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,1 i ; i Friday February 12, 1982 Part II Department of Labor Safety and Health ! > I V T DTH 000036451 653a FedBra^B^stBr^VolJ^JNa^^MFpiday^ebruajgJLZlSBZ/RuIesandReguIations DEPARTMENTOF LABOR and/or pinning, taping or dipping it to his clothing: Occupational Safety and Health A personal air sampling device is a Administration small--about the size of two packs of 29 CFR Part 1903 cigarettes--battery operated pump which monitors the exposure to air Usa of Personal Sampling Daviess During inspection contaminants of the individual wearing it As with the dosimeter, the mein pert of the unit which is a vacuum pump, is aoincy: Occupational Safety and Health Administration (OSHA); Labor. ACTION: Issuance of interpretative and. procedural rule.. attached to the-belt end connected by a flexible hbee running along the subject's clothing to a silver-dollar-size cassette, impinoer or charcoal tube, depending an the substance to be monitored Hie SUMMARY: This interpretation of 29 CFR 1903.7(b) clarifies the existing regulation concerning sampling of employee pump moft commonly used byOSHA; weigh* approximately 31 ounaes. As dismissed below in detail, exposures during inspection and questions have recently been seised investigation of workplaces subject to regarding the authority of the Secretary . the Occupational Safety and Health Act of Labor (Secretary) to use these of 1970. Specifically, the interpretation devices. Accordingly, this interpretation makes clear that the term "employ other is published to make dear that the reasonable investigative techniques" authority conferred by the regulation at includes the attachment of personal 29 CFR 1903.7(b) indudes the sampling devices to employees in order attachment of personal sampling to monitor their exposures. In addition, devices to employees in order to monitor in today's Federal Register, OSHA is their exposures. Of course, as with aH proposing and inviting public comment regulations that confer authority, on an amendment to 1903.7(b) which implicit in the regulation is the would adopt this interpretation as a employer's obligation, consistentwife i0msuw nn* 9v iivutv ox r^2tmoswpMaoeMs^bcmusi& fate TtgBtruodar Marshallv. Besiow's, Rulemaking. Docket No. W-300, which fha,te8UA309(1978).topantetsodto appears in Part H of today's Federal takefnaseVomto impede the Register. GompManee Officer's exercise ofthe DATCK This interpretation is effective granted authority, February 12.1982. IL Background FOR FURTHRR INFORMATION CONTACT! (antes Foster. Office of Information. U.S. Department of Labor. 200 Constitution Avenue NW., Room N-3837. Washington, D.C. 20210. (202*423-8131). SURFUUMNTARY INFORMATION: A. Promulgation of29 CFR190B.7. The Occupational Safety and Healfe Act of 1970,29 U.S.C. 881 etseq. (theAotj was enacted "to aaeure so far as poeribie every erariring miin and women la A* Nation safe and healthful working oondHton end to preserve our bom - TIb ftwf.WumI Smtmty T--1R Administration ("OSHA" or "the agency") baa been utilizing personal sampling devices aa an aid in workplace inspections throughout its enforcement history. 'Die most common personal raaoarcaaT Inorder to cany out those purposes; section 8(a) of the Ad 29UJ.C 897(a), specifically authorizes the Secretary, upon presenting appropriate ,, cradantlads to the owner, operate, or agent ischarge: sampling devices presently in use are " (U?b enter without delayand at the noise dosimeter end air sampling reaeoaebletlaMe any factory, plaat, pump-The dosimeteria designed to - ratsbHshmant, eonstraetioe site, orether measure sound levels hr the workplace ' area, workplace oc esvtroament where week to determine compliance with the criteria established in the Secretary's ie performed tqran employee ofuaylqm end ~ (ZI To iaepect end investigate dirleg occupational noise exposure standard at ' tegular weddng hours and at other -- 29 CFR 1910.95. The device is reasonable times, end within reasonable - approximately the size of a pack of limits and.in a reasonable manner, any such cigarettes and weighs approximately 9 ounces It has a small wire extending from the main unit to the microphone which is about the size of a quarter. The main unit may be attached to the place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment and materials mania, sod to question privately any such-emptoysn owner, operator, agent or employee, - employee's belt or pocket; and the - TheAct was passed on December 29, microphone to the shirt lapeL The 1970 and became effective on-April 28; connecting wiremay be attached tightly 1971. One week later, the Serretesy to the employee by running it across proposed pursuant to his rulemaking authority under section 8(g)(2) of the Act 29 U.S.C. 887(g)(2), toadd a new Part 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" 38 FR 8378 ef seq. Included among these "procedures and policies'' was a provision (proposed 119834(b)) authorizing Compliance Officers "to take photographs and samples, [and] employ other reasonable investigative techniques * * *" during an inspection. 36 FR B378. After the dose of the comment period the "Conduct of Inspections" provision (renumbered 11903.7) was adopted with somechanges and made effective immediately upon its publication in the Federal Register on September 4.1971. 39 FR 1788a 17851. Specifically, 1903.7 provided in pertinent part: S1903.7 Conduct ofInspections. * '* * ' ' (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 seasonable investigative techniques, and question privately any employer, owner, operator, agent oremployee of an establishment (See i 1908.9 on trade secrets.) * (c) ha taking'photographsand samples. Compliance Safety and Health Offioers shall take reasonable precautions to insure that such actions with flash, spark-producing, or other equipment would not be hazardous. Compliance Safety and Health Officers shall comply with all employer safety and health rules and practices at the establishment being inspected and they shell wear and use appropriate protective clothing end equipment (d) The conduct of inspections shall be such as to preclude unreasonable disruption of the operations of the employer's establishment or % - * ' * * ^ Thus; tha promulgated regulation apodfiseily authorized OSHA oeppBance officers "to takeenvtamnmntal samples" and to employ "raasonable investigative techniques" duringthe conduct of inspections. B, The Secretary's interpretation of29 CFR l90X7(b}. Shortly after Part 1908 was adopted the Secretary issued hiatlicst OSHA Compliance Operations Manual (COM), a manual of guidelines to aaeure effective and unlfbnn implementation. of the Act Chapter XB1 of the COM. entided "Industrial Hygiene sod Occupational Health." contained laatmctiona regarding sampling methods DTH 00003645J) 4 Federal Register / VoL 47, No- 30 / Friday. February 12. 1982 ( Rule* and Regulation* AS to be used to determine employee are the Secretary's policy and practice "ah' sampling and noise level teabag in a exposure to huardous airborne in monitoring employee-exposures. In reasonable manner and to a reasonable contaminants. That section provided the preamble to hie standard regulating extent" that air samples must relate directly to . exposure to coke oven emissions (29 On February 13,1978, following 4 the exposure of one employee or more if CFR 1910.1029). the Secretary stated series of court proceedings, OSHA the samples ere to be of use in the generally that "(i]t is OSHA policy to began the inspection of Hum Creak's compliance program, and that the most monitor exposure* by taking personal facilities. At that time, the agency satisfactory method of meeting this samples,whenever possible. Area observed a February 10,1978 notice to , requirement is to use of a personal samples aregsaantty not as direct a employees which stated that the i sampler with the sampling head as dose measure of employee exposure as are wearing of noise and air sampling as is conveniehtly possible to the personal breathing zona samples." 41FR devices was against company policy. employee's head. COM at XID-IZ The y48798 (October 22.1979). Several health Whan OSHA requested twenty-hire section also provided that ares samples staadardfrrequfrs employers to measure employees to wear the devices,sii>teen are useful as an index of general contamination bet cautioned that they usually are only remotely related to the actual exposure of the employee. IcL employee exposure by taking personal sample*. She 29 CFR 19UU009(eKl)(lii) (coke oven rnntaatowe); 29CFR 19iai028(d)(lKiii) (lead* 29 CFR refused. Of die six who agreed, thtee changed work shifts and only three actually won the samplers. As a jusulf. the inspection produced inconclusive On July 1. 1174, OSHA replaced the 1910.l0IS(e)tl)(ili) (arsenic):The results. OSHA then asked the district COM with the Field OperadonaManual asbestoe standard requires samples to court to enjoin Plum Creek from (FOM]. Department of Lab. OSHA be collected from within the breathing impeding the inspection through its Field Operations Manual (July 1074). mm trf iweilnvaaa 19 f ni policy prohibiting employee cooperation Section M of Chapter Xm of the FOM inaion(f)(2Kl). Other standards state in sampling wee identical to its predecessor section in the COM and. despite other changes to the FOM. hea been essentially retained in every subsequent veriion of the manual; including the currant version. On August 15.1978, the Secretary's first Industrial Hygiene Field Operations Manual (IHFOM) became effsctivm In addition to detailing,various standard methods which utilirapersonal sampling . equipment that manual provided,that, before citations for violatingair quality- standardr(20 CFR 19101000 and?' lOiaiOOl) and thendaa standard^ CFR191086} issue, "[a)n exposure to an employee must occur. This requires the use of personal sampling techniques" ~ IHFOM at DC-1. The version of the IHFOM effective June 4.1979 also specified that personal sampling is the that breathing zone samples should be take* See 29 CFR 191011016 Appendix B (IVKAKU (acrylonitrile): 29 CFR 19W.1044 Appendix BfIVKAKI) (1,2dibtomo>3-cjuorop(opans). These ' Fedmal RagtoSsr statements and ' standard* demonstrate that the Sacntafyhaaahvayeccanidaradjheuseof personal sampfliag devices to t authorised andappropriate. In addition. the Secretary's longstanding practice of usingpersonal sampling davtoee and the scknowiedgsmsnt of that practice in decision*. confireie hi*totarpretetioir that using thoaa davtoee is-included within theaathoriaattog of f 1903.7 to employ "reasonable inveatigative techniques." D. Judicial decisions concerning^ ~>~ 19BtTand the Secretory'* authority to , As a result a hearing was held on the two separate questions involved: (i) The Secretary's authority to conduct sampling by attaching personal sampling devices to workers and (2) the district court's authority to order the rescission of the company's policy prohibiting employee cooperationwith suds sampling. The district court upheld the Secretary'! authority to conduct personal sampling if the employees agreed to cooperate, 452 F. Supp. at 478. and the Unlted States Court of Appeals for the Ninth Circuit on appeal, affirmed the district courts order and judgment 80S F. 2d~at 1290. The district couft also held that it had no power to order reedseton of the company policy, 452 F. Supp. at 577. the Ninth Circuit specifically addressed this issue on standard method for measuring air contaminants. IHFOM at X-t. and that usopononaisampiintdivicm.'LTha Ptum Crook decisions. The first case to appeal and agreed with the lower court 008 F. 2d at 1289-80. Thus, the Plum breathing zone samples art required to sddrsss Issues coocsruing the Creek courts held that although a' court determine compliance with aiz quality Secretary's authority to require the use could not order rescission of a company standards. M. at 0-l.Tha currant ofpersonal sampling devices during policy prohibiting employees from version provides hat compliance with OSHA inspectiona eta*Ptum Creek 'Wearing personal sampling devices fi alrquality standards shall be determined by mg--urtng exposures Lumber C& v. Hutton. 482 F. Sapp. 578 absent a regulation or law specifying (D. Mont 1978), q/fd 608 F. 2d 1283 (9th their use, the Secretary ia authorfeedto within the breathing rone arid etatee C3r. 1979). In that case, OSHA attempted conduct such personal sampling4hd that "OSHA defines the breathing zone on January 17,197K to conduct an that the use ofthose devices is e - to be a sphere approximately that in Inspection of Flam Cheek's fiber board "reasonable" inveatigative technique. diameter sumwmmngihehaad.? IHFOM plant sawmill aad plywood plant In . Z. Subsequent court decisions. One at&- ` Columbia Falla. Montana. The agency court of appeals ha* refused to follow Urns therecan be no doubtthat sine* Informed the company that employees the Ninth Circuit's holding in Plum tharadoptionafSPCFR 19007, which would be requested tewsarpersonal Creek that the court iwithout authority authorised the taking of SHvtroainantal sampling davtoee during the harpaction. to order an employer to permit its samples andtb*us* ofTaasanabt* Whan the company responded that its employes*to wear personal sampling investigative techniques, the agency has ss^leyeas wouldhe fbrbiddsn to wear devices contrary to the employer'll consistently and uaambiguouaiy the toattag devices, OSHA left the written policy. In re Establishmem interpreted that provision to allow and workplace and obtained an inspection Inapection ofKeokuk Steei Coatings. Infactencouregs the use of personal warrant from a United States Diriehm ofMost Metals. 838 F. 2d *2.46 sampling devteas during OSHA Magistrate. A second inspection was (8th Or. 1991). affg 493 F. Supp. 9*2 inspections. attempted on February 8.1978. but the (3J). low* 1990). Several district ;&ni C. Tito Secretary'spolicy andpractice company refused to comply with the also have declined to follow the Mint in monitoring smployaoexpoaurea. warrant OSHA than obtained a second Circuit's decision and have conclude Consistent with am above interpretation warrant which specifically authorized thatparsanai sampling is a reasonable DTH 000036454 Federal / VoL 47. No. 3a / Friday, February 12. 1982 / Rnlea and Regulations tecfcniqee which tbSacnatary< ipby. Eg. In reEstohUskmeot Inspection ofCleveland Electric Illumination Co., No. M80-2118 (NJJ. Ohio), appeal docketed. No. 81-3159 (6tb Cir. March 20.1981J; Marshall v. Rochester Shoe Tree Co.. Inc.. Mia. No* 308 (NJX N.Y. 1981); Marshall v. Miller Tube Carp.. 1978 CCH DSHD f 231212 at 28.059 (ED. N.Y. 1978). However, oa August 3.1981. a divided panel of the Unitad State* Court of . Appeals for tha Seventh Qiruit reached a&BmemlnsullInreJiStablishaient Inspection ofMetro-East Mfo. Ca and In reEstablishment Inspection of Century Casting Gvjz.685 F. 2d 80S (7th' CLr. 1981). The Courtagrasd thet the use of personal sampling devices is reasonable but concluded that 294JFK ' 1903T did not give employers "fair warning" of what is required or prohibited because it failed to Specify the use of personal samplers as a "reasonable investigative technique." 655 F. 2d at 810-12. The Court therefore affirmed two district coart oedars limiting the terms of inspection warrants so as to preelnde the use of personal sampling devices on employees, evenif dm employees agreed to weardm . iaiB..f mu*<lo>--v^cou..r.m.t ^gnna_ ------------- a u- -ja nt1 Seuetety amend the regalatfon to darffyite mastingaad give empfoyw. fafcwarmng of the type ofinvestigation dassmd meenabht SseM a*6S2. - -. ' required by 5 LLEC 553. Specifically, the rule interprets the tern "employ uthsr rsaarwshli investigative techniques" aa it ia used ia 29 CFR 190&7(b) ia cedar to clarify a provision believed by tha Seventh Circuit Court of Appeals to beaedtigueus. The rule also makes explicit e longstanding and consistently applied agency practice and procedure which is used in the oourse of . Thus, this ta change _ nightsofany person. 'since this rule doesant haves mbstential impact For example.atimethe Ssaotary has ahmqisaMd pmeoeal ssreplars aa an aid tatOBHA inspections, than can be no Justifltble reliance on a contrary prior practice. Furthermore, there is no prior iatarpretatioa of 11903.7(b) which woald precluds the use of personal samplers, and tha Seventh Circuit did not adopt a contrary interpretation. AddttfaimUy. this rule does not alter the criteria and la making tha ultimate decision til 06HA enforcement actions. La, wtistiwracompany has violated the Act AtiaMrihffJto aadee aad puhlic dnmsmmamcessmyin this ,under- HLRaasoni for Issuance of am Intarpaatativs Rule As discsseed above, the Secretary has always interpreted 1903.7 to petutil attachment Of personal sampling devices to employees as an aid in workplace inspections. Indeed, the Secretary's practice has been to nee snch devices whenever possible. Howaves since a question has beenraised abort the waning of dm term used-ln Ihe regaleHon and to remove *' any doubt on ihfs matter, this mtwprramm yiBinwiuiiww w make dear that theterm "employ other reasonabfo-invajtigrifve techniques'*' inchsdes atterhin--> ef personal samplers to Moreover, notice and comment rulamakJeg ia this instance woald create e-dakgptiaatweeUbe contrary to dm pahtic tirinreat Urn aae of panonal mrnantmingdevicas ianacasaary to theooadoct ofaffective sad efficient OSHA ion tit sampfatia dmfttalh Clrarit has beam alaawhere. the erf virtaaify all OSHA and* mdoofafncyfysocadmaad practice, _ rulemaking, pahtic partiesputioe and delay ineffective date are a stintsaMta ham OSHA's r to vffMtinefy monitor their I MridlttBtflAUBSlltl Justifies theeffective date of this rule. IV. Regulatory Impact Analysis In accordance with Executive Order 12291 (46 FR13193. February 17.1961), 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 the interpretation is not a "major" action which would necessitate further economic impact evaluation and the preparation of a regulatory impact analysis..Thi* conclusion it predicated on several factors. First, as noted above; it has always been-the 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 ta . tnt! employee, and neither hinder nor obstruct the employee's performance of hl3 job. Thus, there are no substantive adverse labor productivity effects; Second, since OSHA is required ter provide the personal samplers for use by its compliance officers, employers airs not required to pay for these devicejt Third the Secretary is unaware of ajtiy htjurioa or accidents caused by the Jim> of persona] samplers. Therefore, tb^se factor* atnmgfy indicate that this amendment would not increase costs to employers and would have tittle effect on the economy. Finally; OSHA finds that the provisions of the Regulatory Flexibility Act of 196(15 U.S.C. 801 etseq.. which require an assessment of the impact of certain regulatory, actions upon small entities, are inapplicable to this interpretative and procedural rule. V. Authority This document was prepared under the direction of Thome G. Auchter. AssistantSecretary of Labor for Occupational Safety aad Health. 200 Constitution AvenueNW., Washington. O.C.2OZ10L This interpretation is isiaed pursuant to auction 9(g)(2) of the Occupational Safety and Health Act of 1970.29U.SX. 657(g)(2) and Secretary of Labor'* Order No.fc-78 (41 FR 25059) ia implementation of tha general inspection and investigation authority conferred by section 8(a) of the Act 29 U.S.C. SSi^a). DTH 000036455 Federal Rsgbtar / VoL 47; No. 30 / Friday. February 12. 1962 / Rules, and Regulations PANT 1903--INSPECTIONS; CITATIONS AND PROPOSED PENALTIES la accordance with above. 29 CFR 190X7 is hereby amended by adding the following interpretative note at the end of|190X7(b): S100X7 Conduct of Inaparttoea. #*** (br * * IntauaetaMveNotoi As usad herein, the term "empioy otherreasonable investigetive tedarfqeee' tndhdev.bat is not Bmtted to. the use of deeicss to meesare emptoyee mpoeeres and the attachment of personal sampling-equipment such as dosimeters. pumpa. bedgwand other similar devices le employees In erdar to maaeura their A exposures. (29 U.S.C. 657(a). 857(g); SUIS.C. 553) Signed at Washington. DlC_ thia 40i day of. February 1982. _: - Thome G-Anfhmr. AamttamSaerMuy ofLabor. |iaiu< n wmi-n am t Ad; \ . I DTH 00003645 f> : j