[Federal Register Volume 65, Number 129 (Wednesday, July 5, 2000)]
[Notices]
[Pages 41492-41493]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-16862]


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DEPARTMENT OF LABOR

Occupation Safety and Health Administration


Occupational Safety and Health of Contractor Employees at Energy 
Department Site; Jurisdiction and Enforcement Responsibilities; 
Clarification

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Notice.

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SUMMARY: This notice is to advise the public of a recent clarification 
of the jurisdiction and enforcement responsibilities of the 
Occupational Safety and Health Administration (OSHA) at various 
Department of Energy (DOE) sites which are not subject to the Atomic 
Energy Act (AEA).

EFFECTIVE DATE: This clarification becomes effective on July 5, 2000.

FOR FURTHER INFORMATION CONTACT: Mike Turner, Office of Technical 
Programs and Coordination Activities, Directorate of Technical Support, 
U.S. Department of Labor, Occupational Safety and Health 
Administration, Room N-3653, 200 Constitution Avenue, NW, Washington, 
DC 20210. Telephone (202) 693-2110.

SUPPLEMENTARY INFORMATION: The U.S. Department of Labor (DOL) and the 
U.S. Department of Energy (DOE) have sought to clarify the regulatory 
authority over the occupational safety and health of contractor 
employees at a number of DOE government-owned or leased facilities that 
are not subject to the Atomic Energy Act (AEA) which provides statutory 
authority for DOE to regulate occupational safety and health matters 
relating to private sector employees at facilities subject to the AEA.
    Section 4(b)(1) of the Occupational Safety and Health Act of 1970, 
29 U.S.C., Sec. 653(b)(1), precludes OSHA coverage of working 
conditions over which other Federal agencies have exercised statutory 
authority to prescribe or enforce standards for occupational safety or 
health. A 1992 interagency Memorandum of Understanding acknowledges 
DOE's extensive regulation of contractor health and safety through 
safety orders which require contractor compliance with all OSHA 
standards as well as additional requirements prescribed by DOE. The 
agreement concludes with provisions stating that the Occupational 
Safety and Health Act shall not apply to Government Owned-Contractor 
Operated (GOCO) sites or other facilities for which DOE, pursuant to 
the AEA, has exercised its authority to regulate occupational safety 
and health.
    By letter of June 18, 1999, DOE, through David Michaels, Assistant 
Secretary Environment, Safety and Health, provided OSHA with a list of 
DOE sites that were not covered by the AEA and requested OSHA's 
concurrence with DOE's views that the sites in question were subject to 
OSHA's jurisdiction. The letter states, in pertinent part:

    Enclosed is the complete list of DOE facilities and activities 
that do not involve activities authorized under the AEA, and are 
therefore under OSHA jurisdiction. Our staffs have concluded that a 
simple letter of affirmation and acknowledgment of receipt of this 
list will suffice to fully clarify that OSHA and the State Plan 
states, as appropriate, do have a valid jurisdiction over these 
facilities.

    OSHA responded by letter of July 13, 1999, from Charles N. 
Jeffress, Assistant Secretary for Occupational Safety and Health, 
agreeing with DOE that OSHA has jurisdiction over the working 
conditions of private sector employers and employees at the noted 
facilities. Subsequently, on March 21, 2000, DOE provided OSHA with a 
validated list of ``. . . DOE facilities and activities currently 
having contractors on site for which DOE has not claimed 4(b)(1) 
exemption status and are under OSHA jurisdiction.'' (See Exhibit 1.)
    The OSHA acknowledgment letter states, in pertinent part:

    OSHA accepts your conclusion that DOE is not exercising AEA 
authority at these sites and accordingly we generally concur that 
OSHA has jurisdiction over the working conditions of private sector 
employers and employees at these facilities. (OSHA would not, of 
course, have authority for working conditions addressed by other, 
non-DOE occupational safety or health requirements.) The extent to 
which OSHA's authority at non-AEA facilities may be preempted by 
rules of other agencies would have to be determined on a case-by-
case basis, in consultation with the concerned agency, applying the 
principles of 4(b)(1) law. Although not explicitly stated in your 
letter, it is also our understanding in making this determination 
that DOE is not exercising safety and health enforcement authority 
at these sites under any other statute in a manner that would 
preempt OSHA's jurisdiction under section 4(b)(1) . . . (As noted in 
your letter, OSHA has jurisdiction for federal employees at these 
sites, in accordance with Executive Order 12296 and 29 CFR 1960.)

    Accordingly, OSHA is giving public notice that private sector 
employers and employees at the DOE facilities listed in Exhibit 1 are 
subject to all standards, rules and requirements issued under the 
Occupational Safety and Health Act.
    A number of the non-AEA sites listed in Exhibit 1 are located in 
States which operate OSHA-approved State Plans. Until a final 
determination is made, such sites will be deemed ``issues not covered 
by the State plan'' and thus subject to Federal enforcement 
jurisdiction. OSHA will work with its State partners in determining 
whether State plans or Federal jurisdiction is appropriate for 
individual facilities and will provide further formal notification, as 
appropriate. In the interim, Federal OSHA will exercise enforcement 
jurisdiction over those sites listed in Exhibit 1, which are located in 
State Plan States, until it is determined whether the State is able to 
exercise jurisdiction.

    Signed at Washington, DC this 23rd day of June, 2000.
Charles N. Jeffress,
Assistant Secretary.

Exhibit 1

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

Western Area Power Administration Headquarters, P.O. Box 3402, 
Golden, CO 80401-0098, Covers all or part of the following States: 
AZ, CA, CO, IA, KS, MN, MT, NE, ND, NM, NV, SD, TX, UT, WY
Southwestern Power Administration, Headquarters, P.O. Box 1619, 
Tulsa, OK

[[Page 41493]]

74101, Covers all or part of the following States: AR, KS, LA, MO, 
OK, TX
Southeastern Power Administration, Headquarters, 2 South Public 
Square, Elberton, GA 30635, Covers all or part of the following 
States: AL, FL, GA, IL, KY, MS, NC, SC, VA, WV
Bonneville Power Administration, 905 NE 11th Ave., P.O. Box 3621, 
Portland, OR 97208-3621, Covers all or part of the following States: 
CA, ID, MT, NV, OR, UT, WA, WY
National Energy Technology Laboratory (NETL), 3610 Collins Ferry 
Road, P.O. Box 880, Morgantown, WV 26507-0880
National Energy Technology Laboratory (NETL), 626 Cochrans Mill 
Road, Pittsburgh, PA 15236-0940
Strategic Petroleum Reserves (SPR), Project Office, 900 Commerce 
Road East, New Orleans, LA 70123
National Petroleum Technology Office, Williams Center Tower 1, 1 
West Third St., Suite 1400, Tulsa, OK 74103
Albany Research Center, 1450 Queen Ave., SW, Albany, OR 97321-2198
Naval Petroleum & Oil Shale Reserves in CO, UT, & WY., 907 N. Poplar 
St., Suite 150, Casper, WY 82601
Naval Petroleum Reserves in California, 28590 Highway 119, P.O. Box 
11, Tupman, CA 93276

[FR Doc. 00-16862 Filed 7-3-00; 8:45 am]
BILLING CODE 4510-26-P