[Federal Register Volume 75, Number 110 (Wednesday, June 9, 2010)]
[Rules and Regulations]
[Pages 32676-32681]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-13804]
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DEPARTMENT OF HOMELAND SECURITY
48 CFR Parts 3025 and 3052
[Docket No. DHS-2009-0081]
RIN 1601-AA57
Revision of Department of Homeland Security Acquisition
Regulation; Restrictions on Foreign Acquisition (HSAR Case 2009-004)
AGENCY: Office of the Chief Procurement Officer, DHS.
ACTION: Affirmation of interim rule as final rule.
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SUMMARY: The Department of Homeland Security is adopting the amendments
to its Homeland Security Acquisition Regulation that were issued under
an interim rule on August 17, 2009, as final, without change, to
implement a statute limiting the acquisition of products containing
textiles from sources outside the United States.
DATES: Effective Date: June 9, 2010.
FOR FURTHER INFORMATION CONTACT: Jeremy Olson, Department of Homeland
Security, Office of the Chief Procurement Officer, Acquisition Policy
and Legislation Branch, (202) 447-5197.
SUPPLEMENTARY INFORMATION:
I. Background
II. Disposition of Public Comments on the Interim Rule
III. Regulatory Requirements
A. Small Entity Analysis
B. Executive Order 12866 (Regulatory Planning and Review)
C. Assistance for Small Entities
D. Collection of Information
I. Background
The American Recovery and Reinvestment Act of 2009 (``Recovery
Act''), Public Law 111-5, 123 Stat. 115, 165-166 (Feb. 17, 2009),
contains restrictions on the Department of Homeland Security's (DHS)
acquisition of certain foreign textile products. Specifically, the
Recovery Act at section 604, codified as 6 U.S.C. 453b, limits the
Department's acquisition of foreign textile products under DHS contract
actions entered into on or after August 16, 2009, using funds
appropriated or otherwise made available to DHS on or before February
17, 2009, the date of the Act. Section 604 is sometimes referred to as
the ``Kissell Amendment.'' DHS may not use those funds for the
procurement of certain clothing and other textile items directly
related to the national security interests of the United States if such
items are not domestically grown, reprocessed, reused, or produced in
the United States.
Section 604 does, however, contain exceptions. The law requires DHS
to apply these restrictions in a manner consistent with United States
obligations under international agreements (such as free trade
agreements and the World Trade Organization Agreement on Government
Procurement). Moreover, restrictions on some of the covered textile
items do not apply to commercial item acquisitions. Also, the Recovery
Act's restriction on the Department's acquisition of covered foreign
textiles does not apply to: purchases for amounts not greater than the
simplified acquisition threshold (SAT) (currently $100,000); when
covered items of satisfactory quality and sufficient quantity cannot be
procured as needed at United States market prices; when a covered item
contains less than 10% non-compliant fibers; when the procurement is
made by vessels in foreign waters; or for emergency procurements
outside of the United States.
On August 17, 2009, DHS published an interim rule with request for
comments discussing the agency's implementation of the Kissell
Amendment and providing specific amendments to the Homeland Security
Acquisition Regulation (HSAR) at parts 3025 and 3052. 74 FR 41346, Aug.
17, 2009. This final rule adopts that interim rule as final without
change, revising the HSAR to add solicitation provisions, contract
clauses and related policy statements implementing these requirements
and exceptions for certain DHS contracts, option exercises and orders.
II. Disposition of Public Comments
In response to the request for comments on the interim rule, DHS
received comments from 26 commenters, consisting of trade associations,
individuals, companies and a Member of Congress. The majority of the
commenters expressed their favorable views of section 604 and suggested
that DHS consider several technical changes to improve that
implementation.
The changes to the interim rule that were most commonly recommended
by commenters fall into four categories:
Make the ``de minimis'' exception a post-award forbearance
decision; do not make the ``de minimis'' exception an advance
regulatory exemption in the HSAR;
Eliminate the HSAR definition of ``national security
interests''; cover all DHS acquisitions as being related to ``national
security interests'' of the United States;
[[Page 32677]]
Do not list Mexico, Canada or Chile in the HSAR; let
individual contracting officers determine for themselves which
countries have international agreements that impact individual
procurements;
Mirror the Department of Defense implementation of the
Berry Amendment.
These comments and others are described below along with discussion
of DHS's consideration and disposition of all comments to the interim
rule.
Comment on Post-award De Minimis Authority--Commenters suggested
that the interim rule's de minimis exception in section 604(d) should
be interpreted as post-procurement authority. These commenters observed
that the manner in which this section was developed suggests that the
Secretary has latitude to override section 604's fiber sourcing
requirement when non-compliant fibers have been incorporated in a
product in an otherwise compliant, completed procurement. Commenters
observed that Congress is silent on this issue and that such silence
provides the Secretary of Homeland Security the option to accept
delivery of an item produced with fiber out of compliance with the
Act's U.S. domestic procurement mandate, in instances where the non-
compliant fiber in question does not exceed 10% of the value of the
delivered product.
DHS response to the comment. Do not concur. The statute addresses
delivery of noncompliant items as follows: (d) De Minimis Exception--
Notwithstanding subsection (a), the Secretary of Homeland Security may
accept delivery of an item covered by subsection (b) that contains non-
compliant fibers if the total value of non-compliant fibers contained
in the end item does not exceed 10 percent of the total purchase price
of the end item. This subsection of section 604 provides authority to
the Department that can be implemented either pre-award (as addressed
in the interim rule) or post-award (as the commenters recommended). DHS
determined that it would be highly impractical to implement a post-
award exception for homeland security procurements. Items containing de
minimis amounts of non-compliant materials could be rejected after they
were delivered. A contractor would not know in advance if such an
exception would or would not be granted. Facing this risk, planning
flexibility available to DHS contractors would be substantially
reduced. DHS determined that the best way to communicate its intentions
under this authority was to grant the approval for all de minimis
content items in advance within the regulation. By following this path,
DHS gives its potential contractors the advantage of certainty and the
information necessary for them to make the most advantageous offer
possible to the government, without the risk that delivery might be
rejected for inclusion of de minimis amounts after the contractor's
proposal was accepted and the resulting contract was awarded. Further,
given the authority in subsection (d), and its characterization as a de
minimis exception, DHS finds it hard to envision a circumstance in
which a delivery containing de minimis amounts of non-compliant
materials could be rejected in a principled way. Accordingly, advance
approval of such deliveries is the best approach for compliance with
section 604, subsection (d), under the regulation.
Comment on National Security Interests--Commenters argued that DHS
has adopted an unnecessarily restrictive definition of items ``directly
related to national security interests'' for purposes of applying the
Kissell Amendment. The commenters further suggested that it appears
that the interim rule intends to unnecessarily exclude certain textile
products from operation of the Kissell Amendment. According to the
commenters, the Kissell Amendment was intended to be an extension of
the Berry Amendment to DHS. By creating a new definition for purposes
of applying this amendment, the commenters argued that DHS is
undermining the intent of Congress and creating unnecessary
complications in the procurement process. The current rules governing
the Berry Amendment apply to all goods at the Department of Defense
(DoD), except in certain limited instances. Within that spirit, the
commenters believe that the final rule should not deviate in any manner
from the original intent of Congress.
DHS response to the comment. Do not concur. Section 604 has certain
language in common with the Berry Amendment (10 U.S.C. 2533a), but its
language is by no means identical, nor even varied solely to import the
requirements of the Berry Amendment to a non-DoD agency. As such,
section 604 is not ``an extension'' of the Berry Amendment to DHS.
Section 604 is an independent statutory requirement. If the
requirements of section 604 were meant to apply to all DHS
acquisitions, the qualifying and limiting language of section 604 (i.e.
that the covered item be ``directly related to national security
interests'') would be unnecessary. Given that these limits in scope are
included in the plain language of section 604, DHS has no choice but to
honor them. DHS considered, but rejected, an interpretation under which
all DHS acquisitions of covered textile items would be considered to be
``directly related to the national security interests of the United
States'' because it would have rendered those words a nullity. DHS
cannot interpret the presence of these limiting words as having no
meaning or effect. Because section 604 did not define this expression,
DHS was obliged to define it reasonably, which is explained in the
preamble to the interim rule.
Comment on NAFTA and U.S.-Chile Free Trade Agreement--Commenters
observed that the interim rule specifically identifies items from Free
Trade Agreement (FTA) partners Mexico, Canada, and Chile as eligible
for procurement benefits, notwithstanding the basic provisions of the
Kissell Amendment. The commenters also said that after the enactment of
the Kissell Amendment, it was learned that the U.S. Trade
Representative did not properly notify FTA partners Mexico, Canada, and
Chile that DHS agencies could fall under stricter procurement rules for
national security purposes. The commenters pointed out that under the
rules of the FTAs and international procurement agreements, proper
notification is required. The commenters objected to the specific
mention in the interim rule of these countries by name. In the event
that the Office of the United States Trade Representative (USTR) were
to establish a new understanding with these three countries, the
commenters argued that DHS will have to issue new regulations, complete
with a public comment period in order to properly remove the countries
from the rule. The commenters observed that this will cause further
delay and negatively impact the ability to seek the full benefit of the
Kissell Amendment.
DHS response to the comment. Do not concur. The regulation, which
among other purposes functions as guidance for DHS contracting
officers, must convey what requirements apply to items that may or may
not be covered by the requirements of section 604. Deletion of the
named countries would complicate understanding of the rule under legal
requirements that exist today, and would further require each
individual contracting officer to determine the applicability of
section 604 in the event items are offered that originate in any of the
three listed countries. The agreements with these countries were
identified specifically only because they exist as exceptions to the
Transportation Security Administration's (TSA) exclusion from coverage
under international agreements. If, in the future, TSA were excluded
from these
[[Page 32678]]
agreements, the Department will amend these rules, as appropriate.
Comment on Adoption of the Defense Federal Acquisition Regulation
Supplement (DFARS)--Commenters stated they are concerned with the
interim rule unnecessarily plowing new ground with its definition of
``Item directly related to national security interests'' in Subpart
3025.7001(e)(5) and the inclusion of that phrase as an exception in
Subpart 3025.7002-2(b). The commenters argue that this language will
greatly complicate the ability of contractors and government
procurement officers to implement and comply with the new rule due to
its uncertainty of meaning and the lack of precedent in administering
the language at issue. A simpler and more reasonable approach, the
commenters argue, would be for DHS to eliminate Subpart 3025.7001(e)
and to replace Subpart 3025.7002-2(b) with regulatory language
contained in 48 CFR 225.7002.2(m) and (n), and adhere to its
accompanying guidance and precedents.
DHS response to the comment. Do not concur. The commenters suggest
that the DHS regulation adopt regulatory language developed and
promulgated by the DoD to comply with the ``Berry Amendment.'' DHS
cannot do so credibly. The statutory requirements applicable to DoD do
not include any requirement that covered items must be ``directly
related to the national security interests of the United States.'' If
there were such a statutory requirement applicable to DoD, DHS might be
able to look to DoD regulatory requirements as a guide in that area,
but no such requirement exists.
Comment on Possible Modifications of International Agreements--
Commenters noted that the Office of the U.S. Trade Representative is
actively seeking to make technical corrections to the North American
Free Trade Agreement (NAFTA) and the U.S.-Chile Free Trade Agreement
with respect to the coverage of the government procurement provisions
of those agreements to TSA. The commenters object to the language of
Subpart 3025.7002-3(a)(3) affecting TSA as drafted. Specifically, the
commenters object to the inclusion of the following language, ``* * *
except those from Mexico, Canada or Chile because TSA is listed as a
covered governmental entity in the North American Free Trade Agreement
(NAFTA) and the U.S.-Chile Free Trade Agreement * * *''
DHS response to the comment. Do not concur. This guidance is
necessary in order to ensure complete coverage of the statute and
timely guidance to DHS contracting officers and the public. If in the
future, TSA were excluded from these agreements, DHS will amend these
rules, as appropriate.
Comment on Individual Contracts verses HSAR Coverage Regarding
International Agreements--Commenters suggested that the interim rule at
HSAR 3025.7002-3(a)(3) not list Mexico, Canada and Chile as countries
from which items offered under TSA solicitations and contracts would be
exempt from the procurement restrictions because of U.S. obligations
under NAFTA and the U.S.-Chile FTA. In place of listing these countries
in the HSAR, the commenters suggest that individual solicitations and
contracts list these countries. They say that Mexico, Canada, and Chile
should be listed in individual contract solicitations as countries with
whom the United States has a trade agreement where TSA is listed as
covered governmental entity and thus (HSAR) 48 CFR 3025.7002 will not
apply.
DHS response to the comment. Do not concur. The commenter suggests
that individual solicitations list these countries rather than listing
the countries in the HSAR clause. Such an individual listing in each
covered solicitation would be impractical. For individual contracting
officers to list each covered country in each solicitation, each
contracting officer would need to know they are required to include
such a list, and it would require each contracting officer to know
which countries to list. Further, the public would not be given the
opportunity to review or comment on these contract terms that would
appear in multiple solicitations and contracts. The only practical way
to disseminate such knowledge to the public and to contracting officers
is to include it in the HSAR, which DHS has done.
Comment Regarding International Agreements--Commenters urge DHS to
write a final rule in a way that it will not need to be rewritten if in
the future, TSA were to be excluded from trade agreements covering
Mexico, Canada, and Chile.
DHS response to the comment. Do not concur. This regulation is
written in this way to give complete and current coverage of the
statute to the public and guidance to DHS contracting officers. If in
the future, TSA were to be excluded from these international
agreements, DHS will amend these rules, as appropriate.
Comment on Mirroring DFARS--Commenters contend that this rule needs
to mirror the DoD Berry Amendment regulations as closely as possible
and that they certainly do not need to refer to two different sets of
regulations.
DHS response to the comment. Generally concur. However, the rule
must comply with, and independently implement, its own statutory
language and requirements, which are not the same as the DoD Berry
Amendment.
Comment on Mirroring Berry Amendment--Commenters observed that in
pursuing the enactment of the Recovery Act the Administration and
Congress distinguished that the express purpose of this legislation was
to stimulate the U.S. economy by creating jobs and encouraging
investment. Specifically, they observe that the Kissell Amendment and
the accompanying floor debate clearly outline that the intent of this
Amendment is to bring the procurement practices of DHS in line with
those of the Berry Amendment as applied to the DoD. As a major supplier
of inputs for DoD textile and apparel products, a commenter believes it
is essential that, subject to its respective statutory language, the
Kissell Amendment implementing regulations mirror the DoD rules
governing the Berry Amendment to ensure the ability of contractors and
government procurement officers to implement and comply with the new
rule. As currently drafted, commenters advise that they are concerned
that the interim rule creates unnecessary uncertainty with its
definition of ``Item directly related to national security interests''
in Subpart 3025.7001(e) and the inclusion of that term as an exception
in Subpart 3025.7002-2(b).
DHS response to the comment. Concur in part. Section 604 has
language in common with the Berry Amendment, but its language is by no
means identical, nor even varied solely to import the requirements of
the Berry Amendment to a non-DOD agency. As such, section 604 is not
``an extension'' of the Berry Amendment to DHS per se. The limitation
of section 604's application to items ``directly related to national
security'' is pursuant to express statutory language. Section 604 is an
independent statutory requirement. If the requirements of section 604
were meant to apply to all DHS acquisitions, the qualifying and
limiting language of section 604 (i.e., that the covered item be
``directly related to national security interests'') would be
unnecessary. Given that these limits in scope are included in the plain
language of section 604, DHS has no choice but to honor them. DHS
considered, but rejected, an interpretation under which all DHS
acquisitions of covered textile items would be considered to be
``directly
[[Page 32679]]
related to the national security interests of the United States''
because it would have rendered those words a nullity. DHS cannot
interpret the presence of these limiting words as having no meaning or
effect. Because section 604 did not define this expression, DHS was
obliged to define it reasonably, which was explained in the preamble to
the interim rule. The first and best evidence of both Congressional
intent and Executive assent is the plain language of the statute. DHS
has endeavored to use the legislative history, where appropriate, to
inform a definition that is consistent with both the plain meaning of
the expression and its usage in this statute.
Comment on ``Component'' Definition--Section 3025.7001(b) defines
``component'' as ``any item supplied to the Government as part of an
end product or of another component.'' A commenter argues that, in a
global supply chain, this is an overly burdensome requirement, as it
potentially requires suppliers to reestablish content down many layers
of components. The commenter recommends that this definition be
modified as follows: (b) ``Component'' means any article, material or
supply incorporated directly into an end product.
The commenter explained that this definition establishes a
component as an item ``one off'' from the finished good, and is a
practicable and feasible requirement both for the supplier to meet and
DHS to administer. The commenter understands that the definition in the
interim rule is consistent with Federal procurement regulations and 41
U.S.C. 403, but because this term is not defined in the Act, the
commenter requests DHS flexibility in changing this definition.
DHS response to the comment. Do not concur. The definition of
``Component'' also appears in DFARS clause 252.225-7012 (Preference for
certain domestic commodities) and other clauses concerning restrictions
of procurements to domestic products. Where consistent with the
statutory language of section 604 and otherwise feasible, DHS has
attempted to harmonize the treatment of textile items under section
604, the Berry Amendment, and more generally articulated procurement
definitions.
Comment on Definition of ``produced''--A commenter notes that in
section 3025.7002-1, DHS will not acquire any national security product
or component that ``has not been grown, reprocessed, reused or produced
in the United States.'' The commenter requests that DHS provide clear,
plain English definitions of the terms ``reprocessed,'' ``reused,'' and
``produced'' as they relate to the interim rule.
DHS response to the comment. Do not concur. This phrase is straight
from section 604, paragraph (a). Additionally, these terms are the same
terms used in the DFARS implementation of the Berry Amendment
restrictions on clothing and fabrics. Neither section 604 nor the DFARS
define these terms; their meaning is plain enough to support
application of the statute.
Comment on Definition of ``protective equipment''--A commenter
noted that in section 3025.7002-1(a)(2), there is a reference to
``protective equipment (such as body armor).'' The commenter contends
that there are numerous types of protective equipment that may be
subject to this regulation and requests that DHS clarify its intent
with a definition of ``protective equipment,'' as this term relates to
the interim rule.
DHS response to the comment. Do not concur. This term is used in
the statute and the Federal Acquisition Regulation without definition
and is a readily understood term that does not require a definition.
Comment on Intent of ``individual equipment''--A commenter points
out in section 3025-7002-1(b)(7), there is a reference to ``individual
equipment manufactured from or containing any of the fibers, yarns,
fabrics, or materials listed in this paragraph (b).'' While the
commenter recognizes that this language is taken from the Kissell
Amendment, it is unclear to the commenter what type of equipment, other
than those categories enumerated in paragraph (a), would be categorized
as ``individual equipment.'' For example, the commenter observes that
the DoD Federal Supply Classification 8465 for ``individual equipment''
lists many of the same items listed in paragraph (a). The commenter
requests that DHS clarify its intent with a definition of ``individual
equipment,'' as this term relates to the interim rule.
DHS response to the comment. Do not concur. The term ``individual
equipment'' is not a category of specific items as listed in the
Federal Supply Classes (FSC's), but, rather, it is a descriptive
phrase. The phrase ``individual equipment'' could have been defined in
section 604 to be limited to the FSC category 8465, Individual
Equipment, but there is no indication in the section or its history
that this category of covered items was intended to be limited only to
FSC 8465. Accordingly, DHS intends to rely on the plain meaning of the
phrase and will not limit it or define it further in this final rule.
Comment on Dual Use Safety Equipment--A commenter asks DHS to
clarify whether the interim rule covers items acquired by the
Department to protect DHS employees from exposure to recognized
occupational health and safety hazards while these individuals are
engaged in protecting the nation's borders, transportation system,
maritime domain or critical infrastructure. The commenter suggests that
one example might be high visibility safety apparel worn by those DHS
employees in TSA or U.S. Customs and Border Protection (CBP), who work
near moving vehicles and need to be highly visible to avoid being
struck. Even though the workers are engaged in activities crucial to
national security, the commenter states its belief that the Department
does not intend that such dual-use protective equipment would fall
under the ``national security interests'' definition of the rule.
DHS response to the comment. Do not concur. The HSAR definition of
``directly related to the national security interests of the United
States'' is intended to be interpreted by DHS officials knowledgeable
of individual items and individual acquisitions in a multitude of
circumstances. DHS declines the invitation to determine in advance,
divorced from context, and in a more detailed fashion than it has
already, which items and which acquisitions are or are not likely to be
covered.
Comment on Applicability to Grants--A commenter asks that DHS
clarify that the interim rule does not apply to grant programs, such as
the Assistance to Firefighters Grant Program, the Urban Area Security
Initiative or the State Homeland Security Grant Program. The commenter
believes the interim rule does not apply to DHS grant programs because
it regulates Departmental acquisitions. The commenter also points out
that DHS also notes that congressional floor remarks indicate this
provision ``as principally pertaining to border and transportation
security * * *,'' while grant programs provide funds for state and
local emergency response. Moreover, neither the HSAR nor the Homeland
Security Acquisition Manual refers to grantees.
DHS response to the comment. To the extent that the commenter
requests the HSAR implementation to affirmatively state that the
section only applies to procurements, DHS declines the invitation. The
HSAR applies only to contracts and does not apply to grants. There is
no need to repeat in this rule that the HSAR is applicable only to
contracts, nor is the HSAR an
[[Page 32680]]
appropriate place to determine grant policy or regulation.
Comment on Transition Period--Safe Harbor/Domestic Non-Availability
Determination Request Period--Related to Section 3025.7002-2(c). A
commenter asks DHS to establish a period during which DHS vendors may
come into compliance with the interim rule and/or submit Domestic Non-
Availability Determination (DNAD) requests.
DHS response to the comment. Do not concur. There is no authority
in section 604 to extend or delay the period during which section 604
is effective.
Comment on Posting Training Material--A commenter urges DHS to make
publicly available any guidance and training documents provided to
contracting officers who will implement this interim rule. The
commenter suggests that making such guidance and training documents
publicly available will allow vendors and contracting officers to
communicate with each other clearly and effectively about DHS
procurements covered by this interim rule. Public availability is also
argued to allow the vendor community to know what is expected of them
and their products in advance of proposal submissions and final
procurement decisions. The commenter states that clear, plain English
guidance would be especially helpful for compliance with section
3025.7002-3 ``Specific application of trade agreements.''
DHS response to the comment. Concur. Training slides will be
posted, as permitted by law and DHS policy, on a publicly available Web
site for viewing and use by the public.
Comment on National Security--A commenter observes that DHS has
adopted an unnecessarily restrictive definition of items ``directly
related to national security interests'' for purposes of applying the
Kissell Amendment. The commenter states that, furthermore, it appears
that the interim rule intends to unnecessarily exclude certain textile
products from operation of the Kissell Amendment. The commenter argues
that the Kissell Amendment was intended to be an extension of the Berry
Amendment to DHS and that, by creating a new definition for purposes of
applying this amendment, DHS is undermining the intent of Congress and
creating unnecessary complications in the procurement process. The
commenter observes that the current rules governing the Berry Amendment
apply to all goods at the DoD, except in certain limited instances.
Within that spirit, the commenter believes that the final rule should
not deviate in any manner from what the commenter argues is the
original intent of Congress.
DHS response to the comment. Do not concur. The current Berry
Amendment is not restricted in application to textile ``items directly
related to national security.'' DHS is not at liberty to ignore the
plain language of a statute, which is the best evidence of
congressional intent and, in this case, of the language to which the
President assented. The Department believes that it came to the most
accurate interpretation of this language in relation to the intent of
Congress given the legislative record.
Comment on Normally Associated Components--A commenter argued that
DHS should amend the HSAR so that components and materials normally
associated with items listed in section 604(b)(1)(B)-(D) are not
covered under section 604 unless the components and materials are
otherwise specifically enumerated as a covered item in section 604. The
commenter stated that, presumably, like the Berry Amendment, when an
item is covered under section 604, it will only be compliant when the
manufacturing of that item occurs in the United States, regardless of
whether the non-covered components or materials are of domestic origin,
e.g., plastics. The commenter continues to state that, consequently,
material and components that are normally associated with covered items
should not be required to be compliant with section 604, except when
they are specifically enumerated as a covered item under section 604.
DHS response to the comment. Concur in part. With respect to
clothing covered by paragraph (b)(1)(A), section 604 exempts ``other
items not normally associated with'' clothing. However, there is no
such exemption for the other covered items addressed in other
paragraphs of the section. DHS believes it is impractical to list all
items that might not be normally associated with clothing in the
regulation. DHS believes a better solution is to leave decisions to
individual officials based on the facts of the situation.
Comment on Examples of Normally Associated Components--A commenter
urged DHS to amend the HSAR to add examples of material and components
that are normally associated with covered items, but which are not
themselves covered. The commenter contends this will serve to eliminate
confusion and assist industry to comply with section 604.
DHS response to the comment. Do not concur. Such a list would serve
no purpose other than to deprive contracting officers of discretion,
where a position may or may not be borne out by the facts of an
individual acquisition. DHS believes a better solution is to leave
decisions to individual officials based on the facts of the individual
acquisition.
Comment on Para-aramid Fibers--A commenter suggested that DHS reach
out to DoD in order to address the non-availability of fibers and yarns
that are para-aramid fibers and yarns manufactured in qualifying
countries, in a manner similar to exceptions granted by DoD. The
commenter suggests DHS should determine if para-aramid fibers that are
part of non-commercial items should be exempt (per a non-availability
determination) (commercial para-aramid fibers are exempt under the
interim rule).
DHS response to the comment. Concur in part. To the extent items
are procured by DHS that include para-aramid fibers and are covered by
section 604, cognizant programs will have to address availability of
para-aramid fibers and this will undoubtedly involve contacting
appropriate DoD officials.
Comment on Fire retardant thread non-availability--After stating a
belief that this rule is an extension (to DHS) of the Berry Amendment,
a commenter recounts a 2008 purchase of flame resistant uniforms for
the U.S. Army at Ft. Belvoir in which the commenter worked within the
boundaries of the Berry Amendment. However, the commenter found no
domestic source for the thread needed to meet the fire resistant
standards and had an exemption to have the uniform makers purchase the
thread from Lenzing (Austria). The commenter believes DHS will need a
way to likewise allow for exceptions not explicitly listed in the
proposed rule, and should plan for that inevitable situation by
indicating how exemption requests would need to be documented and
approved (e.g., by the Agency Head).
DHS response to the comment. Concur. The published rule describes
who must approve the nonavailability exception (the DHS Chief
Procurement Officer) and what information the request for approval must
include. See 3025.7002-2(c) for details.
III. Regulatory Requirements
A. Small Entity Analysis
Because this rule was initiated as an interim rule, the Regulatory
Flexibility Act requires neither an Initial nor a Final Regulatory
Flexibility analysis. Nonetheless, we considered whether the interim
rule would have a significant economic impact on a substantial number
of small entities at 74 FR 41348-41349. We received no comments on our
analysis and continue to believe that this rule would not have
[[Page 32681]]
a significant economic impact on a substantial number of small
entities.
B. Executive Order 12866 (Regulatory Planning and Review)
This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866, and the Office of Management and Budget has
not reviewed it under that Order.
C. Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding the rule so that they can better evaluate its
effects on them and participate in the rulemaking. Small businesses may
send comments on the actions of Federal employees who enforce, or
otherwise determine compliance with, Federal regulations to the Small
Business and Agriculture Regulatory Enforcement Ombudsman and the
Regional Small Business Regulatory Fairness Boards. The Ombudsman
evaluates these actions annually and rates each agency's responsiveness
to small business. If you wish to comment on actions by DHS employees,
call 1-888-REG-FAIR (1-888-734-3247). The DHS will not retaliate
against small entities that question or complain about this interim
rule or any DHS policy.
D. Collection of Information
The Paperwork Reduction Act (Pub. L. 104-13) does not apply because
the rule contains no information collection requirements. Accordingly,
the Department will not submit a change request for any burdens
concerning this rule to the Office of Management and Budget under 44
U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 3025 and 3052
Government procurement.
0
Accordingly, the interim rule amending 48 CFR Parts 3025 and 3052 which
was published at 74 FR 41346, on August 17, 2009, is adopted as a final
rule without change.
Richard K. Gunderson,
Acting Chief Procurement Officer, Department of Homeland Security.
[FR Doc. 2010-13804 Filed 6-8-10; 8:45 am]
BILLING CODE 9110-9B-P