OSHA Instruction CPL 2.95 February 10, 1992 Directorate of Compliance
Subject: Enforcement Authority at the Department of Energy's (DOE)
Government-Owned, Contractor-Operated (GOCO) Sites
A. PURPOSE. This instruction serves as clarification of OSHA's policy for
inspections at Department of Energy GOCO sites.
B. SCOPE. This instruction applies OSHA-wide.
C. REFERENCE. Memorandum to the Chairman of the U.S. Atomic Energy
Commission, (AEC) from the Secretary of Labor, dated February 4, 1974,
Jurisdictional Authority - GOCO Sites.
D. ACTION. Regional Administrators and Area Directors shall ensure that
the policy established by this instruction is transmitted to all Area and
District Offices, and to appropriate staff.
E. FEDERAL PROGRAM CHANGE. This instruction describes a Federal program
change which affects State programs. Each Regional Administrator shall:
1. Ensure that a copy of this change is promptly forwarded to each
State designee, using a format consistent with the Plan Change-Two-Way
Memorandum in Appendix P, OSHA Instruction STP 2.22A, CH-2.
2. Explain the technical content of this change to the State
designees as requested.
3. Inform State plan States with 4(b)(1) language in their
occupational safety and health enabling legislation that they should follow
OSHA's inspection policy contained in G. of this instruction. Those State
plan States that do not include 4(b)(1) language in their enabling
legislation are encouraged to honor OSHA's inspection policy with respect to
new construction activities within DOE sites.
4. Ensure that State designees acknowledge receipt of this Federal
program change in writing to the Regional Administrator as soon as the
State's intention is known, but not later than 70 calendar days after the
date of issuance (10 days for mailing and 60 days for response). This
acknowledgment must include a description either of the State's plan to
implement the change or the reasons why this change should not apply to that
5. Ensure that State designees submit a plan supplement, in
accordance with OSHA Instruction STP 2.22A, CH-3, as appropriate, following
the established schedule that is agreed upon by the State and Regional
Administrator to submit non-Field Operations Manual/OSHA Technical Manual
Federal program changes.
a. If a State intends to follow OSHA's policy described in
this instruction, the State must submit either a revised version of this
instruction, adapted as appropriate to reference State law, regulations and
administrative structure, or a cover sheet describing how references in this
instruction correspond to the State's structure. The State's acknowledgment
of the Plan-Change Two-Way Memorandum may fulfill the plan supplement
requirement if the appropriate documentation is provided.
b. If the State adopts an alternative to Federal guidelines,
the State's submission must identify and provide a rationale for all
substantial differences from Federal guidelines to allow OSHA to judge
whether a different State procedure is as effective as comparable Federal
6. Review policies, instructions and guidelines issued by the
State to determine that this change has been communicated to State
F. BACKGROUND. OSHA's jurisdictional policy with regard to DOE "GOCO"
sites has been based on a 1974 letter from the Secretary of Labor to the
former Chairman of the AEC, Dixy Lee Ray. Since the AEC had not challenged
OSHA's position, which retained OSHA's authority to inspect new construction
activity, a tacit acceptance by DOE of OSHA's interpretation of the
jurisdictional lines was assumed.
A recent construction-related inspection at a DOE site resulted in
citations which were issued to and contested by the contractor, who
challenged OSHA's jurisdiction. DOE reevaluated their position with regard
to exercise of jurisdiction, and supported the contractor's
Case law generally supports DOE's position. The Solicitor of Labor
has recommended that OSHA not attempt to exercise jurisdiction over new
construction activities within DOE sites.
G. INSPECTION POLICY. New construction activities within DOE sites will no
longer be considered part of OSHA's jurisdiction. When such sites appear on
targeting lists, they shall be deleted. If inspections are underway at such
sites, they shall be terminated with appropriate explanations to the employer
and to employee representative. Complaints from employees at such sites shall
be referred to DOE for resolution.
Gerard F. Scannell Assistant Secretary
DISTRIBUTION: National, Regional, and Area Offices All Compliance Officers
State Plan Designees 7 (c)(1) Consultation Project Managers NIOSH Regional