Federal Register / Vol. 76, No. 223 / Friday, November 18, 2011 / Rules and Regulations 71831 

in the clause prescription at FAR 

22.1705. (See PGI 222.1703.) 

[FR Doc. 2011–29426 Filed 11–17–11; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 211 and 225 

RIN 0750–AH22 

Defense Federal Acquisition 

Regulation Supplement: Fire-Resistant 

Fiber for Production of Military 

Uniforms (DFARS Case 2011–D021) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is adopting as final, with 

changes, an interim rule amending the 

Defense Federal Acquisition Regulation 

Supplement (DFARS) to implement the 

section of the National Defense 

Authorization Act for Fiscal Year 2011 

that prohibits specification of the use of 

fire-resistant rayon fiber in solicitations 

issued before January 1, 2015. 

DATES: Effective Date: November 18, 

2011. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Amy G. Williams, telephone 703–602– 

0328. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD published an interim rule in the 

Federal Register at 76 FR 32843 on June 

6, 2011, to implement section 821 of the 

National Defense Authorization Act for 

Fiscal Year 2011. Section 821 prohibits 

specification of the use of fire-resistant 

rayon fiber in solicitations issued before 

January 1, 2015. 

Ten respondents submitted public 

comments in response to the interim 

rule. Nine of the respondents 

(manufacturers, suppliers, or 

distributors of fire-resistant fibers, 

yarns, fabrics, or military uniforms) 

submitted comments that were 

essentially the same. 

II. Discussion and Analysis of the 

Public Comments 

DoD reviewed the public comments in 

the development of the final rule. A 

discussion of the comments and the 

changes made to the rule as a result of 

those comments are provided as 

follows: 

A. Implements Law as Written 

Comment: One respondent stated that 

the DFARS interim rule implements the 

statute as written. 

Response: Noted. 

B. Selection of Fire-Resistant Rayon 

Fiber 

Comment: Nine respondents stated 

that the law only requires that DoD 

solicitations prior to January 1, 2015, 

not specify the use of fire-resistant 

rayon fiber. The law does not restrict 

DoD’s selection and use of fabrics 

containing fire-resistant rayon fiber. The 

respondents recommended that the 

DFARS final rule make clear that the 

rule does not prohibit DoD from 

selecting fabrics that include fireresistant rayon fibers. 

Response: These responses have 

correctly stated the requirements of the 

law. The DFARS interim rule correctly 

reflected the statute. However, DoD has 

added clarification to the title and text 

of section 225.7016, that it is the 

requirement that is prohibited, not the 

voluntary offer and use. 

C. Specification of Other Fire-Resistant 

Fibers 

Comment: Nine respondents stated 

that the law is narrow in its application 

only to fire-resistant rayon fibers. 

According to the respondents, the law 

does not address DoD’s ability to specify 

inherently flame-resistant cellulosic 

fibers; this broader category includes 

any manmade cellulosic fiber that has 

fire resistance added to its slurry before 

fiber extrusion, such as acetate, rayon, 

lyocell, etc. The respondents 

recommended that the DFARS final rule 

make it clear that the prohibition 

applies only to DoD’s ability to specify 

the use of fire-resistant rayon fibers, and 

not to any other categories of fibers. 

Response: The DoD interim rule 

clearly reflected the statutory 

prohibition on requiring the use of fireresistant rayon fiber in a specification. 

However, it would be contrary to the 

intent of the statute to state the 

requirements of the solicitation in such 

a way as to exclude categories of fireresistant fiber (such as polymers) from 

consideration. 

D. Specification of Branded Products 

Comment: Eight respondents stated 

that the law does not restrict the 

specification of branded products. The 

respondents recommended that the 

DFARS rule not include any mention of 

branded commercial products. 

Response: The interim DFARS rule 

did not make any mention of branded 

commercial products. However, if a 

solicitation specifies the use of a 

branded commercial product that 

contains fire-resistant rayon fibers, then 

it would be in violation of the 

prohibition not to specify the use of fireresistant rayon fiber. 

E. Domestic Nonavailability 

Determinations (DNADs) or Waivers 

Comment: Nine respondents 

recommended that the DFARS rule 

should make clear that it does not 

prohibit DoD’s ability to source foreign 

fibers under its DNAD authority or a 

legislated waiver to the Berry 

Amendment. 

Response: There is nothing in the 

interim or final rule that would, in any 

way, affect DoD’s ability to source 

foreign fibers under its DNAD authority 

or a legislated waiver to the Berry 

Amendment. 

F. Inequity in the Treatment of Foreign 

Fibers 

Comment: Nine respondents stated 

that the law produces inequity in the 

treatment of foreign fibers that are 

specified by DoD and are purchased 

under DoD’s authority to waive the 

Berry Amendment. The respondents 

cited various foreign fibers, none of 

which are ‘‘restricted for specification.’’ 

Response: Noted. However, the 

DFARS rule must implement the statute 

as enacted. 

G. Impact on Small Business 

Comment: Nine respondents 

disagreed with the statement in the 

initial regulatory flexibility analysis that 

the impact on small businesses will be 

minimal. The respondents cited two 

points on which they disagree with the 

analysis: 

1. According to the respondents, 

Nomex is not a substitute for fireresistant rayon fiber for the manufacture 

of all types of military uniforms. The 

respondents stated that Nomex is 

widely used in flight suits, but not in 

ground troop uniforms, unless used 

with cotton. Cotton requires topical fire 

resistant treatment, which is not 

permanent for the life of the fiber. 

According to the respondents, the 

alternatives to the use of fire-resistant 

rayon are ‘‘next best’’ as a permanent 

fire-resistant solution in hot and humid 

environments and are also more 

expensive. 

2. Dozens of small businesses 

currently supply DoD with uniforms 

made using fire-resistant rayon fibers. 

The impact on small business can be 

significant if designing new products 

and producing existing programs 

becomes restrained by availability of 

raw materials. 


jlentini on DSK4TPTVN1PROD with RULES3
71832 Federal Register / Vol. 76, No. 223 / Friday, November 18, 2011 / Rules and Regulations 

Response: Although small businesses 

may be involved in providing military 

uniforms using fire-resistant rayon 

fibers, there is nothing in this rule that 

prohibits the use of fire-resistant rayon 

fibers. If fire-resistant rayon is as 

superior to the alternative fire-resistant 

fibers as stated by the respondents, then 

competition from alternative fibers 

should have little impact on small 

business because there will likely be 

small businesses engaged in the 

manufacture of the military uniforms 

containing an alternative fiber. 

Furthermore, there is nothing in this 

final rule that would restrain the 

availability of raw materials. See also 

section V of this Federal Register 

notice. 

H. End of Statutory Restriction 

Comment: One respondent expressed 

concern over what will happen when 

the statutory restriction ends in January 

2015. The respondent requested a dialog 

regarding extension of this date, as the 

date does not seem relevant to the 

ability of the military textile industrial 

base to meet DoD demand for flameresistant protective apparel products. 

Furthermore, the respondent noted that 

performance-based specifications are 

already required to the maximum extent 

possible pursuant to FAR section 

11.002(a)(2)(i)(A)–(B). 

Response: This comment is outside 

the scope of this case, which is for the 

purpose of implementing the existing 

statute. 

I. Continued Collaboration 

Comment: All respondents 

recommended continued collaboration 

with DoD. One respondent stated that 

DoD should continue to pursue 

strategies to create continuous 

collaboration between industry and the 

acquiring service/agencies. According to 

the respondent, DoD should also ensure 

that all expertise available within the 

Program Executive Office, as well as the 

RDT&E commands, is incorporated into 

the drafting of purchase descriptions to 

avoid over reliance on industry partners 

for the drafting of purchase 

descriptions. The other respondents 

stated that clarifying and simplifying 

the DFARS rule will result in greater 

collaboration and investment on behalf 

of the needs of the U.S. military. 

Response: Noted. 

III. Other Changes 

Comment: One DoD respondent 

recommended that the coverage should 

be moved from part 225 (Foreign 

Acquisition) to part 211 (Describing 

Agency Needs). 

Response: Because of the implication 

of the rule for foreign acquisition and 

the inter-relationship with the Berry 

Amendment and the DNAD and 

statutory waiver authority for rayon 

fiber, DoD has decided to retain the 

coverage in part 225. However, a cross 

reference has been added in part 211. 

IV. Executive Orders 12866 and 13563 

Executive Orders (E.O.s) 12866 and 

13563 direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This is not a significant 

regulatory action and, therefore, was not 

subject to review under section 6(b) of 

E.O. 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

rule is not a major rule under 5 U.S.C. 

804. 

V. Regulatory Flexibility Act 

A final regulatory flexibility analysis 

has been prepared consistent with the 

Regulatory Flexibility Act, 5 U.S.C. 601, 

et seq., and is summarized as follows: 

The need for this rule is to implement 

section 821 of the National Defense 

Authorization Act for Fiscal Year 2011 

(Pub. L. 111–383). Section 821 prohibits 

specification of the use of fire-resistant 

rayon fiber in solicitations issued before 

January 1, 2015. 

The objectives of this rule are to 

prohibit specification of the use of fireresistant rayon fiber in solicitations 

issued before January 1, 2015, as 

required by the statute. This will 

provide opportunity for offerors to 

propose alternative solutions to meet 

DoD requirements. 

The legal basis for this rule is section 

821 of the National Defense 

Authorization Act for Fiscal Year 2011 

(Pub. L. 111–383). 

Nine respondents disagreed with the 

statement in the initial regulatory 

flexibility analysis that the impact on 

small businesses will be minimal. The 

respondents cited two points on which 

they disagree with the analysis: 

According to the respondents, Nomex 

is not a substitute for fire-resistant rayon 

fiber for the manufacture of all types of 

military uniforms. The respondents 

stated that Nomex is widely used in 

flight suits, but not in ground troop 

uniforms, unless used with cotton. 

Cotton requires topical fire resistant 

treatment, which is not permanent for 

the life of the fiber. According to the 

respondents, the alternatives to the use 

of fire-resistant rayon are ‘‘next best’’ as 

a permanent fire-resistant solution in 

hot and humid environments and are 

also more expensive. 

The respondents stated further that 

dozens of small businesses currently 

supply DoD with uniforms made using 

fire-resistant rayon fibers. The impact 

on small business can be significant if 

designing new products and producing 

existing programs becomes restrained by 

availability of raw materials. 

Although small businesses may be 

involved in providing military uniforms 

using fire-resistant rayon fibers, there is 

nothing in this rule that prohibits the 

use of fire-resistant rayon fibers. If fireresistant rayon is as superior to the 

alternative fire-resistant fibers as stated 

by the respondents, then competition 

from alternative fibers should have little 

impact on small business because there 

will likely be small businesses engaged 

in the manufacture of the military 

uniforms containing an alternative fiber. 

Furthermore, there is nothing in this 

final rule that would restrain the 

availability of raw materials. 

The two major sources of fire-resistant 

fiber used in DoD products either come 

from DuPont (product called Nomex) or 

The Lenzing Group, Austria (product 

called Fire Resistant Rayon). In order to 

manufacture a fire-resistant uniform 

currently being sourced by the services, 

three products are blended together to 

meet desired cost, availability, and 

performance criteria: 

• Nylon. 

• Para-aramid (Kevlar by DuPont or 

Twaron by Teijin (The Netherlands)). 

• Either Nomex (DuPont) or Fire 

Resistant Rayon (Lenzing). 

DuPont is a domestic large business 

and the other manufacturers of fireresistant fiber are foreign. However, 

small businesses are involved in the 

supply of the military uniforms that 

utilize the foreign fire-resistant rayon. 

There were no comments filed by the 

Chief Counsel for Advocacy of the Small 

Business Administration in response to 

the rule. 

There are no reporting or 

recordkeeping requirements. 

The requirements of the rule are the 

minimum requirements necessary to 

meet the requirements of the statute. 

Although small businesses are involved 

in manufacture of the uniforms, there is 

nothing in this rule that prohibits the 

continued acquisition of military 

uniforms containing fire-resistant rayon 

fiber or that would hinder acquisition of 

that fire-resistant fiber from Austria. 

Further, if another type of fire-resistant 


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Federal Register / Vol. 76, No. 223 / Friday, November 18, 2011 / Rules and Regulations 71833 

fiber is competitively selected (such as 

Nomex from DuPont), there will 

probably still be small businesses 

engaged in the manufacture of the 

military uniforms containing that fiber. 

VI. Paperwork Reduction Act 

The rule does not contain any 

information collection requirements that 

require the approval of the Office of 

Management and Budget under the 

Paperwork Reduction Act (44 U.S.C. 

chapter 35). 

List of Subjects in 48 CFR Parts 211 and 

225 

Government procurement. 

Ynette R. Shelkin, 

Editor, Defense Acquisition Regulations 

System. 

Accordingly, the interim rule 

amending 48 CFR parts 211 and 225, 

which was published at 76 FR 32843 on 

June 6, 2011, is adopted as a final rule 

with the following changes: 

■ 1. The authority citation for 48 CFR 

parts 211 and 225 continues to read as 

follows: 

Authority: 41 U.S.C. 1303 and 48 CFR 

chapter 1. 

PART 211—DESCRIBING AGENCY 

NEEDS 

■ 2. Add section 211.170 to read as 

follows: 

211.170 Requiring the use of fire-resistant 

rayon fiber. 

See 225.7016 for the statutory 

prohibition on requiring the use of fireresistant rayon fiber. 

PART 225—FOREIGN ACQUISITION 

■ 3. Revise section 225.7016 to read as 

follows: 

225.7016 Prohibition on requiring the use 

of fire-resistant rayon fiber. 

In accordance with section 821 of the 

National Defense Authorization Act for 

Fiscal Year 2011, do not include in any 

solicitation issued before January 1, 

2015, a requirement that proposals 

submitted pursuant to such solicitation 

shall include the use of fire-resistant 

rayon fiber. However, this does not 

preclude issuing a solicitation that 

allows offerors to propose the use of 

fire-resistant rayon fiber. 

[FR Doc. 2011–29428 Filed 11–17–11; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 202 and 218 

RIN 0750–AH29 

Defense Federal Acquisition 

Regulation Supplement: Simplified 

Acquisition Threshold for 

Humanitarian or Peacekeeping 

Operations (DFARS Case 2011–D032) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is adopting as final, 

without change, an interim rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to implement the statutory 

authority to invoke a simplified 

acquisition threshold that is two times 

the normal amount to support a 

humanitarian or peacekeeping 

operation. 

DATES: Effective Date: November 18, 

2011. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Meredith Murphy, telephone 703–602– 

1302. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD published an interim rule in the 

Federal Register at 76 FR 44280 on July 

25, 2011, to amend the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to implement the authority at 

10 U.S.C. 2302(7) to invoke a simplified 

acquisition threshold that is two times 

the amount specified at 41 U.S.C 134, as 

amended by section 807 of the National 

Defense Authorization Act for Fiscal 

Year 2005, for the purpose of supporting 

a humanitarian or peacekeeping 

operation. The current simplified 

acquisition threshold is $150,000, as 

specified in Federal Acquisition 

Regulation 2.101. No respondents 

submitted public comments in response 

to the interim rule. 

II. Executive Orders 12866 and 13563 

Executive Orders (E.O.s) 12866 and 

13563 direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This is not a significant 

regulatory action and, therefore, was not 

subject to review under section 6(b) of 

E.O. 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

rule is not a major rule under 5 U.S.C. 

804. 

III. Regulatory Flexibility Act 

DoD certifies that this final rule will 

not have a significant economic impact 

on a substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act, 5 U.S.C. 601, et seq., 

because the rule does not impose any 

requirements on small businesses. The 

statute applies only to purchases made 

outside the United States and only to 

those purchases that directly support a 

humanitarian or peacekeeping 

operation. For the definition of ‘‘small 

business,’’ the Regulatory Flexibility Act 

refers to the Small Business Act, which 

in turn allows the U.S. Small Business 

Administration (SBA) Administrator to 

specify detailed definitions or standards 

(5 U.S.C. 601(3) and 15 U.S.C. 632(a)). 

The SBA regulations at 13 CFR 121.105 

discuss who is a small business: ‘‘(a)(1) 

Except for small agricultural 

cooperatives, a business concern eligible 

for assistance from SBA as a small 

business is a business entity organized 

for profit, with a place of business 

located in the United States, and which 

operates primarily within the United 

States or which makes a significant 

contribution to the U.S. economy 

through payment of taxes or use of 

American products, materials or labor.’’ 

IV. Paperwork Reduction Act 

The rule does not contain any 

information collection requirements that 

require the approval of the Office of 

Management and Budget under the 

Paperwork Reduction Act (44 U.S.C. 

chapter 35). 

List of Subjects in 48 CFR Parts 202 and 

218 

Government procurement. 

Ynette R. Shelkin, 

Editor, Defense Acquisition Regulations 

System. 

Interim Rule Adopted as Final Without 

Change 

■ Accordingly, the interim rule 

amending 48 CFR parts 202 and 218, 

which was published at 76 FR 44280 on 

July 25, 2011, is adopted as a final rule 

without change. 

[FR Doc. 2011–29433 Filed 11–17–11; 8:45 am] 

BILLING CODE 5001–06–P 


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