[Federal Register Volume 84, Number 125 (Friday, June 28, 2019)]
[Proposed Rules]
[Pages 30986-30988]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-13742]


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

DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 228 and 252

[Docket DARS-2019-0030]
RIN 0750-AK12


Defense Federal Acquisition Regulation Supplement: Modification 
of DFARS Clause ``Accident Reporting and Investigation Involving 
Aircraft, Missiles, and Space Launch Vehicles'' (DFARS Case 2018-D047)

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 modify the text of an existing clause 
prescription to require, instead of permit, the clause be included in 
applicable solicitations and contracts, pursuant to action taken by the 
Regulatory Reform Task Force.

DATES: Comments on the proposed rule should be submitted in writing to 
the

[[Page 30987]]

address shown below on or before August 27, 2019, to be considered in 
the formation of a final rule.

ADDRESSES: Submit comments identified by DFARS Case 2018-D047, using 
any of the following methods:
    [cir] Regulations.gov: http://www.regulations.gov. Submit comments 
via the Federal eRulemaking portal by entering ``DFARS Case 2018-D047'' 
under the heading ``Enter keyword or ID'' and selecting ``Search.'' 
Select the link ``Submit a Comment'' that corresponds with ``DFARS Case 
2018-D047.'' Follow the instructions provided at the ``Submit a 
Comment'' screen. Please include your name, company name (if any), and 
``DFARS Case 2018-D047'' on your attached document.
    [cir] Email: [email protected]. Include DFARS Case 2018-D047 in 
the subject line of the message.
    [cir] Fax: 571-372-6094.
    [cir] Mail: Defense Acquisition Regulations System, Attn: Carrie 
Moore, OUSD(A&S)DPC/DARS, Room 3B941, 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 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: Ms. Carrie Moore, telephone 571-372-
6093.

SUPPLEMENTARY INFORMATION: 

I. Background

    This rulemaking proposes to modify the clause prescription at DFARS 
228.370 to require that DFARS clause 252.228-7005, Accident Reporting 
and Investigation Involving Aircraft, Missiles, and Space Launch 
Vehicles, be included in all solicitations and contracts, when 
applicable, and updates the text of the clause to follow current DFARS 
convention regarding the use of the word ``shall'' to indicate a 
mandatory requirement or action.
    DFARS 252.239-7005 was implemented to ensure the Government 
receives timely notification of accidents involving aircraft, missile, 
or space launch vehicles being manufactured, modified, repaired, or 
overhauled by a contractor in connection with a contract and contractor 
cooperation with Government investigation of such accidents. The clause 
is included in solicitations and contracts that involve the 
manufacture, modification, overhaul, or repair of aircraft, missiles, 
and space launch vehicles. The clause requires contractors to promptly 
notify the contracting officer of all facts related to an accident 
involving such items, cooperate with and assist in the Government's 
investigation of an accident, and include a similar clause in 
subcontracts under the contract.

II. Discussion and Analysis

    This rulemaking proposes to amend the clause prescription from 
permitting use of the clause (i.e., this clause ``may'' be used) to 
requiring use of the clause (i.e., this clause ``shall'' be used), as 
there is no situation in which the requirements of the clause would not 
be necessary to the Government when contracting for the manufacture, 
modification, overhaul, or repair of aircraft, missiles, and space 
launch vehicles. In order to follow current DFARS convention regarding 
the use of ``shall'' to indicate a mandatory requirement, this rule 
also amends the text of the clause from ``will'' to ``shall'' to 
clarify the intent of the clause.
    The modification of this DFARS text supports a recommendation from 
the DoD Regulatory Reform Task Force. On February 24, 2017, the 
President signed Executive Order (E.O.) 13777, ``Enforcing the 
Regulatory Reform Agenda,'' which established a Federal policy ``to 
alleviate unnecessary regulatory burdens'' on the American people. In 
accordance with E.O. 13777, DoD established a Regulatory Reform Task 
Force to review and validate DoD regulations, including the DFARS. A 
public notice of the establishment of the DFARS Subgroup to the DoD 
Regulatory Reform Task Force, for the purpose of reviewing DFARS 
provisions and clauses, was published in the Federal Register at 82 FR 
35741 on August 1, 2017, and requested public input. No public comments 
were received on these clauses. Subsequently, the DoD Task Force 
reviewed the requirements of DFARS clause 252.228-7005 and determined 
that the clause should be modified.

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold and for Commercial Items, Including Commercially Available 
Off-the-Shelf Items

    This proposed rule does not create any new provisions or clauses. 
This proposed rule, if adopted, would amend a clause provision to 
require its inclusion in applicable contracts and clarifies the intent 
of the clause. The rulemaking does not change the applicability of the 
clause to commercial or commercially available off-the-shelf (COTS) 
items, or items valued at or below the simplified acquisition threshold 
(SAT). The clause remains applicable to items valued below the SAT, but 
not applicable to commercial or COTS items.

IV. Executive Orders 12866 and 13563

    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 not a 
significant regulatory action and, therefore, was not 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.

V. Executive Order 13771

    This proposed rule is not expected to be subject to E.O. 13771, 
because this proposed rule is not a significant regulatory action under 
E.O. 12866.

VI. Regulatory Flexibility Act

    DoD does not expect this proposed 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 is not creating any new requirements or changing any 
existing requirements for contractors. However, an initial regulatory 
flexibility analysis has been performed and is summarized as follows:
    The Department of Defense is proposing to amend the Defense Federal 
Acquisition Regulation Supplement (DFARS) to amend the clause 
prescription at DFARS 228.370 to require that DFARS clause 252.228-
7005, Accident Reporting and Investigation Involving Aircraft, 
Missiles, and Space Launch Vehicles, be included in all solicitations 
and contracts involving the manufacture, modification, overhaul, or 
repair of these items; and, update the text of the clause to follow 
current DFARS convention regarding the use of the word ``shall'' to 
indicate a mandatory requirement or action. This rule is pursuant to 
action taken by the DoD Regulatory Reform Task Force.
    The objective of this proposed rule is to ensure contractor 
cooperation in the early reporting of accidents that involve an 
aircraft, missile, or space launch vehicle being manufactured, 
modified,

[[Page 30988]]

repaired, or overhauled by the contractor in connection with the 
contract; and, with the Government investigation of such accidents. 
This proposed rule requires, instead of permits, the inclusion of the 
clause in all applicable contracts. The rulemaking also updates the 
clause to clarify its intent; however, it is assumed that the clause is 
already being included in all applicable contracts. The rulemaking 
simply clarifies the Government's expectation on the usage of the 
clause.
    According to data available in the Federal Procurement Data System 
(FPDS) for fiscal years 2016 through 2018, DoD awarded a total of 2,288 
noncommercial contracts and orders for services under the product 
services codes listed below that relate to manufacture, modification, 
overhaul, or repair of aircraft, missiles, and space launch vehicles. 
Of these 2,288 awards, 219, or approximately 10 percent, were made to 
67 unique small business entities over this three-year period. On 
average, 73 awards were made to 22 unique small entities on an annual 
basis.
    FPDS does not provide additional information on the types of 
support services provided under the contract, which can include 
manufacture, modification, overhaul, or repair work; therefore, the 
number of small business contractors impacted by this rule is expected 
to be less than the number of entities identified by the data. The FPDS 
data reflects awards under the following product service codes:
    AC16--R&D--Defense System: Aircraft (Management/Support);
    AC26--Defense System: Missile/Space Systems (Management/Support);
    AR96--R&D--Space: Other (Management/Support);
    J014--Repair, and Rebuilding of Equipment--Guided Missiles;
    J015--Maintenance, Repair, and Rebuilding of Equipment--Aircraft 
and Airframe Structural Components;
    J018--Maintenance, Repair, and Rebuilding of Equipment--Space 
Vehicles;
    K014--Modification of Equipment--Guided Missiles;
    K015--Modification of Equipment--Aircraft and Airframe Structural 
Components; and,
    K018--Modification of Equipment--Space Vehicles.
    This proposed rule does not include any new reporting, 
recordkeeping, or other compliance requirements for small businesses. 
This rulemaking does not duplicate, overlap, or conflict with any other 
Federal rules. There are no known significant alternative approaches to 
the proposed rule that would meet the proposed objectives.
    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 2018-D047) 
in correspondence.

VII. Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. chapter 35) applies to this 
rule, as the information collection requirement in DFARS clause 
252.228-7005, Accident Reporting and Investigation Involving Aircraft, 
Missiles, and Space Launch Vehicles, is currently approved under OMB 
Control Number 0704-0216, entitled ``Defense Federal Acquisition 
Regulation Supplement (DFARS) Part 228, Bonds and Insurance, and 
related clauses at DFARS 252.228.'' The proposed changes to the clause 
prescription and text do not impact the information collection, because 
prompt contractor reporting of such accidents is already required by 
the clause and remains unchanged.

List of Subjects in 48 CFR Parts 228 and 252

    Government procurement.

Jennifer Lee Hawes,
Regulatory Control Officer, Defense Acquisition Regulations System.
    Therefore, 48 CFR parts 228 and 252 are proposed to be amended as 
follows:

0
1. The authority citation for 48 CFR parts 228 and 252 continues to 
read as follows:

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.

PART 228--BONDS AND INSURANCE

0
2. Amend section 228.370 by revising paragraph (d) to read as follows:


228.370  Additional clauses.

* * * * *
    (d) Use the clause at 252.228-7005, Accident Reporting and 
Investigation Involving Aircraft, Missiles, and Space Launch Vehicles, 
in solicitations and contracts that involve the manufacture, 
modification, overhaul, or repair of aircraft, missiles, and space 
launch vehicles.
* * * * *

PART 252--SOLICITATION ROVISIONS AND CONTRACT CLAUSES


252.228-7005  [Amended]

0
3. Amend section 252.228-7005 by--
0
a. Removing the clause date ``(DEC 1991)'' and adding ``(DATE)'' in its 
place; and
0
b. In paragraphs (b) and (c) removing ``will'' and adding ``shall'' in 
both places.

[FR Doc. 2019-13742 Filed 6-27-19; 8:45 am]
 BILLING CODE 5001-06-P