Thursday, February 9, 2006 Part II Department of Energy 10 CFR Parts 850 and 851 Chronic Beryllium Disease Prevention Program; Worker Safety and Health Program; Final Rule cprice-sewell on PROD1PC66 with RULES2 VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\09FER2.SGM 09FER2 6858 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations DEPARTMENT OF ENERGY K. Review Under the Treasury and General safety and health regulations would give Government Appropriations Act, 2001 DOE workers a level of protection 10 CFR Parts 850 and 851 L. Congressional Notification equivalent to that afforded them when VI. Approval of the Office of the Secretary [Docket No. EH–RM–04–WSHP] section 3173 was enacted. Specifically, Introduction under the December proposal, a RIN 1901–AA99 contractor would comply with either a This final rule implements a worker safety and health program for the set of requirements based primarily on Chronic Beryllium Disease Prevention Department of Energy (DOE or the the provisions of DOE Order 440.1A Program; Worker Safety and Health Department). This program establishes ‘‘Worker Protection Management for Program the framework for a worker protection DOE Federal and Contractor AGENCY: Department of Energy program that will reduce or prevent Employees,’’ March 27, 1998 (the ACTION: Final rule. occupational injuries, illnesses, and current DOE order on worker safety and accidental losses by requiring DOE health) or a tailored set of requirements SUMMARY: The Department of Energy approved by DOE. The contractor would contractors to provide their employees’ (DOE) is today publishing a final rule to implement these requirements pursuant with safe and healthful workplaces. implement the statutory mandate of to a worker safety and health program Also, the program establishes section 3173 of the Bob Stump National approved by DOE. procedures for investigating whether a Defense Authorization Act (NDAA) for On January 8, 2004, DOE held a requirement has been violated, for Fiscal Year 2003 to establish worker televideo conference to allow DOE determining the nature and extent of safety and health regulations to govern employees, DOE contractors, contractor such violation, and for imposing an contractor activities at DOE sites. This employees, and employee appropriate remedy. program codifies and enhances the representatives to become familiar with In December 2002, Congress directed worker protection program in operation the proposal. DOE held public hearings DOE to promulgate regulations on when the NDAA was enacted. on the proposal in Washington, DC, on worker safety and health regulations to EFFECTIVE DATE: This rule is effective cover contractors with Price-Anderson January 21, 2004, and in Golden, February 9, 2007. The incorporation by indemnification agreements in their Colorado, via televideo on February 4, reference of certain publications listed contracts. Specifically, section 3173 of 2004. In addition to the oral comments in this rule is approved by the Director the National Defense Authorization Act at the public hearings, DOE received of the Federal Register as of February 9, (NDAA) amended the Atomic Energy approximately 50 written comments on 2007. Act (AEA) to add section 234C (codified the December proposal. FOR FURTHER INFORMATION CONTACT: as 42 U.S.C. 2282c), which requires DOE After becoming aware that the Jacqueline D. Rogers, U.S. Department to promulgate worker safety and health Defense Nuclear Facilities Safety Board of Energy, Office of Environment, Safety regulations that maintain ‘‘the level of (DNFSB), which has safety oversight and Health, EH–52, 1000 Independence protection currently provided to * * * responsibility with regard to DOE Avenue, SW., Washington, DC 20585, workers.’’ See Public Law 107–314 nuclear facilities, had concerns about 202–586–4714. (December 2, 2002). These regulations the proposed rule, DOE suspended the SUPPLEMENTARY INFORMATION: are to include flexibility to tailor rulemaking by publishing a notice in the I. Introduction implementation to reflect activities and Federal Register on February 27, 2004 II. Legal Authority and Relationship to Other hazards associated with a particular (69 FR 9277). DOE stated in that notice Regulatory Programs that DOE would consult with the A. Legal Authority work environment; to take into account B. Relationship to Other Regulatory special circumstances for facilities DNFSB in order to resolve its concerns, Programs permanently closed or demolished, or and also that it would consider views III. Overview of the Final Rule which title is expected to be transferred; received from other stakeholders on its IV. Section-by-Section Discussion of and to achieve national security proposal. Comments and Rule Provisions missions in an efficient and timely As a result of its consultation with the A. Subpart A—General Provisions manner (42 U.S.C. 2282c(3)). Section DNFSB and consideration of other B. Subpart B—Program Requirements comments, DOE published a 234C also makes a DOE contractor with C. Subpart C—Specific Program Requirements such an indemnification agreement that supplemental notice of proposed D. Subpart D—Variances violates these regulations subject to civil rulemaking (SNOPR) in the Federal E. Subpart E—Enforcement Process penalties similar to the authority Register (70 FR 3812) on January 26, F. Appendix A—Worker Safety and Health Congress granted to DOE in 1988 with 2005. The SNOPR proposed to (1) codify Functional Areas respect to civil penalties for violations a minimum set of safety and health G. Appendix B—General Statement of of nuclear safety regulations. Section requirements with which contractors Enforcement Policy 234C also directs DOE to insert in such would have to comply; (2) establish a V. Procedural Review Requirements formal exemption process which would contracts a clause providing for A. Review Under Executive Order 12866 B. Review Under Executive Order 12988 reducing contractor fees and other require approval by the Secretarial C. Review Under Executive Order 13132 payments if the contractor or a Officer with line management D. Review Under Executive Order 13175 contractor employee violates any responsibility and which would provide E. Review Under the Regulatory Flexibility regulation promulgated under section significant involvement of the Assistant Act 234C, while specifying that both Secretary for Environment, Safety and F. Review Under the Paperwork Reduction sanctions may not be used for the same Health; (3) delineate the role of the Act violation. worker health and safety program and cprice-sewell on PROD1PC66 with RULES2 G. Review Under the National On December 8, 2003, DOE published its relationship to integrated safety Environmental Policy Act H. Review Under the Unfunded Mandates a notice of proposed rulemaking (NOPR) management; (4) set forth the general Reform Act to implement section 3173 of the NDAA duties of contractors responsible for I. Review Under Executive Order 13211 (68 FR 68276). The December proposal DOE workplaces; and (5) limit the scope J. Review Under the Treasury and General was intended to codify existing DOE of the regulations to contractor activities Government Appropriations Act, 1999 practices in order to ensure the worker and DOE sites. VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6859 On March 23, 2005, DOE held a U.S.C. 7151(a); Sec. 641 of DOEOA, 42 procurement regulations. See 48 CFR televideo forum to provide DOE U.S.C. 7251; and Sec. 644 of DOEOA, 42 952.223–71, 970.5223–1. contractors, contractor employees, and U.S.C. 7254. Overview of DOE Order 440.1A. DOE their representatives with the Order 440.1A establishes a B. Relationship to Other Regulatory comprehensive worker protection opportunity to ask questions and receive Programs clarification on the provisions of the program that provides the basic supplemental proposed rule. The public DOE (like its predecessors, AEC and framework necessary for contractors to comment period for the supplemental ERDA) has implemented this authority ensure the safety and health of their proposal ended on April 26, 2005. in a comprehensive manner by workforce. In short, the Order provides During this period, DOE received 62 incorporating appropriate provisions on a well-integrated, cost-effective, comment letters from private worker safety and health into the performance-based program designed to individuals, DOE contractors, other contracts under which work is ensure contractors recognize hazards, Federal agencies, and trade associations performed at DOE workplaces. During prevent accidents before they happen, in response to the supplemental the past decade, DOE has taken steps to and protect the lives and well-being of proposal. In addition, public hearings ensure that contractual provisions on their employees. were held on March 29 and 30, 2005, in worker safety and health are tailored to Such ‘‘corporate’’ programs have long Washington, DC. Responding to a reflect particular workplace been recognized by private industry as request from the Paper, Allied- environments. In particular, the the most effective and efficient means to Industrial, Chemical and Energy ‘‘Integration of Environment, Health and protect worker health and safety on the Workers International Union, DOE also Safety into Work Planning and job. Where applied, these programs have held a public hearing on April 21, 2005, Execution’’ clause set forth in the DOE consistently resulted in enhanced in Richland, Washington, via televideo. procurement regulations requires DOE worker protection, decreased worker’s DOE has carefully considered the contractors to establish an integrated compensation premiums, increased comments and data from interested safety management system (ISMS). See productivity and employee morale, parties, and other information relevant 48 Code of Federal Regulations (CFR) declines in absenteeism and employee to the subject of the rulemaking. 952.223–71 and 970.5223–1. As part of turnover, and decreased employer this process, a contractor must define liability. The Occupational Safety and II. Legal Authority and Relationship to the work to be performed, analyze the Health Administration (OSHA) Other Regulatory Programs potential hazards associated with the recognized the effectiveness of such A. Legal Authority work, and identify a set of standards programs in its Safety and Health and controls that are sufficient to ensure Program Management Guidelines DOE has broad authority to regulate safety and health if implemented (published in 1989), which were worker safety and health with respect to properly. The identified standards and derived from the safety and health its nuclear and nonnuclear functions controls are incorporated as contractual programs of private industry firms with pursuant to the Atomic Energy Act of requirements through the ‘‘Laws, the best safety and health performance 1954 (AEA), 42 U.S.C. 2011 et seq.; the Regulations and DOE Directives’’ clause records. DOE Order 440.1A program Energy Reorganization Act of 1974 set forth in the DOE procurement requirements are organized and (ERA), 42 U.S.C. 5801–5911; and the regulations. See 48 CFR 970.0470–2 and consistent with the four basic program Department of Energy Organization Act 970.5204–2. elements of OSHA’s Guidelines on (DOEOA), 42 U.S.C. 7101–7352. Currently DOE Order 440.1A, Workplace Safety and Health Specifically, the AEA authorized and ‘‘Worker Protection Management for Management (i.e., (1) management directed the Atomic Energy Commission DOE Federal and Contractor commitment and employee (AEC) to protect health and promote Employees,’’ establishes requirements involvement, (2) worksite analysis, (3) safety during the performance of for a worker safety and health program. hazard prevention and control, and (4) activities under the AEA. See Sec. A DOE contractor with DOE Order training). 31a.(5) of AEA, 42 U.S.C. 2051(a)(5); 440.1A in its contract must have a DOE Order 440.1A specifically Sec. 161b. of AEA, 42 U.S.C 2201(b); worker protection program as stipulated requires contractors to implement a Sec. 161i.(3) of AEA, 42 U.S.C. by the Contractor Requirements written worker protection program that 2201(i)(3); and Sec. 161p. of AEA, 42 Document (CRD) that accompanies the describes site-specific methods for U.S.C. 2201(p). The ERA abolished the order. DOE applies these requirements complying with the requirements of the AEC and replaced it with the Nuclear through the incorporation of the CRD order; establish written policies, goals, Regulatory Commission (NRC), which into relevant DOE contracts. In and objectives to provide a focus for, became responsible for the licensing of accordance with the CRD, contractors and foster continual improvement of, commercial nuclear activities, and the must implement a written worker their worker protection programs; and Energy Research and Development protection program that integrates the identify existing and potential Administration (ERDA), which became performance-based requirements workplace hazards, evaluate associated responsible for the other functions of outlined in the CRD. A series of risks, and implement appropriate risk- the AEC under the AEA, as well as implementation guides and technical based controls. In addition, the order several nonnuclear functions. The ERA standards are available to assist DOE establishes (1) worker rights and authorized ERDA to use the regulatory contractors in developing and responsibilities that are consistent with authority under the AEA to carry out its implementing a worker protection those afforded to private industry nuclear and nonnuclear function, program that will meet the intent of the employees through Federal regulations including those functions that might performance-based requirements. and (2) baseline safety and health cprice-sewell on PROD1PC66 with RULES2 become vested in ERDA in the future. Also, DOE contractors are required to requirements in specific technical See Sec. 105(a) of ERA, 42 U.S.C. implement a worker safety and health disciplines. 5815(a); and Sec. 107 of ERA, 42 U.S.C. program that is consistent with the The order encompasses all worker 5817. The DOEOA transferred the ‘‘Integration of Environment, Health and protection disciplines, including functions and authorities of ERDA to Safety into Work Planning and occupational safety, industrial hygiene, DOE. See Sec. 301(a) of DOEOA, 42 Execution’’ clause set forth in the DOE fire protection (worker protection VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 6860 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations aspects only), construction safety, (7) Operations authorization. The existing and effective comprehensive explosives safety, contractor conditions and requirements to be worker protection programs that have occupational medical care, pressure satisfied for operations to be initiated been implemented by contractors at safety, firearms safety, and motor and conducted must be clearly DOE sites; (2) to minimize the burden vehicle safety. Where necessary, the established and agreed-upon. on DOE contractors by clarifying that order cross-references related elements The five core functions of ISM are: (1) contractors need not establish of other orders—such as training, Define the scope of work; (2) identify redundant worker protection programs accident investigation, and safety and and analyze hazards associated with the to comply with the proposed rule; and health reporting orders—without work; (3) develop and implement (3) to build on a successful program, duplicating their respective hazard controls; (4) perform work given that DOE Order 440.1A has been requirements. within controls; and (5) provide successfully and effectively Overview of Integrated Safety feedback on adequacy of controls and implemented by DOE contractors for Management (ISM). A major concept of continue to improve safety management. close to a decade. DOE believes that ISM is the integration of safety Consistency with DOE Order 440.1A basing this rule on DOE Order 440.1A awareness and good practices into all and Integrated System Management. is consistent with section 234C of the aspects of work conducted at DOE. This final rule builds on existing NDAA which directs the Department to Simply stated, work should be contract practices and processes to promulgate regulations which provide a conducted in such a manner that achieve safe and healthful workplaces. level of protection that is ‘‘substantially protects workers and other people, and The rule is intended to be equivalent to the level of protection does not cause harm to the complementary to DOE Order 440.1A currently provided to’’ these workers environment. Safety is an integral part and ISM. Accordingly, DOE expects (41 U.S.C. 2282c(a)(1)). Consistent with of each job, not a stand-alone program. contractors to comply with the DOE Order 440.1A, this final rule ISM has seven guiding principles and requirements of this rule in a manner establishes requirements for an effective five core functions. The seven guiding that takes advantage of work already worker safety and health program that principles of ISM are: done as part of DOE Order 440.1A and will reduce or prevent injuries, (1) Line management responsibility. ISM and to minimize duplicative or illnesses, and accidental losses by Line management is directly responsible otherwise unnecessary work. providing DOE contractors and their for the protection of the public, the As a general matter, DOE expects that, workers with a safe and healthful workers, and the environment. As a if contractors at a DOE site have fulfilled workplace. complement to line management, the their contractual responsibilities for In basing the final rule on DOE Order Office of Environment, Safety and DOE Order 440.1A and ISM properly, 440.1A, DOE intends to take advantage Health (EH) provides safety policy, little, if any, additional work will be of the existing series of implementation enforcement, and independent oversight necessary to implement the written guides developed to assist DOE functions. worker safety and health program contractors in implementing the (2) Clear roles and responsibilities. required by this regulation. Contractors provisions of DOE Order 440.1A. Clear and unambiguous lines of should undertake new analyses and Shortly after publication of this rule, authority and responsibility for ensuring develop new documents only to the DOE expects to publish updated safety must be established and extent existing analyses and documents implementation guides revised to maintained at all organized levels are not sufficient for purposes of this specifically address the provisions of within the Department and its regulation. In determining the the final rule. Consistent with their use contractors. allowability of costs incurred by under DOE Order 440.1A, these updated (3) Competence commensurate with contractors to develop approved worker guides will provide supplemental the responsibility. Personnel must safety and health programs, the information and describe acceptable possess the experience, knowledge, Department will consider whether the methods for implementing the skills, and abilities that are necessary to amount and nature of a contractor’s performance-based requirements of the discharge their responsibilities. expenditures are necessary and rule. DOE contractors are free to use the (4) Balanced priorities. Resources reasonable in light of the fact that the guidance provided in these non- must be effectively allocated to address contractor has an approved ISM system mandatory documents or to develop and safety, programmatic, and operational in place. implement their own unique methods considerations. Protecting the public, for compliance, provided that these the workers, and the environment must III. Overview of the Final Rule methods afford workers a level of be a priority whenever activities are This final rule codifies the protection equal to or greater than that planned and performed. Department’s worker protection which would satisfy the rule’s (5) Identification of safety standards program requirements established in requirements. DOE believes that the and requirements. Before work is DOE Order 440.1A, ‘‘Worker Protection availability of these updated guides will performed, the associated hazards must Management for DOE Federal and also further assist in ensuring a seamless be evaluated and an agreed-upon set of Contractor Employees.’’ Consistent with transition from coverage under DOE safety standards and requirements must the intent of Congress, DOE Order Order 440.1A to regulation under 10 be established which, if properly 440.1A forms the basis for the rule’s CFR part 851. implemented, will provide adequate substantive requirements. The To ensure appropriate enforcement of assurance that the public, the workers, Conference Committee for the NDAA the worker safety and health program and the environment are protected from recognized that contractors currently the rule also establishes requirements adverse consequences. operate under this order, ‘‘which and procedures for investigating the cprice-sewell on PROD1PC66 with RULES2 (6) Hazard control tailored to work provides an adequate level of safety.’’ nature and extent of a violation, being performed. Administrative and (Conference Report 107–772, November determining whether a violation has engineering controls to prevent and 12, 2002, at 797.) occurred, and imposing an appropriate mitigate hazards must be tailored to the The Department has structured the remedy. work being performed and the final rule this way for three main The Department has made changes in associated hazards. reasons: (1) To take advantage of this final rule after considering the VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6861 concerns of the commenters with the more closely reflect the requirements of applicability of the rule, defines terms supplemental notice of proposed DOE Order 440.1A. that are critical to the rule’s application rulemaking published in the Federal (4) The final rule recognizes the value and implementation, and establishes Register on January 26, 2005 (70 FR of a central technical authority and the contractor responsibilities for executing 3812). The principal changes are as importance of senior DOE management the rule. Subpart B establishes program follows: involvement. The Assistant Secretary requirements to develop and maintain a (1) The final rule codifies key worker for Environment, Safety and Health has worker safety and health program and to safety and health standards from DOE played a central role in the development perform safety and health activities in Order 440.1A with which contractors of the final rule and will continue to accordance with the approved program. must comply. play a central role in its implementation Subpart C establishes provisions that (2) The final rule establishes a formal and enforcement. In addition to focus on management responsibilities variance process that requires approval providing technical guidance and and worker rights, protecting the worker by the Under Secretary with line assistance, the Assistant Secretary is from the effects of safety and health management responsibility for the responsible for recommending to the hazards by requiring hazard contractor that is requesting the Under Secretary whether to grant or identification and assessment, hazard variance, after considering the deny a variance. The Office of Price- prevention and abatement, specific recommendations of the Assistant Anderson Enforcement, which reports regulatory requirements, functional Secretary for Environment Safety and to the Assistant Secretary, is responsible areas provisions, recordkeeping and Health. The rule adds detailed for investigating potential violations and program evaluations. Subpart D procedures in (Subpart D) whereby a deciding whether to take certain establishes the criteria and procedures contractor can obtain a variance from a enforcement actions against the for requesting a variance. Subpart E specific worker safety and health contractor, including the imposition of establishes the enforcement process. standard or a portion of the standard. civil penalties for all facilities. The final These procedures will ensure that rule makes the Under Secretary with To ensure that the Department variances are only granted where line management responsibility for a captured the entire list of contractor warranted and where an equivalent contractor responsible for deciding requirements specified in DOE Order level of protection is provided through whether to grant a variance to the 440.1A, the Department developed a other means. contractor. ‘‘crosswalk’’ of the requirements in the (3) The final rule establishes updates The provisions of the rule are current DOE order and the final to functional areas. These updates are presented in five main subparts. Subpart provisions of 10 CFR part 851. See Table intended to ensure the function areas A describes the scope, purpose, and 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, .24 Functional areas. the requirements for the specific functional areas that are addressed in paragraphs 14 through 22 apply only if the contractor is involved in these activities. 1. Implement a written worker 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 .10(a)(1) General requirements. are causing or are likely to cause death or serious physical harm to employees; and. 1.b. Integrates all requirements contained in this attachment and other .11(a)(3) (ii) Preparation and submission of worker safety and health related site-specific worker protection activities. program. 2. Establish written policy, goals, and objectives for the worker protec- .20(a)(1) Management responsibilities. tion program. 3. Use qualified worker protection staff to direct and manage the work- .20(a)(2) Management responsibilities. er protection program. 4. Assign worker protection responsibilities, evaluate personnel per- .20(a)(3) Management responsibilities. formance, and hold personnel accountable for worker protection per- formance. 5. Encourage employee involvement in the development of program .20(a)(4) Management responsibilities. goals, objective, and performance measures and in the identification and control of hazards in the workplace. 6. Provide workers the right, without reprisal, to: .................................... .20(a)(6) Management responsibilities. cprice-sewell on PROD1PC66 with RULES2 6.a. Accompany DOE worker protection personnel during workplace in- .20(b)(5) Worker rights. spections;. 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. VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 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 be- .20(b)(8) Worker rights. lief that, under the circumstances, the task poses an imminent risk of death or serious bodily harm to that individual, coupled with a rea- sonable belief that there is insufficient time to seek effective redress through the normal hazard reporting and abatement procedures es- tablished in accordance with the requirements herein;. 6e. Have access to DOE worker protection publications, DOE-pre- .20(b)(2) (i)–(ii) Worker rights. scribed standards, and the organization’s own protection standards or procedures applicable to the workplace;. 6.f. Observe monitoring or measuring of hazardous agents and have .20(b)(4) Worker rights. access to the results of exposure monitoring;. 6.g. Be notified when monitoring results indicate they were over- .20(b)(3) Worker rights exposed to hazardous materials; and. 6.h. Receive results of inspections and accident investigations upon re- .20(b)(6) Worker rights quest. 7. Implement procedures to allow workers, through their supervisors, to .20(a)(9) Management responsibilities. stop work when they discover employee exposures to imminent dan- ger conditions or other serious hazards. The procedure shall ensure that any stop work authority is exercised in a justifiable and respon- sible manner. 8. Inform workers of their rights and responsibilities by appropriate .20(a)(10) Management responsibilities. means, including posting the appropriate DOE Worker Protection Poster in the workplace where it is accessible to all workers. 9. Identify existing and potential workplace hazards and evaluate the .21(a) Hazard identification and assessment. risk of associated worker injury and illness. 9.a. Analyze or review: (1) Designs for new facilities and modifications .21(a)(4)–(5) Hazard identification and assessment. to existing facilities and equipment; (2) Operations and procedures; and (3) Equipment, product and service needs. 9.b. Assess worker exposure to chemical, physical, biological, or ergo- .21(a)(1)–(3) Hazard identification and assessment [Moved to guid- nomic hazards through appropriate workplace monitoring (including ance document.] personal, area, wipe, and bulk sampling); biological monitoring; and observation. Monitoring results shall be recorded [Documentation shall describe the tasks and locations where monitoring occurred, identify workers monitored or represented by the monitoring, and identify the sampling methods and durations, control measures in place during monitoring (including the use of personal protective equipment), and any other factors that may have affected sampling results.]. 9.c. Evaluate workplaces and activities (accomplished routinely by .21(a)(5) Hazard identification and assessment. workers, supervisors, and managers and periodically by qualified worker protection professionals). 9.d. Report and investigate accidents, injuries and illnesses and ana- .26(d) Recordkeeping and reporting. lyze related data for trends and lessons learned (reference DOE Order 210.1). 10. Implement a hazard control prevention/abatement process to en- .22(a) Hazard prevention and abatement. sure that all identified hazards are managed through final abatement or control. 10.a. For hazards identified either in the facility design or during the .22(a)(1) Hazard prevention and abatement. development of procedures, control shall be incorporated in the ap- propriate facility design or procedure. 10.b. For existing hazards identified in the workplace, abatement ac- .22(a)(2) (i), (ii), & (iii) Hazard prevention and abatement. tions prioritized according to risk to the worker shall be promptly im- plemented, interim protective measures shall be implemented pend- ing final abatement, and workers shall be protected immediately from imminent danger conditions. 10.c. Hazards shall be addressed when selecting or purchasing equip- .22(c) Hazard prevention and abatement. ment, products, and services. 10.d. Hazard control methods shall be selected based on the following .22(b)(2)–(4) Hazard prevention and abatement. hierarchy: (1) Engineering control (2) Work practices and administra- tive controls that limit worker exposure (3) Personal protective equip- ment. 11. Provide workers, supervisors, managers, visitors, and worker pro- .25 Information and training. tection professionals with worker protection training. cprice-sewell on PROD1PC66 with RULES2 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, ‘‘Occu- .23(a)(3) Safety and health standards. pational 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 .23(a)(6) Safety and health standards. Longshoring’’. VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 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 Con- .23(a)(7) Safety and health standards. struction’’. 12.f. Title 29 CFR, Part 1928, ‘‘Occupational Safety and Health Stand- .23(a)(8) Safety and health standards. ards for Agriculture’’. 12.g. American Conference of Governmental Industrial Hygienists .23(a)(9) Safety and health standards. (ACGIH), ‘‘Threshold Limit Values for Chemical Substances and Physical Agents and Biological Exposure Indices’’ when the ACGIH Threshold Limit Values (TLVs) are lower (more protective) than per- missible exposure limits in 29 CFR 1910. When the ACGIH TLVs are used as exposure limits, contractors must nonetheless comply with the other provisions of any applicable expanded health standard found in 29 CFR 1910. 12.h. American National Standards Institute (ANSI) Z136.1, ‘‘Safe Use .23(a)(11) Safety and health standards. of Lasers’’. 12.i. ANSI Z88.2, ‘‘American National Standard Practices for Res- .23(a)(10) Safety and health standards. piratory Protection’’. 12.j. ANSI Z49.1, ‘‘Safety in Welding, Cutting and Allied Processes,’’ .23(a)(12) Safety and health standards. sections 4.3 and E4.3 (of the 1994 edition or equivalent sections of subsequent editions). 12.k. National Fire Protection Association (NFPA) 70, ‘‘National Elec- .23(a)(14) Safety and health standards. trical Codes’’. 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 ap- plicable). 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 notice of proposed rulemaking. To aid the final rule to the corresponding reformatted and renumbered in this in tracking the provisions of both sections in the supplemental notice of final rule, creating differences between documents, the Department has proposed rulemaking. See Table 2. it and the published supplemental included a table comparing sections in 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. cprice-sewell on PROD1PC66 with RULES2 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. VerDate Aug<31>2005 14:54 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 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 851.101 Approval and maintenance of the worker safety and health program. 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 respon- 851.10 Worker rights. sibilities. 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 Subpart C—Safety and Health Requirements FUNCTIONAL AREAS. (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 APPENDIX A TO PART 851—GENERAL STATEMENT OF ENFORCEMENT POLICY ENFORCEMENT POLICY cprice-sewell on PROD1PC66 with RULES2 IV. Section-by-Section Discussion of material for some final rule provisions this section. However, some non- Comments and Rule Provisions in order to provide interpretive substantive changes, such as guidance to DOE contractors that must renumbering of paragraphs and minor This section of the Supplementary Information responds to significant comply with this rule. All substantive changes clarifying the meanings of rule comments on specific proposed rule changes from the supplemental notice of provisions are not discussed. provisions. It contains explanatory proposed rulemaking are explained in VerDate Aug<31>2005 14:54 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6865 DOE has determined that the during the pubic comment period (EPA), OSHA, DOE, Nuclear Regulatory requirements set forth in this rule are including those comments received Commission (NRC), Defense Nuclear those which are necessary to provide a from health and safety professionals Facilities Safety Board (DNFSB), Price- safe and healthful workplace for DOE from other organizations. Anderson Amendment Act (PAAA), contractors and their workers. Two commenters (Ex. 44, 60) urged DOE’s Office of Independent Oversight The majority of the comments DOE to begin the process of staffing, and Performance Assurance, etc., received during the public comment training, and setting forth resource compliance groups to form an ‘‘Agency period addressed specific provisions or requirements in order to implement this of Oversight and Compliance’’ to subparts (e.g., scope and exclusions, rule in a timely manner. DOE notes, provide coordinated, synergistic, and enforcement process, program however, that the rule is based largely comprehensive oversight. Both requirements, exemption process, and on the provisions of DOE Order 440.1A. suggestions, however, go beyond the consensus standards) of the As a result, existing staff within DOE statutory mandate of section 3173 of the supplemental proposed rule. Each of will be capable of performing NDAA and the scope of this rulemaking these comments is discussed in detail Departmental actions necessary to effort. Moreover, the Department lacks below in the discussion of the implement the rule. the authority and jurisdiction to corresponding section of the rule. One commenter (Ex. 37) asserted that implement these suggestions. Several commenters, however, the health and safety framework expressed more general concerns established under the rule is unlike the A. Subpart A—General Provisions regarding the entire proposed rule. For health and safety provisions applicable Section 851.1—Scope and Purpose instance, a few commenters (Exs. 20, 27, to all other facilities in the country that 48) expressed concern regarding a are subject to OSHA jurisdiction. This The worker safety and health program perceived lack of detail in the proposed commenter felt that such a discrepancy required by this rule establishes the rule. One of these commenter (Ex. 20) would discourage talented health and framework for a comprehensive program felt that terms such as ‘‘reasonable,’’ safety professionals from working at that will reduce or prevent injuries, ‘‘any,’’ ‘‘all,’’ ‘‘significant,’’ ‘‘adequate,’’ DOE facilities because of the prospect of illnesses, and accidental losses by ‘‘near miss,’’ ‘‘potential,’’ learning a regulatory scheme that does providing DOE contractors and their ‘‘comprehensive,’’ and ‘‘general’’ used not apply elsewhere. The commenter workers with a safe and healthful throughout the rule were too subjective argued that ‘‘the best and the brightest’’ workplace. DOE has structured the rule to ensure consistency in contractor health and safety professionals would this way for two main reasons: (1) To programs and enforcement. Another be hoping to acquire transferable skills. take advantage of existing and effective commenter (Exs. 48) believed that the DOE disagrees with this commenter. comprehensive worker protection proposed rule was not sufficiently The provisions of the final rule stem programs that have been implemented developed and many processes and directly from DOE Order 440.1A which at DOE facilities and (2) to minimize the required guidance materials have either was modeled after OSHA’s Safety and burden on contractors by clarifying that not yet been developed or have not been Health Program Management they need not establish redundant adequately described. This commenter Guidelines. OSHA derived these worker protection programs to protect also felt that the proposed regulation as guidelines from the safety and health workers from occupational safety and currently written would represent a program of private industry firms with health hazards. shift in safety emphasis from the the best safety and health performance Section 851.1(a) establishes the scope positive influence, as described by the records. OSHA encourages all of this regulation. The worker safety and Integrated Safety Management System employers to implement these health requirements in this part govern (ISMS), to a negative, enforcement- guidelines and recognizes the the conduct of activities by DOE based culture. The commenter accomplishments of the best performers contractors at DOE sites. As clarified in recommended that DOE consult with in safety and health through its the definition of ‘‘contractor’’ (section safety and health professionals within Voluntary Protection Program (VPP). As 851.3), DOE’s intent is that the DOE, in other government agencies such a result, DOE believes that the safety contractors covered under this rule as OSHA, and in private industry when and health program required under this include any entity under contract to preparing the final rule. The third rule will continue to promote safety and perform activities at a DOE site in commenter (Ex. 27) argued that the health excellence among DOE furtherance of a DOE mission, including ‘‘level of protection’’ required under contractors and will in fact attract ‘‘well subcontractors at any tier. section 3173 of the NDAA must be qualified’’ safety and health One commenter (Ex. 6) suggested the defined in the rule to allow contractor professionals. rule should apply only to defense compliance. One commenter (Ex. 6) expressed nuclear facilities. DOE notes that the DOE has carefully reviewed the rule concern that the proposed rule did not legislation, section 3173 of the NDAA is in light of these comments and other respond to past Inspector General (IG) not limited to defense nuclear facilities. more specific comments received during and Government Accountability Office A few commenters (Exs. 28, 45, 51) the public comment period and has (GAO) reports recommending that DOE observed that section 3173 of the NDAA attempted to address those requesting National Laboratories transition to only applies to contractors covered by clarification or further detail through external OSHA regulation. The agreements of indemnification under either revisions to the text of the final commenter recommended that DOE section 170d. of the AEA. The rule or through clarification in this compare the proposed rule with commenters suggested that part 851 preamble discussion. DOE also intends previous external IG and GAO reports should not exceed this statutory to publish appropriate guidance regarding regulation of DOE National mandate and should only apply to such cprice-sewell on PROD1PC66 with RULES2 materials to further assist contractors Laboratories. This same commenter also contractors. Presumably since with implementation. DOE notes that asserted that there is a need for a ‘‘contractual enforcement under this final rule is the result of extensive centralized enforcement (compliance) proposed rule section 851.4(b) would coordination within the DOE safety and agency, and suggested that DOE follow only be available against prime health community and the careful the Great Britain model and combine contractors and not subcontractors,’’ consideration of all comments received the Environmental Protection Agency these commenters argued that, ‘‘the rule VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 6866 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations should only apply to contractors deleting ‘‘subcontractors’’ from the DOE sees no cause for concern, covered by agreement of applicability or reducing the impact of however, since both programs stem from indemnification,’’ amending the Nuclear the rule on subcontractors. DOE Order 440.1A, and there has been Hazards Indemnity Agreement (NHIA) Subcontractors must implement the no need for such conflict resolution in order to put contractors on notice of requirements of the rule for covered provisions under that order. DOE civil and contract penalties for violation workplaces for which they are believes both programs are consistent of DOE worker safety and health rules. responsible and, in other situations, act with and complementary to each other. Although DOE recognizes that section consistently with applicable regulations One commenter (Ex. 29) raised the 234C of the AEA only mandates and worker safety and health standards. question of whether DOE would contractors covered by agreements of One commenter (Ex. 39) suggested consider ‘‘exempting’’ management and indemnification, DOE has decided to that the rule could be interpreted as operating contractors from civil cover all of its contractors to ensure applying to employees of DOE tenant penalties for violations committed by consistency in the protection of workers organizations performing work on a other site contractors. DOE notes that throughout the DOE complex. As DOE site. The commenter observed that the rule requires identification, described in Section II of this contractors cannot impose or enforce evaluation and abatement of identified Supplementary Information, DOE has the worker safety and health hazards, so that contractors are aware of broad authority to regulate worker safety requirements of this rule on tenants if the hazards in the covered workplace and health with respect to nuclear and they do not maintain a contractual and respond appropriately. In addition, nonnuclear functions, and it is not relationship with them. DOE does not future enforcement guidance limited to the authority in section 234C. intend the rule to cover persons who are supplements will provide voluntary While the regulations cover all not performing work in furtherance of a reporting thresholds. If the Office of contractors, the authority to impose DOE mission. To clarify this intent, DOE Price-Anderson Enforcement becomes civil penalties is limited to those has revised the definitions of ‘‘covered involved with a specific covered by agreements of indemnity. workplace’’ and ‘‘contractor’’ to limit noncompliance, they will evaluate the Several commenters (Exs. 39, 49, 61) their scope to situations in which work circumstances surrounding the questioned who would be held is being performed in furtherance of a noncompliance, determine responsible for worker safety and health DOE mission. Thus the rule does not responsibility, and take appropriate on DOE-leased sites in those areas apply to a person restocking a vending enforcement actions in accordance with outside the control of the contractor but machine. Likewise, the rule does not provisions of this rule. The process of where the contractor may perform work. apply to DOE tenant organizations, discovery and evaluation of evidence One commenter (Ex. 49) suggested that except to the extent it had a contractual has been used in the enforcement of under the rule, facility worker safety obligation to perform work in nuclear safety requirements and is and health requirements should not furtherance of a DOE mission. conducted in accordance with the rule apply to leased facilities to the extent One commenter (Ex. 39) sought of law. As a result, there is no need for they are regulated under State or local clarification of whether ‘‘work done on exemptions from penalties as requested regulations. However, the commenter public or private property off the by the commenter. argued, the rule’s program requirements reservation by a DOE Prime Contractor’’ One commenter (Ex. 40) should continue to apply to DOE is covered under the rule. The rule recommended broadening the contractors at these leased facilities. applies to work performed at a DOE site. applicability of the rule to include DOE intends for all contractors on a DOE has clarified in the definition of construction workers employed by work site to establish and maintain a ‘‘DOE site’’ to include a location that subcontractors that come onto DOE sites worker safety and health program for DOE controls through exercise of its for limited periods of time to perform the workplaces for which each AEA authority, even if DOE does not maintenance, renovation, repair and contractor is responsible as required in own or lease the location. If DOE does demolition tasks. DOE notes that final rule section 851.11(a)(2)(ii). In not exercise control under the AEA, Appendix A section 1, ‘‘Construction addition, contractors on a site must section 4(b)(2) exemption of the OSHA Safety’’ covers construction contractors coordinate with other contractors Act would not apply and OSHA would (including subcontractors) and their responsible for work at the covered be responsible for regulating safety and employees in situations suggested by workplaces to ensure that there are clear health. DOE has also clarified the scope exhibit 40. roles, responsibilities and procedures section to make clear that off-site Section 851.1(b) establishes the that will ensure the safety and health of transportation is not covered by the purpose of the rule, which is to workers on multi-contractor workplaces. rule. delineate the requirements and DOE further intends to develop One commenter (Ex. 29) sought procedures associated with the worker Enforcement Guidance Supplements clarification of whether the rule would safety and health program. Section based in part on OSHA’s multi- apply to Federal employees at a covered 851.1(b)(1) clarifies that the rule employer worksite policies to guide worksite. DOE notes that the rule will establishes the requirements for an enforcement efforts on multi-employer not apply to Federal employees since effective worker safety and health worksites. DOE notes that final rule Federal employees are covered under program, which will reduce or prevent section 851.1(a) clarifies that the rule OSHA standards at 29 CFR 1960 (Basic injuries, illnesses, and accidental losses applies to the conduct of contractor Program Elements for Federal Employee by providing workers with a safe and activities at DOE sites, and section 851.3 Occupational Safety and Health healthful workplace. clarifies that DOE sites include not only Programs and Related Matters) as well Two commenters (Exs. 36, 42) locations leased or owned by DOE, but as Executive Order 12196 (Occupational contended that the purpose of the cprice-sewell on PROD1PC66 with RULES2 also locations controlled by DOE Safety and Health Programs for Federal proposed rule—is to provide through the exercise of its regulatory Employees). Another commenter (Ex. ‘‘reasonable assurance’’ that workers are authority. 20) suggested the rule include ‘‘adequately protected’’ from identified Two commenters (Exs. 15, 37) provisions for resolving conflicts hazards—is distinctly different from expressed concern over application of between Part 851 and the Federal supplemental proposed rule section the rule to subcontractors and favored occupational safety and health program. 851.4(a) which requires a contractor to VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6867 ‘‘ensure’’ that the workplace is ‘‘free achieve the objectives in the OSHA Act provisions outlined in the specified from’’ recognized hazards. The and DOE Order 440.1 to have contract. commenters expressed concern that the workplaces free from hazards causing or DOE received numerous comments on phrase ‘‘free from recognized hazards’’ likely to cause serious bodily harm or the exclusion clause for work conducted differed from ‘‘adequate protection,’’ death. DOE views these objectives as at OSHA-regulated DOE sites. Several and favored use of the term ‘‘reasonable complementary and has rewritten the commenters (Exs. 15, 16, 25, 29, 42, 49) assurance’’ as an appropriate and general rule to clearly identify both proposed that facilities transferred to achievable standard. DOE notes, the objectives. OSHA jurisdiction in the future should reference to ‘‘adequately protected’’ is to Section 851.1(b)(2) clarifies that the also be covered under the OSHA emphasize that the rule is intended to rule establishes appropriate provisions exclusion of the rule. DOE fulfill DOE’s responsibilities under the for investigating the nature and extent of acknowledges the commenters AEA. The reference to ‘‘reasonable a violation of the requirements, for recommendation and has reworded this assurance’’ is to identify the standard to determining whether a violation of a provision in the final rule to clarify that be achieved. In revising the rule, DOE requirement has occurred, and for the rule does not apply to work at a DOE has moved these references from the imposing an appropriate remedy. DOE site that is regulated by OSHA (i.e., as section on purpose to the section on the received no comments on the soon as a site is transferred to OSHA, general rule and specifically to the corresponding provision of the work on that site no longer falls within subsection on the worker safety and supplemental proposed rule during the the scope of the rule). health program. public comment period. One commenter (Ex. 5) questioned the One commenter (Ex. 16) noted that appropriateness of the OSHA exclusion Section 851.2—Exclusions and pointed out that the exclusion of the phrase ‘‘a contractor responsible for a covered workplace,’’ which occurs in As in the supplemental proposal, contractors regulated by OSHA was several proposed rule sections, could section 851.2 continues to emphasize ‘‘inherently contradictory,’’ and asserted result in confusion on sites where DOE that these regulations apply to activities that ‘‘DOE’s subcontractors have uses multiple contractors. The performed by DOE contractors at DOE flowdown of PAAA liability protection commenter recommended replacing the sites. Two commenters (Exs.13, 39) when they need to work in a nuclear phrase with the following language, ‘‘a sought clarification that transportation facility. Additionally DOE contractor responsible for activities in a was not covered under this rule. As subcontractors are the responsibility of covered workplace.’’ DOE acknowledges discussed previously, ‘‘scope’’ section the prime contractor (per contract) but the commenter’s concern. The purpose (851.1) of the final rule has been maintain their own OSHA 300 log section is revised in the final rule and modified to make it clear that because they are required to comply no longer makes reference to ‘‘a transportation to or from a DOE site is with OSHA regulations (per the contractor responsible for a covered not covered by the rule. industry in which they work, not workplace.’’ DOE also notes that Section 4(b)(1) of the Occupational because they are working at a DOE applicability of the rule is defined under Safety and Health (OSH) Act (29 U.S.C. site).’’ DOE disagrees. OSHA’s section 851.1(a), which clarifies that the 651 et seq.) provides that OSHA jurisdiction over subcontractor work on final rule applies to the conduct of regulations do not apply where another a DOE site is not based on the other contractor activities at DOE sites. federal agency exercises its statutory types of workplaces or the industry in Two other commenters (Exs. 39, 49) authority to prescribe safety and health which the subcontractor works. Rather, also expressed concern about the standards and requirements. DOE OSHA has jurisdiction only if DOE reference in supplemental proposed rule currently exercises its statutory declines to exercise its statutory section 851.2(a) to a ‘‘covered authority broadly throughout the DOE authority. workplace.’’ The commenters noted that complex to provide safe and healthful Two commenters (Exs. 36, 29) sought the term was not defined, leaving workplaces. In a few cases, however, clarification on whether privately- readers to assume that it refers to DOE DOE has elected not to exercise its owned or—leased facilities operated by facilities not excluded from the scope of authority and to defer to regulation by contractors under a DOE contract and the rule. One of the commenters (Ex. 49) OSHA under the OSH Act. Final rule otherwise subject to state occupational suggested replacing the term ‘‘covered section 851.2(a)(1) continues the status safety and health regulation are workplace’’ with ‘‘DOE site’’ since the quo by excluding from coverage those excluded from the rule. One commenter supplemental proposed rule did not facilities regulated by OSHA. The (Ex. 29) specifically requested DOE to include a definition for ‘‘covered OSHA-regulated facilities are: Western clarify if the exclusion applied to sites workplace.’’ DOE has responded to Area Power Administration; regulated by State OSHA. DOE notes these comments by including a Southwestern Power Administration; that the exclusion only applies to definition of the term ‘‘covered Southeastern Power Administration; regulation by OSHA. However, DOE workplace’’ in final rule section 851.3. Bonneville Power Administration; notes that a location not owned or One commenter (Ex. 27) pointed out National Energy Technology Laboratory leased by DOE can be a DOE site only that while supplemental proposed rule (NETL), Morgantown, West Virginia; if DOE exercises regulatory control over section 851.2(a) made no distinction in National Energy Technology Laboratory the location. This is consistent with the severity of hazards covered by the (NETL), Pittsburgh, Pennsylvania; DOE’s current practice. For example, rule, supplemental proposed rule Strategic Petroleum Reserve (SPR); some operations of Nevada Test Site section 851.4 included references to National Petroleum Technology Office; contractors are not conducted on the both ‘‘hazards causing or likely to cause Albany Research Center; Naval Mercury Site, which is owned by DOE. serious bodily harm’’ and ‘‘adequate Petroleum and Oil Shale Reserves in DOE operations of these contractors cprice-sewell on PROD1PC66 with RULES2 protection from hazards identified in Colorado, Utah, & Wyoming; and Naval conducted off the Mercury site are the workplace.’’ As noted previously, Petroleum Reserves in California. See 65 subject to DOE nuclear safety the rule is intended to fulfill DOE’s FR 41492 (July 5, 2000). Work requirements. Part 851 will be applied responsibility under the AEA to ensure performed on such sites for DOE by in the same manner. adequate protection from all workplace DOE contractors, however, would be One commenter (Ex. 19) sought hazards. The rule also is intended to subject to the applicable contract clarification from DOE that the DOE VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 6868 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations Mixed Oxide Fuel Fabrication Facility and cooperate in instances where the extent regulated by 10 CFR parts 820, (MFFF) would not be subject to the rule requirements overlap. The two sets of 830 or 835,’’ in the final rule. because, section 3134(c) of the Strom requirements should be integrated and One commenter (Ex. 19) suggested Thurmond National Defense applied in a manner that guards against that sites regulated by the Nuclear Authorization Act for Fiscal Year 1999 unintended results and provides Regulatory Commission (NRC) should mandates that OSHA regulate the MFFF. reasonable assurance of adequate be excluded from coverage under the The commenter cited part of section worker protection. rule, since the NRC regulates some 3134(c) which states that ‘‘any activities Numerous commenters (Exs. 48, 13, aspects of worker safety and health such carried out under a license required 16, 29, 31, 36, 39, 47, 49) pointed out as fire protection and certain aspects of pursuant to section 202(5) of the Energy that the exclusion of radiological chemical safety (in addition to nuclear Reorganization Act of 1974 (42 U.S.C. hazards contained in this provision was and radiological safety). As discussed 5842) * * * shall be subject to not consistent with other sections of the previously, the NRC does not regulate regulation under the Occupational supplemental proposed rule, which non-radiological occupational safety Safety and Health Act of 1970.’’ The included the term ‘‘radiological and health matters. As a result, in most commenter requested a specific hazards’’ in describing certain rule instances, DOE has exercised and statement that the rule does not apply provisions. Inclusion of radiological intends to continue to exercise its to a DOE site ‘‘to the extent that hazards was intended to stress the need regulatory authority over worker safety facilities or activities on such site are to examine hazards in a wholistic and health at DOE facilities licensed by subject to licensing pursuant to section context rather than in isolation. To NRC. 202(5) of the Energy Reorganization Act avoid confusion, DOE has removed the One commenter (Ex. 20) of 1974, as amended.’’ DOE agrees that term, but this should not be interpreted recommended adding an exclusion activities undertaken pursuant to a NRC as negating the need to analyze hazards related to nuclear explosive operations: license for the MFFF are subject to together so that controls do not produce ‘‘This part does not apply to nuclear OSHA regulation to that extent. DOE unintended consequences. This is the explosive operations to the extent notes that the exact scope of such essence of integrated safety management regulated by 10 CFR 10, 820, 830, or activities can only be determined by which is emphasized in section 835.’’ DOE agrees with the commenter’s looking at the terms of the license 851.13(b). One commenter (Ex. 28) proposal, and has incorporated the granted by NRC. DOE further notes that observed that radiological hazards are exclusion for nuclear explosive the treatment of the MFFF is not the ‘‘inextricably intertwined with physical, operations in final rule section 851.2(b). general practice with respect to DOE chemical, and biological hazards at most In addition, DOE has included facilities licensed by NRC. Since NRC DOE sites’’; and favored deletion of the definitions for nuclear explosives and does not regulate non-radiological radiological hazard exclusion. DOE nuclear explosive operations in final worker safety and health matters, DOE recognizes that radiological hazards are rule section 851.3. regulates these matters at DOE facilities intertwined with other workplace Section 851.3—Definitions subject to NRC licensing and thus hazards; however, radiological hazards preempts regulation by OSHA. have historically been covered under Section 851.3 of the final rule defines Section 234C of the AEA explicitly separate programs and through separate terms used throughout the rule. excludes activities conducted under the requirements both within DOE and Commenters on this section of the authority of the Director, Naval Nuclear external to DOE. DOE believes that supplemental proposed rule typically Propulsion, pursuant to Executive Order current rules addressing radiological requested either addition of new terms, 12344, as set forth in Public Law 106– safety issues—10 CFR 820, 830, and clarification or modification of proposed 65. Accordingly, section 851.2(a)(2) 835—are sufficient. As a result, DOE definitions, or deletion of selected terms excludes workplaces regulated by the retained the exclusion of radiological from the rule. These comments are Director, Naval Nuclear Propulsion. hazards in the final rule. discussed in detail below and/or in the DOE received no comments on this Another commenter (Ex. 49) favored section-by-section discussion provision during the public comment deletion of the phrase ‘‘* * * to the corresponding to the specific rule period. extent regulated by 10 CFR parts 820, sections where each term is used. Section 851.2(b) provides that 830 or 835,’’ from the radiological New terms. In response to public radiological hazards or nuclear hazard exclusion provision. The comment, and to assist in further explosive operations are not covered by commenter asserted that radiological clarification of the provisions of the Part 851 to the extent that they are hazards were not within the scope of the rule, the following additional terms regulated by the existing requirements rule. DOE acknowledges that existing have been defined in section 851.3: on nuclear safety and radiological rules already deal with radiological ‘‘Affected worker,’’ ‘‘closure facility,’’ protection set forth in 10 CFR Parts 20, hazards and nuclear explosives in a ‘‘closure facility hazard,’’ 820, 830, and 835. These existing rules comprehensive manner. This regulation ‘‘construction,’’ ‘‘construction already deal with radiological hazards is intended to complement the nuclear contractor,’’ ‘‘construction manager,’’ and nuclear explosives in a safety requirements. As discussed ‘‘construction project,’’ ‘‘construction comprehensive manner through above, DOE intends for the two sets of worksite,’’ ‘‘covered workplace,’’ ‘‘DOE methods such as the Quality Assurance requirements to be integrated and Enforcement Officer,’’ ‘‘Head of DOE Program Plan, the Safety Basis, the applied in a manner that guards against Field Element,’’ ‘‘interim order,’’ Documented Safety Analysis, the unintended results and provides ‘‘nuclear explosives,’’ ‘‘nuclear Radiation Protection Program Plan, and reasonable assurance of adequate explosives operation,’’ ‘‘occupational the Nuclear Explosive and Weapons worker protection. Thus, personnel medicine provider,’’ ‘‘permanent cprice-sewell on PROD1PC66 with RULES2 Surety Program. This regulation is responsible for implementing worker variance,’’ ‘‘pressure systems,’’ ‘‘safety intended to complement the nuclear protection and nuclear safety and health standard,’’ ‘‘temporary safety requirements. Personnel requirements are expected to coordinate variance,’’ ‘‘unauthorized discharge,’’ responsible for implementing worker and cooperate in instances where the and ‘‘ variance.’’ A discussion of each protection and nuclear safety requirements overlap. For this reason, term is included in the alphabetical requirements are expected to coordinate DOE retains the phrase ‘‘* * * to the listing of definitions below. VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6869 Terms and definitions deleted. In The Cognizant Secretarial Officer (including dredging, excavating, and response to public comment, the (CSO) is the Assistant Secretary, Deputy painting) of buildings, structures, or following definitions in the Administrator, Program Office Director, other real property, as well as any supplemental notice are deleted in the or equivalent DOE official who has construction, demolition, and final rule: ‘‘Activity-level hazard primary line management responsibility excavation activities conducted as part analysis,’’ ‘‘hazard control,’’ ‘‘Site for a contractor, or any other official to of environmental restoration or Manager,’’ ‘‘workplace safety and health whom the CSO delegates in writing a remediation efforts. DOE added this programmatic requirement,’’ particular function under this part. One definition to the final rule in response ‘‘workplace safety and health commenter (Ex. 32) sought clarification to public comments discussed in the requirement,’’ and ‘‘workplace safety of the definition for the term Cognizant section-by-section discussion for and health standard.’’ The deletions are Secretarial Officer due to the Appendix A section 1, ‘‘Construction explained in the section-by-section inconsistency between the proposed Safety.’’ discussion of the rule provisions in rule definition of a CSO having The construction contractor is the which the terms were previously used. ‘‘primary line management lowest tiered contractor or subcontractor Section 851.3 defines key terms using responsibility for a contractor’’ and how with primary responsibility for the traditional occupational safety and CSOs were assigned in DOE Manual execution of all construction work health and Departmental terminology, 411.1–C, Safety Management Functions, described within a construction as well as terminology used by the Responsibilities, and Authorities procurement or authorization document OSHA in its regulations and Manual, by site or organization. The (e.g., construction contract, work order). interpretations, in establishing and commenter recommended that the DOE added this definition to the final clarifying the provisions of this rule. definition be made consistent with DOE rule in response to public comments The use of such terminology is Manual 411.1–C. In response, DOE discussed in the section-by-section consistent with DOE’s increased modified the definition of CSO in the discussion for Appendix A section 1, emphasis on safety and health final rule to include reference to a DOE ‘‘Construction Safety.’’ compliance through the use of accepted official with primary line management The construction manager is the occupational safety and health responsibility for a contractor and any individual or firm responsible to DOE requirements and procedures. The other official to whom the CSO for the supervision and administration following discussion defines and delegates a particular function under of a construction project to ensure the explains each of the terms in the rule. this part. construction contractor’s compliance Although some of these terms are A compliance order is an order issued with construction project requirements. commonly used, DOE believes these by the Secretary to a contractor that DOE added this definition to the final definitions will help ensure that their mandates a remedy, work stoppage, or rule in response to public comments meaning as used in the context of the other action to address a situation that discussed in the section-by-section rule is clear. Section 851.3(a) presents violates, potentially violates, or discussion for Appendix A section 1, definitions of terms as used in this part. otherwise is inconsistent with a AEA is the Atomic Energy Act of ‘‘Construction Safety.’’ requirement of this part. This provision 1954. DOE did not receive any The construction project refers to the merely codifies the Secretary’s authority comments on this proposed definition under the AEA to take immediate action full scope of activities required on a during the public comment period. where necessary to ensure an adequate construction worksite to fulfill the Affected worker is an employee who level of safety. While the Secretary requirements of the construction would be affected by the granting or might use this authority where there is procurement or authorization denial of a variance, or any authorized a persistent pattern of non-compliance document. DOE added this definition to representative of the employee, such as by a contractor that warrants Secretarial the final rule in response to public a collective bargaining agent. DOE intervention, a compliance order is not comments discussed in the section-by- added this definition to the final rule to intended to be used as a routine section discussion for Appendix A assist in clarifying worker rights enforcement device by the Office of section 1, ‘‘Construction Safety.’’ associated with the variance process. Price-Anderson Enforcement. DOE The construction worksite is the area A closure facility is a facility that is received no comments specifically within the limits necessary to perform non-operational and is, or is expected to related to this definition during the the work described in the construction be, permanently closed and/or public comment period. Comments on procurement or authorization demolished, or title to which is the compliance order provisions of the document. It includes the facility being expected to be transferred to another rule are addressed in detail in the constructed or renovated along with all entity for reuse. DOE added this section-by-section discussion for final necessary staging and storage areas as definition to the final rule to assist in rule section 851.4. well as adjacent areas subject to project clarifying which facilities qualify for the A consent order is any written hazards. DOE added this definition to flexibility provisions established in final document, signed by the Director and a the final rule in response to public rule section 851.21(b). contractor, containing stipulations or comments discussed in the section-by- A closure facility hazard is a conclusions of fact or law and a remedy section discussion for Appendix A workplace hazard within a closure acceptable to both DOE and the section 1, ‘‘Construction Safety.’’ facility covered by a requirement of contractor. DOE did not receive any A contractor is any entity under final rule section 851.23 for which strict comments on this proposed definition contract with DOE, including a technical compliance would require during the public comment period. subcontractor, with responsibility for costly and extensive structural/ Construction means any combination performing work at a DOE site in cprice-sewell on PROD1PC66 with RULES2 engineering modifications to be in of erection, installation, assembly, furtherance of a DOE mission. This term compliance. DOE added this definition demolition, or fabrication activities does not apply to contractors or to the final rule to assist in clarifying the involved to create a new facility or to subcontractors that provide only types of hazards that qualify for the alter, add to, rehabilitate, dismantle, or ‘‘commercial items’’ as defined under flexibility provisions established in final remove an existing facility. It also the Federal Acquisition Regulations rule section 851.21(b). includes the alteration and repair (FAR). Such contractors would not be VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 6870 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations performing work in furtherance of a applicable entities or that the usage of referred to a ‘‘covered workplace,’’ but DOE mission. the term in the rule be reviewed closely that term was not defined in proposed Several commenters (Exs. 16, 28, 31, to eliminate inconsistencies, or rule section 851.3. Consequently 37, 39, 45, 48, 51) requested clarification alternatively that separate definitions be contractors would be left to assume that of the role of affiliated entities, like provided for ‘‘subcontractor’’ and the term referred to DOE facilities not parent corporations, in the definition of ‘‘supplier.’’ DOE has modified the excluded from the scope of the rule. ‘‘contractor.’’ One commenter (Ex. 39) definition in the final rule to make clear Two commenters (Exs. 36, 42) observed questioned the legal justification for it covers contractors and subcontractors that supplemental proposed rule section including parent organizations within at any tier. DOE also has made several 851.1 would limit application of the the scope of these regulations. Noting other revisions to the regulatory rule to contractor activities at ‘‘DOE that well-established legal precedents language to eliminate potential sites’’ (which is defined in regarding separation of parent ambiguities as to which contractor(s) supplemental proposed rule section corporations and their entities existed, a would be subject to a particular 851.3), but the term ‘‘covered commenter (Ex. 16) recommended that provision in a particular situation. workplace’’ was used rather than ‘‘DOE DOE excise references to parent Another commenter (Ex. 28) proposed sites’’ throughout the rule language. In organizations or review each use of the that ‘‘contractor’’ be defined as any response to these concerns, DOE added term in the rule for unintended or entity under contract (or its a definition for ‘‘covered workplace’’ in inappropriate implications to ensure subcontractors or suppliers) with DOE final rule section 851.3. The use of compliance with legal precedents. that has entered into an agreement of ‘‘covered workplace’’ is intended to Another commenter (Ex. 37) indemnification under section 170d of make clear that the focus of the rule is requested clarification of DOE’s the AEA. As discussed previously, DOE the specific areas where work is expectations of affiliates under the rule. made the decision to cover all of its performed. In addition, as discussed A few commenters (Exs. 28, 45, 51) contractors to ensure consistency in the previously, the definition of ‘‘DOE site’’ sought clarification of the circumstances protection of workers and enforcement. has been revised to provide further under which an enforcement action may As a result, the definition of contractor clarity on the scope of the rule. be brought against a parent corporation in the final rule does not limit the term One commenter (Ex. 48) also or affiliated entity. Some other to those contractors covered by an requested clarification of the term commenters (Exs. 31, 39, 48) took issue agreement of indemnification. ‘‘covered workplace’’ with respect to the with what they perceived as DOE’s Several other commenters (Exs. 20, term ‘‘worker.’’ In reference to the use attempt to expand the scope of DOE 45, 49, 51) recommended limiting the of ‘‘worker,’’ the commenter questioned enforcement authority to entities that definition of ‘‘DOE contractor’’ to any whether a contractor would be held are established under State laws as entity under contract to DOE whose responsible for ensuring that all the wholly independent of their affiliates responsibility it would be to flow-down work of vendors, suppliers, and (e.g., C corporations, S corporations and requirements to subcontractors. Two of fabricators not located at the LLCs) and operate outside the liability these commenters (Exs. 49, 51) favored contractor’s work location, but who space of DOE authority. Many eliminating references to subcontractors were providing goods, services, and commenters (Exs. 31, 39, 48, 49, 51) since they lack authority to conduct or materials for DOE work, was in recommended elimination of language direct work at DOE sites. Section 3173 compliance with the rule. As discussed referring to any affiliated entity, such as of the NDAA requires DOE to include elsewhere, DOE has clarified what ‘‘parent organization’’ in the proposed subcontractors within the framework of constitutes a ‘‘DOE site’’ and has definition. Lastly, two commenters (Exs. the rule. Accordingly, the Department defined ‘‘worker’’ to be a contractor 45, 51) noted that parent companies are does not have the discretion to exclude employee performing work in a covered expressly set up to limit liability, so it subcontractors from the rule. workplace at a DOE site in furtherance was inappropriate to attempt to A covered workplace is a place at a of a DOE mission. circumvent established corporate DOE site where work is conducted by a A Director is a DOE Official to whom structures by including them in the contractor in furtherance of a DOE the Secretary has assigned the authority definition. DOE appreciates these mission. Several commenters (Exs. 1, to investigate the nature and extent of concerns. Nevertheless, to ensure that 13, 29, 32, 39, 42) requested greater compliance with the requirements of responsible parties such as an affiliate clarification of the term ‘‘covered this part. This function has been are held responsible for the safety and workplace’’ and strongly supported its assigned to the current Director of the health of workers, and to maintain inclusion in the list of definitions in Office of Price-Anderson Enforcement consistency with the duties and proposed section 851.3. For instance, in the Office of Environment, Safety and responsibilities set forth in 10 CFR Part one commenter (Ex. 13) sought Health, who is the person to whom the 820, DOE has determined not to delete elucidation of which workplaces were Secretary has assigned the responsibility the reference to affiliated entities in the covered by the regulation (e.g., whether for enforcing the DOE nuclear safety definition. the term included contractor owned or regulations in 10 CFR parts 20, 820, 830, Several commenters (Exs. 20, 28, 33, leased facilities). Another commenter and 835. DOE did not receive comments 42, 45, 49, 51) also sought clarification (Ex. 32) recommended that the on this definition during the public and modification of the proposed definition distinguish between DOE comment period. definition for contractors with respect to sites and non-DOE locations. The DOE is the United States Department the inclusion of subcontractors. Some commenter noted that non-DOE of Energy, including the National commenters (Exs. 28, 33, 45, 51) felt that locations could include contractor- Nuclear Security Administration. One the term contractor was inconsistently owned or -leased locations, vendor commenter (Ex. 39) sought a cprice-sewell on PROD1PC66 with RULES2 applied throughout the rule and locations, or other areas where DOE clarification of which entities were variously referred to prime contractors, contractors performed activities (viz., included under the DOE acronym. The subcontractors, or suppliers, when research, installation of equipment, commenter questioned if the term distinctions were required. One business, and travel). One commenter referred to the local site or field office commenter (Ex. 33) recommended that (Ex. 39) pointed out that in proposed or the DOE Office of Price-Anderson the definition be modified to limit rule section 851.2(a), the regulations Enforcement. In response, DOE notes VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6871 that DOE is defined in final rule section which the recipient of the order must to violate a requirement of this part. 851.3 and includes any DOE comply. Such a document includes: headquarters, field, area, or site office. General Counsel refers to the General (1) A statement specifying the Where a specific office has a specific Counsel of DOE. requirement of this part to which the role or responsibility with respect to A Head of DOE Field Element is the violation relates; this rule, the specific office is referenced highest-level DOE official in a DOE field (2) A concise statement of the basis under the corresponding provision of or operations office who has the for alleging the violation; the rule. responsibility for identifying the (3) Any remedy, including the amount A DOE Enforcement Officer is a DOE contractors and subcontractors covered of any proposed civil penalty; and Official to whom the Director has by this part and for ensuring compliance (4) A statement explaining the assigned the authority to investigate the with this part. DOE added this reasoning behind any proposed remedy. nature and extent of compliance with Pressure systems are all pressure definition to assist in clarifying program the requirements of this part. DOE vessels, and pressure sources including review and approval authorities under added this definition to assist in cryogenics, pneumatic, hydraulic, and the final rule by identifying the DOE vacuum. Vacuum systems should be clarifying enforcement authorities under official responsible for these actions the final rule. considered pressure systems due to under the rule. their potential for catastrophic failure DOE site means DOE-owned or An interpretation refers to a statement -leased area or location or other location due to backfill pressurization. by the General Counsel concerning the Associated hardware (e.g., gauges, and controlled by DOE where activities and meaning or effect of a requirement of operations are performed at one or more regulators), fittings, piping, pumps, and this part that relates to a specific factual pressure relief devices are also integral facilities or locations by a contractor in situation but may also be a ruling of furtherance of a DOE mission. This parts of the pressure system. DOE added general applicability if the General this definition to clarify the scope of the definition was revised to include all Counsel determines such action to be sites where DOE exercises regulatory pressure safety provisions of Appendix appropriate. DOE received several A section 4 of the final rule. control under the AEA, even if DOE comments regarding the interpretation A remedy is any action (included, but does not own or lease the site. provision of the rule. These comments One commenter (Ex. 5) suggested a not limited to, the assessment of civil are addressed in detail in the section-by- penalties, the reduction of fees or other modification of the definition of ‘‘DOE section discussion for final rule section payments under a contract, the site’’ to include the idea that some DOE 851.6. requirement of specific actions, or the sites have multiple contractors working NNSA is the National Nuclear modification, suspension or rescission on them. DOE disagrees that a Security Administration. of a contract) necessary or appropriate modification to this definition is needed A nuclear explosive is an assembly to rectify, prevent, or penalize a to clarify this point. The current containing fissionable and/or fusionable violation of a requirement of this part, definition does not limit the meaning of materials and main charge high- including a compliance order issued by the term to areas where only one explosive parts or propellants capable of the Secretary pursuant to this part. One contractor works. producing a nuclear detonation (e.g., a Two commenters (Exs. 19, 48) commenter (Ex. 28) proposed a nuclear weapon or test device). DOE modification of the definition for the questioned ownership and geographical added this definition (see, e.g., 10 CFR issues with respect to a DOE site. One term ‘‘remedy’’ and suggested the section 712.3) to further clarify the definition should read as: ‘‘any action commenter (Ex. 48) suggested that DOE exclusion provisions of section 851.2 of site should be defined as being strictly (included, but not limited to, the the final rule. assessment of civil penalties, the DOE-owned or directly DOE-leased A nuclear explosive operation is any requirement of specific actions, request areas/locations. The other commenter activity involving a nuclear explosive, to the DOE contracting officer for a (Ex. 19) had contractor specific concerns including activities in which main reduction of fees or other payments about the definition’s applicability, charge high-explosive parts and pit are under a contract, or the modification, requesting clarification that the rule collocated. DOE added this definition to suspension or rescission of a contract.’’ only intended to cover sites owned or further clarify the exclusion provisions The commenter pointed out that the leased by DOE as opposed to DOE sites of section 851.2 of the final rule. DOE contracting officer was the entity not owned or leased where contract An occupational medicine provider is that had the authority to implement work is performed. DOE considered the designated site occupational contract actions. While DOE agrees that these comments in revising the medicine director (SOMD) or the contracting officers have the authority to definition of ‘‘DOE site.’’ A final notice of violation is a individual providing medical services. take contract actions, the Director has document that determines a contractor A permanent variance is relief from a been delegated the authority to enforce has violated or is continuing to violate safety and health standard, or portion Part 851. In that role, the Director a requirement of this part. Such thereof, to contractors who can prove coordinates with the contracting officer document includes: that their methods, conditions, in effecting the appropriate contract (1) A statement specifying the practices, operations, processes provide action. DOE has determined that the requirement of this part to which the workplaces that are as safe and healthful definition being adopted for ‘‘remedy’’ violation relates; as would result from compliance with is appropriate because it provides the (2) A concise statement of the basis the workplace safety and health Department the flexibility to determine for the determination; standard required by this part. DOE the most appropriate remedy to a (3) Any remedy, including the amount added this definition to further clarify violation of a relevant safety and health cprice-sewell on PROD1PC66 with RULES2 of any civil penalty; and the variance process established in provision. (4) A statement explaining the Subpart D of the final rule. A safety and health standard is a reasoning behind any remedy. A preliminary notice of violation standard that addresses a workplace A final order is a DOE order that (PNOV) is a document that sets forth the hazard by establishing limits, requiring represents final agency action and, if preliminary conclusions that a conditions, or prescribing the adoption appropriate, imposes a remedy with contractor has violated or is continuing or use of one or more practices, means, VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 6872 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations methods, operations, or processes, process established in Subpart D of the analyze all hazards in an integrated reasonably necessary or appropriate to final rule. manner. provide safe and healthful workplaces. A worker is an employee of a DOE Many commenters (Exs. 15, 20, 28, Two commenters (Exs. 15, 29) sought contractor who performs work for DOE 39) expressed concerns about the use of clarification of and favored elimination at a covered workplace in furtherance of the term ‘‘potential’’ in the definition for of the term ‘‘workplace health and a DOE mission. A few commenters (Exs. workplace hazards. Some commenters safety programmatic standards’’ from 16, 31, 39, 48) suggested that DOE (Exs. 15, 20, 28) suggested replacement the proposed rule since it appeared to modifying the proposed definition for of the proposed language ‘‘with any be redundant with the terms ‘‘workplace ‘‘worker’’ to exclude the phrase ‘‘or any potential to cause illness,’’ with the health and safety standards’’ and other person.’’ Specifically, two language ‘‘with the potential to cause ‘‘workplace health and safety commenters (Exs. 16, 31) remarked that illness’’ or ‘‘with any potential to cause requirements.’’ As requested, DOE has the definition of worker could be imminent illness’’ in the definition for eliminated the term ‘‘workplace health interpreted to include work conducted workplace hazards; this, they asserted, and safety programmatic standards’’ and off-site and at non-DOE locations. would account for the fact that many also, the term ‘‘workplace health and Furthermore, all types of activities on a chemical, biological, and radiological safety requirements’’ from the final rule. DOE site (including non-DOE-related exposures resulting from chronic One commenter (Ex. 11) questioned ones like those of a UPS courier exposures can, after decades, cause why DOE issued a separate definition delivering packages, copier service illness, injury, and death. Another for the term ‘‘safety and health person, vending machine maintenance commenter (Ex. 39) cautioned that the standard,’’ which is commonly used in person, or office supply delivery driver) proposed definition of ‘‘workplace the safety and health community. The could be misconstrued as work under hazard’’ could be interpreted to commenter cited the definition of an the regulation. One of these commenters preclude the mere presence of a occupational safety and health standard (Ex. 16) further suggested the definition hazardous material with any potential to in section 3(8) of the OSH Act 29 U.S.C. should be re-worded as ‘‘persons who cause illness and hence should be 652(8) in support of the argument and perform work for or on behalf of DOE modified. DOE believes a broad sought clarification on DOE’s omission at a covered workplace * * *’’. definition of ‘‘workplace hazard’’ is of language similar to OSHA’s with Additionally, the commenter argued the appropriate to ensure that all hazards respect to standards being ‘‘necessary or term ‘‘work’’ should be defined for the are considered in determining how to appropriate to provide safe or healthful purposes of the rule. In response to provide a safe and healthful workplace. these comments, DOE revised the Section 851.3(b) provides that if a employment and places of definition to make clear it applies only term is defined in the AEA but is not employment.’’ DOE agrees, in general, to contractor employees, including defined in this rule, it has the meaning with this comment. However, DOE has subcontractor employees, who are defined in the AEA for the purpose of revised the definition of ‘‘safety and performing work at a covered workplace this rule. health standard,’’ in the final rule to in furtherance of a DOE mission. Section 851.4—Compliance Order make clear that, for purposes of this Another commenter (Ex. 39) sought rule, it includes all the standards or Section 161 of the AEA grants the clarification on whether the definition requirements included or referenced in of ‘‘worker’’ included private tenants Secretary broad authority to order those subpart C. present on a DOE site under a lease actions deemed necessary by the Secretary means the Secretary of arrangement and cautioned that the Secretary to protect facility workers and Energy. phrase ‘‘* * * or any other person who the environment from any injury A temporary variance is a short-term performs work at a covered workplace’’ because of activity under the Act. relief from a new safety and health could be broadly interpreted to include Section 851.4(a) makes it clear that the standard when the contractor cannot work not being performed by a DOE Secretary has the authority to issue a comply with the requirements by the contractor. Final rule section 851.1(a) compliance order to any contractor for prescribed date because the necessary clarifies that the rule applies to the a situation that violates, potentially construction or alteration of the facility conduct of contractor activities at DOE violates, or otherwise is inconsistent cannot be completed in time or when sites and final rule section 851.3 with a requirement of Part 851 or the technical personnel, materials, or clarifies the definition of ‘‘DOE site.’’ AEA. The compliance order will state equipment are temporarily unavailable. A workplace hazard is a physical, the action or remedy that the Secretary DOE added this definition to further chemical, biological, or safety hazard deems necessary and the reasons for the clarify the variance process established with any potential to cause illness, action or remedy. One commenter (Ex. in Subpart D of the final rule. injury, or death to a person. DOE 20) inquired how compliance orders An unauthorized discharge is the received numerous comments (Exs. 5, would be reconciled with contract discharge of a firearm under 13, 16, 20, 29, 31, 39, 45, 47, 49, 51) on obligations and limitations and funding. circumstances other than: (1) During the inclusion of radiological hazards in In response to this question, DOE notes firearms training with the firearm the supplemental proposed definition. compliance orders represent an exercise properly pointed down range (or toward Most favored the elimination of of Secretarial authority under the AEA a target), or (2) the intentional firing at radiological hazards from the definition, and are not dependent on contractual hostile parties when deadly force is citing a need for consistency across the provisions. authorized. DOE added this definition rule and noting that radiological hazards One commenter (Ex. 54) to further clarify provision of Appendix are addressed under other existing recommended that this provision also A section 5, ‘‘Firearms Safety,’’ in the regulations like 10 CFR Parts 820, 830, require posting of the compliance order cprice-sewell on PROD1PC66 with RULES2 final rule. and 835. DOE acknowledges these as well as employer responses, A variance is an exception to concerns and has removed reference to corrections, or requests for rescission or compliance with some part of a safety radiological hazards from this definition modification. DOE agrees and has and health standard granted by the in the final rule. However, as previously revised final rule section 851.4(d) to Under Secretary. DOE added this discussed, this change should not be require posting of compliance orders. definition to further clarify the variance interpreted to eliminate the need to This provision stipulates that the VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6873 posting must remain in place until the Secretary to any contractor will state the exposure to workplace safety and health violation is corrected. In addition, final reasons for the remedy, work stoppage, hazards. rule section 851.42(e) requires posting or other action. DOE received no DOE received two general comments of preliminary notices of violations comments on these provisions during recommending changes to aspects of the (PNOVs) once they become final. The the public comment period. rule that are mandated by section 3173 rule does not, however, require posting Section 851.4(b) establishes that the of the NDAA. One commenter (Ex. 6) of employer responses to compliance compliance order will be a final order pointed out that DOE has already orders or requests for recessions. that is effective immediately unless the successfully incorporated OSHA Section 851.4(a)(1) establishes that the order specifies a different effective date. requirements into its workplaces. Secretary may issue to any contractor a Section 851.4(c) grants the recipient of Stating that ‘‘enforcement appears to be Compliance Order that identifies a a compliance order the right to ask the a DNFSB issue,’’ the commenter situation that violates, potentially Secretary to rescind or modify the recommended that ‘‘OSHA enforcement violates, or otherwise is inconsistent compliance order within 15 days of its be worked/addressed between DOE and with a requirement of this part. Two issuance. The filing of a request for an OSHA and not driven by DNFSB (except commenters (Exs. 15, 42) took issue appeal under this section will not on Defense Nuclear Facilities).’’ The with the reference to potential automatically stay the effectiveness of second commenter (Ex. 5) suggested that violations and the phrase ‘‘otherwise is such an order. The Secretary, however, DOE ‘‘pick one way to fine the inconsistent with’’ in this supplemental could issue a compliance order that contractor’’ and suggested that DOE not proposed provision. The commenters would provide an effective date after the ‘‘dilute penalty authority.’’ DOE expressed concern that given the gravity issuance date, allowing a longer period believes the two penalty methods give of a compliance order and the to appeal the terms of the order. the Department greater flexibility in progressive nature of enforcement Two commenters (Exs. 5, 31) determining the appropriate described in Appendix B section IX, expressed concern that the 15-calendar enforcement mechanism to address compliance orders should require a day appeal period was not long enough. specific violations of the rule. While more definitive determination of They argued that ‘‘it takes a month for DOE intends to use civil penalties for violation. The commenters a document issued by DOE- most enforcement actions, contract recommended that the phrase Headquarters to reach a DOE penalties will be reserved for egregious ‘‘potentially violates, or otherwise is contractor.’’ One commenter (Ex. 31) violations that indicate general worker inconsistent with’’ be deleted from the proposed 15 calendar days from receipt safety and health program failure. When provision. One commenter (Ex. 42) of the compliance order as an appropriate, the Director will coordinate pointed out that OSHA does not cite alternative to this provision. One with the DOE Field Element to select employers for potential violations or commenter (Ex. 39) felt that the appeal the most effective penalty approach. inconsistencies and recommended provision was a moot point if the Other commenters stated that adoption of a process similar to OSHA. contractor had to take immediate action penalties should not be imposed for an DOE disagrees. This language, including because the Order was not stayed upon employer’s own observations. One of the phrase ‘‘potentially violates,’’ is submittal of the appeal. The commenter these commenters (Ex. 16) suggested consistent with the Department’s recommended that compliance orders that behavior-based safety systems (in longstanding procedural requirements be stayed during the 15-day window (or which employers report observations on set forth at 10 CFR 820.41. Given that upon a decision of the Secretary) unless at-risk behaviors) should not be subject these provisions have worked well in a stay posed significant safety and to enforcement action. DOE notes that practice, DOE has determined that it health consequences. In response DOE contractors may employ various means would be inappropriate to modify this notes that a primary purpose of a and methods to identify and abate language. compliance order is to address noncompliances, such as behavior- Another commenter (Ex. 27) situations that require immediate action. based safety programs, and that suggested that the phrase ‘‘violates, DOE believes that it is inappropriate to noncompliances of greater significance potentially violates, or otherwise delay corrective action unless may be reported into the inconsistent with’’ was vague (as was extenuating circumstances exist. In such Noncompliance Tracking System (NTS). language throughout the rule). The cases, final rule section 851.4(c) allows Furthermore, DOE recognizes the value commenter recommended that the the Secretary to stay the Compliance that an initiative such as behavior-based entire rule be rewritten to eliminate Order, if appropriate, pending review of safety can add to the development and vague standards and criteria. Although the contractor’s request to modify or implementation of a comprehensive the referenced phrase is broad, DOE rescind the Order. In addition, these safety and health program. Therefore, does not agree that it is vague, and it is time frames are consistent with the such an initiative should be an integral retained in the final rule. As to the procedures set forth in 10 CFR Part 820. part of the contractor’s approved safety broader comment about vagueness in and health program, which is subject to the rule, DOE has carefully reviewed the Section 851.5—Enforcement DOE review. During the performance of rule in light of all comments received This section establishes enforcement onsite inspections, for instance, the during the public comment period and provisions for the rule. Like other Office of Price-Anderson Enforcement has attempted to address those Departmental regulations that apply to may evaluate the approved safety and requesting clarification or further detail. DOE contractors, this provision allows health program to determine the degree DOE also intends to publish appropriate DOE to employ contractual mechanisms and depth of compliance measures guidance materials to further help such as reduction in fees, or to assess a taken by contractors. A second contractors with implementation. civil penalty when a contractor fails to commenter (Ex. 42) believed that cprice-sewell on PROD1PC66 with RULES2 Section 851.4(a)(2) establishes that the comply with the provisions of this rule. penalties for safety and health issues Secretary may issue to any contractor a These mechanisms help the Department that are self-identified via NTS ‘‘will compliance order that mandates a ensure that workers receive an have a chilling effect on contractor’s self remedy, work stoppage, or other action. appropriate level of protection while disclosing issues.’’ DOE agrees and Section 851.4(a)(3) establishes that any performing Departmental activities that intends to create reporting guidelines compliance order issued by the involve exposure or the potential for that will help ensure contractors VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 6874 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations understand and are more comfortable hazards on DOE sites. DOE notes, as promulgated under [section 234C] shall with DOE’s expectations. Future discussed above, that these be subject to a civil penalty of not more enforcement guidance supplements requirements may be applied to DOE than $70,000 for each such violation.’’ (EGSs) will establish reasonable NTS contractors excluded from this rule For continuing violations, section 234C reporting thresholds. It is in the through contract mechanisms, if DOE further provides that each day of the contractor’s best interest to report self- determines that the standards are violation shall constitute a separate identified noncompliances above the applicable to the work performed by the violation for the purposes of computing NTS reporting thresholds since the contractor. In addition, DOE has revised the civil penalty to be imposed. contractor may receive up to 50% Subpart D of the rule to establish a Specifically, under section 851.5(a) a mitigation of the base penalty for self- variance process modeled after the contractor (or any subcontractor or reporting—as specified in Appendix B OSHA variance process established in supplier thereto), whose contract with section IX.b.3. 29 CFR Part 1905. DOE contains an indemnification DOE received a number of comments Concerned about the possibility of agreement and that violates (or whose requesting clarification regarding how willful employee misconduct beyond employee violates) any requirement of various aspects of enforcement will the control of the contractor, one the regulations will be subject to a civil proceed under section 851.5. For commenter (Ex. 29) recommended that penalty of not more than $70,000 for example, several commenters (Exs. 20, the enforcement language of the rule each such violation. In the case of a 29, 45, 28, 51) wondered against whom should include a responsibility for continuing violation, this provision of enforcement action would be directed if employees to comply, similar to section the rule clarifies that each day of the a subcontractor to a management and 5(b) of the OSH Act. This commenter violation constitutes a separate violation operating contractor violated a suggested that the added provision for the purpose of computing the requirement. These commenters mirror the ‘‘unpreventable employee amount of the civil penalty. inquired how the rule would apply misconduct’’ defense recognized by DOE received several comments under several specific circumstances, OSHA. DOE agrees with this comment related to the penalty structure such as if the subcontractor had a direct and has added section 851.20(b) to the described by section 851.5(a). These contract with DOE (Ex. 29). In general, final rule to prohibit workers from commenters (Exs. 16, 27, 37, 14, 39, 46) DOE will consider enforcement actions taking actions that are inconsistent with argued that the civil penalty structure against any and all contractors the rule. In addition, DOE intends to under the rule, with its $70,000 per associated with a violation. All develop enforcement guidance for the violation maximum penalty, is 10 times subcontractors and suppliers of an rule that will include provisions similar higher than the OSHA penalty structure, indemnified contractor are considered to OSHA’s unpreventable employee and thus disproportionately sanctions indemnified contractors, and as such are misconduct defense outlined in OSHA’s DOE contractors compared to other U.S. subject to either civil penalties or Field Inspection Reference Manual in industries. These commenters believed contract penalties. In order to clarify the Chapter III, Paragraph C.8.c(1). OSHA’s penalty structure should be matter, DOE expects to publish an EGS In another comment related to how used and felt the DOE structure was based on OSHA’s multi-employer the section applies to subcontractors, excessively burdensome given the worksite policy to guide enforcement the commenter (Ex. 33) suggested that increased frequency of inspection that efforts on multi-employer worksites. DOE revise DEAR 952.250–70 (either tends to be associated with DOE Another commenter (Ex. 25) through this rulemaking or a separate facilities. DOE points out that the wondered how the enforcement process rulemaking) to inform contractors with penalty structure is not determined by would view legacy issues. DOE believes an indemnification agreement that they DOE, but rather is established by statue. the provisions on ‘‘closure facilities’’ are subject to civil penalties under the As a result, the Department is not free and ‘‘variances’’ provide sufficient rule and to require them to flow this to deviate from these provisions. The flexibility to deal with legacy issues. A notice down to all lower-tier Director may, however, use discretion in commenter (Ex. 16) suggested that, subcontractors. The commenter determining what enforcement actions because section 851.2(a)(1) excludes indicated that a similar revision was may be taken and in establishing the applicability of this rule to sites also made ‘‘when Congress added final penalty amounts. DOE also points regulated by OSHA, the OSHA- formal regulation by DOE of nuclear out that it is the responsibility of the regulated sites are being held to a safety matters.’’ DOE recognizes the contractor to identify and abate different level of requirements and a commenter’s concern, but notes that noncompliances, thus avoiding penalty. different enforcement structure than section 3173 of the NDAA mandates One of these commenters (Ex. 27) also non-OSHA-regulated sites. As an that DOE promulgate a rule to enforce submitted a related suggestion that DOE example, the commenter pointed out worker safety and health program should establish enforcement that OSHA does not mandate requirements. The statutory mandate thresholds. DOE agrees. Since violations compliance with the entire set of does not stipulate nor are its provisions have varying degrees of safety and consensus standards included in contingent upon rulemaking related to health significance, DOE has established Subpart C of the supplemental proposal, the DEAR. Accordingly, such a change severity level thresholds that nor does OSHA require the formal would be beyond the scope of this distinguish on the basis of possible exemption process of proposed Subpart rulemaking. consequence and have appropriate D. DOE acknowledges these concerns Section 851.5(a) implements the sanctions. Such thresholds and and has significantly reduced the statutory provision of section 234C guidance were established in number of consensus standards paragraph b of the AEA which provides supplemental proposed Appendix A mandated under Subpart C of the final that ‘‘a person (or any subcontractor or and are retained in Appendix B section cprice-sewell on PROD1PC66 with RULES2 rule to be more consistent with the supplier thereto) who has entered into VI to the final rule. standards required under DOE Order an agreement of indemnification under Other comments on section 851.5(a) 440.1A. These standards have been section 170d of the AEA (or any related to the definitions and obligations evaluated by the DOE safety and health subcontractor or supplier thereto) that of contractors and subcontractors. One community and determined necessary violates (or is the employer of a person commenter (Ex. 48) expressed concern to address worker safety and health that violates) any regulation that language in supplemental proposed VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6875 section 851.9(a)—e.g., ‘‘contractor * * * so long that the corrective action plan the contractor if the contractor or a (or any subcontractor or supplier would extend beyond the contractor employee violates the thereto) that violates (or whose implementation date of the final rule. In regulations issued pursuant to section employee violates)’’—expands the this case, the commenter wondered, 234C. The Act requires these provisions definitions of ‘‘contractor’’ and would the remaining violations be to be included in each DOE contract ‘‘worker’’ beyond those in supplemental considered ‘‘continuing violations’’ and with a contractor that has entered into proposed section 851.3 and beyond the be subject to penalty for each day the an agreement of indemnification under scope of the rule stated in supplemental condition goes uncorrected? The House section 170d of the AEA (the Price- proposed section 851.1. The commenter Committee directed that $25,000,000 be Anderson Amendment Act). The thought that this ‘‘expanded’’ definition transferred from the Departmental contract provisions must specify the might be interpreted as including work Administration account to the Science degrees of violations and the amount of done by suppliers and vendors on sites Laboratories Infrastructure to begin the reduction attributable to each degree far removed from DOE sites. DOE addressing the safety deficiencies at the of violation. disagrees with this comment. Section Science laboratories. In addition, the DOE is implementing this statutory 851.3 defines terms such as Committee directed the Department to mandate to include provisions for the ‘‘contractors’’ and ‘‘workers,’’ while request sufficient funding in the budget reduction in fees in contracts for section 851.1 of the final rule describes requests for fiscal years 2005 and 2006 violations of this part pursuant to the which contractors are subject to the rule to correct the remainder of the safety contract’s ‘‘Conditional Payment of Fee’’ and section 851.5 describes enforcement deficiencies. In such cases, DOE will clause. Most DOE management and provisions that apply to those consider the contractors abatement plan operating contracts currently contain contractors that are subject to the rule as well as the presence of interim such a clause providing for reductions (as defined in section 851.1.). Sections control measures when assessing the of earned fee, fixed fee, profit, or share 851.3 and 851.5 do not change (and are penalty. One should note that there are of cost savings that may otherwise be not intended to change) the scope of the no provisions for grandfathering payable under the contract if rule. Furthermore, section 851.1(a) existing noncompliances. performance failures relating to states that the rule applies to the DOE received two comments environment, safety, and health occur. conduct of contractor activities at suggesting specific changes in the See 48 CFR 970.5215–3, ‘‘Conditional covered workplaces. wording of the civil penalty Payment of Fee, Profit, or Incentives’’ Believing that ‘‘small business enforcement provision in the (applicable to DOE management and subcontractors are exempt from OSHA supplemental proposal. In the first, the operating contracts and other contracts requirements,’’ the same commenter commenter (Ex. 5) suggested revising designated by the Procurement (Ex. 48) was concerned that this rule the second parenthetical phrase in Executive). DOE amended this clause to would make small business subject to section 851.5(a) to read ‘‘* * * whose set forth the specific criteria and OSHA requirements, as well as DOE employee or subcontractor violates.’’ conditions that may precipitate a enforcement and penalties, and would DOE disagrees with this editorial reduction of earned or fixed fee, profit, thus have a serious impact on small suggestion. The rule applies directly to or share of cost savings under the businesses. DOE notes that this subcontractors. A contractor is not contract. The clause establishes commenter’s belief that small automatically liable for a reduction ranges that correlate to three businesses are exempt from OSHA subcontractor’s violations. To provide specified degrees of performance requirements is inaccurate. Although clear guidance on the subject, DOE will failures relating to environment, safety, employers with 10 or fewer employees publish and implement an EGS on and health. In the final rule, DOE are exempt from most OSHA DOE’s multi-employer worksite policy clarifies that the term ‘‘environment, recordkeeping requirements for (similar to OSHA’s policy) to clarify health, and safety,’’ as applied in the recording and reporting occupational appropriate enforcement for context of the rule, includes matters injuries and illnesses, small businesses subcontractor violations. relating to ‘‘worker safety and health.’’ must comply with OSHA requirements The second commenter (Ex. 37) Under the rule, DOE will apply the and are subject to inspections (such as recommended that DOE add a provision same reduction ranges and degrees of for accident investigations, complaint stating that civil fines will not be performance failure specified in the inspections, and other reasons). Because imposed unless the contractor knew of ‘‘Conditional Payment of Fee, Profit, or small businesses do not have the same the hazard and employees were injured Incentives’’ clause to worker safety and resources as larger establishments, or endangered. DOE disagrees that these health. In a parallel provision to section businesses do receive penalty reduction criteria should protect a contractor from 234C.c., section 851.5(b) implements based on employer size. The commenter civil penalty; however, the Department this statutory mandate by making a (Ex. 48) also asked for clarification does agree that these criteria should be contractor that fails to comply with the regarding whether contractor employees considered in determining the requirements of Subparts B and C of the are subject to civil penalty under the appropriate level of penalty. DOE also rule subject to a reduction in fees or rule. DOE confirms that contractor notes when a contractor is not aware of other payments under a contract with employees are not subject to civil a hazard, the question becomes ‘‘Should DOE pursuant to the contract’s penalty; however, under section they have been aware of the hazard?’’ ‘‘Conditional Payment of Fee’’ clause. 851.20(a)(3) contractors are required to That is, did the contractor implement Several of the comments that DOE assign worker safety and health effective workplace assessment and received on section 851.5(b) related to responsibilities, evaluate personnel inspections procedures as required how and by how much, fees could be performance, and hold personnel under final rule section 851.21? reduced under this provision. Three cprice-sewell on PROD1PC66 with RULES2 accountable for worker safety and health Section 851.5(b) implements the commenters (Exs. 28, 45, 51) believed performance. provisions of section 234C.c. of the that reduction in fee is always an option One commenter (Ex. 5) inquired about AEA. Section 234C.c. of the AEA for DOE and should not be a part of the a specific situation in which OSHA had requires DOE to include provisions in rule, but instead should be included in inspected facilities and found issues its contracts for an appropriate appropriate contracts. DOE does not that would take a long time to resolve, reduction in the fees or amounts paid to agree with these commenters. While VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 6876 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations contract penalties are always applicable requirements of this rule down to their using both civil penalties and contract to provisions of a contract, they may or subcontractors. Thus, if DOE elects to penalties thus supplemental proposed may not be directly linked to specific reduce the contractor’s fee, the section 851.9(c) should replace the word safety and health provisions of a contractor could in turn penalize the ‘‘may’’ with ‘‘shall’’ in the phrase ‘‘DOE contract. DOE believes that the rule subcontractor. As noted previously, shall not penalize a contractor * * *’’ strengthens enforcement options by however, a more likely scenario is that DOE disagrees with this commenter specifying that contract penalties may DOE would simply choose the civil since ‘‘may not’’ means ‘‘is not be applied to violations of the penalty option. permitted.’’ requirements of the rule. Further, As a general matter, DOE intends to Another commenter (Ex. 13) felt that including this provision in the use civil penalties as the remedy for the criteria used to make the regulation is consistent with the most violations where DOE may elect determination for imposing the civil underlying purpose of section 234C of between remedies. DOE expects to penalty rather than reducing contract the AEA. invoke the provisions for reducing fees should be embedded in the rule. Two other commenters (Exs. 29, 47) contract fees only in cases involving DOE has not adopted this suggestion. were concerned whether the reduction especially egregious violations or that Under the final rule, the decision to use in fee could exceed the $70,000 indicate a general failure to perform either civil penalties or contract maximum established for civil under the contract with respect to penalties is at the discretion of the penalties. One of these commenters (Ex. worker safety and health. Such Director and is subject to the specific 47) thought that, to be consistent with violations would call into question a circumstances of each situation. The section 234C(b) of the AEA, DOE contractor’s commitment and ability to Director will coordinate with the needed to specify a maximum of achieve the fundamental obligation of appropriate contracting official when $70,000 contract fee reduction to ensure providing safe and healthy workplaces deciding upon the appropriate penalty ‘‘legal equity’’ between the civil penalty for workers because of factors such as method. DOE believes that attempting to and the contract fee reduction willfulness, repeated violations, death, predict and develop mandatory criteria mechanism. DOE notes that except serious injury, patterns of systemic encompassing all potential where a violation is considered a violations, flagrant DOE-identified circumstances in this rule would be continuing violation, and each day is violations, repeated poor performance unnecessarily restrictive and counter to considered a separate day for the in an area of concern, or serious the provision of the statutory purposes of computing the penalty, the breakdown in management controls. requirement for flexibility and maximum civil penalty for each Because such violations indicate a discretion in the enforcement of this violation will not exceed $70,000. general failure to perform under the rule. However, for contract penalties DOE contract with respect to worker safety Another commenter (Ex. 48) will follow the Conditional Payment of and health, where both remedies are recommended revising this section to Fee Clause. Other commenters available and DOE elects to use a state that a contractor cannot be suggested additional language and reduction in fee, DOE would expect to penalized under sections 851.5(a) and definitions for this section. One reduce fees substantially under the (b) for the same violation even if such commenter (Ex. 47) suggested modifying Conditional Payment of Fee clause. violation is addressed under another the rule to state ‘‘The Director (e.g., Section 234C.d. of the AEA imposes DOE rule, regulation, or order contained principal enforcement officer) must three specific limitations on DOE’s in the contractor’s contract. The approve invocation of the Conditional authority to seek monetary remedies. commenter suggested that although Payment of Fee Clause.’’ This Specifically, DOE may not (1) both supplemental proposed section 851.9(c) commenter believed that supplemental reduce contract fees and assess civil attempts to prevent dual (contract and proposed Appendix A section IX(1)(f) penalties for the same violation of a civil) penalties for the same violation, only required ‘‘coordination’’ of all worker protection requirement; (2) with such ‘‘double jeopardy’’ could exist if violations with the DOE contract official respect to those nonprofit contractors DOE codifies DOE Order 440.1A. DOE responsible for administering the specifically listed as exempt from civil believes this commenter’s concern is Conditional Payment of Fees Clause penalties for nuclear safety violations in unfounded. The statute is clear on this when considering invoking the subsection d. of section 234A of the issue and the final rule retains the provisions for reducing contract fees. AEA, assess an aggregate amount of civil original provision to prevent the use of DOE does not agree and notes that the penalties and contractor penalties in a civil and contract penalties for the same Director has been delegated the fiscal year in excess of the total amount violation. responsibility for determining the of fees paid by DOE to that nonprofit One commenter (Ex. 54) questioned appropriate type of penalty to be entity in that fiscal year; and, (3) assess DOE’s decision not to subject applied to a given violation. When both civil penalties authorized by contractors to both civil and contract fee contract penalties are used in lieu of section 234A (nuclear safety and reduction penalties for the same civil penalties, the Director coordinates radiological protection regulations) and violation. The commenter cited the with the responsible contracting official those authorized by section 234C National Academy of Public since the selected remedy is within the (worker safety and health regulations) Administration (NAPA) studies, which purview of the contracting officer. for the same violation. These statutory show that bonuses were not effectively Two other commenters (Exs. 28, 51) limitations are set forth in sections linked to safety and health performance. presumed that a reduction in fees under 851.5(c), (d) and (e) of the rule. DOE notes that, as was described this provision could not be brought DOE received six comments on previously, the statute specifically against a subcontractor due to ‘‘privity section 851.5(c), two comments on prohibits DOE from imposing both cprice-sewell on PROD1PC66 with RULES2 of contract’’ (i.e., DOE does not have a section 851.5(d), and no comments contract and civil penalties for the same relationship with the subcontractor). specific to section 851.5(e). Several of safety and health violation. These commenters found this somewhat the comments on section 851.5(c) relate A second commenter (Ex. 37) confusing because the term ‘‘contractor’’ to the imposition of civil or contract suggested expanding supplemental was defined to include ‘‘subcontractor.’’ penalties. One commenter (Ex. 15) proposed section 851.9(c) in the final DOE requires contractors to flow the pointed out that DOE is prohibited from rule to avoid imposing a fine when a VerDate Aug<31>2005 14:54 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6877 contractor earns less than the available supplement (EGS) for worker safety and Section 851.6 of the final rule, sets forth fee as a result of a safety and health health enforcement. procedures for petitions to initiate incident. DOE does not believe an DOE notes that enforcement actions generally applicable rulemaking to expansion of the limitation is needed. A cannot be brought until the rule amend the provisions of part 851. civil penalty can only be applied if becomes effective, which is one year Section 851.7 of the final rule provides violation of the rule exists. If this after publication in the Federal for requests for interpretive rulings violation resulted in an injury, final rule Register. Moreover, enforcement actions applying the regulations to a particular section 851.5(c) would prevent DOE must be based on violations that take set of facts and providing an from implementing both civil and place after the effective date of the rule. interpretation that is binding on DOE. contract penalties for the same Furthermore, compliance with certain Section 851.8 of the final rule violation. DOE notes, however, that if an requirements (such as submission of a provides for requests for information on injury resulted from a violation, DOE worker safety and health program) is not the standards in part 851, which may be would consider this fact, as well as the required immediately upon the effective directed to the Office of Environment, severity of the injury, in determining the date of the rule. Of course, nothing in Safety and Health, Office of Health (EH– amount of penalty. the rule affects the possibility of 5). The responses given by EH–5 would Referring to the section 851.3 enforcement of contractual provisions in be advisory only and would not be definition of ‘‘contractor’’ as it applies effect prior to the effective date of the binding on DOE. In addition, to assist to section 851.5(c), the same commenter rule. the DOE community in understanding (Ex. 37) inquired what DOE expects of the technical meaning or application of Section 851.6—Interpretation ‘‘affiliates.’’ To ensure that responsible a specific requirement, EH–5 would parties such as an affiliate are held Supplemental proposed section continue to operate its safety and health responsible for the safety and health of 851.6(a) established that the Office of response line to provide information on workers, and to maintain consistency General Counsel would be responsible technical safety and health with the duties and responsibilities set for formulating and issuing any requirements, requirements published forth in 10 CFR part 820, DOE is interpretation concerning a requirement by OSHA, and other adopted standards. retaining the reference to affiliated in this part. Several commenters (Exs. In cases where the information is related entities in the definition. It is important 11, 15, 16, 31, 36, 39, 42, 48, 54) were to OSHA standards, EH–5 would to note, however, that DOE will critical of this supplemental proposed continue to consult the existing body of consider enforcement actions against provision which gave the DOE Office of OSHA interpretations on these any and all contractors associated with General Counsel an exclusive role in regulations. EH–5 would also consult a violation. All subcontractors and issuing interpretations of this part. They with OSHA representatives if OSHA suppliers of an indemnified contractor expressed concern that DOE’s interpretations did not address a unique are considered indemnified contractors, interpretations of OSHA standards DOE question or circumstance. and as such, are subject to either civil would conflict with existing OSHA penalties or contract penalties. interpretations. The commenters stated B. Subpart B—Program Requirements The two comments related to section that the codes and standards of Subpart Subpart B of the final rule establishes 851.5(d) were both received from the C require interpretation by a competent general administrative requirements to same commenter (Ex. 29). One of the technical authority and suggested that develop, implement, and maintain a comments requested that the provision DOE adopt technical interpretation worker protection program. The worker state that penalties ‘‘shall’’ (rather than procedures similar to OSHA’s—that is, safety and health program would serve ‘‘may’’) not exceed the contract fee. DOE these commenters felt the Assistant as the blueprint through which DOE notes that the language in the final rule Secretary for Environment, Safety and contractors can communicate a cohesive ‘‘may not exceed’’ is consistent with the Health should issue all technical vision for how various elements making enacting legislation. DOE understands interpretations. Two commenters (Exs. up their overall program interrelate. (and intends for) this language to mean 31, 48) suggested that DOE use the Field As a general suggestion, one that the Department is not permitted to Office staff to assist in developing commenter (Ex. 6) recommended that assess an aggregate amount of civil and interpretations and a few commenters supplemental proposed Subpart B be contract penalties against a non-profit (Exs. 15, 16, 48) recommended that DOE cross-walked against OSHA’s 29 CFR entity under the rule in excess of the adopt already existing OSHA 1910 and 29 CFR 1926 to identify total amount of fees paid by DOE to that interpretations where possible. Yet, potential overlaps and deviations non-profit entity for the given fiscal another commenter (Ex. 29) questioned between the OSHA standards and the year. The second comment (Ex. 29) whether interpretations could be proposed rule. DOE has considered the suggested that, to the extent that DOE captured in the contractor worker safety commenter’s concern but believes such may assess both nuclear safety (under and health program and approved by an effort would serve no useful purpose, 10 CFR 820) and worker safety penalties virtue of the CSO approval of the as the OSHA standards do not establish (under this rule), this final rule should program. provisions for a safety and health clarify that the penalty limit applies to Although DOE is of the view that the program. an aggregate of both types of distinction between legal interpretations assessments. DOE notes, that the statute and technical interpretations is too Section 851.10—General Requirements authorizing the assessment of civil vague for those terms to be used in part Section 850.10 establishes the general penalties for violations of the rule does 851, DOE has responded to the requirements for the worker safety and not require a limit based on total annual comments by elaborating on the health program. These requirements penalties assessed for violations of procedures available to members of the outline the basic duties of a contractor cprice-sewell on PROD1PC66 with RULES2 nuclear safety requirements. Therefore, public who want to ask for an to maintain a safe and healthful this final rule does not limit total annual interpretation or who want to ask for workplace, to comply with the penalty amounts due to penalties amendments to part 851 to clarify or requirements of this rule, and to assessed under 10 CFR 830. DOE will, alter regulatory provisions. DOE has develop and implement a written however, consider this recommendation revised proposed section 851.6 and program. A few commenters (Exs. 37, in developing an enforcement guidance added new sections 851.7 and 851.8. 48, 49, 51) expressed concern that the VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 6878 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations worker safety and health program would believed that implementation of the rule the commenter asserted, it is result in increased costs and burden of itself would have an adverse effect on unattainable as a stand-alone mandatory additional paperwork due to the its ability to ‘‘achieve national security requirement. As an alternate suggestion, extensive requirements of the rule. They missions of the Department of Energy in if the Clause was not deleted, the same were particularly concerned that an efficient and timely manner.’’ In commenter concurred with two other supplemental proposed section 851.100 response to these concerns, DOE commenters and recommended introduced new requirements above and modified the language to eliminate this including the ‘‘full context of the beyond what is expected under existing requirement from the program General Duty Clause as used by OSHA’’ DOE directives and felt that these provisions of Subpart B. Instead, final in the rule. Specifically, the commenter requirements, along with a complicated rule section 851.31(c)(3) provides for a felt the provision should state that the exemption process, would result in national defense variance where a Clause only applies where there is no increased costs. DOE acknowledges the deviation from the letter of a safety and standard and should list the four concerns of these commenters and notes health standard may be necessary and elements required by OSHA to prove a that the final rule has been revised to proper to avoid serious impairment of violation. DOE believes that the closely follow the requirements in DOE national defense. language used in final rule section Order 440.1A. Hence, DOE believes that Section 851.10(a)(1) provides that, 851.10(a)(1) for the General Duty Clause implementation of the final rule will with respect to a covered workplace for is consistent with the language result in minimal (if any) additional which a contractor is responsible, the established in the OSH Act and parallels costs. contractor must provide a place of that used in DOE Order 440.1A. As a DOE also received comments on the employment that is free from recognized result, DOE believes that its contractors subject of limited-duration contractors hazards that are causing or have the are intimately familiar with this onsite. One commenter (Ex. 40) sought potential to cause death or serious provision. However, to address these clarification that the worker safety and physical harm to workers. A similar comments and to assist in consistent health program requirements applied to provision established in section 5(a)(1) enforcement of the rule, the DOE Office all contractors, including those brought of the OSH Act of 1970 (29 U.S.C. 654) of Price-Anderson Enforcement intends in for limited-duration and limited- is commonly referred to as the General to prepare enforcement guidance scope work or tasks. DOE notes that Duty Clause and states that each supplements (EGSs) to provide guidance final rule section 851.1 clarifies that the employer shall furnish to each of his on interpretation of the General Duty worker safety and health requirements employees employment and a place of Clause, consistent with OSHA guidance of the rule govern the conduct of employment which are free from on the topic. contractor activities at DOE sites. This recognized hazards that are causing or DOE received several comments on includes limited-duration contractors are likely to cause death or serious the terminology used in supplemental along with all others (with the exception physical harm to his employees. Both proposed section 851.100(a) to refer to of contractors performing work covered OSHA and DOE currently apply this hazards. The majority of the under the exclusions in final rule provision to workplaces covered under commenters on this issue (Exs. 11, 28, section 851.2). their respective jurisdictions. 29, 39, 45, 49, 51) favored retention of Another commenter (Ex. 37) pointed A few commenters (Exs. 3, 4, 16) the term ‘‘identified hazards’’ to out that limited-duration contractors expressed concern that the phrase describe hazards that were within the will have to become familiar with a ‘‘responsible for a covered workplace’’ rule. But some of these commenters safety program foreign to them. In as applied to contractors in (Exs. 11, 29, 39, 49) suggested inclusion response to this concern, DOE believes supplemental proposed section 851.4 of additional terminology like ‘‘potential the program is based on sound worker could lead to confusion regarding hazards,’’ ‘‘unprotected hazards,’’ and safety and health principles designed to applicability of the rule to both ‘‘inherent hazards that are controlled’’ protect the safety and health of workers contractors and subcontractors. DOE has to ensure a better understanding of the on DOE sites. DOE sees no reason to retained the language in the types of hazards covered under the hold one group of DOE contractors to a corresponding section 851.10(a)(1) of provision. A few commenters (Exs. 28, lesser standard of safety and health the final rule. DOE believes that final 45, 51) favored deleting the term protection than others. DOE also rule section 851.1 clearly establishes ‘‘recognized hazards’’ from the text believes that the complexity and level of that the rule applies to contractor asserting that workers could only be effort needed to develop and implement activities on DOE sites, and the revised protected from ‘‘identified hazards.’’ worker safety and health program under definition of contractor in final rule One commenter (Ex. 27) recommended this rule will be greatly dependent on section 851.3 is clear as to what entities that DOE provide a list of specific the complexity, duration, and scope of are considered to be contractors. hazards that a place of employment the activities covered. As a result, DOE Several commenters (Exs. 12, 16, 37) should be free of to preclude subjective would expect that a limited duration expressed concern that the DOE General interpretations of the types of contractor performing a task of limited Duty Clause lacked supporting guidance recognized workplace hazards that scope would require a much simpler language, thus potentially resulting in could cause or be likely to cause death program than would a management and the risk of this obligation being or serious bodily harm. operating contractor on a large DOE interpreted more severely than OSHA’s DOE has carefully considered these facility. General Duty Clause. These commenters comments and has simplified section A few commenters (Exs. 3, 4, 45) took suggested that guidance and case law 851.10(a)(1) of the rule to require issue with the requirement in developed by OSHA should be relied contractors to provide a workplace free supplemental proposed section upon for determining violations and of recognized hazards that are causing, cprice-sewell on PROD1PC66 with RULES2 851.100(b)(3)(iii) for contractors to penalties under the DOE rule with or have the potential to cause, death or achieve national security missions of defenses commonly available in OSHA serious physical harm. Also, as the DOE ‘‘in an efficient and timely enforcement proceedings equally discussed previously, DOE has removed manner’’ and deemed it inappropriate in available to DOE contractors. One the provision in supplemental proposed a rule governing worker safety and commenter (Ex. 16) favored deleting the section 851.100(a)(2). Final rule sections health. Further, one commenter (Ex. 20) General Duty Clause altogether because, 851.21(a) and 851.22(a) further clarify VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6879 that, as part of the contractor’s worker and that, as a result, contractors are with the requirements in Subpart C that safety and health program, procedures intimately familiar with the language. are applicable to its scope of work. In must be established that contractors will Section 851.10(a)(2) requires the addition, final rule section 851.24 use to identify existing and potential contractor to ensure that work is requires contractors to take a structured workplace hazards and evaluate, performed in accordance with all approach to their worker safety and prevent, and abate associated risks. applicable requirements of Part 851 and health program and include provisions With respect to hazard protection with the worker safety and health for the applicable functional areas in the implications of the General Duty Clause, program for the workplace. One worker safety and health program. DOE several commenters (Exs. 20, 31, 36, 39, commenter (Ex. 37) expressed concerns believes that this integration of 42, 49) asserted it was impossible to about potential penalties that could requirements will reduce excess provide a workplace ‘‘free’’ of hazards result from failure to comply with the paperwork. without stopping work. Some of these worker safety and health program. One commenter (Ex. 16) expressed commenters (Exs. 31, 36, 39, 42) Specifically, the commenter was concern that the language, suggested rewriting the provision to concerned that non-compliances with ‘‘requirements * * * applicable to the require the workplace to be ‘‘free from any component of a contractor’s worker hazards identified for the workplace’’ in uncontrolled or unmitigated hazards.’’ safety and health program (even those supplemental proposed section 851.4(c) DOE has elected to retain the original outside the requirements of the rule) was confusing. The commenter noted language consistent with the provisions could result in civil penalties. This that the standards incorporated into of DOE Order 440.1A and OSHA’s commenter believed that enforcement Subpart C already included a clear General Duty Clause and will provide against provisions of a contractor’s statement of scope and questioned appropriate implementation and program that go above and beyond the whether the statement in supplemental enforcement guidance. Two other requirements of the rule will lead proposed section 851.4(c) referred to commenters (Exs. 20, 42) questioned the contractors to adhere only to the these scope statements or to some other definition of the term ‘‘adequately’’ in minimum requirements outlined in the different scope determinations, such as the context of the phrase ‘‘adequately rule and will result in a watered-down an agreed-upon set of Work Smart protected from identified hazards’’ in worker safety and health program. This Standards. DOE intends for this supplemental proposed section commenter argued that only non- phrase—revised in section 851.10(b)(1) 851.100(a)(2) and similar language in compliances with specific worker safety of the final rule to read, ‘‘applicable to section 851.4(b). As previously and health requirements in the rule the hazards associated with the discussed, DOE believes ‘‘adequate should result in civil penalties. DOE contractor’s scope of work’’—to refer to protection’’ is a clear standard that has disagrees and believes that the the individual scope of the standard or been used in other context and requirement for contractors to develop regulation for those standards specified recognizes the need to protect workers and implement an approved program in the final rule section 851.23. In the from all identified hazards. makes compliance with the provisions case of the functional area requirements Several commenters (Exs. 5, 16, 29, of the program enforceable under the specified through final rule section 48) took issue with the phrase, ‘‘likely rule. DOE expects that not enforcing 851.24, this phrase applies to the to cause death or serious bodily harm’’ these requirements would result in specific topic covered in the functional in section 851.10(a)(1). One commenter ineffective programs that are not fully area (e.g., pressure safety requirements (Ex. 5) felt that the phrase, as used in implemented. DOE also notes that a apply only to worksites with pressure supplemental proposed sections contractor’s proactive safety and health hazards). All other provisions of final 851.100(a) and 851.4(a), implied that efforts will be considered in rule Subpart C apply to all work sites only violations that could result in determining the level of penalty within the scope of the rule as specified death or serious bodily harm would associated with a violation and believes in final rule section 851.1. result in fines or penalties. This of that this will continue to compel Another commenter (Ex. 54) course is not the case. Section 851.5 of contractors to develop and implement suggested that this section should the final rule clarifies that contractors effective programs. require that contractors comply with are subject to civil or contract penalties Section 850.10(b)(1) specifies that the provisions of the rule establishing for any violations of any requirements of written program must describe how the worker rights to information. In this rule. As specified in Appendix B contractor will comply with the response to this commenter’s concern, section IX.b.2 and 3, however, DOE will requirements in Subpart C that are DOE notes that final rule section consider the severity of the hazard applicable to the hazards associated 851.10(b) requires contractors to comply posed to workers in determining the with the contractor’s scope of work. with the requirements of Subpart C of amount of the penalty imposed. The Two commenters (Exs. 16, 48) expressed the rule. Worker rights provisions are other commenters (Exs. 16, 29, 48) concern that excess paperwork would established in Subpart C and thus are argued that the phrase was too be generated due to the Subpart C included in this broad requirement. To subjective and had posed enforcement requirements to develop numerous further address this comment, DOE also problems for OSHA in the past. These functional area sub-plans in the worker added final rule section 851.20(a) to commenters felt that a change in safety and health program. The clarify management responsibilities and language or a definition of the term commenter suggested that these Subpart ensure worker rights. ‘‘serious bodily harm’’ was needed to C requirements duplicated the Subpart The same commenter (Ex. 54) also avoid confusion. DOE has modified this B requirement specifying effective suggested that the ‘‘General language slightly in final rule section implementation of supplemental Requirements’’ section of the rule 851.10(a) to replace ‘‘serious bodily proposed Subpart C in the written should include requirements to post cprice-sewell on PROD1PC66 with RULES2 harm’’ with ‘‘serious physical harm.’’ worker safety and health program. DOE appeals, variance requests, orders and This change in terminology is consistent agrees with these comments. Section all communications between the with the language in DOE Order 440.1A. 851.10(b)(1) of the final rule requires employer and DOE. DOE notes that DOE believes that this provision (and contractors to establish a written worker requirements (1) a requirement to post language) has been applied successfully safety and health program that must compliance orders is established in final through the Order for the past decade describe how the contractor will comply rule section 851.4(d); (2) requirements VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 6880 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations to post and inform employees of longer includes tailoring a requirement needs and concerns of a specific variance requests are addressed in final as a rationale for a variance. contractor is the superior approach to rule sections 851.31, 851.32, and 851.33; Section 850.10(b)(2) specifies that the providing the optimal level of worker and (3) management requirements written program must comply with any safety and health. regarding health and safety related compliance order issued by the DOE received numerous comments on information and communication with Secretary pursuant to section 851.4. One perceived increased costs and workers are established in 851.20(a). commenter (Ex. 16) objected to previous administrative burden that would result The rule does not establish a wording requiring that contractors from establishing written worker and requirement to post appeals. comply with compliance orders that are safety health programs. The majority of One commenter (Ex. 49) stated that ‘‘applicable to the workplace’’ and the commenters (Exs. 3, 4, 16, 19, 25, the supplemental proposed requirement questioned why DOE would issue a 31, 37, 38, 42, 47, 48, 49, 57) expressed to identify and document situations for compliance order under this rule that is concern that the requirements to which an exemption is needed within not applicable to the workplace. DOE develop a new discrete written program; the worker safety and health program in acknowledges the validity of the integrate and implement that program addition to identifying and observation and has removed the phrase on the worksite; and maintain, update, documenting the same situations ‘‘applicable to the workplace’’ from the and regularly audit the program would through the exemption process corresponding provision in final rule result in significantly increased costs represented an unnecessary duplication section 851.10(b)(2). and administrative burden. Two of effort which should be eliminated. commenters (Exs. 31, 48) specifically Section 851.11—Development and DOE agrees and has removed this requested that these impacts be approval of worker safety and health provision from the final rule. considered prior to codification. Several program commenters (Exs. 3, 4, 37, 42, 47, 49) Several commenters (Exs. 16, 39, 42, Section 850.11 establishes the suggested that approval of the program 45, 51) sought clarification on the procedures for the development and should be sufficient to meet the intent tailoring of worker safety and health approval of the worker safety and health of the rule without further requirements requirements required by supplemental program. One commenter (Ex. 27) to maintain, update, and audit the proposed section 851.100(b)(3). One expressed concern that vague language program. Two commenters (Exs. 19, 57) commenter (Ex. 16) suggested it was in the supplemental proposal did not favored elimination of these impractical for the rule to invoke lend itself to an enforceable rule. The requirements from the rule altogether. specific requirements (in Subpart C) and commenter pointed to the provision of Another commenter (Ex. 38) argued that then specify that implementation of the supplemental proposed section these requirements were redundant, specific requirements was to be tailored. 851.101(a)(2)(ii) requiring contractors to duplicating DOE’s existing review and The commenter pointed out that the ‘‘ensure worker safety and health approval of contractors’ environment, specific requirements were either met or programs are integrated and consistent’’ safety, and health activities like the not met. The commenter also alluded to as an example to illustrates this point. Work Smart set. DOE agrees and has a potential conflict: other provisions DOE acknowledges the commenter’s provided in final rule section 851.13 implied that formal exemptions were concern and has made every attempt to that in the event a contractor has needed for deviations from specific eliminate vague language from the final established a written safety and health requirements of Subpart C (tailoring was rule. However, DOE has retained certain program, an Integrated Safety included in the special circumstances commonly understood words and terms Management System (ISM) description for exemption criteria in supplemental in order to allow interpretive latitude to pursuant to the DEAR Clause, or an proposed section 851.301). The suit differing situations of different DOE approved Work Smart Standards (WSS) commenter recommended that much of contractors. process before date of issuance of final the required flexibility/tailoring could One commenter (Ex. 47) stated that rule, the contractor may continue to use be built into the safety and health the establishment of standards, such as that program, description, or process as requirements themselves. Two other the OSHA standards, based on well- the required worker safety and health commenters (Exs. 45, 51) requested defined Federal regulations was program if the appropriate Head of the clarification on the intent and preferable to the approved safety and DOE Field Element approves such use application of the tailoring with respect health program approach proposed in on the basis of written documentation to enforcement actions for non- the rule. The commenter noted that the provided by the contractor that compliances. Another commenter (Ex. OSHA approach takes advantage of over identifies the specific portions of the 42) requested that DOE provide specific 30 years of workplace safety and health program, description, or process, criteria to determine what would and reflects responses to hazards found including any additional requirements constitute effective implementation of in general industry. The commenter or implementation methods to be added tailored worker safety and health believed such an approach would also to existing program, description, or requirements in supplemental proposed promote consistency across the DOE process, that satisfy the requirements section 851.100(b)(3). One last complex as well as accountability for and that provide a workplace as safe commenter (Ex. 39) suggested that the specific compliance requirements. DOE and healthful as those required by the actual level of safety protection (e.g., fire acknowledges that there are some final rule requirements. protection) be specified by DOE at the advantages to having a single set of Several commenters (Exs. 39, 45, 51) start of a contract, not refined through regulations applicable to all DOE stated that processes described in the exemption process by the contractor contractors. Nevertheless, there are supplemental proposed section 851.101 well into the contract. In response to offsetting disadvantages to having a represented an expansion of the scope cprice-sewell on PROD1PC66 with RULES2 these concerns, DOE has modified the ‘‘one-size-fits all’’ approach. DOE of contractor obligations compared to language in the final rule to eliminate believes that the approach adopted in current DOE contractual requirements the requirement for tailoring of worker the final rule that includes both and orders. A few commenters (Ex. 36, safety and health programs in Subpart requirements of general applicability, 39, 42) expressed concern that B. In addition, the variance process supplemented by additional development of the worker safety and described in Subpart D of the rule no requirements tailored to the specific health plan and delays in waiting for VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6881 approval would result in increased 57) took issue with the need to prepare, and health programs by the July 25, costs. Several other commenters (Exs. submit, and obtain DOE approval of the 2005, due date. The commenters also 28, 37, 45, 49, 51) concurred and sought written safety and health program. generally recommended modification of clarification from DOE on whether costs Three of these commenters (Exs. 19, 38, the due date depending on the date of incurred by contractors and 57) asserted that the requirements for issuance of the final rule. Many subcontractors in developing and submittal, review, and approval of commenters (Exs. 13, 28, 29, 31, 33, 37, implementing the DOE-approved worker safety and health programs were 45, 47, 49, 51, 57) offered various worker safety and health program were not necessary to allow DOE to meet its suggestions for the time contractors allowable in accordance with FAR Part statutory obligation under section 3173 would need to prepare and submit the 31 and DOE Acquisition Regulation of the National Defense Authorization written worker safety and health Subpart 931 principles. Costs of Act (NDAA). One commenter (Ex. 5) program, ranging anywhere from 90 compliance with Part 851 are usually suggested that the imposition of core days to 12 months after publication of going to be allowable costs under the requirements in supplemental proposed the final rule in the Federal Register. contract under FAR Part 31 and DEAR sections 851.10 and 851.100 should DOE acknowledges the validity of the Part 970.31. Contractor costs in preclude the need for DOE to approve commenters’ concerns regarding the developing and implementing a DOE- worker safety and health plans and specific date published in the approved worker safety and health supported simply adding the rule to the supplemental proposal and has program are routine costs that are DOE list of applicable standards modified the corresponding final rule typically allowable. An exception to provided in management and operating section 851.11(a) to require contractors cost allowability might exist, however, contracts and other DOE contracts. to prepare and submit the worker safety if the action or inaction of contractor Another commenter (Ex. 13) and health program within 380 days managerial personnel is the original recommended that these provisions be after the date of publication of the final cause of the non-compliance, revised to allow the worker safety and rule in the Federal Register. In selecting particularly if the non-compliance health program to be written as an this date, DOE took into account that the violates an approved integrated safety overview or roadmap document, NDAA prohibits the rule from becoming management system. illustrating the integration of current effective until twelve (12) months after One commenter (Ex. 51) voiced the infrastructure documents (previously issuance. DOE expects contractors to concern that the worker safety and created under DOE Orders 440.1A and begin work on their worker safety and health rule would require 420 and DOE Notice 450.7). This health program immediately upon documentation and implementation commenter suggested that the level of publication of the final rule and to strategies separate from those for DOE oversight DOE already maintains over consult with DOE during the period Order 440.1A and the Integrated Safety programs under existing contract before the rule becomes effective. Management (ISM) Program. In structures justifies the submission of Accordingly, DOE believes it is response, DOE notes that the final rule merely the overview document, without reasonable to require submission of the is based on DOE Order 440.1A and any of the supporting safety worker safety and health programs no replaces Attachment 2, ‘‘Contractor management program documents. DOE later than 380 days after publication in Requirements Document of the order. In believes that the provisions for the Federal Register. In a related matter, addition, final rule section 851.11(a)(3) submission, review and approval of the DOE believes it is reasonable to require requires that the written program written safety and health program plans contractors to be in compliance with describe how the contractor will are necessary to permit the Department their worker safety and health programs integrate all requirements of Part 851 to meet its responsibilities under section no later than 470 days after publication. with other related site-specific worker 3173 of the NDAA and the AEA to DOE also received several questions protection activity and with the ensure a safe and healthful workplace. and comments on contractor- Integrated Safety Management Systems DOE further notes that the process subcontractor obligations and (ISMS). Section 851.13(b) of the rule strikes an appropriate balance between relationships with respect to clarifies that contractors who have allowing contractors and workers to development of the worker safety and implemented a written worker safety have input into the requirements, while health program. Several commenters and health program, ISM description, or recognizing that DOE management must (Exs. 13, 20, 28, 29) questioned whether Work Smart Standards process prior to the effective date of the final rule may be satisfied with their implementation. subcontractors, vendors, and delivery continue to implement that program/ These programs will also be useful to contractors needed to submit their own system so long as it satisfies the DOE’s enforcement office to evaluate worker safety and health programs or requirements of Part 851. Hence, DOE compliance with the rule. Further, the whether they were covered under the believes that the integration of these final rule recognizes that programs are programs of their prime or management existing programs with the worker already in place and are consistent with and operating contractors. One of these safety and health program will eliminate the existing mechanism for the commenters (Ex. 20) further questioned any duplication of effort and limit any submission and approval of worker whether employees of a subcontractor additional burden associated with the safety and health plans under Part 851. with a worker safety and health program rule. DOE received numerous comments on would be covered under the Section 850.11(a) requires contractors the proposed time schedule for subcontractor’s program or that of the to prepare and submit a worker safety submission of worker safety and health prime management and operating and health program that provides programs by contractors. The general contractor. DOE generally expects that methods for implementing the concern expressed by the commenters contractors with primary responsibility cprice-sewell on PROD1PC66 with RULES2 requirements of Subpart C to the (Exs. 3, 4, 5, 16, 28, 29, 31, 35, 36, 39, will develop the health and safety appropriate Head of DOE Field Element 42, 47, 51, 57) was that the programs and subcontractors will follow for approval within 380 days supplemental proposed section the programs pursuant to 851.11(a)(2) publication of the final rule in the 851.101(a) requirement allowed and (3). However, in some cases in Federal Register, February 26, 2007. insufficient time for an adequate which a subcontractor has primary Some commenters (Exs. 5, 13, 19, 38, submission of the written worker safety responsibility, it may be necessary and VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 6882 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations appropriate for them to provide a ensure the safety and health of workers Some commenters raised concerns supplemental program. In situations at multi-contractor workplaces. about site responsibility issues at multi- involving such overlap, contractors Section 851.11(a)(2) describes contractor sites. Two commenters (Exs. need to coordinate so there are clear contractor requirements if more than 3, 4) asserted that the stipulation that rules, responsibilities, and procedures one contractor is responsible for a there may be more than one contractor that result in an integrated approach to covered workplace. This section responsible for a covered workplace worker safety and health. As discussed clarifies that in such cases, each contradicts other provisions of the rule previously, vendors and delivery contractor must establish and maintain and will lead to confusion in contractors are not contractors for a worker safety and health program to application. Two other commenters purposes of the rule and in general, cover its activities and must coordinate (Exs. 29, 49) questioned whether the their employees are subject to programs with the other contractors responsible management and operating contractor at developed by the contractor under for work at the workplace to ensure that any given work place would have any OSHA’s regulatory authority. individual roles, responsibilities, and oversight, reporting, or other Nevertheless, when employees of such procedures are established to ensure responsibility for work conducted at vendors are on DOE sites, they will worker safety and health at multi- that site by another organization under benefit from the requirements put in contractor workplaces. direct contract to DOE. Another (Ex. 40) place under Part 851. One commenter (Ex. 15) sought clarification of the issue of With respect to changes in contractors recommended that the terms ‘‘integrated decentralized vs. centralized due to contract competition, two and consistent’’ in supplemental responsibility on DOE work sites and commenters (Exs. 25, 27) voiced proposed section 851.101(a)(2)(ii) be DOE assignment of contractor concern about the effects of a change in replaced with ‘‘reflect a common responsibilities for health and safety laboratory prime contractors and noted approach and level of protection’’ to requirements (e.g., traffic safety) across there was no provision in the proposed allow greater latitude in situations entire DOE sites. To address these rule dealing with such an event. One of where multiple contractors are concerns, DOE expects to publish these commenters (Ex. 27) specifically responsible for different activities in a enforcement guidance supplements suggested that given DOE’s current workplace. The commenter was of the (EGSs) as discussed in the section-by- approach of re-competing contracts, opinion that this flexibility was section discussion for Subpart E to Subpart B of the rule should be essential to ensure a focus on safety describe DOE’s planned enforcement modified to address potential changes in instead of the administrative burden of approach on multi-employer sites. DOE management and operating integration of multiple prime will base these EGSs on similar OSHA contractors—especially during the contractors. DOE agrees with this multi-employer worksite enforcement period between the effective date of the commenter and has revised section policies implemented in private rule and the one year anniversary. 851.11(a)(2)(ii) of the final rule to industry. Pursuant to the statutory requirements, require that contractors ‘‘coordinate DOE received numerous comments on the rule contemplates that a new with the other contractors responsible the subject of consistency of worker contractor is required to submit and for work at the covered workplaces to safety and health programs on multi- gain approval for its worker safety and ensure that there are clear roles, employer worksites. The main issues of health program. As a practical matter, if responsibilities, and procedures that concern included establishing a basis a prior contractor had a workable will ensure the safety and health of for ensuring consistency and the lack of program, DOE expects that the new workers at multi-contractor contractual and legal relationships contractor’s burden would be minimal workplaces.’’ between contractors. The main because it could submit a similar Several commenters (Exs. 13, 28, 45, recommendations offered to DOE by program. 51) sought clarification on this commenters in resolving these concerns Section 851.11(a)(1) describes provision, asking which contractor were for DOE to act as the coordinating contractor requirements in cases where would be responsible for submission of authority and for DOE to review and a contractor is responsible for more than the written worker safety and health make use of the OSHA Multi-Employer one covered workplace. Under such program on multi-contractor sites Policy in the DOE rule. Each of these conditions, the rule requires the requiring integration and coordination. issues is discussed in more detail below. contractor to establish and maintain a Three of these commenters (Exs. 28, 45, With respect to establishing a basis for single worker safety and health program 51) recommended that each contractor ensuring consistency of worker safety for the covered workplaces for which must maintain a worker safety and and health programs on multi-employer the contractor is responsible. One health program for the workplaces for work sites, one commenter (Ex. 45) commenter (Ex. 5) expressed the which each is responsible at a DOE site expressed concern that the language in opinion that this requirement where multiple contractors are the proposed rule was subjective, lacked contradicts the requirement for responsible for covered workplaces. measurement, and was an expectation, contractors to integrate health and safety DOE agrees with these three not an enforceable requirement. The programs with other site DOE commenters that this was the intent of commenter was of the opinion that contractors. The commenter suggested the supplemental proposal. DOE notes consistency should arise from the that one contractor should be that the final rule in section 851.11(a)(2) workforce and be handled in good faith responsible for the whole site, with all requires each contractor with by employers. The commenter further other users conforming to that responsibility for a covered workplace remarked that invoking consistency on contractor’s worker safety and health to establish and maintain a worker multi-employer worksites through program. DOE disagrees, given the safety and health program for the enforcement of a standard left the cprice-sewell on PROD1PC66 with RULES2 complexity and diversity at some DOE workplaces for which they are employer at risk for compromising their sites, each contractor responsible for responsible. Hence, at multi-contractor safety program and made DOE work at covered workplaces should sites, each contractor is responsible for responsible for the success or failure of coordinate with the other contractors to submitting its own worker safety and implementation and performance. ensure that there are clear roles, health program for the covered Several other commenters (Exs. 16, responsibilities and procedures that will workplaces for which it is responsible. 39, 47, 48, 49, 58) raised the issue of the VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6883 inherent difficulty in coordinating and integrate the contractor’s worker safety penalizing subcontractors for failure to integrating worker safety and health and health programs at a DOE site. One comply were insufficient to ensure plans at multi-employer sites due to commenter (Ex. 31) was of the opinion compliance. The commenter lack of contractual relationships that the requirement for integration recommended that the rule section be between contractors or the legal between contractors, which would ‘‘rewritten to include quantifiable authority to modify another contractor’s intrinsically seek a majority consensus, intent.’’ Two commenters (Exs. 28, 31) program. The same commenters (Exs. was in conflict with the requirement to asserted that the requirement for 16, 39, 47, 48, 49, 58) recommended that tailor the worker safety and health contractors to ensure subcontractor the coordination, accountability, and program to the work environment. The compliance would result in the need to authority for various worker safety and other commenter (Ex. 35) offered the re-negotiate legal contracts between health plans among multiple contractors observation that even though the prime contractors and subcontractors on a site should rest with DOE since purpose and basis of the worker safety and lead to increased costs. As DOE directly contracts with these and health programs of different discussed above, DOE intends to entities and maintains contractual contractors may be the same, the details address these questions in appropriate authorities. Alternatively these of each worker safety and health EGSs on multi-employer worksites commenters were in favor of deletion of program must be tailored to the specific consistent with current OSHA policy. this provision from the rule altogether. work to ensure effective However, DOE notes that all contractors, One commenter (Ex. 48) specifically implementation. DOE recognizes that including subcontractors, are requested definition of and guidelines the proposed requirement to ‘‘integrate’’ responsible for complying with Part 851 for integration and consistency and worker safety and health programs to the extent they are responsible for a suggested that the final rule establish created some confusion during the covered workplace. who would determine when integration public comment period. As a result, the In another area related to and consistency requirements were term has been removed from final rule subcontractor compliance, two adequately met on multi-employer sites. section 851.11(a)(2)(ii). This section commenters (Exs. 37, 47) were Other commenters (Exs. 49, 58) now clarifies that contractors must concerned that increased contractor specifically recommended that issues coordinate with other contractors onsite oversight and the potential penalties such as those described in the preceding to ensure clear delineation of roles, would have a negative impact on paragraphs would best be addressed responsibilities, and procedures. subcontractors and could discourage through the application of OSHA’s DOE also received numerous some subcontractors from performing Interpretation of Multi-Employer comments that argued that the work on DOE sites. DOE is required by Worksite Citation Policy regarding requirement for integration and statute to implement a worker safety creating, controlling, exposing, and coordination would result in increased and health program that covers all correcting employers. As discussed costs and additional administrative contractors, including subcontractors. elsewhere, DOE intends to prepare an burden. The commenters (Exs. 13, 19, One commenter (Ex. 29) requested enforcement guidance supplement that 31, 35, 36, 39, 42, 48) expressed concern clarification that the need to coordinate will provide guidance on multi- that integration and coordination and integrate programs applied only to employer worksites that is consistent between different contractors on a DOE multi-employer sites, not contractor/ with current OSHA policy. site would be costly and burdensome subcontractor relationships. This One commenter (Ex. 39) felt that the due to differing missions and commenter argued that contractors requirement to coordinate programs management systems and complex should require subcontractors to with other contractors responsible for inter-relationships. One commenter (Ex. conform to their programs. They should work on the covered workplace did not 39) specifically requested that DOE not be required to integrate their address the issue of application of modify standard contract terms to programs with their subcontractors’. worker safety and health requirements include the requirement to coordinate DOE’s intent with this provision is not to private entities benefiting from reuse with other onsite contractors in order to to limit the contractor’s contractual of former Federal facilities on DOE sites. allow contractors to be reimbursed for authority, but rather to ensure that For instance, the DOE site contractor costs associated with the coordination safety and health program roles, may still provide emergency response activity. DOE disagrees that contract responsibilities, and procedures are and security services to the private modifications are required since clearly understood by all contractors on entity, but the private entity would not contractors on a site currently operate a covered worksite. In fact, DOE be subject to the rule. The commenter their worker safety and health programs recognizes that requiring subcontractors sought clarification of how the with or without conflict. Conflicts are (through appropriate subcontract emergency response and security normally resolved when they occur. mechanisms) to conform to the personnel would be protected in such DOE expects that the level of contractor’s safety and health program is instances. In response, DOE notes that adjustments needed to coordinate an effective way to meet the intent of emergency response and security worker safety and health programs will final rule section 851.11(a)(2)(ii). personnel would be covered by their be minimal and that wide-scale Section 851.11(a)(3) describes the respective worker safety and health modifications will not be necessary. required components of the contractor’s program regardless of their location on DOE received several comments on worker safety and health program. a DOE site. In facilities leased to the issue of ensuring subcontractor Specifically the section requires that the community reuse organizations and compliance as required by supplemental program describe how the contractor their tenants, safety and health proposed section 851.100(b)(9). These will comply with the requirements of provisions of the lease agreement would commenters (Exs. 16, 28, 31) raised Subpart C of the final rule and how they cprice-sewell on PROD1PC66 with RULES2 apply to the leasee. concerns regarding adequate means of will integrate these requirements with Two commenters (Exs. 31, 35) enforcing compliance, potential other related site-specific worker expressed concern about the potential increased costs, and accountability protection activities and with the ISMS. conflict between the proposed rule’s concerns. One commenter (Ex. 16) Several commenters (Exs. 13, 16, 25, requirement to tailor the worker safety voiced the concern that flow-down 28, 35, 45, 51, 57) sought clarification and health program and the need to requirements and monitoring and on the nature and extent of the worker VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 6884 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations safety and health program document program approval process. The consistent review and approval and requested that DOE develop more commenter suggested that the processes by DOE field offices, and to detailed guidance on what constituted requirements enforceable via the minimize the level of effort required to an acceptable worker safety and health penalty process should be promulgated develop and obtain program approval. program. Many of the same commenters in the rule and other contractual These commenters sought specific (Exs. 27, 28, 35, 45) also questioned requirements enforced via contractual guidance on the DOE Field Office whether existing worker protection mechanisms. The commenter also noted review and approval process; the initiatives such as the ISM descriptions, that each contractor’s program would criteria for determining the appropriate Work Smart Standards, and ‘‘B-List’’ differ, which could lead to enforcement standards needed to achieve the contract requirements could be used to inconsistencies. DOE notes that the required level of protection; and fulfill new program requirements. Some enabling legislation makes both civil clarification regarding who had the were concerned with a potential and contract penalty options available burden of demonstrating ‘‘equivalency.’’ duplication of effort and the resulting to DOE. Civil penalties can be used only DOE notes that Subpart C of the final cost. One of these commenters (Ex. 28) to enforce regulatory requirements. As rule now provides more specific detail specifically sought clarification on discussed in connection with on the required content of the program. whether the new program was to be implementation, regulatory enforcement This detail is consistent with DOE Order developed based on the outline in necessarily takes into account whether a 440.1A and, as a result, is familiar to Subpart C and whether a collection of contractor has undertaken necessary DOE contractors. In addition, DOE will existing safety procedures, plans, and sufficient actions to implement the develop and publish appropriate guides, and manuals would be sufficient requirements established by the rule. implementation guidance to supplement to meet the requirement. To address Two commenters (Exs. 5, 51) sought these requirements and to assist DOE these concerns, final rule section clarification on the reason for DOE Head of Field Elements. 851.11(a)(3) requires the worker safety approval of contractor worker safety and One commenter (Ex. 48) sought and health program to describe how the health programs. One commenter (Ex. 5) clarification of the role of local DOE contractor will integrate the asserted that if DOE must approve all field offices in the approval and requirements of Subpart C of the rule worker safety and health programs and maintenance of the worker safety and with site-specific worker protection supplemental proposed Subpart E health program. DOE has clarified this activities and with ISMS. Subpart C provides that only a violation of 10 CFR point in final rule section 851.11(b), provides more detailed direction on the 851 could result in an enforcement which states that the appropriate Head required content of the program. This actions, then DOE would be liable if it of DOE Field Element is responsible for required content is closely aligned with approved a program that review and approval of the submitted the program requirements of DOE Order inappropriately excluded an element of worker safety and health program. For 440.1A. In addition, final rule section the health and safety program. Another further clarification, DOE has defined 851.13(b) allows contractors who have commenter (Ex. 51) did not agree that the term ‘‘Head of DOE Field Element,’’ implemented a written worker safety DOE approval of the health and safety as used in this rule in final rule section and health program, an ISM description plan was required, since DOE did not 851.3. (pursuant to the DEAR Clause), or a adopt responsibility or liability for the Several commenters (Exs. 13, 28, 29, Work Smart Standard process prior to content of the plan but instead would 39, 45, 51) suggested that the submitted the issuance of the final rule, to force contractors to make changes to program should be considered approved continue to implement that program, plans and field actions. The commenter if DOE does not act within the 90-day description, or process so long as it suggested that submission of a time frame allotted for approval, and the satisfies the requirements of Part 851 comprehensive safety and health program should be implemented as and is approved by the appropriate program should be sufficient and should submitted. One commenter (Ex. 13) Head of DOE Field Element. Further, the include construction health and safety specifically provided 10 CFR 830 as a existing series of implementation guides issues. The commenter also noted that model for language in this provision. developed to assist DOE contractors in DOE approval of lower-tier This commenter noted that, according to implementing the provisions of DOE implementing documents should not be 10 CFR 830, if DOE fails to approve or Order 440.1A also can assist in mandated or codified. DOE believes that reject the required plan within the implementation of the rule. Shortly after approving worker safety and health prescribed period, the existing plan is publication of this rule, DOE anticipates plans is an essential element in carrying by default approved. Another publishing updated implementation out its statutory responsibilities commenter (Ex. 48) proposed an guides revised to specifically address concerning worker safety and health. alternate time period for approval and the provisions of the final rule. DOE notes the rule does not require suggested that plans should be Section 851.11(b) of the final rule approval of ‘‘lower-tier’’ considered approved by the Cognizant delineates the responsibilities of the implementation decisions. As Secretarial Officer if they are not Head of DOE Field Element with respect previously discussed, if these contractor specifically rejected within 180 days of to evaluation and approval of worker decisions do not result in proper submission. A few commenters (Exs. 25, safety and health programs within 90 implementation of the rule, the 29, 45, 48) raised the doubt that even if days of receipt of a contractor contractor will be subject to a contractor submitted a worker safety submission. This provision further enforcement actions, including the and health program on schedule, any establishes that the worker safety and imposition of civil penalties. inability of DOE to approve the program health program and any updates will be Two commenters (Exs. 13, 42) sought could translate to a site or laboratory deemed approved 90 days after the inclusion of criteria in the rule for being completely shut down which in cprice-sewell on PROD1PC66 with RULES2 submission, if not specifically approved DOE review and approval of the written turn would place a significant risk upon or rejected by DOE within the approval worker safety and health programs. the contractors. In response to these timeframe. These commenters felt that such criteria comments DOE has modified the final One commenter (Ex. 49) sought were needed to ensure consistent rule to clarify in section 851.11(b) that clarification from DOE on the value of worker safety and health programs worker safety and health programs will the formal worker safety and health across the DOE complex, to ensure a deemed approved 90 days after VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6885 submission if not specifically approved of these commenters (Ex. 5) sought requirements of Part 851 and is or rejected by the appropriate Head of clarification of what would occur while approved by the appropriate Head of DOE Field Element. approvals were pending. The rule makes DOE Field Element. One commenter (Ex. 5) expressed it clear that a contractor cannot proceed, One commenter (Ex. 37) suggested concern that if DOE required approvals if it has not obtained approval for its that provision should be made in the and annual updates to the worker safety program. This is necessary to ensure rule to give contractors more time if and health program, then the Voluntary workplace safety and health. their worker safety and health program Protection Program (VPP) should be Nevertheless, to decrease any approvals were delayed due to a DOE eliminated since there would be no unreasonable burden, the rule provides backlog in granting exemptions. This voluntary portion of the safety and transition for existing programs. commenter felt that supplemental health program. DOE disagrees with the Several commenters (Exs. 33, 39, 38, proposed section 851.100(b)(5) required commenter. The DOE VPP status 47, 57) expressed concern that the approved exemptions as a component of requires contractors to go beyond proposed requirement for a complete the worker safety and health program. simply complying with the work stoppage on sites due to a lack of The commenter questioned how requirements of this rule. VPP promotes an approved worker safety and health Congress would respond to a facility effective, comprehensive worksite safety program failed to take several important shutdown even though the facility was and health and encourages employers to issues into consideration. Two of these in full compliance with all standards perfect existing programs (continuous commenters (Exs. 38, 57) asserted that a existing when the 2002 legislation was improvement). In the VPP, management, complete work stoppage would be an passed. DOE does not intend for labor, and DOE establish cooperative untoward response to a limited set of program approval to be contingent upon relationships at workplaces that have pending issues requiring resolution approval of variances. To clarify this implemented a comprehensive safety (such as an application for an point, DOE has removed the provision and health management system. exemption) prior to program approval. of the supplemental proposal that Approval into VPP is DOE’s official These commenters felt that the required that contractors identify recognition of the outstanding efforts of supplemental proposal ignored the need conditions that require an exemption in employers and employees who have to continue certain site activities to the program. Further, as discussed in achieved exemplary occupational safety ensure that facilities and equipment detail in the section-by-section and health programs. were maintained in a safe configuration. discussion of Subpart D, DOE does not Yet another commenter (Ex. 37) The same commenters also noted that anticipate that a large number of questioned how the prime contractor complete work stoppage would give rise variances will be requested under this would obtain timely DOE approval of to shutdown, maintenance, and startup rule. changes to the worker safety and health costs, with no benefit to DOE or the Some commenters (Exs. 6, 29, 31) program when unforeseen emergencies workers. Two commenters (Exs. 38, 47) questioned whether EH had the were involved. The commenter referred recommended substituting a more resources to review and concur or to the aging infrastructure of some DOE reasonable and graded approach for the comment on contractor programs from facilities, which may necessitate proposed ban on all work activities across the DOE complex in time to emergency repairs to utilities and should the provision be maintained. preclude work stoppage. One immediate mitigation under direct DOE has carefully considered these commenter (Ex. 29) requested that the onsite safety coordination without the comments, but has not revised this Cognizant Secretarial Officer (CSO) luxury of written safety planning. In provision of the rule. Contractors should approval process be detailed in the rule, response to this concern, DOE notes that already have a worker safety and health and questioned whether there would be the intent of its program is to establish program in place under existing contract onsite review and validation by an implementation procedures for requirements. DOE believes that 470 external DOE team similar to the ISM identifying and controlling hazards. The days is sufficient for contractors to come verification process. This commenter program itself does not list of all into compliance with the rule, including also questioned how the contractor hazards with control mechanisms for adjusting their existing programs if would be notified if the Cognizant each hazard. Therefore, the program needed. Secretarial Officer delegated approval does not need to be updated each time A few commenters (Exs. 33, 39, 45, authority to the Site Manager. DOE a new hazard is identified; rather, it 47) expressed the concern that this acknowledges these concerns and has must be updated only when a new provision of the rule fails to streamlined the approval process in the process is added or a different type of acknowledge that many sites have final rule. Specifically, final rule section hazard is introduced (or another approved ISM, Voluntary Protection 851.11(b) establishes the Head of DOE significant change occurs) that is not Program, and human performance Field Element as the approval authority effectively addressed through the programs already in place that meet or for worker safety and health programs. procedures established in the program. exceed DOE requirements for worker The rule no longer requires review and Section 851.11(b)(1) of the final rule protection. The commenters consultation by the Assistant Secretary stipulates that beginning one year after recommended that a mechanism for for Environment, Safety and Health, nor the date of publication of the final rule, approving programs that have does it provide for delegation of no work may be performed at a covered undergone ISM verification should be approval authority; however, workplace unless an approved worker included in the rule. DOE agrees with contractors must send copies of their safety and health plan program is in these commenters and has clarified in approved programs to the Assistant place for the workplace. DOE received final rule section 851.13(b) that Secretary under final rule section numerous comments about work contractors who have implemented a 851.11(b)(2). DOE does not envision the cprice-sewell on PROD1PC66 with RULES2 stoppage on sites due to lack of approval written worker safety and health use of external DOE onsite review and of worker safety and health programs. program or ISM description or Work validation teams as part of the program Two commenters (Ex. 5, 29) questioned Smart Standard process prior to the approval process. As discussed in the if the ‘‘entire contractor work ceases’’ if effective date of the final rule may section-by-section discussion for DOE does not approve a contractor’s continue to implement that program/ Subpart E, DOE will use onsite worker safety and health program. One system so long as it satisfies the inspections as a tool to verify program VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 6886 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations implementation and compliance with list of changes that would automatically industry. DOE disagrees with these other provisions of the rule. trigger a program update. Rather, DOE commenters and points out that while Many commenters (Exs. 28, 39, 45, intends for contractors to consider there is no standard that requires private 51) sought clarification on the specific work-site or process changes in light of sector employers to update their safety contract provision DOE expects to use to their current programs and determine if and health programs annually, it is a direct a contractor to stop work, their programs effectively address the common practice among responsible pointing out that a contractor may not change. If the answer is no, then the employers and is consistent with the stop performance on a contract without change would be considered protection DOE wants to afford its direction from the DOE contracting ‘‘significant’’ and thus necessitate an contractor employees. officer per DEAR 970.5204–2(g). DOE update to the program. One commenter (Ex. 29) requested notes that the stop work authority in the DOE received numerous comments on clarification on whether the annual regulation is independent from the the supplemental proposal requirement submittal was based on the calendar or contract’s provisions. Compliance for triennial (36-month) internal audits fiscal year. Unless otherwise specified, orders by the Secretary represent an of the worker safety and health program. annual updates should coincide with exercise of AEA authority, while stop One commenter (Ex. 30) supported the the anniversary date of the initial work authority in subpart C is a provision but noted that the results approval. This will alleviate having all regulatory mechanism. should also be transmitted to employees updates being submitted at the same Section 851.11(b)(2) of the final rule and their representatives. The majority time. describes contractor responsibilities of the commenters (Exs. 5, 13, 16, 28, Two commenters (Exs. 36, 42) sought with respect to distribution of the 29, 31, 35, 36, 39, 42, 48, 49), however, clarification of whether the rule approved worker safety and health disagreed strongly with the need for this required DOE approval of the annual program to the DOE Assistant Secretary requirement citing reasons ranging from submission and if so, within what time for Environment, Safety and Health. As a lack of a clear specification of the periods. The commenters expressed discussed above, this provision replaces required scope of the audit to concerns concern that the requirement for annual the proposed rule’s provision requiring regarding administrative burdens and approval could result in work stoppages the Assistant Secretary’s consultation increased costs. DOE has considered as contractors wait for approvals. One of during the program approval process. and agrees with many of these concerns; these commenters (Ex. 36) proposed that Section 851.11(b)(3) of the final rule accordingly, DOE has deleted the the rule should require DOE approval describes contractor responsibilities provision requiring 36-month internal within 30 days after contractor with respect to distribution of the audits and audit report submission from submittal. Under 851.11(b) of the final approved worker safety and health the final rule. rule, any updates must be approved 90 program to affected workers or their Section 851.11(c)(2) of the final rule days after submission. Until the updates designated worker representatives upon describes contractor requirements for are approved, a contractor should written request. DOE’s intent with this annual submission of updates to the continue to operate under its prior plan. requirement is to facilitate worker safety and health program or, Several commenters (Exs. 19, 31, 36, implementation and enforcement of the alternatively, a letter stating no changes 39, 42, 48) expressed concern that rule. In addition, this section ensures are necessary in the currently approved additional substantial costs would be that workers and their representatives program. One commenter (Ex. 49) associated with meeting the requirement have access to information related to the recommended that the requirement for for annual reviews. These commenters protection of their health during the an annual submission be eliminated recommended that impacts be performance of DOE activities. DOE from the rule. The commenter argued considered prior to codification. DOE added this provision to the final rule in that once a worker safety and health prepared an Economic Analysis for the response to commenters’ requests to program is developed, there should be final rule. The analysis was conducted clarify the management responsibilities no requirement to submit an annual at 8 DOE sites (representatives of each and worker rights specified in final rule update. The commenter also felt this type facility) and based its cost section 851.20. These commenters’ requirement was inconsistent with 10 estimation methodology on a concerns are discussed in greater detail CFR 835, which only requires DOE comparison of the requirements of this in the section-by-section discussion for approval of the Radiation Protection Part (10 CFR 851) with DOE Order final rule section 851.20. Program if changes decrease the 440.1A. Overall, the bulk of these costs Section 851.11(c)(1) of the final rule effectiveness of the program. The are attributable to requirements for describes contractor requirements for commenter asserted this requirement converting medical records to electronic submission of periodic updates to the appeared to be a purely paperwork format, the compiling and submitting of worker safety and health program to the requirement, which added no safety and written safety and health plans, and the Head of DOE Field Element for review health benefit to the process. DOE does submission of annual updates. Several and approval whenever a significant not agree with this comment. The scope sites indicated substantial costs for change or addition to the program is of the radiological work environment is maintenance of complete and accurate made or a change in contractors occurs. very specific and controls are well- hazard and exposure information, for One commenter (Ex. 29) requested defined. On the other hand, the non- communication of safety information to clarification of what would constitute radiological work environment is labor unions, and for implementation of ‘‘significant changes or additions’’ to the transitory in nature and covers a wide the electrical safety program. It is worker safety and health program. The range and large number of hazards. For estimated that the annualized costs for commenter inquired whether worker this reason, DOE contractors must 25 DOE contractor sites to comply with safety and health programs had to be annually assess the nature of the the final rule are, therefore, likely to fall cprice-sewell on PROD1PC66 with RULES2 submitted if significant changes workplace and the effectiveness of their in the range between $9.7 million (low occurred before the annual review cycle. programs. Two other commenters (Exs. estimate) to $24.8 million (high In response, DOE notes that these terms 3, 4) asserted that the requirement for estimate). Other commenters (Exs. 5, 45, are subjectively applied in determining annual evaluation and updating of the 51) proposed use of the Voluntary if an update to the program is needed. worker safety and health program was Protection Program Star site annual DOE does not envision a ‘‘cookbook’’ inconsistent with practices in general report and ISM annual self-evaluations VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6887 to meet the requirement for annual associated labor organizations of the One commenter (Ex. 42) suggested evaluations. The commenters also development and implementation of the that any DOE implementation guidance proposed integration of the submissions worker safety and health plan and to be developed for the rule should only associated with the worker safety and updates and, upon request, bargain with be enforceable if a contractor elects to health program proposed in this rule the labor organizations on place those requirements in the worker with the requirements of these other implementation of Part 851 in a manner safety and health program plan programs in order to reduce costs. DOE consistent with Federal labor laws. This submitted to DOE. DOE agrees with this notes that a contactor may use these section is included to ensure that suggestion and confirms that worker programs if they meet the requirements worker safety and health programs are safety and health guidance materials of this rule, and are approved by the developed and implemented consistent would only be enforceable against a Head of DOE Field Element. with the requirements imposed by the DOE contractor if included in the Section 851.11(c)(3) of the final rule National Labor Relations Act (NLRA) on contractor’s approved program. DOE describes contractor requirements for employers in this context, and not to notes that a guidance document is incorporating changes, conditions, or create obligations in excess of those that intended to be informative but not standards into the worker safety and would be found in such circumstances mandatory. However, while a contractor health program as directed by DOE. Two under the NLRA. need not follow the approach in a commenters (Exs. 15, 27) suggested that DOE included this provision in the guidance document, the contractor does to ensure consistency between this final rule in response to concerns raised have an obligation to regulatory provision and existing DEAR clauses about the need for involvement of requirements in the rule and the worker and contract terms and conditions, the workers or worker representatives in the safety and health programs approved by following language should be added to development and implementation of DOE by taking actions that are necessary the final rule: ‘‘* * * consistent with contractor worker safety and health and sufficient to achieve full DEAR 970.5204–2, Laws, Regulations programs. Specifically, one commenter compliance. Failure to take such action and DOE Directives (December, 2000) (Ex. 54) expressed concern that could be grounds for an enforcement and associated contract clauses.’’ supplemental proposed section 851.101 action. Similarly, other commenters (Exs. 16, did not include the means for workers Section 851.12(b) of the final rule 36, 42, 49) questioned the or their representatives to be involved in further notes that nothing in Part 851 appropriateness of this provision in a the development of worker safety and precludes contractors from taking regulatory enforcement document. DOE health programs. The means for workers additional protective action determined notes that Part 851 establishes or their representatives to be involved in necessary to protect the safety and regulatory requirements and is the development and implementation of health of workers. This section independent of any contractual the worker safety and health programs recognizes that, depending on the requirements. Accordingly, the are noted in the following sections. circumstances of the work, responsible obligation of a contractor to implement employers may have to take other Section 851.12—Implementation the regulatory requirements in Part 851 actions to protect their workers. DOE is not dependent on the existence of a Section 850.12(a) of the final rule does not intend to preclude such actions contractual obligation. In response to requires contractors to implement the by the provisions of the rule. DOE the comments, DOE has modified final requirements of Part 851. Three recognizes that individuals responsible rule section 851.11(c)(3) to make it clear commenters (Exs. 28, 45, 51) suggested for implementing worker safety and that any contractual action directed by that the worker safety and health health must use their professional the Department must be consistent with program should include an judgment in protecting the safety and these regulatory requirements. implementation schedule, since all health of workers; nothing in the rule A few commenters (Exs. 16, 42, 48) activities required by the program should be viewed as relieving these sought clarification of how the potential cannot be implemented upon individuals of their professional changes envisioned in this section of the approval—especially with respect to responsibility to take whatever actions rule would be directed. One commenter subcontractor implementation of the are warranted to protect the health and (Ex. 42) recommended that changes to contractor’s approved program. In safety of the workforce. the worker safety and health program response to the commenters’ concern, plan be agreed to by both the contractor DOE notes that final rule section Section 851.13—Compliance and DOE. Another commenter (Ex. 48) 851.11(a) requires contractors to submit Section 850.13(a) of the final rule questioned whether only the Cognizant the worker safety and health program requires contractors to achieve Secretarial Officer would be authorized for approval within 380 days of the final compliance with all requirements of to direct the incorporation of standards publication date of the rule; final rule Subpart C of Part 851 and their into the contractor’s worker safety and section 851.11(b) ensures DOE approval approved worker safety and health health program. A third commenter (Ex. of the plan within 90 days of receipt of programs no later than 470 days after 16) sought clarification of whether DOE the contractor’s submission; and final the date of publication of the final rule direction would emanate from the same rule section 851.13(a) allows contractors in the Federal Register. organizational level that is specified for to achieve compliance with the Several commenters expressed approval of exemptions. DOE approved worker safety and health concern over the supplemental proposal acknowledges these concerns and program within 470 days of the requirement for compliance with the clarifies its intent with the provision publication date of the rule. DOE rule by January 26, 2006, suggesting that under final rule section 851.11(c)(3) that believes this implementation schedule the date be modified (Exs. 13, 25, 29, 36, the Head of the DOE Field Element will provides sufficient time for contractors 42, 45, 51, 57) and recommending cprice-sewell on PROD1PC66 with RULES2 direct the incorporation of changes into to achieve compliance with the final alternate lengths of time for contractors’ worker safety and health rule requirements, particularly since the implementation from 180 days after programs consistent with the approval rule closely mirrors DOE Order 440.1A, plan approval (Ex. 47) to one year authority established in section 851.11. an order that has been in place for over following rule promulgation (Exs. 28, Section 851.11(d) of the final rule a decade, and contractors are familiar 49). DOE has clarified in final rule requires the contractor to notify any with its requirements. section 851.13(a) that contractors must VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 6888 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations achieve compliance within 470 days comments touched on issues with safety and health publications; the DOE- after the date of publication of the rule. broader implications that were approved worker safety and health Section 850.13(b) of the final rule applicable to this section, as well as to program for the covered workplace; the allows contractors who have established other requirements established standards, controls and procedures written worker safety and health elsewhere in this final rule (or other applicable to the covered workplace; the programs, ISM descriptions pursuant to rules). Modifications made to section safety and health poster that informs the the DEAR Clause, or an approved Work 851.20 in this final rule complicated worker of relevant rights and Smart Standards process before the date categorization of the comments on a responsibilities; recordkeeping logs (to a of issuance of the final rule to use them provision-by-provision basis. Thus, limited extent); and the appropriate to meet the worker safety and health comments on this section are grouped DOE form that contains the employee’s program requirement of this part if those by general topic or sentiment and are name as the injured or ill worker; (3) be programs, descriptions, and processes preceded by the following summary of notified when monitoring results are approved by the Head of the DOE both sections 851.20(a) and 851.20(b) in indicate the worker was overexposed to Field Element. This approval by the the final rule. hazardous materials; (4) observe Head of the DOE Field Element is Section 851.20(a) requires a contractor monitoring or measuring of hazardous contingent upon the contractor to ensure its managers at a covered agents, and have the results of their own providing written documentation which workplace (1) establish written policy, exposure monitoring; (5) have an identifies the specific portions of these goals, and objectives for the worker employee-authorized representative programs, descriptions, and processes safety and health program; (2) use accompany DOE personnel during an that are applicable, and additional qualified worker safety and health staff inspection of the workplace or consult requirements or implementation (e.g., a certified industrial hygienist) to directly with the DOE personnel if no methods to be added in order to satisfy direct and manage the program; (3) representative is available; (6) request the requirements of this Part to establish assign worker safety and health program and receive results of inspections and a safe and healthful workplace. If an responsibilities, evaluate personnel accident investigations; (7) express existing program is used to meet the performance, and hold personnel concerns related to worker safety and requirement for a worker safety and accountable for worker safety and health health; (8) decline to perform an health program, the contractor has a performance; (4) provide a mechanism assigned task because of a reasonable regulatory obligation to comply with to involve workers and their elected belief that, under the circumstances, the that program. representatives in the development of task poses an imminent risk of death or One commenter (Ex. 27) requested the worker safety and health program serious bodily harm coupled with a that a grandfather provision be added goals, objectives, and performance reasonable belief that there is for existing programs developed under measurement and in the identification insufficient time to seek effective the Work Smart Standards program. and control of hazards in the workplace; redress through the normal hazard DOE notes that a grandfather provision (5) provide workers with access to reporting and abatement procedures; for existing programs is established information relevant to the worker and (9) stop work on discovering under final rule section 851.13(b). This safety and health program; (6) establish employee exposures to imminently provision was added to address procedures for workers to report, dangerous conditions or other serious comments (Exs. 15, 20, 26, 27, 29, 45, without reprisal, job-related fatalities, hazards, provided that any stop work 51) regarding DOE’s intent to injuries, illnesses, incidents, and authority is exercised in a justifiable acknowledge or accept contractor efforts hazards and make recommendations and responsible manner in accordance related to existing worker protection about appropriate ways to control those with established procedures. initiatives within the DOE community hazards; (7) provide for prompt response to such reports and The comments provided to DOE on as part of the worker safety and health section 851.20 covered a wide range of program required under this rule. recommendations; (8) provide for regular communication with workers issues. Most related directly to the C. Subpart C—Specific Program about workplace safety and health management responsibility and workers’ Requirements matters; (9) establish procedures to rights provisions of this section. Certain permit workers to stop work or decline comments, however, related only Section 851.20—Management tangentially to section 851.20 (usually Responsibilities and Workers Rights and to perform an assigned task because of a reasonable belief that the task poses an on the basis of workers’ rights) and Responsibilities sometimes resulted in modifications to imminent risk in circumstances where Section 851.20 establishes there is insufficient time to use normal other sections of this rule. For example, management responsibilities and hazard reporting and abatement several commenters (Exs. 10, 30, 40, 54, workers’ rights related to worker safety procedures; and (10) inform workers of 55, 60) requested the incorporation of and health in the workplace. Contractor their rights and responsibility by various worker rights related to the managers must commit to the safety and appropriate means, including posting variance process. In general, DOE agrees health of their workforce. Section the DOE-designated Worker Protection that workers should be involved in the 851.20(a) codifies managers’ Poster. variance process and has included responsibilities, while final rule section Workers at DOE sites currently have specific rights related to this process in 851.20(b) codifies workers’ rights. DOE a number of rights related to ensuring a subpart D to the final rule. A more received a substantial number of safe and healthful workplace as detailed discussion of these comments comments on section 851.20 (previously specified under DOE Order 440.1A. and DOE’s responses appears in the supplemental proposed section 851.10). Section 851.20(b) codifies these rights section-by-section discussion for cprice-sewell on PROD1PC66 with RULES2 Although many of the comments were and makes it clear that workers may Subpart D. Similarly, a commenter (Ex. couched in terms of workers’ rights, a exercise them without fear of reprisal. 11) believed that worker rights should large proportion actually related to a Specifically, the regulations maintain include the right to receive and combination of workers’ rights and the rights of workers to (1) participate in participate in training required by management responsibilities toward activities described in section 851.20 on OSHA standards and other worker safety and health. Other official time; (2) have access to DOE requirements. The commenter expressed VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6889 concern that no provision exists in the to section 851.20 as a whole, or that the worker safety and health program rule to train workers in hazard relate to multiple provisions of this goals, objectives, and performance recognition such that they can recognize section. In one such comment (Ex. 30), measures, and in the identification and hazards posing ‘‘imminent risk of death the commenter requested that the term control of hazards in the workplace. or serious bodily harm.’’ The final rule ‘‘worker’’ be defined as an hourly Additionally, section 851.20(b)(7) as specified in section 851.23 requires worker who performs line functions in establishes the right for workers to compliance with OSHA standards areas to be inspected. Additionally, the express concerns related to worker (including standards that specify commenter believed that the definition safety and health. For issues that training requirements). In addition, the of ‘‘worker’’ should not include lawyers, involve rulemaking regarding worker final rule contains more detailed supervisors, and managers for the exposure to a hazardous substance, the provisions for training, in final rule contractor, since managerial and legal Administrative Procedures Act gives the section 851.25, which requires personnel have an interest in public (including workers) the right to employers to implement a training minimizing penalties and cannot best comment on rulemaking activities; DOE program for workers. represent worker interests during does not believe it necessary to address The same commenter (Ex. 11) inspections. As discussed previously, this issue more specifically in the rule. believed that worker rights should also worker has been defined to be DOE received several comments include the right to contact the National contractor employees performing work related to retribution and reprisal as a Institute for Occupational Safety and at a covered workplace in furtherance of result of workers exercising their rights. Health (NIOSH) to request a health a DOE mission. Seven commenters (Exs. 11, 21, 30, 40, hazard evaluation (HHE) based on A few commenters (Exs. 40, 47, 55) 44, 60, 62) expressed concern over concerns about toxic effects of a asserted that the rule should incorporate retribution against workers who report workplace substance. DOE notes that 42 worker involvement in the development violations, injuries, and unsafe work CFR 85 allows employers or authorized of worker safety and health programs. conditions and felt the regulation representatives of employees to request One of the commenters (Ex. 47) believed should preclude discrimination against HHEs by NIOSH under section 20(a)(6) that supplemental proposed section any employee for notifying DOE or of the Occupational Safety and Health 851.10 should be revised to indicate that requesting an investigation. An eighth Act of 1970. Hence, DOE feels it is not it is not just a workers’ right, but also commenter (Ex. 15) qualified a similar necessary to separately address this their responsibility to comply with the concern by suggesting that security- and issue in this rule. provisions in supplemental proposed Another commenter (Ex. 29) section 851.10. The commenter confidentiality-related issues be questioned whether supplemental recommended that the section be considered in granting worker rights. proposed section 851.10 on worker renamed ‘‘Worker rights and This commenter suggested that section rights would conflict with 10 CFR 708 responsibilities.’’ DOE agrees with this 851.20(b) include language that allows (DOE Contractor Employee Protection comment and has renamed section the worker rights without reprisal, as Program). The commenter also 851.20 of the final rule ‘‘Management long as their actions are ‘‘consistent wondered whether 10 CFR 708 would responsibilities and worker rights and with non-disclosure, confidentiality and continue to apply to worker rights with responsibilities’’ to highlight the security requirements.’’ One commenter respect to nuclear and radiological collaborative nature of the worker safety (Ex. 62) supported anonymous safety issues once supplemental and health process. As a related notifications and complaints by workers proposed section 851.10 was in effect modification, DOE has named the to DOE enforcement staff without fear of for all other safety and health issues. subsection on workers rights—section disclosure of identity to non- DOE believes that the final rule has no 851.20(b)—‘‘Workers Responsibilities enforcement personnel. This commenter impact on the applicability of 10 CFR and Rights.’’ Furthermore, final rule suggested that standardized forms to be 708. Specifically, 10 CFR 708 still section 851.20(a)(4) requires created for this purpose with an explicit applies to complaints of reprisals management to provide a mechanism to option for the complainant to select against DOE contractor employees involve workers and their elected anonymity. Furthermore under the under certain conditions. In particular, representatives in the development of Privacy Act the commenter proposed it applies for employee disclosures, the worker safety and health program that penalties should apply to participations, or refusals related to goals, objectives, and performance individuals who breach the employee’s safety and health matters, if the measures and in the identification and right to confidentiality in making a underlying procurement contract control of hazards in the workplace. complaint. This commenter argued that (described in 10 CFR section 708.4) DOE also included provision such breaches should be considered as contains a clause requiring compliance 851.20(a)(8), which requires managers to civil violations. DOE addresses these with all applicable safety and health provide for regular communication with concern related to retribution and regulations and requirements of DOE workers about workplace safety and reprisal in the final rule by including (48 CFR 970.5204–2c). Furthermore, 10 health matters. sections 851.20(a)(6), 851.20(b)(7), and CFR 708 provides employees with a Also concerned with worker rights, 851.20(b)(9). The first of these three mechanism to obtain restitution from one commenter (Ex. 11) suggested that requires management to establish the contractor in the event of a finding workers be given the right to provide procedures for workers to report, of a reprisal under the 10 CFR 708 rule, comments or testimony on possible without reprisal, job-related fatalities, but does not allow for civil or contract toxic effects of substances in the injuries, illnesses, incidents, and penalty against the contractor for workplace. DOE agrees that workers hazards and make recommendations violation of the workers’ safety and should be able to provide input on about appropriate ways to control those cprice-sewell on PROD1PC66 with RULES2 health rights. This final rule provides matters that affect them, and this final hazards. Sections 851.20(b)(7) and DOE with the mechanism to assess civil rule contains provisions to further this 851.20(b)(9) give workers the right, or contract penalties against contractors objective. Section 851.20(a)(4) requires again without reprisal, to express in such cases. management to provide a mechanism to concerns related to worker safety and As was mentioned previously, DOE involve workers and their elected health and to stop work if they discover received numerous comments that relate representatives in the development of employee exposures to imminently VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 6890 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations dangerous conditions or other serious responsibilities by appropriate means, worker safety and health committees. hazards. DOE notes that each of these including posting the DOE-designated DOE, through final rule section provisions are enforceable under the Worker Protection Poster in the 851.20(a)(4), requires management to rule and that contractors are subject to workplace where it will be accessible to provide a mechanism to involve both civil and contract penalty for all workers. Although the contractor workers and their elected noncompliance with these provision. may provide electronic access to the representatives in the development of Further, provision 851.40(c) allows poster, it must still post the poster in the worker safety and health program workers or worker representatives to areas accessible to workers. DOE further goals, objectives, and performance remain anonymous upon filing requests strengthened workers’ right to measures, and in the identification and for investigation or inspection. information through final rule section control of hazards in the workplace. Notwithstanding a worker’s right to 851.20(b)(6), which allows workers to Further, the final rule, as specified in remain anonymous, DOE notes that request and receive results of inspection section 851.11(d), requires contractors penalties could not be assessed under and accident investigations. to give labor organizations representing the Privacy Act. Such a complaint Two commenters (Ex. 29, 60) thought workers for collective bargaining timely would not be a part of a system of it important that the worker safety and notice of development and records and would not be placed in any health program be available to workers. implementation of the worker safety and sort of file identifiable by name, In response to these comments, final health program and any updates, as well employee number or other unique rule section 851.20(a)(5), DOE requires as bargain on implementation issues in identifier. Without those two that management provide workers with a manner consistent with federal labor qualifications, such a complaint would access to information relevant to the laws upon timely request. not be covered by the Privacy Act. worker safety and health program. DOE Several commenters (Exs. 11, 30, 44, Several commenters asked DOE to leaves to the contractor the discretion to 60, 62) requested that workers have the clarify or expand the rule to improve the determine the appropriate format, right to participate in enforcement flow and exchange of information and which must be accessible to all workers. actions. Three of these commenters documentation. For example, one DOE considers electronic means (Exs. 44, 60, 62) recommended that commenter (Ex. 54) requested that the accessible, provided that all employees citations be posted and that employees rule require communication pathways have access to, and the knowledge to be given the opportunity to comment on between contractors, workers, DOE, and use, computers. proposed enforcement actions. One of worker representatives. DOE agrees with Still considering the flow and these commenters (Ex. 62) argued that this comment and the final rule exchange of information, two such provisions were comparable to includes section 851.20(a)(8), which commenters (Exs. 16, 29) requested worker rights related to OSHA requires contractors to provide for clarification on what DOE considers to enforcement actions. Another regular communication with workers be the ‘‘DOE safety and health commenter (Ex. 30) asked that DOE about worker safety and health matters. publications’’ and the ‘‘standards, incorporate worker participation as a DOE will also provide guidelines to controls, and procedures’’ that were party in settlement agreements. The assist contractors in developing specified in supplemental proposed fourth commenter (Ex. 11) asserted that appropriate communication methods in section 851.10(b)(1). In a related workers should have the right to be guidance materials to be published question, one of these commenters (Ex. involved in any meetings or hearings to shortly after promulgation of this final 29) asked whether the documents to discuss objections the employer has to rule. DOE believes, however, that which workers must be provided access, allegations of safety and health stipulating the exact means and as specified in supplemental proposed violations, the assessment of penalties, methods for achieving this section 851.10(b)(1), may be provided and/or discussions or changes in communication in an enforceable ‘‘on request’’ or whether they must abatement plans, procedures, or regulation would be unnecessarily always be available. The commenter deadlines. DOE notes that Part 851’s restrictive, could undermine existing noted that the documents sometimes enforcement process is based on one communication mechanisms, and could include costly ANSI standards. DOE that has been successfully used for over hinder contractor creativity in future intends the documents to be available ten years with respect to the DOE program development efforts. and provided upon request to Nuclear Safety Requirements, a process Several commenters (Exs. 13, 16, 29, employees for review. DOE does not which does not contemplate such 30, 36, 37, 54, 62) expressed concern intend for the employer to provide each participation. DOE further notes that the over worker rights to various forms of employee with his/her own copy of the OSHA enforcement process does not information, as well as manager standards. Note that DOE would expect involve employee participation to the obligations to provide workers with the contractor to have access to (or degree requested by the commenters. In certain information. One commenter copies of) all the standards with which addition, section 851.40(c) does provide (Ex. 62) requested that employers the contractor must comply. worker representation, such as the right should be required to post a DOE Safety In a more general comment about the to request the initiation of an inspection Rule Notification Poster describing Part right of worker representatives to have or investigation. DOE concludes that the 851 that would inform workers of rule the same access to information as degree of employee participation in the provisions, the penalties of non- workers, two commenters (Exs. 11, 54) enforcement process is appropriate and compliance, how to obtain more recommended that the rule clearly state that the specific commenter requests for information and an 800 toll-free number that disclosure affects workers and their additional worker involvement in the to call. In addition, the commenter unions. Specifically, these commenters enforcement process would not be supported the idea of informative believe that worker representatives appropriate. cprice-sewell on PROD1PC66 with RULES2 workshops to explain the rule to should have the right to request DOE received several comments workers as part of training programs. information, observe monitoring, regarding multiple issues related to DOE addresses this concern in the final request relevant exposure and medical exposure monitoring. Three commenters rule by including section 851.20(a)(10), records and receive results within 15 (Exs. 16, 54, 55) worried that the which requires contractor managers to days, participate in the worker safety language in supplemental proposed inform workers of their rights and and health process, or create joint section 851.10(b)(3), which would give VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6891 workers the right to observe monitoring all potential hazards before they are that workers are entitled to reasonable or measuring of hazardous agents, could exposed, and not only when there is assurances that the inspections are be misinterpreted. Specifically, the overexposure as specified in carried out in an appropriate manner commenters believed this section could supplemental proposed section and notes that in final rule section be interpreted as implying that specific 851.10(b)(2). DOE notes that the 851.40(d) includes provisions for monitoring is required for each reference to ‘‘overexposure’’ in final rule notifying contractors of an enforcement individual worker (instead of allowing section 851.20(b)(3) applies specifically inspection. DOE believes, however, that representative sampling), or as to notification of monitoring results. establishing qualification standards for suggesting that contractors do not have Other sections of the rule—sections DOE federal staff is beyond the scope of to share monitoring results with 851.20(b) and 851.25—require employee this rule; instead, DOE will follow unmonitored workers performing the training and access to information on appropriate personnel qualification same job. These commenters felt that workplace hazards and controls. standards for federal staff. DOE also representative sampling results should The right of workers to participate in believes that establishing detailed be provided to all affected workers. monitoring and inspection activities provisions on how contractors must However, two other commenters (Exs. attracted several comments. DOE implement specific provisions of the 26, 49) disagreed, asserting that the received several comments (Exs. 13, 16, rule (such as how to notify workers of requirement should be limited to 29, 36, 42, 49, 57) expressing the general an inspection) would be too providing workers with only their own concern that workers would abuse the prescriptive. DOE believes that results, in keeping with the Privacy Act. rights afforded to them in sections contractors are the entities best able to The commenters believed that workers 851.20(b)(1), (b)(4), and (b)(5), which determine appropriate implementation are unlikely to be qualified to interpret give workers the right to participate in procedures for their own sites and monitoring results for the whole activities, observe monitoring results, workforce. Of course, contractor failure workplace. To ensure timely transfer of and accompany DOE personnel during to comply with the worker rights information, one commenter (Ex. 16) an inspection. The commenters felt that provisions of the final rule could subject recommended that DOE specify a time these activities could result in the contractor to an enforcement action frame within which a contractor should disruption of work. DOE notes the under the rule. provide employees with exposure commenters concerns and has modified DOE also received comments related results (e.g., results of applicable the language in the final rule. to worker rights after inspections are exposure monitoring must be provided Worker rights and employer completed. Two commenters (Exs. 36, to employees within 90 days following responsibilities during inspections also 49) expressed concern about a worker’s analysis). Further, one commenter (Ex. attracted a number of comments. Many right to request and receive results of commenters (Exs. 11, 13, 29, 36, 39, 42, inspection and accident investigations. 49) believed that allowing workers to 47, 49, 54, 57) expressed concern about One of these commenters (Ex. 36) enter operational areas ‘‘to observe a worker’s right to accompany DOE described the current policy of some monitoring’’ conflicts with the exposure personnel during an inspection of the facilities to allow workers to obtain such reduction and minimization aspects of workplace. The commenters believed results on a need-to-know basis only. Part 850 and RADCON As Low As that the rule should include access The other commenter (Ex. 49) believed Reasonably Achievable Principles. With requirements to be met in order to that workers can only request and respect to Privacy Act concerns, DOE accompany DOE personnel on receive results that are not exempt from notes an individual’s test results would inspection. For example, commenters disclosure under the Privacy Act or the be protected. The only way that test recommended that a designated Freedom of Information Act. An results could be disseminated to all employee representative or an additional commenter (Ex. 29) workers in an aggregated manner is if appropriate safety person, organization, questioned whether these ‘‘results’’ they are complied with the following or entity should accompany DOE on include DOE records or just contractor language pursuant to 5 U.S.C. 552(b)(5): inspections. DOE agrees that the records. DOE notes that a worker can Disclosure may be made to a recipient individual accompanying inspectors only receive information or results, for who ‘‘* * * has provided the agency should not be selected arbitrarily. In the his or her own personal record. The with advance written assurance that the final rule, section 851.20(b)(5) requires worker must designate in writing a record will be solely used as a statistical that an ‘‘employee-authorized representative to receive personal research or reporting record, and the representative’’ be allowed to to information. record is to be transferred in a form that accompany DOE on inspections. When One commenter (Ex. 11) believed that is not individually identifiable.’’ no representative is available, the worker rights should include the right to DOE received two comments on the inspector must consult with employees request action from an employer to use of the term ‘‘overexposure’’ as it on matters of worker safety and health. correct hazards or violations even if the relates to employee notification of Further, section 851.40(c) of the final hazards are not violations of specific results exceeding allowable exposure rule establishes the right of worker OSHA standards or other specific levels. One of these commenters (Ex. 54) representatives to request an inspection requirements. DOE notes that final rule suggested that the phrase ‘‘was or investigation, with supporting section 851.20(b)(7) gives workers the overexposed to hazardous materials’’ in documentation, based on criteria right to express concerns about worker supplemental proposed section outlined in the section. safety and health issues. DOE intends 851.10(b)(2) be replaced with ‘‘exposure In a related comment, two of the same for this section to include all health and exceeded limits established by OSHA.’’ commenters (Exs. 13, 29) suggested that safety concerns, not just hazards DOE disagrees, that a change in wording allowing workers to go on DOE addressed by specific OSHA standards. cprice-sewell on PROD1PC66 with RULES2 is necessary since the term overexposed inspections raises implementation DOE received two comments related is commonly understood to mean concerns (for example, regarding worker to proposed provisions, retained as exposures above an established limit and contractor notification of sections 851.20(a)(9) and 851.20(b)(9) in (whether set by OSHA, ACGIH, or DOE). inspections and inspector qualification this final rule, which respectively cover The other commenter (Ex. 11) believes standards to ensure consistency of managers’ responsibilities and workers’ that employees should be informed of inspections across facilities). DOE notes rights to stop work when a serious VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 6892 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations hazard is discovered or believed to be work provisions. Within this document assessment for workplace present. One commenter (Ex. 28) framework, DOE contractors are free to hazards using recognized exposure objected to the use of the word develop stop work procedures that they assessment and testing methodologies ‘‘discover’’ in supplemental proposal feel most effectively protect workers and using accredited and certified section 851.10(b)(8), believing that such (and empower workers to protect laboratories; (3) record observations, a term suggests willful deceit or themselves) and allow for prompt testing and monitoring results; (4) ignorance on the part of managers. The corrective action in the event of an analyze designs of new facilities and commenter stated that while stop work imminent danger situation. Since this modifications to existing facilities and authority is needed, it should be provision has been required of DOE equipment for potential workplace implemented in a controlled manner in contractors under DOE Order 440.1A for hazards; (5) evaluate operations, accordance with ‘‘established the past 10 years, DOE would expect procedures, and facilities to identify procedures, which include but should contractors to apply existing stop work workplace hazards; (6) perform routine not be limited to pre-work briefings of procedures with slight modifications if job activity-level hazard analysis; (7) prevailing working conditions.’’ DOE deemed necessary based on lessons review site safety and health experience intends for the term ‘‘discover’’ in final learned from 10 years of experience information; and 8) consider interaction rule section 851.20(b)(9) to imply that implementing this provision. between workplace hazards and other the hazard was not previously identified hazards such as radiological hazards. Section 851.21—Hazard Identification Most of the comments that DOE through workplace assessment and and Assessment received on this section relate to the hazard identification procedures. DOE also expects that any identified hazards Section 851.21 establishes the scope of the required hazard assessment would have been mitigated and contractor’s duty to enact procedures for procedures. Two commenters (Exs. 42, controlled prior to allowing workers to identifying hazards and assessing the 47) suggested that it is not feasible to proceed with activities in a work area. related risks in the workplace. This consider all hazards, as specified in DOE agrees that the rights granted under section lists activities contractors must supplemental proposed section this provision should be exercised in a perform as part of their hazard and risk 851.100(b)(1)(v), and that only relevant controlled manner. Hence, section assessment procedures (e.g., conducting hazards should be considered. DOE 851.20(a)(9) of the final rule requires workplace monitoring, evaluating believes that to be effective, a worker contractors to develop appropriate operations). Under this section, safety and health program must procedures to implement stop work contractors must also provide a list of establish and implement procedures authority. closure facility hazards and associated that will identify potential workplace In related comments, three controls to the Head of DOE Field hazards and evaluate the associated commenters (Exs. 11, 28, 48) thought Element, who will accept the controls or risks. In the final rule, section 851.21(a) that the language in supplemental direct specific additional actions requires that such procedures be proposed section 851.10(b)(8) was too described in this section. established. Contractors are to identify vague, broad, or subjective. DOE notes DOE received a number of comments hazards that are to be identified by that this stop work authority provision that expressed concern about the assessing worker exposures to chemical, is similar to the provisions in DOE subjectivity of the supplemental physical, biological and safety hazards Order 440.1A. DOE is not aware of any proposed section 851.100(b) language identified through appropriate problems with the implementation of concerning identification and workplace monitoring and job activity this provision under 440.1A and evaluation of workplace hazards, and level hazard analysis. These methods therefore, has retained this provision in particularly the requirement in section are designed to identify the hazards to the final rule. 851.100(b)(1)(iii) to evaluate potential which workers may be exposed. Another commenter (Ex. 54) believed hazards that may arise from Through this process, DOE expects that that worker representatives should be unforeseeable conditions. A number of contractors will be able to determine allowed to participate in a review of commenters (Exs. 13, 15, 16, 20, 25, 27, which hazards are relevant to specific stop work conditions. The commenter 31, 36, 42, 49) recommended that the work situations. suggested that such issues are resolved supplemental proposed requirement to Two other commenters (Exs. 42, 47) more quickly and effectively when evaluate potential hazards from expressed concern that supplemental employer and employee representative unforeseeable conditions be eliminated proposed section 851.100(b)(1)(vii) to (as well as external experts such as or replaced, based on their opinion that (ix) went beyond the scope of the ISMS. OSHA and DOE Environment, Safety this is an ambiguous, general While the commenters believed that and Health) are involved. DOE requirement that unreasonably puts these provisions were beneficial and acknowledges these concerns and contractors in the position of trying to appropriate for a worker safety and believes the concerns are addressed by foresee the unforeseeable. DOE has health program, they did not believe existing provisions of the final rule. eliminated the requirement in the final that these provisions should be part of Specifically, section 851.20(a) rule. DOE also has modified the final the rule. DOE believes that these establishes a wide array of management rule to include section 851.21, which provisions are necessary requirements responsibilities for ensuring worker provides specific requirements to guide for a contractor’s worker safety and rights under and involvement in the contractors’ hazard identification and health program. In the final rule, safety and health program. Final rule risk assessment activities. however, DOE has reorganized these section 851.20(a)(9) further requires Section 851.21(a) requires contractors provisions to be more consistent with contractors to develop appropriate stop to establish procedures to identify the requirements of DOE Order 440.1A, work procedures for workers and existing and potential workplace which have been in use for the past 10 cprice-sewell on PROD1PC66 with RULES2 section 851.20(a)(7) requires contractors hazards and assess the risk of associated years. Accordingly, final rule section to provide prompt response to worker workers’ injury and illness. These 851.21(a), requires contractors to reports of workplace hazards. DOE procedures must include methods to: (1) develop procedures using specified believes that these combined provisions Assess worker exposure to chemical, methodologies (mirroring those provide DOE contractors an adequate physical, biological, or safety workplace established in DOE Order 440.1A) to framework to develop appropriate stop hazards through monitoring; (2) assess and document the risk of worker VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6893 injury and illness associated with would require the use of accredited or days to accept the closure facility existing and potential hazards. certified laboratories. Specifically, one hazard controls or direct additional A number of commenters were of these commenters (Ex. 5) asked if the actions to either (1) achieve technical concerned about the extent to which provision for ‘‘documenting assessments compliance or (2) provide additional Part 851 would apply to radiological for chemical, physical, biological and controls to protect the workers. DOE hazards. Several commenters (Exs. 16, safety workplace hazards using intends section 851.21(b) to be 20, 31, 36, 42, 47, 48, 49) believed that recognized exposure assessment and implemented in a manner that is there is no utility in addressing testing methodologies and use of consistent with the provision in the radiological hazards in the worker safety accredited or certified laboratories’’ also NDAA on taking into account the and health program document since required contractors to use accredited or special circumstances associated with they are already considered, and certified laboratories for performing facilities that are or will be permanently controlled through a contractor’s other related activities. Another closed, demolished or subject to title Radiation Protection Program and commenter (Ex. 16) believed that certain transfer and that minimizes the need for Radiation Protection Manual in highly contaminated samples may fall variances. compliance with Price-Anderson outside the capabilities of commercially One commenters (Ex. 28) believed Nuclear Safety Regulations such as 10 available laboratories. Therefore, this that DOE sites within one year of a CFR 835. Two other commenters (Exs. commenter felt that this provision formal declaration of site closure should 13, 39) requested that DOE clarify should be either deleted or modified to be exempt from compliance with Part whether Part 851 applies to radiological clarify which assessments require 851 and a separate exclusion to this hazards. If so, one of these commenters accredited or certified laboratories, effect should be included under section (Ex. 13) wondered whether it is DOE’s which accreditation or certification 851.1. Another commenter (Ex. 39) intent to apply this rule to radiological authorities should be used, and what asked for clarification of the types of hazards at a lower threshold than the provisions are for frequency and ‘‘special circumstances’’ that should be regulated by 10 CFR 820, 830, or 835. equivalency. Both this commenter (Ex. considered for a workplace that is (or is In section 851.2(b) of the final rule, DOE 16) and another commenter (Ex. 27) expected to be) permanently closed, clarifies that Part 851 does not apply to believed that any requirement for use of demolished, or transferred to another radiological hazards to the extent they accredited or certified laboratories entity. This commenter (Ex. 39) also felt are regulated by 10 CFR Parts 820, 830, should be evaluated with respect to that the supplemental proposed section and 835. Section 851.21(a)(1) requires potential costs versus benefits, since use 851.100(b)(3)(ii), needed to be clarified contractors to develop procedures that of such laboratories could result in with respect to the types of include methods for identifying and increased costs and time. DOE believes circumstances considered relevant to a assessing hazards related to chemical, that the converse would likely be true, proposal for modified requirements at physical, biological, and safety work since not using a certified laboratory sites scheduled for closure, demolition, exposures only. Final rule section would involve such efforts as or transfer. DOE agrees that the original 851.21(a)(8) makes clear the need to establishing quality control and supplemental proposed language related consider other hazards. quantitative analysis processes etc. to what is now termed ‘‘closure DOE received a few comments related Therefore, these efforts would likely be facilities’’ was unclear, and has revised to sampling and laboratory analysis. more costly than using an established this section of the final rule. In final rule One such commenter (Ex. 16) requested accredited laboratory. DOE also notes section 851.21(b), DOE requires that DOE clarify the language in that reliance on accredited and certified submission of a list of closure facility supplemental proposed section laboratories is consistent with hazards that cannot be fully abated or 851.100(b)(1)(vii) by defining what requirements established under DOE controlled within 90 days after constitutes ‘‘appropriate workplace Order 4040.1A, OSHA standards, and identification of the hazards in a monitoring’’ (i.e., whether it is in accepted industrial hygiene professional manner that achieves strict technical relation to the number of samples, the practice. compliance with applicable regulatory frequency/timing of samples, One commenter (Ex. 16) requested requirements. The Head of DOE Field qualifications of those conducting the that DOE clarify what kinds of ‘‘safety Element has 90 days to accept the sampling, a comparison of results to and health information’’ contractors are closure facility hazard controls limits, etc.). The commenter required to review, as referred to in identified by the contractor as sufficient recommended that ‘‘appropriate’’ either supplemental proposed section to ensure a safe and healthful workplace be defined objectively or by reference to 851.100(b). To clarify this, DOE or direct additional action to either OSHA standards used for workplace provides in final rule section achieve technical compliance or provide monitoring. DOE disagrees that more 851.21(a)(7) that contractors hazard additional controls to protect the specificity is needed, and believes it is identification and assessment workers. understood that the term ‘‘appropriate’’ procedures must include provisions for Final rule section 851.21(c), which in this case means using recognized the review of site safety and health was supplemental proposed section methods for workplace monitoring such experience information. DOE anticipates 851.100(b)(1), requires contractors to as those published by the American that such information could include, but perform the activities identified in Industrial Hygiene Association or the may not be limited to, injury and illness section 851.21(a), initially to obtain National Institute for Occupational data, inspection results, accident and baseline information, and again as often Safety and Health, etc. DOE notes, near miss investigation results and as necessary. The commenter (Ex. 35) however, its intent to develop trending data, etc. inquired whether the intent was to supplemental guidance material Section 851.21(b) requires contractors require a baseline hazard assessment to cprice-sewell on PROD1PC66 with RULES2 following publication of the final rule to to submit to the Head of DOE Field identify hazards for every workplace. assist contractors in implementation of Element a list of closure facility hazards The commenter asked whether it might the rule. and the established controls within 90 also be acceptable to describe only the Other commenters (Exs. 5, 16, 27) days of identifying such hazards. The basic hazards of the workplace initially, expressed concern that supplemental Head of Field Element, with while also providing a method in the proposed section 851.100(b)(1)(viii) concurrence by the CSO, will have 90 worker safety and health program for VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 6894 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations detailed real-time, job-specific hazard provision, the reference to ‘‘adequate for service providers to evaluate unsafe and safety analysis to be conducted protection’’ has been eliminated. work practices. The commenter immediately prior to beginning the Section 851.22(a) requires contractors recommended that the reference to work. The commenter went on to state to establish and implement a hazard services be deleted. The other that this latter (real-time assessment) prevention and abatement process to commenter (Ex. 54) recommended would be performed to ensure that ensure that all identified and potential rewording the provision in light of the changing worksite conditions have not hazards are prevented or abated in a concept of inherently safer design to impacted hazards and associated timely manner. For hazards identified require ‘‘reduction in hazards to mitigation strategies since the time either in the facility design or during the workers by ensuring that equipment when the basic hazards were described development of procedures, contractors purchase, lease or rental, process and in the initial assessment. DOE believes are required to incorporate controls in equipment design and all acquired the requirements in final rule section the appropriate facility design or services are selected with worker safety 851.21 are appropriate, and declines to procedure. For existing hazards and health as a priority.’’ DOE believes accept this commenter’s suggestion. It is identified in the workplace, contractors that worker safety and health should be DOE’s intent that within the framework are required to (1) prioritize and a primary consideration in performing provided in final rule section 851.21(c), implement abatement actions according work and should be considered in all the contractor must identify existing to the risk to workers; (2) implement aspects of the work, including the and potential workplace hazards using interim protective measures pending selection and purchasing of equipment, the prescribed methods in section final abatement; and (3) protect workers products, and services. As a result, this 851.21(a), for new and existing facilities, from dangerous safety and health provision is retained in the final rule. operations, and procedures. The conditions. One commenter (Ex. 16) requested that the term ‘‘imminently Section 851.23—Workplace Safety and contractor must establish and dangerous conditions’’ in supplemental Health Standards implement hazard identification and risk assessment procedures initially to proposed section 851.100(b)(2)(iii) be Section 851.23(a) requires that obtain baseline information and again as defined. DOE has modified the language contractors comply with the following often as necessary to ensure compliance in final rule section 851.22(a)(2)(iii) to standards, if applicable to the hazards at with the regulation in Subpart C. read ‘‘dangerous safety and health their workplace: (1) Title 10 CFR 850, Section 851.21(a) also requires routine conditions.’’ These terms are commonly ‘‘Chronic Beryllium Disease Prevention job activity level hazard analyses to be understood and need not be defined in Program’’; (2) Title 29 CFR Parts 1904.4 performed. The final rule intends for the Part 851. through 1904.11, 1904.29 through contractor to develop and include the Section 851.22(b), which corresponds 1904.33; 1904.44 and 1904.46, process for performing hazard to supplemental proposed section ‘‘Recording and Reporting Occupational identification in the worker safety and 851.100(b)(2)(iv), requires contractors to Injuries and Illnesses’’; (3) Title 29 CFR health program, but the contractor is not select hazard controls based on the Part 1910, ‘‘Occupational Safety and required to present the full results of the following hierarchy: (1) Elimination or Health Standards,’’ excluding 29 CFR hazard assessment in the worker safety substitution of the hazards where 1910.1096, ‘‘Ionizing Radiation’’; (4) and health program. feasible and appropriate, (2) engineering Title 29 CFR Part 1915, ‘‘Shipyard controls where feasible and appropriate, Employment’’; (5) Title 29 CFR Part Section 851.22—Hazard Prevention and (3) work practices and administrative 1917, ‘‘Marine Terminals’’; (6) Title 29 Abatement controls that limit worker exposures, CFR Part 1918, ‘‘Safety and Health Final rule section 851.22 establishes and (4) personal protective equipment. Regulations for Longshoring’’; (7) Title the requirement for contractors to Two commenters (Exs. 16, 27) believed 29 CFR Part 1926, ‘‘Safety and Health develop and implement a process for that the hierarchy of hazard controls Regulations for Construction’’; (8) Title preventing, prioritizing, and abating should acknowledge appropriate 29 CFR Part 1928, ‘‘Occupational Safety hazards in the workplace. Under this economic and technical feasibility, work and Health Standards for Agriculture’’; section contractors must abate hazards activity duration, and available (9) ACGIH ‘‘Threshold Limit Values using a prescribed hierarchy of controls, technology constraints that are (TLV) for Chemical Substances and starting with elimination (or important and practical considerations Physical Agents and Biological substitution) and ending with personal in compliance. DOE acknowledges these Exposure Indices,’’ when the ACGIH protective equipment, which is to be concerns and section 851.22(b) of the TLVs are lower (more protective) than used only as a last resort. Hazards must final rule has expanded to clarify that permissible exposure limits in 29 CFR also be considered when contractors substitution or elimination of hazards part 1910 (note that when the ACGIH purchase equipment. As a general and the use of engineering controls TLVs are used as exposure limits, comment on the section as a whole, should be used where feasible and contractors must nonetheless comply three commenters (Exs. 28, 45, 51) appropriate, and use of work practices with the other provisions of any believed that the term ‘‘adequately and administrative controls to limit applicable expanded health standard protected’’ is ambiguous in worker exposures. found in 29 CFR Part 1910); (10) ANSI supplemental proposed section Section 851.22(c) requires contractors Z88.2, ‘‘American National Standard 851.100(a)(2) and implies that if an to address hazards when selecting or Practices for Respiratory Protection’’; injury occurs by any means, the purchasing equipment, products, and (11) ANSI Z136.1, ‘‘Safe Use of Lasers’’; program would not have provided services. Two commenters (Exs. 31, 54) (12) ANSI Z49.1, ‘‘Safety in Welding, ‘‘adequate protection.’’ The commenters expressed concern about the Cutting and Allied Processes,’’ sections believed that the program should supplemental proposed section 4.3 and E4.3 (of the 1994 edition or cprice-sewell on PROD1PC66 with RULES2 provide an acceptable level of worker 851.100(b)(2)(v). One commenter (Ex. equivalent sections of sequent editions); protection based upon determination of 31) believed that this provision poses a (13) NFPA 70, ‘‘National Electrical acceptable risks for identified hazards. problem because it is difficult to judge Code’’; and (14) NFPA 70E, ‘‘Electrical As discussed previously, DOE believe the safety of services based on human Safety in the Workplace.’’ These ‘‘adequate protection’’ is a proper performance, and that this provision mandatory standards establish baseline standard. However, in revising this would require review of safety records technical safety and health requirements VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6895 for DOE workplace operations. These requirements of this rule and are DOE received a few comments that standards are already required by DOE approved by the appropriate Head of the recommended additional codes or Order 440.1A, and are enforced through DOE Field element. Furthermore, DOE standards that should be incorporated contract mechanisms. Section 851.23(b) notes that the standards included in into this rule. A commenter (Ex. 24) provides that Part 851 may not be final rule section 851.23(a) have in fact suggested that DOE should adopt by construed as relieving a contractor from been reviewed and approved by an reference the International Code Council the obligation to comply with any existing DOE safety and health process. (ICC) International Codes as the additional specific safety and health Specifically, these standards were foundation for DOE rules on facility requirement that the contractor included in DOE Order 440.1A which design, construction, renovation, and determines is necessary for worker was the result of extensive coordination worker safety, based on the premise that protection. among safety and health professionals these codes are consistent with DOE DOE received a substantial number of throughout the entire DOE community Orders 420.1 and 440.1A and have been comments on this section, many of and was concurred on by all DOE widely adopted throughout the United which applied to the section as a whole. Secretarial Officers and approved by the States by other federal facilities, state One commenter (Ex. 28) noted that Secretary of Energy. and local facilities, and the private supplemental proposed sections Several commenters (Exs. 30, 60, 62) sector. The commenter believed that to 851.201 through 851.210 did not believed that 10 CFR Part 850, Chronic do otherwise would foster non- include requirements for chemical or Beryllium Disease Prevention Program uniformity and would likely result in radiological protection, and (CBDPP), should be included as an increased costs and decreased worker recommended that DOE specifically safety. DOE acknowledges the enforceable standard under the rule or, define ‘‘recognized areas of protection.’’ commenter’s concern but notes that the and another commenter (Ex. 49) asked DOE has clarified in final rule section final rule only includes those consensus DOE to clarify its intent in that regard. 851.2(b) that Part 851 does not apply to standards originally required by DOE The latter commenter (Ex. 49) argued radiological hazards to the extent Order 440.1A. DOE believes that this that 10 CFR part 850 is a performance- regulated by 10 CFR 820, 830, or 835. change is consistent with intent of based standard and did not provide an Further, Subparts B and C establish Section 3173 of the NDAA and is adequate technical basis to ensure general and specific worker safety and appropriate in this regulatory context. consistent enforcement, and believes health program requirements that DOE will continue to encourage that DOE should provide contractors must implement to protect contractors to comply with applicable workers from workplace hazards, which implementation guidance for 10 CFR consensus standards where appropriate as defined in section 851.3 of the final part 850 if the Department intends to and will require compliance with rule include physical, chemical, enforce that rule under 10 CFR part 851. selected standards through DOE biological, or safety hazards with any Another commenter (Ex. 30) asked that directives such as DOE Order 420.1 and potential to cause illness, injury, or DOE expand the scope of 10 CFR part DOE contracts where needed. DOE also death to a person. 850 to cover the United States notes that final rule section 851.23(b) Numerous commenters (Exs. 6, 15, 16, Enrichment Corporation (USEC) requires contractors to comply with any 20, 28, 29, 33, 37, 45, 47, 48, 51) argued facilities in Portsmouth, Ohio and additional safety and health that compliance with the DOE-approved Paducah, Kentucky. DOE has requirement that they determine to be contractor worker safety and health considered these comments and agrees necessary to protect the safety and program, Work Smart Standards, or that 10 CFR Part 850 should be health of workers. Contractors Requirements Document enforceable under Part 851. Another commenter (Ex. 30) should constitute compliance with this Accordingly, final rule section recommended that an indoor air quality regulation. Three of these commenters 851.23(a)(1) requires contractor standard and an ergonomics standard be (Exs. 6, 15, 28) alternatively suggested compliance with 10 CFR part 850. In included in the rule and made that DOE should include in the final addition, DOE has included a enforceable. DOE notes, however, that rule DOE directives or standards that modification to 10 CFR part 850 as a both indoor air quality and ergonomic have already been identified through part of this rulemaking effort to clarify hazards fall within the purview of an various DOE approved processes and that a contractor’s CBDPP should industrial hygiene program. incorporated into existing contracts, and supplement and be an integral part of Accordingly, DOE expects that then define their relationship or the worker safety and health program contractors will address such hazards functionality within the rule. Two other required under 10 CFR part 851. This through the implementation of their commenters (Ex. 12, 42) requested that rulemaking effort does not, however, industrial hygiene program established the rule clarify how DOE orders other expand the scope of 10 CFR part 850. in accordance with Appendix A, section than DOE Order 440.1A in prime DOE’s intent with this rulemaking 6 of the final rule. DOE expects to contracts should be addressed in regard effort, as clarified in final rule section develop guidance material to assist to the worker safety and health 851.2, is to establish worker safety and contractors in implementing these and requirements. DOE has incorporated health program provisions for contractor other requirements of the final rule. relevant DOE directives into the workplaces under DOE’s jurisdiction, Another commenter (Ex. 29) indicated appropriate sections of the final rule. As not for those under OSHA’s jurisdiction that much of the detailed codes listed in discussed in the section-by-section as are the USEC facilities mentioned the supplemental proposal should be discussion for Subpart B of the final above. DOE also notes in regards to the replaced by reference to the major rule, DOE has also included provisions commenter’s (Ex. 49) request for CBDPP design codes. As noted above, however, in section 851.13(b) to allow contractors guidance material, that DOE has already DOE has eliminated all but a handful of cprice-sewell on PROD1PC66 with RULES2 to use existing worker safety and health published such guidance in DOE G consensus standards from the final rule programs established under the 440.7A. DOE further notes that 10 CFR consistent with the standards originally Integrated Safety Management System, part 850 is already enforceable through mandated under DOE Order 440.1A. Work Smart Standards process, or other contract mechanisms on DOE sites, and Along similar lines, several commenters worker safety and health process has been since its original promulgation (Exs. 2, 16, 20, 24, 31, 33, 37) provided that such programs meet the in January, 2001. specifically requested that the VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 6896 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations International Building Code (IBC) of the will consider the need for updating the standards listed in the supplemental ICC International Codes replace NFPA referenced standards. proposed rule. The standards mandated 5000 since several contractors currently Other comments specifically in final rule section 851.23(a) are adhere to IBC. DOE agrees and has addressed the problems associated with consistent with those required under the removed NFPA 5000 from the final rule. updating older facilities and systems existing DOE Order 440.1A, which has that were constructed according to been successfully implemented for more DOE received multiple general previous, rather than current standards. than 10 years. Thus, most facilities will comments regarding the inclusion of Many of these commenters (Exs. 8, 15, be in compliance with the new document edition dates in this section. 29, 31, 35, 36, 37, 42, 46, 49) expressed standards and grandfathering is not Many commenters (Exs. 1, 3, 4, 12, 14, necessary. Therefore, DOE does not 15, 16, 20, 22, 28, 31, 36, 37, 39, 42, 48, concern that the rule does not include the ‘‘grandfathering’’ of existing anticipate a large number of requests for 49, 50, 51, 54, 55, 61) expressed concern variances, nor does DOE believe that that supplemental proposed section facilities (i.e., allowing facilities to meet only the code requirements in effect at compliance would result in excessive 851.201 included specific edition dates costs. for standards and codes. The the time the facility was built). The commenters believe that it is not Several commenters (Exs. 15, 16, 20, commenters note that many existing 28, 29, 33, 36, 37, 45, 48, 51) noted that facilities are unlikely to be in feasible to bring older facilities up to all the new codes and that attempting to do conflict exists between many of the compliance with these recent editions consensus standards and codes (e.g., (presumably because they were so would present insurmountable OSHA, NFPA, ASME, and ANSI codes) problems for most facilities. constructed to meet earlier standards). cited in the supplemental proposal and Commenters also believe that failure to Several commenters (Exs. 3, 4, 14, 16, the codes and standards incorporated allow grandfathering would result in 31, 36, 39, 50, 51) believed that into the contracts of many prime significant costs associated with including such dates would result in contractors and other DOE evaluation, modification, reporting excess exemptions and increased costs. requirements. Most of these commenters requirements, and the need for Some of these commenters (Exs. 14, 16, (Exs. 15, 16, 20, 28, 29, 33, 36, 37, 48, exemptions, as well as costs from fines 31, 36, 50, 51) recommended 51) suggested that all cited regulations or penalties associated with eliminating the specific edition dates of should be reviewed for unintended noncompliance. Some of these the consensus standards, while others implications. In the final rule, DOE has commenters requested grandfathering aligned the standards in final rule (Exs. 14, 16, 31, 36) offered an under the Code of Record concept, in alternative recommendation that DOE section 851.23(a) with those required which a contractor is not required to under DOE Order 440.1A. Thus, DOE indicate ‘‘latest revision’’ in lieu of the implement current editions of codes or specific year. Three commenters (Exs. does not anticipate conflict between the standards unless the facility undergoes standards in the final rule and those in 15, 31, 37) agreed, but suggested that substantial modifications. The DOE include a mechanism within the existing contracts and other DOE commenters suggested that DOE require directives. rule that updates these dates to ensure modification only in the presence of a consistency with the changing Several commenters (Exs. 6, 15, 28, significant hazard, in which case the 29, 36, 37, 38, 42, 45, 47, 49, 50, 57) knowledge and needs of the industries facility would be upgraded to the they address. Two other commenters recommended that DOE adopt OSHA requirements of the current edition of standards as the minimum set of (Exs. 28, 49) indicated that the edition the code or standard. Another requirements, and expressed the dates go beyond the statutory authority commenter (Ex. 14) also expressed opinion that the national consensus given to DOE by Congress. DOE has concern that no provision in the standards in the supplemental proposed carefully considered the forgoing proposed rule recognized DOE’s use of rule do not provide an appropriate basis comments about the potential effects of the risk-based ‘‘graded approach’’ to for enforcing worker safety and health incorporating specified editions of upgrading aging facilities and correcting requirements at DOE facilities. Two of consensus standards. Regulatory deficiencies under current industry these commenters (Exs. 15, 38) requirements must be specific and codes, regulations, and guidance. This suggested that DOE also adopt other include the editions of incorporated commenter believes that shifting to the elements of OSHA’s regulations, such as standards. Therefore, DOE cannot proposed compliance-based approach interpretations, penalty policies, and accept the suggestion of requiring will incur excessive costs at the expense appeals mechanism. As previously compliance with the ‘‘latest revision’’ of of the DOE program office due to the discussed, DOE has revised the list of standards that are incorporated by funds required to bring all facilities into standards in response to comments on reference. However, DOE has reviewed compliance at the same time, to pay the supplemental proposal. The the standards listed in section 851.23(a) civil penalties, or to process exemption standards mandated in final rule section to determine if they are appropriate. As requests. The commenter suggested that 851.23(a) are consistent with those a result of this review, DOE has a possible resolution could be to mandated under the existing DOE Order eliminated from the final rule many of grandfather known deficiencies with an 440.1A. These standards include OSHA the consensus standards that were listed approved plan for resolution. Another standards as well other consensus in the supplemental proposal. The commenter (Ex. 35) recommended that standards that have been evaluated by standards included in this final rule are DOE add a provision that allows the DOE health and safety community consistent with those mandated under contractors to use of national consensus and deemed necessary to address gaps DOE Order 440.1A. While contractors standards equivalent to those listed in in the OSHA standards and to provide must meet the standards listed in supplemental proposed section 851.201. adequate protection to the DOE cprice-sewell on PROD1PC66 with RULES2 section 851.23(a), they are free to It was the commenter’s opinion that workforce. DOE also intends to prepare comply with more recent editions of the including the provision would help enforcement guidance supplements standards as long as the provisions of contractors avoid having to use the (EGSs) that will provide enforcement the more recent standards are at least exemption relief described in Subpart D. guidance. DOE anticipates that these protective as the edition specified in the As mentioned previously, DOE has EGSs will be consistent with and to a final rule. In future rulemakings, DOE eliminated many of the consensus great extent based on the equivalent VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6897 OSHA guidance. Furthermore, under questioned how DOE would document feasibility. One commenter (Ex. 38) final rule section 851.6, DOE will which provisions specifically applied to asserted that this provision goes beyond continue to issue technical positions worker safety and which applied to OSHA requirements and creates an that will be based in large measure on property protection. DOE acknowledges unreasonable obligation for contractors the existing body of OSHA these concerns and notes that the intent to keep employee exposure levels below interpretations. of the rule is worker safety and health. both OSHA PELs and the ACGIH Several commenters were concerned Accordingly, DOE has removed the exposure limits (depending on which by the potential costs of compliance majority of the specific NFPA standards value is lower). Conversely, another with supplemental proposed section in the interest of reducing the contractor commenter (Ex. 54) recommended that, 851.23(a). These commenters (Exs. 14, and site compliance burdens. NFPA 70 to ensure greater worker protection, 16, 20, 27, 29, 31, 34, 36, 37, 38, 42, 48, and 70E remain in the final rule because DOE continue to require contractors to 49, 57, 58) surmised that they are important for protecting worker follow ACGIH TLVs where they are implementation of the proposed rule safety and health on DOE sites. DOE more protective than OSHA PELs. DOE would result in increased costs notes, however, several deleted NFPA agrees with the latter comment on associated with the increased amount of standards may be applicable to DOE inclusion of ACGIH TLVs. In final rule resources needed to comply with the facilities through DOE fire protection section 851.23(a)(9), DOE continues to large number of consensus standards. directives, such as DOE Order 420.1A or require the use of ACGIH TLVs Further, commenters believed that these by contract. exposure limits where they are lower costs would divert funds normally spent Several of these commenters (Exs. 2, and more protective than OSHA PELs. on safety, which would negatively 8, 16, 19, 29, 37, 45, 49) also objected As mentioned earlier in the discussion impact worker safety and health. Two to the American Society of Mechanical of this section, this approach is commenters (Exs. 15, 38) also argued Engineers (ASME), ANSI, American consistent with DOE Order 440.1A, that the costs would divert funds from Petroleum Institute (API), American which has been in place and research. One commenter (Ex. 11) felt Water Works Association (AWWA), and implemented by DOE contractors on that DOE should perform an economic Underwriters Laboratories (UL) codes DOE worksites for a decade. impact analysis for the rule. DOE again found in supplemental proposed section Two commenters were concerned notes that in the final rule many of the 851.201(c), Tables 2 through 5. about beryllium exposure levels. One consensus standards listed under the Commenter concerns related to these commenter (Ex. 49) recommended that supplemental proposal are eliminated codes included increased costs if the the ACGIH TLV for beryllium be and the remaining standards in final codes were retained, compliance issues, excluded from the rule on the basis that rule section 851.23(a) are those required legacy construction issues, lack of DOE has a separate rule 10 CFR 850 that by the existing DOE Order 440.1A. Most rationale for omission and inclusion of specifically addresses beryllium facilities should already be in the codes appearing in the tables (i.e., exposure limits. In contrast, another compliance with these standards and, the included codes were too commenter (Ex. 62) believed that DOE therefore, DOE does not anticipate prescriptive but with numerous gaps in should adopt the ACGIH TLV for increased costs. coverage), lack of applicability to DOE beryllium in the rule; the more DOE received a number of comments sites, potential increase in exemption protective limit currently under on specific standards (or blocks of requests, conflict with cited OSHA consideration by ACGIH would be standards from the same standard- regulations in the supplemental applicable under this rule upon setting organization). Many commenters proposal, level of specificity not ACGIH’s approval. In 851.23(a)(1) of the (Exs. 1, 2, 3, 4, 5, 7, 8, 16, 19, 20, 24, appropriate to a rule of this type, the final rule, DOE requires contractors to 22, 29, 31, 33, 37, 39, 45, 47, 49, 54, 55, fact that specified code editions can comply with 10 CFR 850, ‘‘Chronic 58, 59, 61) raised concerns about the become quickly outdated, and problems Beryllium Disease Prevention Program’’ NFPA codes found in supplemental associated with revision of edition dates (Part 850 CBDPP). In addition, Part 850 proposed section 851.201(b), Table 1. through rulemaking procedures. Many CBDPP has been revised to state that it The commenters recommended that of these commenters (Exs. 8, 16, 19, 45) supplements, and is deemed an integral these codes be eliminated or clarified suggested that DOE eliminate the part of, the worker safety and health based on various compliance concerns, specific codes and editions. Finding program under Part 851. Section including applicability to facilities, several of these concerns to be valid, 851.23(a)(9) adopts the ACGIH TLVs, increased costs, and excessive variance DOE has modified final rule section however, DOE notes that the rule adopts requests. One commenter (Ex. 61) 851.23(a) by eliminating Tables 2 a specific version of the ACGIH observed that while the supplemental through 5 and associated codes (i.e., standards. Incorporation of any future proposed rule preamble and purpose ASME, API, AWWA, UL, and ANSI changes to those standards into 10 CFR indicated that the purpose of the rule pressure-related codes). 851 could only be accomplished was worker safety and health, many of DOE also received numerous through appropriate rulemaking the National Fire Protection Association comments related to the standard on procedures. (NFPA) requirements referenced in TLVs. Many commenters (Exs. 12, 16, DOE received a few requests for supplemental proposed rule section 28, 31, 36, 37, 38, 42, 45, 47, 49, 51, 54, additional specific standards to be 851.201 from DOE Order 420.1A are 56) expressed concern over included in the rule. One commenter directed at limiting property damage, supplemental proposed section (Ex. 49) recommended that DOE not improving worker safety. The 851.201(e), which required compliance specifically list parts of the referenced commenter inquired if it was the intent with the ACGIH standard for TLVs. ANSI standards that are considered of the rule to address property Several of these commenters (Exs. 16, exposure limits and technical cprice-sewell on PROD1PC66 with RULES2 protection in addition to worker safety 28, 31, 36, 37, 42, 45, 51, 56) expressed requirements and, thus, applicable or whether enforcement of the NFPA the opinion that these values are under the rule. DOE agrees that standards would be limited to those inappropriate and recommended that specificity is helpful and has included issues and provisions that specifically they be eliminated from the rule or 851.23(a)(10), (11), and (12) in the final affect worker safety. Furthermore, if the adopted only partially, since they do not rule; these list the three specific ANSI latter was the case, the commenter take into account economic or technical standards adopted under the rule. VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 6898 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations Three other commenters (Exs. 11, 54, requirements that they deem necessary recordkeeping and reporting 55) recommended that DOE include the to protect their workers. requirements. This section consolidates 10 CFR 1904, ‘‘Recording and Reporting provisions that were included in Section 851.24—Functional Areas Occupational Injuries and Illnesses,’’ sections 851.4(f) and 851.7 of the standard and require participation in Section 851.24 requires that supplemental proposed rule. After the OSHA illness and injury survey in contractors have a structured approach considering public comment, DOE has 29 CFR 1904.41. DOE agrees with this to their worker safety and health revised the recordkeeping and reporting comment and in final rule section program, which includes provisions for requirements. 851.23(a)(2), DOE includes and requires functional areas. Specifically, 851.24(a) Section 851.26(a) requires a contractor compliance with the following requires that contractors, at a minimum, to maintain complete and accurate provisions of 29 CFR 1904: 1904.4 include provisions in the functional records of all hazard inventory through 1904.11, 1904.29 through areas of construction safety, fire information, hazard assessments, 1904.33, 1904.44, and 1904.46, protection, firearm safety, explosives exposure measurements, and exposure ‘‘Recording and Reporting Occupational safety, pressure safety, electrical safety, controls. Injuries and Illnesses.’’ industrial hygiene, occupational Section 851.26(a)(1) requires One commenter (Ex. 5) suggested that medicine, biological safety, and motor contractors to ensure that the work- DOE include relevant emergency vehicle safety. Section 851.24(b) related injuries and illnesses of their response standards. This commenter establishes that contractors are subject workers and subcontractor workers are noted that Emergency Response to all applicable standards and recorded and reported accurately in a Planning Guidelines (ERPGs) and provisions in Appendix A, ‘‘Worker manner consistent with DOE Manual Temporary Emergency Exposure Limits Safety and Health Functional Areas.’’ 231.1–1A, ‘‘Environment, Safety and (TEELs) standards, which apply to Comments regarding each of the Health Reporting Manual.’’ This manual emergencies and are not covered by functional areas are addressed in the was established under DOE Order other standards, are not referenced in discussion of Appendix A in this 231.1A, the primary directive on Supplementary Information. environment, safety and health the rule. DOE notes that the specific reporting, including occupational issue of including emergency response Section 851.25—Training and injuries and illnesses. The manual standards is beyond the scope of this Information requires contractors to record, maintain rulemaking. Section 851.25 describes the records on, and report occupational Several commenters (Exs. 25, 27, 28, contractor requirements for a worker fatalities, injuries, and illnesses among 31, 39, 42, 48) expressed concern that safety and health training and their employees (and subcontractors) supplemental proposed section information program. Section 851.25(a) arising out of work primarily performed 851.200(b), which gave DOE the establishes the contractor’s obligation to at facilities owned or leased by DOE. authority to impose additional provide training, while section Section 851.26(a)(2) requires requirements on a contractor, would 851.25(b) describes when, and at what contractors to comply with the leave contractor liability open-ended frequency, the training must be applicable to occupational injury and and would exacerbate costs. These provided. Specifically, a contractor illness recordkeeping safety and health commenters believed that the additional must provide (1) training and standards in section 851.23 of this part requirements that DOE can impose on a information for new workers, before or at their site, unless otherwise directed contractor should be limited in response at the time of initial assignment to a job in DOE Manual 231.1–1A. to these comments. DOE has eliminated involving exposure to a hazard; (2) Section 851.26(b) establishes this authority and modified the periodic training as often as necessary to contractors’ duty to report and language in final rule section 851.23(b) ensure that workers are adequately investigate accidents, injuries, and to read, ‘‘Nothing in this part must be informed and trained, and (3) additional illnesses. Under this section contractors construed as relieving a contractor from training when safety and health are also required to analyze related data complying with any additional specific information or a change in workplace for trends and lessons learned, in safety and health requirements that the conditions indicates that a new or accordance with DOE Order 225.1A, contractor determines to be necessary to increased hazard exists. Section ‘‘Accident Investigations.’’ protect the safety and health of 851.25(c) requires contractors to provide Section 851.26(c) requires that workers.’’ training and information to workers contractors not conceal or destroy any Another commenter (Ex. 15) felt that with worker safety and health program information concerning non-compliance the intention of the introduction to the responsibilities that is necessary for or potential non-compliance with the supplemental proposal, which indicates them to effectively carry out those requirement of this part. that this proposal is intended to ‘‘codify duties. DOE received numerous comments on a minimum set of safety and health One commenter (Ex. 30) reporting requirements in supplemental requirements with which contractors recommended that proposed section proposed section 851.4(f). That must comply,’’ is not carried over into 851.100(b)(7) be eliminated stating that supplemental proposed section would the language of Subpart C, and it would result in excess paperwork have required contractors to report and recommended that supplemental since contractors already have safety investigate each occurrence (including proposed section 851.200(a) be modified programs and are required to provide a ‘‘near miss’’ incidents) that causes a to include ‘‘A contractor responsible for workplace free of hazards. DOE significant likelihood of death or serious a covered workplace must, at a disagrees, believing that training is a bodily harm. The majority of minimum comply with the worker basic component of successful worker commenters (Exs. 5, 15, 25, 28, 30, 31, cprice-sewell on PROD1PC66 with RULES2 safety and health requirements * * *’’ protection efforts. 35, 38, 39, 42, 45, 47, 51, 57) requested DOE agrees with this concern but feels definitions for the terms used in the that it is addressed in 851.23(b) of the Section 851.26—Recordkeeping and context of supplemental proposed final rule, which states that a contractor Reporting section 851.4(f) (e.g., ‘‘near miss’’ and is not relieved from complying with (a) Recordkeeping. Section 851.26 in ‘‘significant likelihood’’). Some additional worker safety and health the final rule addresses contractor commenters (Exs. 16, 36, 42) favored VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6899 deletion of the provision, since the supplemental proposal exemption corresponding increase in compliance terms were too subjective and lacked a process went beyond the flexibility costs, since contractors would often be clear definition. In response to these provisions of the NDAA and could unable to meet the specific editions of concerns, DOE has removed this allow contractors to inappropriately standards incorporated by reference. provision from the final rule. Final rule circumvent many of the requirements of One commenter (Ex. 5) stated that section 851.26(a)(2) clarifies that the rule. Several of these commenters exemptions take an incredible amount contractors must report and record (Exs. 16, 58, 62) felt that the flexibility of time to prepare and get through the workplace injuries and illnesses in concerns related to closure facilities DOE system for review and approval. As accordance with DOE Manual 231.1–1A. raised in the NDAA would be more previously discussed, DOE has pared The commenters (Exs. 5, 15, 25, 28, appropriately handled through the back the standards mandated in the 30, 31, 35, 38, 39, 42, 45, 47, 51, 57) also worker safety and health program, final rule to be consistent with those sought clarification on reporting hazard abatement, and enforcement required by existing DOE Order 440.1A. thresholds for occurrences in provisions of the rule. DOE believes that DOE contractors are supplemental proposed section 851.4(f). To address these concerns, several intimately familiar and largely in Two commenters (Exs. 13, 39) commenters (Exs. 11, 21, 44, 49, 60, 62) compliance with the requirements of specifically inquired where and to suggested that DOE should replace the these standards. As a result, DOE does whom the report should be submitted. proposed exemption process with a not anticipate a large number of requests One commenter (Ex. 60) asserted that variance process modeled after OSHA’s for variances. As mentioned in the occurrence reporting should be variance process established in 29 CFR section-by-section discussion for the fire mandatory and failure to report should part 1905. These commenters argued protection provisions of Appendix A be subject to enforcement. Concerned that the variance process outlined in 29 section 2 of the final rule, DOE believes that this section contravened CFR part 1905 was developed that the ‘‘equivalency’’ process Noncompliance Tracking System specifically to address OSHA worker established in many of the NFPA reporting requirements in PAAA-related safety and health standards and, thus, standards required under final rule programs, other commenters (Exs. 36, was more applicable to the requirements section 851.23 will further reduce the 38, 39, 42, 49, 57) pointed out that established in the worker safety and need for variances under the rule. supplemental proposed section 851.4(f) health program. DOE also intends to apply OSHA’s was not consistent with supplemental A few commenters (Exs. 28, 45, 51) policies regarding de minimis violations proposed Appendix A(IX)(b)(5). Several supported the exemption process in the in determining the need for a variance commenters (Exs. 15, 16, 20, 27, 31, 42, supplemental proposal but expressed and believes that this policy will further 49) recommended that the reporting concern that the exemption reduce the volume of variance requests. process be aligned with existing DOE implementation process would become Specifically, OSHA practice holds that reporting systems like the Occurrence unwieldy if additional exemption variances are not needed for conditions Reporting and Processing System or criteria were added. These commenters that meet the criteria for de minimis DOE Order 231.1A. As is noted earlier believed that this could be detrimental violations. These criteria, as described in this discussion, DOE agrees with to legitimate exemption requests (e.g., in the OSHA Field Inspection Reference these comments and has replaced facility closure or demolition), and Manual CPL 2.103, Section 7—Chapter supplemental proposed section 851.4(f) suggested that an initial screening III, Sub-section C(2)(g) include with final rule section 851.26, which process be established to determine conditions where: (1) Violations of the references DOE Manual 231.1–1A. whether an exemption request satisfies relevant standard has no direct or criteria for evaluation. One commenter immediate relationship to safety or E. Subpart D—Variances (Ex. 28) suggested that the 10 exemption health; (2) An employer complies with The supplemental proposal contained circumstances be grouped into 4 the clear intent of the standard but an exemption process based on the categories for screening. deviates from its particular exemption process established in 10 DOE has considered each of these requirements in a manner that has no CFR part 820 for exemptions from comments and concluded that a direct or immediate relationship to nuclear safety requirements. DOE variance process modeled after the employee safety or health; (3) An selected the exemption process outlined OSHA variance process is more employer complies with a proposed in 10 CFR part 820 for use in the appropriate to address worker safety standard or amendment or a consensus supplemental proposal because it is and health issues. As a result, DOE has standard rather than with the standard specific to DOE activities. DOE believed adopted a variance process based on the in effect at the time of the inspection that because DOE contractors had variance process of 29 CFR part 1905. and the employer’s action clearly already implemented this process, the DOE notes that, because section 851.23 provides equal or greater employee process would be easily understood and requires compliance with OSHA protection or the employer complies costs would be reduced. Many standards, the use of the OSHA variance with a written interpretation issued by commenters (Exs. 10, 11, 15, 16, 20, 21, process as the framework of the DOE the OSHA Regional or National Office; 29, 31, 33, 36, 37, 38, 39, 40, 42, 46, 49, variance process will allow DOE to or (4) An employer’s workplace is at the 54, 60), however, disagreed with this benefit from OSHA’s implementation of ‘‘state of the art’’ which is technically selection, most stating that this process the process over the past 3 decades. beyond the requirements of the would actually be too costly to DOE expects that variance requests to applicable standard and provides implement. Other commenters (Exs. 10, OSHA and OSHA responses will be equivalent or more effective employee 16, 23, 30, 39, 40, 44, 60, 62) argued that relevant to variance requests that the safety or health protection. the exemption process in the Department will receive under Part 851. General examples illustrating cprice-sewell on PROD1PC66 with RULES2 supplemental proposal was not Many commenters (Exs. 8, 15, 16, 20, potential de minimis conditions that consistent with the requirement for 29, 31, 35, 36, 37, 38, 39, 42, 46, 49) may not require issuance of variances flexibility specified by Congress in argued that the extensive list of based on the OSHA criteria described section 3173 of the NDAA. Specifically, standards in supplemental proposed above may involve deviations of these commenters felt that the 10 section 851.201 would result in distance specifications, construction exemption criteria included in the excessive exemption requests and a material requirements, use of incorrect VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 6900 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations color, minor variations from record- Another commenter (Ex. 11) stated stated that this requirement would keeping, testing, or inspection that non-NNSA and NNSA contractors result in a significant increase in regulations. For example, in considering should not have separate systems for the exemption requests, and this, in turn, a variance request for 29 CFR exemption process, and that one process would result in increased cost including 1910.27(b)(1)(ii) which allows 12 inches would be appropriate for the the need for additional resources to as the maximum distance between consideration of all variances. DOE manage the risk pending reapproval. A ladder rungs, OSHA determined that a agrees that a single Department-wide few commenters suggested that the rule situation involving rungs that were 13 process is appropriate and has designed be reworded to incorporate previous inches apart could be considered de the variance process so that the exemptions and equivalencies (Ex. 16, minimis. In another example involving Assistant Secretary for Environment, 31, 37, 49). DOE notes the commenters’ 29 CFR 1910.28(a)(3) which requires Safety and Health considers all concerns and has revised the final rule. guarding on all open sides of scaffolds, variances requests and makes a Section 851.31(a) requires contractors OSHA determined that a situation recommendation as to whether they desiring a variance from a safety and where employees were tied off with should be granted or denied. The health standard established in final rule safety belts in lieu of guarding, met the decision to grant a variance is made by 851.23 to submit a written application intent of the standard and thus, was a the Under Secretary with line to the appropriate CSO. Section de minimis condition and a variance management responsibility for the 851.31(a)(1) and (2) established that the was not needed. In a third example, contractor requesting the variance. The CSO may forward the application to the OSHA determined that a deviation from Under Secretary must consider the Assistant Secretary for Environment, 29 CFR 1910.217(e)(1)(ii) which, recommendation of Assistant Secretary Safety and Health. If the CSO does not requires that mechanical power presses in deciding whether to grant the forward the application to the Assistant be inspected and tested at least weekly, variance. Secretary, the CSO must return the was de minimis in a situation where the One commenter (Ex. 29) argued that application to the contractor with a machinery was seldom used, and was the exemption process would function written statement explaining why the inspected and tested prior to each use. more efficiently if variance requests for application was not forwarded. The following sections provide a standards addressing less significant Final rule section 851.31(a)(3) detailed discussion of the variance hazards could be approved at the requires upon receipt of the variance process outlined in the final rule. regional or site level, so as not to application from the CSO, the Assistant Because this process differs significantly overburden the CSO with multiple Secretary for Environment, Safety and from the exemption process outlined in variance requests. DOE believes, Health to review the application for a the supplemental proposal, the sections however, that concerns regarding variance, and make a written below do not correspond directly with excessive variance requests are no recommendation to either approve the the sections of the original proposal. longer relevant since, for the reasons application, or approve the application noted above, DOE does not anticipate a with conditions, or deny the Section 851.30—Consideration of application. In this process, the large number of requests for variances. Variances A final commenter (Ex. 47) on this Assistant Secretary for Environment, Section 851.30 establishes the section believed that the provision that Safety and Health ensures uniformity in authorities that will consider requests the CSO cannot delegate exemption grant variances and provides the for variances from specific provisions of authority contradicts the requirements consistency needed the variance the rule. Specifically, section 851.30(a) of supplemental proposed section process. establishes that the Under Secretary has 851.203(a)(9). This referenced section One commenter (Ex. 49) expressed the authority to grant variances. Under addressed a fire protection self- concern that the proposed rule is this provision, this authority may not be assessment program; however, DOE unclear as to whether the CSO can grant delegated. A few commenters (Ex. 30, believes this was an erroneous reference an exemption if the Assistant Secretary 44, 60, 62) believe that the Secretary of and that the commenter intended to for Environment, Safety Health does Energy, not the Officer with reference supplemental proposed disagrees or fails to respond during the responsibility for a contractor’s activity, section 851.203(a)(12), which addressed 30-day review period. This commenter should issue the decision for a variance the approval of fire protection suggested that the rule include language or an exemption. The commenters equivalencies at the site manager level. that states that the CSO may grant an believe that instead of allowing the Although this specific provision has exemption if the Assistant Secretary NNSA to recommend exemptions and been removed from the final rule, the fails to respond, or even if the Assistant issue final decisions, the Energy equivalency process is separate from the Secretary disagrees, during the 30-day Secretary should render decisions on all variance process outlined in subpart D review period. DOE has revised the final exemptions, after receiving a of the final rule, so no conflict exists rule to elevate approval authority to the recommendation from the EH–1. DOE within the rule. appropriate Under Secretary, which disagrees, but believes that the Section 851.30(b) establishes that a requires the appropriate Under appropriate approval level for granting a variance application must contain the Secretary to ‘‘consider’’ the Assistant variance rests with the Under Secretary requirements specified in final rule Secretary’s ‘‘recommendations.’’ DOE for Energy and Environment, or the section 851.31. has revised the final rule to elevate Under Secretary for Science, or the approval authority to the appropriate Under Secretary for Nuclear Security/ Section 851.31—Variance Process Under Secretary, which requires the Administrator for National Nuclear Section 851.31 of the final rule appropriate Under Secretary to consider Security Administration, and need not describes the variance process the Assistant Secretary’s cprice-sewell on PROD1PC66 with RULES2 be elevated to the Secretarial level. The requirements. Several commenters (Exs. recommendations. Under Secretary, in granting the 15, 16, 29, 31, 37, 42, 46, 49) expressed Two commenters (Exs. 30, 60) variance must consider the concern over the proposed requirement expressed concern that the recommendation of the Assistant to resubmit existing exemptions, supplemental proposal might be Secretary for Environment, Safety and especially those exemptions involving interpreted as allowing exemptions to Health. fire safety (Exs. 31, 37, 42). Commenters go into effect within 30 days if EH–1 VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6901 fails to act on an exemption review. The exemption of an entire facility from one applications include any requests for a commenters believed that this maybe an or more requirements, via a single conference, which as clarified in final unrealistic deadline if there is a backlog exemption request. This commenter felt rule section 851.34 allow contractors of exemption requests, and could result that such a broad exemptions might be and workers to present facts on how in unwarranted exemption approvals. appropriate for a facility that is they would be affected by the variance. DOE notes, the variance process in the scheduled for closure or transfer of title. In addition, sections 851.31(c)(5) and (6) final rule does not establish a time limit DOE disagrees with this commenter. require that the application include a for EH–1’s review of contractor variance The variance process is intended to statement that the contractor has requests. provide relief from a specific informed the affected workers of the Another question raised by a requirement due to specific application through appropriate commenter (Ex. 49) was whether circumstances present in a specific work methods, as well as a description of how exemptions of rule requirements could site. The provisions are not intended to workers were informed of the be incorporated in the contractor worker provide wholesale exemptions from application and of their right to petition safety and health plan and be approved standards at entire facilities. DOE notes the Assistant Secretary of Environment, through CSO approval of this plan. The that the standards mandated in final Safety and Health for a conference. approval authority for a variance is rule section 851.23 are consistent with Section 851.31(c)(5) further clarifies that higher than that for a written program. the standards required by DOE Order appropriate methods for notifying Variances may not be approved by 440.1A. The majority of these standards workers of the application include incorporating a variance request in the have been applicable to DOE worksites giving a copy of the application to the worker safety and health program, through DOE Order 440.1A and a workers’ authorized representative, which is reviewed and approved by the variety of predecessor orders and posting a statement at the place(s) where Head of DOE Field Element. contract clauses for decades. In notices to workers are normally posted, A few commenters (Exs. 28, 37, 45, addition, DOE believes that sufficient giving a summary of the application and 51) concerned about a potentially flexibility for closure facilities is specifying where a copy may be lengthy variance approval process, provided through final rule section examined, and other appropriate means. requested that a specific time period 851.21(b), which allows contractors to One commenter (Ex. 62) believes that (e.g., 45 days) be set for DOE to act on submit to the Head of DOE Field the rule should clarify the required an exemption request. Some of these Element a list of closure facility hazards content for an exemption, and that the commenters were concerned that the that cannot be fully abated and/or required content should be based on variance approval process could delay controlled within 90 days of being OSHA’s required content for variances. approval of a contractor’s worker safety identified. This commenter, as well as two others and health program, resulting in a Section 851.31(b) establishes (Exs. 44, 60), also suggested that the temporary facility shutdown. As noted procedures for processing defective proposed rule be revised to incorporate in the discussion of subpart B of the variance applications. The Assistant OSHA’s approach which, according to final rule, DOE does not intend for Secretary for Environment, Safety and the commenters, requires a clear approval of the contractor’s safety and Health can return an application with a demonstration that worker safety will health program to be contingent upon or written explanation if it does not not be negatively affected by the related to approval of outstanding contain the information required to variance and establishes the procedures variance request. To clarify this intent, make a determination. needed to provide a fair and transparent DOE has removed a provision from Section 851.31(c) establishes the exemptions process. These commenters subpart B of the final rule that required required content for a variance argued that OSHA’s approach permits contractors to identify, in their application. Like the corresponding employers to apply for variances, but programs, situations for which sections of the previous supplemental requires notice to affected employees exemptions were needed. As a result, proposed, final rule sections and the public and gives them the action on variance requests alone will 851.31(b)(1) through (3) specify that a opportunity to participate in a hearing. not delay approval of a contractor’s variance application must contain the These commenters believed that a worker safety and health program. name and address of the contractor, the review process that provides the public, A few commenters (Exs. 28, 45, 51) address of the DOE site(s) involved, and affected workers and their argued that exemption relief should not a specification of the standard from representatives, with ample notice and be limited to Subpart C but should be which the contractor seeks a variance. the opportunity to have their views available for relief form provisions in all Several commenters (Exs. 10, 30, 40, considered would help ensure subparts of the rule. DOE disagrees with 54, 55, 60, 62) expressed concern at the transparency, accountability, and the commenter, however, because the lack of worker notification and integrity in the DOE rule. One of these standards listed in section 851.23 of the involvement in the proposed exemption commenters (Ex. 62) further requested a final rule are generally more process and requested that when a 30-day review period for workers and prescriptive in nature than the other contractor applies for an exemption, the believed that decisions regarding an programmatic requirements in the rule. exemption request (and any replies to exemption should be published in the For instance, there may be many ways that request) be posted in a designated Federal Register within 10 days of for a contractor to meet the intent of a area in the workplace at the time of the issuance. programmatic requirement (such as request. These commenters noted that DOE agrees in part with these requests management responsibilities). For this worker input should be required and and, as discussed above, has included reason, final rule section 851.31(a) solicited, and requested that workers provisions for worker notification and specifies that the variance process in the and their representatives be fully able to involvement in the variance process in cprice-sewell on PROD1PC66 with RULES2 final rule applies only to the safety and participate in any discussions and final rule sections 851.31(c)(4) through health standards prescribed in final rule appeal any decision. After reviewing (6). DOE does not agree, however, that section 851.23. these comments, DOE has added several parties not impacted by the variance Another commenter (Ex. 13) provisions to the final rule to address request be notified of the application. suggested that the DOE expand the these concerns. For instance, section The final rule, however, does not exemption process to provide for an 851.31(c)(4) requires that the preclude workers from sharing concerns VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 6902 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations with any party regarding workplace defense. The contractor must submit a conditions proposed for inclusion as safety and health matters at their own statement showing how the conditions, part of the approval. discretion. practices, means, methods, operations, Section 851.32(a)(2) requires that if Section 851.31(d) describes the types or processes used would give workers a the Under Secretary approves the of variances for which a contractor may safe and healthful place of employment variance to notify the Assistant apply. These are: Temporary variances, in a manner that is, to the extent Secretary for Environment, Safety and permanent variances, and national practicable taking into account the Health who must notify the Office of defense variances. Section 851.31(d)(1) national defense mission, consistent Price-Anderson Enforcement and the defines the purpose of a temporary with the standard form which the appropriate CSO. The CSO is required variance. A temporary variance allows variance is requested. A national to notify the contractor. Final rule contractors a short-term exemption from defense variance will only be granted section 851.32(a)(3) requires the a workplace safety and health standard for a maximum of six months unless a Assistant Secretary include in the when they cannot comply with the showing is made that additional time is notification a reference to the safety and requirements by the prescribed date essential to the national defense health standard or portion thereof, that because the necessary construction or mission. is the subject of the application, a alteration of the facility cannot be One commenter (Ex. 11) believed that detailed description of the variance, the completed in time or because technical the national defense exemption basis for the approval and any terms and personnel, materials, or equipment are provisions included in the conditions of the approval. temporarily unavailable. To be eligible supplemental proposal would create a Section 851.32(a)(4) and (5) for a temporary variance, a contractor potential ‘‘loop hole’’ by allowing establishes that if the Under Secretary must implement an effective practices that would result in worker denies a variance, the Under Secretary compliance program as quickly as must notify the Assistant Secretary for injuries and illnesses in the name of possible. In the meantime, the Environment, Safety and Health and the achieving national defense ‘‘in an contractor must demonstrate to the CSO who must notify the contractor. efficient and timely manner.’’ DOE appropriate Under Secretary and the The notification must include the notes that the NDAA mandates Assistant Secretary for Environment, grounds for the denial. flexibility for national defense activities. Section 851.32(b) establishes the Safety and Health, that all available DOE believes the language in the final steps are being taken to safeguard approval criteria for a variance rule provides such flexibility without application. The Assistant Secretary for workers. DOE does not consider the creating the potential for disregarding inability to afford compliance costs to Environment, Safety and Health may the standards set forth in subpart C. recommend to the Under Secretary be a valid reason for requesting a temporary variance. Another commenter (Ex. 62) granting a variance only if the variance: Section 851.31(d)(2) of the final rule acknowledged that national security (1) Is not inconsistent with section 3173 establishes the requirements for a exemptions are warranted, but noted of the NDAA; (2) Would not present an permanent variance. A permanent that such exemptions should be rare. undue risk to worker safety and health; variance grants an exemption from a This commenter believed that national (3) Is warranted under the workplace safety and health standard to security concerns could be addressed circumstances; (4) Satisfies the contractors who could prove that their directly in the rulemaking, as with requirements of § 851.31 of this part for methods, conditions, practices, DOE’s exemption from OSHA standards the type of variances requested. operations, or processes provide on explosives, through careful writing of A few commenters (Exs. 28, 45, 51) workplaces that are as safe and healthful the rule. While agreeing that national believed that the wording in the as those that follow the prescribed defense variances should be rare, DOE exemption criteria in supplemental standard. To decide whether to does not agree that the need for proposed rule section 851.301(a)(1) recommend granting a permanent variances can be removed by more should be changed from ‘‘Be consistent variance to the appropriate Under specific rule drafting. DOE notes that with law’’ to ‘‘Be consistent with Secretary, The Assistant Secretary for the provision exempting DOE from applicable law.’’ Another commenter Environment, Safety and Health reviews OSHA standards regarding explosives (Ex. 29) requested that the proposed the contractor’s application and, if was included because existing DOE language in the supplemental notice of appropriate, visits the workplace to explosive safety requirements are more proposed rulemaking section confirm the facts provided in the directly relevant to DOE operations and 851.301(a)(1) be changed to ‘‘Be application. If the request has merit, the thus are more protective of the DOE consistent with the intent of the law,’’ Assistant Secretary could recommend workforce. noting that if a contractor could achieve granting a permanent variance as Section 851.32—Action on Variance full compliance with the law, an described in final rule section 851.32. Requests exemption would not be needed. This Final permanent variance orders will basic criterion is clarified in final rule detail the contractor’s specific Section 851.32 of the final rule section 851.32(c)(1), which states that responsibilities and requirements and establishes procedures for an approval DOE may grant a variance only if the explain exactly how the contractor’s recommendation of a variance variance ‘‘is consistent with section method varies from the regulation’s application. Specifically, section final 3173 of the NDAA not prohibited by requirement. rule 851.32(a)(1) establishes if the law.’’ Section 851.31(d)(3) of the final rule Assistant Secretary for Environment, Another commenter (Ex. 44) establishes the criteria for granting a Safety and Health recommends approval requested that the proposed rule be variance from a workplace safety and of a variance application, the Assistant revised to explicitly state that there may cprice-sewell on PROD1PC66 with RULES2 health requirement for reasons of Secretary is required to forward the not be a reduction in worker safety national defense. The Department will application and the approval through the granting of an exemption, use national defense variances to grant recommendation to the Under Secretary. and that the rule should require a reasonable exemptions from workplace The recommendation must include a preponderance of evidence that worker safety and health standard requirements discussion of the basis for the safety will not be compromised. The to avoid serious impairment of national recommendation and any terms and commenter also requested that the rule VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6903 allow adequate determination to be meet the requirement for a variance set DOE received support for the made regarding the effectiveness of forth in the approval criteria. elements of the enforcement program alternative protective measures and that from several commenters, who generally Section 851.33—Terms and Conditions DOE establish expiration dates for view DOE’s approach as reasonable and approved exemptions, rather than giving Section 851.33 establishes the sound. One commenter (Ex. 51) strongly the contractors almost complete leeway required terms and conditions of an agreed with the enforcement process of to establish their own exemptions. DOE approved variance. The section the supplemental proposal and expected agrees with this commenter and in final establishes that a variance may contain, that the self-auditing process would rule section 851.32(c)(2) requires a but is not limited to, provisions that create positive incentives for contractors determination that the variance would limit its duration, require alternative to self-identify and correct hazards. not present an undue risk to worker action, require partial compliance, or Additionally, this commenter found the safety and health prior to the Under establish a schedule for full or partial enforcement process’s purpose and Secretary granting the variance. compliance. No comments were procedures to be clearly defined, as One commenter (Ex. 39) requested submitted on the corresponding were the classifications and categories that the rule make clear that hazards provisions of the supplemental notice of of violation severity levels. that are inherent to the work being proposed rulemaking during the public Other commenters requested performed are excluded from the comment period. clarification of various points of the provision that states that an exemption rule. For instance, one commenter (Ex. Section 851.34—Requests for 5) asked DOE to clarify whether only must be free of recognized hazards. DOE Conferences has removed the language stating that deviations from the rule could result in the exemption must be free of Section 851.34 allows for a worker to financial penalties. The commenter recognized from the variance criteria request a conference. Any affected suggested that ‘‘it would be better to use established in the final rule. DOE notes, contractor or worker may file a request the preliminary hazard analysis (PHA) however, that contractors are required for a conference on the application with process such that fines and penalties by section 851.32(c) to demonstrate that the Assistant Secretary for Environment, could be imposed if sites violated alternate controls will provide a Safety and Health. A request must technical safety requirements.’’ DOE workplace that is as safe and healthful include a statement showing how the presumes that this commenter is as that required by the standard and also contractor or worker would be affected distinguishing between deviations from requires a determination that the by the variance applied for, the the letter of the rule and deviations from variance will not present an undue risk specification in the application that is their approved written program. In fact, to worker safety and health. These denied and a summary of evidence in DOE intends for both the approved support of each denial, and any views worker safety and health program and sections clarify the Department’s intent or arguments on any issue of facts or the applicable requirements of Subpart that variances not diminish protection law presented. C to be enforceable. DOE recognizes that provided to the DOE workforce. violations of standard requirements may Section 851.31(c) establishes As discussed in section 851.31(b), be the result of worker safety and health procedures for the Assistant Secretary several commenters (Ex. 10, 30, 54, 55) program failures. In these instances for Environment, Safety and Health to believed that worker input should be worker safety and health program recommend denial of an application. If required and solicited, and requested failures may be cited. denial is recommended, the Assistant that workers and their representatives Another commenter (Ex. 6) suggested Secretary is required to give prompt be fully able to participate in any that safety and health-related notice to the CSO, who must either discussions and appeal any decision. enforcement should be performed by notify the contractor that the application DOE agrees with this request and OSHA rather than DOE. In its view, is denied or, if the CSO disagrees with incorporated worker notification DOE does not have the capabilities (e.g., the recommendation, forward the requirements and worker rights to certified occupational safety and health application, the recommendation, the petition for a conference into the final inspectors) to enforce the rule. DOE statement of the grounds for denial, and rule. agrees that a qualified staff is an a written statement explaining the basis Section 851.34(c) of the final rule, important component of an effective for disagreement with the Assistant allows the Assistant Secretary for enforcement program and notes that Secretary’s decision to the appropriate Environment, Safety and Health, or its DOE, through authority granted under Under Secretary who will review the designee, to determine whether to meet the AEA of 1954, has enforced package and make a decision. All denial with an affected contractor or worker. occupational safety and health notices must include, or be requirements through contracts on DOE accompanied by, a brief statement of the F. Subpart E—Enforcement Process sites since its inception. Section 3173 of grounds for the denial, as required by Subpart E of this rule describes how the NDAA mandates DOE to promulgate section 851.31(c)(4) of the final rule. A DOE will enforce the rule’s worker this rule to provide a regulatory denial of an application pursuant to this safety and health program requirements. enforcement and civil penalty paragraph shall be without prejudice to Specifically, the subpart outlines the mechanism. The Office of Price- submitting of another application. rights and responsibilities of DOE and Anderson Enforcement is staffed with Section 851.32(d) establishes the contractors during inspections, trained, qualified professionals capable grounds for denial of a variance investigations, and resulting of performing enforcement inspections application. A variance application can enforcement actions. The enforcement and investigations. be denied: (1) When enforcement of the options available to DOE are designed to Several of the comments (Exs. 12, 13, cprice-sewell on PROD1PC66 with RULES2 violation would be handled as a de provide a flexible framework that 37) sought clarification of certain minimis violation; (2) when a variance encourages settlement of enforcement aspects of the enforcement process. For is not necessary, for example, when an proceedings while prescribing clear, instance, one commenter (Ex. 13) found interpretative ruling is granted on a timely communication between DOE some of the terminology (e.g., specific standard or portion thereof; (3) and contractors throughout all phases of ‘‘deception,’’ ‘‘willfulness,’’ ‘‘gross when there is a situation that does not enforcement activities. negligence’’) too subjective for use in VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 6904 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations determining the severity of violations. reporting of noncompliances into NTS. protocols to the unique DOE The commenter suggested that further The Office of Price-Anderson enforcement regime. guidance is needed to clearly define the Enforcement expects to periodically DOE received several comments that DOE’s intended enforcement of the rule. adjust the thresholds as additional questioned whether DOE can effectively Clear definitions were also requested by experience is gained under the final regulate contractors to the extent a commenter (Ex. 37) who suggested rule. Also, this office will incorporate indicated by this part. For example, a that DOE adopt provisions from OSHA’s lessons learned from the reporting of commenter (Ex. 6) questioned whether enforcement processes on severity of nuclear violations into NTS. DOE would enforce this regulation for findings, threshold criteria for appeals, its Headquarters (HQ), regional, or site Several commenters (Exs. 31, 37, 42, offices, and suggested that HQ will need and an independent and equitable 57, 58) expressed concern that the to set up an independent oversight appeals process. Another commenter proposed rule would not provide for office. These commenters may not be (Ex. 12) felt the rule did not clearly defenses that are commonly applied to aware that the Office of Price-Anderson indicate how potential violations would American industry in OSHA Enforcement, which has independent be identified and screened. This commenter suggested that DOE develop enforcement proceedings. These oversight authority, currently enforces compliance directives such as those commenters offered specific examples, nuclear safety requirements, will used by OSHA. DOE agrees that including defenses related to a standard expand its enforcement function to enforcement guidelines with clearly being ‘‘unenforceably vague,’’ lack of include enforcement of the worker defined terminology will aid the employee endangerment, lack of safety and health provisions of this rule. Department in ensuring fair and employer knowledge of a hazard, Another commenter (Ex. 13) consistent enforcement. DOE has technological or economic feasibility of described the enforcement policy as revised Appendix B of the final rule abatement for noise and toxic substance establishing a highly complex nuclear (previously Appendix A of the hazards or regulatorily proposed safety process that far exceeds what supplemental proposed rule) to clarify mitigation plans, unpreventable or OSHA expects of the industrial sector. severity levels, and final rule section unforeseeable employee misconduct, DOE disagrees with this statement. The 851.44 clearly describes the lack of employer control over a hazard, worker safety and health program administrative appeals process. and emergency conditions. DOE implemented in the final rule is based Additionally, DOE intends to publish recognizes the value of additional on the program management provisions enforcement guidance supplements guidance on these matters but notes that established in DOE Order 440.1A and its (EGS) that, coupled with Appendix B to affirmative defenses from OSHA predecessor orders to address the final rule, will further guide the citations are not built into the regulatory occupational safety and health at DOE text of the OSHA standards as suggested facilities. The worker safety and health enforcement process. by some of the commenters. Such program was based in large measure on A commenter (Ex. 16) concerned the OSHA Voluntary Safety and Health specifically with the Noncompliance defenses are instead discussed in OSHA’s enforcement guidance, Management Guidelines published in Tracking System (NTS) process and 1989. Accordingly, DOE believes that NTS reporting thresholds suggested that including the Field Inspection Reference Manual. The defenses the provisions of the final rule are DOE use an enforcement process similar generally consistent with what OSHA to that used for the enforcement of commonly addressed in OSHA guidance include unpreventable employee expects of effective worker safety and Price-Anderson Amendment Act health programs in the private sector. (PAAA). This commenter indicated that misconduct, impossibility, greater Compliance costs and accounting DOE could benefit from its experience hazard, and multi-employer workplaces. were a concern for several commenters. of implementing the PAAA process over DOE intends to follow a similar Two of these commenters (Exs. 31, 48) the past 10 years, particularly by approach by incorporating guidelines on felt that DOE enforcement will result in integrating costly NTS reporting with these types of affirmative defenses in increased cost to contractors ‘‘to Occurrence Reporting and Processing appropriate EGSs to the extent these respond to new and extensive System (ORPS), making use of fully defenses are appropriate for DOE. enforcement activities.’’ DOE disagrees. integrated contractor management Another commenter (Ex. 11) suggested Contractors with effective integrated systems (as in draft DOE Order 226.1), that the rule should contain details of an safety management programs, which following the Nuclear Regulatory inspection targeting process that incorporate both nuclear safety and Commission (NRC) precedents by outlines the procedures DOE will use as worker safety and health programs, have eliminating subjective NTS reporting the criteria for selecting facilities for little to worry about. The Office of Price- thresholds, and encouraging contractors inspection. The commenter indicated Anderson Enforcement intends to to shift from ‘‘event driven’’ to that OSHA has published criteria of this enforce both nuclear and worker safety ‘‘assessment driven’’ reporting. While type, which are used to ensure effective and health programs from the same not opposed to further clarification of use of limited enforcement resources. office, using similar operating NTS reporting thresholds, DOE notes DOE does not agree with this comment. principles. The Office of Price-Anderson that the DOE community has experience There is no statutory requirement that Enforcement will most likely consider in implementing tracking programs. DOE outline its process for identifying enforcement action in significant Contractors have long been responsible and prosecuting violations of the Part situations. Another commenter (Ex. 29) for recording and analyzing 851. Such a process would interfere suggested that—for the purposes of the occupational safety and health (OSH) with the discretion necessary to Major Fraud Act—the rule should noncompliances and tracking abatement effectively implement the statutory include a provision stating when the cprice-sewell on PROD1PC66 with RULES2 progress as required by DOE Order mandate. However, as previously contractor must begin segregating the 440.1A. To help refine the process mentioned, DOE does intend to develop costs of responding to a DOE safety and under the final rule, the Office of Price- EGSs that will present guidelines for the health investigation, since these costs Anderson Enforcement plans to develop enforcement process. The Office of will not be recoverable if a violation is and publish in appropriate EGSs, Price-Anderson Enforcement expects to confirmed. DOE has significant thresholds for voluntary contractor adapt many of OSHA’s inspection experience with the Major Fraud Act in VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6905 connection with the implementation of DOE will use contractor self- both DOE’s and the contractor part 820. Accordingly, the same assessments as a basis for enforcement understands of the requirements. procedures and requirements that DOE actions. This commenter recommended Section 851.40—Investigations and has already successfully applied to that DOE adopt OSHA’s policy Inspections enforcement actions under 10 CFR part regarding the treatment of voluntary 820 will apply to enforcement actions employer safety and health self-audits. Section 851.40 establishes DOE’s right under 10 CFR part 851. DOE notes that contractors are to conduct investigations and DOE received a number of comments responsible for identifying and tracking inspections to confirm contractor in addition to those discussed above noncompliances. The Office of Price- compliance with the rule and describes that recommended that DOE incorporate Anderson Enforcement does not intend the steps DOE must take when various aspects of OSHA’s enforcement to routinely ask to see contractor self- performing an investigation or program. A few commenters (Ex. 29, 37, assessment reports for the purpose of inspection. The section also gives 47) believed that DOE should use an identifying noncompliances; however, contractors certain rights and enforcement process based on OSHA to the Office may review such documents responsibilities during inspections and better serve the needs of worker safety during the course of a program review investigations. and health. For instance, one or during an investigation prompted by Section 851.40(a) gives the Director commenter (Ex. 37) felt strongly that an an event such as an accident, recurring the right to take any actions necessary ‘‘OSHA approach to safety or repetitive condition, or programmatic to conduct inspections and enforcement’’ is more appropriate and failure. investigations of contractor compliance better understood by DOE management One commenter (Ex. 48) suggested with health and safety program and operating contractors and that ‘‘The overall effect of this rule requirements. In order to conduct these subcontractors than the nuclear safety * * * as written will be to burden both inspections, DOE enforcement officers enforcement approach proposed in the the Government and its contractors with have the right to prompt entry into rule. The commenter suggested that a potentially massive reporting and worksites. DOE consider relying upon OSHA analysis effort. Contractors will be One commenter (Ex. 42) indicated enforcement guidance and case law for compelled to report each variation in that DOE must establish clear determining violations and penalties standard compliance and the DOE procedures for OE to carry out under the DOE rule, particularly in enforcement and investigative arm [will investigations and enforcement actions. regard to the General Duty Clause and be compelled] to read and screen all This commenter believed that these affirmative action defenses. DOE does reports for NOV issue.’’ It appears to procedures should specify what events not agree with this commenter’s DOE that this commenter assumes that will trigger an informal conference and assertion that contractors are unfamiliar a contractor may have a significant subsequent enforcement action and with the enforcement approach in this number of noncompliances on the whether Type A and B investigations rule. This rule will apply to contractors effective date of this rule. This should will be used as the basis for legal action. and their subcontractors, just as the not be the case since contractors should Again, DOE finds that it is more nuclear safety rules apply. Therefore, already be in compliance with DOE appropriate to establish inspection these parties should already be familiar Order 440.1A, which provides the basis protocols EGSs. These EGSs, coupled with the enforcement regime and the for this final rule. Noncompliances that with Appendix B to the final rule, will flow down of requirements. Two other existed in the past should have been guide the enforcement process and commenters (Exs. 38, 57) believe that, identified, analyzed, and tracked address the issues raised by the unlike the OSHA enforcement process, through abatement. Any commenter. The Office of Price- the DOE enforcement process in the noncompliances that still exist, should Anderson Enforcement will use all supplemental notice of proposed already be in the contractors’ tracking available information in exercising its rulemaking would not afford contractors systems. The magnitude of emerging enforcement authority. the right to a hearing with the ability to noncompliances should not overwhelm A second commenter (Ex. 5) inquired present witness testimony before reporting systems. whether the Office of Price-Anderson penalties are assessed. DOE disagrees The same commenter (Ex. 48) also Enforcement is considering revising the and notes that the final rule gives views the rule as providing only existing guidance provided in the contractors several opportunities to punitive compliance mechanisms. The Operational Procedures (Identifying, contest notices of violation and provide commenter argued that relying only on Reporting, and Tracking Nuclear Safety evidence (including witness testimony) punitive measures will reverse the Noncompliances Under PAAA, June to support their position. These successful partnering of DOE and its 1998 edition) or if the Office will opportunities include the right, under contractors that has achieved significant develop a stand-alone guidance final rule section 851.44, to an safety and health performance in recent document for the review and reporting administrative appeal to the Office of decades. The commenter suggested that determination of potential non- Hearings and Appeals in accordance the DOE rule will shift the focus of compliances. As stated above, the Office with 10 CFR 1003, Subpart G, which contractor worker safety and health of Price-Anderson Enforcement intends establishes procedural regulations for practice to policing for conditional to provide EGSs that will cover NTS the DOE Office of Hearings and Appeals violations and away from successful reporting thresholds. with respect to private grievances and proactive programs. DOE disagrees, A number of commenters (Exs. 11, 16, redress.) The procedures under 10 CFR believing instead that this rule is more 28, 29, 35, 36, 37, 43, 45, 47, 51) 1003.77 also allow petitioners to seek likely to enhance the relationship expressed the opinion that Voluntary further judicial review of the final order between DOE and its contractors. DOE Protection Program (VPP) sites should cprice-sewell on PROD1PC66 with RULES2 issued by the Office of Hearings and contractors have already made not be subject to programmed Appeals. contractual commitments to perform inspections or should qualify for a Another commenter (Ex. 42) their work in accordance with DOE’s reduction in inspections. DOE agrees expressed concern that the safety and health requirements as that VPP sites are likely to have the best supplemental notice of proposed established in DOE Order 440.1A. The worker safety and health programs and rulemaking does not address whether rule will only clarify and strengthen be in substantial compliance with the VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 6906 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations provisions of this rule. Nevertheless, complaints, even those made by a in any part of the inspection, except the DOE believes it is important that VPP private citizen who called with an right to accompany an inspector under sites be subject to all of the provisions investigation request. DOE agrees that supplemental proposed section of this rule. The Office does not expect the original language in supplemental 851.10(b)(4). DOE notes that final rule these sites to have many NTS-reportable proposed section 851.400(c) too board. section 851.20(b) establishes the right violations, but the Office will respond Accordingly, final rule section 851.40(c) for a worker representative to as necessary to significant violations clarifies DOE’s intent to allow workers accompany the Director during the and develop appropriate programmed or their representatives the opportunity physical inspection of the workplace. If inspection strategies. to request an investigation or inspection a representative is not available, the One commenter (Ex. 31) asked of a specific work place safety and Director must consult, as appropriate, whether inspection and investigation health concern. DOE intends to respond with employees on matters of worker authority will be delegated to the field to all worker and worker representative safety and health. During an evaluation or site office level. Enforcement requests for investigation or inspection, of a noncompliance or an inspection, authority rests with the Office of Price- at least to the extent needed to the Office of Price-Anderson Anderson Enforcement and will not be determine if further action is necessary Enforcement normally interviews delegated to the field or site office or warranted. If the initial investigation individuals with direct knowledge of levels. DOE does not, however, intend reveals that further investigation or the workplace to gather information to interfere with inspection and inspection is unwarranted, the Director such as frequency of exposure, duration investigation activities conducted by the may, under final rule section 851.40(i), of exposure, and other details. The field or site offices. A commenter (Ex. close the investigation. Office of Price-Anderson Enforcement 32) suggested that the rule address how It is important to note that the Office expects that, through this process, the the Office of Price-Anderson of Price-Anderson Enforcement expects appropriate people would be consulted. Enforcement will take the results of that workers or worker representatives One of the commenters (Ex. 54) was inspections that are performed at DOE will have first presented their concerns also concerned that a worker’s ability to sites by the Office of Independent through their respective Employee request and receive copies of Oversight and Performance Assurance’s Concerns Programs (ECPs), but without inspections and accident investigations Office of Safeguards and Security satisfactory resolution. Several related in accordance with ISM and with Evaluations (OA–10) and EH’s Office of comments (Exs. 31, 36, 42, 48) suggested supplemental proposed section Quality Assurance Programs (EH–31), that this rule recognize the ECP and 851.10(b)(4) may be curtailed by into account when determining the contractor management as an avenue to portions of this section. DOE disagrees frequency and necessity of its own resolve concerns involving safety and notes that final rule section inspections. The Office of Price- matters. Two of these commenters (Exs. 851.20(b), which mirrors the worker Anderson Enforcement will use all 31, 48) indicated that if the issue cannot rights provisions of DOE Order 440.1A, available information, from any source, be resolved, then the worker should be clearly establishes that workers have the in developing enforcement protocols able to request an investigation but not right to obtain results of inspections and and plans, and making enforcement an inspection; they argued that a request accident investigations, as described in decisions. for inspection should be handled only final rule section 851.20(b)(6). Section 851.40(b) requires contractors through the established ECP program or When a contractor becomes the to cooperate with DOE throughout contractor management chain of subject of an investigation or inspection, enforcement activities. DOE received no command. final rule section 851.40(d) requires the comments on section 851.40(b) during DOE notes that final rule sections Director to inform the contractor in the public comment period. 851.20(a)(6) through (9) establish writing. The written notification must The right of a worker or worker provisions for contractors to develop describe the purpose of the action and representative to request an and implement procedures allowing be provided at the initiation of the investigation is included in final rule workers to express concerns regarding investigation or inspection process. section 851.40(c). Although the worker workplace hazards and for contractors Three commenters (Exs. 28, 45, 51) may remain anonymous, the to respond to those concerns. While requested that DOE revise supplemental investigation request should identify the DOE intends for workers to explore proposed section 851.400(d) to require activity of concern as specifically as these avenues first, DOE does not feel it the Director to notify a contractor in possible and include supporting is appropriate to restrict a worker’s right writing prior to the initiation of a documentation. Several commenters to request an inspection or investigation proceeding under the Major Fraud Act. (Exs. 30, 54, 55, 60) suggested that by requiring them to try these other A fourth commenter (Ex. 36) asked persons requesting investigations or options first. DOE disagrees with the whether this section would change the inspections be allowed to remain comment that inspections should be Office of Price-Anderson Enforcement’s anonymous. DOE agrees, final rule limited to the ECP or contractor chain practice in defining a ‘‘proceeding’’ section 851.40(c) now includes a of command. Onsite inspections often under the Major Fraud Act. DOE has provision establishing a worker’s or are a necessary part of an investigation significant experience with the Major worker representative’s right to remain and may give the Office of Price- Fraud Act in connection with the anonymous upon filing a request for an Anderson Enforcement the best implementation of part 820. inspection or investigation. opportunity to verify whether a Accordingly, the same procedures and Two commenters (Exs. 26, 39) asked violation or noncompliance exists. requirements that DOE has already DOE to clarify that it is up to the Two commenters (Exs. 54, 55) asked successfully applied to enforcement Director to determine whether a that employees and their representatives actions under 10 CFR part 820 will cprice-sewell on PROD1PC66 with RULES2 complaint will be investigated and be given the right to accompany the apply to enforcement actions under 10 suggested changing the subject of this inspector under supplemental proposed CFR part 851. paragraph from ‘‘any person’’ to a section 851.400(c). One of these A commenter (Ex. 47) suggested that ‘‘covered worker.’’ The commenters commenters (Ex. 54) stated that this DOE indicate in the rule that all thought such a change would avoid the section would not give workers or their information pertaining to the implication that DOE will investigate all representatives the right to be involved investigation or inspection that is in the VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6907 possession of DOE will be provided to inspection. DOE received no comments initiate or close an investigation. If facts the contractor at the initiation of the on section 851.40(g) during the public presented or discovered during the investigation or inspection. Although comment period. investigation indicate that further action DOE generally provides such Section 851.40(h) permits the Director is unwarranted, then the Director may information to contractors, the Office of to convene, and require a contractor to close the investigation without Price-Anderson Enforcement must attend, an enforcement conference to prejudice. If, after the initial retain the right not to disclose certain discuss any information related to a investigation is closed, facts are information if it believes the situation that might be a violation of a discovered which indicate that the information may interfere with the requirement in this part. Conference investigation should be reopened or willingness of individuals to step discussions might include, but are not reconvened, then the Director may forward on a confidential basis or if limited to, the significance or causes of reopen the investigation. sharing the information will hinder the a violation, corrective action taken or Section 851.40(j) allows the Director Office’s enforcement activities. not taken by the contractor, and to issue enforcement letters that state Therefore, DOE is not adopting this mitigating or aggravating circumstances. DOE’s expectations with respect to any suggestion. DOE will not make a transcript and the aspect of the requirements of Part 851. Section 851.40(e) prohibits DOE from conference is not normally open to the The enforcement letter, however, may releasing to the public any information public. not create the basis for a legally obtained during an investigation or Two commenters (Exs. 31, 48) enforceable requirement pursuant to inspection, unless the Director indicated that informal conferences this part. One commenter (Ex. 29) authorizes the public disclosure of the should never be open to the public since inquired whether supplemental investigation. Once the Director it would hinder open dialogue and the proposed section 851.400(j) should have authorizes public disclosure for an cooperative nature of the conference. used the term ‘‘Enforcement Guidance investigation, the information associated DOE agrees that enforcement Supplements’’ rather than ‘‘enforcement with the investigation is a matter of conferences should not normally be letters.’’ DOE disagrees because the two public record. Prior to and disclosure, open to the public, but believes that this terms are separate and distinct. DOE must determine that disclosure is is a matter that is appropriately within Enforcement letters are issued in cases not precluded by the Freedom of the discretion of the Director. This where DOE decides that an enforcement Information Act (FOIA), 5 U.S.C. 552, provision is consistent with the Office action is not required, but concludes and Part 1004 of this title. of Price-Anderson Enforcement nuclear that it is important to communicate a DOE received several comments safety enforcement provisions and particular message to the contractor. An expressing concern about the Director’s practices. The same commenters (Exs. 31, 48) enforcement letter is a vehicle to discretion to authorize or withhold public disclosure of information related also noted that if the Director can highlight actions taken by the contractor to an investigation. Three commenters compel contractor attendance at the that were appropriate and that formed (Exs. 26, 39, 48) wondered whether the informal conference, then the ‘‘official the basis for not taking more formal Director’s discretion overrides FOIA, enforcement process’’ has begun at that enforcement actions. The enforcement Privacy Act, and judicial determinations point and the contractor should attend letter will also usually identify areas (1) of what otherwise might remain with legal counsel present. DOE has that may have been less satisfactory confidential or be required to be significant experience with the Major than desired but not sufficiently serious released. These commenters were Fraud Act in connection with the to warrant enforcement action, and (2) particularly concerned about protection implementation of part 820. in which contractor attention is required of classified project or proprietary Accordingly, the same procedures and to avoid a more serious condition that information. Two of these commenters requirements that DOE has already would require enforcement action. An (Exs. 39, 48) expressed similar concerns successfully applied to enforcement enforcement letter may also highlight about supplemental proposed section actions under 10 CFR part 820 will noteworthy contractor practices. EGSs, 851.400(f), which addressed requests for apply to enforcement actions under 10 on the other hand are issued confidential treatment of information. CFR part 851. With respect to the periodically by the Office of Price- DOE recognizes these concerns and ‘‘conferences,’’ DOE has determined that Anderson Enforcement to provide confirms that the Director’s actions with it is appropriate to retain the term clarifying guidance regarding the respect to release of documents are ‘‘informal conference’’ to retain processes used in enforcement always subject to the constraints of law. consistency with section 820.22. activities. EGSs provide information or Final rule section 851.40(e) or 851.40(f) Another commenter (Ex. 47) asked recommendations only and impose no has been revised to clarify that that contractors be allowed to request requirements or actions on DOE disclosure of information is subject to informal conferences. DOE agrees; final contractors. the Freedom of Information Act. rule Appendix B (‘‘General Statement of Section 851.40(k) permits the Director Section 851.40(f) clarifies that a Enforcement Policy’’), paragraph VII (d) to sign, issue, and serve subpoenas. For request for confidential treatment of clarifies that a contractor may request an NNSA sites, this responsibility is information under the Freedom of enforcement conference. assigned to the NNSA Administrator in Information Act (FOIA), does not Section 851.40(i) permits the Director final rule section 851.45(a). Several prevent disclosure of the information if to close the investigation or inspection commenters (Exs. 28, 45, 51) argued that the Director determines the release is in if facts show that further action is this provision would present an the public interest and is permitted or unwarranted. Two commenters (Exs. 31, apparent conflict of interest if the required by law. 48) suggested that when the Director investigator can become party to the cprice-sewell on PROD1PC66 with RULES2 During an investigation or inspection, closes an investigation due to lack of judicial process by signing, issuing, and final rule section 851.40(g) allows any factual evidence or if evidence shows no serving subpoenas. DOE disagrees with contractor to submit to DOE any violation, then the matter should be this concern and notes that the Director information that the contractor feels closed without prejudice and may not and NNSA Administrator have each explains the contractor’s position or is be reopened by the Director. DOE notes been given subpoena authority within relevant to the investigation or that the Director has the authority to their statutory purview. VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 6908 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations Section 851.41—Settlement Section 851.42—Preliminary Notice of and answers to questions set forth in the Section 851.41 encourages settlement Violation PNOV. Under section 851.42(d), if the of DOE enforcement proceedings and Section 851.42 permits the Director to contractor fails to submit a reply and all establishes a basic framework within issue a preliminary notice of violation supporting documents within the which settlements shall proceed. This (PNOV) to the contractor if the Director allowed time, the contractor section presents the rights and duties of believes that a violation of this part has relinquishes the right to appeal the the Director and contractors seeking to occurred. The section lists the specific PNOV. Section 851.42(e) requires that resolve issues through a consent order. information that must be included in the PNOV be prominently posted in the Section 851.41(a) states that DOE the PNOV and in the contractor’s reply. area where the violation occurred until encourages settlement of any The PNOV constitutes a final order with the violation is corrected. DOE did not receive comments enforcement proceeding, if settlement is no right of appeal if the contractor fails related specifically to sections 851.42(a) consistent with Part 851. At any time, to reply within 30 days. Once final, the through (e) during the public comment the Director and contractor may hold a PNOV must be posted. period. settlement conference, which will not DOE received two general comments be recorded in a transcript or open to regarding section supplemental Section 851.43—Final Notice of the public. proposed section 851.402. In the first, Violation Section 851.41(b) allows the Director three commenters (Exs. 54, 55, 60) noted Section 851.43 requires the Director to to use a consent order to resolve issues that the supplemental proposal review a contractor’s timely written in an outstanding proceeding. The contained no requirement to post reply to a preliminary notice of consent order must set forth the relevant notifications of violation. Two of these violation (PNOV). If the Director facts, terms, and remedies to which the commenters (Exs. 54, 55) were also determines that a violation occurred, parties agree and must be signed by both concerned that the section provided no this section allows the Director to issue parties. The order need not find or right of worker or union appeals or for a final notice of violation that includes admit that a violation occurred, but worker or union involvement in any specific information listed by this shall constitute a final order. way in the process. DOE agrees that it section. Unless the contractor petitions DOE did not receive any comments is appropriate for workers or their the Office of Hearings and Appeals, the specific to section 851.41(a) or representatives to play a role in the final notice constitutes a final order. 851.41(b), but did receive three process and has revised the rule to Section 841.43(a) establishes that the comments that relate to 851.41 as a facilitate their participation. In the final Director will review and make a final whole. One commenter (Ex. 30) was rule, section 851.20(b)(5) gives worker determination regarding a contractor’s concerned that enforcement actions that representatives the right to accompany timely reply to a PNOV. If the Director require funding to abate hazards pose a the Director during inspections or, if a determines that a violation has occurred ‘‘special challenge to a self regulated representative is not available, requires or is continuing to occur, the Director entity.’’ The commenter believes that inspectors to consult employees on may issue the contractor a final notice such actions should not be settled matters of health and safety. Section of violation as described by section unless the settlement contains a 851.20(b)(6) gives workers the right to 841.43(b). Specifically, the final notice resource-loaded plan that will ensure request and receive results of must state that the contractor may implementation. DOE notes that DOE inspections and accident investigations. petition the Office of Hearings and field management are involved in all DOE also has included in section Appeals in accordance with 10 CFR Part decision making related to enforcement 851.42(e) a requirement that PNOVs be 1003, subpart G. actions, and settlement negotiations posted once they are final. One commenter (Ex. 47) include appropriate cost considerations. A commenter (Ex. 28) argued that a recommended that supplemental The same commenter was joined by contractor should give greater weight to proposed sections 851.403 and 851.404 another (Exs. 30, 54) in suggesting that an OSHA decision involving an be revised to provide for appeals to DOE should allow workers and unions interpretation of an OSHA standard Administrative Law Judges (ALJs), to elect party status in an enforcement than to a DOE interpretation of the same following the PAAA process contained proceeding and to participate in standard. DOE notes that OSHA in 10 CFR 820, rather than to DOE’s settlement negotiations, as is allowed by interpretations of OSHA standards will Office of Hearings and Appeals. DOE OSHA. The second commenter (Ex. 54) be considered valid unless directed by has not accepted this comment, because also objected to the fact that the DOE General Counsel. However, DOE initial decisions based on an evidentiary supplemental proposed rule would reserves the right to deviate from an record are prepared by the Office of permit all settlement records to be kept OSHA interpretation when it applies to Price-Anderson Enforcement. Therefore, secret and would provide no appeal a unique operation at a DOE site. In a trial de novo (new trial) is unnecessary right on the settlement. DOE disagrees such cases, DOE will issue its own and the Office of Hearings and Appeals with these commenters and does not interpretation for purposes of is the appropriate forum to which intend to provide this opportunity. The implementing the DOE worker safety appeals may be referred. Director is responsible for carrying out and health program. Under section 841.43(c), a contractor the intent of enabling legislation as Section 851.42(a) authorizes the relinquishes any right to appeal if the delegated by the Secretary. A Director to issue a PNOV. The PNOV contractor fails to make a timely petition commenter (Ex. 45) requested that DOE must include specific information under for review of a final notice of violation. define the term ‘‘settlement.’’ After section 851.42(b), including as the facts In the absence of a petition for review carefully reviewing this comment, DOE on which the alleged violation is based, the final notice becomes a final order. cprice-sewell on PROD1PC66 with RULES2 believes the settlement process is proposed remedies and civil penalties, adequately described in final rule and a statement obliging the contractor Section 851.44—Administrative Appeal section 851.41 and need not be to reply in writing within 30 days. Section 851.44 establishes the right of separately defined. The final rule does Section 851.42(c) requires that the a contractor to petition the Office of define the outcome of a settlement (that contractor’s reply cover the relevant Hearings and Appeals for review. is, a consent order), in section 851.3. facts, any extenuating circumstances, Section 851.44(a) describes this right, VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6909 which must be exercised within 30 experts throughout the Department as discussed in further detail in the calendar days of receipt of the final part of the Order development process. sections that follow. notice of violation. Section 851.44(b) As a result, at the time of publication of 1. Construction Safety clarifies that in order to exhaust final DOE Order 440.1A, these provisions remedies; the contractor must make reflected the state-of-the-art in corporate Appendix A, section 1 (formerly such a petition in accordance with safety and health program requirements supplemental notice of proposed section 851.44(a). and were established with the rulemaking section 851.202) establishes DOE received several general concurrence of each DOE Program requirements and responsibilities that comments on the review process. Secretarial Office. Since the order was apply to the construction managers and Several commenters (Exs. 15, 31, 47) published, the Department has gained construction contractors for planning suggested that a third party reviewer close to a decade of experience in and implementing appropriate worker (not DOE) should handle contractors’ successfully implementing these safety and health measures during petitions instead of the Office of functional area provisions on DOE construction activities. For the Hearings and Appeals. These worksites. These sections build on the construction section of this rule, it was commenters recommended that lessons learned over these years and necessary to provide separate contractors be given an opportunity to establish appropriate functional area definitions in final rule section 851.3 challenge a proposed civil penalty enhancements as deemed necessary by that are applicable to construction in either before an ALJ or in a U.S. District DOE subject matter experts in order to circumscribe those activities to Court, as provided for in 10 CFR 820. conjunction with the respective DOE which the construction safety The commenters pointed out that ALJs internal technical advisory committees. provisions apply and to assign routinely hear OSHA cases and have a Several commenters (Exs. 16, 27, 28, responsibilities for these activities. The greater familiarity with OSHA definition of ‘‘construction’’ was taken 42, 45) expressed concern that the requirements and case law. One of these directly from OSHA’s standards, which provisions of this Appendix would commenters (Ex. 15) went on to suggest in turn has taken its definition from the require contractors to expend additional that DOE establish a small independent Davis-Bacon Act regulating wage rates effort and resources to submit safety and review commission as a final step in the for federally funded construction health plans above and beyond the administrative review process, as is projects. safety and health program called for The definition for ‘‘construction used effectively by OSHA. A related under supplemental proposed Section comment (Ex. 61) inquired whether the contractor’’ as provided in order to 851.100 or to perform an extensive discern where in the contract hierarchy final rule would provide a mechanism review and analysis of existing for contesting or overturning potential the responsibility for implementing the programs to ensure compliance with the provisions of a construction contract findings that a contractor believes to be rule. DOE does not believe that this is technically inaccurate. As discussed lies. Depending on the contracting the case. The fundamental requirements situation, the construction contractor with regards to final rule section 851.43, captured in Appendix A of the final rule may be the management and operating the Office of Price-Anderson reflect those of DOE Order 440.1A, contractor if the work is performed Enforcement prepares initial decisions which has been applicable at DOE directly by his forces or it may be a based on an evidentiary record. worksites for many years. Consequently, subcontractor to the management and Therefore, a trial de novo (new trial) is DOE believes that contractors are operating contractor or a subcontractor unnecessary and the Office of Hearings already complying with these to a separate construction management and Appeals is the appropriate forum to requirements and thus minimal, if any, contractor. which appeals may be referred. additional effort will be needed. Similarly, the definition of Section 851.45—Direction to NNSA One commenter (Ex. 28) sought ‘‘construction manager’’ was provided Contractors clarification on whether plans required in order to discern where in the project Section 851.45 establishes that for under the functional area sections of the hierarchy the responsibility for primary NNSA contractors, it is the NNSA rule must be submitted for DOE oversight of the construction contractor Administrator, rather than the Director, approval. Section 851.11 of the final lies. For the purpose of this rule, the who issues subpoenas and notices. rule requires contractors to submit to a construction manager could be DOE if Section 851.45(a) gives the NNSA written worker safety and health the construction work is performed Administrator authority to sign, issue, program that provides the methods for directly by the management and and serve subpoenas, orders, implementing the requirements of operating contractor or it may be the disclosures, preliminary notice of Subpart C (which includes the management and operating contractor if violations, and final notices. The functional areas) to the appropriate the construction work is performed by Administrator must consider the Head of DOE Field Element for a subcontractor to the management and Director’s recommendation. approval. Accordingly, a description of operating contractor. It could also be a how the contractor will meet the separate firm hired by DOE or the Appendix A—Worker Safety and requirements of Appendix A of the final management and operating contractor to Health Functional Areas rule must be included in the worker perform construction management This appendix establishes the safety and health program that is services. mandatory requirements for submitted for DOE approval. The definitions for ‘‘construction implementing the applicable functional These sections also establish project’’ and ‘‘construction worksite’’ areas required by 10 CFR 851.24 of this provisions for a new functional area were provided in order to circumscribe part. These provisions from DOE Order within the comprehensive worker the activities and geographic location, cprice-sewell on PROD1PC66 with RULES2 440.1A, ‘‘Worker Protection protection program to address biological respectively, to which the construction Management for DOE Federal and safety. DOE believes this new functional safety provisions of this rule apply. Contractor Employees,’’ were derived area is warranted to address concerns Some commenters (Exs. 16, 27, 28, 36, through years of coordination, analysis, that arose from the anthrax terrorist 42, 45) expressed concern that the and review and comment procedures attacks of October 2001. Provisions for provisions of this section would require seeking input from top subject matter each of the functional areas are contractors to expend additional effort VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 6910 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations and resources to submit safety and activities that use standard personal described within the activity analysis. health plans above and beyond the protective equipment require a hazard The provision of supplemental safety and health program called for analysis. DOE’s intent, as stated in proposed section 851.202(a)(3) that under supplemental proposed section Appendix A section 1(a), is to require would have made a worker’s use of 851.100 or to perform an extensive activity level hazard analysis for each appropriate protective measures a review and analysis of existing definable construction activity. The condition of employment was cited by programs to ensure compliance with the need for personal protective equipment four commenters (Exs. 16, 31, 36, 48) as rule. As stated previously, DOE does not does not dictate the need to perform a reducing flexibility in labor/ believe that this is the case, because the hazard analysis. Rather, the hazard management relations. DOE agrees with requirements in Appendix A, section 1, analysis, through the identification of these concerns. Accordingly, this of the final rule reflect those of DOE workplace hazards, dictates the need for provision was revised in Appendix A Order 440.1A. workplace controls and protective section 1(a)(3), of the final rule to state One commenter (Ex. 54) requested equipment. that the construction contractor must that references to OSHA’s Process Safety One commenter (Ex. 48) argued that it require that workers acknowledge being Management standards (29 CFR is more appropriate to perform an informed of the hazards and protective 1910.119 and 1926.64) be added to the ongoing hazard analysis rather than measures associated with assigned work construction safety requirements of the performing the hazard analysis before activities and to require that workers rule. DOE notes, however, that final rule initiating the construction project. DOE failing to use the required controls be section 851.23 requires contractors to agrees in part. As noted in Appendix A subject to the contractor’s disciplinary comply with all standards at 29 CFR section 1(a), the hazard analysis process. One commenter (Ex. 16) argued 1910 and 1926, so a separate reference required under section 1(a)(1) is that the rule should include an is not needed in Appendix A, section 1, required for ‘‘each separately definable enforcement provision that does not of the final rule. construction activity (e.g., excavations, hold contractors responsible for willful Three commenters (Exs. 16, 28, 45) foundations, structural steel, roofing).’’ non-compliance on the part of were of the opinion that the language in DOE’s intent with this provision is that employees. DOE agrees with this this section of the supplemental the construction manager prepares a commenter and has added a provision proposal was subjective and more hazard analysis prior to the start of each in final rule section 851.20(b) to suitable as contract language than as discrete construction activity within the prohibit workers from taking actions enforceable language in a rule. DOE project. DOE acknowledges that these inconsistent with the rule. As considers the ‘‘subjectivity’’ of this activities will likely occur at different mentioned in the section-by-section language—now captured in Appendix stages of the overall project and that discussion for section 851.5 of the final A, section 1, of the final rule—to be some contractors may find it easier to rule, DOE will develop enforcement useful in allowing for a graded approach prepare the related analyses as the guidance for the rule that will include in the implementation of the project progresses rather than all at one provisions similar to OSHA’s construction safety requirements. A time. DOE believes that this decision is unpreventable employee misconduct graded approach can also be applied to best left to the discretion of the defense—outlined in OSHA’s Field the development and approval of health construction manager provided that the Inspection Reference Manual, Chapter and safety plans by the construction hazard analyses meet the requirements III, paragraph C.8.c(1). manager, which was an area of concern of section 1(a)(1). Appendix A section 1(b) requires the for other commenters (Exs. 36, 42). Several commenters (Exs. 26, 36, 39, construction contractor to have a Other commenters (Exs. 20, 29, 37, 45, 42, 45, 48, 51) noted that the wording designated representative on the 51, 54) requested clarification on the of supplemental proposed section construction worksite during periods of responsibilities of various contractors at 851.202(a)(1)(iii) implied the need for a active construction and that this a DOE construction site. Accordingly, professional engineer for a wide variety representative is knowledgeable of DOE has introduced the terms of services beyond those prescribed by project hazards and have the authority ‘‘construction contractor’’ and OSHA’s construction standards, 29 CFR to take actions. The section further ‘‘construction manager’’ and specified 1926. DOE agrees that the language of clarifies that the representative must distinct responsibilities and the supplemental proposal could be conduct frequent and regular requirements for each type of contractor, misinterpreted and, as a result, this inspections of the worksite to identify in addition to providing definitions for provision was edited in Appendix A and correct hazards. these two terms in section 851.3— section 1(a)( iii), of the final rule to Several commenters (Exs. 16, 31, 36, Definitions. reflect the requirement for professional 42, 47, 48, 49) objected to the The provisions of section 1(a)(1) of engineering services consistent with requirement for a construction Appendix A focus on the requirement OSHA’s standards. contractor’s designated representative to for construction contractors to prepare A number of commenters (Exs. 15, 19, be on the construction worksite at all activity hazard analyses for project 42, 45, 48, 49, 51) took issue with the times. These commenters also activities prior to commencement of wording of supplemental proposed questioned the need for daily worksite work on the affected activities. One section 851.202(a)(1)(iv) and the need to inspections by the contractor’s commenter (Ex. 40) pointed to the need provide qualifications for competent designated representative and requested for construction managers to provide a persons. This provision was changed in clarifications on the terms ‘‘on site at all list of known worksite risks (e.g., site Appendix A section 1(a)(iv) of the final times’’ and ‘‘active construction’’ (Exs. characterization data) to the rule to require the identification of the 20, 29, 39, 47, and 48). The need for a construction contractor so that they can competent person for each work contractor’s representative to be onsite cprice-sewell on PROD1PC66 with RULES2 be appropriately addressed in the activity, consistent with OSHA during active construction derives from construction contractor’s activity hazard requirements. the Federal Acquisition Regulation analysis. Section 1(a)(ii) was added to Appendix A section 1(a)(2) requires (FAR) Parts 36.506 and 52.236–6, the final rule to address this concern. the construction contractor to ensure Superintendence by the Contractor, Another commenter (Ex. 29) that workers are aware of foreseeable which state that ‘‘At all times during requested clarification on whether hazards and the protective measures performance of this contract and until VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6911 the work is completed and accepted, the workers must report. Accordingly, the construction contractors’ safety and Contractor shall directly superintend word has been deleted from the rule and health plans. These comments focused the work or assign and have on the the text clarified to refer to hazards that on the fact that DOE generally does not worksite a competent superintendent have not been previously identified or have the personnel resources to fulfill who is satisfactory to the Contracting evaluated. Another commenter (Ex. 48) this requirement. DOE agrees with these Officer and has authority to act for the questioned the appropriateness of the comments and has changed the Contractor.’’ The term ‘‘active term ‘‘immediate corrective action’’ on approving authority in section 1(a)(1) to construction’’ in section 1(b) of the grounds that it implies permanent the construction manager. Appendix A is effectively defined by the correction. DOE disagrees that the term 2. Fire Protection addition of the parenthetical statement is inappropriate. Appendix A section clarifying that ‘‘active construction’’ 1(c) specifically discusses the Appendix A section 2 (formerly excludes periods of inactivity such as conditions for which interim control supplemental notice of proposed weekends or weather delays. With measures are appropriate (i.e., when rulemaking section 851.203), establishes regard to the frequency of safety and immediate corrective action is not the basic requirements for a health inspections, the text in section possible or the hazard falls outside the comprehensive fire protection program. 1(b) has been changed to replace the project scope). Numerous commenters (Exs. 2, 3, 4, 5, term ‘‘daily’’ with ‘‘frequent and On the subject of workers reporting 8, 13, 15, 29, 31, 36, 39, 42, 47, 48, 49, regular’’ in an effort to be consistent hazards not previously identified or 61) objected to the approach taken in with OSHA’s construction safety evaluated, one commenter (Ex. 31) the supplemental proposed rule with standard addressing this issue, 29 CFR responded that, because current regard to fire protection. Section 1926.20(b)(2). practices involve workers reporting 851.203 of the supplemental proposal One commenter (Ex. 49) requested safety concerns to their immediate included specific requirements for fire that the term ‘‘onsite’’ in supplemental supervisors, the requirement be protection and fire department proposed section 851.202(a)(4) be reworded to include reporting of operations. DOE agrees that a more replaced with ‘‘available’’ to hazards to either the immediate pragmatic and less prescriptive accommodate for the designated supervisor ‘‘or’’ the designated approach to the delineation of representative’s lunch breaks. DOE representative. DOE disagrees. requirements for fire protection and believes that, in the absence of activity Designated representatives, as discussed emergency services is appropriate. on the construction worksite during a above, are persons with the authority to Consequently, the final rule has been lunch break, there is no need for the act on behalf of the construction revised to include the text from the fire presence of a designated representative. contractor and, therefore, are the protection portion of DOE Order However, if construction continues appropriate persons to inform of the 440.1A, which has been in effect since during the designated representative’s hazards. This does not, however, 1998. lunch break, the contractor must ensure preclude the contractor from One commenter (Ex. 5) suggested that that another representative is designated establishing internal procedures to the rule prohibit the purchase or use of and present onsite. require workers to report hazards to self-illuminating exit signs or other One commenter (Ex. 16) objected to a their immediate supervisor and the signs at nuclear facilities since these requirement in supplemental proposed designated representative. signs are a source of tritium and are section 851.202(a)(4) for specific Appendix A section 1(d) requires difficult to disassociate from a nuclear training for designated representatives. construction contractors to prepare a event at a nuclear facility. DOE notes DOE agrees with this commenter’s written construction project safety and that the purchase or use of self- concern and has removed the provision health plan to implement the illuminating exit signs or other signs at from the final rule. requirements of section 1 of the nuclear facilities is not within the scope Other commenters (Exs. 20 and 47) Appendix. The section stipulates that of the final rule. Self-illuminating exit requested a definition for the term the contractor must obtain the signs or other signs are commercially ‘‘designated representative.’’ DOE notes construction manager’s approval of the available and issued under the Nuclear that, although the rule does not provide plan before commencing any work Regulatory Commission’s general such a definition, section 1(b) provides covered by the plan. license. that the designated representative must There were several comments (Exs. Section 2(a) of Appendix A to the be a person who is knowledgeable of the 15, 40, 47, 48, 55) regarding the final rule establishes the specific project’s hazards and has full authority supplemental proposal’s requirement in requirements for the implementation of to act on behalf of the construction section 851.202(b) of having the a comprehensive fire protection contractor. monetary threshold of the Davis-Bacon program to ensure workers a safe and Appendix A section 1(c) is derived Act trigger the need for a written healthful workplace. These from provisions originally included in construction safety plan. The Davis- requirements, along with the applicable supplemental proposed section Bacon act was used in previous DOE NFPA standards, and DOE fire safety 851.202(a)(4). These provisions require policy, as a means for deciding which directives, technical standards and that workers be instructed to report activities were constructions. However, guidance, have historically been identified hazards to the contractor’s DOE has decided, after considering the considered necessary for a designated representative and that comments that using a law governing comprehensive fire safety program. The contractors take certain steps up to and wage rates as the determining factor for section further clarifies that the program including stopping work if they cannot a safety regulation is inappropriate and must include appropriate facility and immediately correct the hazards. often confusing. Hence, reference to the site-wide fire protection, fire alarm cprice-sewell on PROD1PC66 with RULES2 Several commenters took issue with a Davis-Bacon Act has been deleted from notification and egress features, and that variety of terms used in the original the final rule. contractors must assure access to a fully provision of the supplemental proposal. There were also numerous comments staffed, trained, and equipped Specifically, one commenter (Ex. 27) (Exs. 15, 16, 25, 28, 29, 36, 37, 42, 45, emergency response organization that is objected to the use of the word 49, 51) concerning the requirement for capable of responding in a timely and ‘‘unforeseen’’ in describing hazards that DOE to review and approve effective manner to site emergencies. VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 6912 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations Two commenters (Exs. 31, 39) of facility-specific requirements within One commenter (Ex. 13) suggested objected to the requirement that all NFPA codes and standards, DOE agrees that DOE consider adding the contractors must implement a fire that any requirement that is not directly Underwriters Laboratories (UL) listings protection and response program related to the safety and health of and Factory Mutual data sheets to (emphasis added). According to the workers is not applicable in the context Appendix A section 2. This commenter commenters, other options are available, of this rule. However, these did not, however, provide a rationale for including reliance on another requirements may apply to DOE this suggestion. Without a rationale DOE government agency or a public fire facilities through DOE directives, such could make determine the need for the department. The requirement for a as with DOE O 420.1, which are made inclusion of such standards in the final current Baseline Needs Assessment and applicable by contract. rule, therefore, DOE has not included the need for written pre-fire strategies, A number of commenters (Exs. 2, 4, them in the final rule. plans, and standard operating 22, 49, 54, 55, 61) objected to the Another commenter (Ex. 54) procedures, as would be provided by inclusion of specific editions of the requested that references to OSHA’s section 851.203(a)(7) and (a)(8) in the applicable NFPA standards, arguing that Process Safety Management standards supplemental notice of proposed as this would result in the enforcement (29 CFR 1910.119 and 1926.64) be rulemaking was of concern to other of obsolescent criteria. As discussed added to the fire safety requirements of commenters (Ex. 36, 39, 48). These previously, DOE has decided against the rule. DOE notes that final rule commenters were of the view that these incorporating into the rule most of the section 851.23 requires contractors to requirement should not apply to standards included in the supplemental comply with all standards at 29 CFR contractors that do not operate fire proposed rule. 1910 and 1926. Hence, a separate departments. DOE agrees with the Two commenters (Exs. 7, 29) reference is not needed in Appendix A commenters, and has revised the text to expressed concern that adoption of section 2 of the final rule. Several emphasize that contractors must have NFPA Standard 1710, and the commenters (Exs. 2, 4, 16, 48, 49, 59, access (emphasis added) to a fully enforcement of requirements from other 61) objected to the lack of explicit staffed, trained, and equipped NFPA standards that govern fire reference to the ‘‘equivalency’’ concept emergency response organization that is department operations would impose that has historically been used within capable of responding in a timely and significant burdens (in terms of time, the DOE fire safety community to effective manner to a spectrum of site staffing, paperwork, etc.) on site rationalize alternative approaches to fire emergencies. However, DOE expects emergency services organizations for safety. DOE agrees in part and that the decision regarding the type of which there are insufficient budgets. concludes that, beyond the definition of emergency services capability that is a formal exemption process to this rule, Other commenters (Exs. 5, 37, 39, 42, credited is based, in part, on the results no explicit reference to ‘‘equivalencies’’ 48) stated their belief that the non-fire of a Baseline Needs Assessment. is necessary, as this concept is an department oriented requirements A few commenters (Exs. 31, 42, 49, integral part of all NFPA codes and would also significantly increase costs. 61) requested that DOE define standards and DOE fire safety directives. DOE agrees and has deleted the NFPA ‘‘qualified fire protection engineer.’’ The recommendation made by two standards governing fire department DOE has removed this term from the commenters (Exs. 36, 42) that the operations from the final rule. final rule. Authority Having Jurisdiction (AHJ) be Appendix A section 2(b), requires One commenter (Ex.1) suggested that responsible for approving fire safety inclusion of appropriate fire protection NFPA Standard 1600, ‘‘Disaster and code and standard equivalencies (as criteria and procedures, analyses, Emergency Management and Business required by DOE Order 420.1A) instead hardware and systems, apparatus and Continuity Programs’’ be included in of the DOE site manager (as would be equipment, and personnel in the fire the rule. DOE disagrees with this required by the proposed rule) is protection program to ensure that the recommendation because this standard acceptable to DOE. objective in Appendix A section 2(a) is is included in other DOE directives, met. This includes meeting the such as DOE O 420.1, which apply, 3. Explosives Safety applicable building code and National through contracts, to DOE facilities. Appendix A section 3 (formerly Fire Protection Association (NFPA) Several commenters (8, 15, 29, 31, 35, supplemental notice of proposed Codes and Standards or exceeding them, 36, 37, 42, 46, 49) objected to the list of rulemaking section 851.204), of the final when necessary, to meet safety NFPA and other industry standards rule establishes safety provisions for objectives, unless explicit written relief because there was no consideration for DOE contractors performing work has been granted by DOE. the fact that many DOE facilities were involving explosive materials. Numerous commenters (Exs. 2, 4, 5, 8, constructed years ago under the Appendix A section 3(a) establishes the 16, 19, 22, 24, 31, 37, 42, 45, 49, 53, 54, ‘‘code(s) of record.’’ DOE agrees with the primary requirement for DOE 58, 61) objected to the number of NFPA commenter and has revised the list of contractors to develop, implement, and codes and standards proposed by DOE standards to more closely mirror the list maintain a comprehensive explosives in the supplemental notice of proposed of standards required under DOE O safety program. These provisions this rulemaking, as many appeared to have 440.1A. It is DOE’s intent that program must assure that workers, little, or no relevance to activities at contractors use DOE fire safety visitors, and members of the public are DOE sites. Similarly, another directives which establish the concept not exposed to significant explosives commenter (Ex. 39) asserted that some of compliance with a ‘‘code of record.’’ threats (blast overpressure, fragment, of the requirements in those codes and Another commenter (Ex. 49) debris, structural collapse, heat and standards applied to the protection of questioned on how NFPA standards fire). cprice-sewell on PROD1PC66 with RULES2 structures and were not directly related would apply in leased locations where DOE explosives handling and to the safety and health of workers. DOE the contractor has no enforcement processing operations are an integral has decided that an exhaustive list of authority and does not control the fire part of DOE weapons and weapons- applicable NFPA standards is department manpower, training and related development, manufacturing, unnecessary and has not included a list equipment. DOE has deleted the NFPA and dismantlement activities as well as in the final rule. With regard to the issue standards from the final rule. DOE security operations. Safety in all VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00056 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6913 operations associated with explosive Explosive Safety Manual. Specifically, DOE critically evaluated each of these materials is an ongoing, primary the Manual states that if blasting comments and considered related input concern and must be given high priority operations are routine in the context of from the Department’s Pressure Safety in all program direction and construction or tunneling blasting, then Committee in crafting the pressure management activities. the more appropriate OSHA 1910 and safety section of the final rule. DOE DOE received a number of comments 1926 standards may be used. However, notes that the DOE Pressure Safety on the explosives safety provisions magazines must be sited according to Committee includes both federal and included in section 851.204 of the the Department of Defense (DoD) contractor experts from within the DOE supplemental proposed rule. A majority Criteria in DoD 6055.9, DOD complex. Based on this evaluation and of these commenters (Exs. 8, 15, 20, 37, Ammunition and Explosives Safety an evaluation of comments on the 59) stated that the rule should require Standards. Transportation of explosives overall supplemental proposed rule in contractors to comply with DOE Manual across DOE sites must be in conformity general, DOE revised the pressure safety 440.1–1, DOE Explosives Safety Manual. with the Manual. DOE does not believe, section of the final rule to closely follow These commenters argued that the however, that explosive demolition of the requirements of the Pressure System provisions in this section of the facilities should be considered a routine Safety section in DOE Order 440.1A. supplemental proposal were vague and use of explosives due to its unique risks. DOE Order 440.1A has governed were not as comprehensive and clear as As a result, DOE intends that such pressure system safety within DOE for the provisions of the DOE Explosives operations would be governed by the last eight years and has been well Safety Manual. The commenters noted requirements in the DOE Technical scrutinized through an expert technical specific concerns regarding reference to Standard on Explosive Demolition of review processes. an undefined certification program to Structures. The sections that follow provide a train persons assigned to explosives Several commenters (Exs. 9, 16, 22, detailed discussion of the provisions of operations (Exs. 37, 59); the omission of 59) questioned the incorporation of the pressure safety section of the final a grandfather clause to address older NFPA 495, Explosives Materials and rule as well as a summary of, and DOE facilities that cannot meet newer NFPA 498, Standards for Safe Havens responses to, the specific comments requirements (Ex. 59); the omission of and Interchange Lots for Vehicles received related to these provisions. criteria related to firebreaks and fire Transporting Explosives, in Subpart C of One commenter (Ex. 20) expressed exits (Exs. 37, 59); and the omission of the supplemental proposal. These concern that intensive configuration critical components of the lightning commenters noted that the standards are management would be required to protection program (Exs. 37, 59). These administer the requirements of the rule not applicable to the military style of commenters noted that the DOE and research would be necessary to explosives materials used in DOE and Explosives Safety Manual was establish a clearly documented baseline felt that their inclusion in the rule specifically developed to address for compliance. In response to this would only confuse covered contractors explosives safety in DOE operations and concern, DOE notes since the pressure with conflicting and less rigorous safety felt that reliance on the Manual rather safety requirements in the final rule policies. DOE agrees with these than the incomplete explosives safety incorporate the existing requirements in commenters and has removed the requirements in the supplemental DOE Order 440.1A, DOE believes that standards from the final rule. proposal would provide for more contractors, who are already in effective protection of the DOE work Appendix A section 3(c) of the final compliance with DOE Order 440.1A, force. rule clarifies that contractors must will require minimal, if any effort to DOE agrees with these commenters determine the applicability of the implement the rule requirements. and has accordingly replaced the explosives safety requirements to Appendix A section 4(a) describes technical provisions that were included research and development laboratory what constitute pressure systems and in the supplemental proposal with the type operations consistent with the DOE requires contractors to establish safety basic requirement in Appendix A level of protection criteria established in policies and procedures to ensure they section 3(b) that contractors comply the DOE Explosives Safety Manual. This are designed, fabricated, tested, with DOE Manual 440.1–1A, Explosives provision was added to the final rule to inspected, maintained, repaired, and Safety Manual (DOE M 440.1–1A), address one commenter’s (Ex. 36) operated by trained and qualified Contractor Requirements Document concern that the explosives safety personnel in accordance with applicable (Attachment 2), January 9, 2006. As provisions of the supplemental proposal and sound engineering principles. noted by the commenters, this Manual did not accommodate laboratory Two commenters (Ex. 42, 49) establishes safety controls and standards activities where the forms and requested a definition of pressure that are not addressed in other existing quantities of explosive materials did not systems. DOE notes that the DOE DOE or non-DOE regulations. The represent a significant personnel or Pressure Safety Committee has, in the Manual closes the considerable safety facility hazard. draft Implementation Guide to DOE gap created by DOE’s unique activities, Order 440.1A, defined pressure systems 4. Pressure Safety governs the DOE explosives safety in the following terms: ‘‘Pressure process, and ensures that explosives Appendix A section 4 (formerly systems are comprised of all pressure safety is commensurate with actual risk. supplemental notice of proposed vessels, and pressure sources including One commenter (Ex. 39) questioned rulemaking section 851.205), of the final cryogenics, pneumatic, hydraulic, and why the explosives safety provisions in rule establishes pressure safety vacuum. Vacuum systems should be the supplemental proposal specifically requirements for DOE contractors considered pressure systems due to excepted the use of explosive material performing activities at covered their potential for catastrophic failure cprice-sewell on PROD1PC66 with RULES2 for routine construction, demolition, workplaces. DOE received numerous due to backfill pressurization. and tunnel blasting. Although, this comments regarding the corresponding Associated hardware (e.g. gauges, and specific exception has been removed section of the supplemental proposed regulators), fittings, piping, pumps, and from the text of the final rule, the rule expressing concern or requesting pressure relief devices are also integral exception, with additional clarification clarification of proposed pressure safety parts of the pressure system’’. DOE has and rationale, is a part of the DOE provisions. included this definition in final rule VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 6914 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations section 851.3 and in Appendix A appearance of being inappropriate or (because of pressure range, vessel section 4(a). In addition, DOE unsafe for components within the scope geometry, use of special materials, etc.), emphasizes that cryogenic and vacuum of the ASME code.’’ The commenter contractors must implement measures to systems are included as pressure recommended presenting both provide equivalent protection and systems. requirements in a manner that clarified ensure a level of safety greater than or Two commenters (Ex. 29, 48) their relationship and scope. In equal to the level of protection afforded suggested that pressure retaining vessel response DOE notes that the by the ASME code. DOE notes that safety requirements were best imposed corresponding final rule section has documented organizational peer review through contract provisions or through been revised to present the relevant is acceptable for the design drawings, specifications for new components, and codes within the pressure safety sketches, and calculations that must be that operational safety requirements requirements in Appendix A section reviewed and approved by a were already contained in the 4(b). Additionally, DOE reiterates that professional engineer. applicable national consensus standards this new section follows the (OSHA regulations) incorporated in the 5. Firearms Safety requirements of the pressure system proposed rule. The commenters safety section in DOE Order 440.1A. Appendix A section 5 of the final rule specifically suggested modifying the According to Appendix A section (formerly supplemental notice of language in proposed section 851.205(a) 4(b)(1) through (3) of the final rule, proposed rulemaking section 851.208), to require contractor safety policies and contractors must ensure that all pressure establishes firearms safety policies and procedures to ensure that design, vessels, boilers, air receivers, and procedures for security operations, and fabrication, testing, inspection, supporting piping systems conform to training to ensure proper accident maintenance and operation of pressure the applicable ASME Boilers and prevention controls are in place. Two systems is performed by ‘‘qualified Pressure Vessel Safety Codes, the ANSI/ commenters (Exs. 27, 45) asserted that personnel in accordance with applicable ASME B.31 Piping Code or the strictest the requirements in Appendix A section safety or national consensus standards.’’ applicable state and local codes. These 5 of the final rule appear to be a In response, DOE notes that the provisions are consistent with the long summarization of existing DOE Orders corresponding Appendix A section held policy of only citing the ASME and will likely require extensive review (4)(a) follows the requirements of the code on pressure vessels or the ANSI and analysis for contractors to come into Pressure System Safety section in DOE piping code, which are mainly compliance with the rule requirements. Order 440.1A, according to which manufacturing and fabrication codes. Since the industrial hygiene contractors must establish safety The research and development requirements in the final rule policies and procedures to ensure that aspects of DOE often require that some incorporate the existing requirements in pressure systems are designed, pressure vessels are built to contain very DOE Order 440.1A, DOE believes that fabricated, tested, inspected, high pressure that is above the level of for contractors that are already in maintained, repaired, and operated by applicability of the ASME Pressure compliance with DOE Order 440.1A, it trained and qualified personnel in Safety Code. Other times, new materials should require minimal, if any, effort to accordance with applicable and sound or shapes are required that are beyond implement the rule requirements. engineering principles. Further DOE the applicability of the ASME Code. In Some commenters (Exs. 5, 36, 25, 42) stresses that training of personnel using, these cases, addressed under Appendix requested clarification on whether the maintaining, repairing, or constructing A section 4(c), rational engineering requirements of the rule apply to sites pressure systems is paramount. The provisions are set to govern the vessels without armed security forces and to the inspection and maintenance of the construction and use and assure occasional use of firearms for research systems is also essential as they decay equivalent safety. purposes or for activities like the over time and a reasoned engineering Appendix A section 4(c) provides capture and study of wildlife. The approach must be used to maintain guidelines for equivalent measures that provisions of Appendix A section 5(a) safety. contractors may implement in the event apply only to contractors engaged in Appendix A section 4(b) further that national consensus standards are DOE activities involving the use of describes the applicable national not applicable to ensure pressure system firearms. The scope and nature of work consensus standards including safety and meet the requirements of the activities involving specific types of professional and state and local codes, final rule. hazards in this case, the use of firearms that contractors must conform to with A few commenters (Ex. 29, 42, 49) determines whether the requirements of respect to pressure system safety in DOE sought clarification of what constituted a particular safety program apply to the covered workplaces. an ‘‘independent peer review’’ to workplace. Generally, the rule DOE received numerous comments determine if national consensus codes requirements do not apply to sites that (Exs. 2, 8, 16, 19, 29, 37, 45, 49) and standards were applicable or not. In do not have armed security forces. Other expressing concern over the inclusion of response to this concern, DOE has use of firearms at DOE facilities, such as ASME codes in proposed section revised the language of the the use of firearms for research (e.g., 851.201(c) and suggested they be corresponding final rule section to material testing) or for activities like the eliminated or modified. In response to eliminate use of the phrase capture and study of wildlife, also could these concerns, DOE has revised the ‘‘independent peer review.’’ One create conditions that warrant the corresponding final rule section commenter (Ex. 49) further questioned application of Appendix A section 5(a) Appendix A section 4(b) to eliminate what approved measures were to be firearms safety provisions. the proposed tables and any cited implemented in the event consensus Two commenters (Exs. 42, 49) were of standards that lacked relevance to the standards were not applicable. In the opinion that rule did not correctly cprice-sewell on PROD1PC66 with RULES2 pressure safety requirements of the rule. response, DOE has provided greater identify the types of contractors that One commenter (Ex. 16) expressed clarification in final rule Appendix A must comply with the firearms safety concern over the separation of section 4(c) of the measures that are to requirements. The commenters requirements for compliance with be used. The final rule Appendix A suggested that use of the term ‘‘a ASME codes and ensuring pressure section 4(c) provides that when national contractor engaged in DOE activities safety and suggested it gave ‘‘the consensus codes are not applicable involving the use of firearms’’ would be VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6915 more appropriate than the phrase ‘‘a and duty assignments to ensure overall Two commenters (Exs. 27, 45) contractor responsible for a workplace’’ policy objectives and performance asserted that the requirements in which had been used in the criteria are being met by qualified supplemental proposed section 851.209 supplemental notice of proposed personnel. appeared to be a summarization of rulemaking. DOE agrees with the According to the provisions of existing DOE Orders and would likely commenters and the language in Appendix A section 5(e), contractors require extensive review and analysis Appendix A section 5(a) had been must implement procedures related to for contractors to come into compliance revised accordingly. firearms training, live fire range safety, with the rule requirements. Since the Written procedures must address qualification, and evaluation activities, industrial hygiene requirements in the firearms safety, engineering and including procedures requiring that: (1) final rule incorporate the existing administrative controls, as well as Personnel must successfully complete requirements in DOE Order 440.1A, personal protective equipment initial firearms safety training before DOE believes that for contractors that requirements according to Appendix A being issued any firearms; (2) are already in compliance with DOE section 5(a)(1). authorized armed personnel must Order 440.1A, minimal, if any, effort Appendix A sections 5(a)(2)(i) demonstrate through documented will be required to implement the rule through (viii) establish requirements for limited scope performance tests both requirements. contractors to develop specific technical and practical knowledge of One commenter (Ex. 37) procedures for various activities that firearms handling and safety on a semi- recommended that Appendix A section involve the use of firearms including the annual basis; (3) all firearms training 6 reference DOE’s Industrial Hygiene storage, handling, cleaning, inventory, lesson plans must incorporate safety for (IH) manual and the OSHA standards in and maintenance of firearms, all aspects of firearms training task lieu of the American Conference of ammunition, pyrotechnics etc. performance standards; (4) firearms Governmental Industrial Hygienists’ Procedures must also be developed for safety briefings must immediately (ACGIH’s) threshold limit values (TLV) the use of firing ranges by personnel precede training, qualifications, and manual. DOE notes that final rule other than DOE or DOE contractor evaluation activities involving live fire section 851.23 requires contractors to protective forces personnel. As a and/or engagement simulation systems; comply with the standards listed in that minimum, procedures must be (5) a safety analysis approved by the section, which include OSHA standards established for: (1) Storage, handling, Head of DOE Field Element must be as well as the ACGIH TLVs. Further, the cleaning, inventory, and maintenance of developed for the facilities and purpose of the DOE IH manual is to firearms and associated ammunition; (2) operation of each live fire range prior to serve as a guidance tool rather than as activities such as loading, unloading, implementation of any new training, regulatory text. Therefore, DOE believes and exchanging firearms. These qualification, or evaluation activity, and that it is neither necessary nor procedures must address use of bullet the results of these analyses must be appropriate to reference the DOE IH containment devices and those incorporated into procedures, lesson manual in Appendix A section 6, in techniques to be used when no bullet plans, exercise plans, and limited scope place of the standards already required containment device is available; (3) use performance tests; (6) firing range safety by section 851.23. and storage of pyrotechnics, explosives, procedures must be conspicuously The absence of any requirement for and/or explosive projectiles; (4) posted at all range facilities; and (7) live worker participation within the handling misfires, duds, and fire ranges, approved by the Head of provisions of rule was an issue for two unauthorized discharges; (5) live fire DOE Field Element, must be properly commenters (Exs. 54 and 55). Sections training, qualification, and evaluation sited to protect personnel on the range, 851.20(a) and (b) of the final rule activities; (6) training and exercises as well as personnel and property not requires worker participation in work- using engagement simulation systems; associated with the range. related safety and health activities and (7) medical response at firearms training Contractors must ensure that the evaluations. This section also requires facilities; and (8) use of firing ranges by transportation, handling, placarding, worker access to various types of safety personnel other than DOE or DOE and storage of munitions conform to the and health information, in addition to contractor protective forces personnel. applicable DOE requirements to satisfy providing for other workers’ rights. In order to comply with the the requirements of Appendix A section Therefore, there is no need for worker provisions of Appendix A section 5(b), 5(f). participation requirements to be contractors must ensure that personnel specified separately in Appendix A 6. Industrial Hygiene responsible for the direction and section 6. operation of the firearms safety program Appendix A section 6 of the final rule Appendix A section 6 in the final rule are professionally qualified and have (formerly supplemental notice of contains provisions for contractor sufficient time and authority to proposed rulemaking section 851.209), implementation of a comprehensive and implement the procedures under this provides the industrial hygiene program effective industrial hygiene program to section. requirements. Industrial hygiene is an reduce the risk of work-related disease Appendix A section 5(c) requires that important component of a or illness. One commenter (Ex. 16) contractors must ensure that firearms comprehensive worker protection considered the use of the term instructors and armorers have been program. The contents of this functional ‘‘workplace’’ in the supplemental certified by the Safeguards and Security area were developed by the DOE proposed 851.209(a) confusing, National Training Center to conduct the Industrial Hygiene Coordinating especially for sites where DOE utilizes level of activity provided. Additionally, Committee (IHCC) to identify those multiple contractors. DOE agrees with personnel must not be allowed to minimum requirements necessary to the commenter and, accordingly, this cprice-sewell on PROD1PC66 with RULES2 conduct activities for which they have implement an effective industrial term had been deleted from the text of not been certified. hygiene program. The minimum set of Appendix A section 6. Appendix A section 5(d), mandates requirements that resulted from this Appendix A section 6(a) requires that contractors conduct formal process reflects the recommendations of initial or baseline surveys and periodic appraisals assessing implementation of industrial hygiene experts from across resurveys and/or exposure monitoring procedures, personnel responsibilities, the DOE complex. as appropriate of all work areas or VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00059 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 6916 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations operations to identify and evaluate identification or definition for Several commenters (Exs. 27, 28, 36, potential worker health risks. Several carcinogens. 42, 48) expressed concern that the commenters (Exs. 12, 15, 16, 35, 42, and Appendix A section 6(e) of the final requirements in supplemental proposed 48) contended that conducting initial rule requires that the contractors’ section 851.207 would expose and baseline surveys of all work areas industrial hygiene program be managed contractors to dual regulation because or operations can be burdensome and and implemented by professionally and they would be subject to Part 851, based costly, especially for areas undergoing technically qualified industrial on DOE directive and to DHHS and or intended to undergo decontamination hygienists. Agriculture rules. These concerns are and decommission. DOE disagrees with unfounded. When 10 CFR 851 is made this contention. The requirements of 7. Biological Safety effective, including the Biological Safety Appendix A section 6(a) allow Appendix A section 7 of the final rule requirements of Appendix A section 7, contractors the flexibility to determine (formerly supplemental notice of DOE N 450.7 will expire and will not be the appropriate level of assessment proposed rulemaking section 851.207), renewed. As stated above, today’s final based on the complexity of the provides the biological safety program rule incorporates the updated operation and the presence and level of requirements. In February 2001, the requirements in the DHHS and workplace hazards. The effort for DOE Office of Inspector General (DOE– Department of Agriculture rules. assessments should be graded according IG) issued a report entitled ‘‘Inspection One commenter (Ex. 28) sought to the level of risk each hazard poses. of Department of Energy Activities clarification on whether supplemental Regarding the question of Involving Biological Select Agents’’ proposed section 851.207 would be part ‘‘grandfathering’’ existing assessments, (DOE/IG–0492). In this report the DOE– of the worker health and safety plan that if a baseline assessment has already IG made 7 recommendations regarding must be submitted for DOE approval. been accomplished, as would be the the handling and use of biological Section 851.11 of the final rule requires case for contractors already in agents within the Department. In contractors to submit to a written compliance with the provisions of DOE response to this report the department worker safety and health program that O 440.1, and the workplace hazards and developed, through its directives provides the methods for implementing activities have not changed, then a new system, DOE Notice 450.7 ‘‘The Safe the requirements of Subpart C (which baseline assessment of risks is not Handling, Transfer, and Receipt of includes the functional areas, such as required. However, DOE agrees with the Biological Etiologic Agents at biological safety) to the appropriate commenters that areas or operations Department of Energy Facilities’’. Head of DOE Field Element for undergoing decontamination and Proposed 10 CFR 851.207 reflected the approval. A description of how the decommission could change on a daily requirements contained in DOE Notice contractor will meet the requirements of basis. As a result, more frequent 450.7. Appendix A section 7 of the final rule assessments are needed to ensure that must be included in the worker safety In November 2001, the Deputy all hazards are identified and and health program that is submitted for Secretary of Energy indicated in a memo controlled. DOE approval. that the Department must be a One commenter (Ex. 15) requested a Appendix A section 6(b), requires responsible steward of biological definition for the term ‘‘biological coordination with planning and design etiologic agents and directed etiological agents’’ which was included personnel to anticipate and control Departmental elements to have DOE in supplemental proposed section facility and operations related health Notice 450.7, The Safe Handling, 851.207 and is used throughout hazards as one of the elements of the Transfer, and Receipt of Biological Appendix A section 7 of the final rule. industrial hygiene program that contractors must implement. Etiologic Agents at the Department of DOE interprets the term ‘‘biological Coordination with cognizant Energy Facilities, incorporated into etiological agent’’ to mean any agent occupational medical, environmental, applicable contracts. DOE Notice 450.7 capable of causing disease in humans, health physics, and work planning lays out the Department’s expectations plants or animals. Other commenters professionals is another element of the for BioSafety at the DOE facilities. (Exs. 6, 15) noted that the term industrial hygiene program that is The Department of Health and Human ‘‘biological etiological agents’’ includes required by Appendix A section 6(c). Services (DHHS) and the Department of many agents that are of little importance According to Appendix A section Agriculture issued new regulations to workplace safety or do not pose a 6(d), the contractor’s industrial hygiene covering the possession, use, and security risk and therefore, program must include policies and transfer of select agents and toxins as recommended that this term be replaced procedures to control risks from interim final rules (42 CFR Part 73, 7 by either ‘‘Select Agents’’ as defined by identified and potential occupational CFR Part 331, and 9 CFR Part 121) in 42 CFR 73, or ‘‘Risk Group 3 and 4 carcinogens. Two commenters (Exs. 16, December 2003. The rules were issued agents.’’ DOE believes that the 48) asserted that the rule fails to specify in response to the Public Health requirements in Appendix A section or define the identified or potential Security and Bioterrorism Preparedness 7(a)(1) are meant to apply to not only carcinogens. DOE notes that section and Response Act of 2002 and provide select agents but to any agent that may 851.23 of the final rule mandates updated requirements to those found in cause disease. In order to comply with compliance with several safety and DOE Notice 450.7. The updated this intent of the rule, the site health standards, including OSHA requirements are included in this rule to institutional biological safety committee standards and the ACGIH TLVs, that cover DOE contractors. (IBC) should review all work with address occupational carcinogens. Appendix A section 7(a) (proposed as biological agents and determine if These standards identify occupational 851.207(a)) requires the establishment of appropriate controls are being put into cprice-sewell on PROD1PC66 with RULES2 carcinogens and provide additional an institutional biological safety place, although a graded approach information in the areas of exposure committee (IBC) to review work with should be used for the reviews to reflect levels, hazard control, and worker biological agents to ensure their the severity of the hazard. protection for different carcinogens. compliance with appropriate federal Appendix A section 7(a)(1) requires Consequently, Appendix A section 6(d) and state guidelines for this type of the establishment of an IBC to review does not provide a separate activity. work with biological agents to ensure VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00060 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6917 compliance with appropriate federal address these issues. The IBC should submission to the appropriate Head of and state guidelines for this type of note in its review of proposals if DOE Field Element a copy of each CDC activity. Several commenters (Ex. 25, 37, security has been properly addressed. Form EA–101, Transfer of Select Agents, 45, and 51) expressed concern that this However, the policy for security at a upon initial submission of the Form provision could be interpreted to apply DOE facility should be addressed by the EA–101 to a vendor or other supplier to contractors that do not possess or use security department. requesting or ordering a biological select biological etiological agents in the Appendix A section 7(a)(2) requires agent for transfer, receipt, and handling workplace. DOE intends that contractors maintenance of an inventory and status in the registered facility. The completed must implement the provisions of of biological etiologic agents. This copy of the Form EA–101, documenting Appendix A section 7(a)(1) wherever information must be submitted to the final disposition and/or destruction of they are applicable. A contractor that DOE field and area office as part of an the select agent must also be submitted does not perform work involving annual report describing the status and to the appropriate Head of DOE Field exposure to biological agents is not inventory of biological etiologic agents Element within 10 days of completion required to implement any provisions of and the program. One commenter (Ex. of the Form EA–101. Appendix A section 7. Another 42) requested definition of the terms Appendix A section 7(a)(5) of the commenter (Ex. 15) argued that the ‘‘status’’ and ‘‘readily retrievable final rule requires the IBC to confirm requirements in Appendix A section inventory’’ and sought clarification on that the site safeguards and security 7(a)(1) would result in additional costs what DOE expectations were for the plans and emergency management and increased workload for the IBC. contents of the annual status report. programs address biological etiologic DOE agrees that the term ‘‘readily agents, especially biological select DOE considers it good practice to retrievable’’ was unclear and has agents. One commenter asserted that the review any work undertaken with removed the term from the text of implementation of requirements in biological agents. Although the IBC is Appendix A section 7(a)(2) in the final supplemental proposed section required to review all work with rule. DOE interprets ‘‘status’’ as 851.207(e) would result in high costs to biological agents to determine if including information that will the contractors. As stated above, DHHS appropriate controls are in place, DOE determine whether the biological and the Department of Agriculture have believes that the extent and rigor of the etiologic agents are on site, dead or live, established requirements for Security review will depend upon the risk and frozen or in active storage as well as and Emergency Response plans through hazard associated with the agent being information on the person(s) 42 CFR Part 73.11 and 73.12. These used. Application of this graded responsible. This information is rules are enforced by DHHS and the approach should limit any increases in necessary to keep DOE informed on the Department of Agriculture, not DOE. the workload and associated costs. biological etiologic agent activities being Therefore, Appendix A section 7(a)(5) is Another commenter (Ex. 29) undertaken on the Departments sites. included to require the contractor to recommended that the word Appendix A section 7(a)(3) requires confirm that all site safeguards and ‘‘appropriate’’ in supplemental the submission of each Laboratory security plans and emergency proposed section 851.207(a)(1) be Registration/Select Agent Program management programs that address changed to ‘‘applicable.’’ DOE agrees, registration application package to the biological etiologic agents are in place. and has revised the text in Appendix A, head of the appropriate DOE field According to the requirements in section 7(a)(1)(i) of the final rule element. One commenter (Ex. 15) was Appendix A section 7(a)(6), the IBC accordingly. Appendix A section concerned that this provision may affect must establish an immunization policy 7(a)(1)(ii) of the final rule instructs every revision to the registration, for personnel working with biological contractors to confirm the presence of including those involving staff transfers etiologic agents based on the evaluation site security, safeguards, and emergency of materials. DOE’s intent is for the of risk and benefit of immunization. The management plans and procedures, provision to apply to the initial CDC has established guidelines for when performing work with biological registration submittal because this will immunizations and these guidelines etiologic agents. Two commenters (Ex. allow DOE to become aware of all should be consulted in the 15 and 42) found a lack of clarity in the bioagent activity. However, staff establishment of an immunization provisions of supplemental proposed transfers of materials need not be policy. section 851.207(a)(2) and the reported to DOE as long as the requirement for IBC review of security 8. Occupational Medicine Department of Health and Human plans and procedures; in their view, Services and the Department of Appendix A section 8 of the final rule security matters are typically not Agriculture rules and requirements are (formerly supplemental notice of considered to be an area of IBC met. Other commenters (Exs. 15, 42) proposed rulemaking section 851.210), expertise. DOE disagrees, believing the asked for the withdrawal of establishes the requirements for provisions in Appendix A section supplemental proposed section occupational medicine services. 7(a)(1)(ii) of the final rule appropriately 851.207(c). DOE disagrees with this Appendix A section 8(a) requires reflect the importance of maintaining request. As reported by DOE–IG (DOE/ contractors to provide comprehensive security measures with respect to IG–0492), DOE may not have knowledge occupational medicine services to bioagents. The DHHS and Department of of the presence of biological agents on workers employed at a covered work Agricultures rules (42 CFR 73.11 and a site. Appendix A section 7(a)(4) was place. One commenter (Ex. 33) 73.12), establish requirements for included to ensure that DOE is aware of expressed concern that supplemental Security and Emergency Response plans all biological agent activity occurring at proposed section 210 included many to be developed and implemented for DOE sites, as well as any information additional requirements for the cprice-sewell on PROD1PC66 with RULES2 select agents. DOE believes there must submitted to the Center for Disease preparation and implementation of be a determination of how much review Control and Prevention (CDC) regarding occupational medical programs beyond and oversight is needed for all types of how and where biological agents will be those in the initial proposed rule. The biological etiological agents and that the used. commenter also believed that IBC can provide the sites security Appendix A section 7(a)(4) of the supplemental proposed section 851.210 organization with the expertise to final rule contains provisions for expanded requirements for site VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00061 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 6918 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations occupational medical directors (SOMD) provision in Appendix A section 8(a) of commenter (Ex. 54) recommended in other areas of occupational medicine the final rule. adding workers and their regardless of the nature or size of DOE One commenter (Ex. 42) believed that representatives to supplemental activities. DOE has considered the supplemental proposed rule section proposed section 851.210(d) which comment but believes that the additions 851.210(a) was unclear in what was requires contractors to promote are necessary. The practice of considered to be a ‘‘comprehensive’’ communication and coordination occupational medicine is constantly occupational medical program or between all environmental, safety, and evolving and medical advances which services, and requested that DOE health groups. DOE agrees that worker must be incorporated into site provide elements of the OMP in the participation is a critical component of occupational medicine services to rule. DOE does not agree with the a successful safety and health program. ensure the health of workers in commenter and notes that the rules’ This section imposes requirements only maintained and/or improved, and that implementation guide is the appropriate on contractors to provide necessary DOE maintains its medical programs place to provide elements of the information to occupational medicine consistent with occupational medicine occupational medicine program. providers practice standards and guidelines. Three commenters (Exs. 28, 45, 51) Appendix A section 8(d)(1) of the Another commenter (Ex. 48) asserted recommended removing: ‘‘At sites with final rule requires contractors to provide that the occupational medical services operations performed by more than one occupational medicine providers with specified in supplemental proposed contractor, several contractors may access to information about site and section 851.210 would result in agree to use services provided under a employee hazards and exposures and substantial cost for non-management single contractor’s OMP,’’ from any changes in them. Specifically, and operating contractors. DOE does not supplemental proposed section Appendix A section 8(d)(1)(i) of the agree with the commenter’s assertion a 851.210(a) because they felt that this final rule requires current information requirement that all levels of contractors language was specific to multi-employer about actual or potential work-related provide comprehensive occupational DOE sites and need not be included in site hazards (chemical, radiological, medicine services will create a negative the rule. DOE agrees, and has deleted physical, biological, or ergonomic); health and safety situation for DOE, this sentence from the final rule. section 8(d)(1)(ii) requires employee job- including opening DOE up to increased However, contractors at multi-employer task and hazard analysis information, medical liability. In DOE’s experience, sites may choose to follow this approach including essential job functions; small contractors and subcontractors are to comply with the medical services section 8(d)(1)(iii) requires actual or capable of providing more that a requirement. potential work-site exposures of each minimal OSHA-level required Appendix A section 8(a)(1) of the employee; and section 8(d)(1)(iv) protection and health care. Therefore, final rule establishes that the specifies information on personnel the final rule retains the occupational occupational medicine services must actions resulting in a change of job medicine service provisions. provide services for workers who work functions, hazards or exposures to be Two commenters (Exs. 16, 28) on a DOE site for more than 30 days in provided to the occupational medicine believed that program-type documents a 12-month period and for workers who providers. to supplement the worker safety and are enrolled for any length of time in a One commenter (Ex. 48) expressed health program were not necessary. The medical or exposure monitoring concern about supplemental proposed commenters recommended that this program required by this rule and/or section 851.210(d)(3) because it would requirement be deleted, or integrated any other applicable Federal, State or require the SOMD to be engaged in with the overall worker safety and local regulation, or other obligation as determining the need for surveillance in health program. DOE does not agree specified in Appendix A section 8(a)(2) each individual’s case. The commenter with the commenter and believes that of the final rule. stated that in some cases, such as union the documents should be a part of the Appendix A section 8(b) of the final construction work, the collective overall worker safety and health rule establishes that occupational bargaining agreement may not permit program. medicine services must be under the medical screening of workers for fitness. Another commenter (Ex. 48) direction of a graduate of a school of DOE understands the commenter’s questioned if a contractor operating a medicine or osteopathy who is licensed concern and has omitted the language, limited occupational medicine program, for the practice of medicine in the state ‘‘prior to medical placement or such as a first aid station appropriate for in which the site is located. surveillance evaluations’’ from final rule construction, is required to adopt all of Appendix A section 8(c) of the final Appendix A section 8(d)(1)(iii). the elements in supplemental proposed rule requires that occupational medicine One commenter (Ex. 48) expressed section 851.210, assuming that the physicians, occupational health nurses, concern that supplemental proposed contractor desires to continue providing physician’s assistants, nurse section 851.210(d)(i) included these services after the effective date of practitioners, psychologists, employee ergonomic assessments. The commenter the rule. DOE contends that operating a assistance counselors, and other asked what would such a requirement first aid station is but one element of a occupational health personnel involve (i.e., what guidelines and comprehensive occupational medicine providing occupational medicine applicable standards would be used; program (OMP). DOE intends for this services must be licensed, registered, or what constitutes an adequate ergonomic rule to apply to all covered contractors, certified as required by Federal or State evaluation; what are the required including construction contractors. law where employed. credentials for an evaluator; and what One commenter (Ex. 16) felt that the Appendix A section 8(d) of the final constitutes a violation). DOE notes that use of the term ‘‘workplace’’ in rule states that contractors must provide a detailed explanation of ergonomics cprice-sewell on PROD1PC66 with RULES2 supplemental proposed section the occupational medicine providers and the information requested by the 851.210(a) could easily result in with access to hazard information by comment is not appropriate for a rule, unintended confusion and extensive promoting its communication, but will be discussed in the debate for sites where DOE utilizes coordination, and sharing among implementation guide to the rule. multiple contractors. DOE agrees with operating and environment, safety, and One commenter (Ex. 49) the commenter and has modified the health protection organizations. One recommended that DOE change VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00062 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6919 supplemental proposed section workplace for evaluation of job Appendix A section 8(f)(1) requires 851.210(d)(1) to read: ‘‘Current available conditions and issues relating to that employee medical, psychological, information about actual or potential workers’ health. and employee assistance program (EAP) work-related site hazards (chemical, Appendix A section 8(e) stipulates records must be kept confidential, physical, biological, or ergonomic);’’ that a designated occupational medicine protected from unauthorized access, and supplemental proposed section provider must: (1) Plan and implement stored under conditions that ensure 851.210(d)(2) to read: ‘‘Employee job- the occupation medicine services; and their long-term preservation. task and hazard analysis information, (2) Participate in worker protection Furthermore, the rule specifies that including essential job functions, as teams to build and maintain necessary psychological records must be requested by the SOMD;’’ and partnerships among workers, their maintained separately from medical supplemental proposed section representatives, managers, and safety records and in the custody the 851.210(d)(3) to read: ‘‘Actual or and health protection specialists in designated psychologist. This provision potential work-site exposures of each establishing and maintaining a safe and is consistent with 10 CFR 712.38(b)(2) employee prior to medical placement or healthful workplace. which applies to the DOE Human surveillance evaluations, as requested One commenter (Ex. 16) Reliability Program. Appendix A section by the SOMD.’’ DOE elected not to add recommended that DOE delete the 8(f)(2) establishes that access to these the suggested qualifiers. Limiting the proposed rule section 851.210(e)(2) that records must be provided in accordance requirement only to ‘‘available’’ required a formal written plan detailing with DOE regulations implementing the information or only that information methods and procedures implementing Privacy Act and the Energy Employees ‘‘requested by the site occupational the OMP on the basis that such a Occupational Illness Compensation medicine provider’’ would significantly requirement would place an Program Act. constrain the collection and unnecessary burden on the SOMD since One commenter (Ex. 62) requested dissemination of critical data. many contractor OMPs currently require that the proposed rule provision Several commenters (Exs. 16, 36, 42, a series of medical program procedures, 851.210(f)(1) prohibits the SOMD and 49) believed that supplemental rather than a higher level program their staff from providing employers or proposed section 851.210(d)(4) which document. The commenter further their lawyers with personal medical would require the SOMD to be notified stated that Subpart B already required information without the employee’s of employee job transfers should only be an overall written worker safety and consent. DOE notes that all medical required if the transferred employee health program that must provide for information is subject to the Privacy Act would be exposed to new or different effective implementation of the worker of 1974 and the Health Insurance hazards. DOE believes that the safety and health requirements of Portability and Accountability Act and occupational medicine provider should Subpart C. DOE notes the commenters is not released without signed consent know where to locate the employee for concerns and has revised the rule of the affected worker or other legal health related follow-ups, and how to accordingly. authorization. contact an employee in the case of an Appendix A section 8(f) requires that Appendix A section 8(g) specifies that emergency. a record, containing any medical, health the occupational medicine services Appendix A section 8(d)(2) of the history, exposure history, and provider must determine the content of final rule requires contractors to notify demographic data collected for the the worker health evaluations. These the occupational medicine providers occupational medicine purposes, must evaluations must be conducted under when an employee has been absent be developed and maintained for each the direction of a licensed physician, in because of an injury or illness for more employee for whom medical services accordance with current sound and than 5 consecutive workdays (or an are provided. Furthermore, the rule acceptable medical practices, and in equivalent time period for those stipulates that all occupational medical accordance with all pertinent statutory individuals on an alternative work records must be maintained in and regulatory requirements, such as the schedule). One commenter (Ex. 48) accordance with Executive Order 13335, Americans with Disabilities Act. One stated that the proposed rule section Incentives for the Use of Health commenter (Ex. 48) suggested that DOE 851.210(d)(5) would place a significant Information Technology. Several eliminate supplemental proposed rule burden on the SOMD in cases of off-the- commenters (Exs. 5, 15, 25, 29, 39, 42, section 851.210(f)(2) because the rule job illness, and did not specify if the 48) expressed concern over the extended the occupational medical injury or illness must be work-related or proposed rule provision 851.210(f) that program into the domain of disability not. required all records containing any evaluations under the Americans with Appendix A section 8(d)(3) requires medical, clinical, health history, Disabilities Act (ADA). DOE disagrees contractors must provide the exposure history, and demographic data and has retained the provision in the occupational medicine provider collected under OMP be kept in final rule since occupational medicine information on, and the opportunity to electronic format, beginning January service providers are required to participate in, worker safety and health 2007. Most of these commenters cited conduct post offer/pre-placement team meetings and committees. One significant costs as the basis for their physical and mental examinations in commenter (Ex. 25) expressed concern concern. Another commenter (Ex. 49) accordance with the ADA. that the proposed rule section believed that the proposed rule Several commenters (Exs. 16, 25, 47, 851.210(d)(6) required SOMDs to be provision required all medical records 49) took exception to the requirement in offered the opportunity to participate in collected under OMP be kept in proposed rule section 851.210(f)(3) for worker safety and health team meetings electronic format, beginning January the SOMD to maintain an up-to-date list and committees, yet worker safety and 2007, should be clarified to apply only of all medical evaluations and tests that cprice-sewell on PROD1PC66 with RULES2 health teams or committees were not for medical records generated on or after are offered and to submit this list mentioned anywhere else in the January 1, 2007. DOE has modified the annually through the Cognizant Field supplemental proposed rule. final rule to be consistent with Element to the Office of Environment, Appendix A section 8(d)(4) requires Executive Order 13335 which requires Safety and Health. These commenters that contractors provide occupational that medical records be available suggested eliminating this requirement. medicine providers with access to the electronically by 2015. One commenter (Ex. 16) suggested the VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00063 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 6920 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations process would be more efficient if the with DOE records management DOE has modified the language in final list of medical evaluations was included regulations. rule Appendix A section 8(g)(2)(i) to in the information in the overall Worker Appendix A section 8(g)(2) requires include the term ‘‘evaluation’’ in place Safety and Health Program. DOE agrees certain health evaluations to be of ‘‘examination.’’ with the commenters and has conducted when deemed necessary by Two commenters (Exs. 39, 49) sought eliminated the requirement from the the occupational medicine provider for clarification of the term ‘‘job transfer.’’ final rule. the purpose of providing initial and One commenter (Ex. 49) suggested Appendix A section 8(g)(1) requires continuing assessment of an employee’s defining the term as ‘‘involving new or that workers must be informed of the fitness for duty. One commenter (Ex. 62) different hazards,’’ while the other purpose and nature of the medical believed that the rule should explicitly commenter (Ex. 39) inquired whether evaluations and tests offered by the bar the SOMD from ‘‘prescribing tests, both new and existing employee occupational medicine provider. including behavioral science exams, for movement between jobs was covered Specifically, Appendix A section purposes of carrying out retaliation under the provision. DOE notes that 8(g)(1)(i) requires that the purpose, against employees who were engaged in final rule Appendix A section 8(g)(2)(i) nature and results of evaluations and protected activities, such as reporting clarifies ‘‘job transfers’’ as transfers to tests must be clearly communicated waste, fraud, abuse or unlawful or jobs with new functions and hazards. verbally and in writing to each worker unsafe activities, unless the un-coerced Additionally, DOE notes that job that is being provided with testing and consent of the employee was secured in transfers for the purposes of reporting to that the communication must be writing.’’ DOE believes that the site occupational medicine documented in the worker’s medical occupational medicine providers are department, remains the same record as specified in Appendix A very sensitive to informed consent regardless of whether the employee is section 8(g)(1)(ii). which causes them to explain and ask new or existing and means any change Two commenters (Exs. 15, 47) workers to sign consent for evaluations in job tasks, titles, exposures, and/or job proposed elimination of the provision in and examinations. DOE further notes description. proposed rule section 851.210(f)(5) that that workers have the right and option Appendix A section 8(g)(2)(ii) required medical test and result related to decline any portion of an specifies that periodic, hazard-based communication be documented in the examination, or all medical evaluations medical monitoring or qualification- medical chart with signatures of both or examinations. However, refusing based fitness for duty evaluations as the occupational health examiner and mandatory examinations may result in required by regulations and standards, worker. These commenters pointed out difficulties placing the worker or as recommended by the occupational that supplemental proposed rule section appropriately in a job. medicine services provider, will be 851.210(f)(4) required communication of Appendix A section 8(g)(2)(i) requires provided at the required frequency. DOE the purpose and nature of the tests and that at the time of employment entrance did not receive comments on this suggested this, along with inclusion of or transfer to a job with new functions proposed provision during the public language such as ‘‘and individual and hazards, a medical placement comment period. results discussed with the employee,’’ evaluation of the individual’s general Appendix A section 8(g)(2)(iii) could be sufficient to meet the health and physical and psychological specifies use of diagnostic examinations requirement of proposed rule section capacity to perform work be conducted to evaluate employee’s injuries and 851.210(f)(5). One of the commenters to establish a baseline record of physical illnesses in order to determine work- (Ex. 15) asserted that the requirement condition and assure fitness for duty. relatedness, the applicability of medical was ‘‘far in excess of the community One commenter (Ex. 54) sought restrictions, and referral for definitive standard for the practice of medicine for clarification of the criteria for care, as appropriate. One commenter routine medical tests.’’ ‘‘emotional capacity’’ as referred to in (Ex. 47) favored either eliminating the Conversely, in order to further supplemental proposed rule section phrase ‘‘degree of disability’’ or strengthen the requirement in proposed 851.210(f). The commenter expressed substituting the phrase with ‘‘apply rule section 851.210(f)(5) and prevent concern that this requirement would be medical restrictions as appropriate.’’ post-examination changes to employee interpreted to mean that the DOE has eliminated the phrase ‘‘degree medical records without the employee’s determination of emotional capacity of disability’’ in the corresponding final consent, one commenter (Ex. 62) was left entirely to the SOMD with no rule Appendix A section 8(g)(iii). favored adding the language, apparent limitations or requirements. In Additionally DOE notes that the ‘‘modifications to an employee’s response to this concern, DOE has medical restriction provision has been medical chart cannot be made without replaced the term ‘‘emotional capacity’’ greatly modified in the final rule section the concurrence and signature of the with ‘‘psychological capacity’’ in the Appendix A section 8(h). employee.’’ DOE believes that the site final rule. DOE further notes that the Another commenter (Ex. 25) occupational medicine records are final rule makes allowance for the expressed concern that supplemental created and maintained, updated, and involvement of licensed, registered or proposed rule section 851.210(f)(6)(iii), reviewed in accordance with accepted certified psychologists in the would pose a challenge for the SOMD medical practice. DOE regulations and occupational medicine service process. to win the trust of workers in the medical professionals have explicit Thus DOE believes that such determination of the work-relatedness of guidelines on how to modify records so professionals have the requisite training disease and degree of disability, given that changes are tracked. Additionally, and knowledge to apply clinically that the occupational medicine DOE notes that employees may officially established criteria in the determination physician worked for the contractor (or request a copy of their record. After of an individual’s psychological multiple contractors). Additionally the cprice-sewell on PROD1PC66 with RULES2 reviewing the record, if the employee capacity. commenter expressed the opinion that wishes to provide a dated, signed, One commenter (Ex. 47) suggested the determination of work-relatedness written statement about an element term ‘‘medical placement examination’’ would increase the potential for worker within the record, they may do so. The in supplemental proposed rule section compensation claims and associated attachment from the employee will 851.210(f)(6)(i) be replaced with the liability, which ‘‘contractors would remain with the record in accordance term ‘‘medical placement evaluation.’’ rather avoid regardless of the merits of VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00064 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6921 the claim.’’ DOE believes that a basic protecting the worker, co-workers, and facilitate their rehabilitation and safe tenet of occupational medicine is to the company. return to work and to minimize lost assist workers and management in the Many commenters (Exs. 16, 25, 36, time and its associated costs. Two determination of the work-relatedness of 42) sought additional clarification on commenters (Exs. 30, 62) expressed illness and injury. Hence trained and whether return to work health concern that the requirement in certified occupational health providers evaluations were merely for absences supplemental proposed rule section are expected to retain professional due to injuries or illnesses, or some 851.210(g)(2), for the occupational impartiality and decide claims on the other unique situation (e.g., return from medicine program to ‘‘monitor ill and basis of their merits. Furthermore to active military duty) that were deemed injured workers to facilitate their minimize the potential for any appropriate by the SOMD, and not for rehabilitation and safe return to work subjectivity in medical determinations, return to work from vacations or other and to minimize lost time and its DOE has eliminated use of the phrase non-medically related absences. DOE associated costs,’’ encourages the SOMD ‘‘degree of disability’’ in the final rule believes that the corresponding final to return workers to the job before they Appendix A section 8(g)(iii). rule Appendix A section 8(g)(2)(iv) are well. The commenters asserted that Appendix A section 8(g)(2)(iv) adequately clarifies that return to work this placed the SOMD in the posture of specifies that after a work-related injury evaluations are necessary only when an serving two masters: the patient’s health or illness or an absence due to any employee has been absent for illness or and well being, and the economic injury or illness lasting 5 or more injury for 5 or more days. interests of the contractor. As previously consecutive workdays (or an equivalent Appendix A section 8(g)(2)(v) discussed in this section, occupational time period for those individuals on an provides that at the time of separation medicine providers are bound by alternative work schedule), a return to from employment, individuals shall be medical and legal obligations to put the work evaluation will determine the offered a general health evaluation to patient’s interest first and make individual’s physical and psychological establish a record of physical condition. recommendations to the contractor capacity to perform work and return to DOE received many comments with about fitness-for-duty and/or return-to- duty. One commenter (Ex. 54) suggested respect to the need for termination work status without breaching that supplemental proposed rule section exams. One commenter (Ex. 49) confidence of a non-occupational 851.210(f)(6)(iv) clarify that contract suggested that termination exams under diagnosis or condition without the language took precedence over SOMD supplemental proposed rule section patient’s permission. For example, the determinations. The commenter 851.210(f)(6)(v) only be required for occupational medicine provider can proposed including a requirement for a ‘‘employees enrolled in HAZWOPER or state that the worker has a condition for third party medical review (at the laser surveillance programs at the time which restrictions are recommended, expense of the contractor) in the event of separation.’’ DOE disagrees and and state specifically what those of a disagreement between the SOMD believes it is imperative that termination restrictions are. Restrictions are based and a worker’s own physician. DOE exams and evaluations be conducted on on the best interest of the physical and believes that the occupational medicine all workers in order to minimize the mental health and well-being of the provider’s recommendation does not liability impact of work-related injury patient/worker and on the safety and supplant contractual requirements and illness claims. Another commenter well-being of co-workers. When a regarding return to work (RTW). The (Ex. 25) sought clarification of why a contractor has no work for which that occupational service provider is termination exam was required. DOE individual is qualified at that time, then responsible for advising management on notes that termination examinations are the patient/worker must abide by the the medically appropriate reinstatement not fitness-for-duty; rather they are contractor’s employment policies and of a worker following an injury or examinations to document the health benefits that are available. illness based on input from the worker’s status and known exposures of the Appendix A section 8(h)(1) the personal physician and other sources. employees when they leave occupational medicine provider to place One commenter (Ex. 15) expressed employment at DOE. an individual under medical restrictions concern that the requirement for return Several commenters (Ex. 16, 36, 42) when health evaluations indicate the to work evaluations infringed individual noted that contractors did not have the worker should not perform certain job privacy rights with respect to vacation ability to require a terminating tasks. Furthermore, the occupational absence and would result in additional individual to participate in the medicine provider must notify the costs to the contractor. The commenter evaluations required by supplemental worker and contractor management proposed that for non-work related proposed rule section 851.210(f)(6)(v), when employee work restrictions are illness (such as surgery), it was more which specifies that a health evaluation imposed or removed. appropriate and cost effective to have is required for individuals at the time of Two commenters (Exs. 30, 54) noted the worker’s personal surgeon make the separation from employment. These that supplemental proposed rule section determination regarding fitness for commenters suggested that the rule be 851.210(g) requires the SOMD to place return to duty. Another commenter (Ex. modified to require contractors to only an individual under medical restrictions 48) favored elimination of return to offer a medical evaluation at when health evaluations indicate that work evaluations after absences due to termination. DOE agrees with the the worker should not perform certain illnesses or injury for 5 or more days. commenters suggestion and has job tasks. However, the commenters DOE notes that the occupational modified the language in final rule pointed out that the proposed rule has medical providers use the written Appendix A section 8(g)(2)(v) to only no requirement for medical removal recommendations regarding restrictions require contractors to offer individuals, protection (i.e., no loss of pay if that are provided by private physicians. at the time of separation from transferred to a job which pays less or cprice-sewell on PROD1PC66 with RULES2 However, occupational medicine employment, a general health inability to work due to a work related providers must conduct return-to-work evaluation to establish a record of problem as is the case with OSHA’s fitness-for-duty evaluations and make physical condition. Lead standard). The commenters determinations about whether the Appendix A section 8(h) requires the suggested that such a provision for employee can safely return to their occupational medicine provider to medical removal protection should be assigned job tasks in the interest of monitor ill and injured workers to included in the rule, whether required VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00065 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 6922 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations by an OSHA regulation or not. DOE Appendix A section 8(k) establishes by the SOMD.’’ DOE believes that such believes that medical removal that the occupational medicine services guidelines put forth by OSHA and CDC protection is an inappropriate remedy in provider must review and approve the qualify as common industry knowledge this instance. The primary purpose of medical and behavioral aspects of and that qualified (licensed/registered/ medical removal protection is to reduce employee counseling and health certified) occupational medicine or eliminate the potential for exposure promotional programs. One commenter providers as required in Appendix A to toxic materials in workers who (Ex. 48) favored eliminating the section(c) are aware of such guidelines. display evidence of overexposure to that requirement in proposed rule section Appendix A section 8(k)(5) requires material. Workers under medical 851.210(h) and replacing it with the that the occupational medicine services restriction may be protected by the language, ‘‘Occupational medical provider must develop and periodically Americans with Disability Act, Workers’ services and medical surveillance must review medical emergency response Compensation Programs, or other be provided to employees as required by procedures included in site emergency means. applicable OSHA regulations.’’ DOE and disaster preparedness plans. This Appendix A section 8(i) stipulates believes that limiting the services to provision further stipulates that medical that occupational medicine provider’s only what is required by OSHA emergency responses must be integrated physicians and medical staff must, on a regulations places undue constraints on with nearby community emergency and timely basis, communicate results of the occupation medicine program. The disaster plans. health evaluations to management and services listed constitute many of the Two commenters (Exs. 5, 16) to safety and health protection elements of a comprehensive expressed concerns with respect to specialists in order to facilitate the occupation medicine program. emergency and disaster preparedness mitigation of worksite hazards. Three Appendix A section 8(k)(1) specifies plans and how they integrate within the commenters (Exs. 47, 54, 55) sought that contractor-sponsored or contractor- occupational medicine requirements clarification of the requirement in supported EAPs must be reviewed and under proposed rule section proposed rule section 851.210(g)(3) for approved by the occupational medicine 851.210(i)(1). One commenter (Ex. 16) the ‘‘communication of results of health services provider. One commenter (Ex. suggested the language be modified to trend evaluations to management and 5) suggested that DOE should offer require ‘‘the SOMD to review and site worker health protection alternatives for the SOMD review, such approve the medical portion of the site professionals.’’ One of the commenters as review by the medical director of the emergency and disaster preparedness (Ex. 47) suggested that only ‘‘identified’’ EAP programs, because many plans and procedures.’’ Another health trends should be included under companies use corporate sponsored commenter (Ex. 5) suggested that this provision, while other commenters programs that are not reviewed by the contrary to the requirements of (Exs. 54, 55) suggested the inclusion of SOMD. DOE believes that the proposed rule sections 851.210(i)(1) and worker health and safety committees occupational medicine provider must (2), in small communities, the SOMD and worker representatives as recipients review and approve all services offered may review the site emergency and for the health evaluation trend data. to employees because the occupational disaster preparedness plans, but the DOE has eliminated the term ‘‘trend’’ medicine provider has overall development, and integration of such and only requires ‘‘communication of responsibility for ensuring that plans with community plans is done by results of health evaluations to employees are offered appropriate and the management and operating management and health protection comprehensive services. emergency management or occupational specialists’’ in the corresponding final Appendix A section 8(k)(2) specifies health staff, not by the local physician. rule Appendix A section 8(i). DOE that contractor-sponsored or contractor- With reference to supplemental further notes that worker safety and supported alcohol and other substance proposed sections 851.210(i)(1) and (2), health committees and worker abuse rehabilitation programs must be one commenter (Ex. 5) raised the issue representatives can obtain trend data on reviewed and approved by the that previous DOE guidance on illness and injury and trend data on occupational medicine services community plan integration specifically safety from the Office of Environment, provider. referenced mass casualties. However as Safety and Health’s offices of Appendix A section 8(k)(3) specifies written, the proposed rule did not Epidemiology and Health Surveillance, that contractor-sponsored or contractor- include any requirement for mass Performance and Assessment, supported wellness programs must be casualty planning. DOE notes that the respectively. reviewed and approved by the DOE order on emergency preparedness Appendix A section 8(j) specifies that occupational medicine services addresses mass casualties. Additionally the occupational medicine provider provider. DOE did not receive occupational medicine programs are must include measures to identify and comments on this proposed provision required to be integrated into the manage the principal preventable causes during the public comment period. Emergency Plans at sites. of premature morbidity and mortality Additionally, Appendix A section affecting worker health and 8(k)(4) of the final rule specifies that the 9. Motor Vehicle Safety productivity. In particular, Appendix A occupational medicine services provider Appendix A section 9 of the final rule section 8(j)(1) requires the occupational must review the medical aspects of (formerly supplemental notice of medicine provider to include programs immunization programs, blood-borne proposed rulemaking section 851.206), to prevent and manage these causes of pathogens programs, and bio-hazardous provides the motor vehicle safety morbidity when evaluations waste programs to evaluate their program requirements. This section demonstrate their cost effectiveness. conformance to applicable guidelines. adopts the motor vehicle safety Additionally, Appendix A section 8(j)(2) One commenter (Ex. 16) recommended provisions in DOE Order 440.1A. These cprice-sewell on PROD1PC66 with RULES2 requires contractors to make available to that proposed rule section 851.210(h)(4) provisions allow continued contractor the occupational medicine provider be modified to include the language, flexibility in determining the most appropriate access to information from ‘‘The SOMD must review the medical efficient methods for achieving health, disability, and other insurance aspects of * * * programs to evaluate compliance and targeting local accident plans (de-identified as necessary) in their conformance to applicable and injury trends based on local driving order to facilitate this process. guidelines, as determined appropriate and operating conditions. The motor VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00066 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6923 vehicle safety requirements of this training for vehicle operators; (4) section would infringe on the employee- section apply to operation of industrial vehicle maintenance and inspection; (5) employer relationship and go beyond equipment powered by an electric motor traffic control and signage; (6) speed commercial and regulatory practice. or an internal combustion engine, limits and other traffic rules; (7) public Again, DOE notes that the motor vehicle including, fork trucks, tractors, and awareness programs to promote safe provisions of this final rule are taken platform lift trucks and similar driving; (8) and enforcement provisions. directly from DOE Order 440.1A and equipment. Appendix A section 9(a) of Two commenters (Ex. 39, 40) have been applicable to contractor the final rule requires contractors to criticized the corresponding provisions operations for almost ten years. DOE implement a motor vehicle safety of the supplemental proposed rule, expects that contractors will use their program to protect the safety and health specifically sections 851.206(c)(1) existing motor vehicle safety of all drivers and passengers in through (3) on the ground that they enforcement provisions developed in Government-owned or -leased motor duplicate the training, testing and response to DOE Order 440.1A to vehicles and powered industrial licensing requirements of local and state comply with the enforcement provisions equipment (i.e., fork trucks, tractors, government agencies that regulate motor required under Appendix A section platform lift trucks, and other similar vehicles. DOE disagrees with the 9(c)(8) of the final rule. specialized equipment powered by an commenters and has retained the electric motor or an internal combustion requirements in the final rule. 10. Electrical Safety engine). Several commenters (Exs. 16, 29, 36, Three commenters (Ex. 17, 18, 53) Two commenters (Exs. 27, 45) 48) objected to the use of the word recommended that DOE add a new rule asserted that the proposed requirements ‘‘incentive’’ in supplemental proposed section related to electrical safety and which are in Appendix A section 9 of rule section 851.206(c)(7), which stated worker protection from electrical the final rule, appear to be a that awareness campaigns and incentive hazards. One of these commenters (Ex. summarization of existing DOE Orders programs to encourage safe driving must 53) recommended that the proposed and would likely require extensive be part of the motor vehicle safety Electrical Safety section include NFPA review and analysis for contractors to program. Their rationale was that the 70E (Standard for Electrical Safety in come into compliance with the rule word incentive implies monetary the Workplace). Another (Ex. 29) requirements. Since motor vehicle reward, and it would be inappropriate questioned if DOE plans to publish an requirements in the final rule are the to include this type of requirement in a electrical safety implementation guide. same as the requirements in DOE Order regulation that subjects contractors to The commenter believed that this would 440.1A, DOE believes that contractors civil penalty for violations. DOE be helpful for understanding what DOE are already in compliance with DOE disagrees and notes that contractors considers an ‘‘acceptable approach’’ for Order 440.1A should require minimal, if have been subject to the enforcement ‘‘development of an integrated set of any effort to implement the rule (through contract mechanisms) of this hazard controls.’’ In response to these requirements. exact requirement through the comments, DOE added Appendix A Another commenter (Ex. 48) argued provisions of DOE Order 440.1A for that the requirements in Appendix A close to ten years. DOE is unaware of section 10 to the final rule, which section 9 should be deleted because any difficulties associated with either requires contractors to implement a motor vehicle safety is adequately compliance with or enforcement of this comprehensive electrical safety program covered by OSHA regulation and state provision. DOE’s intent with the use of that is appropriate for the activities at laws, including the requirements for the term ‘‘incentives programs’’ as their site. This program must meet the training and qualification of powered clarified in Appendix A section 9(c)(7) applicable electrical safety codes and industrial trucks. DOE disagrees with of the final rule is to refer to any standards referenced in section 851.23 the commenter and has retained the program developed by the contractor to of the rule. As requested, the section provisions for motor vehicle safety. encourage safe driving among its 851.23 includes NFPA 70 and 70E Another commenter (Ex. 40) workforce. This provision provides among the mandatory electrical safety contended that the requirement that contractors the latitude to determine the codes and standards. DOE notes its each contractor implement a motor types of incentives programs they feel intent to publish appropriate guidance vehicle safety program would be are appropriate and effective. The documents to assist contractors in their problematic in cases where many provision does not limit the contractor compliance efforts. contractors share the same space and to or restrict them from the use of 11. Nanotechnology Safety—Reserved traffic patterns. DOE notes, each monetary incentives. contractor should coordinate with the Another set of commenters (Exs. 20, The Department has chosen to reserve other contractors to ensure that there are 36, 39) expressed several concerns about this section since policy and procedures clear roles, responsibilities and the supplemental proposal, included in for nanotechnology safety are currently procedures that will ensure the safety section 851.206(c)(8) to require being developed. Once these policies and health of workers at multi- enforcement provisions to the motor and procedures have been approved, the contractor workplaces. vehicle safety program. The rule will be amended to include them Appendix A section 9(b) mandates applicability of the enforcement through a rulemaking consistent with that the contractor must tailor the motor provisions to DOE sites with multiple the Administrative Procedure Act. vehicle safety program to the individual on-site entities was of concern to one 12. Workplace Violence Prevention— DOE site or facility, based on an commenter (Ex. 39). A second Reserved analysis of the needs of that particular commenter (Ex. 20) questioned how the site or facility. Appendix A sections enforcement provisions would be The Department has chosen to reserve cprice-sewell on PROD1PC66 with RULES2 9(c)(1) through (8), specify the different implemented (i.e., whether the DOE this section since the policy and elements that must be addressed by the police, a Federal magistrate, or the procedures for workplace violence contractor’s motor vehicle safety contractor’s staff would be authorized to prevention are currently being program. Specifically, these elements enforce the program provisions). A third developed. Once these policies and include: (1) Vehicle licensing; (2) use of commenter (Ex. 36) contended that the procedures have been approved, the seat belts and other safety devices; (3) enforcement provisions in the proposed rule will be amended to include them VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00067 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 6924 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations through a rulemaking consistent with enforcement process. Appendix B weakness in the contractor’s worker the Administrative Procedures Act. establishes that necessary framework for safety and health program. One the worker safety and health commenter (Ex. 29) was concerned Appendix B—General Statement of enforcement program. since DOE facility representatives are Enforcement Policy The policy is intended to achieve the integrated into site operations and As a guidance document for enforcing dual purposes of promoting proactive participate in collaborative assessments. this rule, the Department has issued a behavior on the part of DOE contractors This commenter argued that, as a result, general statement of enforcement policy to improve worker safety and health DOE may learn of violations at the same as Appendix B. The policy sets forth the performance and deterring contractors time or before the contractor. The general framework which DOE will from violating the proposed regulations. commenter felt that DOE discovery in follow to ensure compliance with the The policy will encourage DOE such cases should not be held against regulations and to issue enforcement contractors to self-identify, report and the contractor when determining actions and exercise civil penalty correct worker safety and health mitigation. As noted in the final rule, authority. The policy is not binding and noncompliances and will provide Appendix B section IX(b)(9)(a)(1) refers does not create any legally enforceable adjustment factors to escalate or to violations identified by a DOE requirements pursuant to this part. It mitigate civil penalties on the basis of independent assessment or other formal only provides guidance as to how DOE the nature of the violation and the program efforts. generally expects to seek compliance behavior of the contractor. Several Another commenter (Ex. 21) with the proposed regulations and to commenters (Exs. 5, 11, 16, 28, 29, 31, questioned use of the term awareness in deal with any violations of the proposed 35, 36, 37, 43, 45, 47, 49, 51) took issue Appendix B section IX(2)(f), and argued regulations. One commenter (Ex. 47) with the treatment of DOE Voluntary that awareness would be difficult to pointed out that the supplemental Protection Program (DOE VPP) sites in prove on a large worksite, with multiple proposal made references to reasonable that special provisions were not made contractors and informal resolution of quality assurance measures and also for their exemplary worker safety and noncompliances on the spot, without suggested that contractor activities health programs, such as exemption documentation. Generally, contractors before the effective date of the rule from programmed inspections and should be aware of the hazards in their should not be enforceable. DOE notes special mitigating factors during covered workplace. Only in rare cases, that the statute does not allow a enforcement. DOE disagrees and would DOE accept that the contractor contactor to be penalized under both believes that the performance of DOE was unaware of hazards. DOE will sections (234A and 234C) of the law for VPP sites under this rule will validate consider the contactor’s self-assessment the same violation. Also, the statute the strength of their programs and that program and the extent of management does not provide for grandfathering they will stand out as examples of involvement in making such activities of the contractor before the excellent worker safety and health determinations. effective date of the rule. Therefore, programs within DOE. DOE VPP sites Several commenters (Exs. 15, 29, 31) contractors must be in compliance on will be subject to all of the provisions took exception to applying enforcement the effective date of the rule. of this rule. In fact, DOE VPP sites provisions of the rule to subcontractors Several commenters (Exs. 13, 29, 43, should have the best worker safety and and suppliers, citing privity of contract, 58) suggested that terms and definitions health programs and be in compliance additional management burden, be expanded or clarified in this section with the worker safety and health financial implications, and other of the final rule. DOE feels that most of requirements of this rule. DOE would disincentives for working with DOE. these terms are commonly understood not expect that these sites would need Contract privity is not an issue because and need not be defined in the rule. The to report many Noncompliance Tracking DOE, through the Atomic Energy Act, rule incorporates commonly used and System (NTS)-reportable violations. The has statutory authority to regulate health understood terms from both the nuclear Office of Price-Anderson Enforcement, and safety matters of workers on the safety enforcement program and worker however, will respond as necessary to DOE sites covered under this rule. In safety and health programs in both DOE significant violations if and when they fact, since DOE indemnifies and the private sector. DOE clarifies in do occur and develop appropriate subcontractors and suppliers against a final rule section 851.3(b) that terms programmed inspection strategies. nuclear incident under the statute, it undefined in this part that are defined One commenter (Ex. 39) took does not receive further privity in any in the Atomic Energy Act of 1954 must exception with the statement that event. DOE will exercise this authority have the same meaning as under that contractors will almost always discover through this final rule and need not Act. DOE agrees that all of the different noncompliances before DOE. The have a direct contractual relationship terms used to refer to violations and commenter noted that DOE with subcontractors. This will not noncompliances in the supplemental representatives are often co-located alleviate contractors of their proposal should be deleted. onsite with contractors and could responsibility to flow contractual Three commenters (Exs. 28, 45, 51) identify violations before the contractor. requirements down to their supported the position that Appendix B DOE disagrees and maintains that subcontractors. The statute mandates should be deleted from the rule and contractors are in the best position to indemnification and the statutory issued as separate guidance. DOE identify noncompliances. Since requirements apply without respect to disagrees. The rule establishes the contractors are required to identify and any particular contract. Contractors worker safety and health requirements evaluate hazards in the workplace, and remain contractually responsible for the for contractors. If contractors fully have managers, supervisors and activities of their subcontractors. DOE comply with requirements of this rule, employees operating in the workplace also plans to issue an enforcement cprice-sewell on PROD1PC66 with RULES2 then there will be no enforcement on a routine basis, they should be the guidance supplement (EGS) similar to actions taken against contractors. If, first to identify noncompliances. the Occupational Safety and Health however, a contractor does not comply, Contractors should not rely on DOE to Administration (OSHA)’s multi- it is necessary to delineate enforcement identify noncompliances. If DOE finds employer worksite policy, which policies, as is done in Appendix B, so noncompliances rather than the explains how enforcement will be that contractors can understand the contractor, then this may indicate a viewed with respect to multiple VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00068 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6925 contractors at a particular covered discretion when a contractor self-reports would be considered severity level II. workplace. a violation, another commenter (Ex. 47) As a result, the supplemental proposal Appendix B incorporates the basic recommended changing ‘‘may’’ to language is retained in the final rule. outlines of DOE’s well-established ‘‘shall.’’ DOE disagrees in that by One commenter (Ex. 15) insisted that nuclear safety enforcement program in definition, discretion cannot be DOE apply the maximum civil penalty 10 CFR Part 820. One commenter (Ex. exercised without restraint by DOE if only to cases of willfulness, death, 37) is concerned that DOE will not DOE is constrained to act in only one serious injury, patterns of systemic consider effective OSHA enforcement way. violations, flagrant violations or policies and procedures, such as their The enforcement policy uses several repeated poor performance and apply letters of interpretation, rulings of law, enforcement terms and includes the OSHA penalty structure to approach to multi-employer sites and mitigation factors similar to those in 10 violations classified as serious, other- the General Duty Clause. The Office of CFR part 820. The severity levels and than-serious, and de minimis. DOE Price-Anderson Enforcement has adjustment factors in the policy disagrees, the penalty structure was maintained copies of all enforcement incorporate concepts OSHA uses in its established by Public Law. The Director letters, enforcement actions, program enforcement program including whether may use discretion to reach final review reports and other data related to a violation is serious, other-than- penalty amounts. Appendix B section nuclear safety enforcement on its web serious, willful, repeat, or de minimis. IX(b)(3) addresses the adjustment factors site, which is available to participants in Specifically, the policy as clarified in that the Director will consider when the Price-Anderson Amendments Act Appendix B section VI of the final rule arriving at a penalty amount. (PAAA) program. Over the past 10 years provides guidance on the treatment of Two commenters (Exs. 45, 51) also the program has been administered as violations based on severity levels. suggested adding definitions to required by the Price-Anderson Section VI(b)(1) establishes that a supplemental proposed section 851.3 Amendments Act. Legal precedents severity level I violation is a serious for ‘‘severity levels I and II.’’ DOE contained therein will be relevant. In a violation, which would involve the disagrees, however, since the terms are similar manner, on the effective date of potential that death or serious physical adequately defined in this appendix. this rule, DOE will begin to post all harm could result from a condition in a Two other commenters (Exs. 38, 57) relevant enforcement letters, workplace, or from one or more requested that DOE more clearly enforcement actions, program review practices, means, methods, operations, delineate between severity level II and reports, and other data related to worker or processes used in connection with a de minimis violations in the rule safety and health. Interpretations to the workplace. A severity level I violation is arguing that under the severity OSHA standards issued by OSHA will subject to a base civil penalty of up to classifications in the supplemental be considered valid unless directed 100% of the maximum base civil proposed rule, a single improperly otherwise by DOE General Counsel. In penalty or $70,000. placed ladder could be consider a addition to relying on DOE’s proven Section VI(b)(2) establishes that a severity level II hazard subject to a nuclear safety enforcement principles severity level II violation is an other- $35,000 penalty. DOE disagrees that a and operating procedures, the Office of than-serious violation, which would change is needed. The commenters are Price-Anderson Enforcement will involve a potential that the most serious correct that an improperly positioned incorporate relevant OSHA enforcement injury or illness that might result from ladder could be considered a severity procedures into an Office of Price- a hazardous condition cannot level II hazard if the condition had a Anderson Enforcement Worker Safety reasonably be predicted to cause death direct relationship to employee safety and Health Enforcement Manual. or serious physical harm to exposed and health but could not reasonably be Another commenter (Ex. 59) proposed employees, but does have a direct predicted to cause death or serious that a DOE-approved worker safety and relationship to their safety and health. A physical harm. If, on the other hand, the health program constitute an accepted severity level II violation is subject to a specific condition had no direct or interpretation of the rule. DOE holds base civil penalty up to 50% of the immediate relationship to safety or that it does not represent an maximum base civil penalty or $35,000. health, the hazard would be considered interpretation of the rule. As established Under section VI(b)(3) a de minimis de minimis. DOE also points out here in the final rule, a binding interpretive violation is defined as a violation that that, under certain circumstances, an ruling can only be issued through the has no direct or immediate relationship improperly positioned or secured ladder formal process outlined in section to safety or health and thus, will not be could easily present a significant fall 851.7. In addition, an approved program the subject of formal enforcement action hazard which could be considered a demonstrates an acceptable approach through the issuance of a Notice of severity level I hazard. Since the toward implementing the requirements Violation. probability that an injury or illness will of the rule. Several commenters took issue with occur has a bearing on the proposed The policy provides guidance on how DOE’s description of violation severity penalty, the definitions of severity level enforcement conferences will be in the corresponding sections of the I, II, or de minimis violations take conducted, how enforcement actions supplemental proposed rule. For likelihood or probability into account. will be conducted and when instance, four commenters (Exs. 15, 29, In determining the severity level of a enforcement letters will be issued. One 38, 57) favored using OSHA’s definition violation, the Office of Price-Anderson commenter (Ex. 31) suggested that for severity level I since probability in Enforcement will consider the specific criteria be established for this rule was not precisely defined. DOE circumstances affecting each issuing or not issuing enforcement disagrees. The probability language in condition—employee exposure, letters and that enforcement letters the definition of severity level II (i.e., ‘‘a frequency of exposure, proximity to the cprice-sewell on PROD1PC66 with RULES2 should not be issued when a contractor hazardous condition that cannot hazard, level of worker experience, etc. has taken appropriate abatement action. reasonably be predicted to cause death With respect to fire protection, one DOE believes that such detailed criteria or serious physical harm’’) clearly commenter (Ex. 61) stated that due to would unduly restrict the flexibility encompasses hazards that present only legacy issues there will be numerous de needed in the enforcement program. a remote possibility of death or serious minimis violations of National Fire With respect to the Director’s exercising physical harm, thus, such hazards Protection Association (NFPA) VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00069 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 6926 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations standards. The commenters questioned adjustment factor in determining under the Conditional Payment of Fee whether DOE intends for contractors to appropriate penalty amounts. clause. document and correct these de minimis Two commenter (Exs. 36, 47) took Regarding the factor of ability of DOE violations and also stated that most of issues with Appendix A section VI(g) contractors to pay civil penalties, the the code deviations would address which provided special considerations policy provides in Appendix B section property protection rather than worker for facility-related legacy hazards in IX(b)(2) that it is not DOE’s intention protection. In response, DOE notes that determining severity levels. One that the economic impact of a civil the list of NFPA standards in the final commenter (Ex. 47) stated that this penalty would put a DOE contractor out rule corresponds to those already listed section of the supplemental proposed of business. Several commenters (Exs. in DOE Order 440.1A and are rule did not address personnel-related 29, 42, 47) contend that since DOE significantly reduced from that included legacy issues such as asbestosis cases, controls funding, some accommodation in the supplemental proposal. Since hearing loss due to chronic noise would be appropriate in circumstances these NFPA standards have been in exposures, etc. The other commenter where the violation existed because place for many years under the DOE (Ex. 36) wondered whether facility- funding was not provided. They go on Order, DOE does not expect that there related and legacy hazards would be to state that contactors should not be will be numerous violations. In considered in determining the severity liable if they have notified the addition, DOE believes that deviations of the hazard or would be considered as contracting officer or COR that funds are from the NFPA standards that would a mitigating factor when determining needed to correct legacy hazards and qualify as de minimis violations would penalty amounts. DOE has considered infrastructure issues (Exs. 42, 47). The likely be addressed through the both of these comments as well as other Director will consider all relevant equivalency process built into the NFPA comments received related to legacy factors in determining an appropriate standards. hazards and believes that flexibility for enforcement method. However, the rule In addition to the clear definitions for legacy hazards is best addressed through makes no provision for violations that severity levels I and II and de minimis worker safety and health program have existed and have not been abated violations described in Appendix B requirements rather than through for lack of funding. It is the section VI of the final rule, the adjustments to the severity level of a responsibility of contractors to be in supplemental proposed rule Appendix violation. Accordingly, DOE has compliance on the effective date of this A sections VI(d) through (g) described removed this paragraph from Appendix rule. certain other factors that would be taken B section VI of the final rule. Under the The policy also provides that when a into account in determining the severity final rule, facility-closure issues must be contractor asserts that it cannot pay the of a violation. Several commenters took addressed under the contractor’s safety proposed penalty, DOE would evaluate issue with the consideration of these and health program (final rule section the relationship of affiliated entities to other factors arguing that the factors had 851.21(b)). DOE’s intent is that this the contractor such as parent no relationship to the actual severity of provision address facility-closure issues corporations. One commenter (Ex. 39) the hazard. For instance, two impacting worker safety and health. commenters (Exs. 29, 36) suggested that Appendix B section IX of the final stated that such an approach is ‘‘in severity levels be defined based on the rule clarifies that DOE may invoke the direct contravention of state laws that extent of potential harm that could provisions for reducing contract fees in establish C-corporations, S-corporations result from the violation (as discussed cases: (1) Involving especially egregious and limited liability companies (LLCs), in supplemental proposed Appendix A violations; (2) that indicate a general as well as other legal entities.’’ DOE sections VI(b) and (c)), not on the failure to perform under the contract appreciates these concerns. culpability of the contractor (as with respect to worker safety and Nevertheless, to ensure that responsible discussed in supplemental proposed health; or (3) where the DOE line parties such as an affiliate are held Appendix A sections VI(d) and (e)). management believes a violation responsible for the safety and health of DOE agrees and has made appropriate requires swift enforcement and workers, and to maintain consistency changes in the final rule. Culpability corrective action. Where DOE uses with the duties and responsibilities set will be considered in the assessment of environmental closure-type contracts, forth in 10 CFR part 820, DOE has adjustment factors when determining an some of short duration and/or where fee determined that it is necessary to appropriate level of penalty. payments are scheduled only after continue to reference affiliated entities. Accordingly, this paragraph is now significant accomplishment of work, Based on the adjustment factors included as an adjustment factor under DOE would initially pursue the use of relating to a noncompliance as Appendix B section IX(b)(3)(e) of the the fee reduction provision. Such described in Appendix B section final rule. violations would call into question a IX(b)(3), DOE could mitigate a civil Two other commenters (Exs. 29, 36) contractor’s commitment and ability to penalty from the statutory maximum of pointed out that, as defined in the achieve the fundamental obligation of $70,000 per violation per day. supplemental proposal, a severity level providing safe and healthy workplaces Mitigation factors used to reduce a civil II violation could be increased to for workers because of factors such as penalty include whether a DOE severity level I if a contractor failed to willfulness, repeated violations, death, contractor promptly identified and report a violation. These commenters serious injury, patterns of violations, reported a violation and took effective argued that this potential increase in flagrant DOE-identified violations, corrective actions. Factors used to severity level would make NTS repeated poor performance in areas of increase penalties (but not over the reporting mandatory. DOE agrees. concern, or serious breakdown in statutory maximum of $70,000) would Accordingly, this provision of the management controls. Because such include whether a violation is repeated cprice-sewell on PROD1PC66 with RULES2 supplemental proposal has been moved violations indicate a general failure to or involves willfulness, death, serious to Appendix B section IX(b)(3)(g) in the perform under the contract with respect physical harm, patterns of systemic final rule and is no longer included as to worker safety and health where both violations, flagrant DOE-identified a factor in determining severity. As in remedies are available and DOE elects to violations, repeated poor performance the nuclear safety enforcement program, use a reduction in fee, DOE would in an area of concern, or serious self-reporting is included as an expect to reduce fees substantially breakdowns in management controls. VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00070 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations 6927 One commenter (Ex. 13) suggested enforcement immunity for contractors indicates that DOE will evaluate the that the adjustment/mitigating factors who self-identify violations. Contractors relationship between a contractor and should include percentages as in 10 CFR are responsible for providing a affiliated entities in determining part 820. In response, DOE notes that in workplace free from recognized hazards, whether a contractor is able to pay a addition to establishing civil penalty not just identifying hazards. Hazard proposed penalty. DOE will generally percentages based on the severity of the identification is fundamental to the consider the scope and magnitude of the violation, 10 CFR part 820 establishes worker safety and health program. contract and associated fees and/or adjustment factor percentages for two Contractors are also responsible for profit, among other factors. It is not the mitigating factors: (1) Reduction of up to evaluating hazards, implementing intent of DOE to put a contractor out of 50% of civil penalty for self- interim protective measures and abating business by assessing large penalties. In identification and -reporting and (2) noncompliances. If contractors were rare circumstances, when the nature of increases or decreases of up to 50% of granted immunity for identifying a contractor’s violations and conduct are civil penalty for failure to take hazards, then inappropriate or especially egregious, then contract corrective action or for implementation inadequate contractor actions that termination may be more appropriate. In of prompt corrective action, normally follow hazard identification determining whether to refer a violation respectively. DOE has included similar would not be citable by the Office of to the appropriate DOE official percentage adjustments based on Price-Anderson Enforcement. The responsible for administering reductions severity of hazards and based on self- procedure retained in the final rule is in fee pursuant to the Conditional identification and -reporting in both the consistent with enforcement actions in Payment of Fee clause, the Director will supplemental proposal and in the final Appendix A of 10 CFR part 820. generally focus on the factors stated rule at Appendix B section IX(b)(4). Two commenters (Exs. 29, 36) argued above, such as willfulness, repeated DOE has not included a specific that the rule should provide for personal violations, death, serious injury, adjustment percentage based on the errors and employee willful misconduct patterns of systemic violations, flagrant promptness of corrective action for two beyond the control of the contractor, DOE-identified violations, repeated poor reasons: (1) DOE already ties corrective including a responsibility for employees performance in an area of concern, or action into the adjustment factor for to comply (similar to section 5(b) of the serious breakdown in management self-identification and -reporting in Occupational Safety and Health Act) controls. In cases where DOE may elect section IX(b)(4) which states, ‘‘ No and should mirror the ‘‘unpreventable between civil penalties and a contract consideration will be given to a employee misconduct’’ defense penalty, these kinds of factors may also reduction in penalty * * * if the recognized by OSHA. DOE agrees and lead DOE to consider a reduction in fee immediate actions necessary to restore added section 851.12(b) to the final rule if they raise doubts about a contractor’s compliance with the worker safety and to prohibit workers from taking actions overall performance or ability to health requirements are not taken;’’ and inconsistent with the rule. DOE will perform its contract with proper regard (2) DOE is limited under section 234 C develop enforcement guidance for the for worker safety and health. of the AEA to imposing a maximum rule that will include provisions similar to OSHA’s unpreventable employee One commenter (Ex. 25) favored a civil penalty of $70,000 per violation, penalty structure more in line with per day. In other words, DOE is misconduct defense outlined in OSHA’s Field Inspection Reference Manual. OSHA’s penalty structure. In prohibited under the statute from establishing the base civil penalties for Another commenter (Ex. 29) stated that applying a 50% increase to the base the types of violations in this policy, an isolated case of a willful violation by civil penalty of $70,000. DOE set the starting base amounts at an employee may be outside the control Several commenters (Exs. 31, 37, 45, of the contractor should be eliminated levels higher than the average OSHA 51) suggested mitigating penalties based from enforcement discretion, and penalty for several reasons. DOE’s on a contractor’s good faith, timely should not be considered as grounds for activities are conducted by large, corrective action, and general inspection classifying the violation as a ‘‘willful’’ experienced management and operating history, and providing a comprehensive violation. DOE agrees and intends for contractors and their subcontractors. list of positive mitigating factors in the policy regarding willful violations to Through the contractual relationships Appendix B. DOE discusses adjustment address a willful violation on the part of that DOE has with these entities, DOE factors (including positive mitigating contractor management. is in constant dialogue concerning the factors) in Appendix B, section IX(b)(3) As noted previously, when both management and operation of DOE’s of the final rule. This discussion remedies are available, DOE may sites and the performance of its touches upon many of the items listed consider a reduction in contract fees if governmental missions. DOE has the by the commenters, however, DOE a violation is especially egregious or authority to require these contractors to disagrees that a specific list of positive indicates a general failure to perform develop their own worker safety and mitigating factors should be included in under the contract with respect to health programs for DOE approval. the rule. DOE believes that such a list worker safety and health. One Moreover, DOE may unilaterally direct would be limiting and could actually commenter (Ex. 29) inquired as to contractors to include various stifle contractor innovation in whether mitigating factors would be provisions in their programs. Thus, the implementing their safety and health applied to contract penalties as they Director is in a position to enforce program. Mitigating factors, in different might be applied to civil penalties. In against these programs and can provide combinations, in different response, DOE notes that except where incentives for proactive compliance. circumstances, may affect the penalty a violation is considered a continuing The policy strongly encourages self- amount in different ways. Simply violation, and each day is considered a identification of violations, self- cprice-sewell on PROD1PC66 with RULES2 stated, DOE’s intent in applying positive separate day for the purposes of reporting, tracking systems, and mitigating factors is to recognize computing the penalty, the maximum corrective action programs. Moreover, proactive contractor safety and health contract penalty for each violation will DOE also has the authority and measures when considering appropriate not exceed $70,000. DOE further notes flexibility to coordinate and choose enforcement actions. The same that adjustment factors also apply to either a civil penalty or fee reduction commenter went on to support contract penalties. Section IX.2(e) remedy based on the enforcement policy VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00071 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 6928 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations and the fee reduction contract clause. noncompliances will be reported. The Reporting System (CAIRS). While future The proposed enforcement structure of EGS will also provide guidance on the enforcement guidance supplements this rule fits the DOE complex better reporting of noncompliances involving (EGSs) may identify what reportable than would a generic system as found in repeat, willful, programmatic, etc. information may be common to various OSHA’s enforcement programs. issues. reporting systems, it is generally left to Finally, as a tool for implementing the The NTS reporting scheme is similar the contractor to develop efficiencies in enforcement policy, Appendix B section to that already in use for nuclear safety its own operating environment. DOE IX(b)(5) clarifies that DOE intends to enforcement. One commenter (Ex. 29 will continue to look at economies of provide a computerized database system queried as to whether contractors would scale between its different reporting to allow contractors to voluntarily eventually move toward trending systems. Final rule section 851.26 now report worker safety and health deficiencies and programmatic requires reporting in accordance with noncompliances. DOE will enhance its deficiencies. Enforcement of the DOE Manual 231.1–1A, Environment, NTS, currently used for reporting of requirements of this rule will be Safety and Health Reporting Manual noncompliances of the DOE nuclear conducted from the Office of Price- (DOE M 231.1–1A), May 9, 2005. safety requirements, to permit its use for Anderson Enforcement. DOE notes that Section 851.20(a) establishes reporting noncompliances with this a well-developed contractor worker requirements for worker involvement in rule. DOE will develop appropriate safety and health program should reporting thresholds unique to worker involve trending and include an the safety and health program and safety and health to assure that the evaluation to determine whether 851.20(b) establishes worker rights to system will focus on issues with the identified noncompliances are of a access certain information, including greatest potential consequences for programmatic nature. This type of limited access to OSHA Form 300 and worker safety and health. evaluation would impact the 301 information. Another commenter Numerous commenters believed that contractor’s response to identified (Ex. 29) questioned what was meant in contractor reporting into NTS is the noncompliances. supplemental proposed Appendix A most important issue to resolve, and Several commenters (Exs. 10, 13, 16, section IX(b)(5)(c) by requiring that DOE that details about reporting thresholds, 29, 31, 37, 42, 49) took issue with have ‘‘access’’ to the contractor’s recording noncompliances, integration reporting noncompliances into NTS and tracking system. DOE’s intent with this of reporting with existing DOE reporting argued that this reporting would result statement is that if requested, requirements, among other issues, will in increased operating and management contractors would provide DOE have a bearing on contractor operations costs since these represent new information/data on noncompliances and their cost of doing business. All requirements. These commenters argued tracked locally. commenters (Exs. 5, 9, 15, 25, 28, 29, 30, that DOE should coordinate NTS with With respect to contractors relying on 31, 35, 38, 39, 42, 45, 47, 49, 51, 57) the Occurrence Reporting and direction given by DOE, and this stated that doing so places contractors Processing System (ORPS) to eliminate reliance contributing to a violation, one in a position of making ‘‘an admission duplication of reporting. One of the commenter (Ex. 47) stated that against interest,’’ that DOE should commenters (Ex. 37) recommended supplemental proposed Appendix A provide immunity for self-reported eliminating contractor reporting section IX(b)(8) should indicate that violations, and that reporting would altogether and suggested that DOE DOE ‘‘shall’’ (instead of ‘‘may’’) refrain have a negative economic impact. DOE should require local DOE reporting of disagrees and views contractor reporting violations that result in actual from issuing a notice of violation, or of noncompliances as responsible and endangerment to contractor employees. ‘‘shall’’ (instead of ‘‘may’’) mitigate, in the best interest of the contractor, DOE disagrees with the commenter and either partially or entirely, any proposed since up to 50 percent mitigation of the believes that contractors are in the best civil penalty when DOE has a base penalty may be granted for self- position to identify noncompliances in contributing role according to reporting. While contractors should their covered workplaces, not local DOE provisions in the rule. DOE disagrees. track all their noncompliances locally, officials. In addition, local DOE The word may, instead of shall, gives only a subset would be reported into representatives are not part of the the Director the discretion that is NTS based on reasonable reporting enforcement program. Contractors needed. Whether or not a notice of thresholds that will be established in a operating under the requirements of violation is issued depends on the future enforcement guidance DOE Order 440.1A are responsible for nature of the direction given by DOE to supplement (EGS). DOE anticipates that identifying, analyzing and abating the contractor, not simply that direction the NTS reporting thresholds will be noncompliances and reporting certain was given by DOE, and the extent to established such that only severity level noncompliances to ORPS and which a contractor relies on the I and certain severity level II Computerized Accident/Incident direction from DOE. LIST OF COMMENTERS Exhibit No. Company/organization 1 ........................ Robert Burger, CEM. 2 ........................ Richard Lewis. 3 ........................ Beverly Brookshire. 4 ........................ Robert P. Sierzputoowski. cprice-sewell on PROD1PC66 with RULES2 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. VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00072 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 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 Na- tional 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 Management and Budget, which has provide a clear legal standard for completed its review. affected conduct rather than a general A. Review Under Executive Order 12866 standard, and promote simplification B. Review Under Executive Order 12988 Today’s regulatory action has been and burden reduction. Section 3(b) determined to be a ‘‘significant With respect to the review of existing requires Federal agencies to make every regulatory action’’ under Executive regulations and the promulgation of reasonable effort to ensure that a Order 12866, ‘‘Regulatory Planning and new regulations, section 3(a) of regulation, among other things: clearly Review’’ (58 FR 51735, October 4, 1993), Executive Order 12988, ‘‘Civil Justice specifies the preemptive effect, if any, cprice-sewell on PROD1PC66 with RULES2 as amended by Executive Order 13258 Reform’’ (61 FR 4779, February 7, 1996) adequately defines key terms, and (67 FR 9385, February 26, 2002). imposes on Federal agencies the general addresses other important issues Accordingly, DOE submitted this final duty to adhere to the following affecting the clarity and general rule to the Office of Information and requirements: eliminate drafting errors draftsmanship under guidelines issued Regulatory Affairs of the Office of and needless ambiguity, write by the Attorney General. Section 3(c) of regulations to minimize litigation, Executive Order 12988 requires VerDate Aug<31>2005 13:58 Feb 08, 2006 Jkt 208001 PO 00000 Frm 00073 Fmt 4701 Sfmt 4700 E:\FR\FM\09FER2.SGM 09FER2 6930 Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / Rules and Regulations Executive agencies to review regulations health at DOE sites. The contractors the procedures implementing that Act, 5 in light of applicable standards in who manage and operate DOE facilities CFR 1320.1 et seq. section 3(a) and section 3(b) to are principally responsible for G. Review Under the National determine whether they are met or it is implementing the rule requirements. Environmental Policy Act unreasonable to meet one or more of DOE considered whether these them. DOE has completed the required contractors are ‘‘small businesses,’’ as DOE currently implements its broad review and determined that, to the that term is defined in the Regulatory authority to regulate worker safety and extent permitted by law, this final rule Flexibility Act’s (5 U.S.C. 601(3)). The health through internal DOE directives meets the relevant standards of Regulatory Flexibility Act’s definition incorporated into contracts to manage Executive Order 12988. incorporates the definition of ‘‘small and operate DOE facilities, contract C. Review Under Executive Order 13132 business concern’’ in the Small Business clauses and DOE regulations. This rule Act, which the Small Business implements the statutory mandate to Executive Order 13132 (64 FR 43255, Administration (SBA) has developed promulgate worker safety and health August 10, 1999), imposes certain through size standards in 13 CFR part regulations for DOE facilities that requirements on agencies formulating 121. The DOE contractors subject to this provide a level of protection for workers and implementing policies or rule exceed the SBA’s size standards for at DOE facilities that is substantially regulations that preempt State law or small businesses. In addition, DOE equivalent to the level of protection that have federalism implications. expects that any potential economic currently provided to such workers and Agencies are required to examine the impact of this rule on small businesses to provide procedures to ensure constitutional and statutory authority would be minimal because DOE sites compliance with the rule. DOE supporting any action that would limit perform work under contracts to DOE or anticipates that the contractor’s work the policymaking discretion of the the prime contractor at the site. DOE and safety programs required by this States and carefully assess the necessity contractors are reimbursed through their regulation is based on existing programs for such actions. contracts with DOE for the costs of and that this rule generally does not Today’s regulatory action has been complying with DOE safety and health require the development of a new determined not to be a ‘‘policy that has program requirements. They would not, program. DOE has therefore concluded federalism implications,’’ that is, it does therefore, be adversely impacted by the that promulgation of these regulations not have substantial direct effects on the requirements in this rule. For these falls into the class of actions that does states, on the relationship between the reasons, DOE certifies that today’s rule not individually or cumulatively have a national government and the states, nor does not have a significant economic significant impact on the human on the distribution of power and impact on a substantial number of small environment as set forth in the DOE responsibility among the various levels entities, and therefore, no regulatory regulations implementing the National of government under Executive Order flexibility analysis has been prepared. Environmental Policy Act of 1969 (42 13132 (64 FR 43255, August 10, 1999). See 68 FR 7990 at III.1. and III.1.c. U.S.C. 4321 et seq.). Specifically, the Accordingly, no ‘‘federalism summary (February 19, 2003).