[Federal Register Volume 82, Number 237 (Tuesday, December 12, 2017)]
[Rules and Regulations]
[Pages 58351-58354]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-26711]


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DEPARTMENT OF STATE

48 CFR Parts 636, 637, and 652

[Public Notice 9703]
RIN 1400-AE04


Department of State Acquisition Regulation

AGENCY: Department of State.

ACTION: Interim final rule.

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SUMMARY: The Department of State (DOS) is amending the Department of 
State Acquisition Regulation (DOSAR) to provide new guidance 
prescribing more stringent safety requirements for certain overseas 
construction and services projects.

DATES: Effective Date: This interim rule is effective on January 11, 
2018.
    Comment Date: The Department of State will accept comments on this 
interim rule until February 12, 2018.

ADDRESSES: You may submit comments by any of the following methods:
     Email: [email protected]. You must include the RIN 1400-
AE04 in the subject line of your message.
     Mail (paper only): Ms. Colleen Kosar, Policy Division, 
Office of the Procurement Executive, A/OPE, 2201 C Street NW, Suite 
1060, State Annex Number 15, Washington, DC 20520.
     Persons with access to the internet may view this interim 
rule and submit comments by visiting: http://www.regulations.gov, and 
searching for docket number DOS-2017-0007.

FOR FURTHER INFORMATION CONTACT: Ms. Colleen Kosar, Policy Division, 
Office of the Procurement Executive, A/OPE, 2201 C Street NW, Suite 
1060, State Annex Number 15, Washington, DC 20520. Telephone 703-516-
1685.

SUPPLEMENTARY INFORMATION: The purpose of this interim rule is to 
update 48 CFR part 636, section 636.513, Accident Prevention; 48 CFR 
part 637; and 48 CFR part 652, section 652.236-70, Accident Prevention. 
The Department of State (DOS) is rescinding the class deviation that 
authorized the substitution of DOSAR 652.236-70, Accident Prevention, 
for FAR 52.236-13 Accident Prevention, thus reinstating the requirement 
for use of FAR 52.236-13. Additionally, a new clause, ``Additional 
Safety Measures,'' is added to replace DOSAR 652.236-70. Specifically, 
the interim rule:
     Amends section 636.513 to reinstate the use of FAR 52.236-
13, Accident Prevention, together with its Alternate I, and to 
prescribe the use of DOSAR clause 652.236-70, Additional Safety 
Measures.
     Amends part 637, to add a new section 637.102-71 to 
provide a cross-reference to 636.513 for services contracts.
     Amend section 652.236-70 to replace the current clause 
(``Accident Prevention'') with a new clause (``Additional Safety 
Measures'').

The Department has determined to issue an interim final rule due to the 
overriding importance of the safety of individuals associated with 
overseas DOS construction and services projects.

Regulatory Findings

Administrative Procedure Act

    In accordance with 5 U.S.C. 553(a)(2), which exempts from the 
Administrative Procedure Act matters relating to contracts, the 
Department is publishing this rulemaking as an interim final rule, but 
is inviting public comment.

Regulatory Flexibility Act

    This rulemaking is not a ``rule'' as defined by the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.; therefore, that Act does not 
apply to it. However, the Department of State has reviewed this 
regulation and, by approving it, certifies that it will not have a 
significant economic impact on a substantial

[[Page 58352]]

number of small entities. This determination was based on the fact that 
few of the DOS overseas construction contracts are performed by small 
business concerns. In FY 2015, only 19 of the 161 DOS overseas 
construction contractors to which this would apply were small business 
concerns.

Unfunded Mandates Act of 1995

    This interim rule will not result in the expenditure by State, 
local, and tribal governments, in the aggregate, or by the private 
sector, of $100 million or more in any year and it will not 
significantly or uniquely affect small governments. Therefore, no 
actions were deemed necessary under the provisions of the Unfunded 
Mandates Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by the Small Business 
Regulatory Enforcement Act of 1996 (5 U.S.C. 801 et seq.). This rule 
will not result in an annual effect on the economy of $100 million or 
more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based companies to 
compete with foreign-based companies in domestic and import markets.

Executive Orders 12866, 13563 and 13771

    Executive Orders (E.O.) 12866 and 13563 direct agencies to assess 
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. The 
Department of State does not consider this interim rule to be an 
``economically significant regulatory action'' under Executive Order 
12866.
    The Department has reviewed the regulation to ensure its 
consistency with the regulatory philosophy and principles set forth in 
the Executive Orders and finds that the benefits of this rule outweigh 
any costs, which the Department assesses to be minimal. This interim 
final rule is not subject to the requirements of Executive Order 13771 
because this final rule has been determined to be non-significant 
within the meaning of the Executive Order 12866.

Executive Order 13132

    This interim rule will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with section 6 
of Executive Order 13132, it is determined that this interim rule does 
not have sufficient federalism implications to require consultations or 
warrant the preparation of a federalism summary impact statement.

Executive Order 13175

    The Department has determined that this interim rulemaking will not 
have tribal implications, will not impose substantial direct compliance 
costs on Indian tribal governments, and will not pre-empt tribal law. 
Accordingly, the requirements of Executive Order 13175 do not apply to 
this interim rulemaking.

Paperwork Reduction Act

    The interim rule removes a data collection requirement from 
Department of State Acquisition Regulation (DOSAR) information 
collection under OMB Control Number 1405-0050. The data collection 
requirement removed is DOSAR 652.236-70, Accident Prevention, which 
requires construction contractors to submit a written accident 
prevention plan. The removal of this requirement will reduce the total 
burden hours of this information collection under the Paperwork 
Reduction Act of 1995 (44 U.S.C. Chapter 35) by 150 hours.
    This information collection renewal was approved by OMB on February 
23, 2016. The removal of the data collection will not affect any other 
data collection requirements within this information collection.
    60-Day Notice of Proposed Information Collection: Department of 
State Acquisition Regulation (DOSAR).
    The Department of State is seeking Office of Management and Budget 
(OMB) approval for the information collection described below. In 
accordance with the Paperwork Reduction Act of 1995, we are requesting 
comments on this collection from all interested individuals and 
organizations. The purpose of this document is to allow 60 days for 
public comment preceding submission of the collection to OMB.
    Submit comments to the Office of Management and Budget (OMB) and 
Department of State, Office of the Procurement Executive, up to 
February 12, 2018.
    Direct comments to the Department of State Desk Officer in the 
Office of Information and Regulatory Affairs at the Office of 
Management and Budget (OMB). You may submit comments by the following 
methods:
     Email: [email protected]. You must include the 
information collection title and the OMB control number in the subject 
line of your message.
     Fax: 202-395-5806. Attention: Desk Officer for Department 
of State. In addition, please direct a copy of your comments to the 
Department of State, Office of the Procurement Executive. You may 
submit comments by the following methods:
     Email: [email protected]
     Regular Mail: Ms. Colleen Kosar, Policy Division, Office 
of the Procurement Executive, A/OPE, 2201 C Street NW, Suite 1060, 
State Annex Number 15, Washington, DC 20520.

You must include the information collection title and the OMB control 
number in any correspondence.
    Direct requests for additional information regarding the collection 
listed in this document, including requests for copies of the proposed 
collection instrument and supporting documents, to Ms. Colleen Kosar, 
U.S. Department of State, Office of the Procurement Executive, 2201 C 
Street NW, Suite 1060, State Annex Number 15, Washington, DC 20520; who 
may be reached on (703) 516-1685.
     Title of Information Collection: Department of State 
Acquisition Regulation (DOSAR).
     OMB Control Number: 1405-0050.
     Type of Request: Extension of a Currently Approved 
Collection.
     Originating Office: Bureau of Administration, Office of 
the Procurement Executive (A/OPE).
     Form Number: No Form.
     Respondents: Any business, other for-profit, individual, 
not-for-profit, or household.
     Estimated Number of Respondents: 1647.
     Estimated Number of Responses: 2600.
     Average Time per Response: 98 hours.
     Total Estimated Burden Time: 253,764 hours.
     Frequency: On Occasion.
     Obligation to Respond: Required.
    We are soliciting public comments to permit the Department to:
     Evaluate whether the proposed information collection is 
necessary for the proper functions of the Department.
     Evaluate the accuracy of our estimate of the time and cost 
burden for

[[Page 58353]]

this proposed collection, including the validity of the methodology and 
assumptions used.
     Enhance the quality, utility, and clarity of the 
information to be collected.
     Minimize the reporting burden on those who are to respond, 
including the use of automated collection techniques or other forms of 
information technology.
    Please note that comments submitted in response to this Notice are 
public record. Before including any detailed personal information, you 
should be aware that your comments as submitted, including your 
personal information, will be available for public review.
    Abstract of proposed collection: This information collection covers 
pre-award and post-award requirements of the DOSAR. During the pre-
award phase, information is collected to determine which proposals 
offer the best value to the U.S. Government. Post-award actions include 
monitoring the contractor's performance; issuing modifications to the 
contract; dealing with unsatisfactory performance; and closing out the 
contract upon its completion. This program collects information 
pursuant to the Foreign Service Buildings Act of 1926, as amended (22 
U.S.C. 302), the Omnibus Diplomatic Security and Antiterrorism Act (22 
U.S.C. 4852), and the Foreign Relations Authorization Act, Fiscal Years 
1990 and 1991 (22 U.S.C. 4864).
    Methodology: Information is collected from prospective offerors to 
evaluate their proposals. The responses provided by the public are part 
of the offeror's proposals in response to Department solicitations. 
This information may be submitted electronically (through fax or 
email), or may require a paper submission, depending upon complexity. 
After contract award, contractors are required to submit information, 
on an as-needed basis, and related to the occurrence of specific 
circumstances.

List of Subjects in 48 CFR Parts 636, 637 and 652

    Government procurement.

    For the reasons stated in the preamble, the Department of State 
amends 48 CFR chapter 6 as follows:

0
1. The authority citation for 48 CFR parts 636, 637 and 652 continues 
to read as follows:

    Authority:  22 U.S.C. 2651a, 40 U.S.C. 121(c) and 48 CFR chapter 
1.

PART 636--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

0
2. Section 636.513 is revised to read as follows:


636.513   Accident prevention.

    (a) The contracting officer shall insert the clause at 652.236-70, 
Additional Safety Measures in all solicitations and contracts that 
include FAR 52.236-13, Accident Prevention, Alternate I, i.e.:
    (1) When a fixed-price construction contract or a fixed-price 
dismantling, demolition, or removal of improvements contract is 
contemplated and the contract amount is expected to exceed the 
simplified acquisition threshold and the contract will involve work of 
a long duration or hazardous nature; or
    (2) When a contract for services to be performed at Government 
facilities (see FAR part 37) is contemplated, and technical 
representatives advise that special precautions are appropriate, such 
as contracts for building maintenance, building operations or 
infrastructure repair.
    (b) The contracting officer shall confer with OBO/OM/SHEM if there 
are any questions on any factors listed in paragraph (a) of the clause, 
or if the contracting officer has any questions regarding safety 
issues.

PART 637--SERVICE CONTRACTING

0
3. Section 637.102-71 is added to read as follows:


637.102-71   Safety considerations.

    When contracting for services to be performed overseas, always 
consider 636.513(b) and FAR 36.513(b), and consult with technical 
representatives to determine whether special precautions are 
appropriate, such as when the services are for building operations, 
building maintenance or infrastructure repairs.

PART 652--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
4. Section 652.236-70 is revised to read as follows:


652.236-70   Additional Safety Measures.

    As prescribed in 636.513, insert the following clause.
ADDITIONAL SAFETY MEASURES (OCT 2017)
    In addition to the safety/accident prevention requirements of FAR 
52.236-13, Accident Prevention Alternate I, the contractor shall comply 
with the following additional safety measures.
    (a) High risk activities. If the project contains any of the 
following high risk activities, the contractor shall follow the section 
in the latest edition, as of the date of the solicitation, of the U.S. 
Army Corps of Engineers Safety and Health manual, EM 385-1-1, that 
corresponds to the high risk activity. Before work may proceed, the 
contractor must obtain approval from the COR of the written safety plan 
required by FAR 52.236-13, Accident Prevention Alternate I (see 
paragraph (f) of this clause), containing specific hazard mitigation 
and control techniques.
    (1) Scaffolding;
    (2) Work at heights above 1.8 meters;
    (3) Trenching or other excavation greater than one (1) meter in 
depth;
    (4) Earth-moving equipment and other large vehicles;
    (5) Cranes and rigging;
    (6) Welding or cutting and other hot work;
    (7) Partial or total demolition of a structure;
    (8) Temporary wiring, use of portable electric tools, or other 
recognized electrical hazards. Temporary wiring and portable electric 
tools require the use of a ground fault circuit interrupter (GFCI) in 
the affected circuits; other electrical hazards may also require the 
use of a GFCI;
    (9) Work in confined spaces (limited exits, potential for oxygen 
less than 19.5 percent or combustible atmosphere, potential for solid 
or liquid engulfment, or other hazards considered to be immediately 
dangerous to life or health such as water tanks, transformer vaults, 
sewers, cisterns, etc.);
    (10) Hazardous materials--a material with a physical or health 
hazard including but not limited to, flammable, explosive, corrosive, 
toxic, reactive or unstable, or any operations, which creates any kind 
of contamination inside an occupied building such as dust from 
demolition activities, paints, solvents, etc.; or
    (11) Hazardous noise levels as required in EM 385-1 Section 5B or 
local standards if more restrictive.
    (b) Safety and health requirements. The contractor and all 
subcontractors shall comply with the latest edition of the U.S. Army 
Corps of Engineers Safety and Health manual EM 385-1-1, or OSHA 29 CFR 
part 1910 or 1926 if no EM 385-1-1 requirements are applicable, and the 
accepted contractor's written safety program.
    (c) Mishap reporting. The contractor is required to report 
immediately all mishaps to the COR and the contracting officer. A 
``mishap'' is any event causing injury, disease or illness, death, 
material loss or property damage, or incident

[[Page 58354]]

causing environmental contamination. The mishap reporting requirement 
shall include fires, explosions, hazardous materials contamination, and 
other similar incidents that may threaten people, property, and 
equipment.
    (d) Records. The contractor shall maintain an accurate record on 
all mishaps incident to work performed under this contract resulting in 
death, traumatic injury, occupational disease, or damage to or theft of 
property, materials, supplies, or equipment. The contractor shall 
report this data in the manner prescribed by the contracting officer.
    (e) Subcontracts. The contractor shall insert this clause, 
including this paragraph (e), with appropriate changes in the 
designation of the parties, in subcontracts.
    (f) Written program. The plan required by paragraph (f)(1) of the 
clause entitled ``Accident Prevention Alternate I'' shall be known as 
the Site Safety and Health Plan (SSHP) and shall address any activities 
listed in paragraph (a) of this clause, or as otherwise required by the 
contracting officer/COR.
    (1) The SSHP shall be submitted at least 10 working days prior to 
commencing any activity at the site.
    (2) The plan must address developing activity hazard analyses 
(AHAs) for specific tasks. The AHAs shall define the activities being 
performed and identify the work sequences, the specific anticipated 
hazards, site conditions, equipment, materials, and the control 
measures to be implemented to eliminate or reduce each hazard to an 
acceptable level of risk. Work shall not begin until the AHA for the 
work activity has been accepted by the COR and discussed with all 
engaged in the activity, including the Contractor, subcontractor(s), 
and Government on-site representatives.
    (3) The names of the Competent/Qualified Person(s) required for a 
particular activity (for example, excavations, scaffolding, fall 
protection, other activities as specified by EM 385-1-1) shall be 
identified and included in the AHA. Proof of their competency/
qualification shall be submitted to the contracting officer or COR for 
acceptance prior to the start of that work activity. The AHA shall be 
reviewed and modified as necessary to address changing site conditions, 
operations, or change of competent/qualified person(s).


(End of clause)

Eric N. Moore,
Procurement Executive (Acting), Department of State.
[FR Doc. 2017-26711 Filed 12-11-17; 8:45 am]
 BILLING CODE 4710-24-P