Defense Federal Acquisition Regulation Supplement: Authorities for Minimizing the Use of Materials Containing Hexavalent Chromium (DFARS Case 2020-D031), 74639-74640 [2020-25431]

Agencies

• Defense Acquisition Regulations System
• DEPARTMENT OF DEFENSE

[Federal Register Volume 85, Number 226 (Monday, November 23, 2020)]
[Proposed Rules]
[Pages 74639-74640]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25431]



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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 223

[Docket DARS-2020-0045]
RIN 0750-AL17


Defense Federal Acquisition Regulation Supplement: Authorities 
for Minimizing the Use of Materials Containing Hexavalent Chromium 
(DFARS Case 2020-D031)

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

ACTION: Proposed rule.

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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement (DFARS) to remove references to revoked Executive 
Orders related to minimizing the use of materials containing hexavalent 
chromium.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before January 22, 2021, to be considered 
in the formation of the final rule.

ADDRESSES: Submit comments identified by DFARS Case 2020-D031, using 
any of the following methods:
    [cir] Federal eRulemaking Portal: https://www.regulations.gov. 
Search for ``DFARS Case 2020-D031.'' Select ``Comment Now'' and follow 
the instructions to submit a comment. Please include your name, company 
name (if any), and ``DFARS Case 2020-D031'' on any attached document.
    [cir] Email: [email protected]. Include DFARS Case 2020-D031 in 
the subject line of the message.
    [cir] Mail: Defense Acquisition Regulations System, Attn: Ms. 
Kimberly R. Ziegler, OUSD(A&S)DPC/DARS, Room 3B938, 3060 Defense 
Pentagon, Washington, DC 20301-3060.
    Instructions: Comments received generally will be posted without 
change to 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. Kimberly R. Ziegler, telephone 
571-372-6095.

SUPPLEMENTARY INFORMATION: 

I. Background

    This rule proposes to amend the DFARS to remove references to 
Executive Order (E.O.) 13423, Strengthening Federal Environmental, 
Energy, and Transportation Management, and E.O. 13514, Federal 
Leadership in Environmental, Energy, and Economic Performance, as the 
authorities for the policy at DFARS subpart 223.73, Minimizing the Use 
of Materials Containing Hexavalent Chromium. Both E.O. 13423 and E.O. 
13514 were revoked by E.O. 13693, Planning for Federal Sustainability 
in the Next Decade, which was later revoked by E.O. 13834, Efficient 
Federal Operations (83 FR 23771, May 22, 2018). However, the removal of 
these references will not impact DoD's policies and procedures for 
minimizing the use of hexavalent chromium, a known carcinogen, still 
used in some DoD weapon systems and platforms due to its corrosion 
protection properties.
    On May 5, 2011, DoD issued a final rule, Minimizing the Use of 
Materials Containing Hexavalent Chromium (DFARS Case 2009-D004) (76 FR 
25569), which amended the DFARS to implement requirements for 
minimizing the use of materials containing hexavalent chromium in items 
acquired by DoD pursuant to an Under Secretary of Defense (Acquisition, 
Technology, and Logistics) policy memorandum dated April 8, 2009. The 
final rule codified internal procedures for addressing the serious 
human health and environmental risks related to the use of hexavalent 
chromium and prohibited the delivery of items containing more than 0.1 
percent by weight hexavalent chromium in any homogeneous material under 
DoD contracts unless there is no acceptable alternative to the use of 
hexavalent chromium. While this rule removes references to the revoked 
E.O.s, there is no change to the DoD policy implemented under the prior 
DFARS rule.

II. Discussion and Analysis

    The policy related to minimizing the use of materials containing 
hexavalent chromium is implemented in DFARS subpart 223.73. This rule 
proposes to remove references to E.O. 13423 and E.O. 13514 in the 
authorities section at DFARS 223.7302. In addition, this rule proposes 
to amend the policy section at DFARS 223.7301 to cite the DoD policy 
memorandum, dated April 8, 2009, as the source for the policy 
implemented in the DFARS. There are no changes proposed to the 
requirements of DFARS subpart 223.73 or the associated contract clause 
at DFARS 252.223-7008, Prohibition of Hexavalent Chromium. Therefore, 
there will be no impact to contracting officers or contractors as a 
result of this rule.

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold and for Commercial Items, Including Commercially Available 
Off-the-Shelf Items

    This proposed rule does not create any new provisions or clauses, 
nor does it change the applicability of any existing provisions or 
clauses included in solicitations and contracts valued at or below the 
simplified acquisition threshold, or for commercial items, including 
commercially available off-the-shelf items.

IV. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This is not a significant regulatory action and, therefore, was not 
subject to review under section 6(b) of E.O. 12866, Regulatory Planning 
and Review, dated September 30, 1993. This rule is not a major rule 
under 5 U.S.C. 804.

V. Executive Order 13771

    The rule is not anticipated to be subject to E.O. 13771, because 
this rule is not a significant regulatory action under E.O. 12866.

VI. Regulatory Flexibility Act

    DoD does not expect this proposed rule to have a significant 
economic impact on a substantial number of small entities within the 
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., 
because this rule maintains the current policies, procedures, and 
contract clause. However, an initial regulatory flexibility analysis 
has been performed and is summarized as follows:
    This rule proposes to amend the DFARS to remove references to 
Executive Order (E.O.) 13423, Strengthening Federal Environmental, 
Energy, and Transportation Management; and E.O. 13514, Federal 
Leadership in Environmental, Energy, and Economic Performance, which 
were

[[Page 74640]]

revoked by E.O. 13693, Planning for Federal Sustainability in the Next 
Decade. E.O. 13693, was later revoked by E.O. 13834, Efficient Federal 
Operations (83 FR 23771, May 22, 2018). The rule proposes to replace 
references to the revoked E.O.s with a reference to the DoD policy 
memorandum, dated April 8, 2009, Minimizing the use of Materials 
Containing Hexavalent Chromium.
    The objective of the case is to remove two revoked E.O.s, while 
maintaining current DoD policies and procedures for minimizing the use 
of materials containing hexavalent chromium.
    Data generated from the Electronic Data Access system for fiscal 
years 2017 through 2019, indicates that DoD has awarded an average of 
99,832 contracts containing DFARS clause 252.223-7008, Prohibition of 
Hexavalent Chromium, to approximately 14,777 unique entities per year, 
of which 70,470 contracts were awarded to 10,868 unique small entities 
(74 percent).
    The rule does not impose any new reporting, recordkeeping, or 
compliance requirements. The requirements of DFARS clause 252.223-7008 
remain unchanged; therefore, this rule is not expected to affect 
significant numbers of small business concerns.
    The rule does not duplicate, overlap, or conflict with any other 
Federal rules.
    There are no significant alternatives that will accomplish the 
objective of this rule.
    DoD invites comments from small business concerns and other 
interested parties on the expected impact of this rule on small 
entities.
    DoD will also consider comments from small entities concerning the 
existing regulations in subparts affected by the rule in accordance 
with 5 U.S.C. 610. Interested parties must submit such comments 
separately and should cite 5 U.S.C 610 (DFARS Case 2020-D031), in 
correspondence.

VII. Paperwork Reduction Act

    The rule does not contain any information collection requirements 
that require the approval of the Office of Management and Budget under 
the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Part 223

    Government procurement.

Jennifer D. Johnson,
Regulatory Control Officer, Defense Acquisition Regulations System.

    Therefore, 48 CFR 223 is proposed to be amended as follows:

PART 223--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE 
ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE

0
1. The authority citation for 48 CFR part 223 continues to read as 
follows:

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

0
2. Revise section 223.7301 to read as follows:


223.7301   Policy.

    In accordance with the DoD policy memorandum of April 8, 2009, 
Minimizing the Use of Hexavalent Chromium, it is DoD policy to minimize 
hexavalent chromium (an anti-corrosive) in items acquired by DoD 
(deliverables and construction material), due to the serious human 
health and environmental risks related to its use.


223.7302   [Removed and Reserved]

0
3. Remove and reserve section 223.7302.

[FR Doc. 2020-25431 Filed 11-20-20; 8:45 am]
BILLING CODE 5001-06-P