C.F.R. » Title 42 » CHAPTER I—PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES › SUBCHAPTER G—OCCUPATIONAL SAFETY AND HEALTH RESEARCH AND RELATED ACTIVITIES › PART 85—REQUESTS FOR HEALTH HAZARD EVALUATIONS

42 C.F.R. § 85.5

Authority for investigations

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(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.

(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]
Notes of Decisions
Cited in 5 cases, 1980–1981 · leading case: United States of Am. v. Westinghouse Elec. Corp., Appellant, 638 F.2d 570 (3rd Cir. 1980).
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United States of Am. v. Westinghouse Elec. Corp., Appellant, 638 F.2d 570 (3rd Cir. 1980). “42 C.F.R. 85.5(a) (1979). Westinghouse would have us construe this regulation as a limitation self-imposed by NIOSH that restricts its examinations to only those records which must be retained under specific provision of the statute or regulations.”
In the Matter of Establishment Inspection of KEOKUK STEEL CASTINGS, Div. of Kast Metals Corp., 638 F.2d 42 (8th Cir. 1981). “NIOSH representatives then obtained, on an ex parte basis, an inspection warrant from the United States magistrate authorizing them to take representative breathing zone and areawide air samples and bulk samples of substances in specifically described areas, 2 conduct interviews…”
In Re Establishment Inspection of Inland Steel Co., 492 F. Supp. 1310 (N.D. Ind. 1980). “The Court will read 42 C.F.R. § 85.5 (a) narrowly to require a § 657(b) administrative subpoena procedure to facilitate such an inspection.”
In Re Establishment Inspection of Keokuk Steel Castings, 493 F. Supp. 842 (S.D. Iowa 1980). “This is consistent with 42 C.F.R. § 85.5 (a). During the oral arguments NIOSH recognized the disruptive effect personal interviews might have upon production and agreed to make all reasonable efforts to accommodate Keokuk.”
S. Indiana Gas & Elec. Co. v. Dir., Nat'l Inst. for Occupational Saf., 522 F. Supp. 850 (S.D. Ind. 1981). “” Such officers are authorized to employ “reasonable investigative techniques, including medical examinations of employees with the consent of such employees .”
— 42 C.F.R. § 85.5(a) — 1 case
United States of Am. v. Westinghouse Elec. Corp., Appellant, 638 F.2d 570 (3rd Cir. 1980). “42 C.F.R. 85.5(a) (1979). Westinghouse would have us construe this regulation as a limitation self-imposed by NIOSH that restricts its examinations to only those records which must be retained under specific provision of the statute or regulations.”
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