Minimizing the Use of Materials Containing Hexavalent Chromium (DFARS Case 2009-D004)

Summary:

DCN 20110505 includes a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement the requirements for minimizing the use of materials containing hexavalent chromium in items acquired by DoD (deliverables and construction materials hereafter referred to as deliverables). Hexavalent chromium is a chemical that has been used in numerous DoD weapons systems and platforms due to its corrosion protection properties. However, hexavalent chromium is a known carcinogen.

This rule codifies a DoD policy for addressing the serious human health and environmental risks related to the use of hexavalent chromium. The rule prohibits the delivery of items containing more than 0.1 percent by weight hexavalent chromium in any homogeneous material under DoD contracts unless there is no acceptable alternative to the use of hexavalent chromium.

Supplementary Information:

I.  Background

DoD published a proposed rule on hexavalent chromium in the Federal Register at 75 FR 18041 on April 8, 2010. This final rule amends the DFARS to implement requirements to minimize the delivery of materials containing hexavalent chromium in DoD acquisitions. The DFARS governs only DoD procurements, therefore, this action establishes requirements that DoD personnel must follow when making acquisitions for new systems.

Hexavalent chromium is a chemical that has been used in numerous DoD weapons systems and platforms due to its corrosion protection properties. However, hexavalent chromium is recognized as an inhalation carcinogen. The National Toxicology Program's Report on Carcinogens, Eleventh Edition, lists hexavalent chromium compounds as known human carcinogens. (See http://ntp.niehs.nih.gov/ntp/roc/eleventh/known.pdf.) The Environmental Protection Agency (EPA) classifies hexavalent chromium as a known human carcinogen by the inhalation route of exposure. (See http://www.epa.gov/iris/subst/0144.htm.)

In response to the serious human health and environmental risks associated with the use of hexavalent chromium, there has been an increase in national and international restrictions and controls. For example, in 2006, the Occupational Safety and Health Administration (OSHA) lowered the permissible exposure limit (PEL) ten-fold from 52 to 5 micrograms-per-cubic-meter, making it among the most stringently regulated materials used in manufacturing and maintenance operations. Similarly, the European Union Restriction of Hazardous Substances Directive restricts the use of hexavalent chromium in the manufacturing of certain types of electronic and electrical equipment. Finally, a number of defense-related industries are minimizing or eliminating the use of hexavalent chromium where proven substitutes are available.

Such restrictions and industry practices have decreased the availability of materials containing hexavalent chromium and have increased the regulatory burden and life cycle costs for DoD. Indeed, DoD and the industry have made substantial investments in finding suitable replacements for hexavalent chromium. To protect future access for critical applications and to implement its commitments pursuant to Executive Orders 13514 and 13423, on April 8, 2009, the Under Secretary of Defense (Acquisition, Technology and Logistics) issued a policy memorandum to minimize the use of materials containing hexavalent chromium in the acquisition of new systems throughout DoD. Among other things, the policy memorandum directed DoD personnel (specifically the Program Executive Offices in conjunction with the Military Department's Corrosion Control and Prevention Executive) to certify that "no acceptable alternative" exists before using any material containing hexavalent chromium on a new system and directed the Defense Acquisition Regulation Council to develop a clause for defense contracts that prohibits the use of materials containing hexavalent chromium in all future procurements unless specifically approved by the Government.

This final rule implements those aspects of the policy memorandum. The final rule adds a new DFARS subpart and a corresponding contract clause to minimize hexavalent chromium in deliverables acquired under DoD contracts.

II. Analysis of Public Comments

Eleven respondents submitted comments on the proposed rule. A discussion of those comments and the revisions made to the rule as a result of those comments is provided here.

Dates:

The Effective Date for this final rule is 5 May 2011.

Click here to read the entire Federal Register notice for this rule.