[Federal Register Volume 67, Number 81 (Friday, April 26, 2002)]
[Rules and Regulations]
[Pages 20697-20699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-10094]
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DEPARTMENT OF DEFENSE
48 CFR Parts 225 and 252
[DFARS Case 2002-D002]
Defense Federal Acquisition Regulation Supplement; Codification
and Modification of Berry Amendment
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 832 of
the National Defense Authorization Act for Fiscal Year 2002. Section
832 codifies and modifies the provision of law known as the ``Berry
Amendment,'' which requires the acquisition of certain items from
domestic sources.
EFFECTIVE DATE: April 26, 2002.
Comment date: Comments on the interim rule should be submitted to
the address shown below on or before June 25, 2002, 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: [email protected].
Please cite DFARS Case 2002-D002 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)DP(DAR), IMD 3C132, 3062
Defense Pentagon, Washington, DC 20301-3062; facsimile (703) 602-0350.
Please cite DFARS Case 2002-D002.
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 implements Section 832 of the National Defense
Authorization Act for Fiscal Year 2002 (Public Law 107-107). Section
832 codifies and makes minor modifications to the provision of law
known as the Berry Amendment (formerly 10 U.S.C. 2241 note, Limitations
on Procurement of Food, Clothing, and Specialty Metals Not Produced in
the United States; now codified at 10 U.S.C. 2533a).
The rule updates statutory references in the DFARS text, and
clarifies the DFARS text by specifying that--
The domestic source requirements apply to listed items
acquired either as end products or as components of end products;
For foods manufactured or processed in the United States,
an exception to the domestic source requirement applies regardless of
where the foods (and any component) were grown or produced; and
The clause at 252.225-7012, Preference for Certain
Domestic Commodities, does not apply to end products incidentally
incorporating minor amounts of cotton, other natural fibers, or wool.
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 rule is
intended to clarify existing policy pertaining to the acquisition of
certain items from domestic sources. Therefore, DoD has not prepared 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 2002-D002.
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 832 of the National Defense
Authorization Act for Fiscal Year 2002 (Public Law 107-107). Section
832 codifies and modifies the provision of law known as the ``Berry
Amendment,'' which requires the acquisition of certain items from
domestic sources. Section 832 became effective upon enactment, on
December 28, 2001. 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 225.7001 is amended by removing paragraph (c);
redesignating paragraph (b) as paragraph (c); and adding a new
paragraph (b) to read as follows:
225.7001 Definitions.
* * * * *
(b) Component and end product are defined in the clause at 252.225-
7012, Preference for Certain Domestic Commodities.
* * * * *
3. Sections 225.7002-1 and 225.7002-2 are revised to read as
follows:
225.7002-1 Restrictions.
The following restrictions implement 10 U.S.C. 2533a. Except as
provided in subsection 225.7002-2, do not acquire--
(a) Any of the following items, either as end products or
components, unless the items have been grown, reprocessed, reused, or
produced in the United States:
(1) Food.
(2) Clothing.
(3) Tents, tarpaulins, or covers.
(4) Cotton and other natural fiber products.
(5) Woven silk or woven silk blends.
(6) Spun silk yarn for cartridge cloth.
(7) Synthetic fabric or coated synthetic fabric, including all
textile fibers and yarns that are for use in such fabrics.
(8) Canvas products.
(9) Wool (whether in the form of fiber or yarn or contained in
fabrics, materials, or manufactured articles).
(10) Any item of individual equipment (Federal Supply Class 8465)
manufactured from or containing any of the fibers, yarns, fabrics, or
materials listed in this paragraph (a).
(b) Specialty metals, including stainless steel flatware, unless
the
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metals were melted in steel manufacturing facilities located within the
United States.
(c) Hand or measuring tools, unless the tools were produced in the
United States.
225.7002-2 Exceptions.
Acquisitions in the following categories are not subject to the
restrictions in 225.7002-1:
(a) Acquisitions at or below the simplified acquisition threshold.
(b) Acquisitions of any of the items in 225.7002-1(a) or (b), if
the Secretary concerned determines that items grown, reprocessed,
reused, or produced in the United States cannot be acquired as and when
needed in a satisfactory quality and sufficient quantity at U.S. market
prices.
(c) Acquisitions of items listed in FAR 25.104(a), unless the items
are hand or measuring tools.
(d) Acquisitions outside the United States in support of combat
operations.
(e) Acquisitions of perishable foods by activities located outside
the United States for personnel of those activities.
(f) Emergency acquisitions by activities located outside the United
States for personnel of those activities.
(g) Acquisitions by vessels in foreign waters.
(h) Acquisitions of items specifically for commissary resale.
(i) Acquisitions of end products incidentally incorporating cotton,
other natural fibers, or wool, for which the estimated value of the
cotton, other natural fibers, or wool--
(1) Is not more than 10 percent of the total price of the end
product; and
(2) Does not exceed the simplified acquisition threshold.
(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.
(k) Purchases of specialty metals by subcontractors at any tier for
programs other than--
(1) Aircraft;
(2) Missile and space systems;
(3) Ships;
(4) Tank-automotive;
(5) Weapons; and
(6) Ammunition.
(l) Acquisitions of specialty metals and chemical warfare
protective clothing when the acquisition furthers an agreement with a
qualifying country (see 225.872).
(m) Acquisitions of fibers and yarns that are for use in synthetic
fabric or coated synthetic fabric (but not the purchase of the
synthetic or coated synthetic fabric itself), if--
(1) The fabric is to be used as a component of an end product that
is not a textile product. Examples of textile products, made in whole
or in part of fabric, include--
(i) Draperies, floor coverings, furnishings, and bedding (Federal
Supply Group 72, Household and Commercial Furnishings and Appliances);
(ii) Items made in whole or in part of fabric in Federal Supply
Group 83, Textile/leather/furs/apparel/findings/tents/flags, or Federal
Supply Group 84, Clothing, Individual Equipment and Insignia;
(iii) Upholstered seats (whether for household, office, or other
use); and
(iv) Parachutes (Federal Supply Class 1670); or
(2) The fibers and yarns are para-aramid fibers and yarns
manufactured in--
(i) The Netherlands; or
(ii) Another qualifying country (see 225.872) if the Under
Secretary of Defense (Acquisition, Technology, and Logistics) makes a
determination in accordance with Section 807 of Public Law 105-261
that--
(A) Procuring articles that contain only para-aramid fibers and
yarns manufactured from suppliers within the United States would result
in sole source contracts or subcontracts for the supply of such para-
aramid fibers and yarns;
(B) Such sole source contracts or subcontracts would not be in the
best interest of the Government or consistent with the objectives of
the Competition in Contracting Act (10 U.S.C. 2304); and
(C) The qualifying country permits U.S. firms that manufacture
para-aramid fibers and yarns to compete with foreign firms for the sale
of para-aramid fibers and yarns in that country.
4. Section 225.7002-3 is amended by revising the introductory text
and paragraphs (a) and (b) to read as follows:
225.7002-3 Contract clauses.
Unless an exception applies--
(a) Use the clause at 252.225-7012, Preference for Certain Domestic
Commodities, in solicitations and contracts exceeding the simplified
acquisition threshold.
(b)(1) Use the clause at 252.225-7014, Preference for Domestic
Specialty Metals, in solicitations and contracts exceeding the
simplified acquisition threshold that require delivery of an article
containing specialty metals.
(2) Use the clause with its Alternate I in solicitations and
contracts exceeding the simplified acquisition threshold requiring
delivery, for one of the following major programs, of an article
containing specialty metals:
(i) Aircraft.
(ii) Missile and space systems.
(iii) Ships.
(iv) Tank-automotive.
(v) Weapons.
(vi) Ammunition.
* * * * *
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
252.212-7001 [Amended]
5. Section 252.212-7001 is amended as follows:
a. By revising the clause date to read ``APR 2002'';
b. In paragraph (b), in the entry ``252.225-7012'', by removing
``(AUG 2000) (10 U.S.C. 2241 note)'' and adding in its place ``(APR
2002) (10 U.S.C. 2533a)'';
c. In paragraph (b), in the entries ``252.225-7014'' and ``252.225-
7015'', by removing ``(10 U.S.C. 2241 note)'' and adding in its place
``(10 U.S.C. 2533a)''; and
d. In paragraph (c), in the entry ``252.225-7014'', by removing
``(10 U.S.C. 2241 note)'' and adding in its place ``(10 U.S.C.
2533a)''.
6. Section 252.225-7012 is revised to read as follows:
252.225-7012 Preference for Certain Domestic Commodities.
As prescribed in 225.7002-3(a), use the following clause:
Preference for Certain Domestic Commodities (Apr 2002)
(a) Definitions. As used in this clause--
(1) Component means any item supplied to the Government as part
of an end product or of another component.
(2) End product means supplies delivered under a line item of
this contract.
(b) The Contractor shall deliver under this contract only such
of the following items, either as end products or components, that
have been been grown, reprocessed, reused, or produced in the United
States, its possessions, or Puerto Rico:
(1) Food.
(2) Clothing.
(3) Tents, tarpaulins, or covers.
(4) Cotton and other natural fiber products.
(5) Woven silk or woven silk blends.
(6) Spun silk yarn for cartridge cloth.
(7) Synthetic fabric, and coated synthetic fabric, including all
textile fibers and yarns that are for use in such fabrics.
(8) Canvas products.
(9) Wool (whether in the form of fiber or yarn or contained in
fabrics, materials, or manufactured articles).
(10) Any item of individual equipment (Federal Supply Class
8465) manufactured from or containing fibers, yarns, fabrics, or
materials listed in this paragraph (b).
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(c) This clause does not apply--
(1) To items listed in section 25.104(a) of the Federal
Acquisition Regulation (FAR), or other items for which the
Government has determined that a satisfactory quality and sufficient
quantity cannot be acquired as and when needed at U.S. market
prices;
(2) To end products incidentally incorporating cotton, other
natural fibers, or wool, for which the estimated value of the
cotton, other natural fibers, or wool--
(i) Is not more than 10 percent of the total price of the end
product; and
(ii) Does not exceed the simplified acquisition threshold in FAR
part 2;
(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;
(4) To chemical warfare protective clothing produced in the
countries listed in subsection 225.872-1 of the Defense FAR
Supplement; or
(5) To fibers and yarns that are for use in synthetic fabric or
coated synthetic fabric (but does apply to the synthetic or coated
synthetic fabric itself), if--
(i) The fabric is to be used as a component of an end product
that is not a textile product. Examples of textile products, made in
whole or in part of fabric, include--
(A) Draperies, floor coverings, furnishings, and bedding
(Federal Supply Group 72, Household and Commercial Furnishings and
Appliances);
(B) Items made in whole or in part of fabric in Federal Supply
Group 83, Textile/leather/furs/apparel/findings/ tents/flags, or
Federal Supply Group 84, Clothing, Individual Equipment and
Insignia;
(C) Upholstered seats (whether for household, office, or other
use); and
(D) Parachutes (Federal Supply Class 1670); or
(ii) The fibers and yarns are para-aramid fibers and yarns
manufactured in the Netherlands.
(End of clause)
[FR Doc. 02-10094 Filed 4-25-02; 8:45 am]
BILLING CODE 5001-08-U