Memorandums of Understanding - Table of Contents|
| Information Date:||11/06/1978|
| Agreement Agency:||The Department of the Army acting for the Department of Defense|
This memorandum is between the Department of Army (DA), as Single Manager Ammunition of the Department of Defense (DOD), and the Department of Labor (DOL).
2. SUBJECT AND SCOPE
Occupational safety and health at Government-owned, Contractor-operated (GOCO) Army ammunition plants. The term "ammunition plants" includes explosive plants.
To establish procedures for entry of DOL Occupational Safety and Health Administration (OSH) compliance officers to all areas of GOCO ammunition plants; to provide a working arrangement for the harmonious exercise of the parties' respective statutory authorities; and to establish procedures for mutual resolution of any conflicts.
4. RELEVANT STATUTES
a. Department of Army: 10 U.S.C. section 172(a) reads as follows:
"(a) The secretaries of the military departments, acting through a joint board of officers selected by them, shall keep informed on stored supplies of ammunition and components thereof for use of the Army, Navy, Air Force, and Marine Corps, with particular regard to keeping those supplies properly dispersed and stored and to preventing hazardous conditions from arising to endanger life and property inside or outside of storage reservations."
b. Department of Labor: The Occupational Safety and Health Act of 1970 declares it to be public policy "...to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources," 29 U.S.C. section 651(b). It also authorizes the Secretary of Labor to set mandatory occupational safety and health standards and to provide an effective enforcement program. Section 4(b)(1), however, provides that: "Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies...exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health," 29 U.S.C. section 653(b)(1).
5. DEPARTMENT OF ARMY EXERCISE OF STATUTORY AUTHORITY
The Department of the Army's authority in 10 U.S.C. section 172 dates from 1928, and DA has exercised such authority in regulating Army GOCO ammunition plants since their inception. This authority is principally reflected at this time in Department of Defense Directive 5154.4, subject: The DOD Explosive Safety Board (DDESB), Revised January 24, 1978. DODD 5154.4 defines responsibilities within DOD and establishes a comprehensive program to advise the Secretaries of the military departments on ammunition and explosives manufacturing, testing, handling, reworking, developing, disposal, transportation and storage, and on the siting of facilities. It provides, "This advice...shall be structured to prevent conditions which will endanger life and property...." The DDESB also is charged with issuing DOD-wide standards and regulations, maintaining liaison with other Government departments, allied governments and industrial organizations, determining compliance with standards, conducting investigations and inspections, and reviewing and approving the safety aspects of all general site plans for ammunition and explosive facilities. Regulations applicable to the subject of this MOU are currently reflected in DOD Manual 4145.26M, DOD Contractors' Safety Manual for Ammunition, Explosives and Related Dangerous Material, and DOD standard 5154.4s, DOD Ammunition and Explosives Safety Standards. These and subsidiary regulations (hereafter referred to as DOD or DA regulations) incorporate standards primarily relating to the hazards of ammunition and components thereof and may contain other standards for safety and health, in keeping with the Army's objective of protecting workers' welfare.
6. DEPARTMENT OF LABOR ACCESS
a. Subject to paragraph 6.b., OSHA compliance officers shall have access to all areas of Army GOCO ammunition plants.
b. Operations of a hazardous nature are conducted at GOCO plants within the areas defined by the DOD inhabited building explosive quantity distance tables (IHBD). While access of the OSHA compliance officer will not be withheld, delayed or restricted, the plant commander or his designee will require that the OSHA compliance officer be sufficiently briefed and may take other appropriate precautions so as not to endanger life, health or property, or disrupt the safety of plant operations, and the employment of such precautions shall not be deemed to be a withholding, delay or restriction of access. The Army and OSHA shall cooperate to arrange such advance briefings as will minimize delay. The OSHA compliance officer must have such security clearance as is required for access to classified areas or processes within the plant.
7. COMMUNICATION PROCEDURES
a. Following any inspection,
(i) The OSHA compliance officer, prior to departing the plant premises, shall notify the contractor and plant commander of any hazardous condition coming to his attention, whether or not considered to be in nonconformity with an OSHA standard;
(ii) The OSHA area director shall inform the contractor and plant commander of any intent to issue a citation and the substance of any alleged violation as it would appear in such citation;
(iii) Within two days after being so informed, the plant commander shall advise the OSHA area director of any claim by DOD or DA that (a) the working condition addressed by the proposed citation is one involving the jurisdiction of DOD or DA under 10 U.S.C. section 172 and 29 U.S.C. section 653(b)(1); or (b) the change required by the proposed citation would increase the likelihood of hazardous conditions arising in the context of the ammunition facility involved (the foregoing circumstance hereinafter referred to as "a greater danger").
b. In the event of a dispute as to whether a citation should properly issue in light of a claim specified in 7.a.(iii),
(i) DA and OSHA shall follow the procedures for resolution of disputes set forth in paragraph 8 hereof; and
(ii) OSHA shall defer issuance of a citation for a reasonable period (but not longer than the limit set forth in 29 U.S.C. section 658(c)) in order to permit employment of such procedures for resolution of dispute.
c. The provisions of paragraph 7.b.(ii) shall not require any deferral of enforcement with respect to any condition or practice constituting an imminent danger under 29 U.S.C. section 662
d. During any period required for the resolution of a dispute referred to in paragraph 7.b., above, OSHA and DA shall confer and cooperate to minimize hazards to worker health and safety in respect of the working conditions involved.
8. DISPUTE RESOLUTIONS
a. It is expected that any dispute (i) referred to in paragraph 7.b. or (ii) as to the operation of any provision of this memorandum of understanding will be resolved at the GOCO ammunition plant level in discussions between the plant commander and the OSHA area representative.
b. In the event of a failure to resolve such a dispute at the foregoing level, the representative of any party may, upon giving written notice to the other, submit the dispute to the Commanding General, Army Armament Material Readiness Command, and the OSHA Regional Administrator. An unresolved dispute referred to in paragraph 7.b. shall be so submitted upon the expiration of 15 days of receipt of the advice specified by paragraph 7.a.(iii).
c. In the event of a failure to resolve the dispute at the foregoing level within 15 days of receipt of the aforesaid written notice, the dispute may, upon giving written notice, be submitted for joint review by the Secretary of the Army and the Secretary of Labor.
d. The foregoing times may be lengthened or shortened by mutual agreement of the representatives at the level involved.
9. ENFORCEMENT INTENT
a. It is the understanding of the parties that no citation will be issued with respect to a working condition or practice (i) within the authority of and regulated by DOD or DA under 10 U.S.C. section 172, or (ii) if the change required to correct an apparent violation would create a greater danger.
b. For purposes of this agreement and without concession by either party as to the scope of its authority as a matter of law: (i) a working condition or practice shall be deemed to be within the authority of and regulated by DOD or DA under 10 U.S.C. section 172 if it is addressed by a DOD or DA standard relating to the hazards of ammunition or components thereof; and (ii) in light of paragraph 9.a., it is not anticipated that DOL will propose to issue a citation with respect to a working condition or practice that a DOD or DA authority has determined should not be the subject of such a standard, but should this appear to occur, the provisions of paragraph 7.b. and 8 shall apply.
10. COMPLIANCE RESPONSIBILITY
Responsibility for compliance with applicable OSHA standards and requirements rests with the contractor. The plants and equipment are, however, the property of the United States Government. If noncompliance is attributable to the Government-owned plant or equipment, the contractor will report such noncompliance to the Procuring Contracting Officer (PCO) who will pursue the options specified in Defense Procurement Circular 76-1 or other applicable procurement regulation. The Army will make reasonable efforts to assist the contractor to comply with OSHA requirements.
11. EXPLOSIVE ACCIDENTS
Accidents involving the explosion or discharge of ammunition or components thereof are of special interest and will be investigated in accordance with applicable DOD or DA regulations. Subject to paragraph 6.b., OSHA shall have access to all areas of a GOCO plant in order to determine whether any such accident involves a matter within its authority, and may investigate an accident involving such a matter according to its procedures. OSHA and the Army shall cooperate in order to avoid burden and duplication in the aftermath of such an accident, and to the extent feasible, OSHA shall conduct its inquiries by participating in or utilizing the DOD or DA investigation. Any such OSHA participation or any investigation by it will be coordinated with the President of the Army Board of Investigation and the Plant Commander. Access to investigate accidents not involving an explosion or discharge will be governed by the provisions of paragraph 6 hereof.
12. STATUTORY RESPONSIBILITY
Nothing in this memorandum shall diminish the statutory authority or responsibility of the Secretary of the Army or Secretary of Labor; and the provisions hereof have been drafted in conformity with such authority and responsibility. However, the provisions of this memorandum shall not be construed as affecting the legal rights or obligations of any private employer nor as constituting the interpretation of any law by the Secretary of the Army or Secretary of Labor.
13. EFFECTIVE DATE
This memorandum of understanding is effective immediately upon authorized signature by the parties.
If in the course of operations pursuant to this memorandum of understanding, either party finds its terms in need of modification, such party may notify the other of the nature of the desired changes. In that event the parties shall negotiate such amendment as may be desirable. Failing agreement on such amendment within 90 days of receipt of such notice, the Secretary of either department may terminate the memorandum of understanding.
WITNESS: SECRETARY OF LABOR
WITNESS: SECRETARY OF THE ARMY
DATE: November 6, 1978
Memorandums of Understanding - Table of Contents|