[Federal Register Volume 85, Number 226 (Monday, November 23, 2020)]
[Proposed Rules]
[Pages 74639-74640]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25431]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Part 223
[Docket DARS-2020-0045]
RIN 0750-AL17
Defense Federal Acquisition Regulation Supplement: Authorities
for Minimizing the Use of Materials Containing Hexavalent Chromium
(DFARS Case 2020-D031)
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 (DFARS) to remove references to revoked Executive
Orders related to minimizing the use of materials containing hexavalent
chromium.
DATES: Comments on the proposed rule should be submitted in writing to
the address shown below on or before January 22, 2021, to be considered
in the formation of the final rule.
ADDRESSES: Submit comments identified by DFARS Case 2020-D031, using
any of the following methods:
[cir] Federal eRulemaking Portal: http://www.regulations.gov.
Search for ``DFARS Case 2020-D031.'' Select ``Comment Now'' and follow
the instructions to submit a comment. Please include your name, company
name (if any), and ``DFARS Case 2020-D031'' on any attached document.
[cir] Email: [email protected]. Include DFARS Case 2020-D031 in
the subject line of the message.
[cir] Mail: Defense Acquisition Regulations System, Attn: Ms.
Kimberly R. Ziegler, OUSD(A&S)DPC/DARS, Room 3B938, 3060 Defense
Pentagon, Washington, DC 20301-3060.
Instructions: 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. Kimberly R. Ziegler, telephone
571-372-6095.
SUPPLEMENTARY INFORMATION:
I. Background
This rule proposes to amend the DFARS to remove references to
Executive Order (E.O.) 13423, Strengthening Federal Environmental,
Energy, and Transportation Management, and E.O. 13514, Federal
Leadership in Environmental, Energy, and Economic Performance, as the
authorities for the policy at DFARS subpart 223.73, Minimizing the Use
of Materials Containing Hexavalent Chromium. Both E.O. 13423 and E.O.
13514 were revoked by E.O. 13693, Planning for Federal Sustainability
in the Next Decade, which was later revoked by E.O. 13834, Efficient
Federal Operations (83 FR 23771, May 22, 2018). However, the removal of
these references will not impact DoD's policies and procedures for
minimizing the use of hexavalent chromium, a known carcinogen, still
used in some DoD weapon systems and platforms due to its corrosion
protection properties.
On May 5, 2011, DoD issued a final rule, Minimizing the Use of
Materials Containing Hexavalent Chromium (DFARS Case 2009-D004) (76 FR
25569), which amended the DFARS to implement requirements for
minimizing the use of materials containing hexavalent chromium in items
acquired by DoD pursuant to an Under Secretary of Defense (Acquisition,
Technology, and Logistics) policy memorandum dated April 8, 2009. The
final rule codified internal procedures for addressing the serious
human health and environmental risks related to the use of hexavalent
chromium and prohibited 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. While this rule removes references to the revoked
E.O.s, there is no change to the DoD policy implemented under the prior
DFARS rule.
II. Discussion and Analysis
The policy related to minimizing the use of materials containing
hexavalent chromium is implemented in DFARS subpart 223.73. This rule
proposes to remove references to E.O. 13423 and E.O. 13514 in the
authorities section at DFARS 223.7302. In addition, this rule proposes
to amend the policy section at DFARS 223.7301 to cite the DoD policy
memorandum, dated April 8, 2009, as the source for the policy
implemented in the DFARS. There are no changes proposed to the
requirements of DFARS subpart 223.73 or the associated contract clause
at DFARS 252.223-7008, Prohibition of Hexavalent Chromium. Therefore,
there will be no impact to contracting officers or contractors as a
result of this rule.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold and for Commercial Items, Including Commercially Available
Off-the-Shelf Items
This proposed rule does not create any new provisions or clauses,
nor does it change the applicability of any existing provisions or
clauses included in solicitations and contracts valued at or below the
simplified acquisition threshold, or for commercial items, including
commercially available off-the-shelf items.
IV. 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.
V. Executive Order 13771
The rule is not anticipated to be subject to E.O. 13771, because
this rule is not a significant regulatory action under E.O. 12866.
VI. 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 this rule maintains the current policies, procedures, and
contract clause. However, an initial regulatory flexibility analysis
has been performed and is summarized as follows:
This rule proposes to amend the DFARS to remove references to
Executive Order (E.O.) 13423, Strengthening Federal Environmental,
Energy, and Transportation Management; and E.O. 13514, Federal
Leadership in Environmental, Energy, and Economic Performance, which
were
[[Page 74640]]
revoked by E.O. 13693, Planning for Federal Sustainability in the Next
Decade. E.O. 13693, was later revoked by E.O. 13834, Efficient Federal
Operations (83 FR 23771, May 22, 2018). The rule proposes to replace
references to the revoked E.O.s with a reference to the DoD policy
memorandum, dated April 8, 2009, Minimizing the use of Materials
Containing Hexavalent Chromium.
The objective of the case is to remove two revoked E.O.s, while
maintaining current DoD policies and procedures for minimizing the use
of materials containing hexavalent chromium.
Data generated from the Electronic Data Access system for fiscal
years 2017 through 2019, indicates that DoD has awarded an average of
99,832 contracts containing DFARS clause 252.223-7008, Prohibition of
Hexavalent Chromium, to approximately 14,777 unique entities per year,
of which 70,470 contracts were awarded to 10,868 unique small entities
(74 percent).
The rule does not impose any new reporting, recordkeeping, or
compliance requirements. The requirements of DFARS clause 252.223-7008
remain unchanged; therefore, this rule is not expected to affect
significant numbers of small business concerns.
The rule does not duplicate, overlap, or conflict with any other
Federal rules.
There are no significant alternatives that will accomplish the
objective of this rule.
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 the 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 2020-D031), in
correspondence.
VII. 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 223
Government procurement.
Jennifer D. Johnson,
Regulatory Control Officer, Defense Acquisition Regulations System.
Therefore, 48 CFR 223 is proposed to be amended as follows:
PART 223--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE
ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE
0
1. The authority citation for 48 CFR part 223 continues to read as
follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
0
2. Revise section 223.7301 to read as follows:
223.7301 Policy.
In accordance with the DoD policy memorandum of April 8, 2009,
Minimizing the Use of Hexavalent Chromium, it is DoD policy to minimize
hexavalent chromium (an anti-corrosive) in items acquired by DoD
(deliverables and construction material), due to the serious human
health and environmental risks related to its use.
223.7302 [Removed and Reserved]
0
3. Remove and reserve section 223.7302.
[FR Doc. 2020-25431 Filed 11-20-20; 8:45 am]
BILLING CODE 5001-06-P