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the address of the place of employment where the substance is normally found; the specific workplace or workplaces involved, and the specific process or type of work which is the source of the substance or in which such substance is used;

(3) Specify with reasonable particularity the nature of the conditions, circumstances, or other grounds on which the request is made;

(4) State, where the requester is other than the employer:

(1) That he is an authorized representative, or an officer, of the organization representing the employees for purposes of collective bargaining; or

(ii) That he is an employee of the employer and is authorized by two or more employees employed in the workplace where the substance is normally found to represent them for purposes of the Act. Each such authorization shall be in writing and included in the request; or

(iii) That he is one of three or less employees employed in the workplace where the substance is normally found.

(5) Indicate whether the requester or those persons who have authorized the requester to represent them desire that NIOSH not reveal their names to the employer.

(c) The request shall, if the information is known to the requester:

(1) Identify the potentially toxic substance or substances involved;

(2) State the trade name, chemical name, and the manufacturer of each such substance;

(3) State whether the substance or the container of such substance has a warning label; and

(4) Specify the physical form of the substance, number of people exposed, length of exposure (hours/day), and occupations of exposed employees.

NOTE: The National Institute for Occupational Safety and Health has developed a form, entitled "Request for Health Hazard Evaluation," to assist persons in requesting evaluations under this part. Forms are available upon request from NIOSH, Hazard Evaluation Services Branch, Cincinnati, Ohio 45202, or from the NIOSH representative in any Regional Office of the Department of Health, Education, and Welfare.

§ 85.4 Acting on requests.

(a) When a request meeting the requirements of this part has been submitted in accordance therewith and designated employees of NIOSH have concluded that there is reasonable cause to believe that an investigation is warranted, a NIOSH officer will inspect the place of employment, collect samples where appropriate and perform such tests as necessary, including medical examinations of employees, to the conduct of a health hazard evaluation.

(b) If there is no reasonable cause to conclude that an investigation is warranted, the requester shall be notified in writing of such decision.

(c) Investigations shall be conducted in accordance with the requirements of this part.

§ 85.5 Authority for investigations.

(a) Employees of the National Institute for Occupational Safety and Health who have been issued the NIOSH official credentials (consisting of HSM Form 599-2 entitled "Identification Record") are authorized by the Director, NIOSH, for the purposes of section 20(a)(6) of the Act and pursuant to section 8, to enter without delay and at reasonable times any place of employment for which a request has been submitted, to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment, and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein as may be directly related to the determination whether any substance normally found in the place of employment for which a request has been submitted has potentially toxic effects in such concentrations as used or found. In connection with any such investigation, such NIOSH employees may question privately any employer, owner, operator, agent, or employee and review records required by the Act and regulations, and other related records.

(b) Areas containing information which is classified by any agency of the U.S. Government in the interest of

national security will be inspected only by NIOSH employees who have obtained the appropriate security clearance.

§ 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.

§ 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 § 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 § 85.3(b)(4)(ii) 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 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, 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.

(e) The conduct of investigations shall be such as to preclude unreasonable disruption of the operations of the employer's establishment.

§ 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.

§ 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 tnat 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 accom

pany 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 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.

§ 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 Act. § 85.11 Notification of determination to employers, affected employees and Department of Labor.

(a) A determination made pursuant to section 20(a)(6) of the Act will, as a minimum: (1) Identify and set forth, where appropriate, the concentrations of the substance(s) found in the place

of employment and the conditions of use, and (2) state whether such substance(s) has potentially toxic effects in such concentrations, as well as the basis for such judgments.

(b) Copies of the determination will be mailed to the employer and to the authorized representatives of employ

ees.

(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) which is the subject of the health hazard evaluation.

(e) Copies of all determinations will be forwarded to the Department of Labor and the appropriate State agency designated under section 18(b) of the Act. If the Secretary of Health, Education, and Welfare determines that any substance is potentially toxic at the concentrations in which it is used or found in a place of employment, and such substance is not covered by an occupational safety or health standard promulgated under section 6 of the Act, the Secretary of Health, Education, and Welfare will immediately submit such determination to the Secretary of Labor together with all pertinent criteria.

§ 85.12 Subsequent requests for health hazard evaluations.

Where a request is received for a health hazard evaluation in a place of

employment in which an evaluation under this part previously has been made, the Secretary may make a subsequent investigation if, as a result of the passage of time or additional information, he deems such a subsequent investigation consistent with the purpose of the Act.

PART 85a-OCCUPATIONAL SAFETY AND HEALTH INVESTIGATIONS OF PLACES OF EMPLOYMENT

Sec.

85a.1 Applicability. 85a.2 Definitions.

85a.3 Authority for investigations of places of employment.

85a.4 Procedures for initiating investigations of places of employment.

85a.5 Conduct of investigations of places of employment.

85a.6 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).

SOURCE: 41 FR 45002, Oct. 14, 1976, unless otherwise noted.

§ 85a.1 Applicability.

(a) Except as otherwise provided in paragraph (b) of this section, the provisions of this part are applicable to investigations of places of employment which are conducted by NIOSH pursuant to sections 20 and 8 of the Occupational Safety and Health Act of 1970.

(b) The provisions of this part do not apply to those activities covered by Part 85 of this chapter.

§ 85a.2 Definitions.

Any term defined in the Occupational Safety and Health Act of 1970 and not defined below shall have the meaning given it in the Act. As used in this part:

(a) "Act" means the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 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.

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(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.

of

(d) "Investigation" means research projects, experiments, demonstrations, studies and similar activities NIOSH which are conducted pursuant to section 20 of the 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, Education, and Welfare.

(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 Education, and Welfare Re

gional Offices, the addresses of which are specified in § 5.31 of Title 45, Code of Federal Regulations.

(i) "Place of employment" means any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by any employee of an employ

er.

§ 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, for the purpose of section 20 of the Act and this part and pursuant to section 8 of the 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, 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, Education, and Welfare (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 secu

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