[Federal Register Volume 68, Number 178 (Monday, September 15, 2003)]
[Proposed Rules]
[Pages 53945-53946]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-23342]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
48 CFR Parts 225 and 252
[DFARS Case 2002-D034]
Defense Federal Acquisition Regulation Supplement; Fish,
Shellfish, and Seafood Products
AGENCY: Department of Defense (DoD).
ACTION: Proposed rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to further implement Section 8136 of the
Defense Appropriations Act for Fiscal Year 2003. Section 8136 requires
the acquisition of domestic fish, shellfish, and seafood, to include
fish, shellfish, and seafood manufactured or processed, or contained in
foods manufactured or processed, in the United States. This proposed
rule contains clarifications to the interim rule published on February
14, 2003.
DATES: DoD will consider all comments received by November 14, 2003.
ADDRESSES: Respondents may submit comments directly on the World Wide
Web at http://emissary.acq.osd.mil/dar/dfars.nsf/pubcomm. As an
alternative, respondents may e-mail comments to: [email protected].
Please cite DFARS Case 2002-D034 in the subject line of e-mailed
comments.
Respondents that cannot submit comments using either of the above
methods may submit comments to: Defense Acquisition Regulations
Council, Attn: Ms. Amy Williams, OUSD (AT&L) DPAP (DAR), IMD 3C132,
3062 Defense Pentagon, Washington, DC 20301-3062; facsimile (703) 602-
0350. Please cite DFARS Case 2002-D034.
At the end of the comment period, interested parties may view
public comments on the World Wide Web at http://emissary.acq.osd.mil/dar/dfars.nsf.
FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, (703) 602-0328.
SUPPLEMENTARY INFORMATION:
A. Background
DoD published an interim rule at 68 FR 7441 on February 14, 2003,
to implement Section 8136 of the Defense Appropriations Act for Fiscal
Year 2003 (Pub. L. 107-248). Section 8136 relates to application of 10
U.S.C. 2533a (the Berry Amendment), which prohibits DoD from acquiring
certain items unless they are grown, reprocessed, reused, or produced
in the United States. 10 U.S.C. 2533a(f) provides an exception from
this prohibition for foods manufactured or processed in the United
States. Section 8136 of Public Law 107-248 makes the exception at 10
U.S.C. 2533a(f) inapplicable to fish, shellfish, and seafood products.
The interim rule published on February 14, 2003, amended DFARS
225.7002-2 and the clause at DFARS 252.225-7012 to add requirements for
the acquisition of domestic fish, shellfish, and seafood in accordance
with Section 8136 of Public Law 107-248.
Eight respondents submitted comments on the interim rule. Four
respondents concurred with the rule. A discussion of comments received
from the other respondents is provided below. As a result of the
comments, DoD has made changes to the rule and is requesting additional
public comments on those changes.
1. Comment: The rule does not provide a definition or other
guidance for determining which items qualify as ``domestic'' fish,
shellfish, and seafood products and thus are deemed to have been grown,
reprocessed, reused, or produced in the United States. Nor is there a
discussion whether domestic fish, shellfish, and seafood would include
those caught by U.S.-flag or U.S.-owned vessels, or whether the
domestic restriction is intended to focus on the place where the fish,
shellfish, and seafood may be caught.
DoD Response: To clarify this issue, the proposed rule includes a
new paragraph (d) in the clause at 252.225-7012 to address domestic
requirements for fish, shellfish, and seafood. These requirements are
based on the definition of ``A good wholly obtained or produced'' found
in United States Customs Service regulations at 19 CFR 102.1(g).
2. Comment: The rule does not define the intended geographic limit
of ``United States'' in which the fish, shellfish, and seafood must be
manufactured or processed to qualify as domestic. Neither DFARS 225.003
nor DFARS 225.7001 defines ``United States.'' FAR 25.003 defines
``United States'' to include ``the 50 States and the District of
Columbia, U.S. territories and possessions, Puerto Rico, the Northern
Mariana Islands, and any other place subject to U.S. jurisdiction,''
while DFARS 252.225-7012(b) refers to products from the ``United
States, its possessions, or Puerto Rico.''
DoD Response: After issuance of the interim rule, the FAR was
amended to clarify use of the term ``United States'' (FAC 2001-14; 68
FR 28079, May 22, 2003). This proposed rule amends the clause at
252.225-7012 to add a definition of ``United States'' that is
consistent with the definition presently found in FAR 25.003.
Note: DoD assumes that the respondent meant ``produced'' rather
than ``manufactured or processed,'' because the point of this rule
is that manufacturing or processing fish, shellfish, or seafood in
the United States is not sufficient to meet the domestic source
requirements of the law.
3. Comment: The rule makes the new prohibition applicable to all
purchases of fish or seafood products and, therefore, makes the other
statutory exceptions (at 225.7002-2(a), (b), (d), (e), (f), (g), and
(h)) inapplicable to such purchases.
DoD Response: The rule was not intended to make all other Berry
Amendment exceptions inapplicable to fish, shellfish, and seafood
products. Therefore, the proposed rule revises the text at 225.7002-
2(j) and 252.225-7012(c) to clarify this point.
4. Comment: The Berry Amendment should be revised or repealed.
DoD Response: This comment is outside the scope of the case. DoD
has drafted this DFARS rule in accordance with existing statutory
requirements.
This rule was not subject to Office of Management and Budget review
under Executive Order 12866, dated September 30, 1993.
B. Regulatory Flexibility Act
This proposed rule is a clarification of the changes contained in
the interim DFARS rule published at 68 FR 7441 on February 14, 2003.
The initial regulatory flexibility analysis prepared for that rule
still applies. A copy of the analysis may be obtained from the address
specified herein. DoD invites comments from small businesses and other
interested parties. DoD also will consider comments from small entities
concerning the affected DFARS subparts in accordance with 5 U.S.C. 610.
Such comments should be submitted
[[Page 53946]]
separately and should cite DFARS Case 2002-D034.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the rule does
not impose any information collection requirements that require the
approval of the Office of Management and Budget under 44 U.S.C. 3501,
et seq.
List of Subjects in 48 CFR Parts 225 and 252
Government procurement.
Michele P. Peterson,
Executive Editor, Defense Acquisition Regulations Council.
Therefore, DoD proposes to amend 48 CFR Parts 225 and 252 as
follows:
1. The authority citation for 48 CFR Parts 225 and 252 continues to
read as follows:
Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.
PART 225--FOREIGN ACQUISITION
2. Section 225.7002-2 is amended by revising paragraph (j) to read
as follows:
225.7002-2 Exceptions.
* * * * *
(j) Acquisitions of foods manufactured or processed in the United
States, regardless of where the foods (and any component if applicable)
were grown or produced. However, in accordance with Section 8136 of the
DoD Appropriations Act for Fiscal Year 2003 (Pub. L. 107-248), this
exception does not apply to fish, shellfish, or seafood manufactured or
processed in the United States or fish, shellfish, or seafood contained
in foods manufactured or processed in the United States.
* * * * *
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
252.212-7001 [Amended]
3. Section 252.212-7001 is amended as follows:
a. By revising the clause date to read ``(XXX 2003)''; and
b. In paragraph (b), in entry ``252.225-7012'', by removing ``(FEB
2003)'' and adding in its place ``(XXX 2003)''.
4. Section 252.225-7012 is amended as follows:
a. By revising the clause date to read ``(XXX 2003)'';
b. By adding paragraphs (a)(3) and (a)(4);
c. By revising paragraph (b) introductory text and paragraph
(c)(3); and
d. By adding paragraph (d) to read as follows:
252.225-7012 Preference for Certain Domestic Commodities.
* * * * *
(a) * * *
(3) United States means the 50 States, the District of Columbia,
and outlying areas.
(4) U.S.-flag vessel means a vessel of the United States or
belonging to the United States, including any vessel registered or
having national status under the laws of the United States.
(b) The Contractor shall deliver under this contract only such of
the following items, either as end products or components, that have
been grown, reprocessed, reused, or produced in the United States:
* * * * *
(c) * * *
(3) To foods, other than fish, shellfish, or seafood, that have
been manufactured or processed in the United States, regardless of
where the foods (and any component if applicable) were grown or
produced. Fish, shellfish, or seafood manufactured or processed in the
United States and fish, shellfish, or seafood contained in foods
manufactured or processed in the United States shall be provided in
accordance with paragraph (d) of this clause;
* * * * *
(d)(1) Fish, shellfish, and seafood delivered under this contract,
or contained in foods delivered under this contract--
(i) Shall be taken from the sea by U.S.-flag vessels; or
(ii) If not taken from the sea, shall be obtained from fishing
within the United States; and
(2) Any processing or manufacturing of the fish, shellfish, or
seafood shall be performed on a U.S.-flag vessel or in the United
States.
[FR Doc. 03-23342 Filed 9-12-03; 8:45 am]
BILLING CODE 5001-08-P