[Federal Register Volume 76, Number 87 (Thursday, May 5, 2011)]
[Rules and Regulations]
[Pages 25569-25576]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-10882]



[[Page 25569]]

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

DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 223 and 252

RIN 0750-AG35


Defense Federal Acquisition Regulation Supplement; Minimizing the 
Use of Materials Containing Hexavalent Chromium (DFARS Case 2009-D004)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Final rule.

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

SUMMARY: DoD is issuing a final rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to implement the requirements 
for minimizing the use of materials containing hexavalent chromium in 
items acquired by DoD (deliverables and construction materials 
hereafter referred to as deliverables). Hexavalent chromium is a 
chemical that has been used in numerous DoD weapons systems and 
platforms due to its corrosion protection properties. However, 
hexavalent chromium is a known carcinogen. This rule codifies a DoD 
policy for addressing the serious human health and environmental risks 
related to the use of hexavalent chromium. The rule prohibits the 
delivery of items containing more than 0.1 percent by weight hexavalent 
chromium in any homogeneous material under DoD contracts unless there 
is no acceptable alternative to the use of hexavalent chromium.

DATES: Effective Date: May 5, 2011.

FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, 703-602-0328.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD published a proposed rule on hexavalent chromium in the Federal 
Register at 75 FR 18041 on April 8, 2010. This final rule amends the 
DFARS to implement requirements to minimize the delivery of materials 
containing hexavalent chromium in DoD acquisitions. The DFARS governs 
only DoD procurements, therefore, this action establishes requirements 
that DoD personnel must follow when making acquisitions for new 
systems.
    Hexavalent chromium is a chemical that has been used in numerous 
DoD weapons systems and platforms due to its corrosion protection 
properties. However, hexavalent chromium is recognized as an inhalation 
carcinogen. The National Toxicology Program's Report on Carcinogens, 
Eleventh Edition, lists hexavalent chromium compounds as known human 
carcinogens. (See http://ntp.niehs.nih.gov/ntp/roc/eleventh/known.pdf.) 
The Environmental Protection Agency (EPA) classifies hexavalent 
chromium as a known human carcinogen by the inhalation route of 
exposure. (See http://www.epa.gov/iris/subst/0144.htm.)
    In response to the serious human health and environmental risks 
associated with the use of hexavalent chromium, there has been an 
increase in national and international restrictions and controls. For 
example, in 2006, the Occupational Safety and Health Administration 
(OSHA) lowered the permissible exposure limit (PEL) ten-fold from 52 to 
5 micrograms-per-cubic-meter, making it among the most stringently 
regulated materials used in manufacturing and maintenance operations. 
Similarly, the European Union Restriction of Hazardous Substances 
Directive restricts the use of hexavalent chromium in the manufacturing 
of certain types of electronic and electrical equipment. Finally, a 
number of defense-related industries are minimizing or eliminating the 
use of hexavalent chromium where proven substitutes are available.
    Such restrictions and industry practices have decreased the 
availability of materials containing hexavalent chromium and have 
increased the regulatory burden and life cycle costs for DoD. Indeed, 
DoD and the industry have made substantial investments in finding 
suitable replacements for hexavalent chromium. To protect future access 
for critical applications and to implement its commitments pursuant to 
Executive Orders 13514 and 13423, on April 8, 2009, the Under Secretary 
of Defense (Acquisition, Technology and Logistics) issued a policy 
memorandum to minimize the use of materials containing hexavalent 
chromium in the acquisition of new systems throughout DoD. Among other 
things, the policy memorandum directed DoD personnel (specifically the 
Program Executive Offices in conjunction with the Military Department's 
Corrosion Control and Prevention Executive) to certify that ``no 
acceptable alternative'' exists before using any material containing 
hexavalent chromium on a new system and directed the Defense 
Acquisition Regulation Council to develop a clause for defense 
contracts that prohibits the use of materials containing hexavalent 
chromium in all future procurements unless specifically approved by the 
Government. This final rule implements those aspects of the policy 
memorandum. The final rule adds a new DFARS subpart and a corresponding 
contract clause to minimize hexavalent chromium in deliverables 
acquired under DoD contracts.

II. Analysis of Public Comments

    Eleven respondents submitted comments on the proposed rule. A 
discussion of those comments and the revisions made to the rule as a 
result of those comments is provided below. The comments are organized 
and presented in ten overall categories. Some comments did not pertain 
to the DFARS rule itself; however, they are addressed to assist in 
further clarifying the rule. Six of the eleven respondents supported 
the objective of minimizing the use of hexavalent chromium or indicated 
that they were already compliant. The remaining five respondents did 
not express support or object to the rule, but provided implications 
and examples of actions that will be required to minimize hexavalent 
chromium in deliverables. Three respondents questioned the need for the 
rule since DoD and industry have been working for years to develop 
substitutes. Despite reservations about the need for the rule, these 
respondents provided recommendations for improving the rule. A number 
of the most significant recommendations have been incorporated in the 
revised rule as discussed in more detail below.

A. Clarification of Definitions, Terms, or Language

    Comment: Two respondents requested clarification of contractor 
responsibility for identifying alternatives or obtaining approvals for 
hexavalent chromium use.
    DoD Response: A DoD solicitation for a new deliverable may contain 
specifications for approved hexavalent chromium substitutes. In other 
solicitations, or for other components in the same solicitation, DoD 
may provide specifications that require hexavalent chromium where its 
use is deemed necessary to meet performance requirements and/or where 
proven substitutes are not available. Consideration of substitutes will 
include evaluation of the factors described in the DoD policy memo 
including--
     Cost effectiveness of alternative materials or processes;
     Technical feasibility of alternative materials or 
processes;
     Environment, safety, and occupational health risks 
associated with the use of the hexavalent

[[Page 25570]]

chromium or substitute materials in each specific application;
     Achieving a DoD Manufacturing Readiness Level of at least 
eight (8) for any qualified alternative;
     Materiel availability of hexavalent chromium and the 
proposed alternatives over the projected life span of the system; and
     Corrosion performance difference of alternative materials 
or processes as determined by agency corrosion subject matter experts.
    A performance-based solicitation may not provide specifications for 
a substitute or pre-approval for hexavalent chromium. In such cases, 
the contractor is responsible for either providing a substitute that 
meets performance requirements or providing a request to the 
contracting officer for providing a deliverable containing hexavalent 
chromium. The contracting officer will forward the request to the 
authorized approving official (DFARS 223.7305(a)) for decision.
    The Advanced Surface Engineering Technologies for a Sustainable 
Defense (ASETSDefense) Web site at http://www.assetsdefense.org has 
been established to provide information about hexavalent chromium 
substitutes. The site has a database that can be searched by type of 
process for substitute information. The site also contains briefings 
and summary reports from DoD-industry workshops on sustainable coatings 
and processes. The site helps reduce duplication in testing for the 
same or similar applications.
    Comment: Two respondents requested that ``legacy system'' be 
defined, with one respondent stating that it should be any system that 
is past Material Development Decision, as the milestone defined in DoD 
Instruction 5000.02.
    DoD Response: A ``legacy system'' means any program that has passed 
Milestone A, as defined in DoD Instruction 5000.02. At the Material 
Development Decision (MDD) stage in the acquisition process, far too 
little is known about a system. The MDD simply indicates that an 
acquisition of a system, equipment, or item will be required to satisfy 
a military capability. Milestone A occurs after the MDD. At Milestone 
A, the system concept has been refined and technology development can 
begin. Milestone A represents a very early stage in the acquisition 
process. Thus, by defining a legacy system as one that has already 
passed Milestone A, it provides a phase-in period for the rule to take 
effect. In other words, the rule affects only new systems that are pre-
Milestone A. This provides a sufficient period, typically two years or 
more, for companies that contract with DoD to make any necessary 
adjustments.
    Comment: Two respondents requested clarification of the term 
``homogeneous material.'' One respondent stated that the definition 
proposed is overly broad and appears to be taken verbatim from the 
European Union Restriction of Hazardous Substances Directive. Another 
respondent suggested that the definition be abandoned as unusable or be 
clarified by naming common types of materials to be considered 
homogeneous and those which should be excluded from the definition.
    DoD Response: The definition of ``homogeneous material'' was 
adopted from the European Union Restriction of Hazardous Substances 
Directive because it is widely understood by industry given the global 
nature of supply chains. The definition was supplemented by providing 
examples to assist the contracting activity and the offeror. The intent 
of the examples is not to be extensive or all inclusive. ``Homogeneous 
material'' means a material that cannot be mechanically disjointed into 
different materials and is of uniform composition throughout. This 
definition can be applied to any material or article in order to 
determine the percent by weight of hexavalent chromium in the material. 
Surface coatings are considered to be a separate homogeneous material 
from the underlying material such as aluminum. The painted aluminum 
article as a whole is not a homogenous material because the paint can 
be mechanically disjointed (sanded or grinded) from the underlying 
aluminum. Also, the paint and aluminum are each of separate, uniform 
compositions. Conversion coatings are not considered homogeneous 
materials because they bond with and chemically modify the underlying 
material and cannot be mechanically disjointed.
    Comment: Two respondents requested that the prohibition of 
hexavalent chromium not apply to ``use'' but only to products that 
``contain'' hexavalent chromium. Two respondents requested that the 
phrase ``or use materials [that contain hexavalent chromium] in 
performance of this contract'' in 252.223-7XXXX (b) be deleted, so that 
the restriction would only apply to deliverables that contain 
hexavalent chromium.
    DoD Response: DFARS 223.7303 was revised to provide clarity that 
hexavalent chromium may be used in manufacturing or testing of an 
article, as long as it will not appear as hexavalent chromium in the 
final product. As an example, in chrome plating, only the metallic form 
of chromium remains. Thus, articles plated with the metal chromium are 
acceptable and the rule will have minimum affect on businesses that 
plate chromium. Based on an industry comment, DoD modified the rule to 
indicate that the ``prohibition does not apply to hexavalent chromium 
produced as a by-product of manufacturing processes'' such as hard 
chrome plating. This was a primary concern of one of the industry 
associations. The phrase ``or use materials in performance of this 
contract'' in paragraph (b) of the clause at 252.223-7XXX has been 
deleted.
    Comment: Two respondents requested clarification of the definitions 
of ``unapproved'' and ``damages'' in paragraph (c) of the clause 
252.223-7XXX.
    DoD Response: Paragraph (c) of the clause 252.223-7XXX was deleted 
in its entirety (see section II.I. of this preamble addressing 
contractor liability).
    Comment: One respondent expressed an opinion that the title of 
proposed DFARS Subpart 223.73 is at variance with other parts of the 
rule. Specifically: ``The proposed subpart 223.73 is entitled 
`Minimizing the use of hexavalent chromium', but paragraphs 223.7302, 
223-7303, and the proposed clause 252.223-7XXX use the term 
`prohibition.' ''
    DoD Response: Review of the rule as a whole does not support a 
finding of a conflict and edits have been made to clarify this. While 
proposed DFARS 223.7302 and the proposed clause at DFARS 252.223-7XXX 
use the term ``prohibition,'' the prohibition exists only where proven 
substitutes are available that provide acceptable performance for the 
application. Consideration of cost effectiveness, technical 
feasibility, corrosion control performance, and other factors described 
in the DoD policy memo must be taken into account. Read in its 
entirety, proposed DFARS Subpart 223.73 and the clause at proposed 
DFARS 252.223-7XXX do not impose an absolute ban on the use of 
hexavalent chromium. Rather, DFARS Subpart 223.73 minimizes the 
incorporation of hexavalent chromium into deliverables to the extent 
practicable, considering all the factors described in the DoD policy 
memo.

B. Limitation to Not More Than 0.1 Percent Hexavalent Chromium

    Comment: One respondent indicated that their products are already 
compliant with the prohibition on hexavalent chromium in the European 
Union Restriction of Hazardous Substances Directive. The respondent

[[Page 25571]]

further noted that trace amounts of hexavalent chromium remain in the 
products but are well below the 0.1% threshold noted in the rule.
    DoD Response: No change in the rule is necessary to address this 
comment. The decision to allow trace amounts of hexavalent chromium of 
less than 0.1 percent is consistent with worldwide standards, including 
Europe's Restriction of Hazardous Substances; thus these products will 
also be compliant with the this rule.
    Comment: One respondent noted that the proposal does not reference 
any background or guidance document for testing for hexavalent chromium 
percent by weight.
    DoD Response: There are a number of test procedures that could be 
used for testing for hexavalent chromium and the choice is dependent on 
the material being tested. Listing test methods is beyond the scope of 
the rule. Providers will have flexibility to choose the test method 
best suited to their application. International standard IEC 62321 
``Determination of levels of six regulated substances (lead, mercury, 
cadmium, hexavalent chromium, polybrominated biphenyls, polybrominated 
diphenyl ethers) is the most widely used and was finalized in May 2009. 
ISO Standard 3613 for metallic and organic coatings was updated in 
November 2010 and is also widely used.

C. Need for the Rule and Adequacy of Current Regulations

    Comment: Three respondents questioned the need for the rule. One 
respondent stated that existing environmental, safety, and health 
regulations provide adequate safeguards. Another stated that it 
considered the rule to be premature without additional study, testing, 
and proof of performance and since it is limited to one federal 
department, it should be withdrawn. Another respondent suggested that 
DoD should consider a phased-in approach.
    DoD Response: The rule will help to facilitate DoD's compliance 
with the requirements established in Executive Orders 13514 and 13423 
to reduce the use of toxic and hazardous substances. In addition, it 
allows for the codification of the policy outlined in the DoD policy 
memo for the acquisition community to effectively implement the 
guidance in contract requirements. This rule is intended for DoD 
program managers and contracting officers by prohibiting the use of a 
DoD specification or solicitation that will result in a deliverable 
containing hexavalent chromium unless authorized by a senior level DoD 
official. This addresses a key complaint from industry that DoD 
specifications are preventing them from eliminating hexavalent chromium 
despite their desire to do so.
    The rule also provides incentive for industry to adopt substitutes 
for hexavalent chromium. The rule has been modified to provide that a 
``legacy system'' means a program that has passed Milestone A in the 
defense acquisition management system, as defined in DoD Instruction 
5000.02, prior to the effective date of the rule. This is an early 
entry point into the defense acquisition system and, as noted in 
section II.A. of this preamble, provides a phasing in of the mandatory 
requirements of the rule for new acquisitions still only in the 
development phases. In regard to the need for further testing, DoD and 
industry have spent years testing substitutes and will continue to do 
so. The DoD policy does not require use of substitutes unless they can 
meet a DoD Manufacturing Readiness Level (MRL) of at least eight. 
Essentially, this means that the substitute has been proven to meet 
performance requirements. An item at MRL eight must have detailed 
designs and/or specifications, proven manufacturing and quality 
processes, and an established and stable supply chain.

D. Cost to Industry and Mission Readiness

    Comment: Seven respondents stated that this rule will increase 
costs but did not provide substantiation. In one case, the respondent 
indicated that ``elimination of hexavalent chromium compounds * * * 
might result in increased level of performance risk and increased 
procurement costs.'' Another respondent referred to an increase in life 
cycle costs but did not appear to account for savings in using safer 
chemicals or the fact that substitutes must perform as well.
    DoD Response: It should be noted that cost-related comments were 
made before revisions in the rule that address the most significant 
concerns such as plating, conversion coatings, and hexavalent chromium 
as a by-product of manufacturing. The final rule will not affect these 
activities. Only one respondent provided an estimate. That estimate is 
instructive and is discussed further below.
    Based on numerous conversations with industry and small businesses, 
DoD believes that the rule will have a positive impact on industry and 
small business profits and, at worst, be revenue neutral over time. Web 
sites maintained under DoD's Strategic Environmental Research and 
Development Program (SERDP) contain briefings describing DoD and 
industry efforts to develop hexavalent chromium substitutes. For 
example, the 2010 SERDP conference had a special session on hexavalent 
chromium minimization. One of the presentations by the Aerospace 
Industries Association described the aerospace industry's minimization 
strategy. (Reference: http://symposium.serdp-estcp.org/Technical-Sessions/2B). The Web site at asetsdefense.org also contains briefings 
and summaries of DoD-industry conferences.
    A number of small businesses have developed non-chromate processes 
but have been hindered in their ability to market these processes to 
DoD by existing DoD specifications. In one example, a small 
manufacturer of fasteners told DoD that they can provide non-chromate 
fasteners that can meet DoD performance requirements but the DoD 
specification calls for chromate and the requiring military office sees 
no reason to change it. The rule will help to remedy this problem. 
Subpart 223.7203 of the rule provides direction for DoD contracting 
officers. It prohibits contracts that include a specification or 
standard that results in a deliverable or construction material 
containing more than 0.1% hexavalent chromium by weight. In another 
example, a small family-run business has developed a non-chromate 
coating for aircraft. While the company has had success with marketing 
the process to commercial airlines and the Air Force, it has had 
limited success DoD-wide. Apparently, further motivation is needed for 
DoD program managers to change existing requirements for use of 
materials containing hexavalent chromium. The rule implements the DoD 
policy memo in the procurement world and will thus increase the 
adoption of this non-chromate coating and similar paints and coatings 
by small businesses DoD-wide. The rule will also help make businesses 
more competitive in the world market. Many large companies are 
requiring suppliers to provide products with a smaller ``environmental 
footprint'' by using lifecycle assessment of human health and 
environmental impacts. For example, over 1800 organizations are now 
reporting their sustainability status under the Global Reporting 
Initiative. (See http://www.globalreporting.org/Home.)
    Non-hexavalent chromium processes should be less costly over the 
lifecycle of the process due to the use of less hazardous materials and 
related control and disposal cost. (See examples of documented cost 
savings in Section III.) The rule was modified so that plating

[[Page 25572]]

and anodizing are not covered by the rule. Thus, capital costs for 
conversions are de minimis. For the most part, compliance with the rule 
will only require switching to non-chromate paints and primers.
    The one respondent that provided an estimate indicated a cost of 
$384,000 to convert to non-hexavalent processes. The company produces 
lightweight shelters for the military and customers that are primarily 
Government agencies. The company's main processes are metal surface 
``cleaning and chemical conversion.'' The rule, as revised, will not 
affect cleaning and chemical conversion (conversion coatings) and thus 
there will be no cost to convert related to these processes. However, 
the respondent's main concern was not the conversion cost but the 
concern that one branch of the military will require a hexavalent 
chromium conversion coating and other branches will require non-
hexavalent conversion coatings. The DoD policy and this rule are 
designed to reduce this problem of maintaining dual systems because 
they will cause DoD-wide changes in specifications to non-hexavalent 
processes. While this rule does not affect the respondent's conversion 
coating process, DoD has other initiatives underway to eliminate 
inconsistent requirements by DoD program managers by modifying DoD-wide 
specifications where hexavalent chromium has been required and suitable 
substitutes are available. As an example, DoD has qualified a non-
hexavalent conversion coating for wide federal use (Reference Military 
Standard MIL-DTL-81706).
    Comment: Four respondents stated that the rule will increase 
lifecycle cost due to less corrosion protection.
    DoD Response: The rule does not necessarily require the use of 
substitutes for hexavalent chromium if lifecycle costs are higher. 
Lifecycle costs must be considered when deciding if proven substitutes 
exist (see factors listed in Section II A. above).
    Many often overlooked costs (e.g., costs associated with the use of 
restrictive protective equipment and related productivity losses, air 
monitoring, reporting, medical surveillance programs, collection and 
treatment systems, and hazardous waste disposal) can be avoided with 
the use of less toxic chemicals.
    Comment: Three respondents stated that the rule will decrease 
corrosion protection thereby adversely impacting mission readiness.
    DoD Response: This rule does not decrease mission readiness as this 
factor must be considered when determining if proven substitutes exist. 
To eliminate any confusion, the factors to be considered have been 
added to DFARS 223.7305.
    Comment: One respondent inquired about the funding strategy for 
research and development.
    DoD Response: This comment is outside of the scope of this case. 
DoD has a robust program for developing and testing substitutes. (See 
the program area ``Weapons Systems and Platforms'' at http://www.serdp.org.)
    Comment: Two respondents recommended that DoD limit review time of 
the waiver to not more than 30 days.
    DoD Response: DoD assumes the respondent meant ``authorization'' 
for the use of hexavalent chromium vice ``waiver.'' DoD program 
managers are establishing efficient procedures for reviewing and 
granting authorizations for programs they manage. Timing for reviews 
and authorizations will depend on the complexity of the system but 
program managers have an incentive to ensure that schedules are not 
adversely affected by the review process.

E. Legacy Systems

    Comment: Three respondents requested clarification of the 
exceptions at DFARS 223.7303 (now 223.7304), regarding the repair or 
replacement of legacy systems.
    DoD Response: The exception for legacy systems has been clarified. 
Legacy system is now defined and an exception has been added for 
sustainment related contracts (e.g., parts and services) for existing 
systems with hexavalent chromium. However, Section 223.7304(a) of the 
rule requires program managers to consider alternatives during system 
modifications, follow-on procurements of legacy systems, or maintenance 
procedure updates if it is deemed feasible and needed to achieve the 
objectives of the DoD policy. Consideration of alternatives will 
require analysis of the factors described in the DoD policy memo.
    Comment: One respondent requested that DoD clarify that there is no 
expectation to sample and analyze legacy systems and their related 
parts, subsystems, and components for the sole purpose of identifying 
hexavalent chromium.
    DoD Response: DFARS does not have a requirement that legacy systems 
and their related parts, subsystems, and components be sampled or 
analyzed for the purpose of identifying hexavalent chromium. Legacy 
systems are clearly excepted from the rule.

F. Exceptions

    Comment: Four respondents requested clarification of the process 
for approval of exemptions.
    DoD Response: Exemption is not a term used in the rule. The 
respondent evidently means the process for obtaining authorizations to 
provide a deliverable or construction material with hexavalent chromium 
as described at DFARS 223.7305. Military departments have established 
or are establishing internal procedures for processing authorizations 
for use of hexavalent chromium. These procedures are necessitated by 
the individual needs of the Service and/or each program office. The 
approval process will be provided as part of the solicitation. It is in 
the best interest of DoD and individual program managers to have 
speedy, efficient processes for handling hexavalent chromium 
authorizations.
    Comment: One respondent noted that it would be difficult to achieve 
the specification requirement under MIL-DTL-38999 for circular 
connectors if hexavalent chromium is removed from the sealer used in 
manufacturing circular connectors, noting that current test data 
suggests that replacing hexavalent chromium with trivalent chromium is 
not effective for circular connectors with cadmium-free plating.
    DoD Response: Given the wide range of applications and the 
longstanding use of hexavalent chromium, DoD recognizes that the 
transition to proven substitutes will take time and recognizes that it 
will need to make exceptions to this rule while adequate alternatives 
continue to be developed. This amendment to the DFARS is one component 
of DoD's overall strategy to minimizing the use of materials containing 
hexavalent chromium in Defense acquisitions. As stated in the DoD 
policy memo, to adequately address the environmental and health 
concerns associated with the use of materials containing hexavalent 
chromium, DoD is going beyond its established hazardous materials 
management processes. In fact, this change to the DFARS specifically 
acknowledges that there may be particular specifications, such as MIL-
DTL-38999, that require case-by-case authorizations for materials that 
contain hexavalent chromium. Section 223.7305 allows the appropriate 
DoD official to authorize the use of materials that contain hexavalent 
chromium when necessary, and if consistent with DoD policy. Any one 
that seeks such an authorization should follow the procedures in the 
DFARS Procedures,

[[Page 25573]]

Guidance, and Information (PGI) at 223.7305.
    Furthermore, DoD appreciates the information regarding the 
performance of circular connectors using trivalent chromium. DoD 
continues to make major investments to minimize the use of hexavalent 
chromium in defense acquisitions. DoD has sponsored efforts that range 
from fundamental research through advanced development to testing and 
evaluation for proven substitutes. As discussed earlier, the Strategic 
Environmental Research and Development Program (SERDP) and the 
Environmental Security Technology Certification Program (ESTCP) sponsor 
the Advanced Surface Engineering Technologies for a Sustainable Defense 
(ASETSDefense), which is a database that facilitates the implementation 
of new, environmentally friendly technologies for surface engineering 
(coatings and surface treatments) by providing ready access to 
background information and technical data from research, development, 
test, and evaluation efforts as well as the status of approvals and 
implementations. This database is continually growing as more documents 
are added, concentrating on coatings that avoid the use of hexavalent 
chromium. DoD will continue these efforts to provide proven substitutes 
for an ever increasing range of applications and materials to foster 
the widespread implementation of alternatives to hexavalent chromium. 
ASETSDefense's relational database is designed with a search capability 
to provide access to the available information needed to make informed 
decisions on the use of alternatives to materials and technologies for 
surface engineering that pose environmental or health hazards. This 
information includes detailed engineering data, background documents, 
and information on processes and products that have been validated, 
authorized, or implemented. For more information and to access the 
database go to: http://www.assetsdefense.org/databasedescription.aspx.
    Comment: One respondent requested an exception for all commercial 
items.
    DoD Response: To provide an exception for all commercial items will 
jeopardize the intent of the rule and be contrary to DoD policy. It is 
the responsibility of the prime contractor to require suppliers to 
provide content information. There is currently a requirement to 
provide content information for articles that contain hazardous 
substances such as hexavalent chromium in Material Safety Data Sheets 
(see FAR 52.223-3, Hazardous Material Identification and Material 
Safety Data).
    Comment: One respondent stated that paragraph (d) of the clause 
requires that the prohibition will always flow down to the 
subcontractor and does not provide for a situation where the 
subcontractor's items qualify for an exemption.
    DoD Response: Similar to change order requests and other types of 
approvals, subcontractors may submit proposals for approvals of 
necessary hexavalent chromium use through the prime contractor for 
approval. Since the clause flows down, the same approval process for 
exemptions applies to the subcontractor as well.
    Comment: One respondent asked if the liability language exempts 
legacy systems/or components.
    DoD Response: The paragraph on liability was deleted from the final 
text of the clause because existing law is sufficient.
    Comment: One respondent stated that data such as cost effectiveness 
and corrosion protection be considered in rendering exemptions.
    DoD Response: The respondent is correct. The DoD policy of April 8, 
2009, contains requirements for weighing hexavalent chromium versus 
substitutes. The following factors, at a minimum, must be considered--
     Cost effectiveness of alternative materials or processes;
     Technical feasibility of alternative materials or 
processes;
     Environment, safety, and occupational health risks 
associated with the use of the hexavalent chromium or substitute 
materials in each specific application;
     Achieving a DoD Manufacturing Readiness Level of at least 
eight (8) for any qualified alternative;
     Materiel availability of hexavalent chromium and the 
proposed alternatives over the projected life span of the system; and
     Corrosion performance difference of alternative materials 
or processes as determined by agency corrosion subject matter experts.
    Section 223.7305 has been revised to include the above factors from 
the DoD policy memo.
    Comment: One respondent inquired if another exception is required 
if an exception has been allowed under the original contract. Another 
respondent asked about exemptions for follow-on procurements, or 
maintenance procedures.
    DoD Response: The rule has an exception for legacy systems, which 
are now defined. An exception has been added for sustainment related 
contracts (e.g., parts, services) for existing systems with hexavalent 
chromium approved.

G. Dollar Threshold

    Comment: One respondent requested that a dollar threshold be 
established for waiver of the rule.
    DoD Response: Cost effectiveness will be considered in deciding 
whether to prohibit hexavalent chromium or authorize a deliverable 
containing hexavalent chromium.

H. Statutes, Regulations, and Government-Wide Application

    Comment: One respondent stated that the rule is contrary to 
existing statutes such as the Resource Conservation and Recovery Act 
(RCRA), which sets strict requirements for manifesting and disposing of 
hazardous waste but does not prohibit use of materials such as 
hexavalent chromium.
    DoD Response: The rule is not contrary to existing statutes. The 
rule is consistent with the 1984 Federal Hazardous and Solid Waste 
Amendments to RCRA that focused on waste minimization. RCRA prescribes 
``that the manifest required by subsection (a)(5) shall contain a 
certification by the generator that the generator of the hazardous 
waste has a program in place to reduce the volume or quantity and 
toxicity of such waste to the degree determined by the generator to be 
economically practicable.''
    Comment: Two respondents stated that the rule is not consistent 
with national and international regulations because laws such as the 
Clean Water Act and the Clean Air Act, and regulations such as OSHA and 
the European Union's Restriction on Hazardous Substances control the 
release of hexavalent chromium but do not prohibit its use.
    DoD Response: As with the referenced statutes and regulations, the 
objective of this rule is the protection of human health and the 
environment while balancing other considerations. Protection of human 
health and the environment has historically been accomplished through 
the reduction of releases and/or managing exposure. This rule reduces 
releases and exposure by minimizing the incorporation of hexavalent 
chromium into products acquired by DoD. The DoD approach to minimizing 
hexavalent chromium does consider factors such as cost effectiveness 
and technical feasibility as described at 223.7305. Since this rule 
does not address the use of hexavalent chromium in the manufacturing 
process or completely ban the use of hexavalent chromium in end items 
delivered to DoD, other statutes and regulations

[[Page 25574]]

addressing releases and managing human exposure will complement this 
rule when hexavalent chromium is used in or is a byproduct of the 
manufacturing process or is incorporated into the end item.
    Comment: One respondent stated that the rule should be applicable 
Governmentwide.
    DoD Response: The rule is only applicable to DoD. It is based on 
the April 8, 2009, policy memorandum, issued by the Under Secretary of 
Defense (AT&L).

I. Contractor Liability

    Comment: Two respondents requested the removal of the liability 
provisions of the clause because existing law is sufficient. These 
respondents stated that the proposed paragraph (c) of 252.223-7XXX 
poses an unreasonable legal and financial risk.
    DoD Response: DoD agrees with the respondents. Existing law is 
sufficient to address any issues regarding deliverables with hexavalent 
chromium. Paragraph (c) of the clause was removed from the final rule.

J. Alternatives, List of Preapproved Products, and Government or Third-
Party Furnished Components

    Comment: One respondent stated that where there are ``viable and 
effective alternatives available,'' the respondent encourages the use 
of such alternatives. The respondent provided trivalent chromium 
processes as an example. Another respondent stated that the prohibition 
clause will ``inadvertently prohibit the use of hexavalent chromium 
solutions that convert to trivalent chromium or other environmentally 
friendly compounds.''
    DoD Response: The rule does not prohibit the use of trivalent 
chromium. The rule is designed to encourage the use of environmentally 
friendly alternatives as authorization is required to use hexavalent 
chromium.
    Comment: Two respondents requested a list or matrix of preapproved 
hexavalent chromium products. One respondent recommended that the 
Government and the contractor manage a list of classes of exemptions 
based on the current state of the art.
    DoD Response: A comprehensive list of applications that are 
approved for the use of hexavalent chromium is not feasible for the 
rule. Such a list will be outdated immediately. However, individual 
solicitations will contain pre-approved uses of hexavalent chromium for 
specific applications where its use is deemed necessary to meet 
performance requirements and/or proven substitutes, considering 
relevant factors, do not exist. DoD program managers will maintain 
lists of pre-approved applications based on the criteria for approving 
substitutes pursuant to the April 8, 2009, memorandum, while taking 
into consideration the current state of art.
    Comment: One respondent stated that contractors may be required to 
incorporate Government-furnished components or equipment in the final 
products assembled. Therefore, the contractor should not be held liable 
or responsible for screening such items if the finished product 
contains hexavalent chromium content in the supplied items from a third 
party or Government.
    DoD Response: If any Government-furnished component contains 
hexavalent chromium, the use will be authorized by the Government. With 
regard to components supplied by a third party to a prime contractor, 
it is the responsibility of the prime contractor to know what 
subcontractors and suppliers provide and comply with the rule. The 
prime contractor should require subcontractors and suppliers to provide 
information regarding the content of hazardous and toxic materials. In 
most cases, Material Safety Data Sheets can be used to provide such 
information.

K. Regulatory Flexibility Analysis

    Comment: Two respondents stated that the rule will have significant 
impact on small entities.
    DoD Response: As mentioned above, since the rule was modified such 
that plating and anodizing are not covered by the rule, capital costs 
for conversions are de minimis. For the most part, compliance with the 
rule will only require switching to non-chromate paints and primers. As 
noted and described more thoroughly in section II.C. of this preamble, 
based on conversations with industry and small businesses, DoD believes 
that the rule will have a positive impact on industry and small 
business profits and at worst, be revenue neutral over time. A number 
of small businesses have developed non-chromate processes but have been 
hindered in their ability to market these processes to DoD by existing 
DoD specifications. The rule will also help make businesses more 
competitive in the world market. Non-hexavalent chromium processes 
should be less costly over the lifecycle of the process due to the use 
of less hazardous materials and related control and disposal costs.
    Comment: Four respondents stated that the rule will increase 
lifecycle cost due to less corrosion protection.
    DoD Response: The rule does not necessarily require the use of 
substitutes for hexavalent chromium if lifecycle costs are higher or if 
performance requirements for corrosion control are not met. As 
described in Section II.E of this preamble, the DoD policy of April 8, 
2009, contains factors for considering substitutes. These factors 
include lifecycle costs.

L. Meeting With Industry and Stakeholders

    Comment: Two respondents recommended that DoD should meet with 
industry and stakeholders prior to proceeding with proposed rule.
    DoD Response: The DoD Strategic Environmental Research and 
Development Program (SERDP) has held and participated in several 
workshops with industry related to the use of hexavalent chromium and 
substitutes. The results of these workshops and related research are 
available on the SERDP Web site at http://www.serdp.org and 
asetsdefense.org). In addition, DoD representatives briefed attendees 
at the 2010 meeting of the National Association for Surface Finishing 
(NASF). DoD also provided a worldwide briefing concerning the rule on a 
Web-cast hosted by the NASF. During the Webcast, no negative comments 
were received (A transcript of the Webcast is available at a cost at 
http://www.nasf.org/staticcontent/Dec14Recording.pdf).

III. Executive Order 12866 and Executive Order 13563

    Executive Orders 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). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule has been designated a ``significant regulatory 
action'' although not economically significant under section 3(f) of 
Executive Order 12866. Accordingly, the rule has been reviewed by the 
Office of Management and Budget. This rule is not a major rule under 5 
U.S.C. 804.

IV. Regulatory Flexibility Act

    DoD certifies that this rule will not have a significant economic 
impact on a substantial number of small entities

[[Page 25575]]

within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et 
seq.
    The rule has been revised to minimize effects on small businesses 
in particular. The rule only affects deliverables that contain greater 
than 0.1% hexavalent chromium, not in-plant hexavalent chromium 
processes or deliverables containing the metal chromium. The rule is 
primarily aimed at coatings. Consequently, the rule has no effect on--
     Conversion coatings;
     Hard chrome plating;
     Chromic acid anodizing;
     Most chromated metallic ceramics; and
     Chromate washes, etches, pickling, etc.
    The primary coatings used by DoD affected by the rule are--
     Chromated primers (for aircraft skins);
     Chromated primers (for components);
     Aircraft fuel tank internal coatings;
     Wet install fastener sealants (used on Naval aircraft);
     Other chromated sealants (used to seal panels, covers, 
electronics, etc.); and
     Chromated metallic-ceramic paints used in turbine engines.
    With respect to deliverables provided to DoD, the above materials 
are used primarily by the large aerospace companies such as--
     Airframe manufacturers;
     Engine manufacturers; and
     Missile and spacecraft manufacturers.
    The suppliers to these large manufacturers will be affected 
primarily by the requirement to supply components painted with non-
chrome primers and chrome-free sealants. Some of these suppliers are 
large corporations but many are small businesses. However, the 
substitution of non-chromated products does not require a capital 
investment but rather a substitution of one coating formulation for 
another. For the most part, the same coating application equipment can 
be used and, as stated earlier, the rule will be positive for many of 
the small businesses that have developed non-hexavalent products.
    Some commercial aerospace companies have already adopted chromate-
free finish systems. This is being accomplished to meet commercial 
client desires for more sustainable products, but it also results in a 
reduction in operating costs. A Boeing press release on the initial 
testing of non-chromate primers on commercial aircraft states:

    ``In addition to simplified health and safety monitoring 
requirements, a chrome-free primer reduces the environmental impact 
of the paint and stripping process. Removing chrome from the paint 
and primer eliminates the need for special handling of paint waste, 
clean up and designated offsite disposal areas.''

    (Reference http://www.boeing.com/apachenews/2009/issue_01/news_s7_p2.html).

    In one military example, significant cost avoidance was achieved by 
eliminating the extensive chromate control requirements involved in 
bonding attach points for wiring on the production line. Meeting the 
federal Permissible Exposure Level (PEL) requirements when using 
chromated primers requires blocking off the area during sanding 
operations, which interferes with all other work and reduces the 
efficiency of the production process.
    The examples below provide evidence that in most cases, companies 
will achieve savings when replacing hexavalent chromium with an 
alternative.
    At one maintenance facility, a side-by-side cost comparison was 
developed for a hexavalent chromium process and a non-hexavalent 
chromium process developed by a small business. The report shows that--
     The non-chromate process replaced three steps which 
dramatically reduced labor costs and also eliminated the need to 
purchase three other chemicals;
     The non-chromate process used \2/3\ less rinse water 
resulting in water and wastewater cost savings and environmental 
benefit;
     There was a significant reduction in hazardous waste 
disposal costs;
     The equipment used for the non-chromate product was the 
same as the standard process (with hexavalent chromium); therefore 
there were no capital costs for the conversion; and
     Less personal protection equipment (PPE) was required when 
converting to the non-chromate process (e.g., full mask, hazardous 
materials suit, respirator cartridges, etc.).
    At another facility, there was a savings of $6,000 per aircraft 
with $1.3 million in documented operational savings at the time of the 
report due to switching to a non-chromate process. The process also 
eliminated 500,000 gallons of wastewater per year.
    A large maintenance facility in Ohio switched to a non-chromate 
process and significantly reduced pollutant discharges, improved worker 
safety, cut process time, and reported savings in excess of $200,000 
just due to reduction in state and federal compliance requirements.
    Another facility reported a savings of approximately $120,000 per 
year in water consumption and treatment costs alone and reduced 
production times by 4,400 man-hours per year.
    Fact sheets and detailed cost and performance reports for numerous 
non-hexavalent chromium processes can be found by searching for 
``hexavalent chromium'' at http://www.serdp-estcp.org.

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 223 and 252

    Government procurement.

Mary Overstreet,
Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 223 and 252 are amended as follows:


0
1. The authority citation for 48 CFR parts 223 and 252 continues to 
read as follows:

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

PART 223--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE 
ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE

0
2. Add subpart 223.73 to read as follows:
Subpart 223.73--Minimizing the Use of Materials Containing Hexavalent 
Chromium
Sec.
223.7300 Definition.
223.7301 Policy.
223.7302 Authorities.
223.7303 Prohibition.
223.7304 Exceptions.
223.7305 Authorization and approval.
223.7306 Contract clause.

Subpart 223.73--Minimizing the Use of Materials Containing 
Hexavalent Chromium


223.7300  Definition.

    Legacy system, as used in this subpart, means any program that has 
passed Milestone A in the defense acquisition management system, as 
defined in DoD Instruction 5000.02.


223.7301  Policy.

    It is DoD policy to minimize hexavalent chromium (an anti-
corrosive) in items acquired by DoD

[[Page 25576]]

(deliverables and construction material), due to the serious human 
health and environmental risks related to its use. Executive Order 
13423, section 3, paragraph (a) requires that the heads of agencies 
reduce or eliminate the acquisition and use of toxic or hazardous 
chemicals. Executive Order 13514 requires that the heads of agencies 
are responsible for ``reducing and minimizing the quantity of toxic and 
hazardous chemicals and materials acquired, used, or disposed of.''


223.7302  Authorities.

    (a) Executive Order 13423 of January 24, 2007, Strengthening 
Federal Environmental, Energy, and Transportation Management.
    (b) Executive Order 13514 of October 5, 2009, Federal Leadership in 
Environmental, Energy, and Economic Performance.


223.7303  Prohibition.

    (a) Except as provided in 223.7304 and 223.7305, no contract may 
include a specification or standard that results in a deliverable or 
construction material containing more than 0.1 percent hexavalent 
chromium by weight in any homogeneous material in the deliverable or 
construction material where proven substitutes are available that 
provide acceptable performance for the application.
    (b) This prohibition is in addition to any imposed by the Clean Air 
Act regardless of the place of performance.


223.7304  Exceptions.

    The prohibition in 223.7303 does not apply to--
    (a) Legacy systems and their related parts, subsystems, and 
components that already contain hexavalent chromium. However, 
alternatives to hexavalent chromium shall be considered by the 
appropriate official during system modifications, follow-on 
procurements of legacy systems, or maintenance procedure updates; and
    (b) Additional sustainment related contracts (e.g., parts, 
services) for a system in which use of hexavalent chromium was 
previously approved.


223.7305  Authorization and approval.

    (a) The prohibition in 223.7303 does not apply to critical defense 
applications if no substitute can meet performance requirements. The 
DoD policy of April 8, 2009, ``Minimizing the Use of Hexavalent 
Chromium,'' contains requirements for weighing hexavalent chromium 
versus substitutes. DoD Program Managers must consider the following 
factors--
    (1) Cost effectiveness of alternative materials or processes;
    (2) Technical feasibility of alternative materials or processes;
    (3) Environment, safety, and occupational health risks associated 
with the use of the hexavalent chromium or substitute materials in each 
specific application;
    (4) Achieving a DoD Manufacturing Readiness Level of at least eight 
for any qualified alternative;
    (5) Materiel availability of hexavalent chromium and the proposed 
alternatives over the projected life span of the system; and
    (6) Corrosion performance difference of alternative materials or 
processes as determined by agency corrosion subject matter experts.
    (b) However, unless an exception in 223.7304 applies, the 
incorporation of hexavalent chromium in items acquired by DoD shall be 
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. Follow the 
procedures in PGI 223.7305.


223.7306  Contract clause.

    Unless an exception in 223.7304 applies, or use has been authorized 
in accordance with 223.7305, use the clause at 252.223-7008, 
Prohibition of Hexavalent Chromium, in solicitations and contracts for 
supplies, maintenance and repair services, or construction.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
3. Add section 252.223-7008 as follows:


252.223-7008  Prohibition of Hexavalent Chromium.

    As prescribed in 223.7306, use the following clause:

Prohibition of Hexavalent Chromium (MAY 2011)

    (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.
    (1) Examples of homogeneous materials include individual types 
of plastics, ceramics, glass, metals, alloys, paper, board, resins, 
and surface coatings.
    (2) Homogeneous material does not include conversion coatings 
that chemically modify the substrate. Mechanically disjointed means 
that the materials can, in principle, be separated by mechanical 
actions such as unscrewing, cutting, crushing, grinding, and 
abrasive processes.
    (b) Prohibition. (1) Unless otherwise specified by the 
Contracting Officer, the Contractor shall not provide any 
deliverable or construction material under this contract that--
    (i) Contains hexavalent chromium in a concentration greater than 
0.1 percent by weight in any homogenous material; or
    (ii) Requires the removal or reapplication of hexavalent 
chromium materials during subsequent sustainment phases of the 
deliverable or construction material.
    (2) This prohibition does not apply to hexavalent chromium 
produced as a by-product of manufacturing processes.
    (c) If authorization for incorporation of hexavalent chromium in 
a deliverable or construction material is required, the Contractor 
shall submit a request to the Contracting Officer.
    (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. 2011-10882 Filed 5-4-11; 8:45 am]
BILLING CODE 5001-08-P