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[Federal Register Volume 77, Number 126 (Friday, June 29, 2012)]
[Rules and Regulations]
[Pages 39141-39142]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-15565]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 212, 244, and 252

RIN 0750-AH39

Defense Federal Acquisition Regulation Supplement: Applicability 
of Hexavalent Chromium Policy to Commercial Items (DFARS Case 2011-
D047)

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

ACTION: Final rule.

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SUMMARY: DoD is issuing a final rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to clarify the applicability 
to commercial items of DoD policies relating to the use of material 
containing hexavalent chromium.

DATES: Effective Date: June 29, 2012.

FOR FURTHER INFORMATION CONTACT: Mr. Dustin Pitsch, telephone 571-372-
6090.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD published a final rule (DFARS Case 2009-D004) in the Federal 
Register at 76 FR 25569 on May 5, 2011, to implement in the DFARS the 
DoD policy addressing the serious human health and environmental risks 
related to the use of hexavalent chromium. Hexavalent chromium is a 
chemical that has been used in numerous DoD weapons systems platforms 
due to its corrosion protection properties. However, hexavalent 
chromium is a known carcinogen. The final rule, codified in a new DFARS 
clause 252.223-7008, minimized the use of materials containing 
hexavalent chromium in items acquired by DoD. Shortly after the final 
rule was published, DoD became aware of a drafting oversight and the 
need to correct the text of final rule to reflect DoD's intent that the 
rule should apply to commercial items. This rule corrects that 
oversight.
    DoD published a proposed rule in the Federal Register at 76 FR 
71926 on November 21, 2011, to clarify the applicability to commercial 
items of DoD policies relating to the use of materials containing 
hexavalent chromium. One respondent submitted a public comment in 
response to the proposed rule.

II. Discussion and Analysis of the Public Comments

    DoD reviewed the public comment in the development of the final 
rule, which is discussed as follows.
    Comment: The respondent stated that requiring different standards 
for chromated defense products than are required of commercial products 
imposes a significant cost related to the need for additional training 
and wastes already limited factory space. The respondent also stated 
that bringing defense product finishes into line with commercial 
finishes without sacrificing performance and maintaining a single 
process should improve production, efficiency, and quality.
    Response: This comment is out of scope as the rule does not modify 
the DoD policy relating to the use of hexavalent chromium, it only 
clarifies the applicability of the previously published final rule. As 
such, the respondent's concerns are misplaced because this rule does 
not create any new requirements for commercial products; it simply 
makes clear the scope of applicability of DFARS clause 252.223-7008.

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

    DoD certifies that this final rule will not 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 is just correcting a drafting oversight in rule 2009-
D004 published on May 5, 2011 (76 FR 25569).

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 212, 244, and 252

    Government procurement.

Mary Overstreet,
Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR part 212, 244, and 252 are amended as follows:

0
1. The authority citation for 48 CFR parts 212, 244, and 252 continue 
to read as follows:

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

PART 212--ACQUISITION OF COMMERCIAL ITEMS

0
2. Amend section 212.301 by--
0
a. Redesignating paragraphs (f)(iv)(G) through (P) as paragraphs 
(f)(iv)(H) through (Q); and
0
b. Adding new paragraph (f)(iv)(G) to read as follows:

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

    (f) * * *

[[Page 39142]]

    (iv) * * *
    (G) Use the clause at 252.223-7008, Prohibition of Hexavalent 
Chromium, as prescribed at 223.7306.
* * * * *

PART 244--SUBCONTRACTING POLICIES AND PROCEDURES

0
3. Revise section 244.403 to read as follows:

244.403   Contract clause.

    Use the clause at 252.244-7000, Subcontracts for Commercial Items 
and Commercial Components (DoD Contracts), in solicitations and 
contracts for supplies or services other than commercial items that 
contain any of the clauses listed in the clause at 252.244-7000.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
4. Revise section 252.244-7000 to read as follows:

252.244-7000   Subcontracts for Commercial Items and Commercial 
Components (DoD Contracts).

    As prescribed in 244.403, use the following clause:

SUBCONTRACTS FOR COMMERCIAL ITEMS AND COMMERCIAL COMPONENTS (DOD 
CONTRACTS) (JUN 2012)

    In addition to the clauses listed in paragraph (c) of the 
Subcontracts for Commercial Items clause of this contract (Federal 
Acquisition Regulation 52.244-6), the Contractor shall include the 
terms of the following clauses, if applicable, in subcontracts for 
commercial items or commercial components, awarded at any tier under 
this contract:
    (a) 252.223-7008, Prohibition of Hexavalent Chromium (MAY 2011), 
if the subcontract is for supplies, maintenance and repair services, 
or construction materials.
    (b) 252.225-7009, Restriction on Acquisition of Certain Articles 
Containing Specialty Metals (JUN 2012) (10 U.S.C. 2533b), if flow 
down is required in accordance with paragraph (e) of DFARS clause 
252.225-7009.
    (c) 252.225-7039, Contractors Performing Private Security 
Functions (JUN 2012) (Section 862 of Pub. L. 110-181, as amended by 
section 853 of Pub. L. 110-417 and sections 831 and 832 of Pub. L. 
111-383), if the subcontract will be performed in areas of 
contingency operations, complex contingency operations, or other 
military operations or exercises designated by the Combatant 
Commander.
    (d) 252.227-7015, Technical Data--Commercial Items (DEC 2011), 
if applicable (see 227.7102-4(a)), if flow down is required in 
accordance with paragraph (e) of DFARS clause 252.227-7015.
    (e) 252.227-7037, Validation of Restrictive Markings on 
Technical Data (JUN 2012), if applicable (see 227.7102-4(c)), if the 
subcontract or supplier at any tier requires the delivery of 
technical data.
    (f) 252.236-7013, Requirement for Competition Opportunity for 
American Steel Producers, Fabricators, and Manufacturers (JAN 2009) 
(Pub. L. 110-329, Division E, Section 108), if the subcontract 
involves the acquisition of steel as a construction material.
    (g) 252.237-7010, Prohibition on Interrogation of Detainees by 
Contractor Personnel (NOV 2010) (Section 1038 of Pub. L. 111-84), if 
the subcontract may require subcontractor personnel to interact with 
detainees in the course of their duties.
    (h) 252.237-7019, Training for Contractor Personnel Interacting 
with Detainees (SEP 2006) (Section 1092 of Pub. L. 108-375), if the 
subcontract may require subcontractor personnel to interact with 
detainees in the course of their duties.
    (i) 252.246-7003, Notification of Potential Safety Issues (JAN 
2007), if flow down is required in accordance with paragraph (f) of 
DFARS clause 252.246-7003.
    (j) 252.247-7023, Transportation of Supplies by Sea (MAY 2002) 
(10 U.S.C. 2631), if flow down is required in accordance with 
paragraph (h) of DFARS clause 252.247-7023.
    (k) 252.247-7024, Notification of Transportation of Supplies by 
Sea (MAR 2000) (10 U.S.C. 2631), if flow down is required in 
accordance with paragraph (b) of DFARS clause 252.247-7024.

(End of clause)

[FR Doc. 2012-15565 Filed 6-28-12; 8:45 am]
BILLING CODE 5001-06-P
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