[Federal Register Volume 75, Number 67 (Thursday, April 8, 2010)]
[Proposed Rules]
[Pages 18041-18042]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-7262]
Federal Register / Vol. 75, No. 67 / Thursday, April 8, 2010 /
Proposed Rules
[[Page 18041]]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 223 and 252
RIN 0750-AG35
Defense Federal Acquisition Regulation Supplement; Minimizing Use
of Hexavalent Chromium (DFARS Case 2009-D004)
AGENCY: Defense Acquisition Regulations System, 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 address requirements for minimizing
the use of hexavalent chromium in defense weapon systems, subsystems,
components, and other items. The proposed rule prohibits the delivery
of items containing hexavalent chromium under DoD contracts unless an
exception applies.
DATES: Comments on the proposed rule should be submitted in writing to
the address shown below on or before June 7, 2010, to be considered in
the formation of the final rule.
ADDRESSES: You may submit comments, identified by DFARS Case 2009-D004,
using any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting comments.
E-mail: [email protected]. Include DFARS Case 2009-D004 in the subject
line of the message.
Fax: 703-602-7887.
Mail: Defense Acquisition Regulations System, Attn: Ms. Cassandra
Freeman, OUSD (AT&L) DPAP (DARS), 3060 Defense Pentagon, Room 3B855,
Washington, DC 20301-3060.
Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided.
FOR FURTHER INFORMATION CONTACT: Ms. Cassandra Freeman, 703-602-8383.
SUPPLEMENTARY INFORMATION:
A. Background
Hexavalent chromium is a significant chemical in numerous DoD
weapon systems and platforms due to its corrosion protection
properties. On April 8, 2009, the Under Secretary of Defense
(Acquisition, Technology and Logistics) issued a memorandum
establishing policy for the minimization of hexavalent chromium use
throughout DoD (https://www.denix.osd.mil/portal/page/portal/denix/environment/MERIT).
This proposed rule adds a new DFARS subpart and a corresponding
contract clause to address requirements for minimizing the use of
hexavalent chromium in defense items.
This rule was 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 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 proposed rule is consistent with national and international
restrictions and controls on the use of hexavalent chromium. Therefore,
DoD has not performed an initial regulatory flexibility analysis. 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 2009-D004) in
correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply, because the proposed
rule does not contain any information collection requirements that
require the approval of the Office of Management and Budget under 44
U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 223 and 252
Government procurement.
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.
Therefore, DoD proposes to amend 48 CFR parts 223 and 252 as
follows:
1. The authority citation for 48 CFR parts 223 and 252 continues to
read as follows:
Authority: 41 U.S.C. 421 and 48 CFR chapter 1.
PART 223--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE
ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE
2. Add subpart 223.73 to read as follows:
Subpart 223.73--Minimizing the Use of Hexavalent Chromium
Sec.
223.7301 Policy.
223.7302 Prohibition.
223.7303 Exceptions.
223.7304 Contract clause.
223.7301 Policy.
It is DoD policy to minimize the use of hexavalent chromium (an
anti-corrosive) due to the serious human health and environmental risks
related to its use.
223.7302 Prohibition.
Except as provided in section 223.7303, no DoD contract may include
a specification or standard that results in a deliverable containing
hexavalent chromium or the use of hexavalent chromium in contract
performance. This prohibition is in addition to any imposed by the
Clean Air Act regardless of the place of performance.
223.7303 Exceptions.
The prohibition in 223.7302 does not apply--
(a) If the use of hexavalent chromium is specifically authorized at
a level no lower than a general or flag officer or a member of the
Senior Executive Service from the Program Executive Office or
equivalent level, in coordination with the component Corrosion Control
and Prevention Executive. Forward any request for approval to allow the
delivery or use of products or materials containing hexavalent chromium
to the cognizant technical representative for evaluation and, if
necessary, authorization by the appropriate official.
(b) To legacy systems and their related parts, subsystems, and
components that already contain hexavalent chromium. However,
alternatives to hexavalent chromium shall be considered during system
modifications, follow-on procurements of legacy systems, or maintenance
procedure updates.
223.7304 Contract clause.
Unless an exception has been authorized in accordance with
223.7303, use the clause at 252.223-7XXX, Prohibition on Use of
Hexavalent Chromium, in solicitations and contracts for supplies,
maintenance and repair services, or construction.
[[Page 18042]]
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
3. Add section 252.223-7XXX to read as follows:
252.223-7XXX, Prohibition on use of hexavalent chromium.
As prescribed in 223.7304, use the following clause:
PROHIBITION ON USE OF HEXAVALENT CHROMIUM (DATE)
(a) Definitions. As used in this clause--
Homogeneous material means a material that cannot be
mechanically disjointed into different materials and is of uniform
composition throughout.
Mechanically disjointed means that the materials can be, in
principle, separated by mechanical actions such as unscrewing,
cutting, crushing, grinding, and abrasive processes.
(b) Prohibition. Unless otherwise specified by the Contracting
Officer, the Contractor shall not provide any deliverables under
this contract, or use materials in performance of this contract,
that contain hexavalent chromium in a concentration greater than 0.1
percent by weight in any homogeneous material.
(c) Liability. The Contractor is financially liable for any
damages resulting from use or delivery of any materials that contain
unapproved hexavalent chromium.
(d) Subcontracts. The Contractor shall include the substance of
this clause, including this paragraph (d), in all subcontracts for
supplies, maintenance and repair services, or construction
materials.
(End of clause)
[FR Doc. 2010-7262 Filed 4-7-10; 8:45 am]
BILLING CODE 5001-08-P