```

[Federal Register Volume 76, Number 52 (Thursday, March 17, 2011)]
[Proposed Rules]
[Pages 14641-14643]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-6231]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 209 and 252

Defense Federal Acquisition Regulation Supplement; Identification 
of Critical Safety Items (DFARS Case 2010-D022)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: DoD is proposing to amend 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: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before May 16, 2011, to be considered in 
the formation of the final rule.

ADDRESSES: Submit comments identified by DFARS Case 2010-D022, using 
any of the following methods:
    [cir] Regulations.gov: http://www.regulations.gov.
    Submit comments via the Federal eRulemaking portal by inputting 
``DFARS Case 2010-D022'' under the heading ``Enter keyword or ID'' and 
selecting ``Search.'' Select the link ``Submit a Comment'' that 
corresponds with ``DFARS Case 2010-D022.'' Follow the instructions 
provided at the ``Submit a Comment'' screen. Please include your name, 
company name (if any), and ``DFARS Case 2010-D022'' on your attached 
document.
    [cir] E-mail: dfars@osd.mil. Include DFARS Case 2010-D022 in the 
subject line of the message.
    [cir] Fax: 703-602-0350.
    [cir] Mail: Defense Acquisition Regulations System, Attn: Meredith 
Murphy, OUSD(AT&L)DPAP(DARS), Room 3B855, 3060 Defense Pentagon, 
Washington, DC 20301-3060.
    Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To 
confirm receipt of your comment(s), please check http://www.regulations.gov approximately two to three days after submission to 
verify posting (except allow 30 days for posting of comments submitted 
by mail).

FOR FURTHER INFORMATION CONTACT: Meredith Murphy, Defense Acquisition 
Regulations System, OUSD (AT&L) DPAP (DARS), Room 3B855, 3060 Defense 
Pentagon, Washington, DC 20301-3060. Telephone 703-602-1302; facsimile 
703-602-0350.

SUPPLEMENTARY INFORMATION:

I. Background

    This DFARS case was initiated at the request of the Defense 
Contract Management Agency so that when DoD requiring activities 
identify procurements involving critical safety items, the buying 
activities will include a clause in the solicitation and resulting 
contract that identifies specific items in the procurement that are 
critical safety items.
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136), section 802, entitled ``Quality Control in Procurement of 
Aviation Critical Safety Items and Related

[[Page 14642]]

Services,'' defined ``aviation critical safety item'' to mean a part, 
assembly, installation equipment, launch equipment, recovery equipment, 
or support equipment for an aircraft or aviation weapon system which, 
if it failed, could cause catastrophic damage, unacceptable risk of 
personal injury, or loss of life. Implementing regulations established 
processes for designated design control activities to identify aviation 
critical safety items. Similar definitions and requirements have been 
applied to ship critical safety items to implement section 130 of the 
National Defense Authorization Act for Fiscal Year 2007. When design 
control activities identify such items to the contracting activity, the 
latter will contract only with sources approved by the design control 
activity for the procurement, modification, repair, or overhaul of 
critical safety items. Using the clause in this proposed rule will 
enable contract administration activities to identify and apply 
additional risk-based surveillance to comply with joint agency 
instructions, such as Management of Aviation Critical Safety Items 
(dated January 25, 2006).
    DoD is proposing to amend DFARS subpart 209.2, Qualifications 
Requirements, to add a new contract clause. Specifically, DoD proposes 
to add a clause prescription at DFARS 209.270-5, Contract clause, and a 
new clause at 252.209-700X, Critical Safety Items. The requirement to 
identify critical safety items, procure such items only from sources 
designated by the design control activity, and apply enhanced risk-
based surveillance has been in effect for a number of years. However, 
there was no single DoD-wide means of complying with this requirement.

II. Executive Order 12866

    This is a significant regulatory action and, therefore, was subject 
to review under Executive Order 12866, Regulatory Planning and Review, 
dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 
804.

III. Executive Order 13563

    In accordance with Executive Order 13563, Improving Regulation and 
Regulatory Review, dated January 18, 2011, DoD has determined that this 
rule is not excessively burdensome to the public. It is consistent with 
the intent of the National Defense Authorization Acts for Fiscal Years 
2004 and 2007 and joint agency instructions, such as Management of 
Aviation Critical Safety Items (dated January 25, 2006), to identify 
and apply additional risk-based surveillance to items identified as 
critical safety items.

IV. Regulatory Flexibility Act

    DoD does not expect this rule to 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., because the rule 
does not impose new requirements on small entities. Its purpose is to 
alert Government quality-assurance 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 procurement process, as does the process of 
approving a source for production of a critical safety item. Therefore, 
an initial regulatory flexibility analysis has not been prepared.
    DoD invites comments from small business concerns and other 
interested parties on the expected impact of this rule on small 
entities.
    DoD will also consider comments from small entities concerning the 
existing regulations in subparts affected by this rule in accordance 
with 5 U.S.C. 610. Interested parties must submit such comments 
separately and should cite 5 U.S.C. 610 (DFARS Case 2010-D022) in 
correspondence.

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 proposed to be amended as 
follows:

    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 252.209-700X, 
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 252.209-700X to read as follows:

252.209-700X  Critical Safety Items.

    As prescribed in 209.270-5, use the following clause:

Critical Safety Items (Date)

    (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--
    (1) A catastrophic or critical failure resulting in the loss of, 
or serious damage to, the aircraft or weapon system;
    (2) An unacceptable risk of personal injury or loss of life; or
    (3) An uncommanded engine shutdown that jeopardizes safety.
    Design control activity--
    (1) 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
    (2) 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--
    (1) A catastrophic or critical failure resulting in loss of, or 
serious damage to, the ship; or
    (2) An unacceptable risk of personal injury or loss of life.
    (b) Identification of critical safety items. One or more of the 
items being acquired 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:

-----------------------------------------------------------------------

-----------------------------------------------------------------------

-----------------------------------------------------------------------

-----------------------------------------------------------------------

(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.

[[Page 14643]]

(End of clause)

[FR Doc. 2011-6231 Filed 3-16-11; 8:45 am]
BILLING CODE 5001-08-P
```