[Federal Register Volume 62, Number 26 (Friday, February 7, 1997)]
[Rules and Regulations]
[Pages 5779-5780]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-3019]


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DEPARTMENT OF DEFENSE

48 CFR Parts 212, 225, 244, and 252

[DFARS Case 96-D333]


Defense Federal Acquisition Regulation Supplement; Application of 
Berry Amendment

AGENCY: Department of Defense (DoD).

ACTION: Interim rule with request for comments.

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SUMMARY: The Director of Defense Procurement has issued an interim rule 
amending the Defense Federal Acquisition Regulation Supplement (DFARS) 
to implement Section 8109 of the National Defense Appropriations Act 
for Fiscal Year 1997. Section 8109 provides that, in applying the Berry 
Amendment (10 U.S.C. 2241 note), the term ``synthetic fabric and coated 
synthetic fabric'' shall be deemed to include all textile fibers and 
yarns that are for use in such fabrics; and that the domestic source 
restrictions of the Berry Amendment shall apply to contracts and 
subcontracts for the procurement of commercial items.

DATE: Effective date: February 7, 1997.
    Comment date: Comments on the interim rule should be submitted in 
writing to the address shown below on or before April 8, 1997, to be 
considered in the formulation of the final rule.

ADDRESSES: Interested parties should submit written comments to: 
Defense Acquisition Regulations Council, Attn: Ms. Amy Williams, PDUSD 
(A&T) DP (DAR), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-
3062. Telefax number (703) 602-0350. Please cite DFARS Case 96-D333 in 
all correspondence related to this issue.

FOR FURTHER INFORMATION CONTACT:
Ms. Amy Williams, (703) 602-0131.

SUPPLEMENTARY INFORMATION: 

A. Background

    This interim rule amends the DFARS to implement Section 8109 of the 
National Defense Appropriations Act for Fiscal Year 1997 (Pub. L. 104-
208). This rule extends the application of the Berry Amendment domestic 
source restrictions to textile fibers and yarns that are for use in 
synthetic fabric and coated synthetic fabric; requires flowdown of the 
Berry Amendment restrictions to subcontracts for the procurement of 
commercial items; and clarifies the application of Berry Amendment 
restrictions through the use of Federal supply classification codes.

B. Regulatory Flexibility Act

    This interim rule is expected to have a significant positive 
economic impact on a substantial number of small entities within the 
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. An 
Initial Regulatory Flexibility Analysis has been prepared and is 
summarized as follows:
    This interim rule amends the DFARS to implement Section 8109 of the 
National Defense Appropriations Act for Fiscal Year 1997 (Pub. L. 104-
208). The aspect of the rule that is expected to benefit small entities 
is the requirement for flowdown of the Berry Amendment restrictions to 
subcontracts for the procurement of commercial items. In particular, 
this rule will lessen foreign competition in commercial subcontracts 
for the acquisition of items containing cotton and other natural fiber 
products or wool (whether in the form of fiber or yarn or contained in 
fabrics, materials, or manufactured articles); woven silk or woven silk 
blends; spun silk yarn for cartridge cloth; canvas products; and 
certain specialty metals. Statistics are not readily available 
pertaining to the number of subcontracts for the acquisition of such 
items awarded to small entities under DoD prime contracts. This rule 
contains no new reporting, recordkeeping, or other compliance 
requirements for large or small entities; and does not duplicate, 
overlap, or conflict with any other Federal rules. The rule is expected 
to have a positive impact on domestic sources of certain commodities 
and, therefore, applies equally to both large and small entities. There 
are no practical alternatives that will meet the statutory requirements 
implemented in this rule.
    A copy of the Initial Regulatory Flexibility Analysis has been 
submitted to the Chief Counsel for Advocacy of the Small Business 
Administration. Interested parties may obtain a copy of the analysis 
from the address specified herein. Comments are invited from small 
businesses and other interested parties. Comments from small entities 
concerning the affected DFARS subparts also will be considered in 
accordance with 5 U.S.C. 610. Such comments should be submitted 
separately and should cite DFARS Case 96-D333 in correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because this interim 
rule does not contain any information collection requirements that 
require 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 this 
interim rule prior to affording the public an opportunity to comment. 
This action is necessary because Section 8109 of the National Defense 
Appropriations Act for Fiscal Year 1997 (Pub. L. 104-208) was effective 
upon enactment on September 30, 1996. Comments received in response to 
the publication of this interim rule will be considered in formulating 
the final rule.

List of Subjects in 48 CFR Parts 212, 225, 244, and 252

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

    Therefore, 48 CFR Parts 212, 225, 244, and 252 are amended as 
follows:

[[Page 5780]]

    1. The authority citation for 48 CFR Parts 212, 225, 244, and 252 
continues to read as follows:

    Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.

PART 212--ACQUISITION OF COMMERCIAL ITEMS

    1a. The heading for part 212 is revised to read as set forth above.


212.504  [Amended]

    2. Section 212.504 is amended by removing and reserving paragraph 
(a)(i).

PART 225--FOREIGN ACQUISITION

    3. Section 225.70002-1 is amended by revising the introductory text 
of paragraph (a) and paragraphs (a)(7) and (a)(9) to read as follows:


225.7002-1  Restrictions.

    (a) In accordance with Section 9005 of Public Law 102-396, as 
amended (10 U.S.C. 2241 note, Limitations on Food, Clothing, and 
Specialty Metals Not Produced in the United States), and Section 8109 
of Public Law 104-208, do not acquire supplies consisting in whole or 
in part of any of the following, that have not been grown or produced 
in the United States or its possessions--
* * * * *
    (7) Synthetic fabric or coated synthetic fabric, including all 
textile fibers and yarns that are for use in such fabrics;
* * * * *
    (9) Any item of individual equipment (Federal Supply Classification 
8465) manufactured from or containing any of the listed fibers, yarns, 
fabrics, or materials.
* * * * *
    4. Section 225.7002-2 is amended by revising paragraphs (e) and (j) 
to read as follows:


225.7002-2  Execeptions.

* * * * *
    (e) Acquisitions not exceeding the simplified acquisition 
threshold.
* * * * *
    (j) Purchase of fibers and yarns that are for use in synthetic 
fabric or coated synthetic fabric, if such fabric is to be used as a 
component of an end item not classified in Federal Supply Group 83, 
Textile/leather/furs/apparel/findings/tents/flags, or Federal Supply 
Group 84, Clothing, Individual Equipment and Insignia.

PART 244--SUBCONTRACTING POLICIES AND PROCEDURES

    5. Subpart 244.4 is added to read as follows:

Subpart 244.4--Subcontracts for Commercial Items and Commercial 
Components

Sec.
244.403  Contract clause.

Subpart 244.4--Subcontracts for Commercial Items and Commercial 
Components


244.403   Contract clause.

    Use the clause at 252.244-7000, Subcontracts for Commercial Items 
and Commercial Components (DoD Contracts), in solicitations and 
contract for supplies or services other than commercial items, that 
contain the clause at 252.225-7014, Preference for Domestic Specialty 
Metals, Alternate I.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    6. Section 252.212-7001 is amended by revising the clause date to 
read ``(FEB 1997)''; and by adding paragraph (c) to the clause to read 
as follows:


252.212-7001   Contract terms and conditions required to implement 
statutes or Executive Orders applicable to Defense acquisitions of 
commercial items.

 * * * * *
    (c) In addition to the clauses listed in paragraph (e) of the 
Contract Terms and Conditions Required to Implement Statutes or 
Executive Orders-Commercial Items clause of this contract, the 
Contractor shall include the terms of the following clause, if 
applicable, in subcontracts for commercial items or commercial 
components, awarded at any tier under this contract:

    252.225-7014, Preference for Domestic Specialty Metals, 
Alternate I (10 U.S.C. 2241 note).

(End of clause)

    7. Section 252.225-7012 is amended by revising the clause date to 
read ``(FEB 1997)''; and by revising paragraphs (a)(7), (a)(10), and 
(b)(4) of the clause to read as follows:


252.225-7012   Preference for certain domestic commodities.

 * * * * *
    (a) * * *
    (7) Synthetic fabric, and coated synthetic fabric, including all 
textile fibers and yarns that are for use in such fabrics;
 * * * * *
    (10) Any item of individual equipment (Federal Supply 
Classification 8465) manufactured from or containing such fibers, 
yarns, fabrics, or materials.
    (b) * * *
    (4) To purchases of fibers and yarns that are for use in 
synthetic fabric or coated synthetic fabric, if such fabric is to be 
used as a component of an end item not classified in Federal Supply 
Group 83, Textile/leather/furs/apparel/findings/tents/flags, or 
Federal Supply Group 84, Clothing, Individual Equipment and 
Insignia.

(End of clause)
    8. Section 252.225-7014 is amended by revising the clause date to 
read ``(FEB 1997)''; and by revising paragraph (c)(4) of the clause and 
Alternate I to read as follows:


252.225-7014   Preference for domestic specialty metals.

 * * * * *
    (c) * * *
    (4) The specialty metal is purchased by a subcontractor at any 
tier.
(End of clause)

Alternate I (Feb 1997)

    As prescribed in 225.7002-3(b), substitute the following 
paragraph (c) for paragraph (c) of the basic clause, and add the 
following paragraph (d) to the basic clause:
    (c) This clause does not apply to the extent that--
    (1) The Secretary or designee determines that a satisfactory 
quality and sufficient quantity of such articles cannot be acquired 
when needed at U.S. market prices;
    (2) The acquisition is for an end product of a country listed in 
subsection 225.872-1 of the Defense Federal Acquisition Regulation 
Supplement; or
    (3) The acquisition is necessary to comply with agreements with 
foreign governments requiring the United States to purchase supplies 
from foreign sources to offset sales made by the U.S. Government or 
U.S. firms under approved programs.
    (d) The Contractor agrees to include the terms of this clause, 
including this paragraph (d), in every subcontract or purchase order 
awarded under this contract unless the item being purchased contains 
no specialty metals.

    9. Section 252.244-7000 is added to read as follows:


252.244-7000   Subcontracts for commercial items and commercial 
components (DoD contracts).

    As prescribed in 244.403, use the following clause:

Subcontracts for Commercial Items and Commercial Components (DoD 
Contracts) (Feb 1997)

    In addition to the clauses listed in paragraph (c) of the 
Subcontracts for Commercial Items and Commercial Components clause 
of this contract, the Contractor shall include the terms of the 
following clause, if applicable, in subcontracts for commercial 
items or commercial components, awarded at any tier under this 
contract:
    252.225-7014, Preference for Domestic Specialty Metals, 
Alternate I (10 U.S.C. 2241 note).
(End of clause)
[FR Doc. 97-3019 Filed 2-6-97; 8:45 am]
BILLING CODE 5000-04-M