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DHS Issues Final Rule Covering Buy American Requirements

James A. Morrissey, Washington Correspondent

The Department of Homeland Security (DHS) has issued its final rule covering Buy American requirements for its purchases of textile and apparel products under the American Recovery and Reinvestment Act of 2009. The agency adopted, without change, its interim rule issued last August 17, and in effect rejected a number of objections from textile manufacturers, organized labor and others.

DHS said it received comments from 26 organizations and individuals and members of Congress who suggested a number of changes, as they felt the interim rule did not carry out the full intent of the legislation. Commentators called for changes in the de minimis exceptions to the rule, the definition of national security interests and the listing of some of the trading partners with which the United States has preferential trade agreements; and they also called for the DHS to "mirror" the Berry Amendment, which covers textile and apparel purchases by the Department of Defense.

In his comments on the interim rule, Rep. Larry Kissell, D-N.C., who authored the textile provisions, said that "any rule allowing unnecessary use of non-domestic parts will substantially undermine the job-creating capability of the Kissell Amendment's provisions."  He emphasized that the amendment was enacted to benefit U.S. manufacturers in the textile industry and said, "It is incumbent upon DHS in drafting final rules to implement the amendment to ensure that U.S. producers of textile components and products have the ability to compete and seek full procurement advantages as intended in the statute."

In turning down the commentators' suggestions, including Kissell's, DHS said the Homeland Security legislation "is not an extension of the Berry Amendment," and, therefore, it would be necessary to have its own definition of which products "directly affect national security." DHS also insisted on treating participants in preferential trade agreements under its own procedures, saying "deletion of the named countries (Mexico, Canada and Chile) would complicate understanding of the rule under legal requirements that exist today and would require each individual contracting officer to determine the application to those countries." Other suggestions from commentators also were rejected.

The text of the final rule is available in the Federal Register for June 9, Vol.75, No.110/Rules and Regulations, http://edocket.access.gpo.gov/2010/pdf/2010-13804.pdf.

June 22, 2010