Rule2023-20800
Defense Federal Acquisition Regulation Supplement: Replacement of Fluorinated Aqueous Film Forming Foam (DFARS Case 2020-D011)
Primary source
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Published
September 29, 2023
Effective
October 1, 2023
Issuing agencies
Defense DepartmentDefense Acquisition Regulations System
Abstract
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.
Full Text
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<title>Federal Register, Volume 88 Issue 188 (Friday, September 29, 2023)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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
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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: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
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
<a href="https://www.regulations.gov">https://www.regulations.gov</a>, including any personal information
provided. To confirm receipt of your comment(s), please check <a href="https://www.regulations.gov">https://www.regulations.gov</a>, 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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