[Federal Register Volume 89, Number 158 (Thursday, August 15, 2024)]
[Rules and Regulations]
[Pages 66283-66285]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18108]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 211, 212, 223, 226, and 252

[Docket DARS-2024-0026]
RIN 0750-AM21


Defense Federal Acquisition Regulation Supplement: Sustainable 
Procurement (DFARS Case 2024-D024)

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 align the DFARS with 
changes made to the Federal Acquisition Regulation.

DATES: Effective August 15, 2024.

FOR FURTHER INFORMATION CONTACT: David Johnson, telephone 202-913-5764.

SUPPLEMENTARY INFORMATION:

I. Background

    This final rule revises the DFARS to align it with changes made to 
the Federal Acquisition Regulation (FAR). FAR Case 2022-006, published 
in the Federal Register on April 22, 2024, at 89 FR 30210, reorganized 
and updated FAR part 23. Changes included consolidation of content into 
particular subparts within part 23 and renaming part 23 along with some 
of its subparts. FAR Case 2022-006 also moved nonenvironmental matters, 
to include requirements for a drug-free workplace, from FAR part 23 to 
part 26.
    To align the DFARS with the FAR, this final rule implements 
corresponding changes to the DFARS. This rule changes the title of 
DFARS part 223 to ``Environment, Sustainable Acquisition, and Material 
Safety'' and the title of subpart 223.3 to ``Hazardous Material 
Identification, Material Safety Data, and Notice of Radioactive 
Materials.'' This rule adds subpart 223.1, Sustainable Products and 
Services, and moves the content from subparts 223.4 and 223.8 to the 
newly added subpart 223.1. It moves the content of subpart 223.5, Drug-
Free Workplace, to newly added subpart 226.5, Drug-Free Workplace. 
Consequently, this rule also relocates the contract clause at DFARS 
252.223-7004, Drug-Free Work Force, to DFARS 252.226-7003, Drug-Free 
Work Force.
    As a result of this reorganization, and to correspond to changes in 
the FAR, this rule renumbers or revises the headings of certain DFARS 
paragraphs. In addition, editorial changes are made in 252.226-7003, 
paragraph (a), to conform with drafting conventions for definitions.
    None of the changes in this rule affect the DFARS substantively. 
This rule does not alter policy or requirements stated in the DFARS.

II. Publication of This Final Rule for Public Comment Is Not Required 
by Statute

    The statute that applies to the publication of the FAR is 41 U.S.C. 
1707, Publication of Proposed Regulations. Subsection (a)(1) of the 
statute requires that a procurement policy, regulation, procedure, or 
form (including an amendment or modification thereof) must be published 
for public comment if it relates to the expenditure of appropriated 
funds, and has either a significant effect beyond the internal 
operating procedures of the agency issuing the policy, regulation, 
procedure, or form, or has a significant cost or administrative impact 
on contractors or offerors. This final rule is not required to be 
published for public comment because it only renames an existing DFARS 
part and existing subparts, and relocates DFARS subparts and 
paragraphs, to align the DFARS with changes made in the FAR. None of 
these changes to the DFARS are substantive.

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold (SAT), for Commercial Products (Including Commercially 
Available Off-the-Shelf (COTS) Items), and for Commercial Services

    This final rule does not create any new solicitation provisions or 
contract clauses. It merely relocates an existing clause from DFARS 
252.223-7004, Drug-Free Work Force, to DFARS 252.226-7003, Drug-Free 
Work Force, without substantive change. The rule does not impact the 
applicability of any existing solicitation provisions or contract 
clauses to contracts valued at or below the simplified acquisition 
threshold, for commercial products including COTS items, or for 
commercial services.

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, as amended.

V. Congressional Review Act

    As required by the Congressional Review Act (5 U.S.C. 801-808) 
before an interim or final rule takes effect, DoD will submit a copy of 
the interim or final rule with the form, Submission of Federal Rules 
under the Congressional Review Act, to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States. A 
major rule under the Congressional Review Act cannot take effect until 
60 days after it is published in the Federal Register. The Office of 
Information and Regulatory Affairs has determined that this rule is not 
a major rule as defined by 5 U.S.C. 804.

VI. Regulatory Flexibility Act

    The Regulatory Flexibility Act does not apply to this rule because 
this final rule does not constitute a significant DFARS revision within 
the meaning of FAR 1.501-1, and 41 U.S.C. 1707 does not require 
publication for public comment.

[[Page 66284]]

VII. Paperwork Reduction Act

    This final 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 211, 212, 223, 226, and 252

    Government procurement.

Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.

    Therefore, the Defense Acquisition Regulations System amends 48 CFR 
parts 211, 212, 223, 226, and 252 as follows:

0
1. The authority citation for 48 CFR parts 211, 212, 223, 226, and 252 
continues to read as follows:

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

PART 211--DESCRIBING AGENCY NEEDS


211.271  [Amended]

0
2. Amend section 211.271 by removing ``subpart 223.8'' and adding 
``223.107-4'' in its place.

PART 212--ACQUISITION OF COMMERCIAL PRODUCTS AND COMMERCIAL 
SERVICES

0
3. Amend section 212.301 by revising the heading of paragraph (f)(ix) 
introductory text to read as follows:


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

* * * * *
    (f) * * *
    (ix) Part 223--Environment, Sustainable Acquisition, and Material 
Safety. * * *
* * * * *

PART 223--ENVIRONMENT, SUSTAINABLE ACQUISITION, AND MATERIAL SAFETY

0
4. Revise the heading for part 223 to read as set forth above.

0
5. Add subpart 223.1 to read as follows:
Subpart 223.1--Sustainable Products and Services
Sec.
223.107-1 Products containing recovered materials.
223.107-4 Products that contain, use, or are manufactured with 
ozone-depleting substances or products that contain or use high 
global warming potential hydrofluorocarbons.

Subpart 223.1--Sustainable Products and Services


223.107-1  Products containing recovered materials.

    (e) Procedures. Follow the procedures at PGI 223.107-1(e).


223.107-4  Products that contain, use, or are manufactured with ozone-
depleting substances or products that contain or use high global 
warming potential hydrofluorocarbons.

    No DoD contract may include a specification or standard that 
requires the use of a class I ozone-depleting substance or that can be 
met only through the use of such a substance unless the inclusion of 
the specification or standard is specifically authorized at a level no 
lower than a general or flag officer or a member of the Senior 
Executive Service of the requiring activity in accordance with section 
326, Public Law 102-484 (10 U.S.C. 3201 note prec.). This restriction 
is in addition to any imposed by the Clean Air Act and applies after 
June 1, 1993, to all DoD contracts, regardless of place of performance.

0
6. Revise the heading for subpart 223.3 to read as follows:

Subpart 223.3--Hazardous Material Identification, Material Safety 
Data, and Notice of Radioactive Materials

0
7. Amend section 223.302 by revising the section heading to read as 
follows:


223.302  Hazardous material identification and notice of material 
safety data.

* * * * *


223.303  [Redesignated as 223.304]

0
8. Redesignate section 223.303 as section 223.304.


223.304  [Amended]

0
9. Amend newly redesignated section 223.304 by revising the section 
heading to read as follows:


223.304  Contract clauses.

* * * * *

Subpart 223.4 [Removed and Reserved]

0
10. Remove and reserve subpart 223.4, consisting of section 223.405.


Subpart 223.5  [Removed and Reserved]

0
11. Remove and reserve subpart 223.5, consisting of sections 223.570, 
223.570-1, and 223.570-2.

Subpart 223.8 [223 Removed]

0
12. Remove subpart 223.8, consisting of section 223.802.

PART 226--OTHER SOCIOECONOMIC PROGRAMS

0
13. Add subpart 226.5 to read as follows:
Subpart 226.5--Drug-Free Workplace
Sec.
226.570 Drug-free work force.
226.570-1 Policy.
226.570-2 Contract clause.

Subpart 226.5--Drug-Free Workplace


226.570  Drug-free work force.


226.570-1  Policy.

    DoD policy is to ensure that its contractors maintain a program for 
achieving a drug-free work force.


226.570-2  Contract clause.

    (a) Use the clause at 252.226-7003, Drug-Free Work Force, in all 
solicitations and contracts--
    (1) That involve access to classified information; or
    (2) When the contracting officer determines that the clause is 
necessary for reasons of national security or for the purpose of 
protecting the health or safety of those using or affected by the 
product of, or performance of, the contract.
    (b) Do not use the clause in solicitations and contracts--
    (1) For commercial products and commercial services;
    (2) When performance or partial performance will be outside the 
United States and its outlying areas, unless the contracting officer 
determines such inclusion to be in the best interest of the Government; 
or
    (3) When the value of the acquisition is at or below the simplified 
acquisition threshold.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES


252.223-7001  [Amended]

0
14. Amend section 252.223-7001 in the introductory text by removing 
``223.303'' and adding ``223.304'' in its place.


252.223-7004  [Removed and Reserved]

0
15. Remove and reserve section 252.223-7004.

0
16. Add section 252.226-7003 to read as follows:


252.226-7003  Drug-Free Work Force.

    As prescribed in 226.570-2, use the following clause:

Drug-Free Work Force (Aug 2024)

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

[[Page 66285]]

    Employee in a sensitive position means an employee who has been 
granted access to classified information; or employees in other 
positions that the Contractor determines involve national security, 
health or safety, or functions other than the foregoing requiring a 
high degree of trust and confidence.
    Illegal drugs means controlled substances included in Schedules I 
and II, as defined by section 802(6) of title 21 of the United States 
Code, the possession of which is unlawful under chapter 13 of that 
title. The term ``illegal drugs'' does not mean the use of a controlled 
substance pursuant to a valid prescription or other uses authorized by 
law.
    (b) The Contractor agrees to institute and maintain a program for 
achieving the objective of a drug-free work force. While this clause 
defines criteria for such a program, contractors are encouraged to 
implement alternative approaches comparable to the criteria in 
paragraph (c) that are designed to achieve the objectives of this 
clause.
    (c) Contractor programs shall include the following, or appropriate 
alternatives:
    (1) Employee assistance programs emphasizing high level direction, 
education, counseling, rehabilitation, and coordination with available 
community resources;
    (2) Supervisory training to assist in identifying and addressing 
illegal drug use by Contractor employees;
    (3) Provision for self-referrals as well as supervisory referrals 
to treatment with maximum respect for individual confidentiality 
consistent with safety and security issues;
    (4) Provision for identifying illegal drug users, including testing 
on a controlled and carefully monitored basis. Employee drug testing 
programs shall be established taking account of the following:
    (i) The Contractor shall establish a program that provides for 
testing for the use of illegal drugs by employees in sensitive 
positions. The extent of and criteria for such testing shall be 
determined by the Contractor based on considerations that include the 
nature of the work being performed under the contract, the employee's 
duties, the efficient use of Contractor resources, and the risks to 
health, safety, or national security that could result from the failure 
of an employee adequately to discharge his or her position.
    (ii) In addition, the Contractor may establish a program for 
employee drug testing--
    (A) When there is a reasonable suspicion that an employee uses 
illegal drugs; or
    (B) When an employee has been involved in an accident or unsafe 
practice;
    (C) As part of or as a follow-up to counseling or rehabilitation 
for illegal drug use;
    (D) As part of a voluntary employee drug testing program.
    (iii) The Contractor may establish a program to test applicants for 
employment for illegal drug use.
    (iv) For the purpose of administering this clause, testing for 
illegal drugs may be limited to those substances for which testing is 
prescribed by section 2.1 of subpart B of the ``Mandatory Guidelines 
for Federal Workplace Drug Testing Programs'' (53 FR 11980 (April 11 
1988)), issued by the Department of Health and Human Services.
    (d) Contractors shall adopt appropriate personnel procedures to 
deal with employees who are found to be using drugs illegally. 
Contractors shall not allow any employee to remain on duty or perform 
in a sensitive position who is found to use illegal drugs until such 
times as the Contractor, in accordance with procedures established by 
the Contractor, determines that the employee may perform in such a 
position.
    (e) The provisions of this clause pertaining to drug testing 
program shall not apply to the extent they are inconsistent with state 
or local law, or with an existing collective bargaining agreement; 
provided that with respect to the latter, the Contractor agrees that 
those issues that are in conflict will be a subject of negotiation at 
the next collective bargaining session.


(End of clause)

[FR Doc. 2024-18108 Filed 8-14-24; 8:45 am]
BILLING CODE 6001-FR-P