Homeland Security Acquisition Regulation, Make Personal Protective Equipment in America Act Restrictions on Foreign Acquisition (HSAR Case 2024-003)

DEPARTMENT OF HOMELAND SECURITY <CFR>48 CFR Parts 3025 and 3052</CFR> <DEPDOC>[Docket No. DHS-2024-0020]</DEPDOC> <RIN>RIN 1601-AB15</RIN> <SUBJECT>Homeland Security Acquisition Regulation, Make Personal Protective Equipment in America Act Restrictions on Foreign Acquisition (HSAR Case 2024-003)</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Office of the Chief Procurement Officer (OCPO), Department of Homeland Security (DHS). <HD SOURCE="HED">ACTION:</HD> Proposed rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> DHS is proposing to amend the Homeland Security Acquisition Regulation (HSAR) to add a new subpart, clause, and provision that would codify how DHS complies with the requirements of the Make Personal Protective Equipment (PPE) in America Act. DHS believes these proposed changes would help to ensure the sustainment and expansion of domestic manufacturing for certain types of PPE critical to the United States' national response to a public health crisis, such as the COVID-19 pandemic. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments on the proposed rule should be submitted in writing to one of the addresses shown below on or before December 2, 2024, to be considered in the formation of the final rule. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Submit comments identified by HSAR Case 2024-003, Make PPE in America Act Restrictions on Foreign Acquisition, using any of the following methods: • <E T="03">Regulations.gov: https://www.regulations.gov.</E> Submit comments via the Federal eRulemaking portal by entering “HSAR Case 2024-003” under the heading “Enter Keyword or ID” and select “Search.” Select the link “Submit a Comment” that corresponds with “HSAR Case 2024-003.” Follow the instructions provided at the “Submit a Comment” screen. Please include your name, company name (if any), and “HSAR Case 2024-003” on your attached document. • <E T="03">Fax:</E> (202) 447-0520. • <E T="03">Mail:</E> Department of Homeland Security, Office of the Chief Procurement Officer, Acquisition Policy and Legislation, ATTN: Ms. Shaundra Ford, 245 Murray Drive, Bldg. 410 (RDS), Washington, DC 20528. Comments received generally will be posted without change to <E T="03">https://www.regulations.gov,</E> including any personal information provided. To confirm receipt of your comment(s), please check <E T="03">www.regulations.gov,</E> approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail). <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Shaundra Ford, Department of Homeland Security, Office of the Chief Procurement Officer, Acquisition Policy and Legislation, at (202) 282-8000 or email at <E T="03">HSAR@hq.dhs.gov.</E> Include HSAR Case 2024-003 in the subject line. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background</HD> The Buy American Act of 1933, as amended (BAA), addresses preferences in Federal procurement. <SU>1</SU> <FTREF/> The BAA provides a preference for the purchase of domestic supplies. <SU>2</SU> <FTREF/> <FTNT> <SU>1</SU>   <E T="03">See</E> 41 U.S.C. 8301-8305. </FTNT> <FTNT> <SU>2</SU>   <E T="03">See e.g.,</E> 41 U.S.C. 8302. </FTNT> On November 15, 2021, the Infrastructure Investment and Jobs Act was signed into law. <SU>3</SU> <FTREF/> Subtitle C of title IX of Division G of the Infrastructure Investment and Jobs Act is the Make PPE in America Act (“the Act”). <SU>4</SU> <FTREF/> The Act requires the Department of Homeland Security (DHS), Department of Veterans Affairs (VA), and the U.S. Department of Health and Human Services (HHS) to take certain actions to ensure the sustainment and expansion of domestic manufacturing for certain types of PPE critical to the United States' national response to a public health crisis, such as the COVID-19 pandemic. <SU>5</SU> <FTREF/> <FTNT> <SU>3</SU>  Infrastructure Investment and Jobs Act, Public Law 117-58, 135 Stat. 429 (2021). </FTNT> <FTNT> <SU>4</SU>  Make PPE in America Act, Public Law 117-58, div. G, title IX, subtitle C, sections 70951-70953, 135 Stat. 1312-1316. The Make PPE in America Act is codified in 41 U.S.C. 8301 note. </FTNT> <FTNT> <SU>5</SU>  Public Law 117-58, 135 Stat. 1312. </FTNT> The Act defines PPE as surgical masks, respirator masks and powered air purifying respirators and required filters, face shields and protective eyewear, gloves, disposable and reusable surgical and isolation gowns, head and foot coverings, and other gear or clothing used to protect an individual from the transmission of disease. <SU>6</SU> <FTREF/> The Act requires that any contracts for the procurement of PPE entered into by DHS, VA, and HHS be for PPE, including the materials and components thereof, that is domestically grown, reprocessed, reused, or produced. <SU>7</SU> <FTREF/> The Act also requires that these contracts with DHS, HHS, or VA for PPE last at least two years in duration plus all option periods necessary, to incentivize investment in the domestic production of PPE and the materials and components thereof. <SU>8</SU> <FTREF/> The Act allows for alternatives to domestic production under certain conditions ( <E T="03">i.e.,</E> where PPE assembled outside of the United States contains only materials and components grown, reprocessed, reused or produced in the United States). <SU>9</SU> <FTREF/> When using alternatives to domestic production, DHS, HHS, or VA, as applicable, must certify every 120 days that alternatives to domestic production are necessary to procure PPE due to the immediate needs of a public health emergency. <SU>10</SU> <FTREF/> The Act further recognizes certain exceptions to the domestic production of PPE, such as due to nonavailability, or where the PPE cannot be procured at U.S. market prices. <SU>11</SU> <FTREF/> Where DHS, HHS, or VA respectively grants an exception, that Secretary would also need to certify that implementing these exceptions are necessary to meet the immediate needs of a public health emergency. <SU>12</SU> <FTREF/> <FTNT> <SU>6</SU>  Public Law 117-58, 135 Stat. 1313. </FTNT> <FTNT> <SU>7</SU>  Public Law. 117-58, 135 Stat. 1313-14. </FTNT> <FTNT> <SU>8</SU>  Public Law 117-58, 135 Stat. 1314. </FTNT> <FTNT> <SU>9</SU>   <E T="03">Id.</E> </FTNT> <FTNT> <SU>10</SU>   <E T="03">Id.</E> </FTNT> <FTNT> <SU>11</SU>   <E T="03">Id.</E> </FTNT> <FTNT> <SU>12</SU>   <E T="03">Id.</E> </FTNT> The DHS Chief Procurement Officer can issue HSAR deviations when necessary to allow Components to deviate from the HSAR. <SU>13</SU> <FTREF/> On October 17, 2022, DHS issued a deviation regarding how DHS would comply with the Make PPE in America Act requirements (Deviation 23-01). <SU>14</SU> <FTREF/> <FTNT> <SU>13</SU>   <E T="03">See</E> HSAR Deviations, available at: <E T="03">https://www.dhs.gov/publication/current-hsar-deviations.</E> </FTNT> <FTNT> <SU>14</SU>  See HSAR Class Deviation 23-01 <E T="03">Implementation of the Make PPE in America Act</E> at <E T="03">https://www.dhs.gov/sites/default/files/2022-10/HSARClassDeviation23-01ImplementationofMakePPEinAmericaAct-508Final.pdf.</E> </FTNT> DHS proposes to amend the HSAR at 48 CFR part 3025, Foreign Acquisition, and at 48 CFR part 3052, Solicitation Provisions and Contract Clauses, to reflect the requirements of the Act. <HD SOURCE="HD1">II. Discussion</HD> DHS is proposing to add a new HSAR subpart, add an HSAR clause, and add an HSAR provision to codify how DHS complies with the Act. These proposed changes would also be consistent with Deviation 23-01. Each of these proposed changes is described in detail in the following paragraphs. DHS is proposing to add new subpart 3025.71, Make PPE in America Act Restrictions on Foreign Acquisition, to the HSAR. This would codify the restrictions in Deviation 23-01 applicable to the acquisition of certain PPE consistent with the Act. These restrictions include minimum time periods for contract duration, content requirements for certain PPE, alternatives to domestic production when conforming PPE is not available, and exceptions when conforming PPE is either nonavailable or cannot be procured at U.S. market prices (or in other words, only available at an unreasonable cost). This rule also proposes to codify the definitions of terms used in Deviation 23-01. <SU>15</SU> <FTREF/> These terms are “component,” “domestic personal protective equipment,” “foreign-assembled domestic personal protective equipment,” “foreign personal protective equipment,” “personal protective equipment,” and “United States.” <FTNT> <SU>15</SU>   <E T="03">See proposed</E> 48 CFR 3025.7101. </FTNT> HSAR 3025.7102-1 would apply to all types of actions, orders, option exercises, and contracts awarded and administered by DHS. It would require contracting officers to purchase domestic PPE except for certain exceptions specified in HSAR 3025.7102-2 and would require that any contract for PPE have a base period of performance of at least two years, plus option periods. HSAR 3025.7102-2 proposes to codify the conditions under which acquisitions of PPE, or component thereof, would be excepted from the requirements of HSAR 3025.7102-1 ( <E T="03">i.e.,</E> alternatives to domestic production, nonavailability, and unreasonable cost) consistent with Deviation 23-01. Deviation 23-01 lists the clauses and provisions that apply when an exception due to nonavailability or unreasonable cost is used, clarifying that contracting officers still need to comply with applicable laws and regulations. <SU>16</SU> <FTREF/> This rule proposes to codify these clauses and provisions. <SU>17</SU> <FTREF/> DHS believes this approach maximiz ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 46k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━