[Federal Register: January 26, 2005 (Volume 70, Number 16)]
[Proposed Rules]
[Page 3811-3835]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26ja05-28]
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Part III
Department of Energy
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10 CFR Part 851
Worker Safety and Health Program; Proposed Rule
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DEPARTMENT OF ENERGY
10 CFR Part 851
[Docket No. EH-RM-04-WSHP]
RIN 1901-AA99
Worker Safety and Health Program
AGENCY: Office of Environment, Safety and Health, Department of Energy.
ACTION: Supplemental notice of proposed rulemaking and opportunity for
public comment.
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SUMMARY: The Department of Energy (DOE) is issuing a supplemental
proposal to implement the statutory mandate of section 3173 of the Bob
Stump National Defense Authorization Act for Fiscal Year 2003 to
establish worker safety and health regulations to govern contractor
activities at DOE workplaces. The supplemental proposal reflects
consultations with the Defense Nuclear Facilities Safety Board (DNFSB),
as well as comments received from members of the public.
DATES: The comment period will end on April 26, 2005. Public hearings
will be held on March 29 and 30, 2005 from 9 a.m. to 12 p.m. and from
1:30 p.m. to 5 p.m. Requests to speak at the hearings should be phoned
in to Jacqueline D. Rogers, 202-586-4714, by March 28, 2005. Each
presentation is limited to 10 minutes.
ADDRESSES: Written comments (three copies) should be addressed to:
Jacqueline D. Rogers, U.S. Department of Energy, Docket Number EH-RM-
03-WSH; Room GA-098, 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.
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/rulemakingwsh.
The public hearings for this rulemaking will be held in Washington,
DC at the Holiday Inn-Washington Capitol, 550 C Street, SW.,
Washington, DC 20024.
For more information concerning public participation in this
rulemaking proceeding, see Section IV of this notice (Public Comment
Procedures).
FOR FURTHER INFORMATION CONTACT: Jacqueline D. Rogers, U.S. Department
of Energy, Room GA-089, 1000 Independence Avenue, SW., Washington DC
20585-0270, 202-586-4714, e-mail: jackie.rogers@hq.doe.gov.
SUPPLEMENTARY INFORMATION:
I. Introduction.
II. Supplemental Proposal.
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. Reviews 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 Hearings.
I. Introduction
DOE has broad authority to regulate worker safety and health
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. DOE currently exercises 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 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.
Specifically, the Laws, Regulations and DOE Directives clause set forth
in the DOE procurement regulations requires the incorporation of
applicable DOE Orders into a contract unless a contractor develops a
tailored set of standards and obtains DOE approval to incorporate this
tailored set in place of the applicable DOE Orders.
In 2002, Congress directed DOE to promulgate regulations on worker
safety and health to govern the conduct of contractors with Price-
Anderson indemnification agreements in their contracts. Specifically,
section 3173 of the National Defense Authorization Act (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; to take into
account special circumstances for facilities permanently closed,
demolished, or title transferred; achieve national security missions.''
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.
On December 8, 2003, DOE published a notice of proposed rulemaking
to implement section 3173 of the NDAA (68 FR 68276). The December
proposal was intended to codify existing DOE practices in order to
ensure the worker health and safety regulations would provide DOE
workers a level of protection equivalent to that currently afforded
them. Specifically, under the December proposal, a contractor would
comply with either a set of requirements based primarily on the
provisions of DOE Order 440.1A, Worker Protection Management for DOE
Federal and Contractor Employees, the current DOE Order on worker
health and safety, or a tailored set of requirements approved by DOE.
The contractor would implement these requirements pursuant to a worker
health and safety program approved by DOE.
On January 1, 2004, DOE held a video conference to allow DOE
employees, DOE contractors, contractor employees, and employee
representatives to become
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familiar with the December proposal. DOE held public hearings on the
December proposal in Washington, DC on January 21, 2004, and in Golden,
Colorado on February 4, 2004. In addition to the oral comments at the
public hearings, DOE received approximately 50 written comments on the
December proposal.
On February 27, 2004, after becoming aware that the DNFSB had
concerns with regard to the December proposal, DOE suspended the
rulemaking in order to consult with the DNFSB and to consider comments
received from other stakeholders on the December proposal. (69 FR 9277)
As a result of its consultation with the DNFSB and consideration of
other comments, DOE is now restarting the rulemaking proceeding through
the issuance of this notice that sets forth a supplemental proposal,
announces additional public hearings and provides the opportunity for
further written comments.
II. Supplemental Proposal
The supplemental proposal contains several provisions that differ
from those in the December proposal. These proposed provisions
incorporate approaches put forth by the DNFSB during consultations, as
well as by the comments on the December proposal. Specifically, the
supplemental proposal contains provisions that would: (1) Codify a
minimum set of safety and health requirements with which contractors
must comply; (2) establish a formal exemption process which requires
approval by the Secretarial Officer with line management responsibility
and provides for significant involvement by the Assistant Secretary for
Environment, Safety and Health; (3) delineate the role of the worker
safety and health program and its relationship to integrated safety
management; (4) set forth the general duties of contractors responsible
for DOE workplaces; and (5) limit the scope of the regulations to
contractor activities at DOE sites.
Subpart C of the supplemental proposal sets forth the proposed
worker safety and health requirements with which a contractor would
comply. These proposed requirements correspond, to a large extent, with
the provisions set forth in Appendix A to the December proposal. These
requirements include a variety of OSHA and consensus standards, and
these standards would be legally binding on a contractor to the extent
that a requirement is applicable to the hazards identified for a
particular workplace environment. DOE invites comments on the question
of whether the OSHA and consensus standards included in today's
supplemental proposal provide an appropriate basis for enforcing worker
safety and health requirements at DOE facilities.
DOE does not expect that codification of these requirements will
result in significant increased costs since, to a very large extent,
they are based on existing provisions of DOE Order 440.1A, DOE Order
420 and DOE Notice 450.7 that have been incorporated into most existing
DOE contracts through the Integration of Environment, Health and Safety
into Work Planning and Execution clause and the Laws, Regulations and
DOE Directives clause. Accordingly, most contractors already should be
implementing the substance of the proposed requirements to the extent
applicable to the hazards identified for a particular workplace
environment. In addition, DOE expects that the implementation guidance
for the proposed requirements would be essentially the same as the
implementation guidance for the corresponding provisions in DOE Order
440.1A, DOE Order 420 and DOE Notice 450.7 and that contractors would
make use of analyses, evaluations and work planning already undertaken
to meet their existing contractual worker health and safety
obligations. DOE requests comments from any person who believes that
codification will result in significant increased costs. These comments
should identify the reasons for the increased costs and potential
changes to the supplemental proposal that could reduce or eliminate
increased costs.
Subpart D of the supplemental proposal sets forth a proposed
exemption process by which the Secretarial Officer with line management
responsibility for a contractor can relieve the contractor from
complying with a particular requirement with respect to a particular
workplace. The Assistant Secretary for Environment, Health and Safety
would have the opportunity to review and comment on an exemption prior
to its issuance and, in the case of a non-NNSA contractor, would have
the option to non-concur in the issuance of an exemption. Subpart D is
based on the existing exemption process for nuclear safety requirements
that is set forth in 10 CFR part 820. Subpart D contains specific
provisions that would require any exemption to: Adequately protect the
safety and health of workers; be consistent with a safe and healthful
workplace free from recognized workplace hazards that are causing or
are likely to cause death or serious bodily injury; not permit exposure
limits that are less protective than the limits required by subpart C;
not diminish the level of protection afforded workers; and involve a
special circumstance. The proposed list of special circumstances
includes three situations not included in the exemption process set
forth in Part 820. The additional situations would be situations where:
an exemption would contribute to tailoring the requirements of this
part to reflect the hazards and facilities associated with a particular
work environment; a facility is to be, permanently closed and
demolished, or title is expected to be transferred to another entity
for reuse; or an exemption would contribute substantially to achieving
a national security mission of the Department of Energy in an efficient
and timely manner. The proposed addition of these three special
circumstances is intended to ensure the supplemental proposal would
have the regulatory flexibility mandated by the NDAA.
DOE requests comments as to whether the exemption process is the
most appropriate or effective method to: Ensure sufficient regulatory
flexibility to address the myriad of workplace environments across the
DOE complex; maintain a level of protection equivalent to that
currently afforded workers; take advantage of worker safety and health
programs already implemented to meet existing contractual obligations;
and minimize unnecessary costs. Comments should identify potential
modifications or alternative approaches.
Subpart B of the supplemental proposal sets forth the proposed
requirements for a contractor to develop, implement, and maintain a
worker safety and health program and for DOE to approve the program.
Subpart B would make clear that the overarching objectives for a
program must be: Provision of a place of employment that is free from
recognized workplace hazards that are causing or are likely to cause
death or serious bodily harm to workers; and adequately protecting
workers from identified hazards. These objectives are intended to
ensure that the statutory standards in the AEA and the Occupational
Safety and Health Act are met.
Subpart B is based on the existing process for establishing worker
safety and health programs pursuant to the Integration of Environment,
Health and Safety into Work Planning and Execution clause and DOE Order
440. Specifically, a contractor responsible for a covered workplace
would identify existing and potential workplace hazards and assess the
risk of associated workers' injuries and illnesses. To do
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this, the contractor would (1) define the scope of work; (2) identify
relevant features of the work environment; (3) perform activity level
hazard analyses to identify hazards; and (4) assess the risk of injury
and illness associated with those hazards. After identifying hazards
and assessing risks, the contractor would identify appropriate hazard
controls to protect workers from the identified hazards prior to
initiating work activities. Selection of hazard controls would take
into account all hazards to ensure the development of an integrated set
of hazard controls. The contractor would prioritize and implement
abatement actions for identified hazards according to risk, implement
interim protective measures pending final abatement, and protect
workers from imminent danger.
Subpart B provides that a DOE contractor responsible for one or
more covered workplaces at a DOE site would submit to DOE, for its
approval, a written worker safety and health program describing site-
specific methods and provisions for complying with the program
requirements. At sites with multiple contractors responsible for
various workplaces at the site, the contractors would coordinate with
each other to ensure that the worker safety and health programs at the
site are integrated and consistent. Beginning one year after the
publication of the final rule, no work could proceed at a covered DOE
workplace without a safety and health program in place that had been
approved by the CSO or the DOE site manager if approval authority were
delegated by the CSO. To ensure consistency throughout program offices
and across DOE, however, the CSO or site manager would consult with the
Assistant Secretary for Environment, Safety and Health in the
evaluation and approval of contractor programs. To ensure timely
evaluation and processing of each contractor-submitted program and to
avoid work stoppage due to unnecessary delays, the CSO or the Site
Manager would be obligated to act on a contractor-submitted program
within 90 days of receipt of the program. DOE requests comments as to
how the efficiency of the approval process might be increased and, in
particular, as to the need for separate DOE approval of sub-elements of
a worker safety and health program.
A contractor would 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 associated hazards. The
process for defining the scope of work, analyzing the hazards
associated with the work, and identifying the applicable standards
should be an iterative process performed continually to monitor changes
in workplace activities and processes and to provide feedback on
program performance. Through this process, a contractor would evaluate
significant changes or additions to workplace activities to identify
new hazards and to assess whether the existing program effectively
addressed the scope and nature of the work and related hazards. This
iterative process would provide the contractor with the information
necessary to make changes and improvements to all aspects of the
program as needed. On an annual basis, the contractor would either
submit its updated worker safety and health program to DOE for approval
or, if no changes are made to the program over the past year, a letter
to that effect.
Most contractors already have worker safety and health programs in
effect. DOE expects contractors to build on these existing programs and
not to duplicate work already undertaken to meet existing contractual
obligations. For example, under paragraph 9 of the DOE Order 440.1A,
Contractor Requirements document, DOE contractors have for almost a
decade been required to: ``Identify existing and potential workplace
hazards and evaluate risk of associated worker injury and illness;
analyze or review: (1) Designs for new facilities and modifications to
existing facilities and equipment; (2) operations and procedures; and
(3) equipment, product, and services; assess worker exposure to
chemical, physical, biological, or ergonomic hazards through
appropriate workplace monitoring (including personal, area, wipe, and
bulk sampling); biological monitoring; and observation; evaluate
workplaces and activities (accomplished routinely by workers,
supervisors, and managers and periodically by qualified worker
protection professionals); and report and investigate accidents,
injuries, and illnesses and analyze related data for trends and lessons
learned.'' Similarly, under the Integration of Environment, Health and
Safety into Work Planning and Execution clause, contractors are
required to: Identify and evaluate workplace hazards, select an agreed-
upon set of safety and health standards to address those specific
hazards, and implement administrative and engineering controls to
prevent or mitigate specific workplace hazards.
Section 851.4 of the supplemental proposal sets forth the proposed
general duties of a contractor responsible for a covered workplace.
Specifically, the contractor would be responsible for: Ensuring the
workplace is free from recognized workplace hazards that are causing or
are likely to cause death or serious bodily harm; providing workers
adequate protection from the hazards identified for the workplace;
complying with the workplace safety and health requirements set forth
in subpart C of the supplemental proposal that are applicable to the
hazards identified for the workplace; complying with any compliance
order issued by the Secretary that is applicable to the workplace;
ensuring work is performed in accordance with the worker health and
safety program for the covered workplace; and reporting to DOE and
investigate each occurrence, including any near miss incident, that
causes or gives raise to a significant likelihood of death or serious
bodily harm to a worker.
Section 851.1 of the supplemental proposal would limit its scope to
contractor activities at DOE sites. Federal employees would continue to
be covered by existing programs for federal employees. Section 851.1
also would exclude contractor employees at DOE sites currently
regulated by OSHA. DOE believes this exclusion is appropriate since
there are no defense nuclear facilities located at these sites and the
contractors responsible for workplaces at these sites do not have
Price-Anderson indemnification agreements in their contracts.
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)
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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 (65 FR 67249, 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 the
Regulatory Flexibility Act's (5 U.S.C. 601(3)). The Regulatory
Flexibility Act's definition incorporates the definition of small
business concerns 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
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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. Three copies of
written comments should be submitted to the address indicated in the
ADDRESSES section of this notice. To help DOE review the submitted
comments, commenters are requested to reference the provision 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-04-WSHP.
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/rulemakingwsh.
To assist DOE in making public comments available on a website,
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/rulemakingwsh.
If DOE must cancel the hearing, it will make every
effort to give advance notice.
List of Subjects in 10 CFR Part 851
Civil penalty, Hazardous substances, Incorporation by reference,
Occupational safety and health, Safety, Reporting and recordkeeping
requirements.
Issued in Washington, DC on January 14, 2005.
John Spitaleri Shaw,
Assistant Secretary for Environment, Safety and Health.
For the reasons set forth in the preamble, title 10, chapter III of
the Code of Federal Regulations is proposed to be amended by adding
part 851 to read as set forth below.
PART 851--WORKER SAFETY AND HEALTH PROGRAM
Subpart A--General Provisions
Sec.
851.1 Scope and exclusions.
851.2 Purpose.
851.3 Definitions.
851.4 General rule.
851.5 Compliance Order.
851.6 Interpretations.
851.7 Information and records.
851.8 Compliance date.
851.9 Enforcement.
851.10 Workers rights.
Subpart B--Worker Safety and Health Program
851.100 Worker safety and health program.
[[Page 3817]]
851.101 Approval and maintenance of the worker safety and health
program.
Subpart C--Safety and Health Requirements
851.200 Worker safety and health requirements.
851.201 Worker safety and health standards.
851.202 Construction safety.
851.203 Fire protection.
851.204 Explosives safety.
851.205 Pressure retaining component safety.
851.206 Motor vehicle safety.
851.207 Biological safety.
851.208 Firearms safety.
851.209 Industrial hygiene.
851.210 Occupational medicine.
Subpart D--Exemption Relief
851.300 Exemptions.
851.301 Exemption criteria.
851.302 Terms and conditions.
Subpart E--Enforcement Process
851.400 Investigations and inspections.
851.401 Settlement.
851.402 Preliminary notice of violation.
851.403 Final notice of violation.
851.404 Administrative appeal.
851.405 Direction to NNSA contractors.
Appendix A 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 and exclusions.
(a) The worker safety and health requirements in this part govern
the conduct of contractor activities at DOE sites, with the exception
of sites listed in paragraph (b) of this section.
(b) This part does not apply to a DOE site:
(1) Regulated by the Occupational Safety and Health Administration
(OSHA) on [date on which final rule is issued]; 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.
(c) This part does not apply to radiological hazards to the extent
regulated by 10 CFR parts 820, 830 or 835.
Sec. 851.2 Purpose.
This part establishes the:
(a) Safety and health requirements that a contractor responsible
for a covered workplace must implement through a worker safety and
health program that provides its workers with a safe and healthful
workplace in which workplace hazards are abated, controlled or
otherwise mitigated in a manner that provides reasonable assurance that
workers are adequately protected from identified hazards; and
(b) Procedures for investigating whether a violation of a
requirement has occurred, for determining the nature and extent of any
such violation, and for imposing an appropriate remedy.
Sec. 851.3 Definitions.
Activity-level hazard analysis means an analysis of work-related
hazards relating to a specific job activity, task, operation or
process.
AEA means the Atomic Energy Act of 1954, 42 U.S.C. 2011 et seq.
Cognizant Secretarial Officer means the Assistant Secretary, Deputy
Administrator, Program Office Director, or equivalent DOE official who
has primary line management responsibility for a contractor.
Compliance Order means an Order issued by the Secretary to a
contractor that mandates a remedy, work stoppage, or other action to
address a situation that violates, potentially violates, or otherwise
is inconsistent with a requirement of this part.
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 under contract with DOE, or a
subcontractor to such an entity, and includes any affiliated entity
such as a parent organization.
Director means a DOE Official to whom the Secretary has assigned
the authority to investigate the nature and extent of compliance with
the requirements of this part.
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 a contractor.
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, if appropriate, imposes a remedy with which the recipient
of the order must comply.
General Counsel means the General Counsel of DOE.
Hazard control means a procedure, practice, means, method,
operation, work process, or other control used to prevent, abate or
mitigate workplace hazards and associated risks.
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 if the General Counsel determines such action to be
appropriate.
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.
Remedy means any action (including but not limited to, 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) necessary or
appropriate to rectify, prevent, or penalize a violation of a
requirement of this part, including a compliance order issued by the
Secretary pursuant to this part.
Secretary means the Secretary of Energy.
Site Manager means the DOE official who has primary responsibility
for overall management of a DOE site.
Worker means a person who performs work for or on behalf of DOE,
including an independent contractor, a DOE contractor or subcontractor
employee, or any other person who performs work at a covered workplace.
Workplace hazard means a physical, chemical, biological, or
radiological hazard with any potential to cause illness, injury, or
death to a person.
Workplace safety and health programmatic requirements means a set
of requirements that addresses related workplace hazards in a
comprehensive manner, including requirements on construction safety,
fire protection, firearms safety, explosives safety, industrial
hygiene, occupational
[[Page 3818]]
medicine, pressure safety motor vehicle safety, and biosurety.
Workplace safety and health requirement means a workplace safety
and health standard or programmatic requirement.
Workplace safety and health standard means a standard which
addresses a workplace hazard by establishing limits, requiring
conditions, or prescribing the adoption or use of one or more
practices, means, methods, operations, or processes.
Sec. 851.4 General rule.
The contractor responsible for a covered workplace must:
(a) Ensure the workplace is free from recognized workplace hazards
that are causing or are likely to cause death or serious bodily harm;
(b) Provide workers adequate protection from the hazards identified
for the workplace;
(c) Comply with the workplace safety and health requirements set
forth in subpart C of this part that are applicable to the hazards
identified for the workplace;
(d) Comply with any compliance order issued by the Secretary
pursuant to Sec. 851.5 that is applicable to the workplace;
(e) Ensure work is performed in accordance with the worker health
and safety program for the covered workplace; and
(f) Report to DOE and investigate each occurrence, including any
near miss incident that causes or gives raise to a significant
likelihood of death or serious bodily harm to a worker.
Sec. 851.5 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. 851.6 Interpretations.
(a) The Office of the General Counsel is 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. 851.7 Information and records.
(a) A contractor must maintain complete and accurate records as
necessary to substantiate compliance with the requirements of this
part, including but not limited to records on inventory information,
hazard assessment, exposure measurements, exposure controls, and worker
injuries and illnesses.
(b) A contractor may neither conceal nor destroy any information
concerning non-compliance or potential non-compliance 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.
(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. 851.8 Compliance date.
Contractors must achieve compliance with the requirements of this
part no later than [Insert date 1 year from effective date of the
rule], unless an exemption granted pursuant to subpart D of this part
provides otherwise.
Sec. 851.9 Enforcement.
(a) A contractor that has entered into an agreement of
indemnification under section 170d. of the AEA(or any subcontractor or
supplier thereto) and that violates (or whose employee violates) any
requirement of this part is subject to a civil penalty of up to $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.
(b) A contractor that violates any requirement 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) DOE may not penalize a contractor under both paragraphs (a) and
(b) of this section for the same violation of a requirement of this
part.
(d) For contractors listed in subsection d. of section 234A of the
AEA, 42 U.S.C. 2282a(d), the total amount of civil penalties under
paragraph (a) and contract penalties under paragraph (b) of this
section may not exceed the total amount of fees paid by DOE to the
contractor in that fiscal year.
(e) DOE may not penalize a contractor under both sections 234A and
234C of the AEA for the same violation.
Sec. 851.10 Workers rights.
(a) Workers at a covered workplace have the right, without
reprisal, to participate in activities described in this section on
official time;
(b) Workers at a covered workplace also have the right, without
reprisal to:
(1) Have access to:
(i) DOE safety and health publications;
(ii) The worker safety and health program for the covered
workplace;
(iii) The standards, controls, and procedures applicable to the
covered workplace;
(iv) The safety and health poster that informs the worker of
relevant rights and responsibilities.
(2) Be notified when monitoring results indicate the worker was
overexposed to hazardous materials;
(3) Observe monitoring or measuring of hazardous agents and have
the results of his or her own exposure monitoring;
(4) Accompany DOE personnel during an inspection of the workplace;
(5) Request and receive results of inspections and accident
investigations;
(6) Express concerns related to worker safety and health;
(7) 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; and
(8) Stop work 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.
[[Page 3819]]
Subpart B--Worker Safety and Health Program
Sec. 851.100 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
that ensures:
(1) Workplaces are free from recognized workplace hazards that are
causing or are likely to cause death or serious bodily harm; and
(2) Workers are adequately protected from identified hazards.
(b) A worker safety and health program must:
(1) Include provisions for:
(i) Defining the scope of the work to be performed prior to its
initiation;
(ii) Identifying relevant features of the work environment,
including designs and features of facilities, equipment, operations and
procedures important to a safe and healthful workplace prior to the
initiation of work activities;
(iii) Identifying and evaluating general workplace hazards,
specific job hazards, and potential hazards that may arise from
unforeseeable conditions;
(iv) Undertaking routine activity-level hazard analyses to:
(A) Evaluate designs of new facilities and modifications to
existing facilities and equipment for potential workplace hazards; and
(B) Evaluate operations and procedures to identify workplace
hazards;
(v) Considering all hazards, including radiological hazards, in
order to ensure development of an integrated set of hazard controls to
protect workers;
(vi) Assessing the risk of associated injury and illness to workers
from the identified hazards;
(vii) Assessing worker exposure to chemical, physical, biological,
radiological, or safety workplace hazards through appropriate workplace
monitoring;
(viii) Documenting assessments for chemical, physical, biological,
and safety workplace hazards using recognized exposure assessment and
testing methodologies and use of accredited and certified laboratories;
(ix) Recording observations, testing and monitoring results; and
(x) Reviewing safety and health information.
(2) Provide for the prevention, abatement and mitigation of
identified workplace hazards through:
(i) Prioritization and implementation of actions according to the
potential hazard to workers;
(ii) Implementation of interim protective measures pending final
action;
(iii) Protection of workers from imminently dangerous conditions;
(iv) Selection of hazard controls based on the following hierarchy:
(A) Elimination of the hazard;
(B) Engineered controls;
(C) Work practices and administrative controls; and
(D) Personal protective equipment; and
(v) Emphasis on reducing hazards to workers when purchasing
equipment and services.
(3) Provide for the effective implementation of the worker safety
and health requirements of subpart C of this part in a manner tailored
to:
(i) Reflect activities and hazards associated with a particular
work environment;
(ii) Take into account special circumstances at 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; and
(iii) Achieve national security missions of the Department of
Energy in an efficient and timely manner.
(4) Identify the hazard controls to be used to provide adequate
protection from identified hazards at the activity level in a tailored
manner for a particular work environment or the process for selecting
and identifying such controls in the future prior to the initiation of
work activities;
(5) Identify situations for which the contractor has concluded an
exemption pursuant to subpart D is needed and the process for
identifying other such situations in the future;
(6) Provide for feedback on the worker safety and health program
and for its continuous improvement;
(7) Ensure that all workers are provided with information and
training needed to perform their duties in a safe and healthful manner;
(8) Ensure the worker safety and health program is consistent and
integrated with other safety activities at the workplace;
(9) Contain provisions to ensure compliance by subcontractors; and
(10) Document the process of developing and maintaining the worker
safety and health program at a level commensurate with the complexity
and hazards associated with the workplace.
Sec. 851.101 Approval and maintenance of the worker safety and health
program.
(a) By July 25, 2005, contractors must submit for DOE approval a
written worker safety and health program that meets the requirements of
Sec. 851.100.
(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 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.
(b) The Cognizant Secretarial Officer or, if approval authority is
delegated by the Cognizant Secretarial Officer, the Site Manager must
review and approve the contractor's worker safety and health program,
in consultation with the Assistant Secretary for Environment, Safety
and Health, within 90 days after receipt from the contractor. Beginning
January 26, 2006, no work may be performed at a covered workplace
unless the Cognizant Secretarial Officer or the Site Manager has
approved the worker safety and health program for the workplace.
(c) A contractor must maintain its worker safety and health program
by:
(1) Evaluating and updating the worker safety and health program at
least annually to reflect when significant changes or additions in the
activities and hazards are made, or a change in contractors occurs;
(2) Annually submitting to the Cognizant Secretarial Officer or, if
approval authority is delegated by the Cognizant Secretarial Officer,
the DOE Site Manager 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;
(3) Performing an internal audit of its worker safety and health
program no less frequently than every 36 months and transmitting the
results of the audit to the DOE Site Manager, the Cognizant Secretarial
Officer, the Assistant Secretary for Environment, Safety and Health,
and the Director; and
(4) Incorporating in the worker safety and health program any
changes, conditions, or workplace safety and health standards directed
by DOE.
[[Page 3820]]
Subpart C--Safety and Health Requirements
Sec. 851.200 Worker safety and health requirements.
(a) A contractor responsible for a covered workplace must comply
with the worker safety and health requirements set forth in this
subpart as applicable to the workplace hazards identified for
facilities and activities under its control.
(b) Nothing in this subpart shall be construed to limit the
authority of DOE to impose additional requirements on a contractor.
Sec. 851.201 Worker safety and health standards.
(a) The following regulations of the Occupational Safety and Health
Administration (OSHA) in effect as of [Insert Effective Date of Final
Rule]:
(1) 29 CFR part 1910, Occupational Safety and Health Standards,
except 29 CFR part 1910.109;
(2) 29 CFR part 1915, Occupational Safety and Health Standards for
Shipyard Employment;
(3) 29 CFR part 1917, Marine Terminals;
(4) 29 CFR part 1918, Safety and Health Regulations for
Longshoring;
(5) 29 CFR part 1926, Safety and Health Regulations for
Construction; and
(6) 29 CFR part 1928, Occupational Safety and Health Standards for
Agriculture.
(b) The National Fire Protection Association (NFPA) codes and
standards listed in Table 1 below.
Table 1.--National Fire Protection Association Codes and Standards
------------------------------------------------------------------------
NFPA No. Title Edition
------------------------------------------------------------------------
1.................................. Uniform Fire Code..... 2003
10................................. Standard for Portable 2002
Fire Extinguishers.
11A................................ Standard for Medium- 1999
and High-Expansion
Foam Systems.
11................................. Standard for Low-, 2002
Medium-, and High-
Expansion Foam.
12................................. Standard on Carbon 2000
Dioxide Extinguishing
Systems.
12A................................ Standard on Halon 1301 1997
Fire Extinguishing
Systems.
13................................. Standard for the 2002
Installation of
Sprinkler Systems.
14................................. Standard for the 2003
Installation of
Standpipe and Hose
Systems.
15................................. Standard for Water 2001
Spray Fixed Systems
for Fire Protection.
16................................. Standard for the 2003
Installation of Foam-
Water Sprinkler Foam-
Water Spray Systems.
17A................................ Standard for Wet 2002
Chemical
Extinguishing Systems.
17................................. Standard for Dry 2002
Chemical
Extinguishing Systems.
20................................. Standard for the 2003
Installation of
Stationary Pumps for
Fire Protection.
22................................. Standard for Water 2003
Tanks for Private
Fire Protection.
24................................. Standard for the 2002
Installation of
Private Fire Service
Mains and Their
Appurtenances.
25................................. Standard for 2002
Inspection, Testing,
and Maintenance of
Water-Based Fire
Protection Systems.
30A................................ Codes for Motor Fuel 2003
Dispensing Facilities
and Repair Garages.
30................................. Flammable and 2003
Combustible Liquids
Code.
31................................. Standard for the 2001
Installation of Oil-
Burning Equipment.
33................................. Standard for Spray 2003
Application Using
Flammable or
Combustible Materials.
37................................. Standard for the 2002
Installation and Use
of Stationary
Combustion Engines
and Gas.
45................................. Standard on Fire 2000
Protection for
Laboratories Using
Chemicals.
50A................................ Standard for Gaseous 1999
Hydrogen Systems at
Consumer sites.
50B................................ Standard for Liquefied 1999
Hydrogen Systems at
Consumer Sites.
50................................. Standard for Bulk 2001
Oxygen Systems at
Consumer Sites.
51................................. Standard for the 2002
Design and
Installation of
Oxygen Fuel Gas
Systems for Welding,
Cutting, and Allied
Processes.
51B................................ Standard for Fire 2003
Prevention During
Welding, Cutting, and
Other Hot Work.
52................................. Compressed Natural Gas 2002
(CNG) Vehicular Fuel
Systems Code.
54................................. ANSI Z223.1, 2002 2002
National Fuel Gas
Code.
55................................. Standard for Storage, 2003
Use and Handling of
Compressed Gases and
Cryogenic Fluids in
Portable and
Stationary
Containers, Cylinders
and Tanks.
57................................. Liquefied Natural Gas 2002
(LNG) Vehicular Fuel
Systems Codes.
58................................. Liquefied Petroleum 2001
Gas Code.
59A................................ Standard for the 2001
Production, Storage,
and Handling of
Liquefied Natural Gas
(LNG).
59................................. Utility LP-Gas Plant 2001
Code.
69................................. Standard on Explosion 2002
Prevention Systems.
70................................. National Electrical 2002
Code.
70E................................ Standard for 2002
Electrical Safety
Requirements for
Employee Workplaces.
72................................. National Fire Alarm 2002
Code.
73................................. Electrical Inspection 2000
Code for Existing
Dwellings.
75................................. Standard for the 2003
Protection of
Information
Technology Equipment.
80................................. Standard for Fire 1999
Doors and Fire
Windows.
82................................. Standard on 1999
incinerators and
Waste and Linen
Handling Systems and
Equipment.
85................................. Boiler and Combustion 2001
Systems Hazards Code.
86................................. Standard for Ovens and 2003
Furnaces.
88A................................ Standard for Parking 2002
Structures.
90A................................ Standard for the 2002
Installation of Air-
Conditioning and
Ventilating Systems.
90B................................ Standard for the 2002
Installation of Warm
Air Heating and Air-
Conditioning Systems.
91................................. Standard for Exhaust 1999
Systems for Air
Conveying of Vapors,
Gases, Mists, and
Noncombustible
Particulate Solids.
96................................. Standard for 2001
Ventilation Control
and Fire Protection
of Commercial Cooking
Operations.
97................................. Standard glossary of 2003
terms Relating to
Chimneys, Vents, and
Heat-Producing
Appliances.
99................................. Standard for Health 2002
Care Facilities.
99C................................ Standard on Gas and 2002
Vacuum Systems.
[[Page 3821]]
101B............................... Code for Means of 2002
Egress for Buildings
and Structures.
101................................ Life Safety Code...... 2003
102................................ Standard for 1995
Grandstands, Folding
and Telescopic
Seating, Tents, and
Membrane Structures.
105................................ Standard for the 2003
Installation of Smoke
Door Assemblies.
110................................ Standard for Emergency 2002
and Standby Power
Systems.
111................................ Standard on Stored 2001
Electrical Energy
Emergency and Standby
Power Plants.
115................................ Standard for Laser 2003
Fire Protection.
204................................ Standard for Smoke and 2002
Heat Venting.
211................................ Standard for Chimneys, 2003
Fireplaces, Vents,
and Solid Fuel-
Burning Appliances.
214................................ Standard on Water- 2000
Cooling Towers.
220................................ Standard on Types of 1999
Building Construction.
221................................ Standard for Fire 2000
Walls and Fire
Barrier Walls.
230................................ Standard for the Fire 2003
Protection of Storage.
232................................ Standard for the 2000
Protection of records.
241................................ Standard for 2000
Safeguarding
Construction,
Alteration, and
Demolition Operations.
307................................ Standard for the 2000
Construction and Fire
Protection of Marine
Terminals, Piers, and
Wharves.
318................................ Standard for the 2002
Protection of
Semiconductors
Fabrication
Facilities.
326................................ Standard for the 1999
Safeguarding of Tanks
and Containers for
Entry, Cleaning, or
Repair.
385................................ Standard for Tank 2000
Vehicles for
Flammable and
Combustible Liquids.
407................................ Standard for Aircraft 2001
Fuel Servicing.
408................................ Standard for Aircraft 1999
Hand Portable Fire
Extinguishers.
409................................ Standard on Aircraft 2001
Hangers.
415................................ Standard on Airport 2002
terminal Building,
Fueling Ramp
Drainage, and Loading
Walkways.
418................................ Standard for Heliports 2001
430................................ Code for the Storage 2000
of Liquid and Solid
Oxidizers.
432................................ Code for the Storage 2002
of Organic Peroxide
Formulations.
434................................ Code for the Storage 2002
of Pesticides.
472................................ Standard for 2002
Professional
Competence of
Responders to
Hazardous Materials
Incidents.
473................................ Standard for 2002
Competencies for EMS
Personnel Responding
to Hazardous
Materials Incidents.
484................................ Standard for 2002
Combustible Metals,
Metal Powders, and
Metal Dusts.
490................................ Code for the Storage 2002
of Ammonium Nitrate.
495................................ Explosive Materials 2001
Code.
496................................ Standard for Purged 2003
and Pressurized
Enclosures for
Electrical Equipment.
498................................ Standard for Safe 2001
Havens and
Interchange Lots for
Vehicles Transporting
Explosives.
502................................ Standard for Road 2001
Tunnels, Bridges, and
Other Limited Access
Highways.
505................................ Fire Safety Standard 2002
for Powered
Industrial Trucks
Including Type
Designations, Areas
of Use, Conversions,
Maintenance, and
Operations.
520................................ Standard on 1999
Subterranean Spaces.
560................................ Standard for the 2002
Storage, Handling,
and Use of Ethylene
Oxide for
Sterilization and
Fumigation.
600................................ Standard on Industrial 2000
Fire Brigades.
601................................ Standard for Security 2000
Services in Fire Loss
Prevention.
654................................ Standard for the 2000
Prevention of Fire
and Dust Explosions
from the
Manufacturing,
Processing, and
Handling of
Combustible
Particulate Solids.
655................................ Standard for 2001
Prevention of Sulfur
Fires and Explosions.
664................................ Standard for the 2002
Prevention of Fires
and Explosions in
Wood Processing and
Woodworking
Facilities.
704................................ Standard System for 2001
the Identification of
the Hazards of
Materials for
Emergency Response.
750................................ Standard on Water Mist 2003
Fire Protection
Systems.
780................................ Standard for the 2000
Installation of
Lighting Protection
Systems.
801................................ Standard for Fire 2003
Protection for
Facilities Handling
Radioactive Materials.
820................................ Standard for Fire 2003
Protection in
Wastewater Treatment
and Collective
Facilities.
853................................ Standard for the 2003
Installation of
Stationary Fuel Cell
Power System.
909................................ Code for the 2001
Protection of
Cultural Resources.
914................................ Code for Fire 2001
Protection of
Historic Structures.
1000............................... Standard for Fire 2000
Service Professional
Qualifications
Accreditation and
Certification Systems.
1001............................... Standard for Fire 2002
Fighter Professional
Qualifications.
1002............................... Standard on Fire 2003
Apparatus Drivers/
Operator Professional
Qualifications.
1003............................... Standard for Airport 2000
Fire Fighter
Professional
Qualifications.
1006............................... Standard for Rescue 2003
Technician
Professional
Qualifications.
1021............................... Standard for Fire 2003
Officer Professional
Qualifications.
1041............................... Standard for Fire 2002
Service Instructor
Professional
Qualifications.
1051............................... Standard for Wildland 2002
Fire Fighter
Professional
Qualifications.
1061............................... Standard for 2002
Professional
Qualifications for
Public Safety
Telecommunicator.
1071............................... Standard for Emergency 2000
Vehicle Technician
Professional
Qualifications.
1141............................... Standard for Fire 2003
Protection in Planned
Building Groups.
1142............................... Standard on Water 2001
Supplies for Suburban
and Rural Fire
Fighting.
1143............................... Standard for Wildland 2003
Fire Management.
1144............................... Standard for 2002
Protection of Life
and Property from
Wildfire.
1221............................... Standard for the 2002
Installation,
Maintenance, and Use
of Emergency Services
Communications
Systems.
1403............................... Standard on Live Fire 2002
Training Evolutions.
1404............................... Standard for Fire 2002
Service Respiratory
Protection Training.
1410............................... Standard on Training 2000
for Initial Emergency
Scene Operations.
1451............................... Standard for a Fire 2002
Service Vehicle
Operations Training
Program.
[[Page 3822]]
1500............................... Standard on Fire 2002
Department
Occupational Safety
and Health Program.
1521............................... Standard for Fire 2002
Department Safety
Officer.
1561............................... Standard on Emergency 2002
Services Incident
Management System.
1581............................... Standard on Fire 2000
Department Infection
Control Program.
1582............................... Standard on 2003
Comprehensive
Occupational Medical
Program for Fire
Departments.
1583............................... Standard on Health- 2000
Related Fitness
Programs for Fire
Fighters.
1670............................... Standard on Operations 1999
and Training for
Technical Rescue
Incidents.
1710............................... Standard for the 2001
Organization and
Deployment of Fire
Suppression
Operations, Emergency
Medical Operations,
and Special
Operations to the
Public by Career Fire
Departments.
1851............................... Standard on Selection, 2001
Care and Maintenance
of Structural Fire
Fighting Protective
Ensembles.
1852............................... Standard on Selection, 2002
Care, and Maintenance
of Open-Circuit Self-
Contained Breathing
Apparatus (SCBA).
1901............................... Standard for 2003
Automotive Fire
Apparatus.
1906............................... Standard for Wildland 2001
Fire Apparatus.
1911............................... Standard for Service 2002
Test of Fire pump
Systems on Fire
Apparatus.
1912............................... Standard for Fire 2001
Apparatus
Refurbishing.
1914............................... Standard for Testing 2002
Fire Department
Aerial Devices.
1915............................... Standard for Fire 2000
Apparatus Preventive
Maintenance Program.
1925............................... Standard on Marine 1998
Fire-Fighting Vessels.
1931............................... Standard on design of 1999
and Design
Verification Tests
for the Fire
Department Ground
Ladders.
1932............................... Standard on Use, 1999
Maintenance, and
Service Testing of
Fire Department
Ground Ladders.
1936............................... Standard on Powered 1999
Rescue Tool Systems.
1951............................... Standard on Protective 2001
Ensemble for USAR
Operations.
1961............................... Standard on Fire Hose. 2002
1962............................... Standard for the 2003
Inspection, Care, and
Use of Fire Hose,
Couplings, and
Nozzles.
1963............................... Standard for Fire Hose 2003
Connections.
1964............................... Standard for Spray 2003
Nozzles.
1965............................... Standard for Hose 2003
Appliances.
1971............................... Standard on Protective 2000
Ensembles for
Structural Fire
Fighting.
1975............................... Standard on Station/ 1999
Work Uniforms for
Fire and Emergency
Services.
1976............................... Standard on Protective 2000
Ensemble for
Proximity Fire
Fighting.
1977............................... Standard on Protective 1998
Clothing and
Equipment for
Wildland Fire
Fighting.
1981............................... Standard on Open- 2002
Circuit Self-
Contained Breathing
Apparatus for Fire
and Emergency
Services.
1982............................... Standard on Personal 1998
Alert Safety Systems
(PASS).
1983............................... Standard on Fire 2001
Service Life Safety
Rope and System
Components.
1989............................... Standard on Breathing 2003
Air Quality for Fire
and Emergency
Services Respiratory
Protection.
1991............................... Standard on Vapor- 2000
Protective Ensembles
for Hazardous
Materials Emergencies.
1992............................... Standard on Liquid 2000
Splash-Protective
Ensembles and
Clothing for
Hazardous Materials
Emergencies.
1994............................... Standard on Protective 2001
Ensembles for
Chemical/Biological
Terrorism Incidents.
1999............................... Standard on Protective 2003
Clothing for
Emergency Medical
Operations.
2001............................... Standard on Clean 2000
Agent Fire
Extinguishing Systems.
2112............................... Standard on Flame- 2001
Resistant Garments
for Protection of
Industrial Personnel
Against Flash Fire.
2113............................... Standard on Selection, 2001
Care, Use, and
Maintenance of Flame-
Resistant Garments
for Protection of
Industrial Personnel
Against Flash Fire.
5000............................... Building Construction 2003
and Safety Code.
------------------------------------------------------------------------
(c) The codes listed in Tables 2 through 5 published by the
American Society of Mechanical Engineers (ASME), the American National
Standards Institute (ANSI), the American Petroleum Institute (API), the
American Water Works Association (AWWA), and Underwriters Laboratories
(UL) as applicable to pressure retaining components including pressure
vessels, piping, valves, fittings, flanges and gaskets.
Table 2.--ASME Boiler and Pressure Vessel Code (2004)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Section Title
--------------------------------------------------------------------------------------------------------------------------------------------------------
I............................................ Power Boilers.
II........................................... Materials.
III.......................................... Rules for Construction of Nuclear Facility Components.
IV........................................... Heating Boilers.
V............................................ Non Destructive Examination.
VI........................................... Recommended Rules for Care and Operation of Heating Boilers.
VII.......................................... Recommended Guidelines for the Care of Power Boilers.
VIII......................................... Pressure Vessels.
IX........................................... Welding and Brazing Qualifications.
X............................................ Fiber-Reinforced Plastic Pressure Vessels.
XI........................................... Rules for In-Service Inspection of Nuclear Power Plant Components.
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 3823]]
Table 3.--ANSI/ASME Piping Codes
------------------------------------------------------------------------
Section Title Edition
------------------------------------------------------------------------
B31.1.............................. Power Piping.......... 2001
B31.2.............................. Fuel Gas Piping....... 1968
B31.3.............................. Process Piping........ 2002
B31.4.............................. Pipeline 2002
Transportation
Systems, Liquid
Hydrocarbon, Other
Liquids.
B31.5.............................. Refrigeration Piping 2001
and Hat Transfer
Components.
B31.8.............................. Gas Transmission and 2004
Distribution Piping
Systems.
B31.9.............................. Building Services 1996
Piping.
B31.11............................. Slurry Transportation 2003
Piping Systems.
------------------------------------------------------------------------
Table 4.--ASME Codes for Valves, Fittings, Flanges and Gaskets
------------------------------------------------------------------------
Section Title Edition
------------------------------------------------------------------------
B16.1.............................. Cast Iron Pipe Flanges 1998
and Fittings.
B16.3.............................. Malleable Iron 1998
Threaded Fittings.
B16.4.............................. Gray Iron Threaded 1998
Fittings.
B16.5.............................. Pipe Flanges and 1996
Flanged Fittings.
B16.9.............................. Factory-Made Wrought 2001
Buttwelding Fitting.
B16.10............................. Face-to-Face and End- 2000
to-End Dimensions of
Valves.
B16.11............................. Forged Fittings Socket- 2001
Welding and Threaded.
B16.12............................. Cast Iron Threaded 1998
Drainage Fittings.
B16.14............................. Ferrous Pipe Plugs, 1991
Bushings and Locknuts
with Pipe Threads.
B16.15............................. Cast Iron Bronze 1985
Threaded Fittings.
B16.18............................. Cast Copper Alloy 2001
Solder Joint Pressure
Fittings.
B16.20............................. Metallic Gasket for 1998
Pipe Flanges: Ring-
Joint Spiral-Wound
and Jacketed.
B16.21............................. Nonmetallic Flat 1992
Gaskets for Pipe
Flanges.
B16.22............................. Wrought Copper and 2001
Copper Alloy Solder
Joint Pressure
Fittings.
B16.23............................. Cast Copper Alloy 2002
Solder Joint Drainage
Fittings.
B16.25............................. Buttwelding Ends...... 1997
B16.26............................. Cast Copper Alloy 1998
Fittings for Flared
Copper Tubes.
B16.28............................. Wrought Steel 1994
Buttwelding Short
Radius Elbows and
Returns.
B16.29............................. Wrought Copper and 2001
Wrought Copper Alloy
Solder Joint Drainage
Fittings.
B16.33............................. Manually Operated 2001
Metallic Gas Valves
for Use in Gas Piping
Systems up to 125psi.
B16.34............................. Valves-Flanged, 1996
Threaded and Welding
End.
B16.36............................. Orifice Flanges....... 1996
B16.38............................. Large Metallic Valves 1985
for Gas Distribution
(manually operated
NPS 2\1/2\ to 12, 125
psig).
B16.39............................. Malleable Iron 2003
Threaded Pipe Unions.
B16.40............................. Manually Operated 2002
Thermoplastic Gas
Shutoffs and Valves
in Gas Distribution
Systems.
B16.42............................. Ductile Iron Pipe 2001
Flanges and Fittings:
Classes 150 and 300.
B16.44............................. Manually Operated 1968
Metallic Gas Valves
for Use in Above
Ground Piping Systems
up to 5psi.
B16.45............................. Cast Iron Fittings for 2002
Solvent Drainage
Systems.
B16.47............................. Large diameter Steel 1999
Flanges: NPS26
through NPS60.
B16.48............................. Steel Line Blanks..... 2002
B16.49............................. Factory-Made Wrought 2001
Steel Buttwelding
Induction Bends.
B16.50............................. Wrought Copper and 1992
Copper Alloy Braze-
Joint Pressure
Fittings.
------------------------------------------------------------------------
Table 5.--Codes and Standards for Additional Pressure Retaining
Components
------------------------------------------------------------------------
Section Title Edition
------------------------------------------------------------------------
Compressors:
ASME B19.1..................... Safety Standard for 1995
Air Compressor
Systems.
ASME B19.3..................... Safety Standard for 1991
Compressor for
Process Industries.
Pumps:
API-610........................ Centrifugal Pump for 2003
General Refinery
Service, American
Petroleum Institute.
Tanks:
ASME B96.1..................... Welder Aluminum Alloy 1991
Storage Tanks.
API-620........................ Design and 2002
Construction of Large
Welded Low Pressure
Storage.
API-650........................ Atmospheric Welded 1996
Steel Tanks for Oil
Storage, American
Petroleum Institute.
AWWA-D100...................... Welded Steel Tanks for 1996
Water Storage,
American Water Works
Association.
API-2000....................... Venting Atmospheric 1998
and Low Pressure
Storage Tanks.
API-2510....................... Design and 2001
Construction of
Liquid Petroleum Gas
(LPG) Installations.
UL-58.......................... Steel Underground 1998
Tanks for Flammable
and Combustible
Liquids, Underwriters
Valve Laboratories.
UL-142......................... Steel Aboveground 2003
Tanks for Flammable
and Combustible
Liquids, Underwriters
Laboratories.
API-653........................ Tank Inspection, 2001
Repair, and
Reconstruction,
American Petroleum
Institute.
Pressure Vessel:
API-660........................ Shell and Tube Heat 2001
Exchange to General
Refinery Service,
American Petroleum
Institute.
------------------------------------------------------------------------
[[Page 3824]]
(d) Exposure limits and technical requirements of the American
National Standards Institute (ANSI) contained in the following
standards:
(1) Z136.1, Safe Use of Lasers (2000);
(2) Z88.2, Practices for Respiratory Protection (2004); and
(3) Z49.1, Safety in Welding, Cutting and Allied Processes,
Sections 4.3 and E4.3 (1999).
(e) American Conference of Governmental Industrial Hygienists
(ACGIH) standard, Threshold Limit Values for Chemical Substances and
Physical Agents and Biological Exposure Indices, in effect as of
[Insert Effective Date of The Final Rule]. This standard shall be used
in lieu of OSHA Permissible Exposure Limits in the event that the ACGIH
Threshold Limit Values are lower (more protective) than the comparable
OSHA limit.
Sec. 851.202 Construction safety.
(a) A contractor responsible for a workplace with a construction
project must:
(1) Prepare an activity-level hazard analysis prior to commencement
of affected work. Such an analysis shall:
(i) Identify foreseeable hazards and planned protective and
mitigative measures;
(ii) Provide drawings and/or other documentation of protective
measures that a Professional Engineer or other competent person is
required to prepare; and
(iii) Define the qualifications of competent persons required for
workplace inspections.
(2) Inform workers of foreseeable hazards and the protective and
mitigative measures described within the activity-level hazard analysis
prior to beginning work on the affected construction operation.
(3) Require workers to utilize protective or mitigative measures as
a condition of employment as well as acknowledge being informed of the
hazards and protective and mitigative measures.
(4) During periods of active construction, have a designated
representative, who has received specific training and is knowledgeable
about the hazards of construction, on site at all times to conduct and
document daily inspections of the workplace, and to identify and
correct hazards and instances of noncompliance with project safety and
health requirements. Workers must be instructed to report to the
designated representative unforeseen hazards not previously identified
or evaluated. If immediate corrective action is not possible or the
hazard falls outside of project scope, the contractor must immediately
notify affected workers, post appropriate warning signs, implement
needed interim control measures, and notify DOE of the action taken.
The contractor or the designated representative must stop work in the
affected area until protective or mitigative measures are established.
(b) With respect to a construction project above the monetary
threshold established by the Davis-Bacon Act (40 U.S.C. 276a), a
contractor must prepare a written construction project safety and
health plan to implement the requirements of paragraph (a) of this
section and obtain approval of the plan by DOE prior to commencement of
any work covered by the plan. In the plan, the contractor shall
designate the individual(s) responsible for on-site implementation of
the plan, specify qualifications for those individuals, and provide a
list of those project operations to which the health and safety plan
applies.
Sec. 851.203 Fire protection.
(a) A contractor responsible for a workplace must establish and
implement a comprehensive fire protection and response program. This
program must contain, at a minimum, the following elements:
(1) A current policy statement that describes specific management
commitments to support a level of fire protection and response
capability sufficient to minimize the potential for losses from fire
and related hazards consistent with the best class of protected
property in private industry.
(2) Comprehensive, written fire protection criteria that
incorporate the requirements of this section, the provisions of the
standards delineated in Sec. 851.201, and additional site-specific
aspects of the fire protection program. Site-specific aspects include
the organization, training, and responsibilities of the fire protection
staff, administrative aspects of the fire protection program, and
requirements for the design, installation, operability, inspection,
maintenance, and testing of fire protection systems.
(3) Written fire safety procedures governing the use and storage of
combustible, flammable, radioactive, and hazardous materials so as to
minimize the risk from fire. Such procedures must also exist for fire
protection system impairments and for activities such as smoking, hot
work, safe operation of process equipment, and other fire prevention
measures that contribute to the decrease in fire risk.
(4) A requirement to incorporate the DOE fire protection program in
the plans and specifications for all new facilities and for significant
modifications of existing facilities, including a written review by a
qualified fire protection engineer of plans, specifications,
procedures, and acceptance tests.
(5) Fire hazards analyses (FHAs), developed using a graded
approach, for all nuclear facilities, significant new facilities, and
facilities that represent unique or significant fire safety risks.
(6) Access to a qualified and trained fire protection staff,
including a fire protection engineers, technicians, and fire-fighting
personnel.
(7) A current Baseline Needs Assessment that establishes the
minimum required capabilities of site fire-fighting forces needed to
assure worker safety and health. This includes minimum staffing,
apparatus, facilities, equipment, training, fire pre-plans, off-site
assistance requirements, and procedures. Information from this
assessment must be incorporated into the site Emergency Plan. Such
assessments shall be updated as needed but at least every three years.
(8) Written pre-fire strategies, plans, and standard operating
procedures for special hazards to enhance the effectiveness of any site
fire-fighting forces.
(9) A comprehensive, documented fire protection self-assessment
program, which includes all aspects (program and facility) of the fire
protection program. Assessments must be performed on a regular basis,
but at least every three years.
(10) A program to identify, prioritize, and monitor the status of
fire protection-related appraisal findings/recommendations until final
resolution is achieved.
(11) Provision for interim compensatory measures to minimize fire
risk if final resolution under paragraph (a)(10) will be significantly
delayed.
(12) A process for reviewing and recommending approval of fire
safety code and standard equivalencies to the Site Manager.
(13) Fire safety performance measures, approved by the Site
Manager, that provide a basis for evaluating the success or failure of
all major elements of the site fire protection and response program.
(b) The contractor must review in-depth, and if appropriate,
perform or update any analysis or assessment required under paragraphs
(a)(5), (a)(7), and (a)(9) of this section at least once every three
years. With respect to non-nuclear facilities, the Site Manager may
approve a longer period for updating the
[[Page 3825]]
document via a written memorandum to the contractor.
(c) A contractor responsible for the design of a new DOE facility
or major modification to an existing DOE facility must ensure that the
design provides:
(1) A reliable water supply of adequate capacity for fire
suppression.
(2) Noncombustible or fire-resistive construction, where
appropriate, including complete fire-rated barriers, that is
commensurate with the fire hazard to isolate hazardous occupancies and
to minimize fire spread.
(3) Automatic fire extinguishing systems throughout all nuclear and
other significant facilities and in all areas subject to significant
life safety hazards.
(4) A means to summon the fire department in the event of a fire,
such as a fire alarm signaling system.
(5) A means to notify and evacuate building occupants in the event
of a fire, such as a fire detection or fire alarm system and
illuminated, protected egress paths.
(6) Physical access and appropriate equipment to facilitate
effective intervention by the fire department, such as an interior
standpipe system(s) in multi-story or large facilities with complex
configurations.
(7) Fire and related hazards that are unique to DOE and are not
addressed by industry codes and standards shall be protected by
isolation, segregation, or use of special fire control systems, such as
inert gas or explosion suppression, as determined by the FHA.
Sec. 851.204 Explosives safety.
A contractor responsible for a workplace involving the use of
explosive materials (except materials used only for routine
construction, demolition, and tunnel blasting) must establish and
implement a comprehensive explosives safety program. This program must
contain, at a minimum, the following elements:
(a) The Contractor must establish plans and procedures to achieve:
(1) Protection of explosives from abnormal stimuli and adverse
environments;
(2) Proper hazard identification, analysis, controls and
communication;
(3) Safe work environment, including proper personnel protection,
safe equipment, processing, testing, and material handling, and
(4) Effective measures for security and emergency control.
(b) The contractor must maintain limits and controls on the maximum
number of personnel permitted in the workplace, commensurate with
personnel protection and work efficiency.
(c) The contractor must require use of personal protective
equipment in order to protect personnel from the specific hazards of
the operations.
(d) Pursuant to an approved training and certification program, the
contractor must properly train personnel before they are assigned to
explosive operations or to operate any explosive transport vehicle.
Each contractor must have an approved training and certification
program.
(e) Quantity-distance criteria must account for:
(1) The types and severity of hazards each explosive material
present;
(2) The construction and orientation of facilities to which the
criteria are applied; and
(3) The degree of protection desired for personnel and facilities
adjacent to the explosives operations.
(f) The contractor must base the level of protection required for
an explosives activity on the hazard class (accident potential) for the
explosive activity involved, as follows:
(1) Bays for Class IV (negligible probability of accidental
initiation) activities must provide protection from fire hazard
effects.
(2) Bays for Class III (low accident potential) activities must
provide protection from explosion propagation from bay-to-bay within
buildings and between buildings located at intra-line or magazine
distance.
(3) Bays for Class II (moderate accident potential) activities must
comply with the requirements of Class III bays, and in addition provide
protection to prevent fatalities and severe personnel injuries in all
occupied areas other than the bay of occurrence.
(4) Bays for Class I (high accident potential) activities must
comply with the requirements of Class II bays, and in addition provide
protection to prevent serious injuries to all personnel, including
personnel performing the activity, persons in other occupied areas, and
transients.
(5) Bays for joint explosives-plutonium activities must also comply
with the following:
(i) Bays for Uncased Explosives Plutonium Activities. Where it is
necessary to store, handle, or process uncased explosives components
and plutonium in the same bay, the enclosing structure and its
ventilation, electrical, fire protection, and utility systems must be
designed to assure that, if all the explosives present should detonate,
radiation exposures are within applicable limits for hypothesized
accidental releases. The documented safety analysis governs the
quantity of plutonium allowed in such a bay. Activities may be
performed in Class IV bays if only insensitive high explosives (IHE),
IHE subassemblies, or IHE weapons are present; however, criticality
considerations must govern the quantity of plutonium allowed.
(ii) Bays for Cased Explosives Plutonium Activities. When handling
or processing cased high explosive components that contain plutonium,
the enclosing structure must be designed as a Class II (moderate
accident potential) explosives bay. Storage must conform to Class III
(low accident potential) requirements. The plutonium quantity must be
limited to 55 lbs (25 kg) per bay. Activities may be performed in Class
IV bays if only IHE, IHE subassemblies, or IHE weapons are present;
however, criticality considerations govern the quantity of plutonium
allowed.
(f) Fire protection. A comprehensive operational safety plan shall
be developed to control personnel and facility design. Automatic fire
suppression systems must be installed in all buildings containing high
explosives and plutonium, with the exception of storage magazines. The
fire protection system design must ensure that the system in any bay
remains operable should detonation occur in any other bay. Firebreaks
shall be established around all explosives handling facilities.
(g) Explosive facility siting and design criteria references.
Blast-resistant design for personnel and facility protection must be
based on the TNT equivalency of the maximum quantity of explosives and
propellants, plus 20 per cent. The technical basis for location,
engineering, design, and operation (under normal and potential design
basis accident conditions) of buildings must comply with approved
guidelines to achieve the most conservative design for the protection
of workers.
(h) Electrical storms and lightning protection. The contractor must
provide protection to personnel working in explosive areas, and
personnel near those areas, from the consequences of an explosive
incident resulting from a lightning strike by developing and
implementing a Lightning Detection and Warning Plan that includes as a
minimum:
(1) Evaluation of lightning risk;
(2) Lightning protection system installation, employing Mast,
Catenary, Integral Air Terminal, surge suppressor, bonding, Faraday
cage, or partial Faraday cage;
(3) Techniques and procedures for initial installation of each
approved lightning protection system;
[[Page 3826]]
(4) Techniques and procedures for retrofitting structures to a
partial Faraday cage type of lightning protection, if a decision is
made to retrofit the structure; and
(5) Administrative control such as stopping of work and evacuation
of personnel in the event of a lightning warning.
Sec. 851.205 Pressure retaining component safety.
(a) A contractor responsible for a workplace must establish safety
policies and procedures to ensure that pressure systems are designed,
fabricated, tested, inspected, maintained, repaired, and operated by
trained and qualified personnel in accordance with applicable and sound
engineering principles.
(b) If national consensus codes and standards in Sec. 851.201 are
determined not to be applicable following an independent peer review
process, the contractor must implement DOE-approved measures ( if
allowed by the governing provisions of the code or consensus standard)
based upon a reasonable interpretation of the intent of existing
standards. If the applicable provisions of the code or consensus
standard do not permit clarification or interpretation, the contractor
must provide equivalent protection and ensure safety equal to or
superior to the intent of the closest applicable code or standard
following an independent peer review process, subject to DOE approval.
Sec. 851.206 Motor vehicle safety.
(a) A contractor responsible for a workplace must implement a motor
vehicle safety program to protect the safety and health of all drivers
and passengers in Government-owned or -leased motor vehicles and
powered industrial equipment (i.e., fork trucks, tractors, platform
lift trucks, and other similar specialized equipment powered by an
electric motor or an internal combustion engine).
(b) The contractor must tailor the motor vehicle safety program to
the individual DOE site or facility, based on an analysis of the needs
of that particular site or facility.
(c) The motor vehicle safety program must include:
(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; and
(8) Enforcement provisions.
Sec. 851.207 Biological safety.
A contractor responsible for a workplace must establish and
implement a biological safety program that:
(a) Establishes an Institutional Biosafety Committee (IBC) or
equivalent. The IBC shall:
(1) Review any work with biological etiologic agents for compliance
with appropriate CDC, NIH, WHO, and other international, Federal,
State, and local guidelines and assess the containment level,
facilities, procedures, practices, and training and expertise of
personnel; and
(2) Review for compliance the site security, safeguards, and
emergency management plans and procedures, as related to work with
biological etiologic agents.
(b) Maintains a readily retrievable inventory and status of
biological etiologic agents, and provides 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
etiologic and program.
(c) Provides for submission to the head of the appropriate DOE
field element, for review and concurrence before transmittal to the
Center for Disease Control (CDC), 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 biological select agents.
(d) Provides for submission to the head of the appropriate DOE
field element a copy 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 biological select agent for transfer,
receipt, and handling in the registered facility. Submit the completed
copy of the Form EA-101, documenting final disposition and/or
destruction of the select agent, within 10 days of completion of the
Form EA-101.
(e) Confirms that the site safeguards and security plans and
emergency management programs address biological etiologic agents, with
particular emphasis on biological select agents.
(f) Establishes an immunization policy for personnel working with
biological etiologic agents based on the DOE facility evaluation of
risk and benefit of immunization.
Sec. 851.208 Firearms safety.
(a) A contractor responsible for a workplace must establish
firearms safety policies and procedures for security operations and
training to ensure proper accident prevention controls are in place.
(1) Written procedures must address firearms safety, engineering
and administrative controls, as well as personal protective equipment
requirements. For security operations conducted in accordance with
policy on counter terrorism, use of Department of Defense military type
masks for respiratory protection by security personnel is acceptable.
(2) As a minimum, procedures must be established for:
(i) Storage, handling, cleaning, inventory, and maintenance of
firearms and associated ammunition;
(ii) Activities such as loading, unloading, and exchanging
firearms. These procedures must address use of bullet containment
devices and those techniques to be used when no bullet containment
device is available;
(iii) Use and storage of pyrotechnics, explosives, and/or explosive
projectiles;
(iv) Handling misfires, duds, and unauthorized discharges;
(v) Live fire training, qualification, and evaluation activities;
(vi) Training and exercises using engagement simulation systems;
(vii) Medical response at firearms training facilities; and
(viii) Use of firing ranges by personnel other than DOE or DOE
contractor protective forces personnel.
(b) A contractor must ensure that personnel responsible for the
direction and operation of the firearms safety program are
professionally qualified and have sufficient time and authority to
implement the procedures under this section.
(c) A contractor must ensure that firearms instructors and armorers
have been certified by the Safeguards and Security National Training
Center to conduct the level of activity provided. Personnel must not be
allowed to conduct activities for which they have not been certified.
(d) A contractor must conduct formal appraisals assessing
implementation of procedures, personnel responsibilities, and duty
assignments to ensure overall policy objectives and performance
[[Page 3827]]
criteria are being met by qualified, responsible personnel.
(e) A contractor must implement procedures related to firearms
training, live fire range safety, qualification, and evaluation
activities, including procedures requiring that:
(1) Personnel must successfully complete initial firearms safety
training before being issued any firearms. Authorization to remain in
armed status will continue only if the employee demonstrates the
technical and practical knowledge of firearms safety semi-annually;
(2) Authorized armed personnel must demonstrate through documented
limited scope performance tests both technical and practical knowledge
of firearms handling and safety on a semi-annual basis;
(3) All firearms training lesson plans must incorporate safety for
all aspects of firearms training task performance standards. The lesson
plans must follow the standards set forth by the Safeguards and
Security Central Training Academy's standard training programs;
(4) Firearms safety briefings must immediately precede training,
qualifications, and evaluation activities involving live fire and/or
engagement simulation systems;
(5) A safety analysis approved by DOE line management must be
developed for the facilities and operation of each live fire range
prior to implementation of any new training, qualification, or
evaluation activity. Results of these analyses must be incorporated
into procedures, lesson plans, exercise plans, and limited scope
performance tests;
(6) Firing range safety procedures must be conspicuously posted at
all primary range facilities;
(7) Live fire ranges, approved by the Site Manager, must be
properly sited to protect personnel on the range, as well as personnel
and property not associated with the range.
(f) Contractors must develop a safety or risk analysis for all
facilities or areas in which firearms will be introduced in accordance
with the local protection strategy. Such analyses must be approved by
DOE line management.
(g) Contractors must ensure that the transportation, handling,
placarding, and storage of munitions conform to the applicable
requirements of DOE policy directives.
Sec. 851.209 Industrial hygiene.
(a) A contractor responsible for a covered workplace must implement
a comprehensive and effective industrial hygiene program to reduce the
risk of work-related disease or illness.
(b) The industrial hygiene program must include the following
elements:
(1) Initial or baseline surveys of all work areas or operations to
identify and evaluate potential worker health risks;
(2) Coordination with planning and design personnel to anticipate
and control health hazards that proposed facilities and operations
would introduce;
(3) Coordination with cognizant occupational medical,
environmental, health physics, and work planning professionals;
(4) Policies and procedures to mitigate the risk from identified
and potential occupational carcinogens; and
(5) Professionally and technically qualified industrial hygienists
to manage and implement the industrial hygiene program.
Sec. 851.210 Occupational medicine.
(a) A contractor responsible for a covered workplace must establish
and maintain an Occupational Medical Program (OMP) to provide
comprehensive occupational health services to contractor employees. At
sites with operations performed by more than one contractor, several
contractors may agree to use services provided under a single
contractor's OMP. A contractor having no employees who work on the DOE
site for 30 or more days in a year and who has no workers enrolled in a
medical surveillance program, regardless or length of employment, is
not required to have an OMP.
(b) The OMP must be directed by a site occupational medical
director (SOMD) who must be a graduate of a school of medicine or
osteopathy and licensed for the practice of medicine in the state in
which the site is located.
(c) Occupational medical physicians, occupational health nurses,
physician's assistants, nurse practitioners, psychologists, and other
occupational health personnel on the OMP staff must be licensed,
registered, or certified as required by Federal or State law where
employed.
(d) A contractor must promote communication and coordination
between all environmental, safety, and health groups and specifically
provide the SOMD with the following:
(1) Current information about actual or potential work-related site
hazards (chemical, physical, biological, or ergonomic);
(2) Employee job-task and hazard-analysis information, including
essential job functions;
(3) Actual or potential work-site exposures of each employee prior
to medical placement or surveillance evaluations;
(4) Notification of employee job transfers;
(5) Notification when an employee has been absent because of an
injury or illness for more than 5 consecutive workdays (or an
equivalent time period for those individuals on an alternative work
schedule);
(6) Information on, and the opportunity to participate in, worker
health protection team meetings and committees;
(7) Access to the workplace for evaluation of job conditions and
issues relating to workers' health;
(e) The SOMD, or designated OMP staff, must:
(1) Plan and implement the OMP;
(2) Prepare, review and update annually a formal written plan
detailing the methods and procedures implementing the OMP and
documenting the contractor's compliance with this subsection; and
(3) Participate in worker protection teams to build and maintain
necessary partnership among workers, managers, and safety and health
professionals in establishing and maintaining a safe and healthful
workplace.
(f) A record, containing any medical, clinical, health history,
exposure history, and demographic data collected under the OMP, must be
developed and maintained for each employee for whom medical services
are provided. Beginning January 2007, all OMP medical records should be
kept in an electronic format.
(1) Employee medical, psychological, and assistance records must be
kept confidential, protected from unauthorized access, and stored under
conditions that ensure their long-term preservation. Access to these
records shall be provided in accordance with DOE Privacy Act
implementing regulations.
(2) The SOMD must determine the content of the worker health
evaluations, which must be conducted under the direction of a licensed
physician, in accordance with current sound and acceptable medical
practices and all pertinent statutory and regulatory requirements, such
as the Americans with Disabilities Act.
(3) Each SOMD must maintain an up-to-date list of all evaluations
and tests that are offered, submit the list annually through the
cognizant Field Element to the Office of Environment, Safety and
Health, and make this list openly available to all site workers.
(4) The purpose and nature of these medical tests and their results
must be
[[Page 3828]]
clearly communicated verbally and in writing to each worker offered
testing;
(5) The communication must be documented in the medical chart by
the signature of the occupational health examiner and the worker.
(6) The following health evaluations must be conducted when
determined necessary by the SOMD for the purpose of providing initial
and continuing assessment of employee fitness for duty:
(i) At the time of employment entrance or job transfer, a Medical
Placement examination will evaluate the individual's general health and
physical and emotional capacity to perform work to establish a baseline
record of physical condition and assure fitness for duty.
(ii) Periodic hazard-based medical monitoring or qualification-
based fitness for duty evaluations required by regulations and
standards, or as recommended by the SOMD, will be provided on the
frequency required.
(iii) Diagnostic examinations will evaluate employee's injuries and
illnesses to determine work-relatedness, the degree of disability, and
if needed, referral for definitive care.
(iv) After a work-related absence or an absence of 5 or more
consecutive workdays (or an equivalent time period for those
individuals on an alternative work schedule), a return to work
evaluation will determine the individual's physical and emotional
capacity to perform work and return to duty.
(v) At the time of separation from employment, the individual's
general health will be evaluated to establish a record of physical
condition.
(g) The SOMD must place an individual under medical restrictions
when health evaluations so indicate that the worker should not perform
certain job tasks.
(1) The SOMD or designee must notify the worker and contractor
management when employee work restrictions are imposed or removed.
(2) The OMP must monitor ill and injured workers to facilitate
their rehabilitation and safe return to work and to minimize lost time
and its associated costs.
(3) Occupational medical physicians and medical staff must, on a
timely basis, communicate results of health trend evaluations to
management and site worker health protection professionals responsible
for mitigating worksite hazards.
(h) The SOMD must review and approve the medical and behavioral
aspects of employee counseling and health promotional programs,
including the following types:
(1) Contractor-sponsored or contractor-supported employee
assistance programs;
(2) Contractor-sponsored or contractor-supported alcohol and other
substance abuse rehabilitation programs; and
(3) Contractor-sponsored or contractor-supported wellness programs.
(4) The SOMD must review the medical aspects of immunization
programs, blood-borne pathogens programs, and bio-hazardous waste
programs to evaluate their conformance to applicable guidelines.
(i)(1) The SOMD must review and develop procedures consistent with
the medical portion of the site emergency and disaster preparedness
plans.
(2) The SOMD and staff must integrate the medical portion with
nearby community emergency and disaster plans.
Subpart D--Exemption Relief
Sec. 851.300 Exemptions.
(a) The Cognizant Secretarial Officer who is primarily responsible
for the contractor activity to which a worker safety and health
requirement applies may grant a temporary or permanent exemption from
that requirement.
(b) The Cognizant Secretarial Officer:
(1) Must provide a copy of the exemption request and supporting
documentation to the Assistant Secretary for Environment, Safety and
Health for a thirty day review;
(2) May not grant the exemption prior to the conclusion of the
thirty day review period unless the Assistant Secretary for
Environment, Safety and Health comments earlier; and
(3) If the Cognizant Secretarial Officer is not part of NNSA, may
not grant the exemption if the Assistant Secretary for Environment,
Safety and Health non-concurs during the thirty day review period.
(c) An exemption must set forth in writing:
(1) The requirement for which the exemption is granted;
(2) The basis for the determination that the criteria in Sec.
851.301 have been met;
(3) The workplaces to which and the circumstances under which the
exemption applies; and
(4) Any terms and conditions to which the exemption is subject.
(d) The authority to grant or deny exemptions may not be delegated.
Sec. 851.301 Exemption criteria.
(a) An exemption to a worker safety and health requirement must:
(1) Be consistent with law;
(2) Adequately protect the health and safety of workers;
(3) Be consistent with a safe and healthful workplace free from
recognized hazards that are causing or are likely to cause death or
serious bodily injury;
(4) Not permit exposure limits that are less protective than the
limits required by this part or not otherwise diminish the level of
protection afforded workers; and
(5) Involve one of the ``special circumstances'' as set forth in
paragraph (b) of this section.
(b) With respect to a particular work environment, ``special
circumstances'' means a situation in which:
(1) Application of the requirement leads to a conflict with another
applicable statutory, regulatory or contractual requirement; or
(2) Application of the requirement would not serve its underlying
purpose;
(3) Application of the requirement is not necessary to achieve its
underlying purpose and results in resource impacts that are not
justified by the safety improvements; or
(4) Application of the requirement would result in a situation
significantly different than that contemplated when the requirement was
adopted, or significantly different than that encountered by others
similarly situated; or
(5) The exemption would result in benefit to worker safety and
health that compensates for any detriment that may result from the
grant of the exemption; or
(6) Circumstances exist that would justify temporary relief from
application of the requirement while taking good faith action to
achieve compliance; or
(7) There is present any other material circumstance not considered
when the requirement was adopted for which it would be in the public
interest to grant an exemption; or
(8) An exemption would contribute to tailoring the requirements of
this part to reflect the hazards and facilities associated with a
particular work environment; or
(9) The facility is to be permanently closed and demolished, or
title is expected to be transferred to another entity for reuse; or
(10) An exemption would contribute substantially to achieving a
national security mission of the Department of Energy in an efficient
and timely manner.
Sec. 851.302 Terms and conditions.
An exemption may contain terms and conditions including provisions
that:
[[Page 3829]]
(a) Limit its duration;
(b) Require alternative action;
(c) Require partial compliance; or
(d) Establish a schedule for full or partial compliance.
Subpart E--Enforcement Process
Sec. 851.400 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) Contractors must fully cooperate with the Director during all
phases of the enforcement process and provide complete and accurate
records and documentation as requested by the Director during
investigation or inspection activities. Contractors who attempt to
falsify records or documentation or otherwise mislead the Director
during the enforcement process will be subject to full and unmitigated
enforcement of this part, and such cases may be referred to the
Department of Justice by the Director for potential criminal
investigation.
(c) 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.
(d) 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. However, no prior notice of an inspection need be
provided to a contractor.
(e) 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.
(f) 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.
(g) 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.
(h) 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.
(i) 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.
(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 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. 851.401 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 is not required to admit in a consent order that a
requirement of this part has been violated.
(3) DOE is not required 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. 851.402 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 requirement 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. 851.403 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
[[Page 3830]]
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. 851.45:
(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. 851.404 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. 851.405 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.--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 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 (``AAEA'') 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, or
otherwise 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 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 it makes 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: (1) Conduct enforcement
inspections, investigations, and conferences; (2) issue Notices of
Violations and proposed civil penalties, Enforcement Letters,
Consent Orders, and subpoenas; and (3) issue 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
[[Page 3831]]
following actions that direct NNSA contractors: (1) Subpoenas; (2)
Orders to compel attendance; (3) Disclosure of information or
documents obtained during an investigation or inspection; (4)
Preliminary Notices of Violations; and (5) 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 E, 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: (1) Admitting the violation and waiving its right to
contest the proposed civil penalty and paying it; (2) admitting the
violation but asserting the existence of mitigating circumstances
that warrant either the total or partial remission of the civil
penalty; or (3) 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: (1) that no violation has occurred; (2) that the
violation occurred as alleged in the PNOV but that the proposed
civil penalty should be remitted in whole or in part, or; (3) 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 851.45. 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 two
levels of severity to identify their relative seriousness. Notices
of Violation issued for noncompliance 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:
(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).
(c) De minimis violations, defined as a deviation from the
requirement of a standard that has no direct or immediate
relationship to safety or health, 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.
(g) The Director may consider the extent to which facility-
related and legacy hazards have been mitigated through the use of
administrative controls and/or personal protective equipment in
determining whether a citation will be issued.
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 final
enforcement action. The enforcement conference may be conducted
onsite at the conclusion of a field investigation/inspection. 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: (1) Assure
the accuracy of the facts upon which the preliminary determination
to consider enforcement action is based; (2) discuss the potential
or alleged violations, their significance and causes, and the nature
of and schedule for the DOE contractor's corrective actions; (3)
determine whether there are any aggravating or mitigating
circumstances; and (4) obtain other information which will help
determine whether enforcement action is appropriate and, if so, the
extent of that 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
[[Page 3832]]
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,
address additional areas requiring the contractor's attention, and
address DOE's expectations for corrective action.
(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.
(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 its review
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 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 have
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, or 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 up to $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) The Director will coordinate all violations with 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: (1) Is
especially egregious; (2) indicates a general failure to perform
under the contract with respect to worker safety and health; or (3)
where the responsible DOE line management believes a violation
requires swift enforcement and corrective action. The responsible
DOE line management 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. A notice of violation may still be issued should the
election of a contract fee reduction be made. In such cases, the
notice of violation will not include a civil penalty. The notice of
violation will indicate that no civil penalty is being imposed
because DOE has elected a contract fee reduction as the remedy.
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.
[[Page 3833]]
(c) DOE will impose different base level penalties considering
the severity level of the violation by Price-Anderson indemnified
contractors. Table A-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) Enforcement personnel will utilize risk-based criteria to
assist the Director in determining appropriate civil penalties for
violations found during investigations and inspections.
(e) 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.
(f) 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 A-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 A-1.--Severity Level Base Civil Penalties
------------------------------------------------------------------------
Base civil
penalty amount
(Percentage
Severity level of maximum per
violation per
day)
------------------------------------------------------------------------
I...................................................... 100
II..................................................... 50
------------------------------------------------------------------------
3. Adjustment Factors
(a) DOE's enforcement program is not an end in itself, but a
means to achieve compliance with the worker safety and health
requirements in this part, and civil penalties are intended 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 up to 50% of the base civil penalty shown in Table
A-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 are expected, however, to 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.
[[Page 3834]]
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. 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. 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. 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 constitute the type of proactive behavior necessary to prevent
significant events from occurring and thereby to the improvement in
worker safety and health.
(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 performance
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 A-1. For example,
very extensive corrective action may result in DOE's reducing the
proposed civil penalty up to 50% from the base value shown in Table
A-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 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 851.5, 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 851.7, 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;
[[Page 3835]]
(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 NNSA contractors, believes warrants the
Secretary's involvement; or
(b) Any proposed enforcement action for which the Secretary asks
to be consulted.
[FR Doc. 05-1203 Filed 1-25-05; 8:45 am]
BILLING CODE 6450-01-P