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]

$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]

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

Sec.

85a.1 Applicability.

85a.2 Definitions.

85a.3 Authority for investigatiężs of employment.

85a.4 Procedures for initiatin

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

85a.6 Provision of suitable spe ployee interviews and examir 858.7 Imminent dangers. 85a.8 Reporting of results of in of places of employment. AUTHORITY: Sec. 8(g), 84 Sti U.S.C. 657(g) and sec. 508, 83 £3 U.S.C. 957.

§ 85a.1 Applicability.

(a) Except as otherwise pl paragraph (b) of this section, sions of this part apply to tions of places of employme are conducted by NIOSH unde 20 and 8 of the Occupational S Health Act of 1970 and section 103 of the Federal Mine Sa Health Act of 1977.

(b) The provisions of this pa apply to those activities co part 85 of this chapter.

[41 FR 45002, Oct. 14, 1976, as amer FR 2654, Jan. 14, 1980]

§ 85a.2 Definitions.

Any term defined in the Occuja Safety and Health Act of 1970Federal Mine Safety and Healt 1977 and not defined below sha the meaning given it in the A used in this part:

(a) OSH Act means the Occup Safety and Health Act of 1970 (2) 651 et seq.) and FMSH Act me Federal Mine Safety and Health 1977 (30 U.S.C. 801 et seq.).

(b) Assistant Regional Director any one of the ten Occupational and Health Administration As Regional Directors for Occup Safety and Health.

(c) Informed consent means the ing consent of an individual or 1 gally authorized representative, uated as to be able to exercise power of choice without undue in ment or any element of force, deceit, duress, or other form of straint or coercion. The basic elen of information necessary to such

sent include:

(1) A fair explanation of the pr dures to be followed, and their

ading identification of any which are experimental; cription of any attendant and risks reasonably to be

ription of any benefits reato be expected;

closure of any appropriate alprocedures that might be adus for the subject;

ffer to answer any inquiries ing the procedures; and

instruction that the person is thdraw his consent and to disparticipation in the invesmy time without prejudice to

estigation means research experiments, demonstrations, and similar activities of which are conducted under secof the OSH Act and section 501 FMSH Act.

gally authorized representative an individual or judicial or body authorized under applicable consent on behalf of a prospecject to such subject's participathe particular activity or proce

MOSH means the National InstiOccupational Safety and the Center for Disease ConPic Health Service, Departalth and Human Services. VW authorized representative person authorized by NIOSH ct investigations of places of yment, including any person that ling a contract agreement with or is serving as an expert or tant to NIOSH pursuant to the

NIOSH Regional Office means any the ten Department of Health Human Services Regional Offices, dresses of which are specified in title 45, Code of Federal Regu

Place of employment means any or other mine, factory, plant, esment, construction site, or area, workplace or environment the work is performed by any em

gee of an employer.

MSHA District Office means any of the Mine Safety and Health Adistration's District Offices.

(k) BOM means the Bureau of Mines, Department of the Interior.

(1) 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]

$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 Govern

ment 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]

§85a.4 Procedures for initiating inves

tigations 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 §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

§85a.4(a)(2) concerning the nati details of the site visit.

(c) In those instances where s its are not necessary to the con an investigation, the NIOSH aut representatives will contact an representative of the place of e ment either verbally or through ten communication and provide tails of why an investigation place of employment is bein ducted. If appropriate, the NIO thorized representatives will those individuals stipulated in graphs (a)(1), (a)(2), (a)(3), and ( this section about the nature a tails of the investigation.

[41 FR 45002, Oct. 14, 1976, as amende FR 2654, Jan. 14, 1980]

§ 85a.5 Conduct of investigatic places of employment.

(a)(1) Prior to beginning a site NIOSH authorized representative present their credentials to th ployer, owner, operator or age charge at the place of employmer plain the nature, purpose and scc the investigation and the records fied in §85a.3 which they wish t view, abstract or duplicate.

(2) In those instances where sit its are not necessary to the condr an investigation and the initial cor is made verbally, NIOSH autho representatives will, at the reque the employer, owner, operator or s in charge at the place of employn provide a written explanation of nature, purpose and scope of the it tigation and the records specifie §85a.3 which they wish to review stract or duplicate.

(b)(1) At the commencement of a vestigation, the employer, owner, o ator or agent in charge at the plac employment shall precisely iden that information which is trade se and might be seen or obtained by NIOSH authorized representatives ing the investigation. If the NIOSH thorized representatives have no cl reason to question such identificati such information will not be disclo by NIOSH in accordance with the p visions of section 15 of the OSH A Generally, NIOSH will not quest trade secret designations; however. NIOSH at any time does question su

fation, not less than 15 days' to the employer, owner, operagent will be given of the intenremove the trade secret desfrom such information. The er, owner, operator or agent ithin that period submit a reto the Director, NIOSH, to reconthis intention and may provide ional information in support of trade secret designation. The DiNIOSH, will notify the emowner, operator or agent in of the decision which will beeffective no sooner than 15 days the date of such notice.

In those instances where the authorized representative is a fulfilling a contact agreement NIOSH or is serving as an expert Consultant to NIOSH pursuant to Act, the employer, owner, operator ent in charge at the place of ement may, after advising the SH contractor or consultant in ing, elect to withhold information med to be a trade secret from such TOSH authorized representative or it entry into the area of the of employment where such entry reveal trade secrets. In those ines, where the subject information eded or access to the area of the de of employment is necessary, in ment of NIOSH, to fulfill the the investigation, NIOSH reguyees will then obtain the intion or enter the subject area of the place of employment.

NIOSH authorized representares will be in charge of site visits aducted pursuant to this part.

Where there is a request by the resentative of the State agency and/ mployees, who were notified pursuto §85a.4(a)(1) or §85a.4(a)(2) to acpany the NIOSH authorized repentatives during the site visit of the e of employment, the NIOSH aurized representatives will allow this est if they determine that this will the investigation; or where, in the ment of the NIOSH authorized repsentatives, good cause has been wn why accompaniment by a third y who is not an employee of the ployer is reasonably necessary to @conduct of an effective and thorgh 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 §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 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]

§ 85a.7 Imminent dangers.

Whenever, during the cour a result of, an investigation part, the NIOSH authorized ⚫ tives believe there is a reaso for an allegation of an imm ger, NIOSH will immediat the employer, owner, operat in charge at the place of er and those employees who ap in immediate danger of suchand will inform the agencies in §85a.4(a)(1), (a)(3), and (a)(4 [41 FR 45002, Oct. 16, 1976, as am FR 2654, Jan. 14, 1980]

§85a.8 Reporting of results

tigations of places of empl (a)(1) Specific reports of tions of each place of em under this part, with identifi the place of employment, will available by NIOSH to the e owner, operator or agent in c the place of employment, wit to the appropriate officials ar cies notified pursuant to § Prior to release of such report liminary report will be sent by to the employer, owner, oper agent for review for trade secre mation and technical inaccurac may inadvertently be presented report. If requested in writing, ti used to compile the reports made available by NIOSH to t ployer, owner, operator or ag charge at the place of employme cept that data will not be releas form that is individually identifis

(2) All specific reports of inve tions of each place of employ under this part will be available t public from the NIOSH Regional sultant for Occupational Safety Health in the appropriate NIOSH gional Office.

(3) In certain instances, specific ports of investigations of each plac employment will not be prepared such instances, a closing conference the place of employment will be a ducted by the NIOSH authorized ♫ resentatives and those individuals pe ticipating in the site visit to discu the findings of the site visit and appr priate recommendations.