information

(b) Areas containing 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) (11) 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, on 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 con

duct, 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 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. Govern

ment 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 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) 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.

Any term not defined herein shall have the same meaning as 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) "Nonprofit agency or institution" means an agency, corporation, or association no part of the net earnings of which inures, or may lawfully inure, to the benefit of any private shareholder or individual.

(c) "Secretary" means the Secretary of Health, Education, and Welfare and any other officer or employee of the Department of Health, Education, and Welfare to whom the authority involved has been delegated.

(d) "State" means a State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, and the Trust Territory of the Pacific Islands.

(e) "Training" means job-specific skill development, the purpose of which is to provide qualified personnel to carry out the purposes of the Act.

§ 86.3 Inventions and discoveries.

Any grant award pursuant to § 86.14 or § 86.33 is subject to the regulations of the Department of Health, Education, and Welfare as set forth in 45 CFR Parts 6 and 8, as amended. Such regulations shall apply to any activity for which

grant funds are in fact used whether within the scope of the project as approved or otherwise. Appropriate measures shall be taken by the grantee and by the Secretary to assure that no contracts, assignments or other arrangements inconsistent with the grant obligation are continued or entered into and that all personnel involved in the supported activity are aware of and comply with such obligations. Laboratory notes, related technical data, and information pertaining to inventions and discoveries shall be maintained for such periods, and filed with or otherwise made available to the Secretary, or those he may designate at such times and in such manner, as he may determine necessary to carry out such Department regulations.

§ 86.4 Publications and copyrights.

Except as may otherwise be provided under the terms and conditions of the award, the grantee may copyright without prior approval any publications, films or similar materials developed or resulting from a project supported by a grant under this part, subject, however, to a royalty-free, nonexclusive, and irrevocable license or right in the Government to reproduce, translate, publish, use, disseminate, and dispose, of such materials and to authorize others to do so.

§ 86.5 Grant appeals procedure.

The informal Public Health Service procedure for resolution of post-award grant disputes set forth in subpart D of Part 50 of this title and the Department post-award grant appeals procedure in 45 CFR Part 16 are applicable to any award made pursuant to this part.

Subpart B-Occupational Safety and
Health Training Grants

§ 86.10 Nature and purpose of training

grants.

(a) Long-term training project grant. A long-term training project grant is an award of funds to an eligible institution or agency, hereinafter called the "grantee," to pay part or all of the costs of organized identifiable activities, hereinafter termed the "project," that are undertaken to establish, strengthen, or expand graduate, undergraduate, or special training, of persons in the field of occupational safety and health. Such grants may be used to support training in, for example, occupational medicine, industrial hygiene, industrial nursing

and occupational safety engineering and the training of technicians and paraprofessionals in such areas.

(b) Short-term training project grant. A short-term training project grant is an award of funds to an eligible institution or agency, hereinafter called the "grantee," to pay part or all of the costs of organized identifiable activities, hereinafter termed the "project" that are undertaken to provide intensive training programs of less than 1 year for any one or a combination of the following purposes:

(1) To provide specialized instruction for occupational safety and health professional or career personnel which will increase their competence in an area in their respective fields.

(2) To prepare or expand the capabilities of occupational safety and health professional or career personnel for leadership roles as administrators or supervisors, and

(3) To prepare or expand the teaching capabilities of occupational safety and health professionals and career personnel.

(a) Eligible applicants. Any public or nonprofit educational or training agency or institution located in a State is eligible to apply for a grant under this subpart.

(b) Projects eligible for long-term or short-term training grants. Any project found by the Secretary to be a long-term training project within the meaning of § 86.10 (a) or a short-term training project within the meaning of § 86.10(b), shall be eligible for a grant award.

§ 86.12 Application for a grant.

(a) An application for a grant under this subpart shall be submitted to the Secretary at such time and in such form and manner as the Secretary may prescribe. The application shall contain a full and adequate description of the project and of the manner in which the applicant intends to conduct the project in accordance with the requirements of this subpart, and a budget and justification of the amount of grant funds requested, and such other pertinent information as the Secretary may require.

1 Applications and instructions may be obtained from the Office of Extramural Activities, National Institute for Occupational Safety and Health, U.S. Post Office & Courthouse, Cincinnati, Ohio 45202.

(b) The application shall be executed by an individual authorized to act for the applicant and to assume for the applicant the obligations imposed by the regulations of this subpart and any additional conditions of the grant.

§ 86.13

Project requirements.

(a) An approvable application for a long-term training grant must contain each of the following, unless the Secretary determines that the applicant has established good cause for its omission.

(1) Provision of a method for development of the training curriculum and any attendant training materials and resources;

(2) Provision of a method for implementation of the needed training;

(3) Provision of an evaluation methodology, including the manner in which such methodology will be employed, to measure the achievement of the objectives of the training program; and

(4) Provision of a method by which trainees will be selected.

(b) In addition to the requirements set forth in paragraph (a) of this section, an approvable application for a shortterm training grant must contain each of the following, unless the Secretary determines that the applicant has established good cause for its omission.

(1) Provision of a methodology to assess the particular skills, or knowledge that prospective trainees need to develop;

(2) Provision of at least 18 hours of formal instruction for a period of not less than 22 days and not more than 1 academic year; and

(3) Assurances that no portion of the Federal funds will be used for (i) inservice training courses designed only for employees of a single agency, institution, or organization; (ii) correspondence courses; (iii) regular courses usually given for academic credit; or (iv) training the grantee's financial officers, program director, or the official who executed the application.

§ 86.14 Evaluation and grant award.

Within the limits of funds available for such purpose the Secretary may award grants to assist in the establishment and operation of those projects which will in his judgment best promote the purposes of section 21(a)(1) of the Act, taking into account:

(a) In the case of long-term training grants:

(1) The need for training in the area or areas of study outlined in the application;

(2) The degree to which the proposal represents a strengthening or expansion of the applicant's program in such areas; (3) The record of the applicant's effectiveness in training in these or related areas as indicated, among other things, by the placement of its graduates;

(4) The competence of the project staff in relation to the service to be provided; (5) The reasonableness of the budget in relation to the proposed project;

(6) The applicant's resources, including equipment, facilities, and funds, available for the project;

(7) The current and potential availability of students in the area of study to be offered and their prospective employability as a result of the proposed training;

(8) The extent to which the applicant expects to absorb faculty positions initiated as a result of the grant; and

(9) The degree to which the project adequately provides for the requirements set forth in § 86.13(a).

(1) The relationship of the contents of the course to the current and emergency training needs to carry out the purposes of the Act;

(2) The qualifications of the instructional staff;

(3) The speed with which the training can be put to use by the persons proposed to be trained;

(4) The reasonableness of the budget in relation to the proposed project;

(5) The success of previous offerings of this course, or related courses;

(6) Evidence of ability to recruit trainees and the estimated number to be enrolled during each course offering; and

(7) The degree to which the proposed project adequately provides for the requirements set forth in § 86.13(b).

(c) The amount of any award shall be determined by the Secretary on the basis of his estimate of the sum necessary for all or a designated portion of direct project costs plus an additional amount for indirect costs, if any, which will be calculated by the Secretary either (1) on the basis of his estimate of the