Defense Federal Acquisition Regulation Supplement; Hazardous

[ross.vincent@sfsierra.sierraclub.org]

Subject: Defense Federal Acquisition Regulation Supplement; Hazardous

[Federal Register: March 10, 1995]

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DEPARTMENT OF DEFENSE
48 CFR Parts 223 and 252

Defense Federal Acquisition Regulation Supplement; Hazardous 
Materials

AGENCY: Department of Defense (DoD).

ACTION: Interim rule with request for comments.

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SUMMARY: The Director of Defense Procurement has issued an interim rule 
amending the Defense Federal Acquisition Regulation Supplement (DFARS) 
to add an exception to the statutory prohibition on storage and 
disposal of non-DoD-owned toxic and hazardous materials at military 
installations.

DATES: Effective Date: March 6, 1995.
 Comment date: Comments on the interim rule should be submitted in 
writing to the address shown below on or before May 9, 1995, to be 
considered in the formulation of the final rule.

ADDRESSES: Interested parties should submit written comments to: 
Defense Acquisition Regulations Council, Attn: LTC Edward C. King Jr., 
PDUSD(A&T)DP(DAR), IMD 3D139, 3062 Defense Pentagon, Washington, D.C. 
20301-3062. Telefax number (703) 602-0350. Please cite DFARS Case 94-
D309 in all correspondence related to this issue.

FOR FURTHER INFORMATION CONTACT:
LTC Edward C. King Jr, (703) 602-0131.

SUPPLEMENTARY INFORMATION: 

A. Background

 Section 325 of the Fiscal Year 1995 Defense Authorization Act (Pub. 
L. 103-337) amends 10 U.S.C. 2692 to add an exception to the 
prohibition on storage and disposal of non-DoD-owned toxic and 
hazardous materials at military installations. DFARS Subpart 223.71 and 
the clause at 252.223-7006 are amended to add the exception in all 
solicitations and contracts which require, may require, or permit 
contractor performance on a DoD installation.

B. Regulatory Flexibility Act

 The interim rule is not expected 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 of the 
limited applicability of the rule to industrial-type facilities located 
on military installations. An initial regulatory flexibility analysis 
has therefore not been performed. Comments from small entities 
concerning the affected subpart and clause will be considered in 
accordance with Section 610 of the Act. Such comments must be submitted 
separately and cite DFARS Case 94-D309 in correspondence.

C. Paperwork Reduction Act

 The Paperwork Reduction Act does not apply because the rule does 
not impose any information collection requirements which require the 
approval of the Office of Management and Budget under 44 U.S.C. 3501, 
et seq.

D. Determination to Issue an Interim Rule

 A determination has been made under the authority of the Secretary 
of Defense to issue this rule as an interim rule. Compelling reasons 
exist to promulgate this rule as an interim rule without prior 
opportunity for public comments because it is necessary to add the 
exception authorized by Section 325 of Pub. L. 103-337. However, 
comments received in response to this interim rule will be considered 
in formulating the final rule. [[Page 13076]] 

List of Subjects in 48 CFR Part 223 and 252

 Government Procurement.
Claudia L. Naugle,
Deputy Director, Defense Acquisition Regulations Council.

 Therefore, 48 CFR Parts 223 and 252 are amended as follows:
 1. The authority citation for 48 CFR Parts 223 and 252 continues to 
read as follows:

 Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.

PART 223--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-
FREE WORKPLACE

 2. Section 223.7102 is amended by adding paragraph (a)(9) to read 
as follows:

Sec. 223.7102 Exceptions.

 (a) * * *
 (9) The treatment and disposal of any non-DoD-owned material if the 
Secretary of the military department concerned--
 (i) Determines that the material is required or generated by a 
private person in connection with the authorized and compatible 
commercial use by that person of an industrial-type facility of that 
military department; and
 (ii) Enters a contract with that person that--
 (A) Is consistent with the best interest of national defense and 
environmental security; and
 (B) Provides for that person's continued financial and 
environmental responsibility and liability with regard to the material.
* * * * *
 3. Section 223.7103 is revised to read as follows:

223.7103 Contract clause.

 (a) Use the clause at 252.223-7006, Prohibition on Storage and 
Disposal of Toxic and Hazardous Materials, in all solicitations and 
contracts which require, may require, or permit contractor performance 
on a DoD installation.
 (b) Use the clause at 252.223-7006 with its Alternate I, when the 
Secretary of the military department issues a determination under the 
exception at 223.7102(a)(9).
 3. Section 252.223-7006 is amended by revising the introductory 
text and by adding an Alternate I to read as follows:

252.223-7006 Prohibition on storage and disposal of toxic and 
hazardous materials.

 As prescribed in 223.7103(a), use the following clause:
* * * * *

Alternate I (Mar 1995)

 As prescribed in 223.7103(b), add the following paragraphs (c) 
and (d) to the basic clause:
 (c) With respect to treatment or disposal authorized pursuant to 
10 U.S.C. 2692(b)(9), 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 non-DoD-owned toxic or hazardous material 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 non-DoD-owned toxic 
or hazardous materials on a military installation.
 (d) The Contractor shall include this clause, including this 
subparagraph (d) in each subcontract.

[FR Doc. 95-5957 Filed 3-9-95; 8:45 am]
BILLING CODE 5000-04-M