Document DkDxDyaN1VKwvvd9rZY2LDpn

\ ,\ "i i l \ * ce masssasaassBSB^^sssBssBBsssoBBm Friday February 12, 1982 PWB , Department of Labor Occupational Safety and Health Uae of Personal Sampling Devices. During Inspection ^ I IV DTH 000036452 t i . i. i l i *- ' t 8KHT_______ Federal Register / Vol. 47, No. 30 A Friday, February I2i 1982 / Rules and Regulationa DEPARTMENT OF LABOR Occupational Safety and Health Administration 29 CFR Part 1903 Use of Personal Sampling Devices During Inspection aocncy: Occupational Safety and Health Administration (OSHA); Labor. action: Issuance of interpretative and proceduralrule.. . summary: This interpretation of 29 CFR 1903.7(b) clarifies the existing regulation concerning sampling of employee exposures during inspection and investigation of workplaces subject to the Occupational Safety and Health Act of 197a Specifically, the interpretation makes clear that the term `employ other reasonable investigative techniques" includes the attachment of personal sampling devices to employees in order to monitor their exposures. In addition, in today's Federal Register, OSHA is proposing and inviting public comment on an amendment to 1903.7(b) which would adopt this interpretation as a TvDBt 98V nOuOB wX rTVpvRS Rulemaking, Docket No. W-300. which appears in Part R of today's Federal Register. DATtK This interpretation is effective February 12,1982. FOR FURTHRR INFORMATION CONTACT: jamas Foster, Office of Information. U.S. Department of Labor. 200 Constitution Avenue NW., Room N-3837, Washington. D.C. 202ia (202-823-8151). gUFFCglMNTARY INFORMATIONr L Introduction ------ -AdminOiscbcmatMontiorOoaSl SHaf^eqtyra"atthTeHaalds agency") has been utilizing personal sampling devices as an aid in workplace inspections throughout its enforcement history. The moat common personal sampling devices presently in use ere the noise dosimeter and ate sampling pump. The dosimeter is designed to measure soundlevels in the workplace to determine compliance with the criteria established in the Secretary's occupational noise exposure standard at 29 CFR 19ia95. The device is approximately the size of a pack of cigarettes and weighs approximately 9 ounces. It has a smell wire extending from the main unitto the microphone which is about the size of a quarter. The main unit may be attached to the employee's belt or pocket and the microphone to the shirt lapeL The connecting wire may be attached tightly to the employee by running it across and/or pinning, taping or clipping it to his clothing: A personal air sampling device is a small--about the size of two packs of cigarettes-^-battery operated pump which monitors the exposure to air contaminants of the individual wearing it As with tha dosimeter, the mein pert of the unit which is a vacuum pump, is attached to die-belt and connected by a flexible hose running along the subject's clotting to a silverniollar-stze cassette. impinger or charcoal tube, depending on the substance to be monitoredThe pump mostcommonly used by OSHA weigh* approximately 31 ounces. As discussed below in detail questions have recently been netted regarding thrauthority of the Secretary . of Labor (Secretary) to use these devices. Accordingly, this interpretation is published to make clear that the authority conferred by the regulation at 29 CFR 1903.7(b) includes the attachment of personal sampling devices to employees in order to monitor their exposures. Of course, as with aH regulationa that confer authority, implicit in tha regulation is the employer's obligation. consistent write fate ripriraoriarMarrAaff v. Bartow'** foe. 438 UA 307(1978). to penMtiodtft takeaaactiaNteimpedatbe CorapBance Officer's exercise of.the granted authority. . Background A. Promulgation of39 CFR 1903.7. The Occupational Safety and Heafib Act of 1970.29 U.S.C. 881 at aaq. (theAct) wee enacted "to assure so far as paariMa every wadting men end women in the Nation eels end healthful worfctag uumtittona end to preserve ourlnaasa Meemrca*" hicedar to carry out thaw purposes, section 8(a) of the Act. 29IUMS 687(a). specifically authariaas-tte Secretary, upon presenting appropriate credentials to the owner, operator, or agent litcharge: (UTo Nrtar without delajiutd wt' reeanwhle tlmee any factory, plant. sstshHstaeset construction At*, orester area, workpiece oe snvlroanwntwteiewk Is performed by-an smpipyo ofsn . (2)To inspect and investigate dorteg regular weddnf hours and at other reasonable times. and within reasonable limits sad in a reasonsbis manner, any inch place of aoqdoyiMBt and all pertinent condMoas. structures, machine* spparitun deviate, equipment and materials therein, and te question privately any sudraptayac owner, operator, agent or employee. The-Act was passed on December 29, 1970 and became effective on April 28. 1971. One week later, the Somiary proposed pursuant to hie rulemaking aathority under section 8(g)(2) of the Act 29 U&C. 887(g)(2), to-add a new Put 1908 to Title 29 of the Code of Federal Regulations whose purpose was "to provide procedures and policies for the inspection, investigation ' * * provisions,of the Act" 36 FR 8378 et seif. Included among these "procedures and policies" was a provision (proposed 119985(b)) authorizing Compliance Oflten "to take photographs and samples, [end] employ other reasonable investigative techniques * * *" during an inspection. 36 FR 8378. After the close of the comment period, the "Conduct of Inspections" provision (renumbered 11903.7) was adopted with seme changes and made effective immediately upon its publication in the Federal Register on September 4.1971. 39 FR 17880.17851. Specifically. 5 1903.7 provided In pertinent part 1003.7 Conduct of Inspections. te 9 - (b) Compliance Safety and Health Officers shall have authority to take environmental samples and to take or obtain photographs related to the purpose of the inspection, employ other reasonable investigative techniques, and qeestion privately any employer, owner, operator, afent orjnnployee of an establishment. (See {1903.9: on trade secrets.) ' (4 In taking photdgraphSand ----- r1- Compliance Safety and Health Officers shall take reasonable precautions to insure that such actions with flash, spark-producing, or other equipment would not be hazardous. Compliance Safety and Health Officer* shall comply with all employer safety and health rules and practices at the establishment being inspected, and they shall wear and use appropriate protective clothing and equipment (d) The conduct of inspections shall be such aa to preclude unreasonable disruption of the operations of the employer's establishment te h. * * te ' Thu*, the promulgated regulation specifically authorized OSHA oempBmiee officers "to take- anrironmantal samples" and to employ "reasonable Investijpffive techniques" daringthe conduct of inspections. B. The Secretary's interpretation of29 CFR 19Q3J(h}. Shortly after Part 1908 was adopted, the Seaetary issued hisficst OSHA Compliance Operations Manual (COM), a manual of guidelines te assure effective and unifonn implementation of the Act Chapter XlR of the COM. entitled'-"Industrial Hygiene and Occupational Health." contained Instructions regarding sampling methods . / DTH 000036453 4 r. 1 \ 5 :1 /< Federal Register / VoL 47, No.-30 / Friday, Febniary 12. 1982 [ Rules and Regnlatione 8831 to be used to determine employe* are the Secretary's policy and practice "air sampling and noise level tasting in a exposure to hazardous airborne in monitoring employeeexposures. In reasonable manner and to a reasonable contaminant*. Hut (action provided the preamble to his standard regulating extant'* that air sampler muat relate directly to exposure to coke oven emissions (29 On February 13.1978. following a the exposure of one employee or more if CFR 1910.1029). tha Secretary stated series of court proceedings, OSHA the samples are to be of use in the compliance program, and that the most satisfactory method of meeting this . requirement is to use of a personal sampler with the sampling head as close as is conveniently possible to die- generally that "(i]t is OSHA policy to monitor exposures by taking personal sampleswhenever possible. Aren samples aregenerally not as direct a measure of employee expoeure as are personal breathing sane samples." 41FR began the inspection of Hum Creek s faculties. At that time, tho agency observed a February 10,1978 notice to employee* which stated that that wearing of noise and air sampling devices was against company pqlicy. employee's heed. COM at XIH-IZ. The ^40756 (October 22,1970). Several health Whan OSHA requested twenty-two section also provided that area samples standard*require employers to measure employees to wesr the devices..Sixteen are useful as an index of general employee expoeure by taking personal refused. Of the six who agreed, three contamination but cautioned that they samples; Soo 29 CFR 19104029(e)(l)(Ui) changed work shifts end only three usually are only remotely related to the (coke oven emissions); 20CFR actually wore the samplers. A* 4 result actual exposure of the employee. IcL 19iai02S(d)(lKiii) (lead); 29 CFR the inspection produced inconclusive On July 1.1974, OSHA repiaeedthe 19iaiOia(e)Cl}(iii) (arsenic); The results. OSHA then asked the district end with the Field Operations Manual asbestos standard requires temples to court to enjoin Phun Creek from (FOM). Department of Labor. OSHA becollected from within the breathing impeding the inspection throughlilts Field Operations Manual (Juhrl974). zone of employees. 29 CFR policy prohibiting employee cooperation Section Nof Chapter xm ofthe FOM 19iai001(f)(2)(l). Otherstandards state in sampling. was identical to its predeceeaor section in the COM and. despita other change# to the FOM, hen been essentially retained in every subsequent version of the manual- inrhuting the current version. On August IS, 197& the Secretary's, first Industrial Hygiene Field Operations Manual (IHFOM) became effective. In. addition to detailing,various standard methods which utilizs persanal sampling equipment, that manual providedthat before dtatioaefbr violatingair quality - staadardr{29 CFR 1910J.O0Q and' loiaiooi) end thenoise standerd(29 CFR 181086) issue, "[ajn exposure toan employee must occur. This requires the use of personal sampling techniques" ' IHFOM at DC-1. The version af the IHFOM effective June 4.1979 also specified that personal sampling is the that breathing sane templet should be taken. Soo 29 CFR 1910.1015 Appendix B (I9XAKD (acrylonitrile); 29 CFR 1910.1M4 Appendix B (IV)(A)(1) (1,2dibrono-3-chloropopaiie). These Asa result a hearing was held on the two separate questions involved! (1) The Secretary's authority to conduct sampling b'y attaching personal sampling davieaa to workers and [2] the standards demonstrate that the Secretary has always considered the use of personal sampling device* to be authorised andappropriate. In addition. the Secretary's longstanding practice of tuhifpareonal sampling device* and the acknowledgement of ttiot practice in . district court's authority to order the rescission of tho company's polity prohibiting employee cooperation with such sampling; The district court upheld the Secretary's authority to conduct personal sampling if the employees agreed to cooperate, 452 F. 9upp| at 570. and the United'States Court of AlWpeala dadaiona. confirms his faUarpretatlon that using those dsvtass i*included within the-avtfaastaatiosrof f 1903.7 to employ "naaonablo bnraetigative. techniques."" D.fimeialdoeiridnoconcoming-- ~~ 1803:7and Uto Secretory's authority to for the Ninth Circuit on appeal, Mffrmed the district court's orderand Judgment 000 P. 2dat 1290. The district cotjH also held that.it had no power to order rescission of the company policy's 452 P. Supp. at577; the Ninth Circuit specifically addressed this issue $n standard method for messurtBg eir contaminants, IHFOM atX-I, and that breathing cone aamplaa are teqaiied to uoopononaioampling doricoo. 1. Tho Phan Qmk dodoions..Tbo first case to address Isaacs concerning the appeal and agreed with tha lowdr court 008 F. 2d at 1250 00. Thus, tha Plian Crook courts held that although )i court determine compliance with ate quality Secretary's authority to require tha us* could not order rescission of a company standards. Aw. at 0-1. Tha current ofparsons? sampling davieaa during policy prohibiting employees front version provides that compliance with 0HA inspections was Hton Crook .wearing personal sampling devices airquality standards shall be Lumbor Co. v. Hatton, 482 F. Supp. 575 abaant a regulation or law apedming determined by measuring exposure* (a Mont 1975). affd 90S P. 2d 1283 (9th their use. the Secretary is authored to within the breetfaing aone and states Ctr. 19791 In that ease; OSHA attempted coodnct such personal samplingJtoti. that "OSHA deffama the breethfatg zone on January 17; l*7R to conduct an that the use of those devices is a - to be a sphere approximately 2.feet in Inspection of Pfum Creek's fiber board "reasonable" investigative technique. diameter sunoundlngthe heed" IHFOM plant sawmill and plywood plant in . 2: Subooquont court decision*. IDne atO- ': -y ; - ancy court of appeals ha* refused to ftfjlow Tins, tharecan-be he deafat thatsince soyaae the Ninth Circuit's holding in P/uin thredoption-ofltCFRlflOgT-. which I towear personal Creek that the court i* without authority to order an employer to permit itii When thecompany responded diet Its employee* to wear personal soaping investigativetechniques, the agency hee employes*wouldbe forbkhknto wear consistently and unambiguously the taating devices, OSHA laft the interpreted that proviekm to allow and workplace and obtained an inspection devioeecantrery to the. employer* written poltar. In n Establithmtkn Inopoction ofKaokuk Stool Cootmga,- In fact encouraga tha use of personal warrant from a United States Division ofKast Metals, 630 F. 2* 42.40 sampting davieaa daring OSHA Magistrate. A second inspection was inspections. attempted on February 5,1978, but the C. TheSoaotary'opolicy andpmctico company refused to comply with the (8th Or. 1001). affg 493 F. Supp. (142 (SU. Iowa 1900). Several diatrictliolourts also have declined to follow the Ninth inmonitoring oomioyoosxpaouroo. warrant OSHA than obtained a second Circuit*a decision and have concluded, Consistent with tin above intaspretation warrant which spcdficaily authorised that, penonal sampling i* a reasonable DTH 000036454, T Federal Register / VoL 47. No. 30- / Friday, February 12. 1982 / Rales and Regulation! tacfaniqar which thaSecratary ipiey. Eg, La reEetabiiolumnt Inspection ofClevelandElectric Illumiaatioa Co., No. M89-2118 (ND. Ohio), appeal docketed No. 81-3159 (sth Cir. March 20.1981); Marshall vRochester Shoe Tree Ca, Inc.. Mis. No309 (MD. MY. 1981); Marshall v. Miller Tube Carp* 1878 CCH OSHD f 2X212 at 28.059 (EO. MY. 1978). However, oa August X1981. a divided panel of the United Statae Court of Appeals for the Seventh Occult reached adigeremtraeiiiLln/efirtn/ifwAment Inspection ofMetro-East Mfg. Ca and Is reEstablishmentInspection of Century Casting Suyt,685F. 2d 90f (7XhT Cit 1981). The Courtagreed that the use of personal sampling devices is reasoaabla but concluded that 29 CFR ' 190X7 did not give employers "fair warning" of what is required or prohibited because it failed to specify the use of personal sampler* as a "reasonable investigative technique." 655 F. 2d at 810-1Z The Court therefore affirmed two district court oedsra limiting the terms of inspection warrants so as to precfaide the use of personal sampling devices on employees, eeenif (he employees agreed to wearthe . twicn* Secretary amendthe regulation to clarifyiW meaning and ghne --plpyaa Mewanringof the type ofhmetigi af. nttlX i for Issuaace of sm i Rule As discussed above, the Secretary ha* alwaye tntmpreted i 1903.7 to permit attachment df personal sampling devices to employees as an aid in workplan* inspections. Indeed, the Secretary's practice has been to nee such devices whenever possible. , However, atone question he* beenraised about the meaning of the term usedIn the regulation and to remove *' any doubt on tide matter, tide tBlt^nollDOBilOTIBpBvBlirauF make dear theft the term "employ other reasonable luustigetfue tBthefqeea*' includes attach--t of personal samplers to impfayem to monitor their 6XpOHPBB Since tide minis eel asMuruleufai practice, gananet notice of propneed rulemaking, public participation (' and delay in affsetive data are i required by 51L&C. 583. Specifically, therule interpret# the ten "employ other reeeoaable investigative technique*'' as 4t is uaad ie 29 CFR 190171b) in order to clarify a provision behaved by the Seventh Circuit Court of Appeals to baamhiguoas The rule also makes explicit a longstanding and consistently applied agency practice and pmedare ehek is used in the course of . Thus, this > not effect a change v irigbtoofany person. 'since this, hdedoeeset hnven^mbrinirttolknpact For eManpla.atonethe Saeretmy ha* ahnayi*4taad pareoual samplers me an aid tatOfiKA inspections. there can ba no justifiable reliance on a contrary prior practice. Furthermore, there is no prior interpretation of 11903.7(b) which would preclude the use of personal samplers, and the Seventh Circuit did not adopt a contrary interpretation. AditiWnunlfy. tide rale does not alter the criteria used in awking tha ultimate decision to 08HA enforcement action*, iou whethera.company has violated the Act AmmHuIp. notice and public rinthis .coder to provide _ public therein and delay in Moreover, notice and comment rulemaking in this inattnee would create n-dalnrlhntweuU be coatary to tha paHie totoraafc. The eae of personal moatingdevices ianweataary to thn oooduct ofaffective and efficient OSHA .Thedecision in smnleyaaethnteaeefia horn OSHA's inafadity te effsettoaiy monitor their | tiinl hi* immtnjviitianln justifies the this rule. effective date of IV. Regulatory Impact Analysis In accordance with Executive Order 12291 (46 FR13193. February 17.1981). OSHA has carefully assessed the potential impact of the interpretation, of 29 CFR 1903.7(b). Based on the guidelines of the Executive Order. OSHA has concluded that die interpretation is not a "major" actio* which would necessitate further economic impact evaluation and tha preparation of a regulatory impact analysia This conclusion is predicated on several factors. First as noted above, it has always beenthe Secretary's practice to use personal sampling devices on employees whenever possible. The Secretary's experience indicates that these devices are compact, take minimal time to attach to ino employee, and neither hinder nuf obstruct the employee's performance of h:3 job. Thus, there are no substantive adverse tabor productivity effects. Second, since OSHA is required to provide the personal samplers for us* by its compliance officers, employers ate not required to pay for these device*. Third, the Secretary is unaware of any Injuries or accidents caused by the ktew of personal samplers Therefore, these factum-strongly indicate that this amendment woekt not increase Goats to employe! s and would have little edict on the economy. Finally. OSHA Ends that the provisions of the Regulatory Flexibility Act of 1980.5 U.S.C 801 et seq., which require an assessment of the impact of certain regulatory actions upon small entities, are inapplicable to this interpretative and procedural rule. V. Authority Hus document was prepared under tha direction of Thoms G. Auditor, AsaistantSecmtory of Labor for Occupational Safety and Health. 298 Constitution AvanueNW, Washington. HC.20210. This interpretation is issued pursuant to section 8(gJ{2]af the Occupational Safety and Health Aid of 197a 29 U.&C. 857(g)(2) and Secretary of Labor's Order No.8*78 (41 FR 25053) in implementation of the general inspection and investigation authority conferred by section 8(a) of the Act 29 U.S.C. 387(a). DTH 0000364 f'5 Fad--T Regbtar / VoL 47; No. 30- / Friday. February 12. 1962 / Rules, and Regulations PART 1903--INSPECTIONS; CITATIONS AMD PROPOSED PENALTIES la accordance with above. 29 CFR 198L7 is hereby amended by adding tbe following interpretative note at tbe end of 1190&J(b): . ' S1S03L7 Conduct of inepectlona. **e# __ (bl * * * ._ Inteqnelaltva Note: As used herein, tbe term "employ otherreasonable iovestlgBttve techniques* tadudes. but h not hotted to. the ue of sices to meaeere employee expeeeiee aed the eWechmewt of personal sampling squipmsnt such at dosimettrs. pumps. badgw and other sunder devices to emplojins in order te measure their A exposores. ' (29 U.S.C. 657(a). 657(g); StT.S.C. 553) Signed at Washington. DlC_ this 4th day of. February 1982. _: Thosns G. AiirhUr. A ssSonr 'Tarredry ofLabor. l>an-- nieim-naisit iv _ '. ' '\ ' T- 'V. V--' ' ^ DTH 00003645B