[Federal Register Volume 67, Number 68 (Tuesday, April 9, 2002)]
[Rules and Regulations]
[Pages 17016-17017]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-8548]
[[Page 17016]]
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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1823, 1836 and 1852
RIN 2700-AC33
Safety and Health
AGENCY: National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: This final rule amends the NASA FAR Supplement (NFS) by
revising the prescription for the use of NASA Safety and Health
solicitation provisions and contract clauses; removing references to
the Service Contract Act (SCA) and Walsh-Healey Public Contracts Act
regulations; adding references to the Occupational Safety and Health
Act (OSHA) and Department of Transportation (DOT) regulations; and
clarifying when a Safety and Health Plan is to be included in a
contract or solicitation. This final rule also requires the use of
NASA's safety and health provisions instead of the FAR Accident
Prevention clause, and allows for oral notification, with written
confirmation to the contractor, of Safety and Health noncompliance that
may pose a serious or imminent danger to safety and health.
EFFECTIVE DATE: April 9, 2002.
FOR FURTHER INFORMATION CONTACT: Jeff Cullen, (202) 358-1784,
[email protected].
SUPPLEMENTARY INFORMATION:
A. Background
A proposed rule was published in the Federal Register on December
13, 2001 (66 FR 64391-64392). One comment was received from industry.
The comment was supportive of the rule and did not recommended any
changes. This final rule adopts the proposed rule without change. NASA
has required the inclusion of a NASA Safety and Health clause and
submission of a contractor Safety and Health Plan for contracts that
are greater than $1 million, involve construction, or have hazardous
deliverable end items or operations. Exclusion of the clause has been
allowed when the Contracting Officer determined that Walsh-Healey or
Service Contract Act (if applicable) regulations constituted adequate
safety and health protection. This final rule removes the dollar
threshold from the Safety and Health clause prescription since safety
and health requirements should be determined by the risks rather than
cost of the contract requirements. Also, to assure that contractors are
held to the same standards for mishap prevention as the Government, the
revised guidance requires use of a Safety and Health clause and
submission of a Safety and Health Plan when performance is on a
Government facility or when assessed risk warrants inclusion. This
final rule also revises the conditions that must be met for excluding
the clause from contracts, reflecting the greater Government and
industry use of Occupational Safety and Health Administration (OSHA)
and Department of Transportation (DOT), rather than Walsh-Healey or
Service Contract Act safety and heath regulations, and includes new NFS
guidance on use of the NASA Safety and Health clause instead of the FAR
Accident Prevention clause. Furthermore, this final rule makes the
requirements for the use of the NASA Safety and Health clause for
subcontracts consistent with prime contract requirements.
B. Regulatory Flexibility Act
NASA certifies that this rule will not have a significant economic
impact on a substantial number of small business entities within the
meaning of the Regulatory Flexibility Act (5 USC 601, et seq.) because
these changes clarify existing policy and reflect appropriate safety
and health regulations.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the NFS do not impose any recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 41 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 1823, 1836 and 1852
Government procurement.
Tom Luedtke,
Assistant Administrator for Procurement.
Accordingly, 48 CFR parts 1823, 1836 and 1852 are amended as
follows:
1. The authority citation for 48 CFR parts 1823, 1836 and 1852
continues to read as follows:
Authority: 42 U.S.C. 2473(c)(1).
PART 1823--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND
DRUG-FREE WORKPLACE
2. Amend section 1823.7001 in the second sentence of paragraph (c)
by removing ``clause'' and adding ``provision'' in its place; and
revising paragraphs (a) and (b) to read as follows:
1823.7001 NASA solicitation provisions and contract clauses.
(a) The clause at 1852.223-70, Safety and Health, shall be included
in all solicitations and contracts when one or more of the following
conditions exist:
(1) The work will be conducted completely or partly on premises
owned or controlled by the Government.
(2) The work includes construction, alteration, or repair of
facilities in excess of the simplified acquisition threshold.
(3) The work, regardless of place of performance, involves hazards
that could endanger the public, astronauts and pilots, the NASA
workforce (including contractor employees working on NASA contracts),
or high value equipment or property, and the hazards are not adequately
addressed by Occupational Safety and Health Administration (OSHA) or
Department of Transportation (DOT) regulations (if applicable).
(4) When the assessed risk and consequences of a failure to
properly manage and control the hazard(s) warrants use of the clause.
(b) The clause prescribed in paragraph (a) of this section may be
excluded, regardless of place of performance, when the contracting
officer, with the approval of the installation official(s) responsible
for matters of safety and occupational health, determines that the
application of OSHA and DOT regulations constitutes adequate safety and
occupational health protection.
* * * * *
PART 1836--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
3. Add section 1836.513 to read as follows:
1836.513 Accident prevention.
The contracting officer must insert the clause at 1852.223-70,
Safety and Health, in lieu of FAR clause 52.236-13, Accident
Prevention, and its Alternate I.
PART 1852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
4. Amend the clause at section 1852.223-70 by revising the date of
the clause; revising paragraphs (f)(1) and (g); redesignating
paragraphs (h) and (i) as (i) and (j) respectively, and adding a new
paragraph (h) to read as follows:
1852.223-70 Safety and Health.
* * * * *
Safety and Health (April 2002)
* * * * *
(f)(1) The Contracting Officer may notify the Contractor in
writing of any
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noncompliance with this clause and specify corrective actions to be
taken. When the Contracting Officer becomes aware of noncompliance
that may pose a serious or imminent danger to safety and health of
the public, astronauts and pilots, the NASA workforce (including
contractor employees working on NASA contracts), or high value
mission critical equipment or property, the Contracting Officer
shall notify the Contractor orally, with written confirmation. The
Contractor shall promptly take and report any necessary corrective
action.
* * * * *
(g) The Contractor (or subcontractor or supplier) shall insert
the substance of this clause, including this paragraph (g) and any
applicable Schedule provisions and clauses, with appropriate changes
of designations of the parties, in all solicitations and
subcontracts of every tier, when one or more of the following
conditions exist:
(1) The work will be conducted completely or partly on premises
owned or controlled by the Government.
(2) The work includes construction, alteration, or repair of
facilities in excess of the simplified acquisition threshold.
(3) The work, regardless of place of performance, involves
hazards that could endanger the public, astronauts and pilots, the
NASA workforce (including Contractor employees working on NASA
contracts), or high value equipment or property, and the hazards are
not adequately addressed by Occupational Safety and Health
Administration (OSHA) or Department of Transportation (DOT)
regulations (if applicable).
(4) When the Contractor (or subcontractor or supplier)
determines that the assessed risk and consequences of a failure to
properly manage and control the hazard(s) warrants use of the
clause.
(h) The Contractor (or subcontractor or supplier) may exclude
the provisions of paragraph (g) from its solicitation(s) and
subcontract(s) of every tier when it determines that the clause is
not necessary because the application of the OSHA and DOT (if
applicable) regulations constitute adequate safety and occupational
health protection. When a determination is made to exclude the
provisions of paragraph (g) from a solicitation and subcontract, the
Contractor must notify and provide the basis for the determination
to the Contracting Officer. In subcontracts of every tier above the
micro-purchase threshold for which paragraph (g) does not apply, the
Contractor (or subcontractor or supplier) shall insert the substance
of paragraphs (a), (b), (c), and (f) of this clause).
* * * * *
5. Amend the clause at section 1852.223-72 by revising the date of
the clause, and revising paragraph (d) to read as follows:
1852.223-72 Safety and Health (Short Form).
* * * * *
Safety and Health (Short Form) (April 2002)
* * * * *
(d) The Contracting Officer may notify the Contractor in writing
of any noncompliance with this clause and specify corrective actions
to be taken. In situations where the Contracting Officer becomes
aware of noncompliance that may pose a serious or imminent danger to
safety and health of the public, astronauts and pilots, the NASA
workforce (including Contractor employees working on NASA
contracts), or high value mission critical equipment or property,
the Contracting Officer shall notify the Contractor orally, with
written confirmation. The Contractor shall promptly take and report
any necessary corrective action. The Government may pursue
appropriate remedies in the event the Contractor fails to promptly
take the necessary corrective action.
* * * * *
6. Revise the provision at section 1852.223-73 and the introductory
text of Alternate I to the provision to read as follows:
1852.223-73 Safety and Health Plan.
* * * * *
Safety and Health Plan (April 2002)
(a) The offeror shall submit a detailed safety and occupational
health plan as part of its proposal (see NPG 8715.3, NASA Safety
Manual, Appendices). The plan shall include a detailed discussion of
the policies, procedures, and techniques that will be used to ensure
the safety and occupational health of Contractor employees and to
ensure the safety of all working conditions throughout the
performance of the contract.
(b) When applicable, the plan shall address the policies,
procedures, and techniques that will be used to ensure the safety
and occupational health of the public, astronauts and pilots, the
NASA workforce (including Contractor employees working on NASA
contracts), and high-value equipment and property.
(c) The plan shall similarly address subcontractor employee
safety and occupational health for those proposed subcontracts that
contain one or more of the following conditions:
(1) The work will be conducted completely or partly on premises
owned or controlled by the government.
(2) The work includes construction, alteration, or repair of
facilities in excess of the simplified acquisition threshold.
(3) The work, regardless of place of performance, involves
hazards that could endanger the public, astronauts and pilots, the
NASA workforce (including Contractor employees working on NASA
contracts), or high value equipment or property, and the hazards are
not adequately addressed by Occupational Safety and Health
Administration (OSHA) or Department of Transportation (DOT)
regulations (if applicable).
(4) When the assessed risk and consequences of a failure to
properly manage and control the hazards warrants use of the clause.
(d) This plan, as approved by the Contracting Officer, will be
included in any resulting contract.
(End of provision)
Alternate I (April 2002)
As prescribed in 1823.7001(c), delete the first sentence in
paragraph (a) of the basic provision and substitute the following:
* * * * *
[FR Doc. 02-8548 Filed 4-8-02; 8:45 am]
BILLING CODE 7510-01-P