[Federal Register Volume 79, Number 19 (Wednesday, January 29, 2014)]
[Proposed Rules]
[Pages 4648-4652]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-01277]
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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: Proposed rule.
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[[Page 4649]]
SUMMARY: DoD is proposing to amend 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: Comment Date: Comments on the proposed rule should be submitted
in writing to the address shown below on or before March 31, 2014, to
be considered in the formation of a final rule.
ADDRESSES: Submit comments identified by DFARS Case 2013-D013, using
any of the following methods:
[cir] Regulations.gov: http://www.regulations.gov. Submit comments
via the Federal eRulemaking portal by entering ``DFARS Case 2013-D013''
under the heading ``Enter keyword or ID'' and selecting ``Search.''
Select the link ``Submit a Comment'' that corresponds with ``DFARS Case
2013-D013.'' Follow the instructions provided at the ``Submit a
Comment'' screen. Please include your name, company name (if any), and
``DFARS Case 2013-D013'' on your attached document.
[cir] Email: [email protected]. Include DFARS Case 2013-D013 in the
subject line of the message.
[cir] Fax: 571-372-6094.
[cir] Mail: Defense Acquisition Regulations System, Attn: Ms. Susan
Williams, OUSD(AT&L)DPAP/DARS, Room 3B855, 3060 Defense Pentagon,
Washington, DC 20301-3060.
Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To
confirm receipt of your comment(s), please check www.regulations.gov,
approximately two to three days after submission to verify posting
(except allow 30 days for posting of comments submitted by mail).
FOR FURTHER INFORMATION CONTACT: Ms. Susan Williams, Defense
Acquisition Regulations System, OUSD(AT&L)DPAP/DARS, Room 3B855, 3060
Defense Pentagon, Washington, DC 20301-3060. Telephone 571-372-6092;
facsimile 571-372-6101.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is proposing to amend DFARS subpart 223.71, currently titled
``Storage and Disposal of Toxic and Hazardous Materials,'' to conform
subpart 223.71 to 10 U.S.C. 2692. Additionally, the contract clause at
252.223.7006 is being reformatted to facilitate the use of automated
contract writing systems.
As part of DoD's retrospective analysis, a review of DFARS part 223
was conducted for the purpose of streamlining the regulations. It was
determined that additional clarification to DFARS 223 is needed to
assure compliance with existing standards under 10 U.S.C. 2692,
entitled Storage, Treatment, and Disposal of Nondefense Toxic and
Hazardous Materials. Originally, DAR case 92-D361 was opened in 1993 to
address the requirements of the Defense Authorization Act for Fiscal
Year 1993 (Pub. L. 102-484), which modified 10 U.S.C. 2692. An interim
rule, DAR case 92-D361, was published in the Federal Register on May
13, 1993, (58 FR 28458) to implement the requirements of 10 U.S.C. 2692
and DoD Directive 6050.8. Prior to the interim rule, no coverage
existed in the DFARS. However, DoD Directive 6050.8, Storage and
disposal of non-DOD owned hazardous or toxic materials on DoD
installations, had been previously issued on February 27, 1986, to
cover the requirements of 10 U.S.C. 2692. Over the years a number of
amendments to the statute have been issued. DoD Directive 6050.8 was
cancelled on September 10, 1998, as having served its purpose.
Accordingly, this rule proposes to amend DFARS 223.71 to better align
the DFARS to the current provisions set forth in 10 U.S.C. 2692 by--
Revising text to reflect current language and restrictions
contained within the statute;
Reorganizing and partially rewriting sections to provide
greater clarity to contracting officers;
Adding a new clause prescription under 223.7104; and
Revising the basic clause and alternate to require
flowdown of the clause to subcontractors.
A. Discussion
This rule proposes to make the following changes:
Revise the 223.71 heading by adding the word ``treatment''
and changing ``toxic and hazardous'' to ``toxic or hazardous''. The
revised heading is ``Storage, Treatment, and Disposal of Toxic or
Hazardous Materials''.
Add a new section 223.7101, Definitions, to include the
terms ``storage'' and ``toxic or hazardous materials'' and provide a
cross reference to clause 252.223-7006, ``Prohibition on Storage,
Treatment, and Disposal of Toxic or Hazardous Materials,'' where the
terms are defined. The remaining sections in subpart 223.71 are
renumbered as a result of adding the new section 223.7101, Definitions.
Redesignate 223.7100, Policy, as section 223.7102, Policy.
The redesignated section 223.7102, paragraph (a) adds the term
``treatment'' to the 10 U.S.C. 2692 list of prohibited actions and
includes a statement that the prohibition applies to 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.'' A new paragraph (b), implementing 10 U.S.C. 2692(c)(2), is
added to state that when storage of toxic or hazardous materials is
authorized based on imminent danger, the storage provided is required
to be temporary and must cease once the imminent danger no longer
exists. In all other cases, the storage or disposal is required to be
terminated as determined by the Secretary.
Redesignate 223.7101, Procedures, as section 223.7103,
Procedures. The following changes are made to the redesignated section
223.7102. Paragraph (a) is redesignated as paragraph (b). The original
paragraph (b) is redesignated as subparagraph (a)(2) and revised for
purposes of clarity and to conform to 10 U.S.C. 2692(b)(11). A new
subparagraph (a)(1) is added to clearly identify and direct the reader
to the prohibition exceptions.
Redesignate 223.7102, Exceptions, as section 223.7104,
Exceptions. The following changes are made to the redesignated section
223.7104. Subparagraphs (a)(1) through (a)(9) are redesignated as
(a)(2) through (a)(10), new subparagraphs (a)(1) and (a)(11) are added
to the list of exceptions, and newly redesignated subparagraphs (a)(3),
(a)(9), and (a)(10) are revised. Paragraph (b) is revised to require an
additional finding by the Secretary of Defense that storage or disposal
would not compete with private enterprise (see 10 U.S.C. 2692(c)). The
additions and revisions to the redesignated section 223.7104 are as
discussed below.
Subparagraph (a)(1) adds an exemption to the prohibition for the
storage, treatment, or disposal of materials used in connection with an
activity of DoD or in connection with a service performed on a DoD
installation for the benefit of DoD (see 10 U.S.C. 2692(b)(1)).
Subparagraph (a)(3) is revised to expand the exception for storage
or disposal of explosives when no alternative exists to State or local
law enforcement under the conditions set forth in the subparagraph (see
10 U.S.C. 2692(b)(3)).
[[Page 4650]]
Subparagraph (a)(9) is revised to remove the term ``a private
person'' and expands the exception for the storage of toxic or
hazardous materials not owned by DoD but 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 (see 10 U.S.C. 2692(b)(9)).
Subparagraph (a)(10) is revised to remove the term ``non-DoD owned
material'' and replace it with ``toxic or hazardous materials not owned
by DoD'', remove the term ``by a private person,'' remove the language
concerning commercial use of an industrial facility and replace it to
reflect use of a facility of that military department when the
Secretary enters into a contract or agreement with the prospective
user, and replace the term ``that person's'' with ``the prospective
user's'' (see 10 U.S.C. 2692(b)(10)).
Subparagraph (a)(11) adds an exemption for the storage of material
not owned by DoD when the Secretary of the military department
concerned determines the material is required or generated in
connection with the use of a space launch facility on a DoD
installation or other land controlled by the United States (see 10
U.S.C. 2692(b)(11)).
A new section 223.7105, Reimbursement, is added to provide
that the Secretary of Defense may assess a charge for any storage or
disposal provided under the subpart. Any assessed costs shall be
identified in the contract and are required to be paid to the
Government on a reimbursable cost basis and (see 10 U.S.C. 2692(d)(1)).
Redesignate 223.7103, Contract clause, as section
223.7106, Contract clause, and revise the clause title to read
``Prohibition on Storage, Treatment, and Disposal of Toxic or Hazardous
Materials''. The changes made to the redesignated section 223.7106 are
discussed below.
Paragraph (a) revises the basic clause prescription by broadening
the clause application to include solicitations and contracts that may
require access to a DoD installation, unless a determination is made
under 223.7104(a)(10). Offerors and contractors requiring access to a
DoD installation will be put on notice of the prohibition of storing,
treating, or disposing of non-DoD toxic or hazardous waste on a DoD
installation.
Paragraph (b) is revised to reflect the revised title for the
alternate clause and the redesignation of 223.7102(a)(9) as
223.7104(a)(10).
The clause 252.223-7006 titled is revised to read
``Prohibition on Storage, Treatment, and Disposal of Toxic or Hazardous
Materials.'' New clause preface paragraphs (a) and (b) are added to
address use of the basic and alternate clauses. Additional changes are
made to the basic and alternate clauses as discussed below:
The basic clause is expanded to include the treatment and
reimbursement of costs to the Government. A requirement to flow down
the substance of the basic clause is also added.
The alternate clause is modified to reflect the redesignation of
223.7102(a)(9) as 223.7104(a)(10). The flowdown provision is expanded
to all subcontractors that may be permitted access to a DoD
installation. The alternate clause also clarifies that the substance of
the clause shall be flowed down to all subcontract tiers and that the
prime Contractor is not relieved of liability by flowing the substance
of the clause down to subcontractors.
B. Clause With an Alternate
In order to facilitate the use of automated contract writing
systems, DoD is processing multiple cases, by DFARS part, to modify the
naming convention for clauses with alternates, revise the clause
prescriptions and clause prefaces, and provide the full text of each
alternate in the regulation.
This rule proposes to revise the title of the basic clause and its
alternate, consistent with the new naming convention for clauses with
alternates. The title of the basic clause is revised to read
``Prohibition on Storage, Treatment, and Disposal of Toxic or Hazardous
Materials-Basic.'' Likewise, the title of the alternate clause is
revised to read ``Prohibition on Storage, Treatment, and Disposal of
Toxic or Hazardous Materials-Alternate'' in lieu of ``Alternate I''.
Providing the full text of the alternate clause in the regulation
should make the clause clearer to DoD contracting officers and to
offerors. The current convention for alternates is to show in the
regulation only the changed material that differs from the basic
solicitation provision or clause. Providing the full text of the
alternate in the regulation will clarify the paragraph substitutions.
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 a significant regulatory action and, therefore, is 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 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 objective of the rule is to conform the DFARS with the
statute regarding the storage, treatment, or disposal of toxic or
hazardous materials not owned by DoD on DoD installations and to
facilitate the use of automated contract writing systems. However, an
initial regulatory flexibility analysis has been performed and is
summarized as follows:
The legal basis for the rule is 10 U.S.C. 2692, as amended. DoD is
proposing to amend the Defense Federal Acquisition Regulation
Supplement (DFARS) to conform to the statute and apply the new paradigm
for clauses with alternates.
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. Although the rule does provide more exceptions to the
prohibition, as provided in 10 U.S.C. 2692, it also implements 10
U.S.C. 2692(d)(1), which provides that the Secretary of Defense may
assess a charge for any storage or disposal provided under this
section. Any such charge shall be on a reimbursable cost basis.
The rule does not duplicate, overlap, or conflict with any other
Federal rules. No alternatives were determined that will accomplish the
objectives of the rule.
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 2013-D013), in
correspondence.
[[Page 4651]]
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 proposed to be amended as
follows:
0
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
0
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 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
[[Page 4652]]
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 clause Prohibition on Storage, Treatment, and Disposal
of Toxic or Hazardous Materials-Basic, unless a determination is made
under 223.7104(a)(10).
(b) Use the clause Prohibition on Storage, Treatment and Disposal
of Toxic or Hazardous Materials-Alternate I, 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
0
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 (DATE)
(a) Definitions. As used in this clause--
Storage means a non-transitory, semi-permanent 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 revises and redesignates paragraph (c) of the basic
clause as paragraph (d), adds a new paragraph (c), and revises
paragraph (d).
PROHIBITION ON STORAGE, TREATMENT, AND DISPOSAL OF TOXIC OR HAZARDOUS
MATERIALS--ALTERNATE I (DATE)
(a) Definitions. As used in this clause--
Storage means a non-transitory, semi-permanent 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 permits 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).
(End of clause)
[FR Doc. 2014-01277 Filed 1-28-14; 8:45 am]
BILLING CODE 5001-06-P