Attachment B
[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 

 


 SERVICES 

 

PAR 

 

Se 

85a.1 

85a.2 Definitions. 

85a.3 Authority for 

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

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

85a.6 Provision of suitable space for employee interviews 

 examinations. 

85a.7 Imminent dangers. 

85a.8 Reporting of result 

 

83 Stat. 803; 30 U.S.C. 957. 

 

[[ 

 

Se 

 

the provisions of this part apply to investigations of places of 

employment which are conducted by NIOSH under sections 20 and 8 of 

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 

covered by part 85 of this chapter. 

 

[4 

 

Se 

 

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 

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 

Occupational Safety and Health Administration Assistant Regiona 

Directors for Occupational Safety and Health. 

 (c) Informed consent means the knowing cons 

his legally authorized representative, so situated as to be able to 



force, fraud, deceit, duress, or other form of constraint or coercion. 
Th 

 (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 descr 

 (4) A disclosure of any appropriate alternative procedures that 

might be advantag 

 (5) An offer to answer any inquiries concerning the procedures 

 (6) An instruction that the person is free to withdraw his consent 

and to discontinue participation in the 

prejudice to the subject. 

 (d) Investigation means research projects, experiments, 

demonstrations, studies, and similar activities of NIOSH which are 

conducted under section 20 

Act. 

 (e) Legally authorized representative means an individual or 

judicial or other body authorized under applicable law to consent on 

behalf 

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 Serv 

 (g) NIOSH authorized representative means a person authorized by 

NIOSH to conduct investigations of places of employment, including 

person that is fulfilling a contract agree 

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 Regula 

 (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 Hea 

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 m 

 (m) Employer has the same meaning as stated in the OSH Act and f 

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] 

 

[[ 

 

Se 

 

NIOSH credentials are authorized by the Director, NIOSH, under sect 

20 

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 



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 emplo 

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 Heal 

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 

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] 

 

Se 

 employment. 

 

 (a) Except as otherwise provided in paragraph (b) of this sectio 

NIOSH authorized repres 

of 

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) 

the OSH Act, or if no State agency has been designated under the OSH 

and in the case of the FMSH Act, the State agency which, in 

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 investigati 

are conducted under the OSH Act; 

 (4) The appropriate MSHA District Office; the Director, BO 

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 

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 authoriz 

representatives will contact those individuals specified in 

Sec. 85a.4(a)(2) concerning the nature and details of the site vi 

 (c) In those instances where site visits are not necessary to the 

conduct of an investigation, the NIOSH authorized representati 

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]] 

 

th 

(a)(4) of this 

in 

 

[41 FR 45002, Oct. 14, 1976, as amended at 45 FR 2654, Jan. 1 

 

Se 

 

representatives will present their credentials to the employer, 

op 

nature, purpose and scope of the investigation and the records 

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 empl 

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 employ 

operator or agent in charge at the place of employment shall precisely 

identify that information which 

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 sectio 

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 

secret designation from such information. The employer, owner, op 

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 cons 

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 pla 

of employment where such entry will reveal trade secrets. In those 

instances, where the subject information is needed or access to the a 

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 

agency and/or employees, who were notified pursuant to Sec. 85a.4(a)(1) 

or Sec. 85a.4(a)(2) to accompany the NIOS 

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 
pa 

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 th 

consent of the employer, owner, operator or agent in charge at the pl 

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 inter 

or 

shall be permi 

du 

 (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 

 (d)(1) NIOSH authorized representatives are authorized: To collect 

environmental samples and samples of substances; to measure 

environmental conditions and employee exposures (including measureme 

of employee exposure by the attachment of personal sampling device 

employees with their consent); to take or obtain photographs, motion 

pictures or videotapes related to the purpose of the investiga 

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 an 

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 mig 

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 Sub 

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 Administr 

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 employm 

 

[41 FR 45002, Oct. 14, 1976, as amended at 45 FR 2654, Ja 

FR 4739, Feb. 8, 1984] 

 

Se 

 examinations. 

 

employment shall, on request of the NIOSH authorized representatives, 

provide suitable space at 

re 

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 dange 

 

 Whenever, during the cours 

un 

reasonable basis for an allegat 

im 

the place of employment and those employees who appear to be in 

immediate danger of such allegation 

 

[[Page 565]] 

 

and will inform the agencies identifi 

(a 

 

[4 

 

Sec. 85a. 

 

 

employment under this part, with identification of the place of 

employment, will be mad 

op 

the appropriate officials and Agencies notified pursuant to 

Sec. 85a.4(a). Prior to release of such reports, a preliminary rep 

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 writ 

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 employmen 



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 NIO 

 (3) In certain instances, specific reports of investigations o 

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 

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, 

authorization of the employee; otherwise, the specific findings an 

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 

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 s 

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 technic 

reports, NIOSH information packets, scientific journals, presentations 

at technical meetings, or in other similar 

total investigation will be presented in a manner which does not 

identify any specific place of employment; however, it should be not 

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]