Rule: Worker Safety and Health Program Chronic Beryllium Disease Prevention

Thursday,
February 9, 2006
Part II
Department of
Energy
10 CFR Parts 850 and 851
Chronic Beryllium Disease Prevention
Program; Worker Safety and Health
Program; Final Rule
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6858 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations
DEPARTMENT OF ENERGY K. Review Under the Treasury and General safety and health regulations would give
Government Appropriations Act, 2001 DOE workers a level of protection
10 CFR Parts 850 and 851 L. Congressional Notification equivalent to that afforded them when
VI. Approval of the Office of the Secretary
[Docket No. EH–RM–04–WSHP] section 3173 was enacted. Specifically,
Introduction under the December proposal, a
RIN 1901–AA99 contractor would comply with either a
This final rule implements a worker
safety and health program for the set of requirements based primarily on
Chronic Beryllium Disease Prevention
Department of Energy (DOE or the the provisions of DOE Order 440.1A
Program; Worker Safety and Health
Department). This program establishes ‘‘Worker Protection Management for
Program
the framework for a worker protection DOE Federal and Contractor
AGENCY: Department of Energy program that will reduce or prevent Employees,’’ March 27, 1998 (the
ACTION: Final rule. occupational injuries, illnesses, and current DOE order on worker safety and
accidental losses by requiring DOE health) or a tailored set of requirements
SUMMARY: The Department of Energy approved by DOE. The contractor would
contractors to provide their employees’
(DOE) is today publishing a final rule to implement these requirements pursuant
with safe and healthful workplaces.
implement the statutory mandate of to a worker safety and health program
Also, the program establishes
section 3173 of the Bob Stump National approved by DOE.
procedures for investigating whether a
Defense Authorization Act (NDAA) for On January 8, 2004, DOE held a
requirement has been violated, for
Fiscal Year 2003 to establish worker televideo conference to allow DOE
determining the nature and extent of
safety and health regulations to govern employees, DOE contractors, contractor
such violation, and for imposing an
contractor activities at DOE sites. This employees, and employee
appropriate remedy.
program codifies and enhances the representatives to become familiar with
In December 2002, Congress directed
worker protection program in operation the proposal. DOE held public hearings
DOE to promulgate regulations on
when the NDAA was enacted. on the proposal in Washington, DC, on
worker safety and health regulations to
EFFECTIVE DATE: This rule is effective cover contractors with Price-Anderson January 21, 2004, and in Golden,
February 9, 2007. The incorporation by indemnification agreements in their Colorado, via televideo on February 4,
reference of certain publications listed contracts. Specifically, section 3173 of 2004. In addition to the oral comments
in this rule is approved by the Director the National Defense Authorization Act at the public hearings, DOE received
of the Federal Register as of February 9, (NDAA) amended the Atomic Energy approximately 50 written comments on
2007. Act (AEA) to add section 234C (codified the December proposal.
FOR FURTHER INFORMATION CONTACT: as 42 U.S.C. 2282c), which requires DOE After becoming aware that the
Jacqueline D. Rogers, U.S. Department to promulgate worker safety and health Defense Nuclear Facilities Safety Board
of Energy, Office of Environment, Safety regulations that maintain ‘‘the level of (DNFSB), which has safety oversight
and Health, EH–52, 1000 Independence protection currently provided to * * * responsibility with regard to DOE
Avenue, SW., Washington, DC 20585, workers.’’ See Public Law 107–314 nuclear facilities, had concerns about
202–586–4714. (December 2, 2002). These regulations the proposed rule, DOE suspended the
SUPPLEMENTARY INFORMATION: are to include flexibility to tailor rulemaking by publishing a notice in the
I. Introduction implementation to reflect activities and Federal Register on February 27, 2004
II. Legal Authority and Relationship to Other hazards associated with a particular (69 FR 9277). DOE stated in that notice
Regulatory Programs that DOE would consult with the
A. Legal Authority
work environment; to take into account
B. Relationship to Other Regulatory special circumstances for facilities DNFSB in order to resolve its concerns,
Programs permanently closed or demolished, or and also that it would consider views
III. Overview of the Final Rule which title is expected to be transferred; received from other stakeholders on its
IV. Section-by-Section Discussion of and to achieve national security proposal.
Comments and Rule Provisions missions in an efficient and timely As a result of its consultation with the
A. Subpart A—General Provisions manner (42 U.S.C. 2282c(3)). Section DNFSB and consideration of other
B. Subpart B—Program Requirements comments, DOE published a
234C also makes a DOE contractor with
C. Subpart C—Specific Program
Requirements such an indemnification agreement that supplemental notice of proposed
D. Subpart D—Variances violates these regulations subject to civil rulemaking (SNOPR) in the Federal
E. Subpart E—Enforcement Process penalties similar to the authority Register (70 FR 3812) on January 26,
F. Appendix A—Worker Safety and Health Congress granted to DOE in 1988 with 2005. The SNOPR proposed to (1) codify
Functional Areas respect to civil penalties for violations a minimum set of safety and health
G. Appendix B—General Statement of of nuclear safety regulations. Section requirements with which contractors
Enforcement Policy 234C also directs DOE to insert in such would have to comply; (2) establish a
V. Procedural Review Requirements formal exemption process which would
contracts a clause providing for
A. Review Under Executive Order 12866
B. Review Under Executive Order 12988 reducing contractor fees and other require approval by the Secretarial
C. Review Under Executive Order 13132 payments if the contractor or a Officer with line management
D. Review Under Executive Order 13175 contractor employee violates any responsibility and which would provide
E. Review Under the Regulatory Flexibility regulation promulgated under section significant involvement of the Assistant
Act 234C, while specifying that both Secretary for Environment, Safety and
F. Review Under the Paperwork Reduction sanctions may not be used for the same Health; (3) delineate the role of the
Act violation. worker health and safety program and
G. Review Under the National On December 8, 2003, DOE published its relationship to integrated safety
Environmental Policy Act
H. Review Under the Unfunded Mandates
a notice of proposed rulemaking (NOPR) management; (4) set forth the general
Reform Act to implement section 3173 of the NDAA duties of contractors responsible for
I. Review Under Executive Order 13211 (68 FR 68276). The December proposal DOE workplaces; and (5) limit the scope
J. Review Under the Treasury and General was intended to codify existing DOE of the regulations to contractor activities
Government Appropriations Act, 1999 practices in order to ensure the worker and DOE sites.
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6859
On March 23, 2005, DOE held a U.S.C. 7151(a); Sec. 641 of DOEOA, 42 procurement regulations. See 48 CFR
televideo forum to provide DOE U.S.C. 7251; and Sec. 644 of DOEOA, 42 952.223–71, 970.5223–1.
contractors, contractor employees, and U.S.C. 7254. Overview of DOE Order 440.1A. DOE
their representatives with the Order 440.1A establishes a
B. Relationship to Other Regulatory comprehensive worker protection
opportunity to ask questions and receive Programs
clarification on the provisions of the program that provides the basic
supplemental proposed rule. The public DOE (like its predecessors, AEC and framework necessary for contractors to
comment period for the supplemental ERDA) has implemented this authority ensure the safety and health of their
proposal ended on April 26, 2005. in a comprehensive manner by workforce. In short, the Order provides
During this period, DOE received 62 incorporating appropriate provisions on a well-integrated, cost-effective,
comment letters from private worker safety and health into the performance-based program designed to
individuals, DOE contractors, other contracts under which work is ensure contractors recognize hazards,
Federal agencies, and trade associations performed at DOE workplaces. During prevent accidents before they happen,
in response to the supplemental the past decade, DOE has taken steps to and protect the lives and well-being of
proposal. In addition, public hearings ensure that contractual provisions on their employees.
were held on March 29 and 30, 2005, in worker safety and health are tailored to Such ‘‘corporate’’ programs have long
Washington, DC. Responding to a reflect particular workplace been recognized by private industry as
request from the Paper, Allied- environments. In particular, the the most effective and efficient means to
Industrial, Chemical and Energy ‘‘Integration of Environment, Health and protect worker health and safety on the
Workers International Union, DOE also Safety into Work Planning and job. Where applied, these programs have
held a public hearing on April 21, 2005, Execution’’ clause set forth in the DOE consistently resulted in enhanced
in Richland, Washington, via televideo. procurement regulations requires DOE worker protection, decreased worker’s
DOE has carefully considered the contractors to establish an integrated compensation premiums, increased
comments and data from interested safety management system (ISMS). See productivity and employee morale,
parties, and other information relevant 48 Code of Federal Regulations (CFR) declines in absenteeism and employee
to the subject of the rulemaking. 952.223–71 and 970.5223–1. As part of turnover, and decreased employer
this process, a contractor must define liability. The Occupational Safety and
II. Legal Authority and Relationship to the work to be performed, analyze the Health Administration (OSHA)
Other Regulatory Programs potential hazards associated with the recognized the effectiveness of such
A. Legal Authority work, and identify a set of standards programs in its Safety and Health
and controls that are sufficient to ensure Program Management Guidelines
DOE has broad authority to regulate safety and health if implemented (published in 1989), which were
worker safety and health with respect to properly. The identified standards and derived from the safety and health
its nuclear and nonnuclear functions controls are incorporated as contractual programs of private industry firms with
pursuant to the Atomic Energy Act of requirements through the ‘‘Laws, the best safety and health performance
1954 (AEA), 42 U.S.C. 2011 et seq.; the Regulations and DOE Directives’’ clause records. DOE Order 440.1A program
Energy Reorganization Act of 1974 set forth in the DOE procurement requirements are organized and
(ERA), 42 U.S.C. 5801–5911; and the regulations. See 48 CFR 970.0470–2 and consistent with the four basic program
Department of Energy Organization Act 970.5204–2. elements of OSHA’s Guidelines on
(DOEOA), 42 U.S.C. 7101–7352. Currently DOE Order 440.1A, Workplace Safety and Health
Specifically, the AEA authorized and ‘‘Worker Protection Management for Management (i.e., (1) management
directed the Atomic Energy Commission DOE Federal and Contractor commitment and employee
(AEC) to protect health and promote Employees,’’ establishes requirements involvement, (2) worksite analysis, (3)
safety during the performance of for a worker safety and health program. hazard prevention and control, and (4)
activities under the AEA. See Sec. A DOE contractor with DOE Order training).
31a.(5) of AEA, 42 U.S.C. 2051(a)(5); 440.1A in its contract must have a DOE Order 440.1A specifically
Sec. 161b. of AEA, 42 U.S.C 2201(b); worker protection program as stipulated requires contractors to implement a
Sec. 161i.(3) of AEA, 42 U.S.C. by the Contractor Requirements written worker protection program that
2201(i)(3); and Sec. 161p. of AEA, 42 Document (CRD) that accompanies the describes site-specific methods for
U.S.C. 2201(p). The ERA abolished the order. DOE applies these requirements complying with the requirements of the
AEC and replaced it with the Nuclear through the incorporation of the CRD order; establish written policies, goals,
Regulatory Commission (NRC), which into relevant DOE contracts. In and objectives to provide a focus for,
became responsible for the licensing of accordance with the CRD, contractors and foster continual improvement of,
commercial nuclear activities, and the must implement a written worker their worker protection programs; and
Energy Research and Development protection program that integrates the identify existing and potential
Administration (ERDA), which became performance-based requirements workplace hazards, evaluate associated
responsible for the other functions of outlined in the CRD. A series of risks, and implement appropriate risk-
the AEC under the AEA, as well as implementation guides and technical based controls. In addition, the order
several nonnuclear functions. The ERA standards are available to assist DOE establishes (1) worker rights and
authorized ERDA to use the regulatory contractors in developing and responsibilities that are consistent with
authority under the AEA to carry out its implementing a worker protection those afforded to private industry
nuclear and nonnuclear function, program that will meet the intent of the employees through Federal regulations
including those functions that might performance-based requirements. and (2) baseline safety and health
become vested in ERDA in the future. Also, DOE contractors are required to requirements in specific technical
See Sec. 105(a) of ERA, 42 U.S.C. implement a worker safety and health disciplines.
5815(a); and Sec. 107 of ERA, 42 U.S.C. program that is consistent with the The order encompasses all worker
5817. The DOEOA transferred the ‘‘Integration of Environment, Health and protection disciplines, including
functions and authorities of ERDA to Safety into Work Planning and occupational safety, industrial hygiene,
DOE. See Sec. 301(a) of DOEOA, 42 Execution’’ clause set forth in the DOE fire protection (worker protection
aspects only), construction safety, (7) Operations authorization. The existing and effective comprehensive
explosives safety, contractor conditions and requirements to be worker protection programs that have
occupational medical care, pressure satisfied for operations to be initiated been implemented by contractors at
safety, firearms safety, and motor and conducted must be clearly DOE sites; (2) to minimize the burden
vehicle safety. Where necessary, the established and agreed-upon. on DOE contractors by clarifying that
order cross-references related elements The five core functions of ISM are: (1) contractors need not establish
of other orders—such as training, Define the scope of work; (2) identify redundant worker protection programs
accident investigation, and safety and and analyze hazards associated with the to comply with the proposed rule; and
health reporting orders—without work; (3) develop and implement (3) to build on a successful program,
duplicating their respective hazard controls; (4) perform work given that DOE Order 440.1A has been
requirements. within controls; and (5) provide successfully and effectively
Overview of Integrated Safety feedback on adequacy of controls and implemented by DOE contractors for
Management (ISM). A major concept of continue to improve safety management. close to a decade. DOE believes that
ISM is the integration of safety Consistency with DOE Order 440.1A basing this rule on DOE Order 440.1A
awareness and good practices into all and Integrated System Management. is consistent with section 234C of the
aspects of work conducted at DOE. This final rule builds on existing NDAA which directs the Department to
Simply stated, work should be contract practices and processes to promulgate regulations which provide a
conducted in such a manner that achieve safe and healthful workplaces. level of protection that is ‘‘substantially
protects workers and other people, and The rule is intended to be equivalent to the level of protection
does not cause harm to the complementary to DOE Order 440.1A currently provided to’’ these workers
environment. Safety is an integral part and ISM. Accordingly, DOE expects (41 U.S.C. 2282c(a)(1)). Consistent with
of each job, not a stand-alone program. contractors to comply with the DOE Order 440.1A, this final rule
ISM has seven guiding principles and requirements of this rule in a manner establishes requirements for an effective
five core functions. The seven guiding that takes advantage of work already worker safety and health program that
principles of ISM are: done as part of DOE Order 440.1A and will reduce or prevent injuries,
(1) Line management responsibility. ISM and to minimize duplicative or illnesses, and accidental losses by
Line management is directly responsible otherwise unnecessary work. providing DOE contractors and their
for the protection of the public, the As a general matter, DOE expects that, workers with a safe and healthful
workers, and the environment. As a if contractors at a DOE site have fulfilled workplace.
complement to line management, the their contractual responsibilities for In basing the final rule on DOE Order
Office of Environment, Safety and DOE Order 440.1A and ISM properly, 440.1A, DOE intends to take advantage
Health (EH) provides safety policy, little, if any, additional work will be of the existing series of implementation
enforcement, and independent oversight necessary to implement the written guides developed to assist DOE
functions. worker safety and health program contractors in implementing the
(2) Clear roles and responsibilities. required by this regulation. Contractors provisions of DOE Order 440.1A.
Clear and unambiguous lines of should undertake new analyses and Shortly after publication of this rule,
authority and responsibility for ensuring develop new documents only to the DOE expects to publish updated
safety must be established and extent existing analyses and documents implementation guides revised to
maintained at all organized levels are not sufficient for purposes of this specifically address the provisions of
within the Department and its regulation. In determining the the final rule. Consistent with their use
contractors. allowability of costs incurred by under DOE Order 440.1A, these updated
(3) Competence commensurate with contractors to develop approved worker guides will provide supplemental
the responsibility. Personnel must safety and health programs, the information and describe acceptable
possess the experience, knowledge, Department will consider whether the methods for implementing the
skills, and abilities that are necessary to amount and nature of a contractor’s performance-based requirements of the
discharge their responsibilities. expenditures are necessary and rule. DOE contractors are free to use the
(4) Balanced priorities. Resources reasonable in light of the fact that the guidance provided in these non-
must be effectively allocated to address contractor has an approved ISM system mandatory documents or to develop and
safety, programmatic, and operational in place. implement their own unique methods
considerations. Protecting the public, for compliance, provided that these
the workers, and the environment must III. Overview of the Final Rule
methods afford workers a level of
be a priority whenever activities are This final rule codifies the protection equal to or greater than that
planned and performed. Department’s worker protection which would satisfy the rule’s
(5) Identification of safety standards program requirements established in requirements. DOE believes that the
and requirements. Before work is DOE Order 440.1A, ‘‘Worker Protection availability of these updated guides will
performed, the associated hazards must Management for DOE Federal and also further assist in ensuring a seamless
be evaluated and an agreed-upon set of Contractor Employees.’’ Consistent with transition from coverage under DOE
safety standards and requirements must the intent of Congress, DOE Order Order 440.1A to regulation under 10
be established which, if properly 440.1A forms the basis for the rule’s CFR part 851.
implemented, will provide adequate substantive requirements. The To ensure appropriate enforcement of
assurance that the public, the workers, Conference Committee for the NDAA the worker safety and health program
and the environment are protected from recognized that contractors currently the rule also establishes requirements
adverse consequences. operate under this order, ‘‘which and procedures for investigating the
(6) Hazard control tailored to work provides an adequate level of safety.’’ nature and extent of a violation,
being performed. Administrative and (Conference Report 107–772, November determining whether a violation has
engineering controls to prevent and 12, 2002, at 797.) occurred, and imposing an appropriate
mitigate hazards must be tailored to the The Department has structured the remedy.
work being performed and the final rule this way for three main The Department has made changes in
associated hazards. reasons: (1) To take advantage of this final rule after considering the
concerns of the commenters with the more closely reflect the requirements of applicability of the rule, defines terms
supplemental notice of proposed DOE Order 440.1A. that are critical to the rule’s application
rulemaking published in the Federal (4) The final rule recognizes the value and implementation, and establishes
Register on January 26, 2005 (70 FR of a central technical authority and the contractor responsibilities for executing
3812). The principal changes are as importance of senior DOE management the rule. Subpart B establishes program
follows: involvement. The Assistant Secretary requirements to develop and maintain a
(1) The final rule codifies key worker for Environment, Safety and Health has worker safety and health program and to
safety and health standards from DOE played a central role in the development perform safety and health activities in
Order 440.1A with which contractors of the final rule and will continue to accordance with the approved program.
must comply. play a central role in its implementation Subpart C establishes provisions that
(2) The final rule establishes a formal and enforcement. In addition to focus on management responsibilities
variance process that requires approval providing technical guidance and and worker rights, protecting the worker
by the Under Secretary with line assistance, the Assistant Secretary is from the effects of safety and health
management responsibility for the responsible for recommending to the hazards by requiring hazard
contractor that is requesting the Under Secretary whether to grant or identification and assessment, hazard
variance, after considering the deny a variance. The Office of Price-
prevention and abatement, specific
recommendations of the Assistant Anderson Enforcement, which reports
regulatory requirements, functional
Secretary for Environment Safety and to the Assistant Secretary, is responsible
areas provisions, recordkeeping and
Health. The rule adds detailed for investigating potential violations and
program evaluations. Subpart D
procedures in (Subpart D) whereby a deciding whether to take certain
establishes the criteria and procedures
contractor can obtain a variance from a enforcement actions against the
for requesting a variance. Subpart E
specific worker safety and health contractor, including the imposition of
establishes the enforcement process.
standard or a portion of the standard. civil penalties for all facilities. The final
These procedures will ensure that rule makes the Under Secretary with To ensure that the Department
variances are only granted where line management responsibility for a captured the entire list of contractor
warranted and where an equivalent contractor responsible for deciding requirements specified in DOE Order
level of protection is provided through whether to grant a variance to the 440.1A, the Department developed a
other means. contractor. ‘‘crosswalk’’ of the requirements in the
(3) The final rule establishes updates The provisions of the rule are current DOE order and the final
to functional areas. These updates are presented in five main subparts. Subpart provisions of 10 CFR part 851. See Table
intended to ensure the function areas A describes the scope, purpose, and 1.
TABLE 1.—CROSSWALK OF DOE ORDER 4401.1A REQUIREMENTS AND 10 CFR 851 FINAL RULE REQUIREMENTS
DOE order 440.1A requirements Corresponding 10 CFR 851 provisions
1. Objective ............................................................................................... .1 Purpose

3.b. Applicability ........................................................................................ .1 Scope
.
3.c. Exclusions .......................................................................................... .2 Exclusions
Attachment 2—Contractor Requirements Document
The contractor shall comply with the requirements below; however, .24 Functional areas.
the requirements for the specific functional areas that are addressed
in paragraphs 14 through 22 apply only if the contractor is involved
in these activities.
1. Implement a written worker protection program that: .......................... .11(a), .12 Preparation and submission of worker safety and health
program Implementation.
1.a. Provide a place of employment free from recognized hazards that .10(a)(1) General requirements.
are causing or are likely to cause death or serious physical harm to
employees; and.
1.b. Integrates all requirements contained in this attachment and other .11(a)(3) (ii) Preparation and submission of worker safety and health
related site-specific worker protection activities. program.
2. Establish written policy, goals, and objectives for the worker protec- .20(a)(1) Management responsibilities.
tion program.
3. Use qualified worker protection staff to direct and manage the work- .20(a)(2) Management responsibilities.
er protection program.
4. Assign worker protection responsibilities, evaluate personnel per- .20(a)(3) Management responsibilities.
formance, and hold personnel accountable for worker protection per-
formance.
5. Encourage employee involvement in the development of program .20(a)(4) Management responsibilities.
goals, objective, and performance measures and in the identification
and control of hazards in the workplace.
6. Provide workers the right, without reprisal, to: .................................... .20(a)(6) Management responsibilities.
6.a. Accompany DOE worker protection personnel during workplace in- .20(b)(5) Worker rights.
spections;.
6.b. Participate in activities provided for herein on official time; ............. .20(b)(1) Worker rights.
6.c. Express concerns related to worker protection; ................................ .20(b)(7) Worker rights.
TABLE 1.—CROSSWALK OF DOE ORDER 4401.1A REQUIREMENTS AND 10 CFR 851 FINAL RULE REQUIREMENTS—
Continued
6.d. Decline to perform an assigned task because of a reasonable be- .20(b)(8) Worker rights.
lief that, under the circumstances, the task poses an imminent risk of
death or serious bodily harm to that individual, coupled with a rea-
sonable belief that there is insufficient time to seek effective redress
through the normal hazard reporting and abatement procedures es-
tablished in accordance with the requirements herein;.
6e. Have access to DOE worker protection publications, DOE-pre- .20(b)(2) (i)–(ii) Worker rights.
scribed standards, and the organization’s own protection standards
or procedures applicable to the workplace;.
6.f. Observe monitoring or measuring of hazardous agents and have .20(b)(4) Worker rights.
access to the results of exposure monitoring;.
6.g. Be notified when monitoring results indicate they were over- .20(b)(3) Worker rights
exposed to hazardous materials; and.
6.h. Receive results of inspections and accident investigations upon re- .20(b)(6) Worker rights
quest.
7. Implement procedures to allow workers, through their supervisors, to .20(a)(9) Management responsibilities.
stop work when they discover employee exposures to imminent dan-
ger conditions or other serious hazards. The procedure shall ensure
that any stop work authority is exercised in a justifiable and respon-
sible manner.
8. Inform workers of their rights and responsibilities by appropriate .20(a)(10) Management responsibilities.
means, including posting the appropriate DOE Worker Protection
Poster in the workplace where it is accessible to all workers.
9. Identify existing and potential workplace hazards and evaluate the .21(a) Hazard identification and assessment.
risk of associated worker injury and illness.
9.a. Analyze or review: (1) Designs for new facilities and modifications .21(a)(4)–(5) Hazard identification and assessment.
to existing facilities and equipment; (2) Operations and procedures;
and (3) Equipment, product and service needs.
9.b. Assess worker exposure to chemical, physical, biological, or ergo- .21(a)(1)–(3) Hazard identification and assessment [Moved to guid-
nomic hazards through appropriate workplace monitoring (including ance document.]
personal, area, wipe, and bulk sampling); biological monitoring; and
observation. Monitoring results shall be recorded [Documentation
shall describe the tasks and locations where monitoring occurred,
identify workers monitored or represented by the monitoring, and
identify the sampling methods and durations, control measures in
place during monitoring (including the use of personal protective
equipment), and any other factors that may have affected sampling
results.].
9.c. Evaluate workplaces and activities (accomplished routinely by .21(a)(5) Hazard identification and assessment.
workers, supervisors, and managers and periodically by qualified
worker protection professionals).
9.d. Report and investigate accidents, injuries and illnesses and ana- .26(d) Recordkeeping and reporting.
lyze related data for trends and lessons learned (reference DOE
Order 210.1).
10. Implement a hazard control prevention/abatement process to en- .22(a) Hazard prevention and abatement.
sure that all identified hazards are managed through final abatement
or control.
10.a. For hazards identified either in the facility design or during the .22(a)(1) Hazard prevention and abatement.
development of procedures, control shall be incorporated in the ap-
propriate facility design or procedure.
10.b. For existing hazards identified in the workplace, abatement ac- .22(a)(2) (i), (ii), & (iii) Hazard prevention and abatement.
tions prioritized according to risk to the worker shall be promptly im-
plemented, interim protective measures shall be implemented pend-
ing final abatement, and workers shall be protected immediately from
imminent danger conditions.
10.c. Hazards shall be addressed when selecting or purchasing equip- .22(c) Hazard prevention and abatement.
ment, products, and services.
10.d. Hazard control methods shall be selected based on the following .22(b)(2)–(4) Hazard prevention and abatement.
hierarchy: (1) Engineering control (2) Work practices and administra-
tive controls that limit worker exposure (3) Personal protective equip-
ment.
11. Provide workers, supervisors, managers, visitors, and worker pro- .25 Information and training.
tection professionals with worker protection training.
12. Comply with the following worker protection requirements: .............. .23(a) Safety and health standards.
12.a. Title 29 Code of Federal Regulations (CFR), Part 1910, ‘‘Occu- .23(a)(3) Safety and health standards.
pational Safety and Health Standards’’.
12.b. Title 29 CFR, Part 1915, ‘‘Shipyard Employment’’ ......................... .23(a)(4) Safety and health standards.
12.c. Title 29 CFR, Part 1917, ‘‘Marine Terminals’’ ................................. .23(a)(5) Safety and health standards.
12.d. Title 29 CFR, Part 1918, ‘‘Safety and Health Regulations for .23(a)(6) Safety and health standards.
Longshoring’’.
TABLE 1.—CROSSWALK OF DOE ORDER 4401.1A REQUIREMENTS AND 10 CFR 851 FINAL RULE REQUIREMENTS—
Continued
12.e. Title 29 CFR, Part 1926, ‘‘Safety and Health Regulations for Con- .23(a)(7) Safety and health standards.
struction’’.
12.f. Title 29 CFR, Part 1928, ‘‘Occupational Safety and Health Stand- .23(a)(8) Safety and health standards.
ards for Agriculture’’.
12.g. American Conference of Governmental Industrial Hygienists .23(a)(9) Safety and health standards.
(ACGIH), ‘‘Threshold Limit Values for Chemical Substances and
Physical Agents and Biological Exposure Indices’’ when the ACGIH
Threshold Limit Values (TLVs) are lower (more protective) than per-
missible exposure limits in 29 CFR 1910. When the ACGIH TLVs are
used as exposure limits, contractors must nonetheless comply with
the other provisions of any applicable expanded health standard
found in 29 CFR 1910.
12.h. American National Standards Institute (ANSI) Z136.1, ‘‘Safe Use .23(a)(11) Safety and health standards.
of Lasers’’.
12.i. ANSI Z88.2, ‘‘American National Standard Practices for Res- .23(a)(10) Safety and health standards.
piratory Protection’’.
12.j. ANSI Z49.1, ‘‘Safety in Welding, Cutting and Allied Processes,’’ .23(a)(12) Safety and health standards.
sections 4.3 and E4.3 (of the 1994 edition or equivalent sections of
subsequent editions).
12.k. National Fire Protection Association (NFPA) 70, ‘‘National Elec- .23(a)(14) Safety and health standards.
trical Codes’’.
12.l. NFPA 70E, ‘‘Electrical Safety in the Workplace’’ ............................. .23(a)(15) Safety and health standards.
13. Ensure that subcontractors performing work on DOE-owned or
-leased facilities comply with this Contractor Requirements Document
and the contractor’s own site worker protection standards (where ap-
plicable).
14. Construction Safety ............................................................................ Appendix A section 1.
15. Fire Protection .................................................................................... Appendix A section 2.
16. Firearms Safety .................................................................................. Appendix A section 5.
17. Explosives Safety ............................................................................... Appendix A section 3.
18. Industrial Hygiene ............................................................................... Appendix A section 6.
19. Occupational Medicine ....................................................................... Appendix A section 8.
20. Pressure Safety .................................................................................. Appendix A section 4.
21. Motor Vehicle Safety .......................................................................... Appendix A section 9.
22. Suspect and Counterfeit Item (S/CI) Controls ................................... Section moved to DOE Order 414.1C, Quality Assurance (June 17,
2005).
Many provisions have been notice of proposed rulemaking. To aid the final rule to the corresponding
reformatted and renumbered in this in tracking the provisions of both sections in the supplemental notice of
final rule, creating differences between documents, the Department has proposed rulemaking. See Table 2.
it and the published supplemental included a table comparing sections in
TABLE 2.—COMPARISON OF FINAL 10 CFR 851 RULE SECTIONS WITH THE SUPPLEMENTAL NOTICE OF PROPOSED
RULEMAKING (SNOPR)
Final rule section Corresponding supplemental proposal section
PART 850—Chronic Beryllium Disease Prevention Program
Authority .................................................................................................... Notice of Proposed Rulemaking December 8, 2003, N/A.

850.1 Scope ........................................................................................... Notice of Proposed Rulemaking December 8, 2003, N/A.
850.4 Enforcement ................................................................................. Notice of Proposed Rulemaking December 8, 2003, N/A.
PART 851—Worker Safety and Health Program
Subpart A—General Provisions Subpart A—General Provisions
851.1 Scope and purpose ...................................................................... 851.1 Scope and exclusions.

851.2 Purpose.
851.2 Exclusions .................................................................................... 851.1 Scope and exclusions.
851.3 Definitions .................................................................................... 851.3 Definitions.

851.4 Compliance Order ........................................................................ 851.5 Compliance Order.
851.5 Enforcement ................................................................................. 851.9 Enforcement.
851.6 Petitions for generally applicable rulemaking .............................. 851.6 Interpretations.
851.7 Requests for a binding interpretive ruling .................................... 851.6 Interpretations.
851.8 Informal requests for information ................................................. 851.6 Interpretations.
TABLE 2.—COMPARISON OF FINAL 10 CFR 851 RULE SECTIONS WITH THE SUPPLEMENTAL NOTICE OF PROPOSED
RULEMAKING (SNOPR)—Continued
Final rule section Corresponding supplemental proposal section
Subpart B—Program Requirements Subpart A—General Provisions

Subpart B—Worker Safety and Health Program
851.10 General requirements ................................................................ 851.4 General rule.

851.100 Worker safety and health program.
851.11 Development and approval of the worker safety and health 851.101 Approval and maintenance of the worker safety and health
program. program.
851.12 Implementation ........................................................................... 851.100 Worker safety and health program.
851.13 Compliance ................................................................................ 851.8 Compliance.
Subpart C—Specific Program Requirements Subpart A—General Provisions

Subpart B—Worker Safety and Health Program
Subpart C—Safety and Health Requirements
851.20 Management responsibilities and worker rights and respon- 851.10 Worker rights.
sibilities.
851.21 Hazard identification and assessment ....................................... 851.100 Worker safety and health program.
851.22 Hazard prevention and abatement ............................................ 851.100 Worker safety and health program.
851.23 Workplace safety and health standards .................................... 851.200 Worker safety and health requirements.
851.201 Worker safety and health standards.
851.24 Functional areas ........................................................................ 851.200 Worker safety and health requirements.
851.25 Training and information ............................................................ 851.100 Worker safety and health program.
851.26 Recordkeeping and reporting .................................................... 851.7 Information and records.
851.27 Incorporation by reference.
Subpart D—Variances Subpart D—Exemption Relief
851.30 Consideration of variances ........................................................ 851.300 Exemptions.

851.31 Variance process ....................................................................... 851.301 Exemption criteria.
851.32 Action on variance request ........................................................ 851.300 Exemptions.
851.33 Terms and conditions ................................................................ 851.302 Terms and conditions.
851.34 Requests for conferences.
Subpart E—Enforcement Process Subpart E—Enforcement Process
851.40 Investigations and inspections ................................................... 851.400 Investigations and inspections.

851.41 Settlement.
851.42 Preliminary notice of violation .................................................... 851.402 Preliminary notice of violation.
851.43 Final notice of violation .............................................................. 851.403 Final notice of violation.
851.44 Administrative appeal ................................................................. 851.404 Administrative appeal.
851.45 Direction to NNSA contractors ................................................... 851.405 Direction to NNSA contractors.
APPENDIX A TO PART 851—WORKER SAFETY AND HEALTH Subpart C—Safety and Health Requirements
FUNCTIONAL AREAS. (Sections 851.202 to 851.210)
A.1 Construction safety .......................................................................... 851.202 Construction safety.

A.2 Fire protection .................................................................................. 851.203 Fire protection.
A.3 Explosives safety ............................................................................. 851.204 Explosives safety.
A.4 Pressure safety ................................................................................ 851.205 Pressure retaining component safety.
A.5 Firearms safety ................................................................................ 851.208 Firearms safety.
A.6 Industrial hygiene ............................................................................ 851.209 Industrial hygiene.
A.7 Biological safety ............................................................................... 851.207 Biological safety.
A.8 Occupational medicine .................................................................... 851.210 Occupational medicine.
A.9 Motor vehicle safety ........................................................................ 851.206 Motor vehicle safety.
A.10 Electrical safety.
A.11 Nanotechnology—Reserved.
A.12 Workplace Violence Prevention—Reserved.
APPENDIX B TO PART 851—GENERAL STATEMENT OF APPENDIX A TO PART 851—GENERAL STATEMENT OF

ENFORCEMENT POLICY ENFORCEMENT POLICY
IV. Section-by-Section Discussion of material for some final rule provisions this section. However, some non-
Comments and Rule Provisions in order to provide interpretive substantive changes, such as
guidance to DOE contractors that must renumbering of paragraphs and minor
This section of the Supplementary
Information responds to significant comply with this rule. All substantive changes clarifying the meanings of rule
comments on specific proposed rule changes from the supplemental notice of provisions are not discussed.
provisions. It contains explanatory proposed rulemaking are explained in
DOE has determined that the during the pubic comment period (EPA), OSHA, DOE, Nuclear Regulatory
requirements set forth in this rule are including those comments received Commission (NRC), Defense Nuclear
those which are necessary to provide a from health and safety professionals Facilities Safety Board (DNFSB), Price-
safe and healthful workplace for DOE from other organizations. Anderson Amendment Act (PAAA),
contractors and their workers. Two commenters (Ex. 44, 60) urged DOE’s Office of Independent Oversight
The majority of the comments DOE to begin the process of staffing, and Performance Assurance, etc.,
received during the public comment training, and setting forth resource compliance groups to form an ‘‘Agency
period addressed specific provisions or requirements in order to implement this of Oversight and Compliance’’ to
subparts (e.g., scope and exclusions, rule in a timely manner. DOE notes, provide coordinated, synergistic, and
enforcement process, program however, that the rule is based largely comprehensive oversight. Both
requirements, exemption process, and on the provisions of DOE Order 440.1A. suggestions, however, go beyond the
consensus standards) of the As a result, existing staff within DOE statutory mandate of section 3173 of the
supplemental proposed rule. Each of will be capable of performing NDAA and the scope of this rulemaking
these comments is discussed in detail Departmental actions necessary to effort. Moreover, the Department lacks
below in the discussion of the implement the rule. the authority and jurisdiction to
corresponding section of the rule. One commenter (Ex. 37) asserted that implement these suggestions.
Several commenters, however, the health and safety framework
expressed more general concerns established under the rule is unlike the A. Subpart A—General Provisions
regarding the entire proposed rule. For health and safety provisions applicable Section 851.1—Scope and Purpose
instance, a few commenters (Exs. 20, 27, to all other facilities in the country that
48) expressed concern regarding a are subject to OSHA jurisdiction. This The worker safety and health program
perceived lack of detail in the proposed commenter felt that such a discrepancy required by this rule establishes the
rule. One of these commenter (Ex. 20) would discourage talented health and framework for a comprehensive program
felt that terms such as ‘‘reasonable,’’ safety professionals from working at that will reduce or prevent injuries,
‘‘any,’’ ‘‘all,’’ ‘‘significant,’’ ‘‘adequate,’’ DOE facilities because of the prospect of illnesses, and accidental losses by
‘‘near miss,’’ ‘‘potential,’’ learning a regulatory scheme that does providing DOE contractors and their
‘‘comprehensive,’’ and ‘‘general’’ used not apply elsewhere. The commenter workers with a safe and healthful
throughout the rule were too subjective argued that ‘‘the best and the brightest’’ workplace. DOE has structured the rule
to ensure consistency in contractor health and safety professionals would this way for two main reasons: (1) To
programs and enforcement. Another be hoping to acquire transferable skills. take advantage of existing and effective
commenter (Exs. 48) believed that the DOE disagrees with this commenter. comprehensive worker protection
proposed rule was not sufficiently The provisions of the final rule stem programs that have been implemented
developed and many processes and directly from DOE Order 440.1A which at DOE facilities and (2) to minimize the
required guidance materials have either was modeled after OSHA’s Safety and burden on contractors by clarifying that
not yet been developed or have not been Health Program Management they need not establish redundant
adequately described. This commenter Guidelines. OSHA derived these worker protection programs to protect
also felt that the proposed regulation as guidelines from the safety and health workers from occupational safety and
currently written would represent a program of private industry firms with health hazards.
shift in safety emphasis from the the best safety and health performance Section 851.1(a) establishes the scope
positive influence, as described by the records. OSHA encourages all of this regulation. The worker safety and
Integrated Safety Management System employers to implement these health requirements in this part govern
(ISMS), to a negative, enforcement- guidelines and recognizes the the conduct of activities by DOE
based culture. The commenter accomplishments of the best performers contractors at DOE sites. As clarified in
recommended that DOE consult with in safety and health through its the definition of ‘‘contractor’’ (section
safety and health professionals within Voluntary Protection Program (VPP). As 851.3), DOE’s intent is that the
DOE, in other government agencies such a result, DOE believes that the safety contractors covered under this rule
as OSHA, and in private industry when and health program required under this include any entity under contract to
preparing the final rule. The third rule will continue to promote safety and perform activities at a DOE site in
commenter (Ex. 27) argued that the health excellence among DOE furtherance of a DOE mission, including
‘‘level of protection’’ required under contractors and will in fact attract ‘‘well subcontractors at any tier.
section 3173 of the NDAA must be qualified’’ safety and health One commenter (Ex. 6) suggested the
defined in the rule to allow contractor professionals. rule should apply only to defense
compliance. One commenter (Ex. 6) expressed nuclear facilities. DOE notes that the
DOE has carefully reviewed the rule concern that the proposed rule did not legislation, section 3173 of the NDAA is
in light of these comments and other respond to past Inspector General (IG) not limited to defense nuclear facilities.
more specific comments received during and Government Accountability Office A few commenters (Exs. 28, 45, 51)
the public comment period and has (GAO) reports recommending that DOE observed that section 3173 of the NDAA
attempted to address those requesting National Laboratories transition to only applies to contractors covered by
clarification or further detail through external OSHA regulation. The agreements of indemnification under
either revisions to the text of the final commenter recommended that DOE section 170d. of the AEA. The
rule or through clarification in this compare the proposed rule with commenters suggested that part 851
preamble discussion. DOE also intends previous external IG and GAO reports should not exceed this statutory
to publish appropriate guidance regarding regulation of DOE National mandate and should only apply to such
materials to further assist contractors Laboratories. This same commenter also contractors. Presumably since
with implementation. DOE notes that asserted that there is a need for a ‘‘contractual enforcement under
this final rule is the result of extensive centralized enforcement (compliance) proposed rule section 851.4(b) would
coordination within the DOE safety and agency, and suggested that DOE follow only be available against prime
health community and the careful the Great Britain model and combine contractors and not subcontractors,’’
consideration of all comments received the Environmental Protection Agency these commenters argued that, ‘‘the rule
should only apply to contractors deleting ‘‘subcontractors’’ from the DOE sees no cause for concern,
covered by agreement of applicability or reducing the impact of however, since both programs stem from
indemnification,’’ amending the Nuclear the rule on subcontractors. DOE Order 440.1A, and there has been
Hazards Indemnity Agreement (NHIA) Subcontractors must implement the no need for such conflict resolution
in order to put contractors on notice of requirements of the rule for covered provisions under that order. DOE
civil and contract penalties for violation workplaces for which they are believes both programs are consistent
of DOE worker safety and health rules. responsible and, in other situations, act with and complementary to each other.
Although DOE recognizes that section consistently with applicable regulations One commenter (Ex. 29) raised the
234C of the AEA only mandates and worker safety and health standards. question of whether DOE would
contractors covered by agreements of One commenter (Ex. 39) suggested consider ‘‘exempting’’ management and
indemnification, DOE has decided to that the rule could be interpreted as operating contractors from civil
cover all of its contractors to ensure applying to employees of DOE tenant penalties for violations committed by
consistency in the protection of workers organizations performing work on a other site contractors. DOE notes that
throughout the DOE complex. As DOE site. The commenter observed that the rule requires identification,
described in Section II of this contractors cannot impose or enforce evaluation and abatement of identified
Supplementary Information, DOE has the worker safety and health hazards, so that contractors are aware of
broad authority to regulate worker safety requirements of this rule on tenants if the hazards in the covered workplace
and health with respect to nuclear and they do not maintain a contractual and respond appropriately. In addition,
nonnuclear functions, and it is not relationship with them. DOE does not future enforcement guidance
limited to the authority in section 234C. intend the rule to cover persons who are supplements will provide voluntary
While the regulations cover all not performing work in furtherance of a reporting thresholds. If the Office of
contractors, the authority to impose DOE mission. To clarify this intent, DOE Price-Anderson Enforcement becomes
civil penalties is limited to those has revised the definitions of ‘‘covered involved with a specific
covered by agreements of indemnity. workplace’’ and ‘‘contractor’’ to limit noncompliance, they will evaluate the
Several commenters (Exs. 39, 49, 61) their scope to situations in which work circumstances surrounding the
questioned who would be held is being performed in furtherance of a noncompliance, determine
responsible for worker safety and health DOE mission. Thus the rule does not responsibility, and take appropriate
on DOE-leased sites in those areas apply to a person restocking a vending enforcement actions in accordance with
outside the control of the contractor but machine. Likewise, the rule does not provisions of this rule. The process of
where the contractor may perform work. apply to DOE tenant organizations, discovery and evaluation of evidence
One commenter (Ex. 49) suggested that except to the extent it had a contractual has been used in the enforcement of
under the rule, facility worker safety obligation to perform work in nuclear safety requirements and is
and health requirements should not furtherance of a DOE mission. conducted in accordance with the rule
apply to leased facilities to the extent One commenter (Ex. 39) sought of law. As a result, there is no need for
they are regulated under State or local clarification of whether ‘‘work done on exemptions from penalties as requested
regulations. However, the commenter public or private property off the by the commenter.
argued, the rule’s program requirements reservation by a DOE Prime Contractor’’ One commenter (Ex. 40)
should continue to apply to DOE is covered under the rule. The rule recommended broadening the
contractors at these leased facilities. applies to work performed at a DOE site. applicability of the rule to include
DOE intends for all contractors on a DOE has clarified in the definition of construction workers employed by
work site to establish and maintain a ‘‘DOE site’’ to include a location that subcontractors that come onto DOE sites
worker safety and health program for DOE controls through exercise of its for limited periods of time to perform
the workplaces for which each AEA authority, even if DOE does not maintenance, renovation, repair and
contractor is responsible as required in own or lease the location. If DOE does demolition tasks. DOE notes that
final rule section 851.11(a)(2)(ii). In not exercise control under the AEA, Appendix A section 1, ‘‘Construction
addition, contractors on a site must section 4(b)(2) exemption of the OSHA Safety’’ covers construction contractors
coordinate with other contractors Act would not apply and OSHA would (including subcontractors) and their
responsible for work at the covered be responsible for regulating safety and employees in situations suggested by
workplaces to ensure that there are clear health. DOE has also clarified the scope exhibit 40.
roles, responsibilities and procedures section to make clear that off-site Section 851.1(b) establishes the
that will ensure the safety and health of transportation is not covered by the purpose of the rule, which is to
workers on multi-contractor workplaces. rule. delineate the requirements and
DOE further intends to develop One commenter (Ex. 29) sought procedures associated with the worker
Enforcement Guidance Supplements clarification of whether the rule would safety and health program. Section
based in part on OSHA’s multi- apply to Federal employees at a covered 851.1(b)(1) clarifies that the rule
employer worksite policies to guide worksite. DOE notes that the rule will establishes the requirements for an
enforcement efforts on multi-employer not apply to Federal employees since effective worker safety and health
worksites. DOE notes that final rule Federal employees are covered under program, which will reduce or prevent
section 851.1(a) clarifies that the rule OSHA standards at 29 CFR 1960 (Basic injuries, illnesses, and accidental losses
applies to the conduct of contractor Program Elements for Federal Employee by providing workers with a safe and
activities at DOE sites, and section 851.3 Occupational Safety and Health healthful workplace.
clarifies that DOE sites include not only Programs and Related Matters) as well Two commenters (Exs. 36, 42)
locations leased or owned by DOE, but as Executive Order 12196 (Occupational contended that the purpose of the
also locations controlled by DOE Safety and Health Programs for Federal proposed rule—is to provide
through the exercise of its regulatory Employees). Another commenter (Ex. ‘‘reasonable assurance’’ that workers are
authority. 20) suggested the rule include ‘‘adequately protected’’ from identified
Two commenters (Exs. 15, 37) provisions for resolving conflicts hazards—is distinctly different from
expressed concern over application of between Part 851 and the Federal supplemental proposed rule section
the rule to subcontractors and favored occupational safety and health program. 851.4(a) which requires a contractor to
‘‘ensure’’ that the workplace is ‘‘free achieve the objectives in the OSHA Act provisions outlined in the specified
from’’ recognized hazards. The and DOE Order 440.1 to have contract.
commenters expressed concern that the workplaces free from hazards causing or DOE received numerous comments on
phrase ‘‘free from recognized hazards’’ likely to cause serious bodily harm or the exclusion clause for work conducted
differed from ‘‘adequate protection,’’ death. DOE views these objectives as at OSHA-regulated DOE sites. Several
and favored use of the term ‘‘reasonable complementary and has rewritten the commenters (Exs. 15, 16, 25, 29, 42, 49)
assurance’’ as an appropriate and general rule to clearly identify both proposed that facilities transferred to
achievable standard. DOE notes, the objectives. OSHA jurisdiction in the future should
reference to ‘‘adequately protected’’ is to Section 851.1(b)(2) clarifies that the also be covered under the OSHA
emphasize that the rule is intended to rule establishes appropriate provisions exclusion of the rule. DOE
fulfill DOE’s responsibilities under the for investigating the nature and extent of acknowledges the commenters
AEA. The reference to ‘‘reasonable a violation of the requirements, for recommendation and has reworded this
assurance’’ is to identify the standard to determining whether a violation of a provision in the final rule to clarify that
be achieved. In revising the rule, DOE requirement has occurred, and for the rule does not apply to work at a DOE
has moved these references from the imposing an appropriate remedy. DOE site that is regulated by OSHA (i.e., as
section on purpose to the section on the received no comments on the soon as a site is transferred to OSHA,
general rule and specifically to the corresponding provision of the work on that site no longer falls within
subsection on the worker safety and supplemental proposed rule during the the scope of the rule).
health program. public comment period. One commenter (Ex. 5) questioned the
One commenter (Ex. 16) noted that appropriateness of the OSHA exclusion
Section 851.2—Exclusions and pointed out that the exclusion of
the phrase ‘‘a contractor responsible for
a covered workplace,’’ which occurs in As in the supplemental proposal, contractors regulated by OSHA was
several proposed rule sections, could section 851.2 continues to emphasize ‘‘inherently contradictory,’’ and asserted
result in confusion on sites where DOE that these regulations apply to activities that ‘‘DOE’s subcontractors have
uses multiple contractors. The performed by DOE contractors at DOE flowdown of PAAA liability protection
commenter recommended replacing the sites. Two commenters (Exs.13, 39) when they need to work in a nuclear
phrase with the following language, ‘‘a sought clarification that transportation facility. Additionally DOE
contractor responsible for activities in a was not covered under this rule. As subcontractors are the responsibility of
covered workplace.’’ DOE acknowledges discussed previously, ‘‘scope’’ section the prime contractor (per contract) but
the commenter’s concern. The purpose (851.1) of the final rule has been maintain their own OSHA 300 log
section is revised in the final rule and modified to make it clear that because they are required to comply
no longer makes reference to ‘‘a transportation to or from a DOE site is with OSHA regulations (per the
contractor responsible for a covered not covered by the rule. industry in which they work, not
workplace.’’ DOE also notes that Section 4(b)(1) of the Occupational because they are working at a DOE
applicability of the rule is defined under Safety and Health (OSH) Act (29 U.S.C. site).’’ DOE disagrees. OSHA’s
section 851.1(a), which clarifies that the 651 et seq.) provides that OSHA jurisdiction over subcontractor work on
final rule applies to the conduct of regulations do not apply where another a DOE site is not based on the other
contractor activities at DOE sites. federal agency exercises its statutory types of workplaces or the industry in
Two other commenters (Exs. 39, 49) authority to prescribe safety and health which the subcontractor works. Rather,
also expressed concern about the standards and requirements. DOE OSHA has jurisdiction only if DOE
reference in supplemental proposed rule currently exercises its statutory declines to exercise its statutory
section 851.2(a) to a ‘‘covered authority broadly throughout the DOE authority.
workplace.’’ The commenters noted that complex to provide safe and healthful Two commenters (Exs. 36, 29) sought
the term was not defined, leaving workplaces. In a few cases, however, clarification on whether privately-
readers to assume that it refers to DOE DOE has elected not to exercise its owned or—leased facilities operated by
facilities not excluded from the scope of authority and to defer to regulation by contractors under a DOE contract and
the rule. One of the commenters (Ex. 49) OSHA under the OSH Act. Final rule otherwise subject to state occupational
suggested replacing the term ‘‘covered section 851.2(a)(1) continues the status safety and health regulation are
workplace’’ with ‘‘DOE site’’ since the quo by excluding from coverage those excluded from the rule. One commenter
supplemental proposed rule did not facilities regulated by OSHA. The (Ex. 29) specifically requested DOE to
include a definition for ‘‘covered OSHA-regulated facilities are: Western clarify if the exclusion applied to sites
workplace.’’ DOE has responded to Area Power Administration; regulated by State OSHA. DOE notes
these comments by including a Southwestern Power Administration; that the exclusion only applies to
definition of the term ‘‘covered Southeastern Power Administration; regulation by OSHA. However, DOE
workplace’’ in final rule section 851.3. Bonneville Power Administration; notes that a location not owned or
One commenter (Ex. 27) pointed out National Energy Technology Laboratory leased by DOE can be a DOE site only
that while supplemental proposed rule (NETL), Morgantown, West Virginia; if DOE exercises regulatory control over
section 851.2(a) made no distinction in National Energy Technology Laboratory the location. This is consistent with
the severity of hazards covered by the (NETL), Pittsburgh, Pennsylvania; DOE’s current practice. For example,
rule, supplemental proposed rule Strategic Petroleum Reserve (SPR); some operations of Nevada Test Site
section 851.4 included references to National Petroleum Technology Office; contractors are not conducted on the
both ‘‘hazards causing or likely to cause Albany Research Center; Naval Mercury Site, which is owned by DOE.
serious bodily harm’’ and ‘‘adequate Petroleum and Oil Shale Reserves in DOE operations of these contractors
protection from hazards identified in Colorado, Utah, & Wyoming; and Naval conducted off the Mercury site are
the workplace.’’ As noted previously, Petroleum Reserves in California. See 65 subject to DOE nuclear safety
the rule is intended to fulfill DOE’s FR 41492 (July 5, 2000). Work requirements. Part 851 will be applied
responsibility under the AEA to ensure performed on such sites for DOE by in the same manner.
adequate protection from all workplace DOE contractors, however, would be One commenter (Ex. 19) sought
hazards. The rule also is intended to subject to the applicable contract clarification from DOE that the DOE
Mixed Oxide Fuel Fabrication Facility and cooperate in instances where the extent regulated by 10 CFR parts 820,
(MFFF) would not be subject to the rule requirements overlap. The two sets of 830 or 835,’’ in the final rule.
because, section 3134(c) of the Strom requirements should be integrated and One commenter (Ex. 19) suggested
Thurmond National Defense applied in a manner that guards against that sites regulated by the Nuclear
Authorization Act for Fiscal Year 1999 unintended results and provides Regulatory Commission (NRC) should
mandates that OSHA regulate the MFFF. reasonable assurance of adequate be excluded from coverage under the
The commenter cited part of section worker protection. rule, since the NRC regulates some
3134(c) which states that ‘‘any activities Numerous commenters (Exs. 48, 13, aspects of worker safety and health such
carried out under a license required 16, 29, 31, 36, 39, 47, 49) pointed out as fire protection and certain aspects of
pursuant to section 202(5) of the Energy that the exclusion of radiological chemical safety (in addition to nuclear
Reorganization Act of 1974 (42 U.S.C. hazards contained in this provision was and radiological safety). As discussed
5842) * * * shall be subject to not consistent with other sections of the previously, the NRC does not regulate
regulation under the Occupational supplemental proposed rule, which non-radiological occupational safety
Safety and Health Act of 1970.’’ The included the term ‘‘radiological and health matters. As a result, in most
commenter requested a specific hazards’’ in describing certain rule instances, DOE has exercised and
statement that the rule does not apply provisions. Inclusion of radiological intends to continue to exercise its
to a DOE site ‘‘to the extent that hazards was intended to stress the need regulatory authority over worker safety
facilities or activities on such site are to examine hazards in a wholistic and health at DOE facilities licensed by
subject to licensing pursuant to section context rather than in isolation. To NRC.
202(5) of the Energy Reorganization Act avoid confusion, DOE has removed the One commenter (Ex. 20)
of 1974, as amended.’’ DOE agrees that term, but this should not be interpreted recommended adding an exclusion
activities undertaken pursuant to a NRC as negating the need to analyze hazards related to nuclear explosive operations:
license for the MFFF are subject to together so that controls do not produce ‘‘This part does not apply to nuclear
OSHA regulation to that extent. DOE unintended consequences. This is the explosive operations to the extent
notes that the exact scope of such essence of integrated safety management regulated by 10 CFR 10, 820, 830, or
activities can only be determined by which is emphasized in section 835.’’ DOE agrees with the commenter’s
looking at the terms of the license 851.13(b). One commenter (Ex. 28) proposal, and has incorporated the
granted by NRC. DOE further notes that observed that radiological hazards are exclusion for nuclear explosive
the treatment of the MFFF is not the ‘‘inextricably intertwined with physical, operations in final rule section 851.2(b).
general practice with respect to DOE chemical, and biological hazards at most In addition, DOE has included
facilities licensed by NRC. Since NRC DOE sites’’; and favored deletion of the definitions for nuclear explosives and
does not regulate non-radiological radiological hazard exclusion. DOE nuclear explosive operations in final
worker safety and health matters, DOE recognizes that radiological hazards are rule section 851.3.
regulates these matters at DOE facilities intertwined with other workplace Section 851.3—Definitions
subject to NRC licensing and thus hazards; however, radiological hazards
preempts regulation by OSHA. have historically been covered under Section 851.3 of the final rule defines
Section 234C of the AEA explicitly separate programs and through separate terms used throughout the rule.
excludes activities conducted under the requirements both within DOE and Commenters on this section of the
authority of the Director, Naval Nuclear external to DOE. DOE believes that supplemental proposed rule typically
Propulsion, pursuant to Executive Order current rules addressing radiological requested either addition of new terms,
12344, as set forth in Public Law 106– safety issues—10 CFR 820, 830, and clarification or modification of proposed
65. Accordingly, section 851.2(a)(2) 835—are sufficient. As a result, DOE definitions, or deletion of selected terms
excludes workplaces regulated by the retained the exclusion of radiological from the rule. These comments are
Director, Naval Nuclear Propulsion. hazards in the final rule. discussed in detail below and/or in the
DOE received no comments on this Another commenter (Ex. 49) favored section-by-section discussion
provision during the public comment deletion of the phrase ‘‘* * * to the corresponding to the specific rule
period. extent regulated by 10 CFR parts 820, sections where each term is used.
Section 851.2(b) provides that 830 or 835,’’ from the radiological New terms. In response to public
radiological hazards or nuclear hazard exclusion provision. The comment, and to assist in further
explosive operations are not covered by commenter asserted that radiological clarification of the provisions of the
Part 851 to the extent that they are hazards were not within the scope of the rule, the following additional terms
regulated by the existing requirements rule. DOE acknowledges that existing have been defined in section 851.3:
on nuclear safety and radiological rules already deal with radiological ‘‘Affected worker,’’ ‘‘closure facility,’’
protection set forth in 10 CFR Parts 20, hazards and nuclear explosives in a ‘‘closure facility hazard,’’
820, 830, and 835. These existing rules comprehensive manner. This regulation ‘‘construction,’’ ‘‘construction
already deal with radiological hazards is intended to complement the nuclear contractor,’’ ‘‘construction manager,’’
and nuclear explosives in a safety requirements. As discussed ‘‘construction project,’’ ‘‘construction
comprehensive manner through above, DOE intends for the two sets of worksite,’’ ‘‘covered workplace,’’ ‘‘DOE
methods such as the Quality Assurance requirements to be integrated and Enforcement Officer,’’ ‘‘Head of DOE
Program Plan, the Safety Basis, the applied in a manner that guards against Field Element,’’ ‘‘interim order,’’
Documented Safety Analysis, the unintended results and provides ‘‘nuclear explosives,’’ ‘‘nuclear
Radiation Protection Program Plan, and reasonable assurance of adequate explosives operation,’’ ‘‘occupational
the Nuclear Explosive and Weapons worker protection. Thus, personnel medicine provider,’’ ‘‘permanent
Surety Program. This regulation is responsible for implementing worker variance,’’ ‘‘pressure systems,’’ ‘‘safety
intended to complement the nuclear protection and nuclear safety and health standard,’’ ‘‘temporary
safety requirements. Personnel requirements are expected to coordinate variance,’’ ‘‘unauthorized discharge,’’
responsible for implementing worker and cooperate in instances where the and ‘‘ variance.’’ A discussion of each
protection and nuclear safety requirements overlap. For this reason, term is included in the alphabetical
requirements are expected to coordinate DOE retains the phrase ‘‘* * * to the listing of definitions below.
Terms and definitions deleted. In The Cognizant Secretarial Officer (including dredging, excavating, and
response to public comment, the (CSO) is the Assistant Secretary, Deputy painting) of buildings, structures, or
following definitions in the Administrator, Program Office Director, other real property, as well as any
supplemental notice are deleted in the or equivalent DOE official who has construction, demolition, and
final rule: ‘‘Activity-level hazard primary line management responsibility excavation activities conducted as part
analysis,’’ ‘‘hazard control,’’ ‘‘Site for a contractor, or any other official to of environmental restoration or
Manager,’’ ‘‘workplace safety and health whom the CSO delegates in writing a remediation efforts. DOE added this
programmatic requirement,’’ particular function under this part. One definition to the final rule in response
‘‘workplace safety and health commenter (Ex. 32) sought clarification to public comments discussed in the
requirement,’’ and ‘‘workplace safety of the definition for the term Cognizant section-by-section discussion for
and health standard.’’ The deletions are Secretarial Officer due to the Appendix A section 1, ‘‘Construction
explained in the section-by-section inconsistency between the proposed Safety.’’
discussion of the rule provisions in rule definition of a CSO having The construction contractor is the
which the terms were previously used. ‘‘primary line management lowest tiered contractor or subcontractor
Section 851.3 defines key terms using responsibility for a contractor’’ and how with primary responsibility for the
traditional occupational safety and CSOs were assigned in DOE Manual execution of all construction work
health and Departmental terminology, 411.1–C, Safety Management Functions, described within a construction
as well as terminology used by the Responsibilities, and Authorities procurement or authorization document
OSHA in its regulations and Manual, by site or organization. The (e.g., construction contract, work order).
interpretations, in establishing and commenter recommended that the DOE added this definition to the final
clarifying the provisions of this rule. definition be made consistent with DOE rule in response to public comments
The use of such terminology is Manual 411.1–C. In response, DOE discussed in the section-by-section
consistent with DOE’s increased modified the definition of CSO in the discussion for Appendix A section 1,
emphasis on safety and health final rule to include reference to a DOE ‘‘Construction Safety.’’
compliance through the use of accepted official with primary line management The construction manager is the
occupational safety and health responsibility for a contractor and any individual or firm responsible to DOE
requirements and procedures. The other official to whom the CSO for the supervision and administration
following discussion defines and delegates a particular function under of a construction project to ensure the
explains each of the terms in the rule. this part. construction contractor’s compliance
Although some of these terms are A compliance order is an order issued with construction project requirements.
commonly used, DOE believes these by the Secretary to a contractor that DOE added this definition to the final
definitions will help ensure that their mandates a remedy, work stoppage, or
rule in response to public comments
meaning as used in the context of the other action to address a situation that
discussed in the section-by-section
rule is clear. Section 851.3(a) presents violates, potentially violates, or
discussion for Appendix A section 1,
definitions of terms as used in this part. otherwise is inconsistent with a
AEA is the Atomic Energy Act of ‘‘Construction Safety.’’
requirement of this part. This provision
1954. DOE did not receive any The construction project refers to the
merely codifies the Secretary’s authority
comments on this proposed definition under the AEA to take immediate action full scope of activities required on a
during the public comment period. where necessary to ensure an adequate construction worksite to fulfill the
Affected worker is an employee who level of safety. While the Secretary requirements of the construction
would be affected by the granting or might use this authority where there is procurement or authorization
denial of a variance, or any authorized a persistent pattern of non-compliance document. DOE added this definition to
representative of the employee, such as by a contractor that warrants Secretarial the final rule in response to public
a collective bargaining agent. DOE intervention, a compliance order is not comments discussed in the section-by-
added this definition to the final rule to intended to be used as a routine section discussion for Appendix A
assist in clarifying worker rights enforcement device by the Office of section 1, ‘‘Construction Safety.’’
associated with the variance process. Price-Anderson Enforcement. DOE The construction worksite is the area
A closure facility is a facility that is received no comments specifically within the limits necessary to perform
non-operational and is, or is expected to related to this definition during the the work described in the construction
be, permanently closed and/or public comment period. Comments on procurement or authorization
demolished, or title to which is the compliance order provisions of the document. It includes the facility being
expected to be transferred to another rule are addressed in detail in the constructed or renovated along with all
entity for reuse. DOE added this section-by-section discussion for final necessary staging and storage areas as
definition to the final rule to assist in rule section 851.4. well as adjacent areas subject to project
clarifying which facilities qualify for the A consent order is any written hazards. DOE added this definition to
flexibility provisions established in final document, signed by the Director and a the final rule in response to public
rule section 851.21(b). contractor, containing stipulations or comments discussed in the section-by-
A closure facility hazard is a conclusions of fact or law and a remedy section discussion for Appendix A
workplace hazard within a closure acceptable to both DOE and the section 1, ‘‘Construction Safety.’’
facility covered by a requirement of contractor. DOE did not receive any A contractor is any entity under
final rule section 851.23 for which strict comments on this proposed definition contract with DOE, including a
technical compliance would require during the public comment period. subcontractor, with responsibility for
costly and extensive structural/ Construction means any combination performing work at a DOE site in
engineering modifications to be in of erection, installation, assembly, furtherance of a DOE mission. This term
compliance. DOE added this definition demolition, or fabrication activities does not apply to contractors or
to the final rule to assist in clarifying the involved to create a new facility or to subcontractors that provide only
types of hazards that qualify for the alter, add to, rehabilitate, dismantle, or ‘‘commercial items’’ as defined under
flexibility provisions established in final remove an existing facility. It also the Federal Acquisition Regulations
rule section 851.21(b). includes the alteration and repair (FAR). Such contractors would not be
performing work in furtherance of a applicable entities or that the usage of referred to a ‘‘covered workplace,’’ but
DOE mission. the term in the rule be reviewed closely that term was not defined in proposed
Several commenters (Exs. 16, 28, 31, to eliminate inconsistencies, or rule section 851.3. Consequently
37, 39, 45, 48, 51) requested clarification alternatively that separate definitions be contractors would be left to assume that
of the role of affiliated entities, like provided for ‘‘subcontractor’’ and the term referred to DOE facilities not
parent corporations, in the definition of ‘‘supplier.’’ DOE has modified the excluded from the scope of the rule.
‘‘contractor.’’ One commenter (Ex. 39) definition in the final rule to make clear Two commenters (Exs. 36, 42) observed
questioned the legal justification for it covers contractors and subcontractors that supplemental proposed rule section
including parent organizations within at any tier. DOE also has made several 851.1 would limit application of the
the scope of these regulations. Noting other revisions to the regulatory rule to contractor activities at ‘‘DOE
that well-established legal precedents language to eliminate potential sites’’ (which is defined in
regarding separation of parent ambiguities as to which contractor(s) supplemental proposed rule section
corporations and their entities existed, a would be subject to a particular 851.3), but the term ‘‘covered
commenter (Ex. 16) recommended that provision in a particular situation. workplace’’ was used rather than ‘‘DOE
DOE excise references to parent Another commenter (Ex. 28) proposed sites’’ throughout the rule language. In
organizations or review each use of the that ‘‘contractor’’ be defined as any response to these concerns, DOE added
term in the rule for unintended or entity under contract (or its a definition for ‘‘covered workplace’’ in
inappropriate implications to ensure subcontractors or suppliers) with DOE final rule section 851.3. The use of
compliance with legal precedents. that has entered into an agreement of ‘‘covered workplace’’ is intended to
Another commenter (Ex. 37) indemnification under section 170d of make clear that the focus of the rule is
requested clarification of DOE’s the AEA. As discussed previously, DOE the specific areas where work is
expectations of affiliates under the rule. made the decision to cover all of its performed. In addition, as discussed
A few commenters (Exs. 28, 45, 51) contractors to ensure consistency in the previously, the definition of ‘‘DOE site’’
sought clarification of the circumstances protection of workers and enforcement. has been revised to provide further
under which an enforcement action may As a result, the definition of contractor clarity on the scope of the rule.
be brought against a parent corporation in the final rule does not limit the term One commenter (Ex. 48) also
or affiliated entity. Some other to those contractors covered by an requested clarification of the term
commenters (Exs. 31, 39, 48) took issue agreement of indemnification. ‘‘covered workplace’’ with respect to the
with what they perceived as DOE’s Several other commenters (Exs. 20, term ‘‘worker.’’ In reference to the use
attempt to expand the scope of DOE 45, 49, 51) recommended limiting the of ‘‘worker,’’ the commenter questioned
enforcement authority to entities that definition of ‘‘DOE contractor’’ to any whether a contractor would be held
are established under State laws as entity under contract to DOE whose responsible for ensuring that all the
wholly independent of their affiliates responsibility it would be to flow-down work of vendors, suppliers, and
(e.g., C corporations, S corporations and requirements to subcontractors. Two of fabricators not located at the
LLCs) and operate outside the liability these commenters (Exs. 49, 51) favored contractor’s work location, but who
space of DOE authority. Many eliminating references to subcontractors were providing goods, services, and
commenters (Exs. 31, 39, 48, 49, 51) since they lack authority to conduct or materials for DOE work, was in
recommended elimination of language direct work at DOE sites. Section 3173 compliance with the rule. As discussed
referring to any affiliated entity, such as of the NDAA requires DOE to include elsewhere, DOE has clarified what
‘‘parent organization’’ in the proposed subcontractors within the framework of constitutes a ‘‘DOE site’’ and has
definition. Lastly, two commenters (Exs. the rule. Accordingly, the Department defined ‘‘worker’’ to be a contractor
45, 51) noted that parent companies are does not have the discretion to exclude employee performing work in a covered
expressly set up to limit liability, so it subcontractors from the rule. workplace at a DOE site in furtherance
was inappropriate to attempt to A covered workplace is a place at a of a DOE mission.
circumvent established corporate DOE site where work is conducted by a A Director is a DOE Official to whom
structures by including them in the contractor in furtherance of a DOE the Secretary has assigned the authority
definition. DOE appreciates these mission. Several commenters (Exs. 1, to investigate the nature and extent of
concerns. Nevertheless, to ensure that 13, 29, 32, 39, 42) requested greater compliance with the requirements of
responsible parties such as an affiliate clarification of the term ‘‘covered this part. This function has been
are held responsible for the safety and workplace’’ and strongly supported its assigned to the current Director of the
health of workers, and to maintain inclusion in the list of definitions in Office of Price-Anderson Enforcement
consistency with the duties and proposed section 851.3. For instance, in the Office of Environment, Safety and
responsibilities set forth in 10 CFR Part one commenter (Ex. 13) sought Health, who is the person to whom the
820, DOE has determined not to delete elucidation of which workplaces were Secretary has assigned the responsibility
the reference to affiliated entities in the covered by the regulation (e.g., whether for enforcing the DOE nuclear safety
definition. the term included contractor owned or regulations in 10 CFR parts 20, 820, 830,
Several commenters (Exs. 20, 28, 33, leased facilities). Another commenter and 835. DOE did not receive comments
42, 45, 49, 51) also sought clarification (Ex. 32) recommended that the on this definition during the public
and modification of the proposed definition distinguish between DOE comment period.
definition for contractors with respect to sites and non-DOE locations. The DOE is the United States Department
the inclusion of subcontractors. Some commenter noted that non-DOE of Energy, including the National
commenters (Exs. 28, 33, 45, 51) felt that locations could include contractor- Nuclear Security Administration. One
the term contractor was inconsistently owned or -leased locations, vendor commenter (Ex. 39) sought a
applied throughout the rule and locations, or other areas where DOE clarification of which entities were
variously referred to prime contractors, contractors performed activities (viz., included under the DOE acronym. The
subcontractors, or suppliers, when research, installation of equipment, commenter questioned if the term
distinctions were required. One business, and travel). One commenter referred to the local site or field office
commenter (Ex. 33) recommended that (Ex. 39) pointed out that in proposed or the DOE Office of Price-Anderson
the definition be modified to limit rule section 851.2(a), the regulations Enforcement. In response, DOE notes
that DOE is defined in final rule section which the recipient of the order must to violate a requirement of this part.
851.3 and includes any DOE comply. Such a document includes:
headquarters, field, area, or site office. General Counsel refers to the General (1) A statement specifying the
Where a specific office has a specific Counsel of DOE. requirement of this part to which the
role or responsibility with respect to A Head of DOE Field Element is the violation relates;
this rule, the specific office is referenced highest-level DOE official in a DOE field (2) A concise statement of the basis
under the corresponding provision of or operations office who has the for alleging the violation;
the rule. responsibility for identifying the (3) Any remedy, including the amount
A DOE Enforcement Officer is a DOE contractors and subcontractors covered of any proposed civil penalty; and
Official to whom the Director has by this part and for ensuring compliance (4) A statement explaining the
assigned the authority to investigate the with this part. DOE added this reasoning behind any proposed remedy.
nature and extent of compliance with Pressure systems are all pressure
definition to assist in clarifying program
the requirements of this part. DOE vessels, and pressure sources including
review and approval authorities under
added this definition to assist in cryogenics, pneumatic, hydraulic, and
the final rule by identifying the DOE vacuum. Vacuum systems should be
clarifying enforcement authorities under official responsible for these actions
the final rule. considered pressure systems due to
under the rule. their potential for catastrophic failure
DOE site means DOE-owned or An interpretation refers to a statement
-leased area or location or other location due to backfill pressurization.
by the General Counsel concerning the Associated hardware (e.g., gauges, and
controlled by DOE where activities and meaning or effect of a requirement of
operations are performed at one or more regulators), fittings, piping, pumps, and
this part that relates to a specific factual pressure relief devices are also integral
facilities or locations by a contractor in situation but may also be a ruling of
furtherance of a DOE mission. This parts of the pressure system. DOE added
general applicability if the General this definition to clarify the scope of the
definition was revised to include all Counsel determines such action to be
sites where DOE exercises regulatory pressure safety provisions of Appendix
appropriate. DOE received several A section 4 of the final rule.
control under the AEA, even if DOE comments regarding the interpretation A remedy is any action (included, but
does not own or lease the site. provision of the rule. These comments
One commenter (Ex. 5) suggested a not limited to, the assessment of civil
are addressed in detail in the section-by- penalties, the reduction of fees or other
modification of the definition of ‘‘DOE section discussion for final rule section payments under a contract, the
site’’ to include the idea that some DOE 851.6. requirement of specific actions, or the
sites have multiple contractors working NNSA is the National Nuclear modification, suspension or rescission
on them. DOE disagrees that a Security Administration. of a contract) necessary or appropriate
modification to this definition is needed A nuclear explosive is an assembly to rectify, prevent, or penalize a
to clarify this point. The current containing fissionable and/or fusionable violation of a requirement of this part,
definition does not limit the meaning of materials and main charge high- including a compliance order issued by
the term to areas where only one explosive parts or propellants capable of the Secretary pursuant to this part. One
contractor works. producing a nuclear detonation (e.g., a
Two commenters (Exs. 19, 48) commenter (Ex. 28) proposed a
nuclear weapon or test device). DOE modification of the definition for the
questioned ownership and geographical added this definition (see, e.g., 10 CFR
issues with respect to a DOE site. One term ‘‘remedy’’ and suggested the
section 712.3) to further clarify the definition should read as: ‘‘any action
commenter (Ex. 48) suggested that DOE exclusion provisions of section 851.2 of
site should be defined as being strictly (included, but not limited to, the
the final rule. assessment of civil penalties, the
DOE-owned or directly DOE-leased
A nuclear explosive operation is any requirement of specific actions, request
areas/locations. The other commenter
activity involving a nuclear explosive, to the DOE contracting officer for a
(Ex. 19) had contractor specific concerns
including activities in which main reduction of fees or other payments
about the definition’s applicability,
charge high-explosive parts and pit are under a contract, or the modification,
requesting clarification that the rule
collocated. DOE added this definition to suspension or rescission of a contract.’’
only intended to cover sites owned or
further clarify the exclusion provisions The commenter pointed out that the
leased by DOE as opposed to DOE sites
of section 851.2 of the final rule. DOE contracting officer was the entity
not owned or leased where contract
An occupational medicine provider is that had the authority to implement
work is performed. DOE considered
the designated site occupational contract actions. While DOE agrees that
these comments in revising the
medicine director (SOMD) or the contracting officers have the authority to
definition of ‘‘DOE site.’’
A final notice of violation is a individual providing medical services. take contract actions, the Director has
document that determines a contractor A permanent variance is relief from a been delegated the authority to enforce
has violated or is continuing to violate safety and health standard, or portion Part 851. In that role, the Director
a requirement of this part. Such thereof, to contractors who can prove coordinates with the contracting officer
document includes: that their methods, conditions, in effecting the appropriate contract
(1) A statement specifying the practices, operations, processes provide action. DOE has determined that the
requirement of this part to which the workplaces that are as safe and healthful definition being adopted for ‘‘remedy’’
violation relates; as would result from compliance with is appropriate because it provides the
(2) A concise statement of the basis the workplace safety and health Department the flexibility to determine
for the determination; standard required by this part. DOE the most appropriate remedy to a
(3) Any remedy, including the amount added this definition to further clarify violation of a relevant safety and health
of any civil penalty; and the variance process established in provision.

(4) A statement explaining the Subpart D of the final rule. A safety and health standard is a
reasoning behind any remedy. A preliminary notice of violation standard that addresses a workplace
A final order is a DOE order that (PNOV) is a document that sets forth the hazard by establishing limits, requiring
represents final agency action and, if preliminary conclusions that a conditions, or prescribing the adoption
appropriate, imposes a remedy with contractor has violated or is continuing or use of one or more practices, means,
methods, operations, or processes, process established in Subpart D of the analyze all hazards in an integrated
reasonably necessary or appropriate to final rule. manner.
provide safe and healthful workplaces. A worker is an employee of a DOE Many commenters (Exs. 15, 20, 28,
Two commenters (Exs. 15, 29) sought contractor who performs work for DOE 39) expressed concerns about the use of
clarification of and favored elimination at a covered workplace in furtherance of the term ‘‘potential’’ in the definition for
of the term ‘‘workplace health and a DOE mission. A few commenters (Exs. workplace hazards. Some commenters
safety programmatic standards’’ from 16, 31, 39, 48) suggested that DOE (Exs. 15, 20, 28) suggested replacement
the proposed rule since it appeared to modifying the proposed definition for of the proposed language ‘‘with any
be redundant with the terms ‘‘workplace ‘‘worker’’ to exclude the phrase ‘‘or any potential to cause illness,’’ with the
health and safety standards’’ and other person.’’ Specifically, two language ‘‘with the potential to cause
‘‘workplace health and safety commenters (Exs. 16, 31) remarked that illness’’ or ‘‘with any potential to cause
requirements.’’ As requested, DOE has the definition of worker could be imminent illness’’ in the definition for
eliminated the term ‘‘workplace health interpreted to include work conducted workplace hazards; this, they asserted,
and safety programmatic standards’’ and off-site and at non-DOE locations. would account for the fact that many
also, the term ‘‘workplace health and Furthermore, all types of activities on a chemical, biological, and radiological
safety requirements’’ from the final rule. DOE site (including non-DOE-related exposures resulting from chronic
One commenter (Ex. 11) questioned ones like those of a UPS courier exposures can, after decades, cause
why DOE issued a separate definition delivering packages, copier service illness, injury, and death. Another
for the term ‘‘safety and health person, vending machine maintenance commenter (Ex. 39) cautioned that the
standard,’’ which is commonly used in person, or office supply delivery driver) proposed definition of ‘‘workplace
the safety and health community. The could be misconstrued as work under hazard’’ could be interpreted to
commenter cited the definition of an the regulation. One of these commenters preclude the mere presence of a
occupational safety and health standard (Ex. 16) further suggested the definition hazardous material with any potential to
in section 3(8) of the OSH Act 29 U.S.C. should be re-worded as ‘‘persons who cause illness and hence should be
652(8) in support of the argument and perform work for or on behalf of DOE modified. DOE believes a broad
sought clarification on DOE’s omission at a covered workplace * * *’’. definition of ‘‘workplace hazard’’ is
of language similar to OSHA’s with Additionally, the commenter argued the appropriate to ensure that all hazards
respect to standards being ‘‘necessary or term ‘‘work’’ should be defined for the are considered in determining how to
appropriate to provide safe or healthful purposes of the rule. In response to provide a safe and healthful workplace.
these comments, DOE revised the Section 851.3(b) provides that if a
employment and places of
definition to make clear it applies only term is defined in the AEA but is not
employment.’’ DOE agrees, in general,
to contractor employees, including defined in this rule, it has the meaning
with this comment. However, DOE has
subcontractor employees, who are defined in the AEA for the purpose of
revised the definition of ‘‘safety and
performing work at a covered workplace this rule.
health standard,’’ in the final rule to
in furtherance of a DOE mission. Section 851.4—Compliance Order
make clear that, for purposes of this
Another commenter (Ex. 39) sought
rule, it includes all the standards or Section 161 of the AEA grants the
clarification on whether the definition
requirements included or referenced in of ‘‘worker’’ included private tenants Secretary broad authority to order those
subpart C. present on a DOE site under a lease actions deemed necessary by the
Secretary means the Secretary of arrangement and cautioned that the Secretary to protect facility workers and
Energy. phrase ‘‘* * * or any other person who the environment from any injury
A temporary variance is a short-term performs work at a covered workplace’’ because of activity under the Act.
relief from a new safety and health could be broadly interpreted to include Section 851.4(a) makes it clear that the
standard when the contractor cannot work not being performed by a DOE Secretary has the authority to issue a
comply with the requirements by the contractor. Final rule section 851.1(a) compliance order to any contractor for
prescribed date because the necessary clarifies that the rule applies to the a situation that violates, potentially
construction or alteration of the facility conduct of contractor activities at DOE violates, or otherwise is inconsistent
cannot be completed in time or when sites and final rule section 851.3 with a requirement of Part 851 or the
technical personnel, materials, or clarifies the definition of ‘‘DOE site.’’ AEA. The compliance order will state
equipment are temporarily unavailable. A workplace hazard is a physical, the action or remedy that the Secretary
DOE added this definition to further chemical, biological, or safety hazard deems necessary and the reasons for the
clarify the variance process established with any potential to cause illness, action or remedy. One commenter (Ex.
in Subpart D of the final rule. injury, or death to a person. DOE 20) inquired how compliance orders
An unauthorized discharge is the received numerous comments (Exs. 5, would be reconciled with contract
discharge of a firearm under 13, 16, 20, 29, 31, 39, 45, 47, 49, 51) on obligations and limitations and funding.
circumstances other than: (1) During the inclusion of radiological hazards in In response to this question, DOE notes
firearms training with the firearm the supplemental proposed definition. compliance orders represent an exercise
properly pointed down range (or toward Most favored the elimination of of Secretarial authority under the AEA
a target), or (2) the intentional firing at radiological hazards from the definition, and are not dependent on contractual
hostile parties when deadly force is citing a need for consistency across the provisions.
authorized. DOE added this definition rule and noting that radiological hazards One commenter (Ex. 54)
to further clarify provision of Appendix are addressed under other existing recommended that this provision also
A section 5, ‘‘Firearms Safety,’’ in the regulations like 10 CFR Parts 820, 830, require posting of the compliance order
final rule. and 835. DOE acknowledges these as well as employer responses,
A variance is an exception to concerns and has removed reference to corrections, or requests for rescission or
compliance with some part of a safety radiological hazards from this definition modification. DOE agrees and has
and health standard granted by the in the final rule. However, as previously revised final rule section 851.4(d) to
Under Secretary. DOE added this discussed, this change should not be require posting of compliance orders.
definition to further clarify the variance interpreted to eliminate the need to This provision stipulates that the
posting must remain in place until the Secretary to any contractor will state the exposure to workplace safety and health
violation is corrected. In addition, final reasons for the remedy, work stoppage, hazards.
rule section 851.42(e) requires posting or other action. DOE received no DOE received two general comments
of preliminary notices of violations comments on these provisions during recommending changes to aspects of the
(PNOVs) once they become final. The the public comment period. rule that are mandated by section 3173
rule does not, however, require posting Section 851.4(b) establishes that the of the NDAA. One commenter (Ex. 6)
of employer responses to compliance compliance order will be a final order pointed out that DOE has already
orders or requests for recessions. that is effective immediately unless the successfully incorporated OSHA
Section 851.4(a)(1) establishes that the order specifies a different effective date. requirements into its workplaces.
Secretary may issue to any contractor a Section 851.4(c) grants the recipient of Stating that ‘‘enforcement appears to be
Compliance Order that identifies a a compliance order the right to ask the a DNFSB issue,’’ the commenter
situation that violates, potentially Secretary to rescind or modify the recommended that ‘‘OSHA enforcement
violates, or otherwise is inconsistent compliance order within 15 days of its be worked/addressed between DOE and
with a requirement of this part. Two issuance. The filing of a request for an OSHA and not driven by DNFSB (except
commenters (Exs. 15, 42) took issue appeal under this section will not on Defense Nuclear Facilities).’’ The
with the reference to potential automatically stay the effectiveness of second commenter (Ex. 5) suggested that
violations and the phrase ‘‘otherwise is such an order. The Secretary, however, DOE ‘‘pick one way to fine the
inconsistent with’’ in this supplemental could issue a compliance order that contractor’’ and suggested that DOE not
proposed provision. The commenters would provide an effective date after the ‘‘dilute penalty authority.’’ DOE
expressed concern that given the gravity issuance date, allowing a longer period believes the two penalty methods give
of a compliance order and the to appeal the terms of the order. the Department greater flexibility in
progressive nature of enforcement Two commenters (Exs. 5, 31) determining the appropriate
described in Appendix B section IX, expressed concern that the 15-calendar enforcement mechanism to address
compliance orders should require a day appeal period was not long enough. specific violations of the rule. While
more definitive determination of They argued that ‘‘it takes a month for DOE intends to use civil penalties for
violation. The commenters a document issued by DOE- most enforcement actions, contract
recommended that the phrase Headquarters to reach a DOE penalties will be reserved for egregious
‘‘potentially violates, or otherwise is contractor.’’ One commenter (Ex. 31) violations that indicate general worker
inconsistent with’’ be deleted from the proposed 15 calendar days from receipt safety and health program failure. When
provision. One commenter (Ex. 42) of the compliance order as an appropriate, the Director will coordinate
pointed out that OSHA does not cite alternative to this provision. One with the DOE Field Element to select
employers for potential violations or commenter (Ex. 39) felt that the appeal the most effective penalty approach.
inconsistencies and recommended provision was a moot point if the Other commenters stated that
adoption of a process similar to OSHA. contractor had to take immediate action penalties should not be imposed for an
DOE disagrees. This language, including because the Order was not stayed upon employer’s own observations. One of
the phrase ‘‘potentially violates,’’ is submittal of the appeal. The commenter these commenters (Ex. 16) suggested
consistent with the Department’s recommended that compliance orders that behavior-based safety systems (in
longstanding procedural requirements be stayed during the 15-day window (or which employers report observations on
set forth at 10 CFR 820.41. Given that upon a decision of the Secretary) unless at-risk behaviors) should not be subject
these provisions have worked well in a stay posed significant safety and to enforcement action. DOE notes that
practice, DOE has determined that it health consequences. In response DOE contractors may employ various means
would be inappropriate to modify this notes that a primary purpose of a and methods to identify and abate
language. compliance order is to address noncompliances, such as behavior-
Another commenter (Ex. 27) situations that require immediate action. based safety programs, and that
suggested that the phrase ‘‘violates, DOE believes that it is inappropriate to noncompliances of greater significance
potentially violates, or otherwise delay corrective action unless may be reported into the
inconsistent with’’ was vague (as was extenuating circumstances exist. In such Noncompliance Tracking System (NTS).
language throughout the rule). The cases, final rule section 851.4(c) allows Furthermore, DOE recognizes the value
commenter recommended that the the Secretary to stay the Compliance that an initiative such as behavior-based
entire rule be rewritten to eliminate Order, if appropriate, pending review of safety can add to the development and
vague standards and criteria. Although the contractor’s request to modify or implementation of a comprehensive
the referenced phrase is broad, DOE rescind the Order. In addition, these safety and health program. Therefore,
does not agree that it is vague, and it is time frames are consistent with the such an initiative should be an integral
retained in the final rule. As to the procedures set forth in 10 CFR Part 820. part of the contractor’s approved safety
broader comment about vagueness in and health program, which is subject to
the rule, DOE has carefully reviewed the Section 851.5—Enforcement DOE review. During the performance of
rule in light of all comments received This section establishes enforcement onsite inspections, for instance, the
during the public comment period and provisions for the rule. Like other Office of Price-Anderson Enforcement
has attempted to address those Departmental regulations that apply to may evaluate the approved safety and
requesting clarification or further detail. DOE contractors, this provision allows health program to determine the degree
DOE also intends to publish appropriate DOE to employ contractual mechanisms and depth of compliance measures
guidance materials to further help such as reduction in fees, or to assess a taken by contractors. A second
contractors with implementation. civil penalty when a contractor fails to commenter (Ex. 42) believed that
Section 851.4(a)(2) establishes that the comply with the provisions of this rule. penalties for safety and health issues
Secretary may issue to any contractor a These mechanisms help the Department that are self-identified via NTS ‘‘will
compliance order that mandates a ensure that workers receive an have a chilling effect on contractor’s self
remedy, work stoppage, or other action. appropriate level of protection while disclosing issues.’’ DOE agrees and
Section 851.4(a)(3) establishes that any performing Departmental activities that intends to create reporting guidelines
compliance order issued by the involve exposure or the potential for that will help ensure contractors
understand and are more comfortable hazards on DOE sites. DOE notes, as promulgated under [section 234C] shall
with DOE’s expectations. Future discussed above, that these be subject to a civil penalty of not more
enforcement guidance supplements requirements may be applied to DOE than $70,000 for each such violation.’’
(EGSs) will establish reasonable NTS contractors excluded from this rule For continuing violations, section 234C
reporting thresholds. It is in the through contract mechanisms, if DOE further provides that each day of the
contractor’s best interest to report self- determines that the standards are violation shall constitute a separate
identified noncompliances above the applicable to the work performed by the violation for the purposes of computing
NTS reporting thresholds since the contractor. In addition, DOE has revised the civil penalty to be imposed.
contractor may receive up to 50% Subpart D of the rule to establish a Specifically, under section 851.5(a) a
mitigation of the base penalty for self- variance process modeled after the contractor (or any subcontractor or
reporting—as specified in Appendix B OSHA variance process established in supplier thereto), whose contract with
section IX.b.3. 29 CFR Part 1905. DOE contains an indemnification
DOE received a number of comments Concerned about the possibility of agreement and that violates (or whose
requesting clarification regarding how willful employee misconduct beyond employee violates) any requirement of
various aspects of enforcement will the control of the contractor, one the regulations will be subject to a civil
proceed under section 851.5. For commenter (Ex. 29) recommended that penalty of not more than $70,000 for
example, several commenters (Exs. 20, the enforcement language of the rule each such violation. In the case of a
29, 45, 28, 51) wondered against whom should include a responsibility for continuing violation, this provision of
enforcement action would be directed if employees to comply, similar to section the rule clarifies that each day of the
a subcontractor to a management and 5(b) of the OSH Act. This commenter violation constitutes a separate violation
operating contractor violated a suggested that the added provision for the purpose of computing the
requirement. These commenters mirror the ‘‘unpreventable employee amount of the civil penalty.
inquired how the rule would apply misconduct’’ defense recognized by DOE received several comments
under several specific circumstances, OSHA. DOE agrees with this comment related to the penalty structure
such as if the subcontractor had a direct and has added section 851.20(b) to the described by section 851.5(a). These
contract with DOE (Ex. 29). In general, final rule to prohibit workers from commenters (Exs. 16, 27, 37, 14, 39, 46)
DOE will consider enforcement actions taking actions that are inconsistent with argued that the civil penalty structure
against any and all contractors the rule. In addition, DOE intends to under the rule, with its $70,000 per
associated with a violation. All develop enforcement guidance for the violation maximum penalty, is 10 times
subcontractors and suppliers of an rule that will include provisions similar higher than the OSHA penalty structure,
indemnified contractor are considered to OSHA’s unpreventable employee and thus disproportionately sanctions
indemnified contractors, and as such are misconduct defense outlined in OSHA’s DOE contractors compared to other U.S.
subject to either civil penalties or Field Inspection Reference Manual in industries. These commenters believed
contract penalties. In order to clarify the Chapter III, Paragraph C.8.c(1). OSHA’s penalty structure should be
matter, DOE expects to publish an EGS In another comment related to how used and felt the DOE structure was
based on OSHA’s multi-employer the section applies to subcontractors, excessively burdensome given the
worksite policy to guide enforcement the commenter (Ex. 33) suggested that increased frequency of inspection that
efforts on multi-employer worksites. DOE revise DEAR 952.250–70 (either tends to be associated with DOE
Another commenter (Ex. 25) through this rulemaking or a separate facilities. DOE points out that the
wondered how the enforcement process rulemaking) to inform contractors with penalty structure is not determined by
would view legacy issues. DOE believes an indemnification agreement that they DOE, but rather is established by statue.
the provisions on ‘‘closure facilities’’ are subject to civil penalties under the As a result, the Department is not free
and ‘‘variances’’ provide sufficient rule and to require them to flow this to deviate from these provisions. The
flexibility to deal with legacy issues. A notice down to all lower-tier Director may, however, use discretion in
commenter (Ex. 16) suggested that, subcontractors. The commenter determining what enforcement actions
because section 851.2(a)(1) excludes indicated that a similar revision was may be taken and in establishing the
applicability of this rule to sites also made ‘‘when Congress added final penalty amounts. DOE also points
regulated by OSHA, the OSHA- formal regulation by DOE of nuclear out that it is the responsibility of the
regulated sites are being held to a safety matters.’’ DOE recognizes the contractor to identify and abate
different level of requirements and a commenter’s concern, but notes that noncompliances, thus avoiding penalty.
different enforcement structure than section 3173 of the NDAA mandates One of these commenters (Ex. 27) also
non-OSHA-regulated sites. As an that DOE promulgate a rule to enforce submitted a related suggestion that DOE
example, the commenter pointed out worker safety and health program should establish enforcement
that OSHA does not mandate requirements. The statutory mandate thresholds. DOE agrees. Since violations
compliance with the entire set of does not stipulate nor are its provisions have varying degrees of safety and
consensus standards included in contingent upon rulemaking related to health significance, DOE has established
Subpart C of the supplemental proposal, the DEAR. Accordingly, such a change severity level thresholds that
nor does OSHA require the formal would be beyond the scope of this distinguish on the basis of possible
exemption process of proposed Subpart rulemaking. consequence and have appropriate
D. DOE acknowledges these concerns Section 851.5(a) implements the sanctions. Such thresholds and
and has significantly reduced the statutory provision of section 234C guidance were established in
number of consensus standards paragraph b of the AEA which provides supplemental proposed Appendix A
mandated under Subpart C of the final that ‘‘a person (or any subcontractor or and are retained in Appendix B section
rule to be more consistent with the supplier thereto) who has entered into VI to the final rule.
standards required under DOE Order an agreement of indemnification under Other comments on section 851.5(a)
440.1A. These standards have been section 170d of the AEA (or any related to the definitions and obligations
evaluated by the DOE safety and health subcontractor or supplier thereto) that of contractors and subcontractors. One
community and determined necessary violates (or is the employer of a person commenter (Ex. 48) expressed concern
to address worker safety and health that violates) any regulation that language in supplemental proposed
section 851.9(a)—e.g., ‘‘contractor * * * so long that the corrective action plan the contractor if the contractor or a
(or any subcontractor or supplier would extend beyond the contractor employee violates the
thereto) that violates (or whose implementation date of the final rule. In regulations issued pursuant to section
employee violates)’’—expands the this case, the commenter wondered, 234C. The Act requires these provisions
definitions of ‘‘contractor’’ and would the remaining violations be to be included in each DOE contract
‘‘worker’’ beyond those in supplemental considered ‘‘continuing violations’’ and with a contractor that has entered into
proposed section 851.3 and beyond the be subject to penalty for each day the an agreement of indemnification under
scope of the rule stated in supplemental condition goes uncorrected? The House section 170d of the AEA (the Price-
proposed section 851.1. The commenter Committee directed that $25,000,000 be Anderson Amendment Act). The
thought that this ‘‘expanded’’ definition transferred from the Departmental contract provisions must specify the
might be interpreted as including work Administration account to the Science degrees of violations and the amount of
done by suppliers and vendors on sites Laboratories Infrastructure to begin the reduction attributable to each degree
far removed from DOE sites. DOE addressing the safety deficiencies at the of violation.
disagrees with this comment. Section Science laboratories. In addition, the DOE is implementing this statutory
851.3 defines terms such as Committee directed the Department to mandate to include provisions for the
‘‘contractors’’ and ‘‘workers,’’ while request sufficient funding in the budget reduction in fees in contracts for
section 851.1 of the final rule describes requests for fiscal years 2005 and 2006 violations of this part pursuant to the
which contractors are subject to the rule to correct the remainder of the safety contract’s ‘‘Conditional Payment of Fee’’
and section 851.5 describes enforcement deficiencies. In such cases, DOE will clause. Most DOE management and
provisions that apply to those consider the contractors abatement plan operating contracts currently contain
contractors that are subject to the rule as well as the presence of interim such a clause providing for reductions
(as defined in section 851.1.). Sections control measures when assessing the of earned fee, fixed fee, profit, or share
851.3 and 851.5 do not change (and are penalty. One should note that there are of cost savings that may otherwise be
not intended to change) the scope of the no provisions for grandfathering payable under the contract if
rule. Furthermore, section 851.1(a) existing noncompliances. performance failures relating to
states that the rule applies to the DOE received two comments environment, safety, and health occur.
conduct of contractor activities at suggesting specific changes in the See 48 CFR 970.5215–3, ‘‘Conditional
covered workplaces. wording of the civil penalty Payment of Fee, Profit, or Incentives’’
Believing that ‘‘small business enforcement provision in the (applicable to DOE management and
subcontractors are exempt from OSHA supplemental proposal. In the first, the operating contracts and other contracts
requirements,’’ the same commenter commenter (Ex. 5) suggested revising designated by the Procurement
(Ex. 48) was concerned that this rule the second parenthetical phrase in Executive). DOE amended this clause to
would make small business subject to section 851.5(a) to read ‘‘* * * whose set forth the specific criteria and
OSHA requirements, as well as DOE employee or subcontractor violates.’’ conditions that may precipitate a
enforcement and penalties, and would DOE disagrees with this editorial reduction of earned or fixed fee, profit,
thus have a serious impact on small suggestion. The rule applies directly to or share of cost savings under the
businesses. DOE notes that this subcontractors. A contractor is not contract. The clause establishes
commenter’s belief that small automatically liable for a reduction ranges that correlate to three
businesses are exempt from OSHA subcontractor’s violations. To provide specified degrees of performance
requirements is inaccurate. Although clear guidance on the subject, DOE will failures relating to environment, safety,
employers with 10 or fewer employees publish and implement an EGS on and health. In the final rule, DOE
are exempt from most OSHA DOE’s multi-employer worksite policy clarifies that the term ‘‘environment,
recordkeeping requirements for (similar to OSHA’s policy) to clarify health, and safety,’’ as applied in the
recording and reporting occupational appropriate enforcement for context of the rule, includes matters
injuries and illnesses, small businesses subcontractor violations. relating to ‘‘worker safety and health.’’
must comply with OSHA requirements The second commenter (Ex. 37) Under the rule, DOE will apply the
and are subject to inspections (such as recommended that DOE add a provision same reduction ranges and degrees of
for accident investigations, complaint stating that civil fines will not be performance failure specified in the
inspections, and other reasons). Because imposed unless the contractor knew of ‘‘Conditional Payment of Fee, Profit, or
small businesses do not have the same the hazard and employees were injured Incentives’’ clause to worker safety and
resources as larger establishments, or endangered. DOE disagrees that these health. In a parallel provision to section
businesses do receive penalty reduction criteria should protect a contractor from 234C.c., section 851.5(b) implements
based on employer size. The commenter civil penalty; however, the Department this statutory mandate by making a
(Ex. 48) also asked for clarification does agree that these criteria should be contractor that fails to comply with the
regarding whether contractor employees considered in determining the requirements of Subparts B and C of the
are subject to civil penalty under the appropriate level of penalty. DOE also rule subject to a reduction in fees or
rule. DOE confirms that contractor notes when a contractor is not aware of other payments under a contract with
employees are not subject to civil a hazard, the question becomes ‘‘Should DOE pursuant to the contract’s
penalty; however, under section they have been aware of the hazard?’’ ‘‘Conditional Payment of Fee’’ clause.
851.20(a)(3) contractors are required to That is, did the contractor implement Several of the comments that DOE
assign worker safety and health effective workplace assessment and received on section 851.5(b) related to
responsibilities, evaluate personnel inspections procedures as required how and by how much, fees could be
performance, and hold personnel under final rule section 851.21? reduced under this provision. Three
accountable for worker safety and health Section 851.5(b) implements the commenters (Exs. 28, 45, 51) believed
performance. provisions of section 234C.c. of the that reduction in fee is always an option
One commenter (Ex. 5) inquired about AEA. Section 234C.c. of the AEA for DOE and should not be a part of the
a specific situation in which OSHA had requires DOE to include provisions in rule, but instead should be included in
inspected facilities and found issues its contracts for an appropriate appropriate contracts. DOE does not
that would take a long time to resolve, reduction in the fees or amounts paid to agree with these commenters. While
contract penalties are always applicable requirements of this rule down to their using both civil penalties and contract
to provisions of a contract, they may or subcontractors. Thus, if DOE elects to penalties thus supplemental proposed
may not be directly linked to specific reduce the contractor’s fee, the section 851.9(c) should replace the word
safety and health provisions of a contractor could in turn penalize the ‘‘may’’ with ‘‘shall’’ in the phrase ‘‘DOE
contract. DOE believes that the rule subcontractor. As noted previously, shall not penalize a contractor * * *’’
strengthens enforcement options by however, a more likely scenario is that DOE disagrees with this commenter
specifying that contract penalties may DOE would simply choose the civil since ‘‘may not’’ means ‘‘is not
be applied to violations of the penalty option. permitted.’’
requirements of the rule. Further, As a general matter, DOE intends to Another commenter (Ex. 13) felt that
including this provision in the use civil penalties as the remedy for the criteria used to make the
regulation is consistent with the most violations where DOE may elect determination for imposing the civil
underlying purpose of section 234C of between remedies. DOE expects to penalty rather than reducing contract
the AEA. invoke the provisions for reducing fees should be embedded in the rule.
Two other commenters (Exs. 29, 47) contract fees only in cases involving DOE has not adopted this suggestion.
were concerned whether the reduction especially egregious violations or that Under the final rule, the decision to use
in fee could exceed the $70,000 indicate a general failure to perform either civil penalties or contract
maximum established for civil under the contract with respect to penalties is at the discretion of the
penalties. One of these commenters (Ex. worker safety and health. Such Director and is subject to the specific
47) thought that, to be consistent with violations would call into question a circumstances of each situation. The
section 234C(b) of the AEA, DOE contractor’s commitment and ability to Director will coordinate with the
needed to specify a maximum of achieve the fundamental obligation of appropriate contracting official when
$70,000 contract fee reduction to ensure providing safe and healthy workplaces deciding upon the appropriate penalty
‘‘legal equity’’ between the civil penalty for workers because of factors such as method. DOE believes that attempting to
and the contract fee reduction willfulness, repeated violations, death, predict and develop mandatory criteria
mechanism. DOE notes that except serious injury, patterns of systemic encompassing all potential
where a violation is considered a violations, flagrant DOE-identified circumstances in this rule would be
continuing violation, and each day is violations, repeated poor performance unnecessarily restrictive and counter to
considered a separate day for the in an area of concern, or serious the provision of the statutory
purposes of computing the penalty, the breakdown in management controls. requirement for flexibility and
maximum civil penalty for each Because such violations indicate a discretion in the enforcement of this
violation will not exceed $70,000. general failure to perform under the rule.
However, for contract penalties DOE contract with respect to worker safety Another commenter (Ex. 48)
will follow the Conditional Payment of and health, where both remedies are recommended revising this section to
Fee Clause. Other commenters available and DOE elects to use a state that a contractor cannot be
suggested additional language and reduction in fee, DOE would expect to penalized under sections 851.5(a) and
definitions for this section. One reduce fees substantially under the (b) for the same violation even if such
commenter (Ex. 47) suggested modifying Conditional Payment of Fee clause. violation is addressed under another
the rule to state ‘‘The Director (e.g., Section 234C.d. of the AEA imposes DOE rule, regulation, or order contained
principal enforcement officer) must three specific limitations on DOE’s in the contractor’s contract. The
approve invocation of the Conditional authority to seek monetary remedies. commenter suggested that although
Payment of Fee Clause.’’ This Specifically, DOE may not (1) both supplemental proposed section 851.9(c)
commenter believed that supplemental reduce contract fees and assess civil attempts to prevent dual (contract and
proposed Appendix A section IX(1)(f) penalties for the same violation of a civil) penalties for the same violation,
only required ‘‘coordination’’ of all worker protection requirement; (2) with such ‘‘double jeopardy’’ could exist if
violations with the DOE contract official respect to those nonprofit contractors DOE codifies DOE Order 440.1A. DOE
responsible for administering the specifically listed as exempt from civil believes this commenter’s concern is
Conditional Payment of Fees Clause penalties for nuclear safety violations in unfounded. The statute is clear on this
when considering invoking the subsection d. of section 234A of the issue and the final rule retains the
provisions for reducing contract fees. AEA, assess an aggregate amount of civil original provision to prevent the use of
DOE does not agree and notes that the penalties and contractor penalties in a civil and contract penalties for the same
Director has been delegated the fiscal year in excess of the total amount violation.
responsibility for determining the of fees paid by DOE to that nonprofit One commenter (Ex. 54) questioned
appropriate type of penalty to be entity in that fiscal year; and, (3) assess DOE’s decision not to subject
applied to a given violation. When both civil penalties authorized by contractors to both civil and contract fee
contract penalties are used in lieu of section 234A (nuclear safety and reduction penalties for the same
civil penalties, the Director coordinates radiological protection regulations) and violation. The commenter cited the
with the responsible contracting official those authorized by section 234C National Academy of Public
since the selected remedy is within the (worker safety and health regulations) Administration (NAPA) studies, which
purview of the contracting officer. for the same violation. These statutory show that bonuses were not effectively
Two other commenters (Exs. 28, 51) limitations are set forth in sections linked to safety and health performance.
presumed that a reduction in fees under 851.5(c), (d) and (e) of the rule. DOE notes that, as was described
this provision could not be brought DOE received six comments on previously, the statute specifically
against a subcontractor due to ‘‘privity section 851.5(c), two comments on prohibits DOE from imposing both
of contract’’ (i.e., DOE does not have a section 851.5(d), and no comments contract and civil penalties for the same
relationship with the subcontractor). specific to section 851.5(e). Several of safety and health violation.
These commenters found this somewhat the comments on section 851.5(c) relate A second commenter (Ex. 37)
confusing because the term ‘‘contractor’’ to the imposition of civil or contract suggested expanding supplemental
was defined to include ‘‘subcontractor.’’ penalties. One commenter (Ex. 15) proposed section 851.9(c) in the final
DOE requires contractors to flow the pointed out that DOE is prohibited from rule to avoid imposing a fine when a
contractor earns less than the available supplement (EGS) for worker safety and Section 851.6 of the final rule, sets forth
fee as a result of a safety and health health enforcement. procedures for petitions to initiate
incident. DOE does not believe an DOE notes that enforcement actions generally applicable rulemaking to
expansion of the limitation is needed. A cannot be brought until the rule amend the provisions of part 851.
civil penalty can only be applied if becomes effective, which is one year Section 851.7 of the final rule provides
violation of the rule exists. If this after publication in the Federal for requests for interpretive rulings
violation resulted in an injury, final rule Register. Moreover, enforcement actions applying the regulations to a particular
section 851.5(c) would prevent DOE must be based on violations that take set of facts and providing an
from implementing both civil and place after the effective date of the rule. interpretation that is binding on DOE.
contract penalties for the same Furthermore, compliance with certain Section 851.8 of the final rule
violation. DOE notes, however, that if an requirements (such as submission of a provides for requests for information on
injury resulted from a violation, DOE worker safety and health program) is not the standards in part 851, which may be
would consider this fact, as well as the required immediately upon the effective directed to the Office of Environment,
severity of the injury, in determining the date of the rule. Of course, nothing in Safety and Health, Office of Health (EH–
amount of penalty. the rule affects the possibility of 5). The responses given by EH–5 would
Referring to the section 851.3 enforcement of contractual provisions in be advisory only and would not be
definition of ‘‘contractor’’ as it applies effect prior to the effective date of the binding on DOE. In addition, to assist
to section 851.5(c), the same commenter rule. the DOE community in understanding
(Ex. 37) inquired what DOE expects of the technical meaning or application of
Section 851.6—Interpretation
‘‘affiliates.’’ To ensure that responsible a specific requirement, EH–5 would
parties such as an affiliate are held Supplemental proposed section continue to operate its safety and health
responsible for the safety and health of 851.6(a) established that the Office of response line to provide information on
workers, and to maintain consistency General Counsel would be responsible technical safety and health
with the duties and responsibilities set for formulating and issuing any requirements, requirements published
forth in 10 CFR part 820, DOE is interpretation concerning a requirement by OSHA, and other adopted standards.
retaining the reference to affiliated in this part. Several commenters (Exs. In cases where the information is related
entities in the definition. It is important 11, 15, 16, 31, 36, 39, 42, 48, 54) were to OSHA standards, EH–5 would
to note, however, that DOE will critical of this supplemental proposed continue to consult the existing body of
consider enforcement actions against provision which gave the DOE Office of OSHA interpretations on these
any and all contractors associated with General Counsel an exclusive role in regulations. EH–5 would also consult
a violation. All subcontractors and issuing interpretations of this part. They with OSHA representatives if OSHA
suppliers of an indemnified contractor expressed concern that DOE’s interpretations did not address a unique
are considered indemnified contractors, interpretations of OSHA standards DOE question or circumstance.
and as such, are subject to either civil would conflict with existing OSHA
penalties or contract penalties. interpretations. The commenters stated B. Subpart B—Program Requirements
The two comments related to section that the codes and standards of Subpart Subpart B of the final rule establishes
851.5(d) were both received from the C require interpretation by a competent general administrative requirements to
same commenter (Ex. 29). One of the technical authority and suggested that develop, implement, and maintain a
comments requested that the provision DOE adopt technical interpretation worker protection program. The worker
state that penalties ‘‘shall’’ (rather than procedures similar to OSHA’s—that is, safety and health program would serve
‘‘may’’) not exceed the contract fee. DOE these commenters felt the Assistant as the blueprint through which DOE
notes that the language in the final rule Secretary for Environment, Safety and contractors can communicate a cohesive
‘‘may not exceed’’ is consistent with the Health should issue all technical vision for how various elements making
enacting legislation. DOE understands interpretations. Two commenters (Exs. up their overall program interrelate.
(and intends for) this language to mean 31, 48) suggested that DOE use the Field As a general suggestion, one
that the Department is not permitted to Office staff to assist in developing commenter (Ex. 6) recommended that
assess an aggregate amount of civil and interpretations and a few commenters supplemental proposed Subpart B be
contract penalties against a non-profit (Exs. 15, 16, 48) recommended that DOE cross-walked against OSHA’s 29 CFR
entity under the rule in excess of the adopt already existing OSHA 1910 and 29 CFR 1926 to identify
total amount of fees paid by DOE to that interpretations where possible. Yet, potential overlaps and deviations
non-profit entity for the given fiscal another commenter (Ex. 29) questioned between the OSHA standards and the
year. The second comment (Ex. 29) whether interpretations could be proposed rule. DOE has considered the
suggested that, to the extent that DOE captured in the contractor worker safety commenter’s concern but believes such
may assess both nuclear safety (under and health program and approved by an effort would serve no useful purpose,
10 CFR 820) and worker safety penalties virtue of the CSO approval of the as the OSHA standards do not establish
(under this rule), this final rule should program. provisions for a safety and health
clarify that the penalty limit applies to Although DOE is of the view that the program.
an aggregate of both types of distinction between legal interpretations
assessments. DOE notes, that the statute and technical interpretations is too Section 851.10—General Requirements
authorizing the assessment of civil vague for those terms to be used in part Section 850.10 establishes the general
penalties for violations of the rule does 851, DOE has responded to the requirements for the worker safety and
not require a limit based on total annual comments by elaborating on the health program. These requirements
penalties assessed for violations of procedures available to members of the outline the basic duties of a contractor
nuclear safety requirements. Therefore, public who want to ask for an to maintain a safe and healthful
this final rule does not limit total annual interpretation or who want to ask for workplace, to comply with the
penalty amounts due to penalties amendments to part 851 to clarify or requirements of this rule, and to
assessed under 10 CFR 830. DOE will, alter regulatory provisions. DOE has develop and implement a written
however, consider this recommendation revised proposed section 851.6 and program. A few commenters (Exs. 37,
in developing an enforcement guidance added new sections 851.7 and 851.8. 48, 49, 51) expressed concern that the
worker safety and health program would believed that implementation of the rule the commenter asserted, it is
result in increased costs and burden of itself would have an adverse effect on unattainable as a stand-alone mandatory
additional paperwork due to the its ability to ‘‘achieve national security requirement. As an alternate suggestion,
extensive requirements of the rule. They missions of the Department of Energy in if the Clause was not deleted, the same
were particularly concerned that an efficient and timely manner.’’ In commenter concurred with two other
supplemental proposed section 851.100 response to these concerns, DOE commenters and recommended
introduced new requirements above and modified the language to eliminate this including the ‘‘full context of the
beyond what is expected under existing requirement from the program General Duty Clause as used by OSHA’’
DOE directives and felt that these provisions of Subpart B. Instead, final in the rule. Specifically, the commenter
requirements, along with a complicated rule section 851.31(c)(3) provides for a felt the provision should state that the
exemption process, would result in national defense variance where a Clause only applies where there is no
increased costs. DOE acknowledges the deviation from the letter of a safety and standard and should list the four
concerns of these commenters and notes health standard may be necessary and elements required by OSHA to prove a
that the final rule has been revised to proper to avoid serious impairment of violation. DOE believes that the
closely follow the requirements in DOE national defense. language used in final rule section
Order 440.1A. Hence, DOE believes that Section 851.10(a)(1) provides that, 851.10(a)(1) for the General Duty Clause
implementation of the final rule will with respect to a covered workplace for is consistent with the language
result in minimal (if any) additional which a contractor is responsible, the established in the OSH Act and parallels
costs. contractor must provide a place of that used in DOE Order 440.1A. As a
DOE also received comments on the employment that is free from recognized result, DOE believes that its contractors
subject of limited-duration contractors hazards that are causing or have the are intimately familiar with this
onsite. One commenter (Ex. 40) sought potential to cause death or serious provision. However, to address these
clarification that the worker safety and physical harm to workers. A similar comments and to assist in consistent
health program requirements applied to provision established in section 5(a)(1) enforcement of the rule, the DOE Office
all contractors, including those brought of the OSH Act of 1970 (29 U.S.C. 654) of Price-Anderson Enforcement intends
in for limited-duration and limited- is commonly referred to as the General to prepare enforcement guidance
scope work or tasks. DOE notes that Duty Clause and states that each supplements (EGSs) to provide guidance
final rule section 851.1 clarifies that the employer shall furnish to each of his on interpretation of the General Duty
worker safety and health requirements employees employment and a place of Clause, consistent with OSHA guidance
of the rule govern the conduct of employment which are free from on the topic.
contractor activities at DOE sites. This recognized hazards that are causing or DOE received several comments on
includes limited-duration contractors are likely to cause death or serious the terminology used in supplemental
along with all others (with the exception physical harm to his employees. Both proposed section 851.100(a) to refer to
of contractors performing work covered OSHA and DOE currently apply this hazards. The majority of the
under the exclusions in final rule provision to workplaces covered under commenters on this issue (Exs. 11, 28,
section 851.2). their respective jurisdictions. 29, 39, 45, 49, 51) favored retention of
Another commenter (Ex. 37) pointed A few commenters (Exs. 3, 4, 16) the term ‘‘identified hazards’’ to
out that limited-duration contractors expressed concern that the phrase describe hazards that were within the
will have to become familiar with a ‘‘responsible for a covered workplace’’ rule. But some of these commenters
safety program foreign to them. In as applied to contractors in (Exs. 11, 29, 39, 49) suggested inclusion
response to this concern, DOE believes supplemental proposed section 851.4 of additional terminology like ‘‘potential
the program is based on sound worker could lead to confusion regarding hazards,’’ ‘‘unprotected hazards,’’ and
safety and health principles designed to applicability of the rule to both ‘‘inherent hazards that are controlled’’
protect the safety and health of workers contractors and subcontractors. DOE has to ensure a better understanding of the
on DOE sites. DOE sees no reason to retained the language in the types of hazards covered under the
hold one group of DOE contractors to a corresponding section 851.10(a)(1) of provision. A few commenters (Exs. 28,
lesser standard of safety and health the final rule. DOE believes that final 45, 51) favored deleting the term
protection than others. DOE also rule section 851.1 clearly establishes ‘‘recognized hazards’’ from the text
believes that the complexity and level of that the rule applies to contractor asserting that workers could only be
effort needed to develop and implement activities on DOE sites, and the revised protected from ‘‘identified hazards.’’
worker safety and health program under definition of contractor in final rule One commenter (Ex. 27) recommended
this rule will be greatly dependent on section 851.3 is clear as to what entities that DOE provide a list of specific
the complexity, duration, and scope of are considered to be contractors. hazards that a place of employment
the activities covered. As a result, DOE Several commenters (Exs. 12, 16, 37) should be free of to preclude subjective
would expect that a limited duration expressed concern that the DOE General interpretations of the types of
contractor performing a task of limited Duty Clause lacked supporting guidance recognized workplace hazards that
scope would require a much simpler language, thus potentially resulting in could cause or be likely to cause death
program than would a management and the risk of this obligation being or serious bodily harm.
operating contractor on a large DOE interpreted more severely than OSHA’s DOE has carefully considered these
facility. General Duty Clause. These commenters comments and has simplified section
A few commenters (Exs. 3, 4, 45) took suggested that guidance and case law 851.10(a)(1) of the rule to require
issue with the requirement in developed by OSHA should be relied contractors to provide a workplace free
supplemental proposed section upon for determining violations and of recognized hazards that are causing,
851.100(b)(3)(iii) for contractors to penalties under the DOE rule with or have the potential to cause, death or
achieve national security missions of defenses commonly available in OSHA serious physical harm. Also, as
the DOE ‘‘in an efficient and timely enforcement proceedings equally discussed previously, DOE has removed
manner’’ and deemed it inappropriate in available to DOE contractors. One the provision in supplemental proposed
a rule governing worker safety and commenter (Ex. 16) favored deleting the section 851.100(a)(2). Final rule sections
health. Further, one commenter (Ex. 20) General Duty Clause altogether because, 851.21(a) and 851.22(a) further clarify
that, as part of the contractor’s worker and that, as a result, contractors are with the requirements in Subpart C that
safety and health program, procedures intimately familiar with the language. are applicable to its scope of work. In
must be established that contractors will Section 851.10(a)(2) requires the addition, final rule section 851.24
use to identify existing and potential contractor to ensure that work is requires contractors to take a structured
workplace hazards and evaluate, performed in accordance with all approach to their worker safety and
prevent, and abate associated risks. applicable requirements of Part 851 and health program and include provisions
With respect to hazard protection with the worker safety and health for the applicable functional areas in the
implications of the General Duty Clause, program for the workplace. One worker safety and health program. DOE
several commenters (Exs. 20, 31, 36, 39, commenter (Ex. 37) expressed concerns believes that this integration of
42, 49) asserted it was impossible to about potential penalties that could requirements will reduce excess
provide a workplace ‘‘free’’ of hazards result from failure to comply with the paperwork.
without stopping work. Some of these worker safety and health program. One commenter (Ex. 16) expressed
commenters (Exs. 31, 36, 39, 42) Specifically, the commenter was concern that the language,
suggested rewriting the provision to concerned that non-compliances with ‘‘requirements * * * applicable to the
require the workplace to be ‘‘free from any component of a contractor’s worker hazards identified for the workplace’’ in
uncontrolled or unmitigated hazards.’’ safety and health program (even those supplemental proposed section 851.4(c)
DOE has elected to retain the original outside the requirements of the rule) was confusing. The commenter noted
language consistent with the provisions could result in civil penalties. This that the standards incorporated into
of DOE Order 440.1A and OSHA’s commenter believed that enforcement Subpart C already included a clear
General Duty Clause and will provide against provisions of a contractor’s statement of scope and questioned
appropriate implementation and program that go above and beyond the whether the statement in supplemental
enforcement guidance. Two other requirements of the rule will lead proposed section 851.4(c) referred to
commenters (Exs. 20, 42) questioned the contractors to adhere only to the these scope statements or to some other
definition of the term ‘‘adequately’’ in minimum requirements outlined in the different scope determinations, such as
the context of the phrase ‘‘adequately rule and will result in a watered-down an agreed-upon set of Work Smart
protected from identified hazards’’ in worker safety and health program. This Standards. DOE intends for this
supplemental proposed section commenter argued that only non- phrase—revised in section 851.10(b)(1)
851.100(a)(2) and similar language in compliances with specific worker safety of the final rule to read, ‘‘applicable to
section 851.4(b). As previously and health requirements in the rule the hazards associated with the
discussed, DOE believes ‘‘adequate should result in civil penalties. DOE contractor’s scope of work’’—to refer to
protection’’ is a clear standard that has disagrees and believes that the the individual scope of the standard or
been used in other context and requirement for contractors to develop regulation for those standards specified
recognizes the need to protect workers and implement an approved program in the final rule section 851.23. In the
from all identified hazards. makes compliance with the provisions case of the functional area requirements
Several commenters (Exs. 5, 16, 29, of the program enforceable under the specified through final rule section
48) took issue with the phrase, ‘‘likely rule. DOE expects that not enforcing 851.24, this phrase applies to the
to cause death or serious bodily harm’’ these requirements would result in specific topic covered in the functional
in section 851.10(a)(1). One commenter ineffective programs that are not fully area (e.g., pressure safety requirements
(Ex. 5) felt that the phrase, as used in implemented. DOE also notes that a apply only to worksites with pressure
supplemental proposed sections contractor’s proactive safety and health hazards). All other provisions of final
851.100(a) and 851.4(a), implied that efforts will be considered in rule Subpart C apply to all work sites
only violations that could result in determining the level of penalty within the scope of the rule as specified
death or serious bodily harm would associated with a violation and believes in final rule section 851.1.
result in fines or penalties. This of that this will continue to compel Another commenter (Ex. 54)
course is not the case. Section 851.5 of contractors to develop and implement suggested that this section should
the final rule clarifies that contractors effective programs. require that contractors comply with
are subject to civil or contract penalties Section 850.10(b)(1) specifies that the provisions of the rule establishing
for any violations of any requirements of written program must describe how the worker rights to information. In
this rule. As specified in Appendix B contractor will comply with the response to this commenter’s concern,
section IX.b.2 and 3, however, DOE will requirements in Subpart C that are DOE notes that final rule section
consider the severity of the hazard applicable to the hazards associated 851.10(b) requires contractors to comply
posed to workers in determining the with the contractor’s scope of work. with the requirements of Subpart C of
amount of the penalty imposed. The Two commenters (Exs. 16, 48) expressed the rule. Worker rights provisions are
other commenters (Exs. 16, 29, 48) concern that excess paperwork would established in Subpart C and thus are
argued that the phrase was too be generated due to the Subpart C included in this broad requirement. To
subjective and had posed enforcement requirements to develop numerous further address this comment, DOE also
problems for OSHA in the past. These functional area sub-plans in the worker added final rule section 851.20(a) to
commenters felt that a change in safety and health program. The clarify management responsibilities and
language or a definition of the term commenter suggested that these Subpart ensure worker rights.
‘‘serious bodily harm’’ was needed to C requirements duplicated the Subpart The same commenter (Ex. 54) also
avoid confusion. DOE has modified this B requirement specifying effective suggested that the ‘‘General
language slightly in final rule section implementation of supplemental Requirements’’ section of the rule
851.10(a) to replace ‘‘serious bodily proposed Subpart C in the written should include requirements to post
harm’’ with ‘‘serious physical harm.’’ worker safety and health program. DOE appeals, variance requests, orders and
This change in terminology is consistent agrees with these comments. Section all communications between the
with the language in DOE Order 440.1A. 851.10(b)(1) of the final rule requires employer and DOE. DOE notes that
DOE believes that this provision (and contractors to establish a written worker requirements (1) a requirement to post
language) has been applied successfully safety and health program that must compliance orders is established in final
through the Order for the past decade describe how the contractor will comply rule section 851.4(d); (2) requirements
to post and inform employees of longer includes tailoring a requirement needs and concerns of a specific
variance requests are addressed in final as a rationale for a variance. contractor is the superior approach to
rule sections 851.31, 851.32, and 851.33; Section 850.10(b)(2) specifies that the providing the optimal level of worker
and (3) management requirements written program must comply with any safety and health.
regarding health and safety related compliance order issued by the DOE received numerous comments on
information and communication with Secretary pursuant to section 851.4. One perceived increased costs and
workers are established in 851.20(a). commenter (Ex. 16) objected to previous administrative burden that would result
The rule does not establish a wording requiring that contractors from establishing written worker and
requirement to post appeals. comply with compliance orders that are safety health programs. The majority of
One commenter (Ex. 49) stated that ‘‘applicable to the workplace’’ and the commenters (Exs. 3, 4, 16, 19, 25,
the supplemental proposed requirement questioned why DOE would issue a 31, 37, 38, 42, 47, 48, 49, 57) expressed
to identify and document situations for compliance order under this rule that is concern that the requirements to
which an exemption is needed within not applicable to the workplace. DOE develop a new discrete written program;
the worker safety and health program in acknowledges the validity of the integrate and implement that program
addition to identifying and observation and has removed the phrase on the worksite; and maintain, update,
documenting the same situations ‘‘applicable to the workplace’’ from the and regularly audit the program would
through the exemption process corresponding provision in final rule result in significantly increased costs
represented an unnecessary duplication section 851.10(b)(2). and administrative burden. Two
of effort which should be eliminated. commenters (Exs. 31, 48) specifically
Section 851.11—Development and
DOE agrees and has removed this requested that these impacts be
approval of worker safety and health
provision from the final rule. considered prior to codification. Several
program
commenters (Exs. 3, 4, 37, 42, 47, 49)
Several commenters (Exs. 16, 39, 42, Section 850.11 establishes the suggested that approval of the program
45, 51) sought clarification on the procedures for the development and should be sufficient to meet the intent
tailoring of worker safety and health approval of the worker safety and health of the rule without further requirements
requirements required by supplemental program. One commenter (Ex. 27) to maintain, update, and audit the
proposed section 851.100(b)(3). One expressed concern that vague language program. Two commenters (Exs. 19, 57)
commenter (Ex. 16) suggested it was in the supplemental proposal did not favored elimination of these
impractical for the rule to invoke lend itself to an enforceable rule. The requirements from the rule altogether.
specific requirements (in Subpart C) and commenter pointed to the provision of Another commenter (Ex. 38) argued that
then specify that implementation of the supplemental proposed section these requirements were redundant,
specific requirements was to be tailored. 851.101(a)(2)(ii) requiring contractors to duplicating DOE’s existing review and
The commenter pointed out that the ‘‘ensure worker safety and health approval of contractors’ environment,
specific requirements were either met or programs are integrated and consistent’’ safety, and health activities like the
not met. The commenter also alluded to as an example to illustrates this point. Work Smart set. DOE agrees and has
a potential conflict: other provisions DOE acknowledges the commenter’s provided in final rule section 851.13
implied that formal exemptions were concern and has made every attempt to that in the event a contractor has
needed for deviations from specific eliminate vague language from the final established a written safety and health
requirements of Subpart C (tailoring was rule. However, DOE has retained certain program, an Integrated Safety
included in the special circumstances commonly understood words and terms Management System (ISM) description
for exemption criteria in supplemental in order to allow interpretive latitude to pursuant to the DEAR Clause, or an
proposed section 851.301). The suit differing situations of different DOE approved Work Smart Standards (WSS)
commenter recommended that much of contractors. process before date of issuance of final
the required flexibility/tailoring could One commenter (Ex. 47) stated that rule, the contractor may continue to use
be built into the safety and health the establishment of standards, such as that program, description, or process as
requirements themselves. Two other the OSHA standards, based on well- the required worker safety and health
commenters (Exs. 45, 51) requested defined Federal regulations was program if the appropriate Head of the
clarification on the intent and preferable to the approved safety and DOE Field Element approves such use
application of the tailoring with respect health program approach proposed in on the basis of written documentation
to enforcement actions for non- the rule. The commenter noted that the provided by the contractor that
compliances. Another commenter (Ex. OSHA approach takes advantage of over identifies the specific portions of the
42) requested that DOE provide specific 30 years of workplace safety and health program, description, or process,
criteria to determine what would and reflects responses to hazards found including any additional requirements
constitute effective implementation of in general industry. The commenter or implementation methods to be added
tailored worker safety and health believed such an approach would also to existing program, description, or
requirements in supplemental proposed promote consistency across the DOE process, that satisfy the requirements
section 851.100(b)(3). One last complex as well as accountability for and that provide a workplace as safe
commenter (Ex. 39) suggested that the specific compliance requirements. DOE and healthful as those required by the
actual level of safety protection (e.g., fire acknowledges that there are some final rule requirements.
protection) be specified by DOE at the advantages to having a single set of Several commenters (Exs. 39, 45, 51)
start of a contract, not refined through regulations applicable to all DOE stated that processes described in
the exemption process by the contractor contractors. Nevertheless, there are supplemental proposed section 851.101
well into the contract. In response to offsetting disadvantages to having a represented an expansion of the scope
these concerns, DOE has modified the ‘‘one-size-fits all’’ approach. DOE of contractor obligations compared to
language in the final rule to eliminate believes that the approach adopted in current DOE contractual requirements
the requirement for tailoring of worker the final rule that includes both and orders. A few commenters (Ex. 36,
safety and health programs in Subpart requirements of general applicability, 39, 42) expressed concern that
B. In addition, the variance process supplemented by additional development of the worker safety and
described in Subpart D of the rule no requirements tailored to the specific health plan and delays in waiting for
approval would result in increased 57) took issue with the need to prepare, and health programs by the July 25,
costs. Several other commenters (Exs. submit, and obtain DOE approval of the 2005, due date. The commenters also
28, 37, 45, 49, 51) concurred and sought written safety and health program. generally recommended modification of
clarification from DOE on whether costs Three of these commenters (Exs. 19, 38, the due date depending on the date of
incurred by contractors and 57) asserted that the requirements for issuance of the final rule. Many
subcontractors in developing and submittal, review, and approval of commenters (Exs. 13, 28, 29, 31, 33, 37,
implementing the DOE-approved worker safety and health programs were 45, 47, 49, 51, 57) offered various
worker safety and health program were not necessary to allow DOE to meet its suggestions for the time contractors
allowable in accordance with FAR Part statutory obligation under section 3173 would need to prepare and submit the
31 and DOE Acquisition Regulation of the National Defense Authorization written worker safety and health
Subpart 931 principles. Costs of Act (NDAA). One commenter (Ex. 5) program, ranging anywhere from 90
compliance with Part 851 are usually suggested that the imposition of core days to 12 months after publication of
going to be allowable costs under the requirements in supplemental proposed the final rule in the Federal Register.
contract under FAR Part 31 and DEAR sections 851.10 and 851.100 should DOE acknowledges the validity of the
Part 970.31. Contractor costs in preclude the need for DOE to approve commenters’ concerns regarding the
developing and implementing a DOE- worker safety and health plans and specific date published in the
approved worker safety and health supported simply adding the rule to the supplemental proposal and has
program are routine costs that are DOE list of applicable standards modified the corresponding final rule
typically allowable. An exception to provided in management and operating section 851.11(a) to require contractors
cost allowability might exist, however, contracts and other DOE contracts. to prepare and submit the worker safety
if the action or inaction of contractor Another commenter (Ex. 13) and health program within 380 days
managerial personnel is the original recommended that these provisions be after the date of publication of the final
cause of the non-compliance, revised to allow the worker safety and rule in the Federal Register. In selecting
particularly if the non-compliance health program to be written as an this date, DOE took into account that the
violates an approved integrated safety overview or roadmap document, NDAA prohibits the rule from becoming
management system. illustrating the integration of current effective until twelve (12) months after
One commenter (Ex. 51) voiced the infrastructure documents (previously issuance. DOE expects contractors to
concern that the worker safety and created under DOE Orders 440.1A and begin work on their worker safety and
health rule would require 420 and DOE Notice 450.7). This health program immediately upon
documentation and implementation commenter suggested that the level of publication of the final rule and to
strategies separate from those for DOE oversight DOE already maintains over consult with DOE during the period
Order 440.1A and the Integrated Safety programs under existing contract before the rule becomes effective.
Management (ISM) Program. In structures justifies the submission of Accordingly, DOE believes it is
response, DOE notes that the final rule merely the overview document, without reasonable to require submission of the
is based on DOE Order 440.1A and any of the supporting safety worker safety and health programs no
replaces Attachment 2, ‘‘Contractor management program documents. DOE later than 380 days after publication in
Requirements Document of the order. In believes that the provisions for the Federal Register. In a related matter,
addition, final rule section 851.11(a)(3) submission, review and approval of the DOE believes it is reasonable to require
requires that the written program written safety and health program plans contractors to be in compliance with
describe how the contractor will
are necessary to permit the Department their worker safety and health programs
integrate all requirements of Part 851
to meet its responsibilities under section no later than 470 days after publication.
with other related site-specific worker
3173 of the NDAA and the AEA to DOE also received several questions
protection activity and with the
ensure a safe and healthful workplace. and comments on contractor-
Integrated Safety Management Systems
DOE further notes that the process subcontractor obligations and
(ISMS). Section 851.13(b) of the rule
strikes an appropriate balance between relationships with respect to
clarifies that contractors who have
allowing contractors and workers to development of the worker safety and
implemented a written worker safety
have input into the requirements, while health program. Several commenters
and health program, ISM description, or
recognizing that DOE management must (Exs. 13, 20, 28, 29) questioned whether
Work Smart Standards process prior to
the effective date of the final rule may be satisfied with their implementation. subcontractors, vendors, and delivery
continue to implement that program/ These programs will also be useful to contractors needed to submit their own
system so long as it satisfies the DOE’s enforcement office to evaluate worker safety and health programs or
requirements of Part 851. Hence, DOE compliance with the rule. Further, the whether they were covered under the
believes that the integration of these final rule recognizes that programs are programs of their prime or management
existing programs with the worker already in place and are consistent with and operating contractors. One of these
safety and health program will eliminate the existing mechanism for the commenters (Ex. 20) further questioned
any duplication of effort and limit any submission and approval of worker whether employees of a subcontractor
additional burden associated with the safety and health plans under Part 851. with a worker safety and health program
rule. DOE received numerous comments on would be covered under the
Section 850.11(a) requires contractors the proposed time schedule for subcontractor’s program or that of the
to prepare and submit a worker safety submission of worker safety and health prime management and operating
and health program that provides programs by contractors. The general contractor. DOE generally expects that
methods for implementing the concern expressed by the commenters contractors with primary responsibility
requirements of Subpart C to the (Exs. 3, 4, 5, 16, 28, 29, 31, 35, 36, 39, will develop the health and safety
appropriate Head of DOE Field Element 42, 47, 51, 57) was that the programs and subcontractors will follow
for approval within 380 days supplemental proposed section the programs pursuant to 851.11(a)(2)
publication of the final rule in the 851.101(a) requirement allowed and (3). However, in some cases in
Federal Register, February 26, 2007. insufficient time for an adequate which a subcontractor has primary
Some commenters (Exs. 5, 13, 19, 38, submission of the written worker safety responsibility, it may be necessary and
appropriate for them to provide a ensure the safety and health of workers Some commenters raised concerns
supplemental program. In situations at multi-contractor workplaces. about site responsibility issues at multi-
involving such overlap, contractors Section 851.11(a)(2) describes contractor sites. Two commenters (Exs.
need to coordinate so there are clear contractor requirements if more than 3, 4) asserted that the stipulation that
rules, responsibilities, and procedures one contractor is responsible for a there may be more than one contractor
that result in an integrated approach to covered workplace. This section responsible for a covered workplace
worker safety and health. As discussed clarifies that in such cases, each contradicts other provisions of the rule
previously, vendors and delivery contractor must establish and maintain and will lead to confusion in
contractors are not contractors for a worker safety and health program to application. Two other commenters
purposes of the rule and in general, cover its activities and must coordinate (Exs. 29, 49) questioned whether the
their employees are subject to programs with the other contractors responsible management and operating contractor at
developed by the contractor under for work at the workplace to ensure that any given work place would have any
OSHA’s regulatory authority. individual roles, responsibilities, and oversight, reporting, or other
Nevertheless, when employees of such procedures are established to ensure responsibility for work conducted at
vendors are on DOE sites, they will worker safety and health at multi- that site by another organization under
benefit from the requirements put in contractor workplaces. direct contract to DOE. Another (Ex. 40)
place under Part 851. One commenter (Ex. 15) sought clarification of the issue of
With respect to changes in contractors recommended that the terms ‘‘integrated decentralized vs. centralized
due to contract competition, two and consistent’’ in supplemental responsibility on DOE work sites and
commenters (Exs. 25, 27) voiced proposed section 851.101(a)(2)(ii) be DOE assignment of contractor
concern about the effects of a change in replaced with ‘‘reflect a common responsibilities for health and safety
laboratory prime contractors and noted approach and level of protection’’ to requirements (e.g., traffic safety) across
there was no provision in the proposed allow greater latitude in situations entire DOE sites. To address these
rule dealing with such an event. One of where multiple contractors are concerns, DOE expects to publish
these commenters (Ex. 27) specifically responsible for different activities in a enforcement guidance supplements
suggested that given DOE’s current workplace. The commenter was of the (EGSs) as discussed in the section-by-
approach of re-competing contracts, opinion that this flexibility was section discussion for Subpart E to
Subpart B of the rule should be essential to ensure a focus on safety describe DOE’s planned enforcement
modified to address potential changes in instead of the administrative burden of approach on multi-employer sites. DOE
management and operating integration of multiple prime will base these EGSs on similar OSHA
contractors—especially during the contractors. DOE agrees with this multi-employer worksite enforcement
period between the effective date of the commenter and has revised section policies implemented in private
rule and the one year anniversary. 851.11(a)(2)(ii) of the final rule to industry.
Pursuant to the statutory requirements, require that contractors ‘‘coordinate DOE received numerous comments on
the rule contemplates that a new with the other contractors responsible the subject of consistency of worker
contractor is required to submit and for work at the covered workplaces to safety and health programs on multi-
gain approval for its worker safety and ensure that there are clear roles, employer worksites. The main issues of
health program. As a practical matter, if responsibilities, and procedures that concern included establishing a basis
a prior contractor had a workable will ensure the safety and health of for ensuring consistency and the lack of
program, DOE expects that the new workers at multi-contractor contractual and legal relationships
contractor’s burden would be minimal workplaces.’’ between contractors. The main
because it could submit a similar Several commenters (Exs. 13, 28, 45, recommendations offered to DOE by
program. 51) sought clarification on this commenters in resolving these concerns
Section 851.11(a)(1) describes provision, asking which contractor were for DOE to act as the coordinating
contractor requirements in cases where would be responsible for submission of authority and for DOE to review and
a contractor is responsible for more than the written worker safety and health make use of the OSHA Multi-Employer
one covered workplace. Under such program on multi-contractor sites Policy in the DOE rule. Each of these
conditions, the rule requires the requiring integration and coordination. issues is discussed in more detail below.
contractor to establish and maintain a Three of these commenters (Exs. 28, 45, With respect to establishing a basis for
single worker safety and health program 51) recommended that each contractor ensuring consistency of worker safety
for the covered workplaces for which must maintain a worker safety and and health programs on multi-employer
the contractor is responsible. One health program for the workplaces for work sites, one commenter (Ex. 45)
commenter (Ex. 5) expressed the which each is responsible at a DOE site expressed concern that the language in
opinion that this requirement where multiple contractors are the proposed rule was subjective, lacked
contradicts the requirement for responsible for covered workplaces. measurement, and was an expectation,
contractors to integrate health and safety DOE agrees with these three not an enforceable requirement. The
programs with other site DOE commenters that this was the intent of commenter was of the opinion that
contractors. The commenter suggested the supplemental proposal. DOE notes consistency should arise from the
that one contractor should be that the final rule in section 851.11(a)(2) workforce and be handled in good faith
responsible for the whole site, with all requires each contractor with by employers. The commenter further
other users conforming to that responsibility for a covered workplace remarked that invoking consistency on
contractor’s worker safety and health to establish and maintain a worker multi-employer worksites through
program. DOE disagrees, given the safety and health program for the enforcement of a standard left the
complexity and diversity at some DOE workplaces for which they are employer at risk for compromising their
sites, each contractor responsible for responsible. Hence, at multi-contractor safety program and made DOE
work at covered workplaces should sites, each contractor is responsible for responsible for the success or failure of
coordinate with the other contractors to submitting its own worker safety and implementation and performance.
ensure that there are clear roles, health program for the covered Several other commenters (Exs. 16,
responsibilities and procedures that will workplaces for which it is responsible. 39, 47, 48, 49, 58) raised the issue of the
inherent difficulty in coordinating and integrate the contractor’s worker safety penalizing subcontractors for failure to
integrating worker safety and health and health programs at a DOE site. One comply were insufficient to ensure
plans at multi-employer sites due to commenter (Ex. 31) was of the opinion compliance. The commenter
lack of contractual relationships that the requirement for integration recommended that the rule section be
between contractors or the legal between contractors, which would ‘‘rewritten to include quantifiable
authority to modify another contractor’s intrinsically seek a majority consensus, intent.’’ Two commenters (Exs. 28, 31)
program. The same commenters (Exs. was in conflict with the requirement to asserted that the requirement for
16, 39, 47, 48, 49, 58) recommended that tailor the worker safety and health contractors to ensure subcontractor
the coordination, accountability, and program to the work environment. The compliance would result in the need to
authority for various worker safety and other commenter (Ex. 35) offered the re-negotiate legal contracts between
health plans among multiple contractors observation that even though the prime contractors and subcontractors
on a site should rest with DOE since purpose and basis of the worker safety and lead to increased costs. As
DOE directly contracts with these and health programs of different discussed above, DOE intends to
entities and maintains contractual contractors may be the same, the details address these questions in appropriate
authorities. Alternatively these of each worker safety and health EGSs on multi-employer worksites
commenters were in favor of deletion of program must be tailored to the specific consistent with current OSHA policy.
this provision from the rule altogether. work to ensure effective However, DOE notes that all contractors,
One commenter (Ex. 48) specifically implementation. DOE recognizes that including subcontractors, are
requested definition of and guidelines the proposed requirement to ‘‘integrate’’ responsible for complying with Part 851
for integration and consistency and worker safety and health programs to the extent they are responsible for a
suggested that the final rule establish created some confusion during the covered workplace.
who would determine when integration public comment period. As a result, the In another area related to
and consistency requirements were term has been removed from final rule subcontractor compliance, two
adequately met on multi-employer sites. section 851.11(a)(2)(ii). This section commenters (Exs. 37, 47) were
Other commenters (Exs. 49, 58) now clarifies that contractors must concerned that increased contractor
specifically recommended that issues coordinate with other contractors onsite oversight and the potential penalties
such as those described in the preceding to ensure clear delineation of roles, would have a negative impact on
paragraphs would best be addressed responsibilities, and procedures. subcontractors and could discourage
through the application of OSHA’s DOE also received numerous some subcontractors from performing
Interpretation of Multi-Employer comments that argued that the work on DOE sites. DOE is required by
Worksite Citation Policy regarding requirement for integration and statute to implement a worker safety
creating, controlling, exposing, and coordination would result in increased and health program that covers all
correcting employers. As discussed costs and additional administrative contractors, including subcontractors.
elsewhere, DOE intends to prepare an burden. The commenters (Exs. 13, 19, One commenter (Ex. 29) requested
enforcement guidance supplement that 31, 35, 36, 39, 42, 48) expressed concern clarification that the need to coordinate
will provide guidance on multi- that integration and coordination and integrate programs applied only to
employer worksites that is consistent between different contractors on a DOE multi-employer sites, not contractor/
with current OSHA policy. site would be costly and burdensome subcontractor relationships. This
One commenter (Ex. 39) felt that the due to differing missions and commenter argued that contractors
requirement to coordinate programs management systems and complex should require subcontractors to
with other contractors responsible for inter-relationships. One commenter (Ex. conform to their programs. They should
work on the covered workplace did not 39) specifically requested that DOE not be required to integrate their
address the issue of application of modify standard contract terms to programs with their subcontractors’.
worker safety and health requirements include the requirement to coordinate DOE’s intent with this provision is not
to private entities benefiting from reuse with other onsite contractors in order to to limit the contractor’s contractual
of former Federal facilities on DOE sites. allow contractors to be reimbursed for authority, but rather to ensure that
For instance, the DOE site contractor costs associated with the coordination safety and health program roles,
may still provide emergency response activity. DOE disagrees that contract responsibilities, and procedures are
and security services to the private modifications are required since clearly understood by all contractors on
entity, but the private entity would not contractors on a site currently operate a covered worksite. In fact, DOE
be subject to the rule. The commenter their worker safety and health programs recognizes that requiring subcontractors
sought clarification of how the with or without conflict. Conflicts are (through appropriate subcontract
emergency response and security normally resolved when they occur. mechanisms) to conform to the
personnel would be protected in such DOE expects that the level of contractor’s safety and health program is
instances. In response, DOE notes that adjustments needed to coordinate an effective way to meet the intent of
emergency response and security worker safety and health programs will final rule section 851.11(a)(2)(ii).
personnel would be covered by their be minimal and that wide-scale Section 851.11(a)(3) describes the
respective worker safety and health modifications will not be necessary. required components of the contractor’s
program regardless of their location on DOE received several comments on worker safety and health program.
a DOE site. In facilities leased to the issue of ensuring subcontractor Specifically the section requires that the
community reuse organizations and compliance as required by supplemental program describe how the contractor
their tenants, safety and health proposed section 851.100(b)(9). These will comply with the requirements of
provisions of the lease agreement would commenters (Exs. 16, 28, 31) raised Subpart C of the final rule and how they
apply to the leasee. concerns regarding adequate means of will integrate these requirements with
Two commenters (Exs. 31, 35) enforcing compliance, potential other related site-specific worker
expressed concern about the potential increased costs, and accountability protection activities and with the ISMS.
conflict between the proposed rule’s concerns. One commenter (Ex. 16) Several commenters (Exs. 13, 16, 25,
requirement to tailor the worker safety voiced the concern that flow-down 28, 35, 45, 51, 57) sought clarification
and health program and the need to requirements and monitoring and on the nature and extent of the worker
safety and health program document program approval process. The consistent review and approval
and requested that DOE develop more commenter suggested that the processes by DOE field offices, and to
detailed guidance on what constituted requirements enforceable via the minimize the level of effort required to
an acceptable worker safety and health penalty process should be promulgated develop and obtain program approval.
program. Many of the same commenters in the rule and other contractual These commenters sought specific
(Exs. 27, 28, 35, 45) also questioned requirements enforced via contractual guidance on the DOE Field Office
whether existing worker protection mechanisms. The commenter also noted review and approval process; the
initiatives such as the ISM descriptions, that each contractor’s program would criteria for determining the appropriate
Work Smart Standards, and ‘‘B-List’’ differ, which could lead to enforcement standards needed to achieve the
contract requirements could be used to inconsistencies. DOE notes that the required level of protection; and
fulfill new program requirements. Some enabling legislation makes both civil clarification regarding who had the
were concerned with a potential and contract penalty options available burden of demonstrating ‘‘equivalency.’’
duplication of effort and the resulting to DOE. Civil penalties can be used only DOE notes that Subpart C of the final
cost. One of these commenters (Ex. 28) to enforce regulatory requirements. As rule now provides more specific detail
specifically sought clarification on discussed in connection with on the required content of the program.
whether the new program was to be implementation, regulatory enforcement This detail is consistent with DOE Order
developed based on the outline in necessarily takes into account whether a 440.1A and, as a result, is familiar to
Subpart C and whether a collection of contractor has undertaken necessary DOE contractors. In addition, DOE will
existing safety procedures, plans, and sufficient actions to implement the develop and publish appropriate
guides, and manuals would be sufficient requirements established by the rule. implementation guidance to supplement
to meet the requirement. To address Two commenters (Exs. 5, 51) sought these requirements and to assist DOE
these concerns, final rule section clarification on the reason for DOE Head of Field Elements.
851.11(a)(3) requires the worker safety approval of contractor worker safety and One commenter (Ex. 48) sought
and health program to describe how the health programs. One commenter (Ex. 5) clarification of the role of local DOE
contractor will integrate the asserted that if DOE must approve all field offices in the approval and
requirements of Subpart C of the rule worker safety and health programs and maintenance of the worker safety and
with site-specific worker protection supplemental proposed Subpart E health program. DOE has clarified this
activities and with ISMS. Subpart C provides that only a violation of 10 CFR point in final rule section 851.11(b),
provides more detailed direction on the 851 could result in an enforcement which states that the appropriate Head
required content of the program. This actions, then DOE would be liable if it of DOE Field Element is responsible for
required content is closely aligned with approved a program that review and approval of the submitted
the program requirements of DOE Order inappropriately excluded an element of worker safety and health program. For
440.1A. In addition, final rule section the health and safety program. Another further clarification, DOE has defined
851.13(b) allows contractors who have commenter (Ex. 51) did not agree that the term ‘‘Head of DOE Field Element,’’
implemented a written worker safety DOE approval of the health and safety as used in this rule in final rule section
and health program, an ISM description plan was required, since DOE did not 851.3.
(pursuant to the DEAR Clause), or a adopt responsibility or liability for the Several commenters (Exs. 13, 28, 29,
Work Smart Standard process prior to content of the plan but instead would 39, 45, 51) suggested that the submitted
the issuance of the final rule, to force contractors to make changes to program should be considered approved
continue to implement that program, plans and field actions. The commenter if DOE does not act within the 90-day
description, or process so long as it suggested that submission of a time frame allotted for approval, and the
satisfies the requirements of Part 851 comprehensive safety and health program should be implemented as
and is approved by the appropriate program should be sufficient and should submitted. One commenter (Ex. 13)
Head of DOE Field Element. Further, the include construction health and safety specifically provided 10 CFR 830 as a
existing series of implementation guides issues. The commenter also noted that model for language in this provision.
developed to assist DOE contractors in DOE approval of lower-tier This commenter noted that, according to
implementing the provisions of DOE implementing documents should not be 10 CFR 830, if DOE fails to approve or
Order 440.1A also can assist in mandated or codified. DOE believes that reject the required plan within the
implementation of the rule. Shortly after approving worker safety and health prescribed period, the existing plan is
publication of this rule, DOE anticipates plans is an essential element in carrying by default approved. Another
publishing updated implementation out its statutory responsibilities commenter (Ex. 48) proposed an
guides revised to specifically address concerning worker safety and health. alternate time period for approval and
the provisions of the final rule. DOE notes the rule does not require suggested that plans should be
Section 851.11(b) of the final rule approval of ‘‘lower-tier’’ considered approved by the Cognizant
delineates the responsibilities of the implementation decisions. As Secretarial Officer if they are not
Head of DOE Field Element with respect previously discussed, if these contractor specifically rejected within 180 days of
to evaluation and approval of worker decisions do not result in proper submission. A few commenters (Exs. 25,
safety and health programs within 90 implementation of the rule, the 29, 45, 48) raised the doubt that even if
days of receipt of a contractor contractor will be subject to a contractor submitted a worker safety
submission. This provision further enforcement actions, including the and health program on schedule, any
establishes that the worker safety and imposition of civil penalties. inability of DOE to approve the program
health program and any updates will be Two commenters (Exs. 13, 42) sought could translate to a site or laboratory
deemed approved 90 days after the inclusion of criteria in the rule for being completely shut down which in
submission, if not specifically approved DOE review and approval of the written turn would place a significant risk upon
or rejected by DOE within the approval worker safety and health programs. the contractors. In response to these
timeframe. These commenters felt that such criteria comments DOE has modified the final
One commenter (Ex. 49) sought were needed to ensure consistent rule to clarify in section 851.11(b) that
clarification from DOE on the value of worker safety and health programs worker safety and health programs will
the formal worker safety and health across the DOE complex, to ensure a deemed approved 90 days after
submission if not specifically approved of these commenters (Ex. 5) sought requirements of Part 851 and is
or rejected by the appropriate Head of clarification of what would occur while approved by the appropriate Head of
DOE Field Element. approvals were pending. The rule makes DOE Field Element.
One commenter (Ex. 5) expressed it clear that a contractor cannot proceed, One commenter (Ex. 37) suggested
concern that if DOE required approvals if it has not obtained approval for its that provision should be made in the
and annual updates to the worker safety program. This is necessary to ensure rule to give contractors more time if
and health program, then the Voluntary workplace safety and health. their worker safety and health program
Protection Program (VPP) should be Nevertheless, to decrease any approvals were delayed due to a DOE
eliminated since there would be no unreasonable burden, the rule provides backlog in granting exemptions. This
voluntary portion of the safety and transition for existing programs. commenter felt that supplemental
health program. DOE disagrees with the Several commenters (Exs. 33, 39, 38, proposed section 851.100(b)(5) required
commenter. The DOE VPP status 47, 57) expressed concern that the approved exemptions as a component of
requires contractors to go beyond proposed requirement for a complete the worker safety and health program.
simply complying with the work stoppage on sites due to a lack of The commenter questioned how
requirements of this rule. VPP promotes an approved worker safety and health Congress would respond to a facility
effective, comprehensive worksite safety program failed to take several important shutdown even though the facility was
and health and encourages employers to issues into consideration. Two of these in full compliance with all standards
perfect existing programs (continuous commenters (Exs. 38, 57) asserted that a existing when the 2002 legislation was
improvement). In the VPP, management, complete work stoppage would be an passed. DOE does not intend for
labor, and DOE establish cooperative untoward response to a limited set of program approval to be contingent upon
relationships at workplaces that have pending issues requiring resolution approval of variances. To clarify this
implemented a comprehensive safety (such as an application for an point, DOE has removed the provision
and health management system. exemption) prior to program approval. of the supplemental proposal that
Approval into VPP is DOE’s official These commenters felt that the required that contractors identify
recognition of the outstanding efforts of supplemental proposal ignored the need conditions that require an exemption in
employers and employees who have to continue certain site activities to the program. Further, as discussed in
achieved exemplary occupational safety ensure that facilities and equipment detail in the section-by-section
and health programs. were maintained in a safe configuration. discussion of Subpart D, DOE does not
Yet another commenter (Ex. 37) The same commenters also noted that anticipate that a large number of
questioned how the prime contractor complete work stoppage would give rise variances will be requested under this
would obtain timely DOE approval of to shutdown, maintenance, and startup rule.
changes to the worker safety and health costs, with no benefit to DOE or the Some commenters (Exs. 6, 29, 31)
program when unforeseen emergencies workers. Two commenters (Exs. 38, 47) questioned whether EH had the
were involved. The commenter referred recommended substituting a more resources to review and concur or
to the aging infrastructure of some DOE reasonable and graded approach for the comment on contractor programs from
facilities, which may necessitate proposed ban on all work activities across the DOE complex in time to
emergency repairs to utilities and should the provision be maintained. preclude work stoppage. One
immediate mitigation under direct DOE has carefully considered these commenter (Ex. 29) requested that the
onsite safety coordination without the comments, but has not revised this Cognizant Secretarial Officer (CSO)
luxury of written safety planning. In provision of the rule. Contractors should approval process be detailed in the rule,
response to this concern, DOE notes that already have a worker safety and health and questioned whether there would be
the intent of its program is to establish program in place under existing contract onsite review and validation by an
implementation procedures for requirements. DOE believes that 470 external DOE team similar to the ISM
identifying and controlling hazards. The days is sufficient for contractors to come verification process. This commenter
program itself does not list of all into compliance with the rule, including also questioned how the contractor
hazards with control mechanisms for adjusting their existing programs if would be notified if the Cognizant
each hazard. Therefore, the program needed. Secretarial Officer delegated approval
does not need to be updated each time A few commenters (Exs. 33, 39, 45, authority to the Site Manager. DOE
a new hazard is identified; rather, it 47) expressed the concern that this acknowledges these concerns and has
must be updated only when a new provision of the rule fails to streamlined the approval process in the
process is added or a different type of acknowledge that many sites have final rule. Specifically, final rule section
hazard is introduced (or another approved ISM, Voluntary Protection 851.11(b) establishes the Head of DOE
significant change occurs) that is not Program, and human performance Field Element as the approval authority
effectively addressed through the programs already in place that meet or for worker safety and health programs.
procedures established in the program. exceed DOE requirements for worker The rule no longer requires review and
Section 851.11(b)(1) of the final rule protection. The commenters consultation by the Assistant Secretary
stipulates that beginning one year after recommended that a mechanism for for Environment, Safety and Health, nor
the date of publication of the final rule, approving programs that have does it provide for delegation of
no work may be performed at a covered undergone ISM verification should be approval authority; however,
workplace unless an approved worker included in the rule. DOE agrees with contractors must send copies of their
safety and health plan program is in these commenters and has clarified in approved programs to the Assistant
place for the workplace. DOE received final rule section 851.13(b) that Secretary under final rule section
numerous comments about work contractors who have implemented a 851.11(b)(2). DOE does not envision the
stoppage on sites due to lack of approval written worker safety and health use of external DOE onsite review and
of worker safety and health programs. program or ISM description or Work validation teams as part of the program
Two commenters (Ex. 5, 29) questioned Smart Standard process prior to the approval process. As discussed in the
if the ‘‘entire contractor work ceases’’ if effective date of the final rule may section-by-section discussion for
DOE does not approve a contractor’s continue to implement that program/ Subpart E, DOE will use onsite
worker safety and health program. One system so long as it satisfies the inspections as a tool to verify program
implementation and compliance with list of changes that would automatically industry. DOE disagrees with these
other provisions of the rule. trigger a program update. Rather, DOE commenters and points out that while
Many commenters (Exs. 28, 39, 45, intends for contractors to consider there is no standard that requires private
51) sought clarification on the specific work-site or process changes in light of sector employers to update their safety
contract provision DOE expects to use to their current programs and determine if and health programs annually, it is a
direct a contractor to stop work, their programs effectively address the common practice among responsible
pointing out that a contractor may not change. If the answer is no, then the employers and is consistent with the
stop performance on a contract without change would be considered protection DOE wants to afford its
direction from the DOE contracting ‘‘significant’’ and thus necessitate an contractor employees.
officer per DEAR 970.5204–2(g). DOE update to the program. One commenter (Ex. 29) requested
notes that the stop work authority in the DOE received numerous comments on clarification on whether the annual
regulation is independent from the the supplemental proposal requirement submittal was based on the calendar or
contract’s provisions. Compliance for triennial (36-month) internal audits fiscal year. Unless otherwise specified,
orders by the Secretary represent an of the worker safety and health program. annual updates should coincide with
exercise of AEA authority, while stop One commenter (Ex. 30) supported the the anniversary date of the initial
work authority in subpart C is a provision but noted that the results approval. This will alleviate having all
regulatory mechanism. should also be transmitted to employees updates being submitted at the same
Section 851.11(b)(2) of the final rule and their representatives. The majority time.
describes contractor responsibilities of the commenters (Exs. 5, 13, 16, 28, Two commenters (Exs. 36, 42) sought
with respect to distribution of the 29, 31, 35, 36, 39, 42, 48, 49), however, clarification of whether the rule
approved worker safety and health disagreed strongly with the need for this required DOE approval of the annual
program to the DOE Assistant Secretary requirement citing reasons ranging from submission and if so, within what time
for Environment, Safety and Health. As a lack of a clear specification of the periods. The commenters expressed
discussed above, this provision replaces required scope of the audit to concerns concern that the requirement for annual
the proposed rule’s provision requiring regarding administrative burdens and approval could result in work stoppages
the Assistant Secretary’s consultation increased costs. DOE has considered as contractors wait for approvals. One of
during the program approval process. and agrees with many of these concerns; these commenters (Ex. 36) proposed that
Section 851.11(b)(3) of the final rule accordingly, DOE has deleted the the rule should require DOE approval
describes contractor responsibilities provision requiring 36-month internal within 30 days after contractor
with respect to distribution of the audits and audit report submission from submittal. Under 851.11(b) of the final
approved worker safety and health the final rule. rule, any updates must be approved 90
program to affected workers or their Section 851.11(c)(2) of the final rule days after submission. Until the updates
designated worker representatives upon describes contractor requirements for are approved, a contractor should
written request. DOE’s intent with this annual submission of updates to the continue to operate under its prior plan.
requirement is to facilitate worker safety and health program or, Several commenters (Exs. 19, 31, 36,
implementation and enforcement of the alternatively, a letter stating no changes 39, 42, 48) expressed concern that
rule. In addition, this section ensures are necessary in the currently approved additional substantial costs would be
that workers and their representatives program. One commenter (Ex. 49) associated with meeting the requirement
have access to information related to the recommended that the requirement for for annual reviews. These commenters
protection of their health during the an annual submission be eliminated recommended that impacts be
performance of DOE activities. DOE from the rule. The commenter argued considered prior to codification. DOE
added this provision to the final rule in that once a worker safety and health prepared an Economic Analysis for the
response to commenters’ requests to program is developed, there should be final rule. The analysis was conducted
clarify the management responsibilities no requirement to submit an annual at 8 DOE sites (representatives of each
and worker rights specified in final rule update. The commenter also felt this type facility) and based its cost
section 851.20. These commenters’ requirement was inconsistent with 10 estimation methodology on a
concerns are discussed in greater detail CFR 835, which only requires DOE comparison of the requirements of this
in the section-by-section discussion for approval of the Radiation Protection Part (10 CFR 851) with DOE Order
final rule section 851.20. Program if changes decrease the 440.1A. Overall, the bulk of these costs
Section 851.11(c)(1) of the final rule effectiveness of the program. The are attributable to requirements for
describes contractor requirements for commenter asserted this requirement converting medical records to electronic
submission of periodic updates to the appeared to be a purely paperwork format, the compiling and submitting of
worker safety and health program to the requirement, which added no safety and written safety and health plans, and the
Head of DOE Field Element for review health benefit to the process. DOE does submission of annual updates. Several
and approval whenever a significant not agree with this comment. The scope sites indicated substantial costs for
change or addition to the program is of the radiological work environment is maintenance of complete and accurate
made or a change in contractors occurs. very specific and controls are well- hazard and exposure information, for
One commenter (Ex. 29) requested defined. On the other hand, the non- communication of safety information to
clarification of what would constitute radiological work environment is labor unions, and for implementation of
‘‘significant changes or additions’’ to the transitory in nature and covers a wide the electrical safety program. It is
worker safety and health program. The range and large number of hazards. For estimated that the annualized costs for
commenter inquired whether worker this reason, DOE contractors must 25 DOE contractor sites to comply with
safety and health programs had to be annually assess the nature of the the final rule are, therefore, likely to fall
submitted if significant changes workplace and the effectiveness of their in the range between $9.7 million (low
occurred before the annual review cycle. programs. Two other commenters (Exs. estimate) to $24.8 million (high
In response, DOE notes that these terms 3, 4) asserted that the requirement for estimate). Other commenters (Exs. 5, 45,
are subjectively applied in determining annual evaluation and updating of the 51) proposed use of the Voluntary
if an update to the program is needed. worker safety and health program was Protection Program Star site annual
DOE does not envision a ‘‘cookbook’’ inconsistent with practices in general report and ISM annual self-evaluations
to meet the requirement for annual associated labor organizations of the One commenter (Ex. 42) suggested
evaluations. The commenters also development and implementation of the that any DOE implementation guidance
proposed integration of the submissions worker safety and health plan and to be developed for the rule should only
associated with the worker safety and updates and, upon request, bargain with be enforceable if a contractor elects to
health program proposed in this rule the labor organizations on place those requirements in the worker
with the requirements of these other implementation of Part 851 in a manner safety and health program plan
programs in order to reduce costs. DOE consistent with Federal labor laws. This submitted to DOE. DOE agrees with this
notes that a contactor may use these section is included to ensure that suggestion and confirms that worker
programs if they meet the requirements worker safety and health programs are safety and health guidance materials
of this rule, and are approved by the developed and implemented consistent would only be enforceable against a
Head of DOE Field Element. with the requirements imposed by the DOE contractor if included in the
Section 851.11(c)(3) of the final rule National Labor Relations Act (NLRA) on contractor’s approved program. DOE
describes contractor requirements for employers in this context, and not to notes that a guidance document is
incorporating changes, conditions, or create obligations in excess of those that intended to be informative but not
standards into the worker safety and would be found in such circumstances mandatory. However, while a contractor
health program as directed by DOE. Two under the NLRA. need not follow the approach in a
commenters (Exs. 15, 27) suggested that DOE included this provision in the guidance document, the contractor does
to ensure consistency between this final rule in response to concerns raised have an obligation to regulatory
provision and existing DEAR clauses about the need for involvement of requirements in the rule and the worker
and contract terms and conditions, the workers or worker representatives in the safety and health programs approved by
following language should be added to development and implementation of DOE by taking actions that are necessary
the final rule: ‘‘* * * consistent with contractor worker safety and health and sufficient to achieve full
DEAR 970.5204–2, Laws, Regulations programs. Specifically, one commenter compliance. Failure to take such action
and DOE Directives (December, 2000) (Ex. 54) expressed concern that could be grounds for an enforcement
and associated contract clauses.’’ supplemental proposed section 851.101 action.
Similarly, other commenters (Exs. 16, did not include the means for workers Section 851.12(b) of the final rule
36, 42, 49) questioned the or their representatives to be involved in further notes that nothing in Part 851
appropriateness of this provision in a the development of worker safety and precludes contractors from taking
regulatory enforcement document. DOE health programs. The means for workers additional protective action determined
notes that Part 851 establishes or their representatives to be involved in necessary to protect the safety and
regulatory requirements and is the development and implementation of health of workers. This section
independent of any contractual the worker safety and health programs recognizes that, depending on the
requirements. Accordingly, the are noted in the following sections. circumstances of the work, responsible
obligation of a contractor to implement employers may have to take other
Section 851.12—Implementation
the regulatory requirements in Part 851 actions to protect their workers. DOE
is not dependent on the existence of a Section 850.12(a) of the final rule does not intend to preclude such actions
contractual obligation. In response to requires contractors to implement the by the provisions of the rule. DOE
the comments, DOE has modified final requirements of Part 851. Three recognizes that individuals responsible
rule section 851.11(c)(3) to make it clear commenters (Exs. 28, 45, 51) suggested for implementing worker safety and
that any contractual action directed by that the worker safety and health health must use their professional
the Department must be consistent with program should include an judgment in protecting the safety and
these regulatory requirements. implementation schedule, since all health of workers; nothing in the rule
A few commenters (Exs. 16, 42, 48) activities required by the program should be viewed as relieving these
sought clarification of how the potential cannot be implemented upon individuals of their professional
changes envisioned in this section of the approval—especially with respect to responsibility to take whatever actions
rule would be directed. One commenter subcontractor implementation of the are warranted to protect the health and
(Ex. 42) recommended that changes to contractor’s approved program. In safety of the workforce.
the worker safety and health program response to the commenters’ concern,
plan be agreed to by both the contractor DOE notes that final rule section Section 851.13—Compliance
and DOE. Another commenter (Ex. 48) 851.11(a) requires contractors to submit Section 850.13(a) of the final rule
questioned whether only the Cognizant the worker safety and health program requires contractors to achieve
Secretarial Officer would be authorized for approval within 380 days of the final compliance with all requirements of
to direct the incorporation of standards publication date of the rule; final rule Subpart C of Part 851 and their
into the contractor’s worker safety and section 851.11(b) ensures DOE approval approved worker safety and health
health program. A third commenter (Ex. of the plan within 90 days of receipt of programs no later than 470 days after
16) sought clarification of whether DOE the contractor’s submission; and final the date of publication of the final rule
direction would emanate from the same rule section 851.13(a) allows contractors in the Federal Register.
organizational level that is specified for to achieve compliance with the Several commenters expressed
approval of exemptions. DOE approved worker safety and health concern over the supplemental proposal
acknowledges these concerns and program within 470 days of the requirement for compliance with the
clarifies its intent with the provision publication date of the rule. DOE rule by January 26, 2006, suggesting that
under final rule section 851.11(c)(3) that believes this implementation schedule the date be modified (Exs. 13, 25, 29, 36,
the Head of the DOE Field Element will provides sufficient time for contractors 42, 45, 51, 57) and recommending
direct the incorporation of changes into to achieve compliance with the final alternate lengths of time for
contractors’ worker safety and health rule requirements, particularly since the implementation from 180 days after
programs consistent with the approval rule closely mirrors DOE Order 440.1A, plan approval (Ex. 47) to one year
authority established in section 851.11. an order that has been in place for over following rule promulgation (Exs. 28,
Section 851.11(d) of the final rule a decade, and contractors are familiar 49). DOE has clarified in final rule
requires the contractor to notify any with its requirements. section 851.13(a) that contractors must
achieve compliance within 470 days comments touched on issues with safety and health publications; the DOE-
after the date of publication of the rule. broader implications that were approved worker safety and health
Section 850.13(b) of the final rule applicable to this section, as well as to program for the covered workplace; the
allows contractors who have established other requirements established standards, controls and procedures
written worker safety and health elsewhere in this final rule (or other applicable to the covered workplace; the
programs, ISM descriptions pursuant to rules). Modifications made to section safety and health poster that informs the
the DEAR Clause, or an approved Work 851.20 in this final rule complicated worker of relevant rights and
Smart Standards process before the date categorization of the comments on a responsibilities; recordkeeping logs (to a
of issuance of the final rule to use them provision-by-provision basis. Thus, limited extent); and the appropriate
to meet the worker safety and health comments on this section are grouped DOE form that contains the employee’s
program requirement of this part if those by general topic or sentiment and are name as the injured or ill worker; (3) be
programs, descriptions, and processes preceded by the following summary of notified when monitoring results
are approved by the Head of the DOE both sections 851.20(a) and 851.20(b) in indicate the worker was overexposed to
Field Element. This approval by the the final rule. hazardous materials; (4) observe
Head of the DOE Field Element is Section 851.20(a) requires a contractor monitoring or measuring of hazardous
contingent upon the contractor to ensure its managers at a covered agents, and have the results of their own
providing written documentation which workplace (1) establish written policy, exposure monitoring; (5) have an
identifies the specific portions of these goals, and objectives for the worker employee-authorized representative
programs, descriptions, and processes safety and health program; (2) use accompany DOE personnel during an
that are applicable, and additional qualified worker safety and health staff inspection of the workplace or consult
requirements or implementation (e.g., a certified industrial hygienist) to directly with the DOE personnel if no
methods to be added in order to satisfy direct and manage the program; (3) representative is available; (6) request
the requirements of this Part to establish assign worker safety and health program and receive results of inspections and
a safe and healthful workplace. If an responsibilities, evaluate personnel accident investigations; (7) express
existing program is used to meet the performance, and hold personnel concerns related to worker safety and
requirement for a worker safety and accountable for worker safety and health health; (8) decline to perform an
health program, the contractor has a performance; (4) provide a mechanism assigned task because of a reasonable
regulatory obligation to comply with to involve workers and their elected belief that, under the circumstances, the
that program. representatives in the development of task poses an imminent risk of death or
One commenter (Ex. 27) requested the worker safety and health program serious bodily harm coupled with a
that a grandfather provision be added goals, objectives, and performance reasonable belief that there is
for existing programs developed under measurement and in the identification insufficient time to seek effective
the Work Smart Standards program. and control of hazards in the workplace; redress through the normal hazard
DOE notes that a grandfather provision (5) provide workers with access to reporting and abatement procedures;
for existing programs is established information relevant to the worker and (9) stop work on discovering
under final rule section 851.13(b). This safety and health program; (6) establish employee exposures to imminently
provision was added to address procedures for workers to report, dangerous conditions or other serious
comments (Exs. 15, 20, 26, 27, 29, 45, without reprisal, job-related fatalities, hazards, provided that any stop work
51) regarding DOE’s intent to injuries, illnesses, incidents, and authority is exercised in a justifiable
acknowledge or accept contractor efforts hazards and make recommendations
and responsible manner in accordance
related to existing worker protection about appropriate ways to control those
with established procedures.
initiatives within the DOE community hazards; (7) provide for prompt
response to such reports and The comments provided to DOE on
as part of the worker safety and health section 851.20 covered a wide range of
program required under this rule. recommendations; (8) provide for
regular communication with workers issues. Most related directly to the
C. Subpart C—Specific Program about workplace safety and health management responsibility and workers’
Requirements matters; (9) establish procedures to rights provisions of this section. Certain
permit workers to stop work or decline comments, however, related only
Section 851.20—Management tangentially to section 851.20 (usually
Responsibilities and Workers Rights and to perform an assigned task because of
a reasonable belief that the task poses an on the basis of workers’ rights) and
Responsibilities sometimes resulted in modifications to
imminent risk in circumstances where
Section 851.20 establishes there is insufficient time to use normal other sections of this rule. For example,
management responsibilities and hazard reporting and abatement several commenters (Exs. 10, 30, 40, 54,
workers’ rights related to worker safety procedures; and (10) inform workers of 55, 60) requested the incorporation of
and health in the workplace. Contractor their rights and responsibility by various worker rights related to the
managers must commit to the safety and appropriate means, including posting variance process. In general, DOE agrees
health of their workforce. Section the DOE-designated Worker Protection that workers should be involved in the
851.20(a) codifies managers’ Poster. variance process and has included
responsibilities, while final rule section Workers at DOE sites currently have specific rights related to this process in
851.20(b) codifies workers’ rights. DOE a number of rights related to ensuring a subpart D to the final rule. A more
received a substantial number of safe and healthful workplace as detailed discussion of these comments
comments on section 851.20 (previously specified under DOE Order 440.1A. and DOE’s responses appears in the
supplemental proposed section 851.10). Section 851.20(b) codifies these rights section-by-section discussion for
Although many of the comments were and makes it clear that workers may Subpart D. Similarly, a commenter (Ex.
couched in terms of workers’ rights, a exercise them without fear of reprisal. 11) believed that worker rights should
large proportion actually related to a Specifically, the regulations maintain include the right to receive and
combination of workers’ rights and the rights of workers to (1) participate in participate in training required by
management responsibilities toward activities described in section 851.20 on OSHA standards and other
worker safety and health. Other official time; (2) have access to DOE requirements. The commenter expressed
concern that no provision exists in the to section 851.20 as a whole, or that the worker safety and health program
rule to train workers in hazard relate to multiple provisions of this goals, objectives, and performance
recognition such that they can recognize section. In one such comment (Ex. 30), measures, and in the identification and
hazards posing ‘‘imminent risk of death the commenter requested that the term control of hazards in the workplace.
or serious bodily harm.’’ The final rule ‘‘worker’’ be defined as an hourly Additionally, section 851.20(b)(7)
as specified in section 851.23 requires worker who performs line functions in establishes the right for workers to
compliance with OSHA standards areas to be inspected. Additionally, the express concerns related to worker
(including standards that specify commenter believed that the definition safety and health. For issues that
training requirements). In addition, the of ‘‘worker’’ should not include lawyers, involve rulemaking regarding worker
final rule contains more detailed supervisors, and managers for the exposure to a hazardous substance, the
provisions for training, in final rule contractor, since managerial and legal Administrative Procedures Act gives the
section 851.25, which requires personnel have an interest in public (including workers) the right to
employers to implement a training minimizing penalties and cannot best comment on rulemaking activities; DOE
program for workers. represent worker interests during does not believe it necessary to address
The same commenter (Ex. 11) inspections. As discussed previously, this issue more specifically in the rule.
believed that worker rights should also worker has been defined to be DOE received several comments
include the right to contact the National contractor employees performing work related to retribution and reprisal as a
Institute for Occupational Safety and at a covered workplace in furtherance of result of workers exercising their rights.
Health (NIOSH) to request a health a DOE mission. Seven commenters (Exs. 11, 21, 30, 40,
hazard evaluation (HHE) based on A few commenters (Exs. 40, 47, 55)
44, 60, 62) expressed concern over
concerns about toxic effects of a asserted that the rule should incorporate
retribution against workers who report
workplace substance. DOE notes that 42 worker involvement in the development
violations, injuries, and unsafe work
CFR 85 allows employers or authorized of worker safety and health programs.
conditions and felt the regulation
representatives of employees to request One of the commenters (Ex. 47) believed
should preclude discrimination against
HHEs by NIOSH under section 20(a)(6) that supplemental proposed section
any employee for notifying DOE or
of the Occupational Safety and Health 851.10 should be revised to indicate that
requesting an investigation. An eighth
Act of 1970. Hence, DOE feels it is not it is not just a workers’ right, but also
commenter (Ex. 15) qualified a similar
necessary to separately address this their responsibility to comply with the
concern by suggesting that security- and
issue in this rule. provisions in supplemental proposed
Another commenter (Ex. 29) section 851.10. The commenter confidentiality-related issues be
questioned whether supplemental recommended that the section be considered in granting worker rights.
proposed section 851.10 on worker renamed ‘‘Worker rights and This commenter suggested that section
rights would conflict with 10 CFR 708 responsibilities.’’ DOE agrees with this 851.20(b) include language that allows
(DOE Contractor Employee Protection comment and has renamed section the worker rights without reprisal, as
Program). The commenter also 851.20 of the final rule ‘‘Management long as their actions are ‘‘consistent
wondered whether 10 CFR 708 would responsibilities and worker rights and with non-disclosure, confidentiality and
continue to apply to worker rights with responsibilities’’ to highlight the security requirements.’’ One commenter
respect to nuclear and radiological collaborative nature of the worker safety (Ex. 62) supported anonymous
safety issues once supplemental and health process. As a related notifications and complaints by workers
proposed section 851.10 was in effect modification, DOE has named the to DOE enforcement staff without fear of
for all other safety and health issues. subsection on workers rights—section disclosure of identity to non-
DOE believes that the final rule has no 851.20(b)—‘‘Workers Responsibilities enforcement personnel. This commenter
impact on the applicability of 10 CFR and Rights.’’ Furthermore, final rule suggested that standardized forms to be
708. Specifically, 10 CFR 708 still section 851.20(a)(4) requires created for this purpose with an explicit
applies to complaints of reprisals management to provide a mechanism to option for the complainant to select
against DOE contractor employees involve workers and their elected anonymity. Furthermore under the
under certain conditions. In particular, representatives in the development of Privacy Act the commenter proposed
it applies for employee disclosures, the worker safety and health program that penalties should apply to
participations, or refusals related to goals, objectives, and performance individuals who breach the employee’s
safety and health matters, if the measures and in the identification and right to confidentiality in making a
underlying procurement contract control of hazards in the workplace. complaint. This commenter argued that
(described in 10 CFR section 708.4) DOE also included provision such breaches should be considered as
contains a clause requiring compliance 851.20(a)(8), which requires managers to civil violations. DOE addresses these
with all applicable safety and health provide for regular communication with concern related to retribution and
regulations and requirements of DOE workers about workplace safety and reprisal in the final rule by including
(48 CFR 970.5204–2c). Furthermore, 10 health matters. sections 851.20(a)(6), 851.20(b)(7), and
CFR 708 provides employees with a Also concerned with worker rights, 851.20(b)(9). The first of these three
mechanism to obtain restitution from one commenter (Ex. 11) suggested that requires management to establish
the contractor in the event of a finding workers be given the right to provide procedures for workers to report,
of a reprisal under the 10 CFR 708 rule, comments or testimony on possible without reprisal, job-related fatalities,
but does not allow for civil or contract toxic effects of substances in the injuries, illnesses, incidents, and
penalty against the contractor for workplace. DOE agrees that workers hazards and make recommendations
violation of the workers’ safety and should be able to provide input on about appropriate ways to control those
health rights. This final rule provides matters that affect them, and this final hazards. Sections 851.20(b)(7) and
DOE with the mechanism to assess civil rule contains provisions to further this 851.20(b)(9) give workers the right,
or contract penalties against contractors objective. Section 851.20(a)(4) requires again without reprisal, to express
in such cases. management to provide a mechanism to concerns related to worker safety and
As was mentioned previously, DOE involve workers and their elected health and to stop work if they discover
received numerous comments that relate representatives in the development of employee exposures to imminently
dangerous conditions or other serious responsibilities by appropriate means, worker safety and health committees.
hazards. DOE notes that each of these including posting the DOE-designated DOE, through final rule section
provisions are enforceable under the Worker Protection Poster in the 851.20(a)(4), requires management to
rule and that contractors are subject to workplace where it will be accessible to provide a mechanism to involve
both civil and contract penalty for all workers. Although the contractor workers and their elected
noncompliance with these provision. may provide electronic access to the representatives in the development of
Further, provision 851.40(c) allows poster, it must still post the poster in the worker safety and health program
workers or worker representatives to areas accessible to workers. DOE further goals, objectives, and performance
remain anonymous upon filing requests strengthened workers’ right to measures, and in the identification and
for investigation or inspection. information through final rule section control of hazards in the workplace.
Notwithstanding a worker’s right to 851.20(b)(6), which allows workers to Further, the final rule, as specified in
remain anonymous, DOE notes that request and receive results of inspection section 851.11(d), requires contractors
penalties could not be assessed under and accident investigations. to give labor organizations representing
the Privacy Act. Such a complaint Two commenters (Ex. 29, 60) thought workers for collective bargaining timely
would not be a part of a system of it important that the worker safety and notice of development and
records and would not be placed in any health program be available to workers. implementation of the worker safety and
sort of file identifiable by name, In response to these comments, final health program and any updates, as well
employee number or other unique rule section 851.20(a)(5), DOE requires as bargain on implementation issues in
identifier. Without those two that management provide workers with a manner consistent with federal labor
qualifications, such a complaint would access to information relevant to the laws upon timely request.
not be covered by the Privacy Act. worker safety and health program. DOE Several commenters (Exs. 11, 30, 44,
Several commenters asked DOE to leaves to the contractor the discretion to 60, 62) requested that workers have the
clarify or expand the rule to improve the determine the appropriate format, right to participate in enforcement
flow and exchange of information and which must be accessible to all workers. actions. Three of these commenters
documentation. For example, one DOE considers electronic means (Exs. 44, 60, 62) recommended that
commenter (Ex. 54) requested that the accessible, provided that all employees citations be posted and that employees
rule require communication pathways have access to, and the knowledge to be given the opportunity to comment on
between contractors, workers, DOE, and use, computers. proposed enforcement actions. One of
worker representatives. DOE agrees with Still considering the flow and these commenters (Ex. 62) argued that
this comment and the final rule exchange of information, two such provisions were comparable to
includes section 851.20(a)(8), which commenters (Exs. 16, 29) requested worker rights related to OSHA
requires contractors to provide for clarification on what DOE considers to enforcement actions. Another
regular communication with workers be the ‘‘DOE safety and health commenter (Ex. 30) asked that DOE
about worker safety and health matters. publications’’ and the ‘‘standards, incorporate worker participation as a
DOE will also provide guidelines to controls, and procedures’’ that were party in settlement agreements. The
assist contractors in developing specified in supplemental proposed fourth commenter (Ex. 11) asserted that
appropriate communication methods in section 851.10(b)(1). In a related workers should have the right to be
guidance materials to be published question, one of these commenters (Ex. involved in any meetings or hearings to
shortly after promulgation of this final 29) asked whether the documents to discuss objections the employer has to
rule. DOE believes, however, that which workers must be provided access, allegations of safety and health
stipulating the exact means and as specified in supplemental proposed violations, the assessment of penalties,
methods for achieving this section 851.10(b)(1), may be provided and/or discussions or changes in
communication in an enforceable ‘‘on request’’ or whether they must abatement plans, procedures, or
regulation would be unnecessarily always be available. The commenter deadlines. DOE notes that Part 851’s
restrictive, could undermine existing noted that the documents sometimes enforcement process is based on one
communication mechanisms, and could include costly ANSI standards. DOE that has been successfully used for over
hinder contractor creativity in future intends the documents to be available ten years with respect to the DOE
program development efforts. and provided upon request to Nuclear Safety Requirements, a process
Several commenters (Exs. 13, 16, 29, employees for review. DOE does not which does not contemplate such
30, 36, 37, 54, 62) expressed concern intend for the employer to provide each participation. DOE further notes that the
over worker rights to various forms of employee with his/her own copy of the OSHA enforcement process does not
information, as well as manager standards. Note that DOE would expect involve employee participation to the
obligations to provide workers with the contractor to have access to (or degree requested by the commenters. In
certain information. One commenter copies of) all the standards with which addition, section 851.40(c) does provide
(Ex. 62) requested that employers the contractor must comply. worker representation, such as the right
should be required to post a DOE Safety In a more general comment about the to request the initiation of an inspection
Rule Notification Poster describing Part right of worker representatives to have or investigation. DOE concludes that the
851 that would inform workers of rule the same access to information as degree of employee participation in the
provisions, the penalties of non- workers, two commenters (Exs. 11, 54) enforcement process is appropriate and
compliance, how to obtain more recommended that the rule clearly state that the specific commenter requests for
information and an 800 toll-free number that disclosure affects workers and their additional worker involvement in the
to call. In addition, the commenter unions. Specifically, these commenters enforcement process would not be
supported the idea of informative believe that worker representatives appropriate.
workshops to explain the rule to should have the right to request DOE received several comments
workers as part of training programs. information, observe monitoring, regarding multiple issues related to
DOE addresses this concern in the final request relevant exposure and medical exposure monitoring. Three commenters
rule by including section 851.20(a)(10), records and receive results within 15 (Exs. 16, 54, 55) worried that the
which requires contractor managers to days, participate in the worker safety language in supplemental proposed
inform workers of their rights and and health process, or create joint section 851.10(b)(3), which would give
workers the right to observe monitoring all potential hazards before they are that workers are entitled to reasonable
or measuring of hazardous agents, could exposed, and not only when there is assurances that the inspections are
be misinterpreted. Specifically, the overexposure as specified in carried out in an appropriate manner
commenters believed this section could supplemental proposed section and notes that in final rule section
be interpreted as implying that specific 851.10(b)(2). DOE notes that the 851.40(d) includes provisions for
monitoring is required for each reference to ‘‘overexposure’’ in final rule notifying contractors of an enforcement
individual worker (instead of allowing section 851.20(b)(3) applies specifically inspection. DOE believes, however, that
representative sampling), or as to notification of monitoring results. establishing qualification standards for
suggesting that contractors do not have Other sections of the rule—sections DOE federal staff is beyond the scope of
to share monitoring results with 851.20(b) and 851.25—require employee this rule; instead, DOE will follow
unmonitored workers performing the training and access to information on appropriate personnel qualification
same job. These commenters felt that workplace hazards and controls. standards for federal staff. DOE also
representative sampling results should The right of workers to participate in believes that establishing detailed
be provided to all affected workers. monitoring and inspection activities provisions on how contractors must
However, two other commenters (Exs. attracted several comments. DOE implement specific provisions of the
26, 49) disagreed, asserting that the received several comments (Exs. 13, 16, rule (such as how to notify workers of
requirement should be limited to 29, 36, 42, 49, 57) expressing the general an inspection) would be too
providing workers with only their own concern that workers would abuse the prescriptive. DOE believes that
results, in keeping with the Privacy Act. rights afforded to them in sections contractors are the entities best able to
The commenters believed that workers 851.20(b)(1), (b)(4), and (b)(5), which determine appropriate implementation
are unlikely to be qualified to interpret give workers the right to participate in procedures for their own sites and
monitoring results for the whole activities, observe monitoring results, workforce. Of course, contractor failure
workplace. To ensure timely transfer of and accompany DOE personnel during to comply with the worker rights
information, one commenter (Ex. 16) an inspection. The commenters felt that provisions of the final rule could subject
recommended that DOE specify a time these activities could result in the contractor to an enforcement action
frame within which a contractor should disruption of work. DOE notes the under the rule.
provide employees with exposure commenters concerns and has modified DOE also received comments related
results (e.g., results of applicable the language in the final rule. to worker rights after inspections are
exposure monitoring must be provided Worker rights and employer completed. Two commenters (Exs. 36,
to employees within 90 days following responsibilities during inspections also 49) expressed concern about a worker’s
analysis). Further, one commenter (Ex. attracted a number of comments. Many right to request and receive results of
commenters (Exs. 11, 13, 29, 36, 39, 42, inspection and accident investigations.
49) believed that allowing workers to
47, 49, 54, 57) expressed concern about One of these commenters (Ex. 36)
enter operational areas ‘‘to observe
a worker’s right to accompany DOE described the current policy of some
monitoring’’ conflicts with the exposure
personnel during an inspection of the facilities to allow workers to obtain such
reduction and minimization aspects of
workplace. The commenters believed results on a need-to-know basis only.
Part 850 and RADCON As Low As
that the rule should include access The other commenter (Ex. 49) believed
Reasonably Achievable Principles. With
requirements to be met in order to that workers can only request and
respect to Privacy Act concerns, DOE
accompany DOE personnel on receive results that are not exempt from
notes an individual’s test results would
inspection. For example, commenters disclosure under the Privacy Act or the
be protected. The only way that test
recommended that a designated Freedom of Information Act. An
results could be disseminated to all employee representative or an additional commenter (Ex. 29)
workers in an aggregated manner is if appropriate safety person, organization, questioned whether these ‘‘results’’
they are complied with the following or entity should accompany DOE on include DOE records or just contractor
language pursuant to 5 U.S.C. 552(b)(5): inspections. DOE agrees that the records. DOE notes that a worker can
Disclosure may be made to a recipient individual accompanying inspectors only receive information or results, for
who ‘‘* * * has provided the agency should not be selected arbitrarily. In the his or her own personal record. The
with advance written assurance that the final rule, section 851.20(b)(5) requires worker must designate in writing a
record will be solely used as a statistical that an ‘‘employee-authorized representative to receive personal
research or reporting record, and the representative’’ be allowed to to information.
record is to be transferred in a form that accompany DOE on inspections. When One commenter (Ex. 11) believed that
is not individually identifiable.’’ no representative is available, the worker rights should include the right to
DOE received two comments on the inspector must consult with employees request action from an employer to
use of the term ‘‘overexposure’’ as it on matters of worker safety and health. correct hazards or violations even if the
relates to employee notification of Further, section 851.40(c) of the final hazards are not violations of specific
results exceeding allowable exposure rule establishes the right of worker OSHA standards or other specific
levels. One of these commenters (Ex. 54) representatives to request an inspection requirements. DOE notes that final rule
suggested that the phrase ‘‘was or investigation, with supporting section 851.20(b)(7) gives workers the
overexposed to hazardous materials’’ in documentation, based on criteria right to express concerns about worker
supplemental proposed section outlined in the section. safety and health issues. DOE intends
851.10(b)(2) be replaced with ‘‘exposure In a related comment, two of the same for this section to include all health and
exceeded limits established by OSHA.’’ commenters (Exs. 13, 29) suggested that safety concerns, not just hazards
DOE disagrees, that a change in wording allowing workers to go on DOE addressed by specific OSHA standards.
is necessary since the term overexposed inspections raises implementation DOE received two comments related
is commonly understood to mean concerns (for example, regarding worker to proposed provisions, retained as
exposures above an established limit and contractor notification of sections 851.20(a)(9) and 851.20(b)(9) in
(whether set by OSHA, ACGIH, or DOE). inspections and inspector qualification this final rule, which respectively cover
The other commenter (Ex. 11) believes standards to ensure consistency of managers’ responsibilities and workers’
that employees should be informed of inspections across facilities). DOE notes rights to stop work when a serious
hazard is discovered or believed to be work provisions. Within this document assessment for workplace
present. One commenter (Ex. 28) framework, DOE contractors are free to hazards using recognized exposure
objected to the use of the word develop stop work procedures that they assessment and testing methodologies
‘‘discover’’ in supplemental proposal feel most effectively protect workers and using accredited and certified
section 851.10(b)(8), believing that such (and empower workers to protect laboratories; (3) record observations,
a term suggests willful deceit or themselves) and allow for prompt testing and monitoring results; (4)
ignorance on the part of managers. The corrective action in the event of an analyze designs of new facilities and
commenter stated that while stop work imminent danger situation. Since this modifications to existing facilities and
authority is needed, it should be provision has been required of DOE equipment for potential workplace
implemented in a controlled manner in contractors under DOE Order 440.1A for hazards; (5) evaluate operations,
accordance with ‘‘established the past 10 years, DOE would expect procedures, and facilities to identify
procedures, which include but should contractors to apply existing stop work workplace hazards; (6) perform routine
not be limited to pre-work briefings of procedures with slight modifications if job activity-level hazard analysis; (7)
prevailing working conditions.’’ DOE deemed necessary based on lessons review site safety and health experience
intends for the term ‘‘discover’’ in final learned from 10 years of experience information; and 8) consider interaction
rule section 851.20(b)(9) to imply that implementing this provision. between workplace hazards and other
the hazard was not previously identified hazards such as radiological hazards.
Section 851.21—Hazard Identification Most of the comments that DOE
through workplace assessment and
and Assessment received on this section relate to the
hazard identification procedures. DOE
also expects that any identified hazards Section 851.21 establishes the scope of the required hazard assessment
would have been mitigated and contractor’s duty to enact procedures for procedures. Two commenters (Exs. 42,
controlled prior to allowing workers to identifying hazards and assessing the 47) suggested that it is not feasible to
proceed with activities in a work area. related risks in the workplace. This consider all hazards, as specified in
DOE agrees that the rights granted under section lists activities contractors must supplemental proposed section
this provision should be exercised in a perform as part of their hazard and risk 851.100(b)(1)(v), and that only relevant
controlled manner. Hence, section assessment procedures (e.g., conducting hazards should be considered. DOE
851.20(a)(9) of the final rule requires workplace monitoring, evaluating believes that to be effective, a worker
contractors to develop appropriate operations). Under this section, safety and health program must
procedures to implement stop work contractors must also provide a list of establish and implement procedures
authority. closure facility hazards and associated that will identify potential workplace
In related comments, three controls to the Head of DOE Field hazards and evaluate the associated
commenters (Exs. 11, 28, 48) thought Element, who will accept the controls or risks. In the final rule, section 851.21(a)
that the language in supplemental direct specific additional actions requires that such procedures be
proposed section 851.10(b)(8) was too described in this section. established. Contractors are to identify
vague, broad, or subjective. DOE notes DOE received a number of comments hazards that are to be identified by
that this stop work authority provision that expressed concern about the assessing worker exposures to chemical,
is similar to the provisions in DOE subjectivity of the supplemental physical, biological and safety hazards
Order 440.1A. DOE is not aware of any proposed section 851.100(b) language identified through appropriate
problems with the implementation of concerning identification and workplace monitoring and job activity
this provision under 440.1A and evaluation of workplace hazards, and level hazard analysis. These methods
therefore, has retained this provision in particularly the requirement in section are designed to identify the hazards to
the final rule. 851.100(b)(1)(iii) to evaluate potential which workers may be exposed.
Another commenter (Ex. 54) believed hazards that may arise from Through this process, DOE expects that
that worker representatives should be unforeseeable conditions. A number of contractors will be able to determine
allowed to participate in a review of commenters (Exs. 13, 15, 16, 20, 25, 27, which hazards are relevant to specific
stop work conditions. The commenter 31, 36, 42, 49) recommended that the work situations.
suggested that such issues are resolved supplemental proposed requirement to Two other commenters (Exs. 42, 47)
more quickly and effectively when evaluate potential hazards from expressed concern that supplemental
employer and employee representative unforeseeable conditions be eliminated proposed section 851.100(b)(1)(vii) to
(as well as external experts such as or replaced, based on their opinion that (ix) went beyond the scope of the ISMS.
OSHA and DOE Environment, Safety this is an ambiguous, general While the commenters believed that
and Health) are involved. DOE requirement that unreasonably puts these provisions were beneficial and
acknowledges these concerns and contractors in the position of trying to appropriate for a worker safety and
believes the concerns are addressed by foresee the unforeseeable. DOE has health program, they did not believe
existing provisions of the final rule. eliminated the requirement in the final that these provisions should be part of
Specifically, section 851.20(a) rule. DOE also has modified the final the rule. DOE believes that these
establishes a wide array of management rule to include section 851.21, which provisions are necessary requirements
responsibilities for ensuring worker provides specific requirements to guide for a contractor’s worker safety and
rights under and involvement in the contractors’ hazard identification and health program. In the final rule,
safety and health program. Final rule risk assessment activities. however, DOE has reorganized these
section 851.20(a)(9) further requires Section 851.21(a) requires contractors provisions to be more consistent with
contractors to develop appropriate stop to establish procedures to identify the requirements of DOE Order 440.1A,
work procedures for workers and existing and potential workplace which have been in use for the past 10
section 851.20(a)(7) requires contractors hazards and assess the risk of associated years. Accordingly, final rule section
to provide prompt response to worker workers’ injury and illness. These 851.21(a), requires contractors to
reports of workplace hazards. DOE procedures must include methods to: (1) develop procedures using specified
believes that these combined provisions Assess worker exposure to chemical, methodologies (mirroring those
provide DOE contractors an adequate physical, biological, or safety workplace established in DOE Order 440.1A) to
framework to develop appropriate stop hazards through monitoring; (2) assess and document the risk of worker
injury and illness associated with would require the use of accredited or days to accept the closure facility
existing and potential hazards. certified laboratories. Specifically, one hazard controls or direct additional
A number of commenters were of these commenters (Ex. 5) asked if the actions to either (1) achieve technical
concerned about the extent to which provision for ‘‘documenting assessments compliance or (2) provide additional
Part 851 would apply to radiological for chemical, physical, biological and controls to protect the workers. DOE
hazards. Several commenters (Exs. 16, safety workplace hazards using intends section 851.21(b) to be
20, 31, 36, 42, 47, 48, 49) believed that recognized exposure assessment and implemented in a manner that is
there is no utility in addressing testing methodologies and use of consistent with the provision in the
radiological hazards in the worker safety accredited or certified laboratories’’ also NDAA on taking into account the
and health program document since required contractors to use accredited or special circumstances associated with
they are already considered, and certified laboratories for performing facilities that are or will be permanently
controlled through a contractor’s other related activities. Another closed, demolished or subject to title
Radiation Protection Program and commenter (Ex. 16) believed that certain transfer and that minimizes the need for
Radiation Protection Manual in highly contaminated samples may fall variances.
compliance with Price-Anderson outside the capabilities of commercially One commenters (Ex. 28) believed
Nuclear Safety Regulations such as 10 available laboratories. Therefore, this that DOE sites within one year of a
CFR 835. Two other commenters (Exs. commenter felt that this provision formal declaration of site closure should
13, 39) requested that DOE clarify should be either deleted or modified to be exempt from compliance with Part
whether Part 851 applies to radiological clarify which assessments require 851 and a separate exclusion to this
hazards. If so, one of these commenters accredited or certified laboratories, effect should be included under section
(Ex. 13) wondered whether it is DOE’s which accreditation or certification 851.1. Another commenter (Ex. 39)
intent to apply this rule to radiological authorities should be used, and what asked for clarification of the types of
hazards at a lower threshold than the provisions are for frequency and ‘‘special circumstances’’ that should be
regulated by 10 CFR 820, 830, or 835. equivalency. Both this commenter (Ex. considered for a workplace that is (or is
In section 851.2(b) of the final rule, DOE 16) and another commenter (Ex. 27) expected to be) permanently closed,
clarifies that Part 851 does not apply to believed that any requirement for use of demolished, or transferred to another
radiological hazards to the extent they accredited or certified laboratories entity. This commenter (Ex. 39) also felt
are regulated by 10 CFR Parts 820, 830, should be evaluated with respect to that the supplemental proposed section
and 835. Section 851.21(a)(1) requires potential costs versus benefits, since use 851.100(b)(3)(ii), needed to be clarified
contractors to develop procedures that of such laboratories could result in with respect to the types of
include methods for identifying and increased costs and time. DOE believes circumstances considered relevant to a
assessing hazards related to chemical, that the converse would likely be true, proposal for modified requirements at
physical, biological, and safety work since not using a certified laboratory sites scheduled for closure, demolition,
exposures only. Final rule section would involve such efforts as or transfer. DOE agrees that the original
851.21(a)(8) makes clear the need to establishing quality control and supplemental proposed language related
consider other hazards. quantitative analysis processes etc. to what is now termed ‘‘closure
DOE received a few comments related Therefore, these efforts would likely be facilities’’ was unclear, and has revised
to sampling and laboratory analysis. more costly than using an established this section of the final rule. In final rule
One such commenter (Ex. 16) requested accredited laboratory. DOE also notes section 851.21(b), DOE requires
that DOE clarify the language in that reliance on accredited and certified submission of a list of closure facility
supplemental proposed section laboratories is consistent with hazards that cannot be fully abated or
851.100(b)(1)(vii) by defining what requirements established under DOE controlled within 90 days after
constitutes ‘‘appropriate workplace Order 4040.1A, OSHA standards, and identification of the hazards in a
monitoring’’ (i.e., whether it is in accepted industrial hygiene professional manner that achieves strict technical
relation to the number of samples, the practice. compliance with applicable regulatory
frequency/timing of samples, One commenter (Ex. 16) requested requirements. The Head of DOE Field
qualifications of those conducting the that DOE clarify what kinds of ‘‘safety Element has 90 days to accept the
sampling, a comparison of results to and health information’’ contractors are closure facility hazard controls
limits, etc.). The commenter required to review, as referred to in identified by the contractor as sufficient
recommended that ‘‘appropriate’’ either supplemental proposed section to ensure a safe and healthful workplace
be defined objectively or by reference to 851.100(b). To clarify this, DOE or direct additional action to either
OSHA standards used for workplace provides in final rule section achieve technical compliance or provide
monitoring. DOE disagrees that more 851.21(a)(7) that contractors hazard additional controls to protect the
specificity is needed, and believes it is identification and assessment workers.
understood that the term ‘‘appropriate’’ procedures must include provisions for Final rule section 851.21(c), which
in this case means using recognized the review of site safety and health was supplemental proposed section
methods for workplace monitoring such experience information. DOE anticipates 851.100(b)(1), requires contractors to
as those published by the American that such information could include, but perform the activities identified in
Industrial Hygiene Association or the may not be limited to, injury and illness section 851.21(a), initially to obtain
National Institute for Occupational data, inspection results, accident and baseline information, and again as often
Safety and Health, etc. DOE notes, near miss investigation results and as necessary. The commenter (Ex. 35)
however, its intent to develop trending data, etc. inquired whether the intent was to
supplemental guidance material Section 851.21(b) requires contractors require a baseline hazard assessment to
following publication of the final rule to to submit to the Head of DOE Field identify hazards for every workplace.
assist contractors in implementation of Element a list of closure facility hazards The commenter asked whether it might
the rule. and the established controls within 90 also be acceptable to describe only the
Other commenters (Exs. 5, 16, 27) days of identifying such hazards. The basic hazards of the workplace initially,
expressed concern that supplemental Head of Field Element, with while also providing a method in the
proposed section 851.100(b)(1)(viii) concurrence by the CSO, will have 90 worker safety and health program for
detailed real-time, job-specific hazard provision, the reference to ‘‘adequate for service providers to evaluate unsafe
and safety analysis to be conducted protection’’ has been eliminated. work practices. The commenter
immediately prior to beginning the Section 851.22(a) requires contractors recommended that the reference to
work. The commenter went on to state to establish and implement a hazard services be deleted. The other
that this latter (real-time assessment) prevention and abatement process to commenter (Ex. 54) recommended
would be performed to ensure that ensure that all identified and potential rewording the provision in light of the
changing worksite conditions have not hazards are prevented or abated in a concept of inherently safer design to
impacted hazards and associated timely manner. For hazards identified require ‘‘reduction in hazards to
mitigation strategies since the time either in the facility design or during the workers by ensuring that equipment
when the basic hazards were described development of procedures, contractors purchase, lease or rental, process and
in the initial assessment. DOE believes are required to incorporate controls in equipment design and all acquired
the requirements in final rule section the appropriate facility design or services are selected with worker safety
851.21 are appropriate, and declines to procedure. For existing hazards and health as a priority.’’ DOE believes
accept this commenter’s suggestion. It is identified in the workplace, contractors that worker safety and health should be
DOE’s intent that within the framework are required to (1) prioritize and a primary consideration in performing
provided in final rule section 851.21(c), implement abatement actions according work and should be considered in all
the contractor must identify existing to the risk to workers; (2) implement aspects of the work, including the
and potential workplace hazards using interim protective measures pending selection and purchasing of equipment,
the prescribed methods in section final abatement; and (3) protect workers products, and services. As a result, this
851.21(a), for new and existing facilities, from dangerous safety and health provision is retained in the final rule.
operations, and procedures. The conditions. One commenter (Ex. 16)
requested that the term ‘‘imminently Section 851.23—Workplace Safety and
contractor must establish and
dangerous conditions’’ in supplemental Health Standards
implement hazard identification and
risk assessment procedures initially to proposed section 851.100(b)(2)(iii) be Section 851.23(a) requires that
obtain baseline information and again as defined. DOE has modified the language contractors comply with the following
often as necessary to ensure compliance in final rule section 851.22(a)(2)(iii) to standards, if applicable to the hazards at
with the regulation in Subpart C. read ‘‘dangerous safety and health their workplace: (1) Title 10 CFR 850,
Section 851.21(a) also requires routine conditions.’’ These terms are commonly ‘‘Chronic Beryllium Disease Prevention
job activity level hazard analyses to be understood and need not be defined in Program’’; (2) Title 29 CFR Parts 1904.4
performed. The final rule intends for the Part 851. through 1904.11, 1904.29 through
contractor to develop and include the Section 851.22(b), which corresponds 1904.33; 1904.44 and 1904.46,
process for performing hazard to supplemental proposed section ‘‘Recording and Reporting Occupational
identification in the worker safety and 851.100(b)(2)(iv), requires contractors to Injuries and Illnesses’’; (3) Title 29 CFR
health program, but the contractor is not select hazard controls based on the Part 1910, ‘‘Occupational Safety and
required to present the full results of the following hierarchy: (1) Elimination or Health Standards,’’ excluding 29 CFR
hazard assessment in the worker safety substitution of the hazards where 1910.1096, ‘‘Ionizing Radiation’’; (4)
and health program. feasible and appropriate, (2) engineering Title 29 CFR Part 1915, ‘‘Shipyard
controls where feasible and appropriate, Employment’’; (5) Title 29 CFR Part
Section 851.22—Hazard Prevention and (3) work practices and administrative 1917, ‘‘Marine Terminals’’; (6) Title 29
Abatement controls that limit worker exposures, CFR Part 1918, ‘‘Safety and Health
Final rule section 851.22 establishes and (4) personal protective equipment. Regulations for Longshoring’’; (7) Title
the requirement for contractors to Two commenters (Exs. 16, 27) believed 29 CFR Part 1926, ‘‘Safety and Health
develop and implement a process for that the hierarchy of hazard controls Regulations for Construction’’; (8) Title
preventing, prioritizing, and abating should acknowledge appropriate 29 CFR Part 1928, ‘‘Occupational Safety
hazards in the workplace. Under this economic and technical feasibility, work and Health Standards for Agriculture’’;
section contractors must abate hazards activity duration, and available (9) ACGIH ‘‘Threshold Limit Values
using a prescribed hierarchy of controls, technology constraints that are (TLV) for Chemical Substances and
starting with elimination (or important and practical considerations Physical Agents and Biological
substitution) and ending with personal in compliance. DOE acknowledges these Exposure Indices,’’ when the ACGIH
protective equipment, which is to be concerns and section 851.22(b) of the TLVs are lower (more protective) than
used only as a last resort. Hazards must final rule has expanded to clarify that permissible exposure limits in 29 CFR
also be considered when contractors substitution or elimination of hazards part 1910 (note that when the ACGIH
purchase equipment. As a general and the use of engineering controls TLVs are used as exposure limits,
comment on the section as a whole, should be used where feasible and contractors must nonetheless comply
three commenters (Exs. 28, 45, 51) appropriate, and use of work practices with the other provisions of any
believed that the term ‘‘adequately and administrative controls to limit applicable expanded health standard
protected’’ is ambiguous in worker exposures. found in 29 CFR Part 1910); (10) ANSI
supplemental proposed section Section 851.22(c) requires contractors Z88.2, ‘‘American National Standard
851.100(a)(2) and implies that if an to address hazards when selecting or Practices for Respiratory Protection’’;
injury occurs by any means, the purchasing equipment, products, and (11) ANSI Z136.1, ‘‘Safe Use of Lasers’’;
program would not have provided services. Two commenters (Exs. 31, 54) (12) ANSI Z49.1, ‘‘Safety in Welding,
‘‘adequate protection.’’ The commenters expressed concern about the Cutting and Allied Processes,’’ sections
believed that the program should supplemental proposed section 4.3 and E4.3 (of the 1994 edition or
provide an acceptable level of worker 851.100(b)(2)(v). One commenter (Ex. equivalent sections of sequent editions);
protection based upon determination of 31) believed that this provision poses a (13) NFPA 70, ‘‘National Electrical
acceptable risks for identified hazards. problem because it is difficult to judge Code’’; and (14) NFPA 70E, ‘‘Electrical
As discussed previously, DOE believe the safety of services based on human Safety in the Workplace.’’ These
‘‘adequate protection’’ is a proper performance, and that this provision mandatory standards establish baseline
standard. However, in revising this would require review of safety records technical safety and health requirements
for DOE workplace operations. These requirements of this rule and are DOE received a few comments that
standards are already required by DOE approved by the appropriate Head of the recommended additional codes or
Order 440.1A, and are enforced through DOE Field element. Furthermore, DOE standards that should be incorporated
contract mechanisms. Section 851.23(b) notes that the standards included in into this rule. A commenter (Ex. 24)
provides that Part 851 may not be final rule section 851.23(a) have in fact suggested that DOE should adopt by
construed as relieving a contractor from been reviewed and approved by an reference the International Code Council
the obligation to comply with any existing DOE safety and health process. (ICC) International Codes as the
additional specific safety and health Specifically, these standards were foundation for DOE rules on facility
requirement that the contractor included in DOE Order 440.1A which design, construction, renovation, and
determines is necessary for worker was the result of extensive coordination worker safety, based on the premise that
protection. among safety and health professionals these codes are consistent with DOE
DOE received a substantial number of throughout the entire DOE community Orders 420.1 and 440.1A and have been
comments on this section, many of and was concurred on by all DOE widely adopted throughout the United
which applied to the section as a whole. Secretarial Officers and approved by the States by other federal facilities, state
One commenter (Ex. 28) noted that Secretary of Energy. and local facilities, and the private
supplemental proposed sections Several commenters (Exs. 30, 60, 62) sector. The commenter believed that to
851.201 through 851.210 did not believed that 10 CFR Part 850, Chronic do otherwise would foster non-
include requirements for chemical or Beryllium Disease Prevention Program uniformity and would likely result in
radiological protection, and (CBDPP), should be included as an increased costs and decreased worker
recommended that DOE specifically safety. DOE acknowledges the
enforceable standard under the rule or,
define ‘‘recognized areas of protection.’’ commenter’s concern but notes that the
and another commenter (Ex. 49) asked
DOE has clarified in final rule section final rule only includes those consensus
DOE to clarify its intent in that regard.
851.2(b) that Part 851 does not apply to standards originally required by DOE
The latter commenter (Ex. 49) argued
radiological hazards to the extent Order 440.1A. DOE believes that this
that 10 CFR part 850 is a performance-
regulated by 10 CFR 820, 830, or 835. change is consistent with intent of
based standard and did not provide an
Further, Subparts B and C establish Section 3173 of the NDAA and is
adequate technical basis to ensure
general and specific worker safety and appropriate in this regulatory context.
consistent enforcement, and believes
health program requirements that DOE will continue to encourage
that DOE should provide
contractors must implement to protect contractors to comply with applicable
workers from workplace hazards, which implementation guidance for 10 CFR
consensus standards where appropriate
as defined in section 851.3 of the final part 850 if the Department intends to
and will require compliance with
rule include physical, chemical, enforce that rule under 10 CFR part 851.
selected standards through DOE
biological, or safety hazards with any Another commenter (Ex. 30) asked that
directives such as DOE Order 420.1 and
potential to cause illness, injury, or DOE expand the scope of 10 CFR part
DOE contracts where needed. DOE also
death to a person. 850 to cover the United States
notes that final rule section 851.23(b)
Numerous commenters (Exs. 6, 15, 16, Enrichment Corporation (USEC) requires contractors to comply with any
20, 28, 29, 33, 37, 45, 47, 48, 51) argued facilities in Portsmouth, Ohio and additional safety and health
that compliance with the DOE-approved Paducah, Kentucky. DOE has requirement that they determine to be
contractor worker safety and health considered these comments and agrees necessary to protect the safety and
program, Work Smart Standards, or that 10 CFR Part 850 should be health of workers.
Contractors Requirements Document enforceable under Part 851. Another commenter (Ex. 30)
should constitute compliance with this Accordingly, final rule section recommended that an indoor air quality
regulation. Three of these commenters 851.23(a)(1) requires contractor standard and an ergonomics standard be
(Exs. 6, 15, 28) alternatively suggested compliance with 10 CFR part 850. In included in the rule and made
that DOE should include in the final addition, DOE has included a enforceable. DOE notes, however, that
rule DOE directives or standards that modification to 10 CFR part 850 as a both indoor air quality and ergonomic
have already been identified through part of this rulemaking effort to clarify hazards fall within the purview of an
various DOE approved processes and that a contractor’s CBDPP should industrial hygiene program.
incorporated into existing contracts, and supplement and be an integral part of Accordingly, DOE expects that
then define their relationship or the worker safety and health program contractors will address such hazards
functionality within the rule. Two other required under 10 CFR part 851. This through the implementation of their
commenters (Ex. 12, 42) requested that rulemaking effort does not, however, industrial hygiene program established
the rule clarify how DOE orders other expand the scope of 10 CFR part 850. in accordance with Appendix A, section
than DOE Order 440.1A in prime DOE’s intent with this rulemaking 6 of the final rule. DOE expects to
contracts should be addressed in regard effort, as clarified in final rule section develop guidance material to assist
to the worker safety and health 851.2, is to establish worker safety and contractors in implementing these and
requirements. DOE has incorporated health program provisions for contractor other requirements of the final rule.
relevant DOE directives into the workplaces under DOE’s jurisdiction, Another commenter (Ex. 29) indicated
appropriate sections of the final rule. As not for those under OSHA’s jurisdiction that much of the detailed codes listed in
discussed in the section-by-section as are the USEC facilities mentioned the supplemental proposal should be
discussion for Subpart B of the final above. DOE also notes in regards to the replaced by reference to the major
rule, DOE has also included provisions commenter’s (Ex. 49) request for CBDPP design codes. As noted above, however,
in section 851.13(b) to allow contractors guidance material, that DOE has already DOE has eliminated all but a handful of
to use existing worker safety and health published such guidance in DOE G consensus standards from the final rule
programs established under the 440.7A. DOE further notes that 10 CFR consistent with the standards originally
Integrated Safety Management System, part 850 is already enforceable through mandated under DOE Order 440.1A.
Work Smart Standards process, or other contract mechanisms on DOE sites, and Along similar lines, several commenters
worker safety and health process has been since its original promulgation (Exs. 2, 16, 20, 24, 31, 33, 37)
provided that such programs meet the in January, 2001. specifically requested that the
International Building Code (IBC) of the will consider the need for updating the standards listed in the supplemental
ICC International Codes replace NFPA referenced standards. proposed rule. The standards mandated
5000 since several contractors currently Other comments specifically in final rule section 851.23(a) are
adhere to IBC. DOE agrees and has addressed the problems associated with consistent with those required under the
removed NFPA 5000 from the final rule. updating older facilities and systems existing DOE Order 440.1A, which has
that were constructed according to been successfully implemented for more
DOE received multiple general
previous, rather than current standards. than 10 years. Thus, most facilities will
comments regarding the inclusion of
Many of these commenters (Exs. 8, 15, be in compliance with the new
document edition dates in this section.
29, 31, 35, 36, 37, 42, 46, 49) expressed standards and grandfathering is not
Many commenters (Exs. 1, 3, 4, 12, 14, necessary. Therefore, DOE does not
15, 16, 20, 22, 28, 31, 36, 37, 39, 42, 48, concern that the rule does not include
the ‘‘grandfathering’’ of existing anticipate a large number of requests for
49, 50, 51, 54, 55, 61) expressed concern variances, nor does DOE believe that
that supplemental proposed section facilities (i.e., allowing facilities to meet
only the code requirements in effect at compliance would result in excessive
851.201 included specific edition dates costs.
for standards and codes. The the time the facility was built). The
commenters believe that it is not Several commenters (Exs. 15, 16, 20,
commenters note that many existing 28, 29, 33, 36, 37, 45, 48, 51) noted that
facilities are unlikely to be in feasible to bring older facilities up to all
the new codes and that attempting to do conflict exists between many of the
compliance with these recent editions consensus standards and codes (e.g.,
(presumably because they were so would present insurmountable
OSHA, NFPA, ASME, and ANSI codes)
problems for most facilities.
constructed to meet earlier standards). cited in the supplemental proposal and
Commenters also believe that failure to
Several commenters (Exs. 3, 4, 14, 16, the codes and standards incorporated
allow grandfathering would result in
31, 36, 39, 50, 51) believed that into the contracts of many prime
significant costs associated with
including such dates would result in contractors and other DOE
evaluation, modification, reporting
excess exemptions and increased costs. requirements. Most of these commenters
requirements, and the need for
Some of these commenters (Exs. 14, 16, (Exs. 15, 16, 20, 28, 29, 33, 36, 37, 48,
exemptions, as well as costs from fines
31, 36, 50, 51) recommended 51) suggested that all cited regulations
or penalties associated with
eliminating the specific edition dates of should be reviewed for unintended
noncompliance. Some of these
the consensus standards, while others implications. In the final rule, DOE has
commenters requested grandfathering aligned the standards in final rule
(Exs. 14, 16, 31, 36) offered an under the Code of Record concept, in
alternative recommendation that DOE section 851.23(a) with those required
which a contractor is not required to under DOE Order 440.1A. Thus, DOE
indicate ‘‘latest revision’’ in lieu of the implement current editions of codes or
specific year. Three commenters (Exs. does not anticipate conflict between the
standards unless the facility undergoes standards in the final rule and those in
15, 31, 37) agreed, but suggested that substantial modifications. The
DOE include a mechanism within the existing contracts and other DOE
commenters suggested that DOE require directives.
rule that updates these dates to ensure modification only in the presence of a
consistency with the changing Several commenters (Exs. 6, 15, 28,
significant hazard, in which case the 29, 36, 37, 38, 42, 45, 47, 49, 50, 57)
knowledge and needs of the industries facility would be upgraded to the
they address. Two other commenters recommended that DOE adopt OSHA
requirements of the current edition of standards as the minimum set of
(Exs. 28, 49) indicated that the edition the code or standard. Another requirements, and expressed the
dates go beyond the statutory authority commenter (Ex. 14) also expressed opinion that the national consensus
given to DOE by Congress. DOE has concern that no provision in the standards in the supplemental proposed
carefully considered the forgoing proposed rule recognized DOE’s use of rule do not provide an appropriate basis
comments about the potential effects of the risk-based ‘‘graded approach’’ to for enforcing worker safety and health
incorporating specified editions of upgrading aging facilities and correcting requirements at DOE facilities. Two of
consensus standards. Regulatory deficiencies under current industry these commenters (Exs. 15, 38)
requirements must be specific and codes, regulations, and guidance. This suggested that DOE also adopt other
include the editions of incorporated commenter believes that shifting to the elements of OSHA’s regulations, such as
standards. Therefore, DOE cannot proposed compliance-based approach interpretations, penalty policies, and
accept the suggestion of requiring will incur excessive costs at the expense appeals mechanism. As previously
compliance with the ‘‘latest revision’’ of of the DOE program office due to the discussed, DOE has revised the list of
standards that are incorporated by funds required to bring all facilities into standards in response to comments on
reference. However, DOE has reviewed compliance at the same time, to pay the supplemental proposal. The
the standards listed in section 851.23(a) civil penalties, or to process exemption standards mandated in final rule section
to determine if they are appropriate. As requests. The commenter suggested that 851.23(a) are consistent with those
a result of this review, DOE has a possible resolution could be to mandated under the existing DOE Order
eliminated from the final rule many of grandfather known deficiencies with an 440.1A. These standards include OSHA
the consensus standards that were listed approved plan for resolution. Another standards as well other consensus
in the supplemental proposal. The commenter (Ex. 35) recommended that standards that have been evaluated by
standards included in this final rule are DOE add a provision that allows the DOE health and safety community
consistent with those mandated under contractors to use of national consensus and deemed necessary to address gaps
DOE Order 440.1A. While contractors standards equivalent to those listed in in the OSHA standards and to provide
must meet the standards listed in supplemental proposed section 851.201. adequate protection to the DOE
section 851.23(a), they are free to It was the commenter’s opinion that workforce. DOE also intends to prepare
comply with more recent editions of the including the provision would help enforcement guidance supplements
standards as long as the provisions of contractors avoid having to use the (EGSs) that will provide enforcement
the more recent standards are at least exemption relief described in Subpart D. guidance. DOE anticipates that these
protective as the edition specified in the As mentioned previously, DOE has EGSs will be consistent with and to a
final rule. In future rulemakings, DOE eliminated many of the consensus great extent based on the equivalent
OSHA guidance. Furthermore, under questioned how DOE would document feasibility. One commenter (Ex. 38)
final rule section 851.6, DOE will which provisions specifically applied to asserted that this provision goes beyond
continue to issue technical positions worker safety and which applied to OSHA requirements and creates an
that will be based in large measure on property protection. DOE acknowledges unreasonable obligation for contractors
the existing body of OSHA these concerns and notes that the intent to keep employee exposure levels below
interpretations. of the rule is worker safety and health. both OSHA PELs and the ACGIH
Several commenters were concerned Accordingly, DOE has removed the exposure limits (depending on which
by the potential costs of compliance majority of the specific NFPA standards value is lower). Conversely, another
with supplemental proposed section in the interest of reducing the contractor commenter (Ex. 54) recommended that,
851.23(a). These commenters (Exs. 14, and site compliance burdens. NFPA 70 to ensure greater worker protection,
16, 20, 27, 29, 31, 34, 36, 37, 38, 42, 48, and 70E remain in the final rule because DOE continue to require contractors to
49, 57, 58) surmised that they are important for protecting worker follow ACGIH TLVs where they are
implementation of the proposed rule safety and health on DOE sites. DOE more protective than OSHA PELs. DOE
would result in increased costs notes, however, several deleted NFPA agrees with the latter comment on
associated with the increased amount of standards may be applicable to DOE inclusion of ACGIH TLVs. In final rule
resources needed to comply with the facilities through DOE fire protection section 851.23(a)(9), DOE continues to
large number of consensus standards. directives, such as DOE Order 420.1A or require the use of ACGIH TLVs
Further, commenters believed that these by contract. exposure limits where they are lower
costs would divert funds normally spent Several of these commenters (Exs. 2, and more protective than OSHA PELs.
on safety, which would negatively 8, 16, 19, 29, 37, 45, 49) also objected As mentioned earlier in the discussion
impact worker safety and health. Two to the American Society of Mechanical of this section, this approach is
commenters (Exs. 15, 38) also argued Engineers (ASME), ANSI, American consistent with DOE Order 440.1A,
that the costs would divert funds from Petroleum Institute (API), American which has been in place and
research. One commenter (Ex. 11) felt Water Works Association (AWWA), and implemented by DOE contractors on
that DOE should perform an economic Underwriters Laboratories (UL) codes DOE worksites for a decade.
impact analysis for the rule. DOE again found in supplemental proposed section Two commenters were concerned
notes that in the final rule many of the 851.201(c), Tables 2 through 5. about beryllium exposure levels. One
consensus standards listed under the Commenter concerns related to these commenter (Ex. 49) recommended that
supplemental proposal are eliminated codes included increased costs if the the ACGIH TLV for beryllium be
and the remaining standards in final codes were retained, compliance issues, excluded from the rule on the basis that
rule section 851.23(a) are those required legacy construction issues, lack of DOE has a separate rule 10 CFR 850 that
by the existing DOE Order 440.1A. Most rationale for omission and inclusion of specifically addresses beryllium
facilities should already be in the codes appearing in the tables (i.e., exposure limits. In contrast, another
compliance with these standards and, the included codes were too commenter (Ex. 62) believed that DOE
therefore, DOE does not anticipate prescriptive but with numerous gaps in should adopt the ACGIH TLV for
increased costs. coverage), lack of applicability to DOE beryllium in the rule; the more
DOE received a number of comments sites, potential increase in exemption protective limit currently under
on specific standards (or blocks of requests, conflict with cited OSHA consideration by ACGIH would be
standards from the same standard- regulations in the supplemental applicable under this rule upon
setting organization). Many commenters proposal, level of specificity not ACGIH’s approval. In 851.23(a)(1) of the
(Exs. 1, 2, 3, 4, 5, 7, 8, 16, 19, 20, 24, appropriate to a rule of this type, the final rule, DOE requires contractors to
22, 29, 31, 33, 37, 39, 45, 47, 49, 54, 55, fact that specified code editions can comply with 10 CFR 850, ‘‘Chronic
58, 59, 61) raised concerns about the become quickly outdated, and problems Beryllium Disease Prevention Program’’
NFPA codes found in supplemental associated with revision of edition dates (Part 850 CBDPP). In addition, Part 850
proposed section 851.201(b), Table 1. through rulemaking procedures. Many CBDPP has been revised to state that it
The commenters recommended that of these commenters (Exs. 8, 16, 19, 45) supplements, and is deemed an integral
these codes be eliminated or clarified suggested that DOE eliminate the part of, the worker safety and health
based on various compliance concerns, specific codes and editions. Finding program under Part 851. Section
including applicability to facilities, several of these concerns to be valid, 851.23(a)(9) adopts the ACGIH TLVs,
increased costs, and excessive variance DOE has modified final rule section however, DOE notes that the rule adopts
requests. One commenter (Ex. 61) 851.23(a) by eliminating Tables 2 a specific version of the ACGIH
observed that while the supplemental through 5 and associated codes (i.e., standards. Incorporation of any future
proposed rule preamble and purpose ASME, API, AWWA, UL, and ANSI changes to those standards into 10 CFR
indicated that the purpose of the rule pressure-related codes). 851 could only be accomplished
was worker safety and health, many of DOE also received numerous through appropriate rulemaking
the National Fire Protection Association comments related to the standard on procedures.
(NFPA) requirements referenced in TLVs. Many commenters (Exs. 12, 16, DOE received a few requests for
supplemental proposed rule section 28, 31, 36, 37, 38, 42, 45, 47, 49, 51, 54, additional specific standards to be
851.201 from DOE Order 420.1A are 56) expressed concern over included in the rule. One commenter
directed at limiting property damage, supplemental proposed section (Ex. 49) recommended that DOE
not improving worker safety. The 851.201(e), which required compliance specifically list parts of the referenced
commenter inquired if it was the intent with the ACGIH standard for TLVs. ANSI standards that are considered
of the rule to address property Several of these commenters (Exs. 16, exposure limits and technical
protection in addition to worker safety 28, 31, 36, 37, 42, 45, 51, 56) expressed requirements and, thus, applicable
or whether enforcement of the NFPA the opinion that these values are under the rule. DOE agrees that
standards would be limited to those inappropriate and recommended that specificity is helpful and has included
issues and provisions that specifically they be eliminated from the rule or 851.23(a)(10), (11), and (12) in the final
affect worker safety. Furthermore, if the adopted only partially, since they do not rule; these list the three specific ANSI
latter was the case, the commenter take into account economic or technical standards adopted under the rule.
Three other commenters (Exs. 11, 54, requirements that they deem necessary recordkeeping and reporting
55) recommended that DOE include the to protect their workers. requirements. This section consolidates
10 CFR 1904, ‘‘Recording and Reporting provisions that were included in
Section 851.24—Functional Areas
Occupational Injuries and Illnesses,’’ sections 851.4(f) and 851.7 of the
standard and require participation in Section 851.24 requires that supplemental proposed rule. After
the OSHA illness and injury survey in contractors have a structured approach considering public comment, DOE has
29 CFR 1904.41. DOE agrees with this to their worker safety and health revised the recordkeeping and reporting
comment and in final rule section program, which includes provisions for requirements.
851.23(a)(2), DOE includes and requires functional areas. Specifically, 851.24(a) Section 851.26(a) requires a contractor
compliance with the following requires that contractors, at a minimum, to maintain complete and accurate
provisions of 29 CFR 1904: 1904.4 include provisions in the functional records of all hazard inventory
through 1904.11, 1904.29 through areas of construction safety, fire information, hazard assessments,
1904.33, 1904.44, and 1904.46, protection, firearm safety, explosives exposure measurements, and exposure
‘‘Recording and Reporting Occupational safety, pressure safety, electrical safety, controls.
Injuries and Illnesses.’’ industrial hygiene, occupational Section 851.26(a)(1) requires
One commenter (Ex. 5) suggested that medicine, biological safety, and motor contractors to ensure that the work-
DOE include relevant emergency vehicle safety. Section 851.24(b) related injuries and illnesses of their
response standards. This commenter establishes that contractors are subject workers and subcontractor workers are
noted that Emergency Response to all applicable standards and recorded and reported accurately in a
Planning Guidelines (ERPGs) and provisions in Appendix A, ‘‘Worker manner consistent with DOE Manual
Temporary Emergency Exposure Limits Safety and Health Functional Areas.’’ 231.1–1A, ‘‘Environment, Safety and
(TEELs) standards, which apply to Comments regarding each of the Health Reporting Manual.’’ This manual
emergencies and are not covered by functional areas are addressed in the was established under DOE Order
other standards, are not referenced in discussion of Appendix A in this 231.1A, the primary directive on
Supplementary Information. environment, safety and health
the rule. DOE notes that the specific
reporting, including occupational
issue of including emergency response Section 851.25—Training and injuries and illnesses. The manual
standards is beyond the scope of this Information requires contractors to record, maintain
rulemaking. Section 851.25 describes the records on, and report occupational
Several commenters (Exs. 25, 27, 28, contractor requirements for a worker fatalities, injuries, and illnesses among
31, 39, 42, 48) expressed concern that safety and health training and their employees (and subcontractors)
supplemental proposed section information program. Section 851.25(a) arising out of work primarily performed
851.200(b), which gave DOE the establishes the contractor’s obligation to at facilities owned or leased by DOE.
authority to impose additional provide training, while section Section 851.26(a)(2) requires
requirements on a contractor, would 851.25(b) describes when, and at what contractors to comply with the
leave contractor liability open-ended frequency, the training must be applicable to occupational injury and
and would exacerbate costs. These provided. Specifically, a contractor illness recordkeeping safety and health
commenters believed that the additional must provide (1) training and standards in section 851.23 of this part
requirements that DOE can impose on a information for new workers, before or at their site, unless otherwise directed
contractor should be limited in response at the time of initial assignment to a job in DOE Manual 231.1–1A.
to these comments. DOE has eliminated involving exposure to a hazard; (2) Section 851.26(b) establishes
this authority and modified the periodic training as often as necessary to contractors’ duty to report and
language in final rule section 851.23(b) ensure that workers are adequately investigate accidents, injuries, and
to read, ‘‘Nothing in this part must be informed and trained, and (3) additional illnesses. Under this section contractors
construed as relieving a contractor from training when safety and health are also required to analyze related data
complying with any additional specific information or a change in workplace for trends and lessons learned, in
safety and health requirements that the conditions indicates that a new or accordance with DOE Order 225.1A,
contractor determines to be necessary to increased hazard exists. Section ‘‘Accident Investigations.’’
protect the safety and health of 851.25(c) requires contractors to provide Section 851.26(c) requires that
workers.’’ training and information to workers contractors not conceal or destroy any
Another commenter (Ex. 15) felt that with worker safety and health program information concerning non-compliance
the intention of the introduction to the responsibilities that is necessary for or potential non-compliance with the
supplemental proposal, which indicates them to effectively carry out those requirement of this part.
that this proposal is intended to ‘‘codify duties. DOE received numerous comments on
a minimum set of safety and health One commenter (Ex. 30) reporting requirements in supplemental
requirements with which contractors recommended that proposed section proposed section 851.4(f). That
must comply,’’ is not carried over into 851.100(b)(7) be eliminated stating that supplemental proposed section would
the language of Subpart C, and it would result in excess paperwork have required contractors to report and
recommended that supplemental since contractors already have safety investigate each occurrence (including
proposed section 851.200(a) be modified programs and are required to provide a ‘‘near miss’’ incidents) that causes a
to include ‘‘A contractor responsible for workplace free of hazards. DOE significant likelihood of death or serious
a covered workplace must, at a disagrees, believing that training is a bodily harm. The majority of
minimum comply with the worker basic component of successful worker commenters (Exs. 5, 15, 25, 28, 30, 31,
safety and health requirements * * *’’ protection efforts. 35, 38, 39, 42, 45, 47, 51, 57) requested
DOE agrees with this concern but feels definitions for the terms used in the
that it is addressed in 851.23(b) of the Section 851.26—Recordkeeping and context of supplemental proposed
final rule, which states that a contractor Reporting section 851.4(f) (e.g., ‘‘near miss’’ and
is not relieved from complying with (a) Recordkeeping. Section 851.26 in ‘‘significant likelihood’’). Some
additional worker safety and health the final rule addresses contractor commenters (Exs. 16, 36, 42) favored
deletion of the provision, since the supplemental proposal exemption corresponding increase in compliance
terms were too subjective and lacked a process went beyond the flexibility costs, since contractors would often be
clear definition. In response to these provisions of the NDAA and could unable to meet the specific editions of
concerns, DOE has removed this allow contractors to inappropriately standards incorporated by reference.
provision from the final rule. Final rule circumvent many of the requirements of One commenter (Ex. 5) stated that
section 851.26(a)(2) clarifies that the rule. Several of these commenters exemptions take an incredible amount
contractors must report and record (Exs. 16, 58, 62) felt that the flexibility of time to prepare and get through the
workplace injuries and illnesses in concerns related to closure facilities DOE system for review and approval. As
accordance with DOE Manual 231.1–1A. raised in the NDAA would be more previously discussed, DOE has pared
The commenters (Exs. 5, 15, 25, 28, appropriately handled through the back the standards mandated in the
30, 31, 35, 38, 39, 42, 45, 47, 51, 57) also worker safety and health program, final rule to be consistent with those
sought clarification on reporting hazard abatement, and enforcement required by existing DOE Order 440.1A.
thresholds for occurrences in provisions of the rule. DOE believes that DOE contractors are
supplemental proposed section 851.4(f). To address these concerns, several intimately familiar and largely in
Two commenters (Exs. 13, 39) commenters (Exs. 11, 21, 44, 49, 60, 62) compliance with the requirements of
specifically inquired where and to suggested that DOE should replace the these standards. As a result, DOE does
whom the report should be submitted. proposed exemption process with a not anticipate a large number of requests
One commenter (Ex. 60) asserted that variance process modeled after OSHA’s for variances. As mentioned in the
occurrence reporting should be variance process established in 29 CFR section-by-section discussion for the fire
mandatory and failure to report should part 1905. These commenters argued protection provisions of Appendix A
be subject to enforcement. Concerned that the variance process outlined in 29 section 2 of the final rule, DOE believes
that this section contravened CFR part 1905 was developed that the ‘‘equivalency’’ process
Noncompliance Tracking System specifically to address OSHA worker established in many of the NFPA
reporting requirements in PAAA-related safety and health standards and, thus, standards required under final rule
programs, other commenters (Exs. 36, was more applicable to the requirements section 851.23 will further reduce the
38, 39, 42, 49, 57) pointed out that established in the worker safety and need for variances under the rule.
supplemental proposed section 851.4(f) health program. DOE also intends to apply OSHA’s
was not consistent with supplemental A few commenters (Exs. 28, 45, 51) policies regarding de minimis violations
proposed Appendix A(IX)(b)(5). Several supported the exemption process in the in determining the need for a variance
commenters (Exs. 15, 16, 20, 27, 31, 42, supplemental proposal but expressed and believes that this policy will further
49) recommended that the reporting concern that the exemption reduce the volume of variance requests.
process be aligned with existing DOE implementation process would become Specifically, OSHA practice holds that
reporting systems like the Occurrence unwieldy if additional exemption variances are not needed for conditions
Reporting and Processing System or criteria were added. These commenters that meet the criteria for de minimis
DOE Order 231.1A. As is noted earlier believed that this could be detrimental violations. These criteria, as described
in this discussion, DOE agrees with to legitimate exemption requests (e.g., in the OSHA Field Inspection Reference
these comments and has replaced facility closure or demolition), and Manual CPL 2.103, Section 7—Chapter
supplemental proposed section 851.4(f) suggested that an initial screening III, Sub-section C(2)(g) include
with final rule section 851.26, which process be established to determine conditions where: (1) Violations of the
references DOE Manual 231.1–1A. whether an exemption request satisfies relevant standard has no direct or
criteria for evaluation. One commenter immediate relationship to safety or
E. Subpart D—Variances (Ex. 28) suggested that the 10 exemption health; (2) An employer complies with
The supplemental proposal contained circumstances be grouped into 4 the clear intent of the standard but
an exemption process based on the categories for screening. deviates from its particular
exemption process established in 10 DOE has considered each of these requirements in a manner that has no
CFR part 820 for exemptions from comments and concluded that a direct or immediate relationship to
nuclear safety requirements. DOE variance process modeled after the employee safety or health; (3) An
selected the exemption process outlined OSHA variance process is more employer complies with a proposed
in 10 CFR part 820 for use in the appropriate to address worker safety standard or amendment or a consensus
supplemental proposal because it is and health issues. As a result, DOE has standard rather than with the standard
specific to DOE activities. DOE believed adopted a variance process based on the in effect at the time of the inspection
that because DOE contractors had variance process of 29 CFR part 1905. and the employer’s action clearly
already implemented this process, the DOE notes that, because section 851.23 provides equal or greater employee
process would be easily understood and requires compliance with OSHA protection or the employer complies
costs would be reduced. Many standards, the use of the OSHA variance with a written interpretation issued by
commenters (Exs. 10, 11, 15, 16, 20, 21, process as the framework of the DOE the OSHA Regional or National Office;
29, 31, 33, 36, 37, 38, 39, 40, 42, 46, 49, variance process will allow DOE to or (4) An employer’s workplace is at the
54, 60), however, disagreed with this benefit from OSHA’s implementation of ‘‘state of the art’’ which is technically
selection, most stating that this process the process over the past 3 decades. beyond the requirements of the
would actually be too costly to DOE expects that variance requests to applicable standard and provides
implement. Other commenters (Exs. 10, OSHA and OSHA responses will be equivalent or more effective employee
16, 23, 30, 39, 40, 44, 60, 62) argued that relevant to variance requests that the safety or health protection.
the exemption process in the Department will receive under Part 851. General examples illustrating
supplemental proposal was not Many commenters (Exs. 8, 15, 16, 20, potential de minimis conditions that
consistent with the requirement for 29, 31, 35, 36, 37, 38, 39, 42, 46, 49) may not require issuance of variances
flexibility specified by Congress in argued that the extensive list of based on the OSHA criteria described
section 3173 of the NDAA. Specifically, standards in supplemental proposed above may involve deviations of
these commenters felt that the 10 section 851.201 would result in distance specifications, construction
exemption criteria included in the excessive exemption requests and a material requirements, use of incorrect
color, minor variations from record- Another commenter (Ex. 11) stated stated that this requirement would
keeping, testing, or inspection that non-NNSA and NNSA contractors result in a significant increase in
regulations. For example, in considering should not have separate systems for the exemption requests, and this, in turn,
a variance request for 29 CFR exemption process, and that one process would result in increased cost including
1910.27(b)(1)(ii) which allows 12 inches would be appropriate for the the need for additional resources to
as the maximum distance between consideration of all variances. DOE manage the risk pending reapproval. A
ladder rungs, OSHA determined that a agrees that a single Department-wide few commenters suggested that the rule
situation involving rungs that were 13 process is appropriate and has designed be reworded to incorporate previous
inches apart could be considered de the variance process so that the exemptions and equivalencies (Ex. 16,
minimis. In another example involving Assistant Secretary for Environment, 31, 37, 49). DOE notes the commenters’
29 CFR 1910.28(a)(3) which requires Safety and Health considers all concerns and has revised the final rule.
guarding on all open sides of scaffolds, variances requests and makes a Section 851.31(a) requires contractors
OSHA determined that a situation recommendation as to whether they desiring a variance from a safety and
where employees were tied off with should be granted or denied. The health standard established in final rule
safety belts in lieu of guarding, met the decision to grant a variance is made by 851.23 to submit a written application
intent of the standard and thus, was a the Under Secretary with line to the appropriate CSO. Section
de minimis condition and a variance management responsibility for the 851.31(a)(1) and (2) established that the
was not needed. In a third example, contractor requesting the variance. The CSO may forward the application to the
OSHA determined that a deviation from Under Secretary must consider the Assistant Secretary for Environment,
29 CFR 1910.217(e)(1)(ii) which, recommendation of Assistant Secretary Safety and Health. If the CSO does not
requires that mechanical power presses in deciding whether to grant the forward the application to the Assistant
be inspected and tested at least weekly, variance. Secretary, the CSO must return the
was de minimis in a situation where the One commenter (Ex. 29) argued that application to the contractor with a
machinery was seldom used, and was the exemption process would function written statement explaining why the
inspected and tested prior to each use. more efficiently if variance requests for application was not forwarded.
The following sections provide a standards addressing less significant Final rule section 851.31(a)(3)
detailed discussion of the variance hazards could be approved at the requires upon receipt of the variance
process outlined in the final rule. regional or site level, so as not to application from the CSO, the Assistant
Because this process differs significantly overburden the CSO with multiple Secretary for Environment, Safety and
from the exemption process outlined in variance requests. DOE believes, Health to review the application for a
the supplemental proposal, the sections however, that concerns regarding variance, and make a written
below do not correspond directly with excessive variance requests are no recommendation to either approve the
the sections of the original proposal. longer relevant since, for the reasons application, or approve the application
noted above, DOE does not anticipate a with conditions, or deny the
Section 851.30—Consideration of application. In this process, the
large number of requests for variances.
Variances A final commenter (Ex. 47) on this Assistant Secretary for Environment,
Section 851.30 establishes the section believed that the provision that Safety and Health ensures uniformity in
authorities that will consider requests the CSO cannot delegate exemption grant variances and provides the
for variances from specific provisions of authority contradicts the requirements consistency needed the variance
the rule. Specifically, section 851.30(a) of supplemental proposed section process.
establishes that the Under Secretary has 851.203(a)(9). This referenced section One commenter (Ex. 49) expressed
the authority to grant variances. Under addressed a fire protection self- concern that the proposed rule is
this provision, this authority may not be assessment program; however, DOE unclear as to whether the CSO can grant
delegated. A few commenters (Ex. 30, believes this was an erroneous reference an exemption if the Assistant Secretary
44, 60, 62) believe that the Secretary of and that the commenter intended to for Environment, Safety Health does
Energy, not the Officer with reference supplemental proposed disagrees or fails to respond during the
responsibility for a contractor’s activity, section 851.203(a)(12), which addressed 30-day review period. This commenter
should issue the decision for a variance the approval of fire protection suggested that the rule include language
or an exemption. The commenters equivalencies at the site manager level. that states that the CSO may grant an
believe that instead of allowing the Although this specific provision has exemption if the Assistant Secretary
NNSA to recommend exemptions and been removed from the final rule, the fails to respond, or even if the Assistant
issue final decisions, the Energy equivalency process is separate from the Secretary disagrees, during the 30-day
Secretary should render decisions on all variance process outlined in subpart D review period. DOE has revised the final
exemptions, after receiving a of the final rule, so no conflict exists rule to elevate approval authority to the
recommendation from the EH–1. DOE within the rule. appropriate Under Secretary, which
disagrees, but believes that the Section 851.30(b) establishes that a requires the appropriate Under
appropriate approval level for granting a variance application must contain the Secretary to ‘‘consider’’ the Assistant
variance rests with the Under Secretary requirements specified in final rule Secretary’s ‘‘recommendations.’’ DOE
for Energy and Environment, or the section 851.31. has revised the final rule to elevate
Under Secretary for Science, or the approval authority to the appropriate
Under Secretary for Nuclear Security/ Section 851.31—Variance Process Under Secretary, which requires the
Administrator for National Nuclear Section 851.31 of the final rule appropriate Under Secretary to consider
Security Administration, and need not describes the variance process the Assistant Secretary’s
be elevated to the Secretarial level. The requirements. Several commenters (Exs. recommendations.
Under Secretary, in granting the 15, 16, 29, 31, 37, 42, 46, 49) expressed Two commenters (Exs. 30, 60)
variance must consider the concern over the proposed requirement expressed concern that the
recommendation of the Assistant to resubmit existing exemptions, supplemental proposal might be
Secretary for Environment, Safety and especially those exemptions involving interpreted as allowing exemptions to
Health. fire safety (Exs. 31, 37, 42). Commenters go into effect within 30 days if EH–1
fails to act on an exemption review. The exemption of an entire facility from one applications include any requests for a
commenters believed that this maybe an or more requirements, via a single conference, which as clarified in final
unrealistic deadline if there is a backlog exemption request. This commenter felt rule section 851.34 allow contractors
of exemption requests, and could result that such a broad exemptions might be and workers to present facts on how
in unwarranted exemption approvals. appropriate for a facility that is they would be affected by the variance.
DOE notes, the variance process in the scheduled for closure or transfer of title. In addition, sections 851.31(c)(5) and (6)
final rule does not establish a time limit DOE disagrees with this commenter. require that the application include a
for EH–1’s review of contractor variance The variance process is intended to statement that the contractor has
requests. provide relief from a specific informed the affected workers of the
Another question raised by a requirement due to specific application through appropriate
commenter (Ex. 49) was whether circumstances present in a specific work methods, as well as a description of how
exemptions of rule requirements could site. The provisions are not intended to workers were informed of the
be incorporated in the contractor worker provide wholesale exemptions from application and of their right to petition
safety and health plan and be approved standards at entire facilities. DOE notes the Assistant Secretary of Environment,
through CSO approval of this plan. The that the standards mandated in final Safety and Health for a conference.
approval authority for a variance is rule section 851.23 are consistent with Section 851.31(c)(5) further clarifies that
higher than that for a written program. the standards required by DOE Order appropriate methods for notifying
Variances may not be approved by 440.1A. The majority of these standards workers of the application include
incorporating a variance request in the have been applicable to DOE worksites giving a copy of the application to the
worker safety and health program, through DOE Order 440.1A and a workers’ authorized representative,
which is reviewed and approved by the variety of predecessor orders and posting a statement at the place(s) where
Head of DOE Field Element. contract clauses for decades. In notices to workers are normally posted,
A few commenters (Exs. 28, 37, 45, addition, DOE believes that sufficient giving a summary of the application and
51) concerned about a potentially flexibility for closure facilities is specifying where a copy may be
lengthy variance approval process, provided through final rule section examined, and other appropriate means.
requested that a specific time period 851.21(b), which allows contractors to One commenter (Ex. 62) believes that
(e.g., 45 days) be set for DOE to act on submit to the Head of DOE Field the rule should clarify the required
an exemption request. Some of these Element a list of closure facility hazards content for an exemption, and that the
commenters were concerned that the that cannot be fully abated and/or required content should be based on
variance approval process could delay controlled within 90 days of being OSHA’s required content for variances.
approval of a contractor’s worker safety identified. This commenter, as well as two others
and health program, resulting in a Section 851.31(b) establishes (Exs. 44, 60), also suggested that the
temporary facility shutdown. As noted procedures for processing defective proposed rule be revised to incorporate
in the discussion of subpart B of the variance applications. The Assistant OSHA’s approach which, according to
final rule, DOE does not intend for Secretary for Environment, Safety and the commenters, requires a clear
approval of the contractor’s safety and Health can return an application with a demonstration that worker safety will
health program to be contingent upon or written explanation if it does not not be negatively affected by the
related to approval of outstanding contain the information required to variance and establishes the procedures
variance request. To clarify this intent, make a determination. needed to provide a fair and transparent
DOE has removed a provision from Section 851.31(c) establishes the exemptions process. These commenters
subpart B of the final rule that required required content for a variance argued that OSHA’s approach permits
contractors to identify, in their application. Like the corresponding employers to apply for variances, but
programs, situations for which sections of the previous supplemental requires notice to affected employees
exemptions were needed. As a result, proposed, final rule sections and the public and gives them the
action on variance requests alone will 851.31(b)(1) through (3) specify that a opportunity to participate in a hearing.
not delay approval of a contractor’s variance application must contain the These commenters believed that a
worker safety and health program. name and address of the contractor, the review process that provides the public,
A few commenters (Exs. 28, 45, 51) address of the DOE site(s) involved, and affected workers and their
argued that exemption relief should not a specification of the standard from representatives, with ample notice and
be limited to Subpart C but should be which the contractor seeks a variance. the opportunity to have their views
available for relief form provisions in all Several commenters (Exs. 10, 30, 40, considered would help ensure
subparts of the rule. DOE disagrees with 54, 55, 60, 62) expressed concern at the transparency, accountability, and
the commenter, however, because the lack of worker notification and integrity in the DOE rule. One of these
standards listed in section 851.23 of the involvement in the proposed exemption commenters (Ex. 62) further requested a
final rule are generally more process and requested that when a 30-day review period for workers and
prescriptive in nature than the other contractor applies for an exemption, the believed that decisions regarding an
programmatic requirements in the rule. exemption request (and any replies to exemption should be published in the
For instance, there may be many ways that request) be posted in a designated Federal Register within 10 days of
for a contractor to meet the intent of a area in the workplace at the time of the issuance.
programmatic requirement (such as request. These commenters noted that DOE agrees in part with these requests
management responsibilities). For this worker input should be required and and, as discussed above, has included
reason, final rule section 851.31(a) solicited, and requested that workers provisions for worker notification and
specifies that the variance process in the and their representatives be fully able to involvement in the variance process in
final rule applies only to the safety and participate in any discussions and final rule sections 851.31(c)(4) through
health standards prescribed in final rule appeal any decision. After reviewing (6). DOE does not agree, however, that
section 851.23. these comments, DOE has added several parties not impacted by the variance
Another commenter (Ex. 13) provisions to the final rule to address request be notified of the application.
suggested that the DOE expand the these concerns. For instance, section The final rule, however, does not
exemption process to provide for an 851.31(c)(4) requires that the preclude workers from sharing concerns
with any party regarding workplace defense. The contractor must submit a conditions proposed for inclusion as
safety and health matters at their own statement showing how the conditions, part of the approval.
discretion. practices, means, methods, operations, Section 851.32(a)(2) requires that if
Section 851.31(d) describes the types or processes used would give workers a the Under Secretary approves the
of variances for which a contractor may safe and healthful place of employment variance to notify the Assistant
apply. These are: Temporary variances, in a manner that is, to the extent Secretary for Environment, Safety and
permanent variances, and national practicable taking into account the Health who must notify the Office of
defense variances. Section 851.31(d)(1) national defense mission, consistent Price-Anderson Enforcement and the
defines the purpose of a temporary with the standard form which the appropriate CSO. The CSO is required
variance. A temporary variance allows variance is requested. A national to notify the contractor. Final rule
contractors a short-term exemption from defense variance will only be granted section 851.32(a)(3) requires the
a workplace safety and health standard for a maximum of six months unless a Assistant Secretary include in the
when they cannot comply with the showing is made that additional time is notification a reference to the safety and
requirements by the prescribed date essential to the national defense health standard or portion thereof, that
because the necessary construction or mission. is the subject of the application, a
alteration of the facility cannot be One commenter (Ex. 11) believed that detailed description of the variance, the
completed in time or because technical the national defense exemption basis for the approval and any terms and
personnel, materials, or equipment are provisions included in the conditions of the approval.
temporarily unavailable. To be eligible supplemental proposal would create a Section 851.32(a)(4) and (5)
for a temporary variance, a contractor potential ‘‘loop hole’’ by allowing establishes that if the Under Secretary
must implement an effective practices that would result in worker denies a variance, the Under Secretary
compliance program as quickly as must notify the Assistant Secretary for
injuries and illnesses in the name of
possible. In the meantime, the Environment, Safety and Health and the
achieving national defense ‘‘in an
contractor must demonstrate to the CSO who must notify the contractor.
efficient and timely manner.’’ DOE
appropriate Under Secretary and the The notification must include the
notes that the NDAA mandates
Assistant Secretary for Environment, grounds for the denial.
flexibility for national defense activities. Section 851.32(b) establishes the
Safety and Health, that all available DOE believes the language in the final
steps are being taken to safeguard approval criteria for a variance
rule provides such flexibility without application. The Assistant Secretary for
workers. DOE does not consider the creating the potential for disregarding
inability to afford compliance costs to Environment, Safety and Health may
the standards set forth in subpart C. recommend to the Under Secretary
be a valid reason for requesting a
temporary variance. Another commenter (Ex. 62) granting a variance only if the variance:
Section 851.31(d)(2) of the final rule acknowledged that national security (1) Is not inconsistent with section 3173
establishes the requirements for a exemptions are warranted, but noted of the NDAA; (2) Would not present an
permanent variance. A permanent that such exemptions should be rare. undue risk to worker safety and health;
variance grants an exemption from a This commenter believed that national (3) Is warranted under the
workplace safety and health standard to security concerns could be addressed circumstances; (4) Satisfies the
contractors who could prove that their directly in the rulemaking, as with requirements of § 851.31 of this part for
methods, conditions, practices, DOE’s exemption from OSHA standards the type of variances requested.
operations, or processes provide on explosives, through careful writing of A few commenters (Exs. 28, 45, 51)
workplaces that are as safe and healthful the rule. While agreeing that national believed that the wording in the
as those that follow the prescribed defense variances should be rare, DOE exemption criteria in supplemental
standard. To decide whether to does not agree that the need for proposed rule section 851.301(a)(1)
recommend granting a permanent variances can be removed by more should be changed from ‘‘Be consistent
variance to the appropriate Under specific rule drafting. DOE notes that with law’’ to ‘‘Be consistent with
Secretary, The Assistant Secretary for the provision exempting DOE from applicable law.’’ Another commenter
Environment, Safety and Health reviews OSHA standards regarding explosives (Ex. 29) requested that the proposed
the contractor’s application and, if was included because existing DOE language in the supplemental notice of
appropriate, visits the workplace to explosive safety requirements are more proposed rulemaking section
confirm the facts provided in the directly relevant to DOE operations and 851.301(a)(1) be changed to ‘‘Be
application. If the request has merit, the thus are more protective of the DOE consistent with the intent of the law,’’
Assistant Secretary could recommend workforce. noting that if a contractor could achieve
granting a permanent variance as Section 851.32—Action on Variance full compliance with the law, an
described in final rule section 851.32. Requests exemption would not be needed. This
Final permanent variance orders will basic criterion is clarified in final rule
detail the contractor’s specific Section 851.32 of the final rule section 851.32(c)(1), which states that
responsibilities and requirements and establishes procedures for an approval DOE may grant a variance only if the
explain exactly how the contractor’s recommendation of a variance variance ‘‘is consistent with section
method varies from the regulation’s application. Specifically, section final 3173 of the NDAA not prohibited by
requirement. rule 851.32(a)(1) establishes if the law.’’
Section 851.31(d)(3) of the final rule Assistant Secretary for Environment, Another commenter (Ex. 44)
establishes the criteria for granting a Safety and Health recommends approval requested that the proposed rule be
variance from a workplace safety and of a variance application, the Assistant revised to explicitly state that there may
health requirement for reasons of Secretary is required to forward the not be a reduction in worker safety
national defense. The Department will application and the approval through the granting of an exemption,
use national defense variances to grant recommendation to the Under Secretary. and that the rule should require a
reasonable exemptions from workplace The recommendation must include a preponderance of evidence that worker
safety and health standard requirements discussion of the basis for the safety will not be compromised. The
to avoid serious impairment of national recommendation and any terms and commenter also requested that the rule
allow adequate determination to be meet the requirement for a variance set DOE received support for the
made regarding the effectiveness of forth in the approval criteria. elements of the enforcement program
alternative protective measures and that from several commenters, who generally
Section 851.33—Terms and Conditions
DOE establish expiration dates for view DOE’s approach as reasonable and
approved exemptions, rather than giving Section 851.33 establishes the sound. One commenter (Ex. 51) strongly
the contractors almost complete leeway required terms and conditions of an agreed with the enforcement process of
to establish their own exemptions. DOE approved variance. The section the supplemental proposal and expected
agrees with this commenter and in final establishes that a variance may contain, that the self-auditing process would
rule section 851.32(c)(2) requires a but is not limited to, provisions that create positive incentives for contractors
determination that the variance would limit its duration, require alternative to self-identify and correct hazards.
not present an undue risk to worker action, require partial compliance, or Additionally, this commenter found the
safety and health prior to the Under establish a schedule for full or partial enforcement process’s purpose and
Secretary granting the variance. compliance. No comments were procedures to be clearly defined, as
One commenter (Ex. 39) requested submitted on the corresponding were the classifications and categories
that the rule make clear that hazards provisions of the supplemental notice of of violation severity levels.
that are inherent to the work being proposed rulemaking during the public Other commenters requested
performed are excluded from the comment period. clarification of various points of the
provision that states that an exemption rule. For instance, one commenter (Ex.
Section 851.34—Requests for 5) asked DOE to clarify whether only
must be free of recognized hazards. DOE Conferences
has removed the language stating that deviations from the rule could result in
the exemption must be free of Section 851.34 allows for a worker to financial penalties. The commenter
recognized from the variance criteria request a conference. Any affected suggested that ‘‘it would be better to use
established in the final rule. DOE notes, contractor or worker may file a request the preliminary hazard analysis (PHA)
however, that contractors are required for a conference on the application with process such that fines and penalties
by section 851.32(c) to demonstrate that the Assistant Secretary for Environment, could be imposed if sites violated
alternate controls will provide a Safety and Health. A request must technical safety requirements.’’ DOE
workplace that is as safe and healthful include a statement showing how the presumes that this commenter is
as that required by the standard and also contractor or worker would be affected distinguishing between deviations from
requires a determination that the by the variance applied for, the the letter of the rule and deviations from
variance will not present an undue risk specification in the application that is their approved written program. In fact,
to worker safety and health. These denied and a summary of evidence in DOE intends for both the approved
support of each denial, and any views worker safety and health program and
sections clarify the Department’s intent
or arguments on any issue of facts or the applicable requirements of Subpart
that variances not diminish protection
law presented. C to be enforceable. DOE recognizes that
provided to the DOE workforce.
violations of standard requirements may
Section 851.31(c) establishes As discussed in section 851.31(b),
be the result of worker safety and health
procedures for the Assistant Secretary several commenters (Ex. 10, 30, 54, 55)
program failures. In these instances
for Environment, Safety and Health to believed that worker input should be
worker safety and health program
recommend denial of an application. If required and solicited, and requested failures may be cited.
denial is recommended, the Assistant that workers and their representatives Another commenter (Ex. 6) suggested
Secretary is required to give prompt be fully able to participate in any that safety and health-related
notice to the CSO, who must either discussions and appeal any decision. enforcement should be performed by
notify the contractor that the application DOE agrees with this request and OSHA rather than DOE. In its view,
is denied or, if the CSO disagrees with incorporated worker notification DOE does not have the capabilities (e.g.,
the recommendation, forward the requirements and worker rights to certified occupational safety and health
application, the recommendation, the petition for a conference into the final inspectors) to enforce the rule. DOE
statement of the grounds for denial, and rule. agrees that a qualified staff is an
a written statement explaining the basis Section 851.34(c) of the final rule, important component of an effective
for disagreement with the Assistant allows the Assistant Secretary for enforcement program and notes that
Secretary’s decision to the appropriate Environment, Safety and Health, or its DOE, through authority granted under
Under Secretary who will review the designee, to determine whether to meet the AEA of 1954, has enforced
package and make a decision. All denial with an affected contractor or worker. occupational safety and health
notices must include, or be requirements through contracts on DOE
accompanied by, a brief statement of the F. Subpart E—Enforcement Process
sites since its inception. Section 3173 of
grounds for the denial, as required by Subpart E of this rule describes how the NDAA mandates DOE to promulgate
section 851.31(c)(4) of the final rule. A DOE will enforce the rule’s worker this rule to provide a regulatory
denial of an application pursuant to this safety and health program requirements. enforcement and civil penalty
paragraph shall be without prejudice to Specifically, the subpart outlines the mechanism. The Office of Price-
submitting of another application. rights and responsibilities of DOE and Anderson Enforcement is staffed with
Section 851.32(d) establishes the contractors during inspections, trained, qualified professionals capable
grounds for denial of a variance investigations, and resulting of performing enforcement inspections
application. A variance application can enforcement actions. The enforcement and investigations.
be denied: (1) When enforcement of the options available to DOE are designed to Several of the comments (Exs. 12, 13,
violation would be handled as a de provide a flexible framework that 37) sought clarification of certain
minimis violation; (2) when a variance encourages settlement of enforcement aspects of the enforcement process. For
is not necessary, for example, when an proceedings while prescribing clear, instance, one commenter (Ex. 13) found
interpretative ruling is granted on a timely communication between DOE some of the terminology (e.g.,
specific standard or portion thereof; (3) and contractors throughout all phases of ‘‘deception,’’ ‘‘willfulness,’’ ‘‘gross
when there is a situation that does not enforcement activities. negligence’’) too subjective for use in
determining the severity of violations. reporting of noncompliances into NTS. protocols to the unique DOE
The commenter suggested that further The Office of Price-Anderson enforcement regime.
guidance is needed to clearly define the Enforcement expects to periodically DOE received several comments that
DOE’s intended enforcement of the rule. adjust the thresholds as additional questioned whether DOE can effectively
Clear definitions were also requested by experience is gained under the final regulate contractors to the extent
a commenter (Ex. 37) who suggested rule. Also, this office will incorporate indicated by this part. For example, a
that DOE adopt provisions from OSHA’s lessons learned from the reporting of commenter (Ex. 6) questioned whether
enforcement processes on severity of nuclear violations into NTS. DOE would enforce this regulation for
findings, threshold criteria for appeals, its Headquarters (HQ), regional, or site
Several commenters (Exs. 31, 37, 42, offices, and suggested that HQ will need
and an independent and equitable
57, 58) expressed concern that the to set up an independent oversight
appeals process. Another commenter
proposed rule would not provide for office. These commenters may not be
(Ex. 12) felt the rule did not clearly
defenses that are commonly applied to aware that the Office of Price-Anderson
indicate how potential violations would
American industry in OSHA Enforcement, which has independent
be identified and screened. This
commenter suggested that DOE develop enforcement proceedings. These oversight authority, currently enforces
compliance directives such as those commenters offered specific examples, nuclear safety requirements, will
used by OSHA. DOE agrees that including defenses related to a standard expand its enforcement function to
enforcement guidelines with clearly being ‘‘unenforceably vague,’’ lack of include enforcement of the worker
defined terminology will aid the employee endangerment, lack of safety and health provisions of this rule.
Department in ensuring fair and employer knowledge of a hazard, Another commenter (Ex. 13)
consistent enforcement. DOE has technological or economic feasibility of described the enforcement policy as
revised Appendix B of the final rule abatement for noise and toxic substance establishing a highly complex nuclear
(previously Appendix A of the hazards or regulatorily proposed safety process that far exceeds what
supplemental proposed rule) to clarify mitigation plans, unpreventable or OSHA expects of the industrial sector.
severity levels, and final rule section unforeseeable employee misconduct, DOE disagrees with this statement. The
851.44 clearly describes the lack of employer control over a hazard, worker safety and health program
administrative appeals process. and emergency conditions. DOE implemented in the final rule is based
Additionally, DOE intends to publish recognizes the value of additional on the program management provisions
enforcement guidance supplements guidance on these matters but notes that established in DOE Order 440.1A and its
(EGS) that, coupled with Appendix B to affirmative defenses from OSHA predecessor orders to address
the final rule, will further guide the citations are not built into the regulatory occupational safety and health at DOE
text of the OSHA standards as suggested facilities. The worker safety and health
enforcement process.
by some of the commenters. Such program was based in large measure on
A commenter (Ex. 16) concerned the OSHA Voluntary Safety and Health
specifically with the Noncompliance defenses are instead discussed in
OSHA’s enforcement guidance, Management Guidelines published in
Tracking System (NTS) process and 1989. Accordingly, DOE believes that
NTS reporting thresholds suggested that including the Field Inspection
Reference Manual. The defenses the provisions of the final rule are
DOE use an enforcement process similar generally consistent with what OSHA
to that used for the enforcement of commonly addressed in OSHA guidance
include unpreventable employee expects of effective worker safety and
Price-Anderson Amendment Act health programs in the private sector.
(PAAA). This commenter indicated that misconduct, impossibility, greater
Compliance costs and accounting
DOE could benefit from its experience hazard, and multi-employer workplaces. were a concern for several commenters.
of implementing the PAAA process over DOE intends to follow a similar Two of these commenters (Exs. 31, 48)
the past 10 years, particularly by approach by incorporating guidelines on felt that DOE enforcement will result in
integrating costly NTS reporting with these types of affirmative defenses in increased cost to contractors ‘‘to
Occurrence Reporting and Processing appropriate EGSs to the extent these respond to new and extensive
System (ORPS), making use of fully defenses are appropriate for DOE. enforcement activities.’’ DOE disagrees.
integrated contractor management Another commenter (Ex. 11) suggested Contractors with effective integrated
systems (as in draft DOE Order 226.1), that the rule should contain details of an safety management programs, which
following the Nuclear Regulatory inspection targeting process that incorporate both nuclear safety and
Commission (NRC) precedents by outlines the procedures DOE will use as worker safety and health programs, have
eliminating subjective NTS reporting the criteria for selecting facilities for little to worry about. The Office of Price-
thresholds, and encouraging contractors inspection. The commenter indicated Anderson Enforcement intends to
to shift from ‘‘event driven’’ to that OSHA has published criteria of this enforce both nuclear and worker safety
‘‘assessment driven’’ reporting. While type, which are used to ensure effective and health programs from the same
not opposed to further clarification of use of limited enforcement resources. office, using similar operating
NTS reporting thresholds, DOE notes DOE does not agree with this comment. principles. The Office of Price-Anderson
that the DOE community has experience There is no statutory requirement that Enforcement will most likely consider
in implementing tracking programs. DOE outline its process for identifying enforcement action in significant
Contractors have long been responsible and prosecuting violations of the Part situations. Another commenter (Ex. 29)
for recording and analyzing 851. Such a process would interfere suggested that—for the purposes of the
occupational safety and health (OSH) with the discretion necessary to Major Fraud Act—the rule should
noncompliances and tracking abatement effectively implement the statutory include a provision stating when the
progress as required by DOE Order mandate. However, as previously contractor must begin segregating the
440.1A. To help refine the process mentioned, DOE does intend to develop costs of responding to a DOE safety and
under the final rule, the Office of Price- EGSs that will present guidelines for the health investigation, since these costs
Anderson Enforcement plans to develop enforcement process. The Office of will not be recoverable if a violation is
and publish in appropriate EGSs, Price-Anderson Enforcement expects to confirmed. DOE has significant
thresholds for voluntary contractor adapt many of OSHA’s inspection experience with the Major Fraud Act in
connection with the implementation of DOE will use contractor self- both DOE’s and the contractor
part 820. Accordingly, the same assessments as a basis for enforcement understands of the requirements.
procedures and requirements that DOE actions. This commenter recommended
Section 851.40—Investigations and
has already successfully applied to that DOE adopt OSHA’s policy
Inspections
enforcement actions under 10 CFR part regarding the treatment of voluntary
820 will apply to enforcement actions employer safety and health self-audits. Section 851.40 establishes DOE’s right
under 10 CFR part 851. DOE notes that contractors are to conduct investigations and
DOE received a number of comments responsible for identifying and tracking inspections to confirm contractor
in addition to those discussed above noncompliances. The Office of Price- compliance with the rule and describes
that recommended that DOE incorporate Anderson Enforcement does not intend the steps DOE must take when
various aspects of OSHA’s enforcement to routinely ask to see contractor self- performing an investigation or
program. A few commenters (Ex. 29, 37, assessment reports for the purpose of inspection. The section also gives
47) believed that DOE should use an identifying noncompliances; however, contractors certain rights and
enforcement process based on OSHA to the Office may review such documents responsibilities during inspections and
better serve the needs of worker safety during the course of a program review investigations.
and health. For instance, one or during an investigation prompted by Section 851.40(a) gives the Director
commenter (Ex. 37) felt strongly that an an event such as an accident, recurring the right to take any actions necessary
‘‘OSHA approach to safety or repetitive condition, or programmatic to conduct inspections and
enforcement’’ is more appropriate and failure. investigations of contractor compliance
better understood by DOE management One commenter (Ex. 48) suggested with health and safety program
and operating contractors and that ‘‘The overall effect of this rule requirements. In order to conduct these
subcontractors than the nuclear safety * * * as written will be to burden both inspections, DOE enforcement officers
enforcement approach proposed in the the Government and its contractors with have the right to prompt entry into
rule. The commenter suggested that a potentially massive reporting and worksites.
DOE consider relying upon OSHA analysis effort. Contractors will be One commenter (Ex. 42) indicated
enforcement guidance and case law for compelled to report each variation in that DOE must establish clear
determining violations and penalties standard compliance and the DOE procedures for OE to carry out
under the DOE rule, particularly in enforcement and investigative arm [will investigations and enforcement actions.
regard to the General Duty Clause and be compelled] to read and screen all This commenter believed that these
affirmative action defenses. DOE does reports for NOV issue.’’ It appears to procedures should specify what events
not agree with this commenter’s DOE that this commenter assumes that will trigger an informal conference and
assertion that contractors are unfamiliar a contractor may have a significant subsequent enforcement action and
with the enforcement approach in this number of noncompliances on the whether Type A and B investigations
rule. This rule will apply to contractors effective date of this rule. This should will be used as the basis for legal action.
and their subcontractors, just as the not be the case since contractors should Again, DOE finds that it is more
nuclear safety rules apply. Therefore, already be in compliance with DOE appropriate to establish inspection
these parties should already be familiar Order 440.1A, which provides the basis protocols EGSs. These EGSs, coupled
with the enforcement regime and the for this final rule. Noncompliances that with Appendix B to the final rule, will
flow down of requirements. Two other existed in the past should have been guide the enforcement process and
commenters (Exs. 38, 57) believe that, identified, analyzed, and tracked address the issues raised by the
unlike the OSHA enforcement process, through abatement. Any commenter. The Office of Price-
the DOE enforcement process in the noncompliances that still exist, should Anderson Enforcement will use all
supplemental notice of proposed already be in the contractors’ tracking available information in exercising its
rulemaking would not afford contractors systems. The magnitude of emerging enforcement authority.
the right to a hearing with the ability to noncompliances should not overwhelm A second commenter (Ex. 5) inquired
present witness testimony before reporting systems. whether the Office of Price-Anderson
penalties are assessed. DOE disagrees The same commenter (Ex. 48) also Enforcement is considering revising the
and notes that the final rule gives views the rule as providing only existing guidance provided in the
contractors several opportunities to punitive compliance mechanisms. The Operational Procedures (Identifying,
contest notices of violation and provide commenter argued that relying only on Reporting, and Tracking Nuclear Safety
evidence (including witness testimony) punitive measures will reverse the Noncompliances Under PAAA, June
to support their position. These successful partnering of DOE and its 1998 edition) or if the Office will
opportunities include the right, under contractors that has achieved significant develop a stand-alone guidance
final rule section 851.44, to an safety and health performance in recent document for the review and reporting
administrative appeal to the Office of decades. The commenter suggested that determination of potential non-
Hearings and Appeals in accordance the DOE rule will shift the focus of compliances. As stated above, the Office
with 10 CFR 1003, Subpart G, which contractor worker safety and health of Price-Anderson Enforcement intends
establishes procedural regulations for practice to policing for conditional to provide EGSs that will cover NTS
the DOE Office of Hearings and Appeals violations and away from successful reporting thresholds.
with respect to private grievances and proactive programs. DOE disagrees, A number of commenters (Exs. 11, 16,
redress.) The procedures under 10 CFR believing instead that this rule is more 28, 29, 35, 36, 37, 43, 45, 47, 51)
1003.77 also allow petitioners to seek likely to enhance the relationship expressed the opinion that Voluntary
further judicial review of the final order between DOE and its contractors. DOE Protection Program (VPP) sites should
issued by the Office of Hearings and contractors have already made not be subject to programmed
Appeals. contractual commitments to perform inspections or should qualify for a
Another commenter (Ex. 42) their work in accordance with DOE’s reduction in inspections. DOE agrees
expressed concern that the safety and health requirements as that VPP sites are likely to have the best
supplemental notice of proposed established in DOE Order 440.1A. The worker safety and health programs and
rulemaking does not address whether rule will only clarify and strengthen be in substantial compliance with the
provisions of this rule. Nevertheless, complaints, even those made by a in any part of the inspection, except the
DOE believes it is important that VPP private citizen who called with an right to accompany an inspector under
sites be subject to all of the provisions investigation request. DOE agrees that supplemental proposed section
of this rule. The Office does not expect the original language in supplemental 851.10(b)(4). DOE notes that final rule
these sites to have many NTS-reportable proposed section 851.400(c) too board. section 851.20(b) establishes the right
violations, but the Office will respond Accordingly, final rule section 851.40(c) for a worker representative to
as necessary to significant violations clarifies DOE’s intent to allow workers accompany the Director during the
and develop appropriate programmed or their representatives the opportunity physical inspection of the workplace. If
inspection strategies. to request an investigation or inspection a representative is not available, the
One commenter (Ex. 31) asked of a specific work place safety and Director must consult, as appropriate,
whether inspection and investigation health concern. DOE intends to respond with employees on matters of worker
authority will be delegated to the field to all worker and worker representative safety and health. During an evaluation
or site office level. Enforcement requests for investigation or inspection, of a noncompliance or an inspection,
authority rests with the Office of Price- at least to the extent needed to the Office of Price-Anderson
Anderson Enforcement and will not be determine if further action is necessary Enforcement normally interviews
delegated to the field or site office or warranted. If the initial investigation individuals with direct knowledge of
levels. DOE does not, however, intend reveals that further investigation or the workplace to gather information
to interfere with inspection and inspection is unwarranted, the Director such as frequency of exposure, duration
investigation activities conducted by the may, under final rule section 851.40(i), of exposure, and other details. The
field or site offices. A commenter (Ex. close the investigation. Office of Price-Anderson Enforcement
32) suggested that the rule address how It is important to note that the Office expects that, through this process, the
the Office of Price-Anderson of Price-Anderson Enforcement expects appropriate people would be consulted.
Enforcement will take the results of that workers or worker representatives One of the commenters (Ex. 54) was
inspections that are performed at DOE will have first presented their concerns also concerned that a worker’s ability to
sites by the Office of Independent through their respective Employee request and receive copies of
Oversight and Performance Assurance’s Concerns Programs (ECPs), but without inspections and accident investigations
Office of Safeguards and Security satisfactory resolution. Several related in accordance with ISM and with
Evaluations (OA–10) and EH’s Office of comments (Exs. 31, 36, 42, 48) suggested supplemental proposed section
Quality Assurance Programs (EH–31), that this rule recognize the ECP and 851.10(b)(4) may be curtailed by
into account when determining the contractor management as an avenue to portions of this section. DOE disagrees
frequency and necessity of its own resolve concerns involving safety and notes that final rule section
inspections. The Office of Price- matters. Two of these commenters (Exs. 851.20(b), which mirrors the worker
Anderson Enforcement will use all 31, 48) indicated that if the issue cannot rights provisions of DOE Order 440.1A,
available information, from any source, be resolved, then the worker should be clearly establishes that workers have the
in developing enforcement protocols able to request an investigation but not right to obtain results of inspections and
and plans, and making enforcement an inspection; they argued that a request accident investigations, as described in
decisions. for inspection should be handled only final rule section 851.20(b)(6).
Section 851.40(b) requires contractors through the established ECP program or When a contractor becomes the
to cooperate with DOE throughout contractor management chain of subject of an investigation or inspection,
enforcement activities. DOE received no command. final rule section 851.40(d) requires the
comments on section 851.40(b) during DOE notes that final rule sections Director to inform the contractor in
the public comment period. 851.20(a)(6) through (9) establish writing. The written notification must
The right of a worker or worker provisions for contractors to develop describe the purpose of the action and
representative to request an and implement procedures allowing be provided at the initiation of the
investigation is included in final rule workers to express concerns regarding investigation or inspection process.
section 851.40(c). Although the worker workplace hazards and for contractors Three commenters (Exs. 28, 45, 51)
may remain anonymous, the to respond to those concerns. While requested that DOE revise supplemental
investigation request should identify the DOE intends for workers to explore proposed section 851.400(d) to require
activity of concern as specifically as these avenues first, DOE does not feel it the Director to notify a contractor in
possible and include supporting is appropriate to restrict a worker’s right writing prior to the initiation of a
documentation. Several commenters to request an inspection or investigation proceeding under the Major Fraud Act.
(Exs. 30, 54, 55, 60) suggested that by requiring them to try these other A fourth commenter (Ex. 36) asked
persons requesting investigations or options first. DOE disagrees with the whether this section would change the
inspections be allowed to remain comment that inspections should be Office of Price-Anderson Enforcement’s
anonymous. DOE agrees, final rule limited to the ECP or contractor chain practice in defining a ‘‘proceeding’’
section 851.40(c) now includes a of command. Onsite inspections often under the Major Fraud Act. DOE has
provision establishing a worker’s or are a necessary part of an investigation significant experience with the Major
worker representative’s right to remain and may give the Office of Price- Fraud Act in connection with the
anonymous upon filing a request for an Anderson Enforcement the best implementation of part 820.
inspection or investigation. opportunity to verify whether a Accordingly, the same procedures and
Two commenters (Exs. 26, 39) asked violation or noncompliance exists. requirements that DOE has already
DOE to clarify that it is up to the Two commenters (Exs. 54, 55) asked successfully applied to enforcement
Director to determine whether a that employees and their representatives actions under 10 CFR part 820 will
complaint will be investigated and be given the right to accompany the apply to enforcement actions under 10
suggested changing the subject of this inspector under supplemental proposed CFR part 851.
paragraph from ‘‘any person’’ to a section 851.400(c). One of these A commenter (Ex. 47) suggested that
‘‘covered worker.’’ The commenters commenters (Ex. 54) stated that this DOE indicate in the rule that all
thought such a change would avoid the section would not give workers or their information pertaining to the
implication that DOE will investigate all representatives the right to be involved investigation or inspection that is in the
possession of DOE will be provided to inspection. DOE received no comments initiate or close an investigation. If facts
the contractor at the initiation of the on section 851.40(g) during the public presented or discovered during the
investigation or inspection. Although comment period. investigation indicate that further action
DOE generally provides such Section 851.40(h) permits the Director is unwarranted, then the Director may
information to contractors, the Office of to convene, and require a contractor to close the investigation without
Price-Anderson Enforcement must attend, an enforcement conference to prejudice. If, after the initial
retain the right not to disclose certain discuss any information related to a investigation is closed, facts are
information if it believes the situation that might be a violation of a discovered which indicate that the
information may interfere with the requirement in this part. Conference investigation should be reopened or
willingness of individuals to step discussions might include, but are not reconvened, then the Director may
forward on a confidential basis or if limited to, the significance or causes of reopen the investigation.
sharing the information will hinder the a violation, corrective action taken or Section 851.40(j) allows the Director
Office’s enforcement activities. not taken by the contractor, and to issue enforcement letters that state
Therefore, DOE is not adopting this mitigating or aggravating circumstances. DOE’s expectations with respect to any
suggestion. DOE will not make a transcript and the aspect of the requirements of Part 851.
Section 851.40(e) prohibits DOE from conference is not normally open to the The enforcement letter, however, may
releasing to the public any information public. not create the basis for a legally
obtained during an investigation or Two commenters (Exs. 31, 48) enforceable requirement pursuant to
inspection, unless the Director indicated that informal conferences this part. One commenter (Ex. 29)
authorizes the public disclosure of the should never be open to the public since inquired whether supplemental
investigation. Once the Director it would hinder open dialogue and the proposed section 851.400(j) should have
authorizes public disclosure for an cooperative nature of the conference. used the term ‘‘Enforcement Guidance
investigation, the information associated DOE agrees that enforcement
Supplements’’ rather than ‘‘enforcement
with the investigation is a matter of conferences should not normally be
letters.’’ DOE disagrees because the two
public record. Prior to and disclosure, open to the public, but believes that this
terms are separate and distinct.
DOE must determine that disclosure is is a matter that is appropriately within
Enforcement letters are issued in cases
not precluded by the Freedom of the discretion of the Director. This
where DOE decides that an enforcement
Information Act (FOIA), 5 U.S.C. 552, provision is consistent with the Office
action is not required, but concludes
and Part 1004 of this title. of Price-Anderson Enforcement nuclear
that it is important to communicate a
DOE received several comments safety enforcement provisions and
particular message to the contractor. An
expressing concern about the Director’s practices.
The same commenters (Exs. 31, 48) enforcement letter is a vehicle to
discretion to authorize or withhold
public disclosure of information related also noted that if the Director can highlight actions taken by the contractor
to an investigation. Three commenters compel contractor attendance at the that were appropriate and that formed
(Exs. 26, 39, 48) wondered whether the informal conference, then the ‘‘official the basis for not taking more formal
Director’s discretion overrides FOIA, enforcement process’’ has begun at that enforcement actions. The enforcement
Privacy Act, and judicial determinations point and the contractor should attend letter will also usually identify areas (1)
of what otherwise might remain with legal counsel present. DOE has that may have been less satisfactory
confidential or be required to be significant experience with the Major than desired but not sufficiently serious
released. These commenters were Fraud Act in connection with the to warrant enforcement action, and (2)
particularly concerned about protection implementation of part 820. in which contractor attention is required
of classified project or proprietary Accordingly, the same procedures and to avoid a more serious condition that
information. Two of these commenters requirements that DOE has already would require enforcement action. An
(Exs. 39, 48) expressed similar concerns successfully applied to enforcement enforcement letter may also highlight
about supplemental proposed section actions under 10 CFR part 820 will noteworthy contractor practices. EGSs,
851.400(f), which addressed requests for apply to enforcement actions under 10 on the other hand are issued
confidential treatment of information. CFR part 851. With respect to the periodically by the Office of Price-
DOE recognizes these concerns and ‘‘conferences,’’ DOE has determined that Anderson Enforcement to provide
confirms that the Director’s actions with it is appropriate to retain the term clarifying guidance regarding the
respect to release of documents are ‘‘informal conference’’ to retain processes used in enforcement
always subject to the constraints of law. consistency with section 820.22. activities. EGSs provide information or
Final rule section 851.40(e) or 851.40(f) Another commenter (Ex. 47) asked recommendations only and impose no
has been revised to clarify that that contractors be allowed to request requirements or actions on DOE
disclosure of information is subject to informal conferences. DOE agrees; final contractors.
the Freedom of Information Act. rule Appendix B (‘‘General Statement of Section 851.40(k) permits the Director
Section 851.40(f) clarifies that a Enforcement Policy’’), paragraph VII (d) to sign, issue, and serve subpoenas. For
request for confidential treatment of clarifies that a contractor may request an NNSA sites, this responsibility is
information under the Freedom of enforcement conference. assigned to the NNSA Administrator in
Information Act (FOIA), does not Section 851.40(i) permits the Director final rule section 851.45(a). Several
prevent disclosure of the information if to close the investigation or inspection commenters (Exs. 28, 45, 51) argued that
the Director determines the release is in if facts show that further action is this provision would present an
the public interest and is permitted or unwarranted. Two commenters (Exs. 31, apparent conflict of interest if the
required by law. 48) suggested that when the Director investigator can become party to the
During an investigation or inspection, closes an investigation due to lack of judicial process by signing, issuing, and
final rule section 851.40(g) allows any factual evidence or if evidence shows no serving subpoenas. DOE disagrees with
contractor to submit to DOE any violation, then the matter should be this concern and notes that the Director
information that the contractor feels closed without prejudice and may not and NNSA Administrator have each
explains the contractor’s position or is be reopened by the Director. DOE notes been given subpoena authority within
relevant to the investigation or that the Director has the authority to their statutory purview.
Section 851.41—Settlement Section 851.42—Preliminary Notice of and answers to questions set forth in the
Section 851.41 encourages settlement Violation PNOV. Under section 851.42(d), if the
of DOE enforcement proceedings and Section 851.42 permits the Director to contractor fails to submit a reply and all
establishes a basic framework within issue a preliminary notice of violation supporting documents within the
which settlements shall proceed. This (PNOV) to the contractor if the Director allowed time, the contractor
section presents the rights and duties of believes that a violation of this part has relinquishes the right to appeal the
the Director and contractors seeking to occurred. The section lists the specific PNOV. Section 851.42(e) requires that
resolve issues through a consent order. information that must be included in the PNOV be prominently posted in the
Section 851.41(a) states that DOE the PNOV and in the contractor’s reply. area where the violation occurred until
encourages settlement of any The PNOV constitutes a final order with the violation is corrected.
DOE did not receive comments
enforcement proceeding, if settlement is no right of appeal if the contractor fails
related specifically to sections 851.42(a)
consistent with Part 851. At any time, to reply within 30 days. Once final, the
through (e) during the public comment
the Director and contractor may hold a PNOV must be posted. period.
settlement conference, which will not DOE received two general comments
be recorded in a transcript or open to regarding section supplemental Section 851.43—Final Notice of
the public. proposed section 851.402. In the first, Violation
Section 851.41(b) allows the Director three commenters (Exs. 54, 55, 60) noted Section 851.43 requires the Director to
to use a consent order to resolve issues that the supplemental proposal review a contractor’s timely written
in an outstanding proceeding. The contained no requirement to post reply to a preliminary notice of
consent order must set forth the relevant notifications of violation. Two of these violation (PNOV). If the Director
facts, terms, and remedies to which the commenters (Exs. 54, 55) were also determines that a violation occurred,
parties agree and must be signed by both concerned that the section provided no this section allows the Director to issue
parties. The order need not find or right of worker or union appeals or for a final notice of violation that includes
admit that a violation occurred, but worker or union involvement in any specific information listed by this
shall constitute a final order. way in the process. DOE agrees that it section. Unless the contractor petitions
DOE did not receive any comments is appropriate for workers or their the Office of Hearings and Appeals, the
specific to section 851.41(a) or representatives to play a role in the final notice constitutes a final order.
851.41(b), but did receive three process and has revised the rule to Section 841.43(a) establishes that the
comments that relate to 851.41 as a facilitate their participation. In the final Director will review and make a final
whole. One commenter (Ex. 30) was rule, section 851.20(b)(5) gives worker determination regarding a contractor’s
concerned that enforcement actions that representatives the right to accompany timely reply to a PNOV. If the Director
require funding to abate hazards pose a the Director during inspections or, if a determines that a violation has occurred
‘‘special challenge to a self regulated representative is not available, requires or is continuing to occur, the Director
entity.’’ The commenter believes that inspectors to consult employees on may issue the contractor a final notice
such actions should not be settled matters of health and safety. Section of violation as described by section
unless the settlement contains a 851.20(b)(6) gives workers the right to 841.43(b). Specifically, the final notice
resource-loaded plan that will ensure request and receive results of must state that the contractor may
implementation. DOE notes that DOE inspections and accident investigations. petition the Office of Hearings and
field management are involved in all DOE also has included in section Appeals in accordance with 10 CFR Part
decision making related to enforcement 851.42(e) a requirement that PNOVs be 1003, subpart G.
actions, and settlement negotiations posted once they are final. One commenter (Ex. 47)
include appropriate cost considerations. A commenter (Ex. 28) argued that a recommended that supplemental
The same commenter was joined by contractor should give greater weight to proposed sections 851.403 and 851.404
another (Exs. 30, 54) in suggesting that an OSHA decision involving an be revised to provide for appeals to
DOE should allow workers and unions interpretation of an OSHA standard Administrative Law Judges (ALJs),
to elect party status in an enforcement than to a DOE interpretation of the same following the PAAA process contained
proceeding and to participate in standard. DOE notes that OSHA in 10 CFR 820, rather than to DOE’s
settlement negotiations, as is allowed by interpretations of OSHA standards will Office of Hearings and Appeals. DOE
OSHA. The second commenter (Ex. 54) be considered valid unless directed by has not accepted this comment, because
also objected to the fact that the DOE General Counsel. However, DOE initial decisions based on an evidentiary
supplemental proposed rule would reserves the right to deviate from an record are prepared by the Office of
permit all settlement records to be kept OSHA interpretation when it applies to Price-Anderson Enforcement. Therefore,
secret and would provide no appeal a unique operation at a DOE site. In a trial de novo (new trial) is unnecessary
right on the settlement. DOE disagrees such cases, DOE will issue its own and the Office of Hearings and Appeals
with these commenters and does not interpretation for purposes of is the appropriate forum to which
intend to provide this opportunity. The implementing the DOE worker safety appeals may be referred.
Director is responsible for carrying out and health program. Under section 841.43(c), a contractor
the intent of enabling legislation as Section 851.42(a) authorizes the relinquishes any right to appeal if the
delegated by the Secretary. A Director to issue a PNOV. The PNOV contractor fails to make a timely petition
commenter (Ex. 45) requested that DOE must include specific information under for review of a final notice of violation.
define the term ‘‘settlement.’’ After section 851.42(b), including as the facts In the absence of a petition for review
carefully reviewing this comment, DOE on which the alleged violation is based, the final notice becomes a final order.
believes the settlement process is proposed remedies and civil penalties,

adequately described in final rule and a statement obliging the contractor Section 851.44—Administrative Appeal
section 851.41 and need not be to reply in writing within 30 days. Section 851.44 establishes the right of
separately defined. The final rule does Section 851.42(c) requires that the a contractor to petition the Office of
define the outcome of a settlement (that contractor’s reply cover the relevant Hearings and Appeals for review.
is, a consent order), in section 851.3. facts, any extenuating circumstances, Section 851.44(a) describes this right,
which must be exercised within 30 experts throughout the Department as discussed in further detail in the
calendar days of receipt of the final part of the Order development process. sections that follow.
notice of violation. Section 851.44(b) As a result, at the time of publication of
1. Construction Safety
clarifies that in order to exhaust final DOE Order 440.1A, these provisions
remedies; the contractor must make reflected the state-of-the-art in corporate Appendix A, section 1 (formerly
such a petition in accordance with safety and health program requirements supplemental notice of proposed
section 851.44(a). and were established with the rulemaking section 851.202) establishes
DOE received several general concurrence of each DOE Program requirements and responsibilities that
comments on the review process. Secretarial Office. Since the order was apply to the construction managers and
Several commenters (Exs. 15, 31, 47) published, the Department has gained construction contractors for planning
suggested that a third party reviewer close to a decade of experience in and implementing appropriate worker
(not DOE) should handle contractors’ successfully implementing these safety and health measures during
petitions instead of the Office of functional area provisions on DOE construction activities. For the
Hearings and Appeals. These worksites. These sections build on the construction section of this rule, it was
commenters recommended that lessons learned over these years and necessary to provide separate
contractors be given an opportunity to establish appropriate functional area definitions in final rule section 851.3
challenge a proposed civil penalty enhancements as deemed necessary by that are applicable to construction in
either before an ALJ or in a U.S. District DOE subject matter experts in order to circumscribe those activities to
Court, as provided for in 10 CFR 820. conjunction with the respective DOE which the construction safety
The commenters pointed out that ALJs internal technical advisory committees. provisions apply and to assign
routinely hear OSHA cases and have a Several commenters (Exs. 16, 27, 28, responsibilities for these activities. The
greater familiarity with OSHA definition of ‘‘construction’’ was taken
42, 45) expressed concern that the
requirements and case law. One of these directly from OSHA’s standards, which
provisions of this Appendix would
commenters (Ex. 15) went on to suggest in turn has taken its definition from the
require contractors to expend additional
that DOE establish a small independent Davis-Bacon Act regulating wage rates
effort and resources to submit safety and
review commission as a final step in the for federally funded construction
health plans above and beyond the
administrative review process, as is projects.
safety and health program called for The definition for ‘‘construction
used effectively by OSHA. A related under supplemental proposed Section
comment (Ex. 61) inquired whether the contractor’’ as provided in order to
851.100 or to perform an extensive discern where in the contract hierarchy
final rule would provide a mechanism review and analysis of existing
for contesting or overturning potential the responsibility for implementing the
programs to ensure compliance with the provisions of a construction contract
findings that a contractor believes to be rule. DOE does not believe that this is
technically inaccurate. As discussed lies. Depending on the contracting
the case. The fundamental requirements situation, the construction contractor
with regards to final rule section 851.43,
captured in Appendix A of the final rule may be the management and operating
the Office of Price-Anderson
reflect those of DOE Order 440.1A, contractor if the work is performed
Enforcement prepares initial decisions
which has been applicable at DOE directly by his forces or it may be a
based on an evidentiary record.
worksites for many years. Consequently, subcontractor to the management and
Therefore, a trial de novo (new trial) is
DOE believes that contractors are operating contractor or a subcontractor
unnecessary and the Office of Hearings
already complying with these to a separate construction management
and Appeals is the appropriate forum to
requirements and thus minimal, if any, contractor.
which appeals may be referred.
additional effort will be needed. Similarly, the definition of
Section 851.45—Direction to NNSA One commenter (Ex. 28) sought ‘‘construction manager’’ was provided
Contractors clarification on whether plans required in order to discern where in the project
Section 851.45 establishes that for under the functional area sections of the hierarchy the responsibility for primary
NNSA contractors, it is the NNSA rule must be submitted for DOE oversight of the construction contractor
Administrator, rather than the Director, approval. Section 851.11 of the final lies. For the purpose of this rule, the
who issues subpoenas and notices. rule requires contractors to submit to a construction manager could be DOE if
Section 851.45(a) gives the NNSA written worker safety and health the construction work is performed
Administrator authority to sign, issue, program that provides the methods for directly by the management and
and serve subpoenas, orders, implementing the requirements of operating contractor or it may be the
disclosures, preliminary notice of Subpart C (which includes the management and operating contractor if
violations, and final notices. The functional areas) to the appropriate the construction work is performed by
Administrator must consider the Head of DOE Field Element for a subcontractor to the management and
Director’s recommendation. approval. Accordingly, a description of operating contractor. It could also be a
how the contractor will meet the separate firm hired by DOE or the
Appendix A—Worker Safety and requirements of Appendix A of the final management and operating contractor to
Health Functional Areas rule must be included in the worker perform construction management
This appendix establishes the safety and health program that is services.
mandatory requirements for submitted for DOE approval. The definitions for ‘‘construction
implementing the applicable functional These sections also establish project’’ and ‘‘construction worksite’’
areas required by 10 CFR 851.24 of this provisions for a new functional area were provided in order to circumscribe
part. These provisions from DOE Order within the comprehensive worker the activities and geographic location,
440.1A, ‘‘Worker Protection protection program to address biological respectively, to which the construction
Management for DOE Federal and safety. DOE believes this new functional safety provisions of this rule apply.
Contractor Employees,’’ were derived area is warranted to address concerns Some commenters (Exs. 16, 27, 28, 36,
through years of coordination, analysis, that arose from the anthrax terrorist 42, 45) expressed concern that the
and review and comment procedures attacks of October 2001. Provisions for provisions of this section would require
seeking input from top subject matter each of the functional areas are contractors to expend additional effort
and resources to submit safety and activities that use standard personal described within the activity analysis.
health plans above and beyond the protective equipment require a hazard The provision of supplemental
safety and health program called for analysis. DOE’s intent, as stated in proposed section 851.202(a)(3) that
under supplemental proposed section Appendix A section 1(a), is to require would have made a worker’s use of
851.100 or to perform an extensive activity level hazard analysis for each appropriate protective measures a
review and analysis of existing definable construction activity. The condition of employment was cited by
programs to ensure compliance with the need for personal protective equipment four commenters (Exs. 16, 31, 36, 48) as
rule. As stated previously, DOE does not does not dictate the need to perform a reducing flexibility in labor/
believe that this is the case, because the hazard analysis. Rather, the hazard management relations. DOE agrees with
requirements in Appendix A, section 1, analysis, through the identification of these concerns. Accordingly, this
of the final rule reflect those of DOE workplace hazards, dictates the need for provision was revised in Appendix A
Order 440.1A. workplace controls and protective section 1(a)(3), of the final rule to state
One commenter (Ex. 54) requested equipment. that the construction contractor must
that references to OSHA’s Process Safety One commenter (Ex. 48) argued that it require that workers acknowledge being
Management standards (29 CFR is more appropriate to perform an informed of the hazards and protective
1910.119 and 1926.64) be added to the ongoing hazard analysis rather than measures associated with assigned work
construction safety requirements of the performing the hazard analysis before activities and to require that workers
rule. DOE notes, however, that final rule initiating the construction project. DOE failing to use the required controls be
section 851.23 requires contractors to agrees in part. As noted in Appendix A subject to the contractor’s disciplinary
comply with all standards at 29 CFR section 1(a), the hazard analysis process. One commenter (Ex. 16) argued
1910 and 1926, so a separate reference required under section 1(a)(1) is that the rule should include an
is not needed in Appendix A, section 1, required for ‘‘each separately definable enforcement provision that does not
of the final rule. construction activity (e.g., excavations, hold contractors responsible for willful
Three commenters (Exs. 16, 28, 45) foundations, structural steel, roofing).’’ non-compliance on the part of
were of the opinion that the language in DOE’s intent with this provision is that employees. DOE agrees with this
this section of the supplemental the construction manager prepares a commenter and has added a provision
proposal was subjective and more hazard analysis prior to the start of each in final rule section 851.20(b) to
suitable as contract language than as discrete construction activity within the prohibit workers from taking actions
enforceable language in a rule. DOE project. DOE acknowledges that these inconsistent with the rule. As
considers the ‘‘subjectivity’’ of this activities will likely occur at different mentioned in the section-by-section
language—now captured in Appendix stages of the overall project and that discussion for section 851.5 of the final
A, section 1, of the final rule—to be some contractors may find it easier to rule, DOE will develop enforcement
useful in allowing for a graded approach prepare the related analyses as the guidance for the rule that will include
in the implementation of the project progresses rather than all at one provisions similar to OSHA’s
construction safety requirements. A time. DOE believes that this decision is unpreventable employee misconduct
graded approach can also be applied to best left to the discretion of the defense—outlined in OSHA’s Field
the development and approval of health construction manager provided that the Inspection Reference Manual, Chapter
and safety plans by the construction hazard analyses meet the requirements III, paragraph C.8.c(1).
manager, which was an area of concern of section 1(a)(1). Appendix A section 1(b) requires the
for other commenters (Exs. 36, 42). Several commenters (Exs. 26, 36, 39, construction contractor to have a
Other commenters (Exs. 20, 29, 37, 45, 42, 45, 48, 51) noted that the wording designated representative on the
51, 54) requested clarification on the of supplemental proposed section construction worksite during periods of
responsibilities of various contractors at 851.202(a)(1)(iii) implied the need for a active construction and that this
a DOE construction site. Accordingly, professional engineer for a wide variety representative is knowledgeable of
DOE has introduced the terms of services beyond those prescribed by project hazards and have the authority
‘‘construction contractor’’ and OSHA’s construction standards, 29 CFR to take actions. The section further
‘‘construction manager’’ and specified 1926. DOE agrees that the language of clarifies that the representative must
distinct responsibilities and the supplemental proposal could be conduct frequent and regular
requirements for each type of contractor, misinterpreted and, as a result, this inspections of the worksite to identify
in addition to providing definitions for provision was edited in Appendix A and correct hazards.
these two terms in section 851.3— section 1(a)( iii), of the final rule to Several commenters (Exs. 16, 31, 36,
Definitions. reflect the requirement for professional 42, 47, 48, 49) objected to the
The provisions of section 1(a)(1) of engineering services consistent with requirement for a construction
Appendix A focus on the requirement OSHA’s standards. contractor’s designated representative to
for construction contractors to prepare A number of commenters (Exs. 15, 19, be on the construction worksite at all
activity hazard analyses for project 42, 45, 48, 49, 51) took issue with the times. These commenters also
activities prior to commencement of wording of supplemental proposed questioned the need for daily worksite
work on the affected activities. One section 851.202(a)(1)(iv) and the need to inspections by the contractor’s
commenter (Ex. 40) pointed to the need provide qualifications for competent designated representative and requested
for construction managers to provide a persons. This provision was changed in clarifications on the terms ‘‘on site at all
list of known worksite risks (e.g., site Appendix A section 1(a)(iv) of the final times’’ and ‘‘active construction’’ (Exs.
characterization data) to the rule to require the identification of the 20, 29, 39, 47, and 48). The need for a
construction contractor so that they can competent person for each work contractor’s representative to be onsite
be appropriately addressed in the activity, consistent with OSHA during active construction derives from
construction contractor’s activity hazard requirements. the Federal Acquisition Regulation
analysis. Section 1(a)(ii) was added to Appendix A section 1(a)(2) requires (FAR) Parts 36.506 and 52.236–6,
the final rule to address this concern. the construction contractor to ensure Superintendence by the Contractor,
Another commenter (Ex. 29) that workers are aware of foreseeable which state that ‘‘At all times during
requested clarification on whether hazards and the protective measures performance of this contract and until
the work is completed and accepted, the workers must report. Accordingly, the construction contractors’ safety and
Contractor shall directly superintend word has been deleted from the rule and health plans. These comments focused
the work or assign and have on the the text clarified to refer to hazards that on the fact that DOE generally does not
worksite a competent superintendent have not been previously identified or have the personnel resources to fulfill
who is satisfactory to the Contracting evaluated. Another commenter (Ex. 48) this requirement. DOE agrees with these
Officer and has authority to act for the questioned the appropriateness of the comments and has changed the
Contractor.’’ The term ‘‘active term ‘‘immediate corrective action’’ on approving authority in section 1(a)(1) to
construction’’ in section 1(b) of the grounds that it implies permanent the construction manager.
Appendix A is effectively defined by the correction. DOE disagrees that the term
2. Fire Protection
addition of the parenthetical statement is inappropriate. Appendix A section
clarifying that ‘‘active construction’’ 1(c) specifically discusses the Appendix A section 2 (formerly
excludes periods of inactivity such as conditions for which interim control supplemental notice of proposed
weekends or weather delays. With measures are appropriate (i.e., when rulemaking section 851.203), establishes
regard to the frequency of safety and immediate corrective action is not the basic requirements for a
health inspections, the text in section possible or the hazard falls outside the comprehensive fire protection program.
1(b) has been changed to replace the project scope). Numerous commenters (Exs. 2, 3, 4, 5,
term ‘‘daily’’ with ‘‘frequent and On the subject of workers reporting 8, 13, 15, 29, 31, 36, 39, 42, 47, 48, 49,
regular’’ in an effort to be consistent hazards not previously identified or 61) objected to the approach taken in
with OSHA’s construction safety evaluated, one commenter (Ex. 31) the supplemental proposed rule with
standard addressing this issue, 29 CFR responded that, because current regard to fire protection. Section
1926.20(b)(2). practices involve workers reporting 851.203 of the supplemental proposal
One commenter (Ex. 49) requested safety concerns to their immediate included specific requirements for fire
that the term ‘‘onsite’’ in supplemental supervisors, the requirement be protection and fire department
proposed section 851.202(a)(4) be reworded to include reporting of operations. DOE agrees that a more
replaced with ‘‘available’’ to hazards to either the immediate pragmatic and less prescriptive
accommodate for the designated supervisor ‘‘or’’ the designated approach to the delineation of
representative’s lunch breaks. DOE representative. DOE disagrees. requirements for fire protection and
believes that, in the absence of activity Designated representatives, as discussed emergency services is appropriate.
on the construction worksite during a above, are persons with the authority to Consequently, the final rule has been
lunch break, there is no need for the act on behalf of the construction revised to include the text from the fire
presence of a designated representative. contractor and, therefore, are the protection portion of DOE Order
However, if construction continues appropriate persons to inform of the 440.1A, which has been in effect since
during the designated representative’s hazards. This does not, however, 1998.
lunch break, the contractor must ensure preclude the contractor from One commenter (Ex. 5) suggested that
that another representative is designated establishing internal procedures to the rule prohibit the purchase or use of
and present onsite. require workers to report hazards to self-illuminating exit signs or other
One commenter (Ex. 16) objected to a their immediate supervisor and the signs at nuclear facilities since these
requirement in supplemental proposed designated representative. signs are a source of tritium and are
section 851.202(a)(4) for specific Appendix A section 1(d) requires difficult to disassociate from a nuclear
training for designated representatives. construction contractors to prepare a event at a nuclear facility. DOE notes
DOE agrees with this commenter’s written construction project safety and that the purchase or use of self-
concern and has removed the provision health plan to implement the illuminating exit signs or other signs at
from the final rule. requirements of section 1 of the nuclear facilities is not within the scope
Other commenters (Exs. 20 and 47) Appendix. The section stipulates that of the final rule. Self-illuminating exit
requested a definition for the term the contractor must obtain the signs or other signs are commercially
‘‘designated representative.’’ DOE notes construction manager’s approval of the available and issued under the Nuclear
that, although the rule does not provide plan before commencing any work Regulatory Commission’s general
such a definition, section 1(b) provides covered by the plan. license.
that the designated representative must There were several comments (Exs. Section 2(a) of Appendix A to the
be a person who is knowledgeable of the 15, 40, 47, 48, 55) regarding the final rule establishes the specific
project’s hazards and has full authority supplemental proposal’s requirement in requirements for the implementation of
to act on behalf of the construction section 851.202(b) of having the a comprehensive fire protection
contractor. monetary threshold of the Davis-Bacon program to ensure workers a safe and
Appendix A section 1(c) is derived Act trigger the need for a written healthful workplace. These
from provisions originally included in construction safety plan. The Davis- requirements, along with the applicable
supplemental proposed section Bacon act was used in previous DOE NFPA standards, and DOE fire safety
851.202(a)(4). These provisions require policy, as a means for deciding which directives, technical standards and
that workers be instructed to report activities were constructions. However, guidance, have historically been
identified hazards to the contractor’s DOE has decided, after considering the considered necessary for a
designated representative and that comments that using a law governing comprehensive fire safety program. The
contractors take certain steps up to and wage rates as the determining factor for section further clarifies that the program
including stopping work if they cannot a safety regulation is inappropriate and must include appropriate facility and
immediately correct the hazards. often confusing. Hence, reference to the site-wide fire protection, fire alarm
Several commenters took issue with a Davis-Bacon Act has been deleted from notification and egress features, and that
variety of terms used in the original the final rule. contractors must assure access to a fully
provision of the supplemental proposal. There were also numerous comments staffed, trained, and equipped
Specifically, one commenter (Ex. 27) (Exs. 15, 16, 25, 28, 29, 36, 37, 42, 45, emergency response organization that is
objected to the use of the word 49, 51) concerning the requirement for capable of responding in a timely and
‘‘unforeseen’’ in describing hazards that DOE to review and approve effective manner to site emergencies.
Two commenters (Exs. 31, 39) of facility-specific requirements within One commenter (Ex. 13) suggested
objected to the requirement that all NFPA codes and standards, DOE agrees that DOE consider adding the
contractors must implement a fire that any requirement that is not directly Underwriters Laboratories (UL) listings
protection and response program related to the safety and health of and Factory Mutual data sheets to
(emphasis added). According to the workers is not applicable in the context Appendix A section 2. This commenter
commenters, other options are available, of this rule. However, these did not, however, provide a rationale for
including reliance on another requirements may apply to DOE this suggestion. Without a rationale DOE
government agency or a public fire facilities through DOE directives, such could make determine the need for the
department. The requirement for a as with DOE O 420.1, which are made inclusion of such standards in the final
current Baseline Needs Assessment and applicable by contract. rule, therefore, DOE has not included
the need for written pre-fire strategies, A number of commenters (Exs. 2, 4, them in the final rule.
plans, and standard operating 22, 49, 54, 55, 61) objected to the Another commenter (Ex. 54)
procedures, as would be provided by inclusion of specific editions of the requested that references to OSHA’s
section 851.203(a)(7) and (a)(8) in the applicable NFPA standards, arguing that Process Safety Management standards
supplemental notice of proposed as this would result in the enforcement (29 CFR 1910.119 and 1926.64) be
rulemaking was of concern to other of obsolescent criteria. As discussed added to the fire safety requirements of
commenters (Ex. 36, 39, 48). These previously, DOE has decided against the rule. DOE notes that final rule
commenters were of the view that these incorporating into the rule most of the section 851.23 requires contractors to
requirement should not apply to standards included in the supplemental comply with all standards at 29 CFR
contractors that do not operate fire proposed rule. 1910 and 1926. Hence, a separate
departments. DOE agrees with the Two commenters (Exs. 7, 29) reference is not needed in Appendix A
commenters, and has revised the text to expressed concern that adoption of section 2 of the final rule. Several
emphasize that contractors must have NFPA Standard 1710, and the commenters (Exs. 2, 4, 16, 48, 49, 59,
access (emphasis added) to a fully enforcement of requirements from other 61) objected to the lack of explicit
staffed, trained, and equipped NFPA standards that govern fire reference to the ‘‘equivalency’’ concept
emergency response organization that is department operations would impose that has historically been used within
capable of responding in a timely and significant burdens (in terms of time, the DOE fire safety community to
effective manner to a spectrum of site staffing, paperwork, etc.) on site rationalize alternative approaches to fire
emergencies. However, DOE expects emergency services organizations for safety. DOE agrees in part and
that the decision regarding the type of which there are insufficient budgets. concludes that, beyond the definition of
emergency services capability that is a formal exemption process to this rule,
Other commenters (Exs. 5, 37, 39, 42,
credited is based, in part, on the results no explicit reference to ‘‘equivalencies’’
48) stated their belief that the non-fire
of a Baseline Needs Assessment. is necessary, as this concept is an
department oriented requirements
A few commenters (Exs. 31, 42, 49, integral part of all NFPA codes and
would also significantly increase costs.
61) requested that DOE define standards and DOE fire safety directives.
DOE agrees and has deleted the NFPA
‘‘qualified fire protection engineer.’’ The recommendation made by two
standards governing fire department
DOE has removed this term from the commenters (Exs. 36, 42) that the
operations from the final rule.
final rule. Authority Having Jurisdiction (AHJ) be
Appendix A section 2(b), requires One commenter (Ex.1) suggested that responsible for approving fire safety
inclusion of appropriate fire protection NFPA Standard 1600, ‘‘Disaster and code and standard equivalencies (as
criteria and procedures, analyses, Emergency Management and Business required by DOE Order 420.1A) instead
hardware and systems, apparatus and Continuity Programs’’ be included in of the DOE site manager (as would be
equipment, and personnel in the fire the rule. DOE disagrees with this required by the proposed rule) is
protection program to ensure that the recommendation because this standard acceptable to DOE.
objective in Appendix A section 2(a) is is included in other DOE directives,
met. This includes meeting the such as DOE O 420.1, which apply, 3. Explosives Safety
applicable building code and National through contracts, to DOE facilities. Appendix A section 3 (formerly
Fire Protection Association (NFPA) Several commenters (8, 15, 29, 31, 35, supplemental notice of proposed
Codes and Standards or exceeding them, 36, 37, 42, 46, 49) objected to the list of rulemaking section 851.204), of the final
when necessary, to meet safety NFPA and other industry standards rule establishes safety provisions for
objectives, unless explicit written relief because there was no consideration for DOE contractors performing work
has been granted by DOE. the fact that many DOE facilities were involving explosive materials.
Numerous commenters (Exs. 2, 4, 5, 8, constructed years ago under the Appendix A section 3(a) establishes the
16, 19, 22, 24, 31, 37, 42, 45, 49, 53, 54, ‘‘code(s) of record.’’ DOE agrees with the primary requirement for DOE
58, 61) objected to the number of NFPA commenter and has revised the list of contractors to develop, implement, and
codes and standards proposed by DOE standards to more closely mirror the list maintain a comprehensive explosives
in the supplemental notice of proposed of standards required under DOE O safety program. These provisions this
rulemaking, as many appeared to have 440.1A. It is DOE’s intent that program must assure that workers,
little, or no relevance to activities at contractors use DOE fire safety visitors, and members of the public are
DOE sites. Similarly, another directives which establish the concept not exposed to significant explosives
commenter (Ex. 39) asserted that some of compliance with a ‘‘code of record.’’ threats (blast overpressure, fragment,
of the requirements in those codes and Another commenter (Ex. 49) debris, structural collapse, heat and
standards applied to the protection of questioned on how NFPA standards fire).
structures and were not directly related would apply in leased locations where DOE explosives handling and
to the safety and health of workers. DOE the contractor has no enforcement processing operations are an integral
has decided that an exhaustive list of authority and does not control the fire part of DOE weapons and weapons-
applicable NFPA standards is department manpower, training and related development, manufacturing,
unnecessary and has not included a list equipment. DOE has deleted the NFPA and dismantlement activities as well as
in the final rule. With regard to the issue standards from the final rule. DOE security operations. Safety in all
operations associated with explosive Explosive Safety Manual. Specifically, DOE critically evaluated each of these
materials is an ongoing, primary the Manual states that if blasting comments and considered related input
concern and must be given high priority operations are routine in the context of from the Department’s Pressure Safety
in all program direction and construction or tunneling blasting, then Committee in crafting the pressure
management activities. the more appropriate OSHA 1910 and safety section of the final rule. DOE
DOE received a number of comments 1926 standards may be used. However, notes that the DOE Pressure Safety
on the explosives safety provisions magazines must be sited according to Committee includes both federal and
included in section 851.204 of the the Department of Defense (DoD) contractor experts from within the DOE
supplemental proposed rule. A majority Criteria in DoD 6055.9, DOD complex. Based on this evaluation and
of these commenters (Exs. 8, 15, 20, 37, Ammunition and Explosives Safety an evaluation of comments on the
59) stated that the rule should require Standards. Transportation of explosives overall supplemental proposed rule in
contractors to comply with DOE Manual across DOE sites must be in conformity general, DOE revised the pressure safety
440.1–1, DOE Explosives Safety Manual. with the Manual. DOE does not believe, section of the final rule to closely follow
These commenters argued that the however, that explosive demolition of the requirements of the Pressure System
provisions in this section of the facilities should be considered a routine Safety section in DOE Order 440.1A.
supplemental proposal were vague and use of explosives due to its unique risks. DOE Order 440.1A has governed
were not as comprehensive and clear as As a result, DOE intends that such pressure system safety within DOE for
the provisions of the DOE Explosives operations would be governed by the last eight years and has been well
Safety Manual. The commenters noted requirements in the DOE Technical scrutinized through an expert technical
specific concerns regarding reference to Standard on Explosive Demolition of review processes.
an undefined certification program to Structures. The sections that follow provide a
train persons assigned to explosives Several commenters (Exs. 9, 16, 22, detailed discussion of the provisions of
operations (Exs. 37, 59); the omission of 59) questioned the incorporation of the pressure safety section of the final
a grandfather clause to address older NFPA 495, Explosives Materials and rule as well as a summary of, and DOE
facilities that cannot meet newer NFPA 498, Standards for Safe Havens responses to, the specific comments
requirements (Ex. 59); the omission of and Interchange Lots for Vehicles received related to these provisions.
criteria related to firebreaks and fire Transporting Explosives, in Subpart C of One commenter (Ex. 20) expressed
exits (Exs. 37, 59); and the omission of the supplemental proposal. These concern that intensive configuration
critical components of the lightning commenters noted that the standards are
management would be required to
protection program (Exs. 37, 59). These administer the requirements of the rule
not applicable to the military style of
commenters noted that the DOE and research would be necessary to
explosives materials used in DOE and
Explosives Safety Manual was establish a clearly documented baseline
felt that their inclusion in the rule
specifically developed to address for compliance. In response to this
would only confuse covered contractors
explosives safety in DOE operations and concern, DOE notes since the pressure
with conflicting and less rigorous safety
felt that reliance on the Manual rather safety requirements in the final rule
policies. DOE agrees with these
than the incomplete explosives safety incorporate the existing requirements in
commenters and has removed the
requirements in the supplemental DOE Order 440.1A, DOE believes that
standards from the final rule.
proposal would provide for more contractors, who are already in
effective protection of the DOE work Appendix A section 3(c) of the final compliance with DOE Order 440.1A,
force. rule clarifies that contractors must will require minimal, if any effort to
DOE agrees with these commenters determine the applicability of the implement the rule requirements.
and has accordingly replaced the explosives safety requirements to Appendix A section 4(a) describes
technical provisions that were included research and development laboratory what constitute pressure systems and
in the supplemental proposal with the type operations consistent with the DOE requires contractors to establish safety
basic requirement in Appendix A level of protection criteria established in policies and procedures to ensure they
section 3(b) that contractors comply the DOE Explosives Safety Manual. This are designed, fabricated, tested,
with DOE Manual 440.1–1A, Explosives provision was added to the final rule to inspected, maintained, repaired, and
Safety Manual (DOE M 440.1–1A), address one commenter’s (Ex. 36) operated by trained and qualified
Contractor Requirements Document concern that the explosives safety personnel in accordance with applicable
(Attachment 2), January 9, 2006. As provisions of the supplemental proposal and sound engineering principles.
noted by the commenters, this Manual did not accommodate laboratory Two commenters (Ex. 42, 49)
establishes safety controls and standards activities where the forms and requested a definition of pressure
that are not addressed in other existing quantities of explosive materials did not systems. DOE notes that the DOE
DOE or non-DOE regulations. The represent a significant personnel or Pressure Safety Committee has, in the
Manual closes the considerable safety facility hazard. draft Implementation Guide to DOE
gap created by DOE’s unique activities, Order 440.1A, defined pressure systems
4. Pressure Safety
governs the DOE explosives safety in the following terms: ‘‘Pressure
process, and ensures that explosives Appendix A section 4 (formerly systems are comprised of all pressure
safety is commensurate with actual risk. supplemental notice of proposed vessels, and pressure sources including
One commenter (Ex. 39) questioned rulemaking section 851.205), of the final cryogenics, pneumatic, hydraulic, and
why the explosives safety provisions in rule establishes pressure safety vacuum. Vacuum systems should be
the supplemental proposal specifically requirements for DOE contractors considered pressure systems due to
excepted the use of explosive material performing activities at covered their potential for catastrophic failure
for routine construction, demolition, workplaces. DOE received numerous due to backfill pressurization.
and tunnel blasting. Although, this comments regarding the corresponding Associated hardware (e.g. gauges, and
specific exception has been removed section of the supplemental proposed regulators), fittings, piping, pumps, and
from the text of the final rule, the rule expressing concern or requesting pressure relief devices are also integral
exception, with additional clarification clarification of proposed pressure safety parts of the pressure system’’. DOE has
and rationale, is a part of the DOE provisions. included this definition in final rule
section 851.3 and in Appendix A appearance of being inappropriate or (because of pressure range, vessel
section 4(a). In addition, DOE unsafe for components within the scope geometry, use of special materials, etc.),
emphasizes that cryogenic and vacuum of the ASME code.’’ The commenter contractors must implement measures to
systems are included as pressure recommended presenting both provide equivalent protection and
systems. requirements in a manner that clarified ensure a level of safety greater than or
Two commenters (Ex. 29, 48) their relationship and scope. In equal to the level of protection afforded
suggested that pressure retaining vessel response DOE notes that the by the ASME code. DOE notes that
safety requirements were best imposed corresponding final rule section has documented organizational peer review
through contract provisions or through been revised to present the relevant is acceptable for the design drawings,
specifications for new components, and codes within the pressure safety sketches, and calculations that must be
that operational safety requirements requirements in Appendix A section reviewed and approved by a
were already contained in the 4(b). Additionally, DOE reiterates that professional engineer.
applicable national consensus standards this new section follows the
(OSHA regulations) incorporated in the 5. Firearms Safety
requirements of the pressure system
proposed rule. The commenters safety section in DOE Order 440.1A. Appendix A section 5 of the final rule
specifically suggested modifying the According to Appendix A section (formerly supplemental notice of
language in proposed section 851.205(a) 4(b)(1) through (3) of the final rule, proposed rulemaking section 851.208),
to require contractor safety policies and contractors must ensure that all pressure establishes firearms safety policies and
procedures to ensure that design, vessels, boilers, air receivers, and procedures for security operations, and
fabrication, testing, inspection, supporting piping systems conform to training to ensure proper accident
maintenance and operation of pressure the applicable ASME Boilers and prevention controls are in place. Two
systems is performed by ‘‘qualified Pressure Vessel Safety Codes, the ANSI/ commenters (Exs. 27, 45) asserted that
personnel in accordance with applicable ASME B.31 Piping Code or the strictest the requirements in Appendix A section
safety or national consensus standards.’’ applicable state and local codes. These 5 of the final rule appear to be a
In response, DOE notes that the provisions are consistent with the long summarization of existing DOE Orders
corresponding Appendix A section held policy of only citing the ASME and will likely require extensive review
(4)(a) follows the requirements of the code on pressure vessels or the ANSI and analysis for contractors to come into
Pressure System Safety section in DOE piping code, which are mainly compliance with the rule requirements.
Order 440.1A, according to which manufacturing and fabrication codes. Since the industrial hygiene
contractors must establish safety The research and development requirements in the final rule
policies and procedures to ensure that aspects of DOE often require that some incorporate the existing requirements in
pressure systems are designed, pressure vessels are built to contain very DOE Order 440.1A, DOE believes that
fabricated, tested, inspected, high pressure that is above the level of for contractors that are already in
maintained, repaired, and operated by applicability of the ASME Pressure compliance with DOE Order 440.1A, it
trained and qualified personnel in Safety Code. Other times, new materials should require minimal, if any, effort to
accordance with applicable and sound or shapes are required that are beyond implement the rule requirements.
engineering principles. Further DOE the applicability of the ASME Code. In Some commenters (Exs. 5, 36, 25, 42)
stresses that training of personnel using, these cases, addressed under Appendix requested clarification on whether the
maintaining, repairing, or constructing A section 4(c), rational engineering requirements of the rule apply to sites
pressure systems is paramount. The provisions are set to govern the vessels without armed security forces and to the
inspection and maintenance of the construction and use and assure occasional use of firearms for research
systems is also essential as they decay equivalent safety. purposes or for activities like the
over time and a reasoned engineering Appendix A section 4(c) provides capture and study of wildlife. The
approach must be used to maintain guidelines for equivalent measures that provisions of Appendix A section 5(a)
safety. contractors may implement in the event apply only to contractors engaged in
Appendix A section 4(b) further that national consensus standards are DOE activities involving the use of
describes the applicable national not applicable to ensure pressure system firearms. The scope and nature of work
consensus standards including safety and meet the requirements of the activities involving specific types of
professional and state and local codes, final rule. hazards in this case, the use of firearms
that contractors must conform to with A few commenters (Ex. 29, 42, 49) determines whether the requirements of
respect to pressure system safety in DOE sought clarification of what constituted a particular safety program apply to the
covered workplaces. an ‘‘independent peer review’’ to workplace. Generally, the rule
DOE received numerous comments determine if national consensus codes requirements do not apply to sites that
(Exs. 2, 8, 16, 19, 29, 37, 45, 49) and standards were applicable or not. In do not have armed security forces. Other
expressing concern over the inclusion of response to this concern, DOE has use of firearms at DOE facilities, such as
ASME codes in proposed section revised the language of the the use of firearms for research (e.g.,
851.201(c) and suggested they be corresponding final rule section to material testing) or for activities like the
eliminated or modified. In response to eliminate use of the phrase capture and study of wildlife, also could
these concerns, DOE has revised the ‘‘independent peer review.’’ One create conditions that warrant the
corresponding final rule section commenter (Ex. 49) further questioned application of Appendix A section 5(a)
Appendix A section 4(b) to eliminate what approved measures were to be firearms safety provisions.
the proposed tables and any cited implemented in the event consensus Two commenters (Exs. 42, 49) were of
standards that lacked relevance to the standards were not applicable. In the opinion that rule did not correctly
pressure safety requirements of the rule. response, DOE has provided greater identify the types of contractors that
One commenter (Ex. 16) expressed clarification in final rule Appendix A must comply with the firearms safety
concern over the separation of section 4(c) of the measures that are to requirements. The commenters
requirements for compliance with be used. The final rule Appendix A suggested that use of the term ‘‘a
ASME codes and ensuring pressure section 4(c) provides that when national contractor engaged in DOE activities
safety and suggested it gave ‘‘the consensus codes are not applicable involving the use of firearms’’ would be
more appropriate than the phrase ‘‘a and duty assignments to ensure overall Two commenters (Exs. 27, 45)
contractor responsible for a workplace’’ policy objectives and performance asserted that the requirements in
which had been used in the criteria are being met by qualified supplemental proposed section 851.209
supplemental notice of proposed personnel. appeared to be a summarization of
rulemaking. DOE agrees with the According to the provisions of existing DOE Orders and would likely
commenters and the language in Appendix A section 5(e), contractors require extensive review and analysis
Appendix A section 5(a) had been must implement procedures related to for contractors to come into compliance
revised accordingly. firearms training, live fire range safety, with the rule requirements. Since the
Written procedures must address qualification, and evaluation activities, industrial hygiene requirements in the
firearms safety, engineering and including procedures requiring that: (1) final rule incorporate the existing
administrative controls, as well as Personnel must successfully complete requirements in DOE Order 440.1A,
personal protective equipment initial firearms safety training before DOE believes that for contractors that
requirements according to Appendix A being issued any firearms; (2) are already in compliance with DOE
section 5(a)(1). authorized armed personnel must Order 440.1A, minimal, if any, effort
Appendix A sections 5(a)(2)(i) demonstrate through documented will be required to implement the rule
through (viii) establish requirements for limited scope performance tests both requirements.
contractors to develop specific technical and practical knowledge of One commenter (Ex. 37)
procedures for various activities that firearms handling and safety on a semi- recommended that Appendix A section
involve the use of firearms including the annual basis; (3) all firearms training 6 reference DOE’s Industrial Hygiene
storage, handling, cleaning, inventory, lesson plans must incorporate safety for (IH) manual and the OSHA standards in
and maintenance of firearms, all aspects of firearms training task lieu of the American Conference of
ammunition, pyrotechnics etc. performance standards; (4) firearms Governmental Industrial Hygienists’
Procedures must also be developed for safety briefings must immediately (ACGIH’s) threshold limit values (TLV)
the use of firing ranges by personnel precede training, qualifications, and manual. DOE notes that final rule
other than DOE or DOE contractor evaluation activities involving live fire section 851.23 requires contractors to
protective forces personnel. As a and/or engagement simulation systems; comply with the standards listed in that
minimum, procedures must be (5) a safety analysis approved by the section, which include OSHA standards
established for: (1) Storage, handling, Head of DOE Field Element must be as well as the ACGIH TLVs. Further, the
cleaning, inventory, and maintenance of developed for the facilities and purpose of the DOE IH manual is to
firearms and associated ammunition; (2) operation of each live fire range prior to serve as a guidance tool rather than as
activities such as loading, unloading, implementation of any new training, regulatory text. Therefore, DOE believes
and exchanging firearms. These qualification, or evaluation activity, and that it is neither necessary nor
procedures must address use of bullet the results of these analyses must be appropriate to reference the DOE IH
containment devices and those incorporated into procedures, lesson manual in Appendix A section 6, in
techniques to be used when no bullet plans, exercise plans, and limited scope place of the standards already required
containment device is available; (3) use performance tests; (6) firing range safety by section 851.23.
and storage of pyrotechnics, explosives, procedures must be conspicuously The absence of any requirement for
and/or explosive projectiles; (4) posted at all range facilities; and (7) live worker participation within the
handling misfires, duds, and fire ranges, approved by the Head of provisions of rule was an issue for two
unauthorized discharges; (5) live fire DOE Field Element, must be properly commenters (Exs. 54 and 55). Sections
training, qualification, and evaluation sited to protect personnel on the range, 851.20(a) and (b) of the final rule
activities; (6) training and exercises as well as personnel and property not requires worker participation in work-
using engagement simulation systems; associated with the range. related safety and health activities and
(7) medical response at firearms training Contractors must ensure that the evaluations. This section also requires
facilities; and (8) use of firing ranges by transportation, handling, placarding, worker access to various types of safety
personnel other than DOE or DOE and storage of munitions conform to the and health information, in addition to
contractor protective forces personnel. applicable DOE requirements to satisfy providing for other workers’ rights.
In order to comply with the the requirements of Appendix A section Therefore, there is no need for worker
provisions of Appendix A section 5(b), 5(f). participation requirements to be
contractors must ensure that personnel specified separately in Appendix A
6. Industrial Hygiene
responsible for the direction and section 6.
operation of the firearms safety program Appendix A section 6 of the final rule Appendix A section 6 in the final rule
are professionally qualified and have (formerly supplemental notice of contains provisions for contractor
sufficient time and authority to proposed rulemaking section 851.209), implementation of a comprehensive and
implement the procedures under this provides the industrial hygiene program effective industrial hygiene program to
section. requirements. Industrial hygiene is an reduce the risk of work-related disease
Appendix A section 5(c) requires that important component of a or illness. One commenter (Ex. 16)
contractors must ensure that firearms comprehensive worker protection considered the use of the term
instructors and armorers have been program. The contents of this functional ‘‘workplace’’ in the supplemental
certified by the Safeguards and Security area were developed by the DOE proposed 851.209(a) confusing,
National Training Center to conduct the Industrial Hygiene Coordinating especially for sites where DOE utilizes
level of activity provided. Additionally, Committee (IHCC) to identify those multiple contractors. DOE agrees with
personnel must not be allowed to minimum requirements necessary to the commenter and, accordingly, this
conduct activities for which they have implement an effective industrial term had been deleted from the text of
not been certified. hygiene program. The minimum set of Appendix A section 6.
Appendix A section 5(d), mandates requirements that resulted from this Appendix A section 6(a) requires
that contractors conduct formal process reflects the recommendations of initial or baseline surveys and periodic
appraisals assessing implementation of industrial hygiene experts from across resurveys and/or exposure monitoring
procedures, personnel responsibilities, the DOE complex. as appropriate of all work areas or
operations to identify and evaluate identification or definition for Several commenters (Exs. 27, 28, 36,
potential worker health risks. Several carcinogens. 42, 48) expressed concern that the
commenters (Exs. 12, 15, 16, 35, 42, and Appendix A section 6(e) of the final requirements in supplemental proposed
48) contended that conducting initial rule requires that the contractors’ section 851.207 would expose
and baseline surveys of all work areas industrial hygiene program be managed contractors to dual regulation because
or operations can be burdensome and and implemented by professionally and they would be subject to Part 851, based
costly, especially for areas undergoing technically qualified industrial on DOE directive and to DHHS and
or intended to undergo decontamination hygienists. Agriculture rules. These concerns are
and decommission. DOE disagrees with unfounded. When 10 CFR 851 is made
this contention. The requirements of 7. Biological Safety effective, including the Biological Safety
Appendix A section 6(a) allow Appendix A section 7 of the final rule requirements of Appendix A section 7,
contractors the flexibility to determine (formerly supplemental notice of DOE N 450.7 will expire and will not be
the appropriate level of assessment proposed rulemaking section 851.207), renewed. As stated above, today’s final
based on the complexity of the provides the biological safety program rule incorporates the updated
operation and the presence and level of requirements. In February 2001, the requirements in the DHHS and
workplace hazards. The effort for DOE Office of Inspector General (DOE– Department of Agriculture rules.
assessments should be graded according IG) issued a report entitled ‘‘Inspection One commenter (Ex. 28) sought
to the level of risk each hazard poses. of Department of Energy Activities clarification on whether supplemental
Regarding the question of Involving Biological Select Agents’’ proposed section 851.207 would be part
‘‘grandfathering’’ existing assessments, (DOE/IG–0492). In this report the DOE– of the worker health and safety plan that
if a baseline assessment has already IG made 7 recommendations regarding must be submitted for DOE approval.
been accomplished, as would be the the handling and use of biological Section 851.11 of the final rule requires
case for contractors already in agents within the Department. In contractors to submit to a written
compliance with the provisions of DOE response to this report the department worker safety and health program that
O 440.1, and the workplace hazards and developed, through its directives provides the methods for implementing
activities have not changed, then a new system, DOE Notice 450.7 ‘‘The Safe the requirements of Subpart C (which
baseline assessment of risks is not Handling, Transfer, and Receipt of includes the functional areas, such as
required. However, DOE agrees with the Biological Etiologic Agents at biological safety) to the appropriate
commenters that areas or operations Department of Energy Facilities’’. Head of DOE Field Element for
undergoing decontamination and Proposed 10 CFR 851.207 reflected the approval. A description of how the
decommission could change on a daily requirements contained in DOE Notice contractor will meet the requirements of
basis. As a result, more frequent 450.7. Appendix A section 7 of the final rule
assessments are needed to ensure that must be included in the worker safety
In November 2001, the Deputy
all hazards are identified and and health program that is submitted for
Secretary of Energy indicated in a memo
controlled. DOE approval.
that the Department must be a One commenter (Ex. 15) requested a
Appendix A section 6(b), requires
responsible steward of biological definition for the term ‘‘biological
coordination with planning and design
etiologic agents and directed etiological agents’’ which was included
personnel to anticipate and control
Departmental elements to have DOE in supplemental proposed section
facility and operations related health
Notice 450.7, The Safe Handling, 851.207 and is used throughout
hazards as one of the elements of the
Transfer, and Receipt of Biological Appendix A section 7 of the final rule.
industrial hygiene program that
contractors must implement. Etiologic Agents at the Department of DOE interprets the term ‘‘biological
Coordination with cognizant Energy Facilities, incorporated into etiological agent’’ to mean any agent
occupational medical, environmental, applicable contracts. DOE Notice 450.7 capable of causing disease in humans,
health physics, and work planning lays out the Department’s expectations plants or animals. Other commenters
professionals is another element of the for BioSafety at the DOE facilities. (Exs. 6, 15) noted that the term
industrial hygiene program that is The Department of Health and Human ‘‘biological etiological agents’’ includes
required by Appendix A section 6(c). Services (DHHS) and the Department of many agents that are of little importance
According to Appendix A section Agriculture issued new regulations to workplace safety or do not pose a
6(d), the contractor’s industrial hygiene covering the possession, use, and security risk and therefore,
program must include policies and transfer of select agents and toxins as recommended that this term be replaced
procedures to control risks from interim final rules (42 CFR Part 73, 7 by either ‘‘Select Agents’’ as defined by
identified and potential occupational CFR Part 331, and 9 CFR Part 121) in 42 CFR 73, or ‘‘Risk Group 3 and 4
carcinogens. Two commenters (Exs. 16, December 2003. The rules were issued agents.’’ DOE believes that the
48) asserted that the rule fails to specify in response to the Public Health requirements in Appendix A section
or define the identified or potential Security and Bioterrorism Preparedness 7(a)(1) are meant to apply to not only
carcinogens. DOE notes that section and Response Act of 2002 and provide select agents but to any agent that may
851.23 of the final rule mandates updated requirements to those found in cause disease. In order to comply with
compliance with several safety and DOE Notice 450.7. The updated this intent of the rule, the site
health standards, including OSHA requirements are included in this rule to institutional biological safety committee
standards and the ACGIH TLVs, that cover DOE contractors. (IBC) should review all work with
address occupational carcinogens. Appendix A section 7(a) (proposed as biological agents and determine if
These standards identify occupational 851.207(a)) requires the establishment of appropriate controls are being put into
carcinogens and provide additional an institutional biological safety place, although a graded approach
information in the areas of exposure committee (IBC) to review work with should be used for the reviews to reflect
levels, hazard control, and worker biological agents to ensure their the severity of the hazard.
protection for different carcinogens. compliance with appropriate federal Appendix A section 7(a)(1) requires
Consequently, Appendix A section 6(d) and state guidelines for this type of the establishment of an IBC to review
does not provide a separate activity. work with biological agents to ensure
compliance with appropriate federal address these issues. The IBC should submission to the appropriate Head of
and state guidelines for this type of note in its review of proposals if DOE Field Element a copy of each CDC
activity. Several commenters (Ex. 25, 37, security has been properly addressed. Form EA–101, Transfer of Select Agents,
45, and 51) expressed concern that this However, the policy for security at a upon initial submission of the Form
provision could be interpreted to apply DOE facility should be addressed by the EA–101 to a vendor or other supplier
to contractors that do not possess or use security department. requesting or ordering a biological select
biological etiological agents in the Appendix A section 7(a)(2) requires agent for transfer, receipt, and handling
workplace. DOE intends that contractors maintenance of an inventory and status in the registered facility. The completed
must implement the provisions of of biological etiologic agents. This copy of the Form EA–101, documenting
Appendix A section 7(a)(1) wherever information must be submitted to the final disposition and/or destruction of
they are applicable. A contractor that DOE field and area office as part of an the select agent must also be submitted
does not perform work involving annual report describing the status and to the appropriate Head of DOE Field
exposure to biological agents is not inventory of biological etiologic agents Element within 10 days of completion
required to implement any provisions of and the program. One commenter (Ex. of the Form EA–101.
Appendix A section 7. Another 42) requested definition of the terms Appendix A section 7(a)(5) of the
commenter (Ex. 15) argued that the ‘‘status’’ and ‘‘readily retrievable final rule requires the IBC to confirm
requirements in Appendix A section inventory’’ and sought clarification on that the site safeguards and security
7(a)(1) would result in additional costs what DOE expectations were for the plans and emergency management
and increased workload for the IBC. contents of the annual status report. programs address biological etiologic
DOE agrees that the term ‘‘readily agents, especially biological select
DOE considers it good practice to
retrievable’’ was unclear and has agents. One commenter asserted that the
review any work undertaken with
removed the term from the text of implementation of requirements in
biological agents. Although the IBC is
Appendix A section 7(a)(2) in the final supplemental proposed section
required to review all work with
rule. DOE interprets ‘‘status’’ as 851.207(e) would result in high costs to
biological agents to determine if
including information that will the contractors. As stated above, DHHS
appropriate controls are in place, DOE
determine whether the biological and the Department of Agriculture have
believes that the extent and rigor of the
etiologic agents are on site, dead or live, established requirements for Security
review will depend upon the risk and
frozen or in active storage as well as and Emergency Response plans through
hazard associated with the agent being information on the person(s) 42 CFR Part 73.11 and 73.12. These
used. Application of this graded responsible. This information is rules are enforced by DHHS and the
approach should limit any increases in necessary to keep DOE informed on the Department of Agriculture, not DOE.
the workload and associated costs. biological etiologic agent activities being Therefore, Appendix A section 7(a)(5) is
Another commenter (Ex. 29) undertaken on the Departments sites. included to require the contractor to
recommended that the word Appendix A section 7(a)(3) requires confirm that all site safeguards and
‘‘appropriate’’ in supplemental the submission of each Laboratory security plans and emergency
proposed section 851.207(a)(1) be Registration/Select Agent Program management programs that address
changed to ‘‘applicable.’’ DOE agrees, registration application package to the biological etiologic agents are in place.
and has revised the text in Appendix A, head of the appropriate DOE field According to the requirements in
section 7(a)(1)(i) of the final rule element. One commenter (Ex. 15) was Appendix A section 7(a)(6), the IBC
accordingly. Appendix A section concerned that this provision may affect must establish an immunization policy
7(a)(1)(ii) of the final rule instructs every revision to the registration, for personnel working with biological
contractors to confirm the presence of including those involving staff transfers etiologic agents based on the evaluation
site security, safeguards, and emergency of materials. DOE’s intent is for the of risk and benefit of immunization. The
management plans and procedures, provision to apply to the initial CDC has established guidelines for
when performing work with biological registration submittal because this will immunizations and these guidelines
etiologic agents. Two commenters (Ex. allow DOE to become aware of all should be consulted in the
15 and 42) found a lack of clarity in the bioagent activity. However, staff establishment of an immunization
provisions of supplemental proposed transfers of materials need not be policy.
section 851.207(a)(2) and the reported to DOE as long as the
requirement for IBC review of security 8. Occupational Medicine
Department of Health and Human
plans and procedures; in their view, Services and the Department of Appendix A section 8 of the final rule
security matters are typically not Agriculture rules and requirements are (formerly supplemental notice of
considered to be an area of IBC met. Other commenters (Exs. 15, 42) proposed rulemaking section 851.210),
expertise. DOE disagrees, believing the asked for the withdrawal of establishes the requirements for
provisions in Appendix A section supplemental proposed section occupational medicine services.
7(a)(1)(ii) of the final rule appropriately 851.207(c). DOE disagrees with this Appendix A section 8(a) requires
reflect the importance of maintaining request. As reported by DOE–IG (DOE/ contractors to provide comprehensive
security measures with respect to IG–0492), DOE may not have knowledge occupational medicine services to
bioagents. The DHHS and Department of of the presence of biological agents on workers employed at a covered work
Agricultures rules (42 CFR 73.11 and a site. Appendix A section 7(a)(4) was place. One commenter (Ex. 33)
73.12), establish requirements for included to ensure that DOE is aware of expressed concern that supplemental
Security and Emergency Response plans all biological agent activity occurring at proposed section 210 included many
to be developed and implemented for DOE sites, as well as any information additional requirements for the
select agents. DOE believes there must submitted to the Center for Disease preparation and implementation of
be a determination of how much review Control and Prevention (CDC) regarding occupational medical programs beyond
and oversight is needed for all types of how and where biological agents will be those in the initial proposed rule. The
biological etiological agents and that the used. commenter also believed that
IBC can provide the sites security Appendix A section 7(a)(4) of the supplemental proposed section 851.210
organization with the expertise to final rule contains provisions for expanded requirements for site
occupational medical directors (SOMD) provision in Appendix A section 8(a) of commenter (Ex. 54) recommended
in other areas of occupational medicine the final rule. adding workers and their
regardless of the nature or size of DOE One commenter (Ex. 42) believed that representatives to supplemental
activities. DOE has considered the supplemental proposed rule section proposed section 851.210(d) which
comment but believes that the additions 851.210(a) was unclear in what was requires contractors to promote
are necessary. The practice of considered to be a ‘‘comprehensive’’ communication and coordination
occupational medicine is constantly occupational medical program or between all environmental, safety, and
evolving and medical advances which services, and requested that DOE health groups. DOE agrees that worker
must be incorporated into site provide elements of the OMP in the participation is a critical component of
occupational medicine services to rule. DOE does not agree with the a successful safety and health program.
ensure the health of workers in commenter and notes that the rules’ This section imposes requirements only
maintained and/or improved, and that implementation guide is the appropriate on contractors to provide necessary
DOE maintains its medical programs place to provide elements of the information to occupational medicine
consistent with occupational medicine occupational medicine program. providers
practice standards and guidelines. Three commenters (Exs. 28, 45, 51) Appendix A section 8(d)(1) of the
Another commenter (Ex. 48) asserted recommended removing: ‘‘At sites with final rule requires contractors to provide
that the occupational medical services operations performed by more than one occupational medicine providers with
specified in supplemental proposed contractor, several contractors may access to information about site and
section 851.210 would result in agree to use services provided under a employee hazards and exposures and
substantial cost for non-management single contractor’s OMP,’’ from any changes in them. Specifically,
and operating contractors. DOE does not supplemental proposed section Appendix A section 8(d)(1)(i) of the
agree with the commenter’s assertion a 851.210(a) because they felt that this final rule requires current information
requirement that all levels of contractors language was specific to multi-employer about actual or potential work-related
provide comprehensive occupational DOE sites and need not be included in site hazards (chemical, radiological,
medicine services will create a negative the rule. DOE agrees, and has deleted physical, biological, or ergonomic);
health and safety situation for DOE, this sentence from the final rule. section 8(d)(1)(ii) requires employee job-
including opening DOE up to increased However, contractors at multi-employer task and hazard analysis information,
medical liability. In DOE’s experience, sites may choose to follow this approach including essential job functions;
small contractors and subcontractors are to comply with the medical services section 8(d)(1)(iii) requires actual or
capable of providing more that a requirement. potential work-site exposures of each
minimal OSHA-level required Appendix A section 8(a)(1) of the employee; and section 8(d)(1)(iv)
protection and health care. Therefore, final rule establishes that the specifies information on personnel
the final rule retains the occupational occupational medicine services must actions resulting in a change of job
medicine service provisions. provide services for workers who work functions, hazards or exposures to be
Two commenters (Exs. 16, 28) on a DOE site for more than 30 days in provided to the occupational medicine
believed that program-type documents a 12-month period and for workers who providers.
to supplement the worker safety and are enrolled for any length of time in a One commenter (Ex. 48) expressed
health program were not necessary. The medical or exposure monitoring concern about supplemental proposed
commenters recommended that this program required by this rule and/or section 851.210(d)(3) because it would
requirement be deleted, or integrated any other applicable Federal, State or require the SOMD to be engaged in
with the overall worker safety and local regulation, or other obligation as determining the need for surveillance in
health program. DOE does not agree specified in Appendix A section 8(a)(2) each individual’s case. The commenter
with the commenter and believes that of the final rule. stated that in some cases, such as union
the documents should be a part of the Appendix A section 8(b) of the final construction work, the collective
overall worker safety and health rule establishes that occupational bargaining agreement may not permit
program. medicine services must be under the medical screening of workers for fitness.
Another commenter (Ex. 48) direction of a graduate of a school of DOE understands the commenter’s
questioned if a contractor operating a medicine or osteopathy who is licensed concern and has omitted the language,
limited occupational medicine program, for the practice of medicine in the state ‘‘prior to medical placement or
such as a first aid station appropriate for in which the site is located. surveillance evaluations’’ from final rule
construction, is required to adopt all of Appendix A section 8(c) of the final Appendix A section 8(d)(1)(iii).
the elements in supplemental proposed rule requires that occupational medicine One commenter (Ex. 48) expressed
section 851.210, assuming that the physicians, occupational health nurses, concern that supplemental proposed
contractor desires to continue providing physician’s assistants, nurse section 851.210(d)(i) included
these services after the effective date of practitioners, psychologists, employee ergonomic assessments. The commenter
the rule. DOE contends that operating a assistance counselors, and other asked what would such a requirement
first aid station is but one element of a occupational health personnel involve (i.e., what guidelines and
comprehensive occupational medicine providing occupational medicine applicable standards would be used;
program (OMP). DOE intends for this services must be licensed, registered, or what constitutes an adequate ergonomic
rule to apply to all covered contractors, certified as required by Federal or State evaluation; what are the required
including construction contractors. law where employed. credentials for an evaluator; and what
One commenter (Ex. 16) felt that the Appendix A section 8(d) of the final constitutes a violation). DOE notes that
use of the term ‘‘workplace’’ in rule states that contractors must provide a detailed explanation of ergonomics
supplemental proposed section the occupational medicine providers and the information requested by the
851.210(a) could easily result in with access to hazard information by comment is not appropriate for a rule,
unintended confusion and extensive promoting its communication, but will be discussed in the
debate for sites where DOE utilizes coordination, and sharing among implementation guide to the rule.
multiple contractors. DOE agrees with operating and environment, safety, and One commenter (Ex. 49)
the commenter and has modified the health protection organizations. One recommended that DOE change
supplemental proposed section workplace for evaluation of job Appendix A section 8(f)(1) requires
851.210(d)(1) to read: ‘‘Current available conditions and issues relating to that employee medical, psychological,
information about actual or potential workers’ health. and employee assistance program (EAP)
work-related site hazards (chemical, Appendix A section 8(e) stipulates records must be kept confidential,
physical, biological, or ergonomic);’’ that a designated occupational medicine protected from unauthorized access, and
supplemental proposed section provider must: (1) Plan and implement stored under conditions that ensure
851.210(d)(2) to read: ‘‘Employee job- the occupation medicine services; and their long-term preservation.
task and hazard analysis information, (2) Participate in worker protection Furthermore, the rule specifies that
including essential job functions, as teams to build and maintain necessary psychological records must be
requested by the SOMD;’’ and partnerships among workers, their maintained separately from medical
supplemental proposed section representatives, managers, and safety records and in the custody the
851.210(d)(3) to read: ‘‘Actual or and health protection specialists in designated psychologist. This provision
potential work-site exposures of each establishing and maintaining a safe and is consistent with 10 CFR 712.38(b)(2)
employee prior to medical placement or healthful workplace. which applies to the DOE Human
surveillance evaluations, as requested One commenter (Ex. 16) Reliability Program. Appendix A section
by the SOMD.’’ DOE elected not to add recommended that DOE delete the 8(f)(2) establishes that access to these
the suggested qualifiers. Limiting the proposed rule section 851.210(e)(2) that records must be provided in accordance
requirement only to ‘‘available’’ required a formal written plan detailing with DOE regulations implementing the
information or only that information methods and procedures implementing Privacy Act and the Energy Employees
‘‘requested by the site occupational the OMP on the basis that such a Occupational Illness Compensation
medicine provider’’ would significantly requirement would place an Program Act.
constrain the collection and unnecessary burden on the SOMD since One commenter (Ex. 62) requested
dissemination of critical data. many contractor OMPs currently require that the proposed rule provision
Several commenters (Exs. 16, 36, 42, a series of medical program procedures, 851.210(f)(1) prohibits the SOMD and
49) believed that supplemental rather than a higher level program their staff from providing employers or
proposed section 851.210(d)(4) which document. The commenter further their lawyers with personal medical
would require the SOMD to be notified stated that Subpart B already required information without the employee’s
of employee job transfers should only be an overall written worker safety and consent. DOE notes that all medical
required if the transferred employee health program that must provide for information is subject to the Privacy Act
would be exposed to new or different effective implementation of the worker of 1974 and the Health Insurance
hazards. DOE believes that the safety and health requirements of Portability and Accountability Act and
occupational medicine provider should Subpart C. DOE notes the commenters is not released without signed consent
know where to locate the employee for concerns and has revised the rule of the affected worker or other legal
health related follow-ups, and how to accordingly. authorization.
contact an employee in the case of an Appendix A section 8(f) requires that Appendix A section 8(g) specifies that
emergency. a record, containing any medical, health the occupational medicine services
Appendix A section 8(d)(2) of the history, exposure history, and provider must determine the content of
final rule requires contractors to notify demographic data collected for the the worker health evaluations. These
the occupational medicine providers occupational medicine purposes, must evaluations must be conducted under
when an employee has been absent be developed and maintained for each the direction of a licensed physician, in
because of an injury or illness for more employee for whom medical services accordance with current sound and
than 5 consecutive workdays (or an are provided. Furthermore, the rule acceptable medical practices, and in
equivalent time period for those stipulates that all occupational medical accordance with all pertinent statutory
individuals on an alternative work records must be maintained in and regulatory requirements, such as the
schedule). One commenter (Ex. 48) accordance with Executive Order 13335, Americans with Disabilities Act. One
stated that the proposed rule section Incentives for the Use of Health commenter (Ex. 48) suggested that DOE
851.210(d)(5) would place a significant Information Technology. Several eliminate supplemental proposed rule
burden on the SOMD in cases of off-the- commenters (Exs. 5, 15, 25, 29, 39, 42, section 851.210(f)(2) because the rule
job illness, and did not specify if the 48) expressed concern over the extended the occupational medical
injury or illness must be work-related or proposed rule provision 851.210(f) that program into the domain of disability
not. required all records containing any evaluations under the Americans with
Appendix A section 8(d)(3) requires medical, clinical, health history, Disabilities Act (ADA). DOE disagrees
contractors must provide the exposure history, and demographic data and has retained the provision in the
occupational medicine provider collected under OMP be kept in final rule since occupational medicine
information on, and the opportunity to electronic format, beginning January service providers are required to
participate in, worker safety and health 2007. Most of these commenters cited conduct post offer/pre-placement
team meetings and committees. One significant costs as the basis for their physical and mental examinations in
commenter (Ex. 25) expressed concern concern. Another commenter (Ex. 49) accordance with the ADA.
that the proposed rule section believed that the proposed rule Several commenters (Exs. 16, 25, 47,
851.210(d)(6) required SOMDs to be provision required all medical records 49) took exception to the requirement in
offered the opportunity to participate in collected under OMP be kept in proposed rule section 851.210(f)(3) for
worker safety and health team meetings electronic format, beginning January the SOMD to maintain an up-to-date list
and committees, yet worker safety and 2007, should be clarified to apply only of all medical evaluations and tests that
health teams or committees were not for medical records generated on or after are offered and to submit this list
mentioned anywhere else in the January 1, 2007. DOE has modified the annually through the Cognizant Field
supplemental proposed rule. final rule to be consistent with Element to the Office of Environment,
Appendix A section 8(d)(4) requires Executive Order 13335 which requires Safety and Health. These commenters
that contractors provide occupational that medical records be available suggested eliminating this requirement.
medicine providers with access to the electronically by 2015. One commenter (Ex. 16) suggested the
process would be more efficient if the with DOE records management DOE has modified the language in final
list of medical evaluations was included regulations. rule Appendix A section 8(g)(2)(i) to
in the information in the overall Worker Appendix A section 8(g)(2) requires include the term ‘‘evaluation’’ in place
Safety and Health Program. DOE agrees certain health evaluations to be of ‘‘examination.’’
with the commenters and has conducted when deemed necessary by Two commenters (Exs. 39, 49) sought
eliminated the requirement from the the occupational medicine provider for clarification of the term ‘‘job transfer.’’
final rule. the purpose of providing initial and One commenter (Ex. 49) suggested
Appendix A section 8(g)(1) requires continuing assessment of an employee’s defining the term as ‘‘involving new or
that workers must be informed of the fitness for duty. One commenter (Ex. 62) different hazards,’’ while the other
purpose and nature of the medical believed that the rule should explicitly commenter (Ex. 39) inquired whether
evaluations and tests offered by the bar the SOMD from ‘‘prescribing tests, both new and existing employee
occupational medicine provider. including behavioral science exams, for movement between jobs was covered
Specifically, Appendix A section purposes of carrying out retaliation under the provision. DOE notes that
8(g)(1)(i) requires that the purpose, against employees who were engaged in final rule Appendix A section 8(g)(2)(i)
nature and results of evaluations and protected activities, such as reporting clarifies ‘‘job transfers’’ as transfers to
tests must be clearly communicated waste, fraud, abuse or unlawful or jobs with new functions and hazards.
verbally and in writing to each worker unsafe activities, unless the un-coerced Additionally, DOE notes that job
that is being provided with testing and consent of the employee was secured in transfers for the purposes of reporting to
that the communication must be writing.’’ DOE believes that the site occupational medicine
documented in the worker’s medical occupational medicine providers are department, remains the same
record as specified in Appendix A very sensitive to informed consent regardless of whether the employee is
section 8(g)(1)(ii). which causes them to explain and ask new or existing and means any change
Two commenters (Exs. 15, 47) workers to sign consent for evaluations in job tasks, titles, exposures, and/or job
proposed elimination of the provision in and examinations. DOE further notes description.
proposed rule section 851.210(f)(5) that that workers have the right and option Appendix A section 8(g)(2)(ii)
required medical test and result related to decline any portion of an specifies that periodic, hazard-based
communication be documented in the examination, or all medical evaluations medical monitoring or qualification-
medical chart with signatures of both or examinations. However, refusing based fitness for duty evaluations as
the occupational health examiner and mandatory examinations may result in required by regulations and standards,
worker. These commenters pointed out difficulties placing the worker or as recommended by the occupational
that supplemental proposed rule section appropriately in a job. medicine services provider, will be
851.210(f)(4) required communication of Appendix A section 8(g)(2)(i) requires provided at the required frequency. DOE
the purpose and nature of the tests and that at the time of employment entrance did not receive comments on this
suggested this, along with inclusion of or transfer to a job with new functions proposed provision during the public
language such as ‘‘and individual and hazards, a medical placement comment period.
results discussed with the employee,’’ evaluation of the individual’s general Appendix A section 8(g)(2)(iii)
could be sufficient to meet the health and physical and psychological specifies use of diagnostic examinations
requirement of proposed rule section capacity to perform work be conducted to evaluate employee’s injuries and
851.210(f)(5). One of the commenters to establish a baseline record of physical illnesses in order to determine work-
(Ex. 15) asserted that the requirement condition and assure fitness for duty. relatedness, the applicability of medical
was ‘‘far in excess of the community One commenter (Ex. 54) sought restrictions, and referral for definitive
standard for the practice of medicine for clarification of the criteria for care, as appropriate. One commenter
routine medical tests.’’ ‘‘emotional capacity’’ as referred to in (Ex. 47) favored either eliminating the
Conversely, in order to further supplemental proposed rule section phrase ‘‘degree of disability’’ or
strengthen the requirement in proposed 851.210(f). The commenter expressed substituting the phrase with ‘‘apply
rule section 851.210(f)(5) and prevent concern that this requirement would be medical restrictions as appropriate.’’
post-examination changes to employee interpreted to mean that the DOE has eliminated the phrase ‘‘degree
medical records without the employee’s determination of emotional capacity of disability’’ in the corresponding final
consent, one commenter (Ex. 62) was left entirely to the SOMD with no rule Appendix A section 8(g)(iii).
favored adding the language, apparent limitations or requirements. In Additionally DOE notes that the
‘‘modifications to an employee’s response to this concern, DOE has medical restriction provision has been
medical chart cannot be made without replaced the term ‘‘emotional capacity’’ greatly modified in the final rule section
the concurrence and signature of the with ‘‘psychological capacity’’ in the Appendix A section 8(h).
employee.’’ DOE believes that the site final rule. DOE further notes that the Another commenter (Ex. 25)
occupational medicine records are final rule makes allowance for the expressed concern that supplemental
created and maintained, updated, and involvement of licensed, registered or proposed rule section 851.210(f)(6)(iii),
reviewed in accordance with accepted certified psychologists in the would pose a challenge for the SOMD
medical practice. DOE regulations and occupational medicine service process. to win the trust of workers in the
medical professionals have explicit Thus DOE believes that such determination of the work-relatedness of
guidelines on how to modify records so professionals have the requisite training disease and degree of disability, given
that changes are tracked. Additionally, and knowledge to apply clinically that the occupational medicine
DOE notes that employees may officially established criteria in the determination physician worked for the contractor (or
request a copy of their record. After of an individual’s psychological multiple contractors). Additionally the
reviewing the record, if the employee capacity. commenter expressed the opinion that
wishes to provide a dated, signed, One commenter (Ex. 47) suggested the determination of work-relatedness
written statement about an element term ‘‘medical placement examination’’ would increase the potential for worker
within the record, they may do so. The in supplemental proposed rule section compensation claims and associated
attachment from the employee will 851.210(f)(6)(i) be replaced with the liability, which ‘‘contractors would
remain with the record in accordance term ‘‘medical placement evaluation.’’ rather avoid regardless of the merits of
the claim.’’ DOE believes that a basic protecting the worker, co-workers, and facilitate their rehabilitation and safe
tenet of occupational medicine is to the company. return to work and to minimize lost
assist workers and management in the Many commenters (Exs. 16, 25, 36, time and its associated costs. Two
determination of the work-relatedness of 42) sought additional clarification on commenters (Exs. 30, 62) expressed
illness and injury. Hence trained and whether return to work health concern that the requirement in
certified occupational health providers evaluations were merely for absences supplemental proposed rule section
are expected to retain professional due to injuries or illnesses, or some 851.210(g)(2), for the occupational
impartiality and decide claims on the other unique situation (e.g., return from medicine program to ‘‘monitor ill and
basis of their merits. Furthermore to active military duty) that were deemed injured workers to facilitate their
minimize the potential for any appropriate by the SOMD, and not for rehabilitation and safe return to work
subjectivity in medical determinations, return to work from vacations or other and to minimize lost time and its
DOE has eliminated use of the phrase non-medically related absences. DOE associated costs,’’ encourages the SOMD
‘‘degree of disability’’ in the final rule believes that the corresponding final to return workers to the job before they
Appendix A section 8(g)(iii). rule Appendix A section 8(g)(2)(iv) are well. The commenters asserted that
Appendix A section 8(g)(2)(iv) adequately clarifies that return to work this placed the SOMD in the posture of
specifies that after a work-related injury evaluations are necessary only when an serving two masters: the patient’s health
or illness or an absence due to any employee has been absent for illness or and well being, and the economic
injury or illness lasting 5 or more injury for 5 or more days. interests of the contractor. As previously
consecutive workdays (or an equivalent Appendix A section 8(g)(2)(v) discussed in this section, occupational
time period for those individuals on an provides that at the time of separation medicine providers are bound by
alternative work schedule), a return to from employment, individuals shall be medical and legal obligations to put the
work evaluation will determine the offered a general health evaluation to patient’s interest first and make
individual’s physical and psychological establish a record of physical condition. recommendations to the contractor
capacity to perform work and return to DOE received many comments with about fitness-for-duty and/or return-to-
duty. One commenter (Ex. 54) suggested respect to the need for termination work status without breaching
that supplemental proposed rule section exams. One commenter (Ex. 49) confidence of a non-occupational
851.210(f)(6)(iv) clarify that contract suggested that termination exams under diagnosis or condition without the
language took precedence over SOMD supplemental proposed rule section patient’s permission. For example, the
determinations. The commenter 851.210(f)(6)(v) only be required for occupational medicine provider can
proposed including a requirement for a ‘‘employees enrolled in HAZWOPER or state that the worker has a condition for
third party medical review (at the laser surveillance programs at the time which restrictions are recommended,
expense of the contractor) in the event of separation.’’ DOE disagrees and and state specifically what those
of a disagreement between the SOMD believes it is imperative that termination restrictions are. Restrictions are based
and a worker’s own physician. DOE exams and evaluations be conducted on on the best interest of the physical and
believes that the occupational medicine all workers in order to minimize the mental health and well-being of the
provider’s recommendation does not liability impact of work-related injury patient/worker and on the safety and
supplant contractual requirements and illness claims. Another commenter well-being of co-workers. When a
regarding return to work (RTW). The (Ex. 25) sought clarification of why a contractor has no work for which that
occupational service provider is termination exam was required. DOE individual is qualified at that time, then
responsible for advising management on notes that termination examinations are the patient/worker must abide by the
the medically appropriate reinstatement not fitness-for-duty; rather they are contractor’s employment policies and
of a worker following an injury or examinations to document the health benefits that are available.
illness based on input from the worker’s status and known exposures of the Appendix A section 8(h)(1) the
personal physician and other sources. employees when they leave occupational medicine provider to place
One commenter (Ex. 15) expressed employment at DOE. an individual under medical restrictions
concern that the requirement for return Several commenters (Ex. 16, 36, 42) when health evaluations indicate the
to work evaluations infringed individual noted that contractors did not have the worker should not perform certain job
privacy rights with respect to vacation ability to require a terminating tasks. Furthermore, the occupational
absence and would result in additional individual to participate in the medicine provider must notify the
costs to the contractor. The commenter evaluations required by supplemental worker and contractor management
proposed that for non-work related proposed rule section 851.210(f)(6)(v), when employee work restrictions are
illness (such as surgery), it was more which specifies that a health evaluation imposed or removed.
appropriate and cost effective to have is required for individuals at the time of Two commenters (Exs. 30, 54) noted
the worker’s personal surgeon make the separation from employment. These that supplemental proposed rule section
determination regarding fitness for commenters suggested that the rule be 851.210(g) requires the SOMD to place
return to duty. Another commenter (Ex. modified to require contractors to only an individual under medical restrictions
48) favored elimination of return to offer a medical evaluation at when health evaluations indicate that
work evaluations after absences due to termination. DOE agrees with the the worker should not perform certain
illnesses or injury for 5 or more days. commenters suggestion and has job tasks. However, the commenters
DOE notes that the occupational modified the language in final rule pointed out that the proposed rule has
medical providers use the written Appendix A section 8(g)(2)(v) to only no requirement for medical removal
recommendations regarding restrictions require contractors to offer individuals, protection (i.e., no loss of pay if
that are provided by private physicians. at the time of separation from transferred to a job which pays less or
However, occupational medicine employment, a general health inability to work due to a work related
providers must conduct return-to-work evaluation to establish a record of problem as is the case with OSHA’s
fitness-for-duty evaluations and make physical condition. Lead standard). The commenters
determinations about whether the Appendix A section 8(h) requires the suggested that such a provision for
employee can safely return to their occupational medicine provider to medical removal protection should be
assigned job tasks in the interest of monitor ill and injured workers to included in the rule, whether required
by an OSHA regulation or not. DOE Appendix A section 8(k) establishes by the SOMD.’’ DOE believes that such
believes that medical removal that the occupational medicine services guidelines put forth by OSHA and CDC
protection is an inappropriate remedy in provider must review and approve the qualify as common industry knowledge
this instance. The primary purpose of medical and behavioral aspects of and that qualified (licensed/registered/
medical removal protection is to reduce employee counseling and health certified) occupational medicine
or eliminate the potential for exposure promotional programs. One commenter providers as required in Appendix A
to toxic materials in workers who (Ex. 48) favored eliminating the section(c) are aware of such guidelines.
display evidence of overexposure to that requirement in proposed rule section Appendix A section 8(k)(5) requires
material. Workers under medical 851.210(h) and replacing it with the that the occupational medicine services
restriction may be protected by the language, ‘‘Occupational medical provider must develop and periodically
Americans with Disability Act, Workers’ services and medical surveillance must review medical emergency response
Compensation Programs, or other be provided to employees as required by procedures included in site emergency
means. applicable OSHA regulations.’’ DOE and disaster preparedness plans. This
Appendix A section 8(i) stipulates believes that limiting the services to provision further stipulates that medical
that occupational medicine provider’s only what is required by OSHA emergency responses must be integrated
physicians and medical staff must, on a regulations places undue constraints on with nearby community emergency and
timely basis, communicate results of the occupation medicine program. The disaster plans.
health evaluations to management and services listed constitute many of the Two commenters (Exs. 5, 16)
to safety and health protection elements of a comprehensive expressed concerns with respect to
specialists in order to facilitate the occupation medicine program. emergency and disaster preparedness
mitigation of worksite hazards. Three Appendix A section 8(k)(1) specifies plans and how they integrate within the
commenters (Exs. 47, 54, 55) sought that contractor-sponsored or contractor- occupational medicine requirements
clarification of the requirement in supported EAPs must be reviewed and under proposed rule section
proposed rule section 851.210(g)(3) for approved by the occupational medicine 851.210(i)(1). One commenter (Ex. 16)
the ‘‘communication of results of health services provider. One commenter (Ex. suggested the language be modified to
trend evaluations to management and 5) suggested that DOE should offer require ‘‘the SOMD to review and
site worker health protection alternatives for the SOMD review, such approve the medical portion of the site
professionals.’’ One of the commenters as review by the medical director of the emergency and disaster preparedness
(Ex. 47) suggested that only ‘‘identified’’ EAP programs, because many plans and procedures.’’ Another
health trends should be included under companies use corporate sponsored commenter (Ex. 5) suggested that
this provision, while other commenters programs that are not reviewed by the contrary to the requirements of
(Exs. 54, 55) suggested the inclusion of SOMD. DOE believes that the proposed rule sections 851.210(i)(1) and
worker health and safety committees occupational medicine provider must (2), in small communities, the SOMD
and worker representatives as recipients review and approve all services offered may review the site emergency and
for the health evaluation trend data. to employees because the occupational disaster preparedness plans, but the
DOE has eliminated the term ‘‘trend’’ medicine provider has overall development, and integration of such
and only requires ‘‘communication of responsibility for ensuring that plans with community plans is done by
results of health evaluations to employees are offered appropriate and the management and operating
management and health protection comprehensive services. emergency management or occupational
specialists’’ in the corresponding final Appendix A section 8(k)(2) specifies health staff, not by the local physician.
rule Appendix A section 8(i). DOE that contractor-sponsored or contractor- With reference to supplemental
further notes that worker safety and supported alcohol and other substance proposed sections 851.210(i)(1) and (2),
health committees and worker abuse rehabilitation programs must be one commenter (Ex. 5) raised the issue
representatives can obtain trend data on reviewed and approved by the that previous DOE guidance on
illness and injury and trend data on occupational medicine services community plan integration specifically
safety from the Office of Environment, provider. referenced mass casualties. However as
Safety and Health’s offices of Appendix A section 8(k)(3) specifies written, the proposed rule did not
Epidemiology and Health Surveillance, that contractor-sponsored or contractor- include any requirement for mass
Performance and Assessment, supported wellness programs must be casualty planning. DOE notes that the
respectively. reviewed and approved by the DOE order on emergency preparedness
Appendix A section 8(j) specifies that occupational medicine services addresses mass casualties. Additionally
the occupational medicine provider provider. DOE did not receive occupational medicine programs are
must include measures to identify and comments on this proposed provision required to be integrated into the
manage the principal preventable causes during the public comment period. Emergency Plans at sites.
of premature morbidity and mortality Additionally, Appendix A section
affecting worker health and 8(k)(4) of the final rule specifies that the 9. Motor Vehicle Safety
productivity. In particular, Appendix A occupational medicine services provider Appendix A section 9 of the final rule
section 8(j)(1) requires the occupational must review the medical aspects of (formerly supplemental notice of
medicine provider to include programs immunization programs, blood-borne proposed rulemaking section 851.206),
to prevent and manage these causes of pathogens programs, and bio-hazardous provides the motor vehicle safety
morbidity when evaluations waste programs to evaluate their program requirements. This section
demonstrate their cost effectiveness. conformance to applicable guidelines. adopts the motor vehicle safety
Additionally, Appendix A section 8(j)(2) One commenter (Ex. 16) recommended provisions in DOE Order 440.1A. These
requires contractors to make available to that proposed rule section 851.210(h)(4) provisions allow continued contractor
the occupational medicine provider be modified to include the language, flexibility in determining the most
appropriate access to information from ‘‘The SOMD must review the medical efficient methods for achieving
health, disability, and other insurance aspects of * * * programs to evaluate compliance and targeting local accident
plans (de-identified as necessary) in their conformance to applicable and injury trends based on local driving
order to facilitate this process. guidelines, as determined appropriate and operating conditions. The motor
vehicle safety requirements of this training for vehicle operators; (4) section would infringe on the employee-
section apply to operation of industrial vehicle maintenance and inspection; (5) employer relationship and go beyond
equipment powered by an electric motor traffic control and signage; (6) speed commercial and regulatory practice.
or an internal combustion engine, limits and other traffic rules; (7) public Again, DOE notes that the motor vehicle
including, fork trucks, tractors, and awareness programs to promote safe provisions of this final rule are taken
platform lift trucks and similar driving; (8) and enforcement provisions. directly from DOE Order 440.1A and
equipment. Appendix A section 9(a) of Two commenters (Ex. 39, 40) have been applicable to contractor
the final rule requires contractors to criticized the corresponding provisions operations for almost ten years. DOE
implement a motor vehicle safety of the supplemental proposed rule, expects that contractors will use their
program to protect the safety and health specifically sections 851.206(c)(1) existing motor vehicle safety
of all drivers and passengers in through (3) on the ground that they enforcement provisions developed in
Government-owned or -leased motor duplicate the training, testing and response to DOE Order 440.1A to
vehicles and powered industrial licensing requirements of local and state comply with the enforcement provisions
equipment (i.e., fork trucks, tractors, government agencies that regulate motor required under Appendix A section
platform lift trucks, and other similar vehicles. DOE disagrees with the 9(c)(8) of the final rule.
specialized equipment powered by an commenters and has retained the
electric motor or an internal combustion requirements in the final rule. 10. Electrical Safety
engine). Several commenters (Exs. 16, 29, 36, Three commenters (Ex. 17, 18, 53)
Two commenters (Exs. 27, 45) 48) objected to the use of the word recommended that DOE add a new rule
asserted that the proposed requirements ‘‘incentive’’ in supplemental proposed section related to electrical safety and
which are in Appendix A section 9 of rule section 851.206(c)(7), which stated worker protection from electrical
the final rule, appear to be a that awareness campaigns and incentive hazards. One of these commenters (Ex.
summarization of existing DOE Orders programs to encourage safe driving must 53) recommended that the proposed
and would likely require extensive be part of the motor vehicle safety Electrical Safety section include NFPA
review and analysis for contractors to program. Their rationale was that the 70E (Standard for Electrical Safety in
come into compliance with the rule word incentive implies monetary
the Workplace). Another (Ex. 29)
requirements. Since motor vehicle reward, and it would be inappropriate
questioned if DOE plans to publish an
requirements in the final rule are the to include this type of requirement in a
electrical safety implementation guide.
same as the requirements in DOE Order regulation that subjects contractors to
The commenter believed that this would
440.1A, DOE believes that contractors civil penalty for violations. DOE
be helpful for understanding what DOE
are already in compliance with DOE disagrees and notes that contractors
considers an ‘‘acceptable approach’’ for
Order 440.1A should require minimal, if have been subject to the enforcement
‘‘development of an integrated set of
any effort to implement the rule (through contract mechanisms) of this
hazard controls.’’ In response to these
requirements. exact requirement through the
comments, DOE added Appendix A
Another commenter (Ex. 48) argued provisions of DOE Order 440.1A for
that the requirements in Appendix A close to ten years. DOE is unaware of section 10 to the final rule, which
section 9 should be deleted because any difficulties associated with either requires contractors to implement a
motor vehicle safety is adequately compliance with or enforcement of this comprehensive electrical safety program
covered by OSHA regulation and state provision. DOE’s intent with the use of that is appropriate for the activities at
laws, including the requirements for the term ‘‘incentives programs’’ as their site. This program must meet the
training and qualification of powered clarified in Appendix A section 9(c)(7) applicable electrical safety codes and
industrial trucks. DOE disagrees with of the final rule is to refer to any standards referenced in section 851.23
the commenter and has retained the program developed by the contractor to of the rule. As requested, the section
provisions for motor vehicle safety. encourage safe driving among its 851.23 includes NFPA 70 and 70E
Another commenter (Ex. 40) workforce. This provision provides among the mandatory electrical safety
contended that the requirement that contractors the latitude to determine the codes and standards. DOE notes its
each contractor implement a motor types of incentives programs they feel intent to publish appropriate guidance
vehicle safety program would be are appropriate and effective. The documents to assist contractors in their
problematic in cases where many provision does not limit the contractor compliance efforts.
contractors share the same space and to or restrict them from the use of 11. Nanotechnology Safety—Reserved
traffic patterns. DOE notes, each monetary incentives.
contractor should coordinate with the Another set of commenters (Exs. 20, The Department has chosen to reserve
other contractors to ensure that there are 36, 39) expressed several concerns about this section since policy and procedures
clear roles, responsibilities and the supplemental proposal, included in for nanotechnology safety are currently
procedures that will ensure the safety section 851.206(c)(8) to require being developed. Once these policies
and health of workers at multi- enforcement provisions to the motor and procedures have been approved, the
contractor workplaces. vehicle safety program. The rule will be amended to include them
Appendix A section 9(b) mandates applicability of the enforcement through a rulemaking consistent with
that the contractor must tailor the motor provisions to DOE sites with multiple the Administrative Procedure Act.
vehicle safety program to the individual on-site entities was of concern to one 12. Workplace Violence Prevention—
DOE site or facility, based on an commenter (Ex. 39). A second Reserved
analysis of the needs of that particular commenter (Ex. 20) questioned how the
site or facility. Appendix A sections enforcement provisions would be The Department has chosen to reserve
9(c)(1) through (8), specify the different implemented (i.e., whether the DOE this section since the policy and
elements that must be addressed by the police, a Federal magistrate, or the procedures for workplace violence
contractor’s motor vehicle safety contractor’s staff would be authorized to prevention are currently being
program. Specifically, these elements enforce the program provisions). A third developed. Once these policies and
include: (1) Vehicle licensing; (2) use of commenter (Ex. 36) contended that the procedures have been approved, the
seat belts and other safety devices; (3) enforcement provisions in the proposed rule will be amended to include them
through a rulemaking consistent with enforcement process. Appendix B weakness in the contractor’s worker
the Administrative Procedures Act. establishes that necessary framework for safety and health program. One
the worker safety and health commenter (Ex. 29) was concerned
Appendix B—General Statement of
enforcement program. since DOE facility representatives are
Enforcement Policy The policy is intended to achieve the integrated into site operations and
As a guidance document for enforcing dual purposes of promoting proactive participate in collaborative assessments.
this rule, the Department has issued a behavior on the part of DOE contractors This commenter argued that, as a result,
general statement of enforcement policy to improve worker safety and health DOE may learn of violations at the same
as Appendix B. The policy sets forth the performance and deterring contractors time or before the contractor. The
general framework which DOE will from violating the proposed regulations. commenter felt that DOE discovery in
follow to ensure compliance with the The policy will encourage DOE such cases should not be held against
regulations and to issue enforcement contractors to self-identify, report and the contractor when determining
actions and exercise civil penalty correct worker safety and health mitigation. As noted in the final rule,
authority. The policy is not binding and noncompliances and will provide Appendix B section IX(b)(9)(a)(1) refers
does not create any legally enforceable adjustment factors to escalate or to violations identified by a DOE
requirements pursuant to this part. It mitigate civil penalties on the basis of independent assessment or other formal
only provides guidance as to how DOE the nature of the violation and the program efforts.
generally expects to seek compliance behavior of the contractor. Several Another commenter (Ex. 21)
with the proposed regulations and to commenters (Exs. 5, 11, 16, 28, 29, 31, questioned use of the term awareness in
deal with any violations of the proposed 35, 36, 37, 43, 45, 47, 49, 51) took issue Appendix B section IX(2)(f), and argued
regulations. One commenter (Ex. 47) with the treatment of DOE Voluntary that awareness would be difficult to
pointed out that the supplemental Protection Program (DOE VPP) sites in prove on a large worksite, with multiple
proposal made references to reasonable that special provisions were not made contractors and informal resolution of
quality assurance measures and also for their exemplary worker safety and noncompliances on the spot, without
suggested that contractor activities health programs, such as exemption documentation. Generally, contractors
before the effective date of the rule from programmed inspections and should be aware of the hazards in their
should not be enforceable. DOE notes special mitigating factors during covered workplace. Only in rare cases,
that the statute does not allow a enforcement. DOE disagrees and would DOE accept that the contractor
contactor to be penalized under both believes that the performance of DOE was unaware of hazards. DOE will
sections (234A and 234C) of the law for VPP sites under this rule will validate consider the contactor’s self-assessment
the same violation. Also, the statute the strength of their programs and that program and the extent of management
does not provide for grandfathering they will stand out as examples of involvement in making such
activities of the contractor before the excellent worker safety and health determinations.
effective date of the rule. Therefore, programs within DOE. DOE VPP sites Several commenters (Exs. 15, 29, 31)
contractors must be in compliance on will be subject to all of the provisions took exception to applying enforcement
the effective date of the rule. of this rule. In fact, DOE VPP sites provisions of the rule to subcontractors
Several commenters (Exs. 13, 29, 43, should have the best worker safety and and suppliers, citing privity of contract,
58) suggested that terms and definitions health programs and be in compliance additional management burden,
be expanded or clarified in this section with the worker safety and health financial implications, and other
of the final rule. DOE feels that most of requirements of this rule. DOE would disincentives for working with DOE.
these terms are commonly understood not expect that these sites would need Contract privity is not an issue because
and need not be defined in the rule. The to report many Noncompliance Tracking DOE, through the Atomic Energy Act,
rule incorporates commonly used and System (NTS)-reportable violations. The has statutory authority to regulate health
understood terms from both the nuclear Office of Price-Anderson Enforcement, and safety matters of workers on the
safety enforcement program and worker however, will respond as necessary to DOE sites covered under this rule. In
safety and health programs in both DOE significant violations if and when they fact, since DOE indemnifies
and the private sector. DOE clarifies in do occur and develop appropriate subcontractors and suppliers against a
final rule section 851.3(b) that terms programmed inspection strategies. nuclear incident under the statute, it
undefined in this part that are defined One commenter (Ex. 39) took does not receive further privity in any
in the Atomic Energy Act of 1954 must exception with the statement that event. DOE will exercise this authority
have the same meaning as under that contractors will almost always discover through this final rule and need not
Act. DOE agrees that all of the different noncompliances before DOE. The have a direct contractual relationship
terms used to refer to violations and commenter noted that DOE with subcontractors. This will not
noncompliances in the supplemental representatives are often co-located alleviate contractors of their
proposal should be deleted. onsite with contractors and could responsibility to flow contractual
Three commenters (Exs. 28, 45, 51) identify violations before the contractor. requirements down to their
supported the position that Appendix B DOE disagrees and maintains that subcontractors. The statute mandates
should be deleted from the rule and contractors are in the best position to indemnification and the statutory
issued as separate guidance. DOE identify noncompliances. Since requirements apply without respect to
disagrees. The rule establishes the contractors are required to identify and any particular contract. Contractors
worker safety and health requirements evaluate hazards in the workplace, and remain contractually responsible for the
for contractors. If contractors fully have managers, supervisors and activities of their subcontractors. DOE
comply with requirements of this rule, employees operating in the workplace also plans to issue an enforcement
then there will be no enforcement on a routine basis, they should be the guidance supplement (EGS) similar to
actions taken against contractors. If, first to identify noncompliances. the Occupational Safety and Health
however, a contractor does not comply, Contractors should not rely on DOE to Administration (OSHA)’s multi-
it is necessary to delineate enforcement identify noncompliances. If DOE finds employer worksite policy, which
policies, as is done in Appendix B, so noncompliances rather than the explains how enforcement will be
that contractors can understand the contractor, then this may indicate a viewed with respect to multiple
contractors at a particular covered discretion when a contractor self-reports would be considered severity level II.
workplace. a violation, another commenter (Ex. 47) As a result, the supplemental proposal
Appendix B incorporates the basic recommended changing ‘‘may’’ to language is retained in the final rule.
outlines of DOE’s well-established ‘‘shall.’’ DOE disagrees in that by One commenter (Ex. 15) insisted that
nuclear safety enforcement program in definition, discretion cannot be DOE apply the maximum civil penalty
10 CFR Part 820. One commenter (Ex. exercised without restraint by DOE if only to cases of willfulness, death,
37) is concerned that DOE will not DOE is constrained to act in only one serious injury, patterns of systemic
consider effective OSHA enforcement way. violations, flagrant violations or
policies and procedures, such as their The enforcement policy uses several repeated poor performance and apply
letters of interpretation, rulings of law, enforcement terms and includes the OSHA penalty structure to
approach to multi-employer sites and mitigation factors similar to those in 10 violations classified as serious, other-
the General Duty Clause. The Office of CFR part 820. The severity levels and than-serious, and de minimis. DOE
Price-Anderson Enforcement has adjustment factors in the policy disagrees, the penalty structure was
maintained copies of all enforcement incorporate concepts OSHA uses in its established by Public Law. The Director
letters, enforcement actions, program enforcement program including whether may use discretion to reach final
review reports and other data related to a violation is serious, other-than- penalty amounts. Appendix B section
nuclear safety enforcement on its web serious, willful, repeat, or de minimis. IX(b)(3) addresses the adjustment factors
site, which is available to participants in Specifically, the policy as clarified in that the Director will consider when
the Price-Anderson Amendments Act Appendix B section VI of the final rule arriving at a penalty amount.
(PAAA) program. Over the past 10 years provides guidance on the treatment of Two commenters (Exs. 45, 51) also
the program has been administered as violations based on severity levels. suggested adding definitions to
required by the Price-Anderson Section VI(b)(1) establishes that a supplemental proposed section 851.3
Amendments Act. Legal precedents severity level I violation is a serious for ‘‘severity levels I and II.’’ DOE
contained therein will be relevant. In a violation, which would involve the disagrees, however, since the terms are
similar manner, on the effective date of potential that death or serious physical adequately defined in this appendix.
this rule, DOE will begin to post all harm could result from a condition in a Two other commenters (Exs. 38, 57)
relevant enforcement letters, workplace, or from one or more requested that DOE more clearly
enforcement actions, program review practices, means, methods, operations, delineate between severity level II and
reports, and other data related to worker or processes used in connection with a de minimis violations in the rule
safety and health. Interpretations to the workplace. A severity level I violation is arguing that under the severity
OSHA standards issued by OSHA will subject to a base civil penalty of up to classifications in the supplemental
be considered valid unless directed 100% of the maximum base civil proposed rule, a single improperly
otherwise by DOE General Counsel. In penalty or $70,000. placed ladder could be consider a
addition to relying on DOE’s proven Section VI(b)(2) establishes that a severity level II hazard subject to a
nuclear safety enforcement principles severity level II violation is an other- $35,000 penalty. DOE disagrees that a
and operating procedures, the Office of than-serious violation, which would change is needed. The commenters are
Price-Anderson Enforcement will involve a potential that the most serious correct that an improperly positioned
incorporate relevant OSHA enforcement injury or illness that might result from ladder could be considered a severity
procedures into an Office of Price- a hazardous condition cannot level II hazard if the condition had a
Anderson Enforcement Worker Safety reasonably be predicted to cause death direct relationship to employee safety
and Health Enforcement Manual. or serious physical harm to exposed and health but could not reasonably be
Another commenter (Ex. 59) proposed employees, but does have a direct predicted to cause death or serious
that a DOE-approved worker safety and relationship to their safety and health. A physical harm. If, on the other hand, the
health program constitute an accepted severity level II violation is subject to a specific condition had no direct or
interpretation of the rule. DOE holds base civil penalty up to 50% of the immediate relationship to safety or
that it does not represent an maximum base civil penalty or $35,000. health, the hazard would be considered
interpretation of the rule. As established Under section VI(b)(3) a de minimis de minimis. DOE also points out here
in the final rule, a binding interpretive violation is defined as a violation that that, under certain circumstances, an
ruling can only be issued through the has no direct or immediate relationship improperly positioned or secured ladder
formal process outlined in section to safety or health and thus, will not be could easily present a significant fall
851.7. In addition, an approved program the subject of formal enforcement action hazard which could be considered a
demonstrates an acceptable approach through the issuance of a Notice of severity level I hazard. Since the
toward implementing the requirements Violation. probability that an injury or illness will
of the rule. Several commenters took issue with occur has a bearing on the proposed
The policy provides guidance on how DOE’s description of violation severity penalty, the definitions of severity level
enforcement conferences will be in the corresponding sections of the I, II, or de minimis violations take
conducted, how enforcement actions supplemental proposed rule. For likelihood or probability into account.
will be conducted and when instance, four commenters (Exs. 15, 29, In determining the severity level of a
enforcement letters will be issued. One 38, 57) favored using OSHA’s definition violation, the Office of Price-Anderson
commenter (Ex. 31) suggested that for severity level I since probability in Enforcement will consider the
specific criteria be established for this rule was not precisely defined. DOE circumstances affecting each
issuing or not issuing enforcement disagrees. The probability language in condition—employee exposure,
letters and that enforcement letters the definition of severity level II (i.e., ‘‘a frequency of exposure, proximity to the
should not be issued when a contractor hazardous condition that cannot hazard, level of worker experience, etc.
has taken appropriate abatement action. reasonably be predicted to cause death With respect to fire protection, one
DOE believes that such detailed criteria or serious physical harm’’) clearly commenter (Ex. 61) stated that due to
would unduly restrict the flexibility encompasses hazards that present only legacy issues there will be numerous de
needed in the enforcement program. a remote possibility of death or serious minimis violations of National Fire
With respect to the Director’s exercising physical harm, thus, such hazards Protection Association (NFPA)
standards. The commenters questioned adjustment factor in determining under the Conditional Payment of Fee
whether DOE intends for contractors to appropriate penalty amounts. clause.
document and correct these de minimis Two commenter (Exs. 36, 47) took Regarding the factor of ability of DOE
violations and also stated that most of issues with Appendix A section VI(g) contractors to pay civil penalties, the
the code deviations would address which provided special considerations policy provides in Appendix B section
property protection rather than worker for facility-related legacy hazards in IX(b)(2) that it is not DOE’s intention
protection. In response, DOE notes that determining severity levels. One that the economic impact of a civil
the list of NFPA standards in the final commenter (Ex. 47) stated that this penalty would put a DOE contractor out
rule corresponds to those already listed section of the supplemental proposed of business. Several commenters (Exs.
in DOE Order 440.1A and are rule did not address personnel-related 29, 42, 47) contend that since DOE
significantly reduced from that included legacy issues such as asbestosis cases, controls funding, some accommodation
in the supplemental proposal. Since hearing loss due to chronic noise would be appropriate in circumstances
these NFPA standards have been in exposures, etc. The other commenter where the violation existed because
place for many years under the DOE (Ex. 36) wondered whether facility- funding was not provided. They go on
Order, DOE does not expect that there related and legacy hazards would be to state that contactors should not be
will be numerous violations. In considered in determining the severity liable if they have notified the
addition, DOE believes that deviations of the hazard or would be considered as contracting officer or COR that funds are
from the NFPA standards that would a mitigating factor when determining needed to correct legacy hazards and
qualify as de minimis violations would penalty amounts. DOE has considered infrastructure issues (Exs. 42, 47). The
likely be addressed through the both of these comments as well as other Director will consider all relevant
equivalency process built into the NFPA comments received related to legacy factors in determining an appropriate
standards. hazards and believes that flexibility for enforcement method. However, the rule
In addition to the clear definitions for legacy hazards is best addressed through makes no provision for violations that
severity levels I and II and de minimis worker safety and health program have existed and have not been abated
violations described in Appendix B requirements rather than through for lack of funding. It is the
section VI of the final rule, the adjustments to the severity level of a responsibility of contractors to be in
supplemental proposed rule Appendix violation. Accordingly, DOE has compliance on the effective date of this
A sections VI(d) through (g) described removed this paragraph from Appendix rule.
certain other factors that would be taken B section VI of the final rule. Under the
The policy also provides that when a
into account in determining the severity final rule, facility-closure issues must be
contractor asserts that it cannot pay the
of a violation. Several commenters took addressed under the contractor’s safety
proposed penalty, DOE would evaluate
issue with the consideration of these and health program (final rule section
the relationship of affiliated entities to
other factors arguing that the factors had 851.21(b)). DOE’s intent is that this
the contractor such as parent
no relationship to the actual severity of provision address facility-closure issues
corporations. One commenter (Ex. 39)
the hazard. For instance, two impacting worker safety and health.
commenters (Exs. 29, 36) suggested that Appendix B section IX of the final stated that such an approach is ‘‘in
severity levels be defined based on the rule clarifies that DOE may invoke the direct contravention of state laws that
extent of potential harm that could provisions for reducing contract fees in establish C-corporations, S-corporations
result from the violation (as discussed cases: (1) Involving especially egregious and limited liability companies (LLCs),
in supplemental proposed Appendix A violations; (2) that indicate a general as well as other legal entities.’’ DOE
sections VI(b) and (c)), not on the failure to perform under the contract appreciates these concerns.
culpability of the contractor (as with respect to worker safety and Nevertheless, to ensure that responsible
discussed in supplemental proposed health; or (3) where the DOE line parties such as an affiliate are held
Appendix A sections VI(d) and (e)). management believes a violation responsible for the safety and health of
DOE agrees and has made appropriate requires swift enforcement and workers, and to maintain consistency
changes in the final rule. Culpability corrective action. Where DOE uses with the duties and responsibilities set
will be considered in the assessment of environmental closure-type contracts, forth in 10 CFR part 820, DOE has
adjustment factors when determining an some of short duration and/or where fee determined that it is necessary to
appropriate level of penalty. payments are scheduled only after continue to reference affiliated entities.
Accordingly, this paragraph is now significant accomplishment of work, Based on the adjustment factors
included as an adjustment factor under DOE would initially pursue the use of relating to a noncompliance as
Appendix B section IX(b)(3)(e) of the the fee reduction provision. Such described in Appendix B section
final rule. violations would call into question a IX(b)(3), DOE could mitigate a civil
Two other commenters (Exs. 29, 36) contractor’s commitment and ability to penalty from the statutory maximum of
pointed out that, as defined in the achieve the fundamental obligation of $70,000 per violation per day.
supplemental proposal, a severity level providing safe and healthy workplaces Mitigation factors used to reduce a civil
II violation could be increased to for workers because of factors such as penalty include whether a DOE
severity level I if a contractor failed to willfulness, repeated violations, death, contractor promptly identified and
report a violation. These commenters serious injury, patterns of violations, reported a violation and took effective
argued that this potential increase in flagrant DOE-identified violations, corrective actions. Factors used to
severity level would make NTS repeated poor performance in areas of increase penalties (but not over the
reporting mandatory. DOE agrees. concern, or serious breakdown in statutory maximum of $70,000) would
Accordingly, this provision of the management controls. Because such include whether a violation is repeated
supplemental proposal has been moved violations indicate a general failure to or involves willfulness, death, serious
to Appendix B section IX(b)(3)(g) in the perform under the contract with respect physical harm, patterns of systemic
final rule and is no longer included as to worker safety and health where both violations, flagrant DOE-identified
a factor in determining severity. As in remedies are available and DOE elects to violations, repeated poor performance
the nuclear safety enforcement program, use a reduction in fee, DOE would in an area of concern, or serious
self-reporting is included as an expect to reduce fees substantially breakdowns in management controls.
One commenter (Ex. 13) suggested enforcement immunity for contractors indicates that DOE will evaluate the
that the adjustment/mitigating factors who self-identify violations. Contractors relationship between a contractor and
should include percentages as in 10 CFR are responsible for providing a affiliated entities in determining
part 820. In response, DOE notes that in workplace free from recognized hazards, whether a contractor is able to pay a
addition to establishing civil penalty not just identifying hazards. Hazard proposed penalty. DOE will generally
percentages based on the severity of the identification is fundamental to the consider the scope and magnitude of the
violation, 10 CFR part 820 establishes worker safety and health program. contract and associated fees and/or
adjustment factor percentages for two Contractors are also responsible for profit, among other factors. It is not the
mitigating factors: (1) Reduction of up to evaluating hazards, implementing intent of DOE to put a contractor out of
50% of civil penalty for self- interim protective measures and abating business by assessing large penalties. In
identification and -reporting and (2) noncompliances. If contractors were rare circumstances, when the nature of
increases or decreases of up to 50% of granted immunity for identifying a contractor’s violations and conduct are
civil penalty for failure to take hazards, then inappropriate or especially egregious, then contract
corrective action or for implementation inadequate contractor actions that termination may be more appropriate. In
of prompt corrective action, normally follow hazard identification determining whether to refer a violation
respectively. DOE has included similar would not be citable by the Office of to the appropriate DOE official
percentage adjustments based on Price-Anderson Enforcement. The responsible for administering reductions
severity of hazards and based on self- procedure retained in the final rule is in fee pursuant to the Conditional
identification and -reporting in both the consistent with enforcement actions in Payment of Fee clause, the Director will
supplemental proposal and in the final Appendix A of 10 CFR part 820. generally focus on the factors stated
rule at Appendix B section IX(b)(4). Two commenters (Exs. 29, 36) argued above, such as willfulness, repeated
DOE has not included a specific that the rule should provide for personal violations, death, serious injury,
adjustment percentage based on the errors and employee willful misconduct patterns of systemic violations, flagrant
promptness of corrective action for two beyond the control of the contractor, DOE-identified violations, repeated poor
reasons: (1) DOE already ties corrective including a responsibility for employees performance in an area of concern, or
action into the adjustment factor for to comply (similar to section 5(b) of the serious breakdown in management
self-identification and -reporting in Occupational Safety and Health Act) controls. In cases where DOE may elect
section IX(b)(4) which states, ‘‘ No and should mirror the ‘‘unpreventable between civil penalties and a contract
consideration will be given to a employee misconduct’’ defense penalty, these kinds of factors may also
reduction in penalty * * * if the recognized by OSHA. DOE agrees and lead DOE to consider a reduction in fee
immediate actions necessary to restore added section 851.12(b) to the final rule if they raise doubts about a contractor’s
compliance with the worker safety and to prohibit workers from taking actions overall performance or ability to
health requirements are not taken;’’ and inconsistent with the rule. DOE will perform its contract with proper regard
(2) DOE is limited under section 234 C develop enforcement guidance for the for worker safety and health.
of the AEA to imposing a maximum rule that will include provisions similar
to OSHA’s unpreventable employee One commenter (Ex. 25) favored a
civil penalty of $70,000 per violation, penalty structure more in line with
per day. In other words, DOE is misconduct defense outlined in OSHA’s
Field Inspection Reference Manual. OSHA’s penalty structure. In
prohibited under the statute from establishing the base civil penalties for
Another commenter (Ex. 29) stated that
applying a 50% increase to the base the types of violations in this policy,
an isolated case of a willful violation by
civil penalty of $70,000. DOE set the starting base amounts at
an employee may be outside the control
Several commenters (Exs. 31, 37, 45, of the contractor should be eliminated levels higher than the average OSHA
51) suggested mitigating penalties based from enforcement discretion, and penalty for several reasons. DOE’s
on a contractor’s good faith, timely should not be considered as grounds for activities are conducted by large,
corrective action, and general inspection classifying the violation as a ‘‘willful’’ experienced management and operating
history, and providing a comprehensive violation. DOE agrees and intends for contractors and their subcontractors.
list of positive mitigating factors in the policy regarding willful violations to Through the contractual relationships
Appendix B. DOE discusses adjustment address a willful violation on the part of that DOE has with these entities, DOE
factors (including positive mitigating contractor management. is in constant dialogue concerning the
factors) in Appendix B, section IX(b)(3) As noted previously, when both management and operation of DOE’s
of the final rule. This discussion remedies are available, DOE may sites and the performance of its
touches upon many of the items listed consider a reduction in contract fees if governmental missions. DOE has the
by the commenters, however, DOE a violation is especially egregious or authority to require these contractors to
disagrees that a specific list of positive indicates a general failure to perform develop their own worker safety and
mitigating factors should be included in under the contract with respect to health programs for DOE approval.
the rule. DOE believes that such a list worker safety and health. One Moreover, DOE may unilaterally direct
would be limiting and could actually commenter (Ex. 29) inquired as to contractors to include various
stifle contractor innovation in whether mitigating factors would be provisions in their programs. Thus, the
implementing their safety and health applied to contract penalties as they Director is in a position to enforce
program. Mitigating factors, in different might be applied to civil penalties. In against these programs and can provide
combinations, in different response, DOE notes that except where incentives for proactive compliance.
circumstances, may affect the penalty a violation is considered a continuing The policy strongly encourages self-
amount in different ways. Simply violation, and each day is considered a identification of violations, self-
stated, DOE’s intent in applying positive separate day for the purposes of reporting, tracking systems, and
mitigating factors is to recognize computing the penalty, the maximum corrective action programs. Moreover,
proactive contractor safety and health contract penalty for each violation will DOE also has the authority and
measures when considering appropriate not exceed $70,000. DOE further notes flexibility to coordinate and choose
enforcement actions. The same that adjustment factors also apply to either a civil penalty or fee reduction
commenter went on to support contract penalties. Section IX.2(e) remedy based on the enforcement policy
and the fee reduction contract clause. noncompliances will be reported. The Reporting System (CAIRS). While future
The proposed enforcement structure of EGS will also provide guidance on the enforcement guidance supplements
this rule fits the DOE complex better reporting of noncompliances involving (EGSs) may identify what reportable
than would a generic system as found in repeat, willful, programmatic, etc. information may be common to various
OSHA’s enforcement programs. issues. reporting systems, it is generally left to
Finally, as a tool for implementing the The NTS reporting scheme is similar the contractor to develop efficiencies in
enforcement policy, Appendix B section to that already in use for nuclear safety its own operating environment. DOE
IX(b)(5) clarifies that DOE intends to enforcement. One commenter (Ex. 29 will continue to look at economies of
provide a computerized database system queried as to whether contractors would scale between its different reporting
to allow contractors to voluntarily eventually move toward trending systems. Final rule section 851.26 now
report worker safety and health deficiencies and programmatic requires reporting in accordance with
noncompliances. DOE will enhance its deficiencies. Enforcement of the DOE Manual 231.1–1A, Environment,
NTS, currently used for reporting of requirements of this rule will be Safety and Health Reporting Manual
noncompliances of the DOE nuclear conducted from the Office of Price-
(DOE M 231.1–1A), May 9, 2005.
safety requirements, to permit its use for Anderson Enforcement. DOE notes that
Section 851.20(a) establishes
reporting noncompliances with this a well-developed contractor worker
requirements for worker involvement in
rule. DOE will develop appropriate safety and health program should
reporting thresholds unique to worker involve trending and include an the safety and health program and
safety and health to assure that the evaluation to determine whether 851.20(b) establishes worker rights to
system will focus on issues with the identified noncompliances are of a access certain information, including
greatest potential consequences for programmatic nature. This type of limited access to OSHA Form 300 and
worker safety and health. evaluation would impact the 301 information. Another commenter
Numerous commenters believed that contractor’s response to identified (Ex. 29) questioned what was meant in
contractor reporting into NTS is the noncompliances. supplemental proposed Appendix A
most important issue to resolve, and Several commenters (Exs. 10, 13, 16, section IX(b)(5)(c) by requiring that DOE
that details about reporting thresholds, 29, 31, 37, 42, 49) took issue with have ‘‘access’’ to the contractor’s
recording noncompliances, integration reporting noncompliances into NTS and tracking system. DOE’s intent with this
of reporting with existing DOE reporting argued that this reporting would result statement is that if requested,
requirements, among other issues, will in increased operating and management contractors would provide DOE
have a bearing on contractor operations costs since these represent new information/data on noncompliances
and their cost of doing business. All requirements. These commenters argued tracked locally.
commenters (Exs. 5, 9, 15, 25, 28, 29, 30, that DOE should coordinate NTS with With respect to contractors relying on
31, 35, 38, 39, 42, 45, 47, 49, 51, 57) the Occurrence Reporting and direction given by DOE, and this
stated that doing so places contractors Processing System (ORPS) to eliminate reliance contributing to a violation, one
in a position of making ‘‘an admission duplication of reporting. One of the commenter (Ex. 47) stated that
against interest,’’ that DOE should commenters (Ex. 37) recommended
supplemental proposed Appendix A
provide immunity for self-reported eliminating contractor reporting
section IX(b)(8) should indicate that
violations, and that reporting would altogether and suggested that DOE
DOE ‘‘shall’’ (instead of ‘‘may’’) refrain
have a negative economic impact. DOE should require local DOE reporting of
disagrees and views contractor reporting violations that result in actual from issuing a notice of violation, or
of noncompliances as responsible and endangerment to contractor employees. ‘‘shall’’ (instead of ‘‘may’’) mitigate,
in the best interest of the contractor, DOE disagrees with the commenter and either partially or entirely, any proposed
since up to 50 percent mitigation of the believes that contractors are in the best civil penalty when DOE has a
base penalty may be granted for self- position to identify noncompliances in contributing role according to
reporting. While contractors should their covered workplaces, not local DOE provisions in the rule. DOE disagrees.
track all their noncompliances locally, officials. In addition, local DOE The word may, instead of shall, gives
only a subset would be reported into representatives are not part of the the Director the discretion that is
NTS based on reasonable reporting enforcement program. Contractors needed. Whether or not a notice of
thresholds that will be established in a operating under the requirements of violation is issued depends on the
future enforcement guidance DOE Order 440.1A are responsible for nature of the direction given by DOE to
supplement (EGS). DOE anticipates that identifying, analyzing and abating the contractor, not simply that direction
the NTS reporting thresholds will be noncompliances and reporting certain was given by DOE, and the extent to
established such that only severity level noncompliances to ORPS and which a contractor relies on the
I and certain severity level II Computerized Accident/Incident direction from DOE.
LIST OF COMMENTERS
Exhibit No. Company/organization
1 ........................ Robert Burger, CEM.

2 ........................ Richard Lewis.
3 ........................ Beverly Brookshire.
4 ........................ Robert P. Sierzputoowski.
5 ........................ Waste Isolation Pilot Plant.

6 ........................ Bryan Bowser.
7 ........................ Argonne Fire Department.
8 ........................ Jane Lataille.
9 ........................ Honeywell Federal Manufacturing & Technologies.
10 ...................... Glenn Bell.
11 ...................... David M. Smith.
LIST OF COMMENTERS—Continued
Exhibit No. Company/organization
12 ...................... Geoffrey Gorsuch.

13 ...................... CH2M Hill Corporation.
14 ...................... Peter Washburn.
15 ...................... University of California—Los Alamos National Laboratory; Lawrence Berkeley National Laboratory; Lawrence Livermore Na-
tional Laboratory.
16 ...................... Westinghouse Savannah River Company.
17 ...................... R&D Electrical Safety Meeting and Workshop Attendees.
18 ...................... R&D Electrical Safety Meeting and Workshop-Group #2.
19 ...................... Duke Cogema Stone & Webster, LLC.
20 ...................... BWXT Pantex.
21 ...................... S & V Wallace.
22 ...................... National Fire Protection Association (NFPA).
23 ...................... Gai Oglesbee.
24 ...................... International Code Council.
25 ...................... Princeton Plasma Physics laboratory.
26 ...................... Sandia National Laboratory.
27 ...................... Jefferson Laboratory.
28 ...................... Fluor Fernald, Incorporated.
29 ...................... Brookhaven Science Associates.
30 ...................... Paper, Allied Industrial Chemical & Energy Workers Union (PACE).
31 ...................... Bechtel Hanford.
32 ...................... Charles R. Briggs.
33 ...................... Universities Research Association, Inc.
34 ...................... University of Chicago—Argonne National Laboratory.
35 ...................... CH2M Hill Hanford Group.
36 ...................... Pacific Northwest National Laboratory—Battelle Memorial Institute.
37 ...................... Honeywell International, Inc.
38 ...................... Stanford Linear Accelerator Center.
39 ...................... Bechtel Jacobs Company, LLC.
40 ...................... Building and Construction Trades Department, AFL–CIO.
41 ...................... James Seward, MD.
42 ...................... UT-Battelle, LLC.
43 ...................... Voluntary Protection Program Participant’s Association (VPPPA).
44 ...................... Senators Jim Bunning & Edward M. Kennedy.
45 ...................... Fluor Corporation.
46 ...................... BWXT Technologies, Inc.
47 ...................... Idaho National Laboratory.
48 ...................... Bechtel National, Inc. Hanford Waste Treatment and Immobilization Plant.
49 ...................... BWXT–Y12.
50 ...................... Edward Jacobson.
51 ...................... Fluor.
52 ...................... Chris Blankner.
53 ...................... Randall Unger.
54 ...................... The International Chemical Workers Union Council of the United Food and Commercial Workers Union.
55 ...................... Atomic Trades and Labor Council.
56 ...................... American Conference of Governmental Industrial Hygienists (ACGIH).
57 ...................... DOE Contractor Attorneys’ Association, Inc.
58 ...................... Bechtel Nevada Corporation.
59 ...................... Donald Stedem, James Dotts, Scott Wood, Bo Kim, Graham Giles, Barbara Yoerg, Robert Griffith, Allen Herrbach, Roger
Goldie, Roger Smith, Joseph Cohen.
60 ...................... Ted Strickland, U.S. Representative.
61 ...................... David Mowrer.
62 ...................... Government Accountability Project.
V. Procedural Requirements Management and Budget, which has provide a clear legal standard for
completed its review. affected conduct rather than a general
A. Review Under Executive Order 12866
standard, and promote simplification
B. Review Under Executive Order 12988
Today’s regulatory action has been and burden reduction. Section 3(b)
determined to be a ‘‘significant With respect to the review of existing requires Federal agencies to make every
regulatory action’’ under Executive regulations and the promulgation of reasonable effort to ensure that a
Order 12866, ‘‘Regulatory Planning and new regulations, section 3(a) of regulation, among other things: clearly
Review’’ (58 FR 51735, October 4, 1993), Executive Order 12988, ‘‘Civil Justice specifies the preemptive effect, if any,
as amended by Executive Order 13258 Reform’’ (61 FR 4779, February 7, 1996) adequately defines key terms, and
(67 FR 9385, February 26, 2002). imposes on Federal agencies the general addresses other important issues
Accordingly, DOE submitted this final duty to adhere to the following affecting the clarity and general
rule to the Office of Information and requirements: eliminate drafting errors draftsmanship under guidelines issued
Regulatory Affairs of the Office of and needless ambiguity, write by the Attorney General. Section 3(c) of
regulations to minimize litigation, Executive Order 12988 requires
Executive agencies to review regulations health at DOE sites. The contractors the procedures implementing that Act, 5
in light of applicable standards in who manage and operate DOE facilities CFR 1320.1 et seq.
section 3(a) and section 3(b) to are principally responsible for
G. Review Under the National
determine whether they are met or it is implementing the rule requirements.
Environmental Policy Act
unreasonable to meet one or more of DOE considered whether these
them. DOE has completed the required contractors are ‘‘small businesses,’’ as DOE currently implements its broad
review and determined that, to the that term is defined in the Regulatory authority to regulate worker safety and
extent permitted by law, this final rule Flexibility Act’s (5 U.S.C. 601(3)). The health through internal DOE directives
meets the relevant standards of Regulatory Flexibility Act’s definition incorporated into contracts to manage
Executive Order 12988. incorporates the definition of ‘‘small and operate DOE facilities, contract
C. Review Under Executive Order 13132 business concern’’ in the Small Business clauses and DOE regulations. This rule
Act, which the Small Business implements the statutory mandate to
Executive Order 13132 (64 FR 43255, Administration (SBA) has developed promulgate worker safety and health
August 10, 1999), imposes certain through size standards in 13 CFR part regulations for DOE facilities that
requirements on agencies formulating 121. The DOE contractors subject to this provide a level of protection for workers
and implementing policies or rule exceed the SBA’s size standards for at DOE facilities that is substantially
regulations that preempt State law or small businesses. In addition, DOE equivalent to the level of protection
that have federalism implications. expects that any potential economic currently provided to such workers and
Agencies are required to examine the impact of this rule on small businesses to provide procedures to ensure
constitutional and statutory authority would be minimal because DOE sites compliance with the rule. DOE
supporting any action that would limit perform work under contracts to DOE or anticipates that the contractor’s work
the policymaking discretion of the the prime contractor at the site. DOE and safety programs required by this
States and carefully assess the necessity contractors are reimbursed through their regulation is based on existing programs
for such actions. contracts with DOE for the costs of and that this rule generally does not
Today’s regulatory action has been complying with DOE safety and health require the development of a new
determined not to be a ‘‘policy that has program requirements. They would not, program. DOE has therefore concluded
federalism implications,’’ that is, it does therefore, be adversely impacted by the that promulgation of these regulations
not have substantial direct effects on the requirements in this rule. For these falls into the class of actions that does
states, on the relationship between the reasons, DOE certifies that today’s rule not individually or cumulatively have a
national government and the states, nor does not have a significant economic significant impact on the human
on the distribution of power and impact on a substantial number of small environment as set forth in the DOE
responsibility among the various levels entities, and therefore, no regulatory regulations implementing the National
of government under Executive Order flexibility analysis has been prepared. Environmental Policy Act of 1969 (42
13132 (64 FR 43255, August 10, 1999). See 68 FR 7990 at III.1. and III.1.c. U.S.C. 4321 et seq.). Specifically, the
Accordingly, no ‘‘federalism summary (February 19, 2003). rule is covered under the categorical
impact statement’’ was prepared or exclusion in paragraph A6 of Appendix
subjected to review under the Executive F. Review Under the Paperwork
Reduction Act A to Subpart D, 10 CFR Part 1021,
Order by the Director of the Office of which applies to the establishment of
Management and Budget. procedural rulemakings. Accordingly,
The information collection provisions
D. Review Under Executive Order 13175 of this rule are not substantially neither an environmental assessment
Under Executive Order 13175 (65 FR different from those contained in DOE nor an environmental impact statement
67249, November 6, 2000) on contracts with DOE prime contractors is required.
‘‘Consultation and Coordination with covered by this rule and were H. Review Under the Unfunded
Indian Tribal Governments,’’ DOE may previously approved by the Office of Mandates Reform Act
not issue a discretionary rule that has Management and Budget (OMB) and
‘‘tribal implications’’ and imposes assigned OMB Control No. 1910–5103. Title II of the Unfunded Mandates
substantial direct compliance costs on That approval covered submission of a Reform Act of 1995 (Pub. L. 104–4)
Indian tribal governments. DOE has description of an integrated safety requires each Federal agency to prepare
determined that this final rule does not management system required by the a written assessment of the effects of
have such effects and concluded that Integration of Environment, Health and any Federal mandate in a proposed or
Executive Order 13175 does not apply Safety into Work Planning and final agency regulation that may result
to this rule. Execution clause set forth in the DOE in the expenditure by states, tribal, or
procurement regulations. 48 CFR local governments, in the aggregate, or
E. Reviews Under the Regulatory 952.223–71 and 970.5223–1, 62 FR by the private sector, of $100 million in
Flexibility Act 34842, 34859–60 (June 17, 1997). If any one year. The Act also requires a
The Regulatory Flexibility Act of 1980 contractors at a DOE site fulfill their Federal agency to develop an effective
(5 U.S.C. 601 et seq.) requires that an contractual responsibilities for process to permit timely input by
agency prepare an initial regulatory integrated safety management properly, elected officials of state, tribal, or local
flexibility analysis for any regulation the worker safety and health program governments on a proposed ‘‘significant
which a general notice of proposed required by this regulation should intergovernmental mandate,’’ and
rulemaking is required, unless the require little if any new analysis or new requires an agency plan for giving notice
agency certifies that the rule, if documents to the extent that existing and opportunity to provide timely input
promulgated, will not have a significant analysis and documents are sufficient to potentially affected small
economic impact on a substantial for purposes of the regulations. governments before establishing any
number of small entities (5 U.S.C. Accordingly, no additional Office of requirements that might significantly or
605(b)). Management and Budget clearance is uniquely affect small governments. DOE
Today’s regulation establishes DOE’s required by the Paperwork Reduction has determined that the rule published
requirements for worker safety and Act of 1995 (44 U.S.C. 3501 et seq.) and today does not contain any Federal
mandates affecting small governments, VI. Approval of the Office of the 851.5 Enforcement.
so these requirements do not apply. Secretary 851.6 Petitions for generally applicable
rulemaking.
I. Review Under Executive Order 13211 The Secretary of Energy has approved 851.7 Request for a binding interpretive
publication of this final rule. ruling.
Executive Order 13211 (Actions 851.8 Informal requests for information.
List of Subjects
Concerning Regulations That Subpart B—Program Requirements
Significantly Affect Energy Supply, 10 CFR Part 850
851.10 General requirements.
Distribution, or Use), 66 FR 28355 (May Beryllium, Chronic beryllium disease, 851.11 Development and approval of
22, 2001) requires preparation and Hazardous substances, Lung diseases, worker safety and health program.
submission to OMB of a Statement of Occupational safety and health, 851.12 Implementation.
Energy Effects for significant regulatory Reporting and recordkeeping 851.13 Compliance.
actions under Executive Order 12866 requirements. Subpart C—Specific Program Requirements
that are likely to have a significant 851.20 Management responsibilities and
10 CFR Part 851
adverse effect on the supply, worker rights and responsibilities.
distribution, or use of energy. DOE has Civil penalty, Federal buildings and 851.21 Hazard identification and
determined that the rule published facilities, Incorporation by reference, assessment.
today does not have a significant Occupational safety and health, Safety, 851.22 Hazard prevention and abatement.
Reporting and recordkeeping 851.23 Safety and health standards.
adverse effect on the supply, 851.24 Functional areas.
distribution, or use of energy and thus requirements.
851.25 Training and information.
the requirement to prepare a Statement Issued in Washington, DC, on January 20, 851.26 Recordkeeping and reporting.
of Energy Effects does not apply. 2006. 851.27 Reference sources.
John Spitaleri Shaw, Subpart D—Variances
J. Review Under the Treasury and Assistant Secretary for Environment, Safety
General Government Appropriations 851.30 Consideration of variances.
and Health. 851.31 Variance process.
Act, 1999
■ For the reasons set forth in the 851.32 Action on variance requests.
Section 654 of the Treasury and preamble, the Department of Energy is 851.33 Terms and conditions.
amending chapter III of title 10 of the 851.34 Requests for conferences.
General Government Appropriations
Act, 1999 (Pub. L. 105–277) requires Code of Federal Regulations as follows: Subpart E—Enforcement Process
Federal agencies to issue a ‘‘Family 851.40 Investigations and inspections.
PART 850—CHRONIC BERYLLIUM 851.41 Settlement.
Policymaking Assessment’’ for any rule
DISEASE PREVENTION PROGRAM 851.42 Preliminary notice of violation.
that may affect family well-being. This
851.43 Final notice of violation.
rule has no impact on the autonomy or ■ 1. The authority citation for part 850
851.44 Administrative appeal.
integrity of the family as an institution. is revised to read as follows: 851.45 Direction to NNSA contractors.
Accordingly, DOE has concluded that it Authority: 42 U.S.C. 2201(i)(3), (p); 42
is not necessary to prepare a Family U.S.C. 2282c; 29 U.S.C. 668; 42 U.S.C. 7101 Appendix A to Part 851—Worker
Policymaking Assessment. et seq.; 50 U.S.C. 2401 et seq., E.O. 12196, 3 Safety and Health Functional Areas
CFR 1981 comp., at 145 as amended. Appendix B to Part 851—General
K. Review Under the Treasury and Statement of Enforcement Policy
General Government Appropriations ■ 2. Section 850.1 is revised to read as
Act, 2001 follows: Authority: 42 U.S.C. 2201(i)(3), (p); 42
§ 850.1 Scope. U.S.C. 2282c; 42 U.S.C. 5801 et seq.; 42
The Treasury and General U.S.C. 7101 et seq.; 50 U.S.C. 2401 et seq.
Government Appropriations Act, 2001 This part provides for establishment
(44 U.S.C. 3516, note) provides for of a chronic beryllium disease Subpart A—General Provisions
agencies to review most dissemination prevention program (CBDPP) that
supplements and is deemed an integral § 851.1 Scope and purpose.
of information to the public under
part of the worker safety and health (a) The worker safety and health
guidelines established by each agency requirements in this part govern the
program under part 851 of this chapter.
pursuant to general guidelines issued by conduct of contractor activities at DOE
■ 3. Section 850.4 is revised to read as
OMB. OMB’s guidelines were published sites.
at 67 FR 8452 (Feb. 22, 2002), and follows:
(b) This part establishes the:
DOE’s guidelines were published at 67 § 850.4 Enforcement. (1) Requirements for a worker safety
FR 62446 (Oct. 7, 2002). DOE has DOE may take appropriate steps and health program that reduces or
reviewed today’s final rule under the pursuant to part 851 of this chapter to prevents occupational injuries,
OMB and DOE guidelines, and has enforce compliance by contractors with illnesses, and accidental losses by
concluded that it is consistent with this part and any DOE-approved CBDPP. providing DOE contractors and their
applicable policies in those guidelines. ■ 4. A new part 851 is added to Chapter
workers with safe and healthful
III to read as follows: workplaces at DOE sites; and
L. Congressional Notification (2) Procedures for investigating
PART 851—WORKER SAFETY AND whether a violation of a requirement of
As required by 5 U.S.C. 801, DOE will
HEALTH PROGRAM this part has occurred, for determining
submit to Congress a report regarding
the nature and extent of any such
the issuance of today’s final rule prior Subpart A—General Provisions violation, and for imposing an
to the effective date set forth at the appropriate remedy.
Sec.
outset of this notice. The report will 851.1 Scope and purpose.
state that it has been determined that 851.2 Exclusions. § 851.2 Exclusions.
the rule is not a ‘‘major rule’’ as defined 851.3 Definitions. (a) This part does not apply to work
by 5 U.S.C. 801(2). 851.4 Compliance order. at a DOE site:
(1) Regulated by the Occupational other real property, as well as any (1) A statement specifying the
Safety and Health Administration; or construction, demolition, and requirement of this part to which the
(2) Operated under the authority of excavation activities conducted as part violation relates;
the Director, Naval Nuclear Propulsion, of environmental restoration or (2) A concise statement of the basis
pursuant to Executive Order 12344, as remediation efforts. for the determination;
set forth in Public Law 98–525, 42 Construction contractor means the (3) Any remedy, including the amount
U.S.C. 7158 note. lowest tiered contractor with primary of any civil penalty; and
(b) This part does not apply to responsibility for the execution of all (4) A statement explaining the
radiological hazards or nuclear construction work described within a reasoning behind any remedy.
explosives operations to the extent construction procurement or Final Order means an order of DOE
regulated by 10 CFR Parts 20, 820, 830 authorization document (e.g., that represents final agency action and,
or 835. construction contract, work order). if appropriate, imposes a remedy with
(c) This part does not apply to Construction manager means the which the recipient of the order must
transportation to or from a DOE site. individual or firm responsible to DOE comply.
for the supervision and administration General Counsel means the General
§ 851.3 Definitions. of a construction project to ensure the Counsel of DOE.
(a) As used in this part: construction contractor’s compliance Head of DOE Field Element means an
AEA means the Atomic Energy Act of with construction project requirements. individual who is the manager or head
1954, 42 U.S.C. 2011 et seq. Construction project means the full of the DOE operations office or field
Affected worker means a worker who scope of activities required on a office.
would be affected by the granting or Interpretative ruling means a
construction worksite to fulfill the
denial of a variance, or any authorized statement by the General Counsel
requirements of the construction
representative of the worker, such as a concerning the meaning or effect of a
procurement or authorization
collective bargaining agent. requirement of this part which relates to
document.
Closure facility means a facility that is Construction worksite is the area a specific factual situation but may also
non-operational and is, or is expected to within the limits necessary to perform be a ruling of general applicability if the
be permanently closed and/or the work described in the construction General Counsel determines such action
demolished, or title to which is to be appropriate.
procurement or authorization
expected to be transferred to another National defense variance means
document. It includes the facility being
entity for reuse. relief from a safety and health standard,
constructed or renovated along with all or portion thereof, to avoid serious
Closure facility hazard means a necessary staging and storage areas as
facility-related condition within a impairment of a national defense
well as adjacent areas subject to project mission.
closure facility involving deviations hazards.
from the technical requirements of NNSA means the National Nuclear
Contractor means any entity, Security Administration.
§ 851.23 of this part that would require including affiliated entities, such as a Nuclear explosive means an assembly
costly and extensive structural/ parent corporation, under contract with containing fissionable and/or fusionable
engineering modifications to be in DOE, or a subcontractor at any tier, that materials and main charge high-
compliance. has responsibilities for performing work
Cognizant Secretarial Officer means, explosive parts or propellants capable of
at a DOE site in furtherance of a DOE producing a nuclear detonation (e.g., a
with respect to a particular situation, mission. nuclear weapon or test device).
the Assistant Secretary, Deputy Covered workplace means a place at a Nuclear explosive operation means
Administrator, Program Office Director, DOE site where a contractor is any activity involving a nuclear
or equivalent DOE official who has responsible for performing work in explosive, including activities in which
primary line management responsibility furtherance of a DOE mission. main charge high-explosive parts and
for a contractor, or any other official to Director means a DOE Official to pit are collocated.
whom the CSO delegates in writing a whom the Secretary assigns the Occupational medicine provider
particular function under this part. authority to investigate the nature and means the designated site occupational
Compliance order means an order extent of compliance with the medicine director (SOMD) or the
issued by the Secretary to a contractor requirements of this part. individual providing medical services.
that mandates a remedy, work stoppage, DOE means the United States Permanent variance means relief from
or other action to address a situation Department of Energy, including the a safety and health standard, or portion
that violates, potentially violates, or National Nuclear Security thereof, to contractors who can prove
otherwise is inconsistent with a Administration. that their methods, conditions,
requirement of this part. DOE Enforcement Officer means a practices, operations, or processes
Consent order means any written DOE official to whom the Director provide workplaces that are as safe and
document, signed by the Director and a assigns the authority to investigate the healthful as those that follow the
contractor, containing stipulations or nature and extent of compliance with workplace safety and health standard
conclusions of fact or law and a remedy the requirements of this part. required by this part.
acceptable to both DOE and the DOE site means a DOE-owned or Preliminary notice of violation means
contractor. -leased area or location or other area or a document that sets forth the
Construction means combination of location controlled by DOE where preliminary conclusions that a
erection, installation, assembly, activities and operations are performed contractor has violated or is continuing
demolition, or fabrication activities at one or more facilities or places by a to violate a requirement of this part and
involved to create a new facility or to contractor in furtherance of a DOE includes:

alter, add to, rehabilitate, dismantle, or mission. (1) A statement specifying the
remove an existing facility. It also Final notice of violation means a requirement of this part to which the
includes the alteration and repair document that determines a contactor violation relates;
(including dredging, excavating, and has violated or is continuing to violate (2) A concise statement of the basis
painting) of buildings, structures, or a requirement of this part and includes: for alleging the violation;
(3) Any remedy, including the amount furtherance of a DOE mission at a paragraph (a) and contract penalties
of any proposed civil penalty; and covered workplace. under paragraph (b) of this section may
(4) A statement explaining the Workplace hazard means a physical, not exceed the total amount of fees paid
reasoning behind any proposed remedy. chemical, biological, or safety hazard by DOE to the contractor in that fiscal
Pressure systems means all pressure with any potential to cause illness, year.
vessels, and pressure sources including injury, or death to a person. (e) DOE shall not penalize a
cryogenics, pneumatic, hydraulic, and (b) Terms undefined in this part that contractor under both sections 234A
vacuum. Vacuum systems should be are defined in the Atomic Energy Act of and 234C of the AEA for the same
considered pressure systems due to 1954 must have the same meaning as violation.
their potential for catastrophic failure under that Act. (f) DOE enforcement actions through
due to backfill pressurization. civil penalties under paragraph (a) of
Associated hardware (e.g., gauges and § 851.4 Compliance order.
this section, start on February 9, 2007.
regulators), fittings, piping, pumps, and (a) The Secretary may issue to any
pressure relief devices are also integral contractor a Compliance Order that: § 851.6 Petitions for generally applicable
parts of the pressure system. (1) Identifies a situation that violates, rulemaking.
Remedy means any action (including, potentially violates, or otherwise is (a) Right to file. Any person may file
but not limited to, the assessment of inconsistent with a requirement of this a petition for generally applicable
civil penalties, the reduction of fees or part; rulemaking to amend or interpret
other payments under a contract, the (2) Mandates a remedy, work provisions of this part.
requirement of specific actions, or the stoppage, or other action; and, (b) How to file. Any person who wants
modification, suspension or rescission (3) States the reasons for the remedy, to file a petition for generally applicable
of a contract) necessary or appropriate work stoppage, or other action. rulemaking pursuant to this section
to rectify, prevent, or penalize a (b) A Compliance order is a final must file by mail or messenger in an
violation of a requirement of this part, order that is effective immediately envelope addressed to the Office of
including a compliance order issued by unless the Order specifies a different General Counsel, GC–1, U.S.
the Secretary pursuant to this part. effective date. Department of Energy, 1000
Safety and health standard means a (c) Within 15 calendar days of the Independence Avenue, SW.,
standard that addresses a workplace issuance of a Compliance Order, the Washington, DC 20585.
hazard by establishing limits, requiring recipient of the Order may request the (c) Content of rulemaking petitions. A
conditions, or prescribing the adoption Secretary to rescind or modify the petition under this section must:
or use of one or more practices, means, Order. A request does not stay the (1) Be labeled ‘‘Petition for
methods, operations, or processes, effectiveness of a Compliance Order Rulemaking Under 10 CFR 851;’’
reasonably necessary or appropriate to unless the Secretary issues an order to (2) Describe with particularity the
provide safe and healthful workplaces. that effect. provision of this part to be amended and
Secretary means the Secretary of (d) A copy of the Compliance Order the text of regulatory language to be
Energy. must be prominently posted, once added; and
Temporary variance means a short- issued, at or near the location where the (3) Explain why, if relevant, DOE
term relief for a new safety and health violation, potential violation, or should not choose to make policy by
standard when the contractor cannot inconsistency occurred until it is precedent through adjudication of
comply with the requirements by the corrected. petitions for assessment of civil penalty.
prescribed date because the necessary (d) Determinations upon rulemaking
construction or alteration of the facility § 851.5 Enforcement.
petitions. After considering the petition
cannot be completed in time or when (a) A contractor that is indemnified and other information DOE deems
technical personnel, materials, or under section 170d. of the AEA (or any relevant, DOE may grant the petition
equipment are temporarily unavailable. subcontractor or supplier thereto) and and issue an appropriate rulemaking
Unauthorized discharge means the that violates (or whose employee notice, or deny the petition because the
discharge of a firearm under violates) any requirement of this part rule being sought:
circumstances other than: (1) during shall be subject to a civil penalty of up (1) Would be inconsistent with
firearms training with the firearm to $70,000 for each such violation. If statutory law;
properly pointed down range (or toward any violation under this subsection is a (2) Would establish a generally
a target), or (2) the intentional firing at continuing violation, each day of the applicable policy in a subject matter
hostile parties when deadly force is violation shall constitute a separate area that should be left to case-by-case
authorized. violation for the purpose of computing determinations; or
Under Secretary means, with respect the civil penalty. (3) For other good cause.
to a particular situation, the DOE official (b) A contractor that violates any
who serves as the Under Secretary for requirement of this part may be subject § 851.7 Requests for a binding
Energy and Environment, or the Under to a reduction in fees or other payments interpretative ruling.
Secretary for Science, or the Under under a contract with DOE, pursuant to (a) Right to file. Any person subject to
Secretary for Nuclear Security/ the contract’s Conditional Payment of this part have the right to file a request
Administrator for National Nuclear Fee clause, or other contract clause for an interpretive ruling that is binding
Security Administration who has providing for such reductions. on DOE with regard to a question as to
primary line management responsibility (c) DOE may not penalize a contractor how the regulations in this part would
for a contractor. under both paragraphs (a) and (b) of this apply to particular facts and
Variance means an exception to section for the same violation of a circumstances.

compliance with some part of a safety requirement of this part. (b) How to file. Any person who wants
and health standard granted by the (d) For contractors listed in to file a request under this section must
Under Secretary to a contractor. subsection d. of section 234A of the file by mail or messenger in an envelop
Worker means an employee of a DOE AEA, 42 U.S.C. 2282a(d), the total addressed to the Office of General
contractor person who performs work in amount of civil penalties under Counsel, GC–1, U.S. Department of
Energy, 1000 Independence Avenue, (1) There is insufficient information (2) Any compliance order issued by
SW., Washington, DC 20585. upon which to base an interpretive the Secretary pursuant to § 851.4.
(c) Content of request for interpretive ruling;
(2) The interpretive question posed § 851.11 Development and approval of the
ruling. A request under this section
worker safety and health program.
must: should be treated in a general notice of
(1) Be in writing; proposed rulemaking; (a) Preparation and submission of
(2) Be labeled ‘‘Request for (3) There is an adequate procedure worker safety and health program. By
Interpretive Ruling Under 10 CFR 851;’’ elsewhere in this part for addressing the February 26, 2007, contractors must
(3) Identify the name, address, interpretive question such as a petition submit to the appropriate Head of DOE
telephone number, e-mail address, and for variance; or Field Element for approval a written
any designated representative of the (4) For other good cause. worker safety and health program that
person filing the request; (k) Public availability of interpretive provides the methods for implementing
(4) State the facts and circumstances rulings. For information of interested the requirements of Subpart C of this
relevant to the request; members of the public, DOE may file a part.
copy of interpretive rulings on a DOE (1) If a contractor is responsible for
(5) Be accompanied by copies of
internet web site. more than one covered workplace at a
relevant supporting documents if any;
DOE site, the contractor must establish
(6) Specifically identify the pertinent § 851.8 Informal requests for information. and maintain a single worker safety and
regulations and the related question on
(a) Any person may informally health program for the covered
which an interpretive ruling is sought;
request information under this section workplaces for which the contractor is
and
as to how to comply with the responsible.
(7) Include explanatory discussion in
requirements of this part, instead of (2) If more than one contractor is
support of the interpretive ruling being
applying for a binding interpretive responsible for covered workplaces,
sought.
ruling under § 851.7. DOE responses to each contractor must:
(d) Public comment. DOE may give (i) Establish and maintain a worker
public notice of any request for an informal requests for information under
this section are not binding on DOE and safety and health program for the
interpretive ruling and provide an workplaces for which the contractor is
opportunity for public comment. do not preclude enforcement actions
under this part. responsible; and
(e) Opportunity to respond to public (ii) Coordinate with the other
comment. DOE may provide an (b) Inquiries regarding the technical
requirements of the standards required contractors responsible for work at the
opportunity to any person who requests covered workplaces to ensure that there
an interpretive ruling to respond to by this part must be directed to the
Office of Environment, Safety and are clear roles, responsibilities and
public comments relating to the request. procedures to ensure the safety and
(f) Other sources of information. DOE Health, Office of Health (EH–5), U.S.
Department of Energy, 1000 health of workers at multi-contractor
may: workplaces.
Independence Avenue, SW.,
(1) Conduct an investigation of any (3) The worker safety and health
Washington, DC 20585.
statement in a request; program must describe how the
(c) Information regarding the general
(2) Consider any other source of contractor will:
statement of enforcement policy in the
information in evaluating a request for (i) Comply with the requirements set
appendix to this part must be directed
an interpretive ruling; and forth in Subpart C of this part that are
to the Office of Environment, Safety and
(3) Rely on previously issued applicable to the covered workplace,
Health, Office of Price-Anderson
interpretive rulings with addressing the including the methods for implementing
Enforcement (EH–6), U.S. Department of
same or a related issue. those requirements; and
Energy, 1000 Independence Avenue,
(g) Informal conference. DOE may (ii) Integrate the requirements set
SW., Washington, DC 20585.
convene an informal conference with forth in Subpart C of this part that are
the person requesting the interpretive Subpart B—Program Requirements applicable to a covered workplace with
ruling. other related site-specific worker
(h) Effect of interpretive ruling. Except § 851.10 General requirements. protection activities and with the
as provided in paragraph (i) of this (a) With respect to a covered integrated safety management system.
section, an interpretive ruling under this workplace for which a contractor is (b) DOE evaluation and approval. The
section is binding on DOE only with responsible, the contractor must: Head of DOE Field Element must
respect to the person who requested the (1) Provide a place of employment complete a review and provide written
ruling. that is free from recognized hazards that approval of the contractor’s worker
(i) Reliance on interpretive ruling. If are causing or have the potential to safety and health program, within 90
DOE issues an interpretive ruling under cause death or serious physical harm to days of receiving the document. The
this section, then DOE may not subject workers; and worker safety and health program and
the person who requested the ruling to (2) Ensure that work is performed in any updates are deemed approved 90
an enforcement action for civil penalties accordance with: days after submission if they are not
for actions reasonably taken in reliance (i) All applicable requirements of this specifically approved or rejected by
on the ruling, but a person may not act part; and DOE earlier.
in reliance on an interpretive ruling that (ii) With the worker safety and health (1) Beginning May 25, 2007, no work
is administratively rescinded or program for that workplace. may be performed at a covered
modified after opportunity to comment, (b) The written worker safety and workplace unless an approved worker
judicially invalidated, or overruled by health program must describe how the safety and health program is in place for
statute or regulation. contractor complies with the: the workplace.
(j) Denial of requests for an (1) Requirements set forth in Subpart (2) Contractors must send a copy of
interpretive ruling. DOE may deny a C of this part that are applicable to the the approved program to the Assistant
request for an interpretive ruling if DOE hazards associated with the contractor’s Secretary for Environment, Safety and
determines that: scope of work; and Health.
(3) Contractors must furnish a copy of required by this part if the appropriate harm, or other serious hazard to
the approved worker safety and health Head of the DOE Field Element workers, in circumstances where the
program, upon written request, to the approves such use on the basis of workers believe there is insufficient
affected workers or their designated written documentation provided by the time to utilize normal hazard reporting
representatives. contractor that identifies the specific and abatement procedures; and
(c) Updates. (1) Contractors must portions of the program, description, or (10) Inform workers of their rights and
submit an update of the worker safety process, including any additional responsibility by appropriate means,
and health program to the appropriate requirements or implementation including posting the DOE-designated
Head of DOE Field Element, for review methods to be added to the existing Worker Protection Poster in the
and approval whenever a significant program, description, or process, that workplace where it is accessible to all
change or addition to the program is satisfy the requirements of this part and workers.
made, or a change in contractors occurs. that provide a workplace as safe and (b) Worker rights and responsibilities.
(2) Contractors must submit annually healthful as would be provided by the Workers must comply with the
to DOE either an updated worker safety requirements of this part. requirements of this part, including the
and health program for approval or a (c) Nothing in this part shall be worker safety and health program,
letter stating that no changes are construed to limit or otherwise affect which are applicable to their own
necessary in the currently approved contractual obligations of a contractor to actions and conduct. Workers at a
worker safety and health program. comply with contractual requirements covered workplace have the right,
(3) Contactors must incorporate in the that are not inconsistent with the without reprisal, to:
worker safety and health program any requirements of this part. (1) Participate in activities described
changes, conditions, or workplace safety in this section on official time;
and health standards directed by DOE Subpart C—Specific Program (2) Have access to:
Requirements (i) DOE safety and health
consistent with the requirements of this
publications;
part and DEAR 970.5204–2, Laws,
§ 851.20 Management responsibilities and (ii) The worker safety and health
Regulations and DOE Directives worker rights and responsibilities. program for the covered workplace;
(December, 2000) and associated (iii) The standards, controls, and
contract clauses. (a) Management responsibilities.
Contractors are responsible for the procedures applicable to the covered
(d) Labor Organizations. If a workplace;
contractor employs or supervises safety and health of their workforce and
must ensure that contractor (iv) The safety and health poster that
workers who are represented for informs the worker of relevant rights
collective bargaining by a labor management at a covered workplace:
(1) Establish written policy, goals, and and responsibilities;
organization, the contractor must: (v) Limited information on any
(1) Give the labor organization timely objectives for the worker safety and
health program; recordkeeping log (OSHA Form 300).
notice of the development and Access is subject to Freedom of
implementation of the worker safety and (2) Use qualified worker safety and
health staff (e.g., a certified industrial Information Act requirements and
health program and any updates thereto; restrictions; and
and hygienist, or safety professional) to
(vi) The DOE Form 5484.3 (the DOE
(2) Upon timely request, bargain direct and manage the program;
(3) Assign worker safety and health equivalent to OSHA Form 301) that
concerning implementation of this part, contains the employee’s name as the
consistent with the Federal labor laws. program responsibilities, evaluate
injured or ill worker;
personnel performance, and hold
(3) Be notified when monitoring
§ 851.12 Implementation. personnel accountable for worker safety
results indicate the worker was
(a) Contractors must implement the and health performance; overexposed to hazardous materials;
requirements of this part. (4) Provide mechanisms to involve (4) Observe monitoring or measuring
(b) Nothing in this part precludes a workers and their elected of hazardous agents and have the results
contractor from taking any additional representatives in the development of of their own exposure monitoring;
protective action that is determined to the worker safety and health program (5) Have a representative authorized
be necessary to protect the safety and goals, objectives, and performance by employees accompany the Director
health of workers. measures and in the identification and or his authorized personnel during the
control of hazards in the workplace; physical inspection of the workplace for
§ 851.13 Compliance. (5) Provide workers with access to the purpose of aiding the inspection.
(a) Contractors must achieve information relevant to the worker When no authorized employee
compliance with all the requirements of safety and health program; representative is available, the Director
Subpart C of this part, and their (6) Establish procedures for workers or his authorized representative must
approved worker safety and health to report without reprisal job-related consult, as appropriate, with employees
program no later than May 25, 2007. fatalities, injuries, illnesses, incidents, on matters of worker safety and health;
Contractors may be required to comply and hazards and make (6) Request and receive results of
contractually with the requirements of recommendations about appropriate inspections and accident investigations;
this rule before February 9, 2007. ways to control those hazards; (7) Express concerns related to worker
(b) In the event a contractor has (7) Provide for prompt response to safety and health;
established a written safety and health such reports and recommendations; (8) Decline to perform an assigned
program, an Integrated Safety (8) Provide for regular communication task because of a reasonable belief that,
Management System (ISMS) description with workers about workplace safety under the circumstances, the task poses
pursuant to the DEAR Clause, or an and health matters; an imminent risk of death or serious
approved Work Smart Standards (WSS) (9) Establish procedures to permit physical harm to the worker coupled
process before the date of issuance of workers to stop work or decline to with a reasonable belief that there is
the final rule, the Contractor may use perform an assigned task because of a insufficient time to seek effective
that program, description, or process as reasonable belief that the task poses an redress through normal hazard reporting
the worker safety and health program imminent risk of death, serious physical and abatement procedures; and
(9) Stop work when the worker identified and potential hazards are are lower (more protective) than
discovers employee exposures to prevented or abated in a timely manner. permissible exposure limits in 29 CFR
imminently dangerous conditions or (1) For hazards identified either in the 1910. When the ACGIH TLVs are used
other serious hazards; provided that any facility design or during the as exposure limits, contractors must
stop work authority must be exercised development of procedures, controls nonetheless comply with the other
in a justifiable and responsible manner must be incorporated in the appropriate provisions of any applicable expanded
in accordance with procedures facility design or procedure. health standard found in 29 CFR 1910.
established in the approved worker (2) For existing hazards identified in (10) American National Standards
safety and health program. the workplace, contractors must: Institute (ANSI) Z88.2, ‘‘American
(i) Prioritize and implement National Standard for Respiratory
§ 851.21 Hazard identification and abatement actions according to the risk Protection,’’ (1992) (incorporated by
assessment. reference, see § 851.27).
to workers;
(a) Contractors must establish (ii) Implement interim protective (11) ANSI Z136.1, ‘‘Safe Use of
procedures to identify existing and measures pending final abatement; and Lasers,’’ (2000) (incorporated by
potential workplace hazards and assess (iii) Protect workers from dangerous reference, see § 851.27).
the risk of associated workers injury and safety and health conditions; (12) ANSI Z49.1, ‘‘Safety in Welding,
illness. Procedures must include (b) Contractors must select hazard Cutting and Allied Processes,’’ sections
methods to: controls based on the following 4.3 and E4.3 (1999) (incorporated by
(1) Assess worker exposure to hierarchy: reference, see § 851.27).
chemical, physical, biological, or safety (1) Elimination or substitution of the (13) National Fire Protection
workplace hazards through appropriate hazards where feasible and appropriate; Association (NFPA) 70, ‘‘National
workplace monitoring; (2) Engineering controls where Electrical Code,’’ (2005) (incorporated
(2) Document assessment for feasible and appropriate; by reference, see § 851.27).
chemical, physical, biological, and (3) Work practices and administrative (14) NFPA 70E, ‘‘Standard for
safety workplace hazards using controls that limit worker exposures; Electrical Safety in the Workplace,’’
recognized exposure assessment and and (2004) (incorporated by reference, see
testing methodologies and using of (4) Personal protective equipment. § 851.27).
accredited and certified laboratories; (c) Contractors must address hazards (b) Nothing in this part must be
(3) Record observations, testing and when selecting or purchasing construed as relieving a contractor from
monitoring results; equipment, products, and services. complying with any additional specific
(4) Analyze designs of new facilities safety and health requirement that it
and modifications to existing facilities § 851.23 Safety and health standards. determines to be necessary to protect
and equipment for potential workplace (a) Contractors must comply with the the safety and health of workers.
hazards; following safety and health standards § 851.24 Functional areas.
(5) Evaluate operations, procedures, that are applicable to the hazards at
(a) Contractors must have a structured
and facilities to identify workplace their covered workplace:
approach to their worker safety and
hazards; (1) Title 10 Code of Federal
health program which at a minimum,
(6) Perform routine job activity-level Regulations (CFR) 850, ‘‘Chronic
include provisions for the following
hazard analyses; Beryllium Disease Prevention Program.’’
applicable functional areas in their
(7) Review site safety and health (2) Title 29 CFR, Parts 1904.4 through
worker safety and health program:
experience information; and 1904.11, 1904.29 through 1904.33;
construction safety; fire protection;
(8) Consider interaction between 1904.44, and 1904.46, ‘‘Recording and
firearms safety; explosives safety;
workplace hazards and other hazards Reporting Occupational Injuries and
pressure safety; electrical safety;
such as radiological hazards. Illnesses.’’
industrial hygiene; occupational
(b) Contractors must submit to the (3) Title 29 CFR, Part 1910,
medicine; biological safety; and motor
Head of DOE Field Element a list of ‘‘Occupational Safety and Health
vehicle safety.
closure facility hazards and the Standards,’’ excluding 29 CFR (b) In implementing the structured
established controls within 90 days after 1910.1096, ‘‘Ionizing Radiation.’’ approach required by paragraph (a) of
identifying such hazards. The Head of (4) Title 29 CFR, Part 1915, ‘‘Shipyard this section, contractors must comply
DOE Field Element, with concurrence Employment.’’ with the applicable standards and
by the Cognizant Secretarial Officer, has (5) Title 29 CFR, Part 1917, ‘‘Marine provisions in Appendix A of this part,
90 days to accept the closure facility Terminals.’’ entitled ‘‘Worker Safety and Health
hazard controls or direct additional (6) Title 29 CFR, Part 1918, ‘‘Safety
Functional Areas.’’
actions to either: and Health Regulations for
(1) Achieve technical compliance; or Longshoring.’’ § 851.25 Training and information.
(2) Provide additional controls to (7) Title 29 CFR, Part 1926, ‘‘Safety (a) Contractors must develop and
protect the workers. and Health Regulations for implement a worker safety and health
(c) Contractors must perform the Construction.’’ training and information program to
activities identified in paragraph (a) of (8) Title 29 CFR, Part 1928, ensure that all workers exposed or
this section, initially to obtain baseline ‘‘Occupational Safety and Health potentially exposed to hazards are
information and as often thereafter as Standards for Agriculture.’’ provided with the training and
necessary to ensure compliance with the (9) American Conference of information on that hazard in order to
requirements in this Subpart. Governmental Industrial Hygienists perform their duties in a safe and
(ACGIH), ‘‘Threshold Limit Values for healthful manner.

§ 851.22 Hazard prevention and Chemical Substances and Physical (b) The contractor must provide:
abatement. Agents and Biological Exposure (1) Training and information for new
(a) Contractors must establish and Indices,’’ (2005) (incorporated by workers, before or at the time of initial
implement a hazard prevention and reference, see § 851.27) when the assignment to a job involving exposure
abatement process to ensure that all ACGIH Threshold Limit Values (TLVs) to a hazard;
(2) Periodic training as often as (ii) U.S. Department of Energy, Office (ix) B31.11—2002—Slurry
necessary to ensure that workers are of Environment, Safety and Health, Transportation Piping Systems; and
adequately trained and informed; and Forrestal Building, 1000 Independence (x) B31G—1991—Manual for
(3) Additional training when safety Ave., SW., Washington, DC 20585. Determining Remaining Strength of
and health information or a change in (iii) American National Standards Corroded Pipelines.
workplace conditions indicates that a Institute Headquarters, 25 West 43rd (9) DOE Manual 231.1–1A,
new or increased hazard exists. Street, New York, NY 10036. Telephone Environment, Safety and Health
(c) Contractors must provide training number: 212–642–4980, or go to: Reporting Manual, September 9, 2004.
and information to workers who have http://www.ansi.org. (10) DOE Manual 440.1–1A, DOE
worker safety and health program (iv) National Fire Protection Explosives Safety Manual, Contractor
responsibilities that is necessary for Association, 1 Batterymarch Park, Requirements Document (Attachment
them to carry out those responsibilities. Quincy, MA 02169. Telephone: 617 2), January 9, 2006.
770–3000, or go to: http://www.nfpa.org.
§ 851.26 Recordkeeping and reporting. (v) American Conference of Subpart D—Variances
(a) Recordkeeping. Contractors must: Governmental Industrial Hygienist
(1) Establish and maintain complete § 851.30 Consideration of variances.
(ACGIH), 1330 Kemper Meadow Drive,
and accurate records of all hazard Cincinnati, OH 45240. Telephone (a) Variances shall be granted by the
inventory information, hazard number 513–742–2020, or go to: Under Secretary after considering the
assessments, exposure measurements, http://www.acgih.org. recommendation of the Assistant
and exposure controls. (vi) American Society of Mechanical Secretary for Environment, Safety and
(2) Ensure that the work-related Engineers (ASME), P.O. Box 2300 Health. The authority to grant a variance
injuries and illnesses of its workers and Fairfield, NJ 07007. Telephone: cannot be delegated.
subcontractor workers are recorded and 800–843–2763, or got to: (b) The application must satisfy the
reported accurately and consistent with http://www.asme.org. requirements for applications specified
DOE Manual 231.1–1A, Environment, (b) List of standards incorporated by in § 851.31.
Safety and Health Reporting Manual, reference. (1) American National § 851.31 Variance process.
September 9, 2004 (incorporated by Standards Institute (ANSI) Z88.2,
reference, see § 851.27). (a) Application. Contractors desiring a
‘‘American National Standard for
(3) Comply with the applicable variance from a safety and health
Respiratory Protection,’’ (1992).
occupational injury and illness (2) ANSI Z136.1, ‘‘Safe Use of Lasers,’’ standard, or portion thereof, may submit
recordkeeping and reporting workplace (2000). a written application containing the
safety and health standards in § 851.23 (3) ANSI Z49.1, ‘‘Safety in Welding, information in paragraphs (c) and (d) of
at their site, unless otherwise directed Cutting and Allied Processes,’’ sections this section to the appropriate CSO.
in DOE Manual 231.1–1A. 4.3 and E4.3, (1999). (1) The CSO may forward the
(4) Not conceal nor destroy any (4) National Fire Protection application to the Assistant Secretary
information concerning non-compliance Association (NFPA) 70, ‘‘National for Environment, Safety and Health.
or potential noncompliance with the Electrical Code,’’ (2005). (2) If the CSO does not forward the
requirements of this part. (5) NFPA 70E, ‘‘Standard for application to the Assistant Secretary
(b) Reporting and investigation. Electrical Safety in the Workplace,’’ for Environment, Safety and Health, the
Contractors must: (2004). CSO must return the application to the
(1) Report and investigate accidents, (6) American Conference of contractor with a written statement
injuries and illness; and Governmental Industrial Hygienists, explaining why the application was not
(2) Analyze related data for trends and ‘‘Threshold Limit Values for Chemical forwarded.
lessons learned (reference DOE Order Substances and Physical Agents and (3) Upon receipt of an application
225.1A, Accident Investigations, Biological Exposure Indices,’’ (2005). from a CSO, the Assistant Secretary for
November 26, 1997). (7) American Society of Mechanical Environment, Safety and Health must
Engineers (ASME) Boilers and Pressure review the application for a variance
§ 851.27 Reference sources. and make a written recommendation to:
Vessel Code, sections I through XII
(a) Materials incorporated by including applicable Code Cases, (2004). (i) Approve the application;
reference. (1) General. The following (8) ASME B31 (ASME Code for (ii) Approve the application with
standards which are not otherwise set Pressure Piping) as follows: conditions; or
forth in part 851 are incorporated by (i) B31.1—2001—Power Piping, and (iii) Deny the application.
reference and made a part of part 851. B31.1a—2002—Addenda to ASME (b) Defective applications. If an
The standards listed in this section have B31.1—2001; application submitted pursuant to
been approved for incorporation by (ii) B31.2—1968—Fuel Gas Piping; § 851.31(a) is determined by the
reference by the Director of the Federal (iii) B31.3—2002—Process Piping; Assistant Secretary for Environment,
Register in accordance with 5 U.S.C. (iv) B31.4—2002—Pipeline Safety and Health to be incomplete, the
552(a) and 1 CFR part 51. Transportation Systems for Liquid Assistant Secretary may:
(2) Availability of standards. The Hydrocarbons and Other Liquids; (1) Return the application to the
standards incorporated by reference are (v) B31.5—2001—Refrigeration Piping contractor with a written explanation of
available for inspection at: and Heat Transfer Components, and what information is needed to permit
(i) National Archives and Records B31.5a—2004, Addenda to ASME consideration of the application; or
Administration (NARA). For more B31.5—2001; (2) Request the contractor to provide
information on the availability of this (vi) B31.8—2003—Gas Transmission necessary information.

material at NARA, call 202–741–6030, and Distribution Piping Systems; (c) Content. All variance applications
or go to: http://www.archives.gov/ (vii) B31.8S—2001—Managing submitted pursuant to paragraph (a) of
federal_register/ System Integrity of Gas Pipelines; this section must include:
code_of_federal_regulations/ (viii) B31.9—1996—Building Services (1) The name and address of the
ibr_locations.html Piping; contractor;
(2) The address of the DOE site or (C) The contractor has an effective (3) The notification must include a
sites involved; program for coming into compliance reference to the safety and health
(3) A specification of the standard, or with the standard as quickly as standard or portion thereof that is the
portion thereof, from which the practicable. subject of the application, a detailed
contractor seeks a variance; (2) Permanent variance. An description of the variance, the basis for
(4) A description of the steps that the application submitted for a permanent the approval and any terms and
contractor has taken to inform the variance pursuant to paragraph (a) of conditions of the approval.
affected workers of the application, this section must, in addition to the (4) If the Under Secretary denies a
which must include giving a copy content required in paragraph (b) of this variance, the Under Secretary must
thereof to their authorized section, include: notify the Assistant Secretary for
representative, posting a statement, (i) A description of the conditions, Environment, Safety and Health who
giving a summary of the application and practices, means, methods, operations, must notify the appropriate CSO who
specifying where a copy may be or processes used or proposed to be must notify the contractor.
examined at the place or places where used by the contractor; and (5) The notification must include the
notices to workers are normally posted; (ii) A statement showing how the grounds for denial.
and (b) Approval criteria. A variance may
conditions, practices, means, methods,
(5) A description of how affected be granted if the variance:
operations, or processes used or (1) Is consistent with section 3173 of
workers have been informed of their proposed to be used would provide the NDAA;
right to petition the Assistant Secretary workers a place of employment which is (2) Does not present an undue risk to
for Environment, Safety and Health or as safe and healthful as would result worker safety and health;
designee for a conference; and from compliance with the standard from (3) Is warranted under the
(6) Any requests for a conference, as which a variance is sought. circumstances;
provided in § 851.34. (3) National defense variance. (i) An (4) Satisfies the requirements of
(d) Types of variances. Contractors application submitted for a national § 851.31 of this part for the type of
may apply for the following types of defense variance pursuant to paragraph variance requested.
variances: (a) of this section must, in addition to (c) Procedures for a denial
(1) Temporary variance. Applications the content required in paragraph (b) of recommendation. (1) If the Assistant
for a temporary variance pursuant to this section, include: Secretary for Environment, Safety and
paragraph (a) of this section must be (A) A statement by the contractor Health recommends denial of a variance
submitted at least 30 days before the showing that the variance sought is application, the Assistant Secretary
effective date of a new safety and health necessary to avoid serious impairment must notify the CSO of the denial
standard and, in addition to the content of national defense; and recommendation and the grounds for
required by paragraph (b) of this section, (B) A statement showing how the the denial recommendation.
must include: conditions, practices, means, methods, (2) Upon receipt of a denial
(i) A statement by the contractor operations, or processes used or recommendation, the CSO may:
explaining the contractor is unable to proposed to be used would provide (i) Notify the contractor that the
comply with the standard or portion workers a safe and healthful place of variance application is denied on the
thereof by its effective date and a employment in a manner that, to the grounds cited by the Assistant
detailed statement of the factual basis extent practical taking into account the Secretary; or
and representations of qualified persons national defense mission, is consistent (ii) Forward to the Under Secretary
that support the contractor’s statement; the variance application, the denial
with the standard from which a variance
(ii) A statement of the steps the recommendation, the grounds for the
is sought.
contractor has taken and plans to take, denial recommendation, and any
(ii) A national defense variance may
with specific dates if appropriate, to information that supports an action
be granted for a maximum of six
protect workers against the hazard different than that recommended by the
months, unless there is a showing that
covered by the standard; Assistant Secretary.
a longer period is essential to carrying (3) If the CSO forwards the
(iii) A statement of when the out a national defense mission. application to the Under Secretary, the
contractor expects to be able to comply
§ 851.32 Action on variance requests. procedures in paragraphs (a)(2), (3), (4)
with the standard and of what steps the
and (5) of this section apply.
contractor has taken and plans to take, (a) Procedures for an approval (4) A denial of an application
with specific dates if appropriate, to recommendation. (1) If the Assistant pursuant to this section shall be without
come into compliance with the Secretary for Environment, Safety and prejudice to submitting of another
standard; Health recommends approval of a application
(iv) A statement of the facts the variance application, the Assistant (d) Grounds for denial of a variance.
contractor would show to establish that: Secretary must forward to the Under A variance may be denied if:
(A) The contractor is unable to Secretary the variance application and (1) Enforcement of the violation
comply with the standard by its the approval recommendation including would be handled as a de minimis
effective date because of unavailability a discussion of the basis for the violation (defined as a deviation from
of professional or technical personnel or recommendation and any terms and the requirement of a standard that has
materials and equipment needed to conditions proposed for inclusion as no direct or immediate relationship to
come into compliance with the standard part of the approval. safety or health, and no enforcement
or because necessary construction or (2) If the Under Secretary approves a action will be taken);
alteration of facilities cannot be variance, the Under Secretary must (2) When a variance is not necessary
completed by the effective date; notify the Assistant Secretary for for the conditions, practice, means,
(B) The contractor is taking all Environment, Safety and Health who methods, operations, or processes used
available steps to safeguard the workers must notify the Office of Price-Anderson or proposed to be used by contractor;
against the hazards covered by the Enforcement and the CSO who must (3) Contractor does not demonstrate
standard; and promptly notify the contractor. that the approval criteria are met.
§ 851.33 Terms and conditions. be investigated or inspected as fully as create the basis for any legally
A variance may contain appropriate possible and include supporting enforceable requirement pursuant to
terms and conditions including, but not documentation and information. The this part.
limited to, provisions that: worker or worker representative has the (k) The Director may sign, issue and
(a) Limit its duration; right to remain anonymous upon filing serve subpoenas.
(b) Require alternative action; a request for an investigation or
§ 851.41 Settlement.
(c) Require partial compliance; and inspection.
(d) Establish a schedule for full or (d) The Director must inform any (a) DOE encourages settlement of a
partial compliance. contractor that is the subject of an proceeding under this subpart at any
investigation or inspection in writing at time if the settlement is consistent with
§ 851.34 Requests for conferences. the initiation of the investigation or this part. The Director and a contractor
(a) Within the time allotted by a inspection and must inform the may confer at any time concerning
notice of the filling of an application, contractor of the general purpose of the settlement. A settlement conference is
any affected contractor or worker may investigation or inspection. not open to the public and DOE does
file with the Assistant Secretary for (e) DOE shall not disclose information not make a transcript of the conference.
Environment, Safety and Health a or documents that are obtained during (b) Notwithstanding any other
request for a conference on the any investigation or inspection unless provision of this part, the Director may
application for a variance. the Director directs or authorizes the resolve any issues in an outstanding
(b) A request for a conference filed public disclosure of the investigation. proceeding under this subpart with a
pursuant to paragraph (a) of this section Prior to such authorization, DOE must consent order.
must include: determine that disclosure is not (1) The Director and the contractor, or
(1) A concise statement explaining precluded by the Freedom of a duly authorized representative thereto,
how the contractor or worker would be Information Act, 5 U.S.C. 552 and part must sign the consent order and
affected by the variance applied for, 1004 of this title. Once disclosed indicate agreement to the terms
including relevant facts; pursuant to the Director’s authorization, contained therein.
(2) A specification of any statement or the information or documents are a (2) A contractor is not required to
representation in the application which matter of public record. admit in a consent order that a
is denied, and a concise summary of the (f) A request for confidential requirement of this part has been
evidence that would be adduced in treatment of information for purposes of violated.
support of each denial; and the Freedom of Information Act does (3) DOE is not required to make a
(3) Any other views or arguments on not prevent disclosure by the Director if finding in a consent order that a
any issue of fact or law presented. the Director determines disclosure to be contractor has violated a requirement of
(c) The Assistant Secretary for in the public interest and otherwise this part.
Environment, Safety and Health, or permitted or required by law. (4) A consent order must set forth the
designee, must respond to a request (g) During the course of an relevant facts that form the basis for the
within fifteen days and, if the request is investigation or inspection, any order and what remedy, if any, is
granted, indicate the time and place of contractor may submit any document, imposed.
statement of facts, or memorandum of (5) A consent order shall constitute a
the conference and the DOE participants
law for the purpose of explaining the final order.
in the conference.
contractor’s position or furnish § 851.42 Preliminary notice of violation.
Subpart E—Enforcement Process information which the contractor (a) Based on a determination by the
considers relevant to a matter or activity Director that there is a reasonable basis
§ 851.40 Investigations and inspections. under investigation or inspection.
(a) The Director may initiate and to believe a contractor has violated or is
(h) The Director may convene an
conduct investigations and inspections continuing to violate a requirement of
informal conference to discuss any
relating to the scope, nature and extent this part, the Director may issue a
situation that might be a violation of a
of compliance by a contractor with the preliminary notice of violation (PNOV)
requirement of this part, its significance
requirements of this part and take such to the contractor.
and cause, any corrective action taken (b) A PNOV must indicate:
action as the Director deems necessary or not taken by the contractor, any (1) The date, facts, and nature of each
and appropriate to the conduct of the mitigating or aggravating circumstances, act or omission upon which each
investigation or inspection. DOE and any other information. A conference alleged violation is based;
Enforcement Officers have the right to is not normally open to the public and (2) The particular requirement
enter work areas without delay to the DOE does not make a transcript of the involved in each alleged violation;
extent practicable, to conduct conference. The Director may compel a (3) The proposed remedy for each
inspections under this subpart. contractor to attend the conference. alleged violation, including the amount
(b) Contractors must fully cooperate (i) If facts disclosed by an of any civil penalty; and
with the Director during all phases of investigation or inspection indicate that (4) The obligation of the contractor to
the enforcement process and provide further action is unnecessary or submit a written reply to the Director
complete and accurate records and unwarranted, the Director may close the within 30 calendar days of receipt of the
documentation as requested by the investigation without prejudice. PNOV.
Director during investigation or (j) The Director may issue (c) A reply to a PNOV must contain
inspection activities. enforcement letters that communicate a statement of all relevant facts
(c) Any worker or worker DOE’s expectations with respect to any pertaining to an alleged violation.
representative may request that the aspect of the requirements of this part, (1) The reply must:
Director initiate an investigation or including identification and reporting of (i) State any facts, explanations and
inspection pursuant to paragraph (a) of issues, corrective actions, and arguments that support a denial of the
this section. A request for an implementation of the contractor’s alleged violation;
investigation or inspection must safety and health program; provided (ii) Demonstrate any extenuating
describe the subject matter or activity to that an enforcement letter may not circumstances or other reason why a
proposed remedy should not be within 30 calendar days from receipt of designated representative on the construction
imposed or should be mitigated; the final notice. worksite who is knowledgeable of the
(iii) Discuss the relevant authorities (b) In order to exhaust administrative project’s hazards and has full authority to act
that support the position asserted, remedies with respect to a final notice on behalf of the construction contractor. The
contractor’s designated representative must
including rulings, regulations, of violation, the contractor must petition make frequent and regular inspections of the
interpretations, and previous decisions the Office of Hearings and Appeals for construction worksite to identify and correct
issued by DOE; and review in accordance with paragraph (a) any instances of noncompliance with project
(iv) Furnish full and complete of this section. safety and health requirements.
answers to any questions set forth in the (c) Workers must be instructed to report to
preliminary notice. § 851.45 Direction to NNSA contractors. the construction contractor’s designated
(2) Copies of all relevant documents (a) Notwithstanding any other representative, hazards not previously
must be submitted with the reply. provision of this part, the NNSA identified or evaluated. If immediate
(d) If a contractor fails to submit a Administrator, rather than the Director, corrective action is not possible or the hazard
written reply within 30 calendar days of signs, issues and serves the following falls outside of project scope, the
actions that direct NNSA contractors: construction contractor must immediately
receipt of a PNOV: notify affected workers, post appropriate
(1) The contractor relinquishes any (1) Subpoenas;
warning signs, implement needed interim
right to appeal any matter in the (2) Orders to compel attendance; control measures, and notify the construction
preliminary notice; and (3) Disclosures of information or manager of the action taken. The contractor
(2) The preliminary notice, including documents obtained during an or the designated representative must stop
any proposed remedies therein, investigation or inspection; work in the affected area until appropriate
constitutes a final order. (4) Preliminary notices of violations; protective measures are established.
(e) A copy of the PNOV must be and (d) The construction contractor must
prominently posted, once final, at or (5) Final notices of violations. prepare a written construction project safety
near the location where the violation (b) The NNSA Administrator shall act and health plan to implement the
after consideration of the Director’s requirements of this section and obtain
occurred until the violation is corrected. approval of the plan by the construction
recommendation. manager prior to commencement of any work
§ 851.43 Final notice of violation.
Appendix A to Part 851—Worker covered by the plan. In the plan, the
(a) If a contractor submits a written contractor must designate the individual(s)
reply within 30 calendar days of receipt Safety and Health Functional Areas
responsible for on-site implementation of the
of a preliminary notice of violation This appendix establishes the mandatory plan, specify qualifications for those
(PNOV), that presents a disagreement requirements for implementing the individuals, and provide a list of those
with any aspect of the PNOV and civil applicable functional areas required by project activities for which subsequent
penalty, the Director must review the § 851.24. hazard analyses are to be performed. The
submitted reply and make a final 1. Construction Safety level of detail within the construction project
determination whether the contractor safety and health plan should be
(a) For each separately definable commensurate with the size, complexity and
violated or is continuing to violate a construction activity (e.g., excavations, risk level of the construction project. The
requirement of this part. foundations, structural steel, roofing) the content of this plan need not duplicate those
(b) Based on a determination by the construction contractor must: provisions that were previously submitted
Director that a contractor has violated or (1) Prepare and have approved by the and approved as required by § 851.11.
is continuing to violate a requirement of construction manager an activity hazard
analysis prior to commencement of affected 2. Fire Protection
this part, the Director may issue to the
contractor a final notice of violation that work. Such analyses must: (a) Contractors must implement a
(i) Identify foreseeable hazards and comprehensive fire safety and emergency
states concisely the determined
planned protective measures; response program to protect workers
violation and any remedy, including the (ii) Address further hazards revealed by commensurate with the nature of the work
amount of any civil penalty imposed on supplemental site information (e.g., site that is performed. This includes appropriate
the contractor. The final notice of characterization data, as-built drawings) facility and site-wide fire protection, fire
violation must state that the contractor provided by the construction manager; alarm notification and egress features, and
may petition the Office of Hearings and (iii) Provide drawings and/or other access to a fully staffed, trained, and
Appeals for review of the final notice in documentation of protective measures for equipped emergency response organization
accordance with 10 CFR part 1003, which applicable Occupational Safety and that is capable of responding in a timely and
subpart G. Health Administration (OSHA) standards effective manner to site emergencies.
(c) If a contractor fails to submit a require preparation by a Professional (b) An acceptable fire protection program
Engineer or other qualified professional, and must include those fire protection criteria
petition for review to the Office of (iv) Identify competent persons required and procedures, analyses, hardware and
Hearings and Appeals within 30 for workplace inspections of the construction systems, apparatus and equipment, and
calendar days of receipt of a final notice activity, where required by OSHA standards. personnel that would comprehensively
of violation pursuant to § 851.42: (2) Ensure workers are aware of foreseeable ensure that the objective in paragraph 2(a) of
(1) The contractor relinquishes any hazards and the protective measures this section is met. This includes meeting
right to appeal any matter in the final described within the activity analysis prior to applicable building codes and National Fire
notice; and beginning work on the affected activity. Protection Association codes and standards.
(2) The final notice, including any (3) Require that workers acknowledge
being informed of the hazards and protective 3. Explosives Safety
remedies therein, constitutes a final
measures associated with assigned work (a) Contractors responsible for the use of
order.
activities. Those workers failing to utilize explosive materials must establish and
§ 851.44 Administrative appeal. appropriate protective measures must be implement a comprehensive explosives
subject to the construction contractor’s safety program.
(a) Any contractor that receives a final disciplinary process. (b) Contractors must comply with the
notice of violation may petition the (b) During periods of active construction policy and requirements specified in the DOE
Office of Hearings and Appeals for (i.e., excluding weekends, weather delays, or Manual 440.1–1A, DOE Explosives Safety
review of the final notice in accordance other periods of work inactivity), the Manual, Contractor Requirements Document
with part 1003, subpart G of this title, construction contractor must have a (Attachment 2), January 9, 2006
(incorporated by reference, see § 851.27). A by a qualified independent design issued any firearms. Authorization to remain
Contractor may choose a successor version, if professional (i.e., professional engineer). in armed status will continue only if the
approved by DOE. Documented organizational peer review is employee demonstrates the technical and
(c) Contractors must determine the acceptable. practical knowledge of firearms safety semi-
applicability of the explosives safety (2) Qualified personnel must be used to annually;
directive requirements to research and perform examinations and inspections of (2) Authorized armed personnel must
development laboratory type operations materials, in-process fabrications, non- demonstrate through documented limited
consistent with the DOE level of protection destructive tests, and acceptance test. scope performance tests both technical and
criteria described in the explosives safety (3) Documentation, traceability, and practical knowledge of firearms handling and
directive. accountability must be maintained for each safety on a semi-annual basis;
pressure vessel or system, including (3) All firearms training lesson plans must
4. Pressure Safety
descriptions of design, pressure conditions, incorporate safety for all aspects of firearms
(a) Contractors must establish safety testing, inspection, operation, repair, and training task performance standards. The
policies and procedures to ensure that maintenance. lesson plans must follow the standards set
pressure systems are designed, fabricated, forth by the Safeguards and Security Central
tested, inspected, maintained, repaired, and 5. Firearms Safety
Training Academy’s standard training
operated by trained and qualified personnel (a) A contractor engaged in DOE activities programs;
in accordance with applicable and sound involving the use of firearms must establish (4) Firearms safety briefings must
engineering principles. firearms safety policies and procedures for immediately precede training, qualifications,
(b) Contractors must ensure that all security operations, and training to ensure and evaluation activities involving live fire
pressure vessels, boilers, air receivers, and proper accident prevention controls are in and/or engagement simulation systems;
supporting piping systems conform to: place. (5) A safety analysis approved by the Head
(1) The applicable American Society of (1) Written procedures must address of DOE Field Element must be developed for
Mechanical Engineers (ASME) Boiler and firearms safety, engineering and the facilities and operation of each live fire
Pressure Vessel Code (2004); sections I administrative controls, as well as personal range prior to implementation of any new
through section XII including applicable protective equipment requirements. training, qualification, or evaluation activity.
Code Cases (incorporated by reference, see (2) As a minimum, procedures must be Results of these analyses must be
§ 851.27) established for: incorporated into procedures, lesson plans,
(2) The applicable ASME B31 (Code for (i) Storage, handling, cleaning, inventory, exercise plans, and limited scope
Pressure Piping) standards as indicated and maintenance of firearms and associated performance tests;
below; and or as indicated in paragraph (b)(3) ammunition; (6) Firing range safety procedures must be
of this section: (ii) Activities such as loading, unloading, conspicuously posted at all range facilities;
(i) B31.1—2001—Power Piping, and and exchanging firearms. These procedures and
B31.1a—2002—Addenda to ASME B31.1— must address use of bullet containment (7) Live fire ranges, approved by the Head
2001 (incorporated by reference, see devices and those techniques to be used of DOE Field Element, must be properly sited
§ 851.27); when no bullet containment device is to protect personnel on the range, as well as
(ii) B31.2—1968—Fuel Gas Piping available; personnel and property not associated with
(incorporated by reference, see § 851.27); (iii) Use and storage of pyrotechnics, the range.
(iii) B31.3—2002—Process Piping explosives, and/or explosive projectiles; (f) Contractors must ensure that the
(incorporated by reference, see § 851.27); (iv) Handling misfires, duds, and transportation, handling, placarding, and
(iv) B31.4—2002—Pipeline Transportation unauthorized discharges; storage of munitions conform to the
Systems for Liquid Hydrocarbons and Other (v) Live fire training, qualification, and applicable DOE requirements.
Liquids (incorporated by reference, see evaluation activities;
§ 851.27); (vi) Training and exercises using 6. Industrial Hygiene
(v) B31.5—2001—Refrigeration Piping and engagement simulation systems; Contractors must implement a
Heat Transfer Components, and B31.5a— (vii) Medical response at firearms training comprehensive industrial hygiene program
2004, Addenda to ASME B31.5—2001 facilities; and that includes at least the following elements:
(incorporated by reference, see § 851.27); (viii) Use of firing ranges by personnel (a) Initial or baseline surveys and periodic
(vi) B31.8—2003—Gas Transmission and other than DOE or DOE contractor protective resurveys and/or exposure monitoring as
Distribution Piping Systems (incorporated by forces personnel. appropriate of all work areas or operations to
reference, see § 851.27); (b) Contractors must ensure that personnel identify and evaluate potential worker health
(vii) B31.8S—2001—Managing System responsible for the direction and operation of risks;
Integrity of Gas Pipelines (incorporated by the firearms safety program are professionally (b) Coordination with planning and design
reference, see § 851.27); qualified and have sufficient time and personnel to anticipate and control health
(viii) B31.9—1996—Building Services authority to implement the procedures under hazards that proposed facilities and
Piping (incorporated by reference, see this section. operations would introduce;
§ 851.27); (c) Contractors must ensure that firearms (c) Coordination with cognizant
(ix) B31.11—2002—Slurry Transportation instructors and armorers have been certified occupational medical, environmental, health
Piping Systems (incorporated by reference, by the Safeguards and Security National physics, and work planning professionals;
see § 851.27); and Training Center to conduct the level of (d) Policies and procedures to mitigate the
(x) B31G—1991—Manual for Determining activity provided. Personnel must not be risk from identified and potential
Remaining Strength of Corroded Pipelines allowed to conduct activities for which they occupational carcinogens;
(incorporated by reference, see § 851.27). have not been certified. (e) Professionally and technically qualified
(3) The strictest applicable state and local (d) Contractors must conduct formal industrial hygienists to manage and
codes. appraisals assessing implementation of implement the industrial hygiene program;
(c) When national consensus codes are not procedures, personnel responsibilities, and and
applicable (because of pressure range, vessel duty assignments to ensure overall policy (f) Use of respiratory protection equipment
geometry, use of special materials, etc.), objectives and performance criteria are being tested under the DOE Respirator Acceptance
contractors must implement measures to met by qualified personnel. Program for Supplied-air Suits (DOE-
provide equivalent protection and ensure a (e) Contractors must implement procedures Technical Standard-1167–2003) when
level of safety greater than or equal to the related to firearms training, live fire range National Institute for Occupational Safety
level of protection afforded by the ASME or safety, qualification, and evaluation and Health-approved respiratory protection
applicable state or local code. Measures must activities, including procedures requiring does not exist for DOE tasks that require such
include the following: that: equipment. For security operations
(1) Design drawings, sketches, and (1) Personnel must successfully complete conducted in accordance with Presidential
calculations must be reviewed and approved initial firearms safety training before being Decision Directive 39, U.S. POLICY ON
COUNTER TERRORISM, use of Department required by this rule and/or any other conditions that ensure their long-term
of Defense military type masks for respiratory applicable Federal, State or local regulation, preservation. Psychological records must be
protection by security personnel is or other obligation. maintained separately from medical records
acceptable. (b) The occupational medicine services and in the custody the designated
must be under the direction of a graduate of psychologist in accordance with 10 CFR
7. Biological Safety a school of medicine or osteopathy who is 712.38(b)(2).
(a) Contractors must establish and licensed for the practice of medicine in the (2) Access to these records must be
implement a biological safety program that: state in which the site is located. provided in accordance with DOE regulations
(1) Establishes an Institutional Biosafety (c) Occupational medical physicians, implementing the Privacy Act and the Energy
Committee (IBC) or equivalent. The IBC occupational health nurses, physician’s Employees Occupational Illness
must: assistants, nurse practitioners, psychologists, Compensation Program Act.
(i) Review any work with biological employee assistance counselors, and other (g) The occupational medicine services
etiologic agents for compliance with occupational health personnel providing provider must determine the content of the
applicable Centers for Disease Control and occupational medicine services must be worker health evaluations, which must be
Prevention (CDC), National Institutes of licensed, registered, or certified as required conducted under the direction of a licensed
Health (NIH), World Health Organization by Federal or State law where employed. physician, in accordance with current sound
(WHO), and other international, Federal, (d) Contractors must provide the and acceptable medical practices and all
State, and local guidelines and assess the occupational medicine providers access to pertinent statutory and regulatory
containment level, facilities, procedures, hazard information by promoting its requirements, such as the Americans with
practices, and training and expertise of communication, coordination, and sharing Disabilities Act.
personnel; and among operating and environment, safety, (1) Workers must be informed of the
(ii) Review the site’s security, safeguards, and health protection organizations. purpose and nature of the medical
and emergency management plans and (1) Contractors must provide the evaluations and tests offered by the
procedures to ensure they adequately occupational medicine providers with access occupational medicine provider.
consider work involving biological etiologic to information on the following: (i) The purpose, nature and results of
agents. (i) Current information about actual or evaluations and tests must be clearly
(2) Maintains an inventory and status of potential work-related site hazards (chemical, communicated verbally and in writing to
biological etiologic agents, and provide to the radiological, physical, biological, or each worker provided testing;
responsible field and area office, through the ergonomic); (ii) The communication must be
laboratory IBC (or its equivalent), an annual (ii) Employee job-task and hazard analysis documented in the worker’s medical record;
status report describing the status and information, including essential job and (2) The following health evaluations
inventory of biological etiologic agents and functions; must be conducted when determined
the biological safety program. (iii) Actual or potential work-site necessary by the occupational medicine
(3) Provides for submission to the exposures of each employee; and provider for the purpose of providing initial
appropriate Head of DOE Field Element, for (iv) Personnel actions resulting in a change and continuing assessment of employee
review and concurrence before transmittal to of job functions, hazards or exposures. fitness for duty.
the Centers for Disease Control and (2) Contractors must notify the (i) At the time of employment entrance or
Prevention (CDC), each Laboratory occupational medicine providers when an transfer to a job with new functions and
Registration/Select Agent Program employee has been absent because of an hazards, a medical placement evaluation of
registration application package requesting injury or illness for more than 5 consecutive the individual’s general health and physical
registration of a laboratory facility for the workdays (or an equivalent time period for and psychological capacity to perform work
purpose of transferring, receiving, or those individuals on an alternative work will establish a baseline record of physical
handling biological select agents. schedule); condition and assure fitness for duty.
(4) Provides for submission to the (3) Contractors must provide the (ii) Periodic, hazard-based medical
appropriate Head of DOE Field Element, a occupational medicine provider information monitoring or qualification-based fitness for
copy of each CDC Form EA–101, Transfer of on, and the opportunity to participate in, duty evaluations required by regulations and
Select Agents, upon initial submission of the worker safety and health team meetings and standards, or as recommended by the
Form EA–101 to a vendor or other supplier committees; occupational medicine services provider,
requesting or ordering a biological select (4) Contractors must provide occupational will be provided on the frequency required.
agent for transfer, receipt, and handling in medicine providers access to the workplace (iii) Diagnostic examinations will evaluate
the registered facility. Submit to the for evaluation of job conditions and issues employee’s injuries and illnesses to
appropriate Head of DOE Field Element the relating to workers’ health. determine work-relatedness, the applicability
completed copy of the Form EA–101, (e) A designated occupational medicine of medical restrictions, and referral for
documenting final disposition and/or provider must: definitive care, as appropriate.
destruction of the select agent, within 10 (1) Plan and implement the occupation (iv) After a work-related injury or illness or
days of completion of the Form EA–101. medicine services; and an absence due to any injury or illness lasting
(5) Confirms that the site safeguards and (2) Participate in worker protection teams 5 or more consecutive workdays (or an
security plans and emergency management to build and maintain necessary partnerships equivalent time period for those individuals
programs address biological etiologic agents, among workers, their representatives, on an alternative work schedule), a return to
with particular emphasis on biological select managers, and safety and health protection work evaluation will determine the
agents. specialists in establishing and maintaining a individual’s physical and psychological
(6) Establishes an immunization policy for safe and healthful workplace. capacity to perform work and return to duty.
personnel working with biological etiologic (f) A record, containing any medical, (v) At the time of separation from
agents based on the evaluation of risk and health history, exposure history, and employment, individuals shall be offered a
benefit of immunization. demographic data collected for the general health evaluation to establish a
(b) [Reserved] occupational medicine purposes, must be record of physical condition.
developed and maintained for each employee (h) The occupational medicine provider
8. Occupational Medicine for whom medical services are provided. All must monitor ill and injured workers to
(a) Contractors must establish and provide occupational medical records must be facilitate their rehabilitation and safe return
comprehensive occupational medicine maintained in accordance with Executive to work and to minimize lost time and its
services to workers employed at a covered Order 13335, Incentives for the Use of Health associated costs.
work place who: Information Technology. (1) The occupational medicine provider
(1) Work on a DOE site for more than 30 (1) Employee medical, psychological, and must place an individual under medical
days in a 12-month period; or employee assistance program (EAP) records restrictions when health evaluations indicate
(2) Are enrolled for any length of time in must be kept confidential, protected from that the worker should not perform certain
a medical or exposure monitoring program unauthorized access, and stored under job tasks. The occupational medicine
provider must notify the worker and (5) Uniform traffic and pedestrian control Propulsion, or otherwise excluded from the
contractor management when employee work devices and road signs; scope of the rule.
restrictions are imposed or removed. (6) On-site speed limits and other traffic (b) The DOE goal in the compliance arena
(i) Occupational medicine provider rules; is to enhance and protect the safety and
physician and medical staff must, on a timely (7) Awareness campaigns and incentive health of workers at DOE facilities by
basis, communicate results of health programs to encourage safe driving; and fostering a culture among both the DOE line
evaluations to management and safety and (8) Enforcement provisions. organizations and the contractors that
health protection specialists to facilitate the actively seeks to attain and sustain
mitigation of worksite hazards. 10. Electrical Safety compliance with the regulations in this part.
(j) The occupational medicine provider Contractors must implement a The enforcement program and policy have
must include measures to identify and comprehensive electrical safety program been developed with the express purpose of
manage the principal preventable causes of appropriate for the activities at their site. achieving safety inquisitiveness and
premature morbidity and mortality affecting This program must meet the applicable voluntary compliance. DOE will establish
worker health and productivity. electrical safety codes and standards effective administrative processes and
(1) The contractor must include programs referenced in § 851.23. positive incentives to the contractors for the
to prevent and manage these causes of open and prompt identification and reporting
11. Nanotechnology Safety—Reserved of noncompliances, performance of effective
morbidity when evaluations demonstrate
their cost effectiveness. The Department has chosen to reserve this root cause analysis, and initiation of
(2) Contractors must make available to the section since policy and procedures for comprehensive corrective actions to resolve
occupational medicine provider appropriate nanotechnology safety are currently being both noncompliance conditions and program
access to information from health, disability, developed. Once these policies and or process deficiencies that led to
and other insurance plans (de-identified as procedures have been approved, the rule will noncompliance.
necessary) in order to facilitate this process. be amended to include them through a (c) In the development of the DOE
(k) The occupational medicine services rulemaking consistent with the enforcement policy, DOE recognizes that the
provider must review and approve the Administrative Procedure Act. reasonable exercise of its enforcement
medical and behavioral aspects of employee authority can help to reduce the likelihood
12. Workplace Violence Prevention— of serious incidents. This can be
counseling and health promotional programs, Reserved accomplished by placing greater emphasis on
including the following types:
The Department has chosen to reserve this a culture of safety in existing DOE
(1) Contractor-sponsored or contractor-
section since the policy and procedures for operations, and strong incentives for
supported EAPs;
workplace violence prevention are currently contractors to identify and correct
being developed. Once these policies and noncompliance conditions and processes in
supported alcohol and other substance abuse
procedures have been approved, the rule will order to protect human health and the
rehabilitation programs; and
be amended to include them through a environment. DOE wants to facilitate,
rulemaking consistent with the encourage, and support contractor initiatives
supported wellness programs. Administrative Procedure Act. for the prompt identification and correction
(4) The occupational medicine services of noncompliances. DOE will give due
provider must review the medical aspects of Appendix B to Part 851—General consideration to such initiatives and
immunization programs, blood-borne Statement of Enforcement Policy activities in exercising its enforcement
pathogens programs, and bio-hazardous discretion.
waste programs to evaluate their I. Introduction
(d) DOE may modify or remit civil
conformance to applicable guidelines. (a) This policy statement sets forth the penalties in a manner consistent with the
(5) The occupational medicine services general framework through which the U.S. adjustment factors set forth in this policy
provider must develop and periodically Department of Energy (DOE) will seek to with or without conditions. DOE will
review medical emergency response ensure compliance with its worker safety and carefully consider the facts of each case of
procedures included in site emergency and health regulations, and, in particular, noncompliance and will exercise appropriate
disaster preparedness plans. The medical exercise the civil penalty authority provided discretion in taking any enforcement action.
emergency responses must be integrated with to DOE in section 3173 of Public Law 107– Part of the function of a sound enforcement
nearby community emergency and disaster 314, Bob Stump National Defense program is to assure a proper and continuing
plans. Authorization Act for Fiscal Year 2003 level of safety vigilance. The reasonable
(December 2, 2002) (‘‘NDAA’’), amending the exercise of enforcement authority will be
9. Motor Vehicle Safety Atomic Energy Act (AEA) to add section facilitated by the appropriate application of
(a) Contractors must implement a motor 234C. The policy set forth herein is safety requirements to DOE facilities and by
vehicle safety program to protect the safety applicable to violations of safety and health promoting and coordinating the proper
and health of all drivers and passengers in regulations in this part by DOE contractors, contractor and DOE safety compliance
Government-owned or -leased motor vehicles including DOE contractors who are attitude toward those requirements.
and powered industrial equipment (i.e., fork indemnified under the Price-Anderson Act,
trucks, tractors, platform lift trucks, and other 42 U.S.C. 2210(d), and their subcontractors II. Purpose
similar specialized equipment powered by an and suppliers (hereafter collectively referred The purpose of the DOE enforcement
electric motor or an internal combustion to as DOE contractors). This policy statement program is to promote and protect the safety
engine). is not a regulation and is intended only to and health of workers at DOE facilities by:
(b) The contractor must tailor the motor provide general guidance to those persons (a) Ensuring compliance by DOE
vehicle safety program to the individual DOE subject to the regulations in this part. It is not contractors with the regulations in this part.
site or facility, based on an analysis of the intended to establish a ‘‘cookbook’’ approach (b) Providing positive incentives for DOE
needs of that particular site or facility. to the initiation and resolution of situations contractors based on:
(c) The motor vehicle safety program must involving noncompliance with the (1) Timely self-identification of worker
address, as applicable to the contractor’s regulations in this part. Rather, DOE intends safety noncompliances;
operations: to consider the particular facts of each (2) Prompt and complete reporting of such
(1) Minimum licensing requirements noncompliance in determining whether noncompliances to DOE;
(including appropriate testing and medical enforcement sanctions are appropriate and, if (3) Prompt correction of safety
qualification) for personnel operating motor so, the appropriate magnitude of those noncompliances in a manner that precludes
vehicles and powered industrial equipment; sanctions. DOE may well deviate from this recurrence; and
(2) Requirements for the use of seat belts policy statement when appropriate in the (4) Identification of modifications in
and provision of other safety devices; circumstances of particular cases. This policy practices or facilities that can improve
(3) Training for specialty vehicle operators; statement is not applicable to activities and worker safety and health.
(4) Requirements for motor vehicle facilities covered under E.O. 12344, 42 U.S.C. (c) Deterring future violations of DOE
maintenance and inspection; 7158 note, pertaining to Naval Nuclear requirements by a DOE contractor.
(d) Encouraging the continuous overall but that the proposed civil penalty should be to safety or health, will not be the subject of
improvement of operations at DOE facilities. remitted in whole or in part; or (3) that the formal enforcement action through the
violation occurred as alleged in the PNOV issuance of a Notice of Violation.
III. Statutory Authority
and that the proposed civil penalty is
The Department of Energy Organization appropriate, notwithstanding the asserted VII. Enforcement Conferences
Act, 42 U.S.C. 7101–7385o, the Energy mitigating circumstances. In the latter two (a) The purpose of the enforcement
Reorganization Act of 1974 (ERA), 42 U.S.C. instances, the Director will issue a Final conference is to:
5801–5911, and the Atomic Energy Act of Notice of Violation (FNOV) or an FNOV and (1) Assure the accuracy of the facts upon
1954, as amended, (AEA) 42 U.S.C. 2011, proposed civil penalty. which the preliminary determination to
require DOE to protect the public safety and (c) An opportunity to challenge an FNOV consider enforcement action is based;
health, as well as the safety and health of is provided in administrative appeal (2) Discuss the potential or alleged
workers at DOE facilities, in conducting its provisions. See 10 CFR 851.44. Any violations, their significance and causes, and
activities, and grant DOE broad authority to contractor that receives an FNOV may the nature of and schedule for the DOE
achieve this goal. Section 234C of the AEA petition the Office of Hearings and Appeals contractor’s corrective actions;
makes DOE contractors (and their for review of the final notice in accordance (3) Determine whether there are any
subcontractors and suppliers thereto) covered with 10 CFR part 1003, Subpart G, within 30 aggravating or mitigating circumstances; and
by the DOE Price-Anderson indemnification calendar days from receipt of the final notice. (4) Obtain other information which will
system, subject to civil penalties for An administrative appeal proceeding is not help determine whether enforcement action
violations of the worker safety and health initiated until the DOE contractor against is appropriate and, if so, the extent of that
requirements promulgated in this part. 42 which an FNOV has been issued requests an enforcement action.
U.S.C. 2282c. administrative hearing rather than waiving (b) All enforcement conferences are
IV. Responsibilities its right to contest the FNOV and proposed convened at the discretion of the Director.
civil penalty, if any, and paying the civil (c) The PNOV will normally be issued
(a) The Director, as the principal penalty. However, it should be emphasized promptly, before the opportunity for an
enforcement officer of the DOE, has been that DOE encourages the voluntary resolution enforcement conference, following the
delegated the authority to:
of a noncompliance situation at any time, inspection/investigation. In some cases an
(1) Conduct enforcement inspections,
either informally prior to the initiation of the enforcement conference may be conducted
investigations, and conferences;
enforcement process or by consent order onsite at the conclusion of an inspection/
(2) Issue Notices of Violations and
before or after any formal proceeding has investigation.
proposed civil penalties, Enforcement
begun. (d) The contractor may request an
Letters, Consent Orders, and subpoenas; and
enforcement conference if they believe
(3) Issue orders to compel attendance and VI. Severity of Violations
additional information pertinent to the
disclosure of information or documents (a) Violations of the worker safety and enforcement action could best be conveyed
obtained during an investigation or health requirements in this part have varying through a meeting.
inspection. The Secretary issues Compliance degrees of safety and health significance.
Orders. (e) DOE contractors will be informed prior
Therefore, the relative safety and health risk to a meeting when that meeting is considered
(b) The NNSA Administrator, rather than
of each violation must be identified as the to be an enforcement conference. Such
the Director, signs, issues and serves the
first step in the enforcement process. conferences are informal mechanisms for
following actions that direct NNSA
Violations of the worker safety and health candid discussions regarding potential or
contractors:
requirements are categorized in two levels of alleged violations and will not normally be
(1) Subpoenas;
severity to identify their relative seriousness. open to the public. In circumstances for
(2) Orders to compel attendance; and
Notices of Violation issued for which immediate enforcement action is
(3) Determines to disclose information or
noncompliance when appropriate, propose necessary in the interest of worker safety and
documents obtained during an investigation
civil penalties commensurate with the health, such action will be taken prior to the
or inspection, PNOVs, Notices of Violations,
and Final Notices of Violations. The NNSA severity level of the violations involved. enforcement conference, which may still be
Administrator acts after consideration of the (b) To assess the potential safety and health held after the necessary DOE action has been
Director’s recommendation. impact of a particular violation, DOE will taken.
categorize the potential severity of violations
V. Procedural Framework of worker safety and health requirements as VIII. Enforcement Letter
(a) Title 10 CFR part 851 sets forth the follows: (a) In cases where DOE has decided not to
procedures DOE will use in exercising its (1) A Severity Level I violation is a serious conduct an investigation or inspection or
enforcement authority, including the violation. A serious violation shall be issue a Preliminary Notice of Violation
issuance of Notices of Violation and the deemed to exist in a place of employment if (PNOV), DOE may send an Enforcement
resolution of an administrative appeal in the there is a potential that death or serious Letter, signed by the Director to the
event a DOE contractor elects to petition the physical harm could result from a condition contractor. The Enforcement Letter is
Office of Hearings and Appeals for review. which exists, or from one or more practices, intended to communicate the basis of the
(b) Pursuant to 10 CFR part 851 subpart E, means, methods, operations, or processes decision not to pursue enforcement action for
the Director initiates the enforcement process which have been adopted or are in use, in a noncompliance. The Enforcement Letter is
by initiating and conducting investigations such place of employment. A Severity Level intended to direct contractors to the desired
and inspections and issuing a Preliminary I violation would be subject to a base civil level of worker safety and health
Notice of Violation (PNOV) with or without penalty of up to 100% of the maximum base performance. It may be used when DOE
a proposed civil penalty. The DOE contractor civil penalty of $70,000. concludes that the specific noncompliance at
is required to respond in writing to the PNOV (2) A Severity Level II violation is an other- issue is not of the level of significance
within 30 days, either: (1) Admitting the than-serious violation. An other-than-serious warranted to conduct an investigation or
violation and waiving its right to contest the violation occurs where the most serious inspection or for issuance of a PNOV. Even
proposed civil penalty and paying it; (2) injury or illness that would potentially result where a noncompliance may be significant,
admitting the violation but asserting the from a hazardous condition cannot the Enforcement Letter may recognize that
existence of mitigating circumstances that reasonably be predicted to cause death or the contractor’s actions may have attenuated
warrant either the total or partial remission serious physical harm to employees but does the need for enforcement action. The
of the civil penalty; or (3) denying that the have a direct relationship to their safety and Enforcement Letter will typically recognize
violation has occurred and providing the health. A Severity Level II violation would be how the contractor handled the
basis for its belief that the PNOV is incorrect. subject to a base civil penalty up to 50% of circumstances surrounding the
After evaluation of the DOE contractor’s the maximum base civil penalty ($35,000). noncompliance, address additional areas
response, the Director may determine: (1) (c) De minimis violations, defined as a requiring the contractor’s attention, and
That no violation has occurred; (2) that the deviation from the requirement of a standard address DOE’s expectations for corrective
violation occurred as alleged in the PNOV that has no direct or immediate relationship action.
(b) In general, Enforcement Letters issued for willful violations, or if past section, civil penalties will be proposed for
communicate DOE’s expectations with corrective actions for similar violations have Severity Level I and II violations.
respect to any aspect of the requirements of not been sufficient to prevent recurrence and (c) DOE will impose different base level
this part, including identification and there are no other mitigating circumstances. penalties considering the severity level of the
reporting of issues, corrective actions, and (c) DOE contractors are not ordinarily cited violation. Table A–1 shows the daily base
implementation of the contractor’s safety and for violations resulting from matters not civil penalties for the various categories of
health program. DOE might, for example, within their control, such as equipment severity levels. However, as described below
wish to recognize some action of the failures that were not avoidable by in section IX, paragraph b.3, the imposition
contractor that is of particular benefit to reasonable quality assurance measures, of civil penalties will also take into account
worker safety and health that is a candidate proper maintenance, or management the gravity, circumstances, and extent of the
for emulation by other contractors. On the controls. With regard to the issue of funding, violation or violations and, with respect to
other hand, DOE may wish to bring a however, DOE does not consider an asserted the violator, any history of prior similar
program shortcoming to the attention of the lack of funding to be a justification for violations and the degree of culpability and
contractor that, but for the lack of worker noncompliance with the worker safety and knowledge.
safety and health significance of the health requirements. (d) Enforcement personnel will use risk-
immediate issue, might have resulted in the (d) DOE expects its contractors to have the based criteria to assist the Director in
issuance of a PNOV. An Enforcement Letter proper management and supervisory systems determining appropriate civil penalties for
is not an enforcement action. in place to assure that all activities at covered violations found during investigations and
(c) With respect to many noncompliances, workplaces, regardless of who performs inspections.
an Enforcement Letter may not be required. them, are carried out in compliance with all (e) Regarding the factor of ability of DOE
When DOE decides that a contractor has the worker safety and health requirements. contractors to pay the civil penalties, it is not
appropriately corrected a noncompliance or Therefore, contractors are normally held DOE’s intention that the economic impact of
that the significance of the noncompliance is responsible for the acts of their employees a civil penalty be such that it puts a DOE
sufficiently low, it may close out its review and subcontractor employees in the conduct contractor out of business. Contract
simply through an annotation in the DOE of activities at covered workplaces. termination, rather than civil penalties, is
Noncompliance Tracking System (NTS). A Accordingly, this policy should not be used when the intent is to terminate these
closeout of a noncompliance with or without construed to excuse personnel errors. activities. The deterrent effect of civil
an Enforcement Letter may only take place (e) The limitations on remedies under penalties is best served when the amount of
after DOE has confirmed that corrective section 234C will be implemented as follows: such penalties takes this factor into account.
actions have been completed. (1) DOE may assess civil penalties of up to However, DOE will evaluate the relationship
$70,000 per violation per day on contractors of affiliated entities to the contractor (such as
IX. Enforcement Actions (and their subcontractors and suppliers) that parent corporations) when the contractor
(a) This section describes the enforcement are indemnified by the Price-Anderson Act, asserts that it cannot pay the proposed
sanctions available to DOE and specifies the 42 U.S.C. 2210(d). See 10 CFR 851.5(a). penalty.
conditions under which each may be used. (2) DOE may seek contract fee reductions (f) DOE will review each case on its own
The basic sanctions are Notices of Violation through the contract’s Conditional Payment merits and adjust the base civil penalty
and civil penalties. of Fee Clause in the Department of Energy values upward or downward. As indicated
(b) The nature and extent of the Acquisition Regulation (DEAR). See 10 CFR below, Table A–1 identifies the daily base
enforcement action is intended to reflect the 851.4(b); 48 CFR parts 923, 952, 970. Policies civil penalty values for different severity
seriousness of the violation. For the vast for contract fee reductions are not established levels. After considering all relevant
majority of violations for which DOE assigns by this policy statement. The Director and circumstances, civil penalties may be
severity levels as described previously, a appropriate contracting officers will adjusted up or down based on the mitigating
Notice of Violation will be issued, requiring coordinate their efforts in compliance with or aggravating factors described later in this
a formal response from the recipient the statute. See 10 CFR 851.5(b). section. In no instance will a civil penalty for
any one violation exceed the statutory limit
describing the nature of and schedule for (3) For the same violation of a worker
of $70,000 per day. In cases where the DOE
corrective actions it intends to take regarding safety and health requirement in this part,
contractor had knowledge of a violation and
the violation. DOE may pursue either civil penalties (for
has not reported it to DOE and taken
indemnified contractors and their
1. Notice of Violation corrective action despite an opportunity to
subcontractors and suppliers) or a contract
(a) A Notice of Violation (either a do so, DOE will consider utilizing its per day
fee reduction, but not both. See 10 CFR
Preliminary or Final Notice) is a document civil penalty authority. Further, as described
851.5(c).
setting forth the conclusion of DOE and the in this section, the duration of a violation
(4) A ceiling applies to civil penalties
basis to support the conclusion, that one or will be taken into account in adjusting the
assessed on certain contractors specifically
more violations of the worker safety and base civil penalty.
listed in 170d. of the Atomic Energy Act, 42
health requirements have occurred. Such a U.S.C. 2282a(d), for activities conducted at
notice normally requires the recipient to specified facilities. For these contractors, the TABLE A–1.—SEVERITY LEVEL BASE
provide a written response which may take total amount of civil penalties and contract CIVIL PENALTIES
one of several positions described in section penalties in a fiscal year may not exceed the
V of this policy statement. In the event that total amount of fees paid by DOE to that Base civil penalty
the recipient concedes the occurrence of the entity in that fiscal year. See 10 CFR 851.5(d). amount (Percent-
violation, it is required to describe corrective Severity level age of maximum
steps which have been taken and the results 2. Civil Penalty per violation per
achieved; remedial actions which will be (a) A civil penalty is a monetary penalty day)
taken to prevent recurrence; and the date by that may be imposed for violations of
I ......................................... 100
which full compliance will be achieved. requirements of this part. See 10 CFR
II ........................................ 50
(b) DOE will use the Notice of Violation as 851.5(a). Civil penalties are designed to
the standard method for formalizing the emphasize the need for lasting remedial
existence of a violation and, in appropriate action, deter future violations, and 3. Adjustment Factors
cases as described in this section, the Notice underscore the importance of DOE contractor (a) DOE may reduce a penalty based on
of Violation will be issued in conjunction self-identification, reporting, and correction mitigating circumstances or increase a
with the proposed imposition of a civil of violations of the worker safety and health penalty based on aggravating circumstances.
penalty. In certain limited instances, as requirements in this part. DOE’s enforcement program is not an end in
described in this section, DOE may refrain (b) Absent mitigating circumstances as itself, but a means to achieve compliance
from the issuance of an otherwise described below, or circumstances otherwise with the worker safety and health
appropriate Notice of Violation. However, a warranting the exercise of enforcement requirements in this part. Civil penalties are
Notice of Violation will virtually always be discretion by DOE as described in this intended to emphasize the importance of
compliance and to deter future violations. DOE will also consider the position, training the extent of DOE involvement in discovering
The single most important goal of the DOE and experience of those involved in the the violation or in prompting the contractor
enforcement program is to encourage early violation. Thus, for example, a violation may to identify the violation; and the promptness
identification and reporting of violations of be deemed to be more significant if a senior and completeness of any required report.
the worker safety and health requirements in manager of an organization is involved rather Self-identification is also considered by DOE
this part by the DOE contractors themselves than a foreman or non-supervisory employee. in deciding whether to pursue an
rather than by DOE, and the prompt (f) Other factors that will be considered in investigation.
correction of any violations so identified. determining the civil penalty amount are the (c) DOE will use the voluntary
DOE believes that DOE contractors are in the duration of the violation (how long the Noncompliance Tracking System (NTS)
best position to identify and promptly correct condition has presented a potential exposure which allows contractors to elect to report
noncompliance with the worker safety and to workers), the extent of the condition noncompliances. In the guidance document
health requirements in this part. DOE expects (number of instances of the violation), the supporting the NTS, DOE will establish
that these contractors should have in place frequency of the exposure (how often reporting thresholds for reporting
internal compliance programs which will workers are exposed), the proximity of the noncompliances of potentially greater worker
ensure the detection, reporting, and prompt workers to the exposure, and the past history safety and health significance into the NTS.
correction of conditions that may constitute, of similar violations. Contractors are expected, however, to use
or lead to, violations of the worker safety and (g) DOE expects contractors to provide full, their own self-tracking systems to track
health requirements in this part, before, complete, timely, and accurate information noncompliances below the reporting
rather than after, DOE has identified such and reports. Accordingly, the penalty amount threshold. This self-tracking is considered to
violations. Thus, DOE contractors should for a violation involving either a failure to be acceptable self-reporting as long as DOE
almost always be aware of worker safety and make a required report or notification to the has access to the contractor’s system and the
health noncompliances before they are DOE or an untimely report or notification, contractor’s system notes the item as a
discovered by DOE. Obviously, worker safety will be based upon the circumstances noncompliance with a DOE safety and health
and health is enhanced if noncompliances surrounding the matter that should have been requirement. For noncompliances that are
are discovered (and promptly corrected) by reported. A contractor will not normally be below the NTS reportability thresholds, DOE
the DOE contractor, rather than by DOE, cited for a failure to report a condition or will credit contractor self-tracking as
which may not otherwise become aware of a event unless the contractor was aware or representing self-reporting. If an item is not
noncompliance until later, during the course should have been aware of the condition or reported in NTS but only tracked in the
of an inspection, performance assessment, or event that it failed to report. contractor’s system and DOE subsequently
following an incident at the facility. Early determines that the noncompliance was
identification of worker safety and health- 4. Identification and Reporting significantly mischaracterized, DOE will not
related noncompliances by DOE contractors Reduction of up to 50% of the base civil credit the internal tracking as representing
has the added benefit of allowing information penalty shown in Table A–1 may be given appropriate self-reporting.
that could prevent such noncompliances at when a DOE contractor identifies the
other facilities in the DOE complex to be violation and promptly reports the violation 6. Self-Disclosing Events
shared with other appropriate DOE to the DOE. Consideration will be given to, (a) DOE expects contractors to demonstrate
contractors. among other things, the opportunity available acceptance of responsibility for worker safety
(b) Pursuant to this enforcement to discover the violation, the ease of and health by proactively identifying
philosophy, DOE will provide substantial discovery and the promptness and noncompliances. When the occurrence of an
incentive for the early self-identification, completeness of any required report. No event discloses noncompliances that the
reporting, and prompt correction of consideration will be given to a reduction in contractor could have or should have
conditions which constitute, or could lead to, penalty if the DOE contractor does not take identified before the event, DOE will not
violations of the worker safety and health prompt action to report the problem to DOE generally reduce civil penalties for self-
requirements. Thus, the civil penalty may be upon discovery, or if the immediate actions identification, even if the underlying
reduced for violations that are identified, necessary to restore compliance with the noncompliances were reported to DOE. In
reported, and promptly and effectively worker safety and health requirements are deciding whether to reduce any civil penalty
corrected by the DOE contractor. not taken. proposed for violations revealed by the
(c) On the other hand, ineffective programs occurrence of a self-disclosing event, DOE
for problem identification and correction are 5. Self-Identification and Tracking Systems will consider the ease with which a
aggravating circumstances and may increase (a) DOE strongly encourages contractors to contractor could have discovered the
the penalty amount. Thus, for example, self-identify noncompliances with the worker noncompliance and the prior opportunities
where a contractor fails to disclose and safety and health requirements before the that existed to discover the noncompliance.
promptly correct violations of which it was noncompliances lead to a string of similar If a contractor simply reacts to events that
aware or should have been aware, substantial and potentially more significant events or disclose potentially significant consequences
civil penalties are warranted and may be consequences. When a contractor identifies a or downplays noncompliances which did not
sought, including the assessment of civil noncompliance, DOE will normally allow a result in significant consequences to worker
penalties for continuing violations on a per reduction in the amount of civil penalties, safety and health, such contractor actions do
day basis. unless prior opportunities existed for not constitute the type of proactive behavior
(d) Further, in cases involving factors of contractors to identify the noncompliance. necessary to prevent significant events from
willfulness, repeated violations, death, DOE will normally not allow a reduction in occurring and thereby to improve worker
serious injury, patterns of systemic civil penalties for self-identification if safety and health.
violations, DOE-identified flagrant violations, significant DOE intervention was required to (b) The key test is whether the contractor
repeated poor performance in an area of induce the contractor to report a reasonably could have detected any of the
concern, or serious breakdown in noncompliance. underlying noncompliances that contributed
management controls, DOE intends to apply (b) Self-identification of a noncompliance to the event. Examples of events that provide
its full statutory enforcement authority where is possibly the single most important factor opportunities to identify noncompliances
such action is warranted. in considering a reduction in the civil include, but are not limited to:
(e) Additionally, adjustment to the amount penalty amount. Consideration of self- (1) Prior notifications of potential problems
of civil penalty will be dependent, in part, on identification is linked to, among other such as those from DOE operational
the degree of culpability of the DOE things, whether prior opportunities existed to experience publications or vendor equipment
contractor with regard to the violation. Thus, discover the violation, and if so, the age and deficiency reports;
inadvertent violations will be viewed number of such opportunities; the extent to (2) Normal surveillance, quality assurance
differently from those in which there is gross which proper contractor controls should performance assessments, and post-
negligence, deception, or willfulness. In have identified or prevented the violation; maintenance testing;
addition to the severity of the underlying whether discovery of the violation resulted (3) Readily observable parameter trends;
violation and level of culpability involved, from a contractor’s self-monitoring activity; and
(4) Contractor employee or DOE (1) The violation is promptly identified incomplete information or the failure to
observations of potential worker safety and and reported to DOE before DOE learns of it provide significant information identified by
health problems. or the violation is identified by a DOE a DOE contractor normally will be
(c) Failure to utilize these types of events independent assessment, inspection or other categorized based on the guidance in section
and activities to address noncompliances formal program effort. IX, ‘‘Enforcement Actions.’’
may result in higher civil penalty (2) The violation is not willful or is not a (b) DOE recognizes that oral information
assessments or a DOE decision not to reduce violation that could reasonably be expected may in some situations be inherently less
civil penalty amounts. to have been prevented by the DOE reliable than written submittals because of
(d) Alternatively, if, following a self- contractor’s corrective action for a previous the absence of an opportunity for reflection
disclosing event, DOE finds that the violation. and management review. However, DOE
contractor’s processes and procedures were (3) The DOE contractor, upon discovery of must be able to rely on oral communications
adequate and the contractor’s personnel the violation, has taken or begun to take from officials of DOE contractors concerning
generally behaved in a manner consistent prompt and appropriate action to correct the significant information. In determining
with the contractor’s processes and violation. whether to take enforcement action for an
procedures, DOE could conclude that the (4) The DOE contractor has taken, or has oral statement, consideration will be given to
contractor could not have been reasonably agreed to take, remedial action satisfactory to such factors as:
expected to find the single noncompliance DOE to preclude recurrence of the violation (1) The degree of knowledge that the
that led to the event and thus, might allow and the underlying conditions that caused it. communicator should have had regarding the
a reduction in civil penalties. (b) DOE will not issue a Notice of Violation matter in view of his or her position, training,
for cases in which the violation discovered and experience;
7. Corrective Action To Prevent Recurrence
by the DOE contractor cannot reasonably be (2) The opportunity and time available
The promptness (or lack thereof) and linked to the conduct of that contractor in the prior to the communication to assure the
extent to which the DOE contractor takes design, construction or operation of the DOE accuracy or completeness of the information;
corrective action, including actions to facility involved, provided that prompt and (3) The degree of intent or negligence, if
identify root cause and prevent recurrence, appropriate action is taken by the DOE any, involved;
may result in an increase or decrease in the contractor upon identification of the past (4) The formality of the communication;
base civil penalty shown in Table A–1. For violation to report to DOE and remedy the (5) The reasonableness of DOE reliance on
example, appropriate corrective action may problem. the information;
result in DOE’s reducing the proposed civil (c) In situations where corrective actions (6) The importance of the information that
penalty up to 50% from the base value have been completed before termination of was wrong or not provided; and
shown in Table A–1. On the other hand, the an inspection or assessment, a formal (7) The reasonableness of the explanation
civil penalty may be increased if initiation of response from the contractor is not required for not providing complete and accurate
corrective action is not prompt or if the and the inspection report serves to document information.
corrective action is only minimally the violation and the corrective action. (c) Absent gross negligence or willfulness,
acceptable. In weighing this factor, an incomplete or inaccurate oral statement
However, in all instances, the contractor is
consideration will be given to, among other normally will not be subject to enforcement
required to report the noncompliance
things, the appropriateness, timeliness and action unless it involves significant
through established reporting mechanisms so
degree of initiative associated with the information provided by an official of a DOE
the noncompliance and any corrective
corrective action. The comprehensiveness of contractor. However, enforcement action may
actions can be properly tracked and
the corrective action will also be considered, be taken for an unintentionally incomplete or
monitored.
taking into account factors such as whether inaccurate oral statement provided to DOE by
(d) If DOE initiates an enforcement action
the action is focused narrowly to the specific an official of a DOE contractor or others on
for a violation, and as part of the corrective
violation or broadly to the general area of behalf of the DOE contractor, if a record was
action for that violation, the DOE contractor
concern. made of the oral information and provided to
identifies other examples of the violation
8. DOE’s Contribution to a Violation with the same root cause, DOE may refrain the DOE contractor thereby permitting an
There may be circumstances in which a from initiating an additional enforcement opportunity to correct the oral information,
violation of a DOE worker safety and health action. In determining whether to exercise such as if a transcript of the communication
requirement results, in part or entirely, from this discretion, DOE will consider whether or meeting summary containing the error was
a direction given by DOE personnel to a DOE the DOE contractor acted reasonably and in made available to the DOE contractor and
contractor to either take or forbear from a timely manner appropriate to the severity was not subsequently corrected in a timely
taking an action at a DOE facility. In such of the initial violation, the manner.
cases, DOE may refrain from issuing an NOV, comprehensiveness of the corrective action, (d) When a DOE contractor has corrected
or may mitigate, either partially or entirely, whether the matter was reported, and inaccurate or incomplete information, the
any proposed civil penalty, provided that the whether the additional violation(s) decision to issue a citation for the initial
direction upon which the DOE contractor substantially change the significance or inaccurate or incomplete information
relied is documented in writing, character of the concern arising out of the normally will be dependent on the
contemporaneously with the direction. It initial violation. circumstances, including the ease of
should be emphasized, however, that (e) The preceding paragraphs are examples detection of the error, the timeliness of the
pursuant to 10 CFR 851.7, interpretative indicating when enforcement discretion may correction, whether DOE or the DOE
ruling of a requirement of this part must be be exercised to forego the issuance of a civil contractor identified the problem with the
issued in accordance with the provisions of penalty or, in some cases, the initiation of communication, and whether DOE relied on
851.7 to be binding. Further, as discussed any enforcement action at all. However, the information prior to the correction.
above in this policy statement, lack of notwithstanding these examples, a civil Generally, if the matter was promptly
funding by itself will not be considered as a penalty may be proposed or Notice of identified and corrected by the DOE
mitigating factor in enforcement actions. Violation issued when, in DOE’s judgment, contractor prior to reliance by DOE, or before
such action is warranted. DOE raised a question about the information,
9. Exercise of Discretion no enforcement action will be taken for the
Because DOE wants to encourage and X. Inaccurate and Incomplete Information initial inaccurate or incomplete information.
support DOE contractor initiative for prompt (a) A violation of the worker safety and On the other hand, if the misinformation is
self-identification, reporting and correction health requirements to provide complete and identified after DOE relies on it, or after some
of noncompliances, DOE may exercise accurate information to DOE, 10 CFR 851.40, question is raised regarding the accuracy of
discretion as follows: can result in the full range of enforcement the information, then some enforcement
(a) In accordance with the previous sanctions, depending upon the circumstances action normally will be taken even if it is in
discussion, DOE may refrain from issuing a of the particular case and consideration of fact corrected.
civil penalty for a violation that meets all of the factors discussed in this section. (e) If the initial submission was accurate
the following criteria: Violations involving inaccurate or when made but later turns out to be
erroneous because of newly discovered contractor does not identify as significant submission may be treated as a more severe
information or advances in technology, a normally will not constitute a separate matter if a DOE contractor later determines
citation normally would not be appropriate violation. However, the circumstances that the initial submission was in error and
if, when the new information became surrounding the failure to correct may be does not promptly correct it or if there were
available, the initial submission was considered relevant to the determination of clear opportunities to identify the error.
promptly corrected. enforcement action for the initial inaccurate
(f) The failure to correct inaccurate or or incomplete statement. For example, an [FR Doc. 06–964 Filed 2–8–06; 8:45 am]
incomplete information that the DOE unintentionally inaccurate or incomplete BILLING CODE 6450–01–P

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1. Objective ............................................................................................... .1 Purpose

Attachment 2—Contractor Requirements Document

PART 850—Chronic Beryllium Disease Prevention Program

Authority .................................................................................................... Notice of Proposed Rulemaking December 8, 2003, N/A.

PART 851—Worker Safety and Health Program

Subpart A—General Provisions Subpart A—General Provisions

851.1 Scope and purpose ...................................................................... 851.1 Scope and exclusions.

851.3 Definitions .................................................................................... 851.3 Definitions.

Subpart B—Program Requirements Subpart A—General Provisions

851.10 General requirements ................................................................ 851.4 General rule.

Subpart C—Specific Program Requirements Subpart A—General Provisions

Subpart D—Variances Subpart D—Exemption Relief

851.30 Consideration of variances ........................................................ 851.300 Exemptions.

Subpart E—Enforcement Process Subpart E—Enforcement Process

851.40 Investigations and inspections ................................................... 851.400 Investigations and inspections.

A.1 Construction safety .......................................................................... 851.202 Construction safety.

APPENDIX B TO PART 851—GENERAL STATEMENT OF APPENDIX A TO PART 851—GENERAL STATEMENT OF

of any civil penalty; and the variance process established in provision.

believes the settlement process is proposed remedies and civil penalties,

1 ........................ Robert Burger, CEM.

5 ........................ Waste Isolation Pilot Plant.

12 ...................... Geoffrey Gorsuch.

involved to create a new facility or to contractor in furtherance of a DOE includes:

Variance means an exception to section for the same violation of a circumstances.

(ACGIH), ‘‘Threshold Limit Values for healthful manner.

information on the availability of this (vi) B31.8—2003—Gas Transmission necessary information.

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