Daily Rules, Proposed Rules, and Notices of the Federal Government
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
On January 8, 2004, DOE held a televideo conference to allow DOE employees, DOE contractors, contractor employees, and employee representatives to become familiar with the proposal. DOE held public hearings on the proposal in Washington, DC, on January 21, 2004, and in Golden, Colorado, via televideo on February 4, 2004. In addition to the oral comments at the public hearings, DOE received approximately 50 written comments on the December proposal.
After becoming aware that the Defense Nuclear Facilities Safety Board (DNFSB), which has safety oversight responsibility with regard to DOE nuclear facilities, had concerns about the proposed rule, DOE suspended the rulemaking by publishing a notice in the
As a result of its consultation with the DNFSB and consideration of other comments, DOE published a supplemental notice of proposed rulemaking (SNOPR) in the
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.
DOE has broad authority to regulate worker safety and health with respect to its nuclear and nonnuclear functions pursuant to the Atomic Energy Act of 1954 (AEA), 42 U.S.C. 2011
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.
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 (
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 protection
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.
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.
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 the
(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.
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.
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 (
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.
The worker safety and health program required by this rule establishes the framework for a comprehensive program that will reduce or prevent injuries, illnesses, and accidental losses by providing DOE contractors and their workers with a safe and healthful workplace. DOE has structured the rule this way for two main reasons: (1) To take advantage of existing and effective comprehensive worker protection programs that have been implemented at DOE facilities and (2) to minimize the burden on contractors by clarifying that they need not establish redundant worker protection programs to protect workers from occupational safety and health hazards.
Section 851.1(a) establishes the scope of this regulation. The worker safety and health requirements in this part govern the conduct of activities by DOE contractors at DOE sites. As clarified in the definition of “contractor” (section 851.3), DOE's intent is that the contractors covered under this rule include any entity under contract to perform activities at a DOE site in furtherance of a DOE mission, including subcontractors at any tier.
One commenter (Ex. 6) suggested the rule should apply only to defense nuclear facilities. DOE notes that the legislation, section 3173 of the NDAA is not limited to defense nuclear facilities.
A few commenters (Exs. 28, 45, 51) observed that section 3173 of the NDAA only applies to contractors covered by agreements of indemnification under section 170d. of the AEA. The commenters suggested that part 851 should not exceed this statutory mandate and should only apply to such contractors. Presumably since “contractual enforcement under proposed rule section 851.4(b) would only be available against prime contractors and not subcontractors,” these commenters argued that, “the rule
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