F.  Exceptions

Comment: Four respondents requested clarification of the process for approval of exemptions.

DoD Response: Exemption is not a term used in the rule. The respondent evidently means the process for obtaining authorizations to provide a deliverable or construction material with hexavalent chromium as described at DFARS 223.7305. Military departments have established or are establishing internal procedures for processing authorizations for use of hexavalent chromium. These procedures are necessitated by the individual needs of the Service and/or each program office. The approval process will be provided as part of the solicitation. It is in the best interest of DoD and individual program managers to have speedy, efficient processes for handling hexavalent chromium authorizations.

Comment: One respondent noted that it would be difficult to achieve the specification requirement under MIL-DTL-38999 for circular connectors if hexavalent chromium is removed from the sealer used in manufacturing circular connectors, noting that current test data suggests that replacing hexavalent chromium with trivalent chromium is not effective for circular connectors with cadmium-free plating.

DoD Response: Given the wide range of applications and the longstanding use of hexavalent chromium, DoD recognizes that the transition to proven substitutes will take time and recognizes that it will need to make exceptions to this rule while adequate alternatives continue to be developed. This amendment to the DFARS is one component of DoD's overall strategy to minimizing the use of materials containing hexavalent chromium in Defense acquisitions. As stated in the DoD policy memo, to adequately address the environmental and health concerns associated with the use of materials containing hexavalent chromium, DoD is going beyond its established hazardous materials management processes. In fact, this change to the DFARS specifically acknowledges that there may be particular specifications, such as MIL-DTL-38999, that require case-by-case authorizations for materials that contain hexavalent chromium. Section 223.7305 allows the appropriate DoD official to authorize the use of materials that contain hexavalent chromium when necessary, and if consistent with DoD policy. Any one that seeks such an authorization should follow the procedures in the DFARS Procedures, Guidance, and Information (PGI) at 223.7305.

Furthermore, DoD appreciates the information regarding the performance of circular connectors using trivalent chromium. DoD continues to make major investments to minimize the use of hexavalent chromium in defense acquisitions. DoD has sponsored efforts that range from fundamental research through advanced development to testing and evaluation for proven substitutes. As discussed earlier, the Strategic Environmental Research and Development Program (SERDP) and the Environmental Security Technology Certification Program (ESTCP) sponsor the Advanced Surface Engineering Technologies for a Sustainable Defense (ASETSDefense), which is a database that facilitates the implementation of new, environmentally friendly technologies for surface engineering (coatings and surface treatments) by providing ready access to background information and technical data from research, development, test, and evaluation efforts as well as the status of approvals and implementations. This database is continually growing as more documents are added, concentrating on coatings that avoid the use of hexavalent chromium. DoD will continue these efforts to provide proven substitutes for an ever increasing range of applications and materials to foster the widespread implementation of alternatives to hexavalent chromium. ASETSDefense's relational database is designed with a search capability to provide access to the available information needed to make informed decisions on the use of alternatives to materials and technologies for surface engineering that pose environmental or health hazards. This information includes detailed engineering data, background documents, and information on processes and products that have been validated, authorized, or implemented. For more information and to access the database go to: http://www.assetsdefense.org/databasedescription.aspx.

Comment: One respondent requested an exception for all commercial items.

DoD Response: To provide an exception for all commercial items will jeopardize the intent of the rule and be contrary to DoD policy. It is the responsibility of the prime contractor to require suppliers to provide content information. There is currently a requirement to provide content information for articles that contain hazardous substances such as hexavalent chromium in Material Safety Data Sheets (see FAR 52.223-3, Hazardous Material Identification and Material Safety Data).

Comment: One respondent stated that paragraph (d) of the clause requires that the prohibition will always flow down to the subcontractor and does not provide for a situation where the subcontractor's items qualify for an exemption.

DoD Response: Similar to change order requests and other types of approvals, subcontractors may submit proposals for approvals of necessary hexavalent chromium use through the prime contractor for approval. Since the clause flows down, the same approval process for exemptions applies to the subcontractor as well.

Comment: One respondent asked if the liability language exempts legacy systems/or components.

DoD Response: The paragraph on liability was deleted from the final text of the clause because existing law is sufficient.

Comment: One respondent stated that data such as cost effectiveness and corrosion protection be considered in rendering exemptions.

DoD Response: The respondent is correct. The DoD policy of April 8, 2009, contains requirements for weighing hexavalent chromium versus substitutes. The following factors, at a minimum, must be considered--

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.

Section 223.7305 has been revised to include the above factors from the DoD policy memo.

Comment: One respondent inquired if another exception is required if an exception has been allowed under the original contract. Another respondent asked about exemptions for follow-on procurements, or maintenance procedures.

DoD Response: The rule has an exception for legacy systems, which are now defined. An exception has been added for sustainment related contracts (e.g., parts, services) for existing systems with hexavalent chromium approved.