Protecting Trade Secrets and 

Confidential Business Information 

8. Hiring Experts 

9. Costs to State Plan States 

10. Societal Costs 

C. Benefits 

D. Regulatory Flexibility Certification 

E. Small Business Regulatory Enforcement 

Fairness Act 

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. List of Subjects 

XIII. Authority and Signature 

I. Executive Summary 

Since the Occupational Safety and 

Health Act of 1970 (OSH Act or Act) 

was passed in 1970, section 8(e) of the 

OSH Act has required that, subject to 

regulations issued by the Secretary of 

Labor (via OSHA), a representative of 

the employer and a representative 

authorized by employees ‘‘shall’’ each 

have the opportunity to accompany 

OSHA during the physical inspection of 

the workplace (i.e., ‘‘the walkaround’’) 

for the purpose of aiding OSHA’s 

inspection. One of section 8(e)’s 

implementing regulations, at 29 CFR 

1903.8(c), provided that a representative 

authorized by employees ‘‘shall be an 

employee(s) of the employer.’’ However, 

that regulation also created an exception 

for ‘‘a third party who is not an 

employee of the employer’’ when, ‘‘in 

the judgment of the Compliance Safety 

and Health Officer, good cause has been 

shown’’ why the third party was 

‘‘reasonably necessary to the conduct of 

an effective and thorough physical 

inspection of the workplace. . . .’’ 29 

CFR 1903.8(c) (1971). The regulation 

pointed to two non-exhaustive 

examples—a safety engineer and an 

industrial hygienist. 

While OSHA has long permitted 

employee representatives to be third 

parties pursuant to 29 CFR 1903.8(c), in 


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2017, a district court concluded that 

interpretation was not consistent with 

the regulation. Because the first 

sentence of 1903.8(c) explicitly stated 

that employee representatives ‘‘shall be 

employees of the employer,’’ it rejected 

OSHA’s interpretation as ‘‘flatly 

contradict[ing]’’ the regulation. Nat’l 

Fed’n of Indep. Bus. v. Dougherty, No. 

3:16–CV–2568–D, 2017 WL 1194666, at 

*11 (N.D. Tex. Feb. 3, 2017) (NFIB v. 

Dougherty). However, the district court 

also recognized that OSHA’s 

interpretation that third parties could be 

employee representatives was a 

‘‘persuasive and valid’’ reading of 

section 8(e) of the OSH 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. 

This final rule has a narrow purpose 

and makes two changes to 1903.8(c). 

First, in response to the district court’s 

decision, it clarifies that consistent with 

Section 8(e) of the OSH Act, employee 

representatives may either be an 

employee of the employer or a third 

party. Second, consistent with OSHA’s 

longstanding practice, it clarifies that a 

third-party representative authorized by 

employees may have a variety of skills, 

knowledge, or experience that could aid 

the CSHO’s inspection. The latter 

revision clarifies that 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 (industrial hygienist 

or safety engineer) provided in the prior 

regulatory text. OSHA has retained the 

longstanding requirement in 1903.8(c) 

that third-party representatives may 

accompany the CSHO when good cause 

has been shown why they are 

reasonably necessary to the conduct of 

an effective and thorough physical 

inspection of the workplace. 

These revisions to 1903.8(c) do not 

change the CSHO’s authority to 

determine whether good cause has been 

shown why an individual is reasonably 

necessary to the conduct of an effective 

and thorough physical inspection of the 

workplace. See 29 CFR 1903.8(b). The 

revisions also do not affect other 

provisions of section 1903.8, such as the 

CSHO’s authority to deny the right of 

accompaniment to any individual 

whose conduct interferes with a fair and 

orderly inspection (29 CFR 1903.8(d)), 

the requirement that the conduct of 

inspections preclude unreasonable 

disruption of the operations of the 

employer’s establishment (29 CFR 

1903.7(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)). 

As discussed below, OSHA’s 

revisions will better align the language 

in 1903.8(c) with the language and 

purpose in section 8(e) of the OSH Act, 

29 U.S.C. 657(e). By clarifying who can 

serve as employees’ walkaround 

representative, the rule facilitates 

improved employee representation 

during OSHA inspections. Employee 

representation is vital to thorough and 

effective OSHA inspections, and OSHA 

finds these changes will improve the 

effectiveness of OSHA inspections and 

benefit employees’ health and safety. 

OSHA determined that the rule 

appropriately recognizes employees’ 

statutory right to a walkaround 

representative and OSHA’s need for 

thorough and effective inspections 

while still protecting employers’ privacy 

and property interests. Additionally, 

OSHA has concluded that this rule will 

not increase employers’ costs or 

compliance burdens. 

II. Background 

A. The OSH Act and OSHA’s Inspection 

Authority 

The OSH Act was enacted ‘‘to assure 

so far as possible every working [person] 

in the Nation safe and healthful working 

conditions and to preserve our human 

resources’’ (29 U.S.C. 651(b)). To 

effectuate the Act’s purpose, Congress 

authorized the Secretary of Labor to 

promulgate occupational safety and 

health standards (see 29 U.S.C. 655). 

The Act also grants broad authority to 

the Secretary to promulgate rules and 

regulations related to inspections, 

investigations, and recordkeeping (see 

29 U.S.C. 657). 

Section 8 of the OSH Act states that 

OSHA’s inspection authority is essential 

to carrying out the Act’s purposes and 

provides that employers must give 

OSHA access to inspect worksites 

‘‘without delay’’ (29 U.S.C. 657(a)). 

Section 8(e) of the Act provides 

specifically that ‘‘[s]ubject to regulations 

issued by the Secretary, a representative 

of the employer and a representative 

authorized by [its] employees shall be 

given an opportunity to accompany [the 

CSHO] for the purpose of aiding such 

inspection’’ (29 U.S.C. 657(e)). Section 

8(g) further authorizes the Secretary to 

promulgate such rules and regulations 

as the agency deems necessary to carry 

out the agency’s responsibilities under 

this Act, including rules and regulations 

dealing with the inspection of an 

employer’s establishment (29 U.S.C. 

657(g)). 

B. Regulatory History and Interpretive 

Guidance 

On May 5, 1971, OSHA proposed 

rules and general policies for the 

enforcement of the inspection, citation, 

and penalty provisions of the OSH Act. 

(36 FR 8376, May 5, 1971). OSHA 

subsequently issued regulations for 

inspections, citations, and proposed 

penalties at 29 CFR part 1903. (36 FR 

17850, Sept. 4, 1971). 

The OSH Act and 29 CFR part 1903 

provide CSHOs with significant 

authority to conduct OSHA’s 

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 accompany 

the CSHO during 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 the right of accompaniment if 

their 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 

rulemaking, authorizes the CSHO to 

determine whether third-party 

representatives would aid OSHA’s 

physical inspection of a workplace. 

Prior to this rulemaking, section 

1903.8(c) provided: ‘‘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) (1971). 

This paragraph, which primarily 

addresses employer and employee 

representatives during inspections, had 

not been revised since it was adopted in 

1971. 


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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 (Document ID 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 (Document ID 0002). 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’’ (Document 

ID 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 (Document ID 

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 allows 

walkaround participation by an 

employee representative who is not an 

employee of the employer when, in the 

judgment of the OSHA compliance 

officer, such representative is 

‘reasonably necessary to the conduct of 

an effective and thorough physical 

inspection’ ’’ (Document ID 0003). 

OSHA explained that such 

representatives are reasonably necessary 

when they will make a positive 

contribution to a thorough and effective 

inspection (Document ID 0003). 

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 during an inspection. 

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 (Document ID 0004). The FOM 

explained that ‘‘[i]t is OSHA’s view that 

representatives are ‘reasonably 

necessary’, when they make a positive 

contribution to a thorough and effective 

inspection’’ and recognized that there 

may be cases in which workers without 

a certified or recognized bargaining 

agent would authorize a third party to 

represent the workers on the inspection 

(Document ID 0004). 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’’ (Document ID 0004) 

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. NFIB v. Dougherty, 

2017 WL 1194666. 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 ‘‘flatly contradicts a prior 

legislative rule as to whether the 

employee representative must himself 

be an employee.’’ 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 (Document ID 0006). OSHA also 

revised the Field Operations Manual to 

remove language that incorporated the 

Sallman letter (CPL 02–00–163 (09/13/ 

2019), Document ID 11544). 

On August 30, 2023, OSHA published 

a notice proposing revisions of 29 CFR 

1903.8(c) to clarify who may serve as a 

representative authorized by employees 

for the purpose of OSHA’s walkaround 

inspection (88 FR 59825). 

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. See 29 U.S.C. 652(8) (an 

occupational safety and health standard 

‘‘requires conditions, or the adoption or 

use of one or more practices, means, 

methods, operations, or processes, 

reasonably necessary or appropriate to 

provide safe or healthful employment 

and places of employment.’’). In 

contrast, a ‘‘regulation’’ is issued 

pursuant to general rulemaking 

authority found, inter alia, in section 8 

of the Act, and establishes an 

‘‘enforcement or detection procedure 

designed to further the goals of the Act 

generally.’’ Workplace Health and 

Safety Council v. Reich, 56 F. 3d 1465, 

1468 (D.C. Cir. 1995). Although the U.S. 

Chamber of Commerce (Chamber of 

Commerce) suggested that this rule 

should be subject to the requirement 

that ‘‘occupational safety and health 

standards’’ be ‘‘reasonably necessary’’ 


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under section 3(8) of the OSH Act, 

(Document 1952, p. 2), inspectionrelated requirements, such as the 

requirements in 1903.8(c), are properly 

characterized as regulations because 

they do not require ‘‘conditions, or the 

adoption or use of one or more 

practices, means, methods, operations, 

or processes, reasonably necessary or 

appropriate to provide safe or healthful 

employment and places of 

employment.’’ 29 U.S.C. 652(8). 

In this rulemaking, OSHA is revising 

its existing regulation at 1903.8(c) 

pursuant to OSHA’s authority under 

section 8 of the OSH Act. See 29 U.S.C. 

657(e) (describing the Secretary’s 

authority to promulgate regulations 

related to employer and employee 

representation during an inspection); 

657(g)(2) (describing the Secretary of 

Labor’s and the Secretary of Health and 

Human Services’ authority to ‘‘each 

prescribe such rules and regulations as 

[they] may deem necessary to carry out 

their responsibilities under this Act, 

including rules and regulations dealing 

with the inspection of an employer’s 

establishment’’). This rule clarifies 

employees’ statutory right to a 

walkaround representative under 

section 8 of the OSH Act and does not 

impose any new substantive inspectionrelated requirements. 

Several provisions of the OSH Act 

underscore OSHA’s authority to 

promulgate inspection-related 

requirements, including those that relate 

to the rights of employees to have an 

authorized representative accompany 

OSHA during a physical inspection of 

their workplace. Section 2 of the OSH 

Act states that the Act’s express purpose 

is ‘‘to assure so far as possible every 

working man and woman in the Nation 

safe and healthful working conditions.’’ 

29 U.S.C. 651(b). To effectuate that 

purpose, Congress provided OSHA with 

broad authority under section 8 to 

conduct inspections of workplaces and 

records, to require the attendance and 

testimony of witnesses, and to require 

the production of evidence. See 

generally 29 U.S.C. 657. OSHA’s ability 

to carry out workplace inspections is 

critical to the OSH Act’s entire 

enforcement scheme. See 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. See 29 U.S.C. 667(c)(3). 

In addition to granting OSHA broad 

authority to conduct 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 the 

presence in the inspection of a 

representative authorized by employees 

would cause an undue burden on 

employers or be used as ‘‘an effort to 

ferment labor unrest.’’ See Comments of 

Congressperson William J. Scherle of 

Iowa, 92d Cong. 1st Sess., reprinted in 

Legislative History of the Occupational 

Safety and Health Act of 1970, at 1224 

(Comm. Print 1971); see also Comments 

of Congressperson Michel of Illinois, id. 

at 1057. Similarly, Senator Peter 

Dominick of Colorado proposed an 

amendment to the Senate bill that 

would have removed the right of a 

representative authorized by the 

employees to accompany the CSHO and 

instead would have only required that 

the CSHO consult with employees or 

their representative at ‘‘a reasonable 

time.’’ Proposed Amendment No. 1056, 

92d Cong. 1st Sess., reprinted in 

Legislative History of the Occupational 

Safety and Health Act of 1970, at 370 

(Comm. Print 1971). One of the stated 

reasons for the proposed amendment 

was a concern that ‘‘[t]he mandatory 

‘walk-around’ provisions now in the bill 

could . . . lead to ‘collective bargaining’ 

sessions during the course of the 

inspection and could therefore interfere 

both with the inspection and the 

employer’s operations.’’ Id. at 372. This 

proposed amendment was rejected, and 

section 8(e) of the OSH Act reflects 

Congress’ considered judgment of the 

best way to strike the balance between 

employers’ concerns about workplace 

disruptions and the critical importance 

of employee representation in the 

inspection process. 

And while section 8(e) underscores 

the importance of employer and 

employee representation in OSHA’s 

workplace inspection, the Act places 

only one criterion on who can be an 

employer or employee representative 

and that is that the representative ‘‘aid[ ] 

such inspection.’’ 29 U.S.C. 657(e). It 

does not state that the representative 

must be an employee of the employer. 

See 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[.]’’); NFIB 

v. Dougherty, 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 a 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 a representative 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.’’). 

The National Retail Federation (NRF) 

argued that the ‘‘Saxbe Amendment’’ to 

the OSH Act demonstrates that an 

‘‘authorized’’ representative must be 

‘‘one selected through the NLRA 

selection process’’ (Document ID 1776, 

p. 8). The Saxbe Amendment sought to 

‘‘clarif[y] and protect[ ] from abuse’’ the 

right of accompaniment by adding 

‘‘provisions making such right clearly 

subject to regulations of the Secretary, 

defining the purpose of such 

accompaniments as aid of the 

inspection, and extending mandatory 

consultation rights to a reasonable 


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number of employees where there is no 

‘authorized’ representative of 

employees.’’ 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 197–98 (Comm. Print. 1971). 

NRF points to the reason given for this 

amendment, which was to avoid 

scenarios in which the Secretary would 

have to ‘‘resolve union organizing issues 

which have no relationship to this 

legislation.’’ (Document ID 1776, p. 9) 

(citing 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 198 

(Comm. Print 1971)). 

This reference to union organizing 

simply reflects Congress’s 

acknowledgement that in some 

workplaces there may be disputes 

concerning union representation. 

However, it cannot be read to deny 

accompaniment rights to employees in 

non-union workplaces. 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) (‘‘The bill provides 

that union representatives or any 

employee representative be allowed to 

accompany inspectors on their plant 

tours.’’ (emphasis added)). Moreover, 

the concern raised about union 

organizing has been addressed both 

through OSHA policy and regulations. 

As discussed in Section IV.E, National 

Labor Relations Act and Other LaborRelated Comments, it is OSHA’s 

longstanding policy to avoid being 

interjected into labor relations disputes. 

See also OSHA Field Operations 

Manual, Chapter 3, Sections IV.G–H 

(‘‘Under no circumstances are CSHOs to 

become involved in a worksite dispute 

involving labor management issues or 

interpretation of collective bargaining 

agreements’’). OSHA’s regulations also 

provide that the inspection shall 

‘‘preclude unreasonable disruption of 

the employer’s establishment,’’ 29 CFR 

1903.7(d), and that the CSHO may deny 

the right of accompaniment to any 

person whose conduct ‘‘interferes with 

a fair and orderly inspection.’’ 29 CFR 

1903.8(d). Further, where there is a 

dispute that prevents the CSHO from 

determining with reasonable certainty 

who is the authorized employee 

representative, the CSHO will consult 

with a reasonable number of employees 

concerning matters of safety and health 

in the workplace. 29 CFR 1903.8(b). 

This final rule does not infringe on 

employer’s Fourth Amendment rights. 

The Fourth Amendment protects 

employers against ‘‘unreasonable 

searches and seizures,’’ and, absent 

consent from an employer, OSHA is 

required to obtain a warrant to conduct 

a physical inspection of their 

workplace. See Marshall v. Barlow’s 

Inc., 436 U.S. 307 (1978). Where the 

government has sought and obtained a 

search warrant supported by probable 

cause and acted within its scope, the 

resulting search is presumptively 

reasonable under the Fourth 

Amendment. See Sims v. Labowitz, 885 

F.3d 254, 268 (4th Cir. 2018). ‘‘And for 

the search to be reasonable, it does not 

have to be conducted flawlessly nor by 

the least intrusive means.’’ Id. (citing 

Skinner v. Ry. Labor Executives’ Ass’n, 

489 U.S. 602, 629 n.9 (1989)). This rule 

comports with the Fourth Amendment’s 

prohibition against ‘‘unreasonable 

searches and seizures’’ because all 

OSHA inspections, including those in 

which employees authorize a thirdparty walkaround representative under 

this final rule, will be carried out either 

with the employer’s consent or pursuant 

to a duly issued inspection warrant. 

Furthermore, 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), these 

inspections must be carried out ‘‘during 

regular working hours and at other 

reasonable times, and within reasonable 

limits and in a reasonable manner.’’ Id. 

at 657(a)(2); see also 29 CFR 1903.7(d) 

(‘‘The conduct of inspections shall be 

such as to preclude unreasonable 

disruption of the operations of the 

employer’s establishment.’’). 

Some commenters argued that 

allowing a third-party employee 

representative to accompany OSHA 

during the walkaround inspection 

would make OSHA’s search 

unreasonable (see, e.g., Document ID 

1976, p. 19). However, as discussed in 

Section IV.D.2, Fourth Amendment 

Issues, the mere presence of a thirdparty employee representative on the 

employer’s premises does not render 

OSHA’s inspection unreasonable for 

Fourth Amendment purposes. See Bills 

v. Aseltine, 958 F.2d 697, 703 (6th Cir. 

1992) (noting that a third party’s entry 

onto subject’s private property may be 

‘‘justified if he had been present to 

assist the local officers’’); see also 

Wilson v. Layne, 526 U.S. 603 (1999) 

(holding that bringing members of the 

media into a home during the execution 

of a search warrant violated the Fourth 

Amendment when the presence of the 

third parties in the home was not in aid 

of the execution of the warrant). 

Additionally, contrary to the concerns 

expressed by some commenters opposed 

to the rule, this rulemaking does not 

grant third parties ‘‘unfettered access’’ 

to an employer’s private property (see, 

e.g., Document ID 0040, p. 4; 0045; 

0235, p. 2; 0528; 1757, p. 3; 1762, p. 3; 

1974, p. 2; 9316). Rather, as explained 

in Sections IV.A, IV.C, and IV.D.II, the 

role of the third-party representative is 

limited to aiding the inspection; they 

are only permitted to accompany the 

CSHO, and they may not stray from the 

CSHO or conduct their own searches. 

This final rule preserves the 

requirement that the CSHO must first 

determine ‘‘good cause has been 

shown’’ why the accompaniment by a 

third party is ‘‘reasonably necessary to 

the conduct of an effective and thorough 

physical inspection of the workplace.’’ 

29 CFR 1903.8(c). And, under OSHA’s 

existing regulations, the CSHO is 

authorized to deny the right of 

accompaniment to any person whose 

conduct interferes with a fair and 

orderly inspection. 29 CFR 1903.8(d). 

Accordingly, OSHA inspections 

conducted pursuant to this rule will 

comport with the Fourth Amendment’s 

reasonableness requirement because the 

role of the third-party employee 

representative will be limited to aiding 

OSHA’s inspection. Indeed, the CSHO 

will ensure the inspection is conducted 

in a reasonable manner per section 

8(a)(2) of the Act and 29 CFR 1903.3(a). 

See Matter of Establishment Inspection 

of Caterpillar Inc., 55 F.3d at 339 

(‘‘[T]he Act and its regulations establish 

a number of administrative safeguards 

that adequately protect the rights of 

employers and limit the possibility that 

private participation in an inspection 

will result in harm to the employer.’’). 

Moreover, 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. Under 

the Fifth Amendment’s Takings Clause, 

the government must provide just 

compensation to a property owner when 

the government physically acquires 

private property for public use. See 

Tahoe-Sierra Pres. Council, Inc. v. 

Tahoe Reg’l Plan. Agency, 535 U.S. 302, 

321 (2002). However, the Supreme 

Court has recognized that ‘‘[b]ecause a 

property owner traditionally [has] 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.’’ Cedar Point Nursery 

v. Hassid, 141 S. Ct. 2063, 2079 (2021). 


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Nonetheless, some commenters 

argued that the rule would affect an 

unconstitutional per se taking under 

Cedar Point Nursery because it would 

grant third parties access to the 

employer’s property (Document ID 

0043, p. 2–3; 1952, p. 8–9; 1976, p. 18– 

19). As discussed more fully in Section 

IV.D.3, Fifth Amendment Issues, this 

rule does not constitute a per se taking 

because the presence of third-party 

employee representatives on the 

employer’s property under this rule will 

be limited to accompanying the CSHO 

during a lawful physical inspection of 

the workplace and their sole purpose for 

being on the employer’s premises will 

be to aid the inspection. See 29 CFR 

1903.7(d), 1903.8(b); see also Matter of 

Establishment Inspection of Caterpillar 

Inc., 55 F.3d at 339. 

Based on the foregoing, OSHA has 

determined that it has legal authority for 

its revisions to OSHA’s existing 

regulation at 29 CFR 1903.8(c). 

IV. Summary and Explanation 

On August 30, 2023, OSHA proposed 

amending its existing rule for the 

Representatives of Employers and 

Employees at 29 CFR 1903.8(c) to clarify 

who may serve as a representative 

authorized by employees during 

OSHA’s walkaround. 88 FR 59825. 

OSHA provided sixty days for public 

comment and subsequently extended 

the comment period for an additional 

two weeks. 88 FR 71329. By the end of 

the extended comment period, OSHA 

had received 11,529 timely comments 

on the proposed rule that were posted 

to the docket. 

Prior to this rulemaking, the rule 

stated that a representative authorized 

by employees ‘‘shall be an employee(s) 

of the employer.’’ However, that 

regulation also created an exception for 

‘‘a third party who is not an employee 

of the employer’’ when, ‘‘in the 

judgment of the Compliance Safety and 

Health Officer, good cause has been 

shown’’ why the third party was 

‘‘reasonably necessary to the conduct of 

an effective and thorough physical 

inspection of the workplace. . . .’’ 29 

CFR 1903.8(c) (1971). The regulation 

also listed two non-exhaustive examples 

of such third parties—a safety engineer 

and an industrial hygienist. 

OSHA proposed two revisions of 29 

CFR 1903.8(c). First, the agency 

proposed to clarify that the 

representative(s) authorized by 

employees may be an employee of the 

employer or a third party. Second, 

OSHA proposed 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 was 

intended to clarify 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 prior 

regulatory text: Industrial Hygienist or 

Safety Engineer. 

OSHA noted in the Notice of 

Proposed Rulemaking (NPRM) that the 

proposed revisions to section 1903.8(c) 

would 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 would not affect other 

provisions of 29 CFR part 1903 that 

limit participation in walkaround 

inspections, such as the CSHO’s 

authority to prevent an individual from 

accompanying the CSHO on 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)). As 

always, the conduct of OSHA’s 

inspections must preclude unreasonable 

disruption of the operations of 

employer’s establishment. See 29 CFR 

1903.7(d). 

OSHA sought public comment on all 

aspects of the rule, including why 

employees may wish to be represented 

by a third-party representative and 

examples of third-party representatives 

who have been or could be reasonably 

necessary to the conduct of an effective 

and thorough walkaround inspection. 

OSHA also sought examples and 

information about any other unique 

skills that have been helpful or added 

safety and health value to OSHA’s 

inspection. Additionally, OSHA 

solicited input on regulatory options, 

such as whether the agency should 

maintain the ‘‘good cause’’ and 

‘‘reasonably necessary’’ requirement. 

OSHA received comments in favor of 

the rule and opposed to it, ranging from 

requests to withdraw the rule entirely to 

criticism that the rule does not go far 

enough to ensure that employees are 

able to select a representative of their 

choice. Many organizations representing 

employers contended that the rule 

represents a significant change to 

OSHA’s procedures and will facilitate 

union organizing. Among other 

arguments, these organizations generally 

argued that the rule: (1) conflicts with 

the OSH Act and existing OSHA 

regulations; (2) infringes on employers’ 

Constitutional rights, particularly 

property rights; (3) imposes substantial 

costs, particularly for small businesses; 

and (4) will be difficult for OSHA to 

administer. Conversely, organizations 

representing employees praised the rule 

for encouraging employee 

representation, ensuring thorough and 

effective inspections, and promoting 

workers’ safety and health. Some 

organizations representing employees 

also argued that OSHA should eliminate 

the ‘‘good cause’’ and ‘‘reasonably 

necessary’’ requirement for third parties. 

OSHA considered all issues raised, 

and, as explained in depth below, 

determined that revising 1903.8(c) more 

clearly aligns with the language and 

purpose of section 8(e) of the OSH Act, 

29 U.S.C. 657(e). Moreover, OSHA’s 

revisions to 1903.8(c) better ensure 

employee involvement in an OSHA 

inspection, which is a critical 

component to conducting an effective 

and thorough inspection. As explained 

further below, OSHA has decided to 

retain the existing ‘‘good cause’’ and 

‘‘reasonably necessary’’ requirement in 

the final rule. Additionally, because of 

commenter concerns that the use of the 

word ‘‘participation’’ in the NPRM 

suggested the employee representative 

had a role in conducting OSHA’s 

inspection, OSHA removed that term in 

favor of ‘‘accompaniment’’ in the final 

rule. 

A. The Need for and Benefits of ThirdParty Representation 

The text of the OSH Act provides that, 

‘‘[s]ubject to regulations issued by the 

Secretary, a representative of the 

employer and a representative 

authorized by his employees shall be 

given an opportunity to accompany the 

Secretary or his authorized 

representative during’’ physical 

workplace inspections. 29 U.S.C. 657(e) 

(emphasis added). There is nothing in 

the OSH Act to suggest that employee 

(or employer) representatives must be 

employees of the employer. The only 

criterion the statute imposes is that the 

representative will ‘‘aid[ ] such 

inspection.’’ In the NPRM, OSHA 

explained that, based on its experience, 

there are a variety of third parties who 

might serve as representatives 

authorized by employees who could aid 

the OSHA walkaround inspection. 88 

FR at 59829–30. As an example, OSHA 

highlighted an inspection where 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 


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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 could 

facilitate communication with the 

CSHO enabled OSHA to conduct 

numerous worker interviews and better 

investigate the workplace conditions. 88 

FR 59830. 

In the NPRM, OSHA sought public 

comment on any other examples where 

third parties benefitted OSHA 

inspection, the reasons why employees 

may desire a third-party representative, 

and any data or anecdotal examples of 

individuals who may serve as third 

parties, among other questions. In 

response, many commenters, both for 

and against the proposed rule, 

commented on the need for third-party 

employee representatives and the 

benefits they bring to OSHA’s 

inspections. 

After reviewing the comments, as 

summarized below, OSHA has 

concluded 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, 

but is not limited to, knowledge, skills, 

or experience with particular hazards or 

conditions in the workplace or similar 

workplaces, as well as any relevant 

language or communication skills a 

representative may have to facilitate 

better communication between workers 

and the CSHO. OSHA has therefore 

deleted the two enumerated examples in 

the current regulation—industrial 

hygienists and safety engineers—to 

clarify that different types of individuals 

may be reasonably necessary to OSHA’s 

inspection. These revisions do not 

preclude an industrial hygienist or 

safety engineer from serving as an 

employee representative; instead, the 

revisions more properly focus the 

CSHO’s determination on factors such 

as the knowledge, skills, or experience 

of the third party rather than the third 

party’s professional discipline. 88 FR 

59829. 

1. Comments Supporting Third-Party 

Representation 

OSHA received numerous comments 

demonstrating the importance and 

benefits of third-party representation— 

many of which included real-life 

examples of how third-party 

representatives have assisted OSHA 

over the years. Commenters supporting 

the rule emphasized the benefits of third 

parties’ technical and/or subject matter 

expertise. They also appreciated 

OSHA’s effort to clarify that various 

types of third parties, and not just those 

with the above expertise, can aid 

OSHA’s inspections based on a variety 

of knowledge, skills, or experience (see, 

e.g., Document ID 1972, p. 3–4). As one 

commenter noted, third-party 

representatives need not be ‘‘certified 

expert[s]’’ to meaningfully contribute to 

an inspection (Document ID 0022). 

In particular, commenters supporting 

third-party representation pointed out 

that: (1) third parties can possess 

helpful technical and/or subject-matter 

expertise with hazards, industries, and 

OSHA’s investigation process; (2) third 

parties can provide critical language 

skills and related cultural competencies; 

(3) third parties can facilitate employee 

cooperation by increasing employees’ 

trust in the inspection process; (4) thirdparty representation greatly benefits 

inspections involving multi-employer 

worksites; and (5) third-party 

representation empowers workers and 

appropriately balances the rights and 

needs of all parties during the 

inspection process. 

First, numerous commenters 

emphasized that third parties can 

possess helpful technical and/or 

subject-matter expertise with particular 

hazards, industries, or the investigation 

process (see, e.g., Document ID 1753, p. 

5–7). The United Steelworkers Union 

(USW) noted that it has brought in 

technical experts to serve as designated 

employee representatives in OSHA 

inspections involving issues related to 

combustible dust, combustion safety, 

electrical safety, and occupational 

medicine (Document ID 1958, p. 5). The 

Amalgamated Transit Union also stated 

that its union officials, including those 

in the Health and Safety Department, 

have transit safety and health 

knowledge that could be relevant to an 

OSHA investigation, such as technical 

expertise regarding transit vehicle 

designs, transit maintenance equipment, 

and a ‘‘big-picture view’’ of the hazard; 

it also pointed to union officials’ ability 

to assemble workers for interviews, 

identify relevant evidence, and bring a 

level of familiarity and comfort in 

speaking with government agents that 

employees might lack (Document ID 

1951, p. 1–2). 

Similarly, the USW provided 

examples of where its familiarity with 

OSHA inspections was beneficial. In 

one such example involving an 

explosion and fatalities at a USWrepresented workplace, a USW safety 

representative from the union’s 

headquarters traveled to the site to assist 

(Document ID 1958, p. 4–5). Because 

access to the area at issue was initially 

restricted to OSHA and others, the 

safety representative assisted OSHA 

with determining who should be 

interviewed and what information 

OSHA should request from the 

employer; the third-party union 

representative was also needed to help 

the local union and OSHA obtain 

employees’ involvement during 

interviews and the walkaround 

(Document ID 1958, p. 4–5). 

In addition, the USW commented that 

‘‘[w]orkplaces that do not have a 

collective bargaining representative may 

be especially vulnerable to safety 

hazards, and employees in these 

workplaces benefit from the expertise 

and advocacy experience that a 

community group, safety expert, or 

labor organization can provide in a 

walkaround inspection’’ (Document ID 

1958, p. 3). Farmworker Justice agreed, 

recognizing that third parties such as 

union representatives and worker 

advocates have industry-specific or 

workplace safety expertise that they can 

use to help workers identify and 

communicate workplace safety concerns 

to OSHA (Document ID 1763, p. 3–4). 

Several commenters emphasized the 

benefits of third parties’ industryspecific expertise in particular. For 

example, the Utility Workers Union of 

America (UWUA) noted that, in recent 

years, the UWUA national union 

provided a walkaround representative 

in numerous incidents that ‘‘have 

proven the difference between a fair 

investigation and one that unfairly 

weighs in the employer’s balance’’ 

(Document ID 1761, p. 1). UWUA 

described one inspection in 

Pennsylvania involving the death of an 

overhead lineman who had been 

working with a crew operating a bucket 

truck when that truck unexpectedly 

rolled downhill and overturned in the 

road (Document ID 1761, p. 1). UWUA 

explained that the national union 

representative was able to inform the 

CSHO about technological and work 

practice changes in the industry, 

including the use of an inclinometer, 

that were not immediately apparent 

even to the workers themselves due to 

inadequate training (Document ID 1761, 

p. 1). OSHA’s inspection benefitted 

from the national union representative’s 

industry-specific expertise (Document 

ID 1761, p. 1). 

Similarly, the USW also highlighted 

an OSHA inspection that benefitted 


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1 Karen languages are spoken in parts of Burma 

and Thailand. 

from a third-party representative who 

had industry-specific expertise 

(Document ID 1958, p. 3). In that 

inspection, where a USW mechanic 

died in a flash fire involving a dust 

collection system, a USW safety 

representative from the union’s 

headquarters accompanied the CSHO 

along with local union representatives 

who had never been part of an OSHA 

inspection or a fatality investigation 

(Document ID 1958, p. 3). The USW 

safety representative’s experience in the 

industry, experience serving on one of 

the National Fire Protection Agency’s 

combustible dust committees, and 

experience with prior OSHA 

inspections and fatality investigations 

benefitted the inspection (Document ID 

1958, p. 3–4). According to the USW, 

the CSHO confirmed that the thirdparty’s assistance made the inspection 

more ‘‘through[ ] and complete’’ 

(Document ID 1958, p. 3). 

In the healthcare industry, one 

commenter, a former director of the 

safety and health program for the 

American Federation of State, County 

and Municipal Employees (AFSCME), 

provided examples of where this 

commenter was able to assist CSHOs 

during past inspections with hazards 

that were not well-known at the time 

(Document ID 1945, 2–3). This 

commenter stated that they were able to 

provide guidance to CSHOs regarding 

workplace violence and bloodborne 

pathogens and what similar facilities 

were doing to abate similar problems 

and hazards (Document ID 1945, p. 2– 

3). 

In addition, the International Alliance 

of Theatrical Stage Employees, Moving 

Picture Technicians, Artists and Allied 

Crafts of the United States, Its 

Territories and Canada, (‘‘IATSE’’) 

asserted that third-party representation 

can also benefit inspections in their 

industry, as ‘‘[t]erminology, specific job 

functions, equipment, and procedures 

might be unfamiliar to an industry 

outsider’’ (Document ID 1970, p. 1). As 

an example, IATSE explained that, if a 

worker was injured in a remote location 

during a motion picture production, a 

third-party walkaround representative 

could explain the industry practice of 

equipment rentals, camera placement, 

crew positions, and other industrystandard procedures (Document ID 

1970, p. 1). 

Several of these commenters 

explained that the expertise of third 

parties is helpful to OSHA because 

CSHOs cannot be expected to have 

knowledge or expertise with every 

industry, craft, task, hazard, occupation, 

or employer (Document ID 1969, p. 14; 

see also 1753, p. 5–7). Commenters 

noted that third parties can assist when 

hazards are hidden or not immediately 

apparent to the CSHO (see, e.g., 

Document ID 1753, p. 7). 

Second, many commenters, including 

the National Employment Law Project 

(NELP), also identified a need for thirdparty representatives with language 

skills when CSHOs interact with 

workers from a linguistic or other 

background with which the CSHO is 

unfamiliar (see, e.g., Document ID 1972, 

p. 4). Numerous commenters noted the 

importance of third-party 

representatives who can interpret for 

limited-English proficient workers (see, 

e.g., Document ID 0030; 0037; 0526, p. 

1–2; 1958, p. 2). For example, the USW 

explained that ‘‘employees can offer 

significantly more information when 

they can comfortably communicate in a 

language in which they are fluent’’ 

(Document ID 1958, p. 2). MassCOSH 

described the importance of having a 

‘‘respected, culturally and linguistically 

competent’’ employee representative to 

ensure the CSHO obtains information 

needed for a complete and thorough 

inspection (Document ID 1750, p. 3). 

MassCOSH provided an example where 

several Central American immigrant 

workers suffered from lead poisoning at 

a lead recycling facility in 

Massachusetts (Document ID 1750, p. 3). 

The CSHO did not speak Spanish and 

could not communicate with Spanishspeaking workers, and so was unable to 

identify areas of lead contamination 

(Document ID 1750, p. 3). Workers 

subsequently contacted MassCOSH, 

which contacted OSHA and provided a 

Spanish-speaking representative to 

accompany the CSHO on a second 

inspection (Document ID 1750, p. 3). 

The representative was able to facilitate 

communication between the CSHO and 

workers, who pointed the CSHO to the 

areas that were particularly 

contaminated with lead but were not 

easily found (Document ID 1750, p. 3). 

Similarly, Justice at Work described 

how a worker organization it 

collaborates with in Massachusetts, 

Centro Comunitario de Trabajadores 

(CCT), works with workers who face 

significant language barriers because 

many in the community do not speak 

English, and some are not fluent in 

Spanish and need K’iche’ interpretation 

(Document ID 1980, p. 2). Justice at 

Work noted that a CCT leader was 

selected by workers to assist OSHA 

during a fatality investigation several 

years ago and workers were 

‘‘immediately comfortable to see a 

member of their community there; they 

spoke freely with the CCT leader and 

pointed out the danger areas in the 

worksite’’ (Document ID 1980, p. 2). 

United Brotherhood of Carpenters and 

Joiners of America (UBC) explained that 

union representatives may be aware of 

languages spoken by a workforce in a 

specific geographic area and have the 

language skills necessary to 

communicate with these workers 

(Document ID 1753, p. 6–7). UBC 

further noted that when serving as a 

third-party representative, these union 

representatives can bring these skills to 

assist CSHOs who may lack such a 

familiarity with the languages spoken by 

workers in that specific geographic area, 

such as Polish in the Chicago-area 

(Document ID 1753, p. 6–7). Nebraska 

Appleseed, which partners with 

hundreds of immigrant community 

members in advocating for safer 

working conditions, explained that 

workers in meat and poultry processing 

facilities often speak Spanish, Somali, 

Karen,1 Vietnamese, and other 

languages not typically spoken by local 

OSHA staff (Document ID 1766, p. 1–3). 

Similarly, United Food and Commercial 

Workers (UFCW) explained that many 

union members struggle with language 

barriers, noting that in Nebraska and 

South Dakota, the immigrant population 

makes up over half the working staff 

(Document ID 1023, p. 3–4). Project 

WorkSAFE noted that, in Vermont, 

there is an increasing need to have 

individuals at a worksite who speak 

Spanish and English for translation 

purposes, but, in their experience, none 

of the CSHOs in Vermont OSHA speak 

Spanish (Document ID 0037). 

A third-party’s language skills can 

prevent situations ‘‘where employers or 

‘ad hoc’ interpreters are the go-betweens 

for the CSHO and the worker’’ 

(Document ID 0526, p. 2). Justice at 

Work Pennsylvania explained that when 

supervisors translate for workers, flawed 

interpretations or even full fabrications 

may result, and a translator can 

facilitate ‘‘an accurate and complete’’ 

conversation between CSHOs and 

workers (Document ID 0526, p. 2). NELP 

stated that ‘‘poor communication 

between workers onsite and OSHA 

inspectors is not solely a function of 

language access. OSHA compliance 

officers may lack the cultural 

competence, community knowledge, 

and existing relationships with workers 

that are necessary to facilitate trust and 

frank communication’’ (Document ID 

1972, p. 4). The USW also added that 

third-party representatives can provide 

‘‘language justice’’ by ensuring ‘‘cultural 

competency, trust and knowledge’’ 

(Document ID 1958, p. 2). Even when a 

CSHO has the requisite language skills 


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or access to an interpreter, third-party 

representatives can provide needed 

‘‘language and cultural competency 

skills’’ or have a prior relationship with 

workers, (Document ID 1972, p. 4–5; see 

also 1969, p. 18), and thereby bridge the 

gap between workers and CSHOs (see 

Document ID 1763, p. 4; 1972, p. 4). The 

AFL–CIO provided such an example 

when immigrant workers chose a faith 

leader from their community to be a 

representative during an OSHA 

inspection (Document ID 1969, p. 14). 

This faith leader helped the workers 

overcome their fear of speaking to the 

CSHO by drawing upon a prior 

relationship with the workers and by 

interpreting for them (Document ID 

1969, p. 14). 

Third, commenters explained that, in 

addition to technical expertise, thirdparty representatives may also benefit 

inspections by increasing employees’ 

trust in the inspection process and 

thereby their cooperation (see, e.g., 

Document ID 1972, p. 5–6). Commenters 

identified several reasons that 

employees may be reluctant to speak to 

an OSHA official, such as unfamiliarity 

with OSHA and their rights under the 

OSH Act, fears of retaliation, negative 

immigration consequences, language or 

cultural barriers, or their age, among 

other reasons (see, e.g., Document ID 

0526, p. 3; 1031; 1763, p. 2–4). The 

AFL–CIO explained that many 

employers discourage workers from 

engaging with OSHA, noting that 

workers have shared that their employer 

threatened them with getting in trouble, 

personally fined, or losing their job as 

a result of an OSHA inspection 

(Document ID 1969, p. 13). The AFL– 

CIO noted that vulnerable workers, 

including immigrant workers and 

refugees, may fear that speaking with 

OSHA will jeopardize their ability to 

stay and work in the United States 

(Document ID 1969, p. 13). Similarly, 

Justice at Work Pennsylvania shared 

that, in one client’s workplace, 

employees were too fearful to cooperate 

with OSHA after their employer called 

U.S. Immigration and Customs 

Enforcement on a co-worker (Document 

ID 0526, p. 3). Several commenters 

noted that employees ‘‘may feel unsafe 

speaking to OSHA inspectors without a 

trusted representative. . . .’’ such as 

worker centers, unions, community 

organizations, and attorneys (see, e.g., 

Document ID 0031; 0034; 1031). 

Commenters identified several ways 

that such third-party representation can 

promote employee trust and 

cooperation. For instance, commenters 

explained that a trusted employee 

representative can help workers 

understand OSHA’s inspection process 

(see, e.g., Document ID 0042). 

Commenters also stated that third-party 

representatives can guide and support 

workers through the inspection process, 

providing assurances that it is safe and 

worthwhile to provide information and 

encouraging employees to communicate 

openly with OSHA (see, e.g., Document 

ID 0526, p. 3; 1969, p. 13). The AFL– 

CIO noted several examples of 

situations where workers were willing 

to speak with OSHA when a trusted 

representative was present, including 

the example described above where 

workers chose a faith leader who they 

knew personally and trusted (Document 

ID 1969, p. 14). 

Additionally, commenters noted that 

third-party representatives can also 

serve as a buffer between the employer 

and employees who fear retaliation (see, 

e.g., Document ID 0014; 0022; 0089; 

0120; 0526, p. 3; 1023, p. 5; 10725) and 

can communicate employees’ concerns 

for them (see, e.g., Document ID 1728, 

p. 3). As the National Black Worker 

Center explained, ‘‘We understand the 

layered experience of Black workers on 

the job, including the fear of reporting 

health and safety issues due to employer 

retaliation. We are uniquely suited to 

support workers who may have 

reservations about calling out issues on 

the job’’ (Document ID 1767, p. 2–3). 

The National Black Worker Center 

explained that allowing worker centers 

to provide a third-party employee 

representative will ensure that ‘‘the 

specific concerns and experiences of 

workers, including those who have been 

historically underserved and 

underrepresented, are given due 

consideration during inspections’’ 

(Document ID 1767, p. 3). 

Some commenters also mentioned 

that a third-party representative can be 

especially helpful during fatality 

investigations, which are ‘‘particularly 

sensitive’’ (Document ID 1969, p. 17) 

and ‘‘stressful’’ for employees (1958, p. 

3–5). In these situations, third-party 

representatives can put employees at 

ease and enable them to feel more 

comfortable interacting with CSHOs 

(See, e.g., 1958, p. 3–5; 1969, p. 17). 

Several commenters also referenced 

an OSHA investigation in Palmyra, 

Pennsylvania where third-party 

representatives from the National 

Guestworkers Alliance (NGA), a 

workers’ advocacy group, had 

developed a relationship with the 

foreign students who worked at the 

inspected facility and assisted them by 

filing an OSHA complaint and 

accompanying OSHA during the 

inspection (see, e.g., Document ID 1945, 

p. 4–5; 1958, p. 3; 1978, p. 4–6). 

Commenters explained that OSHA 

benefitted from NGA’s representation of 

these workers in identifying and 

understanding workplace safety issues 

(see, e.g., Document ID 1945, p. 4–5). 

Fourth, several commenters pointed 

out the benefits of third-party 

representation on multi-employer 

worksites (see, e.g., Document ID 1747, 

p. 2; 1969, p. 16; 1970, p. 2). For 

example, the AFL–CIO pointed to an 

inspection involving a multi-employer 

worksite with union and non-union 

workers; the non-union workers 

designated a union agent who 

represented other workers on site as 

their walkaround representative 

(Document ID 1969, p. 16). The union 

agent assisted OSHA by providing 

information on the workplace 

respiratory procedures, which revealed 

violations of the respiratory protection 

standard and recordkeeping 

requirements (Document ID 1969, p. 16). 

In addition, IATSE stated that thirdparty representation can be helpful for 

inspections involving multi-employer 

worksites in the entertainment industry; 

IATSE explained that touring workers 

may be unfamiliar with worksite-based 

hazards and a location-based 

representative may better aid the CSHO 

during an inspection (Document ID 

1970, p. 2). 

Fifth, and last, commenters also 

expressed support for allowing thirdparty employee representatives on 

walkaround inspections because there is 

a need to balance employee and 

employer rights under the OSH Act. As 

the UWUA explained, ‘‘[a]lthough the 

value of having a worker’s chosen 

representatives involved in the 

investigation process cannot be 

mathematically quantified, . . . [a] 

worker representative brings the 

possibility of worker trust, subject 

matter expertise, language justice, 

empowerment, and protection to a 

situation that can otherwise simply 

devolve into the meting out of blame by 

an employer seeking only to protect 

itself’’ (Document 1761, p. 2). As 

another commenter similarly noted, 

third party representation can empower 

workers and thereby minimize the 

employer’s ability to control what 

information is shared by employees, 

which enables CSHOs to gather more 

accurate information (Document ID 

0526, p. 2). Other commenters also 

pointed to employers’ ‘‘unrestricted 

ability’’ to select their workaround 

representative and argued that OSHA 

should go beyond the current proposal 

and provide employees that same right 

without qualification and employer 

interference (see, e.g., Document ID 

1958, p. 5–6). A commenter asserted 

that when workers are allowed to 


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designate their own representatives, 

workers have increased trust in OSHA, 

and inspections are more efficient, 

complete, and accurate (Document ID 

1958, p. 1–2). 

2. Comments Opposed to Third-Party 

Representation 

Many commenters disputed the need 

for and benefits of third parties and 

raised numerous arguments to support 

their positions. These arguments 

included: (1) that OSHA has not 

presented evidence demonstrating a 

need for third parties; (2) third parties 

cannot aid OSHA’s inspections when 

they are unfamiliar with the particular 

worksite being inspected; (3) industryspecific concerns should preclude thirdparty representation; (4) third parties 

may discourage employer cooperation; 

(5) third-party representatives will 

disenfranchise employees; (6) the use of 

third parties will lower the 

qualifications to be a CSHO; (7) third 

parties may have ulterior motives and 

could engage in conduct unrelated to 

the inspection; (8) the potential 

disclosure of confidential business 

information and trade secrets outweighs 

the need for third-party representation; 

and (9) alternatively, if third parties are 

allowed to serve as employee 

representatives, they should be limited 

to individuals with technical expertise 

or language skills. 

First, commenters argued that OSHA 

has failed to demonstrate a need for 

third-party representation during the 

walkaround. For example, some 

commenters asserted that OSHA did not 

provide evidence that the rule will 

facilitate more efficient inspections, aid 

CSHOs during the walkaround 

inspection, or otherwise promote the 

safety and health of workers (see, e.g., 

1776, p. 10; 1939, p. 4; 1953, p. 4; 1976, 

p. 4 fn. 9). Commenters questioned why 

CSHOs were not capable of handling 

inspections on their own and needed 

third parties to assist them or were 

passing off their inspection 

responsibilities to others (see, e.g., 

Document ID 0046; 1938, p. 1; 1974, p. 

3–4; 3347). The Pacific Legal 

Foundation also asked why OSHA 

needed third parties on an employer’s 

premises when third parties could 

accomplish their activities, such as 

communicating with employees, offsite 

(Document ID 1768, p. 5). 

Relatedly, other commenters argued 

that OSHA does not need third-party 

employee representatives during its 

inspections because OSHA’s current 

inspection procedures are sufficient 

(see, e.g., Document ID 1960, p. 1). For 

example, one commenter stated that 

employees are already empowered to 

participate in OSHA’s inspections since 

they can file anonymous complaints and 

speak with CSHOs in private (Document 

ID 1955, p. 3). Similarly, commenters 

asserted that the FOM already accounts 

for situations where CSHOs need thirdparty translation and that the current 

regulation allows for third parties with 

technical expertise to accompany 

CSHOs in ‘‘limited situations’’ 

(Document ID 1960, p. 3–4; see also 

1952, p. 2). Ultimately, commenters 

asserted that ‘‘OSHA is improperly 

seeking to address a nonexistent issue’’ 

(Document ID 1955, p. 3; see also 1976, 

p. 4) and that ‘‘[t]here is no pressing 

need for this change’’ (Document ID 

9002). 

Second, commenters expressed 

skepticism that third parties who are 

unfamiliar with a specific worksite 

could have anything meaningful to 

contribute to an OSHA inspection (see, 

e.g., Document ID 0033). For example, 

the American Chemistry Council 

asserted that each chemical 

manufacturing facility and its hazards 

are unique and that merely having a 

general understanding of hazards is 

insufficient to truly aid an OSHA 

inspection (Document ID 1960, p. 2). 

Commenters argued that employees of 

the employer, and not third parties, are 

better suited to be representatives 

because employees understand the 

specific tasks at issue by virtue of their 

employment and may have received jobspecific training (see, e.g., Document ID 

1960, p. 2). NFIB also took issue with 

the type of knowledge, skills, or 

experience that OSHA indicated could 

aid the inspection, asserting that 

‘‘[w]hat constitutes relevant knowledge 

or skills is left vague’’ and that it is 

unclear whether the phrase ‘‘with 

hazards or conditions in the workplace 

or similar workplaces’’ modifies 

‘‘experience’’ or also ‘‘relevant 

knowledge’’ and ‘‘skills’’ (Document ID 

0168, p. 5). 

Third, commenters also raised a 

number of industry-specific safety and 

security concerns. For instance, in the 

manufacturing industry, the Illinois 

Manufacturer’s Association raised safety 

concerns, asserting that third-party 

representatives were unnecessary 

because they could pose safety risks to 

themselves or others, or to the 

employer’s products due to their lack of 

expertise and/or training (see, e.g., 

Document ID 1762, p. 2–3; 1770, p. 4; 

1774, p. 4; 1937, p. 2; 1974, p. 2–3; 

1946, p. 7; 1942, p. 5). In addition, 

commenters raised safety and securityrelated concerns for their industries. 

The National Council of Farmer 

Cooperatives explained that some 

agriculture employers are required to 

restrict access to their facilities to only 

authorized personnel who are trained in 

practices of ensuring food safety; this 

commenter expressed concerns that the 

proposed rule could result in 

noncompliance with that requirement 

(Document ID 1942, p. 5). The Food 

Industry Association asserted that the 

presence of third parties could create 

serious food safety hazards in food 

production and warehousing, noting the 

need for following strict sanitation 

protocols (Document ID 1940, p. 3). The 

American Chemistry Council similarly 

raised concerns about third parties in 

the chemical industry who have not 

undergone background checks or who 

lack credentials through the Chemical 

Facility Anti-Terrorism Standards 

program or the Transportation Worker 

Identification Credential program 

(Document ID 1960, p. 5). 

Commenters also raised concerns in 

the healthcare context (see, e.g., 

Document ID 0234, p. 2). Hackensack 

Meridien Health shared two examples: 

(1) at one of its hospitals, a union 

brought in a third party to provide 

feedback on a workplace safety issue 

and shared information with OSHA that 

was not scientifically sound (though 

OSHA did not ultimately use the 

information); and (2) employees brought 

in an expert for a walkaround who did 

not recognize a patient safety concern, 

which the employer’s internal team later 

identified and remediated (Document ID 

0234, p. 2). According to Hackensack 

Meridian Health, both instances could 

have resulted in harm to patients or 

team members because the third party 

did not possess the requisite expertise 

(Document ID 0234, p. 2). 

Fourth, commenters expressed 

concerns that third parties could 

discourage cooperation from employers. 

Commenters argued that third parties 

could ‘‘discourage[ ] employer 

cooperation in the inspection process’’ 

(see, e.g., Document ID 1938, p. 1). One 

commenter asserted that most 

employers currently cooperate with 

inspections by not requiring warrants; 

however, it predicted that more 

employers will request warrants if 

employee representatives can be third 

parties, including due to the fear of 

union organizing (Document ID 1938, p. 

9; see also 1772, p. 1). 

Fifth, some commenters also asserted 

that third-party representation would 

‘‘disenfranchise’’ employees by 

replacing employee representatives with 

third-party representatives (see, e.g., 

Document ID 1120; 1123; 1163). A 

commenter asked, ‘‘Would you like for 

someone off the street to come in and 

tell you to ‘pack up your stuff and leave, 


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I’m replacing you?’ I wouldn’t think so’’ 

(Document ID 1163). 

Sixth, commenters also asserted that 

third-party representation could result 

in lowering the qualifications to be a 

CSHO. For example, some commenters, 

such as Larson Environmental, 

expressed concern that the proposal 

would result in ‘‘soften[ing] or 

water[ing] down the need for technical 

expertise and training of OSHA 

employees’’ (Document ID 1109; see 

also 0033). 

Seventh, commenters argued that 

third parties may not benefit OSHA’s 

inspections because third parties may 

have ulterior motives and be engaged in 

conduct unrelated to the inspection 

(see, e.g., Document ID 1775, p. 6; 1937, 

p. 5). For example, commenters 

suggested that third parties could 

engage in union organizing (Document 

ID 0168, p. 5–6; see also 1964, p. 2). 

Commenters also expressed concerns 

that attorneys or experts serving as 

third-party representatives could use the 

walkaround to conduct pre-litigation 

discovery in personal injury or wrongful 

death actions (Document ID 1938, p. 5; 

1976, p. 11–12) or that attorneys could 

use the walkaround to solicit clients 

(Document ID 1953, p. 5). Others also 

worried about disgruntled former 

employees engaging in workplace 

violence or causing conflict (see, e.g., 

Document ID 1762, p. 3–4; 1781, p. 2), 

and raised concerns about the conduct 

of other third parties such as 

competitors, relatives or friends of 

injured or deceased employees, job 

applicants who did not a receive a job, 

or individuals with ideological 

differences (see, e.g., Document ID 1272; 

1533; 1701; 1762, p. 3–4; 1937, p. 5; 

1976, p. 11–12). For example, the 

American Family Association asserted 

that ‘‘[a]llowing facility access to a 

third-party representative who might 

hold views antithetical to AFA’s 

mission could easily disrupt the current 

requirement that OSHA conduct a ‘fair 

and orderly inspection’’’ (Document ID 

1754, p. 3). 

Eighth, commenters also argued that 

the need to protect trade secrets and 

other confidential information 

outweighs the need for third parties. For 

example, commenters voiced concerns 

that a third-party representative, such as 

competitor or someone who is hostile to 

the employer being inspected, could 

obtain and disclose trade secrets or 

other confidential business information 

(see, e.g., Document ID 0040, p. 4; 0175, 

p. 2; 11515) or relatedly, pose antitrust 

issues (Document ID 1937, p. 3; 1960, p. 

6). With regard to the manufacturing 

industry in particular, commenters 

explained that ‘‘the manufacturing 

process itself constitutes proprietary 

trade secrets that would be impossible 

to protect from disclosure’’ (Document 

ID 0175, p. 2) and that ‘‘[e]ach 

manufacturing process may have unique 

or specialized features that give them a 

competitive edge’’ (Document ID 1937, 

p. 3). 

Commenters also raised concerns 

about the unauthorized disclosure of 

confidential business information 

generally; as examples of such 

information, they pointed to an 

employer’s operations, customer and 

supplier data, intellectual property, or 

employees’ sensitive information (see, 

e.g., Document ID 1774, p. 3, 6; 11487). 

The International Foodservice 

Distributors Association (IFDA) 

provided additional examples of 

confidential information, including: 

‘‘the layout of the facility, staffing, large 

pieces of equipment, materials used, 

and other information that cannot be 

easily kept away from a third-party 

representative’’ (Document ID 1966, p. 

3). Commenters argued that the 

unauthorized disclosure of confidential 

information could occur due to the 

NPRM’s ‘‘lack of a set definition of 

‘trade secrets’’’ (Document ID 1774, p. 3) 

and the fact that OSHA’s existing 

regulation at 1903.9 is limited to trade 

secrets (Document ID 1966, p. 3). 

In addition, the Utility Line Clearance 

Safety Partnership argued that while 

OSHA is not permitted to disclose trade 

secrets or other confidential business 

information, which it notes is protected 

from disclosure in a Freedom of 

Information Act request, the rule fails to 

prevent third parties from disclosing the 

same information (Document ID 1726, p. 

7). NRF recommended that the rule 

‘‘provide authority for injured 

employers to bring claims against the 

Secretary for monetary remedies and 

other sanctions’’ if a third-party 

representative obtains trade secrets and 

proprietary information (Document ID 

1776, p. 3–4). The Workplace Policy 

Institute likewise asserted that 

disclosure of confidential information 

and trade secrets to competitors or the 

public would result in litigation 

requiring OSHA staff testimony 

(Document ID 1762, p. 3). 

Ninth, and lastly, several commenters 

argued that, if the final rule ultimately 

permitted third-party employee 

representatives, the rule should be 

narrow and limit third-party 

representatives to certain professions. 

Some commenters asserted that third 

parties should be limited to the 

enumerated examples in the current 

regulation—industrial hygienists and 

safety engineers—or to individuals with 

technical expertise or certain 

professional certifications (see, e.g., 

Document ID 1384; 1937, p. 2). For 

example, the American Family 

Association commented that the rule 

should require third-party 

representatives to ‘‘possess 

demonstrable safety and health 

expertise, relevant to the workplace 

being inspected’’ (Document ID 1754, p. 

2). 

Several commenters, including U.S. 

Representative Virginia Foxx and the 

U.S. Apple Association, contended that 

the previous regulation only permitted 

third-party employee representatives 

with technical or safety expertise (see, 

e.g., Document ID 1756, p. 2; 1936, p. 

1; 1939, p. 1–2; see also 1966, p. 4–5). 

The North American Insulation 

Manufacturers Association asserted that 

under the previous regulation, a thirdparty employee representative ‘‘must 

normally have specialized safety 

knowledge’’ (Document ID 1937, p. 2). 

According to a coalition of state-based 

think tanks and public interest litigation 

groups (the State Policy Network), the 

inclusion of industrial hygienists and 

safety engineers as examples was 

intended to ‘‘establish minimum floor 

threshold qualifications’’ for third-party 

representatives; the State Policy 

Network further argued that, according 

to ‘‘historical OSHA policy manuals,’’ 

such individuals ‘‘must have minimum 

levels of education, experience, and 

certification granted by professional 

organizations and/or State-level 

administrative agencies’’ (Document ID 

1965, p. 13). The Mom and Pop Alliance 

of SC also expressed concern that the 

proposal would ‘‘eliminate the requisite 

technical credentials necessary for nonemployees to participate’’ in the 

inspection (Document ID 0528). 

Other commenters supported limiting 

the universe of potential third parties 

but were open to both technical experts 

and interpreters serving as third parties 

(see, e.g., Document ID 10797; 1782, p. 

3). For example, the Flexible Packaging 

Association explained that it did not 

necessarily object to a third-party 

representative participating in a 

walkaround inspection, particularly if 

that representative was a translator, 

industrial hygienist, or safety engineer, 

but expressed concern that the proposal 

would permit a ‘‘seemingly unlimited 

variety of people’’ who can serve as 

third-party representatives, and urged 

OSHA to limit third-party 

representatives to technical experts and 

translators (Document ID 1782, p. 3). A 

private citizen commented that 

industrial hygienists and safety 

engineers should not be deleted, but 

‘‘language expert’’ should be added as 

an additional example to ‘‘help the 


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focus of inspections to remain on health 

and safety and clear communication of 

such’’ (Document ID 10797). 

3. Conclusion on the Need for and 

Benefits of Third-Party Representatives 

After reviewing the comments, OSHA 

has decided to adopt its proposed 

revisions because allowing third-party 

representatives as discussed in this rule 

better comports with the OSH Act. 

Nothing in section 8(e) expressly 

requires ‘‘a representative authorized by 

. . . employees’’ to be an employee of 

the employer. 29 U.S.C. 657(e). Rather, 

the statute merely states that the 

representative must ‘‘aid[ ] the 

inspection.’’ Id. The revisions adopted 

by this final rule better conform with 

section 8(e)’s requirement by 

eliminating the text in the regulation 

requiring employee representatives to be 

an employee of the employer. In 

addition, the revisions ensure 

employees are able to select trusted and 

knowledgeable representatives of their 

choice, leading to more comprehensive 

and effective OSHA inspections. 

Through the agency’s own enforcement 

experience and based on numerous 

comments, particularly those with reallife examples, OSHA has determined 

that there are a wide variety of third 

parties who can aid OSHA’s inspection. 

OSHA has therefore concluded that it is 

appropriate to delete the examples of 

industrial hygienists and safety 

engineers in the prior rule to make it 

clear that a third party is not reasonably 

necessary solely by virtue of their 

professional discipline. Rather, the 

focus is on how the individual can aid 

the inspection, e.g., based on the 

individual’s knowledge, skills, or 

experience. The final rule, however, 

does not change the requirement that, 

once the CSHO is notified that 

employees have authorized a third party 

to represent them during a walkaround 

inspection, the third party may 

accompany the CSHO only if the CSHO 

determines that good cause has been 

shown that the third party is reasonably 

necessary to an effective and thorough 

inspection. 

In deciding to adopt its proposed 

revisions, OSHA agreed with 

commenters who explained how thirdparty employee representatives can 

greatly aid OSHA inspections. In a 

variety of ways, third parties can assist 

OSHA in obtaining information and 

thereby ensuring comprehensive 

inspections. For example, the comments 

submitted in support of the proposed 

rule demonstrated that third parties can 

provide valuable technical expertise and 

support to CSHOs during walkaround 

inspections. This includes inspections 

involving workplace hazards that do not 

fall under a specific standard and 

worksites that contain hazards that are 

not readily apparent to the CSHO. 

Third parties also may be more likely 

to understand industry standards than 

an employee of the employer, and many 

comments demonstrated the benefits of 

having a third-party representative with 

industry-specific expertise. Several 

commenters provided compelling 

examples of this, such as the UWUA’s 

national representative providing 

guidance to a CSHO about changes in 

the utility industry, including the use of 

an inclinometer (Document ID 1761, p. 

1), and the USW safety representative’s 

contribution to a fatality inspection 

involving a dust collection system due 

to that representative’s experience in the 

industry and service on a combustible 

dust committee of the National Fire 

Protection Association (Document ID 

1958, p. 3–4). A former director of 

AFSCME also provided a first-hand 

example of how he, as a third-party 

employee representative, was able to 

draw from his knowledge and 

experience in the healthcare industry 

not only to provide guidance to the 

CSHO on less well-known hazards but 

also to share how other workplaces in 

the industry had addressed similar 

hazards (Document ID 1945, p. 2–3). 

While several commenters opposed to 

the rule argued that third parties will 

lack industry-specific expertise and 

pose safety risks to themselves or others, 

or to the employer’s products, 

comments supporting the rule 

demonstrate that many third parties can 

and do in fact possess industry-specific 

knowledge expertise and that such 

expertise has assisted OSHA’s 

inspections. However, even if a third 

party lacked such industry-specific 

knowledge or expertise, it does not 

necessarily mean they will pose a risk 

or cause harm, as Hackensack Meridien 

Health contended. 

Hackensack Meridien Health asserted 

that employees or patients could have 

been harmed on two separate 

occasions—once, when a third party 

provided safety feedback to OSHA that 

Hackensack Meridien Health did not 

feel was scientifically sound and, on 

another occasion, when an expert did 

not recognize a patient safety concern. 

However, in the first example, which 

does not indicate whether the third 

party was a walkaround representative, 

Hackensack Meridien Health 

acknowledged that OSHA did not rely 

on the advice. In addition, in the second 

example, a walkaround representative is 

not expected or required to identify 

patient concerns or replace the CSHO, 

as the representative’s role is to aid 

OSHA’s inspection into workplace 

hazards that could harm employees. 

Furthermore, these examples do not 

show that a third party caused any harm 

or that OSHA’s inspection procedures 

related to employee representation were 

inadequate. 

Concerns about risks third parties 

pose in certain industries are 

speculative and ignore the roles of both 

the third party and the CSHO during the 

inspection. Third-party representatives 

have a specific purpose—to aid OSHA’s 

inspection. Therefore, they must stay 

near the CSHO and are not permitted to 

wander away from the inspection or 

into unauthorized areas. While some 

commenters in the chemical industry 

discussed the need for third parties to 

follow the facility’s sanitation protocols, 

and some commenters in the chemical 

industry discussed the need for third 

parties to have certain credentials, 

OSHA has ample experience conducting 

investigations in worksites with such 

requirements. During the opening 

conference, the CSHO inquires about 

any such work rules or policies, such as 

policies related to PPE, areas requiring 

special precautions, whether any safety 

briefings are necessary, and any other 

policies relevant to the inspection. 

CSHOs have long adhered to such 

policies in conducting inspections in 

facilities with unique requirements, and 

any third party would generally need to 

as well, as long as those rules and 

policies apply equally to all visitors and 

are not implemented or enforced in a 

way that interferes with an employee 

representative’s right to accompany the 

CSHO. OSHA will consider facilityspecific concerns on a case-by-case 

basis, but anticipates that the agency’s 

existing inspection procedures 

adequately address concerns about 

potential harm from third parties in any 

given industry. 

In addition to certain types of 

expertise third parties may have, third 

parties can also offer interpretation 

skills for employees with limited 

English proficiency and provide greater 

language access by using their cultural 

competence and prior relationships 

with workers. With regard to 

interpretation, third parties can help 

ensure employees are able to have 

accurate and complete conversations 

with CSHOs and that employees do not 

have to rely on supervisors to interpret 

or on ad hoc interpreters. This can 

prevent situations where supervisors or 

ad hoc interpreters provide flawed or 

fabricated versions of employees’ 

statements. While commenters have 

argued that OSHA could instead use 

bilingual CSHOs or hire outside 

interpreters, these comments ignore an 


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important component of third parties’ 

interpretation assistance—their cultural 

competencies. Employees may not be as 

comfortable when the interpreter is a 

law enforcement official, such as a 

CSHO, or when the interpreter is 

unknown to them. In contrast, as 

commenters supporting the rule 

explained, if an interpreter is from a 

workers advocacy group or union 

designated by the employees, employees 

may trust the interpreter more and, as a 

result, be more willing to provide 

information. 

Likewise, third parties can increase 

worker involvement in the inspection 

by facilitating communication between 

workers and OSHA. Multiple 

commenters submitted examples of 

situations where third-party 

representatives were trusted by workers 

and successfully encouraged them to 

speak more openly with CSHOs. Several 

commenters argued that employees may 

fear retaliation if they speak to an OSHA 

official, and both comments in the 

record and OSHA’s own enforcement 

experience demonstrate that workers are 

more likely to speak openly and 

participate in an OSHA inspection if 

they have a representative who they 

trust. Several commenters noted that 

workers are the ‘‘eyes and ears of a 

workplace, and are in the best position 

to provide OSHA with the inspection 

information it needs regarding the 

presence of hazards, the frequency and 

duration of worker exposure to them, 

and the employer’s awareness of both 

hazards and exposures’’ (Document ID 

1934, p. 2; see also 1031; 1769, p. 3). 

Without employee cooperation and 

participation, OSHA may not be able to 

gather all the relevant information 

during a workplace inspection. Ensuring 

that workers have a trusted 

representative so that they are able to 

cooperate in an OSHA inspection is 

critical. 

In addition, third parties may have 

cultural competency skills that can 

facilitate communication not only with 

employees who need interpreters but 

also for a number of other employees. 

Employees may not trust or understand 

government processes, and third parties, 

particularly third parties known to the 

employees, allow the employees to be 

more at ease or forthcoming during the 

OSHA inspection. The presence of third 

parties can also be beneficial in 

workplaces where employees fear 

retaliation or intimidation by their 

employer and are afraid to speak up. 

Employees may either feel more 

empowered to participate or may feel 

more comfortable relying on the third 

party to represent their interests without 

revealing a particular employee’s 

identity. 

Third parties may also aid inspections 

that are complex, include multiple 

employers, or involve fatalities or 

serious injuries. While third-party 

representatives do not need to be safety 

engineers or industrial hygienists to aid 

an inspection, representatives can often 

possess important technical or safety 

expertise necessary for a thorough 

inspection even if they are not 

specifically employed as safety and 

health professionals. In support of this, 

commenters asserted that union officials 

and worker advocates often have 

industry-specific or workplace safety 

expertise that is helpful to a CSHO’s 

inspection and, most importantly, helps 

to facilitate a CSHO’s communication 

with workers about workplace safety. 

OSHA has revised the final rule to 

make explicit that a representative may 

be reasonably necessary if they facilitate 

communication between workers and 

the CSHO. As explained above, there are 

a number of reasons, other than 

language skills, why a third party may 

be able to facilitate communication 

between workers and the CSHO, 

including because of their trusted 

relationship with workers, their cultural 

competence, or because they can put 

employees at ease and enable them to 

speak more candidly with the CSHO. 

Ensuring that employees have a voice 

during the inspection and have the 

ability to speak openly and candidly 

with the CSHO is critical to ensuring 

that OSHA obtains the necessary 

information about worksite conditions 

and hazards to conduct a thorough 

inspection. Accordingly, OSHA has 

revised paragraph (c) to add 

communication skills to the exemplar 

skills that could be reasonably necessary 

to an effective and thorough inspection. 

Several commenters incorrectly asserted 

that the previous regulation only 

permitted third-party representatives 

with technical or safety expertise (see, 

e.g., Document ID 1756, p. 2; 1936, p. 

1; 1939, p. 1–2; see also 1966, p. 4–5), 

and the State Policy Network referenced 

an OSHA guidance document in 

support of its arguments that 

representatives ‘‘must have minimum 

levels of education, experience, and 

certification granted by professional 

organizations and/or State-level 

administrative agencies’’ (Document ID 

1965, p. 13). 

These comments are misguided; 

OSHA did not previously limit 

1903.8(c) to technical or safety experts, 

nor do those commenters point to any 

evidence to support their claims. The 

only OSHA document referenced by the 

State Policy Network is an OSHA 

booklet titled ‘‘The Occupational Health 

Professional’s Services and 

Qualifications: Questions and Answers’’ 

(Occupational Health Q & A), available 

at https://www.osha.gov/sites/default/ 

files/publications/osha3160.pdf. This 

guidance document relates to how 

employers select health care 

professionals to ‘‘assist the employer in 

achieving a safe and healthful work 

environment’’ (Occupational Health Q & 

A, p. 7). Although the guidance 

document references occupational 

health care professionals’ education and 

training, it has nothing to do with who 

employees may select as their 

walkaround representative under 

1903.8(c). 

Industrial hygienists and safety 

engineers were included in the prior 

regulation as examples of individuals 

who may be reasonably necessary to an 

inspection but were not intended to 

limit employees’ ability to authorize the 

participation of third-party 

representatives with other skills or 

expertise. And the examples provided 

by unions and worker advocates, 

discussed above, show that OSHA 

applied paragraph (c) to allow thirdparty employee representatives to 

accompany the CSHO on the 

walkaround where they aid the 

inspection even though they were not 

industrial hygienists or safety engineers. 

The record is replete with examples of 

how third parties with a variety of 

knowledge, skills, or experience beyond 

technical expertise made them 

reasonably necessary to the conduct of 

an effective and thorough physical 

inspection. OSHA emphasizes that the 

examples in paragraph (c) are 

illustrative and not exhaustive; while 

the phrase ‘‘with hazards or conditions 

in the workplace or similar workplaces’’ 

modifies ‘‘knowledge, skills, and 

experience,’’ there may be other types of 

knowledge or skills that could be 

reasonably necessary to the conduct of 

an effective and thorough inspection. 

OSHA also rejects comments asserting 

that permitting third-party employee 

representatives to accompany the CSHO 

indicates that OSHA is not competent to 

conduct inspections. In explaining why 

an employee representative must be 

given the opportunity to accompany the 

CSHO on an inspection under section 

8(e) of the OSH Act, Senator Williams 

explained that ‘‘no one knows better 

than the working [person] what the 

conditions are, where the failures are, 

where the hazards are, and particularly 

where there are safety hazards.’’ 

Subcomm. on Labor of the Senate 

Comm. on Labor and Public Welfare, 

92d Cong. 1st Sess., reprinted in 

Legislative History of the Occupational 


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Safety and Health Act of 1970, at 430 

(Comm. Print. 1971). While CSHOs have 

significant expertise, training, and 

experience in identifying safety and 

health hazards, it is not reasonable to 

expect every CSHO to have 

comprehensive knowledge of every 

aspect of site-specific equipment, 

materials, work practices, and safety 

requirements without assistance from 

employees. By permitting employees to 

designate representatives of their 

choice, OSHA will be better able to 

obtain information from employees that 

is necessary to conduct a 

comprehensive inspection. More 

comprehensive OSHA inspections will 

be more protective of worker safety and 

health. 

Likewise, contrary to some 

commenters’ arguments, this rule will 

not result in OSHA lowering its 

qualifications for CSHOs or decreasing 

the amount or quality of training 

provided to CSHOs. This rule will not 

diminish the CSHO’s role in an OSHA 

inspection. CSHOs will continue to be 

in charge of conducting inspections and 

have the authority to use various 

reasonable investigative methods and 

techniques, such as taking photographs, 

obtaining environmental samples, and 

questioning individuals while carrying 

out their inspection. See 29 CFR 

1903.3(a); 1903.7(b); 1903.8(a). Rather 

than weakening the CSHO’s role, this 

rule will enable CSHOs to obtain more 

comprehensive information during an 

inspection. 

Commenters additionally argued that 

OSHA’s current procedures (such as 

anonymous complaints and CSHO’s 

private interviews with workers) are 

sufficient and that third parties can 

conduct all activities offsite; however, 

many other comments demonstrated 

otherwise and established that thirdparty representatives are critically 

important during the walkaround 

portion of the inspection. OSHA also 

finds that third-party representatives, 

including those from unions or worker 

advocacy groups, are needed to 

accompany CSHOs during inspections 

because representatives explaining 

OSHA processes or protections against 

retaliation before or after the inspection 

would not be sufficient to adequately 

assure workers. The physical inspection 

is a key part of OSHA’s investigation; it 

is often difficult to obtain information 

from workers after the inspection 

because workplace conditions change, 

or workers leave employment or recall 

less about the circumstances of an 

incident that was the subject of the 

inspection. Having third-party 

representatives accompany a CSHO 

during the inspection can reassure 

workers during this vital step and allow 

the CSHO to gather information more 

effectively and efficiently. Additionally, 

even if workers are reassured about 

OSHA processes outside of the physical 

inspection, workers could still be 

intimidated or confused when faced 

with a CSHO without the presence of an 

authorized third-party representative. 

In addition, OSHA disagrees with 

comments that asserted that employees, 

and not third parties, are always better 

suited to serve as employee 

representatives due to employees’ 

familiarity with the worksite and job 

tasks. These comments ignore the 

variety of knowledge, skills, or 

experience third parties offer, as well as 

the particularities of different 

inspections, and the fact that employees 

may sometimes prefer to have 

nonemployee representatives 

accompany the CSHOs. They also 

disregard the many reasons employees 

may be reluctant or scared to participate 

in an inspection, much less as the 

employee representative. While 

employees who are willing to be a 

walkaround representative certainly aid 

OSHA’s inspections and are entitled to 

be the representative if authorized by 

employees, OSHA disagrees with the 

suggestion that only employees, and 

never third parties, could contribute to 

an OSHA inspection. 

OSHA does, however, recognize that 

there may be situations where a thirdparty representative will not aid 

OSHA’s inspection during the 

walkaround. By maintaining the 

requirement that good cause be shown 

that the third-party representative is 

reasonably necessary to the conduct of 

an effective and thorough physical 

inspection of the workplace, OSHA will 

allow third-party representatives to 

accompany the CSHO only when they 

will aid the inspection. Concerns about 

potential misconduct, injury, or 

malfeasance from third-party 

representatives, and how OSHA would 

respond, are discussed in more detail 

herein, including in Sections IV.E, IV.G, 

IV.H. 

In addition, OSHA disagrees with 

commenters that argued that the 

protection of trade secrets or other 

confidential business information 

outweighs the need for third parties. 

These concerns can be addressed while 

still allowing third parties to serve as 

walkaround representatives. OSHA’s 

existing regulations expressly afford 

employers the right to identify areas in 

the workplace that contain or might 

reveal a trade secret, and request that, in 

any area containing trade secrets, the 

authorized employee representative 

shall be an employee in that area or an 

employee authorized by the employer to 

enter that area. See 29 CFR 1903.9(c), 

(d). Although one commenter criticized 

the NPRM for not defining ‘‘trade 

secrets,’’ this term is defined in section 

15 of the OSH Act by reference to 18 

U.S.C. 1905, as information concerning 

or related to ‘‘processes, operations, 

style of work, or apparatus, or to the 

identity, confidential statistical data, 

amount or source of any income, profits, 

losses, or expenditures of any person, 

firm, partnership, corporation, or 

association.’’ See also OSHA Field 

Operations Manual, Chapter 3, Section 

VII.E. 

If an employer identifies something as 

a trade secret, OSHA will treat it as a 

trade secret if there is ‘‘no clear reason 

to question such identification.’’ See 29 

CFR 1903.9(c); OSHA Field Operations 

Manual, Chapter 3, Section VII.E. 

Accordingly, OSHA finds that existing 

requirements and policies are sufficient 

to protect employers’ trade secrets and 

propriety information, but will address 

any unique circumstances on an 

inspection-by-inspection basis. 

While two commenters asserted that a 

third-party walkaround representative 

from a competitor could raise antitrust 

or anticompetition concerns, this 

assertion appears highly improbable. 

First, any third-party must be 

authorized by the employer’s 

employees, and it seems unlikely that 

employees would authorize a 

competitor who would then engage in 

anticompetitive conduct to represent 

them. Further, the CSHO must find good 

cause has been shown that a third party 

is reasonably necessary to the conduct 

of an effective and thorough physical 

inspection of the workplace. This 

requirement ensures that the 

representative will aid the inspection. 

Additionally, if a third party engages in 

conduct that is unrelated to the 

inspection, the CSHO has the authority 

to terminate the third party’s 

accompaniment. 

OSHA also disagrees with 

commenters that argued third parties are 

not needed because third parties can 

discourage employer cooperation or 

disenfranchise employees. Concerns 

about diminished employer cooperation 

and an increase in warrants are 

discussed in more detail in Sections 

IV.G. Further, commenters have also 

failed to show how workers will be 

disenfranchised by allowing third-party 

representatives because workers still 

have the right to designate employee 

representatives. Because third-party 

representatives must be authorized by 

workers, they cannot ‘‘disenfranchise’’ 

workers. Rather, they can facilitate 

worker participation during inspections. 


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Finally, comments arguing that the 

purpose of this rule is to facilitate union 

organizing are incorrect. Employee 

representation during the inspection is 

critically important to ensuring OSHA 

obtains the necessary information about 

worksite conditions and hazards. In 

addition, the rule does not limit thirdparty representatives to union 

representatives but clarifies that varying 

types of third parties may serve as 

employee representatives based on their 

knowledge, skills, or experience. Thirdparty representatives’ sole purpose 

onsite is to aid OSHA’s inspection, 29 

U.S.C. 657(e), and CSHOs have 

authority to deny the right of 

accompaniment to third parties who do 

not do that or who interfere with a fair 

and orderly inspection. 29 CFR 

1903.8(a)–(d). 

Ultimately, as evidenced herein, 

OSHA disagrees with commenters that 

assert that there is no need or not a 

pressing need for this rulemaking. The 

district court’s decision in NFIB v. 

Dougherty necessitated this rulemaking 

to explain OSHA’s ‘‘persuasive and 

valid construction of the Act.’’ 2017 WL 

1194666, *12. Moreover, neither the 

plain text of the OSH Act nor its 

legislative history support arguments 

that OSHA is required to show that 

there is a ‘‘pressing need’’ to clarify who 

is eligible to be a third-party 

representative. For a fuller discussion of 

OSHA’s rulemaking authority, see 

Section III, Legal Authority. 

For the reasons discussed above, 

OSHA has determined that permitting 

employees to select trusted and 

knowledgeable representatives of their 

choice, including third parties, 

facilitates the CSHO’s information 

gathering during OSHA inspection, 

which will improve the effectiveness of 

OSHA inspections and benefit 

employees’ health and safety. Employee 

representatives can ensure that CSHOs 

do not receive only the employer’s 

account of the conditions in the 

workplace. As National COSH 

explained, employees are a key source 

of information as to specific incidents, 

and they also may possess information 

related to an employer’s history of past 

injuries or illnesses and an employer’s 

knowledge of or awareness of hazards 

(Document ID 1769, p. 2). By obtaining 

comprehensive information, OSHA can 

not only better and more timely identify 

dangerous hazards, including hazards 

that may be hidden or hard to detect, 

but ensure the hazards are abated 

quickly and do not injure or kill 

employees. Accordingly, OSHA 

concludes that its rule is necessary. See 

29 U.S.C. 657(g)(2). 

B. The ‘‘Good Cause’’ and ‘‘Reasonably 

Necessary’’ Requirement 

In the NPRM, OSHA proposed to 

revise 29 CFR 1903.8(c) to clarify that 

the representative(s) authorized by 

employees may be a third party and that 

third parties are not limited to the two 

examples listed in the existing rule. 

However, as the NPRM explained, the 

proposed revisions would not alter the 

regulation’s existing requirement for the 

CSHO to determine that ‘‘good cause’’ 

had been shown why the third party 

was ‘‘reasonably necessary to the 

conduct of an effective and thorough 

physical inspection of the workplace.’’ 

The NPRM requested public input 

regarding the ‘‘good cause’’ and 

‘‘reasonably necessary’’ requirement for 

third-party employee representatives. 

The NPRM also set forth the following 

three questions, suggesting alternatives 

to OSHA’s proposed revisions. 

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)? 

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? 

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? 

OSHA received many comments both 

for and against the ‘‘good cause’’ and 

‘‘reasonably necessary’’ requirement, 

and many commenters specifically 

addressed the possible alternatives. 

After reviewing the comments, 

summarized below, OSHA has decided 

to retain the existing ‘‘good cause’’ and 

‘‘reasonably necessary’’ requirements in 

the final rule. Therefore, if the 

representative authorized by employees 

is a third party, the third party may 

accompany the CSHO during the 

physical inspection of the workplace if 

in the judgment of the CSHO, good 

cause has been shown why the third 

party’s accompaniment is reasonably 

necessary to the conduct of an effective 

and thorough inspection of the 

workplace (including, but not limited 

to, because of their relevant knowledge, 

skills, or experience with hazards or 

conditions in the workplace or similar 

workplaces, or language or 

communication skills). 

1. Comments That Supported Removing 

the CSHO’s ‘‘Good Cause’’ and 

‘‘Reasonably Necessary’’ Determination 

Requirement in Some Form 

A number of commenters asserted 

that OSHA should abandon the existing 

‘‘good cause’’ and ‘‘reasonably 

necessary’’ requirement for third-party 

employee representatives and adopt one 

of the proposed alternatives in the 

NPRM. For example, some commenters 

requested that OSHA pursue the first 

proposed alternative—removing the 

CSHO’s ‘‘reasonably necessary’’ 

determination, with the CSHO deferring 

entirely to the employees’ selection of a 

representative (e.g., Document ID 1023, 

p. 3; 1763, p. 5–6, 7–8; 1769, p. 4–5; 

1777, p. 3–4; 1934, p. 4–5; 1948, p. 2; 

1958, 8–9, 13; 1969, p. 2–8; 1972, p. 7– 

8; 1978, p. 1–2; 11231). According to 

these commenters, the ‘‘good cause’’ 

and ‘‘reasonably necessary’’ requirement 

is contrary to the text of the OSH Act, 

infringes upon workers’ rights, and 

impairs the Act’s safety and health 

goals. 

First, several commenters argued that 

the ‘‘good cause’’ and ‘‘reasonably 

necessary requirement’’ is contrary to 

the language of the OSH Act. For 

example, National COSH contended that 

requiring employees to demonstrate 

‘‘good cause’’ as to why a representative 

is ‘‘reasonably necessary’’ is an ‘‘extra 

hurdle the employees’ representative 

needs to clear before qualifying’’ that is 

not supported by the language of the Act 

(Document ID 1769, p. 5). According to 

National COSH, section 8 of the Act 

‘‘properly determines when the 

employees’ selected representative has a 

right to participate in the inspection: 

that is, when their purpose is to aid the 

inspection’’ (Document ID 1769, p. 5). 

Likewise, the AFL–CIO stated that 

‘‘[w]orkers’ belief that their chosen 

representative will support them is 

sufficient reason to find that the 

representative will aid the 

investigation’’ (Document ID 1969, p. 6). 

In the AFL–CIO’s view, ‘‘there is no 

distinction between deferring to 

workers’ choice of representatives and 

finding that the workers’ choice is 

reasonably necessary to aid the OSHA 

investigation’’ (Document ID 1969, p. 6). 

In addition, commenters argued that 

section 8 does not authorize CSHOs to 

decide whether good cause has been 

shown that a third-party employee 

representative is ‘‘reasonably 

necessary.’’ For example, Farmworker 


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Justice argued that employees’ right to a 

representative ‘‘should not depend on a 

determination by the CSHO’’ (Document 

ID 1763, p. 8). Additionally, the AFL– 

CIO asserted that ‘‘giving a CSHO 

discretion to exclude an employee’s 

third-party representative as not 

‘reasonably necessary’ is contrary to the 

plain terms of the Act’’ (Document ID 

1969, p. 3–4), and that ‘‘the Secretary 

does not have authority to impose 

limitations on employees’ rights that are 

inconsistent with the Act.’’ (Document 

ID 1969, p. 4). Similarly, National COSH 

argued that under section 8, employees’ 

selected representative has a right to 

participate in the inspection regardless 

of whether the representative’s 

‘‘participation is ‘reasonably necessary 

to the conduct of an effective and 

thorough inspection,’ as determined in 

the judgment of the CSHO’’ (Document 

ID 1769, p. 4). The AFL–CIO 

recommended that OSHA remove the 

‘‘good cause’’ and ‘‘reasonably 

necessary’’ requirement to ‘‘ensure that 

the full benefits of the workers’ choice 

is not limited by misinterpretation or 

CSHO variability, aligning with the 

purpose and language of the OSH Act’’ 

(Document ID 1969, p. 6). Similarly, Sur 

Legal Collaborative recommended 

‘‘OSHA remove the proposed language 

in 1903.8(c) that ‘in the judgment of the 

Compliance Safety and Health Officer, 

good cause’ must be shown’’ (Document 

ID 11231). Additionally, U.S. 

Representative Robert ‘‘Bobby’’ Scott 

advocated for an unqualified right for 

workers’ lawyers to act as 

‘‘representatives in all phases of OSHA 

inspection, enforcement, and contest’’ 

(Document ID 1931, p. 8). 

Second, various commenters 

contended that requiring good cause be 

shown that a third-party employee 

representative is ‘‘reasonably necessary’’ 

infringes upon workers’ rights by 

imposing a higher burden for employee 

representatives than for employer 

representatives. The AFL–CIO argued 

that although ‘‘the plain language of the 

Act places no greater restriction on who 

employees may choose as their 

representative than it does on who the 

employer may choose,’’ the ‘‘existing 

regulation and the new, proposed rule, 

on the other hand, only place 

restrictions on employees’ choice of 

representative, creating unequal access 

to the right granted both parties by the 

OSH Act’’ (Document ID 1969, p. 3) 

(emphasis omitted). Similarly, National 

Nurses United argued that because 

employers are not required to 

demonstrate ‘‘good cause’’ at ‘‘any part 

of the investigation process, OSHA 

should not require employees to justify 

their choice of representative’’ 

(Document ID 1777, p. 3). 

The American Federation of Teachers 

(AFT) argued that this language allows 

CSHOs too much discretion to reject a 

third-party representative that 

employees have selected and that 

disallowing third-party certified 

bargaining agents ‘‘is incongruent with 

rights secured by the [NLRA] or public 

sector labor relations laws’’ (Document 

ID 1957, p. 2). National COSH argued 

that OSHA should defer to employee 

choice because the ‘‘presence of a 

representative chosen by workers helps 

ensure workers can participate in the 

process without experiencing 

retaliation’’ (Document ID 1769, p. 3). 

According to National COSH, ‘‘when 

workers are accompanied by a trusted 

community, labor, or legal 

representative, they can more easily 

overcome the threat of retaliation and 

other barriers to give OSHA the 

information it needs for a 

comprehensive inspection’’ (Document 

ID 1769, p. 3). More generally, UFCW 

asserted that OSHA should defer to 

employee choice because ‘‘limiting the 

employee’s ability to choose 

representation for a matter as serious as 

an OSHA inspection is unfairly 

restrictive of the workers basic rights’’ 

(Document ID 1023, p. 3). 

Third, other commenters asserted that 

the inclusion of the ‘‘good cause’’ and 

‘‘reasonably necessary’’ requirement 

impairs the safety and health goals of 

the OSH Act. For example, the AFL–CIO 

stated that ‘‘[i]t is inarguable that worker 

participation improves OSHA 

investigations by increasing the CSHO’s 

knowledge of the workplace and 

hazards’’ and that ‘‘[w]orker 

participation is enhanced by the 

presence of a worker advocate through 

increasing trust, increasing knowledge 

and expertise, providing language 

justice, protecting workers from 

retaliation, and empowering workers in 

the investigation process to create a 

safer workplace’’ (Document ID 1969, p. 

6). 

In addition to commenters that 

supported eliminating the ‘‘good cause’’ 

and ‘‘reasonably necessary’’ requirement 

altogether, the Texas RioGrande Legal 

Aid (TRLA) supported the second 

alternative proposed in the NPRM and 

advocated for adding 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 

(Document ID 1749, p. 2). TRLA 

suggested that employers can rebut the 

presumption by ‘‘show[ing] good cause 

to the contrary’’ (Document ID 1749, p. 

2). 

Farmworker Justice supported the 

third alternative proposed in the NPRM, 

arguing that ‘‘OSHA should 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, and OSHA should defer to 

employees’ selection of a representative 

who would aid them in effectively 

exercising their rights’’ (Document ID 

1763, p. 8). The Strategic Organizing 

Center stated that no ‘‘additional criteria 

should be imposed on the workers’ 

process for selecting their 

representatives, nor on the CSHOs for 

interpreting or approving of that 

process’’ (Document ID 1978, p. 2). 

However, the Strategic Organizing 

Center stated that if OSHA were to 

adopt ‘‘any criteria regarding worker 

selection of representation, it should be 

used only to help inform workers of 

their right to choose a designee’’ 

(Document ID 1978, p. 3). 

2. Comments That Generally Supported 

Retaining the Existing ‘‘Good Cause’’ 

and ‘‘Reasonably Necessary’’ 

Requirement and Opposed the NPRM’s 

Alternatives 

In contrast, many commenters who 

were otherwise opposed to this rule 

responded that OSHA should not 

remove the ‘‘good cause’’ and 

‘‘reasonably necessary’’ requirement for 

a third party to accompany the CSHO 

during the walkaround (e.g., Document 

ID 1754, p. 2; 1762, p. 4–5; 1770, p. 3; 

1954, p. 5; 1966, p. 4–5; 1974, p. 5). 

Several commenters argued that the 

‘‘good cause’’ and ‘‘reasonably 

necessary’’ standard ensures that the 

third party has a legitimate inspection 

purpose for being on-site (see, e.g., 

Document ID 1762, p. 4–5; 1770, p. 3). 

For example, the American Petroleum 

Institute argued that the ‘‘good cause’’ 

and ‘‘reasonably necessary’’ requirement 

ensures that ‘‘the third party has a 

defined and accepted interest in the 

inspection,’’ which ‘‘help[s] reduce the 

risk of potential security issues their 

participation could raise’’ (Document ID 

1954, p. 5). The Chamber of Commerce 

stated that OSHA should retain the 

‘‘good cause’’ and ‘‘reasonably 

necessary’’ requirement because 

providing employees discretion to 

authorize any third-party as a 

representative ‘‘will turn OSHA 

inspections into an opportunity for 

individuals or groups with grievances or 

an agenda against the employer to 

advance their interests by gaining full 

access to the employer’s property’’ 

(Document ID 1952, p. 3). The 


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Employers Walkaround Representative 

Rulemaking Coalition also emphasized 

that because the purpose of a third-party 

representative is to aid the inspection, 

not to aid employees, OSHA should not 

defer to employee choice alone 

(Document ID 1976, p. 15–16). 

Some commenters supported 

retaining the existing the ‘‘good cause’’ 

and ‘‘reasonably necessary’’ requirement 

without modification (e.g., Document ID 

1974, p. 5), while other commenters had 

questions about how OSHA will 

determine whether good cause has been 

shown why employees’ chosen thirdparty representative is reasonably 

necessary and recommended that OSHA 

revise the requirement by providing 

further guidance (e.g., Document ID 

1762, p. 4–5; 1770, p. 4; 1775, p. 4–6; 

1776, p. 5–6; 1938, p. 2–3; 1954, p. 5; 

1956, p. 3–4; 1965, p. 11–16; 1974, p. 5– 

7; 1976, p. 11–14). 

Some of these commenters 

disapproved of the ‘‘discretion’’ 

afforded to CSHOs under the proposed 

rule and contended that the proposed 

rule lacked sufficient specificity and a 

‘‘defined process’’ to determine the 

employee representative (Document ID 

1976, p. 11–15; see also 0040, p. 4–5). 

For example, the State Policy Network 

contended that further guidance is 

necessary because ‘‘[t]he lack of 

measurable criteria, authoritative 

definitions, or concrete examples of 

what constitutes ‘good cause,’ ‘positive 

contribution,’ or ‘reasonably necessary’ 

delegates inappropriate and broad 

discretionary authority to the CSHO,’’ 

which it argued will ‘‘result[ ] in 

confusion, inconsistencies, potential 

financial and safety risks in workplaces, 

and overall uncertainty in the 

outworking of state plans’’ (Document 

ID 1965, p. 1, 11). 

Along the same lines, many 

commenters asserted that the vagueness 

of the ‘‘good cause’’ and ‘‘reasonably 

necessary’’ requirement will result in 

disparate application (e.g., Document ID 

1754, p. 2–3; 1762, p. 4–5; 1770, p. 4; 

1775, p. 6–8; 1776, p. 5–6; 1938, p. 2– 

3, 11; 1956, p. 2–4; 1965, p. 1, 11–16). 

For instance, the Coalition of Worker 

Safety expressed concern that the rule 

‘‘contains no mechanisms to enforce the 

‘good cause’ or ‘reasonably necessary’ 

requirements beyond the CSHO’s 

discretion,’’ which it contends ‘‘puts 

employers at the mercy of the CSHO’s 

unfettered subjective decision making 

about the meaning of ‘good cause’ or 

‘reasonable necessity’ [and] provides 

employers no recourse—aside from the 

warrant process—to challenge the 

CSHOs[’] determinations’’ (Document ID 

1938, p. 2). 

Commenters also critiqued a lack of 

employer input in the determination 

process (Document ID 1726, p. 3) or 

asked whether there was any oversight 

over OSHA’s inspections (Document ID 

0040, p. 4–5) and what ‘‘recourse [ ] a 

business owner h[as] to challenge the 

selection process’’ (Document ID 1771, 

p. 1). One individual critiqued the rule 

for ‘‘not provid[ing] any clear definition 

or rubric’’ for CSHOs to follow in their 

determinations (Document ID 11524). 

Some commenters, such as the National 

Association of Wholesaler-Distributors, 

expressed concern that CSHOs will be 

put ‘‘in a very unfair position’’ by an 

alleged lack of guidance in the proposed 

rule creating ‘‘additional burdens’’ on 

CSHOs which ‘‘are unrelated to their 

training and expertise’’ (Document ID 

1933, p. 3). Another individual 

commenter asserted that employers are 

‘‘at the mercy of the OSHA employees 

who will pick anyone they decide on’’ 

(Document ID 1116). Additionally, the 

State Policy Network submitted a report 

from the Boundary Line Foundation, 

which stated that the proposed rule 

‘‘neglects to provide direction to the 

CSHO in the event a proffered thirdparty employee representative is 

disqualified by the CSHO’’ (Document 

ID 1965, p. 15). This comment suggested 

incorporating section 8(e)’s language to 

‘‘consult with a reasonable number of 

[employees] concerning matters of 

health and safety in the workplace’’ 

where there is no authorized employee 

representative (Document ID 1965, p. 

15). 

Some commenters opposed the 

second alternative presented in the 

NPRM and stated that OSHA should not 

create a presumption that a third-party 

representative is reasonably necessary to 

aid an inspection. For example, the 

Employers Walkaround Representative 

Rulemaking Coalition argued that 

creating a presumption would ‘‘shift[ ] 

the burden of proof to the employer to 

show that an authorized representative 

is not reasonably necessary,’’ which 

they contended is not supported by the 

text of the Act (Document ID 1976, p. 

16). Labor Services International (LSI) 

argued that a presumption should not be 

added because it would result in 

increased complexity and a question of 

who is responsible to overcome the 

presumption—the employer or the 

CSHO (Document ID 1949, p. 4). 

Other commenters opposed the third 

alternative presented in the NPRM and 

stated that OSHA should not expand the 

criteria to allow for a third party to serve 

as employees’ walkaround 

representative when the CSHO 

determines that such participation 

would aid employees in effectively 

exercising their rights under the OSH 

Act (Document ID 1974, p. 5). For 

example, LSI argued that this alternative 

proposal is ‘‘superfluous’’ because ‘‘the 

existing version of 29 CFR 1903.8(c) 

affords employees a role in the 

inspection procedure’’ (Document ID 

1949, p. 4). 

3. Conclusion on the ‘‘Good Cause’’ and 

‘‘Reasonably Necessary’’ Requirement 

OSHA has considered all arguments 

in favor and against each of the options 

and has decided to retain the existing 

‘‘good cause’’ and ‘‘reasonably 

necessary’’ requirement in the final rule. 

Therefore, if the representative 

authorized by employees is a third 

party, the third party may accompany 

the CSHO during the physical 

inspection of the workplace if in the 

judgment of the CSHO, good cause has 

been shown why the third party’s 

accompaniment is reasonably necessary 

to the conduct of an effective and 

thorough inspection of the workplace 

(including, but not limited to, their 

relevant knowledge, skills, or 

experience with hazards or conditions 

in the workplace or similar workplaces, 

or language or communication skills). 

OSHA has determined that the 

existing ‘‘good cause’’ and ‘‘reasonably 

necessary’’ requirement continues to be 

the appropriate criteria for determining 

when a third-party will aid an 

inspection. This requirement is 

supported by the broad authority 

granted to the Secretary to promulgate 

rules and regulations related to 

inspections, investigations, and 

recordkeeping. See 29 U.S.C. 657(e), 

(g)(2); see also Section III, Legal 

Authority. As many commenters noted, 

the right of employees to authorize a 

representative to accompany them 

during the inspection of the workplace 

is qualified by the statutory requirement 

that the representative be authorized 

‘‘for the purpose of aiding such 

inspection.’’ 29 U.S.C. 657(e). In other 

words, an authorized employee 

representative may accompany the 

CSHO only for the purpose of aiding the 

inspection. The requirement for the 

CSHO to determine that ‘‘good cause’’ 

has been shown why the third party is 

‘‘reasonably necessary’’ to aid an 

effective and thorough inspection is 

consistent with the Act and ensures that 

an authorized representative aid in the 

inspection. See 29 U.S.C. 657(e), (g)(2). 

Thus, OSHA disagrees with commenters 

who suggested that OSHA lacks the 

authority to determine if a third party 

will aid an inspection. 

OSHA’s interpretation of section 8(e) 

as requiring a showing of good cause 

and reasonable necessity is consistent 


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with the authority vested in the CSHO 

and OSHA’s other longstanding 

regulations. CSHOs are ‘‘in charge of 

inspections’’ and ‘‘shall have authority 

to resolve all disputes as to who is the 

representative authorized by the 

employer and employees for the 

purpose of this section.’’ 29 CFR 

1903.8(a), (b). The Workplace Policy 

Institute stated that a third-party 

representative should only be ‘‘allowed 

on site when doing so will actually 

positively assist in the inspection, not 

simply because a third party wants to be 

there. The individual must have a 

reason for attending that is actually 

related to the inspection, and not some 

ulterior motive’’ (Document ID 1762, p. 

4–5). OSHA agrees and believes that the 

existing ‘‘good cause’’ and ‘‘reasonably 

necessary’’ requirement assures that this 

will be so. Third-party representatives 

are reasonably necessary if they will 

make a positive contribution to aid a 

thorough and effective inspection. 

While some commenters took issue 

with the terms ‘‘good cause,’’ 

‘‘reasonably necessary,’’ and ‘‘positive 

contribution,’’ OSHA notes that the 

‘‘good cause’’ and ‘‘reasonably 

necessary’’ requirement is a single 

requirement and OSHA does not intend 

the regulation to require a separate 

‘‘good cause’’ inquiry. OSHA considered 

deleting the term ‘‘good cause’’ from the 

regulation and using only the term 

‘‘reasonably necessary’’ as the criterion 

for determining whether a third party 

could accompany the CSHO. OSHA 

rejected that approach because it could 

lead to unnecessary confusion. OSHA 

has implemented the ‘‘good cause’’ and 

‘‘reasonably necessary’’ requirement, 

and it has been known to employees 

and employers, for more than fifty years. 

As such, OSHA finds no compelling 

reason to delete the term ‘‘good cause’’ 

from the revised regulation. Some 

commenters suggested that the ‘‘good 

cause’’ and ‘‘reasonably necessary’’ 

standard places a higher burden on 

third-party employee representatives 

than it does on third-party employer 

representatives. This is true, and OSHA 

has determined that a different standard 

is appropriate in the case of third-party 

employee representatives. As many 

commenters noted, the presence of such 

persons in the workplace raises property 

and privacy concerns that are not 

present where the employer has 

identified a third party as its 

representative. The ‘‘good cause’’ and 

‘‘reasonably necessary’’ requirement 

protects against impermissible 

infringement of these interests by 

ensuring that third-party employee 

representatives will be present only 

when they aid the inspection. And this 

requirement ensures that the third 

party’s presence meets the 

reasonableness requirements of the 

Fourth Amendment (see Section IV.D.2, 

Fourth Amendment Issues). These 

property and privacy concerns are not 

implicated where the employee 

representative is an employee, or when 

the employer selects a third party to 

represent it in the walkaround. 

Additionally, OSHA has determined 

that the ‘‘good cause’’ and ‘‘reasonably 

necessary’’ requirement does not 

infringe upon employee rights. 

Although some commenters asserted 

that this language gives CSHOs too 

much discretion to reject employees’ 

third-party representative, including 

one who is the recognized bargaining 

agent (such as from a union’s national 

or international office), CSHOs have the 

expertise and judgment necessary to 

determine, on an inspection-byinspection basis, whether a third party 

will aid OSHA’s inspection. Moreover, 

several unions provided examples 

where representatives from the national 

or international union were permitted to 

accompany the CSHO and aided the 

inspection (see, e.g., Document ID 1761, 

p. 1; Document ID 1958, p. 3–8). While 

CSHOs have the authority to deny the 

right of accompaniment to any 

representative that interferes with—and 

thus does not aid—the inspection, (see 

29 CFR 1903.8(d)), OSHA anticipates 

that third-party recognized bargaining 

agents in a unionized workplace would 

generally be ‘‘reasonably necessary’’ to 

the inspection. Cf. OSHA Field 

Operations Manual, Chapter 3, Section 

VII.A.1 (explaining that ‘‘the highest 

ranking union official or union 

employee representative onsite shall 

designate who will participate in the 

walkaround’’). OSHA’s discussion of 

how this rule interacts with the NLRA 

is explained in detail in Section IV.E, 

National Labor Relations Act and Other 

Labor-Related Comments. Accordingly, 

OSHA does not believe that the ‘‘good 

cause’’ and ‘‘reasonably necessary’’ 

requirement infringes upon or is in 

tension with employee rights under the 

NLRA or public sector labor relations 

laws. 

Likewise, OSHA disagrees with 

comments that there should be a rubric 

for CSHOs to follow in making their 

determination or that CSHOs need a 

defined process to determine whether 

good cause has been shown that a thirdparty walkaround representative is 

reasonably necessary. The statute 

provides that an employee 

representative is allowed if they aid the 

inspection. And the regulation provides 

further explanation of how OSHA will 

implement that requirement. The 

regulation contains factors for the CSHO 

to consider in making the ‘‘good cause’’ 

and ‘‘reasonably necessary’’ 

determination, and the preamble 

describes numerous examples of the 

types of third parties who have made a 

positive contribution to OSHA’s 

inspections. Accordingly, OSHA rejects 

the argument that the ‘‘good cause’’ and 

‘‘reasonably necessary’’ requirement is 

too subjective, will result in disparate 

application, or that a rubric or defined 

process for determining whether a 

representative is reasonably necessary 

would be appropriate. 

The OSH Act grants employees the 

right to a walkaround representative 

‘‘for the purpose of aiding such 

inspection.’’ 29 U.S.C. 657(e). As 

explained above, OSHA has determined 

that third parties can aid OSHA’s 

inspections in a variety of different 

scenarios. However, not all third-party 

representatives will necessarily aid 

OSHA’s inspection simply because 

employees have selected the individual. 

Several commenters raised concerns 

that some individuals may have 

motivations unrelated to safety or the 

inspection, such as unionizing a facility 

or ‘‘looking for lawsuit opportunities’’ 

(Document ID 1953, p. 5; see also 1775, 

p. 7–8; 1938, p. 2–3; 1975, p. 18–21). 

Maintaining the ‘‘good cause’’ and 

‘‘reasonably necessary’’ requirement 

ensures that OSHA’s inspection 

comports with section 8(e) of the OSH 

Act because the CSHO has determined 

that the representative will in fact aid 

the inspection. As such, this 

requirement does not conflict with the 

text of the Act or undermine the goals 

of the Act. 

Contrary to several commenters’ 

claims, the ‘‘good cause’’ and 

‘‘reasonably necessary’’ requirement 

does not place a high burden on 

employees. Rather, the CSHO will 

determine whether a representative is 

reasonably necessary. To determine 

whether ‘‘good cause’’ has been 

established why a third-party 

representative is ‘‘reasonably 

necessary,’’ the CSHO will inquire about 

how and why the representative will 

benefit the inspection, such as because 

of the representative’s knowledge, skills, 

or experience with hazards or 

conditions in the workplace or similar 

workplaces, relevant language skills, or 

other reasons that the representative 

would facilitate communication with 

employees, such as their cultural 

competency or relationship with 

employees. For example, this may 

include the representative’s familiarity 

with the machinery, work processes, or 

hazards that are present in the 


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workplace, any specialized safety and 

health expertise, or the language or 

communication skills they have that 

would aid in the inspection. The CSHO 

will speak with employees and the 

employees’ walkaround representative 

to determine whether good cause has 

been shown that the representative is 

reasonably necessary. This requirement 

is not a ‘‘hurdle’’ that employees must 

overcome, but rather better enables 

OSHA to ensure that a third-party 

employee representative will aid 

OSHA’s inspection. 

While the State Policy Network 

suggested additional guidance to CSHOs 

in the event a proffered third-party 

employee representative is disqualified 

by the CSHO (Document ID 1965, p. 16– 

17), this suggestion is unnecessary. 

Section 1903.8(b) already instructs 

CSHOs what to do if there is no 

authorized employee representative or 

the CSHO cannot determine who is the 

authorized employee representative 

with reasonable certainty. See 29 CFR 

1903.8(b) (‘‘If there is no authorized 

representative of employees, or if the 

Compliance Safety and Health Officer is 

unable to determine with reasonable 

certainty who is such representative, he 

shall consult with a reasonable number 

of employees concerning matters of 

safety and health in the workplace.’’). 

OSHA concludes that retaining the 

existing requirement also strikes the 

appropriate balance between workers’ 

rights and employers’ property and 

privacy concerns. Employees, like 

employers, have a statutory right to a 

representative to aid in the inspection. 

See 29 U.S.C. 657(e). OSHA has 

determined that this requirement 

enables sufficient flexibility for OSHA 

to realize the potential benefits that 

third parties may provide to an 

inspection while remaining consistent 

with Fourth Amendment reasonableness 

requirements. If a third-party 

representative engages in activity 

unrelated to the inspection, OSHA will 

attempt to resolve any potentially 

interfering conduct and retains the 

authority to deny individuals the right 

of accompaniment if their conduct 

‘‘interferes with a fair and orderly 

inspection.’’ 29 CFR 1903.8(d). 

Finally, it is OSHA’s intent that the 

general presumption of severability 

should be applied to this regulation; i.e., 

if any portion of the regulation is held 

invalid or unenforceable or is stayed or 

enjoined by any court of competent 

jurisdiction, the remaining portion 

remains workable and should remain 

effective and operative. It is OSHA’s 

intent that all portions be considered 

severable. In this regard, the agency 

intends that: (1) in the event that any 

portion of the regulation is stayed, 

enjoined, or invalidated, all remaining 

portions of the regulation shall remain 

effective and operative; and (2) in the 

event that any application of the 

regulation is stayed, enjoined, or 

invalidated, the regulation shall be 

construed so as to continue to give the 

maximum effect to the provision 

permitted by law. 

C. Role of the Employee Representative 

in the Inspection 

In response to comments received, 

OSHA has slightly revised the 

regulatory text in the final rule. OSHA’s 

proposed revision to section 1903.8(c) 

stated that a third party representative 

could accompany the CSHO 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).’’ 88 FR 59833–34. 

The use of the word ‘‘participation’’ 

in the proposed regulation prompted 

several commenters to question whether 

the term reflected a change in the role 

served by the employee representative 

(see, e.g., Document ID 1781, p. 2–3; 

1941, p. 5; 1964, p. 3; 1974, p. 3–4), 

while a number of commenters observed 

that the revision could overly broaden 

the role of third-party representatives 

(see, e.g., Document ID 1964, p. 3–4; 

1974, p. 3; 1976, p. 21; 6991). Other 

commenters described scenarios in 

which third-party representatives could 

take advantage of ambiguity resulting 

from the revision by performing acts not 

authorized by the OSH Act, i.e., acts that 

do not aid the inspection (see, e.g., 

Document ID 1755, p. 1; 1964, p. 4; 

1974, p. 3–4; 1976, p. 5; 6991). 

Some commenters expressed concern 

that the revision could permit 

representatives to participate in private 

employee or management interviews, 

independently interview employees, or 

gain unauthorized access to employers’ 

private records (see, e.g., Document ID 

1765, p. 2; 1774, p. 6; 1964, p. 3–4; 

1976, p. 5). Commenters also opposed 

allowing representatives to make 

unauthorized image, video, or audio 

recordings during inspections and to 

use such recordings for purposes other 

than furthering the inspection (see, e.g., 

Document ID 1762, p. 5; 1774, p. 6; 

1966, p. 2). Relatedly, one commenter 

suggested that employee representatives 

should be subject to nondisclosure 

requirements and only be allowed to 

share information with CSHOs 

(Document ID 8120). Commenters 

further asked whether third-party 

employee representatives could 

‘‘weigh[ ] in with their own 

commentary,’’ and ‘‘opin[e] on what is 

and is not safe,’’ (Document ID 1762, p. 

5). Additionally, the Office of Advocacy 

of the U.S. Small Business 

Administration asked what 

‘‘participation’’ would entail and how it 

would affect small entities (Document 

ID 1941, p. 5). 

While the terms ‘‘participate’’ and 

‘‘accompany’’ are often used 

interchangeably in discussing employee 

walkaround rights (see, e.g., OSHA 

Field Operations Manual, CPL 02–00– 

164, Chapter 3, Sections IV.D; VII.A), 

OSHA did not intend to change the role 

of the walkaround representative. Based 

on stakeholder comments, OSHA has 

determined that using the term 

‘‘accompaniment’’ rather than 

‘‘participation’’ maintains consistency 

with the OSH Act and other related 

OSHA regulations. See, e.g., 29 U.S.C. 

657(e); 29 CFR 1903.4 (establishing 

procedures upon objection to an 

inspection, including upon refusal to 

permit an employee representative to 

accompany the CSHO during the 

physical inspection of a workplace in 

accordance with 29 CFR 1903.8); 29 

CFR 1908.6 (explaining procedures 

during an onsite consultative visit for an 

employee representative of affected 

employees to accompany the consultant 

and the employer’s representative 

during the physical inspection of a 

workplace); 29 CFR 1960.27 (providing 

that a representative of employees shall 

be given an opportunity to accompany 

CSHOs during the physical inspection 

of any workplace, and that a CSHO may 

deny the representative’s right of 

accompaniment if their participation 

interferes with a fair and orderly 

inspection). Accordingly, OSHA has 

removed the term ‘‘participation’’ in the 

final rule to clarify that the employee 

representative may accompany the 

CSHO when good cause has been shown 

why ‘‘accompaniment’’ is reasonably 

necessary to an effective and thorough 

workplace inspection. 

OSHA received many comments 

related to what a third-party 

representative can or cannot do during 

the inspection (see, e.g., Document ID 

0234, p. 1–2; 1935, p. 1; 1937, p. 1, 4– 

5; 1938, p. 2–6). This rulemaking does 

not change the role of the third-party 

representative authorized by employees; 

the representative’s role is to 

accompany the CSHO for the purpose of 

aiding OSHA’s physical inspection of 

the workplace. The representative is 

permitted to accompany the CSHO 


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during the walkaround inspection, 

attend the opening and closing 

conferences (see OSHA Field 

Operations Manual, CPL 02–00–164, 

Chapter 3, Sections V.A, VII.A, and 

VIII.A), and ask clarifying questions to 

ensure understanding of a specific item 

or topic of discussion. While the 

representative may informally ask 

clarifying questions during the 

walkaround, private employees 

interviews conducted during the 

inspection are conducted by the CSHO 

in private unless the employee requests 

the presence of the representative. 

One commenter urged that OSHA 

ensure that the third-party walkaround 

representative not be allowed to review 

physical and electronic records, 

including procedures, injury and illness 

logs, diagrams, emergency plans, and 

floor plans, along with the CSHO 

(Document ID 1765, p. 2). Although 

CSHOs may preliminarily review 

employer-provided documents such as 

safety and health manuals or injury and 

illness records during the walkaround 

inspection, in-depth review typically 

occurs away from the inspected 

worksite. However, this rule does not 

alter in any way the requirement that 

employers provide access to injury and 

illness records to ‘‘employees, former 

employees, their personal 

representatives, and their authorized 

employee representatives,’’ as those 

terms are defined in OSHA’s 

Recordkeeping and Reporting regulation 

(29 CFR 1904.35). Additionally, the 

third-party representative may review 

records that relate to work processes, 

equipment, or machines at the CSHO’s 

discretion if their review during the 

walkaround will aid the CSHO’s 

inspection. 

Further, during an inspection, the 

CSHO will ensure an employee 

representative’s conduct does not 

interfere with a fair and orderly 

inspection. OSHA considers conduct 

that interferes with the inspection to 

include any activity not directly related 

to conducting an effective and thorough 

physical inspection of the workplace. 

OSHA Field Operations Manual, CPL 

02–00–164, Chapter 3, Section VII.A. 

The FOM instructs the CSHO to advise 

the employee representative that, during 

the inspection, matters unrelated to the 

inspection shall not be discussed with 

employees. See OSHA Field Operations 

Manual, CPL 02–00–164, Chapter 3, 

Section V.E. Under section 1903.8(d), a 

CSHO may deny a representative the 

right to accompany the CSHO on an 

inspection if their conduct interferes 

with a fair and orderly inspection. Last, 

matters concerning the authorized 

representative’s conduct outside the 

walkaround inspection is beyond the 

scope of this regulation or this 

rulemaking, and OSHA declines to add 

a nondisclosure requirement or other 

limitations to the sharing of 

information. 

D. Constitutional Issues 

1. First Amendment Issues 

OSHA received several hundred 

comments asserting that this rule could 

adversely affect religious liberty, such as 

by permitting someone opposed to a 

church to be a third-party employee 

representative (see, e.g., Document ID 

1076; 1151; 1724; 1739; 6800). Other 

commenters suggested that churches 

should not be inspected (see, e.g., 

Document ID 1360). OSHA believes that 

the concerns expressed in these 

comments are unfounded. 

First, under this rule and pursuant to 

the OSH Act, any third-party employee 

representative must be authorized by 

the employees. Employees do not have 

to designate a third-party representative 

if they do not want to. Thus, only a 

third party selected by the employees of 

the church or other religious 

organization will be eligible to 

accompany the CSHO on the inspection. 

Second, a third-party employee 

representative may accompany the 

CSHO only if the CSHO concludes that 

good cause has been shown that the 

third party is ‘‘reasonably necessary’’ to 

conduct a thorough and effective 

inspection. Third, the CSHO has the 

authority to deny the right of 

accompaniment to any third-party 

employee representative ‘‘whose 

conduct interferes with a fair and 

orderly inspection.’’ 29 CFR 1903.8(d). 

While OSHA accommodates religious 

practices in carrying out its 

responsibilities under the OSH Act, see, 

e.g., OSHA Exemption for Religious 

Reason from Wearing Hard Hats, STD 

01–06–005 (1994), available at https://

www.osha.gov/enforcement/directives/ 

std-01-06-005; Sikh American Legal 

Defense and Education Fund, OSHA 

Interpretive Letter (Aug. 5, 2011), 

available at https://www.osha.gov/lawsregs/standardinterpretations/2011-08- 

05, coverage of religious institutions is 

not at issue in this rulemaking. OSHA 

does conduct inspections at religious 

worksites, see, e.g., Absolute Roofing & 

Constr., Inc. v. Sec’y of Labor, 580 F. 

App’x 357, 359 (6th Cir. 2014) 

(involving OSHA’s inspection of a 

jobsite where a worker was injured 

while performing repair work on a 

church), but for the reasons stated above 

OSHA finds that this rule does not 

adversely affect religious liberty or 

change OSHA’s long-exercised authority 

to do so. 

Additionally, OSHA received a few 

comments asserting that this rule 

infringed on free speech rights (see, e.g., 

Document ID 1754, p. 2; 8781). 

However, these commenters did not 

explain why or how this rule limits free 

speech. This rule neither requires nor 

prohibits speech, and OSHA finds no 

merit to the argument that it limits the 

First Amendment right to freedom of 

speech. 

2. Fourth Amendment Issues 

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), there 

are constitutional and statutory 

components of reasonableness that an 

OSHA inspection must satisfy. The 

Fourth Amendment of the U.S. 

Constitution protects employers against 

‘‘unreasonable searches and seizures.’’ 

See U.S. Const. amend. IV; Barlow’s, 

436 U.S. 311–12. Under Barlow’s, a 

warrant is constitutionally necessary for 

nonconsensual OSHA inspections and, 

therefore, if an employer refuses entry, 

OSHA must obtain a warrant to proceed 

with the inspection. 436 U.S. at 320–21; 

see also 29 CFR 1903.4. Contrary to the 

concerns expressed by the Pacific Legal 

Foundation (Document ID 1768, p. 6–7), 

this rule will not disturb employers’ 

right under the Fourth Amendment, 

including their right to withhold or 

limit the scope of their consent, and 

employers will not be subject to a 

citation and penalty for objecting to a 

particular third-party representative. 

Moreover, both the Fourth Amendment 

and section 8(a) of the OSH Act require 

that OSHA carry out its inspection in a 

reasonable manner. See, e.g., L.R. 

Willson & Sons, Inc. v. OSHRC, 134 

F.3d 1235, 1239 (4th Cir. 1998); 

Donovan v. Enter. Foundry, Inc., 751 

F.2d 30, 36 (1st Cir. 1984). Indeed, 

section 8(a) of the Act requires that 

OSHA’s on-site inspections be 

conducted at ‘‘reasonable times, and 

within reasonable limits and in a 

reasonable manner.’’ 29 U.S.C. 657(a)(2). 

Some commenters have argued that 

allowing a third-party employee 

representative to accompany OSHA 

during its physical inspection of a 

workplace would not be a ‘‘reasonable’’ 

search under the Fourth Amendment 

(see, e.g., Document ID 1976, p. 19). For 

example, some commenters have 

asserted that the rule will force them to 

admit any third-party representative 

onto their property (see, e.g., Document 

ID 1976, p. 21; Document ID 1952, p. 3) 

with others arguing that OSHA is 


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attempting to create a ‘‘new . . . right’’ 

for third parties to access private 

property (see, e.g., Document ID 1952, p. 

8). However, as an initial matter, the 

purpose of the Fourth Amendment is 

‘‘to safeguard the privacy and security of 

individuals against arbitrary Invasions 

by government officials.’’ Camara v. 

Mun. Ct. of City & Cnty. of San 

Francisco, 387 U.S. 523, 528 (1967) 

(emphasis added). Third-party 

employee representatives are not 

governmental officials and are not 

performing their own searches. Their 

presence on the employer’s premises— 

consistent with the terms of Section 

8(e)—will be limited to aiding OSHA’s 

inspection (i.e., search). Additionally, 

this rule does not create any new rights; 

instead, it simply clarifies the alreadyexisting right that employees have 

under section 8(e) of the OSH Act to 

select authorized representatives for 

OSHA’s walkaround inspection. 

The reasonableness of OSHA’s search 

will initially turn on whether OSHA 

had administrative probable cause to 

initiate the inspection in the first place 

(such as responding to a complaint or 

conducting a programmed inspection). 

See Barlow’s, 436 U.S. at 320–21. Where 

the government has sought and obtained 

a search warrant supported by probable 

cause and acted within its scope, the 

resulting search is presumptively 

reasonable. See Sims, 885 F.3d at 268. 

This rule does not diminish or alter the 

legal grounds that are required for 

OSHA to initiate an on-site inspection. 

Instead, it merely clarifies the type of 

employee representative who can 

accompany OSHA during a lawful 

inspection. 

Additionally, this rule, as well as 

OSHA’s existing regulations concerning 

the conduct of inspections, provides 

sufficient administrative safeguards to 

ensure the reasonableness of OSHA’s 

inspections, even when a private party 

accompanies the CSHO during the 

walkaround inspection. See Matter of 

Establishment Inspection of Caterpillar 

Inc., 55 F.3d at 339. For instance, the 

rule maintains the provision that the 

CSHO must first determine good cause 

has been shown why accompaniment by 

a third party is reasonably necessary to 

an effective and thorough physical 

inspection of the workplace. 29 CFR 

1903.8(c). This rule also does not 

diminish or alter administrative 

safeguards contained in other OSHA 

regulations. For instance, CSHOs still 

have the authority to resolve all 

disputes about who the authorized 

employee representatives are and to 

deny the right of accompaniment to any 

person whose conduct interferes with a 

fair and orderly inspection. 29 CFR 

1903.8(b), (d). Section 1903.7(d) also 

mandates that ‘‘[t]he conduct of 

inspections shall be such as to preclude 

unreasonable disruption of the 

operations of the employer’s 

establishment.’’ 29 CFR 1903.7(d). 

Furthermore, employers have the right 

to identify areas in the workplace that 

contain or might reveal a trade secret, 

and may request that, in any area 

containing trade secrets, the authorized 

employee representative shall be an 

employee in that area or an employee 

authorized by the employer to enter that 

area. See 29 CFR 1903.9(c), (d). 

In the NPRM, OSHA sought comment 

on whether it should 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. 88 FR 59833. In response, 

the Employers Walkaround 

Representative Rulemaking Coalition 

commented that ‘‘[r]emoving the current 

constraints on third party involvement 

in OSHA inspections or permitting the 

participation of a third party not 

deemed ‘reasonably necessary’ . . . 

would contravene the Fourth 

Amendment’s prohibition against 

unreasonable searches and seizures’’ 

(Document ID 1976, p. 19). The 

Employers Walkaround Representative 

Rulemaking Coalition noted that in the 

criminal law context, the government 

violates the Fourth Amendment when it 

permits private parties with no 

legitimate role in the execution of a 

warrant to accompany an officer during 

the search (Document ID 1976, p. 19– 

20). As an initial matter, the 

requirements of administrative probable 

cause for OSHA inspections are less 

stringent than those governing criminal 

probable cause. Barlow’s, 436 U.S. at 

320–21. Moreover, as explained in 

Section IV.B, The ‘‘Good Cause’’ and 

‘‘Reasonably Necessary’’ Requirement, 

OSHA has retained the requirement that 

the CSHO first determine that good 

cause has been shown that 

accompaniment by a third-party is 

reasonably necessary to an effective and 

thorough inspection. 

Indeed, criminal law cases 

demonstrate that third parties may aid 

or assist the government official in their 

investigation. For example, criminal law 

provides that a search warrant must be 

served and executed by an officer 

mentioned therein and by no other 

person ‘‘except in aid of the officer’’ 

executing the warrant. 18 U.S.C. 3105; 

see also Wilson v. Layne, 526 U.S. 603 

(1999). In Wilson v. Layne, the Supreme 

Court held that ‘‘although the presence 

of third parties during the execution of 

a warrant may in some circumstances be 

constitutionally permissible,’’ the 

presence of a news crew during the 

execution of an arrest warrant at a 

defendant’s home was unconstitutional. 

526 U.S. at 613–14. The Court reasoned 

that the Fourth Amendment requires 

that police actions in execution of a 

warrant be related to the objectives of 

the authorized intrusion and because 

the news crew was on the premises to 

advance their own private purposes 

(and not to assist the police) their 

presence in defendant’s home was 

unreasonable. Id. at 611–12. In other 

cases involving third parties who are 

involved in police searches, courts have 

similarly held that ‘‘the civilian’s role 

must be to aid the efforts of the police. 

In other words, civilians cannot be 

present simply to further their own 

goals.’’ United States v. Sparks, 265 

F.3d 825, 831–32 (9th Cir. 2001), 

overruled on other grounds by United 

States v. Grisel, 488 F.3d 844 (9th Cir. 

2007). 

The criminal caselaw also contains 

examples of searches involving third 

parties that courts have found to be 

reasonable under the Fourth 

Amendment. For instance, in Sparks, 

the court found reasonable a warrantless 

search conducted with the aid of a 

civilian, in part, because the police 

officer was in need of assistance. 265 

F.3d at 831–32. Similarly, in United 

States v. Clouston, the court held that 

the presence of the telephone company 

employees during the execution of a 

search warrant was reasonable where 

the telephone company employees were 

present on the premises to aid officers 

in identifying certain electronic devices 

owned by their employer and their role 

in the search was limited to identifying 

such property. 623 F.2d 485, 486–87 

(6th Cir. 1980). Like in the foregoing 

cases, OSHA’s rule—consistent with the 

plain text of the statute—also requires 

third-party employee representatives to 

benefit the inspection. Accordingly, the 

rule will maintain the language in the 

regulation that requires that good cause 

be shown why the third-party 

representative’s accompaniment is 

reasonably necessary to the conduct of 

an effective and thorough physical 

inspection of the workplace. 

The Employers Walkaround 

Representative Rulemaking Coalition 

also expressed concern that ‘‘absent the 

possession of some technical expertise 

lacking in the CSHO and necessary to 

the physical inspection of the 

workplace, the presence of a third party 

outsider (e.g., union organizer, 

plaintiff’s attorney, etc.) with no 

connection to the workplace and acting 

in his own interests violates the Fourth 

Amendment’s prohibition against 


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unreasonable searches and seizures’’ 

(Document ID 1976, p. 21). The purpose 

of this rule is 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. For third-party 

representatives, the rule will require a 

showing of ‘‘good cause’’ for why they 

are reasonably necessary to the conduct 

of an effective and thorough physical 

inspection of the workplace (including, 

but not limited to, because of their 

relevant knowledge, skills, or 

experience with hazards or conditions 

in the workplace or similar workplaces, 

or language or communication skills). 

OSHA has determined that this rule best 

effectuates the text and purpose of 

section 8(e) of the Act, consistent with 

Fourth Amendment reasonableness 

requirements, without imposing an 

overly burdensome and restrictive 

‘‘technical expertise’’ requirement on 

employees who want a representative to 

accompany the CSHO during an 

inspection of their workplace. 

The Ohio Manufacturers’ Association 

expressed concern that the rule will 

‘‘expand the plain view doctrine’’ and 

‘‘convert a targeted inspection based on 

a complaint to an unnecessarily 

comprehensive and time-consuming 

‘wall-to-wall’ inspection’’ because the 

third party will ‘‘constantly scan other 

parts of the employer’s facility to find 

potential violations of the OSH Act’’ 

(Document 0040, p. 3). The Chamber of 

Commerce also asked whether employee 

representatives’ observations could 

satisfy the ‘‘plain view’’ doctrine 

(Document ID 1952, p. 14). On the other 

hand, the National Council for 

Occupational Safety and Health and the 

Sur Legal Collaborative asserted that 

some employers have attempted to limit 

the scope of OSHA inspections by 

preventing CSHOs from seeing hazards 

that are otherwise in plain view and 

noted that employee representatives can 

point out other areas in the worksite 

where there are hazards (Document ID 

1769, p. 2; 11231). Similarly, Worksafe 

described an inspection in California 

where the Cal/OSHA inspector did not 

observe areas where janitorial 

employees worked with bloodborne 

pathogens and did not inspect a garbage 

compactor that had serious mechanical 

failure because the employer was able to 

obscure the hazardous conditions 

(Document ID 1934, p. 3–4). Had 

Worksafe not intervened by sending 

Cal/OSHA videos and photos of the 

hazards, these hazards could have gone 

unabated, and employees could have 

been seriously injured, become ill, or 

died on the job (Document ID 1934, p. 

4). 

The ‘‘plain view’’ doctrine allows the 

warrantless ‘‘seizure’’ of evidence 

visible to a government official or any 

member of the general public while they 

are located where they are lawfully 

allowed. Wilson v. Health & Hosp. Corp. 

Of Marion Cnty., 620 F.2d 1201, 1210 

(7th Cir. 1980). The rationale of the 

plain view doctrine is that once 

evidence is ‘‘in open view’’ and is 

observed by the government or a 

member of the public from a lawful 

vantage point, ‘‘there has been no 

invasion of a legitimate expectation of 

privacy’’ and thus the Fourth 

Amendment’s privacy protections do 

not apply. Minnesota v. Dickerson, 508 

U.S. 366, 375 (1993); see also Donovan 

v. A.A. Beiro Const. Co., Inc., 746 F.2d 

894, 903 (D.C. Cir. 1984). Hence, thirdparty representatives may lawfully aid 

the inspection by informing the CSHO 

about hazards they observe in plain 

view during the walkaround. However, 

the authority to inspect areas in plain 

view ‘‘does not automatically extend to 

the interiors of every enclosed space 

within the area.’’ A.A. Beiro Const. Co., 

746 F.2d at 903. Because their role is to 

aid in ‘‘the conduct of an effective and 

thorough physical inspection of the 

workplace,’’ 29 CFR 1903.8(c), the thirdparty representative is only permitted to 

accompany the CSHO, and they are not 

permitted to stray from the CSHO or to 

conduct their own searches. 

Moreover, the Ohio Manufacturers’ 

Association’s concerns about the 

inspection becoming a ‘‘wall to wall’’ 

inspection are overstated. The CSHO 

will conduct the walkaround inspection 

in accordance with the law and FOM 

and will inspect those areas where there 

are reasonable grounds to believe a 

violation could be found. Generally, 

OSHA conducts unprogrammed 

inspections (i.e., inspections resulting 

from an employee complaint, referral, 

reported accident or incident) as partial 

inspections, which are limited to the 

specific work areas, operations, 

conditions, or practices forming the 

basis of the unprogrammed inspection. 

As explained in the FOM, however, the 

scope of an OSHA inspection can be 

expanded for a number of reasons, 

including employee interviews, among 

other reasons. OSHA Field Operations 

Manual, (CPL 02–00–164), Chapter 3, 

Section III.B.2. Hence, just like 

employee representatives employed by 

the employer, third-party employee 

representatives may communicate to the 

CSHO conditions they are aware of or 

observe in plain view while 

accompanying the CSHO on the 

walkaround inspection. ‘‘The 

effectiveness of OSHA inspections 

would be largely eviscerated if 

compliance officers are not given some 

nominal right to follow up on 

observations of potential violations.’’ 

A.A. Beiro Const. Co., 746 F.2d at 903. 

Several comments also expressed 

concern that the rule would violate state 

laws against trespassing (see, e.g., 

Document ID 1780, p. 2; 1938, p. 6–7). 

For example, the Coalition for 

Workplace Safety cited the ‘‘localinterest exception’’ to the NLRA in 

arguing that state trespass laws allow 

employers to exclude individuals from 

their property (Document ID 1938, p. 6– 

7). The local-interest exception allows 

states to regulate certain conduct that is 

arguably NLRA-protected without being 

preempted by the NLRA. See Loc. 926 

Int’l Union of Operating Eng’rs v. Jones, 

460 U.S. 669, 676 (1983). This exception 

typically applies when the state 

regulates ‘‘threats to public order such 

as violence, threats of violence, 

intimidation and destruction of property 

[or] acts of trespass.’’ See Pa. Nurses 

Ass’n v. Pa State Educ. Ass’n, 90 F.3d 

797, 803 (3d Cir. 1996) (collecting 

cases). These cases are inapposite here 

both because they do not arise under the 

OSH Act and deal solely with the 

actions of private parties such as labor 

organizations. 

Under the final rule, an authorized 

employee representative would 

accompany the CSHO, a government 

official, for the purpose of aiding a 

lawful inspection under the OSH Act. 

Moreover, courts apply the local-interest 

exception when, among other factors, 

the conduct at issue is only a 

‘‘peripheral concern’’ of the NLRA. See 

Loc. 926, 460 U.S. at 676. Application 

of the exception here with respect to the 

OSH Act would be inappropriate 

because the right under section 8(e) for 

an authorized employee representative 

to accompany the CSHO is intended to 

increase the effectiveness of the 

walkaround inspection, an essential 

element of the OSH Act’s enforcement 

scheme. Thus it is ‘‘one of the key 

provisions’’ of the Act. See Subcomm. 

on Lab. of the S. Comm. on Lab. and 

Pub. Welfare, 92d Cong. 1st Sess., 

reprinted in Legislative History of the 

Occupational Safety and Health Act of 

1970, at 430 (Comm. Print 1971). 

3. Fifth Amendment Issues 

Some commenters argued that the 

rule constitutes a per se taking under 

the Fifth Amendment by allowing 

employee representatives to be nonemployees (see, e.g., Document ID 0043, 

p. 2–4; 0168, p. 3–4; 1768, p. 7–8; 1779, 

p. 2–3; 1952, p. 8–9; 1976, p. 18). These 


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commenters asserted that the rule will 

deny employers the right to exclude 

unwanted third parties from their 

property (see, e.g., Document ID 0043, p. 

3; 1952, p. 8–9; 1976, p. 18). Under the 

Fifth Amendment’s Takings Clause, the 

government must provide just 

compensation to a property owner when 

the government physically acquires 

private property for a public use. See 

Tahoe-Sierra Pres. Council, 535 U.S. at 

321. However, the Supreme Court has 

recognized that ‘‘[b]ecause a property 

owner traditionally [has] 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.’’ Cedar Point Nursery, 141 

S. Ct. at 2079. Despite this important 

distinction, commenters raised various 

arguments in support of their assertion 

that a taking will occur, focusing on the 

identity of the employee representative 

and the nature of their activity onsite. 

For example, some commenters 

asserted that a per se taking would 

occur because the rule authorizes a third 

party who is not a government official 

to access private property (see, e.g., 

Document ID 0168, p. 3–4; 1952, p. 8– 

9; 1976, p. 18). OSHA’s rule provides 

that employees can select either a third 

party or another employee of the 

employer to accompany the CSHO. 

However, only the CSHO, as the 

government official, will conduct the 

inspection. Contrary to the argument 

made by some commenters (see, e.g., 

Document ID 1768, p. 8), OSHA is not 

delegating its inspection authority to 

third parties. The purpose of employee 

and employer representation during the 

walkaround is to aid—not conduct— 

OSHA’s inspection. See 29 U.S.C. 

657(e). If OSHA is engaged in a 

reasonable search under the Fourth 

Amendment, the mere presence of such 

a third-party employee representative 

does not result in a taking. See Bills, 958 

F.2d at 703 (noting that a third party’s 

entry onto subject’s private property 

may be ‘‘justified if he had been present 

to assist the local officers’’). 

Other commenters argued that the 

rule conflicts with the Supreme Court’s 

decision in Cedar Point Nursery because 

it would allow union representatives to 

accompany the CSHO (see, e.g., 

Document ID 0043, p. 2–3; 1952, p. 8– 

9; 1976, p. 18–19). In Cedar Point 

Nursery, the Supreme Court invalidated 

a California regulation that granted labor 

organizations a ‘‘right to take access’’ to 

an agricultural employer’s property for 

the sole purpose of soliciting support for 

unionization. 141 S. Ct. at 2069, 2080. 

The Supreme Court held that the 

regulation appropriated a right to invade 

the growers’ property and therefore 

constituted a per se physical taking. Id. 

at 2072. The Court reasoned that 

‘‘[r]ather than restraining the growers’ 

use of their own property, the regulation 

appropriates for the enjoyment of third 

parties the owners’ right to exclude.’’ Id. 

The circumstances in Cedar Point 

Nursery are not present in this rule, 

however. Cedar Point Nursery involved 

a regulation that granted union 

organizers an independent right to go 

onto the employer’s property for 

purposes of soliciting support for the 

union for up to three hours per day, 120 

days per year. This rule does not. 

Rather, consistent with section 8(e) of 

the OSH Act, this rule—like the 

regulation that has been in effect for 

more than fifty years—recognizes a 

limited right for third parties to 

‘‘accompany’’ CSHOs during their 

lawful physical inspection of a 

workplace solely for the purpose of 

aiding the agency’s inspection. 

Additionally, the Supreme Court in 

Cedar Point Nursery stated that ‘‘many 

government-authorized physical 

invasions will not amount to takings 

because they are consistent with 

longstanding background restrictions on 

property rights.’’ Id. at 2079. ‘‘For 

example, the government owes a 

landowner no compensation for 

requiring him to abate a nuisance on his 

property, because he never had a right 

to engage in the nuisance in the first 

place.’’ Id. Here, OSHA’s rule will not 

constitute a physical taking because, as 

discussed in Section IV.D.2, Fourth 

Amendment Issues, OSHA’s inspections 

are conducted in accordance with the 

Fourth Amendment and the OSH Act. 

Unlike the union organizers in Cedar 

Point Nursery, the presence of thirdparty employee representatives on the 

employer’s property will be strictly 

limited to accompanying the CSHO 

during a lawful physical inspection of 

the workplace and their sole purpose for 

being there will be to aid the inspection. 

One commenter stated OSHA’s rule 

does not fit within any of the Supreme 

Court’s recognized exceptions 

permitting government-authorized 

physical invasions because (1) access by 

third parties is not rooted in any 

‘‘longstanding background restrictions 

on property’’ and ‘‘these searches [do 

not] comport with the Fourth 

Amendment,’’ and (2) ‘‘even if the [rule] 

could be characterized as a condition 

imposed in exchange for a benefit, the 

third-party tag-along is not germane to 

risks posed to the public’’ (Document 

1768, p. 8) (citing Cedar Point Nursery, 

141 S. Ct. at 2079). First, as discussed 

in Section IV.D.2, Fourth Amendment 

Issues, an OSHA inspection can be 

reasonable under the Fourth 

Amendment even when it is conducted 

with the aid of a third-party. See, e.g., 

Sparks, 265 F.3d at 831–32 (finding 

warrantless search conducted with the 

aid of a civilian reasonable under the 

Fourth Amendment). Second, in Cedar 

Point Nursery, the Supreme Court stated 

that the government may require 

property owners to cede a right of access 

as a condition of receiving certain 

benefits, such as in government health 

and safety inspection regimes, without 

causing a taking so long as ‘‘the permit 

condition bears an ‘essential nexus’ and 

‘rough proportionality’ to the impact of 

the proposed use of the property,’’ 

Cedar Point Nursery, 141 S. Ct. at 2079– 

2080 (citing Dolan v. City of Tigard, 512 

U.S. 374, 386, 391 (1994) and Koontz v. 

St. Johns River Water Management Dist., 

570 U.S. 595, 599 (2013)). However, 

OSHA is not required to demonstrate 

the elements of ‘‘essential nexus’’ and 

‘‘rough proportionality’’ because it does 

not condition the grant of any benefit 

such as a grant, permit, license, or 

registration on allowing access for any 

of its reasonable safety and health 

inspections. 

Accordingly, OSHA has determined 

that this rule does not constitute a 

taking requiring just compensation 

under the Fifth Amendment. OSHA 

inspections conducted under this rule 

will be consistent with the Fourth 

Amendment and any third-party 

employee representatives that 

accompany the CSHO on their physical 

inspection of the workplace will be on 

the employer’s premises solely to aid 

the inspection. 

4. Due Process Issues 

Some commenters argued that this 

rule would deprive employers of due 

process because of substantive or 

procedural deficiencies or because it is 

unconstitutionally vague (see, e.g., 

Document ID 1762, p. 4; 1776, p. 5; 

1942, p. 4; 1955, p. 3, 8–9; 8124). For 

example, NRF asserted, ‘‘A CSHO’s 

decision to authorize a third-party 

representative to enter an employer’s 

property is a violation of substantive 

due process that an employer has no 

pre-entry/pre-enforcement means to 

address.’’ (Document ID 1776, p. 5). 

Other commenters asserted that 

employers’ due process rights are 

violated because there are not 

procedures for employers to challenge 

the CSHO’s ‘‘good cause’’ and 

‘‘reasonably necessary’’ determination, 

object to the selection of employees’ 

third-party walkaround representative, 

or verify the third-party representative’s 

qualifications before the third party 


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enters their property (see, e.g., 

Document ID 1776, p. 2, 5, 6–7; 1955, 

p. 3, 8–9). OSHA does not find any 

merit to commenters’ due process 

challenges. 

NRF inaccurately asserts that 

permitting a third-party to enter an 

employer’s property violates that 

employer’s substantive due process 

rights (see Document ID 1776, p. 5). As 

discussed in Section IV.D.3, Fifth 

Amendment Issues, OSHA inspections 

do not result in the deprivation of 

property. Instead, they are law 

enforcement investigations to determine 

whether employers at the worksite are 

complying with the OSH Act and OSHA 

standards. And, as explained in Section 

IV.D.2, Fourth Amendment Issues, a 

third party may accompany OSHA 

during its inspection for the purpose of 

aiding such inspection, just as other law 

enforcement officials do, depending on 

the nature of the inspection. 

This rule also does not change 

employers’ ability to object to 

employees’ choice for their walkaround 

representative. Employees have a right 

under section 8(e) of the Act to a 

walkaround representative, and, if an 

employer has concerns about the 

particular representative that employees 

choose, nothing in the Act or the rule 

precludes employers from raising 

objections to the CSHO. The CSHO may 

consider those objections when 

conducting an inspection in accordance 

with Part 1903, including when judging 

whether good cause has been shown 

that the employee representative’s 

participation is reasonably necessary to 

conduct an effective and thorough 

inspection of the workplace. 

Furthermore, as discussed in Section 

IV.D.2, Fourth Amendment Issues, 

OSHA’s inspections are conducted with 

the employer’s consent or via a warrant. 

If an employer denies or limits the 

scope of its consent to OSHA’s entry 

because it does not believe a particular 

third party should enter, the CSHO will 

consider the reason(s) for the employer’s 

objection. The CSHO may either find 

merit to the employer’s objection or 

determine that good cause has been 

shown that the third party is reasonably 

necessary to a thorough and effective 

inspection. In the latter scenario, the 

CSHO would follow the agency’s 

procedures for obtaining a warrant to 

conduct the physical inspection, and a 

judge would consider whether the 

search, including the third-party’s 

accompaniment, is reasonable under the 

Fourth Amendment. See, e.g., Matter of 

Establishment Inspection of Caterpillar 

Inc., 55 F.3d at 336 (employer objected 

to striking employee serving as 

walkaround representative and denied 

OSHA entry, moved to quash OSHA’s 

warrant granting entry, and then 

appealed district court decision denying 

employer’s motion). Neither NRF nor 

the Construction Industry Safety 

Coalition have suggested that this 

process is constitutionally inadequate. 

Other commenters argued that the 

rule is unconstitutionally vague. For 

instance, the Construction Industry 

Safety Coalition argues the rule ‘‘does 

not provide requisite notice of what is 

required to comply and will be 

unconstitutionally vague on its face and 

as applied.’’ (Document ID 1955, p. 3, 8– 

9). Several commenters argued ‘‘the 

regulated community has no notice as to 

what the standards, procedures, and 

their rights will be under this proposed 

regulation and thus cannot 

meaningfully comment.’’ (Document ID 

1779, p. 2; see also 1751, p. 2; 1942, p. 

2). 

Constitutional due process requires 

regulations to be sufficiently specific to 

give regulated parties adequate notice of 

the conduct they require or prohibit. See 

Freeman United Coal Mining Co. v. Fed. 

Mine Safety & Health Review Comm’n, 

108 F.3d 358, 362 (D.C. Cir. 1997) 

(‘‘[R]egulations will be found to satisfy 

due process so long as they are 

sufficiently specific that a reasonably 

prudent person, familiar with the 

conditions the regulations are meant to 

address and the objectives the 

regulations are meant to achieve, would 

have fair warning of what the 

regulations require.’’); see also AJP 

Const., Inc. v. Sec’y of Lab., 357 F.3d 70, 

76 (D.C. Cir. 2004) (quoting Gates & Fox 

Co. v. OSHRC, 790 F.2d 154, 156 (D.C. 

Cir. 1986)) (‘‘If, by reviewing the 

regulations and other public statements 

issued by the agency, a regulated party 

acting in good faith would be able to 

identify, with ascertainable certainty, 

the standards with which the agency 

expects parties to conform, then the 

agency has fairly notified a petitioner of 

the agency’s interpretation). 

Contrary to CISC’s assertion, this rule 

is not unconstitutionally vague. As 

explained in Section IV.F, 

Administrative Issues, this rule provides 

greater clarity than the prior regulation 

by more explicitly stating that 

employees’ walkaround representative 

may be a third party and that third 

parties are not limited to the two 

examples in the previous regulation. 

Accordingly, OSHA has determined that 

this rule does not infringe on employers’ 

due process rights. 

5. Tenth Amendment Issues 

Some commenters raised Tenth 

Amendment concerns (see Document ID 

1545; 7349). For instance, one 

commenter stated they oppose the rule 

‘‘because it violates the 10th 

amendment of the US Constitution, 

which reserves all powers to the states 

and the people that are not explicitly 

named in the Constitution’’ (Document 

ID 7349). Another commenter expressed 

concern over ‘‘federal law overruling 

established state law concerning OSHA 

rules’’ (Document ID 1545). However, 

OSHA’s authority to conduct 

inspections and to issue inspectionrelated regulations is well-settled and 

has been long exercised. See 29 U.S.C. 

657(e) (describing the Secretary’s 

authority to promulgate regulations 

related to employer and employee 

representation during an inspection); 

657(g)(2) (describing the Secretary of 

Labor’s and the Secretary of Health and 

Human Services’ authority to ‘‘each 

prescribe such rules and regulations as 

he may deem necessary to carry out 

their responsibilities under this Act, 

including rules and regulations dealing 

with the inspection of an employer’s 

establishment’’); Barlow’s, 436 U.S. at 

309 (section 8(a) of the OSH Act 

‘‘empowers agents of the Secretary of 

Labor (Secretary) to search the work 

area of any employment facility within 

the Act’s jurisdiction.’’). Accordingly, 

OSHA concludes that this rule does not 

violate the 10th Amendment. For a 

discussion on how this rule will affect 

states, see Sections VII, Federalism and 

VIII, State Plans. 

E. National Labor Relations Act and 

Other Labor-Related Comments 

Several commenters opposed to the 

proposed rule discussed the National 

Labor Relations Act (NLRA). These 

commenters mainly asserted that the 

rule circumvents or conflicts with the 

NLRA by allowing union officials to be 

employee representatives in non-union 

workplaces (see, e.g., 1933, p. 4; 1955, 

p. 7–8). For example, commenters 

argued that under the NLRA, a nonunion employer generally has the right 

to exclude union representatives 

engaged in organizing activity from their 

property (see, e.g., Document ID 1938, p. 

6–7; 1955, p. 6–7; 1976, p. 10–11). The 

Chamber of Commerce also contended 

that non-union employers that allow a 

union official to serve as employees’ 

walkaround representative could violate 

section 8(a)(2) of the NLRA by 

appearing to show favoritism to that 

union (Document ID 1952, p. 7). In 

addition, some commenters argued that 

representation rights under the NLRA 

are based on the concept of majority 

support, and therefore, a CSHO cannot 

allow an individual who lacks support 

from a majority of employees to serve as 

the employees’ walkaround 


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representative during OSHA’s 

inspection (see, e.g., Document ID 1939, 

p. 3; 1976, p. 8). 

Relatedly, several commenters, 

including the Utility Line Clearance 

Safety Partnership, Coalition for 

Workplace Safety, and National 

Association of Manufacturers asserted 

that determining whether a third party 

is an authorized representative of 

employees is exclusively under the 

jurisdiction of the National Labor 

Relations Board (NLRB) (Document ID 

1726, p. 4–5; 1938, p. 3; 1953, p. 5). The 

Coalition for Workplace Safety also 

argued that the NLRB alone has the 

authority to address the relationship 

between employees and their authorized 

representative and that ‘‘OSHA does not 

have the expertise or authority to 

meddle in the relationship’’ between 

employees and any authorized 

representative (Document ID 1938, p. 3– 

4). Lastly, some commenters raised the 

question of whether the rule would 

allow employees of one union to select 

a different union as their walkaround 

representative and asserted that this 

would conflict with the NLRA’s 

requirement that a certified union be the 

exclusive representative of all 

employees in the bargaining unit (see, 

e.g., Document ID 1976, p. 9). 

Conversely, other commenters, such 

as a group of legal scholars who support 

the proposed rule, denied that the rule 

implicated the NLRA and cited the 

legislative history of the OSH Act to 

show that the phrase ‘‘for the purpose 

of aiding such inspection’’ was added to 

section 8(e) of the OSH Act to limit 

potential conflict with the NLRA 

(Document ID 1752, p. 3–4). U.S. 

Representative Robert ‘‘Bobby’’ Scott 

compared section 8(e) of the OSH Act 

with section 103(f) of the Mine Safety 

and Health Act (Mine Act), which 

authorizes employee representatives 

during inspections, and noted that 

Federal courts of appeals have 

determined that allowing non-employee 

representatives under the Mine Act does 

not violate the NLRA (Document ID 

1931, p. 9–10, citing Thunder Basin 

Coal Co. v. FMSHRC, 56 F.3d 1275 (10th 

Cir. 1995) and Kerr-McGee Coal Corp. v. 

FMSHRC, 40 F.3d 1257 (D.C. Cir. 1994)). 

The American Federation of Teachers, 

who commented in support of the 

proposed rule, noted that disallowing 

union representatives in unionized 

workplaces would be incongruent with 

the NLRA because union representatives 

are the legally authorized 

representatives of employees concerning 

terms and conditions of employment 

under the NLRA (Document ID 1957, p. 

2). 

OSHA concludes that the rule does 

not conflict with or circumvent the 

NLRA because the NLRA and the OSH 

Act serve distinctly different purposes 

and govern different issues, even if they 

overlap in some ways. Cf. 

Representative of Miners, 43 FR 29508 

(July 7, 1978) (meaning of the word 

‘‘representative’’ in the Mine Act ‘‘is 

completely different’’ than the meaning 

of the word in the NLRA). The NLRA 

concerns ‘‘the practice and procedure of 

collective bargaining’’ and ‘‘the exercise 

by workers of full freedom of 

association, self-organization, and 

designation of representatives of their 

own choosing, for the purpose of 

negotiating the terms and conditions of 

their employment or other mutual aid or 

protection.’’ 29 U.S.C. 151. To effectuate 

this, the NLRB conducts elections to 

certify and decertify unions and 

investigates alleged unfair labor 

practices, among other activities. See 29 

U.S.C. 159. 

In contrast, the purpose of the OSH 

Act is to ‘‘assure . . . safe and healthful 

working conditions.’’ 29 U.S.C. 651. To 

effectuate this purpose, the OSH Act 

authorizes OSHA to conduct safety and 

health inspections and mandates that ‘‘a 

representative authorized by [an 

employer’s] employees shall be given an 

opportunity to accompany the Secretary 

or his authorized representative during 

the physical inspection of [the 

workplace] for the purpose of aiding 

such inspection.’’ 29 U.S.C. 657(e). The 

NLRA contains no analogous provision. 

Further, the OSH Act does not place 

limitations on who can serve as the 

employee representative, other than 

requiring that the representative aid 

OSHA’s inspection, and the OSH Act’s 

legislative history shows that Congress 

‘‘provide[d] the Secretary of Labor with 

authority to promulgate regulations for 

resolving this question.’’ 88 FR 59825, 

59828–59829 (quoting Legislative 

History of the Occupational Safety and 

Health Act of 1970, at 151 (Comm. Print 

1971)). As such, OSHA—not the 

NLRB—determines if an individual is 

an authorized representative of 

employees for the purposes of an OSHA 

walkaround inspection. OSHA’s FOM 

instructs that in workplaces where 

workers are represented by a certified or 

recognized bargaining agent, the 

highest-ranking union official or union 

employee representative on-site shall 

designate who will participate as the 

authorized representative during the 

walkaround. OSHA Field Operations 

Manual, CPL 2–00–164, Chapter 3, 

Section VII.A.I. While some commenters 

questioned OSHA’s expertise and 

authority to make such determinations, 

OSHA has the statutory and regulatory 

authority to determine who is an 

authorized walkaround representative 

and has done so for more than fifty 

years. See 29 U.S.C. 657(e), (g)(2); 29 

CFR 1903.8(a)–(d). 

Because of the different nature of each 

statute and the different activities they 

govern, OSHA does not find any merit 

to the arguments about potential 

conflicts or circumvention of the NLRA. 

For example, some commenters pointed 

to Supreme Court cases, including 

NLRB v. Babcock & Wilcox Co., 351 U.S. 

105 (1956) and Lechmere, Inc. v. NLRB, 

502 U.S. 527 (1992), for the proposition 

that employers have a right to exclude 

unions from their property. (see, e.g., 

Document ID 1952, p. 8–9; 1955, p. 7; 

1976, p. 9–11). However, those 

decisions did not bar unions from ever 

accessing worksites for any reason. 

Instead, the decisions concerned 

unions’ ability to access employer 

property for the specific purpose of 

informing non-union employees of their 

rights under NLRA Section 7 to form, 

join, or assist labor organizations. See 

Lechmere, Inc., 502 U.S. at 538 (‘‘only 

where such access [to non-union 

employees by union organizers] is 

infeasible that it becomes necessary and 

proper to take the accommodation 

inquiry to a second level, balancing the 

employees’ and employers’ rights’’); 

Babcock, 351 U.S. at 114 (‘‘[The NLRA] 

does not require that the employer 

permit the use of its facilities for 

organization when other means are 

readily available’’). In reaching these 

decisions, the Supreme Court noted that 

the NLRA affords organizing rights to 

employees and not to unions or their 

nonemployee organizers, and therefore, 

the employer is generally not required 

to admit nonemployee organizers onto 

their property. Lechmere, 502 U.S. at 

532; Babcock, 351 U.S. at 113. 

Conversely, the OSH Act explicitly 

affords employees the right to have a 

representative accompany OSHA ‘‘for 

the purpose of aiding’’ the inspection 

and does not require that representative 

to be an employee of the employer. 29 

U.S.C. 657(e). If employees in a nonunion workplace choose a nonemployee 

representative affiliated with a union as 

their walkaround representative during 

OSHA’s inspection, OSHA will allow 

that individual to be the employees’ 

walkaround representative only if good 

cause has been shown that the 

individual is reasonably necessary to 

the conduct of an effective and thorough 

inspection. That third-party walkaround 

representative will be onsite solely to 

aid OSHA’s inspection. If the 

representative deviates from that role, 

OSHA’s existing regulations afford the 


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CSHO the authority to terminate the 

representative’s accompaniment. See 29 

CFR 1903.8(d). 

Additionally, in interpreting the Mine 

Act, which contains an analogous 

employee representative walkaround 

right, 30 U.S.C. 813(f), courts have 

rejected arguments that allowing a 

nonemployee union representative to 

accompany a Mine Safety and Health 

Administration (MSHA) investigator as 

the miners’ representative during an 

inspection violates an employer’s rights 

under the NLRA. See U.S. Dep’t of Lab. 

v. Wolf Run Mining Co., 452 F.3d 275, 

289 (4th Cir. 2006) (‘‘While a union may 

not have rights to enter the employer’s 

property under the NLRA, miners do 

have a right to designate representatives 

to enter the property under the Mine 

Act.’’); Thunder Basin Coal Co., 56 F.3d 

at 1281 (rejecting argument that 

allowing non-union workers to 

designate union representatives for 

MSHA inspections violated Lechmere); 

see also Kerr-McGee Coal Corp., 40 F.3d 

at 1265 (rejecting the Lechmere standard 

because the Mine Act ‘‘defines the rights 

of miners’ representatives and specifies 

the level of intrusion on private 

property interests necessary to advance 

the safety objectives of the Act.’’). 

Accordingly, NLRA case law does not 

prevent employees from authorizing 

nonemployee representatives under the 

OSH Act, including those affiliated with 

unions. 

In addition, comments regarding the 

NLRA’s requirements for majority 

support are misplaced. One commenter 

argued that because an employer can 

only bargain with a union representative 

who was designated or selected by a 

‘‘majority of the employees’’ under the 

NLRA, unions must also have majority 

support to be the employees’ 

representative under the OSH Act 

(Document ID 1976, p. 6–11). Relatedly, 

this commenter suggested that the 

showing to demonstrate majority 

support is higher under the OSH Act 

because the OSH Act does not exclude 

as many individuals from the definition 

of ‘‘employee’’ as the NLRA (Document 

ID 1976, p. 9). However, the OSH Act 

contains no requirement for majority 

support, nor has OSHA ever imposed 

one in determining who is the 

employees’ walkaround representative. 

Cf. OSHA Field Operations Manual, 

Chapter 3, Section VII.A (noting that 

members of an established safety 

committee can designate the employee 

walkaround representative). 

Furthermore, the NLRA’s requirements 

for majority support would not apply to 

a union representative accompanying 

OSHA in a non-union workplace as this 

representative would not be engaged in 

collective bargaining. Their purpose, 

like any other type of employee 

representative, is to aid OSHA’s 

inspection. 

This rule also does not conflict with 

sections 7 and 8(a)(2) of the NLRA, 

contrary to the assertions of several 

commenters (see, e.g., Document ID 

1776, p. 9–10; 1946, p. 6; 1952, p. 7). 

Section 7 of the NLRA grants employees 

‘‘the right to self-organization, to form, 

join, or assist labor organizations, to 

bargain collectively through 

representatives of their own choosing, 

and to engage in other concerted 

activities for the purpose of collective 

bargaining or other mutual aid or 

protection’’ as well as ‘‘the right to 

refrain from any or all of such 

activities[.]’’ 29 U.S.C. 157. This rule 

has no effect on employees’ section 7 

right to engage in or refrain from 

concerted activity, contrary to the 

assertions of NRF that this rule violates 

employees’ section 7 rights by denying 

them a right to vote for or against an 

authorized representative (Document ID 

1776, p. 9–10). Again, this rule has no 

effect on employees’ rights under the 

NLRA to select a representative ‘‘for the 

purposes of collective bargaining.’’ 29 

U.S.C. 159(a). The purpose of the 

employees’ walkaround representative 

is to aid OSHA’s inspection, not engage 

in collective bargaining. 

One commenter raised several 

hypothetical situations that could occur 

and asked whether these situations 

would be considered unfair labor 

practices under sections 8(a)(1) and 

8(b)(1)(A) of the NLRA (Document ID 

1976, p. 9). The question of whether 

certain conduct could violate another 

law is beyond the scope of this 

rulemaking and OSHA’s authority. The 

NLRB, not OSHA, determines whether 

such conduct would constitute an unfair 

labor practice. 

OSHA has determined this rule does 

not conflict with section 8(a)(2) of the 

NLRA, which prohibits employers from 

‘‘dominat[ing] or interfer[ing] with the 

formation or administration of any labor 

organization or contribut[ing] financial 

or other support to it[.]’’ 29 U.S.C. 

158(a)(2). NRF asserted that an 

employer providing a union organizer 

with access to its property during an 

OSHA inspection may be providing 

unlawful support to the union in 

violation of 8(a)(2) of the NLRA 

(Document ID 1952, p. 7). However, 

employees, and not the employer, select 

their representative, and the CSHO must 

also determine that good cause has been 

shown that this representative is 

reasonably necessary. Given that OSHA, 

not an employer, has the ultimate 

authority to determine which 

representatives may accompany the 

CSHO on the walkaround inspection, 

see 29 CFR 1903.8(a)–(d), an employer 

that grants access to an employee 

representative affiliated with a union as 

part of an OSHA workplace inspection 

would not run afoul of section 8(a)(2) of 

the NLRA, even assuming that such 

access could conceivably implicate 

Section 8(a)(2). 

Commenters also raised concerns 

about unionized employees selecting a 

different union to accompany OSHA 

because the NLRA recognizes certified 

representatives as the ‘‘exclusive 

representative’’ of the bargaining unit 

employees (see, e.g., Document ID 1976, 

p. 9). Other commenters raise concerns 

that the final rule inserts OSHA into 

‘‘jurisdictional disputes between 

unions’’ (Document ID 11220; 11211). If 

employees at a worksite already have a 

certified union, OSHA does not intend 

to replace that union with a different 

walkaround representative. According 

to the FOM, ‘‘the highest ranking union 

official or union employee 

representative onsite shall designate 

who will participate in the 

walkaround.’’ OSHA Field Operations 

Manual, CPL 02–00–164, Chapter 3, 

Section VII.A.1. However, the CSHO 

may permit an additional employee 

representative (regardless of whether 

such representative is affiliated with a 

union) if the CSHO determines the 

additional representative is reasonably 

necessary to the conduct of an effective 

and thorough inspection and will 

further aid the inspection. See 29 CFR 

1903.8(a), (c). 

Finally, even where the two statutes 

overlap at times, such as both the NLRA 

and OSH Act protecting employees’ 

right to voice concerns to management 

about unsafe or unhealthful working 

conditions, there is no conflict between 

the two statutes when employees 

authorize a third-party affiliated with a 

union to accompany a CSHO on an 

inspection of a non-union workplace. 

As evidence that this intersection of 

statutes does not lead to conflict, OSHA 

and the NLRB have had Memoranda of 

Understanding (MOUs) since 1975 to 

engage in cooperative efforts and 

interagency coordination. Accordingly, 

OSHA finds no merit to the arguments 

that this regulation conflicts or 

circumvents the NLRA. 

Comments Related to Labor Disputes, 

Organizing, and Alleged Misconduct 

In addition to comments about the 

NLRA, some commenters expressed 

concerns that, by allowing a union 

representative to accompany OSHA at a 

non-union worksite, OSHA would give 

the appearance of endorsing a union 


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representative in a particular worksite 

or endorsing unions generally and thus 

departing from OSHA’s longstanding 

policy of neutrality in the presence of 

labor disputes (see, e.g., Document ID 

1976, p. 24–25; 1946, p. 6–7). Another 

commenter claimed that OSHA’s 2023 

MOU with the NLRB could pressure 

CSHOs ‘‘to allow non-affiliated union 

representatives to join their walkaround 

inspections’’ (Document ID 1762, p. 5). 

These concerns are unfounded. OSHA 

does not independently designate 

employee representatives. Employees 

select their representative, and OSHA 

determines if good cause has been 

shown that the individual is reasonably 

necessary to the inspection. That 

inquiry does not depend on whether the 

representative is affiliated with a union. 

And a finding of good cause does not 

indicate that OSHA is favoring unions. 

Additionally, the FOM provides 

guidance to CSHOs to avoid the 

appearance of bias to either 

management or labor if there is a labor 

dispute at the inspected workplace. See 

OSHA Field Operations Manual, CPL 

02–00–164, Chapter 3, Sections IV.G.3, 

IV.H.2.c (‘‘Under no circumstances are 

CSHOs to become involved in a 

worksite dispute involving labor 

management issues or interpretation of 

collective bargaining agreements’’); 

(‘‘During the inspection, CSHOs will 

make every effort to ensure that their 

actions are not interpreted as supporting 

either party to the labor dispute.’’). 

Neutrality has been OSHA’s 

longstanding policy, and OSHA rejects 

arguments that the final rule displays 

favoritism towards unions or will 

improperly pressure CSHOs to allow 

authorized representatives. 

Finally, OSHA’s MOU with the NLRB 

relates to interagency cooperation and 

coordination, and there is no basis for 

assuming that this interagency 

cooperation will interfere with OSHA 

inspections or neutrality. As explained 

previously, third-party employee 

representatives will accompany the 

CSHO on an inspection only when the 

CSHO determines good cause has been 

shown that the third-party employee 

representatives are reasonably necessary 

to an effective and thorough inspection. 

OSHA concludes that existing 

safeguards and the requirement for third 

party representatives to be reasonably 

necessary to the inspection will prevent 

such an appearance of bias or 

endorsement of unionization or 

particular unions. 

Commenters in opposition to the 

proposed rule also voiced the possibility 

that third-party employee 

representatives from unions or other 

advocacy organizations would use the 

walkaround inspection for organizing 

(see, e.g., Document ID 0021; 0040, p. 3). 

The National Federation of Independent 

Business discussed these concerns and 

alleges that third-party employee 

representatives ‘‘would gain access to 

information otherwise not available and 

could interact with employees in a way 

that could facilitate union organizing 

campaigns, political activity, mischief, 

and litigation’’ (Document ID 0168 p. 7). 

The North American Insulation 

Manufacturers Association claimed that 

‘‘unions would monitor OSHA 

complaint filings, contact employees, 

and attempt to receive authorization to 

attend walkarounds so they can access 

the site to solicit for employee support’’ 

(Document ID 1937, p. 5). 

Additionally, some commenters 

asserted that permitting union 

representatives in workplaces without a 

collective bargaining agreement is part 

of an ‘‘ ‘all-of-government’ approach to 

union expansion’’ (see, e.g., Document 

ID 1776, p. 2). Similarly, some 

commenters argued that this rule is 

‘‘designed to give union supporters 

access to company facilities that they 

would otherwise not be granted’’ and 

that it ‘‘promote[s] unions and collective 

bargaining’’ (Document ID 0033; 1030). 

Certain commenters in support of the 

proposed believed that the proposed 

rule was about ensuring union 

representation in inspected workplaces 

(see, e.g., Document ID 0056; 10725). 

Alleged union misconduct is another 

concern of several commenters in 

opposition to the proposed rule. NRF 

alleges that they ‘‘have learned of 

anecdotal incidents wherein union 

business agents have relationships with 

CSHOs from some local area offices’’ 

and that these CSHOs have ‘‘pursued 

unjustifiable citations against 

companies during critical times’’ 

(Document ID 1776, p. 6–7). Some 

commenters also expressed concerns 

that third-party representatives affiliated 

with one union would ‘‘poach’’ 

employees from employees’ existing 

union (see, e.g., Document ID 11275). 

Other comments raise misconduct of 

third parties generally as a basis for 

their opposition to the proposed rule. 

For example, the American Road & 

Transportation Builders Association 

(ARTBA) claims ‘‘ARTBA members 

have shared past experiences with bad 

actors attempting to access their job 

sites for reasons unrelated to worker 

safety and health’’ (Document ID 1770, 

p. 3). 

NRF referenced amendments to the 

NLRA and the Landrum-Griffin Act, 

also known as the Labor-Management 

Reporting and Disclosure Act (LMRDA), 

which, according to NRF, ‘‘provides a 

mechanism through which employees 

and employers can challenge the status 

of an Authorized Representative’’ 

(Document ID 1776, p. 6). NRF asserted 

that this ‘‘pre-enforcement mechanism’’ 

allows ‘‘an appeal and remedy before 

employees and employers must submit 

to representation by the Authorized 

Representative.’’ (Document ID 1776, p. 

6). NRF asserted that the policy 

rationale of limiting union misconduct 

was behind the amendments to the 

NLRA and passage of the LMRDA and 

suggested that the final rule should 

include similar safeguards to further the 

same policy rationale (Document ID 

1776, p. 6). 

U.S. Representative Virginia Foxx 

asserted that unions ‘‘weaponized the 

OSHA inspection process’’ after OSHA 

issued the Sallman letter, referencing 

four inspections where a representative 

affiliated with a union accompanied 

OSHA as the employee walkaround 

representative (Document ID 1939, p. 2– 

3). One commenter asserted that this 

rule could lead to compromised 

inspections and quoted an unnamed 

‘‘Occupational Safety and Operational 

Risk Management Professional’’ who 

claimed to witness inspections where 

union officials allegedly argued with 

CSHOs and stated that CSHOs could not 

write a citation without the union’s 

consent (Document ID 11506). No 

information about the date, location, 

employer, union, OSHA staff, or the 

witness was included. 

Some commenters, including U.S. 

Senator Bill Cassidy, MD, called 

attention to the potential that the 

‘‘presence of a union organizer, 

especially in a non-union workplace, 

could very well cause an employer to 

deny OSHA access’’ (Document ID 0021, 

p. 2; see also 1772, p. 1). Senator 

Cassidy stated that this would delay the 

inspection while OSHA seeks a warrant, 

which would be detrimental to worker 

safety and health (Document ID 0021, p. 

1–2; see also 1772, p. 1). Winnebago 

Industries, Inc. stated their concerns 

about worker privacy when a third-party 

union representative accompanies an 

OSHA inspector (Document ID 0175, p. 

2). 

Those in support of the proposed rule, 

including UFCW, stated that third-party 

representatives from their union have 

not used OSHA inspections as pretext 

for organizing (Document ID 1023, p. 2). 

A former director of the safety and 

health program for AFSCME stated that 

when he served as a third-party 

representative in workplaces that 

AFSCME was attempting to organize 

that ‘‘no union issues were raised’’ 

(Document ID 1945, p. 3). 

Representative Scott, citing to a 


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prominent union organizer, noted that 

union organizing was unlikely to 

happen during a walkaround 

inspections because of the need for indepth, one-on-one conversations 

between the organizer and workers 

during a campaign (Document ID 1931, 

p. 10–11). Representative Scott 

concluded that walkaround inspections 

do not allow for such conversations. 

In response to these comments both 

for and against the rule, OSHA first 

reiterates that the purpose of this 

rulemaking is to allow CSHOs the 

opportunity to draw upon the skills, 

knowledge, or experience of third-party 

representatives and ensure effective 

inspections, not to facilitate union 

organizing or ensure union 

representation. OSHA strongly disagrees 

with NRF’s suggestion that CSHOs have 

pursued unjustifiable citations due to 

union influence. Further, NRF provided 

no specific details to enable OSHA to 

evaluate these allegations. For the same 

reason, OSHA finds little support for the 

allegation that CSHOs have been 

improperly influenced by union 

officials and that this rule will lead to 

further improper influence. Assertions 

of general misconduct of third parties 

raised by commenters such as ARTBA 

do not appear linked to OSHA’s 

inspections and lack specific details. 

OSHA also disagrees with the notion 

that this rule allows the OSHA 

inspection to be ‘‘weaponized.’’ Because 

any third-party representative, 

including those from unions or 

advocacy organizations, would need to 

be reasonably necessary for a thorough 

and effective inspection, the OSHA 

inspection cannot be ‘‘weaponized’’ 

against employers. Further, OSHA 

complaints are not publicly available, so 

is there no way for a union to ‘‘monitor’’ 

them and contact employees, contrary to 

the North American Insulation 

Manufacturers Association’s claim. 

While third-party employee 

walkaround representatives may 

observe workplace conditions, they only 

have access to this information for the 

specific purpose to aid an OSHA 

inspection. And, as explained above, 

they are not permitted to engage in any 

conduct that interferes with a fair and 

orderly inspection. See 29 CFR 

1903.8(d). If a representative engages in 

conduct that interferes with a fair and 

orderly inspection, such as union 

organizing or any type of misconduct, 

OSHA will deny the representative the 

right of accompaniment and exclude the 

representative from the walkaround 

inspection. See 29 CFR 1903.8(d). 

CSHOs have extensive experience 

maintaining fair and orderly 

inspections, and, given the CSHO’s 

command over the inspection, OSHA 

finds that union organizing, political 

activity, or misconduct are unlikely 

during a walkaround. Furthermore, any 

union solicitation, such as handing out 

union authorization cards, would not 

aid the inspection and would be 

grounds to deny accompaniment. 

OSHA concludes that this rule, along 

with existing procedural and regulatory 

safeguards, are adequate to protect 

inspections from interference, union 

organizing, or misconduct. See 29 CFR 

1903.7(d); 1903.8(a)–(d). Additionally, 

as discussed in Section IV.A, The Need 

for and Benefits of Third-Party 

Representation, any inspection with a 

third-party representative is subject to 

OSHA regulations on the protection of 

trade secrets. See 29 CFR 1903.9(a)–(d). 

OSHA also disagrees with Winnebago 

Industries’ suggestion that allowing 

authorized third-party representatives 

from unions will have a noticeable 

impact on worker privacy. Since 1971, 

OSHA has permitted employees to have 

a third-party walkaround representative, 

and no comment has provided a specific 

example of when a worker’s privacy was 

adversely impacted by the actions of a 

third-party representative. In fact, one 

commenter noted that a representative 

selected by workers can offer workers 

more privacy to reveal issues away from 

surveillance by an employer (Document 

ID 1728, p. 3–4). 

OSHA disagrees with NRF’s comment 

that this rule should include procedures 

similar to the NLRB ‘‘before employees 

and employers must submit to 

representation by the Authorized 

Representative’’ (Document ID 1776, p. 

6). It is unknown exactly which 

mechanism this comment is referring to, 

such as situations where an employer 

declines to sign an election agreement 

and proceeds to a formal hearing before 

an NLRB Hearing Officer or situations 

where employees vote against a union 

in an NLRB-held election. Under the 

NLRA, an employer has a limited right 

to challenge a candidate bargaining 

representative, pre-election, by filing a 

petition with the NLRB. See 29 U.S.C. 

159(c)(1)(B). 

In either case, the NLRB processes for 

union recognition are completely 

inapposite to the framework of the OSH 

Act. First, OSHA inspections are to be 

conducted ‘‘without delay,’’ 29 U.S.C. 

657(a)(1), and delaying an inspection to 

hold a hearing on who can be the 

employees’ walkaround representative 

is antithetical to section 8(a) of the OSH 

Act. Second, as explained previously, 

nothing in the OSH Act requires 

majority support for a representative the 

way the NLRA does. Third, unlike the 

NLRA, the OSH Act does not include a 

process by which employers object to 

employees’ representative—or for 

employees to object to the employer’s 

representative, for that matter. 

Nevertheless, employers may raise 

concerns related to the authorized 

employee representative with the 

CSHO, who will address them at the 

worksite. Where the employer’s 

concerns cannot be resolved, the CSHO 

will construe the employer’s continued 

objection as to the authorized employee 

representative as a refusal to permit the 

inspection and shall contact the Area 

Director, per Chapter 3, Section IV.D.2 

of the FOM. OSHA will obtain a warrant 

when necessary to conduct its 

inspections. See Barlow’s, 436 U.S. at 

313; see also 29 CFR 1903.4(a). 

Finally, because any third-party 

walkaround representative is subject to 

the good cause and reasonably 

necessary requirement, OSHA 

anticipates that the vast majority of 

employers will not deny entry simply 

because the employees’ walkaround 

representative is a third party. However, 

OSHA will obtain a warrant when 

necessary to conduct its inspections. 

See Barlow’s, 436 U.S. at 313; see also 

29 U.S.C. 657(a)(1)–(2); 29 CFR 

1903.4(a). In situations where the 

employer’s past practice either 

implicitly or explicitly puts the 

Secretary on notice that a warrantless 

inspection will not be allowed, OSHA 

may seek an anticipatory warrant in 

order to conduct its inspection without 

delay. See 29 CFR 1903.4(b)(1). As such, 

OSHA does not believe that this rule 

will result in further delays that would 

be detrimental to worker safety and 

health. 

F. Administrative Issues. 

1. Administrative Procedure Act 

Some commenters argued that the 

proposal conflicted with the 

Administrative Procedure Act (APA) 

(See, e.g., Document ID 1776, p. 8, 10; 

1953, p. 1, 3, 5; 1954, p. 2, 4). The APA 

requires an agency to provide notice of 

a proposed rulemaking and to include 

‘‘either the terms or substance of the 

proposed rule or a description of the 

subjects and issues involved.’’ 5 U.S.C. 

553(b)(3). A final rule must be a logical 

outgrowth of the proposed rule and 

must allow affected parties to anticipate 

that the final rule was possible. See 

Allina Health Servs. v. Sebelius, 746 

F.3d 1102, 1107 (D.C. Cir. 2014). In 

issuing a final rule an ‘‘agency must 

examine the relevant data and articulate 

a satisfactory explanation for its action 

including a ‘rational connection 

between the facts found and the choice 

made.’ ’’ Motor Vehicle Mfrs. Ass’n of 


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U.S., Inc. v. State Farm Mut. Auto. Ins. 

Co., 463 U.S. 29, 43 (1983) (quoting 

Burlington Truck Lines v. United States, 

371 U.S. 156, 168 (1962)). 

Several commenters asserted that the 

proposed rule was arbitrary and 

capricious under the APA because it 

was inconsistent with the OSH Act, 

other OSHA regulations, lacked a 

rational basis for adoption, lacked 

sufficient clarity on third-party 

qualifications, invited chaos, or because 

it gave CSHOs too much discretion (see, 

e.g., Document ID 0168, p. 4–6; 1754, p. 

2–3; 1776, p. 2–3; 1782, p. 3–5; 1952, p. 

12–13; 1953, p. 5; 1954, p. 4). As 

discussed below, OSHA has determined 

that this rule is consistent with APA 

and OSH Act rulemaking requirements. 

a. Consistency With the OSH Act 

Several commenters asserted that the 

proposed rule is arbitrary and 

capricious because it was not a valid 

construction of the OSH Act (see, e.g., 

Document ID 0168, p. 6; 1946, p. 4–5; 

1952, p. 11–13). Some commenters 

asserted that the term ‘‘authorized 

employee representative’’ in section 8(e) 

of the OSH Act is limited to employees 

of the employer (see, e.g., Document ID 

1768, p. 4; 11506). Others argued that 

the term is reserved for unions that 

represent employees for collective 

bargaining purposes (see, e.g., 

Document ID 1952, p. 6–7; 10808). 

Commenters further argued that 

defining this term to include all 

employee walkaround representatives, 

including non-union third parties, 

would directly conflict with existing 

OSHA regulations and procedural rules 

issued by the Occupational Safety and 

Health Review Commission 

(‘‘Commission’’) interpreting the same 

or similar terms (e.g., Document ID 

1937, p. 4; 1946 p. 4–5; 1952, p. 6–8, 9– 

11; 1976, p. 6). OSHA has determined 

that this regulation is consistent with 

the plain language and legislative 

history of the OSH Act and finds that 

other, unrelated regulations do not 

require OSHA to limit its interpretation 

of ‘‘employee representative’’ in section 

8(e) of the OSH Act to employees of the 

employer or unions that represent 

employees for collective bargaining 

purposes. 

As explained in Section III, Legal 

Authority, the Act does not place 

restrictions on who can be a 

representative authorized by 

employees—other than requiring that 

they aid the inspection—and permits 

third parties to serve as authorized 

employee representatives. See Matter of 

Establishment Inspection of Caterpillar 

Inc., 55 F.3d at 338 (‘‘[T]he plain 

language of § 8(e) permits private parties 

to accompany OSHA inspectors[.]’’); 

NFIB v. Dougherty, 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.’’). Likewise, nothing in 

the OSH Act or its legislative history 

suggests that Congress intended to 

extend employee accompaniment rights 

only to unionized workplaces. 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) (‘‘The 

bill provides that union representatives 

or any employee representative be 

allowed to accompany inspectors on 

their plant tours.’’) (emphasis added). 

Section 8(e) uses ‘‘representative 

authorized by his employees’’ and 

‘‘authorized employee representative’’ 

as equivalents, and certainly employees 

can authorize an employee 

representative to accompany a 

walkaround inspection even if they are 

not unionized. There is no reason to 

think that Congress intended anything 

more. 

Thus, section 8(e)’s plain meaning 

permits employees to select a 

walkaround representative, irrespective 

of whether that representative is 

employed by the employer, to serve as 

an ‘‘authorized employee 

representative.’’ Contrary to some 

commenters’ claims, section 8(e) does 

not limit the scope of authorized 

employee representatives to ‘‘only 

lawfully recognized unions’’ (Document 

ID 1952, p. 6). Furthermore, sections 

8(e) and 8(g), respectively, expressly 

authorize the Secretary to issue 

regulations related to employee and 

employer representation during OSHA’s 

walkaround inspection as well as 

‘‘regulations dealing with the inspection 

of an employer’s establishment.’’ 29 

U.S.C. 657(e), (g)(2). 

Furthermore, as discussed in Section 

III, Legal Authority, this rule is 

consistent with Congress’s expressed 

intent because Congress clearly 

intended to give the Secretary of Labor 

the authority to issue regulations to 

resolve the question of who could be an 

authorized employee representative for 

purposes of the walkaround inspection. 

See 29 U.S.C. 657(e); 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.’’). 

Other commenters argued that this 

regulation is consistent with the plain 

language of the OSH Act (see, e.g., 

Document ID 1752, p. 1–3; 1969, p. 4). 

For example, the AFL–CIO argued that 

the Secretary’s interpretation ‘‘is 

strongly supported by judicial 

construction of the almost identical 

provision of the Federal Mine Health 

and Safety Act of 1977, 30 U.S.C. 

813(f)’’ (Document ID 1969, p. 4). OSHA 

agrees. 

The Mine Act contains nearly 

identical language conferring miners the 

right to have an authorized 

representative accompany the inspector 

as the OSH Act. Compare 30 U.S.C. 

813(f) (‘‘Subject to regulations issued by 

the Secretary, a representative of the 

operator and a representative authorized 

by his miners shall be given an 

opportunity to accompany the Secretary 

or his authorized representative during 

the physical inspection of any coal or 

other mine[.]’’) with 29 U.S.C. 657(e) 

(‘‘Subject to regulations issued by the 

Secretary, a representative of the 

employer and a representative 

authorized by his employees shall be 

given an opportunity to accompany the 

Secretary or his authorized 

representative during the physical 

inspection of any workplace[.]’’). Courts 

have long held that this language in the 

Mine Act does not limit who can be 

employees’ representative. See Utah 

Power & Light Co. v. Sec’y of Labor, 897 

F.2d 447 (10th Cir. 1990) (Section 103(f) 

of the Mine Act ‘‘confers upon the 

miners the right to authorize a 

representative for walkaround purposes 

without any limitation on the 

employment status of the 

representative.’’). 

As with the Mine Act, the nearly 

identical language in the OSH Act ‘‘does 

not expressly bar non-employees from 

serving as’’ authorized employee 

representatives. Kerr-McGee Coal Corp., 

40 F.3d at 1262. In Kerr-McGee Coal 

Corp., the D.C. Circuit held that the 

Secretary’s interpretation of the Mine 

Act’s virtually identical language as 

allowing the ‘‘involvement of third 

parties in mine safety issues . . . is 

consistent with Congress’s legislative 

objectives of improving miner health 

and mine safety.’’ Id. at 1263; see also 

id. (‘‘Obviously, if Congress had 

intended to restrict the meaning of 

‘miners’ representatives’ in the 1977 

Act, it could have done so in the statute 

or at least mentioned its views in the 

legislative history. It did neither. 

Consequently, in view of Congress’ clear 

concern about miners’ safety, the 

Secretary’s broad interpretation of the 

term is consistent with congressional 

objectives.’’). 


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Moreover, Congress gave the Secretary 

of Labor the authority to issue 

regulations related to walkaround 

inspections and to resolve the question 

of who could be an authorized 

employee representatives for purposes 

of section 8(e) of the OSH Act. See 29 

U.S.C. 657(e); Legislative History of the 

Occupational Safety and Health Act of 

1970, at 151 (Comm. Print 1971). Given 

the nearly identical language in section 

103(f) of the Mine Act, which was 

passed shortly after the OSH Act, and 

the similar purposes of the two statutes, 

here too the plain language of the OSH 

Act confers upon employees the right to 

authorize a representative irrespective 

of the representative’s employment 

status. See Smith v. City of Jackson, 

Miss., 544 U.S. 228, 233 (2005) 

(plurality opinion) (‘‘[W]hen Congress 

uses the same language in two statutes 

having similar purposes, particularly 

when one is enacted shortly after the 

other, it is appropriate to presume that 

Congress intended that text to have the 

same meaning in both statutes.’’). 

The Chamber of Commerce also 

asserted that the plain meaning of the 

term ‘‘authorized’’ employee 

representative requires a legal 

delegation (see Document ID 1952, p. 

10). In support, the Chamber cites two 

cases—Anderson v. U.S. Dep’t of Labor, 

422 F.3d 1155, 1178–79 (10th Cir. 2005) 

and United States v. Stauffer Chemical 

Co., 684 F.2d 1174, 1190–91 (6th Cir. 

1982), aff’d, 464 U.S. 165 (1984) 

(Document ID 1952, p. 10). However, 

these cases are distinguishable and do 

not support the Chamber’s proposition 

that a legal delegation of authority is 

required. 

In Anderson, the Tenth Circuit 

addressed whether a whistleblower 

complainant’s position as a political 

appointee precluded her from being an 

‘‘authorized representative of 

employees’’ under the employee 

protection provisions of the 

Comprehensive Environmental, 

Response, Compensation, and Liability 

Act of 1980 (CERCLA) and other related 

environmental statutes. 422 F.3d at 

1157. The Department of Labor’s 

Administrative Review Board (ARB) 

held that the complainant (Anderson) 

lacked standing to sue under CERCLA 

because the meaning of ‘‘authorized 

representative’’ under that statute 

requires ‘‘some tangible act of selection 

by employees in order for one to be an 

‘authorized representative of 

employees.’ ’’ Id. at 1180. The ARB 

concluded that Anderson could not as a 

matter of law ‘‘represent’’ employees in 

her position as a political appointee 

under state law and, even if she was 

permitted to serve as an ‘‘authorized 

representative,’’ she failed to establish 

that municipal employees or union 

officials ‘‘authorized’’ her to be their 

representative during her tenure.’’ Id. at 

1178, 1180. On appeal, the Tenth 

Circuit held that, based on the statutory 

language and the legislative history of 

the applicable statutes, the ARB 

construction of ‘‘ ‘authorized 

representative’ to require some sort of 

tangible act of selection is a permissible 

one.’’ Id. at 1181. 

The Chamber of Commerce argues 

that Anderson stands for the proposition 

that that an employee representative is 

‘‘authorized’’ under the OSH Act only 

where there is some ‘‘legal authority, 

rather than merely a request by 

employees to represent them.’’ 

(Document ID 1952, p. 10) (citing 

Anderson, 422 F.3d at 1178–79). 

However, this is an incorrect reading of 

Anderson. The court in Anderson did 

not hold—as the Chamber suggests— 

that ‘‘legal authority’’ is required for an 

employee representative to be 

‘‘authorized’’ under any statute. Further, 

the holding in Anderson was limited to 

the meaning of ‘‘authorized 

representative of employees’’ as used in 

CERCLA (and other related 

environmental statutes). OSHA has 

never required an employee 

representative to have ‘‘legal authority’’ 

as a precondition to serving as a 

walkaround representative in the more 

than fifty years of implementing section 

8(e) of the OSH Act, nor has any court. 

For example, OSHA’s FOM has long 

instructed that employee members of an 

established workplace safety committee 

or employees at large can designate a 

walkaround representative, see OSHA 

Field Operations Manual, CPL 02–00– 

164, Chapter 3, Section VII, A.1–A.2, 

even though that representative does not 

have ‘‘legal authority.’’ 

Likewise, Stauffer Chemical is 

inapplicable to this rule. In that case, 

the U.S. Court of Appeals for the Sixth 

Circuit held that the term ‘‘authorized 

representative’’ of the EPA 

Administrator under the Clean Air Act’s 

provision governing pollution 

inspections means ‘‘officers or 

employees of the EPA’’ and cannot 

include employees of private 

contractors. Stauffer Chem. Co., 684 

F.2d at 1189–90. The Sixth Circuit, after 

reviewing the language of the Clean Air 

Act and its legislative history, 

determined that ‘‘[c]onstruing 

authorized representatives under 

section 114(a)(2) to include private 

contractors would lead to 

inconsistencies between that section 

and other parts of the Clean Air Act.’’ 

Id. at 1184. Contrary to the Chamber’s 

contention, Stauffer Chemical does not 

hold that ‘‘an ‘authorized representative’ 

of an employee cannot be a third party 

but must be a fellow employee of the 

EPA.’’ (Document ID 1952, p. 10). That 

issue was not before the court. As 

discussed above, the court’s holding in 

Stauffer Chemical was limited to who is 

permitted to serve as an ‘‘authorized 

representative’’ of the EPA 

Administrator under the Clean Air Act 

and whether that includes private 

contractors or only officers and 

employees of the EPA. It has no bearing 

on the meaning of ‘‘authorized 

employee representative’’ in the context 

of 8(e) of the OSH Act. 

The National Federation of 

Independent Business argued ‘‘[t]he 

proposed rule fails to incorporate 

properly the statutory requirement that 

any participation in an inspection by 

persons other than the OSHA inspector 

must be solely for the purpose of ‘aiding 

such inspection,’ and OSHA’s position 

that virtually any activity by a walkingaround individual aids an inspection is 

arbitrary and capricious’’ (Document ID 

0168, p. 6). OSHA rejects the premise 

that any activity by a third-party will 

aid the inspection under the final rule. 

The existing regulation contains a 

provision, which will remain in this 

final rule, requiring that the CSHO first 

determine that ‘‘good cause has been 

shown why accompaniment by a third 

party . . . is reasonably necessary to the 

conduct of an effective and thorough 

physical inspection of the workplace.’’ 

29 CFR 1903.8(c); see also 1903.8(a) 

(representatives of employer and 

employees shall be given an opportunity 

to accompany the CSHO during the 

physical inspection ‘‘for the purpose of 

aiding such inspection’’). 

b. Consistency With Other OSHA 

Regulations 

Some commenters asserted that this 

rule conflicts with other OSHA 

regulations (see, e.g., Document ID 1938, 

p. 4; 1946, p. 4–5). One commenter 

argued that this regulation directly 

conflicts with the definition of 

‘‘authorized employee representative’’ 

in OSHA’s Recordkeeping and 

Reporting regulation at § 1904.35(b)(2)(i) 

(Document ID 1976, p. 6). 

OSHA’s Recordkeeping and 

Recording regulation provides that ‘‘an 

employee, former employee, personal 

representative, and authorized 

employee representative’’ may obtain 

copies of the OSHA 300 Logs and 

defines the term ‘‘authorized employee 

representative’’ as ‘‘an authorized 

collective bargaining agent of 

employees.’’ 29 CFR 1904.35(b)(2), 

(b)(2)(i). That regulation also provides 

for access to OSHA 301 Incident 


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Reports; however, ‘‘employees, former 

employees, and their personal 

representatives’’ may only access OSHA 

301 Incident Reports ‘‘describing an 

injury or illness to that employee or 

former employee.’’ 29 CFR 

1904.35(b)(2)(v)(A) (emphasis added). 

Only ‘‘authorized employee 

representatives’’ for an establishment 

where the agent represents employees 

under a collective bargaining agreement 

have access to OSHA 301 Incident 

Reports for the entire establishment 

(and only the section titled ‘‘Tell us 

about the case’’). See 29 CFR 

1904.35(b)(2)(i), (b)(2)(v)(B). 

‘‘Authorized employee 

representative’’ is defined narrowly in 

the Recordkeeping and Reporting 

regulation because of employee privacy 

interests and the role a union serves in 

safety and health matters when 

employees have an authorized collective 

bargaining agent. In the preamble to the 

2001 Recordkeeping Rulemaking, OSHA 

explained the agency’s decision to grant 

expanded access to the OSHA 301 

Incident Reports by extensively 

discussing the importance of protecting 

employees’ private injury and illness 

information while also recognizing the 

value of analyzing injury and illness 

data to improve injury and illness 

prevention programs. See 66 FR 6053– 

54, 6057. OSHA noted that the records 

access requirements were intended as a 

tool for employees and their 

representatives to affect safety and 

health conditions at the workplace, not 

as a mechanism for broad public 

disclosure of injury and illness 

information. See id. at 6057. OSHA also 

explained that granting access to unions 

serves as a useful check on the accuracy 

of the employer’s recordkeeping and the 

effectiveness of the employer’s safety 

and health program. See id. at 6055. 

Therefore, in defining ‘‘authorized 

employee representative’’ as ‘‘an 

authorized collective bargaining agent of 

employees,’’ OSHA sought to strike a 

reasonable balance between employees’ 

privacy interests and a union 

representative’s more comprehensive 

role representing employees on safety 

and health matters in the workplace. 

See id. (describing the need to apply a 

‘‘balancing test’’ weighing ‘‘the 

individual’s interest in confidentiality 

against the public interest in 

disclosure.’’). Employee privacy 

concerns are not present in the context 

of this rule and, thus, a more inclusive 

definition to include any representative 

authorized by employees, regardless of 

whether the employees have a collective 

bargaining agent, is appropriate to 

effectuate the Act’s goal of ensuring 

employee representation to aid the 

inspection. 

Moreover, in exercising its authority 

to issue regulations implementing the 

walkaround rights granted to employees 

under section 8 of the Act, OSHA is not 

bound by the definition in the 

Recordkeeping and Reporting 

regulation. See, e.g., Env’t Def. v. Duke 

Energy Corp., 549 U.S. 561, 575–76 

(2007) (EPA could interpret term 

‘‘modification’’ differently in two 

different regulations dealing with 

distinct issues). Unlike 29 CFR 

1903.8(c), the Recordkeeping and 

Reporting regulation, including 29 CFR 

1904.35(b)(2)(i), was promulgated under 

a different provision of the Act (section 

8(c)). Accordingly, OSHA is permitted 

to define the same term differently in 

the Recordkeeping and Walkaround 

regulations because they implicate 

different regulatory, compliance, and 

privacy interests. 

Several commenters also contended 

that this rule conflicts with the 

Commission’s existing regulation that 

defines ‘‘authorized employee 

representative’’ as ‘‘a labor organization 

that has a collective bargaining 

relationship with the cited employer 

and that represents affected employees 

who are members of the collective 

bargaining unit,’’ 29 CFR 2200.1(g) (e.g., 

Document ID 1938, p. 4; 1946, p. 4–5; 

1976, p. 7). Some of these commenters 

incorrectly stated that 29 CFR 2200.1(g) 

is an OSHA regulation (e.g., Document 

ID 1976, p. 6). As an initial matter, the 

Commission is an independent agency 

and 29 CFR 2200.1(g) is a procedural 

rule promulgated by the Commission, 

not OSHA. Indeed, Congress delegated 

adjudicated authority to the 

Commission and delegated enforcement 

and rulemaking authority under the 

OSH Act to the Secretary. See Martin v. 

Occupational Safety & Health Rev. 

Comm’n, 499 U.S. 144, 151 (1991) 

(describing the ‘‘split enforcement’’ 

structure of the OSH Act). The 

Commission’s procedural regulations at 

29 CFR 2200.1(g) were promulgated 

under 29 U.S.C. 661(g), which 

authorizes the Commission to 

promulgate rules only as are necessary 

for the orderly transaction of its 

proceedings. Under the ‘‘split 

enforcement’’ structure of the OSH Act, 

the Commission’s procedural rules 

apply only to its adjudicatory 

proceedings, and thus the Commission’s 

interpretation of ‘‘authorized employee 

representative’’ has no bearing on the 

Secretary’s authority to interpret and 

issue regulations on the meaning of 

‘‘authorized employee representative’’ 

in Section 8(e) of the OSH Act. Notably, 

the term ‘‘authorized employee 

representative’’ is not used in the 

Commission rules in an exclusionary 

way, as commenters have argued. Under 

Commission rules, employee 

representatives may participate in 

Commission proceedings even if they 

are not associated with a collective 

bargaining unit. See 29 CFR 2200.1(h); 

2200.20(a); 2200.22(c). 

The Chamber of Commerce argued 

that the proposed rule contradicts the 

Commission’s procedural rule at 29 CFR 

2200.53 by allegedly allowing OSHA 

and ‘‘‘experts’ deemed qualified by 

OSHA inspectors alone’’ access to a 

worksite before the beginning of a 

Commission proceeding to engage in 

discovery (Document ID 1952, p. 15– 

17). There is no such contradiction as 

the Commission’s discovery rules have 

no applicability to OSHA’s 

investigation. OSHA has clear authority 

to access a worksite in order to conduct 

inspections. See 29 U.S.C. 657(a)(1)– 

(a)(2), (b). 

c. Basis for the Rule 

Some commenters argued that OSHA 

‘‘proposed [the rule] without the 

reasoned explanation that is required’’ 

(Document ID 1952, p. 13), ‘‘failed to 

consider obvious and critical issues’’ 

(Document ID 1954, p. 4), failed to 

provide technical data that supports its 

reasonings (Document ID 1776, p. 10), 

and failed to provide a rational basis 

why the regulation will advance the 

agency’s mission (Document ID 1953, p. 

3). 

The APA requires an agency to 

‘‘examine the relevant data and 

articulate a satisfactory explanation for 

its action including a ‘rational 

connection between the facts found and 

the choice made.’ ’’ Air Transp. Ass’n of 

Am., Inc. v. U.S. Dep’t of Agric., 37 

F.4th 667, 675 (D.C. Cir. 2022) (internal 

citations omitted). If an agency relies on 

technical studies, those studies ‘‘must 

be revealed for public evaluation.’’ 

Chamber of Com. of U.S. v. SEC, 443 

F.3d 890, 899 (D.C. Cir. 2006) (quoting 

Solite Corp. v. EPA, 952 F.2d 473, 484 

(D.C. Cir. 1991)). 

OSHA complied with APA 

rulemaking requirements by discussing 

and outlining its policy considerations 

and determinations in making this 

clarification via this rule. OSHA did not 

rely on any technical studies, but 

examined the record and based its 

determination that this rule will aid 

OSHA’s workplace inspections on 

evidence in the record and decades of 

enforcement experience. For example, 

commenters stated that this rule would 

particularly aid OSHA inspections 

involving vulnerable working 

populations in the farming industry and 


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meatpacking industry as well as 

specialized workplaces such as airports 

that involve several different employers 

and contractors (see, e.g., Document ID 

1023, p. 3–4; 1728, p. 8–9; 1763, p. 2– 

3; 1980, p. 3). 

Some commenters also argued the 

rule represents a departure from 

OSHA’s prior position and its policy 

reasons are insufficient to support the 

change (see, e.g., Document ID 1952, p. 

14; 1954, p. 4). The Chamber of 

Commerce, for example, contended that 

OSHA failed to acknowledge ‘‘that it is 

changing position’’ and failed to show 

‘‘good reasons for the new policy.’’ 

(Document ID 1952, p. 14). As explained 

throughout this final rule, by clarifying 

OSHA’s interpretation of the OSH Act 

that third parties can serve as employee 

representatives for the purposes of the 

OSHA walkaround inspection, the 

revised regulation more closely aligns 

with the text of Section 8(e) and serves 

several beneficial purposes. Several 

commenters provided examples of 

third-party representatives who 

accompanied OSHA on walkaround 

inspections (Document ID 1750, p. 3; 

1761, p. 1; 1945, p. 3; 1958, p. 3; 1980, 

p. 2). For example, one commenter who 

served as the director of AFSCME’s 

safety and health program discussed 

serving as a third-party employee 

walkaround representative 

accompanying CSHOs on inspections of 

health care facilities in the 1980s 

(Document ID 1945, p. 3). Furthermore, 

OSHA’s letter of interpretation to Mr. 

Steve Sallman (Sallman letter) clarified 

OSHA’s interpretation that a third party 

may serve as a representative authorized 

by employee (Document ID 0003). 

d. Specificity of the Rule 

Some commenters argued the rule is 

overly broad and will invite chaos 

(Document ID 1113; 1779, p. 2, 3, 5; 

1942, p. 1–2, 3, 5; 1952, p. 13; 1953, p. 

1, 5). Some argued that the rule will 

leave ‘‘open-ended which individuals 

can be considered ‘authorized 

representatives’’’ (Document ID 1952, p. 

13; see also 1782, p. 3–5; 1953, p. 4–5). 

And they argued that, as a result, the 

rule is arbitrary and capricious because 

it will allow a ‘‘multitude of third 

parties’’ as representatives or a 

‘‘seemingly unlimited variety of people 

who can represent employees during a 

plant walkaround’’ thereby leaving 

‘‘employers unable to prepare for which 

individuals may enter their facilities 

during inspections and what such 

individuals may do while on their 

property’’ (Document ID 1782, p. 3–5; 

1952, p. 13; 1953, p. 4–5). Finally, some 

commenters argued that the rule is 

arbitrary and capricious because it lacks 

sufficient specificity of third-party 

qualifications and provides CSHOs too 

much discretion (Document ID 1754, p. 

2; 1776, p. 2–3). 

OSHA disagrees with these concerns. 

First, the final rule provides greater 

clarity and specificity regarding who 

may serve as a third-party representative 

than the prior regulation. OSHA’s prior 

regulation included only two, nonexhaustive examples with no guiding 

criteria for determining if good cause 

had been shown that a third party was 

reasonably necessary. As explained in 

the NPRM, third-party representatives 

are reasonably necessary if they will 

make a positive contribution to a 

thorough and effective inspection. And, 

as discussed in Section IV.A, The Need 

for and Benefits of Third-Party 

Representation, there are many types of 

knowledge, skills, and experience that 

can aid the inspection. Therefore, the 

final rule provides several factors for a 

CSHO to consider when determining if 

good cause has been shown that a thirdparty employee representative is 

reasonably necessary to the conduct of 

an effective and thorough physical 

inspection. 

Further, third-party representatives 

are subject to other inspection-related 

regulations, which allows the CSHO to 

deny access if the representative 

unreasonably disrupts the employer’s 

operations or interferes with the 

inspection. See 29 CFR 1903.7(d), 

1903.8(d). While some commenters 

asserted that this rule leaves them 

unable to ‘‘prepare’’ for the individuals 

who may come to the workplace, 

inspections under the OSH Act are 

unannounced and employers are not 

entitled to advanced notice to ‘‘prepare’’ 

for inspections. See 29 U.S.C. 657(a) 

(authorizing Secretary of Labor to enter, 

inspect, and investigate workplaces 

without delay); 29 U.S.C. 666(f) 

(providing for criminal penalties for 

‘‘[a]ny person who gives advanced 

notice of any inspection’’); see also 

Marshall v. Shellcast Corp., 592 F.2d 

1369, 1371 (5th Cir. 1979) (Congress 

considered the ‘‘ ‘element of surprise’ a 

crucial component’’ of OSHA 

inspections). 

As such, OSHA finds that this rule is 

consistent with APA and the OSH Act. 

2. Public Hearing 

Some commenters asserted that 

OSHA should have held public hearings 

(see, e.g., Document ID 1774, p. 6–7; 

1955, p. 10). As OSHA explained in the 

proposal, because this rulemaking 

involves a regulation rather than a 

standard, it is governed by the notice 

and comment requirements in the APA 

(5 U.S.C. 553) rather than section 6 of 

the OSH Act (29 U.S.C. 655) and 29 CFR 

1911.11. Therefore, the OSH Act’s 

requirement to hold an informal public 

hearing (29 U.S.C. 655(b)(3)) on a 

proposed rule, when requested, does not 

apply to this rulemaking. 

Section 553 of the APA does not 

require a public hearing. Instead, it 

states that the agency must ‘‘give 

interested persons an opportunity to 

participate in the rule making through 

submission of written data, views, or 

arguments with or without opportunity 

for oral presentation’’ (5 U.S.C. 553(c)). 

In the NPRM, OSHA invited the public 

to submit written comments on all 

aspects of the proposal and received 

thousands of comments in response. 

OSHA extended its initial 60-day 

comment period by two weeks in 

response to requests from the public (88 

FR 71329). No commenter identified 

any information that might have been 

submitted at a public hearing that was 

not, or could not have been, submitted 

during the written comment period. 

Accordingly, OSHA finds that interested 

parties had a full and fair opportunity 

to participate in the rulemaking and 

comment on the proposed rule through 

the submission of written comments. 

G. Practical and Logistical Issues 

Commenters raised various questions 

and concerns regarding how OSHA will 

implement and administer this rule. 

Many of these questions are beyond the 

scope of this rulemaking, while others 

are addressed by other regulations or 

enforcement guidance. While OSHA 

cannot anticipate every possible 

scenario, OSHA has provided responses 

below or otherwise herein. CSHOs will 

also continue to conduct inspections in 

accordance with OSHA’s other 

regulations and the FOM. Further, 

OSHA intends to issue additional 

guidance for its CSHOs on 

administering this rule. 

Commenters’ questions and concerns 

can be grouped as follows: (1) how 

employees will authorize their 

walkaround representative(s); (2) how 

many employee walkaround 

representatives are permitted to 

accompany the CSHO; (3) whether 

advance notice of inspections will be 

provided; (4) how delays may impact 

inspections; and (5) how OSHA intends 

to respond to third-party interference or 

disruptions during the walkaround. 

First, many commenters had 

questions about the process by which 

employees would authorize a 

walkaround representative (see, e.g., 

Document ID 1726, p. 3–4; 1748, p. 6; 

1751, p. 4; 1759, p. 2; 1762, p. 2–3; 

1763, p. 5–6, 8; 1775, p. 4–6; 1779, p. 

2; 1782, p. 2–3, 6; 1936, p. 3; 1955, p. 


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4–6, 8–9; 1976, p. 12–14). For example, 

one commenter stated, ‘‘[a]s proposed, 

there are no established procedures for 

an employer’s employees to make a 

designation of an authorized 

representative that is not an employee of 

the employer’’ (Document ID 1779, p. 2). 

Several commenters asked how many 

employees are required to designate a 

representative (see, e.g., Document ID 

1748, p. 6; 1751, p. 1; 1779, p. 5; 1936, 

p. 3; 1942, p. 4–5; 1946, p. 3, 7; 1953, 

p. 5; 1966, p. 5; 1976, p. 12–13), what 

the designation process entails (see 

Document ID 1030; 1759, p. 2; 1946, p. 

3, 7; 1966, p. 5; 1976, p. 12–14; 9901; 

11524; 11275), and whether the 

designation process would include a 

vote (see, e.g., Document ID 1976, p. 10, 

13). Further, the Construction Industry 

Safety Coalition asserted that the rule 

also ‘‘fails to address how a CSHO is to 

identify if the employees have 

designated a third-party representative, 

or when’’ (Document ID 1955, p. 5). 

Commenters also asked whether OSHA 

would require evidence when 

determining that a representative is 

authorized (see, e.g., Document ID 1726, 

p. 3–4). 

Other commenters also asked what 

OSHA would do if faced with requests 

for third-party employee representatives 

from competing unions (Document ID 

1952, p. 3; 11275) as well as nonunionized worksites or worksites with 

unionized and non-unionized 

employees (Document ID 1782, p. 4; 

1933, p. 3; 1960, p. 4–5; 1976, p. 8, 12– 

13; 11275). Some commenters asserted 

that the ‘‘rule does not provide clear 

guidance on how multiple Walkaround 

Representatives should be selected, 

especially when chosen by different 

employees or groups within the 

organization’’ (Document ID 1954, p. 3) 

and on multi-employer worksites 

(Document ID 1960, p. 2–3; 1774, p. 5). 

Neither the OSH Act nor any OSHA 

regulations specify when or how 

employees should authorize their 

walkaround representative(s). As such, 

there is no single or required process by 

which employees can designate a 

walkaround representative. OSHA has 

never had a rigid designation process or 

required documentation to show that a 

representative is authorized. As 

explained above, OSHA has long 

permitted nonemployees to serve as 

employee walkaround representatives, 

and OSHA has not encountered issues 

with the ways employees may authorize 

their representative. Thus, because 

OSHA does not believe such measures 

are necessary and seeks to provide 

flexibility for employees’ designation 

process, OSHA declines to adopt 

specific procedures. 

Likewise, there is no single way for 

employees to inform OSHA that they 

have a walkaround representative 

(whether that representative is an 

employee or a third party). For example, 

OSHA’s FOM provides that in 

workplaces where employees are 

represented by a certified or recognized 

bargaining agent, the highest-ranking 

union official or union employee 

representative on-site would designate 

who participates in the walkaround. See 

OSHA Field Operations Manual, CPL 

002–00–164, Chapter 3, Section VII.A.1. 

Employees could also designate an 

authorized employee representative 

when they authorize them to file an 

OSHA complaint on their behalf. 

Additionally, employees may inform the 

CSHO during the walkaround 

inspection itself or during employee 

interviews, or they may contact the 

OSHA Area Office. This is not an 

exhaustive list but rather some 

examples of ways employees may 

designate their walkaround 

representative(s). 

As explained previously, the OSH Act 

contains no requirement for majority 

support, nor has OSHA ever imposed 

one in determining who is the 

employees’ walkaround representative. 

Cf. OSHA Field Operations Manual, 

CPL 002–00–164, Chapter 3, Section 

VII.A.2 (noting that members of an 

established safety committee can 

designate the employee walkaround 

representative). The OSH Act does not 

require that a specific number or 

percentage of employees authorize an 

employee representative, and OSHA 

declines to do so through this 

rulemaking. However, in a workplace 

with more than one employee, more 

than one employee would be needed to 

authorize the walkaround representative 

pursuant to the language in section 8(e) 

of the OSH Act, which uses the phrase 

‘‘representative authorized by [the 

employer’s] employees.’’ 29 U.S.C. 

657(e). If the CSHO is unable to 

determine with reasonable certainty 

who is the authorized employee 

representative, the CSHO will consult 

with a reasonable number of employees 

concerning matters of safety and health 

in the workplace. See 29 CFR 1903.8(b). 

Second, several commenters asserted 

that the number of third-party 

representatives that employees may 

authorize for a single inspection is 

unclear or stated their opposition to 

having multiple representatives during 

an inspection (Document ID 1937, p. 4; 

1946, p. 3, 7; 1953, p. 5; 1966, p. 5; 

1976, p. 12–13; 9901). For example, the 

Air Conditioning Contractors of 

America claimed that the rule ‘‘lacks 

clear parameters regarding the number 

of third-party representatives allowed 

during a single inspection and fails to 

provide guidance on the management 

and prioritization of multiple requests 

from employees for different 

representatives. This has the potential to 

result in impractical and chaotic 

inspection processes with a multitude of 

third-party participants’’ (Document ID 

1935, p. 1; see also 1030; 11313). 

Similarly, the International Foodservice 

Distributors Association asserted the 

rule ‘‘lacks guidance or proposed 

language on how third-party 

representatives may be selected by the 

employees and any limiting principles 

on the number of representatives who 

may be selected. This will lead to 

confusion for both employees and 

employers’’ (Document ID 1966, p. 5). 

Other commenters noted that the 

number of permitted representatives is 

complicated by unique worksites. For 

instance, the National Association of 

Home Builders (NAHB) questioned how 

‘‘OSHA [will] identify who the 

‘employee representative’ is of a general 

contractor who may only have one 

employee on the particular jobsite, 

while multiple trade subcontractors and 

their employees are also present?’’ 

(Document ID 1774, p. 5; see also 1960, 

p. 2–3). Within the packaging and 

manufacturing industry, the Flexible 

Packaging Association proposes that 

because the rule presents several issues 

and threats ‘‘for a large party of 

employees and their representatives, the 

CSHO, the employer, and his/her 

representatives on the manufacturing 

floor,’’ ‘‘each employee should be 

limited to no more than one 

representative, and the employer should 

be limited to one representative’’ with 

an exception for translators (Document 

ID 1782, p. 2–3). 

Under OSHA’s existing regulations, a 

representative of the employer and a 

representative authorized by its 

employees can accompany the CSHO on 

the inspection, but the CSHO may 

permit additional employer 

representatives and additional 

authorized employee representatives if 

the additional representatives will 

further aid the inspection. See 29 CFR 

1903.8(a). A different employer and 

employee representative may 

accompany the CSHO during each 

different phase of an inspection if this 

will not interfere with the conduct of 

the inspection. Id. OSHA’s FOM further 

explains that where more than one 

employer is present or in situations 

where groups of employees have 

different representatives, it is acceptable 

to have a different employer/employee 

representative for different phases of the 

inspection. OSHA Field Operations 


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Manual, CPL 002–00–164, Chapter 3, 

Section VII.A. However, if the CSHO 

determines that multiple representatives 

would not aid the inspection or if the 

presence of multiple representatives 

interferes with the inspection, the CSHO 

retains the right to deny the right of 

accompaniment to representatives. See 

29 CFR 1903.8(a), (d). 

Third, some commenters questioned 

whether, due to this rule, OSHA would 

begin providing advance notice of an 

inspection to employers, employee 

representatives, or both. For example, 

some commenters, like the American 

Trucking Association, stated that the 

proposed rule did not indicate whether 

OSHA would provide an employer with 

advance notice, prior to arriving at a 

worksite, that a third-party employee 

representative would be accompanying 

OSHA during the walkaround portion of 

its inspection (Document ID 1773, p. 3). 

The Flexible Packing Association 

recommended that OSHA give 

employers advance notice that a thirdparty representative will be 

accompanying the CSHO, ‘‘justify why 

the third-party would assist in an 

effective walkaround,’’ and then give an 

employer ‘‘10 days to respond to OSHA 

on such request’’ (Document ID 1782, p. 

5). 

Several commenters also addressed 

advance notice to employee 

representatives. For example, the AFT 

urged that in inspections where OSHA 

gives advance notice to the employer 

that ‘‘the complainant, union or other 

employee representative must be 

notified at the same time’’ (Document ID 

1957, p. 6). In addition, the Service 

Employees International Union (SEIU) 

suggested that OSHA can give advance 

notice to third parties prior to the 

inspection of airports for the purpose of 

seeking assistance with industryspecific issues such as jurisdiction and 

security clearance, although it is unclear 

if that third party’s assistance would be 

limited to pre-inspection activity or if 

the SEIU also envisioned the third party 

being an employee walkaround 

representative (Document ID 1728, p. 8– 

9). The Office of Advocacy of the U.S. 

Small Business Administration asserted 

that ‘‘it appears to naturally flow from 

the proposed regulation that these nonemployee third-party representatives 

will, for purposes of planning, be given 

advance notice of the inspection so they 

can arrange to meet the inspector at the 

workplace, when notice of the 

inspection is supposed to be strictly 

confidential’’ (Document ID 1941, p. 5 

fn. 23; see also 1955, p. 5). 

The OSH Act generally forbids 

advance notice of OSHA inspections; 

indeed, any person who gives advance 

notice without authority from the 

Secretary or the Secretary’s designees is 

subject to criminal penalties. See 29 

U.S.C. 666(f). However, OSHA 

regulations provide certain exceptions 

to this general prohibition. See 29 CFR 

1903.6(a); OSHA Field Operations 

Manual, CPL 02–00–164, Chapter 3, 

Section II.D (discussing advance notice 

of OSHA inspections). These exceptions 

include: (1) ‘‘cases of apparent 

imminent danger’’ (29 CFR 

1903.6(a)(1)); (2) ‘‘circumstances where 

the inspection can most effectively be 

conducted after regular business hours 

or where special preparations are 

necessary for an inspection (29 CFR 

1903.6(a)(2)); (3) ‘‘[w]here necessary to 

assure the presence of representatives of 

the employer and employees or the 

appropriate personnel needed to aid in 

the inspection’’ (29 CFR 1903.6(a)(3)); 

and (4) ‘‘other circumstances where the 

Area Director determines that the giving 

of advance notice would enhance the 

probability of an effective and thorough 

inspection’’ (29 CFR 1903.6(a)(4)). 

Given the OSH Act’s general 

prohibition against advance notice and 

limited exceptions, OSHA declines to 

further amend the rule to guarantee 

advance notice of inspections to either 

employers or third-party employee 

representatives. Whether or not an 

exception applies depends on the 

particular needs and circumstances of 

the inspection. 

Fourth, and related to advance notice, 

some commenters also asserted that the 

proposed rule could result in delays to 

OSHA’s inspection (see, e.g., Document 

ID 1964, p. 5–6; 1966, p. 3; 1972, p. 8; 

1976, p. 15). Reasons given for potential 

delays include: CSHO difficulty in 

determining who the authorized 

representative is among various vying 

third-party representatives (Document 

ID 1964, p. 5–6), fewer employers 

consenting to OSHA inspections if the 

CSHO is accompanied by a third-party 

employee representative (Document ID 

0040, p. 4–5; 1933, p. 2–3; 1966, p. 3), 

employers failing to notify authorized 

employee representatives after being 

given advance notice of an inspection 

by OSHA (Document ID 1761, p. 3), 

representatives conferring with workers 

on personal issues (Document ID 1782, 

p. 3–4), workers needing to advocate to 

OSHA that their representative is 

reasonably necessary (Document ID 

1972, p. 8), employers subjecting thirdparty representatives to background 

checks or other requirements for entry 

to employer property (Document ID 

1960, p. 5), expansion of the inspection 

resulting from third-party representative 

involvement (Document ID 0040, p. 3), 

employers asserting that their property 

contains proprietary information when 

faced with a third-party representative 

(Document ID 0040, p. 4), and CSHOs 

struggling to exercise their discretion 

because of a lack of guidelines in the 

proposed rule (Document ID 1976, p. 

14–15). 

The issues that have been raised are 

issues that CSHOs have long addressed 

in conducting inspections, and CSHOs 

are experienced and adept at conducting 

inspections without delay and in a 

reasonable manner. See 29 U.S.C. 

657(a). OSHA will use its authority 

under 29 CFR 1903.8(b) to resolve 

potential disputes about third-party 

representatives expeditiously. As 

explained previously, OSHA anticipates 

that the vast majority of employers will 

not deny entry simply because the 

employees’ walkaround representative 

is a third party. However, OSHA will 

obtain a warrant when necessary to 

conduct its inspections. See Barlow’s, 

436 U.S. at 313; see also 29 U.S.C. 

657(a)(1)–(2); 29 CFR 1903.4(a). And, if 

the Secretary is on notice that a 

warrantless inspection will not be 

allowed, OSHA may seek an 

anticipatory warrant to conduct its 

inspection without delay. See 29 CFR 

1903.4(b)(1). Accordingly, OSHA does 

not believe that this rule will result in 

further inspection delays that would be 

detrimental to worker safety and health. 

Last, many commenters had questions 

about how OSHA would handle 

situations where a third party deviated 

from their role as the employees’ 

walkaround representative and engaged 

in conduct unrelated to the inspection— 

particularly conduct that interfered with 

OSHA’s inspection and/or disrupted the 

employer’s operations (see, e.g., 

Document ID 1762, p. 5). As discussed 

in Sections IV.A, IV.C, and IV.H, 

commenters raised a number of 

potential scenarios where third parties 

may have ulterior motives. Commenters 

also raised scenarios where third-party 

representatives may not have ulterior 

motives but nevertheless interfere with 

an inspection by engaging in conduct 

such as ‘‘[having] lengthy discussions of 

process equipment and safety designs, 

or products.’’ (Document ID 1782, p. 3– 

4). 

Many commenters questioned CSHOs’ 

ability to stay in charge of such 

inspections (see, e.g., Document ID 

1030; 1935, p. 1; 1938, p. 5), while 

others offered various suggestions. For 

example, one commenter stated that 

‘‘once third parties are identified, they 

should be governed by the same 

inspection standards as the CSHO’’ 

(Document ID 1762, p. 5). In addition, 

the NRF requested that OSHA ‘‘define 

what constitutes appropriate conduct 


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for an Authorized Representative and 

give the employer the express authority 

to remove an Authorized Representative 

from the premises’’ (Document ID 1776, 

p. 4). The NRF also requested that 

OSHA ‘‘mandate a dress code for third 

parties’’ for the protection of employer 

products and equipment and to prevent 

clothing with ‘‘inappropriate messaging, 

language, campaign information.’’ 

(Document ID 1776, p. 4). 

Commenters’ concerns about the 

CSHOs’ ability to address potential 

interference or disruptions to the 

workplace are unfounded. CSHOs have 

extensive experience conducting 

inspections and handling any 

interference or disruptions that may 

arise. During inspections, CSHOs will 

set ground rules for the inspection to 

ensure all representatives know what to 

expect. While OSHA declines to 

anticipate and categorize every type of 

conduct as appropriate or inappropriate 

or mandate specific rules, such as dress 

codes, OSHA intends to issue further 

guidance to the extent specific issues 

arise. 

In addition, and as explained in 

Chapter 3 of the FOM, the employee 

representative shall be advised that, 

during the inspection, matters unrelated 

to the inspection shall not be discussed 

with employees. OSHA Field 

Operations Manual, CPL 02–00–164, 

Chapter 3, Section V.E. CSHOs will also 

ensure the conduct of inspections will 

not unreasonably disrupt the operations 

of the employer’s establishment. See 29 

CFR 1903.7(d). If disruption or 

interference occurs, CSHOs will 

promptly attempt to resolve the 

situation. Depending on the severity and 

nature of the behavior, a warning may 

suffice in some instances. In other 

instances, the CSHO may need to 

terminate the third party’s 

accompaniment during the walkaround. 

As the FOM explains, the CSHO will 

contact the Area Director or designee 

and discuss whether to suspend the 

walkaround inspection or take other 

action. See OSHA Field Operations 

Manual, Chapter 3, Section V.E. 

H. Liability Issues 

Several commenters raised questions 

concerning liability. Specifically, they 

questioned who would be liable if a 

representative authorized by employees 

is injured, causes injury to others, or 

engages in misconduct (see e.g. 

Document ID 0527, p. 2; 1030; 1762, p. 

2–3; 10253; 11228; 11482), or discloses 

trade secrets (Document ID 1953, p. 7). 

For example, the International 

Foodservice Distributors Association 

asserted that third-party representatives 

who are not affiliated with the 

workplace and/or lack an appropriate 

level of industry experience or adequate 

safety training could be easily injured or 

cause injury during an inspection 

(Document ID 1966, p. 2). The 

Workplace Policy Institute also raised 

concerns about the conduct of thirdparty representatives, who are ‘‘likely’’ 

not state actors and not limited by due 

process requirements (Document ID 

1762, p. 4). Some commenters asked if 

OSHA would bear any liability in these 

circumstances (see, e.g., Document ID 

1976, p. 15; 1835), while other 

commenters asserted that the proposed 

rule would increase employers’ liability 

(see, e.g., Document ID 1933, p. 3). In 

addition, NRF requested that the rule be 

further amended to indemnify an 

employer against any ‘‘violent or 

damaging conduct committed by’’ the 

third-party representative while on site 

or provide for ‘‘felony prosecution of 

any CSHO that abuses their authority 

under the proposed rule’’ (Document ID 

1776, p. 4, 7). Black Gold Farms argued 

that OSHA should train representatives 

on general and industry-specific topics, 

show the employer proof of this 

training, and then assume liability for 

the representative’s actions if they 

violate the employer’s policy or the law 

(Document ID 0046). 

For several reasons, OSHA has 

determined it is unnecessary to amend 

the rule to assign liability or indemnify 

employers. As an initial matter, the OSH 

Act does not seek to ‘‘enlarge or 

diminish or affect in any other manner 

the common law or statutory rights, 

duties, or liabilities of employers and 

employees.’’ 29 U.S.C. 653(b)(4). 

Varying bodies of law, including tort 

and criminal law, already regulate the 

scenarios that commenters have raised, 

and any regulation from OSHA on 

liability or indemnification would 

potentially upend those other laws. In 

fact, commenters identified worker’s 

compensation, tort law, 42 U.S.C. 1983, 

and 18 U.S.C. 202(a) as potentially 

relevant (Document ID 1762, p. 3; 1954, 

p. 4; 1955, p. 2–3; 1976, p. 21 fn. 79). 

OSHA generally is not liable for the 

conduct of authorized employee 

representatives, who are not themselves 

officers or employees of a Federal 

agency. And, to the extent that any 

claim relates to OSHA’s conduct during 

an inspection, under the Federal Tort 

Claims Act (FTCA), the United States is 

not liable for ‘‘[a]ny claim based upon 

an act or omission of an employee of the 

Government, exercising due care, in the 

execution of a statute or regulation, 

whether or not such statute or 

regulation be valid, or based upon the 

exercise or performance or the failure to 

exercise or perform a discretionary 

function or duty on the part of a Federal 

agency or an employee of the 

Government, whether or not the 

discretion involved be abused.’’ 28 

U.S.C. 2680(a). A number of U.S. Circuit 

Court of Appeals have held that general 

administrative inspections conducted 

by OSHA compliance officers fall under 

this ‘‘discretionary function’’ exception 

to the FTCA. See, e.g., Irving v. U.S., 162 

F.3d 154, 164 (1st Cir. 1998). OSHA 

declines to opine on the merits of other 

legal bases for liability because 

determining liability is a fact-specific 

inquiry and it is beyond the scope of 

this rulemaking. 

Commenters raised several 

hypothetical scenarios of injury or 

misconduct but failed to identify any 

specific or substantiated examples of 

when such scenarios have occurred 

during OSHA inspections. OSHA 

therefore anticipates that these scenarios 

involving injury or misconduct will be 

rare, and declines to adopt any training 

requirement for third parties. 

Moreover, this regulation and OSHA’s 

other inspection-related regulations 

contain safeguards to reduce the 

likelihood of any misconduct. This final 

rule places limitations on who can serve 

as the employee walkaround 

representative. Per the rule, the CSHO 

must determine whether a potential 

third-party employee walkaround 

representative will aid the inspection. 

The CSHO will determine whether good 

cause has been shown why the 

individual is reasonably necessary to an 

effective and thorough OSHA 

inspection. The CSHO has authority to 

deny the right of accompaniment to any 

individual who is not reasonably 

necessary to the inspection. Moreover, 

the CSHO has authority to deny 

accompaniment to an employee 

walkaround representative who is 

disrupting the inspection. Further, 

OSHA’s regulation at 29 CFR 1903.9(d) 

provides employers the option to 

request that, in areas containing trade 

secrets, the employee walkaround 

representative be an employee in that 

area or an employee authorized by the 

employer to enter that area, and not a 

third party. OSHA has determined that 

the existing regulatory framework 

provides sufficient protection for the 

hypotheticals that commenters raised. 

In addition, at least one commenter, the 

Utility Line Clearance Safety 

Partnership, noted that some employers 

have existing policies and waivers for 

third parties that enter their sites, 

though OSHA declines to opine on the 

legal sufficiency of such documents 

(Document ID 1726, p. 5). 

Finally, potential abuse of the 

walkaround provision does not 


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Federal Register / Vol. 89, No. 63 / Monday, April 1, 2024 / Rules and Regulations 22593 

2Executive Order 12866 requires agencies to 

consider costs that the regulated community may 

undertake regardless of whether those actions are 

directly required by a standard or regulation. 

OSHA’s requirements under the OSH Act and 

related court decisions require the agency to show 

that an occupational safety and health standard is 

economically feasible. While this analysis is not 

being undertaken to show the feasibility of this rule, 

because it is not a standard, OSHA’s approach to 

this finding does not generally consider activities 

voluntarily undertaken to be costs of a rule for the 

purposes of showing feasibility or, in the context of 

the Regulatory Flexibility Analysis, a significant 

economic impact. The agency has clarified in this 

analysis that some unquantified costs as considered 

by Executive Order 12866 may be incurred and that 

these differ from direct costs of a rule typically 

considered in an OSHA economic feasibility 

analysis. 

necessitate excluding walkaround rights 

for third parties altogether. In cases 

involving the Mine Act, which the 

Secretary of Labor also enforces, courts 

have rejected hypothetical arguments 

that third-party walkaround 

representatives may cause harm or 

abuse their position during an MSHA 

inspection. See Thunder Basin Coal Co., 

56 F.3d at 1281 (noting the potential for 

abuse ‘‘appears limited’’ as designation 

as the miners’ representative does not 

‘‘convey ‘an uncontrolled access right to 

the mine property to engage in any 

activity that the miners’ representative 

wants’’) (quoting Thunder Basin Coal 

Co. v. Reich, 510 U.S. 200, 217 (1994)); 

Kerr-McGee Coal Corp., 40 F.3d at 1264 

(‘‘The motivations of a miners’ 

representative are irrelevant so long as 

the representative, through its actions, 

does not abuse its designation and 

serves the objectives of the Act.’’); Utah 

Power & Light Co., 897 F.2d at 452 

(recognizing mine’s concern that 

walkaround rights may be abused by 

nonemployee representatives but 

holding that potential abuse ‘‘does not 

require a construction of the Act that 

would exclude nonemployee 

representatives from exercising 

walkaround rights altogether’’). OSHA 

agrees. Because an authorized employee 

representative does not have 

uncontrolled access to the employer’s 

property and the CSHO is in control of 

the inspection, the risk of misconduct, 

damage, or injury appears limited. 

I. Other Issues 

Renner Bros. Construction, Inc. asked 

if they would need to fire or reassign 

their current safety representatives 

because of this rule (Document ID 1091). 

Third-party employee representatives 

are not employees or representatives of 

the employer being inspected, nor do 

they have a duty to the employer, and 

thus they should not be a consideration 

when employers make staffing decisions 

related to their safety representatives. 

Additionally, the State Policy 

Network and other commenters that 

submitted a report from the Boundary 

Line Foundation asserted that OSHA 

presented a prior version of the Field 

Operations Manual, CPL 02–00–159 (10/ 

1/2015) (Document ID 0004) ‘‘as a 

document integral to the development 

of and justification for the’’ rule 

(Document ID 1965, p. 22–28; see also 

1967; 1968; 1973; 1975). It next claimed 

that OSHA’s submission of another 

prior Field Operations Manual, CPL 02– 

00–160 (Document ID 0005) into the 

docket misrepresented this FOM as the 

current FOM (see, e.g., Document ID 

1965, p. 26–28). Next, it asserted that 

the FOM has no ‘‘color of authority’’ for 

rulemaking purposes (Document ID 

1965, p. 28–29; see also 1967; 1968; 

1973; 1975). It finally argued that OSHA 

erred in failing to submit into the docket 

the two most recent FOMs (CPL 02–00– 

163 and CPL 02–00–164) (Document ID 

1965, p. 27–28; see also 1967; 1968; 

1973; 1975). 

These comments are unsupported. As 

explained in Section II.B, Regulatory 

History and Interpretive Guidance, 

OSHA submitted into the docket two 

versions of the FOM (CPL 02–00–159 

(10/1/2015), Document ID 0004 and CPL 

02–00–160 (8/2/2016), Document ID 

0005) to explain OSHA’s practice and 

interpretation of 29 CFR 1903.8(c). 

OSHA neither stated nor indicated the 

2016 FOM was submitted as the most 

recent and effective FOM. The two most 

recent versions of the FOM are posted 

on OSHA’s website, available for any 

interested party to review if it so 

wished. See https://www.osha.gov/ 

enforcement/directives/cpl-02-00-164 

and https://www.osha.gov/enforcement/ 

directives/cpl-02-00-163. Furthermore, 

the FOM is merely guidance and does 

not create any duties, rights, or benefits. 

There is no merit to the Boundary Line 

Foundation’s argument that the fact that 

the record does not contain OSHA’s two 

most recent FOMs rendered the public 

‘‘incapable of meaningful participation 

during the public comment period of 

this rulemaking process’’ (Document ID 

1965, p. 27). 

V. Final Economic Analysis and 

Regulatory Flexibility Act Certification 

A. Introduction 

As described above, OSHA is revising 

29 CFR 1903.8(c) to clarify that the 

representative(s) authorized by 

employees may be either an employee of 

the employer or, when reasonably 

necessary to aid in the inspection, a 

third party. Additionally, OSHA’s 

revisions further clarify that third 

parties may be reasonably necessary to 

an OSHA inspection due to skills, 

knowledge, or experience that they 

possess. OSHA has determined that, 

while these revisions may impose 

societal costs and that some employers 

may decide to undertake actions not 

directly required to comply with any 

requirements in this rule, the revisions 

impose no new direct cost burden on 

employers.2

Executive Orders 12866 and 13563 

direct agencies to assess all costs and 

benefits of the intended regulation and, 

if regulation is necessary, to select 

regulatory approaches that maximize 

net benefits (including potential 

economic, environmental, public health 

and safety effects, distributive impacts, 

and equity). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, 

reducing costs, harmonizing rules, and 

promoting flexibility. Executive Order 

14094 reaffirms, supplements, and 

updates Executive Orders 12866 and 

13563 and further directs agencies to 

solicit and consider input from a wide 

range of affected and interested parties 

through a variety of means. 

Under section 6(a) of Executive Order 

12866, Regulatory Planning and Review, 

58 FR 51735 (Sept. 30, 1993), the Office 

of Management and Budget’s (‘‘OMB’’) 

Office of Information and Regulatory 

Affairs (‘‘OIRA’’) determines whether a 

regulatory action is significant and, 

therefore, subject to the requirements of 

the Executive Order and review by 

OMB. Section 3(f) of Executive Order 

12866, as amended by section 1(b) of 

Executive Order 14094, Modernizing 

Regulatory Review, 88 FR 21879 (Apr. 6, 

2023), defines a ‘‘significant regulatory 

action’’ as an action that is likely to 

result in a rule that may: (1) have an 

annual effect on the economy of $200 

million or more in any 1 year (adjusted 

every 3 years by the Administrator of 

OIRA for changes in gross domestic 

product), or adversely affect in a 

material way the economy, a sector of 

the economy, productivity, competition, 

jobs, the environment, public health or 

safety, or State, local, territorial, or tribal 

governments or communities; (2) create 

a serious inconsistency or otherwise 

interfere with an action taken or 

planned by another agency; (3) 

materially alter the budgetary impacts of 

entitlement grants, user fees, or loan 

programs or the rights and obligations of 

recipients thereof; or (4) raise legal or 

policy issues for which centralized 

review would meaningfully further the 

President’s priorities or the principles 

set forth in this Executive order, as 

specifically authorized in a timely 

manner by the Administrator of OIRA in 

each case. OIRA has determined that 


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22594 Federal Register / Vol. 89, No. 63 / Monday, April 1, 2024 / Rules and Regulations 

3The median hourly base wage is $37.77 (per 

Occupational Employment and Wages, May 2022, 

https://www.bls.gov/oes/current/oes195011.

htm#nathttps://www.bls.gov/oes/current/ 

oes195011.htm#nat). A fringe benefits ratio (46 

percent of earnings) is derived from Bureau of Labor 

Statistics Employer Costs for Employee 

Compensation data using variables 

CMU1020000000000D and CMU1030000000000D. 

Also, overhead costs are assumed to be 17 percent 

of the base wage. 

this final rule is a significant regulatory 

action under section 3(f) but not under 

section 3(f)(1) of Executive Order 12866, 

as amended by Executive Order 14094. 

Therefore, a full regulatory impact 

analysis has not been prepared. 

This Final Economic Analysis (FEA) 

addresses the costs and benefits of the 

rule and responds to comments on those 

topics. The agency also evaluates the 

impact of the rule on small entities, as 

required by the Regulatory Flexibility 

Act (5 U.S.C. 605). 

B. Costs 

This final rule imposes no new direct 

cost burden on employers and does not 

require them to take any action to 

comply. This rule merely clarifies who 

can be an authorized employee 

representative during OSHA’s 

walkaround inspection. As explained in 

the Summary and Explanation above, 

this rule does not require or prohibit 

any employer conduct, and an employer 

cannot ‘‘violate’’ this regulation. Any 

costs of a rule are incremental costs— 

meaning, the cost of a change from the 

future (projected from the current 

situation) without the final rule to a 

world where the final rule exists. 

In the NPRM’s Preliminary Economic 

Analysis, OSHA preliminarily 

determined that the proposal did not 

impose direct costs on employers and 

welcomed comments on this 

determination and information on costs 

that OSHA should consider. Many 

commenters stated their belief that the 

final rule will impose additional costs. 

Some commenters, even those who 

expressed concerns about potential 

costs of the rule, acknowledged that 

OSHA’s prior rule allowed third parties 

to accompany OSHA inspectors if good 

cause had been shown that they were 

reasonably necessary to the inspection 

(see, e.g., Document ID 0168, p. 2; 1941, 

p. 3; 1952, p. 2). Many commenters that 

stated the final rule will impose 

additional costs did not articulate 

exactly what changes this rule would 

introduce that would result in cost 

increase, and no commenter provided 

concrete evidence of actual costs it 

would incur because of the rule. 

1. Rule Familiarization 

OSHA considers the cost of rule 

familiarization in many cases as part of 

the economic impact analysis. However, 

it is not necessary for employers to read 

or become familiar with this rule as 

there are no requirements that the 

employer must undertake to be in 

compliance with the rule. If an 

employer does not become familiar with 

this rule, there is no risk of being out of 

compliance or violating the rule. 

Furthermore, this rule is a clarification 

of OSHA’s longstanding practice with 

which employers are already familiar. 

Finally, the regulatory text is very brief. 

Even if employers did choose to read 

the revised regulation, it would take no 

more than a few minutes to do so. 

Here, relying on the U.S. Census’s 

Statistics of U.S. Businesses for 2017, it 

is estimated that the final rule will 

apply to inspections at approximately 

7.9 million establishments. If 

familiarization takes, at most, five 

minutes per establishment and is 

performed by Safety Specialists (SOC 

19–5011 3) or comparable employees, 

the total rule familiarization costs, 

assuming the unlikely event that all 

employers covered by OSHA will read 

this rule, will be approximately $40.5 

million (= 7.9 million × [5/60] hour × 

$37.77 × [100% + 46% + 17%]), or 

about $5 per employer. This 

quantitative estimate portrays an 

unlikely upper bound assuming all 

employers will decide to read this 

regulation. 

2. Training 

Commenters suggested that employers 

would be required to provide safety 

training for third-party representatives 

and would accordingly incur costs for 

such training (see, e.g., Document ID 

1762, p. 2–3; 1782, p. 2–3, 5–6; 1974, p. 

4; 1952, p. 4; 1774, fn. 17; 1976, p. 15). 

For example, NAHB suggested that 

OSHA’s regulations require employers 

to train employees before they may use 

certain equipment, including personal 

protective equipment (PPE) (Document 

ID 1774, fn. 17), and the Phylmar 

Regulatory Roundtable stated that 

OSHA failed to consider the employer’s 

need to provide third-party 

representatives with appropriate safety 

training ‘‘for their personal safety, the 

safety of the workplace, and mitigation 

of liability’’ (Document ID 1974, p. 4). 

OSHA disagrees that employers will 

incur training costs as a result of this 

final rule. Training of third-party 

representatives is not required by the 

rule. OSHA’s rules on training require 

an employer to train their employees. 

Because a third-party employee 

representative is not an employee of the 

employer undergoing an OSHA 

inspection, the employer has no 

obligation to train those individuals. 

Additionally, as stated in the NPRM, 

employers may have policies and rules 

for third parties to ‘‘participate in a 

safety briefing before entering’’ a jobsite. 

Given that such briefings would be 

given to the CSHO, OSHA finds there 

would be no further cost to an employer 

to have an additional visitor present 

during any potential safety briefing 

since any potential briefing would be 

given regardless of the number of 

individuals present. See 88 FR 59831. 

Commenters did not provide 

information that suggested otherwise. 

Based on this, and because such policies 

are not required by this rule, OSHA 

reaffirms that there are no costs 

attributable to this final rule for this 

activity. 

Similarly, some commenters, 

including the Employers Walkaround 

Representative Rulemaking Coalition 

and the Chamber of Commerce, also 

said they would need to train employees 

to educate them on this final rule, or 

communicate with employees regarding 

the role of any non-employee thirdparty representative (see, e.g., Document 

ID 1782, p. 5–6; 1976, p. 23–24; 1952, 

p. 5). As explained above, this rule 

includes no requirement that employers 

provide training and, therefore, any 

associated costs are not attributable to 

this final rule. Since this rule creates no 

new obligations for employers, training 

should be unnecessary. Accordingly, 

OSHA does not attribute costs for 

training to this rule. 

3. Providing PPE 

Several commenters were concerned 

that they would incur costs to provide 

PPE to third-party representatives (see, 

e.g., Document ID 1774, p. 5; 1782, p. 

3; 1937, p. 3; 1938, fn. 2; 1940, p. 3–4; 

1941, p. 4–5; 1952, p. 5; 1976, p. 23). 

For example, NAHB said that general 

contractors do not have ‘‘extra PPE to 

address every potential situation 

requiring PPE on a jobsite,’’ and ‘‘small 

businesses will rarely have enough extra 

PPE or extra equipment that would 

enable all relevant parties to take part in 

an inspection on a moment’s notice’’ 

(Document ID 1774, p. 5). This 

commenter also raises the issue of 

proper PPE fit for third-party 

representatives in light of OSHA’s 

current rulemaking addressing correctly 

fitting PPE in construction (Document 

ID 1774, p. 5). That rulemaking 

addresses how the PPE that employers 

provide to their employees must fit 

properly but it does not introduce any 

obligation regarding the fit of PPE 

loaned or provided to non-employees 

who may be present on the worksite. 

Additionally, UFCW commented that 


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4 In Fiscal Year 2023, OSHA conducted about 

34,000 inspections of the more than 8 million 

employers covered by the OSH Act, which means 

the average employer has about a 0.43 percent 

chance of being inspected in a given year. 

Commonly Used Statistics, available at https://

www.osha.gov/data/commonstats. 

the cost of providing PPE to third-party 

representatives ‘‘is minimal when 

considering the price of PPE and the 

number of OSHA inspections taking 

place in one specific facility’’ 

(Document ID 1023, p. 8). 

In the NPRM, OSHA considered that 

employers may have policies and rules 

for third parties, such as requiring 

visitors to wear PPE on site, but 

preliminarily concluded that this would 

not impose costs to employers because 

‘‘PPE could be supplied from extra PPE 

that might be available on site for 

visitors or could be supplied by the 

third party.’’ 88 FR 59831. This final 

rule does not require employers to have 

policies that require visitors to wear PPE 

on jobsites and, therefore, any 

associated costs are not attributable to 

this final rule. However, where 

employers have such policies, it is 

likely that they would have extra PPE 

available for visitors in accordance with 

their own policies. OSHA’s enforcement 

experience indicates that where 

employers have such policies, it is 

generally the case that those employers 

make PPE available to visitors. 

Nonetheless, while employers may 

provide any extra PPE they have to the 

third-party, the employer is under no 

obligation to provide PPE to third-party 

representatives during the walkaround 

inspection, nor would the employer be 

responsible to ensure proper PPE fit for 

third parties. If the employer does not 

have PPE available for the third-party 

representative, the third party would 

need to supply their own PPE. If the 

third-party representative does not have 

PPE that would allow them to safely 

accompany the CSHO, the 

representative would be unable to 

accompany the CSHO in any area where 

PPE is required. Accordingly, OSHA has 

determined that employers will incur no 

costs associated with the provision of 

PPE to third-party representatives as a 

result of this rule. 

4. Policy Development, Revisions, and 

Planning 

Some commenters, including the 

Office of Advocacy of the U.S. Small 

Business Administration and the 

Employers Walkaround Representative 

Rulemaking Coalition, said that this rule 

would impose costs related to preparing 

or updating policies and procedures 

around third-party visitors (see, e.g., 

Document ID 1782, p. 5–6; 1941, p. 4– 

5; 1974, p. 4; 1976, p. 23). As stated 

above, this final rule merely clarifies 

longstanding OSHA practice to permit 

third-party representatives to 

accompany CSHOs on inspections. 

Since this rule creates no new 

obligations for employers, it should be 

unnecessary for employers to revise any 

policies or procedures that are currently 

in place. 

5. Legal Advice and Consultations 

Some commenters said that they 

would need to obtain additional legal 

advice or consult with legal counsel, or 

otherwise would incur legal costs 

related to this rule (see, e.g., Document 

ID 1776, p. 7; 1782, p. 5–6; 1952, p. 5). 

For example, NAHB said that 

‘‘employers may accumulate additional 

and unanticipated costs for consulting 

with counsel on how they and their 

respective employees should handle 

these interactions [with third-party 

representatives]’’ (Document ID 1774, p. 

4), and the Employers Walkaround 

Rulemaking Coalition stated that 

employers would incur ‘‘legal fees for 

managing more complex and fraught 

inspection interactions’’ (Document ID 

1976, p. 23). This commenter offered no 

evidence to support its assertion that 

interactions during inspections would 

be more difficult as a result of this rule. 

As stated above, this final rule simply 

clarifies who can be an authorized 

employee representative during OSHA’s 

walkaround inspection. The rule creates 

no new obligations for employers, and 

OSHA disagrees with the assertion that 

the rule creates a need for employers to 

consult with legal counsel. Furthermore, 

as discussed in other sections, the rule 

creates no obligation for employers to 

consult with legal counsel and 

therefore, OSHA attributes no costs to 

this voluntary activity. 

6. Insurance and Liability Costs 

Some commenters, including the 

Flexible Packaging Association, the 

Alliance for Chemical Distribution, and 

the Workplace Policy Institute said that 

this rule would raise their insurance 

premiums, necessitate purchasing 

additional liability or workers’ 

compensation insurance to cover 

injuries to non-employees, or otherwise 

create liability risks for employers (see, 

e.g., Document ID 1726, p. 8; 1762, p. 

2–3; 1774, p. 3; 1974, p. 4–5; 1976, p. 

21; 1781, p. 3; 1782, p. 5–6; 1952, p. 5). 

The Workplace Policy Institute stated 

that OSHA’s liability insurance, rather 

than the employer’s insurance, should 

cover injuries to third-party 

representatives to avoid imposing 

significant additional burden on 

employers (Document ID 1762, p. 3). 

OSHA has determined that, as a result 

of this final rule, employers will not 

incur costs associated with insurance 

and liability for several reasons. First, 

because employers already have third 

parties who may come onto their 

worksites for a variety of reasons 

unrelated to an OSHA inspection, 

employers’ insurance policies should 

already account for risks related to the 

presence of third parties. Second, given 

that there is an extremely low likelihood 

that an average employer would be 

inspected by OSHA,4 that a third-party 

representative would be present during 

that inspection, and that that third party 

would be injured on the employer’s 

premises, insurers would not see that as 

something necessitating additional 

insurance coverage or higher premiums. 

Finally, as OSHA explained in the 

Summary and Explanation, the CSHO 

has the authority to deny 

accompaniment to an employee 

walkaround representative who is 

disrupting the inspection, and would 

exclude a representative from the 

walkaround if they are acting in a 

manner that creates a dangerous 

situation for themselves or others (see 

Section III, Summary and Explanation). 

No commenter provided any data or 

information other than speculation that 

premiums would increase. Accordingly, 

OSHA has determined that employers 

will incur no new costs associated with 

insurance and liability as a result of this 

final rule. 

7. Protecting Trade Secrets and 

Confidential Business Information 

Some commenters, including the 

Chamber of Commerce, expressed 

concern that they would incur costs 

associated with protecting trade secrets 

or confidential business information 

during an inspection where a thirdparty representative was present, or 

from the harm resulting from their 

disclosure (see, e.g., Document ID 1952, 

p. 5). Similarly, some commenters, such 

as the Flexible Packaging Association 

and the Office of Advocacy of the U.S. 

Small Business Administration, said 

that they would incur costs associated 

with preparing and executing 

nondisclosure agreements (see, e.g., 

Document ID 1976, p. 23; 1782, p. 5–6; 

1941, p. 4–5). 

OSHA has determined that, as a result 

of this rule, employers will not incur 

costs associated with the protection of 

trade secrets or the preparation of 

nondisclosure agreements. As explained 

in the NPRM, under 29 CFR 1903.9(d), 

employers maintain the right to request 

that areas of their facilities be off-limits 

to representatives who do not work in 

that particular part of the facility. See 88 


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5State Plan participation is voluntary, and states 

are aware of the requirements—including those to 

adopt standards and other regulations in order to 

remain at least as effective as Federal OSHA— 

before undertaking the process to establish a State 

Plan. The continued participation by states in the 

OSHA State Plan program indicates that any costs 

associated with complying with the requirements of 

participation do not outweigh the benefits a state 

anticipates realizing as a result of participation in 

the program. 

FR 59826, 59830–31. This final rule 

does not alter or limit employers’ rights 

under section 1903.9(d) and, therefore, 

employers should not incur costs 

related to the protection of trade secrets 

or confidential business information. To 

the extent employers choose to take 

additional action to protect trade 

secrets, including the use of 

nondisclosure agreements, the ensuing 

costs would be the result of voluntary 

actions taken by the employer. 

8. Hiring Experts 

Some commenters were concerned 

about incurring additional costs 

associated with hiring experts (see, e.g., 

Document ID 1941, p. 4–5; 1782, p. 5– 

6). For example, the Office of Advocacy 

of the U.S. Small Business 

Administration stated that employers 

may incur costs from ‘‘providing 

additional staff and experts (including 

possible outside experts) to correspond 

to the variety of non-employee thirdparty participants during inspections 

and related activities’’ (Document ID 

1941, p. 5). As explained above, this 

final rule clarifies longstanding OSHA 

practice. The final rule creates no new 

obligations for employers, so it should 

be unnecessary for employers to hire 

experts or other staff in response to the 

rule. Additionally, the final rule does 

not require employers to hire experts or 

other staff, so if employers choose to do 

so, the costs of such would derive from 

the employer’s voluntary action. 

9. Costs to State Plan States 

The State Policy Network commented 

that State Plan states would need to 

update their rules on third-party 

representation (Document ID 1965, p. 9). 

While this is true, OSHA-approved State 

Plans must routinely adopt standards 

and other regulations in order to remain 

at least as effective as Federal OSHA, 

which is a condition of the State Plan’s 

continued existence. See also the 

discussion of State Plan obligations in 

Section VIII. State Plans take on a 

variety of forms and the method for each 

to adopt a rule varies widely. As a 

result, OSHA is unable to determine 

what, if any, opportunity costs are 

associated with State Plans adopting 

Federal OSHA rules. The agency 

believes these activities are already an 

anticipated part of the State Plan’s 

budget (part of which is provided by the 

Federal Government) and will not 

represent spending above a State Plan’s 

established budget.5

10. Societal Costs 

As explained in the NPRM, this 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. 88 FR 59831. 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. Id. This 

opportunity cost is not compensated by 

the employer undergoing the OSHA 

inspection and it is not a monetary 

burden on that employer. Id. 

The American Petroleum Institute 

(API) commented that it was not 

reasonable for OSHA to conclude that 

the rule does not impose costs on 

employers because that would mean 

either third-party representatives will 

provide their services at no cost, or 

OSHA intends either employees or 

taxpayers to pay for their time 

(Document ID 1954, p. 1–2; see also 

1091). In an attempt to calculate the cost 

of compensating third-party 

representatives for time spent 

accompanying CSHOs on walkaround 

inspections, API pointed to OSHA’s FY 

2022 Congressional Budget Justification, 

in which OSHA requests $63,500,000 

for Compliance Assistance-State 

Consultation to provide a total of 20,139 

visits performed by all Consultation 

programs (Document ID 1954, p. 2). 

Based on these data, API concluded that 

OSHA’s cost for providing onsite 

consultation services is approximately 

$3,153 per engagement and, ‘‘[u]sing 

this information as a proxy for thirdparty walkaround representative(s), 

participating in 90,000 inspections [per 

year],’’ the cost impact is $238.8 million 

(Document ID 1954, p. 2). 

As an initial matter, this final rule 

does not require a third-party 

representative to be selected or 

participate in an inspection, nor does it 

require employees or taxpayers to pay 

for third-party representatives’ time. 

Third-party representatives are 

generally employees of another 

organization (e.g., labor union, advocacy 

group, worker justice coalition, etc.) 

who are paid by that group. Third-party 

representatives’ job duties would 

include providing employee 

representation, assistance, or support 

during OSHA inspections and in other 

situations. Therefore, third-party 

representatives are not paid by the 

employer under inspection, the 

employer’s employees, or the U.S. 

Government; rather, they are paid by the 

organizations that employ them. 

Similarly, it is not true that OSHA will 

need to expend resources to train 

CSHOs on ‘‘new responsibilities’’ under 

the rule (see, e.g., Document ID 1938, p. 

10), because any CSHO training will be 

integrated into existing ongoing training 

curriculum and not impose any new 

resource requirements on the agency. 

Accordingly, OSHA’s conclusion that 

the final rule will not impose direct 

costs on employers does not mean that 

employees or taxpayers will bear the 

cost instead. 

Furthermore, API’s interpretation of 

OSHA’s FY 2022 Congressional Budget 

Justification and the application of those 

figures is incorrect for several reasons. 

First, the Congressional Budget 

Justification does not represent the 

actual budget of the agency and should 

not be interpreted as such. In this case, 

the FY 23 budget for State Compliance 

Assistance programs is $62,661,000— 

$839,000 less than OSHA’s request in 

FY 22. 

Second, some of the budget of the 

State Consultation program is spent on 

activities other than the salaries of the 

consultants. The funding includes the 

administrative costs of running the 

program, training and travel costs for 

the consultants, outreach and 

educational support, the administration 

of OSHA’s Safety and Health 

Recognition Program, and other 

activities. There are no centralized 

administrative costs of third-party 

representation. To use the full budget of 

the State Consultation programs as the 

numerator in this equation would 

grossly overstate the costs of a thirdparty representative’s participation by 

including irrelevant costs. 

Third, the activities of an OSHA 

consultant and a third-party 

representative are different and not 

directly comparable. A consultant does 

work both before the consultation visit 

and after. They prepare a summary 

report about their visit and provide 

follow up services to the employers they 

are working with. On the other hand, a 

third-party representative simply 

accompanies the CSHO during an 

inspection. Even if one derived a perengagement cost that stripped out 

unrelated administrative costs, the 

consultant would dedicate more hours 

to each engagement than would a thirdparty representative. 

Finally, it is not correct to assume a 

third-party representative would 

participate in every OSHA inspection. 

While OSHA does not collect data on 

the frequency of third-party 

representative participation in OSHA 


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inspections, based on anecdotal 

evidence from CSHOs, employees are 

more typically represented by another 

employee during the walkaround 

inspection. When preparing a regulatory 

impact analysis, the cost of a rule is 

measured as incremental costs—the cost 

to go from the state of the world in the 

absence of a rule to the state of the 

world if the rule were promulgated. 

Under the previous rule, third-party 

representatives were already permitted 

to participate in OSHA inspections. So, 

the incremental costs of the rule would 

be the additional inspections that thirdparty representatives will now 

participate in that they would not have 

participated in before. OSHA does not 

collect data on the frequency of thirdparty participation in inspections and so 

is unable to determine the number of 

inspections that would newly involve 

third-party representatives. But, since 

this rule clarifies existing rights and 

does not expand or grant new rights, the 

number is likely to be very small. 

In sum, OSHA does not collect data 

on the frequency of third-party 

participation in inspections, nor has the 

agency attempted to estimate how many 

inspections a third-party representative 

might participate in as a result of this 

rule. Because these data are not 

available, OSHA acknowledged the 

existence of, but has not attempted to 

estimate, societal costs for this analysis. 

As discussed above, OSHA also 

acknowledges that there are potentially 

some unquantified costs of activities 

that employers may voluntarily 

undertake as a result of this rule. 

However, the agency finds that this final 

rule does not impose any new direct 

cost burden on employers. 

C. Benefits 

While there are no new costs borne by 

employers associated with this final 

rule, amending section 1903.8(c) will 

reinforce the benefits of the OSH Act. 

Third-party representatives—given their 

knowledge, expertise, or skills with 

hazardous workplace conditions—can 

act as intermediaries and improve 

communication about safety issues 

between employees and the CSHO. 

Improved communication can reduce 

workplace injuries and related costs 

such as workers’ compensation or 

OSHA fines. As discussed in more 

detail in Section III, Summary and 

Explanation, this final rule will enable 

employees to select trusted and 

knowledgeable representatives of their 

choice, which will improve employee 

representation during OSHA 

inspections. Employee representation is 

critical to ensuring OSHA inspections 

are thorough and effective. 

As illustrated by the examples set 

forth in Section III, Summary and 

Explanation, this final rule has 

important benefits on the effectiveness 

of OSHA’s inspections and worker 

safety and health. Indeed, the record 

demonstrates that some of these benefits 

accrue in particular to underserved 

communities that are likely to benefit 

from third-party representatives with 

language or cultural competencies or 

trusted relationships with workers. 

These benefits are not the result of 

actions taken or not taken by employers 

necessarily, but instead, from the 

nonquantifiable societal costs of the 

third-party representatives’ time. OSHA 

has not attempted to quantify these 

benefits since—unlike injuries avoided 

and fatalities prevented—they are 

relatively intangible. Executive Order 

12866, as amended by Executive Order 

14094, encourages agencies to quantify 

benefits to the extent reasonably 

possible, but to articulate them in detail, 

qualitatively, when they are not. As 

outlined throughout the preamble, 

OSHA has provided extensive 

explanation and information to support 

the agency’s belief that the benefits of 

the rule, while unquantified, are 

substantial. 

D. Regulatory Flexibility Certification 

In accordance with the Regulatory 

Flexibility Act, 5 U.S.C. 601 et seq., 

OSHA examined the regulatory 

requirements of the final rule to 

determine if they would have a 

significant economic impact on a 

substantial number of small entities. As 

indicated in Section V, Final Economic 

Analysis, the final rule may have 

familiarization costs of approximately 

$5 per establishment where employers 

are aware of and decide to read this 

regulation. The rule does not impose 

any additional direct costs of 

compliance on employers, whether large 

or small. Accordingly, the final rule will 

not have a significant impact on a 

substantial number of small entities. 

Some commenters, including the 

Office of Advocacy of the U.S. Small 

Business Administration and the 

National Federation of Independent 

Business, disagreed (see, e.g., Document 

ID 0047; 0168, p. 6–7; 1774, p. 4–5; 

1941, p. 3–6; 1952, p. 5; 5793). For 

example, the Office of Advocacy of the 

U.S. Small Business Administration 

stated that OSHA’s certification that the 

proposed rule would not have a 

significant impact on a substantial 

number of small entities was 

‘‘improper’’ because OSHA failed to 

provide a ‘‘factual basis’’ for 

certification (Document ID 1941, p. 4). 

For the reasons explained in detail 

above, OSHA estimates that this rule 

potentially imposes an optional onetime cost for familiarization of 

approximately $5 per establishment. 

Otherwise, the rule has no direct 

requirements for employers and no 

more than de minimis costs of activities 

employers may voluntarily undertake as 

a result of the final rule. The agency 

considered ‘‘direct and foreseeable 

costs’’ in the NPRM and this final rule 

and commenters offered nothing more 

than speculative costs that are neither 

required by the rule nor are they 

reasonable activities for employers to 

undertake. As explained in the NPRM 

and this final rule, the rule clarifies who 

can be an authorized representative 

during OSHA’s walkaround inspection. 

It does not impose new cost burdens on 

employers or require them to take any 

action apart from the potential rule 

familiarization cost of $5 per employer 

that decides to read it. Therefore, the 

final rule will not have a significant 

economic impact on a substantial 

number of small entities. 

For the purposes of illustrating the 

threshold cost necessary for a rule to 

have a significant economic impact 

(costs that are equal to or greater than 

one percent of revenue), the agency 

presents the following. Table 1 below 

shows revenue per average 

establishment based on 2017 County 

Business Patterns and Economic Census 

(the most recent year that reports data 

at the level necessary to perform this 

analysis) and the one percent threshold 

in dollars for selected industries and 

size classes. OSHA looked at 

construction, manufacturing, and 

healthcare as industries that may be 

more likely to be inspected by OSHA or 

where there may be higher impacts. The 

agency also looked at both 

establishments with fewer than 500 

employees (which roughly corresponds 

to or captures all small entities as 

defined by the U.S. Small Business 

Administration) as well as those with 

fewer than 20 employees, since some 

construction and healthcare employers 

are more likely to be very small. The 

table below also shows the hours that 

would need to be spent on compliance 

activities by a supervisor with a loaded 

wage of about $94 (using the wage of 

Standard Occupation Classification 

code 11–1021 General and Operations 

Managers from the U.S. Bureau of Labor 

Statistics Occupational Employment 

and Wage Survey) in order to meet that 

threshold. Based on these calculations, 

a small entity would need to dedicate 

from nearly 100 hours to as many as 

2,900 hours to compliance activities in 


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order to exceed that threshold, 

depending on the industry. For 

reference, this is the equivalent of more 

than two weeks of full-time work 

(assuming a 40-hour work week) up to 

one and a half full-time employees 

dedicating all of their work time to 

compliance activities. For employers 

with fewer than 20 employees, those 

figures range from 35 hours—nearly a 

full week of work—to more than 1,000 

hours—equal to half of one full-time 

employee’s work time in a year. 

TABLE 1—HOURS TO REACH SIGNIFICANT ECONOMIC IMPACT, SELECT INDUSTRIES BY NAICS INDUSTRY, <500 

EMPLOYEES

NAICS NAICS description Establishments Revenue 

($1,000) 

Revenue per 

establishment 

($1,000) 

1% of revenue 

per 

establishment 

Manager 

per hour 

wages 

Hours to 

exceed 1% 

2361 ........... Residential Building Construction ................ 171,322 $253,139,895 $1,478 $14,776 $93.71 158 

2362 ........... Nonresidential Building Construction ........... 41,400 324,165,303 7,830 78,301 93.71 836 

2371 ........... Utility System Construction .......................... 17,634 79,475,796 4,507 45,070 93.71 481 

2372 ........... Land Subdivision .......................................... 4,874 8,476,481 1,739 17,391 93.71 186 

2373 ........... Highway, Street, and Bridge Construction ... 8,971 83,786,185 9,340 93,397 93.71 997 

2379 ........... Other Heavy and Civil Engineering Construction.4,165 14,777,633 3,548 35,481 93.71 379 

2381 ........... Foundation, Structure, and Building Exterior 

Contractors.

92,477 161,721,189 1,749 17,488 93.71 187 

2382 ........... Building Equipment Contractors .................. 180,621 321,134,919 1,778 17,779 93.71 190 

2383 ........... Building Finishing Contractors ..................... 115,503 122,271,617 1,059 10,586 93.71 113 

2389 ........... Other Specialty Trade Contractors .............. 69,138 137,034,126 1,982 19,820 93.71 212 

311 ............. Food Manufacturing ..................................... 23,740 174,677,989 7,358 73,580 93.71 785 

312 ............. Beverage and Tobacco Product Manufacturing.8,518 31,557,244 3,705 37,048 93.71 395 

313 ............. Textile Mills .................................................. 1,749 11,059,006 6,323 63,230 93.71 675 

314 ............. Textile Product Mills ..................................... 5,544 10,384,706 1,873 18,731 93.71 200 

315 ............. Apparel Manufacturing ................................. 5,686 8,368,242 1,472 14,717 93.71 157 

316 ............. Leather and Allied Product Manufacturing .. 1,131 2,775,454 2,454 24,540 93.71 262 

321 ............. Wood Product Manufacturing ...................... 12,960 50,791,296 3,919 39,191 93.71 418 

322 ............. Paper Manufacturing .................................... 2,592 37,676,474 14,536 145,357 93.71 1,551 

323 ............. Printing and Related Support Activities ....... 24,189 45,426,490 1,878 18,780 93.71 200 

324 ............. Petroleum and Coal Products Manufacturing.1,117 30,652,067 27,441 274,414 93.71 2,928 

325 ............. Chemical Manufacturing .............................. 9,976 138,356,916 13,869 138,690 93.71 1,480 

326 ............. Plastics and Rubber Products Manufacturing.9,574 82,161,688 8,582 85,818 93.71 916 

327 ............. Nonmetallic Mineral Product Manufacturing 11,175 48,381,252 4,329 43,294 93.71 462 

331 ............. Primary Metal Manufacturing ....................... 3,256 48,567,821 14,916 149,164 93.71 1,592 

332 ............. Fabricated Metal Product Manufacturing ..... 50,939 188,740,011 3,705 37,052 93.71 395 

333 ............. Machinery Manufacturing ............................. 20,542 122,991,169 5,987 59,873 93.71 639 

334 ............. Computer and Electronic Product Manufacturing.10,603 67,937,359 6,407 64,074 93.71 684 

335 ............. Electrical Equipment, Appliance, and Component Manufacturing.4,626 33,346,239 7,208 72,084 93.71 769 

336 ............. Transportation Equipment Manufacturing .... 9,295 87,082,439 9,369 93,687 93.71 1,000 

337 ............. Furniture and Related Product Manufacturing.13,960 36,138,030 2,589 25,887 93.71 276 

339 ............. Miscellaneous Manufacturing ....................... 26,481 55,483,581 2,095 20,952 93.71 224 

611 ............. Educational Services .................................... 97,786 137,228,479 1,403 14,034 93.71 150 

621 ............. Ambulatory Health Care Services ................ 530,341 602,083,936 1,135 11,353 93.71 121 

622 ............. Hospitals ....................................................... 1,712 41,733,980 24,377 243,773 93.71 2,601 

623 ............. Nursing and Residential Care Facilities ....... 56,163 113,790,097 2,026 20,261 93.71 216 

624 ............. Social Assistance ......................................... 155,830 145,159,610 932 9,315 93.71 99 

Source: OSHA, based on 2017 County Business Patterns and Economic Census. 

HOURS TO REACH SIGNIFICANT ECONOMIC IMPACT, SELECT INDUSTRIES BY NAICS INDUSTRY, <20 EMPLOYEES

NAICS NAICS description Establishments Revenue 

($1,000) 

Revenue per 

establishment 

($1,000) 

1% of revenue 

per 

establishment 

Manager 

per hour 

wages 

Hours to 

exceed 1% 

2361 ........... Residential Building Construction ................ 166,548 $142,652,292 $857 $8,565 $93.71 91 

2362 ........... Nonresidential Building Construction ........... 34,342 83,675,671 2,437 24,365 93.71 260 

2371 ........... Utility System Construction .......................... 13,854 18,796,751 1,357 13,568 93.71 145 

2372 ........... Land Subdivision .......................................... 4,586 4,394,749 958 9,583 93.71 102 

2373 ........... Highway, Street, and Bridge Construction ... 6,205 13,358,821 2,153 21,529 93.71 230 

2379 ........... Other Heavy and Civil Engineering Construction.3,550 4,180,174 1,178 11,775 93.71 126 

2381 ........... Foundation, Structure, and Building Exterior 

Contractors.

83,239 63,851,419 767 7,671 93.71 82 

2382 ........... Building Equipment Contractors .................. 161,010 111,658,403 693 6,935 93.71 74 

2383 ........... Building Finishing Contractors ..................... 107,882 57,678,342 535 5,346 93.71 57 

2389 ........... Other Specialty Trade Contractors .............. 62,284 52,959,403 850 8,503 93.71 91 

311 ............. Food Manufacturing ..................................... 17,010 20,699,769 1,217 12,169 93.71 130 

312 ............. Beverage and Tobacco Product Manufacturing.6,913 7,189,394 1,040 10,400 93.71 111 

313 ............. Textile Mills .................................................. 1,122 1,357,262 1,210 12,097 93.71 129 

314 ............. Textile Product Mills ..................................... 4,685 2,499,124 533 5,334 93.71 57 

315 ............. Apparel Manufacturing ................................. 4,789 2,306,249 482 4,816 93.71 51 


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6As mentioned previously, the average employer 

has a 0.43 percent chance of being inspected by 

OSHA annually. At the current rate of inspection 

and enforcement staffing levels, it would take 

OSHA more than 100 years to inspect every covered 

workplace one time. See Commonly Used Statistics, 

available at https://www.osha.gov/data/ 

commonstats. 

HOURS TO REACH SIGNIFICANT ECONOMIC IMPACT, SELECT INDUSTRIES BY NAICS INDUSTRY, <20 EMPLOYEES— 

Continued 

NAICS NAICS description Establishments Revenue 

($1,000) 

Revenue per 

establishment 

($1,000) 

1% of revenue 

per 

establishment 

Manager 

per hour 

wages 

Hours to 

exceed 1% 

316 ............. Leather and Allied Product Manufacturing .. 922 623,259 676 6,760 93.71 72 

321 ............. Wood Product Manufacturing ...................... 9,230 9,107,739 987 9,868 93.71 105 

322 ............. Paper Manufacturing .................................... 1,138 2,503,951 2,200 22,003 93.71 235 

323 ............. Printing and Related Support Activities ....... 20,213 11,430,249 565 5,655 93.71 60 

324 ............. Petroleum and Coal Products Manufacturing.488 2,148,587 4,403 44,028 93.71 470 

325 ............. Chemical Manufacturing .............................. 6,048 14,751,260 2,439 24,390 93.71 260 

326 ............. Plastics and Rubber Products Manufacturing.5,078 8,127,328 1,600 16,005 93.71 171 

327 ............. Nonmetallic Mineral Product Manufacturing 6,589 8,840,877 1,342 13,418 93.71 143 

331 ............. Primary Metal Manufacturing ....................... 1,806 3,595,790 1,991 19,910 93.71 212 

332 ............. Fabricated Metal Product Manufacturing ..... 36,783 34,117,477 928 9,275 93.71 99 

333 ............. Machinery Manufacturing ............................. 13,539 18,377,762 1,357 13,574 93.71 145 

334 ............. Computer and Electronic Product Manufacturing.7,057 10,239,147 1,451 14,509 93.71 155 

335 ............. Electrical Equipment, Appliance, and Component Manufacturing.3,011 4,501,315 1,495 14,950 93.71 160 

336 ............. Transportation Equipment Manufacturing .... 5,847 9,466,353 1,619 16,190 93.71 173 

337 ............. Furniture and Related Product Manufacturing.11,211 7,486,646 668 6,678 93.71 71 

339 ............. Miscellaneous Manufacturing ....................... 22,726 14,022,304 617 6,170 93.71 66 

621 ............. Ambulatory Health Care Services ................ 446,980 289,281,532 647 6,472 93.71 69 

622 ............. Hospitals ....................................................... 118 1,144,688 9,701 97,007 93.71 1,035 

623 ............. Nursing and Residential Care Facilities ....... 21,683 9,296,715 429 4,288 93.71 46 

624 ............. Social Assistance ......................................... 99,490 32,772,130 329 3,294 93.71 35 

Source: OSHA, based on 2017 County Business Patterns and Economic Census. 

OSHA estimates for the cost of 

compliance with a rule assume that 

employers will take the most rational, 

lowest-cost option to comply. It is well 

known that OSHA only inspects a small 

fraction of workplaces in a given year 

and most businesses will never be 

subject to an OSHA inspection.6 Only a 

small subset of those worksites 

inspected annually will have a thirdparty representative accompanying the 

CSHO because of the revisions to this 

final rule. While OSHA does not 

generally establish a threshold for what 

is considered a ‘‘substantial number of 

small entities,’’ other agencies in the 

Department of Labor, including the 

Employment and Training 

Administration and the Wage and Hour 

Division, define a substantial number to 

be more than 15 percent (see 80 FR 

62957, 63056; 79 FR 60634, 60718). 

Commenters did not present any 

reasonable argument that a substantial 

number of employers (much less a 

substantial number of small employers) 

would dedicate a week or more to 

activities not required by OSHA for an 

inspection that only has a very small 

chance of occurring. Again, apart from 

the rule familiarization cost of $5 per 

employer that chooses to read it, OSHA 

finds that employers will incur no direct 

costs because of this rule. However, 

even if OSHA were incorrect in 

estimating that there were no such 

additional direct costs, this analysis 

shows that it is not reasonable to 

assume that such costs would have a 

significant economic impact. Therefore, 

OSHA certifies that the final rule will 

not have a significant economic impact 

on a substantial number of small 

entities. 

E. Small Business Regulatory 

Enforcement Fairness Act 

OSHA did not convene a Small 

Business Advocacy Review panel under 

the Small Business Regulatory 

Enforcement Fairness Act of 1996 

(SBREFA). The Chamber of Commerce 

asserted that OSHA failed to comply 

with requirements under SBREFA 

(Document ID 1952, p. 4–5). The 

Employers Walkaround Representative 

Rulemaking Coalition recommended 

that OSHA voluntarily establish a Small 

Business Advocacy Review (SBAR) 

panel to receive input directly from 

small businesses (Document ID 1976, p. 

26). 

OSHA considers the possibility of 

disproportionate impact on small 

businesses when deciding whether a 

SBAR panel is warranted. As explained 

above, because OSHA preliminarily 

determined that the proposed rule 

would not result in a significant 

economic impact on a substantial 

number of small entities (see 88 FR 

59831), OSHA determined that a SBAR 

panel was not required. Nothing in the 

record has disturbed OSHA’s 

preliminary determination that this rule 

will not have a significant economic 

impact on a substantial number of small 

entities, nor did OSHA’s threshold 

calculations indicate that the 

preliminary determination was 

incorrect. Therefore, OSHA has 

concluded that a SBAR panel was not 

required for this rule. 

VI. Office of Management and Budget 

(OMB) Review Under the Paperwork 

Reduction Act 

This rule for Worker Walkaround 

Representative Designation Process 

contains no collection of information 

requirements subject to OMB approval 

under the Paperwork Reduction Act of 

1995 (PRA) (44 U.S.C. 3501 et seq.) and 

its implementing regulations at 5 CFR 

part 1320. The PRA defines a collection 

of information as ‘‘the obtaining, 

causing to be obtained, soliciting, or 

requiring the disclosure to third parties 

or the public, of facts or opinions by or 

for an agency, regardless of form or 

format.’’ 44 U.S.C. 3502(3)(A). Under 

the PRA, a Federal agency cannot 

conduct or sponsor a collection of 

information unless OMB approves it, 

and the agency displays a currently 

valid OMB control number (44 U.S.C. 

3507). Also, notwithstanding any other 

provision of law, no employer shall be 

subject to penalty for failing to comply 

with a collection of information if the 


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7Some of these commenters request that OSHA 

withdraw the rulemaking to complete ‘‘its 

obligation’’ to consult with states, ignoring section 

11 of E.O. 13132 which specifies that the E.O. does 

not ‘‘create any right or benefit, substantive or 

procedural enforceable at law.’’ (64 FR 43255, 

43259). 

collection of information does not 

display a currently valid OMB control 

number (44 U.S.C. 3512). 

VII. Federalism 

OSHA reviewed this final rule in 

accordance with the Executive Order 

13132 (64 FR 43255 (Aug. 10, 1999)), 

which, among other things, is intended 

to ‘‘ensure that the principles of 

federalism established by the Framers 

guide the executive departments and 

agencies in the formulation and 

implementation of policies.’’ 

Several commenters submitted cover 

letters and attached a report from the 

Boundary Line Foundation (Boundary 

Line document) expressing a concern 

that OSHA failed to conduct 

consultation with States adequate to 

comply with Executive Order 13132 

(see, e.g., Document ID 1965; 1967; 

1968; 1973, 1975). The Boundary Line 

document also argues that OSHA’s 

rulemaking process ‘‘neglects to assess 

foreseeable impacts to State legislative 

or regulatory actions or consider 

alternatives that can only be revealed 

through the State consultation process’’ 

(see, e.g., Document ID 1965, p. 5–9; 

1975, p. 5–9; 1968, p. 5–9).7 OSHA 

disagrees. 

In fact, the Boundary Line document, 

along with several State comments that 

reference this document, set out a 

number of alternatives, including not 

making the proposed changes or 

providing a more specific set of criteria 

to be referenced by the CSHOs 

(Document ID 1965, p. 11, 15–16, 21, 30; 

1967; 1968; 1973, 1975). OSHA has 

considered and discussed those 

alternatives but did not select them for 

the reasons fully explained in the 

Summary and Explanation. 

After analyzing this action in 

accordance with Executive Order 13132, 

OSHA determined that this regulation is 

not a ‘‘policy having federalism 

implications’’ requiring consultation 

under Executive Order 13132. This final 

rule merely clarifies OSHA’s 

longstanding practice under which 

third-party representatives may 

accompany inspectors conducting 

workplace safety and health inspections 

authorized by the OSH Act. It will not 

have substantial direct effect on the 

States, on the relationship between the 

National Government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government that would affect 

the States’ ability to discharge 

traditional State governmental 

functions. 

The effect of the final 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 final rule revises 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 clarified 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 concludes that these 

clarifying revisions enhance the 

effectiveness of OSHA’s inspections and 

enforcement of occupational safety and 

health standards. Therefore, OSHA has 

determined that, within six months of 

the promulgation of a final rule, State 

Plans are required to adopt regulations 

that are identical to 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). 

Several commenters representing state 

and local governments (but not State 

Plan officials) submitted similar 

comments and included the Boundary 

Line document. The Boundary Line 

document questioned OSHA’s 

application of section 18(c)(2) (29 U.S.C. 

667(c)(2)) to State Plans’ obligations 

with respect to this rulemaking (see 

Document ID 1965, p. 10–11; 1967, p. 

10–11; 1968, p. 10–11; 1975, p. 10–11). 

(The report incorrectly cites 29 U.S.C. 

677(c)(2), but this appears to be a 

typographical error.) Section 18(c)(2) of 

the OSH Act provides that one 

condition of OSHA approval is that a 

State Plan ‘‘provides for the 

development and enforcement of safety 

and health standards . . . which 

standards (and the enforcement of 

which standards) are or will be at least 

as effective in providing safe and 

healthful employment and places of 

employment’’ (emphasis added). 

Because this rule enhances the 

effectiveness of the enforcement of 

OSHA standards, section 18(c)(2) 

applies. 

The same document also questioned 

the impact of this rulemaking on State 

Plans’ obligations to develop strategic 

plans (Document ID 1965, p. 9; 1967, p. 

9; 1968, p. 9; 1975, p. 9). OSHA requires 

State Plans to submit 5-year strategic 

plans as a condition of receiving Federal 

funding grants pursuant to section 23(g) 

of the OSH Act (29 U.S.C. 672). This is 

distinct from State Plans’ statutory 

obligations under section 18 of the OSH 

Act to maintain at least as effective 

enforcement programs and inspections. 

Although a State Plan’s 5-year strategic 

plan might reference rulemaking 

obligations, OSHA is not prescriptive 

about whether specific rulemakings 

would need to be listed in such strategic 

plans. 

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 


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Federal Register / Vol. 89, No. 63 / Monday, April 1, 2024 / Rules and Regulations 22601 

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 final rule in 

accordance with Executive Order 13175 

(65 FR 67249) and determined that it 

would not have ‘‘tribal implications’’ as 

defined in that order. The clarifications 

to 29 CFR 1903.8(c), do 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. 

XI. Environmental Impact Assessment 

OSHA reviewed the final rule in 

accordance with the requirements of the 

National Environmental Policy Act 

(NEPA) (42 U.S.C. 4321 et seq.), the 

regulations of the Council on 

Environmental Quality (40 CFR parts 

1500 through 1508), and the Department 

of Labor’s NEPA procedures (29 CFR 

part 11). The agency finds that the 

revisions included in this proposal 

would have no major negative impact 

on air, water, or soil quality, plant or 

animal life, the use of land or other 

aspects of the environment. 

XII. List of Subjects in 29 CFR Part 1903 

Occupational safety and health, 

Health, Administrative practice and 

procedures, Law enforcement. 

XIII. 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 is amending 29 CFR 

part 1903 to read as follows: 

PART 1903—INSPECTIONS, 

CITATIONS AND PROPOSED 

PENALTIES 

■ 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. Revise paragraph (c) of § 1903.8 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 

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 

accompaniment by a third party is 

reasonably necessary to the conduct of 

an effective and thorough physical 

inspection of the workplace (including 

but not limited to because of their 

relevant knowledge, skills, or 

experience with hazards or conditions 

in the workplace or similar workplaces, 

or language or communication skills). 

* * * * * 

[FR Doc. 2024–06572 Filed 3–29–24; 8:45 am] 

BILLING CODE 4510–26–P 


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