80 FR 48282 - NASA FAR Supplement: Safety and Health Measures and Mishap Reporting

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

Federal Register Volume 80, Issue 155 (August 12, 2015)

NASA proposes to amend the NASA FAR Supplement (NFS) to revise a current clause related to safety and health measures and mishaps reporting by narrowing the application of the clause, resulting in a decrease in the reporting burden on contractors while reinforcing the measures contractors at NASA facilities must take to protect the safety of their workers, NASA employees, the public, and high value assets. The revision to this proposed rule is part of NASA's retrospective plan under Executive Order (EO) 13563 completed in August 2011.

[Federal Register Volume 80, Number 155 (Wednesday, August 12, 2015)]
[Proposed Rules]
[Pages 48282-48285]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-19772]


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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1823 and 1852

RIN 2700-AE16


NASA FAR Supplement: Safety and Health Measures and Mishap 
Reporting

AGENCY: National Aeronautics and Space Administration.

ACTION: Proposed rule.

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SUMMARY: NASA proposes to amend the NASA FAR Supplement (NFS) to revise 
a current clause related to safety and health measures and mishaps 
reporting by narrowing the application of the clause, resulting in a 
decrease in the reporting burden on contractors while reinforcing the 
measures contractors at NASA facilities must take to protect the safety 
of their workers, NASA employees, the public, and high value assets. 
The revision to this proposed rule is part of NASA's retrospective plan 
under Executive Order (EO) 13563 completed in August 2011.

DATES: Interested parties should submit written comments to the address 
shown below on or before October 13, 2015 to be considered in the 
formation of the final rule.

ADDRESSES:  Interested parties may submit comments, identified by RIN 
number 2700-AE16 via the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. 
Comments may also be submitted to Marilyn E. Chambers via email at 
[email protected]. NASA's full plan can be accessed on the 
Agency's open government Web site at http://www.nasa.gov/open/.

FOR FURTHER INFORMATION CONTACT: Marilyn E. Chambers, NASA, Office of 
Procurement, via email at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    The NFS clause at 1852.223-70, Safety and Health, is currently used 
when the--
     Contractor's work will be conducted completely or partly 
on premises owned or controlled by the Government;
     Work includes construction, alteration, or repair of 
facilities in excess of the simplified acquisition threshold;
     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); or
     Assessed risk and consequences of a failure to properly 
manage and control the hazard(s) warrants use of the clause.
    The clause 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. Similar 
requirements apply to the flow down of the clause to subcontracts.
    In addition to requiring the contractor to report certain mishaps 
or close calls, the clause currently requires the contractor to 
investigate these incidents and provide a report to the contracting 
officer both reporting on the incident and corrective action taken in 
response to the incident. The clause also contains reporting 
requirements related to the contract safety and health plan which is 
required under certain NASA contracts as set forth in 1823.7001(c).
    While the clause requires the contractor to take all reasonable 
safety and occupational health measures in

[[Page 48283]]

performing this contract, it does not specify what these measures 
should include. Additionally, while the clause provides for remedies 
available to the Government in the event of the contractor's failure or 
refusal to comply with safety and health measures and to institute 
prompt corrective action, it does not specify applicable remedies.
    This proposed rule addresses both reducing the burden on 
contractors under the current clause, being more specific on the safety 
and health measures the contractor must take when working on a Federal 
facility, and the remedies the Government may take for failure to 
maintain an effective safety and health program.
    The clause title is revised from ``Safety and Health'' to ``Safety 
and Health Measures and Mishap Reporting'' to emphasize the purpose of 
the clause, which is to ensure contractors working at Federal 
facilities are taking appropriate measures to protect the safety of 
their workers, other individuals working at the facility, and the 
public. The new title will also distinguish this clause from a 
similarly entitled provision at 1852.223.73, Safety and Health Plans, 
which has caused some confusion in the past. To reduce the burden on 
contractors, the clause prescription is revised to require it in 
solicitations and contracts above the simplified action threshold and 
to require it only for contracts involving performance at a Federal 
facility. The applicability to subcontracts is also revised to apply to 
subcontracts above the simplified action threshold where performance is 
at a Federal facility.

II. Discussion and Analysis

    NASA is proposing to amend NFS 1823.7001(a) to revise the title of 
the clause at 1852.223-70 from Safety and Health to Safety and Health 
Measures and Mishap Reporting. The clause prescription will be revised 
to apply only to solicitations and contracts above the simplified 
action threshold and to require it only for contracts involving 
performance at a Federal facility. The flow down to subcontracts is 
also revised to apply to subcontracts above the simplified action 
threshold where performance is at a Federal facility.
    Paragraph (b) of the clause is expanded to list safety and 
occupational health measures a contractor shall take in performing the 
contract. The contractor shall maintain an effective worksite safety 
and health program with organized and systematic methods to--
    1. Comply with Federal, State, and local safety and occupational 
health laws and with the safety and occupational health requirements of 
this contract;
    2. Describe and assign the responsibilities of managers, 
supervisors, and employees;
    3. Inspect regularly for and identify, evaluate, prevent, and 
control hazards;
    4. Orient and train employees to eliminate or avoid hazards; and
    5. Periodically review the program's effectiveness.
    These measures are recognized by the Office of Safety and Health 
Administration and industry as standards for finding hazards and 
developing a workplace plan for prevention and control of those 
hazards. Additionally, paragraph (b) is revised to add wording 
concerning authorized Government representatives rights to have access 
to and to examine the work site and related records under the contract 
in order to determine the adequacy of the Contractor's safety and 
occupational health measures.
    Paragraph (d) is revised to remove text describing various 
accidents, incidents, or exposures which constitute a mishap or close 
call in favor of a reference to NASA Procedural Requirement (NPR) 
8621.1, Mishap and Close Call Reporting, Investigating, and 
Recordkeeping, which contains a listing and description of the types of 
mishaps (types A, B, C, or D) or close calls the contractor must report 
to the contracting officer. NPR 8621.1 can be accessed at http://nodis3.gsfc.nasa.gov/displayDir.cfm?t=NPR&c=8621&s=1B.
    To reduce the burden on contractors, paragraph (e) is revised to 
eliminate a requirement for the contractor to investigate all work-
related incidents, accidents, and close calls, to determine their 
causes and furnish a report to the contracting officer and replace with 
a requirement to cooperate with any Government-authorized investigation 
by providing access to their employees and relevant information in the 
possession of the contractor regarding the mishap or close call.
    Paragraph (f) is revised to eliminate the requirement for the 
contracting officer to notify the contractor ``in writing'' of any 
noncompliance. Emergency circumstances may necessitate that this 
communication be done orally. Additionally, the term ``this clause'' is 
removed and replaced with ``the health and safety requirements of this 
contract'' to include any health or safety requirements contained 
elsewhere in the schedule. To reduce the burden on contractors, the 
requirement to report corrective action to the contracting officer is 
removed. In addition to a stop work order currently addressed in 
section (2) of paragraph (f), the remedies available to the Government 
when the contractor fails or refuses to take action to correct a 
serious or imminent danger to safety and health are revised to include 
requiring the contractor to remove and replace any contractor or 
subcontractor personnel performing under this contract who fail to 
comply with or violate applicable requirements of the clause; and that 
the contractor's failure to comply with the requirements of this clause 
may be included in appropriate databases of past performance and may be 
considered in any responsibility determination or evaluation of past 
performance.
    The clause flow down requirements in paragraphs (g) and (h) are 
simplified and reduced to apply only to subcontracts above the 
simplified acquisition threshold when the work will be conducted 
completely or partly on Federally-controlled facilities.
    Paragraph (i) is deleted. The requirement to provide Government 
representatives access to and the right to examine the work site in 
order to determine the adequacy of the contractor's safety and 
occupational health measures under this clause has been moved to 
paragraph (e).
    Paragraph (j) is deleted. Safety and health plan requirements are 
addressed elsewhere in the NFS.

III. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health, and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This is not a significant regulatory action and, therefore, was not 
subject to review under section 6(b) of E.O. 12866, Regulatory Planning 
and Review, dated September 30, 1993. This proposed rule is not a major 
rule under 5 U.S.C. 804.

IV. Regulatory Flexibility Act

    NASA does not expect this proposed rule to have a significant 
economic impact on a substantial number of small entities within the 
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., 
because the changes in the proposed rule reduce the burden on 
contractors. However, an initial regulatory flexibility analysis has 
been

[[Page 48284]]

performed and is summarized as follows:
    This proposed revision to NFS clause 1852.223-70 is undertaken to 
reduce burden on contractors by (1) changing the applicability of the 
NFS clause to only contracts over the simplified acquisition threshold 
and to only those performed on Federal facilities, and (2) by removing 
reporting requirements relating to mishap investigations and health and 
safety plans.
    The objective of this proposed rule is to (1) set forth safety 
program requirements for contractors performing on a Federal facility 
and (2) to protect the public, Agency and contractor workforce and 
assets from harm and manage the risk to which they are exposed by 
preventing the recurrence of close calls and mishaps. NASA's constant 
attention to safety is the cornerstone upon which we build mission 
success. NASA is committed to protecting the safety and health of the 
public, team members, and those assets that the Nation entrusts to 
NASA. It is NASA policy to report and track to resolution all 
corrective actions resulting from investigations of mishaps, incidents, 
nonconformances, anomalies, and safety and mission assurance audits and 
to distribute and use lessons learned to improve activities and 
operations. This is a vital component of NASA's safety program. The 
legal basis for this proposed rule is Executive Order 13563, Improving 
Regulation and Regulatory Review, as part of its retrospective analysis 
of existing rules.
    This proposed rule will apply to small entities performing 
contracts with an estimated values over the simplified acquisition 
threshold on Federal Facilities. The System for Award Management (SAM) 
data shows approximately 154 firms receive contracts to which NFS 
clause 1852.223-70 will apply. Of those 154 firms, 84 were identified 
as small businesses.
    Two reporting requirements are contained in the proposed clause. 
One is to notify the contracting officer of mishaps (types A, B, C, or 
D) or close calls as described in NASA Procedural Requirement (NPR) 
8621.1, Mishap and Close Call Reporting, Investigating, and 
Recordkeeping. The other is to provide a quarterly report on the number 
of mishaps, specifying lost time frequency rate, number of lost time 
injuries, exposure, and accident/incident dollar losses. This 
information is collected so that NASA can analyze mishap data to look 
for mishap trends and determine ways to improve the safety of its 
workforce and high-value assets and reduce the risk to its missions. 
This mishap information would be initially collected a company manager 
or supervisor. It may be reviewed by the firm's official responsible 
for safety, usually an occupational health and safety. Lost time 
frequency rate, number of lost time injuries, exposure, and accident/
incident dollar losses reports would be prepared by a safety official.
    The proposed rule does not duplicate, overlap, or conflict with any 
other Federal rules.
    Proposed changes to NFS clause 1852.223-70 were designed to reduce 
burden on contractors by reducing the applicability of the clause and 
reducing the paperwork burden. The information requested in the clause 
is essential to the NASA health and safety program. Further and 
differing compliance or reporting requirements or timetables for small 
entities are not feasible. Having an effective safety program is 
crucial to all businesses as it reduces injuries, lost time, property 
damage and creates a more safe and effective workplace for employees.
    NASA invites comments from small business concerns and other 
interested parties on the expected impact of this proposed rule on 
small entities concerning the existing regulations in subparts affected 
by this proposed rule consistent with 5 U.S.C. 610. Interested parties 
must submit such comments separately and should cite 5 U.S.C. 610 in 
correspondence.

V. Paperwork Reduction Act

    The proposed rule contains information collection requirements that 
require the approval of the Office of Management and Budget (OMB) under 
the Paperwork Reduction Act (44 U.S.C. chapter 35). This information 
collection is in use without an OMB Control Number. Accordingly, NASA 
has submitted a request to OMB for approval of an information 
collection concerning Safety and Health Measures and Mishap Reporting 
that the Agency has begun.
    A. Public reporting burden for this collection of information is 
estimated to be approximately 5 hours per response, including the time 
for reviewing instructions, searching existing data sources, gathering 
and maintaining the data needed, and completing and reviewing the 
collection of information. It is estimated that approximately 154 
respondents will provide a total of 308 notifications of Type A, B, C, 
or D Mishap, or Close Call notifications (approximately 2 notifications 
per respondent per year). Additionally, each of 154 respondents will 
submit one quarterly report four times a year. Thus, responses from 
respondents are estimated to include 2 mishap notifications and 4 
quarterly reports for a total of 6 responses annually per respondent. 
Based on these figures, the combined total number of responses per year 
for all respondents will be 308 mishap reports and 616 quarterly 
reports for a total of 924 total responses for all respondents. It is 
estimated to take a respondent approximately 4 hours to gather the 
required information and notify the contracting officer of a Type A, B, 
C, or D Mishap or Close Call. It is estimated to take respondents 
approximately 5 hours to prepare and submit each quarterly report 
specifying lost-time frequency rate, number of lost-time injuries, 
exposure, and accident/incident dollar losses. The annual reporting 
burden is estimated as follows:
    Estimated Number of Respondents: 154.
    Responses per respondent: 6.
    Total Annual responses: 924.
    Estimated Hours per Response: 4.67.
    Estimated Total Annual Burden Hours: 4,312.
    B. Request for Comments Regarding Paperwork Burden. Public comments 
are particularly invited on: Whether this collection of information is 
necessary for the proper performance of functions of the NFS, and will 
have practical utility; whether our estimate of the public burden of 
this collection of information is accurate, and based on valid 
assumptions and methodology; ways to enhance the quality, utility, and 
clarity of the information to be collected; and ways in which we can 
minimize the burden of the collection of information on those who are 
to respond, through the use of appropriate technological collection 
techniques or other forms of information technology.

List of Subjects in 48 CFR 1823 and 1852

    Government procurement.

Cynthia Boots,
Alternate Federal Register Liaison.

    Accordingly, 48 CFR parts 1823 and 1852 are proposed to be amended 
as follows:

PART 1823--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE 
ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE

0
1. The authority citation for part 1823 is revised to read as follows:

    Authority:  51 U.S.C. 20113(a) and 48 CFR chapter 1.


[[Page 48285]]


0
2. Revise section 1823.7001 to read as follows:


1823.7001  NASA solicitation provisions and contract clauses.

    (a) Insert the clause at 1852.223-70, Safety and Health Measures 
and Mishap Reporting, in solicitations and contracts above the 
simplified acquisition threshold when the work will be conducted 
completely or partly on federally-controlled facilities.
    (b) The clause prescribed in paragraph (a) of this section may be 
excluded, with the approval of the installation official(s) responsible 
for matters of safety and occupational health.
    (c) The contracting officer shall insert the provision at 1852.223-
73, Safety and Health Plan, in solicitations containing the clause at 
1852.223-70. This provision may be modified to identify specific 
information that is to be included in the plan. After receiving the 
concurrence of the center safety and occupational health official(s), 
the contracting officer shall include the plan in any resulting 
contract. Insert the provision with its Alternate I, in Invitations for 
Bid containing the clause at 1852.223-70.
    (d)(1)The contracting officer shall insert the clause at 1852.223-
75, Major Breach of Safety or Security, in all solicitations and 
contracts with estimated values of $500,000 or more, unless waived at a 
level above the contracting officer with the concurrence of the project 
manager and the installation official(s) responsible for matters of 
security, export control, safety, and occupational health.
    (2) Insert the clause with its Alternate I if--
    (i) The solicitation or contract is with an educational or other 
nonprofit institution and contains the termination clause at FAR 
52.249-5; or
    (ii) The solicitation or contract is for commercial items and 
contains the clause at FAR 52.212-4.
    (3) For contracts with estimated values below $500,000, use of the 
clause is optional.
    (e) For all solicitations and contracts exceeding the micro-
purchase threshold that do not include the clause at 1852.223-70, 
Safety and Health, the contracting officer shall insert the clause at 
1852.223-72, Safety and Health (Short Form).

PART 1852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
3. The authority citation for part 1852 continues to read as follows:

    Authority:  51 U.S.C. 20113(a) and 48 CFR chapter 1.

0
4. Revise section 1852.223-70 to read as follows:


1852.223-70  Safety and health measures and mishap reporting.

    As prescribed in 1823.7004(1)(a), insert the following clause:

Safety and Health Measures and Mishap Reporting

(XX/XX)

    (a) Safety is the freedom from those conditions that can cause 
death, injury, occupational illness, damage to or loss of equipment 
or property, or damage to the environment. NASA's safety priority is 
to protect: (1) The public, (2) astronauts and pilots, (3) the NASA 
workforce (including contractor employees working on NASA 
contracts), and (4) high-value equipment and property.
    (b) The Contractor shall take all reasonable safety and 
occupational health measures in performing this contract. The 
Contractor shall maintain an effective worksite safety and health 
program with organized and systematic methods to--
    (1) Comply with Federal, State, and local safety and 
occupational health laws and with the safety and occupational health 
requirements of this contract;
    (2) Describe and assign the responsibilities of managers, 
supervisors, and employees;
    (3) Inspect regularly for and identify, evaluate, prevent, and 
control hazards;
    (4) Orient and train employees to eliminate or avoid hazards; 
and
    (5) Periodically review the program's effectiveness. Authorized 
Government representatives shall have access to and the right to 
examine the work site and related records under this contract in 
order to determine the adequacy of the Contractor's safety and 
occupational health measures.
    (c) The Contractor shall take, or cause to be taken, any other 
safety, and occupational health measures the Contracting Officer may 
reasonably direct. To the extent that the Contractor may be entitled 
to an equitable adjustment for those measures under the terms and 
conditions of this contract, the equitable adjustment shall be 
determined pursuant to the procedures of the changes clause of this 
contract; provided, that no adjustment shall be made under this 
Safety and Health clause for any change for which an equitable 
adjustment is expressly provided under any other clause of the 
contract.
    (d) The Contractor shall immediately notify the Contracting 
Officer or a designee of any Type A, B, C, or D Mishap, or close 
calls as defined in NASA Procedural Requirement (NPR) 8621.1, Mishap 
and Close Call Reporting, Investigating, and Recordkeeping. In 
addition, service contractors (excluding construction contracts) 
shall provide quarterly reports specifying lost-time frequency rate, 
number of lost-time injuries, exposure, and accident/incident dollar 
losses.
    (e) The Contractor shall cooperate with any Government-
authorized investigation of Type A, B, C, or D Mishaps, or Close 
Calls reported pursuant to paragraph (d) of this clause by providing 
access to employees; and relevant information in the possession of 
the Contractor regarding the mishap or close call.
    (f)(1) The Contracting Officer may notify the Contractor in 
writing of any noncompliance with the health and safety requirements 
of this contract 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 corrective action.
    (2) If the Contractor fails or refuses to institute prompt 
corrective action, the Contracting Officer may invoke the stop-work 
order clause in this contract. In addition to other remedies 
available to the Government--
    (i) The Contractor shall remove and replace any Contractor or 
subcontractor personnel performing under this contract who fail to 
comply with or violate applicable requirements of this clause; and
    (ii) The Contractor's failure to comply with the requirements of 
this clause may be included in the appropriate databases of past 
performance and may be considered in any responsibility 
determination or evaluation of past performance.
    (g) The Contractor shall insert the substance of this clause, 
including this paragraph (g) in all subcontracts above the 
simplified acquisition threshold when the work will be conducted 
completely or partly on federally-controlled facilities.


(End of clause)

[FR Doc. 2015-19772 Filed 8-11-15; 8:45 am]
 BILLING CODE 7510-13-P