```

[Federal Register Volume 76, Number 161 (Friday, August 19, 2011)]
[Rules and Regulations]
[Pages 52138-52139]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-20529]

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

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 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 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:

[[Page 52139]]

0
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

0
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

0
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:

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

(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
```