[Federal Register Volume 71, Number 125 (Thursday, June 29, 2006)]
[Rules and Regulations]
[Pages 36988-36991]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-5789]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1952


Occupational Safety and Health of Contractor Employees at Certain 
Energy Department Sites; Jurisdiction and Enforcement Responsibilities; 
Clarification Regarding State Plans--Arizona, California, Iowa, 
Kentucky, Minnesota, Nevada, New Mexico, North Carolina, Oregon, South 
Carolina, Utah, Virginia, Washington, and Wyoming

AGENCY: Occupational Safety and Health Administration (OSHA), U.S. 
Department of Labor.

ACTION: Final rule.

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SUMMARY: This notice provides further clarification as to the 
jurisdiction and enforcement responsibilities of the Occupational 
Safety and Health Administration and 14 of its approved State Plans at 
various Department of Energy (DOE) sites which are not subject to the 
Atomic Energy Act (AEA). OSHA's regulations in 29 CFR 1952 are amended 
to reflect this jurisdiction, as appropriate.

DATES: Effective Date: June 29, 2006.

FOR FURTHER INFORMATION CONTACT: For general information and press 
inquiries, contact Kevin Ropp, Director, Office of Communications, Room 
N-3647, OSHA, U.S. Department of Labor, 200 Constitution Avenue, NW., 
Washington, DC 20210; telephone (202) 693-1999. For technical 
inquiries, contact Barbara Bryant, Director, Office of State Programs, 
Room N-3700, OSHA, U.S. Department of Labor, 200 Constitution Avenue, 
NW., Washington, DC 20210; telephone (202) 693-2244. An electronic copy 
of this Federal Register notice is available on OSHA's website at 
www.osha.gov.

SUPPLEMENTARY INFORMATION: 

Background

    The U.S. Department of Labor (DOL) and the U.S. Department of 
Energy (DOE) previously clarified their regulatory authority over the 
occupational safety and health of private-sector contractor employees 
at a number of DOE government-owned or leased facilities that are not 
subject to the Atomic Energy Act (AEA). (65 FR 41492, July 5, 2000) 
Some of these facilities are either government-owned and government-
operated (GOGO) or government-owned and contractor-operated (GOCO).
    The Atomic Energy Act provides statutory authority to DOE to 
regulate occupational safety and health matters relating to private 
sector employees at facilities subject to the AEA. Section 4(b)(1) of 
the Occupational Safety and Health Act of 1970, 29 U.S.C. (the Act), 
Section 653(b)(1), precludes OSHA coverage of working conditions over 
which other federal agencies have exercised statutory authority to 
prescribe or enforce standards for occupational safety or health. A 
1992 Interagency Memorandum of Understanding provides that the 
Occupational Safety and Health Act shall not apply to government owned-
contractor operated (GOCO) sites or other facilities with private 
sector employees for which DOE, pursuant to the AEA, has exercised its 
authority to regulate occupational safety and health.
    By letter of June 18, 1999, and further clarified by letter on 
March 31, 2000, DOE provided OSHA with a list of DOE sites that were 
not covered by the AEA and requested OSHA's concurrence with DOE's 
views that the facilities and operations in question were subject to 
OSHA's jurisdiction. These sites are primarily involved in fossil fuel 
energy research and power marketing administration. OSHA responded by 
letter on July 13, 1999, agreeing with DOE that OSHA has jurisdiction 
over the working conditions of private sector employers and employees 
at such facilities.
    On July 5, 2000, OSHA published a notice in the Federal Register 
(65 FR 41492), listing these sites and stating that private sector 
employers and employees at these DOE facilities are subject to all 
standards, rules and requirements issued under the Occupational Safety 
and Health Act. The sites are:

Department of Energy (DOE) Non-Atomic Energy Act (AEA) Sites and 
Facilities

Western Area Power Administration Headquarters, P.O. Box 3402, Golden, 
CO 80401-0098, Covers all or part of the following States: AZ*, CA*, 
CO, IA*, KS, MN*, MT, NE, ND, NM*, NV*, SD, TX, UT*, WY*
Southwestern Power Administration, Headquarters, P.O. Box 1619, Tulsa, 
OK 74101, Covers all or part of the following States: AR, KS, LA, MO, 
OK, TX
Southeastern Power Administration, Headquarters, 2 South Public Square, 
Elberton, GA 30635, Covers all or part of the following States: AL, FL, 
GA, IL, KY*, MS, NC*, SC*, VA*, WV
Bonneville Power Administration, 905 NE 11th Ave., P.O. Box 3621,

[[Page 36989]]

Portland, OR 97208-3621, Covers all or part of the following States: 
CA*, ID, MT, NV*, OR*, UT*, WA*, WY*
National Energy Technology Laboratory (NETL), 3610 Collins Ferry Road, 
P.O. Box 880, Morgantown, WV 26507-0880
National Energy Technology Laboratory (NETL), 626 Cochrans Mill Road, 
Pittsburgh, PA 15236-0940
Strategic Petroleum Reserves (SPR), Project Office, 900 Commerce Road 
East, New Orleans, LA 70123
National Petroleum Technology Office, Williams Center Tower 1, 1 West 
Third St., Suite 1400, Tulsa, OK 74103
Albany Research Center, 1450 Queen Ave., SW, Albany, OR* 97321-2198
Naval Petroleum & Oil Shale Reserves in CO, UT*, & WY*, 907 N. Poplar 
St., Suite 150, Casper, WY 82601
Naval Petroleum Reserves in California, 28590 Highway 119, P.O. Box 11, 
Tupman, CA* 93276
    OSHA noted that a number of the non-AEA facilities are located in 
states which operate OSHA-approved state plans under Section 18 of the 
Occupational Safety and Health Act of 1970, 29 U.S.C 667 (noted with 
asterisk above), and which have primary authority for private sector 
occupational safety and health coverage in their states. However, 
pending a final determination, the state plan non-AEA sites were deemed 
``issues not covered by the state plan'' and thus subject to federal 
enforcement jurisdiction. Federal OSHA would exercise enforcement 
jurisdiction over private sector employers and employees at the non-AEA 
sites located in state plan states, until it was determined whether a 
state would exercise jurisdiction. These determinations have now been 
made and this document provides notice that the affected states will 
assume occupational safety and health regulatory responsibility for all 
except five of the non-AEA sites in their states.
    The following State Plans intend to exercise jurisdiction over 
private contractors performing work at these non-AEA facilities and 
operations located in their states, except that federal employees and 
employees of private sector companies responsible for operating an 
entire facility under contract to DOE (contractor-operated facility) 
remain subject to federal OSHA jurisdiction. (Under the provisions of 
the Act and various interpretations by the courts, states with OSHA-
approved state plans are precluded from exercising jurisdiction over 
federal employees or over federal instrumentalities such as government 
owned-contractor operated (GOCO) facilities.) To the extent that a 
state should be unable to exercise jurisdiction over other private 
contractors at these sites, for whatever reason, OSHA will assume 
responsibility for coverage.

Arizona--Western Area Power Administration \1\ (Phoenix, AZ, et al)
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    \1\ The Power Marketing Administrations operate in multiple 
states, with headquarters in Lakewood, Colorado (Western Area Power 
Administration), Portland, Oregon (Bonneville Power Administration), 
and Elberton, Georgia (Southeastern Power Administration). Power 
authority site locations in these state plan states are noted where 
available; in some states, Power Marketing Administration activity 
may be limited to power lines traversing the state with no site 
locations--but there may still be employee exposure to hazards 
during construction and maintenance operations.
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California--Western Area Power Administration, Bonneville Power 
Administration, Naval Petroleum Reserve (Tupman, CA)
Iowa--Western Area Power Administration
Kentucky--Southeastern Power Administration
Minnesota--Western Area Power Administration
Nevada--Western Area Power Administration, Bonneville Power 
Administration
New Mexico--Western Area Power Administration (except Elephant Butte)
North Carolina--Southeastern Power Administration
Oregon--Bonneville Power Administration (Portland, OR, et al)
South Carolina--Southeastern Power Administration
Utah--Western Area Power Administration, Bonneville Power 
Administration, activities at the site of the Naval Petroleum and Oil 
Shale Reserve in Utah where divested by the Department of Energy
Virginia--Southeastern Power Administration (except the Kerr-Philpott 
System)
Washington--Bonneville Power Administration (Vancouver, WA, et al) 
(except in controlled areas of the Hanford Reservation)
Wyoming--Western Area Power Administration, Bonneville Power 
Administration

    The following State Plans do not intend to exercise jurisdiction 
over private sector workers at the following non-AEA sites in their 
states. All employees at these DOE sites, both federal and private 
sector, remain subject to federal OSHA jurisdiction, so long as they 
remain facilities operated by the Department of Energy. If a site is 
divested by DOE, or otherwise transferred, private sector employees are 
subject to State Plan jurisdiction absent a further determination.

New Mexico--Western Area Power Administration site at Elephant Butte
Oregon--Albany Research Center in Albany, OR
Utah--Naval Petroleum and Oil Shale Reserve (if divested by DOE, 
coverage reverts to the state)
Virginia--Southeastern Power Administration's Kerr-Philpott System
Wyoming--Naval Petroleum and Oil Shale Reserve

Decision

    29 CFR Part 1953 sets forth the procedures by which the Assistant 
Secretary will review changes to State Plans approved in accordance 
with Section 18(c) of the Act and Part 1902. Upon review of the 14 
State Plan decisions to assert or decline jurisdiction, and in 
accordance with these procedures, OSHA hereby approves these actions 
and amends the subparts in 29 CFR Part 1952 for New Mexico (Western 
Area Power Administration at Elephant Butte), Oregon (Albany Research 
Center), Utah (Naval Petroleum and Oil Shale Reserve), Virginia 
(Southeastern Power Administration's Kerr-Philpott System) and Wyoming 
(Naval Petroleum and Oil Shale Reserve) to reflect the formal exclusion 
of these entities from the State Plan and continuation of federal 
jurisdiction over private sector contractor employees at these sites so 
long as they remain DOE sites not subject to the Atomic Energy Act. For 
all other listed facilities in states with OSHA-approved State Plans, 
this document provides notification to affected private sector 
employers and employees of these non-AEA sites that they will be 
subject to State Plan occupational safety and health jurisdiction like 
most other private sector employers in those States. Those States 
assuming jurisdiction over these private sector employers and employees 
will make available to them detailed information on the State's 
standards, regulations, procedures and practices, including differences 
from the Federal.

Public Participation

    Under Section 29 CFR 1953.2(c), the Assistant Secretary may 
prescribe alternative procedures to expedite the review process or for 
other good cause which may be consistent with applicable laws. As these 
changes in jurisdiction generally impose no new responsibilities or 
requirements on employers or employees, no opportunity for public 
comment is required.

[[Page 36990]]

Regulatory Flexibility Act

    OSHA certifies pursuant to the Regulatory Flexibility Act of 1980 
(5 U.S.C. 601 et seq.) that this action will not have a significant 
economic impact on a substantial number of small entities. The change 
from federal to state jurisdiction for private contractors at these DOE 
non-AEA sites would not place small contractors at these sites under 
any significant new or different requirements. No additional burden 
will be placed upon the state governments beyond the responsibilities 
already assumed as part of the approved state plans.

Federalism

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999), 
emphasizes consultation between federal agencies and the states and 
establishes specific review procedures the federal government must 
follow as it carries out policies which affect state or local 
governments. OSHA has included in the Supplementary Information section 
of today's notice a general explanation of the relationship between 
federal OSHA and the state plan states under the Occupational Safety 
and Health Act. Although it appears that the specific consultation 
procedures provided under Section 6 of Executive Order 13132 are not 
mandatory for state plan jurisdiction changes because they neither 
impose a burden upon the state nor involve preemption of any state law, 
OSHA has nonetheless consulted extensively with these states on their 
individual decisions on these issues. OSHA has reviewed the decisions 
approved today and believes they are consistent with the principles and 
criteria set forth in the Executive Order.
    This document was prepared under the direction of Edwin G. Foulke, 
Jr., Assistant Secretary of Labor for Occupational Safety and Health. 
It is issued under Section 18 of the Occupational Safety and Health Act 
of 1970, 84 Stat. 1608 (29 U.S.C. 667); 29 CFR Part 1902; and Secretary 
of Labor's Order No. 5-2002 (67 FR 65008, Oct. 22, 2002).

List of Subjects in 29 CFR Part 1952

    Intergovernmental relations, Law enforcement, Occupational safety 
and health, Occupational Safety and Health Administration.

    Signed at Washington, DC, this 30th day of May, 2006.
Edwin G. Foulke, Jr.,
Assistant Secretary.

0
Part 1952 of 29 CFR is hereby amended as follows:

PART 1952--[AMENDED]

0
1. The authority section for part 1952 continues to read as follows:

    Authority: Section 18 of the OSH Act (29 U.S.C. 667), 29 CFR 
part 1902, and Secretary of Labor's Order No. 5-2002 (67 FR 65008).

Subpart D--Oregon

0
2. Amend Sec.  1952.104 by revising the second sentence of paragraph 
(b) to read as follows:


Sec.  1952.104  Final approval determination.

* * * * *
    (b) * * * The plan does not cover private sector establishments on 
Indian reservations and tribal trust lands, including tribal and 
Indian-owned enterprises; employment at Crater Lake National Park; 
employment at the U.S. Department of Energy's Albany Research Center 
(ARC); Federal agencies; the U.S. Postal Service and its contractors; 
contractors on U.S. military reservations, except those working on U.S. 
Army Corps of Engineers dam construction projects; and private sector 
maritime employment on or adjacent to navigable waters, including 
shipyard operations and marine terminals.
* * * * *

0
3. Amend Sec.  1952.105 by redesignating paragraph (b)(1)(v) as 
(b)(1)(vi) and adding a new paragraph (b)(1)(v), to read as follows:


Sec.  1952.105  Level of Federal enforcement.

* * * * *
    (b)(1) * * *
    (v) Enforcement of occupational safety and health standards with 
regard to employment at the U.S. Department of Energy's Albany Research 
Center (ARC);
* * * * *

Subpart E--Utah

0
4. Amend Sec.  1952.114 by revising the second sentence of paragraph 
(b) to read as follows:


Sec.  1952.114  Final approval determination.

* * * * *
    (b) * * * The plan does not cover private sector maritime 
employment; employment on Hill Air Force Base; employment at the U.S. 
Department of Energy's Naval Petroleum and Oil Shale Reserve, to the 
extent that it remains a U.S. DOE facility; Federal government 
employers and employees; the U.S. Postal Service (USPS), including USPS 
employees, and contract employees and contractor-operated facilities 
engaged in USPS mail operations; the enforcement of the field 
sanitation standard, 29 CFR 1928.110, and the enforcement of the 
temporary labor camps standard, 29 CFR 1910.142, with respect to any 
agricultural establishment where employees are engaged in 
``agricultural employment'' within the meaning of the Migrant and 
Seasonal Agricultural Worker Protection Act, 29 U.S.C. 1802(3), 
regardless of the number of employees, including employees engaged in 
hand packing of produce into containers, whether done on the ground, on 
a moving machine, or in a temporary packing shed, except that Utah 
retains enforcement responsibility over agricultural temporary labor 
camps for employees engaged in egg, poultry, or red meat production, or 
the post-harvest processing of agricultural or horticultural 
commodities.
* * * * *

0
5. Amend Sec.  1952.115 by revising the fifth sentence of paragraph (b) 
to read as follows:


Sec.  1952.115  Level of Federal enforcement.

* * * * *
    (b) * * * Federal jurisdiction is also retained with regard to: all 
employment on the Hill Air Force Base; all employment at the U.S. 
Department of Energy's Naval Petroleum and Oil Shale Reserve, to the 
extent that it remains a U.S. DOE facility; Federal government 
employers and employees; and the U.S. Postal Service (USPS), including 
USPS employees, and contract employees and contractor-operated 
facilities engaged in USPS mail operations. * * *
* * * * *

Subpart BB--Wyoming

0
6. Amend Sec.  1952.344 by revising the second sentence of paragraph 
(b) to read as follows:


Sec.  1952.344  Final approval determination.

* * * * *
    (b) * * * The plan does not cover private sector maritime 
employment; employment on the Warren Air Force Base; employment at the 
U.S. Department of Energy's Naval Petroleum and Oil Shale Reserve; 
Federal government employers and employees; the U.S. Postal Service 
(USPS), including USPS employees, and contract employees and 
contractor-operated facilities engaged in USPS mail operations; the 
enforcement of the field sanitation standard, 29 CFR 1928.110, and the 
enforcement of the temporary labor camps standard, 29 CFR 1910.142, 
with respect to any agricultural establishment where employees are 
engaged in ``agricultural employment'' within the meaning of the 
Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. 
1802(3), regardless of the number of employees, including

[[Page 36991]]

employees engaged in hand packing of produce into containers, whether 
done on the ground, on a moving machine, or in a temporary packing 
shed, except that Wyoming retains enforcement responsibility over 
agricultural temporary labor camps for employees engaged in egg, 
poultry, or red meat production, or the post-harvest processing of 
agricultural or horticultural commodities.
* * * * *

0
7. Amend Sec.  1952.345 by revising the last sentence of paragraph 
(b)(1) to read as follows:


Sec.  1952.345  Level of Federal enforcement.

* * * * *
    (b)(1) * * * Federal jurisdiction is also retained for employment 
at Warren Air Force Base; employment at the U.S. Department of Energy's 
Naval Petroleum and Oil Shale Reserve; Federal government employers and 
employees; and the U.S. Postal Service (USPS), including USPS 
employees, and contract employees and contractor-operated facilities 
engaged in USPS mail operations.
* * * * *

Subpart DD--New Mexico

0
8. Amend Sec.  1952.365 by revising paragraph (a)(9) to read as 
follows:


Sec.  1952.365  Level of Federal enforcement.

* * * * *
    (a) * * *
    (9) Enforcement of occupational safety and health standards with 
regard to employment at the U.S. Department of Energy's Western Area 
Power Administration site at Elephant Butte; Federal government 
employers and employees; and the U.S. Postal Service (USPS), including 
USPS employees and contract employees and contractor-operated 
facilities engaged in USPS mail operations; and
* * * * *

Subpart EE--Virginia

0
9. Amend Sec.  1952.374 by revising the second sentence of paragraph 
(b) to read as follows:


Sec.  1952.374  Final approval determination.

* * * * *
    (b) * * * The plan does not cover private sector maritime 
employment; worksites located within Federal military facilities as 
well as on other Federal enclaves where civil jurisdiction has been 
ceded by the State to the Federal government; employment at the U.S. 
Department of Energy's Southeastern Power Administration Kerr-Philpott 
System; Federal government employers and employees; and the U.S. Postal 
Service (USPS), including USPS employees, and contract employees and 
contractor-operated facilities engaged in USPS mail operations.
* * * * *

0
10. Amend Sec.  1952.375 by revising the last sentence of paragraph 
(b)(1) to read as follows:


Sec.  1952.375  Level of Federal enforcement.

* * * * *
    (b)(1) * * * Federal jurisdiction is also retained with respect to 
employment at the U.S. Department of Energy's Southeastern Power 
Administration Kerr-Philpott System; Federal government employers and 
employees; and the U.S. Postal Service (USPS), including USPS 
employees, and contract employees and contractor-operated facilities 
engaged in USPS mail operations.
* * * * *
[FR Doc. 06-5789 Filed 6-28-06; 8:45 am]
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