Federal Register / Vol. 75, No. 110 / Wednesday, June 9, 2010 / Rules and Regulations 32673 

places it appears, and adding, in its 

place, ‘‘December 31, 2011.’’ 

[FR Doc. 2010–13871 Filed 6–8–10; 8:45 am] 

BILLING CODE 8320–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–HQ–OAR–2010–0409; FRL–9159–5] 

Finding of Failure To Submit Section 

110 State Implementation Plans for 

Interstate Transport for the 2006 

National Ambient Air Quality 

Standards for Fine Particulate Matter 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is making a finding that 

certain states have failed to submit State 

Implementation Plans (SIPs) to satisfy 

the attainment and maintenance 

interstate transport requirements of the 

Clean Air Act (CAA) with respect to the 

2006 24-hour National Ambient Air 

Quality Standards (NAAQS) for fine 

particulate matter (24-hour PM2.5). 

Pursuant to the CAA, states are required 

to submit SIPs that satisfy the 

requirements of the CAA related to 

interstate transport of pollution. This 

document addresses two elements of 

that requirement. A state must address 

its significant contribution to 

nonattainment and its interference with 

maintenance of a NAAQS in any 

neighboring state. The CAA requires 

that states submit SIPs to meet the 

applicable requirements of the CAA 

within 3 years after the promulgation of 

a new or revised NAAQS, or within 

such shorter period as EPA may 

provide. On September 21, 2006, EPA 

promulgated a final rule establishing 

new standards for the 24-hour PM2.5

NAAQS. At present, 29 states or 

territories have not yet submitted 

complete SIPs to satisfy the section 

110(a) nonattainment and maintenance 

transport requirements. Through this 

action, EPA is making a finding of 

failure to submit these SIPs which 

creates a 2-year deadline for the 

promulgation of a Federal 

Implementation Plan (FIP) by EPA 

unless, prior to that deadline, a state 

makes a submission to meet these two 

requirements of the CAA and EPA 

approves such submission. 

DATES: The effective date of this rule is 

July 9, 2010. 

FOR FURTHER INFORMATION CONTACT: 

General questions concerning this final 

rule should be addressed to Ms. Gobeail 

McKinley, Office of Air Quality 

Planning and Standards, Geographic 

Strategies Group, Mail Code C539–04, 

Research Triangle Park, NC 27711; 

telephone (919) 541–5246; e-mail 

address: gobeail.mckinley@epa.gov. 

SUPPLEMENTARY INFORMATION: For 

questions related to a specific state, 

please contact the appropriate regional 

office: 

Regional offices States 

Ray Werner, Chief, Air Programs Branch, EPA Region II, 290 Broadway, 25th Floor, New York, 

NY 10007–1866.

Puerto Rico and the U.S. Virgin Islands. 

Cristina Fernandez, Associate Director, Office of Air Program Planning (3AP30), Air Protection 

Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, 

PA 19103–2023.

Maryland, Pennsylvania, Virginia, West Virginia, and the District of Columbia. 

Jay Bortzer, Chief, Air Programs Branch, EPA Region V, 77 West Jackson Street, Chicago, IL 

60604.

Illinois, Michigan, Minnesota, and Wisconsin. 

Guy Donaldson, Chief, Air Planning Section, EPA Region VI, 1445 Ross Avenue, Dallas, TX 

75202.

Louisiana and Oklahoma. 

Josh Tapp, Chief, Air Programs Branch, EPA Region VII, 901 North 5th Street, Kansas City, 

Kansas 66101–2907, (913) 551–7606.

Iowa and Nebraska. 

Monica Morales, Leader, Air Quality Planning Unit, EPA Region VIII, U.S. EPA Region VIII, 

1595 Wynkoop Street, Denver, CO 80202–1129.

Colorado, Montana, North Dakota, South Dakota, Utah, and Wyoming. 

Lisa Hanf, Chief, Air Planning Office, EPA Region IX, 75 Hawthorne Street, San Francisco, CA 

94105.

Hawaii, American Samoa, the Commonwealth 

of the Northern Mariana Islands, and Guam. 

Michael McGown, Manager, State and Tribal Air Programs, EPA Region X, Office of Air, 

Waste, and Toxics, Mail Code AWT–107, 1200 Sixth Avenue, Suite 900, Seattle, WA 98101.

Alaska, Idaho, Oregon, and Washington. 

Table of Contents 

I. Background 

II. This Action 

III. Statutory and Executive Order Reviews 

A. Notice and Comment Under the 

Administrative Procedures Act (APA) 

B. Executive Order 12866: Regulatory 

Planning and Review 

C. Paperwork Reduction Act 

D. Regulatory Flexibility Act 

E. Unfunded Mandates Reform Act 

F. Executive Order 13132 (Federalism) 

G. Executive Order 13175 

H. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

I. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

J. National Technology Transfer and 

Advancement Act 

K. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

L. Congressional Review Act 

M. Judicial Review 

I. Background 

On October 17, 2006, EPA published 

a final rule revising the 24-hour 

standard for fine particulate matter 

(PM2.5) from 65 micrograms per cubic 

meter (μg/m3) to 35 μg/m3. Section 

110(a)(1) of the CAA requires states to 

submit revised SIPs that provide for the 

implementation, maintenance, and 

enforcement of a new or revised 

standard within 3 years after 

promulgation of such standard, or 

within such shorter period as EPA may 

prescribe. Section 110(a)(2)(D)(i) 

contains four elements that revised SIPs 

must address. This findings notice 

addresses the first two elements which 

require each state to submit SIPs which 

contain adequate provisions to prohibit 

air pollution within the state that 

(1) contributes significantly to another 

state’s nonattainment of the NAAQS; or 

(2) interferes with another state’s 

maintenance of the NAAQS. Section 

110(a)(1) imposes the obligation upon 

states to make a SIP submission for a 

new or revised NAAQS, but the 

contents of that submission may vary 

depending upon the facts and 

circumstances. In particular, the data 

and analytical tools available at the time 

the state develops and submits the SIP 

for a new or revised NAAQS necessarily 

affects the content of the submission. 

States were required to have 

submitted complete SIPs that addressed 


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the section 110(a)(2)(D)(i)(I) requirement 

related to interstate transport for the 

2006 24-hour PM2.5 NAAQS by 

September 21, 2009. At present, 29 

states and territories have not made a 

SIP submittal that addresses the 

attainment and maintenance aspects of 

this requirement. This includes the 

following states or territories: Alaska, 

Colorado, Hawaii, Idaho, Illinois, Iowa, 

Louisiana, Maryland, Michigan, 

Minnesota, Montana, Nebraska, North 

Dakota, Oklahoma, Oregon, 

Pennsylvania, South Dakota, Utah, 

Virginia, Washington, West Virginia, 

Wisconsin, Wyoming, the District of 

Columbia, American Samoa, the 

Commonwealth of the Northern Mariana 

Islands, Guam, Puerto Rico, and the U.S. 

Virgin Islands. EPA is making a finding 

of failure to submit SIPs for these two 

transport requirements for all these 

states and territories. It should be noted 

that a number of other states initially 

submitted SIP revisions to address this 

requirement. EPA will review and make 

a separate determination for those SIPs. 

This finding establishes a 2-year 

deadline for promulgation by EPA of a 

FIP, in accordance with section 

110(c)(1), for any state that either does 

not submit or EPA can not approve a 

SIP as meeting the attainment and 

maintenance requirements of section 

110(a)(2)(D)(i)(I) for the 2006 24-hour 

PM2.5 NAAQS. This action does not 

result in sanctions pursuant to section 

179 because this finding of failure to 

submit does not pertain to a part D plan 

for nonattainment areas, or to a SIP Call 

pursuant to section 110(k)(5). 

II. This Action 

By this action, EPA is making the 

finding that states have failed to submit 

complete SIPs to address the attainment 

and maintenance requirements of 

section 110(a)(2)(D)(i)(I) of the CAA for 

the revised 2006 24-hour PM2.5 NAAQS. 

This finding creates a 2-year deadline 

for the promulgation of a FIP by EPA for 

a particular state or territory, unless that 

state or territory submits a SIP to satisfy 

these section 110(a)(2)(D)(i)(I) 

requirements, and EPA approves such 

submission prior to that deadline. 

III. Statutory and Executive Order 

Reviews 

A. Notice and Comment Under the 

Administrative Procedures Act (APA) 

This is a final EPA action, which is 

subject to notice-and-comment 

requirements of the Administrative 

Procedures Act (APA), 5 U.S.C. 553(b). 

However, EPA invokes, consistent with 

past practice (for example, 61 FR 

36294), the good cause exception 

pursuant to APA, 5 U.S.C. 553(b)(3)(B). 

Notice and comment are unnecessary 

because no significant EPA judgment is 

involved in making a finding of failure 

to submit SIPs or elements of SIPs 

required by the CAA, where states have 

made no submissions to meet the 

requirement by the statutory deadline. 

B. Executive Order 12866: Regulatory 

Planning and Review 

This action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order (EO) 12866 (58 FR 

51735, October 4, 1993) and is therefore 

not subject to review by the Office of 

Management and Budget under the EO. 

C. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. Burden is 

defined at 5 CFR 1320.3(b). This action 

relates to the requirement in the CAA 

for states to submit SIPs under section 

110(a)(1) that implements the CAA 

requirements for the revised 24-hour 

PM2.5 NAAQS. Section 110(a)(1) of the 

CAA requires that states submit SIPs 

that implement, maintain, and enforce a 

new or revised NAAQS which satisfies 

the requirements of section 110(a)(2) 

within 3 years of promulgation of such 

standard, or shorter period as EPA may 

provide. The present final action does 

not establish any new information 

collection requirement apart from that 

required by law. 

D. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

APA or any other statute unless the EPA 

certifies that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

Small entities include small businesses, 

small organizations, and small 

governmental jurisdictions. 

For the purpose of assessing the 

impacts of this final action on small 

entities, small entity is defined as: (1) A 

small business that is a small industry 

entity as defined in the U.S. Small 

Business Administration (SBA) size 

standards. (See 13 CFR, part 121); (2) a 

small governmental jurisdiction that is a 

government of a city, county, town, 

school district or special district with a 

population of less than 50,000; and (3) 

a small organization that is any not-for 

profit enterprise which independently 

owned and operated is not dominate in 

its field. 

Courts have interpreted the RFA to 

require a regulatory flexibility analysis 

only when small entities will be subject 

to the requirements of the rule. See, 

Michigan v. EPA, 213 F.3d 663, 668–69 

(DC Cir., 2000), cert. den., 532 U.S. 903 

(2001). This rule would not establish 

requirements applicable to small 

entities. Instead, it would require states 

to develop, adopt, and submit SIPs to 

meet the requirements of section 

110(a)(2)(D)(i), and would leave to the 

states the task of determining how to 

meet those requirements, including 

which entities to regulate. Moreover, 

because affected states would have 

discretion to choose the sources to 

regulate and how much emissions 

reductions each selected source would 

have to achieve, EPA could not predict 

the effect of the rule on small entities. 

After considering the economic impacts 

of this final rule on small entities, I 

certify that this action will not have a 

significant economic impact on a 

substantial number of small entities. In 

addition, although the action is subject 

to the Administrative Procedures Act, 

the Agency has invoked the ‘‘good 

cause’’ exemption under 5 U.S.C. 553(b); 

therefore, it is not subject to the notice 

and comment requirement. 

E. Unfunded Mandates Reform Act 

This action contains no federal 

mandates under the provisions of Title 

II of the Unfunded Mandates Reform 

Act of 1995 (UMRA), 2 U.S.C. 1531– 

1538 for state, local, or tribal 

governments or the private sector. The 

action implements mandate(s) 

specifically and explicitly set forth by 

the Congress in CAA section 

110(a)(2)(D)(i)(I) without the exercise of 

any policy discretion by EPA. 

This action does not create any 

additional requirements beyond those of 

the 2006 24-hour PM2.5 NAAQS (71 FR 

61144, October 17, 2006). Therefore, no 

UMRA analysis is needed. This rule 

responds to the requirement in the CAA 

for states to submit SIPs to satisfy the 

requirements of section 110(a)(2) of the 

CAA for the 2006 24-hour PM2.5

NAAQS. Section 110(a)(1) of the CAA 

requires that states submit SIPs that 

implement, maintain, and enforce a new 

or revised NAAQS within 3 years of 

promulgation of such standard, or 

shorter period as EPA may provide. This 

action does not impose any 

requirements beyond those specified in 

the Act. 

Therefore, this action is not subject to 

the requirements of sections 202 or 205 

of the UMRA. This action is also not 

subject to the requirements of section 

203 of UMRA because it contains no 

regulatory requirements that might 


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significantly or uniquely affect small 

governments. 

F. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in EO 

13132. The CAA establishes the scheme 

whereby states take the lead in 

developing plans to meet the NAAQS. 

This action will not modify the 

relationship of the states and EPA for 

purposes of developing programs to 

implement the NAAQS. Thus, Executive 

Order 13132 does not apply to this 

action. 

G. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). This action responds to the 

requirement in the CAA for states to 

submit SIPs to satisfy the requirements 

of section 110(a)(2) of the CAA for the 

2006 24-hour PM2.5 NAAQS. Section 

110(a)(1) of the CAA requires that states 

submit SIPs that implement, maintain, 

and enforce a new or revised NAAQS 

which satisfies the requirements of 

section 110(a)(2) within 3 years of 

promulgation of such standard, or 

shorter period as EPA may provide. The 

CAA provides for states and tribes to 

develop plans to regulate emissions of 

air pollutants within their jurisdictions. 

The regulations clarify the statutory 

obligations of states and tribes that 

develop plans to implement this rule. 

The Tribal Authority Rule (TAR) gives 

tribes the opportunity to develop and 

implement CAA programs, but it leaves 

to the discretion of the tribe whether to 

develop these programs and which 

programs, or appropriate elements of a 

program, the tribe will adopt. 

This action does not have tribal 

implications as defined by Executive 

Order 13175. It does not have a 

substantial direct effect on one or more 

Indian tribes, because no tribe has 

implemented an air quality management 

program related to the 2006 24-hour 

PM2.5 NAAQS at this time. Furthermore, 

this action does not affect the 

relationship or distribution of power 

and responsibilities between the federal 

government and Indian tribes. The CAA 

and the TAR establish the relationship 

of the federal government and Tribes in 

developing plans to attain the NAAQS, 

and this action does nothing to modify 

that relationship. Because this action 

does not have tribal implications, 

Executive Order 13175 does not apply. 

H. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

This action is not subject to EO 13045 

(62 FR 19885, April 23, 1997) because 

it is not economically significant as 

defined in EO 12866, and because the 

Agency does not believe the 

environmental health or safety risks 

addressed by this action present a 

disproportionate risk to children. 

Nonetheless, we have evaluated the 

environmental health or safety effects of 

the 2006 24-hour PM2.5 NAAQS on 

children. The results of this risk 

assessment are contained in the final 

rule for 24-hour PM2.5 NAAQS (71 FR 

61144, October 17, 2006). 

I. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)), because it is not a significant 

regulatory action under Executive Order 

12866. 

J. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law No. 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

This action does not involve technical 

standards. Therefore, EPA did not 

consider the use of any voluntary 

consensus standards. 

K. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order (EO) 12898 (59 FR 

7629 (Feb. 16, 1994)) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA lacks the discretionary authority 

to address environmental justice in this 

final action. This action responds to the 

requirement in the CAA for states to 

submit SIPs to satisfy the requirements 

of section 110(a)(2)(D)(i)(I) of the CAA 

for the 2006 24-hour PM2.5 NAAQS. 

Section 110(a)(1) of the CAA requires 

that states submit SIPs that implement, 

maintain, and enforce a new or revised 

NAAQS which satisfies the 

requirements of section 110(a)(2) within 

3 years of promulgation of such 

standard, or shorter period as EPA may 

provide. EPA is merely determining 

whether states have complied with this 

statutory requirement. 

L. Congressional Review Act 

The Congressional Review Act (CRA), 

5 U.S.C. 801 et seq., as added by the 

Small Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. Section 808 allows 

the issuing agency to make a rule 

effective sooner than otherwise 

provided by the CRA if the agency 

makes a good cause finding that notice 

and public procedure is impracticable, 

unnecessary or contrary to the public 

interest. This determination must be 

supported by a brief statement. 5 U.S.C. 

808(2). As stated previously, EPA has 

made such a good cause finding, 

including the reasons therefore, and 

established an effective date of July 9, 

2010. EPA will submit a report 

containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the action 

in the Federal Register. This action is 

not a ‘‘major rule’’ as defined by 5 U.S.C. 

808(2). 

M. Judicial Review 

Section 307(b)(1) of the CAA indicates 

which Federal Courts of Appeal have 

venue for petitions of review of final 

actions by EPA. This section provides, 

in part, that petitions for review must be 

filed in the Court of Appeals for the 

District of Columbia Circuit: (i) When 

the EPA action consists of ‘‘nationally 

applicable regulations promulgated, or 


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final actions taken, by the 

Administrator,’’ or (ii) when such action 

is locally or regionally applicable, if 

‘‘such action is based on a determination 

of nationwide scope or effect and if in 

taking such action the Administrator 

finds and publishes that such action is 

based on such a determination.’’ 

This action making a finding of failure 

to submit SIPs related to the section 

110(a)(2)(D)(i)(I) requirements for the 

2006 24-hour PM2.5 NAAQS is 

‘‘nationally applicable’’ within the 

meaning of section 307(b)(1). 

For the same reasons, the 

Administrator also is determining that 

the requirements related to these finding 

of failure to submit SIPs related to the 

section 110(a)(2)(D)(i)(I) requirement is 

of nationwide scope and effect for the 

purposes of section 307(b)(1). This is 

particularly appropriate because in the 

report on the 1977 Amendments that 

revised section 307(b)(1) of the CAA, 

Congress noted that the Administrator’s 

determination that an action is of 

‘‘nationwide scope or effect’’ would be 

appropriate for any action that has 

‘‘scope or effect beyond a single judicial 

circuit.’’ H.R. Rep. No. 95–294 at 323, 

324, reprinted in 1977 U.S.C.C.A.N. 

1402–03. Here, the scope and effect of 

this rulemaking extends to numerous 

judicial circuits since the findings of 

failure to submit SIPs apply to all areas 

of the country. In these circumstances, 

section 307(b)(1) and its legislative 

history call for the Administrator to find 

the rule to be of ‘‘nationwide scope or 

effect’’ and for venue to be in the District 

of Columbia Circuit. 

Thus, any petitions for review of this 

action related to a findings of failure to 

submit SIPs related to the requirements 

of section 110(a)(2)(D)(i)(I) of the CAA 

must be filed in the Court of Appeals for 

the District of Columbia Circuit within 

60 days from the date final action is 

published in the Federal Register. 

List of Subjects in 40 CFR Part 52 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Incorporation by 

reference, Intergovernmental relations, 

Reporting and recordkeeping 

requirements. 

Dated: May 28, 2010. 

Gina McCarthy, 

Assistant Administrator, Office of Air and 

Radiation. 

[FR Doc. 2010–13457 Filed 6–8–10; 8:45 am] 

BILLING CODE 6560–50–P 

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. 

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; 


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