[Federal Register Volume 70, Number 16 (Wednesday, January 26, 2005)]
[Proposed Rules]
[Pages 3812-3835]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-1203]



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Part III





Department of Energy





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10 CFR Part 851



Worker Safety and Health Program; Proposed Rule

  Federal Register / Vol. 70, No. 16 / Wednesday, January 26, 2005 / 
Proposed Rules  

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DEPARTMENT OF ENERGY

10 CFR Part 851

[Docket No. EH-RM-04-WSHP]
RIN 1901-AA99


Worker Safety and Health Program

AGENCY: Office of Environment, Safety and Health, Department of Energy.

ACTION: Supplemental notice of proposed rulemaking and opportunity for 
public comment.

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SUMMARY: The Department of Energy (DOE) is issuing a supplemental 
proposal to implement the statutory mandate of section 3173 of the Bob 
Stump National Defense Authorization Act for Fiscal Year 2003 to 
establish worker safety and health regulations to govern contractor 
activities at DOE workplaces. The supplemental proposal reflects 
consultations with the Defense Nuclear Facilities Safety Board (DNFSB), 
as well as comments received from members of the public.

DATES: The comment period will end on April 26, 2005. Public hearings 
will be held on March 29 and 30, 2005 from 9 a.m. to 12 p.m. and from 
1:30 p.m. to 5 p.m. Requests to speak at the hearings should be phoned 
in to Jacqueline D. Rogers, 202-586-4714, by March 28, 2005. Each 
presentation is limited to 10 minutes.

ADDRESSES: Written comments (three copies) should be addressed to: 
Jacqueline D. Rogers, U.S. Department of Energy, Docket Number EH-RM-
03-WSH; Room GA-098, 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.
    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/rulemakingwsh.
    The public hearings for this rulemaking will be held in Washington, 
DC at the Holiday Inn-Washington Capitol, 550 C Street, SW., 
Washington, DC 20024.
    For more information concerning public participation in this 
rulemaking proceeding, see Section IV of this notice (Public Comment 
Procedures).

FOR FURTHER INFORMATION CONTACT: Jacqueline D. Rogers, U.S. Department 
of Energy, Room GA-089, 1000 Independence Avenue, SW., Washington DC 
20585-0270, 202-586-4714, e-mail: [email protected].

SUPPLEMENTARY INFORMATION:

I. Introduction.
II. Supplemental Proposal.
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. Reviews 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 Hearings.

I. Introduction

    DOE has broad authority to regulate worker safety and health 
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. DOE currently exercises 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 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. 
Specifically, the Laws, Regulations and DOE Directives clause set forth 
in the DOE procurement regulations requires the incorporation of 
applicable DOE Orders into a contract unless a contractor develops a 
tailored set of standards and obtains DOE approval to incorporate this 
tailored set in place of the applicable DOE Orders.
    In 2002, Congress directed DOE to promulgate regulations on worker 
safety and health to govern the conduct of contractors with Price-
Anderson indemnification agreements in their contracts. Specifically, 
section 3173 of the National Defense Authorization Act (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; to take into 
account special circumstances for facilities permanently closed, 
demolished, or title transferred; achieve national security missions.'' 
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.
    On December 8, 2003, DOE published a notice of proposed rulemaking 
to implement section 3173 of the NDAA (68 FR 68276). The December 
proposal was intended to codify existing DOE practices in order to 
ensure the worker health and safety regulations would provide DOE 
workers a level of protection equivalent to that currently afforded 
them. Specifically, under the December proposal, a contractor would 
comply with either a set of requirements based primarily on the 
provisions of DOE Order 440.1A, Worker Protection Management for DOE 
Federal and Contractor Employees, the current DOE Order on worker 
health and safety, or a tailored set of requirements approved by DOE. 
The contractor would implement these requirements pursuant to a worker 
health and safety program approved by DOE.
    On January 1, 2004, DOE held a video conference to allow DOE 
employees, DOE contractors, contractor employees, and employee 
representatives to become

[[Page 3813]]

familiar with the December proposal. DOE held public hearings on the 
December proposal in Washington, DC on January 21, 2004, and in Golden, 
Colorado on February 4, 2004. In addition to the oral comments at the 
public hearings, DOE received approximately 50 written comments on the 
December proposal.
    On February 27, 2004, after becoming aware that the DNFSB had 
concerns with regard to the December proposal, DOE suspended the 
rulemaking in order to consult with the DNFSB and to consider comments 
received from other stakeholders on the December proposal. (69 FR 9277) 
As a result of its consultation with the DNFSB and consideration of 
other comments, DOE is now restarting the rulemaking proceeding through 
the issuance of this notice that sets forth a supplemental proposal, 
announces additional public hearings and provides the opportunity for 
further written comments.

II. Supplemental Proposal

    The supplemental proposal contains several provisions that differ 
from those in the December proposal. These proposed provisions 
incorporate approaches put forth by the DNFSB during consultations, as 
well as by the comments on the December proposal. Specifically, the 
supplemental proposal contains provisions that would: (1) Codify a 
minimum set of safety and health requirements with which contractors 
must comply; (2) establish a formal exemption process which requires 
approval by the Secretarial Officer with line management responsibility 
and provides for significant involvement by the Assistant Secretary for 
Environment, Safety and Health; (3) delineate the role of the worker 
safety and health program and its relationship to integrated safety 
management; (4) set forth the general duties of contractors responsible 
for DOE workplaces; and (5) limit the scope of the regulations to 
contractor activities at DOE sites.
    Subpart C of the supplemental proposal sets forth the proposed 
worker safety and health requirements with which a contractor would 
comply. These proposed requirements correspond, to a large extent, with 
the provisions set forth in Appendix A to the December proposal. These 
requirements include a variety of OSHA and consensus standards, and 
these standards would be legally binding on a contractor to the extent 
that a requirement is applicable to the hazards identified for a 
particular workplace environment. DOE invites comments on the question 
of whether the OSHA and consensus standards included in today's 
supplemental proposal provide an appropriate basis for enforcing worker 
safety and health requirements at DOE facilities.
    DOE does not expect that codification of these requirements will 
result in significant increased costs since, to a very large extent, 
they are based on existing provisions of DOE Order 440.1A, DOE Order 
420 and DOE Notice 450.7 that have been incorporated into most existing 
DOE contracts through the Integration of Environment, Health and Safety 
into Work Planning and Execution clause and the Laws, Regulations and 
DOE Directives clause. Accordingly, most contractors already should be 
implementing the substance of the proposed requirements to the extent 
applicable to the hazards identified for a particular workplace 
environment. In addition, DOE expects that the implementation guidance 
for the proposed requirements would be essentially the same as the 
implementation guidance for the corresponding provisions in DOE Order 
440.1A, DOE Order 420 and DOE Notice 450.7 and that contractors would 
make use of analyses, evaluations and work planning already undertaken 
to meet their existing contractual worker health and safety 
obligations. DOE requests comments from any person who believes that 
codification will result in significant increased costs. These comments 
should identify the reasons for the increased costs and potential 
changes to the supplemental proposal that could reduce or eliminate 
increased costs.
    Subpart D of the supplemental proposal sets forth a proposed 
exemption process by which the Secretarial Officer with line management 
responsibility for a contractor can relieve the contractor from 
complying with a particular requirement with respect to a particular 
workplace. The Assistant Secretary for Environment, Health and Safety 
would have the opportunity to review and comment on an exemption prior 
to its issuance and, in the case of a non-NNSA contractor, would have 
the option to non-concur in the issuance of an exemption. Subpart D is 
based on the existing exemption process for nuclear safety requirements 
that is set forth in 10 CFR part 820. Subpart D contains specific 
provisions that would require any exemption to: Adequately protect the 
safety and health of workers; be consistent with a safe and healthful 
workplace free from recognized workplace hazards that are causing or 
are likely to cause death or serious bodily injury; not permit exposure 
limits that are less protective than the limits required by subpart C; 
not diminish the level of protection afforded workers; and involve a 
special circumstance. The proposed list of special circumstances 
includes three situations not included in the exemption process set 
forth in Part 820. The additional situations would be situations where: 
an exemption would contribute to tailoring the requirements of this 
part to reflect the hazards and facilities associated with a particular 
work environment; a facility is to be, permanently closed and 
demolished, or title is expected to be transferred to another entity 
for reuse; or an exemption would contribute substantially to achieving 
a national security mission of the Department of Energy in an efficient 
and timely manner. The proposed addition of these three special 
circumstances is intended to ensure the supplemental proposal would 
have the regulatory flexibility mandated by the NDAA.
    DOE requests comments as to whether the exemption process is the 
most appropriate or effective method to: Ensure sufficient regulatory 
flexibility to address the myriad of workplace environments across the 
DOE complex; maintain a level of protection equivalent to that 
currently afforded workers; take advantage of worker safety and health 
programs already implemented to meet existing contractual obligations; 
and minimize unnecessary costs. Comments should identify potential 
modifications or alternative approaches.
    Subpart B of the supplemental proposal sets forth the proposed 
requirements for a contractor to develop, implement, and maintain a 
worker safety and health program and for DOE to approve the program. 
Subpart B would make clear that the overarching objectives for a 
program must be: Provision of a place of employment that is free from 
recognized workplace hazards that are causing or are likely to cause 
death or serious bodily harm to workers; and adequately protecting 
workers from identified hazards. These objectives are intended to 
ensure that the statutory standards in the AEA and the Occupational 
Safety and Health Act are met.
    Subpart B is based on the existing process for establishing worker 
safety and health programs pursuant to the Integration of Environment, 
Health and Safety into Work Planning and Execution clause and DOE Order 
440. Specifically, a contractor responsible for a covered workplace 
would identify existing and potential workplace hazards and assess the 
risk of associated workers' injuries and illnesses. To do

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this, the contractor would (1) define the scope of work; (2) identify 
relevant features of the work environment; (3) perform activity level 
hazard analyses to identify hazards; and (4) assess the risk of injury 
and illness associated with those hazards. After identifying hazards 
and assessing risks, the contractor would identify appropriate hazard 
controls to protect workers from the identified hazards prior to 
initiating work activities. Selection of hazard controls would take 
into account all hazards to ensure the development of an integrated set 
of hazard controls. The contractor would prioritize and implement 
abatement actions for identified hazards according to risk, implement 
interim protective measures pending final abatement, and protect 
workers from imminent danger.
    Subpart B provides that a DOE contractor responsible for one or 
more covered workplaces at a DOE site would submit to DOE, for its 
approval, a written worker safety and health program describing site-
specific methods and provisions for complying with the program 
requirements. At sites with multiple contractors responsible for 
various workplaces at the site, the contractors would coordinate with 
each other to ensure that the worker safety and health programs at the 
site are integrated and consistent. Beginning one year after the 
publication of the final rule, no work could proceed at a covered DOE 
workplace without a safety and health program in place that had been 
approved by the CSO or the DOE site manager if approval authority were 
delegated by the CSO. To ensure consistency throughout program offices 
and across DOE, however, the CSO or site manager would consult with the 
Assistant Secretary for Environment, Safety and Health in the 
evaluation and approval of contractor programs. To ensure timely 
evaluation and processing of each contractor-submitted program and to 
avoid work stoppage due to unnecessary delays, the CSO or the Site 
Manager would be obligated to act on a contractor-submitted program 
within 90 days of receipt of the program. DOE requests comments as to 
how the efficiency of the approval process might be increased and, in 
particular, as to the need for separate DOE approval of sub-elements of 
a worker safety and health program.
    A contractor would 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 associated hazards. The 
process for defining the scope of work, analyzing the hazards 
associated with the work, and identifying the applicable standards 
should be an iterative process performed continually to monitor changes 
in workplace activities and processes and to provide feedback on 
program performance. Through this process, a contractor would evaluate 
significant changes or additions to workplace activities to identify 
new hazards and to assess whether the existing program effectively 
addressed the scope and nature of the work and related hazards. This 
iterative process would provide the contractor with the information 
necessary to make changes and improvements to all aspects of the 
program as needed. On an annual basis, the contractor would either 
submit its updated worker safety and health program to DOE for approval 
or, if no changes are made to the program over the past year, a letter 
to that effect.
    Most contractors already have worker safety and health programs in 
effect. DOE expects contractors to build on these existing programs and 
not to duplicate work already undertaken to meet existing contractual 
obligations. For example, under paragraph 9 of the DOE Order 440.1A, 
Contractor Requirements document, DOE contractors have for almost a 
decade been required to: ``Identify existing and potential workplace 
hazards and evaluate risk of associated worker injury and illness; 
analyze or review: (1) Designs for new facilities and modifications to 
existing facilities and equipment; (2) operations and procedures; and 
(3) equipment, product, and services; assess worker exposure to 
chemical, physical, biological, or ergonomic hazards through 
appropriate workplace monitoring (including personal, area, wipe, and 
bulk sampling); biological monitoring; and observation; evaluate 
workplaces and activities (accomplished routinely by workers, 
supervisors, and managers and periodically by qualified worker 
protection professionals); and report and investigate accidents, 
injuries, and illnesses and analyze related data for trends and lessons 
learned.'' Similarly, under the Integration of Environment, Health and 
Safety into Work Planning and Execution clause, contractors are 
required to: Identify and evaluate workplace hazards, select an agreed-
upon set of safety and health standards to address those specific 
hazards, and implement administrative and engineering controls to 
prevent or mitigate specific workplace hazards.
    Section 851.4 of the supplemental proposal sets forth the proposed 
general duties of a contractor responsible for a covered workplace. 
Specifically, the contractor would be responsible for: Ensuring the 
workplace is free from recognized workplace hazards that are causing or 
are likely to cause death or serious bodily harm; providing workers 
adequate protection from the hazards identified for the workplace; 
complying with the workplace safety and health requirements set forth 
in subpart C of the supplemental proposal that are applicable to the 
hazards identified for the workplace; complying with any compliance 
order issued by the Secretary that is applicable to the workplace; 
ensuring work is performed in accordance with the worker health and 
safety program for the covered workplace; and reporting to DOE and 
investigate each occurrence, including any near miss incident, that 
causes or gives raise to a significant likelihood of death or serious 
bodily harm to a worker.
    Section 851.1 of the supplemental proposal would limit its scope to 
contractor activities at DOE sites. Federal employees would continue to 
be covered by existing programs for federal employees. Section 851.1 
also would exclude contractor employees at DOE sites currently 
regulated by OSHA. DOE believes this exclusion is appropriate since 
there are no defense nuclear facilities located at these sites and the 
contractors responsible for workplaces at these sites do not have 
Price-Anderson indemnification agreements in their contracts.

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)

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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 the 
Regulatory Flexibility Act's (5 U.S.C. 601(3)). The Regulatory 
Flexibility Act's definition incorporates the definition of small 
business concerns 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

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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. Three copies of 
written comments should be submitted to the address indicated in the 
ADDRESSES section of this notice. To help DOE review the submitted 
comments, commenters are requested to reference the provision 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-04-WSHP.
    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/rulemakingwsh.
    To assist DOE in making public comments available on a website, 
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/rulemakingwsh. If DOE must cancel the hearing, it will make every 
effort to give advance notice.

List of Subjects in 10 CFR Part 851

    Civil penalty, Hazardous substances, Incorporation by reference, 
Occupational safety and health, Safety, Reporting and recordkeeping 
requirements.

    Issued in Washington, DC on January 14, 2005.
John Spitaleri Shaw,
Assistant Secretary for Environment, Safety and Health.

    For the reasons set forth in the preamble, title 10, chapter III of 
the Code of Federal Regulations is proposed to be amended by adding 
part 851 to read as set forth below.

PART 851--WORKER SAFETY AND HEALTH PROGRAM

Subpart A--General Provisions

Sec.
851.1 Scope and exclusions.
851.2 Purpose.
851.3 Definitions.
851.4 General rule.
851.5 Compliance Order.
851.6 Interpretations.
851.7 Information and records.
851.8 Compliance date.
851.9 Enforcement.
851.10 Workers rights.
Subpart B--Worker Safety and Health Program
851.100 Worker safety and health program.

[[Page 3817]]

851.101 Approval and maintenance of the worker safety and health 
program.
Subpart C--Safety and Health Requirements
851.200 Worker safety and health requirements.
851.201 Worker safety and health standards.
851.202 Construction safety.
851.203 Fire protection.
851.204 Explosives safety.
851.205 Pressure retaining component safety.
851.206 Motor vehicle safety.
851.207 Biological safety.
851.208 Firearms safety.
851.209 Industrial hygiene.
851.210 Occupational medicine.
Subpart D--Exemption Relief
851.300 Exemptions.
851.301 Exemption criteria.
851.302 Terms and conditions.
Subpart E--Enforcement Process
851.400 Investigations and inspections.
851.401 Settlement.
851.402 Preliminary notice of violation.
851.403 Final notice of violation.
851.404 Administrative appeal.
851.405 Direction to NNSA contractors.

Appendix A 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 and exclusions.

    (a) The worker safety and health requirements in this part govern 
the conduct of contractor activities at DOE sites, with the exception 
of sites listed in paragraph (b) of this section.
    (b) This part does not apply to a DOE site:
    (1) Regulated by the Occupational Safety and Health Administration 
(OSHA) on [date on which final rule is issued]; 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.
    (c) This part does not apply to radiological hazards to the extent 
regulated by 10 CFR parts 820, 830 or 835.


Sec.  851.2  Purpose.

    This part establishes the:
    (a) Safety and health requirements that a contractor responsible 
for a covered workplace must implement through a worker safety and 
health program that provides its workers with a safe and healthful 
workplace in which workplace hazards are abated, controlled or 
otherwise mitigated in a manner that provides reasonable assurance that 
workers are adequately protected from identified hazards; and
    (b) Procedures for investigating whether a violation of a 
requirement has occurred, for determining the nature and extent of any 
such violation, and for imposing an appropriate remedy.


Sec.  851.3  Definitions.

    Activity-level hazard analysis means an analysis of work-related 
hazards relating to a specific job activity, task, operation or 
process.
    AEA means the Atomic Energy Act of 1954, 42 U.S.C. 2011 et seq.
    Cognizant Secretarial Officer means the Assistant Secretary, Deputy 
Administrator, Program Office Director, or equivalent DOE official who 
has primary line management responsibility for a contractor.
    Compliance Order means an Order issued by the Secretary to a 
contractor that mandates a remedy, work stoppage, or other action to 
address a situation that violates, potentially violates, or otherwise 
is inconsistent with a requirement of this part.
    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 under contract with DOE, or a 
subcontractor to such an entity, and includes any affiliated entity 
such as a parent organization.
    Director means a DOE Official to whom the Secretary has assigned 
the authority to investigate the nature and extent of compliance with 
the requirements of this part.
    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 a contractor.
    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, if appropriate, imposes a remedy with which the recipient 
of the order must comply.
    General Counsel means the General Counsel of DOE.
    Hazard control means a procedure, practice, means, method, 
operation, work process, or other control used to prevent, abate or 
mitigate workplace hazards and associated risks.
    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 if the General Counsel determines such action to be 
appropriate.
    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.
    Remedy means any action (including but not limited to, 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) necessary or 
appropriate to rectify, prevent, or penalize a violation of a 
requirement of this part, including a compliance order issued by the 
Secretary pursuant to this part.
    Secretary means the Secretary of Energy.
    Site Manager means the DOE official who has primary responsibility 
for overall management of a DOE site.
    Worker means a person who performs work for or on behalf of DOE, 
including an independent contractor, a DOE contractor or subcontractor 
employee, or any other person who performs work at a covered workplace.
    Workplace hazard means a physical, chemical, biological, or 
radiological hazard with any potential to cause illness, injury, or 
death to a person.
    Workplace safety and health programmatic requirements means a set 
of requirements that addresses related workplace hazards in a 
comprehensive manner, including requirements on construction safety, 
fire protection, firearms safety, explosives safety, industrial 
hygiene, occupational

[[Page 3818]]

medicine, pressure safety motor vehicle safety, and biosurety.
    Workplace safety and health requirement means a workplace safety 
and health standard or programmatic requirement.
    Workplace safety and health standard means a standard which 
addresses a workplace hazard by establishing limits, requiring 
conditions, or prescribing the adoption or use of one or more 
practices, means, methods, operations, or processes.


Sec.  851.4  General rule.

    The contractor responsible for a covered workplace must:
    (a) Ensure the workplace is free from recognized workplace hazards 
that are causing or are likely to cause death or serious bodily harm;
    (b) Provide workers adequate protection from the hazards identified 
for the workplace;
    (c) Comply with the workplace safety and health requirements set 
forth in subpart C of this part that are applicable to the hazards 
identified for the workplace;
    (d) Comply with any compliance order issued by the Secretary 
pursuant to Sec.  851.5 that is applicable to the workplace;
    (e) Ensure work is performed in accordance with the worker health 
and safety program for the covered workplace; and
    (f) Report to DOE and investigate each occurrence, including any 
near miss incident that causes or gives raise to a significant 
likelihood of death or serious bodily harm to a worker.


Sec.  851.5  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.  851.6  Interpretations.

    (a) The Office of the General Counsel is 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.  851.7  Information and records.

    (a) A contractor must maintain complete and accurate records as 
necessary to substantiate compliance with the requirements of this 
part, including but not limited to records on inventory information, 
hazard assessment, exposure measurements, exposure controls, and worker 
injuries and illnesses.
    (b) A contractor may neither conceal nor destroy any information 
concerning non-compliance or potential non-compliance 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.
    (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.  851.8  Compliance date.

    Contractors must achieve compliance with the requirements of this 
part no later than [Insert date 1 year from effective date of the 
rule], unless an exemption granted pursuant to subpart D of this part 
provides otherwise.


Sec.  851.9  Enforcement.

    (a) A contractor that has entered into an agreement of 
indemnification under section 170d. of the AEA(or any subcontractor or 
supplier thereto) and that violates (or whose employee violates) any 
requirement of this part is subject to a civil penalty of up to $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.
    (b) A contractor that violates any requirement 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) DOE may not penalize a contractor under both paragraphs (a) and 
(b) of this section for the same violation of a requirement of this 
part.
    (d) For contractors listed in subsection d. of section 234A of the 
AEA, 42 U.S.C. 2282a(d), the total amount of civil penalties under 
paragraph (a) and contract penalties under paragraph (b) of this 
section may not exceed the total amount of fees paid by DOE to the 
contractor in that fiscal year.
    (e) DOE may not penalize a contractor under both sections 234A and 
234C of the AEA for the same violation.


Sec.  851.10  Workers rights.

    (a) Workers at a covered workplace have the right, without 
reprisal, to participate in activities described in this section on 
official time;
    (b) Workers at a covered workplace also have the right, without 
reprisal to:
    (1) Have access to:
    (i) DOE safety and health publications;
    (ii) The worker safety and health program for the covered 
workplace;
    (iii) The standards, controls, and procedures applicable to the 
covered workplace;
    (iv) The safety and health poster that informs the worker of 
relevant rights and responsibilities.
    (2) Be notified when monitoring results indicate the worker was 
overexposed to hazardous materials;
    (3) Observe monitoring or measuring of hazardous agents and have 
the results of his or her own exposure monitoring;
    (4) Accompany DOE personnel during an inspection of the workplace;
    (5) Request and receive results of inspections and accident 
investigations;
    (6) Express concerns related to worker safety and health;
    (7) 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; and
    (8) Stop work 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.

[[Page 3819]]

Subpart B--Worker Safety and Health Program


Sec.  851.100  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 
that ensures:
    (1) Workplaces are free from recognized workplace hazards that are 
causing or are likely to cause death or serious bodily harm; and
    (2) Workers are adequately protected from identified hazards.
    (b) A worker safety and health program must:
    (1) Include provisions for:
    (i) Defining the scope of the work to be performed prior to its 
initiation;
    (ii) Identifying relevant features of the work environment, 
including designs and features of facilities, equipment, operations and 
procedures important to a safe and healthful workplace prior to the 
initiation of work activities;
    (iii) Identifying and evaluating general workplace hazards, 
specific job hazards, and potential hazards that may arise from 
unforeseeable conditions;
    (iv) Undertaking routine activity-level hazard analyses to:
    (A) Evaluate designs of new facilities and modifications to 
existing facilities and equipment for potential workplace hazards; and
    (B) Evaluate operations and procedures to identify workplace 
hazards;
    (v) Considering all hazards, including radiological hazards, in 
order to ensure development of an integrated set of hazard controls to 
protect workers;
    (vi) Assessing the risk of associated injury and illness to workers 
from the identified hazards;
    (vii) Assessing worker exposure to chemical, physical, biological, 
radiological, or safety workplace hazards through appropriate workplace 
monitoring;
    (viii) Documenting assessments for chemical, physical, biological, 
and safety workplace hazards using recognized exposure assessment and 
testing methodologies and use of accredited and certified laboratories;
    (ix) Recording observations, testing and monitoring results; and
    (x) Reviewing safety and health information.
    (2) Provide for the prevention, abatement and mitigation of 
identified workplace hazards through:
    (i) Prioritization and implementation of actions according to the 
potential hazard to workers;
    (ii) Implementation of interim protective measures pending final 
action;
    (iii) Protection of workers from imminently dangerous conditions;
    (iv) Selection of hazard controls based on the following hierarchy:
    (A) Elimination of the hazard;
    (B) Engineered controls;
    (C) Work practices and administrative controls; and
    (D) Personal protective equipment; and
    (v) Emphasis on reducing hazards to workers when purchasing 
equipment and services.
    (3) Provide for the effective implementation of the worker safety 
and health requirements of subpart C of this part in a manner tailored 
to:
    (i) Reflect activities and hazards associated with a particular 
work environment;
    (ii) Take into account special circumstances at 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; and
    (iii) Achieve national security missions of the Department of 
Energy in an efficient and timely manner.
    (4) Identify the hazard controls to be used to provide adequate 
protection from identified hazards at the activity level in a tailored 
manner for a particular work environment or the process for selecting 
and identifying such controls in the future prior to the initiation of 
work activities;
    (5) Identify situations for which the contractor has concluded an 
exemption pursuant to subpart D is needed and the process for 
identifying other such situations in the future;
    (6) Provide for feedback on the worker safety and health program 
and for its continuous improvement;
    (7) Ensure that all workers are provided with information and 
training needed to perform their duties in a safe and healthful manner;
    (8) Ensure the worker safety and health program is consistent and 
integrated with other safety activities at the workplace;
    (9) Contain provisions to ensure compliance by subcontractors; and
    (10) Document the process of developing and maintaining the worker 
safety and health program at a level commensurate with the complexity 
and hazards associated with the workplace.


Sec.  851.101  Approval and maintenance of the worker safety and health 
program.

    (a) By July 25, 2005, contractors must submit for DOE approval a 
written worker safety and health program that meets the requirements of 
Sec.  851.100.
    (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 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.
    (b) The Cognizant Secretarial Officer or, if approval authority is 
delegated by the Cognizant Secretarial Officer, the Site Manager must 
review and approve the contractor's worker safety and health program, 
in consultation with the Assistant Secretary for Environment, Safety 
and Health, within 90 days after receipt from the contractor. Beginning 
January 26, 2006, no work may be performed at a covered workplace 
unless the Cognizant Secretarial Officer or the Site Manager has 
approved the worker safety and health program for the workplace.
    (c) A contractor must maintain its worker safety and health program 
by:
    (1) Evaluating and updating the worker safety and health program at 
least annually to reflect when significant changes or additions in the 
activities and hazards are made, or a change in contractors occurs;
    (2) Annually submitting to the Cognizant Secretarial Officer or, if 
approval authority is delegated by the Cognizant Secretarial Officer, 
the DOE Site Manager 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;
    (3) Performing an internal audit of its worker safety and health 
program no less frequently than every 36 months and transmitting the 
results of the audit to the DOE Site Manager, the Cognizant Secretarial 
Officer, the Assistant Secretary for Environment, Safety and Health, 
and the Director; and
    (4) Incorporating in the worker safety and health program any 
changes, conditions, or workplace safety and health standards directed 
by DOE.

[[Page 3820]]

Subpart C--Safety and Health Requirements


Sec.  851.200  Worker safety and health requirements.

    (a) A contractor responsible for a covered workplace must comply 
with the worker safety and health requirements set forth in this 
subpart as applicable to the workplace hazards identified for 
facilities and activities under its control.
    (b) Nothing in this subpart shall be construed to limit the 
authority of DOE to impose additional requirements on a contractor.


Sec.  851.201  Worker safety and health standards.

    (a) The following regulations of the Occupational Safety and Health 
Administration (OSHA) in effect as of [Insert Effective Date of Final 
Rule]:
    (1) 29 CFR part 1910, Occupational Safety and Health Standards, 
except 29 CFR part 1910.109;
    (2) 29 CFR part 1915, Occupational Safety and Health Standards for 
Shipyard Employment;
    (3) 29 CFR part 1917, Marine Terminals;
    (4) 29 CFR part 1918, Safety and Health Regulations for 
Longshoring;
    (5) 29 CFR part 1926, Safety and Health Regulations for 
Construction; and
    (6) 29 CFR part 1928, Occupational Safety and Health Standards for 
Agriculture.
    (b) The National Fire Protection Association (NFPA) codes and 
standards listed in Table 1 below.

   Table 1.--National Fire Protection Association Codes and Standards
------------------------------------------------------------------------
              NFPA No.                        Title            Edition
------------------------------------------------------------------------
1..................................  Uniform Fire Code.....         2003
10.................................  Standard for Portable          2002
                                      Fire Extinguishers.
11A................................  Standard for Medium-           1999
                                      and High-Expansion
                                      Foam Systems.
11.................................  Standard for Low-,             2002
                                      Medium-, and High-
                                      Expansion Foam.
12.................................  Standard on Carbon             2000
                                      Dioxide Extinguishing
                                      Systems.
12A................................  Standard on Halon 1301         1997
                                      Fire Extinguishing
                                      Systems.
13.................................  Standard for the               2002
                                      Installation of
                                      Sprinkler Systems.
14.................................  Standard for the               2003
                                      Installation of
                                      Standpipe and Hose
                                      Systems.
15.................................  Standard for Water             2001
                                      Spray Fixed Systems
                                      for Fire Protection.
16.................................  Standard for the               2003
                                      Installation of Foam-
                                      Water Sprinkler Foam-
                                      Water Spray Systems.
17A................................  Standard for Wet               2002
                                      Chemical
                                      Extinguishing Systems.
17.................................  Standard for Dry               2002
                                      Chemical
                                      Extinguishing Systems.
20.................................  Standard for the               2003
                                      Installation of
                                      Stationary Pumps for
                                      Fire Protection.
22.................................  Standard for Water             2003
                                      Tanks for Private
                                      Fire Protection.
24.................................  Standard for the               2002
                                      Installation of
                                      Private Fire Service
                                      Mains and Their
                                      Appurtenances.
25.................................  Standard for                   2002
                                      Inspection, Testing,
                                      and Maintenance of
                                      Water-Based Fire
                                      Protection Systems.
30A................................  Codes for Motor Fuel           2003
                                      Dispensing Facilities
                                      and Repair Garages.
30.................................  Flammable and                  2003
                                      Combustible Liquids
                                      Code.
31.................................  Standard for the               2001
                                      Installation of Oil-
                                      Burning Equipment.
33.................................  Standard for Spray             2003
                                      Application Using
                                      Flammable or
                                      Combustible Materials.
37.................................  Standard for the               2002
                                      Installation and Use
                                      of Stationary
                                      Combustion Engines
                                      and Gas.
45.................................  Standard on Fire               2000
                                      Protection for
                                      Laboratories Using
                                      Chemicals.
50A................................  Standard for Gaseous           1999
                                      Hydrogen Systems at
                                      Consumer sites.
50B................................  Standard for Liquefied         1999
                                      Hydrogen Systems at
                                      Consumer Sites.
50.................................  Standard for Bulk              2001
                                      Oxygen Systems at
                                      Consumer Sites.
51.................................  Standard for the               2002
                                      Design and
                                      Installation of
                                      Oxygen Fuel Gas
                                      Systems for Welding,
                                      Cutting, and Allied
                                      Processes.
51B................................  Standard for Fire              2003
                                      Prevention During
                                      Welding, Cutting, and
                                      Other Hot Work.
52.................................  Compressed Natural Gas         2002
                                      (CNG) Vehicular Fuel
                                      Systems Code.
54.................................  ANSI Z223.1, 2002              2002
                                      National Fuel Gas
                                      Code.
55.................................  Standard for Storage,          2003
                                      Use and Handling of
                                      Compressed Gases and
                                      Cryogenic Fluids in
                                      Portable and
                                      Stationary
                                      Containers, Cylinders
                                      and Tanks.
57.................................  Liquefied Natural Gas          2002
                                      (LNG) Vehicular Fuel
                                      Systems Codes.
58.................................  Liquefied Petroleum            2001
                                      Gas Code.
59A................................  Standard for the               2001
                                      Production, Storage,
                                      and Handling of
                                      Liquefied Natural Gas
                                      (LNG).
59.................................  Utility LP-Gas Plant           2001
                                      Code.
69.................................  Standard on Explosion          2002
                                      Prevention Systems.
70.................................  National Electrical            2002
                                      Code.
70E................................  Standard for                   2002
                                      Electrical Safety
                                      Requirements for
                                      Employee Workplaces.
72.................................  National Fire Alarm            2002
                                      Code.
73.................................  Electrical Inspection          2000
                                      Code for Existing
                                      Dwellings.
75.................................  Standard for the               2003
                                      Protection of
                                      Information
                                      Technology Equipment.
80.................................  Standard for Fire              1999
                                      Doors and Fire
                                      Windows.
82.................................  Standard on                    1999
                                      incinerators and
                                      Waste and Linen
                                      Handling Systems and
                                      Equipment.
85.................................  Boiler and Combustion          2001
                                      Systems Hazards Code.
86.................................  Standard for Ovens and         2003
                                      Furnaces.
88A................................  Standard for Parking           2002
                                      Structures.
90A................................  Standard for the               2002
                                      Installation of Air-
                                      Conditioning and
                                      Ventilating Systems.
90B................................  Standard for the               2002
                                      Installation of Warm
                                      Air Heating and Air-
                                      Conditioning Systems.
91.................................  Standard for Exhaust           1999
                                      Systems for Air
                                      Conveying of Vapors,
                                      Gases, Mists, and
                                      Noncombustible
                                      Particulate Solids.
96.................................  Standard for                   2001
                                      Ventilation Control
                                      and Fire Protection
                                      of Commercial Cooking
                                      Operations.
97.................................  Standard glossary of           2003
                                      terms Relating to
                                      Chimneys, Vents, and
                                      Heat-Producing
                                      Appliances.
99.................................  Standard for Health            2002
                                      Care Facilities.
99C................................  Standard on Gas and            2002
                                      Vacuum Systems.

[[Page 3821]]

 
101B...............................  Code for Means of              2002
                                      Egress for Buildings
                                      and Structures.
101................................  Life Safety Code......         2003
102................................  Standard for                   1995
                                      Grandstands, Folding
                                      and Telescopic
                                      Seating, Tents, and
                                      Membrane Structures.
105................................  Standard for the               2003
                                      Installation of Smoke
                                      Door Assemblies.
110................................  Standard for Emergency         2002
                                      and Standby Power
                                      Systems.
111................................  Standard on Stored             2001
                                      Electrical Energy
                                      Emergency and Standby
                                      Power Plants.
115................................  Standard for Laser             2003
                                      Fire Protection.
204................................  Standard for Smoke and         2002
                                      Heat Venting.
211................................  Standard for Chimneys,         2003
                                      Fireplaces, Vents,
                                      and Solid Fuel-
                                      Burning Appliances.
214................................  Standard on Water-             2000
                                      Cooling Towers.
220................................  Standard on Types of           1999
                                      Building Construction.
221................................  Standard for Fire              2000
                                      Walls and Fire
                                      Barrier Walls.
230................................  Standard for the Fire          2003
                                      Protection of Storage.
232................................  Standard for the               2000
                                      Protection of records.
241................................  Standard for                   2000
                                      Safeguarding
                                      Construction,
                                      Alteration, and
                                      Demolition Operations.
307................................  Standard for the               2000
                                      Construction and Fire
                                      Protection of Marine
                                      Terminals, Piers, and
                                      Wharves.
318................................  Standard for the               2002
                                      Protection of
                                      Semiconductors
                                      Fabrication
                                      Facilities.
326................................  Standard for the               1999
                                      Safeguarding of Tanks
                                      and Containers for
                                      Entry, Cleaning, or
                                      Repair.
385................................  Standard for Tank              2000
                                      Vehicles for
                                      Flammable and
                                      Combustible Liquids.
407................................  Standard for Aircraft          2001
                                      Fuel Servicing.
408................................  Standard for Aircraft          1999
                                      Hand Portable Fire
                                      Extinguishers.
409................................  Standard on Aircraft           2001
                                      Hangers.
415................................  Standard on Airport            2002
                                      terminal Building,
                                      Fueling Ramp
                                      Drainage, and Loading
                                      Walkways.
418................................  Standard for Heliports         2001
430................................  Code for the Storage           2000
                                      of Liquid and Solid
                                      Oxidizers.
432................................  Code for the Storage           2002
                                      of Organic Peroxide
                                      Formulations.
434................................  Code for the Storage           2002
                                      of Pesticides.
472................................  Standard for                   2002
                                      Professional
                                      Competence of
                                      Responders to
                                      Hazardous Materials
                                      Incidents.
473................................  Standard for                   2002
                                      Competencies for EMS
                                      Personnel Responding
                                      to Hazardous
                                      Materials Incidents.
484................................  Standard for                   2002
                                      Combustible Metals,
                                      Metal Powders, and
                                      Metal Dusts.
490................................  Code for the Storage           2002
                                      of Ammonium Nitrate.
495................................  Explosive Materials            2001
                                      Code.
496................................  Standard for Purged            2003
                                      and Pressurized
                                      Enclosures for
                                      Electrical Equipment.
498................................  Standard for Safe              2001
                                      Havens and
                                      Interchange Lots for
                                      Vehicles Transporting
                                      Explosives.
502................................  Standard for Road              2001
                                      Tunnels, Bridges, and
                                      Other Limited Access
                                      Highways.
505................................  Fire Safety Standard           2002
                                      for Powered
                                      Industrial Trucks
                                      Including Type
                                      Designations, Areas
                                      of Use, Conversions,
                                      Maintenance, and
                                      Operations.
520................................  Standard on                    1999
                                      Subterranean Spaces.
560................................  Standard for the               2002
                                      Storage, Handling,
                                      and Use of Ethylene
                                      Oxide for
                                      Sterilization and
                                      Fumigation.
600................................  Standard on Industrial         2000
                                      Fire Brigades.
601................................  Standard for Security          2000
                                      Services in Fire Loss
                                      Prevention.
654................................  Standard for the               2000
                                      Prevention of Fire
                                      and Dust Explosions
                                      from the
                                      Manufacturing,
                                      Processing, and
                                      Handling of
                                      Combustible
                                      Particulate Solids.
655................................  Standard for                   2001
                                      Prevention of Sulfur
                                      Fires and Explosions.
664................................  Standard for the               2002
                                      Prevention of Fires
                                      and Explosions in
                                      Wood Processing and
                                      Woodworking
                                      Facilities.
704................................  Standard System for            2001
                                      the Identification of
                                      the Hazards of
                                      Materials for
                                      Emergency Response.
750................................  Standard on Water Mist         2003
                                      Fire Protection
                                      Systems.
780................................  Standard for the               2000
                                      Installation of
                                      Lighting Protection
                                      Systems.
801................................  Standard for Fire              2003
                                      Protection for
                                      Facilities Handling
                                      Radioactive Materials.
820................................  Standard for Fire              2003
                                      Protection in
                                      Wastewater Treatment
                                      and Collective
                                      Facilities.
853................................  Standard for the               2003
                                      Installation of
                                      Stationary Fuel Cell
                                      Power System.
909................................  Code for the                   2001
                                      Protection of
                                      Cultural Resources.
914................................  Code for Fire                  2001
                                      Protection of
                                      Historic Structures.
1000...............................  Standard for Fire              2000
                                      Service Professional
                                      Qualifications
                                      Accreditation and
                                      Certification Systems.
1001...............................  Standard for Fire              2002
                                      Fighter Professional
                                      Qualifications.
1002...............................  Standard on Fire               2003
                                      Apparatus Drivers/
                                      Operator Professional
                                      Qualifications.
1003...............................  Standard for Airport           2000
                                      Fire Fighter
                                      Professional
                                      Qualifications.
1006...............................  Standard for Rescue            2003
                                      Technician
                                      Professional
                                      Qualifications.
1021...............................  Standard for Fire              2003
                                      Officer Professional
                                      Qualifications.
1041...............................  Standard for Fire              2002
                                      Service Instructor
                                      Professional
                                      Qualifications.
1051...............................  Standard for Wildland          2002
                                      Fire Fighter
                                      Professional
                                      Qualifications.
1061...............................  Standard for                   2002
                                      Professional
                                      Qualifications for
                                      Public Safety
                                      Telecommunicator.
1071...............................  Standard for Emergency         2000
                                      Vehicle Technician
                                      Professional
                                      Qualifications.
1141...............................  Standard for Fire              2003
                                      Protection in Planned
                                      Building Groups.
1142...............................  Standard on Water              2001
                                      Supplies for Suburban
                                      and Rural Fire
                                      Fighting.
1143...............................  Standard for Wildland          2003
                                      Fire Management.
1144...............................  Standard for                   2002
                                      Protection of Life
                                      and Property from
                                      Wildfire.
1221...............................  Standard for the               2002
                                      Installation,
                                      Maintenance, and Use
                                      of Emergency Services
                                      Communications
                                      Systems.
1403...............................  Standard on Live Fire          2002
                                      Training Evolutions.
1404...............................  Standard for Fire              2002
                                      Service Respiratory
                                      Protection Training.
1410...............................  Standard on Training           2000
                                      for Initial Emergency
                                      Scene Operations.
1451...............................  Standard for a Fire            2002
                                      Service Vehicle
                                      Operations Training
                                      Program.

[[Page 3822]]

 
1500...............................  Standard on Fire               2002
                                      Department
                                      Occupational Safety
                                      and Health Program.
1521...............................  Standard for Fire              2002
                                      Department Safety
                                      Officer.
1561...............................  Standard on Emergency          2002
                                      Services Incident
                                      Management System.
1581...............................  Standard on Fire               2000
                                      Department Infection
                                      Control Program.
1582...............................  Standard on                    2003
                                      Comprehensive
                                      Occupational Medical
                                      Program for Fire
                                      Departments.
1583...............................  Standard on Health-            2000
                                      Related Fitness
                                      Programs for Fire
                                      Fighters.
1670...............................  Standard on Operations         1999
                                      and Training for
                                      Technical Rescue
                                      Incidents.
1710...............................  Standard for the               2001
                                      Organization and
                                      Deployment of Fire
                                      Suppression
                                      Operations, Emergency
                                      Medical Operations,
                                      and Special
                                      Operations to the
                                      Public by Career Fire
                                      Departments.
1851...............................  Standard on Selection,         2001
                                      Care and Maintenance
                                      of Structural Fire
                                      Fighting Protective
                                      Ensembles.
1852...............................  Standard on Selection,         2002
                                      Care, and Maintenance
                                      of Open-Circuit Self-
                                      Contained Breathing
                                      Apparatus (SCBA).
1901...............................  Standard for                   2003
                                      Automotive Fire
                                      Apparatus.
1906...............................  Standard for Wildland          2001
                                      Fire Apparatus.
1911...............................  Standard for Service           2002
                                      Test of Fire pump
                                      Systems on Fire
                                      Apparatus.
1912...............................  Standard for Fire              2001
                                      Apparatus
                                      Refurbishing.
1914...............................  Standard for Testing           2002
                                      Fire Department
                                      Aerial Devices.
1915...............................  Standard for Fire              2000
                                      Apparatus Preventive
                                      Maintenance Program.
1925...............................  Standard on Marine             1998
                                      Fire-Fighting Vessels.
1931...............................  Standard on design of          1999
                                      and Design
                                      Verification Tests
                                      for the Fire
                                      Department Ground
                                      Ladders.
1932...............................  Standard on Use,               1999
                                      Maintenance, and
                                      Service Testing of
                                      Fire Department
                                      Ground Ladders.
1936...............................  Standard on Powered            1999
                                      Rescue Tool Systems.
1951...............................  Standard on Protective         2001
                                      Ensemble for USAR
                                      Operations.
1961...............................  Standard on Fire Hose.         2002
1962...............................  Standard for the               2003
                                      Inspection, Care, and
                                      Use of Fire Hose,
                                      Couplings, and
                                      Nozzles.
1963...............................  Standard for Fire Hose         2003
                                      Connections.
1964...............................  Standard for Spray             2003
                                      Nozzles.
1965...............................  Standard for Hose              2003
                                      Appliances.
1971...............................  Standard on Protective         2000
                                      Ensembles for
                                      Structural Fire
                                      Fighting.
1975...............................  Standard on Station/           1999
                                      Work Uniforms for
                                      Fire and Emergency
                                      Services.
1976...............................  Standard on Protective         2000
                                      Ensemble for
                                      Proximity Fire
                                      Fighting.
1977...............................  Standard on Protective         1998
                                      Clothing and
                                      Equipment for
                                      Wildland Fire
                                      Fighting.
1981...............................  Standard on Open-              2002
                                      Circuit Self-
                                      Contained Breathing
                                      Apparatus for Fire
                                      and Emergency
                                      Services.
1982...............................  Standard on Personal           1998
                                      Alert Safety Systems
                                      (PASS).
1983...............................  Standard on Fire               2001
                                      Service Life Safety
                                      Rope and System
                                      Components.
1989...............................  Standard on Breathing          2003
                                      Air Quality for Fire
                                      and Emergency
                                      Services Respiratory
                                      Protection.
1991...............................  Standard on Vapor-             2000
                                      Protective Ensembles
                                      for Hazardous
                                      Materials Emergencies.
1992...............................  Standard on Liquid             2000
                                      Splash-Protective
                                      Ensembles and
                                      Clothing for
                                      Hazardous Materials
                                      Emergencies.
1994...............................  Standard on Protective         2001
                                      Ensembles for
                                      Chemical/Biological
                                      Terrorism Incidents.
1999...............................  Standard on Protective         2003
                                      Clothing for
                                      Emergency Medical
                                      Operations.
2001...............................  Standard on Clean              2000
                                      Agent Fire
                                      Extinguishing Systems.
2112...............................  Standard on Flame-             2001
                                      Resistant Garments
                                      for Protection of
                                      Industrial Personnel
                                      Against Flash Fire.
2113...............................  Standard on Selection,         2001
                                      Care, Use, and
                                      Maintenance of Flame-
                                      Resistant Garments
                                      for Protection of
                                      Industrial Personnel
                                      Against Flash Fire.
5000...............................  Building Construction          2003
                                      and Safety Code.
------------------------------------------------------------------------

    (c) The codes listed in Tables 2 through 5 published by the 
American Society of Mechanical Engineers (ASME), the American National 
Standards Institute (ANSI), the American Petroleum Institute (API), the 
American Water Works Association (AWWA), and Underwriters Laboratories 
(UL) as applicable to pressure retaining components including pressure 
vessels, piping, valves, fittings, flanges and gaskets.

                                                  Table 2.--ASME Boiler and Pressure Vessel Code (2004)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                   Section                                                                       Title
--------------------------------------------------------------------------------------------------------------------------------------------------------
I............................................  Power Boilers.
II...........................................  Materials.
III..........................................  Rules for Construction of Nuclear Facility Components.
IV...........................................  Heating Boilers.
V............................................  Non Destructive Examination.
VI...........................................  Recommended Rules for Care and Operation of Heating Boilers.
VII..........................................  Recommended Guidelines for the Care of Power Boilers.
VIII.........................................  Pressure Vessels.
IX...........................................  Welding and Brazing Qualifications.
X............................................  Fiber-Reinforced Plastic Pressure Vessels.
XI...........................................  Rules for In-Service Inspection of Nuclear Power Plant Components.
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 3823]]


                    Table 3.--ANSI/ASME Piping Codes
------------------------------------------------------------------------
              Section                         Title            Edition
------------------------------------------------------------------------
B31.1..............................  Power Piping..........         2001
B31.2..............................  Fuel Gas Piping.......         1968
B31.3..............................  Process Piping........         2002
B31.4..............................  Pipeline                       2002
                                      Transportation
                                      Systems, Liquid
                                      Hydrocarbon, Other
                                      Liquids.
B31.5..............................  Refrigeration Piping           2001
                                      and Hat Transfer
                                      Components.
B31.8..............................  Gas Transmission and           2004
                                      Distribution Piping
                                      Systems.
B31.9..............................  Building Services              1996
                                      Piping.
B31.11.............................  Slurry Transportation          2003
                                      Piping Systems.
------------------------------------------------------------------------


     Table 4.--ASME Codes for Valves, Fittings, Flanges and Gaskets
------------------------------------------------------------------------
              Section                         Title            Edition
------------------------------------------------------------------------
B16.1..............................  Cast Iron Pipe Flanges         1998
                                      and Fittings.
B16.3..............................  Malleable Iron                 1998
                                      Threaded Fittings.
B16.4..............................  Gray Iron Threaded             1998
                                      Fittings.
B16.5..............................  Pipe Flanges and               1996
                                      Flanged Fittings.
B16.9..............................  Factory-Made Wrought           2001
                                      Buttwelding Fitting.
B16.10.............................  Face-to-Face and End-          2000
                                      to-End Dimensions of
                                      Valves.
B16.11.............................  Forged Fittings Socket-        2001
                                      Welding and Threaded.
B16.12.............................  Cast Iron Threaded             1998
                                      Drainage Fittings.
B16.14.............................  Ferrous Pipe Plugs,            1991
                                      Bushings and Locknuts
                                      with Pipe Threads.
B16.15.............................  Cast Iron Bronze               1985
                                      Threaded Fittings.
B16.18.............................  Cast Copper Alloy              2001
                                      Solder Joint Pressure
                                      Fittings.
B16.20.............................  Metallic Gasket for            1998
                                      Pipe Flanges: Ring-
                                      Joint Spiral-Wound
                                      and Jacketed.
B16.21.............................  Nonmetallic Flat               1992
                                      Gaskets for Pipe
                                      Flanges.
B16.22.............................  Wrought Copper and             2001
                                      Copper Alloy Solder
                                      Joint Pressure
                                      Fittings.
B16.23.............................  Cast Copper Alloy              2002
                                      Solder Joint Drainage
                                      Fittings.
B16.25.............................  Buttwelding Ends......         1997
B16.26.............................  Cast Copper Alloy              1998
                                      Fittings for Flared
                                      Copper Tubes.
B16.28.............................  Wrought Steel                  1994
                                      Buttwelding Short
                                      Radius Elbows and
                                      Returns.
B16.29.............................  Wrought Copper and             2001
                                      Wrought Copper Alloy
                                      Solder Joint Drainage
                                      Fittings.
B16.33.............................  Manually Operated              2001
                                      Metallic Gas Valves
                                      for Use in Gas Piping
                                      Systems up to 125psi.
B16.34.............................  Valves-Flanged,                1996
                                      Threaded and Welding
                                      End.
B16.36.............................  Orifice Flanges.......         1996
B16.38.............................  Large Metallic Valves          1985
                                      for Gas Distribution
                                      (manually operated
                                      NPS 2\1/2\ to 12, 125
                                      psig).
B16.39.............................  Malleable Iron                 2003
                                      Threaded Pipe Unions.
B16.40.............................  Manually Operated              2002
                                      Thermoplastic Gas
                                      Shutoffs and Valves
                                      in Gas Distribution
                                      Systems.
B16.42.............................  Ductile Iron Pipe              2001
                                      Flanges and Fittings:
                                      Classes 150 and 300.
B16.44.............................  Manually Operated              1968
                                      Metallic Gas Valves
                                      for Use in Above
                                      Ground Piping Systems
                                      up to 5psi.
B16.45.............................  Cast Iron Fittings for         2002
                                      Solvent Drainage
                                      Systems.
B16.47.............................  Large diameter Steel           1999
                                      Flanges: NPS26
                                      through NPS60.
B16.48.............................  Steel Line Blanks.....         2002
B16.49.............................  Factory-Made Wrought           2001
                                      Steel Buttwelding
                                      Induction Bends.
B16.50.............................  Wrought Copper and             1992
                                      Copper Alloy Braze-
                                      Joint Pressure
                                      Fittings.
------------------------------------------------------------------------


     Table 5.--Codes and Standards for Additional Pressure Retaining
                               Components
------------------------------------------------------------------------
              Section                         Title            Edition
------------------------------------------------------------------------
Compressors:
    ASME B19.1.....................  Safety Standard for            1995
                                      Air Compressor
                                      Systems.
    ASME B19.3.....................  Safety Standard for            1991
                                      Compressor for
                                      Process Industries.
Pumps:
    API-610........................  Centrifugal Pump for           2003
                                      General Refinery
                                      Service, American
                                      Petroleum Institute.
Tanks:
    ASME B96.1.....................  Welder Aluminum Alloy          1991
                                      Storage Tanks.
    API-620........................  Design and                     2002
                                      Construction of Large
                                      Welded Low Pressure
                                      Storage.
    API-650........................  Atmospheric Welded             1996
                                      Steel Tanks for Oil
                                      Storage, American
                                      Petroleum Institute.
    AWWA-D100......................  Welded Steel Tanks for         1996
                                      Water Storage,
                                      American Water Works
                                      Association.
    API-2000.......................  Venting Atmospheric            1998
                                      and Low Pressure
                                      Storage Tanks.
    API-2510.......................  Design and                     2001
                                      Construction of
                                      Liquid Petroleum Gas
                                      (LPG) Installations.
    UL-58..........................  Steel Underground              1998
                                      Tanks for Flammable
                                      and Combustible
                                      Liquids, Underwriters
                                      Valve Laboratories.
    UL-142.........................  Steel Aboveground              2003
                                      Tanks for Flammable
                                      and Combustible
                                      Liquids, Underwriters
                                      Laboratories.
    API-653........................  Tank Inspection,               2001
                                      Repair, and
                                      Reconstruction,
                                      American Petroleum
                                      Institute.
Pressure Vessel:
    API-660........................  Shell and Tube Heat            2001
                                      Exchange to General
                                      Refinery Service,
                                      American Petroleum
                                      Institute.
------------------------------------------------------------------------


[[Page 3824]]

    (d) Exposure limits and technical requirements of the American 
National Standards Institute (ANSI) contained in the following 
standards:
    (1) Z136.1, Safe Use of Lasers (2000);
    (2) Z88.2, Practices for Respiratory Protection (2004); and
    (3) Z49.1, Safety in Welding, Cutting and Allied Processes, 
Sections 4.3 and E4.3 (1999).
    (e) American Conference of Governmental Industrial Hygienists 
(ACGIH) standard, Threshold Limit Values for Chemical Substances and 
Physical Agents and Biological Exposure Indices, in effect as of 
[Insert Effective Date of The Final Rule]. This standard shall be used 
in lieu of OSHA Permissible Exposure Limits in the event that the ACGIH 
Threshold Limit Values are lower (more protective) than the comparable 
OSHA limit.


Sec.  851.202  Construction safety.

    (a) A contractor responsible for a workplace with a construction 
project must:
    (1) Prepare an activity-level hazard analysis prior to commencement 
of affected work. Such an analysis shall:
    (i) Identify foreseeable hazards and planned protective and 
mitigative measures;
    (ii) Provide drawings and/or other documentation of protective 
measures that a Professional Engineer or other competent person is 
required to prepare; and
    (iii) Define the qualifications of competent persons required for 
workplace inspections.
    (2) Inform workers of foreseeable hazards and the protective and 
mitigative measures described within the activity-level hazard analysis 
prior to beginning work on the affected construction operation.
    (3) Require workers to utilize protective or mitigative measures as 
a condition of employment as well as acknowledge being informed of the 
hazards and protective and mitigative measures.
    (4) During periods of active construction, have a designated 
representative, who has received specific training and is knowledgeable 
about the hazards of construction, on site at all times to conduct and 
document daily inspections of the workplace, and to identify and 
correct hazards and instances of noncompliance with project safety and 
health requirements. Workers must be instructed to report to the 
designated representative unforeseen hazards not previously identified 
or evaluated. If immediate corrective action is not possible or the 
hazard falls outside of project scope, the contractor must immediately 
notify affected workers, post appropriate warning signs, implement 
needed interim control measures, and notify DOE of the action taken. 
The contractor or the designated representative must stop work in the 
affected area until protective or mitigative measures are established.
    (b) With respect to a construction project above the monetary 
threshold established by the Davis-Bacon Act (40 U.S.C. 276a), a 
contractor must prepare a written construction project safety and 
health plan to implement the requirements of paragraph (a) of this 
section and obtain approval of the plan by DOE prior to commencement of 
any work covered by the plan. In the plan, the contractor shall 
designate the individual(s) responsible for on-site implementation of 
the plan, specify qualifications for those individuals, and provide a 
list of those project operations to which the health and safety plan 
applies.


Sec.  851.203  Fire protection.

    (a) A contractor responsible for a workplace must establish and 
implement a comprehensive fire protection and response program. This 
program must contain, at a minimum, the following elements:
    (1) A current policy statement that describes specific management 
commitments to support a level of fire protection and response 
capability sufficient to minimize the potential for losses from fire 
and related hazards consistent with the best class of protected 
property in private industry.
    (2) Comprehensive, written fire protection criteria that 
incorporate the requirements of this section, the provisions of the 
standards delineated in Sec.  851.201, and additional site-specific 
aspects of the fire protection program. Site-specific aspects include 
the organization, training, and responsibilities of the fire protection 
staff, administrative aspects of the fire protection program, and 
requirements for the design, installation, operability, inspection, 
maintenance, and testing of fire protection systems.
    (3) Written fire safety procedures governing the use and storage of 
combustible, flammable, radioactive, and hazardous materials so as to 
minimize the risk from fire. Such procedures must also exist for fire 
protection system impairments and for activities such as smoking, hot 
work, safe operation of process equipment, and other fire prevention 
measures that contribute to the decrease in fire risk.
    (4) A requirement to incorporate the DOE fire protection program in 
the plans and specifications for all new facilities and for significant 
modifications of existing facilities, including a written review by a 
qualified fire protection engineer of plans, specifications, 
procedures, and acceptance tests.
    (5) Fire hazards analyses (FHAs), developed using a graded 
approach, for all nuclear facilities, significant new facilities, and 
facilities that represent unique or significant fire safety risks.
    (6) Access to a qualified and trained fire protection staff, 
including a fire protection engineers, technicians, and fire-fighting 
personnel.
    (7) A current Baseline Needs Assessment that establishes the 
minimum required capabilities of site fire-fighting forces needed to 
assure worker safety and health. This includes minimum staffing, 
apparatus, facilities, equipment, training, fire pre-plans, off-site 
assistance requirements, and procedures. Information from this 
assessment must be incorporated into the site Emergency Plan. Such 
assessments shall be updated as needed but at least every three years.
    (8) Written pre-fire strategies, plans, and standard operating 
procedures for special hazards to enhance the effectiveness of any site 
fire-fighting forces.
    (9) A comprehensive, documented fire protection self-assessment 
program, which includes all aspects (program and facility) of the fire 
protection program. Assessments must be performed on a regular basis, 
but at least every three years.
    (10) A program to identify, prioritize, and monitor the status of 
fire protection-related appraisal findings/recommendations until final 
resolution is achieved.
    (11) Provision for interim compensatory measures to minimize fire 
risk if final resolution under paragraph (a)(10) will be significantly 
delayed.
    (12) A process for reviewing and recommending approval of fire 
safety code and standard equivalencies to the Site Manager.
    (13) Fire safety performance measures, approved by the Site 
Manager, that provide a basis for evaluating the success or failure of 
all major elements of the site fire protection and response program.
    (b) The contractor must review in-depth, and if appropriate, 
perform or update any analysis or assessment required under paragraphs 
(a)(5), (a)(7), and (a)(9) of this section at least once every three 
years. With respect to non-nuclear facilities, the Site Manager may 
approve a longer period for updating the

[[Page 3825]]

document via a written memorandum to the contractor.
    (c) A contractor responsible for the design of a new DOE facility 
or major modification to an existing DOE facility must ensure that the 
design provides:
    (1) A reliable water supply of adequate capacity for fire 
suppression.
    (2) Noncombustible or fire-resistive construction, where 
appropriate, including complete fire-rated barriers, that is 
commensurate with the fire hazard to isolate hazardous occupancies and 
to minimize fire spread.
    (3) Automatic fire extinguishing systems throughout all nuclear and 
other significant facilities and in all areas subject to significant 
life safety hazards.
    (4) A means to summon the fire department in the event of a fire, 
such as a fire alarm signaling system.
    (5) A means to notify and evacuate building occupants in the event 
of a fire, such as a fire detection or fire alarm system and 
illuminated, protected egress paths.
    (6) Physical access and appropriate equipment to facilitate 
effective intervention by the fire department, such as an interior 
standpipe system(s) in multi-story or large facilities with complex 
configurations.
    (7) Fire and related hazards that are unique to DOE and are not 
addressed by industry codes and standards shall be protected by 
isolation, segregation, or use of special fire control systems, such as 
inert gas or explosion suppression, as determined by the FHA.


Sec.  851.204  Explosives safety.

    A contractor responsible for a workplace involving the use of 
explosive materials (except materials used only for routine 
construction, demolition, and tunnel blasting) must establish and 
implement a comprehensive explosives safety program. This program must 
contain, at a minimum, the following elements:
    (a) The Contractor must establish plans and procedures to achieve:
    (1) Protection of explosives from abnormal stimuli and adverse 
environments;
    (2) Proper hazard identification, analysis, controls and 
communication;
    (3) Safe work environment, including proper personnel protection, 
safe equipment, processing, testing, and material handling, and
    (4) Effective measures for security and emergency control.
    (b) The contractor must maintain limits and controls on the maximum 
number of personnel permitted in the workplace, commensurate with 
personnel protection and work efficiency.
    (c) The contractor must require use of personal protective 
equipment in order to protect personnel from the specific hazards of 
the operations.
    (d) Pursuant to an approved training and certification program, the 
contractor must properly train personnel before they are assigned to 
explosive operations or to operate any explosive transport vehicle. 
Each contractor must have an approved training and certification 
program.
    (e) Quantity-distance criteria must account for:
    (1) The types and severity of hazards each explosive material 
present;
    (2) The construction and orientation of facilities to which the 
criteria are applied; and
    (3) The degree of protection desired for personnel and facilities 
adjacent to the explosives operations.
    (f) The contractor must base the level of protection required for 
an explosives activity on the hazard class (accident potential) for the 
explosive activity involved, as follows:
    (1) Bays for Class IV (negligible probability of accidental 
initiation) activities must provide protection from fire hazard 
effects.
    (2) Bays for Class III (low accident potential) activities must 
provide protection from explosion propagation from bay-to-bay within 
buildings and between buildings located at intra-line or magazine 
distance.
    (3) Bays for Class II (moderate accident potential) activities must 
comply with the requirements of Class III bays, and in addition provide 
protection to prevent fatalities and severe personnel injuries in all 
occupied areas other than the bay of occurrence.
    (4) Bays for Class I (high accident potential) activities must 
comply with the requirements of Class II bays, and in addition provide 
protection to prevent serious injuries to all personnel, including 
personnel performing the activity, persons in other occupied areas, and 
transients.
    (5) Bays for joint explosives-plutonium activities must also comply 
with the following:
    (i) Bays for Uncased Explosives Plutonium Activities. Where it is 
necessary to store, handle, or process uncased explosives components 
and plutonium in the same bay, the enclosing structure and its 
ventilation, electrical, fire protection, and utility systems must be 
designed to assure that, if all the explosives present should detonate, 
radiation exposures are within applicable limits for hypothesized 
accidental releases. The documented safety analysis governs the 
quantity of plutonium allowed in such a bay. Activities may be 
performed in Class IV bays if only insensitive high explosives (IHE), 
IHE subassemblies, or IHE weapons are present; however, criticality 
considerations must govern the quantity of plutonium allowed.
    (ii) Bays for Cased Explosives Plutonium Activities. When handling 
or processing cased high explosive components that contain plutonium, 
the enclosing structure must be designed as a Class II (moderate 
accident potential) explosives bay. Storage must conform to Class III 
(low accident potential) requirements. The plutonium quantity must be 
limited to 55 lbs (25 kg) per bay. Activities may be performed in Class 
IV bays if only IHE, IHE subassemblies, or IHE weapons are present; 
however, criticality considerations govern the quantity of plutonium 
allowed.
    (f) Fire protection. A comprehensive operational safety plan shall 
be developed to control personnel and facility design. Automatic fire 
suppression systems must be installed in all buildings containing high 
explosives and plutonium, with the exception of storage magazines. The 
fire protection system design must ensure that the system in any bay 
remains operable should detonation occur in any other bay. Firebreaks 
shall be established around all explosives handling facilities.
    (g) Explosive facility siting and design criteria references. 
Blast-resistant design for personnel and facility protection must be 
based on the TNT equivalency of the maximum quantity of explosives and 
propellants, plus 20 per cent. The technical basis for location, 
engineering, design, and operation (under normal and potential design 
basis accident conditions) of buildings must comply with approved 
guidelines to achieve the most conservative design for the protection 
of workers.
    (h) Electrical storms and lightning protection. The contractor must 
provide protection to personnel working in explosive areas, and 
personnel near those areas, from the consequences of an explosive 
incident resulting from a lightning strike by developing and 
implementing a Lightning Detection and Warning Plan that includes as a 
minimum:
    (1) Evaluation of lightning risk;
    (2) Lightning protection system installation, employing Mast, 
Catenary, Integral Air Terminal, surge suppressor, bonding, Faraday 
cage, or partial Faraday cage;
    (3) Techniques and procedures for initial installation of each 
approved lightning protection system;

[[Page 3826]]

    (4) Techniques and procedures for retrofitting structures to a 
partial Faraday cage type of lightning protection, if a decision is 
made to retrofit the structure; and
    (5) Administrative control such as stopping of work and evacuation 
of personnel in the event of a lightning warning.


Sec.  851.205  Pressure retaining component safety.

    (a) A contractor responsible for a workplace must establish safety 
policies and procedures to ensure that pressure systems are designed, 
fabricated, tested, inspected, maintained, repaired, and operated by 
trained and qualified personnel in accordance with applicable and sound 
engineering principles.
    (b) If national consensus codes and standards in Sec.  851.201 are 
determined not to be applicable following an independent peer review 
process, the contractor must implement DOE-approved measures ( if 
allowed by the governing provisions of the code or consensus standard) 
based upon a reasonable interpretation of the intent of existing 
standards. If the applicable provisions of the code or consensus 
standard do not permit clarification or interpretation, the contractor 
must provide equivalent protection and ensure safety equal to or 
superior to the intent of the closest applicable code or standard 
following an independent peer review process, subject to DOE approval.


Sec.  851.206  Motor vehicle safety.

    (a) A contractor responsible for a workplace must implement a motor 
vehicle safety program to protect the safety and health of all drivers 
and passengers in Government-owned or -leased motor vehicles and 
powered industrial equipment (i.e., fork trucks, tractors, platform 
lift trucks, and other similar specialized equipment powered by an 
electric motor or an internal combustion engine).
    (b) The contractor must tailor the motor vehicle safety program to 
the individual DOE site or facility, based on an analysis of the needs 
of that particular site or facility.
    (c) The motor vehicle safety program must include:
    (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; and
    (8) Enforcement provisions.


Sec.  851.207  Biological safety.

    A contractor responsible for a workplace must establish and 
implement a biological safety program that:
    (a) Establishes an Institutional Biosafety Committee (IBC) or 
equivalent. The IBC shall:
    (1) Review any work with biological etiologic agents for compliance 
with appropriate CDC, NIH, WHO, and other international, Federal, 
State, and local guidelines and assess the containment level, 
facilities, procedures, practices, and training and expertise of 
personnel; and
    (2) Review for compliance the site security, safeguards, and 
emergency management plans and procedures, as related to work with 
biological etiologic agents.
    (b) Maintains a readily retrievable inventory and status of 
biological etiologic agents, and provides 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 
etiologic and program.
    (c) Provides for submission to the head of the appropriate DOE 
field element, for review and concurrence before transmittal to the 
Center for Disease Control (CDC), 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 biological select agents.
    (d) Provides for submission to the head of the appropriate DOE 
field element a copy 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 biological select agent for transfer, 
receipt, and handling in the registered facility. Submit the completed 
copy of the Form EA-101, documenting final disposition and/or 
destruction of the select agent, within 10 days of completion of the 
Form EA-101.
    (e) Confirms that the site safeguards and security plans and 
emergency management programs address biological etiologic agents, with 
particular emphasis on biological select agents.
    (f) Establishes an immunization policy for personnel working with 
biological etiologic agents based on the DOE facility evaluation of 
risk and benefit of immunization.


Sec.  851.208  Firearms safety.

    (a) A contractor responsible for a workplace must establish 
firearms safety policies and procedures for security operations and 
training to ensure proper accident prevention controls are in place.
    (1) Written procedures must address firearms safety, engineering 
and administrative controls, as well as personal protective equipment 
requirements. For security operations conducted in accordance with 
policy on counter terrorism, use of Department of Defense military type 
masks for respiratory protection by security personnel is acceptable.
    (2) As a minimum, procedures must be established for:
    (i) Storage, handling, cleaning, inventory, and maintenance of 
firearms and associated ammunition;
    (ii) Activities such as loading, unloading, and exchanging 
firearms. These procedures must address use of bullet containment 
devices and those techniques to be used when no bullet containment 
device is available;
    (iii) Use and storage of pyrotechnics, explosives, and/or explosive 
projectiles;
    (iv) Handling misfires, duds, and unauthorized discharges;
    (v) Live fire training, qualification, and evaluation activities;
    (vi) Training and exercises using engagement simulation systems;
    (vii) Medical response at firearms training facilities; and
    (viii) Use of firing ranges by personnel other than DOE or DOE 
contractor protective forces personnel.
    (b) A contractor must ensure that personnel responsible for the 
direction and operation of the firearms safety program are 
professionally qualified and have sufficient time and authority to 
implement the procedures under this section.
    (c) A contractor must ensure that firearms instructors and armorers 
have been certified by the Safeguards and Security National Training 
Center to conduct the level of activity provided. Personnel must not be 
allowed to conduct activities for which they have not been certified.
    (d) A contractor must conduct formal appraisals assessing 
implementation of procedures, personnel responsibilities, and duty 
assignments to ensure overall policy objectives and performance

[[Page 3827]]

criteria are being met by qualified, responsible personnel.
    (e) A contractor must implement procedures related to firearms 
training, live fire range safety, qualification, and evaluation 
activities, including procedures requiring that:
    (1) Personnel must successfully complete initial firearms safety 
training before being issued any firearms. Authorization to remain in 
armed status will continue only if the employee demonstrates the 
technical and practical knowledge of firearms safety semi-annually;
    (2) Authorized armed personnel must demonstrate through documented 
limited scope performance tests both technical and practical knowledge 
of firearms handling and safety on a semi-annual basis;
    (3) All firearms training lesson plans must incorporate safety for 
all aspects of firearms training task performance standards. The lesson 
plans must follow the standards set forth by the Safeguards and 
Security Central Training Academy's standard training programs;
    (4) Firearms safety briefings must immediately precede training, 
qualifications, and evaluation activities involving live fire and/or 
engagement simulation systems;
    (5) A safety analysis approved by DOE line management must be 
developed for the facilities and operation of each live fire range 
prior to implementation of any new training, qualification, or 
evaluation activity. Results of these analyses must be incorporated 
into procedures, lesson plans, exercise plans, and limited scope 
performance tests;
    (6) Firing range safety procedures must be conspicuously posted at 
all primary range facilities;
    (7) Live fire ranges, approved by the Site Manager, must be 
properly sited to protect personnel on the range, as well as personnel 
and property not associated with the range.
    (f) Contractors must develop a safety or risk analysis for all 
facilities or areas in which firearms will be introduced in accordance 
with the local protection strategy. Such analyses must be approved by 
DOE line management.
    (g) Contractors must ensure that the transportation, handling, 
placarding, and storage of munitions conform to the applicable 
requirements of DOE policy directives.


Sec.  851.209  Industrial hygiene.

    (a) A contractor responsible for a covered workplace must implement 
a comprehensive and effective industrial hygiene program to reduce the 
risk of work-related disease or illness.
    (b) The industrial hygiene program must include the following 
elements:
    (1) Initial or baseline surveys of all work areas or operations to 
identify and evaluate potential worker health risks;
    (2) Coordination with planning and design personnel to anticipate 
and control health hazards that proposed facilities and operations 
would introduce;
    (3) Coordination with cognizant occupational medical, 
environmental, health physics, and work planning professionals;
    (4) Policies and procedures to mitigate the risk from identified 
and potential occupational carcinogens; and
    (5) Professionally and technically qualified industrial hygienists 
to manage and implement the industrial hygiene program.


Sec.  851.210  Occupational medicine.

    (a) A contractor responsible for a covered workplace must establish 
and maintain an Occupational Medical Program (OMP) to provide 
comprehensive occupational health services to contractor employees. At 
sites with operations performed by more than one contractor, several 
contractors may agree to use services provided under a single 
contractor's OMP. A contractor having no employees who work on the DOE 
site for 30 or more days in a year and who has no workers enrolled in a 
medical surveillance program, regardless or length of employment, is 
not required to have an OMP.
    (b) The OMP must be directed by a site occupational medical 
director (SOMD) who must be a graduate of a school of medicine or 
osteopathy and licensed for the practice of medicine in the state in 
which the site is located.
    (c) Occupational medical physicians, occupational health nurses, 
physician's assistants, nurse practitioners, psychologists, and other 
occupational health personnel on the OMP staff must be licensed, 
registered, or certified as required by Federal or State law where 
employed.
    (d) A contractor must promote communication and coordination 
between all environmental, safety, and health groups and specifically 
provide the SOMD with the following:
    (1) Current information about actual or potential work-related site 
hazards (chemical, physical, biological, or ergonomic);
    (2) Employee job-task and hazard-analysis information, including 
essential job functions;
    (3) Actual or potential work-site exposures of each employee prior 
to medical placement or surveillance evaluations;
    (4) Notification of employee job transfers;
    (5) Notification when an employee has been absent because of an 
injury or illness for more than 5 consecutive workdays (or an 
equivalent time period for those individuals on an alternative work 
schedule);
    (6) Information on, and the opportunity to participate in, worker 
health protection team meetings and committees;
    (7) Access to the workplace for evaluation of job conditions and 
issues relating to workers' health;
    (e) The SOMD, or designated OMP staff, must:
    (1) Plan and implement the OMP;
    (2) Prepare, review and update annually a formal written plan 
detailing the methods and procedures implementing the OMP and 
documenting the contractor's compliance with this subsection; and
    (3) Participate in worker protection teams to build and maintain 
necessary partnership among workers, managers, and safety and health 
professionals in establishing and maintaining a safe and healthful 
workplace.
    (f) A record, containing any medical, clinical, health history, 
exposure history, and demographic data collected under the OMP, must be 
developed and maintained for each employee for whom medical services 
are provided. Beginning January 2007, all OMP medical records should be 
kept in an electronic format.
    (1) Employee medical, psychological, and assistance records must be 
kept confidential, protected from unauthorized access, and stored under 
conditions that ensure their long-term preservation. Access to these 
records shall be provided in accordance with DOE Privacy Act 
implementing regulations.
    (2) The SOMD must determine the content of the worker health 
evaluations, which must be conducted under the direction of a licensed 
physician, in accordance with current sound and acceptable medical 
practices and all pertinent statutory and regulatory requirements, such 
as the Americans with Disabilities Act.
    (3) Each SOMD must maintain an up-to-date list of all evaluations 
and tests that are offered, submit the list annually through the 
cognizant Field Element to the Office of Environment, Safety and 
Health, and make this list openly available to all site workers.
    (4) The purpose and nature of these medical tests and their results 
must be

[[Page 3828]]

clearly communicated verbally and in writing to each worker offered 
testing;
    (5) The communication must be documented in the medical chart by 
the signature of the occupational health examiner and the worker.
    (6) The following health evaluations must be conducted when 
determined necessary by the SOMD for the purpose of providing initial 
and continuing assessment of employee fitness for duty:
    (i) At the time of employment entrance or job transfer, a Medical 
Placement examination will evaluate the individual's general health and 
physical and emotional capacity to perform work to establish a baseline 
record of physical condition and assure fitness for duty.
    (ii) Periodic hazard-based medical monitoring or qualification-
based fitness for duty evaluations required by regulations and 
standards, or as recommended by the SOMD, will be provided on the 
frequency required.
    (iii) Diagnostic examinations will evaluate employee's injuries and 
illnesses to determine work-relatedness, the degree of disability, and 
if needed, referral for definitive care.
    (iv) After a work-related absence or an absence of 5 or more 
consecutive workdays (or an equivalent time period for those 
individuals on an alternative work schedule), a return to work 
evaluation will determine the individual's physical and emotional 
capacity to perform work and return to duty.
    (v) At the time of separation from employment, the individual's 
general health will be evaluated to establish a record of physical 
condition.
    (g) The SOMD must place an individual under medical restrictions 
when health evaluations so indicate that the worker should not perform 
certain job tasks.
    (1) The SOMD or designee must notify the worker and contractor 
management when employee work restrictions are imposed or removed.
    (2) The OMP must monitor ill and injured workers to facilitate 
their rehabilitation and safe return to work and to minimize lost time 
and its associated costs.
    (3) Occupational medical physicians and medical staff must, on a 
timely basis, communicate results of health trend evaluations to 
management and site worker health protection professionals responsible 
for mitigating worksite hazards.
    (h) The SOMD must review and approve the medical and behavioral 
aspects of employee counseling and health promotional programs, 
including the following types:
    (1) Contractor-sponsored or contractor-supported employee 
assistance programs;
    (2) Contractor-sponsored or contractor-supported alcohol and other 
substance abuse rehabilitation programs; and
    (3) Contractor-sponsored or contractor-supported wellness programs.
    (4) The SOMD must review the medical aspects of immunization 
programs, blood-borne pathogens programs, and bio-hazardous waste 
programs to evaluate their conformance to applicable guidelines.
    (i)(1) The SOMD must review and develop procedures consistent with 
the medical portion of the site emergency and disaster preparedness 
plans.
    (2) The SOMD and staff must integrate the medical portion with 
nearby community emergency and disaster plans.

Subpart D--Exemption Relief


Sec.  851.300  Exemptions.

    (a) The Cognizant Secretarial Officer who is primarily responsible 
for the contractor activity to which a worker safety and health 
requirement applies may grant a temporary or permanent exemption from 
that requirement.
    (b) The Cognizant Secretarial Officer:
    (1) Must provide a copy of the exemption request and supporting 
documentation to the Assistant Secretary for Environment, Safety and 
Health for a thirty day review;
    (2) May not grant the exemption prior to the conclusion of the 
thirty day review period unless the Assistant Secretary for 
Environment, Safety and Health comments earlier; and
    (3) If the Cognizant Secretarial Officer is not part of NNSA, may 
not grant the exemption if the Assistant Secretary for Environment, 
Safety and Health non-concurs during the thirty day review period.
    (c) An exemption must set forth in writing:
    (1) The requirement for which the exemption is granted;
    (2) The basis for the determination that the criteria in Sec.  
851.301 have been met;
    (3) The workplaces to which and the circumstances under which the 
exemption applies; and
    (4) Any terms and conditions to which the exemption is subject.
    (d) The authority to grant or deny exemptions may not be delegated.


Sec.  851.301  Exemption criteria.

    (a) An exemption to a worker safety and health requirement must:
    (1) Be consistent with law;
    (2) Adequately protect the health and safety of workers;
    (3) Be consistent with a safe and healthful workplace free from 
recognized hazards that are causing or are likely to cause death or 
serious bodily injury;
    (4) Not permit exposure limits that are less protective than the 
limits required by this part or not otherwise diminish the level of 
protection afforded workers; and
    (5) Involve one of the ``special circumstances'' as set forth in 
paragraph (b) of this section.
    (b) With respect to a particular work environment, ``special 
circumstances'' means a situation in which:
    (1) Application of the requirement leads to a conflict with another 
applicable statutory, regulatory or contractual requirement; or
    (2) Application of the requirement would not serve its underlying 
purpose;
    (3) Application of the requirement is not necessary to achieve its 
underlying purpose and results in resource impacts that are not 
justified by the safety improvements; or
    (4) Application of the requirement would result in a situation 
significantly different than that contemplated when the requirement was 
adopted, or significantly different than that encountered by others 
similarly situated; or
    (5) The exemption would result in benefit to worker safety and 
health that compensates for any detriment that may result from the 
grant of the exemption; or
    (6) Circumstances exist that would justify temporary relief from 
application of the requirement while taking good faith action to 
achieve compliance; or
    (7) There is present any other material circumstance not considered 
when the requirement was adopted for which it would be in the public 
interest to grant an exemption; or
    (8) An exemption would contribute to tailoring the requirements of 
this part to reflect the hazards and facilities associated with a 
particular work environment; or
    (9) The facility is to be permanently closed and demolished, or 
title is expected to be transferred to another entity for reuse; or
    (10) An exemption would contribute substantially to achieving a 
national security mission of the Department of Energy in an efficient 
and timely manner.


Sec.  851.302  Terms and conditions.

    An exemption may contain terms and conditions including provisions 
that:

[[Page 3829]]

    (a) Limit its duration;
    (b) Require alternative action;
    (c) Require partial compliance; or
    (d) Establish a schedule for full or partial compliance.

Subpart E--Enforcement Process


Sec.  851.400  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) Contractors must fully cooperate with the Director during all 
phases of the enforcement process and provide complete and accurate 
records and documentation as requested by the Director during 
investigation or inspection activities. Contractors who attempt to 
falsify records or documentation or otherwise mislead the Director 
during the enforcement process will be subject to full and unmitigated 
enforcement of this part, and such cases may be referred to the 
Department of Justice by the Director for potential criminal 
investigation.
    (c) 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.
    (d) 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. However, no prior notice of an inspection need be 
provided to a contractor.
    (e) 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.
    (f) 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.
    (g) 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.
    (h) 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.
    (i) 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.
    (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 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.  851.401  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 is not required to admit in a consent order that a 
requirement of this part has been violated.
    (3) DOE is not required 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.  851.402  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 requirement 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.  851.403  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

[[Page 3830]]

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.  851.45:
    (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.  851.404  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.  851.405  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.--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 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 (``AAEA'') 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, or 
otherwise 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 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 it makes 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: (1) Conduct enforcement 
inspections, investigations, and conferences; (2) issue Notices of 
Violations and proposed civil penalties, Enforcement Letters, 
Consent Orders, and subpoenas; and (3) issue 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

[[Page 3831]]

following actions that direct NNSA contractors: (1) Subpoenas; (2) 
Orders to compel attendance; (3) Disclosure of information or 
documents obtained during an investigation or inspection; (4) 
Preliminary Notices of Violations; and (5) 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 E, 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: (1) Admitting the violation and waiving its right to 
contest the proposed civil penalty and paying it; (2) admitting the 
violation but asserting the existence of mitigating circumstances 
that warrant either the total or partial remission of the civil 
penalty; or (3) 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: (1) that no violation has occurred; (2) that the 
violation occurred as alleged in the PNOV but that the proposed 
civil penalty should be remitted in whole or in part, or; (3) 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 851.45. 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 two 
levels of severity to identify their relative seriousness. Notices 
of Violation issued for noncompliance 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:
    (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).
    (c) De minimis violations, defined as a deviation from the 
requirement of a standard that has no direct or immediate 
relationship to safety or health, 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.
    (g) The Director may consider the extent to which facility-
related and legacy hazards have been mitigated through the use of 
administrative controls and/or personal protective equipment in 
determining whether a citation will be issued.

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 final 
enforcement action. The enforcement conference may be conducted 
onsite at the conclusion of a field investigation/inspection. 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: (1) Assure 
the accuracy of the facts upon which the preliminary determination 
to consider enforcement action is based; (2) discuss the potential 
or alleged violations, their significance and causes, and the nature 
of and schedule for the DOE contractor's corrective actions; (3) 
determine whether there are any aggravating or mitigating 
circumstances; and (4) obtain other information which will help 
determine whether enforcement action is appropriate and, if so, the 
extent of that 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

[[Page 3832]]

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, 
address additional areas requiring the contractor's attention, and 
address DOE's expectations for corrective action.
    (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.
    (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 its review 
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 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 have 
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, or 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 up to $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) The Director will coordinate all violations with 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: (1) Is 
especially egregious; (2) indicates a general failure to perform 
under the contract with respect to worker safety and health; or (3) 
where the responsible DOE line management believes a violation 
requires swift enforcement and corrective action. The responsible 
DOE line management 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. A notice of violation may still be issued should the 
election of a contract fee reduction be made. In such cases, the 
notice of violation will not include a civil penalty. The notice of 
violation will indicate that no civil penalty is being imposed 
because DOE has elected a contract fee reduction as the remedy.

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.

[[Page 3833]]

    (c) DOE will impose different base level penalties considering 
the severity level of the violation by Price-Anderson indemnified 
contractors. Table A-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) Enforcement personnel will utilize risk-based criteria to 
assist the Director in determining appropriate civil penalties for 
violations found during investigations and inspections.
    (e) 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.
    (f) 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 A-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 A-1.--Severity Level Base Civil Penalties
------------------------------------------------------------------------
                                                            Base civil
                                                         penalty  amount
                                                            (Percentage
                     Severity level                      of maximum  per
                                                          violation  per
                                                               day)
------------------------------------------------------------------------
I......................................................              100
II.....................................................               50
------------------------------------------------------------------------

3. Adjustment Factors

    (a) DOE's enforcement program is not an end in itself, but a 
means to achieve compliance with the worker safety and health 
requirements in this part, and civil penalties are intended 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 up to 50% of the base civil penalty shown in Table 
A-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 are expected, however, to 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.

[[Page 3834]]

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. 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. 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. 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 constitute the type of proactive behavior necessary to prevent 
significant events from occurring and thereby to the improvement in 
worker safety and health.
    (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 performance 
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 A-1. For example, 
very extensive corrective action may result in DOE's reducing the 
proposed civil penalty up to 50% from the base value shown in Table 
A-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 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 851.5, 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 851.7, 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;

[[Page 3835]]

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

[FR Doc. 05-1203 Filed 1-25-05; 8:45 am]
BILLING CODE 6450-01-P