Defense Federal Acquisition Regulation Supplement; Para-Aramid Fibers and Yarns Manufactured in a Qualifying Country, 34943-34946 [2010-14937]
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Federal Register / Vol. 75, No. 118 / Monday, June 21, 2010 / Rules and Regulations
rule does not impose additional
information collection requirements that
require the approval of the Office of
Management and Budget under 44
U.S.C. 3501, et seq.
D. Determination To Issue an Interim
Rule
A determination has been made under
the authority of the Secretary of Defense
that urgent and compelling reasons exist
to publish an interim rule prior to
affording the public an opportunity to
comment. This interim rule authorizes
and establishes conditions under which
the Department of Defense may enter
into a contract for a period not to exceed
10 years for the purchase of electricity
from sources of renewable energy,
pursuant to section 828 of the National
Defense Authorization Act for Fiscal
Year 2008. It is necessary to publish this
rule prior to obtaining public comments
because the statute became effective
upon enactment, and it is imperative
that DoD contracting officers be aware of
the conditions under which DoD may
enter into such contracts to ensure that
they are in compliance with the
requirements of the Act. However, DoD
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 217 and
241
Government procurement.
the contracting activity determines, on
the basis of a business case analysis (see
PGI 217.1, Supplemental Information
TAB, for a business case analysis
template and guidance) prepared by the
requiring activity, that—
(1) The proposed purchase of
electricity under such contract is cost
effective; and
(2) It would not be possible to
purchase electricity from the source in
an economical manner without the use
of a contract for a period in excess of
five years.
(c) Nothing in this section shall be
construed to preclude the DoD from
using other multiyear contracting
authority of DoD to purchase renewable
energy.
PART 241—ACQUISITION OF UTILITY
SERVICES
3. Section 241.103 is amended by
redesignating existing paragraph (2) as
paragraph (3); and by adding new
paragraph (2) to read as follows:
■
241.103
Statutory and delegated authority.
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(2) See 217.175 for authority to enter
into multiyear contracts for electricity
from renewable energy sources.
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[FR Doc. 2010–14938 Filed 6–18–10; 8:45 am]
BILLING CODE 5001–08–P
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations
System.
DEPARTMENT OF DEFENSE
Therefore, 48 CFR parts 217 and 241
are amended as follows:
■ 1. The authority citation for 48 CFR
parts 217 and 241 continues to read as
follows:
48 CFR Parts 225 and 252
■
Authority: 41 U.S.C. 421 and 48 CFR
chapter 1.
2. Section 217.175 is added to read as
follows:
■
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217.175 Multiyear contracts for electricity
from renewable energy sources.
(a) The head of the contracting
activity may enter into a contract for a
period not to exceed 10 years for the
purchase of electricity from sources of
renewable energy, as that term is
defined in section 203(b)(2) of the
Energy Policy Act of 2005 (42 U.S.C.
15852(b)(2)).
(b) Limitations. The head of the
contracting activity may exercise the
authority in paragraph (a) of this section
to enter into a contract for a period in
excess of five years only if the head of
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[DFARS Case 2008–D024]
RIN 0750–AG13
PART 217—SPECIAL CONTRACTING
METHODS
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Defense Acquisition Regulations
System
Defense Federal Acquisition
Regulation Supplement; Para-Aramid
Fibers and Yarns Manufactured in a
Qualifying Country
AGENCY: Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
SUMMARY: DoD is adopting as final, with
changes, the interim rule amending the
Defense Federal Acquisition Regulation
Supplement (DFARS) to implement
determinations made by the Under
Secretary of Defense for Acquisition,
Technology, and Logistics with regard
to the acquisition of items containing
para-aramid fibers and yarns
manufactured in foreign countries that
have entered into a reciprocal defense
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34943
procurement memorandum of
understanding with the United States.
DATES: Effective Date: June 21, 2010.
FOR FURTHER INFORMATION CONTACT: Ms.
Amy Williams, 703–602–0310.
SUPPLEMENTARY INFORMATION:
A. Background
DoD published an interim rule in the
Federal Register on December 18, 2008
(73 FR 76970). The comment period
closed on February 17, 2009.
10 U.S.C. 2533a restricts DoD
procurement of foreign synthetic fabric
or coated synthetic fabric, including
textiles, fibers, and yarns for use in such
fabrics. Section 807 of the National
Defense Authorization Act for Fiscal
Year 1999 (Pub. L. 105–261) provides
authority for DoD to waive the
restriction at 10 U.S.C. 2533a with
regard to para-aramid fibers and yarns.
On February 12, 1999, the Under
Secretary of Defense for Acquisition and
Technology (USD(AT&L)) waived the
restriction at 10 U.S.C. 2533a for paraaramid fibers and yarns manufactured
in the Netherlands. On August 15, 2008,
the USD(AT&L) expanded the existing
waiver to permit the acquisition of paraaramid fibers and yarns manufactured
in any qualifying country listed in
DFARS 225.003(10).
The interim rule also clarified the
definition of ‘‘qualifying countries’’ at
DFARS 225.003 and 252.225–7012 by
including a list of the qualifying
countries within the definition instead
of referring to the list at DFARS
225.872–1.
DoD received comments on the
interim rule from nine respondents.
Based on public comments, changes
were made to the interim rule. The
differences between the interim rule and
this final rule include—
• Restricting the authority to acquire
para-aramid fibers and yarns
manufactured in a qualifying country to
apply to para-aramid fibers (both staple
and continuous) and continuous
filament para-aramid yarns, based on a
new USD(AT&L) determination and
findings, dated November 9, 2009,
which contains a five year review
requirement.
• Amplifying the definition of
‘‘qualifying country’’ to make clear that
these are countries with which DoD has
negotiated reciprocal defense
procurement memoranda of
understanding.
B. Public Comments
The following is a discussion of the
comments and the changes included in
this final rule as a result of those
comments:
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1. Limit the Rule to Staple Para-Aramid
Fibers and Continuous Filament ParaAramid Yarns
Two respondents opposed the interim
rule acceptance of para-aramid yarns
other than continuous filament yarns
from any qualifying country (not just the
Netherlands) because they believe it
will increase competition from yarn
producers outside the United States.
They do not want the interim rule to
apply to ‘‘yarns spun from staple paraaramid fibers.’’ They believe the rule
should only apply to staple para-aramid
fibers and continuous filament paraaramid yarns.
Response: The respondents’ rationale
is that section 807 says that DoD may
only procure articles containing paraaramid fibers and yarns manufactured
in a qualifying country if—
• Procuring articles containing paraaramid fibers and yarns manufactured
from suppliers in the national
technology industrial base (U.S. &
Canada) would result in sole source
contracts or subcontracts; and
• To do so would not be in the best
interests of the Government.
DoD’s 1999 Findings of Fact stated
that DuPont is the sole manufacturer of
para-aramid (continuous and staple)
fiber in the United States and Canada.
This is a correct statement. Therefore,
the request by the respondents to limit
this rule to staple para-aramid fiber is
unfounded.
However, the Findings also stated that
DuPont is the sole producer of paraaramid yarn. DuPont is the sole
producer of continuous filament paraaramid yarn, but it does not produce
within the U.S. yarns made from staple
para-aramid fiber. DoD has now
identified 72 yarn producers in the U.S.
and Canada, and three of these advertise
that they produce yarn products made
from DuPont Kevlar. DuPont supplies
its Kevlar staple fiber to four major and
six minor yarn producers in the U.S.
and Canada, and it believes that there
are several dozen more companies in
Europe who produce yarn of this type.
Therefore, the Under Secretary of
Defense (AT&L) issued on November 9,
2009, a revised determination and
findings that limits the findings to
staple and continuous para-aramid
fibers and continuous filament paraaramid yarn. The final rule has been
revised accordingly.
2. Review in Five Years To Establish
Continued National Defense Need
One respondent commented that this
exception should be reviewed in five
years and extended only if needed for
national defense purposes. Another
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respondent notes that DuPont is in the
process of building a new plant in South
Carolina and that this would boost the
availability of these products in the U.S.
Response: DoD concurs. The request
from industry that precipitated the USD
(AT&L)’s determination to waive the
restriction for all qualifying countries
was based on DoD’s immediate and
increasing need for ballistic strength
fiber in support of MRAP, ballistic
armor, and other defense requirements
in support of the Global War on Terror.
It is reasonable to assume that this need
will continue for at least five years, but
a review at that time is a good idea. This
requirement has been included in the
new determination and findings.
4. Domestic Para-Aramid Sewing
Thread May Be of Lower Quality
3. Detrimental to U.S. Manufacturing
Base
5. Need To Expand the Nations From
Which Fiber Can Be Procured
Several respondents opposed this rule
on the basis that it would be detrimental
to the U.S. textile manufacturing base.
One respondent was concerned about
negative impact on spinners, knitters,
weavers, finishers, and garment makers
in the supply chain. Another
respondent expressed concern over
more foreign imports, when the jobs are
so desperately needed in our own
country (see also discussion of
Regulatory Flexibility at paragraph 6). A
third respondent referred to detrimental
impact on the textile manufacturing
base. He cited the exodus of textile
manufacturing from the United States
for decades and stated that the textile
manufacturing that remains has moved
into high performance and niche
specialty areas. This respondent stated
that by allowing items containing these
fibers and the importation of yarns to
move forward will continue to erode the
U.S. textile manufacturing base.
Response: There are only two
companies in the United States or a
qualifying country that make paraaramid fibers and continuous filament
para-aramid yarns: DuPontTM which
makes Kevlar®, and the Teijin Group
which makes Twaron. DuPontTM is the
sole producer of these items in the
United States. Therefore, this rule, when
amended to exclude yarn produced
from staple para-aramid fibers, will not
deprive any U.S. companies of business.
The concern for the well-being of the
textile industry, including knitters,
weavers, finishers, and garment makers,
is misplaced. This rule does not allow
acquisition of items containing paraaramid fibers and continuous filament
yarns from qualifying countries, but
only the fibers and yarns (see DFARS
225.7002–2(m)).
One respondent proposed we add
other friendly nations of quality ballistic
fiber, such as Japan and India, to the list
of nations from which these fibers can
be procured.
Response: The authority provided to
DoD in section 807 of the National
Defense Authorization Act for Fiscal
Year 1999 (Pub. L. 105–261) specifically
applies only to foreign countries that are
a party to a reciprocal defense
procurement memorandum of
understanding (MOU) entered into
under section 2531 of title 10 of the
United States Code and that permits
United States firms that manufacture
para-aramid fibers and yarns to compete
with foreign firms for the sale of paraaramid fibers and yarns in that country,
as determined by the Secretary of
Defense. Section 2531 begins as follows:
(a) Considerations in Making and
Implementing MOUs and Related
Agreements. In the negotiation,
renegotiation, and implementation of
any existing or proposed memorandum
of understanding, or any existing or
proposed agreement related to a
memorandum of understanding,
between the Secretary of Defense, acting
on behalf of the United States, and one
or more foreign countries (or any
instrumentality of a foreign country)
relating to research, development, or
production of defense equipment, or to
the reciprocal procurement of defense
items, the Secretary of Defense shall—
(1) Consider the effects of such
existing or proposed memorandum of
understanding or related agreement on
the defense technology and industrial
base of the United States; and
(2) Regularly solicit and consider
comments and recommendations from
the Secretary of Commerce with respect
to the commercial implications of such
memorandum of understanding or
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One respondent fully supported the
interim rule and recommended that it
should be made permanent. The
respondent cited an experience with the
specification to use para-aramid thread
that was heavier and weaker than the
commercial thread that was used in the
commercial marketplace, in order to
comply with the domestic source
restriction.
Response: The Berry Amendment
does not require the use of domestic
fibers at the expense of satisfactory
quality. There is an exception that can
be applied if domestic products of a
satisfactory quality are not available.
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related agreement and the potential
effects of such memorandum of
understanding or related agreement on
the international competitive position of
United States industry.
Under the authority of 10 U.S.C. 2531,
DoD has negotiated reciprocal defense
procurement (RDP) MOUs with
‘‘qualifying’’ countries. These RDP MOU
partners have committed to remove
barriers to purchases of supplies
produced in the other country or
services performed by sources in the
other country. The qualifying countries
listed at DFARS 225.003(10) are the
countries with which DoD has
reciprocal defense procurement MOUs.
DoD has not negotiated reciprocal
defense procurement MOUs with Japan
or India.
8. Outside Scope of Case
6. Regulatory Flexibility Analysis
DoD certifies that this 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 there are no small entities in
the United States that can produce paraaramid fibers or continuous filament
para-aramid yarns. The impact on
spinners of para-aramid yarn other than
continuous filament yarn has been
removed by the change to the final rule.
One respondent commented on the
statement with regard to regulatory
flexibility analysis that small entities
normally are not involved in the
production of para-aramid fibers and
yarns. The respondent stated that there
are many small entities involved in the
weaving and production of para-aramid
fabrics and that it would be devastating
to the textile industry to expand the rule
to cover the import of woven fabric or
finished products.
Response: Since the rule does not
cover the import of woven fabric or
finished products, but addresses only
fibers and yarns, this statement does not
affect the requirement for a regulatory
flexibility analysis. The reinstated
requirement for domestic manufacture
of yarn from staple para-aramid fiber
removes any possible impact on
domestic small entities.
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7. Clarify the Definition of ‘‘Qualifying
Country’’
One respondent stated that the
interim rule insufficiently defined
‘‘qualifying country.’’ Alternate language
was provided to expand this definition:
‘‘Qualifying country’’ means a country
with a memorandum of understanding
or international agreement with the
United States in which both agree to
remove barriers to purchases of supplies
produced in the other country or
services performed by sources of the
other country, and the memorandum or
agreement complies, where applicable,
with the requirements of section 36 of
the Arms Export Control Act (22 U.S.C.
2776) and with 10 U.S.C. 2457.
Response: DoD has adopted the
expanded definition.
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a. One respondent recommends that
DoD should also exempt meta-aramid
fibers from qualifying countries.
Response: This comment is outside
the scope of this case. The law which
DoD is implementing only authorizes
the exceptions for para-aramid fibers.
b. One respondent has comments
regarding other changes to the clause at
DFARS 252.212–7001.
Response: These comments relate to
DFARS Case 2008–D002 and have been
considered under that case.
This rule was subject to Office of
Management and Budget review under
Executive Order 12866, dated
September 30, 1993. This rule is not a
major rule under 5 U.S.C. 804.
C. Regulatory Flexibility Act
34945
(10) Qualifying country means a
country with a reciprocal defense
procurement memorandum of
understanding or international
agreement with the United States in
which both countries agree to remove
barriers to purchases of supplies
produced in the other country or
services performed by sources of the
other country, and the memorandum or
agreement complies, where applicable,
with the requirements of section 36 of
the Arms Export Control Act (22 U.S.C.
2776) and with 10 U.S.C. 2457.
Accordingly, the following are
qualifying countries:
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■ 3. Section 225.7002–2 is amended by
revising paragraph (m)(2) to read as
follows:
225.7002–2
Exceptions.
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(m) * * *
(2) The fibers and yarns are paraaramid fibers and continuous filament
para-aramid yarns manufactured in a
qualifying country.
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PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
4. Section 252.212–7001 is amended
by revising the clause date and revising
paragraph (b)(8) to read as follows:
D. Paperwork Reduction Act
■
The Paperwork Reduction Act does
not apply, because the rule does not
impose any information collection
requirements that require the approval
of the Office of Management and Budget
under 44 U.S.C. 3501, et seq.
252.212–7001 Contract terms and
conditions required to implement statutes
or Executive orders applicable to Defense
acquisitions of commercial items.
List of Subjects in 48 CFR Parts 225 and
252
Government procurement
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations
System.
Accordingly, the interim rule
amending 48 CFR parts 225 and 252,
which was published at 73 FR 76970 on
December 18, 2008, is adopted as a final
rule with the following changes:
■ 1. The authority citation for 48 CFR
parts 225 and 252 continues to read as
follows:
■
Authority: 41 U.S.C. 421 and 48 CFR
chapter 1.
PART 225—FOREIGN ACQUISITION
2. Section 225.003 is amended by
revising the introductory text of
paragraph (10) to read as follows:
■
225.003
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CONTRACT TERMS AND
CONDITIONS REQUIRED TO
IMPLEMENT STATUTES OR
EXECUTIVE ORDERS APPLICABLE TO
DEFENSE ACQUISITIONS OF
COMMERCIAL ITEMS (JUN 2010)
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(b) * * *
(8) ______ 252.225–7012, Preference for
Certain Domestic Commodities (JUN 2010)
(10 U.S.C. 2533a).
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5. Section 252.225–7012 is amended
by revising the clause date; revising the
introductory text of paragraph (a)(3);
and revising paragraph (c)(6)(ii) to read
as follows:
■
252.225–7012 Preference for certain
domestic commodities.
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PREFERENCE FOR CERTAIN
DOMESTIC COMMODITIES (JUN 2010)
(a) * * *
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(3) Qualifying country means a
country with a reciprocal defense
procurement memorandum of
understanding or international
agreement with the United States in
which both countries agree to remove
barriers to purchases of supplies
produced in the other country or
services performed by sources of the
other country, and the memorandum or
agreement complies, where applicable,
with the requirements of section 36 of
the Arms Export Control Act (22 U.S.C.
2776) and with 10 U.S.C. 2457.
Accordingly, the following are
qualifying countries:
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(c) * * *
(6) * * *
(ii) The fibers and yarns are paraaramid fibers and continuous filament
para-aramid yarns manufactured in a
qualifying country.
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[FR Doc. 2010–14937 Filed 6–18–10; 8:45 am]
BILLING CODE 5001–08–P
List of Subjects in 48 CFR Part 239
Government procurement
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations
System.
Therefore DoD is amending 48 CFR
part 239 as follows:
■
PART 239—ACQUISITION OF
INFORMATION TECHNOLOGY
1. The authority citation for 48 CFR
part 239 continues to read as follows:
■
Authority: 41 U.S.C. 421 and 48 CFR
chapter 1.
2. In 239.7102–1, revise paragraph
(a)(7) to read as follows:
■
239.7102–1
General.
(a) * * *
(7) DoD Directive 8570.01,
Information Assurance Training,
Certification, and Workforce
Management; and
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[FR Doc. 2010–14936 Filed 6–18–10; 8:45 am]
BILLING CODE 5001–08–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety
Administration
48 CFR Part 239
Defense Federal Acquisition
Regulation Supplement; Technical
Amendment
49 CFR Part 541
Defense Acquisition
Regulations System. Department of
Defense (DoD).
ACTION: Final rule.
RIN 2127–AK68
[Docket No. NHTSA–2010–0070]
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AGENCY:
SUMMARY: DoD is issuing a technical
amendment to the Defense Federal
Acquisition Regulation Supplement
(DFARS) to change a DoD Directive
number for DoD Directive 8570.01
Information Assurance Training,
Certification, and Workforce
Management, certified current as of
April 23, 2007.
DATES: Effective Date: June 21, 2010.
FOR FURTHER INFORMATION CONTACT: Ms.
Ynette R. Shelkin, Defense Acquisition
Regulations System, OUSD (AT&L)
DPAP (DARS), Room 3B855, 3060
Defense Pentagon, Washington, DC
20301–3060. Telephone 703–602–8384;
facsimile 703–602–0350.
SUPPLEMENTARY INFORMATION: This final
rule amends DFARS text at 239.7102–
1(a)(7) by correcting the DoD Directive
number from 8570.1 to 8570.01 in a list
of current information assurance
policies, procedures, and statutes
pertaining to information technology.
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Federal Motor Vehicle Theft Prevention
Standard; Final Listing of 2011 Light
Duty Truck Lines Subject to the
Requirements of This Standard and
Exempted Vehicle Lines for Model Year
2011
AGENCY: National Highway Traffic
Safety Administration (NHTSA),
Department of Transportation.
ACTION: Final rule.
SUMMARY: This final rule announces
NHTSA’s determination that there are
no new model year (MY) 2011 light duty
truck lines subject to the parts-marking
requirements of the Federal motor
vehicle theft prevention standard
because they have been determined by
the agency to be high-theft or because
they have a majority of interchangeable
parts with those of a passenger motor
vehicle line. This final rule also
identifies those vehicle lines that have
been granted an exemption from the
parts-marking requirements because the
vehicles are equipped with antitheft
devices determined to meet certain
statutory criteria.
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DATES: Effective Date: The amendment
made by this final rule is effective June
21, 2010.
FOR FURTHER INFORMATION CONTACT: Ms.
Rosalind Proctor, Consumer Standards
Division, Office of International Policy,
Fuel Economy and Consumer Programs,
NHTSA, West Building, 1200 New
Jersey Avenue, SE., (NVS–131, Room
W43–302) Washington, DC 20590. Ms.
Proctor’s telephone number is (202)
366–0846. Her fax number is (202) 493–
0073.
SUPPLEMENTARY INFORMATION: The theft
prevention standard applies to (1) all
passenger car lines; (2) all multipurpose
passenger vehicle (MPV) lines with a
gross vehicle weight rating (GVWR) of
6,000 pounds or less; (3) low-theft lightduty truck (LDT) lines with a GVWR of
6,000 pounds or less that have major
parts that are interchangeable with a
majority of the covered major parts of
passenger car or MPV lines; and (4)
high-theft light-duty truck lines with a
GVWR of 6,000 pounds or less.
The purpose of the theft prevention
standard (49 CFR Part 541) is to reduce
the incidence of motor vehicle theft by
facilitating the tracing and recovery of
parts from stolen vehicles. The standard
seeks to facilitate such tracing by
requiring that vehicle identification
numbers (VINs), VIN derivative
numbers, or other symbols be placed on
major component vehicle parts. The
theft prevention standard requires motor
vehicle manufacturers to inscribe or
affix VINs onto covered original
equipment major component parts, and
to inscribe or affix a symbol identifying
the manufacturer and a common symbol
identifying the replacement component
parts for those original equipment parts,
on all vehicle lines subject to the
requirements of the standard.
Section 33104(d) provides that once a
line has become subject to the theft
prevention standard, the line remains
subject to the requirements of the
standard unless it is exempted under
§ 33106. Section 33106 provides that a
manufacturer may petition annually to
have one vehicle line exempted from
the requirements of § 33104, if the line
is equipped with an antitheft device
meeting certain conditions as standard
equipment. The exemption is granted if
NHTSA determines that the antitheft
device is likely to be as effective as
compliance with the theft prevention
standard in reducing and deterring
motor vehicle thefts.
The agency annually publishes the
names of those LDT lines that have been
determined to be high theft pursuant to
49 CFR Part 541, those LDT lines that
have been determined to have major
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]]>Agencies
[Federal Register Volume 75, Number 118 (Monday, June 21, 2010)]
[Rules and Regulations]
[Pages 34943-34946]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-14937]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 225 and 252
[DFARS Case 2008-D024]
RIN 0750-AG13
Defense Federal Acquisition Regulation Supplement; Para-Aramid
Fibers and Yarns Manufactured in a Qualifying Country
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD is adopting as final, with changes, the interim rule
amending the Defense Federal Acquisition Regulation Supplement (DFARS)
to implement determinations made by the Under Secretary of Defense for
Acquisition, Technology, and Logistics with regard to the acquisition
of items containing para-aramid fibers and yarns manufactured in
foreign countries that have entered into a reciprocal defense
procurement memorandum of understanding with the United States.
DATES: Effective Date: June 21, 2010.
FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, 703-602-0310.
SUPPLEMENTARY INFORMATION:
A. Background
DoD published an interim rule in the Federal Register on December
18, 2008 (73 FR 76970). The comment period closed on February 17, 2009.
10 U.S.C. 2533a restricts DoD procurement of foreign synthetic
fabric or coated synthetic fabric, including textiles, fibers, and
yarns for use in such fabrics. Section 807 of the National Defense
Authorization Act for Fiscal Year 1999 (Pub. L. 105-261) provides
authority for DoD to waive the restriction at 10 U.S.C. 2533a with
regard to para-aramid fibers and yarns. On February 12, 1999, the Under
Secretary of Defense for Acquisition and Technology (USD(AT&L)) waived
the restriction at 10 U.S.C. 2533a for para-aramid fibers and yarns
manufactured in the Netherlands. On August 15, 2008, the USD(AT&L)
expanded the existing waiver to permit the acquisition of para-aramid
fibers and yarns manufactured in any qualifying country listed in DFARS
225.003(10).
The interim rule also clarified the definition of ``qualifying
countries'' at DFARS 225.003 and 252.225-7012 by including a list of
the qualifying countries within the definition instead of referring to
the list at DFARS 225.872-1.
DoD received comments on the interim rule from nine respondents.
Based on public comments, changes were made to the interim rule. The
differences between the interim rule and this final rule include--
Restricting the authority to acquire para-aramid fibers
and yarns manufactured in a qualifying country to apply to para-aramid
fibers (both staple and continuous) and continuous filament para-aramid
yarns, based on a new USD(AT&L) determination and findings, dated
November 9, 2009, which contains a five year review requirement.
Amplifying the definition of ``qualifying country'' to
make clear that these are countries with which DoD has negotiated
reciprocal defense procurement memoranda of understanding.
B. Public Comments
The following is a discussion of the comments and the changes
included in this final rule as a result of those comments:
[[Page 34944]]
1. Limit the Rule to Staple Para-Aramid Fibers and Continuous Filament
Para-Aramid Yarns
Two respondents opposed the interim rule acceptance of para-aramid
yarns other than continuous filament yarns from any qualifying country
(not just the Netherlands) because they believe it will increase
competition from yarn producers outside the United States. They do not
want the interim rule to apply to ``yarns spun from staple para-aramid
fibers.'' They believe the rule should only apply to staple para-aramid
fibers and continuous filament para-aramid yarns.
Response: The respondents' rationale is that section 807 says that
DoD may only procure articles containing para-aramid fibers and yarns
manufactured in a qualifying country if--
Procuring articles containing para-aramid fibers and yarns
manufactured from suppliers in the national technology industrial base
(U.S. & Canada) would result in sole source contracts or subcontracts;
and
To do so would not be in the best interests of the
Government.
DoD's 1999 Findings of Fact stated that DuPont is the sole
manufacturer of para-aramid (continuous and staple) fiber in the United
States and Canada. This is a correct statement. Therefore, the request
by the respondents to limit this rule to staple para-aramid fiber is
unfounded.
However, the Findings also stated that DuPont is the sole producer
of para-aramid yarn. DuPont is the sole producer of continuous filament
para-aramid yarn, but it does not produce within the U.S. yarns made
from staple para-aramid fiber. DoD has now identified 72 yarn producers
in the U.S. and Canada, and three of these advertise that they produce
yarn products made from DuPont Kevlar. DuPont supplies its Kevlar
staple fiber to four major and six minor yarn producers in the U.S. and
Canada, and it believes that there are several dozen more companies in
Europe who produce yarn of this type.
Therefore, the Under Secretary of Defense (AT&L) issued on November
9, 2009, a revised determination and findings that limits the findings
to staple and continuous para-aramid fibers and continuous filament
para-aramid yarn. The final rule has been revised accordingly.
2. Review in Five Years To Establish Continued National Defense Need
One respondent commented that this exception should be reviewed in
five years and extended only if needed for national defense purposes.
Another respondent notes that DuPont is in the process of building a
new plant in South Carolina and that this would boost the availability
of these products in the U.S.
Response: DoD concurs. The request from industry that precipitated
the USD (AT&L)'s determination to waive the restriction for all
qualifying countries was based on DoD's immediate and increasing need
for ballistic strength fiber in support of MRAP, ballistic armor, and
other defense requirements in support of the Global War on Terror. It
is reasonable to assume that this need will continue for at least five
years, but a review at that time is a good idea. This requirement has
been included in the new determination and findings.
3. Detrimental to U.S. Manufacturing Base
Several respondents opposed this rule on the basis that it would be
detrimental to the U.S. textile manufacturing base.
One respondent was concerned about negative impact on spinners,
knitters, weavers, finishers, and garment makers in the supply chain.
Another respondent expressed concern over more foreign imports, when
the jobs are so desperately needed in our own country (see also
discussion of Regulatory Flexibility at paragraph 6). A third
respondent referred to detrimental impact on the textile manufacturing
base. He cited the exodus of textile manufacturing from the United
States for decades and stated that the textile manufacturing that
remains has moved into high performance and niche specialty areas. This
respondent stated that by allowing items containing these fibers and
the importation of yarns to move forward will continue to erode the
U.S. textile manufacturing base.
Response: There are only two companies in the United States or a
qualifying country that make para-aramid fibers and continuous filament
para-aramid yarns: DuPontTM which makes Kevlar[supreg], and
the Teijin Group which makes Twaron. DuPontTM is the sole
producer of these items in the United States. Therefore, this rule,
when amended to exclude yarn produced from staple para-aramid fibers,
will not deprive any U.S. companies of business.
The concern for the well-being of the textile industry, including
knitters, weavers, finishers, and garment makers, is misplaced. This
rule does not allow acquisition of items containing para-aramid fibers
and continuous filament yarns from qualifying countries, but only the
fibers and yarns (see DFARS 225.7002-2(m)).
4. Domestic Para-Aramid Sewing Thread May Be of Lower Quality
One respondent fully supported the interim rule and recommended
that it should be made permanent. The respondent cited an experience
with the specification to use para-aramid thread that was heavier and
weaker than the commercial thread that was used in the commercial
marketplace, in order to comply with the domestic source restriction.
Response: The Berry Amendment does not require the use of domestic
fibers at the expense of satisfactory quality. There is an exception
that can be applied if domestic products of a satisfactory quality are
not available.
5. Need To Expand the Nations From Which Fiber Can Be Procured
One respondent proposed we add other friendly nations of quality
ballistic fiber, such as Japan and India, to the list of nations from
which these fibers can be procured.
Response: The authority provided to DoD in section 807 of the
National Defense Authorization Act for Fiscal Year 1999 (Pub. L. 105-
261) specifically applies only to foreign countries that are a party to
a reciprocal defense procurement memorandum of understanding (MOU)
entered into under section 2531 of title 10 of the United States Code
and that permits United States firms that manufacture para-aramid
fibers and yarns to compete with foreign firms for the sale of para-
aramid fibers and yarns in that country, as determined by the Secretary
of Defense. Section 2531 begins as follows:
(a) Considerations in Making and Implementing MOUs and Related
Agreements. In the negotiation, renegotiation, and implementation of
any existing or proposed memorandum of understanding, or any existing
or proposed agreement related to a memorandum of understanding, between
the Secretary of Defense, acting on behalf of the United States, and
one or more foreign countries (or any instrumentality of a foreign
country) relating to research, development, or production of defense
equipment, or to the reciprocal procurement of defense items, the
Secretary of Defense shall--
(1) Consider the effects of such existing or proposed memorandum of
understanding or related agreement on the defense technology and
industrial base of the United States; and
(2) Regularly solicit and consider comments and recommendations
from the Secretary of Commerce with respect to the commercial
implications of such memorandum of understanding or
[[Page 34945]]
related agreement and the potential effects of such memorandum of
understanding or related agreement on the international competitive
position of United States industry.
Under the authority of 10 U.S.C. 2531, DoD has negotiated
reciprocal defense procurement (RDP) MOUs with ``qualifying''
countries. These RDP MOU partners have committed to remove barriers to
purchases of supplies produced in the other country or services
performed by sources in the other country. The qualifying countries
listed at DFARS 225.003(10) are the countries with which DoD has
reciprocal defense procurement MOUs. DoD has not negotiated reciprocal
defense procurement MOUs with Japan or India.
6. Regulatory Flexibility Analysis
One respondent commented on the statement with regard to regulatory
flexibility analysis that small entities normally are not involved in
the production of para-aramid fibers and yarns. The respondent stated
that there are many small entities involved in the weaving and
production of para-aramid fabrics and that it would be devastating to
the textile industry to expand the rule to cover the import of woven
fabric or finished products.
Response: Since the rule does not cover the import of woven fabric
or finished products, but addresses only fibers and yarns, this
statement does not affect the requirement for a regulatory flexibility
analysis. The reinstated requirement for domestic manufacture of yarn
from staple para-aramid fiber removes any possible impact on domestic
small entities.
7. Clarify the Definition of ``Qualifying Country''
One respondent stated that the interim rule insufficiently defined
``qualifying country.'' Alternate language was provided to expand this
definition:
``Qualifying country'' means a country with a memorandum of
understanding or international agreement with the United States in
which both agree to remove barriers to purchases of supplies produced
in the other country or services performed by sources of the other
country, and the memorandum or agreement complies, where applicable,
with the requirements of section 36 of the Arms Export Control Act (22
U.S.C. 2776) and with 10 U.S.C. 2457.
Response: DoD has adopted the expanded definition.
8. Outside Scope of Case
a. One respondent recommends that DoD should also exempt meta-
aramid fibers from qualifying countries.
Response: This comment is outside the scope of this case. The law
which DoD is implementing only authorizes the exceptions for para-
aramid fibers.
b. One respondent has comments regarding other changes to the
clause at DFARS 252.212-7001.
Response: These comments relate to DFARS Case 2008-D002 and have
been considered under that case.
This rule was subject to Office of Management and Budget review
under Executive Order 12866, dated September 30, 1993. This rule is not
a major rule under 5 U.S.C. 804.
C. Regulatory Flexibility Act
DoD certifies that this 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 there
are no small entities in the United States that can produce para-aramid
fibers or continuous filament para-aramid yarns. The impact on spinners
of para-aramid yarn other than continuous filament yarn has been
removed by the change to the final rule.
D. Paperwork Reduction Act
The Paperwork Reduction Act does not apply, because the rule does
not impose any information collection requirements that require the
approval of the Office of Management and Budget under 44 U.S.C. 3501,
et seq.
List of Subjects in 48 CFR Parts 225 and 252
Government procurement
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.
0
Accordingly, the interim rule amending 48 CFR parts 225 and 252, which
was published at 73 FR 76970 on December 18, 2008, is adopted as a
final rule with the following changes:
0
1. The authority citation for 48 CFR parts 225 and 252 continues to
read as follows:
Authority: 41 U.S.C. 421 and 48 CFR chapter 1.
PART 225--FOREIGN ACQUISITION
0
2. Section 225.003 is amended by revising the introductory text of
paragraph (10) to read as follows:
225.003 Definitions.
* * * * *
(10) Qualifying country means a country with a reciprocal defense
procurement memorandum of understanding or international agreement with
the United States in which both countries agree to remove barriers to
purchases of supplies produced in the other country or services
performed by sources of the other country, and the memorandum or
agreement complies, where applicable, with the requirements of section
36 of the Arms Export Control Act (22 U.S.C. 2776) and with 10 U.S.C.
2457. Accordingly, the following are qualifying countries:
* * * * *
0
3. Section 225.7002-2 is amended by revising paragraph (m)(2) to read
as follows:
225.7002-2 Exceptions.
* * * * *
(m) * * *
(2) The fibers and yarns are para-aramid fibers and continuous
filament para-aramid yarns manufactured in a qualifying country.
* * * * *
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
4. Section 252.212-7001 is amended by revising the clause date and
revising paragraph (b)(8) to read as follows:
252.212-7001 Contract terms and conditions required to implement
statutes or Executive orders applicable to Defense acquisitions of
commercial items.
* * * * *
CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR
EXECUTIVE ORDERS APPLICABLE TO DEFENSE ACQUISITIONS OF COMMERCIAL ITEMS
(JUN 2010)
* * * * *
(b) * * *
(8) ------------ 252.225-7012, Preference for Certain Domestic
Commodities (JUN 2010) (10 U.S.C. 2533a).
* * * * *
0
5. Section 252.225-7012 is amended by revising the clause date;
revising the introductory text of paragraph (a)(3); and revising
paragraph (c)(6)(ii) to read as follows:
252.225-7012 Preference for certain domestic commodities.
* * * * *
PREFERENCE FOR CERTAIN DOMESTIC COMMODITIES (JUN 2010)
(a) * * *
[[Page 34946]]
(3) Qualifying country means a country with a reciprocal defense
procurement memorandum of understanding or international agreement with
the United States in which both countries agree to remove barriers to
purchases of supplies produced in the other country or services
performed by sources of the other country, and the memorandum or
agreement complies, where applicable, with the requirements of section
36 of the Arms Export Control Act (22 U.S.C. 2776) and with 10 U.S.C.
2457. Accordingly, the following are qualifying countries:
* * * * *
(c) * * *
(6) * * *
(ii) The fibers and yarns are para-aramid fibers and continuous
filament para-aramid yarns manufactured in a qualifying country.
* * * * *
[FR Doc. 2010-14937 Filed 6-18-10; 8:45 am]
BILLING CODE 5001-08-P
