[Federal Register: April 8, 2010 (Volume 75, Number 67)]
[Proposed Rules]               
[Page 18041-18042]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08ap10-26]                         



[[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: dfars@osd.mil. 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