[Federal Register Volume 79, Number 189 (Tuesday, September 30, 2014)]
[Rules and Regulations]
[Pages 58697-58699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-22847]



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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 223 and 252

RIN 0750-AI07


Defense Federal Acquisition Regulation Supplement: Storage, 
Treatment, and Disposal of Toxic or Hazardous Materials--Statutory 
Update (DFARS Case 2013-D013)

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

ACTION: Final rule.

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SUMMARY: DoD is issuing a final rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to conform with statute, 
amend the clause prescriptions, and update the basic and alternate 
clause for the prohibition on storage, treatment, and disposal of toxic 
or hazardous materials.

DATES: Effective September 30, 2014.

FOR FURTHER INFORMATION CONTACT: Ms. Lee Renna, telephone 571-372-6095.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD published a proposed rule in the Federal Register at 79 FR 4648 
on January 29, 2014, to amend DFARS subpart 223.71 and the associated 
clause 252.223-7006, Prohibition on Storage, Treatment, and Disposal of 
Toxic or Hazardous Materials. No public comments were submitted in 
response to the proposed rule.

II. Discussion and Analysis

    This final rule amends DFARS subpart 223.71 to better align the 
DFARS with the current provisions set forth in 10 U.S.C. 2692 
concerning storage, treatment, and disposal of nondefense toxic and 
hazardous materials. Additionally, the contract clause at 252.223-7006 
is reformatted to facilitate the use of automated contract writing 
systems for clauses with alternates.

III. Executive Orders 12866 and 13563

    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 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.

IV. Regulatory Flexibility Act

    A final regulatory flexibility analysis has been prepared 
consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., 
and is summarized as follows:
    This final rule amends the Defense Federal Acquisition Regulation 
Supplement (DFARS) to conform the DFARS with the statute (10 U.S.C. 
2692) regarding the storage, treatment, or disposal of toxic or 
hazardous materials not owned by DoD on DoD installations. The rule 
also applies the new paradigm for clauses with alternates to facilitate 
the use of automated contract writing systems.
    No comments were received from the public in response to the 
initial regulatory flexibility analysis.
    This rule affects contractors and subcontractors performing 
contracts that involve the storage, treatment, or disposal of toxic or 
hazardous materials not owned by DoD on a DoD installation. The Federal 
Procurement Data System does not provide identification of how many 
contractors and subcontractors (whether large or small) may be 
affected.
    This rule does not add any new information collection, reporting, 
or record keeping requirements. No alternatives were identified that 
will accomplish the objectives of the rule.

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.

Manuel Quinones,
Editor, Defense Acquisition Regulations System.

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

0
1. The authority citation for 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. Revise subpart 223.71 to read as follows:
Subpart 223.71--Storage, Treatment, and Disposal of Toxic or Hazardous 
Materials
Sec.
223.7101 Definitions.
223.7102 Policy.
223.7103 Procedures.
223.7104 Exceptions.
223.7105 Reimbursement.
223.7106 Contract clause.

Subpart 223.71--Storage, Treatment, and Disposal of Toxic or 
Hazardous Materials


223.7101  Definitions.

    As used in this subpart, the terms storage and toxic or hazardous 
materials are defined in the clause at 252.223-7006, Prohibition on 
Storage, Treatment, and Disposal of Toxic or Hazardous Materials.


223.7102  Policy.

    (a) 10 U.S.C. 2692 prohibits storage, treatment, or disposal on DoD 
installations of toxic or hazardous materials that are not owned either 
by DoD or by a member of the armed forces (or a dependent of the 
member) assigned to or provided military housing on the installation, 
unless an exception in 223.7104 applies.
    (b) When storage of toxic or hazardous materials is authorized 
based on an imminent danger, the storage provided shall be temporary 
and shall cease once the imminent danger no longer exists. In all other 
cases of storage or disposal, the storage or disposal shall be 
terminated as determined by the Secretary of Defense.


223.7103  Procedures.

    (a)(1) Storage, treatment, or disposal of toxic or hazardous 
materials not owned by DoD on a DoD installation is prohibited unless--
    (i) One or more of the exceptions set forth in 223.7104(a) is met 
including requisite approvals; or
    (ii) Secretary of Defense authorization is obtained under the 
conditions set forth in 223.7104(b).
    (2) When storage, treatment, or disposal of toxic or hazardous 
materials not owned by DoD is authorized in accordance with this 
subpart, the contract shall specify the types and quantities of toxic 
or hazardous materials that may be temporarily stored, treated, or 
disposed of in

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connection with the contract or as a result of the authorized use of a 
DoD facility or space launch facility. All solicitations and contracts 
shall specify the conditions under which storage, treatment, or 
disposal is authorized.
    (b) If the contracting officer is uncertain as to whether 
particular activities are prohibited or fall under one of the 
exceptions in 223.7104, the contracting officer should seek advice from 
the cognizant office of counsel.


223.7104  Exceptions.

    (a) The prohibition of 10 U.S.C. 2692 does not apply to any of the 
following:
    (1) The storage, treatment, or disposal of materials that will be 
or have been used in connection with an activity of DoD or in 
connection with a service to be performed on a DoD installation for the 
benefit of DoD.
    (2) The storage of strategic and critical materials in the National 
Defense Stockpile under an agreement for such storage with the 
Administrator of General Services Administration.
    (3) The temporary storage or disposal of explosives in order to 
protect the public or to assist agencies responsible for Federal, 
State, or local law enforcement in storing or disposing of explosives 
when no alternative solution is available, if such storage or disposal 
is made in accordance with an agreement between the Secretary of 
Defense and the head of the Federal, State, or local agency concerned.
    (4) The temporary storage or disposal of explosives in order to 
provide emergency lifesaving assistance to civil authorities.
    (5) The disposal of excess explosives produced under a DoD 
contract, if the head of the military department concerned determines, 
in each case, that an alternative feasible means of disposal is not 
available to the contractor, taking into consideration public safety, 
available resources of the contractor, and national defense production 
requirements.
    (6) The temporary storage of nuclear materials or nonnuclear 
classified materials in accordance with an agreement with the Secretary 
of Energy.
    (7) The storage of materials that constitute military resources 
intended to be used during peacetime civil emergencies in accordance 
with applicable DoD regulations.
    (8) The temporary storage of materials of other Federal agencies in 
order to provide assistance and refuge for commercial carriers of such 
material during a transportation emergency.
    (9) The storage of any material that is not owned by DoD, if the 
Secretary of the military department concerned determines that the 
material is required or generated in connection with the authorized and 
compatible use of a facility of DoD, including the use of such a 
facility for testing material or training personnel.
    (10) The treatment and disposal of any toxic or hazardous materials 
not owned by DoD, if the Secretary of the military department concerned 
determines that the material is required or generated in connection 
with the authorized and compatible use of a facility of that military 
department and the Secretary enters into a contract or agreement with 
the prospective user that--
    (i) Is consistent with the best interest of national defense and 
environmental security; and
    (ii) Provides for the prospective user's continued financial and 
environmental responsibility and liability with regard to the material.
    (11) The storage of any material that is not owned by DoD if the 
Secretary of the military department concerned determines that the 
material is required or generated in connection with the use of a space 
launch facility located on a DoD installation or on other land 
controlled by the United States.
    (b) The Secretary of Defense may grant an exception to the 
prohibition in 10 U.S.C. 2692 when essential to protect the health and 
safety of the public from imminent danger if the Secretary otherwise 
determines the exception is essential and if the storage or disposal 
authorized does not compete with private enterprise.


223.7105  Reimbursement.

    The Secretary of Defense may assess a charge for any storage or 
disposal provided under this subpart. If a charge is to be assessed, 
then such assessment shall be identified in the contract with payment 
to the Government on a reimbursable cost basis.


223.7106  Contract clause.

    Use the basic or the alternate of the clause at 252.223-7006, 
Prohibition on Storage, Treatment, and Disposal of Toxic or Hazardous 
Materials, in all solicitations and contracts which require, may 
require, or permit contractor access to a DoD installation.
    (a) Use the basic clause, unless a determination is made under 
223.7104(a)(10).
    (b) Use the alternate I clause when the Secretary of the military 
department issues a determination under the exception at 
223.7104(a)(10).

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
3. Section 252.223-7006 is revised to read as follows:


252.223-7006  Prohibition on Storage, Treatment, and Disposal of Toxic 
or Hazardous Materials.

    As prescribed in 223.7106, use the basic clause or its alternate:
    Basic. As prescribed at 223.7106(a), use the following clause.

PROHIBITION ON STORAGE, TREATMENT, AND DISPOSAL OF TOXIC OR HAZARDOUS 
MATERIALS--BASIC (SEP 2014)

    (a) Definitions. As used in this clause--
    Storage means a non-transitory, semi-permanent or permanent 
holding, placement, or leaving of material. It does not include a 
temporary accumulation of a limited quantity of a material used in 
or a waste generated or resulting from authorized activities, such 
as servicing, maintenance, or repair of Department of Defense (DoD) 
items, equipment, or facilities.
    Toxic or hazardous materials means--
    (i) Materials referred to in section 101(14) of the 
Comprehensive Environmental Response, Compensation, and Liability 
Act (CERCLA) of 1980 (42 U.S.C. 9601(14)) and materials designated 
under section 102 of CERCLA (42 U.S.C. 9602) (40 CFR Part 302);
    (ii) Materials that are of an explosive, flammable, or 
pyrotechnic nature; or
    (iii) Materials otherwise identified by the Secretary of Defense 
as specified in DoD regulations.
    (b) In accordance with 10 U.S.C. 2692, the Contractor is 
prohibited from storing, treating, or disposing of toxic or 
hazardous materials not owned by DoD on a DoD installation, except 
to the extent authorized by a statutory exception to 10 U.S.C. 2692 
or as authorized by the Secretary of Defense. A charge may be 
assessed for any storage or disposal authorized under any of the 
exceptions to 10 U.S.C. 2692. If a charge is to be assessed, then 
such assessment shall be identified elsewhere in the contract with 
payment to the Government on a reimbursable cost basis.
    (c) The Contractor shall include the substance of this clause, 
including this paragraph (c), in all subcontracts that require, may 
require, or permit a subcontractor access to a DoD installation, at 
any subcontract tier.


(End of clause)
    Alternate I. As prescribed in 223.7106(b), use the following 
clause, which adds a new paragraph (c) and revises and redesignates 
paragraph (c) of the basic clause as paragraph (d).

PROHIBITION ON STORAGE, TREATMENT, AND DISPOSAL OF TOXIC OR HAZARDOUS 
MATERIALS--ALTERNATE I (SEP 2014)

    (a) Definitions. As used in this clause--

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    Storage means a non-transitory, semi-permanent or permanent 
holding, placement, or leaving of material. It does not include a 
temporary accumulation of a limited quantity of a material used in 
or a waste generated or resulting from authorized activities, such 
as servicing, maintenance, or repair of Department of Defense (DoD) 
items, equipment, or facilities.
    Toxic or hazardous materials means--
    (i) Materials referred to in section 101(14) of the 
Comprehensive Environmental Response, Compensation, and Liability 
Act (CERCLA) of 1980 (42 U.S.C. 9601(14)) and materials designated 
under section 102 of CERCLA (42 U.S.C. 9602) (40 CFR Part 302);
    (ii) Materials that are of an explosive, flammable, or 
pyrotechnic nature; or
    (iii) Materials otherwise identified by the Secretary of Defense 
as specified in DoD regulations.
    (b) In accordance with 10 U.S.C. 2692, the Contractor is 
prohibited from storing, treating, or disposing of toxic or 
hazardous materials not owned by DoD on a DoD installation, except 
to the extent authorized by a statutory exception to 10 U.S.C. 2692 
or as authorized by the Secretary of Defense. A charge may be 
assessed for any storage or disposal authorized under any of the 
exceptions to 10 U.S.C. 2692. If a charge is to be assessed, then 
such assessment shall be identified elsewhere in the contract with 
payment to the Government on a reimbursable cost basis.
    (c) With respect to treatment or disposal authorized pursuant to 
DFARS 223.7104(10) (10 U.S.C. 2692(b)(10), and notwithstanding any 
other provision of the contract, the Contractor assumes all 
financial and environmental responsibility and liability resulting 
from any treatment or disposal of toxic or hazardous materials not 
owned by DoD on a military installation. The Contractor shall 
indemnify, defend, and hold the Government harmless for all costs, 
liability, or penalties resulting from the Contractor's treatment or 
disposal of toxic or hazardous materials not owned by DoD on a 
military installation.
    (d) The Contractor shall include the substance of this clause, 
including this paragraph (d), in all subcontracts that require, may 
require, or permit a subcontractor access to a DoD installation, at 
any tier. Inclusion of the substance of this clause in subcontracts 
does not relieve the prime Contractor of liability to the Government 
under paragraph (c) of this clause.

(End of clause)

[FR Doc. 2014-22847 Filed 9-29-14; 8:45 am]
BILLING CODE 5001-06-P