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Chronic Beryllium Disease Prevention Programs; Worker Safety and Health
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: December 8, 2003 (Volume 68, Number 235)]
[Proposed Rules]
[Page 68276-68299]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08de03-7]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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DEPARTMENT OF ENERGY
10 CFR Parts 850 and 851
[Docket No. EH-RM-03-WSH]
RIN 1901-AA99
Chronic Beryllium Disease Prevention Programs; Worker Safety and Health
AGENCY: Department of Energy.
ACTION: Proposed rulemaking and opportunity for public comment.
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SUMMARY: Pursuant to section 3173 of the Bob Stump National Defense
Authorization Act for Fiscal Year 2003 (NDAA), DOE is proposing
regulations for worker safety and health at Department of Energy (DOE)
workplaces. These proposed regulations are intended to maintain the
high level of protection currently afforded workers throughout the DOE
complex.
DATES: The comment period for this proposed rule will end on February
6, 2004. The public hearings for this rulemaking will be held on:
January 21, 2004 in Arlington, VA (Washington, DC) from 9 a.m. to 12
p.m. and from 1:30 p.m. to 5 p.m.; and February 4, 2004 in Golden CO
(Denver) from 9 a.m. to 1 p.m., and from 4 p.m. to 8 p.m. Requests to
speak at any of the hearings should be phoned in to Jacqueline D.
Rogers, 301-903-5684, by January 20, 2004, for the Arlington, VA
(Washington, DC) hearing; and February 2, 2004, for the Golden, CO
(Denver) hearing. Each presentation is limited to 10 minutes.
ADDRESSES: Written comments (three copies) on the proposed rule should
be addressed to: Jacqueline D. Rogers, U.S. Department of Energy,
Docket Number EH-RM-03-WSH; EH-52/270 Corporate Square Building; 1000
Independence Avenue SW, Washington, DC 20585-0270. Alternatively,
comments can be filed electronically by e-mail to:
rule851.comments@hq.doe.gov noting ``Worker Safety and Health Rule
Comments'' in the subject line. Where possible, commenters should
identify the specific section to which they are responding.
Copies of the public hearing transcripts, written comments
received, and any other docket material may be reviewed on the Web site
specially established for this proceeding. The Internet Web site is
http://www.eh.doe.gov/whs/rulemaking. 
The public hearings for this rulemaking will be held at the
following addresses:
Arlington, VA (Washington, DC): Marriott Crystal City Hotel, 1999
Jefferson Davis Highway, Arlington, VA 22202.
Golden, CO (Denver): DOE National Renewable Energy Laboratory,
Visitor Center, Auditorium, 15013 Denver West Parkway, Golden, CO 80401
(I-70, Exit 263, right at top of exit ramp if coming from Denver, left
at stop sign, building on right).
For more information concerning public participation in this
rulemaking proceeding, see section IV of this notice of proposed
rulemaking (Public Comment Procedures).
FOR FURTHER INFORMATION CONTACT: Jacqueline D. Rogers, U.S. Department
of Energy, 1000 Independence Avenue SW., Washington, DC 20585-0270,
301-903-5684, e-mail: jackie.rogers@hq.doe.gov.
SUPPLEMENTARY INFORMATION:
I. Introduction
II. Proposed Regulations
III. 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
IV. Public Comment Procedures
A. Written Comments
B. Public Hearing
I. Introduction
DOE has broad authority to regulate worker safety and health with
respect to its nuclear and nonnuclear functions pursuant to the Atomic
Energy Act of 1954 (AEA), 42 U.S.C. 2011 et seq., the Energy
Reorganization Act of 1974 (ERA), 42 U.S.C. 5801-5911, and the
Department of Energy Organization Act (DOEOA), 42 U.S.C. 7101-7352.
Specifically, the AEA authorized and directed the Atomic Energy
Commission (AEC) to protect health and promote safety during the
performance of activities under the AEA. See Sec. 31a.(5) of AEA, 42
U.S.C. 2051(a)(5); Sec. 161b. of AEA, 42 U.S.C 2201(b); Sec. 161i.(3)
of AEA, 42 U.S.C. 2201(i)(3); and Sec. 161p. of AEA, 42 U.S.C. 2201(p).
The ERA abolished the AEC and replaced it with the Nuclear Regulatory
Commission (NRC), which became responsible for the licensing of
commercial nuclear activities, and the Energy Research and Development
Administration (ERDA), which became responsible for the other functions
of the AEC under the AEA, as well as several nonnuclear functions. The
ERA authorized ERDA to use the regulatory authority under the AEA to
carry out its nuclear and nonnuclear function, including those
functions that might become vested in ERDA in the future. See Sec.
105(a) of ERA, 42 U.S.C. 5815(a); and Sec. 107 of ERA, 42 U.S.C. 5817.
The DOEOA transferred the functions and authorities of ERDA to DOE. See
Sec. 301(a) of DOEOA, 42 U.S.C. 7151(a); Sec. 641 of DOEOA, 42 U.S.C.
7251; Sec. 644 of DOEOA, 42 U.S.C. 7254.
DOE (like its predecessors, the AEC and the 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. 48 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
[[Page 68277]]
requirements through the Laws, Regulations and DOE Directives clause
set forth in the DOE procurement regulations. 48 CFR 970.0470-2 and
970.5204-2. Following the enactment of the Price-Anderson Amendments
Act of 1988, Pub. L. 100-408, granting the Department the authority to
impose civil penalties for nuclear safety violations on contractors
with Price-Anderson indemnification agreements, DOE supplemented its
contractual based regulatory approach with a further more specific set
of rules set forth in 10 CFR parts 820, 830, and 835 to ensure nuclear
safety and protection from radiological hazards during the conduct of
DOE activities.
In 2002, Congress directed DOE to promulgate regulations on worker
safety and health governing contractors with Price-Anderson
indemnification agreements rather than rely exclusively on a
contractual approach to establish safe and healthy workplaces.
Specifically, section 3173 of the NDAA amended the AEA to add section
234C (codified as 42 U.S.C. 2282c) that requires DOE to promulgate
worker safety and health regulations that maintain ``the level of
protection currently provided to * * * workers.'' Pub. L. 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.'' 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. Section 234C also directed DOE to insert in such contracts a
clause providing for reducing contractor fees and other payments in the
event of a violation by a contractor or contractor employee of any
regulation promulgated under section 234C while specifying that both
sanctions may not be used for the same violation. The Secretary of
Energy has approved the issuance of this Notice to propose regulations
to implement the statutory mandate of the NDAA.
II. Proposed Regulations
A. Summary
The proposed regulation would set forth the obligations of DOE
contractors (which, consistent with section 234C, proposed Sec. 851.3
would define as entities under contract with DOE, including affiliated
entities, subcontractors and suppliers) to provide safe and healthy
workplaces for workers (which, consistent with section 234C, proposed
Sec. 851.3 would define as employees who perform work in a workplace
covered by the proposed regulations). In particular, the proposed
regulations would require a contractor responsible for a DOE workplace
to ensure: (1) that the workplace is free from recognized hazards that
are causing or are likely to cause death or serious bodily harm; and
(2) that work is performed in accordance with the worker safety and
health program for the workplace. Consistent with section 234C, the
worker safety and health program must be approved by DOE and must
achieve a level of protection at least substantially equivalent to the
level of protection that existed in workplaces throughout the DOE
complex in the year 2002 (i.e., the year of enactment of section 3173
of the NDAA) that are comparable to the workplaces to which the program
would apply. When the regulations become effective, no work could be
performed at a workplace for which DOE had not approved a worker safety
and health program. Consistent with section 234C, DOE approval would be
based on a determination that the program would achieve the required
level of protection.
A contractor would develop and maintain a single worker safety and
health program for all the workplaces at a DOE site for which the
contractor is responsible and would coordinate with any other DOE
contractors responsible for other workplaces at the site to ensure an
integrated and consistent approach to worker safety and health at the
site. A contractor would discharge its duties concerning the worker
safety and health program in a manner consistent with the integrated
safety management process set forth in the clauses, Integration of
Environment, Health and Safety into Work Planning and Execution. 48 CFR
952.223-71, 970.5223-1. First, the contractor would identify and
analyze the workplace environment, the work activities performed there,
and the potential hazards to workers. On the basis of this
identification and analysis, the contractor would select and document a
set of workplace safety and health standards that are necessary and
sufficient to protect workers from the identified hazards in a manner
that achieves a level of protection substantially equivalent to the
level of protection that existed in comparable DOE workplaces in 2002.
A contractor should select the combination of appropriate standards
that it believes is best designed to achieve the required level of
protection in a manner consistent with the Departmental mission it is
performing. DOE has included an appendix to the proposed regulations
that sets forth a description of worker safety standards and programs
generally acceptable for inclusion in a worker safety and health
program. This appendix is based on DOE Order 440.1A, which sets forth
DOE expectations concerning worker protection and which has been
incorporated into most DOE contracts through inclusion of the order's
Contractor Requirements Document. This appendix is included only to
provide generally acceptable worker safety and health standards and
programs and is not intended to prescribe particular standards and
programs. The contractor would implement the worker safety and health
program for a particular workplace in a manner tailored to fit the
particular work environment of that workplace. Radiological hazards
would not be covered by the proposed rule to the extent they are
regulated by the existing requirements on nuclear safety and
radiological protection set forth in 10 CFR parts 820, 830, and 835.
DOE intends to work with its contractors to achieve compliance with
the regulations and maintain the high level of protection currently
afforded workers. Once the proposed regulations are finalized, if a
contractor violated them, DOE could take appropriate enforcement action
against the contractor, including, in the case of contractors with
indemnification agreements, the imposition of civil penalties or the
reduction of contract fees.
With respect to a covered workplace operated by DOE, the proposed
regulations would make DOE responsible for ensuring work is performed
consistent with the requirements of the proposed regulations, including
the establishment, maintenance and implementation of a worker safety
and health program.
B. Level of Protection
Section 234C mandates the promulgation by DOE of worker safety and
health regulations that provide a level of protection substantially
equivalent to that provided to DOE contractor workers when the NDAA was
enacted. By focusing on level of protection, section 234C envisions
regulations that emphasize results (that is, maintaining or improving
the level of protection afforded DOE contractor workers), rather than
prescribing detailed courses of action that may not be the most
effective or sensible way of addressing a given hazard in a particular
situation.
[[Page 68278]]
The proposed regulations would incorporate the statutorily mandated
level of protection as follows. First, proposed Sec. 851.100 would
establish the general rule that a DOE contractor responsible for a
workplace must ensure: (1) The workplace is free from recognized
hazards that are causing or are likely to cause death or serious bodily
harm; and (2) work is performed in accordance with the worker safety
and health program for the workplace. This general rule codifies DOE's
current expectations concerning the level of protection DOE contractors
must afford workers, as set forth in DOE Order 440.1A. Second, proposed
Sec. 851.101(c)(2) would require a worker safety and health program to
include a set of workplace safety and health standards that would
achieve a level of protection at least substantially equivalent to the
level of protection that existed in the DOE complex in workplaces
comparable to the workplaces to which the program would apply. Third,
proposed Sec. 851.102 would prohibit the performance of work at a
workplace one year after publication of the final rule unless DOE had
approved the worker safety and health program for the workplace on the
basis of a determination that the worker safety and health program
would achieve a level of protection at least substantially equivalent
to the level of protection that existed in comparable workplaces in
2002.
C. Flexibility
Section 234C mandates DOE to promulgate worker safety and health
regulations that include sufficient ``flexibility--(A) to tailor
implementation of such regulations to reflect activities and hazards
associated with the particular work environment; (B) to take into
account special circumstances at a facility that is, or is expected to
be, permanently closed and that is expected to be demolished, or title
to which is expected to be transferred to another entity for reuse;
and, (C) to achieve national security missions of the Department of
Energy in an efficient and timely manner.'' This provision acknowledges
the diversity and uniqueness of the DOE complex and the need to tailor
worker safety and health programs to fit particular workplaces.
As a general matter, the proposed regulations would achieve the
mandated flexibility by building on the practices and procedures
already being undertaken by contractors as part of integrated safety
management systems. Specifically, proposed Sec. 851.101(c) would
incorporate the essential features of integrated safety management,
including: (1) Defining the work; (2) analyzing the hazards; (3)
identifying a set of standards necessary and sufficient to control the
hazards; (4) implementing the set of standards properly in a manner
tailored to reflect the workplace environment; and (5) providing for
continuous feedback and improvement. Adherence to this approach should
result in the selection of a set of standards tailored to fit the
expected work and hazards and the implementation of those standards in
a manner tailored to reflect actual workplace conditions.
The proposed regulations also would include specific provisions to
address the statutory requirements on flexibility. Proposed Sec.
851.101(a)(2) would require the tailoring of a worker safety and health
program to reflect the activities and hazards in a particular
workplace. Proposed Sec. 851.101(c)(4) would require a worker safety
and health program to provide for tailored implementation of selected
standards. Proposed Sec. 851.101(e) would require a worker safety and
health program to contain special provisions for transitional
workplaces (which would be defined in proposed Sec. 851.3 as
facilities that are, or are expected to be, permanently closed and that
are expected to be demolished, or title to which are expected to be
transferred to another entity for reuse) and national security
workplaces (which would be defined as workplaces where DOE undertakes
national security missions). Examples of transitional workplaces could
include: those sites that are undergoing decontamination, deactivation,
dismantlement, or decommissioning; environmental restoration sites; or
inactive sites where no ongoing operations are being performed beyond
surveillance and maintenance activities.
D. Consistency With Integrated Safety Management
Proposed Sec. 851.101(a) would require contractors to develop
worker safety and health programs. These programs should be established
in a manner that is consistent with the Integration of Environment,
Health and Safety into Work Planning and Execution clause set forth in
the DOE procurement regulations. 48 CFR 952.223-71, 970.5223-1. As
discussed in the preceding sections, the proposed regulations build on
existing contract practices and processes to achieve safe and healthy
workplaces and incorporate the essential features of integrated safety
management. DOE has drafted the proposed regulations to be
complementary to integrated safety management. Accordingly, DOE expects
contractors to comply with the proposed regulations in a manner that
takes advantage of work already done as part of integrated safety
management 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 integrated safety
management properly, little, if any, additional work would be necessary
to establish the worker safety and health program required by the
proposed regulations. Contractors should undertake new analysis and
develop new documents only to the extent existing analysis and
documents are not sufficient for purposes of the proposed regulations.
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 integrated safety management system in place.
E. Worker Safety and Health Program
1. Program
To ensure achievement of the required level of protection, proposed
Sec. 851.100(b) would require the contractor responsible for a
workplace to perform work in accordance with an approved worker safety
and health program for the workplace. Proposed Sec. 851.101(b)(1)
would require the worker safety and health program to provide for
eliminating, limiting or mitigating identified workplace hazards in a
manner that is necessary and sufficient to provide adequate protection
of workers.
Proposed Sec. Sec. 851.101(a) and (d)(1) would require a
contractor to prepare and maintain a single worker safety and health
program that would apply to all the workplaces at a DOE site for which
the contractor was responsible. At a site where there were multiple
contractors responsible for various workplaces at the site, proposed
Sec. 851.101(d)(2)(B) would require the contractors responsible for
covered workplaces at the site to coordinate with each other to ensure
that the worker safety and health programs at the site were integrated
and consistent.
2. Identification and Analysis of Work and Hazards
As part of the process of developing a worker safety and health
program, proposed Sec. 851.101(c)(1) would require a contractor to
identify and analyze: (1)
[[Page 68279]]
The work to be performed; (2) the work environment including designs
and features of facilities, equipment, operations and procedures
important to a safe and healthful workplace; (3) existing and potential
workplace hazards; and (4) the risk of worker injury or illness
associated with the identified workplace hazards. Proposed Sec. 851.3
would define ``workplace hazard'' to mean ``a physical, chemical, or
biological hazard with any potential to cause illness, injury, or death
to a person.''
Proposed Sec. 851.101(c)(1) would require a contractor to identify
and analyze the work and the hazards at the site, facility, activity
and workplace level as appropriate. The proposed regulations do not
contemplate that a contractor would need to conduct a comprehensive
examination of every workplace for which the contractor is responsible
at a site in preparing the worker safety and health program. Rather, a
contractor would address those hazards that are common to an entire
site on a site-wide basis such as fire protection. Then, to the extent
appropriate, a contractor would address the hazards associated with
particular facilities or activities on a facility or activity basis.
Finally, where a particular workplace presented unique circumstances
that might require special attention, a contractor would examine that
workplace. In analyzing hazards, a contractor would focus on
identifying all the hazards that need to be addressed in the worker
safety and health plan rather than producing a quantitative risk
analysis.
In addition, proposed Sec. 851.101(c)(4)(C) would require the
contractor to describe in sufficient detail the extent to which the
program is integrated on a site, facility, activity and workplace
level, taking into account differences and similarities between the
work, hazards, and workplace safety and health standards. An important
part of this description would be the extent of the initial
identification and analysis and how further identification and analysis
would be conducted in particular workplaces to ensure the flow down of
the selected standards and their proper implementation in a manner
tailored to fit particular workplace environments. This description
also would address coordination among worker safety and health programs
at a site with multiple programs. The guidance documents prepared for
integrated safety management systems contain thorough discussions on
identifying and analyzing work and hazards. See, e.g., Integrated
Safety Management System Guide, DOE Guide 450.4-1B (Mar. 1, 2001).
3. Selection of Set of Workplace Safety and Health Standards
Central to the worker safety and health program for a workplace is
the development of a set of ``workplace safety and health standards''
that provide a level of protection at least substantially equivalent to
the level of protection that existed in comparable DOE workplaces in
2002. Proposed Sec. 851.3 would define a ``workplace safety and health
standard'' to mean ``a standard or program which addresses a covered
workplace hazard by requiring conditions, or the adoption or use of one
or more practices, means, methods, operations, or processes, reasonably
necessary or appropriate to provide a safe and healthful covered
workplace.'' With the exception of the beryllium standard established
by 10 CFR part 850, which contractors must continue to comply with,
proposed Sec. 851.101(c)(2) and (3) would permit a contractor to
select any combination of appropriate workplace safety and health
standards that would achieve the required level of protection.
Appendix A to the proposed regulations contains a description of
workplace safety and health standards and programs generally acceptable
for inclusion in a worker safety and health program. DOE has derived
Appendix A from existing DOE Order 440.1A, which sets forth DOE's
expectations for protecting worker safety and health and identifies a
number of generally acceptable worker protection standards and
programs, including: (1) Certain Occupational Health and Safety
Administration (OSHA) standards (29 CFR part 1910); shipyard employment
(29 CFR part 1915); marine terminals (29 CFR part 1917); health and
safety regulations for longshoring (29 CFR part 1918); health and
safety regulations for construction (29 CFR part 1926); and
occupational health and safety standards for agriculture (29 CFR part
1928); (2) American Conference of Governmental Industrial Hygienists'
threshold limit values for exposures to chemical substances, physical
agents and biological substances where they are more protective than
the OSHA standards; (3) certain American National Standards Institute
(ANSI) standards (ANSI Z136.1 Safe Use of Lasers; ANSI Z88.2 Practices
for Respiratory Protection; ANSI Z49.1 Safety in Welding, Cutting and
Allied Processes); (4) the National Fire Protection Association's
standards for fire protection and electrical safety; (5) the American
Society for Mechanical Engineer's standards for boiler and pressure
safety; and (6) programs in areas such as firearms safety, explosives
safety, industrial hygiene, occupational medicine, and motor vehicle
safety.
Appendix A would serve as a guidance document. With the exception
of the beryllium standard, the proposed regulations do not mandate the
selection of any particular standard or program, including those
described in Appendix A. Rather, the proposed regulations obligate a
contractor to focus on the objective of safe and healthy workplaces and
to select a set of standards and programs that will achieve a level of
protection at least substantially equivalent to the level of protection
that existed in comparable DOE workplaces in 2002. DOE would be
responsible for reviewing the set of standards and programs that a
contractor proposed to select as part of the approval of the
contractor's worker safety and health program and for assuring itself
those standards and programs would meet that level of protection.
Proposed Sec. 851.101(c)(3)(A) would require the incorporation of
chronic beryllium disease prevention programs approved under 10 CFR
part 850 into the set of workplace safety and health standards. DOE is
proposing several technical and conforming amendments to the current
beryllium regulations in part 850 which would align that part with the
proposed worker safety and health regulations. The scope of Sec. 850.1
would be amended to state that 10 CFR part 850 provides for
establishment of a chronic beryllium disease prevention program (CBDPP)
that supplements and is deemed an integral part of the worker safety
and health program under 10 CFR part 851. The enforcement provision in
Sec. 850.4 would also be amended to state that DOE may take
appropriate steps pursuant to 10 CFR part 851 to enforce compliance by
contractors with part 850 and any DOE-approved CBDPP. This would allow
DOE to assess civil penalties under 10 CFR part 851 for violations of
the CBDPP under 10 CFR part 850.
4. Implementation
In order for the selected workplace safety and health standards to
achieve the required level of protection, the contractor responsible
for a workplace must implement them properly in a manner tailored to a
particular workplace environment. Proposed Sec. 851.101(c)(4) would
require the worker safety and health program to describe how work will
be performed in accordance with the selected workplace safety and
health standards. This description would identify how the
[[Page 68280]]
contractor responsible for a workplace would: (1) Select and use
procedures, controls, and work processes in a tailored manner in
particular workplaces to implement the selected standards; and (2)
select controls on the basis of the following hierarchy in descending
order: engineering controls, administrative controls, work practices,
and personal protective equipment. Where appropriate, the program might
identify specific procedures, controls and work processes and describe
how these procedures, controls and work processes would be used to
achieve a tailored implementation. At a minimum, proposed Sec.
851.101(c)(4)(C) would require a description of the process by which
the set of selected workplace safety and health standards would flow
down to a particular workplace, including how a contractor would select
the procedures, controls, and work processes to implement the standards
in a tailored manner for particular covered workplaces. This
description would address the extent to which the flowdown might
require additional analysis at the facility, activity and workplace
levels. In addition, proposed Sec. 851.101(c)(4)(C) would require a
description of how the program was integrated on site, facility,
activity and workplace levels, taking into account differences and
similarities between the work, hazards, and workplace safety and health
standards and, if applicable, coordinated with other worker safety and
health programs at the site.
Implementation should focus on workplace hazards that are more
likely to cause serious harm to workers. Accordingly, proposed Sec.
851.101(c)(6) would require the worker safety and health program to
prioritize the abatement of hazards on the basis of a qualitative
evaluation of the relative risk to workers posed by identified
workplace hazards. In addition, proposed Sec. 851.101(c)(7) would
require a worker safety and health program to address how
implementation would incorporate certain features into the worker
safety and health program. These features include line management
commitment, information and training, ongoing workplace monitoring and
observation, medical surveillance and applicability to subcontractors.
5. Evaluation and Feedback
A key element for a successful worker safety and health program is
feedback and continuous improvement. Proposed Sec. 851.101(c)(5) would
require a contractor to describe how it will update and maintain the
program on a continuous basis. The contractor would describe its
procedures and processes for feedback activities such as lessons
learned, training, updating, document control, and configuration
control that may support a worker safety and health program. Moreover,
the process of defining the scope of work, analyzing the hazards
associated with the work, and identifying a set of standards should be
an iterative process performed continually to provide feedback and
improvement. This iterative process would provide a contractor with the
information necessary to make continual changes and improvements to all
aspects of the program and to comply with proposed Sec. 851.102(c)
that would require a contractor to evaluate and update a worker safety
and health program to reflect changes in the work and the hazards. In
addition to contractor initiated revisions, proposed Sec.
851.102(c)(3) would require a contractor to modify a worker safety and
health program to incorporate any changes, conditions, or workplace
safety and health standards directed by DOE.
F. Submission, Approval and Revision of Worker Safety and Health
Programs
1. DOE Approval
Beginning one year after publication of the final rule, proposed
Sec. 851.102(a) would prohibit work from being performed at a DOE
workplace unless the Program Secretarial Officer (PSO) (which proposed
Sec. 851.3 would define as ``the Assistant Secretary, Deputy
Administrator, Program Office Director, or equivalent DOE official who
has primary line management responsibility for a contractor) had
approved the worker safety and health program for the workplace on the
basis of a determination that the program would achieve a level of
protection at least substantially equivalent to the level of protection
that existed in comparable DOE workplaces in 2002. A worker protection
evaluation report would document the approval and determination. As
part of the approval process, the PSO could direct the contractor to
modify the worker safety and health program.
To approve the program, DOE would review the content and quality of
the worker safety and health program for a DOE site to determine
whether the rigor and detail were appropriate for the complexity and
hazards expected at workplaces located at the site. DOE also would
review the sufficiency of the analysis of work and hazards that
supported the program. After approval of a program, DOE would focus its
attention on how well a contractor performed in providing safe and
healthy workplaces, rather than on the details of how the contractor
developed the program.
2. Submittal and Compliance Dates
Proposed Sec. 851.102(b) would require a contractor to submit a
worker safety and health program to DOE for approval 180 days after
publication of the final rule. This date would give a DOE contractor
six months to submit a plan after the issuance of the final rule. The
Act provides that the regulations shall take effect one year after the
promulgation date of the regulations. DOE would not undertake
enforcement actions pursuant to this rule on the basis of conduct prior
to the effective date. DOE believes these dates should give contractors
ample time to submit programs for approval and begin implementation
since contractors already have a contractual obligation to have worker
protection programs that should satisfy all or most of the requirements
set forth in the proposed regulations.
3. Annual Update
Proposed Sec. 851.102(c) would require a contractor to maintain
the worker safety and health program for a workplace by evaluating and
updating the worker safety and health program to reflect changes in the
work and the hazards. On an annual basis, the contractor would have to
submit either an updated worker safety and health program to DOE for
approval or a letter stating that no changes were necessary in the
currently approved worker safety and health program. Annual updates are
an important tool in meeting the requirement for continuous feedback
and evaluation and allow a contractor to notify DOE of changes
occurring during the past year such as new work to be performed,
changes in the facility, building of new facilities or decommissioning
of old facilities, associated hazards and performance problems. Only
those changes in the workplace that have a potential to impact the
worker safety and health program would need to be reflected in the
worker safety and health program.
G. Guidance Documents
Proposed Sec. 851.8 would explicitly limit the potential role of a
``guidance document'' as a source of enforceable worker safety and
health requirements. DOE would continue to issue guidance documents to
assist contractors in developing their worker safety and health
programs, including selecting a set of standards and describing
implementing procedures, controls, and work processes, but contractors
would
[[Page 68281]]
not be obligated to use them. Rather, contractors' only obligation
would be to comply with the regulations themselves.
Proposed Sec. 851.8 would broadly define the term ``guidance
document'' to include any document that sets forth information related
to implementing or otherwise complying with a requirement set forth in
the proposed regulations and that DOE has not adopted as a legally
binding requirement through notice and comment rulemaking under the
Administrative Procedure Act (5 U.S.C. 553). This definition would
include proposed Appendices A and B, DOE and industry standards, and
any document in the DOE directive system or other informal statement of
policy regardless of which DOE official approved or signed the
document. Use of the terms ``shall'' or ``must'' in a guidance document
does not change the non-mandatory character and effect of the document.
Proposed Sec. 851.8(a) would make clear to contractors and DOE
officials that guidance documents do not create legally enforceable
requirements. Proposed Sec. 851.8(b) would prohibit DOE officials from
inspecting or investigating a DOE site to identify violations of the
proposed regulations by determining whether a contractor's actions or
omissions were consistent with a guidance document. DOE intends that
such inspections and investigations will, ordinarily, focus on whether
a contractor's actions or omissions comply with the requirements under
its worker safety and health program, or on rare occasions, on whether
such actions or omissions comply with requirements of a compliance
order issued for cause by the Secretary under Sec. 851.6. Proposed
Sec. 851.8(c) would identify the limited circumstances in which a
guidance document can give rise to an enforceable requirement.
Specifically, a guidance document can give rise to an enforceable
requirement only to the extent it is explicitly: (1) included by a
contractor in the set of workplace safety and health standards
identified pursuant to Sec. 851.101(c)(3)(B) of the proposed
regulations; or (2) selected or used by a contractor as a procedure,
control, or work process to perform work in a tailored manner for
particular covered workplaces in accordance with Sec. 851.101(c)(4) of
the proposed regulations. Only in these circumstances may DOE pursue an
enforcement action on the basis of action inconsistent with a guidance
document and, in these circumstances, DOE would base the enforcement
action on a provision of the contractor's plan and not the guidance
document itself.
Proposed Sec. 851.8 would serve two purposes. First, by precluding
imposition of a de facto set of requirements in the guise of guidance,
it would ensure that, as required by section 234C(a)(3) of the AEA,
DOE's implementing regulations include flexibility to tailor
implementation of such regulations to reflect activities and hazards
associated with a particular work environment. Put more succinctly,
proposed Sec. 851.8 would reinforce site-specific integrated safety
management as the guiding principle for the proposed regulations.
Second, proposed Sec. 851.8 is responsive to potential contractor
criticism that reliance on generally applicable, informal policy
directives in the area of worker safety and health instead of duly
promulgated rules under the Administrative Procedure Act promotes
regulatory instability across the DOE complex which is antithetical to
effective integrated safety management and to accomplishment of DOE's
national security and research missions. Proposed Sec. 851.8 would
thus reinforce the shift from a DOE directive-driven regime
characterized by informal DOE policies to a regulatory regime
characterized by generally applicable rules that have the force and
effect of law with respect to DOE officials, as well as with respect to
regulated contractors. Moreover, proposed Sec. 851.8 recognizes the
responsibility and obligation of a contractor, in the first instance,
to select the procedures, controls, and work processes to use in
achieving safe and healthy workplaces and implementing its worker
safety and health program.
H. Workers Rights
Workers at DOE sites currently have a number of rights related to
assuring a safe and healthy workplace. Proposed Sec. 851.103 would
list these rights and make clear that workers may exercise these rights
without fear of reprisal. Specifically, the proposed regulations would
maintain the rights of workers to: (1) Participate in activities
described in this section on official time; (2) have access to DOE
safety and health publications, the DOE-approved worker safety and
health program for the DOE site and the standards, controls and
procedures applicable to the covered workplace; (3) observe monitoring
or measuring of hazardous agents; (4) have access to monitoring and
measuring results and be notified when such results indicate the worker
was overexposed to hazardous materials; (5) accompany DOE personnel
during an inspection of the workplace; (6) request and receive results
of inspections and accident investigations; (7) express concerns
related to worker safety and health; (8) decline to perform an assigned
task because of a reasonable belief that, under the circumstances, the
task poses an imminent risk of death or serious bodily harm to the
worker coupled with a reasonable belief that there is insufficient time
to seek effective redress through the normal hazard reporting and
abatement procedures; (9) stop work, through the worker's supervisor,
when the worker discovers employee exposures to imminent danger
conditions or other serious hazards, provided that any stop work
authority must be exercised in a justifiable and responsible manner in
accordance with established procedures; and (10) have access to an
appropriate safety and health poster that informs the worker of
relevant rights and responsibilities.
I. Enforcement
1. Civil Penalties
Section 234Cb. of the AEA provides that ``a person (or any
subcontractor or supplier of the person) who has entered into an
agreement of indemnification under section 170d. (or any subcontractor
or supplier of the person) that violates (or is the employer of a
person that violates) any regulation promulgated under [section 234C]
shall be subject to a civil penalty of not more than $70,000 for each
such violation.'' For continuing violations, section 234C provides that
each day of the violation shall constitute a separate violation for the
purposes of computing the civil penalty to be imposed.
Proposed Sec. 851.4(c) would implement this statutory provision by
making a contractor whose contract with DOE contains an indemnification
agreement (or any subcontractor or supplier thereto) and who violates
(or whose employee violates) any requirement of the proposed
regulations subject to a civil penalty of not more than $70,000 for
each such violation. In the case of a continuing violation, each day of
the violation would constitute a separate violation for the purpose of
computing the amount of the civil penalty.
2. Contract Fee Reductions
Section 234Cc. of the AEA requires DOE to include provisions in DOE
contracts for an appropriate reduction in the fees or amounts paid to
the contractor if the contractor or a contractor employee violates the
regulations required by section 234C. The Act requires these provisions
to be included in each DOE contract with a contractor who has entered
into an
[[Page 68282]]
agreement of indemnification under section 170d. of the AEA (the Price-
Anderson Act). The contract provisions must specify the degrees of
violations and the amount of the reduction attributable to each degree
of violation.
DOE is implementing this statutory mandate to include provisions
for the reduction in fees in contracts for violations of this part
pursuant to the contract's Conditional Payment of Fee clause. Most DOE
management and operating contracts currently contain such a clause
providing for reductions of earned fee, fixed fee, profit, or share of
cost savings that may otherwise be payable under the contract if
performance failures relating to environment, safety and health occur.
See 48 CFR 970.5215-3, Conditional Payment of Fee, Profit, or
Incentives (applicable to DOE management and operating contracts and
other contracts designated by the Procurement Executive). DOE proposed
to amend this clause to set forth the specific criteria and conditions
that may precipitate a reduction of earned or fixed fee, profit, or
share of cost savings under the contract. The clause would establish
reduction ranges that correlate to three specified degrees of
performance failures relating to environment, safety and health. See 66
FR 8560 (Feb. 1, 2001) (notice of proposed rulemaking). In the final
rule, DOE intends to clarify that the term ``environment, health and
safety'' includes matters relating to ``worker health and safety'' and
to apply the same reduction ranges and degrees of performance failure
to worker safety and health. In a parallel provision, proposed Sec.
851.4(b) also would implement this statutory mandate by making a
contractor who fails to comply with the requirements of the general
rule in proposed Sec. 851.100 subject to a reduction in fees or other
payments under a contract with DOE pursuant to the contract's
Conditional Payment of Fee clause.
3. Relationship of Civil Penalties and Contract Fee Reductions
As a general matter, DOE intends to use civil penalties as the
remedy for most violations where DOE may elect between remedies. DOE
expects to invoke the provisions for reducing contract fees only in
cases involving especially egregious violations or that indicate a
general failure to perform under the contract with respect to worker
safety and health. Such violations would call into question a
contractor's commitment and ability to achieve the fundamental
obligation of providing safe and healthy workplaces for workers because
of factors such as willfulness, repeated violations, death, serious
injury, patterns of systemic violations, flagrant DOE-identified
violations, repeated poor performance in an area of concern, or serious
breakdown in management controls. Because such violations indicate a
general failure to perform under the contract with respect to worker
safety and health where both remedies are available and DOE elects to
use a reduction in fee, DOE would expect to reduce fees substantially
under the Conditional Payment of Fee clause.
4. Limitations on Penalties
Section 234Cd. imposes three specific limitations on DOE's
authority to seek monetary remedies. Specifically, DOE may not (1) both
reduce contract fees and assess civil penalties for the same violation
of a worker protection requirement; (2) assess both civil penalties
authorized by section 234A (nuclear safety and radiological protection
regulations) and by section 234C (worker safety and health regulations)
for the same violation; and, (3) with respect to those nonprofit
contractors specifically listed as exempt from civil penalties for
nuclear safety violations in subsection d. of section 234A of the AEA,
assess an aggregate amount of civil penalties and contractor penalties
in a fiscal year in excess of the total amount of fees paid by DOE to
that nonprofit entity in that fiscal year. Proposed Sec. Sec.
851.4(d), (e) and (f) sets forth these statutory limitations.
5. Enforcement Procedures
Proposed subpart C of part 851 sets forth the administrative
procedures DOE would use to issue enforcement actions and impose civil
penalties. In general, DOE has based these procedures on the existing
procedural regulations for nuclear safety enforcement in 10 CFR part
820, which has provided the basis for implementing a successful nuclear
safety compliance program since the mid 1990s. See Procedural Rules for
DOE Nuclear Activities, 10 CFR part 820, 58 FR 43680 (Aug. 17, 1993),
amended, 62 FR 52481 (Oct. 8, 1997) and 65 FR 15220 (Mar. 22, 2000).
The proposed procedures would provide for investigations and
inspections, subpoenas, informal conferences, enforcement letters,
settlements, consent orders, preliminary notices of violations, and
final notices of violations. Contractors would take administrative
appeals of final notices of violations to DOE's Office of Hearings and
Appeals rather than an administrative law judge as provided for in 10
CFR part 820. Unlike section 234A of the AEA, section 234C does not
provide for the use of administrative law judges and other procedural
mechanisms. A decision of the Office of Hearings and Appeals would
exhaust a contractor's administrative remedies with respect to a final
notice of violation and would constitute a final order of DOE.
The proposed regulations would assign responsibility for carrying
out these enforcement procedures to the ``Director,'' which proposed
Sec. 851.3 would define as ``the DOE Official to whom the Secretary
has assigned the authority to investigate the nature and extent of
compliance with the requirements of'' the proposed regulations. DOE
expects this function would be assigned to the current Director of the
Office of Price-Anderson Enforcement in the Office of Environment,
Health and Safety, who is the person to whom the Secretary has assigned
the responsibility for enforcing the DOE nuclear safety regulations in
10 CFR parts 820, 830, and 835.
While proposed Sec. 851.201(j) would permit the Director to send
an enforcement letter to a contractor to communicate DOE's expectations
for compliance with the proposed regulations, the primary
responsibility lies with the Program Secretarial Officer for ensuring
that a contractor has an approved worker safety and health program that
is adequate to achieve a level of protection at least substantially
equivalent to the level of protection that existed in 2002 for DOE
workplaces comparable to those covered workplaces addressed by the
program and that has sufficient detail to allow the Director to conduct
inspections or investigations to determine compliance. Proposed Sec.
851.201(j) would make clear that an enforcement letter may not create
the basis for any legally enforceable requirement under this part.
With respect to exercising certain functions that might be
interpreted as giving direction to DOE's National Nuclear Security
Administration's contractors, proposed Sec. 851.206 would make the
Administrator of the NNSA responsible for exercising such functions.
These functions would be signing and issuing subpoenas, orders to
compel attendance, orders disclosing information obtained during an
investigation, preliminary notices of violation and final notices of
violation. In taking such actions, the NNSA Administrator would
consider the Director's recommendations. A similar division of
responsibilities has been made for enforcing the DOE nuclear safety
regulations under part 820. See Memorandum of Understanding between
NNSA and the Assistant
[[Page 68283]]
Secretary for Environment, Health and Safety, Jan. 12, 2001,
http://tis-nt.eh.doe.gov/enforce/handbks/20010108mou.pdf.
Under both part 820 and proposed part 851, the Director would continue to
be able to sign enforcement letters and consent orders applicable to NNSA
contractors.
6. General Statement of Enforcement Policy
As a guidance document for enforcing this rule, DOE is proposing to
issue a general statement of enforcement policy as Appendix B. The
proposed policy would set forth the general framework which DOE would
follow to ensure compliance with the proposed regulations and to issue
enforcement actions and exercise civil penalty authority. The proposed
policy would not be binding and would not create any legally
enforceable requirements pursuant to this part. It would only provide
guidance as to how DOE generally expects to seek compliance with the
proposed regulations and to deal with any violations of the proposed
regulations.
The proposed policy is intended to achieve dual purposes of
promoting proactive behavior on the part of DOE contractors to improve
worker safety and health performance and of deterring contractors from
violating the proposed regulations. The proposed policy would encourage
DOE contractors to self-identify, report and correct worker safety and
health noncompliances and would provide adjustment factors to escalate
or mitigate civil penalties on the basis of the nature of the violation
and the behavior of the contractor.
To accomplish these purposes, the proposed policy would incorporate
the basic outlines of DOE's well-established nuclear safety enforcement
program in part 820. The enforcement policy would utilize the part 820
severity levels I, II, and III and related adjustment factors. These
severity levels and adjustment factors in the policy incorporate
concepts OSHA uses in its enforcement program including whether a
violation is serious, other-than-serious, willful, repeated, or de
minimis.
Specifically, the proposed policy would provide guidance on the
treatment of violations in three severity levels. A severity level I
violation would be a serious violation, which would involve the
potential that death or serious physical harm could result from a
condition in a workplace, or from one or more practices, means,
methods, operations, or processes used in connection with a workplace.
A severity level I violation would be subject to a base civil penalty
of up to 100% of the maximum base civil penalty or $70,000.
A severity level II violation is an other-than-serious violation,
which would involve a potential that the most serious injury or illness
that might result from a hazardous condition cannot reasonably be
predicted to cause death or serious physical harm to exposed employees
but does have a direct relationship to their safety and health. A
severity level II violation would be subject to a base civil penalty up
to 50% of the maximum base civil penalty or $35,000.
A severity level III violation is a de minimis violation. DOE may
evaluate minor noncompliances to determine if generic or specific
problems exist and consider them in the aggregate as a more serious
violation. A severity level III violation would be subject to a base
civil penalty up to 10% of the maximum base civil penalty or $7,000.
DOE could modify or remit these base civil penalties consistent
with mitigation and adjustment factors set forth in the proposed
policy. Factors include the gravity, circumstances, and extent of the
violation or violations and, with respect to the violator, any history
of prior similar violations and the degree of culpability and
knowledge. These factors are the same as those used for part 820 and
are similar to the adjustment factors in the proposed Conditional
Payment of Fee rule but the factors in the proposed fee rule include
additional focus on performance under the contract.
Regarding the factor of ability of DOE contractors to pay the civil
penalties, the policy provides that it is not DOE's intention that the
economic impact of a civil penalty would put a DOE contractor out of
business. The policy would also provide that when a contractor asserts
that it cannot pay the proposed penalty, DOE would evaluate the
relationship of affiliated entities to the contractor such as parent
corporations.
Based on the adjustment factors relating to a noncompliance, DOE
could mitigate a civil penalty from the statutory maximum of $70,000
per violation per day. Mitigation factors used to reduce a civil
penalty include whether a DOE contractor promptly identified and
reported a violation and took effective corrective actions. Factors
used to increase penalties (but not over the statutory maximum of
$70,000) would include whether a violation is repeated or involves
willfulness, death, serious physical harm, patterns of systemic
violations, flagrant DOE-identified violations, repeated poor
performance in an area of concern, or serious breakdowns in management
controls.
As noted previously, when both remedies are available, DOE may
consider a reduction in contract fees if a violation is especially
egregious or indicates a general failure to perform under the contract
with respect to worker safety and health. In determining whether to
refer a violation to the appropriate DOE official responsible for
administering reductions in fee pursuant to the Conditional Payment of
Fee clause, the Director will generally focus on the factors stated
above, such as willfulness, repeated violations, death, serious injury,
patterns of systemic violations, flagrant DOE-identified violations,
repeated poor performance in an area of concern, or serious breakdown
in management controls. In cases where DOE may elect between civil
penalties and a contract penalty, these kinds of factors may also lead
DOE to consider a reduction in fee if they raise doubts about a
contractor's overall performance or ability to perform its contract
with proper regard for worker safety and health.
In proposing the base civil penalties for the types of violations
in this policy, DOE set the starting base amounts at levels higher than
the average OSHA penalty for several reasons. DOE's activities are
conducted by large, experienced management and operating contractors
and their subcontractors and suppliers. Through the contractual
relationships that DOE has with these entities, DOE is in constant
dialogue concerning the management and operation of DOE's sites and the
performance of its governmental missions. DOE has the authority to
require these contractors to develop their own worker safety and health
programs for DOE approval and to select standards tailored to the work
and the hazards. Moreover, DOE may unilaterally direct contractors to
include various provisions in their programs. Thus, the Director is in
a position to enforce against these programs and can provide incentives
for proactive compliance. The policy strongly encourages self-
identification of violations, self-reporting, tracking systems and
corrective action programs. Moreover, DOE also has the authority and
flexibility to coordinate and choose either a civil penalty or fee
reduction remedy based on the enforcement policy and the fee reduction
contract clause. The proposed enforcement structure of this rule fits
the DOE complex better than would a generic system as found in OSHA's
enforcement programs.
Finally, as a tool for implementing the enforcement policy, DOE
intends to
[[Page 68284]]
provide a voluntary computerized database system to allow contractors
to report worker safety and health noncompliances. DOE intends to
enhance its Noncompliance Tracking System (NTS), currently used for
reporting of noncompliances of the DOE nuclear safety requirements, to
permit its use for reporting noncompliances with this rule. DOE will
develop appropriate reporting thresholds unique to worker safety and
health to assure that the system will focus on issues with the greatest
potential consequences for worker safety and health.
J. Scope of the Rule
1. DOE Contractors and DOE-Operated Workplaces
Proposed Sec. 851.1 would establish the scope of the proposed
regulations as governing the conduct of activities by or on behalf of
DOE. The regulations would thus apply to activities performed by DOE
contractors and by DOE at covered workplaces at DOE sites, except for
workplaces regulated by the naval nuclear propulsion program or by the
Occupational Safety and Health Administration (OHSA). Proposed Sec.
851.3 would define a ``covered workplace'' as a place where work is
conducted by or on behalf of DOE where DOE has oversight responsibility
for safety and health and would define ``DOE site'' as a DOE-owned or
leased area or location where DOE activities and operations are
performed at one or more facilities or locations. While the proposed
regulations would obligate a contractor to ensure its employees
performed work in accordance with the proposed regulations, the
proposed regulations would not make individual employees subject to
enforcement actions or the imposition of penalties.
DOE is proposing to limit the scope of the proposed regulations to
DOE sites. However, DOE invites public comment concerning whether the
proposed regulations also should cover activities performed away from a
DOE site, such as transportation.
DOE is also proposing to apply the proposed regulations to covered
workplaces operated by DOE. Proposed Sec. 851.9 would require that for
DOE-operated workplaces, DOE must ensure that work is performed
consistent with the proposed regulations including the establishment,
maintenance and implementation of a worker safety and health program.
Proposed Sec. 851.9 would apply to government-owned, government-
operated facilities related to DOE's mission, including certain
laboratories or operations conducted by DOE, as well as general federal
government office workplaces in buildings in Washington DC, Germantown,
Maryland, or DOE site offices in the field. Thus, this rule is intended
to provide protection to workers who are contractor employees and to
workers who are federal employees.
Section 234C mandates DOE to promulgate regulations to cover DOE
facilities that are operated by contractors covered by agreements of
indemnification under the Price-Anderson Act, 42 U.S.C. 2210(d). The
proposed regulations go beyond that mandate to continue DOE's current
practice of exercising its statutory authority to direct its
contractors to perform work in a manner that protects the safety and
health of workers, without regard to whether the contractor is covered
by an agreement of indemnification. As a practical matter, the Price-
Anderson Act requires DOE to include an agreement of indemnification in
every contract that has the potential to involve any activity with any
risk of a nuclear incident. As a result, nearly all DOE contracts
include an agreement of indemnification, with the exception of
contracts relating to the petroleum strategic reserves sites, power
administrations, and certain nonnuclear laboratories. While section
234C is not the source of DOE's authority to promulgate the proposed
regulations, it is the source of DOE's authority to impose civil
penalties. Thus, proposed Sec. 851.4(c) would limit the imposition of
civil penalties to contractors covered by an agreement of
indemnification. Proposed Sec. 851.4(b) would not limit contractual
enforcement actions to contractors covered by an agreement of
indemnification since section 234C is not the source of DOE's authority
to use contract mechanisms to achieve safe and healthy workplaces.
The proposed regulations also would continue DOE's current practice
of exercising its statutory authority to direct its contractors to
perform work in a manner that protects the safety and health of
workers, without regard to whether the workers are engaged in a nuclear
or nonnuclear activity. Section 234C is not limited to nuclear
activities in mandating the promulgation of worker protection
regulations.
2. OSHA Exclusion
DOE currently exercises its statutory authority broadly throughout
the DOE complex to provide safe and healthful workplaces. In a few
cases, however, DOE has elected not to exercise its authority and to
defer to regulation by OSHA under the Occupational Safety and Health
(OSH) Act (29 U.S.C. 651 et seq.). Proposed Sec. 851.2(a)(1) would
continue the status quo by not covering those facilities regulated by
OSHA on December 2, 2002, the date the NDAA was enacted. The OSHA-
regulated facilities are: Western Area Power Administration;
Southwestern Power Administration; Southeastern Power Administration;
Bonneville Power Administration; National Energy Technology Laboratory
(NETL), Morgantown, WV; National Energy Technology Laboratory (NETL),
Pittsburgh, PA; Strategic Petroleum Reserve (SPR); National Petroleum
Technology Office; Albany Research Center; Naval Petroleum & Oil Shale
Reserves in CO, UT, & WY; and Naval Petroleum Reserves in California.
See 65 FR 41492 (July 5, 2000).
3. Naval Reactors
Section 234C explicitly excludes activities conducted under the
authority of the Director, Naval Nuclear Propulsion, pursuant to
Executive Order 12344, as set forth in Public Law 106-65. Accordingly,
proposed Sec. 851.2(a)(2) would exclude workplaces regulated by Naval
Reactors.
4. Radiological Hazards
Proposed Sec. 851.2(b) would exclude radiological hazards from the
hazards covered by the proposed regulations to the extent they are
already regulated by the DOE nuclear safety requirements in 10 CFR
parts 820, 830, and 835. These existing rules already deal with
radiological hazards in a comprehensive manner through methods such as
the Quality Assurance Program Plan, the Safety Basis, the Documented
Safety Analysis, and the Radiation Protection Program Plan. The
proposed regulations are intended to complement the nuclear safety
requirements. Personnel responsible for implementing worker protection
and nuclear safety requirements would be expected to coordinate and
cooperate in instances where the requirements overlapped. The two sets
of requirements should be integrated and applied in a manner that
guards against unintended results and provides reasonable assurance of
adequate worker protection.
K. Information Requirements
Proposed Sec. 851.5 would require a contractor (1) to maintain
complete and accurate records as necessary to substantiate compliance
with the proposed regulations; (2) to neither conceal nor destroy any
relevant information concerning noncompliance or potential
noncompliance with the proposed regulations; and (3) to
[[Page 68285]]
maintain complete and accurate information in all material respects.
Proposed Sec. 851.5(d) would make clear that a contractor must
safeguard classified, confidential, and controlled information,
including Restricted Data or national security information, in
accordance with the applicable provisions of federal statutes and the
rules, regulations, and orders of any federal agency.
DOE considered but decided not to propose new reporting
requirements in support of the proposed regulations. DOE will continue
to use contractual provisions to require contractors to report worker
safety and health information which may be used to assess the
performance and effectiveness of worker safety and health programs.
This information is generally maintained in large, specialized
databases which necessitate management flexibility. The primary
directive on environment, safety and health reporting that DOE includes
in contracts is DOE Order 231.1A. This order requires contractors to
record, maintain and post records related to occupational fatalities,
injuries, and illnesses occurring among their employees (and
subcontractors) arising out of work primarily performed at DOE-owned or
-leased facilities. Other relevant reporting directives include
occurrence reporting and processing of operations information;
performance indicators and analysis of operations information; and
accident investigations.
DOE recently has taken steps to eliminate unnecessary reporting
requirements related to the subject matter of the proposed regulations.
DOE remains committed to reducing the reporting burden where reporting
requirements do not contribute to worker safety and health.
Accordingly, DOE requests comments on how the reporting burden could be
further minimized consistent with that objective. Comments should
specify the reporting requirements that give rise to the burden and
discuss the reasons for their elimination or suggest how they could be
modified to minimize the burden without impairing worker safety and
health.
L. Compliance Order
Proposed Sec. 851.6 would make clear that the Secretary of Energy
has the authority to issue a Compliance Order that identifies a
situation that violates, potentially violates, or otherwise is
inconsistent with a requirement of this part; mandates a remedy, work
stoppage, or other action; and states the reasons for the remedy, work
stoppage, or other action. The compliance order would be a final order
that is effective immediately. This mechanism is nearly identical to
the provisions in 10 CFR 820.41 and is intended to operate in a similar
manner.
M. Interpretations by Office of General Counsel
Proposed Sec. 851.7 would make clear the Office of the General
Counsel would have sole responsibility for formulating and issuing any
interpretation concerning a requirement in the proposed regulations.
Any other written or oral response to any written or oral question
would not constitute an interpretation or basis for action inconsistent
with the proposed regulations.
III. Procedural Review Requirements
A. Review Under Executive Order 12866
Today's proposed regulatory action has been determined to be a
``significant regulatory action'' under Executive Order 12866,
``Regulatory Planning and Review'' (58 FR 51735, October 4, 1993), as
amended by Executive Order 13258 (67 FR 9385, February 26, 2002).
Accordingly, DOE submitted this notice of proposed rulemaking to the
Office of Information and Regulatory Affairs of the Office of
Management and Budget, which has completed its review.
B. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, Section 3(a) of Executive Order 12988,
``Civil Justice Reform'' (61 FR 4779, February 7, 1996) imposes on
Federal agencies the general duty to adhere to the following
requirements: eliminate drafting errors and needless ambiguity, write
regulations to minimize litigation, provide a clear legal standard for
affected conduct rather than a general standard, and promote
simplification and burden reduction. Section 3(b) requires Federal
agencies to make every reasonable effort to ensure that a regulation,
among other things: clearly specifies the preemptive effect, if any,
adequately defines key terms, and addresses other important issues
affecting the clarity and general draftsmanship under guidelines issued
by the Attorney General. Section 3(c) of Executive Order 12988 requires
Executive agencies to review regulations in light of applicable
standards in Section 3(a) and Section 3(b) to determine whether they
are met or it is unreasonable to meet one or more of them. DOE has
completed the required review and determined that, to the extent
permitted by law, the proposed rule meets the relevant standards of
Executive Order 12988.
C. Review Under Executive Order 13132
Executive Order 13132 (64 FR 43255, August 10, 1999), imposes
certain requirements on agencies formulating and implementing policies
or regulations that preempt State law or that have federalism
implications. Agencies are required to examine the constitutional and
statutory authority supporting any action that would limit the
policymaking discretion of the States and carefully assess the
necessity for such actions.
Today's regulatory action has been determined not to be a ``policy
that has federalism implications,'' that is, it does not have
substantial direct effects on the states, on the relationship between
the national government and the states, nor on the distribution of
power and responsibility among the various levels of government under
Executive Order 13132 (64 FR 43255, August 10, 1999). Accordingly, no
``federalism summary impact statement'' was prepared or subjected to
review under the Executive Order by the Director of the Office of
Management and Budget.
D. Review Under Executive Order 13175
Under Executive Order 13175 (59 FR 22951, November 6, 2000) on
``Consultation and Coordination with Indian Tribal Governments,'' DOE
may not issue a discretionary rule that has ``tribal implications'' and
imposes substantial direct compliance costs on Indian tribal
governments. DOE has determined that the proposed rule would not have
such effects and concluded that Executive Order 13175 does not apply to
this proposed rule.
E. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
requires that an agency prepare an initial regulatory flexibility
analysis for any regulation which a general notice of proposed
rulemaking is required, unless the agency certifies that the rule, if
promulgated, will not have a significant economic impact on a
substantial number of small entities (5 U.S.C. 605(b)).
Today's proposed regulation would establish DOE's requirements for
worker safety and health at DOE sites. The contractors who manage and
operate DOE facilities would be principally responsible for
implementing the rule requirements. DOE considered whether these
contractors are ``small businesses,'' as that term is defined in
[[Page 68286]]
the Regulatory Flexibility Act's (5 U.S.C. 601(3)). The Regulatory
Flexibility Act's definition incorporates the definition of ``small
business concern'' in the Small Business Act, which the Small Business
Administration (SBA) has developed through size standards in 13 CFR
part 121. The DOE contractors subject to the proposed rule exceed the
SBA's size standards for small businesses. In addition, DOE expects
that any potential economic impact of this proposed rule on small
businesses would be minimal because DOE sites perform work under
contracts to DOE or the prime contractor at the site. DOE contractors
are reimbursed through their contracts with DOE for the costs of
complying with DOE safety and health program requirements. They would
not, therefore, be adversely impacted by the requirements in this
proposed rule. For these reasons, DOE certifies that today's proposed
rule, if promulgated, would not have a significant economic impact on a
substantial number of small entities, and therefore, no regulatory
flexibility analysis has been prepared. See 68 FR 7990 at III.1. and
III.1.c. (February 19, 2003).
F. Review Under the Paperwork Reduction Act
The information collection provisions of this proposed rule are not
substantially different from those contained in DOE contracts with DOE
prime contractors covered by this rule and were previously approved by
the Office of Management and Budget (OMB) and assigned OMB Control No.
1910-5103. That approval covered submission of a description of an
integrated safety management system required by the Integration of
Environment, Health and Safety into Work Planning and Execution clause
set forth in the DOE procurement regulations. 48 CFR 952.223-71 and
970.5223-1, 62 FR 34842, 34859-60 (June 17, 1997). If contractors at a
DOE site fulfill their contractual responsibilities for integrated
safety management properly, the worker safety and health program
required by the proposed regulations should require little if any new
analysis or new documents to the extent that existing analysis and
documents are sufficient for purposes of the proposed regulations.
Accordingly, no additional Office of Management and Budget clearance is
required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.) and the procedures implementing that Act, 5 CFR 1320.1 et seq.
G. Review Under the National Environmental Policy Act
DOE currently implements its broad authority to regulate worker
safety and health through internal DOE directives incorporated into
contracts to manage and operate DOE facilities, contract clauses and
DOE regulations. This proposed rule would implement the statutory
mandate to promulgate worker safety and health regulations for DOE
facilities that would provide a level of protection for workers at DOE
facilities that is substantially equivalent to the level of protection
currently provided to such workers and to provide procedures to ensure
compliance with the rule. DOE anticipates that the contractor's work
and safety programs required by this regulation would be based on
existing programs and that this rule would generally not require the
development of a new program. DOE has therefore concluded that
promulgation of these regulations would fall into the class of actions
that would not individually or cumulatively have a significant impact
on the human environment as set forth in the DOE regulations
implementing the National Environmental Policy Act of 1969 (42 U.S.C.
4321 et seq.). Specifically, the rule would be covered under the
categorical exclusion in paragraph A6 of Appendix A to Subpart D, 10
CFR Part 1021, which applies to the establishment of procedural
rulemakings. Accordingly, neither an environmental assessment nor an
environmental impact statement is required.
H. Review Under the Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written assessment of the
effects of any Federal mandate in a proposed or final agency regulation
that may result in the expenditure by states, tribal, or local
governments, on the aggregate, or by the private sector, of $100
million in any one year. The Act also requires a Federal agency to
develop an effective process to permit timely input by elected
officials of state, tribal, or local governments on a proposed
``significant intergovernmental mandate,'' and requires an agency plan
for giving notice and opportunity to provide timely input to
potentially affected small governments before establishing any
requirements that might significantly or uniquely affect small
governments. DOE has determined that the proposed rule published today
does not contain any Federal mandates affecting small governments, so
these requirements do not apply.
I. Review Under Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy, Supply, Distribution, or Use), 66 FR 28355
(May 22, 2001) requires preparation and submission to OMB of a
Statement of Energy Effects for significant regulatory actions under
Executive Order 12866 that are likely to have a significant adverse
effect on the supply, distribution, or use of energy. DOE has
determined that the proposed rule published today would not have a
significant adverse effect on the supply, distribution, or use of
energy and thus the requirement to prepare a Statement of Energy
Effects does not apply.
J. Review Under the Treasury and General Government Appropriations Act,
1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a
``Family Policymaking Assessment'' for any proposed rule that may
affect family well-being. The proposed rule has no impact on the
autonomy or integrity of the family as an institution. Accordingly, DOE
has concluded that it is not necessary to prepare a Family Policymaking
Assessment.
K. Review Under the Treasury and General Government Appropriations Act,
2001
The Treasury and General Government Appropriations Act, 2001 (44
U.S.C. 3516, note) provides for agencies to review most dissemination
of information to the public under guidelines established by each
agency pursuant to general guidelines issued by OMB. OMB's guidelines
were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were
published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed today's
notice of proposed rulemaking under the OMB and DOE guidelines, and has
concluded that it is consistent with applicable policies in those
guidelines.
IV. Public Comment Procedures
A. Written Comments
Interested individuals are invited to participate in this
proceeding by submitting data, views, or arguments with respect to this
proposed rule. Three copies of written comments should be submitted to
the address indicated in the ADDRESSES section of this notice. To help
the DOE review the submitted comments, commenters are
[[Page 68287]]
requested to reference the paragraph (e.g., Sec. 851.4(a)) to which
they refer where possible.
All information provided by commenters will be available for public
inspection at the DOE Freedom of Information Reading Room, Room 1E-190,
1000 Independence Avenue, SW., Washington, DC 20585 between the hours
of 8:30 a.m. and 4:30 p.m., Monday through Friday, except Federal
Holidays. The docket file material for this rulemaking will be under
``EH-RM-03-WSH.''
DOE also intends to enter all written comments on a Web site
specially established for this proceeding. The Internet Web site is
http://www.eh.doe.gov/whs/rulemaking. To assist DOE in making
public comments available on a Web site, interested persons are to submit
an electronic version of their written comments in accordance with the
instructions in the DATES section of this notice of proposed
rulemaking.
If you submit information that you believe to be exempt by law from
public disclosure, you should submit one complete copy, as well as two
copies from which the information claimed to be exempt by law from
public disclosure has been deleted. DOE is responsible for the final
determination with regard to disclosure or nondisclosure of the
information and for treating it accordingly under the Freedom of
Information Act section on ``Handling Information of a Private
Business, Foreign Government, or an International Organization,'' 10
CFR 1004.11.
B. Public Hearings
Public hearings will be held at the time, date, and place indicated
in the DATES and ADDRESSES sections of this notice of proposed
rulemaking. Any person who is interested in making an oral presentation
should, by 4:30 p.m. on the date specified, make a phone request to the
number in the DATES section of this notice of proposed rulemaking. The
person should provide a daytime phone number where he or she may be
reached. Persons requesting an opportunity to speak will be notified as
to the approximate time they will be speaking. Each presentation is
limited to 10 minutes. Persons making oral presentations should bring
three copies of their statement to the hearing and submit them at the
registration desk.
DOE reserves the right to select the persons who will speak. In the
event that requests exceed the time allowed, DOE also reserves the
right to schedule speakers' presentations and to establish the
procedures for conducting the hearing. A DOE official will be
designated to preside at each hearing, which will not be judicial or
evidentiary. Only those persons conducting the hearing may ask
questions. Any further procedural rules needed to conduct the hearing
properly will be announced by the DOE presiding official.
A transcript of each hearing will be made available to the public.
DOE will retain the record of the full hearing, including the
transcript, and make it available on the Web site specially established
for this proceeding. The Internet Web site is http://www.eh.doe.gov/whs/
rulemaking. If DOE must cancel the hearing, it will make
every effort to give advance notice.
Prior to holding the public hearings, DOE intends to hold one or
more informal information workshops to allow contractors, workers and
their representatives to familiarize themselves with the proposed
regulation. DOE expects to hold these workshops which could include
video or telephone conferencing, approximately three weeks after
publication of the proposed regulation and will make information on
times and locations available as soon as arrangements are finalized.
List of Subjects
10 CFR Part 850
Beryllium, Chronic beryllium disease, Hazardous substances, Lung
diseases, Occupational safety and health, Reporting and recordkeeping
requirements.
10 CFR Part 851
Civil penalty, Federal buildings and facilities, Occupational
safety and health, Safety, Reporting and recordkeeping requirements.
Issued in Washington, DC, on December 2, 2003.
Beverly Cook,
Assistant Secretary of Environment, Safety, and Health.
For the reasons set forth in the preamble, the Department of Energy
proposes to amend chapter III of title 10 of the Code of Federal
Regulations as follows:
PART 850--CHRONIC BERYLLIUM DISEASE PREVENTION PROGRAM
1. The authority citation for part 850 is revised to read as
follows:
Authority: 42 U.S.C. 2201(i)(3), (p); 42 U.S.C. 2282c; 29 U.S.C.
668; 42 U.S.C. 7101 et seq.; 50 U.S.C. 2401 et seq., E.O. 12196, 3
CFR 1981 comp., at 145 as amended.
2. Section 850.1 is revised to read as follows:
Sec. 850.1 Scope.
This part provides for establishment of a chronic beryllium disease
prevention program (CBDPP) that supplements and is deemed an integral
part of the worker safety and health program under part 851 of this
chapter.
3. Section 850.4 is revised to read as follows:
Sec. 850.4 Enforcement.
DOE may take appropriate steps pursuant to part 851 of this chapter
to enforce compliance by contractors with this part and any DOE-
approved CBDPP.
4. A new part 851 is added to chapter III to read as follows:
PART 851--WORKER SAFETY AND HEALTH
Subpart A--General Provisions
Sec.
851.1 Scope.
851.2 Exclusions.
851.3 Definitions.
851.4 Enforcement.
851.5 Information and records.
851.6 Compliance Order.
851.7 Interpretation.
851.8 Guidance documents.
851.9 DOE operated workplaces.
Subpart B--Worker Safety and Health Program
851.100 General rule.
851.101 Worker safety and health program.
851.102 DOE approval of worker safety and health program.
851.103 Worker rights.
Subpart C--Enforcement Process
851.200 Purpose.
851.201 Investigations and inspections.
851.202 Settlement.
851.203 Preliminary notice of violation.
851.204 Final notice of violation.
851.205 Administrative appeal.
851.206 Direction to NNSA contractors.
Appendix A to Part 851--Generally Acceptable Worker Safety and Health
Standards and Programs
Appendix B to Part 851--General Statement of Enforcement Policy
Authority: 42 U.S.C. 2201(i)(3), (p); 42 U.S.C. 2282c; 42 U.S.C.
5801 et seq.; 42 U.S.C. 7101 et seq.; 50 U.S.C. 2401 et seq.
Subpart A--General Provisions
Sec. 851.1 Scope.
This part governs the conduct of activities at DOE sites by or on
behalf of DOE.
Sec. 851.2 Exclusions.
(a) This part does not apply to a DOE site:
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(1) Regulated by the Occupational Safety and Health Administration
(OSHA) on December 2, 2002; or
(2) Operated under the authority of the Director, Naval Nuclear
Propulsion, pursuant to Executive Order 12344, as set forth in Public
Law 98-525, 42 U.S.C. 7158 note.
(b) This part does not apply to radiological hazards to the extent
regulated by 10 CFR parts 820, 830, or 835.
Sec. 851.3 Definitions.
The following definitions apply to this part:
AEA means the Atomic Energy Act of 1954, 42 U.S.C. 2011 et seq.
Consent order means any written document, signed by the Director
and a contractor, containing stipulations or conclusions of fact or law
and a remedy acceptable to both DOE and the contractor.
Contractor means any entity, including affiliated entities such as
a parent corporation, under contract with DOE (or any subcontractor or
supplier thereto).
Covered workplace means a place where work is conducted by or on
behalf of DOE where DOE has oversight responsibility for safety and
health.
DOE means the United States Department of Energy, including the
National Nuclear Security Administration.
DOE site means a DOE-owned or leased area or location where
activities and operations are performed at one or more facilities or
locations by or on behalf of DOE.
Director means the DOE Official(s) to whom the Secretary has
assigned the authority to investigate the nature and extent of
compliance with the requirements of this part.
Final notice of violation means a document that determines a
contractor has violated or is continuing to violate a requirement of
this part and includes:
(1) A statement specifying the requirement of this part to which
the violation relates;
(2) A concise statement of the basis for the determination;
(3) Any remedy, including the amount of any civil penalty; and
(4) A statement explaining the reasoning behind any remedy.
Final order means an order of DOE that represents final agency
action and, where appropriate, imposes a remedy with which the
recipient of the order must comply.
General Counsel means the General Counsel of DOE.
Guidance document means a document that sets forth information
related to implementing or otherwise complying with a requirement of
this part and that DOE has not adopted as a legally binding requirement
through notice and comment rulemaking under the Administrative
Procedure Act (5 U.S.C. 553).
Interpretation means a statement by the General Counsel concerning
the meaning or effect of a requirement of this part which relates to a
specific factual situation but may also be a ruling of general
applicability where the General Counsel determines such action to be
appropriate.
National security workplace means a covered workplace where
national security missions are performed.
NNSA means the National Nuclear Security Administration.
Preliminary notice of violation means a document that sets forth
the preliminary conclusions that a contractor has violated or is
continuing to violate a requirement of this part and includes:
(1) A statement specifying the requirement of this part to which
the violation relates;
(2) A concise statement of the basis for alleging the violation;
(3) Any remedy, including the amount of any proposed civil penalty;
and
(4) A statement explaining the reasoning behind any proposed
remedy.
Program Secretarial Officer (PSO) means the Assistant Secretary,
Deputy Administrator, Program Office Director, or equivalent DOE
official who has primary line management responsibility for a
contractor.
Remedy means any action necessary or appropriate to rectify,
prevent, or penalize a violation of a requirement of this part,
including a compliance order, the assessment of civil penalties, the
reduction of fees or other payments under a contract, the requirement
of specific actions, or the modification, suspension or recission of a
contract.
Secretary means the Secretary of Energy.
Transitional workplace means a covered workplace that is, or is
expected to be, permanently closed and that is expected to be
demolished, or title to which is expected to be transferred to another
entity for reuse on behalf of an entity other than DOE.
Worker means an employee who performs work at a covered workplace.
Worker protection evaluation report means the report prepared by
DOE to document the basis for approval by DOE of a worker safety and
health program, including any conditions for approval.
Worker safety and health program means a program that provides
reasonable assurance of a safe and healthful workplace.
Workplace hazard means a physical, chemical, or biological hazard
with any potential to cause illness, injury, or death to a person.
Workplace safety and health standard means a standard or program
which addresses a workplace hazard by requiring conditions, or the
adoption or use of one or more practices, means, methods, operations,
or processes, reasonably necessary or appropriate to provide a safe and
healthful workplace.
Sec. 851.4 Enforcement.
(a) The requirements in this part are subject to enforcement by all
appropriate means.
(b) A contractor that violates (or whose employee violates) Sec.
851.100 of this part is subject to a reduction in fees or other
payments under a contract with DOE, pursuant to the contract's
Conditional Payment of Fee clause.
(c) A contractor who has entered into an agreement of
indemnification under section 170d. of the AEA (or any subcontractor or
supplier thereto) and who violates (or whose employee violates) any
requirement of this part is subject to a civil penalty of not more than
$70,000 for each such violation. If any violation under this subsection
is a continuing violation, each day of the violation shall constitute a
separate violation for the purpose of computing the civil penalty.
(d) DOE may not penalize a contractor under both paragraphs (b) and
(c) of this section for the same violation of a requirement of this
part.
(e) In the case of an entity described in subsection d. of section
234A of the AEA, the total amount of contract penalties under paragraph
(b) and civil penalties under paragraph (c) of this section in a fiscal
year may not exceed the total amount of fees paid by DOE to that entity
in that fiscal year.
(f) DOE may not penalize a contractor under both sections 234A and
234C of the AEA for the same violation.
Sec. 851.5 Information and records.
(a) A contractor must maintain complete and accurate records as
necessary to substantiate compliance with the requirements of this
part.
(b) A contractor may neither conceal nor destroy any information
concerning noncompliance or potential noncompliance with the
requirements of this part.
(c) Any information pertaining to a requirement in this part
provided to DOE by any contractor or maintained by any contractor for
inspection by DOE shall be complete and accurate in all material
respects.
[[Page 68289]]
(d) Nothing in this part shall relieve any contractor from
safeguarding classified, confidential, and controlled information,
including Restricted Data or national security information, in
accordance with the applicable provisions of federal statutes and the
rules, regulations, and orders of any federal agency.
Sec. 851.6 Compliance Order.
(a) The Secretary may issue to any contractor a Compliance Order
that:
(1) Identifies a situation that violates, potentially violates, or
otherwise is inconsistent with a requirement of this part;
(2) Mandates a remedy, work stoppage, or other action; and, (3)
States the reasons for the remedy, work stoppage, or other action.
(b) A Compliance Order is a final order that is effective
immediately unless the Order specifies a different effective date.
(c) Within 15 calendar days of the issuance of a Compliance Order,
the recipient of the Order may request the Secretary to rescind or
modify the Order. A request does not stay the effectiveness of a
Compliance Order unless the Secretary issues an order to that effect.
Sec. 851.7 Interpretation.
(a) The Office of the General Counsel is solely responsible for
formulating and issuing any interpretation concerning a requirement in
this part.
(b) Any written or oral response to any written or oral question
which is not provided pursuant to paragraph (a) of this section does
not constitute an interpretation and does not provide any basis for
action inconsistent with a requirement of this part.
Sec. 851.8 Guidance documents.
(a) Except as provided in paragraph (c) of this section, a guidance
document does not establish any requirement legally enforceable
pursuant to this part.
(b) Except as provided in paragraph (c) of this section, DOE may
not conduct an inspection or investigation to determine compliance with
this part on the basis of whether a contractor's actions or omissions
are inconsistent with a guidance document.
(c) A provision of a guidance document is legally enforceable
pursuant to this part only to the extent it is explicitly:
(1) Included by a contractor in the set of workplace safety and
health standards identified pursuant to Sec. 851.101(c)(3)(ii)(B) of
this part; or
(2) Selected or used by a contractor as a procedure, control, or
work process to perform work in a tailored manner for particular
covered workplaces in accordance with Sec. 851.101(c)(4).
Sec. 851.9 DOE operated workplaces.
With respect to a covered workplace operated by DOE, DOE must
ensure work is performed consistent with the requirements of this part,
including the establishment, maintenance and implementation of a worker
safety and health program.
Subpart B--Worker Safety and Health Program
Sec. 851.100 General rule.
The contractor responsible for a covered workplace must ensure:
(a) The covered workplace is free from recognized hazards that are
causing or are likely to cause death or serious bodily harm; and
(b) Work is performed in accordance with the worker safety and
health program for the covered workplace, as approved by DOE.
Sec. 851.101 Worker safety and health program.
(a) A contractor responsible for one or more workplaces at a DOE
site must establish and maintain a worker safety and health program for
those workplaces.
(b) A worker safety and health program must:
(1) Provide for eliminating, limiting or mitigating the identified
workplace hazards in a manner that is necessary and sufficient to
provide adequate protection of workers; and
(2) Be tailored to reflect the activities and hazards in particular
work environments.
(c) In establishing a worker safety and health program, a
contractor must:
(1) Identify and analyze, as appropriate at the site, facility,
activity and workplace level:
(i) The work to be performed;
(ii) The work environment, including designs and features of
facilities, equipment, operations and procedures important to a safe
and healthful workplace;
(iii) Existing and potential workplace hazards; and
(iv) The risk of worker injury or illness associated with the
identified workplace hazards.
(2) Include a set of workplace safety and health standards that
achieves a level of protection at least substantially equivalent to the
level of protection that existed in comparable DOE workplaces in 2002;
(3) Select and document the included set of workplace safety and
health standards that are necessary and sufficient to provide adequate
protection of workers:
(i) With respect to beryllium, by incorporating the chronic
beryllium disease prevention program adopted pursuant to part 850 of
this chapter; and
(ii) With respect to other workplace hazards identified and
analyzed pursuant to (c)(1) of this section by identifying and
incorporating a set of provisions that are necessary and sufficient to
protect workers from the identified hazards, provided that the set is
based on:
(A) The workplace safety and health standards in Appendix A of this
part;
(B) Other workplace safety and health standards; or
(C) A combination of the workplace safety and health standards in
paragraphs (c)(3)(ii)(A) and (c)(3)(ii)(B) of this section.
(4) Describe in sufficient detail how work will be performed in
accordance with the set of selected workplace safety and health
standards, including:
(i) Selection process and use of procedures, controls, and work
processes in a tailored manner for particular covered workplaces;
(ii) Preference for implementation on the basis of the following
hierarchy in descending order: engineering controls, administrative
controls, work practices, and personal protective equipment; and
(iii) Integration of the program on site, facility, activity and
workplace levels, taking into account differences and similarities
between the work, hazards, and workplace safety and health standards
and, if applicable, coordination with other worker safety and health
programs at the site;
(5) Describe how feedback and continuous improvement will be
provided for elements of the worker safety and health program.
(6) Prioritize the abatement of hazards on the basis of risks to
workers;
(7) Address how the following features will be incorporated into
the worker safety and health program:
(i) Line management commitment;
(ii) Information and training;
(iii) Ongoing workplace monitoring and observation;
(iv) Medical surveillance; and
(v) Applicability to subcontractors. (d)(1) If a contractor is
responsible for more than one covered workplace at a DOE site, the
contractor must establish and maintain a single worker safety and
health program for the workplaces at the site for which the contractor
is responsible
(2) If more than one contractor is responsible for covered
workplaces at a DOE site, each contractor must:
(i) Establish and maintain a worker safety and health program for the
[[Page 68290]]
workplaces for which the contractor is responsible; and
(ii) Coordinate with the other contractors responsible for covered
workplaces at the site to ensure that the worker safety and health
programs at the site are integrated and consistent.
(e) If a worker safety and health program sets forth a reasonable
basis for characterizing particular workplaces as:
(1) Transitional workplaces, it must provide sufficient flexibility
to take into account the special circumstances of those workplaces; or
(2) National security workplaces, it must provide sufficient
flexibility to achieve national security missions in an efficient and
timely manner in those workplaces.
Sec. 851.102 DOE approval of worker safety and health program.
(a) Beginning one year after publication of the final rule, no work
may be performed at a covered workplace unless the PSO has approved the
worker safety and health program for the workplace through the issuance
of a worker protection evaluation report that determines the worker
safety and health program will achieve a level of protection at least
substantially equivalent to the level of protection that existed in
2002 for DOE workplaces comparable to those covered workplaces
addressed by the program.
(b) Within 180 days after publication of the final rule, a
contractor responsible for establishing a worker safety and health
program must submit for DOE approval a worker safety and health program
that meets the requirements of this subpart.
(c) A contractor must maintain a worker safety and health program
by:
(1) Evaluating and updating the worker safety and health program to
reflect changes in the activities and hazards;
(2) Annually submitting to DOE either an updated worker safety and
health program for approval or a letter stating that no changes are
necessary in the currently approved worker safety and health program;
and
(3) Incorporating in the worker safety and health program any
changes, conditions, or workplace safety and health standards directed
by DOE.
Sec. 851.103 Worker rights.
A worker at a covered workplace has the right, without reprisal,
to:
(a) Participate in activities described in this section on official
time;
(b) Have access to:
(1) DOE safety and health publications;
(2) The DOE-approved worker safety and health program for the
covered workplace; and
(3) The standards, controls and procedures applicable to the
covered workplace;
(c) Observe monitoring or measuring of hazardous agents;
(d) Have access to monitoring and measuring results and be notified
when such results indicate the worker was overexposed to hazardous
materials;
(e) Accompany DOE personnel during an inspection of the workplace;
(f) Request and receive results of inspections and accident
investigations;
(g) Express concerns related to worker safety and health;
(h) 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 the worker coupled with a reasonable
belief that there is insufficient time to seek effective redress
through the normal hazard reporting and abatement procedures;
(i) Stop work, through the worker's supervisor, when the worker
discovers employee exposures to imminently dangerous conditions or
other serious hazards; provided that any stop work authority must be
exercised in a justifiable and responsible manner in accordance with
established procedures; and
(j) Have access to an appropriate safety and health poster that
informs the worker of relevant rights and responsibilities.
Subpart C--Enforcement Process
Sec. 851.200 Purpose.
This subpart establishes the procedures for investigating the
nature and extent of a violation of the requirements of this part, for
determining whether a violation of a requirement of this part has
occurred, and for imposing an appropriate remedy.
Sec. 851.201 Investigations and inspections.
(a) The Director may initiate and conduct investigations and
inspections relating to the scope, nature and extent of compliance by a
contractor with the requirements of this part and take such action as
the Director deems necessary and appropriate to the conduct of the
investigation or inspection.
(b) Any person may request the Director to initiate an
investigation or inspection pursuant to paragraph (a) of this section.
A request for an investigation or inspection sets forth the subject
matter or activity to be investigated or inspected as fully as possible
and includes supporting documentation and information.
(c) The Director must inform any contractor that is the subject of
an investigation or inspection in writing at the initiation of the
investigation or inspection of the general purpose of the investigation
or inspection.
(d) DOE shall not disclose information or documents that are
obtained during any investigation or inspection unless the Director
directs or authorizes the public disclosure of the investigation. Upon
such authorization, the information or documents are a matter of public
record and disclosure is not precluded by the Freedom of Information
Act, 5 U.S.C. 552 and part 1004 of this title.
(e) A request for confidential treatment of information for
purposes of the Freedom of Information Act does not prevent disclosure
by the Director if the Director determines disclosure to be in the
public interest and otherwise permitted or required by law.
(f) During the course of an investigation or inspection, any
contractor may submit any document, statement of facts or memorandum of
law for the purpose of explaining the contractor's position or furnish
information which the contractor considers relevant to a matter or
activity under investigation or inspection.
(g) The Director may convene an informal conference to discuss any
situation that might be a violation of a requirement of this part, its
significance and cause, any correction taken or not taken by the
contractor, any mitigating or aggravating circumstances, and any other
useful information. A conference is not normally open to the public and
DOE does not make a transcript of the conference. The Director may
compel a contractor to attend the conference.
(h) If facts disclosed by an investigation or inspection indicate
that further action is unnecessary or unwarranted, the Director may
close the investigation without prejudice to further investigation or
inspection at any time that circumstances so warrant.
(i) If facts disclosed by an investigation or inspection indicate
that corrective action is necessary or warranted, the Director may
issue an enforcement letter that closes the investigation subject to
the implementation of the corrective actions identified in the
enforcement letter.
(j) The Director may issue enforcement letters that communicate
DOE's expectations with respect to any aspect of the requirements of
this part, including identification and reporting of issues, corrective
actions, and implementation of the contractor's
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safety and health program; provided that an enforcement letter may not
create the basis for any legally enforceable requirement pursuant to
this part.
(k) The Director may sign, issue and serve subpoenas.
Sec. 851.202 Settlement.
(a) DOE encourages settlement of a proceeding under this subpart at
any time if the settlement is consistent with this part. The Director
and a contractor may confer at any time concerning settlement. A
settlement conference is not open to the public and DOE does not make a
transcript of the conference.
(b) Notwithstanding any other provision of this part, the Director
may resolve any issues in an outstanding proceeding under this subpart
with a consent order.
(1) The Director and the contractor, or a duly authorized
representative, must sign the consent order and indicate agreement to
the terms contained therein.
(2) A contractor does not need to admit in a consent order that a
requirement of this part has been violated.
(3) DOE does not need to make a finding in a consent order that a
contractor has violated a requirement of this part.
(4) A consent order must set forth the relevant facts which form
the basis for the order and what remedy, if any, is imposed.
(5) A consent order shall constitute a final order.
Sec. 851.203 Preliminary notice of violation.
(a) Based on a determination by the Director that there is a
reasonable basis to believe a contractor has violated or is continuing
to violate a requirement of this part, the Director may issue a
preliminary notice of violation to the contractor.
(b) The Director must send a preliminary notice of violation by
certified mail, return receipt requested.
(c) A preliminary notice of violation must indicate:
(1) The date, facts, and nature of each act or omission upon which
each alleged violation is based;
(2) The particular provision of the regulation involved in each
alleged violation;
(3) The proposed remedy for each alleged violation, including the
amount of any civil penalty; and
(4) The right of the contractor to submit a written reply to the
Director within 30 calendar days of receipt of the preliminary notice
of violation.
(d) A reply to a preliminary notice of violation must contain a
statement of all relevant facts pertaining to an alleged violation.
(1) The reply must:
(i) State any facts, explanations and arguments which support a
denial of the alleged violation;
(ii) Demonstrate any extenuating circumstances or other reason why
a proposed remedy should not be imposed or should be mitigated;
(iii) Discuss the relevant authorities which support the position
asserted, including rulings, regulations, interpretations, and previous
decisions issued by DOE; and
(iv) Furnish full and complete answers to any questions set forth
in the preliminary notice.
(2) Copies of all relevant documents must be submitted with the
reply.
(e) If a contractor fails to submit a written reply within 30
calendar days of receipt of a preliminary notice of violation:
(1) The contractor relinquishes any right to appeal any matter in
the preliminary notice; and
(2) The preliminary notice, including any proposed remedies
therein, constitutes a final order.
Sec. 851.204 Final notice of violation.
(a) If a contractor submits a written reply within 30 calendar days
of receipt of a preliminary notice of violation, the Director must
review the submitted reply and make a final determination whether the
contractor violated or is continuing to violate a requirement of this
part.
(b) Based on a determination by the Director that a contractor has
violated or is continuing to violate a requirement of this part, the
Director may issue to the contractor a final notice of violation that
states concisely the determined violation and any remedy, including the
amount of any civil penalty imposed on the contractor. The final notice
of violation must state that the contractor may petition the Office of
Hearings and Appeals for review of the final notice in accordance with
10 CFR part 1003, subpart G.
(c) The Director must send a final notice of violation by certified
mail, return receipt requested.
(d) If a contractor fails to submit a petition for review to the
Office of Hearings and Appeals within 30 calendar days of receipt of a
final notice of violation pursuant to Sec. 851.205:
(1) The contractor relinquishes any right to appeal any matter in
the final notice; and
(2) The final notice, including any remedies therein, constitutes a
final order.
Sec. 851.205 Administrative appeal.
(a) Any contractor that receives a final notice of violation may
petition the Office of Hearings and Appeals for review of the final
notice in accordance with part 1003, subpart G of this title, within 30
calendar days from receipt of the final notice.
(b) In order to exhaust administrative remedies with respect to a
final notice of violation, the contractor must petition the Office of
Hearings and Appeals for review in accordance with paragraph (a) of
this section.
Sec. 851.206 Direction to NNSA contractors.
(a) Notwithstanding any other provision of this part, the NNSA
Administrator, rather than the Director, signs, issues and serves the
following actions that direct NNSA contractors:
(1) Subpoenas;
(2) Orders to compel attendance;
(3) Disclosures of information or documents obtained during an
investigation or inspection;
(4) Preliminary notices of violations; and
(5) Final notices of violations.
(b) The NNSA Administrator shall act after consideration of the
Director's recommendation.
Appendix A to Part 851--Generally Acceptable Worker Safety and Health
Standards and Programs
I. Safety and Health Standards
A. Title 29 of the Code of Federal Regulations (CFR), Part 1910,
``Occupational Safety and Health Standards.''
B. Title 29 CFR Part 1915, ``Shipyard Employment.''
C. Title 29 CFR Part 1917, ``Marine Terminals.''
D. Title 29 CFR Part 1918, ``Safety and Health Regulations for
Longshoring.''
E. Title 29 CFR Part 1926, ``Safety and Health Regulations for
Construction.''
F. Title 29 CFR Part 1928, ``Occupational Safety and Health
Standards for Agriculture.''
G. American Conference of Governmental Industrial Hygienists
(ACGIH), ``Threshold Limit Values for Chemical Substances and
Physical Agents and Biological Exposure Indices'' (most recent
edition), when ACGIH Threshold Limit Values (TLVs) are lower (more
protective) than Occupational Safety and Health Administration
(OSHA) Permissible Exposure Limits. When ACGIH TLVs are used as
exposure limits, DOE operations must nonetheless comply with the
other provisions of any applicable OSHA-expanded health standard.
H. Exposure limits and technical requirements of the American
National Standards Institute (ANSI) Z136.1, Safe Use of Lasers.
I. ANSI Z88.2, Practices for Respiratory Protection.
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).
[[Page 68292]]
K. National Fire Protection Association (NFPA) 70, National
Electrical Code.
L. National Fire Protection Association 70E, Electrical Safety
Requirements for Employee Workplaces.
M. Appropriate etiologic agents guidelines and best practices.
See most current edition of U.S. Department of Health and Human
Services Centers for Disease Control and Prevention (CDC)
Publication 93-8395, Biosafety in Microbiological and Biomedical
Laboratories; National Institutes of Health (NIH) publication
Guidelines for Research Involving Recombinant DNA Molecules; and
World Health Organization (WHO) publication Guidelines for the Safe
Transport of Infectious Substances and Diagnostic Specimens.
II. Safety and Health Programs
A. Construction Safety
1. For each construction operation presenting hazards not
experienced in previous project operations or for work performed by
a different subcontractor, the construction contractor prepares a
task analysis (job hazard analysis) and has it approved prior to
commencement of affected work. These analyses identify foreseeable
hazards and planned protective measures, provide drawings and/or
other documentation of protective measures that a Professional
Engineer or other competent person is required to prepare, and
define the qualifications of competent persons required for
workplace inspections.
2. Inform workers of foreseeable hazards and the protective
measures described within the approved task analysis prior to
beginning work on the affected construction operation.
3. During periods of active construction, the construction
manager has a designated representative on site at all times to
conduct and document daily inspections of the workplace; to identify
and correct hazards and instances of noncompliance with project
safety and health requirements. If immediate corrective action is
not possible or the hazard falls outside of project scope, the
construction contractor immediately notify affected workers, post
appropriate warning signs, implement needed interim control
measures, and notify the construction manager of actions taken.
4. The construction contractor prepares and has approved prior
to beginning any on-site project work a written project safety and
health plan that gives a proposal for implementing the above
information. The construction contractor also designates the
individual(s) responsible for on-site implementation of the plan,
specify qualifications for those individuals, and provide a list of
those project operations for which a task analysis is to be
performed.
B. Fire Protection
1. Implement a comprehensive fire protection program that
includes appropriate facility and site-wide fire protection, fire
alarm notification and egress features, and access to a fully
staffed, trained, and equipped fire department that is capable of
responding in a timely and effective manner to site emergencies.
2. An acceptable fire protection program includes those fire
protection criteria and procedures, analyses, hardware and systems,
apparatus and equipment, and personnel. This also includes meeting
the applicable building code and National Fire Protection
Association Codes and Standards or exceeding them (when necessary to
meet safety objectives), unless DOE has granted explicit written
relief.
3. Fire watcher requirements in National Fire Protection
Association (NFPA) 51B, Section 3-3.3 (of the 1994 edition or
equivalent section of subsequent editions), are expanded to include
responsibility for the safety of the welder(s) in addition to that
of the facility.
C. Firearms Safety
1. Establish firearms safety policies and procedures to address
safety concerns and the personal protective equipment required.
Establish procedures for: storage, handling, cleaning, and
maintenance of firearms and associated ammunition; activities such
as loading, unloading, and exchanging firearms; use of pyrotechnics
and/or explosive projectiles; handling misfires and duds; live fire
operations; and training and exercises using engagement simulation
systems.
2. Staff members responsible for the direction and operation of
the firearms safety program are professionally qualified and have
sufficient time and authority to implement the established program.
Firearms instructors and armorers are Safeguards and Security
Central Training Academy-certified to conduct the level of activity
provided.
3. Conduct formal appraisals assessing implementation of
procedures, personnel responsibilities, and duty assignments to
ensure overall policy objectives and performance criteria are being
met by qualified safety personnel.
4. Implement provisions related to firearms safety training,
qualification, or re-qualification. Personnel successfully complete
and demonstrate understanding of initial firearms safety training
before being issued any firearms.
(a) Personnel authorized to carry firearms have access to
instruction manuals for each type of duty firearms with which they
are armed while on duty. Authorized armed personnel demonstrate both
technical and practical knowledge of firearms handling and safety on
a semi-annual basis. This demonstration supported by limited scope
performance tests, and documents the results of such testing.
(b) All firearms training lesson plans incorporate safety for
all aspects of firearms training task performance standards. The
lesson plans follow the standards and criteria set forth by the
Safeguards and Security Central Training Academy's standard training
programs. Conduct safety briefings before any live fire training
commences, in accordance with DOE M 473.2-1, Firearms Qualification
Courses Manual.
(c) Develop a safety analysis and have approved by the
Operations Office Manager for the facilities and operation of each
live fire range. Complete and have approved a safety analysis prior
to implementation of any new training. Incorporate the results of
these analyses into procedures, lesson plans, exercise plans, and
limited scope performance tests.
(d) Post site-specific firing range safety procedures at all
ranges.
(e) Request approval from the DOE Operations Office for the
location and use of a live fire range.
5. Transportation, handling, placarding, and storage of
munitions conform to the applicable requirements of DOE M 440.1-1,
DOE Explosives Safety Manual.
D. Explosives Safety
Applicable explosives operations comply with DOE M 440.1-1.
Contractor facility management determines the applicability of the
requirements to research and development laboratory type operations
consistent with the DOE level of protection criteria in the Manual.
The administration and management of the Explosives Safety Manual
and any deviations from it follows the process specified in Chapter
I, Sections 3 and 4, of the Manual. Revisions to the Manual are made
through concurrence of the DOE Explosives Safety Committee.
E. Industrial Hygiene
Industrial hygiene programs include the following elements:
1. Initial or baseline surveys of all work areas or operations
to identify and evaluate potential worker health risks and periodic
resurveys and/or exposure monitoring as appropriate.
2. Coordination with planning and design personnel to anticipate
and control health hazards that proposed facilities and operations
would introduce.
3. Documented exposure assessment for chemical, physical, and
biological agents and ergonomic stressors using recognized exposure
assessment methodologies and use of accredited industrial hygiene
laboratories.
4. Specification of appropriate controls based on the following
hierarchy: engineering; work practices; and personal protective
equipment to limit hazardous exposure to acceptable levels. Use of
respiratory protection equipment tested under the DOE Respirator
Acceptance Program when National Institute for Occupational Safety
and Health-approved respiratory protection does not exist for DOE
tasks. For security operations conducted in accordance with
Presidential Directive Decision 39, U.S. Policy on Counter
Terrorism, use of Department of Defense military type masks for
respiratory protection by security personnel is acceptable.
5. Professionally and technically qualified industrial
hygienists to manage and implement the industrial hygiene program.
F. Occupational Medicine
1. The earliest possible detection and mitigation of
occupational illness and injury is the goal of these services. The
physician responsible for delivery of medical services is
responsible for the planning and implementation of the occupational
medical program.
2. Maintenance of a Healthful Work Environment.
(a) The responsible physician performs targeted examinations
based on an up-to-date knowledge of work site risk; identify
potential or actual health effects resulting from worksite
exposures; and communicate
[[Page 68293]]
the results of health evaluations to management and to those
responsible for mitigating worksite hazards.
(b) Contractor management provides to the physician employee job
task and hazard analysis information; and summaries of potential
worksite exposures of employees prior to mandatory health
examinations.
3. Employee Health Examinations. Health examinations are
conducted by an occupational health examiner under the direction of
a licensed physician in accordance with current sound and acceptable
medical practices. The content of health examinations is the
responsibility of the physician responsible for the delivery of
medical services.
(a) The following classes of examinations are for providing
initial and continuing assessment of employee health: pre-placement
in accordance with the Americans with Disabilities Act (42 U.S.C.
12101); qualification examinations; fitness for duty; medical
surveillance and health monitoring; return to work health
evaluations; and termination examinations.
(b) The physician or his/her designee informs contractor
management of appropriate employee work restrictions.
4. Monitored Care. Contractor management notifies the physician
responsible for the delivery of medical services or his or her
designee when an employee has been absent because of an injury or
illness for more than 5 consecutive workdays or experiences
excessive absenteeism.
5. Employee Counseling and Health Promotion. The physician
responsible for delivery of medical services reviews and approves
the medical aspects of contractor-sponsored or -supported employee
assistance, alcohol, and other substance abuse rehabilitation
programs; approve and coordinate all contractor-sponsored or -
supported wellness programs; and ensure that immunization programs
for blood-borne pathogens and biohazardous waste programs conform to
OSHA regulations and Centers for Disease Control guidelines for
those employees at risk to these forms of exposure.
6. Medical Records. Develop and maintain an employee medical
record for each employee for whom medical services are provided.
Observe employee medical records confidentiality, adequately protect
and permanently store them.
7. Emergency and Disaster Preparedness. The physician
responsible for the delivery of medical services is responsible for
the medical portion of the site emergency and disaster plan.
Integrate the medical portion with the overall site plan and with
the surrounding community emergency and disaster plan.
8. Organizational Staffing. Ensure that the physician
responsible for the delivery of medical services is a graduate of a
school of medicine or osteopathy who meets the licensing
requirements applicable to the location in which the physician
works. Occupational medical physicians, occupational health nurses,
physician's assistants, nurse practitioners, psychologists, and
other occupational health personnel are graduates of accredited
schools and is licensed, registered, or certified as required by
Federal or State law where employed.
G. Pressure Safety
1. Establish safety policies and procedures to ensure pressure
systems are designed, fabricated, tested, inspected, maintained,
repaired, and operated by trained and qualified personnel in
accordance with applicable and sound engineering principles.
2. Ensure that all pressure vessels, boilers, air receivers, and
supporting piping systems conform to the American Society of
Mechanical Engineers (ASME) Boiler and Pressure Vessel Safety Code;
the American National Standards Institute/ASME B.31 Piping Code;
and/or the strictest applicable state and local codes.
3. When national consensus codes are not applicable (because of
pressure range, vessel geometry, use of special materials, etc.),
implement measures to provide equivalent protection and ensure
safety equal to or superior to the intent of the ASME code. Measures
include the following:
(a) Design drawings, sketches, and calculations are reviewed and
approved by an independent design professional. Documented
organizational peer review is acceptable.
(b) Qualified personnel are used to perform examinations and
inspections of materials, in-process fabrications, non-destructive
tests, and acceptance tests.
(c) Documentation, traceability, and accountability are
maintained for each unique pressure vessel or system, including
descriptions of design, pressure, testing, operation, repair, and
maintenance.
H. Motor Vehicle Safety
A. Motor Vehicle Safety Program protects the safety and health
of all drivers and passengers in Government-owned or -leased motor
vehicles and powered industrial equipment. The Motor Vehicle Safety
Program is tailored for the individual DOE site or facility, based
on an analysis of the needs of that particular site or facility, and
addresses the following areas:
1. Minimum licensing requirements (including appropriate testing
and medical qualification) for personnel operating motor vehicles
and powered industrial equipment.
2. Requirements for the use of seat belts and provision of other
safety devices.
3. Training for specialty vehicle operators.
4. Requirements for motor vehicle maintenance and inspection.
5. Uniform traffic and pedestrian control devices and road
signs.
6. On-site speed limits and other traffic rules.
7. Awareness campaigns and incentive programs to encourage safe
driving.
8. Enforcement provisions.
I. Biological Safety
1. Comply with appropriate regulatory measures for the safe
possession, handling, transfer, use, or receipt of biological
agents, including select agents or toxins, at DOE facilities. See 42
CFR part 73 Possession, Use and Transfer of Select Agents and
Toxins, 9 CFR part 121 Possession, Use and Transfer of Biological
Agents and Toxins, 7 CFR part 331 Possession, Use and Transfer of
Biological Agents and Toxins, and 29 CFR 1910.1030, Occupational
Exposures to Bloodborne Pathogens, and adhere to the guidance of the
CDC publication, Biosafety in Microbiological and Biomedical
Laboratories (BMBL), as noted in section I, paragraph M of this
appendix.
2. Establish an Institutional Biosafety Committee (IBC) or
equivalent, which will be responsible for reviewing any work with
biological agents, including select agents and toxins, for
compliance with appropriate CDC, Department of Agriculture, NIH,
requirements and WHO and other international, Federal, State and
local guidelines and assessment of containment level, facilities,
procedures, practices, and training and expertise of personnel. In
addition, this committee should review for compliance the site
security, safeguards, and emergency management plans and procedures
as related to work with etiologic agents.
3. Maintain a readily retrievable inventory and status of
biological agents, including select agents and toxins and confirm
compliance with the requirements of this appendix in a written
statement to the head of the DOE field element within 60 days of
incorporation of this appendix into the contract. Provide to the
responsible field and area office, through the laboratory IBC (or
its equivalent), an annual status report describing the status and
inventory of biological agents, including select agents and toxins
and program.
4. Inform the head of the appropriate DOE field element of each
Laboratory Registration/Select Agent Program registration
application package requesting registration of a laboratory facility
at Biosafety Level 2, 3, or 4, for the purpose of transferring,
receiving, or handling select agents or toxins.
5. Inform the head of the appropriate DOE field element of each
CDC Form EA-101, Transfer of Select Agents, upon initial submission
of the Form EA-101 to a vendor or other supplier requesting or
ordering a select agent for possession, transfer, receipt, and
handling in the registered facility. Inform DOE of final disposition
and/or destruction of the select agent, within 10 days of completion
of the Form EA-101.
6. Confirm the site safeguards and security plans or security
plan, and emergency management programs address biological agents,
including select agents and toxins.
7. Establish an immunization policy for personnel working with
biological agents based on the recommendations contained in the U.S.
Public Health Service Advisory Committee on Immunization Practices
(ACIP) and as updated in the CDC Morbidity and Mortality Weekly
Report. The ACIP provides basic guidance, but specific immunization
actions should be based on the DOE facility evaluation of risk and
benefit of immunization.
Appendix B to Part 851--General Statement of Enforcement Policy
I. Introduction
(a) This policy statement sets forth the general framework
through which the U.S. Department of Energy (DOE) will seek to
ensure compliance with its worker safety and health regulations,
and, in particular, exercise the civil penalty authority provided
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to DOE in section 3173 of Public Law 107-314, Bob Stump National
Defense Authorization Act for Fiscal Year 2003 (December 2, 2002)
(``NDAA''), amending the Atomic Energy Act (``AEA'') to add section
234C. The policy set forth herein is applicable to violations of
safety and health regulations in this part by DOE contractors,
including DOE contractors who are indemnified under the Price
Anderson Act, 42 U.S.C. 2210(d), and their subcontractors and
suppliers (hereafter collectively referred to as DOE contractors).
This policy statement is not a regulation and is intended only to
provide general guidance to those persons subject to the regulations
in this part. It is not intended to establish a ``cookbook''
approach to the initiation and resolution of situations involving
noncompliance with the regulations in this part. Rather, DOE intends
to consider the particular facts of each noncompliance situation in
determining whether enforcement sanctions are appropriate and, if
so, the appropriate magnitude of those sanctions. DOE may well
deviate from this policy statement when appropriate in the
circumstances of particular cases. This policy statement is not
applicable to activities and facilities covered under E.O. 12344, 42
U.S.C. 7158 note, pertaining to Naval Nuclear Propulsion, and other
activities excluded from the scope of the rule.
(b) The DOE goal in the compliance arena is to enhance and
protect the safety and health of workers at DOE facilities by
fostering a culture among both the DOE line organizations and the
contractors that actively seeks to attain and sustain compliance
with the regulations in this part. The enforcement program and
policy have been developed with the express purpose of achieving
safety inquisitiveness and voluntary compliance. DOE will establish
effective administrative processes and positive incentives to the
contractors for the open and prompt identification and reporting of
noncompliances, performance of effective root cause analysis, and
initiation of comprehensive corrective actions to resolve both
noncompliance conditions and program or process deficiencies that
led to noncompliance.
(c) In the development of the DOE enforcement policy, DOE
recognizes that the reasonable exercise of its enforcement authority
can help to reduce the likelihood of serious incidents. This can be
accomplished by providing greater emphasis on a culture of safety in
existing DOE operations, and strong incentives for contractors to
identify and correct noncompliance conditions and processes in order
to protect human health and the environment. DOE wants to
facilitate, encourage, and support contractor initiatives for the
prompt identification and correction of problems. DOE will give due
consideration to such initiatives and activities in exercising its
enforcement discretion.
(d) DOE may modify or remit civil penalties in a manner
consistent with the mitigation and adjustment factors set forth in
this policy with or without conditions. DOE will carefully consider
the facts of each case of noncompliance and will exercise
appropriate discretion in taking any enforcement action. Part of the
function of a sound enforcement program is to assure a proper and
continuing level of safety vigilance. The reasonable exercise of
enforcement authority will be facilitated by the appropriate
application of safety requirements to DOE facilities and by
promoting and coordinating the proper contractor and DOE safety
compliance attitude toward those requirements.
II. Purpose
The purpose of the DOE enforcement program is to promote and
protect the safety and health of workers at DOE facilities by:
(a) Ensuring compliance by DOE contractors with the regulations
in this part.
(b) Providing positive incentives for DOE contractors:
(1) Timely self-identification by contractors of worker safety
deficiencies,
(2) Prompt and complete reporting of such deficiencies to DOE,
(3) Prompt correction of safety deficiencies in a manner that
precludes recurrence, and,
(4) Identification of modifications in practices or facilities
that can improve worker safety and health.
(c) Deterring future violations of DOE requirements by a DOE
contractor.
(d) Encouraging the continuous overall improvement of operations
at DOE facilities.
III. Statutory Authority
The Department of Energy Organization Act, 42 U.S.C. 7101-7385o,
the Energy Reorganization Act of 1974 (ERA), 42 U.S.C. 5801-5911 and
the Atomic Energy Act of 1954, as amended, (AEA) 42 U.S.C. 2011,
require DOE to protect the public safety and health, as well as the
safety of workers at DOE facilities, in conducting its activities,
and grant DOE broad authority to achieve this goal. Section 234C of
the AEA makes DOE contractors covered by the DOE Price-Anderson
indemnification system, and their subcontractors and suppliers,
subject to civil penalties for violations of the worker safety and
health requirements promulgated in this part. 42 U.S.C. 2282c.
IV. Responsibilities
(a) The Director, as the principal enforcement officer of the
DOE, has been delegated the authority to conduct enforcement
investigations and conferences, issue Notices of Violations and
proposed civil penalties, Enforcement Letters, Consent Orders,
subpoenas, orders to compel attendance and disclosure of information
or documents obtained during an investigation or inspection. The
Secretary issues Compliance Orders.
(b) The NNSA Administrator, rather than the Director, signs,
issues and serves the following actions that direct NNSA
contractors: subpoenas; orders to compel attendance; disclosure of
information or documents obtained during an investigation or
inspection; Preliminary Notices of Violations; and Final Notices of
Violations. The NNSA Administrator acts after consideration of the
Director's recommendation.
V. Procedural Framework
(a) Title 10 CFR part 851 sets forth the procedures DOE will use
in exercising its enforcement authority, including the issuance of
Notices of Violation and the resolution of an administrative appeal
in the event a DOE contractor elects to petition the Office of
Hearings and Appeals for review.
(b) Pursuant to 10 CFR part 851 subpart C, the Director
initiates the enforcement process by initiating and conducting
investigations and inspections and issuing a Preliminary Notice of
Violation (PNOV) with or without a proposed civil penalty. The DOE
contractor is required to respond in writing to the PNOV within 30
days, either admitting the violation and waiving its right to
contest the proposed civil penalty and paying it, admitting the
violation but asserting the existence of mitigating circumstances
that warrant either the total or partial remission of the civil
penalty, or denying that the violation has occurred and providing
the basis for its belief that the PNOV is incorrect. After
evaluation of the DOE contractor's response, the Director may
determine that no violation has occurred, that the violation
occurred as alleged in the PNOV but that the proposed civil penalty
should be remitted in whole or in part, or that the violation
occurred as alleged in the PNOV and that the proposed civil penalty
is appropriate, notwithstanding the asserted mitigating
circumstances. In the latter two instances, the Director will issue
a Final Notice of Violation (FNOV) or an FNOV and proposed civil
penalty.
(c) An opportunity to challenge an FNOV is provided in
administrative appeal provisions. 10 CFR 851.205. Any contractor
that receives an FNOV may petition the Office of Hearings and
Appeals for review of the final notice in accordance with 10 CFR
part 1003, Subpart G, within 30 calendar days from receipt of the
final notice. An administrative appeal proceeding is not initiated
until the DOE contractor against which an FNOV has been issued
requests an administrative hearing rather than waiving its right to
contest the FNOV and proposed civil penalty, if any, and paying the
civil penalty. However, it should be emphasized that DOE encourages
the voluntary resolution of a noncompliance situation at any time,
either informally prior to the initiation of the enforcement process
or by consent order before or after any formal proceeding has begun.
VI. Severity of Violations
(a) Violations of the worker safety and health requirements in
this part have varying degrees of safety and health significance.
Therefore, the relative importance of each violation must be
identified as the first step in the enforcement process. Violations
of the worker safety and health requirements are categorized in
three levels of severity to identify their relative seriousness.
Notices of Violation are issued for noncompliance which, when
appropriate, propose civil penalties commensurate with the severity
level of the violations involved.
(b) To assess the potential safety and health impact of a
particular violation, DOE will categorize violations of worker
safety and health requirements as follows:
[[Page 68295]]
(1) A Severity Level I violation is a serious violation. A
serious violation shall be deemed to exist in a place of employment
if there is a potential that death or serious physical harm could
result from a condition which exists, or from one or more practices,
means, methods, operations, or processes which have been adopted or
are in use, in such place of employment. A Severity Level I
violation would be subject to a base civil penalty of up to 100% of
the maximum base civil penalty of $70,000.
(2) A Severity Level II violation is an other-than-serious
violation. An other-than-serious violation occurs where the most
serious injury or illness that would potentially result from a
hazardous condition cannot reasonably be predicted to cause death or
serious physical harm to employees but does have a direct
relationship to their safety and health. A Severity Level II
violation would be subject to a base civil penalty up to 50% of the
maximum base civil penalty ($35,000).
(3) A Severity Level III violations is a de minimis violation.
As a general matter, these minor violations will be identified as
noncompliances and tracked to assure that appropriate remedial/
corrective action is taken to prevent their recurrence, and
evaluated to determine if generic or specific problems exist. If
circumstances demonstrate that a number of related minor
noncompliances have occurred in a reasonable time frame (e.g. all
identified during the same assessment), or that related minor
noncompliances have recurred despite the DOE contractor's having had
sufficient opportunity to correct the problem, DOE may choose in its
discretion to consider the noncompliances in the aggregate as a more
serious violation warranting a Severity Level III designation, a
Notice of Violation and a possible civil penalty. A Severity Level
III violation would be subject to a base civil penalty up to 10% of
the maximum base civil penalty ($7,000).
(c) Isolated minor violations of worker safety and health
regulations will not be the subject of formal enforcement action
through the issuance of a Notice of Violation.
(d) The severity level of a violation will be dependent, in
part, on the degree of culpability of the DOE contractor with regard
to the violation. Thus, inadvertent or negligent violations will be
viewed differently from those in which there is gross negligence,
deception or willfulness. In addition to the significance of the
underlying violation and level of culpability involved, DOE will
also consider the position, training and experience of the person
involved in the violation. Thus, for example, a violation may be
deemed to be more significant if a senior manager of an organization
is involved rather than a foreman or non-supervisory employee. In
this regard, while management involvement, direct or indirect, in a
violation may lead to an increase in the severity level of a
violation and proposed civil penalty, the lack of such involvement
will not constitute grounds to reduce the severity level of a
violation or mitigate a civil penalty. Allowance of mitigation in
such circumstances could encourage lack of management involvement in
DOE contractor activities and a decrease in protection of worker
safety and health.
(e) Other factors which will be considered by DOE in determining
the appropriate severity level of a violation are the duration of
the violation, the past performance of the DOE contractor in the
particular activity area involved, whether the DOE contractor had
prior notice of a potential problem, and whether there are multiple
examples of the violation in the same time frame rather than an
isolated occurrence. The relative weight given to each of these
factors in arriving at the appropriate severity level will be
dependent on the circumstances of each case.
(f) DOE expects contractors to provide full, complete, timely,
and accurate information and reports. Accordingly, the severity
level of a violation involving either failure to make a required
report or notification to the DOE or an untimely report or
notification will be based upon the significance of, and the
circumstances surrounding, the matter that should have been
reported. A contractor will not normally be cited for a failure to
report a condition or event unless the contractor was actually aware
or should have been aware of the condition or event which it failed
to report.
VII. Enforcement Conferences
(a) Should DOE determine, after completion of all assessment and
investigation activities associated with a potential or alleged
violation of the worker safety and health requirements, that there
is a reasonable basis to believe that a violation has actually
occurred, and the violation may warrant a civil penalty or issuance
of an enforcement action, DOE will normally hold an enforcement
conference with the DOE contractor involved prior to taking
enforcement action. DOE may also elect to hold an enforcement
conference for potential violations which would not ordinarily
warrant a civil penalty or enforcement action but which could, if
repeated, lead to such action. The purpose of the enforcement
conference is to assure the accuracy of the facts upon which the
preliminary determination to consider enforcement action is based,
discuss the potential or alleged violations, their significance and
causes, and the nature of and schedule for the DOE contractor's
corrective actions, determine whether there are any aggravating or
mitigating circumstances, and obtain other information which will
help determine the appropriate enforcement action.
(b) DOE contractors will be informed prior to a meeting when
that meeting is considered to be an enforcement conference. Such
conferences are informal mechanisms for candid pre-decisional
discussions regarding potential or alleged violations and will not
normally be open to the public. In circumstances for which immediate
enforcement action is necessary in the interest of worker safety and
health, such action will be taken prior to the enforcement
conference, which may still be held after the necessary DOE action
has been taken.
VIII. Enforcement Letter
(a) In cases where DOE has decided not to conduct an
investigation or inspection or issue a Preliminary Notice of
Violation (PNOV), DOE may send an Enforcement Letter to the
contractor signed by the Director. The Enforcement Letter is
intended to communicate the basis of the decision not to pursue
enforcement action for a noncompliance. The Enforcement Letter is
intended to direct contractors to the desired level of worker safety
and health performance. It may be used when DOE concludes the
specific noncompliance at issue is not of the level of significance
warranted to conduct an investigation or inspection or for issuance
of a PNOV. Even where a noncompliance may be significant, the
Enforcement Letter recognizes that the contractor's actions may have
attenuated the need for enforcement action. The Enforcement Letter
will typically recognize how the contractor handled the
circumstances surrounding the noncompliance and address additional
areas requiring the contractor's attention and DOE's expectations
for corrective action. The Enforcement Letter notifies the
contractor that when verification is received that corrective
actions have been implemented, DOE will close the matter.
(b) In general, Enforcement Letters communicate DOE's
expectations with respect to any aspect of the requirements of this
part, including identification and reporting of issues, corrective
actions, and implementation of the contractor's safety and health
program. DOE might, for example, wish to recognize some action of
the contractor that is of particular benefit to worker safety and
health that is a candidate for emulation by other contractors. On
the other hand, DOE may wish to bring a program shortcoming to the
attention of the contractor that, but for the lack of worker safety
and health significance of the immediate issue, might have resulted
in the issuance of a PNOV. An Enforcement Letter is not an
enforcement action. An Enforcement Letter cannot provide the basis
for a legally enforceable requirement pursuant to this part.
Accordingly, a reference to a guidance document in an Enforcement
Letter does not make the provisions of the guidance document
mandatory or otherwise legally enforceable. There must be an
independent basis for making provisions of a guidance document
mandatory such as explicit incorporation in the worker safety and
health program.
(c) With respect to many noncompliances, an Enforcement Letter
may not be required. When DOE decides that a contractor has
appropriately corrected a noncompliance or that the significance of
the noncompliance is sufficiently low, it may close out an
investigation simply through an annotation in the DOE Noncompliance
Tracking System (NTS). A closeout of a noncompliance with or without
an Enforcement Letter may only take place after DOE has confirmed
that corrective actions have been completed.
IX. Enforcement Actions
(a) This section describes the enforcement sanctions available
to DOE and specifies the conditions under which each may be used.
The basic sanctions are Notices of Violation and civil penalties.
(b) The nature and extent of the enforcement action is intended
to reflect the
[[Page 68296]]
seriousness of the violation involved. For the vast majority of
violations for which DOE assigns severity levels as described
previously, a Notice of Violation will be issued, requiring a formal
response from the recipient describing the nature of and schedule
for corrective actions it intends to take regarding the violation.
1. Notice of Violation
(a) A Notice of Violation (either a Preliminary or Final Notice)
is a document setting forth the conclusion of DOE that one or more
violations of the worker safety and health requirements has
occurred. Such a notice normally requires the recipient to provide a
written response which may take one of several positions described
in section V of this policy statement. In the event that the
recipient concedes the occurrence of the violation, it is required
to describe corrective steps which have been taken and the results
achieved; remedial actions which will be taken to prevent
recurrence; and the date by which full compliance will be achieved.
(b) DOE will use the Notice of Violation as the standard method
for formalizing the existence of a violation and, in appropriate
cases as described in this section, the Notice of Violation will be
issued in conjunction with the proposed imposition of a civil
penalty. In certain limited instances, as described in this section,
DOE may refrain from the issuance of an otherwise appropriate Notice
of Violation. However, a Notice of Violation will virtually always
be issued for willful violations, if past corrective actions for
similar violations have not been sufficient to prevent recurrence
and there are no other mitigating circumstances, or if the
circumstances otherwise warrant increasing lower severity level
violations to a higher severity level.
(c) DOE contractors are not ordinarily cited for violations
resulting from matters not within their control, such as equipment
failures that were not avoidable by reasonable quality assurance
measures, proper maintenance, or management controls. With regard to
the issue of funding, however, DOE does not consider an asserted
lack of funding to be a justification for noncompliance with the
worker safety and health requirements.
(d) DOE expects the contractors which operate its facilities to
have the proper management and supervisory systems in place to
assure that all activities at DOE facilities, regardless of who
performs them, are carried out in compliance with all the worker
safety and health requirements. Therefore, contractors are normally
held responsible for the acts of their employees and subcontractor
employees in the conduct of activities at DOE facilities.
Accordingly, this policy should not be construed to excuse personnel
errors.
(e) The limitations on remedies under Sec. 234C will be
implemented as follows:
(1) DOE may assess civil penalties of not more than $70,000 per
violation per day on contractors (and their subcontractors and
suppliers) that are indemnified by the Price-Anderson Act, 42 U.S.C.
2210(d). 10 CFR 851.4(c). DOE will not assess civil penalties on
contractors (and their subcontractors and suppliers) that are not
indemnified under the Price-Anderson Act.
(2) DOE may seek contract fee reductions through the contract's
Conditional Payment of Fee Clause in the Department of Energy
Acquisition Regulation (DEAR). See 10 CFR 851.4(b); 48 CFR parts
923, 952, 970. Policies for contract fee reductions are not
established by this policy statement. The contracting officer must
coordinate with the Director, the DOE Official to whom the Secretary
has assigned the authority to investigate the nature and extent of
compliance with the requirements of this part, before pursuing
contract fee reduction in the event of a violation relating to the
enforcement of worker safety and health concerns. Likewise, the
Director must coordinate with the contracting officer when
conducting investigations and pursuing an enforcement action.
(3) For the same violation of a worker safety and health
requirement in this part, DOE may pursue either civil penalties (for
indemnified contractors and their subcontractors and suppliers) or a
contract fee reduction, but not both. 10 CFR 851.4(d).
(4) An upper ceiling applies to civil penalties assessed on
certain contractors specifically listed in 170d. of the Atomic
Energy Act, 42 U.S.C. 2282a(d), for activities conducted at
specified facilities. For these contractors, the total amount of
civil penalties and contract penalties in a fiscal year may not
exceed the total amount of fees paid by DOE to that entity in that
fiscal year. 10 CFR 851.4(e).
(5) DOE will not issue civil penalties under both this part and
under the nuclear safety procedural regulations in 10 CFR part 820
for the same violation. 10 CFR 851.4(f).
(f) Regarding the relationship of civil penalties and contract
fee reductions where DOE may elect between remedies, DOE generally
intends to use civil penalties as the remedy for most violations.
Where DOE may elect between remedies, the Director may refer a
violation to the appropriate DOE official responsible for
administering the Conditional Payment of Fee clause to consider
invoking the provisions for reducing contract fees if the violation
is especially egregious or indicates a general failure to perform
under the contract with respect to worker safety and health. In
determining whether to refer a violation, the Director generally
would focus on factors such as willfulness, repeated violations,
death, serious injury, patterns of systemic violations, flagrant
DOE-identified violations, repeated poor performance in an area of
concern, or serious breakdown in management controls. Such factors
involved in a violation would call into question a contractor's
commitment and ability to achieve the fundamental obligation of
providing safe and healthy workplaces for workers.
2. Civil Penalty
(a) A civil penalty is a monetary penalty that may be imposed
for violations of requirements of this part. See 10 CFR 851.4(b).
Civil penalties are designed to emphasize the need for lasting
remedial action, deter future violations, and underscore the
importance of DOE contractor self-identification, reporting and
correction of violations of the worker safety and health
requirements in this part.
(b) Absent mitigating circumstances as described below, or
circumstances otherwise warranting the exercise of enforcement
discretion by DOE as described in this section, civil penalties will
be proposed for Severity Level I and II violations.
(c) DOE will impose different base level penalties considering
the severity level of the violation by Price-Anderson indemnified
contractors. Table 1 shows the daily base civil penalties for the
various categories of severity levels. However, as described above
in section IV, the imposition of civil penalties will also take into
account the gravity, circumstances, and extent of the violation or
violations and, with respect to the violator, any history of prior
similar violations and the degree of culpability and knowledge.
(d) Regarding the factor of ability of DOE contractors to pay
the civil penalties, it is not DOE's intention that the economic
impact of a civil penalty be such that it puts a DOE contractor out
of business. Contract termination, rather than civil penalties, is
used when the intent is to terminate these activities. The deterrent
effect of civil penalties is best served when the amount of such
penalties takes this factor into account. However, DOE will evaluate
the relationship of affiliated entities to the contractor (such as
parent corporations) when the contractor asserts that it cannot pay
the proposed penalty.
(e) DOE will review each case involving a proposed civil penalty
on its own merits and adjust the base civil penalty values upward or
downward appropriately. As indicated above, Table 1 identifies the
daily base civil penalty values for different severity levels. After
considering all relevant circumstances, civil penalties may be
raised or lowered based upon the adjustment factors described below
in this section. In no instance will a civil penalty for any one
violation exceed the statutory limit of $70,000. However, it should
be emphasized that if the DOE contractor is or should have been
aware of a violation and has not reported it to DOE and taken
corrective action despite an opportunity to do so, each day the
condition existed may be considered a separate violation and, as
such, subject to a separate civil penalty. Further, as described in
this section, the duration of a violation will be taken into account
in determining the appropriate severity level of the base civil
penalty.
Table 1--Severity Level Base Civil Penalties
------------------------------------------------------------------------
Base civil penalty amount
Severity level (percentage of maximum per
violation per day)
------------------------------------------------------------------------
I......................................... 100
II........................................ 50
III....................................... 10
------------------------------------------------------------------------
3. Adjustment Factors
(a) DOE's enforcement program is not an end in itself, but a
means to achieve
[[Page 68297]]
compliance with the worker safety and health requirements in this
part, and civil penalties are to emphasize the importance of
compliance and to deter future violations. The single most important
goal of the DOE enforcement program is to encourage early
identification and reporting of worker protection deficiencies and
violations of the worker safety and health requirements in this part
by the DOE contractors themselves rather than by DOE, and the prompt
correction of any deficiencies and violations so identified. DOE
believes that DOE contractors are in the best position to identify
and promptly correct noncompliance with the worker safety and health
requirements in this part. DOE expects that these contractors should
have in place internal compliance programs which will ensure the
detection, reporting and prompt correction of worker protection
related problems that may constitute, or lead to, violations of the
worker safety and health requirements in this part, before, rather
than after, DOE has identified such violations. Thus, DOE
contractors will almost always be aware of worker safety and health
problems before they are discovered by DOE. Obviously, worker safety
and health is enhanced if deficiencies are discovered (and promptly
corrected) by the DOE contractor, rather than by DOE, which may not
otherwise become aware of a deficiency until later on, during the
course of an inspection, performance assessment, or following an
incident at the facility. Early identification of worker safety and
health-related problems by DOE contractors has the added benefit of
allowing information which could prevent such problems at other
facilities in the DOE complex to be shared with all appropriate DOE
contractors.
(b) Pursuant to this enforcement philosophy, DOE will provide
substantial incentive for the early self-identification, reporting
and prompt correction of problems which constitute, or could lead
to, violations of the worker safety and health requirements. Thus,
application of the adjustment factors set forth below may result in
a reduced or no civil penalty being assessed for violations that are
identified, reported, and promptly and effectively corrected by the
DOE contractor.
(c) On the other hand, ineffective programs for problem
identification and correction are unacceptable. Thus, for example,
where a contractor fails to disclose and promptly correct violations
of which it was aware or should have been aware, substantial civil
penalties are warranted and may be sought, including the assessment
of civil penalties for continuing violations on a per day basis.
(d) Further, in cases involving factors of willfulness, repeated
violations, death, serious injury, patterns of systemic violations,
flagrant DOE-identified violations, repeated poor performance in an
area of concern, or serious breakdown in management controls, DOE
intends to apply its full statutory enforcement authority where such
action is warranted.
4. Identification and Reporting
Reduction of the base civil penalty shown in Table 1 may be
given when a DOE contractor identifies the violation and promptly
reports the violation to the DOE. In weighing this factor,
consideration will be given to, among other things, the opportunity
available to discover the violation, the ease of discovery and the
promptness and completeness of any required report. No consideration
will be given to a reduction in penalty if the DOE contractor does
not take prompt action to report the problem to DOE upon discovery,
or if the immediate actions necessary to restore compliance with the
worker safety and health requirements are not taken.
5. Self-Identification and Tracking Systems
(a) DOE strongly encourages contractors to self-identify
noncompliances with the worker safety and health requirements before
the noncompliances lead to a string of similar and potentially more
significant events or consequences. When a contractor identifies a
noncompliance through its own self-monitoring activity, DOE will
normally allow a reduction in the amount of civil penalties, unless
prior opportunities existed for contractors to identify the
noncompliance. DOE will normally not allow a reduction in civil
penalties for self-identification if significant DOE intervention
was required to induce the contractor to report a noncompliance.
(b) Self-identification of a noncompliance is possibly the
single most important factor in considering a reduction in the civil
penalty amount. Consideration of self-identification is linked to,
among other things, whether prior opportunities existed to discover
the violation, and if so, the age and number of such opportunities;
the extent to which proper contractor controls should have
identified or prevented the violation; whether discovery of the
violation resulted from a contractor's self-monitoring activity; the
extent of DOE involvement in discovering the violation or in
prompting the contractor to identify the violation; and the
promptness and completeness of any required report. Self-
identification is also considered by DOE in deciding whether to
pursue an investigation.
(c) DOE will use the voluntary Noncompliance Tracking System
(NTS) which allows contractors to elect to report noncompliances. In
the guidance document supporting the NTS, DOE will establish
reporting thresholds for reporting items of noncompliance of
potentially greater worker safety and health significance into the
NTS. Contractors may, however, use their own self-tracking systems
to track noncompliances below the reporting threshold. This self-
tracking is considered to be acceptable self-reporting as long as
DOE has access to the contractor's system and the contractor's
system notes the item as a noncompliance with a DOE safety and
health requirement. For noncompliances that are below the
reportability thresholds, DOE will credit contractor self-tracking
as representing self-reporting. If an item is not reported in NTS
but only tracked in the contractor's system and DOE subsequently
finds the facts and their worker safety and health significance have
been significantly mischaracterized, DOE will not credit the
internal tracking as representing appropriate self-reporting.
6. Self-Disclosing Events
(a) DOE expects contractors to demonstrate acceptance of
responsibility for worker safety and health by proactively
identifying noncompliance conditions in their programs and
processes. In deciding whether to reduce any civil penalty proposed
for violations revealed by the occurrence of a self-disclosing
event, DOE will consider the ease with which a contractor could have
discovered the noncompliance and the prior opportunities that
existed to discover the noncompliance. When the occurrence of an
event discloses noncompliances that the contractor could have or
should have identified before the event, DOE will not generally
allow a reduction in civil penalties for self-identification, even
if the underlying noncompliances were reported to DOE. If a
contractor simply reacts to events that disclose potentially
significant consequences or downplays noncompliances which did not
result in significant consequences to worker safety and health, such
contractor actions do not lead to the improvement in worker safety
and health contemplated by Part 851.
(b) The key test is whether the contractor reasonably could have
detected any of the underlying noncompliances that contributed to
the event. Examples of events that provide opportunities to identify
noncompliances include, but are not limited to:
(1) Prior notifications of potential problems such as those from
DOE operational experience publications or vendor equipment
deficiency reports;
(2) Normal surveillance, quality assurance assessments, and
post-maintenance testing;
(3) Readily observable parameter trends; and
(4) Contractor employee or DOE observations of potential worker
safety and health problems.
(c) Failure to utilize these types of events and activities to
address noncompliances may result in higher civil penalty
assessments or a DOE decision not to reduce civil penalty amounts.
(d) Alternatively, if, following a self-disclosing event, DOE
finds that the contractor's processes and procedures were adequate
and the contractor's personnel generally behaved in a manner
consistent with the contractor's processes and procedures, DOE could
conclude that the contractor could not have been reasonably expected
to find the single procedural noncompliance that led to the event
and thus, might allow a reduction in civil penalties.
7. Corrective Action To Prevent Recurrence
The promptness (or lack thereof) and extent to which the DOE
contractor takes corrective action, including actions to identify
root cause and prevent recurrence, may result in an increase or
decrease in the base civil penalty shown in Table 1. For example,
very extensive corrective action may result in DOE's reducing the
proposed civil penalty from the base value shown in Table 1. On the
other hand, the civil penalty may be increased if initiation of
corrective action is not prompt or if the corrective action is only
minimally acceptable. In weighing this factor, consideration will be
[[Page 68298]]
given to, among other things, the appropriateness, timeliness and
degree of initiative associated with the corrective action. The
comprehensiveness of the corrective action will also be considered,
taking into account factors such as whether the action is focused
narrowly to the specific violation or broadly to the general area of
concern.
8. DOE's Contribution to a Violation
There may be circumstances in which a violation of a DOE worker
safety and health requirement results, in part or entirely, from a
direction given by DOE personnel to a DOE contractor to either take
or forbear from taking an action at a DOE facility. In such cases,
DOE may refrain from issuing an NOV, or may mitigate, either
partially or entirely, any proposed civil penalty, provided that the
direction upon which the DOE contractor relied is documented in
writing, contemporaneously with the direction. It should be
emphasized, however, that pursuant to 10 CFR 851.7, no
interpretation of a requirement of this part is binding upon DOE
unless issued in writing by the Office of the General Counsel.
Further, as discussed above in this policy statement, lack of
funding by itself will not be considered as a mitigating factor in
enforcement actions.
9. Exercise of Discretion
Because DOE wants to encourage and support DOE contractor
initiative for prompt self-identification, reporting and correction
of problems, DOE may exercise discretion as follows:
(a) In accordance with the previous discussion, DOE may refrain
from issuing a civil penalty for a violation which meets all of the
following criteria:
(1) The violation is promptly identified and reported to DOE
before DOE learns of it or the violation is identified by a DOE
independent assessment, inspection or other formal program effort.
(2) The violation is not willful or a violation that could
reasonably be expected to have been prevented by the DOE
contractor's corrective action for a previous violation.
(3) The DOE contractor, upon discovery of the violation, has
taken or begun to take prompt and appropriate action to correct the
violation.
(4) The DOE contractor has taken, or has agreed to take,
remedial action satisfactory to DOE to preclude recurrence of the
violation and the underlying conditions which caused it.
(b) DOE will not issue a Notice of Violation for cases in which
the violation discovered by the DOE contractor cannot reasonably be
linked to the conduct of that contractor in the design, construction
or operation of the DOE facility involved, provided that prompt and
appropriate action is taken by the DOE contractor upon
identification of the past violation to report to DOE and remedy the
problem.
(c) In situations where corrective actions have been completed
before termination of an inspection or assessment, a formal response
from the contractor is not required and the inspection or integrated
performance assessment report serves to document the violation and
the corrective action. However, in all instances, the contractor is
required to report the noncompliance through established reporting
mechanisms so the noncompliance issue and any corrective actions can
be properly tracked and monitored.
(d) If DOE initiates an enforcement action for a violation, and
as part of the corrective action for that violation, the DOE
contractor identifies other examples of the violation with the same
root cause, DOE may refrain from initiating an additional
enforcement action. In determining whether to exercise this
discretion, DOE will consider whether the DOE contractor acted
reasonably and in a timely manner appropriate to the safety
significance of the initial violation, the comprehensiveness of the
corrective action, whether the matter was reported, and whether the
additional violation(s) substantially change the safety significance
or character of the concern arising out of the initial violation.
(e) It should be emphasized that the preceding paragraphs are
solely intended to be examples indicating when enforcement
discretion may be exercised to forego the issuance of a civil
penalty or, in some cases, the initiation of any enforcement action
at all. However, notwithstanding these examples, a civil penalty may
be proposed or Notice of Violation issued when, in DOE's judgment,
such action is warranted on the basis of the circumstances of an
individual case.
X. Inaccurate and Incomplete Information
(a) A violation of the worker safety and health requirements to
provide complete and accurate information to DOE, 10 CFR 851.5, can
result in the full range of enforcement sanctions, depending upon
the circumstances of the particular case and consideration of the
factors discussed in this section. Violations involving inaccurate
or incomplete information or the failure to provide significant
information identified by a DOE contractor normally will be
categorized based on the guidance in section VI, ``Severity of
Violations.''
(b) DOE recognizes that oral information may in some situations
be inherently less reliable than written submittals because of the
absence of an opportunity for reflection and management review.
However, DOE must be able to rely on oral communications from
officials of DOE contractors concerning significant information. In
determining whether to take enforcement action for an oral
statement, consideration will be given to such factors as:
(1) The degree of knowledge that the communicator should have
had regarding the matter in view of his or her position, training,
and experience;
(2) The opportunity and time available prior to the
communication to assure the accuracy or completeness of the
information;
(3) The degree of intent or negligence, if any, involved;
(4) The formality of the communication;
(5) The reasonableness of DOE reliance on the information;
(6) The importance of the information that was wrong or not
provided; and
(7) The reasonableness of the explanation for not providing
complete and accurate information.
(c) Absent gross negligence or willfulness, an incomplete or
inaccurate oral statement normally will not be subject to
enforcement action unless it involves significant information
provided by an official of a DOE contractor. However, enforcement
action may be taken for an unintentionally incomplete or inaccurate
oral statement provided to DOE by an official of a DOE contractor or
others on behalf of the DOE contractor, if a record was made of the
oral information and provided to the DOE contractor thereby
permitting an opportunity to correct the oral information, such as
if a transcript of the communication or meeting summary containing
the error was made available to the DOE contractor and was not
subsequently corrected in a timely manner.
(d) When a DOE contractor has corrected inaccurate or incomplete
information, the decision to issue a citation for the initial
inaccurate or incomplete information normally will be dependent on
the circumstances, including the ease of detection of the error, the
timeliness of the correction, whether DOE or the DOE contractor
identified the problem with the communication, and whether DOE
relied on the information prior to the correction. Generally, if the
matter was promptly identified and corrected by the DOE contractor
prior to reliance by DOE, or before DOE raised a question about the
information, no enforcement action will be taken for the initial
inaccurate or incomplete information. On the other hand, if the
misinformation is identified after DOE relies on it, or after some
question is raised regarding the accuracy of the information, then
some enforcement action normally will be taken even if it is in fact
corrected.
(e) If the initial submission was accurate when made but later
turns out to be erroneous because of newly discovered information or
advances in technology, a citation normally would not be appropriate
if, when the new information became available, the initial
submission was promptly corrected.
(f) The failure to correct inaccurate or incomplete information
that the DOE contractor does not identify as significant normally
will not constitute a separate violation. However, the circumstances
surrounding the failure to correct may be considered relevant to the
determination of enforcement action for the initial inaccurate or
incomplete statement. For example, an unintentionally inaccurate or
incomplete submission may be treated as a more severe matter if a
DOE contractor later determines that the initial submission was in
error and does not promptly correct it or if there were clear
opportunities to identify the error.
XI. Secretarial Notification and Consultation
The Secretary will be provided written notification of all
enforcement actions involving proposed civil penalties. The
Secretary will be consulted prior to taking action in the following
situations:
(a) Any action the Director, or the NNSA Administrator
concerning actions involving
[[Page 68299]]
NNSA contractors, believes warrants the Secretary's involvement; or
(b) Any proposed enforcement action for which the Secretary asks
to be consulted.
[FR Doc. 03-30287 Filed 12-5-03; 8:45 am]
BILLING CODE 6450-01-P