[Federal Register Volume 80, Number 227 (Wednesday, November 25, 2015)]
[Rules and Regulations]
[Pages 73675-73677]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-29947]


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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: Final rule.

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SUMMARY: NASA is issuing a final rule to amend the NASA FAR Supplement 
(NFS) to revise a clause related to safety and health measures and 
mishaps reporting, reduce burden on contractors, and to provide 
guidance on specific safety and health measures that 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 revision is part of NASA's retrospective plan under 
Executive Order (EO) 13563 completed in August 2011.

DATES: Effective: December 28, 2015.

FOR FURTHER INFORMATION CONTACT: Marilyn E. Chambers, NASA, Office of 
Procurement, telephone 202.358.5154.

SUPPLEMENTARY INFORMATION: 

I. Background

    NASA published a proposed rule in the Federal Register at 80 FR 
48284 on August 12, 2015, to revise both the prescription for and text 
of the clause at 1852.223-70, which was retitled from ``Safety and 
Health'' to ``Safety and Health Measures and Mishap Reporting'' to 
emphasize the purpose of the clause--requiring contractors working at 
Federal facilities to have measures in place to protect the safety of 
their workers, other individuals

[[Page 73676]]

working at the facility, and the public. To reduce the burden on 
contractors, the clause prescription was 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 was also revised to apply 
to subcontracts above the simplified acquisition threshold where 
performance is at a Federal facility.
    Paragraph (b) of the clause lists safety and occupational health 
measures, recognized by the Office of Safety and Health Administration 
and industry, as standards for both identifying workplace hazards and 
for developing a plan for prevention and control of those hazards. 
These measures include maintaining 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 
the 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. Additionally, 
paragraph (b) added text 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) refers 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. Paragraph (e) requires contractors to cooperate 
with any Government-authorized investigation by providing access to 
their employees and relevant information in their possession regarding 
the mishap or close call. Paragraph (f) states the Contracting Officer 
may notify the Contractor of any noncompliance with the health and 
safety requirements of the contract and require corrective action. If 
the contractor fails or refuses to take prompt corrective action, the 
Contracting Officer may--
    (1) Invoke the stop-work order clause;
    (2) Require the Contractor to remove and replace Contractor or 
subcontractor personnel who fail to comply with or violate applicable 
requirements;
    (3) Record the Contractor's failure to comply in the appropriate 
databases of past performance; and
    (4) Consider the Contractor's failure to comply in any 
responsibility determination or evaluation of past performance.
    Paragraph (g) requires the prime contractor to include the clause 
in subcontracts over the simplified acquisition threshold when the work 
will be conducted completely or partly on federally-controlled 
facilities.

II. Discussion and Analysis

    No public comments were received in response to the proposed rule. 
However, during internal deliberations a couple of minor changes were 
made. Section 1801.106(1) was revised to add new OMB control number 
2700-1060, which was assigned for reporting requirements at NFS 
1852.223-70. Additionally, paragraph (f)(1) of 1852.223-70 was revised 
to change the phrase ``the Contracting Officer shall'' to ``the 
Contracting Officer will'' and to remove the term ``any necessary.'' 
Paragraph (f) (2) was revised to remove ``in addition to other remedies 
available to the Government'' and add ``the contracting officer may'' 
with a list of four actions, previously listed in the proposed rule, 
enumerated and rephrased to clearly list the action to be taken: 
``invoke,'' ``require,'' ``record,'' and ``consider.'' No other 
revisions were made to the proposed rule.

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 rule is not a major rule 
under 5 U.S.C. 804.

IV. Regulatory Flexibility Act

    NASA has prepared a Final Regulatory Flexibility Analysis (FRFA) 
consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et se., 
and is summarized as follows:
    This rule revises NFS clause 1852.223-70 to reduce burden on 
contractors by (1) changing the applicability of the 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 clause also provides guidance on specific 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.
    No comments were received on the initial regulatory flexibility 
analysis from small business concerns or other interested parties.
    This rule will apply to small entities performing NASA contracts 
with an estimated value over the simplified acquisition threshold on 
Federal Facilities. The System for Award Management (SAM) data shows 
approximately 154 firms received contracts to which this clause will 
apply. Of those 154 firms, 84 were small businesses.
    Two reporting requirements are contained in the rule. 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 by 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 revisions to NFS clause 1852.223-70 are 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 alternatives or reporting requirements or 
timetables for small entities are not feasible. Having an effective 
safety program is crucial to all businesses as it

[[Page 73677]]

reduces injuries, lost time, property damage and creates a more safe 
and effective workplace for employees.

V. Paperwork Reduction Act

    The rule contains information collection requirements that require 
the approval of the Office of Management and Budget under the Paperwork 
Reduction Act (44 U.S.C. chapter 35). OMB has cleared this information 
collection requirement under OMB Control Number 2700-0160, titled: 
Safety and Health Measures and Mishap Reporting.

List of Subjects in 48 CFR 1801, 1823, and 1852

    Government procurement.

Manuel Quinones,
NASA FAR Supplement Manager.

    Accordingly, 48 CFR parts 1801, 1823 and 1852 are amended as 
follows:

PART 1801--FEDERAL ACQUISITION REGULATIONS SYSTEM

0
1. The authority citation for part 1801 is revised to read as follows:

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


0
2. Section 1801.106 is revised to read as follows:


801.106   OMB approval under the Paperwork Reduction Act.

    (1) NFS requirements. The following OMB control numbers apply:

------------------------------------------------------------------------
                                                            OMB Control
                       NFS Segment                              No.
------------------------------------------------------------------------
1823....................................................       2700-0089
1852.223-70.............................................       2700-0160
1827....................................................       2700-0052
1843....................................................       2700-0054
NF 533..................................................       2700-0003
NF 1018.................................................       2700-0017
------------------------------------------------------------------------

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

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

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


0
4. Amend section 1823.7001 by revising paragraphs (a) and (b) 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.
* * * * *

PART 1852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

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

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


1852.2   [Amended]

0
6. Amend subpart 1852.2 by removing ``1852.223-70 Safety and health'' 
and adding ``1852.223-70 Safety and Health Measures and Mishap 
Reporting'' in its place.
0
7. Revise section 1852.223-70 to read as follows:


1852.223-70   Safety and Health Measures and Mishap Reporting.

    As prescribed in 1823.7001(a), insert the following clause:

    SAFETY AND HEALTH MEASURES AND MISHAP REPORTING (DEC 2015)
    (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 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 as 
specified in the contract Schedule.
    (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 of any 
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 will 
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 in accordance with subparagraph (f)(1) of this 
clause, the Contracting Officer may--
    (i) Invoke the stop-work order clause in this contract;
    (ii) Require the Contractor to remove and replace Contractor or 
subcontractor personnel who fail to comply with or violate 
applicable requirements of this clause;
    (iii) Record the Contractor's failure to comply in the 
appropriate databases of past performance; and
    (iv) Consider the Contractor's failure to comply 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. 2015-29947 Filed 11-24-15; 8:45 am]
 BILLING CODE 7510-13-P