Defense Federal Acquisition Regulation Supplement: Storage, Treatment, and Disposal of Toxic or Hazardous Materials-Statutory Update (DFARS Case 2013-D013), 4648-4652 [2014-01277]

Download as PDF 4648 Federal Register / Vol. 79, No. 19 / Wednesday, January 29, 2014 / Proposed Rules This rule amends the DFARS by incorporating policies and procedures at DFARS 212.301 and 232.72 on the use of a new DFARS solicitation provision 252.232–7XXX, Notification of Payment in Local Currency (Afghanistan). This rule proposes to implement the payment currency procedures contained in the U.S. Central Command’s Fragmentary Orders 09–1567 and 10–143. The provision provides notification that the payment currency to be used for contracts for performance in Afghanistan shall be dependent on the nationality of the vendor. Additionally, DFARS 225.7703–1 provides direction to contracting officers to follow the procedures at DFARS Procedures, Guidance, and Information 225.7703– 1(c) when issuing solicitations and contracts for performance in Afghanistan. DoD does not expect this proposed rule to have a significant economic impact on a substantial number of small entities because this rule merely provides requirements for payments to host nation vendors for performance in Afghanistan. The proposed rule does not duplicate, overlap, or conflict with any other Federal rules. V. Paperwork Reduction Act The rule does not contain 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 212, 225, 232, and 252 Government procurement. Manuel Quinones, Editor, Defense Acquisition Regulations System. Therefore, 48 CFR parts 212, 225, 232, and 252 are proposed to be amended as follows: ■ 1. The authority citation for parts 212, 225, 232, 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. Section 212.301 is amended by— a. Redesignating paragraphs (f)(lii) through (lxvii) as (f)(liii) through (lxviii); and ■ b. Adding a new paragraph (f)(lii) as follows: tkelley on DSK3SPTVN1PROD with PROPOSALS ■ ■ 212.301 Solicitation provisions and contract clauses for the acquisition of commercial items. (f) * * * VerDate Mar<15>2010 16:04 Jan 28, 2014 Jkt 232001 (lii) Use the clause at 252.232–7XXX, Notification of Payment in Local Currency (Afghanistan), as prescribed in 237.7202. * * * * * PART 225—FOREIGN ACQUISITIONS 3. Section 225.7703–1 is amended by adding paragraph (c) to read as follows: ■ 225.7703–1 Acquisition procedures. * * * * * (c) When issuing solicitations and contracts for performance in Afghanistan, follow the procedures at PGI 225.7703–1(c). PART 232—CONTRACT FINANCING 4. Add subpart 232.72 to read as follows: ■ Subpart 232.72—Payment in Local Currency (Afghanistan) Sec. 232.7200 Scope of subpart. 232.7201 Policy and procedures. 232.7202 Solicitation provision. Subpart 232.72—Payment in Local Currency (Afghanistan) 232.7200 Scope of subpart. This subpart prescribes policies and procedures concerning the payment of contracts for performance in Afghanistan. 232.7201 Policy and procedures. Payment currency used for contracts performed in Afghanistan shall be dependent on the nationality of the vendor pursuant to the authority of USCENTCOM Fragmentary Orders (FRAGOs) 09–1567 and 10–143. If the contract is awarded to a host nation vendor (Afghan), the contractor will be paid in Afghani (local currency) via electronic funds transfer to a local (Afghan) banking institution. Contracts shall not be awarded to host nation vendors who do not bank locally. If awarded to other than a host nation vendor, the contract will be awarded in U.S. dollars. 232.7202 As prescribed in 232.7202, use the following provision: NOTIFICATION OF PAYMENT IN LOCAL CURRENCY (AFGHANISTAN) (Date) (a) This contract will be paid in Afghani (local currency) if the contract is awarded to a host nation vendor (Afghan), pursuant to the authority of USCENTCOM Fragmentary Order (FRAGO) 09–1567 and FRAGO 10– 143. Contract payment will be made in Afghani (local currency) via electronic funds transfer (EFT) to a local (Afghan) banking institution, unless an exception in paragraph (c) applies. Contracts shall not be awarded to host nation vendors who do not bank locally. If award is made to other than a host nation vendor, the contract will be awarded in U.S. dollars. (b) Vendors shall submit quotations and offers in U.S. dollars. If the contract is awarded to an Afghan vendor, the quotation or offer will be converted to Afghani using a Government budget rate of [Insert current budget rate here] Afghani per U.S. dollar. (c) By exception, the following forms of payment are acceptable, in the following order of priority, when the local finance office determines that EFT using ITS.gov is not available: (1) EFT using Limited Depository Account (LDA). (2) Check from the local finance office LDA. (3) Local currency cash payments in Afghani (must be approved in writing by the local finance office and contracting office prior to contract award). Payments in cash are restricted to contracts when— (i) The vendor provides proof via a letter from the host nation banking institution that it is not EFT capable; and (ii) The local finance office validates that the vendor’s banking institution is not EFT capable. Cash payments will be made in Afghani. (End of provision) [FR Doc. 2014–01278 Filed 1–28–14; 8:45 am] BILLING CODE 5001–06–P DEPARTMENT OF DEFENSE Defense Acquisition Regulations System Solicitation provision. Use the provision at 252.232–7XXX, Notification of Payment in Local Currency (Afghanistan), in all solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items, for performance in Afghanistan. PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 5. Section 252.232–7XXX is added as follows: ■ PO 00000 252.232–7XXX Notification of Payment in Local Currency (Afghanistan). Frm 00011 Fmt 4702 Sfmt 4702 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) Defense Acquisition Regulations System, Department of Defense (DoD). ACTION: Proposed rule. AGENCY: E:\FR\FM\29JAP1.SGM 29JAP1 Federal Register / Vol. 79, No. 19 / Wednesday, January 29, 2014 / Proposed Rules DoD is proposing to amend 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: Comment Date: Comments on the proposed rule should be submitted in writing to the address shown below on or before March 31, 2014, to be considered in the formation of a final rule. ADDRESSES: Submit comments identified by DFARS Case 2013–D013, using any of the following methods: Æ Regulations.gov: http:// www.regulations.gov. Submit comments via the Federal eRulemaking portal by entering ‘‘DFARS Case 2013–D013’’ under the heading ‘‘Enter keyword or ID’’ and selecting ‘‘Search.’’ Select the link ‘‘Submit a Comment’’ that corresponds with ‘‘DFARS Case 2013– D013.’’ Follow the instructions provided at the ‘‘Submit a Comment’’ screen. Please include your name, company name (if any), and ‘‘DFARS Case 2013– D013’’ on your attached document. Æ Email: dfars@mail.mil. Include DFARS Case 2013–D013 in the subject line of the message. Æ Fax: 571–372–6094. Æ Mail: Defense Acquisition Regulations System, Attn: Ms. Susan 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. Susan Williams, Defense Acquisition Regulations System, OUSD(AT&L)DPAP/DARS, Room 3B855, 3060 Defense Pentagon, Washington, DC 20301–3060. Telephone 571–372–6092; facsimile 571–372–6101. SUPPLEMENTARY INFORMATION: tkelley on DSK3SPTVN1PROD with PROPOSALS SUMMARY: I. Background DoD is proposing to amend DFARS subpart 223.71, currently titled ‘‘Storage and Disposal of Toxic and Hazardous Materials,’’ to conform subpart 223.71 to 10 U.S.C. 2692. Additionally, the contract clause at 252.223.7006 is being reformatted to facilitate the use of automated contract writing systems. VerDate Mar<15>2010 16:04 Jan 28, 2014 Jkt 232001 As part of DoD’s retrospective analysis, a review of DFARS part 223 was conducted for the purpose of streamlining the regulations. It was determined that additional clarification to DFARS 223 is needed to assure compliance with existing standards under 10 U.S.C. 2692, entitled Storage, Treatment, and Disposal of Nondefense Toxic and Hazardous Materials. Originally, DAR case 92–D361 was opened in 1993 to address the requirements of the Defense Authorization Act for Fiscal Year 1993 (Pub. L. 102–484), which modified 10 U.S.C. 2692. An interim rule, DAR case 92–D361, was published in the Federal Register on May 13, 1993, (58 FR 28458) to implement the requirements of 10 U.S.C. 2692 and DoD Directive 6050.8. Prior to the interim rule, no coverage existed in the DFARS. However, DoD Directive 6050.8, Storage and disposal of non-DOD owned hazardous or toxic materials on DoD installations, had been previously issued on February 27, 1986, to cover the requirements of 10 U.S.C. 2692. Over the years a number of amendments to the statute have been issued. DoD Directive 6050.8 was cancelled on September 10, 1998, as having served its purpose. Accordingly, this rule proposes to amend DFARS 223.71 to better align the DFARS to the current provisions set forth in 10 U.S.C. 2692 by— • Revising text to reflect current language and restrictions contained within the statute; • Reorganizing and partially rewriting sections to provide greater clarity to contracting officers; • Adding a new clause prescription under 223.7104; and • Revising the basic clause and alternate to require flowdown of the clause to subcontractors. A. Discussion This rule proposes to make the following changes: • Revise the 223.71 heading by adding the word ‘‘treatment’’ and changing ‘‘toxic and hazardous’’ to ‘‘toxic or hazardous’’. The revised heading is ‘‘Storage, Treatment, and Disposal of Toxic or Hazardous Materials’’. • Add a new section 223.7101, Definitions, to include the terms ‘‘storage’’ and ‘‘toxic or hazardous materials’’ and provide a cross reference to clause 252.223–7006, ‘‘Prohibition on Storage, Treatment, and Disposal of Toxic or Hazardous Materials,’’ where the terms are defined. The remaining sections in subpart 223.71 are renumbered as a result of adding the new section 223.7101, Definitions. PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 4649 • Redesignate 223.7100, Policy, as section 223.7102, Policy. The redesignated section 223.7102, paragraph (a) adds the term ‘‘treatment’’ to the 10 U.S.C. 2692 list of prohibited actions and includes a statement that the prohibition applies to 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.’’ A new paragraph (b), implementing 10 U.S.C. 2692(c)(2), is added to state that when storage of toxic or hazardous materials is authorized based on imminent danger, the storage provided is required to be temporary and must cease once the imminent danger no longer exists. In all other cases, the storage or disposal is required to be terminated as determined by the Secretary. • Redesignate 223.7101, Procedures, as section 223.7103, Procedures. The following changes are made to the redesignated section 223.7102. Paragraph (a) is redesignated as paragraph (b). The original paragraph (b) is redesignated as subparagraph (a)(2) and revised for purposes of clarity and to conform to 10 U.S.C. 2692(b)(11). A new subparagraph (a)(1) is added to clearly identify and direct the reader to the prohibition exceptions. • Redesignate 223.7102, Exceptions, as section 223.7104, Exceptions. The following changes are made to the redesignated section 223.7104. Subparagraphs (a)(1) through (a)(9) are redesignated as (a)(2) through (a)(10), new subparagraphs (a)(1) and (a)(11) are added to the list of exceptions, and newly redesignated subparagraphs (a)(3), (a)(9), and (a)(10) are revised. Paragraph (b) is revised to require an additional finding by the Secretary of Defense that storage or disposal would not compete with private enterprise (see 10 U.S.C. 2692(c)). The additions and revisions to the redesignated section 223.7104 are as discussed below. Subparagraph (a)(1) adds an exemption to the prohibition for the storage, treatment, or disposal of materials used in connection with an activity of DoD or in connection with a service performed on a DoD installation for the benefit of DoD (see 10 U.S.C. 2692(b)(1)). Subparagraph (a)(3) is revised to expand the exception for storage or disposal of explosives when no alternative exists to State or local law enforcement under the conditions set forth in the subparagraph (see 10 U.S.C. 2692(b)(3)). E:\FR\FM\29JAP1.SGM 29JAP1 tkelley on DSK3SPTVN1PROD with PROPOSALS 4650 Federal Register / Vol. 79, No. 19 / Wednesday, January 29, 2014 / Proposed Rules Subparagraph (a)(9) is revised to remove the term ‘‘a private person’’ and expands the exception for the storage of toxic or hazardous materials not owned by DoD but 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 (see 10 U.S.C. 2692(b)(9)). Subparagraph (a)(10) is revised to remove the term ‘‘non-DoD owned material’’ and replace it with ‘‘toxic or hazardous materials not owned by DoD’’, remove the term ‘‘by a private person,’’ remove the language concerning commercial use of an industrial facility and replace it to reflect use of a facility of that military department when the Secretary enters into a contract or agreement with the prospective user, and replace the term ‘‘that person’s’’ with ‘‘the prospective user’s’’ (see 10 U.S.C. 2692(b)(10)). Subparagraph (a)(11) adds an exemption for the storage of material not owned by DoD when the Secretary of the military department concerned determines the material is required or generated in connection with the use of a space launch facility on a DoD installation or other land controlled by the United States (see 10 U.S.C. 2692(b)(11)). • A new section 223.7105, Reimbursement, is added to provide that the Secretary of Defense may assess a charge for any storage or disposal provided under the subpart. Any assessed costs shall be identified in the contract and are required to be paid to the Government on a reimbursable cost basis and (see 10 U.S.C. 2692(d)(1)). • Redesignate 223.7103, Contract clause, as section 223.7106, Contract clause, and revise the clause title to read ‘‘Prohibition on Storage, Treatment, and Disposal of Toxic or Hazardous Materials’’. The changes made to the redesignated section 223.7106 are discussed below. Paragraph (a) revises the basic clause prescription by broadening the clause application to include solicitations and contracts that may require access to a DoD installation, unless a determination is made under 223.7104(a)(10). Offerors and contractors requiring access to a DoD installation will be put on notice of the prohibition of storing, treating, or disposing of non-DoD toxic or hazardous waste on a DoD installation. Paragraph (b) is revised to reflect the revised title for the alternate clause and the redesignation of 223.7102(a)(9) as 223.7104(a)(10). • The clause 252.223–7006 titled is revised to read ‘‘Prohibition on Storage, Treatment, and Disposal of Toxic or VerDate Mar<15>2010 16:04 Jan 28, 2014 Jkt 232001 Hazardous Materials.’’ New clause preface paragraphs (a) and (b) are added to address use of the basic and alternate clauses. Additional changes are made to the basic and alternate clauses as discussed below: The basic clause is expanded to include the treatment and reimbursement of costs to the Government. A requirement to flow down the substance of the basic clause is also added. The alternate clause is modified to reflect the redesignation of 223.7102(a)(9) as 223.7104(a)(10). The flowdown provision is expanded to all subcontractors that may be permitted access to a DoD installation. The alternate clause also clarifies that the substance of the clause shall be flowed down to all subcontract tiers and that the prime Contractor is not relieved of liability by flowing the substance of the clause down to subcontractors. B. Clause With an Alternate In order to facilitate the use of automated contract writing systems, DoD is processing multiple cases, by DFARS part, to modify the naming convention for clauses with alternates, revise the clause prescriptions and clause prefaces, and provide the full text of each alternate in the regulation. This rule proposes to revise the title of the basic clause and its alternate, consistent with the new naming convention for clauses with alternates. The title of the basic clause is revised to read ‘‘Prohibition on Storage, Treatment, and Disposal of Toxic or Hazardous Materials–Basic.’’ Likewise, the title of the alternate clause is revised to read ‘‘Prohibition on Storage, Treatment, and Disposal of Toxic or Hazardous Materials–Alternate’’ in lieu of ‘‘Alternate I’’. Providing the full text of the alternate clause in the regulation should make the clause clearer to DoD contracting officers and to offerors. The current convention for alternates is to show in the regulation only the changed material that differs from the basic solicitation provision or clause. Providing the full text of the alternate in the regulation will clarify the paragraph substitutions. 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 PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 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, is 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 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 the objective of the rule is to conform the DFARS with the statute regarding the storage, treatment, or disposal of toxic or hazardous materials not owned by DoD on DoD installations and to facilitate the use of automated contract writing systems. However, an initial regulatory flexibility analysis has been performed and is summarized as follows: The legal basis for the rule is 10 U.S.C. 2692, as amended. DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to conform to the statute and apply the new paradigm for clauses with alternates. 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. Although the rule does provide more exceptions to the prohibition, as provided in 10 U.S.C. 2692, it also implements 10 U.S.C. 2692(d)(1), which provides that the Secretary of Defense may assess a charge for any storage or disposal provided under this section. Any such charge shall be on a reimbursable cost basis. The rule does not duplicate, overlap, or conflict with any other Federal rules. No alternatives were determined that will accomplish the objectives of the 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 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 2013–D013), in correspondence. E:\FR\FM\29JAP1.SGM 29JAP1 Federal Register / Vol. 79, No. 19 / Wednesday, January 29, 2014 / Proposed Rules 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 proposed to be amended as follows: ■ 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 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. tkelley on DSK3SPTVN1PROD with PROPOSALS 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 VerDate Mar<15>2010 16:04 Jan 28, 2014 Jkt 232001 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 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 PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 4651 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 E:\FR\FM\29JAP1.SGM 29JAP1 4652 Federal Register / Vol. 79, No. 19 / Wednesday, January 29, 2014 / Proposed Rules 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 clause Prohibition on Storage, Treatment, and Disposal of Toxic or Hazardous Materials–Basic, unless a determination is made under 223.7104(a)(10). (b) Use the clause Prohibition on Storage, Treatment and Disposal of Toxic or Hazardous Materials–Alternate I, 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 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: tkelley on DSK3SPTVN1PROD with PROPOSALS PROHIBITION ON STORAGE, TREATMENT, AND DISPOSAL OF TOXIC OR HAZARDOUS MATERIALS–BASIC (DATE) (a) Definitions. As used in this clause— Storage means a non-transitory, semipermanent 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 VerDate Mar<15>2010 16:04 Jan 28, 2014 Jkt 232001 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. (d) The Contractor shall include the substance of this clause, including this paragraph (d), in all subcontracts that require, may require, or permits 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). (End of clause) Alternate I. As prescribed in 223.7106(b), use the following clause, which revises and redesignates paragraph (c) of the basic clause as paragraph (d), adds a new paragraph (c), and revises paragraph (d). BILLING CODE 5001–06–P PROHIBITION ON STORAGE, TREATMENT, AND DISPOSAL OF TOXIC OR HAZARDOUS MATERIALS—ALTERNATE I (DATE) (a) Definitions. As used in this clause— Storage means a non-transitory, semipermanent 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. PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 (End of clause) [FR Doc. 2014–01277 Filed 1–28–14; 8:45 am] DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS–R2–ES–2012–0071; 4500030113] RIN 1018–AY21 Endangered and Threatened Wildlife and Plants; Listing the Lesser PrairieChicken as a Threatened Species With a Special Rule Fish and Wildlife Service, Interior. ACTION: Proposed rule; reopening of comment period. AGENCY: We, the U.S. Fish and Wildlife Service, announce the reopening of the comment period on the December 11, 2013, proposed revised special rule under authority of section 4(d) of the Endangered Species Act of 1973, as amended (Act), that provides measures that are necessary and advisable to provide for the conservation of the lesser prairiechicken (Tympanuchus pallidicinctus). In addition, we announce the reopening of the public comment period on the December 11, 2012, proposed rule to list the lesser prairie-chicken as a threatened species under the Act. We are reopening the comment period to allow all interested parties an opportunity to comment on the final Lesser Prairie-Chicken Range-Wide Conservation Plan, which has been prepared by the Lesser Prairie-Chicken Interstate Working Group, and our endorsement of the plan, and we request comments on the plan as it relates to our determination of status under section 4(a)(1) of the Act. The final plan is available on the Internet in Docket No. FWS–R2–ES–2012–0071 at http:// www.regulations.gov. SUMMARY: The comment period for the proposed rule published December 11, 2012 (77 FR 73827), is reopened. We will accept comments received or postmarked on or before February 12, DATES: E:\FR\FM\29JAP1.SGM 29JAP1

Agencies

[Federal Register Volume 79, Number 19 (Wednesday, January 29, 2014)]
[Proposed Rules]
[Pages 4648-4652]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-01277]


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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: Proposed rule.

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

[[Page 4649]]

SUMMARY: DoD is proposing to amend 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: Comment Date: Comments on the proposed rule should be submitted 
in writing to the address shown below on or before March 31, 2014, to 
be considered in the formation of a final rule.

ADDRESSES: Submit comments identified by DFARS Case 2013-D013, using 
any of the following methods:
    [cir] Regulations.gov: http://www.regulations.gov. Submit comments 
via the Federal eRulemaking portal by entering ``DFARS Case 2013-D013'' 
under the heading ``Enter keyword or ID'' and selecting ``Search.'' 
Select the link ``Submit a Comment'' that corresponds with ``DFARS Case 
2013-D013.'' Follow the instructions provided at the ``Submit a 
Comment'' screen. Please include your name, company name (if any), and 
``DFARS Case 2013-D013'' on your attached document.
    [cir] Email: dfars@mail.mil. Include DFARS Case 2013-D013 in the 
subject line of the message.
    [cir] Fax: 571-372-6094.
    [cir] Mail: Defense Acquisition Regulations System, Attn: Ms. Susan 
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. Susan Williams, Defense 
Acquisition Regulations System, OUSD(AT&L)DPAP/DARS, Room 3B855, 3060 
Defense Pentagon, Washington, DC 20301-3060. Telephone 571-372-6092; 
facsimile 571-372-6101.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD is proposing to amend DFARS subpart 223.71, currently titled 
``Storage and Disposal of Toxic and Hazardous Materials,'' to conform 
subpart 223.71 to 10 U.S.C. 2692. Additionally, the contract clause at 
252.223.7006 is being reformatted to facilitate the use of automated 
contract writing systems.
    As part of DoD's retrospective analysis, a review of DFARS part 223 
was conducted for the purpose of streamlining the regulations. It was 
determined that additional clarification to DFARS 223 is needed to 
assure compliance with existing standards under 10 U.S.C. 2692, 
entitled Storage, Treatment, and Disposal of Nondefense Toxic and 
Hazardous Materials. Originally, DAR case 92-D361 was opened in 1993 to 
address the requirements of the Defense Authorization Act for Fiscal 
Year 1993 (Pub. L. 102-484), which modified 10 U.S.C. 2692. An interim 
rule, DAR case 92-D361, was published in the Federal Register on May 
13, 1993, (58 FR 28458) to implement the requirements of 10 U.S.C. 2692 
and DoD Directive 6050.8. Prior to the interim rule, no coverage 
existed in the DFARS. However, DoD Directive 6050.8, Storage and 
disposal of non-DOD owned hazardous or toxic materials on DoD 
installations, had been previously issued on February 27, 1986, to 
cover the requirements of 10 U.S.C. 2692. Over the years a number of 
amendments to the statute have been issued. DoD Directive 6050.8 was 
cancelled on September 10, 1998, as having served its purpose. 
Accordingly, this rule proposes to amend DFARS 223.71 to better align 
the DFARS to the current provisions set forth in 10 U.S.C. 2692 by--
     Revising text to reflect current language and restrictions 
contained within the statute;
     Reorganizing and partially rewriting sections to provide 
greater clarity to contracting officers;
     Adding a new clause prescription under 223.7104; and
     Revising the basic clause and alternate to require 
flowdown of the clause to subcontractors.

A. Discussion

    This rule proposes to make the following changes:
     Revise the 223.71 heading by adding the word ``treatment'' 
and changing ``toxic and hazardous'' to ``toxic or hazardous''. The 
revised heading is ``Storage, Treatment, and Disposal of Toxic or 
Hazardous Materials''.
     Add a new section 223.7101, Definitions, to include the 
terms ``storage'' and ``toxic or hazardous materials'' and provide a 
cross reference to clause 252.223-7006, ``Prohibition on Storage, 
Treatment, and Disposal of Toxic or Hazardous Materials,'' where the 
terms are defined. The remaining sections in subpart 223.71 are 
renumbered as a result of adding the new section 223.7101, Definitions.
     Redesignate 223.7100, Policy, as section 223.7102, Policy. 
The redesignated section 223.7102, paragraph (a) adds the term 
``treatment'' to the 10 U.S.C. 2692 list of prohibited actions and 
includes a statement that the prohibition applies to 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.'' A new paragraph (b), implementing 10 U.S.C. 2692(c)(2), is 
added to state that when storage of toxic or hazardous materials is 
authorized based on imminent danger, the storage provided is required 
to be temporary and must cease once the imminent danger no longer 
exists. In all other cases, the storage or disposal is required to be 
terminated as determined by the Secretary.
     Redesignate 223.7101, Procedures, as section 223.7103, 
Procedures. The following changes are made to the redesignated section 
223.7102. Paragraph (a) is redesignated as paragraph (b). The original 
paragraph (b) is redesignated as subparagraph (a)(2) and revised for 
purposes of clarity and to conform to 10 U.S.C. 2692(b)(11). A new 
subparagraph (a)(1) is added to clearly identify and direct the reader 
to the prohibition exceptions.
     Redesignate 223.7102, Exceptions, as section 223.7104, 
Exceptions. The following changes are made to the redesignated section 
223.7104. Subparagraphs (a)(1) through (a)(9) are redesignated as 
(a)(2) through (a)(10), new subparagraphs (a)(1) and (a)(11) are added 
to the list of exceptions, and newly redesignated subparagraphs (a)(3), 
(a)(9), and (a)(10) are revised. Paragraph (b) is revised to require an 
additional finding by the Secretary of Defense that storage or disposal 
would not compete with private enterprise (see 10 U.S.C. 2692(c)). The 
additions and revisions to the redesignated section 223.7104 are as 
discussed below.
    Subparagraph (a)(1) adds an exemption to the prohibition for the 
storage, treatment, or disposal of materials used in connection with an 
activity of DoD or in connection with a service performed on a DoD 
installation for the benefit of DoD (see 10 U.S.C. 2692(b)(1)).
    Subparagraph (a)(3) is revised to expand the exception for storage 
or disposal of explosives when no alternative exists to State or local 
law enforcement under the conditions set forth in the subparagraph (see 
10 U.S.C. 2692(b)(3)).

[[Page 4650]]

    Subparagraph (a)(9) is revised to remove the term ``a private 
person'' and expands the exception for the storage of toxic or 
hazardous materials not owned by DoD but 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 (see 10 U.S.C. 2692(b)(9)).
    Subparagraph (a)(10) is revised to remove the term ``non-DoD owned 
material'' and replace it with ``toxic or hazardous materials not owned 
by DoD'', remove the term ``by a private person,'' remove the language 
concerning commercial use of an industrial facility and replace it to 
reflect use of a facility of that military department when the 
Secretary enters into a contract or agreement with the prospective 
user, and replace the term ``that person's'' with ``the prospective 
user's'' (see 10 U.S.C. 2692(b)(10)).
    Subparagraph (a)(11) adds an exemption for the storage of material 
not owned by DoD when the Secretary of the military department 
concerned determines the material is required or generated in 
connection with the use of a space launch facility on a DoD 
installation or other land controlled by the United States (see 10 
U.S.C. 2692(b)(11)).
     A new section 223.7105, Reimbursement, is added to provide 
that the Secretary of Defense may assess a charge for any storage or 
disposal provided under the subpart. Any assessed costs shall be 
identified in the contract and are required to be paid to the 
Government on a reimbursable cost basis and (see 10 U.S.C. 2692(d)(1)).
     Redesignate 223.7103, Contract clause, as section 
223.7106, Contract clause, and revise the clause title to read 
``Prohibition on Storage, Treatment, and Disposal of Toxic or Hazardous 
Materials''. The changes made to the redesignated section 223.7106 are 
discussed below.
    Paragraph (a) revises the basic clause prescription by broadening 
the clause application to include solicitations and contracts that may 
require access to a DoD installation, unless a determination is made 
under 223.7104(a)(10). Offerors and contractors requiring access to a 
DoD installation will be put on notice of the prohibition of storing, 
treating, or disposing of non-DoD toxic or hazardous waste on a DoD 
installation.
    Paragraph (b) is revised to reflect the revised title for the 
alternate clause and the redesignation of 223.7102(a)(9) as 
223.7104(a)(10).
     The clause 252.223-7006 titled is revised to read 
``Prohibition on Storage, Treatment, and Disposal of Toxic or Hazardous 
Materials.'' New clause preface paragraphs (a) and (b) are added to 
address use of the basic and alternate clauses. Additional changes are 
made to the basic and alternate clauses as discussed below:
    The basic clause is expanded to include the treatment and 
reimbursement of costs to the Government. A requirement to flow down 
the substance of the basic clause is also added.
    The alternate clause is modified to reflect the redesignation of 
223.7102(a)(9) as 223.7104(a)(10). The flowdown provision is expanded 
to all subcontractors that may be permitted access to a DoD 
installation. The alternate clause also clarifies that the substance of 
the clause shall be flowed down to all subcontract tiers and that the 
prime Contractor is not relieved of liability by flowing the substance 
of the clause down to subcontractors.

B. Clause With an Alternate

    In order to facilitate the use of automated contract writing 
systems, DoD is processing multiple cases, by DFARS part, to modify the 
naming convention for clauses with alternates, revise the clause 
prescriptions and clause prefaces, and provide the full text of each 
alternate in the regulation.
    This rule proposes to revise the title of the basic clause and its 
alternate, consistent with the new naming convention for clauses with 
alternates. The title of the basic clause is revised to read 
``Prohibition on Storage, Treatment, and Disposal of Toxic or Hazardous 
Materials-Basic.'' Likewise, the title of the alternate clause is 
revised to read ``Prohibition on Storage, Treatment, and Disposal of 
Toxic or Hazardous Materials-Alternate'' in lieu of ``Alternate I''.
    Providing the full text of the alternate clause in the regulation 
should make the clause clearer to DoD contracting officers and to 
offerors. The current convention for alternates is to show in the 
regulation only the changed material that differs from the basic 
solicitation provision or clause. Providing the full text of the 
alternate in the regulation will clarify the paragraph substitutions.

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 a significant regulatory action and, therefore, is 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 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 the objective of the rule is to conform the DFARS with the 
statute regarding the storage, treatment, or disposal of toxic or 
hazardous materials not owned by DoD on DoD installations and to 
facilitate the use of automated contract writing systems. However, an 
initial regulatory flexibility analysis has been performed and is 
summarized as follows:
    The legal basis for the rule is 10 U.S.C. 2692, as amended. DoD is 
proposing to amend the Defense Federal Acquisition Regulation 
Supplement (DFARS) to conform to the statute and apply the new paradigm 
for clauses with alternates.
    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. Although the rule does provide more exceptions to the 
prohibition, as provided in 10 U.S.C. 2692, it also implements 10 
U.S.C. 2692(d)(1), which provides that the Secretary of Defense may 
assess a charge for any storage or disposal provided under this 
section. Any such charge shall be on a reimbursable cost basis.
    The rule does not duplicate, overlap, or conflict with any other 
Federal rules. No alternatives were determined that will accomplish the 
objectives of the 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 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 2013-D013), in 
correspondence.

[[Page 4651]]

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 proposed to be 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 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

[[Page 4652]]

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 clause Prohibition on Storage, Treatment, and Disposal 
of Toxic or Hazardous Materials-Basic, unless a determination is made 
under 223.7104(a)(10).
    (b) Use the clause Prohibition on Storage, Treatment and Disposal 
of Toxic or Hazardous Materials-Alternate I, 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 (DATE)

    (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 revises and redesignates paragraph (c) of the basic 
clause as paragraph (d), adds a new paragraph (c), and revises 
paragraph (d).

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

    (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) 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 permits 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).

    (End of clause)

[FR Doc. 2014-01277 Filed 1-28-14; 8:45 am]
BILLING CODE 5001-06-P