[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]


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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: Proposed rule with request for comments.

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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