Defense Federal Acquisition Regulation Supplement: Sustainable Procurement (DFARS Case 2024-D024)

<RULE> DEPARTMENT OF DEFENSE <SUBAGY>Defense Acquisition Regulations System</SUBAGY> <CFR>48 CFR Parts 211, 212, 223, 226, and 252</CFR> <DEPDOC>[Docket DARS-2024-0026]</DEPDOC> <RIN>RIN 0750-AM21</RIN> <SUBJECT>Defense Federal Acquisition Regulation Supplement: Sustainable Procurement (DFARS Case 2024-D024)</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Defense Acquisition Regulations System, Department of Defense (DoD). <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to align the DFARS with changes made to the Federal Acquisition Regulation. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Effective August 15, 2024. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> David Johnson, telephone 202-913-5764. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background</HD> This final rule revises the DFARS to align it with changes made to the Federal Acquisition Regulation (FAR). FAR Case 2022-006, published in the <E T="04">Federal Register</E> on April 22, 2024, at 89 FR 30210, reorganized and updated FAR part 23. Changes included consolidation of content into particular subparts within part 23 and renaming part 23 along with some of its subparts. FAR Case 2022-006 also moved nonenvironmental matters, to include requirements for a drug-free workplace, from FAR part 23 to part 26. To align the DFARS with the FAR, this final rule implements corresponding changes to the DFARS. This rule changes the title of DFARS part 223 to “Environment, Sustainable Acquisition, and Material Safety” and the title of subpart 223.3 to “Hazardous Material Identification, Material Safety Data, and Notice of Radioactive Materials.” This rule adds subpart 223.1, Sustainable Products and Services, and moves the content from subparts 223.4 and 223.8 to the newly added subpart 223.1. It moves the content of subpart 223.5, Drug-Free Workplace, to newly added subpart 226.5, Drug-Free Workplace. Consequently, this rule also relocates the contract clause at DFARS 252.223-7004, Drug-Free Work Force, to DFARS 252.226-7003, Drug-Free Work Force. As a result of this reorganization, and to correspond to changes in the FAR, this rule renumbers or revises the headings of certain DFARS paragraphs. In addition, editorial changes are made in 252.226-7003, paragraph (a), to conform with drafting conventions for definitions. None of the changes in this rule affect the DFARS substantively. This rule does not alter policy or requirements stated in the DFARS. <HD SOURCE="HD1">II. Publication of This Final Rule for Public Comment Is Not Required by Statute</HD> The statute that applies to the publication of the FAR is 41 U.S.C. 1707, Publication of Proposed Regulations. Subsection (a)(1) of the statute requires that a procurement policy, regulation, procedure, or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment because it only renames an existing DFARS part and existing subparts, and relocates DFARS subparts and paragraphs, to align the DFARS with changes made in the FAR. None of these changes to the DFARS are substantive. <HD SOURCE="HD1">III. Applicability to Contracts at or Below the Simplified Acquisition Threshold (SAT), for Commercial Products (Including Commercially Available Off-the-Shelf (COTS) Items), and for Commercial Services</HD> This final rule does not create any new solicitation provisions or contract clauses. It merely relocates an existing clause from DFARS 252.223-7004, Drug-Free Work Force, to DFARS 252.226-7003, Drug-Free Work Force, without substantive change. The rule does not impact the applicability of any existing solicitation provisions or contract clauses to contracts valued at or below the simplified acquisition threshold, for commercial products including COTS items, or for commercial services. <HD SOURCE="HD1">IV. Executive Orders 12866 and 13563</HD> Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, as amended. <HD SOURCE="HD1">V. Congressional Review Act</HD> As required by the Congressional Review Act (5 U.S.C. 801-808) before an interim or final rule takes effect, DoD will submit a copy of the interim or final rule with the form, Submission of Federal Rules under the Congressional Review Act, to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States. A major rule under the Congressional Review Act cannot take effect until 60 days after it is published in the <E T="04">Federal Register</E> . The Office of Information and Regulatory Affairs has determined that this rule is not a major rule as defined by 5 U.S.C. 804. <HD SOURCE="HD1">VI. Regulatory Flexibility Act</HD> The Regulatory Flexibility Act does not apply to this rule because this final rule does not constitute a significant DFARS revision within the meaning of FAR 1.501-1, and 41 U.S.C. 1707 does not require publication for public comment. <HD SOURCE="HD1">VII. Paperwork Reduction Act</HD> This final rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35). <LSTSUB> <HD SOURCE="HED">List of Subjects in 48 CFR Parts 211, 212, 223, 226, and 252</HD> Government procurement. </LSTSUB> <SIG> <NAME>Jennifer D. Johnson,</NAME> Editor/Publisher, Defense Acquisition Regulations System. </SIG> Therefore, the Defense Acquisition Regulations System amends 48 CFR parts 211, 212, 223, 226, and 252 as follows: <REGTEXT TITLE="48" PART="211"> 1. The authority citation for 48 CFR parts 211, 212, 223, 226, and 252 continues to read as follows: <HD SOURCE="HED">Authority:</HD> 41 U.S.C. 1303 and 48 CFR chapter 1. </REGTEXT> <HD SOURCE="HED">PART 211—DESCRIBING AGENCY NEEDS</HD> <SECTION> <SECTNO>211.271</SECTNO> <SUBJECT>[Amended]</SUBJECT> </SECTION> <REGTEXT TITLE="48" PART="211"> 2. Amend section 211.271 by removing “subpart 223.8” and adding “223.107-4” in its place. </REGTEXT> <HD SOURCE="HED">PART 212—ACQUISITION OF COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES</HD> <REGTEXT TITLE="48" PART="212"> 3. Amend section 212.301 by revising the heading of paragraph (f)(ix) introductory text to read as follows: <SECTION> <SECTNO>212.301</SECTNO> <SUBJECT>Solicitation provisions and contract clauses for the acquisition of commercial products and commercial services.</SUBJECT> <STARS/> (f) * * * (ix) <E T="03">Part 223—Environment, Sustainable Acquisition, and Material Safety.</E> * * * <STARS/> </SECTION> </REGTEXT> <HD SOURCE="HED">PART 223—ENVIRONMENT, SUSTAINABLE ACQUISITION, AND MATERIAL SAFETY</HD> <REGTEXT TITLE="48" PART="223"> 4. Revise the heading for part 223 to read as set forth above. </REGTEXT> <REGTEXT TITLE="48" PART="223"> 5. Add subpart 223.1 to read as follows: <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart 223.1—Sustainable Products and Services</HD> <SECHD>Sec.</SECHD> <SECTNO>223.107-1</SECTNO> <SUBJECT>Products containing recovered materials.</SUBJECT> <SECTNO>223.107-4</SECTNO> <SUBJECT>Products that contain, use, or are manufactured with ozone-depleting substances or products that contain or use high global warming potential hydrofluorocarbons.</SUBJECT> </SUBPART> </CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart 223.1—Sustainable Products and Services</HD> <SECTION> <SECTNO>223.107-1</SECTNO> <SUBJECT>Products containing recovered materials.</SUBJECT> (e) <E T="03">Procedures.</E> Follow the procedures at PGI 223.107-1(e). </SECTION> <SECTION> <SECTNO>223.107-4</SECTNO> <SUBJECT>Products that contain, use, or are manufactured with ozone-depleting substances or products that contain or use high global warming potential hydrofluorocarbons.</SUBJECT> No DoD contract may include a specification or standard that requires the use of a class I ozone-depleting substance or that can be met only through the use of such a substance unless the inclusion of the specification or standard is specifically authorized at a level no lower than a general or flag officer or a member of the Senior Executive Service of the requiring activity in accordance with section 326, Public Law 102-484 (10 U.S.C. 3201 note prec.). This restriction is in addition to any imposed by the Clean Air Act and applies after June 1, 1993, to all DoD contracts, regardless of place of performance. </SECTION> </SUBPART> </REGTEXT> <REGTEXT TITLE="48" PART="223"> 6. Revise the heading for subpart 223.3 to read as follows: <SUBPART> <HD SOURCE="HED">Subpart 223.3—Hazardous Material Identification, Material Safety Data, and Notice of Radioactive Materials</HD> </SUBPART> 7. Amend section 223.302 by revising the section heading to read as follows: <SECTION> <SECTNO>223.302</SECTNO> <SUBJECT>Hazardous material identi ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 18k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━