Authorizing Legislation - PHSA

[Code of Federal Regulations]
[Title 42, Volume 1]
[Revised as of October 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 42CFR85]
[Page 555-560]
TITLE 42--PUBLIC HEALTH
CHAPTER I--PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN
SERVICES
PART 85--REQUESTS FOR HEALTH HAZARD EVALUATIONS
Sec.
85.1 Applicability.
85.2 Definitions.
85.3 Procedures for requesting health hazard evaluations.
85.3-1 Contents of a request for health hazard evaluations.
85.4 Acting on requests.
85.5 Authority for investigations.
85.6 Advance notice of visits.
85.7 Conduct of investigations.
85.8 Provision of suitable space for employee interviews and
examinations; identification of employees.
85.9 Representatives of employers and employees; employee requests.
85.10 Imminent dangers.
85.11 Notification of determination to employers, affected employees,
and Department of Labor.
85.12 Subsequent requests for health hazard evaluations.
Authority: Sec. 8(g), 84 Stat. 1600; 29 U.S.C. 657(g) and sec. 508,
83 Stat. 803; 30 U.S.C. 957.
Source: 37 FR 23640, Nov. 7, 1972, unless otherwise noted.
Sec. 85.1

Applicability.

This part 85 applies to health hazard evaluations requested by any
employer or authorized representative of employees under section
20(a)(6) of the Occupational Safety and Health Act of 1970 or section
501(a)(11) of the Federal Mine Safety and Health Act of 1977.
[[Page 556]]
This part is not intended to preclude the use of other channels of
communication with the National Institute for Occupational Safety and
Health to obtain information and technical assistance concerning toxic
substances or physical agents.
[45 FR 2652, Jan. 14, 1980]
Sec. 85.2

Definitions.

Any term defined in the Occupational Safety and Health Act of 1970

or the Federal Mine Safety and Health Act of 1977 and not defined below
shall have the meaning given it in the respective Acts. As used in this
part:
OSH Act means the Occupational Safety and Health Act of 1970 (29
U.S.C. 651, et seq.).
FMSH Act means the Federal Mine Safety and Health Act of 1977 (30
U.S.C. 801, et seq.).
Authorized representative of employees means any person or
organization meeting the conditions specified in Sec. 85.3-1(e) (1),
(2), or (3).
Employee has the same meaning as stated in the OSH Act and for the
purposes of this part includes miner as defined in the FMSH Act.
Employer has the same meaning as stated in the OSH Act and for the
purposes of this part includes Operator as defined in the FMSH Act.
Health hazard evaluation means the investigation and the
determination of potentially toxic or hazardous effects of: (a) Any
substance normally used or found in any place of employment to which the
OSH Act is applicable, or (b) any substance or physical agent normally
used or found in any place of employment to which the FMSH Act is
applicable.
Investigation means a physical inspection of the place of employment
under section 8 of the OSH Act or section 103 of the FMSH Act and
includes inspection, sampling, observations, review of pertinent
records, and other measurements reasonably necessary to determine
whether any substance or physical agent found in the place of employment
has potentially toxic or hazardous effects in the concentrations or
levels used or found.
NIOSH means the National Institute for Occupational Safety and
Health, Center for Disease Control, Public Health Service, Department of
Health and Human Services.
NIOSH officer means a NIOSH employee who has been authorized by the
Director, NIOSH, to conduct investigations according to this part.
Physical agent means any condition produced by the environment and/
or work processes that can result in hazardous effects as defined in
this section. Examples of physical agents are noise, temperature,
illumination, vibration, radiation, and pressure.
Place of employment means any coal or other mine, factory, plant,
establishment, construction site, or other area, workplace, or
environment where work is performed by any employee of an employer.
Substance means any chemical or biological agent or dust which has
the potential to produce toxic effects.
Toxic effects or hazardous effects are those effects which result in
short- or long-term disease, bodily injury, affect health adversely, or
endanger human life.
[45 FR 2652, Jan. 14, 1980]
Sec. 85.3

Procedures for requesting health hazard evaluations.

(a) Requests for health hazard evaluations should be addressed to
the National Institute for Occupational Safety and Health as follows:
(1) Requests from general industry. Hazard Evaluations and Technical
Assistance Branch, Division of Surveillance, Hazard Evaluations, and
Field Studies, NIOSH, 4676 Columbia Parkway, Cincinnati, OH 45226.
(2) Requests from mining industry. Environmental Investigations
Branch, Division of Respiratory Disease Studies, NIOSH, 944 Chestnut
Ridge Road, Morgantown, WV 26505.

(b) Requests for health hazard evaluations shall be submitted in
writing and signed by either: (1) The employer in whose place of
employment the substance or physical agent is normally found, or (2) an
authorized representative of employees (see Sec. 85.3-1(e)) in the place
of employment where the substance or physical agent is normally found.
[45 FR 2653, Jan. 14, 1980]
[[Page 557]]
Sec. 85.3-1

Contents of a request for health hazard evaluation.

Each request for health hazard evaluation shall contain:
(a) The requester's name, address, and telephone number, if any.
(b) The name and address of the place of employment where the
substance or physical agent is normally found.
(c) The specific process or type of work which is the source of the
substance or physical agent, or in which the substance or physical agent
is used.
(d) Details of the conditions or circumstances which prompted the
request.
(e) A statement, if the requester is not the employer, that the
requester is:
(1) An authorized representative or an officer of the organization
representing the employees for purposes of collective bargaining; or
(2) An employee of the employer and is authorized by two or more
employees employed in the same place of employment to represent them for
purposes of these Acts (each such authorization shall be in writing and
a copy submitted with the request for health hazard evaluation); or
(3) One of three or less employees employed in the place of
employment where the substance or physical agent is normally found.
(f) A statement indicating whether or not the name(s) of the
requester or those persons who have authorized the requester to
represent them may be revealed to the employer by NIOSH.
(g) The following supplementary information if known to the
requester:
(1) Identity of each substance or physical agent involved;
(2) The trade name, chemical name, and manufacturer of each
substance involved;
(3) Whether the substance or its container or the source of the
physical agent has a warning label; and
(4) The physical form of the substance or physical agent, number of
people exposed, length of exposure (hours per day), and occupations of
exposed employees.
Note: NIOSH has developed two forms entitled ``Request for Health
Hazard Evaluation'' and ``Request for Mining Health Hazard Evaluation''
to assist persons in requesting evaluations. The forms are available
upon request from the offices listed in Sec. 85.3(a) (1) and (2) or from
the Regional Consultant for Occupational Safety and Health in any
Regional Office of the Department of Health and Human Services.
[45 FR 2653, Jan. 14, 1980]
Sec. 85.4

Acting on requests.

(a) Upon receipt of a request for health hazard evaluation submitted

under this part, NIOSH will determine whether or not there is reasonable
cause to justify conducting an investigation.
(b) If NIOSH determines that an investigation is justified, a NIOSH
officer will inspect the place of employment, collect samples where
appropriate, and perform tests necessary to the conduct of a health
hazard evaluation, including medical examinations of employees.
(c) If NIOSH determines that an investigation is not justified, the
requester will be notified in writing of the decision.
[45 FR 2653, Jan. 14, 1980]
Sec. 85.5

Authority for investigations.

(a) NIOSH officers who have been issued official NIOSH credentials
(Form No. CDC/NIOSH 2.93) are authorized by the Director, NIOSH, under
sections 20(a) (6) and 8 of the OSH Act and sections 501(a)(11) and 103
of the FMSH Act: To enter without delay any place of employment for the
purpose of conducting investigations of all pertinent processes,
conditions, structures, machines, apparatus, devices, equipment,
records, and materials within the place of employment; and to conduct
medical examinations, anthropometric measurements, and functional tests
of employees within the place of employment as may be directly related
to the specific health hazard evaluation being conducted. Investigations
will be conducted in a reasonable manner, during regular working hours
or at other reasonable times and within reasonable limits. In connection
with any investigation, the NIOSH officers may question privately any
employer, owner, operator, agent, or employee from the place of
employment; and review, abstract, and duplicate records required by the
Acts and regulations and any other related records.
[[Page 558]]
(b) Areas under investigation which contain information classified
by any agency of the United States Government in the interest of
national security will be investigated only by NIOSH officers who have
obtained the proper security clearance and authorization.
[45 FR 2653, Jan. 14, 1980]
Sec. 85.6

Advance notice of visits.

(a) Advance notice of visits to the place of employment may be given
to expedite a thorough and effective investigation. Advance notice will
not be given when, in the judgment of the NIOSH officer, giving such
notice would adversely affect the validity and effectiveness of the
investigation.
(b) Where a request in accordance with this part has been made by an
authorized representative of employees, advance notice in accordance
with paragraph (a) of this section will be given by NIOSH to the
requester, the representative of the employees for purposes of
collective bargaining if such representative is other than the
requester, and to the employer.
(c) Where a request in accordance with this part has been made by
any employer, advance notice will be given by NIOSH to the employer.
Upon the request of the employer, NIOSH will inform the authorized
representative of employees of the visit: Provided, The employer

furnishes NIOSH in writing with the identity of such representative and
with such information as is necessary to enable NIOSH promptly to inform
such representative of the visit.
Sec. 85.7

Conduct of investigations.

(a) Prior to beginning an investigation, NIOSH officers shall
present their credentials to the owner, operator, or agent in charge at
the place of employment, explain the nature, purpose, and scope of the
investigation and the records specified in Sec. 85.5 which they wish to
review. Where the investigation is the result of a request submitted by
an authorized representative of employees, a copy of the request shall
be provided to the employer, except where the requester or any person
authorizing the requester pursuant to Sec. 85.3-1(e)(2) has indicated
that NIOSH not reveal his name to the employer, in which case a summary
of the basis for the request shall be provided to the employer.
(b) At the commencement of an investigation, the employer should
precisely identify information which can be obtained in the workplace or
workplaces to be inspected as trade secrets. If the NIOSH officer has no
clear reason to question such identification, such information shall not
be disclosed except in accordance with the provisions of section
20(a)(6) and section 15 of the OSH Act or section 501(a)(11) of the FMSH
Act. However, if NIOSH at any time questions such identification by an
employer, not less than 15 days' notice to an employer shall be given of
the intention to remove the trade secret designation from such
information. The employer may within that period submit a request to the
Director, NIOSH, to reconsider this intention and may provide additional
information in support of the trade secret designation. The Director,
NIOSH, shall notify the employer in writing of the decision which will
become effective no sooner than 15 days after the date of such notice.
(c) NIOSH officers are authorized to collect environmental samples
and samples of substances or measurements of physical agents (including
measurement of employee exposure by the attachment of personal sampling
devices to employees with their consent), to take or obtain photographs
related to the purpose of the investigation, employ other reasonable
investigative techniques, including medical examinations of employees
with the consent of such employees, and to question privately any
employer, owner, operator, agent, or employee. The employer shall have
the opportunity to review photographs taken or obtained for the purpose
of identifying those which contain or might reveal a trade secret.
(d) NIOSH officers shall comply with all safety and health rules and
practices at the place of employment being investigated, and they shall
provide and use appropriate protective clothing and equipment. In
situations requiring specialized or unique types of protective
equipment, such equipment shall be furnished by the employer.
[[Page 559]]
(e) The conduct of investigations shall be such as to preclude
unreasonable disruption of the operations of the employer's
establishment.
[37 FR 23640, Nov. 7, 1972, as amended at 45 FR 2653, Jan. 14, 1980; 49
FR 4739, Feb. 8, 1984]
Sec. 85.8

Provision of suitable space for employee interviews and

examinations; identification of employees.
An employer shall, in request of the NIOSH officer, provide suitable
space, if such space is reasonably available, to NIOSH to conduct
private interviews with, and examinations of, employees. NIOSH officers
shall consult with the employer as to the time and place of the medical
examination and shall schedule such examinations so as to avoid undue
disruption of the operations of the employer's establishment. NIOSH
shall conduct, and assume the medical costs of, examinations conducted
under this part.
Sec. 85.9

Representatives of employers and employees; employee
requests.

(a) NIOSH officers shall be in charge of investigations. Where the
request for a health hazard evaluation has been made by an authorized
representative of employees, a representative of the employer and a
representative authorized by his employees who is an employee of the
employer shall be given an opportunity to accompany the NIOSH officer
during the initial physical inspection of any workplace for the purpose
of aiding the investigation by identifying the suspected hazard. The
NIOSH officer may permit additional employer representatives and such
additional representatives authorized by employees to accompany him
where he determines that such additional representatives will further
aid the investigation. However, if in the judgment of the NIOSH officer,
good cause has been shown why accompaniment by a third party who is not
an employee of the employer is reasonably necessary to the conduct of an
effective and thorough investigation of the workplace, such third party
may accompany the NIOSH officer during the inspection: Provided,
however, That access by such persons to areas described in paragraph (d)
of this section shall be in accordance with the requirements of such
provision, and access to areas described in paragraph (e) of this
section shall be with the consent of the employer. A different employer
and employee representative may accompany the officer during each
different phase of an inspection if this will not interfere with the
conduct of the investigation.
(b) NIOSH officers are authorized to resolve all disputes as to who
is the representative authorized by the employer and employees for the
purpose of this section. If there is no authorized representative of
employees, or if the NIOSH officer is unable to determine with
reasonable certainty who is such representative, he shall consult with a
reasonable number of employees concerning matters directly related to
the health hazard evaluation.
(c) NIOSH officers are authorized to deny the right of accompaniment
under this section to any person whose conduct interferes with a fair
and orderly physical inspection.
(d) With regard to information classified by an agency of the U.S.
Government in the interest of national security, only persons authorized
to have access to such information may accompany an officer in areas
containing such information.
(e) Upon request of an employer, any representative authorized under
this Sec. 85.9 by employees in any area containing trade secrets shall
be an employee in that area or an employee authorized by the employer to
enter that area.
Sec. 85.10

Imminent dangers.

Whenever, during the course of, or as a result of, an investigation
under this part, the NIOSH officer believes that there is a reasonable
basis for an allegation of an imminent danger, NIOSH will immediately
advise the employer and those employees who appear to be in immediate
danger of such allegation and will inform appropriate representatives of
the Department of Labor or the State agency designated under section
18(b) of the OSH Act.
[37 FR 23640, Nov. 7, 1972, as amended at 45 FR 2653, Jan. 14, 1980]
[[Page 560]]
Sec. 85.11 Notification of determination to employers, affected
employees and Department of Labor.
(a) Upon conclusion of an investigation, NIOSH will make a
determination concerning the potentially toxic or hazardous effects of
each substance or physical agent investigated as a result of the request
for health hazard evaluation. At a minimum, the determination will: (1)
Identify each substance or physical agent involved and describe, where
appropriate, the concentrations or levels of the substance or physical
agent found in the place of employment and the conditions of use, and
(2) state whether each substance or physical agent has potentially toxic
or hazardous effects in the concentrations or levels found, as well as
the basis for the judgments.
(b) Copies of the determination will be mailed to the employer and
to the authorized representatives of employees.
(c) Except as hereinafter provided, the employer shall post a copy
of the determination for a period of 30 calendar days at or near the
workplace(s) of affected employees. The employer shall take steps to
insure that the posted determinations are not altered, defaced, or
covered by other material during such period. The employer will not be
required to post the determination if the employer requests that copies
of the determination be mailed to affected employees and furnishes NIOSH
with a list of the names and mailing addresses of the employees employed
in the workplace(s) designated by the NIOSH Officer. In the latter
event, NIOSH will mail such copies to affected employees at the mailing
addresses provided by the employer.
(d) For purposes of this section, the term ``affected employees''
means those employees determined by NIOSH to be exposed to the
substance(s) or physical agent(s) which is the subject of the health
hazard evaluation.
(e) Copies of determinations made under the OSH Act will be
forwarded to the Department of Labor and the appropriate State agency
designated under section 18(b) of the OSH Act. Copies of determinations
made under the FMSH Act will be forwarded to the Mine Safety and Health
Administration of the Department of Labor; the Bureau of Mines,
Department of the Interior; and the State agency which, in the judgment
of NIOSH, would benefit the most from the information. If NIOSH
determines that any substance or physical agent has potentially toxic or
hazardous effects at the concentrations or levels at which it is used or
found in a place of employment, and the substance or physical agent is
not covered by a safety or health standard established under section 6
of the OSH Act or section 101 of the FMSH Act, NIOSH will immediately
submit the determination to the Secretary of Labor, together with all
pertinent criteria.

[37 FR 23640, Nov. 7, 1972, as amended at 45 FR 2653, Jan. 14, 1980]
Sec. 85.12

Subsequent requests for health hazard evaluations.

If a request is received for a health hazard evaluation in a place
of employment in which an evaluation under this part was made
previously, NIOSH may make another investigation if, as a result of the
passage of time or additional information, another investigation would
be consistent with the purposes of the Acts.
[45 FR 2654, Jan. 14, 1980]

WAIS Document Retrieval[Code of Federal Regulations]
[Title 42, Volume 1]
[Revised as of October 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 42CFR85]
[Page 560-565]
TITLE 42--PUBLIC HEALTH
CHAPTER I--PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN
SERVICES
PART 85a--OCCUPATIONAL SAFETY AND HEALTH INVESTIGATIONS OF PLACES OF EMPLOYMENT
Sec.
85a.1
85a.2
85a.3
85a.4
85a.5
85a.6

Applicability.
Definitions.
Authority for investigations of places of employment.
Procedures for initiating investigations of places of employment.
Conduct of investigations of places of employment.
Provision of suitable space for employee interviews and
examinations.
85a.7 Imminent dangers.
85a.8 Reporting of results of investigations of places of employment.
Authority: Sec. 8(g), 84 Stat. 1600; 29 U.S.C. 657(g) and sec. 508,
83 Stat. 803; 30 U.S.C. 957.
[[Page 561]]
Sec. 85a.1

Applicability.

(a) Except as otherwise provided in paragraph (b) of this section,
the provisions of this part apply to investigations of places of
employment which are conducted by NIOSH under sections 20 and 8 of the
Occupational Safety and Health Act of 1970 and sections 501 and 103 of
the Federal Mine Safety and Health Act of 1977.
(b) The provisions of this part do not apply to those activities
covered by part 85 of this chapter.
[41 FR 45002, Oct. 14, 1976, as amended at 45 FR 2654, Jan. 14, 1980]
Sec. 85a.2

Definitions.

Any term defined in the Occupational Safety and Health Act of 1970
or the Federal Mine Safety and Health Act of 1977 and not defined below
shall have the meaning given it in the Acts. As used in this part:
(a) OSH Act means the Occupational Safety and Health Act of 1970 (29
U.S.C. 651 et seq.) and FMSH Act means the Federal Mine Safety and
Health Act of 1977 (30 U.S.C. 801 et seq.).
(b) Assistant Regional Director means any one of the ten
Occupational Safety and Health Administration Assistant Regional
Directors for Occupational Safety and Health.
(c) Informed consent means the knowing consent of an individual or
his legally authorized representative, so situated as to be able to
exercise free power of choice without undue inducement or any element of

force, fraud, deceit, duress, or other form of constraint or coercion.
The basic elements of information necessary to such consent include:
(1) A fair explanation of the procedures to be followed, and their
purposes, including identification of any procedures which are
experimental;
(2) A description of any attendant discomforts and risks reasonably
to be expected;
(3) A description of any benefits reasonably to be expected;
(4) A disclosure of any appropriate alternative procedures that
might be advantageous for the subject;
(5) An offer to answer any inquiries concerning the procedures; and
(6) An instruction that the person is free to withdraw his consent
and to discontinue participation in the investigation any time without
prejudice to the subject.
(d) Investigation means research projects, experiments,
demonstrations, studies, and similar activities of NIOSH which are
conducted under section 20 of the OSH Act and section 501 of the FMSH
Act.
(e) Legally authorized representative means an individual or
judicial or other body authorized under applicable law to consent on
behalf of a prospective subject to such subject's participation in the
particular activity or procedure.
(f) NIOSH means the National Institute for Occupational Safety and
Health of the Center for Disease Control, Public Health Service,
Department of Health and Human Services.
(g) NIOSH authorized representative means a person authorized by
NIOSH to conduct investigations of places of employment, including any
person that is fulfilling a contract agreement with NIOSH or is serving
as an expert or consultant to NIOSH pursuant to the Act.
(h) NIOSH Regional Office means any one of the ten Department of
Health and Human Services Regional Offices, the addresses of which are
specified in Sec. 5.31 of title 45, Code of Federal Regulations.
(i) Place of employment means any coal or other mine, factory,
plant, establishment, construction site, or other area, workplace or
environment where work is performed by any employee of an employer.
(j) MSHA District Office means any one of the Mine Safety and Health
Administration's District Offices.
(k) BOM means the Bureau of Mines, Department of the Interior.
(l) Employee has the same meaning as stated in the OSH Act and for
the purposes of this part includes miner as defined in the FMSH Act.
(m) Employer has the same meaning as stated in the OSH Act and for
the purposes of this part includes operator as defined in the FMSH ACT.
[41 FR 45002, Oct. 14, 1976, as amended at 45 FR 2654, Jan. 14, 1980]
[[Page 562]]
Sec. 85a.3

Authority for investigations of places of employment.

(a) NIOSH authorized representatives who have been issued official
NIOSH credentials are authorized by the Director, NIOSH, under sections
20 and 8 of the OSH Act, sections 501 and 103 of the FMSH Act, and this
part. To enter without delay any place of employment for the purpose of
conducting investigations of all pertinent processes, conditions,
structures, machines, apparatus, devices, equipment, and materials
within the place of employment; and to conduct medical examinations,
anthropometric measurements and functional tests of employees within the

place of employment as may be directly related to the specific
investigation being conducted. Such investigations will be conducted in
a reasonable manner, during regular working hours or at other reasonable
times and within reasonable limits. In connection with any
investigations, such NIOSH authorized representatives may question
privately any employer, owner, operator, agent, or employee from the
place of employment; and review, abstract, or duplicate employment
records, medical records, records required by the Act and regulations,
and other related records. In those instances where systems of records
subject to review, abstraction or duplication are of a confidential
nature, such as medical records, and are abstracted or duplicated, NIOSH
will maintain such systems in accordance with the Privacy Act of 1974 (5
U.S.C. 552a) and the implementing regulation of the Department of Health
and Human Services (45 CFR part 5b).
(b) Areas under investigation which contain information classified
by any agency of the United States Government in the interest of
national security will be investigated only by NIOSH authorized
representatives who have obtained the appropriate security clearance and
authorization.
[41 FR 45002, Oct. 14, 1976, as amended at 45 FR 2654, Jan. 14, 1980]
Sec. 85a.4 Procedures for initiating investigations of places of
employment.
(a) Except as otherwise provided in paragraph (b) of this section,
NIOSH authorized representatives will contact an official representative
of the place of employment prior to any site visits and will provide the
details of why an investigation of the place of employment is being
conducted. Prior to the initiation of a site visit of a place of
employment, representatives of the following organizations will be
advised of the site visit and the reason for its conduct:
(1) The appropriate State agency designated under section 18(b) of
the OSH Act, or if no State agency has been designated under the OSH Act
and in the case of the FMSH Act, the State agency which, in the judgment
of NIOSH, would benefit the most from the investigation's findings;
(2) If there is a local union at the place of employment, the local
president, business manager or other appropriate individual;
(3) The appropriate Assistant Regional Director, when investigations
are conducted under the OSH Act;
(4) The appropriate MSHA District Office; the Director, BOM, and the
Assistant Director for Mining, BOM, when investigations are conducted
under the FMSH Act.
(b) Advance notice of site visits will not be given to the place of
employment or local union at the place of employment when, in the
judgment of the NIOSH authorized representatives, giving such notice
would adversely affect the validity and effectiveness of an
investigation. Those individuals and organizations specified in
Sec. 85a.4(a)(1), (a)(3) and (a)(4) will be notified prior to the
initiation of such a site visit. After the site visit has been
initiated, and, as soon as possible thereafter, the NIOSH authorized
representatives will contact those individuals specified in
Sec. 85a.4(a)(2) concerning the nature and details of the site visit.
(c) In those instances where site visits are not necessary to the
conduct of an investigation, the NIOSH authorized representatives will
contact an official representative of the place of employment either
verbally or through a written communication and provide the details of

why an investigation of the place of employment is being conducted. If
appropriate, the NIOSH authorized representatives will contact
[[Page 563]]
those individuals stipulated in paragraphs (a)(1), (a)(2), (a)(3), and
(a)(4) of this section about the nature and details of the
investigation.
[41 FR 45002, Oct. 14, 1976, as amended at 45 FR 2654, Jan. 14, 1980]
Sec. 85a.5

Conduct of investigations of places of employment.

(a)(1) Prior to beginning a site visit, NIOSH authorized
representatives will present their credentials to the employer, owner,
operator or agent in charge at the place of employment, explain the
nature, purpose and scope of the investigation and the records specified
in Sec. 85a.3 which they wish to review, abstract or duplicate.
(2) In those instances where site visits are not necessary to the
conduct of an investigation and the initial contact is made verbally,
NIOSH authorized representatives will, at the request of the employer,
owner, operator or agent in charge at the place of employment, provide a
written explanation of the nature, purpose and scope of the
investigation and the records specified in Sec. 85a.3 which they wish to
review, abstract or duplicate.
(b)(1) At the commencement of an investigation, the employer, owner,
operator or agent in charge at the place of employment shall precisely
identify that information which is trade secret and might be seen or
obtained by the NIOSH authorized representatives during the
investigation. If the NIOSH authorized representatives have no clear
reason to question such identification, such information will not be
disclosed by NIOSH in accordance with the provisions of section 15 of
the OSH Act. Generally, NIOSH will not question trade secret
designations; however, if NIOSH at any time does question such
identification, not less than 15 days' notice to the employer, owner,
operator or agent will be given of the intention to remove the trade
secret designation from such information. The employer, owner, operator
or agent may within that period submit a request to the Director, NIOSH,
to reconsider this intention and may provide additional information in
support of the trade secret designation. The Director, NIOSH, will
notify the employer, owner, operator or agent in writing of the decision
which will become effective no sooner than 15 days after the date of
such notice.
(2) In those instances where the NIOSH authorized representative is
a person fulfilling a contact agreement with NIOSH or is serving as an
expert or consultant to NIOSH pursuant to the Act, the employer, owner,
operator or agent in charge at the place of employment may, after
advising the NIOSH contractor or consultant in writing, elect to
withhold information deemed to be a trade secret from such a NIOSH
authorized representative or prohibit entry into the area of the place
of employment where such entry will reveal trade secrets. In those
instances, where the subject information is needed or access to the area
of the place of employment is necessary, in the judgment of NIOSH, to
fulfill the goals of the investigation, NIOSH regular employees will
then obtain the information or enter the subject area of the place of
employment.
(c)(1) NIOSH authorized representatives will be in charge of site

visits conducted pursuant to this part.
(2) Where there is a request by the representative of the State
agency and/or employees, who were notified pursuant to Sec. 85a.4(a)(1)
or Sec. 85a.4(a)(2) to accompany the NIOSH authorized representatives
during the site visit of the place of employment, the NIOSH authorized
representatives will allow this request if they determine that this will
aid the investigation; or where, in the judgment of the NIOSH authorized
representatives, good cause has been shown why accompaniment by a third
party who is not an employee of the employer is reasonably necessary to
the conduct of an effective and thorough site visit, they may permit
such third party to accompany them during the site visit: Provided
however, That access by such person(s) to areas described in
Sec. 85a.5(c)(4) shall be in accordance with the requirements of such
provision and access to areas containing trade secrets shall be with the
consent of the employer, owner, operator or agent in charge at the place
of employment.
(3) NIOSH authorized representatives are authorized to deny the
right of accompaniment under this paragraph to
[[Page 564]]
any person whose conduct in their judgment interferes with a fair and
orderly site visit. In all instances, a representative of the employer
shall be permitted to accompany the NIOSH authorized representatives
during the site visit of the place of employment.
(4) With regard to information classified by an agency of the United
States Government in the interest of national security, only persons
authorized to have access to such information may accompany NIOSH
authorized representatives in areas containing such information.
(d)(1) NIOSH authorized representatives are authorized: To collect
environmental samples and samples of substances; to measure
environmental conditions and employee exposures (including measurement
of employee exposure by the attachment of personal sampling devices to
employees with their consent); to take or obtain photographs, motion
pictures or videotapes related to the purpose of the investigation; to
employ other reasonable investigative techniques, including medical
examinations, anthropometric measurements and standardized and
experimental functional tests of employees with the informed consent of
such employees; to review, abstract, and duplicate such personnel
records as are pertinent to mortality, morbidity, injury, safety, and
other similar studies; and to question and interview privately any
employer, owner, operator, agency, or employee from the place of
employment. The employer, owner, operator, or agency shall have the
opportunity to review photographs, motion pictures, and videotapes taken
or obtained for the purpose of identifying those which contain or might
reveal a trade secret.
(2) Prior to the conduct of medical examinations, anthropometric
measurements or functional tests of any employees, the NIOSH authorized
representatives will obtain approval of the procedures to be utilized
from the NIOSH Human Subjects Review Board and no employee examination,
measurement or test will be undertaken without the informed consent of
such employee.
(e) NIOSH authorized representatives will comply with all safety and
health rules and practices at the place of employment and all NIOSH,
Occupational Safety and Health Administration, and Mine Safety and
Health Administration regulations and policies during a site visit and
will provide and use appropriate protective clothing and equipment. In

situations requiring specialized or unique types of protective
equipment, such equipment shall be furnished by the employer, owner,
operator or agent in charge at the place of employment.
(f) The conduct of site visits will be such as to preclude
unreasonable disruption of the operations of the place of employment.
[41 FR 45002, Oct. 14, 1976, as amended at 45 FR 2654, Jan. 14, 1980; 49
FR 4739, Feb. 8, 1984]
Sec. 85a.6 Provision of suitable space for employee interviews and
examinations.
An employer, owner, operator or agent in charge at the place of
employment shall, on request of the NIOSH authorized representatives,
provide suitable space at the place of employment, if such space is
reasonably available, to NIOSH to conduct private interviews with, and
medical examinations, anthropometric measurements and functional tests
of employees. NIOSH authorized representatives will consult with the
employer, owner, operator or agent as to the time and place of the
private interviews, medical examination, anthropometric measurements and
functional tests and will schedule same so as to avoid undue disruption
of work at the place of employment. NIOSH will conduct the medical
interviews, measurements, examinations and tests specified under this
part at its own expense.
[41 FR 45002, Oct. 14, 1976]
Sec. 85a.7

Imminent dangers.

Whenever, during the course of, or as a result of, an investigation
under this part, the NIOSH authorized representatives believe there is a
reasonable basis for an allegation of an imminent danger, NIOSH will
immediately advise the employer, owner, operator or agent in charge at
the place of employment and those employees who appear to be in
immediate danger of such allegation
[[Page 565]]
and will inform the agencies identified in Sec. 85a.4(a)(1), (a)(3), and
(a)(4).
[41 FR 45002, Oct. 16, 1976, as amended at 45 FR 2654, Jan. 14, 1980]
Sec. 85a.8 Reporting of results of investigations of places of
employment.
(a)(1) Specific reports of investigations of each place of
employment under this part, with identification of the place of
employment, will be made available by NIOSH to the employer, owner,
operator or agent in charge at the place of employment, with copies to
the appropriate officials and Agencies notified pursuant to
Sec. 85a.4(a). Prior to release of such reports, a preliminary report
will be sent by NIOSH to the employer, owner, operator or agent for
review for trade secret information and technical inaccuracies that may
inadvertently be presented in the report. If requested in writing, the
data used to compile the reports will be made available by NIOSH to the
employer, owner, operator or agent in charge at the place of employment,

except that data will not be released in a form that is individually
identifiable.
(2) All specific reports of investigations of each place of
employment under this part will be available to the public from the
NIOSH Regional Consultant for Occupational Safety and Health in the
appropriate NIOSH Regional Office.
(3) In certain instances, specific reports of investigations of each
place of employment will not be prepared. In such instances, a closing
conference at the place of employment will be conducted by the NIOSH
authorized representatives and those individuals participating in the
site visit to discuss the findings of the site visit and appropriate
recommendations.
(b)(1) Any specific findings of individual employee medical
examinations, anthropometric measurements and functional tests will be
released by NIOSH authorized representatives to the company physician,
private physician, or other person only pursuant to the written
authorization of the employee; otherwise, the specific findings and
other personal records concerning individuals will be maintained in
accordance with 45 CFR part 5b and section 3 of the Privacy Act of 1974
(5 U.S.C. 552a). Notice of all NIOSH systems of records as defined in 45
CFR 5b.1(n) as a result of the investigations of places of employment
pursuant to this part will be published in the Federal Register under
Notices of Systems of Records for the Department of Health and Human
Services.
(2) In cases where an employee shows positive significant medical
findings, the employee and the physician(s) designated by the employee
under Sec. 85a.8(b)(1) will be immediately notified by NIOSH.
(3) A summary of the findings of the examinations for each employee
will be sent by NIOSH to the individual.
(c) The findings of a total investigation generally will be
disseminated as part of NIOSH criteria documents, NIOSH technical
reports, NIOSH information packets, scientific journals, presentations
at technical meetings, or in other similar manners. These findings of a
total investigation will be presented in a manner which does not
identify any specific place of employment; however, it should be noted
that the specific reports of investigations of each place of employment
under this part are subject to mandatory disclosure, upon request, under
the provisions of the Freedom of Information Act (5 U.S.C. 552).
[41 FR 45002, Oct. 14, 1976]