[Federal Register Volume 76, Number 224 (Monday, November 21, 2011)]
[Proposed Rules]
[Pages 71926-71928]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-29861]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 212, 244, and 252

RIN 0750-AH39


Defense Federal Acquisition Regulation Supplement: Applicability 
of Hexavalent Chromium Policy to Commercial Items (DFARS Case 2011-
D047)

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

ACTION: Proposed rule.

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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement to clarify the applicability to commercial items 
of DoD policies relating to the use of materials containing hexavalent 
chromium.

DATES: Comment Date: Comments on the proposed rule should be submitted 
in writing to the address shown below on or before January 20, 2012, to 
be considered in the formation of a final rule.

ADDRESSES: Submit comments identified by DFARS Case 2011-D047, using 
any of the following methods:
    [cir] Regulations.gov: http://www.regulations.gov.
    Submit comments via the Federal eRulemaking portal by inputting 
``DFARS Case 2011-D047'' under the heading ``Enter keyword or ID'' and 
selecting ``Search.'' Select the link ``Submit a Comment'' that 
corresponds with ``DFARS Case 2011-D047.'' Follow the instructions 
provided at the ``Submit a Comment'' screen. Please include your name, 
company name (if any), and ``DFARS Case 2009-D047'' on your attached 
document.
    [cir] Email: [email protected]. Include DFARS Case 2011-D047 in the 
subject line of the message.
    [cir] Fax: 703-602-0350.
    [cir] Mail: Defense Acquisition Regulations System, Attn: Amy G. 
Williams, OUSD (AT&L) DPAP/DARS, Room 3B855, 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. Amy G. Williams, telephone 703-
602-0328.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD published a final rule at in the Federal Register at 76 FR 
25569 on May 5, 2011, to implement in the Defense Federal Acquisition 
Regulation Supplement (DFARS) the DoD policy addressing the serious 
human health and environmental risks related to the use of hexavalent 
chromium. Hexavalent chromium is a chemical that has been used in 
numerous DoD weapons systems platforms due to its corrosion protection 
properties. However, hexavalent chromium is a known carcinogen. The 
final rule minimized the use of materials containing hexavalent 
chromium in items acquired by DoD, including the creation of a new 
DFARS clause, 252.223-7008, Prohibition of Hexavalent Chromium, which 
prohibits the contractor from providing any deliverables or 
construction material that--
    (1) Contains hexavalent chromium in a concentration greater than 
0.1 percent by weight in any homogeneous material; or
    (2) Requires the removal or reapplication of hexavalent chromium 
materials during subsequent sustainment phases of the deliverable or 
construction material.
    The final rule prescribed use of the clause in solicitations and 
contracts for supplies, maintenance and repair services, or 
construction, unless an exception at DFARS 223.7304 applies or use has 
been authorized in accordance with DFARS 223.7305.

II. Discussion and Analysis

    The preamble to the final rule stated the clear intent that the 
rule should apply to commercial items. In response to a respondent who 
requested an exception for all commercial items, DoD stated that to 
provide an exception for all commercial items will jeopardize the 
intent of the rule and be contrary to DoD policy (section II.F.).
    However, although the final rule did not specify an exception for 
commercial items, the rule overlooked the need to separately prescribe 
the clause in part 212 in order to require use of the clause in 
acquisitions conducted under part 212. FAR 12.301(d)(1) states that 
prescriptions contained elsewhere in the FAR do not apply to 
acquisitions under FAR part 12, unless separately included in FAR part 
12.
    Therefore, this rule proposes to correct that oversight and provide 
at

[[Page 71927]]

DFARS 212.301(f) the requirement for use of DFARS 252.223-7008 in 
contracts for the acquisition of commercial items, as prescribed at 
223.7306. In addition, in order to flow the requirement down to 
commercial subcontracts under a noncommercial prime contract, the 
clause DFARS 252.223-7008 must be added to the list of clauses in DFARS 
252.244-7000, Subcontracts for Commercial Items and Commercial 
Components (DoD Contracts).
    In addition, the prescription at DFARS 244.403 for use of 252.244-
7000 was simplified, so that DFARS 244.403 does not require update 
every time a clause is added to the list in 252.244-7000 for flow down 
to subcontracts for commercial items. Further, 252.244-7000 states that 
the listed clauses shall flow down when applicable. This rule augments 
the list of clauses in 252.244-7000 with indication of the conditions 
of applicability for each clause.

III. Executive Orders 1286 and 13565

    Executive Orders (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 a significant regulatory action and, therefore, was 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.

IV. 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 this rule is 
just correcting a drafting oversight in the rule published on May 5, 
2011. DoD certified that that rule would not have a significant 
economic impact on a substantial number of small entities. Therefore, 
an initial regulatory flexibility analysis has not been performed. 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 201X-D047), in 
correspondence.

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 Part 212, 244, and 252

    Government procurement.

Mary Overstreet,
Editor, Defense Acquisition Regulation Supplement.

    Therefore DoD proposes to amend 48 CFR parts 212, 244, and 252 as 
follows:
    1. The authority citation for 48 CFR parts 212, 244, and 252 
continues to read as follows:

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

PART 212--ACQUISITION OF COMMERCIAL ITEMS

    2. Amend section 212.301 by--
    (a) Redesignating paragraphs (f)(iv)(E) through (L) as paragraphs 
(f)(iv)(F) through (M); and
    (b) Adding new paragraph (f)(iv)(E) to read as follows:


212.301  Solicitation provisions and contract clauses for the 
acquisition of commercial items.

* * * * *
    (E) Use the clause at 252.223-7008, Prohibition of Hexavalent 
Chromium, as prescribed at 223.7306.
* * * * *

PART 244--SUBCONTRACTING POLICIES AND PROCEDURES

    3. Revise section 244.403 to read as follows:


244.403  Contract clause.

    Use the clause at 252.244-7000, Subcontracts for Commercial Items 
and Commercial Components (DoD Contracts), in solicitations and 
contracts for supplies or services other than commercial items that 
contain any of the clauses listed in the clause at 252.244-7000.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    4. Revise section 252.244-7000 to read as follows:


252.244-7000  Subcontracts for Commercial Items and Commercial 
Components (DoD Contracts).

    As prescribed in 244.403, use the following clause:

SUBCONTRACTS FOR COMMERCIAL ITEMS AND COMMERCIAL COMPONENTS (DOD 
CONTRACTS) (DATE)

    In addition to the clauses listed in paragraph (c) of the 
Subcontracts for Commercial Items clause of this contract (Federal 
Acquisition Regulation 52.244-6), the Contractor shall include the 
terms of the following clauses, if applicable, in subcontracts for 
commercial items or commercial components, awarded at any tier under 
this contract:
    (a) 252.223-7008, Prohibition of Hexavalent Chromium, if the 
subcontract is for supplies, maintenance and repair services, or 
construction materials.
    (b) 252.225-7009, Restriction on Acquisition of Certain Articles 
Containing Specialty Metals (JAN 2011) (10 U.S.C. 2533b), if flow 
down is required in accordance with paragraph (e) of DFARS clause 
252.225-7009.
    (c) 252.225-7039, Contractors Performing Private Security 
Functions (AUG 2011) (Section 862 of Pub. L. 110-181, as amended by 
section 853 of Pub. L. 110-417 and sections 831 and 832 of Pub. L. 
111-383), if the subcontract will be performed in areas of 
contingency operations, complex contingency operations, or other 
military operations or exercises designated by the Combatant 
Commander.
    (d) 252.227-7015, Technical Data--Commercial Items (SEP 2011), 
if applicable (see 227.7102-4(a)), if flow down is required in 
accordance with paragraph (e) of DFARS clause 252.227-7015.
    (e) 252.227-7037, Validation of Restrictive Markings on 
Technical Data (SEP 2011), if applicable (see 227.7102-4(c)), if the 
subcontract or supplier at any tier requires the delivery of 
technical data.
    (f) 252.236-7013 Requirement for Competition Opportunity for 
American Steel Producers, Fabricators, and Manufacturers (JAN 2009) 
(Pub. L. 110-329, Division E, Section 108), if the subcontract 
involves the acquisition of steel as a construction material.
    (g) 252.237-7010 Prohibition on Interrogation of Detainees by 
Contractor Personnel (NOV 2010) (Section 1038 of Pub. L. 111-84), if 
the subcontract may require subcontractor personnel to interact with 
detainees in the course of their duties.
    (h) 252.237-7019 Training for Contractor Personnel Interacting 
with Detainees (SEP 2006) (Section 1092 of Pub. L. 108-375), if the 
subcontract may require subcontractor personnel to interact with 
detainees in the course of their duties.
    (i) 252.246-7003 Notification of Potential Safety Issues (JAN 
2007), if flow down is required in accordance with paragraph (f) of 
DFARS clause 252.246-7003.
    (j) 252.247-7023 Transportation of Supplies by Sea (MAY 2002) 
(10 U.S.C. 2631), if flow down is required in accordance

[[Page 71928]]

with paragraph (h) of DFARS clause 252.247-7023.
    (k) 252.247-7024 Notification of Transportation of Supplies by 
Sea (MAR 2000) (10 U.S.C. 2631), if flow down is required in 
accordance with paragraph (b) of DFARS clause 252.247-7024.

(End of clause)

[FR Doc. 2011-29861 Filed 11-18-11; 8:45 am]
BILLING CODE 5001-06-P