2011-6231. 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:

○ 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.

○ E-mail: [e-mail]. Include DFARS Case 2010-D022 in the subject line of the message.

○ Fax: [phone].

○ 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 [phone]; 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 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.

(End of clause)