DHS Issues Final Rule Covering Buy American Requirements

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

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

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,

June 22, 2010