Federal Register / Vol. 75, No. 67 / Thursday, April 8, 2010 / Proposed Rules 18041 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 223 and 252 

RIN 0750–AG35 

Defense Federal Acquisition 

Regulation Supplement; Minimizing 

Use of Hexavalent Chromium (DFARS 

Case 2009–D004) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Proposed rule with request for 

comments. 

SUMMARY: DoD is proposing to amend 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

address requirements for minimizing 

the use of hexavalent chromium in 

defense weapon systems, subsystems, 

components, and other items. The 

proposed rule prohibits the delivery of 

items containing hexavalent chromium 

under DoD contracts unless an 

exception applies. 

DATES: Comments on the proposed rule 

should be submitted in writing to the 

address shown below on or before June 

7, 2010, to be considered in the 

formation of the final rule. 

ADDRESSES: You may submit comments, 

identified by DFARS Case 2009–D004, 

using any of the following methods: 

Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

E-mail: dfars@osd.mil. Include 

DFARS Case 2009–D004 in the subject 

line of the message. 

Fax: 703–602–7887. 

Mail: Defense Acquisition Regulations 

System, Attn: Ms. Cassandra Freeman, 

OUSD (AT&L) DPAP (DARS), 3060 

Defense Pentagon, Room 3B855, 

Washington, DC 20301–3060. 

Comments received generally will be 

posted without change to http:// 

www.regulations.gov, including any 

personal information provided. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Cassandra Freeman, 703–602–8383. 

SUPPLEMENTARY INFORMATION: 

A. Background 

Hexavalent chromium is a significant 

chemical in numerous DoD weapon 

systems and platforms due to its 

corrosion protection properties. On 

April 8, 2009, the Under Secretary of 

Defense (Acquisition, Technology and 

Logistics) issued a memorandum 

establishing policy for the minimization 

of hexavalent chromium use throughout 

DoD (https://www.denix.osd.mil/portal/ 

page/portal/denix/environment/ 

MERIT). 

This proposed rule adds a new 

DFARS subpart and a corresponding 

contract clause to address requirements 

for minimizing the use of hexavalent 

chromium in defense items. 

This rule was subject to Office of 

Management and Budget review under 

Executive Order 12866, dated 

September 30, 1993. 

B. 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 proposed rule is 

consistent with national and 

international restrictions and controls 

on the use of hexavalent chromium. 

Therefore, DoD has not performed an 

initial regulatory flexibility analysis. 

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 2009–D004) in 

correspondence. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply, because the proposed rule 

does not contain any information 

collection requirements that require the 

approval of the Office of Management 

and Budget under 44 U.S.C. 3501, et 

seq. 

List of Subjects in 48 CFR Parts 223 and 

252 

Government procurement. 

Ynette R. Shelkin, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, DoD proposes to amend 48 

CFR parts 223 and 252 as follows: 

1. The authority citation for 48 CFR 

parts 223 and 252 continues to read as 

follows: 

Authority: 41 U.S.C. 421 and 48 CFR 

chapter 1. 

PART 223—ENVIRONMENT, ENERGY 

AND WATER EFFICIENCY, 

RENEWABLE ENERGY 

TECHNOLOGIES, OCCUPATIONAL 

SAFETY, AND DRUG-FREE 

WORKPLACE 

2. Add subpart 223.73 to read as 

follows: 

Subpart 223.73—Minimizing the Use of 

Hexavalent Chromium 

Sec. 

223.7301 Policy. 

223.7302 Prohibition. 

223.7303 Exceptions. 

223.7304 Contract clause. 

223.7301 Policy. 

It is DoD policy to minimize the use 

of hexavalent chromium (an anticorrosive) due to the serious human 

health and environmental risks related 

to its use. 

223.7302 Prohibition. 

Except as provided in section 

223.7303, no DoD contract may include 

a specification or standard that results 

in a deliverable containing hexavalent 

chromium or the use of hexavalent 

chromium in contract performance. This 

prohibition is in addition to any 

imposed by the Clean Air Act regardless 

of the place of performance. 

223.7303 Exceptions. 

The prohibition in 223.7302 does not 

apply— 

(a) If the use of hexavalent chromium 

is specifically authorized at a level no 

lower than a general or flag officer or a 

member of the Senior Executive Service 

from the Program Executive Office or 

equivalent level, in coordination with 

the component Corrosion Control and 

Prevention Executive. Forward any 

request for approval to allow the 

delivery or use of products or materials 

containing hexavalent chromium to the 

cognizant technical representative for 

evaluation and, if necessary, 

authorization by the appropriate official. 

(b) To legacy systems and their related 

parts, subsystems, and components that 

already contain hexavalent chromium. 

However, alternatives to hexavalent 

chromium shall be considered during 

system modifications, follow-on 

procurements of legacy systems, or 

maintenance procedure updates. 

223.7304 Contract clause. 

Unless an exception has been 

authorized in accordance with 

223.7303, use the clause at 252.223– 

7XXX, Prohibition on Use of Hexavalent 

Chromium, in solicitations and 

contracts for supplies, maintenance and 

repair services, or construction. 


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18042 Federal Register / Vol. 75, No. 67 / Thursday, April 8, 2010 / Proposed Rules 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

3. Add section 252.223–7XXX to read 

as follows: 

252.223–7XXX, Prohibition on use of 

hexavalent chromium. 

As prescribed in 223.7304, use the 

following clause: 

PROHIBITION ON USE OF HEXAVALENT 

CHROMIUM (DATE) 

(a) Definitions. As used in this clause— 

Homogeneous material means a material 

that cannot be mechanically disjointed into 

different materials and is of uniform 

composition throughout. 

Mechanically disjointed means that the 

materials can be, in principle, separated by 

mechanical actions such as unscrewing, 

cutting, crushing, grinding, and abrasive 

processes. 

(b) Prohibition. Unless otherwise specified 

by the Contracting Officer, the Contractor 

shall not provide any deliverables under this 

contract, or use materials in performance of 

this contract, that contain hexavalent 

chromium in a concentration greater than 0.1 

percent by weight in any homogeneous 

material. 

(c) Liability. The Contractor is financially 

liable for any damages resulting from use or 

delivery of any materials that contain 

unapproved hexavalent chromium. 

(d) Subcontracts. The Contractor shall 

include the substance of this clause, 

including this paragraph (d), in all 

subcontracts for supplies, maintenance and 

repair services, or construction materials. 

(End of clause) 

[FR Doc. 2010–7262 Filed 4–7–10; 8:45 am] 

BILLING CODE 5001–08–P 


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