August 14, 1995

MEMORANDUM FOR:     REGIONAL ADMINISTRATORS

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

SUBJECT:            Lockout/Tagout Citations Against the USDA

The Occupational Safety and Health Administration (OSHA) has received many requests for clarification of 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. This memorandum is to provide guidance to your CSHO's when FSIS worksites are being inspected.

The FSIS is required to comply with 29 CFR 1910.147 in its entirety and must have a 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 the hazards associated with unexpected energization, start up, or release of stored energy, or to other hazards such as unguarded moving parts, they meet the definition of servicing and maintenance; and they would be considered "authorized" employees under the lockout/tagout standard. They would be covered under the standard and, among other things, 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. It is the responsibility of FSIS supervision to ensure that FSIS inspectors are covered by an adequate lockout/tagout program at the worksite to which they are assigned. The facility must therefore, have an effective energy control program in place and the FSIS inspectors should be instructed and follow the procedures required under that program. 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