[Federal Register Volume 68, Number 235 (Monday, December 8, 2003)]
[Proposed Rules]
[Pages 68276-68299]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-30287]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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 

  Federal Register / Vol. 68, No. 235 / Monday, December 8, 2003 / 
Proposed Rules  

[[Page 68276]]



DEPARTMENT OF ENERGY

10 CFR Parts 850 and 851

[Docket No. EH-RM-03-WSH]
RIN 1901-AA99


Chronic Beryllium Disease Prevention Programs; Worker Safety and 
Health

AGENCY: Department of Energy.

ACTION: Proposed rulemaking and opportunity for public comment.

-----------------------------------------------------------------------

SUMMARY: Pursuant to section 3173 of the Bob Stump National Defense 
Authorization Act for Fiscal Year 2003 (NDAA), DOE is proposing 
regulations for worker safety and health at Department of Energy (DOE) 
workplaces. These proposed regulations are intended to maintain the 
high level of protection currently afforded workers throughout the DOE 
complex.

DATES: The comment period for this proposed rule will end on February 
6, 2004. The public hearings for this rulemaking will be held on: 
January 21, 2004 in Arlington, VA (Washington, DC) from 9 a.m. to 12 
p.m. and from 1:30 p.m. to 5 p.m.; and February 4, 2004 in Golden CO 
(Denver) from 9 a.m. to 1 p.m., and from 4 p.m. to 8 p.m. Requests to 
speak at any of the hearings should be phoned in to Jacqueline D. 
Rogers, 301-903-5684, by January 20, 2004, for the Arlington, VA 
(Washington, DC) hearing; and February 2, 2004, for the Golden, CO 
(Denver) hearing. Each presentation is limited to 10 minutes.

ADDRESSES: Written comments (three copies) on the proposed rule should 
be addressed to: Jacqueline D. Rogers, U.S. Department of Energy, 
Docket Number EH-RM-03-WSH; EH-52/270 Corporate Square Building; 1000 
Independence Avenue SW, Washington, DC 20585-0270. Alternatively, 
comments can be filed electronically by e-mail to: 
[email protected] noting ``Worker Safety and Health Rule 
Comments'' in the subject line. Where possible, commenters should 
identify the specific section to which they are responding.
    Copies of the public hearing transcripts, written comments 
received, and any other docket material may be reviewed on the Web site 
specially established for this proceeding. The Internet Web site is 
http://www.eh.doe.gov/whs/rulemaking.
    The public hearings for this rulemaking will be held at the 
following addresses:
    Arlington, VA (Washington, DC): Marriott Crystal City Hotel, 1999 
Jefferson Davis Highway, Arlington, VA 22202.
    Golden, CO (Denver): DOE National Renewable Energy Laboratory, 
Visitor Center, Auditorium, 15013 Denver West Parkway, Golden, CO 80401 
(I-70, Exit 263, right at top of exit ramp if coming from Denver, left 
at stop sign, building on right).
    For more information concerning public participation in this 
rulemaking proceeding, see section IV of this notice of proposed 
rulemaking (Public Comment Procedures).

FOR FURTHER INFORMATION CONTACT: Jacqueline D. Rogers, U.S. Department 
of Energy, 1000 Independence Avenue SW., Washington, DC 20585-0270, 
301-903-5684, e-mail: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Introduction
II. Proposed Regulations
III. Procedural Review Requirements
    A. Review under Executive Order 12866
    B. Review under Executive Order 12988
    C. Review under Executive Order 13132
    D. Review under Executive Order 13175
    E. Review under the Regulatory Flexibility Act
    F. Review under the Paperwork Reduction Act
    G. Review under the National Environmental Policy Act
    H. Review under the Unfunded Mandates Reform Act
    I. Review under Executive Order 13211
    J. Review under the Treasury and General Government 
Appropriations Act, 1999
    K. Review under the Treasury and General Government 
Appropriations Act, 2001
IV. Public Comment Procedures
    A. Written Comments
    B. Public Hearing

I. Introduction

    DOE has broad authority to regulate worker safety and health with 
respect to its nuclear and nonnuclear functions pursuant to the Atomic 
Energy Act of 1954 (AEA), 42 U.S.C. 2011 et seq., the Energy 
Reorganization Act of 1974 (ERA), 42 U.S.C. 5801-5911, and the 
Department of Energy Organization Act (DOEOA), 42 U.S.C. 7101-7352. 
Specifically, the AEA authorized and directed the Atomic Energy 
Commission (AEC) to protect health and promote safety during the 
performance of activities under the AEA. See Sec. 31a.(5) of AEA, 42 
U.S.C. 2051(a)(5); Sec. 161b. of AEA, 42 U.S.C 2201(b); Sec. 161i.(3) 
of AEA, 42 U.S.C. 2201(i)(3); and Sec. 161p. of AEA, 42 U.S.C. 2201(p). 
The ERA abolished the AEC and replaced it with the Nuclear Regulatory 
Commission (NRC), which became responsible for the licensing of 
commercial nuclear activities, and the Energy Research and Development 
Administration (ERDA), which became responsible for the other functions 
of the AEC under the AEA, as well as several nonnuclear functions. The 
ERA authorized ERDA to use the regulatory authority under the AEA to 
carry out its nuclear and nonnuclear function, including those 
functions that might become vested in ERDA in the future. See Sec. 
105(a) of ERA, 42 U.S.C. 5815(a); and Sec. 107 of ERA, 42 U.S.C. 5817. 
The DOEOA transferred the functions and authorities of ERDA to DOE. See 
Sec. 301(a) of DOEOA, 42 U.S.C. 7151(a); Sec. 641 of DOEOA, 42 U.S.C. 
7251; Sec. 644 of DOEOA, 42 U.S.C. 7254.
    DOE (like its predecessors, the AEC and the ERDA) has implemented 
this authority in a comprehensive manner by incorporating appropriate 
provisions on worker safety and health into the contracts under which 
work is performed at DOE workplaces. During the past decade, DOE has 
taken steps to ensure that contractual provisions on worker safety and 
health are tailored to reflect particular workplace environments. In 
particular, the Integration of Environment, Health and Safety into Work 
Planning and Execution clause set forth in the DOE procurement 
regulations requires DOE contractors to establish an integrated safety 
management system. 48 CFR 952.223-71 and 970.5223-1. As part of this 
process, a contractor must define the work to be performed, analyze the 
potential hazards associated with the work, and identify a set of 
standards and controls that are sufficient to ensure safety and health 
if implemented properly. The identified standards and controls are 
incorporated as contractual

[[Page 68277]]

requirements through the Laws, Regulations and DOE Directives clause 
set forth in the DOE procurement regulations. 48 CFR 970.0470-2 and 
970.5204-2. Following the enactment of the Price-Anderson Amendments 
Act of 1988, Pub. L. 100-408, granting the Department the authority to 
impose civil penalties for nuclear safety violations on contractors 
with Price-Anderson indemnification agreements, DOE supplemented its 
contractual based regulatory approach with a further more specific set 
of rules set forth in 10 CFR parts 820, 830, and 835 to ensure nuclear 
safety and protection from radiological hazards during the conduct of 
DOE activities.
    In 2002, Congress directed DOE to promulgate regulations on worker 
safety and health governing contractors with Price-Anderson 
indemnification agreements rather than rely exclusively on a 
contractual approach to establish safe and healthy workplaces. 
Specifically, section 3173 of the NDAA amended the AEA to add section 
234C (codified as 42 U.S.C. 2282c) that requires DOE to promulgate 
worker safety and health regulations that maintain ``the level of 
protection currently provided to * * * workers.'' Pub. L. 107-314 
(December 2, 2002). These regulations are to include ``flexibility * * 
* to tailor implementation * * * to reflect activities and hazards 
associated with a particular work environment.'' Section 234C also 
makes a DOE contractor with such an indemnification agreement that 
violates these regulations subject to civil penalties similar to the 
authority Congress granted to DOE in 1988 with respect to civil 
penalties. Section 234C also directed DOE to insert in such contracts a 
clause providing for reducing contractor fees and other payments in the 
event of a violation by a contractor or contractor employee of any 
regulation promulgated under section 234C while specifying that both 
sanctions may not be used for the same violation. The Secretary of 
Energy has approved the issuance of this Notice to propose regulations 
to implement the statutory mandate of the NDAA.

II. Proposed Regulations

A. Summary

    The proposed regulation would set forth the obligations of DOE 
contractors (which, consistent with section 234C, proposed Sec.  851.3 
would define as entities under contract with DOE, including affiliated 
entities, subcontractors and suppliers) to provide safe and healthy 
workplaces for workers (which, consistent with section 234C, proposed 
Sec.  851.3 would define as employees who perform work in a workplace 
covered by the proposed regulations). In particular, the proposed 
regulations would require a contractor responsible for a DOE workplace 
to ensure: (1) that the workplace is free from recognized hazards that 
are causing or are likely to cause death or serious bodily harm; and 
(2) that work is performed in accordance with the worker safety and 
health program for the workplace. Consistent with section 234C, the 
worker safety and health program must be approved by DOE and must 
achieve a level of protection at least substantially equivalent to the 
level of protection that existed in workplaces throughout the DOE 
complex in the year 2002 (i.e., the year of enactment of section 3173 
of the NDAA) that are comparable to the workplaces to which the program 
would apply. When the regulations become effective, no work could be 
performed at a workplace for which DOE had not approved a worker safety 
and health program. Consistent with section 234C, DOE approval would be 
based on a determination that the program would achieve the required 
level of protection.
    A contractor would develop and maintain a single worker safety and 
health program for all the workplaces at a DOE site for which the 
contractor is responsible and would coordinate with any other DOE 
contractors responsible for other workplaces at the site to ensure an 
integrated and consistent approach to worker safety and health at the 
site. A contractor would discharge its duties concerning the worker 
safety and health program in a manner consistent with the integrated 
safety management process set forth in the clauses, Integration of 
Environment, Health and Safety into Work Planning and Execution. 48 CFR 
952.223-71, 970.5223-1. First, the contractor would identify and 
analyze the workplace environment, the work activities performed there, 
and the potential hazards to workers. On the basis of this 
identification and analysis, the contractor would select and document a 
set of workplace safety and health standards that are necessary and 
sufficient to protect workers from the identified hazards in a manner 
that achieves a level of protection substantially equivalent to the 
level of protection that existed in comparable DOE workplaces in 2002.
    A contractor should select the combination of appropriate standards 
that it believes is best designed to achieve the required level of 
protection in a manner consistent with the Departmental mission it is 
performing. DOE has included an appendix to the proposed regulations 
that sets forth a description of worker safety standards and programs 
generally acceptable for inclusion in a worker safety and health 
program. This appendix is based on DOE Order 440.1A, which sets forth 
DOE expectations concerning worker protection and which has been 
incorporated into most DOE contracts through inclusion of the order's 
Contractor Requirements Document. This appendix is included only to 
provide generally acceptable worker safety and health standards and 
programs and is not intended to prescribe particular standards and 
programs. The contractor would implement the worker safety and health 
program for a particular workplace in a manner tailored to fit the 
particular work environment of that workplace. Radiological hazards 
would not be covered by the proposed rule to the extent they are 
regulated by the existing requirements on nuclear safety and 
radiological protection set forth in 10 CFR parts 820, 830, and 835.
    DOE intends to work with its contractors to achieve compliance with 
the regulations and maintain the high level of protection currently 
afforded workers. Once the proposed regulations are finalized, if a 
contractor violated them, DOE could take appropriate enforcement action 
against the contractor, including, in the case of contractors with 
indemnification agreements, the imposition of civil penalties or the 
reduction of contract fees.
    With respect to a covered workplace operated by DOE, the proposed 
regulations would make DOE responsible for ensuring work is performed 
consistent with the requirements of the proposed regulations, including 
the establishment, maintenance and implementation of a worker safety 
and health program.

B. Level of Protection

    Section 234C mandates the promulgation by DOE of worker safety and 
health regulations that provide a level of protection substantially 
equivalent to that provided to DOE contractor workers when the NDAA was 
enacted. By focusing on level of protection, section 234C envisions 
regulations that emphasize results (that is, maintaining or improving 
the level of protection afforded DOE contractor workers), rather than 
prescribing detailed courses of action that may not be the most 
effective or sensible way of addressing a given hazard in a particular 
situation.

[[Page 68278]]

    The proposed regulations would incorporate the statutorily mandated 
level of protection as follows. First, proposed Sec.  851.100 would 
establish the general rule that a DOE contractor responsible for a 
workplace must ensure: (1) The workplace is free from recognized 
hazards that are causing or are likely to cause death or serious bodily 
harm; and (2) work is performed in accordance with the worker safety 
and health program for the workplace. This general rule codifies DOE's 
current expectations concerning the level of protection DOE contractors 
must afford workers, as set forth in DOE Order 440.1A. Second, proposed 
Sec.  851.101(c)(2) would require a worker safety and health program to 
include a set of workplace safety and health standards that would 
achieve a level of protection at least substantially equivalent to the 
level of protection that existed in the DOE complex in workplaces 
comparable to the workplaces to which the program would apply. Third, 
proposed Sec.  851.102 would prohibit the performance of work at a 
workplace one year after publication of the final rule unless DOE had 
approved the worker safety and health program for the workplace on the 
basis of a determination that the worker safety and health program 
would achieve a level of protection at least substantially equivalent 
to the level of protection that existed in comparable workplaces in 
2002.

C. Flexibility

    Section 234C mandates DOE to promulgate worker safety and health 
regulations that include sufficient ``flexibility--(A) to tailor 
implementation of such regulations to reflect activities and hazards 
associated with the particular work environment; (B) to take into 
account special circumstances at a facility that is, or is expected to 
be, permanently closed and that is expected to be demolished, or title 
to which is expected to be transferred to another entity for reuse; 
and, (C) to achieve national security missions of the Department of 
Energy in an efficient and timely manner.'' This provision acknowledges 
the diversity and uniqueness of the DOE complex and the need to tailor 
worker safety and health programs to fit particular workplaces.
    As a general matter, the proposed regulations would achieve the 
mandated flexibility by building on the practices and procedures 
already being undertaken by contractors as part of integrated safety 
management systems. Specifically, proposed Sec.  851.101(c) would 
incorporate the essential features of integrated safety management, 
including: (1) Defining the work; (2) analyzing the hazards; (3) 
identifying a set of standards necessary and sufficient to control the 
hazards; (4) implementing the set of standards properly in a manner 
tailored to reflect the workplace environment; and (5) providing for 
continuous feedback and improvement. Adherence to this approach should 
result in the selection of a set of standards tailored to fit the 
expected work and hazards and the implementation of those standards in 
a manner tailored to reflect actual workplace conditions.
    The proposed regulations also would include specific provisions to 
address the statutory requirements on flexibility. Proposed Sec.  
851.101(a)(2) would require the tailoring of a worker safety and health 
program to reflect the activities and hazards in a particular 
workplace. Proposed Sec.  851.101(c)(4) would require a worker safety 
and health program to provide for tailored implementation of selected 
standards. Proposed Sec.  851.101(e) would require a worker safety and 
health program to contain special provisions for transitional 
workplaces (which would be defined in proposed Sec.  851.3 as 
facilities that are, or are expected to be, permanently closed and that 
are expected to be demolished, or title to which are expected to be 
transferred to another entity for reuse) and national security 
workplaces (which would be defined as workplaces where DOE undertakes 
national security missions). Examples of transitional workplaces could 
include: those sites that are undergoing decontamination, deactivation, 
dismantlement, or decommissioning; environmental restoration sites; or 
inactive sites where no ongoing operations are being performed beyond 
surveillance and maintenance activities.

D. Consistency With Integrated Safety Management

    Proposed Sec.  851.101(a) would require contractors to develop 
worker safety and health programs. These programs should be established 
in a manner that is consistent with the Integration of Environment, 
Health and Safety into Work Planning and Execution clause set forth in 
the DOE procurement regulations. 48 CFR 952.223-71, 970.5223-1. As 
discussed in the preceding sections, the proposed regulations build on 
existing contract practices and processes to achieve safe and healthy 
workplaces and incorporate the essential features of integrated safety 
management. DOE has drafted the proposed regulations to be 
complementary to integrated safety management. Accordingly, DOE expects 
contractors to comply with the proposed regulations in a manner that 
takes advantage of work already done as part of integrated safety 
management and to minimize duplicative or otherwise unnecessary work.
    As a general matter, DOE expects that, if contractors at a DOE site 
have fulfilled their contractual responsibilities for integrated safety 
management properly, little, if any, additional work would be necessary 
to establish the worker safety and health program required by the 
proposed regulations. Contractors should undertake new analysis and 
develop new documents only to the extent existing analysis and 
documents are not sufficient for purposes of the proposed regulations. 
In determining the allowability of costs incurred by contractors to 
develop approved worker safety and health programs, the Department will 
consider whether the amount and nature of a contractor's expenditures 
are necessary and reasonable in light of the fact that the contractor 
has an approved integrated safety management system in place.

E. Worker Safety and Health Program

1. Program
    To ensure achievement of the required level of protection, proposed 
Sec.  851.100(b) would require the contractor responsible for a 
workplace to perform work in accordance with an approved worker safety 
and health program for the workplace. Proposed Sec.  851.101(b)(1) 
would require the worker safety and health program to provide for 
eliminating, limiting or mitigating identified workplace hazards in a 
manner that is necessary and sufficient to provide adequate protection 
of workers.
    Proposed Sec. Sec.  851.101(a) and (d)(1) would require a 
contractor to prepare and maintain a single worker safety and health 
program that would apply to all the workplaces at a DOE site for which 
the contractor was responsible. At a site where there were multiple 
contractors responsible for various workplaces at the site, proposed 
Sec.  851.101(d)(2)(B) would require the contractors responsible for 
covered workplaces at the site to coordinate with each other to ensure 
that the worker safety and health programs at the site were integrated 
and consistent.
2. Identification and Analysis of Work and Hazards
    As part of the process of developing a worker safety and health 
program, proposed Sec.  851.101(c)(1) would require a contractor to 
identify and analyze: (1)

[[Page 68279]]

The work to be performed; (2) the work environment including designs 
and features of facilities, equipment, operations and procedures 
important to a safe and healthful workplace; (3) existing and potential 
workplace hazards; and (4) the risk of worker injury or illness 
associated with the identified workplace hazards. Proposed Sec.  851.3 
would define ``workplace hazard'' to mean ``a physical, chemical, or 
biological hazard with any potential to cause illness, injury, or death 
to a person.''
    Proposed Sec.  851.101(c)(1) would require a contractor to identify 
and analyze the work and the hazards at the site, facility, activity 
and workplace level as appropriate. The proposed regulations do not 
contemplate that a contractor would need to conduct a comprehensive 
examination of every workplace for which the contractor is responsible 
at a site in preparing the worker safety and health program. Rather, a 
contractor would address those hazards that are common to an entire 
site on a site-wide basis such as fire protection. Then, to the extent 
appropriate, a contractor would address the hazards associated with 
particular facilities or activities on a facility or activity basis. 
Finally, where a particular workplace presented unique circumstances 
that might require special attention, a contractor would examine that 
workplace. In analyzing hazards, a contractor would focus on 
identifying all the hazards that need to be addressed in the worker 
safety and health plan rather than producing a quantitative risk 
analysis.
    In addition, proposed Sec.  851.101(c)(4)(C) would require the 
contractor to describe in sufficient detail the extent to which the 
program is integrated on a site, facility, activity and workplace 
level, taking into account differences and similarities between the 
work, hazards, and workplace safety and health standards. An important 
part of this description would be the extent of the initial 
identification and analysis and how further identification and analysis 
would be conducted in particular workplaces to ensure the flow down of 
the selected standards and their proper implementation in a manner 
tailored to fit particular workplace environments. This description 
also would address coordination among worker safety and health programs 
at a site with multiple programs. The guidance documents prepared for 
integrated safety management systems contain thorough discussions on 
identifying and analyzing work and hazards. See, e.g., Integrated 
Safety Management System Guide, DOE Guide 450.4-1B (Mar. 1, 2001).
3. Selection of Set of Workplace Safety and Health Standards
    Central to the worker safety and health program for a workplace is 
the development of a set of ``workplace safety and health standards'' 
that provide a level of protection at least substantially equivalent to 
the level of protection that existed in comparable DOE workplaces in 
2002. Proposed Sec.  851.3 would define a ``workplace safety and health 
standard'' to mean ``a standard or program which addresses a covered 
workplace hazard by requiring conditions, or the adoption or use of one 
or more practices, means, methods, operations, or processes, reasonably 
necessary or appropriate to provide a safe and healthful covered 
workplace.'' With the exception of the beryllium standard established 
by 10 CFR part 850, which contractors must continue to comply with, 
proposed Sec.  851.101(c)(2) and (3) would permit a contractor to 
select any combination of appropriate workplace safety and health 
standards that would achieve the required level of protection.
    Appendix A to the proposed regulations contains a description of 
workplace safety and health standards and programs generally acceptable 
for inclusion in a worker safety and health program. DOE has derived 
Appendix A from existing DOE Order 440.1A, which sets forth DOE's 
expectations for protecting worker safety and health and identifies a 
number of generally acceptable worker protection standards and 
programs, including: (1) Certain Occupational Health and Safety 
Administration (OSHA) standards (29 CFR part 1910); shipyard employment 
(29 CFR part 1915); marine terminals (29 CFR part 1917); health and 
safety regulations for longshoring (29 CFR part 1918); health and 
safety regulations for construction (29 CFR part 1926); and 
occupational health and safety standards for agriculture (29 CFR part 
1928); (2) American Conference of Governmental Industrial Hygienists' 
threshold limit values for exposures to chemical substances, physical 
agents and biological substances where they are more protective than 
the OSHA standards; (3) certain American National Standards Institute 
(ANSI) standards (ANSI Z136.1 Safe Use of Lasers; ANSI Z88.2 Practices 
for Respiratory Protection; ANSI Z49.1 Safety in Welding, Cutting and 
Allied Processes); (4) the National Fire Protection Association's 
standards for fire protection and electrical safety; (5) the American 
Society for Mechanical Engineer's standards for boiler and pressure 
safety; and (6) programs in areas such as firearms safety, explosives 
safety, industrial hygiene, occupational medicine, and motor vehicle 
safety.
    Appendix A would serve as a guidance document. With the exception 
of the beryllium standard, the proposed regulations do not mandate the 
selection of any particular standard or program, including those 
described in Appendix A. Rather, the proposed regulations obligate a 
contractor to focus on the objective of safe and healthy workplaces and 
to select a set of standards and programs that will achieve a level of 
protection at least substantially equivalent to the level of protection 
that existed in comparable DOE workplaces in 2002. DOE would be 
responsible for reviewing the set of standards and programs that a 
contractor proposed to select as part of the approval of the 
contractor's worker safety and health program and for assuring itself 
those standards and programs would meet that level of protection.
    Proposed Sec.  851.101(c)(3)(A) would require the incorporation of 
chronic beryllium disease prevention programs approved under 10 CFR 
part 850 into the set of workplace safety and health standards. DOE is 
proposing several technical and conforming amendments to the current 
beryllium regulations in part 850 which would align that part with the 
proposed worker safety and health regulations. The scope of Sec.  850.1 
would be amended to state that 10 CFR part 850 provides for 
establishment of a chronic beryllium disease prevention program (CBDPP) 
that supplements and is deemed an integral part of the worker safety 
and health program under 10 CFR part 851. The enforcement provision in 
Sec.  850.4 would also be amended to state that DOE may take 
appropriate steps pursuant to 10 CFR part 851 to enforce compliance by 
contractors with part 850 and any DOE-approved CBDPP. This would allow 
DOE to assess civil penalties under 10 CFR part 851 for violations of 
the CBDPP under 10 CFR part 850.
4. Implementation
    In order for the selected workplace safety and health standards to 
achieve the required level of protection, the contractor responsible 
for a workplace must implement them properly in a manner tailored to a 
particular workplace environment. Proposed Sec.  851.101(c)(4) would 
require the worker safety and health program to describe how work will 
be performed in accordance with the selected workplace safety and 
health standards. This description would identify how the

[[Page 68280]]

contractor responsible for a workplace would: (1) Select and use 
procedures, controls, and work processes in a tailored manner in 
particular workplaces to implement the selected standards; and (2) 
select controls on the basis of the following hierarchy in descending 
order: engineering controls, administrative controls, work practices, 
and personal protective equipment. Where appropriate, the program might 
identify specific procedures, controls and work processes and describe 
how these procedures, controls and work processes would be used to 
achieve a tailored implementation. At a minimum, proposed Sec.  
851.101(c)(4)(C) would require a description of the process by which 
the set of selected workplace safety and health standards would flow 
down to a particular workplace, including how a contractor would select 
the procedures, controls, and work processes to implement the standards 
in a tailored manner for particular covered workplaces. This 
description would address the extent to which the flowdown might 
require additional analysis at the facility, activity and workplace 
levels. In addition, proposed Sec.  851.101(c)(4)(C) would require a 
description of how the program was integrated on site, facility, 
activity and workplace levels, taking into account differences and 
similarities between the work, hazards, and workplace safety and health 
standards and, if applicable, coordinated with other worker safety and 
health programs at the site.
    Implementation should focus on workplace hazards that are more 
likely to cause serious harm to workers. Accordingly, proposed Sec.  
851.101(c)(6) would require the worker safety and health program to 
prioritize the abatement of hazards on the basis of a qualitative 
evaluation of the relative risk to workers posed by identified 
workplace hazards. In addition, proposed Sec.  851.101(c)(7) would 
require a worker safety and health program to address how 
implementation would incorporate certain features into the worker 
safety and health program. These features include line management 
commitment, information and training, ongoing workplace monitoring and 
observation, medical surveillance and applicability to subcontractors.
5. Evaluation and Feedback
    A key element for a successful worker safety and health program is 
feedback and continuous improvement. Proposed Sec.  851.101(c)(5) would 
require a contractor to describe how it will update and maintain the 
program on a continuous basis. The contractor would describe its 
procedures and processes for feedback activities such as lessons 
learned, training, updating, document control, and configuration 
control that may support a worker safety and health program. Moreover, 
the process of defining the scope of work, analyzing the hazards 
associated with the work, and identifying a set of standards should be 
an iterative process performed continually to provide feedback and 
improvement. This iterative process would provide a contractor with the 
information necessary to make continual changes and improvements to all 
aspects of the program and to comply with proposed Sec.  851.102(c) 
that would require a contractor to evaluate and update a worker safety 
and health program to reflect changes in the work and the hazards. In 
addition to contractor initiated revisions, proposed Sec.  
851.102(c)(3) would require a contractor to modify a worker safety and 
health program to incorporate any changes, conditions, or workplace 
safety and health standards directed by DOE.

F. Submission, Approval and Revision of Worker Safety and Health 
Programs

1. DOE Approval
    Beginning one year after publication of the final rule, proposed 
Sec.  851.102(a) would prohibit work from being performed at a DOE 
workplace unless the Program Secretarial Officer (PSO) (which proposed 
Sec.  851.3 would define as ``the Assistant Secretary, Deputy 
Administrator, Program Office Director, or equivalent DOE official who 
has primary line management responsibility for a contractor) had 
approved the worker safety and health program for the workplace on the 
basis of a determination that the program would achieve a level of 
protection at least substantially equivalent to the level of protection 
that existed in comparable DOE workplaces in 2002. A worker protection 
evaluation report would document the approval and determination. As 
part of the approval process, the PSO could direct the contractor to 
modify the worker safety and health program.
    To approve the program, DOE would review the content and quality of 
the worker safety and health program for a DOE site to determine 
whether the rigor and detail were appropriate for the complexity and 
hazards expected at workplaces located at the site. DOE also would 
review the sufficiency of the analysis of work and hazards that 
supported the program. After approval of a program, DOE would focus its 
attention on how well a contractor performed in providing safe and 
healthy workplaces, rather than on the details of how the contractor 
developed the program.
2. Submittal and Compliance Dates
    Proposed Sec.  851.102(b) would require a contractor to submit a 
worker safety and health program to DOE for approval 180 days after 
publication of the final rule. This date would give a DOE contractor 
six months to submit a plan after the issuance of the final rule. The 
Act provides that the regulations shall take effect one year after the 
promulgation date of the regulations. DOE would not undertake 
enforcement actions pursuant to this rule on the basis of conduct prior 
to the effective date. DOE believes these dates should give contractors 
ample time to submit programs for approval and begin implementation 
since contractors already have a contractual obligation to have worker 
protection programs that should satisfy all or most of the requirements 
set forth in the proposed regulations.
3. Annual Update
    Proposed Sec.  851.102(c) would require a contractor to maintain 
the worker safety and health program for a workplace by evaluating and 
updating the worker safety and health program to reflect changes in the 
work and the hazards. On an annual basis, the contractor would have to 
submit either an updated worker safety and health program to DOE for 
approval or a letter stating that no changes were necessary in the 
currently approved worker safety and health program. Annual updates are 
an important tool in meeting the requirement for continuous feedback 
and evaluation and allow a contractor to notify DOE of changes 
occurring during the past year such as new work to be performed, 
changes in the facility, building of new facilities or decommissioning 
of old facilities, associated hazards and performance problems. Only 
those changes in the workplace that have a potential to impact the 
worker safety and health program would need to be reflected in the 
worker safety and health program.

G. Guidance Documents

    Proposed Sec.  851.8 would explicitly limit the potential role of a 
``guidance document'' as a source of enforceable worker safety and 
health requirements. DOE would continue to issue guidance documents to 
assist contractors in developing their worker safety and health 
programs, including selecting a set of standards and describing 
implementing procedures, controls, and work processes, but contractors 
would

[[Page 68281]]

not be obligated to use them. Rather, contractors' only obligation 
would be to comply with the regulations themselves.
    Proposed Sec.  851.8 would broadly define the term ``guidance 
document'' to include any document that sets forth information related 
to implementing or otherwise complying with a requirement set forth in 
the proposed regulations and that DOE has not adopted as a legally 
binding requirement through notice and comment rulemaking under the 
Administrative Procedure Act (5 U.S.C. 553). This definition would 
include proposed Appendices A and B, DOE and industry standards, and 
any document in the DOE directive system or other informal statement of 
policy regardless of which DOE official approved or signed the 
document. Use of the terms ``shall'' or ``must'' in a guidance document 
does not change the non-mandatory character and effect of the document.
    Proposed Sec.  851.8(a) would make clear to contractors and DOE 
officials that guidance documents do not create legally enforceable 
requirements. Proposed Sec.  851.8(b) would prohibit DOE officials from 
inspecting or investigating a DOE site to identify violations of the 
proposed regulations by determining whether a contractor's actions or 
omissions were consistent with a guidance document. DOE intends that 
such inspections and investigations will, ordinarily, focus on whether 
a contractor's actions or omissions comply with the requirements under 
its worker safety and health program, or on rare occasions, on whether 
such actions or omissions comply with requirements of a compliance 
order issued for cause by the Secretary under Sec.  851.6. Proposed 
Sec.  851.8(c) would identify the limited circumstances in which a 
guidance document can give rise to an enforceable requirement. 
Specifically, a guidance document can give rise to an enforceable 
requirement only to the extent it is explicitly: (1) included by a 
contractor in the set of workplace safety and health standards 
identified pursuant to Sec.  851.101(c)(3)(B) of the proposed 
regulations; or (2) selected or used by a contractor as a procedure, 
control, or work process to perform work in a tailored manner for 
particular covered workplaces in accordance with Sec.  851.101(c)(4) of 
the proposed regulations. Only in these circumstances may DOE pursue an 
enforcement action on the basis of action inconsistent with a guidance 
document and, in these circumstances, DOE would base the enforcement 
action on a provision of the contractor's plan and not the guidance 
document itself.
    Proposed Sec.  851.8 would serve two purposes. First, by precluding 
imposition of a de facto set of requirements in the guise of guidance, 
it would ensure that, as required by section 234C(a)(3) of the AEA, 
DOE's implementing regulations include flexibility to tailor 
implementation of such regulations to reflect activities and hazards 
associated with a particular work environment. Put more succinctly, 
proposed Sec.  851.8 would reinforce site-specific integrated safety 
management as the guiding principle for the proposed regulations. 
Second, proposed Sec.  851.8 is responsive to potential contractor 
criticism that reliance on generally applicable, informal policy 
directives in the area of worker safety and health instead of duly 
promulgated rules under the Administrative Procedure Act promotes 
regulatory instability across the DOE complex which is antithetical to 
effective integrated safety management and to accomplishment of DOE's 
national security and research missions. Proposed Sec.  851.8 would 
thus reinforce the shift from a DOE directive-driven regime 
characterized by informal DOE policies to a regulatory regime 
characterized by generally applicable rules that have the force and 
effect of law with respect to DOE officials, as well as with respect to 
regulated contractors. Moreover, proposed Sec.  851.8 recognizes the 
responsibility and obligation of a contractor, in the first instance, 
to select the procedures, controls, and work processes to use in 
achieving safe and healthy workplaces and implementing its worker 
safety and health program.

H. Workers Rights

    Workers at DOE sites currently have a number of rights related to 
assuring a safe and healthy workplace. Proposed Sec.  851.103 would 
list these rights and make clear that workers may exercise these rights 
without fear of reprisal. Specifically, the proposed regulations would 
maintain the rights of workers to: (1) Participate in activities 
described in this section on official time; (2) have access to DOE 
safety and health publications, the DOE-approved worker safety and 
health program for the DOE site and the standards, controls and 
procedures applicable to the covered workplace; (3) observe monitoring 
or measuring of hazardous agents; (4) have access to monitoring and 
measuring results and be notified when such results indicate the worker 
was overexposed to hazardous materials; (5) accompany DOE personnel 
during an inspection of the workplace; (6) request and receive results 
of inspections and accident investigations; (7) express concerns 
related to worker safety and health; (8) decline to perform an assigned 
task because of a reasonable belief that, under the circumstances, the 
task poses an imminent risk of death or serious bodily harm to the 
worker coupled with a reasonable belief that there is insufficient time 
to seek effective redress through the normal hazard reporting and 
abatement procedures; (9) stop work, through the worker's supervisor, 
when the worker discovers employee exposures to imminent danger 
conditions or other serious hazards, provided that any stop work 
authority must be exercised in a justifiable and responsible manner in 
accordance with established procedures; and (10) have access to an 
appropriate safety and health poster that informs the worker of 
relevant rights and responsibilities.

I. Enforcement

1. Civil Penalties
    Section 234Cb. of the AEA provides that ``a person (or any 
subcontractor or supplier of the person) who has entered into an 
agreement of indemnification under section 170d. (or any subcontractor 
or supplier of the person) that violates (or is the employer of a 
person that violates) any regulation promulgated under [section 234C] 
shall be subject to a civil penalty of not more than $70,000 for each 
such violation.'' For continuing violations, section 234C provides that 
each day of the violation shall constitute a separate violation for the 
purposes of computing the civil penalty to be imposed.
    Proposed Sec.  851.4(c) would implement this statutory provision by 
making a contractor whose contract with DOE contains an indemnification 
agreement (or any subcontractor or supplier thereto) and who violates 
(or whose employee violates) any requirement of the proposed 
regulations subject to a civil penalty of not more than $70,000 for 
each such violation. In the case of a continuing violation, each day of 
the violation would constitute a separate violation for the purpose of 
computing the amount of the civil penalty.
2. Contract Fee Reductions
    Section 234Cc. of the AEA requires DOE to include provisions in DOE 
contracts for an appropriate reduction in the fees or amounts paid to 
the contractor if the contractor or a contractor employee violates the 
regulations required by section 234C. The Act requires these provisions 
to be included in each DOE contract with a contractor who has entered 
into an

[[Page 68282]]

agreement of indemnification under section 170d. of the AEA (the Price-
Anderson Act). The contract provisions must specify the degrees of 
violations and the amount of the reduction attributable to each degree 
of violation.
    DOE is implementing this statutory mandate to include provisions 
for the reduction in fees in contracts for violations of this part 
pursuant to the contract's Conditional Payment of Fee clause. Most DOE 
management and operating contracts currently contain such a clause 
providing for reductions of earned fee, fixed fee, profit, or share of 
cost savings that may otherwise be payable under the contract if 
performance failures relating to environment, safety and health occur. 
See 48 CFR 970.5215-3, Conditional Payment of Fee, Profit, or 
Incentives (applicable to DOE management and operating contracts and 
other contracts designated by the Procurement Executive). DOE proposed 
to amend this clause to set forth the specific criteria and conditions 
that may precipitate a reduction of earned or fixed fee, profit, or 
share of cost savings under the contract. The clause would establish 
reduction ranges that correlate to three specified degrees of 
performance failures relating to environment, safety and health. See 66 
FR 8560 (Feb. 1, 2001) (notice of proposed rulemaking). In the final 
rule, DOE intends to clarify that the term ``environment, health and 
safety'' includes matters relating to ``worker health and safety'' and 
to apply the same reduction ranges and degrees of performance failure 
to worker safety and health. In a parallel provision, proposed Sec.  
851.4(b) also would implement this statutory mandate by making a 
contractor who fails to comply with the requirements of the general 
rule in proposed Sec.  851.100 subject to a reduction in fees or other 
payments under a contract with DOE pursuant to the contract's 
Conditional Payment of Fee clause.
3. Relationship of Civil Penalties and Contract Fee Reductions
    As a general matter, DOE intends to use civil penalties as the 
remedy for most violations where DOE may elect between remedies. DOE 
expects to invoke the provisions for reducing contract fees only in 
cases involving especially egregious violations or that indicate a 
general failure to perform under the contract with respect to worker 
safety and health. Such violations would call into question a 
contractor's commitment and ability to achieve the fundamental 
obligation of providing safe and healthy workplaces for workers because 
of factors such as willfulness, repeated violations, death, serious 
injury, patterns of systemic violations, flagrant DOE-identified 
violations, repeated poor performance in an area of concern, or serious 
breakdown in management controls. Because such violations indicate a 
general failure to perform under the contract with respect to worker 
safety and health where both remedies are available and DOE elects to 
use a reduction in fee, DOE would expect to reduce fees substantially 
under the Conditional Payment of Fee clause.
4. Limitations on Penalties
    Section 234Cd. imposes three specific limitations on DOE's 
authority to seek monetary remedies. Specifically, DOE may not (1) both 
reduce contract fees and assess civil penalties for the same violation 
of a worker protection requirement; (2) assess both civil penalties 
authorized by section 234A (nuclear safety and radiological protection 
regulations) and by section 234C (worker safety and health regulations) 
for the same violation; and, (3) with respect to those nonprofit 
contractors specifically listed as exempt from civil penalties for 
nuclear safety violations in subsection d. of section 234A of the AEA, 
assess an aggregate amount of civil penalties and contractor penalties 
in a fiscal year in excess of the total amount of fees paid by DOE to 
that nonprofit entity in that fiscal year. Proposed Sec. Sec.  
851.4(d), (e) and (f) sets forth these statutory limitations.
5. Enforcement Procedures
    Proposed subpart C of part 851 sets forth the administrative 
procedures DOE would use to issue enforcement actions and impose civil 
penalties. In general, DOE has based these procedures on the existing 
procedural regulations for nuclear safety enforcement in 10 CFR part 
820, which has provided the basis for implementing a successful nuclear 
safety compliance program since the mid 1990s. See Procedural Rules for 
DOE Nuclear Activities, 10 CFR part 820, 58 FR 43680 (Aug. 17, 1993), 
amended, 62 FR 52481 (Oct. 8, 1997) and 65 FR 15220 (Mar. 22, 2000). 
The proposed procedures would provide for investigations and 
inspections, subpoenas, informal conferences, enforcement letters, 
settlements, consent orders, preliminary notices of violations, and 
final notices of violations. Contractors would take administrative 
appeals of final notices of violations to DOE's Office of Hearings and 
Appeals rather than an administrative law judge as provided for in 10 
CFR part 820. Unlike section 234A of the AEA, section 234C does not 
provide for the use of administrative law judges and other procedural 
mechanisms. A decision of the Office of Hearings and Appeals would 
exhaust a contractor's administrative remedies with respect to a final 
notice of violation and would constitute a final order of DOE.
    The proposed regulations would assign responsibility for carrying 
out these enforcement procedures to the ``Director,'' which proposed 
Sec.  851.3 would define as ``the DOE Official to whom the Secretary 
has assigned the authority to investigate the nature and extent of 
compliance with the requirements of'' the proposed regulations. DOE 
expects this function would be assigned to the current Director of the 
Office of Price-Anderson Enforcement in the Office of Environment, 
Health and Safety, who is the person to whom the Secretary has assigned 
the responsibility for enforcing the DOE nuclear safety regulations in 
10 CFR parts 820, 830, and 835.
    While proposed Sec.  851.201(j) would permit the Director to send 
an enforcement letter to a contractor to communicate DOE's expectations 
for compliance with the proposed regulations, the primary 
responsibility lies with the Program Secretarial Officer for ensuring 
that a contractor has an approved worker safety and health program that 
is adequate to achieve a level of protection at least substantially 
equivalent to the level of protection that existed in 2002 for DOE 
workplaces comparable to those covered workplaces addressed by the 
program and that has sufficient detail to allow the Director to conduct 
inspections or investigations to determine compliance. Proposed Sec.  
851.201(j) would make clear that an enforcement letter may not create 
the basis for any legally enforceable requirement under this part.
    With respect to exercising certain functions that might be 
interpreted as giving direction to DOE's National Nuclear Security 
Administration's contractors, proposed Sec.  851.206 would make the 
Administrator of the NNSA responsible for exercising such functions. 
These functions would be signing and issuing subpoenas, orders to 
compel attendance, orders disclosing information obtained during an 
investigation, preliminary notices of violation and final notices of 
violation. In taking such actions, the NNSA Administrator would 
consider the Director's recommendations. A similar division of 
responsibilities has been made for enforcing the DOE nuclear safety 
regulations under part 820. See Memorandum of Understanding between 
NNSA and the Assistant

[[Page 68283]]

Secretary for Environment, Health and Safety, Jan. 12, 2001, http://tis-nt.eh.doe.gov/enforce/handbks/20010108mou.pdf. Under both part 820 
and proposed part 851, the Director would continue to be able to sign 
enforcement letters and consent orders applicable to NNSA contractors.
6. General Statement of Enforcement Policy
    As a guidance document for enforcing this rule, DOE is proposing to 
issue a general statement of enforcement policy as Appendix B. The 
proposed policy would set forth the general framework which DOE would 
follow to ensure compliance with the proposed regulations and to issue 
enforcement actions and exercise civil penalty authority. The proposed 
policy would not be binding and would not create any legally 
enforceable requirements pursuant to this part. It would only provide 
guidance as to how DOE generally expects to seek compliance with the 
proposed regulations and to deal with any violations of the proposed 
regulations.
    The proposed policy is intended to achieve dual purposes of 
promoting proactive behavior on the part of DOE contractors to improve 
worker safety and health performance and of deterring contractors from 
violating the proposed regulations. The proposed policy would encourage 
DOE contractors to self-identify, report and correct worker safety and 
health noncompliances and would provide adjustment factors to escalate 
or mitigate civil penalties on the basis of the nature of the violation 
and the behavior of the contractor.
    To accomplish these purposes, the proposed policy would incorporate 
the basic outlines of DOE's well-established nuclear safety enforcement 
program in part 820. The enforcement policy would utilize the part 820 
severity levels I, II, and III and related adjustment factors. These 
severity levels and adjustment factors in the policy incorporate 
concepts OSHA uses in its enforcement program including whether a 
violation is serious, other-than-serious, willful, repeated, or de 
minimis.
    Specifically, the proposed policy would provide guidance on the 
treatment of violations in three severity levels. A severity level I 
violation would be a serious violation, which would involve the 
potential that death or serious physical harm could result from a 
condition in a workplace, or from one or more practices, means, 
methods, operations, or processes used in connection with a workplace. 
A severity level I violation would be subject to a base civil penalty 
of up to 100% of the maximum base civil penalty or $70,000.
    A severity level II violation is an other-than-serious violation, 
which would involve a potential that the most serious injury or illness 
that might result from a hazardous condition cannot reasonably be 
predicted to cause death or serious physical harm to exposed employees 
but does have a direct relationship to their safety and health. A 
severity level II violation would be subject to a base civil penalty up 
to 50% of the maximum base civil penalty or $35,000.
    A severity level III violation is a de minimis violation. DOE may 
evaluate minor noncompliances to determine if generic or specific 
problems exist and consider them in the aggregate as a more serious 
violation. A severity level III violation would be subject to a base 
civil penalty up to 10% of the maximum base civil penalty or $7,000.
    DOE could modify or remit these base civil penalties consistent 
with mitigation and adjustment factors set forth in the proposed 
policy. Factors include the gravity, circumstances, and extent of the 
violation or violations and, with respect to the violator, any history 
of prior similar violations and the degree of culpability and 
knowledge. These factors are the same as those used for part 820 and 
are similar to the adjustment factors in the proposed Conditional 
Payment of Fee rule but the factors in the proposed fee rule include 
additional focus on performance under the contract.
    Regarding the factor of ability of DOE contractors to pay the civil 
penalties, the policy provides that it is not DOE's intention that the 
economic impact of a civil penalty would put a DOE contractor out of 
business. The policy would also provide that when a contractor asserts 
that it cannot pay the proposed penalty, DOE would evaluate the 
relationship of affiliated entities to the contractor such as parent 
corporations.
    Based on the adjustment factors relating to a noncompliance, DOE 
could mitigate a civil penalty from the statutory maximum of $70,000 
per violation per day. Mitigation factors used to reduce a civil 
penalty include whether a DOE contractor promptly identified and 
reported a violation and took effective corrective actions. Factors 
used to increase penalties (but not over the statutory maximum of 
$70,000) would include whether a violation is repeated or involves 
willfulness, death, serious physical harm, patterns of systemic 
violations, flagrant DOE-identified violations, repeated poor 
performance in an area of concern, or serious breakdowns in management 
controls.
    As noted previously, when both remedies are available, DOE may 
consider a reduction in contract fees if a violation is especially 
egregious or indicates a general failure to perform under the contract 
with respect to worker safety and health. In determining whether to 
refer a violation to the appropriate DOE official responsible for 
administering reductions in fee pursuant to the Conditional Payment of 
Fee clause, the Director will generally focus on the factors stated 
above, such as willfulness, repeated violations, death, serious injury, 
patterns of systemic violations, flagrant DOE-identified violations, 
repeated poor performance in an area of concern, or serious breakdown 
in management controls. In cases where DOE may elect between civil 
penalties and a contract penalty, these kinds of factors may also lead 
DOE to consider a reduction in fee if they raise doubts about a 
contractor's overall performance or ability to perform its contract 
with proper regard for worker safety and health.
    In proposing the base civil penalties for the types of violations 
in this policy, DOE set the starting base amounts at levels higher than 
the average OSHA penalty for several reasons. DOE's activities are 
conducted by large, experienced management and operating contractors 
and their subcontractors and suppliers. Through the contractual 
relationships that DOE has with these entities, DOE is in constant 
dialogue concerning the management and operation of DOE's sites and the 
performance of its governmental missions. DOE has the authority to 
require these contractors to develop their own worker safety and health 
programs for DOE approval and to select standards tailored to the work 
and the hazards. Moreover, DOE may unilaterally direct contractors to 
include various provisions in their programs. Thus, the Director is in 
a position to enforce against these programs and can provide incentives 
for proactive compliance. The policy strongly encourages self-
identification of violations, self-reporting, tracking systems and 
corrective action programs. Moreover, DOE also has the authority and 
flexibility to coordinate and choose either a civil penalty or fee 
reduction remedy based on the enforcement policy and the fee reduction 
contract clause. The proposed enforcement structure of this rule fits 
the DOE complex better than would a generic system as found in OSHA's 
enforcement programs.
    Finally, as a tool for implementing the enforcement policy, DOE 
intends to

[[Page 68284]]

provide a voluntary computerized database system to allow contractors 
to report worker safety and health noncompliances. DOE intends to 
enhance its Noncompliance Tracking System (NTS), currently used for 
reporting of noncompliances of the DOE nuclear safety requirements, to 
permit its use for reporting noncompliances with this rule. DOE will 
develop appropriate reporting thresholds unique to worker safety and 
health to assure that the system will focus on issues with the greatest 
potential consequences for worker safety and health.

J. Scope of the Rule

1. DOE Contractors and DOE-Operated Workplaces
    Proposed Sec.  851.1 would establish the scope of the proposed 
regulations as governing the conduct of activities by or on behalf of 
DOE. The regulations would thus apply to activities performed by DOE 
contractors and by DOE at covered workplaces at DOE sites, except for 
workplaces regulated by the naval nuclear propulsion program or by the 
Occupational Safety and Health Administration (OHSA). Proposed Sec.  
851.3 would define a ``covered workplace'' as a place where work is 
conducted by or on behalf of DOE where DOE has oversight responsibility 
for safety and health and would define ``DOE site'' as a DOE-owned or 
leased area or location where DOE activities and operations are 
performed at one or more facilities or locations. While the proposed 
regulations would obligate a contractor to ensure its employees 
performed work in accordance with the proposed regulations, the 
proposed regulations would not make individual employees subject to 
enforcement actions or the imposition of penalties.
    DOE is proposing to limit the scope of the proposed regulations to 
DOE sites. However, DOE invites public comment concerning whether the 
proposed regulations also should cover activities performed away from a 
DOE site, such as transportation.
    DOE is also proposing to apply the proposed regulations to covered 
workplaces operated by DOE. Proposed Sec.  851.9 would require that for 
DOE-operated workplaces, DOE must ensure that work is performed 
consistent with the proposed regulations including the establishment, 
maintenance and implementation of a worker safety and health program. 
Proposed Sec.  851.9 would apply to government-owned, government-
operated facilities related to DOE's mission, including certain 
laboratories or operations conducted by DOE, as well as general federal 
government office workplaces in buildings in Washington DC, Germantown, 
Maryland, or DOE site offices in the field. Thus, this rule is intended 
to provide protection to workers who are contractor employees and to 
workers who are federal employees.
    Section 234C mandates DOE to promulgate regulations to cover DOE 
facilities that are operated by contractors covered by agreements of 
indemnification under the Price-Anderson Act, 42 U.S.C. 2210(d). The 
proposed regulations go beyond that mandate to continue DOE's current 
practice of exercising its statutory authority to direct its 
contractors to perform work in a manner that protects the safety and 
health of workers, without regard to whether the contractor is covered 
by an agreement of indemnification. As a practical matter, the Price-
Anderson Act requires DOE to include an agreement of indemnification in 
every contract that has the potential to involve any activity with any 
risk of a nuclear incident. As a result, nearly all DOE contracts 
include an agreement of indemnification, with the exception of 
contracts relating to the petroleum strategic reserves sites, power 
administrations, and certain nonnuclear laboratories. While section 
234C is not the source of DOE's authority to promulgate the proposed 
regulations, it is the source of DOE's authority to impose civil 
penalties. Thus, proposed Sec.  851.4(c) would limit the imposition of 
civil penalties to contractors covered by an agreement of 
indemnification. Proposed Sec.  851.4(b) would not limit contractual 
enforcement actions to contractors covered by an agreement of 
indemnification since section 234C is not the source of DOE's authority 
to use contract mechanisms to achieve safe and healthy workplaces.
    The proposed regulations also would continue DOE's current practice 
of exercising its statutory authority to direct its contractors to 
perform work in a manner that protects the safety and health of 
workers, without regard to whether the workers are engaged in a nuclear 
or nonnuclear activity. Section 234C is not limited to nuclear 
activities in mandating the promulgation of worker protection 
regulations.
2. OSHA Exclusion
    DOE currently exercises its statutory authority broadly throughout 
the DOE complex to provide safe and healthful workplaces. In a few 
cases, however, DOE has elected not to exercise its authority and to 
defer to regulation by OSHA under the Occupational Safety and Health 
(OSH) Act (29 U.S.C. 651 et seq.). Proposed Sec.  851.2(a)(1) would 
continue the status quo by not covering those facilities regulated by 
OSHA on December 2, 2002, the date the NDAA was enacted. The OSHA-
regulated facilities are: Western Area Power Administration; 
Southwestern Power Administration; Southeastern Power Administration; 
Bonneville Power Administration; National Energy Technology Laboratory 
(NETL), Morgantown, WV; National Energy Technology Laboratory (NETL), 
Pittsburgh, PA; Strategic Petroleum Reserve (SPR); National Petroleum 
Technology Office; Albany Research Center; Naval Petroleum & Oil Shale 
Reserves in CO, UT, & WY; and Naval Petroleum Reserves in California. 
See 65 FR 41492 (July 5, 2000).
3. Naval Reactors
    Section 234C explicitly excludes activities conducted under the 
authority of the Director, Naval Nuclear Propulsion, pursuant to 
Executive Order 12344, as set forth in Public Law 106-65. Accordingly, 
proposed Sec.  851.2(a)(2) would exclude workplaces regulated by Naval 
Reactors.
4. Radiological Hazards
    Proposed Sec.  851.2(b) would exclude radiological hazards from the 
hazards covered by the proposed regulations to the extent they are 
already regulated by the DOE nuclear safety requirements in 10 CFR 
parts 820, 830, and 835. These existing rules already deal with 
radiological hazards in a comprehensive manner through methods such as 
the Quality Assurance Program Plan, the Safety Basis, the Documented 
Safety Analysis, and the Radiation Protection Program Plan. The 
proposed regulations are intended to complement the nuclear safety 
requirements. Personnel responsible for implementing worker protection 
and nuclear safety requirements would be expected to coordinate and 
cooperate in instances where the requirements overlapped. The two sets 
of requirements should be integrated and applied in a manner that 
guards against unintended results and provides reasonable assurance of 
adequate worker protection.

K. Information Requirements

    Proposed Sec.  851.5 would require a contractor (1) to maintain 
complete and accurate records as necessary to substantiate compliance 
with the proposed regulations; (2) to neither conceal nor destroy any 
relevant information concerning noncompliance or potential 
noncompliance with the proposed regulations; and (3) to

[[Page 68285]]

maintain complete and accurate information in all material respects. 
Proposed Sec.  851.5(d) would make clear that a contractor must 
safeguard classified, confidential, and controlled information, 
including Restricted Data or national security information, in 
accordance with the applicable provisions of federal statutes and the 
rules, regulations, and orders of any federal agency.
    DOE considered but decided not to propose new reporting 
requirements in support of the proposed regulations. DOE will continue 
to use contractual provisions to require contractors to report worker 
safety and health information which may be used to assess the 
performance and effectiveness of worker safety and health programs. 
This information is generally maintained in large, specialized 
databases which necessitate management flexibility. The primary 
directive on environment, safety and health reporting that DOE includes 
in contracts is DOE Order 231.1A. This order requires contractors to 
record, maintain and post records related to occupational fatalities, 
injuries, and illnesses occurring among their employees (and 
subcontractors) arising out of work primarily performed at DOE-owned or 
-leased facilities. Other relevant reporting directives include 
occurrence reporting and processing of operations information; 
performance indicators and analysis of operations information; and 
accident investigations.
    DOE recently has taken steps to eliminate unnecessary reporting 
requirements related to the subject matter of the proposed regulations. 
DOE remains committed to reducing the reporting burden where reporting 
requirements do not contribute to worker safety and health. 
Accordingly, DOE requests comments on how the reporting burden could be 
further minimized consistent with that objective. Comments should 
specify the reporting requirements that give rise to the burden and 
discuss the reasons for their elimination or suggest how they could be 
modified to minimize the burden without impairing worker safety and 
health.

L. Compliance Order

    Proposed Sec.  851.6 would make clear that the Secretary of Energy 
has the authority to issue a Compliance Order that identifies a 
situation that violates, potentially violates, or otherwise is 
inconsistent with a requirement of this part; mandates a remedy, work 
stoppage, or other action; and states the reasons for the remedy, work 
stoppage, or other action. The compliance order would be a final order 
that is effective immediately. This mechanism is nearly identical to 
the provisions in 10 CFR 820.41 and is intended to operate in a similar 
manner.

M. Interpretations by Office of General Counsel

    Proposed Sec.  851.7 would make clear the Office of the General 
Counsel would have sole responsibility for formulating and issuing any 
interpretation concerning a requirement in the proposed regulations. 
Any other written or oral response to any written or oral question 
would not constitute an interpretation or basis for action inconsistent 
with the proposed regulations.

III. Procedural Review Requirements

A. Review Under Executive Order 12866

    Today's proposed regulatory action has been determined to be a 
``significant regulatory action'' under Executive Order 12866, 
``Regulatory Planning and Review'' (58 FR 51735, October 4, 1993), as 
amended by Executive Order 13258 (67 FR 9385, February 26, 2002). 
Accordingly, DOE submitted this notice of proposed rulemaking to the 
Office of Information and Regulatory Affairs of the Office of 
Management and Budget, which has completed its review.

B. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, Section 3(a) of Executive Order 12988, 
``Civil Justice Reform'' (61 FR 4779, February 7, 1996) imposes on 
Federal agencies the general duty to adhere to the following 
requirements: eliminate drafting errors and needless ambiguity, write 
regulations to minimize litigation, provide a clear legal standard for 
affected conduct rather than a general standard, and promote 
simplification and burden reduction. Section 3(b) requires Federal 
agencies to make every reasonable effort to ensure that a regulation, 
among other things: clearly specifies the preemptive effect, if any, 
adequately defines key terms, and addresses other important issues 
affecting the clarity and general draftsmanship under guidelines issued 
by the Attorney General. Section 3(c) of Executive Order 12988 requires 
Executive agencies to review regulations in light of applicable 
standards in Section 3(a) and Section 3(b) to determine whether they 
are met or it is unreasonable to meet one or more of them. DOE has 
completed the required review and determined that, to the extent 
permitted by law, the proposed rule meets the relevant standards of 
Executive Order 12988.

C. Review Under Executive Order 13132

    Executive Order 13132 (64 FR 43255, August 10, 1999), imposes 
certain requirements on agencies formulating and implementing policies 
or regulations that preempt State law or that have federalism 
implications. Agencies are required to examine the constitutional and 
statutory authority supporting any action that would limit the 
policymaking discretion of the States and carefully assess the 
necessity for such actions.
    Today's regulatory action has been determined not to be a ``policy 
that has federalism implications,'' that is, it does not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, nor on the distribution of 
power and responsibility among the various levels of government under 
Executive Order 13132 (64 FR 43255, August 10, 1999). Accordingly, no 
``federalism summary impact statement'' was prepared or subjected to 
review under the Executive Order by the Director of the Office of 
Management and Budget.

D. Review Under Executive Order 13175

    Under Executive Order 13175 (65 FR 67249, November 6, 2000) on 
``Consultation and Coordination with Indian Tribal Governments,'' DOE 
may not issue a discretionary rule that has ``tribal implications'' and 
imposes substantial direct compliance costs on Indian tribal 
governments. DOE has determined that the proposed rule would not have 
such effects and concluded that Executive Order 13175 does not apply to 
this proposed rule.

E. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) 
requires that an agency prepare an initial regulatory flexibility 
analysis for any regulation which a general notice of proposed 
rulemaking is required, unless the agency certifies that the rule, if 
promulgated, will not have a significant economic impact on a 
substantial number of small entities (5 U.S.C. 605(b)).
    Today's proposed regulation would establish DOE's requirements for 
worker safety and health at DOE sites. The contractors who manage and 
operate DOE facilities would be principally responsible for 
implementing the rule requirements. DOE considered whether these 
contractors are ``small businesses,'' as that term is defined in

[[Page 68286]]

the Regulatory Flexibility Act's (5 U.S.C. 601(3)). The Regulatory 
Flexibility Act's definition incorporates the definition of ``small 
business concern'' in the Small Business Act, which the Small Business 
Administration (SBA) has developed through size standards in 13 CFR 
part 121. The DOE contractors subject to the proposed rule exceed the 
SBA's size standards for small businesses. In addition, DOE expects 
that any potential economic impact of this proposed rule on small 
businesses would be minimal because DOE sites perform work under 
contracts to DOE or the prime contractor at the site. DOE contractors 
are reimbursed through their contracts with DOE for the costs of 
complying with DOE safety and health program requirements. They would 
not, therefore, be adversely impacted by the requirements in this 
proposed rule. For these reasons, DOE certifies that today's proposed 
rule, if promulgated, would not have a significant economic impact on a 
substantial number of small entities, and therefore, no regulatory 
flexibility analysis has been prepared. See 68 FR 7990 at III.1. and 
III.1.c. (February 19, 2003).

F. Review Under the Paperwork Reduction Act

    The information collection provisions of this proposed rule are not 
substantially different from those contained in DOE contracts with DOE 
prime contractors covered by this rule and were previously approved by 
the Office of Management and Budget (OMB) and assigned OMB Control No. 
1910-5103. That approval covered submission of a description of an 
integrated safety management system required by the Integration of 
Environment, Health and Safety into Work Planning and Execution clause 
set forth in the DOE procurement regulations. 48 CFR 952.223-71 and 
970.5223-1, 62 FR 34842, 34859-60 (June 17, 1997). If contractors at a 
DOE site fulfill their contractual responsibilities for integrated 
safety management properly, the worker safety and health program 
required by the proposed regulations should require little if any new 
analysis or new documents to the extent that existing analysis and 
documents are sufficient for purposes of the proposed regulations. 
Accordingly, no additional Office of Management and Budget clearance is 
required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.) and the procedures implementing that Act, 5 CFR 1320.1 et seq.

G. Review Under the National Environmental Policy Act

    DOE currently implements its broad authority to regulate worker 
safety and health through internal DOE directives incorporated into 
contracts to manage and operate DOE facilities, contract clauses and 
DOE regulations. This proposed rule would implement the statutory 
mandate to promulgate worker safety and health regulations for DOE 
facilities that would provide a level of protection for workers at DOE 
facilities that is substantially equivalent to the level of protection 
currently provided to such workers and to provide procedures to ensure 
compliance with the rule. DOE anticipates that the contractor's work 
and safety programs required by this regulation would be based on 
existing programs and that this rule would generally not require the 
development of a new program. DOE has therefore concluded that 
promulgation of these regulations would fall into the class of actions 
that would not individually or cumulatively have a significant impact 
on the human environment as set forth in the DOE regulations 
implementing the National Environmental Policy Act of 1969 (42 U.S.C. 
4321 et seq.). Specifically, the rule would be covered under the 
categorical exclusion in paragraph A6 of Appendix A to Subpart D, 10 
CFR Part 1021, which applies to the establishment of procedural 
rulemakings. Accordingly, neither an environmental assessment nor an 
environmental impact statement is required.

H. Review Under the Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written assessment of the 
effects of any Federal mandate in a proposed or final agency regulation 
that may result in the expenditure by states, tribal, or local 
governments, on the aggregate, or by the private sector, of $100 
million in any one year. The Act also requires a Federal agency to 
develop an effective process to permit timely input by elected 
officials of state, tribal, or local governments on a proposed 
``significant intergovernmental mandate,'' and requires an agency plan 
for giving notice and opportunity to provide timely input to 
potentially affected small governments before establishing any 
requirements that might significantly or uniquely affect small 
governments. DOE has determined that the proposed rule published today 
does not contain any Federal mandates affecting small governments, so 
these requirements do not apply.

I. Review Under Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy, Supply, Distribution, or Use), 66 FR 28355 
(May 22, 2001) requires preparation and submission to OMB of a 
Statement of Energy Effects for significant regulatory actions under 
Executive Order 12866 that are likely to have a significant adverse 
effect on the supply, distribution, or use of energy. DOE has 
determined that the proposed rule published today would not have a 
significant adverse effect on the supply, distribution, or use of 
energy and thus the requirement to prepare a Statement of Energy 
Effects does not apply.

J. Review Under the Treasury and General Government Appropriations Act, 
1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a 
``Family Policymaking Assessment'' for any proposed rule that may 
affect family well-being. The proposed rule has no impact on the 
autonomy or integrity of the family as an institution. Accordingly, DOE 
has concluded that it is not necessary to prepare a Family Policymaking 
Assessment.

K. Review Under the Treasury and General Government Appropriations Act, 
2001

    The Treasury and General Government Appropriations Act, 2001 (44 
U.S.C. 3516, note) provides for agencies to review most dissemination 
of information to the public under guidelines established by each 
agency pursuant to general guidelines issued by OMB. OMB's guidelines 
were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were 
published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed today's 
notice of proposed rulemaking under the OMB and DOE guidelines, and has 
concluded that it is consistent with applicable policies in those 
guidelines.

IV. Public Comment Procedures

A. Written Comments

    Interested individuals are invited to participate in this 
proceeding by submitting data, views, or arguments with respect to this 
proposed rule. Three copies of written comments should be submitted to 
the address indicated in the ADDRESSES section of this notice. To help 
the DOE review the submitted comments, commenters are

[[Page 68287]]

requested to reference the paragraph (e.g., Sec.  851.4(a)) to which 
they refer where possible.
    All information provided by commenters will be available for public 
inspection at the DOE Freedom of Information Reading Room, Room 1E-190, 
1000 Independence Avenue, SW., Washington, DC 20585 between the hours 
of 8:30 a.m. and 4:30 p.m., Monday through Friday, except Federal 
Holidays. The docket file material for this rulemaking will be under 
``EH-RM-03-WSH.''
    DOE also intends to enter all written comments on a Web site 
specially established for this proceeding. The Internet Web site is 
http://www.eh.doe.gov/whs/rulemaking. To assist DOE in making public 
comments available on a Web site, interested persons are to submit an 
electronic version of their written comments in accordance with the 
instructions in the DATES section of this notice of proposed 
rulemaking.
    If you submit information that you believe to be exempt by law from 
public disclosure, you should submit one complete copy, as well as two 
copies from which the information claimed to be exempt by law from 
public disclosure has been deleted. DOE is responsible for the final 
determination with regard to disclosure or nondisclosure of the 
information and for treating it accordingly under the Freedom of 
Information Act section on ``Handling Information of a Private 
Business, Foreign Government, or an International Organization,'' 10 
CFR 1004.11.

B. Public Hearings

    Public hearings will be held at the time, date, and place indicated 
in the DATES and ADDRESSES sections of this notice of proposed 
rulemaking. Any person who is interested in making an oral presentation 
should, by 4:30 p.m. on the date specified, make a phone request to the 
number in the DATES section of this notice of proposed rulemaking. The 
person should provide a daytime phone number where he or she may be 
reached. Persons requesting an opportunity to speak will be notified as 
to the approximate time they will be speaking. Each presentation is 
limited to 10 minutes. Persons making oral presentations should bring 
three copies of their statement to the hearing and submit them at the 
registration desk.
    DOE reserves the right to select the persons who will speak. In the 
event that requests exceed the time allowed, DOE also reserves the 
right to schedule speakers' presentations and to establish the 
procedures for conducting the hearing. A DOE official will be 
designated to preside at each hearing, which will not be judicial or 
evidentiary. Only those persons conducting the hearing may ask 
questions. Any further procedural rules needed to conduct the hearing 
properly will be announced by the DOE presiding official.
    A transcript of each hearing will be made available to the public. 
DOE will retain the record of the full hearing, including the 
transcript, and make it available on the Web site specially established 
for this proceeding. The Internet Web site is http://www.eh.doe.gov/whs/rulemaking. If DOE must cancel the hearing, it will make every 
effort to give advance notice.
    Prior to holding the public hearings, DOE intends to hold one or 
more informal information workshops to allow contractors, workers and 
their representatives to familiarize themselves with the proposed 
regulation. DOE expects to hold these workshops which could include 
video or telephone conferencing, approximately three weeks after 
publication of the proposed regulation and will make information on 
times and locations available as soon as arrangements are finalized.

List of Subjects

10 CFR Part 850

    Beryllium, Chronic beryllium disease, Hazardous substances, Lung 
diseases, Occupational safety and health, Reporting and recordkeeping 
requirements.

10 CFR Part 851

    Civil penalty, Federal buildings and facilities, Occupational 
safety and health, Safety, Reporting and recordkeeping requirements.

    Issued in Washington, DC, on December 2, 2003.
Beverly Cook,
Assistant Secretary of Environment, Safety, and Health.
    For the reasons set forth in the preamble, the Department of Energy 
proposes to amend chapter III of title 10 of the Code of Federal 
Regulations as follows:

PART 850--CHRONIC BERYLLIUM DISEASE PREVENTION PROGRAM

    1. The authority citation for part 850 is revised to read as 
follows:

    Authority: 42 U.S.C. 2201(i)(3), (p); 42 U.S.C. 2282c; 29 U.S.C. 
668; 42 U.S.C. 7101 et seq.; 50 U.S.C. 2401 et seq., E.O. 12196, 3 
CFR 1981 comp., at 145 as amended.

    2. Section 850.1 is revised to read as follows:


Sec.  850.1  Scope.

    This part provides for establishment of a chronic beryllium disease 
prevention program (CBDPP) that supplements and is deemed an integral 
part of the worker safety and health program under part 851 of this 
chapter.
    3. Section 850.4 is revised to read as follows:


Sec.  850.4  Enforcement.

    DOE may take appropriate steps pursuant to part 851 of this chapter 
to enforce compliance by contractors with this part and any DOE-
approved CBDPP.
    4. A new part 851 is added to chapter III to read as follows:

PART 851--WORKER SAFETY AND HEALTH

Subpart A--General Provisions
Sec.
851.1 Scope.
851.2 Exclusions.
851.3 Definitions.
851.4 Enforcement.
851.5 Information and records.
851.6 Compliance Order.
851.7 Interpretation.
851.8 Guidance documents.
851.9 DOE operated workplaces.
Subpart B--Worker Safety and Health Program
851.100 General rule.
851.101 Worker safety and health program.
851.102 DOE approval of worker safety and health program.
851.103 Worker rights.
Subpart C--Enforcement Process
851.200 Purpose.
851.201 Investigations and inspections.
851.202 Settlement.
851.203 Preliminary notice of violation.
851.204 Final notice of violation.
851.205 Administrative appeal.
851.206 Direction to NNSA contractors.

Appendix A to Part 851--Generally Acceptable Worker Safety and Health 
Standards and Programs

Appendix B to Part 851--General Statement of Enforcement Policy

    Authority: 42 U.S.C. 2201(i)(3), (p); 42 U.S.C. 2282c; 42 U.S.C. 
5801 et seq.; 42 U.S.C. 7101 et seq.; 50 U.S.C. 2401 et seq.

Subpart A--General Provisions


Sec.  851.1  Scope.

    This part governs the conduct of activities at DOE sites by or on 
behalf of DOE.


Sec.  851.2  Exclusions.

    (a) This part does not apply to a DOE site:

[[Page 68288]]

    (1) Regulated by the Occupational Safety and Health Administration 
(OSHA) on December 2, 2002; or
    (2) Operated under the authority of the Director, Naval Nuclear 
Propulsion, pursuant to Executive Order 12344, as set forth in Public 
Law 98-525, 42 U.S.C. 7158 note.
    (b) This part does not apply to radiological hazards to the extent 
regulated by 10 CFR parts 820, 830, or 835.


Sec.  851.3  Definitions.

    The following definitions apply to this part:
    AEA means the Atomic Energy Act of 1954, 42 U.S.C. 2011 et seq.
    Consent order means any written document, signed by the Director 
and a contractor, containing stipulations or conclusions of fact or law 
and a remedy acceptable to both DOE and the contractor.
    Contractor means any entity, including affiliated entities such as 
a parent corporation, under contract with DOE (or any subcontractor or 
supplier thereto).
    Covered workplace means a place where work is conducted by or on 
behalf of DOE where DOE has oversight responsibility for safety and 
health.
    DOE means the United States Department of Energy, including the 
National Nuclear Security Administration.
    DOE site means a DOE-owned or leased area or location where 
activities and operations are performed at one or more facilities or 
locations by or on behalf of DOE.
    Director means the DOE Official(s) to whom the Secretary has 
assigned the authority to investigate the nature and extent of 
compliance with the requirements of this part.
    Final notice of violation means a document that determines a 
contractor has violated or is continuing to violate a requirement of 
this part and includes:
    (1) A statement specifying the requirement of this part to which 
the violation relates;
    (2) A concise statement of the basis for the determination;
    (3) Any remedy, including the amount of any civil penalty; and
    (4) A statement explaining the reasoning behind any remedy.
    Final order means an order of DOE that represents final agency 
action and, where appropriate, imposes a remedy with which the 
recipient of the order must comply.
    General Counsel means the General Counsel of DOE.
    Guidance document means a document that sets forth information 
related to implementing or otherwise complying with a requirement of 
this part and that DOE has not adopted as a legally binding requirement 
through notice and comment rulemaking under the Administrative 
Procedure Act (5 U.S.C. 553).
    Interpretation means a statement by the General Counsel concerning 
the meaning or effect of a requirement of this part which relates to a 
specific factual situation but may also be a ruling of general 
applicability where the General Counsel determines such action to be 
appropriate.
    National security workplace means a covered workplace where 
national security missions are performed.
    NNSA means the National Nuclear Security Administration.
    Preliminary notice of violation means a document that sets forth 
the preliminary conclusions that a contractor has violated or is 
continuing to violate a requirement of this part and includes:
    (1) A statement specifying the requirement of this part to which 
the violation relates;
    (2) A concise statement of the basis for alleging the violation;
    (3) Any remedy, including the amount of any proposed civil penalty; 
and
    (4) A statement explaining the reasoning behind any proposed 
remedy.
    Program Secretarial Officer (PSO) means the Assistant Secretary, 
Deputy Administrator, Program Office Director, or equivalent DOE 
official who has primary line management responsibility for a 
contractor.
    Remedy means any action necessary or appropriate to rectify, 
prevent, or penalize a violation of a requirement of this part, 
including a compliance order, the assessment of civil penalties, the 
reduction of fees or other payments under a contract, the requirement 
of specific actions, or the modification, suspension or recission of a 
contract.
    Secretary means the Secretary of Energy.
    Transitional workplace means a covered workplace that is, or is 
expected to be, permanently closed and that is expected to be 
demolished, or title to which is expected to be transferred to another 
entity for reuse on behalf of an entity other than DOE.
    Worker means an employee who performs work at a covered workplace.
    Worker protection evaluation report means the report prepared by 
DOE to document the basis for approval by DOE of a worker safety and 
health program, including any conditions for approval.
    Worker safety and health program means a program that provides 
reasonable assurance of a safe and healthful workplace.
    Workplace hazard means a physical, chemical, or biological hazard 
with any potential to cause illness, injury, or death to a person.
    Workplace safety and health standard means a standard or program 
which addresses a workplace hazard by requiring conditions, or the 
adoption or use of one or more practices, means, methods, operations, 
or processes, reasonably necessary or appropriate to provide a safe and 
healthful workplace.


Sec.  851.4  Enforcement.

    (a) The requirements in this part are subject to enforcement by all 
appropriate means.
    (b) A contractor that violates (or whose employee violates) Sec.  
851.100 of this part is subject to a reduction in fees or other 
payments under a contract with DOE, pursuant to the contract's 
Conditional Payment of Fee clause.
    (c) A contractor who has entered into an agreement of 
indemnification under section 170d. of the AEA (or any subcontractor or 
supplier thereto) and who violates (or whose employee violates) any 
requirement of this part is subject to a civil penalty of not more than 
$70,000 for each such violation. If any violation under this subsection 
is a continuing violation, each day of the violation shall constitute a 
separate violation for the purpose of computing the civil penalty.
    (d) DOE may not penalize a contractor under both paragraphs (b) and 
(c) of this section for the same violation of a requirement of this 
part.
    (e) In the case of an entity described in subsection d. of section 
234A of the AEA, the total amount of contract penalties under paragraph 
(b) and civil penalties under paragraph (c) of this section in a fiscal 
year may not exceed the total amount of fees paid by DOE to that entity 
in that fiscal year.
    (f) DOE may not penalize a contractor under both sections 234A and 
234C of the AEA for the same violation.


Sec.  851.5  Information and records.

    (a) A contractor must maintain complete and accurate records as 
necessary to substantiate compliance with the requirements of this 
part.
    (b) A contractor may neither conceal nor destroy any information 
concerning noncompliance or potential noncompliance with the 
requirements of this part.
    (c) Any information pertaining to a requirement in this part 
provided to DOE by any contractor or maintained by any contractor for 
inspection by DOE shall be complete and accurate in all material 
respects.

[[Page 68289]]

    (d) Nothing in this part shall relieve any contractor from 
safeguarding classified, confidential, and controlled information, 
including Restricted Data or national security information, in 
accordance with the applicable provisions of federal statutes and the 
rules, regulations, and orders of any federal agency.


Sec.  851.6  Compliance Order.

    (a) The Secretary may issue to any contractor a Compliance Order 
that:
    (1) Identifies a situation that violates, potentially violates, or 
otherwise is inconsistent with a requirement of this part;
    (2) Mandates a remedy, work stoppage, or other action; and, (3) 
States the reasons for the remedy, work stoppage, or other action.
    (b) A Compliance Order is a final order that is effective 
immediately unless the Order specifies a different effective date.
    (c) Within 15 calendar days of the issuance of a Compliance Order, 
the recipient of the Order may request the Secretary to rescind or 
modify the Order. A request does not stay the effectiveness of a 
Compliance Order unless the Secretary issues an order to that effect.


Sec.  851.7  Interpretation.

    (a) The Office of the General Counsel is solely responsible for 
formulating and issuing any interpretation concerning a requirement in 
this part.
    (b) Any written or oral response to any written or oral question 
which is not provided pursuant to paragraph (a) of this section does 
not constitute an interpretation and does not provide any basis for 
action inconsistent with a requirement of this part.


Sec.  851.8  Guidance documents.

    (a) Except as provided in paragraph (c) of this section, a guidance 
document does not establish any requirement legally enforceable 
pursuant to this part.
    (b) Except as provided in paragraph (c) of this section, DOE may 
not conduct an inspection or investigation to determine compliance with 
this part on the basis of whether a contractor's actions or omissions 
are inconsistent with a guidance document.
    (c) A provision of a guidance document is legally enforceable 
pursuant to this part only to the extent it is explicitly:
    (1) Included by a contractor in the set of workplace safety and 
health standards identified pursuant to Sec.  851.101(c)(3)(ii)(B) of 
this part; or
    (2) Selected or used by a contractor as a procedure, control, or 
work process to perform work in a tailored manner for particular 
covered workplaces in accordance with Sec.  851.101(c)(4).


Sec.  851.9  DOE operated workplaces.

    With respect to a covered workplace operated by DOE, DOE must 
ensure work is performed consistent with the requirements of this part, 
including the establishment, maintenance and implementation of a worker 
safety and health program.

Subpart B--Worker Safety and Health Program


Sec.  851.100  General rule.

    The contractor responsible for a covered workplace must ensure:
    (a) The covered workplace is free from recognized hazards that are 
causing or are likely to cause death or serious bodily harm; and
    (b) Work is performed in accordance with the worker safety and 
health program for the covered workplace, as approved by DOE.


Sec.  851.101  Worker safety and health program.

    (a) A contractor responsible for one or more workplaces at a DOE 
site must establish and maintain a worker safety and health program for 
those workplaces.
    (b) A worker safety and health program must:
    (1) Provide for eliminating, limiting or mitigating the identified 
workplace hazards in a manner that is necessary and sufficient to 
provide adequate protection of workers; and
    (2) Be tailored to reflect the activities and hazards in particular 
work environments.
    (c) In establishing a worker safety and health program, a 
contractor must:
    (1) Identify and analyze, as appropriate at the site, facility, 
activity and workplace level:
    (i) The work to be performed;
    (ii) The work environment, including designs and features of 
facilities, equipment, operations and procedures important to a safe 
and healthful workplace;
    (iii) Existing and potential workplace hazards; and
    (iv) The risk of worker injury or illness associated with the 
identified workplace hazards.
    (2) Include a set of workplace safety and health standards that 
achieves a level of protection at least substantially equivalent to the 
level of protection that existed in comparable DOE workplaces in 2002;
    (3) Select and document the included set of workplace safety and 
health standards that are necessary and sufficient to provide adequate 
protection of workers:
    (i) With respect to beryllium, by incorporating the chronic 
beryllium disease prevention program adopted pursuant to part 850 of 
this chapter; and
    (ii) With respect to other workplace hazards identified and 
analyzed pursuant to (c)(1) of this section by identifying and 
incorporating a set of provisions that are necessary and sufficient to 
protect workers from the identified hazards, provided that the set is 
based on:
    (A) The workplace safety and health standards in Appendix A of this 
part;
    (B) Other workplace safety and health standards; or
    (C) A combination of the workplace safety and health standards in 
paragraphs (c)(3)(ii)(A) and (c)(3)(ii)(B) of this section.
    (4) Describe in sufficient detail how work will be performed in 
accordance with the set of selected workplace safety and health 
standards, including:
    (i) Selection process and use of procedures, controls, and work 
processes in a tailored manner for particular covered workplaces;
    (ii) Preference for implementation on the basis of the following 
hierarchy in descending order: engineering controls, administrative 
controls, work practices, and personal protective equipment; and
    (iii) Integration of the program on site, facility, activity and 
workplace levels, taking into account differences and similarities 
between the work, hazards, and workplace safety and health standards 
and, if applicable, coordination with other worker safety and health 
programs at the site;
    (5) Describe how feedback and continuous improvement will be 
provided for elements of the worker safety and health program.
    (6) Prioritize the abatement of hazards on the basis of risks to 
workers;
    (7) Address how the following features will be incorporated into 
the worker safety and health program:
    (i) Line management commitment;
    (ii) Information and training;
    (iii) Ongoing workplace monitoring and observation;
    (iv) Medical surveillance; and
    (v) Applicability to subcontractors. (d)(1) If a contractor is 
responsible for more than one covered workplace at a DOE site, the 
contractor must establish and maintain a single worker safety and 
health program for the workplaces at the site for which the contractor 
is responsible
    (2) If more than one contractor is responsible for covered 
workplaces at a DOE site, each contractor must:
    (i) Establish and maintain a worker safety and health program for 
the

[[Page 68290]]

workplaces for which the contractor is responsible; and
    (ii) Coordinate with the other contractors responsible for covered 
workplaces at the site to ensure that the worker safety and health 
programs at the site are integrated and consistent.
    (e) If a worker safety and health program sets forth a reasonable 
basis for characterizing particular workplaces as:
    (1) Transitional workplaces, it must provide sufficient flexibility 
to take into account the special circumstances of those workplaces; or
    (2) National security workplaces, it must provide sufficient 
flexibility to achieve national security missions in an efficient and 
timely manner in those workplaces.


Sec.  851.102  DOE approval of worker safety and health program.

    (a) Beginning one year after publication of the final rule, no work 
may be performed at a covered workplace unless the PSO has approved the 
worker safety and health program for the workplace through the issuance 
of a worker protection evaluation report that determines the worker 
safety and health program will achieve a level of protection at least 
substantially equivalent to the level of protection that existed in 
2002 for DOE workplaces comparable to those covered workplaces 
addressed by the program.
    (b) Within 180 days after publication of the final rule, a 
contractor responsible for establishing a worker safety and health 
program must submit for DOE approval a worker safety and health program 
that meets the requirements of this subpart.
    (c) A contractor must maintain a worker safety and health program 
by:
    (1) Evaluating and updating the worker safety and health program to 
reflect changes in the activities and hazards;
    (2) Annually submitting to DOE either an updated worker safety and 
health program for approval or a letter stating that no changes are 
necessary in the currently approved worker safety and health program; 
and
    (3) Incorporating in the worker safety and health program any 
changes, conditions, or workplace safety and health standards directed 
by DOE.


Sec.  851.103  Worker rights.

    A worker at a covered workplace has the right, without reprisal, 
to:
    (a) Participate in activities described in this section on official 
time;
    (b) Have access to:
    (1) DOE safety and health publications;
    (2) The DOE-approved worker safety and health program for the 
covered workplace; and
    (3) The standards, controls and procedures applicable to the 
covered workplace;
    (c) Observe monitoring or measuring of hazardous agents;
    (d) Have access to monitoring and measuring results and be notified 
when such results indicate the worker was overexposed to hazardous 
materials;
    (e) Accompany DOE personnel during an inspection of the workplace;
    (f) Request and receive results of inspections and accident 
investigations;
    (g) Express concerns related to worker safety and health;
    (h) Decline to perform an assigned task because of a reasonable 
belief that, under the circumstances, the task poses an imminent risk 
of death or serious bodily harm to the worker coupled with a reasonable 
belief that there is insufficient time to seek effective redress 
through the normal hazard reporting and abatement procedures;
    (i) Stop work, through the worker's supervisor, when the worker 
discovers employee exposures to imminently dangerous conditions or 
other serious hazards; provided that any stop work authority must be 
exercised in a justifiable and responsible manner in accordance with 
established procedures; and
    (j) Have access to an appropriate safety and health poster that 
informs the worker of relevant rights and responsibilities.

Subpart C--Enforcement Process


Sec.  851.200  Purpose.

    This subpart establishes the procedures for investigating the 
nature and extent of a violation of the requirements of this part, for 
determining whether a violation of a requirement of this part has 
occurred, and for imposing an appropriate remedy.


Sec.  851.201  Investigations and inspections.

    (a) The Director may initiate and conduct investigations and 
inspections relating to the scope, nature and extent of compliance by a 
contractor with the requirements of this part and take such action as 
the Director deems necessary and appropriate to the conduct of the 
investigation or inspection.
    (b) Any person may request the Director to initiate an 
investigation or inspection pursuant to paragraph (a) of this section. 
A request for an investigation or inspection sets forth the subject 
matter or activity to be investigated or inspected as fully as possible 
and includes supporting documentation and information.
    (c) The Director must inform any contractor that is the subject of 
an investigation or inspection in writing at the initiation of the 
investigation or inspection of the general purpose of the investigation 
or inspection.
    (d) DOE shall not disclose information or documents that are 
obtained during any investigation or inspection unless the Director 
directs or authorizes the public disclosure of the investigation. Upon 
such authorization, the information or documents are a matter of public 
record and disclosure is not precluded by the Freedom of Information 
Act, 5 U.S.C. 552 and part 1004 of this title.
    (e) A request for confidential treatment of information for 
purposes of the Freedom of Information Act does not prevent disclosure 
by the Director if the Director determines disclosure to be in the 
public interest and otherwise permitted or required by law.
    (f) During the course of an investigation or inspection, any 
contractor may submit any document, statement of facts or memorandum of 
law for the purpose of explaining the contractor's position or furnish 
information which the contractor considers relevant to a matter or 
activity under investigation or inspection.
    (g) The Director may convene an informal conference to discuss any 
situation that might be a violation of a requirement of this part, its 
significance and cause, any correction taken or not taken by the 
contractor, any mitigating or aggravating circumstances, and any other 
useful information. A conference is not normally open to the public and 
DOE does not make a transcript of the conference. The Director may 
compel a contractor to attend the conference.
    (h) If facts disclosed by an investigation or inspection indicate 
that further action is unnecessary or unwarranted, the Director may 
close the investigation without prejudice to further investigation or 
inspection at any time that circumstances so warrant.
    (i) If facts disclosed by an investigation or inspection indicate 
that corrective action is necessary or warranted, the Director may 
issue an enforcement letter that closes the investigation subject to 
the implementation of the corrective actions identified in the 
enforcement letter.
    (j) The Director may issue enforcement letters that communicate 
DOE's expectations with respect to any aspect of the requirements of 
this part, including identification and reporting of issues, corrective 
actions, and implementation of the contractor's

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safety and health program; provided that an enforcement letter may not 
create the basis for any legally enforceable requirement pursuant to 
this part.
    (k) The Director may sign, issue and serve subpoenas.


Sec.  851.202  Settlement.

    (a) DOE encourages settlement of a proceeding under this subpart at 
any time if the settlement is consistent with this part. The Director 
and a contractor may confer at any time concerning settlement. A 
settlement conference is not open to the public and DOE does not make a 
transcript of the conference.
    (b) Notwithstanding any other provision of this part, the Director 
may resolve any issues in an outstanding proceeding under this subpart 
with a consent order.
    (1) The Director and the contractor, or a duly authorized 
representative, must sign the consent order and indicate agreement to 
the terms contained therein.
    (2) A contractor does not need to admit in a consent order that a 
requirement of this part has been violated.
    (3) DOE does not need to make a finding in a consent order that a 
contractor has violated a requirement of this part.
    (4) A consent order must set forth the relevant facts which form 
the basis for the order and what remedy, if any, is imposed.
    (5) A consent order shall constitute a final order.


Sec.  851.203  Preliminary notice of violation.

    (a) Based on a determination by the Director that there is a 
reasonable basis to believe a contractor has violated or is continuing 
to violate a requirement of this part, the Director may issue a 
preliminary notice of violation to the contractor.
    (b) The Director must send a preliminary notice of violation by 
certified mail, return receipt requested.
    (c) A preliminary notice of violation must indicate:
    (1) The date, facts, and nature of each act or omission upon which 
each alleged violation is based;
    (2) The particular provision of the regulation involved in each 
alleged violation;
    (3) The proposed remedy for each alleged violation, including the 
amount of any civil penalty; and
    (4) The right of the contractor to submit a written reply to the 
Director within 30 calendar days of receipt of the preliminary notice 
of violation.
    (d) A reply to a preliminary notice of violation must contain a 
statement of all relevant facts pertaining to an alleged violation.
    (1) The reply must:
    (i) State any facts, explanations and arguments which support a 
denial of the alleged violation;
    (ii) Demonstrate any extenuating circumstances or other reason why 
a proposed remedy should not be imposed or should be mitigated;
    (iii) Discuss the relevant authorities which support the position 
asserted, including rulings, regulations, interpretations, and previous 
decisions issued by DOE; and
    (iv) Furnish full and complete answers to any questions set forth 
in the preliminary notice.
    (2) Copies of all relevant documents must be submitted with the 
reply.
    (e) If a contractor fails to submit a written reply within 30 
calendar days of receipt of a preliminary notice of violation:
    (1) The contractor relinquishes any right to appeal any matter in 
the preliminary notice; and
    (2) The preliminary notice, including any proposed remedies 
therein, constitutes a final order.


Sec.  851.204  Final notice of violation.

    (a) If a contractor submits a written reply within 30 calendar days 
of receipt of a preliminary notice of violation, the Director must 
review the submitted reply and make a final determination whether the 
contractor violated or is continuing to violate a requirement of this 
part.
    (b) Based on a determination by the Director that a contractor has 
violated or is continuing to violate a requirement of this part, the 
Director may issue to the contractor a final notice of violation that 
states concisely the determined violation and any remedy, including the 
amount of any civil penalty imposed on the contractor. The final notice 
of violation must state that the contractor may petition the Office of 
Hearings and Appeals for review of the final notice in accordance with 
10 CFR part 1003, subpart G.
    (c) The Director must send a final notice of violation by certified 
mail, return receipt requested.
    (d) If a contractor fails to submit a petition for review to the 
Office of Hearings and Appeals within 30 calendar days of receipt of a 
final notice of violation pursuant to Sec.  851.205:
    (1) The contractor relinquishes any right to appeal any matter in 
the final notice; and
    (2) The final notice, including any remedies therein, constitutes a 
final order.


Sec.  851.205  Administrative appeal.

    (a) Any contractor that receives a final notice of violation may 
petition the Office of Hearings and Appeals for review of the final 
notice in accordance with part 1003, subpart G of this title, within 30 
calendar days from receipt of the final notice.
    (b) In order to exhaust administrative remedies with respect to a 
final notice of violation, the contractor must petition the Office of 
Hearings and Appeals for review in accordance with paragraph (a) of 
this section.


Sec.  851.206  Direction to NNSA contractors.

    (a) Notwithstanding any other provision of this part, the NNSA 
Administrator, rather than the Director, signs, issues and serves the 
following actions that direct NNSA contractors:
    (1) Subpoenas;
    (2) Orders to compel attendance;
    (3) Disclosures of information or documents obtained during an 
investigation or inspection;
    (4) Preliminary notices of violations; and
    (5) Final notices of violations.
    (b) The NNSA Administrator shall act after consideration of the 
Director's recommendation.

Appendix A to Part 851--Generally Acceptable Worker Safety and Health 
Standards and Programs

I. Safety and Health Standards

    A. Title 29 of the Code of Federal Regulations (CFR), Part 1910, 
``Occupational Safety and Health Standards.''
    B. Title 29 CFR Part 1915, ``Shipyard Employment.''
    C. Title 29 CFR Part 1917, ``Marine Terminals.''
    D. Title 29 CFR Part 1918, ``Safety and Health Regulations for 
Longshoring.''
    E. Title 29 CFR Part 1926, ``Safety and Health Regulations for 
Construction.''
    F. Title 29 CFR Part 1928, ``Occupational Safety and Health 
Standards for Agriculture.''
    G. American Conference of Governmental Industrial Hygienists 
(ACGIH), ``Threshold Limit Values for Chemical Substances and 
Physical Agents and Biological Exposure Indices'' (most recent 
edition), when ACGIH Threshold Limit Values (TLVs) are lower (more 
protective) than Occupational Safety and Health Administration 
(OSHA) Permissible Exposure Limits. When ACGIH TLVs are used as 
exposure limits, DOE operations must nonetheless comply with the 
other provisions of any applicable OSHA-expanded health standard.
    H. Exposure limits and technical requirements of the American 
National Standards Institute (ANSI) Z136.1, Safe Use of Lasers.
    I. ANSI Z88.2, Practices for Respiratory Protection.
    J. ANSI Z49.1, Safety in Welding, Cutting and Allied Processes, 
Sections 4.3 and E4.3 (of the 1994 edition or equivalent sections of 
subsequent editions).

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    K. National Fire Protection Association (NFPA) 70, National 
Electrical Code.
    L. National Fire Protection Association 70E, Electrical Safety 
Requirements for Employee Workplaces.
    M. Appropriate etiologic agents guidelines and best practices. 
See most current edition of U.S. Department of Health and Human 
Services Centers for Disease Control and Prevention (CDC) 
Publication 93-8395, Biosafety in Microbiological and Biomedical 
Laboratories; National Institutes of Health (NIH) publication 
Guidelines for Research Involving Recombinant DNA Molecules; and 
World Health Organization (WHO) publication Guidelines for the Safe 
Transport of Infectious Substances and Diagnostic Specimens.

II. Safety and Health Programs

A. Construction Safety

    1. For each construction operation presenting hazards not 
experienced in previous project operations or for work performed by 
a different subcontractor, the construction contractor prepares a 
task analysis (job hazard analysis) and has it approved prior to 
commencement of affected work. These analyses identify foreseeable 
hazards and planned protective measures, provide drawings and/or 
other documentation of protective measures that a Professional 
Engineer or other competent person is required to prepare, and 
define the qualifications of competent persons required for 
workplace inspections.
    2. Inform workers of foreseeable hazards and the protective 
measures described within the approved task analysis prior to 
beginning work on the affected construction operation.
    3. During periods of active construction, the construction 
manager has a designated representative on site at all times to 
conduct and document daily inspections of the workplace; to identify 
and correct hazards and instances of noncompliance with project 
safety and health requirements. If immediate corrective action is 
not possible or the hazard falls outside of project scope, the 
construction contractor immediately notify affected workers, post 
appropriate warning signs, implement needed interim control 
measures, and notify the construction manager of actions taken.
    4. The construction contractor prepares and has approved prior 
to beginning any on-site project work a written project safety and 
health plan that gives a proposal for implementing the above 
information. The construction contractor also designates the 
individual(s) responsible for on-site implementation of the plan, 
specify qualifications for those individuals, and provide a list of 
those project operations for which a task analysis is to be 
performed.

B. Fire Protection

    1. Implement a comprehensive fire protection program that 
includes appropriate facility and site-wide fire protection, fire 
alarm notification and egress features, and access to a fully 
staffed, trained, and equipped fire department that is capable of 
responding in a timely and effective manner to site emergencies.
    2. An acceptable fire protection program includes those fire 
protection criteria and procedures, analyses, hardware and systems, 
apparatus and equipment, and personnel. This also includes meeting 
the applicable building code and National Fire Protection 
Association Codes and Standards or exceeding them (when necessary to 
meet safety objectives), unless DOE has granted explicit written 
relief.
    3. Fire watcher requirements in National Fire Protection 
Association (NFPA) 51B, Section 3-3.3 (of the 1994 edition or 
equivalent section of subsequent editions), are expanded to include 
responsibility for the safety of the welder(s) in addition to that 
of the facility.

C. Firearms Safety

    1. Establish firearms safety policies and procedures to address 
safety concerns and the personal protective equipment required. 
Establish procedures for: storage, handling, cleaning, and 
maintenance of firearms and associated ammunition; activities such 
as loading, unloading, and exchanging firearms; use of pyrotechnics 
and/or explosive projectiles; handling misfires and duds; live fire 
operations; and training and exercises using engagement simulation 
systems.
    2. Staff members responsible for the direction and operation of 
the firearms safety program are professionally qualified and have 
sufficient time and authority to implement the established program. 
Firearms instructors and armorers are Safeguards and Security 
Central Training Academy-certified to conduct the level of activity 
provided.
    3. Conduct formal appraisals assessing implementation of 
procedures, personnel responsibilities, and duty assignments to 
ensure overall policy objectives and performance criteria are being 
met by qualified safety personnel.
    4. Implement provisions related to firearms safety training, 
qualification, or re-qualification. Personnel successfully complete 
and demonstrate understanding of initial firearms safety training 
before being issued any firearms.
    (a) Personnel authorized to carry firearms have access to 
instruction manuals for each type of duty firearms with which they 
are armed while on duty. Authorized armed personnel demonstrate both 
technical and practical knowledge of firearms handling and safety on 
a semi-annual basis. This demonstration supported by limited scope 
performance tests, and documents the results of such testing.
    (b) All firearms training lesson plans incorporate safety for 
all aspects of firearms training task performance standards. The 
lesson plans follow the standards and criteria set forth by the 
Safeguards and Security Central Training Academy's standard training 
programs. Conduct safety briefings before any live fire training 
commences, in accordance with DOE M 473.2-1, Firearms Qualification 
Courses Manual.
    (c) Develop a safety analysis and have approved by the 
Operations Office Manager for the facilities and operation of each 
live fire range. Complete and have approved a safety analysis prior 
to implementation of any new training. Incorporate the results of 
these analyses into procedures, lesson plans, exercise plans, and 
limited scope performance tests.
    (d) Post site-specific firing range safety procedures at all 
ranges.
    (e) Request approval from the DOE Operations Office for the 
location and use of a live fire range.
    5. Transportation, handling, placarding, and storage of 
munitions conform to the applicable requirements of DOE M 440.1-1, 
DOE Explosives Safety Manual.

D. Explosives Safety

    Applicable explosives operations comply with DOE M 440.1-1. 
Contractor facility management determines the applicability of the 
requirements to research and development laboratory type operations 
consistent with the DOE level of protection criteria in the Manual. 
The administration and management of the Explosives Safety Manual 
and any deviations from it follows the process specified in Chapter 
I, Sections 3 and 4, of the Manual. Revisions to the Manual are made 
through concurrence of the DOE Explosives Safety Committee.

E. Industrial Hygiene

    Industrial hygiene programs include the following elements:
    1. Initial or baseline surveys of all work areas or operations 
to identify and evaluate potential worker health risks and periodic 
resurveys and/or exposure monitoring as appropriate.
    2. Coordination with planning and design personnel to anticipate 
and control health hazards that proposed facilities and operations 
would introduce.
    3. Documented exposure assessment for chemical, physical, and 
biological agents and ergonomic stressors using recognized exposure 
assessment methodologies and use of accredited industrial hygiene 
laboratories.
    4. Specification of appropriate controls based on the following 
hierarchy: engineering; work practices; and personal protective 
equipment to limit hazardous exposure to acceptable levels. Use of 
respiratory protection equipment tested under the DOE Respirator 
Acceptance Program when National Institute for Occupational Safety 
and Health-approved respiratory protection does not exist for DOE 
tasks. For security operations conducted in accordance with 
Presidential Directive Decision 39, U.S. Policy on Counter 
Terrorism, use of Department of Defense military type masks for 
respiratory protection by security personnel is acceptable.
    5. Professionally and technically qualified industrial 
hygienists to manage and implement the industrial hygiene program.

F. Occupational Medicine

    1. The earliest possible detection and mitigation of 
occupational illness and injury is the goal of these services. The 
physician responsible for delivery of medical services is 
responsible for the planning and implementation of the occupational 
medical program.
    2. Maintenance of a Healthful Work Environment.
    (a) The responsible physician performs targeted examinations 
based on an up-to-date knowledge of work site risk; identify 
potential or actual health effects resulting from worksite 
exposures; and communicate

[[Page 68293]]

the results of health evaluations to management and to those 
responsible for mitigating worksite hazards.
    (b) Contractor management provides to the physician employee job 
task and hazard analysis information; and summaries of potential 
worksite exposures of employees prior to mandatory health 
examinations.
    3. Employee Health Examinations. Health examinations are 
conducted by an occupational health examiner under the direction of 
a licensed physician in accordance with current sound and acceptable 
medical practices. The content of health examinations is the 
responsibility of the physician responsible for the delivery of 
medical services.
    (a) The following classes of examinations are for providing 
initial and continuing assessment of employee health: pre-placement 
in accordance with the Americans with Disabilities Act (42 U.S.C. 
12101); qualification examinations; fitness for duty; medical 
surveillance and health monitoring; return to work health 
evaluations; and termination examinations.
    (b) The physician or his/her designee informs contractor 
management of appropriate employee work restrictions.
    4. Monitored Care. Contractor management notifies the physician 
responsible for the delivery of medical services or his or her 
designee when an employee has been absent because of an injury or 
illness for more than 5 consecutive workdays or experiences 
excessive absenteeism.
    5. Employee Counseling and Health Promotion. The physician 
responsible for delivery of medical services reviews and approves 
the medical aspects of contractor-sponsored or -supported employee 
assistance, alcohol, and other substance abuse rehabilitation 
programs; approve and coordinate all contractor-sponsored or -
supported wellness programs; and ensure that immunization programs 
for blood-borne pathogens and biohazardous waste programs conform to 
OSHA regulations and Centers for Disease Control guidelines for 
those employees at risk to these forms of exposure.
    6. Medical Records. Develop and maintain an employee medical 
record for each employee for whom medical services are provided. 
Observe employee medical records confidentiality, adequately protect 
and permanently store them.
    7. Emergency and Disaster Preparedness. The physician 
responsible for the delivery of medical services is responsible for 
the medical portion of the site emergency and disaster plan. 
Integrate the medical portion with the overall site plan and with 
the surrounding community emergency and disaster plan.
    8. Organizational Staffing. Ensure that the physician 
responsible for the delivery of medical services is a graduate of a 
school of medicine or osteopathy who meets the licensing 
requirements applicable to the location in which the physician 
works. Occupational medical physicians, occupational health nurses, 
physician's assistants, nurse practitioners, psychologists, and 
other occupational health personnel are graduates of accredited 
schools and is licensed, registered, or certified as required by 
Federal or State law where employed.

G. Pressure Safety

    1. Establish safety policies and procedures to ensure pressure 
systems are designed, fabricated, tested, inspected, maintained, 
repaired, and operated by trained and qualified personnel in 
accordance with applicable and sound engineering principles.
    2. Ensure that all pressure vessels, boilers, air receivers, and 
supporting piping systems conform to the American Society of 
Mechanical Engineers (ASME) Boiler and Pressure Vessel Safety Code; 
the American National Standards Institute/ASME B.31 Piping Code; 
and/or the strictest applicable state and local codes.
    3. When national consensus codes are not applicable (because of 
pressure range, vessel geometry, use of special materials, etc.), 
implement measures to provide equivalent protection and ensure 
safety equal to or superior to the intent of the ASME code. Measures 
include the following:
    (a) Design drawings, sketches, and calculations are reviewed and 
approved by an independent design professional. Documented 
organizational peer review is acceptable.
    (b) Qualified personnel are used to perform examinations and 
inspections of materials, in-process fabrications, non-destructive 
tests, and acceptance tests.
    (c) Documentation, traceability, and accountability are 
maintained for each unique pressure vessel or system, including 
descriptions of design, pressure, testing, operation, repair, and 
maintenance.

H. Motor Vehicle Safety

    A. Motor Vehicle Safety Program protects the safety and health 
of all drivers and passengers in Government-owned or -leased motor 
vehicles and powered industrial equipment. The Motor Vehicle Safety 
Program is tailored for the individual DOE site or facility, based 
on an analysis of the needs of that particular site or facility, and 
addresses the following areas:
    1. Minimum licensing requirements (including appropriate testing 
and medical qualification) for personnel operating motor vehicles 
and powered industrial equipment.
    2. Requirements for the use of seat belts and provision of other 
safety devices.
    3. Training for specialty vehicle operators.
    4. Requirements for motor vehicle maintenance and inspection.
    5. Uniform traffic and pedestrian control devices and road 
signs.
    6. On-site speed limits and other traffic rules.
    7. Awareness campaigns and incentive programs to encourage safe 
driving.
    8. Enforcement provisions.

I. Biological Safety

    1. Comply with appropriate regulatory measures for the safe 
possession, handling, transfer, use, or receipt of biological 
agents, including select agents or toxins, at DOE facilities. See 42 
CFR part 73 Possession, Use and Transfer of Select Agents and 
Toxins, 9 CFR part 121 Possession, Use and Transfer of Biological 
Agents and Toxins, 7 CFR part 331 Possession, Use and Transfer of 
Biological Agents and Toxins, and 29 CFR 1910.1030, Occupational 
Exposures to Bloodborne Pathogens, and adhere to the guidance of the 
CDC publication, Biosafety in Microbiological and Biomedical 
Laboratories (BMBL), as noted in section I, paragraph M of this 
appendix.
    2. Establish an Institutional Biosafety Committee (IBC) or 
equivalent, which will be responsible for reviewing any work with 
biological agents, including select agents and toxins, for 
compliance with appropriate CDC, Department of Agriculture, NIH, 
requirements and WHO and other international, Federal, State and 
local guidelines and assessment of containment level, facilities, 
procedures, practices, and training and expertise of personnel. In 
addition, this committee should review for compliance the site 
security, safeguards, and emergency management plans and procedures 
as related to work with etiologic agents.
    3. Maintain a readily retrievable inventory and status of 
biological agents, including select agents and toxins and confirm 
compliance with the requirements of this appendix in a written 
statement to the head of the DOE field element within 60 days of 
incorporation of this appendix into the contract. Provide to the 
responsible field and area office, through the laboratory IBC (or 
its equivalent), an annual status report describing the status and 
inventory of biological agents, including select agents and toxins 
and program.
    4. Inform the head of the appropriate DOE field element of each 
Laboratory Registration/Select Agent Program registration 
application package requesting registration of a laboratory facility 
at Biosafety Level 2, 3, or 4, for the purpose of transferring, 
receiving, or handling select agents or toxins.
    5. Inform the head of the appropriate DOE field element of each 
CDC Form EA-101, Transfer of Select Agents, upon initial submission 
of the Form EA-101 to a vendor or other supplier requesting or 
ordering a select agent for possession, transfer, receipt, and 
handling in the registered facility. Inform DOE of final disposition 
and/or destruction of the select agent, within 10 days of completion 
of the Form EA-101.
    6. Confirm the site safeguards and security plans or security 
plan, and emergency management programs address biological agents, 
including select agents and toxins.
    7. Establish an immunization policy for personnel working with 
biological agents based on the recommendations contained in the U.S. 
Public Health Service Advisory Committee on Immunization Practices 
(ACIP) and as updated in the CDC Morbidity and Mortality Weekly 
Report. The ACIP provides basic guidance, but specific immunization 
actions should be based on the DOE facility evaluation of risk and 
benefit of immunization.

Appendix B to Part 851--General Statement of Enforcement Policy

I. Introduction

    (a) This policy statement sets forth the general framework 
through which the U.S. Department of Energy (DOE) will seek to 
ensure compliance with its worker safety and health regulations, 
and, in particular, exercise the civil penalty authority provided

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to DOE in section 3173 of Public Law 107-314, Bob Stump National 
Defense Authorization Act for Fiscal Year 2003 (December 2, 2002) 
(``NDAA''), amending the Atomic Energy Act (``AEA'') to add section 
234C. The policy set forth herein is applicable to violations of 
safety and health regulations in this part by DOE contractors, 
including DOE contractors who are indemnified under the Price 
Anderson Act, 42 U.S.C. 2210(d), and their subcontractors and 
suppliers (hereafter collectively referred to as DOE contractors). 
This policy statement is not a regulation and is intended only to 
provide general guidance to those persons subject to the regulations 
in this part. It is not intended to establish a ``cookbook'' 
approach to the initiation and resolution of situations involving 
noncompliance with the regulations in this part. Rather, DOE intends 
to consider the particular facts of each noncompliance situation in 
determining whether enforcement sanctions are appropriate and, if 
so, the appropriate magnitude of those sanctions. DOE may well 
deviate from this policy statement when appropriate in the 
circumstances of particular cases. This policy statement is not 
applicable to activities and facilities covered under E.O. 12344, 42 
U.S.C. 7158 note, pertaining to Naval Nuclear Propulsion, and other 
activities excluded from the scope of the rule.
    (b) The DOE goal in the compliance arena is to enhance and 
protect the safety and health of workers at DOE facilities by 
fostering a culture among both the DOE line organizations and the 
contractors that actively seeks to attain and sustain compliance 
with the regulations in this part. The enforcement program and 
policy have been developed with the express purpose of achieving 
safety inquisitiveness and voluntary compliance. DOE will establish 
effective administrative processes and positive incentives to the 
contractors for the open and prompt identification and reporting of 
noncompliances, performance of effective root cause analysis, and 
initiation of comprehensive corrective actions to resolve both 
noncompliance conditions and program or process deficiencies that 
led to noncompliance.
    (c) In the development of the DOE enforcement policy, DOE 
recognizes that the reasonable exercise of its enforcement authority 
can help to reduce the likelihood of serious incidents. This can be 
accomplished by providing greater emphasis on a culture of safety in 
existing DOE operations, and strong incentives for contractors to 
identify and correct noncompliance conditions and processes in order 
to protect human health and the environment. DOE wants to 
facilitate, encourage, and support contractor initiatives for the 
prompt identification and correction of problems. DOE will give due 
consideration to such initiatives and activities in exercising its 
enforcement discretion.
    (d) DOE may modify or remit civil penalties in a manner 
consistent with the mitigation and adjustment factors set forth in 
this policy with or without conditions. DOE will carefully consider 
the facts of each case of noncompliance and will exercise 
appropriate discretion in taking any enforcement action. Part of the 
function of a sound enforcement program is to assure a proper and 
continuing level of safety vigilance. The reasonable exercise of 
enforcement authority will be facilitated by the appropriate 
application of safety requirements to DOE facilities and by 
promoting and coordinating the proper contractor and DOE safety 
compliance attitude toward those requirements.

II. Purpose

    The purpose of the DOE enforcement program is to promote and 
protect the safety and health of workers at DOE facilities by:
    (a) Ensuring compliance by DOE contractors with the regulations 
in this part.
    (b) Providing positive incentives for DOE contractors:
    (1) Timely self-identification by contractors of worker safety 
deficiencies,
    (2) Prompt and complete reporting of such deficiencies to DOE,
    (3) Prompt correction of safety deficiencies in a manner that 
precludes recurrence, and,
    (4) Identification of modifications in practices or facilities 
that can improve worker safety and health.
    (c) Deterring future violations of DOE requirements by a DOE 
contractor.
    (d) Encouraging the continuous overall improvement of operations 
at DOE facilities.

III. Statutory Authority

    The Department of Energy Organization Act, 42 U.S.C. 7101-7385o, 
the Energy Reorganization Act of 1974 (ERA), 42 U.S.C. 5801-5911 and 
the Atomic Energy Act of 1954, as amended, (AEA) 42 U.S.C. 2011, 
require DOE to protect the public safety and health, as well as the 
safety of workers at DOE facilities, in conducting its activities, 
and grant DOE broad authority to achieve this goal. Section 234C of 
the AEA makes DOE contractors covered by the DOE Price-Anderson 
indemnification system, and their subcontractors and suppliers, 
subject to civil penalties for violations of the worker safety and 
health requirements promulgated in this part. 42 U.S.C. 2282c.

IV. Responsibilities

    (a) The Director, as the principal enforcement officer of the 
DOE, has been delegated the authority to conduct enforcement 
investigations and conferences, issue Notices of Violations and 
proposed civil penalties, Enforcement Letters, Consent Orders, 
subpoenas, orders to compel attendance and disclosure of information 
or documents obtained during an investigation or inspection. The 
Secretary issues Compliance Orders.
    (b) The NNSA Administrator, rather than the Director, signs, 
issues and serves the following actions that direct NNSA 
contractors: subpoenas; orders to compel attendance; disclosure of 
information or documents obtained during an investigation or 
inspection; Preliminary Notices of Violations; and Final Notices of 
Violations. The NNSA Administrator acts after consideration of the 
Director's recommendation.

V. Procedural Framework

    (a) Title 10 CFR part 851 sets forth the procedures DOE will use 
in exercising its enforcement authority, including the issuance of 
Notices of Violation and the resolution of an administrative appeal 
in the event a DOE contractor elects to petition the Office of 
Hearings and Appeals for review.
    (b) Pursuant to 10 CFR part 851 subpart C, the Director 
initiates the enforcement process by initiating and conducting 
investigations and inspections and issuing a Preliminary Notice of 
Violation (PNOV) with or without a proposed civil penalty. The DOE 
contractor is required to respond in writing to the PNOV within 30 
days, either admitting the violation and waiving its right to 
contest the proposed civil penalty and paying it, admitting the 
violation but asserting the existence of mitigating circumstances 
that warrant either the total or partial remission of the civil 
penalty, or denying that the violation has occurred and providing 
the basis for its belief that the PNOV is incorrect. After 
evaluation of the DOE contractor's response, the Director may 
determine that no violation has occurred, that the violation 
occurred as alleged in the PNOV but that the proposed civil penalty 
should be remitted in whole or in part, or that the violation 
occurred as alleged in the PNOV and that the proposed civil penalty 
is appropriate, notwithstanding the asserted mitigating 
circumstances. In the latter two instances, the Director will issue 
a Final Notice of Violation (FNOV) or an FNOV and proposed civil 
penalty.
    (c) An opportunity to challenge an FNOV is provided in 
administrative appeal provisions. 10 CFR 851.205. Any contractor 
that receives an FNOV may petition the Office of Hearings and 
Appeals for review of the final notice in accordance with 10 CFR 
part 1003, Subpart G, within 30 calendar days from receipt of the 
final notice. An administrative appeal proceeding is not initiated 
until the DOE contractor against which an FNOV has been issued 
requests an administrative hearing rather than waiving its right to 
contest the FNOV and proposed civil penalty, if any, and paying the 
civil penalty. However, it should be emphasized that DOE encourages 
the voluntary resolution of a noncompliance situation at any time, 
either informally prior to the initiation of the enforcement process 
or by consent order before or after any formal proceeding has begun.

VI. Severity of Violations

    (a) Violations of the worker safety and health requirements in 
this part have varying degrees of safety and health significance. 
Therefore, the relative importance of each violation must be 
identified as the first step in the enforcement process. Violations 
of the worker safety and health requirements are categorized in 
three levels of severity to identify their relative seriousness. 
Notices of Violation are issued for noncompliance which, when 
appropriate, propose civil penalties commensurate with the severity 
level of the violations involved.
    (b) To assess the potential safety and health impact of a 
particular violation, DOE will categorize violations of worker 
safety and health requirements as follows:

[[Page 68295]]

    (1) A Severity Level I violation is a serious violation. A 
serious violation shall be deemed to exist in a place of employment 
if there is a potential that death or serious physical harm could 
result from a condition which exists, or from one or more practices, 
means, methods, operations, or processes which have been adopted or 
are in use, in such place of employment. A Severity Level I 
violation would be subject to a base civil penalty of up to 100% of 
the maximum base civil penalty of $70,000.
    (2) A Severity Level II violation is an other-than-serious 
violation. An other-than-serious violation occurs where the most 
serious injury or illness that would potentially result from a 
hazardous condition cannot reasonably be predicted to cause death or 
serious physical harm to employees but does have a direct 
relationship to their safety and health. A Severity Level II 
violation would be subject to a base civil penalty up to 50% of the 
maximum base civil penalty ($35,000).
    (3) A Severity Level III violations is a de minimis violation. 
As a general matter, these minor violations will be identified as 
noncompliances and tracked to assure that appropriate remedial/
corrective action is taken to prevent their recurrence, and 
evaluated to determine if generic or specific problems exist. If 
circumstances demonstrate that a number of related minor 
noncompliances have occurred in a reasonable time frame (e.g. all 
identified during the same assessment), or that related minor 
noncompliances have recurred despite the DOE contractor's having had 
sufficient opportunity to correct the problem, DOE may choose in its 
discretion to consider the noncompliances in the aggregate as a more 
serious violation warranting a Severity Level III designation, a 
Notice of Violation and a possible civil penalty. A Severity Level 
III violation would be subject to a base civil penalty up to 10% of 
the maximum base civil penalty ($7,000).
    (c) Isolated minor violations of worker safety and health 
regulations will not be the subject of formal enforcement action 
through the issuance of a Notice of Violation.
    (d) The severity level of a violation will be dependent, in 
part, on the degree of culpability of the DOE contractor with regard 
to the violation. Thus, inadvertent or negligent violations will be 
viewed differently from those in which there is gross negligence, 
deception or willfulness. In addition to the significance of the 
underlying violation and level of culpability involved, DOE will 
also consider the position, training and experience of the person 
involved in the violation. Thus, for example, a violation may be 
deemed to be more significant if a senior manager of an organization 
is involved rather than a foreman or non-supervisory employee. In 
this regard, while management involvement, direct or indirect, in a 
violation may lead to an increase in the severity level of a 
violation and proposed civil penalty, the lack of such involvement 
will not constitute grounds to reduce the severity level of a 
violation or mitigate a civil penalty. Allowance of mitigation in 
such circumstances could encourage lack of management involvement in 
DOE contractor activities and a decrease in protection of worker 
safety and health.
    (e) Other factors which will be considered by DOE in determining 
the appropriate severity level of a violation are the duration of 
the violation, the past performance of the DOE contractor in the 
particular activity area involved, whether the DOE contractor had 
prior notice of a potential problem, and whether there are multiple 
examples of the violation in the same time frame rather than an 
isolated occurrence. The relative weight given to each of these 
factors in arriving at the appropriate severity level will be 
dependent on the circumstances of each case.
    (f) DOE expects contractors to provide full, complete, timely, 
and accurate information and reports. Accordingly, the severity 
level of a violation involving either failure to make a required 
report or notification to the DOE or an untimely report or 
notification will be based upon the significance of, and the 
circumstances surrounding, the matter that should have been 
reported. A contractor will not normally be cited for a failure to 
report a condition or event unless the contractor was actually aware 
or should have been aware of the condition or event which it failed 
to report.

VII. Enforcement Conferences

    (a) Should DOE determine, after completion of all assessment and 
investigation activities associated with a potential or alleged 
violation of the worker safety and health requirements, that there 
is a reasonable basis to believe that a violation has actually 
occurred, and the violation may warrant a civil penalty or issuance 
of an enforcement action, DOE will normally hold an enforcement 
conference with the DOE contractor involved prior to taking 
enforcement action. DOE may also elect to hold an enforcement 
conference for potential violations which would not ordinarily 
warrant a civil penalty or enforcement action but which could, if 
repeated, lead to such action. The purpose of the enforcement 
conference is to assure the accuracy of the facts upon which the 
preliminary determination to consider enforcement action is based, 
discuss the potential or alleged violations, their significance and 
causes, and the nature of and schedule for the DOE contractor's 
corrective actions, determine whether there are any aggravating or 
mitigating circumstances, and obtain other information which will 
help determine the appropriate enforcement action.
    (b) DOE contractors will be informed prior to a meeting when 
that meeting is considered to be an enforcement conference. Such 
conferences are informal mechanisms for candid pre-decisional 
discussions regarding potential or alleged violations and will not 
normally be open to the public. In circumstances for which immediate 
enforcement action is necessary in the interest of worker safety and 
health, such action will be taken prior to the enforcement 
conference, which may still be held after the necessary DOE action 
has been taken.

VIII. Enforcement Letter

    (a) In cases where DOE has decided not to conduct an 
investigation or inspection or issue a Preliminary Notice of 
Violation (PNOV), DOE may send an Enforcement Letter to the 
contractor signed by the Director. The Enforcement Letter is 
intended to communicate the basis of the decision not to pursue 
enforcement action for a noncompliance. The Enforcement Letter is 
intended to direct contractors to the desired level of worker safety 
and health performance. It may be used when DOE concludes the 
specific noncompliance at issue is not of the level of significance 
warranted to conduct an investigation or inspection or for issuance 
of a PNOV. Even where a noncompliance may be significant, the 
Enforcement Letter recognizes that the contractor's actions may have 
attenuated the need for enforcement action. The Enforcement Letter 
will typically recognize how the contractor handled the 
circumstances surrounding the noncompliance and address additional 
areas requiring the contractor's attention and DOE's expectations 
for corrective action. The Enforcement Letter notifies the 
contractor that when verification is received that corrective 
actions have been implemented, DOE will close the matter.
    (b) In general, Enforcement Letters communicate DOE's 
expectations with respect to any aspect of the requirements of this 
part, including identification and reporting of issues, corrective 
actions, and implementation of the contractor's safety and health 
program. DOE might, for example, wish to recognize some action of 
the contractor that is of particular benefit to worker safety and 
health that is a candidate for emulation by other contractors. On 
the other hand, DOE may wish to bring a program shortcoming to the 
attention of the contractor that, but for the lack of worker safety 
and health significance of the immediate issue, might have resulted 
in the issuance of a PNOV. An Enforcement Letter is not an 
enforcement action. An Enforcement Letter cannot provide the basis 
for a legally enforceable requirement pursuant to this part. 
Accordingly, a reference to a guidance document in an Enforcement 
Letter does not make the provisions of the guidance document 
mandatory or otherwise legally enforceable. There must be an 
independent basis for making provisions of a guidance document 
mandatory such as explicit incorporation in the worker safety and 
health program.
    (c) With respect to many noncompliances, an Enforcement Letter 
may not be required. When DOE decides that a contractor has 
appropriately corrected a noncompliance or that the significance of 
the noncompliance is sufficiently low, it may close out an 
investigation simply through an annotation in the DOE Noncompliance 
Tracking System (NTS). A closeout of a noncompliance with or without 
an Enforcement Letter may only take place after DOE has confirmed 
that corrective actions have been completed.

IX. Enforcement Actions

    (a) This section describes the enforcement sanctions available 
to DOE and specifies the conditions under which each may be used. 
The basic sanctions are Notices of Violation and civil penalties.
    (b) The nature and extent of the enforcement action is intended 
to reflect the

[[Page 68296]]

seriousness of the violation involved. For the vast majority of 
violations for which DOE assigns severity levels as described 
previously, a Notice of Violation will be issued, requiring a formal 
response from the recipient describing the nature of and schedule 
for corrective actions it intends to take regarding the violation.

1. Notice of Violation

    (a) A Notice of Violation (either a Preliminary or Final Notice) 
is a document setting forth the conclusion of DOE that one or more 
violations of the worker safety and health requirements has 
occurred. Such a notice normally requires the recipient to provide a 
written response which may take one of several positions described 
in section V of this policy statement. In the event that the 
recipient concedes the occurrence of the violation, it is required 
to describe corrective steps which have been taken and the results 
achieved; remedial actions which will be taken to prevent 
recurrence; and the date by which full compliance will be achieved.
    (b) DOE will use the Notice of Violation as the standard method 
for formalizing the existence of a violation and, in appropriate 
cases as described in this section, the Notice of Violation will be 
issued in conjunction with the proposed imposition of a civil 
penalty. In certain limited instances, as described in this section, 
DOE may refrain from the issuance of an otherwise appropriate Notice 
of Violation. However, a Notice of Violation will virtually always 
be issued for willful violations, if past corrective actions for 
similar violations have not been sufficient to prevent recurrence 
and there are no other mitigating circumstances, or if the 
circumstances otherwise warrant increasing lower severity level 
violations to a higher severity level.
    (c) DOE contractors are not ordinarily cited for violations 
resulting from matters not within their control, such as equipment 
failures that were not avoidable by reasonable quality assurance 
measures, proper maintenance, or management controls. With regard to 
the issue of funding, however, DOE does not consider an asserted 
lack of funding to be a justification for noncompliance with the 
worker safety and health requirements.
    (d) DOE expects the contractors which operate its facilities to 
have the proper management and supervisory systems in place to 
assure that all activities at DOE facilities, regardless of who 
performs them, are carried out in compliance with all the worker 
safety and health requirements. Therefore, contractors are normally 
held responsible for the acts of their employees and subcontractor 
employees in the conduct of activities at DOE facilities. 
Accordingly, this policy should not be construed to excuse personnel 
errors.
    (e) The limitations on remedies under Sec. 234C will be 
implemented as follows:
    (1) DOE may assess civil penalties of not more than $70,000 per 
violation per day on contractors (and their subcontractors and 
suppliers) that are indemnified by the Price-Anderson Act, 42 U.S.C. 
2210(d). 10 CFR 851.4(c). DOE will not assess civil penalties on 
contractors (and their subcontractors and suppliers) that are not 
indemnified under the Price-Anderson Act.
    (2) DOE may seek contract fee reductions through the contract's 
Conditional Payment of Fee Clause in the Department of Energy 
Acquisition Regulation (DEAR). See 10 CFR 851.4(b); 48 CFR parts 
923, 952, 970. Policies for contract fee reductions are not 
established by this policy statement. The contracting officer must 
coordinate with the Director, the DOE Official to whom the Secretary 
has assigned the authority to investigate the nature and extent of 
compliance with the requirements of this part, before pursuing 
contract fee reduction in the event of a violation relating to the 
enforcement of worker safety and health concerns. Likewise, the 
Director must coordinate with the contracting officer when 
conducting investigations and pursuing an enforcement action.
    (3) For the same violation of a worker safety and health 
requirement in this part, DOE may pursue either civil penalties (for 
indemnified contractors and their subcontractors and suppliers) or a 
contract fee reduction, but not both. 10 CFR 851.4(d).
    (4) An upper ceiling applies to civil penalties assessed on 
certain contractors specifically listed in 170d. of the Atomic 
Energy Act, 42 U.S.C. 2282a(d), for activities conducted at 
specified facilities. For these contractors, the total amount of 
civil penalties and contract penalties in a fiscal year may not 
exceed the total amount of fees paid by DOE to that entity in that 
fiscal year. 10 CFR 851.4(e).
    (5) DOE will not issue civil penalties under both this part and 
under the nuclear safety procedural regulations in 10 CFR part 820 
for the same violation. 10 CFR 851.4(f).
    (f) Regarding the relationship of civil penalties and contract 
fee reductions where DOE may elect between remedies, DOE generally 
intends to use civil penalties as the remedy for most violations. 
Where DOE may elect between remedies, the Director may refer a 
violation to the appropriate DOE official responsible for 
administering the Conditional Payment of Fee clause to consider 
invoking the provisions for reducing contract fees if the violation 
is especially egregious or indicates a general failure to perform 
under the contract with respect to worker safety and health. In 
determining whether to refer a violation, the Director generally 
would focus on factors such as willfulness, repeated violations, 
death, serious injury, patterns of systemic violations, flagrant 
DOE-identified violations, repeated poor performance in an area of 
concern, or serious breakdown in management controls. Such factors 
involved in a violation would call into question a contractor's 
commitment and ability to achieve the fundamental obligation of 
providing safe and healthy workplaces for workers.

2. Civil Penalty

    (a) A civil penalty is a monetary penalty that may be imposed 
for violations of requirements of this part. See 10 CFR 851.4(b). 
Civil penalties are designed to emphasize the need for lasting 
remedial action, deter future violations, and underscore the 
importance of DOE contractor self-identification, reporting and 
correction of violations of the worker safety and health 
requirements in this part.
    (b) Absent mitigating circumstances as described below, or 
circumstances otherwise warranting the exercise of enforcement 
discretion by DOE as described in this section, civil penalties will 
be proposed for Severity Level I and II violations.
    (c) DOE will impose different base level penalties considering 
the severity level of the violation by Price-Anderson indemnified 
contractors. Table 1 shows the daily base civil penalties for the 
various categories of severity levels. However, as described above 
in section IV, the imposition of civil penalties will also take into 
account the gravity, circumstances, and extent of the violation or 
violations and, with respect to the violator, any history of prior 
similar violations and the degree of culpability and knowledge.
    (d) Regarding the factor of ability of DOE contractors to pay 
the civil penalties, it is not DOE's intention that the economic 
impact of a civil penalty be such that it puts a DOE contractor out 
of business. Contract termination, rather than civil penalties, is 
used when the intent is to terminate these activities. The deterrent 
effect of civil penalties is best served when the amount of such 
penalties takes this factor into account. However, DOE will evaluate 
the relationship of affiliated entities to the contractor (such as 
parent corporations) when the contractor asserts that it cannot pay 
the proposed penalty.
    (e) DOE will review each case involving a proposed civil penalty 
on its own merits and adjust the base civil penalty values upward or 
downward appropriately. As indicated above, Table 1 identifies the 
daily base civil penalty values for different severity levels. After 
considering all relevant circumstances, civil penalties may be 
raised or lowered based upon the adjustment factors described below 
in this section. In no instance will a civil penalty for any one 
violation exceed the statutory limit of $70,000. However, it should 
be emphasized that if the DOE contractor is or should have been 
aware of a violation and has not reported it to DOE and taken 
corrective action despite an opportunity to do so, each day the 
condition existed may be considered a separate violation and, as 
such, subject to a separate civil penalty. Further, as described in 
this section, the duration of a violation will be taken into account 
in determining the appropriate severity level of the base civil 
penalty.

              Table 1--Severity Level Base Civil Penalties
------------------------------------------------------------------------
                                              Base civil penalty amount
              Severity level                 (percentage of maximum  per
                                                 violation per day)
------------------------------------------------------------------------
I.........................................                           100
II........................................                            50
III.......................................                            10
------------------------------------------------------------------------

3. Adjustment Factors

    (a) DOE's enforcement program is not an end in itself, but a 
means to achieve

[[Page 68297]]

compliance with the worker safety and health requirements in this 
part, and civil penalties are to emphasize the importance of 
compliance and to deter future violations. The single most important 
goal of the DOE enforcement program is to encourage early 
identification and reporting of worker protection deficiencies and 
violations of the worker safety and health requirements in this part 
by the DOE contractors themselves rather than by DOE, and the prompt 
correction of any deficiencies and violations so identified. DOE 
believes that DOE contractors are in the best position to identify 
and promptly correct noncompliance with the worker safety and health 
requirements in this part. DOE expects that these contractors should 
have in place internal compliance programs which will ensure the 
detection, reporting and prompt correction of worker protection 
related problems that may constitute, or lead to, violations of the 
worker safety and health requirements in this part, before, rather 
than after, DOE has identified such violations. Thus, DOE 
contractors will almost always be aware of worker safety and health 
problems before they are discovered by DOE. Obviously, worker safety 
and health is enhanced if deficiencies are discovered (and promptly 
corrected) by the DOE contractor, rather than by DOE, which may not 
otherwise become aware of a deficiency until later on, during the 
course of an inspection, performance assessment, or following an 
incident at the facility. Early identification of worker safety and 
health-related problems by DOE contractors has the added benefit of 
allowing information which could prevent such problems at other 
facilities in the DOE complex to be shared with all appropriate DOE 
contractors.
    (b) Pursuant to this enforcement philosophy, DOE will provide 
substantial incentive for the early self-identification, reporting 
and prompt correction of problems which constitute, or could lead 
to, violations of the worker safety and health requirements. Thus, 
application of the adjustment factors set forth below may result in 
a reduced or no civil penalty being assessed for violations that are 
identified, reported, and promptly and effectively corrected by the 
DOE contractor.
    (c) On the other hand, ineffective programs for problem 
identification and correction are unacceptable. Thus, for example, 
where a contractor fails to disclose and promptly correct violations 
of which it was aware or should have been aware, substantial civil 
penalties are warranted and may be sought, including the assessment 
of civil penalties for continuing violations on a per day basis.
    (d) Further, in cases involving factors of willfulness, repeated 
violations, death, serious injury, patterns of systemic violations, 
flagrant DOE-identified violations, repeated poor performance in an 
area of concern, or serious breakdown in management controls, DOE 
intends to apply its full statutory enforcement authority where such 
action is warranted.

4. Identification and Reporting

    Reduction of the base civil penalty shown in Table 1 may be 
given when a DOE contractor identifies the violation and promptly 
reports the violation to the DOE. In weighing this factor, 
consideration will be given to, among other things, the opportunity 
available to discover the violation, the ease of discovery and the 
promptness and completeness of any required report. No consideration 
will be given to a reduction in penalty if the DOE contractor does 
not take prompt action to report the problem to DOE upon discovery, 
or if the immediate actions necessary to restore compliance with the 
worker safety and health requirements are not taken.

5. Self-Identification and Tracking Systems

    (a) DOE strongly encourages contractors to self-identify 
noncompliances with the worker safety and health requirements before 
the noncompliances lead to a string of similar and potentially more 
significant events or consequences. When a contractor identifies a 
noncompliance through its own self-monitoring activity, DOE will 
normally allow a reduction in the amount of civil penalties, unless 
prior opportunities existed for contractors to identify the 
noncompliance. DOE will normally not allow a reduction in civil 
penalties for self-identification if significant DOE intervention 
was required to induce the contractor to report a noncompliance.
    (b) Self-identification of a noncompliance is possibly the 
single most important factor in considering a reduction in the civil 
penalty amount. Consideration of self-identification is linked to, 
among other things, whether prior opportunities existed to discover 
the violation, and if so, the age and number of such opportunities; 
the extent to which proper contractor controls should have 
identified or prevented the violation; whether discovery of the 
violation resulted from a contractor's self-monitoring activity; the 
extent of DOE involvement in discovering the violation or in 
prompting the contractor to identify the violation; and the 
promptness and completeness of any required report. Self-
identification is also considered by DOE in deciding whether to 
pursue an investigation.
    (c) DOE will use the voluntary Noncompliance Tracking System 
(NTS) which allows contractors to elect to report noncompliances. In 
the guidance document supporting the NTS, DOE will establish 
reporting thresholds for reporting items of noncompliance of 
potentially greater worker safety and health significance into the 
NTS. Contractors may, however, use their own self-tracking systems 
to track noncompliances below the reporting threshold. This self-
tracking is considered to be acceptable self-reporting as long as 
DOE has access to the contractor's system and the contractor's 
system notes the item as a noncompliance with a DOE safety and 
health requirement. For noncompliances that are below the 
reportability thresholds, DOE will credit contractor self-tracking 
as representing self-reporting. If an item is not reported in NTS 
but only tracked in the contractor's system and DOE subsequently 
finds the facts and their worker safety and health significance have 
been significantly mischaracterized, DOE will not credit the 
internal tracking as representing appropriate self-reporting.

6. Self-Disclosing Events

    (a) DOE expects contractors to demonstrate acceptance of 
responsibility for worker safety and health by proactively 
identifying noncompliance conditions in their programs and 
processes. In deciding whether to reduce any civil penalty proposed 
for violations revealed by the occurrence of a self-disclosing 
event, DOE will consider the ease with which a contractor could have 
discovered the noncompliance and the prior opportunities that 
existed to discover the noncompliance. When the occurrence of an 
event discloses noncompliances that the contractor could have or 
should have identified before the event, DOE will not generally 
allow a reduction in civil penalties for self-identification, even 
if the underlying noncompliances were reported to DOE. If a 
contractor simply reacts to events that disclose potentially 
significant consequences or downplays noncompliances which did not 
result in significant consequences to worker safety and health, such 
contractor actions do not lead to the improvement in worker safety 
and health contemplated by Part 851.
    (b) The key test is whether the contractor reasonably could have 
detected any of the underlying noncompliances that contributed to 
the event. Examples of events that provide opportunities to identify 
noncompliances include, but are not limited to:
    (1) Prior notifications of potential problems such as those from 
DOE operational experience publications or vendor equipment 
deficiency reports;
    (2) Normal surveillance, quality assurance assessments, and 
post-maintenance testing;
    (3) Readily observable parameter trends; and
    (4) Contractor employee or DOE observations of potential worker 
safety and health problems.
    (c) Failure to utilize these types of events and activities to 
address noncompliances may result in higher civil penalty 
assessments or a DOE decision not to reduce civil penalty amounts.
    (d) Alternatively, if, following a self-disclosing event, DOE 
finds that the contractor's processes and procedures were adequate 
and the contractor's personnel generally behaved in a manner 
consistent with the contractor's processes and procedures, DOE could 
conclude that the contractor could not have been reasonably expected 
to find the single procedural noncompliance that led to the event 
and thus, might allow a reduction in civil penalties.

7. Corrective Action To Prevent Recurrence

    The promptness (or lack thereof) and extent to which the DOE 
contractor takes corrective action, including actions to identify 
root cause and prevent recurrence, may result in an increase or 
decrease in the base civil penalty shown in Table 1. For example, 
very extensive corrective action may result in DOE's reducing the 
proposed civil penalty from the base value shown in Table 1. On the 
other hand, the civil penalty may be increased if initiation of 
corrective action is not prompt or if the corrective action is only 
minimally acceptable. In weighing this factor, consideration will be

[[Page 68298]]

given to, among other things, the appropriateness, timeliness and 
degree of initiative associated with the corrective action. The 
comprehensiveness of the corrective action will also be considered, 
taking into account factors such as whether the action is focused 
narrowly to the specific violation or broadly to the general area of 
concern.

8. DOE's Contribution to a Violation

    There may be circumstances in which a violation of a DOE worker 
safety and health requirement results, in part or entirely, from a 
direction given by DOE personnel to a DOE contractor to either take 
or forbear from taking an action at a DOE facility. In such cases, 
DOE may refrain from issuing an NOV, or may mitigate, either 
partially or entirely, any proposed civil penalty, provided that the 
direction upon which the DOE contractor relied is documented in 
writing, contemporaneously with the direction. It should be 
emphasized, however, that pursuant to 10 CFR 851.7, no 
interpretation of a requirement of this part is binding upon DOE 
unless issued in writing by the Office of the General Counsel. 
Further, as discussed above in this policy statement, lack of 
funding by itself will not be considered as a mitigating factor in 
enforcement actions.

9. Exercise of Discretion

    Because DOE wants to encourage and support DOE contractor 
initiative for prompt self-identification, reporting and correction 
of problems, DOE may exercise discretion as follows:
    (a) In accordance with the previous discussion, DOE may refrain 
from issuing a civil penalty for a violation which meets all of the 
following criteria:
    (1) The violation is promptly identified and reported to DOE 
before DOE learns of it or the violation is identified by a DOE 
independent assessment, inspection or other formal program effort.
    (2) The violation is not willful or a violation that could 
reasonably be expected to have been prevented by the DOE 
contractor's corrective action for a previous violation.
    (3) The DOE contractor, upon discovery of the violation, has 
taken or begun to take prompt and appropriate action to correct the 
violation.
    (4) The DOE contractor has taken, or has agreed to take, 
remedial action satisfactory to DOE to preclude recurrence of the 
violation and the underlying conditions which caused it.
    (b) DOE will not issue a Notice of Violation for cases in which 
the violation discovered by the DOE contractor cannot reasonably be 
linked to the conduct of that contractor in the design, construction 
or operation of the DOE facility involved, provided that prompt and 
appropriate action is taken by the DOE contractor upon 
identification of the past violation to report to DOE and remedy the 
problem.
    (c) In situations where corrective actions have been completed 
before termination of an inspection or assessment, a formal response 
from the contractor is not required and the inspection or integrated 
performance assessment report serves to document the violation and 
the corrective action. However, in all instances, the contractor is 
required to report the noncompliance through established reporting 
mechanisms so the noncompliance issue and any corrective actions can 
be properly tracked and monitored.
    (d) If DOE initiates an enforcement action for a violation, and 
as part of the corrective action for that violation, the DOE 
contractor identifies other examples of the violation with the same 
root cause, DOE may refrain from initiating an additional 
enforcement action. In determining whether to exercise this 
discretion, DOE will consider whether the DOE contractor acted 
reasonably and in a timely manner appropriate to the safety 
significance of the initial violation, the comprehensiveness of the 
corrective action, whether the matter was reported, and whether the 
additional violation(s) substantially change the safety significance 
or character of the concern arising out of the initial violation.
    (e) It should be emphasized that the preceding paragraphs are 
solely intended to be examples indicating when enforcement 
discretion may be exercised to forego the issuance of a civil 
penalty or, in some cases, the initiation of any enforcement action 
at all. However, notwithstanding these examples, a civil penalty may 
be proposed or Notice of Violation issued when, in DOE's judgment, 
such action is warranted on the basis of the circumstances of an 
individual case.

X. Inaccurate and Incomplete Information

    (a) A violation of the worker safety and health requirements to 
provide complete and accurate information to DOE, 10 CFR 851.5, can 
result in the full range of enforcement sanctions, depending upon 
the circumstances of the particular case and consideration of the 
factors discussed in this section. Violations involving inaccurate 
or incomplete information or the failure to provide significant 
information identified by a DOE contractor normally will be 
categorized based on the guidance in section VI, ``Severity of 
Violations.''
    (b) DOE recognizes that oral information may in some situations 
be inherently less reliable than written submittals because of the 
absence of an opportunity for reflection and management review. 
However, DOE must be able to rely on oral communications from 
officials of DOE contractors concerning significant information. In 
determining whether to take enforcement action for an oral 
statement, consideration will be given to such factors as:
    (1) The degree of knowledge that the communicator should have 
had regarding the matter in view of his or her position, training, 
and experience;
    (2) The opportunity and time available prior to the 
communication to assure the accuracy or completeness of the 
information;
    (3) The degree of intent or negligence, if any, involved;
    (4) The formality of the communication;
    (5) The reasonableness of DOE reliance on the information;
    (6) The importance of the information that was wrong or not 
provided; and
    (7) The reasonableness of the explanation for not providing 
complete and accurate information.
    (c) Absent gross negligence or willfulness, an incomplete or 
inaccurate oral statement normally will not be subject to 
enforcement action unless it involves significant information 
provided by an official of a DOE contractor. However, enforcement 
action may be taken for an unintentionally incomplete or inaccurate 
oral statement provided to DOE by an official of a DOE contractor or 
others on behalf of the DOE contractor, if a record was made of the 
oral information and provided to the DOE contractor thereby 
permitting an opportunity to correct the oral information, such as 
if a transcript of the communication or meeting summary containing 
the error was made available to the DOE contractor and was not 
subsequently corrected in a timely manner.
    (d) When a DOE contractor has corrected inaccurate or incomplete 
information, the decision to issue a citation for the initial 
inaccurate or incomplete information normally will be dependent on 
the circumstances, including the ease of detection of the error, the 
timeliness of the correction, whether DOE or the DOE contractor 
identified the problem with the communication, and whether DOE 
relied on the information prior to the correction. Generally, if the 
matter was promptly identified and corrected by the DOE contractor 
prior to reliance by DOE, or before DOE raised a question about the 
information, no enforcement action will be taken for the initial 
inaccurate or incomplete information. On the other hand, if the 
misinformation is identified after DOE relies on it, or after some 
question is raised regarding the accuracy of the information, then 
some enforcement action normally will be taken even if it is in fact 
corrected.
    (e) If the initial submission was accurate when made but later 
turns out to be erroneous because of newly discovered information or 
advances in technology, a citation normally would not be appropriate 
if, when the new information became available, the initial 
submission was promptly corrected.
    (f) The failure to correct inaccurate or incomplete information 
that the DOE contractor does not identify as significant normally 
will not constitute a separate violation. However, the circumstances 
surrounding the failure to correct may be considered relevant to the 
determination of enforcement action for the initial inaccurate or 
incomplete statement. For example, an unintentionally inaccurate or 
incomplete submission may be treated as a more severe matter if a 
DOE contractor later determines that the initial submission was in 
error and does not promptly correct it or if there were clear 
opportunities to identify the error.

XI. Secretarial Notification and Consultation

    The Secretary will be provided written notification of all 
enforcement actions involving proposed civil penalties. The 
Secretary will be consulted prior to taking action in the following 
situations:
    (a) Any action the Director, or the NNSA Administrator 
concerning actions involving

[[Page 68299]]

NNSA contractors, believes warrants the Secretary's involvement; or
    (b) Any proposed enforcement action for which the Secretary asks 
to be consulted.

[FR Doc. 03-30287 Filed 12-5-03; 8:45 am]
BILLING CODE 6450-01-P