[Federal Register Volume 68, Number 31 (Friday, February 14, 2003)]
[Rules and Regulations]
[Pages 7441-7443]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-3574]


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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: 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 Section 8136 of 
the Defense Appropriations Act for Fiscal Year 2003. Section 8136 
requires the acquisition of domestic fish,

[[Page 7442]]

shellfish, and seafood, to include fish, shellfish, and seafood 
manufactured or processed, or contained in foods manufactured or 
processed, in the United States.

DATES: Effective date: February 14, 2003.
    Comment date: Comments on the interim rule should be submitted to 
the address shown below on or before April 15, 2003, to be considered 
in the formation of the final rule.

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: dfars@acq.osd.mil. 
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

    This interim rule relates to application of the Berry Amendment (10 
U.S.C. 2533a), which requires the acquisition of certain items from 
domestic sources. The Berry Amendment restriction on food is 
implemented in the DFARS at 225.7002 and in the clause at 252.225-7012, 
Preference for Certain Domestic Commodities. DoD generally must buy 
foods grown or produced in the United States (DFARS 225.7002-1(a)(1)), 
but there is an exception for the acquisition of foods manufactured or 
processed in the United States, regardless of where the foods (and any 
component if applicable) were grown or produced (10 U.S.C. 2533a(f); 
DFARS 225.7002-2(j)).
    Section 8136 of the Defense Appropriations Act for Fiscal Year 2003 
(Pub. L. 107-248) makes the exception at 10 U.S.C. 2533a(f) 
inapplicable to fish, shellfish, and seafood products. Section 8136 is 
also specifically applicable to contracts and subcontracts for the 
procurement of commercial items.
    Therefore, this interim rule revises DFARS 225.7002-2(j) and 
252.225-7012(c)(3) to require the application of domestic source 
requirements to fish, shellfish, and seafood manufactured or processed 
in the United States, and fish, shellfish, and seafood contained in 
foods manufactured or processed in the United States.
    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 rule may 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. DOD has prepared an Initial 
Regulatory Flexibility Analysis, which is summarized as follows:
    This interim rule amends the DFARS to implement section 8136 of the 
Defense Appropriations Act for Fiscal Year 2003. Section 8136 makes 10 
U.S.C. 2533a(f) inapplicable to fish, shellfish, and seafood products. 
10 U.S.C. 2533a(f) is an exception to domestic source requirements for 
foods manufactured or processed in the United States. The objective of 
the rule is to prohibit DoD acquisition of foreign fish, shellfish, and 
seafood, even if processed or manufactured in the United States. The 
rule will apply to all suppliers, processors, and manufacturers of 
seafood products sold to DoD. The rule should have a beneficial impact 
on domestic suppliers of fish, shellfish, and seafood.
    A copy of the IRFA 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 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.

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 section 8136 of the Defense Appropriations 
Act for Fiscal Year 2003 (Pub. L. 107-248). 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. Section 8136 became 
effective upon enactment, on October 23, 2002. Comments received in 
response to this interim rule will be considered in the formation of 
the final rule.

List of Subjects in 48 CFR Parts 225 and 252

    Government procurement.

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

    Therefore, 48 CFR parts 225 and 252 are amended 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, except that, in accordance with Section 8136 of 
the DoD Appropriations Act for Fiscal Year 2003 (Pub. L. 107-248), the 
following foods are subject to the restrictions in 225.7002-1: 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.
* * * * *

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 ``(FEB 2003)''; and
    b. In paragraph (b), in entry ``252.225-7012'', by removing ``(APR 
2002)'' and adding in its place ``(FEB 2003)''.

    4. Section 252.225-7012 is amended by revising the clause date and 
paragraph (c)(3) to read as follows:


252.225-7012  Preference for Certain Domestic Commodities.

* * * * *

[[Page 7443]]

Preference for Certain Domestic Commodities (Feb 2003)

* * * * *
    (c) * * *
    (3) To foods that have been manufactured or processed in the 
United States, its possessions, or Puerto Rico, regardless of where 
the foods (and any component if applicable) were grown or produced, 
except that this clause does apply to 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;
* * * * *
[FR Doc. 03-3574 Filed 2-13-03; 8:45 am]
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