[Federal Register: August 1, 2005 (Volume 70, Number 146)]
[Proposed Rules]               
[Page 44077-44078]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01au05-17]                         


[[Page 44077]]

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DEPARTMENT OF DEFENSE

48 CFR Parts 246 and 252

[DFARS Case 2004-D008]

 
Defense Federal Acquisition Regulation Supplement; Notification 
Requirements for Critical Safety Items

AGENCY: Department of Defense (DoD).

ACTION: Proposed rule with request for comments.

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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement (DFARS) to add policy regarding notification of 
potential safety issues under DoD contracts. The proposed rule contains 
a contract clause requiring contractors to promptly notify the 
Government of any nonconformance or deficiency that could impact item 
safety.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before September 30, 2005, to be 
considered in the formation of the final rule.

ADDRESSES: You may submit comments, identified by DFARS Case 2004-D008, 
using any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 

Follow the instructions for submitting comments.
     Defense Acquisition Regulations Web Site: http://emissary.acq.osd.mil/dar/dfars.nsf/pubcomm.
 Follow the instructions for 

submitting comments.
     E-mail: dfars@osd.mil. Include DFARS Case 2004-D008 in the 
subject line of the message.
     Fax: (703) 602-0350.
     Mail: Defense Acquisition Regulations Council, Attn: Ms. 
Michele Peterson, OUSD (AT&L) DPAP (DAR), IMD 3C132, 3062 Defense 
Pentagon, Washington, DC 20301-3062.
     Hand Delivery/Courier: Defense Acquisition Regulations 
Council, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA 
22202-3402.
    All comments received will be posted to http://emissary.acq.osd.mil/dar/dfars.nsf
.


FOR FURTHER INFORMATION CONTACT: Ms. Michele Peterson, (703) 602-0311.

SUPPLEMENTARY INFORMATION:

A. Background

    This proposed DFARS rule contains a new clause for use in contracts 
for (1) replenishment parts identified as critical safety items; (2) 
systems and subsystems, assemblies, and subassemblies integral to a 
system; and (3) repair, maintenance, logistics support, or overhaul 
services for systems and subsystems, assemblies, and subassemblies 
integral to a system. The clause requires the contractor to notify the 
administrative contracting officer and the procuring contracting 
officer within 72 hours after discovering or acquiring credible 
information concerning an item nonconformance or deficiency that may 
have a safety impact. This proposed 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.
    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 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 
applies only in situations where nonconformances or deficiencies could 
impact item safety. The occurrence of such situations is expected to be 
limited. Therefore, DoD has not performed an initial regulatory 
flexibility analysis. 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 2004-D008.

C. Paperwork Reduction Act

    This proposed rule contains a new information collection 
requirement. DoD has submitted the following proposal to the Office of 
Management and Budget (OMB) under the provisions of the Paperwork 
Reduction Act (44 U.S.C. Chapter 35). Comments are invited on: (a) 
Whether the proposed collection of information is necessary for the 
proper performance of the functions of DoD, including whether the 
information will have practical utility; (b) the accuracy of the 
estimate of the burden of the proposed information collection; (c) ways 
to enhance the quality, utility, and clarity of the information to be 
collected; and (d) ways to minimize the burden of the information 
collection on respondents, including the use of automated collection 
techniques or other forms of information technology.
    Title: Defense Federal Acquisition Regulation Supplement (DFARS); 
Notification Requirements for Critical Safety Items.
    Type of Request: New requirement.
    Number of Respondents: 100.
    Responses Per Respondent: 1.
    Annual Responses: 100.
    Average Burden Per Response: 1 hour.
    Annual Burden Hours: 100.
    Needs and Uses: DoD needs this information to ensure that the 
Government receives timely notification of item nonconformances or 
deficiencies that could have a safety impact. DoD contracting and 
requirements personnel will use this information to notify the 
appropriate parties of the potential safety issue, assess the impact, 
mitigate the risk, and take corrective action.
    Affected Public: Businesses or other for-profit and not-for-profit 
institutions.
    Frequency: On occasion.
    Respondent's Obligation: Required to obtain or retain benefits.
    OMB Desk Officer: Mr. Lewis Oleinick.
    Written comments and recommendations on the proposed information 
collection should be sent to Mr. Oleinick at the Office of Management 
and Budget, Desk Officer for DoD, Room 10236, New Executive Office 
Building, Washington, DC 20503, with a copy to the Defense Acquisition 
Regulations Council, Attn: Ms. Michele Peterson, OUSD (AT&L) DPAP 
(DAR), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062. 
Comments can be received from 30 to 60 days after the date of this 
notice, but comments to OMB will be most useful if received by OMB 
within 30 days after the date of this notice.
    To request more information on this proposed information collection 
or to obtain a copy of the proposal and associated collection 
instruments, please write to the Defense Acquisition Regulations 
Council, Attn: Ms. Michele Peterson, OUSD (AT&L) DPAP (DAR), IMD 3C132, 
3062 Defense Pentagon, Washington, DC 20301-3062.

List of Subjects in 48 CFR Parts 246 and 252

    Government procurement.

Michele P. Peterson,
Editor, Defense Acquisition Regulayions System.

    Therefore, DoD proposes to amend 48 CFR parts 246 and 252 as 
follows:
    1. The authority citation for 48 CFR parts 246 and 252 continues to 
read as follows:

    Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.

[[Page 44078]]

PART 246--QUALITY ASSURANCE

    2. Section 246.101 is amended by adding a definition of 
``Replenishment part'' to read as follows:


246.101  Definitions.

* * * * *
    Replenishment part, as used in this subpart, means a repairable or 
consumable part, purchased after provisioning of that part, for--
    (1) Replacement;
    (2) Replenishment of stock; or
    (3) Use in the maintenance, overhaul, or repair of equipment.
    3. Section 246.371 is added to read as follows:


246.371  Notification of potential safety issues.

    (a) Use the clause at 252.246-7XXX, Notification of Potential 
Safety Issues, in solicitations and contracts for the acquisition of--
    (1) Replenishment 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, and subassemblies integral to a 
system.
    (b) Follow the procedures at PGI 246.371 for the handling of 
notifications received under the clause at 252.246-7XXX.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    4. Section 252.246-7XXX is added to read as follows:


252.246-7XXX  Notification of Potential Safety Issues.

    As prescribed in 246.371(a), use the following clause:

Notification of Potential Safety Issues (XXX 2005)

    (a) Definitions. As used in this clause--
    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 cause a catastrophic or critical failure resulting in 
the loss of or serious damage to the system or an unacceptable risk 
of personal injury or loss of life.
    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 $200,000.
    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 technical nonconformances for replenishment 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 shall notify the Administrative Contracting 
Officer (ACO) and the Procuring Contracting Officer (PCO) within 72 
hours after discovering or acquiring credible information concerning 
nonconformances and deficiencies described in paragraph (b) of this 
clause.
    (1) The notification shall include--
    (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.
    (2) The Contractor may provide the notification in writing or 
telephonically. However, the Contractor shall provide a confirming 
written notification, that includes the information required by 
paragraph (c)(1) of this clause, to the ACO and the PCO within 72 
hours after a telephonic notification. As further information 
becomes available, the Contractor shall also provide that 
information to the ACO and the PCO.
    (d) The Contractor is responsible for the notification of 
potential safety issues occurring with regard to an item furnished 
by any subcontractor. However--
    (1) The subcontractor shall provide the notification required by 
paragraph (c) of this clause to--
    (i) The Contractor or the appropriate higher-tier subcontractor; 
and
    (ii) The ACO and the PCO, if the subcontractor is aware of the 
ACO and the PCO for the contract; and
    (2) The Contractor 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) The Contractor shall include this clause, including this 
paragraph (f), in all subcontracts issued under this contract.

(End of clause)

[FR Doc. 05-15156 Filed 7-29-05; 8:45 am]

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