[Federal Register Volume 69, Number 93 (Thursday, May 13, 2004)]
[Rules and Regulations]
[Pages 26508-26509]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-10880]


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DEPARTMENT OF DEFENSE

48 CFR Parts 225 and 252

[DFARS Case 2003-D099]


Defense Federal Acquisition Regulation Supplement; Berry 
Amendment Changes

AGENCY: Department of Defense (DoD).

ACTION: Interim rule with request for comments.

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SUMMARY: DoD has issued an interim rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to implement Sections 826 and 
827 of the National Defense Authorization Act for Fiscal Year 2004. 
Sections 826 and 827 provide exceptions to the domestic source 
requirements of the Berry Amendment. Section 826 applies to the 
acquisition of food, specialty metals, and hand or measuring tools 
needed to support contingency operations or to fulfill other urgent 
requirements. Section 827 applies to the acquisition of waste and 
byproducts of cotton or wool fiber for use in the production of 
propellants and explosives.

DATES: Effective date: May 13, 2004.
    Comment date: Comments on the interim rule should be submitted to 
the address shown below on or before July 12, 2004, to be considered in 
the formation of the final rule.

ADDRESSES: Respondents may submit comments via the Internet at http://emissary.acq.osd.mil/dar/dfars.nsf/pubcom. As an alternative, 
respondents may e-mail comments to: [email protected]. Please cite DFARS 
Case 2003-D099 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 2003-D099.
    At the end of the comment period, interested parties may view 
public comments on the Internet at http://emissary.acq.osd.mil/dar/dfars.nsf.

FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, (703) 602-0328.

SUPPLEMENTARY INFORMATION:

A. Background

    DFARS 225.7002-1 contains requirements for the acquisition of 
certain items from domestic sources in accordance with the Berry 
Amendment (10 U.S.C. 2533a). DFARS 225.7002-2 provides exceptions to 
these requirements. This interim rule adds new exceptions to DFARS 
225.7002-2 to implement Sections 826 and 827 of the National Defense 
Authorization Act for Fiscal Year 2004 (Pub. L. 108-136). Section 826 
applies to the acquisition of food, specialty metals, and hand or 
measuring tools when needed to support contingency operations or when 
the use of other than competitive procedures has been approved on the 
basis of unusual and compelling urgency. Section 827 applies to the 
acquisition of waste and byproducts of cotton or wool fiber for use in 
the production of propellants and explosives. A corresponding change is 
made to the clause at DFARS 252.225-7012.
    This rule was not subject to Office of Management and Budget review 
under Executive Order 12866, dated September 30, 1993.

B. Regulatory Flexibility Act

    DoD does not expect this rule to have a significant economic impact 
on a substantial number of small entities within the meaning of the 
Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the 
exceptions to domestic source requirements authorized by the rule are 
limited to acquisitions of items needed to support contingency 
operations, to fulfill requirements that are of unusual and compelling 
urgency, or to produce propellants and explosives. Therefore, DoD has 
not performed an initial regulatory flexibility analysis. 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 separately and should cite DFARS Case 2003-D099.

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.

D. Determination To Issue an Interim Rule

    A determination has been made under the authority of the Secretary 
of Defense that urgent and compelling reasons exist to publish an 
interim rule prior to affording the public an opportunity to comment. 
This interim rule implements Sections 826 and 827 of the National 
Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136). 
Sections 826 and 827 provide exceptions to the domestic source 
requirements of the Berry Amendment (10 U.S.C. 2533a). Section 826 
applies to the acquisition of food, specialty metals, and hand or 
measuring tools needed to support contingency operations or to fulfill 
other urgent requirements. Section 827 applies to the acquisition of 
waste and byproducts of cotton or wool fiber for use in the production 
of propellants and explosives. Sections 826 and 827 became effective on 
November 24, 2003. Comments received in response to this interim rule 
will be considered in the formation of the final rule.

[[Page 26509]]

List of Subjects in 48 CFR Parts 225 and 252

    Government procurement.

Michele P. Peterson,
Executive Editor, Defense Acquisition Regulations Council.

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Therefore, 48 CFR Parts 225 and 252 are amended as follows:
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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

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2. Section 225.7002-2 is amended as follows:
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a. By redesignating paragraphs (f) through (i) and (j) through (m) as 
paragraphs (g) through (j) and (l) through (o), respectively; and
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b. By adding new paragraphs (f) and (k) to read as follows:


225.7002-2  Exceptions.

* * * * *
    (f) Acquisitions of food, specialty metals, or hand or measuring 
tools--
    (1) In support of contingency operations; or
    (2) For which the use of other than competitive procedures has been 
approved on the basis of unusual and compelling urgency in accordance 
with FAR 6.302-2.
* * * * *
    (k) Acquisitions of waste and byproducts of cotton or wool fiber 
for use in the production of propellants and explosives.
* * * * *

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES


252.212-7001  [Amended]

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3. Section 252.212-7001 is amended as follows:
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a. By revising the clause date to read ``(MAY 2004)''; and
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b. In paragraph (b), in entry ``252.225-7012'', by removing ``(FEB 
2003)'' and adding in its place ``(MAY 2004)''.

0
4. Section 252.225-7012 is amended as follows:
0
a. By revising the clause date to read ``(MAY 2004)'';
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b. By redesignating paragraphs (c)(3) through (5) as paragraphs (c)(4) 
through (6), respectively; and
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c. By adding a new paragraph (c)(3) to read as follows:


252.225-7012  Preference for Certain Domestic Commodities.

* * * * *
    (c) * * *
    (3) To waste and byproducts of cotton or wool fiber for use in the 
production of propellants and explosives;
* * * * *
[FR Doc. 04-10880 Filed 5-12-04; 8:45 am]
BILLING CODE 5001-08-P