[Federal Register Volume 88, Number 188 (Friday, September 29, 2023)]
[Rules and Regulations]
[Pages 67604-67607]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-20800]



[[Page 67603]]

Vol. 88

Friday,

No. 188

September 29, 2023

Part V





Department of Defense





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Defense Acquisition Regulations System





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48 CFR Parts 207, 209, 212, et al.





Defense Federal Acquisition Regulation Supplements: Interim Rules and 
Proposed Rule

Federal Register / Vol. 88, No. 188 / Friday, September 29, 2023 / 
Rules and Regulations

[[Page 67604]]


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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: Interim rule.

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SUMMARY: DoD is issuing 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.

DATES: Effective October 1, 2023.
    Comments on the interim rule should be submitted in writing to the 
address shown below on or before November 28, 2023, to be considered in 
the formation of a final rule.

ADDRESSES: Submit comments identified by DFARS Case 2020-D011, using 
any of the following methods:
    [cir] Federal eRulemaking Portal: https://www.regulations.gov. 
Search for ``DFARS Case 2020-D011.'' Select ``Comment'' and follow the 
instructions to submit a comment. Please include your name, company 
name (if any), and ``DFARS Case 2020-D011'' on any attached documents.
    [cir] Email: <a href="/cdn-cgi/l/email-protection#cfa0bcabe1aba9aebdbc8fa2aea6a3e1a2a6a3"><span class="__cf_email__" data-cfemail="c9a6baade7adafa8bbba89a4a8a0a5e7a4a0a5">[email protected]</span></a>. Include DFARS Case 2020-D011 in 
the subject line of the message.
    Comments received will generally be posted without change to 
https://www.regulations.gov, including any personal information 
provided. To confirm receipt of your comment(s), please check https://www.regulations.gov, approximately two to three days after submission 
to verify posting.

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

SUPPLEMENTARY INFORMATION: 

I. Background

    This interim rule revises the DFARS 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 fluorinated aqueous film-forming foam (AFFF) containing 
in excess of one part per billion of perfluoroalkyl and polyfluoroalkyl 
substances (PFAS) after October 1, 2023, unless an exemption applies. 
Section 322 also requires publication not later than January 31, 2023, 
of a military specification for a fluorine-free fire-fighting agent for 
use at all military installations and availability of such agent for 
use not later than October 1, 2023. After October 1, 2024, fluorinated 
AFFF may not be used at any military installation, unless the Secretary 
of Defense waives the prohibition on use.
    AFFF is used by DoD to rapidly extinguish fuel fires and protect 
against catastrophic loss of life and property; however, AFFF has been 
found to contain PFAS. In May 2016, the U.S. Environmental Protection 
Agency issued a lifetime drinking water health advisory for 
perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA) of 
70 parts per trillion. PFOS and PFOA are only two of the hundreds of 
PFAS chemicals widely used throughout the United States. DoD ended 
land-based use of fluorinated AFFF except in emergencies in January 
2016 and more recently ceased its use in fire-fighting training. When 
emergencies occur that necessitate the use of fluorinated AFFF, DoD 
treats the fluorinated AFFF release as a spill and therefore conducts 
clean-up efforts to protect ground water from being impacted. 
Additionally, DoD updated the military specification (MILSPEC) for AFFF 
to ensure that new supplies available for emergency firefighting 
responses do not contain detectable levels of PFOS or PFOA. This new 
MILSPEC, MIL-PRF-24385, for PFAS-free fire suppression went into effect 
January 31, 2023.

II. Discussion and Analysis

    To implement section 322, this interim rule adds a new subpart at 
DFARS 223.74, Prohibition on Procurement of Certain Items Containing 
Perfluoroalkyl or Polyfluoroalkyl Substances, to ensure contracting 
officers do not procure AFFF having more than one part per billion of 
PFAS after October 1, 2023, unless an exception applies. The statute 
provides an exemption for shipboard use, specifically use onboard 
ocean-going vessels. The interim rule includes a new definition of 
``ocean-going vessels'' to ensure a standard application of the 
exemption authority throughout the DoD contracting workforce.
    This interim rule adds a new clause at DFARS 252.223-7009, 
Prohibition of Procurement of Fluorinated Aqueous Film-Forming Foam 
Fire-Fighting Agent for Use on Military Installations, which prohibits 
contractors from providing any fire-fighting agent after October 1, 
2023, that contains PFAS in excess of one part per billion. The clause 
will flow down to subcontracts for fire-fighting agent for use on a 
military installation to prevent unintentional procurement of the 
prohibited fire-fighting agent through the supply chain.
    Conforming changes are made at DFARS 212.301 to add the new DFARS 
clause 252.223-7009 to the listing of solicitation provisions and 
contract clauses for the acquisition of commercial products and 
commercial services. DFARS 213.201(f) is added to apply the prohibition 
at 223.7402 to purchases at or below the micro-purchase threshold.

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

    This interim rule creates a new clause at DFARS 252.223-7009, 
Prohibition of Procurement of Fluorinated Aqueous Film-Forming Foam 
Fire-Fighting Agent for Use on Military Installations. The clause is 
prescribed for use in solicitations and contracts that include fire-
fighting foam supplies and services that include aqueous film-forming 
foam for use on a military installation. DoD is applying the 
requirements of section 322 of the NDAA for FY 2020 to contracts at or 
below the SAT and to contracts for the acquisition of commercial 
services and commercial products, including COTS items.

A. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold

    41 U.S.C. 1905 governs the applicability of laws to contracts or 
subcontracts in amounts not greater than the simplified acquisition 
threshold. It is intended to limit the applicability of laws to such 
contracts or subcontracts. 41 U.S.C. 1905 provides that if a provision 
of law contains criminal or civil penalties, or if the Federal 
Acquisition Regulatory Council makes a written determination that it is 
not in the best interest of the Federal Government to exempt contracts 
or subcontracts at or below the SAT, the law will apply to them. The 
Principal Director, Defense Pricing and Contracting (DPC), is the 
appropriate authority to make comparable determinations for regulations 
to be published in the DFARS, which is part of the Federal Acquisition 
Regulation system of regulations. DoD has made

[[Page 67605]]

that determination. Therefore, this rule applies at or below the 
simplified acquisition threshold.

B. Applicability to Contracts for the Acquisition of Commercial 
Products Including COTS Items and for the Acquisition of Commercial 
Services

    10 U.S.C. 3452 exempts contracts for the acquisition of commercial 
products, including COTS items, and commercial services from provisions 
of law enacted after October 13, 1994, unless the Under Secretary of 
Defense for Acquisition and Sustainment (USD(A&S)) makes a written 
determination that it would not be in the best interest of DoD to 
exempt contracts for the procurement of commercial products and 
commercial services from the applicability of the provision or contract 
requirement, except for a provision of law that--
    <bullet> Provides for criminal or civil penalties;
    <bullet> Requires that certain articles be bought from American 
sources pursuant to 10 U.S.C. 4862 (previously 10 U.S.C. 2533c), or 
that strategic materials critical to national security be bought from 
American sources pursuant to 10 U.S.C. 4863 (previously 10 U.S.C. 
2533b); or
    <bullet> Specifically refers to 10 U.S.C. 3452 and states that it 
shall apply to contracts and subcontracts for the acquisition of 
commercial products (including COTS items) and commercial services.
    The statute implemented in this rule does not impose criminal or 
civil penalties, does not require purchase pursuant to 10 U.S.C. 4862 
or 4863, and does not refer to 10 U.S.C. 3452. Therefore, section 322 
will not apply to the acquisition of commercial services or commercial 
products including COTS items unless a written determination is made. 
Due to delegations of authority, the Principal Director, DPC is the 
appropriate authority to make this determination. DoD has made that 
determination. Therefore, this rule applies to the acquisition of 
commercial products including COTS items and to the acquisition of 
commercial services.

C. Determination

    Given that the requirements of section 322 of the NDAA for FY 2020 
were enacted to prohibit the purchase and use of fluorinated AFFF, and 
the product is procured commercially as a supply or is included in 
contracts for certain services, DoD has determined that it is in the 
best interest of the Federal Government to apply the rule to contracts 
for the acquisition of commercial services and commercial products 
including COTS items, as defined at FAR 2.101. An exception for 
contracts for the acquisition of commercial services and commercial 
products, including COTS items, would exclude contracts intended to be 
covered by the law, thereby undermining the overarching purpose of the 
law.

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 
foams 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 foams to DoD. Moreover, DoD has already 
significantly reduced the use of AFFF since ending both land-based use 
and use in training exercises in the past several years.
    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, dated September 30, 1993.

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

    DoD does not expect this 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 DoD has 
significantly reduced the procurement and use of AFFF. However, an 
initial regulatory flexibility analysis has been performed and is 
summarized as follows:
    This interim 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 
aqueous film-forming foam (AFFF), which is used to fight fires, 
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 use onboard 
ocean-going vessels.
    The objective of the rule is to ensure contracting officers do not 
procure and contractors do not provide or use the prohibited 
fluorinated AFFF unless an exemption applies. The legal basis of the 
rule is section 322 of the NDAA for FY 2020.
    This rule is not expected to affect significant numbers of small 
entities, because DoD has significantly reduced the use of AFFF since 
ending both use in training exercises and land-based use 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, 
assuming the use is exempt, or a waiver has been granted. 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.
    The rule does not duplicate, overlap, or conflict with any other 
Federal rules.
    There are no practical alternatives that will accomplish the 
objectives of the statute.
    DoD invites comments from small business concerns and other 
interested parties on the expected impact of this rule on small 
entities.

[[Page 67606]]

    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-D011), in 
correspondence.

VIII. Paperwork Reduction Act

    This interim 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).

IX. Determination To Issue an Interim Rule Effective in Less Than 30 
Days

    A determination has been made under the authority of the Secretary 
of Defense that urgent and compelling reasons exist to promulgate this 
interim rule, effective in less than 30 days, without prior opportunity 
for public comment. This action must be effective in less than 30 days 
to implement section 322 of the NDAA for FY 2020 before its statutory 
prohibition on procurement of PFAS-containing AFFF takes effect on 
October 1, 2023. This rule both protects DoD personnel from PFAS 
exposure and limits the possibility of AFFF-related PFAS releases into 
the environment. In addition, the rule provides advance notice to 
contracting officers to reduce the risk of obligating funds for the 
purchase of PFAS-containing AFFF in violation of section 322. 
Therefore, its timely implementation is imperative.
    However, pursuant to 41 U.S.C. 1707 and FAR 1.501-3(b), DoD will 
consider public comments received in response to this interim rule in 
the formation of the final rule.

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

    Government procurement.

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

    Therefore, 48 CFR parts 212, 213, 223, and 252 are amended as 
follows:

0
1. The authority citation for parts 212, 213, 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--
0
a. By designating paragraph (f)(viii) as (f)(viii)(A) and
0
b. By adding a new paragraph (f)(viii)(B).
    The addition reads as follows:


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

* * * * *
    (f) * * *
    (viii) * * *
    (B) Use the clause at 252.223-7009, Prohibition of Procurement of 
Fluorinated Aqueous Film-Forming Foam 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 213--SIMPLIFIED ACQUISITION PROCEDURES

0
3. Amend section 213.201 by adding new paragraph (f) to read as 
follows:


213.201   General.

    (f) Notwithstanding FAR 13.201(f), apply the prohibition at 
223.7402 to purchases at or below the micro-purchase threshold.
* * * * *

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

0
4. Add subpart 223.74 to read as follows:
Subpart 223.74--Prohibition on Procurement of Certain Items Containing 
Perfluoroalkyl or Polyfluoroalkyl Substances
Sec.
223.7400 Scope of subpart.
223.7401 Definition.
223.7402 Prohibition.
223.7403 Procedures.
223.7404 Contract clause.

Subpart 223.74--Prohibition on Procurement of Certain Items 
Containing Perfluoroalkyl or Polyfluoroalkyl Substances


223.7400  Scope of subpart.

    This subpart implements section 322(b), (c), and (d) of the 
National Defense Authorization Act for Fiscal Year 2020 (Pub. L. 116-
92).


223.7401  Definition.

    As used in this subpart--
    Ocean-going vessel means a vessel over 59 feet in length owned or 
operated by DoD or the U.S. Coast Guard, other than vessels that are 
chartered by the Armed Forces on a time or voyage basis.


223.7402  Prohibition.

    After October 1, 2023, do not procure aqueous film-forming foam, 
which is used for fighting fires, 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.


223.7403  Procedures.

    After October 1, 2023, contracting officers shall only issue a 
solicitation to procure fire-fighting foam in accordance with 
performance specification MIL-PRF-24385F(SH), 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  Contract clause.

    Use the clause at 252.223-7009, Prohibition of Procurement of 
Fluorinated Aqueous Film-Forming Foam Fire-Fighting Agent for Use on 
Military Installations, in solicitations and contracts, including 
solicitations and contracts using FAR part 12 procedures for the 
acquisition of commercial products and commercial services, relating to 
fire-fighting on military installations.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
5. Add section 252.223-7009 to read as follows:


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

    As prescribed in 223.7404, use the following clause:

Prohibition of Procument of Flourinated Aqueous Film-Forming Foam Fire-
Fighting Agent for Use on Military Installations (Oct 2023)

    (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 aqueous film-forming foam 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

[[Page 67607]]

commercial products and commercial services, relating to fire-
fighting on a military installation.


(End of clause)

[FR Doc. 2023-20800 Filed 9-28-23; 8:45 am]
BILLING CODE 5001-06-P


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