C.  Need for the Rule and Adequacy of Current Regulations

Comment: Three respondents questioned the need for the rule. One respondent stated that existing environmental, safety, and health regulations provide adequate safeguards. Another stated that it considered the rule to be premature without additional study, testing, and proof of performance and since it is limited to one federal department, it should be withdrawn. Another respondent suggested that DoD should consider a phased-in approach.

DoD Response: The rule will help to facilitate DoD's compliance with the requirements established in Executive Orders 13514 and 13423 to reduce the use of toxic and hazardous substances. In addition, it allows for the codification of the policy outlined in the DoD policy memo for the acquisition community to effectively implement the guidance in contract requirements. This rule is intended for DoD program managers and contracting officers by prohibiting the use of a DoD specification or solicitation that will result in a deliverable containing hexavalent chromium unless authorized by a senior level DoD official. This addresses a key complaint from industry that DoD specifications are preventing them from eliminating hexavalent chromium despite their desire to do so.

The rule also provides incentive for industry to adopt substitutes for hexavalent chromium. The rule has been modified to provide that a "legacy system" means a program that has passed Milestone A in the defense acquisition management system, as defined in DoD Instruction 5000.02, prior to the effective date of the rule. This is an early entry point into the defense acquisition system and, as noted in section II.A. of this preamble, provides a phasing in of the mandatory requirements of the rule for new acquisitions still only in the development phases. In regard to the need for further testing, DoD and industry have spent years testing substitutes and will continue to do so. The DoD policy does not require use of substitutes unless they can meet a DoD Manufacturing Readiness Level (MRL) of at least eight. Essentially, this means that the substitute has been proven to meet performance requirements. An item at MRL eight must have detailed designs and/or specifications, proven manufacturing and quality processes, and an established and stable supply chain.