41346 Federal Register / Vol. 74, No. 157 / Monday, August 17, 2009 / Rules and Regulations 

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: Interim rule with requests for 

comments. 

SUMMARY: The Department of Homeland 

Security (DHS) is amending its 

Homeland Security Acquisition 

Regulation (HSAR) parts 3025 and 3052 

to reflect a statutory change limiting the 

acquisition of products containing 

textiles from sources outside the United 

States. 

DATES: Effective Date: August 17, 2009. 

Comment Date: Comments and 

related material submitted electronically 

must be submitted to the Federal 

eRulemaking Portal http:// 

www.regulations.gov on or before 

September 16, 2009. Comments and 

related material submitted by mail must 

reach the Department of Homeland 

Security, Office of the Chief 

Procurement Officer, Acquisition Policy 

and Legislation Branch at the address 

shown below on or before September 

16, 2009, to be considered in the 

formation of the final rule. 

ADDRESSES: You may submit comments 

identified by DHS docket number DHS– 

2009–0081, using any one of the 

following methods: 

(1) Via the Internet at the Federal 

eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

(2) By mail to the Department of 

Homeland Security, Office of the Chief 

Procurement Officer, Acquisition Policy 

and Legislation Branch, ATTN: Jeremy 

Olson, 245 Murray Drive, Bldg. 410 

(RDS), Washington, DC 20528. 

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. Request for Comments 

II. Background 

III. Discussion of Interim Rule 

IV. Regulatory Requirements 

A. Small Entity Analysis 

B. Executive Order 12866 (Regulatory 

Planning and Review) 

C. Assistance for Small Entities 

D. Collection of Information 

E. Determination to Issue an Interim Rule 

I. Request for Comments 

We encourage you to participate in 

this rulemaking by submitting 

comments and related materials. 

Comments and related materials should 

be organized by HSAR Part, and 

indicate the specific section or sections 

of the interim rule that is being 

commented on. All comments received 

will be posted without change to 

http://www.regulations.gov, including 

any personal information provided. See 

ADDRESSES above for information on 

how to submit comments. If you submit 

comments by mail, please submit them 

in an unbound format, no larger than 

81⁄2 by 11 inches, suitable for copying 

and electronic filing. You may submit 

comments either by mail or via the 

Internet as identified in the ADDRESSES

section above; but to avoid duplication, 

DHS requests that you submit comments 

and materials by only one method. If 

you would like DHS to acknowledge 

receipt of comments submitted by mail, 

please enclose a self-addressed, stamped 

postcard or envelope. DHS will consider 

all comments and materials received 

during the comment period. We may 

change the final rule in view of them. 

Viewing comments and documents: 

To view comments and read background 

documents related to this rulemaking, 

go to http://www.regulations.gov, type 

the docket number for this rulemaking, 

DHS–2009–0081, into the ‘‘Search 

Documents’’ field and click on ‘‘Go>>.’’ 

Individuals without Internet access can 

make alternate arrangements for viewing 

comments and documents related to this 

rulemaking by contacting DHS at the 

FOR FURTHER INFORMATION CONTACT

information above. 

II. 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’s 

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. 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. 

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. 

This interim rule makes amendments 

to the Homeland Security Acquisition 

Regulation (HSAR) to add solicitation 

provisions, contract clauses and related 

policy statements implementing these 

requirements and exceptions for certain 

DHS contracts, option exercises and 

orders. 

III. Discussion of Interim Rule 

This rulemaking revises 48 CFR part 

3025, Foreign Acquisitions, and part 

3052, Solicitation Provisions and 

Contract Clauses, to limit acquisition of 

covered items for certain DHS 

acquisitions above the simplified 

acquisition threshold, unless DHS 

determines that such items qualify for a 

statutory exception. The rulemaking 

also implements the aspect of the law 

that requires that the restriction be 

applied in a manner consistent with 

United States obligations under 

international agreements. 

The ‘‘Buy American’’ restriction in 

Section 604 of the Recovery Act only 

covers items ‘‘directly related to the 

national security interests of the United 

States.’’ The Act does not further define 

this qualifying phrase and the related 

congressional committee reports shed 

no further light on the scope, 

boundaries, or intention behind the 

phrase itself. The House of 

Representatives Conference Report 

describes section 604 generally by 

stating: ‘‘The conferees include and 

modify a provision, as proposed by the 

House, related to the procurement of 

apparel and textile products by the 

Department of Homeland Security. This 

language is modeled after the Berry 

Amendment (10 U.S.C. 2533a), which 


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has required the Department of Defense 

to purchase domestically-manufactured 

textiles and apparel.’’ H. Conf. Rep. No. 

111–116, p. 438 (Feb 12, 2009). The 

Berry Amendment, however, does not 

employ the same ‘‘national security 

interests’’ phrase. Moreover, other 

Recovery Act acquisition restrictions, 

including section 1605 (which 

contemporaneously provided 

Government-wide restrictions on the 

use of Recovery Act funds to construct, 

alter, maintain, or repair public 

buildings or works unless all iron, steel, 

and manufactured goods that are used 

are produced in the United States) 

likewise do not contain this phrase. 

Remarks from the floor of the House 

of Representatives concerning section 

604 suggest deep concern ‘‘that we 

could have people crossing the border 

illegally wearing [U.S. Customs and 

Border Protection] or [Transportation 

Security Administration] uniforms 

manufactured in foreign countries.’’ 155 

Cong. Rec. H620, H723 (Jan 28, 2009) 

(remarks of Committee on Homeland 

Security Chairman Hon. Bennie G. 

Thompson upon introduction of the 

Kissell amendment, which, with some 

adjustments, became section 604); cf. 

153 Cong. Rec. H4646–H4655, H4651 

(May 9, 2007) (remarks of Congressman 

Hayes, who in debate on a proposed, 

similarly worded amendment in the 

previous Congress said it ‘‘* * * 

provides the assurance that the 

Department of Homeland Security 

officials who work on the front lines of 

national security are the only people 

wearing these sensitive uniforms.’’). 

Many different and diverse statutes, 

regulations and executive orders define 

the expressions ‘‘national security’’ and 

‘‘national security interests.’’ The most 

common of these, used in connection 

with classification of information and 

personnel and facilities security, defines 

these terms to mean pertaining to ‘‘the 

national defense or foreign relations of 

the United States.’’ See, e.g., Executive 

Order 12958, section 6.1(y) (term 

defined for order on classified national 

security information); 10 U.S.C. 801(16) 

(term defined for purposes of the Code 

of Military Justice). Other statutes 

employ other usages and definitions for 

these terms, which, when standing 

alone or when used with other words, 

fit the context and purpose of the 

particular statute. See, e.g., 8 U.S.C. 

1189(d)(2) (when used to determine 

threats posed by foreign terrorist 

organizations, ‘‘means the national 

defense, foreign relations, or economic 

interests of the United States’’); 39 CFR 

233.3 (when used with respect to 

authorizing the use of U.S. Postal mail 

covers, ‘‘protection of national security’’ 

means to protect the United States from 

actual or potential threats to its security 

by a foreign power or its agents, 

including an attack or other grave, 

hostile act; sabotage, or international 

terrorism; or clandestine intelligence 

activities, including commercial 

espionage). 

DHS considered employing the most 

common definition of the expression— 

pertaining to the national defense or 

foreign relations of the United States— 

but, with the exception of possible 

isolated applications to the Coast Guard, 

found this definition imprecise and an 

awkward fit for DHS functions that 

acquire textiles because, in many 

instances, those DHS components are 

not designated by law as national 

defense or foreign relations agencies. 

DHS considered covering all items 

acquired by DHS as ‘‘directly related to 

the national security interests of the 

United States,’’ but ultimately rejected 

that approach because to do so would 

render the statutory words ‘‘directly 

related to national security interests of 

the United States’’ superfluous (i.e., 

omission of the qualifying phrase by 

lawmakers would have achieved the 

same result). DHS also notes that 

lawmakers are not reluctant to employ 

the expression ‘‘homeland security’’ to 

define the reach of a statute, and chose 

not do so in this instance. See, e.g., 6 

U.S.C. 468 (‘‘homeland security 

missions’’ of the Coast Guard defined), 

6 U.S.C. 482 (‘‘homeland security 

information’’ defined). Moreover, 

applying the expression to the entirety 

of textile items purchased by DHS, 

irrespective of function or use, would 

include any number of activities that, 

while worthwhile, would render the 

expression ‘‘national security interests’’ 

patently overbroad, equating it with any 

activity that contributes to the strength 

of the Nation by promoting the general 

welfare. See Cole v. Young, 351 U.S. 

536, 544 (1956). In addition, the 

previously mentioned congressional 

floor remarks discussed the statute as 

principally pertaining to border and 

transportation security, with a potential 

for later expansion. 

DHS thus defines items ‘‘directly 

related to national security interests’’ at 

48 CFR 3025.7001(e) as items ‘‘intended 

for use in a Department of Homeland 

Security action protecting the nation 

from internal or external threats.’’ This 

definition includes the following 

elements: 

• ‘‘Intended for use’’—if an item is 

not acquired with the intention of being 

used in a manner related to national 

security interests, it is not covered, 

regardless of its eventual actual use; 

• ‘‘Use in a DHS action’’— if an item 

will not be used in a protective action 

performed by DHS, it is not covered (for 

example, drapes for a DHS action office 

would likely not qualify, but textile 

body armor likely would qualify); 

• ‘‘Protecting the nation from internal 

or external threats’’—the intended DHS 

action must be a protective action (for 

example, patrolling the border is a 

protective action; parading for 

dignitaries is not). 

So defined, the interim regulatory 

provisions capture only the relevant 

aspects of the Recovery Act ‘‘national 

security interests’’ requirement, and in a 

manner consonant with the known 

legislative intent and DHS functions. 

The expression captures items, among 

other items, used in actions by DHS 

components with border, transportation, 

and maritime security functions, and 

any other DHS component, where ready 

access by hostile foreign State, 

organized non-State, or criminal actors 

to the items, their manufacturing 

method, or supply chain, would pose a 

significant risk of circumvention or 

cooption of a DHS protective action. 

Other provisions of the interim 

regulations reflect the Recovery Act’s 

coverage of some textile items regardless 

of whether they are a commercial or a 

noncommercial item and other textile 

items only if they are noncommercial 

items. Interim 3025.7002–1(a)(1)–(2), 

consistent with sections 604(b) and (f), 

cover the following textile items 

regardless of whether they are 

commercial or noncommercial: 

• 3025.7002–1(a)(1)—clothing and 

the materials and components thereof, 

other than sensors, electronics, or other 

items added to, and not normally 

associated with, clothing (and the 

materials and components thereof); or 

• 3025.7002–1(a)(2)—tents, 

tarpaulins, covers, textile belts, bags, 

protective equipment (including but not 

limited to body armor), sleep systems, 

load carrying equipment (including but 

not limited to fieldpacks), textile marine 

equipment, parachutes, or bandages. 

Interim 3025.7002–1(b), consistent 

with Recovery Act sections 604(b) and 

(f), only covers noncommercial textile 

items as follows: 

• 3025.7002–1(b)—cotton and other 

natural fiber products, woven silk or 

woven silk blends, spun silk yarn for 

cartridge cloth, synthetic fabric or 

coated synthetic fabric (including all 

textile fibers and yarns that are for use 

in such fabrics), canvas products, or 

wool (whether in the form of fiber or 

yarn or contained in fabrics, materials, 

or manufactured articles); or any item of 

individual equipment manufactured 


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from or containing such fibers, yarns, 

fabrics, or materials. 

The interim regulations at 3025.7002– 

2 also reflect the circumstances wherein 

the Recovery Act excludes textile items 

from coverage or exempts covered items 

from the acquisition limitations; 

including, 

• Acquisitions at or below the 

simplified acquisition threshold 

(currently $100,000), as expressed and 

defined in the Federal Acquisition 

Regulation (FAR). 

• Acquisition of items not directly 

related to national security interests of 

the United States, as discussed above. 

• Acquisitions of any of the items 

otherwise covered by (HSAR) 48 CFR 

3025.7002–1, if the Chief Procurement 

Officer determines, based on procedures 

described in the interim regulation, that 

the item grown, reprocessed, reused, or 

produced in the United States cannot be 

acquired as and when needed in a 

satisfactory quality and sufficient 

quantity at United States market prices. 

• Acquisitions of items listed as 

‘‘nonavailable articles’’ in (FAR) 48 CFR 

25.104, as provided in the ‘‘availability 

exception’’ at Recovery Act section 

604(c). 

• Emergency acquisitions by 

activities located outside the United 

States, as stated in the Recovery Act. 

• Acquisitions by vessels in foreign 

waters, as stated in the Recovery Act. 

• Acquisitions of incidental amounts 

of cotton, other natural fibers, wool or 

other item covered by (HSAR) 48 CFR 

3025.7002–1(a)-(b) incorporated in an 

end product. This is an amount for 

which the estimated value of the 

covered item is not more than 10 

percent of the total price of the end 

product, as stated in the Recovery Act. 

• As discussed more fully below, 

acquisitions of textile items otherwise 

covered by (HSAR) 48 CFR 3025.7002– 

1(a)-(b) for which restricting a 

procurement of the items to those that 

have been grown, reprocessed, reused, 

or produced in the United States would 

be inconsistent with United States 

obligations under international 

agreements. 

Applicability of International 

Agreements 

The Recovery Act at section 604(k) 

requires that DHS implement the 

section ‘‘consistent with United States 

obligations under international 

agreements.’’ This means that to the 

extent that DHS and its components are 

subject to the various United States 

bilateral and plurilateral free trade 

agreements (FTAs) and the WTO 

Government Procurement Agreement 

(GPA), DHS textile acquisitions must be 

consistent with those obligations. 

The list of United States trade 

agreements relevant for procurement 

appear in the FAR at 48 CFR 25.400 (a) 

(1) and (2). The FAR at 48 CFR 25.003 

lists the signatories to the various free 

trade agreements in the definition of 

‘‘Free Trade Agreement country’’ and 

lists the signatories to the GPA in the 

definition of ‘‘World Trade Organization 

Government Procurement Agreement 

(WTO GPA) country.’’ Items from a Free 

Trade Agreement country or a WTO 

GPA country are ‘‘eligible products.’’ 

The United States has no obligations 

with respect to DHS procurements 

under the U.S.-Oman Free Trade 

Agreement. Procurements by the 

Transportation Security Administration 

(TSA) are excluded from all United 

States obligations, except with respect 

to the North American Free Trade 

Agreement (NAFTA) and the U.S.-Chile 

Free Trade Agreement. Accordingly, for 

all DHS components, except TSA as 

noted above, the interim requirements 

of new (HSAR) 48 CFR 3025.225 would 

be inapplicable to items that are eligible 

products under (FAR) 49 CFR Subpart 

25.4. This means that TSA, except with 

regard to products from Canada, Chile 

or Mexico, would not use (FAR) 48 CFR 

Subpart 25.4 in its procurements to 

exempt an item from a designated 

country from the requirements of the 

Act, but all other DHS components 

would do so. 

The interim regulations provide that 

covered DHS components must apply 

(FAR) 48 CFR Subpart 25.4 to exempt 

eligible products from qualified 

countries if the procurement exceeds 

the GPA threshold or the relevant FTA 

threshold, noting that the Recovery Act 

foreign textiles acquisition limitation 

does not apply to procurements below 

the simplified acquisition threshold 

($100,000). To the extent a procurement 

is for an eligible product from a country 

with a trade agreement threshold 

beneath the SAT (e.g., $67,826), the 

trade agreement and (FAR) 48 CFR 

Subpart 25.4 would apply to all 

procurements over the trade agreement 

threshold, and the requirements of 

HSAR 3025.70 would not apply. 

The Recovery Act foreign textiles 

acquisition limitation applies to covered 

items from countries that are not GPA 

or FTA countries regardless of which 

DHS component makes the acquisition. 

The interim HSAR subpart applies for 

all DHS components if the country of 

origin for an item is not a WTO GPA 

country or a Free Trade Agreement 

country (see (FAR) 48 CFR 25.003 

definitions). Under the interim 

regulations, DHS components cannot 

procure a covered textile item from a 

non-designated country unless one of 

the other Recovery Act exceptions 

applies to the acquisition. Even if such 

exception applies, however, the 

acquisition may still be covered by the 

Buy American Act. 

IV. Regulatory Requirements 

A. Small Entity Analysis 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601–612), we have considered 

whether this interim rule would have a 

significant economic impact on a 

substantial number of small entities. 

The term ‘‘small entities’’ comprises 

small businesses, not-for-profit 

organizations that are independently 

owned and operated and are not 

dominant in their fields, and 

governmental jurisdictions with 

populations of less than 50,000. 

The Federal Procurement Data System 

(FPDS) shows that during FY 2008, DHS 

awarded 1,283 contract actions for 

textile products totaling $74,132,846. Of 

the 322 businesses that received these 

awards, 249 (77%) were small 

businesses and 73 were identified as 

being ‘‘other than small business.’’ The 

total number of awards for products that 

originated in the United States was 

approximately 97% of the total number 

of awards. The total number of awards 

to small businesses for products that 

originated in the United States was 

approximately 98% (958 awards) of the 

total number of awards to small entities 

for textile products (981). FPDS data 

show only 23 awards were made to 

small businesses for textiles originating 

outside of the United States. Even if all 

of those awards for products that 

originated outside the United States 

would have been awarded to a small 

business that did not provide products 

originating in the United States, it 

would impact a very small proportion of 

awards to small businesses (2.3%). Also, 

based on this FPDS data, we estimate 

that these 23 awards were made to 12 

unique small businesses. FPDS further 

informs us that the majority of these 23 

awards made to 12 unique small 

businesses were made because of 

‘‘domestic nonavailability.’’ As items 

determined to be unavailable in the 

United States are excluded from the 

scope of this rule, we estimate that 

fewer than 5 small businesses would 

have an award (or awards) impacted by 

this rule. Accordingly, the number and 

proportion of small entities potentially 

impacted by this rule are small and the 

amount of impact is not significant. 

Based on this analysis, DHS does not 

believe this interim rule will have a 

significant economic impact on a 


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substantial number of small entities and 

that, other than the alternative 

interpretations discussed above related 

to national security interests, there are 

no additional significant alternatives to 

the interim rule that would minimize 

the impact of the interim rule on small 

entities. There are also no relevant 

Federal rules that duplicate, overlap, or 

conflict with the interim rule. DHS will, 

however, consider comments from small 

entities concerning the affected HSAR 

parts 3015, 3016, 3025, and 3052. 

Interested parties should submit such 

comments separately and should cite 5 

U.S.C. 601, et seq. (HSAR Case 2007– 

004) in the comments. 

B. Executive Order 12866 (Regulatory 

Planning and Review) 

This interim rule is a significant 

regulatory action under section 3(f) of 

Executive Order 12866 and the Office of 

Management and Budget has reviewed it 

under that Order. An assessment of 

potential costs and benefits under 

section 6(a)(3) of that Order is included 

within the Small Entity Analysis, 

Section A., above. 

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 interim 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 

interim rule contains no information 

collection requirements. Accordingly, 

the Department will not submit a 

change request for any burdens 

concerning this interim rule to the 

Office of Management and Budget under 

44 U.S.C. 3501, et seq. 

E. Determination To Issue an Interim 

Rule 

A determination has been made under 

the authority of the DHS Chief 

Procurement Officer that urgent and 

compelling reasons exist to promulgate 

this interim rule without prior 

opportunity for public comment. See 41 

U.S.C. 418b(d); Department of 

Homeland Security Delegation No. 0700 

(II.)(b). This action is necessary because 

the American Recovery and 

Reinvestment Act of 2009 became 

effective on enactment on February 17, 

2009, and the DHS foreign textile 

acquisition limitations become 

applicable to contracts entered into after 

August 16, 2009. Timely compliance 

with the Act is not possible if a final 

rule is promulgated after a thirty-day 

public comment period. Moreover, 

without effective HSAR provisions in 

place by August 16, 2009, there is an 

increased risk of inconsistent 

application of the Recovery Act section 

604 requirements and a potential lack of 

public understanding and transparency 

as to the processes and procedures for 

complying with the statute. Pursuant to 

Public Law 98–577 and FAR 1.501, 

however, the Department will consider 

public comments received in response 

to this interim rule in the formation of 

the final rule. 

List of Subjects in 48 CFR Parts 3025 

and 3052 

Government procurement. 

Richard Gunderson, 

Acting Chief Procurement Officer, 

Department of Homeland Security. 

■ Accordingly, DHS amends (HSAR) 48 

CFR chapter 30 as follows: 

CHAPTER 30—DEPARTMENT OF 

HOMELAND SECURITY 

■ 1. Add part 3025 to read as follows: 

PART 3025—FOREIGN ACQUISITION 

Subpart 3025.70—American Recovery 

and Reinvestment Act Restrictions on 

Foreign Acquisition 

Sec. 

3025.7000 Scope of subpart. 

3025.7001 Definitions. 

3025.7002 Restrictions on clothing, fabrics, 

and related items. 

3025.7002–1 Restrictions. 

3025.7002–2 Exceptions. 

3025.7002–3 Specific application of trade 

agreements. 

3025.7003 Contract clauses. 

Authority: 41 U.S.C. 418b(a) and (b). 

3025.7000 Scope of subpart. 

This subpart contains restrictions on 

the acquisition of certain foreign textile 

products imposed by the American 

Recovery and Reinvestment Act of 2009 

on contracts, exercising of an option and 

orders entered into on or after August 

16, 2009 with funds appropriated or 

otherwise provided on or before 

February 17, 2009. 

3025.7001 Definitions. 

As used in this subpart— 

(a) ‘‘Commercial,’’ as applied to an 

item described in (HSAR) 48 CFR 

3025.7002–1, means an item of supply, 

whether an end product or component, 

that meets the definition of ‘‘commercial 

item’’ set forth in (FAR) 48 CFR 2.101. 

(b) ‘‘Component’’ means any item 

supplied to the Government as part of 

an end product or of another 

component. 

(c) ‘‘End product’’ means supplies 

delivered under a line item of a 

contract. 

(d) ‘‘Non-commercial,’’ as applied to 

an item described in (HSAR) 48 CFR 

3025.7002–1, means an item of supply, 

whether an end product or component, 

that does not meet the definition of 

‘‘commercial item’’ set forth in (FAR) 48 

CFR 2.101. 

(e) ‘‘Item directly related to national 

security interests’’ means an item 

intended for use in a Department of 

Homeland Security action protecting the 

nation from internal or external threats, 

including protecting the nation’s 

borders, transportation system, maritime 

domain or critical infrastructure, as 

determined by the contracting officer. 

3025.7002 Restrictions on clothing, 

fabrics, and related items. 

3025.7002–1 Restrictions. 

The following restrictions implement 

section 604 of the American Recovery 

and Reinvestment Act of 2009 and they 

apply to all types of actions, orders, 

exercising of an option and contracts. 

Except as provided in subsection 

(HSAR) 48 CFR 3025.7002–2, do not 

acquire, either as end products or 

components, any item listed in 

paragraphs (a) or (b) of this section, if 

the item is directly related to the 

national security interests of the United 

States and the item has not been grown, 

reprocessed, reused, or produced in the 

United States: 

(a) Commercial or non-commercial 

items—(1) Clothing and the materials 

and components thereof, other than 

sensors, electronics, or other items 

added to, and not normally associated 

with, clothing (and the materials and 

components thereof); or (2) Tents, 

tarpaulins, covers, textile belts, bags, 

protective equipment (such as body 

armor), sleep systems (sleeping bags), 

load carrying equipment (such as 


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41350 Federal Register / Vol. 74, No. 157 / Monday, August 17, 2009 / Rules and Regulations 

fieldpacks), textile marine equipment, 

parachutes or bandages. 

(b) Non-commercial items— 

(1) Cotton and other natural fiber 

products. 

(2) Woven silk or woven silk blends. 

(3) Spun silk yarn for cartridge cloth. 

(4) Synthetic fabric or coated 

synthetic fabric (including all textile 

fibers and yarns that are for use in such 

fabrics). 

(5) Canvas products. 

(6) Wool (whether in the form of fiber 

or yarn or contained in fabrics, 

materials, or manufactured articles). 

(7) Any item of individual equipment 

manufactured from or containing any of 

the fibers, yarns, fabrics, or materials 

listed in this paragraph (b). 

3025.7002–2 Exceptions. 

Acquisitions in the following 

categories are not subject to the 

restrictions in (HSAR) 48 CFR 

3025.7002–1: 

(a) Acquisitions at or below the 

simplified acquisition threshold. 

(b) Acquisition of items not directly 

related to national security interests of 

the United States. 

(c) Acquisitions of any of the items 

otherwise covered by (HSAR) 48 CFR 

3025.7002–1, if the Chief Procurement 

Officer determines that the item grown, 

reprocessed, reused, or produced in the 

United States cannot be acquired as and 

when needed in a satisfactory quality 

and sufficient quantity at United States 

market prices. When this exception is 

used— 

(1) Only the DHS Chief Procurement 

Officer is authorized to make the 

domestic nonavailability determination. 

(2) The DHS Component, not later 

than 7 days after the award of the 

contract, must post a notification that 

the exception has been applied on the 

Government-wide point of entry, which 

may be combined with any synopsis of 

award. 

(3) The supporting documentation for 

the CPO determination prepared by the 

DHS Component(s) shall include— 

(i) An analysis of alternatives that 

would not require a domestic 

nonavailability determination; and 

(ii) A written justification by the 

requiring activity, with specificity, why 

such alternatives are unacceptable. 

(d) Acquisitions of items listed in 

FAR 48 CFR 25.104. 

(e) Emergency acquisitions by 

activities located outside the United 

States. 

(f) Acquisitions by vessels in foreign 

waters. 

(g) Acquisitions of incidental amounts 

of cotton, other natural fibers, wool or 

other item covered by (HSAR) 48 CFR 

3025.7002–1(a)-(b) incorporated in an 

end product, for which the estimated 

value of the item so covered is not more 

than 10 percent of the total price of the 

end product. 

(h) Acquisitions of items otherwise 

covered by (HSAR) 48 CFR 3025.7002– 

1(a) and (b) for which restricting a 

procurement of the items to those that 

have been grown, reprocessed, reused, 

or produced in the United States would 

be inconsistent with United States 

obligations under international 

agreements. Acquisitions of products 

that are eligible products per (FAR) 48 

CFR Subpart 25.4 are not covered by 

these restrictions; see (HSAR) 48 CFR 

3025.7003–2 for specific application of 

trade agreements. 

3025.7002–3 Specific application of trade 

agreements. 

(a) For covered items entitled to nondiscriminatory treatment under the 

World Trade Organization Agreement 

on Government Procurement (WTO 

GPA), or any Free Trade Agreement 

(FTA) listed in (FAR) 48 CFR Subpart 

25.4, this subpart is applied as follows— 

(1) For solicitations, orders, exercising 

of an option and contracts issued by any 

component other than Transportation 

Security Administration (TSA), in 

which any covered items will be 

procured with a value that is both above 

the simplified acquisition threshold, 

and below the applicable trade 

agreement threshold in (FAR) 48 CFR 

25.402, apply (HSAR) 48 CFR 

3025.7002–1. Section 3025.7002–2(h) 

will exclude eligible products of 

designated countries with FTA 

thresholds beneath the simplified 

acquisition threshold from coverage of 

section 604. 

(2) For solicitations, orders, exercising 

of an option and contracts issued by any 

component other than Transportation 

Security Administration (TSA), in 

which any covered items will be 

procured with a value exceeding 

$194,000 (or the superseding threshold 

upon updating of (FAR) 48 CFR 25.402), 

(HSAR) 48 CFR 3025.7002–1 does not 

apply if the items are eligible products 

per FAR 48 CFR Subpart 25.4; follow 

(FAR) 48 CFR part 25 instead. 

(3) For solicitations, orders, exercising 

of an option and contracts issued by 

TSA in which any covered items will be 

procured with a value exceeding the 

simplified acquisition threshold, 

(HSAR) 48 CFR 3025.7002 applies to all 

covered items 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 but TSA is 

excluded from all other trade 

agreements. 

(b) For covered items from a country 

that is not entitled to nondiscriminatory treatment under the 

WTO GPA, or any FTA listed in (FAR) 

48 CFR subpart 25.4, apply the 

restrictions of (HSAR) 48 CFR 

3025.7002 to all solicitations, orders, 

exercising of an option and contracts 

exceeding the simplified acquisition 

threshold in place of the Buy America 

Act policies at (FAR) 48 CFR Subpart 

25.1. 

3025.7003 Contract clauses. 

Unless an exception under (HSAR) 48 

CFR 3025.7002–2(a), (b), (e) or (f) 

applies, insert the clause at (HSAR) 48 

CFR 3052.225–70, Requirement for Use 

of Certain Domestic Commodities, in 

solicitations, exercising of an option, 

contract modifications that add new 

items (or which make a cardinal change) 

and contracts with a value exceeding 

the simplified acquisition threshold 

when procuring any item covered under 

(HSAR) 48 CFR 3025.7002–1(a) or (b). 

PART 3052—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 2. The authority citation for part 3052 

continues to read as follows: 

Authority: 41 U.S.C. 418b(a) and (b). 

■ 3. Add section 3052.225–70 to read as 

follows: 

3052.225–70 Requirement for Use of 

Certain Domestic Commodities. 

As prescribed in (HSAR) 48 CFR 

3025.7003, use the following clause: 

Requirement for Use of Certain Domestic 

Commodities (AUG 2009) 

(a) Definitions. As used in this clause— 

(1) ‘‘Commercial,’’ as applied to an item 

described in subsection (b) of this clause, 

means an item of supply, whether an end 

product or component, that meets the 

definition of ‘‘commercial item’’ set forth in 

(FAR) 48 CFR 2.101. 

(2) ‘‘Component’’ means any item supplied 

to the Government as part of an end product 

or of another component. 

(3) ‘‘End product’’ means supplies 

delivered under a line item of this contract. 

(4) ‘‘Non-commercial,’’ as applied to an 

item described in subsections (b) or (c) of this 

clause, means an item of supply, whether an 

end product or component, that does not 

meet the definition of ‘‘commercial item’’ set 

forth in (FAR) 48 CFR 2.101. 

(5) ‘‘Qualifying country’’ means a country 

with a memorandum of understanding or 

international agreement with the United 

States under which DHS procurement is 

covered. 

(6) ‘‘United States’’ includes the 

possessions of the United States. 


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Federal Register / Vol. 74, No. 157 / Monday, August 17, 2009 / Rules and Regulations 41351 

(b) The Contractor shall deliver under this 

contract only such of the following 

commercial or non-commercial items, either 

as end products or components, that have 

been grown, reprocessed, reused, or 

produced in the United States: 

(1) Clothing and the materials and 

components thereof, other than sensors, 

electronics, or other items added to, and not 

normally associated with, clothing and the 

materials and components thereof; or 

(2) Tents, tarpaulins, covers, textile belts, 

bags, protective equipment (such as body 

armor), sleep systems, load carrying 

equipment (such as fieldpacks), textile 

marine equipment, parachutes or bandages. 

(c) The Contractor shall deliver under this 

contract only such of the following noncommercial items, either as end products or 

components, that have been grown, 

reprocessed, reused, or produced in the 

United States: 

(1) Cotton and other natural fiber products. 

(2) Woven silk or woven silk blends. 

(3) Spun silk yarn for cartridge cloth. 

(4) Synthetic fabric or coated synthetic 

fabric (including all textile fibers and yarns 

that are for use in such fabrics). 

(5) Canvas products. 

(6) Wool (whether in the form of fiber or 

yarn or contained in fabrics, materials, or 

manufactured articles). 

(7) Any item of individual equipment 

manufactured from or containing any of the 

fibers, yarns, fabrics, or materials listed in 

this paragraph (c). 

(d) This clause does not apply— 

(1) To items listed in (FAR) 48 CFR 25.104, 

or other items for which the Government has 

determined that a satisfactory quality and 

sufficient quantity cannot be acquired as and 

when needed at United States market prices; 

(2) To incidental amounts of cotton, other 

natural fibers, or wool incorporated in an end 

product, for which the estimated value of the 

cotton, other natural fibers, or wool is not 

more than 10 percent of the total price of the 

end product; or 

(3) To items that are eligible products per 

(FAR) 48 CFR Subpart 25.4. 

(End of clause.) 

[FR Doc. E9–19647 Filed 8–13–09; 8:45 am] 

BILLING CODE 9110–9B–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Parts 25 and 32 

[Docket No. FWS–R3–NSR–2009–0007] 

[32579–1261–0000–4A] 

RIN 1018–AW48 

2009–2010 Hunting and Sport Fishing 

Regulations for the Upper Mississippi 

River National Wildlife and Fish Refuge 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: The U.S. Fish and Wildlife 

Service (Service or we) amends the 

regulations for the Upper Mississippi 

River National Wildlife and Fish Refuge 

(refuge) that pertain to existing 

programs for migratory game bird 

hunting, upland game hunting, and big 

game hunting. These changes take effect 

with the 2009–2010 season, implement 

portions of the Comprehensive 

Conservation Plan for the refuge 

approved in 2006, and amend other 

regulations. We also make amendments 

to reflect recent OMB approval of new 

hunting and fishing application forms 

and activity reports for national wildlife 

refuges. 

DATES: This rule is effective August 17, 

2009. 

FOR FURTHER INFORMATION CONTACT: Rick 

Frietsche, (507) 452–4232; Fax (507) 

452–0851. 

SUPPLEMENTARY INFORMATION: 

Background 

The National Wildlife Refuge System 

Administration Act of 1966, as amended 

by the National Wildlife Refuge 

Improvement Act of 1997 (16 U.S.C. 

668dd–668ee), authorizes the Secretary 

of the Interior (Secretary) to allow uses 

of refuge areas, including hunting and/ 

or sport fishing, upon a determination 

that such uses are compatible with the 

purposes of the refuge and National 

Wildlife Refuge System (Refuge System) 

mission. The action also must be in 

accordance with provisions of all laws 

applicable to the areas, developed in 

coordination with the appropriate State 

fish and wildlife agency(ies), and 

consistent with the principles of sound 

fish and wildlife management and 

administration. These requirements 

ensure that we maintain the biological 

integrity, diversity, and environmental 

health of the Refuge System for the 

benefit of present and future generations 

of Americans. 

The law requires the Secretary to 

prepare a Comprehensive Conservation 

Plan (CCP) for each refuge and to 

manage each refuge in a manner 

consistent with the CCP. Each CCP is 

guided by the overarching requirement 

that refuges are to be managed to fulfill 

the purposes for which they were 

established and the mission of the 

Refuge System. In addition, we must 

administer the Refuge System to provide 

for the conservation of fish, wildlife and 

plant resources and their habitat and to 

ensure their biological integrity, 

diversity, and environmental health. 

Each CCP must identify and describe 

the refuge’s purposes; fish, wildlife, and 

plant populations; cultural resources; 

areas for administrative or visitor 

facilities; significant problems affecting 

resources and actions necessary; and 

opportunities for compatible wildlifedependent recreation. Each CCP must 

also be developed through consultation 

with the States, other Federal agencies, 

and the public, and be coordinated with 

applicable State conservation plans. 

Upper Mississippi River National 

Wildlife and Fish Refuge 

The Upper Mississippi River National 

Wildlife and Fish Refuge (refuge) 

encompasses 240,000 acres in a moreor-less continuous stretch of 261 miles 

of Mississippi River floodplain in 

Minnesota, Wisconsin, Iowa, and 

Illinois. Congress established the refuge 

in 1924 to provide a refuge and breeding 

ground for migratory birds, fish, other 

wildlife, and plants. The refuge is 

perhaps the most important corridor of 

habitat in the central United States due 

to its species diversity and abundance 

and is the most visited refuge in the 

United States with 3.7 million annual 

visitors. Approximately 187,000 acres of 

the refuge is open to all hunting, and 

approximately 140,000 acres of surface 

water is open to year-round fishing. 

On July 11, 2006, we published a 

notice of availability of our Final 

Environmental Impact Statement (EIS) 

and CCP for the refuge (71 FR 39125), 

and we accepted public comments on 

the Final EIS for 30 days. On August 24, 

2006, the Regional Director of the 

Midwest Region of the Fish and Wildlife 

Service signed the Record of Decision 

that documented the selection of 

Alternative E, the Preferred Alternative 

presented in the Final EIS. We 

published a notice of availability of that 

Record of Decision on November 2, 

2006 (71 FR 64553). In accordance with 

the Record of Decision, we prepared a 

CCP based on Alternative E. The CCP 

was approved on October 24, 2006. The 

Final EIS and CCP are available at 

http://www.fws.gov/midwest/planning/ 

uppermiss/. 

We developed the CCP for the refuge 

in accordance with all requirements 

including the consultation and public 

involvement provisions of the National 

Wildlife Refuge System Improvement 

Act. These include new compatibility 

determinations for hunting and fishing, 

which are referenced and listed in 

Appendix E of the Final EIS (which 

includes recreational and commercial 

fishing, migratory bird and big game 

hunting, wildlife observation and 

photography). We completed hunting 

and fishing regulations in 2007 to 

implement the goals, objectives, and 

strategies described in the CCP 

pertaining to hunting and fishing and 

related uses. We published a proposed 

rule in the Federal Register on June 28, 

2007 (72 FR 35380), and a final rule was 


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