Federal Register / Vol. 79, No. 189 / Tuesday, September 30, 2014 / Rules and Regulations 58697 

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: Final rule. 

SUMMARY: DoD is issuing a final rule 

amending 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: Effective September 30, 2014. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Lee Renna, telephone 571–372–6095. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD published a proposed rule in the 

Federal Register at 79 FR 4648 on 

January 29, 2014, to amend DFARS 

subpart 223.71 and the associated clause 

252.223–7006, Prohibition on Storage, 

Treatment, and Disposal of Toxic or 

Hazardous Materials. No public 

comments were submitted in response 

to the proposed rule. 

II. Discussion and Analysis 

This final rule amends DFARS 

subpart 223.71 to better align the 

DFARS with the current provisions set 

forth in 10 U.S.C. 2692 concerning 

storage, treatment, and disposal of 

nondefense toxic and hazardous 

materials. Additionally, the contract 

clause at 252.223–7006 is reformatted to 

facilitate the use of automated contract 

writing systems for clauses with 

alternates. 

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 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. 

IV. 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 final rule amends the Defense 

Federal Acquisition Regulation 

Supplement (DFARS) to conform the 

DFARS with the statute (10 U.S.C. 2692) 

regarding the storage, treatment, or 

disposal of toxic or hazardous materials 

not owned by DoD on DoD installations. 

The rule also applies the new paradigm 

for clauses with alternates to facilitate 

the use of automated contract writing 

systems. 

No comments were received from the 

public in response to the initial 

regulatory flexibility analysis. 

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. 

This rule does not add any new 

information collection, reporting, or 

record keeping requirements. No 

alternatives were identified that will 

accomplish the objectives of the rule. 

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 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. 

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 


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58698 Federal Register / Vol. 79, No. 189 / Tuesday, September 30, 2014 / Rules and Regulations 

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 

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 basic clause, unless a 

determination is made under 

223.7104(a)(10). 

(b) Use the alternate I clause 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. 

PROHIBITION ON STORAGE, 

TREATMENT, AND DISPOSAL OF 

TOXIC OR HAZARDOUS 

MATERIALS—BASIC (SEP 2014) 

(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) 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 adds a new paragraph (c) and 

revises and redesignates paragraph (c) of 

the basic clause as paragraph (d). 

PROHIBITION ON STORAGE, 

TREATMENT, AND DISPOSAL OF 

TOXIC OR HAZARDOUS 

MATERIALS—ALTERNATE I (SEP 

2014) 

(a) Definitions. As used in this clause— 


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Federal Register / Vol. 79, No. 189 / Tuesday, September 30, 2014 / Rules and Regulations 58699 

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. 

(d) The Contractor shall include the 

substance of this clause, including this 

paragraph (d), in all subcontracts that 

require, may require, or permit 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) of this 

clause. 

(End of clause) 

[FR Doc. 2014–22847 Filed 9–29–14; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 229 and 252 

RIN 0750–AI19 

Defense Federal Acquisition 

Regulation Supplement: Clauses With 

Alternates—Taxes (DFARS Case 2013– 

D025) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is issuing a final rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to create an overarching 

prescription for a tax-related clause with 

an alternate and add a separate 

prescription for the basic clause. The 

rule also includes in the regulation the 

full text of the alternate clause. 

DATES: Effective September 30, 2014. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Jennifer Hawes, telephone 571–372– 

6115. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD published a proposed rule in the 

Federal Register at 79 FR 11381 on 

February 28, 2014, to revise the 

presentation of the DFARS part 229 

clause with an alternate. No public 

comments were submitted in response 

to the proposed rule. 

II. Discussion 

This final rule revises the single 

DFARS part 229 clause, 252.229–7001, 

Tax Relief, which has an alternate. The 

naming convention results in proposed 

new clause titles, i.e., Tax Relief—Basic 

and Tax Relief—Alternate I. An 

umbrella prescription contains the 

elements common to the basic clause 

and the alternate. The specific 

prescriptions for the basic clause and 

the alternate address only the 

requirements for their use that enable 

the selection of the basic or the 

alternate. 

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 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. 

IV. 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 final rule amends the Defense 

Federal Acquisition Regulation 

Supplement (DFARS) to (1) create an 

umbrella prescription for the elements 

common to the basic clause and the 

alternate of DFARS clause 252.229– 

7001, Tax Relief, (2) create a specific 

prescription for the basic clause and 

alternate clause that address only the 

requirements for their use, and (3) 

include the full text of the alternate 

clause. 

No comments were received from the 

public in response to the initial 

regulatory flexibility analysis. 

There will be no impact on small 

business entities since DFARS clause 

252.229–7001 is used only in 

solicitations and contracts when award 

is made to a foreign concern and 

performance is in a foreign country. 

This rule does not add any new 

information collection, reporting, or 

record keeping requirements. No 

alternatives were identified that will 

accomplish the objectives of the rule. 

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 229 and 

252 

Government procurement. 

Manuel Quinones, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, 48 CFR parts 229 and 252 

are amended as follows: 

■ 1. The authority citation for 48 CFR 

parts 229 and 252 continues to read as 

follows: 

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

chapter 1. 


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