Rule2024-18108
Defense Federal Acquisition Regulation Supplement: Sustainable Procurement (DFARS Case 2024-D024)
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 15, 2024
Effective
August 15, 2024
Issuing agencies
Defense DepartmentDefense Acquisition Regulations System
Abstract
DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to align the DFARS with changes made to the Federal Acquisition Regulation.
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 158 (Thursday, August 15, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 158 (Thursday, August 15, 2024)]
[Rules and Regulations]
[Pages 66283-66285]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-18108]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 211, 212, 223, 226, and 252
[Docket DARS-2024-0026]
RIN 0750-AM21
Defense Federal Acquisition Regulation Supplement: Sustainable
Procurement (DFARS Case 2024-D024)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD is issuing a final rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to align the DFARS with
changes made to the Federal Acquisition Regulation.
DATES: Effective August 15, 2024.
FOR FURTHER INFORMATION CONTACT: David Johnson, telephone 202-913-5764.
SUPPLEMENTARY INFORMATION:
I. Background
This final rule revises the DFARS to align it with changes made to
the Federal Acquisition Regulation (FAR). FAR Case 2022-006, published
in the Federal Register on April 22, 2024, at 89 FR 30210, reorganized
and updated FAR part 23. Changes included consolidation of content into
particular subparts within part 23 and renaming part 23 along with some
of its subparts. FAR Case 2022-006 also moved nonenvironmental matters,
to include requirements for a drug-free workplace, from FAR part 23 to
part 26.
To align the DFARS with the FAR, this final rule implements
corresponding changes to the DFARS. This rule changes the title of
DFARS part 223 to ``Environment, Sustainable Acquisition, and Material
Safety'' and the title of subpart 223.3 to ``Hazardous Material
Identification, Material Safety Data, and Notice of Radioactive
Materials.'' This rule adds subpart 223.1, Sustainable Products and
Services, and moves the content from subparts 223.4 and 223.8 to the
newly added subpart 223.1. It moves the content of subpart 223.5, Drug-
Free Workplace, to newly added subpart 226.5, Drug-Free Workplace.
Consequently, this rule also relocates the contract clause at DFARS
252.223-7004, Drug-Free Work Force, to DFARS 252.226-7003, Drug-Free
Work Force.
As a result of this reorganization, and to correspond to changes in
the FAR, this rule renumbers or revises the headings of certain DFARS
paragraphs. In addition, editorial changes are made in 252.226-7003,
paragraph (a), to conform with drafting conventions for definitions.
None of the changes in this rule affect the DFARS substantively.
This rule does not alter policy or requirements stated in the DFARS.
II. Publication of This Final Rule for Public Comment Is Not Required
by Statute
The statute that applies to the publication of the FAR is 41 U.S.C.
1707, Publication of Proposed Regulations. Subsection (a)(1) of the
statute requires that a procurement policy, regulation, procedure, or
form (including an amendment or modification thereof) must be published
for public comment if it relates to the expenditure of appropriated
funds, and has either a significant effect beyond the internal
operating procedures of the agency issuing the policy, regulation,
procedure, or form, or has a significant cost or administrative impact
on contractors or offerors. This final rule is not required to be
published for public comment because it only renames an existing DFARS
part and existing subparts, and relocates DFARS subparts and
paragraphs, to align the DFARS with changes made in the FAR. None of
these changes to the DFARS are substantive.
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
This final rule does not create any new solicitation provisions or
contract clauses. It merely relocates an existing clause from DFARS
252.223-7004, Drug-Free Work Force, to DFARS 252.226-7003, Drug-Free
Work Force, without substantive change. The rule does not impact the
applicability of any existing solicitation provisions or contract
clauses to contracts valued at or below the simplified acquisition
threshold, for commercial products including COTS items, or for
commercial services.
IV. 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.
V. 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.
VI. Regulatory Flexibility Act
The Regulatory Flexibility Act does not apply to this rule because
this final rule does not constitute a significant DFARS revision within
the meaning of FAR 1.501-1, and 41 U.S.C. 1707 does not require
publication for public comment.
[[Page 66284]]
VII. 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 211, 212, 223, 226, and 252
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.
Therefore, the Defense Acquisition Regulations System amends 48 CFR
parts 211, 212, 223, 226, and 252 as follows:
0
1. The authority citation for 48 CFR parts 211, 212, 223, 226, and 252
continues to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 211--DESCRIBING AGENCY NEEDS
211.271 [Amended]
0
2. Amend section 211.271 by removing ``subpart 223.8'' and adding
``223.107-4'' in its place.
PART 212--ACQUISITION OF COMMERCIAL PRODUCTS AND COMMERCIAL
SERVICES
0
3. Amend section 212.301 by revising the heading of paragraph (f)(ix)
introductory text 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, Sustainable Acquisition, and Material
Safety. * * *
* * * * *
PART 223--ENVIRONMENT, SUSTAINABLE ACQUISITION, AND MATERIAL SAFETY
0
4. Revise the heading for part 223 to read as set forth above.
0
5. Add subpart 223.1 to read as follows:
Subpart 223.1--Sustainable Products and Services
Sec.
223.107-1 Products containing recovered materials.
223.107-4 Products that contain, use, or are manufactured with
ozone-depleting substances or products that contain or use high
global warming potential hydrofluorocarbons.
Subpart 223.1--Sustainable Products and Services
223.107-1 Products containing recovered materials.
(e) Procedures. Follow the procedures at PGI 223.107-1(e).
223.107-4 Products that contain, use, or are manufactured with ozone-
depleting substances or products that contain or use high global
warming potential hydrofluorocarbons.
No DoD contract may include a specification or standard that
requires the use of a class I ozone-depleting substance or that can be
met only through the use of such a substance unless the inclusion of
the specification or standard is specifically authorized at a level no
lower than a general or flag officer or a member of the Senior
Executive Service of the requiring activity in accordance with section
326, Public Law 102-484 (10 U.S.C. 3201 note prec.). This restriction
is in addition to any imposed by the Clean Air Act and applies after
June 1, 1993, to all DoD contracts, regardless of place of performance.
0
6. Revise the heading for subpart 223.3 to read as follows:
Subpart 223.3--Hazardous Material Identification, Material Safety
Data, and Notice of Radioactive Materials
0
7. Amend section 223.302 by revising the section heading to read as
follows:
223.302 Hazardous material identification and notice of material
safety data.
* * * * *
223.303 [Redesignated as 223.304]
0
8. Redesignate section 223.303 as section 223.304.
223.304 [Amended]
0
9. Amend newly redesignated section 223.304 by revising the section
heading to read as follows:
223.304 Contract clauses.
* * * * *
Subpart 223.4 [Removed and Reserved]
0
10. Remove and reserve subpart 223.4, consisting of section 223.405.
Subpart 223.5 [Removed and Reserved]
0
11. Remove and reserve subpart 223.5, consisting of sections 223.570,
223.570-1, and 223.570-2.
Subpart 223.8 [223 Removed]
0
12. Remove subpart 223.8, consisting of section 223.802.
PART 226--OTHER SOCIOECONOMIC PROGRAMS
0
13. Add subpart 226.5 to read as follows:
Subpart 226.5--Drug-Free Workplace
Sec.
226.570 Drug-free work force.
226.570-1 Policy.
226.570-2 Contract clause.
Subpart 226.5--Drug-Free Workplace
226.570 Drug-free work force.
226.570-1 Policy.
DoD policy is to ensure that its contractors maintain a program for
achieving a drug-free work force.
226.570-2 Contract clause.
(a) Use the clause at 252.226-7003, Drug-Free Work Force, in all
solicitations and contracts--
(1) That involve access to classified information; or
(2) When the contracting officer determines that the clause is
necessary for reasons of national security or for the purpose of
protecting the health or safety of those using or affected by the
product of, or performance of, the contract.
(b) Do not use the clause in solicitations and contracts--
(1) For commercial products and commercial services;
(2) When performance or partial performance will be outside the
United States and its outlying areas, unless the contracting officer
determines such inclusion to be in the best interest of the Government;
or
(3) When the value of the acquisition is at or below the simplified
acquisition threshold.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
252.223-7001 [Amended]
0
14. Amend section 252.223-7001 in the introductory text by removing
``223.303'' and adding ``223.304'' in its place.
252.223-7004 [Removed and Reserved]
0
15. Remove and reserve section 252.223-7004.
0
16. Add section 252.226-7003 to read as follows:
252.226-7003 Drug-Free Work Force.
As prescribed in 226.570-2, use the following clause:
Drug-Free Work Force (Aug 2024)
(a) Definitions. As used in this clause--
[[Page 66285]]
Employee in a sensitive position means an employee who has been
granted access to classified information; or employees in other
positions that the Contractor determines involve national security,
health or safety, or functions other than the foregoing requiring a
high degree of trust and confidence.
Illegal drugs means controlled substances included in Schedules I
and II, as defined by section 802(6) of title 21 of the United States
Code, the possession of which is unlawful under chapter 13 of that
title. The term ``illegal drugs'' does not mean the use of a controlled
substance pursuant to a valid prescription or other uses authorized by
law.
(b) The Contractor agrees to institute and maintain a program for
achieving the objective of a drug-free work force. While this clause
defines criteria for such a program, contractors are encouraged to
implement alternative approaches comparable to the criteria in
paragraph (c) that are designed to achieve the objectives of this
clause.
(c) Contractor programs shall include the following, or appropriate
alternatives:
(1) Employee assistance programs emphasizing high level direction,
education, counseling, rehabilitation, and coordination with available
community resources;
(2) Supervisory training to assist in identifying and addressing
illegal drug use by Contractor employees;
(3) Provision for self-referrals as well as supervisory referrals
to treatment with maximum respect for individual confidentiality
consistent with safety and security issues;
(4) Provision for identifying illegal drug users, including testing
on a controlled and carefully monitored basis. Employee drug testing
programs shall be established taking account of the following:
(i) The Contractor shall establish a program that provides for
testing for the use of illegal drugs by employees in sensitive
positions. The extent of and criteria for such testing shall be
determined by the Contractor based on considerations that include the
nature of the work being performed under the contract, the employee's
duties, the efficient use of Contractor resources, and the risks to
health, safety, or national security that could result from the failure
of an employee adequately to discharge his or her position.
(ii) In addition, the Contractor may establish a program for
employee drug testing--
(A) When there is a reasonable suspicion that an employee uses
illegal drugs; or
(B) When an employee has been involved in an accident or unsafe
practice;
(C) As part of or as a follow-up to counseling or rehabilitation
for illegal drug use;
(D) As part of a voluntary employee drug testing program.
(iii) The Contractor may establish a program to test applicants for
employment for illegal drug use.
(iv) For the purpose of administering this clause, testing for
illegal drugs may be limited to those substances for which testing is
prescribed by section 2.1 of subpart B of the ``Mandatory Guidelines
for Federal Workplace Drug Testing Programs'' (53 FR 11980 (April 11
1988)), issued by the Department of Health and Human Services.
(d) Contractors shall adopt appropriate personnel procedures to
deal with employees who are found to be using drugs illegally.
Contractors shall not allow any employee to remain on duty or perform
in a sensitive position who is found to use illegal drugs until such
times as the Contractor, in accordance with procedures established by
the Contractor, determines that the employee may perform in such a
position.
(e) The provisions of this clause pertaining to drug testing
program shall not apply to the extent they are inconsistent with state
or local law, or with an existing collective bargaining agreement;
provided that with respect to the latter, the Contractor agrees that
those issues that are in conflict will be a subject of negotiation at
the next collective bargaining session.
(End of clause)
[FR Doc. 2024-18108 Filed 8-14-24; 8:45 am]
BILLING CODE 6001-FR-P
</pre></body>
</html>Indexed from Federal Register on August 15, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.