June 13, 1995

MEMORANDUM FOR:     MICHAEL G. CONNORS
                   Regional Administrator

FROM:               JOHN B. MILES, JR., Director 
                   Directorate of Compliance Programs

SUBJECT:            Lockout/Tagout Citations Against the USDA

Thank you for your April 11 letter requesting clarification of the Occupational Safety and Health Administration's (OSHA's) enforcement of the lockout/tagout standards, 29 CFR 1910.147, with USDA - Food Safety and Inspection Service (FSIS). Specifically, the primary concern is whether FSIS inspectors meet the definition of "authorized" or "affected" employee.

The FSIS is required to comply with 29 CFR 1910.147 in its entirety and must have a written lockout/tagout program covering each FSIS workplace. FSIS inspectors may be considered both "authorized" and/or "affected" employees as defined by the standard. If FSIS inspectors perform pre-operation inspection tasks where they are exposed to unexpected startup and associated hazards and/or are exposed to hazards such as moving parts during an inspection, their actions meet the definition of servicing and maintenance and they would be considered "authorized" employees under the lockout/tagout standard and would be required to lockout. If the equipment must be running during any part of the inspection, appropriate machine guarding must be in place to prevent exposure by the FSIS inspector.

The determination of whether an FSIS employee is considered "authorized" or "affected" is a case-by-case decision and should be made by FSIS. Inspectors should be placed in the FSIS lockout/tagout program on a site-by-site basis. Training should be given to the FSIS employees so that they know when they are doing activities that would place them in the "authorized" category and what their procedures should be. We suggest that the on-site OSHA compliance officer (CSHO) review the FSIS lockout/tagout program at each location and find out how FSIS has identified its inspectors. Then the CSHO should determine which definition fits the inspectors' activity. If violations of the lockout/tagout program are identified or if there is no program, appropriate OSHA Notices should be issued to FSIS.

Mr. Joseph A. Powers, Assistant Deputy Administrator and Designated Agency Safety and Health Official for FSIS, requested this clarification in the attached May 10, 1994 letter. OSHA's response in the attached August 8, 1994, letter specifies that OSHA does not have any national agreement with FSIS. OSHA does not agree that all FSIS inspectors should be considered "affected" employees under the lockout/tagout standard. As stated above, this will depend entirely on what their activities are.

Attachments



August 8, 1994

Mr. Joseph A. Powers
Assistant Deputy Administrator
Designated Safety and Health Official
Food Safety Inspection Service
United States Department of Agriculture
Washington, D.C. 20250

Dear Mr. Powers:

This is in response to your May 10 letter in which you request an interpretation of 29 CFR 1910.147, Control of Hazardous Energy as it applies to the Food Safety and Inspection Service (FSIS). Specifically, you ask whether FSIS inspectors are required to assume the responsibilities of the "authorized employee" or those of the "affected employee" when engaged in workplace activities involving the servicing and maintenance of machines and equipment in which the unexpected energization, start up or release of stored energy could cause injury to employees. The FSIS is required to comply with 29 CFR 1910.147 in its entirety.

Additionally, you ask in your letter that a uniform policy be established regarding the interpretation of these two definitions. However, consideration is given to the requirements established through the Memorandum of understanding (MOU) and those dictated by the standard, in all probability most FSIS inspectors would be considered "authorized employees." Nonetheless, OSHA believes that the determination of whether an employee is considered "authorized" or "affected" should be made by the on-site OSHA compliance inspector. This individual can best identify each type or class of person by establishing their role in the control of energy and determining what knowledge or information they must possess regarding locking out or tagging out energy isolating devices.

A copy of the MOU and 29 CFR 1910.147 are enclosed. If you need further assistance please contact John E. Plummer, Director, Office of Federal Agency Programs at 202-219-9329.

Sincerely,



John B. Miles
Director
Directorate of Compliance Programs

Enclosures



May 10, 1994

Mr. Joseph A. Dear
Assistant Secretary for Occupational
Safety and Health
200 Constitution Avenue, S.W., Room S2315
Washington, DC 20210

Dear Mr. Dear:

Recently, the Food Safety and Inspection Service (FSIS) and OSHA signed a revised memorandum of understanding addressing the training of FSIS employees to better enable them to recognize and refer to OSHA serious safety and health hazards affecting plant employees. In this spirit of cooperation, we are requesting a formal interpretation of 29 CFR 1910.147, the control of hazardous energy (lockout/tagout) standard as it applies to FSIS inspection personnel.

FSIS has more than 7,800 personnel assigned to 6,700 private sector meat and poultry plants to carry out inspection laws. We are a regulatory Agency--these plants must apply for and be approved for inspection service. Our employees do not work for the plant and they are not guests of the plant. One of the tasks that our inspectors perform is pre-operational sanitation inspection. This is a visual inspection of the premises, facilities, equipment, and utensils prior to production. The equipment that is being inspected visually by FSIS employees only for sanitation reasons is owned and operated by the plant and maintenance tasks are performed by plant employees.

FSIS employees are not trained or authorized to service or maintain machines and equipment in meat and poultry plants. This is the responsibility of the plant. It is our position that FSIS employees should be categorized under the "affected" employee definition of the standard. Our employees perform pre-operational inspection tasks in areas where the plant is required to implement lockout or tagout procedures. We do not perform pre-operational inspection unless a plant applies lockout or tagout devices on the machines or equipment. If our inspection personnel can not perform pre-operational inspection, then we have the authority to delay the start of production.

We are seeking this official interpretation from the national office because we have had different interpretations of the Lockout/Tagout Standard by OSHA Area Offices during their compliance inspections. Some offices have agreed that our employees are "affected" and others do not agree and believe that our employees are "authorized." Your decision on this matter will permit us to develop a uniform policy that is consistent with the intent of the standard.

Sincerely,



Joseph A. Powers
Assistant Deputy Administrator
Designated Agency Safety and
Health Official




April 11, 1995

MEMORANDUM FOR:     JOHN B. MILES JR., DIRECTOR
                   Directorate of Compliance Programs

FROM:               MICHAEL G. CONNORS 
                   Regional Administrator

SUBJECT:            Lockout/Tagout Citations Against the USDA

A situation has arisen in this Region which requires your assistance. Attached is a copy of correspondence recently received from Stephen M. Alberda, Safety Coordinator for Bil Mar Foods in Zeeland, Michigan. Mr. Alberda requests clarification of the company's responsibility to isolate a source of hazardous energy for inspectors from the Food Safety and Inspection Service (FSIS) prior to inspecting equipment. Specifically, Mr. Alberda would like to know if Bil Mar would be in violation of the Lockout/Tagout Standard if they allow their employees to lock out equipment for FSIS.

This is not the first time this issue has arisen. On January 18, 1994 an inspection of the USDA-Food Safety and Inspection Service located at Bil Mar Foods was conducted. As a result, a citation was issued to the FSIS for violation of 29 CFR 1910.147(c)(1), failure to establish a lockout/tagout program.

Our inspection revealed that USDA employees would first have a facility maintenance person lock the machine out and then conduct their sanitation inspection relying solely on another person's lock. This practice does not place USDA employees in direct control of the machinery or equipment, therefore a potential for an accidental or unauthorized machine start-up exists.

FSIS cites conflicting responses from OSHA as to the proper classification of their employees. USDA/FSIS indicates that other OSHA offices have accepted a statement declaring their employees as "affected employees" thus not required to comply with all the elements of the standard. USDA officials at the National level have told us that they have an "agreement" with OSHA that USDA employees are affected employees under the standard.

However, under the definition of the standard, affected employees become authorized employees when their duties include performing servicing or maintenance. Inspecting is an activity identified as servicing or maintenance under the definitions outlined in the standard.

Due to the fact that we were unable to reach resolution at the Regional level, we made contact with staff at the Office of Federal Agency Programs for further guidance. To date, we do not have a definite answer as to whether FSIS inspectors are considered affected or authorized employees.

Mr. Alberda is extremely concerned with this matter. He related to us that MIOSHA has indicated that Bil Mar would be issued a citation as controlling employer in this situation. We have not been able to confirm this directly with MIOSHA. Mr. Alberda has also told us that employees of Bil Mar question their need to comply with the standard when employees of the Federal government do not. We have provided Mr. Alberda with an interim response. However, your immediate attention to this matter is appreciated in order to fully address Mr. Alberda's concerns. Mr. Alberda has given us an opportunity to resolve this matter internally prior to seeking outside assistance.

We have also attached additional information with regard to this case. However, if you have any questions with regard to this matter, please contact Mr. John Hermanson at the Regional Office.