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| Subpart E | Enforcement Process | 851.40 – 851.45 | ||||||||||||||||||
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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.; 28 U.S.C. 2461 note.
71 FR 6931, Feb. 9, 2006, unless otherwise noted.
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Nomenclature changes to part 851 appear at 88 FR 41293, June 26, 2023.
(a) The Enforcement 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 Enforcement Director deems necessary and appropriate to the conduct of the investigation or inspection. DOE Enforcement Officers have the right to enter work areas without delay to the extent practicable, to conduct inspections under this subpart.
(b) Contractors must fully cooperate with the Enforcement Director during all phases of the enforcement process and provide complete and accurate records and documentation as requested by the Enforcement Director during investigation or inspection activities.
(c) Any worker or worker representative may request that the Enforcement Director initiate an investigation or inspection pursuant to paragraph (a) of this section. A request for an investigation or inspection must describe the subject matter or activity to be investigated or inspected as fully as possible and include supporting documentation and information. The worker or worker representative has the right to remain anonymous upon filing a request for an investigation or inspection.
(d) The Enforcement Director must inform any contractor that is the subject of an investigation or inspection in writing at the initiation of the investigation or inspection and must inform the contractor of the general purpose of the investigation or inspection.
(e) DOE shall not disclose information or documents that are obtained during any investigation or inspection unless the Enforcement Director directs or authorizes the public disclosure of the investigation. Prior to such authorization, DOE must determine that disclosure is not precluded by the Freedom of Information Act, 5 U.S.C. 552 and part 1004 of this title. Once disclosed pursuant to the Enforcement Director's authorization, the information or documents are a matter of public record.
(f) A request for confidential treatment of information for purposes of the Freedom of Information Act does not prevent disclosure by the Enforcement Director if the Enforcement 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 Enforcement 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 corrective action taken or not taken by the contractor, any mitigating or aggravating circumstances, and any other information. A conference is not normally open to the public and DOE does not make a transcript of the conference. The Enforcement 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 Enforcement Director may close the investigation without prejudice.
(j) The Enforcement 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 Enforcement Director may sign, issue and serve subpoenas.
[71 FR 6931, Feb. 9, 2006, as amended at 88 FR 41294, June 26, 2023]
(a) DOE encourages settlement of a proceeding under this subpart at any time if the settlement is consistent with this part. The Enforcement 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 Enforcement Director may resolve any issues in an outstanding proceeding under this subpart with a consent order.
(1) The Enforcement Director and the contractor, or a duly authorized representative thereto, 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 that form the basis for the order and what remedy, if any, is imposed.
(5) A consent order shall constitute a final order.
[71 FR 6931, Feb. 9, 2006, as amended at 88 FR 41294, June 26, 2023]
(a) Based on a determination by the Enforcement Director that there is a reasonable basis to believe a contractor has violated or is continuing to violate a requirement of this part, the Enforcement Director may issue a preliminary notice of violation (PNOV) to the contractor.
(b) A PNOV 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 obligation of the contractor to submit a written reply to the Enforcement Director within 30 calendar days of receipt of the PNOV.
(c) A reply to a PNOV must contain a statement of all relevant facts pertaining to an alleged violation.
(1) The reply must:
(i) State any facts, explanations and arguments that 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 that 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.
(d) If a contractor fails to submit a written reply within 30 calendar days of receipt of a PNOV:
(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.
(e) A copy of the PNOV must be prominently posted, once final, at or near the location where the violation occurred until the violation is corrected.
[71 FR 6931, Feb. 9, 2006, as amended at 88 FR 41294, June 26, 2023]
(a) If a contractor submits a written reply within 30 calendar days of receipt of a preliminary notice of violation (PNOV), that presents a disagreement with any aspect of the PNOV and civil penalty, the Enforcement 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 Enforcement Director that a contractor has violated or is continuing to violate a requirement of this part, the Enforcement 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.
(c) 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 § 851.42:
(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.
[71 FR 6931, Feb. 9, 2006, as amended at 88 FR 41294, June 26, 2023]
(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 10 CFR part 1003, 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.
[71 FR 6931, Feb. 9, 2006, as amended at 88 FR 41294, June 26, 2023]
(a) Notwithstanding any other provision of this part, the NNSA Administrator, rather than the Enforcement 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 Enforcement Director's recommendation.
[71 FR 6931, Feb. 9, 2006, as amended at 88 FR 41294, June 26, 2023]