10 cfr 851 final rule

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                                                                                                                                    February 9, 2006

                                                                                                                                    Part II

                                                                                                                                    Department of
                                                                                                                                    10 CFR Parts 850 and 851
                                                                                                                                    Chronic Beryllium Disease Prevention
                                                                                                                                    Program; Worker Safety and Health
                                                                                                                                    Program; Final Rule
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                                              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
                                                                                                      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
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                                                 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.

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                                                               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
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                                              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

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                                              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
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                                                 (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

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                                                                      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-
                                              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.
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                                              6.a. Accompany DOE worker protection personnel during workplace in-                                            .20(b)(5) Worker rights.
                                              6.b. Participate in activities provided for herein on official time; .............                             .20(b)(1) Worker rights.
                                              6.c. Express concerns related to worker protection; ................................                           .20(b)(7) Worker rights.

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

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                                                                      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—
                                                                            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.
                                              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-
                                              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,

                                                 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.
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                                              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.

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                                              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.
                                              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
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                                              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

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                                                               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
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                                              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

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                                              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
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                                              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

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                                              ‘‘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
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                                              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

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                                              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
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                                              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.

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                                                 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
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                                              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

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                                              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
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                                              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

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                                              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
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                                              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,

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                                              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
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                                              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

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                                              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
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                                                 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

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                                              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
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                                              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

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                                              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
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                                              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

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                                              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
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                                              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

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                                              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
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                                              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

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                                              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,
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                                              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

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                                              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
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                                              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

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                                              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
                                                                                                                                                            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
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                                              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

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                                                               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
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                                              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

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                                              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
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                                              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

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                                                               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
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                                              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

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                                              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
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                                              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

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                                              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
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                                              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

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                                              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
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                                              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

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                                                               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
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                                              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

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                                              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
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                                              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

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                                              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
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                                              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

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                                              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.
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                                              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

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                                                               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.
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                                              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

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                                              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
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                                              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

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                                                               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
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                                              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

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                                              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
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                                              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

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                                                               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
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                                              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

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                                              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
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                                              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

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                                                               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
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                                              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.

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                                                 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,
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                                              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

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                                              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
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                                              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

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                                              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
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                                              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

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                                              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
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                                              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

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                                              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
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                                              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

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                                              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,
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                                              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

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                                              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
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                                              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

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                                              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
                                              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
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                                              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

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                                              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
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                                              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

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                                                               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
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                                                 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.

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                                              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.
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                                              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,

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                                                               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,
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                                              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

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                                              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
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                                              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

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                                                               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
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                                                 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.

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                                              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).
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                                              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

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                                                               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
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                                              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

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                                              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
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                                              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

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                                                               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
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                                              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

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                                              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
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                                              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

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                                              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
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                                              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

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                                              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
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                                              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

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                                              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
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                                              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

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                                              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
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                                              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

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                                              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
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                                              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

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                                              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
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                                              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

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                                              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
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                                              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

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                                              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
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                                              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

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                                              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
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                                              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)

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                                              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
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                                              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.

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                                                 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-
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                                              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

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                                              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.
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                                              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.

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                                                                       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

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                                              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).                                  rule is covered under the categorical
                                              impact statement’’ was prepared or                                                                            exclusion in paragraph A6 of Appendix
                                              subjected to review under the Executive                 F. Review Under the Paperwork
                                                                                                      Reduction Act                                         A to Subpart D, 10 CFR Part 1021,
                                              Order by the Director of the Office of                                                                        which applies to the establishment of
                                              Management and Budget.                                                                                        procedural rulemakings. Accordingly,
                                                                                                        The information collection provisions
                                              D. Review Under Executive Order 13175                   of this rule are not substantially                    neither an environmental assessment
                                                 Under Executive Order 13175 (65 FR                   different from those contained in DOE                 nor an environmental impact statement
                                              67249, November 6, 2000) on                             contracts with DOE prime contractors                  is required.
                                              ‘‘Consultation and Coordination with                    covered by this rule and were                         H. Review Under the Unfunded
                                              Indian Tribal Governments,’’ DOE may                    previously approved by the Office of                  Mandates Reform Act
                                              not issue a discretionary rule that has                 Management and Budget (OMB) and
                                              ‘‘tribal implications’’ and imposes                     assigned OMB Control No. 1910–5103.                      Title II of the Unfunded Mandates
                                              substantial direct compliance costs on                  That