A.  Clarification of Definitions, Terms, or Language

Comment: Two respondents requested clarification of contractor responsibility for identifying alternatives or obtaining approvals for hexavalent chromium use.

DoD Response: A DoD solicitation for a new deliverable may contain specifications for approved hexavalent chromium substitutes. In other solicitations, or for other components in the same solicitation, DoD may provide specifications that require hexavalent chromium where its use is deemed necessary to meet performance requirements and/or where proven substitutes are not available. Consideration of substitutes will include evaluation of the factors described in the DoD policy memo including--

Cost effectiveness of alternative materials or processes;

Technical feasibility of alternative materials or processes;

Environment, safety, and occupational health risks associated with the use of the hexavalent chromium or substitute materials in each specific application;

Achieving a DoD Manufacturing Readiness Level of at least eight (8) for any qualified alternative;

Materiel availability of hexavalent chromium and the proposed alternatives over the projected life span of the system; and

Corrosion performance difference of alternative materials or processes as determined by agency corrosion subject matter experts.

A performance-based solicitation may not provide specifications for a substitute or pre-approval for hexavalent chromium. In such cases, the contractor is responsible for either providing a substitute that meets performance requirements or providing a request to the contracting officer for providing a deliverable containing hexavalent chromium. The contracting officer will forward the request to the authorized approving official (DFARS 223.7305(a)) for decision.

The Advanced Surface Engineering Technologies for a Sustainable Defense (ASETSDefense) Web site at http://www.assetsdefense.org has been established to provide information about hexavalent chromium substitutes. The site has a database that can be searched by type of process for substitute information. The site also contains briefings and summary reports from DoD-industry workshops on sustainable coatings and processes. The site helps reduce duplication in testing for the same or similar applications.

Comment: Two respondents requested that "legacy system" be defined, with one respondent stating that it should be any system that is past Material Development Decision, as the milestone defined in DoD Instruction 5000.02.

DoD Response: A "legacy system" means any program that has passed Milestone A, as defined in DoD Instruction 5000.02. At the Material Development Decision (MDD) stage in the acquisition process, far too little is known about a system. The MDD simply indicates that an acquisition of a system, equipment, or item will be required to satisfy a military capability. Milestone A occurs after the MDD. At Milestone A, the system concept has been refined and technology development can begin. Milestone A represents a very early stage in the acquisition process. Thus, by defining a legacy system as one that has already passed Milestone A, it provides a phase-in period for the rule to take effect. In other words, the rule affects only new systems that are pre-Milestone A. This provides a sufficient period, typically two years or more, for companies that contract with DoD to make any necessary adjustments.

Comment: Two respondents requested clarification of the term "homogeneous material." One respondent stated that the definition proposed is overly broad and appears to be taken verbatim from the European Union Restriction of Hazardous Substances Directive. Another respondent suggested that the definition be abandoned as unusable or be clarified by naming common types of materials to be considered homogeneous and those which should be excluded from the definition.

DoD Response: The definition of "homogeneous material" was adopted from the European Union Restriction of Hazardous Substances Directive because it is widely understood by industry given the global nature of supply chains. The definition was supplemented by providing examples to assist the contracting activity and the offeror. The intent of the examples is not to be extensive or all inclusive. "Homogeneous material" means a material that cannot be mechanically disjointed into different materials and is of uniform composition throughout. This definition can be applied to any material or article in order to determine the percent by weight of hexavalent chromium in the material. Surface coatings are considered to be a separate homogeneous material from the underlying material such as aluminum. The painted aluminum article as a whole is not a homogenous material because the paint can be mechanically disjointed (sanded or grinded) from the underlying aluminum. Also, the paint and aluminum are each of separate, uniform compositions. Conversion coatings are not considered homogeneous materials because they bond with and chemically modify the underlying material and cannot be mechanically disjointed.

Comment: Two respondents requested that the prohibition of hexavalent chromium not apply to "use" but only to products that "contain" hexavalent chromium. Two respondents requested that the phrase "or use materials [that contain hexavalent chromium] in performance of this contract" in 252.223-7XXXX (b) be deleted, so that the restriction would only apply to deliverables that contain hexavalent chromium.

DoD Response: DFARS 223.7303 was revised to provide clarity that hexavalent chromium may be used in manufacturing or testing of an article, as long as it will not appear as hexavalent chromium in the final product. As an example, in chrome plating, only the metallic form of chromium remains. Thus, articles plated with the metal chromium are acceptable and the rule will have minimum affect on businesses that plate chromium. Based on an industry comment, DoD modified the rule to indicate that the "prohibition does not apply to hexavalent chromium produced as a by-product of manufacturing processes" such as hard chrome plating. This was a primary concern of one of the industry associations. The phrase "or use materials in performance of this contract" in paragraph (b) of the clause at 252.223-7XXX has been deleted.

Comment: Two respondents requested clarification of the definitions of "unapproved" and "damages" in paragraph (c) of the clause 252.223-7XXX.

DoD Response: Paragraph (c) of the clause 252.223-7XXX was deleted in its entirety (see section II.I. of this preamble addressing contractor liability).

Comment: One respondent expressed an opinion that the title of proposed DFARS Subpart 223.73 is at variance with other parts of the rule. Specifically: "The proposed subpart 223.73 is entitled 'Minimizing the use of hexavalent chromium', but paragraphs 223.7302, 223-7303, and the proposed clause 252.223-7XXX use the term 'prohibition.' "

DoD Response: Review of the rule as a whole does not support a finding of a conflict and edits have been made to clarify this. While proposed DFARS 223.7302 and the proposed clause at DFARS 252.223-7XXX use the term "prohibition," the prohibition exists only where proven substitutes are available that provide acceptable performance for the application. Consideration of cost effectiveness, technical feasibility, corrosion control performance, and other factors described in the DoD policy memo must be taken into account. Read in its entirety, proposed DFARS Subpart 223.73 and the clause at proposed DFARS 252.223-7XXX do not impose an absolute ban on the use of hexavalent chromium. Rather, DFARS Subpart 223.73 minimizes the incorporation of hexavalent chromium into deliverables to the extent practicable, considering all the factors described in the DoD policy memo.