52138 Federal Register / Vol. 76, No. 161 / Friday, August 19, 2011 / Rules and Regulations 

■ 7. Revise section 252.244–7000 to 

read as follows: 

252.244–7000 Subcontracts for 

Commercial Items and Commercial 

Components (DoD Contracts). 

As prescribed in 244.403, use the 

following clause: 

SUBCONTRACTS FOR COMMERCIAL 

ITEMS AND COMMERCIAL COMPONENTS 

(DOD CONTRACTS) (AUG 2011) 

In addition to the clauses listed in 

paragraph (c) of the Subcontracts for 

Commercial Items clause of this contract 

(Federal Acquisition Regulation 52.244–6), 

the Contractor shall include the terms of the 

following clauses, if applicable, in 

subcontracts for commercial items or 

commercial components, awarded at any tier 

under this contract: 

(a) 252.225–7009 Restriction on 

Acquisition of Certain Articles Containing 

Specialty Metals (JAN 2011) (10 U.S.C. 

2533b). 

(b) 252.225–7039, Contractors Performing 

Private Security Functions (AUG 2011) 

(Section 862 of Pub. L. 110–181, as amended 

by section 853 of Pub. L. 110–417 and 

sections 831 and 832 of Pub. L. 111–383). 

(c) 252.236–7013 Requirement for 

Competition Opportunity for American Steel 

Producers, Fabricators, and Manufacturers 

(JAN 2009) (Pub. L. 110–329, Division E, 

Section 108). 

(d) 252.237–7010 Prohibition on 

Interrogation of Detainees by Contractor 

Personnel (NOV 2010) (Section 1038 of Pub. 

L. 111–84). 

(e) 252.237–7019 Training for Contractor 

Personnel Interacting with Detainees (SEP 

2006) (Section 1092 of Pub. L. 108–375). 

(f) 252.246–7003 Notification of Potential 

Safety Issues (JAN 2007). 

(g) 252.247–7023 Transportation of 

Supplies by Sea (MAY 2002) (10 U.S.C. 

2631). 

(h) 252.247–7024 Notification of 

Transportation of Supplies by Sea (MAR 

2000) (10 U.S.C. 2631). 

(End of clause) 

[FR Doc. 2011–20528 Filed 8–18–11; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 209 and 252 

RIN 0750–AG92 

Defense Federal Acquisition 

Regulation Supplement; Identification 

of Critical Safety Items (DFARS Case 

2010–D022) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is issuing a final rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to add a contract clause that 

clearly identifies any items being 

purchased that are critical safety items 

so that the proper risk-based 

surveillance can be performed. 

DATES: Effective Date: August 19, 2011. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Meredith Murphy, 703–602–1302. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD published a proposed rule at 76 

FR 14641 on March 17, 2011, to add a 

contract clause that clearly identifies 

any items being purchased that are 

critical safety items so that the proper 

risk-based surveillance can be 

performed. One public comment was 

received in response to the proposed 

rule. 

II. Discussion and Analysis of the 

Public Comment 

Comment: The respondent noted that 

the DFARS case specifically addresses 

aviation and ship critical safety items, 

but states that protective personal 

equipment, such as body armor and 

helmets, can also have catastrophic 

results if they fail. The respondent 

asked how DoD ensures that contract 

administration activities apply 

increased surveillance procedures in 

these types of contracts. 

Response: The additional risk-based 

surveillance required for aviation and 

ship critical safety items is mandated by 

law (section 802 of the National Defense 

Authorization Act for Fiscal Year 2004 

and section 130 of the National Defense 

Authorization Act for Fiscal Year 2007). 

There is no equivalent statutory 

requirement for protective personal 

equipment, and instituting such a 

requirement is outside the scope of this 

case. However, the respondent’s 

comment has been forwarded to the 

Defense Contract Management Agency 

for future consideration. 

The respondent also asked about the 

process that ensures that contract 

administration activities apply 

increased surveillance procedures when 

aviation and ship critical safety items 

have been identified. The process was 

summarized in the preamble to the 

proposed rule published at 76 FR 14642 

on March 17, 2011. Briefly, the 

combination of the actions of the design 

control activities, joint agency 

instructions (e.g., Management of 

Aviation Critical Safety Items), 

limitations on contracting with sources 

that have not been approved by the 

design control activity, and focus on 

contract administration will ensure the 

proper surveillance for these critical 

items. 

The respondent did not recommend 

changes to the DFARS text or clause, 

and the final rule does not revise the 

DFARS text or clause from that 

published in the proposed rule. 

II. 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 a significant 

regulatory action and, therefore, was 

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 

The Department of Defense certifies 

that this final rule will not have a 

significant economic impact on a 

substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act, 5 U.S.C. 601, et seq. Its 

purpose is internal to the Government 

only by alerting Government qualityassurance activities to existing 

heightened surveillance requirements 

that are imposed by DoD requiring 

activities. The process for identifying an 

item as a critical safety item occurs 

entirely outside the acquisition process, 

as does the process of approving a 

source for production of a critical safety 

item. No comments from small entities 

were received in response to publication 

of the proposed rule. 

V. Paperwork Reduction Act 

The rule does not contain any 

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). 

List of Subjects in 48 CFR Parts 209 and 

252 

Government procurement. 

Ynette R. Shelkin, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, 48 CFR parts 209 and 252 

are amended as follows: 


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Federal Register / Vol. 76, No. 161 / Friday, August 19, 2011 / Rules and Regulations 52139 

■ 1. The authority citation for 48 CFR 

parts 209 and 252 continues to read as 

follows: 

Authority: 41 U.S.C. 1303 and 48 CFR 

chapter 1. 

PART 209—CONTRACTOR 

QUALIFICATIONS 

■ 2. Add section 209.270–5 to read as 

follows: 

209.270–5 Contract clause. 

The contracting officer shall insert the 

clause at 252.209–7010, Critical Safety 

Items, in solicitations and contracts 

when the acquisition includes one or 

more items designated by the design 

control activity as critical safety items. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 3. Add section 252.209–7010 to read 

as follows: 

252.209–7010 Critical Safety Items. 

As prescribed in 209.270–5, use the 

following clause: 

CRITICAL SAFETY ITEMS (AUG 2011) 

(a) Definitions. 

Aviation critical safety item means a part, 

an assembly, installation equipment, launch 

equipment, recovery equipment, or support 

equipment for an aircraft or aviation weapon 

system if the part, assembly, or equipment 

contains a characteristic any failure, 

malfunction, or absence of which could 

cause— 

(i) A catastrophic or critical failure 

resulting in the loss of, or serious damage to, 

the aircraft or weapon system; 

(ii) An unacceptable risk of personal injury 

or loss of life; or 

(iii) An uncommanded engine shutdown 

that jeopardizes safety. 

Design control activity. (i) With respect to 

an aviation critical safety item, means the 

systems command of a military department 

that is specifically responsible for ensuring 

the airworthiness of an aviation system or 

equipment, in which an aviation critical 

safety item is to be used; and 

(ii) With respect to a ship critical safety 

item, means the systems command of a 

military department that is specifically 

responsible for ensuring the seaworthiness of 

a ship or ship equipment, in which a ship 

critical safety item is to be used. 

Ship critical safety item means any ship 

part, assembly, or support equipment 

containing a characteristic, the failure, 

malfunction, or absence of which could 

cause— 

(i) A catastrophic or critical failure 

resulting in loss of, or serious damage to, the 

ship; or 

(ii) An unacceptable risk of personal injury 

or loss of life. 

(b) Identification of critical safety items. 

One or more of the items being procured 

under this contract is an aviation or ship 

critical safety item. The following items have 

been designated aviation critical safety items 

or ship critical safety items by the designated 

design control activity: 

lllllllllllllllllllll

lllllllllllllllllllll

lllllllllllllllllllll

lllllllllllllllllllll

(Insert additional lines as necessary) 

(c) Heightened quality assurance 

surveillance. Items designated in paragraph 

(b) of this clause are subject to heightened, 

risk-based surveillance by the designated 

quality assurance representative. 

(End of clause) 

[FR Doc. 2011–20529 Filed 8–18–11; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 201, 245, and 252 

RIN Number 0750–AG38 

Defense Federal Acquisition 

Regulation Supplement; Government; 

Property (DFARS Case 2009–D008) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is issuing a final rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) regarding Government 

Property, to reflect the recent revisions 

to Government Property elsewhere in 

the Code of Federal Regulations. 

DATES: Effective Date: August 19, 2011. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Meredith Murphy, 703–602–1302. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD is revising subparts 245.6 and 

245.7 to be consistent with the changes 

to FAR subparts 45.6 and 45.7, 

published in the Federal Register at 72 

FR 27364 on May 15, 2007. A proposed 

DFARS rule was published in the 

Federal Register at 75 FR 75444 on 

December 3, 2010. The public comment 

period for the proposed rule closed 

February 1, 2011. Comments were 

received from three respondents. A 

discussion and analysis of the 

comments is provided in section II of 

this notice. Any revisions to the final 

rule based on public comments are 

addressed in the DoD responses to the 

comments received. 

II. Discussion and Analysis 

Comments received in response to the 

proposed rule are organized into six 

categories and are discussed in the 

paragraphs that follow. 

A. Clarifying Responsibilities 

Comment: A respondent 

recommended that ‘‘* * * or the head 

of the contract administration office’’ be 

added to DFARS 201.670(a). 

DoD response: DFARS 201.670(a) has 

been revised to specify that the 

appropriate agency authority may 

delegate contract administration 

functions to the cognizant contract 

administration office, in which case the 

contract administration office appoints 

the property administrators and plant 

clearance officers in writing. This 

language was formerly found at DFARS 

245.70. 

Comment: A respondent 

recommended that DFARS 252.245– 

70XX(i) be revised to make the 

contractor’s responsibility for 

compliance with export control law and 

regulations a ‘‘due diligence 

responsibility.’’ 

DoD Response: In the context of 

surplus sales, it is the buyer’s 

responsibility to adhere to export 

control laws and regulations. Therefore, 

the referenced paragraph has been 

deleted and a new paragraph (g) has 

been inserted to specify that disposition 

shall be in accordance with foreign and 

U.S. laws and regulations, including 

regulations involving export controls, 

host nation requirements, Final 

Governing Standards, and Governmentto-Government agreements, and that the 

contractor’s responsibility to comply 

with all applicable laws and regulations 

regarding export-controlled items exists 

independent of the information 

provided by the clause. The new 

language is consistent with the 

respondent’s recommendation and 

current DFARS language at 252.204– 

7008. 

B. Inventory Schedules 

Comment: A respondent stated that 

the requirement at DFARS 245.602–1 for 

‘‘obtaining bills of material and 

reviewing recent purchases, and stock 

record entries’’ is not a part of the 

disposal process. The respondent 

commented that these duties require the 

plant clearance officer to have a working 

knowledge of every contract and that 

the process will drive up costs. 

DoD Response: The proposed 

language at 245.602–1 exists today in 

the current DFARS at 245.7201. The 

proposed rule moved 245.7201 to 

subpart 245.6, and renamed the subpart 

Reporting, Reutilization, and Disposal, 

to conform with the FAR; however, the 

language at DFARS 245.602–1 has been 


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