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Daily Rules, Proposed Rules, and Notices of the Federal Government

DEPARTMENT OF ENERGY

10 CFR Parts 850 and 851

[Docket No. EH-RM-04-WSHP]

RIN 1901-AA99

Chronic Beryllium Disease Prevention Program; Worker Safety and Health Program

AGENCY: Department of Energy
ACTION: Final rule.
SUMMARY: The Department of Energy (DOE) is today publishing a final rule to implement the statutory mandate of section 3173 of the Bob Stump National Defense Authorization Act (NDAA) for Fiscal Year 2003 to establish worker safety and health regulations to govern contractor activities at DOE sites. This program codifies and enhances the worker protection program in operation when the NDAA was enacted.
DATES: This rule is effective February 9, 2007. The incorporation by reference of certain publications listed in this rule is approved by the Director of the Federal Register as of February 9, 2007.
FOR FURTHER INFORMATION CONTACT: Jacqueline D. Rogers, U.S. Department of Energy, Office of Environment, Safety and Health, EH-52, 1000 Independence Avenue, SW., Washington, DC 20585, 202-586-4714.
SUPPLEMENTARY INFORMATION: I. Introduction II. Legal Authority and Relationship to Other Regulatory Programs A. Legal Authority B. Relationship to Other Regulatory Programs III. Overview of the Final Rule IV. Section-by-Section Discussion of Comments and Rule Provisions A. Subpart A—General Provisions B. Subpart B—Program Requirements C. Subpart C—Specific Program Requirements D. Subpart D—Variances E. Subpart E—Enforcement Process F. Appendix A—Worker Safety and Health Functional Areas G. Appendix B—General Statement of Enforcement Policy V. Procedural Review Requirements A. Review Under Executive Order 12866 B. Review Under Executive Order 12988 C. Review Under Executive Order 13132 D. Review Under Executive Order 13175 E. Review Under the Regulatory Flexibility Act F. Review Under the Paperwork Reduction Act G. Review Under the National Environmental Policy Act H. Review Under the Unfunded Mandates Reform Act I. Review Under Executive Order 13211 J. Review Under the Treasury and General Government Appropriations Act, 1999 K. Review Under the Treasury and General Government Appropriations Act, 2001 L. Congressional Notification VI. Approval of the Office of the Secretary Introduction

This final rule implements a worker safety and health program for the Department of Energy (DOE or the Department). This program establishes the framework for a worker protection program that will reduce or prevent occupational injuries, illnesses, and accidental losses by requiring DOE contractors to provide their employees' with safe and healthful workplaces. Also, the program establishes procedures for investigating whether a requirement has been violated, for determining the nature and extent of such violation, and for imposing an appropriate remedy.

In December 2002, Congress directed DOE to promulgate regulations on worker safety and health regulations to cover contractors with Price-Anderson indemnification agreements in their contracts. Specifically, section 3173 of the National Defense Authorization Act (NDAA) amended the Atomic Energy Act (AEA) to add section 234C (codified as 42 U.S.C. 2282c), which requires DOE to promulgate worker safety and health regulations that maintain “the level of protection currently provided to * * * workers.” See Public Law 107-314 (December 2, 2002). These regulations are to include flexibility to tailor implementation to reflect activities and hazards associated with a particular work environment; to take into account special circumstances for facilities permanently closed or demolished, or which title is expected to be transferred; and to achieve national security missions in an efficient and timely manner (42 U.S.C. 2282c(3)). Section 234C also makes a DOE contractor with such an indemnification agreement that violates these regulations subject to civil penalties similar to the authority Congress granted to DOE in 1988 with respect to civil penalties for violations of nuclear safety regulations. Section 234C also directs DOE to insert in such contracts a clause providing for reducing contractor fees and other payments if the contractor or a contractor employee violates any regulation promulgated under section 234C, while specifying that both sanctions may not be used for the same violation.

On December 8, 2003, DOE published a notice of proposed rulemaking (NOPR) to implement section 3173 of the NDAA (68 FR 68276). The December proposal was intended to codify existing DOE practices in order to ensure the worker safety and health regulations would give DOE workers a level of protection equivalent to that afforded them when section 3173 was enacted. Specifically, under the December proposal, a contractor would comply with either a set of requirements based primarily on the provisions of DOE Order 440.1A“Worker Protection Management for DOE Federal and Contractor Employees,”March 27, 1998 (the current DOE order on worker safety and health) or a tailored set of requirements approved by DOE. The contractor would implement these requirements pursuant to a worker safety and health program approved by DOE.

On January 8, 2004, DOE held a televideo conference to allow DOE employees, DOE contractors, contractor employees, and employee representatives to become familiar with the proposal. DOE held public hearings on the proposal in Washington, DC, on January 21, 2004, and in Golden, Colorado, via televideo on February 4, 2004. In addition to the oral comments at the public hearings, DOE received approximately 50 written comments on the December proposal.

After becoming aware that the Defense Nuclear Facilities Safety Board (DNFSB), which has safety oversight responsibility with regard to DOE nuclear facilities, had concerns about the proposed rule, DOE suspended the rulemaking by publishing a notice in theFederal Registeron February 27, 2004 (69 FR 9277). DOE stated in that notice that DOE would consult with the DNFSB in order to resolve its concerns, and also that it would consider views received from other stakeholders on its proposal.

As a result of its consultation with the DNFSB and consideration of other comments, DOE published a supplemental notice of proposed rulemaking (SNOPR) in theFederal Register(70 FR 3812) on January 26, 2005. The SNOPR proposed to (1) codify a minimum set of safety and health requirements with which contractors would have to comply; (2) establish a formal exemption process which would require approval by the Secretarial Officer with line management responsibility and which would provide significant involvement of the Assistant Secretary for Environment, Safety and Health; (3) delineate the role of the worker health and safety program and its relationship to integrated safety management; (4) set forth the general duties of contractors responsible for DOE workplaces; and (5) limit the scope of the regulations to contractor activities and DOE sites.

On March 23, 2005, DOE held a televideo forum to provide DOE contractors, contractor employees, and their representatives with the opportunity to ask questions and receive clarification on the provisions of the supplemental proposed rule. The public comment period for the supplemental proposal ended on April 26, 2005. During this period, DOE received 62 comment letters from private individuals, DOE contractors, other Federal agencies, and trade associations in response to the supplemental proposal. In addition, public hearings were held on March 29 and 30, 2005, in Washington, DC. Responding to a request from the Paper, Allied-Industrial, Chemical and Energy Workers International Union, DOE also held a public hearing on April 21, 2005, in Richland, Washington, via televideo.

DOE has carefully considered the comments and data from interested parties, and other information relevant to the subject of the rulemaking.

II. Legal Authority and Relationship to Other Regulatory Programs A. Legal Authority

DOE has broad authority to regulate worker safety and health with respect to its nuclear and nonnuclear functions pursuant to the Atomic Energy Act of 1954 (AEA), 42 U.S.C. 2011et seq.; the Energy Reorganization Act of 1974 (ERA), 42 U.S.C. 5801-5911; and the Department of Energy Organization Act (DOEOA), 42 U.S.C. 7101-7352. Specifically, the AEA authorized and directed the Atomic Energy Commission (AEC) to protect health and promote safety during the performance of activities under the AEA. See Sec. 31a.(5) of AEA, 42 U.S.C. 2051(a)(5); Sec. 161b. of AEA, 42 U.S.C 2201(b); Sec. 161i.(3) of AEA, 42 U.S.C. 2201(i)(3); and Sec. 161p. of AEA, 42 U.S.C. 2201(p). The ERA abolished the AEC and replaced it with the Nuclear Regulatory Commission (NRC), which became responsible for the licensing of commercial nuclear activities, and the Energy Research and Development Administration (ERDA), which became responsible for the other functions of the AEC under the AEA, as well as several nonnuclear functions. The ERA authorized ERDA to use the regulatory authority under the AEA to carry out its nuclear and nonnuclear function, including those functions that might become vested in ERDA in the future. See Sec. 105(a) of ERA, 42 U.S.C. 5815(a); and Sec. 107 of ERA, 42 U.S.C. 5817. The DOEOA transferred the functions and authorities of ERDA to DOE. See Sec. 301(a) of DOEOA, 42 U.S.C. 7151(a); Sec. 641 of DOEOA, 42 U.S.C. 7251; and Sec. 644 of DOEOA, 42 U.S.C. 7254.

B. Relationship to Other Regulatory Programs

DOE (like its predecessors, AEC and ERDA) has implemented this authority in a comprehensive manner by incorporating appropriate provisions on worker safety and health into the contracts under which work is performed at DOE workplaces. During the past decade, DOE has taken steps to ensure that contractual provisions on worker safety and health are tailored to reflect particular workplace environments. In particular, the “Integration of Environment, Health and Safety into Work Planning and Execution” clause set forth in the DOE procurement regulations requires DOE contractors to establish an integrated safety management system (ISMS). See 48 Code of Federal Regulations (CFR) 952.223-71 and 970.5223-1. As part of this process, a contractor must define the work to be performed, analyze the potential hazards associated with the work, and identify a set of standards and controls that are sufficient to ensure safety and health if implemented properly. The identified standards and controls are incorporated as contractual requirements through the “Laws, Regulations and DOE Directives” clause set forth in the DOE procurement regulations. See 48 CFR 970.0470-2 and 970.5204-2.

Currently DOE Order 440.1A, “Worker Protection Management for DOE Federal and Contractor Employees,” establishes requirements for a worker safety and health program. A DOE contractor with DOE Order 440.1A in its contract must have a worker protection program as stipulated by the Contractor Requirements Document (CRD) that accompanies the order. DOE applies these requirements through the incorporation of the CRD into relevant DOE contracts. In accordance with the CRD, contractors must implement a written worker protection program that integrates the performance-based requirements outlined in the CRD. A series of implementation guides and technical standards are available to assist DOE contractors in developing and implementing a worker protection program that will meet the intent of the performance-based requirements.

Also, DOE contractors are required to implement a worker safety and health program that is consistent with the “Integration of Environment, Health and Safety into Work Planning and Execution” clause set forth in the DOE procurement regulations. See 48 CFR 952.223-71, 970.5223-1.

Overview of DOE Order 440.1A. DOE Order 440.1A establishes a comprehensive worker protection program that provides the basic framework necessary for contractors to ensure the safety and health of their workforce. In short, the Order provides a well-integrated, cost-effective, performance-based program designed to ensure contractors recognize hazards, prevent accidents before they happen, and protect the lives and well-being of their employees.

Such “corporate” programs have long been recognized by private industry as the most effective and efficient means to protect worker health and safety on the job. Where applied, these programs have consistently resulted in enhanced worker protection, decreased worker's compensation premiums, increased productivity and employee morale, declines in absenteeism and employee turnover, and decreased employer liability. The Occupational Safety and Health Administration (OSHA) recognized the effectiveness of such programs in its Safety and Health Program Management Guidelines (published in 1989), which were derived from the safety and health programs of private industry firms with the best safety and health performance records. DOE Order 440.1A program requirements are organized and consistent with the four basic program elements of OSHA's Guidelines on Workplace Safety and Health Management (i.e.,(1) management commitment and employee involvement, (2) worksite analysis, (3) hazard prevention and control, and (4) training).

DOE Order 440.1A specifically requires contractors to implement a written worker protection program that describes site-specific methods for complying with the requirements of the order; establish written policies, goals, and objectives to provide a focus for, and foster continual improvement of, their worker protection programs; and identify existing and potential workplace hazards, evaluate associated risks, and implement appropriate risk-based controls. In addition, the order establishes (1) worker rights and responsibilities that are consistent with those afforded to private industry employees through Federal regulations and (2) baseline safety and health requirements in specific technical disciplines.

The order encompasses all worker protection disciplines, including occupational safety, industrial hygiene, fire protection (worker protectionaspects only), construction safety, explosives safety, contractor occupational medical care, pressure safety, firearms safety, and motor vehicle safety. Where necessary, the order cross-references related elements of other orders—such as training, accident investigation, and safety and health reporting orders—without duplicating their respective requirements.

Overview of Integrated Safety Management (ISM).A major concept of ISM is the integration of safety awareness and good practices into all aspects of work conducted at DOE. Simply stated, work should be conducted in such a manner that protects workers and other people, and does not cause harm to the environment. Safety is an integral part of each job, not a stand-alone program.

ISM has seven guiding principles and five core functions. The seven guiding principles of ISM are:

(1) Line management responsibility. Line management is directly responsible for the protection of the public, the workers, and the environment. As a complement to line management, the Office of Environment, Safety and Health (EH) provides safety policy, enforcement, and independent oversight functions.

(2) Clear roles and responsibilities. Clear and unambiguous lines of authority and responsibility for ensuring safety must be established and maintained at all organized levels within the Department and its contractors.

(3) Competence commensurate with the responsibility. Personnel must possess the experience, knowledge, skills, and abilities that are necessary to discharge their responsibilities.

(4) Balanced priorities. Resources must be effectively allocated to address safety, programmatic, and operational considerations. Protecting the public, the workers, and the environment must be a priority whenever activities are planned and performed.

(5) Identification of safety standards and requirements. Before work is performed, the associated hazards must be evaluated and an agreed-upon set of safety standards and requirements must be established which, if properly implemented, will provide adequate assurance that the public, the workers, and the environment are protected from adverse consequences.

(6) Hazard control tailored to work being performed. Administrative and engineering controls to prevent and mitigate hazards must be tailored to the work being performed and the associated hazards.

(7) Operations authorization. The conditions and requirements to be satisfied for operations to be initiated and conducted must be clearly established and agreed-upon.

The five core functions of ISM are: (1) Define the scope of work; (2) identify and analyze hazards associated with the work; (3) develop and implement hazard controls; (4) perform work within controls; and (5) provide feedback on adequacy of controls and continue to improve safety management.

Consistency with DOE Order 440.1A and Integrated System Management.This final rule builds on existing contract practices and processes to achieve safe and healthful workplaces. The rule is intended to be complementary to DOE Order 440.1A and ISM. Accordingly, DOE expects contractors to comply with the requirements of this rule in a manner that takes advantage of work already done as part of DOE Order 440.1A and ISM and to minimize duplicative or otherwise unnecessary work.

As a general matter, DOE expects that, if contractors at a DOE site have fulfilled their contractual responsibilities for DOE Order 440.1A and ISM properly, little, if any, additional work will be necessary to implement the written worker safety and health program required by this regulation. Contractors should undertake new analyses and develop new documents only to the extent existing analyses and documents are not sufficient for purposes of this regulation. In determining the allowability of costs incurred by contractors to develop approved worker safety and health programs, the Department will consider whether the amount and nature of a contractor's expenditures are necessary and reasonable in light of the fact that the contractor has an approved ISM system in place.

III. Overview of the Final Rule

This final rule codifies the Department's worker protection program requirements established in DOE Order 440.1A, “Worker Protection Management for DOE Federal and Contractor Employees.” Consistent with the intent of Congress, DOE Order 440.1A forms the basis for the rule's substantive requirements. The Conference Committee for the NDAA recognized that contractors currently operate under this order, “which provides an adequate level of safety.” (Conference Report 107-772, November 12, 2002, at 797.)

The Department has structured the final rule this way for three main reasons: (1) To take advantage of existing and effective comprehensive worker protection programs that have been implemented by contractors at DOE sites; (2) to minimize the burden on DOE contractors by clarifying that contractors need not establish redundant worker protection programs to comply with the proposed rule; and (3) to build on a successful program, given that DOE Order 440.1A has been successfully and effectively implemented by DOE contractors for close to a decade. DOE believes that basing this rule on DOE Order 440.1A is consistent with section 234C of the NDAA which directs the Department to promulgate regulations which provide a level of protection that is “substantially equivalent to the level of protection currently provided to” these workers (41 U.S.C. 2282c(a)(1)). Consistent with DOE Order 440.1A, this final rule establishes requirements for an effective worker safety and health program that will reduce or prevent injuries, illnesses, and accidental losses by providing DOE contractors and their workers with a safe and healthful workplace.

In basing the final rule on DOE Order 440.1A, DOE intends to take advantage of the existing series of implementation guides developed to assist DOE contractors in implementing the provisions of DOE Order 440.1A. Shortly after publication of this rule, DOE expects to publish updated implementation guides revised to specifically address the provisions of the final rule. Consistent with their use under DOE Order 440.1A, these updated guides will provide supplemental information and describe acceptable methods for implementing the performance-based requirements of the rule. DOE contractors are free to use the guidance provided in these non-mandatory documents or to develop and implement their own unique methods for compliance, provided that these methods afford workers a level of protection equal to or greater than that which would satisfy the rule's requirements. DOE believes that the availability of these updated guides will also further assist in ensuring a seamless transition from coverage under DOE Order 440.1A to regulation under 10 CFR part 851.

To ensure appropriate enforcement of the worker safety and health program the rule also establishes requirements and procedures for investigating the nature and extent of a violation, determining whether a violation has occurred, and imposing an appropriate remedy.

The Department has made changes in this final rule after considering theconcerns of the commenters with the supplemental notice of proposed rulemaking published in theFederal Registeron January 26, 2005 (70 FR 3812). The principal changes are as follows:

(1) The final rule codifies key worker safety and health standards from DOE Order 440.1A with which contractors must comply.

(2) The final rule establishes a formal variance process that requires approval by the Under Secretary with line management responsibility for the contractor that is requesting the variance, after considering the recommendations of the Assistant Secretary for Environment Safety and Health. The rule adds detailed procedures in (Subpart D) whereby a contractor can obtain a variance from a specific worker safety and health standard or a portion of the standard. These procedures will ensure that variances are only granted where warranted and where an equivalent level of protection is provided through other means.

(3) The final rule establishes updates to functional areas. These updates are intended to ensure the function areas more closely reflect the requirements of DOE Order 440.1A.

(4) The final rule recognizes the value of a central technical authority and the importance of senior DOE management involvement. The Assistant Secretary for Environment, Safety and Health has played a central role in the development of the final rule and will continue to play a central role in its implementation and enforcement. In addition to providing technical guidance and assistance, the Assistant Secretary is responsible for recommending to the Under Secretary whether to grant or deny a variance. The Office of Price-Anderson Enforcement, which reports to the Assistant Secretary, is responsible for investigating potential violations and deciding whether to take certain enforcement actions against the contractor, including the imposition of civil penalties for all facilities. The final rule makes the Under Secretary with line management responsibility for a contractor responsible for deciding whether to grant a variance to the contractor.

The provisions of the rule are presented in five main subparts. Subpart A describes the scope, purpose, and applicability of the rule, defines terms that are critical to the rule's application and implementation, and establishes contractor responsibilities for executing the rule. Subpart B establishes program requirements to develop and maintain a worker safety and health program and to perform safety and health activities in accordance with the approved program. Subpart C establishes provisions that focus on management responsibilities and worker rights, protecting the worker from the effects of safety and health hazards by requiring hazard identification and assessment, hazard prevention and abatement, specific regulatory requirements, functional areas provisions, recordkeeping and program evaluations. Subpart D establishes the criteria and procedures for requesting a variance. Subpart E establishes the enforcement process.

To ensure that the Department captured the entire list of contractor requirements specified in DOE Order 440.1A, the Department developed a “crosswalk” of the requirements in the current DOE order and the final provisions of 10 CFR part 851. See Table 1.

Table 1.—Crosswalk of DOE Order 4401.1A Requirements and 10 CFR 851 Final Rule Requirements DOE order 440.1A requirements Corresponding 10 CFR 851 provisions 1. Objective .1Purpose 3.b. Applicability .1Scope 3.c. Exclusions .2Exclusions Attachment 2—Contractor Requirements Document The contractor shall comply with the requirements below; however, the requirements for the specific functional areas that are addressed in paragraphs 14 through 22 apply only if the contractor is involved in these activities .24Functional areas. 1. Implement a written worker protection program that: .11(a), .12Preparation and submission of worker safety and health programImplementation. 1.a. Provide a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees; and .10(a)(1)General requirements. 1.b. Integrates all requirements contained in this attachment and other related site-specific worker protection activities .11(a)(3) (ii)Preparation and submission of worker safety and health program. 2. Establish written policy, goals, and objectives for the worker protection program .20(a)(1)Management responsibilities. 3. Use qualified worker protection staff to direct and manage the worker protection program .20(a)(2)Management responsibilities. 4. Assign worker protection responsibilities, evaluate personnel performance, and hold personnel accountable for worker protection performance .20(a)(3)Management responsibilities. 5. Encourage employee involvement in the development of program goals, objective, and performance measures and in the identification and control of hazards in the workplace .20(a)(4)Management responsibilities. 6. Provide workers the right, without reprisal, to: .20(a)(6)Management responsibilities. 6.a. Accompany DOE worker protection personnel during workplace inspections; .20(b)(5)Worker rights. 6.b. Participate in activities provided for herein on official time; .20(b)(1)Worker rights. 6.c. Express concerns related to worker protection; .20(b)(7)Worker rights. 6.d. Decline to perform an assigned task because of a reasonable belief that, under the circumstances, the task poses an imminent risk of death or serious bodily harm to that individual, coupled with a reasonable belief that there is insufficient time to seek effective redress through the normal hazard reporting and abatement procedures established in accordance with the requirements herein; .20(b)(8)Worker rights. 6e. Have access to DOE worker protection publications, DOE-prescribed standards, and the organization's own protection standards or procedures applicable to the workplace; .20(b)(2) (i)-(ii)Worker rights. 6.f. Observe monitoring or measuring of hazardous agents and have access to the results of exposure monitoring; .20(b)(4)Worker rights. 6.g. Be notified when monitoring results indicate they were overexposed to hazardous materials; and .20(b)(3)Worker rights 6.h. Receive results of inspections and accident investigations upon request .20(b)(6)Worker rights 7. Implement procedures to allow workers, through their supervisors, to stop work when they discover employee exposures to imminent danger conditions or other serious hazards. The procedure shall ensure that any stop work authority is exercised in a justifiable and responsible manner .20(a)(9)Management responsibilities. 8. Inform workers of their rights and responsibilities by appropriate means, including posting the appropriate DOE Worker Protection Poster in the workplace where it is accessible to all workers .20(a)(10)Management responsibilities. 9. Identify existing and potential workplace hazards and evaluate the risk of associated worker injury and illness .21(a)Hazard identification and assessment. 9.a. Analyze or review: (1) Designs for new facilities and modifications to existing facilities and equipment; (2) Operations and procedures; and (3) Equipment, product and service needs .21(a)(4)-(5)Hazard identification and assessment. 9.b. Assess worker exposure to chemical, physical, biological, or ergonomic hazards through appropriate workplace monitoring (including personal, area, wipe, and bulk sampling); biological monitoring; and observation. Monitoring results shall be recorded [Documentation shall describe the tasks and locations where monitoring occurred, identify workers monitored or represented by the monitoring, and identify the sampling methods and durations, control measures in place during monitoring (including the use of personal protective equipment), and any other factors that may have affected sampling results.] .21(a)(1)-(3)Hazard identification and assessment [Moved to guidance document.] 9.c. Evaluate workplaces and activities (accomplished routinely by workers, supervisors, and managers and periodically by qualified worker protection professionals) .21(a)(5)Hazard identification and assessment. 9.d. Report and investigate accidents, injuries and illnesses and analyze related data for trends and lessons learned (reference DOE Order 210.1) .26(d)Recordkeeping and reporting. 10. Implement a hazard control prevention/abatement process to ensure that all identified hazards are managed through final abatement or control .22(a)Hazard prevention and abatement. 10.a. For hazards identified either in the facility design or during the development of procedures, control shall be incorporated in the appropriate facility design or procedure .22(a)(1)Hazard prevention and abatement. 10.b. For existing hazards identified in the workplace, abatement actions prioritized according to risk to the worker shall be promptly implemented, interim protective measures shall be implemented pending final abatement, and workers shall be protected immediately from imminent danger conditions .22(a)(2) (i), (ii), (iii)Hazard prevention and abatement. 10.c. Hazards shall be addressed when selecting or purchasing equipment, products, and services .22(c)Hazard prevention and abatement. 10.d. Hazard control methods shall be selected based on the following hierarchy: (1) Engineering control (2) Work practices and administrative controls that limit worker exposure (3) Personal protective equipment .22(b)(2)-(4)Hazard prevention and abatement. 11. Provide workers, supervisors, managers, visitors, and worker protection professionals with worker protection training .25Information and training. 12. Comply with the following worker protection requirements: .23(a)Safety and health standards. 12.a. Title 29 Code of Federal Regulations (CFR), Part 1910, “Occupational Safety and Health Standards” .23(a)(3)Safety and health standards. 12.b. Title 29 CFR, Part 1915, “Shipyard Employment” .23(a)(4)Safety and health standards. 12.c. Title 29 CFR, Part 1917, “Marine Terminals” .23(a)(5)Safety and health standards. 12.d. Title 29 CFR, Part 1918, “Safety and Health Regulations for Longshoring” .23(a)(6)Safety and health standards.
12.e. Title 29 CFR, Part 1926, “Safety and Health Regulations for Construction” .23(a)(7)Safety and health standards. 12.f. Title 29 CFR, Part 1928, “Occupational Safety and Health Standards for Agriculture” .23(a)(8)Safety and health standards. 12.g. American Conference of Governmental Industrial Hygienists (ACGIH), “Threshold Limit Values for Chemical Substances and Physical Agents and Biological Exposure Indices” when the ACGIH Threshold Limit Values (TLVs) are lower (more protective) than permissible exposure limits in 29 CFR 1910. When the ACGIH TLVs are used as exposure limits, contractors must nonetheless comply with the other provisions of any applicable expanded health standard found in 29 CFR 1910 .23(a)(9)Safety and health standards. 12.h. American National Standards Institute (ANSI) Z136.1, “Safe Use of Lasers” .23(a)(11)Safety and health standards. 12.i. ANSI Z88.2, “American National Standard Practices for Respiratory Protection” .23(a)(10)Safety and health standards. 12.j. ANSI Z49.1, “Safety in Welding, Cutting and Allied Processes,” sections 4.3 and E4.3 (of the 1994 edition or equivalent sections of subsequent editions) .23(a)(12)Safety and health standards. 12.k. National Fire Protection Association (NFPA) 70, “National Electrical Codes” .23(a)(14)Safety and health standards. 12.l. NFPA 70E, “Electrical Safety in the Workplace” .23(a)(15)Safety and health standards. 13. Ensure that subcontractors performing work on DOE-owned or -leased facilities comply with this Contractor Requirements Document and the contractor's own site worker protection standards (where applicable) 14. Construction Safety Appendix A section 1. 15. Fire Protection Appendix A section 2. 16. Firearms Safety Appendix A section 5. 17. Explosives Safety Appendix A section 3. 18. Industrial Hygiene Appendix A section 6. 19. Occupational Medicine Appendix A section 8. 20. Pressure Safety Appendix A section 4. 21. Motor Vehicle Safety Appendix A section 9. 22. Suspect and Counterfeit Item (S/CI) Controls Section moved to DOE Order 414.1C, Quality Assurance (June 17, 2005).

Many provisions have been reformatted and renumbered in this final rule, creating differences between it and the published supplemental notice of proposed rulemaking. To aid in tracking the provisions of both documents, the Department has included a table comparing sections in the final rule to the corresponding sections in the supplemental notice of proposed rulemaking. See Table 2.

Table 2.—Comparison of Final 10 CFR 851 Rule Sections With the Supplemental Notice of Proposed Rulemaking (SNOPR) Final rule section Corresponding supplemental proposal section PART 850—Chronic Beryllium Disease Prevention Program Authority Notice of Proposed Rulemaking December 8, 2003, N/A. 850.1Scope Notice of Proposed Rulemaking December 8, 2003, N/A. 850.4Enforcement Notice of Proposed Rulemaking December 8, 2003, N/A. PART 851—Worker Safety and Health Program Subpart A—General Provisions Subpart A—General Provisions 851.1Scope and purpose 851.1Scope and exclusions.
  • 851.2Purpose.
  • 851.2Exclusions 851.1Scope and exclusions. 851.3Definitions 851.3Definitions. 851.4Compliance Order 851.5Compliance Order. 851.5Enforcement 851.9Enforcement. 851.6Petitions for generally applicable rulemaking 851.6Interpretations. 851.7Requests for a binding interpretive ruling 851.6Interpretations. 851.8Informal requests for information 851.6Interpretations. Subpart B—Program Requirements Subpart A—General Provisions Subpart B—Worker Safety and Health Program 851.10General requirements 851.4General rule.
  • 851.100Worker safety and health program.
  • 851.11Development and approval of the worker safety and health program 851.101Approval and maintenance of the worker safety and health program. 851.12Implementation 851.100Worker safety and health program. 851.13Compliance 851.8Compliance. Subpart C—Specific Program Requirements Subpart A—General Provisions Subpart B—Worker Safety and Health Program Subpart C—Safety and Health Requirements 851.20Management responsibilities and worker rights and responsibilities 851.10Worker rights. 851.21Hazard identification and assessment 851.100Worker safety and health program. 851.22Hazard prevention and abatement 851.100Worker safety and health program. 851.23Workplace safety and health standards 851.200Worker safety and health requirements.
  • 851.201Worker safety and health standards.
  • 851.24Functional areas 851.200Worker safety and health requirements. 851.25Training and information 851.100Worker safety and health program. 851.26Recordkeeping and reporting 851.7Information and records. 851.27Incorporation by reference Subpart D—Variances Subpart D—Exemption Relief 851.30Consideration of variances 851.300Exemptions. 851.31Variance process 851.301Exemption criteria. 851.32Action on variance request 851.300Exemptions. 851.33Terms and conditions 851.302Terms and conditions. 851.34Requests for conferences Subpart E—Enforcement Process Subpart E—Enforcement Process 851.40Investigations and inspections 851.400Investigations and inspections. 851.41Settlement 851.42Preliminary notice of violation 851.402Preliminary notice of violation. 851.43Final notice of violation 851.403Final notice of violation. 851.44Administrative appeal 851.404Administrative appeal. 851.45Direction to NNSA contractors 851.405Direction to NNSA contractors. APPENDIX A TO PART 851—WORKER SAFETY AND HEALTH FUNCTIONAL AREAS Subpart C—Safety and Health Requirements
  • (Sections 851.202 to 851.210)
  • A.1Construction safety 851.202Construction safety. A.2Fire protection 851.203Fire protection. A.3Explosives safety 851.204Explosives safety. A.4Pressure safety 851.205Pressure retaining component safety. A.5Firearms safety 851.208Firearms safety. A.6Industrial hygiene 851.209Industrial hygiene. A.7Biological safety 851.207Biological safety. A.8Occupational medicine 851.210Occupational medicine. A.9Motor vehicle safety 851.206Motor vehicle safety. A.10Electrical safety A.11Nanotechnology—Reserved A.12Workplace Violence Prevention—Reserved APPENDIX B TO PART 851—GENERAL STATEMENT OF ENFORCEMENT POLICY APPENDIX A TO PART 851—GENERAL STATEMENT OF ENFORCEMENT POLICY
    IV. Section-by-Section Discussion of Comments and Rule Provisions

    This section of the Supplementary Information responds to significant comments on specific proposed rule provisions. It contains explanatory material for some final rule provisions in order to provide interpretive guidance to DOE contractors that must comply with this rule. All substantive changes from the supplemental notice of proposed rulemaking are explained in this section. However, some non-substantive changes, such as renumbering of paragraphs and minor changes clarifying the meanings of rule provisions are not discussed.

    DOE has determined that the requirements set forth in this rule are those which are necessary to provide a safe and healthful workplace for DOE contractors and their workers.

    The majority of the comments received during the public comment period addressed specific provisions or subparts (e.g., scope and exclusions, enforcement process, program requirements, exemption process, and consensus standards) of the supplemental proposed rule. Each of these comments is discussed in detail below in the discussion of the corresponding section of the rule.

    Several commenters, however, expressed more general concerns regarding the entire proposed rule. For instance, a few commenters (Exs. 20, 27, 48) expressed concern regarding a perceived lack of detail in the proposed rule. One of these commenter (Ex. 20) felt that terms such as “reasonable,” “any,” “all,” “significant,” “adequate,” “near miss,” “potential,” “comprehensive,” and “general” used throughout the rule were too subjective to ensure consistency in contractor programs and enforcement. Another commenter (Exs. 48) believed that the proposed rule was not sufficiently developed and many processes and required guidance materials have either not yet been developed or have not been adequately described. This commenter also felt that the proposed regulation as currently written would represent a shift in safety emphasis from the positive influence, as described by the Integrated Safety Management System (ISMS), to a negative, enforcement-based culture. The commenter recommended that DOE consult with safety and health professionals within DOE, in other government agencies such as OSHA, and in private industry when preparing the final rule. The third commenter (Ex. 27) argued that the “level of protection” required under section 3173 of the NDAA must be defined in the rule to allow contractor compliance.

    DOE has carefully reviewed the rule in light of these comments and other more specific comments received during the public comment period and has attempted to address those requesting clarification or further detail through either revisions to the text of the final rule or through clarification in this preamble discussion. DOE also intends to publish appropriate guidance materials to further assist contractors with implementation. DOE notes that this final rule is the result of extensive coordination within the DOE safety and health community and the careful consideration of all comments received during the pubic comment period including those comments received from health and safety professionals from other organizations.

    Two commenters (Ex. 44, 60) urged DOE to begin the process of staffing, training, and setting forth resource requirements in order to implement this rule in a timely manner. DOE notes, however, that the rule is based largely on the provisions of DOE Order 440.1A. As a result, existing staff within DOE will be capable of performing Departmental actions necessary to implement the rule.

    One commenter (Ex. 37) asserted that the health and safety framework established under the rule is unlike the health and safety provisions applicable to all other facilities in the country that are subject to OSHA jurisdiction. This commenter felt that such a discrepancy would discourage talented health and safety professionals from working at DOE facilities because of the prospect of learning a regulatory scheme that does not apply elsewhere. The commenter argued that “the best and the brightest” health and safety professionals would be hoping to acquire transferable skills. DOE disagrees with this commenter. The provisions of the final rule stem directly from DOE Order 440.1A which was modeled after OSHA's Safety and Health Program Management Guidelines. OSHA derived these guidelines from the safety and health program of private industry firms with the best safety and health performance records. OSHA encourages all employers to implement these guidelines and recognizes the accomplishments of the best performers in safety and health through its Voluntary Protection Program (VPP). As a result, DOE believes that the safety and health program required under this rule will continue to promote safety and health excellence among DOE contractors and will in fact attract “well qualified” safety and health professionals.

    One commenter (Ex. 6) expressed concern that the proposed rule did not respond to past Inspector General (IG) and Government Accountability Office (GAO) reports recommending that DOE National Laboratories transition to external OSHA regulation. The commenter recommended that DOE compare the proposed rule with previous external IG and GAO reports regarding regulation of DOE National Laboratories. This same commenter also asserted that there is a need for a centralized enforcement (compliance) agency, and suggested that DOE follow the Great Britain model and combine the Environmental Protection Agency (EPA), OSHA, DOE, Nuclear Regulatory Commission (NRC), Defense Nuclear Facilities Safety Board (DNFSB), Price-Anderson Amendment Act (PAAA), DOE's Office of Independent Oversight and Performance Assurance, etc., compliance groups to form an “Agency of Oversight and Compliance” to provide coordinated, synergistic, and comprehensive oversight. Both suggestions, however, go beyond the statutory mandate of section 3173 of the NDAA and the scope of this rulemaking effort. Moreover, the Department lacks the authority and jurisdiction to implement these suggestions.

    A. Subpart A—General Provisions Section 851.1—Scope and Purpose

    The worker safety and health program required by this rule establishes the framework for a comprehensive program that will reduce or prevent injuries, illnesses, and accidental losses by providing DOE contractors and their workers with a safe and healthful workplace. DOE has structured the rule this way for two main reasons: (1) To take advantage of existing and effective comprehensive worker protection programs that have been implemented at DOE facilities and (2) to minimize the burden on contractors by clarifying that they need not establish redundant worker protection programs to protect workers from occupational safety and health hazards.

    Section 851.1(a) establishes the scope of this regulation. The worker safety and health requirements in this part govern the conduct of activities by DOE contractors at DOE sites. As clarified in the definition of “contractor” (section 851.3), DOE's intent is that the contractors covered under this rule include any entity under contract to perform activities at a DOE site in furtherance of a DOE mission, including subcontractors at any tier.

    One commenter (Ex. 6) suggested the rule should apply only to defense nuclear facilities. DOE notes that the legislation, section 3173 of the NDAA is not limited to defense nuclear facilities.

    A few commenters (Exs. 28, 45, 51) observed that section 3173 of the NDAA only applies to contractors covered by agreements of indemnification under section 170d. of the AEA. The commenters suggested that part 851 should not exceed this statutory mandate and should only apply to such contractors. Presumably since “contractual enforcement under proposed rule section 851.4(b) would only be available against prime contractors and not subcontractors,” these commenters argued that, “the ruleshould only apply to contractors covered by agreement of indemnification,” amending the Nuclear Hazards Indemnity Agreement (NHIA) in order to put contractors on notice of civil and contract penalties for violation of DOE worker safety and health rules. Although DOE recognizes that section 234C of the AEA only mandates contractors covered by agreements of indemnification, DOE has decided to cover all of its contractors to ensure consistency in the protection of workers throughout the DOE complex. As described in Section II of this Supplementary Information, DOE has broad authority to regulate worker safety and health with respect to nuclear and nonnuclear functions, and it is not limited to the authority in section 234C. While the regulations cover all contractors, the authority to impose civil penalties is limited to those covered by agreements of indemnity.

    Several commenters (Exs. 39, 49, 61) questioned who would be held responsible for worker safety and health on DOE-leased sites in those areas outside the control of the contractor but where the contractor may perform work. One commenter (Ex. 49) suggested that under the rule, facility worker safety and health requirements should not apply to leased facilities to the extent they are regulated under State or local regulations. However, the commenter argued, the rule's program requirements should continue to apply to DOE contractors at these leased facilities. DOE intends for all contractors on a work site to establish and maintain a worker safety and health program for the workplaces for which each contractor is responsible as required in final rule section 851.11(a)(2)(ii). In addition, contractors on a site must coordinate with other contractors responsible for work at the covered workplaces to ensure that there are clear roles, responsibilities and procedures that will ensure the safety and health of workers on multi-contractor workplaces. DOE further intends to develop Enforcement Guidance Supplements based in part on OSHA's multi-employer worksite policies to guide enforcement efforts on multi-employer worksites. DOE notes that final rule section 851.1(a) clarifies that the rule applies to the conduct of contractor activities at DOE sites, and section 851.3 clarifies that DOE sites include not only locations leased or owned by DOE, but also locations controlled by DOE through the exercise of its regulatory authority.

    Two commenters (Exs. 15, 37) expressed concern over application of the rule to subcontractors and favored deleting “subcontractors” from the applicability or reducing the impact of the rule on subcontractors. Subcontractors must implement the requirements of the rule for covered workplaces for which they are responsible and, in other situations, act consistently with applicable regulations and worker safety and health standards.

    One commenter (Ex. 39) suggested that the rule could be interpreted as applying to employees of DOE tenant organizations performing work on a DOE site. The commenter observed that contractors cannot impose or enforce the worker safety and health requirements of this rule on tenants if they do not maintain a contractual relationship with them. DOE does not intend the rule to cover persons who are not performing work in furtherance of a DOE mission. To clarify this intent, DOE has revised the definitions of “covered workplace” and “contractor” to limit their scope to situations in which work is being performed in furtherance of a DOE mission. Thus the rule does not apply to a person restocking a vending machine. Likewise, the rule does not apply to DOE tenant organizations, except to the extent it had a contractual obligation to perform work in furtherance of a DOE mission.

    One commenter (Ex. 39) sought clarification of whether “work done on public or private property off the reservation by a DOE Prime Contractor” is covered under the rule. The rule applies to work performed at a DOE site. DOE has clarified in the definition of “DOE site” to include a location that DOE controls through exercise of its AEA authority, even if DOE does not own or lease the location. If DOE does not exercise control under the AEA, section 4(b)(2) exemption of the OSHA Act would not apply and OSHA would be responsible for regulating safety and health. DOE has also clarified the scope section to make clear that off-site transportation is not covered by the rule.

    One commenter (Ex. 29) sought clarification of whether the rule would apply to Federal employees at a covered worksite. DOE notes that the rule will not apply to Federal employees since Federal employees are covered under OSHA standards at 29 CFR 1960 (Basic Program Elements for Federal Employee Occupational Safety and Health Programs and Related Matters) as well as Executive Order 12196 (Occupational Safety and Health Programs for Federal Employees). Another commenter (Ex. 20) suggested the rule include provisions for resolving conflicts between Part 851 and the Federal occupational safety and health program. DOE sees no cause for concern, however, since both programs stem from DOE Order 440.1A, and there has been no need for such conflict resolution provisions under that order. DOE believes both programs are consistent with and complementary to each other.

    One commenter (Ex. 29) raised the question of whether DOE would consider “exempting” management and operating contractors from civil penalties for violations committed by other site contractors. DOE notes that the rule requires identification, evaluation and abatement of identified hazards, so that contractors are aware of the hazards in the covered workplace and respond appropriately. In addition, future enforcement guidance supplements will provide voluntary reporting thresholds. If the Office of Pric