Defense Federal Acquisition Regulation Supplement: Replacement of Fluorinated Aqueous Film-Forming Foam (DFARS Case 2020-D011), 20869-20871 [2024-06003]

Agencies

• Defense Acquisition Regulations System
• DEPARTMENT OF DEFENSE

[Federal Register Volume 89, Number 59 (Tuesday, March 26, 2024)]
[Rules and Regulations]
[Pages 20869-20871]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-06003]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 212, 213, 223, and 252

[Docket DARS-2023-0028]
RIN 0750-AK98


Defense Federal Acquisition Regulation Supplement: Replacement of 
Fluorinated Aqueous Film-Forming Foam (DFARS Case 2020-D011)

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

ACTION: Final rule.

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SUMMARY: DoD is adopting as final, with changes, an interim rule 
amending the Defense Federal Acquisition Regulation Supplement (DFARS) 
to implement a section of the National Defense Authorization Act for 
Fiscal Year 2020 that prohibits DoD procurement of fluorinated aqueous 
film-forming foam containing in excess of one part per billion of 
perfluoroalkyl and polyfluoroalkyl substances after October 1, 2023, 
unless an exemption applies.

DATES: Effective March 26, 2024.

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

SUPPLEMENTARY INFORMATION:

I. Background

    DoD published an interim rule in the Federal Register at 88 FR 
67604 on September 29, 2023, to implement section 322(b), (c), and (d) 
of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 
2020 (Pub. L. 116-92). Section 322 prohibits DoD procurement of fire-
fighting agent containing in excess of one part per billion of 
perfluoroalkyl and polyfluoroalkyl substances (PFAS) after October 1, 
2023, unless an exemption applies. One respondent submitted a public 
comment in response to the interim rule.

II. Discussion and Analysis

    DoD reviewed the public comment in the development of the final 
rule. A discussion of the comment and the changes made to the rule as a 
result of those comments is provided, as follows:

A. Summary of Significant Changes From the Interim Rule

    There are no significant changes from the interim rule based on the 
public comments.

B. Analysis of Public Comments

1. Exemption for Ocean-Going Vessels
    Comment: The respondent recommended the exemption for procurement 
of aqueous film-forming foam (AFFF) for use solely on ocean-going 
vessels be removed from the final rule.
    Response: The respondent's recommendation cannot be accepted 
because removing the exemption for procurement of AFFF for use solely 
on ocean-going vessels from the final rule would be inconsistent with 
implementing section 322. The exemption for use on ocean-going vessels 
is explicitly stated in section 322.
2. Use of the Term ``PFAS''
    Comment: The respondent suggested the rule consistently use the 
term ``PFAS'' in the context of the statutory prohibition.
    Response: Concur. The rule employs the term ``perfluoroalkyl 
substances and polyfluoroalkyl substances,'' in accordance with the 
language of section 322, which is also referred to as ``PFAS.''
3. Out-of-Scope Comments
    Comment: The respondent suggested manufacturers of PFAS-containing 
fire-fighting agents would face technical challenges when transitioning 
to manufacture of PFAS-free fire-fighting agents. The respondent also:
     Opined on the cleanup and remediation of PFAS spills.
     Suggested use of PFAS-containing fire-fighting agents 
should be criminalized.
     Suggested continued use of PFAS-containing fire-fighting 
agents in accordance with MIL-PRF-24385F(SH) would hamper military 
recruitment.
     Provided written materials that describe the dangers of 
PFAS exposure both to humans, particularly fire fighters, and to the 
environment and that document the transition of various entities away 
from use of fluorinated fire-fighting agents.
    Response: These comments do not directly relate to implementation 
of

[[Page 20870]]

section 322 and are outside the scope of this rule.

C. Other Changes

    The final rule removes the incorrect reference to MIL-PRF-
24385F(SH) in favor of stating the statutory standard of perfluoroalkyl 
or polyfluoroalkyl substances not in excess of one part per billion. 
The final rule also uses the term ``fire-fighting agent'' consistently 
throughout the DFARS text within the meaning of the statutory 
prohibition implemented under this rule. The qualifier ``after October 
1, 2023'' is deleted in the final rule as unnecessary because that date 
has passed.

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

    The clause at DFARS 252.223-7009, Prohibition of Procurement of 
Fluorinated Aqueous Fire-Fighting Agent for Use on Military 
Installations, is prescribed at DFARS 223.7404 for use in solicitations 
and contracts, including solicitations and contracts using Federal 
Acquisition Regulation (FAR) part 12 (48 CFR part 12) procedures for 
the acquisition of commercial products and commercial services, 
relating to fire-fighting on military installations. Consistent with 
the determination that DoD made and discussed in the interim rule with 
regard to the application of the requirements of section 322 of the 
NDAA for FY 2020, the clause at DFARS 252.223-7009 applies to contracts 
at or below the SAT, for the acquisition of commercial products 
including COTS items, and to the acquisition of commercial services, as 
defined at Federal Acquisition Regulation 2.101. For a discussion of 
the rationale for DoD's determination, see the interim rule published 
in the Federal Register (see section I of this preamble).

IV. Expected Impact of the Rule

    This rule is not expected to have a significant economic impact on 
contractors. Businesses have been selling fluorine-free fire-fighting 
agents in various formulations alongside PFAS-containing AFFF in the 
commercial marketplace for several years. Some or most of the 
businesses that have supplied PFAS-containing AFFF to DoD will likely 
supply fluorine-free agents to DoD. Moreover, DoD has already 
significantly reduced its use of AFFF. By limiting DoD procurement of 
AFFF containing detectable amounts of PFAS, this rule both protects DoD 
personnel from PFAS exposure and limits the possibility of AFFF-related 
PFAS releases into the environment.

V. Executive Orders 12866 and 13563

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

VI. Congressional Review Act

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

VII. Regulatory Flexibility Act

    A final regulatory flexibility analysis has been prepared 
consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. 
and is summarized as follows:
    This rule amends the DFARS to implement section 322 of the National 
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2020 (Pub. L. 
116-92). Section 322 prohibits DoD procurement of fluorinated fire-
fighting agents containing in excess of one part per billion of 
perfluoroalkyl and polyfluoroalkyl substances (PFAS) after October 1, 
2023, unless an exemption applies. Section 322 provides an exemption 
for fire-fighting agents for use solely onboard ocean-going vessels.
    In response to the interim rule, DoD received no comments relating 
to the initial regulatory flexibility analysis.
    This rule is not expected to affect significant numbers of small 
entities, because DoD has significantly reduced the use of aqueous 
film-forming foam (AFFF) in the past several years. Data generated from 
the Federal Procurement Data System for fiscal years 2019 through 2022 
indicates that DoD has awarded an average of 32,326 contracts for 
specific product and service codes related to firefighting supplies, 
equipment, and services to approximately 643 unique small entities 
during the three-year period. While DoD is unable to identify how many 
unique small entities of the 643 currently supply fire-fighting agent 
to DoD, to the extent they do supply fire-fighting agent, they will 
most likely continue to do so, whether supplying PFAS-free fire-
fighting agent or supplying AFFF under the exemption for use solely on 
ocean-going vessels. Further, any PFAS-free replacement product will 
most likely follow existing supply channels.
    The rule does not impose any new reporting, recordkeeping, or 
compliance requirements.
    There are no practical alternatives that will accomplish the 
objectives of the statute.

VIII. Paperwork Reduction Act

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

List of Subjects in 48 CFR Parts 212, 213, 223, and 252

    Government procurement.

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

    Accordingly, the interim rule amending 48 CFR parts 212, 213, 223, 
and 252, which was published in the Federal Register at 88 FR 67604 on 
September 29, 2023, is adopted as a final rule with the following 
changes:

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

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

PART 212--ACQUISITION OF COMMERCIAL PRODUCTS AND COMMERCIAL 
SERVICES

0
2. Amend section 212.301 by revising paragraph (f)(ix) to read as 
follows:


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

* * * * *
    (f) * * *
    (ix) Part 223--Environment, Energy and Water Efficiency, Renewable 
Energy Technologies, Occupational Safety, and Drug-Free Workplace. (A) 
Use the clause

[[Page 20871]]

at 252.223-7008, Prohibition of Hexavalent Chromium, as prescribed in 
223.7306.
    (B) Use the clause at 252.223-7009, Prohibition of Procurement of 
Fluorinated Fire-Fighting Agent for Use on Military Installations, as 
prescribed at 223.7404 to comply with section 322(b), (c), and (d) of 
the National Defense Authorization Act for Fiscal Year 2020 (Pub. L. 
116-92).
* * * * *

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

0
3. Revise and republish section 223.7402 to read as follows:


223.7402  Prohibition.

    Do not procure any fire-fighting agent that contains in excess of 
one part per billion perfluoroalkyl substances or polyfluoroalkyl 
substances. Procurements of fire-fighting agent for use solely onboard 
ocean-going vessels are exempt from this prohibition.

0
4. Revise and republish section 223.7403 to read as follows:


223.7403  Procedures.

    Contracting officers shall not issue a solicitation for any fire-
fighting agent that contains perfluoroalkyl or polyfluoroalkyl 
substances in excess of one part per billion, unless the requiring 
activity provides documentation of the exemption at 223.7402. The 
contracting officer shall maintain the documentation in the contract 
file.


223.7404  [Amended]

0
5. Amend section 223.7404 by removing ``Fluorinated Aqueous Film-
Forming Foam Fire-Fighting'' and adding ``Fluorinated Fire-Fighting'' 
in its place.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
6. Revise and republish section 252.223-7009 to read as follows:


252.223-7009  Prohibition of Procurement of Fluorinated Fire-Fighting 
Agent for Use on Military Installations.

    As prescribed in 223.7404, use the following clause:

Prohibition of Procurement of Fluorinated Fire-Fighting Agent for Use 
on Military Installations (Mar 2024)

    (a) Definitions. As used in this clause, perfluoroalkyl 
substances and polyfluoroalkyl substances have the meanings given in 
section 322(f) of the National Defense Authorization Act for Fiscal 
Year 2020 (Pub. L. 116-92).
    (b) Prohibition. The Contractor shall not provide or use under 
this contract any fire-fighting agent that contains perfluoroalkyl 
substances or polyfluoroalkyl substances in excess of one part per 
billion.
    (c) Subcontracts. The Contractor shall include the substance of 
this clause, including this paragraph (c), in all subcontracts, 
including subcontracts for commercial products and commercial 
services, relating to fire-fighting on a military installation.


(End of clause)

[FR Doc. 2024-06003 Filed 3-25-24; 8:45 am]
BILLING CODE 6001-FR-P