Acquisition Regulation; Department of Energy Management and Operating Contracts

tive 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

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

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.

umbers 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:

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:

ccomplishment 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).

nd/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.

st 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.

d 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

his 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