Section 397 - Requirements to buy certain items related to national security interests(a) DefinitionsIn this section:
(1) Covered itemThe term "covered item" means any of the following:
(A) Footwear provided as part of a uniform.(C) Holsters and tactical pouches.(D) Patches, insignia, and embellishments.(E) Chemical, biological, radiological, and nuclear protective gear.(F) Body armor components intended to provide ballistic protection for an individual, consisting of 1 or more of the following:(i) Soft ballistic panels.(ii) Hard ballistic plates.(iii) Concealed armor carriers worn under a uniform.(iv) External armor carriers worn over a uniform.(G) Any other item of clothing or protective equipment as determined appropriate by the Secretary.(2) Frontline operational componentThe term "frontline operational component" means any of the following entities of the Department:
(A) U.S. Customs and Border Protection.(B) U.S. Immigration and Customs Enforcement.(C) The United States Secret Service.(D) The Transportation Security Administration.(E) The Federal Protective Service.(G) The Federal Law Enforcement Training Centers.(H) The Cybersecurity and Infrastructure Security Agency.(b) Requirements(1) In generalThe Secretary shall ensure that any procurement of a covered item for a frontline operational component meets the following criteria:
(A)(i) To the maximum extent possible, not less than one-third of funds obligated in a specific fiscal year for the procurement of such covered items shall be covered items that are manufactured or supplied in the United States by entities that qualify as small business concerns, as such term is described under section 632 of title 15.(ii) Covered items may only be supplied pursuant to subparagraph (A) to the extent that United States entities that qualify as small business concerns-(I) are unable to manufacture covered items in the United States; and(II) meet the criteria identified in subparagraph (B).(B) Each contractor with respect to the procurement of such a covered item, including the end-item manufacturer of such a covered item-(i) is an entity registered with the System for Award Management (or successor system) administered by the General Services Administration; and(ii) is in compliance with ISO 9001:2015 of the International Organization for Standardization (or successor standard) or a standard determined appropriate by the Secretary to ensure the quality of products and adherence to applicable statutory and regulatory requirements.(C) Each supplier of such a covered item with an insignia (such as any patch, badge, or emblem) and each supplier of such an insignia, if such covered item with such insignia or such insignia, as the case may be, is not produced, applied, or assembled in the United States, shall-(i) store such covered item with such insignia or such insignia in a locked area;(ii) report any pilferage or theft of such covered item with such insignia or such insignia occurring at any stage before delivery of such covered item with such insignia or such insignia; and(iii) destroy any such defective or unusable covered item with insignia or insignia in a manner established by the Secretary, and maintain records, for three years after the creation of such records, of such destruction that include the date of such destruction, a description of the covered item with insignia or insignia destroyed, the quantity of the covered item with insignia or insignia destroyed, and the method of destruction.(2) Waiver(A) In generalIn the case of a national emergency declared by the President under the National Emergencies Act (50 U.S.C. 1601 et seq.) or a major disaster declared by the President under section 5170 of title 42, the Secretary may waive a requirement in subparagraph (A), (B) or (C) of paragraph (1) if the Secretary determines there is an insufficient supply of a covered item that meets such requirement.
(B) NoticeNot later than 60 days after the date on which the Secretary determines a waiver under subparagraph (A) is necessary, the Secretary shall provide to the Committee on Homeland Security and Governmental Affairs and the Committee on Appropriations of the Senate and the Committee on Homeland Security, the Committee on Oversight and Reform, and the Committee on Appropriations of the House of Representatives notice of such determination, which shall include the following:
(i) Identification of the national emergency or major disaster declared by the President.(ii) Identification of the covered item for which the Secretary intends to issue the waiver.(iii) A description of the demand for the covered item and corresponding lack of supply from contractors able to meet the criteria described in subparagraph (B) or (C) of paragraph (1).(c) PricingThe Secretary shall ensure that covered items are purchased at a fair and reasonable price, consistent with the procedures and guidelines specified in the Federal Acquisition Regulation.
(d) ReportNot later than one year after December 23, 2022, and annually thereafter, the Secretary shall provide to the Committee on Homeland Security, the Committee on Oversight and Reform, the Committee on Small Business, and the Committee on Appropriations of the House of Representatives, and the Committee on Homeland Security and Governmental Affairs, the Committee on Small Business and Entrepreneurship, and the Committee on Appropriations of the Senate a briefing on instances in which vendors have failed to meet deadlines for delivery of covered items and corrective actions taken by the Department in response to such instances.
(e) Effective dateThis section applies with respect to a contract entered into by the Department or any frontline operational component on or after the date that is 180 days after December 23, 2022.
Pub. L. 107-296, title VIII, §836, as added Pub. L. 117-263, div. G, title LXXI, §7112(a), Dec. 23, 2022, 136 Stat. 3628.EDITORIAL NOTES
REFERENCES IN TEXTThe National Emergencies Act, referred to in subsec. (b)(2)(A), is Pub. L. 94-412, Sept. 14, 1976, 90 Stat. 1255, which is classified principally to chapter 34 (§1601 et seq.) of Title 50, War and National Defense. For complete classification of this Act to the Code, see Short Title note set out under section 1601 of Title 50 and Tables.
STATUTORY NOTES AND RELATED SUBSIDIARIES
CHANGE OF NAMECommittee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.
- Department
- The term "Department" means the Department of Homeland Security.
- Secretary
- The term "Secretary" means the Secretary of Homeland Security.
- Agency
- the term "Agency" means the Federal Emergency Management Agency;
- emergency management
- the term "emergency management" means the governmental function that coordinates and integrates all activities necessary to build, sustain, and improve the capability to prepare for, protect against, respond to, recover from, or mitigate against threatened or actual natural disasters, acts of terrorism, or other man-made disasters;