Defense Federal Acquisition Regulation Supplement: Storage, Treatment, and Disposal of Toxic or Hazardous Materials-Statutory Update (DFARS Case 2013-D013), 4648-4652 [2014-01277]
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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:
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■
■
212.301 Solicitation provisions and
contract clauses for the acquisition of
commercial items.
(f) * * *
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(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:
■
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252.232–7XXX Notification of Payment in
Local Currency (Afghanistan).
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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:
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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: https://
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 https://
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:
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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.
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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.
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• 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)).
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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
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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
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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.
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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.
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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
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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
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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 https://
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]
-----------------------------------------------------------------------
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: https://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 https://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
