Rule2024-06003
Defense Federal Acquisition Regulation Supplement: Replacement of Fluorinated Aqueous Film-Forming Foam (DFARS Case 2020-D011)
Primary source
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Published
March 26, 2024
Effective
March 26, 2024
Issuing agencies
Defense DepartmentDefense Acquisition Regulations System
Abstract
DoD is adopting as final, with changes, 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 that prohibits DoD procurement of fluorinated aqueous film-forming foam containing in excess of one part per billion of perfluoroalkyl and polyfluoroalkyl substances after October 1, 2023, unless an exemption applies.
Full Text
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<title>Federal Register, Volume 89 Issue 59 (Tuesday, March 26, 2024)</title>
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[Federal Register Volume 89, Number 59 (Tuesday, March 26, 2024)]
[Rules and Regulations]
[Pages 20869-20871]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-06003]
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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: Final rule.
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SUMMARY: DoD is adopting as final, with changes, 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 that prohibits DoD procurement of fluorinated aqueous
film-forming foam containing in excess of one part per billion of
perfluoroalkyl and polyfluoroalkyl substances after October 1, 2023,
unless an exemption applies.
DATES: Effective March 26, 2024.
FOR FURTHER INFORMATION CONTACT: David Johnson, telephone 202-913-5764.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published an interim rule in the Federal Register at 88 FR
67604 on September 29, 2023, 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 fire-
fighting agent containing in excess of one part per billion of
perfluoroalkyl and polyfluoroalkyl substances (PFAS) after October 1,
2023, unless an exemption applies. One respondent submitted a public
comment in response to the interim rule.
II. Discussion and Analysis
DoD reviewed the public comment in the development of the final
rule. A discussion of the comment and the changes made to the rule as a
result of those comments is provided, as follows:
A. Summary of Significant Changes From the Interim Rule
There are no significant changes from the interim rule based on the
public comments.
B. Analysis of Public Comments
1. Exemption for Ocean-Going Vessels
Comment: The respondent recommended the exemption for procurement
of aqueous film-forming foam (AFFF) for use solely on ocean-going
vessels be removed from the final rule.
Response: The respondent's recommendation cannot be accepted
because removing the exemption for procurement of AFFF for use solely
on ocean-going vessels from the final rule would be inconsistent with
implementing section 322. The exemption for use on ocean-going vessels
is explicitly stated in section 322.
2. Use of the Term ``PFAS''
Comment: The respondent suggested the rule consistently use the
term ``PFAS'' in the context of the statutory prohibition.
Response: Concur. The rule employs the term ``perfluoroalkyl
substances and polyfluoroalkyl substances,'' in accordance with the
language of section 322, which is also referred to as ``PFAS.''
3. Out-of-Scope Comments
Comment: The respondent suggested manufacturers of PFAS-containing
fire-fighting agents would face technical challenges when transitioning
to manufacture of PFAS-free fire-fighting agents. The respondent also:
<bullet> Opined on the cleanup and remediation of PFAS spills.
<bullet> Suggested use of PFAS-containing fire-fighting agents
should be criminalized.
<bullet> Suggested continued use of PFAS-containing fire-fighting
agents in accordance with MIL-PRF-24385F(SH) would hamper military
recruitment.
<bullet> Provided written materials that describe the dangers of
PFAS exposure both to humans, particularly fire fighters, and to the
environment and that document the transition of various entities away
from use of fluorinated fire-fighting agents.
Response: These comments do not directly relate to implementation
of
[[Page 20870]]
section 322 and are outside the scope of this rule.
C. Other Changes
The final rule removes the incorrect reference to MIL-PRF-
24385F(SH) in favor of stating the statutory standard of perfluoroalkyl
or polyfluoroalkyl substances not in excess of one part per billion.
The final rule also uses the term ``fire-fighting agent'' consistently
throughout the DFARS text within the meaning of the statutory
prohibition implemented under this rule. The qualifier ``after October
1, 2023'' is deleted in the final rule as unnecessary because that date
has passed.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT), for Commercial Products (Including Commercially
Available Off-the-Shelf (COTS) Items), and for Commercial Services
The clause at DFARS 252.223-7009, Prohibition of Procurement of
Fluorinated Aqueous Fire-Fighting Agent for Use on Military
Installations, is prescribed at DFARS 223.7404 for use in solicitations
and contracts, including solicitations and contracts using Federal
Acquisition Regulation (FAR) part 12 (48 CFR part 12) procedures for
the acquisition of commercial products and commercial services,
relating to fire-fighting on military installations. Consistent with
the determination that DoD made and discussed in the interim rule with
regard to the application of the requirements of section 322 of the
NDAA for FY 2020, the clause at DFARS 252.223-7009 applies to contracts
at or below the SAT, for the acquisition of commercial products
including COTS items, and to the acquisition of commercial services, as
defined at Federal Acquisition Regulation 2.101. For a discussion of
the rationale for DoD's determination, see the interim rule published
in the Federal Register (see section I of this preamble).
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
agents 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 agents to DoD. Moreover, DoD has already
significantly reduced its use of AFFF. 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, as amended.
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
A final regulatory flexibility analysis has been prepared
consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.
and is summarized as follows:
This 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 fire-
fighting agents 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 fire-fighting agents for use solely onboard ocean-going vessels.
In response to the interim rule, DoD received no comments relating
to the initial regulatory flexibility analysis.
This rule is not expected to affect significant numbers of small
entities, because DoD has significantly reduced the use of aqueous
film-forming foam (AFFF) 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, whether supplying PFAS-free fire-
fighting agent or supplying AFFF under the exemption for use solely on
ocean-going vessels. 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.
There are no practical alternatives that will accomplish the
objectives of the statute.
VIII. Paperwork Reduction Act
This final 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, 213, 223, and 252
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.
Accordingly, the interim rule amending 48 CFR parts 212, 213, 223,
and 252, which was published in the Federal Register at 88 FR 67604 on
September 29, 2023, is adopted as a final rule with the following
changes:
0
1. The authority citation for 48 CFR parts 212, 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 by revising paragraph (f)(ix) to read as
follows:
212.301 Solicitation provisions and contract clauses for the
acquisition of commercial products and commercial services.
* * * * *
(f) * * *
(ix) Part 223--Environment, Energy and Water Efficiency, Renewable
Energy Technologies, Occupational Safety, and Drug-Free Workplace. (A)
Use the clause
[[Page 20871]]
at 252.223-7008, Prohibition of Hexavalent Chromium, as prescribed in
223.7306.
(B) Use the clause at 252.223-7009, Prohibition of Procurement of
Fluorinated 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 223--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE
ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE
0
3. Revise and republish section 223.7402 to read as follows:
223.7402 Prohibition.
Do not procure any fire-fighting agent 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.
0
4. Revise and republish section 223.7403 to read as follows:
223.7403 Procedures.
Contracting officers shall not issue a solicitation for any fire-
fighting agent that contains perfluoroalkyl or polyfluoroalkyl
substances in excess of one part per billion, 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 [Amended]
0
5. Amend section 223.7404 by removing ``Fluorinated Aqueous Film-
Forming Foam Fire-Fighting'' and adding ``Fluorinated Fire-Fighting''
in its place.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
6. Revise and republish section 252.223-7009 to read as follows:
252.223-7009 Prohibition of Procurement of Fluorinated Fire-Fighting
Agent for Use on Military Installations.
As prescribed in 223.7404, use the following clause:
Prohibition of Procurement of Fluorinated Fire-Fighting Agent for Use
on Military Installations (Mar 2024)
(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 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 commercial products and commercial
services, relating to fire-fighting on a military installation.
(End of clause)
[FR Doc. 2024-06003 Filed 3-25-24; 8:45 am]
BILLING CODE 6001-FR-P
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</html>Indexed from Federal Register on March 26, 2024.
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