[Federal Register Volume 76, Number 223 (Friday, November 18, 2011)]
[Rules and Regulations]
[Pages 71831-71833]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-29428]


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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.

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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