6858 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

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. 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6859 

On March 23, 2005, DOE held a 

televideo forum to provide DOE 

contractors, contractor employees, and 

their representatives with the 

opportunity to ask questions and receive 

clarification on the provisions of the 

supplemental proposed rule. The public 

comment period for the supplemental 

proposal ended on April 26, 2005. 

During this period, DOE received 62 

comment letters from private 

individuals, DOE contractors, other 

Federal agencies, and trade associations 

in response to the supplemental 

proposal. In addition, public hearings 

were held on March 29 and 30, 2005, in 

Washington, DC. Responding to a 

request from the Paper, AlliedIndustrial, 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 riskbased 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 


cprice-sewell on PROD1PC66 with RULES2
6860 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

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 nonmandatory 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 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6861 

concerns of the commenters with the 

supplemental notice of proposed 

rulemaking published in the Federal 

Register on January 26, 2005 (70 FR 

3812). The principal changes are as 

follows: 

(1) The final rule codifies key worker 

safety and health standards from DOE 

Order 440.1A with which contractors 

must comply. 

(2) The final rule establishes a formal 

variance process that requires approval 

by the Under Secretary with line 

management responsibility for the 

contractor that is requesting the 

variance, after considering the 

recommendations of the Assistant 

Secretary for Environment Safety and 

Health. The rule adds detailed 

procedures in (Subpart D) whereby a 

contractor can obtain a variance from a 

specific worker safety and health 

standard or a portion of the standard. 

These procedures will ensure that 

variances are only granted where 

warranted and where an equivalent 

level of protection is provided through 

other means. 

(3) The final rule establishes updates 

to functional areas. These updates are 

intended to ensure the function areas 

more closely reflect the requirements of 

DOE Order 440.1A. 

(4) The final rule recognizes the value 

of a central technical authority and the 

importance of senior DOE management 

involvement. The Assistant Secretary 

for Environment, Safety and Health has 

played a central role in the development 

of the final rule and will continue to 

play a central role in its implementation 

and enforcement. In addition to 

providing technical guidance and 

assistance, the Assistant Secretary is 

responsible for recommending to the 

Under Secretary whether to grant or 

deny a variance. The Office of PriceAnderson 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. 


cprice-sewell on PROD1PC66 with RULES2
6862 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

TABLE 1.—CROSSWALK OF DOE ORDER 4401.1A REQUIREMENTS AND 10 CFR 851 FINAL RULE REQUIREMENTS—

Continued 

DOE order 440.1A requirements Corresponding 10 CFR 851 provisions 

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. 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6863 

TABLE 1.—CROSSWALK OF DOE ORDER 4401.1A REQUIREMENTS AND 10 CFR 851 FINAL RULE REQUIREMENTS—

Continued 

DOE order 440.1A requirements Corresponding 10 CFR 851 provisions 

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. 


cprice-sewell on PROD1PC66 with RULES2
6864 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

TABLE 2.—COMPARISON OF FINAL 10 CFR 851 RULE SECTIONS WITH THE SUPPLEMENTAL NOTICE OF PROPOSED

RULEMAKING (SNOPR)—Continued 

Final rule section Corresponding supplemental proposal section 

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 nonsubstantive changes, such as 

renumbering of paragraphs and minor 

changes clarifying the meanings of rule 

provisions are not discussed. 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6865 

DOE has determined that the 

requirements set forth in this rule are 

those which are necessary to provide a 

safe and healthful workplace for DOE 

contractors and their workers. 

The majority of the comments 

received during the public comment 

period addressed specific provisions or 

subparts (e.g., scope and exclusions, 

enforcement process, program 

requirements, exemption process, and 

consensus standards) of the 

supplemental proposed rule. Each of 

these comments is discussed in detail 

below in the discussion of the 

corresponding section of the rule. 

Several commenters, however, 

expressed more general concerns 

regarding the entire proposed rule. For 

instance, a few commenters (Exs. 20, 27, 

48) expressed concern regarding a 

perceived lack of detail in the proposed 

rule. One of these commenter (Ex. 20) 

felt that terms such as ‘‘reasonable,’’

‘‘any,’’ ‘‘all,’’ ‘‘significant,’’ ‘‘adequate,’’

‘‘near miss,’’ ‘‘potential,’’

‘‘comprehensive,’’ and ‘‘general’’ used 

throughout the rule were too subjective 

to ensure consistency in contractor 

programs and enforcement. Another 

commenter (Exs. 48) believed that the 

proposed rule was not sufficiently 

developed and many processes and 

required guidance materials have either 

not yet been developed or have not been 

adequately described. This commenter 

also felt that the proposed regulation as 

currently written would represent a 

shift in safety emphasis from the 

positive influence, as described by the 

Integrated Safety Management System 

(ISMS), to a negative, enforcementbased 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), PriceAnderson 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 


cprice-sewell on PROD1PC66 with RULES2
6866 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

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 multiemployer 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 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6867 

‘‘ensure’’ that the workplace is ‘‘free 

from’’ recognized hazards. The 

commenters expressed concern that the 

phrase ‘‘free from recognized hazards’’

differed from ‘‘adequate protection,’’

and favored use of the term ‘‘reasonable 

assurance’’ as an appropriate and 

achievable standard. DOE notes, the 

reference to ‘‘adequately protected’’ is to 

emphasize that the rule is intended to 

fulfill DOE’s responsibilities under the 

AEA. The reference to ‘‘reasonable 

assurance’’ is to identify the standard to 

be achieved. In revising the rule, DOE 

has moved these references from the 

section on purpose to the section on the 

general rule and specifically to the 

subsection on the worker safety and 

health program. 

One commenter (Ex. 16) noted that 

the phrase ‘‘a contractor responsible for 

a covered workplace,’’ which occurs in 

several proposed rule sections, could 

result in confusion on sites where DOE 

uses multiple contractors. The 

commenter recommended replacing the 

phrase with the following language, ‘‘a 

contractor responsible for activities in a 

covered workplace.’’ DOE acknowledges 

the commenter’s concern. The purpose 

section is revised in the final rule and 

no longer makes reference to ‘‘a 

contractor responsible for a covered 

workplace.’’ DOE also notes that 

applicability of the rule is defined under 

section 851.1(a), which clarifies that the 

final rule applies to the conduct of 

contractor activities at DOE sites. 

Two other commenters (Exs. 39, 49) 

also expressed concern about the 

reference in supplemental proposed rule 

section 851.2(a) to a ‘‘covered 

workplace.’’ The commenters noted that 

the term was not defined, leaving 

readers to assume that it refers to DOE 

facilities not excluded from the scope of 

the rule. One of the commenters (Ex. 49) 

suggested replacing the term ‘‘covered 

workplace’’ with ‘‘DOE site’’ since the 

supplemental proposed rule did not 

include a definition for ‘‘covered 

workplace.’’ DOE has responded to 

these comments by including a 

definition of the term ‘‘covered 

workplace’’ in final rule section 851.3. 

One commenter (Ex. 27) pointed out 

that while supplemental proposed rule 

section 851.2(a) made no distinction in 

the severity of hazards covered by the 

rule, supplemental proposed rule 

section 851.4 included references to 

both ‘‘hazards causing or likely to cause 

serious bodily harm’’ and ‘‘adequate 

protection from hazards identified in 

the workplace.’’ As noted previously, 

the rule is intended to fulfill DOE’s 

responsibility under the AEA to ensure 

adequate protection from all workplace 

hazards. The rule also is intended to 

achieve the objectives in the OSHA Act 

and DOE Order 440.1 to have 

workplaces free from hazards causing or 

likely to cause serious bodily harm or 

death. DOE views these objectives as 

complementary and has rewritten the 

general rule to clearly identify both 

objectives. 

Section 851.1(b)(2) clarifies that the 

rule establishes appropriate provisions 

for investigating the nature and extent of 

a violation of the requirements, for 

determining whether a violation of a 

requirement has occurred, and for 

imposing an appropriate remedy. DOE 

received no comments on the 

corresponding provision of the 

supplemental proposed rule during the 

public comment period. 

Section 851.2—Exclusions 

As in the supplemental proposal, 

section 851.2 continues to emphasize 

that these regulations apply to activities 

performed by DOE contractors at DOE 

sites. Two commenters (Exs.13, 39) 

sought clarification that transportation 

was not covered under this rule. As 

discussed previously, ‘‘scope’’ section 

(851.1) of the final rule has been 

modified to make it clear that 

transportation to or from a DOE site is 

not covered by the rule. 

Section 4(b)(1) of the Occupational 

Safety and Health (OSH) Act (29 U.S.C. 

651 et seq.) provides that OSHA 

regulations do not apply where another 

federal agency exercises its statutory 

authority to prescribe safety and health 

standards and requirements. DOE 

currently exercises its statutory 

authority broadly throughout the DOE 

complex to provide safe and healthful 

workplaces. In a few cases, however, 

DOE has elected not to exercise its 

authority and to defer to regulation by 

OSHA under the OSH Act. Final rule 

section 851.2(a)(1) continues the status 

quo by excluding from coverage those 

facilities regulated by OSHA. The 

OSHA-regulated facilities are: Western 

Area Power Administration; 

Southwestern Power Administration; 

Southeastern Power Administration; 

Bonneville Power Administration; 

National Energy Technology Laboratory 

(NETL), Morgantown, West Virginia; 

National Energy Technology Laboratory 

(NETL), Pittsburgh, Pennsylvania; 

Strategic Petroleum Reserve (SPR); 

National Petroleum Technology Office; 

Albany Research Center; Naval 

Petroleum and Oil Shale Reserves in 

Colorado, Utah, & Wyoming; and Naval 

Petroleum Reserves in California. See 65 

FR 41492 (July 5, 2000). Work 

performed on such sites for DOE by 

DOE contractors, however, would be 

subject to the applicable contract 

provisions outlined in the specified 

contract. 

DOE received numerous comments on 

the exclusion clause for work conducted 

at OSHA-regulated DOE sites. Several 

commenters (Exs. 15, 16, 25, 29, 42, 49) 

proposed that facilities transferred to 

OSHA jurisdiction in the future should 

also be covered under the OSHA 

exclusion of the rule. DOE 

acknowledges the commenters 

recommendation and has reworded this 

provision in the final rule to clarify that 

the rule does not apply to work at a DOE 

site that is regulated by OSHA (i.e., as 

soon as a site is transferred to OSHA, 

work on that site no longer falls within 

the scope of the rule). 

One commenter (Ex. 5) questioned the 

appropriateness of the OSHA exclusion 

and pointed out that the exclusion of 

contractors regulated by OSHA was 

‘‘inherently contradictory,’’ and asserted 

that ‘‘DOE’s subcontractors have 

flowdown of PAAA liability protection 

when they need to work in a nuclear 

facility. Additionally DOE 

subcontractors are the responsibility of 

the prime contractor (per contract) but 

maintain their own OSHA 300 log 

because they are required to comply 

with OSHA regulations (per the 

industry in which they work, not 

because they are working at a DOE 

site).’’ DOE disagrees. OSHA’s 

jurisdiction over subcontractor work on 

a DOE site is not based on the other 

types of workplaces or the industry in 

which the subcontractor works. Rather, 

OSHA has jurisdiction only if DOE 

declines to exercise its statutory 

authority. 

Two commenters (Exs. 36, 29) sought 

clarification on whether privatelyowned 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 


cprice-sewell on PROD1PC66 with RULES2
6868 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

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. 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6869 

Terms and definitions deleted. In 

response to public comment, the 

following definitions in the 

supplemental notice are deleted in the 

final rule: ‘‘Activity-level hazard 

analysis,’’ ‘‘hazard control,’’ ‘‘Site 

Manager,’’ ‘‘workplace safety and health 

programmatic requirement,’’

‘‘workplace safety and health 

requirement,’’ and ‘‘workplace safety 

and health standard.’’ The deletions are 

explained in the section-by-section 

discussion of the rule provisions in 

which the terms were previously used. 

Section 851.3 defines key terms using 

traditional occupational safety and 

health and Departmental terminology, 

as well as terminology used by the 

OSHA in its regulations and 

interpretations, in establishing and 

clarifying the provisions of this rule. 

The use of such terminology is 

consistent with DOE’s increased 

emphasis on safety and health 

compliance through the use of accepted 

occupational safety and health 

requirements and procedures. The 

following discussion defines and 

explains each of the terms in the rule. 

Although some of these terms are 

commonly used, DOE believes these 

definitions will help ensure that their 

meaning as used in the context of the 

rule is clear. Section 851.3(a) presents 

definitions of terms as used in this part. 

AEA is the Atomic Energy Act of 

1954. DOE did not receive any 

comments on this proposed definition 

during the public comment period. 

Affected worker is an employee who 

would be affected by the granting or 

denial of a variance, or any authorized 

representative of the employee, such as 

a collective bargaining agent. DOE 

added this definition to the final rule to 

assist in clarifying worker rights 

associated with the variance process. 

A closure facility is a facility that is 

non-operational and is, or is expected to 

be, permanently closed and/or 

demolished, or title to which is 

expected to be transferred to another 

entity for reuse. DOE added this 

definition to the final rule to assist in 

clarifying which facilities qualify for the 

flexibility provisions established in final 

rule section 851.21(b). 

A closure facility hazard is a 

workplace hazard within a closure 

facility covered by a requirement of 

final rule section 851.23 for which strict 

technical compliance would require 

costly and extensive structural/ 

engineering modifications to be in 

compliance. DOE added this definition 

to the final rule to assist in clarifying the 

types of hazards that qualify for the 

flexibility provisions established in final 

rule section 851.21(b). 

The Cognizant Secretarial Officer 

(CSO) is the Assistant Secretary, Deputy 

Administrator, Program Office Director, 

or equivalent DOE official who has 

primary line management responsibility 

for a contractor, or any other official to 

whom the CSO delegates in writing a 

particular function under this part. One 

commenter (Ex. 32) sought clarification 

of the definition for the term Cognizant 

Secretarial Officer due to the 

inconsistency between the proposed 

rule definition of a CSO having 

‘‘primary line management 

responsibility for a contractor’’ and how 

CSOs were assigned in DOE Manual 

411.1–C, Safety Management Functions, 

Responsibilities, and Authorities 

Manual, by site or organization. The 

commenter recommended that the 

definition be made consistent with DOE 

Manual 411.1–C. In response, DOE 

modified the definition of CSO in the 

final rule to include reference to a DOE 

official with primary line management 

responsibility for a contractor and any 

other official to whom the CSO 

delegates a particular function under 

this part. 

A compliance order is an order issued 

by the Secretary to a contractor that 

mandates a remedy, work stoppage, or 

other action to address a situation that 

violates, potentially violates, or 

otherwise is inconsistent with a 

requirement of this part. This provision 

merely codifies the Secretary’s authority 

under the AEA to take immediate action 

where necessary to ensure an adequate 

level of safety. While the Secretary 

might use this authority where there is 

a persistent pattern of non-compliance 

by a contractor that warrants Secretarial 

intervention, a compliance order is not 

intended to be used as a routine 

enforcement device by the Office of 

Price-Anderson Enforcement. DOE 

received no comments specifically 

related to this definition during the 

public comment period. Comments on 

the compliance order provisions of the 

rule are addressed in detail in the 

section-by-section discussion for final 

rule section 851.4. 

A consent order is any written 

document, signed by the Director and a 

contractor, containing stipulations or 

conclusions of fact or law and a remedy 

acceptable to both DOE and the 

contractor. DOE did not receive any 

comments on this proposed definition 

during the public comment period. 

Construction means any combination 

of erection, installation, assembly, 

demolition, or fabrication activities 

involved to create a new facility or to 

alter, add to, rehabilitate, dismantle, or 

remove an existing facility. It also 

includes the alteration and repair 

(including dredging, excavating, and 

painting) of buildings, structures, or 

other real property, as well as any 

construction, demolition, and 

excavation activities conducted as part 

of environmental restoration or 

remediation efforts. DOE added this 

definition to the final rule in response 

to public comments discussed in the 

section-by-section discussion for 

Appendix A section 1, ‘‘Construction 

Safety.’’

The construction contractor is the 

lowest tiered contractor or subcontractor 

with primary responsibility for the 

execution of all construction work 

described within a construction 

procurement or authorization document 

(e.g., construction contract, work order). 

DOE added this definition to the final 

rule in response to public comments 

discussed in the section-by-section 

discussion for Appendix A section 1, 

‘‘Construction Safety.’’

The construction manager is the 

individual or firm responsible to DOE 

for the supervision and administration 

of a construction project to ensure the 

construction contractor’s compliance 

with construction project requirements. 

DOE added this definition to the final 

rule in response to public comments 

discussed in the section-by-section 

discussion for Appendix A section 1, 

‘‘Construction Safety.’’

The construction project refers to the 

full scope of activities required on a 

construction worksite to fulfill the 

requirements of the construction 

procurement or authorization 

document. DOE added this definition to 

the final rule in response to public 

comments discussed in the section-bysection 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-bysection 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 


cprice-sewell on PROD1PC66 with RULES2
6870 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

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 contractorowned 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 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6871 

that DOE is defined in final rule section 

851.3 and includes any DOE 

headquarters, field, area, or site office. 

Where a specific office has a specific 

role or responsibility with respect to 

this rule, the specific office is referenced 

under the corresponding provision of 

the rule. 

A DOE Enforcement Officer is a DOE 

Official to whom the Director has 

assigned the authority to investigate the 

nature and extent of compliance with 

the requirements of this part. DOE 

added this definition to assist in 

clarifying enforcement authorities under 

the final rule. 

DOE site means DOE-owned or 

-leased area or location or other location 

controlled by DOE where activities and 

operations are performed at one or more 

facilities or locations by a contractor in 

furtherance of a DOE mission. This 

definition was revised to include all 

sites where DOE exercises regulatory 

control under the AEA, even if DOE 

does not own or lease the site. 

One commenter (Ex. 5) suggested a 

modification of the definition of ‘‘DOE 

site’’ to include the idea that some DOE 

sites have multiple contractors working 

on them. DOE disagrees that a 

modification to this definition is needed 

to clarify this point. The current 

definition does not limit the meaning of 

the term to areas where only one 

contractor works. 

Two commenters (Exs. 19, 48) 

questioned ownership and geographical 

issues with respect to a DOE site. One 

commenter (Ex. 48) suggested that DOE 

site should be defined as being strictly 

DOE-owned or directly DOE-leased 

areas/locations. The other commenter 

(Ex. 19) had contractor specific concerns 

about the definition’s applicability, 

requesting clarification that the rule 

only intended to cover sites owned or 

leased by DOE as opposed to DOE sites 

not owned or leased where contract 

work is performed. DOE considered 

these comments in revising the 

definition of ‘‘DOE site.’’

A final notice of violation is a 

document that determines a contractor 

has violated or is continuing to violate 

a requirement of this part. Such 

document includes: 

(1) A statement specifying the 

requirement of this part to which the 

violation relates; 

(2) A concise statement of the basis 

for the determination; 

(3) Any remedy, including the amount 

of any civil penalty; and 

(4) A statement explaining the 

reasoning behind any remedy. 

A final order is a DOE order that 

represents final agency action and, if 

appropriate, imposes a remedy with 

which the recipient of the order must 

comply. 

General Counsel refers to the General 

Counsel of DOE. 

A Head of DOE Field Element is the 

highest-level DOE official in a DOE field 

or operations office who has the 

responsibility for identifying the 

contractors and subcontractors covered 

by this part and for ensuring compliance 

with this part. DOE added this 

definition to assist in clarifying program 

review and approval authorities under 

the final rule by identifying the DOE 

official responsible for these actions 

under the rule. 

An interpretation refers to a statement 

by the General Counsel concerning the 

meaning or effect of a requirement of 

this part that relates to a specific factual 

situation but may also be a ruling of 

general applicability if the General 

Counsel determines such action to be 

appropriate. DOE received several 

comments regarding the interpretation 

provision of the rule. These comments 

are addressed in detail in the section-bysection 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 highexplosive 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, 


cprice-sewell on PROD1PC66 with RULES2
6872 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

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 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6873 

posting must remain in place until the 

violation is corrected. In addition, final 

rule section 851.42(e) requires posting 

of preliminary notices of violations 

(PNOVs) once they become final. The 

rule does not, however, require posting 

of employer responses to compliance 

orders or requests for recessions. 

Section 851.4(a)(1) establishes that the 

Secretary may issue to any contractor a 

Compliance Order that identifies a 

situation that violates, potentially 

violates, or otherwise is inconsistent 

with a requirement of this part. Two 

commenters (Exs. 15, 42) took issue 

with the reference to potential 

violations and the phrase ‘‘otherwise is 

inconsistent with’’ in this supplemental 

proposed provision. The commenters 

expressed concern that given the gravity 

of a compliance order and the 

progressive nature of enforcement 

described in Appendix B section IX, 

compliance orders should require a 

more definitive determination of 

violation. The commenters 

recommended that the phrase 

‘‘potentially violates, or otherwise is 

inconsistent with’’ be deleted from the 

provision. One commenter (Ex. 42) 

pointed out that OSHA does not cite 

employers for potential violations or 

inconsistencies and recommended 

adoption of a process similar to OSHA. 

DOE disagrees. This language, including 

the phrase ‘‘potentially violates,’’ is 

consistent with the Department’s 

longstanding procedural requirements 

set forth at 10 CFR 820.41. Given that 

these provisions have worked well in 

practice, DOE has determined that it 

would be inappropriate to modify this 

language. 

Another commenter (Ex. 27) 

suggested that the phrase ‘‘violates, 

potentially violates, or otherwise 

inconsistent with’’ was vague (as was 

language throughout the rule). The 

commenter recommended that the 

entire rule be rewritten to eliminate 

vague standards and criteria. Although 

the referenced phrase is broad, DOE 

does not agree that it is vague, and it is 

retained in the final rule. As to the 

broader comment about vagueness in 

the rule, DOE has carefully reviewed the 

rule in light of all comments received 

during the public comment period and 

has attempted to address those 

requesting clarification or further detail. 

DOE also intends to publish appropriate 

guidance materials to further help 

contractors with implementation. 

Section 851.4(a)(2) establishes that the 

Secretary may issue to any contractor a 

compliance order that mandates a 

remedy, work stoppage, or other action. 

Section 851.4(a)(3) establishes that any 

compliance order issued by the 

Secretary to any contractor will state the 

reasons for the remedy, work stoppage, 

or other action. DOE received no 

comments on these provisions during 

the public comment period. 

Section 851.4(b) establishes that the 

compliance order will be a final order 

that is effective immediately unless the 

order specifies a different effective date. 

Section 851.4(c) grants the recipient of 

a compliance order the right to ask the 

Secretary to rescind or modify the 

compliance order within 15 days of its 

issuance. The filing of a request for an 

appeal under this section will not 

automatically stay the effectiveness of 

such an order. The Secretary, however, 

could issue a compliance order that 

would provide an effective date after the 

issuance date, allowing a longer period 

to appeal the terms of the order. 

Two commenters (Exs. 5, 31) 

expressed concern that the 15-calendar 

day appeal period was not long enough. 

They argued that ‘‘it takes a month for 

a document issued by DOEHeadquarters 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 behaviorbased 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 


cprice-sewell on PROD1PC66 with RULES2
6874 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

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 selfidentified noncompliances above the 

NTS reporting thresholds since the 

contractor may receive up to 50% 

mitigation of the base penalty for selfreporting—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 OSHAregulated 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 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6875 

section 851.9(a)—e.g., ‘‘contractor * * * 

(or any subcontractor or supplier 

thereto) that violates (or whose 

employee violates)’’—expands the 

definitions of ‘‘contractor’’ and 

‘‘worker’’ beyond those in supplemental 

proposed section 851.3 and beyond the 

scope of the rule stated in supplemental 

proposed section 851.1. The commenter 

thought that this ‘‘expanded’’ definition 

might be interpreted as including work 

done by suppliers and vendors on sites 

far removed from DOE sites. DOE 

disagrees with this comment. Section 

851.3 defines terms such as 

‘‘contractors’’ and ‘‘workers,’’ while 

section 851.1 of the final rule describes 

which contractors are subject to the rule 

and section 851.5 describes enforcement 

provisions that apply to those 

contractors that are subject to the rule 

(as defined in section 851.1.). Sections 

851.3 and 851.5 do not change (and are 

not intended to change) the scope of the 

rule. Furthermore, section 851.1(a) 

states that the rule applies to the 

conduct of contractor activities at 

covered workplaces. 

Believing that ‘‘small business 

subcontractors are exempt from OSHA 

requirements,’’ the same commenter 

(Ex. 48) was concerned that this rule 

would make small business subject to 

OSHA requirements, as well as DOE 

enforcement and penalties, and would 

thus have a serious impact on small 

businesses. DOE notes that this 

commenter’s belief that small 

businesses are exempt from OSHA 

requirements is inaccurate. Although 

employers with 10 or fewer employees 

are exempt from most OSHA 

recordkeeping requirements for 

recording and reporting occupational 

injuries and illnesses, small businesses 

must comply with OSHA requirements 

and are subject to inspections (such as 

for accident investigations, complaint 

inspections, and other reasons). Because 

small businesses do not have the same 

resources as larger establishments, 

businesses do receive penalty reduction 

based on employer size. The commenter 

(Ex. 48) also asked for clarification 

regarding whether contractor employees 

are subject to civil penalty under the 

rule. DOE confirms that contractor 

employees are not subject to civil 

penalty; however, under section 

851.20(a)(3) contractors are required to 

assign worker safety and health 

responsibilities, evaluate personnel 

performance, and hold personnel 

accountable for worker safety and health 

performance. 

One commenter (Ex. 5) inquired about 

a specific situation in which OSHA had 

inspected facilities and found issues 

that would take a long time to resolve, 

so long that the corrective action plan 

would extend beyond the 

implementation date of the final rule. In 

this case, the commenter wondered, 

would the remaining violations be 

considered ‘‘continuing violations’’ and 

be subject to penalty for each day the 

condition goes uncorrected? The House 

Committee directed that $25,000,000 be 

transferred from the Departmental 

Administration account to the Science 

Laboratories Infrastructure to begin 

addressing the safety deficiencies at the 

Science laboratories. In addition, the 

Committee directed the Department to 

request sufficient funding in the budget 

requests for fiscal years 2005 and 2006 

to correct the remainder of the safety 

deficiencies. In such cases, DOE will 

consider the contractors abatement plan 

as well as the presence of interim 

control measures when assessing the 

penalty. One should note that there are 

no provisions for grandfathering 

existing noncompliances. 

DOE received two comments 

suggesting specific changes in the 

wording of the civil penalty 

enforcement provision in the 

supplemental proposal. In the first, the 

commenter (Ex. 5) suggested revising 

the second parenthetical phrase in 

section 851.5(a) to read ‘‘* * * whose 

employee or subcontractor violates.’’

DOE disagrees with this editorial 

suggestion. The rule applies directly to 

subcontractors. A contractor is not 

automatically liable for a 

subcontractor’s violations. To provide 

clear guidance on the subject, DOE will 

publish and implement an EGS on 

DOE’s multi-employer worksite policy 

(similar to OSHA’s policy) to clarify 

appropriate enforcement for 

subcontractor violations. 

The second commenter (Ex. 37) 

recommended that DOE add a provision 

stating that civil fines will not be 

imposed unless the contractor knew of 

the hazard and employees were injured 

or endangered. DOE disagrees that these 

criteria should protect a contractor from 

civil penalty; however, the Department 

does agree that these criteria should be 

considered in determining the 

appropriate level of penalty. DOE also 

notes when a contractor is not aware of 

a hazard, the question becomes ‘‘Should 

they have been aware of the hazard?’’

That is, did the contractor implement 

effective workplace assessment and 

inspections procedures as required 

under final rule section 851.21? 

Section 851.5(b) implements the 

provisions of section 234C.c. of the 

AEA. Section 234C.c. of the AEA 

requires DOE to include provisions in 

its contracts for an appropriate 

reduction in the fees or amounts paid to 

the contractor if the contractor or a 

contractor employee violates the 

regulations issued pursuant to section 

234C. The Act requires these provisions 

to be included in each DOE contract 

with a contractor that has entered into 

an agreement of indemnification under 

section 170d of the AEA (the PriceAnderson Amendment Act). The 

contract provisions must specify the 

degrees of violations and the amount of 

the reduction attributable to each degree 

of violation. 

DOE is implementing this statutory 

mandate to include provisions for the 

reduction in fees in contracts for 

violations of this part pursuant to the 

contract’s ‘‘Conditional Payment of Fee’’

clause. Most DOE management and 

operating contracts currently contain 

such a clause providing for reductions 

of earned fee, fixed fee, profit, or share 

of cost savings that may otherwise be 

payable under the contract if 

performance failures relating to 

environment, safety, and health occur. 

See 48 CFR 970.5215–3, ‘‘Conditional 

Payment of Fee, Profit, or Incentives’’

(applicable to DOE management and 

operating contracts and other contracts 

designated by the Procurement 

Executive). DOE amended this clause to 

set forth the specific criteria and 

conditions that may precipitate a 

reduction of earned or fixed fee, profit, 

or share of cost savings under the 

contract. The clause establishes 

reduction ranges that correlate to three 

specified degrees of performance 

failures relating to environment, safety, 

and health. In the final rule, DOE 

clarifies that the term ‘‘environment, 

health, and safety,’’ as applied in the 

context of the rule, includes matters 

relating to ‘‘worker safety and health.’’

Under the rule, DOE will apply the 

same reduction ranges and degrees of 

performance failure specified in the 

‘‘Conditional Payment of Fee, Profit, or 

Incentives’’ clause to worker safety and 

health. In a parallel provision to section 

234C.c., section 851.5(b) implements 

this statutory mandate by making a 

contractor that fails to comply with the 

requirements of Subparts B and C of the 

rule subject to a reduction in fees or 

other payments under a contract with 

DOE pursuant to the contract’s 

‘‘Conditional Payment of Fee’’ clause. 

Several of the comments that DOE 

received on section 851.5(b) related to 

how and by how much, fees could be 

reduced under this provision. Three 

commenters (Exs. 28, 45, 51) believed 

that reduction in fee is always an option 

for DOE and should not be a part of the 

rule, but instead should be included in 

appropriate contracts. DOE does not 

agree with these commenters. While 


cprice-sewell on PROD1PC66 with RULES2
6876 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

contract penalties are always applicable 

to provisions of a contract, they may or 

may not be directly linked to specific 

safety and health provisions of a 

contract. DOE believes that the rule 

strengthens enforcement options by 

specifying that contract penalties may 

be applied to violations of the 

requirements of the rule. Further, 

including this provision in the 

regulation is consistent with the 

underlying purpose of section 234C of 

the AEA. 

Two other commenters (Exs. 29, 47) 

were concerned whether the reduction 

in fee could exceed the $70,000 

maximum established for civil 

penalties. One of these commenters (Ex. 

47) thought that, to be consistent with 

section 234C(b) of the AEA, DOE 

needed to specify a maximum of 

$70,000 contract fee reduction to ensure 

‘‘legal equity’’ between the civil penalty 

and the contract fee reduction 

mechanism. DOE notes that except 

where a violation is considered a 

continuing violation, and each day is 

considered a separate day for the 

purposes of computing the penalty, the 

maximum civil penalty for each 

violation will not exceed $70,000. 

However, for contract penalties DOE 

will follow the Conditional Payment of 

Fee Clause. Other commenters 

suggested additional language and 

definitions for this section. One 

commenter (Ex. 47) suggested modifying 

the rule to state ‘‘The Director (e.g., 

principal enforcement officer) must 

approve invocation of the Conditional 

Payment of Fee Clause.’’ This 

commenter believed that supplemental 

proposed Appendix A section IX(1)(f) 

only required ‘‘coordination’’ of all 

violations with the DOE contract official 

responsible for administering the 

Conditional Payment of Fees Clause 

when considering invoking the 

provisions for reducing contract fees. 

DOE does not agree and notes that the 

Director has been delegated the 

responsibility for determining the 

appropriate type of penalty to be 

applied to a given violation. When 

contract penalties are used in lieu of 

civil penalties, the Director coordinates 

with the responsible contracting official 

since the selected remedy is within the 

purview of the contracting officer. 

Two other commenters (Exs. 28, 51) 

presumed that a reduction in fees under 

this provision could not be brought 

against a subcontractor due to ‘‘privity 

of contract’’ (i.e., DOE does not have a 

relationship with the subcontractor). 

These commenters found this somewhat 

confusing because the term ‘‘contractor’’

was defined to include ‘‘subcontractor.’’

DOE requires contractors to flow the 

requirements of this rule down to their 

subcontractors. Thus, if DOE elects to 

reduce the contractor’s fee, the 

contractor could in turn penalize the 

subcontractor. As noted previously, 

however, a more likely scenario is that 

DOE would simply choose the civil 

penalty option. 

As a general matter, DOE intends to 

use civil penalties as the remedy for 

most violations where DOE may elect 

between remedies. DOE expects to 

invoke the provisions for reducing 

contract fees only in cases involving 

especially egregious violations or that 

indicate a general failure to perform 

under the contract with respect to 

worker safety and health. Such 

violations would call into question a 

contractor’s commitment and ability to 

achieve the fundamental obligation of 

providing safe and healthy workplaces 

for workers because of factors such as 

willfulness, repeated violations, death, 

serious injury, patterns of systemic 

violations, flagrant DOE-identified 

violations, repeated poor performance 

in an area of concern, or serious 

breakdown in management controls. 

Because such violations indicate a 

general failure to perform under the 

contract with respect to worker safety 

and health, where both remedies are 

available and DOE elects to use a 

reduction in fee, DOE would expect to 

reduce fees substantially under the 

Conditional Payment of Fee clause. 

Section 234C.d. of the AEA imposes 

three specific limitations on DOE’s 

authority to seek monetary remedies. 

Specifically, DOE may not (1) both 

reduce contract fees and assess civil 

penalties for the same violation of a 

worker protection requirement; (2) with 

respect to those nonprofit contractors 

specifically listed as exempt from civil 

penalties for nuclear safety violations in 

subsection d. of section 234A of the 

AEA, assess an aggregate amount of civil 

penalties and contractor penalties in a 

fiscal year in excess of the total amount 

of fees paid by DOE to that nonprofit 

entity in that fiscal year; and, (3) assess 

both civil penalties authorized by 

section 234A (nuclear safety and 

radiological protection regulations) and 

those authorized by section 234C 

(worker safety and health regulations) 

for the same violation. These statutory 

limitations are set forth in sections 

851.5(c), (d) and (e) of the rule. 

DOE received six comments on 

section 851.5(c), two comments on 

section 851.5(d), and no comments 

specific to section 851.5(e). Several of 

the comments on section 851.5(c) relate 

to the imposition of civil or contract 

penalties. One commenter (Ex. 15) 

pointed out that DOE is prohibited from 

using both civil penalties and contract 

penalties thus supplemental proposed 

section 851.9(c) should replace the word 

‘‘may’’ with ‘‘shall’’ in the phrase ‘‘DOE 

shall not penalize a contractor * * *’’

DOE disagrees with this commenter 

since ‘‘may not’’ means ‘‘is not 

permitted.’’

Another commenter (Ex. 13) felt that 

the criteria used to make the 

determination for imposing the civil 

penalty rather than reducing contract 

fees should be embedded in the rule. 

DOE has not adopted this suggestion. 

Under the final rule, the decision to use 

either civil penalties or contract 

penalties is at the discretion of the 

Director and is subject to the specific 

circumstances of each situation. The 

Director will coordinate with the 

appropriate contracting official when 

deciding upon the appropriate penalty 

method. DOE believes that attempting to 

predict and develop mandatory criteria 

encompassing all potential 

circumstances in this rule would be 

unnecessarily restrictive and counter to 

the provision of the statutory 

requirement for flexibility and 

discretion in the enforcement of this 

rule. 

Another commenter (Ex. 48) 

recommended revising this section to 

state that a contractor cannot be 

penalized under sections 851.5(a) and 

(b) for the same violation even if such 

violation is addressed under another 

DOE rule, regulation, or order contained 

in the contractor’s contract. The 

commenter suggested that although 

supplemental proposed section 851.9(c) 

attempts to prevent dual (contract and 

civil) penalties for the same violation, 

such ‘‘double jeopardy’’ could exist if 

DOE codifies DOE Order 440.1A. DOE 

believes this commenter’s concern is 

unfounded. The statute is clear on this 

issue and the final rule retains the 

original provision to prevent the use of 

civil and contract penalties for the same 

violation. 

One commenter (Ex. 54) questioned 

DOE’s decision not to subject 

contractors to both civil and contract fee 

reduction penalties for the same 

violation. The commenter cited the 

National Academy of Public 

Administration (NAPA) studies, which 

show that bonuses were not effectively 

linked to safety and health performance. 

DOE notes that, as was described 

previously, the statute specifically 

prohibits DOE from imposing both 

contract and civil penalties for the same 

safety and health violation. 

A second commenter (Ex. 37) 

suggested expanding supplemental 

proposed section 851.9(c) in the final 

rule to avoid imposing a fine when a 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6877 

contractor earns less than the available 

fee as a result of a safety and health 

incident. DOE does not believe an 

expansion of the limitation is needed. A 

civil penalty can only be applied if 

violation of the rule exists. If this 

violation resulted in an injury, final rule 

section 851.5(c) would prevent DOE 

from implementing both civil and 

contract penalties for the same 

violation. DOE notes, however, that if an 

injury resulted from a violation, DOE 

would consider this fact, as well as the 

severity of the injury, in determining the 

amount of penalty. 

Referring to the section 851.3 

definition of ‘‘contractor’’ as it applies 

to section 851.5(c), the same commenter 

(Ex. 37) inquired what DOE expects of 

‘‘affiliates.’’ To ensure that responsible 

parties such as an affiliate are held 

responsible for the safety and health of 

workers, and to maintain consistency 

with the duties and responsibilities set 

forth in 10 CFR part 820, DOE is 

retaining the reference to affiliated 

entities in the definition. It is important 

to note, however, that DOE will 

consider enforcement actions against 

any and all contractors associated with 

a violation. All subcontractors and 

suppliers of an indemnified contractor 

are considered indemnified contractors, 

and as such, are subject to either civil 

penalties or contract penalties. 

The two comments related to section 

851.5(d) were both received from the 

same commenter (Ex. 29). One of the 

comments requested that the provision 

state that penalties ‘‘shall’’ (rather than 

‘‘may’’) not exceed the contract fee. DOE 

notes that the language in the final rule 

‘‘may not exceed’’ is consistent with the 

enacting legislation. DOE understands 

(and intends for) this language to mean 

that the Department is not permitted to 

assess an aggregate amount of civil and 

contract penalties against a non-profit 

entity under the rule in excess of the 

total amount of fees paid by DOE to that 

non-profit entity for the given fiscal 

year. The second comment (Ex. 29) 

suggested that, to the extent that DOE 

may assess both nuclear safety (under 

10 CFR 820) and worker safety penalties 

(under this rule), this final rule should 

clarify that the penalty limit applies to 

an aggregate of both types of 

assessments. DOE notes, that the statute 

authorizing the assessment of civil 

penalties for violations of the rule does 

not require a limit based on total annual 

penalties assessed for violations of 

nuclear safety requirements. Therefore, 

this final rule does not limit total annual 

penalty amounts due to penalties 

assessed under 10 CFR 830. DOE will, 

however, consider this recommendation 

in developing an enforcement guidance 

supplement (EGS) for worker safety and 

health enforcement. 

DOE notes that enforcement actions 

cannot be brought until the rule 

becomes effective, which is one year 

after publication in the Federal 

Register. Moreover, enforcement actions 

must be based on violations that take 

place after the effective date of the rule. 

Furthermore, compliance with certain 

requirements (such as submission of a 

worker safety and health program) is not 

required immediately upon the effective 

date of the rule. Of course, nothing in 

the rule affects the possibility of 

enforcement of contractual provisions in 

effect prior to the effective date of the 

rule. 

Section 851.6—Interpretation 

Supplemental proposed section 

851.6(a) established that the Office of 

General Counsel would be responsible 

for formulating and issuing any 

interpretation concerning a requirement 

in this part. Several commenters (Exs. 

11, 15, 16, 31, 36, 39, 42, 48, 54) were 

critical of this supplemental proposed 

provision which gave the DOE Office of 

General Counsel an exclusive role in 

issuing interpretations of this part. They 

expressed concern that DOE’s 

interpretations of OSHA standards 

would conflict with existing OSHA 

interpretations. The commenters stated 

that the codes and standards of Subpart 

C require interpretation by a competent 

technical authority and suggested that 

DOE adopt technical interpretation 

procedures similar to OSHA’s—that is, 

these commenters felt the Assistant 

Secretary for Environment, Safety and 

Health should issue all technical 

interpretations. Two commenters (Exs. 

31, 48) suggested that DOE use the Field 

Office staff to assist in developing 

interpretations and a few commenters 

(Exs. 15, 16, 48) recommended that DOE 

adopt already existing OSHA 

interpretations where possible. Yet, 

another commenter (Ex. 29) questioned 

whether interpretations could be 

captured in the contractor worker safety 

and health program and approved by 

virtue of the CSO approval of the 

program. 

Although DOE is of the view that the 

distinction between legal interpretations 

and technical interpretations is too 

vague for those terms to be used in part 

851, DOE has responded to the 

comments by elaborating on the 

procedures available to members of the 

public who want to ask for an 

interpretation or who want to ask for 

amendments to part 851 to clarify or 

alter regulatory provisions. DOE has 

revised proposed section 851.6 and 

added new sections 851.7 and 851.8. 

Section 851.6 of the final rule, sets forth 

procedures for petitions to initiate 

generally applicable rulemaking to 

amend the provisions of part 851. 

Section 851.7 of the final rule provides 

for requests for interpretive rulings 

applying the regulations to a particular 

set of facts and providing an 

interpretation that is binding on DOE. 

Section 851.8 of the final rule 

provides for requests for information on 

the standards in part 851, which may be 

directed to the Office of Environment, 

Safety and Health, Office of Health (EH–

5). The responses given by EH–5 would 

be advisory only and would not be 

binding on DOE. In addition, to assist 

the DOE community in understanding 

the technical meaning or application of 

a specific requirement, EH–5 would 

continue to operate its safety and health 

response line to provide information on 

technical safety and health 

requirements, requirements published 

by OSHA, and other adopted standards. 

In cases where the information is related 

to OSHA standards, EH–5 would 

continue to consult the existing body of 

OSHA interpretations on these 

regulations. EH–5 would also consult 

with OSHA representatives if OSHA 

interpretations did not address a unique 

DOE question or circumstance. 

B. Subpart B—Program Requirements 

Subpart B of the final rule establishes 

general administrative requirements to 

develop, implement, and maintain a 

worker protection program. The worker 

safety and health program would serve 

as the blueprint through which DOE 

contractors can communicate a cohesive 

vision for how various elements making 

up their overall program interrelate. 

As a general suggestion, one 

commenter (Ex. 6) recommended that 

supplemental proposed Subpart B be 

cross-walked against OSHA’s 29 CFR 

1910 and 29 CFR 1926 to identify 

potential overlaps and deviations 

between the OSHA standards and the 

proposed rule. DOE has considered the 

commenter’s concern but believes such 

an effort would serve no useful purpose, 

as the OSHA standards do not establish 

provisions for a safety and health 

program. 

Section 851.10—General Requirements 

Section 850.10 establishes the general 

requirements for the worker safety and 

health program. These requirements 

outline the basic duties of a contractor 

to maintain a safe and healthful 

workplace, to comply with the 

requirements of this rule, and to 

develop and implement a written 

program. A few commenters (Exs. 37, 

48, 49, 51) expressed concern that the 


cprice-sewell on PROD1PC66 with RULES2
6878 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

worker safety and health program would 

result in increased costs and burden of 

additional paperwork due to the 

extensive requirements of the rule. They 

were particularly concerned that 

supplemental proposed section 851.100 

introduced new requirements above and 

beyond what is expected under existing 

DOE directives and felt that these 

requirements, along with a complicated 

exemption process, would result in 

increased costs. DOE acknowledges the 

concerns of these commenters and notes 

that the final rule has been revised to 

closely follow the requirements in DOE 

Order 440.1A. Hence, DOE believes that 

implementation of the final rule will 

result in minimal (if any) additional 

costs. 

DOE also received comments on the 

subject of limited-duration contractors 

onsite. One commenter (Ex. 40) sought 

clarification that the worker safety and 

health program requirements applied to 

all contractors, including those brought 

in for limited-duration and limitedscope work or tasks. DOE notes that 

final rule section 851.1 clarifies that the 

worker safety and health requirements 

of the rule govern the conduct of 

contractor activities at DOE sites. This 

includes limited-duration contractors 

along with all others (with the exception 

of contractors performing work covered 

under the exclusions in final rule 

section 851.2). 

Another commenter (Ex. 37) pointed 

out that limited-duration contractors 

will have to become familiar with a 

safety program foreign to them. In 

response to this concern, DOE believes 

the program is based on sound worker 

safety and health principles designed to 

protect the safety and health of workers 

on DOE sites. DOE sees no reason to 

hold one group of DOE contractors to a 

lesser standard of safety and health 

protection than others. DOE also 

believes that the complexity and level of 

effort needed to develop and implement 

worker safety and health program under 

this rule will be greatly dependent on 

the complexity, duration, and scope of 

the activities covered. As a result, DOE 

would expect that a limited duration 

contractor performing a task of limited 

scope would require a much simpler 

program than would a management and 

operating contractor on a large DOE 

facility. 

A few commenters (Exs. 3, 4, 45) took 

issue with the requirement in 

supplemental proposed section 

851.100(b)(3)(iii) for contractors to 

achieve national security missions of 

the DOE ‘‘in an efficient and timely 

manner’’ and deemed it inappropriate in 

a rule governing worker safety and 

health. Further, one commenter (Ex. 20) 

believed that implementation of the rule 

itself would have an adverse effect on 

its ability to ‘‘achieve national security 

missions of the Department of Energy in 

an efficient and timely manner.’’ In 

response to these concerns, DOE 

modified the language to eliminate this 

requirement from the program 

provisions of Subpart B. Instead, final 

rule section 851.31(c)(3) provides for a 

national defense variance where a 

deviation from the letter of a safety and 

health standard may be necessary and 

proper to avoid serious impairment of 

national defense. 

Section 851.10(a)(1) provides that, 

with respect to a covered workplace for 

which a contractor is responsible, the 

contractor must provide a place of 

employment that is free from recognized 

hazards that are causing or have the 

potential to cause death or serious 

physical harm to workers. A similar 

provision established in section 5(a)(1) 

of the OSH Act of 1970 (29 U.S.C. 654) 

is commonly referred to as the General 

Duty Clause and states that each 

employer shall furnish to each of his 

employees employment and a place of 

employment which are free from 

recognized hazards that are causing or 

are likely to cause death or serious 

physical harm to his employees. Both 

OSHA and DOE currently apply this 

provision to workplaces covered under 

their respective jurisdictions. 

A few commenters (Exs. 3, 4, 16) 

expressed concern that the phrase 

‘‘responsible for a covered workplace’’

as applied to contractors in 

supplemental proposed section 851.4 

could lead to confusion regarding 

applicability of the rule to both 

contractors and subcontractors. DOE has 

retained the language in the 

corresponding section 851.10(a)(1) of 

the final rule. DOE believes that final 

rule section 851.1 clearly establishes 

that the rule applies to contractor 

activities on DOE sites, and the revised 

definition of contractor in final rule 

section 851.3 is clear as to what entities 

are considered to be contractors. 

Several commenters (Exs. 12, 16, 37) 

expressed concern that the DOE General 

Duty Clause lacked supporting guidance 

language, thus potentially resulting in 

the risk of this obligation being 

interpreted more severely than OSHA’s 

General Duty Clause. These commenters 

suggested that guidance and case law 

developed by OSHA should be relied 

upon for determining violations and 

penalties under the DOE rule with 

defenses commonly available in OSHA 

enforcement proceedings equally 

available to DOE contractors. One 

commenter (Ex. 16) favored deleting the 

General Duty Clause altogether because, 

the commenter asserted, it is 

unattainable as a stand-alone mandatory 

requirement. As an alternate suggestion, 

if the Clause was not deleted, the same 

commenter concurred with two other 

commenters and recommended 

including the ‘‘full context of the 

General Duty Clause as used by OSHA’’

in the rule. Specifically, the commenter 

felt the provision should state that the 

Clause only applies where there is no 

standard and should list the four 

elements required by OSHA to prove a 

violation. DOE believes that the 

language used in final rule section 

851.10(a)(1) for the General Duty Clause 

is consistent with the language 

established in the OSH Act and parallels 

that used in DOE Order 440.1A. As a 

result, DOE believes that its contractors 

are intimately familiar with this 

provision. However, to address these 

comments and to assist in consistent 

enforcement of the rule, the DOE Office 

of Price-Anderson Enforcement intends 

to prepare enforcement guidance 

supplements (EGSs) to provide guidance 

on interpretation of the General Duty 

Clause, consistent with OSHA guidance 

on the topic. 

DOE received several comments on 

the terminology used in supplemental 

proposed section 851.100(a) to refer to 

hazards. The majority of the 

commenters on this issue (Exs. 11, 28, 

29, 39, 45, 49, 51) favored retention of 

the term ‘‘identified hazards’’ to 

describe hazards that were within the 

rule. But some of these commenters 

(Exs. 11, 29, 39, 49) suggested inclusion 

of additional terminology like ‘‘potential 

hazards,’’ ‘‘unprotected hazards,’’ and 

‘‘inherent hazards that are controlled’’

to ensure a better understanding of the 

types of hazards covered under the 

provision. A few commenters (Exs. 28, 

45, 51) favored deleting the term 

‘‘recognized hazards’’ from the text 

asserting that workers could only be 

protected from ‘‘identified hazards.’’

One commenter (Ex. 27) recommended 

that DOE provide a list of specific 

hazards that a place of employment 

should be free of to preclude subjective 

interpretations of the types of 

recognized workplace hazards that 

could cause or be likely to cause death 

or serious bodily harm. 

DOE has carefully considered these 

comments and has simplified section 

851.10(a)(1) of the rule to require 

contractors to provide a workplace free 

of recognized hazards that are causing, 

or have the potential to cause, death or 

serious physical harm. Also, as 

discussed previously, DOE has removed 

the provision in supplemental proposed 

section 851.100(a)(2). Final rule sections 

851.21(a) and 851.22(a) further clarify 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6879 

that, as part of the contractor’s worker 

safety and health program, procedures 

must be established that contractors will 

use to identify existing and potential 

workplace hazards and evaluate, 

prevent, and abate associated risks. 

With respect to hazard protection 

implications of the General Duty Clause, 

several commenters (Exs. 20, 31, 36, 39, 

42, 49) asserted it was impossible to 

provide a workplace ‘‘free’’ of hazards 

without stopping work. Some of these 

commenters (Exs. 31, 36, 39, 42) 

suggested rewriting the provision to 

require the workplace to be ‘‘free from 

uncontrolled or unmitigated hazards.’’

DOE has elected to retain the original 

language consistent with the provisions 

of DOE Order 440.1A and OSHA’s 

General Duty Clause and will provide 

appropriate implementation and 

enforcement guidance. Two other 

commenters (Exs. 20, 42) questioned the 

definition of the term ‘‘adequately’’ in 

the context of the phrase ‘‘adequately 

protected from identified hazards’’ in 

supplemental proposed section 

851.100(a)(2) and similar language in 

section 851.4(b). As previously 

discussed, DOE believes ‘‘adequate 

protection’’ is a clear standard that has 

been used in other context and 

recognizes the need to protect workers 

from all identified hazards. 

Several commenters (Exs. 5, 16, 29, 

48) took issue with the phrase, ‘‘likely 

to cause death or serious bodily harm’’

in section 851.10(a)(1). One commenter 

(Ex. 5) felt that the phrase, as used in 

supplemental proposed sections 

851.100(a) and 851.4(a), implied that 

only violations that could result in 

death or serious bodily harm would 

result in fines or penalties. This of 

course is not the case. Section 851.5 of 

the final rule clarifies that contractors 

are subject to civil or contract penalties 

for any violations of any requirements of 

this rule. As specified in Appendix B 

section IX.b.2 and 3, however, DOE will 

consider the severity of the hazard 

posed to workers in determining the 

amount of the penalty imposed. The 

other commenters (Exs. 16, 29, 48) 

argued that the phrase was too 

subjective and had posed enforcement 

problems for OSHA in the past. These 

commenters felt that a change in 

language or a definition of the term 

‘‘serious bodily harm’’ was needed to 

avoid confusion. DOE has modified this 

language slightly in final rule section 

851.10(a) to replace ‘‘serious bodily 

harm’’ with ‘‘serious physical harm.’’

This change in terminology is consistent 

with the language in DOE Order 440.1A. 

DOE believes that this provision (and 

language) has been applied successfully 

through the Order for the past decade 

and that, as a result, contractors are 

intimately familiar with the language. 

Section 851.10(a)(2) requires the 

contractor to ensure that work is 

performed in accordance with all 

applicable requirements of Part 851 and 

with the worker safety and health 

program for the workplace. One 

commenter (Ex. 37) expressed concerns 

about potential penalties that could 

result from failure to comply with the 

worker safety and health program. 

Specifically, the commenter was 

concerned that non-compliances with 

any component of a contractor’s worker 

safety and health program (even those 

outside the requirements of the rule) 

could result in civil penalties. This 

commenter believed that enforcement 

against provisions of a contractor’s 

program that go above and beyond the 

requirements of the rule will lead 

contractors to adhere only to the 

minimum requirements outlined in the 

rule and will result in a watered-down 

worker safety and health program. This 

commenter argued that only noncompliances with specific worker safety 

and health requirements in the rule 

should result in civil penalties. DOE 

disagrees and believes that the 

requirement for contractors to develop 

and implement an approved program 

makes compliance with the provisions 

of the program enforceable under the 

rule. DOE expects that not enforcing 

these requirements would result in 

ineffective programs that are not fully 

implemented. DOE also notes that a 

contractor’s proactive safety and health 

efforts will be considered in 

determining the level of penalty 

associated with a violation and believes 

that this will continue to compel 

contractors to develop and implement 

effective programs. 

Section 850.10(b)(1) specifies that the 

written program must describe how the 

contractor will comply with the 

requirements in Subpart C that are 

applicable to the hazards associated 

with the contractor’s scope of work. 

Two commenters (Exs. 16, 48) expressed 

concern that excess paperwork would 

be generated due to the Subpart C 

requirements to develop numerous 

functional area sub-plans in the worker 

safety and health program. The 

commenter suggested that these Subpart 

C requirements duplicated the Subpart 

B requirement specifying effective 

implementation of supplemental 

proposed Subpart C in the written 

worker safety and health program. DOE 

agrees with these comments. Section 

851.10(b)(1) of the final rule requires 

contractors to establish a written worker 

safety and health program that must 

describe how the contractor will comply 

with the requirements in Subpart C that 

are applicable to its scope of work. In 

addition, final rule section 851.24 

requires contractors to take a structured 

approach to their worker safety and 

health program and include provisions 

for the applicable functional areas in the 

worker safety and health program. DOE 

believes that this integration of 

requirements will reduce excess 

paperwork. 

One commenter (Ex. 16) expressed 

concern that the language, 

‘‘requirements * * * applicable to the 

hazards identified for the workplace’’ in 

supplemental proposed section 851.4(c) 

was confusing. The commenter noted 

that the standards incorporated into 

Subpart C already included a clear 

statement of scope and questioned 

whether the statement in supplemental 

proposed section 851.4(c) referred to 

these scope statements or to some other 

different scope determinations, such as 

an agreed-upon set of Work Smart 

Standards. DOE intends for this 

phrase—revised in section 851.10(b)(1) 

of the final rule to read, ‘‘applicable to 

the hazards associated with the 

contractor’s scope of work’’—to refer to 

the individual scope of the standard or 

regulation for those standards specified 

in the final rule section 851.23. In the 

case of the functional area requirements 

specified through final rule section 

851.24, this phrase applies to the 

specific topic covered in the functional 

area (e.g., pressure safety requirements 

apply only to worksites with pressure 

hazards). All other provisions of final 

rule Subpart C apply to all work sites 

within the scope of the rule as specified 

in final rule section 851.1. 

Another commenter (Ex. 54) 

suggested that this section should 

require that contractors comply with 

provisions of the rule establishing 

worker rights to information. In 

response to this commenter’s concern, 

DOE notes that final rule section 

851.10(b) requires contractors to comply 

with the requirements of Subpart C of 

the rule. Worker rights provisions are 

established in Subpart C and thus are 

included in this broad requirement. To 

further address this comment, DOE also 

added final rule section 851.20(a) to 

clarify management responsibilities and 

ensure worker rights. 

The same commenter (Ex. 54) also 

suggested that the ‘‘General 

Requirements’’ section of the rule 

should include requirements to post 

appeals, variance requests, orders and 

all communications between the 

employer and DOE. DOE notes that 

requirements (1) a requirement to post 

compliance orders is established in final 

rule section 851.4(d); (2) requirements 


cprice-sewell on PROD1PC66 with RULES2
6880 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

to post and inform employees of 

variance requests are addressed in final 

rule sections 851.31, 851.32, and 851.33; 

and (3) management requirements 

regarding health and safety related 

information and communication with 

workers are established in 851.20(a). 

The rule does not establish a 

requirement to post appeals. 

One commenter (Ex. 49) stated that 

the supplemental proposed requirement 

to identify and document situations for 

which an exemption is needed within 

the worker safety and health program in 

addition to identifying and 

documenting the same situations 

through the exemption process 

represented an unnecessary duplication 

of effort which should be eliminated. 

DOE agrees and has removed this 

provision from the final rule. 

Several commenters (Exs. 16, 39, 42, 

45, 51) sought clarification on the 

tailoring of worker safety and health 

requirements required by supplemental 

proposed section 851.100(b)(3). One 

commenter (Ex. 16) suggested it was 

impractical for the rule to invoke 

specific requirements (in Subpart C) and 

then specify that implementation of the 

specific requirements was to be tailored. 

The commenter pointed out that the 

specific requirements were either met or 

not met. The commenter also alluded to 

a potential conflict: other provisions 

implied that formal exemptions were 

needed for deviations from specific 

requirements of Subpart C (tailoring was 

included in the special circumstances 

for exemption criteria in supplemental 

proposed section 851.301). The 

commenter recommended that much of 

the required flexibility/tailoring could 

be built into the safety and health 

requirements themselves. Two other 

commenters (Exs. 45, 51) requested 

clarification on the intent and 

application of the tailoring with respect 

to enforcement actions for noncompliances. Another commenter (Ex. 

42) requested that DOE provide specific 

criteria to determine what would 

constitute effective implementation of 

tailored worker safety and health 

requirements in supplemental proposed 

section 851.100(b)(3). One last 

commenter (Ex. 39) suggested that the 

actual level of safety protection (e.g., fire 

protection) be specified by DOE at the 

start of a contract, not refined through 

the exemption process by the contractor 

well into the contract. In response to 

these concerns, DOE has modified the 

language in the final rule to eliminate 

the requirement for tailoring of worker 

safety and health programs in Subpart 

B. In addition, the variance process 

described in Subpart D of the rule no 

longer includes tailoring a requirement 

as a rationale for a variance. 

Section 850.10(b)(2) specifies that the 

written program must comply with any 

compliance order issued by the 

Secretary pursuant to section 851.4. One 

commenter (Ex. 16) objected to previous 

wording requiring that contractors 

comply with compliance orders that are 

‘‘applicable to the workplace’’ and 

questioned why DOE would issue a 

compliance order under this rule that is 

not applicable to the workplace. DOE 

acknowledges the validity of the 

observation and has removed the phrase 

‘‘applicable to the workplace’’ from the 

corresponding provision in final rule 

section 851.10(b)(2). 

Section 851.11—Development and 

approval of worker safety and health 

program 

Section 850.11 establishes the 

procedures for the development and 

approval of the worker safety and health 

program. One commenter (Ex. 27) 

expressed concern that vague language 

in the supplemental proposal did not 

lend itself to an enforceable rule. The 

commenter pointed to the provision of 

supplemental proposed section 

851.101(a)(2)(ii) requiring contractors to 

‘‘ensure worker safety and health 

programs are integrated and consistent’’

as an example to illustrates this point. 

DOE acknowledges the commenter’s 

concern and has made every attempt to 

eliminate vague language from the final 

rule. However, DOE has retained certain 

commonly understood words and terms 

in order to allow interpretive latitude to 

suit differing situations of different DOE 

contractors. 

One commenter (Ex. 47) stated that 

the establishment of standards, such as 

the OSHA standards, based on welldefined Federal regulations was 

preferable to the approved safety and 

health program approach proposed in 

the rule. The commenter noted that the 

OSHA approach takes advantage of over 

30 years of workplace safety and health 

and reflects responses to hazards found 

in general industry. The commenter 

believed such an approach would also 

promote consistency across the DOE 

complex as well as accountability for 

specific compliance requirements. DOE 

acknowledges that there are some 

advantages to having a single set of 

regulations applicable to all DOE 

contractors. Nevertheless, there are 

offsetting disadvantages to having a 

‘‘one-size-fits all’’ approach. DOE 

believes that the approach adopted in 

the final rule that includes both 

requirements of general applicability, 

supplemented by additional 

requirements tailored to the specific 

needs and concerns of a specific 

contractor is the superior approach to 

providing the optimal level of worker 

safety and health. 

DOE received numerous comments on 

perceived increased costs and 

administrative burden that would result 

from establishing written worker and 

safety health programs. The majority of 

the commenters (Exs. 3, 4, 16, 19, 25, 

31, 37, 38, 42, 47, 48, 49, 57) expressed 

concern that the requirements to 

develop a new discrete written program; 

integrate and implement that program 

on the worksite; and maintain, update, 

and regularly audit the program would 

result in significantly increased costs 

and administrative burden. Two 

commenters (Exs. 31, 48) specifically 

requested that these impacts be 

considered prior to codification. Several 

commenters (Exs. 3, 4, 37, 42, 47, 49) 

suggested that approval of the program 

should be sufficient to meet the intent 

of the rule without further requirements 

to maintain, update, and audit the 

program. Two commenters (Exs. 19, 57) 

favored elimination of these 

requirements from the rule altogether. 

Another commenter (Ex. 38) argued that 

these requirements were redundant, 

duplicating DOE’s existing review and 

approval of contractors’ environment, 

safety, and health activities like the 

Work Smart set. DOE agrees and has 

provided in final rule section 851.13 

that in the event a contractor has 

established a written safety and health 

program, an Integrated Safety 

Management System (ISM) description 

pursuant to the DEAR Clause, or an 

approved Work Smart Standards (WSS) 

process before date of issuance of final 

rule, the contractor may continue to use 

that program, description, or process as 

the required worker safety and health 

program if the appropriate Head of the 

DOE Field Element approves such use 

on the basis of written documentation 

provided by the contractor that 

identifies the specific portions of the 

program, description, or process, 

including any additional requirements 

or implementation methods to be added 

to existing program, description, or 

process, that satisfy the requirements 

and that provide a workplace as safe 

and healthful as those required by the 

final rule requirements. 

Several commenters (Exs. 39, 45, 51) 

stated that processes described in 

supplemental proposed section 851.101 

represented an expansion of the scope 

of contractor obligations compared to 

current DOE contractual requirements 

and orders. A few commenters (Ex. 36, 

39, 42) expressed concern that 

development of the worker safety and 

health plan and delays in waiting for 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6881 

approval would result in increased 

costs. Several other commenters (Exs. 

28, 37, 45, 49, 51) concurred and sought 

clarification from DOE on whether costs 

incurred by contractors and 

subcontractors in developing and 

implementing the DOE-approved 

worker safety and health program were 

allowable in accordance with FAR Part 

31 and DOE Acquisition Regulation 

Subpart 931 principles. Costs of 

compliance with Part 851 are usually 

going to be allowable costs under the 

contract under FAR Part 31 and DEAR 

Part 970.31. Contractor costs in 

developing and implementing a DOEapproved worker safety and health 

program are routine costs that are 

typically allowable. An exception to 

cost allowability might exist, however, 

if the action or inaction of contractor 

managerial personnel is the original 

cause of the non-compliance, 

particularly if the non-compliance 

violates an approved integrated safety 

management system. 

One commenter (Ex. 51) voiced the 

concern that the worker safety and 

health rule would require 

documentation and implementation 

strategies separate from those for DOE 

Order 440.1A and the Integrated Safety 

Management (ISM) Program. In 

response, DOE notes that the final rule 

is based on DOE Order 440.1A and 

replaces Attachment 2, ‘‘Contractor 

Requirements Document of the order. In 

addition, final rule section 851.11(a)(3) 

requires that the written program 

describe how the contractor will 

integrate all requirements of Part 851 

with other related site-specific worker 

protection activity and with the 

Integrated Safety Management Systems 

(ISMS). Section 851.13(b) of the rule 

clarifies that contractors who have 

implemented a written worker safety 

and health program, ISM description, or 

Work Smart Standards process prior to 

the effective date of the final rule may 

continue to implement that program/ 

system so long as it satisfies the 

requirements of Part 851. Hence, DOE 

believes that the integration of these 

existing programs with the worker 

safety and health program will eliminate 

any duplication of effort and limit any 

additional burden associated with the 

rule. 

Section 850.11(a) requires contractors 

to prepare and submit a worker safety 

and health program that provides 

methods for implementing the 

requirements of Subpart C to the 

appropriate Head of DOE Field Element 

for approval within 380 days 

publication of the final rule in the 

Federal Register, February 26, 2007. 

Some commenters (Exs. 5, 13, 19, 38, 

57) took issue with the need to prepare, 

submit, and obtain DOE approval of the 

written safety and health program. 

Three of these commenters (Exs. 19, 38, 

57) asserted that the requirements for 

submittal, review, and approval of 

worker safety and health programs were 

not necessary to allow DOE to meet its 

statutory obligation under section 3173 

of the National Defense Authorization 

Act (NDAA). One commenter (Ex. 5) 

suggested that the imposition of core 

requirements in supplemental proposed 

sections 851.10 and 851.100 should 

preclude the need for DOE to approve 

worker safety and health plans and 

supported simply adding the rule to the 

DOE list of applicable standards 

provided in management and operating 

contracts and other DOE contracts. 

Another commenter (Ex. 13) 

recommended that these provisions be 

revised to allow the worker safety and 

health program to be written as an 

overview or roadmap document, 

illustrating the integration of current 

infrastructure documents (previously 

created under DOE Orders 440.1A and 

420 and DOE Notice 450.7). This 

commenter suggested that the level of 

oversight DOE already maintains over 

programs under existing contract 

structures justifies the submission of 

merely the overview document, without 

any of the supporting safety 

management program documents. DOE 

believes that the provisions for 

submission, review and approval of the 

written safety and health program plans 

are necessary to permit the Department 

to meet its responsibilities under section 

3173 of the NDAA and the AEA to 

ensure a safe and healthful workplace. 

DOE further notes that the process 

strikes an appropriate balance between 

allowing contractors and workers to 

have input into the requirements, while 

recognizing that DOE management must 

be satisfied with their implementation. 

These programs will also be useful to 

DOE’s enforcement office to evaluate 

compliance with the rule. Further, the 

final rule recognizes that programs are 

already in place and are consistent with 

the existing mechanism for the 

submission and approval of worker 

safety and health plans under Part 851. 

DOE received numerous comments on 

the proposed time schedule for 

submission of worker safety and health 

programs by contractors. The general 

concern expressed by the commenters 

(Exs. 3, 4, 5, 16, 28, 29, 31, 35, 36, 39, 

42, 47, 51, 57) was that the 

supplemental proposed section 

851.101(a) requirement allowed 

insufficient time for an adequate 

submission of the written worker safety 

and health programs by the July 25, 

2005, due date. The commenters also 

generally recommended modification of 

the due date depending on the date of 

issuance of the final rule. Many 

commenters (Exs. 13, 28, 29, 31, 33, 37, 

45, 47, 49, 51, 57) offered various 

suggestions for the time contractors 

would need to prepare and submit the 

written worker safety and health 

program, ranging anywhere from 90 

days to 12 months after publication of 

the final rule in the Federal Register. 

DOE acknowledges the validity of the 

commenters’ concerns regarding the 

specific date published in the 

supplemental proposal and has 

modified the corresponding final rule 

section 851.11(a) to require contractors 

to prepare and submit the worker safety 

and health program within 380 days 

after the date of publication of the final 

rule in the Federal Register. In selecting 

this date, DOE took into account that the 

NDAA prohibits the rule from becoming 

effective until twelve (12) months after 

issuance. DOE expects contractors to 

begin work on their worker safety and 

health program immediately upon 

publication of the final rule and to 

consult with DOE during the period 

before the rule becomes effective. 

Accordingly, DOE believes it is 

reasonable to require submission of the 

worker safety and health programs no 

later than 380 days after publication in 

the Federal Register. In a related matter, 

DOE believes it is reasonable to require 

contractors to be in compliance with 

their worker safety and health programs 

no later than 470 days after publication. 

DOE also received several questions 

and comments on contractorsubcontractor obligations and 

relationships with respect to 

development of the worker safety and 

health program. Several commenters 

(Exs. 13, 20, 28, 29) questioned whether 

subcontractors, vendors, and delivery 

contractors needed to submit their own 

worker safety and health programs or 

whether they were covered under the 

programs of their prime or management 

and operating contractors. One of these 

commenters (Ex. 20) further questioned 

whether employees of a subcontractor 

with a worker safety and health program 

would be covered under the 

subcontractor’s program or that of the 

prime management and operating 

contractor. DOE generally expects that 

contractors with primary responsibility 

will develop the health and safety 

programs and subcontractors will follow 

the programs pursuant to 851.11(a)(2) 

and (3). However, in some cases in 

which a subcontractor has primary 

responsibility, it may be necessary and 


cprice-sewell on PROD1PC66 with RULES2
6882 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

appropriate for them to provide a 

supplemental program. In situations 

involving such overlap, contractors 

need to coordinate so there are clear 

rules, responsibilities, and procedures 

that result in an integrated approach to 

worker safety and health. As discussed 

previously, vendors and delivery 

contractors are not contractors for 

purposes of the rule and in general, 

their employees are subject to programs 

developed by the contractor under 

OSHA’s regulatory authority. 

Nevertheless, when employees of such 

vendors are on DOE sites, they will 

benefit from the requirements put in 

place under Part 851. 

With respect to changes in contractors 

due to contract competition, two 

commenters (Exs. 25, 27) voiced 

concern about the effects of a change in 

laboratory prime contractors and noted 

there was no provision in the proposed 

rule dealing with such an event. One of 

these commenters (Ex. 27) specifically 

suggested that given DOE’s current 

approach of re-competing contracts, 

Subpart B of the rule should be 

modified to address potential changes in 

management and operating 

contractors—especially during the 

period between the effective date of the 

rule and the one year anniversary. 

Pursuant to the statutory requirements, 

the rule contemplates that a new 

contractor is required to submit and 

gain approval for its worker safety and 

health program. As a practical matter, if 

a prior contractor had a workable 

program, DOE expects that the new 

contractor’s burden would be minimal 

because it could submit a similar 

program. 

Section 851.11(a)(1) describes 

contractor requirements in cases where 

a contractor is responsible for more than 

one covered workplace. Under such 

conditions, the rule requires the 

contractor to establish and maintain a 

single worker safety and health program 

for the covered workplaces for which 

the contractor is responsible. One 

commenter (Ex. 5) expressed the 

opinion that this requirement 

contradicts the requirement for 

contractors to integrate health and safety 

programs with other site DOE 

contractors. The commenter suggested 

that one contractor should be 

responsible for the whole site, with all 

other users conforming to that 

contractor’s worker safety and health 

program. DOE disagrees, given the 

complexity and diversity at some DOE 

sites, each contractor responsible for 

work at covered workplaces should 

coordinate with the other contractors to 

ensure that there are clear roles, 

responsibilities and procedures that will 

ensure the safety and health of workers 

at multi-contractor workplaces. 

Section 851.11(a)(2) describes 

contractor requirements if more than 

one contractor is responsible for a 

covered workplace. This section 

clarifies that in such cases, each 

contractor must establish and maintain 

a worker safety and health program to 

cover its activities and must coordinate 

with the other contractors responsible 

for work at the workplace to ensure that 

individual roles, responsibilities, and 

procedures are established to ensure 

worker safety and health at multicontractor workplaces. 

One commenter (Ex. 15) 

recommended that the terms ‘‘integrated 

and consistent’’ in supplemental 

proposed section 851.101(a)(2)(ii) be 

replaced with ‘‘reflect a common 

approach and level of protection’’ to 

allow greater latitude in situations 

where multiple contractors are 

responsible for different activities in a 

workplace. The commenter was of the 

opinion that this flexibility was 

essential to ensure a focus on safety 

instead of the administrative burden of 

integration of multiple prime 

contractors. DOE agrees with this 

commenter and has revised section 

851.11(a)(2)(ii) of the final rule to 

require that contractors ‘‘coordinate 

with the other contractors responsible 

for work at the covered workplaces to 

ensure that there are clear roles, 

responsibilities, and procedures that 

will ensure the safety and health of 

workers at multi-contractor 

workplaces.’’

Several commenters (Exs. 13, 28, 45, 

51) sought clarification on this 

provision, asking which contractor 

would be responsible for submission of 

the written worker safety and health 

program on multi-contractor sites 

requiring integration and coordination. 

Three of these commenters (Exs. 28, 45, 

51) recommended that each contractor 

must maintain a worker safety and 

health program for the workplaces for 

which each is responsible at a DOE site 

where multiple contractors are 

responsible for covered workplaces. 

DOE agrees with these three 

commenters that this was the intent of 

the supplemental proposal. DOE notes 

that the final rule in section 851.11(a)(2) 

requires each contractor with 

responsibility for a covered workplace 

to establish and maintain a worker 

safety and health program for the 

workplaces for which they are 

responsible. Hence, at multi-contractor 

sites, each contractor is responsible for 

submitting its own worker safety and 

health program for the covered 

workplaces for which it is responsible. 

Some commenters raised concerns 

about site responsibility issues at multicontractor sites. Two commenters (Exs. 

3, 4) asserted that the stipulation that 

there may be more than one contractor 

responsible for a covered workplace 

contradicts other provisions of the rule 

and will lead to confusion in 

application. Two other commenters 

(Exs. 29, 49) questioned whether the 

management and operating contractor at 

any given work place would have any 

oversight, reporting, or other 

responsibility for work conducted at 

that site by another organization under 

direct contract to DOE. Another (Ex. 40) 

sought clarification of the issue of 

decentralized vs. centralized 

responsibility on DOE work sites and 

DOE assignment of contractor 

responsibilities for health and safety 

requirements (e.g., traffic safety) across 

entire DOE sites. To address these 

concerns, DOE expects to publish 

enforcement guidance supplements 

(EGSs) as discussed in the section-bysection discussion for Subpart E to 

describe DOE’s planned enforcement 

approach on multi-employer sites. DOE 

will base these EGSs on similar OSHA 

multi-employer worksite enforcement 

policies implemented in private 

industry. 

DOE received numerous comments on 

the subject of consistency of worker 

safety and health programs on multiemployer worksites. The main issues of 

concern included establishing a basis 

for ensuring consistency and the lack of 

contractual and legal relationships 

between contractors. The main 

recommendations offered to DOE by 

commenters in resolving these concerns 

were for DOE to act as the coordinating 

authority and for DOE to review and 

make use of the OSHA Multi-Employer 

Policy in the DOE rule. Each of these 

issues is discussed in more detail below. 

With respect to establishing a basis for 

ensuring consistency of worker safety 

and health programs on multi-employer 

work sites, one commenter (Ex. 45) 

expressed concern that the language in 

the proposed rule was subjective, lacked 

measurement, and was an expectation, 

not an enforceable requirement. The 

commenter was of the opinion that 

consistency should arise from the 

workforce and be handled in good faith 

by employers. The commenter further 

remarked that invoking consistency on 

multi-employer worksites through 

enforcement of a standard left the 

employer at risk for compromising their 

safety program and made DOE 

responsible for the success or failure of 

implementation and performance. 

Several other commenters (Exs. 16, 

39, 47, 48, 49, 58) raised the issue of the 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6883 

inherent difficulty in coordinating and 

integrating worker safety and health 

plans at multi-employer sites due to 

lack of contractual relationships 

between contractors or the legal 

authority to modify another contractor’s 

program. The same commenters (Exs. 

16, 39, 47, 48, 49, 58) recommended that 

the coordination, accountability, and 

authority for various worker safety and 

health plans among multiple contractors 

on a site should rest with DOE since 

DOE directly contracts with these 

entities and maintains contractual 

authorities. Alternatively these 

commenters were in favor of deletion of 

this provision from the rule altogether. 

One commenter (Ex. 48) specifically 

requested definition of and guidelines 

for integration and consistency and 

suggested that the final rule establish 

who would determine when integration 

and consistency requirements were 

adequately met on multi-employer sites. 

Other commenters (Exs. 49, 58) 

specifically recommended that issues 

such as those described in the preceding 

paragraphs would best be addressed 

through the application of OSHA’s 

Interpretation of Multi-Employer 

Worksite Citation Policy regarding 

creating, controlling, exposing, and 

correcting employers. As discussed 

elsewhere, DOE intends to prepare an 

enforcement guidance supplement that 

will provide guidance on multiemployer worksites that is consistent 

with current OSHA policy. 

One commenter (Ex. 39) felt that the 

requirement to coordinate programs 

with other contractors responsible for 

work on the covered workplace did not 

address the issue of application of 

worker safety and health requirements 

to private entities benefiting from reuse 

of former Federal facilities on DOE sites. 

For instance, the DOE site contractor 

may still provide emergency response 

and security services to the private 

entity, but the private entity would not 

be subject to the rule. The commenter 

sought clarification of how the 

emergency response and security 

personnel would be protected in such 

instances. In response, DOE notes that 

emergency response and security 

personnel would be covered by their 

respective worker safety and health 

program regardless of their location on 

a DOE site. In facilities leased to 

community reuse organizations and 

their tenants, safety and health 

provisions of the lease agreement would 

apply to the leasee. 

Two commenters (Exs. 31, 35) 

expressed concern about the potential 

conflict between the proposed rule’s 

requirement to tailor the worker safety 

and health program and the need to 

integrate the contractor’s worker safety 

and health programs at a DOE site. One 

commenter (Ex. 31) was of the opinion 

that the requirement for integration 

between contractors, which would 

intrinsically seek a majority consensus, 

was in conflict with the requirement to 

tailor the worker safety and health 

program to the work environment. The 

other commenter (Ex. 35) offered the 

observation that even though the 

purpose and basis of the worker safety 

and health programs of different 

contractors may be the same, the details 

of each worker safety and health 

program must be tailored to the specific 

work to ensure effective 

implementation. DOE recognizes that 

the proposed requirement to ‘‘integrate’’

worker safety and health programs 

created some confusion during the 

public comment period. As a result, the 

term has been removed from final rule 

section 851.11(a)(2)(ii). This section 

now clarifies that contractors must 

coordinate with other contractors onsite 

to ensure clear delineation of roles, 

responsibilities, and procedures. 

DOE also received numerous 

comments that argued that the 

requirement for integration and 

coordination would result in increased 

costs and additional administrative 

burden. The commenters (Exs. 13, 19, 

31, 35, 36, 39, 42, 48) expressed concern 

that integration and coordination 

between different contractors on a DOE 

site would be costly and burdensome 

due to differing missions and 

management systems and complex 

inter-relationships. One commenter (Ex. 

39) specifically requested that DOE 

modify standard contract terms to 

include the requirement to coordinate 

with other onsite contractors in order to 

allow contractors to be reimbursed for 

costs associated with the coordination 

activity. DOE disagrees that contract 

modifications are required since 

contractors on a site currently operate 

their worker safety and health programs 

with or without conflict. Conflicts are 

normally resolved when they occur. 

DOE expects that the level of 

adjustments needed to coordinate 

worker safety and health programs will 

be minimal and that wide-scale 

modifications will not be necessary. 

DOE received several comments on 

the issue of ensuring subcontractor 

compliance as required by supplemental 

proposed section 851.100(b)(9). These 

commenters (Exs. 16, 28, 31) raised 

concerns regarding adequate means of 

enforcing compliance, potential 

increased costs, and accountability 

concerns. One commenter (Ex. 16) 

voiced the concern that flow-down 

requirements and monitoring and 

penalizing subcontractors for failure to 

comply were insufficient to ensure 

compliance. The commenter 

recommended that the rule section be 

‘‘rewritten to include quantifiable 

intent.’’ Two commenters (Exs. 28, 31) 

asserted that the requirement for 

contractors to ensure subcontractor 

compliance would result in the need to 

re-negotiate legal contracts between 

prime contractors and subcontractors 

and lead to increased costs. As 

discussed above, DOE intends to 

address these questions in appropriate 

EGSs on multi-employer worksites 

consistent with current OSHA policy. 

However, DOE notes that all contractors, 

including subcontractors, are 

responsible for complying with Part 851 

to the extent they are responsible for a 

covered workplace. 

In another area related to 

subcontractor compliance, two 

commenters (Exs. 37, 47) were 

concerned that increased contractor 

oversight and the potential penalties 

would have a negative impact on 

subcontractors and could discourage 

some subcontractors from performing 

work on DOE sites. DOE is required by 

statute to implement a worker safety 

and health program that covers all 

contractors, including subcontractors. 

One commenter (Ex. 29) requested 

clarification that the need to coordinate 

and integrate programs applied only to 

multi-employer sites, not contractor/ 

subcontractor relationships. This 

commenter argued that contractors 

should require subcontractors to 

conform to their programs. They should 

not be required to integrate their 

programs with their subcontractors’. 

DOE’s intent with this provision is not 

to limit the contractor’s contractual 

authority, but rather to ensure that 

safety and health program roles, 

responsibilities, and procedures are 

clearly understood by all contractors on 

a covered worksite. In fact, DOE 

recognizes that requiring subcontractors 

(through appropriate subcontract 

mechanisms) to conform to the 

contractor’s safety and health program is 

an effective way to meet the intent of 

final rule section 851.11(a)(2)(ii). 

Section 851.11(a)(3) describes the 

required components of the contractor’s 

worker safety and health program. 

Specifically the section requires that the 

program describe how the contractor 

will comply with the requirements of 

Subpart C of the final rule and how they 

will integrate these requirements with 

other related site-specific worker 

protection activities and with the ISMS. 

Several commenters (Exs. 13, 16, 25, 

28, 35, 45, 51, 57) sought clarification 

on the nature and extent of the worker 


cprice-sewell on PROD1PC66 with RULES2
6884 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

safety and health program document 

and requested that DOE develop more 

detailed guidance on what constituted 

an acceptable worker safety and health 

program. Many of the same commenters 

(Exs. 27, 28, 35, 45) also questioned 

whether existing worker protection 

initiatives such as the ISM descriptions, 

Work Smart Standards, and ‘‘B-List’’

contract requirements could be used to 

fulfill new program requirements. Some 

were concerned with a potential 

duplication of effort and the resulting 

cost. One of these commenters (Ex. 28) 

specifically sought clarification on 

whether the new program was to be 

developed based on the outline in 

Subpart C and whether a collection of 

existing safety procedures, plans, 

guides, and manuals would be sufficient 

to meet the requirement. To address 

these concerns, final rule section 

851.11(a)(3) requires the worker safety 

and health program to describe how the 

contractor will integrate the 

requirements of Subpart C of the rule 

with site-specific worker protection 

activities and with ISMS. Subpart C 

provides more detailed direction on the 

required content of the program. This 

required content is closely aligned with 

the program requirements of DOE Order 

440.1A. In addition, final rule section 

851.13(b) allows contractors who have 

implemented a written worker safety 

and health program, an ISM description 

(pursuant to the DEAR Clause), or a 

Work Smart Standard process prior to 

the issuance of the final rule, to 

continue to implement that program, 

description, or process so long as it 

satisfies the requirements of Part 851 

and is approved by the appropriate 

Head of DOE Field Element. Further, the 

existing series of implementation guides 

developed to assist DOE contractors in 

implementing the provisions of DOE 

Order 440.1A also can assist in 

implementation of the rule. Shortly after 

publication of this rule, DOE anticipates 

publishing updated implementation 

guides revised to specifically address 

the provisions of the final rule. 

Section 851.11(b) of the final rule 

delineates the responsibilities of the 

Head of DOE Field Element with respect 

to evaluation and approval of worker 

safety and health programs within 90 

days of receipt of a contractor 

submission. This provision further 

establishes that the worker safety and 

health program and any updates will be 

deemed approved 90 days after 

submission, if not specifically approved 

or rejected by DOE within the approval 

timeframe. 

One commenter (Ex. 49) sought 

clarification from DOE on the value of 

the formal worker safety and health 

program approval process. The 

commenter suggested that the 

requirements enforceable via the 

penalty process should be promulgated 

in the rule and other contractual 

requirements enforced via contractual 

mechanisms. The commenter also noted 

that each contractor’s program would 

differ, which could lead to enforcement 

inconsistencies. DOE notes that the 

enabling legislation makes both civil 

and contract penalty options available 

to DOE. Civil penalties can be used only 

to enforce regulatory requirements. As 

discussed in connection with 

implementation, regulatory enforcement 

necessarily takes into account whether a 

contractor has undertaken necessary 

and sufficient actions to implement the 

requirements established by the rule. 

Two commenters (Exs. 5, 51) sought 

clarification on the reason for DOE 

approval of contractor worker safety and 

health programs. One commenter (Ex. 5) 

asserted that if DOE must approve all 

worker safety and health programs and 

supplemental proposed Subpart E 

provides that only a violation of 10 CFR 

851 could result in an enforcement 

actions, then DOE would be liable if it 

approved a program that 

inappropriately excluded an element of 

the health and safety program. Another 

commenter (Ex. 51) did not agree that 

DOE approval of the health and safety 

plan was required, since DOE did not 

adopt responsibility or liability for the 

content of the plan but instead would 

force contractors to make changes to 

plans and field actions. The commenter 

suggested that submission of a 

comprehensive safety and health 

program should be sufficient and should 

include construction health and safety 

issues. The commenter also noted that 

DOE approval of lower-tier 

implementing documents should not be 

mandated or codified. DOE believes that 

approving worker safety and health 

plans is an essential element in carrying 

out its statutory responsibilities 

concerning worker safety and health. 

DOE notes the rule does not require 

approval of ‘‘lower-tier’’

implementation decisions. As 

previously discussed, if these contractor 

decisions do not result in proper 

implementation of the rule, the 

contractor will be subject to 

enforcement actions, including the 

imposition of civil penalties. 

Two commenters (Exs. 13, 42) sought 

the inclusion of criteria in the rule for 

DOE review and approval of the written 

worker safety and health programs. 

These commenters felt that such criteria 

were needed to ensure consistent 

worker safety and health programs 

across the DOE complex, to ensure a 

consistent review and approval 

processes by DOE field offices, and to 

minimize the level of effort required to 

develop and obtain program approval. 

These commenters sought specific 

guidance on the DOE Field Office 

review and approval process; the 

criteria for determining the appropriate 

standards needed to achieve the 

required level of protection; and 

clarification regarding who had the 

burden of demonstrating ‘‘equivalency.’’

DOE notes that Subpart C of the final 

rule now provides more specific detail 

on the required content of the program. 

This detail is consistent with DOE Order 

440.1A and, as a result, is familiar to 

DOE contractors. In addition, DOE will 

develop and publish appropriate 

implementation guidance to supplement 

these requirements and to assist DOE 

Head of Field Elements. 

One commenter (Ex. 48) sought 

clarification of the role of local DOE 

field offices in the approval and 

maintenance of the worker safety and 

health program. DOE has clarified this 

point in final rule section 851.11(b), 

which states that the appropriate Head 

of DOE Field Element is responsible for 

review and approval of the submitted 

worker safety and health program. For 

further clarification, DOE has defined 

the term ‘‘Head of DOE Field Element,’’

as used in this rule in final rule section 

851.3. 

Several commenters (Exs. 13, 28, 29, 

39, 45, 51) suggested that the submitted 

program should be considered approved 

if DOE does not act within the 90-day 

time frame allotted for approval, and the 

program should be implemented as 

submitted. One commenter (Ex. 13) 

specifically provided 10 CFR 830 as a 

model for language in this provision. 

This commenter noted that, according to 

10 CFR 830, if DOE fails to approve or 

reject the required plan within the 

prescribed period, the existing plan is 

by default approved. Another 

commenter (Ex. 48) proposed an 

alternate time period for approval and 

suggested that plans should be 

considered approved by the Cognizant 

Secretarial Officer if they are not 

specifically rejected within 180 days of 

submission. A few commenters (Exs. 25, 

29, 45, 48) raised the doubt that even if 

a contractor submitted a worker safety 

and health program on schedule, any 

inability of DOE to approve the program 

could translate to a site or laboratory 

being completely shut down which in 

turn would place a significant risk upon 

the contractors. In response to these 

comments DOE has modified the final 

rule to clarify in section 851.11(b) that 

worker safety and health programs will 

deemed approved 90 days after 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6885 

submission if not specifically approved 

or rejected by the appropriate Head of 

DOE Field Element. 

One commenter (Ex. 5) expressed 

concern that if DOE required approvals 

and annual updates to the worker safety 

and health program, then the Voluntary 

Protection Program (VPP) should be 

eliminated since there would be no 

voluntary portion of the safety and 

health program. DOE disagrees with the 

commenter. The DOE VPP status 

requires contractors to go beyond 

simply complying with the 

requirements of this rule. VPP promotes 

effective, comprehensive worksite safety 

and health and encourages employers to 

perfect existing programs (continuous 

improvement). In the VPP, management, 

labor, and DOE establish cooperative 

relationships at workplaces that have 

implemented a comprehensive safety 

and health management system. 

Approval into VPP is DOE’s official 

recognition of the outstanding efforts of 

employers and employees who have 

achieved exemplary occupational safety 

and health programs. 

Yet another commenter (Ex. 37) 

questioned how the prime contractor 

would obtain timely DOE approval of 

changes to the worker safety and health 

program when unforeseen emergencies 

were involved. The commenter referred 

to the aging infrastructure of some DOE 

facilities, which may necessitate 

emergency repairs to utilities and 

immediate mitigation under direct 

onsite safety coordination without the 

luxury of written safety planning. In 

response to this concern, DOE notes that 

the intent of its program is to establish 

implementation procedures for 

identifying and controlling hazards. The 

program itself does not list of all 

hazards with control mechanisms for 

each hazard. Therefore, the program 

does not need to be updated each time 

a new hazard is identified; rather, it 

must be updated only when a new 

process is added or a different type of 

hazard is introduced (or another 

significant change occurs) that is not 

effectively addressed through the 

procedures established in the program. 

Section 851.11(b)(1) of the final rule 

stipulates that beginning one year after 

the date of publication of the final rule, 

no work may be performed at a covered 

workplace unless an approved worker 

safety and health plan program is in 

place for the workplace. DOE received 

numerous comments about work 

stoppage on sites due to lack of approval 

of worker safety and health programs. 

Two commenters (Ex. 5, 29) questioned 

if the ‘‘entire contractor work ceases’’ if 

DOE does not approve a contractor’s 

worker safety and health program. One 

of these commenters (Ex. 5) sought 

clarification of what would occur while 

approvals were pending. The rule makes 

it clear that a contractor cannot proceed, 

if it has not obtained approval for its 

program. This is necessary to ensure 

workplace safety and health. 

Nevertheless, to decrease any 

unreasonable burden, the rule provides 

transition for existing programs. 

Several commenters (Exs. 33, 39, 38, 

47, 57) expressed concern that the 

proposed requirement for a complete 

work stoppage on sites due to a lack of 

an approved worker safety and health 

program failed to take several important 

issues into consideration. Two of these 

commenters (Exs. 38, 57) asserted that a 

complete work stoppage would be an 

untoward response to a limited set of 

pending issues requiring resolution 

(such as an application for an 

exemption) prior to program approval. 

These commenters felt that the 

supplemental proposal ignored the need 

to continue certain site activities to 

ensure that facilities and equipment 

were maintained in a safe configuration. 

The same commenters also noted that 

complete work stoppage would give rise 

to shutdown, maintenance, and startup 

costs, with no benefit to DOE or the 

workers. Two commenters (Exs. 38, 47) 

recommended substituting a more 

reasonable and graded approach for the 

proposed ban on all work activities 

should the provision be maintained. 

DOE has carefully considered these 

comments, but has not revised this 

provision of the rule. Contractors should 

already have a worker safety and health 

program in place under existing contract 

requirements. DOE believes that 470 

days is sufficient for contractors to come 

into compliance with the rule, including 

adjusting their existing programs if 

needed. 

A few commenters (Exs. 33, 39, 45, 

47) expressed the concern that this 

provision of the rule fails to 

acknowledge that many sites have 

approved ISM, Voluntary Protection 

Program, and human performance 

programs already in place that meet or 

exceed DOE requirements for worker 

protection. The commenters 

recommended that a mechanism for 

approving programs that have 

undergone ISM verification should be 

included in the rule. DOE agrees with 

these commenters and has clarified in 

final rule section 851.13(b) that 

contractors who have implemented a 

written worker safety and health 

program or ISM description or Work 

Smart Standard process prior to the 

effective date of the final rule may 

continue to implement that program/ 

system so long as it satisfies the 

requirements of Part 851 and is 

approved by the appropriate Head of 

DOE Field Element. 

One commenter (Ex. 37) suggested 

that provision should be made in the 

rule to give contractors more time if 

their worker safety and health program 

approvals were delayed due to a DOE 

backlog in granting exemptions. This 

commenter felt that supplemental 

proposed section 851.100(b)(5) required 

approved exemptions as a component of 

the worker safety and health program. 

The commenter questioned how 

Congress would respond to a facility 

shutdown even though the facility was 

in full compliance with all standards 

existing when the 2002 legislation was 

passed. DOE does not intend for 

program approval to be contingent upon 

approval of variances. To clarify this 

point, DOE has removed the provision 

of the supplemental proposal that 

required that contractors identify 

conditions that require an exemption in 

the program. Further, as discussed in 

detail in the section-by-section 

discussion of Subpart D, DOE does not 

anticipate that a large number of 

variances will be requested under this 

rule. 

Some commenters (Exs. 6, 29, 31) 

questioned whether EH had the 

resources to review and concur or 

comment on contractor programs from 

across the DOE complex in time to 

preclude work stoppage. One 

commenter (Ex. 29) requested that the 

Cognizant Secretarial Officer (CSO) 

approval process be detailed in the rule, 

and questioned whether there would be 

onsite review and validation by an 

external DOE team similar to the ISM 

verification process. This commenter 

also questioned how the contractor 

would be notified if the Cognizant 

Secretarial Officer delegated approval 

authority to the Site Manager. DOE 

acknowledges these concerns and has 

streamlined the approval process in the 

final rule. Specifically, final rule section 

851.11(b) establishes the Head of DOE 

Field Element as the approval authority 

for worker safety and health programs. 

The rule no longer requires review and 

consultation by the Assistant Secretary 

for Environment, Safety and Health, nor 

does it provide for delegation of 

approval authority; however, 

contractors must send copies of their 

approved programs to the Assistant 

Secretary under final rule section 

851.11(b)(2). DOE does not envision the 

use of external DOE onsite review and 

validation teams as part of the program 

approval process. As discussed in the 

section-by-section discussion for 

Subpart E, DOE will use onsite 

inspections as a tool to verify program 


cprice-sewell on PROD1PC66 with RULES2
6886 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

implementation and compliance with 

other provisions of the rule. 

Many commenters (Exs. 28, 39, 45, 

51) sought clarification on the specific 

contract provision DOE expects to use to 

direct a contractor to stop work, 

pointing out that a contractor may not 

stop performance on a contract without 

direction from the DOE contracting 

officer per DEAR 970.5204–2(g). DOE 

notes that the stop work authority in the 

regulation is independent from the 

contract’s provisions. Compliance 

orders by the Secretary represent an 

exercise of AEA authority, while stop 

work authority in subpart C is a 

regulatory mechanism. 

Section 851.11(b)(2) of the final rule 

describes contractor responsibilities 

with respect to distribution of the 

approved worker safety and health 

program to the DOE Assistant Secretary 

for Environment, Safety and Health. As 

discussed above, this provision replaces 

the proposed rule’s provision requiring 

the Assistant Secretary’s consultation 

during the program approval process. 

Section 851.11(b)(3) of the final rule 

describes contractor responsibilities 

with respect to distribution of the 

approved worker safety and health 

program to affected workers or their 

designated worker representatives upon 

written request. DOE’s intent with this 

requirement is to facilitate 

implementation and enforcement of the 

rule. In addition, this section ensures 

that workers and their representatives 

have access to information related to the 

protection of their health during the 

performance of DOE activities. DOE 

added this provision to the final rule in 

response to commenters’ requests to 

clarify the management responsibilities 

and worker rights specified in final rule 

section 851.20. These commenters’

concerns are discussed in greater detail 

in the section-by-section discussion for 

final rule section 851.20. 

Section 851.11(c)(1) of the final rule 

describes contractor requirements for 

submission of periodic updates to the 

worker safety and health program to the 

Head of DOE Field Element for review 

and approval whenever a significant 

change or addition to the program is 

made or a change in contractors occurs. 

One commenter (Ex. 29) requested 

clarification of what would constitute 

‘‘significant changes or additions’’ to the 

worker safety and health program. The 

commenter inquired whether worker 

safety and health programs had to be 

submitted if significant changes 

occurred before the annual review cycle. 

In response, DOE notes that these terms 

are subjectively applied in determining 

if an update to the program is needed. 

DOE does not envision a ‘‘cookbook’’

list of changes that would automatically 

trigger a program update. Rather, DOE 

intends for contractors to consider 

work-site or process changes in light of 

their current programs and determine if 

their programs effectively address the 

change. If the answer is no, then the 

change would be considered 

‘‘significant’’ and thus necessitate an 

update to the program. 

DOE received numerous comments on 

the supplemental proposal requirement 

for triennial (36-month) internal audits 

of the worker safety and health program. 

One commenter (Ex. 30) supported the 

provision but noted that the results 

should also be transmitted to employees 

and their representatives. The majority 

of the commenters (Exs. 5, 13, 16, 28, 

29, 31, 35, 36, 39, 42, 48, 49), however, 

disagreed strongly with the need for this 

requirement citing reasons ranging from 

a lack of a clear specification of the 

required scope of the audit to concerns 

regarding administrative burdens and 

increased costs. DOE has considered 

and agrees with many of these concerns; 

accordingly, DOE has deleted the 

provision requiring 36-month internal 

audits and audit report submission from 

the final rule. 

Section 851.11(c)(2) of the final rule 

describes contractor requirements for 

annual submission of updates to the 

worker safety and health program or, 

alternatively, a letter stating no changes 

are necessary in the currently approved 

program. One commenter (Ex. 49) 

recommended that the requirement for 

an annual submission be eliminated 

from the rule. The commenter argued 

that once a worker safety and health 

program is developed, there should be 

no requirement to submit an annual 

update. The commenter also felt this 

requirement was inconsistent with 10 

CFR 835, which only requires DOE 

approval of the Radiation Protection 

Program if changes decrease the 

effectiveness of the program. The 

commenter asserted this requirement 

appeared to be a purely paperwork 

requirement, which added no safety and 

health benefit to the process. DOE does 

not agree with this comment. The scope 

of the radiological work environment is 

very specific and controls are welldefined. On the other hand, the nonradiological work environment is 

transitory in nature and covers a wide 

range and large number of hazards. For 

this reason, DOE contractors must 

annually assess the nature of the 

workplace and the effectiveness of their 

programs. Two other commenters (Exs. 

3, 4) asserted that the requirement for 

annual evaluation and updating of the 

worker safety and health program was 

inconsistent with practices in general 

industry. DOE disagrees with these 

commenters and points out that while 

there is no standard that requires private 

sector employers to update their safety 

and health programs annually, it is a 

common practice among responsible 

employers and is consistent with the 

protection DOE wants to afford its 

contractor employees. 

One commenter (Ex. 29) requested 

clarification on whether the annual 

submittal was based on the calendar or 

fiscal year. Unless otherwise specified, 

annual updates should coincide with 

the anniversary date of the initial 

approval. This will alleviate having all 

updates being submitted at the same 

time. 

Two commenters (Exs. 36, 42) sought 

clarification of whether the rule 

required DOE approval of the annual 

submission and if so, within what time 

periods. The commenters expressed 

concern that the requirement for annual 

approval could result in work stoppages 

as contractors wait for approvals. One of 

these commenters (Ex. 36) proposed that 

the rule should require DOE approval 

within 30 days after contractor 

submittal. Under 851.11(b) of the final 

rule, any updates must be approved 90 

days after submission. Until the updates 

are approved, a contractor should 

continue to operate under its prior plan. 

Several commenters (Exs. 19, 31, 36, 

39, 42, 48) expressed concern that 

additional substantial costs would be 

associated with meeting the requirement 

for annual reviews. These commenters 

recommended that impacts be 

considered prior to codification. DOE 

prepared an Economic Analysis for the 

final rule. The analysis was conducted 

at 8 DOE sites (representatives of each 

type facility) and based its cost 

estimation methodology on a 

comparison of the requirements of this 

Part (10 CFR 851) with DOE Order 

440.1A. Overall, the bulk of these costs 

are attributable to requirements for 

converting medical records to electronic 

format, the compiling and submitting of 

written safety and health plans, and the 

submission of annual updates. Several 

sites indicated substantial costs for 

maintenance of complete and accurate 

hazard and exposure information, for 

communication of safety information to 

labor unions, and for implementation of 

the electrical safety program. It is 

estimated that the annualized costs for 

25 DOE contractor sites to comply with 

the final rule are, therefore, likely to fall 

in the range between $9.7 million (low 

estimate) to $24.8 million (high 

estimate). Other commenters (Exs. 5, 45, 

51) proposed use of the Voluntary 

Protection Program Star site annual 

report and ISM annual self-evaluations 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6887 

to meet the requirement for annual 

evaluations. The commenters also 

proposed integration of the submissions 

associated with the worker safety and 

health program proposed in this rule 

with the requirements of these other 

programs in order to reduce costs. DOE 

notes that a contactor may use these 

programs if they meet the requirements 

of this rule, and are approved by the 

Head of DOE Field Element. 

Section 851.11(c)(3) of the final rule 

describes contractor requirements for 

incorporating changes, conditions, or 

standards into the worker safety and 

health program as directed by DOE. Two 

commenters (Exs. 15, 27) suggested that 

to ensure consistency between this 

provision and existing DEAR clauses 

and contract terms and conditions, the 

following language should be added to 

the final rule: ‘‘* * * consistent with 

DEAR 970.5204–2, Laws, Regulations 

and DOE Directives (December, 2000) 

and associated contract clauses.’’

Similarly, other commenters (Exs. 16, 

36, 42, 49) questioned the 

appropriateness of this provision in a 

regulatory enforcement document. DOE 

notes that Part 851 establishes 

regulatory requirements and is 

independent of any contractual 

requirements. Accordingly, the 

obligation of a contractor to implement 

the regulatory requirements in Part 851 

is not dependent on the existence of a 

contractual obligation. In response to 

the comments, DOE has modified final 

rule section 851.11(c)(3) to make it clear 

that any contractual action directed by 

the Department must be consistent with 

these regulatory requirements. 

A few commenters (Exs. 16, 42, 48) 

sought clarification of how the potential 

changes envisioned in this section of the 

rule would be directed. One commenter 

(Ex. 42) recommended that changes to 

the worker safety and health program 

plan be agreed to by both the contractor 

and DOE. Another commenter (Ex. 48) 

questioned whether only the Cognizant 

Secretarial Officer would be authorized 

to direct the incorporation of standards 

into the contractor’s worker safety and 

health program. A third commenter (Ex. 

16) sought clarification of whether DOE 

direction would emanate from the same 

organizational level that is specified for 

approval of exemptions. DOE 

acknowledges these concerns and 

clarifies its intent with the provision 

under final rule section 851.11(c)(3) that 

the Head of the DOE Field Element will 

direct the incorporation of changes into 

contractors’ worker safety and health 

programs consistent with the approval 

authority established in section 851.11. 

Section 851.11(d) of the final rule 

requires the contractor to notify any 

associated labor organizations of the 

development and implementation of the 

worker safety and health plan and 

updates and, upon request, bargain with 

the labor organizations on 

implementation of Part 851 in a manner 

consistent with Federal labor laws. This 

section is included to ensure that 

worker safety and health programs are 

developed and implemented consistent 

with the requirements imposed by the 

National Labor Relations Act (NLRA) on 

employers in this context, and not to 

create obligations in excess of those that 

would be found in such circumstances 

under the NLRA. 

DOE included this provision in the 

final rule in response to concerns raised 

about the need for involvement of 

workers or worker representatives in the 

development and implementation of 

contractor worker safety and health 

programs. Specifically, one commenter 

(Ex. 54) expressed concern that 

supplemental proposed section 851.101 

did not include the means for workers 

or their representatives to be involved in 

the development of worker safety and 

health programs. The means for workers 

or their representatives to be involved in 

the development and implementation of 

the worker safety and health programs 

are noted in the following sections. 

Section 851.12—Implementation 

Section 850.12(a) of the final rule 

requires contractors to implement the 

requirements of Part 851. Three 

commenters (Exs. 28, 45, 51) suggested 

that the worker safety and health 

program should include an 

implementation schedule, since all 

activities required by the program 

cannot be implemented upon 

approval—especially with respect to 

subcontractor implementation of the 

contractor’s approved program. In 

response to the commenters’ concern, 

DOE notes that final rule section 

851.11(a) requires contractors to submit 

the worker safety and health program 

for approval within 380 days of the final 

publication date of the rule; final rule 

section 851.11(b) ensures DOE approval 

of the plan within 90 days of receipt of 

the contractor’s submission; and final 

rule section 851.13(a) allows contractors 

to achieve compliance with the 

approved worker safety and health 

program within 470 days of the 

publication date of the rule. DOE 

believes this implementation schedule 

provides sufficient time for contractors 

to achieve compliance with the final 

rule requirements, particularly since the 

rule closely mirrors DOE Order 440.1A, 

an order that has been in place for over 

a decade, and contractors are familiar 

with its requirements. 

One commenter (Ex. 42) suggested 

that any DOE implementation guidance 

to be developed for the rule should only 

be enforceable if a contractor elects to 

place those requirements in the worker 

safety and health program plan 

submitted to DOE. DOE agrees with this 

suggestion and confirms that worker 

safety and health guidance materials 

would only be enforceable against a 

DOE contractor if included in the 

contractor’s approved program. DOE 

notes that a guidance document is 

intended to be informative but not 

mandatory. However, while a contractor 

need not follow the approach in a 

guidance document, the contractor does 

have an obligation to regulatory 

requirements in the rule and the worker 

safety and health programs approved by 

DOE by taking actions that are necessary 

and sufficient to achieve full 

compliance. Failure to take such action 

could be grounds for an enforcement 

action. 

Section 851.12(b) of the final rule 

further notes that nothing in Part 851 

precludes contractors from taking 

additional protective action determined 

necessary to protect the safety and 

health of workers. This section 

recognizes that, depending on the 

circumstances of the work, responsible 

employers may have to take other 

actions to protect their workers. DOE 

does not intend to preclude such actions 

by the provisions of the rule. DOE 

recognizes that individuals responsible 

for implementing worker safety and 

health must use their professional 

judgment in protecting the safety and 

health of workers; nothing in the rule 

should be viewed as relieving these 

individuals of their professional 

responsibility to take whatever actions 

are warranted to protect the health and 

safety of the workforce. 

Section 851.13—Compliance 

Section 850.13(a) of the final rule 

requires contractors to achieve 

compliance with all requirements of 

Subpart C of Part 851 and their 

approved worker safety and health 

programs no later than 470 days after 

the date of publication of the final rule 

in the Federal Register. 

Several commenters expressed 

concern over the supplemental proposal 

requirement for compliance with the 

rule by January 26, 2006, suggesting that 

the date be modified (Exs. 13, 25, 29, 36, 

42, 45, 51, 57) and recommending 

alternate lengths of time for 

implementation from 180 days after 

plan approval (Ex. 47) to one year 

following rule promulgation (Exs. 28, 

49). DOE has clarified in final rule 

section 851.13(a) that contractors must 


cprice-sewell on PROD1PC66 with RULES2
6888 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

achieve compliance within 470 days 

after the date of publication of the rule. 

Section 850.13(b) of the final rule 

allows contractors who have established 

written worker safety and health 

programs, ISM descriptions pursuant to 

the DEAR Clause, or an approved Work 

Smart Standards process before the date 

of issuance of the final rule to use them 

to meet the worker safety and health 

program requirement of this part if those 

programs, descriptions, and processes 

are approved by the Head of the DOE 

Field Element. This approval by the 

Head of the DOE Field Element is 

contingent upon the contractor 

providing written documentation which 

identifies the specific portions of these 

programs, descriptions, and processes 

that are applicable, and additional 

requirements or implementation 

methods to be added in order to satisfy 

the requirements of this Part to establish 

a safe and healthful workplace. If an 

existing program is used to meet the 

requirement for a worker safety and 

health program, the contractor has a 

regulatory obligation to comply with 

that program. 

One commenter (Ex. 27) requested 

that a grandfather provision be added 

for existing programs developed under 

the Work Smart Standards program. 

DOE notes that a grandfather provision 

for existing programs is established 

under final rule section 851.13(b). This 

provision was added to address 

comments (Exs. 15, 20, 26, 27, 29, 45, 

51) regarding DOE’s intent to 

acknowledge or accept contractor efforts 

related to existing worker protection 

initiatives within the DOE community 

as part of the worker safety and health 

program required under this rule. 

C. Subpart C—Specific Program 

Requirements 

Section 851.20—Management 

Responsibilities and Workers Rights and 

Responsibilities 

Section 851.20 establishes 

management responsibilities and 

workers’ rights related to worker safety 

and health in the workplace. Contractor 

managers must commit to the safety and 

health of their workforce. Section 

851.20(a) codifies managers’

responsibilities, while final rule section 

851.20(b) codifies workers’ rights. DOE 

received a substantial number of 

comments on section 851.20 (previously 

supplemental proposed section 851.10). 

Although many of the comments were 

couched in terms of workers’ rights, a 

large proportion actually related to a 

combination of workers’ rights and 

management responsibilities toward 

worker safety and health. Other 

comments touched on issues with 

broader implications that were 

applicable to this section, as well as to 

other requirements established 

elsewhere in this final rule (or other 

rules). Modifications made to section 

851.20 in this final rule complicated 

categorization of the comments on a 

provision-by-provision basis. Thus, 

comments on this section are grouped 

by general topic or sentiment and are 

preceded by the following summary of 

both sections 851.20(a) and 851.20(b) in 

the final rule. 

Section 851.20(a) requires a contractor 

to ensure its managers at a covered 

workplace (1) establish written policy, 

goals, and objectives for the worker 

safety and health program; (2) use 

qualified worker safety and health staff 

(e.g., a certified industrial hygienist) to 

direct and manage the program; (3) 

assign worker safety and health program 

responsibilities, evaluate personnel 

performance, and hold personnel 

accountable for worker safety and health 

performance; (4) provide a mechanism 

to involve workers and their elected 

representatives in the development of 

the worker safety and health program 

goals, objectives, and performance 

measurement and in the identification 

and control of hazards in the workplace; 

(5) provide workers with access to 

information relevant to the worker 

safety and health program; (6) establish 

procedures for workers to report, 

without reprisal, job-related fatalities, 

injuries, illnesses, incidents, and 

hazards and make recommendations 

about appropriate ways to control those 

hazards; (7) provide for prompt 

response to such reports and 

recommendations; (8) provide for 

regular communication with workers 

about workplace safety and health 

matters; (9) establish procedures to 

permit workers to stop work or decline 

to perform an assigned task because of 

a reasonable belief that the task poses an 

imminent risk in circumstances where 

there is insufficient time to use normal 

hazard reporting and abatement 

procedures; and (10) inform workers of 

their rights and responsibility by 

appropriate means, including posting 

the DOE-designated Worker Protection 

Poster. 

Workers at DOE sites currently have 

a number of rights related to ensuring a 

safe and healthful workplace as 

specified under DOE Order 440.1A. 

Section 851.20(b) codifies these rights 

and makes it clear that workers may 

exercise them without fear of reprisal. 

Specifically, the regulations maintain 

the rights of workers to (1) participate in 

activities described in section 851.20 on 

official time; (2) have access to DOE 

safety and health publications; the DOEapproved worker safety and health 

program for the covered workplace; the 

standards, controls and procedures 

applicable to the covered workplace; the 

safety and health poster that informs the 

worker of relevant rights and 

responsibilities; recordkeeping logs (to a 

limited extent); and the appropriate 

DOE form that contains the employee’s 

name as the injured or ill worker; (3) be 

notified when monitoring results 

indicate the worker was overexposed to 

hazardous materials; (4) observe 

monitoring or measuring of hazardous 

agents, and have the results of their own 

exposure monitoring; (5) have an 

employee-authorized representative 

accompany DOE personnel during an 

inspection of the workplace or consult 

directly with the DOE personnel if no 

representative is available; (6) request 

and receive results of inspections and 

accident investigations; (7) express 

concerns related to worker safety and 

health; (8) decline to perform an 

assigned task because of a reasonable 

belief that, under the circumstances, the 

task poses an imminent risk of death or 

serious bodily harm coupled with a 

reasonable belief that there is 

insufficient time to seek effective 

redress through the normal hazard 

reporting and abatement procedures; 

and (9) stop work on discovering 

employee exposures to imminently 

dangerous conditions or other serious 

hazards, provided that any stop work 

authority is exercised in a justifiable 

and responsible manner in accordance 

with established procedures. 

The comments provided to DOE on 

section 851.20 covered a wide range of 

issues. Most related directly to the 

management responsibility and workers’

rights provisions of this section. Certain 

comments, however, related only 

tangentially to section 851.20 (usually 

on the basis of workers’ rights) and 

sometimes resulted in modifications to 

other sections of this rule. For example, 

several commenters (Exs. 10, 30, 40, 54, 

55, 60) requested the incorporation of 

various worker rights related to the 

variance process. In general, DOE agrees 

that workers should be involved in the 

variance process and has included 

specific rights related to this process in 

subpart D to the final rule. A more 

detailed discussion of these comments 

and DOE’s responses appears in the 

section-by-section discussion for 

Subpart D. Similarly, a commenter (Ex. 

11) believed that worker rights should 

include the right to receive and 

participate in training required by 

OSHA standards and other 

requirements. The commenter expressed 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6889 

concern that no provision exists in the 

rule to train workers in hazard 

recognition such that they can recognize 

hazards posing ‘‘imminent risk of death 

or serious bodily harm.’’ The final rule 

as specified in section 851.23 requires 

compliance with OSHA standards 

(including standards that specify 

training requirements). In addition, the 

final rule contains more detailed 

provisions for training, in final rule 

section 851.25, which requires 

employers to implement a training 

program for workers. 

The same commenter (Ex. 11) 

believed that worker rights should also 

include the right to contact the National 

Institute for Occupational Safety and 

Health (NIOSH) to request a health 

hazard evaluation (HHE) based on 

concerns about toxic effects of a 

workplace substance. DOE notes that 42 

CFR 85 allows employers or authorized 

representatives of employees to request 

HHEs by NIOSH under section 20(a)(6) 

of the Occupational Safety and Health 

Act of 1970. Hence, DOE feels it is not 

necessary to separately address this 

issue in this rule. 

Another commenter (Ex. 29) 

questioned whether supplemental 

proposed section 851.10 on worker 

rights would conflict with 10 CFR 708 

(DOE Contractor Employee Protection 

Program). The commenter also 

wondered whether 10 CFR 708 would 

continue to apply to worker rights with 

respect to nuclear and radiological 

safety issues once supplemental 

proposed section 851.10 was in effect 

for all other safety and health issues. 

DOE believes that the final rule has no 

impact on the applicability of 10 CFR 

708. Specifically, 10 CFR 708 still 

applies to complaints of reprisals 

against DOE contractor employees 

under certain conditions. In particular, 

it applies for employee disclosures, 

participations, or refusals related to 

safety and health matters, if the 

underlying procurement contract 

(described in 10 CFR section 708.4) 

contains a clause requiring compliance 

with all applicable safety and health 

regulations and requirements of DOE 

(48 CFR 970.5204–2c). Furthermore, 10 

CFR 708 provides employees with a 

mechanism to obtain restitution from 

the contractor in the event of a finding 

of a reprisal under the 10 CFR 708 rule, 

but does not allow for civil or contract 

penalty against the contractor for 

violation of the workers’ safety and 

health rights. This final rule provides 

DOE with the mechanism to assess civil 

or contract penalties against contractors 

in such cases. 

As was mentioned previously, DOE 

received numerous comments that relate 

to section 851.20 as a whole, or that 

relate to multiple provisions of this 

section. In one such comment (Ex. 30), 

the commenter requested that the term 

‘‘worker’’ be defined as an hourly 

worker who performs line functions in 

areas to be inspected. Additionally, the 

commenter believed that the definition 

of ‘‘worker’’ should not include lawyers, 

supervisors, and managers for the 

contractor, since managerial and legal 

personnel have an interest in 

minimizing penalties and cannot best 

represent worker interests during 

inspections. As discussed previously, 

worker has been defined to be 

contractor employees performing work 

at a covered workplace in furtherance of 

a DOE mission. 

A few commenters (Exs. 40, 47, 55) 

asserted that the rule should incorporate 

worker involvement in the development 

of worker safety and health programs. 

One of the commenters (Ex. 47) believed 

that supplemental proposed section 

851.10 should be revised to indicate that 

it is not just a workers’ right, but also 

their responsibility to comply with the 

provisions in supplemental proposed 

section 851.10. The commenter 

recommended that the section be 

renamed ‘‘Worker rights and 

responsibilities.’’ DOE agrees with this 

comment and has renamed section 

851.20 of the final rule ‘‘Management 

responsibilities and worker rights and 

responsibilities’’ to highlight the 

collaborative nature of the worker safety 

and health process. As a related 

modification, DOE has named the 

subsection on workers rights—section 

851.20(b)—‘‘Workers Responsibilities 

and Rights.’’ Furthermore, final rule 

section 851.20(a)(4) requires 

management to provide a mechanism to 

involve workers and their elected 

representatives in the development of 

the worker safety and health program 

goals, objectives, and performance 

measures and in the identification and 

control of hazards in the workplace. 

DOE also included provision 

851.20(a)(8), which requires managers to 

provide for regular communication with 

workers about workplace safety and 

health matters. 

Also concerned with worker rights, 

one commenter (Ex. 11) suggested that 

workers be given the right to provide 

comments or testimony on possible 

toxic effects of substances in the 

workplace. DOE agrees that workers 

should be able to provide input on 

matters that affect them, and this final 

rule contains provisions to further this 

objective. Section 851.20(a)(4) requires 

management to provide a mechanism to 

involve workers and their elected 

representatives in the development of 

the worker safety and health program 

goals, objectives, and performance 

measures, and in the identification and 

control of hazards in the workplace. 

Additionally, section 851.20(b)(7) 

establishes the right for workers to 

express concerns related to worker 

safety and health. For issues that 

involve rulemaking regarding worker 

exposure to a hazardous substance, the 

Administrative Procedures Act gives the 

public (including workers) the right to 

comment on rulemaking activities; DOE 

does not believe it necessary to address 

this issue more specifically in the rule. 

DOE received several comments 

related to retribution and reprisal as a 

result of workers exercising their rights. 

Seven commenters (Exs. 11, 21, 30, 40, 

44, 60, 62) expressed concern over 

retribution against workers who report 

violations, injuries, and unsafe work 

conditions and felt the regulation 

should preclude discrimination against 

any employee for notifying DOE or 

requesting an investigation. An eighth 

commenter (Ex. 15) qualified a similar 

concern by suggesting that security- and 

confidentiality-related issues be 

considered in granting worker rights. 

This commenter suggested that section 

851.20(b) include language that allows 

the worker rights without reprisal, as 

long as their actions are ‘‘consistent 

with non-disclosure, confidentiality and 

security requirements.’’ One commenter 

(Ex. 62) supported anonymous 

notifications and complaints by workers 

to DOE enforcement staff without fear of 

disclosure of identity to nonenforcement personnel. This commenter 

suggested that standardized forms to be 

created for this purpose with an explicit 

option for the complainant to select 

anonymity. Furthermore under the 

Privacy Act the commenter proposed 

that penalties should apply to 

individuals who breach the employee’s 

right to confidentiality in making a 

complaint. This commenter argued that 

such breaches should be considered as 

civil violations. DOE addresses these 

concern related to retribution and 

reprisal in the final rule by including 

sections 851.20(a)(6), 851.20(b)(7), and 

851.20(b)(9). The first of these three 

requires management to establish 

procedures for workers to report, 

without reprisal, job-related fatalities, 

injuries, illnesses, incidents, and 

hazards and make recommendations 

about appropriate ways to control those 

hazards. Sections 851.20(b)(7) and 

851.20(b)(9) give workers the right, 

again without reprisal, to express 

concerns related to worker safety and 

health and to stop work if they discover 

employee exposures to imminently 


cprice-sewell on PROD1PC66 with RULES2
6890 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

dangerous conditions or other serious 

hazards. DOE notes that each of these 

provisions are enforceable under the 

rule and that contractors are subject to 

both civil and contract penalty for 

noncompliance with these provision. 

Further, provision 851.40(c) allows 

workers or worker representatives to 

remain anonymous upon filing requests 

for investigation or inspection. 

Notwithstanding a worker’s right to 

remain anonymous, DOE notes that 

penalties could not be assessed under 

the Privacy Act. Such a complaint 

would not be a part of a system of 

records and would not be placed in any 

sort of file identifiable by name, 

employee number or other unique 

identifier. Without those two 

qualifications, such a complaint would 

not be covered by the Privacy Act. 

Several commenters asked DOE to 

clarify or expand the rule to improve the 

flow and exchange of information and 

documentation. For example, one 

commenter (Ex. 54) requested that the 

rule require communication pathways 

between contractors, workers, DOE, and 

worker representatives. DOE agrees with 

this comment and the final rule 

includes section 851.20(a)(8), which 

requires contractors to provide for 

regular communication with workers 

about worker safety and health matters. 

DOE will also provide guidelines to 

assist contractors in developing 

appropriate communication methods in 

guidance materials to be published 

shortly after promulgation of this final 

rule. DOE believes, however, that 

stipulating the exact means and 

methods for achieving this 

communication in an enforceable 

regulation would be unnecessarily 

restrictive, could undermine existing 

communication mechanisms, and could 

hinder contractor creativity in future 

program development efforts. 

Several commenters (Exs. 13, 16, 29, 

30, 36, 37, 54, 62) expressed concern 

over worker rights to various forms of 

information, as well as manager 

obligations to provide workers with 

certain information. One commenter 

(Ex. 62) requested that employers 

should be required to post a DOE Safety 

Rule Notification Poster describing Part 

851 that would inform workers of rule 

provisions, the penalties of noncompliance, how to obtain more 

information and an 800 toll-free number 

to call. In addition, the commenter 

supported the idea of informative 

workshops to explain the rule to 

workers as part of training programs. 

DOE addresses this concern in the final 

rule by including section 851.20(a)(10), 

which requires contractor managers to 

inform workers of their rights and 

responsibilities by appropriate means, 

including posting the DOE-designated 

Worker Protection Poster in the 

workplace where it will be accessible to 

all workers. Although the contractor 

may provide electronic access to the 

poster, it must still post the poster in 

areas accessible to workers. DOE further 

strengthened workers’ right to 

information through final rule section 

851.20(b)(6), which allows workers to 

request and receive results of inspection 

and accident investigations. 

Two commenters (Ex. 29, 60) thought 

it important that the worker safety and 

health program be available to workers. 

In response to these comments, final 

rule section 851.20(a)(5), DOE requires 

that management provide workers with 

access to information relevant to the 

worker safety and health program. DOE 

leaves to the contractor the discretion to 

determine the appropriate format, 

which must be accessible to all workers. 

DOE considers electronic means 

accessible, provided that all employees 

have access to, and the knowledge to 

use, computers. 

Still considering the flow and 

exchange of information, two 

commenters (Exs. 16, 29) requested 

clarification on what DOE considers to 

be the ‘‘DOE safety and health 

publications’’ and the ‘‘standards, 

controls, and procedures’’ that were 

specified in supplemental proposed 

section 851.10(b)(1). In a related 

question, one of these commenters (Ex. 

29) asked whether the documents to 

which workers must be provided access, 

as specified in supplemental proposed 

section 851.10(b)(1), may be provided 

‘‘on request’’ or whether they must 

always be available. The commenter 

noted that the documents sometimes 

include costly ANSI standards. DOE 

intends the documents to be available 

and provided upon request to 

employees for review. DOE does not 

intend for the employer to provide each 

employee with his/her own copy of the 

standards. Note that DOE would expect 

the contractor to have access to (or 

copies of) all the standards with which 

the contractor must comply. 

In a more general comment about the 

right of worker representatives to have 

the same access to information as 

workers, two commenters (Exs. 11, 54) 

recommended that the rule clearly state 

that disclosure affects workers and their 

unions. Specifically, these commenters 

believe that worker representatives 

should have the right to request 

information, observe monitoring, 

request relevant exposure and medical 

records and receive results within 15 

days, participate in the worker safety 

and health process, or create joint 

worker safety and health committees. 

DOE, through final rule section 

851.20(a)(4), requires management to 

provide a mechanism to involve 

workers and their elected 

representatives in the development of 

the worker safety and health program 

goals, objectives, and performance 

measures, and in the identification and 

control of hazards in the workplace. 

Further, the final rule, as specified in 

section 851.11(d), requires contractors 

to give labor organizations representing 

workers for collective bargaining timely 

notice of development and 

implementation of the worker safety and 

health program and any updates, as well 

as bargain on implementation issues in 

a manner consistent with federal labor 

laws upon timely request. 

Several commenters (Exs. 11, 30, 44, 

60, 62) requested that workers have the 

right to participate in enforcement 

actions. Three of these commenters 

(Exs. 44, 60, 62) recommended that 

citations be posted and that employees 

be given the opportunity to comment on 

proposed enforcement actions. One of 

these commenters (Ex. 62) argued that 

such provisions were comparable to 

worker rights related to OSHA 

enforcement actions. Another 

commenter (Ex. 30) asked that DOE 

incorporate worker participation as a 

party in settlement agreements. The 

fourth commenter (Ex. 11) asserted that 

workers should have the right to be 

involved in any meetings or hearings to 

discuss objections the employer has to 

allegations of safety and health 

violations, the assessment of penalties, 

and/or discussions or changes in 

abatement plans, procedures, or 

deadlines. DOE notes that Part 851’s 

enforcement process is based on one 

that has been successfully used for over 

ten years with respect to the DOE 

Nuclear Safety Requirements, a process 

which does not contemplate such 

participation. DOE further notes that the 

OSHA enforcement process does not 

involve employee participation to the 

degree requested by the commenters. In 

addition, section 851.40(c) does provide 

worker representation, such as the right 

to request the initiation of an inspection 

or investigation. DOE concludes that the 

degree of employee participation in the 

enforcement process is appropriate and 

that the specific commenter requests for 

additional worker involvement in the 

enforcement process would not be 

appropriate. 

DOE received several comments 

regarding multiple issues related to 

exposure monitoring. Three commenters 

(Exs. 16, 54, 55) worried that the 

language in supplemental proposed 

section 851.10(b)(3), which would give 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6891 

workers the right to observe monitoring 

or measuring of hazardous agents, could 

be misinterpreted. Specifically, the 

commenters believed this section could 

be interpreted as implying that specific 

monitoring is required for each 

individual worker (instead of allowing 

representative sampling), or as 

suggesting that contractors do not have 

to share monitoring results with 

unmonitored workers performing the 

same job. These commenters felt that 

representative sampling results should 

be provided to all affected workers. 

However, two other commenters (Exs. 

26, 49) disagreed, asserting that the 

requirement should be limited to 

providing workers with only their own 

results, in keeping with the Privacy Act. 

The commenters believed that workers 

are unlikely to be qualified to interpret 

monitoring results for the whole 

workplace. To ensure timely transfer of 

information, one commenter (Ex. 16) 

recommended that DOE specify a time 

frame within which a contractor should 

provide employees with exposure 

results (e.g., results of applicable 

exposure monitoring must be provided 

to employees within 90 days following 

analysis). Further, one commenter (Ex. 

49) believed that allowing workers to 

enter operational areas ‘‘to observe 

monitoring’’ conflicts with the exposure 

reduction and minimization aspects of 

Part 850 and RADCON As Low As 

Reasonably Achievable Principles. With 

respect to Privacy Act concerns, DOE 

notes an individual’s test results would 

be protected. The only way that test 

results could be disseminated to all 

workers in an aggregated manner is if 

they are complied with the following 

language pursuant to 5 U.S.C. 552(b)(5): 

Disclosure may be made to a recipient 

who ‘‘* * * has provided the agency 

with advance written assurance that the 

record will be solely used as a statistical 

research or reporting record, and the 

record is to be transferred in a form that 

is not individually identifiable.’’

DOE received two comments on the 

use of the term ‘‘overexposure’’ as it 

relates to employee notification of 

results exceeding allowable exposure 

levels. One of these commenters (Ex. 54) 

suggested that the phrase ‘‘was 

overexposed to hazardous materials’’ in 

supplemental proposed section 

851.10(b)(2) be replaced with ‘‘exposure 

exceeded limits established by OSHA.’’

DOE disagrees, that a change in wording 

is necessary since the term overexposed 

is commonly understood to mean 

exposures above an established limit 

(whether set by OSHA, ACGIH, or DOE). 

The other commenter (Ex. 11) believes 

that employees should be informed of 

all potential hazards before they are 

exposed, and not only when there is 

overexposure as specified in 

supplemental proposed section 

851.10(b)(2). DOE notes that the 

reference to ‘‘overexposure’’ in final rule 

section 851.20(b)(3) applies specifically 

to notification of monitoring results. 

Other sections of the rule—sections 

851.20(b) and 851.25—require employee 

training and access to information on 

workplace hazards and controls. 

The right of workers to participate in 

monitoring and inspection activities 

attracted several comments. DOE 

received several comments (Exs. 13, 16, 

29, 36, 42, 49, 57) expressing the general 

concern that workers would abuse the 

rights afforded to them in sections 

851.20(b)(1), (b)(4), and (b)(5), which 

give workers the right to participate in 

activities, observe monitoring results, 

and accompany DOE personnel during 

an inspection. The commenters felt that 

these activities could result in 

disruption of work. DOE notes the 

commenters concerns and has modified 

the language in the final rule. 

Worker rights and employer 

responsibilities during inspections also 

attracted a number of comments. Many 

commenters (Exs. 11, 13, 29, 36, 39, 42, 

47, 49, 54, 57) expressed concern about 

a worker’s right to accompany DOE 

personnel during an inspection of the 

workplace. The commenters believed 

that the rule should include access 

requirements to be met in order to 

accompany DOE personnel on 

inspection. For example, commenters 

recommended that a designated 

employee representative or an 

appropriate safety person, organization, 

or entity should accompany DOE on 

inspections. DOE agrees that the 

individual accompanying inspectors 

should not be selected arbitrarily. In the 

final rule, section 851.20(b)(5) requires 

that an ‘‘employee-authorized 

representative’’ be allowed to to 

accompany DOE on inspections. When 

no representative is available, the 

inspector must consult with employees 

on matters of worker safety and health. 

Further, section 851.40(c) of the final 

rule establishes the right of worker 

representatives to request an inspection 

or investigation, with supporting 

documentation, based on criteria 

outlined in the section. 

In a related comment, two of the same 

commenters (Exs. 13, 29) suggested that 

allowing workers to go on DOE 

inspections raises implementation 

concerns (for example, regarding worker 

and contractor notification of 

inspections and inspector qualification 

standards to ensure consistency of 

inspections across facilities). DOE notes 

that workers are entitled to reasonable 

assurances that the inspections are 

carried out in an appropriate manner 

and notes that in final rule section 

851.40(d) includes provisions for 

notifying contractors of an enforcement 

inspection. DOE believes, however, that 

establishing qualification standards for 

DOE federal staff is beyond the scope of 

this rule; instead, DOE will follow 

appropriate personnel qualification 

standards for federal staff. DOE also 

believes that establishing detailed 

provisions on how contractors must 

implement specific provisions of the 

rule (such as how to notify workers of 

an inspection) would be too 

prescriptive. DOE believes that 

contractors are the entities best able to 

determine appropriate implementation 

procedures for their own sites and 

workforce. Of course, contractor failure 

to comply with the worker rights 

provisions of the final rule could subject 

the contractor to an enforcement action 

under the rule. 

DOE also received comments related 

to worker rights after inspections are 

completed. Two commenters (Exs. 36, 

49) expressed concern about a worker’s 

right to request and receive results of 

inspection and accident investigations. 

One of these commenters (Ex. 36) 

described the current policy of some 

facilities to allow workers to obtain such 

results on a need-to-know basis only. 

The other commenter (Ex. 49) believed 

that workers can only request and 

receive results that are not exempt from 

disclosure under the Privacy Act or the 

Freedom of Information Act. An 

additional commenter (Ex. 29) 

questioned whether these ‘‘results’’

include DOE records or just contractor 

records. DOE notes that a worker can 

only receive information or results, for 

his or her own personal record. The 

worker must designate in writing a 

representative to receive personal 

information. 

One commenter (Ex. 11) believed that 

worker rights should include the right to 

request action from an employer to 

correct hazards or violations even if the 

hazards are not violations of specific 

OSHA standards or other specific 

requirements. DOE notes that final rule 

section 851.20(b)(7) gives workers the 

right to express concerns about worker 

safety and health issues. DOE intends 

for this section to include all health and 

safety concerns, not just hazards 

addressed by specific OSHA standards. 

DOE received two comments related 

to proposed provisions, retained as 

sections 851.20(a)(9) and 851.20(b)(9) in 

this final rule, which respectively cover 

managers’ responsibilities and workers’

rights to stop work when a serious 


cprice-sewell on PROD1PC66 with RULES2
6892 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

hazard is discovered or believed to be 

present. One commenter (Ex. 28) 

objected to the use of the word 

‘‘discover’’ in supplemental proposal 

section 851.10(b)(8), believing that such 

a term suggests willful deceit or 

ignorance on the part of managers. The 

commenter stated that while stop work 

authority is needed, it should be 

implemented in a controlled manner in 

accordance with ‘‘established 

procedures, which include but should 

not be limited to pre-work briefings of 

prevailing working conditions.’’ DOE 

intends for the term ‘‘discover’’ in final 

rule section 851.20(b)(9) to imply that 

the hazard was not previously identified 

through workplace assessment and 

hazard identification procedures. DOE 

also expects that any identified hazards 

would have been mitigated and 

controlled prior to allowing workers to 

proceed with activities in a work area. 

DOE agrees that the rights granted under 

this provision should be exercised in a 

controlled manner. Hence, section 

851.20(a)(9) of the final rule requires 

contractors to develop appropriate 

procedures to implement stop work 

authority. 

In related comments, three 

commenters (Exs. 11, 28, 48) thought 

that the language in supplemental 

proposed section 851.10(b)(8) was too 

vague, broad, or subjective. DOE notes 

that this stop work authority provision 

is similar to the provisions in DOE 

Order 440.1A. DOE is not aware of any 

problems with the implementation of 

this provision under 440.1A and 

therefore, has retained this provision in 

the final rule. 

Another commenter (Ex. 54) believed 

that worker representatives should be 

allowed to participate in a review of 

stop work conditions. The commenter 

suggested that such issues are resolved 

more quickly and effectively when 

employer and employee representative 

(as well as external experts such as 

OSHA and DOE Environment, Safety 

and Health) are involved. DOE 

acknowledges these concerns and 

believes the concerns are addressed by 

existing provisions of the final rule. 

Specifically, section 851.20(a) 

establishes a wide array of management 

responsibilities for ensuring worker 

rights under and involvement in the 

safety and health program. Final rule 

section 851.20(a)(9) further requires 

contractors to develop appropriate stop 

work procedures for workers and 

section 851.20(a)(7) requires contractors 

to provide prompt response to worker 

reports of workplace hazards. DOE 

believes that these combined provisions 

provide DOE contractors an adequate 

framework to develop appropriate stop 

work provisions. Within this 

framework, DOE contractors are free to 

develop stop work procedures that they 

feel most effectively protect workers 

(and empower workers to protect 

themselves) and allow for prompt 

corrective action in the event of an 

imminent danger situation. Since this 

provision has been required of DOE 

contractors under DOE Order 440.1A for 

the past 10 years, DOE would expect 

contractors to apply existing stop work 

procedures with slight modifications if 

deemed necessary based on lessons 

learned from 10 years of experience 

implementing this provision. 

Section 851.21—Hazard Identification 

and Assessment 

Section 851.21 establishes the 

contractor’s duty to enact procedures for 

identifying hazards and assessing the 

related risks in the workplace. This 

section lists activities contractors must 

perform as part of their hazard and risk 

assessment procedures (e.g., conducting 

workplace monitoring, evaluating 

operations). Under this section, 

contractors must also provide a list of 

closure facility hazards and associated 

controls to the Head of DOE Field 

Element, who will accept the controls or 

direct specific additional actions 

described in this section. 

DOE received a number of comments 

that expressed concern about the 

subjectivity of the supplemental 

proposed section 851.100(b) language 

concerning identification and 

evaluation of workplace hazards, and 

particularly the requirement in section 

851.100(b)(1)(iii) to evaluate potential 

hazards that may arise from 

unforeseeable conditions. A number of 

commenters (Exs. 13, 15, 16, 20, 25, 27, 

31, 36, 42, 49) recommended that the 

supplemental proposed requirement to 

evaluate potential hazards from 

unforeseeable conditions be eliminated 

or replaced, based on their opinion that 

this is an ambiguous, general 

requirement that unreasonably puts 

contractors in the position of trying to 

foresee the unforeseeable. DOE has 

eliminated the requirement in the final 

rule. DOE also has modified the final 

rule to include section 851.21, which 

provides specific requirements to guide 

contractors’ hazard identification and 

risk assessment activities. 

Section 851.21(a) requires contractors 

to establish procedures to identify 

existing and potential workplace 

hazards and assess the risk of associated 

workers’ injury and illness. These 

procedures must include methods to: (1) 

Assess worker exposure to chemical, 

physical, biological, or safety workplace 

hazards through monitoring; (2) 

document assessment for workplace 

hazards using recognized exposure 

assessment and testing methodologies 

and using accredited and certified 

laboratories; (3) record observations, 

testing and monitoring results; (4) 

analyze designs of new facilities and 

modifications to existing facilities and 

equipment for potential workplace 

hazards; (5) evaluate operations, 

procedures, and facilities to identify 

workplace hazards; (6) perform routine 

job activity-level hazard analysis; (7) 

review site safety and health experience 

information; and 8) consider interaction 

between workplace hazards and other 

hazards such as radiological hazards. 

Most of the comments that DOE 

received on this section relate to the 

scope of the required hazard assessment 

procedures. Two commenters (Exs. 42, 

47) suggested that it is not feasible to 

consider all hazards, as specified in 

supplemental proposed section 

851.100(b)(1)(v), and that only relevant 

hazards should be considered. DOE 

believes that to be effective, a worker 

safety and health program must 

establish and implement procedures 

that will identify potential workplace 

hazards and evaluate the associated 

risks. In the final rule, section 851.21(a) 

requires that such procedures be 

established. Contractors are to identify 

hazards that are to be identified by 

assessing worker exposures to chemical, 

physical, biological and safety hazards 

identified through appropriate 

workplace monitoring and job activity 

level hazard analysis. These methods 

are designed to identify the hazards to 

which workers may be exposed. 

Through this process, DOE expects that 

contractors will be able to determine 

which hazards are relevant to specific 

work situations. 

Two other commenters (Exs. 42, 47) 

expressed concern that supplemental 

proposed section 851.100(b)(1)(vii) to 

(ix) went beyond the scope of the ISMS. 

While the commenters believed that 

these provisions were beneficial and 

appropriate for a worker safety and 

health program, they did not believe 

that these provisions should be part of 

the rule. DOE believes that these 

provisions are necessary requirements 

for a contractor’s worker safety and 

health program. In the final rule, 

however, DOE has reorganized these 

provisions to be more consistent with 

the requirements of DOE Order 440.1A, 

which have been in use for the past 10 

years. Accordingly, final rule section 

851.21(a), requires contractors to 

develop procedures using specified 

methodologies (mirroring those 

established in DOE Order 440.1A) to 

assess and document the risk of worker 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6893 

injury and illness associated with 

existing and potential hazards. 

A number of commenters were 

concerned about the extent to which 

Part 851 would apply to radiological 

hazards. Several commenters (Exs. 16, 

20, 31, 36, 42, 47, 48, 49) believed that 

there is no utility in addressing 

radiological hazards in the worker safety 

and health program document since 

they are already considered, and 

controlled through a contractor’s 

Radiation Protection Program and 

Radiation Protection Manual in 

compliance with Price-Anderson 

Nuclear Safety Regulations such as 10 

CFR 835. Two other commenters (Exs. 

13, 39) requested that DOE clarify 

whether Part 851 applies to radiological 

hazards. If so, one of these commenters 

(Ex. 13) wondered whether it is DOE’s 

intent to apply this rule to radiological 

hazards at a lower threshold than 

regulated by 10 CFR 820, 830, or 835. 

In section 851.2(b) of the final rule, DOE 

clarifies that Part 851 does not apply to 

radiological hazards to the extent they 

are regulated by 10 CFR Parts 820, 830, 

and 835. Section 851.21(a)(1) requires 

contractors to develop procedures that 

include methods for identifying and 

assessing hazards related to chemical, 

physical, biological, and safety work 

exposures only. Final rule section 

851.21(a)(8) makes clear the need to 

consider other hazards. 

DOE received a few comments related 

to sampling and laboratory analysis. 

One such commenter (Ex. 16) requested 

that DOE clarify the language in 

supplemental proposed section 

851.100(b)(1)(vii) by defining what 

constitutes ‘‘appropriate workplace 

monitoring’’ (i.e., whether it is in 

relation to the number of samples, the 

frequency/timing of samples, 

qualifications of those conducting the 

sampling, a comparison of results to 

limits, etc.). The commenter 

recommended that ‘‘appropriate’’ either 

be defined objectively or by reference to 

OSHA standards used for workplace 

monitoring. DOE disagrees that more 

specificity is needed, and believes it is 

understood that the term ‘‘appropriate’’

in this case means using recognized 

methods for workplace monitoring such 

as those published by the American 

Industrial Hygiene Association or the 

National Institute for Occupational 

Safety and Health, etc. DOE notes, 

however, its intent to develop 

supplemental guidance material 

following publication of the final rule to 

assist contractors in implementation of 

the rule. 

Other commenters (Exs. 5, 16, 27) 

expressed concern that supplemental 

proposed section 851.100(b)(1)(viii) 

would require the use of accredited or 

certified laboratories. Specifically, one 

of these commenters (Ex. 5) asked if the 

provision for ‘‘documenting assessments 

for chemical, physical, biological and 

safety workplace hazards using 

recognized exposure assessment and 

testing methodologies and use of 

accredited or certified laboratories’’ also 

required contractors to use accredited or 

certified laboratories for performing 

other related activities. Another 

commenter (Ex. 16) believed that certain 

highly contaminated samples may fall 

outside the capabilities of commercially 

available laboratories. Therefore, this 

commenter felt that this provision 

should be either deleted or modified to 

clarify which assessments require 

accredited or certified laboratories, 

which accreditation or certification 

authorities should be used, and what 

the provisions are for frequency and 

equivalency. Both this commenter (Ex. 

16) and another commenter (Ex. 27) 

believed that any requirement for use of 

accredited or certified laboratories 

should be evaluated with respect to 

potential costs versus benefits, since use 

of such laboratories could result in 

increased costs and time. DOE believes 

that the converse would likely be true, 

since not using a certified laboratory 

would involve such efforts as 

establishing quality control and 

quantitative analysis processes etc. 

Therefore, these efforts would likely be 

more costly than using an established 

accredited laboratory. DOE also notes 

that reliance on accredited and certified 

laboratories is consistent with 

requirements established under DOE 

Order 4040.1A, OSHA standards, and 

accepted industrial hygiene professional 

practice. 

One commenter (Ex. 16) requested 

that DOE clarify what kinds of ‘‘safety 

and health information’’ contractors are 

required to review, as referred to in 

supplemental proposed section 

851.100(b). To clarify this, DOE 

provides in final rule section 

851.21(a)(7) that contractors hazard 

identification and assessment 

procedures must include provisions for 

the review of site safety and health 

experience information. DOE anticipates 

that such information could include, but 

may not be limited to, injury and illness 

data, inspection results, accident and 

near miss investigation results and 

trending data, etc. 

Section 851.21(b) requires contractors 

to submit to the Head of DOE Field 

Element a list of closure facility hazards 

and the established controls within 90 

days of identifying such hazards. The 

Head of Field Element, with 

concurrence by the CSO, will have 90 

days to accept the closure facility 

hazard controls or direct additional 

actions to either (1) achieve technical 

compliance or (2) provide additional 

controls to protect the workers. DOE 

intends section 851.21(b) to be 

implemented in a manner that is 

consistent with the provision in the 

NDAA on taking into account the 

special circumstances associated with 

facilities that are or will be permanently 

closed, demolished or subject to title 

transfer and that minimizes the need for 

variances. 

One commenters (Ex. 28) believed 

that DOE sites within one year of a 

formal declaration of site closure should 

be exempt from compliance with Part 

851 and a separate exclusion to this 

effect should be included under section 

851.1. Another commenter (Ex. 39) 

asked for clarification of the types of 

‘‘special circumstances’’ that should be 

considered for a workplace that is (or is 

expected to be) permanently closed, 

demolished, or transferred to another 

entity. This commenter (Ex. 39) also felt 

that the supplemental proposed section 

851.100(b)(3)(ii), needed to be clarified 

with respect to the types of 

circumstances considered relevant to a 

proposal for modified requirements at 

sites scheduled for closure, demolition, 

or transfer. DOE agrees that the original 

supplemental proposed language related 

to what is now termed ‘‘closure 

facilities’’ was unclear, and has revised 

this section of the final rule. In final rule 

section 851.21(b), DOE requires 

submission of a list of closure facility 

hazards that cannot be fully abated or 

controlled within 90 days after 

identification of the hazards in a 

manner that achieves strict technical 

compliance with applicable regulatory 

requirements. The Head of DOE Field 

Element has 90 days to accept the 

closure facility hazard controls 

identified by the contractor as sufficient 

to ensure a safe and healthful workplace 

or direct additional action to either 

achieve technical compliance or provide 

additional controls to protect the 

workers. 

Final rule section 851.21(c), which 

was supplemental proposed section 

851.100(b)(1), requires contractors to 

perform the activities identified in 

section 851.21(a), initially to obtain 

baseline information, and again as often 

as necessary. The commenter (Ex. 35) 

inquired whether the intent was to 

require a baseline hazard assessment to 

identify hazards for every workplace. 

The commenter asked whether it might 

also be acceptable to describe only the 

basic hazards of the workplace initially, 

while also providing a method in the 

worker safety and health program for 


cprice-sewell on PROD1PC66 with RULES2
6894 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

detailed real-time, job-specific hazard 

and safety analysis to be conducted 

immediately prior to beginning the 

work. The commenter went on to state 

that this latter (real-time assessment) 

would be performed to ensure that 

changing worksite conditions have not 

impacted hazards and associated 

mitigation strategies since the time 

when the basic hazards were described 

in the initial assessment. DOE believes 

the requirements in final rule section 

851.21 are appropriate, and declines to 

accept this commenter’s suggestion. It is 

DOE’s intent that within the framework 

provided in final rule section 851.21(c), 

the contractor must identify existing 

and potential workplace hazards using 

the prescribed methods in section 

851.21(a), for new and existing facilities, 

operations, and procedures. The 

contractor must establish and 

implement hazard identification and 

risk assessment procedures initially to 

obtain baseline information and again as 

often as necessary to ensure compliance 

with the regulation in Subpart C. 

Section 851.21(a) also requires routine 

job activity level hazard analyses to be 

performed. The final rule intends for the 

contractor to develop and include the 

process for performing hazard 

identification in the worker safety and 

health program, but the contractor is not 

required to present the full results of the 

hazard assessment in the worker safety 

and health program. 

Section 851.22—Hazard Prevention and 

Abatement 

Final rule section 851.22 establishes 

the requirement for contractors to 

develop and implement a process for 

preventing, prioritizing, and abating 

hazards in the workplace. Under this 

section contractors must abate hazards 

using a prescribed hierarchy of controls, 

starting with elimination (or 

substitution) and ending with personal 

protective equipment, which is to be 

used only as a last resort. Hazards must 

also be considered when contractors 

purchase equipment. As a general 

comment on the section as a whole, 

three commenters (Exs. 28, 45, 51) 

believed that the term ‘‘adequately 

protected’’ is ambiguous in 

supplemental proposed section 

851.100(a)(2) and implies that if an 

injury occurs by any means, the 

program would not have provided 

‘‘adequate protection.’’ The commenters 

believed that the program should 

provide an acceptable level of worker 

protection based upon determination of 

acceptable risks for identified hazards. 

As discussed previously, DOE believe 

‘‘adequate protection’’ is a proper 

standard. However, in revising this 

provision, the reference to ‘‘adequate 

protection’’ has been eliminated. 

Section 851.22(a) requires contractors 

to establish and implement a hazard 

prevention and abatement process to 

ensure that all identified and potential 

hazards are prevented or abated in a 

timely manner. For hazards identified 

either in the facility design or during the 

development of procedures, contractors 

are required to incorporate controls in 

the appropriate facility design or 

procedure. For existing hazards 

identified in the workplace, contractors 

are required to (1) prioritize and 

implement abatement actions according 

to the risk to workers; (2) implement 

interim protective measures pending 

final abatement; and (3) protect workers 

from dangerous safety and health 

conditions. One commenter (Ex. 16) 

requested that the term ‘‘imminently 

dangerous conditions’’ in supplemental 

proposed section 851.100(b)(2)(iii) be 

defined. DOE has modified the language 

in final rule section 851.22(a)(2)(iii) to 

read ‘‘dangerous safety and health 

conditions.’’ These terms are commonly 

understood and need not be defined in 

Part 851. 

Section 851.22(b), which corresponds 

to supplemental proposed section 

851.100(b)(2)(iv), requires contractors to 

select hazard controls based on the 

following hierarchy: (1) Elimination or 

substitution of the hazards where 

feasible and appropriate, (2) engineering 

controls where feasible and appropriate, 

(3) work practices and administrative 

controls that limit worker exposures, 

and (4) personal protective equipment. 

Two commenters (Exs. 16, 27) believed 

that the hierarchy of hazard controls 

should acknowledge appropriate 

economic and technical feasibility, work 

activity duration, and available 

technology constraints that are 

important and practical considerations 

in compliance. DOE acknowledges these 

concerns and section 851.22(b) of the 

final rule has expanded to clarify that 

substitution or elimination of hazards 

and the use of engineering controls 

should be used where feasible and 

appropriate, and use of work practices 

and administrative controls to limit 

worker exposures. 

Section 851.22(c) requires contractors 

to address hazards when selecting or 

purchasing equipment, products, and 

services. Two commenters (Exs. 31, 54) 

expressed concern about the 

supplemental proposed section 

851.100(b)(2)(v). One commenter (Ex. 

31) believed that this provision poses a 

problem because it is difficult to judge 

the safety of services based on human 

performance, and that this provision 

would require review of safety records 

for service providers to evaluate unsafe 

work practices. The commenter 

recommended that the reference to 

services be deleted. The other 

commenter (Ex. 54) recommended 

rewording the provision in light of the 

concept of inherently safer design to 

require ‘‘reduction in hazards to 

workers by ensuring that equipment 

purchase, lease or rental, process and 

equipment design and all acquired 

services are selected with worker safety 

and health as a priority.’’ DOE believes 

that worker safety and health should be 

a primary consideration in performing 

work and should be considered in all 

aspects of the work, including the 

selection and purchasing of equipment, 

products, and services. As a result, this 

provision is retained in the final rule. 

Section 851.23—Workplace Safety and 

Health Standards 

Section 851.23(a) requires that 

contractors comply with the following 

standards, if applicable to the hazards at 

their workplace: (1) Title 10 CFR 850, 

‘‘Chronic Beryllium Disease Prevention 

Program’’; (2) Title 29 CFR Parts 1904.4 

through 1904.11, 1904.29 through 

1904.33; 1904.44 and 1904.46, 

‘‘Recording and Reporting Occupational 

Injuries and Illnesses’’; (3) Title 29 CFR 

Part 1910, ‘‘Occupational Safety and 

Health Standards,’’ excluding 29 CFR 

1910.1096, ‘‘Ionizing Radiation’’; (4) 

Title 29 CFR Part 1915, ‘‘Shipyard 

Employment’’; (5) Title 29 CFR Part 

1917, ‘‘Marine Terminals’’; (6) Title 29 

CFR Part 1918, ‘‘Safety and Health 

Regulations for Longshoring’’; (7) Title 

29 CFR Part 1926, ‘‘Safety and Health 

Regulations for Construction’’; (8) Title 

29 CFR Part 1928, ‘‘Occupational Safety 

and Health Standards for Agriculture’’; 

(9) ACGIH ‘‘Threshold Limit Values 

(TLV) for Chemical Substances and 

Physical Agents and Biological 

Exposure Indices,’’ when the ACGIH 

TLVs are lower (more protective) than 

permissible exposure limits in 29 CFR 

part 1910 (note that when the ACGIH 

TLVs are used as exposure limits, 

contractors must nonetheless comply 

with the other provisions of any 

applicable expanded health standard 

found in 29 CFR Part 1910); (10) ANSI 

Z88.2, ‘‘American National Standard 

Practices for Respiratory Protection’’; 

(11) ANSI Z136.1, ‘‘Safe Use of Lasers’’; 

(12) ANSI Z49.1, ‘‘Safety in Welding, 

Cutting and Allied Processes,’’ sections 

4.3 and E4.3 (of the 1994 edition or 

equivalent sections of sequent editions); 

(13) NFPA 70, ‘‘National Electrical 

Code’’; and (14) NFPA 70E, ‘‘Electrical 

Safety in the Workplace.’’ These 

mandatory standards establish baseline 

technical safety and health requirements 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6895 

for DOE workplace operations. These 

standards are already required by DOE 

Order 440.1A, and are enforced through 

contract mechanisms. Section 851.23(b) 

provides that Part 851 may not be 

construed as relieving a contractor from 

the obligation to comply with any 

additional specific safety and health 

requirement that the contractor 

determines is necessary for worker 

protection. 

DOE received a substantial number of 

comments on this section, many of 

which applied to the section as a whole. 

One commenter (Ex. 28) noted that 

supplemental proposed sections 

851.201 through 851.210 did not 

include requirements for chemical or 

radiological protection, and 

recommended that DOE specifically 

define ‘‘recognized areas of protection.’’

DOE has clarified in final rule section 

851.2(b) that Part 851 does not apply to 

radiological hazards to the extent 

regulated by 10 CFR 820, 830, or 835. 

Further, Subparts B and C establish 

general and specific worker safety and 

health program requirements that 

contractors must implement to protect 

workers from workplace hazards, which 

as defined in section 851.3 of the final 

rule include physical, chemical, 

biological, or safety hazards with any 

potential to cause illness, injury, or 

death to a person. 

Numerous commenters (Exs. 6, 15, 16, 

20, 28, 29, 33, 37, 45, 47, 48, 51) argued 

that compliance with the DOE-approved 

contractor worker safety and health 

program, Work Smart Standards, or 

Contractors Requirements Document 

should constitute compliance with this 

regulation. Three of these commenters 

(Exs. 6, 15, 28) alternatively suggested 

that DOE should include in the final 

rule DOE directives or standards that 

have already been identified through 

various DOE approved processes and 

incorporated into existing contracts, and 

then define their relationship or 

functionality within the rule. Two other 

commenters (Ex. 12, 42) requested that 

the rule clarify how DOE orders other 

than DOE Order 440.1A in prime 

contracts should be addressed in regard 

to the worker safety and health 

requirements. DOE has incorporated 

relevant DOE directives into the 

appropriate sections of the final rule. As 

discussed in the section-by-section 

discussion for Subpart B of the final 

rule, DOE has also included provisions 

in section 851.13(b) to allow contractors 

to use existing worker safety and health 

programs established under the 

Integrated Safety Management System, 

Work Smart Standards process, or other 

worker safety and health process 

provided that such programs meet the 

requirements of this rule and are 

approved by the appropriate Head of the 

DOE Field element. Furthermore, DOE 

notes that the standards included in 

final rule section 851.23(a) have in fact 

been reviewed and approved by an 

existing DOE safety and health process. 

Specifically, these standards were 

included in DOE Order 440.1A which 

was the result of extensive coordination 

among safety and health professionals 

throughout the entire DOE community 

and was concurred on by all DOE 

Secretarial Officers and approved by the 

Secretary of Energy. 

Several commenters (Exs. 30, 60, 62) 

believed that 10 CFR Part 850, Chronic 

Beryllium Disease Prevention Program 

(CBDPP), should be included as an 

enforceable standard under the rule or, 

and another commenter (Ex. 49) asked 

DOE to clarify its intent in that regard. 

The latter commenter (Ex. 49) argued 

that 10 CFR part 850 is a performancebased standard and did not provide an 

adequate technical basis to ensure 

consistent enforcement, and believes 

that DOE should provide 

implementation guidance for 10 CFR 

part 850 if the Department intends to 

enforce that rule under 10 CFR part 851. 

Another commenter (Ex. 30) asked that 

DOE expand the scope of 10 CFR part 

850 to cover the United States 

Enrichment Corporation (USEC) 

facilities in Portsmouth, Ohio and 

Paducah, Kentucky. DOE has 

considered these comments and agrees 

that 10 CFR Part 850 should be 

enforceable under Part 851. 

Accordingly, final rule section 

851.23(a)(1) requires contractor 

compliance with 10 CFR part 850. In 

addition, DOE has included a 

modification to 10 CFR part 850 as a 

part of this rulemaking effort to clarify 

that a contractor’s CBDPP should 

supplement and be an integral part of 

the worker safety and health program 

required under 10 CFR part 851. This 

rulemaking effort does not, however, 

expand the scope of 10 CFR part 850. 

DOE’s intent with this rulemaking 

effort, as clarified in final rule section 

851.2, is to establish worker safety and 

health program provisions for contractor 

workplaces under DOE’s jurisdiction, 

not for those under OSHA’s jurisdiction 

as are the USEC facilities mentioned 

above. DOE also notes in regards to the 

commenter’s (Ex. 49) request for CBDPP 

guidance material, that DOE has already 

published such guidance in DOE G 

440.7A. DOE further notes that 10 CFR 

part 850 is already enforceable through 

contract mechanisms on DOE sites, and 

has been since its original promulgation 

in January, 2001. 

DOE received a few comments that 

recommended additional codes or 

standards that should be incorporated 

into this rule. A commenter (Ex. 24) 

suggested that DOE should adopt by 

reference the International Code Council 

(ICC) International Codes as the 

foundation for DOE rules on facility 

design, construction, renovation, and 

worker safety, based on the premise that 

these codes are consistent with DOE 

Orders 420.1 and 440.1A and have been 

widely adopted throughout the United 

States by other federal facilities, state 

and local facilities, and the private 

sector. The commenter believed that to 

do otherwise would foster nonuniformity and would likely result in 

increased costs and decreased worker 

safety. DOE acknowledges the 

commenter’s concern but notes that the 

final rule only includes those consensus 

standards originally required by DOE 

Order 440.1A. DOE believes that this 

change is consistent with intent of 

Section 3173 of the NDAA and is 

appropriate in this regulatory context. 

DOE will continue to encourage 

contractors to comply with applicable 

consensus standards where appropriate 

and will require compliance with 

selected standards through DOE 

directives such as DOE Order 420.1 and 

DOE contracts where needed. DOE also 

notes that final rule section 851.23(b) 

requires contractors to comply with any 

additional safety and health 

requirement that they determine to be 

necessary to protect the safety and 

health of workers. 

Another commenter (Ex. 30) 

recommended that an indoor air quality 

standard and an ergonomics standard be 

included in the rule and made 

enforceable. DOE notes, however, that 

both indoor air quality and ergonomic 

hazards fall within the purview of an 

industrial hygiene program. 

Accordingly, DOE expects that 

contractors will address such hazards 

through the implementation of their 

industrial hygiene program established 

in accordance with Appendix A, section 

6 of the final rule. DOE expects to 

develop guidance material to assist 

contractors in implementing these and 

other requirements of the final rule. 

Another commenter (Ex. 29) indicated 

that much of the detailed codes listed in 

the supplemental proposal should be 

replaced by reference to the major 

design codes. As noted above, however, 

DOE has eliminated all but a handful of 

consensus standards from the final rule 

consistent with the standards originally 

mandated under DOE Order 440.1A. 

Along similar lines, several commenters 

(Exs. 2, 16, 20, 24, 31, 33, 37) 

specifically requested that the 


cprice-sewell on PROD1PC66 with RULES2
6896 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

International Building Code (IBC) of the 

ICC International Codes replace NFPA 

5000 since several contractors currently 

adhere to IBC. DOE agrees and has 

removed NFPA 5000 from the final rule. 

DOE received multiple general 

comments regarding the inclusion of 

document edition dates in this section. 

Many commenters (Exs. 1, 3, 4, 12, 14, 

15, 16, 20, 22, 28, 31, 36, 37, 39, 42, 48, 

49, 50, 51, 54, 55, 61) expressed concern 

that supplemental proposed section 

851.201 included specific edition dates 

for standards and codes. The 

commenters note that many existing 

facilities are unlikely to be in 

compliance with these recent editions 

(presumably because they were 

constructed to meet earlier standards). 

Several commenters (Exs. 3, 4, 14, 16, 

31, 36, 39, 50, 51) believed that 

including such dates would result in 

excess exemptions and increased costs. 

Some of these commenters (Exs. 14, 16, 

31, 36, 50, 51) recommended 

eliminating the specific edition dates of 

the consensus standards, while others 

(Exs. 14, 16, 31, 36) offered an 

alternative recommendation that DOE 

indicate ‘‘latest revision’’ in lieu of the 

specific year. Three commenters (Exs. 

15, 31, 37) agreed, but suggested that 

DOE include a mechanism within the 

rule that updates these dates to ensure 

consistency with the changing 

knowledge and needs of the industries 

they address. Two other commenters 

(Exs. 28, 49) indicated that the edition 

dates go beyond the statutory authority 

given to DOE by Congress. DOE has 

carefully considered the forgoing 

comments about the potential effects of 

incorporating specified editions of 

consensus standards. Regulatory 

requirements must be specific and 

include the editions of incorporated 

standards. Therefore, DOE cannot 

accept the suggestion of requiring 

compliance with the ‘‘latest revision’’ of 

standards that are incorporated by 

reference. However, DOE has reviewed 

the standards listed in section 851.23(a) 

to determine if they are appropriate. As 

a result of this review, DOE has 

eliminated from the final rule many of 

the consensus standards that were listed 

in the supplemental proposal. The 

standards included in this final rule are 

consistent with those mandated under 

DOE Order 440.1A. While contractors 

must meet the standards listed in 

section 851.23(a), they are free to 

comply with more recent editions of the 

standards as long as the provisions of 

the more recent standards are at least 

protective as the edition specified in the 

final rule. In future rulemakings, DOE 

will consider the need for updating the 

referenced standards. 

Other comments specifically 

addressed the problems associated with 

updating older facilities and systems 

that were constructed according to 

previous, rather than current standards. 

Many of these commenters (Exs. 8, 15, 

29, 31, 35, 36, 37, 42, 46, 49) expressed 

concern that the rule does not include 

the ‘‘grandfathering’’ of existing 

facilities (i.e., allowing facilities to meet 

only the code requirements in effect at 

the time the facility was built). The 

commenters believe that it is not 

feasible to bring older facilities up to all 

the new codes and that attempting to do 

so would present insurmountable 

problems for most facilities. 

Commenters also believe that failure to 

allow grandfathering would result in 

significant costs associated with 

evaluation, modification, reporting 

requirements, and the need for 

exemptions, as well as costs from fines 

or penalties associated with 

noncompliance. Some of these 

commenters requested grandfathering 

under the Code of Record concept, in 

which a contractor is not required to 

implement current editions of codes or 

standards unless the facility undergoes 

substantial modifications. The 

commenters suggested that DOE require 

modification only in the presence of a 

significant hazard, in which case the 

facility would be upgraded to the 

requirements of the current edition of 

the code or standard. Another 

commenter (Ex. 14) also expressed 

concern that no provision in the 

proposed rule recognized DOE’s use of 

the risk-based ‘‘graded approach’’ to 

upgrading aging facilities and correcting 

deficiencies under current industry 

codes, regulations, and guidance. This 

commenter believes that shifting to the 

proposed compliance-based approach 

will incur excessive costs at the expense 

of the DOE program office due to the 

funds required to bring all facilities into 

compliance at the same time, to pay 

civil penalties, or to process exemption 

requests. The commenter suggested that 

a possible resolution could be to 

grandfather known deficiencies with an 

approved plan for resolution. Another 

commenter (Ex. 35) recommended that 

DOE add a provision that allows 

contractors to use of national consensus 

standards equivalent to those listed in 

supplemental proposed section 851.201. 

It was the commenter’s opinion that 

including the provision would help 

contractors avoid having to use the 

exemption relief described in Subpart D. 

As mentioned previously, DOE has 

eliminated many of the consensus 

standards listed in the supplemental 

proposed rule. The standards mandated 

in final rule section 851.23(a) are 

consistent with those required under the 

existing DOE Order 440.1A, which has 

been successfully implemented for more 

than 10 years. Thus, most facilities will 

be in compliance with the new 

standards and grandfathering is not 

necessary. Therefore, DOE does not 

anticipate a large number of requests for 

variances, nor does DOE believe that 

compliance would result in excessive 

costs. 

Several commenters (Exs. 15, 16, 20, 

28, 29, 33, 36, 37, 45, 48, 51) noted that 

conflict exists between many of the 

consensus standards and codes (e.g., 

OSHA, NFPA, ASME, and ANSI codes) 

cited in the supplemental proposal and 

the codes and standards incorporated 

into the contracts of many prime 

contractors and other DOE 

requirements. Most of these commenters 

(Exs. 15, 16, 20, 28, 29, 33, 36, 37, 48, 

51) suggested that all cited regulations 

should be reviewed for unintended 

implications. In the final rule, DOE has 

aligned the standards in final rule 

section 851.23(a) with those required 

under DOE Order 440.1A. Thus, DOE 

does not anticipate conflict between the 

standards in the final rule and those in 

existing contracts and other DOE 

directives. 

Several commenters (Exs. 6, 15, 28, 

29, 36, 37, 38, 42, 45, 47, 49, 50, 57) 

recommended that DOE adopt OSHA 

standards as the minimum set of 

requirements, and expressed the 

opinion that the national consensus 

standards in the supplemental proposed 

rule do not provide an appropriate basis 

for enforcing worker safety and health 

requirements at DOE facilities. Two of 

these commenters (Exs. 15, 38) 

suggested that DOE also adopt other 

elements of OSHA’s regulations, such as 

interpretations, penalty policies, and 

appeals mechanism. As previously 

discussed, DOE has revised the list of 

standards in response to comments on 

the supplemental proposal. The 

standards mandated in final rule section 

851.23(a) are consistent with those 

mandated under the existing DOE Order 

440.1A. These standards include OSHA 

standards as well other consensus 

standards that have been evaluated by 

the DOE health and safety community 

and deemed necessary to address gaps 

in the OSHA standards and to provide 

adequate protection to the DOE 

workforce. DOE also intends to prepare 

enforcement guidance supplements 

(EGSs) that will provide enforcement 

guidance. DOE anticipates that these 

EGSs will be consistent with and to a 

great extent based on the equivalent 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6897 

OSHA guidance. Furthermore, under 

final rule section 851.6, DOE will 

continue to issue technical positions 

that will be based in large measure on 

the existing body of OSHA 

interpretations. 

Several commenters were concerned 

by the potential costs of compliance 

with supplemental proposed section 

851.23(a). These commenters (Exs. 14, 

16, 20, 27, 29, 31, 34, 36, 37, 38, 42, 48, 

49, 57, 58) surmised that 

implementation of the proposed rule 

would result in increased costs 

associated with the increased amount of 

resources needed to comply with the 

large number of consensus standards. 

Further, commenters believed that these 

costs would divert funds normally spent 

on safety, which would negatively 

impact worker safety and health. Two 

commenters (Exs. 15, 38) also argued 

that the costs would divert funds from 

research. One commenter (Ex. 11) felt 

that DOE should perform an economic 

impact analysis for the rule. DOE again 

notes that in the final rule many of the 

consensus standards listed under the 

supplemental proposal are eliminated 

and the remaining standards in final 

rule section 851.23(a) are those required 

by the existing DOE Order 440.1A. Most 

facilities should already be in 

compliance with these standards and, 

therefore, DOE does not anticipate 

increased costs. 

DOE received a number of comments 

on specific standards (or blocks of 

standards from the same standardsetting organization). Many commenters 

(Exs. 1, 2, 3, 4, 5, 7, 8, 16, 19, 20, 24, 

22, 29, 31, 33, 37, 39, 45, 47, 49, 54, 55, 

58, 59, 61) raised concerns about the 

NFPA codes found in supplemental 

proposed section 851.201(b), Table 1. 

The commenters recommended that 

these codes be eliminated or clarified 

based on various compliance concerns, 

including applicability to facilities, 

increased costs, and excessive variance 

requests. One commenter (Ex. 61) 

observed that while the supplemental 

proposed rule preamble and purpose 

indicated that the purpose of the rule 

was worker safety and health, many of 

the National Fire Protection Association 

(NFPA) requirements referenced in 

supplemental proposed rule section 

851.201 from DOE Order 420.1A are 

directed at limiting property damage, 

not improving worker safety. The 

commenter inquired if it was the intent 

of the rule to address property 

protection in addition to worker safety 

or whether enforcement of the NFPA 

standards would be limited to those 

issues and provisions that specifically 

affect worker safety. Furthermore, if the 

latter was the case, the commenter 

questioned how DOE would document 

which provisions specifically applied to 

worker safety and which applied to 

property protection. DOE acknowledges 

these concerns and notes that the intent 

of the rule is worker safety and health. 

Accordingly, DOE has removed the 

majority of the specific NFPA standards 

in the interest of reducing the contractor 

and site compliance burdens. NFPA 70 

and 70E remain in the final rule because 

they are important for protecting worker 

safety and health on DOE sites. DOE 

notes, however, several deleted NFPA 

standards may be applicable to DOE 

facilities through DOE fire protection 

directives, such as DOE Order 420.1A or 

by contract. 

Several of these commenters (Exs. 2, 

8, 16, 19, 29, 37, 45, 49) also objected 

to the American Society of Mechanical 

Engineers (ASME), ANSI, American 

Petroleum Institute (API), American 

Water Works Association (AWWA), and 

Underwriters Laboratories (UL) codes 

found in supplemental proposed section 

851.201(c), Tables 2 through 5. 

Commenter concerns related to these 

codes included increased costs if the 

codes were retained, compliance issues, 

legacy construction issues, lack of 

rationale for omission and inclusion of 

the codes appearing in the tables (i.e., 

the included codes were too 

prescriptive but with numerous gaps in 

coverage), lack of applicability to DOE 

sites, potential increase in exemption 

requests, conflict with cited OSHA 

regulations in the supplemental 

proposal, level of specificity not 

appropriate to a rule of this type, the 

fact that specified code editions can 

become quickly outdated, and problems 

associated with revision of edition dates 

through rulemaking procedures. Many 

of these commenters (Exs. 8, 16, 19, 45) 

suggested that DOE eliminate the 

specific codes and editions. Finding 

several of these concerns to be valid, 

DOE has modified final rule section 

851.23(a) by eliminating Tables 2 

through 5 and associated codes (i.e., 

ASME, API, AWWA, UL, and ANSI 

pressure-related codes). 

DOE also received numerous 

comments related to the standard on 

TLVs. Many commenters (Exs. 12, 16, 

28, 31, 36, 37, 38, 42, 45, 47, 49, 51, 54, 

56) expressed concern over 

supplemental proposed section 

851.201(e), which required compliance 

with the ACGIH standard for TLVs. 

Several of these commenters (Exs. 16, 

28, 31, 36, 37, 42, 45, 51, 56) expressed 

the opinion that these values are 

inappropriate and recommended that 

they be eliminated from the rule or 

adopted only partially, since they do not 

take into account economic or technical 

feasibility. One commenter (Ex. 38) 

asserted that this provision goes beyond 

OSHA requirements and creates an 

unreasonable obligation for contractors 

to keep employee exposure levels below 

both OSHA PELs and the ACGIH 

exposure limits (depending on which 

value is lower). Conversely, another 

commenter (Ex. 54) recommended that, 

to ensure greater worker protection, 

DOE continue to require contractors to 

follow ACGIH TLVs where they are 

more protective than OSHA PELs. DOE 

agrees with the latter comment on 

inclusion of ACGIH TLVs. In final rule 

section 851.23(a)(9), DOE continues to 

require the use of ACGIH TLVs 

exposure limits where they are lower 

and more protective than OSHA PELs. 

As mentioned earlier in the discussion 

of this section, this approach is 

consistent with DOE Order 440.1A, 

which has been in place and 

implemented by DOE contractors on 

DOE worksites for a decade. 

Two commenters were concerned 

about beryllium exposure levels. One 

commenter (Ex. 49) recommended that 

the ACGIH TLV for beryllium be 

excluded from the rule on the basis that 

DOE has a separate rule 10 CFR 850 that 

specifically addresses beryllium 

exposure limits. In contrast, another 

commenter (Ex. 62) believed that DOE 

should adopt the ACGIH TLV for 

beryllium in the rule; the more 

protective limit currently under 

consideration by ACGIH would be 

applicable under this rule upon 

ACGIH’s approval. In 851.23(a)(1) of the 

final rule, DOE requires contractors to 

comply with 10 CFR 850, ‘‘Chronic 

Beryllium Disease Prevention Program’’

(Part 850 CBDPP). In addition, Part 850 

CBDPP has been revised to state that it 

supplements, and is deemed an integral 

part of, the worker safety and health 

program under Part 851. Section 

851.23(a)(9) adopts the ACGIH TLVs, 

however, DOE notes that the rule adopts 

a specific version of the ACGIH 

standards. Incorporation of any future 

changes to those standards into 10 CFR 

851 could only be accomplished 

through appropriate rulemaking 

procedures. 

DOE received a few requests for 

additional specific standards to be 

included in the rule. One commenter 

(Ex. 49) recommended that DOE 

specifically list parts of the referenced 

ANSI standards that are considered 

exposure limits and technical 

requirements and, thus, applicable 

under the rule. DOE agrees that 

specificity is helpful and has included 

851.23(a)(10), (11), and (12) in the final 

rule; these list the three specific ANSI 

standards adopted under the rule. 


cprice-sewell on PROD1PC66 with RULES2
6898 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

Three other commenters (Exs. 11, 54, 

55) recommended that DOE include the 

10 CFR 1904, ‘‘Recording and Reporting 

Occupational Injuries and Illnesses,’’

standard and require participation in 

the OSHA illness and injury survey in 

29 CFR 1904.41. DOE agrees with this 

comment and in final rule section 

851.23(a)(2), DOE includes and requires 

compliance with the following 

provisions of 29 CFR 1904: 1904.4 

through 1904.11, 1904.29 through 

1904.33, 1904.44, and 1904.46, 

‘‘Recording and Reporting Occupational 

Injuries and Illnesses.’’

One commenter (Ex. 5) suggested that 

DOE include relevant emergency 

response standards. This commenter 

noted that Emergency Response 

Planning Guidelines (ERPGs) and 

Temporary Emergency Exposure Limits 

(TEELs) standards, which apply to 

emergencies and are not covered by 

other standards, are not referenced in 

the rule. DOE notes that the specific 

issue of including emergency response 

standards is beyond the scope of this 

rulemaking. 

Several commenters (Exs. 25, 27, 28, 

31, 39, 42, 48) expressed concern that 

supplemental proposed section 

851.200(b), which gave DOE the 

authority to impose additional 

requirements on a contractor, would 

leave contractor liability open-ended 

and would exacerbate costs. These 

commenters believed that the additional 

requirements that DOE can impose on a 

contractor should be limited in response 

to these comments. DOE has eliminated 

this authority and modified the 

language in final rule section 851.23(b) 

to read, ‘‘Nothing in this part must be 

construed as relieving a contractor from 

complying with any additional specific 

safety and health requirements that the 

contractor determines to be necessary to 

protect the safety and health of 

workers.’’

Another commenter (Ex. 15) felt that 

the intention of the introduction to the 

supplemental proposal, which indicates 

that this proposal is intended to ‘‘codify 

a minimum set of safety and health 

requirements with which contractors 

must comply,’’ is not carried over into 

the language of Subpart C, and 

recommended that supplemental 

proposed section 851.200(a) be modified 

to include ‘‘A contractor responsible for 

a covered workplace must, at a 

minimum comply with the worker 

safety and health requirements * * *’’

DOE agrees with this concern but feels 

that it is addressed in 851.23(b) of the 

final rule, which states that a contractor 

is not relieved from complying with 

additional worker safety and health 

requirements that they deem necessary 

to protect their workers. 

Section 851.24—Functional Areas 

Section 851.24 requires that 

contractors have a structured approach 

to their worker safety and health 

program, which includes provisions for 

functional areas. Specifically, 851.24(a) 

requires that contractors, at a minimum, 

include provisions in the functional 

areas of construction safety, fire 

protection, firearm safety, explosives 

safety, pressure safety, electrical safety, 

industrial hygiene, occupational 

medicine, biological safety, and motor 

vehicle safety. Section 851.24(b) 

establishes that contractors are subject 

to all applicable standards and 

provisions in Appendix A, ‘‘Worker 

Safety and Health Functional Areas.’’

Comments regarding each of the 

functional areas are addressed in the 

discussion of Appendix A in this 

Supplementary Information. 

Section 851.25—Training and 

Information 

Section 851.25 describes the 

contractor requirements for a worker 

safety and health training and 

information program. Section 851.25(a) 

establishes the contractor’s obligation to 

provide training, while section 

851.25(b) describes when, and at what 

frequency, the training must be 

provided. Specifically, a contractor 

must provide (1) training and 

information for new workers, before or 

at the time of initial assignment to a job 

involving exposure to a hazard; (2) 

periodic training as often as necessary to 

ensure that workers are adequately 

informed and trained, and (3) additional 

training when safety and health 

information or a change in workplace 

conditions indicates that a new or 

increased hazard exists. Section 

851.25(c) requires contractors to provide 

training and information to workers 

with worker safety and health program 

responsibilities that is necessary for 

them to effectively carry out those 

duties. 

One commenter (Ex. 30) 

recommended that proposed section 

851.100(b)(7) be eliminated stating that 

it would result in excess paperwork 

since contractors already have safety 

programs and are required to provide a 

workplace free of hazards. DOE 

disagrees, believing that training is a 

basic component of successful worker 

protection efforts. 

Section 851.26—Recordkeeping and 

Reporting 

(a) Recordkeeping. Section 851.26 in 

the final rule addresses contractor 

recordkeeping and reporting 

requirements. This section consolidates 

provisions that were included in 

sections 851.4(f) and 851.7 of the 

supplemental proposed rule. After 

considering public comment, DOE has 

revised the recordkeeping and reporting 

requirements. 

Section 851.26(a) requires a contractor 

to maintain complete and accurate 

records of all hazard inventory 

information, hazard assessments, 

exposure measurements, and exposure 

controls. 

Section 851.26(a)(1) requires 

contractors to ensure that the workrelated injuries and illnesses of their 

workers and subcontractor workers are 

recorded and reported accurately in a 

manner consistent with DOE Manual 

231.1–1A, ‘‘Environment, Safety and 

Health Reporting Manual.’’ This manual 

was established under DOE Order 

231.1A, the primary directive on 

environment, safety and health 

reporting, including occupational 

injuries and illnesses. The manual 

requires contractors to record, maintain 

records on, and report occupational 

fatalities, injuries, and illnesses among 

their employees (and subcontractors) 

arising out of work primarily performed 

at facilities owned or leased by DOE. 

Section 851.26(a)(2) requires 

contractors to comply with the 

applicable to occupational injury and 

illness recordkeeping safety and health 

standards in section 851.23 of this part 

at their site, unless otherwise directed 

in DOE Manual 231.1–1A. 

Section 851.26(b) establishes 

contractors’ duty to report and 

investigate accidents, injuries, and 

illnesses. Under this section contractors 

are also required to analyze related data 

for trends and lessons learned, in 

accordance with DOE Order 225.1A, 

‘‘Accident Investigations.’’

Section 851.26(c) requires that 

contractors not conceal or destroy any 

information concerning non-compliance 

or potential non-compliance with the 

requirement of this part. 

DOE received numerous comments on 

reporting requirements in supplemental 

proposed section 851.4(f). That 

supplemental proposed section would 

have required contractors to report and 

investigate each occurrence (including 

‘‘near miss’’ incidents) that causes a 

significant likelihood of death or serious 

bodily harm. The majority of 

commenters (Exs. 5, 15, 25, 28, 30, 31, 

35, 38, 39, 42, 45, 47, 51, 57) requested 

definitions for the terms used in the 

context of supplemental proposed 

section 851.4(f) (e.g., ‘‘near miss’’ and 

‘‘significant likelihood’’). Some 

commenters (Exs. 16, 36, 42) favored 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6899 

deletion of the provision, since the 

terms were too subjective and lacked a 

clear definition. In response to these 

concerns, DOE has removed this 

provision from the final rule. Final rule 

section 851.26(a)(2) clarifies that 

contractors must report and record 

workplace injuries and illnesses in 

accordance with DOE Manual 231.1–1A. 

The commenters (Exs. 5, 15, 25, 28, 

30, 31, 35, 38, 39, 42, 45, 47, 51, 57) also 

sought clarification on reporting 

thresholds for occurrences in 

supplemental proposed section 851.4(f). 

Two commenters (Exs. 13, 39) 

specifically inquired where and to 

whom the report should be submitted. 

One commenter (Ex. 60) asserted that 

occurrence reporting should be 

mandatory and failure to report should 

be subject to enforcement. Concerned 

that this section contravened 

Noncompliance Tracking System 

reporting requirements in PAAA-related 

programs, other commenters (Exs. 36, 

38, 39, 42, 49, 57) pointed out that 

supplemental proposed section 851.4(f) 

was not consistent with supplemental 

proposed Appendix A(IX)(b)(5). Several 

commenters (Exs. 15, 16, 20, 27, 31, 42, 

49) recommended that the reporting 

process be aligned with existing DOE 

reporting systems like the Occurrence 

Reporting and Processing System or 

DOE Order 231.1A. As is noted earlier 

in this discussion, DOE agrees with 

these comments and has replaced 

supplemental proposed section 851.4(f) 

with final rule section 851.26, which 

references DOE Manual 231.1–1A. 

E. Subpart D—Variances 

The supplemental proposal contained 

an exemption process based on the 

exemption process established in 10 

CFR part 820 for exemptions from 

nuclear safety requirements. DOE 

selected the exemption process outlined 

in 10 CFR part 820 for use in the 

supplemental proposal because it is 

specific to DOE activities. DOE believed 

that because DOE contractors had 

already implemented this process, the 

process would be easily understood and 

costs would be reduced. Many 

commenters (Exs. 10, 11, 15, 16, 20, 21, 

29, 31, 33, 36, 37, 38, 39, 40, 42, 46, 49, 

54, 60), however, disagreed with this 

selection, most stating that this process 

would actually be too costly to 

implement. Other commenters (Exs. 10, 

16, 23, 30, 39, 40, 44, 60, 62) argued that 

the exemption process in the 

supplemental proposal was not 

consistent with the requirement for 

flexibility specified by Congress in 

section 3173 of the NDAA. Specifically, 

these commenters felt that the 10 

exemption criteria included in the 

supplemental proposal exemption 

process went beyond the flexibility 

provisions of the NDAA and could 

allow contractors to inappropriately 

circumvent many of the requirements of 

the rule. Several of these commenters 

(Exs. 16, 58, 62) felt that the flexibility 

concerns related to closure facilities 

raised in the NDAA would be more 

appropriately handled through the 

worker safety and health program, 

hazard abatement, and enforcement 

provisions of the rule. 

To address these concerns, several 

commenters (Exs. 11, 21, 44, 49, 60, 62) 

suggested that DOE should replace the 

proposed exemption process with a 

variance process modeled after OSHA’s 

variance process established in 29 CFR 

part 1905. These commenters argued 

that the variance process outlined in 29 

CFR part 1905 was developed 

specifically to address OSHA worker 

safety and health standards and, thus, 

was more applicable to the requirements 

established in the worker safety and 

health program. 

A few commenters (Exs. 28, 45, 51) 

supported the exemption process in the 

supplemental proposal but expressed 

concern that the exemption 

implementation process would become 

unwieldy if additional exemption 

criteria were added. These commenters 

believed that this could be detrimental 

to legitimate exemption requests (e.g., 

facility closure or demolition), and 

suggested that an initial screening 

process be established to determine 

whether an exemption request satisfies 

criteria for evaluation. One commenter 

(Ex. 28) suggested that the 10 exemption 

circumstances be grouped into 4 

categories for screening. 

DOE has considered each of these 

comments and concluded that a 

variance process modeled after the 

OSHA variance process is more 

appropriate to address worker safety 

and health issues. As a result, DOE has 

adopted a variance process based on the 

variance process of 29 CFR part 1905. 

DOE notes that, because section 851.23 

requires compliance with OSHA 

standards, the use of the OSHA variance 

process as the framework of the DOE 

variance process will allow DOE to 

benefit from OSHA’s implementation of 

the process over the past 3 decades. 

DOE expects that variance requests to 

OSHA and OSHA responses will be 

relevant to variance requests that the 

Department will receive under Part 851. 

Many commenters (Exs. 8, 15, 16, 20, 

29, 31, 35, 36, 37, 38, 39, 42, 46, 49) 

argued that the extensive list of 

standards in supplemental proposed 

section 851.201 would result in 

excessive exemption requests and a 

corresponding increase in compliance 

costs, since contractors would often be 

unable to meet the specific editions of 

standards incorporated by reference. 

One commenter (Ex. 5) stated that 

exemptions take an incredible amount 

of time to prepare and get through the 

DOE system for review and approval. As 

previously discussed, DOE has pared 

back the standards mandated in the 

final rule to be consistent with those 

required by existing DOE Order 440.1A. 

DOE believes that DOE contractors are 

intimately familiar and largely in 

compliance with the requirements of 

these standards. As a result, DOE does 

not anticipate a large number of requests 

for variances. As mentioned in the 

section-by-section discussion for the fire 

protection provisions of Appendix A 

section 2 of the final rule, DOE believes 

that the ‘‘equivalency’’ process 

established in many of the NFPA 

standards required under final rule 

section 851.23 will further reduce the 

need for variances under the rule. 

DOE also intends to apply OSHA’s 

policies regarding de minimis violations 

in determining the need for a variance 

and believes that this policy will further 

reduce the volume of variance requests. 

Specifically, OSHA practice holds that 

variances are not needed for conditions 

that meet the criteria for de minimis 

violations. These criteria, as described 

in the OSHA Field Inspection Reference 

Manual CPL 2.103, Section 7—Chapter 

III, Sub-section C(2)(g) include 

conditions where: (1) Violations of the 

relevant standard has no direct or 

immediate relationship to safety or 

health; (2) An employer complies with 

the clear intent of the standard but 

deviates from its particular 

requirements in a manner that has no 

direct or immediate relationship to 

employee safety or health; (3) An 

employer complies with a proposed 

standard or amendment or a consensus 

standard rather than with the standard 

in effect at the time of the inspection 

and the employer’s action clearly 

provides equal or greater employee 

protection or the employer complies 

with a written interpretation issued by 

the OSHA Regional or National Office; 

or (4) An employer’s workplace is at the 

‘‘state of the art’’ which is technically 

beyond the requirements of the 

applicable standard and provides 

equivalent or more effective employee 

safety or health protection. 

General examples illustrating 

potential de minimis conditions that 

may not require issuance of variances 

based on the OSHA criteria described 

above may involve deviations of 

distance specifications, construction 

material requirements, use of incorrect 


cprice-sewell on PROD1PC66 with RULES2
6900 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

color, minor variations from recordkeeping, testing, or inspection 

regulations. For example, in considering 

a variance request for 29 CFR 

1910.27(b)(1)(ii) which allows 12 inches 

as the maximum distance between 

ladder rungs, OSHA determined that a 

situation involving rungs that were 13 

inches apart could be considered de 

minimis. In another example involving 

29 CFR 1910.28(a)(3) which requires 

guarding on all open sides of scaffolds, 

OSHA determined that a situation 

where employees were tied off with 

safety belts in lieu of guarding, met the 

intent of the standard and thus, was a 

de minimis condition and a variance 

was not needed. In a third example, 

OSHA determined that a deviation from 

29 CFR 1910.217(e)(1)(ii) which, 

requires that mechanical power presses 

be inspected and tested at least weekly, 

was de minimis in a situation where the 

machinery was seldom used, and was 

inspected and tested prior to each use. 

The following sections provide a 

detailed discussion of the variance 

process outlined in the final rule. 

Because this process differs significantly 

from the exemption process outlined in 

the supplemental proposal, the sections 

below do not correspond directly with 

the sections of the original proposal. 

Section 851.30—Consideration of 

Variances 

Section 851.30 establishes the 

authorities that will consider requests 

for variances from specific provisions of 

the rule. Specifically, section 851.30(a) 

establishes that the Under Secretary has 

the authority to grant variances. Under 

this provision, this authority may not be 

delegated. A few commenters (Ex. 30, 

44, 60, 62) believe that the Secretary of 

Energy, not the Officer with 

responsibility for a contractor’s activity, 

should issue the decision for a variance 

or an exemption. The commenters 

believe that instead of allowing the 

NNSA to recommend exemptions and 

issue final decisions, the Energy 

Secretary should render decisions on all 

exemptions, after receiving a 

recommendation from the EH–1. DOE 

disagrees, but believes that the 

appropriate approval level for granting a 

variance rests with the Under Secretary 

for Energy and Environment, or the 

Under Secretary for Science, or the 

Under Secretary for Nuclear Security/ 

Administrator for National Nuclear 

Security Administration, and need not 

be elevated to the Secretarial level. The 

Under Secretary, in granting the 

variance must consider the 

recommendation of the Assistant 

Secretary for Environment, Safety and 

Health. 

Another commenter (Ex. 11) stated 

that non-NNSA and NNSA contractors 

should not have separate systems for the 

exemption process, and that one process 

would be appropriate for the 

consideration of all variances. DOE 

agrees that a single Department-wide 

process is appropriate and has designed 

the variance process so that the 

Assistant Secretary for Environment, 

Safety and Health considers all 

variances requests and makes a 

recommendation as to whether they 

should be granted or denied. The 

decision to grant a variance is made by 

the Under Secretary with line 

management responsibility for the 

contractor requesting the variance. The 

Under Secretary must consider the 

recommendation of Assistant Secretary 

in deciding whether to grant the 

variance. 

One commenter (Ex. 29) argued that 

the exemption process would function 

more efficiently if variance requests for 

standards addressing less significant 

hazards could be approved at the 

regional or site level, so as not to 

overburden the CSO with multiple 

variance requests. DOE believes, 

however, that concerns regarding 

excessive variance requests are no 

longer relevant since, for the reasons 

noted above, DOE does not anticipate a 

large number of requests for variances. 

A final commenter (Ex. 47) on this 

section believed that the provision that 

the CSO cannot delegate exemption 

authority contradicts the requirements 

of supplemental proposed section 

851.203(a)(9). This referenced section 

addressed a fire protection selfassessment program; however, DOE 

believes this was an erroneous reference 

and that the commenter intended to 

reference supplemental proposed 

section 851.203(a)(12), which addressed 

the approval of fire protection 

equivalencies at the site manager level. 

Although this specific provision has 

been removed from the final rule, the 

equivalency process is separate from the 

variance process outlined in subpart D 

of the final rule, so no conflict exists 

within the rule. 

Section 851.30(b) establishes that a 

variance application must contain the 

requirements specified in final rule 

section 851.31. 

Section 851.31—Variance Process 

Section 851.31 of the final rule 

describes the variance process 

requirements. Several commenters (Exs. 

15, 16, 29, 31, 37, 42, 46, 49) expressed 

concern over the proposed requirement 

to resubmit existing exemptions, 

especially those exemptions involving 

fire safety (Exs. 31, 37, 42). Commenters 

stated that this requirement would 

result in a significant increase in 

exemption requests, and this, in turn, 

would result in increased cost including 

the need for additional resources to 

manage the risk pending reapproval. A 

few commenters suggested that the rule 

be reworded to incorporate previous 

exemptions and equivalencies (Ex. 16, 

31, 37, 49). DOE notes the commenters’

concerns and has revised the final rule. 

Section 851.31(a) requires contractors 

desiring a variance from a safety and 

health standard established in final rule 

851.23 to submit a written application 

to the appropriate CSO. Section 

851.31(a)(1) and (2) established that the 

CSO may forward the application to the 

Assistant Secretary for Environment, 

Safety and Health. If the CSO does not 

forward the application to the Assistant 

Secretary, the CSO must return the 

application to the contractor with a 

written statement explaining why the 

application was not forwarded. 

Final rule section 851.31(a)(3) 

requires upon receipt of the variance 

application from the CSO, the Assistant 

Secretary for Environment, Safety and 

Health to review the application for a 

variance, and make a written 

recommendation to either approve the 

application, or approve the application 

with conditions, or deny the 

application. In this process, the 

Assistant Secretary for Environment, 

Safety and Health ensures uniformity in 

grant variances and provides the 

consistency needed the variance 

process. 

One commenter (Ex. 49) expressed 

concern that the proposed rule is 

unclear as to whether the CSO can grant 

an exemption if the Assistant Secretary 

for Environment, Safety Health does 

disagrees or fails to respond during the 

30-day review period. This commenter 

suggested that the rule include language 

that states that the CSO may grant an 

exemption if the Assistant Secretary 

fails to respond, or even if the Assistant 

Secretary disagrees, during the 30-day 

review period. DOE has revised the final 

rule to elevate approval authority to the 

appropriate Under Secretary, which 

requires the appropriate Under 

Secretary to ‘‘consider’’ the Assistant 

Secretary’s ‘‘recommendations.’’ DOE 

has revised the final rule to elevate 

approval authority to the appropriate 

Under Secretary, which requires the 

appropriate Under Secretary to consider 

the Assistant Secretary’s 

recommendations. 

Two commenters (Exs. 30, 60) 

expressed concern that the 

supplemental proposal might be 

interpreted as allowing exemptions to 

go into effect within 30 days if EH–1 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6901 

fails to act on an exemption review. The 

commenters believed that this maybe an 

unrealistic deadline if there is a backlog 

of exemption requests, and could result 

in unwarranted exemption approvals. 

DOE notes, the variance process in the 

final rule does not establish a time limit 

for EH–1’s review of contractor variance 

requests. 

Another question raised by a 

commenter (Ex. 49) was whether 

exemptions of rule requirements could 

be incorporated in the contractor worker 

safety and health plan and be approved 

through CSO approval of this plan. The 

approval authority for a variance is 

higher than that for a written program. 

Variances may not be approved by 

incorporating a variance request in the 

worker safety and health program, 

which is reviewed and approved by the 

Head of DOE Field Element. 

A few commenters (Exs. 28, 37, 45, 

51) concerned about a potentially 

lengthy variance approval process, 

requested that a specific time period 

(e.g., 45 days) be set for DOE to act on 

an exemption request. Some of these 

commenters were concerned that the 

variance approval process could delay 

approval of a contractor’s worker safety 

and health program, resulting in a 

temporary facility shutdown. As noted 

in the discussion of subpart B of the 

final rule, DOE does not intend for 

approval of the contractor’s safety and 

health program to be contingent upon or 

related to approval of outstanding 

variance request. To clarify this intent, 

DOE has removed a provision from 

subpart B of the final rule that required 

contractors to identify, in their 

programs, situations for which 

exemptions were needed. As a result, 

action on variance requests alone will 

not delay approval of a contractor’s 

worker safety and health program. 

A few commenters (Exs. 28, 45, 51) 

argued that exemption relief should not 

be limited to Subpart C but should be 

available for relief form provisions in all 

subparts of the rule. DOE disagrees with 

the commenter, however, because the 

standards listed in section 851.23 of the 

final rule are generally more 

prescriptive in nature than the other 

programmatic requirements in the rule. 

For instance, there may be many ways 

for a contractor to meet the intent of a 

programmatic requirement (such as 

management responsibilities). For this 

reason, final rule section 851.31(a) 

specifies that the variance process in the 

final rule applies only to the safety and 

health standards prescribed in final rule 

section 851.23. 

Another commenter (Ex. 13) 

suggested that the DOE expand the 

exemption process to provide for an 

exemption of an entire facility from one 

or more requirements, via a single 

exemption request. This commenter felt 

that such a broad exemptions might be 

appropriate for a facility that is 

scheduled for closure or transfer of title. 

DOE disagrees with this commenter. 

The variance process is intended to 

provide relief from a specific 

requirement due to specific 

circumstances present in a specific work 

site. The provisions are not intended to 

provide wholesale exemptions from 

standards at entire facilities. DOE notes 

that the standards mandated in final 

rule section 851.23 are consistent with 

the standards required by DOE Order 

440.1A. The majority of these standards 

have been applicable to DOE worksites 

through DOE Order 440.1A and a 

variety of predecessor orders and 

contract clauses for decades. In 

addition, DOE believes that sufficient 

flexibility for closure facilities is 

provided through final rule section 

851.21(b), which allows contractors to 

submit to the Head of DOE Field 

Element a list of closure facility hazards 

that cannot be fully abated and/or 

controlled within 90 days of being 

identified. 

Section 851.31(b) establishes 

procedures for processing defective 

variance applications. The Assistant 

Secretary for Environment, Safety and 

Health can return an application with a 

written explanation if it does not 

contain the information required to 

make a determination. 

Section 851.31(c) establishes the 

required content for a variance 

application. Like the corresponding 

sections of the previous supplemental 

proposed, final rule sections 

851.31(b)(1) through (3) specify that a 

variance application must contain the 

name and address of the contractor, the 

address of the DOE site(s) involved, and 

a specification of the standard from 

which the contractor seeks a variance. 

Several commenters (Exs. 10, 30, 40, 

54, 55, 60, 62) expressed concern at the 

lack of worker notification and 

involvement in the proposed exemption 

process and requested that when a 

contractor applies for an exemption, the 

exemption request (and any replies to 

that request) be posted in a designated 

area in the workplace at the time of the 

request. These commenters noted that 

worker input should be required and 

solicited, and requested that workers 

and their representatives be fully able to 

participate in any discussions and 

appeal any decision. After reviewing 

these comments, DOE has added several 

provisions to the final rule to address 

these concerns. For instance, section 

851.31(c)(4) requires that the 

applications include any requests for a 

conference, which as clarified in final 

rule section 851.34 allow contractors 

and workers to present facts on how 

they would be affected by the variance. 

In addition, sections 851.31(c)(5) and (6) 

require that the application include a 

statement that the contractor has 

informed the affected workers of the 

application through appropriate 

methods, as well as a description of how 

workers were informed of the 

application and of their right to petition 

the Assistant Secretary of Environment, 

Safety and Health for a conference. 

Section 851.31(c)(5) further clarifies that 

appropriate methods for notifying 

workers of the application include 

giving a copy of the application to the 

workers’ authorized representative, 

posting a statement at the place(s) where 

notices to workers are normally posted, 

giving a summary of the application and 

specifying where a copy may be 

examined, and other appropriate means. 

One commenter (Ex. 62) believes that 

the rule should clarify the required 

content for an exemption, and that the 

required content should be based on 

OSHA’s required content for variances. 

This commenter, as well as two others 

(Exs. 44, 60), also suggested that the 

proposed rule be revised to incorporate 

OSHA’s approach which, according to 

the commenters, requires a clear 

demonstration that worker safety will 

not be negatively affected by the 

variance and establishes the procedures 

needed to provide a fair and transparent 

exemptions process. These commenters 

argued that OSHA’s approach permits 

employers to apply for variances, but 

requires notice to affected employees 

and the public and gives them the 

opportunity to participate in a hearing. 

These commenters believed that a 

review process that provides the public, 

affected workers and their 

representatives, with ample notice and 

the opportunity to have their views 

considered would help ensure 

transparency, accountability, and 

integrity in the DOE rule. One of these 

commenters (Ex. 62) further requested a 

30-day review period for workers and 

believed that decisions regarding an 

exemption should be published in the 

Federal Register within 10 days of 

issuance. 

DOE agrees in part with these requests 

and, as discussed above, has included 

provisions for worker notification and 

involvement in the variance process in 

final rule sections 851.31(c)(4) through 

(6). DOE does not agree, however, that 

parties not impacted by the variance 

request be notified of the application. 

The final rule, however, does not 

preclude workers from sharing concerns 


cprice-sewell on PROD1PC66 with RULES2
6902 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

with any party regarding workplace 

safety and health matters at their own 

discretion. 

Section 851.31(d) describes the types 

of variances for which a contractor may 

apply. These are: Temporary variances, 

permanent variances, and national 

defense variances. Section 851.31(d)(1) 

defines the purpose of a temporary 

variance. A temporary variance allows 

contractors a short-term exemption from 

a workplace safety and health standard 

when they cannot comply with the 

requirements by the prescribed date 

because the necessary construction or 

alteration of the facility cannot be 

completed in time or because technical 

personnel, materials, or equipment are 

temporarily unavailable. To be eligible 

for a temporary variance, a contractor 

must implement an effective 

compliance program as quickly as 

possible. In the meantime, the 

contractor must demonstrate to the 

appropriate Under Secretary and the 

Assistant Secretary for Environment, 

Safety and Health, that all available 

steps are being taken to safeguard 

workers. DOE does not consider the 

inability to afford compliance costs to 

be a valid reason for requesting a 

temporary variance. 

Section 851.31(d)(2) of the final rule 

establishes the requirements for a 

permanent variance. A permanent 

variance grants an exemption from a 

workplace safety and health standard to 

contractors who could prove that their 

methods, conditions, practices, 

operations, or processes provide 

workplaces that are as safe and healthful 

as those that follow the prescribed 

standard. To decide whether to 

recommend granting a permanent 

variance to the appropriate Under 

Secretary, The Assistant Secretary for 

Environment, Safety and Health reviews 

the contractor’s application and, if 

appropriate, visits the workplace to 

confirm the facts provided in the 

application. If the request has merit, the 

Assistant Secretary could recommend 

granting a permanent variance as 

described in final rule section 851.32. 

Final permanent variance orders will 

detail the contractor’s specific 

responsibilities and requirements and 

explain exactly how the contractor’s 

method varies from the regulation’s 

requirement. 

Section 851.31(d)(3) of the final rule 

establishes the criteria for granting a 

variance from a workplace safety and 

health requirement for reasons of 

national defense. The Department will 

use national defense variances to grant 

reasonable exemptions from workplace 

safety and health standard requirements 

to avoid serious impairment of national 

defense. The contractor must submit a 

statement showing how the conditions, 

practices, means, methods, operations, 

or processes used would give workers a 

safe and healthful place of employment 

in a manner that is, to the extent 

practicable taking into account the 

national defense mission, consistent 

with the standard form which the 

variance is requested. A national 

defense variance will only be granted 

for a maximum of six months unless a 

showing is made that additional time is 

essential to the national defense 

mission. 

One commenter (Ex. 11) believed that 

the national defense exemption 

provisions included in the 

supplemental proposal would create a 

potential ‘‘loop hole’’ by allowing 

practices that would result in worker 

injuries and illnesses in the name of 

achieving national defense ‘‘in an 

efficient and timely manner.’’ DOE 

notes that the NDAA mandates 

flexibility for national defense activities. 

DOE believes the language in the final 

rule provides such flexibility without 

creating the potential for disregarding 

the standards set forth in subpart C. 

Another commenter (Ex. 62) 

acknowledged that national security 

exemptions are warranted, but noted 

that such exemptions should be rare. 

This commenter believed that national 

security concerns could be addressed 

directly in the rulemaking, as with 

DOE’s exemption from OSHA standards 

on explosives, through careful writing of 

the rule. While agreeing that national 

defense variances should be rare, DOE 

does not agree that the need for 

variances can be removed by more 

specific rule drafting. DOE notes that 

the provision exempting DOE from 

OSHA standards regarding explosives 

was included because existing DOE 

explosive safety requirements are more 

directly relevant to DOE operations and 

thus are more protective of the DOE 

workforce. 

Section 851.32—Action on Variance 

Requests 

Section 851.32 of the final rule 

establishes procedures for an approval 

recommendation of a variance 

application. Specifically, section final 

rule 851.32(a)(1) establishes if the 

Assistant Secretary for Environment, 

Safety and Health recommends approval 

of a variance application, the Assistant 

Secretary is required to forward the 

application and the approval 

recommendation to the Under Secretary. 

The recommendation must include a 

discussion of the basis for the 

recommendation and any terms and 

conditions proposed for inclusion as 

part of the approval. 

Section 851.32(a)(2) requires that if 

the Under Secretary approves the 

variance to notify the Assistant 

Secretary for Environment, Safety and 

Health who must notify the Office of 

Price-Anderson Enforcement and the 

appropriate CSO. The CSO is required 

to notify the contractor. Final rule 

section 851.32(a)(3) requires the 

Assistant Secretary include in the 

notification a reference to the safety and 

health standard or portion thereof, that 

is the subject of the application, a 

detailed description of the variance, the 

basis for the approval and any terms and 

conditions of the approval. 

Section 851.32(a)(4) and (5) 

establishes that if the Under Secretary 

denies a variance, the Under Secretary 

must notify the Assistant Secretary for 

Environment, Safety and Health and the 

CSO who must notify the contractor. 

The notification must include the 

grounds for the denial. 

Section 851.32(b) establishes the 

approval criteria for a variance 

application. The Assistant Secretary for 

Environment, Safety and Health may 

recommend to the Under Secretary 

granting a variance only if the variance: 

(1) Is not inconsistent with section 3173 

of the NDAA; (2) Would not present an 

undue risk to worker safety and health; 

(3) Is warranted under the 

circumstances; (4) Satisfies the 

requirements of § 851.31 of this part for 

the type of variances requested. 

A few commenters (Exs. 28, 45, 51) 

believed that the wording in the 

exemption criteria in supplemental 

proposed rule section 851.301(a)(1) 

should be changed from ‘‘Be consistent 

with law’’ to ‘‘Be consistent with 

applicable law.’’ Another commenter 

(Ex. 29) requested that the proposed 

language in the supplemental notice of 

proposed rulemaking section 

851.301(a)(1) be changed to ‘‘Be 

consistent with the intent of the law,’’

noting that if a contractor could achieve 

full compliance with the law, an 

exemption would not be needed. This 

basic criterion is clarified in final rule 

section 851.32(c)(1), which states that 

DOE may grant a variance only if the 

variance ‘‘is consistent with section 

3173 of the NDAA not prohibited by 

law.’’

Another commenter (Ex. 44) 

requested that the proposed rule be 

revised to explicitly state that there may 

not be a reduction in worker safety 

through the granting of an exemption, 

and that the rule should require a 

preponderance of evidence that worker 

safety will not be compromised. The 

commenter also requested that the rule 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6903 

allow adequate determination to be 

made regarding the effectiveness of 

alternative protective measures and that 

DOE establish expiration dates for 

approved exemptions, rather than giving 

the contractors almost complete leeway 

to establish their own exemptions. DOE 

agrees with this commenter and in final 

rule section 851.32(c)(2) requires a 

determination that the variance would 

not present an undue risk to worker 

safety and health prior to the Under 

Secretary granting the variance. 

One commenter (Ex. 39) requested 

that the rule make clear that hazards 

that are inherent to the work being 

performed are excluded from the 

provision that states that an exemption 

must be free of recognized hazards. DOE 

has removed the language stating that 

the exemption must be free of 

recognized from the variance criteria 

established in the final rule. DOE notes, 

however, that contractors are required 

by section 851.32(c) to demonstrate that 

alternate controls will provide a 

workplace that is as safe and healthful 

as that required by the standard and also 

requires a determination that the 

variance will not present an undue risk 

to worker safety and health. These 

sections clarify the Department’s intent 

that variances not diminish protection 

provided to the DOE workforce. 

Section 851.31(c) establishes 

procedures for the Assistant Secretary 

for Environment, Safety and Health to 

recommend denial of an application. If 

denial is recommended, the Assistant 

Secretary is required to give prompt 

notice to the CSO, who must either 

notify the contractor that the application 

is denied or, if the CSO disagrees with 

the recommendation, forward the 

application, the recommendation, the 

statement of the grounds for denial, and 

a written statement explaining the basis 

for disagreement with the Assistant 

Secretary’s decision to the appropriate 

Under Secretary who will review the 

package and make a decision. All denial 

notices must include, or be 

accompanied by, a brief statement of the 

grounds for the denial, as required by 

section 851.31(c)(4) of the final rule. A 

denial of an application pursuant to this 

paragraph shall be without prejudice to 

submitting of another application. 

Section 851.32(d) establishes the 

grounds for denial of a variance 

application. A variance application can 

be denied: (1) When enforcement of the 

violation would be handled as a de 

minimis violation; (2) when a variance 

is not necessary, for example, when an 

interpretative ruling is granted on a 

specific standard or portion thereof; (3) 

when there is a situation that does not 

meet the requirement for a variance set 

forth in the approval criteria. 

Section 851.33—Terms and Conditions 

Section 851.33 establishes the 

required terms and conditions of an 

approved variance. The section 

establishes that a variance may contain, 

but is not limited to, provisions that 

limit its duration, require alternative 

action, require partial compliance, or 

establish a schedule for full or partial 

compliance. No comments were 

submitted on the corresponding 

provisions of the supplemental notice of 

proposed rulemaking during the public 

comment period. 

Section 851.34—Requests for 

Conferences 

Section 851.34 allows for a worker to 

request a conference. Any affected 

contractor or worker may file a request 

for a conference on the application with 

the Assistant Secretary for Environment, 

Safety and Health. A request must 

include a statement showing how the 

contractor or worker would be affected 

by the variance applied for, the 

specification in the application that is 

denied and a summary of evidence in 

support of each denial, and any views 

or arguments on any issue of facts or 

law presented. 

As discussed in section 851.31(b), 

several commenters (Ex. 10, 30, 54, 55) 

believed that worker input should be 

required and solicited, and requested 

that workers and their representatives 

be fully able to participate in any 

discussions and appeal any decision. 

DOE agrees with this request and 

incorporated worker notification 

requirements and worker rights to 

petition for a conference into the final 

rule. 

Section 851.34(c) of the final rule, 

allows the Assistant Secretary for 

Environment, Safety and Health, or its 

designee, to determine whether to meet 

with an affected contractor or worker. 

F. Subpart E—Enforcement Process 

Subpart E of this rule describes how 

DOE will enforce the rule’s worker 

safety and health program requirements. 

Specifically, the subpart outlines the 

rights and responsibilities of DOE and 

contractors during inspections, 

investigations, and resulting 

enforcement actions. The enforcement 

options available to DOE are designed to 

provide a flexible framework that 

encourages settlement of enforcement 

proceedings while prescribing clear, 

timely communication between DOE 

and contractors throughout all phases of 

enforcement activities. 

DOE received support for the 

elements of the enforcement program 

from several commenters, who generally 

view DOE’s approach as reasonable and 

sound. One commenter (Ex. 51) strongly 

agreed with the enforcement process of 

the supplemental proposal and expected 

that the self-auditing process would 

create positive incentives for contractors 

to self-identify and correct hazards. 

Additionally, this commenter found the 

enforcement process’s purpose and 

procedures to be clearly defined, as 

were the classifications and categories 

of violation severity levels. 

Other commenters requested 

clarification of various points of the 

rule. For instance, one commenter (Ex. 

5) asked DOE to clarify whether only 

deviations from the rule could result in 

financial penalties. The commenter 

suggested that ‘‘it would be better to use 

the preliminary hazard analysis (PHA) 

process such that fines and penalties 

could be imposed if sites violated 

technical safety requirements.’’ DOE 

presumes that this commenter is 

distinguishing between deviations from 

the letter of the rule and deviations from 

their approved written program. In fact, 

DOE intends for both the approved 

worker safety and health program and 

the applicable requirements of Subpart 

C to be enforceable. DOE recognizes that 

violations of standard requirements may 

be the result of worker safety and health 

program failures. In these instances 

worker safety and health program 

failures may be cited. 

Another commenter (Ex. 6) suggested 

that safety and health-related 

enforcement should be performed by 

OSHA rather than DOE. In its view, 

DOE does not have the capabilities (e.g., 

certified occupational safety and health 

inspectors) to enforce the rule. DOE 

agrees that a qualified staff is an 

important component of an effective 

enforcement program and notes that 

DOE, through authority granted under 

the AEA of 1954, has enforced 

occupational safety and health 

requirements through contracts on DOE 

sites since its inception. Section 3173 of 

the NDAA mandates DOE to promulgate 

this rule to provide a regulatory 

enforcement and civil penalty 

mechanism. The Office of PriceAnderson Enforcement is staffed with 

trained, qualified professionals capable 

of performing enforcement inspections 

and investigations. 

Several of the comments (Exs. 12, 13, 

37) sought clarification of certain 

aspects of the enforcement process. For 

instance, one commenter (Ex. 13) found 

some of the terminology (e.g., 

‘‘deception,’’ ‘‘willfulness,’’ ‘‘gross 

negligence’’) too subjective for use in 


cprice-sewell on PROD1PC66 with RULES2
6904 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

determining the severity of violations. 

The commenter suggested that further 

guidance is needed to clearly define the 

DOE’s intended enforcement of the rule. 

Clear definitions were also requested by 

a commenter (Ex. 37) who suggested 

that DOE adopt provisions from OSHA’s 

enforcement processes on severity of 

findings, threshold criteria for appeals, 

and an independent and equitable 

appeals process. Another commenter 

(Ex. 12) felt the rule did not clearly 

indicate how potential violations would 

be identified and screened. This 

commenter suggested that DOE develop 

compliance directives such as those 

used by OSHA. DOE agrees that 

enforcement guidelines with clearly 

defined terminology will aid the 

Department in ensuring fair and 

consistent enforcement. DOE has 

revised Appendix B of the final rule 

(previously Appendix A of the 

supplemental proposed rule) to clarify 

severity levels, and final rule section 

851.44 clearly describes the 

administrative appeals process. 

Additionally, DOE intends to publish 

enforcement guidance supplements 

(EGS) that, coupled with Appendix B to 

the final rule, will further guide the 

enforcement process. 

A commenter (Ex. 16) concerned 

specifically with the Noncompliance 

Tracking System (NTS) process and 

NTS reporting thresholds suggested that 

DOE use an enforcement process similar 

to that used for the enforcement of 

Price-Anderson Amendment Act 

(PAAA). This commenter indicated that 

DOE could benefit from its experience 

of implementing the PAAA process over 

the past 10 years, particularly by 

integrating costly NTS reporting with 

Occurrence Reporting and Processing 

System (ORPS), making use of fully 

integrated contractor management 

systems (as in draft DOE Order 226.1), 

following the Nuclear Regulatory 

Commission (NRC) precedents by 

eliminating subjective NTS reporting 

thresholds, and encouraging contractors 

to shift from ‘‘event driven’’ to 

‘‘assessment driven’’ reporting. While 

not opposed to further clarification of 

NTS reporting thresholds, DOE notes 

that the DOE community has experience 

in implementing tracking programs. 

Contractors have long been responsible 

for recording and analyzing 

occupational safety and health (OSH) 

noncompliances and tracking abatement 

progress as required by DOE Order 

440.1A. To help refine the process 

under the final rule, the Office of PriceAnderson Enforcement plans to develop 

and publish in appropriate EGSs, 

thresholds for voluntary contractor 

reporting of noncompliances into NTS. 

The Office of Price-Anderson 

Enforcement expects to periodically 

adjust the thresholds as additional 

experience is gained under the final 

rule. Also, this office will incorporate 

lessons learned from the reporting of 

nuclear violations into NTS. 

Several commenters (Exs. 31, 37, 42, 

57, 58) expressed concern that the 

proposed rule would not provide for 

defenses that are commonly applied to 

American industry in OSHA 

enforcement proceedings. These 

commenters offered specific examples, 

including defenses related to a standard 

being ‘‘unenforceably vague,’’ lack of 

employee endangerment, lack of 

employer knowledge of a hazard, 

technological or economic feasibility of 

abatement for noise and toxic substance 

hazards or regulatorily proposed 

mitigation plans, unpreventable or 

unforeseeable employee misconduct, 

lack of employer control over a hazard, 

and emergency conditions. DOE 

recognizes the value of additional 

guidance on these matters but notes that 

affirmative defenses from OSHA 

citations are not built into the regulatory 

text of the OSHA standards as suggested 

by some of the commenters. Such 

defenses are instead discussed in 

OSHA’s enforcement guidance, 

including the Field Inspection 

Reference Manual. The defenses 

commonly addressed in OSHA guidance 

include unpreventable employee 

misconduct, impossibility, greater 

hazard, and multi-employer workplaces. 

DOE intends to follow a similar 

approach by incorporating guidelines on 

these types of affirmative defenses in 

appropriate EGSs to the extent these 

defenses are appropriate for DOE. 

Another commenter (Ex. 11) suggested 

that the rule should contain details of an 

inspection targeting process that 

outlines the procedures DOE will use as 

the criteria for selecting facilities for 

inspection. The commenter indicated 

that OSHA has published criteria of this 

type, which are used to ensure effective 

use of limited enforcement resources. 

DOE does not agree with this comment. 

There is no statutory requirement that 

DOE outline its process for identifying 

and prosecuting violations of the Part 

851. Such a process would interfere 

with the discretion necessary to 

effectively implement the statutory 

mandate. However, as previously 

mentioned, DOE does intend to develop 

EGSs that will present guidelines for the 

enforcement process. The Office of 

Price-Anderson Enforcement expects to 

adapt many of OSHA’s inspection 

protocols to the unique DOE 

enforcement regime. 

DOE received several comments that 

questioned whether DOE can effectively 

regulate contractors to the extent 

indicated by this part. For example, a 

commenter (Ex. 6) questioned whether 

DOE would enforce this regulation for 

its Headquarters (HQ), regional, or site 

offices, and suggested that HQ will need 

to set up an independent oversight 

office. These commenters may not be 

aware that the Office of Price-Anderson 

Enforcement, which has independent 

oversight authority, currently enforces 

nuclear safety requirements, will 

expand its enforcement function to 

include enforcement of the worker 

safety and health provisions of this rule. 

Another commenter (Ex. 13) 

described the enforcement policy as 

establishing a highly complex nuclear 

safety process that far exceeds what 

OSHA expects of the industrial sector. 

DOE disagrees with this statement. The 

worker safety and health program 

implemented in the final rule is based 

on the program management provisions 

established in DOE Order 440.1A and its 

predecessor orders to address 

occupational safety and health at DOE 

facilities. The worker safety and health 

program was based in large measure on 

the OSHA Voluntary Safety and Health 

Management Guidelines published in 

1989. Accordingly, DOE believes that 

the provisions of the final rule are 

generally consistent with what OSHA 

expects of effective worker safety and 

health programs in the private sector. 

Compliance costs and accounting 

were a concern for several commenters. 

Two of these commenters (Exs. 31, 48) 

felt that DOE enforcement will result in 

increased cost to contractors ‘‘to 

respond to new and extensive 

enforcement activities.’’ DOE disagrees. 

Contractors with effective integrated 

safety management programs, which 

incorporate both nuclear safety and 

worker safety and health programs, have 

little to worry about. The Office of PriceAnderson Enforcement intends to 

enforce both nuclear and worker safety 

and health programs from the same 

office, using similar operating 

principles. The Office of Price-Anderson 

Enforcement will most likely consider 

enforcement action in significant 

situations. Another commenter (Ex. 29) 

suggested that—for the purposes of the 

Major Fraud Act—the rule should 

include a provision stating when the 

contractor must begin segregating the 

costs of responding to a DOE safety and 

health investigation, since these costs 

will not be recoverable if a violation is 

confirmed. DOE has significant 

experience with the Major Fraud Act in 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6905 

connection with the implementation of 

part 820. Accordingly, the same 

procedures and requirements that DOE 

has already successfully applied to 

enforcement actions under 10 CFR part 

820 will apply to enforcement actions 

under 10 CFR part 851. 

DOE received a number of comments 

in addition to those discussed above 

that recommended that DOE incorporate 

various aspects of OSHA’s enforcement 

program. A few commenters (Ex. 29, 37, 

47) believed that DOE should use an 

enforcement process based on OSHA to 

better serve the needs of worker safety 

and health. For instance, one 

commenter (Ex. 37) felt strongly that an 

‘‘OSHA approach to safety 

enforcement’’ is more appropriate and 

better understood by DOE management 

and operating contractors and 

subcontractors than the nuclear safety 

enforcement approach proposed in the 

rule. The commenter suggested that 

DOE consider relying upon OSHA 

enforcement guidance and case law for 

determining violations and penalties 

under the DOE rule, particularly in 

regard to the General Duty Clause and 

affirmative action defenses. DOE does 

not agree with this commenter’s 

assertion that contractors are unfamiliar 

with the enforcement approach in this 

rule. This rule will apply to contractors 

and their subcontractors, just as the 

nuclear safety rules apply. Therefore, 

these parties should already be familiar 

with the enforcement regime and the 

flow down of requirements. Two other 

commenters (Exs. 38, 57) believe that, 

unlike the OSHA enforcement process, 

the DOE enforcement process in the 

supplemental notice of proposed 

rulemaking would not afford contractors 

the right to a hearing with the ability to 

present witness testimony before 

penalties are assessed. DOE disagrees 

and notes that the final rule gives 

contractors several opportunities to 

contest notices of violation and provide 

evidence (including witness testimony) 

to support their position. These 

opportunities include the right, under 

final rule section 851.44, to an 

administrative appeal to the Office of 

Hearings and Appeals in accordance 

with 10 CFR 1003, Subpart G, which 

establishes procedural regulations for 

the DOE Office of Hearings and Appeals 

with respect to private grievances and 

redress.) The procedures under 10 CFR 

1003.77 also allow petitioners to seek 

further judicial review of the final order 

issued by the Office of Hearings and 

Appeals. 

Another commenter (Ex. 42) 

expressed concern that the 

supplemental notice of proposed 

rulemaking does not address whether 

DOE will use contractor selfassessments as a basis for enforcement 

actions. This commenter recommended 

that DOE adopt OSHA’s policy 

regarding the treatment of voluntary 

employer safety and health self-audits. 

DOE notes that contractors are 

responsible for identifying and tracking 

noncompliances. The Office of PriceAnderson Enforcement does not intend 

to routinely ask to see contractor selfassessment reports for the purpose of 

identifying noncompliances; however, 

the Office may review such documents 

during the course of a program review 

or during an investigation prompted by 

an event such as an accident, recurring 

or repetitive condition, or programmatic 

failure. 

One commenter (Ex. 48) suggested 

that ‘‘The overall effect of this rule 

* * * as written will be to burden both 

the Government and its contractors with 

a potentially massive reporting and 

analysis effort. Contractors will be 

compelled to report each variation in 

standard compliance and the DOE 

enforcement and investigative arm [will 

be compelled] to read and screen all 

reports for NOV issue.’’ It appears to 

DOE that this commenter assumes that 

a contractor may have a significant 

number of noncompliances on the 

effective date of this rule. This should 

not be the case since contractors should 

already be in compliance with DOE 

Order 440.1A, which provides the basis 

for this final rule. Noncompliances that 

existed in the past should have been 

identified, analyzed, and tracked 

through abatement. Any 

noncompliances that still exist, should 

already be in the contractors’ tracking 

systems. The magnitude of emerging 

noncompliances should not overwhelm 

reporting systems. 

The same commenter (Ex. 48) also 

views the rule as providing only 

punitive compliance mechanisms. The 

commenter argued that relying only on 

punitive measures will reverse the 

successful partnering of DOE and its 

contractors that has achieved significant 

safety and health performance in recent 

decades. The commenter suggested that 

the DOE rule will shift the focus of 

contractor worker safety and health 

practice to policing for conditional 

violations and away from successful 

proactive programs. DOE disagrees, 

believing instead that this rule is more 

likely to enhance the relationship 

between DOE and its contractors. DOE 

contractors have already made 

contractual commitments to perform 

their work in accordance with DOE’s 

safety and health requirements as 

established in DOE Order 440.1A. The 

rule will only clarify and strengthen 

both DOE’s and the contractor 

understands of the requirements. 

Section 851.40—Investigations and 

Inspections 

Section 851.40 establishes DOE’s right 

to conduct investigations and 

inspections to confirm contractor 

compliance with the rule and describes 

the steps DOE must take when 

performing an investigation or 

inspection. The section also gives 

contractors certain rights and 

responsibilities during inspections and 

investigations. 

Section 851.40(a) gives the Director 

the right to take any actions necessary 

to conduct inspections and 

investigations of contractor compliance 

with health and safety program 

requirements. In order to conduct these 

inspections, DOE enforcement officers 

have the right to prompt entry into 

worksites. 

One commenter (Ex. 42) indicated 

that DOE must establish clear 

procedures for OE to carry out 

investigations and enforcement actions. 

This commenter believed that these 

procedures should specify what events 

will trigger an informal conference and 

subsequent enforcement action and 

whether Type A and B investigations 

will be used as the basis for legal action. 

Again, DOE finds that it is more 

appropriate to establish inspection 

protocols EGSs. These EGSs, coupled 

with Appendix B to the final rule, will 

guide the enforcement process and 

address the issues raised by the 

commenter. The Office of PriceAnderson Enforcement will use all 

available information in exercising its 

enforcement authority. 

A second commenter (Ex. 5) inquired 

whether the Office of Price-Anderson 

Enforcement is considering revising the 

existing guidance provided in the 

Operational Procedures (Identifying, 

Reporting, and Tracking Nuclear Safety 

Noncompliances Under PAAA, June 

1998 edition) or if the Office will 

develop a stand-alone guidance 

document for the review and reporting 

determination of potential noncompliances. As stated above, the Office 

of Price-Anderson Enforcement intends 

to provide EGSs that will cover NTS 

reporting thresholds. 

A number of commenters (Exs. 11, 16, 

28, 29, 35, 36, 37, 43, 45, 47, 51) 

expressed the opinion that Voluntary 

Protection Program (VPP) sites should 

not be subject to programmed 

inspections or should qualify for a 

reduction in inspections. DOE agrees 

that VPP sites are likely to have the best 

worker safety and health programs and 

be in substantial compliance with the 


cprice-sewell on PROD1PC66 with RULES2
6906 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

provisions of this rule. Nevertheless, 

DOE believes it is important that VPP 

sites be subject to all of the provisions 

of this rule. The Office does not expect 

these sites to have many NTS-reportable 

violations, but the Office will respond 

as necessary to significant violations 

and develop appropriate programmed 

inspection strategies. 

One commenter (Ex. 31) asked 

whether inspection and investigation 

authority will be delegated to the field 

or site office level. Enforcement 

authority rests with the Office of PriceAnderson Enforcement and will not be 

delegated to the field or site office 

levels. DOE does not, however, intend 

to interfere with inspection and 

investigation activities conducted by the 

field or site offices. A commenter (Ex. 

32) suggested that the rule address how 

the Office of Price-Anderson 

Enforcement will take the results of 

inspections that are performed at DOE 

sites by the Office of Independent 

Oversight and Performance Assurance’s 

Office of Safeguards and Security 

Evaluations (OA–10) and EH’s Office of 

Quality Assurance Programs (EH–31), 

into account when determining the 

frequency and necessity of its own 

inspections. The Office of PriceAnderson Enforcement will use all 

available information, from any source, 

in developing enforcement protocols 

and plans, and making enforcement 

decisions. 

Section 851.40(b) requires contractors 

to cooperate with DOE throughout 

enforcement activities. DOE received no 

comments on section 851.40(b) during 

the public comment period. 

The right of a worker or worker 

representative to request an 

investigation is included in final rule 

section 851.40(c). Although the worker 

may remain anonymous, the 

investigation request should identify the 

activity of concern as specifically as 

possible and include supporting 

documentation. Several commenters 

(Exs. 30, 54, 55, 60) suggested that 

persons requesting investigations or 

inspections be allowed to remain 

anonymous. DOE agrees, final rule 

section 851.40(c) now includes a 

provision establishing a worker’s or 

worker representative’s right to remain 

anonymous upon filing a request for an 

inspection or investigation. 

Two commenters (Exs. 26, 39) asked 

DOE to clarify that it is up to the 

Director to determine whether a 

complaint will be investigated and 

suggested changing the subject of this 

paragraph from ‘‘any person’’ to a 

‘‘covered worker.’’ The commenters 

thought such a change would avoid the 

implication that DOE will investigate all 

complaints, even those made by a 

private citizen who called with an 

investigation request. DOE agrees that 

the original language in supplemental 

proposed section 851.400(c) too board. 

Accordingly, final rule section 851.40(c) 

clarifies DOE’s intent to allow workers 

or their representatives the opportunity 

to request an investigation or inspection 

of a specific work place safety and 

health concern. DOE intends to respond 

to all worker and worker representative 

requests for investigation or inspection, 

at least to the extent needed to 

determine if further action is necessary 

or warranted. If the initial investigation 

reveals that further investigation or 

inspection is unwarranted, the Director 

may, under final rule section 851.40(i), 

close the investigation. 

It is important to note that the Office 

of Price-Anderson Enforcement expects 

that workers or worker representatives 

will have first presented their concerns 

through their respective Employee 

Concerns Programs (ECPs), but without 

satisfactory resolution. Several related 

comments (Exs. 31, 36, 42, 48) suggested 

that this rule recognize the ECP and 

contractor management as an avenue to 

resolve concerns involving safety 

matters. Two of these commenters (Exs. 

31, 48) indicated that if the issue cannot 

be resolved, then the worker should be 

able to request an investigation but not 

an inspection; they argued that a request 

for inspection should be handled only 

through the established ECP program or 

contractor management chain of 

command. 

DOE notes that final rule sections 

851.20(a)(6) through (9) establish 

provisions for contractors to develop 

and implement procedures allowing 

workers to express concerns regarding 

workplace hazards and for contractors 

to respond to those concerns. While 

DOE intends for workers to explore 

these avenues first, DOE does not feel it 

is appropriate to restrict a worker’s right 

to request an inspection or investigation 

by requiring them to try these other 

options first. DOE disagrees with the 

comment that inspections should be 

limited to the ECP or contractor chain 

of command. Onsite inspections often 

are a necessary part of an investigation 

and may give the Office of PriceAnderson Enforcement the best 

opportunity to verify whether a 

violation or noncompliance exists. 

Two commenters (Exs. 54, 55) asked 

that employees and their representatives 

be given the right to accompany the 

inspector under supplemental proposed 

section 851.400(c). One of these 

commenters (Ex. 54) stated that this 

section would not give workers or their 

representatives the right to be involved 

in any part of the inspection, except the 

right to accompany an inspector under 

supplemental proposed section 

851.10(b)(4). DOE notes that final rule 

section 851.20(b) establishes the right 

for a worker representative to 

accompany the Director during the 

physical inspection of the workplace. If 

a representative is not available, the 

Director must consult, as appropriate, 

with employees on matters of worker 

safety and health. During an evaluation 

of a noncompliance or an inspection, 

the Office of Price-Anderson 

Enforcement normally interviews 

individuals with direct knowledge of 

the workplace to gather information 

such as frequency of exposure, duration 

of exposure, and other details. The 

Office of Price-Anderson Enforcement 

expects that, through this process, the 

appropriate people would be consulted. 

One of the commenters (Ex. 54) was 

also concerned that a worker’s ability to 

request and receive copies of 

inspections and accident investigations 

in accordance with ISM and with 

supplemental proposed section 

851.10(b)(4) may be curtailed by 

portions of this section. DOE disagrees 

and notes that final rule section 

851.20(b), which mirrors the worker 

rights provisions of DOE Order 440.1A, 

clearly establishes that workers have the 

right to obtain results of inspections and 

accident investigations, as described in 

final rule section 851.20(b)(6). 

When a contractor becomes the 

subject of an investigation or inspection, 

final rule section 851.40(d) requires the 

Director to inform the contractor in 

writing. The written notification must 

describe the purpose of the action and 

be provided at the initiation of the 

investigation or inspection process. 

Three commenters (Exs. 28, 45, 51) 

requested that DOE revise supplemental 

proposed section 851.400(d) to require 

the Director to notify a contractor in 

writing prior to the initiation of a 

proceeding under the Major Fraud Act. 

A fourth commenter (Ex. 36) asked 

whether this section would change the 

Office of Price-Anderson Enforcement’s 

practice in defining a ‘‘proceeding’’

under the Major Fraud Act. DOE has 

significant experience with the Major 

Fraud Act in connection with the 

implementation of part 820. 

Accordingly, the same procedures and 

requirements that DOE has already 

successfully applied to enforcement 

actions under 10 CFR part 820 will 

apply to enforcement actions under 10 

CFR part 851. 

A commenter (Ex. 47) suggested that 

DOE indicate in the rule that all 

information pertaining to the 

investigation or inspection that is in the 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6907 

possession of DOE will be provided to 

the contractor at the initiation of the 

investigation or inspection. Although 

DOE generally provides such 

information to contractors, the Office of 

Price-Anderson Enforcement must 

retain the right not to disclose certain 

information if it believes the 

information may interfere with the 

willingness of individuals to step 

forward on a confidential basis or if 

sharing the information will hinder the 

Office’s enforcement activities. 

Therefore, DOE is not adopting this 

suggestion. 

Section 851.40(e) prohibits DOE from 

releasing to the public any information 

obtained during an investigation or 

inspection, unless the Director 

authorizes the public disclosure of the 

investigation. Once the Director 

authorizes public disclosure for an 

investigation, the information associated 

with the investigation is a matter of 

public record. Prior to and disclosure, 

DOE must determine that disclosure is 

not precluded by the Freedom of 

Information Act (FOIA), 5 U.S.C. 552, 

and Part 1004 of this title. 

DOE received several comments 

expressing concern about the Director’s 

discretion to authorize or withhold 

public disclosure of information related 

to an investigation. Three commenters 

(Exs. 26, 39, 48) wondered whether the 

Director’s discretion overrides FOIA, 

Privacy Act, and judicial determinations 

of what otherwise might remain 

confidential or be required to be 

released. These commenters were 

particularly concerned about protection 

of classified project or proprietary 

information. Two of these commenters 

(Exs. 39, 48) expressed similar concerns 

about supplemental proposed section 

851.400(f), which addressed requests for 

confidential treatment of information. 

DOE recognizes these concerns and 

confirms that the Director’s actions with 

respect to release of documents are 

always subject to the constraints of law. 

Final rule section 851.40(e) or 851.40(f) 

has been revised to clarify that 

disclosure of information is subject to 

the Freedom of Information Act. 

Section 851.40(f) clarifies that a 

request for confidential treatment of 

information under the Freedom of 

Information Act (FOIA), does not 

prevent disclosure of the information if 

the Director determines the release is in 

the public interest and is permitted or 

required by law. 

During an investigation or inspection, 

final rule section 851.40(g) allows any 

contractor to submit to DOE any 

information that the contractor feels 

explains the contractor’s position or is 

relevant to the investigation or 

inspection. DOE received no comments 

on section 851.40(g) during the public 

comment period. 

Section 851.40(h) permits the Director 

to convene, and require a contractor to 

attend, an enforcement conference to 

discuss any information related to a 

situation that might be a violation of a 

requirement in this part. Conference 

discussions might include, but are not 

limited to, the significance or causes of 

a violation, corrective action taken or 

not taken by the contractor, and 

mitigating or aggravating circumstances. 

DOE will not make a transcript and the 

conference is not normally open to the 

public. 

Two commenters (Exs. 31, 48) 

indicated that informal conferences 

should never be open to the public since 

it would hinder open dialogue and the 

cooperative nature of the conference. 

DOE agrees that enforcement 

conferences should not normally be 

open to the public, but believes that this 

is a matter that is appropriately within 

the discretion of the Director. This 

provision is consistent with the Office 

of Price-Anderson Enforcement nuclear 

safety enforcement provisions and 

practices. 

The same commenters (Exs. 31, 48) 

also noted that if the Director can 

compel contractor attendance at the 

informal conference, then the ‘‘official 

enforcement process’’ has begun at that 

point and the contractor should attend 

with legal counsel present. DOE has 

significant experience with the Major 

Fraud Act in connection with the 

implementation of part 820. 

Accordingly, the same procedures and 

requirements that DOE has already 

successfully applied to enforcement 

actions under 10 CFR part 820 will 

apply to enforcement actions under 10 

CFR part 851. With respect to the 

‘‘conferences,’’ DOE has determined that 

it is appropriate to retain the term 

‘‘informal conference’’ to retain 

consistency with section 820.22. 

Another commenter (Ex. 47) asked 

that contractors be allowed to request 

informal conferences. DOE agrees; final 

rule Appendix B (‘‘General Statement of 

Enforcement Policy’’), paragraph VII (d) 

clarifies that a contractor may request an 

enforcement conference. 

Section 851.40(i) permits the Director 

to close the investigation or inspection 

if facts show that further action is 

unwarranted. Two commenters (Exs. 31, 

48) suggested that when the Director 

closes an investigation due to lack of 

factual evidence or if evidence shows no 

violation, then the matter should be 

closed without prejudice and may not 

be reopened by the Director. DOE notes 

that the Director has the authority to 

initiate or close an investigation. If facts 

presented or discovered during the 

investigation indicate that further action 

is unwarranted, then the Director may 

close the investigation without 

prejudice. If, after the initial 

investigation is closed, facts are 

discovered which indicate that the 

investigation should be reopened or 

reconvened, then the Director may 

reopen the investigation. 

Section 851.40(j) allows the Director 

to issue enforcement letters that state 

DOE’s expectations with respect to any 

aspect of the requirements of Part 851. 

The enforcement letter, however, may 

not create the basis for a legally 

enforceable requirement pursuant to 

this part. One commenter (Ex. 29) 

inquired whether supplemental 

proposed section 851.400(j) should have 

used the term ‘‘Enforcement Guidance 

Supplements’’ rather than ‘‘enforcement 

letters.’’ DOE disagrees because the two 

terms are separate and distinct. 

Enforcement letters are issued in cases 

where DOE decides that an enforcement 

action is not required, but concludes 

that it is important to communicate a 

particular message to the contractor. An 

enforcement letter is a vehicle to 

highlight actions taken by the contractor 

that were appropriate and that formed 

the basis for not taking more formal 

enforcement actions. The enforcement 

letter will also usually identify areas (1) 

that may have been less satisfactory 

than desired but not sufficiently serious 

to warrant enforcement action, and (2) 

in which contractor attention is required 

to avoid a more serious condition that 

would require enforcement action. An 

enforcement letter may also highlight 

noteworthy contractor practices. EGSs, 

on the other hand are issued 

periodically by the Office of PriceAnderson Enforcement to provide 

clarifying guidance regarding the 

processes used in enforcement 

activities. EGSs provide information or 

recommendations only and impose no 

requirements or actions on DOE 

contractors. 

Section 851.40(k) permits the Director 

to sign, issue, and serve subpoenas. For 

NNSA sites, this responsibility is 

assigned to the NNSA Administrator in 

final rule section 851.45(a). Several 

commenters (Exs. 28, 45, 51) argued that 

this provision would present an 

apparent conflict of interest if the 

investigator can become party to the 

judicial process by signing, issuing, and 

serving subpoenas. DOE disagrees with 

this concern and notes that the Director 

and NNSA Administrator have each 

been given subpoena authority within 

their statutory purview. 


cprice-sewell on PROD1PC66 with RULES2
6908 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

Section 851.41—Settlement 

Section 851.41 encourages settlement 

of DOE enforcement proceedings and 

establishes a basic framework within 

which settlements shall proceed. This 

section presents the rights and duties of 

the Director and contractors seeking to 

resolve issues through a consent order. 

Section 851.41(a) states that DOE 

encourages settlement of any 

enforcement proceeding, if settlement is 

consistent with Part 851. At any time, 

the Director and contractor may hold a 

settlement conference, which will not 

be recorded in a transcript or open to 

the public. 

Section 851.41(b) allows the Director 

to use a consent order to resolve issues 

in an outstanding proceeding. The 

consent order must set forth the relevant 

facts, terms, and remedies to which the 

parties agree and must be signed by both 

parties. The order need not find or 

admit that a violation occurred, but 

shall constitute a final order. 

DOE did not receive any comments 

specific to section 851.41(a) or 

851.41(b), but did receive three 

comments that relate to 851.41 as a 

whole. One commenter (Ex. 30) was 

concerned that enforcement actions that 

require funding to abate hazards pose a 

‘‘special challenge to a self regulated 

entity.’’ The commenter believes that 

such actions should not be settled 

unless the settlement contains a 

resource-loaded plan that will ensure 

implementation. DOE notes that DOE 

field management are involved in all 

decision making related to enforcement 

actions, and settlement negotiations 

include appropriate cost considerations. 

The same commenter was joined by 

another (Exs. 30, 54) in suggesting that 

DOE should allow workers and unions 

to elect party status in an enforcement 

proceeding and to participate in 

settlement negotiations, as is allowed by 

OSHA. The second commenter (Ex. 54) 

also objected to the fact that the 

supplemental proposed rule would 

permit all settlement records to be kept 

secret and would provide no appeal 

right on the settlement. DOE disagrees 

with these commenters and does not 

intend to provide this opportunity. The 

Director is responsible for carrying out 

the intent of enabling legislation as 

delegated by the Secretary. A 

commenter (Ex. 45) requested that DOE 

define the term ‘‘settlement.’’ After 

carefully reviewing this comment, DOE 

believes the settlement process is 

adequately described in final rule 

section 851.41 and need not be 

separately defined. The final rule does 

define the outcome of a settlement (that 

is, a consent order), in section 851.3. 

Section 851.42—Preliminary Notice of 

Violation 

Section 851.42 permits the Director to 

issue a preliminary notice of violation 

(PNOV) to the contractor if the Director 

believes that a violation of this part has 

occurred. The section lists the specific 

information that must be included in 

the PNOV and in the contractor’s reply. 

The PNOV constitutes a final order with 

no right of appeal if the contractor fails 

to reply within 30 days. Once final, the 

PNOV must be posted. 

DOE received two general comments 

regarding section supplemental 

proposed section 851.402. In the first, 

three commenters (Exs. 54, 55, 60) noted 

that the supplemental proposal 

contained no requirement to post 

notifications of violation. Two of these 

commenters (Exs. 54, 55) were also 

concerned that the section provided no 

right of worker or union appeals or for 

worker or union involvement in any 

way in the process. DOE agrees that it 

is appropriate for workers or their 

representatives to play a role in the 

process and has revised the rule to 

facilitate their participation. In the final 

rule, section 851.20(b)(5) gives worker 

representatives the right to accompany 

the Director during inspections or, if a 

representative is not available, requires 

inspectors to consult employees on 

matters of health and safety. Section 

851.20(b)(6) gives workers the right to 

request and receive results of 

inspections and accident investigations. 

DOE also has included in section 

851.42(e) a requirement that PNOVs be 

posted once they are final. 

A commenter (Ex. 28) argued that a 

contractor should give greater weight to 

an OSHA decision involving an 

interpretation of an OSHA standard 

than to a DOE interpretation of the same 

standard. DOE notes that OSHA 

interpretations of OSHA standards will 

be considered valid unless directed by 

DOE General Counsel. However, DOE 

reserves the right to deviate from an 

OSHA interpretation when it applies to 

a unique operation at a DOE site. In 

such cases, DOE will issue its own 

interpretation for purposes of 

implementing the DOE worker safety 

and health program. 

Section 851.42(a) authorizes the 

Director to issue a PNOV. The PNOV 

must include specific information under 

section 851.42(b), including as the facts 

on which the alleged violation is based, 

proposed remedies and civil penalties, 

and a statement obliging the contractor 

to reply in writing within 30 days. 

Section 851.42(c) requires that the 

contractor’s reply cover the relevant 

facts, any extenuating circumstances, 

and answers to questions set forth in the 

PNOV. Under section 851.42(d), if the 

contractor fails to submit a reply and all 

supporting documents within the 

allowed time, the contractor 

relinquishes the right to appeal the 

PNOV. Section 851.42(e) requires that 

the PNOV be prominently posted in the 

area where the violation occurred until 

the violation is corrected. 

DOE did not receive comments 

related specifically to sections 851.42(a) 

through (e) during the public comment 

period. 

Section 851.43—Final Notice of 

Violation 

Section 851.43 requires the Director to 

review a contractor’s timely written 

reply to a preliminary notice of 

violation (PNOV). If the Director 

determines that a violation occurred, 

this section allows the Director to issue 

a final notice of violation that includes 

specific information listed by this 

section. Unless the contractor petitions 

the Office of Hearings and Appeals, the 

final notice constitutes a final order. 

Section 841.43(a) establishes that the 

Director will review and make a final 

determination regarding a contractor’s 

timely reply to a PNOV. If the Director 

determines that a violation has occurred 

or is continuing to occur, the Director 

may issue the contractor a final notice 

of violation as described by section 

841.43(b). Specifically, the final notice 

must state that the contractor may 

petition the Office of Hearings and 

Appeals in accordance with 10 CFR Part 

1003, subpart G. 

One commenter (Ex. 47) 

recommended that supplemental 

proposed sections 851.403 and 851.404 

be revised to provide for appeals to 

Administrative Law Judges (ALJs), 

following the PAAA process contained 

in 10 CFR 820, rather than to DOE’s 

Office of Hearings and Appeals. DOE 

has not accepted this comment, because 

initial decisions based on an evidentiary 

record are prepared by the Office of 

Price-Anderson Enforcement. Therefore, 

a trial de novo (new trial) is unnecessary 

and the Office of Hearings and Appeals 

is the appropriate forum to which 

appeals may be referred. 

Under section 841.43(c), a contractor 

relinquishes any right to appeal if the 

contractor fails to make a timely petition 

for review of a final notice of violation. 

In the absence of a petition for review 

the final notice becomes a final order. 

Section 851.44—Administrative Appeal 

Section 851.44 establishes the right of 

a contractor to petition the Office of 

Hearings and Appeals for review. 

Section 851.44(a) describes this right, 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6909 

which must be exercised within 30 

calendar days of receipt of the final 

notice of violation. Section 851.44(b) 

clarifies that in order to exhaust final 

remedies; the contractor must make 

such a petition in accordance with 

section 851.44(a). 

DOE received several general 

comments on the review process. 

Several commenters (Exs. 15, 31, 47) 

suggested that a third party reviewer 

(not DOE) should handle contractors’

petitions instead of the Office of 

Hearings and Appeals. These 

commenters recommended that 

contractors be given an opportunity to 

challenge a proposed civil penalty 

either before an ALJ or in a U.S. District 

Court, as provided for in 10 CFR 820. 

The commenters pointed out that ALJs 

routinely hear OSHA cases and have a 

greater familiarity with OSHA 

requirements and case law. One of these 

commenters (Ex. 15) went on to suggest 

that DOE establish a small independent 

review commission as a final step in the 

administrative review process, as is 

used effectively by OSHA. A related 

comment (Ex. 61) inquired whether the 

final rule would provide a mechanism 

for contesting or overturning potential 

findings that a contractor believes to be 

technically inaccurate. As discussed 

with regards to final rule section 851.43, 

the Office of Price-Anderson 

Enforcement prepares initial decisions 

based on an evidentiary record. 

Therefore, a trial de novo (new trial) is 

unnecessary and the Office of Hearings 

and Appeals is the appropriate forum to 

which appeals may be referred. 

Section 851.45—Direction to NNSA 

Contractors 

Section 851.45 establishes that for 

NNSA contractors, it is the NNSA 

Administrator, rather than the Director, 

who issues subpoenas and notices. 

Section 851.45(a) gives the NNSA 

Administrator authority to sign, issue, 

and serve subpoenas, orders, 

disclosures, preliminary notice of 

violations, and final notices. The 

Administrator must consider the 

Director’s recommendation. 

Appendix A—Worker Safety and 

Health Functional Areas 

This appendix establishes the 

mandatory requirements for 

implementing the applicable functional 

areas required by 10 CFR 851.24 of this 

part. These provisions from DOE Order 

440.1A, ‘‘Worker Protection 

Management for DOE Federal and 

Contractor Employees,’’ were derived 

through years of coordination, analysis, 

and review and comment procedures 

seeking input from top subject matter 

experts throughout the Department as 

part of the Order development process. 

As a result, at the time of publication of 

DOE Order 440.1A, these provisions 

reflected the state-of-the-art in corporate 

safety and health program requirements 

and were established with the 

concurrence of each DOE Program 

Secretarial Office. Since the order was 

published, the Department has gained 

close to a decade of experience in 

successfully implementing these 

functional area provisions on DOE 

worksites. These sections build on the 

lessons learned over these years and 

establish appropriate functional area 

enhancements as deemed necessary by 

DOE subject matter experts in 

conjunction with the respective DOE 

internal technical advisory committees. 

Several commenters (Exs. 16, 27, 28, 

42, 45) expressed concern that the 

provisions of this Appendix would 

require contractors to expend additional 

effort and resources to submit safety and 

health plans above and beyond the 

safety and health program called for 

under supplemental proposed Section 

851.100 or to perform an extensive 

review and analysis of existing 

programs to ensure compliance with the 

rule. DOE does not believe that this is 

the case. The fundamental requirements 

captured in Appendix A of the final rule 

reflect those of DOE Order 440.1A, 

which has been applicable at DOE 

worksites for many years. Consequently, 

DOE believes that contractors are 

already complying with these 

requirements and thus minimal, if any, 

additional effort will be needed. 

One commenter (Ex. 28) sought 

clarification on whether plans required 

under the functional area sections of the 

rule must be submitted for DOE 

approval. Section 851.11 of the final 

rule requires contractors to submit to a 

written worker safety and health 

program that provides the methods for 

implementing the requirements of 

Subpart C (which includes the 

functional areas) to the appropriate 

Head of DOE Field Element for 

approval. Accordingly, a description of 

how the contractor will meet the 

requirements of Appendix A of the final 

rule must be included in the worker 

safety and health program that is 

submitted for DOE approval. 

These sections also establish 

provisions for a new functional area 

within the comprehensive worker 

protection program to address biological 

safety. DOE believes this new functional 

area is warranted to address concerns 

that arose from the anthrax terrorist 

attacks of October 2001. Provisions for 

each of the functional areas are 

discussed in further detail in the 

sections that follow. 

1. Construction Safety 

Appendix A, section 1 (formerly 

supplemental notice of proposed 

rulemaking section 851.202) establishes 

requirements and responsibilities that 

apply to the construction managers and 

construction contractors for planning 

and implementing appropriate worker 

safety and health measures during 

construction activities. For the 

construction section of this rule, it was 

necessary to provide separate 

definitions in final rule section 851.3 

that are applicable to construction in 

order to circumscribe those activities to 

which the construction safety 

provisions apply and to assign 

responsibilities for these activities. The 

definition of ‘‘construction’’ was taken 

directly from OSHA’s standards, which 

in turn has taken its definition from the 

Davis-Bacon Act regulating wage rates 

for federally funded construction 

projects. 

The definition for ‘‘construction 

contractor’’ as provided in order to 

discern where in the contract hierarchy 

the responsibility for implementing the 

provisions of a construction contract 

lies. Depending on the contracting 

situation, the construction contractor 

may be the management and operating 

contractor if the work is performed 

directly by his forces or it may be a 

subcontractor to the management and 

operating contractor or a subcontractor 

to a separate construction management 

contractor. 

Similarly, the definition of 

‘‘construction manager’’ was provided 

in order to discern where in the project 

hierarchy the responsibility for primary 

oversight of the construction contractor 

lies. For the purpose of this rule, the 

construction manager could be DOE if 

the construction work is performed 

directly by the management and 

operating contractor or it may be the 

management and operating contractor if 

the construction work is performed by 

a subcontractor to the management and 

operating contractor. It could also be a 

separate firm hired by DOE or the 

management and operating contractor to 

perform construction management 

services. 

The definitions for ‘‘construction 

project’’ and ‘‘construction worksite’’

were provided in order to circumscribe 

the activities and geographic location, 

respectively, to which the construction 

safety provisions of this rule apply. 

Some commenters (Exs. 16, 27, 28, 36, 

42, 45) expressed concern that the 

provisions of this section would require 

contractors to expend additional effort 


cprice-sewell on PROD1PC66 with RULES2
6910 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

and resources to submit safety and 

health plans above and beyond the 

safety and health program called for 

under supplemental proposed section 

851.100 or to perform an extensive 

review and analysis of existing 

programs to ensure compliance with the 

rule. As stated previously, DOE does not 

believe that this is the case, because the 

requirements in Appendix A, section 1, 

of the final rule reflect those of DOE 

Order 440.1A. 

One commenter (Ex. 54) requested 

that references to OSHA’s Process Safety 

Management standards (29 CFR 

1910.119 and 1926.64) be added to the 

construction safety requirements of the 

rule. DOE notes, however, that final rule 

section 851.23 requires contractors to 

comply with all standards at 29 CFR 

1910 and 1926, so a separate reference 

is not needed in Appendix A, section 1, 

of the final rule. 

Three commenters (Exs. 16, 28, 45) 

were of the opinion that the language in 

this section of the supplemental 

proposal was subjective and more 

suitable as contract language than as 

enforceable language in a rule. DOE 

considers the ‘‘subjectivity’’ of this 

language—now captured in Appendix 

A, section 1, of the final rule—to be 

useful in allowing for a graded approach 

in the implementation of the 

construction safety requirements. A 

graded approach can also be applied to 

the development and approval of health 

and safety plans by the construction 

manager, which was an area of concern 

for other commenters (Exs. 36, 42). 

Other commenters (Exs. 20, 29, 37, 45, 

51, 54) requested clarification on the 

responsibilities of various contractors at 

a DOE construction site. Accordingly, 

DOE has introduced the terms 

‘‘construction contractor’’ and 

‘‘construction manager’’ and specified 

distinct responsibilities and 

requirements for each type of contractor, 

in addition to providing definitions for 

these two terms in section 851.3—

Definitions. 

The provisions of section 1(a)(1) of 

Appendix A focus on the requirement 

for construction contractors to prepare 

activity hazard analyses for project 

activities prior to commencement of 

work on the affected activities. One 

commenter (Ex. 40) pointed to the need 

for construction managers to provide a 

list of known worksite risks (e.g., site 

characterization data) to the 

construction contractor so that they can 

be appropriately addressed in the 

construction contractor’s activity hazard 

analysis. Section 1(a)(ii) was added to 

the final rule to address this concern. 

Another commenter (Ex. 29) 

requested clarification on whether 

activities that use standard personal 

protective equipment require a hazard 

analysis. DOE’s intent, as stated in 

Appendix A section 1(a), is to require 

activity level hazard analysis for each 

definable construction activity. The 

need for personal protective equipment 

does not dictate the need to perform a 

hazard analysis. Rather, the hazard 

analysis, through the identification of 

workplace hazards, dictates the need for 

workplace controls and protective 

equipment. 

One commenter (Ex. 48) argued that it 

is more appropriate to perform an 

ongoing hazard analysis rather than 

performing the hazard analysis before 

initiating the construction project. DOE 

agrees in part. As noted in Appendix A 

section 1(a), the hazard analysis 

required under section 1(a)(1) is 

required for ‘‘each separately definable 

construction activity (e.g., excavations, 

foundations, structural steel, roofing).’’

DOE’s intent with this provision is that 

the construction manager prepares a 

hazard analysis prior to the start of each 

discrete construction activity within the 

project. DOE acknowledges that these 

activities will likely occur at different 

stages of the overall project and that 

some contractors may find it easier to 

prepare the related analyses as the 

project progresses rather than all at one 

time. DOE believes that this decision is 

best left to the discretion of the 

construction manager provided that the 

hazard analyses meet the requirements 

of section 1(a)(1). 

Several commenters (Exs. 26, 36, 39, 

42, 45, 48, 51) noted that the wording 

of supplemental proposed section 

851.202(a)(1)(iii) implied the need for a 

professional engineer for a wide variety 

of services beyond those prescribed by 

OSHA’s construction standards, 29 CFR 

1926. DOE agrees that the language of 

the supplemental proposal could be 

misinterpreted and, as a result, this 

provision was edited in Appendix A 

section 1(a)( iii), of the final rule to 

reflect the requirement for professional 

engineering services consistent with 

OSHA’s standards. 

A number of commenters (Exs. 15, 19, 

42, 45, 48, 49, 51) took issue with the 

wording of supplemental proposed 

section 851.202(a)(1)(iv) and the need to 

provide qualifications for competent 

persons. This provision was changed in 

Appendix A section 1(a)(iv) of the final 

rule to require the identification of the 

competent person for each work 

activity, consistent with OSHA 

requirements. 

Appendix A section 1(a)(2) requires 

the construction contractor to ensure 

that workers are aware of foreseeable 

hazards and the protective measures 

described within the activity analysis. 

The provision of supplemental 

proposed section 851.202(a)(3) that 

would have made a worker’s use of 

appropriate protective measures a 

condition of employment was cited by 

four commenters (Exs. 16, 31, 36, 48) as 

reducing flexibility in labor/ 

management relations. DOE agrees with 

these concerns. Accordingly, this 

provision was revised in Appendix A 

section 1(a)(3), of the final rule to state 

that the construction contractor must 

require that workers acknowledge being 

informed of the hazards and protective 

measures associated with assigned work 

activities and to require that workers 

failing to use the required controls be 

subject to the contractor’s disciplinary 

process. One commenter (Ex. 16) argued 

that the rule should include an 

enforcement provision that does not 

hold contractors responsible for willful 

non-compliance on the part of 

employees. DOE agrees with this 

commenter and has added a provision 

in final rule section 851.20(b) to 

prohibit workers from taking actions 

inconsistent with the rule. As 

mentioned in the section-by-section 

discussion for section 851.5 of the final 

rule, DOE will develop enforcement 

guidance for the rule that will include 

provisions similar to OSHA’s 

unpreventable employee misconduct 

defense—outlined in OSHA’s Field 

Inspection Reference Manual, Chapter 

III, paragraph C.8.c(1). 

Appendix A section 1(b) requires the 

construction contractor to have a 

designated representative on the 

construction worksite during periods of 

active construction and that this 

representative is knowledgeable of 

project hazards and have the authority 

to take actions. The section further 

clarifies that the representative must 

conduct frequent and regular 

inspections of the worksite to identify 

and correct hazards. 

Several commenters (Exs. 16, 31, 36, 

42, 47, 48, 49) objected to the 

requirement for a construction 

contractor’s designated representative to 

be on the construction worksite at all 

times. These commenters also 

questioned the need for daily worksite 

inspections by the contractor’s 

designated representative and requested 

clarifications on the terms ‘‘on site at all 

times’’ and ‘‘active construction’’ (Exs. 

20, 29, 39, 47, and 48). The need for a 

contractor’s representative to be onsite 

during active construction derives from 

the Federal Acquisition Regulation 

(FAR) Parts 36.506 and 52.236–6, 

Superintendence by the Contractor, 

which state that ‘‘At all times during 

performance of this contract and until 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6911 

the work is completed and accepted, the 

Contractor shall directly superintend 

the work or assign and have on the 

worksite a competent superintendent 

who is satisfactory to the Contracting 

Officer and has authority to act for the 

Contractor.’’ The term ‘‘active 

construction’’ in section 1(b) of 

Appendix A is effectively defined by the 

addition of the parenthetical statement 

clarifying that ‘‘active construction’’

excludes periods of inactivity such as 

weekends or weather delays. With 

regard to the frequency of safety and 

health inspections, the text in section 

1(b) has been changed to replace the 

term ‘‘daily’’ with ‘‘frequent and 

regular’’ in an effort to be consistent 

with OSHA’s construction safety 

standard addressing this issue, 29 CFR 

1926.20(b)(2). 

One commenter (Ex. 49) requested 

that the term ‘‘onsite’’ in supplemental 

proposed section 851.202(a)(4) be 

replaced with ‘‘available’’ to 

accommodate for the designated 

representative’s lunch breaks. DOE 

believes that, in the absence of activity 

on the construction worksite during a 

lunch break, there is no need for the 

presence of a designated representative. 

However, if construction continues 

during the designated representative’s 

lunch break, the contractor must ensure 

that another representative is designated 

and present onsite. 

One commenter (Ex. 16) objected to a 

requirement in supplemental proposed 

section 851.202(a)(4) for specific 

training for designated representatives. 

DOE agrees with this commenter’s 

concern and has removed the provision 

from the final rule. 

Other commenters (Exs. 20 and 47) 

requested a definition for the term 

‘‘designated representative.’’ DOE notes 

that, although the rule does not provide 

such a definition, section 1(b) provides 

that the designated representative must 

be a person who is knowledgeable of the 

project’s hazards and has full authority 

to act on behalf of the construction 

contractor. 

Appendix A section 1(c) is derived 

from provisions originally included in 

supplemental proposed section 

851.202(a)(4). These provisions require 

that workers be instructed to report 

identified hazards to the contractor’s 

designated representative and that 

contractors take certain steps up to and 

including stopping work if they cannot 

immediately correct the hazards. 

Several commenters took issue with a 

variety of terms used in the original 

provision of the supplemental proposal. 

Specifically, one commenter (Ex. 27) 

objected to the use of the word 

‘‘unforeseen’’ in describing hazards that 

workers must report. Accordingly, the 

word has been deleted from the rule and 

the text clarified to refer to hazards that 

have not been previously identified or 

evaluated. Another commenter (Ex. 48) 

questioned the appropriateness of the 

term ‘‘immediate corrective action’’ on 

the grounds that it implies permanent 

correction. DOE disagrees that the term 

is inappropriate. Appendix A section 

1(c) specifically discusses the 

conditions for which interim control 

measures are appropriate (i.e., when 

immediate corrective action is not 

possible or the hazard falls outside the 

project scope). 

On the subject of workers reporting 

hazards not previously identified or 

evaluated, one commenter (Ex. 31) 

responded that, because current 

practices involve workers reporting 

safety concerns to their immediate 

supervisors, the requirement be 

reworded to include reporting of 

hazards to either the immediate 

supervisor ‘‘or’’ the designated 

representative. DOE disagrees. 

Designated representatives, as discussed 

above, are persons with the authority to 

act on behalf of the construction 

contractor and, therefore, are the 

appropriate persons to inform of the 

hazards. This does not, however, 

preclude the contractor from 

establishing internal procedures to 

require workers to report hazards to 

their immediate supervisor and the 

designated representative. 

Appendix A section 1(d) requires 

construction contractors to prepare a 

written construction project safety and 

health plan to implement the 

requirements of section 1 of the 

Appendix. The section stipulates that 

the contractor must obtain the 

construction manager’s approval of the 

plan before commencing any work 

covered by the plan. 

There were several comments (Exs. 

15, 40, 47, 48, 55) regarding the 

supplemental proposal’s requirement in 

section 851.202(b) of having the 

monetary threshold of the Davis-Bacon 

Act trigger the need for a written 

construction safety plan. The DavisBacon act was used in previous DOE 

policy, as a means for deciding which 

activities were constructions. However, 

DOE has decided, after considering the 

comments that using a law governing 

wage rates as the determining factor for 

a safety regulation is inappropriate and 

often confusing. Hence, reference to the 

Davis-Bacon Act has been deleted from 

the final rule. 

There were also numerous comments 

(Exs. 15, 16, 25, 28, 29, 36, 37, 42, 45, 

49, 51) concerning the requirement for 

DOE to review and approve 

construction contractors’ safety and 

health plans. These comments focused 

on the fact that DOE generally does not 

have the personnel resources to fulfill 

this requirement. DOE agrees with these 

comments and has changed the 

approving authority in section 1(a)(1) to 

the construction manager. 

2. Fire Protection 

Appendix A section 2 (formerly 

supplemental notice of proposed 

rulemaking section 851.203), establishes 

the basic requirements for a 

comprehensive fire protection program. 

Numerous commenters (Exs. 2, 3, 4, 5, 

8, 13, 15, 29, 31, 36, 39, 42, 47, 48, 49, 

61) objected to the approach taken in 

the supplemental proposed rule with 

regard to fire protection. Section 

851.203 of the supplemental proposal 

included specific requirements for fire 

protection and fire department 

operations. DOE agrees that a more 

pragmatic and less prescriptive 

approach to the delineation of 

requirements for fire protection and 

emergency services is appropriate. 

Consequently, the final rule has been 

revised to include the text from the fire 

protection portion of DOE Order 

440.1A, which has been in effect since 

1998. 

One commenter (Ex. 5) suggested that 

the rule prohibit the purchase or use of 

self-illuminating exit signs or other 

signs at nuclear facilities since these 

signs are a source of tritium and are 

difficult to disassociate from a nuclear 

event at a nuclear facility. DOE notes 

that the purchase or use of selfilluminating exit signs or other signs at 

nuclear facilities is not within the scope 

of the final rule. Self-illuminating exit 

signs or other signs are commercially 

available and issued under the Nuclear 

Regulatory Commission’s general 

license. 

Section 2(a) of Appendix A to the 

final rule establishes the specific 

requirements for the implementation of 

a comprehensive fire protection 

program to ensure workers a safe and 

healthful workplace. These 

requirements, along with the applicable 

NFPA standards, and DOE fire safety 

directives, technical standards and 

guidance, have historically been 

considered necessary for a 

comprehensive fire safety program. The 

section further clarifies that the program 

must include appropriate facility and 

site-wide fire protection, fire alarm 

notification and egress features, and that 

contractors must assure access to a fully 

staffed, trained, and equipped 

emergency response organization that is 

capable of responding in a timely and 

effective manner to site emergencies. 


cprice-sewell on PROD1PC66 with RULES2
6912 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

Two commenters (Exs. 31, 39) 

objected to the requirement that all 

contractors must implement a fire 

protection and response program 

(emphasis added). According to the 

commenters, other options are available, 

including reliance on another 

government agency or a public fire 

department. The requirement for a 

current Baseline Needs Assessment and 

the need for written pre-fire strategies, 

plans, and standard operating 

procedures, as would be provided by 

section 851.203(a)(7) and (a)(8) in the 

supplemental notice of proposed 

rulemaking was of concern to other 

commenters (Ex. 36, 39, 48). These 

commenters were of the view that these 

requirement should not apply to 

contractors that do not operate fire 

departments. DOE agrees with the 

commenters, and has revised the text to 

emphasize that contractors must have 

access (emphasis added) to a fully 

staffed, trained, and equipped 

emergency response organization that is 

capable of responding in a timely and 

effective manner to a spectrum of site 

emergencies. However, DOE expects 

that the decision regarding the type of 

emergency services capability that is 

credited is based, in part, on the results 

of a Baseline Needs Assessment. 

A few commenters (Exs. 31, 42, 49, 

61) requested that DOE define 

‘‘qualified fire protection engineer.’’

DOE has removed this term from the 

final rule. 

Appendix A section 2(b), requires 

inclusion of appropriate fire protection 

criteria and procedures, analyses, 

hardware and systems, apparatus and 

equipment, and personnel in the fire 

protection program to ensure that the 

objective in Appendix A section 2(a) is 

met. This includes meeting the 

applicable building code and National 

Fire Protection Association (NFPA) 

Codes and Standards or exceeding them, 

when necessary, to meet safety 

objectives, unless explicit written relief 

has been granted by DOE. 

Numerous commenters (Exs. 2, 4, 5, 8, 

16, 19, 22, 24, 31, 37, 42, 45, 49, 53, 54, 

58, 61) objected to the number of NFPA 

codes and standards proposed by DOE 

in the supplemental notice of proposed 

rulemaking, as many appeared to have 

little, or no relevance to activities at 

DOE sites. Similarly, another 

commenter (Ex. 39) asserted that some 

of the requirements in those codes and 

standards applied to the protection of 

structures and were not directly related 

to the safety and health of workers. DOE 

has decided that an exhaustive list of 

applicable NFPA standards is 

unnecessary and has not included a list 

in the final rule. With regard to the issue 

of facility-specific requirements within 

NFPA codes and standards, DOE agrees 

that any requirement that is not directly 

related to the safety and health of 

workers is not applicable in the context 

of this rule. However, these 

requirements may apply to DOE 

facilities through DOE directives, such 

as with DOE O 420.1, which are made 

applicable by contract. 

A number of commenters (Exs. 2, 4, 

22, 49, 54, 55, 61) objected to the 

inclusion of specific editions of the 

applicable NFPA standards, arguing that 

as this would result in the enforcement 

of obsolescent criteria. As discussed 

previously, DOE has decided against 

incorporating into the rule most of the 

standards included in the supplemental 

proposed rule. 

Two commenters (Exs. 7, 29) 

expressed concern that adoption of 

NFPA Standard 1710, and the 

enforcement of requirements from other 

NFPA standards that govern fire 

department operations would impose 

significant burdens (in terms of time, 

staffing, paperwork, etc.) on site 

emergency services organizations for 

which there are insufficient budgets. 

Other commenters (Exs. 5, 37, 39, 42, 

48) stated their belief that the non-fire 

department oriented requirements 

would also significantly increase costs. 

DOE agrees and has deleted the NFPA 

standards governing fire department 

operations from the final rule. 

One commenter (Ex.1) suggested that 

NFPA Standard 1600, ‘‘Disaster and 

Emergency Management and Business 

Continuity Programs’’ be included in 

the rule. DOE disagrees with this 

recommendation because this standard 

is included in other DOE directives, 

such as DOE O 420.1, which apply, 

through contracts, to DOE facilities. 

Several commenters (8, 15, 29, 31, 35, 

36, 37, 42, 46, 49) objected to the list of 

NFPA and other industry standards 

because there was no consideration for 

the fact that many DOE facilities were 

constructed years ago under the 

‘‘code(s) of record.’’ DOE agrees with the 

commenter and has revised the list of 

standards to more closely mirror the list 

of standards required under DOE O 

440.1A. It is DOE’s intent that 

contractors use DOE fire safety 

directives which establish the concept 

of compliance with a ‘‘code of record.’’

Another commenter (Ex. 49) 

questioned on how NFPA standards 

would apply in leased locations where 

the contractor has no enforcement 

authority and does not control the fire 

department manpower, training and 

equipment. DOE has deleted the NFPA 

standards from the final rule. 

One commenter (Ex. 13) suggested 

that DOE consider adding the 

Underwriters Laboratories (UL) listings 

and Factory Mutual data sheets to 

Appendix A section 2. This commenter 

did not, however, provide a rationale for 

this suggestion. Without a rationale DOE 

could make determine the need for the 

inclusion of such standards in the final 

rule, therefore, DOE has not included 

them in the final rule. 

Another commenter (Ex. 54) 

requested that references to OSHA’s 

Process Safety Management standards 

(29 CFR 1910.119 and 1926.64) be 

added to the fire safety requirements of 

the rule. DOE notes that final rule 

section 851.23 requires contractors to 

comply with all standards at 29 CFR 

1910 and 1926. Hence, a separate 

reference is not needed in Appendix A 

section 2 of the final rule. Several 

commenters (Exs. 2, 4, 16, 48, 49, 59, 

61) objected to the lack of explicit 

reference to the ‘‘equivalency’’ concept 

that has historically been used within 

the DOE fire safety community to 

rationalize alternative approaches to fire 

safety. DOE agrees in part and 

concludes that, beyond the definition of 

a formal exemption process to this rule, 

no explicit reference to ‘‘equivalencies’’

is necessary, as this concept is an 

integral part of all NFPA codes and 

standards and DOE fire safety directives. 

The recommendation made by two 

commenters (Exs. 36, 42) that the 

Authority Having Jurisdiction (AHJ) be 

responsible for approving fire safety 

code and standard equivalencies (as 

required by DOE Order 420.1A) instead 

of the DOE site manager (as would be 

required by the proposed rule) is 

acceptable to DOE. 

3. Explosives Safety 

Appendix A section 3 (formerly 

supplemental notice of proposed 

rulemaking section 851.204), of the final 

rule establishes safety provisions for 

DOE contractors performing work 

involving explosive materials. 

Appendix A section 3(a) establishes the 

primary requirement for DOE 

contractors to develop, implement, and 

maintain a comprehensive explosives 

safety program. These provisions this 

program must assure that workers, 

visitors, and members of the public are 

not exposed to significant explosives 

threats (blast overpressure, fragment, 

debris, structural collapse, heat and 

fire). 

DOE explosives handling and 

processing operations are an integral 

part of DOE weapons and weaponsrelated development, manufacturing, 

and dismantlement activities as well as 

DOE security operations. Safety in all 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6913 

operations associated with explosive 

materials is an ongoing, primary 

concern and must be given high priority 

in all program direction and 

management activities. 

DOE received a number of comments 

on the explosives safety provisions 

included in section 851.204 of the 

supplemental proposed rule. A majority 

of these commenters (Exs. 8, 15, 20, 37, 

59) stated that the rule should require 

contractors to comply with DOE Manual 

440.1–1, DOE Explosives Safety Manual. 

These commenters argued that the 

provisions in this section of the 

supplemental proposal were vague and 

were not as comprehensive and clear as 

the provisions of the DOE Explosives 

Safety Manual. The commenters noted 

specific concerns regarding reference to 

an undefined certification program to 

train persons assigned to explosives 

operations (Exs. 37, 59); the omission of 

a grandfather clause to address older 

facilities that cannot meet newer 

requirements (Ex. 59); the omission of 

criteria related to firebreaks and fire 

exits (Exs. 37, 59); and the omission of 

critical components of the lightning 

protection program (Exs. 37, 59). These 

commenters noted that the DOE 

Explosives Safety Manual was 

specifically developed to address 

explosives safety in DOE operations and 

felt that reliance on the Manual rather 

than the incomplete explosives safety 

requirements in the supplemental 

proposal would provide for more 

effective protection of the DOE work 

force. 

DOE agrees with these commenters 

and has accordingly replaced the 

technical provisions that were included 

in the supplemental proposal with the 

basic requirement in Appendix A 

section 3(b) that contractors comply 

with DOE Manual 440.1–1A, Explosives 

Safety Manual (DOE M 440.1–1A), 

Contractor Requirements Document 

(Attachment 2), January 9, 2006. As 

noted by the commenters, this Manual 

establishes safety controls and standards 

that are not addressed in other existing 

DOE or non-DOE regulations. The 

Manual closes the considerable safety 

gap created by DOE’s unique activities, 

governs the DOE explosives safety 

process, and ensures that explosives 

safety is commensurate with actual risk. 

One commenter (Ex. 39) questioned 

why the explosives safety provisions in 

the supplemental proposal specifically 

excepted the use of explosive material 

for routine construction, demolition, 

and tunnel blasting. Although, this 

specific exception has been removed 

from the text of the final rule, the 

exception, with additional clarification 

and rationale, is a part of the DOE 

Explosive Safety Manual. Specifically, 

the Manual states that if blasting 

operations are routine in the context of 

construction or tunneling blasting, then 

the more appropriate OSHA 1910 and 

1926 standards may be used. However, 

magazines must be sited according to 

the Department of Defense (DoD) 

Criteria in DoD 6055.9, DOD 

Ammunition and Explosives Safety 

Standards. Transportation of explosives 

across DOE sites must be in conformity 

with the Manual. DOE does not believe, 

however, that explosive demolition of 

facilities should be considered a routine 

use of explosives due to its unique risks. 

As a result, DOE intends that such 

operations would be governed by 

requirements in the DOE Technical 

Standard on Explosive Demolition of 

Structures. 

Several commenters (Exs. 9, 16, 22, 

59) questioned the incorporation of 

NFPA 495, Explosives Materials and 

NFPA 498, Standards for Safe Havens 

and Interchange Lots for Vehicles 

Transporting Explosives, in Subpart C of 

the supplemental proposal. These 

commenters noted that the standards are 

not applicable to the military style of 

explosives materials used in DOE and 

felt that their inclusion in the rule 

would only confuse covered contractors 

with conflicting and less rigorous safety 

policies. DOE agrees with these 

commenters and has removed the 

standards from the final rule. 

Appendix A section 3(c) of the final 

rule clarifies that contractors must 

determine the applicability of the 

explosives safety requirements to 

research and development laboratory 

type operations consistent with the DOE 

level of protection criteria established in 

the DOE Explosives Safety Manual. This 

provision was added to the final rule to 

address one commenter’s (Ex. 36) 

concern that the explosives safety 

provisions of the supplemental proposal 

did not accommodate laboratory 

activities where the forms and 

quantities of explosive materials did not 

represent a significant personnel or 

facility hazard. 

4. Pressure Safety 

Appendix A section 4 (formerly 

supplemental notice of proposed 

rulemaking section 851.205), of the final 

rule establishes pressure safety 

requirements for DOE contractors 

performing activities at covered 

workplaces. DOE received numerous 

comments regarding the corresponding 

section of the supplemental proposed 

rule expressing concern or requesting 

clarification of proposed pressure safety 

provisions. 

DOE critically evaluated each of these 

comments and considered related input 

from the Department’s Pressure Safety 

Committee in crafting the pressure 

safety section of the final rule. DOE 

notes that the DOE Pressure Safety 

Committee includes both federal and 

contractor experts from within the DOE 

complex. Based on this evaluation and 

an evaluation of comments on the 

overall supplemental proposed rule in 

general, DOE revised the pressure safety 

section of the final rule to closely follow 

the requirements of the Pressure System 

Safety section in DOE Order 440.1A. 

DOE Order 440.1A has governed 

pressure system safety within DOE for 

the last eight years and has been well 

scrutinized through an expert technical 

review processes. 

The sections that follow provide a 

detailed discussion of the provisions of 

the pressure safety section of the final 

rule as well as a summary of, and DOE 

responses to, the specific comments 

received related to these provisions. 

One commenter (Ex. 20) expressed 

concern that intensive configuration 

management would be required to 

administer the requirements of the rule 

and research would be necessary to 

establish a clearly documented baseline 

for compliance. In response to this 

concern, DOE notes since the pressure 

safety requirements in the final rule 

incorporate the existing requirements in 

DOE Order 440.1A, DOE believes that 

contractors, who are already in 

compliance with DOE Order 440.1A, 

will require minimal, if any effort to 

implement the rule requirements. 

Appendix A section 4(a) describes 

what constitute pressure systems and 

requires contractors to establish safety 

policies and procedures to ensure they 

are designed, fabricated, tested, 

inspected, maintained, repaired, and 

operated by trained and qualified 

personnel in accordance with applicable 

and sound engineering principles. 

Two commenters (Ex. 42, 49) 

requested a definition of pressure 

systems. DOE notes that the DOE 

Pressure Safety Committee has, in the 

draft Implementation Guide to DOE 

Order 440.1A, defined pressure systems 

in the following terms: ‘‘Pressure 

systems are comprised of all pressure 

vessels, and pressure sources including 

cryogenics, pneumatic, hydraulic, and 

vacuum. Vacuum systems should be 

considered pressure systems due to 

their potential for catastrophic failure 

due to backfill pressurization. 

Associated hardware (e.g. gauges, and 

regulators), fittings, piping, pumps, and 

pressure relief devices are also integral 

parts of the pressure system’’. DOE has 

included this definition in final rule 


cprice-sewell on PROD1PC66 with RULES2
6914 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

section 851.3 and in Appendix A 

section 4(a). In addition, DOE 

emphasizes that cryogenic and vacuum 

systems are included as pressure 

systems. 

Two commenters (Ex. 29, 48) 

suggested that pressure retaining vessel 

safety requirements were best imposed 

through contract provisions or through 

specifications for new components, and 

that operational safety requirements 

were already contained in the 

applicable national consensus standards 

(OSHA regulations) incorporated in the 

proposed rule. The commenters 

specifically suggested modifying the 

language in proposed section 851.205(a) 

to require contractor safety policies and 

procedures to ensure that design, 

fabrication, testing, inspection, 

maintenance and operation of pressure 

systems is performed by ‘‘qualified 

personnel in accordance with applicable 

safety or national consensus standards.’’

In response, DOE notes that the 

corresponding Appendix A section 

(4)(a) follows the requirements of the 

Pressure System Safety section in DOE 

Order 440.1A, according to which 

contractors must establish safety 

policies and procedures to ensure that 

pressure systems are designed, 

fabricated, tested, inspected, 

maintained, repaired, and operated by 

trained and qualified personnel in 

accordance with applicable and sound 

engineering principles. Further DOE 

stresses that training of personnel using, 

maintaining, repairing, or constructing 

pressure systems is paramount. The 

inspection and maintenance of the 

systems is also essential as they decay 

over time and a reasoned engineering 

approach must be used to maintain 

safety. 

Appendix A section 4(b) further 

describes the applicable national 

consensus standards including 

professional and state and local codes, 

that contractors must conform to with 

respect to pressure system safety in DOE 

covered workplaces. 

DOE received numerous comments 

(Exs. 2, 8, 16, 19, 29, 37, 45, 49) 

expressing concern over the inclusion of 

ASME codes in proposed section 

851.201(c) and suggested they be 

eliminated or modified. In response to 

these concerns, DOE has revised the 

corresponding final rule section 

Appendix A section 4(b) to eliminate 

the proposed tables and any cited 

standards that lacked relevance to the 

pressure safety requirements of the rule. 

One commenter (Ex. 16) expressed 

concern over the separation of 

requirements for compliance with 

ASME codes and ensuring pressure 

safety and suggested it gave ‘‘the 

appearance of being inappropriate or 

unsafe for components within the scope 

of the ASME code.’’ The commenter 

recommended presenting both 

requirements in a manner that clarified 

their relationship and scope. In 

response DOE notes that the 

corresponding final rule section has 

been revised to present the relevant 

codes within the pressure safety 

requirements in Appendix A section 

4(b). Additionally, DOE reiterates that 

this new section follows the 

requirements of the pressure system 

safety section in DOE Order 440.1A. 

According to Appendix A section 

4(b)(1) through (3) of the final rule, 

contractors must ensure that all pressure 

vessels, boilers, air receivers, and 

supporting piping systems conform to 

the applicable ASME Boilers and 

Pressure Vessel Safety Codes, the ANSI/ 

ASME B.31 Piping Code or the strictest 

applicable state and local codes. These 

provisions are consistent with the long 

held policy of only citing the ASME 

code on pressure vessels or the ANSI 

piping code, which are mainly 

manufacturing and fabrication codes. 

The research and development 

aspects of DOE often require that some 

pressure vessels are built to contain very 

high pressure that is above the level of 

applicability of the ASME Pressure 

Safety Code. Other times, new materials 

or shapes are required that are beyond 

the applicability of the ASME Code. In 

these cases, addressed under Appendix 

A section 4(c), rational engineering 

provisions are set to govern the vessels 

construction and use and assure 

equivalent safety. 

Appendix A section 4(c) provides 

guidelines for equivalent measures that 

contractors may implement in the event 

that national consensus standards are 

not applicable to ensure pressure system 

safety and meet the requirements of the 

final rule. 

A few commenters (Ex. 29, 42, 49) 

sought clarification of what constituted 

an ‘‘independent peer review’’ to 

determine if national consensus codes 

and standards were applicable or not. In 

response to this concern, DOE has 

revised the language of the 

corresponding final rule section to 

eliminate use of the phrase 

‘‘independent peer review.’’ One 

commenter (Ex. 49) further questioned 

what approved measures were to be 

implemented in the event consensus 

standards were not applicable. In 

response, DOE has provided greater 

clarification in final rule Appendix A 

section 4(c) of the measures that are to 

be used. The final rule Appendix A 

section 4(c) provides that when national 

consensus codes are not applicable 

(because of pressure range, vessel 

geometry, use of special materials, etc.), 

contractors must implement measures to 

provide equivalent protection and 

ensure a level of safety greater than or 

equal to the level of protection afforded 

by the ASME code. DOE notes that 

documented organizational peer review 

is acceptable for the design drawings, 

sketches, and calculations that must be 

reviewed and approved by a 

professional engineer. 

5. Firearms Safety 

Appendix A section 5 of the final rule 

(formerly supplemental notice of 

proposed rulemaking section 851.208), 

establishes firearms safety policies and 

procedures for security operations, and 

training to ensure proper accident 

prevention controls are in place. Two 

commenters (Exs. 27, 45) asserted that 

the requirements in Appendix A section 

5 of the final rule appear to be a 

summarization of existing DOE Orders 

and will likely require extensive review 

and analysis for contractors to come into 

compliance with the rule requirements. 

Since the industrial hygiene 

requirements in the final rule 

incorporate the existing requirements in 

DOE Order 440.1A, DOE believes that 

for contractors that are already in 

compliance with DOE Order 440.1A, it 

should require minimal, if any, effort to 

implement the rule requirements. 

Some commenters (Exs. 5, 36, 25, 42) 

requested clarification on whether the 

requirements of the rule apply to sites 

without armed security forces and to the 

occasional use of firearms for research 

purposes or for activities like the 

capture and study of wildlife. The 

provisions of Appendix A section 5(a) 

apply only to contractors engaged in 

DOE activities involving the use of 

firearms. The scope and nature of work 

activities involving specific types of 

hazards in this case, the use of firearms 

determines whether the requirements of 

a particular safety program apply to the 

workplace. Generally, the rule 

requirements do not apply to sites that 

do not have armed security forces. Other 

use of firearms at DOE facilities, such as 

the use of firearms for research (e.g., 

material testing) or for activities like the 

capture and study of wildlife, also could 

create conditions that warrant the 

application of Appendix A section 5(a) 

firearms safety provisions. 

Two commenters (Exs. 42, 49) were of 

the opinion that rule did not correctly 

identify the types of contractors that 

must comply with the firearms safety 

requirements. The commenters 

suggested that use of the term ‘‘a 

contractor engaged in DOE activities 

involving the use of firearms’’ would be 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6915 

more appropriate than the phrase ‘‘a 

contractor responsible for a workplace’’

which had been used in the 

supplemental notice of proposed 

rulemaking. DOE agrees with the 

commenters and the language in 

Appendix A section 5(a) had been 

revised accordingly. 

Written procedures must address 

firearms safety, engineering and 

administrative controls, as well as 

personal protective equipment 

requirements according to Appendix A 

section 5(a)(1). 

Appendix A sections 5(a)(2)(i) 

through (viii) establish requirements for 

contractors to develop specific 

procedures for various activities that 

involve the use of firearms including the 

storage, handling, cleaning, inventory, 

and maintenance of firearms, 

ammunition, pyrotechnics etc. 

Procedures must also be developed for 

the use of firing ranges by personnel 

other than DOE or DOE contractor 

protective forces personnel. As a 

minimum, procedures must be 

established for: (1) Storage, handling, 

cleaning, inventory, and maintenance of 

firearms and associated ammunition; (2) 

activities such as loading, unloading, 

and exchanging firearms. These 

procedures must address use of bullet 

containment devices and those 

techniques to be used when no bullet 

containment device is available; (3) use 

and storage of pyrotechnics, explosives, 

and/or explosive projectiles; (4) 

handling misfires, duds, and 

unauthorized discharges; (5) live fire 

training, qualification, and evaluation 

activities; (6) training and exercises 

using engagement simulation systems; 

(7) medical response at firearms training 

facilities; and (8) use of firing ranges by 

personnel other than DOE or DOE 

contractor protective forces personnel. 

In order to comply with the 

provisions of Appendix A section 5(b), 

contractors must ensure that personnel 

responsible for the direction and 

operation of the firearms safety program 

are professionally qualified and have 

sufficient time and authority to 

implement the procedures under this 

section. 

Appendix A section 5(c) requires that 

contractors must ensure that firearms 

instructors and armorers have been 

certified by the Safeguards and Security 

National Training Center to conduct the 

level of activity provided. Additionally, 

personnel must not be allowed to 

conduct activities for which they have 

not been certified. 

Appendix A section 5(d), mandates 

that contractors conduct formal 

appraisals assessing implementation of 

procedures, personnel responsibilities, 

and duty assignments to ensure overall 

policy objectives and performance 

criteria are being met by qualified 

personnel. 

According to the provisions of 

Appendix A section 5(e), contractors 

must implement procedures related to 

firearms training, live fire range safety, 

qualification, and evaluation activities, 

including procedures requiring that: (1) 

Personnel must successfully complete 

initial firearms safety training before 

being issued any firearms; (2) 

authorized armed personnel must 

demonstrate through documented 

limited scope performance tests both 

technical and practical knowledge of 

firearms handling and safety on a semiannual basis; (3) all firearms training 

lesson plans must incorporate safety for 

all aspects of firearms training task 

performance standards; (4) firearms 

safety briefings must immediately 

precede training, qualifications, and 

evaluation activities involving live fire 

and/or engagement simulation systems; 

(5) a safety analysis approved by the 

Head of DOE Field Element must be 

developed for the facilities and 

operation of each live fire range prior to 

implementation of any new training, 

qualification, or evaluation activity, and 

the results of these analyses must be 

incorporated into procedures, lesson 

plans, exercise plans, and limited scope 

performance tests; (6) firing range safety 

procedures must be conspicuously 

posted at all range facilities; and (7) live 

fire ranges, approved by the Head of 

DOE Field Element, must be properly 

sited to protect personnel on the range, 

as well as personnel and property not 

associated with the range. 

Contractors must ensure that the 

transportation, handling, placarding, 

and storage of munitions conform to the 

applicable DOE requirements to satisfy 

the requirements of Appendix A section 

5(f). 

6. Industrial Hygiene 

Appendix A section 6 of the final rule 

(formerly supplemental notice of 

proposed rulemaking section 851.209), 

provides the industrial hygiene program 

requirements. Industrial hygiene is an 

important component of a 

comprehensive worker protection 

program. The contents of this functional 

area were developed by the DOE 

Industrial Hygiene Coordinating 

Committee (IHCC) to identify those 

minimum requirements necessary to 

implement an effective industrial 

hygiene program. The minimum set of 

requirements that resulted from this 

process reflects the recommendations of 

industrial hygiene experts from across 

the DOE complex. 

Two commenters (Exs. 27, 45) 

asserted that the requirements in 

supplemental proposed section 851.209 

appeared to be a summarization of 

existing DOE Orders and would likely 

require extensive review and analysis 

for contractors to come into compliance 

with the rule requirements. Since the 

industrial hygiene requirements in the 

final rule incorporate the existing 

requirements in DOE Order 440.1A, 

DOE believes that for contractors that 

are already in compliance with DOE 

Order 440.1A, minimal, if any, effort 

will be required to implement the rule 

requirements. 

One commenter (Ex. 37) 

recommended that Appendix A section 

6 reference DOE’s Industrial Hygiene 

(IH) manual and the OSHA standards in 

lieu of the American Conference of 

Governmental Industrial Hygienists’

(ACGIH’s) threshold limit values (TLV) 

manual. DOE notes that final rule 

section 851.23 requires contractors to 

comply with the standards listed in that 

section, which include OSHA standards 

as well as the ACGIH TLVs. Further, the 

purpose of the DOE IH manual is to 

serve as a guidance tool rather than as 

regulatory text. Therefore, DOE believes 

that it is neither necessary nor 

appropriate to reference the DOE IH 

manual in Appendix A section 6, in 

place of the standards already required 

by section 851.23. 

The absence of any requirement for 

worker participation within the 

provisions of rule was an issue for two 

commenters (Exs. 54 and 55). Sections 

851.20(a) and (b) of the final rule 

requires worker participation in workrelated safety and health activities and 

evaluations. This section also requires 

worker access to various types of safety 

and health information, in addition to 

providing for other workers’ rights. 

Therefore, there is no need for worker 

participation requirements to be 

specified separately in Appendix A 

section 6. 

Appendix A section 6 in the final rule 

contains provisions for contractor 

implementation of a comprehensive and 

effective industrial hygiene program to 

reduce the risk of work-related disease 

or illness. One commenter (Ex. 16) 

considered the use of the term 

‘‘workplace’’ in the supplemental 

proposed 851.209(a) confusing, 

especially for sites where DOE utilizes 

multiple contractors. DOE agrees with 

the commenter and, accordingly, this 

term had been deleted from the text of 

Appendix A section 6. 

Appendix A section 6(a) requires 

initial or baseline surveys and periodic 

resurveys and/or exposure monitoring 

as appropriate of all work areas or 


cprice-sewell on PROD1PC66 with RULES2
6916 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

operations to identify and evaluate 

potential worker health risks. Several 

commenters (Exs. 12, 15, 16, 35, 42, and 

48) contended that conducting initial 

and baseline surveys of all work areas 

or operations can be burdensome and 

costly, especially for areas undergoing 

or intended to undergo decontamination 

and decommission. DOE disagrees with 

this contention. The requirements of 

Appendix A section 6(a) allow 

contractors the flexibility to determine 

the appropriate level of assessment 

based on the complexity of the 

operation and the presence and level of 

workplace hazards. The effort for 

assessments should be graded according 

to the level of risk each hazard poses. 

Regarding the question of 

‘‘grandfathering’’ existing assessments, 

if a baseline assessment has already 

been accomplished, as would be the 

case for contractors already in 

compliance with the provisions of DOE 

O 440.1, and the workplace hazards and 

activities have not changed, then a new 

baseline assessment of risks is not 

required. However, DOE agrees with the 

commenters that areas or operations 

undergoing decontamination and 

decommission could change on a daily 

basis. As a result, more frequent 

assessments are needed to ensure that 

all hazards are identified and 

controlled. 

Appendix A section 6(b), requires 

coordination with planning and design 

personnel to anticipate and control 

facility and operations related health 

hazards as one of the elements of the 

industrial hygiene program that 

contractors must implement. 

Coordination with cognizant 

occupational medical, environmental, 

health physics, and work planning 

professionals is another element of the 

industrial hygiene program that is 

required by Appendix A section 6(c). 

According to Appendix A section 

6(d), the contractor’s industrial hygiene 

program must include policies and 

procedures to control risks from 

identified and potential occupational 

carcinogens. Two commenters (Exs. 16, 

48) asserted that the rule fails to specify 

or define the identified or potential 

carcinogens. DOE notes that section 

851.23 of the final rule mandates 

compliance with several safety and 

health standards, including OSHA 

standards and the ACGIH TLVs, that 

address occupational carcinogens. 

These standards identify occupational 

carcinogens and provide additional 

information in the areas of exposure 

levels, hazard control, and worker 

protection for different carcinogens. 

Consequently, Appendix A section 6(d) 

does not provide a separate 

identification or definition for 

carcinogens. 

Appendix A section 6(e) of the final 

rule requires that the contractors’

industrial hygiene program be managed 

and implemented by professionally and 

technically qualified industrial 

hygienists. 

7. Biological Safety 

Appendix A section 7 of the final rule 

(formerly supplemental notice of 

proposed rulemaking section 851.207), 

provides the biological safety program 

requirements. In February 2001, the 

DOE Office of Inspector General (DOE–

IG) issued a report entitled ‘‘Inspection 

of Department of Energy Activities 

Involving Biological Select Agents’’

(DOE/IG–0492). In this report the DOE–

IG made 7 recommendations regarding 

the handling and use of biological 

agents within the Department. In 

response to this report the department 

developed, through its directives 

system, DOE Notice 450.7 ‘‘The Safe 

Handling, Transfer, and Receipt of 

Biological Etiologic Agents at 

Department of Energy Facilities’’. 

Proposed 10 CFR 851.207 reflected the 

requirements contained in DOE Notice 

450.7. 

In November 2001, the Deputy 

Secretary of Energy indicated in a memo 

that the Department must be a 

responsible steward of biological 

etiologic agents and directed 

Departmental elements to have DOE 

Notice 450.7, The Safe Handling, 

Transfer, and Receipt of Biological 

Etiologic Agents at the Department of 

Energy Facilities, incorporated into 

applicable contracts. DOE Notice 450.7 

lays out the Department’s expectations 

for BioSafety at the DOE facilities. 

The Department of Health and Human 

Services (DHHS) and the Department of 

Agriculture issued new regulations 

covering the possession, use, and 

transfer of select agents and toxins as 

interim final rules (42 CFR Part 73, 7 

CFR Part 331, and 9 CFR Part 121) in 

December 2003. The rules were issued 

in response to the Public Health 

Security and Bioterrorism Preparedness 

and Response Act of 2002 and provide 

updated requirements to those found in 

DOE Notice 450.7. The updated 

requirements are included in this rule to 

cover DOE contractors. 

Appendix A section 7(a) (proposed as 

851.207(a)) requires the establishment of 

an institutional biological safety 

committee (IBC) to review work with 

biological agents to ensure their 

compliance with appropriate federal 

and state guidelines for this type of 

activity. 

Several commenters (Exs. 27, 28, 36, 

42, 48) expressed concern that the 

requirements in supplemental proposed 

section 851.207 would expose 

contractors to dual regulation because 

they would be subject to Part 851, based 

on DOE directive and to DHHS and 

Agriculture rules. These concerns are 

unfounded. When 10 CFR 851 is made 

effective, including the Biological Safety 

requirements of Appendix A section 7, 

DOE N 450.7 will expire and will not be 

renewed. As stated above, today’s final 

rule incorporates the updated 

requirements in the DHHS and 

Department of Agriculture rules. 

One commenter (Ex. 28) sought 

clarification on whether supplemental 

proposed section 851.207 would be part 

of the worker health and safety plan that 

must be submitted for DOE approval. 

Section 851.11 of the final rule requires 

contractors to submit to a written 

worker safety and health program that 

provides the methods for implementing 

the requirements of Subpart C (which 

includes the functional areas, such as 

biological safety) to the appropriate 

Head of DOE Field Element for 

approval. A description of how the 

contractor will meet the requirements of 

Appendix A section 7 of the final rule 

must be included in the worker safety 

and health program that is submitted for 

DOE approval. 

One commenter (Ex. 15) requested a 

definition for the term ‘‘biological 

etiological agents’’ which was included 

in supplemental proposed section 

851.207 and is used throughout 

Appendix A section 7 of the final rule. 

DOE interprets the term ‘‘biological 

etiological agent’’ to mean any agent 

capable of causing disease in humans, 

plants or animals. Other commenters 

(Exs. 6, 15) noted that the term 

‘‘biological etiological agents’’ includes 

many agents that are of little importance 

to workplace safety or do not pose a 

security risk and therefore, 

recommended that this term be replaced 

by either ‘‘Select Agents’’ as defined by 

42 CFR 73, or ‘‘Risk Group 3 and 4 

agents.’’ DOE believes that the 

requirements in Appendix A section 

7(a)(1) are meant to apply to not only 

select agents but to any agent that may 

cause disease. In order to comply with 

this intent of the rule, the site 

institutional biological safety committee 

(IBC) should review all work with 

biological agents and determine if 

appropriate controls are being put into 

place, although a graded approach 

should be used for the reviews to reflect 

the severity of the hazard. 

Appendix A section 7(a)(1) requires 

the establishment of an IBC to review 

work with biological agents to ensure 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6917 

compliance with appropriate federal 

and state guidelines for this type of 

activity. Several commenters (Ex. 25, 37, 

45, and 51) expressed concern that this 

provision could be interpreted to apply 

to contractors that do not possess or use 

biological etiological agents in the 

workplace. DOE intends that contractors 

must implement the provisions of 

Appendix A section 7(a)(1) wherever 

they are applicable. A contractor that 

does not perform work involving 

exposure to biological agents is not 

required to implement any provisions of 

Appendix A section 7. Another 

commenter (Ex. 15) argued that the 

requirements in Appendix A section 

7(a)(1) would result in additional costs 

and increased workload for the IBC. 

DOE considers it good practice to 

review any work undertaken with 

biological agents. Although the IBC is 

required to review all work with 

biological agents to determine if 

appropriate controls are in place, DOE 

believes that the extent and rigor of the 

review will depend upon the risk and 

hazard associated with the agent being 

used. Application of this graded 

approach should limit any increases in 

the workload and associated costs. 

Another commenter (Ex. 29) 

recommended that the word 

‘‘appropriate’’ in supplemental 

proposed section 851.207(a)(1) be 

changed to ‘‘applicable.’’ DOE agrees, 

and has revised the text in Appendix A, 

section 7(a)(1)(i) of the final rule 

accordingly. Appendix A section 

7(a)(1)(ii) of the final rule instructs 

contractors to confirm the presence of 

site security, safeguards, and emergency 

management plans and procedures, 

when performing work with biological 

etiologic agents. Two commenters (Ex. 

15 and 42) found a lack of clarity in the 

provisions of supplemental proposed 

section 851.207(a)(2) and the 

requirement for IBC review of security 

plans and procedures; in their view, 

security matters are typically not 

considered to be an area of IBC 

expertise. DOE disagrees, believing the 

provisions in Appendix A section 

7(a)(1)(ii) of the final rule appropriately 

reflect the importance of maintaining 

security measures with respect to 

bioagents. The DHHS and Department of 

Agricultures rules (42 CFR 73.11 and 

73.12), establish requirements for 

Security and Emergency Response plans 

to be developed and implemented for 

select agents. DOE believes there must 

be a determination of how much review 

and oversight is needed for all types of 

biological etiological agents and that the 

IBC can provide the sites security 

organization with the expertise to 

address these issues. The IBC should 

note in its review of proposals if 

security has been properly addressed. 

However, the policy for security at a 

DOE facility should be addressed by the 

security department. 

Appendix A section 7(a)(2) requires 

maintenance of an inventory and status 

of biological etiologic agents. This 

information must be submitted to the 

DOE field and area office as part of an 

annual report describing the status and 

inventory of biological etiologic agents 

and the program. One commenter (Ex. 

42) requested definition of the terms 

‘‘status’’ and ‘‘readily retrievable 

inventory’’ and sought clarification on 

what DOE expectations were for the 

contents of the annual status report. 

DOE agrees that the term ‘‘readily 

retrievable’’ was unclear and has 

removed the term from the text of 

Appendix A section 7(a)(2) in the final 

rule. DOE interprets ‘‘status’’ as 

including information that will 

determine whether the biological 

etiologic agents are on site, dead or live, 

frozen or in active storage as well as 

information on the person(s) 

responsible. This information is 

necessary to keep DOE informed on the 

biological etiologic agent activities being 

undertaken on the Departments sites. 

Appendix A section 7(a)(3) requires 

the submission of each Laboratory 

Registration/Select Agent Program 

registration application package to the 

head of the appropriate DOE field 

element. One commenter (Ex. 15) was 

concerned that this provision may affect 

every revision to the registration, 

including those involving staff transfers 

of materials. DOE’s intent is for the 

provision to apply to the initial 

registration submittal because this will 

allow DOE to become aware of all 

bioagent activity. However, staff 

transfers of materials need not be 

reported to DOE as long as the 

Department of Health and Human 

Services and the Department of 

Agriculture rules and requirements are 

met. Other commenters (Exs. 15, 42) 

asked for the withdrawal of 

supplemental proposed section 

851.207(c). DOE disagrees with this 

request. As reported by DOE–IG (DOE/ 

IG–0492), DOE may not have knowledge 

of the presence of biological agents on 

a site. Appendix A section 7(a)(4) was 

included to ensure that DOE is aware of 

all biological agent activity occurring at 

DOE sites, as well as any information 

submitted to the Center for Disease 

Control and Prevention (CDC) regarding 

how and where biological agents will be 

used. 

Appendix A section 7(a)(4) of the 

final rule contains provisions for 

submission to the appropriate Head of 

DOE Field Element a copy of each CDC 

Form EA–101, Transfer of Select Agents, 

upon initial submission of the Form 

EA–101 to a vendor or other supplier 

requesting or ordering a biological select 

agent for transfer, receipt, and handling 

in the registered facility. The completed 

copy of the Form EA–101, documenting 

final disposition and/or destruction of 

the select agent must also be submitted 

to the appropriate Head of DOE Field 

Element within 10 days of completion 

of the Form EA–101. 

Appendix A section 7(a)(5) of the 

final rule requires the IBC to confirm 

that the site safeguards and security 

plans and emergency management 

programs address biological etiologic 

agents, especially biological select 

agents. One commenter asserted that the 

implementation of requirements in 

supplemental proposed section 

851.207(e) would result in high costs to 

the contractors. As stated above, DHHS 

and the Department of Agriculture have 

established requirements for Security 

and Emergency Response plans through 

42 CFR Part 73.11 and 73.12. These 

rules are enforced by DHHS and the 

Department of Agriculture, not DOE. 

Therefore, Appendix A section 7(a)(5) is 

included to require the contractor to 

confirm that all site safeguards and 

security plans and emergency 

management programs that address 

biological etiologic agents are in place. 

According to the requirements in 

Appendix A section 7(a)(6), the IBC 

must establish an immunization policy 

for personnel working with biological 

etiologic agents based on the evaluation 

of risk and benefit of immunization. The 

CDC has established guidelines for 

immunizations and these guidelines 

should be consulted in the 

establishment of an immunization 

policy. 

8. Occupational Medicine 

Appendix A section 8 of the final rule 

(formerly supplemental notice of 

proposed rulemaking section 851.210), 

establishes the requirements for 

occupational medicine services. 

Appendix A section 8(a) requires 

contractors to provide comprehensive 

occupational medicine services to 

workers employed at a covered work 

place. One commenter (Ex. 33) 

expressed concern that supplemental 

proposed section 210 included many 

additional requirements for the 

preparation and implementation of 

occupational medical programs beyond 

those in the initial proposed rule. The 

commenter also believed that 

supplemental proposed section 851.210 

expanded requirements for site 


cprice-sewell on PROD1PC66 with RULES2
6918 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

occupational medical directors (SOMD) 

in other areas of occupational medicine 

regardless of the nature or size of DOE 

activities. DOE has considered the 

comment but believes that the additions 

are necessary. The practice of 

occupational medicine is constantly 

evolving and medical advances which 

must be incorporated into site 

occupational medicine services to 

ensure the health of workers in 

maintained and/or improved, and that 

DOE maintains its medical programs 

consistent with occupational medicine 

practice standards and guidelines. 

Another commenter (Ex. 48) asserted 

that the occupational medical services 

specified in supplemental proposed 

section 851.210 would result in 

substantial cost for non-management 

and operating contractors. DOE does not 

agree with the commenter’s assertion a 

requirement that all levels of contractors 

provide comprehensive occupational 

medicine services will create a negative 

health and safety situation for DOE, 

including opening DOE up to increased 

medical liability. In DOE’s experience, 

small contractors and subcontractors are 

capable of providing more that a 

minimal OSHA-level required 

protection and health care. Therefore, 

the final rule retains the occupational 

medicine service provisions. 

Two commenters (Exs. 16, 28) 

believed that program-type documents 

to supplement the worker safety and 

health program were not necessary. The 

commenters recommended that this 

requirement be deleted, or integrated 

with the overall worker safety and 

health program. DOE does not agree 

with the commenter and believes that 

the documents should be a part of the 

overall worker safety and health 

program. 

Another commenter (Ex. 48) 

questioned if a contractor operating a 

limited occupational medicine program, 

such as a first aid station appropriate for 

construction, is required to adopt all of 

the elements in supplemental proposed 

section 851.210, assuming that the 

contractor desires to continue providing 

these services after the effective date of 

the rule. DOE contends that operating a 

first aid station is but one element of a 

comprehensive occupational medicine 

program (OMP). DOE intends for this 

rule to apply to all covered contractors, 

including construction contractors. 

One commenter (Ex. 16) felt that the 

use of the term ‘‘workplace’’ in 

supplemental proposed section 

851.210(a) could easily result in 

unintended confusion and extensive 

debate for sites where DOE utilizes 

multiple contractors. DOE agrees with 

the commenter and has modified the 

provision in Appendix A section 8(a) of 

the final rule. 

One commenter (Ex. 42) believed that 

supplemental proposed rule section 

851.210(a) was unclear in what was 

considered to be a ‘‘comprehensive’’

occupational medical program or 

services, and requested that DOE 

provide elements of the OMP in the 

rule. DOE does not agree with the 

commenter and notes that the rules’

implementation guide is the appropriate 

place to provide elements of the 

occupational medicine program. 

Three commenters (Exs. 28, 45, 51) 

recommended removing: ‘‘At sites with 

operations performed by more than one 

contractor, several contractors may 

agree to use services provided under a 

single contractor’s OMP,’’ from 

supplemental proposed section 

851.210(a) because they felt that this 

language was specific to multi-employer 

DOE sites and need not be included in 

the rule. DOE agrees, and has deleted 

this sentence from the final rule. 

However, contractors at multi-employer 

sites may choose to follow this approach 

to comply with the medical services 

requirement. 

Appendix A section 8(a)(1) of the 

final rule establishes that the 

occupational medicine services must 

provide services for workers who work 

on a DOE site for more than 30 days in 

a 12-month period and for workers who 

are enrolled for any length of time in a 

medical or exposure monitoring 

program required by this rule and/or 

any other applicable Federal, State or 

local regulation, or other obligation as 

specified in Appendix A section 8(a)(2) 

of the final rule. 

Appendix A section 8(b) of the final 

rule establishes that occupational 

medicine services must be under the 

direction of a graduate of a school of 

medicine or osteopathy who is licensed 

for the practice of medicine in the state 

in which the site is located. 

Appendix A section 8(c) of the final 

rule requires that occupational medicine 

physicians, occupational health nurses, 

physician’s assistants, nurse 

practitioners, psychologists, employee 

assistance counselors, and other 

occupational health personnel 

providing occupational medicine 

services must be licensed, registered, or 

certified as required by Federal or State 

law where employed. 

Appendix A section 8(d) of the final 

rule states that contractors must provide 

the occupational medicine providers 

with access to hazard information by 

promoting its communication, 

coordination, and sharing among 

operating and environment, safety, and 

health protection organizations. One 

commenter (Ex. 54) recommended 

adding workers and their 

representatives to supplemental 

proposed section 851.210(d) which 

requires contractors to promote 

communication and coordination 

between all environmental, safety, and 

health groups. DOE agrees that worker 

participation is a critical component of 

a successful safety and health program. 

This section imposes requirements only 

on contractors to provide necessary 

information to occupational medicine 

providers 

Appendix A section 8(d)(1) of the 

final rule requires contractors to provide 

occupational medicine providers with 

access to information about site and 

employee hazards and exposures and 

any changes in them. Specifically, 

Appendix A section 8(d)(1)(i) of the 

final rule requires current information 

about actual or potential work-related 

site hazards (chemical, radiological, 

physical, biological, or ergonomic); 

section 8(d)(1)(ii) requires employee jobtask and hazard analysis information, 

including essential job functions; 

section 8(d)(1)(iii) requires actual or 

potential work-site exposures of each 

employee; and section 8(d)(1)(iv) 

specifies information on personnel 

actions resulting in a change of job 

functions, hazards or exposures to be 

provided to the occupational medicine 

providers. 

One commenter (Ex. 48) expressed 

concern about supplemental proposed 

section 851.210(d)(3) because it would 

require the SOMD to be engaged in 

determining the need for surveillance in 

each individual’s case. The commenter 

stated that in some cases, such as union 

construction work, the collective 

bargaining agreement may not permit 

medical screening of workers for fitness. 

DOE understands the commenter’s 

concern and has omitted the language, 

‘‘prior to medical placement or 

surveillance evaluations’’ from final rule 

Appendix A section 8(d)(1)(iii). 

One commenter (Ex. 48) expressed 

concern that supplemental proposed 

section 851.210(d)(i) included 

ergonomic assessments. The commenter 

asked what would such a requirement 

involve (i.e., what guidelines and 

applicable standards would be used; 

what constitutes an adequate ergonomic 

evaluation; what are the required 

credentials for an evaluator; and what 

constitutes a violation). DOE notes that 

a detailed explanation of ergonomics 

and the information requested by the 

comment is not appropriate for a rule, 

but will be discussed in the 

implementation guide to the rule. 

One commenter (Ex. 49) 

recommended that DOE change 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6919 

supplemental proposed section 

851.210(d)(1) to read: ‘‘Current available 

information about actual or potential 

work-related site hazards (chemical, 

physical, biological, or ergonomic);’’

supplemental proposed section 

851.210(d)(2) to read: ‘‘Employee jobtask and hazard analysis information, 

including essential job functions, as 

requested by the SOMD;’’ and 

supplemental proposed section 

851.210(d)(3) to read: ‘‘Actual or 

potential work-site exposures of each 

employee prior to medical placement or 

surveillance evaluations, as requested 

by the SOMD.’’ DOE elected not to add 

the suggested qualifiers. Limiting the 

requirement only to ‘‘available’’

information or only that information 

‘‘requested by the site occupational 

medicine provider’’ would significantly 

constrain the collection and 

dissemination of critical data. 

Several commenters (Exs. 16, 36, 42, 

49) believed that supplemental 

proposed section 851.210(d)(4) which 

would require the SOMD to be notified 

of employee job transfers should only be 

required if the transferred employee 

would be exposed to new or different 

hazards. DOE believes that the 

occupational medicine provider should 

know where to locate the employee for 

health related follow-ups, and how to 

contact an employee in the case of an 

emergency. 

Appendix A section 8(d)(2) of the 

final rule requires contractors to notify 

the occupational medicine providers 

when an employee has been absent 

because of an injury or illness for more 

than 5 consecutive workdays (or an 

equivalent time period for those 

individuals on an alternative work 

schedule). One commenter (Ex. 48) 

stated that the proposed rule section 

851.210(d)(5) would place a significant 

burden on the SOMD in cases of off-thejob illness, and did not specify if the 

injury or illness must be work-related or 

not. 

Appendix A section 8(d)(3) requires 

contractors must provide the 

occupational medicine provider 

information on, and the opportunity to 

participate in, worker safety and health 

team meetings and committees. One 

commenter (Ex. 25) expressed concern 

that the proposed rule section 

851.210(d)(6) required SOMDs to be 

offered the opportunity to participate in 

worker safety and health team meetings 

and committees, yet worker safety and 

health teams or committees were not 

mentioned anywhere else in the 

supplemental proposed rule. 

Appendix A section 8(d)(4) requires 

that contractors provide occupational 

medicine providers with access to the 

workplace for evaluation of job 

conditions and issues relating to 

workers’ health. 

Appendix A section 8(e) stipulates 

that a designated occupational medicine 

provider must: (1) Plan and implement 

the occupation medicine services; and 

(2) Participate in worker protection 

teams to build and maintain necessary 

partnerships among workers, their 

representatives, managers, and safety 

and health protection specialists in 

establishing and maintaining a safe and 

healthful workplace. 

One commenter (Ex. 16) 

recommended that DOE delete the 

proposed rule section 851.210(e)(2) that 

required a formal written plan detailing 

methods and procedures implementing 

the OMP on the basis that such a 

requirement would place an 

unnecessary burden on the SOMD since 

many contractor OMPs currently require 

a series of medical program procedures, 

rather than a higher level program 

document. The commenter further 

stated that Subpart B already required 

an overall written worker safety and 

health program that must provide for 

effective implementation of the worker 

safety and health requirements of 

Subpart C. DOE notes the commenters 

concerns and has revised the rule 

accordingly. 

Appendix A section 8(f) requires that 

a record, containing any medical, health 

history, exposure history, and 

demographic data collected for the 

occupational medicine purposes, must 

be developed and maintained for each 

employee for whom medical services 

are provided. Furthermore, the rule 

stipulates that all occupational medical 

records must be maintained in 

accordance with Executive Order 13335, 

Incentives for the Use of Health 

Information Technology. Several 

commenters (Exs. 5, 15, 25, 29, 39, 42, 

48) expressed concern over the 

proposed rule provision 851.210(f) that 

required all records containing any 

medical, clinical, health history, 

exposure history, and demographic data 

collected under OMP be kept in 

electronic format, beginning January 

2007. Most of these commenters cited 

significant costs as the basis for their 

concern. Another commenter (Ex. 49) 

believed that the proposed rule 

provision required all medical records 

collected under OMP be kept in 

electronic format, beginning January 

2007, should be clarified to apply only 

for medical records generated on or after 

January 1, 2007. DOE has modified the 

final rule to be consistent with 

Executive Order 13335 which requires 

that medical records be available 

electronically by 2015. 

Appendix A section 8(f)(1) requires 

that employee medical, psychological, 

and employee assistance program (EAP) 

records must be kept confidential, 

protected from unauthorized access, and 

stored under conditions that ensure 

their long-term preservation. 

Furthermore, the rule specifies that 

psychological records must be 

maintained separately from medical 

records and in the custody the 

designated psychologist. This provision 

is consistent with 10 CFR 712.38(b)(2) 

which applies to the DOE Human 

Reliability Program. Appendix A section 

8(f)(2) establishes that access to these 

records must be provided in accordance 

with DOE regulations implementing the 

Privacy Act and the Energy Employees 

Occupational Illness Compensation 

Program Act. 

One commenter (Ex. 62) requested 

that the proposed rule provision 

851.210(f)(1) prohibits the SOMD and 

their staff from providing employers or 

their lawyers with personal medical 

information without the employee’s 

consent. DOE notes that all medical 

information is subject to the Privacy Act 

of 1974 and the Health Insurance 

Portability and Accountability Act and 

is not released without signed consent 

of the affected worker or other legal 

authorization. 

Appendix A section 8(g) specifies that 

the occupational medicine services 

provider must determine the content of 

the worker health evaluations. These 

evaluations must be conducted under 

the direction of a licensed physician, in 

accordance with current sound and 

acceptable medical practices, and in 

accordance with all pertinent statutory 

and regulatory requirements, such as the 

Americans with Disabilities Act. One 

commenter (Ex. 48) suggested that DOE 

eliminate supplemental proposed rule 

section 851.210(f)(2) because the rule 

extended the occupational medical 

program into the domain of disability 

evaluations under the Americans with 

Disabilities Act (ADA). DOE disagrees 

and has retained the provision in the 

final rule since occupational medicine 

service providers are required to 

conduct post offer/pre-placement 

physical and mental examinations in 

accordance with the ADA. 

Several commenters (Exs. 16, 25, 47, 

49) took exception to the requirement in 

proposed rule section 851.210(f)(3) for 

the SOMD to maintain an up-to-date list 

of all medical evaluations and tests that 

are offered and to submit this list 

annually through the Cognizant Field 

Element to the Office of Environment, 

Safety and Health. These commenters 

suggested eliminating this requirement. 

One commenter (Ex. 16) suggested the 


cprice-sewell on PROD1PC66 with RULES2
6920 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

process would be more efficient if the 

list of medical evaluations was included 

in the information in the overall Worker 

Safety and Health Program. DOE agrees 

with the commenters and has 

eliminated the requirement from the 

final rule. 

Appendix A section 8(g)(1) requires 

that workers must be informed of the 

purpose and nature of the medical 

evaluations and tests offered by the 

occupational medicine provider. 

Specifically, Appendix A section 

8(g)(1)(i) requires that the purpose, 

nature and results of evaluations and 

tests must be clearly communicated 

verbally and in writing to each worker 

that is being provided with testing and 

that the communication must be 

documented in the worker’s medical 

record as specified in Appendix A 

section 8(g)(1)(ii). 

Two commenters (Exs. 15, 47) 

proposed elimination of the provision in 

proposed rule section 851.210(f)(5) that 

required medical test and result related 

communication be documented in the 

medical chart with signatures of both 

the occupational health examiner and 

worker. These commenters pointed out 

that supplemental proposed rule section 

851.210(f)(4) required communication of 

the purpose and nature of the tests and 

suggested this, along with inclusion of 

language such as ‘‘and individual 

results discussed with the employee,’’

could be sufficient to meet the 

requirement of proposed rule section 

851.210(f)(5). One of the commenters 

(Ex. 15) asserted that the requirement 

was ‘‘far in excess of the community 

standard for the practice of medicine for 

routine medical tests.’’

Conversely, in order to further 

strengthen the requirement in proposed 

rule section 851.210(f)(5) and prevent 

post-examination changes to employee 

medical records without the employee’s 

consent, one commenter (Ex. 62) 

favored adding the language, 

‘‘modifications to an employee’s 

medical chart cannot be made without 

the concurrence and signature of the 

employee.’’ DOE believes that the site 

occupational medicine records are 

created and maintained, updated, and 

reviewed in accordance with accepted 

medical practice. DOE regulations and 

medical professionals have explicit 

guidelines on how to modify records so 

that changes are tracked. Additionally, 

DOE notes that employees may officially 

request a copy of their record. After 

reviewing the record, if the employee 

wishes to provide a dated, signed, 

written statement about an element 

within the record, they may do so. The 

attachment from the employee will 

remain with the record in accordance 

with DOE records management 

regulations. 

Appendix A section 8(g)(2) requires 

certain health evaluations to be 

conducted when deemed necessary by 

the occupational medicine provider for 

the purpose of providing initial and 

continuing assessment of an employee’s 

fitness for duty. One commenter (Ex. 62) 

believed that the rule should explicitly 

bar the SOMD from ‘‘prescribing tests, 

including behavioral science exams, for 

purposes of carrying out retaliation 

against employees who were engaged in 

protected activities, such as reporting 

waste, fraud, abuse or unlawful or 

unsafe activities, unless the un-coerced 

consent of the employee was secured in 

writing.’’ DOE believes that 

occupational medicine providers are 

very sensitive to informed consent 

which causes them to explain and ask 

workers to sign consent for evaluations 

and examinations. DOE further notes 

that workers have the right and option 

to decline any portion of an 

examination, or all medical evaluations 

or examinations. However, refusing 

mandatory examinations may result in 

difficulties placing the worker 

appropriately in a job. 

Appendix A section 8(g)(2)(i) requires 

that at the time of employment entrance 

or transfer to a job with new functions 

and hazards, a medical placement 

evaluation of the individual’s general 

health and physical and psychological 

capacity to perform work be conducted 

to establish a baseline record of physical 

condition and assure fitness for duty. 

One commenter (Ex. 54) sought 

clarification of the criteria for 

‘‘emotional capacity’’ as referred to in 

supplemental proposed rule section 

851.210(f). The commenter expressed 

concern that this requirement would be 

interpreted to mean that the 

determination of emotional capacity 

was left entirely to the SOMD with no 

apparent limitations or requirements. In 

response to this concern, DOE has 

replaced the term ‘‘emotional capacity’’

with ‘‘psychological capacity’’ in the 

final rule. DOE further notes that the 

final rule makes allowance for the 

involvement of licensed, registered or 

certified psychologists in the 

occupational medicine service process. 

Thus DOE believes that such 

professionals have the requisite training 

and knowledge to apply clinically 

established criteria in the determination 

of an individual’s psychological 

capacity. 

One commenter (Ex. 47) suggested the 

term ‘‘medical placement examination’’

in supplemental proposed rule section 

851.210(f)(6)(i) be replaced with the 

term ‘‘medical placement evaluation.’’

DOE has modified the language in final 

rule Appendix A section 8(g)(2)(i) to 

include the term ‘‘evaluation’’ in place 

of ‘‘examination.’’

Two commenters (Exs. 39, 49) sought 

clarification of the term ‘‘job transfer.’’

One commenter (Ex. 49) suggested 

defining the term as ‘‘involving new or 

different hazards,’’ while the other 

commenter (Ex. 39) inquired whether 

both new and existing employee 

movement between jobs was covered 

under the provision. DOE notes that 

final rule Appendix A section 8(g)(2)(i) 

clarifies ‘‘job transfers’’ as transfers to 

jobs with new functions and hazards. 

Additionally, DOE notes that job 

transfers for the purposes of reporting to 

the site occupational medicine 

department, remains the same 

regardless of whether the employee is 

new or existing and means any change 

in job tasks, titles, exposures, and/or job 

description. 

Appendix A section 8(g)(2)(ii) 

specifies that periodic, hazard-based 

medical monitoring or qualificationbased fitness for duty evaluations as 

required by regulations and standards, 

or as recommended by the occupational 

medicine services provider, will be 

provided at the required frequency. DOE 

did not receive comments on this 

proposed provision during the public 

comment period. 

Appendix A section 8(g)(2)(iii) 

specifies use of diagnostic examinations 

to evaluate employee’s injuries and 

illnesses in order to determine workrelatedness, the applicability of medical 

restrictions, and referral for definitive 

care, as appropriate. One commenter 

(Ex. 47) favored either eliminating the 

phrase ‘‘degree of disability’’ or 

substituting the phrase with ‘‘apply 

medical restrictions as appropriate.’’

DOE has eliminated the phrase ‘‘degree 

of disability’’ in the corresponding final 

rule Appendix A section 8(g)(iii). 

Additionally DOE notes that the 

medical restriction provision has been 

greatly modified in the final rule section 

Appendix A section 8(h). 

Another commenter (Ex. 25) 

expressed concern that supplemental 

proposed rule section 851.210(f)(6)(iii), 

would pose a challenge for the SOMD 

to win the trust of workers in the 

determination of the work-relatedness of 

disease and degree of disability, given 

that the occupational medicine 

physician worked for the contractor (or 

multiple contractors). Additionally the 

commenter expressed the opinion that 

determination of work-relatedness 

would increase the potential for worker 

compensation claims and associated 

liability, which ‘‘contractors would 

rather avoid regardless of the merits of 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6921 

the claim.’’ DOE believes that a basic 

tenet of occupational medicine is to 

assist workers and management in the 

determination of the work-relatedness of 

illness and injury. Hence trained and 

certified occupational health providers 

are expected to retain professional 

impartiality and decide claims on the 

basis of their merits. Furthermore to 

minimize the potential for any 

subjectivity in medical determinations, 

DOE has eliminated use of the phrase 

‘‘degree of disability’’ in the final rule 

Appendix A section 8(g)(iii). 

Appendix A section 8(g)(2)(iv) 

specifies that after a work-related injury 

or illness or an absence due to any 

injury or illness lasting 5 or more 

consecutive workdays (or an equivalent 

time period for those individuals on an 

alternative work schedule), a return to 

work evaluation will determine the 

individual’s physical and psychological 

capacity to perform work and return to 

duty. One commenter (Ex. 54) suggested 

that supplemental proposed rule section 

851.210(f)(6)(iv) clarify that contract 

language took precedence over SOMD 

determinations. The commenter 

proposed including a requirement for a 

third party medical review (at the 

expense of the contractor) in the event 

of a disagreement between the SOMD 

and a worker’s own physician. DOE 

believes that the occupational medicine 

provider’s recommendation does not 

supplant contractual requirements 

regarding return to work (RTW). The 

occupational service provider is 

responsible for advising management on 

the medically appropriate reinstatement 

of a worker following an injury or 

illness based on input from the worker’s 

personal physician and other sources. 

One commenter (Ex. 15) expressed 

concern that the requirement for return 

to work evaluations infringed individual 

privacy rights with respect to vacation 

absence and would result in additional 

costs to the contractor. The commenter 

proposed that for non-work related 

illness (such as surgery), it was more 

appropriate and cost effective to have 

the worker’s personal surgeon make the 

determination regarding fitness for 

return to duty. Another commenter (Ex. 

48) favored elimination of return to 

work evaluations after absences due to 

illnesses or injury for 5 or more days. 

DOE notes that the occupational 

medical providers use the written 

recommendations regarding restrictions 

that are provided by private physicians. 

However, occupational medicine 

providers must conduct return-to-work 

fitness-for-duty evaluations and make 

determinations about whether the 

employee can safely return to their 

assigned job tasks in the interest of 

protecting the worker, co-workers, and 

the company. 

Many commenters (Exs. 16, 25, 36, 

42) sought additional clarification on 

whether return to work health 

evaluations were merely for absences 

due to injuries or illnesses, or some 

other unique situation (e.g., return from 

active military duty) that were deemed 

appropriate by the SOMD, and not for 

return to work from vacations or other 

non-medically related absences. DOE 

believes that the corresponding final 

rule Appendix A section 8(g)(2)(iv) 

adequately clarifies that return to work 

evaluations are necessary only when an 

employee has been absent for illness or 

injury for 5 or more days. 

Appendix A section 8(g)(2)(v) 

provides that at the time of separation 

from employment, individuals shall be 

offered a general health evaluation to 

establish a record of physical condition. 

DOE received many comments with 

respect to the need for termination 

exams. One commenter (Ex. 49) 

suggested that termination exams under 

supplemental proposed rule section 

851.210(f)(6)(v) only be required for 

‘‘employees enrolled in HAZWOPER or 

laser surveillance programs at the time 

of separation.’’ DOE disagrees and 

believes it is imperative that termination 

exams and evaluations be conducted on 

all workers in order to minimize the 

liability impact of work-related injury 

and illness claims. Another commenter 

(Ex. 25) sought clarification of why a 

termination exam was required. DOE 

notes that termination examinations are 

not fitness-for-duty; rather they are 

examinations to document the health 

status and known exposures of the 

employees when they leave 

employment at DOE. 

Several commenters (Ex. 16, 36, 42) 

noted that contractors did not have the 

ability to require a terminating 

individual to participate in the 

evaluations required by supplemental 

proposed rule section 851.210(f)(6)(v), 

which specifies that a health evaluation 

is required for individuals at the time of 

separation from employment. These 

commenters suggested that the rule be 

modified to require contractors to only 

offer a medical evaluation at 

termination. DOE agrees with the 

commenters suggestion and has 

modified the language in final rule 

Appendix A section 8(g)(2)(v) to only 

require contractors to offer individuals, 

at the time of separation from 

employment, a general health 

evaluation to establish a record of 

physical condition. 

Appendix A section 8(h) requires the 

occupational medicine provider to 

monitor ill and injured workers to 

facilitate their rehabilitation and safe 

return to work and to minimize lost 

time and its associated costs. Two 

commenters (Exs. 30, 62) expressed 

concern that the requirement in 

supplemental proposed rule section 

851.210(g)(2), for the occupational 

medicine program to ‘‘monitor ill and 

injured workers to facilitate their 

rehabilitation and safe return to work 

and to minimize lost time and its 

associated costs,’’ encourages the SOMD 

to return workers to the job before they 

are well. The commenters asserted that 

this placed the SOMD in the posture of 

serving two masters: the patient’s health 

and well being, and the economic 

interests of the contractor. As previously 

discussed in this section, occupational 

medicine providers are bound by 

medical and legal obligations to put the 

patient’s interest first and make 

recommendations to the contractor 

about fitness-for-duty and/or return-towork status without breaching 

confidence of a non-occupational 

diagnosis or condition without the 

patient’s permission. For example, the 

occupational medicine provider can 

state that the worker has a condition for 

which restrictions are recommended, 

and state specifically what those 

restrictions are. Restrictions are based 

on the best interest of the physical and 

mental health and well-being of the 

patient/worker and on the safety and 

well-being of co-workers. When a 

contractor has no work for which that 

individual is qualified at that time, then 

the patient/worker must abide by the 

contractor’s employment policies and 

benefits that are available. 

Appendix A section 8(h)(1) the 

occupational medicine provider to place 

an individual under medical restrictions 

when health evaluations indicate the 

worker should not perform certain job 

tasks. Furthermore, the occupational 

medicine provider must notify the 

worker and contractor management 

when employee work restrictions are 

imposed or removed. 

Two commenters (Exs. 30, 54) noted 

that supplemental proposed rule section 

851.210(g) requires the SOMD to place 

an individual under medical restrictions 

when health evaluations indicate that 

the worker should not perform certain 

job tasks. However, the commenters 

pointed out that the proposed rule has 

no requirement for medical removal 

protection (i.e., no loss of pay if 

transferred to a job which pays less or 

inability to work due to a work related 

problem as is the case with OSHA’s 

Lead standard). The commenters 

suggested that such a provision for 

medical removal protection should be 

included in the rule, whether required 


cprice-sewell on PROD1PC66 with RULES2
6922 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

by an OSHA regulation or not. DOE 

believes that medical removal 

protection is an inappropriate remedy in 

this instance. The primary purpose of 

medical removal protection is to reduce 

or eliminate the potential for exposure 

to toxic materials in workers who 

display evidence of overexposure to that 

material. Workers under medical 

restriction may be protected by the 

Americans with Disability Act, Workers’

Compensation Programs, or other 

means. 

Appendix A section 8(i) stipulates 

that occupational medicine provider’s 

physicians and medical staff must, on a 

timely basis, communicate results of 

health evaluations to management and 

to safety and health protection 

specialists in order to facilitate the 

mitigation of worksite hazards. Three 

commenters (Exs. 47, 54, 55) sought 

clarification of the requirement in 

proposed rule section 851.210(g)(3) for 

the ‘‘communication of results of health 

trend evaluations to management and 

site worker health protection 

professionals.’’ One of the commenters 

(Ex. 47) suggested that only ‘‘identified’’

health trends should be included under 

this provision, while other commenters 

(Exs. 54, 55) suggested the inclusion of 

worker health and safety committees 

and worker representatives as recipients 

for the health evaluation trend data. 

DOE has eliminated the term ‘‘trend’’

and only requires ‘‘communication of 

results of health evaluations to 

management and health protection 

specialists’’ in the corresponding final 

rule Appendix A section 8(i). DOE 

further notes that worker safety and 

health committees and worker 

representatives can obtain trend data on 

illness and injury and trend data on 

safety from the Office of Environment, 

Safety and Health’s offices of 

Epidemiology and Health Surveillance, 

Performance and Assessment, 

respectively. 

Appendix A section 8(j) specifies that 

the occupational medicine provider 

must include measures to identify and 

manage the principal preventable causes 

of premature morbidity and mortality 

affecting worker health and 

productivity. In particular, Appendix A 

section 8(j)(1) requires the occupational 

medicine provider to include programs 

to prevent and manage these causes of 

morbidity when evaluations 

demonstrate their cost effectiveness. 

Additionally, Appendix A section 8(j)(2) 

requires contractors to make available to 

the occupational medicine provider 

appropriate access to information from 

health, disability, and other insurance 

plans (de-identified as necessary) in 

order to facilitate this process. 

Appendix A section 8(k) establishes 

that the occupational medicine services 

provider must review and approve the 

medical and behavioral aspects of 

employee counseling and health 

promotional programs. One commenter 

(Ex. 48) favored eliminating the 

requirement in proposed rule section 

851.210(h) and replacing it with the 

language, ‘‘Occupational medical 

services and medical surveillance must 

be provided to employees as required by 

applicable OSHA regulations.’’ DOE 

believes that limiting the services to 

only what is required by OSHA 

regulations places undue constraints on 

the occupation medicine program. The 

services listed constitute many of the 

elements of a comprehensive 

occupation medicine program. 

Appendix A section 8(k)(1) specifies 

that contractor-sponsored or contractorsupported EAPs must be reviewed and 

approved by the occupational medicine 

services provider. One commenter (Ex. 

5) suggested that DOE should offer 

alternatives for the SOMD review, such 

as review by the medical director of the 

EAP programs, because many 

companies use corporate sponsored 

programs that are not reviewed by the 

SOMD. DOE believes that the 

occupational medicine provider must 

review and approve all services offered 

to employees because the occupational 

medicine provider has overall 

responsibility for ensuring that 

employees are offered appropriate and 

comprehensive services. 

Appendix A section 8(k)(2) specifies 

that contractor-sponsored or contractorsupported alcohol and other substance 

abuse rehabilitation programs must be 

reviewed and approved by the 

occupational medicine services 

provider. 

Appendix A section 8(k)(3) specifies 

that contractor-sponsored or contractorsupported wellness programs must be 

reviewed and approved by the 

occupational medicine services 

provider. DOE did not receive 

comments on this proposed provision 

during the public comment period. 

Additionally, Appendix A section 

8(k)(4) of the final rule specifies that the 

occupational medicine services provider 

must review the medical aspects of 

immunization programs, blood-borne 

pathogens programs, and bio-hazardous 

waste programs to evaluate their 

conformance to applicable guidelines. 

One commenter (Ex. 16) recommended 

that proposed rule section 851.210(h)(4) 

be modified to include the language, 

‘‘The SOMD must review the medical 

aspects of * * * programs to evaluate 

their conformance to applicable 

guidelines, as determined appropriate 

by the SOMD.’’ DOE believes that such 

guidelines put forth by OSHA and CDC 

qualify as common industry knowledge 

and that qualified (licensed/registered/ 

certified) occupational medicine 

providers as required in Appendix A 

section(c) are aware of such guidelines. 

Appendix A section 8(k)(5) requires 

that the occupational medicine services 

provider must develop and periodically 

review medical emergency response 

procedures included in site emergency 

and disaster preparedness plans. This 

provision further stipulates that medical 

emergency responses must be integrated 

with nearby community emergency and 

disaster plans. 

Two commenters (Exs. 5, 16) 

expressed concerns with respect to 

emergency and disaster preparedness 

plans and how they integrate within the 

occupational medicine requirements 

under proposed rule section 

851.210(i)(1). One commenter (Ex. 16) 

suggested the language be modified to 

require ‘‘the SOMD to review and 

approve the medical portion of the site 

emergency and disaster preparedness 

plans and procedures.’’ Another 

commenter (Ex. 5) suggested that 

contrary to the requirements of 

proposed rule sections 851.210(i)(1) and 

(2), in small communities, the SOMD 

may review the site emergency and 

disaster preparedness plans, but the 

development, and integration of such 

plans with community plans is done by 

the management and operating 

emergency management or occupational 

health staff, not by the local physician. 

With reference to supplemental 

proposed sections 851.210(i)(1) and (2), 

one commenter (Ex. 5) raised the issue 

that previous DOE guidance on 

community plan integration specifically 

referenced mass casualties. However as 

written, the proposed rule did not 

include any requirement for mass 

casualty planning. DOE notes that the 

DOE order on emergency preparedness 

addresses mass casualties. Additionally 

occupational medicine programs are 

required to be integrated into the 

Emergency Plans at sites. 

9. Motor Vehicle Safety 

Appendix A section 9 of the final rule 

(formerly supplemental notice of 

proposed rulemaking section 851.206), 

provides the motor vehicle safety 

program requirements. This section 

adopts the motor vehicle safety 

provisions in DOE Order 440.1A. These 

provisions allow continued contractor 

flexibility in determining the most 

efficient methods for achieving 

compliance and targeting local accident 

and injury trends based on local driving 

and operating conditions. The motor 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6923 

vehicle safety requirements of this 

section apply to operation of industrial 

equipment powered by an electric motor 

or an internal combustion engine, 

including, fork trucks, tractors, and 

platform lift trucks and similar 

equipment. Appendix A section 9(a) of 

the final rule requires contractors to 

implement a motor vehicle safety 

program to protect the safety and health 

of all drivers and passengers in 

Government-owned or -leased motor 

vehicles and powered industrial 

equipment (i.e., fork trucks, tractors, 

platform lift trucks, and other similar 

specialized equipment powered by an 

electric motor or an internal combustion 

engine). 

Two commenters (Exs. 27, 45) 

asserted that the proposed requirements 

which are in Appendix A section 9 of 

the final rule, appear to be a 

summarization of existing DOE Orders 

and would likely require extensive 

review and analysis for contractors to 

come into compliance with the rule 

requirements. Since motor vehicle 

requirements in the final rule are the 

same as the requirements in DOE Order 

440.1A, DOE believes that contractors 

are already in compliance with DOE 

Order 440.1A should require minimal, if 

any effort to implement the rule 

requirements. 

Another commenter (Ex. 48) argued 

that the requirements in Appendix A 

section 9 should be deleted because 

motor vehicle safety is adequately 

covered by OSHA regulation and state 

laws, including the requirements for 

training and qualification of powered 

industrial trucks. DOE disagrees with 

the commenter and has retained the 

provisions for motor vehicle safety. 

Another commenter (Ex. 40) 

contended that the requirement that 

each contractor implement a motor 

vehicle safety program would be 

problematic in cases where many 

contractors share the same space and 

traffic patterns. DOE notes, each 

contractor should coordinate with the 

other contractors to ensure that there are 

clear roles, responsibilities and 

procedures that will ensure the safety 

and health of workers at multicontractor workplaces. 

Appendix A section 9(b) mandates 

that the contractor must tailor the motor 

vehicle safety program to the individual 

DOE site or facility, based on an 

analysis of the needs of that particular 

site or facility. Appendix A sections 

9(c)(1) through (8), specify the different 

elements that must be addressed by the 

contractor’s motor vehicle safety 

program. Specifically, these elements 

include: (1) Vehicle licensing; (2) use of 

seat belts and other safety devices; (3) 

training for vehicle operators; (4) 

vehicle maintenance and inspection; (5) 

traffic control and signage; (6) speed 

limits and other traffic rules; (7) public 

awareness programs to promote safe 

driving; (8) and enforcement provisions. 

Two commenters (Ex. 39, 40) 

criticized the corresponding provisions 

of the supplemental proposed rule, 

specifically sections 851.206(c)(1) 

through (3) on the ground that they 

duplicate the training, testing and 

licensing requirements of local and state 

government agencies that regulate motor 

vehicles. DOE disagrees with the 

commenters and has retained the 

requirements in the final rule. 

Several commenters (Exs. 16, 29, 36, 

48) objected to the use of the word 

‘‘incentive’’ in supplemental proposed 

rule section 851.206(c)(7), which stated 

that awareness campaigns and incentive 

programs to encourage safe driving must 

be part of the motor vehicle safety 

program. Their rationale was that the 

word incentive implies monetary 

reward, and it would be inappropriate 

to include this type of requirement in a 

regulation that subjects contractors to 

civil penalty for violations. DOE 

disagrees and notes that contractors 

have been subject to the enforcement 

(through contract mechanisms) of this 

exact requirement through the 

provisions of DOE Order 440.1A for 

close to ten years. DOE is unaware of 

any difficulties associated with either 

compliance with or enforcement of this 

provision. DOE’s intent with the use of 

the term ‘‘incentives programs’’ as 

clarified in Appendix A section 9(c)(7) 

of the final rule is to refer to any 

program developed by the contractor to 

encourage safe driving among its 

workforce. This provision provides 

contractors the latitude to determine the 

types of incentives programs they feel 

are appropriate and effective. The 

provision does not limit the contractor 

to or restrict them from the use of 

monetary incentives. 

Another set of commenters (Exs. 20, 

36, 39) expressed several concerns about 

the supplemental proposal, included in 

section 851.206(c)(8) to require 

enforcement provisions to the motor 

vehicle safety program. The 

applicability of the enforcement 

provisions to DOE sites with multiple 

on-site entities was of concern to one 

commenter (Ex. 39). A second 

commenter (Ex. 20) questioned how the 

enforcement provisions would be 

implemented (i.e., whether the DOE 

police, a Federal magistrate, or the 

contractor’s staff would be authorized to 

enforce the program provisions). A third 

commenter (Ex. 36) contended that the 

enforcement provisions in the proposed 

section would infringe on the employeeemployer relationship and go beyond 

commercial and regulatory practice. 

Again, DOE notes that the motor vehicle 

provisions of this final rule are taken 

directly from DOE Order 440.1A and 

have been applicable to contractor 

operations for almost ten years. DOE 

expects that contractors will use their 

existing motor vehicle safety 

enforcement provisions developed in 

response to DOE Order 440.1A to 

comply with the enforcement provisions 

required under Appendix A section 

9(c)(8) of the final rule. 

10. Electrical Safety 

Three commenters (Ex. 17, 18, 53) 

recommended that DOE add a new rule 

section related to electrical safety and 

worker protection from electrical 

hazards. One of these commenters (Ex. 

53) recommended that the proposed 

Electrical Safety section include NFPA 

70E (Standard for Electrical Safety in 

the Workplace). Another (Ex. 29) 

questioned if DOE plans to publish an 

electrical safety implementation guide. 

The commenter believed that this would 

be helpful for understanding what DOE 

considers an ‘‘acceptable approach’’ for 

‘‘development of an integrated set of 

hazard controls.’’ In response to these 

comments, DOE added Appendix A 

section 10 to the final rule, which 

requires contractors to implement a 

comprehensive electrical safety program 

that is appropriate for the activities at 

their site. This program must meet the 

applicable electrical safety codes and 

standards referenced in section 851.23 

of the rule. As requested, the section 

851.23 includes NFPA 70 and 70E 

among the mandatory electrical safety 

codes and standards. DOE notes its 

intent to publish appropriate guidance 

documents to assist contractors in their 

compliance efforts. 

11. Nanotechnology Safety—Reserved 

The Department has chosen to reserve 

this section since policy and procedures 

for nanotechnology safety are currently 

being developed. Once these policies 

and procedures have been approved, the 

rule will be amended to include them 

through a rulemaking consistent with 

the Administrative Procedure Act. 

12. Workplace Violence Prevention—

Reserved 

The Department has chosen to reserve 

this section since the policy and 

procedures for workplace violence 

prevention are currently being 

developed. Once these policies and 

procedures have been approved, the 

rule will be amended to include them 


cprice-sewell on PROD1PC66 with RULES2
6924 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

through a rulemaking consistent with 

the Administrative Procedures Act. 

Appendix B—General Statement of 

Enforcement Policy 

As a guidance document for enforcing 

this rule, the Department has issued a 

general statement of enforcement policy 

as Appendix B. The policy sets forth the 

general framework which DOE will 

follow to ensure compliance with the 

regulations and to issue enforcement 

actions and exercise civil penalty 

authority. The policy is not binding and 

does not create any legally enforceable 

requirements pursuant to this part. It 

only provides guidance as to how DOE 

generally expects to seek compliance 

with the proposed regulations and to 

deal with any violations of the proposed 

regulations. One commenter (Ex. 47) 

pointed out that the supplemental 

proposal made references to reasonable 

quality assurance measures and also 

suggested that contractor activities 

before the effective date of the rule 

should not be enforceable. DOE notes 

that the statute does not allow a 

contactor to be penalized under both 

sections (234A and 234C) of the law for 

the same violation. Also, the statute 

does not provide for grandfathering 

activities of the contractor before the 

effective date of the rule. Therefore, 

contractors must be in compliance on 

the effective date of the rule. 

Several commenters (Exs. 13, 29, 43, 

58) suggested that terms and definitions 

be expanded or clarified in this section 

of the final rule. DOE feels that most of 

these terms are commonly understood 

and need not be defined in the rule. The 

rule incorporates commonly used and 

understood terms from both the nuclear 

safety enforcement program and worker 

safety and health programs in both DOE 

and the private sector. DOE clarifies in 

final rule section 851.3(b) that terms 

undefined in this part that are defined 

in the Atomic Energy Act of 1954 must 

have the same meaning as under that 

Act. DOE agrees that all of the different 

terms used to refer to violations and 

noncompliances in the supplemental 

proposal should be deleted. 

Three commenters (Exs. 28, 45, 51) 

supported the position that Appendix B 

should be deleted from the rule and 

issued as separate guidance. DOE 

disagrees. The rule establishes the 

worker safety and health requirements 

for contractors. If contractors fully 

comply with requirements of this rule, 

then there will be no enforcement 

actions taken against contractors. If, 

however, a contractor does not comply, 

it is necessary to delineate enforcement 

policies, as is done in Appendix B, so 

that contractors can understand the 

enforcement process. Appendix B 

establishes that necessary framework for 

the worker safety and health 

enforcement program. 

The policy is intended to achieve the 

dual purposes of promoting proactive 

behavior on the part of DOE contractors 

to improve worker safety and health 

performance and deterring contractors 

from violating the proposed regulations. 

The policy will encourage DOE 

contractors to self-identify, report and 

correct worker safety and health 

noncompliances and will provide 

adjustment factors to escalate or 

mitigate civil penalties on the basis of 

the nature of the violation and the 

behavior of the contractor. Several 

commenters (Exs. 5, 11, 16, 28, 29, 31, 

35, 36, 37, 43, 45, 47, 49, 51) took issue 

with the treatment of DOE Voluntary 

Protection Program (DOE VPP) sites in 

that special provisions were not made 

for their exemplary worker safety and 

health programs, such as exemption 

from programmed inspections and 

special mitigating factors during 

enforcement. DOE disagrees and 

believes that the performance of DOE 

VPP sites under this rule will validate 

the strength of their programs and that 

they will stand out as examples of 

excellent worker safety and health 

programs within DOE. DOE VPP sites 

will be subject to all of the provisions 

of this rule. In fact, DOE VPP sites 

should have the best worker safety and 

health programs and be in compliance 

with the worker safety and health 

requirements of this rule. DOE would 

not expect that these sites would need 

to report many Noncompliance Tracking 

System (NTS)-reportable violations. The 

Office of Price-Anderson Enforcement, 

however, will respond as necessary to 

significant violations if and when they 

do occur and develop appropriate 

programmed inspection strategies. 

One commenter (Ex. 39) took 

exception with the statement that 

contractors will almost always discover 

noncompliances before DOE. The 

commenter noted that DOE 

representatives are often co-located 

onsite with contractors and could 

identify violations before the contractor. 

DOE disagrees and maintains that 

contractors are in the best position to 

identify noncompliances. Since 

contractors are required to identify and 

evaluate hazards in the workplace, and 

have managers, supervisors and 

employees operating in the workplace 

on a routine basis, they should be the 

first to identify noncompliances. 

Contractors should not rely on DOE to 

identify noncompliances. If DOE finds 

noncompliances rather than the 

contractor, then this may indicate a 

weakness in the contractor’s worker 

safety and health program. One 

commenter (Ex. 29) was concerned 

since DOE facility representatives are 

integrated into site operations and 

participate in collaborative assessments. 

This commenter argued that, as a result, 

DOE may learn of violations at the same 

time or before the contractor. The 

commenter felt that DOE discovery in 

such cases should not be held against 

the contractor when determining 

mitigation. As noted in the final rule, 

Appendix B section IX(b)(9)(a)(1) refers 

to violations identified by a DOE 

independent assessment or other formal 

program efforts. 

Another commenter (Ex. 21) 

questioned use of the term awareness in 

Appendix B section IX(2)(f), and argued 

that awareness would be difficult to 

prove on a large worksite, with multiple 

contractors and informal resolution of 

noncompliances on the spot, without 

documentation. Generally, contractors 

should be aware of the hazards in their 

covered workplace. Only in rare cases, 

would DOE accept that the contractor 

was unaware of hazards. DOE will 

consider the contactor’s self-assessment 

program and the extent of management 

involvement in making such 

determinations. 

Several commenters (Exs. 15, 29, 31) 

took exception to applying enforcement 

provisions of the rule to subcontractors 

and suppliers, citing privity of contract, 

additional management burden, 

financial implications, and other 

disincentives for working with DOE. 

Contract privity is not an issue because 

DOE, through the Atomic Energy Act, 

has statutory authority to regulate health 

and safety matters of workers on the 

DOE sites covered under this rule. In 

fact, since DOE indemnifies 

subcontractors and suppliers against a 

nuclear incident under the statute, it 

does not receive further privity in any 

event. DOE will exercise this authority 

through this final rule and need not 

have a direct contractual relationship 

with subcontractors. This will not 

alleviate contractors of their 

responsibility to flow contractual 

requirements down to their 

subcontractors. The statute mandates 

indemnification and the statutory 

requirements apply without respect to 

any particular contract. Contractors 

remain contractually responsible for the 

activities of their subcontractors. DOE 

also plans to issue an enforcement 

guidance supplement (EGS) similar to 

the Occupational Safety and Health 

Administration (OSHA)’s multiemployer worksite policy, which 

explains how enforcement will be 

viewed with respect to multiple 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6925 

contractors at a particular covered 

workplace. 

Appendix B incorporates the basic 

outlines of DOE’s well-established 

nuclear safety enforcement program in 

10 CFR Part 820. One commenter (Ex. 

37) is concerned that DOE will not 

consider effective OSHA enforcement 

policies and procedures, such as their 

letters of interpretation, rulings of law, 

approach to multi-employer sites and 

the General Duty Clause. The Office of 

Price-Anderson Enforcement has 

maintained copies of all enforcement 

letters, enforcement actions, program 

review reports and other data related to 

nuclear safety enforcement on its web 

site, which is available to participants in 

the Price-Anderson Amendments Act 

(PAAA) program. Over the past 10 years 

the program has been administered as 

required by the Price-Anderson 

Amendments Act. Legal precedents 

contained therein will be relevant. In a 

similar manner, on the effective date of 

this rule, DOE will begin to post all 

relevant enforcement letters, 

enforcement actions, program review 

reports, and other data related to worker 

safety and health. Interpretations to the 

OSHA standards issued by OSHA will 

be considered valid unless directed 

otherwise by DOE General Counsel. In 

addition to relying on DOE’s proven 

nuclear safety enforcement principles 

and operating procedures, the Office of 

Price-Anderson Enforcement will 

incorporate relevant OSHA enforcement 

procedures into an Office of PriceAnderson Enforcement Worker Safety 

and Health Enforcement Manual. 

Another commenter (Ex. 59) proposed 

that a DOE-approved worker safety and 

health program constitute an accepted 

interpretation of the rule. DOE holds 

that it does not represent an 

interpretation of the rule. As established 

in the final rule, a binding interpretive 

ruling can only be issued through the 

formal process outlined in section 

851.7. In addition, an approved program 

demonstrates an acceptable approach 

toward implementing the requirements 

of the rule. 

The policy provides guidance on how 

enforcement conferences will be 

conducted, how enforcement actions 

will be conducted and when 

enforcement letters will be issued. One 

commenter (Ex. 31) suggested that 

specific criteria be established for 

issuing or not issuing enforcement 

letters and that enforcement letters 

should not be issued when a contractor 

has taken appropriate abatement action. 

DOE believes that such detailed criteria 

would unduly restrict the flexibility 

needed in the enforcement program. 

With respect to the Director’s exercising 

discretion when a contractor self-reports 

a violation, another commenter (Ex. 47) 

recommended changing ‘‘may’’ to 

‘‘shall.’’ DOE disagrees in that by 

definition, discretion cannot be 

exercised without restraint by DOE if 

DOE is constrained to act in only one 

way. 

The enforcement policy uses several 

enforcement terms and includes 

mitigation factors similar to those in 10 

CFR part 820. The severity levels and 

adjustment factors in the policy 

incorporate concepts OSHA uses in its 

enforcement program including whether 

a violation is serious, other-thanserious, willful, repeat, or de minimis. 

Specifically, the policy as clarified in 

Appendix B section VI of the final rule 

provides guidance on the treatment of 

violations based on severity levels. 

Section VI(b)(1) establishes that a 

severity level I violation is a serious 

violation, which would involve the 

potential that death or serious physical 

harm could result from a condition in a 

workplace, or from one or more 

practices, means, methods, operations, 

or processes used in connection with a 

workplace. A severity level I violation is 

subject to a base civil penalty of up to 

100% of the maximum base civil 

penalty or $70,000. 

Section VI(b)(2) establishes that a 

severity level II violation is an otherthan-serious violation, which would 

involve a potential that the most serious 

injury or illness that might result from 

a hazardous condition cannot 

reasonably be predicted to cause death 

or serious physical harm to exposed 

employees, but does have a direct 

relationship to their safety and health. A 

severity level II violation is subject to a 

base civil penalty up to 50% of the 

maximum base civil penalty or $35,000. 

Under section VI(b)(3) a de minimis 

violation is defined as a violation that 

has no direct or immediate relationship 

to safety or health and thus, will not be 

the subject of formal enforcement action 

through the issuance of a Notice of 

Violation. 

Several commenters took issue with 

DOE’s description of violation severity 

in the corresponding sections of the 

supplemental proposed rule. For 

instance, four commenters (Exs. 15, 29, 

38, 57) favored using OSHA’s definition 

for severity level I since probability in 

this rule was not precisely defined. DOE 

disagrees. The probability language in 

the definition of severity level II (i.e., ‘‘a 

hazardous condition that cannot 

reasonably be predicted to cause death 

or serious physical harm’’) clearly 

encompasses hazards that present only 

a remote possibility of death or serious 

physical harm, thus, such hazards 

would be considered severity level II. 

As a result, the supplemental proposal 

language is retained in the final rule. 

One commenter (Ex. 15) insisted that 

DOE apply the maximum civil penalty 

only to cases of willfulness, death, 

serious injury, patterns of systemic 

violations, flagrant violations or 

repeated poor performance and apply 

the OSHA penalty structure to 

violations classified as serious, otherthan-serious, and de minimis. DOE 

disagrees, the penalty structure was 

established by Public Law. The Director 

may use discretion to reach final 

penalty amounts. Appendix B section 

IX(b)(3) addresses the adjustment factors 

that the Director will consider when 

arriving at a penalty amount. 

Two commenters (Exs. 45, 51) also 

suggested adding definitions to 

supplemental proposed section 851.3 

for ‘‘severity levels I and II.’’ DOE 

disagrees, however, since the terms are 

adequately defined in this appendix. 

Two other commenters (Exs. 38, 57) 

requested that DOE more clearly 

delineate between severity level II and 

de minimis violations in the rule 

arguing that under the severity 

classifications in the supplemental 

proposed rule, a single improperly 

placed ladder could be consider a 

severity level II hazard subject to a 

$35,000 penalty. DOE disagrees that a 

change is needed. The commenters are 

correct that an improperly positioned 

ladder could be considered a severity 

level II hazard if the condition had a 

direct relationship to employee safety 

and health but could not reasonably be 

predicted to cause death or serious 

physical harm. If, on the other hand, the 

specific condition had no direct or 

immediate relationship to safety or 

health, the hazard would be considered 

de minimis. DOE also points out here 

that, under certain circumstances, an 

improperly positioned or secured ladder 

could easily present a significant fall 

hazard which could be considered a 

severity level I hazard. Since the 

probability that an injury or illness will 

occur has a bearing on the proposed 

penalty, the definitions of severity level 

I, II, or de minimis violations take 

likelihood or probability into account. 

In determining the severity level of a 

violation, the Office of Price-Anderson 

Enforcement will consider the 

circumstances affecting each 

condition—employee exposure, 

frequency of exposure, proximity to the 

hazard, level of worker experience, etc. 

With respect to fire protection, one 

commenter (Ex. 61) stated that due to 

legacy issues there will be numerous de 

minimis violations of National Fire 

Protection Association (NFPA) 


cprice-sewell on PROD1PC66 with RULES2
6926 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

standards. The commenters questioned 

whether DOE intends for contractors to 

document and correct these de minimis 

violations and also stated that most of 

the code deviations would address 

property protection rather than worker 

protection. In response, DOE notes that 

the list of NFPA standards in the final 

rule corresponds to those already listed 

in DOE Order 440.1A and are 

significantly reduced from that included 

in the supplemental proposal. Since 

these NFPA standards have been in 

place for many years under the DOE 

Order, DOE does not expect that there 

will be numerous violations. In 

addition, DOE believes that deviations 

from the NFPA standards that would 

qualify as de minimis violations would 

likely be addressed through the 

equivalency process built into the NFPA 

standards. 

In addition to the clear definitions for 

severity levels I and II and de minimis 

violations described in Appendix B 

section VI of the final rule, the 

supplemental proposed rule Appendix 

A sections VI(d) through (g) described 

certain other factors that would be taken 

into account in determining the severity 

of a violation. Several commenters took 

issue with the consideration of these 

other factors arguing that the factors had 

no relationship to the actual severity of 

the hazard. For instance, two 

commenters (Exs. 29, 36) suggested that 

severity levels be defined based on the 

extent of potential harm that could 

result from the violation (as discussed 

in supplemental proposed Appendix A 

sections VI(b) and (c)), not on the 

culpability of the contractor (as 

discussed in supplemental proposed 

Appendix A sections VI(d) and (e)). 

DOE agrees and has made appropriate 

changes in the final rule. Culpability 

will be considered in the assessment of 

adjustment factors when determining an 

appropriate level of penalty. 

Accordingly, this paragraph is now 

included as an adjustment factor under 

Appendix B section IX(b)(3)(e) of the 

final rule. 

Two other commenters (Exs. 29, 36) 

pointed out that, as defined in the 

supplemental proposal, a severity level 

II violation could be increased to 

severity level I if a contractor failed to 

report a violation. These commenters 

argued that this potential increase in 

severity level would make NTS 

reporting mandatory. DOE agrees. 

Accordingly, this provision of the 

supplemental proposal has been moved 

to Appendix B section IX(b)(3)(g) in the 

final rule and is no longer included as 

a factor in determining severity. As in 

the nuclear safety enforcement program, 

self-reporting is included as an 

adjustment factor in determining 

appropriate penalty amounts. 

Two commenter (Exs. 36, 47) took 

issues with Appendix A section VI(g) 

which provided special considerations 

for facility-related legacy hazards in 

determining severity levels. One 

commenter (Ex. 47) stated that this 

section of the supplemental proposed 

rule did not address personnel-related 

legacy issues such as asbestosis cases, 

hearing loss due to chronic noise 

exposures, etc. The other commenter 

(Ex. 36) wondered whether facilityrelated and legacy hazards would be 

considered in determining the severity 

of the hazard or would be considered as 

a mitigating factor when determining 

penalty amounts. DOE has considered 

both of these comments as well as other 

comments received related to legacy 

hazards and believes that flexibility for 

legacy hazards is best addressed through 

worker safety and health program 

requirements rather than through 

adjustments to the severity level of a 

violation. Accordingly, DOE has 

removed this paragraph from Appendix 

B section VI of the final rule. Under the 

final rule, facility-closure issues must be 

addressed under the contractor’s safety 

and health program (final rule section 

851.21(b)). DOE’s intent is that this 

provision address facility-closure issues 

impacting worker safety and health. 

Appendix B section IX of the final 

rule clarifies that DOE may invoke the 

provisions for reducing contract fees in 

cases: (1) Involving especially egregious 

violations; (2) that indicate a general 

failure to perform under the contract 

with respect to worker safety and 

health; or (3) where the DOE line 

management believes a violation 

requires swift enforcement and 

corrective action. Where DOE uses 

environmental closure-type contracts, 

some of short duration and/or where fee 

payments are scheduled only after 

significant accomplishment of work, 

DOE would initially pursue the use of 

the fee reduction provision. Such 

violations would call into question a 

contractor’s commitment and ability to 

achieve the fundamental obligation of 

providing safe and healthy workplaces 

for workers because of factors such as 

willfulness, repeated violations, death, 

serious injury, patterns of violations, 

flagrant DOE-identified violations, 

repeated poor performance in areas of 

concern, or serious breakdown in 

management controls. Because such 

violations indicate a general failure to 

perform under the contract with respect 

to worker safety and health where both 

remedies are available and DOE elects to 

use a reduction in fee, DOE would 

expect to reduce fees substantially 

under the Conditional Payment of Fee 

clause. 

Regarding the factor of ability of DOE 

contractors to pay civil penalties, the 

policy provides in Appendix B section 

IX(b)(2) that it is not DOE’s intention 

that the economic impact of a civil 

penalty would put a DOE contractor out 

of business. Several commenters (Exs. 

29, 42, 47) contend that since DOE 

controls funding, some accommodation 

would be appropriate in circumstances 

where the violation existed because 

funding was not provided. They go on 

to state that contactors should not be 

liable if they have notified the 

contracting officer or COR that funds are 

needed to correct legacy hazards and 

infrastructure issues (Exs. 42, 47). The 

Director will consider all relevant 

factors in determining an appropriate 

enforcement method. However, the rule 

makes no provision for violations that 

have existed and have not been abated 

for lack of funding. It is the 

responsibility of contractors to be in 

compliance on the effective date of this 

rule. 

The policy also provides that when a 

contractor asserts that it cannot pay the 

proposed penalty, DOE would evaluate 

the relationship of affiliated entities to 

the contractor such as parent 

corporations. One commenter (Ex. 39) 

stated that such an approach is ‘‘in 

direct contravention of state laws that 

establish C-corporations, S-corporations 

and limited liability companies (LLCs), 

as well as other legal entities.’’ DOE 

appreciates these concerns. 

Nevertheless, to ensure that responsible 

parties such as an affiliate are held 

responsible for the safety and health of 

workers, and to maintain consistency 

with the duties and responsibilities set 

forth in 10 CFR part 820, DOE has 

determined that it is necessary to 

continue to reference affiliated entities. 

Based on the adjustment factors 

relating to a noncompliance as 

described in Appendix B section 

IX(b)(3), DOE could mitigate a civil 

penalty from the statutory maximum of 

$70,000 per violation per day. 

Mitigation factors used to reduce a civil 

penalty include whether a DOE 

contractor promptly identified and 

reported a violation and took effective 

corrective actions. Factors used to 

increase penalties (but not over the 

statutory maximum of $70,000) would 

include whether a violation is repeated 

or involves willfulness, death, serious 

physical harm, patterns of systemic 

violations, flagrant DOE-identified 

violations, repeated poor performance 

in an area of concern, or serious 

breakdowns in management controls. 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6927 

One commenter (Ex. 13) suggested 

that the adjustment/mitigating factors 

should include percentages as in 10 CFR 

part 820. In response, DOE notes that in 

addition to establishing civil penalty 

percentages based on the severity of the 

violation, 10 CFR part 820 establishes 

adjustment factor percentages for two 

mitigating factors: (1) Reduction of up to 

50% of civil penalty for selfidentification and -reporting and (2) 

increases or decreases of up to 50% of 

civil penalty for failure to take 

corrective action or for implementation 

of prompt corrective action, 

respectively. DOE has included similar 

percentage adjustments based on 

severity of hazards and based on selfidentification and -reporting in both the 

supplemental proposal and in the final 

rule at Appendix B section IX(b)(4). 

DOE has not included a specific 

adjustment percentage based on the 

promptness of corrective action for two 

reasons: (1) DOE already ties corrective 

action into the adjustment factor for 

self-identification and -reporting in 

section IX(b)(4) which states, ‘‘ No 

consideration will be given to a 

reduction in penalty * * * if the 

immediate actions necessary to restore 

compliance with the worker safety and 

health requirements are not taken;’’ and 

(2) DOE is limited under section 234 C 

of the AEA to imposing a maximum 

civil penalty of $70,000 per violation, 

per day. In other words, DOE is 

prohibited under the statute from 

applying a 50% increase to the base 

civil penalty of $70,000. 

Several commenters (Exs. 31, 37, 45, 

51) suggested mitigating penalties based 

on a contractor’s good faith, timely 

corrective action, and general inspection 

history, and providing a comprehensive 

list of positive mitigating factors in 

Appendix B. DOE discusses adjustment 

factors (including positive mitigating 

factors) in Appendix B, section IX(b)(3) 

of the final rule. This discussion 

touches upon many of the items listed 

by the commenters, however, DOE 

disagrees that a specific list of positive 

mitigating factors should be included in 

the rule. DOE believes that such a list 

would be limiting and could actually 

stifle contractor innovation in 

implementing their safety and health 

program. Mitigating factors, in different 

combinations, in different 

circumstances, may affect the penalty 

amount in different ways. Simply 

stated, DOE’s intent in applying positive 

mitigating factors is to recognize 

proactive contractor safety and health 

measures when considering appropriate 

enforcement actions. The same 

commenter went on to support 

enforcement immunity for contractors 

who self-identify violations. Contractors 

are responsible for providing a 

workplace free from recognized hazards, 

not just identifying hazards. Hazard 

identification is fundamental to the 

worker safety and health program. 

Contractors are also responsible for 

evaluating hazards, implementing 

interim protective measures and abating 

noncompliances. If contractors were 

granted immunity for identifying 

hazards, then inappropriate or 

inadequate contractor actions that 

normally follow hazard identification 

would not be citable by the Office of 

Price-Anderson Enforcement. The 

procedure retained in the final rule is 

consistent with enforcement actions in 

Appendix A of 10 CFR part 820. 

Two commenters (Exs. 29, 36) argued 

that the rule should provide for personal 

errors and employee willful misconduct 

beyond the control of the contractor, 

including a responsibility for employees 

to comply (similar to section 5(b) of the 

Occupational Safety and Health Act) 

and should mirror the ‘‘unpreventable 

employee misconduct’’ defense 

recognized by OSHA. DOE agrees and 

added section 851.12(b) to the final rule 

to prohibit workers from taking actions 

inconsistent with the rule. DOE will 

develop enforcement guidance for the 

rule that will include provisions similar 

to OSHA’s unpreventable employee 

misconduct defense outlined in OSHA’s 

Field Inspection Reference Manual. 

Another commenter (Ex. 29) stated that 

an isolated case of a willful violation by 

an employee may be outside the control 

of the contractor should be eliminated 

from enforcement discretion, and 

should not be considered as grounds for 

classifying the violation as a ‘‘willful’’

violation. DOE agrees and intends for 

the policy regarding willful violations to 

address a willful violation on the part of 

contractor management. 

As noted previously, when both 

remedies are available, DOE may 

consider a reduction in contract fees if 

a violation is especially egregious or 

indicates a general failure to perform 

under the contract with respect to 

worker safety and health. One 

commenter (Ex. 29) inquired as to 

whether mitigating factors would be 

applied to contract penalties as they 

might be applied to civil penalties. In 

response, DOE notes that except where 

a violation is considered a continuing 

violation, and each day is considered a 

separate day for the purposes of 

computing the penalty, the maximum 

contract penalty for each violation will 

not exceed $70,000. DOE further notes 

that adjustment factors also apply to 

contract penalties. Section IX.2(e) 

indicates that DOE will evaluate the 

relationship between a contractor and 

affiliated entities in determining 

whether a contractor is able to pay a 

proposed penalty. DOE will generally 

consider the scope and magnitude of the 

contract and associated fees and/or 

profit, among other factors. It is not the 

intent of DOE to put a contractor out of 

business by assessing large penalties. In 

rare circumstances, when the nature of 

a contractor’s violations and conduct are 

especially egregious, then contract 

termination may be more appropriate. In 

determining whether to refer a violation 

to the appropriate DOE official 

responsible for administering reductions 

in fee pursuant to the Conditional 

Payment of Fee clause, the Director will 

generally focus on the factors stated 

above, such as willfulness, repeated 

violations, death, serious injury, 

patterns of systemic violations, flagrant 

DOE-identified violations, repeated poor 

performance in an area of concern, or 

serious breakdown in management 

controls. In cases where DOE may elect 

between civil penalties and a contract 

penalty, these kinds of factors may also 

lead DOE to consider a reduction in fee 

if they raise doubts about a contractor’s 

overall performance or ability to 

perform its contract with proper regard 

for worker safety and health. 

One commenter (Ex. 25) favored a 

penalty structure more in line with 

OSHA’s penalty structure. In 

establishing the base civil penalties for 

the types of violations in this policy, 

DOE set the starting base amounts at 

levels higher than the average OSHA 

penalty for several reasons. DOE’s 

activities are conducted by large, 

experienced management and operating 

contractors and their subcontractors. 

Through the contractual relationships 

that DOE has with these entities, DOE 

is in constant dialogue concerning the 

management and operation of DOE’s 

sites and the performance of its 

governmental missions. DOE has the 

authority to require these contractors to 

develop their own worker safety and 

health programs for DOE approval. 

Moreover, DOE may unilaterally direct 

contractors to include various 

provisions in their programs. Thus, the 

Director is in a position to enforce 

against these programs and can provide 

incentives for proactive compliance. 

The policy strongly encourages selfidentification of violations, selfreporting, tracking systems, and 

corrective action programs. Moreover, 

DOE also has the authority and 

flexibility to coordinate and choose 

either a civil penalty or fee reduction 

remedy based on the enforcement policy 


cprice-sewell on PROD1PC66 with RULES2
6928 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

and the fee reduction contract clause. 

The proposed enforcement structure of 

this rule fits the DOE complex better 

than would a generic system as found in 

OSHA’s enforcement programs. 

Finally, as a tool for implementing the 

enforcement policy, Appendix B section 

IX(b)(5) clarifies that DOE intends to 

provide a computerized database system 

to allow contractors to voluntarily 

report worker safety and health 

noncompliances. DOE will enhance its 

NTS, currently used for reporting of 

noncompliances of the DOE nuclear 

safety requirements, to permit its use for 

reporting noncompliances with this 

rule. DOE will develop appropriate 

reporting thresholds unique to worker 

safety and health to assure that the 

system will focus on issues with the 

greatest potential consequences for 

worker safety and health. 

Numerous commenters believed that 

contractor reporting into NTS is the 

most important issue to resolve, and 

that details about reporting thresholds, 

recording noncompliances, integration 

of reporting with existing DOE reporting 

requirements, among other issues, will 

have a bearing on contractor operations 

and their cost of doing business. All 

commenters (Exs. 5, 9, 15, 25, 28, 29, 30, 

31, 35, 38, 39, 42, 45, 47, 49, 51, 57) 

stated that doing so places contractors 

in a position of making ‘‘an admission 

against interest,’’ that DOE should 

provide immunity for self-reported 

violations, and that reporting would 

have a negative economic impact. DOE 

disagrees and views contractor reporting 

of noncompliances as responsible and 

in the best interest of the contractor, 

since up to 50 percent mitigation of the 

base penalty may be granted for selfreporting. While contractors should 

track all their noncompliances locally, 

only a subset would be reported into 

NTS based on reasonable reporting 

thresholds that will be established in a 

future enforcement guidance 

supplement (EGS). DOE anticipates that 

the NTS reporting thresholds will be 

established such that only severity level 

I and certain severity level II 

noncompliances will be reported. The 

EGS will also provide guidance on the 

reporting of noncompliances involving 

repeat, willful, programmatic, etc. 

issues. 

The NTS reporting scheme is similar 

to that already in use for nuclear safety 

enforcement. One commenter (Ex. 29 

queried as to whether contractors would 

eventually move toward trending 

deficiencies and programmatic 

deficiencies. Enforcement of the 

requirements of this rule will be 

conducted from the Office of PriceAnderson Enforcement. DOE notes that 

a well-developed contractor worker 

safety and health program should 

involve trending and include an 

evaluation to determine whether 

identified noncompliances are of a 

programmatic nature. This type of 

evaluation would impact the 

contractor’s response to identified 

noncompliances. 

Several commenters (Exs. 10, 13, 16, 

29, 31, 37, 42, 49) took issue with 

reporting noncompliances into NTS and 

argued that this reporting would result 

in increased operating and management 

costs since these represent new 

requirements. These commenters argued 

that DOE should coordinate NTS with 

the Occurrence Reporting and 

Processing System (ORPS) to eliminate 

duplication of reporting. One of the 

commenters (Ex. 37) recommended 

eliminating contractor reporting 

altogether and suggested that DOE 

should require local DOE reporting of 

violations that result in actual 

endangerment to contractor employees. 

DOE disagrees with the commenter and 

believes that contractors are in the best 

position to identify noncompliances in 

their covered workplaces, not local DOE 

officials. In addition, local DOE 

representatives are not part of the 

enforcement program. Contractors 

operating under the requirements of 

DOE Order 440.1A are responsible for 

identifying, analyzing and abating 

noncompliances and reporting certain 

noncompliances to ORPS and 

Computerized Accident/Incident 

Reporting System (CAIRS). While future 

enforcement guidance supplements 

(EGSs) may identify what reportable 

information may be common to various 

reporting systems, it is generally left to 

the contractor to develop efficiencies in 

its own operating environment. DOE 

will continue to look at economies of 

scale between its different reporting 

systems. Final rule section 851.26 now 

requires reporting in accordance with 

DOE Manual 231.1–1A, Environment, 

Safety and Health Reporting Manual 

(DOE M 231.1–1A), May 9, 2005. 

Section 851.20(a) establishes 

requirements for worker involvement in 

the safety and health program and 

851.20(b) establishes worker rights to 

access certain information, including 

limited access to OSHA Form 300 and 

301 information. Another commenter 

(Ex. 29) questioned what was meant in 

supplemental proposed Appendix A 

section IX(b)(5)(c) by requiring that DOE 

have ‘‘access’’ to the contractor’s 

tracking system. DOE’s intent with this 

statement is that if requested, 

contractors would provide DOE 

information/data on noncompliances 

tracked locally. 

With respect to contractors relying on 

direction given by DOE, and this 

reliance contributing to a violation, one 

commenter (Ex. 47) stated that 

supplemental proposed Appendix A 

section IX(b)(8) should indicate that 

DOE ‘‘shall’’ (instead of ‘‘may’’) refrain 

from issuing a notice of violation, or 

‘‘shall’’ (instead of ‘‘may’’) mitigate, 

either partially or entirely, any proposed 

civil penalty when DOE has a 

contributing role according to 

provisions in the rule. DOE disagrees. 

The word may, instead of shall, gives 

the Director the discretion that is 

needed. Whether or not a notice of 

violation is issued depends on the 

nature of the direction given by DOE to 

the contractor, not simply that direction 

was given by DOE, and the extent to 

which a contractor relies on the 

direction from DOE. 

LIST OF COMMENTERS

Exhibit No. Company/organization 

1 ........................ Robert Burger, CEM. 

2 ........................ Richard Lewis. 

3 ........................ Beverly Brookshire. 

4 ........................ Robert P. Sierzputoowski. 

5 ........................ Waste Isolation Pilot Plant. 

6 ........................ Bryan Bowser. 

7 ........................ Argonne Fire Department. 

8 ........................ Jane Lataille. 

9 ........................ Honeywell Federal Manufacturing & Technologies. 

10 ...................... Glenn Bell. 

11 ...................... David M. Smith. 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6929 

LIST OF COMMENTERS—Continued 

Exhibit No. Company/organization 

12 ...................... Geoffrey Gorsuch. 

13 ...................... CH2M Hill Corporation. 

14 ...................... Peter Washburn. 

15 ...................... University of California—Los Alamos National Laboratory; Lawrence Berkeley National Laboratory; Lawrence Livermore National Laboratory. 

16 ...................... Westinghouse Savannah River Company. 

17 ...................... R&D Electrical Safety Meeting and Workshop Attendees. 

18 ...................... R&D Electrical Safety Meeting and Workshop-Group #2. 

19 ...................... Duke Cogema Stone & Webster, LLC. 

20 ...................... BWXT Pantex. 

21 ...................... S & V Wallace. 

22 ...................... National Fire Protection Association (NFPA). 

23 ...................... Gai Oglesbee. 

24 ...................... International Code Council. 

25 ...................... Princeton Plasma Physics laboratory. 

26 ...................... Sandia National Laboratory. 

27 ...................... Jefferson Laboratory. 

28 ...................... Fluor Fernald, Incorporated. 

29 ...................... Brookhaven Science Associates. 

30 ...................... Paper, Allied Industrial Chemical & Energy Workers Union (PACE). 

31 ...................... Bechtel Hanford. 

32 ...................... Charles R. Briggs. 

33 ...................... Universities Research Association, Inc. 

34 ...................... University of Chicago—Argonne National Laboratory. 

35 ...................... CH2M Hill Hanford Group. 

36 ...................... Pacific Northwest National Laboratory—Battelle Memorial Institute. 

37 ...................... Honeywell International, Inc. 

38 ...................... Stanford Linear Accelerator Center. 

39 ...................... Bechtel Jacobs Company, LLC. 

40 ...................... Building and Construction Trades Department, AFL–CIO. 

41 ...................... James Seward, MD. 

42 ...................... UT-Battelle, LLC. 

43 ...................... Voluntary Protection Program Participant’s Association (VPPPA). 

44 ...................... Senators Jim Bunning & Edward M. Kennedy. 

45 ...................... Fluor Corporation. 

46 ...................... BWXT Technologies, Inc. 

47 ...................... Idaho National Laboratory. 

48 ...................... Bechtel National, Inc. Hanford Waste Treatment and Immobilization Plant. 

49 ...................... BWXT–Y12. 

50 ...................... Edward Jacobson. 

51 ...................... Fluor. 

52 ...................... Chris Blankner. 

53 ...................... Randall Unger. 

54 ...................... The International Chemical Workers Union Council of the United Food and Commercial Workers Union. 

55 ...................... Atomic Trades and Labor Council. 

56 ...................... American Conference of Governmental Industrial Hygienists (ACGIH). 

57 ...................... DOE Contractor Attorneys’ Association, Inc. 

58 ...................... Bechtel Nevada Corporation. 

59 ...................... Donald Stedem, James Dotts, Scott Wood, Bo Kim, Graham Giles, Barbara Yoerg, Robert Griffith, Allen Herrbach, Roger 

Goldie, Roger Smith, Joseph Cohen. 

60 ...................... Ted Strickland, U.S. Representative. 

61 ...................... David Mowrer. 

62 ...................... Government Accountability Project. 

V. Procedural Requirements 

A. Review Under Executive Order 12866 

Today’s regulatory action has been 

determined to be a ‘‘significant 

regulatory action’’ under Executive 

Order 12866, ‘‘Regulatory Planning and 

Review’’ (58 FR 51735, October 4, 1993), 

as amended by Executive Order 13258 

(67 FR 9385, February 26, 2002). 

Accordingly, DOE submitted this final 

rule to the Office of Information and 

Regulatory Affairs of the Office of 

Management and Budget, which has 

completed its review. 

B. Review Under Executive Order 12988 

With respect to the review of existing 

regulations and the promulgation of 

new regulations, section 3(a) of 

Executive Order 12988, ‘‘Civil Justice 

Reform’’ (61 FR 4779, February 7, 1996) 

imposes on Federal agencies the general 

duty to adhere to the following 

requirements: eliminate drafting errors 

and needless ambiguity, write 

regulations to minimize litigation, 

provide a clear legal standard for 

affected conduct rather than a general 

standard, and promote simplification 

and burden reduction. Section 3(b) 

requires Federal agencies to make every 

reasonable effort to ensure that a 

regulation, among other things: clearly 

specifies the preemptive effect, if any, 

adequately defines key terms, and 

addresses other important issues 

affecting the clarity and general 

draftsmanship under guidelines issued 

by the Attorney General. Section 3(c) of 

Executive Order 12988 requires 


cprice-sewell on PROD1PC66 with RULES2
6930 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

Executive agencies to review regulations 

in light of applicable standards in 

section 3(a) and section 3(b) to 

determine whether they are met or it is 

unreasonable to meet one or more of 

them. DOE has completed the required 

review and determined that, to the 

extent permitted by law, this final rule 

meets the relevant standards of 

Executive Order 12988. 

C. Review Under Executive Order 13132 

Executive Order 13132 (64 FR 43255, 

August 10, 1999), imposes certain 

requirements on agencies formulating 

and implementing policies or 

regulations that preempt State law or 

that have federalism implications. 

Agencies are required to examine the 

constitutional and statutory authority 

supporting any action that would limit 

the policymaking discretion of the 

States and carefully assess the necessity 

for such actions. 

Today’s regulatory action has been 

determined not to be a ‘‘policy that has 

federalism implications,’’ that is, it does 

not have substantial direct effects on the 

states, on the relationship between the 

national government and the states, nor 

on the distribution of power and 

responsibility among the various levels 

of government under Executive Order 

13132 (64 FR 43255, August 10, 1999). 

Accordingly, no ‘‘federalism summary 

impact statement’’ was prepared or 

subjected to review under the Executive 

Order by the Director of the Office of 

Management and Budget. 

D. Review Under Executive Order 13175 

Under Executive Order 13175 (65 FR 

67249, November 6, 2000) on 

‘‘Consultation and Coordination with 

Indian Tribal Governments,’’ DOE may 

not issue a discretionary rule that has 

‘‘tribal implications’’ and imposes 

substantial direct compliance costs on 

Indian tribal governments. DOE has 

determined that this final rule does not 

have such effects and concluded that 

Executive Order 13175 does not apply 

to this rule. 

E. Reviews Under the Regulatory 

Flexibility Act 

The Regulatory Flexibility Act of 1980 

(5 U.S.C. 601 et seq.) requires that an 

agency prepare an initial regulatory 

flexibility analysis for any regulation 

which a general notice of proposed 

rulemaking is required, unless the 

agency certifies that the rule, if 

promulgated, will not have a significant 

economic impact on a substantial 

number of small entities (5 U.S.C. 

605(b)). 

Today’s regulation establishes DOE’s 

requirements for worker safety and 

health at DOE sites. The contractors 

who manage and operate DOE facilities 

are principally responsible for 

implementing the rule requirements. 

DOE considered whether these 

contractors are ‘‘small businesses,’’ as 

that term is defined in the Regulatory 

Flexibility Act’s (5 U.S.C. 601(3)). The 

Regulatory Flexibility Act’s definition 

incorporates the definition of ‘‘small 

business concern’’ in the Small Business 

Act, which the Small Business 

Administration (SBA) has developed 

through size standards in 13 CFR part 

121. The DOE contractors subject to this 

rule exceed the SBA’s size standards for 

small businesses. In addition, DOE 

expects that any potential economic 

impact of this rule on small businesses 

would be minimal because DOE sites 

perform work under contracts to DOE or 

the prime contractor at the site. DOE 

contractors are reimbursed through their 

contracts with DOE for the costs of 

complying with DOE safety and health 

program requirements. They would not, 

therefore, be adversely impacted by the 

requirements in this rule. For these 

reasons, DOE certifies that today’s rule 

does not have a significant economic 

impact on a substantial number of small 

entities, and therefore, no regulatory 

flexibility analysis has been prepared. 

See 68 FR 7990 at III.1. and III.1.c. 

(February 19, 2003). 

F. Review Under the Paperwork 

Reduction Act 

The information collection provisions 

of this rule are not substantially 

different from those contained in DOE 

contracts with DOE prime contractors 

covered by this rule and were 

previously approved by the Office of 

Management and Budget (OMB) and 

assigned OMB Control No. 1910–5103. 

That approval covered submission of a 

description of an integrated safety 

management system required by the 

Integration of Environment, Health and 

Safety into Work Planning and 

Execution clause set forth in the DOE 

procurement regulations. 48 CFR 

952.223–71 and 970.5223–1, 62 FR 

34842, 34859–60 (June 17, 1997). If 

contractors at a DOE site fulfill their 

contractual responsibilities for 

integrated safety management properly, 

the worker safety and health program 

required by this regulation should 

require little if any new analysis or new 

documents to the extent that existing 

analysis and documents are sufficient 

for purposes of the regulations. 

Accordingly, no additional Office of 

Management and Budget clearance is 

required by the Paperwork Reduction 

Act of 1995 (44 U.S.C. 3501 et seq.) and 

the procedures implementing that Act, 5 

CFR 1320.1 et seq. 

G. Review Under the National 

Environmental Policy Act 

DOE currently implements its broad 

authority to regulate worker safety and 

health through internal DOE directives 

incorporated into contracts to manage 

and operate DOE facilities, contract 

clauses and DOE regulations. This rule 

implements the statutory mandate to 

promulgate worker safety and health 

regulations for DOE facilities that 

provide a level of protection for workers 

at DOE facilities that is substantially 

equivalent to the level of protection 

currently provided to such workers and 

to provide procedures to ensure 

compliance with the rule. DOE 

anticipates that the contractor’s work 

and safety programs required by this 

regulation is based on existing programs 

and that this rule generally does not 

require the development of a new 

program. DOE has therefore concluded 

that promulgation of these regulations 

falls into the class of actions that does 

not individually or cumulatively have a 

significant impact on the human 

environment as set forth in the DOE 

regulations implementing the National 

Environmental Policy Act of 1969 (42 

U.S.C. 4321 et seq.). Specifically, the 

rule is covered under the categorical 

exclusion in paragraph A6 of Appendix 

A to Subpart D, 10 CFR Part 1021, 

which applies to the establishment of 

procedural rulemakings. Accordingly, 

neither an environmental assessment 

nor an environmental impact statement 

is required. 

H. Review Under the Unfunded 

Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (Pub. L. 104–4) 

requires each Federal agency to prepare 

a written assessment of the effects of 

any Federal mandate in a proposed or 

final agency regulation that may result 

in the expenditure by states, tribal, or 

local governments, in the aggregate, or 

by the private sector, of $100 million in 

any one year. The Act also requires a 

Federal agency to develop an effective 

process to permit timely input by 

elected officials of state, tribal, or local 

governments on a proposed ‘‘significant 

intergovernmental mandate,’’ and 

requires an agency plan for giving notice 

and opportunity to provide timely input 

to potentially affected small 

governments before establishing any 

requirements that might significantly or 

uniquely affect small governments. DOE 

has determined that the rule published 

today does not contain any Federal 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6931 

mandates affecting small governments, 

so these requirements do not apply. 

I. Review Under Executive Order 13211 

Executive Order 13211 (Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use), 66 FR 28355 (May 

22, 2001) requires preparation and 

submission to OMB of a Statement of 

Energy Effects for significant regulatory 

actions under Executive Order 12866 

that are likely to have a significant 

adverse effect on the supply, 

distribution, or use of energy. DOE has 

determined that the rule published 

today does not have a significant 

adverse effect on the supply, 

distribution, or use of energy and thus 

the requirement to prepare a Statement 

of Energy Effects does not apply. 

J. Review Under the Treasury and 

General Government Appropriations 

Act, 1999 

Section 654 of the Treasury and 

General Government Appropriations 

Act, 1999 (Pub. L. 105–277) requires 

Federal agencies to issue a ‘‘Family 

Policymaking Assessment’’ for any rule 

that may affect family well-being. This 

rule has no impact on the autonomy or 

integrity of the family as an institution. 

Accordingly, DOE has concluded that it 

is not necessary to prepare a Family 

Policymaking Assessment. 

K. Review Under the Treasury and 

General Government Appropriations 

Act, 2001 

The Treasury and General 

Government Appropriations Act, 2001 

(44 U.S.C. 3516, note) provides for 

agencies to review most dissemination 

of information to the public under 

guidelines established by each agency 

pursuant to general guidelines issued by 

OMB. OMB’s guidelines were published 

at 67 FR 8452 (Feb. 22, 2002), and 

DOE’s guidelines were published at 67 

FR 62446 (Oct. 7, 2002). DOE has 

reviewed today’s final rule under the 

OMB and DOE guidelines, and has 

concluded that it is consistent with 

applicable policies in those guidelines. 

L. Congressional Notification 

As required by 5 U.S.C. 801, DOE will 

submit to Congress a report regarding 

the issuance of today’s final rule prior 

to the effective date set forth at the 

outset of this notice. The report will 

state that it has been determined that 

the rule is not a ‘‘major rule’’ as defined 

by 5 U.S.C. 801(2). 

VI. Approval of the Office of the 

Secretary 

The Secretary of Energy has approved 

publication of this final rule. 

List of Subjects 

10 CFR Part 850 

Beryllium, Chronic beryllium disease, 

Hazardous substances, Lung diseases, 

Occupational safety and health, 

Reporting and recordkeeping 

requirements. 

10 CFR Part 851 

Civil penalty, Federal buildings and 

facilities, Incorporation by reference, 

Occupational safety and health, Safety, 

Reporting and recordkeeping 

requirements. 

Issued in Washington, DC, on January 20, 

2006. 

John Spitaleri Shaw, 

Assistant Secretary for Environment, Safety 

and Health. 

■ For the reasons set forth in the 

preamble, the Department of Energy is 

amending chapter III of title 10 of the 

Code of Federal Regulations as follows: 

PART 850—CHRONIC BERYLLIUM 

DISEASE PREVENTION PROGRAM 

■ 1. The authority citation for part 850 

is revised to read as follows: 

Authority: 42 U.S.C. 2201(i)(3), (p); 42 

U.S.C. 2282c; 29 U.S.C. 668; 42 U.S.C. 7101 

et seq.; 50 U.S.C. 2401 et seq., E.O. 12196, 3 

CFR 1981 comp., at 145 as amended. 

■ 2. Section 850.1 is revised to read as 

follows: 

§ 850.1 Scope. 

This part provides for establishment 

of a chronic beryllium disease 

prevention program (CBDPP) that 

supplements and is deemed an integral 

part of the worker safety and health 

program under part 851 of this chapter. 

■ 3. Section 850.4 is revised to read as 

follows: 

§ 850.4 Enforcement. 

DOE may take appropriate steps 

pursuant to part 851 of this chapter to 

enforce compliance by contractors with 

this part and any DOE-approved CBDPP. 

■ 4. A new part 851 is added to Chapter 

III to read as follows: 

PART 851—WORKER SAFETY AND 

HEALTH PROGRAM 

Subpart A—General Provisions 

Sec. 

851.1 Scope and purpose. 

851.2 Exclusions. 

851.3 Definitions. 

851.4 Compliance order. 

851.5 Enforcement. 

851.6 Petitions for generally applicable 

rulemaking. 

851.7 Request for a binding interpretive 

ruling. 

851.8 Informal requests for information. 

Subpart B—Program Requirements 

851.10 General requirements. 

851.11 Development and approval of 

worker safety and health program. 

851.12 Implementation. 

851.13 Compliance. 

Subpart C—Specific Program Requirements 

851.20 Management responsibilities and 

worker rights and responsibilities. 

851.21 Hazard identification and 

assessment. 

851.22 Hazard prevention and abatement. 

851.23 Safety and health standards. 

851.24 Functional areas. 

851.25 Training and information. 

851.26 Recordkeeping and reporting. 

851.27 Reference sources. 

Subpart D—Variances 

851.30 Consideration of variances. 

851.31 Variance process. 

851.32 Action on variance requests. 

851.33 Terms and conditions. 

851.34 Requests for conferences. 

Subpart E—Enforcement Process 

851.40 Investigations and inspections. 

851.41 Settlement. 

851.42 Preliminary notice of violation. 

851.43 Final notice of violation. 

851.44 Administrative appeal. 

851.45 Direction to NNSA contractors. 

Appendix A to Part 851—Worker 

Safety and Health Functional Areas 

Appendix B to Part 851—General 

Statement of Enforcement Policy 

Authority: 42 U.S.C. 2201(i)(3), (p); 42 

U.S.C. 2282c; 42 U.S.C. 5801 et seq.; 42 

U.S.C. 7101 et seq.; 50 U.S.C. 2401 et seq. 

Subpart A—General Provisions 

§ 851.1 Scope and purpose. 

(a) The worker safety and health 

requirements in this part govern the 

conduct of contractor activities at DOE 

sites. 

(b) This part establishes the: 

(1) Requirements for a worker safety 

and health program that reduces or 

prevents occupational injuries, 

illnesses, and accidental losses by 

providing DOE contractors and their 

workers with safe and healthful 

workplaces at DOE sites; and 

(2) Procedures for investigating 

whether a violation of a requirement of 

this part has occurred, for determining 

the nature and extent of any such 

violation, and for imposing an 

appropriate remedy. 

§ 851.2 Exclusions. 

(a) This part does not apply to work 

at a DOE site: 


cprice-sewell on PROD1PC66 with RULES2
6932 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

(1) Regulated by the Occupational 

Safety and Health Administration; or 

(2) Operated under the authority of 

the Director, Naval Nuclear Propulsion, 

pursuant to Executive Order 12344, as 

set forth in Public Law 98–525, 42 

U.S.C. 7158 note. 

(b) This part does not apply to 

radiological hazards or nuclear 

explosives operations to the extent 

regulated by 10 CFR Parts 20, 820, 830 

or 835. 

(c) This part does not apply to 

transportation to or from a DOE site. 

§ 851.3 Definitions. 

(a) As used in this part: 

AEA means the Atomic Energy Act of 

1954, 42 U.S.C. 2011 et seq. 

Affected worker means a worker who 

would be affected by the granting or 

denial of a variance, or any authorized 

representative of the worker, such as a 

collective bargaining agent. 

Closure facility means a facility that is 

non-operational and is, or is expected to 

be permanently closed and/or 

demolished, or title to which is 

expected to be transferred to another 

entity for reuse. 

Closure facility hazard means a 

facility-related condition within a 

closure facility involving deviations 

from the technical requirements of 

§ 851.23 of this part that would require 

costly and extensive structural/ 

engineering modifications to be in 

compliance. 

Cognizant Secretarial Officer means, 

with respect to a particular situation, 

the Assistant Secretary, Deputy 

Administrator, Program Office Director, 

or equivalent DOE official who has 

primary line management responsibility 

for a contractor, or any other official to 

whom the CSO delegates in writing a 

particular function under this part. 

Compliance order means an order 

issued by the Secretary to a contractor 

that mandates a remedy, work stoppage, 

or other action to address a situation 

that violates, potentially violates, or 

otherwise is inconsistent with a 

requirement of this part. 

Consent order means any written 

document, signed by the Director and a 

contractor, containing stipulations or 

conclusions of fact or law and a remedy 

acceptable to both DOE and the 

contractor. 

Construction means combination of 

erection, installation, assembly, 

demolition, or fabrication activities 

involved to create a new facility or to 

alter, add to, rehabilitate, dismantle, or 

remove an existing facility. It also 

includes the alteration and repair 

(including dredging, excavating, and 

painting) of buildings, structures, or 

other real property, as well as any 

construction, demolition, and 

excavation activities conducted as part 

of environmental restoration or 

remediation efforts. 

Construction contractor means the 

lowest tiered contractor with primary 

responsibility for the execution of all 

construction work described within a 

construction procurement or 

authorization document (e.g., 

construction contract, work order). 

Construction manager means the 

individual or firm responsible to DOE 

for the supervision and administration 

of a construction project to ensure the 

construction contractor’s compliance 

with construction project requirements. 

Construction project means the full 

scope of activities required on a 

construction worksite to fulfill the 

requirements of the construction 

procurement or authorization 

document. 

Construction worksite is the area 

within the limits necessary to perform 

the work described in the construction 

procurement or authorization 

document. It includes the facility being 

constructed or renovated along with all 

necessary staging and storage areas as 

well as adjacent areas subject to project 

hazards. 

Contractor means any entity, 

including affiliated entities, such as a 

parent corporation, under contract with 

DOE, or a subcontractor at any tier, that 

has responsibilities for performing work 

at a DOE site in furtherance of a DOE 

mission. 

Covered workplace means a place at a 

DOE site where a contractor is 

responsible for performing work in 

furtherance of a DOE mission. 

Director means a DOE Official to 

whom the Secretary assigns the 

authority to investigate the nature and 

extent of compliance with the 

requirements of this part. 

DOE means the United States 

Department of Energy, including the 

National Nuclear Security 

Administration. 

DOE Enforcement Officer means a 

DOE official to whom the Director 

assigns the authority to investigate the 

nature and extent of compliance with 

the requirements of this part. 

DOE site means a DOE-owned or 

-leased area or location or other area or 

location controlled by DOE where 

activities and operations are performed 

at one or more facilities or places by a 

contractor in furtherance of a DOE 

mission. 

Final notice of violation means a 

document that determines a contactor 

has violated or is continuing to violate 

a requirement of this part and includes: 

(1) A statement specifying the 

requirement of this part to which the 

violation relates; 

(2) A concise statement of the basis 

for the determination; 

(3) Any remedy, including the amount 

of any civil penalty; and 

(4) A statement explaining the 

reasoning behind any remedy. 

Final Order means an order of DOE 

that represents final agency action and, 

if appropriate, imposes a remedy with 

which the recipient of the order must 

comply. 

General Counsel means the General 

Counsel of DOE. 

Head of DOE Field Element means an 

individual who is the manager or head 

of the DOE operations office or field 

office. 

Interpretative ruling means a 

statement by the General Counsel 

concerning the meaning or effect of a 

requirement of this part which relates to 

a specific factual situation but may also 

be a ruling of general applicability if the 

General Counsel determines such action 

to be appropriate. 

National defense variance means 

relief from a safety and health standard, 

or portion thereof, to avoid serious 

impairment of a national defense 

mission. 

NNSA means the National Nuclear 

Security Administration. 

Nuclear explosive means an assembly 

containing fissionable and/or fusionable 

materials and main charge highexplosive parts or propellants capable of 

producing a nuclear detonation (e.g., a 

nuclear weapon or test device). 

Nuclear explosive operation means 

any activity involving a nuclear 

explosive, including activities in which 

main charge high-explosive parts and 

pit are collocated. 

Occupational medicine provider 

means the designated site occupational 

medicine director (SOMD) or the 

individual providing medical services. 

Permanent variance means relief from 

a safety and health standard, or portion 

thereof, to contractors who can prove 

that their methods, conditions, 

practices, operations, or processes 

provide workplaces that are as safe and 

healthful as those that follow the 

workplace safety and health standard 

required by this part. 

Preliminary notice of violation means 

a document that sets forth the 

preliminary conclusions that a 

contractor has violated or is continuing 

to violate a requirement of this part and 

includes: 

(1) A statement specifying the 

requirement of this part to which the 

violation relates; 

(2) A concise statement of the basis 

for alleging the violation; 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6933 

(3) Any remedy, including the amount 

of any proposed civil penalty; and 

(4) A statement explaining the 

reasoning behind any proposed remedy. 

Pressure systems means all pressure 

vessels, and pressure sources including 

cryogenics, pneumatic, hydraulic, and 

vacuum. Vacuum systems should be 

considered pressure systems due to 

their potential for catastrophic failure 

due to backfill pressurization. 

Associated hardware (e.g., gauges and 

regulators), fittings, piping, pumps, and 

pressure relief devices are also integral 

parts of the pressure system. 

Remedy means any action (including, 

but not limited to, the assessment of 

civil penalties, the reduction of fees or 

other payments under a contract, the 

requirement of specific actions, or the 

modification, suspension or rescission 

of a contract) necessary or appropriate 

to rectify, prevent, or penalize a 

violation of a requirement of this part, 

including a compliance order issued by 

the Secretary pursuant to this part. 

Safety and health standard means a 

standard that addresses a workplace 

hazard by establishing limits, requiring 

conditions, or prescribing the adoption 

or use of one or more practices, means, 

methods, operations, or processes, 

reasonably necessary or appropriate to 

provide safe and healthful workplaces. 

Secretary means the Secretary of 

Energy. 

Temporary variance means a shortterm relief for a new safety and health 

standard when the contractor cannot 

comply with the requirements by the 

prescribed date because the necessary 

construction or alteration of the facility 

cannot be completed in time or when 

technical personnel, materials, or 

equipment are temporarily unavailable. 

Unauthorized discharge means the 

discharge of a firearm under 

circumstances other than: (1) during 

firearms training with the firearm 

properly pointed down range (or toward 

a target), or (2) the intentional firing at 

hostile parties when deadly force is 

authorized. 

Under Secretary means, with respect 

to a particular situation, the DOE official 

who serves as the Under Secretary for 

Energy and Environment, or the Under 

Secretary for Science, or the Under 

Secretary for Nuclear Security/ 

Administrator for National Nuclear 

Security Administration who has 

primary line management responsibility 

for a contractor. 

Variance means an exception to 

compliance with some part of a safety 

and health standard granted by the 

Under Secretary to a contractor. 

Worker means an employee of a DOE 

contractor person who performs work in 

furtherance of a DOE mission at a 

covered workplace. 

Workplace hazard means a physical, 

chemical, biological, or safety hazard 

with any potential to cause illness, 

injury, or death to a person. 

(b) Terms undefined in this part that 

are defined in the Atomic Energy Act of 

1954 must have the same meaning as 

under that Act. 

§ 851.4 Compliance order. 

(a) The Secretary may issue to any 

contractor a Compliance Order that: 

(1) Identifies a situation that violates, 

potentially violates, or otherwise is 

inconsistent with a requirement of this 

part; 

(2) Mandates a remedy, work 

stoppage, or other action; and, 

(3) States the reasons for the remedy, 

work stoppage, or other action. 

(b) A Compliance order is a final 

order that is effective immediately 

unless the Order specifies a different 

effective date. 

(c) Within 15 calendar days of the 

issuance of a Compliance Order, the 

recipient of the Order may request the 

Secretary to rescind or modify the 

Order. A request does not stay the 

effectiveness of a Compliance Order 

unless the Secretary issues an order to 

that effect. 

(d) A copy of the Compliance Order 

must be prominently posted, once 

issued, at or near the location where the 

violation, potential violation, or 

inconsistency occurred until it is 

corrected. 

§ 851.5 Enforcement. 

(a) A contractor that is indemnified 

under section 170d. of the AEA (or any 

subcontractor or supplier thereto) and 

that violates (or whose employee 

violates) any requirement of this part 

shall be subject to a civil penalty of up 

to $70,000 for each such violation. If 

any violation under this subsection is a 

continuing violation, each day of the 

violation shall constitute a separate 

violation for the purpose of computing 

the civil penalty. 

(b) A contractor that violates any 

requirement of this part may be subject 

to a reduction in fees or other payments 

under a contract with DOE, pursuant to 

the contract’s Conditional Payment of 

Fee clause, or other contract clause 

providing for such reductions. 

(c) DOE may not penalize a contractor 

under both paragraphs (a) and (b) of this 

section for the same violation of a 

requirement of this part. 

(d) For contractors listed in 

subsection d. of section 234A of the 

AEA, 42 U.S.C. 2282a(d), the total 

amount of civil penalties under 

paragraph (a) and contract penalties 

under paragraph (b) of this section may 

not exceed the total amount of fees paid 

by DOE to the contractor in that fiscal 

year. 

(e) DOE shall not penalize a 

contractor under both sections 234A 

and 234C of the AEA for the same 

violation. 

(f) DOE enforcement actions through 

civil penalties under paragraph (a) of 

this section, start on February 9, 2007. 

§ 851.6 Petitions for generally applicable 

rulemaking. 

(a) Right to file. Any person may file 

a petition for generally applicable 

rulemaking to amend or interpret 

provisions of this part. 

(b) How to file. Any person who wants 

to file a petition for generally applicable 

rulemaking pursuant to this section 

must file by mail or messenger in an 

envelope addressed to the Office of 

General Counsel, GC–1, U.S. 

Department of Energy, 1000 

Independence Avenue, SW., 

Washington, DC 20585. 

(c) Content of rulemaking petitions. A 

petition under this section must: 

(1) Be labeled ‘‘Petition for 

Rulemaking Under 10 CFR 851;’’

(2) Describe with particularity the 

provision of this part to be amended and 

the text of regulatory language to be 

added; and 

(3) Explain why, if relevant, DOE 

should not choose to make policy by 

precedent through adjudication of 

petitions for assessment of civil penalty. 

(d) Determinations upon rulemaking 

petitions. After considering the petition 

and other information DOE deems 

relevant, DOE may grant the petition 

and issue an appropriate rulemaking 

notice, or deny the petition because the 

rule being sought: 

(1) Would be inconsistent with 

statutory law; 

(2) Would establish a generally 

applicable policy in a subject matter 

area that should be left to case-by-case 

determinations; or 

(3) For other good cause. 

§ 851.7 Requests for a binding 

interpretative ruling. 

(a) Right to file. Any person subject to 

this part have the right to file a request 

for an interpretive ruling that is binding 

on DOE with regard to a question as to 

how the regulations in this part would 

apply to particular facts and 

circumstances. 

(b) How to file. Any person who wants 

to file a request under this section must 

file by mail or messenger in an envelop 

addressed to the Office of General 

Counsel, GC–1, U.S. Department of 


cprice-sewell on PROD1PC66 with RULES2
6934 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

Energy, 1000 Independence Avenue, 

SW., Washington, DC 20585. 

(c) Content of request for interpretive 

ruling. A request under this section 

must: 

(1) Be in writing; 

(2) Be labeled ‘‘Request for 

Interpretive Ruling Under 10 CFR 851;’’

(3) Identify the name, address, 

telephone number, e-mail address, and 

any designated representative of the 

person filing the request; 

(4) State the facts and circumstances 

relevant to the request; 

(5) Be accompanied by copies of 

relevant supporting documents if any; 

(6) Specifically identify the pertinent 

regulations and the related question on 

which an interpretive ruling is sought; 

and 

(7) Include explanatory discussion in 

support of the interpretive ruling being 

sought. 

(d) Public comment. DOE may give 

public notice of any request for an 

interpretive ruling and provide an 

opportunity for public comment. 

(e) Opportunity to respond to public 

comment. DOE may provide an 

opportunity to any person who requests 

an interpretive ruling to respond to 

public comments relating to the request. 

(f) Other sources of information. DOE 

may: 

(1) Conduct an investigation of any 

statement in a request; 

(2) Consider any other source of 

information in evaluating a request for 

an interpretive ruling; and 

(3) Rely on previously issued 

interpretive rulings with addressing the 

same or a related issue. 

(g) Informal conference. DOE may 

convene an informal conference with 

the person requesting the interpretive 

ruling. 

(h) Effect of interpretive ruling. Except 

as provided in paragraph (i) of this 

section, an interpretive ruling under this 

section is binding on DOE only with 

respect to the person who requested the 

ruling. 

(i) Reliance on interpretive ruling. If 

DOE issues an interpretive ruling under 

this section, then DOE may not subject 

the person who requested the ruling to 

an enforcement action for civil penalties 

for actions reasonably taken in reliance 

on the ruling, but a person may not act 

in reliance on an interpretive ruling that 

is administratively rescinded or 

modified after opportunity to comment, 

judicially invalidated, or overruled by 

statute or regulation. 

(j) Denial of requests for an 

interpretive ruling. DOE may deny a 

request for an interpretive ruling if DOE 

determines that: 

(1) There is insufficient information 

upon which to base an interpretive 

ruling; 

(2) The interpretive question posed 

should be treated in a general notice of 

proposed rulemaking; 

(3) There is an adequate procedure 

elsewhere in this part for addressing the 

interpretive question such as a petition 

for variance; or 

(4) For other good cause. 

(k) Public availability of interpretive 

rulings. For information of interested 

members of the public, DOE may file a 

copy of interpretive rulings on a DOE 

internet web site. 

§ 851.8 Informal requests for information. 

(a) Any person may informally 

request information under this section 

as to how to comply with the 

requirements of this part, instead of 

applying for a binding interpretive 

ruling under § 851.7. DOE responses to 

informal requests for information under 

this section are not binding on DOE and 

do not preclude enforcement actions 

under this part. 

(b) Inquiries regarding the technical 

requirements of the standards required 

by this part must be directed to the 

Office of Environment, Safety and 

Health, Office of Health (EH–5), U.S. 

Department of Energy, 1000 

Independence Avenue, SW., 

Washington, DC 20585. 

(c) Information regarding the general 

statement of enforcement policy in the 

appendix to this part must be directed 

to the Office of Environment, Safety and 

Health, Office of Price-Anderson 

Enforcement (EH–6), U.S. Department of 

Energy, 1000 Independence Avenue, 

SW., Washington, DC 20585. 

Subpart B—Program Requirements 

§ 851.10 General requirements. 

(a) With respect to a covered 

workplace for which a contractor is 

responsible, the contractor must: 

(1) Provide a place of employment 

that is free from recognized hazards that 

are causing or have the potential to 

cause death or serious physical harm to 

workers; and 

(2) Ensure that work is performed in 

accordance with: 

(i) All applicable requirements of this 

part; and 

(ii) With the worker safety and health 

program for that workplace. 

(b) The written worker safety and 

health program must describe how the 

contractor complies with the: 

(1) Requirements set forth in Subpart 

C of this part that are applicable to the 

hazards associated with the contractor’s 

scope of work; and 

(2) Any compliance order issued by 

the Secretary pursuant to § 851.4. 

§ 851.11 Development and approval of the 

worker safety and health program. 

(a) Preparation and submission of 

worker safety and health program. By 

February 26, 2007, contractors must 

submit to the appropriate Head of DOE 

Field Element for approval a written 

worker safety and health program that 

provides the methods for implementing 

the requirements of Subpart C of this 

part. 

(1) If a contractor is responsible for 

more than one covered workplace at a 

DOE site, the contractor must establish 

and maintain a single worker safety and 

health program for the covered 

workplaces for which the contractor is 

responsible. 

(2) If more than one contractor is 

responsible for covered workplaces, 

each contractor must: 

(i) Establish and maintain a worker 

safety and health program for the 

workplaces for which the contractor is 

responsible; and 

(ii) Coordinate with the other 

contractors responsible for work at the 

covered workplaces to ensure that there 

are clear roles, responsibilities and 

procedures to ensure the safety and 

health of workers at multi-contractor 

workplaces. 

(3) The worker safety and health 

program must describe how the 

contractor will: 

(i) Comply with the requirements set 

forth in Subpart C of this part that are 

applicable to the covered workplace, 

including the methods for implementing 

those requirements; and 

(ii) Integrate the requirements set 

forth in Subpart C of this part that are 

applicable to a covered workplace with 

other related site-specific worker 

protection activities and with the 

integrated safety management system. 

(b) DOE evaluation and approval. The 

Head of DOE Field Element must 

complete a review and provide written 

approval of the contractor’s worker 

safety and health program, within 90 

days of receiving the document. The 

worker safety and health program and 

any updates are deemed approved 90 

days after submission if they are not 

specifically approved or rejected by 

DOE earlier. 

(1) Beginning May 25, 2007, no work 

may be performed at a covered 

workplace unless an approved worker 

safety and health program is in place for 

the workplace. 

(2) Contractors must send a copy of 

the approved program to the Assistant 

Secretary for Environment, Safety and 

Health. 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6935 

(3) Contractors must furnish a copy of 

the approved worker safety and health 

program, upon written request, to the 

affected workers or their designated 

representatives. 

(c) Updates. (1) Contractors must 

submit an update of the worker safety 

and health program to the appropriate 

Head of DOE Field Element, for review 

and approval whenever a significant 

change or addition to the program is 

made, or a change in contractors occurs. 

(2) Contractors must submit annually 

to DOE either an updated worker safety 

and health program for approval or a 

letter stating that no changes are 

necessary in the currently approved 

worker safety and health program. 

(3) Contactors must incorporate in the 

worker safety and health program any 

changes, conditions, or workplace safety 

and health standards directed by DOE 

consistent with the requirements of this 

part and DEAR 970.5204–2, Laws, 

Regulations and DOE Directives 

(December, 2000) and associated 

contract clauses. 

(d) Labor Organizations. If a 

contractor employs or supervises 

workers who are represented for 

collective bargaining by a labor 

organization, the contractor must: 

(1) Give the labor organization timely 

notice of the development and 

implementation of the worker safety and 

health program and any updates thereto; 

and 

(2) Upon timely request, bargain 

concerning implementation of this part, 

consistent with the Federal labor laws. 

§ 851.12 Implementation. 

(a) Contractors must implement the 

requirements of this part. 

(b) Nothing in this part precludes a 

contractor from taking any additional 

protective action that is determined to 

be necessary to protect the safety and 

health of workers. 

§ 851.13 Compliance. 

(a) Contractors must achieve 

compliance with all the requirements of 

Subpart C of this part, and their 

approved worker safety and health 

program no later than May 25, 2007. 

Contractors may be required to comply 

contractually with the requirements of 

this rule before February 9, 2007. 

(b) In the event a contractor has 

established a written safety and health 

program, an Integrated Safety 

Management System (ISMS) description 

pursuant to the DEAR Clause, or an 

approved Work Smart Standards (WSS) 

process before the date of issuance of 

the final rule, the Contractor may use 

that program, description, or process as 

the worker safety and health program 

required by this part if the appropriate 

Head of the DOE Field Element 

approves such use on the basis of 

written documentation provided by the 

contractor that identifies the specific 

portions of the program, description, or 

process, including any additional 

requirements or implementation 

methods to be added to the existing 

program, description, or process, that 

satisfy the requirements of this part and 

that provide a workplace as safe and 

healthful as would be provided by the 

requirements of this part. 

(c) Nothing in this part shall be 

construed to limit or otherwise affect 

contractual obligations of a contractor to 

comply with contractual requirements 

that are not inconsistent with the 

requirements of this part. 

Subpart C—Specific Program 

Requirements 

§ 851.20 Management responsibilities and 

worker rights and responsibilities. 

(a) Management responsibilities. 

Contractors are responsible for the 

safety and health of their workforce and 

must ensure that contractor 

management at a covered workplace: 

(1) Establish written policy, goals, and 

objectives for the worker safety and 

health program; 

(2) Use qualified worker safety and 

health staff (e.g., a certified industrial 

hygienist, or safety professional) to 

direct and manage the program; 

(3) Assign worker safety and health 

program responsibilities, evaluate 

personnel performance, and hold 

personnel accountable for worker safety 

and health performance; 

(4) Provide mechanisms to involve 

workers and their elected 

representatives in the development of 

the worker safety and health program 

goals, objectives, and performance 

measures and in the identification and 

control of hazards in the workplace; 

(5) Provide workers with access to 

information relevant to the worker 

safety and health program; 

(6) Establish procedures for workers 

to report without reprisal job-related 

fatalities, injuries, illnesses, incidents, 

and hazards and make 

recommendations about appropriate 

ways to control those hazards; 

(7) Provide for prompt response to 

such reports and recommendations; 

(8) Provide for regular communication 

with workers about workplace safety 

and health matters; 

(9) Establish procedures to permit 

workers to stop work or decline to 

perform an assigned task because of a 

reasonable belief that the task poses an 

imminent risk of death, serious physical 

harm, or other serious hazard to 

workers, in circumstances where the 

workers believe there is insufficient 

time to utilize normal hazard reporting 

and abatement procedures; and 

(10) Inform workers of their rights and 

responsibility by appropriate means, 

including posting the DOE-designated 

Worker Protection Poster in the 

workplace where it is accessible to all 

workers. 

(b) Worker rights and responsibilities. 

Workers must comply with the 

requirements of this part, including the 

worker safety and health program, 

which are applicable to their own 

actions and conduct. Workers at a 

covered workplace have the right, 

without reprisal, to: 

(1) Participate in activities described 

in this section on official time; 

(2) Have access to: 

(i) DOE safety and health 

publications; 

(ii) The worker safety and health 

program for the covered workplace; 

(iii) The standards, controls, and 

procedures applicable to the covered 

workplace; 

(iv) The safety and health poster that 

informs the worker of relevant rights 

and responsibilities; 

(v) Limited information on any 

recordkeeping log (OSHA Form 300). 

Access is subject to Freedom of 

Information Act requirements and 

restrictions; and 

(vi) The DOE Form 5484.3 (the DOE 

equivalent to OSHA Form 301) that 

contains the employee’s name as the 

injured or ill worker; 

(3) Be notified when monitoring 

results indicate the worker was 

overexposed to hazardous materials; 

(4) Observe monitoring or measuring 

of hazardous agents and have the results 

of their own exposure monitoring; 

(5) Have a representative authorized 

by employees accompany the Director 

or his authorized personnel during the 

physical inspection of the workplace for 

the purpose of aiding the inspection. 

When no authorized employee 

representative is available, the Director 

or his authorized representative must 

consult, as appropriate, with employees 

on matters of worker safety and health; 

(6) Request and receive results of 

inspections and accident investigations; 

(7) Express concerns related to worker 

safety and health; 

(8) Decline to perform an assigned 

task because of a reasonable belief that, 

under the circumstances, the task poses 

an imminent risk of death or serious 

physical harm to the worker coupled 

with a reasonable belief that there is 

insufficient time to seek effective 

redress through normal hazard reporting 

and abatement procedures; and 


cprice-sewell on PROD1PC66 with RULES2
6936 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

(9) Stop work when the worker 

discovers employee exposures to 

imminently dangerous conditions or 

other serious hazards; provided that any 

stop work authority must be exercised 

in a justifiable and responsible manner 

in accordance with procedures 

established in the approved worker 

safety and health program. 

§ 851.21 Hazard identification and 

assessment. 

(a) Contractors must establish 

procedures to identify existing and 

potential workplace hazards and assess 

the risk of associated workers injury and 

illness. Procedures must include 

methods to: 

(1) Assess worker exposure to 

chemical, physical, biological, or safety 

workplace hazards through appropriate 

workplace monitoring; 

(2) Document assessment for 

chemical, physical, biological, and 

safety workplace hazards using 

recognized exposure assessment and 

testing methodologies and using of 

accredited and certified laboratories; 

(3) Record observations, testing and 

monitoring results; 

(4) Analyze designs of new facilities 

and modifications to existing facilities 

and equipment for potential workplace 

hazards; 

(5) Evaluate operations, procedures, 

and facilities to identify workplace 

hazards; 

(6) Perform routine job activity-level 

hazard analyses; 

(7) Review site safety and health 

experience information; and 

(8) Consider interaction between 

workplace hazards and other hazards 

such as radiological hazards. 

(b) Contractors must submit to the 

Head of DOE Field Element a list of 

closure facility hazards and the 

established controls within 90 days after 

identifying such hazards. The Head of 

DOE Field Element, with concurrence 

by the Cognizant Secretarial Officer, has 

90 days to accept the closure facility 

hazard controls or direct additional 

actions to either: 

(1) Achieve technical compliance; or 

(2) Provide additional controls to 

protect the workers. 

(c) Contractors must perform the 

activities identified in paragraph (a) of 

this section, initially to obtain baseline 

information and as often thereafter as 

necessary to ensure compliance with the 

requirements in this Subpart. 

§ 851.22 Hazard prevention and 

abatement. 

(a) Contractors must establish and 

implement a hazard prevention and 

abatement process to ensure that all 

identified and potential hazards are 

prevented or abated in a timely manner. 

(1) For hazards identified either in the 

facility design or during the 

development of procedures, controls 

must be incorporated in the appropriate 

facility design or procedure. 

(2) For existing hazards identified in 

the workplace, contractors must: 

(i) Prioritize and implement 

abatement actions according to the risk 

to workers; 

(ii) Implement interim protective 

measures pending final abatement; and 

(iii) Protect workers from dangerous 

safety and health conditions; 

(b) Contractors must select hazard 

controls based on the following 

hierarchy: 

(1) Elimination or substitution of the 

hazards where feasible and appropriate; 

(2) Engineering controls where 

feasible and appropriate; 

(3) Work practices and administrative 

controls that limit worker exposures; 

and 

(4) Personal protective equipment. 

(c) Contractors must address hazards 

when selecting or purchasing 

equipment, products, and services. 

§ 851.23 Safety and health standards. 

(a) Contractors must comply with the 

following safety and health standards 

that are applicable to the hazards at 

their covered workplace: 

(1) Title 10 Code of Federal 

Regulations (CFR) 850, ‘‘Chronic 

Beryllium Disease Prevention Program.’’

(2) Title 29 CFR, Parts 1904.4 through 

1904.11, 1904.29 through 1904.33; 

1904.44, and 1904.46, ‘‘Recording and 

Reporting Occupational Injuries and 

Illnesses.’’

(3) Title 29 CFR, Part 1910, 

‘‘Occupational Safety and Health 

Standards,’’ excluding 29 CFR 

1910.1096, ‘‘Ionizing Radiation.’’

(4) Title 29 CFR, Part 1915, ‘‘Shipyard 

Employment.’’

(5) Title 29 CFR, Part 1917, ‘‘Marine 

Terminals.’’

(6) Title 29 CFR, Part 1918, ‘‘Safety 

and Health Regulations for 

Longshoring.’’

(7) Title 29 CFR, Part 1926, ‘‘Safety 

and Health Regulations for 

Construction.’’

(8) Title 29 CFR, Part 1928, 

‘‘Occupational Safety and Health 

Standards for Agriculture.’’

(9) American Conference of 

Governmental Industrial Hygienists 

(ACGIH), ‘‘Threshold Limit Values for 

Chemical Substances and Physical 

Agents and Biological Exposure 

Indices,’’ (2005) (incorporated by 

reference, see § 851.27) when the 

ACGIH Threshold Limit Values (TLVs) 

are lower (more protective) than 

permissible exposure limits in 29 CFR 

1910. When the ACGIH TLVs are used 

as exposure limits, contractors must 

nonetheless comply with the other 

provisions of any applicable expanded 

health standard found in 29 CFR 1910. 

(10) American National Standards 

Institute (ANSI) Z88.2, ‘‘American 

National Standard for Respiratory 

Protection,’’ (1992) (incorporated by 

reference, see § 851.27). 

(11) ANSI Z136.1, ‘‘Safe Use of 

Lasers,’’ (2000) (incorporated by 

reference, see § 851.27). 

(12) ANSI Z49.1, ‘‘Safety in Welding, 

Cutting and Allied Processes,’’ sections 

4.3 and E4.3 (1999) (incorporated by 

reference, see § 851.27). 

(13) National Fire Protection 

Association (NFPA) 70, ‘‘National 

Electrical Code,’’ (2005) (incorporated 

by reference, see § 851.27). 

(14) NFPA 70E, ‘‘Standard for 

Electrical Safety in the Workplace,’’

(2004) (incorporated by reference, see 

§ 851.27). 

(b) Nothing in this part must be 

construed as relieving a contractor from 

complying with any additional specific 

safety and health requirement that it 

determines to be necessary to protect 

the safety and health of workers. 

§ 851.24 Functional areas. 

(a) Contractors must have a structured 

approach to their worker safety and 

health program which at a minimum, 

include provisions for the following 

applicable functional areas in their 

worker safety and health program: 

construction safety; fire protection; 

firearms safety; explosives safety; 

pressure safety; electrical safety; 

industrial hygiene; occupational 

medicine; biological safety; and motor 

vehicle safety. 

(b) In implementing the structured 

approach required by paragraph (a) of 

this section, contractors must comply 

with the applicable standards and 

provisions in Appendix A of this part, 

entitled ‘‘Worker Safety and Health 

Functional Areas.’’

§ 851.25 Training and information. 

(a) Contractors must develop and 

implement a worker safety and health 

training and information program to 

ensure that all workers exposed or 

potentially exposed to hazards are 

provided with the training and 

information on that hazard in order to 

perform their duties in a safe and 

healthful manner. 

(b) The contractor must provide: 

(1) Training and information for new 

workers, before or at the time of initial 

assignment to a job involving exposure 

to a hazard; 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6937 

(2) Periodic training as often as 

necessary to ensure that workers are 

adequately trained and informed; and 

(3) Additional training when safety 

and health information or a change in 

workplace conditions indicates that a 

new or increased hazard exists. 

(c) Contractors must provide training 

and information to workers who have 

worker safety and health program 

responsibilities that is necessary for 

them to carry out those responsibilities. 

§ 851.26 Recordkeeping and reporting. 

(a) Recordkeeping. Contractors must: 

(1) Establish and maintain complete 

and accurate records of all hazard 

inventory information, hazard 

assessments, exposure measurements, 

and exposure controls. 

(2) Ensure that the work-related 

injuries and illnesses of its workers and 

subcontractor workers are recorded and 

reported accurately and consistent with 

DOE Manual 231.1–1A, Environment, 

Safety and Health Reporting Manual, 

September 9, 2004 (incorporated by 

reference, see § 851.27). 

(3) Comply with the applicable 

occupational injury and illness 

recordkeeping and reporting workplace 

safety and health standards in § 851.23 

at their site, unless otherwise directed 

in DOE Manual 231.1–1A. 

(4) Not conceal nor destroy any 

information concerning non-compliance 

or potential noncompliance with the 

requirements of this part. 

(b) Reporting and investigation. 

Contractors must: 

(1) Report and investigate accidents, 

injuries and illness; and 

(2) Analyze related data for trends and 

lessons learned (reference DOE Order 

225.1A, Accident Investigations, 

November 26, 1997). 

§ 851.27 Reference sources. 

(a) Materials incorporated by 

reference. (1) General. The following 

standards which are not otherwise set 

forth in part 851 are incorporated by 

reference and made a part of part 851. 

The standards listed in this section have 

been approved for incorporation by 

reference by the Director of the Federal 

Register in accordance with 5 U.S.C. 

552(a) and 1 CFR part 51. 

(2) Availability of standards. The 

standards incorporated by reference are 

available for inspection at: 

(i) National Archives and Records 

Administration (NARA). For more 

information on the availability of this 

material at NARA, call 202–741–6030, 

or go to: http://www.archives.gov/ 

federal_register/ 

code_of_federal_regulations/ 

ibr_locations.html 

(ii) U.S. Department of Energy, Office 

of Environment, Safety and Health, 

Forrestal Building, 1000 Independence 

Ave., SW., Washington, DC 20585. 

(iii) American National Standards 

Institute Headquarters, 25 West 43rd 

Street, New York, NY 10036. Telephone 

number: 212–642–4980, or go to: 

http://www.ansi.org. 

(iv) National Fire Protection 

Association, 1 Batterymarch Park, 

Quincy, MA 02169. Telephone: 617 

770–3000, or go to: http://www.nfpa.org. 

(v) American Conference of 

Governmental Industrial Hygienist 

(ACGIH), 1330 Kemper Meadow Drive, 

Cincinnati, OH 45240. Telephone 

number 513–742–2020, or go to: 

http://www.acgih.org. 

(vi) American Society of Mechanical 

Engineers (ASME), P.O. Box 2300 

Fairfield, NJ 07007. Telephone: 

800–843–2763, or got to: 

http://www.asme.org. 

(b) List of standards incorporated by 

reference. (1) American National 

Standards Institute (ANSI) Z88.2, 

‘‘American National Standard for 

Respiratory Protection,’’ (1992). 

(2) ANSI Z136.1, ‘‘Safe Use of Lasers,’’

(2000). 

(3) ANSI Z49.1, ‘‘Safety in Welding, 

Cutting and Allied Processes,’’ sections 

4.3 and E4.3, (1999). 

(4) National Fire Protection 

Association (NFPA) 70, ‘‘National 

Electrical Code,’’ (2005). 

(5) NFPA 70E, ‘‘Standard for 

Electrical Safety in the Workplace,’’

(2004). 

(6) American Conference of 

Governmental Industrial Hygienists, 

‘‘Threshold Limit Values for Chemical 

Substances and Physical Agents and 

Biological Exposure Indices,’’ (2005). 

(7) American Society of Mechanical 

Engineers (ASME) Boilers and Pressure 

Vessel Code, sections I through XII 

including applicable Code Cases, (2004). 

(8) ASME B31 (ASME Code for 

Pressure Piping) as follows: 

(i) B31.1—2001—Power Piping, and 

B31.1a—2002—Addenda to ASME 

B31.1—2001; 

(ii) B31.2—1968—Fuel Gas Piping; 

(iii) B31.3—2002—Process Piping; 

(iv) B31.4—2002—Pipeline 

Transportation Systems for Liquid 

Hydrocarbons and Other Liquids; 

(v) B31.5—2001—Refrigeration Piping 

and Heat Transfer Components, and 

B31.5a—2004, Addenda to ASME 

B31.5—2001; 

(vi) B31.8—2003—Gas Transmission 

and Distribution Piping Systems; 

(vii) B31.8S—2001—Managing 

System Integrity of Gas Pipelines; 

(viii) B31.9—1996—Building Services 

Piping; 

(ix) B31.11—2002—Slurry 

Transportation Piping Systems; and 

(x) B31G—1991—Manual for 

Determining Remaining Strength of 

Corroded Pipelines. 

(9) DOE Manual 231.1–1A, 

Environment, Safety and Health 

Reporting Manual, September 9, 2004. 

(10) DOE Manual 440.1–1A, DOE 

Explosives Safety Manual, Contractor 

Requirements Document (Attachment 

2), January 9, 2006. 

Subpart D—Variances 

§ 851.30 Consideration of variances. 

(a) Variances shall be granted by the 

Under Secretary after considering the 

recommendation of the Assistant 

Secretary for Environment, Safety and 

Health. The authority to grant a variance 

cannot be delegated. 

(b) The application must satisfy the 

requirements for applications specified 

in § 851.31. 

§ 851.31 Variance process. 

(a) Application. Contractors desiring a 

variance from a safety and health 

standard, or portion thereof, may submit 

a written application containing the 

information in paragraphs (c) and (d) of 

this section to the appropriate CSO. 

(1) The CSO may forward the 

application to the Assistant Secretary 

for Environment, Safety and Health. 

(2) If the CSO does not forward the 

application to the Assistant Secretary 

for Environment, Safety and Health, the 

CSO must return the application to the 

contractor with a written statement 

explaining why the application was not 

forwarded. 

(3) Upon receipt of an application 

from a CSO, the Assistant Secretary for 

Environment, Safety and Health must 

review the application for a variance 

and make a written recommendation to: 

(i) Approve the application; 

(ii) Approve the application with 

conditions; or 

(iii) Deny the application. 

(b) Defective applications. If an 

application submitted pursuant to 

§ 851.31(a) is determined by the 

Assistant Secretary for Environment, 

Safety and Health to be incomplete, the 

Assistant Secretary may: 

(1) Return the application to the 

contractor with a written explanation of 

what information is needed to permit 

consideration of the application; or 

(2) Request the contractor to provide 

necessary information. 

(c) Content. All variance applications 

submitted pursuant to paragraph (a) of 

this section must include: 

(1) The name and address of the 

contractor; 


cprice-sewell on PROD1PC66 with RULES2
6938 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

(2) The address of the DOE site or 

sites involved; 

(3) A specification of the standard, or 

portion thereof, from which the 

contractor seeks a variance; 

(4) A description of the steps that the 

contractor has taken to inform the 

affected workers of the application, 

which must include giving a copy 

thereof to their authorized 

representative, posting a statement, 

giving a summary of the application and 

specifying where a copy may be 

examined at the place or places where 

notices to workers are normally posted; 

and 

(5) A description of how affected 

workers have been informed of their 

right to petition the Assistant Secretary 

for Environment, Safety and Health or 

designee for a conference; and 

(6) Any requests for a conference, as 

provided in § 851.34. 

(d) Types of variances. Contractors 

may apply for the following types of 

variances: 

(1) Temporary variance. Applications 

for a temporary variance pursuant to 

paragraph (a) of this section must be 

submitted at least 30 days before the 

effective date of a new safety and health 

standard and, in addition to the content 

required by paragraph (b) of this section, 

must include: 

(i) A statement by the contractor 

explaining the contractor is unable to 

comply with the standard or portion 

thereof by its effective date and a 

detailed statement of the factual basis 

and representations of qualified persons 

that support the contractor’s statement; 

(ii) A statement of the steps the 

contractor has taken and plans to take, 

with specific dates if appropriate, to 

protect workers against the hazard 

covered by the standard; 

(iii) A statement of when the 

contractor expects to be able to comply 

with the standard and of what steps the 

contractor has taken and plans to take, 

with specific dates if appropriate, to 

come into compliance with the 

standard; 

(iv) A statement of the facts the 

contractor would show to establish that: 

(A) The contractor is unable to 

comply with the standard by its 

effective date because of unavailability 

of professional or technical personnel or 

materials and equipment needed to 

come into compliance with the standard 

or because necessary construction or 

alteration of facilities cannot be 

completed by the effective date; 

(B) The contractor is taking all 

available steps to safeguard the workers 

against the hazards covered by the 

standard; and 

(C) The contractor has an effective 

program for coming into compliance 

with the standard as quickly as 

practicable. 

(2) Permanent variance. An 

application submitted for a permanent 

variance pursuant to paragraph (a) of 

this section must, in addition to the 

content required in paragraph (b) of this 

section, include: 

(i) A description of the conditions, 

practices, means, methods, operations, 

or processes used or proposed to be 

used by the contractor; and 

(ii) A statement showing how the 

conditions, practices, means, methods, 

operations, or processes used or 

proposed to be used would provide 

workers a place of employment which is 

as safe and healthful as would result 

from compliance with the standard from 

which a variance is sought. 

(3) National defense variance. (i) An 

application submitted for a national 

defense variance pursuant to paragraph 

(a) of this section must, in addition to 

the content required in paragraph (b) of 

this section, include: 

(A) A statement by the contractor 

showing that the variance sought is 

necessary to avoid serious impairment 

of national defense; and 

(B) A statement showing how the 

conditions, practices, means, methods, 

operations, or processes used or 

proposed to be used would provide 

workers a safe and healthful place of 

employment in a manner that, to the 

extent practical taking into account the 

national defense mission, is consistent 

with the standard from which a variance 

is sought. 

(ii) A national defense variance may 

be granted for a maximum of six 

months, unless there is a showing that 

a longer period is essential to carrying 

out a national defense mission. 

§ 851.32 Action on variance requests. 

(a) Procedures for an approval 

recommendation. (1) If the Assistant 

Secretary for Environment, Safety and 

Health recommends approval of a 

variance application, the Assistant 

Secretary must forward to the Under 

Secretary the variance application and 

the approval recommendation including 

a discussion of the basis for the 

recommendation and any terms and 

conditions proposed for inclusion as 

part of the approval. 

(2) If the Under Secretary approves a 

variance, the Under Secretary must 

notify the Assistant Secretary for 

Environment, Safety and Health who 

must notify the Office of Price-Anderson 

Enforcement and the CSO who must 

promptly notify the contractor. 

(3) The notification must include a 

reference to the safety and health 

standard or portion thereof that is the 

subject of the application, a detailed 

description of the variance, the basis for 

the approval and any terms and 

conditions of the approval. 

(4) If the Under Secretary denies a 

variance, the Under Secretary must 

notify the Assistant Secretary for 

Environment, Safety and Health who 

must notify the appropriate CSO who 

must notify the contractor. 

(5) The notification must include the 

grounds for denial. 

(b) Approval criteria. A variance may 

be granted if the variance: 

(1) Is consistent with section 3173 of 

the NDAA; 

(2) Does not present an undue risk to 

worker safety and health; 

(3) Is warranted under the 

circumstances; 

(4) Satisfies the requirements of 

§ 851.31 of this part for the type of 

variance requested. 

(c) Procedures for a denial 

recommendation. (1) If the Assistant 

Secretary for Environment, Safety and 

Health recommends denial of a variance 

application, the Assistant Secretary 

must notify the CSO of the denial 

recommendation and the grounds for 

the denial recommendation. 

(2) Upon receipt of a denial 

recommendation, the CSO may: 

(i) Notify the contractor that the 

variance application is denied on the 

grounds cited by the Assistant 

Secretary; or 

(ii) Forward to the Under Secretary 

the variance application, the denial 

recommendation, the grounds for the 

denial recommendation, and any 

information that supports an action 

different than that recommended by the 

Assistant Secretary. 

(3) If the CSO forwards the 

application to the Under Secretary, the 

procedures in paragraphs (a)(2), (3), (4) 

and (5) of this section apply. 

(4) A denial of an application 

pursuant to this section shall be without 

prejudice to submitting of another 

application 

(d) Grounds for denial of a variance. 

A variance may be denied if: 

(1) Enforcement of the violation 

would be handled as a de minimis 

violation (defined as a deviation from 

the requirement of a standard that has 

no direct or immediate relationship to 

safety or health, and no enforcement 

action will be taken); 

(2) When a variance is not necessary 

for the conditions, practice, means, 

methods, operations, or processes used 

or proposed to be used by contractor; 

(3) Contractor does not demonstrate 

that the approval criteria are met. 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6939 

§ 851.33 Terms and conditions. 

A variance may contain appropriate 

terms and conditions including, but not 

limited to, provisions that: 

(a) Limit its duration; 

(b) Require alternative action; 

(c) Require partial compliance; and 

(d) Establish a schedule for full or 

partial compliance. 

§ 851.34 Requests for conferences. 

(a) Within the time allotted by a 

notice of the filling of an application, 

any affected contractor or worker may 

file with the Assistant Secretary for 

Environment, Safety and Health a 

request for a conference on the 

application for a variance. 

(b) A request for a conference filed 

pursuant to paragraph (a) of this section 

must include: 

(1) A concise statement explaining 

how the contractor or worker would be 

affected by the variance applied for, 

including relevant facts; 

(2) A specification of any statement or 

representation in the application which 

is denied, and a concise summary of the 

evidence that would be adduced in 

support of each denial; and 

(3) Any other views or arguments on 

any issue of fact or law presented. 

(c) The Assistant Secretary for 

Environment, Safety and Health, or 

designee, must respond to a request 

within fifteen days and, if the request is 

granted, indicate the time and place of 

the conference and the DOE participants 

in the conference. 

Subpart E—Enforcement Process 

§ 851.40 Investigations and inspections. 

(a) The Director may initiate and 

conduct investigations and inspections 

relating to the scope, nature and extent 

of compliance by a contractor with the 

requirements of this part and take such 

action as the Director deems necessary 

and appropriate to the conduct of the 

investigation or inspection. DOE 

Enforcement Officers have the right to 

enter work areas without delay to the 

extent practicable, to conduct 

inspections under this subpart. 

(b) Contractors must fully cooperate 

with the Director during all phases of 

the enforcement process and provide 

complete and accurate records and 

documentation as requested by the 

Director during investigation or 

inspection activities. 

(c) Any worker or worker 

representative may request that the 

Director initiate an investigation or 

inspection pursuant to paragraph (a) of 

this section. A request for an 

investigation or inspection must 

describe the subject matter or activity to 

be investigated or inspected as fully as 

possible and include supporting 

documentation and information. The 

worker or worker representative has the 

right to remain anonymous upon filing 

a request for an investigation or 

inspection. 

(d) The Director must inform any 

contractor that is the subject of an 

investigation or inspection in writing at 

the initiation of the investigation or 

inspection and must inform the 

contractor of the general purpose of the 

investigation or inspection. 

(e) DOE shall not disclose information 

or documents that are obtained during 

any investigation or inspection unless 

the Director directs or authorizes the 

public disclosure of the investigation. 

Prior to such authorization, DOE must 

determine that disclosure is not 

precluded by the Freedom of 

Information Act, 5 U.S.C. 552 and part 

1004 of this title. Once disclosed 

pursuant to the Director’s authorization, 

the information or documents are a 

matter of public record. 

(f) A request for confidential 

treatment of information for purposes of 

the Freedom of Information Act does 

not prevent disclosure by the Director if 

the Director determines disclosure to be 

in the public interest and otherwise 

permitted or required by law. 

(g) During the course of an 

investigation or inspection, any 

contractor may submit any document, 

statement of facts, or memorandum of 

law for the purpose of explaining the 

contractor’s position or furnish 

information which the contractor 

considers relevant to a matter or activity 

under investigation or inspection. 

(h) The Director may convene an 

informal conference to discuss any 

situation that might be a violation of a 

requirement of this part, its significance 

and cause, any corrective action taken 

or not taken by the contractor, any 

mitigating or aggravating circumstances, 

and any other information. A conference 

is not normally open to the public and 

DOE does not make a transcript of the 

conference. The Director may compel a 

contractor to attend the conference. 

(i) If facts disclosed by an 

investigation or inspection indicate that 

further action is unnecessary or 

unwarranted, the Director may close the 

investigation without prejudice. 

(j) The Director may issue 

enforcement letters that communicate 

DOE’s expectations with respect to any 

aspect of the requirements of this part, 

including identification and reporting of 

issues, corrective actions, and 

implementation of the contractor’s 

safety and health program; provided 

that an enforcement letter may not 

create the basis for any legally 

enforceable requirement pursuant to 

this part. 

(k) The Director may sign, issue and 

serve subpoenas. 

§ 851.41 Settlement. 

(a) DOE encourages settlement of a 

proceeding under this subpart at any 

time if the settlement is consistent with 

this part. The Director and a contractor 

may confer at any time concerning 

settlement. A settlement conference is 

not open to the public and DOE does 

not make a transcript of the conference. 

(b) Notwithstanding any other 

provision of this part, the Director may 

resolve any issues in an outstanding 

proceeding under this subpart with a 

consent order. 

(1) The Director and the contractor, or 

a duly authorized representative thereto, 

must sign the consent order and 

indicate agreement to the terms 

contained therein. 

(2) A contractor is not required to 

admit in a consent order that a 

requirement of this part has been 

violated. 

(3) DOE is not required to make a 

finding in a consent order that a 

contractor has violated a requirement of 

this part. 

(4) A consent order must set forth the 

relevant facts that form the basis for the 

order and what remedy, if any, is 

imposed. 

(5) A consent order shall constitute a 

final order. 

§ 851.42 Preliminary notice of violation. 

(a) Based on a determination by the 

Director that there is a reasonable basis 

to believe a contractor has violated or is 

continuing to violate a requirement of 

this part, the Director may issue a 

preliminary notice of violation (PNOV) 

to the contractor. 

(b) A PNOV must indicate: 

(1) The date, facts, and nature of each 

act or omission upon which each 

alleged violation is based; 

(2) The particular requirement 

involved in each alleged violation; 

(3) The proposed remedy for each 

alleged violation, including the amount 

of any civil penalty; and 

(4) The obligation of the contractor to 

submit a written reply to the Director 

within 30 calendar days of receipt of the 

PNOV. 

(c) A reply to a PNOV must contain 

a statement of all relevant facts 

pertaining to an alleged violation. 

(1) The reply must: 

(i) State any facts, explanations and 

arguments that support a denial of the 

alleged violation; 

(ii) Demonstrate any extenuating 

circumstances or other reason why a 


cprice-sewell on PROD1PC66 with RULES2
6940 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

proposed remedy should not be 

imposed or should be mitigated; 

(iii) Discuss the relevant authorities 

that support the position asserted, 

including rulings, regulations, 

interpretations, and previous decisions 

issued by DOE; and 

(iv) Furnish full and complete 

answers to any questions set forth in the 

preliminary notice. 

(2) Copies of all relevant documents 

must be submitted with the reply. 

(d) If a contractor fails to submit a 

written reply within 30 calendar days of 

receipt of a PNOV: 

(1) The contractor relinquishes any 

right to appeal any matter in the 

preliminary notice; and 

(2) The preliminary notice, including 

any proposed remedies therein, 

constitutes a final order. 

(e) A copy of the PNOV must be 

prominently posted, once final, at or 

near the location where the violation 

occurred until the violation is corrected. 

§ 851.43 Final notice of violation. 

(a) If a contractor submits a written 

reply within 30 calendar days of receipt 

of a preliminary notice of violation 

(PNOV), that presents a disagreement 

with any aspect of the PNOV and civil 

penalty, the Director must review the 

submitted reply and make a final 

determination whether the contractor 

violated or is continuing to violate a 

requirement of this part. 

(b) Based on a determination by the 

Director that a contractor has violated or 

is continuing to violate a requirement of 

this part, the Director may issue to the 

contractor a final notice of violation that 

states concisely the determined 

violation and any remedy, including the 

amount of any civil penalty imposed on 

the contractor. The final notice of 

violation must state that the contractor 

may petition the Office of Hearings and 

Appeals for review of the final notice in 

accordance with 10 CFR part 1003, 

subpart G. 

(c) If a contractor fails to submit a 

petition for review to the Office of 

Hearings and Appeals within 30 

calendar days of receipt of a final notice 

of violation pursuant to § 851.42: 

(1) The contractor relinquishes any 

right to appeal any matter in the final 

notice; and 

(2) The final notice, including any 

remedies therein, constitutes a final 

order. 

§ 851.44 Administrative appeal. 

(a) Any contractor that receives a final 

notice of violation may petition the 

Office of Hearings and Appeals for 

review of the final notice in accordance 

with part 1003, subpart G of this title, 

within 30 calendar days from receipt of 

the final notice. 

(b) In order to exhaust administrative 

remedies with respect to a final notice 

of violation, the contractor must petition 

the Office of Hearings and Appeals for 

review in accordance with paragraph (a) 

of this section. 

§ 851.45 Direction to NNSA contractors. 

(a) Notwithstanding any other 

provision of this part, the NNSA 

Administrator, rather than the Director, 

signs, issues and serves the following 

actions that direct NNSA contractors: 

(1) Subpoenas; 

(2) Orders to compel attendance; 

(3) Disclosures of information or 

documents obtained during an 

investigation or inspection; 

(4) Preliminary notices of violations; 

and 

(5) Final notices of violations. 

(b) The NNSA Administrator shall act 

after consideration of the Director’s 

recommendation. 

Appendix A to Part 851—Worker 

Safety and Health Functional Areas 

This appendix establishes the mandatory 

requirements for implementing the 

applicable functional areas required by 

§ 851.24. 

1. Construction Safety 

(a) For each separately definable 

construction activity (e.g., excavations, 

foundations, structural steel, roofing) the 

construction contractor must: 

(1) Prepare and have approved by the 

construction manager an activity hazard 

analysis prior to commencement of affected 

work. Such analyses must: 

(i) Identify foreseeable hazards and 

planned protective measures; 

(ii) Address further hazards revealed by 

supplemental site information (e.g., site 

characterization data, as-built drawings) 

provided by the construction manager; 

(iii) Provide drawings and/or other 

documentation of protective measures for 

which applicable Occupational Safety and 

Health Administration (OSHA) standards 

require preparation by a Professional 

Engineer or other qualified professional, and 

(iv) Identify competent persons required 

for workplace inspections of the construction 

activity, where required by OSHA standards. 

(2) Ensure workers are aware of foreseeable 

hazards and the protective measures 

described within the activity analysis prior to 

beginning work on the affected activity. 

(3) Require that workers acknowledge 

being informed of the hazards and protective 

measures associated with assigned work 

activities. Those workers failing to utilize 

appropriate protective measures must be 

subject to the construction contractor’s 

disciplinary process. 

(b) During periods of active construction 

(i.e., excluding weekends, weather delays, or 

other periods of work inactivity), the 

construction contractor must have a 

designated representative on the construction 

worksite who is knowledgeable of the 

project’s hazards and has full authority to act 

on behalf of the construction contractor. The 

contractor’s designated representative must 

make frequent and regular inspections of the 

construction worksite to identify and correct 

any instances of noncompliance with project 

safety and health requirements. 

(c) Workers must be instructed to report to 

the construction contractor’s designated 

representative, hazards not previously 

identified or evaluated. If immediate 

corrective action is not possible or the hazard 

falls outside of project scope, the 

construction contractor must immediately 

notify affected workers, post appropriate 

warning signs, implement needed interim 

control measures, and notify the construction 

manager of the action taken. The contractor 

or the designated representative must stop 

work in the affected area until appropriate 

protective measures are established. 

(d) The construction contractor must 

prepare a written construction project safety 

and health plan to implement the 

requirements of this section and obtain 

approval of the plan by the construction 

manager prior to commencement of any work 

covered by the plan. In the plan, the 

contractor must designate the individual(s) 

responsible for on-site implementation of the 

plan, specify qualifications for those 

individuals, and provide a list of those 

project activities for which subsequent 

hazard analyses are to be performed. The 

level of detail within the construction project 

safety and health plan should be 

commensurate with the size, complexity and 

risk level of the construction project. The 

content of this plan need not duplicate those 

provisions that were previously submitted 

and approved as required by § 851.11. 

2. Fire Protection 

(a) Contractors must implement a 

comprehensive fire safety and emergency 

response program to protect workers 

commensurate with the nature of the work 

that is performed. This includes appropriate 

facility and site-wide fire protection, fire 

alarm notification and egress features, and 

access to a fully staffed, trained, and 

equipped emergency response organization 

that is capable of responding in a timely and 

effective manner to site emergencies. 

(b) An acceptable fire protection program 

must include those fire protection criteria 

and procedures, analyses, hardware and 

systems, apparatus and equipment, and 

personnel that would comprehensively 

ensure that the objective in paragraph 2(a) of 

this section is met. This includes meeting 

applicable building codes and National Fire 

Protection Association codes and standards. 

3. Explosives Safety 

(a) Contractors responsible for the use of 

explosive materials must establish and 

implement a comprehensive explosives 

safety program. 

(b) Contractors must comply with the 

policy and requirements specified in the DOE 

Manual 440.1–1A, DOE Explosives Safety 

Manual, Contractor Requirements Document 

(Attachment 2), January 9, 2006 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6941 

(incorporated by reference, see § 851.27). A 

Contractor may choose a successor version, if 

approved by DOE. 

(c) Contractors must determine the 

applicability of the explosives safety 

directive requirements to research and 

development laboratory type operations 

consistent with the DOE level of protection 

criteria described in the explosives safety 

directive. 

4. Pressure Safety 

(a) Contractors must establish safety 

policies and procedures to ensure that 

pressure systems are designed, fabricated, 

tested, inspected, maintained, repaired, and 

operated by trained and qualified personnel 

in accordance with applicable and sound 

engineering principles. 

(b) Contractors must ensure that all 

pressure vessels, boilers, air receivers, and 

supporting piping systems conform to: 

(1) The applicable American Society of 

Mechanical Engineers (ASME) Boiler and 

Pressure Vessel Code (2004); sections I 

through section XII including applicable 

Code Cases (incorporated by reference, see 

§ 851.27) 

(2) The applicable ASME B31 (Code for 

Pressure Piping) standards as indicated 

below; and or as indicated in paragraph (b)(3) 

of this section: 

(i) B31.1—2001—Power Piping, and 

B31.1a—2002—Addenda to ASME B31.1—

2001 (incorporated by reference, see 

§ 851.27); 

(ii) B31.2—1968—Fuel Gas Piping 

(incorporated by reference, see § 851.27); 

(iii) B31.3—2002—Process Piping 

(incorporated by reference, see § 851.27); 

(iv) B31.4—2002—Pipeline Transportation 

Systems for Liquid Hydrocarbons and Other 

Liquids (incorporated by reference, see 

§ 851.27); 

(v) B31.5—2001—Refrigeration Piping and 

Heat Transfer Components, and B31.5a—

2004, Addenda to ASME B31.5—2001 

(incorporated by reference, see § 851.27); 

(vi) B31.8—2003—Gas Transmission and 

Distribution Piping Systems (incorporated by 

reference, see § 851.27); 

(vii) B31.8S—2001—Managing System 

Integrity of Gas Pipelines (incorporated by 

reference, see § 851.27); 

(viii) B31.9—1996—Building Services 

Piping (incorporated by reference, see 

§ 851.27); 

(ix) B31.11—2002—Slurry Transportation 

Piping Systems (incorporated by reference, 

see § 851.27); and 

(x) B31G—1991—Manual for Determining 

Remaining Strength of Corroded Pipelines 

(incorporated by reference, see § 851.27). 

(3) The strictest applicable state and local 

codes. 

(c) When national consensus codes are not 

applicable (because of pressure range, vessel 

geometry, use of special materials, etc.), 

contractors must implement measures to 

provide equivalent protection and ensure a 

level of safety greater than or equal to the 

level of protection afforded by the ASME or 

applicable state or local code. Measures must 

include the following: 

(1) Design drawings, sketches, and 

calculations must be reviewed and approved 

by a qualified independent design 

professional (i.e., professional engineer). 

Documented organizational peer review is 

acceptable. 

(2) Qualified personnel must be used to 

perform examinations and inspections of 

materials, in-process fabrications, nondestructive tests, and acceptance test. 

(3) Documentation, traceability, and 

accountability must be maintained for each 

pressure vessel or system, including 

descriptions of design, pressure conditions, 

testing, inspection, operation, repair, and 

maintenance. 

5. Firearms Safety 

(a) A contractor engaged in DOE activities 

involving the use of firearms must establish 

firearms safety policies and procedures for 

security operations, and training to ensure 

proper accident prevention controls are in 

place. 

(1) Written procedures must address 

firearms safety, engineering and 

administrative controls, as well as personal 

protective equipment requirements. 

(2) As a minimum, procedures must be 

established for: 

(i) Storage, handling, cleaning, inventory, 

and maintenance of firearms and associated 

ammunition; 

(ii) Activities such as loading, unloading, 

and exchanging firearms. These procedures 

must address use of bullet containment 

devices and those techniques to be used 

when no bullet containment device is 

available; 

(iii) Use and storage of pyrotechnics, 

explosives, and/or explosive projectiles; 

(iv) Handling misfires, duds, and 

unauthorized discharges; 

(v) Live fire training, qualification, and 

evaluation activities; 

(vi) Training and exercises using 

engagement simulation systems; 

(vii) Medical response at firearms training 

facilities; and 

(viii) Use of firing ranges by personnel 

other than DOE or DOE contractor protective 

forces personnel. 

(b) Contractors must ensure that personnel 

responsible for the direction and operation of 

the firearms safety program are professionally 

qualified and have sufficient time and 

authority to implement the procedures under 

this section. 

(c) Contractors must ensure that firearms 

instructors and armorers have been certified 

by the Safeguards and Security National 

Training Center to conduct the level of 

activity provided. Personnel must not be 

allowed to conduct activities for which they 

have not been certified. 

(d) Contractors must conduct formal 

appraisals assessing implementation of 

procedures, personnel responsibilities, and 

duty assignments to ensure overall policy 

objectives and performance criteria are being 

met by qualified personnel. 

(e) Contractors must implement procedures 

related to firearms training, live fire range 

safety, qualification, and evaluation 

activities, including procedures requiring 

that: 

(1) Personnel must successfully complete 

initial firearms safety training before being 

issued any firearms. Authorization to remain 

in armed status will continue only if the 

employee demonstrates the technical and 

practical knowledge of firearms safety semiannually; 

(2) Authorized armed personnel must 

demonstrate through documented limited 

scope performance tests both technical and 

practical knowledge of firearms handling and 

safety on a semi-annual basis; 

(3) All firearms training lesson plans must 

incorporate safety for all aspects of firearms 

training task performance standards. The 

lesson plans must follow the standards set 

forth by the Safeguards and Security Central 

Training Academy’s standard training 

programs; 

(4) Firearms safety briefings must 

immediately precede training, qualifications, 

and evaluation activities involving live fire 

and/or engagement simulation systems; 

(5) A safety analysis approved by the Head 

of DOE Field Element must be developed for 

the facilities and operation of each live fire 

range prior to implementation of any new 

training, qualification, or evaluation activity. 

Results of these analyses must be 

incorporated into procedures, lesson plans, 

exercise plans, and limited scope 

performance tests; 

(6) Firing range safety procedures must be 

conspicuously posted at all range facilities; 

and 

(7) Live fire ranges, approved by the Head 

of DOE Field Element, must be properly sited 

to protect personnel on the range, as well as 

personnel and property not associated with 

the range. 

(f) Contractors must ensure that the 

transportation, handling, placarding, and 

storage of munitions conform to the 

applicable DOE requirements. 

6. Industrial Hygiene 

Contractors must implement a 

comprehensive industrial hygiene program 

that includes at least the following elements: 

(a) Initial or baseline surveys and periodic 

resurveys and/or exposure monitoring as 

appropriate of all work areas or operations to 

identify and evaluate potential worker health 

risks; 

(b) Coordination with planning and design 

personnel to anticipate and control health 

hazards that proposed facilities and 

operations would introduce; 

(c) Coordination with cognizant 

occupational medical, environmental, health 

physics, and work planning professionals; 

(d) Policies and procedures to mitigate the 

risk from identified and potential 

occupational carcinogens; 

(e) Professionally and technically qualified 

industrial hygienists to manage and 

implement the industrial hygiene program; 

and 

(f) Use of respiratory protection equipment 

tested under the DOE Respirator Acceptance 

Program for Supplied-air Suits (DOETechnical Standard-1167–2003) when 

National Institute for Occupational Safety 

and Health-approved respiratory protection 

does not exist for DOE tasks that require such 

equipment. For security operations 

conducted in accordance with Presidential 

Decision Directive 39, U.S. POLICY ON 


cprice-sewell on PROD1PC66 with RULES2
6942 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

COUNTER TERRORISM, use of Department 

of Defense military type masks for respiratory 

protection by security personnel is 

acceptable. 

7. Biological Safety 

(a) Contractors must establish and 

implement a biological safety program that: 

(1) Establishes an Institutional Biosafety 

Committee (IBC) or equivalent. The IBC 

must: 

(i) Review any work with biological 

etiologic agents for compliance with 

applicable Centers for Disease Control and 

Prevention (CDC), National Institutes of 

Health (NIH), World Health Organization 

(WHO), and other international, Federal, 

State, and local guidelines and assess the 

containment level, facilities, procedures, 

practices, and training and expertise of 

personnel; and 

(ii) Review the site’s security, safeguards, 

and emergency management plans and 

procedures to ensure they adequately 

consider work involving biological etiologic 

agents. 

(2) Maintains an inventory and status of 

biological etiologic agents, and provide to the 

responsible field and area office, through the 

laboratory IBC (or its equivalent), an annual 

status report describing the status and 

inventory of biological etiologic agents and 

the biological safety program. 

(3) Provides for submission to the 

appropriate Head of DOE Field Element, for 

review and concurrence before transmittal to 

the Centers for Disease Control and 

Prevention (CDC), each Laboratory 

Registration/Select Agent Program 

registration application package requesting 

registration of a laboratory facility for the 

purpose of transferring, receiving, or 

handling biological select agents. 

(4) Provides for submission to the 

appropriate Head of DOE Field Element, a 

copy of each CDC Form EA–101, Transfer of 

Select Agents, upon initial submission of the 

Form EA–101 to a vendor or other supplier 

requesting or ordering a biological select 

agent for transfer, receipt, and handling in 

the registered facility. Submit to the 

appropriate Head of DOE Field Element the 

completed copy of the Form EA–101, 

documenting final disposition and/or 

destruction of the select agent, within 10 

days of completion of the Form EA–101. 

(5) Confirms that the site safeguards and 

security plans and emergency management 

programs address biological etiologic agents, 

with particular emphasis on biological select 

agents. 

(6) Establishes an immunization policy for 

personnel working with biological etiologic 

agents based on the evaluation of risk and 

benefit of immunization. 

(b) [Reserved] 

8. Occupational Medicine 

(a) Contractors must establish and provide 

comprehensive occupational medicine 

services to workers employed at a covered 

work place who: 

(1) Work on a DOE site for more than 30 

days in a 12-month period; or 

(2) Are enrolled for any length of time in 

a medical or exposure monitoring program 

required by this rule and/or any other 

applicable Federal, State or local regulation, 

or other obligation. 

(b) The occupational medicine services 

must be under the direction of a graduate of 

a school of medicine or osteopathy who is 

licensed for the practice of medicine in the 

state in which the site is located. 

(c) Occupational medical physicians, 

occupational health nurses, physician’s 

assistants, nurse practitioners, psychologists, 

employee assistance counselors, and other 

occupational health personnel providing 

occupational medicine services must be 

licensed, registered, or certified as required 

by Federal or State law where employed. 

(d) Contractors must provide the 

occupational medicine providers access to 

hazard information by promoting its 

communication, coordination, and sharing 

among operating and environment, safety, 

and health protection organizations. 

(1) Contractors must provide the 

occupational medicine providers with access 

to information on the following: 

(i) Current information about actual or 

potential work-related site hazards (chemical, 

radiological, physical, biological, or 

ergonomic); 

(ii) Employee job-task and hazard analysis 

information, including essential job 

functions; 

(iii) Actual or potential work-site 

exposures of each employee; and 

(iv) Personnel actions resulting in a change 

of job functions, hazards or exposures. 

(2) Contractors must notify the 

occupational medicine providers when an 

employee has been absent because of an 

injury or illness for more than 5 consecutive 

workdays (or an equivalent time period for 

those individuals on an alternative work 

schedule); 

(3) Contractors must provide the 

occupational medicine provider information 

on, and the opportunity to participate in, 

worker safety and health team meetings and 

committees; 

(4) Contractors must provide occupational 

medicine providers access to the workplace 

for evaluation of job conditions and issues 

relating to workers’ health. 

(e) A designated occupational medicine 

provider must: 

(1) Plan and implement the occupation 

medicine services; and 

(2) Participate in worker protection teams 

to build and maintain necessary partnerships 

among workers, their representatives, 

managers, and safety and health protection 

specialists in establishing and maintaining a 

safe and healthful workplace. 

(f) A record, containing any medical, 

health history, exposure history, and 

demographic data collected for the 

occupational medicine purposes, must be 

developed and maintained for each employee 

for whom medical services are provided. All 

occupational medical records must be 

maintained in accordance with Executive 

Order 13335, Incentives for the Use of Health 

Information Technology. 

(1) Employee medical, psychological, and 

employee assistance program (EAP) records 

must be kept confidential, protected from 

unauthorized access, and stored under 

conditions that ensure their long-term 

preservation. Psychological records must be 

maintained separately from medical records 

and in the custody the designated 

psychologist in accordance with 10 CFR 

712.38(b)(2). 

(2) Access to these records must be 

provided in accordance with DOE regulations 

implementing the Privacy Act and the Energy 

Employees Occupational Illness 

Compensation Program Act. 

(g) The occupational medicine services 

provider must determine the content of the 

worker health evaluations, which must be 

conducted under the direction of a licensed 

physician, in accordance with current sound 

and acceptable medical practices and all 

pertinent statutory and regulatory 

requirements, such as the Americans with 

Disabilities Act. 

(1) Workers must be informed of the 

purpose and nature of the medical 

evaluations and tests offered by the 

occupational medicine provider. 

(i) The purpose, nature and results of 

evaluations and tests must be clearly 

communicated verbally and in writing to 

each worker provided testing; 

(ii) The communication must be 

documented in the worker’s medical record; 

and (2) The following health evaluations 

must be conducted when determined 

necessary by the occupational medicine 

provider for the purpose of providing initial 

and continuing assessment of employee 

fitness for duty. 

(i) At the time of employment entrance or 

transfer to a job with new functions and 

hazards, a medical placement evaluation of 

the individual’s general health and physical 

and psychological capacity to perform work 

will establish a baseline record of physical 

condition and assure fitness for duty. 

(ii) Periodic, hazard-based medical 

monitoring or qualification-based fitness for 

duty evaluations required by regulations and 

standards, or as recommended by the 

occupational medicine services provider, 

will be provided on the frequency required. 

(iii) Diagnostic examinations will evaluate 

employee’s injuries and illnesses to 

determine work-relatedness, the applicability 

of medical restrictions, and referral for 

definitive care, as appropriate. 

(iv) After a work-related injury or illness or 

an absence due to any injury or illness lasting 

5 or more consecutive workdays (or an 

equivalent time period for those individuals 

on an alternative work schedule), a return to 

work evaluation will determine the 

individual’s physical and psychological 

capacity to perform work and return to duty. 

(v) At the time of separation from 

employment, individuals shall be offered a 

general health evaluation to establish a 

record of physical condition. 

(h) The occupational medicine provider 

must monitor ill and injured workers to 

facilitate their rehabilitation and safe return 

to work and to minimize lost time and its 

associated costs. 

(1) The occupational medicine provider 

must place an individual under medical 

restrictions when health evaluations indicate 

that the worker should not perform certain 

job tasks. The occupational medicine 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6943 

provider must notify the worker and 

contractor management when employee work 

restrictions are imposed or removed. 

(i) Occupational medicine provider 

physician and medical staff must, on a timely 

basis, communicate results of health 

evaluations to management and safety and 

health protection specialists to facilitate the 

mitigation of worksite hazards. 

(j) The occupational medicine provider 

must include measures to identify and 

manage the principal preventable causes of 

premature morbidity and mortality affecting 

worker health and productivity. 

(1) The contractor must include programs 

to prevent and manage these causes of 

morbidity when evaluations demonstrate 

their cost effectiveness. 

(2) Contractors must make available to the 

occupational medicine provider appropriate 

access to information from health, disability, 

and other insurance plans (de-identified as 

necessary) in order to facilitate this process. 

(k) The occupational medicine services 

provider must review and approve the 

medical and behavioral aspects of employee 

counseling and health promotional programs, 

including the following types: 

(1) Contractor-sponsored or contractorsupported EAPs; 

(2) Contractor-sponsored or contractorsupported alcohol and other substance abuse 

rehabilitation programs; and 

(3) Contractor-sponsored or contractorsupported wellness programs. 

(4) The occupational medicine services 

provider must review the medical aspects of 

immunization programs, blood-borne 

pathogens programs, and bio-hazardous 

waste programs to evaluate their 

conformance to applicable guidelines. 

(5) The occupational medicine services 

provider must develop and periodically 

review medical emergency response 

procedures included in site emergency and 

disaster preparedness plans. The medical 

emergency responses must be integrated with 

nearby community emergency and disaster 

plans. 

9. Motor Vehicle Safety 

(a) Contractors must implement a motor 

vehicle safety program to protect the safety 

and health of all drivers and passengers in 

Government-owned or -leased motor vehicles 

and powered industrial equipment (i.e., fork 

trucks, tractors, platform lift trucks, and other 

similar specialized equipment powered by an 

electric motor or an internal combustion 

engine). 

(b) The contractor must tailor the motor 

vehicle safety program to the individual DOE 

site or facility, based on an analysis of the 

needs of that particular site or facility. 

(c) The motor vehicle safety program must 

address, as applicable to the contractor’s 

operations: 

(1) Minimum licensing requirements 

(including appropriate testing and medical 

qualification) for personnel operating motor 

vehicles and powered industrial equipment; 

(2) Requirements for the use of seat belts 

and provision of other safety devices; 

(3) Training for specialty vehicle operators; 

(4) Requirements for motor vehicle 

maintenance and inspection; 

(5) Uniform traffic and pedestrian control 

devices and road signs; 

(6) On-site speed limits and other traffic 

rules; 

(7) Awareness campaigns and incentive 

programs to encourage safe driving; and 

(8) Enforcement provisions. 

10. Electrical Safety 

Contractors must implement a 

comprehensive electrical safety program 

appropriate for the activities at their site. 

This program must meet the applicable 

electrical safety codes and standards 

referenced in § 851.23. 

11. Nanotechnology Safety—Reserved 

The Department has chosen to reserve this 

section since policy and procedures for 

nanotechnology safety are currently being 

developed. Once these policies and 

procedures have been approved, the rule will 

be amended to include them through a 

rulemaking consistent with the 

Administrative Procedure Act. 

12. Workplace Violence Prevention—

Reserved 

The Department has chosen to reserve this 

section since the policy and procedures for 

workplace violence prevention are currently 

being developed. Once these policies and 

procedures have been approved, the rule will 

be amended to include them through a 

rulemaking consistent with the 

Administrative Procedure Act. 

Appendix B to Part 851—General 

Statement of Enforcement Policy 

I. Introduction 

(a) This policy statement sets forth the 

general framework through which the U.S. 

Department of Energy (DOE) will seek to 

ensure compliance with its worker safety and 

health regulations, and, in particular, 

exercise the civil penalty authority provided 

to DOE in section 3173 of Public Law 107–

314, Bob Stump National Defense 

Authorization Act for Fiscal Year 2003 

(December 2, 2002) (‘‘NDAA’’), amending the 

Atomic Energy Act (AEA) to add section 

234C. The policy set forth herein is 

applicable to violations of safety and health 

regulations in this part by DOE contractors, 

including DOE contractors who are 

indemnified under the Price-Anderson Act, 

42 U.S.C. 2210(d), and their subcontractors 

and suppliers (hereafter collectively referred 

to as DOE contractors). This policy statement 

is not a regulation and is intended only to 

provide general guidance to those persons 

subject to the regulations in this part. It is not 

intended to establish a ‘‘cookbook’’ approach 

to the initiation and resolution of situations 

involving noncompliance with the 

regulations in this part. Rather, DOE intends 

to consider the particular facts of each 

noncompliance in determining whether 

enforcement sanctions are appropriate and, if 

so, the appropriate magnitude of those 

sanctions. DOE may well deviate from this 

policy statement when appropriate in the 

circumstances of particular cases. This policy 

statement is not applicable to activities and 

facilities covered under E.O. 12344, 42 U.S.C. 

7158 note, pertaining to Naval Nuclear 

Propulsion, or otherwise excluded from the 

scope of the rule. 

(b) The DOE goal in the compliance arena 

is to enhance and protect the safety and 

health of workers at DOE facilities by 

fostering a culture among both the DOE line 

organizations and the contractors that 

actively seeks to attain and sustain 

compliance with the regulations in this part. 

The enforcement program and policy have 

been developed with the express purpose of 

achieving safety inquisitiveness and 

voluntary compliance. DOE will establish 

effective administrative processes and 

positive incentives to the contractors for the 

open and prompt identification and reporting 

of noncompliances, performance of effective 

root cause analysis, and initiation of 

comprehensive corrective actions to resolve 

both noncompliance conditions and program 

or process deficiencies that led to 

noncompliance. 

(c) In the development of the DOE 

enforcement policy, DOE recognizes that the 

reasonable exercise of its enforcement 

authority can help to reduce the likelihood 

of serious incidents. This can be 

accomplished by placing greater emphasis on 

a culture of safety in existing DOE 

operations, and strong incentives for 

contractors to identify and correct 

noncompliance conditions and processes in 

order to protect human health and the 

environment. DOE wants to facilitate, 

encourage, and support contractor initiatives 

for the prompt identification and correction 

of noncompliances. DOE will give due 

consideration to such initiatives and 

activities in exercising its enforcement 

discretion. 

(d) DOE may modify or remit civil 

penalties in a manner consistent with the 

adjustment factors set forth in this policy 

with or without conditions. DOE will 

carefully consider the facts of each case of 

noncompliance and will exercise appropriate 

discretion in taking any enforcement action. 

Part of the function of a sound enforcement 

program is to assure a proper and continuing 

level of safety vigilance. The reasonable 

exercise of enforcement authority will be 

facilitated by the appropriate application of 

safety requirements to DOE facilities and by 

promoting and coordinating the proper 

contractor and DOE safety compliance 

attitude toward those requirements. 

II. Purpose 

The purpose of the DOE enforcement 

program is to promote and protect the safety 

and health of workers at DOE facilities by: 

(a) Ensuring compliance by DOE 

contractors with the regulations in this part. 

(b) Providing positive incentives for DOE 

contractors based on: 

(1) Timely self-identification of worker 

safety noncompliances; 

(2) Prompt and complete reporting of such 

noncompliances to DOE; 

(3) Prompt correction of safety 

noncompliances in a manner that precludes 

recurrence; and 

(4) Identification of modifications in 

practices or facilities that can improve 

worker safety and health. 

(c) Deterring future violations of DOE 

requirements by a DOE contractor. 


cprice-sewell on PROD1PC66 with RULES2
6944 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

(d) Encouraging the continuous overall 

improvement of operations at DOE facilities. 

III. Statutory Authority 

The Department of Energy Organization 

Act, 42 U.S.C. 7101–7385o, the Energy 

Reorganization Act of 1974 (ERA), 42 U.S.C. 

5801–5911, and the Atomic Energy Act of 

1954, as amended, (AEA) 42 U.S.C. 2011, 

require DOE to protect the public safety and 

health, as well as the safety and health of 

workers at DOE facilities, in conducting its 

activities, and grant DOE broad authority to 

achieve this goal. Section 234C of the AEA 

makes DOE contractors (and their 

subcontractors and suppliers thereto) covered 

by the DOE Price-Anderson indemnification 

system, subject to civil penalties for 

violations of the worker safety and health 

requirements promulgated in this part. 42 

U.S.C. 2282c. 

IV. Responsibilities 

(a) The Director, as the principal 

enforcement officer of the DOE, has been 

delegated the authority to: 

(1) Conduct enforcement inspections, 

investigations, and conferences; 

(2) Issue Notices of Violations and 

proposed civil penalties, Enforcement 

Letters, Consent Orders, and subpoenas; and 

(3) Issue orders to compel attendance and 

disclosure of information or documents 

obtained during an investigation or 

inspection. The Secretary issues Compliance 

Orders. 

(b) The NNSA Administrator, rather than 

the Director, signs, issues and serves the 

following actions that direct NNSA 

contractors: 

(1) Subpoenas; 

(2) Orders to compel attendance; and 

(3) Determines to disclose information or 

documents obtained during an investigation 

or inspection, PNOVs, Notices of Violations, 

and Final Notices of Violations. The NNSA 

Administrator acts after consideration of the 

Director’s recommendation. 

V. Procedural Framework 

(a) Title 10 CFR part 851 sets forth the 

procedures DOE will use in exercising its 

enforcement authority, including the 

issuance of Notices of Violation and the 

resolution of an administrative appeal in the 

event a DOE contractor elects to petition the 

Office of Hearings and Appeals for review. 

(b) Pursuant to 10 CFR part 851 subpart E, 

the Director initiates the enforcement process 

by initiating and conducting investigations 

and inspections and issuing a Preliminary 

Notice of Violation (PNOV) with or without 

a proposed civil penalty. The DOE contractor 

is required to respond in writing to the PNOV 

within 30 days, either: (1) Admitting the 

violation and waiving its right to contest the 

proposed civil penalty and paying it; (2) 

admitting the violation but asserting the 

existence of mitigating circumstances that 

warrant either the total or partial remission 

of the civil penalty; or (3) denying that the 

violation has occurred and providing the 

basis for its belief that the PNOV is incorrect. 

After evaluation of the DOE contractor’s 

response, the Director may determine: (1) 

That no violation has occurred; (2) that the 

violation occurred as alleged in the PNOV 

but that the proposed civil penalty should be 

remitted in whole or in part; or (3) that the 

violation occurred as alleged in the PNOV 

and that the proposed civil penalty is 

appropriate, notwithstanding the asserted 

mitigating circumstances. In the latter two 

instances, the Director will issue a Final 

Notice of Violation (FNOV) or an FNOV and 

proposed civil penalty. 

(c) An opportunity to challenge an FNOV 

is provided in administrative appeal 

provisions. See 10 CFR 851.44. Any 

contractor that receives an FNOV may 

petition the Office of Hearings and Appeals 

for review of the final notice in accordance 

with 10 CFR part 1003, Subpart G, within 30 

calendar days from receipt of the final notice. 

An administrative appeal proceeding is not 

initiated until the DOE contractor against 

which an FNOV has been issued requests an 

administrative hearing rather than waiving 

its right to contest the FNOV and proposed 

civil penalty, if any, and paying the civil 

penalty. However, it should be emphasized 

that DOE encourages the voluntary resolution 

of a noncompliance situation at any time, 

either informally prior to the initiation of the 

enforcement process or by consent order 

before or after any formal proceeding has 

begun. 

VI. Severity of Violations 

(a) Violations of the worker safety and 

health requirements in this part have varying 

degrees of safety and health significance. 

Therefore, the relative safety and health risk 

of each violation must be identified as the 

first step in the enforcement process. 

Violations of the worker safety and health 

requirements are categorized in two levels of 

severity to identify their relative seriousness. 

Notices of Violation issued for 

noncompliance when appropriate, propose 

civil penalties commensurate with the 

severity level of the violations involved. 

(b) To assess the potential safety and health 

impact of a particular violation, DOE will 

categorize the potential severity of violations 

of worker safety and health requirements as 

follows: 

(1) A Severity Level I violation is a serious 

violation. A serious violation shall be 

deemed to exist in a place of employment if 

there is a potential that death or serious 

physical harm could result from a condition 

which exists, or from one or more practices, 

means, methods, operations, or processes 

which have been adopted or are in use, in 

such place of employment. A Severity Level 

I violation would be subject to a base civil 

penalty of up to 100% of the maximum base 

civil penalty of $70,000. 

(2) A Severity Level II violation is an otherthan-serious violation. An other-than-serious 

violation occurs where the most serious 

injury or illness that would potentially result 

from a hazardous condition cannot 

reasonably be predicted to cause death or 

serious physical harm to employees but does 

have a direct relationship to their safety and 

health. A Severity Level II violation would be 

subject to a base civil penalty up to 50% of 

the maximum base civil penalty ($35,000). 

(c) De minimis violations, defined as a 

deviation from the requirement of a standard 

that has no direct or immediate relationship 

to safety or health, will not be the subject of 

formal enforcement action through the 

issuance of a Notice of Violation. 

VII. Enforcement Conferences 

(a) The purpose of the enforcement 

conference is to: 

(1) Assure the accuracy of the facts upon 

which the preliminary determination to 

consider enforcement action is based; 

(2) Discuss the potential or alleged 

violations, their significance and causes, and 

the nature of and schedule for the DOE 

contractor’s corrective actions; 

(3) Determine whether there are any 

aggravating or mitigating circumstances; and 

(4) Obtain other information which will 

help determine whether enforcement action 

is appropriate and, if so, the extent of that 

enforcement action. 

(b) All enforcement conferences are 

convened at the discretion of the Director. 

(c) The PNOV will normally be issued 

promptly, before the opportunity for an 

enforcement conference, following the 

inspection/investigation. In some cases an 

enforcement conference may be conducted 

onsite at the conclusion of an inspection/ 

investigation. 

(d) The contractor may request an 

enforcement conference if they believe 

additional information pertinent to the 

enforcement action could best be conveyed 

through a meeting. 

(e) DOE contractors will be informed prior 

to a meeting when that meeting is considered 

to be an enforcement conference. Such 

conferences are informal mechanisms for 

candid discussions regarding potential or 

alleged violations and will not normally be 

open to the public. In circumstances for 

which immediate enforcement action is 

necessary in the interest of worker safety and 

health, such action will be taken prior to the 

enforcement conference, which may still be 

held after the necessary DOE action has been 

taken. 

VIII. Enforcement Letter 

(a) In cases where DOE has decided not to 

conduct an investigation or inspection or 

issue a Preliminary Notice of Violation 

(PNOV), DOE may send an Enforcement 

Letter, signed by the Director to the 

contractor. The Enforcement Letter is 

intended to communicate the basis of the 

decision not to pursue enforcement action for 

a noncompliance. The Enforcement Letter is 

intended to direct contractors to the desired 

level of worker safety and health 

performance. It may be used when DOE 

concludes that the specific noncompliance at 

issue is not of the level of significance 

warranted to conduct an investigation or 

inspection or for issuance of a PNOV. Even 

where a noncompliance may be significant, 

the Enforcement Letter may recognize that 

the contractor’s actions may have attenuated 

the need for enforcement action. The 

Enforcement Letter will typically recognize 

how the contractor handled the 

circumstances surrounding the 

noncompliance, address additional areas 

requiring the contractor’s attention, and 

address DOE’s expectations for corrective 

action. 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6945 

(b) In general, Enforcement Letters 

communicate DOE’s expectations with 

respect to any aspect of the requirements of 

this part, including identification and 

reporting of issues, corrective actions, and 

implementation of the contractor’s safety and 

health program. DOE might, for example, 

wish to recognize some action of the 

contractor that is of particular benefit to 

worker safety and health that is a candidate 

for emulation by other contractors. On the 

other hand, DOE may wish to bring a 

program shortcoming to the attention of the 

contractor that, but for the lack of worker 

safety and health significance of the 

immediate issue, might have resulted in the 

issuance of a PNOV. An Enforcement Letter 

is not an enforcement action. 

(c) With respect to many noncompliances, 

an Enforcement Letter may not be required. 

When DOE decides that a contractor has 

appropriately corrected a noncompliance or 

that the significance of the noncompliance is 

sufficiently low, it may close out its review 

simply through an annotation in the DOE 

Noncompliance Tracking System (NTS). A 

closeout of a noncompliance with or without 

an Enforcement Letter may only take place 

after DOE has confirmed that corrective 

actions have been completed. 

IX. Enforcement Actions 

(a) This section describes the enforcement 

sanctions available to DOE and specifies the 

conditions under which each may be used. 

The basic sanctions are Notices of Violation 

and civil penalties. 

(b) The nature and extent of the 

enforcement action is intended to reflect the 

seriousness of the violation. For the vast 

majority of violations for which DOE assigns 

severity levels as described previously, a 

Notice of Violation will be issued, requiring 

a formal response from the recipient 

describing the nature of and schedule for 

corrective actions it intends to take regarding 

the violation. 

1. Notice of Violation 

(a) A Notice of Violation (either a 

Preliminary or Final Notice) is a document 

setting forth the conclusion of DOE and the 

basis to support the conclusion, that one or 

more violations of the worker safety and 

health requirements have occurred. Such a 

notice normally requires the recipient to 

provide a written response which may take 

one of several positions described in section 

V of this policy statement. In the event that 

the recipient concedes the occurrence of the 

violation, it is required to describe corrective 

steps which have been taken and the results 

achieved; remedial actions which will be 

taken to prevent recurrence; and the date by 

which full compliance will be achieved. 

(b) DOE will use the Notice of Violation as 

the standard method for formalizing the 

existence of a violation and, in appropriate 

cases as described in this section, the Notice 

of Violation will be issued in conjunction 

with the proposed imposition of a civil 

penalty. In certain limited instances, as 

described in this section, DOE may refrain 

from the issuance of an otherwise 

appropriate Notice of Violation. However, a 

Notice of Violation will virtually always be 

issued for willful violations, or if past 

corrective actions for similar violations have 

not been sufficient to prevent recurrence and 

there are no other mitigating circumstances. 

(c) DOE contractors are not ordinarily cited 

for violations resulting from matters not 

within their control, such as equipment 

failures that were not avoidable by 

reasonable quality assurance measures, 

proper maintenance, or management 

controls. With regard to the issue of funding, 

however, DOE does not consider an asserted 

lack of funding to be a justification for 

noncompliance with the worker safety and 

health requirements. 

(d) DOE expects its contractors to have the 

proper management and supervisory systems 

in place to assure that all activities at covered 

workplaces, regardless of who performs 

them, are carried out in compliance with all 

the worker safety and health requirements. 

Therefore, contractors are normally held 

responsible for the acts of their employees 

and subcontractor employees in the conduct 

of activities at covered workplaces. 

Accordingly, this policy should not be 

construed to excuse personnel errors. 

(e) The limitations on remedies under 

section 234C will be implemented as follows: 

(1) DOE may assess civil penalties of up to 

$70,000 per violation per day on contractors 

(and their subcontractors and suppliers) that 

are indemnified by the Price-Anderson Act, 

42 U.S.C. 2210(d). See 10 CFR 851.5(a). 

(2) DOE may seek contract fee reductions 

through the contract’s Conditional Payment 

of Fee Clause in the Department of Energy 

Acquisition Regulation (DEAR). See 10 CFR 

851.4(b); 48 CFR parts 923, 952, 970. Policies 

for contract fee reductions are not established 

by this policy statement. The Director and 

appropriate contracting officers will 

coordinate their efforts in compliance with 

the statute. See 10 CFR 851.5(b). 

(3) For the same violation of a worker 

safety and health requirement in this part, 

DOE may pursue either civil penalties (for 

indemnified contractors and their 

subcontractors and suppliers) or a contract 

fee reduction, but not both. See 10 CFR 

851.5(c). 

(4) A ceiling applies to civil penalties 

assessed on certain contractors specifically 

listed in 170d. of the Atomic Energy Act, 42 

U.S.C. 2282a(d), for activities conducted at 

specified facilities. For these contractors, the 

total amount of civil penalties and contract 

penalties in a fiscal year may not exceed the 

total amount of fees paid by DOE to that 

entity in that fiscal year. See 10 CFR 851.5(d). 

2. Civil Penalty 

(a) A civil penalty is a monetary penalty 

that may be imposed for violations of 

requirements of this part. See 10 CFR 

851.5(a). Civil penalties are designed to 

emphasize the need for lasting remedial 

action, deter future violations, and 

underscore the importance of DOE contractor 

self-identification, reporting, and correction 

of violations of the worker safety and health 

requirements in this part. 

(b) Absent mitigating circumstances as 

described below, or circumstances otherwise 

warranting the exercise of enforcement 

discretion by DOE as described in this 

section, civil penalties will be proposed for 

Severity Level I and II violations. 

(c) DOE will impose different base level 

penalties considering the severity level of the 

violation. Table A–1 shows the daily base 

civil penalties for the various categories of 

severity levels. However, as described below 

in section IX, paragraph b.3, the imposition 

of civil penalties will also take into account 

the gravity, circumstances, and extent of the 

violation or violations and, with respect to 

the violator, any history of prior similar 

violations and the degree of culpability and 

knowledge. 

(d) Enforcement personnel will use riskbased criteria to assist the Director in 

determining appropriate civil penalties for 

violations found during investigations and 

inspections. 

(e) Regarding the factor of ability of DOE 

contractors to pay the civil penalties, it is not 

DOE’s intention that the economic impact of 

a civil penalty be such that it puts a DOE 

contractor out of business. Contract 

termination, rather than civil penalties, is 

used when the intent is to terminate these 

activities. The deterrent effect of civil 

penalties is best served when the amount of 

such penalties takes this factor into account. 

However, DOE will evaluate the relationship 

of affiliated entities to the contractor (such as 

parent corporations) when the contractor 

asserts that it cannot pay the proposed 

penalty. 

(f) DOE will review each case on its own 

merits and adjust the base civil penalty 

values upward or downward. As indicated 

below, Table A–1 identifies the daily base 

civil penalty values for different severity 

levels. After considering all relevant 

circumstances, civil penalties may be 

adjusted up or down based on the mitigating 

or aggravating factors described later in this 

section. In no instance will a civil penalty for 

any one violation exceed the statutory limit 

of $70,000 per day. In cases where the DOE 

contractor had knowledge of a violation and 

has not reported it to DOE and taken 

corrective action despite an opportunity to 

do so, DOE will consider utilizing its per day 

civil penalty authority. Further, as described 

in this section, the duration of a violation 

will be taken into account in adjusting the 

base civil penalty. 

TABLE A–1.—SEVERITY LEVEL BASE

CIVIL PENALTIES

Severity level 

Base civil penalty 

amount (Percentage of maximum 

per violation per 

day) 

I ......................................... 100 

II ........................................ 50 

3. Adjustment Factors 

(a) DOE may reduce a penalty based on 

mitigating circumstances or increase a 

penalty based on aggravating circumstances. 

DOE’s enforcement program is not an end in 

itself, but a means to achieve compliance 

with the worker safety and health 

requirements in this part. Civil penalties are 

intended to emphasize the importance of 


cprice-sewell on PROD1PC66 with RULES2
6946 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

compliance and to deter future violations. 

The single most important goal of the DOE 

enforcement program is to encourage early 

identification and reporting of violations of 

the worker safety and health requirements in 

this part by the DOE contractors themselves 

rather than by DOE, and the prompt 

correction of any violations so identified. 

DOE believes that DOE contractors are in the 

best position to identify and promptly correct 

noncompliance with the worker safety and 

health requirements in this part. DOE expects 

that these contractors should have in place 

internal compliance programs which will 

ensure the detection, reporting, and prompt 

correction of conditions that may constitute, 

or lead to, violations of the worker safety and 

health requirements in this part, before, 

rather than after, DOE has identified such 

violations. Thus, DOE contractors should 

almost always be aware of worker safety and 

health noncompliances before they are 

discovered by DOE. Obviously, worker safety 

and health is enhanced if noncompliances 

are discovered (and promptly corrected) by 

the DOE contractor, rather than by DOE, 

which may not otherwise become aware of a 

noncompliance until later, during the course 

of an inspection, performance assessment, or 

following an incident at the facility. Early 

identification of worker safety and healthrelated noncompliances by DOE contractors 

has the added benefit of allowing information 

that could prevent such noncompliances at 

other facilities in the DOE complex to be 

shared with other appropriate DOE 

contractors. 

(b) Pursuant to this enforcement 

philosophy, DOE will provide substantial 

incentive for the early self-identification, 

reporting, and prompt correction of 

conditions which constitute, or could lead to, 

violations of the worker safety and health 

requirements. Thus, the civil penalty may be 

reduced for violations that are identified, 

reported, and promptly and effectively 

corrected by the DOE contractor. 

(c) On the other hand, ineffective programs 

for problem identification and correction are 

aggravating circumstances and may increase 

the penalty amount. Thus, for example, 

where a contractor fails to disclose and 

promptly correct violations of which it was 

aware or should have been aware, substantial 

civil penalties are warranted and may be 

sought, including the assessment of civil 

penalties for continuing violations on a per 

day basis. 

(d) Further, in cases involving factors of 

willfulness, repeated violations, death, 

serious injury, patterns of systemic 

violations, DOE-identified flagrant violations, 

repeated poor performance in an area of 

concern, or serious breakdown in 

management controls, DOE intends to apply 

its full statutory enforcement authority where 

such action is warranted. 

(e) Additionally, adjustment to the amount 

of civil penalty will be dependent, in part, on 

the degree of culpability of the DOE 

contractor with regard to the violation. Thus, 

inadvertent violations will be viewed 

differently from those in which there is gross 

negligence, deception, or willfulness. In 

addition to the severity of the underlying 

violation and level of culpability involved, 

DOE will also consider the position, training 

and experience of those involved in the 

violation. Thus, for example, a violation may 

be deemed to be more significant if a senior 

manager of an organization is involved rather 

than a foreman or non-supervisory employee. 

(f) Other factors that will be considered in 

determining the civil penalty amount are the 

duration of the violation (how long the 

condition has presented a potential exposure 

to workers), the extent of the condition 

(number of instances of the violation), the 

frequency of the exposure (how often 

workers are exposed), the proximity of the 

workers to the exposure, and the past history 

of similar violations. 

(g) DOE expects contractors to provide full, 

complete, timely, and accurate information 

and reports. Accordingly, the penalty amount 

for a violation involving either a failure to 

make a required report or notification to the 

DOE or an untimely report or notification, 

will be based upon the circumstances 

surrounding the matter that should have been 

reported. A contractor will not normally be 

cited for a failure to report a condition or 

event unless the contractor was aware or 

should have been aware of the condition or 

event that it failed to report. 

4. Identification and Reporting 

Reduction of up to 50% of the base civil 

penalty shown in Table A–1 may be given 

when a DOE contractor identifies the 

violation and promptly reports the violation 

to the DOE. Consideration will be given to, 

among other things, the opportunity available 

to discover the violation, the ease of 

discovery and the promptness and 

completeness of any required report. No 

consideration will be given to a reduction in 

penalty if the DOE contractor does not take 

prompt action to report the problem to DOE 

upon discovery, or if the immediate actions 

necessary to restore compliance with the 

worker safety and health requirements are 

not taken. 

5. Self-Identification and Tracking Systems 

(a) DOE strongly encourages contractors to 

self-identify noncompliances with the worker 

safety and health requirements before the 

noncompliances lead to a string of similar 

and potentially more significant events or 

consequences. When a contractor identifies a 

noncompliance, DOE will normally allow a 

reduction in the amount of civil penalties, 

unless prior opportunities existed for 

contractors to identify the noncompliance. 

DOE will normally not allow a reduction in 

civil penalties for self-identification if 

significant DOE intervention was required to 

induce the contractor to report a 

noncompliance. 

(b) Self-identification of a noncompliance 

is possibly the single most important factor 

in considering a reduction in the civil 

penalty amount. Consideration of selfidentification is linked to, among other 

things, whether prior opportunities existed to 

discover the violation, and if so, the age and 

number of such opportunities; the extent to 

which proper contractor controls should 

have identified or prevented the violation; 

whether discovery of the violation resulted 

from a contractor’s self-monitoring activity; 

the extent of DOE involvement in discovering 

the violation or in prompting the contractor 

to identify the violation; and the promptness 

and completeness of any required report. 

Self-identification is also considered by DOE 

in deciding whether to pursue an 

investigation. 

(c) DOE will use the voluntary 

Noncompliance Tracking System (NTS) 

which allows contractors to elect to report 

noncompliances. In the guidance document 

supporting the NTS, DOE will establish 

reporting thresholds for reporting 

noncompliances of potentially greater worker 

safety and health significance into the NTS. 

Contractors are expected, however, to use 

their own self-tracking systems to track 

noncompliances below the reporting 

threshold. This self-tracking is considered to 

be acceptable self-reporting as long as DOE 

has access to the contractor’s system and the 

contractor’s system notes the item as a 

noncompliance with a DOE safety and health 

requirement. For noncompliances that are 

below the NTS reportability thresholds, DOE 

will credit contractor self-tracking as 

representing self-reporting. If an item is not 

reported in NTS but only tracked in the 

contractor’s system and DOE subsequently 

determines that the noncompliance was 

significantly mischaracterized, DOE will not 

credit the internal tracking as representing 

appropriate self-reporting. 

6. Self-Disclosing Events 

(a) DOE expects contractors to demonstrate 

acceptance of responsibility for worker safety 

and health by proactively identifying 

noncompliances. When the occurrence of an 

event discloses noncompliances that the 

contractor could have or should have 

identified before the event, DOE will not 

generally reduce civil penalties for selfidentification, even if the underlying 

noncompliances were reported to DOE. In 

deciding whether to reduce any civil penalty 

proposed for violations revealed by the 

occurrence of a self-disclosing event, DOE 

will consider the ease with which a 

contractor could have discovered the 

noncompliance and the prior opportunities 

that existed to discover the noncompliance. 

If a contractor simply reacts to events that 

disclose potentially significant consequences 

or downplays noncompliances which did not 

result in significant consequences to worker 

safety and health, such contractor actions do 

not constitute the type of proactive behavior 

necessary to prevent significant events from 

occurring and thereby to improve worker 

safety and health. 

(b) The key test is whether the contractor 

reasonably could have detected any of the 

underlying noncompliances that contributed 

to the event. Examples of events that provide 

opportunities to identify noncompliances 

include, but are not limited to: 

(1) Prior notifications of potential problems 

such as those from DOE operational 

experience publications or vendor equipment 

deficiency reports; 

(2) Normal surveillance, quality assurance 

performance assessments, and postmaintenance testing; 

(3) Readily observable parameter trends; 

and 


cprice-sewell on PROD1PC66 with RULES2
Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6947 

(4) Contractor employee or DOE 

observations of potential worker safety and 

health problems. 

(c) Failure to utilize these types of events 

and activities to address noncompliances 

may result in higher civil penalty 

assessments or a DOE decision not to reduce 

civil penalty amounts. 

(d) Alternatively, if, following a selfdisclosing event, DOE finds that the 

contractor’s processes and procedures were 

adequate and the contractor’s personnel 

generally behaved in a manner consistent 

with the contractor’s processes and 

procedures, DOE could conclude that the 

contractor could not have been reasonably 

expected to find the single noncompliance 

that led to the event and thus, might allow 

a reduction in civil penalties. 

7. Corrective Action To Prevent Recurrence 

The promptness (or lack thereof) and 

extent to which the DOE contractor takes 

corrective action, including actions to 

identify root cause and prevent recurrence, 

may result in an increase or decrease in the 

base civil penalty shown in Table A–1. For 

example, appropriate corrective action may 

result in DOE’s reducing the proposed civil 

penalty up to 50% from the base value 

shown in Table A–1. On the other hand, the 

civil penalty may be increased if initiation of 

corrective action is not prompt or if the 

corrective action is only minimally 

acceptable. In weighing this factor, 

consideration will be given to, among other 

things, the appropriateness, timeliness and 

degree of initiative associated with the 

corrective action. The comprehensiveness of 

the corrective action will also be considered, 

taking into account factors such as whether 

the action is focused narrowly to the specific 

violation or broadly to the general area of 

concern. 

8. DOE’s Contribution to a Violation 

There may be circumstances in which a 

violation of a DOE worker safety and health 

requirement results, in part or entirely, from 

a direction given by DOE personnel to a DOE 

contractor to either take or forbear from 

taking an action at a DOE facility. In such 

cases, DOE may refrain from issuing an NOV, 

or may mitigate, either partially or entirely, 

any proposed civil penalty, provided that the 

direction upon which the DOE contractor 

relied is documented in writing, 

contemporaneously with the direction. It 

should be emphasized, however, that 

pursuant to 10 CFR 851.7, interpretative 

ruling of a requirement of this part must be 

issued in accordance with the provisions of 

851.7 to be binding. Further, as discussed 

above in this policy statement, lack of 

funding by itself will not be considered as a 

mitigating factor in enforcement actions. 

9. Exercise of Discretion 

Because DOE wants to encourage and 

support DOE contractor initiative for prompt 

self-identification, reporting and correction 

of noncompliances, DOE may exercise 

discretion as follows: 

(a) In accordance with the previous 

discussion, DOE may refrain from issuing a 

civil penalty for a violation that meets all of 

the following criteria: 

(1) The violation is promptly identified 

and reported to DOE before DOE learns of it 

or the violation is identified by a DOE 

independent assessment, inspection or other 

formal program effort. 

(2) The violation is not willful or is not a 

violation that could reasonably be expected 

to have been prevented by the DOE 

contractor’s corrective action for a previous 

violation. 

(3) The DOE contractor, upon discovery of 

the violation, has taken or begun to take 

prompt and appropriate action to correct the 

violation. 

(4) The DOE contractor has taken, or has 

agreed to take, remedial action satisfactory to 

DOE to preclude recurrence of the violation 

and the underlying conditions that caused it. 

(b) DOE will not issue a Notice of Violation 

for cases in which the violation discovered 

by the DOE contractor cannot reasonably be 

linked to the conduct of that contractor in the 

design, construction or operation of the DOE 

facility involved, provided that prompt and 

appropriate action is taken by the DOE 

contractor upon identification of the past 

violation to report to DOE and remedy the 

problem. 

(c) In situations where corrective actions 

have been completed before termination of 

an inspection or assessment, a formal 

response from the contractor is not required 

and the inspection report serves to document 

the violation and the corrective action. 

However, in all instances, the contractor is 

required to report the noncompliance 

through established reporting mechanisms so 

the noncompliance and any corrective 

actions can be properly tracked and 

monitored. 

(d) If DOE initiates an enforcement action 

for a violation, and as part of the corrective 

action for that violation, the DOE contractor 

identifies other examples of the violation 

with the same root cause, DOE may refrain 

from initiating an additional enforcement 

action. In determining whether to exercise 

this discretion, DOE will consider whether 

the DOE contractor acted reasonably and in 

a timely manner appropriate to the severity 

of the initial violation, the 

comprehensiveness of the corrective action, 

whether the matter was reported, and 

whether the additional violation(s) 

substantially change the significance or 

character of the concern arising out of the 

initial violation. 

(e) The preceding paragraphs are examples 

indicating when enforcement discretion may 

be exercised to forego the issuance of a civil 

penalty or, in some cases, the initiation of 

any enforcement action at all. However, 

notwithstanding these examples, a civil 

penalty may be proposed or Notice of 

Violation issued when, in DOE’s judgment, 

such action is warranted. 

X. Inaccurate and Incomplete Information 

(a) A violation of the worker safety and 

health requirements to provide complete and 

accurate information to DOE, 10 CFR 851.40, 

can result in the full range of enforcement 

sanctions, depending upon the circumstances 

of the particular case and consideration of 

the factors discussed in this section. 

Violations involving inaccurate or 

incomplete information or the failure to 

provide significant information identified by 

a DOE contractor normally will be 

categorized based on the guidance in section 

IX, ‘‘Enforcement Actions.’’

(b) DOE recognizes that oral information 

may in some situations be inherently less 

reliable than written submittals because of 

the absence of an opportunity for reflection 

and management review. However, DOE 

must be able to rely on oral communications 

from officials of DOE contractors concerning 

significant information. In determining 

whether to take enforcement action for an 

oral statement, consideration will be given to 

such factors as: 

(1) The degree of knowledge that the 

communicator should have had regarding the 

matter in view of his or her position, training, 

and experience; 

(2) The opportunity and time available 

prior to the communication to assure the 

accuracy or completeness of the information; 

(3) The degree of intent or negligence, if 

any, involved; 

(4) The formality of the communication; 

(5) The reasonableness of DOE reliance on 

the information; 

(6) The importance of the information that 

was wrong or not provided; and 

(7) The reasonableness of the explanation 

for not providing complete and accurate 

information. 

(c) Absent gross negligence or willfulness, 

an incomplete or inaccurate oral statement 

normally will not be subject to enforcement 

action unless it involves significant 

information provided by an official of a DOE 

contractor. However, enforcement action may 

be taken for an unintentionally incomplete or 

inaccurate oral statement provided to DOE by 

an official of a DOE contractor or others on 

behalf of the DOE contractor, if a record was 

made of the oral information and provided to 

the DOE contractor thereby permitting an 

opportunity to correct the oral information, 

such as if a transcript of the communication 

or meeting summary containing the error was 

made available to the DOE contractor and 

was not subsequently corrected in a timely 

manner. 

(d) When a DOE contractor has corrected 

inaccurate or incomplete information, the 

decision to issue a citation for the initial 

inaccurate or incomplete information 

normally will be dependent on the 

circumstances, including the ease of 

detection of the error, the timeliness of the 

correction, whether DOE or the DOE 

contractor identified the problem with the 

communication, and whether DOE relied on 

the information prior to the correction. 

Generally, if the matter was promptly 

identified and corrected by the DOE 

contractor prior to reliance by DOE, or before 

DOE raised a question about the information, 

no enforcement action will be taken for the 

initial inaccurate or incomplete information. 

On the other hand, if the misinformation is 

identified after DOE relies on it, or after some 

question is raised regarding the accuracy of 

the information, then some enforcement 

action normally will be taken even if it is in 

fact corrected. 

(e) If the initial submission was accurate 

when made but later turns out to be 


cprice-sewell on PROD1PC66 with RULES2
6948 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 

erroneous because of newly discovered 

information or advances in technology, a 

citation normally would not be appropriate 

if, when the new information became 

available, the initial submission was 

promptly corrected. 

(f) The failure to correct inaccurate or 

incomplete information that the DOE 

contractor does not identify as significant 

normally will not constitute a separate 

violation. However, the circumstances 

surrounding the failure to correct may be 

considered relevant to the determination of 

enforcement action for the initial inaccurate 

or incomplete statement. For example, an 

unintentionally inaccurate or incomplete 

submission may be treated as a more severe 

matter if a DOE contractor later determines 

that the initial submission was in error and 

does not promptly correct it or if there were 

clear opportunities to identify the error. 

[FR Doc. 06–964 Filed 2–8–06; 8:45 am] 

BILLING CODE 6450–01–P 


cprice-sewell on PROD1PC66 with RULES2