Chronic Beryllium Disease Prevention Program; Worker Safety and Health Program, 6858-6948 [06-964]

Agencies

• DEPARTMENT OF ENERGY

[Federal Register Volume 71, Number 27 (Thursday, February 9, 2006)]
[Rules and Regulations]
[Pages 6858-6948]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-964]



[[Page 6857]]

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Part II





Department of Energy





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10 CFR Parts 850 and 851



Chronic Beryllium Disease Prevention Program; Worker Safety and Health 
Program; Final Rule

Federal Register / Vol. 71, No. 27 / Thursday, February 9, 2006 / 
Rules and Regulations

[[Page 6858]]


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DEPARTMENT OF ENERGY

10 CFR Parts 850 and 851

[Docket No. EH-RM-04-WSHP]
RIN 1901-AA99


Chronic Beryllium Disease Prevention Program; Worker Safety and 
Health Program

AGENCY: Department of Energy

ACTION: Final rule.

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SUMMARY: The Department of Energy (DOE) is today publishing a final 
rule to implement the statutory mandate of section 3173 of the Bob 
Stump National Defense Authorization Act (NDAA) for Fiscal Year 2003 to 
establish worker safety and health regulations to govern contractor 
activities at DOE sites. This program codifies and enhances the worker 
protection program in operation when the NDAA was enacted.

EFFECTIVE DATE: This rule is effective February 9, 2007. The 
incorporation by reference of certain publications listed in this rule 
is approved by the Director of the Federal Register as of February 9, 
2007.

FOR FURTHER INFORMATION CONTACT: Jacqueline D. Rogers, U.S. Department 
of Energy, Office of Environment, Safety and Health, EH-52, 1000 
Independence Avenue, SW., Washington, DC 20585, 202-586-4714.

SUPPLEMENTARY INFORMATION:
I. Introduction
II. Legal Authority and Relationship to Other Regulatory Programs
    A. Legal Authority
    B. Relationship to Other Regulatory Programs
III. Overview of the Final Rule
IV. Section-by-Section Discussion of Comments and Rule Provisions
    A. Subpart A--General Provisions
    B. Subpart B--Program Requirements
    C. Subpart C--Specific Program Requirements
    D. Subpart D--Variances
    E. Subpart E--Enforcement Process
    F. Appendix A--Worker Safety and Health Functional Areas
    G. Appendix B--General Statement of Enforcement Policy
V. Procedural Review Requirements
    A. Review Under Executive Order 12866
    B. Review Under Executive Order 12988
    C. Review Under Executive Order 13132
    D. Review Under Executive Order 13175
    E. Review Under the Regulatory Flexibility Act
    F. Review Under the Paperwork Reduction Act
    G. Review Under the National Environmental Policy Act
    H. Review Under the Unfunded Mandates Reform Act
    I. Review Under Executive Order 13211
    J. Review Under the Treasury and General Government 
Appropriations Act, 1999
    K. Review Under the Treasury and General Government 
Appropriations Act, 2001
    L. Congressional Notification
VI. Approval of the Office of the Secretary

Introduction

    This final rule implements a worker safety and health program for 
the Department of Energy (DOE or the Department). This program 
establishes the framework for a worker protection program that will 
reduce or prevent occupational injuries, illnesses, and accidental 
losses by requiring DOE contractors to provide their employees' with 
safe and healthful workplaces. Also, the program establishes procedures 
for investigating whether a requirement has been violated, for 
determining the nature and extent of such violation, and for imposing 
an appropriate remedy.
    In December 2002, Congress directed DOE to promulgate regulations 
on worker safety and health regulations to cover contractors with 
Price-Anderson indemnification agreements in their contracts. 
Specifically, section 3173 of the National Defense Authorization Act 
(NDAA) amended the Atomic Energy Act (AEA) to add section 234C 
(codified as 42 U.S.C. 2282c), which requires DOE to promulgate worker 
safety and health regulations that maintain ``the level of protection 
currently provided to * * * workers.'' See Public Law 107-314 (December 
2, 2002). These regulations are to include flexibility to tailor 
implementation to reflect activities and hazards associated with a 
particular work environment; to take into account special circumstances 
for facilities permanently closed or demolished, or which title is 
expected to be transferred; and to achieve national security missions 
in an efficient and timely manner (42 U.S.C. 2282c(3)). Section 234C 
also makes a DOE contractor with such an indemnification agreement that 
violates these regulations subject to civil penalties similar to the 
authority Congress granted to DOE in 1988 with respect to civil 
penalties for violations of nuclear safety regulations. Section 234C 
also directs DOE to insert in such contracts a clause providing for 
reducing contractor fees and other payments if the contractor or a 
contractor employee violates any regulation promulgated under section 
234C, while specifying that both sanctions may not be used for the same 
violation.
    On December 8, 2003, DOE published a notice of proposed rulemaking 
(NOPR) to implement section 3173 of the NDAA (68 FR 68276). The 
December proposal was intended to codify existing DOE practices in 
order to ensure the worker safety and health regulations would give DOE 
workers a level of protection equivalent to that afforded them when 
section 3173 was enacted. Specifically, under the December proposal, a 
contractor would comply with either a set of requirements based 
primarily on the provisions of DOE Order 440.1A ``Worker Protection 
Management for DOE Federal and Contractor Employees,'' March 27, 1998 
(the current DOE order on worker safety and health) or a tailored set 
of requirements approved by DOE. The contractor would implement these 
requirements pursuant to a worker safety and health program approved by 
DOE.
    On January 8, 2004, DOE held a televideo conference to allow DOE 
employees, DOE contractors, contractor employees, and employee 
representatives to become familiar with the proposal. DOE held public 
hearings on the proposal in Washington, DC, on January 21, 2004, and in 
Golden, Colorado, via televideo on February 4, 2004. In addition to the 
oral comments at the public hearings, DOE received approximately 50 
written comments on the December proposal.
    After becoming aware that the Defense Nuclear Facilities Safety 
Board (DNFSB), which has safety oversight responsibility with regard to 
DOE nuclear facilities, had concerns about the proposed rule, DOE 
suspended the rulemaking by publishing a notice in the Federal Register 
on February 27, 2004 (69 FR 9277). DOE stated in that notice that DOE 
would consult with the DNFSB in order to resolve its concerns, and also 
that it would consider views received from other stakeholders on its 
proposal.
    As a result of its consultation with the DNFSB and consideration of 
other comments, DOE published a supplemental notice of proposed 
rulemaking (SNOPR) in the Federal Register (70 FR 3812) on January 26, 
2005. The SNOPR proposed to (1) codify a minimum set of safety and 
health requirements with which contractors would have to comply; (2) 
establish a formal exemption process which would require approval by 
the Secretarial Officer with line management responsibility and which 
would provide significant involvement of the Assistant Secretary for 
Environment, Safety and Health; (3) delineate the role of the worker 
health and safety program and its relationship to integrated safety 
management; (4) set forth the general duties of contractors responsible 
for DOE workplaces; and (5) limit the scope of the regulations to 
contractor activities and DOE sites.

[[Page 6859]]

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

II. Legal Authority and Relationship to Other Regulatory Programs

A. Legal Authority

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

B. Relationship to Other Regulatory Programs

    DOE (like its predecessors, AEC and ERDA) has implemented this 
authority in a comprehensive manner by incorporating appropriate 
provisions on worker safety and health into the contracts under which 
work is performed at DOE workplaces. During the past decade, DOE has 
taken steps to ensure that contractual provisions on worker safety and 
health are tailored to reflect particular workplace environments. In 
particular, the ``Integration of Environment, Health and Safety into 
Work Planning and Execution'' clause set forth in the DOE procurement 
regulations requires DOE contractors to establish an integrated safety 
management system (ISMS). See 48 Code of Federal Regulations (CFR) 
952.223-71 and 970.5223-1. As part of this process, a contractor must 
define the work to be performed, analyze the potential hazards 
associated with the work, and identify a set of standards and controls 
that are sufficient to ensure safety and health if implemented 
properly. The identified standards and controls are incorporated as 
contractual requirements through the ``Laws, Regulations and DOE 
Directives'' clause set forth in the DOE procurement regulations. See 
48 CFR 970.0470-2 and 970.5204-2.
    Currently DOE Order 440.1A, ``Worker Protection Management for DOE 
Federal and Contractor Employees,'' establishes requirements for a 
worker safety and health program. A DOE contractor with DOE Order 
440.1A in its contract must have a worker protection program as 
stipulated by the Contractor Requirements Document (CRD) that 
accompanies the order. DOE applies these requirements through the 
incorporation of the CRD into relevant DOE contracts. In accordance 
with the CRD, contractors must implement a written worker protection 
program that integrates the performance-based requirements outlined in 
the CRD. A series of implementation guides and technical standards are 
available to assist DOE contractors in developing and implementing a 
worker protection program that will meet the intent of the performance-
based requirements.
    Also, DOE contractors are required to implement a worker safety and 
health program that is consistent with the ``Integration of 
Environment, Health and Safety into Work Planning and Execution'' 
clause set forth in the DOE procurement regulations. See 48 CFR 
952.223-71, 970.5223-1.
    Overview of DOE Order 440.1A. DOE Order 440.1A establishes a 
comprehensive worker protection program that provides the basic 
framework necessary for contractors to ensure the safety and health of 
their workforce. In short, the Order provides a well-integrated, cost-
effective, performance-based program designed to ensure contractors 
recognize hazards, prevent accidents before they happen, and protect 
the lives and well-being of their employees.
    Such ``corporate'' programs have long been recognized by private 
industry as the most effective and efficient means to protect worker 
health and safety on the job. Where applied, these programs have 
consistently resulted in enhanced worker protection, decreased worker's 
compensation premiums, increased productivity and employee morale, 
declines in absenteeism and employee turnover, and decreased employer 
liability. The Occupational Safety and Health Administration (OSHA) 
recognized the effectiveness of such programs in its Safety and Health 
Program Management Guidelines (published in 1989), which were derived 
from the safety and health programs of private industry firms with the 
best safety and health performance records. DOE Order 440.1A program 
requirements are organized and consistent with the four basic program 
elements of OSHA's Guidelines on Workplace Safety and Health Management 
(i.e., (1) management commitment and employee involvement, (2) worksite 
analysis, (3) hazard prevention and control, and (4) training).
    DOE Order 440.1A specifically requires contractors to implement a 
written worker protection program that describes site-specific methods 
for complying with the requirements of the order; establish written 
policies, goals, and objectives to provide a focus for, and foster 
continual improvement of, their worker protection programs; and 
identify existing and potential workplace hazards, evaluate associated 
risks, and implement appropriate risk-based controls. In addition, the 
order establishes (1) worker rights and responsibilities that are 
consistent with those afforded to private industry employees through 
Federal regulations and (2) baseline safety and health requirements in 
specific technical disciplines.
    The order encompasses all worker protection disciplines, including 
occupational safety, industrial hygiene, fire protection (worker 
protection

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aspects only), construction safety, explosives safety, contractor 
occupational medical care, pressure safety, firearms safety, and motor 
vehicle safety. Where necessary, the order cross-references related 
elements of other orders--such as training, accident investigation, and 
safety and health reporting orders--without duplicating their 
respective requirements.
    Overview of Integrated Safety Management (ISM). A major concept of 
ISM is the integration of safety awareness and good practices into all 
aspects of work conducted at DOE. Simply stated, work should be 
conducted in such a manner that protects workers and other people, and 
does not cause harm to the environment. Safety is an integral part of 
each job, not a stand-alone program.
    ISM has seven guiding principles and five core functions. The seven 
guiding principles of ISM are:
    (1) Line management responsibility. Line management is directly 
responsible for the protection of the public, the workers, and the 
environment. As a complement to line management, the Office of 
Environment, Safety and Health (EH) provides safety policy, 
enforcement, and independent oversight functions.
    (2) Clear roles and responsibilities. Clear and unambiguous lines 
of authority and responsibility for ensuring safety must be established 
and maintained at all organized levels within the Department and its 
contractors.
    (3) Competence commensurate with the responsibility. Personnel must 
possess the experience, knowledge, skills, and abilities that are 
necessary to discharge their responsibilities.
    (4) Balanced priorities. Resources must be effectively allocated to 
address safety, programmatic, and operational considerations. 
Protecting the public, the workers, and the environment must be a 
priority whenever activities are planned and performed.
    (5) Identification of safety standards and requirements. Before 
work is performed, the associated hazards must be evaluated and an 
agreed-upon set of safety standards and requirements must be 
established which, if properly implemented, will provide adequate 
assurance that the public, the workers, and the environment are 
protected from adverse consequences.
    (6) Hazard control tailored to work being performed. Administrative 
and engineering controls to prevent and mitigate hazards must be 
tailored to the work being performed and the associated hazards.
    (7) Operations authorization. The conditions and requirements to be 
satisfied for operations to be initiated and conducted must be clearly 
established and agreed-upon.
    The five core functions of ISM are: (1) Define the scope of work; 
(2) identify and analyze hazards associated with the work; (3) develop 
and implement hazard controls; (4) perform work within controls; and 
(5) provide feedback on adequacy of controls and continue to improve 
safety management.
    Consistency with DOE Order 440.1A and Integrated System Management. 
This final rule builds on existing contract practices and processes to 
achieve safe and healthful workplaces. The rule is intended to be 
complementary to DOE Order 440.1A and ISM. Accordingly, DOE expects 
contractors to comply with the requirements of this rule in a manner 
that takes advantage of work already done as part of DOE Order 440.1A 
and ISM and to minimize duplicative or otherwise unnecessary work.
    As a general matter, DOE expects that, if contractors at a DOE site 
have fulfilled their contractual responsibilities for DOE Order 440.1A 
and ISM properly, little, if any, additional work will be necessary to 
implement the written worker safety and health program required by this 
regulation. Contractors should undertake new analyses and develop new 
documents only to the extent existing analyses and documents are not 
sufficient for purposes of this regulation. In determining the 
allowability of costs incurred by contractors to develop approved 
worker safety and health programs, the Department will consider whether 
the amount and nature of a contractor's expenditures are necessary and 
reasonable in light of the fact that the contractor has an approved ISM 
system in place.

III. Overview of the Final Rule

    This final rule codifies the Department's worker protection program 
requirements established in DOE Order 440.1A, ``Worker Protection 
Management for DOE Federal and Contractor Employees.'' Consistent with 
the intent of Congress, DOE Order 440.1A forms the basis for the rule's 
substantive requirements. The Conference Committee for the NDAA 
recognized that contractors currently operate under this order, ``which 
provides an adequate level of safety.'' (Conference Report 107-772, 
November 12, 2002, at 797.)
    The Department has structured the final rule this way for three 
main reasons: (1) To take advantage of existing and effective 
comprehensive worker protection programs that have been implemented by 
contractors at DOE sites; (2) to minimize the burden on DOE contractors 
by clarifying that contractors need not establish redundant worker 
protection programs to comply with the proposed rule; and (3) to build 
on a successful program, given that DOE Order 440.1A has been 
successfully and effectively implemented by DOE contractors for close 
to a decade. DOE believes that basing this rule on DOE Order 440.1A is 
consistent with section 234C of the NDAA which directs the Department 
to promulgate regulations which provide a level of protection that is 
``substantially equivalent to the level of protection currently 
provided to'' these workers (41 U.S.C. 2282c(a)(1)). Consistent with 
DOE Order 440.1A, this final rule establishes requirements for an 
effective worker safety and health program that will reduce or prevent 
injuries, illnesses, and accidental losses by providing DOE contractors 
and their workers with a safe and healthful workplace.
    In basing the final rule on DOE Order 440.1A, DOE intends to take 
advantage of the existing series of implementation guides developed to 
assist DOE contractors in implementing the provisions of DOE Order 
440.1A. Shortly after publication of this rule, DOE expects to publish 
updated implementation guides revised to specifically address the 
provisions of the final rule. Consistent with their use under DOE Order 
440.1A, these updated guides will provide supplemental information and 
describe acceptable methods for implementing the performance-based 
requirements of the rule. DOE contractors are free to use the guidance 
provided in these non-mandatory documents or to develop and implement 
their own unique methods for compliance, provided that these methods 
afford workers a level of protection equal to or greater than that 
which would satisfy the rule's requirements. DOE believes that the 
availability of these updated guides will also further assist in 
ensuring a seamless transition from coverage under DOE Order 440.1A to 
regulation under 10 CFR part 851.
    To ensure appropriate enforcement of the worker safety and health 
program the rule also establishes requirements and procedures for 
investigating the nature and extent of a violation, determining whether 
a violation has occurred, and imposing an appropriate remedy.
    The Department has made changes in this final rule after 
considering the

[[Page 6861]]

concerns of the commenters with the supplemental notice of proposed 
rulemaking published in the Federal Register on January 26, 2005 (70 FR 
3812). The principal changes are as follows:
    (1) The final rule codifies key worker safety and health standards 
from DOE Order 440.1A with which contractors must comply.
    (2) The final rule establishes a formal variance process that 
requires approval by the Under Secretary with line management 
responsibility for the contractor that is requesting the variance, 
after considering the recommendations of the Assistant Secretary for 
Environment Safety and Health. The rule adds detailed procedures in 
(Subpart D) whereby a contractor can obtain a variance from a specific 
worker safety and health standard or a portion of the standard. These 
procedures will ensure that variances are only granted where warranted 
and where an equivalent level of protection is provided through other 
means.
    (3) The final rule establishes updates to functional areas. These 
updates are intended to ensure the function areas more closely reflect 
the requirements of DOE Order 440.1A.
    (4) The final rule recognizes the value of a central technical 
authority and the importance of senior DOE management involvement. The 
Assistant Secretary for Environment, Safety and Health has played a 
central role in the development of the final rule and will continue to 
play a central role in its implementation and enforcement. In addition 
to providing technical guidance and assistance, the Assistant Secretary 
is responsible for recommending to the Under Secretary whether to grant 
or deny a variance. The Office of Price-Anderson Enforcement, which 
reports to the Assistant Secretary, is responsible for investigating 
potential violations and deciding whether to take certain enforcement 
actions against the contractor, including the imposition of civil 
penalties for all facilities. The final rule makes the Under Secretary 
with line management responsibility for a contractor responsible for 
deciding whether to grant a variance to the contractor.
    The provisions of the rule are presented in five main subparts. 
Subpart A describes the scope, purpose, and applicability of the rule, 
defines terms that are critical to the rule's application and 
implementation, and establishes contractor responsibilities for 
executing the rule. Subpart B establishes program requirements to 
develop and maintain a worker safety and health program and to perform 
safety and health activities in accordance with the approved program. 
Subpart C establishes provisions that focus on management 
responsibilities and worker rights, protecting the worker from the 
effects of safety and health hazards by requiring hazard identification 
and assessment, hazard prevention and abatement, specific regulatory 
requirements, functional areas provisions, recordkeeping and program 
evaluations. Subpart D establishes the criteria and procedures for 
requesting a variance. Subpart E establishes the enforcement process.
    To ensure that the Department captured the entire list of 
contractor requirements specified in DOE Order 440.1A, the Department 
developed a ``crosswalk'' of the requirements in the current DOE order 
and the final provisions of 10 CFR part 851. See Table 1.

  Table 1.--Crosswalk of DOE Order 4401.1A Requirements and 10 CFR 851
                         Final Rule Requirements
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                                             Corresponding 10 CFR 851
     DOE order 440.1A requirements                  provisions
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1. Objective...........................  .1 Purpose
3.b. Applicability.....................  .1 Scope
 
3.c. Exclusions........................  .2 Exclusions
----------------------------------------
             Attachment 2--Contractor Requirements Document
------------------------------------------------------------------------
 The contractor shall comply with the    .24 Functional areas.
 requirements below; however, the
 requirements for the specific
 functional areas that are addressed in
 paragraphs 14 through 22 apply only if
 the contractor is involved in these
 activities.
1. Implement a written worker            .11(a), .12 Preparation and
 protection program that:.                submission of worker safety
                                          and health program
                                          Implementation.
1.a. Provide a place of employment free  .10(a)(1) General requirements.
 from recognized hazards that are
 causing or are likely to cause death
 or serious physical harm to employees;
 and.
1.b. Integrates all requirements         .11(a)(3) (ii) Preparation and
 contained in this attachment and other   submission of worker safety
 related site-specific worker             and health program.
 protection activities.
2. Establish written policy, goals, and  .20(a)(1) Management
 objectives for the worker protection     responsibilities.
 program.
3. Use qualified worker protection       .20(a)(2) Management
 staff to direct and manage the worker    responsibilities.
 protection program.
4. Assign worker protection              .20(a)(3) Management
 responsibilities, evaluate personnel     responsibilities.
 performance, and hold personnel
 accountable for worker protection
 performance.
5. Encourage employee involvement in     .20(a)(4) Management
 the development of program goals,        responsibilities.
 objective, and performance measures
 and in the identification and control
 of hazards in the workplace.
6. Provide workers the right, without    .20(a)(6) Management
 reprisal, to:.                           responsibilities.
6.a. Accompany DOE worker protection     .20(b)(5) Worker rights.
 personnel during workplace
 inspections;.
6.b. Participate in activities provided  .20(b)(1) Worker rights.
 for herein on official time;.
6.c. Express concerns related to worker  .20(b)(7) Worker rights.
 protection;.

[[Page 6862]]

 
6.d. Decline to perform an assigned      .20(b)(8) Worker rights.
 task because of a reasonable belief
 that, under the circumstances, the
 task poses an imminent risk of death
 or serious bodily harm to that
 individual, coupled with a reasonable
 belief that there is insufficient time
 to seek effective redress through the
 normal hazard reporting and abatement
 procedures established in accordance
 with the requirements herein;.
6e. Have access to DOE worker            .20(b)(2) (i)-(ii) Worker
 protection publications, DOE-            rights.
 prescribed standards, and the
 organization's own protection
 standards or procedures applicable to
 the workplace;.
6.f. Observe monitoring or measuring of  .20(b)(4) Worker rights.
 hazardous agents and have access to
 the results of exposure monitoring;.
6.g. Be notified when monitoring         .20(b)(3) Worker rights
 results indicate they were overexposed
 to hazardous materials; and.
6.h. Receive results of inspections and  .20(b)(6) Worker rights
 accident investigations upon request.
7. Implement procedures to allow         .20(a)(9) Management
 workers, through their supervisors, to   responsibilities.
 stop work when they discover employee
 exposures to imminent danger
 conditions or other serious hazards.
 The procedure shall ensure that any
 stop work authority is exercised in a
 justifiable and responsible manner.
8. Inform workers of their rights and    .20(a)(10) Management
 responsibilities by appropriate means,   responsibilities.
 including posting the appropriate DOE
 Worker Protection Poster in the
 workplace where it is accessible to
 all workers.
9. Identify existing and potential       .21(a) Hazard identification
 workplace hazards and evaluate the       and assessment.
 risk of associated worker injury and
 illness.
9.a. Analyze or review: (1) Designs for  .21(a)(4)-(5) Hazard
 new facilities and modifications to      identification and assessment.
 existing facilities and equipment; (2)
 Operations and procedures; and (3)
 Equipment, product and service needs.
9.b. Assess worker exposure to           .21(a)(1)-(3) Hazard
 chemical, physical, biological, or       identification and assessment
 ergonomic hazards through appropriate    [Moved to guidance document.]
 workplace monitoring (including
 personal, area, wipe, and bulk
 sampling); biological monitoring; and
 observation. Monitoring results shall
 be recorded [Documentation shall
 describe the tasks and locations where
 monitoring occurred, identify workers
 monitored or represented by the
 monitoring, and identify the sampling
 methods and durations, control
 measures in place during monitoring
 (including the use of personal
 protective equipment), and any other
 factors that may have affected
 sampling results.].
9.c. Evaluate workplaces and activities  .21(a)(5) Hazard identification
 (accomplished routinely by workers,      and assessment.
 supervisors, and managers and
 periodically by qualified worker
 protection professionals).
9.d. Report and investigate accidents,   .26(d) Recordkeeping and
 injuries and illnesses and analyze       reporting.
 related data for trends and lessons
 learned (reference DOE Order 210.1).
10. Implement a hazard control           .22(a) Hazard prevention and
 prevention/abatement process to ensure   abatement.
 that all identified hazards are
 managed through final abatement or
 control.
10.a. For hazards identified either in   .22(a)(1) Hazard prevention and
 the facility design or during the        abatement.
 development of procedures, control
 shall be incorporated in the
 appropriate facility design or
 procedure.
10.b. For existing hazards identified    .22(a)(2) (i), (ii), & (iii)
 in the workplace, abatement actions      Hazard prevention and
 prioritized according to risk to the     abatement.
 worker shall be promptly implemented,
 interim protective measures shall be
 implemented pending final abatement,
 and workers shall be protected
 immediately from imminent danger
 conditions.
10.c. Hazards shall be addressed when    .22(c) Hazard prevention and
 selecting or purchasing equipment,       abatement.
 products, and services.
10.d. Hazard control methods shall be    .22(b)(2)-(4) Hazard prevention
 selected based on the following          and abatement.
 hierarchy: (1) Engineering control (2)
 Work practices and administrative
 controls that limit worker exposure
 (3) Personal protective equipment.
11. Provide workers, supervisors,        .25 Information and training.
 managers, visitors, and worker
 protection professionals with worker
 protection training.
12. Comply with the following worker     .23(a) Safety and health
 protection requirements:.                standards.
12.a. Title 29 Code of Federal           .23(a)(3) Safety and health
 Regulations (CFR), Part 1910,            standards.
 ``Occupational Safety and Health
 Standards''.
12.b. Title 29 CFR, Part 1915,           .23(a)(4) Safety and health
 ``Shipyard Employment''.                 standards.
12.c. Title 29 CFR, Part 1917, ``Marine  .23(a)(5) Safety and health
 Terminals''.                             standards.
12.d. Title 29 CFR, Part 1918, ``Safety  .23(a)(6) Safety and health
 and Health Regulations for               standards.
 Longshoring''.

[[Page 6863]]

 
12.e. Title 29 CFR, Part 1926, ``Safety  .23(a)(7) Safety and health
 and Health Regulations for               standards.
 Construction''.
12.f. Title 29 CFR, Part 1928,           .23(a)(8) Safety and health
 ``Occupational Safety and Health         standards.
 Standards for Agriculture''.
12.g. American Conference of             .23(a)(9) Safety and health
 Governmental Industrial Hygienists       standards.
 (ACGIH), ``Threshold Limit Values for
 Chemical Substances and Physical
 Agents and Biological Exposure
 Indices'' when the ACGIH Threshold
 Limit Values (TLVs) are lower (more
 protective) than permissible exposure
 limits in 29 CFR 1910. When the ACGIH
 TLVs are used as exposure limits,
 contractors must nonetheless comply
 with the other provisions of any
 applicable expanded health standard
 found in 29 CFR 1910.
12.h. American National Standards        .23(a)(11) Safety and health
 Institute (ANSI) Z136.1, ``Safe Use of   standards.
 Lasers''.
12.i. ANSI Z88.2, ``American National    .23(a)(10) Safety and health
 Standard Practices for Respiratory       standards.
 Protection''.
12.j. ANSI Z49.1, ``Safety in Welding,   .23(a)(12) Safety and health
 Cutting and Allied Processes,''          standards.
 sections 4.3 and E4.3 (of the 1994
 edition or equivalent sections of
 subsequent editions).
12.k. National Fire Protection           .23(a)(14) Safety and health
 Association (NFPA) 70, ``National        standards.
 Electrical Codes''.
12.l. NFPA 70E, ``Electrical Safety in   .23(a)(15) Safety and health
 the Workplace''.                         standards.
13. Ensure that subcontractors
 performing work on DOE-owned or -
 leased facilities comply with this
 Contractor Requirements Document and
 the contractor's own site worker
 protection standards (where
 applicable).
14. Construction Safety................  Appendix A section 1.
15. Fire Protection....................  Appendix A section 2.
16. Firearms Safety....................  Appendix A section 5.
17. Explosives Safety..................  Appendix A section 3.
18. Industrial Hygiene.................  Appendix A section 6.
19. Occupational Medicine..............  Appendix A section 8.
20. Pressure Safety....................  Appendix A section 4.
21. Motor Vehicle Safety...............  Appendix A section 9.
22. Suspect and Counterfeit Item (S/CI)  Section moved to DOE Order
 Controls.                                414.1C, Quality Assurance
                                          (June 17, 2005).
------------------------------------------------------------------------

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

     Table 2.--Comparison of Final 10 CFR 851 Rule Sections With the
           Supplemental Notice of Proposed Rulemaking (SNOPR)
------------------------------------------------------------------------
                                            Corresponding supplemental
           Final rule section                    proposal section
------------------------------------------------------------------------
         PART 850--Chronic Beryllium Disease Prevention Program
------------------------------------------------------------------------
Authority..............................  Notice of Proposed Rulemaking
                                          December 8, 2003, N/A.
850.1 Scope............................  Notice of Proposed Rulemaking
                                          December 8, 2003, N/A.
850.4 Enforcement......................  Notice of Proposed Rulemaking
                                          December 8, 2003, N/A.
----------------------------------------
               PART 851--Worker Safety and Health Program
------------------------------------------------------------------------
     Subpart A--General Provisions        Subpart A--General Provisions
----------------------------------------
 
851.1 Scope and purpose................  851.1 Scope and exclusions.
                                         851.2 Purpose.
851.2 Exclusions.......................  851.1 Scope and exclusions.
851.3 Definitions......................  851.3 Definitions.
851.4 Compliance Order.................  851.5 Compliance Order.
851.5 Enforcement......................  851.9 Enforcement.
851.6 Petitions for generally            851.6 Interpretations.
 applicable rulemaking.
851.7 Requests for a binding             851.6 Interpretations.
 interpretive ruling.
851.8 Informal requests for information  851.6 Interpretations.
----------------------------------------

[[Page 6864]]

 
    Subpart B--Program Requirements       Subpart A--General Provisions
                                           Subpart B--Worker Safety and
                                                  Health Program
----------------------------------------
 
851.10 General requirements............  851.4 General rule.
                                         851.100 Worker safety and
                                          health program.
851.11 Development and approval of the   851.101 Approval and
 worker safety and health program.        maintenance of the worker
                                          safety and health program.
851.12 Implementation..................  851.100 Worker safety and
                                          health program.
851.13 Compliance......................  851.8 Compliance.
----------------------------------------
      Subpart C--Specific Program         Subpart A--General Provisions
              Requirements
                                           Subpart B--Worker Safety and
                                                  Health Program
                                           Subpart C--Safety and Health
                                                   Requirements
----------------------------------------
 
851.20 Management responsibilities and   851.10 Worker rights.
 worker rights and responsibilities.
851.21 Hazard identification and         851.100 Worker safety and
 assessment.                              health program.
851.22 Hazard prevention and abatement.  851.100 Worker safety and
                                          health program.
851.23 Workplace safety and health       851.200 Worker safety and
 standards.                               health requirements.
                                         851.201 Worker safety and
                                          health standards.
851.24 Functional areas................  851.200 Worker safety and
                                          health requirements.
851.25 Training and information........  851.100 Worker safety and
                                          health program.
851.26 Recordkeeping and reporting.....  851.7 Information and records.
851.27 Incorporation by reference......
----------------------------------------
          Subpart D--Variances             Subpart D--Exemption Relief
----------------------------------------
 
851.30 Consideration of variances......  851.300 Exemptions.
851.31 Variance process................  851.301 Exemption criteria.
851.32 Action on variance request......  851.300 Exemptions.
851.33 Terms and conditions............  851.302 Terms and conditions.
851.34 Requests for conferences........
----------------------------------------
     Subpart E--Enforcement Process       Subpart E--Enforcement Process
----------------------------------------
 
851.40 Investigations and inspections..  851.400 Investigations and
                                          inspections.
851.41 Settlement......................
851.42 Preliminary notice of violation.  851.402 Preliminary notice of
                                          violation.
851.43 Final notice of violation.......  851.403 Final notice of
                                          violation.
851.44 Administrative appeal...........  851.404 Administrative appeal.
851.45 Direction to NNSA contractors...  851.405 Direction to NNSA
                                          contractors.
----------------------------------------
APPENDIX A TO PART 851--WORKER SAFETY      Subpart C--Safety and Health
 AND HEALTH FUNCTIONAL AREAS.                      Requirements
                                         (Sections 851.202 to 851.210)
----------------------------------------
 
A.1 Construction safety................  851.202 Construction safety.
A.2 Fire protection....................  851.203 Fire protection.
A.3 Explosives safety..................  851.204 Explosives safety.
A.4 Pressure safety....................  851.205 Pressure retaining
                                          component safety.
A.5 Firearms safety....................  851.208 Firearms safety.
A.6 Industrial hygiene.................  851.209 Industrial hygiene.
A.7 Biological safety..................  851.207 Biological safety.
A.8 Occupational medicine..............  851.210 Occupational medicine.
A.9 Motor vehicle safety...............  851.206 Motor vehicle safety.
A.10 Electrical safety.................
A.11 Nanotechnology--Reserved..........
A.12 Workplace Violence Prevention--
 Reserved.
----------------------------------------
    APPENDIX B TO PART 851--GENERAL      APPENDIX A TO PART 851--GENERAL
    STATEMENT OF ENFORCEMENT POLICY          STATEMENT OF ENFORCEMENT
                                                      POLICY
------------------------------------------------------------------------

IV. Section-by-Section Discussion of Comments and Rule Provisions

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

[[Page 6865]]

    DOE has determined that the requirements set forth in this rule are 
those which are necessary to provide a safe and healthful workplace for 
DOE contractors and their workers.
    The majority of the comments received during the public comment 
period addressed specific provisions or subparts (e.g., scope and 
exclusions, enforcement process, program requirements, exemption 
process, and consensus standards) of the supplemental proposed rule. 
Each of these comments is discussed in detail below in the discussion 
of the corresponding section of the rule.
    Several commenters, however, expressed more general concerns 
regarding the entire proposed rule. For instance, a few commenters 
(Exs. 20, 27, 48) expressed concern regarding a perceived lack of 
detail in the proposed rule. One of these commenter (Ex. 20) felt that 
terms such as ``reasonable,'' ``any,'' ``all,'' ``significant,'' 
``adequate,'' ``near miss,'' ``potential,'' ``comprehensive,'' and 
``general'' used throughout the rule were too subjective to ensure 
consistency in contractor programs and enforcement. Another commenter 
(Exs. 48) believed that the proposed rule was not sufficiently 
developed and many processes and required guidance materials have 
either not yet been developed or have not been adequately described. 
This commenter also felt that the proposed regulation as currently 
written would represent a shift in safety emphasis from the positive 
influence, as described by the Integrated Safety Management System 
(ISMS), to a negative, enforcement-based culture. The commenter 
recommended that DOE consult with safety and health professionals 
within DOE, in other government agencies such as OSHA, and in private 
industry when preparing the final rule. The third commenter (Ex. 27) 
argued that the ``level of protection'' required under section 3173 of 
the NDAA must be defined in the rule to allow contractor compliance.
    DOE has carefully reviewed the rule in light of these comments and 
other more specific comments received during the public comment period 
and has attempted to address those requesting clarification or further 
detail through either revisions to the text of the final rule or 
through clarification in this preamble discussion. DOE also intends to 
publish appropriate guidance materials to further assist contractors 
with implementation. DOE notes that this final rule is the result of 
extensive coordination within the DOE safety and health community and 
the careful consideration of all comments received during the pubic 
comment period including those comments received from health and safety 
professionals from other organizations.
    Two commenters (Ex. 44, 60) urged DOE to begin the process of 
staffing, training, and setting forth resource requirements in order to 
implement this rule in a timely manner. DOE notes, however, that the 
rule is based largely on the provisions of DOE Order 440.1A. As a 
result, existing staff within DOE will be capable of performing 
Departmental actions necessary to implement the rule.
    One commenter (Ex. 37) asserted that the health and safety 
framework established under the rule is unlike the health and safety 
provisions applicable to all other facilities in the country that are 
subject to OSHA jurisdiction. This commenter felt that such a 
discrepancy would discourage talented health and safety professionals 
from working at DOE facilities because of the prospect of learning a 
regulatory scheme that does not apply elsewhere. The commenter argued 
that ``the best and the brightest'' health and safety professionals 
would be hoping to acquire transferable skills. DOE disagrees with this 
commenter. The provisions of the final rule stem directly from DOE 
Order 440.1A which was modeled after OSHA's Safety and Health Program 
Management Guidelines. OSHA derived these guidelines from the safety 
and health program of private industry firms with the best safety and 
health performance records. OSHA encourages all employers to implement 
these guidelines and recognizes the accomplishments of the best 
performers in safety and health through its Voluntary Protection 
Program (VPP). As a result, DOE believes that the safety and health 
program required under this rule will continue to promote safety and 
health excellence among DOE contractors and will in fact attract ``well 
qualified'' safety and health professionals.
    One commenter (Ex. 6) expressed concern that the proposed rule did 
not respond to past Inspector General (IG) and Government 
Accountability Office (GAO) reports recommending that DOE National 
Laboratories transition to external OSHA regulation. The commenter 
recommended that DOE compare the proposed rule with previous external 
IG and GAO reports regarding regulation of DOE National Laboratories. 
This same commenter also asserted that there is a need for a 
centralized enforcement (compliance) agency, and suggested that DOE 
follow the Great Britain model and combine the Environmental Protection 
Agency (EPA), OSHA, DOE, Nuclear Regulatory Commission (NRC), Defense 
Nuclear Facilities Safety Board (DNFSB), Price-Anderson Amendment Act 
(PAAA), DOE's Office of Independent Oversight and Performance 
Assurance, etc., compliance groups to form an ``Agency of Oversight and 
Compliance'' to provide coordinated, synergistic, and comprehensive 
oversight. Both suggestions, however, go beyond the statutory mandate 
of section 3173 of the NDAA and the scope of this rulemaking effort. 
Moreover, the Department lacks the authority and jurisdiction to 
implement these suggestions.

A. Subpart A--General Provisions

Section 851.1--Scope and Purpose
    The worker safety and health program required by this rule 
establishes the framework for a comprehensive program that will reduce 
or prevent injuries, illnesses, and accidental losses by providing DOE 
contractors and their workers with a safe and healthful workplace. DOE 
has structured the rule this way for two main reasons: (1) To take 
advantage of existing and effective comprehensive worker protection 
programs that have been implemented at DOE facilities and (2) to 
minimize the burden on contractors by clarifying that they need not 
establish redundant worker protection programs to protect workers from 
occupational safety and health hazards.
    Section 851.1(a) establishes the scope of this regulation. The 
worker safety and health requirements in this part govern the conduct 
of activities by DOE contractors at DOE sites. As clarified in the 
definition of ``contractor'' (section 851.3), DOE's intent is that the 
contractors covered under this rule include any entity under contract 
to perform activities at a DOE site in furtherance of a DOE mission, 
including subcontractors at any tier.
    One commenter (Ex. 6) suggested the rule should apply only to 
defense nuclear facilities. DOE notes that the legislation, section 
3173 of the NDAA is not limited to defense nuclear facilities.
    A few commenters (Exs. 28, 45, 51) observed that section 3173 of 
the NDAA only applies to contractors covered by agreements of 
indemnification under section 170d. of the AEA. The commenters 
suggested that part 851 should not exceed this statutory mandate and 
should only apply to such contractors. Presumably since ``contractual 
enforcement under proposed rule section 851.4(b) would only be 
available against prime contractors and not subcontractors,'' these 
commenters argued that, ``the rule

[[Page 6866]]

should only apply to contractors covered by agreement of 
indemnification,'' amending the Nuclear Hazards Indemnity Agreement 
(NHIA) in order to put contractors on notice of civil and contract 
penalties for violation of DOE worker safety and health rules. Although 
DOE recognizes that section 234C of the AEA only mandates contractors 
covered by agreements of indemnification, DOE has decided to cover all 
of its contractors to ensure consistency in the protection of workers 
throughout the DOE complex. As described in Section II of this 
Supplementary Information, DOE has broad authority to regulate worker 
safety and health with respect to nuclear and nonnuclear functions, and 
it is not limited to the authority in section 234C. While the 
regulations cover all contractors, the authority to impose civil 
penalties is limited to those covered by agreements of indemnity.
    Several commenters (Exs. 39, 49, 61) questioned who would be held 
responsible for worker safety and health on DOE-leased sites in those 
areas outside the control of the contractor but where the contractor 
may perform work. One commenter (Ex. 49) suggested that under the rule, 
facility worker safety and health requirements should not apply to 
leased facilities to the extent they are regulated under State or local 
regulations. However, the commenter argued, the rule's program 
requirements should continue to apply to DOE contractors at these 
leased facilities. DOE intends for all contractors on a work site to 
establish and maintain a worker safety and health program for the 
workplaces for which each contractor is responsible as required in 
final rule section 851.11(a)(2)(ii). In addition, contractors on a site 
must coordinate with other contractors responsible for work at the 
covered workplaces to ensure that there are clear roles, 
responsibilities and procedures that will ensure the safety and health 
of workers on multi-contractor workplaces. DOE further intends to 
develop Enforcement Guidance Supplements based in part on OSHA's multi-
employer worksite policies to guide enforcement efforts on multi-
employer worksites. DOE notes that final rule section 851.1(a) 
clarifies that the rule applies to the conduct of contractor activities 
at DOE sites, and section 851.3 clarifies that DOE sites include not 
only locations leased or owned by DOE, but also locations controlled by 
DOE through the exercise of its regulatory authority.
    Two commenters (Exs. 15, 37) expressed concern over application of 
the rule to subcontractors and favored deleting ``subcontractors'' from 
the applicability or reducing the impact of the rule on subcontractors. 
Subcontractors must implement the requirements of the rule for covered 
workplaces for which they are responsible and, in other situations, act 
consistently with applicable regulations and worker safety and health 
standards.
    One commenter (Ex. 39) suggested that the rule could be interpreted 
as applying to employees of DOE tenant organizations performing work on 
a DOE site. The commenter observed that contractors cannot impose or 
enforce the worker safety and health requirements of this rule on 
tenants if they do not maintain a contractual relationship with them. 
DOE does not intend the rule to cover persons who are not performing 
work in furtherance of a DOE mission. To clarify this intent, DOE has 
revised the definitions of ``covered workplace'' and ``contractor'' to 
limit their scope to situations in which work is being performed in 
furtherance of a DOE mission. Thus the rule does not apply to a person 
restocking a vending machine. Likewise, the rule does not apply to DOE 
tenant organizations, except to the extent it had a contractual 
obligation to perform work in furtherance of a DOE mission.
    One commenter (Ex. 39) sought clarification of whether ``work done 
on public or private property off the reservation by a DOE Prime 
Contractor'' is covered under the rule. The rule applies to work 
performed at a DOE site. DOE has clarified in the definition of ``DOE 
site'' to include a location that DOE controls through exercise of its 
AEA authority, even if DOE does not own or lease the location. If DOE 
does not exercise control under the AEA, section 4(b)(2) exemption of 
the OSHA Act would not apply and OSHA would be responsible for 
regulating safety and health. DOE has also clarified the scope section 
to make clear that off-site transportation is not covered by the rule.
    One commenter (Ex. 29) sought clarification of whether the rule 
would apply to Federal employees at a covered worksite. DOE notes that 
the rule will not apply to Federal employees since Federal employees 
are covered under OSHA standards at 29 CFR 1960 (Basic Program Elements 
for Federal Employee Occupational Safety and Health Programs and 
Related Matters) as well as Executive Order 12196 (Occupational Safety 
and Health Programs for Federal Employees). Another commenter (Ex. 20) 
suggested the rule include provisions for resolving conflicts between 
Part 851 and the Federal occupational safety and health program. DOE 
sees no cause for concern, however, since both programs stem from DOE 
Order 440.1A, and there has been no need for such conflict resolution 
provisions under that order. DOE believes both programs are consistent 
with and complementary to each other.
    One commenter (Ex. 29) raised the question of whether DOE would 
consider ``exempting'' management and operating contractors from civil 
penalties for violations committed by other site contractors. DOE notes 
that the rule requires identification, evaluation and abatement of 
identified hazards, so that contractors are aware of the hazards in the 
covered workplace and respond appropriately. In addition, future 
enforcement guidance supplements will provide voluntary reporting 
thresholds. If the Office of Price-Anderson Enforcement becomes 
involved with a specific noncompliance, they will evaluate the 
circumstances surrounding the noncompliance, determine responsibility, 
and take appropriate enforcement actions in accordance with provisions 
of this rule. The process of discovery and evaluation of evidence has 
been used in the enforcement of nuclear safety requirements and is 
conducted in accordance with the rule of law. As a result, there is no 
need for exemptions from penalties as requested by the commenter.
    One commenter (Ex. 40) recommended broadening the applicability of 
the rule to include construction workers employed by subcontractors 
that come onto DOE sites for limited periods of time to perform 
maintenance, renovation, repair and demolition tasks. DOE notes that 
Appendix A section 1, ``Construction Safety'' covers construction 
contractors (including subcontractors) and their employees in 
situations suggested by exhibit 40.
    Section 851.1(b) establishes the purpose of the rule, which is to 
delineate the requirements and procedures associated with the worker 
safety and health program. Section 851.1(b)(1) clarifies that the rule 
establishes the requirements for an effective worker safety and health 
program, which will reduce or prevent injuries, illnesses, and 
accidental losses by providing workers with a safe and healthful 
workplace.
    Two commenters (Exs. 36, 42) contended that the purpose of the 
proposed rule--is to provide ``reasonable assurance'' that workers are 
``adequately protected'' from identified hazards--is distinctly 
different from supplemental proposed rule section 851.4(a) which 
requires a contractor to

[[Page 6867]]

``ensure'' that the workplace is ``free from'' recognized hazards. The 
commenters expressed concern that the phrase ``free from recognized 
hazards'' differed from ``adequate protection,'' and favored use of the 
term ``reasonable assurance'' as an appropriate and achievable 
standard. DOE notes, the reference to ``adequately protected'' is to 
emphasize that the rule is intended to fulfill DOE's responsibilities 
under the AEA. The reference to ``reasonable assurance'' is to identify 
the standard to be achieved. In revising the rule, DOE has moved these 
references from the section on purpose to the section on the general 
rule and specifically to the subsection on the worker safety and health 
program.
    One commenter (Ex. 16) noted that the phrase ``a contractor 
responsible for a covered workplace,'' which occurs in several proposed 
rule sections, could result in confusion on sites where DOE uses 
multiple contractors. The commenter recommended replacing the phrase 
with the following language, ``a contractor responsible for activities 
in a covered workplace.'' DOE acknowledges the commenter's concern. The 
purpose section is revised in the final rule and no longer makes 
reference to ``a contractor responsible for a covered workplace.'' DOE 
also notes that applicability of the rule is defined under section 
851.1(a), which clarifies that the final rule applies to the conduct of 
contractor activities at DOE sites.
    Two other commenters (Exs. 39, 49) also expressed concern about the 
reference in supplemental proposed rule section 851.2(a) to a ``covered 
workplace.'' The commenters noted that the term was not defined, 
leaving readers to assume that it refers to DOE facilities not excluded 
from the scope of the rule. One of the commenters (Ex. 49) suggested 
replacing the term ``covered workplace'' with ``DOE site'' since the 
supplemental proposed rule did not include a definition for ``covered 
workplace.'' DOE has responded to these comments by including a 
definition of the term ``covered workplace'' in final rule section 
851.3.
    One commenter (Ex. 27) pointed out that while supplemental proposed 
rule section 851.2(a) made no distinction in the severity of hazards 
covered by the rule, supplemental proposed rule section 851.4 included 
references to both ``hazards causing or likely to cause serious bodily 
harm'' and ``adequate protection from hazards identified in the 
workplace.'' As noted previously, the rule is intended to fulfill DOE's 
responsibility under the AEA to ensure adequate protection from all 
workplace hazards. The rule also is intended to achieve the objectives 
in the OSHA Act and DOE Order 440.1 to have workplaces free from 
hazards causing or likely to cause serious bodily harm or death. DOE 
views these objectives as complementary and has rewritten the general 
rule to clearly identify both objectives.
    Section 851.1(b)(2) clarifies that the rule establishes appropriate 
provisions for investigating the nature and extent of a violation of 
the requirements, for determining whether a violation of a requirement 
has occurred, and for imposing an appropriate remedy. DOE received no 
comments on the corresponding provision of the supplemental proposed 
rule during the public comment period.
Section 851.2--Exclusions
    As in the supplemental proposal, section 851.2 continues to 
emphasize that these regulations apply to activities performed by DOE 
contractors at DOE sites. Two commenters (Exs.13, 39) sought 
clarification that transportation was not covered under this rule. As 
discussed previously, ``scope'' section (851.1) of the final rule has 
been modified to make it clear that transportation to or from a DOE 
site is not covered by the rule.
    Section 4(b)(1) of the Occupational Safety and Health (OSH) Act (29 
U.S.C. 651 et seq.) provides that OSHA regulations do not apply where 
another federal agency exercises its statutory authority to prescribe 
safety and health standards and requirements. DOE currently exercises 
its statutory authority broadly throughout the DOE complex to provide 
safe and healthful workplaces. In a few cases, however, DOE has elected 
not to exercise its authority and to defer to regulation by OSHA under 
the OSH Act. Final rule section 851.2(a)(1) continues the status quo by 
excluding from coverage those facilities regulated by OSHA. The OSHA-
regulated facilities are: Western Area Power Administration; 
Southwestern Power Administration; Southeastern Power Administration; 
Bonneville Power Administration; National Energy Technology Laboratory 
(NETL), Morgantown, West Virginia; National Energy Technology 
Laboratory (NETL), Pittsburgh, Pennsylvania; Strategic Petroleum 
Reserve (SPR); National Petroleum Technology Office; Albany Research 
Center; Naval Petroleum and Oil Shale Reserves in Colorado, Utah, & 
Wyoming; and Naval Petroleum Reserves in California. See 65 FR 41492 
(July 5, 2000). Work performed on such sites for DOE by DOE 
contractors, however, would be subject to the applicable contract 
provisions outlined in the specified contract.
    DOE received numerous comments on the exclusion clause for work 
conducted at OSHA-regulated DOE sites. Several commenters (Exs. 15, 16, 
25, 29, 42, 49) proposed that facilities transferred to OSHA 
jurisdiction in the future should also be covered under the OSHA 
exclusion of the rule. DOE acknowledges the commenters recommendation 
and has reworded this provision in the final rule to clarify that the 
rule does not apply to work at a DOE site that is regulated by OSHA 
(i.e., as soon as a site is transferred to OSHA, work on that site no 
longer falls within the scope of the rule).
    One commenter (Ex. 5) que