Federal Register / Vol. 72, No. 13 / Monday, January 22, 2007 / Rules and Regulations 2633 

may use the Governmentwide 

commercial purchase card to make a 

purchase that exceeds the micropurchase threshold but does not exceed 

the simplified acquisition threshold if 

certain conditions are met. See 

213.301(3). 

(5) Imprest funds and third party 

drafts. Imprest funds are authorized for 

use without further approval for 

overseas transactions at or below the 

micro-purchase threshold in support of 

a contingency operation or a 

humanitarian or peacekeeping 

operation. See 213.305–3(d)(iii)(A). 

(6) Standard Form (SF) 44, Purchase 

Order-Invoice-Voucher. SF 44s may be 

used for purchases not exceeding the 

simplified acquisition threshold for 

overseas transactions by contracting 

officers in support of a contingency 

operation or a humanitarian or 

peacekeeping operation. See 

213.306(a)(1)(B). 

(7) Undefinitized contract actions. 

The head of the agency may waive 

certain limitations for undefinitized 

contract actions if the head of the 

agency determines that the waiver is 

necessary to support a contingency 

operation or a humanitarian or 

peacekeeping operation. See 217.7404–

5(b). 

(8) Prohibited sources. DoD personnel 

are authorized to make emergency 

acquisitions in direct support of U.S. or 

allied forces deployed in military 

contingency, humanitarian, or 

peacekeeping operations in a country or 

region subject to economic sanctions 

administered by the Department of the 

Treasury, Office of Foreign Assets 

Control. See 225.701–70. 

(9) Authorization Acts, 

Appropriations Acts, and other 

statutory restrictions on foreign 

acquisition. Acquisitions in the 

following categories are not subject to 

the restrictions of 225.7002, Restrictions 

on food, clothing, fabrics, specialty 

metals, and hand or measuring tools: (1) 

Acquisitions at or below the simplified 

acquisition threshold; (2) Acquisitions 

outside the United States in support of 

combat operations; (3) Acquisitions of 

perishable foods by or for activities 

located outside the United States for 

personnel of those activities; (4) 

Acquisitions of food, specialty metals, 

or hand or measuring tools in support 

of contingency operations, or for which 

the use of other than competitive 

procedures has been approved on the 

basis of unusual and compelling 

urgency in accordance with FAR 6.302–

2; (5) Emergency acquisitions by 

activities located outside the United 

States for personnel of those activities; 

and (6) Acquisitions by vessels in 

foreign waters. See 225.7002–2. 

(10) Electronic submission and 

processing of payment requests. 

Contractors do not have to submit 

payment requests in electronic form for 

contracts awarded by deployed 

contracting officers in the course of 

military operations, including 

contingency operations or humanitarian 

or peacekeeping operations. See 

232.7002(a)(4). 

218.202 Defense or recovery from certain 

attacks. 

Policy for unique item identification. 

Contractors will not be required to 

provide DoD unique item identification 

if the items, as determined by the head 

of the agency, are to be used to facilitate 

defense against or recovery from 

nuclear, biological, chemical, or 

radiological attack. See 211.274–2(b). 

218.203 Incidents of national significance, 

emergency declaration, or major disaster 

declaration. 

(1) Establishing or maintaining 

alternative sources. PGI contains a 

sample format for Determination and 

Findings citing the authority of FAR 

6.202(a), regarding exclusion of a 

particular source in order to establish or 

maintain an alternative source or 

sources. Alternate 2 of the sample 

format addresses having a supplier 

available for furnishing supplies or 

services in case of a national emergency. 

See PGI 206.202. 

(2) Electronic submission and 

processing of payment requests. 

Contractors do not have to submit 

payment requests in electronic form for 

contracts awarded by contracting 

officers in the conduct of emergency 

operations, such as responses to natural 

disasters or national or civil 

emergencies. See 232.7002(a)(4). 

[FR Doc. E7–730 Filed 1–19–07; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 212, 244, 246, and 252 

RIN 0750–AF12 

Defense Federal Acquisition 

Regulation Supplement; Notification 

Requirements for Critical Safety Items 

(DFARS Case 2004–D008) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD has issued a final rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to add policy regarding 

notification of potential safety issues 

under DoD contracts. The rule contains 

a contract clause requiring contractors 

to promptly notify the Government of 

any nonconformance or deficiency that 

could impact item safety. 

DATES: Effective Date: January 22, 2007. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Mark Gomersall, Defense Acquisition 

Regulations System, OUSD (AT&L) 

DPAP (DARS), IMD 3C132, 3062 

Defense Pentagon, Washington, DC 

20301–3062. Telephone (703) 602–0302; 

facsimile (703) 602–0350. Please cite 

DFARS Case 2004–D008. 

SUPPLEMENTARY INFORMATION: 

A. Background 

This final rule contains a new 

contract clause requiring contractors to 

notify the Government of any 

nonconformance or deficiency that 

could impact the safety of items 

acquired by or serviced for the 

Government. The rule is a result of 

Section 8143 of the Fiscal Year 2004 

DoD Appropriations Act (Pub. L. 108–

87), which required examination of 

appropriate standards and procedures to 

ensure timely notification to the 

Government and contractors regarding 

safety issues, including defective parts. 

DoD published a proposed rule at 70 

FR 44077 on August 1, 2005. Thirteen 

respondents submitted comments on the 

proposed rule. A discussion of the 

comments is provided below. 

1. Comment: One respondent 

recommended amending the clause 

prescription at DFARS 246.371(a)(2) and 

(3) to change the term ‘‘system’’ to 

‘‘critical safety system.’’

DoD Response: The term ‘‘system’’

relates to an assemblage of subsystems, 

assemblies, and components that 

comprise an end item. Adding ‘‘critical 

safety’’ to the term ‘‘system’’ is 

unnecessary and would be confusing 

where major or less-than-major systems 

are not described in terms such as 

‘‘critical safety.’’

2. Comment: Five respondents 

suggested requiring the use of the 

Government-Industry Data Exchange 

Program (GIDEP) as the method for 

notification of safety issues and for 

reporting all types of technical data and 

reliability information. 

DoD Response: The primary objective 

of this DFARS rule is to ensure that 

contractors who have delivered 

defective products with potential safety 

implications notify affected contracting 

offices quickly, using whatever method 


sroberts on PROD1PC70 with RULES
2634 Federal Register / Vol. 72, No. 13 / Monday, January 22, 2007 / Rules and Regulations 

the contractor determines to be most 

expeditious. GIDEP may not be the most 

efficient or effective notification 

approach in many situations. 

3. Comment: One respondent 

suggested DoD include integrated 

environmental safety and occupational 

health issues in the coverage. 

DoD Response: Environmental safety 

and occupational health issues were not 

included in the mandate that resulted in 

the issuance of this DFARS rule (Section 

8143 of the Fiscal Year 2004 DoD 

Appropriations Act (Pub. L. 108–87)). 

4. Comment: One respondent 

recommended that the DFARS rule 

include a timeframe for reaction by the 

Government after notification. 

DoD Response: The intent of the 

DFARS rule is to ensure timely 

notification of potential safety defects. 

The time required by the Government to 

respond to and effectively investigate 

each incident will depend upon the 

circumstances of the situation. 

5. Comment: One respondent 

requested a more specific definition of 

‘‘safety’’ in the rule. 

DoD Response: DoD has reexamined 

all references to safety in the DFARS 

rule and has determined that the term 

is adequately explained in its context 

each time it is used. 

6. Comment: Five respondents 

submitted comments regarding 

timeframes for notification of potential 

safety defects. One respondent indicated 

that the requirement for notifying the 

procuring contracting officer (PCO) and 

the administrative contracting officer 

(ACO) within 72 hours of potential 

safety issues may cause over-reporting, 

because the contractor will have 

insufficient time to investigate the 

situation internally. The respondent 

requested flexibility regarding 

notification but did not provide a 

proposed timeframe for notification. 

Another respondent questioned whether 

72 hours would be realistic but 

provided no recommended time frame. 

Other respondents recommended 

notification periods of 3 business days; 

5 business days; and 10–30 working 

days. 

DoD Response: DoD concurs in 

lengthening the written notification 

period to 5 working days, but does not 

concur in making the initial reporting 

period for a potential safety defect 

flexible. The initial notification of 72 

hours is intended to ensure that the 

customer is aware of potential safety 

issues in delivered products, has a basic 

understanding of the circumstances, and 

has a point of contact to begin 

addressing a mutually acceptable plan 

of action. Because of the potential safety 

implications, the initial notification is a 

matter of urgency. The 5-day written 

notification period is consistent with 

similar requirements in the civil sector. 

The Federal Aviation Administration 

regulations at 14 CFR 21.3(e) require 

reporting of aviation failures, 

malfunctions, or defects within 24 hours 

after it has been determined that the 

failure, malfunction, or defect has 

occurred. Similarly, federal regulations 

governing motor vehicles at 49 CFR 

573.6(b) require submission of a report 

not more than 5 working days after a 

safety-related defect or noncompliance 

has been determined to exist. 

7. Comment: One respondent 

expressed concern that the DFARS rule 

does not indicate what information has 

to be communicated or the distribution 

or communication method. 

DoD Response: Paragraph (c) of the 

contract clause specifically describes 

the communication and information 

requirements. 

8. Comment: One respondent stated 

that the definition of ‘‘replenishment 

part’’ in 246.101 is satisfactory, but the 

phrase ‘‘purchased after provisioning’’

in the definition needs to be clarified or 

deleted. The phrase, as currently 

written, can cause confusion on whether 

initial provisioning orders are covered. 

DoD Response: DoD has amended the 

rule to remove the references to 

provisioning. The rule applies to all 

repairable and consumable parts 

identified as critical safety items. 

9. Comment: One respondent 

recommended limiting notification to 

truly significant threats to safety from 

malfunctioning systems or subsystems. 

DoD Response: Defining ‘‘truly 

significant threats to safety’’ would be 

difficult and could result in inconsistent 

application. Also, ‘‘build-to-print’’

manufacturers produce many critical 

safety items and may not have 

knowledge of an item’s ultimate 

application or failure consequences. 

10. Comment: One respondent 

expressed concern that a contracting 

officer might not know whether an item 

was a critical safety item and might 

include the notification requirement 

when it is unnecessary. 

DoD Response: The contract clause 

specifies that the notification 

requirement for parts applies to those 

items identified as critical safety items. 

The contracting officer will receive 

input from technical/requirements 

personnel as to which items fall into 

that category, and will identify those 

items in the contract. 

11. Comment: One respondent was 

concerned that the contracting officer 

may not know whether a system, 

subsystem, assembly, or subassembly is 

‘‘integral to a system,’’ as stated in 

DFARS 246.371, and may unnecessarily 

impose the notification requirement. 

DoD Response: The pertinent aspect 

of the rule is that notification be 

provided when there is a 

nonconformance or deficiency that may 

result in a safety impact for a system or 

its constituent components. A 

contracting officer or contractor 

involved with systems, subsystems, 

assemblies, or subassemblies will know 

the application of the product and 

whether it is integral to a system. The 

phrase ‘‘integral to a system’’ is used in 

FAR Part 34 in conjunction with items 

of supply that may be replaced during 

the service life of a system. 

12. Comment: One respondent 

expressed confusion as to whether the 

notification requirement applies to 

repair, maintenance, logistics support, 

or overhaul services contracts where a 

system, subsystem, assembly, or 

subassembly is integral to a system and 

failure or malfunction poses a safety 

risk; or only to repairs that are integral 

to the overall system regardless of 

effects on subsystems, assemblies, and 

subassemblies. 

DoD Response: Within the context of 

the DFARS rule, ‘‘integral to a system’’

means items of supply within a system 

that may be replaced during the service 

life of a system. 

13. Comment: One respondent 

suggested moving the definition of 

‘‘critical safety item’’ from the contract 

clause to 246.101. 

DoD Response: The definition is 

appropriately placed within the contract 

clause, where the term is used. 

14. Comment: One respondent stated 

that the notification requirement in 

paragraph (b)(2) of the contract clause 

was more expansive than the definition 

in 246.101, because it included the 

phrase ‘‘or parts.’’ The respondent also 

questioned whether the notification 

requirement applied to parts or software 

bugs that had no effect on the safety of 

the item as a whole. 

DoD Response: The final rule 

excludes the definition of 

‘‘replenishment part’’ from 246.101, and 

clarifies, in 246.371(a), that the contract 

clause applies to the acquisition of 

repairable or consumable parts 

identified as critical safety items. 

Paragraph (b) of the contract clause 

specifies that the notification 

requirement applies to all 

nonconformances for parts identified as 

critical safety items; and all 

nonconformances or deficiencies that 

may result in a safety impact for 

systems, or subsystems, assemblies, 

subassemblies, or parts integral to a 

system. 


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Federal Register / Vol. 72, No. 13 / Monday, January 22, 2007 / Rules and Regulations 2635 

15. Comment: One respondent 

expressed concern that the DFARS 

clause permitted subcontractors to 

bypass the prime or higher-tier 

subcontractor and directly notify the 

PCO and the ACO. The respondent was 

concerned that this did not allow the 

prime or higher-tier subcontractor to 

independently evaluate the information 

and assess its credibility, accuracy, or 

impact. 

DoD Response: Paragraph (f)(2)(i) of 

the contract clause specifically requires 

the subcontractor to notify the prime or 

higher-tier subcontractor. Paragraph 

(f)(2)(ii) of the clause requires the 

subcontractor to also notify the ACO 

and the PCO if the subcontractor is 

aware of the ACO and the PCO for the 

contract. Nothing in the clause 

precludes the prime contractor or 

higher-tier subcontractor from 

independently evaluating the 

information provided by the 

subcontractor. 

16. Comment: Two respondents 

expressed concern regarding the flowdown requirements of the contract 

clause. One respondent expressed 

concern about flow-down to commercial 

item subcontractors and to any 

subcontractors whose work does not 

involve critical safety items. Another 

respondent recommended that flowdown be limited to only the acquisition 

of replacement or replenishment spares. 

DoD Response: The final rule clarifies 

that the clause applies to contracts and 

subcontracts for both commercial and 

non-commercial items. This includes 

contracts and subcontracts for parts 

identified as critical safety items; 

systems and subsystems, assemblies and 

subassemblies integral to a system; and 

repair, maintenance, logistics support, 

or overhaul services for systems and 

subsystems, assemblies, subassemblies, 

and parts integral to a system. 

17. Comment: One respondent stated 

that the Government should supply and 

maintain a comprehensive list of critical 

safety items that is accessible to 

contractors. 

DoD Response: The parts that the 

Government has designated as critical 

safety items will be identified in the 

applicable contracts. 

18. Comment: Two respondents 

recommended clarification of the term 

‘‘technical nonconformance’’. 

DoD Response: DoD agrees that the 

term ‘‘technical nonconformance’’ could 

cause confusion and, therefore, has 

replaced this term with 

‘‘nonconformance’’ in paragraph (b)(1) 

of the contract clause. 

19. Comment: Two respondents stated 

that the term ‘‘safety impact’’ in the 

contract clause is not tangible or 

properly defined. 

DoD Response: The definition is 

consistent with MIL–STD–882D, 

Standard Practice for System Safety, 

Appendix A, for critical mishap severity 

categorization and mishap risk impact. 

20. Comment: One respondent 

recommended clarification that 

contractor notification is required only 

for parts sold to the Government and 

does not include parts scrapped by the 

contractor. 

DoD Response: Paragraph (b) of the 

contract clause specifies that the 

notification requirement applies to 

items acquired by or serviced for the 

Government under the contract. 

21. Comment: Three respondents 

requested clarification of the term 

‘‘credible information’’ as used in the 

contract clause. 

DoD Response: DoD has added a 

definition of ‘‘credible information’’ to 

the contract clause, based upon a 

recommended definition provided by 

one of the respondents. 

22. Comment: One respondent 

recommended that, instead of all critical 

safety items being subject to the 

reporting requirements of the contract 

clause, the reporting be limited to those 

situations resulting in safety impacts. 

DoD Response: A significant 

percentage of critical safety items 

purchased by DoD are provided by 

small businesses that may not know the 

end item application of the components 

they are supplying, nor the failure 

modes and effects of the items. Many of 

these small businesses may be unaware 

of whether a nonconformance would 

have a safety impact. Therefore, the 

recommended change was not adopted. 

23. Comment: One respondent stated 

that the definition of ‘‘critical safety 

item’’ does not indicate the level of 

damage sufficient to constitute 

‘‘serious’’ damage, and that it is unclear 

what level of risk of personal injury 

would be ‘‘unacceptable.’’ The 

respondent recommended that the 

language established for ‘‘safety impact’’

be used in the definition of ‘‘critical 

safety item’’ to preclude ambiguity. 

DoD Response: DoD has revised the 

definition of ‘‘critical safety item’’ in the 

contract clause to replace the potentially 

ambiguous language with a reference to 

the definition of ‘‘safety impact’’ within 

the contract clause. 

24. Comment: Two respondents 

expressed concern with the definition of 

‘‘safety impact’’ and associated dollar 

thresholds for property damage. One 

respondent stated that ‘‘safety impact’’

should focus on risk of injury or loss of 

life instead of property damage. The 

respondent suggested deleting ‘‘loss of a 

weapon system; or property damage 

exceeding $200,000’’ from the definition 

of ‘‘safety impact’’ or, alternatively, 

replacing ‘‘$200,000’’ with ‘‘$1,000,000’’

to reflect realistic thresholds. Another 

respondent recommended that the 

definition of ‘‘safety impact’’ be revised 

for consistency with the MIL–STD–882 

Risk Hazard Matrix, rather than the 

arbitrary property damage value of 

$200,000. 

DoD Response: DoD does not agree 

that notification requirements should 

apply only to risk of injury or loss of life 

situations. However, the monetary value 

specified in the rule has been revised to 

$1,000,000 for consistency with MIL–

STD–882D, Appendix A, Table A–I. 

25. Comment: One respondent stated 

that the assertion in paragraph (e) of the 

contract clause, that notification of 

safety issues will neither be an 

admission of responsibility nor a release 

of liability, would not adequately 

protect contractors from potential law 

suits. The respondent suggested that the 

clause include language that would 

reimburse the contractor for liabilities 

and expenses incidental to such 

liabilities to third persons not 

compensated by insurance or otherwise 

without regard to and as an exception to 

any limitation of cost or the limitation 

of funds clause in the contract. 

DoD Response: DoD cannot establish 

a clause that grants Government 

indemnification for liabilities to third 

parties arising from compliance with the 

clause. Absent express statutory 

authority, the Government may not 

enter into an agreement to hold 

harmless or indemnify where the 

amount of the Government’s liability is 

indefinite, indeterminable, or 

potentially unlimited. 

26. Comment: One respondent stated 

that the rule does not adequately define 

‘‘critical safety items’’ and suggests that 

the probability of failure be 

incorporated in the definition. 

DoD Response: The definition of 

‘‘critical safety item’’ is based on public 

law and existing DoD policies. Further, 

probability of failure assumes a part will 

be manufactured as specified. The 

DFARS rule addresses notification when 

a delivered item is nonconforming or 

defective; thus, probability of failure 

may not be meaningful. 

27. Comment: One respondent 

recommended that the requirement for 

notification of safety defects be limited 

to aviation products. 

DoD Response: DoD does not agree 

that the notification requirement should 

be limited to the aviation community. 

While the initial focus of critical safety 

items resulted from Section 802 of the 

National Defense Authorization Act for 


sroberts on PROD1PC70 with RULES
2636 Federal Register / Vol. 72, No. 13 / Monday, January 22, 2007 / Rules and Regulations 

Fiscal Year 2004 (Pub. L. 108–136), 

Section 8143 of the Fiscal Year 2004 

DoD Appropriations Act (Public Law 

108–87) required DoD to examine 

appropriate standards and procedures 

for timely notification regarding safety 

issues, including defective parts. It is 

essential that the Government be 

notified of all potential safety defects, 

regardless of product line. 

This rule was not subject to Office of 

Management and Budget review under 

Executive Order 12866, dated 

September 30, 1993. 

B. Regulatory Flexibility Act 

DoD 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., 

because the rule applies only in 

situations where nonconformances or 

deficiencies could impact item safety. 

The occurrence of such situations is 

expected to be limited. 

C. Paperwork Reduction Act 

This final rule contains a new 

information collection requirement. The 

Office of Management and Budget has 

approved the information collection for 

use through December 31, 2009, under 

Control Number 0704–0441. 

List of Subjects in 48 CFR Parts 212, 

244, 246, and 252 

Government procurement. 

Michele P. Peterson, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore, 48 CFR parts 212, 244, 246, 

and 252 are amended as follows: 

■ 1. The authority citation for 48 CFR 

parts 212, 244, 246, and 252 continues 

to read as follows: 

Authority: 41 U.S.C. 421 and 48 CFR 

Chapter 1. 

PART 212—ACQUISITION OF 

COMMERCIAL ITEMS 

■ 2. Section 212.301 is amended by 

adding paragraph (f)(xii) to read as 

follows: 

212.301 Solicitation provisions and 

contract clauses for the acquisition of 

commercial items. 

(f) * * * 

(xii) Use the clause at 252.246–7003, 

Notification of Potential Safety Issues, 

as prescribed in 246.371. 

PART 244—SUBCONTRACTING 

POLICIES AND PROCEDURES 

■ 3. Section 244.403 is revised to read 

as follows: 

244.403 Contract clause. 

Use the clause at 252.244–7000, 

Subcontracts for Commercial Items and 

Commercial Components (DoD 

Contracts), in solicitations and contracts 

for supplies or services other than 

commercial items, that contain any of 

the following clauses: 

(1) 252.225–7014 Preference for 

Domestic Specialty Metals, Alternate I. 

(2) 252.246–7003 Notification of 

Potential Safety Issues. 

(3) 252.247–7023 Transportation of 

Supplies by Sea. 

(4) 252.247–7024 Notification of 

Transportation of Supplies by Sea. 

PART 246—QUALITY ASSURANCE 

■ 4. Section 246.371 is added to read as 

follows: 

246.371 Notification of potential safety 

issues. 

(a) Use the clause at 252.246–7003, 

Notification of Potential Safety Issues, 

in solicitations and contracts for the 

acquisition of—

(1) Repairable or consumable parts 

identified as critical safety items; 

(2) Systems and subsystems, 

assemblies, and subassemblies integral 

to a system; or 

(3) Repair, maintenance, logistics 

support, or overhaul services for 

systems and subsystems, assemblies, 

subassemblies, and parts integral to a 

system. 

(b) Follow the procedures at PGI 

246.371 for the handling of notifications 

received under the clause at 252.246–

7003. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 5. Section 252.244–7000 is revised 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) 

(JAN 2007) 

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) 252.225–7014 Preference for Domestic 

Specialty Metals, Alternate I (10 U.S.C. 2241 

note). 

(b) 252.246–7003 Notification of Potential 

Safety Issues. 

(c) 252.247–7023 Transportation of 

Supplies by Sea (10 U.S.C. 2631). 

(d) 252.247–7024 Notification of 

Transportation of Supplies by Sea (10 U.S.C. 

2631). 

(End of clause) 

■ 6. Section 252.246–7003 is added to 

read as follows: 

252.246–7003 Notification of Potential 

Safety Issues. 

As prescribed in 246.371(a), use the 

following clause: 

Notification of Potential Safety Issues (JAN 

2007) 

(a) Definitions. As used in this clause—

Credible information means information 

that, considering its source and the 

surrounding circumstances, supports a 

reasonable belief that an event has occurred 

or will occur. 

Critical safety item means a part, 

subassembly, assembly, subsystem, 

installation equipment, or support equipment 

for a system that contains a characteristic, 

any failure, malfunction, or absence of which 

could have a safety impact. 

Safety impact means the occurrence of 

death, permanent total disability, permanent 

partial disability, or injury or occupational 

illness requiring hospitalization; loss of a 

weapon system; or property damage 

exceeding $1,000,000. 

Subcontractor means any supplier, 

distributor, vendor, or firm that furnishes 

supplies or services to or for the Contractor 

or another subcontractor under this contract. 

(b) The Contractor shall provide 

notification, in accordance with paragraph (c) 

of this clause, of—

(1) All nonconformances for parts 

identified as critical safety items acquired by 

the Government under this contract; and 

(2) All nonconformances or deficiencies 

that may result in a safety impact for systems, 

or subsystems, assemblies, subassemblies, or 

parts integral to a system, acquired by or 

serviced for the Government under this 

contract. 

(c) The Contractor—

(1) Shall notify the Administrative 

Contracting Officer (ACO) and the Procuring 

Contracting Officer (PCO) as soon as 

practicable, but not later than 72 hours, after 

discovering or acquiring credible information 

concerning nonconformances and 

deficiencies described in paragraph (b) of this 

clause; and 

(2) Shall provide a written notification to 

the ACO and the PCO within 5 working days 

that includes—

(i) A summary of the defect or 

nonconformance; 

(ii) A chronology of pertinent events; 

(iii) The identification of potentially 

affected items to the extent known at the time 

of notification; 

(iv) A point of contact to coordinate 

problem analysis and resolution; and 

(v) Any other relevant information. 

(d) The Contractor—

(1) Is responsible for the notification of 

potential safety issues occurring with regard 

to an item furnished by any subcontractor; 

and 


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Federal Register / Vol. 72, No. 13 / Monday, January 22, 2007 / Rules and Regulations 2637 

(2) Shall facilitate direct communication 

between the Government and the 

subcontractor as necessary. 

(e) Notification of safety issues under this 

clause shall be considered neither an 

admission of responsibility nor a release of 

liability for the defect or its consequences. 

This clause does not affect any right of the 

Government or the Contractor established 

elsewhere in this contract. 

(f)(1) The Contractor shall include the 

substance of this clause, including this 

paragraph (f), in subcontracts for—

(i) Parts identified as critical safety items; 

(ii) Systems and subsystems, assemblies, 

and subassemblies integral to a system; or 

(iii) Repair, maintenance, logistics support, 

or overhaul services for systems and 

subsystems, assemblies, subassemblies, and 

parts integral to a system. 

(2) For those subcontracts described in 

paragraph (f)(1) of this clause, the Contractor 

shall require the subcontractor to provide the 

notification required by paragraph (c) of this 

clause to—

(i) The Contractor or higher-tier 

subcontractor; and 

(ii) The ACO and the PCO, if the 

subcontractor is aware of the ACO and the 

PCO for the contract. 

(End of clause) 

[FR Doc. E7–733 Filed 1–19–07; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 225 and 252 

RIN 0750–AF54 

Defense Federal Acquisition 

Regulation Supplement; Berry 

Amendment Restrictions—Clothing 

Materials and Components Covered 

(DFARS Case 2006–D031) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Interim rule with request for 

comments. 

SUMMARY: DoD has issued an interim 

rule amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to implement Section 833(b) of 

the National Defense Authorization Act 

for Fiscal Year 2006. Section 833(b) 

expands the foreign source restrictions 

applicable to the acquisition of clothing 

to also include clothing materials and 

components, other than sensors, 

electronics, or other items added to, and 

not normally associated with, clothing 

and the materials and components 

thereof. 

DATES: Effective date: January 22, 2007. 

Comment date: Comments on the 

interim rule should be submitted in 

writing to the address shown below on 

or before March 23, 2007, to be 

considered in the formation of the final 

rule. 

ADDRESSES: You may submit comments, 

identified by DFARS Case 2006–D031, 

using any of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• E-mail: dfars@osd.mil. Include 

DFARS Case 2006–D031 in the subject 

line of the message. 

• Fax: (703) 602–0350. 

• Mail: Defense Acquisition 

Regulations System, Attn: Ms. Amy 

Williams, OUSD (AT&L) DPAP (DARS), 

IMD 3C132, 3062 Defense Pentagon, 

Washington, DC 20301–3062. 

• Hand Delivery/Courier: Defense 

Acquisition Regulations System, Crystal 

Square 4, Suite 200A, 241 18th Street, 

Arlington, VA 22202–3402. 

Comments received generally will be 

posted without change to http:// 

www.regulations.gov, including any 

personal information provided. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Amy Williams, (703) 602–0328. 

SUPPLEMENTARY INFORMATION: 

A. Background 

This interim rule amends DFARS 

225.7002–1 and the corresponding 

contract clause at 252.225–7012 to 

implement Section 833(b) of the 

National Defense Authorization Act for 

Fiscal Year 2006 (Pub. L. 109–163). 

Section 833(b) amended 10 U.S.C. 2533a 

(the Berry Amendment) to expand the 

foreign source restrictions applicable to 

the acquisition of clothing to also 

include clothing materials and 

components, other than sensors, 

electronics, or other items added to, and 

not normally associated with, clothing 

and the materials and components 

thereof. The rule also includes examples 

of items subject to the restrictions. 

This rule was not subject to Office of 

Management and Budget review under 

Executive Order 12866, dated 

September 30, 1993. 

B. Regulatory Flexibility Act 

DoD has prepared an initial regulatory 

flexibility analysis consistent with 5 

U.S.C. 603. A copy of the analysis may 

be obtained from the point of contact 

specified herein. The analysis is 

summarized as follows: 

The objective of the rule is to provide 

for the acquisition of clothing, and 

clothing materials and components, 

from domestic sources in accordance 

with statutory requirements. The legal 

basis for the rule is 10 U.S.C. 2533a (the 

Berry Amendment), as amended by 

Section 833(b) of the National Defense 

Authorization Act for Fiscal Year 2006 

(Pub. L. 109–163). The rule will apply 

to entities interested in receiving DoD 

contracts or subcontracts for the 

acquisition of clothing. Based on data 

generated from the DD Form 350, 

Individual Contracting Action Report, 

DoD awarded 6,072 contract actions 

relating to the acquisition of clothing 

items during fiscal year 2005. These 

actions had a total dollar value of $1.868 

billion and involved 1,110 contractors. 

Of these actions, 4,087 totaling $.81 

billion involved 906 contractors that 

were small business concerns. This rule 

may have a positive impact on small 

businesses that manufacture clothing 

materials and components, by reducing 

foreign competition. However, the rule 

could have a negative impact on small 

businesses that have been using foreign 

components in the manufacture of 

clothing products. 

DoD invites comments from small 

businesses and other interested parties. 

DoD also will consider comments from 

small entities concerning the affected 

DFARS subparts in accordance with 5 

U.S.C. 610. Such comments should be 

submitted separately and should cite 

DFARS Case 2006–D031. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply, because the rule does not 

impose any information collection 

requirements that require the approval 

of the Office of Management and Budget 

under 44 U.S.C. 3501, et seq. 

D. Determination To Issue an Interim 

Rule 

A determination has been made under 

the authority of the Secretary of Defense 

that urgent and compelling reasons exist 

to publish an interim rule prior to 

affording the public an opportunity to 

comment. This interim rule implements 

Section 833(b) of the National Defense 

Authorization Act for Fiscal Year 2006 

(Public Law 109–163). Section 833(b) 

expands the foreign source restrictions 

applicable to the acquisition of clothing, 

to also include clothing materials and 

components, other than sensors, 

electronics, or other items added to, and 

not normally associated with, clothing 

and the materials and components 

thereof. Section 833(b) became effective 

upon enactment on January 6, 2006. 

Comments received in response to this 

interim rule will be considered in the 

formation of the final rule. 


sroberts on PROD1PC70 with RULES