32676 Federal Register / Vol. 75, No. 110 / Wednesday, June 9, 2010 / Rules and Regulations 

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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• Do not list Mexico, Canada or Chile 

in the HSAR; let individual contracting 

officers determine for themselves which 

countries have international agreements 

that impact individual procurements; 

• Mirror the Department of Defense 

implementation of the Berry 

Amendment. 

These comments and others are 

described below along with discussion 

of DHS’s consideration and disposition 

of all comments to the interim rule. 

Comment on Post-award De Minimis 

Authority—Commenters suggested that 

the interim rule’s de minimis exception 

in section 604(d) should be interpreted 

as post-procurement authority. These 

commenters observed that the manner 

in which this section was developed 

suggests that the Secretary has latitude 

to override section 604’s fiber sourcing 

requirement when non-compliant fibers 

have been incorporated in a product in 

an otherwise compliant, completed 

procurement. Commenters observed that 

Congress is silent on this issue and that 

such silence provides the Secretary of 

Homeland Security the option to accept 

delivery of an item produced with fiber 

out of compliance with the Act’s U.S. 

domestic procurement mandate, in 

instances where the non-compliant fiber 

in question does not exceed 10% of the 

value of the delivered product. 

DHS response to the comment. Do not 

concur. The statute addresses delivery 

of noncompliant items as follows: (d) De 

Minimis Exception—Notwithstanding 

subsection (a), the Secretary of 

Homeland Security may accept delivery 

of an item covered by subsection (b) that 

contains non-compliant fibers if the 

total value of non-compliant fibers 

contained in the end item does not 

exceed 10 percent of the total purchase 

price of the end item. This subsection of 

section 604 provides authority to the 

Department that can be implemented 

either pre-award (as addressed in the 

interim rule) or post-award (as the 

commenters recommended). DHS 

determined that it would be highly 

impractical to implement a post-award 

exception for homeland security 

procurements. Items containing de 

minimis amounts of non-compliant 

materials could be rejected after they 

were delivered. A contractor would not 

know in advance if such an exception 

would or would not be granted. Facing 

this risk, planning flexibility available 

to DHS contractors would be 

substantially reduced. DHS determined 

that the best way to communicate its 

intentions under this authority was to 

grant the approval for all de minimis 

content items in advance within the 

regulation. By following this path, DHS 

gives its potential contractors the 

advantage of certainty and the 

information necessary for them to make 

the most advantageous offer possible to 

the government, without the risk that 

delivery might be rejected for inclusion 

of de minimis amounts after the 

contractor’s proposal was accepted and 

the resulting contract was awarded. 

Further, given the authority in 

subsection (d), and its characterization 

as a de minimis exception, DHS finds it 

hard to envision a circumstance in 

which a delivery containing de minimis 

amounts of non-compliant materials 

could be rejected in a principled way. 

Accordingly, advance approval of such 

deliveries is the best approach for 

compliance with section 604, subsection 

(d), under the regulation. 

Comment on National Security 

Interests—Commenters argued that DHS 

has adopted an unnecessarily restrictive 

definition of items ‘‘directly related to 

national security interests’’ for purposes 

of applying the Kissell Amendment. The 

commenters further suggested that it 

appears that the interim rule intends to 

unnecessarily exclude certain textile 

products from operation of the Kissell 

Amendment. According to the 

commenters, the Kissell Amendment 

was intended to be an extension of the 

Berry Amendment to DHS. By creating 

a new definition for purposes of 

applying this amendment, the 

commenters argued that DHS is 

undermining the intent of Congress and 

creating unnecessary complications in 

the procurement process. The current 

rules governing the Berry Amendment 

apply to all goods at the Department of 

Defense (DoD), except in certain limited 

instances. Within that spirit, the 

commenters believe that the final rule 

should not deviate in any manner from 

the original intent of Congress. 

DHS response to the comment. Do not 

concur. Section 604 has certain 

language in common with the Berry 

Amendment (10 U.S.C. 2533a), but its 

language is by no means identical, nor 

even varied solely to import the 

requirements of the Berry Amendment 

to a non-DoD agency. As such, section 

604 is not ‘‘an extension’’ of the Berry 

Amendment to DHS. Section 604 is an 

independent statutory requirement. If 

the requirements of section 604 were 

meant to apply to all DHS acquisitions, 

the qualifying and limiting language of 

section 604 (i.e. that the covered item be 

‘‘directly related to national security 

interests’’) would be unnecessary. Given 

that these limits in scope are included 

in the plain language of section 604, 

DHS has no choice but to honor them. 

DHS considered, but rejected, an 

interpretation under which all DHS 

acquisitions of covered textile items 

would be considered to be ‘‘directly 

related to the national security interests 

of the United States’’ because it would 

have rendered those words a nullity. 

DHS cannot interpret the presence of 

these limiting words as having no 

meaning or effect. Because section 604 

did not define this expression, DHS was 

obliged to define it reasonably, which is 

explained in the preamble to the interim 

rule. 

Comment on NAFTA and U.S.-Chile 

Free Trade Agreement—Commenters 

observed that the interim rule 

specifically identifies items from Free 

Trade Agreement (FTA) partners 

Mexico, Canada, and Chile as eligible 

for procurement benefits, 

notwithstanding the basic provisions of 

the Kissell Amendment. The 

commenters also said that after the 

enactment of the Kissell Amendment, it 

was learned that the U.S. Trade 

Representative did not properly notify 

FTA partners Mexico, Canada, and 

Chile that DHS agencies could fall 

under stricter procurement rules for 

national security purposes. The 

commenters pointed out that under the 

rules of the FTAs and international 

procurement agreements, proper 

notification is required. The 

commenters objected to the specific 

mention in the interim rule of these 

countries by name. In the event that the 

Office of the United States Trade 

Representative (USTR) were to establish 

a new understanding with these three 

countries, the commenters argued that 

DHS will have to issue new regulations, 

complete with a public comment period 

in order to properly remove the 

countries from the rule. The 

commenters observed that this will 

cause further delay and negatively 

impact the ability to seek the full benefit 

of the Kissell Amendment. 

DHS response to the comment. Do not 

concur. The regulation, which among 

other purposes functions as guidance for 

DHS contracting officers, must convey 

what requirements apply to items that 

may or may not be covered by the 

requirements of section 604. Deletion of 

the named countries would complicate 

understanding of the rule under legal 

requirements that exist today, and 

would further require each individual 

contracting officer to determine the 

applicability of section 604 in the event 

items are offered that originate in any of 

the three listed countries. The 

agreements with these countries were 

identified specifically only because they 

exist as exceptions to the Transportation 

Security Administration’s (TSA) 

exclusion from coverage under 

international agreements. If, in the 

future, TSA were excluded from these 


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agreements, the Department will amend 

these rules, as appropriate. 

Comment on Adoption of the Defense 

Federal Acquisition Regulation 

Supplement (DFARS)—Commenters 

stated they are concerned with the 

interim rule unnecessarily plowing new 

ground with its definition of ‘‘Item 

directly related to national security 

interests’’ in Subpart 3025.7001(e)(5) 

and the inclusion of that phrase as an 

exception in Subpart 3025.7002–2(b). 

The commenters argue that this 

language will greatly complicate the 

ability of contractors and government 

procurement officers to implement and 

comply with the new rule due to its 

uncertainty of meaning and the lack of 

precedent in administering the language 

at issue. A simpler and more reasonable 

approach, the commenters argue, would 

be for DHS to eliminate Subpart 

3025.7001(e) and to replace Subpart 

3025.7002–2(b) with regulatory 

language contained in 48 CFR 

225.7002.2(m) and (n), and adhere to its 

accompanying guidance and precedents. 

DHS response to the comment. Do not 

concur. The commenters suggest that 

the DHS regulation adopt regulatory 

language developed and promulgated by 

the DoD to comply with the ‘‘Berry 

Amendment.’’ DHS cannot do so 

credibly. The statutory requirements 

applicable to DoD do not include any 

requirement that covered items must be 

‘‘directly related to the national security 

interests of the United States.’’ If there 

were such a statutory requirement 

applicable to DoD, DHS might be able to 

look to DoD regulatory requirements as 

a guide in that area, but no such 

requirement exists. 

Comment on Possible Modifications of 

International Agreements—Commenters 

noted that the Office of the U.S. Trade 

Representative is actively seeking to 

make technical corrections to the North 

American Free Trade Agreement 

(NAFTA) and the U.S.-Chile Free Trade 

Agreement with respect to the coverage 

of the government procurement 

provisions of those agreements to TSA. 

The commenters object to the language 

of Subpart 3025.7002–3(a)(3) affecting 

TSA as drafted. Specifically, the 

commenters object to the inclusion of 

the following language, ‘‘* * * except 

those from Mexico, Canada or Chile 

because TSA is listed as a covered 

governmental entity in the North 

American Free Trade Agreement 

(NAFTA) and the U.S.-Chile Free Trade 

Agreement * * *’’ 

DHS response to the comment. Do not 

concur. This guidance is necessary in 

order to ensure complete coverage of the 

statute and timely guidance to DHS 

contracting officers and the public. If in 

the future, TSA were excluded from 

these agreements, DHS will amend these 

rules, as appropriate. 

Comment on Individual Contracts 

verses HSAR Coverage Regarding 

International Agreements—Commenters 

suggested that the interim rule at HSAR 

3025.7002–3(a)(3) not list Mexico, 

Canada and Chile as countries from 

which items offered under TSA 

solicitations and contracts would be 

exempt from the procurement 

restrictions because of U.S. obligations 

under NAFTA and the U.S.-Chile FTA. 

In place of listing these countries in the 

HSAR, the commenters suggest that 

individual solicitations and contracts 

list these countries. They say that 

Mexico, Canada, and Chile should be 

listed in individual contract 

solicitations as countries with whom the 

United States has a trade agreement 

where TSA is listed as covered 

governmental entity and thus (HSAR) 48 

CFR 3025.7002 will not apply. 

DHS response to the comment. Do not 

concur. The commenter suggests that 

individual solicitations list these 

countries rather than listing the 

countries in the HSAR clause. Such an 

individual listing in each covered 

solicitation would be impractical. For 

individual contracting officers to list 

each covered country in each 

solicitation, each contracting officer 

would need to know they are required 

to include such a list, and it would 

require each contracting officer to know 

which countries to list. Further, the 

public would not be given the 

opportunity to review or comment on 

these contract terms that would appear 

in multiple solicitations and contracts. 

The only practical way to disseminate 

such knowledge to the public and to 

contracting officers is to include it in 

the HSAR, which DHS has done. 

Comment Regarding International 

Agreements—Commenters urge DHS to 

write a final rule in a way that it will 

not need to be rewritten if in the future, 

TSA were to be excluded from trade 

agreements covering Mexico, Canada, 

and Chile. 

DHS response to the comment. Do not 

concur. This regulation is written in this 

way to give complete and current 

coverage of the statute to the public and 

guidance to DHS contracting officers. If 

in the future, TSA were to be excluded 

from these international agreements, 

DHS will amend these rules, as 

appropriate. 

Comment on Mirroring DFARS— 

Commenters contend that this rule 

needs to mirror the DoD Berry 

Amendment regulations as closely as 

possible and that they certainly do not 

need to refer to two different sets of 

regulations. 

DHS response to the comment. 

Generally concur. However, the rule 

must comply with, and independently 

implement, its own statutory language 

and requirements, which are not the 

same as the DoD Berry Amendment. 

Comment on Mirroring Berry 

Amendment—Commenters observed 

that in pursuing the enactment of the 

Recovery Act the Administration and 

Congress distinguished that the express 

purpose of this legislation was to 

stimulate the U.S. economy by creating 

jobs and encouraging investment. 

Specifically, they observe that the 

Kissell Amendment and the 

accompanying floor debate clearly 

outline that the intent of this 

Amendment is to bring the procurement 

practices of DHS in line with those of 

the Berry Amendment as applied to the 

DoD. As a major supplier of inputs for 

DoD textile and apparel products, a 

commenter believes it is essential that, 

subject to its respective statutory 

language, the Kissell Amendment 

implementing regulations mirror the 

DoD rules governing the Berry 

Amendment to ensure the ability of 

contractors and government 

procurement officers to implement and 

comply with the new rule. As currently 

drafted, commenters advise that they are 

concerned that the interim rule creates 

unnecessary uncertainty with its 

definition of ‘‘Item directly related to 

national security interests’’ in Subpart 

3025.7001(e) and the inclusion of that 

term as an exception in Subpart 

3025.7002–2(b). 

DHS response to the comment. 

Concur in part. Section 604 has 

language in common with the Berry 

Amendment, but its language is by no 

means identical, nor even varied solely 

to import the requirements of the Berry 

Amendment to a non-DOD agency. As 

such, section 604 is not ‘‘an extension’’ 

of the Berry Amendment to DHS per se. 

The limitation of section 604’s 

application to items ‘‘directly related to 

national security’’ is pursuant to express 

statutory language. Section 604 is an 

independent statutory requirement. If 

the requirements of section 604 were 

meant to apply to all DHS acquisitions, 

the qualifying and limiting language of 

section 604 (i.e., that the covered item 

be ‘‘directly related to national security 

interests’’) would be unnecessary. Given 

that these limits in scope are included 

in the plain language of section 604, 

DHS has no choice but to honor them. 

DHS considered, but rejected, an 

interpretation under which all DHS 

acquisitions of covered textile items 

would be considered to be ‘‘directly 


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related to the national security interests 

of the United States’’ because it would 

have rendered those words a nullity. 

DHS cannot interpret the presence of 

these limiting words as having no 

meaning or effect. Because section 604 

did not define this expression, DHS was 

obliged to define it reasonably, which 

was explained in the preamble to the 

interim rule. The first and best evidence 

of both Congressional intent and 

Executive assent is the plain language of 

the statute. DHS has endeavored to use 

the legislative history, where 

appropriate, to inform a definition that 

is consistent with both the plain 

meaning of the expression and its usage 

in this statute. 

Comment on ‘‘Component’’ 

Definition—Section 3025.7001(b) 

defines ‘‘component’’ as ‘‘any item 

supplied to the Government as part of 

an end product or of another 

component.’’ A commenter argues that, 

in a global supply chain, this is an 

overly burdensome requirement, as it 

potentially requires suppliers to 

reestablish content down many layers of 

components. The commenter 

recommends that this definition be 

modified as follows: (b) ‘‘Component’’ 

means any article, material or supply 

incorporated directly into an end 

product. 

The commenter explained that this 

definition establishes a component as an 

item ‘‘one off’’ from the finished good, 

and is a practicable and feasible 

requirement both for the supplier to 

meet and DHS to administer. The 

commenter understands that the 

definition in the interim rule is 

consistent with Federal procurement 

regulations and 41 U.S.C. 403, but 

because this term is not defined in the 

Act, the commenter requests DHS 

flexibility in changing this definition. 

DHS response to the comment. Do not 

concur. The definition of ‘‘Component’’ 

also appears in DFARS clause 252.225– 

7012 (Preference for certain domestic 

commodities) and other clauses 

concerning restrictions of procurements 

to domestic products. Where consistent 

with the statutory language of section 

604 and otherwise feasible, DHS has 

attempted to harmonize the treatment of 

textile items under section 604, the 

Berry Amendment, and more generally 

articulated procurement definitions. 

Comment on Definition of 

‘‘produced’’—A commenter notes that in 

section 3025.7002–1, DHS will not 

acquire any national security product or 

component that ‘‘has not been grown, 

reprocessed, reused or produced in the 

United States.’’ The commenter requests 

that DHS provide clear, plain English 

definitions of the terms ‘‘reprocessed,’’ 

‘‘reused,’’ and ‘‘produced’’ as they relate 

to the interim rule. 

DHS response to the comment. Do not 

concur. This phrase is straight from 

section 604, paragraph (a). Additionally, 

these terms are the same terms used in 

the DFARS implementation of the Berry 

Amendment restrictions on clothing and 

fabrics. Neither section 604 nor the 

DFARS define these terms; their 

meaning is plain enough to support 

application of the statute. 

Comment on Definition of ‘‘protective 

equipment’’—A commenter noted that 

in section 3025.7002–1(a)(2), there is a 

reference to ‘‘protective equipment (such 

as body armor).’’ The commenter 

contends that there are numerous types 

of protective equipment that may be 

subject to this regulation and requests 

that DHS clarify its intent with a 

definition of ‘‘protective equipment,’’ as 

this term relates to the interim rule. 

DHS response to the comment. Do not 

concur. This term is used in the statute 

and the Federal Acquisition Regulation 

without definition and is a readily 

understood term that does not require a 

definition. 

Comment on Intent of ‘‘individual 

equipment’’—A commenter points out 

in section 3025–7002–1(b)(7), there is a 

reference to ‘‘individual equipment 

manufactured from or containing any of 

the fibers, yarns, fabrics, or materials 

listed in this paragraph (b).’’ While the 

commenter recognizes that this language 

is taken from the Kissell Amendment, it 

is unclear to the commenter what type 

of equipment, other than those 

categories enumerated in paragraph (a), 

would be categorized as ‘‘individual 

equipment.’’ For example, the 

commenter observes that the DoD 

Federal Supply Classification 8465 for 

‘‘individual equipment’’ lists many of 

the same items listed in paragraph (a). 

The commenter requests that DHS 

clarify its intent with a definition of 

‘‘individual equipment,’’ as this term 

relates to the interim rule. 

DHS response to the comment. Do not 

concur. The term ‘‘individual 

equipment’’ is not a category of specific 

items as listed in the Federal Supply 

Classes (FSC’s), but, rather, it is a 

descriptive phrase. The phrase 

‘‘individual equipment’’ could have been 

defined in section 604 to be limited to 

the FSC category 8465, Individual 

Equipment, but there is no indication in 

the section or its history that this 

category of covered items was intended 

to be limited only to FSC 8465. 

Accordingly, DHS intends to rely on the 

plain meaning of the phrase and will 

not limit it or define it further in this 

final rule. 

Comment on Dual Use Safety 

Equipment—A commenter asks DHS to 

clarify whether the interim rule covers 

items acquired by the Department to 

protect DHS employees from exposure 

to recognized occupational health and 

safety hazards while these individuals 

are engaged in protecting the nation’s 

borders, transportation system, maritime 

domain or critical infrastructure. The 

commenter suggests that one example 

might be high visibility safety apparel 

worn by those DHS employees in TSA 

or U.S. Customs and Border Protection 

(CBP), who work near moving vehicles 

and need to be highly visible to avoid 

being struck. Even though the workers 

are engaged in activities crucial to 

national security, the commenter states 

its belief that the Department does not 

intend that such dual-use protective 

equipment would fall under the 

‘‘national security interests’’ definition 

of the rule. 

DHS response to the comment. Do not 

concur. The HSAR definition of 

‘‘directly related to the national security 

interests of the United States’’ is 

intended to be interpreted by DHS 

officials knowledgeable of individual 

items and individual acquisitions in a 

multitude of circumstances. DHS 

declines the invitation to determine in 

advance, divorced from context, and in 

a more detailed fashion than it has 

already, which items and which 

acquisitions are or are not likely to be 

covered. 

Comment on Applicability to Grants— 

A commenter asks that DHS clarify that 

the interim rule does not apply to grant 

programs, such as the Assistance to 

Firefighters Grant Program, the Urban 

Area Security Initiative or the State 

Homeland Security Grant Program. The 

commenter believes the interim rule 

does not apply to DHS grant programs 

because it regulates Departmental 

acquisitions. The commenter also points 

out that DHS also notes that 

congressional floor remarks indicate this 

provision ‘‘as principally pertaining to 

border and transportation security 

***,’’ while grant programs provide 

funds for state and local emergency 

response. Moreover, neither the HSAR 

nor the Homeland Security Acquisition 

Manual refers to grantees. 

DHS response to the comment. To the 

extent that the commenter requests the 

HSAR implementation to affirmatively 

state that the section only applies to 

procurements, DHS declines the 

invitation. The HSAR applies only to 

contracts and does not apply to grants. 

There is no need to repeat in this rule 

that the HSAR is applicable only to 

contracts, nor is the HSAR an 


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appropriate place to determine grant 

policy or regulation. 

Comment on Transition Period—Safe 

Harbor/Domestic Non-Availability 

Determination Request Period—Related 

to Section 3025.7002–2(c). A commenter 

asks DHS to establish a period during 

which DHS vendors may come into 

compliance with the interim rule and/ 

or submit Domestic Non-Availability 

Determination (DNAD) requests. 

DHS response to the comment. Do not 

concur. There is no authority in section 

604 to extend or delay the period during 

which section 604 is effective. 

Comment on Posting Training 

Material—A commenter urges DHS to 

make publicly available any guidance 

and training documents provided to 

contracting officers who will implement 

this interim rule. The commenter 

suggests that making such guidance and 

training documents publicly available 

will allow vendors and contracting 

officers to communicate with each other 

clearly and effectively about DHS 

procurements covered by this interim 

rule. Public availability is also argued to 

allow the vendor community to know 

what is expected of them and their 

products in advance of proposal 

submissions and final procurement 

decisions. The commenter states that 

clear, plain English guidance would be 

especially helpful for compliance with 

section 3025.7002–3 ‘‘Specific 

application of trade agreements.’’ 

DHS response to the comment. 

Concur. Training slides will be posted, 

as permitted by law and DHS policy, on 

a publicly available Web site for 

viewing and use by the public. 

Comment on National Security—A 

commenter observes that DHS has 

adopted an unnecessarily restrictive 

definition of items ‘‘directly related to 

national security interests’’ for purposes 

of applying the Kissell Amendment. The 

commenter states that, furthermore, it 

appears that the interim rule intends to 

unnecessarily exclude certain textile 

products from operation of the Kissell 

Amendment. The commenter argues 

that the Kissell Amendment was 

intended to be an extension of the Berry 

Amendment to DHS and that, by 

creating a new definition for purposes of 

applying this amendment, DHS is 

undermining the intent of Congress and 

creating unnecessary complications in 

the procurement process. The 

commenter observes that the current 

rules governing the Berry Amendment 

apply to all goods at the DoD, except in 

certain limited instances. Within that 

spirit, the commenter believes that the 

final rule should not deviate in any 

manner from what the commenter 

argues is the original intent of Congress. 

DHS response to the comment. Do not 

concur. The current Berry Amendment 

is not restricted in application to textile 

‘‘items directly related to national 

security.’’ DHS is not at liberty to ignore 

the plain language of a statute, which is 

the best evidence of congressional intent 

and, in this case, of the language to 

which the President assented. The 

Department believes that it came to the 

most accurate interpretation of this 

language in relation to the intent of 

Congress given the legislative record. 

Comment on Normally Associated 

Components—A commenter argued that 

DHS should amend the HSAR so that 

components and materials normally 

associated with items listed in section 

604(b)(1)(B)–(D) are not covered under 

section 604 unless the components and 

materials are otherwise specifically 

enumerated as a covered item in section 

604. The commenter stated that, 

presumably, like the Berry Amendment, 

when an item is covered under section 

604, it will only be compliant when the 

manufacturing of that item occurs in the 

United States, regardless of whether the 

non-covered components or materials 

are of domestic origin, e.g., plastics. The 

commenter continues to state that, 

consequently, material and components 

that are normally associated with 

covered items should not be required to 

be compliant with section 604, except 

when they are specifically enumerated 

as a covered item under section 604. 

DHS response to the comment. 

Concur in part. With respect to clothing 

covered by paragraph (b)(1)(A), section 

604 exempts ‘‘other items not normally 

associated with’’ clothing. However, 

there is no such exemption for the other 

covered items addressed in other 

paragraphs of the section. DHS believes 

it is impractical to list all items that 

might not be normally associated with 

clothing in the regulation. DHS believes 

a better solution is to leave decisions to 

individual officials based on the facts of 

the situation. 

Comment on Examples of Normally 

Associated Components—A commenter 

urged DHS to amend the HSAR to add 

examples of material and components 

that are normally associated with 

covered items, but which are not 

themselves covered. The commenter 

contends this will serve to eliminate 

confusion and assist industry to comply 

with section 604. 

DHS response to the comment. Do not 

concur. Such a list would serve no 

purpose other than to deprive 

contracting officers of discretion, where 

a position may or may not be borne out 

by the facts of an individual acquisition. 

DHS believes a better solution is to 

leave decisions to individual officials 

based on the facts of the individual 

acquisition. 

Comment on Para-aramid Fibers—A 

commenter suggested that DHS reach 

out to DoD in order to address the nonavailability of fibers and yarns that are 

para-aramid fibers and yarns 

manufactured in qualifying countries, in 

a manner similar to exceptions granted 

by DoD. The commenter suggests DHS 

should determine if para-aramid fibers 

that are part of non-commercial items 

should be exempt (per a non-availability 

determination) (commercial para-aramid 

fibers are exempt under the interim 

rule). 

DHS response to the comment. 

Concur in part. To the extent items are 

procured by DHS that include paraaramid fibers and are covered by section 

604, cognizant programs will have to 

address availability of para-aramid 

fibers and this will undoubtedly involve 

contacting appropriate DoD officials. 

Comment on Fire retardant thread 

non-availability—After stating a belief 

that this rule is an extension (to DHS) 

of the Berry Amendment, a commenter 

recounts a 2008 purchase of flame 

resistant uniforms for the U.S. Army at 

Ft. Belvoir in which the commenter 

worked within the boundaries of the 

Berry Amendment. However, the 

commenter found no domestic source 

for the thread needed to meet the fire 

resistant standards and had an 

exemption to have the uniform makers 

purchase the thread from Lenzing 

(Austria). The commenter believes DHS 

will need a way to likewise allow for 

exceptions not explicitly listed in the 

proposed rule, and should plan for that 

inevitable situation by indicating how 

exemption requests would need to be 

documented and approved (e.g., by the 

Agency Head). 

DHS response to the comment. 

Concur. The published rule describes 

who must approve the nonavailability 

exception (the DHS Chief Procurement 

Officer) and what information the 

request for approval must include. See 

3025.7002–2(c) for details. 

III. Regulatory Requirements 

A. Small Entity Analysis 

Because this rule was initiated as an 

interim rule, the Regulatory Flexibility 

Act requires neither an Initial nor a 

Final Regulatory Flexibility analysis. 

Nonetheless, we considered whether the 

interim rule would have a significant 

economic impact on a substantial 

number of small entities at 74 FR 

41348–41349. We received no 

comments on our analysis and continue 

to believe that this rule would not have 


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Federal Register / Vol. 75, No. 110 / Wednesday, June 9, 2010 / Rules and Regulations 32681 

a significant economic impact on a 

substantial number of small entities. 

B. Executive Order 12866 (Regulatory 

Planning and Review) 

This rule is not a significant 

regulatory action under section 3(f) of 

Executive Order 12866, and the Office 

of Management and Budget has not 

reviewed it under that Order. 

C. Assistance for Small Entities 

Under section 213(a) of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996 (Pub. L. 104–121), 

we want to assist small entities in 

understanding the rule so that they can 

better evaluate its effects on them and 

participate in the rulemaking. Small 

businesses may send comments on the 

actions of Federal employees who 

enforce, or otherwise determine 

compliance with, Federal regulations to 

the Small Business and Agriculture 

Regulatory Enforcement Ombudsman 

and the Regional Small Business 

Regulatory Fairness Boards. The 

Ombudsman evaluates these actions 

annually and rates each agency’s 

responsiveness to small business. If you 

wish to comment on actions by DHS 

employees, call 1–888–REG–FAIR (1– 

888–734–3247). The DHS will not 

retaliate against small entities that 

question or complain about this interim 

rule or any DHS policy. 

D. Collection of Information 

The Paperwork Reduction Act (Pub. 

L. 104–13) does not apply because the 

rule contains no information collection 

requirements. Accordingly, the 

Department will not submit a change 

request for any burdens concerning this 

rule to the Office of Management and 

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

List of Subjects in 48 CFR Parts 3025 

and 3052 

Government procurement. 

■ Accordingly, the interim rule 

amending 48 CFR Parts 3025 and 3052 

which was published at 74 FR 41346, on 

August 17, 2009, is adopted as a final 

rule without change. 

Richard K. Gunderson, 

Acting Chief Procurement Officer, 

Department of Homeland Security. 

[FR Doc. 2010–13804 Filed 6–8–10; 8:45 am] 

BILLING CODE 9110–9B–P 


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