Worker Walkaround Representative Designation Process, 22558-22601 [2024-06572]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[Federal Register Volume 89, Number 63 (Monday, April 1, 2024)]
[Rules and Regulations]
[Pages 22558-22601]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-06572]



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Vol. 89

Monday,

No. 63

April 1, 2024

Part IV





Department of Labor





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Occupational Safety and Health Administration





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29 CFR Part 1903





Worker Walkaround Representative Designation Process; Final Rule

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

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1903

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


Worker Walkaround Representative Designation Process

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

ACTION: Final rule.

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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: 
[email protected].
    General and technical inquiries: Scott Ketcham, OSHA Directorate of 
Construction, telephone: (202) 693-2020; email: [email protected].
    Copies of this Federal Register notice and news releases: 
Electronic copies of these documents are available at OSHA's web page 
at https://www.osha.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
II. Background
    A. The OSH Act and OSHA's Inspection Authority
    B. Regulatory History and Interpretive Guidance
    C. Litigation and Subsequent Agency Enforcement Actions
III. Legal Authority
IV. Summary and Explanation of the Rule
    A. The Need for and Benefits of Third-Party 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), inspection-
related 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 inspection-related 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 Sec.  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

[[Page 22562]]

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 Labor-Related 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 third-party 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 third-party 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).

[[Page 22563]]

    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 Third-Party 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

[[Page 22564]]

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) third-party 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 USW-represented 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' 
industry-specific 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

[[Page 22565]]

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 third-party'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 industry-standard 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 third-party 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 Spanish-
speaking 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).
---------------------------------------------------------------------------

    \1\ Karen languages are spoken in parts of Burma and Thailand.
---------------------------------------------------------------------------

    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

[[Page 22566]]

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, third-party 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 
third-party 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 
third-party 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

[[Page 22567]]

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) industry-specific concerns should 
preclude third-party 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 third-party 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 job-specific 
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 
security-related 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,

[[Page 22568]]

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 third-party 
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 non-employees 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

[[Page 22569]]

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 real-life 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 third-party 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 facility-specific 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

[[Page 22570]]

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 third-party 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

[[Page 22571]]

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 third-party 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 
third-party 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.

[[Page 22572]]

    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 third-party representatives to union 
representatives but clarifies that varying types of third parties may 
serve as employee representatives based on their knowledge, skills, or 
experience. Third-party 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

[[Page 22573]]

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

[[Page 22574]]

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 third-party 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 
third-party 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

[[Page 22575]]

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-by-
inspection 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 third-party 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

[[Page 22576]]

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

[[Page 22577]]

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/laws-regs/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

[[Page 22578]]

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 already-
existing 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

[[Page 22579]]

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, third-party 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 third-party 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 ``local-interest 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 
non-employees (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

[[Page 22580]]

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 third-party 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

[[Page 22581]]

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 inspection-related 
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 non-union 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

[[Page 22582]]

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 non-union 
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

[[Page 22583]]

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

[[Page 22584]]

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

[[Page 22585]]

prominent union organizer, noted that union organizing was unlikely to 
happen during a walkaround inspections because of the need for in-
depth, 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

[[Page 22586]]

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 Sec.  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.'').

[[Page 22587]]

    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 walking-around 
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 Sec.  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

[[Page 22588]]

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

[[Page 22589]]

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, non-exhaustive 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 third-party 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.

[[Page 22590]]

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 non-unionized 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

[[Page 22591]]

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 
third-party 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 industry-specific 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 non-employee 
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 
third-party 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

[[Page 22592]]

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 third-party 
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

[[Page 22593]]

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\
---------------------------------------------------------------------------

    \2\ Executive 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.
---------------------------------------------------------------------------

    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

[[Page 22594]]

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 x [5/60] hour x $37.77 x [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.
---------------------------------------------------------------------------

    \3\ The 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.
---------------------------------------------------------------------------

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 third-party 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

[[Page 22595]]

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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 third-party 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

[[Page 22596]]

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 third-party 
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\
---------------------------------------------------------------------------

    \5\ State 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.
---------------------------------------------------------------------------

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 third-party 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 third-party 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 per-engagement cost that stripped out unrelated 
administrative costs, the consultant would dedicate more hours to each 
engagement than would a third-party 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

[[Page 22597]]

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 third-party representatives will now 
participate in that they would not have participated in before. OSHA 
does not collect data on the frequency of third-party 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 one-time 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

[[Page 22598]]

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
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                               Revenue per      1% of revenue
          NAICS                  NAICS description         Establishments       Revenue       establishment          per        Manager per    Hours to
                                                                               ($1,000)         ($1,000)        establishment    hour wages   exceed 1%
--------------------------------------------------------------------------------------------------------------------------------------------------------
2361....................  Residential Building                     171,322    $253,139,895            $1,478           $14,776       $93.71          158
                           Construction.
2362....................  Nonresidential Building                   41,400     324,165,303             7,830            78,301        93.71          836
                           Construction.
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                8,971      83,786,185             9,340            93,397        93.71          997
                           Construction.
2379....................  Other Heavy and Civil                      4,165      14,777,633             3,548            35,481        93.71          379
                           Engineering Construction.
2381....................  Foundation, Structure, and                92,477     161,721,189             1,749            17,488        93.71          187
                           Building Exterior Contractors.
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                     69,138     137,034,126             1,982            19,820        93.71          212
                           Contractors.
311.....................  Food Manufacturing............            23,740     174,677,989             7,358            73,580        93.71          785
312.....................  Beverage and Tobacco Product               8,518      31,557,244             3,705            37,048        93.71          395
                           Manufacturing.
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                 1,131       2,775,454             2,454            24,540        93.71          262
                           Manufacturing.
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              24,189      45,426,490             1,878            18,780        93.71          200
                           Activities.
324.....................  Petroleum and Coal Products                1,117      30,652,067            27,441           274,414        93.71        2,928
                           Manufacturing.
325.....................  Chemical Manufacturing........             9,976     138,356,916            13,869           138,690        93.71        1,480
326.....................  Plastics and Rubber Products               9,574      82,161,688             8,582            85,818        93.71          916
                           Manufacturing.
327.....................  Nonmetallic Mineral Product               11,175      48,381,252             4,329            43,294        93.71          462
                           Manufacturing.
331.....................  Primary Metal Manufacturing...             3,256      48,567,821            14,916           149,164        93.71        1,592
332.....................  Fabricated Metal Product                  50,939     188,740,011             3,705            37,052        93.71          395
                           Manufacturing.
333.....................  Machinery Manufacturing.......            20,542     122,991,169             5,987            59,873        93.71          639
334.....................  Computer and Electronic                   10,603      67,937,359             6,407            64,074        93.71          684
                           Product Manufacturing.
335.....................  Electrical Equipment,                      4,626      33,346,239             7,208            72,084        93.71          769
                           Appliance, and Component
                           Manufacturing.
336.....................  Transportation Equipment                   9,295      87,082,439             9,369            93,687        93.71        1,000
                           Manufacturing.
337.....................  Furniture and Related Product             13,960      36,138,030             2,589            25,887        93.71          276
                           Manufacturing.
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                   530,341     602,083,936             1,135            11,353        93.71          121
                           Services.
622.....................  Hospitals.....................             1,712      41,733,980            24,377           243,773        93.71        2,601
623.....................  Nursing and Residential Care              56,163     113,790,097             2,026            20,261        93.71          216
                           Facilities.
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
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                               Revenue per      1% of revenue
          NAICS                  NAICS description         Establishments       Revenue       establishment          per        Manager per    Hours to
                                                                               ($1,000)         ($1,000)        establishment    hour wages   exceed 1%
--------------------------------------------------------------------------------------------------------------------------------------------------------
2361....................  Residential Building                     166,548    $142,652,292              $857            $8,565       $93.71           91
                           Construction.
2362....................  Nonresidential Building                   34,342      83,675,671             2,437            24,365        93.71          260
                           Construction.
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                6,205      13,358,821             2,153            21,529        93.71          230
                           Construction.
2379....................  Other Heavy and Civil                      3,550       4,180,174             1,178            11,775        93.71          126
                           Engineering Construction.
2381....................  Foundation, Structure, and                83,239      63,851,419               767             7,671        93.71           82
                           Building Exterior Contractors.
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                     62,284      52,959,403               850             8,503        93.71           91
                           Contractors.
311.....................  Food Manufacturing............            17,010      20,699,769             1,217            12,169        93.71          130
312.....................  Beverage and Tobacco Product               6,913       7,189,394             1,040            10,400        93.71          111
                           Manufacturing.
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

[[Page 22599]]

 
316.....................  Leather and Allied Product                   922         623,259               676             6,760        93.71           72
                           Manufacturing.
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              20,213      11,430,249               565             5,655        93.71           60
                           Activities.
324.....................  Petroleum and Coal Products                  488       2,148,587             4,403            44,028        93.71          470
                           Manufacturing.
325.....................  Chemical Manufacturing........             6,048      14,751,260             2,439            24,390        93.71          260
326.....................  Plastics and Rubber Products               5,078       8,127,328             1,600            16,005        93.71          171
                           Manufacturing.
327.....................  Nonmetallic Mineral Product                6,589       8,840,877             1,342            13,418        93.71          143
                           Manufacturing.
331.....................  Primary Metal Manufacturing...             1,806       3,595,790             1,991            19,910        93.71          212
332.....................  Fabricated Metal Product                  36,783      34,117,477               928             9,275        93.71           99
                           Manufacturing.
333.....................  Machinery Manufacturing.......            13,539      18,377,762             1,357            13,574        93.71          145
334.....................  Computer and Electronic                    7,057      10,239,147             1,451            14,509        93.71          155
                           Product Manufacturing.
335.....................  Electrical Equipment,                      3,011       4,501,315             1,495            14,950        93.71          160
                           Appliance, and Component
                           Manufacturing.
336.....................  Transportation Equipment                   5,847       9,466,353             1,619            16,190        93.71          173
                           Manufacturing.
337.....................  Furniture and Related Product             11,211       7,486,646               668             6,678        93.71           71
                           Manufacturing.
339.....................  Miscellaneous Manufacturing...            22,726      14,022,304               617             6,170        93.71           66
621.....................  Ambulatory Health Care                   446,980     289,281,532               647             6,472        93.71           69
                           Services.
622.....................  Hospitals.....................               118       1,144,688             9,701            97,007        93.71        1,035
623.....................  Nursing and Residential Care              21,683       9,296,715               429             4,288        93.71           46
                           Facilities.
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 third-party 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.
---------------------------------------------------------------------------

    \6\ As 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.
---------------------------------------------------------------------------

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

[[Page 22600]]

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.
---------------------------------------------------------------------------

    \7\ Some 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).
---------------------------------------------------------------------------

    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 OSHA-
approved State Plans to enforce occupational safety and health 
standards in a manner that is at least as effective as Federal OSHA's 
standards and enforcement program, and to provide for a right of entry 
and inspection of all workplaces subject to the Act that is at least as 
effective as that provided in section 8 (29 U.S.C. 667(c)(2)-(3)). As 
described above and in the Summary and Explanation of this preamble, 
OSHA 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

[[Page 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

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

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


0
2. Revise paragraph (c) of Sec.  1903.8 to read as follows:


Sec.  1903.8  Representatives of employers and employees.

* * * * *
    (c) The representative(s) authorized by employees may be an 
employee of the employer or a third party. When the representative(s) 
authorized by employees is not an employee of the employer, they may 
accompany the Compliance Safety and Health Officer during the 
inspection if, in the judgment of the Compliance Safety and Health 
Officer, good cause has been shown why 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