# Chronic Beryllium Disease Prevention Program; Worker Safety and Health Program

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URL: https://www.frixlaw.com/law-library/documents/fr%3A06-964

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** February 9, 2006
- **Citation:** 71 FR 6858

## Text

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.

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.

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

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

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

DOE order 440.1A requirements
Corresponding 10 CFR 851 provisions

1. Objective
.1 Purpose

3.b. Applicability
.1 Scope

3.c. Exclusions
.2 Exclusions

Attachment 2—Contractor Requirements Document

The contractor shall comply with the requirements below; however, 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
.24 Functional areas.

1. Implement a written worker protection program that:
.11(a), .12 Preparation and submission of worker safety and health program Implementation.

1.a. Provide a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees; and
.10(a)(1) General requirements.

1.b. Integrates all requirements contained in this attachment and other related site-specific worker protection activities
.11(a)(3) (ii) Preparation and submission of worker safety and health program.

2. Establish written policy, goals, and objectives for the worker protection program
.20(a)(1) Management responsibilities.

3. Use qualified worker protection staff to direct and manage the worker protection program
.20(a)(2) Management responsibilities.

4. Assign worker protection responsibilities, evaluate personnel performance, and hold personnel accountable for worker protection performance
.20(a)(3) Management responsibilities.

5. Encourage employee involvement in the development of program goals, objective, and performance measures and in the identification and control of hazards in the workplace
.20(a)(4) Management responsibilities.

6. Provide workers the right, without reprisal, to:
.20(a)(6) Management responsibilities.

6.a. Accompany DOE worker protection personnel during workplace inspections;
.20(b)(5) Worker rights.

6.b. Participate in activities provided for herein on official time;
.20(b)(1) Worker rights.

6.c. Express concerns related to worker protection;
.20(b)(7) Worker rights.

6.d. Decline to perform an assigned task because of a reasonable belief that, under the circumstances, the task poses an imminent risk of death or serious bodily harm to 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;
.20(b)(8) Worker rights.

6e. Have access to DOE worker protection publications, DOE-prescribed standards, and the organization's own protection standards or procedures applicable to the workplace;
.20(b)(2) (i)-(ii) Worker rights.

6.f. Observe monitoring or measuring of hazardous agents and have access to the results of exposure monitoring;
.20(b)(4) Worker rights.

6.g. Be notified when monitoring results indicate they were overexposed to hazardous materials; and
.20(b)(3) Worker rights

6.h. Receive results of inspections and accident investigations upon request
.20(b)(6) Worker rights

7. Implement procedures to allow workers, through their supervisors, to 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
.20(a)(9) Management responsibilities.

8. Inform workers of their rights and responsibilities by appropriate means, including posting the appropriate DOE Worker Protection Poster in the workplace where it is accessible to all workers
.20(a)(10) Management responsibilities.

9. Identify existing and potential workplace hazards and evaluate the risk of associated worker injury and illness
.21(a) Hazard identification and assessment.

9.a. Analyze or review: (1) Designs for new facilities and modifications to existing facilities and equipment; (2) Operations and procedures; and (3) Equipment, product and service needs
.21(a)(4)-(5) Hazard identification and assessment.

9.b. Assess worker exposure to chemical, physical, biological, or ergonomic hazards through appropriate workplace monitoring (including personal, area, wipe, and bulk sampling); biological monitoring; and observation. 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.]
.21(a)(1)-(3) Hazard identification and assessment [Moved to guidance document.]

9.c. Evaluate workplaces and activities (accomplished routinely by workers, supervisors, and managers and periodically by qualified worker protection professionals)
.21(a)(5) Hazard identification and assessment.

9.d. Report and investigate accidents, injuries and illnesses and analyze related data for trends and lessons learned (reference DOE Order 210.1)
.26(d) Recordkeeping and reporting.

10. Implement a hazard control prevention/abatement process to ensure that all identified hazards are managed through final abatement or control
.22(a) Hazard prevention and abatement.

10.a. For hazards identified either in the facility design or during the development of procedures, control shall be incorporated in the appropriate facility design or procedure
.22(a)(1) Hazard prevention and abatement.

10.b. For existing hazards identified in the workplace, abatement actions prioritized according to risk to the worker shall be promptly implemented, interim protective measures shall be implemented pending final abatement, and workers shall be protected immediately from imminent danger conditions
.22(a)(2) (i), (ii), & (iii) Hazard prevention and abatement.

10.c. Hazards shall be addressed when selecting or purchasing equipment, products, and services
.22(c) Hazard prevention and abatement.

10.d. Hazard control methods shall be selected based on the following hierarchy: (1) Engineering control (2) Work practices and administrative controls that limit worker exposure (3) Personal protective equipment
.22(b)(2)-(4) Hazard prevention and abatement.

11. Provide workers, supervisors, managers, visitors, and worker protection professionals with worker protection training
.25 Information and training.

12. Comply with the following worker protection requirements:
.23(a) Safety and health standards.

12.a. Title 29 Code of Federal Regulations (CFR), Part 1910, “Occupational Safety and Health Standards”
.23(a)(3) Safety and health standards.

12.b. Title 29 CFR, Part 1915, “Shipyard Employment”
.23(a)(4) Safety and health standards.

12.c. Title 29 CFR, Part 1917, “Marine Terminals”
.23(a)(5) Safety and health standards.

12.d. Title 29 CFR, Part 1918, “Safety and Health Regulations for Longshoring”
.23(a)(6) Safety and health standards.

12.e. Title 29 CFR, Part 1926, “Safety and Health Regulations for Construction”
.23(a)(7) Safety and health standards.

12.f. Title 29 CFR, Part 1928, “Occupational Safety and Health Standards for Agriculture”
.23(a)(8) Safety and health standards.

12.g. American Conference of Governmental Industrial Hygienists (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
.23(a)(9) Safety and health standards.

12.h. American National Standards Institute (ANSI) Z136.1, “Safe Use of Lasers”
.23(a)(11) Safety and health standards.

12.i. ANSI Z88.2, “American National Standard Practices for Respiratory Protection”
.23(a)(10) Safety and health standards.

12.j. ANSI Z49.1, “Safety in Welding, Cutting and Allied Processes,” sections 4.3 and E4.3 (of the 1994 edition or equivalent sections of subsequent editions)
.23(a)(12) Safety and health standards.

12.k. National Fire Protection Association (NFPA) 70, “National Electrical Codes”
.23(a)(14) Safety and health standards.

12.l. NFPA 70E, “Electrical Safety in the Workplace”
.23(a)(15) Safety and health standards.

13. Ensure that subcontractors performing work on DOE-owned or -leased facilities comply with this Contractor Requirements Document and the contractor's own site worker protection standards (where 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) Controls
Section moved to DOE Order 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)

Final rule section
Corresponding supplemental proposal section

PART 850—Chronic Beryllium Disease Prevention Program

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

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

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

PART 851—Worker Safety and Health Program

Subpart A—General Provisions

Subpart A—General Provisions

851.1 Scope and purpose

851.1 Scope and exclusions.
851.2 Purpose.

851.2 Exclusions
851.1 Scope and exclusions.

851.3 Definitions
851.3 Definitions.

851.4 Compliance Order
851.5 Compliance Order.

851.5 Enforcement
851.9 Enforcement.

851.6 Petitions for generally applicable rulemaking
851.6 Interpretations.

851.7 Requests for a binding interpretive ruling
851.6 Interpretations.

851.8 Informal requests for information
851.6 Interpretations.

Subpart B—Program Requirements

Subpart A—General Provisions

Subpart B—Worker Safety and Health Program

851.10 General requirements

851.4 General rule.
851.100 Worker safety and health program.

851.11 Development and approval of the worker safety and health program
851.101 Approval and 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 Requirements

Subpart A—General Provisions

Subpart B—Worker Safety and Health Program

Subpart C—Safety and Health Requirements

851.20 Management responsibilities and worker rights and responsibilities
851.10 Worker rights.

851.21 Hazard identification and assessment
851.100 Worker safety and health program.

851.22 Hazard prevention and abatement
851.100 Worker safety and health program.

851.23 Workplace safety and health standards

851.200 Worker safety and health requirements.
851.201 Worker safety and health standards.

851.24 Functional areas
851.200 Worker safety and health requirements.

851.25 Training and information
851.100 Worker safety and health program.

851.26 Recordkeeping and reporting
851.7 Information and records.

851.27 Incorporation by reference

Subpart D—Variances

Subpart D—Exemption Relief

851.30 Consideration of variances
851.300 Exemptions.

851.31 Variance process
851.301 Exemption criteria.

851.32 Action on variance request
851.300 Exemptions.

851.33 Terms and conditions
851.302 Terms and conditions.

851.34 Requests for conferences

Subpart E—Enforcement Process

Subpart E—Enforcement Process

851.40 Investigations and inspections
851.400 Investigations and inspections.

851.41 Settlement

851.42 Preliminary notice of violation
851.402 Preliminary notice of violation.

851.43 Final notice of violation
851.403 Final notice of violation.

851.44 Administrative appeal
851.404 Administrative appeal.

851.45 Direction to NNSA contractors
851.405 Direction to NNSA contractors.

APPENDIX A TO PART 851—WORKER SAFETY AND HEALTH FUNCTIONAL AREAS

Subpart C—Safety and Health 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 STATEMENT OF ENFORCEMENT POLICY

APPENDIX A TO PART 851—GENERAL 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.

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

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

“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

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.

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

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

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,

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

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

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

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 c

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A06-964. Public record. Not legal advice.