[Federal Register Volume 61, Number 198 (Thursday, October 10, 1996)]
[Proposed Rules]
[Pages 53185-53186]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-26083]



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DEPARTMENT OF ENERGY

48 CFR Parts 917, 950, 952 and 970

RIN 1991-AB-28


Acquisition Regulation; Department of Energy Management and 
Operating Contracts

AGENCY: Department of Energy.

ACTION: Notice of limited reopening of the comment period.

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SUMMARY: On June 24, 1996, the Department of Energy (DOE or Department) 
published a notice of proposed rulemaking (61 FR 32588) (DOE-NOPR) to 
amend the Department of Energy Acquisition Regulation (DEAR) to 
incorporate certain contract reform initiatives. Among the contract 
reform initiatives contained in the DOE-NOPR was a proposal to amend 48 
CFR (DEAR) 970.5204-2, Environment, Safety and Health. The purpose of 
this notice is to publish additional proposed changes to that clause 
and invite comments on those revisions.

DATES: Written comments (1 copy) on the revisions presented in this 
notice must be submitted by October 25, 1996.

ADDRESSES: All comments are to be submitted to Connie P. Fournier, 
Office of Policy (HR-51), Department of Energy, 1000 Independence 
Avenue, SW, Washington, D.C. 20585, (202) 586-8245; (202) 586-0545 
(facsimile); [email protected] (Internet).
    The administrative record regarding this rulemaking is on file for 
public inspection and is located in the Department's Freedom of 
Information Reading Room, Room 1E-190, 1000 Independence Avenue, SW, 
Washington, DC 20585, (202) 586-6020.

FOR FURTHER INFORMATION CONTACT: Connie P. Fournier, Office of Policy 
(HR-51), Department of Energy, 1000 Independence Avenue, SW, 
Washington, D.C. 20585, (202) 586-8245.

SUPPLEMENTARY INFORMATION: On June 24, 1996, DOE published a NOPR to 
amend the Department of Energy Acquisition Regulation (DEAR) to 
incorporate certain contract reform initiatives. Among the Department-
wide contract reform initiatives contained in the DOE-NOPR was a 
proposal to amend 48 CFR (DEAR) 970.5204-2, Environment, Safety and 
Health (ES&H). The Department is revising its proposal to amend that 
clause in this notice.
    One commenter on the ES&H clause published in the NOPR pointed out 
that the proposed ES&H clause should be consistent with the Defense 
Nuclear Facilities Safety Board (DNFSB) Recommendation 95-2, 
``Integrated Safety Management.'' The proposed clause was developed and 
published prior to the issuance of the DNFSB's 95-2 recommendation. DOE 
realizes that the clause needs to incorporate the concepts of that 
recommendation and the revised proposed clause is intended to reflect 
those concepts. Additional information regarding the DNFSB's 
recommendation is included with the administrative record available in 
the Public Reading Room.
    Three commenters requested the Department describe the specific 
laws, regulations, and directives applicable to contractors in the ES&H 
clause. A separate clause, ``970.5204-XX Laws, Regulations, and DOE 
Directives'' (Directives clause) published in the NOPR (61 FR 32603), 
would define the scope of requirements that are applicable to DOE 
contractors. The Directives clause outlines flexible processes that 
could be used to determine which DOE Directives are required and will 
be specifically referenced in the provisions of the ES&H clause.
    One commenter stated that the use of the terms ``workers'' and 
``employees'' in the ES&H clause could cause confusion by implying two 
different sets of personnel. The revised proposed clause would use only 
the term ``employees.''
    Additional comments were received concerning the original proposed 
clause and will be addressed in the notice of final rulemaking. The 
revisions to the proposed clause contained in this Notice include: (1) 
A change in the title of the clause; (2) the addition of guiding 
principles for contractors to follow in the performance of work as 
outlined in the Department's implementation plan dated April 18, 1996, 
for DNFSB recommendation 95-2; and (3) the modification of the 
requirement for contractors to submit an ES&H Management Plan to a 
requirement for submission of a Safety Management System (System).

    (Note: ``safety'' includes environment, safety and health.)

    The submission of a System will not conflict with, or create a 
greater burden than, the submission of the ES&H Management Plan 
described in the ES&H clause published in the NOPR. Instead, it will 
simply provide a broader context within which the Department can 
fulfill its commitments to the DNFSB.
    The revised proposed ES&H clause is intended to expand and modify 
the original language to assure contractors understand DOE expectations 
regarding integrated safety management. Specifically, the proposed 
clause requires documentation of the contractor's System for approval 
by DOE. This establishes an agreement between the contractor and DOE on 
how the contractor will ensure the protection of the public, employees 
and the environment as well as implement the Department's Safety 
Management System Policy (DOE P 450.4).
    The submission and approval of a System would likely be done on a 
one-time basis, assuming the contractor's System proves satisfactory in 
practice; however, the revised proposed clause would require that the 
System provide for annual updates and mutual agreement between the 
contractor and DOE regarding ES&H performance objectives, performance 
measures tied to rewards/penalties, and performance commitments. Such 
commitments are intended to highlight the contractor's most significant 
ES&H vulnerabilities, specific work to be accomplished to address those 
vulnerabilities, as well as assure major obligations to external ES&H 
oversight and regulatory bodies are met within budget constraints. 
Accordingly, the annual updates would identify the resources needed to 
conduct work safely in terms of ES&H support and assure appropriate 
skill mix and numbers of personnel in the ES&H area.
    The Department thanks the commenters for their participation in 
this rulemaking already and urges interested members of the public to 
comment on this revised approach. Additional changes may be contained 
in the final rule.

    Issued in Washington, D.C. on October 7, 1996.
Richard H. Hopf,
Deputy Assistant Secretary for Procurement and Assistance Management.

    For the reasons set forth in the preamble, Chapter 9 of Title 48 
of the Code of Federal Regulations is proposed to be amended as set 
forth below:

PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS

    1. The authority citation for Part 970 continues to read as 
follows:

    Authority: Sec. 161 of the Atomic Energy Act of 1954 (42 U.S.C. 
2201) sec. 644 of the Department of Energy Organization Act, Public 
Law 95-91 (42 U.S.C. 7254).

    2. Subsection 970.5204-2 revised to read as follows:

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970.5204-2  Integration of Environment, Safety and Health into Work 
Planning and Execution.

    As prescribed in 48 CFR (DEAR) 970.2303-2(a), insert the following 
clause.

Integration of Environment, Safety and Health into Work Planning and 
Execution

(Month and Year TBE)

    (a) In performing work under this contract, the contractor shall 
perform work safely, in a manner that ensures adequate protection 
for employees, the public, and the environment, and shall be 
accountable for the safe performance of work. Employees include 
subcontractor employees. In accomplishment of this requirement, the 
contractor shall implement programs to prevent accidents, releases, 
and exposures. The contractor shall ensure that management of 
environment, safety and health (ES&H) functions and activities 
becomes an integral and discernible part of the contractor's work 
planning and execution processes. The contractor shall, in the 
performance of work, ensure that:
    (1) Line management is responsible for the protection of 
employees, the public, and the environment. Line management includes 
those contractor and subcontractor employees managing or supervising 
employees performing work.
    (2) Clear and unambiguous lines of authority and responsibility 
for ensuring ES&H are established and maintained at all 
organizational levels.
    (3) Personnel possess the experience, knowledge, skills, and 
abilities that are necessary to discharge their responsibilities.
    (4) Resources are effectively allocated to address ES&H, 
programmatic, and operational considerations. Protecting employees, 
the public, and the environment is a priority whenever activities 
are planned and performed.
    (5) Before work is performed, the associated hazards are 
evaluated and an agreed-upon set of ES&H standards and requirements 
are established which, if properly implemented, provide adequate 
assurance that employees, the public, and the environment are 
protected from adverse consequences.
    (6) Administrative and engineering controls to prevent and 
mitigate hazards are tailored to the work being performed and 
associated hazards. Emphasis should be on designing the work and/or 
controls to reduce or eliminate the hazards.
    (7) The conditions and requirements to be satisfied for 
operations to be initiated and conducted are clearly established and 
agreed-upon. The extent of documentation and level of authority for 
agreement shall be tailored to the complexity and hazards associated 
with the work and shall be established in the Safety Management 
System (System).
    (b) The contractor shall manage and perform work in accordance 
with a documented System that fulfills all conditions in paragraph 
(a) of this clause at a minimum. The contractor shall exercise a 
degree of care commensurate with the work and the associated 
hazards. Documentation of the System shall describe how the 
contractor will:
    (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.
    (c) The System shall describe how the contractor will establish, 
document, and implement safety performance objectives, performance 
measures, and commitments in response to DOE program and budget 
execution guidance while maintaining the integrity of the System. 
The System shall also describe how the contractor will measure 
system effectiveness.
    (d) The contractor shall comply with, and assist the Department 
of Energy in complying with (where identified by the Department),
    (i) All applicable Federal and non-Federal ES&H laws, 
regulations, and
    (ii) Applicable directives identified in the clause of this 
contract on Laws, Regulations, and DOE Directives. The contractor 
shall cooperate with Federal and non-Federal agencies having 
jurisdiction over ES&H matters under this contract.
    (e) The contractor shall submit to the contracting officer 
documentation of its System for review and approval. Dates for 
submittal, discussions, and revisions to the System will be 
established by the contracting officer. Guidance on the preparation, 
content, review, and approval of the System addressing all aspects 
of ES&H is provided in DOE Guide G 450.4, ``Integrated Safety 
Management,'' and successor documents. Additional guidance regarding 
the System may be provided by the contracting officer. On an annual 
basis, the contractor shall review and update, for DOE approval, its 
safety performance objectives, performance measures, and commitments 
consistent with and in response to DOE's program and budget 
execution guidance and direction. Resources shall be identified and 
allocated to meet the safety objectives and performance commitments 
as well as maintain the integrity of the entire System. Accordingly, 
the System shall be integrated with the contractor's business 
processes for work planning, budgeting, authorization, execution, 
and change control.
    (f) The contractor shall promptly evaluate and resolve any 
noncompliance with applicable ES&H requirements and the System. If 
the contractor fails to provide resolution or if, at any time, the 
contractor's acts or failure to act causes substantial harm or an 
imminent danger to the environment or health and safety of employees 
or the public, the contracting officer may issue an order stopping 
work in whole or in part. Any stop work order issued under this 
clause (including a stop work order issued by the contractor to a 
subcontractor in accordance with paragraph (g) of this clause) shall 
be without prejudice to any other legal or contractual rights of the 
Government. Thereafter, an order authorizing the resumption of the 
work may be issued at the discretion of the contracting officer. The 
contractor shall not be entitled to an extension of time or 
additional fee or damages by reason of, or in connection with, any 
work stoppage ordered in accordance with this clause.
    (g) The contractor shall provide in its purchasing system, 
required under the clause of this contract entitled, Contractor 
Purchasing System, policies, practices, and procedures for the 
flowdown of requirements of this clause, as appropriate, to 
subcontract performance of work on-site at a DOE-owned or-leased 
facility. Such subcontracts shall require the submittal of a 
documented description of the subcontractor's Safety Management 
System to the contractor for review and approval. Dates for initial 
submittal, discussions, and revisions to the subcontractor's System 
will be established by the contractor. Guidance on the preparation, 
content, review, and approval of the subcontractor's System will be 
provided by the contractor. Such subcontracts shall provide for the 
right to stop work under the conditions described in paragraph (f) 
of this clause.
    (h) The contractor shall be responsible for compliance with the 
ES&H requirements applicable to this contract regardless of the 
performer of the work.
    (i) For the purposes of this clause, safety encompasses 
environment, safety and health, including pollution prevention and 
waste minimization.

[FR Doc. 96-26083 Filed 10-9-96; 8:45 am]
BILLING CODE 6450-01-P