[Federal Register Volume 71, Number 27 (Thursday, February 9, 2006)]
[Rules and Regulations]
[Pages 6858-6948]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-964]



[[Page 6857]]

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Part II





Department of Energy





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10 CFR Parts 850 and 851



Chronic Beryllium Disease Prevention Program; Worker Safety and Health 
Program; Final Rule

  Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / 
Rules and Regulations  

[[Page 6858]]


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DEPARTMENT OF ENERGY

10 CFR Parts 850 and 851

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


Chronic Beryllium Disease Prevention Program; Worker Safety and 
Health Program

AGENCY: Department of Energy

ACTION: Final rule.

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SUMMARY: The Department of Energy (DOE) is today publishing a final 
rule to implement the statutory mandate of section 3173 of the Bob 
Stump National Defense Authorization Act (NDAA) for Fiscal Year 2003 to 
establish worker safety and health regulations to govern contractor 
activities at DOE sites. This program codifies and enhances the worker 
protection program in operation when the NDAA was enacted.

EFFECTIVE DATE: This rule is effective February 9, 2007. The 
incorporation by reference of certain publications listed in this rule 
is approved by the Director of the Federal Register as of February 9, 
2007.

FOR FURTHER INFORMATION CONTACT: Jacqueline D. Rogers, U.S. Department 
of Energy, Office of Environment, Safety and Health, EH-52, 1000 
Independence Avenue, SW., Washington, DC 20585, 202-586-4714.

SUPPLEMENTARY INFORMATION:
I. Introduction
II. Legal Authority and Relationship to Other Regulatory Programs
    A. Legal Authority
    B. Relationship to Other Regulatory Programs
III. Overview of the Final Rule
IV. Section-by-Section Discussion of Comments and Rule Provisions
    A. Subpart A--General Provisions
    B. Subpart B--Program Requirements
    C. Subpart C--Specific Program Requirements
    D. Subpart D--Variances
    E. Subpart E--Enforcement Process
    F. Appendix A--Worker Safety and Health Functional Areas
    G. Appendix B--General Statement of Enforcement Policy
V. Procedural Review Requirements
    A. Review Under Executive Order 12866
    B. Review Under Executive Order 12988
    C. Review Under Executive Order 13132
    D. Review Under Executive Order 13175
    E. Review Under the Regulatory Flexibility Act
    F. Review Under the Paperwork Reduction Act
    G. Review Under the National Environmental Policy Act
    H. Review Under the Unfunded Mandates Reform Act
    I. Review Under Executive Order 13211
    J. Review Under the Treasury and General Government 
Appropriations Act, 1999
    K. Review Under the Treasury and General Government 
Appropriations Act, 2001
    L. Congressional Notification
VI. Approval of the Office of the Secretary

Introduction

    This final rule implements a worker safety and health program for 
the Department of Energy (DOE or the Department). This program 
establishes the framework for a worker protection program that will 
reduce or prevent occupational injuries, illnesses, and accidental 
losses by requiring DOE contractors to provide their employees' with 
safe and healthful workplaces. Also, the program establishes procedures 
for investigating whether a requirement has been violated, for 
determining the nature and extent of such violation, and for imposing 
an appropriate remedy.
    In December 2002, Congress directed DOE to promulgate regulations 
on worker safety and health regulations to cover contractors with 
Price-Anderson indemnification agreements in their contracts. 
Specifically, section 3173 of the National Defense Authorization Act 
(NDAA) amended the Atomic Energy Act (AEA) to add section 234C 
(codified as 42 U.S.C. 2282c), which requires DOE to promulgate worker 
safety and health regulations that maintain ``the level of protection 
currently provided to * * * workers.'' See Public Law 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 or demolished, or which title is 
expected to be transferred; and to achieve national security missions 
in an efficient and timely manner (42 U.S.C. 2282c(3)). 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 for violations of nuclear safety regulations. Section 234C 
also directs DOE to insert in such contracts a clause providing for 
reducing contractor fees and other payments if the contractor or a 
contractor employee violates 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 
(NOPR) 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 safety and health regulations would give DOE 
workers a level of protection equivalent to that afforded them when 
section 3173 was enacted. 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,'' March 27, 1998 
(the current DOE order on worker safety and health) or a tailored set 
of requirements approved by DOE. The contractor would implement these 
requirements pursuant to a worker safety and health program approved by 
DOE.
    On January 8, 2004, DOE held a televideo conference to allow DOE 
employees, DOE contractors, contractor employees, and employee 
representatives to become familiar with the proposal. DOE held public 
hearings on the proposal in Washington, DC, on January 21, 2004, and in 
Golden, Colorado, via televideo on February 4, 2004. In addition to the 
oral comments at the public hearings, DOE received approximately 50 
written comments on the December proposal.
    After becoming aware that the Defense Nuclear Facilities Safety 
Board (DNFSB), which has safety oversight responsibility with regard to 
DOE nuclear facilities, had concerns about the proposed rule, DOE 
suspended the rulemaking by publishing a notice in the Federal Register 
on February 27, 2004 (69 FR 9277). DOE stated in that notice that DOE 
would consult with the DNFSB in order to resolve its concerns, and also 
that it would consider views received from other stakeholders on its 
proposal.
    As a result of its consultation with the DNFSB and consideration of 
other comments, DOE published a supplemental notice of proposed 
rulemaking (SNOPR) in the Federal Register (70 FR 3812) on January 26, 
2005. The SNOPR proposed to (1) codify a minimum set of safety and 
health requirements with which contractors would have to comply; (2) 
establish a formal exemption process which would require approval by 
the Secretarial Officer with line management responsibility and which 
would provide significant involvement of the Assistant Secretary for 
Environment, Safety and Health; (3) delineate the role of the worker 
health and safety 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 and DOE sites.

[[Page 6859]]

    On March 23, 2005, DOE held a televideo forum to provide DOE 
contractors, contractor employees, and their representatives with the 
opportunity to ask questions and receive clarification on the 
provisions of the supplemental proposed rule. The public comment period 
for the supplemental proposal ended on April 26, 2005. During this 
period, DOE received 62 comment letters from private individuals, DOE 
contractors, other Federal agencies, and trade associations in response 
to the supplemental proposal. In addition, public hearings were held on 
March 29 and 30, 2005, in Washington, DC. Responding to a request from 
the Paper, Allied-Industrial, Chemical and Energy Workers International 
Union, DOE also held a public hearing on April 21, 2005, in Richland, 
Washington, via televideo.
    DOE has carefully considered the comments and data from interested 
parties, and other information relevant to the subject of the 
rulemaking.

II. Legal Authority and Relationship to Other Regulatory Programs

A. Legal Authority

    DOE has broad authority to regulate worker safety and health with 
respect to its nuclear and nonnuclear functions pursuant to the Atomic 
Energy Act of 1954 (AEA), 42 U.S.C. 2011 et seq.; the Energy 
Reorganization Act of 1974 (ERA), 42 U.S.C. 5801-5911; and the 
Department of Energy Organization Act (DOEOA), 42 U.S.C. 7101-7352. 
Specifically, the AEA authorized and directed the Atomic Energy 
Commission (AEC) to protect health and promote safety during the 
performance of activities under the AEA. See Sec. 31a.(5) of AEA, 42 
U.S.C. 2051(a)(5); Sec. 161b. of AEA, 42 U.S.C 2201(b); Sec. 161i.(3) 
of AEA, 42 U.S.C. 2201(i)(3); and Sec. 161p. of AEA, 42 U.S.C. 2201(p). 
The ERA abolished the AEC and replaced it with the Nuclear Regulatory 
Commission (NRC), which became responsible for the licensing of 
commercial nuclear activities, and the Energy Research and Development 
Administration (ERDA), which became responsible for the other functions 
of the AEC under the AEA, as well as several nonnuclear functions. The 
ERA authorized ERDA to use the regulatory authority under the AEA to 
carry out its nuclear and nonnuclear function, including those 
functions that might become vested in ERDA in the future. See Sec. 
105(a) of ERA, 42 U.S.C. 5815(a); and Sec. 107 of ERA, 42 U.S.C. 5817. 
The DOEOA transferred the functions and authorities of ERDA to DOE. See 
Sec. 301(a) of DOEOA, 42 U.S.C. 7151(a); Sec. 641 of DOEOA, 42 U.S.C. 
7251; and Sec. 644 of DOEOA, 42 U.S.C. 7254.

B. Relationship to Other Regulatory Programs

    DOE (like its predecessors, AEC and ERDA) has implemented this 
authority in a comprehensive manner by incorporating appropriate 
provisions on worker safety and health into the contracts under which 
work is performed at DOE workplaces. During the past decade, DOE has 
taken steps to ensure that contractual provisions on worker safety and 
health are tailored to reflect particular workplace environments. In 
particular, the ``Integration of Environment, Health and Safety into 
Work Planning and Execution'' clause set forth in the DOE procurement 
regulations requires DOE contractors to establish an integrated safety 
management system (ISMS). See 48 Code of Federal Regulations (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. See 
48 CFR 970.0470-2 and 970.5204-2.
    Currently DOE Order 440.1A, ``Worker Protection Management for DOE 
Federal and Contractor Employees,'' establishes requirements for a 
worker safety and health program. A DOE contractor with DOE Order 
440.1A in its contract must have a worker protection program as 
stipulated by the Contractor Requirements Document (CRD) that 
accompanies the order. DOE applies these requirements through the 
incorporation of the CRD into relevant DOE contracts. In accordance 
with the CRD, contractors must implement a written worker protection 
program that integrates the performance-based requirements outlined in 
the CRD. A series of implementation guides and technical standards are 
available to assist DOE contractors in developing and implementing a 
worker protection program that will meet the intent of the performance-
based requirements.
    Also, DOE contractors are required to implement a worker safety and 
health program that is consistent with the ``Integration of 
Environment, Health and Safety into Work Planning and Execution'' 
clause set forth in the DOE procurement regulations. See 48 CFR 
952.223-71, 970.5223-1.
    Overview of DOE Order 440.1A. DOE Order 440.1A establishes a 
comprehensive worker protection program that provides the basic 
framework necessary for contractors to ensure the safety and health of 
their workforce. In short, the Order provides a well-integrated, cost-
effective, performance-based program designed to ensure contractors 
recognize hazards, prevent accidents before they happen, and protect 
the lives and well-being of their employees.
    Such ``corporate'' programs have long been recognized by private 
industry as the most effective and efficient means to protect worker 
health and safety on the job. Where applied, these programs have 
consistently resulted in enhanced worker protection, decreased worker's 
compensation premiums, increased productivity and employee morale, 
declines in absenteeism and employee turnover, and decreased employer 
liability. The Occupational Safety and Health Administration (OSHA) 
recognized the effectiveness of such programs in its Safety and Health 
Program Management Guidelines (published in 1989), which were derived 
from the safety and health programs of private industry firms with the 
best safety and health performance records. DOE Order 440.1A program 
requirements are organized and consistent with the four basic program 
elements of OSHA's Guidelines on Workplace Safety and Health Management 
(i.e., (1) management commitment and employee involvement, (2) worksite 
analysis, (3) hazard prevention and control, and (4) training).
    DOE Order 440.1A specifically requires contractors to implement a 
written worker protection program that describes site-specific methods 
for complying with the requirements of the order; establish written 
policies, goals, and objectives to provide a focus for, and foster 
continual improvement of, their worker protection programs; and 
identify existing and potential workplace hazards, evaluate associated 
risks, and implement appropriate risk-based controls. In addition, the 
order establishes (1) worker rights and responsibilities that are 
consistent with those afforded to private industry employees through 
Federal regulations and (2) baseline safety and health requirements in 
specific technical disciplines.
    The order encompasses all worker protection disciplines, including 
occupational safety, industrial hygiene, fire protection (worker 
protection

[[Page 6860]]

aspects only), construction safety, explosives safety, contractor 
occupational medical care, pressure safety, firearms safety, and motor 
vehicle safety. Where necessary, the order cross-references related 
elements of other orders--such as training, accident investigation, and 
safety and health reporting orders--without duplicating their 
respective requirements.
    Overview of Integrated Safety Management (ISM). A major concept of 
ISM is the integration of safety awareness and good practices into all 
aspects of work conducted at DOE. Simply stated, work should be 
conducted in such a manner that protects workers and other people, and 
does not cause harm to the environment. Safety is an integral part of 
each job, not a stand-alone program.
    ISM has seven guiding principles and five core functions. The seven 
guiding principles of ISM are:
    (1) Line management responsibility. Line management is directly 
responsible for the protection of the public, the workers, and the 
environment. As a complement to line management, the Office of 
Environment, Safety and Health (EH) provides safety policy, 
enforcement, and independent oversight functions.
    (2) Clear roles and responsibilities. Clear and unambiguous lines 
of authority and responsibility for ensuring safety must be established 
and maintained at all organized levels within the Department and its 
contractors.
    (3) Competence commensurate with the responsibility. Personnel must 
possess the experience, knowledge, skills, and abilities that are 
necessary to discharge their responsibilities.
    (4) Balanced priorities. Resources must be effectively allocated to 
address safety, programmatic, and operational considerations. 
Protecting the public, the workers, and the environment must be a 
priority whenever activities are planned and performed.
    (5) Identification of safety standards and requirements. Before 
work is performed, the associated hazards must be evaluated and an 
agreed-upon set of safety standards and requirements must be 
established which, if properly implemented, will provide adequate 
assurance that the public, the workers, and the environment are 
protected from adverse consequences.
    (6) Hazard control tailored to work being performed. Administrative 
and engineering controls to prevent and mitigate hazards must be 
tailored to the work being performed and the associated hazards.
    (7) Operations authorization. The conditions and requirements to be 
satisfied for operations to be initiated and conducted must be clearly 
established and agreed-upon.
    The five core functions of ISM are: (1) Define the scope of work; 
(2) identify and analyze hazards associated with the work; (3) develop 
and implement hazard controls; (4) perform work within controls; and 
(5) provide feedback on adequacy of controls and continue to improve 
safety management.
    Consistency with DOE Order 440.1A and Integrated System Management. 
This final rule builds on existing contract practices and processes to 
achieve safe and healthful workplaces. The rule is intended to be 
complementary to DOE Order 440.1A and ISM. Accordingly, DOE expects 
contractors to comply with the requirements of this rule in a manner 
that takes advantage of work already done as part of DOE Order 440.1A 
and ISM and to minimize duplicative or otherwise unnecessary work.
    As a general matter, DOE expects that, if contractors at a DOE site 
have fulfilled their contractual responsibilities for DOE Order 440.1A 
and ISM properly, little, if any, additional work will be necessary to 
implement the written worker safety and health program required by this 
regulation. Contractors should undertake new analyses and develop new 
documents only to the extent existing analyses and documents are not 
sufficient for purposes of this regulation. In determining the 
allowability of costs incurred by contractors to develop approved 
worker safety and health programs, the Department will consider whether 
the amount and nature of a contractor's expenditures are necessary and 
reasonable in light of the fact that the contractor has an approved ISM 
system in place.

III. Overview of the Final Rule

    This final rule codifies the Department's worker protection program 
requirements established in DOE Order 440.1A, ``Worker Protection 
Management for DOE Federal and Contractor Employees.'' Consistent with 
the intent of Congress, DOE Order 440.1A forms the basis for the rule's 
substantive requirements. The Conference Committee for the NDAA 
recognized that contractors currently operate under this order, ``which 
provides an adequate level of safety.'' (Conference Report 107-772, 
November 12, 2002, at 797.)
    The Department has structured the final rule this way for three 
main reasons: (1) To take advantage of existing and effective 
comprehensive worker protection programs that have been implemented by 
contractors at DOE sites; (2) to minimize the burden on DOE contractors 
by clarifying that contractors need not establish redundant worker 
protection programs to comply with the proposed rule; and (3) to build 
on a successful program, given that DOE Order 440.1A has been 
successfully and effectively implemented by DOE contractors for close 
to a decade. DOE believes that basing this rule on DOE Order 440.1A is 
consistent with section 234C of the NDAA which directs the Department 
to promulgate regulations which provide a level of protection that is 
``substantially equivalent to the level of protection currently 
provided to'' these workers (41 U.S.C. 2282c(a)(1)). Consistent with 
DOE Order 440.1A, this final rule establishes requirements for an 
effective worker safety and health program that will reduce or prevent 
injuries, illnesses, and accidental losses by providing DOE contractors 
and their workers with a safe and healthful workplace.
    In basing the final rule on DOE Order 440.1A, DOE intends to take 
advantage of the existing series of implementation guides developed to 
assist DOE contractors in implementing the provisions of DOE Order 
440.1A. Shortly after publication of this rule, DOE expects to publish 
updated implementation guides revised to specifically address the 
provisions of the final rule. Consistent with their use under DOE Order 
440.1A, these updated guides will provide supplemental information and 
describe acceptable methods for implementing the performance-based 
requirements of the rule. DOE contractors are free to use the guidance 
provided in these non-mandatory documents or to develop and implement 
their own unique methods for compliance, provided that these methods 
afford workers a level of protection equal to or greater than that 
which would satisfy the rule's requirements. DOE believes that the 
availability of these updated guides will also further assist in 
ensuring a seamless transition from coverage under DOE Order 440.1A to 
regulation under 10 CFR part 851.
    To ensure appropriate enforcement of the worker safety and health 
program the rule also establishes requirements and procedures for 
investigating the nature and extent of a violation, determining whether 
a violation has occurred, and imposing an appropriate remedy.
    The Department has made changes in this final rule after 
considering the

[[Page 6861]]

concerns of the commenters with the supplemental notice of proposed 
rulemaking published in the Federal Register on January 26, 2005 (70 FR 
3812). The principal changes are as follows:
    (1) The final rule codifies key worker safety and health standards 
from DOE Order 440.1A with which contractors must comply.
    (2) The final rule establishes a formal variance process that 
requires approval by the Under Secretary with line management 
responsibility for the contractor that is requesting the variance, 
after considering the recommendations of the Assistant Secretary for 
Environment Safety and Health. The rule adds detailed procedures in 
(Subpart D) whereby a contractor can obtain a variance from a specific 
worker safety and health standard or a portion of the standard. These 
procedures will ensure that variances are only granted where warranted 
and where an equivalent level of protection is provided through other 
means.
    (3) The final rule establishes updates to functional areas. These 
updates are intended to ensure the function areas more closely reflect 
the requirements of DOE Order 440.1A.
    (4) The final rule recognizes the value of a central technical 
authority and the importance of senior DOE management involvement. The 
Assistant Secretary for Environment, Safety and Health has played a 
central role in the development of the final rule and will continue to 
play a central role in its implementation and enforcement. In addition 
to providing technical guidance and assistance, the Assistant Secretary 
is responsible for recommending to the Under Secretary whether to grant 
or deny a variance. The Office of Price-Anderson Enforcement, which 
reports to the Assistant Secretary, is responsible for investigating 
potential violations and deciding whether to take certain enforcement 
actions against the contractor, including the imposition of civil 
penalties for all facilities. The final rule makes the Under Secretary 
with line management responsibility for a contractor responsible for 
deciding whether to grant a variance to the contractor.
    The provisions of the rule are presented in five main subparts. 
Subpart A describes the scope, purpose, and applicability of the rule, 
defines terms that are critical to the rule's application and 
implementation, and establishes contractor responsibilities for 
executing the rule. Subpart B establishes program requirements to 
develop and maintain a worker safety and health program and to perform 
safety and health activities in accordance with the approved program. 
Subpart C establishes provisions that focus on management 
responsibilities and worker rights, protecting the worker from the 
effects of safety and health hazards by requiring hazard identification 
and assessment, hazard prevention and abatement, specific regulatory 
requirements, functional areas provisions, recordkeeping and program 
evaluations. Subpart D establishes the criteria and procedures for 
requesting a variance. Subpart E establishes the enforcement process.
    To ensure that the Department captured the entire list of 
contractor requirements specified in DOE Order 440.1A, the Department 
developed a ``crosswalk'' of the requirements in the current DOE order 
and the final provisions of 10 CFR part 851. See Table 1.

  Table 1.--Crosswalk of DOE Order 4401.1A Requirements and 10 CFR 851
                         Final Rule Requirements
------------------------------------------------------------------------
                                             Corresponding 10 CFR 851
     DOE order 440.1A requirements                  provisions
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1. Objective...........................  .1 Purpose
3.b. Applicability.....................  .1 Scope
 
3.c. Exclusions........................  .2 Exclusions
----------------------------------------
             Attachment 2--Contractor Requirements Document
------------------------------------------------------------------------
 The contractor shall comply with the    .24 Functional areas.
 requirements below; however, the
 requirements for the specific
 functional areas that are addressed in
 paragraphs 14 through 22 apply only if
 the contractor is involved in these
 activities.
1. Implement a written worker            .11(a), .12 Preparation and
 protection program that:.                submission of worker safety
                                          and health program
                                          Implementation.
1.a. Provide a place of employment free  .10(a)(1) General requirements.
 from recognized hazards that are
 causing or are likely to cause death
 or serious physical harm to employees;
 and.
1.b. Integrates all requirements         .11(a)(3) (ii) Preparation and
 contained in this attachment and other   submission of worker safety
 related site-specific worker             and health program.
 protection activities.
2. Establish written policy, goals, and  .20(a)(1) Management
 objectives for the worker protection     responsibilities.
 program.
3. Use qualified worker protection       .20(a)(2) Management
 staff to direct and manage the worker    responsibilities.
 protection program.
4. Assign worker protection              .20(a)(3) Management
 responsibilities, evaluate personnel     responsibilities.
 performance, and hold personnel
 accountable for worker protection
 performance.
5. Encourage employee involvement in     .20(a)(4) Management
 the development of program goals,        responsibilities.
 objective, and performance measures
 and in the identification and control
 of hazards in the workplace.
6. Provide workers the right, without    .20(a)(6) Management
 reprisal, to:.                           responsibilities.
6.a. Accompany DOE worker protection     .20(b)(5) Worker rights.
 personnel during workplace
 inspections;.
6.b. Participate in activities provided  .20(b)(1) Worker rights.
 for herein on official time;.
6.c. Express concerns related to worker  .20(b)(7) Worker rights.
 protection;.

[[Page 6862]]

 
6.d. Decline to perform an assigned      .20(b)(8) Worker rights.
 task because of a reasonable belief
 that, under the circumstances, the
 task poses an imminent risk of death
 or serious bodily harm to that
 individual, coupled with a reasonable
 belief that there is insufficient time
 to seek effective redress through the
 normal hazard reporting and abatement
 procedures established in accordance
 with the requirements herein;.
6e. Have access to DOE worker            .20(b)(2) (i)-(ii) Worker
 protection publications, DOE-            rights.
 prescribed standards, and the
 organization's own protection
 standards or procedures applicable to
 the workplace;.
6.f. Observe monitoring or measuring of  .20(b)(4) Worker rights.
 hazardous agents and have access to
 the results of exposure monitoring;.
6.g. Be notified when monitoring         .20(b)(3) Worker rights
 results indicate they were overexposed
 to hazardous materials; and.
6.h. Receive results of inspections and  .20(b)(6) Worker rights
 accident investigations upon request.
7. Implement procedures to allow         .20(a)(9) Management
 workers, through their supervisors, to   responsibilities.
 stop work when they discover employee
 exposures to imminent danger
 conditions or other serious hazards.
 The procedure shall ensure that any
 stop work authority is exercised in a
 justifiable and responsible manner.
8. Inform workers of their rights and    .20(a)(10) Management
 responsibilities by appropriate means,   responsibilities.
 including posting the appropriate DOE
 Worker Protection Poster in the
 workplace where it is accessible to
 all workers.
9. Identify existing and potential       .21(a) Hazard identification
 workplace hazards and evaluate the       and assessment.
 risk of associated worker injury and
 illness.
9.a. Analyze or review: (1) Designs for  .21(a)(4)-(5) Hazard
 new facilities and modifications to      identification and assessment.
 existing facilities and equipment; (2)
 Operations and procedures; and (3)
 Equipment, product and service needs.
9.b. Assess worker exposure to           .21(a)(1)-(3) Hazard
 chemical, physical, biological, or       identification and assessment
 ergonomic hazards through appropriate    [Moved to guidance document.]
 workplace monitoring (including
 personal, area, wipe, and bulk
 sampling); biological monitoring; and
 observation. Monitoring results shall
 be recorded [Documentation shall
 describe the tasks and locations where
 monitoring occurred, identify workers
 monitored or represented by the
 monitoring, and identify the sampling
 methods and durations, control
 measures in place during monitoring
 (including the use of personal
 protective equipment), and any other
 factors that may have affected
 sampling results.].
9.c. Evaluate workplaces and activities  .21(a)(5) Hazard identification
 (accomplished routinely by workers,      and assessment.
 supervisors, and managers and
 periodically by qualified worker
 protection professionals).
9.d. Report and investigate accidents,   .26(d) Recordkeeping and
 injuries and illnesses and analyze       reporting.
 related data for trends and lessons
 learned (reference DOE Order 210.1).
10. Implement a hazard control           .22(a) Hazard prevention and
 prevention/abatement process to ensure   abatement.
 that all identified hazards are
 managed through final abatement or
 control.
10.a. For hazards identified either in   .22(a)(1) Hazard prevention and
 the facility design or during the        abatement.
 development of procedures, control
 shall be incorporated in the
 appropriate facility design or
 procedure.
10.b. For existing hazards identified    .22(a)(2) (i), (ii), & (iii)
 in the workplace, abatement actions      Hazard prevention and
 prioritized according to risk to the     abatement.
 worker shall be promptly implemented,
 interim protective measures shall be
 implemented pending final abatement,
 and workers shall be protected
 immediately from imminent danger
 conditions.
10.c. Hazards shall be addressed when    .22(c) Hazard prevention and
 selecting or purchasing equipment,       abatement.
 products, and services.
10.d. Hazard control methods shall be    .22(b)(2)-(4) Hazard prevention
 selected based on the following          and abatement.
 hierarchy: (1) Engineering control (2)
 Work practices and administrative
 controls that limit worker exposure
 (3) Personal protective equipment.
11. Provide workers, supervisors,        .25 Information and training.
 managers, visitors, and worker
 protection professionals with worker
 protection training.
12. Comply with the following worker     .23(a) Safety and health
 protection requirements:.                standards.
12.a. Title 29 Code of Federal           .23(a)(3) Safety and health
 Regulations (CFR), Part 1910,            standards.
 ``Occupational Safety and Health
 Standards''.
12.b. Title 29 CFR, Part 1915,           .23(a)(4) Safety and health
 ``Shipyard Employment''.                 standards.
12.c. Title 29 CFR, Part 1917, ``Marine  .23(a)(5) Safety and health
 Terminals''.                             standards.
12.d. Title 29 CFR, Part 1918, ``Safety  .23(a)(6) Safety and health
 and Health Regulations for               standards.
 Longshoring''.

[[Page 6863]]

 
12.e. Title 29 CFR, Part 1926, ``Safety  .23(a)(7) Safety and health
 and Health Regulations for               standards.
 Construction''.
12.f. Title 29 CFR, Part 1928,           .23(a)(8) Safety and health
 ``Occupational Safety and Health         standards.
 Standards for Agriculture''.
12.g. American Conference of             .23(a)(9) Safety and health
 Governmental Industrial Hygienists       standards.
 (ACGIH), ``Threshold Limit Values for
 Chemical Substances and Physical
 Agents and Biological Exposure
 Indices'' when the ACGIH Threshold
 Limit Values (TLVs) are lower (more
 protective) than permissible exposure
 limits in 29 CFR 1910. When the ACGIH
 TLVs are used as exposure limits,
 contractors must nonetheless comply
 with the other provisions of any
 applicable expanded health standard
 found in 29 CFR 1910.
12.h. American National Standards        .23(a)(11) Safety and health
 Institute (ANSI) Z136.1, ``Safe Use of   standards.
 Lasers''.
12.i. ANSI Z88.2, ``American National    .23(a)(10) Safety and health
 Standard Practices for Respiratory       standards.
 Protection''.
12.j. ANSI Z49.1, ``Safety in Welding,   .23(a)(12) Safety and health
 Cutting and Allied Processes,''          standards.
 sections 4.3 and E4.3 (of the 1994
 edition or equivalent sections of
 subsequent editions).
12.k. National Fire Protection           .23(a)(14) Safety and health
 Association (NFPA) 70, ``National        standards.
 Electrical Codes''.
12.l. NFPA 70E, ``Electrical Safety in   .23(a)(15) Safety and health
 the Workplace''.                         standards.
13. Ensure that subcontractors
 performing work on DOE-owned or -
 leased facilities comply with this
 Contractor Requirements Document and
 the contractor's own site worker
 protection standards (where
 applicable).
14. Construction Safety................  Appendix A section 1.
15. Fire Protection....................  Appendix A section 2.
16. Firearms Safety....................  Appendix A section 5.
17. Explosives Safety..................  Appendix A section 3.
18. Industrial Hygiene.................  Appendix A section 6.
19. Occupational Medicine..............  Appendix A section 8.
20. Pressure Safety....................  Appendix A section 4.
21. Motor Vehicle Safety...............  Appendix A section 9.
22. Suspect and Counterfeit Item (S/CI)  Section moved to DOE Order
 Controls.                                414.1C, Quality Assurance
                                          (June 17, 2005).
------------------------------------------------------------------------

    Many provisions have been reformatted and renumbered in this final 
rule, creating differences between it and the published supplemental 
notice of proposed rulemaking. To aid in tracking the provisions of 
both documents, the Department has included a table comparing sections 
in the final rule to the corresponding sections in the supplemental 
notice of proposed rulemaking. See Table 2.

     Table 2.--Comparison of Final 10 CFR 851 Rule Sections With the
           Supplemental Notice of Proposed Rulemaking (SNOPR)
------------------------------------------------------------------------
                                            Corresponding supplemental
           Final rule section                    proposal section
------------------------------------------------------------------------
         PART 850--Chronic Beryllium Disease Prevention Program
------------------------------------------------------------------------
Authority..............................  Notice of Proposed Rulemaking
                                          December 8, 2003, N/A.
850.1 Scope............................  Notice of Proposed Rulemaking
                                          December 8, 2003, N/A.
850.4 Enforcement......................  Notice of Proposed Rulemaking
                                          December 8, 2003, N/A.
----------------------------------------
               PART 851--Worker Safety and Health Program
------------------------------------------------------------------------
     Subpart A--General Provisions        Subpart A--General Provisions
----------------------------------------
 
851.1 Scope and purpose................  851.1 Scope and exclusions.
                                         851.2 Purpose.
851.2 Exclusions.......................  851.1 Scope and exclusions.
851.3 Definitions......................  851.3 Definitions.
851.4 Compliance Order.................  851.5 Compliance Order.
851.5 Enforcement......................  851.9 Enforcement.
851.6 Petitions for generally            851.6 Interpretations.
 applicable rulemaking.
851.7 Requests for a binding             851.6 Interpretations.
 interpretive ruling.
851.8 Informal requests for information  851.6 Interpretations.
----------------------------------------

[[Page 6864]]

 
    Subpart B--Program Requirements       Subpart A--General Provisions
                                           Subpart B--Worker Safety and
                                                  Health Program
----------------------------------------
 
851.10 General requirements............  851.4 General rule.
                                         851.100 Worker safety and
                                          health program.
851.11 Development and approval of the   851.101 Approval and
 worker safety and health program.        maintenance of the worker
                                          safety and health program.
851.12 Implementation..................  851.100 Worker safety and
                                          health program.
851.13 Compliance......................  851.8 Compliance.
----------------------------------------
      Subpart C--Specific Program         Subpart A--General Provisions
              Requirements
                                           Subpart B--Worker Safety and
                                                  Health Program
                                           Subpart C--Safety and Health
                                                   Requirements
----------------------------------------
 
851.20 Management responsibilities and   851.10 Worker rights.
 worker rights and responsibilities.
851.21 Hazard identification and         851.100 Worker safety and
 assessment.                              health program.
851.22 Hazard prevention and abatement.  851.100 Worker safety and
                                          health program.
851.23 Workplace safety and health       851.200 Worker safety and
 standards.                               health requirements.
                                         851.201 Worker safety and
                                          health standards.
851.24 Functional areas................  851.200 Worker safety and
                                          health requirements.
851.25 Training and information........  851.100 Worker safety and
                                          health program.
851.26 Recordkeeping and reporting.....  851.7 Information and records.
851.27 Incorporation by reference......
----------------------------------------
          Subpart D--Variances             Subpart D--Exemption Relief
----------------------------------------
 
851.30 Consideration of variances......  851.300 Exemptions.
851.31 Variance process................  851.301 Exemption criteria.
851.32 Action on variance request......  851.300 Exemptions.
851.33 Terms and conditions............  851.302 Terms and conditions.
851.34 Requests for conferences........
----------------------------------------
     Subpart E--Enforcement Process       Subpart E--Enforcement Process
----------------------------------------
 
851.40 Investigations and inspections..  851.400 Investigations and
                                          inspections.
851.41 Settlement......................
851.42 Preliminary notice of violation.  851.402 Preliminary notice of
                                          violation.
851.43 Final notice of violation.......  851.403 Final notice of
                                          violation.
851.44 Administrative appeal...........  851.404 Administrative appeal.
851.45 Direction to NNSA contractors...  851.405 Direction to NNSA
                                          contractors.
----------------------------------------
APPENDIX A TO PART 851--WORKER SAFETY      Subpart C--Safety and Health
 AND HEALTH FUNCTIONAL AREAS.                      Requirements
                                         (Sections 851.202 to 851.210)
----------------------------------------
 
A.1 Construction safety................  851.202 Construction safety.
A.2 Fire protection....................  851.203 Fire protection.
A.3 Explosives safety..................  851.204 Explosives safety.
A.4 Pressure safety....................  851.205 Pressure retaining
                                          component safety.
A.5 Firearms safety....................  851.208 Firearms safety.
A.6 Industrial hygiene.................  851.209 Industrial hygiene.
A.7 Biological safety..................  851.207 Biological safety.
A.8 Occupational medicine..............  851.210 Occupational medicine.
A.9 Motor vehicle safety...............  851.206 Motor vehicle safety.
A.10 Electrical safety.................
A.11 Nanotechnology--Reserved..........
A.12 Workplace Violence Prevention--
 Reserved.
----------------------------------------
    APPENDIX B TO PART 851--GENERAL      APPENDIX A TO PART 851--GENERAL
    STATEMENT OF ENFORCEMENT POLICY          STATEMENT OF ENFORCEMENT
                                                      POLICY
------------------------------------------------------------------------

IV. Section-by-Section Discussion of Comments and Rule Provisions

    This section of the Supplementary Information responds to 
significant comments on specific proposed rule provisions. It contains 
explanatory material for some final rule provisions in order to provide 
interpretive guidance to DOE contractors that must comply with this 
rule. All substantive changes from the supplemental notice of proposed 
rulemaking are explained in this section. However, some non-substantive 
changes, such as renumbering of paragraphs and minor changes clarifying 
the meanings of rule provisions are not discussed.

[[Page 6865]]

    DOE has determined that the requirements set forth in this rule are 
those which are necessary to provide a safe and healthful workplace for 
DOE contractors and their workers.
    The majority of the comments received during the public comment 
period addressed specific provisions or subparts (e.g., scope and 
exclusions, enforcement process, program requirements, exemption 
process, and consensus standards) of the supplemental proposed rule. 
Each of these comments is discussed in detail below in the discussion 
of the corresponding section of the rule.
    Several commenters, however, expressed more general concerns 
regarding the entire proposed rule. For instance, a few commenters 
(Exs. 20, 27, 48) expressed concern regarding a perceived lack of 
detail in the proposed rule. One of these commenter (Ex. 20) felt that 
terms such as ``reasonable,'' ``any,'' ``all,'' ``significant,'' 
``adequate,'' ``near miss,'' ``potential,'' ``comprehensive,'' and 
``general'' used throughout the rule were too subjective to ensure 
consistency in contractor programs and enforcement. Another commenter 
(Exs. 48) believed that the proposed rule was not sufficiently 
developed and many processes and required guidance materials have 
either not yet been developed or have not been adequately described. 
This commenter also felt that the proposed regulation as currently 
written would represent a shift in safety emphasis from the positive 
influence, as described by the Integrated Safety Management System 
(ISMS), to a negative, enforcement-based culture. The commenter 
recommended that DOE consult with safety and health professionals 
within DOE, in other government agencies such as OSHA, and in private 
industry when preparing the final rule. The third commenter (Ex. 27) 
argued that the ``level of protection'' required under section 3173 of 
the NDAA must be defined in the rule to allow contractor compliance.
    DOE has carefully reviewed the rule in light of these comments and 
other more specific comments received during the public comment period 
and has attempted to address those requesting clarification or further 
detail through either revisions to the text of the final rule or 
through clarification in this preamble discussion. DOE also intends to 
publish appropriate guidance materials to further assist contractors 
with implementation. DOE notes that this final rule is the result of 
extensive coordination within the DOE safety and health community and 
the careful consideration of all comments received during the pubic 
comment period including those comments received from health and safety 
professionals from other organizations.
    Two commenters (Ex. 44, 60) urged DOE to begin the process of 
staffing, training, and setting forth resource requirements in order to 
implement this rule in a timely manner. DOE notes, however, that the 
rule is based largely on the provisions of DOE Order 440.1A. As a 
result, existing staff within DOE will be capable of performing 
Departmental actions necessary to implement the rule.
    One commenter (Ex. 37) asserted that the health and safety 
framework established under the rule is unlike the health and safety 
provisions applicable to all other facilities in the country that are 
subject to OSHA jurisdiction. This commenter felt that such a 
discrepancy would discourage talented health and safety professionals 
from working at DOE facilities because of the prospect of learning a 
regulatory scheme that does not apply elsewhere. The commenter argued 
that ``the best and the brightest'' health and safety professionals 
would be hoping to acquire transferable skills. DOE disagrees with this 
commenter. The provisions of the final rule stem directly from DOE 
Order 440.1A which was modeled after OSHA's Safety and Health Program 
Management Guidelines. OSHA derived these guidelines from the safety 
and health program of private industry firms with the best safety and 
health performance records. OSHA encourages all employers to implement 
these guidelines and recognizes the accomplishments of the best 
performers in safety and health through its Voluntary Protection 
Program (VPP). As a result, DOE believes that the safety and health 
program required under this rule will continue to promote safety and 
health excellence among DOE contractors and will in fact attract ``well 
qualified'' safety and health professionals.
    One commenter (Ex. 6) expressed concern that the proposed rule did 
not respond to past Inspector General (IG) and Government 
Accountability Office (GAO) reports recommending that DOE National 
Laboratories transition to external OSHA regulation. The commenter 
recommended that DOE compare the proposed rule with previous external 
IG and GAO reports regarding regulation of DOE National Laboratories. 
This same commenter also asserted that there is a need for a 
centralized enforcement (compliance) agency, and suggested that DOE 
follow the Great Britain model and combine the Environmental Protection 
Agency (EPA), OSHA, DOE, Nuclear Regulatory Commission (NRC), Defense 
Nuclear Facilities Safety Board (DNFSB), Price-Anderson Amendment Act 
(PAAA), DOE's Office of Independent Oversight and Performance 
Assurance, etc., compliance groups to form an ``Agency of Oversight and 
Compliance'' to provide coordinated, synergistic, and comprehensive 
oversight. Both suggestions, however, go beyond the statutory mandate 
of section 3173 of the NDAA and the scope of this rulemaking effort. 
Moreover, the Department lacks the authority and jurisdiction to 
implement these suggestions.

A. Subpart A--General Provisions

Section 851.1--Scope and Purpose
    The worker safety and health program required by this rule 
establishes the framework for a comprehensive program that will reduce 
or prevent injuries, illnesses, and accidental losses by providing DOE 
contractors and their workers with a safe and healthful workplace. DOE 
has structured the rule this way for two main reasons: (1) To take 
advantage of existing and effective comprehensive worker protection 
programs that have been implemented at DOE facilities and (2) to 
minimize the burden on contractors by clarifying that they need not 
establish redundant worker protection programs to protect workers from 
occupational safety and health hazards.
    Section 851.1(a) establishes the scope of this regulation. The 
worker safety and health requirements in this part govern the conduct 
of activities by DOE contractors at DOE sites. As clarified in the 
definition of ``contractor'' (section 851.3), DOE's intent is that the 
contractors covered under this rule include any entity under contract 
to perform activities at a DOE site in furtherance of a DOE mission, 
including subcontractors at any tier.
    One commenter (Ex. 6) suggested the rule should apply only to 
defense nuclear facilities. DOE notes that the legislation, section 
3173 of the NDAA is not limited to defense nuclear facilities.
    A few commenters (Exs. 28, 45, 51) observed that section 3173 of 
the NDAA only applies to contractors covered by agreements of 
indemnification under section 170d. of the AEA. The commenters 
suggested that part 851 should not exceed this statutory mandate and 
should only apply to such contractors. Presumably since ``contractual 
enforcement under proposed rule section 851.4(b) would only be 
available against prime contractors and not subcontractors,'' these 
commenters argued that, ``the rule

[[Page 6866]]

should only apply to contractors covered by agreement of 
indemnification,'' amending the Nuclear Hazards Indemnity Agreement 
(NHIA) in order to put contractors on notice of civil and contract 
penalties for violation of DOE worker safety and health rules. Although 
DOE recognizes that section 234C of the AEA only mandates contractors 
covered by agreements of indemnification, DOE has decided to cover all 
of its contractors to ensure consistency in the protection of workers 
throughout the DOE complex. As described in Section II of this 
Supplementary Information, DOE has broad authority to regulate worker 
safety and health with respect to nuclear and nonnuclear functions, and 
it is not limited to the authority in section 234C. While the 
regulations cover all contractors, the authority to impose civil 
penalties is limited to those covered by agreements of indemnity.
    Several commenters (Exs. 39, 49, 61) questioned who would be held 
responsible for worker safety and health on DOE-leased sites in those 
areas outside the control of the contractor but where the contractor 
may perform work. One commenter (Ex. 49) suggested that under the rule, 
facility worker safety and health requirements should not apply to 
leased facilities to the extent they are regulated under State or local 
regulations. However, the commenter argued, the rule's program 
requirements should continue to apply to DOE contractors at these 
leased facilities. DOE intends for all contractors on a work site to 
establish and maintain a worker safety and health program for the 
workplaces for which each contractor is responsible as required in 
final rule section 851.11(a)(2)(ii). In addition, contractors on a site 
must coordinate with other contractors responsible for work at the 
covered workplaces to ensure that there are clear roles, 
responsibilities and procedures that will ensure the safety and health 
of workers on multi-contractor workplaces. DOE further intends to 
develop Enforcement Guidance Supplements based in part on OSHA's multi-
employer worksite policies to guide enforcement efforts on multi-
employer worksites. DOE notes that final rule section 851.1(a) 
clarifies that the rule applies to the conduct of contractor activities 
at DOE sites, and section 851.3 clarifies that DOE sites include not 
only locations leased or owned by DOE, but also locations controlled by 
DOE through the exercise of its regulatory authority.
    Two commenters (Exs. 15, 37) expressed concern over application of 
the rule to subcontractors and favored deleting ``subcontractors'' from 
the applicability or reducing the impact of the rule on subcontractors. 
Subcontractors must implement the requirements of the rule for covered 
workplaces for which they are responsible and, in other situations, act 
consistently with applicable regulations and worker safety and health 
standards.
    One commenter (Ex. 39) suggested that the rule could be interpreted 
as applying to employees of DOE tenant organizations performing work on 
a DOE site. The commenter observed that contractors cannot impose or 
enforce the worker safety and health requirements of this rule on 
tenants if they do not maintain a contractual relationship with them. 
DOE does not intend the rule to cover persons who are not performing 
work in furtherance of a DOE mission. To clarify this intent, DOE has 
revised the definitions of ``covered workplace'' and ``contractor'' to 
limit their scope to situations in which work is being performed in 
furtherance of a DOE mission. Thus the rule does not apply to a person 
restocking a vending machine. Likewise, the rule does not apply to DOE 
tenant organizations, except to the extent it had a contractual 
obligation to perform work in furtherance of a DOE mission.
    One commenter (Ex. 39) sought clarification of whether ``work done 
on public or private property off the reservation by a DOE Prime 
Contractor'' is covered under the rule. The rule applies to work 
performed at a DOE site. DOE has clarified in the definition of ``DOE 
site'' to include a location that DOE controls through exercise of its 
AEA authority, even if DOE does not own or lease the location. If DOE 
does not exercise control under the AEA, section 4(b)(2) exemption of 
the OSHA Act would not apply and OSHA would be responsible for 
regulating safety and health. DOE has also clarified the scope section 
to make clear that off-site transportation is not covered by the rule.
    One commenter (Ex. 29) sought clarification of whether the rule 
would apply to Federal employees at a covered worksite. DOE notes that 
the rule will not apply to Federal employees since Federal employees 
are covered under OSHA standards at 29 CFR 1960 (Basic Program Elements 
for Federal Employee Occupational Safety and Health Programs and 
Related Matters) as well as Executive Order 12196 (Occupational Safety 
and Health Programs for Federal Employees). Another commenter (Ex. 20) 
suggested the rule include provisions for resolving conflicts between 
Part 851 and the Federal occupational safety and health program. DOE 
sees no cause for concern, however, since both programs stem from DOE 
Order 440.1A, and there has been no need for such conflict resolution 
provisions under that order. DOE believes both programs are consistent 
with and complementary to each other.
    One commenter (Ex. 29) raised the question of whether DOE would 
consider ``exempting'' management and operating contractors from civil 
penalties for violations committed by other site contractors. DOE notes 
that the rule requires identification, evaluation and abatement of 
identified hazards, so that contractors are aware of the hazards in the 
covered workplace and respond appropriately. In addition, future 
enforcement guidance supplements will provide voluntary reporting 
thresholds. If the Office of Price-Anderson Enforcement becomes 
involved with a specific noncompliance, they will evaluate the 
circumstances surrounding the noncompliance, determine responsibility, 
and take appropriate enforcement actions in accordance with provisions 
of this rule. The process of discovery and evaluation of evidence has 
been used in the enforcement of nuclear safety requirements and is 
conducted in accordance with the rule of law. As a result, there is no 
need for exemptions from penalties as requested by the commenter.
    One commenter (Ex. 40) recommended broadening the applicability of 
the rule to include construction workers employed by subcontractors 
that come onto DOE sites for limited periods of time to perform 
maintenance, renovation, repair and demolition tasks. DOE notes that 
Appendix A section 1, ``Construction Safety'' covers construction 
contractors (including subcontractors) and their employees in 
situations suggested by exhibit 40.
    Section 851.1(b) establishes the purpose of the rule, which is to 
delineate the requirements and procedures associated with the worker 
safety and health program. Section 851.1(b)(1) clarifies that the rule 
establishes the requirements for an effective worker safety and health 
program, which will reduce or prevent injuries, illnesses, and 
accidental losses by providing workers with a safe and healthful 
workplace.
    Two commenters (Exs. 36, 42) contended that the purpose of the 
proposed rule--is to provide ``reasonable assurance'' that workers are 
``adequately protected'' from identified hazards--is distinctly 
different from supplemental proposed rule section 851.4(a) which 
requires a contractor to

[[Page 6867]]

``ensure'' that the workplace is ``free from'' recognized hazards. The 
commenters expressed concern that the phrase ``free from recognized 
hazards'' differed from ``adequate protection,'' and favored use of the 
term ``reasonable assurance'' as an appropriate and achievable 
standard. DOE notes, the reference to ``adequately protected'' is to 
emphasize that the rule is intended to fulfill DOE's responsibilities 
under the AEA. The reference to ``reasonable assurance'' is to identify 
the standard to be achieved. In revising the rule, DOE has moved these 
references from the section on purpose to the section on the general 
rule and specifically to the subsection on the worker safety and health 
program.
    One commenter (Ex. 16) noted that the phrase ``a contractor 
responsible for a covered workplace,'' which occurs in several proposed 
rule sections, could result in confusion on sites where DOE uses 
multiple contractors. The commenter recommended replacing the phrase 
with the following language, ``a contractor responsible for activities 
in a covered workplace.'' DOE acknowledges the commenter's concern. The 
purpose section is revised in the final rule and no longer makes 
reference to ``a contractor responsible for a covered workplace.'' DOE 
also notes that applicability of the rule is defined under section 
851.1(a), which clarifies that the final rule applies to the conduct of 
contractor activities at DOE sites.
    Two other commenters (Exs. 39, 49) also expressed concern about the 
reference in supplemental proposed rule section 851.2(a) to a ``covered 
workplace.'' The commenters noted that the term was not defined, 
leaving readers to assume that it refers to DOE facilities not excluded 
from the scope of the rule. One of the commenters (Ex. 49) suggested 
replacing the term ``covered workplace'' with ``DOE site'' since the 
supplemental proposed rule did not include a definition for ``covered 
workplace.'' DOE has responded to these comments by including a 
definition of the term ``covered workplace'' in final rule section 
851.3.
    One commenter (Ex. 27) pointed out that while supplemental proposed 
rule section 851.2(a) made no distinction in the severity of hazards 
covered by the rule, supplemental proposed rule section 851.4 included 
references to both ``hazards causing or likely to cause serious bodily 
harm'' and ``adequate protection from hazards identified in the 
workplace.'' As noted previously, the rule is intended to fulfill DOE's 
responsibility under the AEA to ensure adequate protection from all 
workplace hazards. The rule also is intended to achieve the objectives 
in the OSHA Act and DOE Order 440.1 to have workplaces free from 
hazards causing or likely to cause serious bodily harm or death. DOE 
views these objectives as complementary and has rewritten the general 
rule to clearly identify both objectives.
    Section 851.1(b)(2) clarifies that the rule establishes appropriate 
provisions for investigating the nature and extent of a violation of 
the requirements, for determining whether a violation of a requirement 
has occurred, and for imposing an appropriate remedy. DOE received no 
comments on the corresponding provision of the supplemental proposed 
rule during the public comment period.
Section 851.2--Exclusions
    As in the supplemental proposal, section 851.2 continues to 
emphasize that these regulations apply to activities performed by DOE 
contractors at DOE sites. Two commenters (Exs.13, 39) sought 
clarification that transportation was not covered under this rule. As 
discussed previously, ``scope'' section (851.1) of the final rule has 
been modified to make it clear that transportation to or from a DOE 
site is not covered by the rule.
    Section 4(b)(1) of the Occupational Safety and Health (OSH) Act (29 
U.S.C. 651 et seq.) provides that OSHA regulations do not apply where 
another federal agency exercises its statutory authority to prescribe 
safety and health standards and requirements. DOE currently exercises 
its statutory authority broadly throughout the DOE complex to provide 
safe and healthful workplaces. In a few cases, however, DOE has elected 
not to exercise its authority and to defer to regulation by OSHA under 
the OSH Act. Final rule section 851.2(a)(1) continues the status quo by 
excluding from coverage those facilities regulated by OSHA. The OSHA-
regulated facilities are: Western Area Power Administration; 
Southwestern Power Administration; Southeastern Power Administration; 
Bonneville Power Administration; National Energy Technology Laboratory 
(NETL), Morgantown, West Virginia; National Energy Technology 
Laboratory (NETL), Pittsburgh, Pennsylvania; Strategic Petroleum 
Reserve (SPR); National Petroleum Technology Office; Albany Research 
Center; Naval Petroleum and Oil Shale Reserves in Colorado, Utah, & 
Wyoming; and Naval Petroleum Reserves in California. See 65 FR 41492 
(July 5, 2000). Work performed on such sites for DOE by DOE 
contractors, however, would be subject to the applicable contract 
provisions outlined in the specified contract.
    DOE received numerous comments on the exclusion clause for work 
conducted at OSHA-regulated DOE sites. Several commenters (Exs. 15, 16, 
25, 29, 42, 49) proposed that facilities transferred to OSHA 
jurisdiction in the future should also be covered under the OSHA 
exclusion of the rule. DOE acknowledges the commenters recommendation 
and has reworded this provision in the final rule to clarify that the 
rule does not apply to work at a DOE site that is regulated by OSHA 
(i.e., as soon as a site is transferred to OSHA, work on that site no 
longer falls within the scope of the rule).
    One commenter (Ex. 5) questioned the appropriateness of the OSHA 
exclusion and pointed out that the exclusion of contractors regulated 
by OSHA was ``inherently contradictory,'' and asserted that ``DOE's 
subcontractors have flowdown of PAAA liability protection when they 
need to work in a nuclear facility. Additionally DOE subcontractors are 
the responsibility of the prime contractor (per contract) but maintain 
their own OSHA 300 log because they are required to comply with OSHA 
regulations (per the industry in which they work, not because they are 
working at a DOE site).'' DOE disagrees. OSHA's jurisdiction over 
subcontractor work on a DOE site is not based on the other types of 
workplaces or the industry in which the subcontractor works. Rather, 
OSHA has jurisdiction only if DOE declines to exercise its statutory 
authority.
    Two commenters (Exs. 36, 29) sought clarification on whether 
privately-owned or--leased facilities operated by contractors under a 
DOE contract and otherwise subject to state occupational safety and 
health regulation are excluded from the rule. One commenter (Ex. 29) 
specifically requested DOE to clarify if the exclusion applied to sites 
regulated by State OSHA. DOE notes that the exclusion only applies to 
regulation by OSHA. However, DOE notes that a location not owned or 
leased by DOE can be a DOE site only if DOE exercises regulatory 
control over the location. This is consistent with DOE's current 
practice. For example, some operations of Nevada Test Site contractors 
are not conducted on the Mercury Site, which is owned by DOE. DOE 
operations of these contractors conducted off the Mercury site are 
subject to DOE nuclear safety requirements. Part 851 will be applied in 
the same manner.
    One commenter (Ex. 19) sought clarification from DOE that the DOE

[[Page 6868]]

Mixed Oxide Fuel Fabrication Facility (MFFF) would not be subject to 
the rule because, section 3134(c) of the Strom Thurmond National 
Defense Authorization Act for Fiscal Year 1999 mandates that OSHA 
regulate the MFFF. The commenter cited part of section 3134(c) which 
states that ``any activities carried out under a license required 
pursuant to section 202(5) of the Energy Reorganization Act of 1974 (42 
U.S.C. 5842) * * * shall be subject to regulation under the 
Occupational Safety and Health Act of 1970.'' The commenter requested a 
specific statement that the rule does not apply to a DOE site ``to the 
extent that facilities or activities on such site are subject to 
licensing pursuant to section 202(5) of the Energy Reorganization Act 
of 1974, as amended.'' DOE agrees that activities undertaken pursuant 
to a NRC license for the MFFF are subject to OSHA regulation to that 
extent. DOE notes that the exact scope of such activities can only be 
determined by looking at the terms of the license granted by NRC. DOE 
further notes that the treatment of the MFFF is not the general 
practice with respect to DOE facilities licensed by NRC. Since NRC does 
not regulate non-radiological worker safety and health matters, DOE 
regulates these matters at DOE facilities subject to NRC licensing and 
thus preempts regulation by OSHA.
    Section 234C of the AEA explicitly excludes activities conducted 
under the authority of the Director, Naval Nuclear Propulsion, pursuant 
to Executive Order 12344, as set forth in Public Law 106-65. 
Accordingly, section 851.2(a)(2) excludes workplaces regulated by the 
Director, Naval Nuclear Propulsion. DOE received no comments on this 
provision during the public comment period.
    Section 851.2(b) provides that radiological hazards or nuclear 
explosive operations are not covered by Part 851 to the extent that 
they are regulated by the existing requirements on nuclear safety and 
radiological protection set forth in 10 CFR Parts 20, 820, 830, and 
835. These existing rules already deal with radiological hazards and 
nuclear explosives in a comprehensive manner through methods such as 
the Quality Assurance Program Plan, the Safety Basis, the Documented 
Safety Analysis, the Radiation Protection Program Plan, and the Nuclear 
Explosive and Weapons Surety Program. This regulation is intended to 
complement the nuclear safety requirements. Personnel responsible for 
implementing worker protection and nuclear safety requirements are 
expected to coordinate and cooperate in instances where the 
requirements overlap. The two sets of requirements should be integrated 
and applied in a manner that guards against unintended results and 
provides reasonable assurance of adequate worker protection.
    Numerous commenters (Exs. 48, 13, 16, 29, 31, 36, 39, 47, 49) 
pointed out that the exclusion of radiological hazards contained in 
this provision was not consistent with other sections of the 
supplemental proposed rule, which included the term ``radiological 
hazards'' in describing certain rule provisions. Inclusion of 
radiological hazards was intended to stress the need to examine hazards 
in a wholistic context rather than in isolation. To avoid confusion, 
DOE has removed the term, but this should not be interpreted as 
negating the need to analyze hazards together so that controls do not 
produce unintended consequences. This is the essence of integrated 
safety management which is emphasized in section 851.13(b). One 
commenter (Ex. 28) observed that radiological hazards are 
``inextricably intertwined with physical, chemical, and biological 
hazards at most DOE sites''; and favored deletion of the radiological 
hazard exclusion. DOE recognizes that radiological hazards are 
intertwined with other workplace hazards; however, radiological hazards 
have historically been covered under separate programs and through 
separate requirements both within DOE and external to DOE. DOE believes 
that current rules addressing radiological safety issues--10 CFR 820, 
830, and 835--are sufficient. As a result, DOE retained the exclusion 
of radiological hazards in the final rule.
    Another commenter (Ex. 49) favored deletion of the phrase ``* * * 
to the extent regulated by 10 CFR parts 820, 830 or 835,'' from the 
radiological hazard exclusion provision. The commenter asserted that 
radiological hazards were not within the scope of the rule. DOE 
acknowledges that existing rules already deal with radiological hazards 
and nuclear explosives in a comprehensive manner. This regulation is 
intended to complement the nuclear safety requirements. As discussed 
above, DOE intends for the two sets of requirements to be integrated 
and applied in a manner that guards against unintended results and 
provides reasonable assurance of adequate worker protection. Thus, 
personnel responsible for implementing worker protection and nuclear 
safety requirements are expected to coordinate and cooperate in 
instances where the requirements overlap. For this reason, DOE retains 
the phrase ``* * * to the extent regulated by 10 CFR parts 820, 830 or 
835,'' in the final rule.
    One commenter (Ex. 19) suggested that sites regulated by the 
Nuclear Regulatory Commission (NRC) should be excluded from coverage 
under the rule, since the NRC regulates some aspects of worker safety 
and health such as fire protection and certain aspects of chemical 
safety (in addition to nuclear and radiological safety). As discussed 
previously, the NRC does not regulate non-radiological occupational 
safety and health matters. As a result, in most instances, DOE has 
exercised and intends to continue to exercise its regulatory authority 
over worker safety and health at DOE facilities licensed by NRC.
    One commenter (Ex. 20) recommended adding an exclusion related to 
nuclear explosive operations: ``This part does not apply to nuclear 
explosive operations to the extent regulated by 10 CFR 10, 820, 830, or 
835.'' DOE agrees with the commenter's proposal, and has incorporated 
the exclusion for nuclear explosive operations in final rule section 
851.2(b). In addition, DOE has included definitions for nuclear 
explosives and nuclear explosive operations in final rule section 
851.3.
Section 851.3--Definitions
    Section 851.3 of the final rule defines terms used throughout the 
rule. Commenters on this section of the supplemental proposed rule 
typically requested either addition of new terms, clarification or 
modification of proposed definitions, or deletion of selected terms 
from the rule. These comments are discussed in detail below and/or in 
the section-by-section discussion corresponding to the specific rule 
sections where each term is used.
    New terms. In response to public comment, and to assist in further 
clarification of the provisions of the rule, the following additional 
terms have been defined in section 851.3: ``Affected worker,'' 
``closure facility,'' ``closure facility hazard,'' ``construction,'' 
``construction contractor,'' ``construction manager,'' ``construction 
project,'' ``construction worksite,'' ``covered workplace,'' ``DOE 
Enforcement Officer,'' ``Head of DOE Field Element,'' ``interim 
order,'' ``nuclear explosives,'' ``nuclear explosives operation,'' 
``occupational medicine provider,'' ``permanent variance,'' ``pressure 
systems,'' ``safety and health standard,'' ``temporary variance,'' 
``unauthorized discharge,'' and `` variance.'' A discussion of each 
term is included in the alphabetical listing of definitions below.

[[Page 6869]]

    Terms and definitions deleted. In response to public comment, the 
following definitions in the supplemental notice are deleted in the 
final rule: ``Activity-level hazard analysis,'' ``hazard control,'' 
``Site Manager,'' ``workplace safety and health programmatic 
requirement,'' ``workplace safety and health requirement,'' and 
``workplace safety and health standard.'' The deletions are explained 
in the section-by-section discussion of the rule provisions in which 
the terms were previously used.
    Section 851.3 defines key terms using traditional occupational 
safety and health and Departmental terminology, as well as terminology 
used by the OSHA in its regulations and interpretations, in 
establishing and clarifying the provisions of this rule. The use of 
such terminology is consistent with DOE's increased emphasis on safety 
and health compliance through the use of accepted occupational safety 
and health requirements and procedures. The following discussion 
defines and explains each of the terms in the rule. Although some of 
these terms are commonly used, DOE believes these definitions will help 
ensure that their meaning as used in the context of the rule is clear. 
Section 851.3(a) presents definitions of terms as used in this part.
    AEA is the Atomic Energy Act of 1954. DOE did not receive any 
comments on this proposed definition during the public comment period.
    Affected worker is an employee who would be affected by the 
granting or denial of a variance, or any authorized representative of 
the employee, such as a collective bargaining agent. DOE added this 
definition to the final rule to assist in clarifying worker rights 
associated with the variance process.
    A closure facility is a facility that is non-operational and is, or 
is expected to be, permanently closed and/or demolished, or title to 
which is expected to be transferred to another entity for reuse. DOE 
added this definition to the final rule to assist in clarifying which 
facilities qualify for the flexibility provisions established in final 
rule section 851.21(b).
    A closure facility hazard is a workplace hazard within a closure 
facility covered by a requirement of final rule section 851.23 for 
which strict technical compliance would require costly and extensive 
structural/engineering modifications to be in compliance. DOE added 
this definition to the final rule to assist in clarifying the types of 
hazards that qualify for the flexibility provisions established in 
final rule section 851.21(b).
    The Cognizant Secretarial Officer (CSO) is the Assistant Secretary, 
Deputy Administrator, Program Office Director, or equivalent DOE 
official who has primary line management responsibility for a 
contractor, or any other official to whom the CSO delegates in writing 
a particular function under this part. One commenter (Ex. 32) sought 
clarification of the definition for the term Cognizant Secretarial 
Officer due to the inconsistency between the proposed rule definition 
of a CSO having ``primary line management responsibility for a 
contractor'' and how CSOs were assigned in DOE Manual 411.1-C, Safety 
Management Functions, Responsibilities, and Authorities Manual, by site 
or organization. The commenter recommended that the definition be made 
consistent with DOE Manual 411.1-C. In response, DOE modified the 
definition of CSO in the final rule to include reference to a DOE 
official with primary line management responsibility for a contractor 
and any other official to whom the CSO delegates a particular function 
under this part.
    A compliance order is 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. This provision merely 
codifies the Secretary's authority under the AEA to take immediate 
action where necessary to ensure an adequate level of safety. While the 
Secretary might use this authority where there is a persistent pattern 
of non-compliance by a contractor that warrants Secretarial 
intervention, a compliance order is not intended to be used as a 
routine enforcement device by the Office of Price-Anderson Enforcement. 
DOE received no comments specifically related to this definition during 
the public comment period. Comments on the compliance order provisions 
of the rule are addressed in detail in the section-by-section 
discussion for final rule section 851.4.
    A consent order is 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. DOE did not receive 
any comments on this proposed definition during the public comment 
period.
    Construction means any combination of erection, installation, 
assembly, demolition, or fabrication activities involved to create a 
new facility or to alter, add to, rehabilitate, dismantle, or remove an 
existing facility. It also includes the alteration and repair 
(including dredging, excavating, and painting) of buildings, 
structures, or other real property, as well as any construction, 
demolition, and excavation activities conducted as part of 
environmental restoration or remediation efforts. DOE added this 
definition to the final rule in response to public comments discussed 
in the section-by-section discussion for Appendix A section 1, 
``Construction Safety.''
    The construction contractor is the lowest tiered contractor or 
subcontractor with primary responsibility for the execution of all 
construction work described within a construction procurement or 
authorization document (e.g., construction contract, work order). DOE 
added this definition to the final rule in response to public comments 
discussed in the section-by-section discussion for Appendix A section 
1, ``Construction Safety.''
    The construction manager is the individual or firm responsible to 
DOE for the supervision and administration of a construction project to 
ensure the construction contractor's compliance with construction 
project requirements. DOE added this definition to the final rule in 
response to public comments discussed in the section-by-section 
discussion for Appendix A section 1, ``Construction Safety.''
    The construction project refers to the full scope of activities 
required on a construction worksite to fulfill the requirements of the 
construction procurement or authorization document. DOE added this 
definition to the final rule in response to public comments discussed 
in the section-by-section discussion for Appendix A section 1, 
``Construction Safety.''
    The construction worksite is the area within the limits necessary 
to perform the work described in the construction procurement or 
authorization document. It includes the facility being constructed or 
renovated along with all necessary staging and storage areas as well as 
adjacent areas subject to project hazards. DOE added this definition to 
the final rule in response to public comments discussed in the section-
by-section discussion for Appendix A section 1, ``Construction 
Safety.''
    A contractor is any entity under contract with DOE, including a 
subcontractor, with responsibility for performing work at a DOE site in 
furtherance of a DOE mission. This term does not apply to contractors 
or subcontractors that provide only ``commercial items'' as defined 
under the Federal Acquisition Regulations (FAR). Such contractors would 
not be

[[Page 6870]]

performing work in furtherance of a DOE mission.
    Several commenters (Exs. 16, 28, 31, 37, 39, 45, 48, 51) requested 
clarification of the role of affiliated entities, like parent 
corporations, in the definition of ``contractor.'' One commenter (Ex. 
39) questioned the legal justification for including parent 
organizations within the scope of these regulations. Noting that well-
established legal precedents regarding separation of parent 
corporations and their entities existed, a commenter (Ex. 16) 
recommended that DOE excise references to parent organizations or 
review each use of the term in the rule for unintended or inappropriate 
implications to ensure compliance with legal precedents.
    Another commenter (Ex. 37) requested clarification of DOE's 
expectations of affiliates under the rule. A few commenters (Exs. 28, 
45, 51) sought clarification of the circumstances under which an 
enforcement action may be brought against a parent corporation or 
affiliated entity. Some other commenters (Exs. 31, 39, 48) took issue 
with what they perceived as DOE's attempt to expand the scope of DOE 
enforcement authority to entities that are established under State laws 
as wholly independent of their affiliates (e.g., C corporations, S 
corporations and LLCs) and operate outside the liability space of DOE 
authority. Many commenters (Exs. 31, 39, 48, 49, 51) recommended 
elimination of language referring to any affiliated entity, such as 
``parent organization'' in the proposed definition. Lastly, two 
commenters (Exs. 45, 51) noted that parent companies are expressly set 
up to limit liability, so it was inappropriate to attempt to circumvent 
established corporate structures by including them in the definition. 
DOE appreciates these concerns. Nevertheless, to ensure that 
responsible parties such as an affiliate are held responsible for the 
safety and health of workers, and to maintain consistency with the 
duties and responsibilities set forth in 10 CFR Part 820, DOE has 
determined not to delete the reference to affiliated entities in the 
definition.
    Several commenters (Exs. 20, 28, 33, 42, 45, 49, 51) also sought 
clarification and modification of the proposed definition for 
contractors with respect to the inclusion of subcontractors. Some 
commenters (Exs. 28, 33, 45, 51) felt that the term contractor was 
inconsistently applied throughout the rule and variously referred to 
prime contractors, subcontractors, or suppliers, when distinctions were 
required. One commenter (Ex. 33) recommended that the definition be 
modified to limit applicable entities or that the usage of the term in 
the rule be reviewed closely to eliminate inconsistencies, or 
alternatively that separate definitions be provided for 
``subcontractor'' and ``supplier.'' DOE has modified the definition in 
the final rule to make clear it covers contractors and subcontractors 
at any tier. DOE also has made several other revisions to the 
regulatory language to eliminate potential ambiguities as to which 
contractor(s) would be subject to a particular provision in a 
particular situation.
    Another commenter (Ex. 28) proposed that ``contractor'' be defined 
as any entity under contract (or its subcontractors or suppliers) with 
DOE that has entered into an agreement of indemnification under section 
170d of the AEA. As discussed previously, DOE made the decision to 
cover all of its contractors to ensure consistency in the protection of 
workers and enforcement. As a result, the definition of contractor in 
the final rule does not limit the term to those contractors covered by 
an agreement of indemnification.
    Several other commenters (Exs. 20, 45, 49, 51) recommended limiting 
the definition of ``DOE contractor'' to any entity under contract to 
DOE whose responsibility it would be to flow-down requirements to 
subcontractors. Two of these commenters (Exs. 49, 51) favored 
eliminating references to subcontractors since they lack authority to 
conduct or direct work at DOE sites. Section 3173 of the NDAA requires 
DOE to include subcontractors within the framework of the rule. 
Accordingly, the Department does not have the discretion to exclude 
subcontractors from the rule.
    A covered workplace is a place at a DOE site where work is 
conducted by a contractor in furtherance of a DOE mission. Several 
commenters (Exs. 1, 13, 29, 32, 39, 42) requested greater clarification 
of the term ``covered workplace'' and strongly supported its inclusion 
in the list of definitions in proposed section 851.3. For instance, one 
commenter (Ex. 13) sought elucidation of which workplaces were covered 
by the regulation (e.g., whether the term included contractor owned or 
leased facilities). Another commenter (Ex. 32) recommended that the 
definition distinguish between DOE sites and non-DOE locations. The 
commenter noted that non-DOE locations could include contractor-owned 
or -leased locations, vendor locations, or other areas where DOE 
contractors performed activities (viz., research, installation of 
equipment, business, and travel). One commenter (Ex. 39) pointed out 
that in proposed rule section 851.2(a), the regulations referred to a 
``covered workplace,'' but that term was not defined in proposed rule 
section 851.3. Consequently contractors would be left to assume that 
the term referred to DOE facilities not excluded from the scope of the 
rule. Two commenters (Exs. 36, 42) observed that supplemental proposed 
rule section 851.1 would limit application of the rule to contractor 
activities at ``DOE sites'' (which is defined in supplemental proposed 
rule section 851.3), but the term ``covered workplace'' was used rather 
than ``DOE sites'' throughout the rule language. In response to these 
concerns, DOE added a definition for ``covered workplace'' in final 
rule section 851.3. The use of ``covered workplace'' is intended to 
make clear that the focus of the rule is the specific areas where work 
is performed. In addition, as discussed previously, the definition of 
``DOE site'' has been revised to provide further clarity on the scope 
of the rule.
    One commenter (Ex. 48) also requested clarification of the term 
``covered workplace'' with respect to the term ``worker.'' In reference 
to the use of ``worker,'' the commenter questioned whether a contractor 
would be held responsible for ensuring that all the work of vendors, 
suppliers, and fabricators not located at the contractor's work 
location, but who were providing goods, services, and materials for DOE 
work, was in compliance with the rule. As discussed elsewhere, DOE has 
clarified what constitutes a ``DOE site'' and has defined ``worker'' to 
be a contractor employee performing work in a covered workplace at a 
DOE site in furtherance of a DOE mission.
    A Director is 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. This function has been assigned to the 
current Director of the Office of Price-Anderson Enforcement in the 
Office of Environment, Safety and Health, who is the person to whom the 
Secretary has assigned the responsibility for enforcing the DOE nuclear 
safety regulations in 10 CFR parts 20, 820, 830, and 835. DOE did not 
receive comments on this definition during the public comment period.
    DOE is the United States Department of Energy, including the 
National Nuclear Security Administration. One commenter (Ex. 39) sought 
a clarification of which entities were included under the DOE acronym. 
The commenter questioned if the term referred to the local site or 
field office or the DOE Office of Price-Anderson Enforcement. In 
response, DOE notes

[[Page 6871]]

that DOE is defined in final rule section 851.3 and includes any DOE 
headquarters, field, area, or site office. Where a specific office has 
a specific role or responsibility with respect to this rule, the 
specific office is referenced under the corresponding provision of the 
rule.
    A DOE Enforcement Officer is a DOE Official to whom the Director 
has assigned the authority to investigate the nature and extent of 
compliance with the requirements of this part. DOE added this 
definition to assist in clarifying enforcement authorities under the 
final rule.
    DOE site means DOE-owned or -leased area or location or other 
location controlled by DOE where activities and operations are 
performed at one or more facilities or locations by a contractor in 
furtherance of a DOE mission. This definition was revised to include 
all sites where DOE exercises regulatory control under the AEA, even if 
DOE does not own or lease the site.
    One commenter (Ex. 5) suggested a modification of the definition of 
``DOE site'' to include the idea that some DOE sites have multiple 
contractors working on them. DOE disagrees that a modification to this 
definition is needed to clarify this point. The current definition does 
not limit the meaning of the term to areas where only one contractor 
works.
    Two commenters (Exs. 19, 48) questioned ownership and geographical 
issues with respect to a DOE site. One commenter (Ex. 48) suggested 
that DOE site should be defined as being strictly DOE-owned or directly 
DOE-leased areas/locations. The other commenter (Ex. 19) had contractor 
specific concerns about the definition's applicability, requesting 
clarification that the rule only intended to cover sites owned or 
leased by DOE as opposed to DOE sites not owned or leased where 
contract work is performed. DOE considered these comments in revising 
the definition of ``DOE site.''
    A final notice of violation is a document that determines a 
contractor has violated or is continuing to violate a requirement of 
this part. Such document 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.
    A final order is a DOE order that represents final agency action 
and, if appropriate, imposes a remedy with which the recipient of the 
order must comply.
    General Counsel refers to the General Counsel of DOE.
    A Head of DOE Field Element is the highest-level DOE official in a 
DOE field or operations office who has the responsibility for 
identifying the contractors and subcontractors covered by this part and 
for ensuring compliance with this part. DOE added this definition to 
assist in clarifying program review and approval authorities under the 
final rule by identifying the DOE official responsible for these 
actions under the rule.
    An interpretation refers to a statement by the General Counsel 
concerning the meaning or effect of a requirement of this part that 
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. DOE received several comments regarding the 
interpretation provision of the rule. These comments are addressed in 
detail in the section-by-section discussion for final rule section 
851.6.
    NNSA is the National Nuclear Security Administration.
    A nuclear explosive is an assembly containing fissionable and/or 
fusionable materials and main charge high-explosive parts or 
propellants capable of producing a nuclear detonation (e.g., a nuclear 
weapon or test device). DOE added this definition (see, e.g., 10 CFR 
section 712.3) to further clarify the exclusion provisions of section 
851.2 of the final rule.
    A nuclear explosive operation is any activity involving a nuclear 
explosive, including activities in which main charge high-explosive 
parts and pit are collocated. DOE added this definition to further 
clarify the exclusion provisions of section 851.2 of the final rule.
    An occupational medicine provider is the designated site 
occupational medicine director (SOMD) or the individual providing 
medical services.
    A permanent variance is relief from a safety and health standard, 
or portion thereof, to contractors who can prove that their methods, 
conditions, practices, operations, processes provide workplaces that 
are as safe and healthful as would result from compliance with the 
workplace safety and health standard required by this part. DOE added 
this definition to further clarify the variance process established in 
Subpart D of the final rule.
    A preliminary notice of violation (PNOV) is a document that sets 
forth the preliminary conclusions that a contractor has violated or is 
continuing to violate a requirement of this part. Such a document 
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.
    Pressure systems are all pressure vessels, and pressure sources 
including cryogenics, pneumatic, hydraulic, and vacuum. Vacuum systems 
should be considered pressure systems due to their potential for 
catastrophic failure due to backfill pressurization. Associated 
hardware (e.g., gauges, and regulators), fittings, piping, pumps, and 
pressure relief devices are also integral parts of the pressure system. 
DOE added this definition to clarify the scope of the pressure safety 
provisions of Appendix A section 4 of the final rule.
    A remedy is any action (included, 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 rescission 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. One commenter (Ex. 28) proposed a 
modification of the definition for the term ``remedy'' and suggested 
the definition should read as: ``any action (included, but not limited 
to, the assessment of civil penalties, the requirement of specific 
actions, request to the DOE contracting officer for a reduction of fees 
or other payments under a contract, or the modification, suspension or 
rescission of a contract.'' The commenter pointed out that the DOE 
contracting officer was the entity that had the authority to implement 
contract actions. While DOE agrees that contracting officers have the 
authority to take contract actions, the Director has been delegated the 
authority to enforce Part 851. In that role, the Director coordinates 
with the contracting officer in effecting the appropriate contract 
action. DOE has determined that the definition being adopted for 
``remedy'' is appropriate because it provides the Department the 
flexibility to determine the most appropriate remedy to a violation of 
a relevant safety and health provision.
    A safety and health standard is a standard that addresses a 
workplace hazard by establishing limits, requiring conditions, or 
prescribing the adoption or use of one or more practices, means,

[[Page 6872]]

methods, operations, or processes, reasonably necessary or appropriate 
to provide safe and healthful workplaces. Two commenters (Exs. 15, 29) 
sought clarification of and favored elimination of the term ``workplace 
health and safety programmatic standards'' from the proposed rule since 
it appeared to be redundant with the terms ``workplace health and 
safety standards'' and ``workplace health and safety requirements.'' As 
requested, DOE has eliminated the term ``workplace health and safety 
programmatic standards'' and also, the term ``workplace health and 
safety requirements'' from the final rule.
    One commenter (Ex. 11) questioned why DOE issued a separate 
definition for the term ``safety and health standard,'' which is 
commonly used in the safety and health community. The commenter cited 
the definition of an occupational safety and health standard in section 
3(8) of the OSH Act 29 U.S.C. 652(8) in support of the argument and 
sought clarification on DOE's omission of language similar to OSHA's 
with respect to standards being ``necessary or appropriate to provide 
safe or healthful employment and places of employment.'' DOE agrees, in 
general, with this comment. However, DOE has revised the definition of 
``safety and health standard,'' in the final rule to make clear that, 
for purposes of this rule, it includes all the standards or 
requirements included or referenced in subpart C.
    Secretary means the Secretary of Energy.
    A temporary variance is a short-term relief from a new safety and 
health standard when the contractor cannot comply with the requirements 
by the prescribed date because the necessary construction or alteration 
of the facility cannot be completed in time or when technical 
personnel, materials, or equipment are temporarily unavailable. DOE 
added this definition to further clarify the variance process 
established in Subpart D of the final rule.
    An unauthorized discharge is the discharge of a firearm under 
circumstances other than: (1) During firearms training with the firearm 
properly pointed down range (or toward a target), or (2) the 
intentional firing at hostile parties when deadly force is authorized. 
DOE added this definition to further clarify provision of Appendix A 
section 5, ``Firearms Safety,'' in the final rule.
    A variance is an exception to compliance with some part of a safety 
and health standard granted by the Under Secretary. DOE added this 
definition to further clarify the variance process established in 
Subpart D of the final rule.
    A worker is an employee of a DOE contractor who performs work for 
DOE at a covered workplace in furtherance of a DOE mission. A few 
commenters (Exs. 16, 31, 39, 48) suggested that DOE modifying the 
proposed definition for ``worker'' to exclude the phrase ``or any other 
person.'' Specifically, two commenters (Exs. 16, 31) remarked that the 
definition of worker could be interpreted to include work conducted 
off-site and at non-DOE locations. Furthermore, all types of activities 
on a DOE site (including non-DOE-related ones like those of a UPS 
courier delivering packages, copier service person, vending machine 
maintenance person, or office supply delivery driver) could be 
misconstrued as work under the regulation. One of these commenters (Ex. 
16) further suggested the definition should be re-worded as ``persons 
who perform work for or on behalf of DOE at a covered workplace * * 
*''. Additionally, the commenter argued the term ``work'' should be 
defined for the purposes of the rule. In response to these comments, 
DOE revised the definition to make clear it applies only to contractor 
employees, including subcontractor employees, who are performing work 
at a covered workplace in furtherance of a DOE mission.
    Another commenter (Ex. 39) sought clarification on whether the 
definition of ``worker'' included private tenants present on a DOE site 
under a lease arrangement and cautioned that the phrase ``* * * or any 
other person who performs work at a covered workplace'' could be 
broadly interpreted to include work not being performed by a DOE 
contractor. Final rule section 851.1(a) clarifies that the rule applies 
to the conduct of contractor activities at DOE sites and final rule 
section 851.3 clarifies the definition of ``DOE site.''
    A workplace hazard is a physical, chemical, biological, or safety 
hazard with any potential to cause illness, injury, or death to a 
person. DOE received numerous comments (Exs. 5, 13, 16, 20, 29, 31, 39, 
45, 47, 49, 51) on the inclusion of radiological hazards in the 
supplemental proposed definition. Most favored the elimination of 
radiological hazards from the definition, citing a need for consistency 
across the rule and noting that radiological hazards are addressed 
under other existing regulations like 10 CFR Parts 820, 830, and 835. 
DOE acknowledges these concerns and has removed reference to 
radiological hazards from this definition in the final rule. However, 
as previously discussed, this change should not be interpreted to 
eliminate the need to analyze all hazards in an integrated manner.
    Many commenters (Exs. 15, 20, 28, 39) expressed concerns about the 
use of the term ``potential'' in the definition for workplace hazards. 
Some commenters (Exs. 15, 20, 28) suggested replacement of the proposed 
language ``with any potential to cause illness,'' with the language 
``with the potential to cause illness'' or ``with any potential to 
cause imminent illness'' in the definition for workplace hazards; this, 
they asserted, would account for the fact that many chemical, 
biological, and radiological exposures resulting from chronic exposures 
can, after decades, cause illness, injury, and death. Another commenter 
(Ex. 39) cautioned that the proposed definition of ``workplace hazard'' 
could be interpreted to preclude the mere presence of a hazardous 
material with any potential to cause illness and hence should be 
modified. DOE believes a broad definition of ``workplace hazard'' is 
appropriate to ensure that all hazards are considered in determining 
how to provide a safe and healthful workplace.
    Section 851.3(b) provides that if a term is defined in the AEA but 
is not defined in this rule, it has the meaning defined in the AEA for 
the purpose of this rule.
Section 851.4--Compliance Order
    Section 161 of the AEA grants the Secretary broad authority to 
order those actions deemed necessary by the Secretary to protect 
facility workers and the environment from any injury because of 
activity under the Act. Section 851.4(a) makes it clear that the 
Secretary has the authority to issue a compliance order to any 
contractor for a situation that violates, potentially violates, or 
otherwise is inconsistent with a requirement of Part 851 or the AEA. 
The compliance order will state the action or remedy that the Secretary 
deems necessary and the reasons for the action or remedy. One commenter 
(Ex. 20) inquired how compliance orders would be reconciled with 
contract obligations and limitations and funding. In response to this 
question, DOE notes compliance orders represent an exercise of 
Secretarial authority under the AEA and are not dependent on 
contractual provisions.
    One commenter (Ex. 54) recommended that this provision also require 
posting of the compliance order as well as employer responses, 
corrections, or requests for rescission or modification. DOE agrees and 
has revised final rule section 851.4(d) to require posting of 
compliance orders. This provision stipulates that the

[[Page 6873]]

posting must remain in place until the violation is corrected. In 
addition, final rule section 851.42(e) requires posting of preliminary 
notices of violations (PNOVs) once they become final. The rule does 
not, however, require posting of employer responses to compliance 
orders or requests for recessions.
    Section 851.4(a)(1) establishes that the Secretary may issue to any 
contractor a Compliance Order that identifies a situation that 
violates, potentially violates, or otherwise is inconsistent with a 
requirement of this part. Two commenters (Exs. 15, 42) took issue with 
the reference to potential violations and the phrase ``otherwise is 
inconsistent with'' in this supplemental proposed provision. The 
commenters expressed concern that given the gravity of a compliance 
order and the progressive nature of enforcement described in Appendix B 
section IX, compliance orders should require a more definitive 
determination of violation. The commenters recommended that the phrase 
``potentially violates, or otherwise is inconsistent with'' be deleted 
from the provision. One commenter (Ex. 42) pointed out that OSHA does 
not cite employers for potential violations or inconsistencies and 
recommended adoption of a process similar to OSHA. DOE disagrees. This 
language, including the phrase ``potentially violates,'' is consistent 
with the Department's longstanding procedural requirements set forth at 
10 CFR 820.41. Given that these provisions have worked well in 
practice, DOE has determined that it would be inappropriate to modify 
this language.
    Another commenter (Ex. 27) suggested that the phrase ``violates, 
potentially violates, or otherwise inconsistent with'' was vague (as 
was language throughout the rule). The commenter recommended that the 
entire rule be rewritten to eliminate vague standards and criteria. 
Although the referenced phrase is broad, DOE does not agree that it is 
vague, and it is retained in the final rule. As to the broader comment 
about vagueness in the rule, DOE has carefully reviewed the rule in 
light of all comments received during the public comment period and has 
attempted to address those requesting clarification or further detail. 
DOE also intends to publish appropriate guidance materials to further 
help contractors with implementation.
    Section 851.4(a)(2) establishes that the Secretary may issue to any 
contractor a compliance order that mandates a remedy, work stoppage, or 
other action. Section 851.4(a)(3) establishes that any compliance order 
issued by the Secretary to any contractor will state the reasons for 
the remedy, work stoppage, or other action. DOE received no comments on 
these provisions during the public comment period.
    Section 851.4(b) establishes that the compliance order will be a 
final order that is effective immediately unless the order specifies a 
different effective date. Section 851.4(c) grants the recipient of a 
compliance order the right to ask the Secretary to rescind or modify 
the compliance order within 15 days of its issuance. The filing of a 
request for an appeal under this section will not automatically stay 
the effectiveness of such an order. The Secretary, however, could issue 
a compliance order that would provide an effective date after the 
issuance date, allowing a longer period to appeal the terms of the 
order.
    Two commenters (Exs. 5, 31) expressed concern that the 15-calendar 
day appeal period was not long enough. They argued that ``it takes a 
month for a document issued by DOE-Headquarters to reach a DOE 
contractor.'' One commenter (Ex. 31) proposed 15 calendar days from 
receipt of the compliance order as an alternative to this provision. 
One commenter (Ex. 39) felt that the appeal provision was a moot point 
if the contractor had to take immediate action because the Order was 
not stayed upon submittal of the appeal. The commenter recommended that 
compliance orders be stayed during the 15-day window (or upon a 
decision of the Secretary) unless a stay posed significant safety and 
health consequences. In response DOE notes that a primary purpose of a 
compliance order is to address situations that require immediate 
action. DOE believes that it is inappropriate to delay corrective 
action unless extenuating circumstances exist. In such cases, final 
rule section 851.4(c) allows the Secretary to stay the Compliance 
Order, if appropriate, pending review of the contractor's request to 
modify or rescind the Order. In addition, these time frames are 
consistent with the procedures set forth in 10 CFR Part 820.
Section 851.5--Enforcement
    This section establishes enforcement provisions for the rule. Like 
other Departmental regulations that apply to DOE contractors, this 
provision allows DOE to employ contractual mechanisms such as reduction 
in fees, or to assess a civil penalty when a contractor fails to comply 
with the provisions of this rule. These mechanisms help the Department 
ensure that workers receive an appropriate level of protection while 
performing Departmental activities that involve exposure or the 
potential for exposure to workplace safety and health hazards.
    DOE received two general comments recommending changes to aspects 
of the rule that are mandated by section 3173 of the NDAA. One 
commenter (Ex. 6) pointed out that DOE has already successfully 
incorporated OSHA requirements into its workplaces. Stating that 
``enforcement appears to be a DNFSB issue,'' the commenter recommended 
that ``OSHA enforcement be worked/addressed between DOE and OSHA and 
not driven by DNFSB (except on Defense Nuclear Facilities).'' The 
second commenter (Ex. 5) suggested that DOE ``pick one way to fine the 
contractor'' and suggested that DOE not ``dilute penalty authority.'' 
DOE believes the two penalty methods give the Department greater 
flexibility in determining the appropriate enforcement mechanism to 
address specific violations of the rule. While DOE intends to use civil 
penalties for most enforcement actions, contract penalties will be 
reserved for egregious violations that indicate general worker safety 
and health program failure. When appropriate, the Director will 
coordinate with the DOE Field Element to select the most effective 
penalty approach.
    Other commenters stated that penalties should not be imposed for an 
employer's own observations. One of these commenters (Ex. 16) suggested 
that behavior-based safety systems (in which employers report 
observations on at-risk behaviors) should not be subject to enforcement 
action. DOE notes that contractors may employ various means and methods 
to identify and abate noncompliances, such as behavior-based safety 
programs, and that noncompliances of greater significance may be 
reported into the Noncompliance Tracking System (NTS). Furthermore, DOE 
recognizes the value that an initiative such as behavior-based safety 
can add to the development and implementation of a comprehensive safety 
and health program. Therefore, such an initiative should be an integral 
part of the contractor's approved safety and health program, which is 
subject to DOE review. During the performance of onsite inspections, 
for instance, the Office of Price-Anderson Enforcement may evaluate the 
approved safety and health program to determine the degree and depth of 
compliance measures taken by contractors. A second commenter (Ex. 42) 
believed that penalties for safety and health issues that are self-
identified via NTS ``will have a chilling effect on contractor's self 
disclosing issues.'' DOE agrees and intends to create reporting 
guidelines that will help ensure contractors

[[Page 6874]]

understand and are more comfortable with DOE's expectations. Future 
enforcement guidance supplements (EGSs) will establish reasonable NTS 
reporting thresholds. It is in the contractor's best interest to report 
self-identified noncompliances above the NTS reporting thresholds since 
the contractor may receive up to 50% mitigation of the base penalty for 
self-reporting--as specified in Appendix B section IX.b.3.
    DOE received a number of comments requesting clarification 
regarding how various aspects of enforcement will proceed under section 
851.5. For example, several commenters (Exs. 20, 29, 45, 28, 51) 
wondered against whom enforcement action would be directed if a 
subcontractor to a management and operating contractor violated a 
requirement. These commenters inquired how the rule would apply under 
several specific circumstances, such as if the subcontractor had a 
direct contract with DOE (Ex. 29). In general, DOE will consider 
enforcement actions against any and all contractors associated with a 
violation. All subcontractors and suppliers of an indemnified 
contractor are considered indemnified contractors, and as such are 
subject to either civil penalties or contract penalties. In order to 
clarify the matter, DOE expects to publish an EGS based on OSHA's 
multi-employer worksite policy to guide enforcement efforts on multi-
employer worksites.
    Another commenter (Ex. 25) wondered how the enforcement process 
would view legacy issues. DOE believes the provisions on ``closure 
facilities'' and ``variances'' provide sufficient flexibility to deal 
with legacy issues. A commenter (Ex. 16) suggested that, because 
section 851.2(a)(1) excludes applicability of this rule to sites 
regulated by OSHA, the OSHA-regulated sites are being held to a 
different level of requirements and a different enforcement structure 
than non-OSHA-regulated sites. As an example, the commenter pointed out 
that OSHA does not mandate compliance with the entire set of consensus 
standards included in Subpart C of the supplemental proposal, nor does 
OSHA require the formal exemption process of proposed Subpart D. DOE 
acknowledges these concerns and has significantly reduced the number of 
consensus standards mandated under Subpart C of the final rule to be 
more consistent with the standards required under DOE Order 440.1A. 
These standards have been evaluated by the DOE safety and health 
community and determined necessary to address worker safety and health 
hazards on DOE sites. DOE notes, as discussed above, that these 
requirements may be applied to DOE contractors excluded from this rule 
through contract mechanisms, if DOE determines that the standards are 
applicable to the work performed by the contractor. In addition, DOE 
has revised Subpart D of the rule to establish a variance process 
modeled after the OSHA variance process established in 29 CFR Part 
1905.
    Concerned about the possibility of willful employee misconduct 
beyond the control of the contractor, one commenter (Ex. 29) 
recommended that the enforcement language of the rule should include a 
responsibility for employees to comply, similar to section 5(b) of the 
OSH Act. This commenter suggested that the added provision mirror the 
``unpreventable employee misconduct'' defense recognized by OSHA. DOE 
agrees with this comment and has added section 851.20(b) to the final 
rule to prohibit workers from taking actions that are inconsistent with 
the rule. In addition, DOE intends to develop enforcement guidance for 
the rule that will include provisions similar to OSHA's unpreventable 
employee misconduct defense outlined in OSHA's Field Inspection 
Reference Manual in Chapter III, Paragraph C.8.c(1).
    In another comment related to how the section applies to 
subcontractors, the commenter (Ex. 33) suggested that DOE revise DEAR 
952.250-70 (either through this rulemaking or a separate rulemaking) to 
inform contractors with an indemnification agreement that they are 
subject to civil penalties under the rule and to require them to flow 
this notice down to all lower-tier subcontractors. The commenter 
indicated that a similar revision was also made ``when Congress added 
formal regulation by DOE of nuclear safety matters.'' DOE recognizes 
the commenter's concern, but notes that section 3173 of the NDAA 
mandates that DOE promulgate a rule to enforce worker safety and health 
program requirements. The statutory mandate does not stipulate nor are 
its provisions contingent upon rulemaking related to the DEAR. 
Accordingly, such a change would be beyond the scope of this 
rulemaking.
    Section 851.5(a) implements the statutory provision of section 234C 
paragraph b of the AEA which provides that ``a person (or any 
subcontractor or supplier thereto) who has entered into an agreement of 
indemnification under section 170d of the AEA (or any subcontractor or 
supplier thereto) that violates (or is the employer of a person that 
violates) any regulation promulgated under [section 234C] shall be 
subject to a civil penalty of not more than $70,000 for each such 
violation.'' For continuing violations, section 234C further provides 
that each day of the violation shall constitute a separate violation 
for the purposes of computing the civil penalty to be imposed. 
Specifically, under section 851.5(a) a contractor (or any subcontractor 
or supplier thereto), whose contract with DOE contains an 
indemnification agreement and that violates (or whose employee 
violates) any requirement of the regulations will be subject to a civil 
penalty of not more than $70,000 for each such violation. In the case 
of a continuing violation, this provision of the rule clarifies that 
each day of the violation constitutes a separate violation for the 
purpose of computing the amount of the civil penalty.
    DOE received several comments related to the penalty structure 
described by section 851.5(a). These commenters (Exs. 16, 27, 37, 14, 
39, 46) argued that the civil penalty structure under the rule, with 
its $70,000 per violation maximum penalty, is 10 times higher than the 
OSHA penalty structure, and thus disproportionately sanctions DOE 
contractors compared to other U.S. industries. These commenters 
believed OSHA's penalty structure should be used and felt the DOE 
structure was excessively burdensome given the increased frequency of 
inspection that tends to be associated with DOE facilities. DOE points 
out that the penalty structure is not determined by DOE, but rather is 
established by statue. As a result, the Department is not free to 
deviate from these provisions. The Director may, however, use 
discretion in determining what enforcement actions may be taken and in 
establishing the final penalty amounts. DOE also points out that it is 
the responsibility of the contractor to identify and abate 
noncompliances, thus avoiding penalty.
    One of these commenters (Ex. 27) also submitted a related 
suggestion that DOE should establish enforcement thresholds. DOE 
agrees. Since violations have varying degrees of safety and health 
significance, DOE has established severity level thresholds that 
distinguish on the basis of possible consequence and have appropriate 
sanctions. Such thresholds and guidance were established in 
supplemental proposed Appendix A and are retained in Appendix B section 
VI to the final rule.
    Other comments on section 851.5(a) related to the definitions and 
obligations of contractors and subcontractors. One commenter (Ex. 48) 
expressed concern that language in supplemental proposed

[[Page 6875]]

section 851.9(a)--e.g., ``contractor * * * (or any subcontractor or 
supplier thereto) that violates (or whose employee violates)''--expands 
the definitions of ``contractor'' and ``worker'' beyond those in 
supplemental proposed section 851.3 and beyond the scope of the rule 
stated in supplemental proposed section 851.1. The commenter thought 
that this ``expanded'' definition might be interpreted as including 
work done by suppliers and vendors on sites far removed from DOE sites. 
DOE disagrees with this comment. Section 851.3 defines terms such as 
``contractors'' and ``workers,'' while section 851.1 of the final rule 
describes which contractors are subject to the rule and section 851.5 
describes enforcement provisions that apply to those contractors that 
are subject to the rule (as defined in section 851.1.). Sections 851.3 
and 851.5 do not change (and are not intended to change) the scope of 
the rule. Furthermore, section 851.1(a) states that the rule applies to 
the conduct of contractor activities at covered workplaces.
    Believing that ``small business subcontractors are exempt from OSHA 
requirements,'' the same commenter (Ex. 48) was concerned that this 
rule would make small business subject to OSHA requirements, as well as 
DOE enforcement and penalties, and would thus have a serious impact on 
small businesses. DOE notes that this commenter's belief that small 
businesses are exempt from OSHA requirements is inaccurate. Although 
employers with 10 or fewer employees are exempt from most OSHA 
recordkeeping requirements for recording and reporting occupational 
injuries and illnesses, small businesses must comply with OSHA 
requirements and are subject to inspections (such as for accident 
investigations, complaint inspections, and other reasons). Because 
small businesses do not have the same resources as larger 
establishments, businesses do receive penalty reduction based on 
employer size. The commenter (Ex. 48) also asked for clarification 
regarding whether contractor employees are subject to civil penalty 
under the rule. DOE confirms that contractor employees are not subject 
to civil penalty; however, under section 851.20(a)(3) contractors are 
required to assign worker safety and health responsibilities, evaluate 
personnel performance, and hold personnel accountable for worker safety 
and health performance.
    One commenter (Ex. 5) inquired about a specific situation in which 
OSHA had inspected facilities and found issues that would take a long 
time to resolve, so long that the corrective action plan would extend 
beyond the implementation date of the final rule. In this case, the 
commenter wondered, would the remaining violations be considered 
``continuing violations'' and be subject to penalty for each day the 
condition goes uncorrected? The House Committee directed that 
$25,000,000 be transferred from the Departmental Administration account 
to the Science Laboratories Infrastructure to begin addressing the 
safety deficiencies at the Science laboratories. In addition, the 
Committee directed the Department to request sufficient funding in the 
budget requests for fiscal years 2005 and 2006 to correct the remainder 
of the safety deficiencies. In such cases, DOE will consider the 
contractors abatement plan as well as the presence of interim control 
measures when assessing the penalty. One should note that there are no 
provisions for grandfathering existing noncompliances.
    DOE received two comments suggesting specific changes in the 
wording of the civil penalty enforcement provision in the supplemental 
proposal. In the first, the commenter (Ex. 5) suggested revising the 
second parenthetical phrase in section 851.5(a) to read ``* * * whose 
employee or subcontractor violates.'' DOE disagrees with this editorial 
suggestion. The rule applies directly to subcontractors. A contractor 
is not automatically liable for a subcontractor's violations. To 
provide clear guidance on the subject, DOE will publish and implement 
an EGS on DOE's multi-employer worksite policy (similar to OSHA's 
policy) to clarify appropriate enforcement for subcontractor 
violations.
    The second commenter (Ex. 37) recommended that DOE add a provision 
stating that civil fines will not be imposed unless the contractor knew 
of the hazard and employees were injured or endangered. DOE disagrees 
that these criteria should protect a contractor from civil penalty; 
however, the Department does agree that these criteria should be 
considered in determining the appropriate level of penalty. DOE also 
notes when a contractor is not aware of a hazard, the question becomes 
``Should they have been aware of the hazard?'' That is, did the 
contractor implement effective workplace assessment and inspections 
procedures as required under final rule section 851.21?
    Section 851.5(b) implements the provisions of section 234C.c. of 
the AEA. Section 234C.c. of the AEA requires DOE to include provisions 
in its contracts for an appropriate reduction in the fees or amounts 
paid to the contractor if the contractor or a contractor employee 
violates the regulations issued pursuant to section 234C. The Act 
requires these provisions to be included in each DOE contract with a 
contractor that has entered into an agreement of indemnification under 
section 170d of the AEA (the Price-Anderson Amendment Act). The 
contract provisions must specify the degrees of violations and the 
amount of the reduction attributable to each degree of violation.
    DOE is implementing this statutory mandate to include provisions 
for the reduction in fees in contracts for violations of this part 
pursuant to the contract's ``Conditional Payment of Fee'' clause. Most 
DOE management and operating contracts currently contain such a clause 
providing for reductions of earned fee, fixed fee, profit, or share of 
cost savings that may otherwise be payable under the contract if 
performance failures relating to environment, safety, and health occur. 
See 48 CFR 970.5215-3, ``Conditional Payment of Fee, Profit, or 
Incentives'' (applicable to DOE management and operating contracts and 
other contracts designated by the Procurement Executive). DOE amended 
this clause to set forth the specific criteria and conditions that may 
precipitate a reduction of earned or fixed fee, profit, or share of 
cost savings under the contract. The clause establishes reduction 
ranges that correlate to three specified degrees of performance 
failures relating to environment, safety, and health. In the final 
rule, DOE clarifies that the term ``environment, health, and safety,'' 
as applied in the context of the rule, includes matters relating to 
``worker safety and health.'' Under the rule, DOE will apply the same 
reduction ranges and degrees of performance failure specified in the 
``Conditional Payment of Fee, Profit, or Incentives'' clause to worker 
safety and health. In a parallel provision to section 234C.c., section 
851.5(b) implements this statutory mandate by making a contractor that 
fails to comply with the requirements of Subparts B and C of the rule 
subject to a reduction in fees or other payments under a contract with 
DOE pursuant to the contract's ``Conditional Payment of Fee'' clause.
    Several of the comments that DOE received on section 851.5(b) 
related to how and by how much, fees could be reduced under this 
provision. Three commenters (Exs. 28, 45, 51) believed that reduction 
in fee is always an option for DOE and should not be a part of the 
rule, but instead should be included in appropriate contracts. DOE does 
not agree with these commenters. While

[[Page 6876]]

contract penalties are always applicable to provisions of a contract, 
they may or may not be directly linked to specific safety and health 
provisions of a contract. DOE believes that the rule strengthens 
enforcement options by specifying that contract penalties may be 
applied to violations of the requirements of the rule. Further, 
including this provision in the regulation is consistent with the 
underlying purpose of section 234C of the AEA.
    Two other commenters (Exs. 29, 47) were concerned whether the 
reduction in fee could exceed the $70,000 maximum established for civil 
penalties. One of these commenters (Ex. 47) thought that, to be 
consistent with section 234C(b) of the AEA, DOE needed to specify a 
maximum of $70,000 contract fee reduction to ensure ``legal equity'' 
between the civil penalty and the contract fee reduction mechanism. DOE 
notes that except where a violation is considered a continuing 
violation, and each day is considered a separate day for the purposes 
of computing the penalty, the maximum civil penalty for each violation 
will not exceed $70,000. However, for contract penalties DOE will 
follow the Conditional Payment of Fee Clause. Other commenters 
suggested additional language and definitions for this section. One 
commenter (Ex. 47) suggested modifying the rule to state ``The Director 
(e.g., principal enforcement officer) must approve invocation of the 
Conditional Payment of Fee Clause.'' This commenter believed that 
supplemental proposed Appendix A section IX(1)(f) only required 
``coordination'' of all violations with the DOE contract official 
responsible for administering the Conditional Payment of Fees Clause 
when considering invoking the provisions for reducing contract fees. 
DOE does not agree and notes that the Director has been delegated the 
responsibility for determining the appropriate type of penalty to be 
applied to a given violation. When contract penalties are used in lieu 
of civil penalties, the Director coordinates with the responsible 
contracting official since the selected remedy is within the purview of 
the contracting officer.
    Two other commenters (Exs. 28, 51) presumed that a reduction in 
fees under this provision could not be brought against a subcontractor 
due to ``privity of contract'' (i.e., DOE does not have a relationship 
with the subcontractor). These commenters found this somewhat confusing 
because the term ``contractor'' was defined to include 
``subcontractor.'' DOE requires contractors to flow the requirements of 
this rule down to their subcontractors. Thus, if DOE elects to reduce 
the contractor's fee, the contractor could in turn penalize the 
subcontractor. As noted previously, however, a more likely scenario is 
that DOE would simply choose the civil penalty option.
    As a general matter, DOE intends to use civil penalties as the 
remedy for most violations where DOE may elect between remedies. DOE 
expects to invoke the provisions for reducing contract fees only in 
cases involving especially egregious violations or that indicate a 
general failure to perform under the contract with respect to worker 
safety and health. Such violations would call into question a 
contractor's commitment and ability to achieve the fundamental 
obligation of providing safe and healthy workplaces for workers because 
of factors such as willfulness, repeated violations, death, serious 
injury, patterns of systemic violations, flagrant DOE-identified 
violations, repeated poor performance in an area of concern, or serious 
breakdown in management controls. Because such violations indicate a 
general failure to perform under the contract with respect to worker 
safety and health, where both remedies are available and DOE elects to 
use a reduction in fee, DOE would expect to reduce fees substantially 
under the Conditional Payment of Fee clause.
    Section 234C.d. of the AEA imposes three specific limitations on 
DOE's authority to seek monetary remedies. Specifically, DOE may not 
(1) both reduce contract fees and assess civil penalties for the same 
violation of a worker protection requirement; (2) with respect to those 
nonprofit contractors specifically listed as exempt from civil 
penalties for nuclear safety violations in subsection d. of section 
234A of the AEA, assess an aggregate amount of civil penalties and 
contractor penalties in a fiscal year in excess of the total amount of 
fees paid by DOE to that nonprofit entity in that fiscal year; and, (3) 
assess both civil penalties authorized by section 234A (nuclear safety 
and radiological protection regulations) and those authorized by 
section 234C (worker safety and health regulations) for the same 
violation. These statutory limitations are set forth in sections 
851.5(c), (d) and (e) of the rule.
    DOE received six comments on section 851.5(c), two comments on 
section 851.5(d), and no comments specific to section 851.5(e). Several 
of the comments on section 851.5(c) relate to the imposition of civil 
or contract penalties. One commenter (Ex. 15) pointed out that DOE is 
prohibited from using both civil penalties and contract penalties thus 
supplemental proposed section 851.9(c) should replace the word ``may'' 
with ``shall'' in the phrase ``DOE shall not penalize a contractor * * 
*'' DOE disagrees with this commenter since ``may not'' means ``is not 
permitted.''
    Another commenter (Ex. 13) felt that the criteria used to make the 
determination for imposing the civil penalty rather than reducing 
contract fees should be embedded in the rule. DOE has not adopted this 
suggestion. Under the final rule, the decision to use either civil 
penalties or contract penalties is at the discretion of the Director 
and is subject to the specific circumstances of each situation. The 
Director will coordinate with the appropriate contracting official when 
deciding upon the appropriate penalty method. DOE believes that 
attempting to predict and develop mandatory criteria encompassing all 
potential circumstances in this rule would be unnecessarily restrictive 
and counter to the provision of the statutory requirement for 
flexibility and discretion in the enforcement of this rule.
    Another commenter (Ex. 48) recommended revising this section to 
state that a contractor cannot be penalized under sections 851.5(a) and 
(b) for the same violation even if such violation is addressed under 
another DOE rule, regulation, or order contained in the contractor's 
contract. The commenter suggested that although supplemental proposed 
section 851.9(c) attempts to prevent dual (contract and civil) 
penalties for the same violation, such ``double jeopardy'' could exist 
if DOE codifies DOE Order 440.1A. DOE believes this commenter's concern 
is unfounded. The statute is clear on this issue and the final rule 
retains the original provision to prevent the use of civil and contract 
penalties for the same violation.
    One commenter (Ex. 54) questioned DOE's decision not to subject 
contractors to both civil and contract fee reduction penalties for the 
same violation. The commenter cited the National Academy of Public 
Administration (NAPA) studies, which show that bonuses were not 
effectively linked to safety and health performance. DOE notes that, as 
was described previously, the statute specifically prohibits DOE from 
imposing both contract and civil penalties for the same safety and 
health violation.
    A second commenter (Ex. 37) suggested expanding supplemental 
proposed section 851.9(c) in the final rule to avoid imposing a fine 
when a

[[Page 6877]]

contractor earns less than the available fee as a result of a safety 
and health incident. DOE does not believe an expansion of the 
limitation is needed. A civil penalty can only be applied if violation 
of the rule exists. If this violation resulted in an injury, final rule 
section 851.5(c) would prevent DOE from implementing both civil and 
contract penalties for the same violation. DOE notes, however, that if 
an injury resulted from a violation, DOE would consider this fact, as 
well as the severity of the injury, in determining the amount of 
penalty.
    Referring to the section 851.3 definition of ``contractor'' as it 
applies to section 851.5(c), the same commenter (Ex. 37) inquired what 
DOE expects of ``affiliates.'' To ensure that responsible parties such 
as an affiliate are held responsible for the safety and health of 
workers, and to maintain consistency with the duties and 
responsibilities set forth in 10 CFR part 820, DOE is retaining the 
reference to affiliated entities in the definition. It is important to 
note, however, that DOE will consider enforcement actions against any 
and all contractors associated with a violation. All subcontractors and 
suppliers of an indemnified contractor are considered indemnified 
contractors, and as such, are subject to either civil penalties or 
contract penalties.
    The two comments related to section 851.5(d) were both received 
from the same commenter (Ex. 29). One of the comments requested that 
the provision state that penalties ``shall'' (rather than ``may'') not 
exceed the contract fee. DOE notes that the language in the final rule 
``may not exceed'' is consistent with the enacting legislation. DOE 
understands (and intends for) this language to mean that the Department 
is not permitted to assess an aggregate amount of civil and contract 
penalties against a non-profit entity under the rule in excess of the 
total amount of fees paid by DOE to that non-profit entity for the 
given fiscal year. The second comment (Ex. 29) suggested that, to the 
extent that DOE may assess both nuclear safety (under 10 CFR 820) and 
worker safety penalties (under this rule), this final rule should 
clarify that the penalty limit applies to an aggregate of both types of 
assessments. DOE notes, that the statute authorizing the assessment of 
civil penalties for violations of the rule does not require a limit 
based on total annual penalties assessed for violations of nuclear 
safety requirements. Therefore, this final rule does not limit total 
annual penalty amounts due to penalties assessed under 10 CFR 830. DOE 
will, however, consider this recommendation in developing an 
enforcement guidance supplement (EGS) for worker safety and health 
enforcement.
    DOE notes that enforcement actions cannot be brought until the rule 
becomes effective, which is one year after publication in the Federal 
Register. Moreover, enforcement actions must be based on violations 
that take place after the effective date of the rule. Furthermore, 
compliance with certain requirements (such as submission of a worker 
safety and health program) is not required immediately upon the 
effective date of the rule. Of course, nothing in the rule affects the 
possibility of enforcement of contractual provisions in effect prior to 
the effective date of the rule.
Section 851.6--Interpretation
    Supplemental proposed section 851.6(a) established that the Office 
of General Counsel would be responsible for formulating and issuing any 
interpretation concerning a requirement in this part. Several 
commenters (Exs. 11, 15, 16, 31, 36, 39, 42, 48, 54) were critical of 
this supplemental proposed provision which gave the DOE Office of 
General Counsel an exclusive role in issuing interpretations of this 
part. They expressed concern that DOE's interpretations of OSHA 
standards would conflict with existing OSHA interpretations. The 
commenters stated that the codes and standards of Subpart C require 
interpretation by a competent technical authority and suggested that 
DOE adopt technical interpretation procedures similar to OSHA's--that 
is, these commenters felt the Assistant Secretary for Environment, 
Safety and Health should issue all technical interpretations. Two 
commenters (Exs. 31, 48) suggested that DOE use the Field Office staff 
to assist in developing interpretations and a few commenters (Exs. 15, 
16, 48) recommended that DOE adopt already existing OSHA 
interpretations where possible. Yet, another commenter (Ex. 29) 
questioned whether interpretations could be captured in the contractor 
worker safety and health program and approved by virtue of the CSO 
approval of the program.
    Although DOE is of the view that the distinction between legal 
interpretations and technical interpretations is too vague for those 
terms to be used in part 851, DOE has responded to the comments by 
elaborating on the procedures available to members of the public who 
want to ask for an interpretation or who want to ask for amendments to 
part 851 to clarify or alter regulatory provisions. DOE has revised 
proposed section 851.6 and added new sections 851.7 and 851.8. Section 
851.6 of the final rule, sets forth procedures for petitions to 
initiate generally applicable rulemaking to amend the provisions of 
part 851. Section 851.7 of the final rule provides for requests for 
interpretive rulings applying the regulations to a particular set of 
facts and providing an interpretation that is binding on DOE.
    Section 851.8 of the final rule provides for requests for 
information on the standards in part 851, which may be directed to the 
Office of Environment, Safety and Health, Office of Health (EH-5). The 
responses given by EH-5 would be advisory only and would not be binding 
on DOE. In addition, to assist the DOE community in understanding the 
technical meaning or application of a specific requirement, EH-5 would 
continue to operate its safety and health response line to provide 
information on technical safety and health requirements, requirements 
published by OSHA, and other adopted standards. In cases where the 
information is related to OSHA standards, EH-5 would continue to 
consult the existing body of OSHA interpretations on these regulations. 
EH-5 would also consult with OSHA representatives if OSHA 
interpretations did not address a unique DOE question or circumstance.

B. Subpart B--Program Requirements

    Subpart B of the final rule establishes general administrative 
requirements to develop, implement, and maintain a worker protection 
program. The worker safety and health program would serve as the 
blueprint through which DOE contractors can communicate a cohesive 
vision for how various elements making up their overall program 
interrelate.
    As a general suggestion, one commenter (Ex. 6) recommended that 
supplemental proposed Subpart B be cross-walked against OSHA's 29 CFR 
1910 and 29 CFR 1926 to identify potential overlaps and deviations 
between the OSHA standards and the proposed rule. DOE has considered 
the commenter's concern but believes such an effort would serve no 
useful purpose, as the OSHA standards do not establish provisions for a 
safety and health program.
Section 851.10--General Requirements
    Section 850.10 establishes the general requirements for the worker 
safety and health program. These requirements outline the basic duties 
of a contractor to maintain a safe and healthful workplace, to comply 
with the requirements of this rule, and to develop and implement a 
written program. A few commenters (Exs. 37, 48, 49, 51) expressed 
concern that the

[[Page 6878]]

worker safety and health program would result in increased costs and 
burden of additional paperwork due to the extensive requirements of the 
rule. They were particularly concerned that supplemental proposed 
section 851.100 introduced new requirements above and beyond what is 
expected under existing DOE directives and felt that these 
requirements, along with a complicated exemption process, would result 
in increased costs. DOE acknowledges the concerns of these commenters 
and notes that the final rule has been revised to closely follow the 
requirements in DOE Order 440.1A. Hence, DOE believes that 
implementation of the final rule will result in minimal (if any) 
additional costs.
    DOE also received comments on the subject of limited-duration 
contractors onsite. One commenter (Ex. 40) sought clarification that 
the worker safety and health program requirements applied to all 
contractors, including those brought in for limited-duration and 
limited-scope work or tasks. DOE notes that final rule section 851.1 
clarifies that the worker safety and health requirements of the rule 
govern the conduct of contractor activities at DOE sites. This includes 
limited-duration contractors along with all others (with the exception 
of contractors performing work covered under the exclusions in final 
rule section 851.2).
    Another commenter (Ex. 37) pointed out that limited-duration 
contractors will have to become familiar with a safety program foreign 
to them. In response to this concern, DOE believes the program is based 
on sound worker safety and health principles designed to protect the 
safety and health of workers on DOE sites. DOE sees no reason to hold 
one group of DOE contractors to a lesser standard of safety and health 
protection than others. DOE also believes that the complexity and level 
of effort needed to develop and implement worker safety and health 
program under this rule will be greatly dependent on the complexity, 
duration, and scope of the activities covered. As a result, DOE would 
expect that a limited duration contractor performing a task of limited 
scope would require a much simpler program than would a management and 
operating contractor on a large DOE facility.
    A few commenters (Exs. 3, 4, 45) took issue with the requirement in 
supplemental proposed section 851.100(b)(3)(iii) for contractors to 
achieve national security missions of the DOE ``in an efficient and 
timely manner'' and deemed it inappropriate in a rule governing worker 
safety and health. Further, one commenter (Ex. 20) believed that 
implementation of the rule itself would have an adverse effect on its 
ability to ``achieve national security missions of the Department of 
Energy in an efficient and timely manner.'' In response to these 
concerns, DOE modified the language to eliminate this requirement from 
the program provisions of Subpart B. Instead, final rule section 
851.31(c)(3) provides for a national defense variance where a deviation 
from the letter of a safety and health standard may be necessary and 
proper to avoid serious impairment of national defense.
    Section 851.10(a)(1) provides that, with respect to a covered 
workplace for which a contractor is responsible, the contractor must 
provide a place of employment that is free from recognized hazards that 
are causing or have the potential to cause death or serious physical 
harm to workers. A similar provision established in section 5(a)(1) of 
the OSH Act of 1970 (29 U.S.C. 654) is commonly referred to as the 
General Duty Clause and states that each employer shall furnish to each 
of his employees employment and a place of employment which are free 
from recognized hazards that are causing or are likely to cause death 
or serious physical harm to his employees. Both OSHA and DOE currently 
apply this provision to workplaces covered under their respective 
jurisdictions.
    A few commenters (Exs. 3, 4, 16) expressed concern that the phrase 
``responsible for a covered workplace'' as applied to contractors in 
supplemental proposed section 851.4 could lead to confusion regarding 
applicability of the rule to both contractors and subcontractors. DOE 
has retained the language in the corresponding section 851.10(a)(1) of 
the final rule. DOE believes that final rule section 851.1 clearly 
establishes that the rule applies to contractor activities on DOE 
sites, and the revised definition of contractor in final rule section 
851.3 is clear as to what entities are considered to be contractors.
    Several commenters (Exs. 12, 16, 37) expressed concern that the DOE 
General Duty Clause lacked supporting guidance language, thus 
potentially resulting in the risk of this obligation being interpreted 
more severely than OSHA's General Duty Clause. These commenters 
suggested that guidance and case law developed by OSHA should be relied 
upon for determining violations and penalties under the DOE rule with 
defenses commonly available in OSHA enforcement proceedings equally 
available to DOE contractors. One commenter (Ex. 16) favored deleting 
the General Duty Clause altogether because, the commenter asserted, it 
is unattainable as a stand-alone mandatory requirement. As an alternate 
suggestion, if the Clause was not deleted, the same commenter concurred 
with two other commenters and recommended including the ``full context 
of the General Duty Clause as used by OSHA'' in the rule. Specifically, 
the commenter felt the provision should state that the Clause only 
applies where there is no standard and should list the four elements 
required by OSHA to prove a violation. DOE believes that the language 
used in final rule section 851.10(a)(1) for the General Duty Clause is 
consistent with the language established in the OSH Act and parallels 
that used in DOE Order 440.1A. As a result, DOE believes that its 
contractors are intimately familiar with this provision. However, to 
address these comments and to assist in consistent enforcement of the 
rule, the DOE Office of Price-Anderson Enforcement intends to prepare 
enforcement guidance supplements (EGSs) to provide guidance on 
interpretation of the General Duty Clause, consistent with OSHA 
guidance on the topic.
    DOE received several comments on the terminology used in 
supplemental proposed section 851.100(a) to refer to hazards. The 
majority of the commenters on this issue (Exs. 11, 28, 29, 39, 45, 49, 
51) favored retention of the term ``identified hazards'' to describe 
hazards that were within the rule. But some of these commenters (Exs. 
11, 29, 39, 49) suggested inclusion of additional terminology like 
``potential hazards,'' ``unprotected hazards,'' and ``inherent hazards 
that are controlled'' to ensure a better understanding of the types of 
hazards covered under the provision. A few commenters (Exs. 28, 45, 51) 
favored deleting the term ``recognized hazards'' from the text 
asserting that workers could only be protected from ``identified 
hazards.'' One commenter (Ex. 27) recommended that DOE provide a list 
of specific hazards that a place of employment should be free of to 
preclude subjective interpretations of the types of recognized 
workplace hazards that could cause or be likely to cause death or 
serious bodily harm.
    DOE has carefully considered these comments and has simplified 
section 851.10(a)(1) of the rule to require contractors to provide a 
workplace free of recognized hazards that are causing, or have the 
potential to cause, death or serious physical harm. Also, as discussed 
previously, DOE has removed the provision in supplemental proposed 
section 851.100(a)(2). Final rule sections 851.21(a) and 851.22(a) 
further clarify

[[Page 6879]]

that, as part of the contractor's worker safety and health program, 
procedures must be established that contractors will use to identify 
existing and potential workplace hazards and evaluate, prevent, and 
abate associated risks.
    With respect to hazard protection implications of the General Duty 
Clause, several commenters (Exs. 20, 31, 36, 39, 42, 49) asserted it 
was impossible to provide a workplace ``free'' of hazards without 
stopping work. Some of these commenters (Exs. 31, 36, 39, 42) suggested 
rewriting the provision to require the workplace to be ``free from 
uncontrolled or unmitigated hazards.'' DOE has elected to retain the 
original language consistent with the provisions of DOE Order 440.1A 
and OSHA's General Duty Clause and will provide appropriate 
implementation and enforcement guidance. Two other commenters (Exs. 20, 
42) questioned the definition of the term ``adequately'' in the context 
of the phrase ``adequately protected from identified hazards'' in 
supplemental proposed section 851.100(a)(2) and similar language in 
section 851.4(b). As previously discussed, DOE believes ``adequate 
protection'' is a clear standard that has been used in other context 
and recognizes the need to protect workers from all identified hazards.
    Several commenters (Exs. 5, 16, 29, 48) took issue with the phrase, 
``likely to cause death or serious bodily harm'' in section 
851.10(a)(1). One commenter (Ex. 5) felt that the phrase, as used in 
supplemental proposed sections 851.100(a) and 851.4(a), implied that 
only violations that could result in death or serious bodily harm would 
result in fines or penalties. This of course is not the case. Section 
851.5 of the final rule clarifies that contractors are subject to civil 
or contract penalties for any violations of any requirements of this 
rule. As specified in Appendix B section IX.b.2 and 3, however, DOE 
will consider the severity of the hazard posed to workers in 
determining the amount of the penalty imposed. The other commenters 
(Exs. 16, 29, 48) argued that the phrase was too subjective and had 
posed enforcement problems for OSHA in the past. These commenters felt 
that a change in language or a definition of the term ``serious bodily 
harm'' was needed to avoid confusion. DOE has modified this language 
slightly in final rule section 851.10(a) to replace ``serious bodily 
harm'' with ``serious physical harm.'' This change in terminology is 
consistent with the language in DOE Order 440.1A. DOE believes that 
this provision (and language) has been applied successfully through the 
Order for the past decade and that, as a result, contractors are 
intimately familiar with the language.
    Section 851.10(a)(2) requires the contractor to ensure that work is 
performed in accordance with all applicable requirements of Part 851 
and with the worker safety and health program for the workplace. One 
commenter (Ex. 37) expressed concerns about potential penalties that 
could result from failure to comply with the worker safety and health 
program. Specifically, the commenter was concerned that non-compliances 
with any component of a contractor's worker safety and health program 
(even those outside the requirements of the rule) could result in civil 
penalties. This commenter believed that enforcement against provisions 
of a contractor's program that go above and beyond the requirements of 
the rule will lead contractors to adhere only to the minimum 
requirements outlined in the rule and will result in a watered-down 
worker safety and health program. This commenter argued that only non-
compliances with specific worker safety and health requirements in the 
rule should result in civil penalties. DOE disagrees and believes that 
the requirement for contractors to develop and implement an approved 
program makes compliance with the provisions of the program enforceable 
under the rule. DOE expects that not enforcing these requirements would 
result in ineffective programs that are not fully implemented. DOE also 
notes that a contractor's proactive safety and health efforts will be 
considered in determining the level of penalty associated with a 
violation and believes that this will continue to compel contractors to 
develop and implement effective programs.
    Section 850.10(b)(1) specifies that the written program must 
describe how the contractor will comply with the requirements in 
Subpart C that are applicable to the hazards associated with the 
contractor's scope of work. Two commenters (Exs. 16, 48) expressed 
concern that excess paperwork would be generated due to the Subpart C 
requirements to develop numerous functional area sub-plans in the 
worker safety and health program. The commenter suggested that these 
Subpart C requirements duplicated the Subpart B requirement specifying 
effective implementation of supplemental proposed Subpart C in the 
written worker safety and health program. DOE agrees with these 
comments. Section 851.10(b)(1) of the final rule requires contractors 
to establish a written worker safety and health program that must 
describe how the contractor will comply with the requirements in 
Subpart C that are applicable to its scope of work. In addition, final 
rule section 851.24 requires contractors to take a structured approach 
to their worker safety and health program and include provisions for 
the applicable functional areas in the worker safety and health 
program. DOE believes that this integration of requirements will reduce 
excess paperwork.
    One commenter (Ex. 16) expressed concern that the language, 
``requirements * * * applicable to the hazards identified for the 
workplace'' in supplemental proposed section 851.4(c) was confusing. 
The commenter noted that the standards incorporated into Subpart C 
already included a clear statement of scope and questioned whether the 
statement in supplemental proposed section 851.4(c) referred to these 
scope statements or to some other different scope determinations, such 
as an agreed-upon set of Work Smart Standards. DOE intends for this 
phrase--revised in section 851.10(b)(1) of the final rule to read, 
``applicable to the hazards associated with the contractor's scope of 
work''--to refer to the individual scope of the standard or regulation 
for those standards specified in the final rule section 851.23. In the 
case of the functional area requirements specified through final rule 
section 851.24, this phrase applies to the specific topic covered in 
the functional area (e.g., pressure safety requirements apply only to 
worksites with pressure hazards). All other provisions of final rule 
Subpart C apply to all work sites within the scope of the rule as 
specified in final rule section 851.1.
    Another commenter (Ex. 54) suggested that this section should 
require that contractors comply with provisions of the rule 
establishing worker rights to information. In response to this 
commenter's concern, DOE notes that final rule section 851.10(b) 
requires contractors to comply with the requirements of Subpart C of 
the rule. Worker rights provisions are established in Subpart C and 
thus are included in this broad requirement. To further address this 
comment, DOE also added final rule section 851.20(a) to clarify 
management responsibilities and ensure worker rights.
    The same commenter (Ex. 54) also suggested that the ``General 
Requirements'' section of the rule should include requirements to post 
appeals, variance requests, orders and all communications between the 
employer and DOE. DOE notes that requirements (1) a requirement to post 
compliance orders is established in final rule section 851.4(d); (2) 
requirements

[[Page 6880]]

to post and inform employees of variance requests are addressed in 
final rule sections 851.31, 851.32, and 851.33; and (3) management 
requirements regarding health and safety related information and 
communication with workers are established in 851.20(a). The rule does 
not establish a requirement to post appeals.
    One commenter (Ex. 49) stated that the supplemental proposed 
requirement to identify and document situations for which an exemption 
is needed within the worker safety and health program in addition to 
identifying and documenting the same situations through the exemption 
process represented an unnecessary duplication of effort which should 
be eliminated. DOE agrees and has removed this provision from the final 
rule.
    Several commenters (Exs. 16, 39, 42, 45, 51) sought clarification 
on the tailoring of worker safety and health requirements required by 
supplemental proposed section 851.100(b)(3). One commenter (Ex. 16) 
suggested it was impractical for the rule to invoke specific 
requirements (in Subpart C) and then specify that implementation of the 
specific requirements was to be tailored. The commenter pointed out 
that the specific requirements were either met or not met. The 
commenter also alluded to a potential conflict: other provisions 
implied that formal exemptions were needed for deviations from specific 
requirements of Subpart C (tailoring was included in the special 
circumstances for exemption criteria in supplemental proposed section 
851.301). The commenter recommended that much of the required 
flexibility/tailoring could be built into the safety and health 
requirements themselves. Two other commenters (Exs. 45, 51) requested 
clarification on the intent and application of the tailoring with 
respect to enforcement actions for non-compliances. Another commenter 
(Ex. 42) requested that DOE provide specific criteria to determine what 
would constitute effective implementation of tailored worker safety and 
health requirements in supplemental proposed section 851.100(b)(3). One 
last commenter (Ex. 39) suggested that the actual level of safety 
protection (e.g., fire protection) be specified by DOE at the start of 
a contract, not refined through the exemption process by the contractor 
well into the contract. In response to these concerns, DOE has modified 
the language in the final rule to eliminate the requirement for 
tailoring of worker safety and health programs in Subpart B. In 
addition, the variance process described in Subpart D of the rule no 
longer includes tailoring a requirement as a rationale for a variance.
    Section 850.10(b)(2) specifies that the written program must comply 
with any compliance order issued by the Secretary pursuant to section 
851.4. One commenter (Ex. 16) objected to previous wording requiring 
that contractors comply with compliance orders that are ``applicable to 
the workplace'' and questioned why DOE would issue a compliance order 
under this rule that is not applicable to the workplace. DOE 
acknowledges the validity of the observation and has removed the phrase 
``applicable to the workplace'' from the corresponding provision in 
final rule section 851.10(b)(2).
Section 851.11--Development and approval of worker safety and health 
program
    Section 850.11 establishes the procedures for the development and 
approval of the worker safety and health program. One commenter (Ex. 
27) expressed concern that vague language in the supplemental proposal 
did not lend itself to an enforceable rule. The commenter pointed to 
the provision of supplemental proposed section 851.101(a)(2)(ii) 
requiring contractors to ``ensure worker safety and health programs are 
integrated and consistent'' as an example to illustrates this point. 
DOE acknowledges the commenter's concern and has made every attempt to 
eliminate vague language from the final rule. However, DOE has retained 
certain commonly understood words and terms in order to allow 
interpretive latitude to suit differing situations of different DOE 
contractors.
    One commenter (Ex. 47) stated that the establishment of standards, 
such as the OSHA standards, based on well-defined Federal regulations 
was preferable to the approved safety and health program approach 
proposed in the rule. The commenter noted that the OSHA approach takes 
advantage of over 30 years of workplace safety and health and reflects 
responses to hazards found in general industry. The commenter believed 
such an approach would also promote consistency across the DOE complex 
as well as accountability for specific compliance requirements. DOE 
acknowledges that there are some advantages to having a single set of 
regulations applicable to all DOE contractors. Nevertheless, there are 
offsetting disadvantages to having a ``one-size-fits all'' approach. 
DOE believes that the approach adopted in the final rule that includes 
both requirements of general applicability, supplemented by additional 
requirements tailored to the specific needs and concerns of a specific 
contractor is the superior approach to providing the optimal level of 
worker safety and health.
    DOE received numerous comments on perceived increased costs and 
administrative burden that would result from establishing written 
worker and safety health programs. The majority of the commenters (Exs. 
3, 4, 16, 19, 25, 31, 37, 38, 42, 47, 48, 49, 57) expressed concern 
that the requirements to develop a new discrete written program; 
integrate and implement that program on the worksite; and maintain, 
update, and regularly audit the program would result in significantly 
increased costs and administrative burden. Two commenters (Exs. 31, 48) 
specifically requested that these impacts be considered prior to 
codification. Several commenters (Exs. 3, 4, 37, 42, 47, 49) suggested 
that approval of the program should be sufficient to meet the intent of 
the rule without further requirements to maintain, update, and audit 
the program. Two commenters (Exs. 19, 57) favored elimination of these 
requirements from the rule altogether. Another commenter (Ex. 38) 
argued that these requirements were redundant, duplicating DOE's 
existing review and approval of contractors' environment, safety, and 
health activities like the Work Smart set. DOE agrees and has provided 
in final rule section 851.13 that in the event a contractor has 
established a written safety and health program, an Integrated Safety 
Management System (ISM) description pursuant to the DEAR Clause, or an 
approved Work Smart Standards (WSS) process before date of issuance of 
final rule, the contractor may continue to use that program, 
description, or process as the required worker safety and health 
program if the appropriate Head of the DOE Field Element approves such 
use on the basis of written documentation provided by the contractor 
that identifies the specific portions of the program, description, or 
process, including any additional requirements or implementation 
methods to be added to existing program, description, or process, that 
satisfy the requirements and that provide a workplace as safe and 
healthful as those required by the final rule requirements.
    Several commenters (Exs. 39, 45, 51) stated that processes 
described in supplemental proposed section 851.101 represented an 
expansion of the scope of contractor obligations compared to current 
DOE contractual requirements and orders. A few commenters (Ex. 36, 39, 
42) expressed concern that development of the worker safety and health 
plan and delays in waiting for

[[Page 6881]]

approval would result in increased costs. Several other commenters 
(Exs. 28, 37, 45, 49, 51) concurred and sought clarification from DOE 
on whether costs incurred by contractors and subcontractors in 
developing and implementing the DOE-approved worker safety and health 
program were allowable in accordance with FAR Part 31 and DOE 
Acquisition Regulation Subpart 931 principles. Costs of compliance with 
Part 851 are usually going to be allowable costs under the contract 
under FAR Part 31 and DEAR Part 970.31. Contractor costs in developing 
and implementing a DOE-approved worker safety and health program are 
routine costs that are typically allowable. An exception to cost 
allowability might exist, however, if the action or inaction of 
contractor managerial personnel is the original cause of the non-
compliance, particularly if the non-compliance violates an approved 
integrated safety management system.
    One commenter (Ex. 51) voiced the concern that the worker safety 
and health rule would require documentation and implementation 
strategies separate from those for DOE Order 440.1A and the Integrated 
Safety Management (ISM) Program. In response, DOE notes that the final 
rule is based on DOE Order 440.1A and replaces Attachment 2, 
``Contractor Requirements Document of the order. In addition, final 
rule section 851.11(a)(3) requires that the written program describe 
how the contractor will integrate all requirements of Part 851 with 
other related site-specific worker protection activity and with the 
Integrated Safety Management Systems (ISMS). Section 851.13(b) of the 
rule clarifies that contractors who have implemented a written worker 
safety and health program, ISM description, or Work Smart Standards 
process prior to the effective date of the final rule may continue to 
implement that program/system so long as it satisfies the requirements 
of Part 851. Hence, DOE believes that the integration of these existing 
programs with the worker safety and health program will eliminate any 
duplication of effort and limit any additional burden associated with 
the rule.
    Section 850.11(a) requires contractors to prepare and submit a 
worker safety and health program that provides methods for implementing 
the requirements of Subpart C to the appropriate Head of DOE Field 
Element for approval within 380 days publication of the final rule in 
the Federal Register, February 26, 2007. Some commenters (Exs. 5, 13, 
19, 38, 57) took issue with the need to prepare, submit, and obtain DOE 
approval of the written safety and health program. Three of these 
commenters (Exs. 19, 38, 57) asserted that the requirements for 
submittal, review, and approval of worker safety and health programs 
were not necessary to allow DOE to meet its statutory obligation under 
section 3173 of the National Defense Authorization Act (NDAA). One 
commenter (Ex. 5) suggested that the imposition of core requirements in 
supplemental proposed sections 851.10 and 851.100 should preclude the 
need for DOE to approve worker safety and health plans and supported 
simply adding the rule to the DOE list of applicable standards provided 
in management and operating contracts and other DOE contracts. Another 
commenter (Ex. 13) recommended that these provisions be revised to 
allow the worker safety and health program to be written as an overview 
or roadmap document, illustrating the integration of current 
infrastructure documents (previously created under DOE Orders 440.1A 
and 420 and DOE Notice 450.7). This commenter suggested that the level 
of oversight DOE already maintains over programs under existing 
contract structures justifies the submission of merely the overview 
document, without any of the supporting safety management program 
documents. DOE believes that the provisions for submission, review and 
approval of the written safety and health program plans are necessary 
to permit the Department to meet its responsibilities under section 
3173 of the NDAA and the AEA to ensure a safe and healthful workplace. 
DOE further notes that the process strikes an appropriate balance 
between allowing contractors and workers to have input into the 
requirements, while recognizing that DOE management must be satisfied 
with their implementation. These programs will also be useful to DOE's 
enforcement office to evaluate compliance with the rule. Further, the 
final rule recognizes that programs are already in place and are 
consistent with the existing mechanism for the submission and approval 
of worker safety and health plans under Part 851.
    DOE received numerous comments on the proposed time schedule for 
submission of worker safety and health programs by contractors. The 
general concern expressed by the commenters (Exs. 3, 4, 5, 16, 28, 29, 
31, 35, 36, 39, 42, 47, 51, 57) was that the supplemental proposed 
section 851.101(a) requirement allowed insufficient time for an 
adequate submission of the written worker safety and health programs by 
the July 25, 2005, due date. The commenters also generally recommended 
modification of the due date depending on the date of issuance of the 
final rule. Many commenters (Exs. 13, 28, 29, 31, 33, 37, 45, 47, 49, 
51, 57) offered various suggestions for the time contractors would need 
to prepare and submit the written worker safety and health program, 
ranging anywhere from 90 days to 12 months after publication of the 
final rule in the Federal Register. DOE acknowledges the validity of 
the commenters' concerns regarding the specific date published in the 
supplemental proposal and has modified the corresponding final rule 
section 851.11(a) to require contractors to prepare and submit the 
worker safety and health program within 380 days after the date of 
publication of the final rule in the Federal Register. In selecting 
this date, DOE took into account that the NDAA prohibits the rule from 
becoming effective until twelve (12) months after issuance. DOE expects 
contractors to begin work on their worker safety and health program 
immediately upon publication of the final rule and to consult with DOE 
during the period before the rule becomes effective. Accordingly, DOE 
believes it is reasonable to require submission of the worker safety 
and health programs no later than 380 days after publication in the 
Federal Register. In a related matter, DOE believes it is reasonable to 
require contractors to be in compliance with their worker safety and 
health programs no later than 470 days after publication.
    DOE also received several questions and comments on contractor-
subcontractor obligations and relationships with respect to development 
of the worker safety and health program. Several commenters (Exs. 13, 
20, 28, 29) questioned whether subcontractors, vendors, and delivery 
contractors needed to submit their own worker safety and health 
programs or whether they were covered under the programs of their prime 
or management and operating contractors. One of these commenters (Ex. 
20) further questioned whether employees of a subcontractor with a 
worker safety and health program would be covered under the 
subcontractor's program or that of the prime management and operating 
contractor. DOE generally expects that contractors with primary 
responsibility will develop the health and safety programs and 
subcontractors will follow the programs pursuant to 851.11(a)(2) and 
(3). However, in some cases in which a subcontractor has primary 
responsibility, it may be necessary and

[[Page 6882]]

appropriate for them to provide a supplemental program. In situations 
involving such overlap, contractors need to coordinate so there are 
clear rules, responsibilities, and procedures that result in an 
integrated approach to worker safety and health. As discussed 
previously, vendors and delivery contractors are not contractors for 
purposes of the rule and in general, their employees are subject to 
programs developed by the contractor under OSHA's regulatory authority. 
Nevertheless, when employees of such vendors are on DOE sites, they 
will benefit from the requirements put in place under Part 851.
    With respect to changes in contractors due to contract competition, 
two commenters (Exs. 25, 27) voiced concern about the effects of a 
change in laboratory prime contractors and noted there was no provision 
in the proposed rule dealing with such an event. One of these 
commenters (Ex. 27) specifically suggested that given DOE's current 
approach of re-competing contracts, Subpart B of the rule should be 
modified to address potential changes in management and operating 
contractors--especially during the period between the effective date of 
the rule and the one year anniversary. Pursuant to the statutory 
requirements, the rule contemplates that a new contractor is required 
to submit and gain approval for its worker safety and health program. 
As a practical matter, if a prior contractor had a workable program, 
DOE expects that the new contractor's burden would be minimal because 
it could submit a similar program.
    Section 851.11(a)(1) describes contractor requirements in cases 
where a contractor is responsible for more than one covered workplace. 
Under such conditions, the rule requires the contractor to establish 
and maintain a single worker safety and health program for the covered 
workplaces for which the contractor is responsible. One commenter (Ex. 
5) expressed the opinion that this requirement contradicts the 
requirement for contractors to integrate health and safety programs 
with other site DOE contractors. The commenter suggested that one 
contractor should be responsible for the whole site, with all other 
users conforming to that contractor's worker safety and health program. 
DOE disagrees, given the complexity and diversity at some DOE sites, 
each contractor responsible for work at covered workplaces should 
coordinate with the other contractors to ensure that there are clear 
roles, responsibilities and procedures that will ensure the safety and 
health of workers at multi-contractor workplaces.
    Section 851.11(a)(2) describes contractor requirements if more than 
one contractor is responsible for a covered workplace. This section 
clarifies that in such cases, each contractor must establish and 
maintain a worker safety and health program to cover its activities and 
must coordinate with the other contractors responsible for work at the 
workplace to ensure that individual roles, responsibilities, and 
procedures are established to ensure worker safety and health at multi-
contractor workplaces.
    One commenter (Ex. 15) recommended that the terms ``integrated and 
consistent'' in supplemental proposed section 851.101(a)(2)(ii) be 
replaced with ``reflect a common approach and level of protection'' to 
allow greater latitude in situations where multiple contractors are 
responsible for different activities in a workplace. The commenter was 
of the opinion that this flexibility was essential to ensure a focus on 
safety instead of the administrative burden of integration of multiple 
prime contractors. DOE agrees with this commenter and has revised 
section 851.11(a)(2)(ii) of the final rule to require that contractors 
``coordinate with the other contractors responsible for work at the 
covered workplaces to ensure that there are clear roles, 
responsibilities, and procedures that will ensure the safety and health 
of workers at multi-contractor workplaces.''
    Several commenters (Exs. 13, 28, 45, 51) sought clarification on 
this provision, asking which contractor would be responsible for 
submission of the written worker safety and health program on multi-
contractor sites requiring integration and coordination. Three of these 
commenters (Exs. 28, 45, 51) recommended that each contractor must 
maintain a worker safety and health program for the workplaces for 
which each is responsible at a DOE site where multiple contractors are 
responsible for covered workplaces. DOE agrees with these three 
commenters that this was the intent of the supplemental proposal. DOE 
notes that the final rule in section 851.11(a)(2) requires each 
contractor with responsibility for a covered workplace to establish and 
maintain a worker safety and health program for the workplaces for 
which they are responsible. Hence, at multi-contractor sites, each 
contractor is responsible for submitting its own worker safety and 
health program for the covered workplaces for which it is responsible.
    Some commenters raised concerns about site responsibility issues at 
multi-contractor sites. Two commenters (Exs. 3, 4) asserted that the 
stipulation that there may be more than one contractor responsible for 
a covered workplace contradicts other provisions of the rule and will 
lead to confusion in application. Two other commenters (Exs. 29, 49) 
questioned whether the management and operating contractor at any given 
work place would have any oversight, reporting, or other responsibility 
for work conducted at that site by another organization under direct 
contract to DOE. Another (Ex. 40) sought clarification of the issue of 
decentralized vs. centralized responsibility on DOE work sites and DOE 
assignment of contractor responsibilities for health and safety 
requirements (e.g., traffic safety) across entire DOE sites. To address 
these concerns, DOE expects to publish enforcement guidance supplements 
(EGSs) as discussed in the section-by-section discussion for Subpart E 
to describe DOE's planned enforcement approach on multi-employer sites. 
DOE will base these EGSs on similar OSHA multi-employer worksite 
enforcement policies implemented in private industry.
    DOE received numerous comments on the subject of consistency of 
worker safety and health programs on multi-employer worksites. The main 
issues of concern included establishing a basis for ensuring 
consistency and the lack of contractual and legal relationships between 
contractors. The main recommendations offered to DOE by commenters in 
resolving these concerns were for DOE to act as the coordinating 
authority and for DOE to review and make use of the OSHA Multi-Employer 
Policy in the DOE rule. Each of these issues is discussed in more 
detail below.
    With respect to establishing a basis for ensuring consistency of 
worker safety and health programs on multi-employer work sites, one 
commenter (Ex. 45) expressed concern that the language in the proposed 
rule was subjective, lacked measurement, and was an expectation, not an 
enforceable requirement. The commenter was of the opinion that 
consistency should arise from the workforce and be handled in good 
faith by employers. The commenter further remarked that invoking 
consistency on multi-employer worksites through enforcement of a 
standard left the employer at risk for compromising their safety 
program and made DOE responsible for the success or failure of 
implementation and performance.
    Several other commenters (Exs. 16, 39, 47, 48, 49, 58) raised the 
issue of the

[[Page 6883]]

inherent difficulty in coordinating and integrating worker safety and 
health plans at multi-employer sites due to lack of contractual 
relationships between contractors or the legal authority to modify 
another contractor's program. The same commenters (Exs. 16, 39, 47, 48, 
49, 58) recommended that the coordination, accountability, and 
authority for various worker safety and health plans among multiple 
contractors on a site should rest with DOE since DOE directly contracts 
with these entities and maintains contractual authorities. 
Alternatively these commenters were in favor of deletion of this 
provision from the rule altogether. One commenter (Ex. 48) specifically 
requested definition of and guidelines for integration and consistency 
and suggested that the final rule establish who would determine when 
integration and consistency requirements were adequately met on multi-
employer sites.
    Other commenters (Exs. 49, 58) specifically recommended that issues 
such as those described in the preceding paragraphs would best be 
addressed through the application of OSHA's Interpretation of Multi-
Employer Worksite Citation Policy regarding creating, controlling, 
exposing, and correcting employers. As discussed elsewhere, DOE intends 
to prepare an enforcement guidance supplement that will provide 
guidance on multi-employer worksites that is consistent with current 
OSHA policy.
    One commenter (Ex. 39) felt that the requirement to coordinate 
programs with other contractors responsible for work on the covered 
workplace did not address the issue of application of worker safety and 
health requirements to private entities benefiting from reuse of former 
Federal facilities on DOE sites. For instance, the DOE site contractor 
may still provide emergency response and security services to the 
private entity, but the private entity would not be subject to the 
rule. The commenter sought clarification of how the emergency response 
and security personnel would be protected in such instances. In 
response, DOE notes that emergency response and security personnel 
would be covered by their respective worker safety and health program 
regardless of their location on a DOE site. In facilities leased to 
community reuse organizations and their tenants, safety and health 
provisions of the lease agreement would apply to the leasee.
    Two commenters (Exs. 31, 35) expressed concern about the potential 
conflict between the proposed rule's requirement to tailor the worker 
safety and health program and the need to integrate the contractor's 
worker safety and health programs at a DOE site. One commenter (Ex. 31) 
was of the opinion that the requirement for integration between 
contractors, which would intrinsically seek a majority consensus, was 
in conflict with the requirement to tailor the worker safety and health 
program to the work environment. The other commenter (Ex. 35) offered 
the observation that even though the purpose and basis of the worker 
safety and health programs of different contractors may be the same, 
the details of each worker safety and health program must be tailored 
to the specific work to ensure effective implementation. DOE recognizes 
that the proposed requirement to ``integrate'' worker safety and health 
programs created some confusion during the public comment period. As a 
result, the term has been removed from final rule section 
851.11(a)(2)(ii). This section now clarifies that contractors must 
coordinate with other contractors onsite to ensure clear delineation of 
roles, responsibilities, and procedures.
    DOE also received numerous comments that argued that the 
requirement for integration and coordination would result in increased 
costs and additional administrative burden. The commenters (Exs. 13, 
19, 31, 35, 36, 39, 42, 48) expressed concern that integration and 
coordination between different contractors on a DOE site would be 
costly and burdensome due to differing missions and management systems 
and complex inter-relationships. One commenter (Ex. 39) specifically 
requested that DOE modify standard contract terms to include the 
requirement to coordinate with other onsite contractors in order to 
allow contractors to be reimbursed for costs associated with the 
coordination activity. DOE disagrees that contract modifications are 
required since contractors on a site currently operate their worker 
safety and health programs with or without conflict. Conflicts are 
normally resolved when they occur. DOE expects that the level of 
adjustments needed to coordinate worker safety and health programs will 
be minimal and that wide-scale modifications will not be necessary.
    DOE received several comments on the issue of ensuring 
subcontractor compliance as required by supplemental proposed section 
851.100(b)(9). These commenters (Exs. 16, 28, 31) raised concerns 
regarding adequate means of enforcing compliance, potential increased 
costs, and accountability concerns. One commenter (Ex. 16) voiced the 
concern that flow-down requirements and monitoring and penalizing 
subcontractors for failure to comply were insufficient to ensure 
compliance. The commenter recommended that the rule section be 
``rewritten to include quantifiable intent.'' Two commenters (Exs. 28, 
31) asserted that the requirement for contractors to ensure 
subcontractor compliance would result in the need to re-negotiate legal 
contracts between prime contractors and subcontractors and lead to 
increased costs. As discussed above, DOE intends to address these 
questions in appropriate EGSs on multi-employer worksites consistent 
with current OSHA policy. However, DOE notes that all contractors, 
including subcontractors, are responsible for complying with Part 851 
to the extent they are responsible for a covered workplace.
    In another area related to subcontractor compliance, two commenters 
(Exs. 37, 47) were concerned that increased contractor oversight and 
the potential penalties would have a negative impact on subcontractors 
and could discourage some subcontractors from performing work on DOE 
sites. DOE is required by statute to implement a worker safety and 
health program that covers all contractors, including subcontractors.
    One commenter (Ex. 29) requested clarification that the need to 
coordinate and integrate programs applied only to multi-employer sites, 
not contractor/subcontractor relationships. This commenter argued that 
contractors should require subcontractors to conform to their programs. 
They should not be required to integrate their programs with their 
subcontractors'. DOE's intent with this provision is not to limit the 
contractor's contractual authority, but rather to ensure that safety 
and health program roles, responsibilities, and procedures are clearly 
understood by all contractors on a covered worksite. In fact, DOE 
recognizes that requiring subcontractors (through appropriate 
subcontract mechanisms) to conform to the contractor's safety and 
health program is an effective way to meet the intent of final rule 
section 851.11(a)(2)(ii).
    Section 851.11(a)(3) describes the required components of the 
contractor's worker safety and health program. Specifically the section 
requires that the program describe how the contractor will comply with 
the requirements of Subpart C of the final rule and how they will 
integrate these requirements with other related site-specific worker 
protection activities and with the ISMS.
    Several commenters (Exs. 13, 16, 25, 28, 35, 45, 51, 57) sought 
clarification on the nature and extent of the worker

[[Page 6884]]

safety and health program document and requested that DOE develop more 
detailed guidance on what constituted an acceptable worker safety and 
health program. Many of the same commenters (Exs. 27, 28, 35, 45) also 
questioned whether existing worker protection initiatives such as the 
ISM descriptions, Work Smart Standards, and ``B-List'' contract 
requirements could be used to fulfill new program requirements. Some 
were concerned with a potential duplication of effort and the resulting 
cost. One of these commenters (Ex. 28) specifically sought 
clarification on whether the new program was to be developed based on 
the outline in Subpart C and whether a collection of existing safety 
procedures, plans, guides, and manuals would be sufficient to meet the 
requirement. To address these concerns, final rule section 851.11(a)(3) 
requires the worker safety and health program to describe how the 
contractor will integrate the requirements of Subpart C of the rule 
with site-specific worker protection activities and with ISMS. Subpart 
C provides more detailed direction on the required content of the 
program. This required content is closely aligned with the program 
requirements of DOE Order 440.1A. In addition, final rule section 
851.13(b) allows contractors who have implemented a written worker 
safety and health program, an ISM description (pursuant to the DEAR 
Clause), or a Work Smart Standard process prior to the issuance of the 
final rule, to continue to implement that program, description, or 
process so long as it satisfies the requirements of Part 851 and is 
approved by the appropriate Head of DOE Field Element. Further, the 
existing series of implementation guides developed to assist DOE 
contractors in implementing the provisions of DOE Order 440.1A also can 
assist in implementation of the rule. Shortly after publication of this 
rule, DOE anticipates publishing updated implementation guides revised 
to specifically address the provisions of the final rule.
    Section 851.11(b) of the final rule delineates the responsibilities 
of the Head of DOE Field Element with respect to evaluation and 
approval of worker safety and health programs within 90 days of receipt 
of a contractor submission. This provision further establishes that the 
worker safety and health program and any updates will be deemed 
approved 90 days after submission, if not specifically approved or 
rejected by DOE within the approval timeframe.
    One commenter (Ex. 49) sought clarification from DOE on the value 
of the formal worker safety and health program approval process. The 
commenter suggested that the requirements enforceable via the penalty 
process should be promulgated in the rule and other contractual 
requirements enforced via contractual mechanisms. The commenter also 
noted that each contractor's program would differ, which could lead to 
enforcement inconsistencies. DOE notes that the enabling legislation 
makes both civil and contract penalty options available to DOE. Civil 
penalties can be used only to enforce regulatory requirements. As 
discussed in connection with implementation, regulatory enforcement 
necessarily takes into account whether a contractor has undertaken 
necessary and sufficient actions to implement the requirements 
established by the rule.
    Two commenters (Exs. 5, 51) sought clarification on the reason for 
DOE approval of contractor worker safety and health programs. One 
commenter (Ex. 5) asserted that if DOE must approve all worker safety 
and health programs and supplemental proposed Subpart E provides that 
only a violation of 10 CFR 851 could result in an enforcement actions, 
then DOE would be liable if it approved a program that inappropriately 
excluded an element of the health and safety program. Another commenter 
(Ex. 51) did not agree that DOE approval of the health and safety plan 
was required, since DOE did not adopt responsibility or liability for 
the content of the plan but instead would force contractors to make 
changes to plans and field actions. The commenter suggested that 
submission of a comprehensive safety and health program should be 
sufficient and should include construction health and safety issues. 
The commenter also noted that DOE approval of lower-tier implementing 
documents should not be mandated or codified. DOE believes that 
approving worker safety and health plans is an essential element in 
carrying out its statutory responsibilities concerning worker safety 
and health. DOE notes the rule does not require approval of ``lower-
tier'' implementation decisions. As previously discussed, if these 
contractor decisions do not result in proper implementation of the 
rule, the contractor will be subject to enforcement actions, including 
the imposition of civil penalties.
    Two commenters (Exs. 13, 42) sought the inclusion of criteria in 
the rule for DOE review and approval of the written worker safety and 
health programs. These commenters felt that such criteria were needed 
to ensure consistent worker safety and health programs across the DOE 
complex, to ensure a consistent review and approval processes by DOE 
field offices, and to minimize the level of effort required to develop 
and obtain program approval. These commenters sought specific guidance 
on the DOE Field Office review and approval process; the criteria for 
determining the appropriate standards needed to achieve the required 
level of protection; and clarification regarding who had the burden of 
demonstrating ``equivalency.'' DOE notes that Subpart C of the final 
rule now provides more specific detail on the required content of the 
program. This detail is consistent with DOE Order 440.1A and, as a 
result, is familiar to DOE contractors. In addition, DOE will develop 
and publish appropriate implementation guidance to supplement these 
requirements and to assist DOE Head of Field Elements.
    One commenter (Ex. 48) sought clarification of the role of local 
DOE field offices in the approval and maintenance of the worker safety 
and health program. DOE has clarified this point in final rule section 
851.11(b), which states that the appropriate Head of DOE Field Element 
is responsible for review and approval of the submitted worker safety 
and health program. For further clarification, DOE has defined the term 
``Head of DOE Field Element,'' as used in this rule in final rule 
section 851.3.
    Several commenters (Exs. 13, 28, 29, 39, 45, 51) suggested that the 
submitted program should be considered approved if DOE does not act 
within the 90-day time frame allotted for approval, and the program 
should be implemented as submitted. One commenter (Ex. 13) specifically 
provided 10 CFR 830 as a model for language in this provision. This 
commenter noted that, according to 10 CFR 830, if DOE fails to approve 
or reject the required plan within the prescribed period, the existing 
plan is by default approved. Another commenter (Ex. 48) proposed an 
alternate time period for approval and suggested that plans should be 
considered approved by the Cognizant Secretarial Officer if they are 
not specifically rejected within 180 days of submission. A few 
commenters (Exs. 25, 29, 45, 48) raised the doubt that even if a 
contractor submitted a worker safety and health program on schedule, 
any inability of DOE to approve the program could translate to a site 
or laboratory being completely shut down which in turn would place a 
significant risk upon the contractors. In response to these comments 
DOE has modified the final rule to clarify in section 851.11(b) that 
worker safety and health programs will deemed approved 90 days after

[[Page 6885]]

submission if not specifically approved or rejected by the appropriate 
Head of DOE Field Element.
    One commenter (Ex. 5) expressed concern that if DOE required 
approvals and annual updates to the worker safety and health program, 
then the Voluntary Protection Program (VPP) should be eliminated since 
there would be no voluntary portion of the safety and health program. 
DOE disagrees with the commenter. The DOE VPP status requires 
contractors to go beyond simply complying with the requirements of this 
rule. VPP promotes effective, comprehensive worksite safety and health 
and encourages employers to perfect existing programs (continuous 
improvement). In the VPP, management, labor, and DOE establish 
cooperative relationships at workplaces that have implemented a 
comprehensive safety and health management system. Approval into VPP is 
DOE's official recognition of the outstanding efforts of employers and 
employees who have achieved exemplary occupational safety and health 
programs.
    Yet another commenter (Ex. 37) questioned how the prime contractor 
would obtain timely DOE approval of changes to the worker safety and 
health program when unforeseen emergencies were involved. The commenter 
referred to the aging infrastructure of some DOE facilities, which may 
necessitate emergency repairs to utilities and immediate mitigation 
under direct onsite safety coordination without the luxury of written 
safety planning. In response to this concern, DOE notes that the intent 
of its program is to establish implementation procedures for 
identifying and controlling hazards. The program itself does not list 
of all hazards with control mechanisms for each hazard. Therefore, the 
program does not need to be updated each time a new hazard is 
identified; rather, it must be updated only when a new process is added 
or a different type of hazard is introduced (or another significant 
change occurs) that is not effectively addressed through the procedures 
established in the program.
    Section 851.11(b)(1) of the final rule stipulates that beginning 
one year after the date of publication of the final rule, no work may 
be performed at a covered workplace unless an approved worker safety 
and health plan program is in place for the workplace. DOE received 
numerous comments about work stoppage on sites due to lack of approval 
of worker safety and health programs. Two commenters (Ex. 5, 29) 
questioned if the ``entire contractor work ceases'' if DOE does not 
approve a contractor's worker safety and health program. One of these 
commenters (Ex. 5) sought clarification of what would occur while 
approvals were pending. The rule makes it clear that a contractor 
cannot proceed, if it has not obtained approval for its program. This 
is necessary to ensure workplace safety and health. Nevertheless, to 
decrease any unreasonable burden, the rule provides transition for 
existing programs.
    Several commenters (Exs. 33, 39, 38, 47, 57) expressed concern that 
the proposed requirement for a complete work stoppage on sites due to a 
lack of an approved worker safety and health program failed to take 
several important issues into consideration. Two of these commenters 
(Exs. 38, 57) asserted that a complete work stoppage would be an 
untoward response to a limited set of pending issues requiring 
resolution (such as an application for an exemption) prior to program 
approval. These commenters felt that the supplemental proposal ignored 
the need to continue certain site activities to ensure that facilities 
and equipment were maintained in a safe configuration. The same 
commenters also noted that complete work stoppage would give rise to 
shutdown, maintenance, and startup costs, with no benefit to DOE or the 
workers. Two commenters (Exs. 38, 47) recommended substituting a more 
reasonable and graded approach for the proposed ban on all work 
activities should the provision be maintained. DOE has carefully 
considered these comments, but has not revised this provision of the 
rule. Contractors should already have a worker safety and health 
program in place under existing contract requirements. DOE believes 
that 470 days is sufficient for contractors to come into compliance 
with the rule, including adjusting their existing programs if needed.
    A few commenters (Exs. 33, 39, 45, 47) expressed the concern that 
this provision of the rule fails to acknowledge that many sites have 
approved ISM, Voluntary Protection Program, and human performance 
programs already in place that meet or exceed DOE requirements for 
worker protection. The commenters recommended that a mechanism for 
approving programs that have undergone ISM verification should be 
included in the rule. DOE agrees with these commenters and has 
clarified in final rule section 851.13(b) that contractors who have 
implemented a written worker safety and health program or ISM 
description or Work Smart Standard process prior to the effective date 
of the final rule may continue to implement that program/system so long 
as it satisfies the requirements of Part 851 and is approved by the 
appropriate Head of DOE Field Element.
    One commenter (Ex. 37) suggested that provision should be made in 
the rule to give contractors more time if their worker safety and 
health program approvals were delayed due to a DOE backlog in granting 
exemptions. This commenter felt that supplemental proposed section 
851.100(b)(5) required approved exemptions as a component of the worker 
safety and health program. The commenter questioned how Congress would 
respond to a facility shutdown even though the facility was in full 
compliance with all standards existing when the 2002 legislation was 
passed. DOE does not intend for program approval to be contingent upon 
approval of variances. To clarify this point, DOE has removed the 
provision of the supplemental proposal that required that contractors 
identify conditions that require an exemption in the program. Further, 
as discussed in detail in the section-by-section discussion of Subpart 
D, DOE does not anticipate that a large number of variances will be 
requested under this rule.
    Some commenters (Exs. 6, 29, 31) questioned whether EH had the 
resources to review and concur or comment on contractor programs from 
across the DOE complex in time to preclude work stoppage. One commenter 
(Ex. 29) requested that the Cognizant Secretarial Officer (CSO) 
approval process be detailed in the rule, and questioned whether there 
would be onsite review and validation by an external DOE team similar 
to the ISM verification process. This commenter also questioned how the 
contractor would be notified if the Cognizant Secretarial Officer 
delegated approval authority to the Site Manager. DOE acknowledges 
these concerns and has streamlined the approval process in the final 
rule. Specifically, final rule section 851.11(b) establishes the Head 
of DOE Field Element as the approval authority for worker safety and 
health programs. The rule no longer requires review and consultation by 
the Assistant Secretary for Environment, Safety and Health, nor does it 
provide for delegation of approval authority; however, contractors must 
send copies of their approved programs to the Assistant Secretary under 
final rule section 851.11(b)(2). DOE does not envision the use of 
external DOE onsite review and validation teams as part of the program 
approval process. As discussed in the section-by-section discussion for 
Subpart E, DOE will use onsite inspections as a tool to verify program

[[Page 6886]]

implementation and compliance with other provisions of the rule.
    Many commenters (Exs. 28, 39, 45, 51) sought clarification on the 
specific contract provision DOE expects to use to direct a contractor 
to stop work, pointing out that a contractor may not stop performance 
on a contract without direction from the DOE contracting officer per 
DEAR 970.5204-2(g). DOE notes that the stop work authority in the 
regulation is independent from the contract's provisions. Compliance 
orders by the Secretary represent an exercise of AEA authority, while 
stop work authority in subpart C is a regulatory mechanism.
    Section 851.11(b)(2) of the final rule describes contractor 
responsibilities with respect to distribution of the approved worker 
safety and health program to the DOE Assistant Secretary for 
Environment, Safety and Health. As discussed above, this provision 
replaces the proposed rule's provision requiring the Assistant 
Secretary's consultation during the program approval process.
    Section 851.11(b)(3) of the final rule describes contractor 
responsibilities with respect to distribution of the approved worker 
safety and health program to affected workers or their designated 
worker representatives upon written request. DOE's intent with this 
requirement is to facilitate implementation and enforcement of the 
rule. In addition, this section ensures that workers and their 
representatives have access to information related to the protection of 
their health during the performance of DOE activities. DOE added this 
provision to the final rule in response to commenters' requests to 
clarify the management responsibilities and worker rights specified in 
final rule section 851.20. These commenters' concerns are discussed in 
greater detail in the section-by-section discussion for final rule 
section 851.20.
    Section 851.11(c)(1) of the final rule describes contractor 
requirements for submission of periodic updates to the worker safety 
and health program to the Head of DOE Field Element for review and 
approval whenever a significant change or addition to the program is 
made or a change in contractors occurs.
    One commenter (Ex. 29) requested clarification of what would 
constitute ``significant changes or additions'' to the worker safety 
and health program. The commenter inquired whether worker safety and 
health programs had to be submitted if significant changes occurred 
before the annual review cycle. In response, DOE notes that these terms 
are subjectively applied in determining if an update to the program is 
needed. DOE does not envision a ``cookbook'' list of changes that would 
automatically trigger a program update. Rather, DOE intends for 
contractors to consider work-site or process changes in light of their 
current programs and determine if their programs effectively address 
the change. If the answer is no, then the change would be considered 
``significant'' and thus necessitate an update to the program.
    DOE received numerous comments on the supplemental proposal 
requirement for triennial (36-month) internal audits of the worker 
safety and health program. One commenter (Ex. 30) supported the 
provision but noted that the results should also be transmitted to 
employees and their representatives. The majority of the commenters 
(Exs. 5, 13, 16, 28, 29, 31, 35, 36, 39, 42, 48, 49), however, 
disagreed strongly with the need for this requirement citing reasons 
ranging from a lack of a clear specification of the required scope of 
the audit to concerns regarding administrative burdens and increased 
costs. DOE has considered and agrees with many of these concerns; 
accordingly, DOE has deleted the provision requiring 36-month internal 
audits and audit report submission from the final rule.
    Section 851.11(c)(2) of the final rule describes contractor 
requirements for annual submission of updates to the worker safety and 
health program or, alternatively, a letter stating no changes are 
necessary in the currently approved program. One commenter (Ex. 49) 
recommended that the requirement for an annual submission be eliminated 
from the rule. The commenter argued that once a worker safety and 
health program is developed, there should be no requirement to submit 
an annual update. The commenter also felt this requirement was 
inconsistent with 10 CFR 835, which only requires DOE approval of the 
Radiation Protection Program if changes decrease the effectiveness of 
the program. The commenter asserted this requirement appeared to be a 
purely paperwork requirement, which added no safety and health benefit 
to the process. DOE does not agree with this comment. The scope of the 
radiological work environment is very specific and controls are well-
defined. On the other hand, the non-radiological work environment is 
transitory in nature and covers a wide range and large number of 
hazards. For this reason, DOE contractors must annually assess the 
nature of the workplace and the effectiveness of their programs. Two 
other commenters (Exs. 3, 4) asserted that the requirement for annual 
evaluation and updating of the worker safety and health program was 
inconsistent with practices in general industry. DOE disagrees with 
these commenters and points out that while there is no standard that 
requires private sector employers to update their safety and health 
programs annually, it is a common practice among responsible employers 
and is consistent with the protection DOE wants to afford its 
contractor employees.
    One commenter (Ex. 29) requested clarification on whether the 
annual submittal was based on the calendar or fiscal year. Unless 
otherwise specified, annual updates should coincide with the 
anniversary date of the initial approval. This will alleviate having 
all updates being submitted at the same time.
    Two commenters (Exs. 36, 42) sought clarification of whether the 
rule required DOE approval of the annual submission and if so, within 
what time periods. The commenters expressed concern that the 
requirement for annual approval could result in work stoppages as 
contractors wait for approvals. One of these commenters (Ex. 36) 
proposed that the rule should require DOE approval within 30 days after 
contractor submittal. Under 851.11(b) of the final rule, any updates 
must be approved 90 days after submission. Until the updates are 
approved, a contractor should continue to operate under its prior plan.
    Several commenters (Exs. 19, 31, 36, 39, 42, 48) expressed concern 
that additional substantial costs would be associated with meeting the 
requirement for annual reviews. These commenters recommended that 
impacts be considered prior to codification. DOE prepared an Economic 
Analysis for the final rule. The analysis was conducted at 8 DOE sites 
(representatives of each type facility) and based its cost estimation 
methodology on a comparison of the requirements of this Part (10 CFR 
851) with DOE Order 440.1A. Overall, the bulk of these costs are 
attributable to requirements for converting medical records to 
electronic format, the compiling and submitting of written safety and 
health plans, and the submission of annual updates. Several sites 
indicated substantial costs for maintenance of complete and accurate 
hazard and exposure information, for communication of safety 
information to labor unions, and for implementation of the electrical 
safety program. It is estimated that the annualized costs for 25 DOE 
contractor sites to comply with the final rule are, therefore, likely 
to fall in the range between $9.7 million (low estimate) to $24.8 
million (high estimate). Other commenters (Exs. 5, 45, 51) proposed use 
of the Voluntary Protection Program Star site annual report and ISM 
annual self-evaluations

[[Page 6887]]

to meet the requirement for annual evaluations. The commenters also 
proposed integration of the submissions associated with the worker 
safety and health program proposed in this rule with the requirements 
of these other programs in order to reduce costs. DOE notes that a 
contactor may use these programs if they meet the requirements of this 
rule, and are approved by the Head of DOE Field Element.
    Section 851.11(c)(3) of the final rule describes contractor 
requirements for incorporating changes, conditions, or standards into 
the worker safety and health program as directed by DOE. Two commenters 
(Exs. 15, 27) suggested that to ensure consistency between this 
provision and existing DEAR clauses and contract terms and conditions, 
the following language should be added to the final rule: ``* * * 
consistent with DEAR 970.5204-2, Laws, Regulations and DOE Directives 
(December, 2000) and associated contract clauses.'' Similarly, other 
commenters (Exs. 16, 36, 42, 49) questioned the appropriateness of this 
provision in a regulatory enforcement document. DOE notes that Part 851 
establishes regulatory requirements and is independent of any 
contractual requirements. Accordingly, the obligation of a contractor 
to implement the regulatory requirements in Part 851 is not dependent 
on the existence of a contractual obligation. In response to the 
comments, DOE has modified final rule section 851.11(c)(3) to make it 
clear that any contractual action directed by the Department must be 
consistent with these regulatory requirements.
    A few commenters (Exs. 16, 42, 48) sought clarification of how the 
potential changes envisioned in this section of the rule would be 
directed. One commenter (Ex. 42) recommended that changes to the worker 
safety and health program plan be agreed to by both the contractor and 
DOE. Another commenter (Ex. 48) questioned whether only the Cognizant 
Secretarial Officer would be authorized to direct the incorporation of 
standards into the contractor's worker safety and health program. A 
third commenter (Ex. 16) sought clarification of whether DOE direction 
would emanate from the same organizational level that is specified for 
approval of exemptions. DOE acknowledges these concerns and clarifies 
its intent with the provision under final rule section 851.11(c)(3) 
that the Head of the DOE Field Element will direct the incorporation of 
changes into contractors' worker safety and health programs consistent 
with the approval authority established in section 851.11.
    Section 851.11(d) of the final rule requires the contractor to 
notify any associated labor organizations of the development and 
implementation of the worker safety and health plan and updates and, 
upon request, bargain with the labor organizations on implementation of 
Part 851 in a manner consistent with Federal labor laws. This section 
is included to ensure that worker safety and health programs are 
developed and implemented consistent with the requirements imposed by 
the National Labor Relations Act (NLRA) on employers in this context, 
and not to create obligations in excess of those that would be found in 
such circumstances under the NLRA.
    DOE included this provision in the final rule in response to 
concerns raised about the need for involvement of workers or worker 
representatives in the development and implementation of contractor 
worker safety and health programs. Specifically, one commenter (Ex. 54) 
expressed concern that supplemental proposed section 851.101 did not 
include the means for workers or their representatives to be involved 
in the development of worker safety and health programs. The means for 
workers or their representatives to be involved in the development and 
implementation of the worker safety and health programs are noted in 
the following sections.
Section 851.12--Implementation
    Section 850.12(a) of the final rule requires contractors to 
implement the requirements of Part 851. Three commenters (Exs. 28, 45, 
51) suggested that the worker safety and health program should include 
an implementation schedule, since all activities required by the 
program cannot be implemented upon approval--especially with respect to 
subcontractor implementation of the contractor's approved program. In 
response to the commenters' concern, DOE notes that final rule section 
851.11(a) requires contractors to submit the worker safety and health 
program for approval within 380 days of the final publication date of 
the rule; final rule section 851.11(b) ensures DOE approval of the plan 
within 90 days of receipt of the contractor's submission; and final 
rule section 851.13(a) allows contractors to achieve compliance with 
the approved worker safety and health program within 470 days of the 
publication date of the rule. DOE believes this implementation schedule 
provides sufficient time for contractors to achieve compliance with the 
final rule requirements, particularly since the rule closely mirrors 
DOE Order 440.1A, an order that has been in place for over a decade, 
and contractors are familiar with its requirements.
    One commenter (Ex. 42) suggested that any DOE implementation 
guidance to be developed for the rule should only be enforceable if a 
contractor elects to place those requirements in the worker safety and 
health program plan submitted to DOE. DOE agrees with this suggestion 
and confirms that worker safety and health guidance materials would 
only be enforceable against a DOE contractor if included in the 
contractor's approved program. DOE notes that a guidance document is 
intended to be informative but not mandatory. However, while a 
contractor need not follow the approach in a guidance document, the 
contractor does have an obligation to regulatory requirements in the 
rule and the worker safety and health programs approved by DOE by 
taking actions that are necessary and sufficient to achieve full 
compliance. Failure to take such action could be grounds for an 
enforcement action.
    Section 851.12(b) of the final rule further notes that nothing in 
Part 851 precludes contractors from taking additional protective action 
determined necessary to protect the safety and health of workers. This 
section recognizes that, depending on the circumstances of the work, 
responsible employers may have to take other actions to protect their 
workers. DOE does not intend to preclude such actions by the provisions 
of the rule. DOE recognizes that individuals responsible for 
implementing worker safety and health must use their professional 
judgment in protecting the safety and health of workers; nothing in the 
rule should be viewed as relieving these individuals of their 
professional responsibility to take whatever actions are warranted to 
protect the health and safety of the workforce.
Section 851.13--Compliance
    Section 850.13(a) of the final rule requires contractors to achieve 
compliance with all requirements of Subpart C of Part 851 and their 
approved worker safety and health programs no later than 470 days after 
the date of publication of the final rule in the Federal Register.
    Several commenters expressed concern over the supplemental proposal 
requirement for compliance with the rule by January 26, 2006, 
suggesting that the date be modified (Exs. 13, 25, 29, 36, 42, 45, 51, 
57) and recommending alternate lengths of time for implementation from 
180 days after plan approval (Ex. 47) to one year following rule 
promulgation (Exs. 28, 49). DOE has clarified in final rule section 
851.13(a) that contractors must

[[Page 6888]]

achieve compliance within 470 days after the date of publication of the 
rule.
    Section 850.13(b) of the final rule allows contractors who have 
established written worker safety and health programs, ISM descriptions 
pursuant to the DEAR Clause, or an approved Work Smart Standards 
process before the date of issuance of the final rule to use them to 
meet the worker safety and health program requirement of this part if 
those programs, descriptions, and processes are approved by the Head of 
the DOE Field Element. This approval by the Head of the DOE Field 
Element is contingent upon the contractor providing written 
documentation which identifies the specific portions of these programs, 
descriptions, and processes that are applicable, and additional 
requirements or implementation methods to be added in order to satisfy 
the requirements of this Part to establish a safe and healthful 
workplace. If an existing program is used to meet the requirement for a 
worker safety and health program, the contractor has a regulatory 
obligation to comply with that program.
    One commenter (Ex. 27) requested that a grandfather provision be 
added for existing programs developed under the Work Smart Standards 
program. DOE notes that a grandfather provision for existing programs 
is established under final rule section 851.13(b). This provision was 
added to address comments (Exs. 15, 20, 26, 27, 29, 45, 51) regarding 
DOE's intent to acknowledge or accept contractor efforts related to 
existing worker protection initiatives within the DOE community as part 
of the worker safety and health program required under this rule.

C. Subpart C--Specific Program Requirements

Section 851.20--Management Responsibilities and Workers Rights and 
Responsibilities
    Section 851.20 establishes management responsibilities and workers' 
rights related to worker safety and health in the workplace. Contractor 
managers must commit to the safety and health of their workforce. 
Section 851.20(a) codifies managers' responsibilities, while final rule 
section 851.20(b) codifies workers' rights. DOE received a substantial 
number of comments on section 851.20 (previously supplemental proposed 
section 851.10). Although many of the comments were couched in terms of 
workers' rights, a large proportion actually related to a combination 
of workers' rights and management responsibilities toward worker safety 
and health. Other comments touched on issues with broader implications 
that were applicable to this section, as well as to other requirements 
established elsewhere in this final rule (or other rules). 
Modifications made to section 851.20 in this final rule complicated 
categorization of the comments on a provision-by-provision basis. Thus, 
comments on this section are grouped by general topic or sentiment and 
are preceded by the following summary of both sections 851.20(a) and 
851.20(b) in the final rule.
    Section 851.20(a) requires a contractor to ensure its managers at a 
covered workplace (1) establish written policy, goals, and objectives 
for the worker safety and health program; (2) use qualified worker 
safety and health staff (e.g., a certified industrial hygienist) to 
direct and manage the program; (3) assign worker safety and health 
program responsibilities, evaluate personnel performance, and hold 
personnel accountable for worker safety and health performance; (4) 
provide a mechanism to involve workers and their elected 
representatives in the development of the worker safety and health 
program goals, objectives, and performance measurement and in the 
identification and control of hazards in the workplace; (5) provide 
workers with access to information relevant to the worker safety and 
health program; (6) establish procedures for workers to report, without 
reprisal, job-related fatalities, injuries, illnesses, incidents, and 
hazards and make recommendations about appropriate ways to control 
those hazards; (7) provide for prompt response to such reports and 
recommendations; (8) provide for regular communication with workers 
about workplace safety and health matters; (9) establish procedures to 
permit workers to stop work or decline to perform an assigned task 
because of a reasonable belief that the task poses an imminent risk in 
circumstances where there is insufficient time to use normal hazard 
reporting and abatement procedures; and (10) inform workers of their 
rights and responsibility by appropriate means, including posting the 
DOE-designated Worker Protection Poster.
    Workers at DOE sites currently have a number of rights related to 
ensuring a safe and healthful workplace as specified under DOE Order 
440.1A. Section 851.20(b) codifies these rights and makes it clear that 
workers may exercise them without fear of reprisal. Specifically, the 
regulations maintain the rights of workers to (1) participate in 
activities described in section 851.20 on official time; (2) have 
access to DOE safety and health publications; the DOE-approved worker 
safety and health program for the covered workplace; the standards, 
controls and procedures applicable to the covered workplace; the safety 
and health poster that informs the worker of relevant rights and 
responsibilities; recordkeeping logs (to a limited extent); and the 
appropriate DOE form that contains the employee's name as the injured 
or ill worker; (3) be notified when monitoring results indicate the 
worker was overexposed to hazardous materials; (4) observe monitoring 
or measuring of hazardous agents, and have the results of their own 
exposure monitoring; (5) have an employee-authorized representative 
accompany DOE personnel during an inspection of the workplace or 
consult directly with the DOE personnel if no representative is 
available; (6) request and receive results of inspections and accident 
investigations; (7) express concerns related to worker safety and 
health; (8) decline to perform an assigned task because of a reasonable 
belief that, under the circumstances, the task poses an imminent risk 
of death or serious bodily harm coupled with a reasonable belief that 
there is insufficient time to seek effective redress through the normal 
hazard reporting and abatement procedures; and (9) stop work on 
discovering employee exposures to imminently dangerous conditions or 
other serious hazards, provided that any stop work authority is 
exercised in a justifiable and responsible manner in accordance with 
established procedures.
    The comments provided to DOE on section 851.20 covered a wide range 
of issues. Most related directly to the management responsibility and 
workers' rights provisions of this section. Certain comments, however, 
related only tangentially to section 851.20 (usually on the basis of 
workers' rights) and sometimes resulted in modifications to other 
sections of this rule. For example, several commenters (Exs. 10, 30, 
40, 54, 55, 60) requested the incorporation of various worker rights 
related to the variance process. In general, DOE agrees that workers 
should be involved in the variance process and has included specific 
rights related to this process in subpart D to the final rule. A more 
detailed discussion of these comments and DOE's responses appears in 
the section-by-section discussion for Subpart D. Similarly, a commenter 
(Ex. 11) believed that worker rights should include the right to 
receive and participate in training required by OSHA standards and 
other requirements. The commenter expressed

[[Page 6889]]

concern that no provision exists in the rule to train workers in hazard 
recognition such that they can recognize hazards posing ``imminent risk 
of death or serious bodily harm.'' The final rule as specified in 
section 851.23 requires compliance with OSHA standards (including 
standards that specify training requirements). In addition, the final 
rule contains more detailed provisions for training, in final rule 
section 851.25, which requires employers to implement a training 
program for workers.
    The same commenter (Ex. 11) believed that worker rights should also 
include the right to contact the National Institute for Occupational 
Safety and Health (NIOSH) to request a health hazard evaluation (HHE) 
based on concerns about toxic effects of a workplace substance. DOE 
notes that 42 CFR 85 allows employers or authorized representatives of 
employees to request HHEs by NIOSH under section 20(a)(6) of the 
Occupational Safety and Health Act of 1970. Hence, DOE feels it is not 
necessary to separately address this issue in this rule.
    Another commenter (Ex. 29) questioned whether supplemental proposed 
section 851.10 on worker rights would conflict with 10 CFR 708 (DOE 
Contractor Employee Protection Program). The commenter also wondered 
whether 10 CFR 708 would continue to apply to worker rights with 
respect to nuclear and radiological safety issues once supplemental 
proposed section 851.10 was in effect for all other safety and health 
issues. DOE believes that the final rule has no impact on the 
applicability of 10 CFR 708. Specifically, 10 CFR 708 still applies to 
complaints of reprisals against DOE contractor employees under certain 
conditions. In particular, it applies for employee disclosures, 
participations, or refusals related to safety and health matters, if 
the underlying procurement contract (described in 10 CFR section 708.4) 
contains a clause requiring compliance with all applicable safety and 
health regulations and requirements of DOE (48 CFR 970.5204-2c). 
Furthermore, 10 CFR 708 provides employees with a mechanism to obtain 
restitution from the contractor in the event of a finding of a reprisal 
under the 10 CFR 708 rule, but does not allow for civil or contract 
penalty against the contractor for violation of the workers' safety and 
health rights. This final rule provides DOE with the mechanism to 
assess civil or contract penalties against contractors in such cases.
    As was mentioned previously, DOE received numerous comments that 
relate to section 851.20 as a whole, or that relate to multiple 
provisions of this section. In one such comment (Ex. 30), the commenter 
requested that the term ``worker'' be defined as an hourly worker who 
performs line functions in areas to be inspected. Additionally, the 
commenter believed that the definition of ``worker'' should not include 
lawyers, supervisors, and managers for the contractor, since managerial 
and legal personnel have an interest in minimizing penalties and cannot 
best represent worker interests during inspections. As discussed 
previously, worker has been defined to be contractor employees 
performing work at a covered workplace in furtherance of a DOE mission.
    A few commenters (Exs. 40, 47, 55) asserted that the rule should 
incorporate worker involvement in the development of worker safety and 
health programs. One of the commenters (Ex. 47) believed that 
supplemental proposed section 851.10 should be revised to indicate that 
it is not just a workers' right, but also their responsibility to 
comply with the provisions in supplemental proposed section 851.10. The 
commenter recommended that the section be renamed ``Worker rights and 
responsibilities.'' DOE agrees with this comment and has renamed 
section 851.20 of the final rule ``Management responsibilities and 
worker rights and responsibilities'' to highlight the collaborative 
nature of the worker safety and health process. As a related 
modification, DOE has named the subsection on workers rights--section 
851.20(b)--``Workers Responsibilities and Rights.'' Furthermore, final 
rule section 851.20(a)(4) requires management to provide a mechanism to 
involve workers and their elected representatives in the development of 
the worker safety and health program goals, objectives, and performance 
measures and in the identification and control of hazards in the 
workplace. DOE also included provision 851.20(a)(8), which requires 
managers to provide for regular communication with workers about 
workplace safety and health matters.
    Also concerned with worker rights, one commenter (Ex. 11) suggested 
that workers be given the right to provide comments or testimony on 
possible toxic effects of substances in the workplace. DOE agrees that 
workers should be able to provide input on matters that affect them, 
and this final rule contains provisions to further this objective. 
Section 851.20(a)(4) requires management to provide a mechanism to 
involve workers and their elected representatives in the development of 
the worker safety and health program goals, objectives, and performance 
measures, and in the identification and control of hazards in the 
workplace. Additionally, section 851.20(b)(7) establishes the right for 
workers to express concerns related to worker safety and health. For 
issues that involve rulemaking regarding worker exposure to a hazardous 
substance, the Administrative Procedures Act gives the public 
(including workers) the right to comment on rulemaking activities; DOE 
does not believe it necessary to address this issue more specifically 
in the rule.
    DOE received several comments related to retribution and reprisal 
as a result of workers exercising their rights. Seven commenters (Exs. 
11, 21, 30, 40, 44, 60, 62) expressed concern over retribution against 
workers who report violations, injuries, and unsafe work conditions and 
felt the regulation should preclude discrimination against any employee 
for notifying DOE or requesting an investigation. An eighth commenter 
(Ex. 15) qualified a similar concern by suggesting that security- and 
confidentiality-related issues be considered in granting worker rights. 
This commenter suggested that section 851.20(b) include language that 
allows the worker rights without reprisal, as long as their actions are 
``consistent with non-disclosure, confidentiality and security 
requirements.'' One commenter (Ex. 62) supported anonymous 
notifications and complaints by workers to DOE enforcement staff 
without fear of disclosure of identity to non-enforcement personnel. 
This commenter suggested that standardized forms to be created for this 
purpose with an explicit option for the complainant to select 
anonymity. Furthermore under the Privacy Act the commenter proposed 
that penalties should apply to individuals who breach the employee's 
right to confidentiality in making a complaint. This commenter argued 
that such breaches should be considered as civil violations. DOE 
addresses these concern related to retribution and reprisal in the 
final rule by including sections 851.20(a)(6), 851.20(b)(7), and 
851.20(b)(9). The first of these three requires management to establish 
procedures for workers to report, without reprisal, job-related 
fatalities, injuries, illnesses, incidents, and hazards and make 
recommendations about appropriate ways to control those hazards. 
Sections 851.20(b)(7) and 851.20(b)(9) give workers the right, again 
without reprisal, to express concerns related to worker safety and 
health and to stop work if they discover employee exposures to 
imminently

[[Page 6890]]

dangerous conditions or other serious hazards. DOE notes that each of 
these provisions are enforceable under the rule and that contractors 
are subject to both civil and contract penalty for noncompliance with 
these provision. Further, provision 851.40(c) allows workers or worker 
representatives to remain anonymous upon filing requests for 
investigation or inspection. Notwithstanding a worker's right to remain 
anonymous, DOE notes that penalties could not be assessed under the 
Privacy Act. Such a complaint would not be a part of a system of 
records and would not be placed in any sort of file identifiable by 
name, employee number or other unique identifier. Without those two 
qualifications, such a complaint would not be covered by the Privacy 
Act.
    Several commenters asked DOE to clarify or expand the rule to 
improve the flow and exchange of information and documentation. For 
example, one commenter (Ex. 54) requested that the rule require 
communication pathways between contractors, workers, DOE, and worker 
representatives. DOE agrees with this comment and the final rule 
includes section 851.20(a)(8), which requires contractors to provide 
for regular communication with workers about worker safety and health 
matters. DOE will also provide guidelines to assist contractors in 
developing appropriate communication methods in guidance materials to 
be published shortly after promulgation of this final rule. DOE 
believes, however, that stipulating the exact means and methods for 
achieving this communication in an enforceable regulation would be 
unnecessarily restrictive, could undermine existing communication 
mechanisms, and could hinder contractor creativity in future program 
development efforts.
    Several commenters (Exs. 13, 16, 29, 30, 36, 37, 54, 62) expressed 
concern over worker rights to various forms of information, as well as 
manager obligations to provide workers with certain information. One 
commenter (Ex. 62) requested that employers should be required to post 
a DOE Safety Rule Notification Poster describing Part 851 that would 
inform workers of rule provisions, the penalties of non-compliance, how 
to obtain more information and an 800 toll-free number to call. In 
addition, the commenter supported the idea of informative workshops to 
explain the rule to workers as part of training programs. DOE addresses 
this concern in the final rule by including section 851.20(a)(10), 
which requires contractor managers to inform workers of their rights 
and responsibilities by appropriate means, including posting the DOE-
designated Worker Protection Poster in the workplace where it will be 
accessible to all workers. Although the contractor may provide 
electronic access to the poster, it must still post the poster in areas 
accessible to workers. DOE further strengthened workers' right to 
information through final rule section 851.20(b)(6), which allows 
workers to request and receive results of inspection and accident 
investigations.
    Two commenters (Ex. 29, 60) thought it important that the worker 
safety and health program be available to workers. In response to these 
comments, final rule section 851.20(a)(5), DOE requires that management 
provide workers with access to information relevant to the worker 
safety and health program. DOE leaves to the contractor the discretion 
to determine the appropriate format, which must be accessible to all 
workers. DOE considers electronic means accessible, provided that all 
employees have access to, and the knowledge to use, computers.
    Still considering the flow and exchange of information, two 
commenters (Exs. 16, 29) requested clarification on what DOE considers 
to be the ``DOE safety and health publications'' and the ``standards, 
controls, and procedures'' that were specified in supplemental proposed 
section 851.10(b)(1). In a related question, one of these commenters 
(Ex. 29) asked whether the documents to which workers must be provided 
access, as specified in supplemental proposed section 851.10(b)(1), may 
be provided ``on request'' or whether they must always be available. 
The commenter noted that the documents sometimes include costly ANSI 
standards. DOE intends the documents to be available and provided upon 
request to employees for review. DOE does not intend for the employer 
to provide each employee with his/her own copy of the standards. Note 
that DOE would expect the contractor to have access to (or copies of) 
all the standards with which the contractor must comply.
    In a more general comment about the right of worker representatives 
to have the same access to information as workers, two commenters (Exs. 
11, 54) recommended that the rule clearly state that disclosure affects 
workers and their unions. Specifically, these commenters believe that 
worker representatives should have the right to request information, 
observe monitoring, request relevant exposure and medical records and 
receive results within 15 days, participate in the worker safety and 
health process, or create joint worker safety and health committees. 
DOE, through final rule section 851.20(a)(4), requires management to 
provide a mechanism to involve workers and their elected 
representatives in the development of the worker safety and health 
program goals, objectives, and performance measures, and in the 
identification and control of hazards in the workplace. Further, the 
final rule, as specified in section 851.11(d), requires contractors to 
give labor organizations representing workers for collective bargaining 
timely notice of development and implementation of the worker safety 
and health program and any updates, as well as bargain on 
implementation issues in a manner consistent with federal labor laws 
upon timely request.
    Several commenters (Exs. 11, 30, 44, 60, 62) requested that workers 
have the right to participate in enforcement actions. Three of these 
commenters (Exs. 44, 60, 62) recommended that citations be posted and 
that employees be given the opportunity to comment on proposed 
enforcement actions. One of these commenters (Ex. 62) argued that such 
provisions were comparable to worker rights related to OSHA enforcement 
actions. Another commenter (Ex. 30) asked that DOE incorporate worker 
participation as a party in settlement agreements. The fourth commenter 
(Ex. 11) asserted that workers should have the right to be involved in 
any meetings or hearings to discuss objections the employer has to 
allegations of safety and health violations, the assessment of 
penalties, and/or discussions or changes in abatement plans, 
procedures, or deadlines. DOE notes that Part 851's enforcement process 
is based on one that has been successfully used for over ten years with 
respect to the DOE Nuclear Safety Requirements, a process which does 
not contemplate such participation. DOE further notes that the OSHA 
enforcement process does not involve employee participation to the 
degree requested by the commenters. In addition, section 851.40(c) does 
provide worker representation, such as the right to request the 
initiation of an inspection or investigation. DOE concludes that the 
degree of employee participation in the enforcement process is 
appropriate and that the specific commenter requests for additional 
worker involvement in the enforcement process would not be appropriate.
    DOE received several comments regarding multiple issues related to 
exposure monitoring. Three commenters (Exs. 16, 54, 55) worried that 
the language in supplemental proposed section 851.10(b)(3), which would 
give

[[Page 6891]]

workers the right to observe monitoring or measuring of hazardous 
agents, could be misinterpreted. Specifically, the commenters believed 
this section could be interpreted as implying that specific monitoring 
is required for each individual worker (instead of allowing 
representative sampling), or as suggesting that contractors do not have 
to share monitoring results with unmonitored workers performing the 
same job. These commenters felt that representative sampling results 
should be provided to all affected workers. However, two other 
commenters (Exs. 26, 49) disagreed, asserting that the requirement 
should be limited to providing workers with only their own results, in 
keeping with the Privacy Act. The commenters believed that workers are 
unlikely to be qualified to interpret monitoring results for the whole 
workplace. To ensure timely transfer of information, one commenter (Ex. 
16) recommended that DOE specify a time frame within which a contractor 
should provide employees with exposure results (e.g., results of 
applicable exposure monitoring must be provided to employees within 90 
days following analysis). Further, one commenter (Ex. 49) believed that 
allowing workers to enter operational areas ``to observe monitoring'' 
conflicts with the exposure reduction and minimization aspects of Part 
850 and RADCON As Low As Reasonably Achievable Principles. With respect 
to Privacy Act concerns, DOE notes an individual's test results would 
be protected. The only way that test results could be disseminated to 
all workers in an aggregated manner is if they are complied with the 
following language pursuant to 5 U.S.C. 552(b)(5): Disclosure may be 
made to a recipient who ``* * * has provided the agency with advance 
written assurance that the record will be solely used as a statistical 
research or reporting record, and the record is to be transferred in a 
form that is not individually identifiable.''
    DOE received two comments on the use of the term ``overexposure'' 
as it relates to employee notification of results exceeding allowable 
exposure levels. One of these commenters (Ex. 54) suggested that the 
phrase ``was overexposed to hazardous materials'' in supplemental 
proposed section 851.10(b)(2) be replaced with ``exposure exceeded 
limits established by OSHA.'' DOE disagrees, that a change in wording 
is necessary since the term overexposed is commonly understood to mean 
exposures above an established limit (whether set by OSHA, ACGIH, or 
DOE). The other commenter (Ex. 11) believes that employees should be 
informed of all potential hazards before they are exposed, and not only 
when there is overexposure as specified in supplemental proposed 
section 851.10(b)(2). DOE notes that the reference to ``overexposure'' 
in final rule section 851.20(b)(3) applies specifically to notification 
of monitoring results. Other sections of the rule--sections 851.20(b) 
and 851.25--require employee training and access to information on 
workplace hazards and controls.
    The right of workers to participate in monitoring and inspection 
activities attracted several comments. DOE received several comments 
(Exs. 13, 16, 29, 36, 42, 49, 57) expressing the general concern that 
workers would abuse the rights afforded to them in sections 
851.20(b)(1), (b)(4), and (b)(5), which give workers the right to 
participate in activities, observe monitoring results, and accompany 
DOE personnel during an inspection. The commenters felt that these 
activities could result in disruption of work. DOE notes the commenters 
concerns and has modified the language in the final rule.
    Worker rights and employer responsibilities during inspections also 
attracted a number of comments. Many commenters (Exs. 11, 13, 29, 36, 
39, 42, 47, 49, 54, 57) expressed concern about a worker's right to 
accompany DOE personnel during an inspection of the workplace. The 
commenters believed that the rule should include access requirements to 
be met in order to accompany DOE personnel on inspection. For example, 
commenters recommended that a designated employee representative or an 
appropriate safety person, organization, or entity should accompany DOE 
on inspections. DOE agrees that the individual accompanying inspectors 
should not be selected arbitrarily. In the final rule, section 
851.20(b)(5) requires that an ``employee-authorized representative'' be 
allowed to to accompany DOE on inspections. When no representative is 
available, the inspector must consult with employees on matters of 
worker safety and health. Further, section 851.40(c) of the final rule 
establishes the right of worker representatives to request an 
inspection or investigation, with supporting documentation, based on 
criteria outlined in the section.
    In a related comment, two of the same commenters (Exs. 13, 29) 
suggested that allowing workers to go on DOE inspections raises 
implementation concerns (for example, regarding worker and contractor 
notification of inspections and inspector qualification standards to 
ensure consistency of inspections across facilities). DOE notes that 
workers are entitled to reasonable assurances that the inspections are 
carried out in an appropriate manner and notes that in final rule 
section 851.40(d) includes provisions for notifying contractors of an 
enforcement inspection. DOE believes, however, that establishing 
qualification standards for DOE federal staff is beyond the scope of 
this rule; instead, DOE will follow appropriate personnel qualification 
standards for federal staff. DOE also believes that establishing 
detailed provisions on how contractors must implement specific 
provisions of the rule (such as how to notify workers of an inspection) 
would be too prescriptive. DOE believes that contractors are the 
entities best able to determine appropriate implementation procedures 
for their own sites and workforce. Of course, contractor failure to 
comply with the worker rights provisions of the final rule could 
subject the contractor to an enforcement action under the rule.
    DOE also received comments related to worker rights after 
inspections are completed. Two commenters (Exs. 36, 49) expressed 
concern about a worker's right to request and receive results of 
inspection and accident investigations. One of these commenters (Ex. 
36) described the current policy of some facilities to allow workers to 
obtain such results on a need-to-know basis only. The other commenter 
(Ex. 49) believed that workers can only request and receive results 
that are not exempt from disclosure under the Privacy Act or the 
Freedom of Information Act. An additional commenter (Ex. 29) questioned 
whether these ``results'' include DOE records or just contractor 
records. DOE notes that a worker can only receive information or 
results, for his or her own personal record. The worker must designate 
in writing a representative to receive personal information.
    One commenter (Ex. 11) believed that worker rights should include 
the right to request action from an employer to correct hazards or 
violations even if the hazards are not violations of specific OSHA 
standards or other specific requirements. DOE notes that final rule 
section 851.20(b)(7) gives workers the right to express concerns about 
worker safety and health issues. DOE intends for this section to 
include all health and safety concerns, not just hazards addressed by 
specific OSHA standards.
    DOE received two comments related to proposed provisions, retained 
as sections 851.20(a)(9) and 851.20(b)(9) in this final rule, which 
respectively cover managers' responsibilities and workers' rights to 
stop work when a serious

[[Page 6892]]

hazard is discovered or believed to be present. One commenter (Ex. 28) 
objected to the use of the word ``discover'' in supplemental proposal 
section 851.10(b)(8), believing that such a term suggests willful 
deceit or ignorance on the part of managers. The commenter stated that 
while stop work authority is needed, it should be implemented in a 
controlled manner in accordance with ``established procedures, which 
include but should not be limited to pre-work briefings of prevailing 
working conditions.'' DOE intends for the term ``discover'' in final 
rule section 851.20(b)(9) to imply that the hazard was not previously 
identified through workplace assessment and hazard identification 
procedures. DOE also expects that any identified hazards would have 
been mitigated and controlled prior to allowing workers to proceed with 
activities in a work area. DOE agrees that the rights granted under 
this provision should be exercised in a controlled manner. Hence, 
section 851.20(a)(9) of the final rule requires contractors to develop 
appropriate procedures to implement stop work authority.
    In related comments, three commenters (Exs. 11, 28, 48) thought 
that the language in supplemental proposed section 851.10(b)(8) was too 
vague, broad, or subjective. DOE notes that this stop work authority 
provision is similar to the provisions in DOE Order 440.1A. DOE is not 
aware of any problems with the implementation of this provision under 
440.1A and therefore, has retained this provision in the final rule.
    Another commenter (Ex. 54) believed that worker representatives 
should be allowed to participate in a review of stop work conditions. 
The commenter suggested that such issues are resolved more quickly and 
effectively when employer and employee representative (as well as 
external experts such as OSHA and DOE Environment, Safety and Health) 
are involved. DOE acknowledges these concerns and believes the concerns 
are addressed by existing provisions of the final rule. Specifically, 
section 851.20(a) establishes a wide array of management 
responsibilities for ensuring worker rights under and involvement in 
the safety and health program. Final rule section 851.20(a)(9) further 
requires contractors to develop appropriate stop work procedures for 
workers and section 851.20(a)(7) requires contractors to provide prompt 
response to worker reports of workplace hazards. DOE believes that 
these combined provisions provide DOE contractors an adequate framework 
to develop appropriate stop work provisions. Within this framework, DOE 
contractors are free to develop stop work procedures that they feel 
most effectively protect workers (and empower workers to protect 
themselves) and allow for prompt corrective action in the event of an 
imminent danger situation. Since this provision has been required of 
DOE contractors under DOE Order 440.1A for the past 10 years, DOE would 
expect contractors to apply existing stop work procedures with slight 
modifications if deemed necessary based on lessons learned from 10 
years of experience implementing this provision.
Section 851.21--Hazard Identification and Assessment
    Section 851.21 establishes the contractor's duty to enact 
procedures for identifying hazards and assessing the related risks in 
the workplace. This section lists activities contractors must perform 
as part of their hazard and risk assessment procedures (e.g., 
conducting workplace monitoring, evaluating operations). Under this 
section, contractors must also provide a list of closure facility 
hazards and associated controls to the Head of DOE Field Element, who 
will accept the controls or direct specific additional actions 
described in this section.
    DOE received a number of comments that expressed concern about the 
subjectivity of the supplemental proposed section 851.100(b) language 
concerning identification and evaluation of workplace hazards, and 
particularly the requirement in section 851.100(b)(1)(iii) to evaluate 
potential hazards that may arise from unforeseeable conditions. A 
number of commenters (Exs. 13, 15, 16, 20, 25, 27, 31, 36, 42, 49) 
recommended that the supplemental proposed requirement to evaluate 
potential hazards from unforeseeable conditions be eliminated or 
replaced, based on their opinion that this is an ambiguous, general 
requirement that unreasonably puts contractors in the position of 
trying to foresee the unforeseeable. DOE has eliminated the requirement 
in the final rule. DOE also has modified the final rule to include 
section 851.21, which provides specific requirements to guide 
contractors' hazard identification and risk assessment activities.
    Section 851.21(a) requires contractors to establish procedures to 
identify existing and potential workplace hazards and assess the risk 
of associated workers' injury and illness. These procedures must 
include methods to: (1) Assess worker exposure to chemical, physical, 
biological, or safety workplace hazards through monitoring; (2) 
document assessment for workplace hazards using recognized exposure 
assessment and testing methodologies and using accredited and certified 
laboratories; (3) record observations, testing and monitoring results; 
(4) analyze designs of new facilities and modifications to existing 
facilities and equipment for potential workplace hazards; (5) evaluate 
operations, procedures, and facilities to identify workplace hazards; 
(6) perform routine job activity-level hazard analysis; (7) review site 
safety and health experience information; and 8) consider interaction 
between workplace hazards and other hazards such as radiological 
hazards.
    Most of the comments that DOE received on this section relate to 
the scope of the required hazard assessment procedures. Two commenters 
(Exs. 42, 47) suggested that it is not feasible to consider all 
hazards, as specified in supplemental proposed section 
851.100(b)(1)(v), and that only relevant hazards should be considered. 
DOE believes that to be effective, a worker safety and health program 
must establish and implement procedures that will identify potential 
workplace hazards and evaluate the associated risks. In the final rule, 
section 851.21(a) requires that such procedures be established. 
Contractors are to identify hazards that are to be identified by 
assessing worker exposures to chemical, physical, biological and safety 
hazards identified through appropriate workplace monitoring and job 
activity level hazard analysis. These methods are designed to identify 
the hazards to which workers may be exposed. Through this process, DOE 
expects that contractors will be able to determine which hazards are 
relevant to specific work situations.
    Two other commenters (Exs. 42, 47) expressed concern that 
supplemental proposed section 851.100(b)(1)(vii) to (ix) went beyond 
the scope of the ISMS. While the commenters believed that these 
provisions were beneficial and appropriate for a worker safety and 
health program, they did not believe that these provisions should be 
part of the rule. DOE believes that these provisions are necessary 
requirements for a contractor's worker safety and health program. In 
the final rule, however, DOE has reorganized these provisions to be 
more consistent with the requirements of DOE Order 440.1A, which have 
been in use for the past 10 years. Accordingly, final rule section 
851.21(a), requires contractors to develop procedures using specified 
methodologies (mirroring those established in DOE Order 440.1A) to 
assess and document the risk of worker

[[Page 6893]]

injury and illness associated with existing and potential hazards.
    A number of commenters were concerned about the extent to which 
Part 851 would apply to radiological hazards. Several commenters (Exs. 
16, 20, 31, 36, 42, 47, 48, 49) believed that there is no utility in 
addressing radiological hazards in the worker safety and health program 
document since they are already considered, and controlled through a 
contractor's Radiation Protection Program and Radiation Protection 
Manual in compliance with Price-Anderson Nuclear Safety Regulations 
such as 10 CFR 835. Two other commenters (Exs. 13, 39) requested that 
DOE clarify whether Part 851 applies to radiological hazards. If so, 
one of these commenters (Ex. 13) wondered whether it is DOE's intent to 
apply this rule to radiological hazards at a lower threshold than 
regulated by 10 CFR 820, 830, or 835. In section 851.2(b) of the final 
rule, DOE clarifies that Part 851 does not apply to radiological 
hazards to the extent they are regulated by 10 CFR Parts 820, 830, and 
835. Section 851.21(a)(1) requires contractors to develop procedures 
that include methods for identifying and assessing hazards related to 
chemical, physical, biological, and safety work exposures only. Final 
rule section 851.21(a)(8) makes clear the need to consider other 
hazards.
    DOE received a few comments related to sampling and laboratory 
analysis. One such commenter (Ex. 16) requested that DOE clarify the 
language in supplemental proposed section 851.100(b)(1)(vii) by 
defining what constitutes ``appropriate workplace monitoring'' (i.e., 
whether it is in relation to the number of samples, the frequency/
timing of samples, qualifications of those conducting the sampling, a 
comparison of results to limits, etc.). The commenter recommended that 
``appropriate'' either be defined objectively or by reference to OSHA 
standards used for workplace monitoring. DOE disagrees that more 
specificity is needed, and believes it is understood that the term 
``appropriate'' in this case means using recognized methods for 
workplace monitoring such as those published by the American Industrial 
Hygiene Association or the National Institute for Occupational Safety 
and Health, etc. DOE notes, however, its intent to develop supplemental 
guidance material following publication of the final rule to assist 
contractors in implementation of the rule.
    Other commenters (Exs. 5, 16, 27) expressed concern that 
supplemental proposed section 851.100(b)(1)(viii) would require the use 
of accredited or certified laboratories. Specifically, one of these 
commenters (Ex. 5) asked if the provision for ``documenting assessments 
for chemical, physical, biological and safety workplace hazards using 
recognized exposure assessment and testing methodologies and use of 
accredited or certified laboratories'' also required contractors to use 
accredited or certified laboratories for performing other related 
activities. Another commenter (Ex. 16) believed that certain highly 
contaminated samples may fall outside the capabilities of commercially 
available laboratories. Therefore, this commenter felt that this 
provision should be either deleted or modified to clarify which 
assessments require accredited or certified laboratories, which 
accreditation or certification authorities should be used, and what the 
provisions are for frequency and equivalency. Both this commenter (Ex. 
16) and another commenter (Ex. 27) believed that any requirement for 
use of accredited or certified laboratories should be evaluated with 
respect to potential costs versus benefits, since use of such 
laboratories could result in increased costs and time. DOE believes 
that the converse would likely be true, since not using a certified 
laboratory would involve such efforts as establishing quality control 
and quantitative analysis processes etc. Therefore, these efforts would 
likely be more costly than using an established accredited laboratory. 
DOE also notes that reliance on accredited and certified laboratories 
is consistent with requirements established under DOE Order 4040.1A, 
OSHA standards, and accepted industrial hygiene professional practice.
    One commenter (Ex. 16) requested that DOE clarify what kinds of 
``safety and health information'' contractors are required to review, 
as referred to in supplemental proposed section 851.100(b). To clarify 
this, DOE provides in final rule section 851.21(a)(7) that contractors 
hazard identification and assessment procedures must include provisions 
for the review of site safety and health experience information. DOE 
anticipates that such information could include, but may not be limited 
to, injury and illness data, inspection results, accident and near miss 
investigation results and trending data, etc.
    Section 851.21(b) requires contractors to submit to the Head of DOE 
Field Element a list of closure facility hazards and the established 
controls within 90 days of identifying such hazards. The Head of Field 
Element, with concurrence by the CSO, will have 90 days to accept the 
closure facility hazard controls or direct additional actions to either 
(1) achieve technical compliance or (2) provide additional controls to 
protect the workers. DOE intends section 851.21(b) to be implemented in 
a manner that is consistent with the provision in the NDAA on taking 
into account the special circumstances associated with facilities that 
are or will be permanently closed, demolished or subject to title 
transfer and that minimizes the need for variances.
    One commenters (Ex. 28) believed that DOE sites within one year of 
a formal declaration of site closure should be exempt from compliance 
with Part 851 and a separate exclusion to this effect should be 
included under section 851.1. Another commenter (Ex. 39) asked for 
clarification of the types of ``special circumstances'' that should be 
considered for a workplace that is (or is expected to be) permanently 
closed, demolished, or transferred to another entity. This commenter 
(Ex. 39) also felt that the supplemental proposed section 
851.100(b)(3)(ii), needed to be clarified with respect to the types of 
circumstances considered relevant to a proposal for modified 
requirements at sites scheduled for closure, demolition, or transfer. 
DOE agrees that the original supplemental proposed language related to 
what is now termed ``closure facilities'' was unclear, and has revised 
this section of the final rule. In final rule section 851.21(b), DOE 
requires submission of a list of closure facility hazards that cannot 
be fully abated or controlled within 90 days after identification of 
the hazards in a manner that achieves strict technical compliance with 
applicable regulatory requirements. The Head of DOE Field Element has 
90 days to accept the closure facility hazard controls identified by 
the contractor as sufficient to ensure a safe and healthful workplace 
or direct additional action to either achieve technical compliance or 
provide additional controls to protect the workers.
    Final rule section 851.21(c), which was supplemental proposed 
section 851.100(b)(1), requires contractors to perform the activities 
identified in section 851.21(a), initially to obtain baseline 
information, and again as often as necessary. The commenter (Ex. 35) 
inquired whether the intent was to require a baseline hazard assessment 
to identify hazards for every workplace. The commenter asked whether it 
might also be acceptable to describe only the basic hazards of the 
workplace initially, while also providing a method in the worker safety 
and health program for

[[Page 6894]]

detailed real-time, job-specific hazard and safety analysis to be 
conducted immediately prior to beginning the work. The commenter went 
on to state that this latter (real-time assessment) would be performed 
to ensure that changing worksite conditions have not impacted hazards 
and associated mitigation strategies since the time when the basic 
hazards were described in the initial assessment. DOE believes the 
requirements in final rule section 851.21 are appropriate, and declines 
to accept this commenter's suggestion. It is DOE's intent that within 
the framework provided in final rule section 851.21(c), the contractor 
must identify existing and potential workplace hazards using the 
prescribed methods in section 851.21(a), for new and existing 
facilities, operations, and procedures. The contractor must establish 
and implement hazard identification and risk assessment procedures 
initially to obtain baseline information and again as often as 
necessary to ensure compliance with the regulation in Subpart C. 
Section 851.21(a) also requires routine job activity level hazard 
analyses to be performed. The final rule intends for the contractor to 
develop and include the process for performing hazard identification in 
the worker safety and health program, but the contractor is not 
required to present the full results of the hazard assessment in the 
worker safety and health program.
Section 851.22--Hazard Prevention and Abatement
    Final rule section 851.22 establishes the requirement for 
contractors to develop and implement a process for preventing, 
prioritizing, and abating hazards in the workplace. Under this section 
contractors must abate hazards using a prescribed hierarchy of 
controls, starting with elimination (or substitution) and ending with 
personal protective equipment, which is to be used only as a last 
resort. Hazards must also be considered when contractors purchase 
equipment. As a general comment on the section as a whole, three 
commenters (Exs. 28, 45, 51) believed that the term ``adequately 
protected'' is ambiguous in supplemental proposed section 851.100(a)(2) 
and implies that if an injury occurs by any means, the program would 
not have provided ``adequate protection.'' The commenters believed that 
the program should provide an acceptable level of worker protection 
based upon determination of acceptable risks for identified hazards. As 
discussed previously, DOE believe ``adequate protection'' is a proper 
standard. However, in revising this provision, the reference to 
``adequate protection'' has been eliminated.
    Section 851.22(a) requires contractors to establish and implement a 
hazard prevention and abatement process to ensure that all identified 
and potential hazards are prevented or abated in a timely manner. For 
hazards identified either in the facility design or during the 
development of procedures, contractors are required to incorporate 
controls in the appropriate facility design or procedure. For existing 
hazards identified in the workplace, contractors are required to (1) 
prioritize and implement abatement actions according to the risk to 
workers; (2) implement interim protective measures pending final 
abatement; and (3) protect workers from dangerous safety and health 
conditions. One commenter (Ex. 16) requested that the term ``imminently 
dangerous conditions'' in supplemental proposed section 
851.100(b)(2)(iii) be defined. DOE has modified the language in final 
rule section 851.22(a)(2)(iii) to read ``dangerous safety and health 
conditions.'' These terms are commonly understood and need not be 
defined in Part 851.
    Section 851.22(b), which corresponds to supplemental proposed 
section 851.100(b)(2)(iv), requires contractors to select hazard 
controls based on the following hierarchy: (1) Elimination or 
substitution of the hazards where feasible and appropriate, (2) 
engineering controls where feasible and appropriate, (3) work practices 
and administrative controls that limit worker exposures, and (4) 
personal protective equipment. Two commenters (Exs. 16, 27) believed 
that the hierarchy of hazard controls should acknowledge appropriate 
economic and technical feasibility, work activity duration, and 
available technology constraints that are important and practical 
considerations in compliance. DOE acknowledges these concerns and 
section 851.22(b) of the final rule has expanded to clarify that 
substitution or elimination of hazards and the use of engineering 
controls should be used where feasible and appropriate, and use of work 
practices and administrative controls to limit worker exposures.
    Section 851.22(c) requires contractors to address hazards when 
selecting or purchasing equipment, products, and services. Two 
commenters (Exs. 31, 54) expressed concern about the supplemental 
proposed section 851.100(b)(2)(v). One commenter (Ex. 31) believed that 
this provision poses a problem because it is difficult to judge the 
safety of services based on human performance, and that this provision 
would require review of safety records for service providers to 
evaluate unsafe work practices. The commenter recommended that the 
reference to services be deleted. The other commenter (Ex. 54) 
recommended rewording the provision in light of the concept of 
inherently safer design to require ``reduction in hazards to workers by 
ensuring that equipment purchase, lease or rental, process and 
equipment design and all acquired services are selected with worker 
safety and health as a priority.'' DOE believes that worker safety and 
health should be a primary consideration in performing work and should 
be considered in all aspects of the work, including the selection and 
purchasing of equipment, products, and services. As a result, this 
provision is retained in the final rule.
Section 851.23--Workplace Safety and Health Standards
    Section 851.23(a) requires that contractors comply with the 
following standards, if applicable to the hazards at their workplace: 
(1) Title 10 CFR 850, ``Chronic Beryllium Disease Prevention Program''; 
(2) Title 29 CFR Parts 1904.4 through 1904.11, 1904.29 through 1904.33; 
1904.44 and 1904.46, ``Recording and Reporting Occupational Injuries 
and Illnesses''; (3) Title 29 CFR Part 1910, ``Occupational Safety and 
Health Standards,'' excluding 29 CFR 1910.1096, ``Ionizing Radiation''; 
(4) Title 29 CFR Part 1915, ``Shipyard Employment''; (5) Title 29 CFR 
Part 1917, ``Marine Terminals''; (6) Title 29 CFR Part 1918, ``Safety 
and Health Regulations for Longshoring''; (7) Title 29 CFR Part 1926, 
``Safety and Health Regulations for Construction''; (8) Title 29 CFR 
Part 1928, ``Occupational Safety and Health Standards for 
Agriculture''; (9) ACGIH ``Threshold Limit Values (TLV) for Chemical 
Substances and Physical Agents and Biological Exposure Indices,'' when 
the ACGIH TLVs are lower (more protective) than permissible exposure 
limits in 29 CFR part 1910 (note that when the ACGIH TLVs are used as 
exposure limits, contractors must nonetheless comply with the other 
provisions of any applicable expanded health standard found in 29 CFR 
Part 1910); (10) ANSI Z88.2, ``American National Standard Practices for 
Respiratory Protection''; (11) ANSI Z136.1, ``Safe Use of Lasers''; 
(12) ANSI Z49.1, ``Safety in Welding, Cutting and Allied Processes,'' 
sections 4.3 and E4.3 (of the 1994 edition or equivalent sections of 
sequent editions); (13) NFPA 70, ``National Electrical Code''; and (14) 
NFPA 70E, ``Electrical Safety in the Workplace.'' These mandatory 
standards establish baseline technical safety and health requirements

[[Page 6895]]

for DOE workplace operations. These standards are already required by 
DOE Order 440.1A, and are enforced through contract mechanisms. Section 
851.23(b) provides that Part 851 may not be construed as relieving a 
contractor from the obligation to comply with any additional specific 
safety and health requirement that the contractor determines is 
necessary for worker protection.
    DOE received a substantial number of comments on this section, many 
of which applied to the section as a whole. One commenter (Ex. 28) 
noted that supplemental proposed sections 851.201 through 851.210 did 
not include requirements for chemical or radiological protection, and 
recommended that DOE specifically define ``recognized areas of 
protection.'' DOE has clarified in final rule section 851.2(b) that 
Part 851 does not apply to radiological hazards to the extent regulated 
by 10 CFR 820, 830, or 835. Further, Subparts B and C establish general 
and specific worker safety and health program requirements that 
contractors must implement to protect workers from workplace hazards, 
which as defined in section 851.3 of the final rule include physical, 
chemical, biological, or safety hazards with any potential to cause 
illness, injury, or death to a person.
    Numerous commenters (Exs. 6, 15, 16, 20, 28, 29, 33, 37, 45, 47, 
48, 51) argued that compliance with the DOE-approved contractor worker 
safety and health program, Work Smart Standards, or Contractors 
Requirements Document should constitute compliance with this 
regulation. Three of these commenters (Exs. 6, 15, 28) alternatively 
suggested that DOE should include in the final rule DOE directives or 
standards that have already been identified through various DOE 
approved processes and incorporated into existing contracts, and then 
define their relationship or functionality within the rule. Two other 
commenters (Ex. 12, 42) requested that the rule clarify how DOE orders 
other than DOE Order 440.1A in prime contracts should be addressed in 
regard to the worker safety and health requirements. DOE has 
incorporated relevant DOE directives into the appropriate sections of 
the final rule. As discussed in the section-by-section discussion for 
Subpart B of the final rule, DOE has also included provisions in 
section 851.13(b) to allow contractors to use existing worker safety 
and health programs established under the Integrated Safety Management 
System, Work Smart Standards process, or other worker safety and health 
process provided that such programs meet the requirements of this rule 
and are approved by the appropriate Head of the DOE Field element. 
Furthermore, DOE notes that the standards included in final rule 
section 851.23(a) have in fact been reviewed and approved by an 
existing DOE safety and health process. Specifically, these standards 
were included in DOE Order 440.1A which was the result of extensive 
coordination among safety and health professionals throughout the 
entire DOE community and was concurred on by all DOE Secretarial 
Officers and approved by the Secretary of Energy.
    Several commenters (Exs. 30, 60, 62) believed that 10 CFR Part 850, 
Chronic Beryllium Disease Prevention Program (CBDPP), should be 
included as an enforceable standard under the rule or, and another 
commenter (Ex. 49) asked DOE to clarify its intent in that regard. The 
latter commenter (Ex. 49) argued that 10 CFR part 850 is a performance-
based standard and did not provide an adequate technical basis to 
ensure consistent enforcement, and believes that DOE should provide 
implementation guidance for 10 CFR part 850 if the Department intends 
to enforce that rule under 10 CFR part 851. Another commenter (Ex. 30) 
asked that DOE expand the scope of 10 CFR part 850 to cover the United 
States Enrichment Corporation (USEC) facilities in Portsmouth, Ohio and 
Paducah, Kentucky. DOE has considered these comments and agrees that 10 
CFR Part 850 should be enforceable under Part 851. Accordingly, final 
rule section 851.23(a)(1) requires contractor compliance with 10 CFR 
part 850. In addition, DOE has included a modification to 10 CFR part 
850 as a part of this rulemaking effort to clarify that a contractor's 
CBDPP should supplement and be an integral part of the worker safety 
and health program required under 10 CFR part 851. This rulemaking 
effort does not, however, expand the scope of 10 CFR part 850. DOE's 
intent with this rulemaking effort, as clarified in final rule section 
851.2, is to establish worker safety and health program provisions for 
contractor workplaces under DOE's jurisdiction, not for those under 
OSHA's jurisdiction as are the USEC facilities mentioned above. DOE 
also notes in regards to the commenter's (Ex. 49) request for CBDPP 
guidance material, that DOE has already published such guidance in DOE 
G 440.7A. DOE further notes that 10 CFR part 850 is already enforceable 
through contract mechanisms on DOE sites, and has been since its 
original promulgation in January, 2001.
    DOE received a few comments that recommended additional codes or 
standards that should be incorporated into this rule. A commenter (Ex. 
24) suggested that DOE should adopt by reference the International Code 
Council (ICC) International Codes as the foundation for DOE rules on 
facility design, construction, renovation, and worker safety, based on 
the premise that these codes are consistent with DOE Orders 420.1 and 
440.1A and have been widely adopted throughout the United States by 
other federal facilities, state and local facilities, and the private 
sector. The commenter believed that to do otherwise would foster non-
uniformity and would likely result in increased costs and decreased 
worker safety. DOE acknowledges the commenter's concern but notes that 
the final rule only includes those consensus standards originally 
required by DOE Order 440.1A. DOE believes that this change is 
consistent with intent of Section 3173 of the NDAA and is appropriate 
in this regulatory context. DOE will continue to encourage contractors 
to comply with applicable consensus standards where appropriate and 
will require compliance with selected standards through DOE directives 
such as DOE Order 420.1 and DOE contracts where needed. DOE also notes 
that final rule section 851.23(b) requires contractors to comply with 
any additional safety and health requirement that they determine to be 
necessary to protect the safety and health of workers.
    Another commenter (Ex. 30) recommended that an indoor air quality 
standard and an ergonomics standard be included in the rule and made 
enforceable. DOE notes, however, that both indoor air quality and 
ergonomic hazards fall within the purview of an industrial hygiene 
program. Accordingly, DOE expects that contractors will address such 
hazards through the implementation of their industrial hygiene program 
established in accordance with Appendix A, section 6 of the final rule. 
DOE expects to develop guidance material to assist contractors in 
implementing these and other requirements of the final rule.
    Another commenter (Ex. 29) indicated that much of the detailed 
codes listed in the supplemental proposal should be replaced by 
reference to the major design codes. As noted above, however, DOE has 
eliminated all but a handful of consensus standards from the final rule 
consistent with the standards originally mandated under DOE Order 
440.1A. Along similar lines, several commenters (Exs. 2, 16, 20, 24, 
31, 33, 37) specifically requested that the

[[Page 6896]]

International Building Code (IBC) of the ICC International Codes 
replace NFPA 5000 since several contractors currently adhere to IBC. 
DOE agrees and has removed NFPA 5000 from the final rule.
    DOE received multiple general comments regarding the inclusion of 
document edition dates in this section. Many commenters (Exs. 1, 3, 4, 
12, 14, 15, 16, 20, 22, 28, 31, 36, 37, 39, 42, 48, 49, 50, 51, 54, 55, 
61) expressed concern that supplemental proposed section 851.201 
included specific edition dates for standards and codes. The commenters 
note that many existing facilities are unlikely to be in compliance 
with these recent editions (presumably because they were constructed to 
meet earlier standards). Several commenters (Exs. 3, 4, 14, 16, 31, 36, 
39, 50, 51) believed that including such dates would result in excess 
exemptions and increased costs. Some of these commenters (Exs. 14, 16, 
31, 36, 50, 51) recommended eliminating the specific edition dates of 
the consensus standards, while others (Exs. 14, 16, 31, 36) offered an 
alternative recommendation that DOE indicate ``latest revision'' in 
lieu of the specific year. Three commenters (Exs. 15, 31, 37) agreed, 
but suggested that DOE include a mechanism within the rule that updates 
these dates to ensure consistency with the changing knowledge and needs 
of the industries they address. Two other commenters (Exs. 28, 49) 
indicated that the edition dates go beyond the statutory authority 
given to DOE by Congress. DOE has carefully considered the forgoing 
comments about the potential effects of incorporating specified 
editions of consensus standards. Regulatory requirements must be 
specific and include the editions of incorporated standards. Therefore, 
DOE cannot accept the suggestion of requiring compliance with the 
``latest revision'' of standards that are incorporated by reference. 
However, DOE has reviewed the standards listed in section 851.23(a) to 
determine if they are appropriate. As a result of this review, DOE has 
eliminated from the final rule many of the consensus standards that 
were listed in the supplemental proposal. The standards included in 
this final rule are consistent with those mandated under DOE Order 
440.1A. While contractors must meet the standards listed in section 
851.23(a), they are free to comply with more recent editions of the 
standards as long as the provisions of the more recent standards are at 
least protective as the edition specified in the final rule. In future 
rulemakings, DOE will consider the need for updating the referenced 
standards.
    Other comments specifically addressed the problems associated with 
updating older facilities and systems that were constructed according 
to previous, rather than current standards. Many of these commenters 
(Exs. 8, 15, 29, 31, 35, 36, 37, 42, 46, 49) expressed concern that the 
rule does not include the ``grandfathering'' of existing facilities 
(i.e., allowing facilities to meet only the code requirements in effect 
at the time the facility was built). The commenters believe that it is 
not feasible to bring older facilities up to all the new codes and that 
attempting to do so would present insurmountable problems for most 
facilities. Commenters also believe that failure to allow 
grandfathering would result in significant costs associated with 
evaluation, modification, reporting requirements, and the need for 
exemptions, as well as costs from fines or penalties associated with 
noncompliance. Some of these commenters requested grandfathering under 
the Code of Record concept, in which a contractor is not required to 
implement current editions of codes or standards unless the facility 
undergoes substantial modifications. The commenters suggested that DOE 
require modification only in the presence of a significant hazard, in 
which case the facility would be upgraded to the requirements of the 
current edition of the code or standard. Another commenter (Ex. 14) 
also expressed concern that no provision in the proposed rule 
recognized DOE's use of the risk-based ``graded approach'' to upgrading 
aging facilities and correcting deficiencies under current industry 
codes, regulations, and guidance. This commenter believes that shifting 
to the proposed compliance-based approach will incur excessive costs at 
the expense of the DOE program office due to the funds required to 
bring all facilities into compliance at the same time, to pay civil 
penalties, or to process exemption requests. The commenter suggested 
that a possible resolution could be to grandfather known deficiencies 
with an approved plan for resolution. Another commenter (Ex. 35) 
recommended that DOE add a provision that allows contractors to use of 
national consensus standards equivalent to those listed in supplemental 
proposed section 851.201. It was the commenter's opinion that including 
the provision would help contractors avoid having to use the exemption 
relief described in Subpart D. As mentioned previously, DOE has 
eliminated many of the consensus standards listed in the supplemental 
proposed rule. The standards mandated in final rule section 851.23(a) 
are consistent with those required under the existing DOE Order 440.1A, 
which has been successfully implemented for more than 10 years. Thus, 
most facilities will be in compliance with the new standards and 
grandfathering is not necessary. Therefore, DOE does not anticipate a 
large number of requests for variances, nor does DOE believe that 
compliance would result in excessive costs.
    Several commenters (Exs. 15, 16, 20, 28, 29, 33, 36, 37, 45, 48, 
51) noted that conflict exists between many of the consensus standards 
and codes (e.g., OSHA, NFPA, ASME, and ANSI codes) cited in the 
supplemental proposal and the codes and standards incorporated into the 
contracts of many prime contractors and other DOE requirements. Most of 
these commenters (Exs. 15, 16, 20, 28, 29, 33, 36, 37, 48, 51) 
suggested that all cited regulations should be reviewed for unintended 
implications. In the final rule, DOE has aligned the standards in final 
rule section 851.23(a) with those required under DOE Order 440.1A. 
Thus, DOE does not anticipate conflict between the standards in the 
final rule and those in existing contracts and other DOE directives.
    Several commenters (Exs. 6, 15, 28, 29, 36, 37, 38, 42, 45, 47, 49, 
50, 57) recommended that DOE adopt OSHA standards as the minimum set of 
requirements, and expressed the opinion that the national consensus 
standards in the supplemental proposed rule do not provide an 
appropriate basis for enforcing worker safety and health requirements 
at DOE facilities. Two of these commenters (Exs. 15, 38) suggested that 
DOE also adopt other elements of OSHA's regulations, such as 
interpretations, penalty policies, and appeals mechanism. As previously 
discussed, DOE has revised the list of standards in response to 
comments on the supplemental proposal. The standards mandated in final 
rule section 851.23(a) are consistent with those mandated under the 
existing DOE Order 440.1A. These standards include OSHA standards as 
well other consensus standards that have been evaluated by the DOE 
health and safety community and deemed necessary to address gaps in the 
OSHA standards and to provide adequate protection to the DOE workforce. 
DOE also intends to prepare enforcement guidance supplements (EGSs) 
that will provide enforcement guidance. DOE anticipates that these EGSs 
will be consistent with and to a great extent based on the equivalent

[[Page 6897]]

OSHA guidance. Furthermore, under final rule section 851.6, DOE will 
continue to issue technical positions that will be based in large 
measure on the existing body of OSHA interpretations.
    Several commenters were concerned by the potential costs of 
compliance with supplemental proposed section 851.23(a). These 
commenters (Exs. 14, 16, 20, 27, 29, 31, 34, 36, 37, 38, 42, 48, 49, 
57, 58) surmised that implementation of the proposed rule would result 
in increased costs associated with the increased amount of resources 
needed to comply with the large number of consensus standards. Further, 
commenters believed that these costs would divert funds normally spent 
on safety, which would negatively impact worker safety and health. Two 
commenters (Exs. 15, 38) also argued that the costs would divert funds 
from research. One commenter (Ex. 11) felt that DOE should perform an 
economic impact analysis for the rule. DOE again notes that in the 
final rule many of the consensus standards listed under the 
supplemental proposal are eliminated and the remaining standards in 
final rule section 851.23(a) are those required by the existing DOE 
Order 440.1A. Most facilities should already be in compliance with 
these standards and, therefore, DOE does not anticipate increased 
costs.
    DOE received a number of comments on specific standards (or blocks 
of standards from the same standard-setting organization). Many 
commenters (Exs. 1, 2, 3, 4, 5, 7, 8, 16, 19, 20, 24, 22, 29, 31, 33, 
37, 39, 45, 47, 49, 54, 55, 58, 59, 61) raised concerns about the NFPA 
codes found in supplemental proposed section 851.201(b), Table 1. The 
commenters recommended that these codes be eliminated or clarified 
based on various compliance concerns, including applicability to 
facilities, increased costs, and excessive variance requests. One 
commenter (Ex. 61) observed that while the supplemental proposed rule 
preamble and purpose indicated that the purpose of the rule was worker 
safety and health, many of the National Fire Protection Association 
(NFPA) requirements referenced in supplemental proposed rule section 
851.201 from DOE Order 420.1A are directed at limiting property damage, 
not improving worker safety. The commenter inquired if it was the 
intent of the rule to address property protection in addition to worker 
safety or whether enforcement of the NFPA standards would be limited to 
those issues and provisions that specifically affect worker safety. 
Furthermore, if the latter was the case, the commenter questioned how 
DOE would document which provisions specifically applied to worker 
safety and which applied to property protection. DOE acknowledges these 
concerns and notes that the intent of the rule is worker safety and 
health. Accordingly, DOE has removed the majority of the specific NFPA 
standards in the interest of reducing the contractor and site 
compliance burdens. NFPA 70 and 70E remain in the final rule because 
they are important for protecting worker safety and health on DOE 
sites. DOE notes, however, several deleted NFPA standards may be 
applicable to DOE facilities through DOE fire protection directives, 
such as DOE Order 420.1A or by contract.
    Several of these commenters (Exs. 2, 8, 16, 19, 29, 37, 45, 49) 
also objected to the American Society of Mechanical Engineers (ASME), 
ANSI, American Petroleum Institute (API), American Water Works 
Association (AWWA), and Underwriters Laboratories (UL) codes found in 
supplemental proposed section 851.201(c), Tables 2 through 5. Commenter 
concerns related to these codes included increased costs if the codes 
were retained, compliance issues, legacy construction issues, lack of 
rationale for omission and inclusion of the codes appearing in the 
tables (i.e., the included codes were too prescriptive but with 
numerous gaps in coverage), lack of applicability to DOE sites, 
potential increase in exemption requests, conflict with cited OSHA 
regulations in the supplemental proposal, level of specificity not 
appropriate to a rule of this type, the fact that specified code 
editions can become quickly outdated, and problems associated with 
revision of edition dates through rulemaking procedures. Many of these 
commenters (Exs. 8, 16, 19, 45) suggested that DOE eliminate the 
specific codes and editions. Finding several of these concerns to be 
valid, DOE has modified final rule section 851.23(a) by eliminating 
Tables 2 through 5 and associated codes (i.e., ASME, API, AWWA, UL, and 
ANSI pressure-related codes).
    DOE also received numerous comments related to the standard on 
TLVs. Many commenters (Exs. 12, 16, 28, 31, 36, 37, 38, 42, 45, 47, 49, 
51, 54, 56) expressed concern over supplemental proposed section 
851.201(e), which required compliance with the ACGIH standard for TLVs. 
Several of these commenters (Exs. 16, 28, 31, 36, 37, 42, 45, 51, 56) 
expressed the opinion that these values are inappropriate and 
recommended that they be eliminated from the rule or adopted only 
partially, since they do not take into account economic or technical 
feasibility. One commenter (Ex. 38) asserted that this provision goes 
beyond OSHA requirements and creates an unreasonable obligation for 
contractors to keep employee exposure levels below both OSHA PELs and 
the ACGIH exposure limits (depending on which value is lower). 
Conversely, another commenter (Ex. 54) recommended that, to ensure 
greater worker protection, DOE continue to require contractors to 
follow ACGIH TLVs where they are more protective than OSHA PELs. DOE 
agrees with the latter comment on inclusion of ACGIH TLVs. In final 
rule section 851.23(a)(9), DOE continues to require the use of ACGIH 
TLVs exposure limits where they are lower and more protective than OSHA 
PELs. As mentioned earlier in the discussion of this section, this 
approach is consistent with DOE Order 440.1A, which has been in place 
and implemented by DOE contractors on DOE worksites for a decade.
    Two commenters were concerned about beryllium exposure levels. One 
commenter (Ex. 49) recommended that the ACGIH TLV for beryllium be 
excluded from the rule on the basis that DOE has a separate rule 10 CFR 
850 that specifically addresses beryllium exposure limits. In contrast, 
another commenter (Ex. 62) believed that DOE should adopt the ACGIH TLV 
for beryllium in the rule; the more protective limit currently under 
consideration by ACGIH would be applicable under this rule upon ACGIH's 
approval. In 851.23(a)(1) of the final rule, DOE requires contractors 
to comply with 10 CFR 850, ``Chronic Beryllium Disease Prevention 
Program'' (Part 850 CBDPP). In addition, Part 850 CBDPP has been 
revised to state that it supplements, and is deemed an integral part 
of, the worker safety and health program under Part 851. Section 
851.23(a)(9) adopts the ACGIH TLVs, however, DOE notes that the rule 
adopts a specific version of the ACGIH standards. Incorporation of any 
future changes to those standards into 10 CFR 851 could only be 
accomplished through appropriate rulemaking procedures.
    DOE received a few requests for additional specific standards to be 
included in the rule. One commenter (Ex. 49) recommended that DOE 
specifically list parts of the referenced ANSI standards that are 
considered exposure limits and technical requirements and, thus, 
applicable under the rule. DOE agrees that specificity is helpful and 
has included 851.23(a)(10), (11), and (12) in the final rule; these 
list the three specific ANSI standards adopted under the rule.

[[Page 6898]]

    Three other commenters (Exs. 11, 54, 55) recommended that DOE 
include the 10 CFR 1904, ``Recording and Reporting Occupational 
Injuries and Illnesses,'' standard and require participation in the 
OSHA illness and injury survey in 29 CFR 1904.41. DOE agrees with this 
comment and in final rule section 851.23(a)(2), DOE includes and 
requires compliance with the following provisions of 29 CFR 1904: 
1904.4 through 1904.11, 1904.29 through 1904.33, 1904.44, and 1904.46, 
``Recording and Reporting Occupational Injuries and Illnesses.''
    One commenter (Ex. 5) suggested that DOE include relevant emergency 
response standards. This commenter noted that Emergency Response 
Planning Guidelines (ERPGs) and Temporary Emergency Exposure Limits 
(TEELs) standards, which apply to emergencies and are not covered by 
other standards, are not referenced in the rule. DOE notes that the 
specific issue of including emergency response standards is beyond the 
scope of this rulemaking.
    Several commenters (Exs. 25, 27, 28, 31, 39, 42, 48) expressed 
concern that supplemental proposed section 851.200(b), which gave DOE 
the authority to impose additional requirements on a contractor, would 
leave contractor liability open-ended and would exacerbate costs. These 
commenters believed that the additional requirements that DOE can 
impose on a contractor should be limited in response to these comments. 
DOE has eliminated this authority and modified the language in final 
rule section 851.23(b) to read, ``Nothing in this part must be 
construed as relieving a contractor from complying with any additional 
specific safety and health requirements that the contractor determines 
to be necessary to protect the safety and health of workers.''
    Another commenter (Ex. 15) felt that the intention of the 
introduction to the supplemental proposal, which indicates that this 
proposal is intended to ``codify a minimum set of safety and health 
requirements with which contractors must comply,'' is not carried over 
into the language of Subpart C, and recommended that supplemental 
proposed section 851.200(a) be modified to include ``A contractor 
responsible for a covered workplace must, at a minimum comply with the 
worker safety and health requirements * * *'' DOE agrees with this 
concern but feels that it is addressed in 851.23(b) of the final rule, 
which states that a contractor is not relieved from complying with 
additional worker safety and health requirements that they deem 
necessary to protect their workers.
Section 851.24--Functional Areas
    Section 851.24 requires that contractors have a structured approach 
to their worker safety and health program, which includes provisions 
for functional areas. Specifically, 851.24(a) requires that 
contractors, at a minimum, include provisions in the functional areas 
of construction safety, fire protection, firearm safety, explosives 
safety, pressure safety, electrical safety, industrial hygiene, 
occupational medicine, biological safety, and motor vehicle safety. 
Section 851.24(b) establishes that contractors are subject to all 
applicable standards and provisions in Appendix A, ``Worker Safety and 
Health Functional Areas.'' Comments regarding each of the functional 
areas are addressed in the discussion of Appendix A in this 
Supplementary Information.
Section 851.25--Training and Information
    Section 851.25 describes the contractor requirements for a worker 
safety and health training and information program. Section 851.25(a) 
establishes the contractor's obligation to provide training, while 
section 851.25(b) describes when, and at what frequency, the training 
must be provided. Specifically, a contractor must provide (1) training 
and information for new workers, before or at the time of initial 
assignment to a job involving exposure to a hazard; (2) periodic 
training as often as necessary to ensure that workers are adequately 
informed and trained, and (3) additional training when safety and 
health information or a change in workplace conditions indicates that a 
new or increased hazard exists. Section 851.25(c) requires contractors 
to provide training and information to workers with worker safety and 
health program responsibilities that is necessary for them to 
effectively carry out those duties.
    One commenter (Ex. 30) recommended that proposed section 
851.100(b)(7) be eliminated stating that it would result in excess 
paperwork since contractors already have safety programs and are 
required to provide a workplace free of hazards. DOE disagrees, 
believing that training is a basic component of successful worker 
protection efforts.
Section 851.26--Recordkeeping and Reporting
    (a) Recordkeeping. Section 851.26 in the final rule addresses 
contractor recordkeeping and reporting requirements. This section 
consolidates provisions that were included in sections 851.4(f) and 
851.7 of the supplemental proposed rule. After considering public 
comment, DOE has revised the recordkeeping and reporting requirements.
    Section 851.26(a) requires a contractor to maintain complete and 
accurate records of all hazard inventory information, hazard 
assessments, exposure measurements, and exposure controls.
    Section 851.26(a)(1) requires contractors to ensure that the work-
related injuries and illnesses of their workers and subcontractor 
workers are recorded and reported accurately in a manner consistent 
with DOE Manual 231.1-1A, ``Environment, Safety and Health Reporting 
Manual.'' This manual was established under DOE Order 231.1A, the 
primary directive on environment, safety and health reporting, 
including occupational injuries and illnesses. The manual requires 
contractors to record, maintain records on, and report occupational 
fatalities, injuries, and illnesses among their employees (and 
subcontractors) arising out of work primarily performed at facilities 
owned or leased by DOE.
    Section 851.26(a)(2) requires contractors to comply with the 
applicable to occupational injury and illness recordkeeping safety and 
health standards in section 851.23 of this part at their site, unless 
otherwise directed in DOE Manual 231.1-1A.
    Section 851.26(b) establishes contractors' duty to report and 
investigate accidents, injuries, and illnesses. Under this section 
contractors are also required to analyze related data for trends and 
lessons learned, in accordance with DOE Order 225.1A, ``Accident 
Investigations.''
    Section 851.26(c) requires that contractors not conceal or destroy 
any information concerning non-compliance or potential non-compliance 
with the requirement of this part.
    DOE received numerous comments on reporting requirements in 
supplemental proposed section 851.4(f). That supplemental proposed 
section would have required contractors to report and investigate each 
occurrence (including ``near miss'' incidents) that causes a 
significant likelihood of death or serious bodily harm. The majority of 
commenters (Exs. 5, 15, 25, 28, 30, 31, 35, 38, 39, 42, 45, 47, 51, 57) 
requested definitions for the terms used in the context of supplemental 
proposed section 851.4(f) (e.g., ``near miss'' and ``significant 
likelihood''). Some commenters (Exs. 16, 36, 42) favored

[[Page 6899]]

deletion of the provision, since the terms were too subjective and 
lacked a clear definition. In response to these concerns, DOE has 
removed this provision from the final rule. Final rule section 
851.26(a)(2) clarifies that contractors must report and record 
workplace injuries and illnesses in accordance with DOE Manual 231.1-
1A.
    The commenters (Exs. 5, 15, 25, 28, 30, 31, 35, 38, 39, 42, 45, 47, 
51, 57) also sought clarification on reporting thresholds for 
occurrences in supplemental proposed section 851.4(f). Two commenters 
(Exs. 13, 39) specifically inquired where and to whom the report should 
be submitted. One commenter (Ex. 60) asserted that occurrence reporting 
should be mandatory and failure to report should be subject to 
enforcement. Concerned that this section contravened Noncompliance 
Tracking System reporting requirements in PAAA-related programs, other 
commenters (Exs. 36, 38, 39, 42, 49, 57) pointed out that supplemental 
proposed section 851.4(f) was not consistent with supplemental proposed 
Appendix A(IX)(b)(5). Several commenters (Exs. 15, 16, 20, 27, 31, 42, 
49) recommended that the reporting process be aligned with existing DOE 
reporting systems like the Occurrence Reporting and Processing System 
or DOE Order 231.1A. As is noted earlier in this discussion, DOE agrees 
with these comments and has replaced supplemental proposed section 
851.4(f) with final rule section 851.26, which references DOE Manual 
231.1-1A.

E. Subpart D--Variances

    The supplemental proposal contained an exemption process based on 
the exemption process established in 10 CFR part 820 for exemptions 
from nuclear safety requirements. DOE selected the exemption process 
outlined in 10 CFR part 820 for use in the supplemental proposal 
because it is specific to DOE activities. DOE believed that because DOE 
contractors had already implemented this process, the process would be 
easily understood and costs would be reduced. Many commenters (Exs. 10, 
11, 15, 16, 20, 21, 29, 31, 33, 36, 37, 38, 39, 40, 42, 46, 49, 54, 
60), however, disagreed with this selection, most stating that this 
process would actually be too costly to implement. Other commenters 
(Exs. 10, 16, 23, 30, 39, 40, 44, 60, 62) argued that the exemption 
process in the supplemental proposal was not consistent with the 
requirement for flexibility specified by Congress in section 3173 of 
the NDAA. Specifically, these commenters felt that the 10 exemption 
criteria included in the supplemental proposal exemption process went 
beyond the flexibility provisions of the NDAA and could allow 
contractors to inappropriately circumvent many of the requirements of 
the rule. Several of these commenters (Exs. 16, 58, 62) felt that the 
flexibility concerns related to closure facilities raised in the NDAA 
would be more appropriately handled through the worker safety and 
health program, hazard abatement, and enforcement provisions of the 
rule.
    To address these concerns, several commenters (Exs. 11, 21, 44, 49, 
60, 62) suggested that DOE should replace the proposed exemption 
process with a variance process modeled after OSHA's variance process 
established in 29 CFR part 1905. These commenters argued that the 
variance process outlined in 29 CFR part 1905 was developed 
specifically to address OSHA worker safety and health standards and, 
thus, was more applicable to the requirements established in the worker 
safety and health program.
    A few commenters (Exs. 28, 45, 51) supported the exemption process 
in the supplemental proposal but expressed concern that the exemption 
implementation process would become unwieldy if additional exemption 
criteria were added. These commenters believed that this could be 
detrimental to legitimate exemption requests (e.g., facility closure or 
demolition), and suggested that an initial screening process be 
established to determine whether an exemption request satisfies 
criteria for evaluation. One commenter (Ex. 28) suggested that the 10 
exemption circumstances be grouped into 4 categories for screening.
    DOE has considered each of these comments and concluded that a 
variance process modeled after the OSHA variance process is more 
appropriate to address worker safety and health issues. As a result, 
DOE has adopted a variance process based on the variance process of 29 
CFR part 1905. DOE notes that, because section 851.23 requires 
compliance with OSHA standards, the use of the OSHA variance process as 
the framework of the DOE variance process will allow DOE to benefit 
from OSHA's implementation of the process over the past 3 decades. DOE 
expects that variance requests to OSHA and OSHA responses will be 
relevant to variance requests that the Department will receive under 
Part 851.
    Many commenters (Exs. 8, 15, 16, 20, 29, 31, 35, 36, 37, 38, 39, 
42, 46, 49) argued that the extensive list of standards in supplemental 
proposed section 851.201 would result in excessive exemption requests 
and a corresponding increase in compliance costs, since contractors 
would often be unable to meet the specific editions of standards 
incorporated by reference. One commenter (Ex. 5) stated that exemptions 
take an incredible amount of time to prepare and get through the DOE 
system for review and approval. As previously discussed, DOE has pared 
back the standards mandated in the final rule to be consistent with 
those required by existing DOE Order 440.1A. DOE believes that DOE 
contractors are intimately familiar and largely in compliance with the 
requirements of these standards. As a result, DOE does not anticipate a 
large number of requests for variances. As mentioned in the section-by-
section discussion for the fire protection provisions of Appendix A 
section 2 of the final rule, DOE believes that the ``equivalency'' 
process established in many of the NFPA standards required under final 
rule section 851.23 will further reduce the need for variances under 
the rule.
    DOE also intends to apply OSHA's policies regarding de minimis 
violations in determining the need for a variance and believes that 
this policy will further reduce the volume of variance requests. 
Specifically, OSHA practice holds that variances are not needed for 
conditions that meet the criteria for de minimis violations. These 
criteria, as described in the OSHA Field Inspection Reference Manual 
CPL 2.103, Section 7--Chapter III, Sub-section C(2)(g) include 
conditions where: (1) Violations of the relevant standard has no direct 
or immediate relationship to safety or health; (2) An employer complies 
with the clear intent of the standard but deviates from its particular 
requirements in a manner that has no direct or immediate relationship 
to employee safety or health; (3) An employer complies with a proposed 
standard or amendment or a consensus standard rather than with the 
standard in effect at the time of the inspection and the employer's 
action clearly provides equal or greater employee protection or the 
employer complies with a written interpretation issued by the OSHA 
Regional or National Office; or (4) An employer's workplace is at the 
``state of the art'' which is technically beyond the requirements of 
the applicable standard and provides equivalent or more effective 
employee safety or health protection.
    General examples illustrating potential de minimis conditions that 
may not require issuance of variances based on the OSHA criteria 
described above may involve deviations of distance specifications, 
construction material requirements, use of incorrect

[[Page 6900]]

color, minor variations from record-keeping, testing, or inspection 
regulations. For example, in considering a variance request for 29 CFR 
1910.27(b)(1)(ii) which allows 12 inches as the maximum distance 
between ladder rungs, OSHA determined that a situation involving rungs 
that were 13 inches apart could be considered de minimis. In another 
example involving 29 CFR 1910.28(a)(3) which requires guarding on all 
open sides of scaffolds, OSHA determined that a situation where 
employees were tied off with safety belts in lieu of guarding, met the 
intent of the standard and thus, was a de minimis condition and a 
variance was not needed. In a third example, OSHA determined that a 
deviation from 29 CFR 1910.217(e)(1)(ii) which, requires that 
mechanical power presses be inspected and tested at least weekly, was 
de minimis in a situation where the machinery was seldom used, and was 
inspected and tested prior to each use.
    The following sections provide a detailed discussion of the 
variance process outlined in the final rule. Because this process 
differs significantly from the exemption process outlined in the 
supplemental proposal, the sections below do not correspond directly 
with the sections of the original proposal.
Section 851.30--Consideration of Variances
    Section 851.30 establishes the authorities that will consider 
requests for variances from specific provisions of the rule. 
Specifically, section 851.30(a) establishes that the Under Secretary 
has the authority to grant variances. Under this provision, this 
authority may not be delegated. A few commenters (Ex. 30, 44, 60, 62) 
believe that the Secretary of Energy, not the Officer with 
responsibility for a contractor's activity, should issue the decision 
for a variance or an exemption. The commenters believe that instead of 
allowing the NNSA to recommend exemptions and issue final decisions, 
the Energy Secretary should render decisions on all exemptions, after 
receiving a recommendation from the EH-1. DOE disagrees, but believes 
that the appropriate approval level for granting a variance rests with 
the Under Secretary for Energy and Environment, or the Under Secretary 
for Science, or the Under Secretary for Nuclear Security/Administrator 
for National Nuclear Security Administration, and need not be elevated 
to the Secretarial level. The Under Secretary, in granting the variance 
must consider the recommendation of the Assistant Secretary for 
Environment, Safety and Health.
    Another commenter (Ex. 11) stated that non-NNSA and NNSA 
contractors should not have separate systems for the exemption process, 
and that one process would be appropriate for the consideration of all 
variances. DOE agrees that a single Department-wide process is 
appropriate and has designed the variance process so that the Assistant 
Secretary for Environment, Safety and Health considers all variances 
requests and makes a recommendation as to whether they should be 
granted or denied. The decision to grant a variance is made by the 
Under Secretary with line management responsibility for the contractor 
requesting the variance. The Under Secretary must consider the 
recommendation of Assistant Secretary in deciding whether to grant the 
variance.
    One commenter (Ex. 29) argued that the exemption process would 
function more efficiently if variance requests for standards addressing 
less significant hazards could be approved at the regional or site 
level, so as not to overburden the CSO with multiple variance requests. 
DOE believes, however, that concerns regarding excessive variance 
requests are no longer relevant since, for the reasons noted above, DOE 
does not anticipate a large number of requests for variances.
    A final commenter (Ex. 47) on this section believed that the 
provision that the CSO cannot delegate exemption authority contradicts 
the requirements of supplemental proposed section 851.203(a)(9). This 
referenced section addressed a fire protection self-assessment program; 
however, DOE believes this was an erroneous reference and that the 
commenter intended to reference supplemental proposed section 
851.203(a)(12), which addressed the approval of fire protection 
equivalencies at the site manager level. Although this specific 
provision has been removed from the final rule, the equivalency process 
is separate from the variance process outlined in subpart D of the 
final rule, so no conflict exists within the rule.
    Section 851.30(b) establishes that a variance application must 
contain the requirements specified in final rule section 851.31.
Section 851.31--Variance Process
    Section 851.31 of the final rule describes the variance process 
requirements. Several commenters (Exs. 15, 16, 29, 31, 37, 42, 46, 49) 
expressed concern over the proposed requirement to resubmit existing 
exemptions, especially those exemptions involving fire safety (Exs. 31, 
37, 42). Commenters stated that this requirement would result in a 
significant increase in exemption requests, and this, in turn, would 
result in increased cost including the need for additional resources to 
manage the risk pending reapproval. A few commenters suggested that the 
rule be reworded to incorporate previous exemptions and equivalencies 
(Ex. 16, 31, 37, 49). DOE notes the commenters' concerns and has 
revised the final rule.
    Section 851.31(a) requires contractors desiring a variance from a 
safety and health standard established in final rule 851.23 to submit a 
written application to the appropriate CSO. Section 851.31(a)(1) and 
(2) established that the CSO may forward the application to the 
Assistant Secretary for Environment, Safety and Health. If the CSO does 
not forward the application to the Assistant Secretary, the CSO must 
return the application to the contractor with a written statement 
explaining why the application was not forwarded.
    Final rule section 851.31(a)(3) requires upon receipt of the 
variance application from the CSO, the Assistant Secretary for 
Environment, Safety and Health to review the application for a 
variance, and make a written recommendation to either approve the 
application, or approve the application with conditions, or deny the 
application. In this process, the Assistant Secretary for Environment, 
Safety and Health ensures uniformity in grant variances and provides 
the consistency needed the variance process.
    One commenter (Ex. 49) expressed concern that the proposed rule is 
unclear as to whether the CSO can grant an exemption if the Assistant 
Secretary for Environment, Safety Health does disagrees or fails to 
respond during the 30-day review period. This commenter suggested that 
the rule include language that states that the CSO may grant an 
exemption if the Assistant Secretary fails to respond, or even if the 
Assistant Secretary disagrees, during the 30-day review period. DOE has 
revised the final rule to elevate approval authority to the appropriate 
Under Secretary, which requires the appropriate Under Secretary to 
``consider'' the Assistant Secretary's ``recommendations.'' DOE has 
revised the final rule to elevate approval authority to the appropriate 
Under Secretary, which requires the appropriate Under Secretary to 
consider the Assistant Secretary's recommendations.
    Two commenters (Exs. 30, 60) expressed concern that the 
supplemental proposal might be interpreted as allowing exemptions to go 
into effect within 30 days if EH-1

[[Page 6901]]

fails to act on an exemption review. The commenters believed that this 
maybe an unrealistic deadline if there is a backlog of exemption 
requests, and could result in unwarranted exemption approvals. DOE 
notes, the variance process in the final rule does not establish a time 
limit for EH-1's review of contractor variance requests.
    Another question raised by a commenter (Ex. 49) was whether 
exemptions of rule requirements could be incorporated in the contractor 
worker safety and health plan and be approved through CSO approval of 
this plan. The approval authority for a variance is higher than that 
for a written program. Variances may not be approved by incorporating a 
variance request in the worker safety and health program, which is 
reviewed and approved by the Head of DOE Field Element.
    A few commenters (Exs. 28, 37, 45, 51) concerned about a 
potentially lengthy variance approval process, requested that a 
specific time period (e.g., 45 days) be set for DOE to act on an 
exemption request. Some of these commenters were concerned that the 
variance approval process could delay approval of a contractor's worker 
safety and health program, resulting in a temporary facility shutdown. 
As noted in the discussion of subpart B of the final rule, DOE does not 
intend for approval of the contractor's safety and health program to be 
contingent upon or related to approval of outstanding variance request. 
To clarify this intent, DOE has removed a provision from subpart B of 
the final rule that required contractors to identify, in their 
programs, situations for which exemptions were needed. As a result, 
action on variance requests alone will not delay approval of a 
contractor's worker safety and health program.
    A few commenters (Exs. 28, 45, 51) argued that exemption relief 
should not be limited to Subpart C but should be available for relief 
form provisions in all subparts of the rule. DOE disagrees with the 
commenter, however, because the standards listed in section 851.23 of 
the final rule are generally more prescriptive in nature than the other 
programmatic requirements in the rule. For instance, there may be many 
ways for a contractor to meet the intent of a programmatic requirement 
(such as management responsibilities). For this reason, final rule 
section 851.31(a) specifies that the variance process in the final rule 
applies only to the safety and health standards prescribed in final 
rule section 851.23.
    Another commenter (Ex. 13) suggested that the DOE expand the 
exemption process to provide for an exemption of an entire facility 
from one or more requirements, via a single exemption request. This 
commenter felt that such a broad exemptions might be appropriate for a 
facility that is scheduled for closure or transfer of title. DOE 
disagrees with this commenter. The variance process is intended to 
provide relief from a specific requirement due to specific 
circumstances present in a specific work site. The provisions are not 
intended to provide wholesale exemptions from standards at entire 
facilities. DOE notes that the standards mandated in final rule section 
851.23 are consistent with the standards required by DOE Order 440.1A. 
The majority of these standards have been applicable to DOE worksites 
through DOE Order 440.1A and a variety of predecessor orders and 
contract clauses for decades. In addition, DOE believes that sufficient 
flexibility for closure facilities is provided through final rule 
section 851.21(b), which allows contractors to submit to the Head of 
DOE Field Element a list of closure facility hazards that cannot be 
fully abated and/or controlled within 90 days of being identified.
    Section 851.31(b) establishes procedures for processing defective 
variance applications. The Assistant Secretary for Environment, Safety 
and Health can return an application with a written explanation if it 
does not contain the information required to make a determination.
    Section 851.31(c) establishes the required content for a variance 
application. Like the corresponding sections of the previous 
supplemental proposed, final rule sections 851.31(b)(1) through (3) 
specify that a variance application must contain the name and address 
of the contractor, the address of the DOE site(s) involved, and a 
specification of the standard from which the contractor seeks a 
variance.
    Several commenters (Exs. 10, 30, 40, 54, 55, 60, 62) expressed 
concern at the lack of worker notification and involvement in the 
proposed exemption process and requested that when a contractor applies 
for an exemption, the exemption request (and any replies to that 
request) be posted in a designated area in the workplace at the time of 
the request. These commenters noted that worker input should be 
required and solicited, and requested that workers and their 
representatives be fully able to participate in any discussions and 
appeal any decision. After reviewing these comments, DOE has added 
several provisions to the final rule to address these concerns. For 
instance, section 851.31(c)(4) requires that the applications include 
any requests for a conference, which as clarified in final rule section 
851.34 allow contractors and workers to present facts on how they would 
be affected by the variance. In addition, sections 851.31(c)(5) and (6) 
require that the application include a statement that the contractor 
has informed the affected workers of the application through 
appropriate methods, as well as a description of how workers were 
informed of the application and of their right to petition the 
Assistant Secretary of Environment, Safety and Health for a conference. 
Section 851.31(c)(5) further clarifies that appropriate methods for 
notifying workers of the application include giving a copy of the 
application to the workers' authorized representative, posting a 
statement at the place(s) where notices to workers are normally posted, 
giving a summary of the application and specifying where a copy may be 
examined, and other appropriate means.
    One commenter (Ex. 62) believes that the rule should clarify the 
required content for an exemption, and that the required content should 
be based on OSHA's required content for variances. This commenter, as 
well as two others (Exs. 44, 60), also suggested that the proposed rule 
be revised to incorporate OSHA's approach which, according to the 
commenters, requires a clear demonstration that worker safety will not 
be negatively affected by the variance and establishes the procedures 
needed to provide a fair and transparent exemptions process. These 
commenters argued that OSHA's approach permits employers to apply for 
variances, but requires notice to affected employees and the public and 
gives them the opportunity to participate in a hearing. These 
commenters believed that a review process that provides the public, 
affected workers and their representatives, with ample notice and the 
opportunity to have their views considered would help ensure 
transparency, accountability, and integrity in the DOE rule. One of 
these commenters (Ex. 62) further requested a 30-day review period for 
workers and believed that decisions regarding an exemption should be 
published in the Federal Register within 10 days of issuance.
    DOE agrees in part with these requests and, as discussed above, has 
included provisions for worker notification and involvement in the 
variance process in final rule sections 851.31(c)(4) through (6). DOE 
does not agree, however, that parties not impacted by the variance 
request be notified of the application. The final rule, however, does 
not preclude workers from sharing concerns

[[Page 6902]]

with any party regarding workplace safety and health matters at their 
own discretion.
    Section 851.31(d) describes the types of variances for which a 
contractor may apply. These are: Temporary variances, permanent 
variances, and national defense variances. Section 851.31(d)(1) defines 
the purpose of a temporary variance. A temporary variance allows 
contractors a short-term exemption from a workplace safety and health 
standard when they cannot comply with the requirements by the 
prescribed date because the necessary construction or alteration of the 
facility cannot be completed in time or because technical personnel, 
materials, or equipment are temporarily unavailable. To be eligible for 
a temporary variance, a contractor must implement an effective 
compliance program as quickly as possible. In the meantime, the 
contractor must demonstrate to the appropriate Under Secretary and the 
Assistant Secretary for Environment, Safety and Health, that all 
available steps are being taken to safeguard workers. DOE does not 
consider the inability to afford compliance costs to be a valid reason 
for requesting a temporary variance.
    Section 851.31(d)(2) of the final rule establishes the requirements 
for a permanent variance. A permanent variance grants an exemption from 
a workplace safety and health standard to contractors who could prove 
that their methods, conditions, practices, operations, or processes 
provide workplaces that are as safe and healthful as those that follow 
the prescribed standard. To decide whether to recommend granting a 
permanent variance to the appropriate Under Secretary, The Assistant 
Secretary for Environment, Safety and Health reviews the contractor's 
application and, if appropriate, visits the workplace to confirm the 
facts provided in the application. If the request has merit, the 
Assistant Secretary could recommend granting a permanent variance as 
described in final rule section 851.32. Final permanent variance orders 
will detail the contractor's specific responsibilities and requirements 
and explain exactly how the contractor's method varies from the 
regulation's requirement.
    Section 851.31(d)(3) of the final rule establishes the criteria for 
granting a variance from a workplace safety and health requirement for 
reasons of national defense. The Department will use national defense 
variances to grant reasonable exemptions from workplace safety and 
health standard requirements to avoid serious impairment of national 
defense. The contractor must submit a statement showing how the 
conditions, practices, means, methods, operations, or processes used 
would give workers a safe and healthful place of employment in a manner 
that is, to the extent practicable taking into account the national 
defense mission, consistent with the standard form which the variance 
is requested. A national defense variance will only be granted for a 
maximum of six months unless a showing is made that additional time is 
essential to the national defense mission.
    One commenter (Ex. 11) believed that the national defense exemption 
provisions included in the supplemental proposal would create a 
potential ``loop hole'' by allowing practices that would result in 
worker injuries and illnesses in the name of achieving national defense 
``in an efficient and timely manner.'' DOE notes that the NDAA mandates 
flexibility for national defense activities. DOE believes the language 
in the final rule provides such flexibility without creating the 
potential for disregarding the standards set forth in subpart C.
    Another commenter (Ex. 62) acknowledged that national security 
exemptions are warranted, but noted that such exemptions should be 
rare. This commenter believed that national security concerns could be 
addressed directly in the rulemaking, as with DOE's exemption from OSHA 
standards on explosives, through careful writing of the rule. While 
agreeing that national defense variances should be rare, DOE does not 
agree that the need for variances can be removed by more specific rule 
drafting. DOE notes that the provision exempting DOE from OSHA 
standards regarding explosives was included because existing DOE 
explosive safety requirements are more directly relevant to DOE 
operations and thus are more protective of the DOE workforce.
Section 851.32--Action on Variance Requests
    Section 851.32 of the final rule establishes procedures for an 
approval recommendation of a variance application. Specifically, 
section final rule 851.32(a)(1) establishes if the Assistant Secretary 
for Environment, Safety and Health recommends approval of a variance 
application, the Assistant Secretary is required to forward the 
application and the approval recommendation to the Under Secretary. The 
recommendation must include a discussion of the basis for the 
recommendation and any terms and conditions proposed for inclusion as 
part of the approval.
    Section 851.32(a)(2) requires that if the Under Secretary approves 
the variance to notify the Assistant Secretary for Environment, Safety 
and Health who must notify the Office of Price-Anderson Enforcement and 
the appropriate CSO. The CSO is required to notify the contractor. 
Final rule section 851.32(a)(3) requires the Assistant Secretary 
include in the notification a reference to the safety and health 
standard or portion thereof, that is the subject of the application, a 
detailed description of the variance, the basis for the approval and 
any terms and conditions of the approval.
    Section 851.32(a)(4) and (5) establishes that if the Under 
Secretary denies a variance, the Under Secretary must notify the 
Assistant Secretary for Environment, Safety and Health and the CSO who 
must notify the contractor. The notification must include the grounds 
for the denial.
    Section 851.32(b) establishes the approval criteria for a variance 
application. The Assistant Secretary for Environment, Safety and Health 
may recommend to the Under Secretary granting a variance only if the 
variance: (1) Is not inconsistent with section 3173 of the NDAA; (2) 
Would not present an undue risk to worker safety and health; (3) Is 
warranted under the circumstances; (4) Satisfies the requirements of 
Sec.  851.31 of this part for the type of variances requested.
    A few commenters (Exs. 28, 45, 51) believed that the wording in the 
exemption criteria in supplemental proposed rule section 851.301(a)(1) 
should be changed from ``Be consistent with law'' to ``Be consistent 
with applicable law.'' Another commenter (Ex. 29) requested that the 
proposed language in the supplemental notice of proposed rulemaking 
section 851.301(a)(1) be changed to ``Be consistent with the intent of 
the law,'' noting that if a contractor could achieve full compliance 
with the law, an exemption would not be needed. This basic criterion is 
clarified in final rule section 851.32(c)(1), which states that DOE may 
grant a variance only if the variance ``is consistent with section 3173 
of the NDAA not prohibited by law.''
    Another commenter (Ex. 44) requested that the proposed rule be 
revised to explicitly state that there may not be a reduction in worker 
safety through the granting of an exemption, and that the rule should 
require a preponderance of evidence that worker safety will not be 
compromised. The commenter also requested that the rule

[[Page 6903]]

allow adequate determination to be made regarding the effectiveness of 
alternative protective measures and that DOE establish expiration dates 
for approved exemptions, rather than giving the contractors almost 
complete leeway to establish their own exemptions. DOE agrees with this 
commenter and in final rule section 851.32(c)(2) requires a 
determination that the variance would not present an undue risk to 
worker safety and health prior to the Under Secretary granting the 
variance.
    One commenter (Ex. 39) requested that the rule make clear that 
hazards that are inherent to the work being performed are excluded from 
the provision that states that an exemption must be free of recognized 
hazards. DOE has removed the language stating that the exemption must 
be free of recognized from the variance criteria established in the 
final rule. DOE notes, however, that contractors are required by 
section 851.32(c) to demonstrate that alternate controls will provide a 
workplace that is as safe and healthful as that required by the 
standard and also requires a determination that the variance will not 
present an undue risk to worker safety and health. These sections 
clarify the Department's intent that variances not diminish protection 
provided to the DOE workforce.
    Section 851.31(c) establishes procedures for the Assistant 
Secretary for Environment, Safety and Health to recommend denial of an 
application. If denial is recommended, the Assistant Secretary is 
required to give prompt notice to the CSO, who must either notify the 
contractor that the application is denied or, if the CSO disagrees with 
the recommendation, forward the application, the recommendation, the 
statement of the grounds for denial, and a written statement explaining 
the basis for disagreement with the Assistant Secretary's decision to 
the appropriate Under Secretary who will review the package and make a 
decision. All denial notices must include, or be accompanied by, a 
brief statement of the grounds for the denial, as required by section 
851.31(c)(4) of the final rule. A denial of an application pursuant to 
this paragraph shall be without prejudice to submitting of another 
application.
    Section 851.32(d) establishes the grounds for denial of a variance 
application. A variance application can be denied: (1) When enforcement 
of the violation would be handled as a de minimis violation; (2) when a 
variance is not necessary, for example, when an interpretative ruling 
is granted on a specific standard or portion thereof; (3) when there is 
a situation that does not meet the requirement for a variance set forth 
in the approval criteria.
Section 851.33--Terms and Conditions
    Section 851.33 establishes the required terms and conditions of an 
approved variance. The section establishes that a variance may contain, 
but is not limited to, provisions that limit its duration, require 
alternative action, require partial compliance, or establish a schedule 
for full or partial compliance. No comments were submitted on the 
corresponding provisions of the supplemental notice of proposed 
rulemaking during the public comment period.
Section 851.34--Requests for Conferences
    Section 851.34 allows for a worker to request a conference. Any 
affected contractor or worker may file a request for a conference on 
the application with the Assistant Secretary for Environment, Safety 
and Health. A request must include a statement showing how the 
contractor or worker would be affected by the variance applied for, the 
specification in the application that is denied and a summary of 
evidence in support of each denial, and any views or arguments on any 
issue of facts or law presented.
    As discussed in section 851.31(b), several commenters (Ex. 10, 30, 
54, 55) believed that worker input should be required and solicited, 
and requested that workers and their representatives be fully able to 
participate in any discussions and appeal any decision. DOE agrees with 
this request and incorporated worker notification requirements and 
worker rights to petition for a conference into the final rule.
    Section 851.34(c) of the final rule, allows the Assistant Secretary 
for Environment, Safety and Health, or its designee, to determine 
whether to meet with an affected contractor or worker.

F. Subpart E--Enforcement Process

    Subpart E of this rule describes how DOE will enforce the rule's 
worker safety and health program requirements. Specifically, the 
subpart outlines the rights and responsibilities of DOE and contractors 
during inspections, investigations, and resulting enforcement actions. 
The enforcement options available to DOE are designed to provide a 
flexible framework that encourages settlement of enforcement 
proceedings while prescribing clear, timely communication between DOE 
and contractors throughout all phases of enforcement activities.
    DOE received support for the elements of the enforcement program 
from several commenters, who generally view DOE's approach as 
reasonable and sound. One commenter (Ex. 51) strongly agreed with the 
enforcement process of the supplemental proposal and expected that the 
self-auditing process would create positive incentives for contractors 
to self-identify and correct hazards. Additionally, this commenter 
found the enforcement process's purpose and procedures to be clearly 
defined, as were the classifications and categories of violation 
severity levels.
    Other commenters requested clarification of various points of the 
rule. For instance, one commenter (Ex. 5) asked DOE to clarify whether 
only deviations from the rule could result in financial penalties. The 
commenter suggested that ``it would be better to use the preliminary 
hazard analysis (PHA) process such that fines and penalties could be 
imposed if sites violated technical safety requirements.'' DOE presumes 
that this commenter is distinguishing between deviations from the 
letter of the rule and deviations from their approved written program. 
In fact, DOE intends for both the approved worker safety and health 
program and the applicable requirements of Subpart C to be enforceable. 
DOE recognizes that violations of standard requirements may be the 
result of worker safety and health program failures. In these instances 
worker safety and health program failures may be cited.
    Another commenter (Ex. 6) suggested that safety and health-related 
enforcement should be performed by OSHA rather than DOE. In its view, 
DOE does not have the capabilities (e.g., certified occupational safety 
and health inspectors) to enforce the rule. DOE agrees that a qualified 
staff is an important component of an effective enforcement program and 
notes that DOE, through authority granted under the AEA of 1954, has 
enforced occupational safety and health requirements through contracts 
on DOE sites since its inception. Section 3173 of the NDAA mandates DOE 
to promulgate this rule to provide a regulatory enforcement and civil 
penalty mechanism. The Office of Price-Anderson Enforcement is staffed 
with trained, qualified professionals capable of performing enforcement 
inspections and investigations.
    Several of the comments (Exs. 12, 13, 37) sought clarification of 
certain aspects of the enforcement process. For instance, one commenter 
(Ex. 13) found some of the terminology (e.g., ``deception,'' 
``willfulness,'' ``gross negligence'') too subjective for use in

[[Page 6904]]

determining the severity of violations. The commenter suggested that 
further guidance is needed to clearly define the DOE's intended 
enforcement of the rule. Clear definitions were also requested by a 
commenter (Ex. 37) who suggested that DOE adopt provisions from OSHA's 
enforcement processes on severity of findings, threshold criteria for 
appeals, and an independent and equitable appeals process. Another 
commenter (Ex. 12) felt the rule did not clearly indicate how potential 
violations would be identified and screened. This commenter suggested 
that DOE develop compliance directives such as those used by OSHA. DOE 
agrees that enforcement guidelines with clearly defined terminology 
will aid the Department in ensuring fair and consistent enforcement. 
DOE has revised Appendix B of the final rule (previously Appendix A of 
the supplemental proposed rule) to clarify severity levels, and final 
rule section 851.44 clearly describes the administrative appeals 
process. Additionally, DOE intends to publish enforcement guidance 
supplements (EGS) that, coupled with Appendix B to the final rule, will 
further guide the enforcement process.
    A commenter (Ex. 16) concerned specifically with the Noncompliance 
Tracking System (NTS) process and NTS reporting thresholds suggested 
that DOE use an enforcement process similar to that used for the 
enforcement of Price-Anderson Amendment Act (PAAA). This commenter 
indicated that DOE could benefit from its experience of implementing 
the PAAA process over the past 10 years, particularly by integrating 
costly NTS reporting with Occurrence Reporting and Processing System 
(ORPS), making use of fully integrated contractor management systems 
(as in draft DOE Order 226.1), following the Nuclear Regulatory 
Commission (NRC) precedents by eliminating subjective NTS reporting 
thresholds, and encouraging contractors to shift from ``event driven'' 
to ``assessment driven'' reporting. While not opposed to further 
clarification of NTS reporting thresholds, DOE notes that the DOE 
community has experience in implementing tracking programs. Contractors 
have long been responsible for recording and analyzing occupational 
safety and health (OSH) noncompliances and tracking abatement progress 
as required by DOE Order 440.1A. To help refine the process under the 
final rule, the Office of Price-Anderson Enforcement plans to develop 
and publish in appropriate EGSs, thresholds for voluntary contractor 
reporting of noncompliances into NTS. The Office of Price-Anderson 
Enforcement expects to periodically adjust the thresholds as additional 
experience is gained under the final rule. Also, this office will 
incorporate lessons learned from the reporting of nuclear violations 
into NTS.
    Several commenters (Exs. 31, 37, 42, 57, 58) expressed concern that 
the proposed rule would not provide for defenses that are commonly 
applied to American industry in OSHA enforcement proceedings. These 
commenters offered specific examples, including defenses related to a 
standard being ``unenforceably vague,'' lack of employee endangerment, 
lack of employer knowledge of a hazard, technological or economic 
feasibility of abatement for noise and toxic substance hazards or 
regulatorily proposed mitigation plans, unpreventable or unforeseeable 
employee misconduct, lack of employer control over a hazard, and 
emergency conditions. DOE recognizes the value of additional guidance 
on these matters but notes that affirmative defenses from OSHA 
citations are not built into the regulatory text of the OSHA standards 
as suggested by some of the commenters. Such defenses are instead 
discussed in OSHA's enforcement guidance, including the Field 
Inspection Reference Manual. The defenses commonly addressed in OSHA 
guidance include unpreventable employee misconduct, impossibility, 
greater hazard, and multi-employer workplaces. DOE intends to follow a 
similar approach by incorporating guidelines on these types of 
affirmative defenses in appropriate EGSs to the extent these defenses 
are appropriate for DOE. Another commenter (Ex. 11) suggested that the 
rule should contain details of an inspection targeting process that 
outlines the procedures DOE will use as the criteria for selecting 
facilities for inspection. The commenter indicated that OSHA has 
published criteria of this type, which are used to ensure effective use 
of limited enforcement resources. DOE does not agree with this comment. 
There is no statutory requirement that DOE outline its process for 
identifying and prosecuting violations of the Part 851. Such a process 
would interfere with the discretion necessary to effectively implement 
the statutory mandate. However, as previously mentioned, DOE does 
intend to develop EGSs that will present guidelines for the enforcement 
process. The Office of Price-Anderson Enforcement expects to adapt many 
of OSHA's inspection protocols to the unique DOE enforcement regime.
    DOE received several comments that questioned whether DOE can 
effectively regulate contractors to the extent indicated by this part. 
For example, a commenter (Ex. 6) questioned whether DOE would enforce 
this regulation for its Headquarters (HQ), regional, or site offices, 
and suggested that HQ will need to set up an independent oversight 
office. These commenters may not be aware that the Office of Price-
Anderson Enforcement, which has independent oversight authority, 
currently enforces nuclear safety requirements, will expand its 
enforcement function to include enforcement of the worker safety and 
health provisions of this rule.
    Another commenter (Ex. 13) described the enforcement policy as 
establishing a highly complex nuclear safety process that far exceeds 
what OSHA expects of the industrial sector. DOE disagrees with this 
statement. The worker safety and health program implemented in the 
final rule is based on the program management provisions established in 
DOE Order 440.1A and its predecessor orders to address occupational 
safety and health at DOE facilities. The worker safety and health 
program was based in large measure on the OSHA Voluntary Safety and 
Health Management Guidelines published in 1989. Accordingly, DOE 
believes that the provisions of the final rule are generally consistent 
with what OSHA expects of effective worker safety and health programs 
in the private sector.
    Compliance costs and accounting were a concern for several 
commenters. Two of these commenters (Exs. 31, 48) felt that DOE 
enforcement will result in increased cost to contractors ``to respond 
to new and extensive enforcement activities.'' DOE disagrees. 
Contractors with effective integrated safety management programs, which 
incorporate both nuclear safety and worker safety and health programs, 
have little to worry about. The Office of Price-Anderson Enforcement 
intends to enforce both nuclear and worker safety and health programs 
from the same office, using similar operating principles. The Office of 
Price-Anderson Enforcement will most likely consider enforcement action 
in significant situations. Another commenter (Ex. 29) suggested that--
for the purposes of the Major Fraud Act--the rule should include a 
provision stating when the contractor must begin segregating the costs 
of responding to a DOE safety and health investigation, since these 
costs will not be recoverable if a violation is confirmed. DOE has 
significant experience with the Major Fraud Act in

[[Page 6905]]

connection with the implementation of part 820. Accordingly, the same 
procedures and requirements that DOE has already successfully applied 
to enforcement actions under 10 CFR part 820 will apply to enforcement 
actions under 10 CFR part 851.
    DOE received a number of comments in addition to those discussed 
above that recommended that DOE incorporate various aspects of OSHA's 
enforcement program. A few commenters (Ex. 29, 37, 47) believed that 
DOE should use an enforcement process based on OSHA to better serve the 
needs of worker safety and health. For instance, one commenter (Ex. 37) 
felt strongly that an ``OSHA approach to safety enforcement'' is more 
appropriate and better understood by DOE management and operating 
contractors and subcontractors than the nuclear safety enforcement 
approach proposed in the rule. The commenter suggested that DOE 
consider relying upon OSHA enforcement guidance and case law for 
determining violations and penalties under the DOE rule, particularly 
in regard to the General Duty Clause and affirmative action defenses. 
DOE does not agree with this commenter's assertion that contractors are 
unfamiliar with the enforcement approach in this rule. This rule will 
apply to contractors and their subcontractors, just as the nuclear 
safety rules apply. Therefore, these parties should already be familiar 
with the enforcement regime and the flow down of requirements. Two 
other commenters (Exs. 38, 57) believe that, unlike the OSHA 
enforcement process, the DOE enforcement process in the supplemental 
notice of proposed rulemaking would not afford contractors the right to 
a hearing with the ability to present witness testimony before 
penalties are assessed. DOE disagrees and notes that the final rule 
gives contractors several opportunities to contest notices of violation 
and provide evidence (including witness testimony) to support their 
position. These opportunities include the right, under final rule 
section 851.44, to an administrative appeal to the Office of Hearings 
and Appeals in accordance with 10 CFR 1003, Subpart G, which 
establishes procedural regulations for the DOE Office of Hearings and 
Appeals with respect to private grievances and redress.) The procedures 
under 10 CFR 1003.77 also allow petitioners to seek further judicial 
review of the final order issued by the Office of Hearings and Appeals.
    Another commenter (Ex. 42) expressed concern that the supplemental 
notice of proposed rulemaking does not address whether DOE will use 
contractor self-assessments as a basis for enforcement actions. This 
commenter recommended that DOE adopt OSHA's policy regarding the 
treatment of voluntary employer safety and health self-audits. DOE 
notes that contractors are responsible for identifying and tracking 
noncompliances. The Office of Price-Anderson Enforcement does not 
intend to routinely ask to see contractor self-assessment reports for 
the purpose of identifying noncompliances; however, the Office may 
review such documents during the course of a program review or during 
an investigation prompted by an event such as an accident, recurring or 
repetitive condition, or programmatic failure.
    One commenter (Ex. 48) suggested that ``The overall effect of this 
rule * * * as written will be to burden both the Government and its 
contractors with a potentially massive reporting and analysis effort. 
Contractors will be compelled to report each variation in standard 
compliance and the DOE enforcement and investigative arm [will be 
compelled] to read and screen all reports for NOV issue.'' It appears 
to DOE that this commenter assumes that a contractor may have a 
significant number of noncompliances on the effective date of this 
rule. This should not be the case since contractors should already be 
in compliance with DOE Order 440.1A, which provides the basis for this 
final rule. Noncompliances that existed in the past should have been 
identified, analyzed, and tracked through abatement. Any noncompliances 
that still exist, should already be in the contractors' tracking 
systems. The magnitude of emerging noncompliances should not overwhelm 
reporting systems.
    The same commenter (Ex. 48) also views the rule as providing only 
punitive compliance mechanisms. The commenter argued that relying only 
on punitive measures will reverse the successful partnering of DOE and 
its contractors that has achieved significant safety and health 
performance in recent decades. The commenter suggested that the DOE 
rule will shift the focus of contractor worker safety and health 
practice to policing for conditional violations and away from 
successful proactive programs. DOE disagrees, believing instead that 
this rule is more likely to enhance the relationship between DOE and 
its contractors. DOE contractors have already made contractual 
commitments to perform their work in accordance with DOE's safety and 
health requirements as established in DOE Order 440.1A. The rule will 
only clarify and strengthen both DOE's and the contractor understands 
of the requirements.
Section 851.40--Investigations and Inspections
    Section 851.40 establishes DOE's right to conduct investigations 
and inspections to confirm contractor compliance with the rule and 
describes the steps DOE must take when performing an investigation or 
inspection. The section also gives contractors certain rights and 
responsibilities during inspections and investigations.
    Section 851.40(a) gives the Director the right to take any actions 
necessary to conduct inspections and investigations of contractor 
compliance with health and safety program requirements. In order to 
conduct these inspections, DOE enforcement officers have the right to 
prompt entry into worksites.
    One commenter (Ex. 42) indicated that DOE must establish clear 
procedures for OE to carry out investigations and enforcement actions. 
This commenter believed that these procedures should specify what 
events will trigger an informal conference and subsequent enforcement 
action and whether Type A and B investigations will be used as the 
basis for legal action. Again, DOE finds that it is more appropriate to 
establish inspection protocols EGSs. These EGSs, coupled with Appendix 
B to the final rule, will guide the enforcement process and address the 
issues raised by the commenter. The Office of Price-Anderson 
Enforcement will use all available information in exercising its 
enforcement authority.
    A second commenter (Ex. 5) inquired whether the Office of Price-
Anderson Enforcement is considering revising the existing guidance 
provided in the Operational Procedures (Identifying, Reporting, and 
Tracking Nuclear Safety Noncompliances Under PAAA, June 1998 edition) 
or if the Office will develop a stand-alone guidance document for the 
review and reporting determination of potential non-compliances. As 
stated above, the Office of Price-Anderson Enforcement intends to 
provide EGSs that will cover NTS reporting thresholds.
    A number of commenters (Exs. 11, 16, 28, 29, 35, 36, 37, 43, 45, 
47, 51) expressed the opinion that Voluntary Protection Program (VPP) 
sites should not be subject to programmed inspections or should qualify 
for a reduction in inspections. DOE agrees that VPP sites are likely to 
have the best worker safety and health programs and be in substantial 
compliance with the

[[Page 6906]]

provisions of this rule. Nevertheless, DOE believes it is important 
that VPP sites be subject to all of the provisions of this rule. The 
Office does not expect these sites to have many NTS-reportable 
violations, but the Office will respond as necessary to significant 
violations and develop appropriate programmed inspection strategies.
    One commenter (Ex. 31) asked whether inspection and investigation 
authority will be delegated to the field or site office level. 
Enforcement authority rests with the Office of Price-Anderson 
Enforcement and will not be delegated to the field or site office 
levels. DOE does not, however, intend to interfere with inspection and 
investigation activities conducted by the field or site offices. A 
commenter (Ex. 32) suggested that the rule address how the Office of 
Price-Anderson Enforcement will take the results of inspections that 
are performed at DOE sites by the Office of Independent Oversight and 
Performance Assurance's Office of Safeguards and Security Evaluations 
(OA-10) and EH's Office of Quality Assurance Programs (EH-31), into 
account when determining the frequency and necessity of its own 
inspections. The Office of Price-Anderson Enforcement will use all 
available information, from any source, in developing enforcement 
protocols and plans, and making enforcement decisions.
    Section 851.40(b) requires contractors to cooperate with DOE 
throughout enforcement activities. DOE received no comments on section 
851.40(b) during the public comment period.
    The right of a worker or worker representative to request an 
investigation is included in final rule section 851.40(c). Although the 
worker may remain anonymous, the investigation request should identify 
the activity of concern as specifically as possible and include 
supporting documentation. Several commenters (Exs. 30, 54, 55, 60) 
suggested that persons requesting investigations or inspections be 
allowed to remain anonymous. DOE agrees, final rule section 851.40(c) 
now includes a provision establishing a worker's or worker 
representative's right to remain anonymous upon filing a request for an 
inspection or investigation.
    Two commenters (Exs. 26, 39) asked DOE to clarify that it is up to 
the Director to determine whether a complaint will be investigated and 
suggested changing the subject of this paragraph from ``any person'' to 
a ``covered worker.'' The commenters thought such a change would avoid 
the implication that DOE will investigate all complaints, even those 
made by a private citizen who called with an investigation request. DOE 
agrees that the original language in supplemental proposed section 
851.400(c) too board. Accordingly, final rule section 851.40(c) 
clarifies DOE's intent to allow workers or their representatives the 
opportunity to request an investigation or inspection of a specific 
work place safety and health concern. DOE intends to respond to all 
worker and worker representative requests for investigation or 
inspection, at least to the extent needed to determine if further 
action is necessary or warranted. If the initial investigation reveals 
that further investigation or inspection is unwarranted, the Director 
may, under final rule section 851.40(i), close the investigation.
    It is important to note that the Office of Price-Anderson 
Enforcement expects that workers or worker representatives will have 
first presented their concerns through their respective Employee 
Concerns Programs (ECPs), but without satisfactory resolution. Several 
related comments (Exs. 31, 36, 42, 48) suggested that this rule 
recognize the ECP and contractor management as an avenue to resolve 
concerns involving safety matters. Two of these commenters (Exs. 31, 
48) indicated that if the issue cannot be resolved, then the worker 
should be able to request an investigation but not an inspection; they 
argued that a request for inspection should be handled only through the 
established ECP program or contractor management chain of command.
    DOE notes that final rule sections 851.20(a)(6) through (9) 
establish provisions for contractors to develop and implement 
procedures allowing workers to express concerns regarding workplace 
hazards and for contractors to respond to those concerns. While DOE 
intends for workers to explore these avenues first, DOE does not feel 
it is appropriate to restrict a worker's right to request an inspection 
or investigation by requiring them to try these other options first. 
DOE disagrees with the comment that inspections should be limited to 
the ECP or contractor chain of command. Onsite inspections often are a 
necessary part of an investigation and may give the Office of Price-
Anderson Enforcement the best opportunity to verify whether a violation 
or noncompliance exists.
    Two commenters (Exs. 54, 55) asked that employees and their 
representatives be given the right to accompany the inspector under 
supplemental proposed section 851.400(c). One of these commenters (Ex. 
54) stated that this section would not give workers or their 
representatives the right to be involved in any part of the inspection, 
except the right to accompany an inspector under supplemental proposed 
section 851.10(b)(4). DOE notes that final rule section 851.20(b) 
establishes the right for a worker representative to accompany the 
Director during the physical inspection of the workplace. If a 
representative is not available, the Director must consult, as 
appropriate, with employees on matters of worker safety and health. 
During an evaluation of a noncompliance or an inspection, the Office of 
Price-Anderson Enforcement normally interviews individuals with direct 
knowledge of the workplace to gather information such as frequency of 
exposure, duration of exposure, and other details. The Office of Price-
Anderson Enforcement expects that, through this process, the 
appropriate people would be consulted.
    One of the commenters (Ex. 54) was also concerned that a worker's 
ability to request and receive copies of inspections and accident 
investigations in accordance with ISM and with supplemental proposed 
section 851.10(b)(4) may be curtailed by portions of this section. DOE 
disagrees and notes that final rule section 851.20(b), which mirrors 
the worker rights provisions of DOE Order 440.1A, clearly establishes 
that workers have the right to obtain results of inspections and 
accident investigations, as described in final rule section 
851.20(b)(6).
    When a contractor becomes the subject of an investigation or 
inspection, final rule section 851.40(d) requires the Director to 
inform the contractor in writing. The written notification must 
describe the purpose of the action and be provided at the initiation of 
the investigation or inspection process.
    Three commenters (Exs. 28, 45, 51) requested that DOE revise 
supplemental proposed section 851.400(d) to require the Director to 
notify a contractor in writing prior to the initiation of a proceeding 
under the Major Fraud Act. A fourth commenter (Ex. 36) asked whether 
this section would change the Office of Price-Anderson Enforcement's 
practice in defining a ``proceeding'' under the Major Fraud Act. DOE 
has significant experience with the Major Fraud Act in connection with 
the implementation of part 820. Accordingly, the same procedures and 
requirements that DOE has already successfully applied to enforcement 
actions under 10 CFR part 820 will apply to enforcement actions under 
10 CFR part 851.
    A commenter (Ex. 47) suggested that DOE indicate in the rule that 
all information pertaining to the investigation or inspection that is 
in the

[[Page 6907]]

possession of DOE will be provided to the contractor at the initiation 
of the investigation or inspection. Although DOE generally provides 
such information to contractors, the Office of Price-Anderson 
Enforcement must retain the right not to disclose certain information 
if it believes the information may interfere with the willingness of 
individuals to step forward on a confidential basis or if sharing the 
information will hinder the Office's enforcement activities. Therefore, 
DOE is not adopting this suggestion.
    Section 851.40(e) prohibits DOE from releasing to the public any 
information obtained during an investigation or inspection, unless the 
Director authorizes the public disclosure of the investigation. Once 
the Director authorizes public disclosure for an investigation, the 
information associated with the investigation is a matter of public 
record. Prior to and disclosure, DOE must determine that disclosure is 
not precluded by the Freedom of Information Act (FOIA), 5 U.S.C. 552, 
and Part 1004 of this title.
    DOE received several comments expressing concern about the 
Director's discretion to authorize or withhold public disclosure of 
information related to an investigation. Three commenters (Exs. 26, 39, 
48) wondered whether the Director's discretion overrides FOIA, Privacy 
Act, and judicial determinations of what otherwise might remain 
confidential or be required to be released. These commenters were 
particularly concerned about protection of classified project or 
proprietary information. Two of these commenters (Exs. 39, 48) 
expressed similar concerns about supplemental proposed section 
851.400(f), which addressed requests for confidential treatment of 
information. DOE recognizes these concerns and confirms that the 
Director's actions with respect to release of documents are always 
subject to the constraints of law. Final rule section 851.40(e) or 
851.40(f) has been revised to clarify that disclosure of information is 
subject to the Freedom of Information Act.
    Section 851.40(f) clarifies that a request for confidential 
treatment of information under the Freedom of Information Act (FOIA), 
does not prevent disclosure of the information if the Director 
determines the release is in the public interest and is permitted or 
required by law.
    During an investigation or inspection, final rule section 851.40(g) 
allows any contractor to submit to DOE any information that the 
contractor feels explains the contractor's position or is relevant to 
the investigation or inspection. DOE received no comments on section 
851.40(g) during the public comment period.
    Section 851.40(h) permits the Director to convene, and require a 
contractor to attend, an enforcement conference to discuss any 
information related to a situation that might be a violation of a 
requirement in this part. Conference discussions might include, but are 
not limited to, the significance or causes of a violation, corrective 
action taken or not taken by the contractor, and mitigating or 
aggravating circumstances. DOE will not make a transcript and the 
conference is not normally open to the public.
    Two commenters (Exs. 31, 48) indicated that informal conferences 
should never be open to the public since it would hinder open dialogue 
and the cooperative nature of the conference. DOE agrees that 
enforcement conferences should not normally be open to the public, but 
believes that this is a matter that is appropriately within the 
discretion of the Director. This provision is consistent with the 
Office of Price-Anderson Enforcement nuclear safety enforcement 
provisions and practices.
    The same commenters (Exs. 31, 48) also noted that if the Director 
can compel contractor attendance at the informal conference, then the 
``official enforcement process'' has begun at that point and the 
contractor should attend with legal counsel present. DOE has 
significant experience with the Major Fraud Act in connection with the 
implementation of part 820. Accordingly, the same procedures and 
requirements that DOE has already successfully applied to enforcement 
actions under 10 CFR part 820 will apply to enforcement actions under 
10 CFR part 851. With respect to the ``conferences,'' DOE has 
determined that it is appropriate to retain the term ``informal 
conference'' to retain consistency with section 820.22.
    Another commenter (Ex. 47) asked that contractors be allowed to 
request informal conferences. DOE agrees; final rule Appendix B 
(``General Statement of Enforcement Policy''), paragraph VII (d) 
clarifies that a contractor may request an enforcement conference.
    Section 851.40(i) permits the Director to close the investigation 
or inspection if facts show that further action is unwarranted. Two 
commenters (Exs. 31, 48) suggested that when the Director closes an 
investigation due to lack of factual evidence or if evidence shows no 
violation, then the matter should be closed without prejudice and may 
not be reopened by the Director. DOE notes that the Director has the 
authority to initiate or close an investigation. If facts presented or 
discovered during the investigation indicate that further action is 
unwarranted, then the Director may close the investigation without 
prejudice. If, after the initial investigation is closed, facts are 
discovered which indicate that the investigation should be reopened or 
reconvened, then the Director may reopen the investigation.
    Section 851.40(j) allows the Director to issue enforcement letters 
that state DOE's expectations with respect to any aspect of the 
requirements of Part 851. The enforcement letter, however, may not 
create the basis for a legally enforceable requirement pursuant to this 
part. One commenter (Ex. 29) inquired whether supplemental proposed 
section 851.400(j) should have used the term ``Enforcement Guidance 
Supplements'' rather than ``enforcement letters.'' DOE disagrees 
because the two terms are separate and distinct. Enforcement letters 
are issued in cases where DOE decides that an enforcement action is not 
required, but concludes that it is important to communicate a 
particular message to the contractor. An enforcement letter is a 
vehicle to highlight actions taken by the contractor that were 
appropriate and that formed the basis for not taking more formal 
enforcement actions. The enforcement letter will also usually identify 
areas (1) that may have been less satisfactory than desired but not 
sufficiently serious to warrant enforcement action, and (2) in which 
contractor attention is required to avoid a more serious condition that 
would require enforcement action. An enforcement letter may also 
highlight noteworthy contractor practices. EGSs, on the other hand are 
issued periodically by the Office of Price-Anderson Enforcement to 
provide clarifying guidance regarding the processes used in enforcement 
activities. EGSs provide information or recommendations only and impose 
no requirements or actions on DOE contractors.
    Section 851.40(k) permits the Director to sign, issue, and serve 
subpoenas. For NNSA sites, this responsibility is assigned to the NNSA 
Administrator in final rule section 851.45(a). Several commenters (Exs. 
28, 45, 51) argued that this provision would present an apparent 
conflict of interest if the investigator can become party to the 
judicial process by signing, issuing, and serving subpoenas. DOE 
disagrees with this concern and notes that the Director and NNSA 
Administrator have each been given subpoena authority within their 
statutory purview.

[[Page 6908]]

Section 851.41--Settlement
    Section 851.41 encourages settlement of DOE enforcement proceedings 
and establishes a basic framework within which settlements shall 
proceed. This section presents the rights and duties of the Director 
and contractors seeking to resolve issues through a consent order.
    Section 851.41(a) states that DOE encourages settlement of any 
enforcement proceeding, if settlement is consistent with Part 851. At 
any time, the Director and contractor may hold a settlement conference, 
which will not be recorded in a transcript or open to the public.
    Section 851.41(b) allows the Director to use a consent order to 
resolve issues in an outstanding proceeding. The consent order must set 
forth the relevant facts, terms, and remedies to which the parties 
agree and must be signed by both parties. The order need not find or 
admit that a violation occurred, but shall constitute a final order.
    DOE did not receive any comments specific to section 851.41(a) or 
851.41(b), but did receive three comments that relate to 851.41 as a 
whole. One commenter (Ex. 30) was concerned that enforcement actions 
that require funding to abate hazards pose a ``special challenge to a 
self regulated entity.'' The commenter believes that such actions 
should not be settled unless the settlement contains a resource-loaded 
plan that will ensure implementation. DOE notes that DOE field 
management are involved in all decision making related to enforcement 
actions, and settlement negotiations include appropriate cost 
considerations. The same commenter was joined by another (Exs. 30, 54) 
in suggesting that DOE should allow workers and unions to elect party 
status in an enforcement proceeding and to participate in settlement 
negotiations, as is allowed by OSHA. The second commenter (Ex. 54) also 
objected to the fact that the supplemental proposed rule would permit 
all settlement records to be kept secret and would provide no appeal 
right on the settlement. DOE disagrees with these commenters and does 
not intend to provide this opportunity. The Director is responsible for 
carrying out the intent of enabling legislation as delegated by the 
Secretary. A commenter (Ex. 45) requested that DOE define the term 
``settlement.'' After carefully reviewing this comment, DOE believes 
the settlement process is adequately described in final rule section 
851.41 and need not be separately defined. The final rule does define 
the outcome of a settlement (that is, a consent order), in section 
851.3.
Section 851.42--Preliminary Notice of Violation
    Section 851.42 permits the Director to issue a preliminary notice 
of violation (PNOV) to the contractor if the Director believes that a 
violation of this part has occurred. The section lists the specific 
information that must be included in the PNOV and in the contractor's 
reply. The PNOV constitutes a final order with no right of appeal if 
the contractor fails to reply within 30 days. Once final, the PNOV must 
be posted.
    DOE received two general comments regarding section supplemental 
proposed section 851.402. In the first, three commenters (Exs. 54, 55, 
60) noted that the supplemental proposal contained no requirement to 
post notifications of violation. Two of these commenters (Exs. 54, 55) 
were also concerned that the section provided no right of worker or 
union appeals or for worker or union involvement in any way in the 
process. DOE agrees that it is appropriate for workers or their 
representatives to play a role in the process and has revised the rule 
to facilitate their participation. In the final rule, section 
851.20(b)(5) gives worker representatives the right to accompany the 
Director during inspections or, if a representative is not available, 
requires inspectors to consult employees on matters of health and 
safety. Section 851.20(b)(6) gives workers the right to request and 
receive results of inspections and accident investigations. DOE also 
has included in section 851.42(e) a requirement that PNOVs be posted 
once they are final.
    A commenter (Ex. 28) argued that a contractor should give greater 
weight to an OSHA decision involving an interpretation of an OSHA 
standard than to a DOE interpretation of the same standard. DOE notes 
that OSHA interpretations of OSHA standards will be considered valid 
unless directed by DOE General Counsel. However, DOE reserves the right 
to deviate from an OSHA interpretation when it applies to a unique 
operation at a DOE site. In such cases, DOE will issue its own 
interpretation for purposes of implementing the DOE worker safety and 
health program.
    Section 851.42(a) authorizes the Director to issue a PNOV. The PNOV 
must include specific information under section 851.42(b), including as 
the facts on which the alleged violation is based, proposed remedies 
and civil penalties, and a statement obliging the contractor to reply 
in writing within 30 days. Section 851.42(c) requires that the 
contractor's reply cover the relevant facts, any extenuating 
circumstances, and answers to questions set forth in the PNOV. Under 
section 851.42(d), if the contractor fails to submit a reply and all 
supporting documents within the allowed time, the contractor 
relinquishes the right to appeal the PNOV. Section 851.42(e) requires 
that the PNOV be prominently posted in the area where the violation 
occurred until the violation is corrected.
    DOE did not receive comments related specifically to sections 
851.42(a) through (e) during the public comment period.
Section 851.43--Final Notice of Violation
    Section 851.43 requires the Director to review a contractor's 
timely written reply to a preliminary notice of violation (PNOV). If 
the Director determines that a violation occurred, this section allows 
the Director to issue a final notice of violation that includes 
specific information listed by this section. Unless the contractor 
petitions the Office of Hearings and Appeals, the final notice 
constitutes a final order. Section 841.43(a) establishes that the 
Director will review and make a final determination regarding a 
contractor's timely reply to a PNOV. If the Director determines that a 
violation has occurred or is continuing to occur, the Director may 
issue the contractor a final notice of violation as described by 
section 841.43(b). Specifically, the final notice must state that the 
contractor may petition the Office of Hearings and Appeals in 
accordance with 10 CFR Part 1003, subpart G.
    One commenter (Ex. 47) recommended that supplemental proposed 
sections 851.403 and 851.404 be revised to provide for appeals to 
Administrative Law Judges (ALJs), following the PAAA process contained 
in 10 CFR 820, rather than to DOE's Office of Hearings and Appeals. DOE 
has not accepted this comment, because initial decisions based on an 
evidentiary record are prepared by the Office of Price-Anderson 
Enforcement. Therefore, a trial de novo (new trial) is unnecessary and 
the Office of Hearings and Appeals is the appropriate forum to which 
appeals may be referred.
    Under section 841.43(c), a contractor relinquishes any right to 
appeal if the contractor fails to make a timely petition for review of 
a final notice of violation. In the absence of a petition for review 
the final notice becomes a final order.
Section 851.44--Administrative Appeal
    Section 851.44 establishes the right of a contractor to petition 
the Office of Hearings and Appeals for review. Section 851.44(a) 
describes this right,

[[Page 6909]]

which must be exercised within 30 calendar days of receipt of the final 
notice of violation. Section 851.44(b) clarifies that in order to 
exhaust final remedies; the contractor must make such a petition in 
accordance with section 851.44(a).
    DOE received several general comments on the review process. 
Several commenters (Exs. 15, 31, 47) suggested that a third party 
reviewer (not DOE) should handle contractors' petitions instead of the 
Office of Hearings and Appeals. These commenters recommended that 
contractors be given an opportunity to challenge a proposed civil 
penalty either before an ALJ or in a U.S. District Court, as provided 
for in 10 CFR 820. The commenters pointed out that ALJs routinely hear 
OSHA cases and have a greater familiarity with OSHA requirements and 
case law. One of these commenters (Ex. 15) went on to suggest that DOE 
establish a small independent review commission as a final step in the 
administrative review process, as is used effectively by OSHA. A 
related comment (Ex. 61) inquired whether the final rule would provide 
a mechanism for contesting or overturning potential findings that a 
contractor believes to be technically inaccurate. As discussed with 
regards to final rule section 851.43, the Office of Price-Anderson 
Enforcement prepares initial decisions based on an evidentiary record. 
Therefore, a trial de novo (new trial) is unnecessary and the Office of 
Hearings and Appeals is the appropriate forum to which appeals may be 
referred.
Section 851.45--Direction to NNSA Contractors
    Section 851.45 establishes that for NNSA contractors, it is the 
NNSA Administrator, rather than the Director, who issues subpoenas and 
notices. Section 851.45(a) gives the NNSA Administrator authority to 
sign, issue, and serve subpoenas, orders, disclosures, preliminary 
notice of violations, and final notices. The Administrator must 
consider the Director's recommendation.

Appendix A--Worker Safety and Health Functional Areas

    This appendix establishes the mandatory requirements for 
implementing the applicable functional areas required by 10 CFR 851.24 
of this part. These provisions from DOE Order 440.1A, ``Worker 
Protection Management for DOE Federal and Contractor Employees,'' were 
derived through years of coordination, analysis, and review and comment 
procedures seeking input from top subject matter experts throughout the 
Department as part of the Order development process. As a result, at 
the time of publication of DOE Order 440.1A, these provisions reflected 
the state-of-the-art in corporate safety and health program 
requirements and were established with the concurrence of each DOE 
Program Secretarial Office. Since the order was published, the 
Department has gained close to a decade of experience in successfully 
implementing these functional area provisions on DOE worksites. These 
sections build on the lessons learned over these years and establish 
appropriate functional area enhancements as deemed necessary by DOE 
subject matter experts in conjunction with the respective DOE internal 
technical advisory committees.
    Several commenters (Exs. 16, 27, 28, 42, 45) expressed concern that 
the provisions of this Appendix would require contractors to expend 
additional effort and resources to submit safety and health plans above 
and beyond the safety and health program called for under supplemental 
proposed Section 851.100 or to perform an extensive review and analysis 
of existing programs to ensure compliance with the rule. DOE does not 
believe that this is the case. The fundamental requirements captured in 
Appendix A of the final rule reflect those of DOE Order 440.1A, which 
has been applicable at DOE worksites for many years. Consequently, DOE 
believes that contractors are already complying with these requirements 
and thus minimal, if any, additional effort will be needed.
    One commenter (Ex. 28) sought clarification on whether plans 
required under the functional area sections of the rule must be 
submitted for DOE approval. Section 851.11 of the final rule requires 
contractors to submit to a written worker safety and health program 
that provides the methods for implementing the requirements of Subpart 
C (which includes the functional areas) to the appropriate Head of DOE 
Field Element for approval. Accordingly, a description of how the 
contractor will meet the requirements of Appendix A of the final rule 
must be included in the worker safety and health program that is 
submitted for DOE approval.
    These sections also establish provisions for a new functional area 
within the comprehensive worker protection program to address 
biological safety. DOE believes this new functional area is warranted 
to address concerns that arose from the anthrax terrorist attacks of 
October 2001. Provisions for each of the functional areas are discussed 
in further detail in the sections that follow.

1. Construction Safety

    Appendix A, section 1 (formerly supplemental notice of proposed 
rulemaking section 851.202) establishes requirements and 
responsibilities that apply to the construction managers and 
construction contractors for planning and implementing appropriate 
worker safety and health measures during construction activities. For 
the construction section of this rule, it was necessary to provide 
separate definitions in final rule section 851.3 that are applicable to 
construction in order to circumscribe those activities to which the 
construction safety provisions apply and to assign responsibilities for 
these activities. The definition of ``construction'' was taken directly 
from OSHA's standards, which in turn has taken its definition from the 
Davis-Bacon Act regulating wage rates for federally funded construction 
projects.
    The definition for ``construction contractor'' as provided in order 
to discern where in the contract hierarchy the responsibility for 
implementing the provisions of a construction contract lies. Depending 
on the contracting situation, the construction contractor may be the 
management and operating contractor if the work is performed directly 
by his forces or it may be a subcontractor to the management and 
operating contractor or a subcontractor to a separate construction 
management contractor.
    Similarly, the definition of ``construction manager'' was provided 
in order to discern where in the project hierarchy the responsibility 
for primary oversight of the construction contractor lies. For the 
purpose of this rule, the construction manager could be DOE if the 
construction work is performed directly by the management and operating 
contractor or it may be the management and operating contractor if the 
construction work is performed by a subcontractor to the management and 
operating contractor. It could also be a separate firm hired by DOE or 
the management and operating contractor to perform construction 
management services.
    The definitions for ``construction project'' and ``construction 
worksite'' were provided in order to circumscribe the activities and 
geographic location, respectively, to which the construction safety 
provisions of this rule apply.
    Some commenters (Exs. 16, 27, 28, 36, 42, 45) expressed concern 
that the provisions of this section would require contractors to expend 
additional effort

[[Page 6910]]

and resources to submit safety and health plans above and beyond the 
safety and health program called for under supplemental proposed 
section 851.100 or to perform an extensive review and analysis of 
existing programs to ensure compliance with the rule. As stated 
previously, DOE does not believe that this is the case, because the 
requirements in Appendix A, section 1, of the final rule reflect those 
of DOE Order 440.1A.
    One commenter (Ex. 54) requested that references to OSHA's Process 
Safety Management standards (29 CFR 1910.119 and 1926.64) be added to 
the construction safety requirements of the rule. DOE notes, however, 
that final rule section 851.23 requires contractors to comply with all 
standards at 29 CFR 1910 and 1926, so a separate reference is not 
needed in Appendix A, section 1, of the final rule.
    Three commenters (Exs. 16, 28, 45) were of the opinion that the 
language in this section of the supplemental proposal was subjective 
and more suitable as contract language than as enforceable language in 
a rule. DOE considers the ``subjectivity'' of this language--now 
captured in Appendix A, section 1, of the final rule--to be useful in 
allowing for a graded approach in the implementation of the 
construction safety requirements. A graded approach can also be applied 
to the development and approval of health and safety plans by the 
construction manager, which was an area of concern for other commenters 
(Exs. 36, 42).
    Other commenters (Exs. 20, 29, 37, 45, 51, 54) requested 
clarification on the responsibilities of various contractors at a DOE 
construction site. Accordingly, DOE has introduced the terms 
``construction contractor'' and ``construction manager'' and specified 
distinct responsibilities and requirements for each type of contractor, 
in addition to providing definitions for these two terms in section 
851.3--Definitions.
    The provisions of section 1(a)(1) of Appendix A focus on the 
requirement for construction contractors to prepare activity hazard 
analyses for project activities prior to commencement of work on the 
affected activities. One commenter (Ex. 40) pointed to the need for 
construction managers to provide a list of known worksite risks (e.g., 
site characterization data) to the construction contractor so that they 
can be appropriately addressed in the construction contractor's 
activity hazard analysis. Section 1(a)(ii) was added to the final rule 
to address this concern.
    Another commenter (Ex. 29) requested clarification on whether 
activities that use standard personal protective equipment require a 
hazard analysis. DOE's intent, as stated in Appendix A section 1(a), is 
to require activity level hazard analysis for each definable 
construction activity. The need for personal protective equipment does 
not dictate the need to perform a hazard analysis. Rather, the hazard 
analysis, through the identification of workplace hazards, dictates the 
need for workplace controls and protective equipment.
    One commenter (Ex. 48) argued that it is more appropriate to 
perform an ongoing hazard analysis rather than performing the hazard 
analysis before initiating the construction project. DOE agrees in 
part. As noted in Appendix A section 1(a), the hazard analysis required 
under section 1(a)(1) is required for ``each separately definable 
construction activity (e.g., excavations, foundations, structural 
steel, roofing).'' DOE's intent with this provision is that the 
construction manager prepares a hazard analysis prior to the start of 
each discrete construction activity within the project. DOE 
acknowledges that these activities will likely occur at different 
stages of the overall project and that some contractors may find it 
easier to prepare the related analyses as the project progresses rather 
than all at one time. DOE believes that this decision is best left to 
the discretion of the construction manager provided that the hazard 
analyses meet the requirements of section 1(a)(1).
    Several commenters (Exs. 26, 36, 39, 42, 45, 48, 51) noted that the 
wording of supplemental proposed section 851.202(a)(1)(iii) implied the 
need for a professional engineer for a wide variety of services beyond 
those prescribed by OSHA's construction standards, 29 CFR 1926. DOE 
agrees that the language of the supplemental proposal could be 
misinterpreted and, as a result, this provision was edited in Appendix 
A section 1(a)( iii), of the final rule to reflect the requirement for 
professional engineering services consistent with OSHA's standards.
    A number of commenters (Exs. 15, 19, 42, 45, 48, 49, 51) took issue 
with the wording of supplemental proposed section 851.202(a)(1)(iv) and 
the need to provide qualifications for competent persons. This 
provision was changed in Appendix A section 1(a)(iv) of the final rule 
to require the identification of the competent person for each work 
activity, consistent with OSHA requirements.
    Appendix A section 1(a)(2) requires the construction contractor to 
ensure that workers are aware of foreseeable hazards and the protective 
measures described within the activity analysis. The provision of 
supplemental proposed section 851.202(a)(3) that would have made a 
worker's use of appropriate protective measures a condition of 
employment was cited by four commenters (Exs. 16, 31, 36, 48) as 
reducing flexibility in labor/management relations. DOE agrees with 
these concerns. Accordingly, this provision was revised in Appendix A 
section 1(a)(3), of the final rule to state that the construction 
contractor must require that workers acknowledge being informed of the 
hazards and protective measures associated with assigned work 
activities and to require that workers failing to use the required 
controls be subject to the contractor's disciplinary process. One 
commenter (Ex. 16) argued that the rule should include an enforcement 
provision that does not hold contractors responsible for willful non-
compliance on the part of employees. DOE agrees with this commenter and 
has added a provision in final rule section 851.20(b) to prohibit 
workers from taking actions inconsistent with the rule. As mentioned in 
the section-by-section discussion for section 851.5 of the final rule, 
DOE will develop enforcement guidance for the rule that will include 
provisions similar to OSHA's unpreventable employee misconduct 
defense--outlined in OSHA's Field Inspection Reference Manual, Chapter 
III, paragraph C.8.c(1).
    Appendix A section 1(b) requires the construction contractor to 
have a designated representative on the construction worksite during 
periods of active construction and that this representative is 
knowledgeable of project hazards and have the authority to take 
actions. The section further clarifies that the representative must 
conduct frequent and regular inspections of the worksite to identify 
and correct hazards.
    Several commenters (Exs. 16, 31, 36, 42, 47, 48, 49) objected to 
the requirement for a construction contractor's designated 
representative to be on the construction worksite at all times. These 
commenters also questioned the need for daily worksite inspections by 
the contractor's designated representative and requested clarifications 
on the terms ``on site at all times'' and ``active construction'' (Exs. 
20, 29, 39, 47, and 48). The need for a contractor's representative to 
be onsite during active construction derives from the Federal 
Acquisition Regulation (FAR) Parts 36.506 and 52.236-6, Superintendence 
by the Contractor, which state that ``At all times during performance 
of this contract and until

[[Page 6911]]

the work is completed and accepted, the Contractor shall directly 
superintend the work or assign and have on the worksite a competent 
superintendent who is satisfactory to the Contracting Officer and has 
authority to act for the Contractor.'' The term ``active construction'' 
in section 1(b) of Appendix A is effectively defined by the addition of 
the parenthetical statement clarifying that ``active construction'' 
excludes periods of inactivity such as weekends or weather delays. With 
regard to the frequency of safety and health inspections, the text in 
section 1(b) has been changed to replace the term ``daily'' with 
``frequent and regular'' in an effort to be consistent with OSHA's 
construction safety standard addressing this issue, 29 CFR 
1926.20(b)(2).
    One commenter (Ex. 49) requested that the term ``onsite'' in 
supplemental proposed section 851.202(a)(4) be replaced with 
``available'' to accommodate for the designated representative's lunch 
breaks. DOE believes that, in the absence of activity on the 
construction worksite during a lunch break, there is no need for the 
presence of a designated representative. However, if construction 
continues during the designated representative's lunch break, the 
contractor must ensure that another representative is designated and 
present onsite.
    One commenter (Ex. 16) objected to a requirement in supplemental 
proposed section 851.202(a)(4) for specific training for designated 
representatives. DOE agrees with this commenter's concern and has 
removed the provision from the final rule.
    Other commenters (Exs. 20 and 47) requested a definition for the 
term ``designated representative.'' DOE notes that, although the rule 
does not provide such a definition, section 1(b) provides that the 
designated representative must be a person who is knowledgeable of the 
project's hazards and has full authority to act on behalf of the 
construction contractor.
    Appendix A section 1(c) is derived from provisions originally 
included in supplemental proposed section 851.202(a)(4). These 
provisions require that workers be instructed to report identified 
hazards to the contractor's designated representative and that 
contractors take certain steps up to and including stopping work if 
they cannot immediately correct the hazards.
    Several commenters took issue with a variety of terms used in the 
original provision of the supplemental proposal. Specifically, one 
commenter (Ex. 27) objected to the use of the word ``unforeseen'' in 
describing hazards that workers must report. Accordingly, the word has 
been deleted from the rule and the text clarified to refer to hazards 
that have not been previously identified or evaluated. Another 
commenter (Ex. 48) questioned the appropriateness of the term 
``immediate corrective action'' on the grounds that it implies 
permanent correction. DOE disagrees that the term is inappropriate. 
Appendix A section 1(c) specifically discusses the conditions for which 
interim control measures are appropriate (i.e., when immediate 
corrective action is not possible or the hazard falls outside the 
project scope).
    On the subject of workers reporting hazards not previously 
identified or evaluated, one commenter (Ex. 31) responded that, because 
current practices involve workers reporting safety concerns to their 
immediate supervisors, the requirement be reworded to include reporting 
of hazards to either the immediate supervisor ``or'' the designated 
representative. DOE disagrees. Designated representatives, as discussed 
above, are persons with the authority to act on behalf of the 
construction contractor and, therefore, are the appropriate persons to 
inform of the hazards. This does not, however, preclude the contractor 
from establishing internal procedures to require workers to report 
hazards to their immediate supervisor and the designated 
representative.
    Appendix A section 1(d) requires construction contractors to 
prepare a written construction project safety and health plan to 
implement the requirements of section 1 of the Appendix. The section 
stipulates that the contractor must obtain the construction manager's 
approval of the plan before commencing any work covered by the plan.
    There were several comments (Exs. 15, 40, 47, 48, 55) regarding the 
supplemental proposal's requirement in section 851.202(b) of having the 
monetary threshold of the Davis-Bacon Act trigger the need for a 
written construction safety plan. The Davis-Bacon act was used in 
previous DOE policy, as a means for deciding which activities were 
constructions. However, DOE has decided, after considering the comments 
that using a law governing wage rates as the determining factor for a 
safety regulation is inappropriate and often confusing. Hence, 
reference to the Davis-Bacon Act has been deleted from the final rule.
    There were also numerous comments (Exs. 15, 16, 25, 28, 29, 36, 37, 
42, 45, 49, 51) concerning the requirement for DOE to review and 
approve construction contractors' safety and health plans. These 
comments focused on the fact that DOE generally does not have the 
personnel resources to fulfill this requirement. DOE agrees with these 
comments and has changed the approving authority in section 1(a)(1) to 
the construction manager.

2. Fire Protection

    Appendix A section 2 (formerly supplemental notice of proposed 
rulemaking section 851.203), establishes the basic requirements for a 
comprehensive fire protection program.
    Numerous commenters (Exs. 2, 3, 4, 5, 8, 13, 15, 29, 31, 36, 39, 
42, 47, 48, 49, 61) objected to the approach taken in the supplemental 
proposed rule with regard to fire protection. Section 851.203 of the 
supplemental proposal included specific requirements for fire 
protection and fire department operations. DOE agrees that a more 
pragmatic and less prescriptive approach to the delineation of 
requirements for fire protection and emergency services is appropriate. 
Consequently, the final rule has been revised to include the text from 
the fire protection portion of DOE Order 440.1A, which has been in 
effect since 1998.
    One commenter (Ex. 5) suggested that the rule prohibit the purchase 
or use of self-illuminating exit signs or other signs at nuclear 
facilities since these signs are a source of tritium and are difficult 
to disassociate from a nuclear event at a nuclear facility. DOE notes 
that the purchase or use of self-illuminating exit signs or other signs 
at nuclear facilities is not within the scope of the final rule. Self-
illuminating exit signs or other signs are commercially available and 
issued under the Nuclear Regulatory Commission's general license.
    Section 2(a) of Appendix A to the final rule establishes the 
specific requirements for the implementation of a comprehensive fire 
protection program to ensure workers a safe and healthful workplace. 
These requirements, along with the applicable NFPA standards, and DOE 
fire safety directives, technical standards and guidance, have 
historically been considered necessary for a comprehensive fire safety 
program. The section further clarifies that the program must include 
appropriate facility and site-wide fire protection, fire alarm 
notification and egress features, and that contractors must assure 
access to a fully staffed, trained, and equipped emergency response 
organization that is capable of responding in a timely and effective 
manner to site emergencies.

[[Page 6912]]

    Two commenters (Exs. 31, 39) objected to the requirement that all 
contractors must implement a fire protection and response program 
(emphasis added). According to the commenters, other options are 
available, including reliance on another government agency or a public 
fire department. The requirement for a current Baseline Needs 
Assessment and the need for written pre-fire strategies, plans, and 
standard operating procedures, as would be provided by section 
851.203(a)(7) and (a)(8) in the supplemental notice of proposed 
rulemaking was of concern to other commenters (Ex. 36, 39, 48). These 
commenters were of the view that these requirement should not apply to 
contractors that do not operate fire departments. DOE agrees with the 
commenters, and has revised the text to emphasize that contractors must 
have access (emphasis added) to a fully staffed, trained, and equipped 
emergency response organization that is capable of responding in a 
timely and effective manner to a spectrum of site emergencies. However, 
DOE expects that the decision regarding the type of emergency services 
capability that is credited is based, in part, on the results of a 
Baseline Needs Assessment.
    A few commenters (Exs. 31, 42, 49, 61) requested that DOE define 
``qualified fire protection engineer.'' DOE has removed this term from 
the final rule.
    Appendix A section 2(b), requires inclusion of appropriate fire 
protection criteria and procedures, analyses, hardware and systems, 
apparatus and equipment, and personnel in the fire protection program 
to ensure that the objective in Appendix A section 2(a) is met. This 
includes meeting the applicable building code and National Fire 
Protection Association (NFPA) Codes and Standards or exceeding them, 
when necessary, to meet safety objectives, unless explicit written 
relief has been granted by DOE.
    Numerous commenters (Exs. 2, 4, 5, 8, 16, 19, 22, 24, 31, 37, 42, 
45, 49, 53, 54, 58, 61) objected to the number of NFPA codes and 
standards proposed by DOE in the supplemental notice of proposed 
rulemaking, as many appeared to have little, or no relevance to 
activities at DOE sites. Similarly, another commenter (Ex. 39) asserted 
that some of the requirements in those codes and standards applied to 
the protection of structures and were not directly related to the 
safety and health of workers. DOE has decided that an exhaustive list 
of applicable NFPA standards is unnecessary and has not included a list 
in the final rule. With regard to the issue of facility-specific 
requirements within NFPA codes and standards, DOE agrees that any 
requirement that is not directly related to the safety and health of 
workers is not applicable in the context of this rule. However, these 
requirements may apply to DOE facilities through DOE directives, such 
as with DOE O 420.1, which are made applicable by contract.
    A number of commenters (Exs. 2, 4, 22, 49, 54, 55, 61) objected to 
the inclusion of specific editions of the applicable NFPA standards, 
arguing that as this would result in the enforcement of obsolescent 
criteria. As discussed previously, DOE has decided against 
incorporating into the rule most of the standards included in the 
supplemental proposed rule.
    Two commenters (Exs. 7, 29) expressed concern that adoption of NFPA 
Standard 1710, and the enforcement of requirements from other NFPA 
standards that govern fire department operations would impose 
significant burdens (in terms of time, staffing, paperwork, etc.) on 
site emergency services organizations for which there are insufficient 
budgets. Other commenters (Exs. 5, 37, 39, 42, 48) stated their belief 
that the non-fire department oriented requirements would also 
significantly increase costs. DOE agrees and has deleted the NFPA 
standards governing fire department operations from the final rule.
    One commenter (Ex.1) suggested that NFPA Standard 1600, ``Disaster 
and Emergency Management and Business Continuity Programs'' be included 
in the rule. DOE disagrees with this recommendation because this 
standard is included in other DOE directives, such as DOE O 420.1, 
which apply, through contracts, to DOE facilities.
    Several commenters (8, 15, 29, 31, 35, 36, 37, 42, 46, 49) objected 
to the list of NFPA and other industry standards because there was no 
consideration for the fact that many DOE facilities were constructed 
years ago under the ``code(s) of record.'' DOE agrees with the 
commenter and has revised the list of standards to more closely mirror 
the list of standards required under DOE O 440.1A. It is DOE's intent 
that contractors use DOE fire safety directives which establish the 
concept of compliance with a ``code of record.''
    Another commenter (Ex. 49) questioned on how NFPA standards would 
apply in leased locations where the contractor has no enforcement 
authority and does not control the fire department manpower, training 
and equipment. DOE has deleted the NFPA standards from the final rule.
    One commenter (Ex. 13) suggested that DOE consider adding the 
Underwriters Laboratories (UL) listings and Factory Mutual data sheets 
to Appendix A section 2. This commenter did not, however, provide a 
rationale for this suggestion. Without a rationale DOE could make 
determine the need for the inclusion of such standards in the final 
rule, therefore, DOE has not included them in the final rule.
    Another commenter (Ex. 54) requested that references to OSHA's 
Process Safety Management standards (29 CFR 1910.119 and 1926.64) be 
added to the fire safety requirements of the rule. DOE notes that final 
rule section 851.23 requires contractors to comply with all standards 
at 29 CFR 1910 and 1926. Hence, a separate reference is not needed in 
Appendix A section 2 of the final rule. Several commenters (Exs. 2, 4, 
16, 48, 49, 59, 61) objected to the lack of explicit reference to the 
``equivalency'' concept that has historically been used within the DOE 
fire safety community to rationalize alternative approaches to fire 
safety. DOE agrees in part and concludes that, beyond the definition of 
a formal exemption process to this rule, no explicit reference to 
``equivalencies'' is necessary, as this concept is an integral part of 
all NFPA codes and standards and DOE fire safety directives. The 
recommendation made by two commenters (Exs. 36, 42) that the Authority 
Having Jurisdiction (AHJ) be responsible for approving fire safety code 
and standard equivalencies (as required by DOE Order 420.1A) instead of 
the DOE site manager (as would be required by the proposed rule) is 
acceptable to DOE.

3. Explosives Safety

    Appendix A section 3 (formerly supplemental notice of proposed 
rulemaking section 851.204), of the final rule establishes safety 
provisions for DOE contractors performing work involving explosive 
materials. Appendix A section 3(a) establishes the primary requirement 
for DOE contractors to develop, implement, and maintain a comprehensive 
explosives safety program. These provisions this program must assure 
that workers, visitors, and members of the public are not exposed to 
significant explosives threats (blast overpressure, fragment, debris, 
structural collapse, heat and fire).
    DOE explosives handling and processing operations are an integral 
part of DOE weapons and weapons-related development, manufacturing, and 
dismantlement activities as well as DOE security operations. Safety in 
all

[[Page 6913]]

operations associated with explosive materials is an ongoing, primary 
concern and must be given high priority in all program direction and 
management activities.
    DOE received a number of comments on the explosives safety 
provisions included in section 851.204 of the supplemental proposed 
rule. A majority of these commenters (Exs. 8, 15, 20, 37, 59) stated 
that the rule should require contractors to comply with DOE Manual 
440.1-1, DOE Explosives Safety Manual. These commenters argued that the 
provisions in this section of the supplemental proposal were vague and 
were not as comprehensive and clear as the provisions of the DOE 
Explosives Safety Manual. The commenters noted specific concerns 
regarding reference to an undefined certification program to train 
persons assigned to explosives operations (Exs. 37, 59); the omission 
of a grandfather clause to address older facilities that cannot meet 
newer requirements (Ex. 59); the omission of criteria related to 
firebreaks and fire exits (Exs. 37, 59); and the omission of critical 
components of the lightning protection program (Exs. 37, 59). These 
commenters noted that the DOE Explosives Safety Manual was specifically 
developed to address explosives safety in DOE operations and felt that 
reliance on the Manual rather than the incomplete explosives safety 
requirements in the supplemental proposal would provide for more 
effective protection of the DOE work force.
    DOE agrees with these commenters and has accordingly replaced the 
technical provisions that were included in the supplemental proposal 
with the basic requirement in Appendix A section 3(b) that contractors 
comply with DOE Manual 440.1-1A, Explosives Safety Manual (DOE M 440.1-
1A), Contractor Requirements Document (Attachment 2), January 9, 2006. 
As noted by the commenters, this Manual establishes safety controls and 
standards that are not addressed in other existing DOE or non-DOE 
regulations. The Manual closes the considerable safety gap created by 
DOE's unique activities, governs the DOE explosives safety process, and 
ensures that explosives safety is commensurate with actual risk.
    One commenter (Ex. 39) questioned why the explosives safety 
provisions in the supplemental proposal specifically excepted the use 
of explosive material for routine construction, demolition, and tunnel 
blasting. Although, this specific exception has been removed from the 
text of the final rule, the exception, with additional clarification 
and rationale, is a part of the DOE Explosive Safety Manual. 
Specifically, the Manual states that if blasting operations are routine 
in the context of construction or tunneling blasting, then the more 
appropriate OSHA 1910 and 1926 standards may be used. However, 
magazines must be sited according to the Department of Defense (DoD) 
Criteria in DoD 6055.9, DOD Ammunition and Explosives Safety Standards. 
Transportation of explosives across DOE sites must be in conformity 
with the Manual. DOE does not believe, however, that explosive 
demolition of facilities should be considered a routine use of 
explosives due to its unique risks. As a result, DOE intends that such 
operations would be governed by requirements in the DOE Technical 
Standard on Explosive Demolition of Structures.
    Several commenters (Exs. 9, 16, 22, 59) questioned the 
incorporation of NFPA 495, Explosives Materials and NFPA 498, Standards 
for Safe Havens and Interchange Lots for Vehicles Transporting 
Explosives, in Subpart C of the supplemental proposal. These commenters 
noted that the standards are not applicable to the military style of 
explosives materials used in DOE and felt that their inclusion in the 
rule would only confuse covered contractors with conflicting and less 
rigorous safety policies. DOE agrees with these commenters and has 
removed the standards from the final rule.
    Appendix A section 3(c) of the final rule clarifies that 
contractors must determine the applicability of the explosives safety 
requirements to research and development laboratory type operations 
consistent with the DOE level of protection criteria established in the 
DOE Explosives Safety Manual. This provision was added to the final 
rule to address one commenter's (Ex. 36) concern that the explosives 
safety provisions of the supplemental proposal did not accommodate 
laboratory activities where the forms and quantities of explosive 
materials did not represent a significant personnel or facility hazard.

4. Pressure Safety

    Appendix A section 4 (formerly supplemental notice of proposed 
rulemaking section 851.205), of the final rule establishes pressure 
safety requirements for DOE contractors performing activities at 
covered workplaces. DOE received numerous comments regarding the 
corresponding section of the supplemental proposed rule expressing 
concern or requesting clarification of proposed pressure safety 
provisions.
    DOE critically evaluated each of these comments and considered 
related input from the Department's Pressure Safety Committee in 
crafting the pressure safety section of the final rule. DOE notes that 
the DOE Pressure Safety Committee includes both federal and contractor 
experts from within the DOE complex. Based on this evaluation and an 
evaluation of comments on the overall supplemental proposed rule in 
general, DOE revised the pressure safety section of the final rule to 
closely follow the requirements of the Pressure System Safety section 
in DOE Order 440.1A. DOE Order 440.1A has governed pressure system 
safety within DOE for the last eight years and has been well 
scrutinized through an expert technical review processes.
    The sections that follow provide a detailed discussion of the 
provisions of the pressure safety section of the final rule as well as 
a summary of, and DOE responses to, the specific comments received 
related to these provisions. One commenter (Ex. 20) expressed concern 
that intensive configuration management would be required to administer 
the requirements of the rule and research would be necessary to 
establish a clearly documented baseline for compliance. In response to 
this concern, DOE notes since the pressure safety requirements in the 
final rule incorporate the existing requirements in DOE Order 440.1A, 
DOE believes that contractors, who are already in compliance with DOE 
Order 440.1A, will require minimal, if any effort to implement the rule 
requirements.
    Appendix A section 4(a) describes what constitute pressure systems 
and requires contractors to establish safety policies and procedures to 
ensure they are designed, fabricated, tested, inspected, maintained, 
repaired, and operated by trained and qualified personnel in accordance 
with applicable and sound engineering principles.
    Two commenters (Ex. 42, 49) requested a definition of pressure 
systems. DOE notes that the DOE Pressure Safety Committee has, in the 
draft Implementation Guide to DOE Order 440.1A, defined pressure 
systems in the following terms: ``Pressure systems are comprised of all 
pressure vessels, and pressure sources including cryogenics, pneumatic, 
hydraulic, and vacuum. Vacuum systems should be considered pressure 
systems due to their potential for catastrophic failure due to backfill 
pressurization. Associated hardware (e.g. gauges, and regulators), 
fittings, piping, pumps, and pressure relief devices are also integral 
parts of the pressure system''. DOE has included this definition in 
final rule

[[Page 6914]]

section 851.3 and in Appendix A section 4(a). In addition, DOE 
emphasizes that cryogenic and vacuum systems are included as pressure 
systems.
    Two commenters (Ex. 29, 48) suggested that pressure retaining 
vessel safety requirements were best imposed through contract 
provisions or through specifications for new components, and that 
operational safety requirements were already contained in the 
applicable national consensus standards (OSHA regulations) incorporated 
in the proposed rule. The commenters specifically suggested modifying 
the language in proposed section 851.205(a) to require contractor 
safety policies and procedures to ensure that design, fabrication, 
testing, inspection, maintenance and operation of pressure systems is 
performed by ``qualified personnel in accordance with applicable safety 
or national consensus standards.''
    In response, DOE notes that the corresponding Appendix A section 
(4)(a) follows the requirements of the Pressure System Safety section 
in DOE Order 440.1A, according to which contractors 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. Further DOE stresses that 
training of personnel using, maintaining, repairing, or constructing 
pressure systems is paramount. The inspection and maintenance of the 
systems is also essential as they decay over time and a reasoned 
engineering approach must be used to maintain safety.
    Appendix A section 4(b) further describes the applicable national 
consensus standards including professional and state and local codes, 
that contractors must conform to with respect to pressure system safety 
in DOE covered workplaces.
    DOE received numerous comments (Exs. 2, 8, 16, 19, 29, 37, 45, 49) 
expressing concern over the inclusion of ASME codes in proposed section 
851.201(c) and suggested they be eliminated or modified. In response to 
these concerns, DOE has revised the corresponding final rule section 
Appendix A section 4(b) to eliminate the proposed tables and any cited 
standards that lacked relevance to the pressure safety requirements of 
the rule.
    One commenter (Ex. 16) expressed concern over the separation of 
requirements for compliance with ASME codes and ensuring pressure 
safety and suggested it gave ``the appearance of being inappropriate or 
unsafe for components within the scope of the ASME code.'' The 
commenter recommended presenting both requirements in a manner that 
clarified their relationship and scope. In response DOE notes that the 
corresponding final rule section has been revised to present the 
relevant codes within the pressure safety requirements in Appendix A 
section 4(b). Additionally, DOE reiterates that this new section 
follows the requirements of the pressure system safety section in DOE 
Order 440.1A. According to Appendix A section 4(b)(1) through (3) of 
the final rule, contractors must ensure that all pressure vessels, 
boilers, air receivers, and supporting piping systems conform to the 
applicable ASME Boilers and Pressure Vessel Safety Codes, the ANSI/ASME 
B.31 Piping Code or the strictest applicable state and local codes. 
These provisions are consistent with the long held policy of only 
citing the ASME code on pressure vessels or the ANSI piping code, which 
are mainly manufacturing and fabrication codes.
    The research and development aspects of DOE often require that some 
pressure vessels are built to contain very high pressure that is above 
the level of applicability of the ASME Pressure Safety Code. Other 
times, new materials or shapes are required that are beyond the 
applicability of the ASME Code. In these cases, addressed under 
Appendix A section 4(c), rational engineering provisions are set to 
govern the vessels construction and use and assure equivalent safety.
    Appendix A section 4(c) provides guidelines for equivalent measures 
that contractors may implement in the event that national consensus 
standards are not applicable to ensure pressure system safety and meet 
the requirements of the final rule.
    A few commenters (Ex. 29, 42, 49) sought clarification of what 
constituted an ``independent peer review'' to determine if national 
consensus codes and standards were applicable or not. In response to 
this concern, DOE has revised the language of the corresponding final 
rule section to eliminate use of the phrase ``independent peer 
review.'' One commenter (Ex. 49) further questioned what approved 
measures were to be implemented in the event consensus standards were 
not applicable. In response, DOE has provided greater clarification in 
final rule Appendix A section 4(c) of the measures that are to be used. 
The final rule Appendix A section 4(c) provides that when national 
consensus codes are not applicable (because of pressure range, vessel 
geometry, use of special materials, etc.), contractors must implement 
measures to provide equivalent protection and ensure a level of safety 
greater than or equal to the level of protection afforded by the ASME 
code. DOE notes that documented organizational peer review is 
acceptable for the design drawings, sketches, and calculations that 
must be reviewed and approved by a professional engineer.

5. Firearms Safety

    Appendix A section 5 of the final rule (formerly supplemental 
notice of proposed rulemaking section 851.208), establishes firearms 
safety policies and procedures for security operations, and training to 
ensure proper accident prevention controls are in place. Two commenters 
(Exs. 27, 45) asserted that the requirements in Appendix A section 5 of 
the final rule appear to be a summarization of existing DOE Orders and 
will likely require extensive review and analysis for contractors to 
come into compliance with the rule requirements. Since the industrial 
hygiene requirements in the final rule incorporate the existing 
requirements in DOE Order 440.1A, DOE believes that for contractors 
that are already in compliance with DOE Order 440.1A, it should require 
minimal, if any, effort to implement the rule requirements.
    Some commenters (Exs. 5, 36, 25, 42) requested clarification on 
whether the requirements of the rule apply to sites without armed 
security forces and to the occasional use of firearms for research 
purposes or for activities like the capture and study of wildlife. The 
provisions of Appendix A section 5(a) apply only to contractors engaged 
in DOE activities involving the use of firearms. The scope and nature 
of work activities involving specific types of hazards in this case, 
the use of firearms determines whether the requirements of a particular 
safety program apply to the workplace. Generally, the rule requirements 
do not apply to sites that do not have armed security forces. Other use 
of firearms at DOE facilities, such as the use of firearms for research 
(e.g., material testing) or for activities like the capture and study 
of wildlife, also could create conditions that warrant the application 
of Appendix A section 5(a) firearms safety provisions.
    Two commenters (Exs. 42, 49) were of the opinion that rule did not 
correctly identify the types of contractors that must comply with the 
firearms safety requirements. The commenters suggested that use of the 
term ``a contractor engaged in DOE activities involving the use of 
firearms'' would be

[[Page 6915]]

more appropriate than the phrase ``a contractor responsible for a 
workplace'' which had been used in the supplemental notice of proposed 
rulemaking. DOE agrees with the commenters and the language in Appendix 
A section 5(a) had been revised accordingly.
    Written procedures must address firearms safety, engineering and 
administrative controls, as well as personal protective equipment 
requirements according to Appendix A section 5(a)(1).
    Appendix A sections 5(a)(2)(i) through (viii) establish 
requirements for contractors to develop specific procedures for various 
activities that involve the use of firearms including the storage, 
handling, cleaning, inventory, and maintenance of firearms, ammunition, 
pyrotechnics etc. Procedures must also be developed for the use of 
firing ranges by personnel other than DOE or DOE contractor protective 
forces personnel. As a minimum, procedures must be established for: (1) 
Storage, handling, cleaning, inventory, and maintenance of firearms and 
associated ammunition; (2) 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; (3) use and storage of pyrotechnics, 
explosives, and/or explosive projectiles; (4) handling misfires, duds, 
and unauthorized discharges; (5) live fire training, qualification, and 
evaluation activities; (6) training and exercises using engagement 
simulation systems; (7) medical response at firearms training 
facilities; and (8) use of firing ranges by personnel other than DOE or 
DOE contractor protective forces personnel.
    In order to comply with the provisions of Appendix A section 5(b), 
contractors 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.
    Appendix A section 5(c) requires that contractors 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. Additionally, personnel must not be allowed to conduct 
activities for which they have not been certified.
    Appendix A section 5(d), mandates that contractors conduct formal 
appraisals assessing implementation of procedures, personnel 
responsibilities, and duty assignments to ensure overall policy 
objectives and performance criteria are being met by qualified 
personnel.
    According to the provisions of Appendix A section 5(e), contractors 
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; (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; (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 the Head of DOE Field 
Element must be developed for the facilities and operation of each live 
fire range prior to implementation of any new training, qualification, 
or evaluation activity, and the 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 range facilities; and (7) live fire ranges, 
approved by the Head of DOE Field Element, must be properly sited to 
protect personnel on the range, as well as personnel and property not 
associated with the range.
    Contractors must ensure that the transportation, handling, 
placarding, and storage of munitions conform to the applicable DOE 
requirements to satisfy the requirements of Appendix A section 5(f).

6. Industrial Hygiene

    Appendix A section 6 of the final rule (formerly supplemental 
notice of proposed rulemaking section 851.209), provides the industrial 
hygiene program requirements. Industrial hygiene is an important 
component of a comprehensive worker protection program. The contents of 
this functional area were developed by the DOE Industrial Hygiene 
Coordinating Committee (IHCC) to identify those minimum requirements 
necessary to implement an effective industrial hygiene program. The 
minimum set of requirements that resulted from this process reflects 
the recommendations of industrial hygiene experts from across the DOE 
complex.
    Two commenters (Exs. 27, 45) asserted that the requirements in 
supplemental proposed section 851.209 appeared to be a summarization of 
existing DOE Orders and would likely require extensive review and 
analysis for contractors to come into compliance with the rule 
requirements. Since the industrial hygiene requirements in the final 
rule incorporate the existing requirements in DOE Order 440.1A, DOE 
believes that for contractors that are already in compliance with DOE 
Order 440.1A, minimal, if any, effort will be required to implement the 
rule requirements.
    One commenter (Ex. 37) recommended that Appendix A section 6 
reference DOE's Industrial Hygiene (IH) manual and the OSHA standards 
in lieu of the American Conference of Governmental Industrial 
Hygienists' (ACGIH's) threshold limit values (TLV) manual. DOE notes 
that final rule section 851.23 requires contractors to comply with the 
standards listed in that section, which include OSHA standards as well 
as the ACGIH TLVs. Further, the purpose of the DOE IH manual is to 
serve as a guidance tool rather than as regulatory text. Therefore, DOE 
believes that it is neither necessary nor appropriate to reference the 
DOE IH manual in Appendix A section 6, in place of the standards 
already required by section 851.23.
    The absence of any requirement for worker participation within the 
provisions of rule was an issue for two commenters (Exs. 54 and 55). 
Sections 851.20(a) and (b) of the final rule requires worker 
participation in work-related safety and health activities and 
evaluations. This section also requires worker access to various types 
of safety and health information, in addition to providing for other 
workers' rights. Therefore, there is no need for worker participation 
requirements to be specified separately in Appendix A section 6.
    Appendix A section 6 in the final rule contains provisions for 
contractor implementation of a comprehensive and effective industrial 
hygiene program to reduce the risk of work-related disease or illness. 
One commenter (Ex. 16) considered the use of the term ``workplace'' in 
the supplemental proposed 851.209(a) confusing, especially for sites 
where DOE utilizes multiple contractors. DOE agrees with the commenter 
and, accordingly, this term had been deleted from the text of Appendix 
A section 6.
    Appendix A section 6(a) requires initial or baseline surveys and 
periodic resurveys and/or exposure monitoring as appropriate of all 
work areas or

[[Page 6916]]

operations to identify and evaluate potential worker health risks. 
Several commenters (Exs. 12, 15, 16, 35, 42, and 48) contended that 
conducting initial and baseline surveys of all work areas or operations 
can be burdensome and costly, especially for areas undergoing or 
intended to undergo decontamination and decommission. DOE disagrees 
with this contention. The requirements of Appendix A section 6(a) allow 
contractors the flexibility to determine the appropriate level of 
assessment based on the complexity of the operation and the presence 
and level of workplace hazards. The effort for assessments should be 
graded according to the level of risk each hazard poses. Regarding the 
question of ``grandfathering'' existing assessments, if a baseline 
assessment has already been accomplished, as would be the case for 
contractors already in compliance with the provisions of DOE O 440.1, 
and the workplace hazards and activities have not changed, then a new 
baseline assessment of risks is not required. However, DOE agrees with 
the commenters that areas or operations undergoing decontamination and 
decommission could change on a daily basis. As a result, more frequent 
assessments are needed to ensure that all hazards are identified and 
controlled.
    Appendix A section 6(b), requires coordination with planning and 
design personnel to anticipate and control facility and operations 
related health hazards as one of the elements of the industrial hygiene 
program that contractors must implement.
    Coordination with cognizant occupational medical, environmental, 
health physics, and work planning professionals is another element of 
the industrial hygiene program that is required by Appendix A section 
6(c).
    According to Appendix A section 6(d), the contractor's industrial 
hygiene program must include policies and procedures to control risks 
from identified and potential occupational carcinogens. Two commenters 
(Exs. 16, 48) asserted that the rule fails to specify or define the 
identified or potential carcinogens. DOE notes that section 851.23 of 
the final rule mandates compliance with several safety and health 
standards, including OSHA standards and the ACGIH TLVs, that address 
occupational carcinogens. These standards identify occupational 
carcinogens and provide additional information in the areas of exposure 
levels, hazard control, and worker protection for different 
carcinogens. Consequently, Appendix A section 6(d) does not provide a 
separate identification or definition for carcinogens.
    Appendix A section 6(e) of the final rule requires that the 
contractors' industrial hygiene program be managed and implemented by 
professionally and technically qualified industrial hygienists.

7. Biological Safety

    Appendix A section 7 of the final rule (formerly supplemental 
notice of proposed rulemaking section 851.207), provides the biological 
safety program requirements. In February 2001, the DOE Office of 
Inspector General (DOE-IG) issued a report entitled ``Inspection of 
Department of Energy Activities Involving Biological Select Agents'' 
(DOE/IG-0492). In this report the DOE-IG made 7 recommendations 
regarding the handling and use of biological agents within the 
Department. In response to this report the department developed, 
through its directives system, DOE Notice 450.7 ``The Safe Handling, 
Transfer, and Receipt of Biological Etiologic Agents at Department of 
Energy Facilities''. Proposed 10 CFR 851.207 reflected the requirements 
contained in DOE Notice 450.7.
    In November 2001, the Deputy Secretary of Energy indicated in a 
memo that the Department must be a responsible steward of biological 
etiologic agents and directed Departmental elements to have DOE Notice 
450.7, The Safe Handling, Transfer, and Receipt of Biological Etiologic 
Agents at the Department of Energy Facilities, incorporated into 
applicable contracts. DOE Notice 450.7 lays out the Department's 
expectations for BioSafety at the DOE facilities.
    The Department of Health and Human Services (DHHS) and the 
Department of Agriculture issued new regulations covering the 
possession, use, and transfer of select agents and toxins as interim 
final rules (42 CFR Part 73, 7 CFR Part 331, and 9 CFR Part 121) in 
December 2003. The rules were issued in response to the Public Health 
Security and Bioterrorism Preparedness and Response Act of 2002 and 
provide updated requirements to those found in DOE Notice 450.7. The 
updated requirements are included in this rule to cover DOE 
contractors.
    Appendix A section 7(a) (proposed as 851.207(a)) requires the 
establishment of an institutional biological safety committee (IBC) to 
review work with biological agents to ensure their compliance with 
appropriate federal and state guidelines for this type of activity.
    Several commenters (Exs. 27, 28, 36, 42, 48) expressed concern that 
the requirements in supplemental proposed section 851.207 would expose 
contractors to dual regulation because they would be subject to Part 
851, based on DOE directive and to DHHS and Agriculture rules. These 
concerns are unfounded. When 10 CFR 851 is made effective, including 
the Biological Safety requirements of Appendix A section 7, DOE N 450.7 
will expire and will not be renewed. As stated above, today's final 
rule incorporates the updated requirements in the DHHS and Department 
of Agriculture rules.
    One commenter (Ex. 28) sought clarification on whether supplemental 
proposed section 851.207 would be part of the worker health and safety 
plan that must be submitted for DOE approval. Section 851.11 of the 
final rule requires contractors to submit to a written worker safety 
and health program that provides the methods for implementing the 
requirements of Subpart C (which includes the functional areas, such as 
biological safety) to the appropriate Head of DOE Field Element for 
approval. A description of how the contractor will meet the 
requirements of Appendix A section 7 of the final rule must be included 
in the worker safety and health program that is submitted for DOE 
approval.
    One commenter (Ex. 15) requested a definition for the term 
``biological etiological agents'' which was included in supplemental 
proposed section 851.207 and is used throughout Appendix A section 7 of 
the final rule. DOE interprets the term ``biological etiological 
agent'' to mean any agent capable of causing disease in humans, plants 
or animals. Other commenters (Exs. 6, 15) noted that the term 
``biological etiological agents'' includes many agents that are of 
little importance to workplace safety or do not pose a security risk 
and therefore, recommended that this term be replaced by either 
``Select Agents'' as defined by 42 CFR 73, or ``Risk Group 3 and 4 
agents.'' DOE believes that the requirements in Appendix A section 
7(a)(1) are meant to apply to not only select agents but to any agent 
that may cause disease. In order to comply with this intent of the 
rule, the site institutional biological safety committee (IBC) should 
review all work with biological agents and determine if appropriate 
controls are being put into place, although a graded approach should be 
used for the reviews to reflect the severity of the hazard.
    Appendix A section 7(a)(1) requires the establishment of an IBC to 
review work with biological agents to ensure

[[Page 6917]]

compliance with appropriate federal and state guidelines for this type 
of activity. Several commenters (Ex. 25, 37, 45, and 51) expressed 
concern that this provision could be interpreted to apply to 
contractors that do not possess or use biological etiological agents in 
the workplace. DOE intends that contractors must implement the 
provisions of Appendix A section 7(a)(1) wherever they are applicable. 
A contractor that does not perform work involving exposure to 
biological agents is not required to implement any provisions of 
Appendix A section 7. Another commenter (Ex. 15) argued that the 
requirements in Appendix A section 7(a)(1) would result in additional 
costs and increased workload for the IBC. DOE considers it good 
practice to review any work undertaken with biological agents. Although 
the IBC is required to review all work with biological agents to 
determine if appropriate controls are in place, DOE believes that the 
extent and rigor of the review will depend upon the risk and hazard 
associated with the agent being used. Application of this graded 
approach should limit any increases in the workload and associated 
costs. Another commenter (Ex. 29) recommended that the word 
``appropriate'' in supplemental proposed section 851.207(a)(1) be 
changed to ``applicable.'' DOE agrees, and has revised the text in 
Appendix A, section 7(a)(1)(i) of the final rule accordingly. Appendix 
A section 7(a)(1)(ii) of the final rule instructs contractors to 
confirm the presence of site security, safeguards, and emergency 
management plans and procedures, when performing work with biological 
etiologic agents. Two commenters (Ex. 15 and 42) found a lack of 
clarity in the provisions of supplemental proposed section 
851.207(a)(2) and the requirement for IBC review of security plans and 
procedures; in their view, security matters are typically not 
considered to be an area of IBC expertise. DOE disagrees, believing the 
provisions in Appendix A section 7(a)(1)(ii) of the final rule 
appropriately reflect the importance of maintaining security measures 
with respect to bioagents. The DHHS and Department of Agricultures 
rules (42 CFR 73.11 and 73.12), establish requirements for Security and 
Emergency Response plans to be developed and implemented for select 
agents. DOE believes there must be a determination of how much review 
and oversight is needed for all types of biological etiological agents 
and that the IBC can provide the sites security organization with the 
expertise to address these issues. The IBC should note in its review of 
proposals if security has been properly addressed. However, the policy 
for security at a DOE facility should be addressed by the security 
department.
    Appendix A section 7(a)(2) requires maintenance of an inventory and 
status of biological etiologic agents. This information must be 
submitted to the DOE field and area office as part of an annual report 
describing the status and inventory of biological etiologic agents and 
the program. One commenter (Ex. 42) requested definition of the terms 
``status'' and ``readily retrievable inventory'' and sought 
clarification on what DOE expectations were for the contents of the 
annual status report. DOE agrees that the term ``readily retrievable'' 
was unclear and has removed the term from the text of Appendix A 
section 7(a)(2) in the final rule. DOE interprets ``status'' as 
including information that will determine whether the biological 
etiologic agents are on site, dead or live, frozen or in active storage 
as well as information on the person(s) responsible. This information 
is necessary to keep DOE informed on the biological etiologic agent 
activities being undertaken on the Departments sites.
    Appendix A section 7(a)(3) requires the submission of each 
Laboratory Registration/Select Agent Program registration application 
package to the head of the appropriate DOE field element. One commenter 
(Ex. 15) was concerned that this provision may affect every revision to 
the registration, including those involving staff transfers of 
materials. DOE's intent is for the provision to apply to the initial 
registration submittal because this will allow DOE to become aware of 
all bioagent activity. However, staff transfers of materials need not 
be reported to DOE as long as the Department of Health and Human 
Services and the Department of Agriculture rules and requirements are 
met. Other commenters (Exs. 15, 42) asked for the withdrawal of 
supplemental proposed section 851.207(c). DOE disagrees with this 
request. As reported by DOE-IG (DOE/IG-0492), DOE may not have 
knowledge of the presence of biological agents on a site. Appendix A 
section 7(a)(4) was included to ensure that DOE is aware of all 
biological agent activity occurring at DOE sites, as well as any 
information submitted to the Center for Disease Control and Prevention 
(CDC) regarding how and where biological agents will be used.
    Appendix A section 7(a)(4) of the final rule contains provisions 
for submission to the appropriate Head of 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. The completed copy of the Form EA-
101, documenting final disposition and/or destruction of the select 
agent must also be submitted to the appropriate Head of DOE Field 
Element within 10 days of completion of the Form EA-101.
    Appendix A section 7(a)(5) of the final rule requires the IBC to 
confirm that the site safeguards and security plans and emergency 
management programs address biological etiologic agents, especially 
biological select agents. One commenter asserted that the 
implementation of requirements in supplemental proposed section 
851.207(e) would result in high costs to the contractors. As stated 
above, DHHS and the Department of Agriculture have established 
requirements for Security and Emergency Response plans through 42 CFR 
Part 73.11 and 73.12. These rules are enforced by DHHS and the 
Department of Agriculture, not DOE. Therefore, Appendix A section 
7(a)(5) is included to require the contractor to confirm that all site 
safeguards and security plans and emergency management programs that 
address biological etiologic agents are in place.
    According to the requirements in Appendix A section 7(a)(6), the 
IBC must establish an immunization policy for personnel working with 
biological etiologic agents based on the evaluation of risk and benefit 
of immunization. The CDC has established guidelines for immunizations 
and these guidelines should be consulted in the establishment of an 
immunization policy.

8. Occupational Medicine

    Appendix A section 8 of the final rule (formerly supplemental 
notice of proposed rulemaking section 851.210), establishes the 
requirements for occupational medicine services. Appendix A section 
8(a) requires contractors to provide comprehensive occupational 
medicine services to workers employed at a covered work place. One 
commenter (Ex. 33) expressed concern that supplemental proposed section 
210 included many additional requirements for the preparation and 
implementation of occupational medical programs beyond those in the 
initial proposed rule. The commenter also believed that supplemental 
proposed section 851.210 expanded requirements for site

[[Page 6918]]

occupational medical directors (SOMD) in other areas of occupational 
medicine regardless of the nature or size of DOE activities. DOE has 
considered the comment but believes that the additions are necessary. 
The practice of occupational medicine is constantly evolving and 
medical advances which must be incorporated into site occupational 
medicine services to ensure the health of workers in maintained and/or 
improved, and that DOE maintains its medical programs consistent with 
occupational medicine practice standards and guidelines.
    Another commenter (Ex. 48) asserted that the occupational medical 
services specified in supplemental proposed section 851.210 would 
result in substantial cost for non-management and operating 
contractors. DOE does not agree with the commenter's assertion a 
requirement that all levels of contractors provide comprehensive 
occupational medicine services will create a negative health and safety 
situation for DOE, including opening DOE up to increased medical 
liability. In DOE's experience, small contractors and subcontractors 
are capable of providing more that a minimal OSHA-level required 
protection and health care. Therefore, the final rule retains the 
occupational medicine service provisions.
    Two commenters (Exs. 16, 28) believed that program-type documents 
to supplement the worker safety and health program were not necessary. 
The commenters recommended that this requirement be deleted, or 
integrated with the overall worker safety and health program. DOE does 
not agree with the commenter and believes that the documents should be 
a part of the overall worker safety and health program.
    Another commenter (Ex. 48) questioned if a contractor operating a 
limited occupational medicine program, such as a first aid station 
appropriate for construction, is required to adopt all of the elements 
in supplemental proposed section 851.210, assuming that the contractor 
desires to continue providing these services after the effective date 
of the rule. DOE contends that operating a first aid station is but one 
element of a comprehensive occupational medicine program (OMP). DOE 
intends for this rule to apply to all covered contractors, including 
construction contractors.
    One commenter (Ex. 16) felt that the use of the term ``workplace'' 
in supplemental proposed section 851.210(a) could easily result in 
unintended confusion and extensive debate for sites where DOE utilizes 
multiple contractors. DOE agrees with the commenter and has modified 
the provision in Appendix A section 8(a) of the final rule.
    One commenter (Ex. 42) believed that supplemental proposed rule 
section 851.210(a) was unclear in what was considered to be a 
``comprehensive'' occupational medical program or services, and 
requested that DOE provide elements of the OMP in the rule. DOE does 
not agree with the commenter and notes that the rules' implementation 
guide is the appropriate place to provide elements of the occupational 
medicine program.
    Three commenters (Exs. 28, 45, 51) recommended removing: ``At sites 
with operations performed by more than one contractor, several 
contractors may agree to use services provided under a single 
contractor's OMP,'' from supplemental proposed section 851.210(a) 
because they felt that this language was specific to multi-employer DOE 
sites and need not be included in the rule. DOE agrees, and has deleted 
this sentence from the final rule. However, contractors at multi-
employer sites may choose to follow this approach to comply with the 
medical services requirement.
    Appendix A section 8(a)(1) of the final rule establishes that the 
occupational medicine services must provide services for workers who 
work on a DOE site for more than 30 days in a 12-month period and for 
workers who are enrolled for any length of time in a medical or 
exposure monitoring program required by this rule and/or any other 
applicable Federal, State or local regulation, or other obligation as 
specified in Appendix A section 8(a)(2) of the final rule.
    Appendix A section 8(b) of the final rule establishes that 
occupational medicine services must be under the direction of a 
graduate of a school of medicine or osteopathy who is licensed for the 
practice of medicine in the state in which the site is located.
    Appendix A section 8(c) of the final rule requires that 
occupational medicine physicians, occupational health nurses, 
physician's assistants, nurse practitioners, psychologists, employee 
assistance counselors, and other occupational health personnel 
providing occupational medicine services must be licensed, registered, 
or certified as required by Federal or State law where employed.
    Appendix A section 8(d) of the final rule states that contractors 
must provide the occupational medicine providers with access to hazard 
information by promoting its communication, coordination, and sharing 
among operating and environment, safety, and health protection 
organizations. One commenter (Ex. 54) recommended adding workers and 
their representatives to supplemental proposed section 851.210(d) which 
requires contractors to promote communication and coordination between 
all environmental, safety, and health groups. DOE agrees that worker 
participation is a critical component of a successful safety and health 
program. This section imposes requirements only on contractors to 
provide necessary information to occupational medicine providers
    Appendix A section 8(d)(1) of the final rule requires contractors 
to provide occupational medicine providers with access to information 
about site and employee hazards and exposures and any changes in them. 
Specifically, Appendix A section 8(d)(1)(i) of the final rule requires 
current information about actual or potential work-related site hazards 
(chemical, radiological, physical, biological, or ergonomic); section 
8(d)(1)(ii) requires employee job-task and hazard analysis information, 
including essential job functions; section 8(d)(1)(iii) requires actual 
or potential work-site exposures of each employee; and section 
8(d)(1)(iv) specifies information on personnel actions resulting in a 
change of job functions, hazards or exposures to be provided to the 
occupational medicine providers.
    One commenter (Ex. 48) expressed concern about supplemental 
proposed section 851.210(d)(3) because it would require the SOMD to be 
engaged in determining the need for surveillance in each individual's 
case. The commenter stated that in some cases, such as union 
construction work, the collective bargaining agreement may not permit 
medical screening of workers for fitness. DOE understands the 
commenter's concern and has omitted the language, ``prior to medical 
placement or surveillance evaluations'' from final rule Appendix A 
section 8(d)(1)(iii).
    One commenter (Ex. 48) expressed concern that supplemental proposed 
section 851.210(d)(i) included ergonomic assessments. The commenter 
asked what would such a requirement involve (i.e., what guidelines and 
applicable standards would be used; what constitutes an adequate 
ergonomic evaluation; what are the required credentials for an 
evaluator; and what constitutes a violation). DOE notes that a detailed 
explanation of ergonomics and the information requested by the comment 
is not appropriate for a rule, but will be discussed in the 
implementation guide to the rule.
    One commenter (Ex. 49) recommended that DOE change

[[Page 6919]]

supplemental proposed section 851.210(d)(1) to read: ``Current 
available information about actual or potential work-related site 
hazards (chemical, physical, biological, or ergonomic);'' supplemental 
proposed section 851.210(d)(2) to read: ``Employee job-task and hazard 
analysis information, including essential job functions, as requested 
by the SOMD;'' and supplemental proposed section 851.210(d)(3) to read: 
``Actual or potential work-site exposures of each employee prior to 
medical placement or surveillance evaluations, as requested by the 
SOMD.'' DOE elected not to add the suggested qualifiers. Limiting the 
requirement only to ``available'' information or only that information 
``requested by the site occupational medicine provider'' would 
significantly constrain the collection and dissemination of critical 
data.
    Several commenters (Exs. 16, 36, 42, 49) believed that supplemental 
proposed section 851.210(d)(4) which would require the SOMD to be 
notified of employee job transfers should only be required if the 
transferred employee would be exposed to new or different hazards. DOE 
believes that the occupational medicine provider should know where to 
locate the employee for health related follow-ups, and how to contact 
an employee in the case of an emergency.
    Appendix A section 8(d)(2) of the final rule requires contractors 
to notify the occupational medicine providers 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). One commenter (Ex. 48) stated that the 
proposed rule section 851.210(d)(5) would place a significant burden on 
the SOMD in cases of off-the-job illness, and did not specify if the 
injury or illness must be work-related or not.
    Appendix A section 8(d)(3) requires contractors must provide the 
occupational medicine provider information on, and the opportunity to 
participate in, worker safety and health team meetings and committees. 
One commenter (Ex. 25) expressed concern that the proposed rule section 
851.210(d)(6) required SOMDs to be offered the opportunity to 
participate in worker safety and health team meetings and committees, 
yet worker safety and health teams or committees were not mentioned 
anywhere else in the supplemental proposed rule.
    Appendix A section 8(d)(4) requires that contractors provide 
occupational medicine providers with access to the workplace for 
evaluation of job conditions and issues relating to workers' health.
    Appendix A section 8(e) stipulates that a designated occupational 
medicine provider must: (1) Plan and implement the occupation medicine 
services; and (2) Participate in worker protection teams to build and 
maintain necessary partnerships among workers, their representatives, 
managers, and safety and health protection specialists in establishing 
and maintaining a safe and healthful workplace.
    One commenter (Ex. 16) recommended that DOE delete the proposed 
rule section 851.210(e)(2) that required a formal written plan 
detailing methods and procedures implementing the OMP on the basis that 
such a requirement would place an unnecessary burden on the SOMD since 
many contractor OMPs currently require a series of medical program 
procedures, rather than a higher level program document. The commenter 
further stated that Subpart B already required an overall written 
worker safety and health program that must provide for effective 
implementation of the worker safety and health requirements of Subpart 
C. DOE notes the commenters concerns and has revised the rule 
accordingly.
    Appendix A section 8(f) requires that a record, containing any 
medical, health history, exposure history, and demographic data 
collected for the occupational medicine purposes, must be developed and 
maintained for each employee for whom medical services are provided. 
Furthermore, the rule stipulates that all occupational medical records 
must be maintained in accordance with Executive Order 13335, Incentives 
for the Use of Health Information Technology. Several commenters (Exs. 
5, 15, 25, 29, 39, 42, 48) expressed concern over the proposed rule 
provision 851.210(f) that required all records containing any medical, 
clinical, health history, exposure history, and demographic data 
collected under OMP be kept in electronic format, beginning January 
2007. Most of these commenters cited significant costs as the basis for 
their concern. Another commenter (Ex. 49) believed that the proposed 
rule provision required all medical records collected under OMP be kept 
in electronic format, beginning January 2007, should be clarified to 
apply only for medical records generated on or after January 1, 2007. 
DOE has modified the final rule to be consistent with Executive Order 
13335 which requires that medical records be available electronically 
by 2015.
    Appendix A section 8(f)(1) requires that employee medical, 
psychological, and employee assistance program (EAP) records must be 
kept confidential, protected from unauthorized access, and stored under 
conditions that ensure their long-term preservation. Furthermore, the 
rule specifies that psychological records must be maintained separately 
from medical records and in the custody the designated psychologist. 
This provision is consistent with 10 CFR 712.38(b)(2) which applies to 
the DOE Human Reliability Program. Appendix A section 8(f)(2) 
establishes that access to these records must be provided in accordance 
with DOE regulations implementing the Privacy Act and the Energy 
Employees Occupational Illness Compensation Program Act.
    One commenter (Ex. 62) requested that the proposed rule provision 
851.210(f)(1) prohibits the SOMD and their staff from providing 
employers or their lawyers with personal medical information without 
the employee's consent. DOE notes that all medical information is 
subject to the Privacy Act of 1974 and the Health Insurance Portability 
and Accountability Act and is not released without signed consent of 
the affected worker or other legal authorization.
    Appendix A section 8(g) specifies that the occupational medicine 
services provider must determine the content of the worker health 
evaluations. These evaluations must be conducted under the direction of 
a licensed physician, in accordance with current sound and acceptable 
medical practices, and in accordance with all pertinent statutory and 
regulatory requirements, such as the Americans with Disabilities Act. 
One commenter (Ex. 48) suggested that DOE eliminate supplemental 
proposed rule section 851.210(f)(2) because the rule extended the 
occupational medical program into the domain of disability evaluations 
under the Americans with Disabilities Act (ADA). DOE disagrees and has 
retained the provision in the final rule since occupational medicine 
service providers are required to conduct post offer/pre-placement 
physical and mental examinations in accordance with the ADA.
    Several commenters (Exs. 16, 25, 47, 49) took exception to the 
requirement in proposed rule section 851.210(f)(3) for the SOMD to 
maintain an up-to-date list of all medical evaluations and tests that 
are offered and to submit this list annually through the Cognizant 
Field Element to the Office of Environment, Safety and Health. These 
commenters suggested eliminating this requirement. One commenter (Ex. 
16) suggested the

[[Page 6920]]

process would be more efficient if the list of medical evaluations was 
included in the information in the overall Worker Safety and Health 
Program. DOE agrees with the commenters and has eliminated the 
requirement from the final rule.
    Appendix A section 8(g)(1) requires that workers must be informed 
of the purpose and nature of the medical evaluations and tests offered 
by the occupational medicine provider. Specifically, Appendix A section 
8(g)(1)(i) requires that the purpose, nature and results of evaluations 
and tests must be clearly communicated verbally and in writing to each 
worker that is being provided with testing and that the communication 
must be documented in the worker's medical record as specified in 
Appendix A section 8(g)(1)(ii).
    Two commenters (Exs. 15, 47) proposed elimination of the provision 
in proposed rule section 851.210(f)(5) that required medical test and 
result related communication be documented in the medical chart with 
signatures of both the occupational health examiner and worker. These 
commenters pointed out that supplemental proposed rule section 
851.210(f)(4) required communication of the purpose and nature of the 
tests and suggested this, along with inclusion of language such as 
``and individual results discussed with the employee,'' could be 
sufficient to meet the requirement of proposed rule section 
851.210(f)(5). One of the commenters (Ex. 15) asserted that the 
requirement was ``far in excess of the community standard for the 
practice of medicine for routine medical tests.''
    Conversely, in order to further strengthen the requirement in 
proposed rule section 851.210(f)(5) and prevent post-examination 
changes to employee medical records without the employee's consent, one 
commenter (Ex. 62) favored adding the language, ``modifications to an 
employee's medical chart cannot be made without the concurrence and 
signature of the employee.'' DOE believes that the site occupational 
medicine records are created and maintained, updated, and reviewed in 
accordance with accepted medical practice. DOE regulations and medical 
professionals have explicit guidelines on how to modify records so that 
changes are tracked. Additionally, DOE notes that employees may 
officially request a copy of their record. After reviewing the record, 
if the employee wishes to provide a dated, signed, written statement 
about an element within the record, they may do so. The attachment from 
the employee will remain with the record in accordance with DOE records 
management regulations.
    Appendix A section 8(g)(2) requires certain health evaluations to 
be conducted when deemed necessary by the occupational medicine 
provider for the purpose of providing initial and continuing assessment 
of an employee's fitness for duty. One commenter (Ex. 62) believed that 
the rule should explicitly bar the SOMD from ``prescribing tests, 
including behavioral science exams, for purposes of carrying out 
retaliation against employees who were engaged in protected activities, 
such as reporting waste, fraud, abuse or unlawful or unsafe activities, 
unless the un-coerced consent of the employee was secured in writing.'' 
DOE believes that occupational medicine providers are very sensitive to 
informed consent which causes them to explain and ask workers to sign 
consent for evaluations and examinations. DOE further notes that 
workers have the right and option to decline any portion of an 
examination, or all medical evaluations or examinations. However, 
refusing mandatory examinations may result in difficulties placing the 
worker appropriately in a job.
    Appendix A section 8(g)(2)(i) requires that at the time of 
employment entrance or transfer to a job with new functions and 
hazards, a medical placement evaluation of the individual's general 
health and physical and psychological capacity to perform work be 
conducted to establish a baseline record of physical condition and 
assure fitness for duty. One commenter (Ex. 54) sought clarification of 
the criteria for ``emotional capacity'' as referred to in supplemental 
proposed rule section 851.210(f). The commenter expressed concern that 
this requirement would be interpreted to mean that the determination of 
emotional capacity was left entirely to the SOMD with no apparent 
limitations or requirements. In response to this concern, DOE has 
replaced the term ``emotional capacity'' with ``psychological 
capacity'' in the final rule. DOE further notes that the final rule 
makes allowance for the involvement of licensed, registered or 
certified psychologists in the occupational medicine service process. 
Thus DOE believes that such professionals have the requisite training 
and knowledge to apply clinically established criteria in the 
determination of an individual's psychological capacity.
    One commenter (Ex. 47) suggested the term ``medical placement 
examination'' in supplemental proposed rule section 851.210(f)(6)(i) be 
replaced with the term ``medical placement evaluation.'' DOE has 
modified the language in final rule Appendix A section 8(g)(2)(i) to 
include the term ``evaluation'' in place of ``examination.''
    Two commenters (Exs. 39, 49) sought clarification of the term ``job 
transfer.'' One commenter (Ex. 49) suggested defining the term as 
``involving new or different hazards,'' while the other commenter (Ex. 
39) inquired whether both new and existing employee movement between 
jobs was covered under the provision. DOE notes that final rule 
Appendix A section 8(g)(2)(i) clarifies ``job transfers'' as transfers 
to jobs with new functions and hazards. Additionally, DOE notes that 
job transfers for the purposes of reporting to the site occupational 
medicine department, remains the same regardless of whether the 
employee is new or existing and means any change in job tasks, titles, 
exposures, and/or job description.
    Appendix A section 8(g)(2)(ii) specifies that periodic, hazard-
based medical monitoring or qualification-based fitness for duty 
evaluations as required by regulations and standards, or as recommended 
by the occupational medicine services provider, will be provided at the 
required frequency. DOE did not receive comments on this proposed 
provision during the public comment period.
    Appendix A section 8(g)(2)(iii) specifies use of diagnostic 
examinations to evaluate employee's injuries and illnesses in order to 
determine work-relatedness, the applicability of medical restrictions, 
and referral for definitive care, as appropriate. One commenter (Ex. 
47) favored either eliminating the phrase ``degree of disability'' or 
substituting the phrase with ``apply medical restrictions as 
appropriate.'' DOE has eliminated the phrase ``degree of disability'' 
in the corresponding final rule Appendix A section 8(g)(iii). 
Additionally DOE notes that the medical restriction provision has been 
greatly modified in the final rule section Appendix A section 8(h).
    Another commenter (Ex. 25) expressed concern that supplemental 
proposed rule section 851.210(f)(6)(iii), would pose a challenge for 
the SOMD to win the trust of workers in the determination of the work-
relatedness of disease and degree of disability, given that the 
occupational medicine physician worked for the contractor (or multiple 
contractors). Additionally the commenter expressed the opinion that 
determination of work-relatedness would increase the potential for 
worker compensation claims and associated liability, which 
``contractors would rather avoid regardless of the merits of

[[Page 6921]]

the claim.'' DOE believes that a basic tenet of occupational medicine 
is to assist workers and management in the determination of the work-
relatedness of illness and injury. Hence trained and certified 
occupational health providers are expected to retain professional 
impartiality and decide claims on the basis of their merits. 
Furthermore to minimize the potential for any subjectivity in medical 
determinations, DOE has eliminated use of the phrase ``degree of 
disability'' in the final rule Appendix A section 8(g)(iii).
    Appendix A section 8(g)(2)(iv) specifies that after a work-related 
injury or illness or an absence due to any injury or illness lasting 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 psychological 
capacity to perform work and return to duty. One commenter (Ex. 54) 
suggested that supplemental proposed rule section 851.210(f)(6)(iv) 
clarify that contract language took precedence over SOMD 
determinations. The commenter proposed including a requirement for a 
third party medical review (at the expense of the contractor) in the 
event of a disagreement between the SOMD and a worker's own physician. 
DOE believes that the occupational medicine provider's recommendation 
does not supplant contractual requirements regarding return to work 
(RTW). The occupational service provider is responsible for advising 
management on the medically appropriate reinstatement of a worker 
following an injury or illness based on input from the worker's 
personal physician and other sources.
    One commenter (Ex. 15) expressed concern that the requirement for 
return to work evaluations infringed individual privacy rights with 
respect to vacation absence and would result in additional costs to the 
contractor. The commenter proposed that for non-work related illness 
(such as surgery), it was more appropriate and cost effective to have 
the worker's personal surgeon make the determination regarding fitness 
for return to duty. Another commenter (Ex. 48) favored elimination of 
return to work evaluations after absences due to illnesses or injury 
for 5 or more days. DOE notes that the occupational medical providers 
use the written recommendations regarding restrictions that are 
provided by private physicians. However, occupational medicine 
providers must conduct return-to-work fitness-for-duty evaluations and 
make determinations about whether the employee can safely return to 
their assigned job tasks in the interest of protecting the worker, co-
workers, and the company.
    Many commenters (Exs. 16, 25, 36, 42) sought additional 
clarification on whether return to work health evaluations were merely 
for absences due to injuries or illnesses, or some other unique 
situation (e.g., return from active military duty) that were deemed 
appropriate by the SOMD, and not for return to work from vacations or 
other non-medically related absences. DOE believes that the 
corresponding final rule Appendix A section 8(g)(2)(iv) adequately 
clarifies that return to work evaluations are necessary only when an 
employee has been absent for illness or injury for 5 or more days.
    Appendix A section 8(g)(2)(v) provides that at the time of 
separation from employment, individuals shall be offered a general 
health evaluation to establish a record of physical condition. DOE 
received many comments with respect to the need for termination exams. 
One commenter (Ex. 49) suggested that termination exams under 
supplemental proposed rule section 851.210(f)(6)(v) only be required 
for ``employees enrolled in HAZWOPER or laser surveillance programs at 
the time of separation.'' DOE disagrees and believes it is imperative 
that termination exams and evaluations be conducted on all workers in 
order to minimize the liability impact of work-related injury and 
illness claims. Another commenter (Ex. 25) sought clarification of why 
a termination exam was required. DOE notes that termination 
examinations are not fitness-for-duty; rather they are examinations to 
document the health status and known exposures of the employees when 
they leave employment at DOE.
    Several commenters (Ex. 16, 36, 42) noted that contractors did not 
have the ability to require a terminating individual to participate in 
the evaluations required by supplemental proposed rule section 
851.210(f)(6)(v), which specifies that a health evaluation is required 
for individuals at the time of separation from employment. These 
commenters suggested that the rule be modified to require contractors 
to only offer a medical evaluation at termination. DOE agrees with the 
commenters suggestion and has modified the language in final rule 
Appendix A section 8(g)(2)(v) to only require contractors to offer 
individuals, at the time of separation from employment, a general 
health evaluation to establish a record of physical condition.
    Appendix A section 8(h) requires the occupational medicine provider 
to monitor ill and injured workers to facilitate their rehabilitation 
and safe return to work and to minimize lost time and its associated 
costs. Two commenters (Exs. 30, 62) expressed concern that the 
requirement in supplemental proposed rule section 851.210(g)(2), for 
the occupational medicine program to ``monitor ill and injured workers 
to facilitate their rehabilitation and safe return to work and to 
minimize lost time and its associated costs,'' encourages the SOMD to 
return workers to the job before they are well. The commenters asserted 
that this placed the SOMD in the posture of serving two masters: the 
patient's health and well being, and the economic interests of the 
contractor. As previously discussed in this section, occupational 
medicine providers are bound by medical and legal obligations to put 
the patient's interest first and make recommendations to the contractor 
about fitness-for-duty and/or return-to-work status without breaching 
confidence of a non-occupational diagnosis or condition without the 
patient's permission. For example, the occupational medicine provider 
can state that the worker has a condition for which restrictions are 
recommended, and state specifically what those restrictions are. 
Restrictions are based on the best interest of the physical and mental 
health and well-being of the patient/worker and on the safety and well-
being of co-workers. When a contractor has no work for which that 
individual is qualified at that time, then the patient/worker must 
abide by the contractor's employment policies and benefits that are 
available.
    Appendix A section 8(h)(1) the occupational medicine provider to 
place an individual under medical restrictions when health evaluations 
indicate the worker should not perform certain job tasks. Furthermore, 
the occupational medicine provider must notify the worker and 
contractor management when employee work restrictions are imposed or 
removed.
    Two commenters (Exs. 30, 54) noted that supplemental proposed rule 
section 851.210(g) requires the SOMD to place an individual under 
medical restrictions when health evaluations indicate that the worker 
should not perform certain job tasks. However, the commenters pointed 
out that the proposed rule has no requirement for medical removal 
protection (i.e., no loss of pay if transferred to a job which pays 
less or inability to work due to a work related problem as is the case 
with OSHA's Lead standard). The commenters suggested that such a 
provision for medical removal protection should be included in the 
rule, whether required

[[Page 6922]]

by an OSHA regulation or not. DOE believes that medical removal 
protection is an inappropriate remedy in this instance. The primary 
purpose of medical removal protection is to reduce or eliminate the 
potential for exposure to toxic materials in workers who display 
evidence of overexposure to that material. Workers under medical 
restriction may be protected by the Americans with Disability Act, 
Workers' Compensation Programs, or other means.
    Appendix A section 8(i) stipulates that occupational medicine 
provider's physicians and medical staff must, on a timely basis, 
communicate results of health evaluations to management and to safety 
and health protection specialists in order to facilitate the mitigation 
of worksite hazards. Three commenters (Exs. 47, 54, 55) sought 
clarification of the requirement in proposed rule section 851.210(g)(3) 
for the ``communication of results of health trend evaluations to 
management and site worker health protection professionals.'' One of 
the commenters (Ex. 47) suggested that only ``identified'' health 
trends should be included under this provision, while other commenters 
(Exs. 54, 55) suggested the inclusion of worker health and safety 
committees and worker representatives as recipients for the health 
evaluation trend data. DOE has eliminated the term ``trend'' and only 
requires ``communication of results of health evaluations to management 
and health protection specialists'' in the corresponding final rule 
Appendix A section 8(i). DOE further notes that worker safety and 
health committees and worker representatives can obtain trend data on 
illness and injury and trend data on safety from the Office of 
Environment, Safety and Health's offices of Epidemiology and Health 
Surveillance, Performance and Assessment, respectively.
    Appendix A section 8(j) specifies that the occupational medicine 
provider must include measures to identify and manage the principal 
preventable causes of premature morbidity and mortality affecting 
worker health and productivity. In particular, Appendix A section 
8(j)(1) requires the occupational medicine provider to include programs 
to prevent and manage these causes of morbidity when evaluations 
demonstrate their cost effectiveness. Additionally, Appendix A section 
8(j)(2) requires contractors to make available to the occupational 
medicine provider appropriate access to information from health, 
disability, and other insurance plans (de-identified as necessary) in 
order to facilitate this process.
    Appendix A section 8(k) establishes that the occupational medicine 
services provider must review and approve the medical and behavioral 
aspects of employee counseling and health promotional programs. One 
commenter (Ex. 48) favored eliminating the requirement in proposed rule 
section 851.210(h) and replacing it with the language, ``Occupational 
medical services and medical surveillance must be provided to employees 
as required by applicable OSHA regulations.'' DOE believes that 
limiting the services to only what is required by OSHA regulations 
places undue constraints on the occupation medicine program. The 
services listed constitute many of the elements of a comprehensive 
occupation medicine program.
    Appendix A section 8(k)(1) specifies that contractor-sponsored or 
contractor-supported EAPs must be reviewed and approved by the 
occupational medicine services provider. One commenter (Ex. 5) 
suggested that DOE should offer alternatives for the SOMD review, such 
as review by the medical director of the EAP programs, because many 
companies use corporate sponsored programs that are not reviewed by the 
SOMD. DOE believes that the occupational medicine provider must review 
and approve all services offered to employees because the occupational 
medicine provider has overall responsibility for ensuring that 
employees are offered appropriate and comprehensive services.
    Appendix A section 8(k)(2) specifies that contractor-sponsored or 
contractor-supported alcohol and other substance abuse rehabilitation 
programs must be reviewed and approved by the occupational medicine 
services provider.
    Appendix A section 8(k)(3) specifies that contractor-sponsored or 
contractor-supported wellness programs must be reviewed and approved by 
the occupational medicine services provider. DOE did not receive 
comments on this proposed provision during the public comment period.
    Additionally, Appendix A section 8(k)(4) of the final rule 
specifies that the occupational medicine services provider must review 
the medical aspects of immunization programs, blood-borne pathogens 
programs, and bio-hazardous waste programs to evaluate their 
conformance to applicable guidelines. One commenter (Ex. 16) 
recommended that proposed rule section 851.210(h)(4) be modified to 
include the language, ``The SOMD must review the medical aspects of * * 
* programs to evaluate their conformance to applicable guidelines, as 
determined appropriate by the SOMD.'' DOE believes that such guidelines 
put forth by OSHA and CDC qualify as common industry knowledge and that 
qualified (licensed/registered/ certified) occupational medicine 
providers as required in Appendix A section(c) are aware of such 
guidelines.
    Appendix A section 8(k)(5) requires that the occupational medicine 
services provider must develop and periodically review medical 
emergency response procedures included in site emergency and disaster 
preparedness plans. This provision further stipulates that medical 
emergency responses must be integrated with nearby community emergency 
and disaster plans.
    Two commenters (Exs. 5, 16) expressed concerns with respect to 
emergency and disaster preparedness plans and how they integrate within 
the occupational medicine requirements under proposed rule section 
851.210(i)(1). One commenter (Ex. 16) suggested the language be 
modified to require ``the SOMD to review and approve the medical 
portion of the site emergency and disaster preparedness plans and 
procedures.'' Another commenter (Ex. 5) suggested that contrary to the 
requirements of proposed rule sections 851.210(i)(1) and (2), in small 
communities, the SOMD may review the site emergency and disaster 
preparedness plans, but the development, and integration of such plans 
with community plans is done by the management and operating emergency 
management or occupational health staff, not by the local physician.
    With reference to supplemental proposed sections 851.210(i)(1) and 
(2), one commenter (Ex. 5) raised the issue that previous DOE guidance 
on community plan integration specifically referenced mass casualties. 
However as written, the proposed rule did not include any requirement 
for mass casualty planning. DOE notes that the DOE order on emergency 
preparedness addresses mass casualties. Additionally occupational 
medicine programs are required to be integrated into the Emergency 
Plans at sites.

9. Motor Vehicle Safety

    Appendix A section 9 of the final rule (formerly supplemental 
notice of proposed rulemaking section 851.206), provides the motor 
vehicle safety program requirements. This section adopts the motor 
vehicle safety provisions in DOE Order 440.1A. These provisions allow 
continued contractor flexibility in determining the most efficient 
methods for achieving compliance and targeting local accident and 
injury trends based on local driving and operating conditions. The 
motor

[[Page 6923]]

vehicle safety requirements of this section apply to operation of 
industrial equipment powered by an electric motor or an internal 
combustion engine, including, fork trucks, tractors, and platform lift 
trucks and similar equipment. Appendix A section 9(a) of the final rule 
requires contractors to 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).
    Two commenters (Exs. 27, 45) asserted that the proposed 
requirements which are in Appendix A section 9 of the final rule, 
appear to be a summarization of existing DOE Orders and would likely 
require extensive review and analysis for contractors to come into 
compliance with the rule requirements. Since motor vehicle requirements 
in the final rule are the same as the requirements in DOE Order 440.1A, 
DOE believes that contractors are already in compliance with DOE Order 
440.1A should require minimal, if any effort to implement the rule 
requirements.
    Another commenter (Ex. 48) argued that the requirements in Appendix 
A section 9 should be deleted because motor vehicle safety is 
adequately covered by OSHA regulation and state laws, including the 
requirements for training and qualification of powered industrial 
trucks. DOE disagrees with the commenter and has retained the 
provisions for motor vehicle safety.
    Another commenter (Ex. 40) contended that the requirement that each 
contractor implement a motor vehicle safety program would be 
problematic in cases where many contractors share the same space and 
traffic patterns. DOE notes, each contractor should coordinate with the 
other contractors to ensure that there are clear roles, 
responsibilities and procedures that will ensure the safety and health 
of workers at multi-contractor workplaces.
    Appendix A section 9(b) mandates that 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. Appendix A sections 9(c)(1) through (8), specify the 
different elements that must be addressed by the contractor's motor 
vehicle safety program. Specifically, these elements include: (1) 
Vehicle licensing; (2) use of seat belts and other safety devices; (3) 
training for vehicle operators; (4) vehicle maintenance and inspection; 
(5) traffic control and signage; (6) speed limits and other traffic 
rules; (7) public awareness programs to promote safe driving; (8) and 
enforcement provisions.
    Two commenters (Ex. 39, 40) criticized the corresponding provisions 
of the supplemental proposed rule, specifically sections 851.206(c)(1) 
through (3) on the ground that they duplicate the training, testing and 
licensing requirements of local and state government agencies that 
regulate motor vehicles. DOE disagrees with the commenters and has 
retained the requirements in the final rule.
    Several commenters (Exs. 16, 29, 36, 48) objected to the use of the 
word ``incentive'' in supplemental proposed rule section 851.206(c)(7), 
which stated that awareness campaigns and incentive programs to 
encourage safe driving must be part of the motor vehicle safety 
program. Their rationale was that the word incentive implies monetary 
reward, and it would be inappropriate to include this type of 
requirement in a regulation that subjects contractors to civil penalty 
for violations. DOE disagrees and notes that contractors have been 
subject to the enforcement (through contract mechanisms) of this exact 
requirement through the provisions of DOE Order 440.1A for close to ten 
years. DOE is unaware of any difficulties associated with either 
compliance with or enforcement of this provision. DOE's intent with the 
use of the term ``incentives programs'' as clarified in Appendix A 
section 9(c)(7) of the final rule is to refer to any program developed 
by the contractor to encourage safe driving among its workforce. This 
provision provides contractors the latitude to determine the types of 
incentives programs they feel are appropriate and effective. The 
provision does not limit the contractor to or restrict them from the 
use of monetary incentives.
    Another set of commenters (Exs. 20, 36, 39) expressed several 
concerns about the supplemental proposal, included in section 
851.206(c)(8) to require enforcement provisions to the motor vehicle 
safety program. The applicability of the enforcement provisions to DOE 
sites with multiple on-site entities was of concern to one commenter 
(Ex. 39). A second commenter (Ex. 20) questioned how the enforcement 
provisions would be implemented (i.e., whether the DOE police, a 
Federal magistrate, or the contractor's staff would be authorized to 
enforce the program provisions). A third commenter (Ex. 36) contended 
that the enforcement provisions in the proposed section would infringe 
on the employee-employer relationship and go beyond commercial and 
regulatory practice. Again, DOE notes that the motor vehicle provisions 
of this final rule are taken directly from DOE Order 440.1A and have 
been applicable to contractor operations for almost ten years. DOE 
expects that contractors will use their existing motor vehicle safety 
enforcement provisions developed in response to DOE Order 440.1A to 
comply with the enforcement provisions required under Appendix A 
section 9(c)(8) of the final rule.

10. Electrical Safety

    Three commenters (Ex. 17, 18, 53) recommended that DOE add a new 
rule section related to electrical safety and worker protection from 
electrical hazards. One of these commenters (Ex. 53) recommended that 
the proposed Electrical Safety section include NFPA 70E (Standard for 
Electrical Safety in the Workplace). Another (Ex. 29) questioned if DOE 
plans to publish an electrical safety implementation guide. The 
commenter believed that this would be helpful for understanding what 
DOE considers an ``acceptable approach'' for ``development of an 
integrated set of hazard controls.'' In response to these comments, DOE 
added Appendix A section 10 to the final rule, which requires 
contractors to implement a comprehensive electrical safety program that 
is appropriate for the activities at their site. This program must meet 
the applicable electrical safety codes and standards referenced in 
section 851.23 of the rule. As requested, the section 851.23 includes 
NFPA 70 and 70E among the mandatory electrical safety codes and 
standards. DOE notes its intent to publish appropriate guidance 
documents to assist contractors in their compliance efforts.

11. Nanotechnology Safety--Reserved

    The Department has chosen to reserve this section since policy and 
procedures for nanotechnology safety are currently being developed. 
Once these policies and procedures have been approved, the rule will be 
amended to include them through a rulemaking consistent with the 
Administrative Procedure Act.

12. Workplace Violence Prevention--Reserved

    The Department has chosen to reserve this section since the policy 
and procedures for workplace violence prevention are currently being 
developed. Once these policies and procedures have been approved, the 
rule will be amended to include them

[[Page 6924]]

through a rulemaking consistent with the Administrative Procedures Act.

Appendix B--General Statement of Enforcement Policy

    As a guidance document for enforcing this rule, the Department has 
issued a general statement of enforcement policy as Appendix B. The 
policy sets forth the general framework which DOE will follow to ensure 
compliance with the regulations and to issue enforcement actions and 
exercise civil penalty authority. The policy is not binding and does 
not create any legally enforceable requirements pursuant to this part. 
It only provides guidance as to how DOE generally expects to seek 
compliance with the proposed regulations and to deal with any 
violations of the proposed regulations. One commenter (Ex. 47) pointed 
out that the supplemental proposal made references to reasonable 
quality assurance measures and also suggested that contractor 
activities before the effective date of the rule should not be 
enforceable. DOE notes that the statute does not allow a contactor to 
be penalized under both sections (234A and 234C) of the law for the 
same violation. Also, the statute does not provide for grandfathering 
activities of the contractor before the effective date of the rule. 
Therefore, contractors must be in compliance on the effective date of 
the rule.
    Several commenters (Exs. 13, 29, 43, 58) suggested that terms and 
definitions be expanded or clarified in this section of the final rule. 
DOE feels that most of these terms are commonly understood and need not 
be defined in the rule. The rule incorporates commonly used and 
understood terms from both the nuclear safety enforcement program and 
worker safety and health programs in both DOE and the private sector. 
DOE clarifies in final rule section 851.3(b) that terms undefined in 
this part that are defined in the Atomic Energy Act of 1954 must have 
the same meaning as under that Act. DOE agrees that all of the 
different terms used to refer to violations and noncompliances in the 
supplemental proposal should be deleted.
    Three commenters (Exs. 28, 45, 51) supported the position that 
Appendix B should be deleted from the rule and issued as separate 
guidance. DOE disagrees. The rule establishes the worker safety and 
health requirements for contractors. If contractors fully comply with 
requirements of this rule, then there will be no enforcement actions 
taken against contractors. If, however, a contractor does not comply, 
it is necessary to delineate enforcement policies, as is done in 
Appendix B, so that contractors can understand the enforcement process. 
Appendix B establishes that necessary framework for the worker safety 
and health enforcement program.
    The policy is intended to achieve the dual purposes of promoting 
proactive behavior on the part of DOE contractors to improve worker 
safety and health performance and deterring contractors from violating 
the proposed regulations. The policy will encourage DOE contractors to 
self-identify, report and correct worker safety and health 
noncompliances and will provide adjustment factors to escalate or 
mitigate civil penalties on the basis of the nature of the violation 
and the behavior of the contractor. Several commenters (Exs. 5, 11, 16, 
28, 29, 31, 35, 36, 37, 43, 45, 47, 49, 51) took issue with the 
treatment of DOE Voluntary Protection Program (DOE VPP) sites in that 
special provisions were not made for their exemplary worker safety and 
health programs, such as exemption from programmed inspections and 
special mitigating factors during enforcement. DOE disagrees and 
believes that the performance of DOE VPP sites under this rule will 
validate the strength of their programs and that they will stand out as 
examples of excellent worker safety and health programs within DOE. DOE 
VPP sites will be subject to all of the provisions of this rule. In 
fact, DOE VPP sites should have the best worker safety and health 
programs and be in compliance with the worker safety and health 
requirements of this rule. DOE would not expect that these sites would 
need to report many Noncompliance Tracking System (NTS)-reportable 
violations. The Office of Price-Anderson Enforcement, however, will 
respond as necessary to significant violations if and when they do 
occur and develop appropriate programmed inspection strategies.
    One commenter (Ex. 39) took exception with the statement that 
contractors will almost always discover noncompliances before DOE. The 
commenter noted that DOE representatives are often co-located onsite 
with contractors and could identify violations before the contractor. 
DOE disagrees and maintains that contractors are in the best position 
to identify noncompliances. Since contractors are required to identify 
and evaluate hazards in the workplace, and have managers, supervisors 
and employees operating in the workplace on a routine basis, they 
should be the first to identify noncompliances. Contractors should not 
rely on DOE to identify noncompliances. If DOE finds noncompliances 
rather than the contractor, then this may indicate a weakness in the 
contractor's worker safety and health program. One commenter (Ex. 29) 
was concerned since DOE facility representatives are integrated into 
site operations and participate in collaborative assessments. This 
commenter argued that, as a result, DOE may learn of violations at the 
same time or before the contractor. The commenter felt that DOE 
discovery in such cases should not be held against the contractor when 
determining mitigation. As noted in the final rule, Appendix B section 
IX(b)(9)(a)(1) refers to violations identified by a DOE independent 
assessment or other formal program efforts.
    Another commenter (Ex. 21) questioned use of the term awareness in 
Appendix B section IX(2)(f), and argued that awareness would be 
difficult to prove on a large worksite, with multiple contractors and 
informal resolution of noncompliances on the spot, without 
documentation. Generally, contractors should be aware of the hazards in 
their covered workplace. Only in rare cases, would DOE accept that the 
contractor was unaware of hazards. DOE will consider the contactor's 
self-assessment program and the extent of management involvement in 
making such determinations.
    Several commenters (Exs. 15, 29, 31) took exception to applying 
enforcement provisions of the rule to subcontractors and suppliers, 
citing privity of contract, additional management burden, financial 
implications, and other disincentives for working with DOE. Contract 
privity is not an issue because DOE, through the Atomic Energy Act, has 
statutory authority to regulate health and safety matters of workers on 
the DOE sites covered under this rule. In fact, since DOE indemnifies 
subcontractors and suppliers against a nuclear incident under the 
statute, it does not receive further privity in any event. DOE will 
exercise this authority through this final rule and need not have a 
direct contractual relationship with subcontractors. This will not 
alleviate contractors of their responsibility to flow contractual 
requirements down to their subcontractors. The statute mandates 
indemnification and the statutory requirements apply without respect to 
any particular contract. Contractors remain contractually responsible 
for the activities of their subcontractors. DOE also plans to issue an 
enforcement guidance supplement (EGS) similar to the Occupational 
Safety and Health Administration (OSHA)'s multi-employer worksite 
policy, which explains how enforcement will be viewed with respect to 
multiple

[[Page 6925]]

contractors at a particular covered workplace.
    Appendix B incorporates the basic outlines of DOE's well-
established nuclear safety enforcement program in 10 CFR Part 820. One 
commenter (Ex. 37) is concerned that DOE will not consider effective 
OSHA enforcement policies and procedures, such as their letters of 
interpretation, rulings of law, approach to multi-employer sites and 
the General Duty Clause. The Office of Price-Anderson Enforcement has 
maintained copies of all enforcement letters, enforcement actions, 
program review reports and other data related to nuclear safety 
enforcement on its web site, which is available to participants in the 
Price-Anderson Amendments Act (PAAA) program. Over the past 10 years 
the program has been administered as required by the Price-Anderson 
Amendments Act. Legal precedents contained therein will be relevant. In 
a similar manner, on the effective date of this rule, DOE will begin to 
post all relevant enforcement letters, enforcement actions, program 
review reports, and other data related to worker safety and health. 
Interpretations to the OSHA standards issued by OSHA will be considered 
valid unless directed otherwise by DOE General Counsel. In addition to 
relying on DOE's proven nuclear safety enforcement principles and 
operating procedures, the Office of Price-Anderson Enforcement will 
incorporate relevant OSHA enforcement procedures into an Office of 
Price-Anderson Enforcement Worker Safety and Health Enforcement Manual.
    Another commenter (Ex. 59) proposed that a DOE-approved worker 
safety and health program constitute an accepted interpretation of the 
rule. DOE holds that it does not represent an interpretation of the 
rule. As established in the final rule, a binding interpretive ruling 
can only be issued through the formal process outlined in section 
851.7. In addition, an approved program demonstrates an acceptable 
approach toward implementing the requirements of the rule.
    The policy provides guidance on how enforcement conferences will be 
conducted, how enforcement actions will be conducted and when 
enforcement letters will be issued. One commenter (Ex. 31) suggested 
that specific criteria be established for issuing or not issuing 
enforcement letters and that enforcement letters should not be issued 
when a contractor has taken appropriate abatement action. DOE believes 
that such detailed criteria would unduly restrict the flexibility 
needed in the enforcement program. With respect to the Director's 
exercising discretion when a contractor self-reports a violation, 
another commenter (Ex. 47) recommended changing ``may'' to ``shall.'' 
DOE disagrees in that by definition, discretion cannot be exercised 
without restraint by DOE if DOE is constrained to act in only one way.
    The enforcement policy uses several enforcement terms and includes 
mitigation factors similar to those in 10 CFR part 820. The severity 
levels and adjustment factors in the policy incorporate concepts OSHA 
uses in its enforcement program including whether a violation is 
serious, other-than-serious, willful, repeat, or de minimis.
    Specifically, the policy as clarified in Appendix B section VI of 
the final rule provides guidance on the treatment of violations based 
on severity levels. Section VI(b)(1) establishes that a severity level 
I violation is a serious violation, which would involve the potential 
that death or serious physical harm could result from a condition in a 
workplace, or from one or more practices, means, methods, operations, 
or processes used in connection with a workplace. A severity level I 
violation is subject to a base civil penalty of up to 100% of the 
maximum base civil penalty or $70,000.
    Section VI(b)(2) establishes that a severity level II violation is 
an other-than-serious violation, which would involve a potential that 
the most serious injury or illness that might result from a hazardous 
condition cannot reasonably be predicted to cause death or serious 
physical harm to exposed employees, but does have a direct relationship 
to their safety and health. A severity level II violation is subject to 
a base civil penalty up to 50% of the maximum base civil penalty or 
$35,000.
    Under section VI(b)(3) a de minimis violation is defined as a 
violation that has no direct or immediate relationship to safety or 
health and thus, will not be the subject of formal enforcement action 
through the issuance of a Notice of Violation.
    Several commenters took issue with DOE's description of violation 
severity in the corresponding sections of the supplemental proposed 
rule. For instance, four commenters (Exs. 15, 29, 38, 57) favored using 
OSHA's definition for severity level I since probability in this rule 
was not precisely defined. DOE disagrees. The probability language in 
the definition of severity level II (i.e., ``a hazardous condition that 
cannot reasonably be predicted to cause death or serious physical 
harm'') clearly encompasses hazards that present only a remote 
possibility of death or serious physical harm, thus, such hazards would 
be considered severity level II. As a result, the supplemental proposal 
language is retained in the final rule.
    One commenter (Ex. 15) insisted that DOE apply the maximum civil 
penalty only to cases of willfulness, death, serious injury, patterns 
of systemic violations, flagrant violations or repeated poor 
performance and apply the OSHA penalty structure to violations 
classified as serious, other-than-serious, and de minimis. DOE 
disagrees, the penalty structure was established by Public Law. The 
Director may use discretion to reach final penalty amounts. Appendix B 
section IX(b)(3) addresses the adjustment factors that the Director 
will consider when arriving at a penalty amount.
    Two commenters (Exs. 45, 51) also suggested adding definitions to 
supplemental proposed section 851.3 for ``severity levels I and II.'' 
DOE disagrees, however, since the terms are adequately defined in this 
appendix. Two other commenters (Exs. 38, 57) requested that DOE more 
clearly delineate between severity level II and de minimis violations 
in the rule arguing that under the severity classifications in the 
supplemental proposed rule, a single improperly placed ladder could be 
consider a severity level II hazard subject to a $35,000 penalty. DOE 
disagrees that a change is needed. The commenters are correct that an 
improperly positioned ladder could be considered a severity level II 
hazard if the condition had a direct relationship to employee safety 
and health but could not reasonably be predicted to cause death or 
serious physical harm. If, on the other hand, the specific condition 
had no direct or immediate relationship to safety or health, the hazard 
would be considered de minimis. DOE also points out here that, under 
certain circumstances, an improperly positioned or secured ladder could 
easily present a significant fall hazard which could be considered a 
severity level I hazard. Since the probability that an injury or 
illness will occur has a bearing on the proposed penalty, the 
definitions of severity level I, II, or de minimis violations take 
likelihood or probability into account. In determining the severity 
level of a violation, the Office of Price-Anderson Enforcement will 
consider the circumstances affecting each condition--employee exposure, 
frequency of exposure, proximity to the hazard, level of worker 
experience, etc.
    With respect to fire protection, one commenter (Ex. 61) stated that 
due to legacy issues there will be numerous de minimis violations of 
National Fire Protection Association (NFPA)

[[Page 6926]]

standards. The commenters questioned whether DOE intends for 
contractors to document and correct these de minimis violations and 
also stated that most of the code deviations would address property 
protection rather than worker protection. In response, DOE notes that 
the list of NFPA standards in the final rule corresponds to those 
already listed in DOE Order 440.1A and are significantly reduced from 
that included in the supplemental proposal. Since these NFPA standards 
have been in place for many years under the DOE Order, DOE does not 
expect that there will be numerous violations. In addition, DOE 
believes that deviations from the NFPA standards that would qualify as 
de minimis violations would likely be addressed through the equivalency 
process built into the NFPA standards.
    In addition to the clear definitions for severity levels I and II 
and de minimis violations described in Appendix B section VI of the 
final rule, the supplemental proposed rule Appendix A sections VI(d) 
through (g) described certain other factors that would be taken into 
account in determining the severity of a violation. Several commenters 
took issue with the consideration of these other factors arguing that 
the factors had no relationship to the actual severity of the hazard. 
For instance, two commenters (Exs. 29, 36) suggested that severity 
levels be defined based on the extent of potential harm that could 
result from the violation (as discussed in supplemental proposed 
Appendix A sections VI(b) and (c)), not on the culpability of the 
contractor (as discussed in supplemental proposed Appendix A sections 
VI(d) and (e)). DOE agrees and has made appropriate changes in the 
final rule. Culpability will be considered in the assessment of 
adjustment factors when determining an appropriate level of penalty. 
Accordingly, this paragraph is now included as an adjustment factor 
under Appendix B section IX(b)(3)(e) of the final rule.
    Two other commenters (Exs. 29, 36) pointed out that, as defined in 
the supplemental proposal, a severity level II violation could be 
increased to severity level I if a contractor failed to report a 
violation. These commenters argued that this potential increase in 
severity level would make NTS reporting mandatory. DOE agrees. 
Accordingly, this provision of the supplemental proposal has been moved 
to Appendix B section IX(b)(3)(g) in the final rule and is no longer 
included as a factor in determining severity. As in the nuclear safety 
enforcement program, self-reporting is included as an adjustment factor 
in determining appropriate penalty amounts.
    Two commenter (Exs. 36, 47) took issues with Appendix A section 
VI(g) which provided special considerations for facility-related legacy 
hazards in determining severity levels. One commenter (Ex. 47) stated 
that this section of the supplemental proposed rule did not address 
personnel-related legacy issues such as asbestosis cases, hearing loss 
due to chronic noise exposures, etc. The other commenter (Ex. 36) 
wondered whether facility-related and legacy hazards would be 
considered in determining the severity of the hazard or would be 
considered as a mitigating factor when determining penalty amounts. DOE 
has considered both of these comments as well as other comments 
received related to legacy hazards and believes that flexibility for 
legacy hazards is best addressed through worker safety and health 
program requirements rather than through adjustments to the severity 
level of a violation. Accordingly, DOE has removed this paragraph from 
Appendix B section VI of the final rule. Under the final rule, 
facility-closure issues must be addressed under the contractor's safety 
and health program (final rule section 851.21(b)). DOE's intent is that 
this provision address facility-closure issues impacting worker safety 
and health.
    Appendix B section IX of the final rule clarifies that DOE may 
invoke the provisions for reducing contract fees in cases: (1) 
Involving especially egregious violations; (2) that indicate a general 
failure to perform under the contract with respect to worker safety and 
health; or (3) where the DOE line management believes a violation 
requires swift enforcement and corrective action. Where DOE uses 
environmental closure-type contracts, some of short duration and/or 
where fee payments are scheduled only after significant accomplishment 
of work, DOE would initially pursue the use of the fee reduction 
provision. Such violations would call into question a contractor's 
commitment and ability to achieve the fundamental obligation of 
providing safe and healthy workplaces for workers because of factors 
such as willfulness, repeated violations, death, serious injury, 
patterns of violations, flagrant DOE-identified violations, repeated 
poor performance in areas of concern, or serious breakdown in 
management controls. Because such violations indicate a general failure 
to perform under the contract with respect to worker safety and health 
where both remedies are available and DOE elects to use a reduction in 
fee, DOE would expect to reduce fees substantially under the 
Conditional Payment of Fee clause.
    Regarding the factor of ability of DOE contractors to pay civil 
penalties, the policy provides in Appendix B section IX(b)(2) that it 
is not DOE's intention that the economic impact of a civil penalty 
would put a DOE contractor out of business. Several commenters (Exs. 
29, 42, 47) contend that since DOE controls funding, some accommodation 
would be appropriate in circumstances where the violation existed 
because funding was not provided. They go on to state that contactors 
should not be liable if they have notified the contracting officer or 
COR that funds are needed to correct legacy hazards and infrastructure 
issues (Exs. 42, 47). The Director will consider all relevant factors 
in determining an appropriate enforcement method. However, the rule 
makes no provision for violations that have existed and have not been 
abated for lack of funding. It is the responsibility of contractors to 
be in compliance on the effective date of this rule.
    The policy also provides that when a contractor asserts that it 
cannot pay the proposed penalty, DOE would evaluate the relationship of 
affiliated entities to the contractor such as parent corporations. One 
commenter (Ex. 39) stated that such an approach is ``in direct 
contravention of state laws that establish C-corporations, S-
corporations and limited liability companies (LLCs), as well as other 
legal entities.'' DOE appreciates these concerns. Nevertheless, to 
ensure that responsible parties such as an affiliate are held 
responsible for the safety and health of workers, and to maintain 
consistency with the duties and responsibilities set forth in 10 CFR 
part 820, DOE has determined that it is necessary to continue to 
reference affiliated entities.
    Based on the adjustment factors relating to a noncompliance as 
described in Appendix B section IX(b)(3), DOE could mitigate a civil 
penalty from the statutory maximum of $70,000 per violation per day. 
Mitigation factors used to reduce a civil penalty include whether a DOE 
contractor promptly identified and reported a violation and took 
effective corrective actions. Factors used to increase penalties (but 
not over the statutory maximum of $70,000) would include whether a 
violation is repeated or involves willfulness, death, serious physical 
harm, patterns of systemic violations, flagrant DOE-identified 
violations, repeated poor performance in an area of concern, or serious 
breakdowns in management controls.

[[Page 6927]]

    One commenter (Ex. 13) suggested that the adjustment/mitigating 
factors should include percentages as in 10 CFR part 820. In response, 
DOE notes that in addition to establishing civil penalty percentages 
based on the severity of the violation, 10 CFR part 820 establishes 
adjustment factor percentages for two mitigating factors: (1) Reduction 
of up to 50% of civil penalty for self-identification and -reporting 
and (2) increases or decreases of up to 50% of civil penalty for 
failure to take corrective action or for implementation of prompt 
corrective action, respectively. DOE has included similar percentage 
adjustments based on severity of hazards and based on self-
identification and -reporting in both the supplemental proposal and in 
the final rule at Appendix B section IX(b)(4). DOE has not included a 
specific adjustment percentage based on the promptness of corrective 
action for two reasons: (1) DOE already ties corrective action into the 
adjustment factor for self-identification and -reporting in section 
IX(b)(4) which states, `` No consideration will be given to a reduction 
in penalty * * * if the immediate actions necessary to restore 
compliance with the worker safety and health requirements are not 
taken;'' and (2) DOE is limited under section 234 C of the AEA to 
imposing a maximum civil penalty of $70,000 per violation, per day. In 
other words, DOE is prohibited under the statute from applying a 50% 
increase to the base civil penalty of $70,000.
    Several commenters (Exs. 31, 37, 45, 51) suggested mitigating 
penalties based on a contractor's good faith, timely corrective action, 
and general inspection history, and providing a comprehensive list of 
positive mitigating factors in Appendix B. DOE discusses adjustment 
factors (including positive mitigating factors) in Appendix B, section 
IX(b)(3) of the final rule. This discussion touches upon many of the 
items listed by the commenters, however, DOE disagrees that a specific 
list of positive mitigating factors should be included in the rule. DOE 
believes that such a list would be limiting and could actually stifle 
contractor innovation in implementing their safety and health program. 
Mitigating factors, in different combinations, in different 
circumstances, may affect the penalty amount in different ways. Simply 
stated, DOE's intent in applying positive mitigating factors is to 
recognize proactive contractor safety and health measures when 
considering appropriate enforcement actions. The same commenter went on 
to support enforcement immunity for contractors who self-identify 
violations. Contractors are responsible for providing a workplace free 
from recognized hazards, not just identifying hazards. Hazard 
identification is fundamental to the worker safety and health program. 
Contractors are also responsible for evaluating hazards, implementing 
interim protective measures and abating noncompliances. If contractors 
were granted immunity for identifying hazards, then inappropriate or 
inadequate contractor actions that normally follow hazard 
identification would not be citable by the Office of Price-Anderson 
Enforcement. The procedure retained in the final rule is consistent 
with enforcement actions in Appendix A of 10 CFR part 820.
    Two commenters (Exs. 29, 36) argued that the rule should provide 
for personal errors and employee willful misconduct beyond the control 
of the contractor, including a responsibility for employees to comply 
(similar to section 5(b) of the Occupational Safety and Health Act) and 
should mirror the ``unpreventable employee misconduct'' defense 
recognized by OSHA. DOE agrees and added section 851.12(b) to the final 
rule to prohibit workers from taking actions inconsistent with the 
rule. DOE will develop enforcement guidance for the rule that will 
include provisions similar to OSHA's unpreventable employee misconduct 
defense outlined in OSHA's Field Inspection Reference Manual. Another 
commenter (Ex. 29) stated that an isolated case of a willful violation 
by an employee may be outside the control of the contractor should be 
eliminated from enforcement discretion, and should not be considered as 
grounds for classifying the violation as a ``willful'' violation. DOE 
agrees and intends for the policy regarding willful violations to 
address a willful violation on the part of contractor management.
    As noted previously, when both remedies are available, DOE may 
consider a reduction in contract fees if a violation is especially 
egregious or indicates a general failure to perform under the contract 
with respect to worker safety and health. One commenter (Ex. 29) 
inquired as to whether mitigating factors would be applied to contract 
penalties as they might be applied to civil penalties. In response, DOE 
notes that except where a violation is considered a continuing 
violation, and each day is considered a separate day for the purposes 
of computing the penalty, the maximum contract penalty for each 
violation will not exceed $70,000. DOE further notes that adjustment 
factors also apply to contract penalties. Section IX.2(e) indicates 
that DOE will evaluate the relationship between a contractor and 
affiliated entities in determining whether a contractor is able to pay 
a proposed penalty. DOE will generally consider the scope and magnitude 
of the contract and associated fees and/or profit, among other factors. 
It is not the intent of DOE to put a contractor out of business by 
assessing large penalties. In rare circumstances, when the nature of a 
contractor's violations and conduct are especially egregious, then 
contract termination may be more appropriate. In determining whether to 
refer a violation to the appropriate DOE official responsible for 
administering reductions in fee pursuant to the Conditional Payment of 
Fee clause, the Director will generally focus on the factors stated 
above, such as willfulness, repeated violations, death, serious injury, 
patterns of systemic violations, flagrant DOE-identified violations, 
repeated poor performance in an area of concern, or serious breakdown 
in management controls. In cases where DOE may elect between civil 
penalties and a contract penalty, these kinds of factors may also lead 
DOE to consider a reduction in fee if they raise doubts about a 
contractor's overall performance or ability to perform its contract 
with proper regard for worker safety and health.
    One commenter (Ex. 25) favored a penalty structure more in line 
with OSHA's penalty structure. In establishing the base civil penalties 
for the types of violations in this policy, DOE set the starting base 
amounts at levels higher than the average OSHA penalty for several 
reasons. DOE's activities are conducted by large, experienced 
management and operating contractors and their subcontractors. Through 
the contractual relationships that DOE has with these entities, DOE is 
in constant dialogue concerning the management and operation of DOE's 
sites and the performance of its governmental missions. DOE has the 
authority to require these contractors to develop their own worker 
safety and health programs for DOE approval. Moreover, DOE may 
unilaterally direct contractors to include various provisions in their 
programs. Thus, the Director is in a position to enforce against these 
programs and can provide incentives for proactive compliance. The 
policy strongly encourages self-identification of violations, self-
reporting, tracking systems, and corrective action programs. Moreover, 
DOE also has the authority and flexibility to coordinate and choose 
either a civil penalty or fee reduction remedy based on the enforcement 
policy

[[Page 6928]]

and the fee reduction contract clause. The proposed enforcement 
structure of this rule fits the DOE complex better than would a generic 
system as found in OSHA's enforcement programs.
    Finally, as a tool for implementing the enforcement policy, 
Appendix B section IX(b)(5) clarifies that DOE intends to provide a 
computerized database system to allow contractors to voluntarily report 
worker safety and health noncompliances. DOE will enhance its NTS, 
currently used for reporting of noncompliances of the DOE nuclear 
safety requirements, to permit its use for reporting noncompliances 
with this rule. DOE will develop appropriate reporting thresholds 
unique to worker safety and health to assure that the system will focus 
on issues with the greatest potential consequences for worker safety 
and health.
    Numerous commenters believed that contractor reporting into NTS is 
the most important issue to resolve, and that details about reporting 
thresholds, recording noncompliances, integration of reporting with 
existing DOE reporting requirements, among other issues, will have a 
bearing on contractor operations and their cost of doing business. All 
commenters (Exs. 5, 9, 15, 25, 28, 29, 30, 31, 35, 38, 39, 42, 45, 47, 
49, 51, 57) stated that doing so places contractors in a position of 
making ``an admission against interest,'' that DOE should provide 
immunity for self-reported violations, and that reporting would have a 
negative economic impact. DOE disagrees and views contractor reporting 
of noncompliances as responsible and in the best interest of the 
contractor, since up to 50 percent mitigation of the base penalty may 
be granted for self-reporting. While contractors should track all their 
noncompliances locally, only a subset would be reported into NTS based 
on reasonable reporting thresholds that will be established in a future 
enforcement guidance supplement (EGS). DOE anticipates that the NTS 
reporting thresholds will be established such that only severity level 
I and certain severity level II noncompliances will be reported. The 
EGS will also provide guidance on the reporting of noncompliances 
involving repeat, willful, programmatic, etc. issues.
    The NTS reporting scheme is similar to that already in use for 
nuclear safety enforcement. One commenter (Ex. 29 queried as to whether 
contractors would eventually move toward trending deficiencies and 
programmatic deficiencies. Enforcement of the requirements of this rule 
will be conducted from the Office of Price-Anderson Enforcement. DOE 
notes that a well-developed contractor worker safety and health program 
should involve trending and include an evaluation to determine whether 
identified noncompliances are of a programmatic nature. This type of 
evaluation would impact the contractor's response to identified 
noncompliances.
    Several commenters (Exs. 10, 13, 16, 29, 31, 37, 42, 49) took issue 
with reporting noncompliances into NTS and argued that this reporting 
would result in increased operating and management costs since these 
represent new requirements. These commenters argued that DOE should 
coordinate NTS with the Occurrence Reporting and Processing System 
(ORPS) to eliminate duplication of reporting. One of the commenters 
(Ex. 37) recommended eliminating contractor reporting altogether and 
suggested that DOE should require local DOE reporting of violations 
that result in actual endangerment to contractor employees. DOE 
disagrees with the commenter and believes that contractors are in the 
best position to identify noncompliances in their covered workplaces, 
not local DOE officials. In addition, local DOE representatives are not 
part of the enforcement program. Contractors operating under the 
requirements of DOE Order 440.1A are responsible for identifying, 
analyzing and abating noncompliances and reporting certain 
noncompliances to ORPS and Computerized Accident/Incident Reporting 
System (CAIRS). While future enforcement guidance supplements (EGSs) 
may identify what reportable information may be common to various 
reporting systems, it is generally left to the contractor to develop 
efficiencies in its own operating environment. DOE will continue to 
look at economies of scale between its different reporting systems. 
Final rule section 851.26 now requires reporting in accordance with DOE 
Manual 231.1-1A, Environment, Safety and Health Reporting Manual (DOE M 
231.1-1A), May 9, 2005. Section 851.20(a) establishes requirements for 
worker involvement in the safety and health program and 851.20(b) 
establishes worker rights to access certain information, including 
limited access to OSHA Form 300 and 301 information. Another commenter 
(Ex. 29) questioned what was meant in supplemental proposed Appendix A 
section IX(b)(5)(c) by requiring that DOE have ``access'' to the 
contractor's tracking system. DOE's intent with this statement is that 
if requested, contractors would provide DOE information/data on 
noncompliances tracked locally.
    With respect to contractors relying on direction given by DOE, and 
this reliance contributing to a violation, one commenter (Ex. 47) 
stated that supplemental proposed Appendix A section IX(b)(8) should 
indicate that DOE ``shall'' (instead of ``may'') refrain from issuing a 
notice of violation, or ``shall'' (instead of ``may'') mitigate, either 
partially or entirely, any proposed civil penalty when DOE has a 
contributing role according to provisions in the rule. DOE disagrees. 
The word may, instead of shall, gives the Director the discretion that 
is needed. Whether or not a notice of violation is issued depends on 
the nature of the direction given by DOE to the contractor, not simply 
that direction was given by DOE, and the extent to which a contractor 
relies on the direction from DOE.

                                               List of Commenters
----------------------------------------------------------------------------------------------------------------
           Exhibit No.                                         Company/organization
----------------------------------------------------------------------------------------------------------------
1...............................  Robert Burger, CEM.
2...............................  Richard Lewis.
3...............................  Beverly Brookshire.
4...............................  Robert P. Sierzputoowski.
5...............................  Waste Isolation Pilot Plant.
6...............................  Bryan Bowser.
7...............................  Argonne Fire Department.
8...............................  Jane Lataille.
9...............................  Honeywell Federal Manufacturing & Technologies.
10..............................  Glenn Bell.
11..............................  David M. Smith.

[[Page 6929]]

 
12..............................  Geoffrey Gorsuch.
13..............................  CH2M Hill Corporation.
14..............................  Peter Washburn.
15..............................  University of California--Los Alamos National Laboratory; Lawrence Berkeley
                                   National Laboratory; Lawrence Livermore National Laboratory.
16..............................  Westinghouse Savannah River Company.
17..............................  R&D Electrical Safety Meeting and Workshop Attendees.
18..............................  R&D Electrical Safety Meeting and Workshop-Group 2.
19..............................  Duke Cogema Stone & Webster, LLC.
20..............................  BWXT Pantex.
21..............................  S & V Wallace.
22..............................  National Fire Protection Association (NFPA).
23..............................  Gai Oglesbee.
24..............................  International Code Council.
25..............................  Princeton Plasma Physics laboratory.
26..............................  Sandia National Laboratory.
27..............................  Jefferson Laboratory.
28..............................  Fluor Fernald, Incorporated.
29..............................  Brookhaven Science Associates.
30..............................  Paper, Allied Industrial Chemical & Energy Workers Union (PACE).
31..............................  Bechtel Hanford.
32..............................  Charles R. Briggs.
33..............................  Universities Research Association, Inc.
34..............................  University of Chicago--Argonne National Laboratory.
35..............................  CH2M Hill Hanford Group.
36..............................  Pacific Northwest National Laboratory--Battelle Memorial Institute.
37..............................  Honeywell International, Inc.
38..............................  Stanford Linear Accelerator Center.
39..............................  Bechtel Jacobs Company, LLC.
40..............................  Building and Construction Trades Department, AFL-CIO.
41..............................  James Seward, MD.
42..............................  UT-Battelle, LLC.
43..............................  Voluntary Protection Program Participant's Association (VPPPA).
44..............................  Senators Jim Bunning & Edward M. Kennedy.
45..............................  Fluor Corporation.
46..............................  BWXT Technologies, Inc.
47..............................  Idaho National Laboratory.
48..............................  Bechtel National, Inc. Hanford Waste Treatment and Immobilization Plant.
49..............................  BWXT-Y12.
50..............................  Edward Jacobson.
51..............................  Fluor.
52..............................  Chris Blankner.
53..............................  Randall Unger.
54..............................  The International Chemical Workers Union Council of the United Food and
                                   Commercial Workers Union.
55..............................  Atomic Trades and Labor Council.
56..............................  American Conference of Governmental Industrial Hygienists (ACGIH).
57..............................  DOE Contractor Attorneys' Association, Inc.
58..............................  Bechtel Nevada Corporation.
59..............................  Donald Stedem, James Dotts, Scott Wood, Bo Kim, Graham Giles, Barbara Yoerg,
                                   Robert Griffith, Allen Herrbach, Roger Goldie, Roger Smith, Joseph Cohen.
60..............................  Ted Strickland, U.S. Representative.
61..............................  David Mowrer.
62..............................  Government Accountability Project.
----------------------------------------------------------------------------------------------------------------

V. Procedural Requirements

A. Review Under Executive Order 12866

    Today's 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 final rule to the Office of Information and Regulatory Affairs of 
the Office of Management and Budget, which has completed its review.

B. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform'' (61 FR 4779, February 7, 1996) imposes on 
Federal agencies the general duty to adhere to the following 
requirements: eliminate drafting errors and needless ambiguity, write 
regulations to minimize litigation, provide a clear legal standard for 
affected conduct rather than a general standard, and promote 
simplification and burden reduction. Section 3(b) requires Federal 
agencies to make every reasonable effort to ensure that a regulation, 
among other things: clearly specifies the preemptive effect, if any, 
adequately defines key terms, and addresses other important issues 
affecting the clarity and general draftsmanship under guidelines issued 
by the Attorney General. Section 3(c) of Executive Order 12988 requires

[[Page 6930]]

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, this final 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 this final rule does not have such 
effects and concluded that Executive Order 13175 does not apply to this 
rule.

E. Reviews 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 regulation establishes DOE's requirements for worker safety 
and health at DOE sites. The contractors who manage and operate DOE 
facilities are 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 concern'' in the Small 
Business Act, which the Small Business Administration (SBA) has 
developed through size standards in 13 CFR part 121. The DOE 
contractors subject to this rule exceed the SBA's size standards for 
small businesses. In addition, DOE expects that any potential economic 
impact of this 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 rule. For these reasons, DOE certifies that 
today's rule does 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 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 this regulation should require little if any new analysis 
or new documents to the extent that existing analysis and documents are 
sufficient for purposes of the 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 rule implements the statutory mandate to 
promulgate worker safety and health regulations for DOE facilities that 
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 is based on existing programs and that this 
rule generally does not require the development of a new program. DOE 
has therefore concluded that promulgation of these regulations falls 
into the class of actions that does 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 is 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, in the aggregate, or by the private sector, of $100 
million in any one year. The Act also requires a Federal agency to 
develop an effective process to permit timely input by elected 
officials of state, tribal, or local governments on a proposed 
``significant intergovernmental mandate,'' and requires an agency plan 
for giving notice and opportunity to provide timely input to 
potentially affected small governments before establishing any 
requirements that might significantly or uniquely affect small 
governments. DOE has determined that the rule published today does not 
contain any Federal

[[Page 6931]]

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 rule published today does 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 rule that may affect family 
well-being. This 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 final 
rule under the OMB and DOE guidelines, and has concluded that it is 
consistent with applicable policies in those guidelines.

L. Congressional Notification

    As required by 5 U.S.C. 801, DOE will submit to Congress a report 
regarding the issuance of today's final rule prior to the effective 
date set forth at the outset of this notice. The report will state that 
it has been determined that the rule is not a ``major rule'' as defined 
by 5 U.S.C. 801(2).

VI. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this final 
rule.

List of Subjects

10 CFR Part 850

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

10 CFR Part 851

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

    Issued in Washington, DC, on January 20, 2006.
John Spitaleri Shaw,
Assistant Secretary for Environment, Safety and Health.

0
For the reasons set forth in the preamble, the Department of Energy is 
amending chapter III of title 10 of the Code of Federal Regulations as 
follows:

PART 850--CHRONIC BERYLLIUM DISEASE PREVENTION PROGRAM

0
1. The authority citation for part 850 is revised to read as follows:

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


0
2. Section 850.1 is revised to read as follows:


Sec.  850.1  Scope.

    This part provides for establishment of a chronic beryllium disease 
prevention program (CBDPP) that supplements and is deemed an integral 
part of the worker safety and health program under part 851 of this 
chapter.

0
3. Section 850.4 is revised to read as follows:


Sec.  850.4  Enforcement.

    DOE may take appropriate steps pursuant to part 851 of this chapter 
to enforce compliance by contractors with this part and any DOE-
approved CBDPP.

0
4. A new part 851 is added to Chapter III to read as follows:

PART 851--WORKER SAFETY AND HEALTH PROGRAM

Subpart A--General Provisions
Sec.
851.1 Scope and purpose.
851.2 Exclusions.
851.3 Definitions.
851.4 Compliance order.
851.5 Enforcement.
851.6 Petitions for generally applicable rulemaking.
851.7 Request for a binding interpretive ruling.
851.8 Informal requests for information.
Subpart B--Program Requirements
851.10 General requirements.
851.11 Development and approval of worker safety and health program.
851.12 Implementation.
851.13 Compliance.
Subpart C--Specific Program Requirements
851.20 Management responsibilities and worker rights and 
responsibilities.
851.21 Hazard identification and assessment.
851.22 Hazard prevention and abatement.
851.23 Safety and health standards.
851.24 Functional areas.
851.25 Training and information.
851.26 Recordkeeping and reporting.
851.27 Reference sources.
Subpart D--Variances
851.30 Consideration of variances.
851.31 Variance process.
851.32 Action on variance requests.
851.33 Terms and conditions.
851.34 Requests for conferences.
Subpart E--Enforcement Process
851.40 Investigations and inspections.
851.41 Settlement.
851.42 Preliminary notice of violation.
851.43 Final notice of violation.
851.44 Administrative appeal.
851.45 Direction to NNSA contractors.

Appendix A to Part 851--Worker Safety and Health Functional Areas

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

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

Subpart A--General Provisions


Sec.  851.1  Scope and purpose.

    (a) The worker safety and health requirements in this part govern 
the conduct of contractor activities at DOE sites.
    (b) This part establishes the:
    (1) Requirements for a worker safety and health program that 
reduces or prevents occupational injuries, illnesses, and accidental 
losses by providing DOE contractors and their workers with safe and 
healthful workplaces at DOE sites; and
    (2) Procedures for investigating whether a violation of a 
requirement of this part has occurred, for determining the nature and 
extent of any such violation, and for imposing an appropriate remedy.


Sec.  851.2  Exclusions.

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

[[Page 6932]]

    (1) Regulated by the Occupational Safety and Health Administration; 
or
    (2) Operated under the authority of the Director, Naval Nuclear 
Propulsion, pursuant to Executive Order 12344, as set forth in Public 
Law 98-525, 42 U.S.C. 7158 note.
    (b) This part does not apply to radiological hazards or nuclear 
explosives operations to the extent regulated by 10 CFR Parts 20, 820, 
830 or 835.
    (c) This part does not apply to transportation to or from a DOE 
site.


Sec.  851.3  Definitions.

    (a) As used in this part:
    AEA means the Atomic Energy Act of 1954, 42 U.S.C. 2011 et seq.
    Affected worker means a worker who would be affected by the 
granting or denial of a variance, or any authorized representative of 
the worker, such as a collective bargaining agent.
    Closure facility means a facility that is non-operational and is, 
or is expected to be permanently closed and/or demolished, or title to 
which is expected to be transferred to another entity for reuse.
    Closure facility hazard means a facility-related condition within a 
closure facility involving deviations from the technical requirements 
of Sec.  851.23 of this part that would require costly and extensive 
structural/engineering modifications to be in compliance.
    Cognizant Secretarial Officer means, with respect to a particular 
situation, the Assistant Secretary, Deputy Administrator, Program 
Office Director, or equivalent DOE official who has primary line 
management responsibility for a contractor, or any other official to 
whom the CSO delegates in writing a particular function under this 
part.
    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.
    Construction means combination of erection, installation, assembly, 
demolition, or fabrication activities involved to create a new facility 
or to alter, add to, rehabilitate, dismantle, or remove an existing 
facility. It also includes the alteration and repair (including 
dredging, excavating, and painting) of buildings, structures, or other 
real property, as well as any construction, demolition, and excavation 
activities conducted as part of environmental restoration or 
remediation efforts.
    Construction contractor means the lowest tiered contractor with 
primary responsibility for the execution of all construction work 
described within a construction procurement or authorization document 
(e.g., construction contract, work order).
    Construction manager means the individual or firm responsible to 
DOE for the supervision and administration of a construction project to 
ensure the construction contractor's compliance with construction 
project requirements.
    Construction project means the full scope of activities required on 
a construction worksite to fulfill the requirements of the construction 
procurement or authorization document.
    Construction worksite is the area within the limits necessary to 
perform the work described in the construction procurement or 
authorization document. It includes the facility being constructed or 
renovated along with all necessary staging and storage areas as well as 
adjacent areas subject to project hazards.
    Contractor means any entity, including affiliated entities, such as 
a parent corporation, under contract with DOE, or a subcontractor at 
any tier, that has responsibilities for performing work at a DOE site 
in furtherance of a DOE mission.
    Covered workplace means a place at a DOE site where a contractor is 
responsible for performing work in furtherance of a DOE mission.
    Director means a DOE Official to whom the Secretary assigns 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 Enforcement Officer means a DOE official to whom the Director 
assigns the authority to investigate the nature and extent of 
compliance with the requirements of this part.
    DOE site means a DOE-owned or -leased area or location or other 
area or location controlled by DOE where activities and operations are 
performed at one or more facilities or places by a contractor in 
furtherance of a DOE mission.
    Final notice of violation means a document that determines a 
contactor 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.
    Head of DOE Field Element means an individual who is the manager or 
head of the DOE operations office or field office.
    Interpretative ruling 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.
    National defense variance means relief from a safety and health 
standard, or portion thereof, to avoid serious impairment of a national 
defense mission.
    NNSA means the National Nuclear Security Administration.
    Nuclear explosive means an assembly containing fissionable and/or 
fusionable materials and main charge high-explosive parts or 
propellants capable of producing a nuclear detonation (e.g., a nuclear 
weapon or test device).
    Nuclear explosive operation means any activity involving a nuclear 
explosive, including activities in which main charge high-explosive 
parts and pit are collocated.
    Occupational medicine provider means the designated site 
occupational medicine director (SOMD) or the individual providing 
medical services.
    Permanent variance means relief from a safety and health standard, 
or portion thereof, to contractors who can prove that their methods, 
conditions, practices, operations, or processes provide workplaces that 
are as safe and healthful as those that follow the workplace safety and 
health standard required by this part.
    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;

[[Page 6933]]

    (3) Any remedy, including the amount of any proposed civil penalty; 
and
    (4) A statement explaining the reasoning behind any proposed 
remedy.
    Pressure systems means all pressure vessels, and pressure sources 
including cryogenics, pneumatic, hydraulic, and vacuum. Vacuum systems 
should be considered pressure systems due to their potential for 
catastrophic failure due to backfill pressurization. Associated 
hardware (e.g., gauges and regulators), fittings, piping, pumps, and 
pressure relief devices are also integral parts of the pressure system.
    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 rescission 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.
    Safety and health standard means a standard that 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, reasonably necessary or appropriate 
to provide safe and healthful workplaces.
    Secretary means the Secretary of Energy.
    Temporary variance means a short-term relief for a new safety and 
health standard when the contractor cannot comply with the requirements 
by the prescribed date because the necessary construction or alteration 
of the facility cannot be completed in time or when technical 
personnel, materials, or equipment are temporarily unavailable.
    Unauthorized discharge means the discharge of a firearm under 
circumstances other than: (1) during firearms training with the firearm 
properly pointed down range (or toward a target), or (2) the 
intentional firing at hostile parties when deadly force is authorized.
    Under Secretary means, with respect to a particular situation, the 
DOE official who serves as the Under Secretary for Energy and 
Environment, or the Under Secretary for Science, or the Under Secretary 
for Nuclear Security/Administrator for National Nuclear Security 
Administration who has primary line management responsibility for a 
contractor.
    Variance means an exception to compliance with some part of a 
safety and health standard granted by the Under Secretary to a 
contractor.
    Worker means an employee of a DOE contractor person who performs 
work in furtherance of a DOE mission at a covered workplace.
    Workplace hazard means a physical, chemical, biological, or safety 
hazard with any potential to cause illness, injury, or death to a 
person.
    (b) Terms undefined in this part that are defined in the Atomic 
Energy Act of 1954 must have the same meaning as under that Act.


Sec.  851.4  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.
    (d) A copy of the Compliance Order must be prominently posted, once 
issued, at or near the location where the violation, potential 
violation, or inconsistency occurred until it is corrected.


Sec.  851.5  Enforcement.

    (a) A contractor that is indemnified under section 170d. of the AEA 
(or any subcontractor or supplier thereto) and that violates (or whose 
employee violates) any requirement of this part shall be 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 may be 
subject to a reduction in fees or other payments under a contract with 
DOE, pursuant to the contract's Conditional Payment of Fee clause, or 
other contract clause providing for such reductions.
    (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 shall not penalize a contractor under both sections 234A 
and 234C of the AEA for the same violation.
    (f) DOE enforcement actions through civil penalties under paragraph 
(a) of this section, start on February 9, 2007.


Sec.  851.6  Petitions for generally applicable rulemaking.

    (a) Right to file. Any person may file a petition for generally 
applicable rulemaking to amend or interpret provisions of this part.
    (b) How to file. Any person who wants to file a petition for 
generally applicable rulemaking pursuant to this section must file by 
mail or messenger in an envelope addressed to the Office of General 
Counsel, GC-1, U.S. Department of Energy, 1000 Independence Avenue, 
SW., Washington, DC 20585.
    (c) Content of rulemaking petitions. A petition under this section 
must:
    (1) Be labeled ``Petition for Rulemaking Under 10 CFR 851;''
    (2) Describe with particularity the provision of this part to be 
amended and the text of regulatory language to be added; and
    (3) Explain why, if relevant, DOE should not choose to make policy 
by precedent through adjudication of petitions for assessment of civil 
penalty.
    (d) Determinations upon rulemaking petitions. After considering the 
petition and other information DOE deems relevant, DOE may grant the 
petition and issue an appropriate rulemaking notice, or deny the 
petition because the rule being sought:
    (1) Would be inconsistent with statutory law;
    (2) Would establish a generally applicable policy in a subject 
matter area that should be left to case-by-case determinations; or
    (3) For other good cause.


Sec.  851.7  Requests for a binding interpretative ruling.

    (a) Right to file. Any person subject to this part have the right 
to file a request for an interpretive ruling that is binding on DOE 
with regard to a question as to how the regulations in this part would 
apply to particular facts and circumstances.
    (b) How to file. Any person who wants to file a request under this 
section must file by mail or messenger in an envelop addressed to the 
Office of General Counsel, GC-1, U.S. Department of

[[Page 6934]]

Energy, 1000 Independence Avenue, SW., Washington, DC 20585.
    (c) Content of request for interpretive ruling. A request under 
this section must:
    (1) Be in writing;
    (2) Be labeled ``Request for Interpretive Ruling Under 10 CFR 
851;''
    (3) Identify the name, address, telephone number, e-mail address, 
and any designated representative of the person filing the request;
    (4) State the facts and circumstances relevant to the request;
    (5) Be accompanied by copies of relevant supporting documents if 
any;
    (6) Specifically identify the pertinent regulations and the related 
question on which an interpretive ruling is sought; and
    (7) Include explanatory discussion in support of the interpretive 
ruling being sought.
    (d) Public comment. DOE may give public notice of any request for 
an interpretive ruling and provide an opportunity for public comment.
    (e) Opportunity to respond to public comment. DOE may provide an 
opportunity to any person who requests an interpretive ruling to 
respond to public comments relating to the request.
    (f) Other sources of information. DOE may:
    (1) Conduct an investigation of any statement in a request;
    (2) Consider any other source of information in evaluating a 
request for an interpretive ruling; and
    (3) Rely on previously issued interpretive rulings with addressing 
the same or a related issue.
    (g) Informal conference. DOE may convene an informal conference 
with the person requesting the interpretive ruling.
    (h) Effect of interpretive ruling. Except as provided in paragraph 
(i) of this section, an interpretive ruling under this section is 
binding on DOE only with respect to the person who requested the 
ruling.
    (i) Reliance on interpretive ruling. If DOE issues an interpretive 
ruling under this section, then DOE may not subject the person who 
requested the ruling to an enforcement action for civil penalties for 
actions reasonably taken in reliance on the ruling, but a person may 
not act in reliance on an interpretive ruling that is administratively 
rescinded or modified after opportunity to comment, judicially 
invalidated, or overruled by statute or regulation.
    (j) Denial of requests for an interpretive ruling. DOE may deny a 
request for an interpretive ruling if DOE determines that:
    (1) There is insufficient information upon which to base an 
interpretive ruling;
    (2) The interpretive question posed should be treated in a general 
notice of proposed rulemaking;
    (3) There is an adequate procedure elsewhere in this part for 
addressing the interpretive question such as a petition for variance; 
or
    (4) For other good cause.
    (k) Public availability of interpretive rulings. For information of 
interested members of the public, DOE may file a copy of interpretive 
rulings on a DOE internet web site.


Sec.  851.8  Informal requests for information.

    (a) Any person may informally request information under this 
section as to how to comply with the requirements of this part, instead 
of applying for a binding interpretive ruling under Sec.  851.7. DOE 
responses to informal requests for information under this section are 
not binding on DOE and do not preclude enforcement actions under this 
part.
    (b) Inquiries regarding the technical requirements of the standards 
required by this part must be directed to the Office of Environment, 
Safety and Health, Office of Health (EH-5), U.S. Department of Energy, 
1000 Independence Avenue, SW., Washington, DC 20585.
    (c) Information regarding the general statement of enforcement 
policy in the appendix to this part must be directed to the Office of 
Environment, Safety and Health, Office of Price-Anderson Enforcement 
(EH-6), U.S. Department of Energy, 1000 Independence Avenue, SW., 
Washington, DC 20585.

Subpart B--Program Requirements


Sec.  851.10  General requirements.

    (a) With respect to a covered workplace for which a contractor is 
responsible, the contractor must:
    (1) Provide a place of employment that is free from recognized 
hazards that are causing or have the potential to cause death or 
serious physical harm to workers; and
    (2) Ensure that work is performed in accordance with:
    (i) All applicable requirements of this part; and
    (ii) With the worker safety and health program for that workplace.
    (b) The written worker safety and health program must describe how 
the contractor complies with the:
    (1) Requirements set forth in Subpart C of this part that are 
applicable to the hazards associated with the contractor's scope of 
work; and
    (2) Any compliance order issued by the Secretary pursuant to Sec.  
851.4.


Sec.  851.11  Development and approval of the worker safety and health 
program.

    (a) Preparation and submission of worker safety and health program. 
By February 26, 2007, contractors must submit to the appropriate Head 
of DOE Field Element for approval a written worker safety and health 
program that provides the methods for implementing the requirements of 
Subpart C of this part.
    (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 covered workplaces for 
which the contractor is responsible.
    (2) If more than one contractor is responsible for covered 
workplaces, 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 work at 
the covered workplaces to ensure that there are clear roles, 
responsibilities and procedures to ensure the safety and health of 
workers at multi-contractor workplaces.
    (3) The worker safety and health program must describe how the 
contractor will:
    (i) Comply with the requirements set forth in Subpart C of this 
part that are applicable to the covered workplace, including the 
methods for implementing those requirements; and
    (ii) Integrate the requirements set forth in Subpart C of this part 
that are applicable to a covered workplace with other related site-
specific worker protection activities and with the integrated safety 
management system.
    (b) DOE evaluation and approval. The Head of DOE Field Element must 
complete a review and provide written approval of the contractor's 
worker safety and health program, within 90 days of receiving the 
document. The worker safety and health program and any updates are 
deemed approved 90 days after submission if they are not specifically 
approved or rejected by DOE earlier.
    (1) Beginning May 25, 2007, no work may be performed at a covered 
workplace unless an approved worker safety and health program is in 
place for the workplace.
    (2) Contractors must send a copy of the approved program to the 
Assistant Secretary for Environment, Safety and Health.

[[Page 6935]]

    (3) Contractors must furnish a copy of the approved worker safety 
and health program, upon written request, to the affected workers or 
their designated representatives.
    (c) Updates. (1) Contractors must submit an update of the worker 
safety and health program to the appropriate Head of DOE Field Element, 
for review and approval whenever a significant change or addition to 
the program is made, or a change in contractors occurs.
    (2) Contractors must submit annually to DOE either an updated 
worker safety and health program for approval or a letter stating that 
no changes are necessary in the currently approved worker safety and 
health program.
    (3) Contactors must incorporate in the worker safety and health 
program any changes, conditions, or workplace safety and health 
standards directed by DOE consistent with the requirements of this part 
and DEAR 970.5204-2, Laws, Regulations and DOE Directives (December, 
2000) and associated contract clauses.
    (d) Labor Organizations. If a contractor employs or supervises 
workers who are represented for collective bargaining by a labor 
organization, the contractor must:
    (1) Give the labor organization timely notice of the development 
and implementation of the worker safety and health program and any 
updates thereto; and
    (2) Upon timely request, bargain concerning implementation of this 
part, consistent with the Federal labor laws.


Sec.  851.12  Implementation.

    (a) Contractors must implement the requirements of this part.
    (b) Nothing in this part precludes a contractor from taking any 
additional protective action that is determined to be necessary to 
protect the safety and health of workers.


Sec.  851.13  Compliance.

    (a) Contractors must achieve compliance with all the requirements 
of Subpart C of this part, and their approved worker safety and health 
program no later than May 25, 2007. Contractors may be required to 
comply contractually with the requirements of this rule before February 
9, 2007.
    (b) In the event a contractor has established a written safety and 
health program, an Integrated Safety Management System (ISMS) 
description pursuant to the DEAR Clause, or an approved Work Smart 
Standards (WSS) process before the date of issuance of the final rule, 
the Contractor may use that program, description, or process as the 
worker safety and health program required by this part if the 
appropriate Head of the DOE Field Element approves such use on the 
basis of written documentation provided by the contractor that 
identifies the specific portions of the program, description, or 
process, including any additional requirements or implementation 
methods to be added to the existing program, description, or process, 
that satisfy the requirements of this part and that provide a workplace 
as safe and healthful as would be provided by the requirements of this 
part.
    (c) Nothing in this part shall be construed to limit or otherwise 
affect contractual obligations of a contractor to comply with 
contractual requirements that are not inconsistent with the 
requirements of this part.

Subpart C--Specific Program Requirements


Sec.  851.20  Management responsibilities and worker rights and 
responsibilities.

    (a) Management responsibilities. Contractors are responsible for 
the safety and health of their workforce and must ensure that 
contractor management at a covered workplace:
    (1) Establish written policy, goals, and objectives for the worker 
safety and health program;
    (2) Use qualified worker safety and health staff (e.g., a certified 
industrial hygienist, or safety professional) to direct and manage the 
program;
    (3) Assign worker safety and health program responsibilities, 
evaluate personnel performance, and hold personnel accountable for 
worker safety and health performance;
    (4) Provide mechanisms to involve workers and their elected 
representatives in the development of the worker safety and health 
program goals, objectives, and performance measures and in the 
identification and control of hazards in the workplace;
    (5) Provide workers with access to information relevant to the 
worker safety and health program;
    (6) Establish procedures for workers to report without reprisal 
job-related fatalities, injuries, illnesses, incidents, and hazards and 
make recommendations about appropriate ways to control those hazards;
    (7) Provide for prompt response to such reports and 
recommendations;
    (8) Provide for regular communication with workers about workplace 
safety and health matters;
    (9) Establish procedures to permit workers to stop work or decline 
to perform an assigned task because of a reasonable belief that the 
task poses an imminent risk of death, serious physical harm, or other 
serious hazard to workers, in circumstances where the workers believe 
there is insufficient time to utilize normal hazard reporting and 
abatement procedures; and
    (10) Inform workers of their rights and responsibility by 
appropriate means, including posting the DOE-designated Worker 
Protection Poster in the workplace where it is accessible to all 
workers.
    (b) Worker rights and responsibilities. Workers must comply with 
the requirements of this part, including the worker safety and health 
program, which are applicable to their own actions and conduct. Workers 
at a covered workplace have the right, without reprisal, to:
    (1) Participate in activities described in this section on official 
time;
    (2) 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;
    (v) Limited information on any recordkeeping log (OSHA Form 300). 
Access is subject to Freedom of Information Act requirements and 
restrictions; and
    (vi) The DOE Form 5484.3 (the DOE equivalent to OSHA Form 301) that 
contains the employee's name as the injured or ill worker;
    (3) Be notified when monitoring results indicate the worker was 
overexposed to hazardous materials;
    (4) Observe monitoring or measuring of hazardous agents and have 
the results of their own exposure monitoring;
    (5) Have a representative authorized by employees accompany the 
Director or his authorized personnel during the physical inspection of 
the workplace for the purpose of aiding the inspection. When no 
authorized employee representative is available, the Director or his 
authorized representative must consult, as appropriate, with employees 
on matters of worker safety and health;
    (6) Request and receive results of inspections and accident 
investigations;
    (7) Express concerns related to worker safety and health;
    (8) Decline to perform an assigned task because of a reasonable 
belief that, under the circumstances, the task poses an imminent risk 
of death or serious physical harm to the worker coupled with a 
reasonable belief that there is insufficient time to seek effective 
redress through normal hazard reporting and abatement procedures; and

[[Page 6936]]

    (9) 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 procedures established in the 
approved worker safety and health program.


Sec.  851.21  Hazard identification and assessment.

    (a) Contractors must establish procedures to identify existing and 
potential workplace hazards and assess the risk of associated workers 
injury and illness. Procedures must include methods to:
    (1) Assess worker exposure to chemical, physical, biological, or 
safety workplace hazards through appropriate workplace monitoring;
    (2) Document assessment for chemical, physical, biological, and 
safety workplace hazards using recognized exposure assessment and 
testing methodologies and using of accredited and certified 
laboratories;
    (3) Record observations, testing and monitoring results;
    (4) Analyze designs of new facilities and modifications to existing 
facilities and equipment for potential workplace hazards;
    (5) Evaluate operations, procedures, and facilities to identify 
workplace hazards;
    (6) Perform routine job activity-level hazard analyses;
    (7) Review site safety and health experience information; and
    (8) Consider interaction between workplace hazards and other 
hazards such as radiological hazards.
    (b) Contractors must submit to the Head of DOE Field Element a list 
of closure facility hazards and the established controls within 90 days 
after identifying such hazards. The Head of DOE Field Element, with 
concurrence by the Cognizant Secretarial Officer, has 90 days to accept 
the closure facility hazard controls or direct additional actions to 
either:
    (1) Achieve technical compliance; or
    (2) Provide additional controls to protect the workers.
    (c) Contractors must perform the activities identified in paragraph 
(a) of this section, initially to obtain baseline information and as 
often thereafter as necessary to ensure compliance with the 
requirements in this Subpart.


Sec.  851.22  Hazard prevention and abatement.

    (a) Contractors must establish and implement a hazard prevention 
and abatement process to ensure that all identified and potential 
hazards are prevented or abated in a timely manner.
    (1) For hazards identified either in the facility design or during 
the development of procedures, controls must be incorporated in the 
appropriate facility design or procedure.
    (2) For existing hazards identified in the workplace, contractors 
must:
    (i) Prioritize and implement abatement actions according to the 
risk to workers;
    (ii) Implement interim protective measures pending final abatement; 
and
    (iii) Protect workers from dangerous safety and health conditions;
    (b) Contractors must select hazard controls based on the following 
hierarchy:
    (1) Elimination or substitution of the hazards where feasible and 
appropriate;
    (2) Engineering controls where feasible and appropriate;
    (3) Work practices and administrative controls that limit worker 
exposures; and
    (4) Personal protective equipment.
    (c) Contractors must address hazards when selecting or purchasing 
equipment, products, and services.


Sec.  851.23  Safety and health standards.

    (a) Contractors must comply with the following safety and health 
standards that are applicable to the hazards at their covered 
workplace:
    (1) Title 10 Code of Federal Regulations (CFR) 850, ``Chronic 
Beryllium Disease Prevention Program.''
    (2) Title 29 CFR, Parts 1904.4 through 1904.11, 1904.29 through 
1904.33; 1904.44, and 1904.46, ``Recording and Reporting Occupational 
Injuries and Illnesses.''
    (3) Title 29 CFR, Part 1910, ``Occupational Safety and Health 
Standards,'' excluding 29 CFR 1910.1096, ``Ionizing Radiation.''
    (4) Title 29 CFR, Part 1915, ``Shipyard Employment.''
    (5) Title 29 CFR, Part 1917, ``Marine Terminals.''
    (6) Title 29 CFR, Part 1918, ``Safety and Health Regulations for 
Longshoring.''
    (7) Title 29 CFR, Part 1926, ``Safety and Health Regulations for 
Construction.''
    (8) Title 29 CFR, Part 1928, ``Occupational Safety and Health 
Standards for Agriculture.''
    (9) American Conference of Governmental Industrial Hygienists 
(ACGIH), ``Threshold Limit Values for Chemical Substances and Physical 
Agents and Biological Exposure Indices,'' (2005) (incorporated by 
reference, see Sec.  851.27) when the ACGIH Threshold Limit Values 
(TLVs) are lower (more protective) than permissible exposure limits in 
29 CFR 1910. When the ACGIH TLVs are used as exposure limits, 
contractors must nonetheless comply with the other provisions of any 
applicable expanded health standard found in 29 CFR 1910.
    (10) American National Standards Institute (ANSI) Z88.2, ``American 
National Standard for Respiratory Protection,'' (1992) (incorporated by 
reference, see Sec.  851.27).
    (11) ANSI Z136.1, ``Safe Use of Lasers,'' (2000) (incorporated by 
reference, see Sec.  851.27).
    (12) ANSI Z49.1, ``Safety in Welding, Cutting and Allied 
Processes,'' sections 4.3 and E4.3 (1999) (incorporated by reference, 
see Sec.  851.27).
    (13) National Fire Protection Association (NFPA) 70, ``National 
Electrical Code,'' (2005) (incorporated by reference, see Sec.  
851.27).
    (14) NFPA 70E, ``Standard for Electrical Safety in the Workplace,'' 
(2004) (incorporated by reference, see Sec.  851.27).
    (b) Nothing in this part must be construed as relieving a 
contractor from complying with any additional specific safety and 
health requirement that it determines to be necessary to protect the 
safety and health of workers.


Sec.  851.24  Functional areas.

    (a) Contractors must have a structured approach to their worker 
safety and health program which at a minimum, include provisions for 
the following applicable functional areas in their worker safety and 
health program: construction safety; fire protection; firearms safety; 
explosives safety; pressure safety; electrical safety; industrial 
hygiene; occupational medicine; biological safety; and motor vehicle 
safety.
    (b) In implementing the structured approach required by paragraph 
(a) of this section, contractors must comply with the applicable 
standards and provisions in Appendix A of this part, entitled ``Worker 
Safety and Health Functional Areas.''


Sec.  851.25  Training and information.

    (a) Contractors must develop and implement a worker safety and 
health training and information program to ensure that all workers 
exposed or potentially exposed to hazards are provided with the 
training and information on that hazard in order to perform their 
duties in a safe and healthful manner.
    (b) The contractor must provide:
    (1) Training and information for new workers, before or at the time 
of initial assignment to a job involving exposure to a hazard;

[[Page 6937]]

    (2) Periodic training as often as necessary to ensure that workers 
are adequately trained and informed; and
    (3) Additional training when safety and health information or a 
change in workplace conditions indicates that a new or increased hazard 
exists.
    (c) Contractors must provide training and information to workers 
who have worker safety and health program responsibilities that is 
necessary for them to carry out those responsibilities.


Sec.  851.26  Recordkeeping and reporting.

    (a) Recordkeeping. Contractors must:
    (1) Establish and maintain complete and accurate records of all 
hazard inventory information, hazard assessments, exposure 
measurements, and exposure controls.
    (2) Ensure that the work-related injuries and illnesses of its 
workers and subcontractor workers are recorded and reported accurately 
and consistent with DOE Manual 231.1-1A, Environment, Safety and Health 
Reporting Manual, September 9, 2004 (incorporated by reference, see 
Sec.  851.27).
    (3) Comply with the applicable occupational injury and illness 
recordkeeping and reporting workplace safety and health standards in 
Sec.  851.23 at their site, unless otherwise directed in DOE Manual 
231.1-1A.
    (4) Not conceal nor destroy any information concerning non-
compliance or potential noncompliance with the requirements of this 
part.
    (b) Reporting and investigation. Contractors must:
    (1) Report and investigate accidents, injuries and illness; and
    (2) Analyze related data for trends and lessons learned (reference 
DOE Order 225.1A, Accident Investigations, November 26, 1997).


Sec.  851.27  Reference sources.

    (a) Materials incorporated by reference. (1) General. The following 
standards which are not otherwise set forth in part 851 are 
incorporated by reference and made a part of part 851. The standards 
listed in this section have been approved for incorporation by 
reference by the Director of the Federal Register in accordance with 5 
U.S.C. 552(a) and 1 CFR part 51.
    (2) Availability of standards. The standards incorporated by 
reference are available for inspection at:
    (i) National Archives and Records Administration (NARA). For more 
information on the availability of this material at NARA, call 202-741-
6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html
    (ii) U.S. Department of Energy, Office of Environment, Safety and 
Health, Forrestal Building, 1000 Independence Ave., SW., Washington, DC 
20585.
    (iii) American National Standards Institute Headquarters, 25 West 
43rd Street, New York, NY 10036. Telephone number: 212-642-4980, or go 
to: http://www.ansi.org.
    (iv) National Fire Protection Association, 1 Batterymarch Park, 
Quincy, MA 02169. Telephone: 617 770-3000, or go to: http://www.nfpa.org.
    (v) American Conference of Governmental Industrial Hygienist 
(ACGIH), 1330 Kemper Meadow Drive, Cincinnati, OH 45240. Telephone 
number 513-742-2020, or go to: http://www.acgih.org.
    (vi) American Society of Mechanical Engineers (ASME), P.O. Box 2300 
Fairfield, NJ 07007. Telephone: 800-843-2763, or got to: http://www.asme.org.
    (b) List of standards incorporated by reference. (1) American 
National Standards Institute (ANSI) Z88.2, ``American National Standard 
for Respiratory Protection,'' (1992).
    (2) ANSI Z136.1, ``Safe Use of Lasers,'' (2000).
    (3) ANSI Z49.1, ``Safety in Welding, Cutting and Allied 
Processes,'' sections 4.3 and E4.3, (1999).
    (4) National Fire Protection Association (NFPA) 70, ``National 
Electrical Code,'' (2005).
    (5) NFPA 70E, ``Standard for Electrical Safety in the Workplace,'' 
(2004).
    (6) American Conference of Governmental Industrial Hygienists, 
``Threshold Limit Values for Chemical Substances and Physical Agents 
and Biological Exposure Indices,'' (2005).
    (7) American Society of Mechanical Engineers (ASME) Boilers and 
Pressure Vessel Code, sections I through XII including applicable Code 
Cases, (2004).
    (8) ASME B31 (ASME Code for Pressure Piping) as follows:
    (i) B31.1--2001--Power Piping, and B31.1a--2002--Addenda to ASME 
B31.1--2001;
    (ii) B31.2--1968--Fuel Gas Piping;
    (iii) B31.3--2002--Process Piping;
    (iv) B31.4--2002--Pipeline Transportation Systems for Liquid 
Hydrocarbons and Other Liquids;
    (v) B31.5--2001--Refrigeration Piping and Heat Transfer Components, 
and B31.5a--2004, Addenda to ASME B31.5--2001;
    (vi) B31.8--2003--Gas Transmission and Distribution Piping Systems;
    (vii) B31.8S--2001--Managing System Integrity of Gas Pipelines;
    (viii) B31.9--1996--Building Services Piping;
    (ix) B31.11--2002--Slurry Transportation Piping Systems; and
    (x) B31G--1991--Manual for Determining Remaining Strength of 
Corroded Pipelines.
    (9) DOE Manual 231.1-1A, Environment, Safety and Health Reporting 
Manual, September 9, 2004.
    (10) DOE Manual 440.1-1A, DOE Explosives Safety Manual, Contractor 
Requirements Document (Attachment 2), January 9, 2006.

Subpart D--Variances


Sec.  851.30  Consideration of variances.

    (a) Variances shall be granted by the Under Secretary after 
considering the recommendation of the Assistant Secretary for 
Environment, Safety and Health. The authority to grant a variance 
cannot be delegated.
    (b) The application must satisfy the requirements for applications 
specified in Sec.  851.31.


Sec.  851.31  Variance process.

    (a) Application. Contractors desiring a variance from a safety and 
health standard, or portion thereof, may submit a written application 
containing the information in paragraphs (c) and (d) of this section to 
the appropriate CSO.
    (1) The CSO may forward the application to the Assistant Secretary 
for Environment, Safety and Health.
    (2) If the CSO does not forward the application to the Assistant 
Secretary for Environment, Safety and Health, the CSO must return the 
application to the contractor with a written statement explaining why 
the application was not forwarded.
    (3) Upon receipt of an application from a CSO, the Assistant 
Secretary for Environment, Safety and Health must review the 
application for a variance and make a written recommendation to:
    (i) Approve the application;
    (ii) Approve the application with conditions; or
    (iii) Deny the application.
    (b) Defective applications. If an application submitted pursuant to 
Sec.  851.31(a) is determined by the Assistant Secretary for 
Environment, Safety and Health to be incomplete, the Assistant 
Secretary may:
    (1) Return the application to the contractor with a written 
explanation of what information is needed to permit consideration of 
the application; or
    (2) Request the contractor to provide necessary information.
    (c) Content. All variance applications submitted pursuant to 
paragraph (a) of this section must include:
    (1) The name and address of the contractor;

[[Page 6938]]

    (2) The address of the DOE site or sites involved;
    (3) A specification of the standard, or portion thereof, from which 
the contractor seeks a variance;
    (4) A description of the steps that the contractor has taken to 
inform the affected workers of the application, which must include 
giving a copy thereof to their authorized representative, posting a 
statement, giving a summary of the application and specifying where a 
copy may be examined at the place or places where notices to workers 
are normally posted; and
    (5) A description of how affected workers have been informed of 
their right to petition the Assistant Secretary for Environment, Safety 
and Health or designee for a conference; and
    (6) Any requests for a conference, as provided in Sec.  851.34.
    (d) Types of variances. Contractors may apply for the following 
types of variances:
    (1) Temporary variance. Applications for a temporary variance 
pursuant to paragraph (a) of this section must be submitted at least 30 
days before the effective date of a new safety and health standard and, 
in addition to the content required by paragraph (b) of this section, 
must include:
    (i) A statement by the contractor explaining the contractor is 
unable to comply with the standard or portion thereof by its effective 
date and a detailed statement of the factual basis and representations 
of qualified persons that support the contractor's statement;
    (ii) A statement of the steps the contractor has taken and plans to 
take, with specific dates if appropriate, to protect workers against 
the hazard covered by the standard;
    (iii) A statement of when the contractor expects to be able to 
comply with the standard and of what steps the contractor has taken and 
plans to take, with specific dates if appropriate, to come into 
compliance with the standard;
    (iv) A statement of the facts the contractor would show to 
establish that:
    (A) The contractor is unable to comply with the standard by its 
effective date because of unavailability of professional or technical 
personnel or materials and equipment needed to come into compliance 
with the standard or because necessary construction or alteration of 
facilities cannot be completed by the effective date;
    (B) The contractor is taking all available steps to safeguard the 
workers against the hazards covered by the standard; and
    (C) The contractor has an effective program for coming into 
compliance with the standard as quickly as practicable.
    (2) Permanent variance. An application submitted for a permanent 
variance pursuant to paragraph (a) of this section must, in addition to 
the content required in paragraph (b) of this section, include:
    (i) A description of the conditions, practices, means, methods, 
operations, or processes used or proposed to be used by the contractor; 
and
    (ii) A statement showing how the conditions, practices, means, 
methods, operations, or processes used or proposed to be used would 
provide workers a place of employment which is as safe and healthful as 
would result from compliance with the standard from which a variance is 
sought.
    (3) National defense variance. (i) An application submitted for a 
national defense variance pursuant to paragraph (a) of this section 
must, in addition to the content required in paragraph (b) of this 
section, include:
    (A) A statement by the contractor showing that the variance sought 
is necessary to avoid serious impairment of national defense; and
    (B) A statement showing how the conditions, practices, means, 
methods, operations, or processes used or proposed to be used would 
provide workers a safe and healthful place of employment in a manner 
that, to the extent practical taking into account the national defense 
mission, is consistent with the standard from which a variance is 
sought.
    (ii) A national defense variance may be granted for a maximum of 
six months, unless there is a showing that a longer period is essential 
to carrying out a national defense mission.


Sec.  851.32  Action on variance requests.

    (a) Procedures for an approval recommendation. (1) If the Assistant 
Secretary for Environment, Safety and Health recommends approval of a 
variance application, the Assistant Secretary must forward to the Under 
Secretary the variance application and the approval recommendation 
including a discussion of the basis for the recommendation and any 
terms and conditions proposed for inclusion as part of the approval.
    (2) If the Under Secretary approves a variance, the Under Secretary 
must notify the Assistant Secretary for Environment, Safety and Health 
who must notify the Office of Price-Anderson Enforcement and the CSO 
who must promptly notify the contractor.
    (3) The notification must include a reference to the safety and 
health standard or portion thereof that is the subject of the 
application, a detailed description of the variance, the basis for the 
approval and any terms and conditions of the approval.
    (4) If the Under Secretary denies a variance, the Under Secretary 
must notify the Assistant Secretary for Environment, Safety and Health 
who must notify the appropriate CSO who must notify the contractor.
    (5) The notification must include the grounds for denial.
    (b) Approval criteria. A variance may be granted if the variance:
    (1) Is consistent with section 3173 of the NDAA;
    (2) Does not present an undue risk to worker safety and health;
    (3) Is warranted under the circumstances;
    (4) Satisfies the requirements of Sec.  851.31 of this part for the 
type of variance requested.
    (c) Procedures for a denial recommendation. (1) If the Assistant 
Secretary for Environment, Safety and Health recommends denial of a 
variance application, the Assistant Secretary must notify the CSO of 
the denial recommendation and the grounds for the denial 
recommendation.
    (2) Upon receipt of a denial recommendation, the CSO may:
    (i) Notify the contractor that the variance application is denied 
on the grounds cited by the Assistant Secretary; or
    (ii) Forward to the Under Secretary the variance application, the 
denial recommendation, the grounds for the denial recommendation, and 
any information that supports an action different than that recommended 
by the Assistant Secretary.
    (3) If the CSO forwards the application to the Under Secretary, the 
procedures in paragraphs (a)(2), (3), (4) and (5) of this section 
apply.
    (4) A denial of an application pursuant to this section shall be 
without prejudice to submitting of another application
    (d) Grounds for denial of a variance. A variance may be denied if:
    (1) Enforcement of the violation would be handled as a de minimis 
violation (defined as a deviation from the requirement of a standard 
that has no direct or immediate relationship to safety or health, and 
no enforcement action will be taken);
    (2) When a variance is not necessary for the conditions, practice, 
means, methods, operations, or processes used or proposed to be used by 
contractor;
    (3) Contractor does not demonstrate that the approval criteria are 
met.

[[Page 6939]]

Sec.  851.33  Terms and conditions.

    A variance may contain appropriate terms and conditions including, 
but not limited to, provisions that:
    (a) Limit its duration;
    (b) Require alternative action;
    (c) Require partial compliance; and
    (d) Establish a schedule for full or partial compliance.


Sec.  851.34  Requests for conferences.

    (a) Within the time allotted by a notice of the filling of an 
application, any affected contractor or worker may file with the 
Assistant Secretary for Environment, Safety and Health a request for a 
conference on the application for a variance.
    (b) A request for a conference filed pursuant to paragraph (a) of 
this section must include:
    (1) A concise statement explaining how the contractor or worker 
would be affected by the variance applied for, including relevant 
facts;
    (2) A specification of any statement or representation in the 
application which is denied, and a concise summary of the evidence that 
would be adduced in support of each denial; and
    (3) Any other views or arguments on any issue of fact or law 
presented.
    (c) The Assistant Secretary for Environment, Safety and Health, or 
designee, must respond to a request within fifteen days and, if the 
request is granted, indicate the time and place of the conference and 
the DOE participants in the conference.

Subpart E--Enforcement Process


Sec.  851.40  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. DOE Enforcement Officers have the right to 
enter work areas without delay to the extent practicable, to conduct 
inspections under this subpart.
    (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.
    (c) Any worker or worker representative may request that the 
Director initiate an investigation or inspection pursuant to paragraph 
(a) of this section. A request for an investigation or inspection must 
describe the subject matter or activity to be investigated or inspected 
as fully as possible and include supporting documentation and 
information. The worker or worker representative has the right to 
remain anonymous upon filing a request for an investigation or 
inspection.
    (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 and must inform the contractor of the 
general purpose of the investigation or inspection.
    (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. Prior 
to such authorization, DOE must determine that disclosure is not 
precluded by the Freedom of Information Act, 5 U.S.C. 552 and part 1004 
of this title. Once disclosed pursuant to the Director's authorization, 
the information or documents are a matter of public record.
    (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 corrective action taken or not taken by the 
contractor, any mitigating or aggravating circumstances, and any other 
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.
    (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.  851.41  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 thereto, 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 that form the 
basis for the order and what remedy, if any, is imposed.
    (5) A consent order shall constitute a final order.


Sec.  851.42  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 (PNOV) to the contractor.
    (b) A PNOV 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 obligation of the contractor to submit a written reply to 
the Director within 30 calendar days of receipt of the PNOV.
    (c) A reply to a PNOV must contain a statement of all relevant 
facts pertaining to an alleged violation.
    (1) The reply must:
    (i) State any facts, explanations and arguments that support a 
denial of the alleged violation;
    (ii) Demonstrate any extenuating circumstances or other reason why 
a

[[Page 6940]]

proposed remedy should not be imposed or should be mitigated;
    (iii) Discuss the relevant authorities that 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.
    (d) If a contractor fails to submit a written reply within 30 
calendar days of receipt of a PNOV:
    (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.
    (e) A copy of the PNOV must be prominently posted, once final, at 
or near the location where the violation occurred until the violation 
is corrected.


Sec.  851.43  Final notice of violation.

    (a) If a contractor submits a written reply within 30 calendar days 
of receipt of a preliminary notice of violation (PNOV), that presents a 
disagreement with any aspect of the PNOV and civil penalty, the 
Director must review the submitted reply and make a final determination 
whether the contractor violated or is continuing to violate a 
requirement of this part.
    (b) Based on a determination by the Director that a contractor has 
violated or is continuing to violate a requirement of this part, the 
Director may issue to the contractor a final notice of violation that 
states concisely the determined violation and any remedy, including the 
amount of any civil penalty imposed on the contractor. The final notice 
of violation must state that the contractor may petition the Office of 
Hearings and Appeals for review of the final notice in accordance with 
10 CFR part 1003, subpart G.
    (c) 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.  851.42:
    (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.  851.44  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.  851.45  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--Worker Safety and Health Functional Areas

    This appendix establishes the mandatory requirements for 
implementing the applicable functional areas required by Sec.  
851.24.

1. Construction Safety

    (a) For each separately definable construction activity (e.g., 
excavations, foundations, structural steel, roofing) the 
construction contractor must:
    (1) Prepare and have approved by the construction manager an 
activity hazard analysis prior to commencement of affected work. 
Such analyses must:
    (i) Identify foreseeable hazards and planned protective 
measures;
    (ii) Address further hazards revealed by supplemental site 
information (e.g., site characterization data, as-built drawings) 
provided by the construction manager;
    (iii) Provide drawings and/or other documentation of protective 
measures for which applicable Occupational Safety and Health 
Administration (OSHA) standards require preparation by a 
Professional Engineer or other qualified professional, and
    (iv) Identify competent persons required for workplace 
inspections of the construction activity, where required by OSHA 
standards.
    (2) Ensure workers are aware of foreseeable hazards and the 
protective measures described within the activity analysis prior to 
beginning work on the affected activity.
    (3) Require that workers acknowledge being informed of the 
hazards and protective measures associated with assigned work 
activities. Those workers failing to utilize appropriate protective 
measures must be subject to the construction contractor's 
disciplinary process.
    (b) During periods of active construction (i.e., excluding 
weekends, weather delays, or other periods of work inactivity), the 
construction contractor must have a designated representative on the 
construction worksite who is knowledgeable of the project's hazards 
and has full authority to act on behalf of the construction 
contractor. The contractor's designated representative must make 
frequent and regular inspections of the construction worksite to 
identify and correct any instances of noncompliance with project 
safety and health requirements.
    (c) Workers must be instructed to report to the construction 
contractor's designated representative, hazards not previously 
identified or evaluated. If immediate corrective action is not 
possible or the hazard falls outside of project scope, the 
construction contractor must immediately notify affected workers, 
post appropriate warning signs, implement needed interim control 
measures, and notify the construction manager of the action taken. 
The contractor or the designated representative must stop work in 
the affected area until appropriate protective measures are 
established.
    (d) The construction contractor must prepare a written 
construction project safety and health plan to implement the 
requirements of this section and obtain approval of the plan by the 
construction manager prior to commencement of any work covered by 
the plan. In the plan, the contractor must designate the 
individual(s) responsible for on-site implementation of the plan, 
specify qualifications for those individuals, and provide a list of 
those project activities for which subsequent hazard analyses are to 
be performed. The level of detail within the construction project 
safety and health plan should be commensurate with the size, 
complexity and risk level of the construction project. The content 
of this plan need not duplicate those provisions that were 
previously submitted and approved as required by Sec.  851.11.

2. Fire Protection

    (a) Contractors must implement a comprehensive fire safety and 
emergency response program to protect workers commensurate with the 
nature of the work that is performed. This includes appropriate 
facility and site-wide fire protection, fire alarm notification and 
egress features, and access to a fully staffed, trained, and 
equipped emergency response organization that is capable of 
responding in a timely and effective manner to site emergencies.
    (b) An acceptable fire protection program must include those 
fire protection criteria and procedures, analyses, hardware and 
systems, apparatus and equipment, and personnel that would 
comprehensively ensure that the objective in paragraph 2(a) of this 
section is met. This includes meeting applicable building codes and 
National Fire Protection Association codes and standards.

3. Explosives Safety

    (a) Contractors responsible for the use of explosive materials 
must establish and implement a comprehensive explosives safety 
program.
    (b) Contractors must comply with the policy and requirements 
specified in the DOE Manual 440.1-1A, DOE Explosives Safety Manual, 
Contractor Requirements Document (Attachment 2), January 9, 2006

[[Page 6941]]

(incorporated by reference, see Sec.  851.27). A Contractor may 
choose a successor version, if approved by DOE.
    (c) Contractors must determine the applicability of the 
explosives safety directive requirements to research and development 
laboratory type operations consistent with the DOE level of 
protection criteria described in the explosives safety directive.

4. Pressure Safety

    (a) Contractors 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) Contractors must ensure that all pressure vessels, boilers, 
air receivers, and supporting piping systems conform to:
    (1) The applicable American Society of Mechanical Engineers 
(ASME) Boiler and Pressure Vessel Code (2004); sections I through 
section XII including applicable Code Cases (incorporated by 
reference, see Sec.  851.27)
    (2) The applicable ASME B31 (Code for Pressure Piping) standards 
as indicated below; and or as indicated in paragraph (b)(3) of this 
section:
    (i) B31.1--2001--Power Piping, and B31.1a--2002--Addenda to ASME 
B31.1--2001 (incorporated by reference, see Sec.  851.27);
    (ii) B31.2--1968--Fuel Gas Piping (incorporated by reference, 
see Sec.  851.27);
    (iii) B31.3--2002--Process Piping (incorporated by reference, 
see Sec.  851.27);
    (iv) B31.4--2002--Pipeline Transportation Systems for Liquid 
Hydrocarbons and Other Liquids (incorporated by reference, see Sec.  
851.27);
    (v) B31.5--2001--Refrigeration Piping and Heat Transfer 
Components, and B31.5a--2004, Addenda to ASME B31.5--2001 
(incorporated by reference, see Sec.  851.27);
    (vi) B31.8--2003--Gas Transmission and Distribution Piping 
Systems (incorporated by reference, see Sec.  851.27);
    (vii) B31.8S--2001--Managing System Integrity of Gas Pipelines 
(incorporated by reference, see Sec.  851.27);
    (viii) B31.9--1996--Building Services Piping (incorporated by 
reference, see Sec.  851.27);
    (ix) B31.11--2002--Slurry Transportation Piping Systems 
(incorporated by reference, see Sec.  851.27); and
    (x) B31G--1991--Manual for Determining Remaining Strength of 
Corroded Pipelines (incorporated by reference, see Sec.  851.27).
    (3) The strictest applicable state and local codes.
    (c) When national consensus codes are not applicable (because of 
pressure range, vessel geometry, use of special materials, etc.), 
contractors must implement measures to provide equivalent protection 
and ensure a level of safety greater than or equal to the level of 
protection afforded by the ASME or applicable state or local code. 
Measures must include the following:
    (1) Design drawings, sketches, and calculations must be reviewed 
and approved by a qualified independent design professional (i.e., 
professional engineer). Documented organizational peer review is 
acceptable.
    (2) Qualified personnel must be used to perform examinations and 
inspections of materials, in-process fabrications, non-destructive 
tests, and acceptance test.
    (3) Documentation, traceability, and accountability must be 
maintained for each pressure vessel or system, including 
descriptions of design, pressure conditions, testing, inspection, 
operation, repair, and maintenance.

5. Firearms Safety

    (a) A contractor engaged in DOE activities involving the use of 
firearms 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.
    (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) Contractors 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) Contractors 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) Contractors must conduct formal appraisals assessing 
implementation of procedures, personnel responsibilities, and duty 
assignments to ensure overall policy objectives and performance 
criteria are being met by qualified personnel.
    (e) Contractors 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 the Head of DOE Field Element 
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 range facilities; and
    (7) Live fire ranges, approved by the Head of DOE Field Element, 
must be properly sited to protect personnel on the range, as well as 
personnel and property not associated with the range.
    (f) Contractors must ensure that the transportation, handling, 
placarding, and storage of munitions conform to the applicable DOE 
requirements.

6. Industrial Hygiene

    Contractors must implement a comprehensive industrial hygiene 
program that includes at least the following elements:
    (a) Initial or baseline surveys and periodic resurveys and/or 
exposure monitoring as appropriate of all work areas or operations 
to identify and evaluate potential worker health risks;
    (b) Coordination with planning and design personnel to 
anticipate and control health hazards that proposed facilities and 
operations would introduce;
    (c) Coordination with cognizant occupational medical, 
environmental, health physics, and work planning professionals;
    (d) Policies and procedures to mitigate the risk from identified 
and potential occupational carcinogens;
    (e) Professionally and technically qualified industrial 
hygienists to manage and implement the industrial hygiene program; 
and
    (f) Use of respiratory protection equipment tested under the DOE 
Respirator Acceptance Program for Supplied-air Suits (DOE-Technical 
Standard-1167-2003) when National Institute for Occupational Safety 
and Health-approved respiratory protection does not exist for DOE 
tasks that require such equipment. For security operations conducted 
in accordance with Presidential Decision Directive 39, U.S. POLICY 
ON

[[Page 6942]]

COUNTER TERRORISM, use of Department of Defense military type masks 
for respiratory protection by security personnel is acceptable.

7. Biological Safety

    (a) Contractors must establish and implement a biological safety 
program that:
    (1) Establishes an Institutional Biosafety Committee (IBC) or 
equivalent. The IBC must:
    (i) Review any work with biological etiologic agents for 
compliance with applicable Centers for Disease Control and 
Prevention (CDC), National Institutes of Health (NIH), World Health 
Organization (WHO), and other international, Federal, State, and 
local guidelines and assess the containment level, facilities, 
procedures, practices, and training and expertise of personnel; and
    (ii) Review the site's security, safeguards, and emergency 
management plans and procedures to ensure they adequately consider 
work involving biological etiologic agents.
    (2) Maintains an inventory and status of biological etiologic 
agents, and provide to the responsible field and area office, 
through the laboratory IBC (or its equivalent), an annual status 
report describing the status and inventory of biological etiologic 
agents and the biological safety program.
    (3) Provides for submission to the appropriate Head of DOE Field 
Element, for review and concurrence before transmittal to the 
Centers for Disease Control and Prevention (CDC), each Laboratory 
Registration/Select Agent Program registration application package 
requesting registration of a laboratory facility for the purpose of 
transferring, receiving, or handling biological select agents.
    (4) Provides for submission to the appropriate Head of 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 
to the appropriate Head of DOE Field Element 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.
    (5) Confirms that the site safeguards and security plans and 
emergency management programs address biological etiologic agents, 
with particular emphasis on biological select agents.
    (6) Establishes an immunization policy for personnel working 
with biological etiologic agents based on the evaluation of risk and 
benefit of immunization.
    (b) [Reserved]

8. Occupational Medicine

    (a) Contractors must establish and provide comprehensive 
occupational medicine services to workers employed at a covered work 
place who:
    (1) Work on a DOE site for more than 30 days in a 12-month 
period; or
    (2) Are enrolled for any length of time in a medical or exposure 
monitoring program required by this rule and/or any other applicable 
Federal, State or local regulation, or other obligation.
    (b) The occupational medicine services must be under the 
direction of a graduate of a school of medicine or osteopathy who is 
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, employee 
assistance counselors, and other occupational health personnel 
providing occupational medicine services must be licensed, 
registered, or certified as required by Federal or State law where 
employed.
    (d) Contractors must provide the occupational medicine providers 
access to hazard information by promoting its communication, 
coordination, and sharing among operating and environment, safety, 
and health protection organizations.
    (1) Contractors must provide the occupational medicine providers 
with access to information on the following:
    (i) Current information about actual or potential work-related 
site hazards (chemical, radiological, physical, biological, or 
ergonomic);
    (ii) Employee job-task and hazard analysis information, 
including essential job functions;
    (iii) Actual or potential work-site exposures of each employee; 
and
    (iv) Personnel actions resulting in a change of job functions, 
hazards or exposures.
    (2) Contractors must notify the occupational medicine providers 
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);
    (3) Contractors must provide the occupational medicine provider 
information on, and the opportunity to participate in, worker safety 
and health team meetings and committees;
    (4) Contractors must provide occupational medicine providers 
access to the workplace for evaluation of job conditions and issues 
relating to workers' health.
    (e) A designated occupational medicine provider must:
    (1) Plan and implement the occupation medicine services; and
    (2) Participate in worker protection teams to build and maintain 
necessary partnerships among workers, their representatives, 
managers, and safety and health protection specialists in 
establishing and maintaining a safe and healthful workplace.
    (f) A record, containing any medical, health history, exposure 
history, and demographic data collected for the occupational 
medicine purposes, must be developed and maintained for each 
employee for whom medical services are provided. All occupational 
medical records must be maintained in accordance with Executive 
Order 13335, Incentives for the Use of Health Information 
Technology.
    (1) Employee medical, psychological, and employee assistance 
program (EAP) records must be kept confidential, protected from 
unauthorized access, and stored under conditions that ensure their 
long-term preservation. Psychological records must be maintained 
separately from medical records and in the custody the designated 
psychologist in accordance with 10 CFR 712.38(b)(2).
    (2) Access to these records must be provided in accordance with 
DOE regulations implementing the Privacy Act and the Energy 
Employees Occupational Illness Compensation Program Act.
    (g) The occupational medicine services provider 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.
    (1) Workers must be informed of the purpose and nature of the 
medical evaluations and tests offered by the occupational medicine 
provider.
    (i) The purpose, nature and results of evaluations and tests 
must be clearly communicated verbally and in writing to each worker 
provided testing;
    (ii) The communication must be documented in the worker's 
medical record; and (2) The following health evaluations must be 
conducted when determined necessary by the occupational medicine 
provider for the purpose of providing initial and continuing 
assessment of employee fitness for duty.
    (i) At the time of employment entrance or transfer to a job with 
new functions and hazards, a medical placement evaluation of the 
individual's general health and physical and psychological capacity 
to perform work will 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 occupational medicine services 
provider, will be provided on the frequency required.
    (iii) Diagnostic examinations will evaluate employee's injuries 
and illnesses to determine work-relatedness, the applicability of 
medical restrictions, and referral for definitive care, as 
appropriate.
    (iv) After a work-related injury or illness or an absence due to 
any injury or illness lasting 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 psychological capacity to perform work and 
return to duty.
    (v) At the time of separation from employment, individuals shall 
be offered a general health evaluation to establish a record of 
physical condition.
    (h) The occupational medicine provider must monitor ill and 
injured workers to facilitate their rehabilitation and safe return 
to work and to minimize lost time and its associated costs.
    (1) The occupational medicine provider must place an individual 
under medical restrictions when health evaluations indicate that the 
worker should not perform certain job tasks. The occupational 
medicine

[[Page 6943]]

provider must notify the worker and contractor management when 
employee work restrictions are imposed or removed.
    (i) Occupational medicine provider physician and medical staff 
must, on a timely basis, communicate results of health evaluations 
to management and safety and health protection specialists to 
facilitate the mitigation of worksite hazards.
    (j) The occupational medicine provider must include measures to 
identify and manage the principal preventable causes of premature 
morbidity and mortality affecting worker health and productivity.
    (1) The contractor must include programs to prevent and manage 
these causes of morbidity when evaluations demonstrate their cost 
effectiveness.
    (2) Contractors must make available to the occupational medicine 
provider appropriate access to information from health, disability, 
and other insurance plans (de-identified as necessary) in order to 
facilitate this process.
    (k) The occupational medicine services provider 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 EAPs;
    (2) Contractor-sponsored or contractor-supported alcohol and 
other substance abuse rehabilitation programs; and
    (3) Contractor-sponsored or contractor-supported wellness 
programs.
    (4) The occupational medicine services provider must review the 
medical aspects of immunization programs, blood-borne pathogens 
programs, and bio-hazardous waste programs to evaluate their 
conformance to applicable guidelines.
    (5) The occupational medicine services provider must develop and 
periodically review medical emergency response procedures included 
in site emergency and disaster preparedness plans. The medical 
emergency responses must be integrated with nearby community 
emergency and disaster plans.

9. Motor Vehicle Safety

    (a) Contractors 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 address, as applicable 
to the contractor's operations:
    (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.

10. Electrical Safety

    Contractors must implement a comprehensive electrical safety 
program appropriate for the activities at their site. This program 
must meet the applicable electrical safety codes and standards 
referenced in Sec.  851.23.

11. Nanotechnology Safety--Reserved

    The Department has chosen to reserve this section since policy 
and procedures for nanotechnology safety are currently being 
developed. Once these policies and procedures have been approved, 
the rule will be amended to include them through a rulemaking 
consistent with the Administrative Procedure Act.

12. Workplace Violence Prevention--Reserved

    The Department has chosen to reserve this section since the 
policy and procedures for workplace violence prevention are 
currently being developed. Once these policies and procedures have 
been approved, the rule will be amended to include them through a 
rulemaking consistent with the Administrative Procedure Act.

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

I. Introduction

    (a) This policy statement sets forth the general framework 
through which the U.S. Department of Energy (DOE) will seek to 
ensure compliance with its worker safety and health regulations, 
and, in particular, exercise the civil penalty authority provided to 
DOE in section 3173 of Public Law 107-314, Bob Stump National 
Defense Authorization Act for Fiscal Year 2003 (December 2, 2002) 
(``NDAA''), amending the Atomic Energy Act (AEA) to add section 
234C. The policy set forth herein is applicable to violations of 
safety and health regulations in this part by DOE contractors, 
including DOE contractors who are indemnified under the Price-
Anderson Act, 42 U.S.C. 2210(d), and their subcontractors and 
suppliers (hereafter collectively referred to as DOE contractors). 
This policy statement is not a regulation and is intended only to 
provide general guidance to those persons subject to the regulations 
in this part. It is not intended to establish a ``cookbook'' 
approach to the initiation and resolution of situations involving 
noncompliance with the regulations in this part. Rather, DOE intends 
to consider the particular facts of each noncompliance 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 placing 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 noncompliances. 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 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 based on:
    (1) Timely self-identification of worker safety noncompliances;
    (2) Prompt and complete reporting of such noncompliances to DOE;
    (3) Prompt correction of safety noncompliances 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.

[[Page 6944]]

    (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 and health 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 (and their 
subcontractors and suppliers thereto) covered by the DOE Price-
Anderson indemnification system, 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 following actions that direct NNSA 
contractors:
    (1) Subpoenas;
    (2) Orders to compel attendance; and
    (3) Determines to disclose information or documents obtained 
during an investigation or inspection, PNOVs, Notices of Violations, 
and Final Notices of Violations. The NNSA Administrator acts after 
consideration of the Director's recommendation.

V. Procedural Framework

    (a) Title 10 CFR part 851 sets forth the procedures DOE will use 
in exercising its enforcement authority, including the issuance of 
Notices of Violation and the resolution of an administrative appeal 
in the event a DOE contractor elects to petition the Office of 
Hearings and Appeals for review.
    (b) Pursuant to 10 CFR part 851 subpart 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. See 10 CFR 851.44. 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 safety and health risk 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 the potential severity of 
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.

VII. Enforcement Conferences

    (a) 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) All enforcement conferences are convened at the discretion 
of the Director.
    (c) The PNOV will normally be issued promptly, before the 
opportunity for an enforcement conference, following the inspection/
investigation. In some cases an enforcement conference may be 
conducted onsite at the conclusion of an inspection/investigation.
    (d) The contractor may request an enforcement conference if they 
believe additional information pertinent to the enforcement action 
could best be conveyed through a meeting.
    (e) 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 discussions regarding 
potential or alleged violations and will not normally be open to the 
public. In circumstances for which immediate enforcement action is 
necessary in the interest of worker safety and health, such action 
will be taken prior to the enforcement conference, which may still 
be held after the necessary DOE action has been taken.

VIII. Enforcement Letter

    (a) In cases where DOE has decided not to conduct an 
investigation or inspection or issue a Preliminary Notice of 
Violation (PNOV), DOE may send an Enforcement Letter, signed by the 
Director to the contractor. 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 that 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 may recognize 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.

[[Page 6945]]

    (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. 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 and the basis to 
support the conclusion, 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.
    (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 its contractors to have the proper management 
and supervisory systems in place to assure that all activities at 
covered workplaces, 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 covered workplaces. Accordingly, this policy should 
not be construed to excuse personnel errors.
    (e) The limitations on remedies under section 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). See 10 CFR 851.5(a).
    (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 Director and appropriate 
contracting officers will coordinate their efforts in compliance 
with the statute. See 10 CFR 851.5(b).
    (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. See 10 CFR 851.5(c).
    (4) A 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. 
See 10 CFR 851.5(d).

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 851.5(a). 
Civil penalties are designed to emphasize the need for lasting 
remedial action, deter future violations, and underscore the 
importance of DOE contractor self-identification, reporting, and 
correction of violations of the worker safety and health 
requirements in this part.
    (b) Absent mitigating circumstances as described below, or 
circumstances otherwise warranting the exercise of enforcement 
discretion by DOE as described in this section, civil penalties will 
be proposed for Severity Level I and II violations.
    (c) DOE will impose different base level penalties considering 
the severity level of the violation. Table A-1 shows the daily base 
civil penalties for the various categories of severity levels. 
However, as described below in section IX, paragraph b.3, 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 use 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 on its own merits and adjust the 
base civil penalty values upward or downward. As indicated below, 
Table A-1 identifies the daily base civil penalty values for 
different severity levels. After considering all relevant 
circumstances, civil penalties may be adjusted up or down based on 
the mitigating or aggravating factors described later in this 
section. In no instance will a civil penalty for any one violation 
exceed the statutory limit of $70,000 per day. In cases where the 
DOE contractor had knowledge of a violation and has not reported it 
to DOE and taken corrective action despite an opportunity to do so, 
DOE will consider utilizing its per day civil penalty authority. 
Further, as described in this section, the duration of a violation 
will be taken into account in adjusting the base civil penalty.

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

3. Adjustment Factors

    (a) DOE may reduce a penalty based on mitigating circumstances 
or increase a penalty based on aggravating circumstances. 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. Civil penalties are intended to emphasize the importance of

[[Page 6946]]

compliance and to deter future violations. The single most important 
goal of the DOE enforcement program is to encourage early 
identification and reporting of 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 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 
conditions 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 
should almost always be aware of worker safety and health 
noncompliances before they are discovered by DOE. Obviously, worker 
safety and health is enhanced if noncompliances are discovered (and 
promptly corrected) by the DOE contractor, rather than by DOE, which 
may not otherwise become aware of a noncompliance until later, 
during the course of an inspection, performance assessment, or 
following an incident at the facility. Early identification of 
worker safety and health-related noncompliances by DOE contractors 
has the added benefit of allowing information that could prevent 
such noncompliances at other facilities in the DOE complex to be 
shared with other appropriate DOE contractors.
    (b) Pursuant to this enforcement philosophy, DOE will provide 
substantial incentive for the early self-identification, reporting, 
and prompt correction of conditions which constitute, or could lead 
to, violations of the worker safety and health requirements. Thus, 
the civil penalty may be reduced 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 aggravating circumstances and may 
increase the penalty amount. 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, 
DOE-identified flagrant 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.
    (e) Additionally, adjustment to the amount of civil penalty will 
be dependent, in part, on the degree of culpability of the DOE 
contractor with regard to the violation. Thus, inadvertent 
violations will be viewed differently from those in which there is 
gross negligence, deception, or willfulness. In addition to the 
severity of the underlying violation and level of culpability 
involved, DOE will also consider the position, training and 
experience of those 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.
    (f) Other factors that will be considered in determining the 
civil penalty amount are the duration of the violation (how long the 
condition has presented a potential exposure to workers), the extent 
of the condition (number of instances of the violation), the 
frequency of the exposure (how often workers are exposed), the 
proximity of the workers to the exposure, and the past history of 
similar violations.
    (g) DOE expects contractors to provide full, complete, timely, 
and accurate information and reports. Accordingly, the penalty 
amount for a violation involving either a failure to make a required 
report or notification to the DOE or an untimely report or 
notification, will be based upon 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 aware or should have been aware of the 
condition or event that it failed to report.

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. 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, 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 noncompliances 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 NTS 
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 
determines that the noncompliance was significantly 
mischaracterized, DOE will not credit the internal tracking as 
representing appropriate self-reporting.

6. Self-Disclosing Events

    (a) DOE expects contractors to demonstrate acceptance of 
responsibility for worker safety and health by proactively 
identifying noncompliances. When the occurrence of an event 
discloses noncompliances that the contractor could have or should 
have identified before the event, DOE will not generally reduce 
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 improve 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

[[Page 6947]]

    (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 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, 
appropriate 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 851.7, interpretative 
ruling of a requirement of this part must be issued in accordance 
with the provisions of 851.7 to be binding. 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 noncompliances, DOE may exercise discretion as follows:
    (a) In accordance with the previous discussion, DOE may refrain 
from issuing a civil penalty for a violation that 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 is not 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 that 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 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 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 severity of the 
initial violation, the comprehensiveness of the corrective action, 
whether the matter was reported, and whether the additional 
violation(s) substantially change the significance or character of 
the concern arising out of the initial violation.
    (e) The preceding paragraphs are 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.

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 851.40, 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 IX, ``Enforcement 
Actions.''
    (b) DOE recognizes that oral information may in some situations 
be inherently less reliable than written submittals because of the 
absence of an opportunity for reflection and management review. 
However, DOE must be able to rely on oral communications from 
officials of DOE contractors concerning significant information. In 
determining whether to take enforcement action for an oral 
statement, consideration will be given to such factors as:
    (1) The degree of knowledge that the communicator should have 
had regarding the matter in view of his or her position, training, 
and experience;
    (2) The opportunity and time available prior to the 
communication to assure the accuracy or completeness of the 
information;
    (3) The degree of intent or negligence, if any, involved;
    (4) The formality of the communication;
    (5) The reasonableness of DOE reliance on the information;
    (6) The importance of the information that was wrong or not 
provided; and
    (7) The reasonableness of the explanation for not providing 
complete and accurate information.
    (c) Absent gross negligence or willfulness, an incomplete or 
inaccurate oral statement normally will not be subject to 
enforcement action unless it involves significant information 
provided by an official of a DOE contractor. However, enforcement 
action may be taken for an unintentionally incomplete or inaccurate 
oral statement provided to DOE by an official of a DOE contractor or 
others on behalf of the DOE contractor, if a record was made of the 
oral information and provided to the DOE contractor thereby 
permitting an opportunity to correct the oral information, such as 
if a transcript of the communication or meeting summary containing 
the error was made available to the DOE contractor and was not 
subsequently corrected in a timely manner.
    (d) When a DOE contractor has corrected inaccurate or incomplete 
information, the decision to issue a citation for the initial 
inaccurate or incomplete information normally will be dependent on 
the circumstances, including the ease of detection of the error, the 
timeliness of the correction, whether DOE or the DOE contractor 
identified the problem with the communication, and whether DOE 
relied on the information prior to the correction. Generally, if the 
matter was promptly identified and corrected by the DOE contractor 
prior to reliance by DOE, or before DOE raised a question about the 
information, no enforcement action will be taken for the initial 
inaccurate or incomplete information. On the other hand, if the 
misinformation is identified after DOE relies on it, or after some 
question is raised regarding the accuracy of the information, then 
some enforcement action normally will be taken even if it is in fact 
corrected.
    (e) If the initial submission was accurate when made but later 
turns out to be

[[Page 6948]]

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.

[FR Doc. 06-964 Filed 2-8-06; 8:45 am]
BILLING CODE 6450-01-P