Defense Federal Acquisition Regulation Supplement: Fire-Resistant Fiber for Production of Military Uniforms (DFARS Case 2011-D021), 71831-71833 [2011-29428]
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Federal Register / Vol. 76, No. 223 / Friday, November 18, 2011 / Rules and Regulations
A. Implements Law as Written
Comment: One respondent stated that
the DFARS interim rule implements the
statute as written.
Response: Noted.
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)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
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.
SUMMARY:
Ms.
Amy G. Williams, telephone 703–602–
0328.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
I. Background
jlentini on DSK4TPTVN1PROD with RULES3
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:
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71831
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.
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.
E. Domestic Nonavailability
Determinations (DNADs) or Waivers
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
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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.
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18NOR3
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
jlentini on DSK4TPTVN1PROD with RULES3
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).
VerDate Mar<15>2010
19:02 Nov 17, 2011
Jkt 226001
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
PO 00000
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Fmt 4701
Sfmt 4700
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
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
List of Subjects in 48 CFR Parts 211 and
225
Government procurement.
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:
■
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.
jlentini on DSK4TPTVN1PROD with RULES3
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.
I. Background
2. Add section 211.170 to read as
follows:
■
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.
Jkt 226001
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
Ms.
Meredith Murphy, telephone 703–602–
1302.
SUPPLEMENTARY INFORMATION:
PART 211—DESCRIBING AGENCY
NEEDS
19:02 Nov 17, 2011
Defense Federal Acquisition
Regulation Supplement: Simplified
Acquisition Threshold for
Humanitarian or Peacekeeping
Operations (DFARS Case 2011–D032)
FOR FURTHER INFORMATION CONTACT:
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
VerDate Mar<15>2010
48 CFR Parts 202 and 218
SUMMARY:
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations
System.
BILLING CODE 5001–06–P
Defense Acquisition Regulations
System
RIN 0750–AH29
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).
[FR Doc. 2011–29428 Filed 11–17–11; 8:45 am]
DEPARTMENT OF DEFENSE
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
PO 00000
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Fmt 4701
Sfmt 9990
71833
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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]]>Agencies
[Federal Register Volume 76, Number 223 (Friday, November 18, 2011)]
[Rules and Regulations]
[Pages 71831-71833]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-29428]
-----------------------------------------------------------------------
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 fire-
resistant 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 fire-resistant 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 fire-resistant 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 fire-resistant 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
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.
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.
[[Page 71832]]
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 flame-resistant 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 fire-resistant 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 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.
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
fire-resistant 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
[[Page 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:
0
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
0
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
fire-resistant rayon fiber.
PART 225--FOREIGN ACQUISITION
0
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
