July 24, 2006

Mr. Glen P. Gordon
Roux Associates, Inc.
25 Corporate Dr, Ste 230
Burlington, MA 01803

Thank you for your May 18, 2004 letter to the Occupational Safety and Health Administration's (OSHA) Directorate of Enforcement Programs (DEP). This letter constitutes OSHA's interpretation only of the requirements herein, and may not be applicable to any question(s)/scenario not delineated within your original correspondence. You had several questions regarding the use of portable battery powered devices. We apologize for the delay in responding to your request.

Question 1: Does the definition of "electric utilization equipment" include hand held, battery powered equipment such as electrical test equipment, hand held gas detectors, water quality meters, groundwater pumps, PDA's and cellular telephones?

Reply: Yes. The definition for "utilization equipment" is located in 29 CFR 1910, Subpart S — Electrical, §1910.399, Definitions applicable to this subpart. It reads: "Utilization equipment means equipment which utilizes electric energy for mechanical, chemical, heating, lighting, or similar useful purpose." The type of equipment you described above does meet this definition.

Question 2: Is the employer required to verify that all employee furnished equipment is approved (whether battery powered or cord and plug [connected])?

Reply: Yes. It is the responsibility of the employer to ensure that electrical equipment used by their employees is approved for the purpose. The definition for "approved for the purpose" is located in 29 CFR 1910, Subpart S — Electrical, §1910.399, Definitions applicable to this subpart. In part, it reads: "Approved for a specific purpose, environment, or application described in a particular standard requirement." 29 CFR 1910, Subpart S — Electrical, paragraph 1910.303(b)(1), Examination, installation, and use of equipment, states, "Safety of equipment shall be determined using the following considerations:

(i) Suitability for installation and use,
(ii) Mechanical strength and durability,
(iii) Electrical insulation,
(iv) Heating effects under conditions of use,
(i) Arcing effects,
(ii) Classification by type, size, voltage, current capacity, specific use, and
(iii) Other factors which contribute to the practical safeguarding of employees using or likely to come in contact with the equipment."

Question 3: Is an employer required to verify that employees that use employee furnished equipment in hazardous locations (e.g. petroleum storage facilities, flammable liquid transfer areas) is approved for that hazardous location (other than through employee training)?

Reply: Yes. It is the responsibility of the employer to ensure that their employees are working in safe and healthful conditions.

Question 4: Is an employer required to prevent employees from using employee furnished equipment (e.g. cell phones) in a hazardous location not under the employer's control (such as a gas station while an employee is traveling to or from a job site) that is not listed to the hazards present (gasoline refueling areas are Class I Division 2, Group D, and would require the use of intrinsically safe telephones)?

Reply: The Occupational Safety and Health Act of 1970 and as amended through January 1, 2004, is applicable with respect to employment performed in the workplace. In the examples you mentioned above, employees in transit to a job site but doing consumer business are not under the direct control of the employer. The safety of your employees as a consumer may be enforced by one or more of the consumer safety officials located in the jurisdiction where the infraction occurred.

Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov. If you have any further questions, please feel free to contact the Office of General Industry Enforcement at (202) 693-1850.

Sincerely,



Richard E. Fairfax, Director
Directorate of Enforcement Programs