Defense Federal Acquisition Regulation Supplement; Codification and Modification of Berry Amendment (DFARS Case 2002-D002), 11354-11356 [E8-3946]
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Radio, Radio broadcasting.
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I
PART 73—RADIO BROADCAST
SERVICES
1. The authority citation for part 73
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Authority: 47 U.S.C. 154, 303, 334, 336.
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[FR Doc. E8–4028 Filed 2–29–08; 8:45 am]
BILLING CODE 6712–01–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 225 and 252
RIN 0750–AD76
Defense Federal Acquisition
Regulation Supplement; Codification
and Modification of Berry Amendment
(DFARS Case 2002–D002)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
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AGENCY:
SUMMARY: DoD has adopted as final,
with changes, 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 codified and
made modifications to the provision of
law known as the ‘‘Berry Amendment,’’
which requires the acquisition of certain
items from domestic sources.
DATES: Effective Date: March 3, 2008.
FOR FURTHER INFORMATION CONTACT: Ms.
Amy Williams, Defense Acquisition
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14:18 Feb 29, 2008
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Regulations System, OUSD (AT&L)
DPAP (DARS), IMD 3D139, 3062
Defense Pentagon, Washington, DC
20301–3062. Telephone 703–602–0328;
facsimile 703–602–7887. Please cite
DFARS Case 2002–D002.
SUPPLEMENTARY INFORMATION:
A. Background
DoD published an interim rule at 67
FR 20697 on April 26, 2002. The rule
amended the DFARS to implement
Section 832 of the National Defense
Authorization Act for Fiscal Year 2002
(Pub. L. 107–107). Section 832 codified
and made 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).
Twenty-two sources submitted
comments on the interim rule. A
discussion of the comments is provided
below:
1. Clothing, Fabrics, and Fibers
a. De minimis exception for cotton,
other natural fibers, or wool.
(1) Applicability of exception.
Comment: One respondent
commented on the applicability of the
exception in the interim rule at
225.7002–2(i) (now 225.7002–2(j)) for
incidental amounts of cotton, other
natural fibers, or wool. The respondent
stated that the exception should apply
only to the incidental amount of cotton,
other natural fibers, or wool, not to the
end item itself, if the end item is
otherwise subject to the Berry
Amendment. For example, a jacket of
synthetic fibers with cotton lining in the
pockets would still be subject to the
Berry Amendment with regard to origin
of the jacket as a whole. Only the cotton
lining of the pockets would be exempt.
DoD Response: DoD concurs and has
clarified this point in the final rule.
(2) Simplified acquisition threshold.
Comment: One respondent requested
that DoD revise the exception in the
interim rule at 225.7002–2(i) (now
225.7002–2(j)) to clarify that cotton,
other natural fibers, or wool must be
sourced domestically if the simplified
acquisition threshold is met, regardless
of their worth as a percentage of the
total price of the end product.
DoD Response: DoD agrees with the
intent of the comment, but does not
believe a DFARS change is necessary.
DFARS 225.7002–2(j) already states that
the exception applies only if the value
of the fibers is not more than 10 percent
of the total price of the end product and
does not exceed the simplified
acquisition threshold.
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b. Para-aramid fibers.
Comment: One respondent
recommended that the exception for
para-aramid fibers at 225.7002–2(m)(2)
(now 225.7002–2(o)(2)) be extended to
include all fabrics produced in
compliance with the North American
Free Trade Agreement (NAFTA), and to
allow for fabrics made with Kermel
aramid fiber produced in France and
spun into yarn that is woven and
finished in Canada.
DoD Response: The comment is
outside the scope of this DFARS case.
Section 807 of Public Law 105–261 only
provides authority for DoD to waive the
Berry Amendment restrictions for
procurement of para-aramid fibers from
countries that are party to a defense
memorandum of understanding
(qualifying countries). Mexico is not a
qualifying country. Canada and France
are qualifying countries, and can request
a waiver from the Under Secretary of
Defense (Acquisition, Technology, and
Logistics), as did the Netherlands.
c. Examples of textile products.
Comment: One respondent suggested
that DoD modify the rule at 225.7002–
2(m)(1) (now 225.7002–2(o)(1)) to state
that ‘‘Examples of textile products,
made in whole or in part of fabric,
include [but are not limited to]—’’.
DoD Response: DoD does not believe
the suggested change is necessary, since
the term ‘‘examples’’ means that the list
is not exhaustive. Similar language is
common throughout the DFARS.
d. Footwear.
Comment: One respondent requested
that DoD clarify in the regulations that
footwear is indeed included under the
Berry Amendment restriction on
clothing.
DoD Response: This issue has since
been clarified at DFARS 225.7002–
1(a)(2), which now lists footwear as an
item of clothing.
e. Parachutes.
Comment: Several respondents
requested that DoD include parachutes
as a listed item under the Berry
Amendment. In the past several years,
some parachutes have been
manufactured in Mexico, although the
synthetic fibers and fabric were
manufactured in the United States.
DoD Response: DoD has implemented
the law as written and cannot add items
to the list of restricted items without a
change to the law.
2. Food Items—Exception for Products
Manufactured or Processed in the
United States
a. Raw products.
Comment: There was mixed response
as to whether procurement of food items
that are manufactured or processed in
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Federal Register / Vol. 73, No. 42 / Monday, March 3, 2008 / Rules and Regulations
the United States, but are from raw
products of foreign origin, should be
allowed. Some respondents favored the
clarification of the exception in the
Berry Amendment relating to foods
manufactured or processed in the
United States. Other respondents
objected on the basis of harm to small
businesses and possible contamination
of foreign food ingredients (particularly
fish). Another respondent suggested that
foreign suppliers of seafood raw
materials should be held to the same
third-party verification requirements for
sanitation as domestic processors.
DoD Response: The issue relating to
the requirement for seafood products
manufactured or processed in the
United States to be made from domestic
fish or seafood was resolved by Section
8118 of the Defense Appropriations Act
for Fiscal Year 2005 (Pub. L. 108–287),
which made this requirement
permanent. This requirement is
implemented at DFARS 225.7002–2(l).
The other comments are outside the
scope of this DFARS case.
b. Definition of ‘‘manufactured’’ and
‘‘processed.’’
Comment: There was mixed response
regarding definition of the terms
‘‘manufactured’’ and ‘‘processed.’’ One
respondent was concerned that
suppliers may mistakenly consider
packaging, repackaging, or blending
sufficient processing to change the
foreign raw materials into a product that
could be procured by the U.S. military.
The respondent cited the definition of
‘‘processed food’’ in the Federal Food,
Drug and Cosmetic Act (21 U.S.C.
321(gg)).
Another respondent strongly urged
that DoD take a ‘‘common-sense’’
approach and not attempt to impose a
highly technical and potentially overly
restrictive definition of what constitutes
a product manufactured or processed in
the United States. This respondent
stated that widely accepted and robust
definitions and standards already exist
for such matters under U.S. Customs
Law.
DoD Response: DoD agrees that the
definition of these terms would be
extremely complex and would probably
vary depending on the food being
manufactured or processed. The
‘‘definition’’ in the Federal Food, Drug
and Cosmetic Act is not really
definitive, because it only cites
examples of processing ‘‘such as
canning, cooking, freezing, dehydration,
or milling.’’ This is not an exhaustive
list of the ways in which food might be
processed, and does not present criteria
by which to determine whether the
actions carried out constitute
‘‘processing.’’
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14:18 Feb 29, 2008
Jkt 214001
c. Packaging for meals-ready-to-eat
(MRE).
Comment: One respondent stated that
the rule should explicitly require
domestic sourcing for MRE packaging.
The respondent acknowledged that
packaging has never been explicitly
included in the Berry Amendment, but
believed that it has been strongly
implied. The respondent expressed
concern that the MRE pouches may be
contaminated, and thus may
contaminate the food.
DoD Response: The comment is
outside the scope of this DFARS case,
since food packaging is not covered by
the Berry Amendment.
3. Items of Individual Equipment
Comment: One respondent objected to
the parenthetical explanation of items of
individual equipment at DFARS
225.7002–1(a)(10), ‘‘(Federal Supply
Class 8465).’’ The respondent was
concerned that, because of this
insertion, items that normally may be
considered under the Berry Amendment
may inadvertently be excluded.
DoD Response: The comment is
outside the scope of this DFARS case.
The reference to Federal Supply Class
8465 has been in the DFARS since 1997,
and was not changed by this DFARS
rule. However, DoD recognizes the
concerns of the respondent and is
willing to further consider the issue
under a separate DFARS case, if
adequate supporting rationale is
received.
4. Specialty Metals
One respondent had three objections
to the DFARS implementation of the
Berry Amendment with regard to
specialty metals (none of which were
changed by the interim rule). These
objections are no longer pertinent, as the
result of Section 842 of the National
Defense Authorization Act for Fiscal
Year 2007 (Pub. L. 109–364), which
established separate restrictions on
specialty metals under 10 U.S.C. 2533b;
and Sections 804 and 884 of the
National Defense Authorization Act for
Fiscal Year 2008, which further
amended the restrictions. DoD is
implementing these statutory changes
under a separate DFARS case.
5. Other Exceptions
a. Activities located outside the
United States.
Comment: One respondent stated that
the exceptions in the interim rule at
225.7002–2(e) and (f) (now 225.7002–
2(e) and (g)) refer to ‘‘activities located
outside the United States’’ instead of
using the statutory language of
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11355
‘‘establishment located outside the
United States’’ (10 U.S.C. 2533a(d)(3)).
DoD Response: The interim rule made
no change to the cited DFARS language.
DoD refers to its overseas establishments
as ‘‘activities’’ and considers this term
to accurately reflect the intent of the
law.
b. NAFTA.
Comment: One respondent
recommended that the Berry
Amendment be expanded to include the
partners of NAFTA, allowing Canadian
and Mexican firms to participate in the
U.S. purchasing process.
DoD Response: The comment is
outside the scope of this DFARS case.
To allow purchases of restricted items
from Canada and Mexico would require
a change to the Berry Amendment.
6. Protectionism
Comment: One respondent objected to
the ‘‘protectionism’’ of the Berry
Amendment because of increased costs.
DoD Response: The comment relates
to the merits of the Berry Amendment
itself, not the DFARS rule, and,
therefore, is outside the scope of this
DFARS case.
7. Training
Comment: One respondent
commented on the need for training on
the Berry Amendment for procurement
officers and other personnel to make the
procurement process as seamless as
possible. The respondent also
recommended publication of
‘‘Frequently Asked Questions’’ on the
Defense Procurement website to benefit
the general public, as well as
Congressional, Administration, and DoD
staffs.
DoD Response: DoD recognizes the
need for more information and training
on the Berry Amendment. A Continuous
Learning Module on the Berry
Amendment (CLC 125) is now available
at https://learn.dau.mil. In addition,
answers to frequently asked questions
are available at https://www.acq.osd.mil/
dpap/cpic/ic/
berry_amendment_faq.html. The Berry
Amendment is a very complex issue
that frequently requires case-by-case
determination of applicability.
However, DoD promotes a broader
understanding of the basic concepts, so
that procurement personnel will
recognize the situations in which they
need to seek additional guidance.
This rule was not subject to Office of
Management and Budget review under
Executive Order 12866, dated
September 30, 1993.
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Federal Register / Vol. 73, No. 42 / Monday, March 3, 2008 / Rules and Regulations
B. Regulatory Flexibility Act
DoD certifies that this final rule will
not 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 primarily clarifies
existing policy pertaining to the
acquisition of certain items from
domestic sources.
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,
Editor, Defense Acquisition Regulations
System.
Accordingly, the interim rule
amending 48 CFR parts 225 and 252,
which was published at 67 FR 20697 on
April 26, 2002, is adopted as a final rule
with the following changes:
I 1. The authority citation for 48 CFR
parts 225 and 252 continues to read as
follows:
I
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) introductory text
to read as follows:
I
225.7002–2
Exceptions.
(j) Acquisitions of incidental amounts
of cotton, other natural fibers, or wool
incorporated in an end product, for
which the estimated value of the cotton,
other natural fibers, or wool—
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
252.212–7001
[Amended]
3. Section 252.212–7001 is amended
as follows:
I a. By revising the clause date to read
‘‘(MAR 2008)’’; and
I b. In paragraph (b)(5), by removing
‘‘(JAN 2007)’’ and adding in its place
‘‘(MAR 2008)’’.
I 4. Section 252.225–7012 is amended
by revising the clause date and
paragraph (c)(2) introductory text to
read as follows:
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I
252.225–7012 Preference for Certain
Domestic Commodities.
*
*
*
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*
*
14:18 Feb 29, 2008
Jkt 214001
PREFERENCE FOR CERTAIN
DOMESTIC COMMODITIES (MAR
2008)
respondents submitted comments on the
proposed rule. A discussion of the
comments is provided below:
*
1. Recommendation To Allow Third
Party Payment System (TPPS) U.S.
Bank—PowerTrack Transactions
Comment: Eight respondents
expressed concern that the rule would
no longer support the use of TPPS,
indicating that the rule fails to
acknowledge the unique needs of
suppliers who invoice on a transaction
basis, such as those in the express and
ground package delivery industry.
DoD Response: The rule has been
amended to permit the use of a DoDapproved electronic third party payment
system or other exempt vendor
payment/invoicing system (such as
PowerTrack, Transportation Financial
Management System, and Cargo and
Billing System) for payment of
commercial transportation services.
*
*
*
*
(c) * * *
(2) To incidental amounts of cotton, other
natural fibers, or wool incorporated in an end
product, for which the estimated value of the
cotton, other natural fibers, or wool—
*
*
*
*
*
[FR Doc. E8–3946 Filed 2–29–08; 8:45 am]
BILLING CODE 5001–08–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 232 and 252 and
Appendix F to Chapter 2
RIN 0750–AF63
Defense Federal Acquisition
Regulation Supplement; Mandatory
Use of Wide Area WorkFlow (DFARS
Case 2006–D049)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
SUMMARY: DoD has issued a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to require use of the Wide Area
WorkFlow electronic system for
submitting and processing payment
requests and receiving reports under
DoD contracts. Use of Wide Area
WorkFlow facilitates timely and
accurate payments to DoD contractors.
DATES: Effective Date: March 3, 2008.
FOR FURTHER INFORMATION CONTACT: Ms.
Robin Schulze, Defense Acquisition
Regulations System, OUSD (AT&L)
DPAP (CPF), IMD 3D139, 3062 Defense
Pentagon, Washington, DC 20301–3062.
Telephone 703–602–0326; facsimile
703–602–7887. Please cite DFARS Case
2006–D049.
SUPPLEMENTARY INFORMATION:
A. Background
This final rule requires use of the
Wide Area WorkFlow (WAWF)
electronic system for submission and
processing of payment requests and
receiving reports under DoD contracts.
WAWF, when fully implemented, will
eliminate paper documents, eliminate
redundant data entry, improve data
accuracy, reduce the number of lost or
misplaced documents, and result in
more timely payments to contractors.
DoD published a proposed rule at 72
FR 45405 on August 14, 2007. Sixteen
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2. Recommendation To Allow
Continued Use of the Governmentwide
Commercial Purchase Card
Comment: One respondent questioned
the functionality of WAWF to support
Government purchase card (GPC)
transactions.
DoD Response: DFARS 232.7002(a)(1)
exempts purchases paid for with a GPC.
Therefore, the requirement to submit
payment requests electronically through
WAWF does not extend to GPC
purchases.
3. Recommendation To Exclude Existing
Foreign Military Sales Contracts
Comment: One respondent expressed
concern that the rule would require
modification of existing foreign military
sales contracts.
DoD Response: In accordance with
FAR 1.108(d), the rule is prospective in
nature, becoming effective for
solicitations issued on or after the
effective date of the rule. It does not
require modification of existing
contracts.
4. Government Not Fully Compliant
Comment: Three respondents
expressed concern that WAWF has not
been fully implemented within DoD.
DoD Response: There are currently
over 145,000 Government users of
WAWF, with new users being added at
the rate of 2,500 per month. All of the
military departments are expanding
their use of WAWF and have targets to
complete deployment in fiscal year
2008. However, DoD recognizes there
are instances where WAWF cannot be
used, such as in a contingency
environment. Paragraph (c)(2) of the
clause at 252.232–7003 provides an
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Agencies
[Federal Register Volume 73, Number 42 (Monday, March 3, 2008)]
[Rules and Regulations]
[Pages 11354-11356]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-3946]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 225 and 252
RIN 0750-AD76
Defense Federal Acquisition Regulation Supplement; Codification
and Modification of Berry Amendment (DFARS Case 2002-D002)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD has adopted as final, with changes, 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 codified and made modifications to the
provision of law known as the ``Berry Amendment,'' which requires the
acquisition of certain items from domestic sources.
DATES: Effective Date: March 3, 2008.
FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, Defense Acquisition
Regulations System, OUSD (AT&L) DPAP (DARS), IMD 3D139, 3062 Defense
Pentagon, Washington, DC 20301-3062. Telephone 703-602-0328; facsimile
703-602-7887. Please cite DFARS Case 2002-D002.
SUPPLEMENTARY INFORMATION:
A. Background
DoD published an interim rule at 67 FR 20697 on April 26, 2002. The
rule amended the DFARS to implement Section 832 of the National Defense
Authorization Act for Fiscal Year 2002 (Pub. L. 107-107). Section 832
codified and made 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).
Twenty-two sources submitted comments on the interim rule. A
discussion of the comments is provided below:
1. Clothing, Fabrics, and Fibers
a. De minimis exception for cotton, other natural fibers, or wool.
(1) Applicability of exception.
Comment: One respondent commented on the applicability of the
exception in the interim rule at 225.7002-2(i) (now 225.7002-2(j)) for
incidental amounts of cotton, other natural fibers, or wool. The
respondent stated that the exception should apply only to the
incidental amount of cotton, other natural fibers, or wool, not to the
end item itself, if the end item is otherwise subject to the Berry
Amendment. For example, a jacket of synthetic fibers with cotton lining
in the pockets would still be subject to the Berry Amendment with
regard to origin of the jacket as a whole. Only the cotton lining of
the pockets would be exempt.
DoD Response: DoD concurs and has clarified this point in the final
rule.
(2) Simplified acquisition threshold.
Comment: One respondent requested that DoD revise the exception in
the interim rule at 225.7002-2(i) (now 225.7002-2(j)) to clarify that
cotton, other natural fibers, or wool must be sourced domestically if
the simplified acquisition threshold is met, regardless of their worth
as a percentage of the total price of the end product.
DoD Response: DoD agrees with the intent of the comment, but does
not believe a DFARS change is necessary. DFARS 225.7002-2(j) already
states that the exception applies only if the value of the fibers is
not more than 10 percent of the total price of the end product and does
not exceed the simplified acquisition threshold.
b. Para-aramid fibers.
Comment: One respondent recommended that the exception for para-
aramid fibers at 225.7002-2(m)(2) (now 225.7002-2(o)(2)) be extended to
include all fabrics produced in compliance with the North American Free
Trade Agreement (NAFTA), and to allow for fabrics made with Kermel
aramid fiber produced in France and spun into yarn that is woven and
finished in Canada.
DoD Response: The comment is outside the scope of this DFARS case.
Section 807 of Public Law 105-261 only provides authority for DoD to
waive the Berry Amendment restrictions for procurement of para-aramid
fibers from countries that are party to a defense memorandum of
understanding (qualifying countries). Mexico is not a qualifying
country. Canada and France are qualifying countries, and can request a
waiver from the Under Secretary of Defense (Acquisition, Technology,
and Logistics), as did the Netherlands.
c. Examples of textile products.
Comment: One respondent suggested that DoD modify the rule at
225.7002-2(m)(1) (now 225.7002-2(o)(1)) to state that ``Examples of
textile products, made in whole or in part of fabric, include [but are
not limited to]--''.
DoD Response: DoD does not believe the suggested change is
necessary, since the term ``examples'' means that the list is not
exhaustive. Similar language is common throughout the DFARS.
d. Footwear.
Comment: One respondent requested that DoD clarify in the
regulations that footwear is indeed included under the Berry Amendment
restriction on clothing.
DoD Response: This issue has since been clarified at DFARS
225.7002-1(a)(2), which now lists footwear as an item of clothing.
e. Parachutes.
Comment: Several respondents requested that DoD include parachutes
as a listed item under the Berry Amendment. In the past several years,
some parachutes have been manufactured in Mexico, although the
synthetic fibers and fabric were manufactured in the United States.
DoD Response: DoD has implemented the law as written and cannot add
items to the list of restricted items without a change to the law.
2. Food Items--Exception for Products Manufactured or Processed in the
United States
a. Raw products.
Comment: There was mixed response as to whether procurement of food
items that are manufactured or processed in
[[Page 11355]]
the United States, but are from raw products of foreign origin, should
be allowed. Some respondents favored the clarification of the exception
in the Berry Amendment relating to foods manufactured or processed in
the United States. Other respondents objected on the basis of harm to
small businesses and possible contamination of foreign food ingredients
(particularly fish). Another respondent suggested that foreign
suppliers of seafood raw materials should be held to the same third-
party verification requirements for sanitation as domestic processors.
DoD Response: The issue relating to the requirement for seafood
products manufactured or processed in the United States to be made from
domestic fish or seafood was resolved by Section 8118 of the Defense
Appropriations Act for Fiscal Year 2005 (Pub. L. 108-287), which made
this requirement permanent. This requirement is implemented at DFARS
225.7002-2(l). The other comments are outside the scope of this DFARS
case.
b. Definition of ``manufactured'' and ``processed.''
Comment: There was mixed response regarding definition of the terms
``manufactured'' and ``processed.'' One respondent was concerned that
suppliers may mistakenly consider packaging, repackaging, or blending
sufficient processing to change the foreign raw materials into a
product that could be procured by the U.S. military. The respondent
cited the definition of ``processed food'' in the Federal Food, Drug
and Cosmetic Act (21 U.S.C. 321(gg)).
Another respondent strongly urged that DoD take a ``common-sense''
approach and not attempt to impose a highly technical and potentially
overly restrictive definition of what constitutes a product
manufactured or processed in the United States. This respondent stated
that widely accepted and robust definitions and standards already exist
for such matters under U.S. Customs Law.
DoD Response: DoD agrees that the definition of these terms would
be extremely complex and would probably vary depending on the food
being manufactured or processed. The ``definition'' in the Federal
Food, Drug and Cosmetic Act is not really definitive, because it only
cites examples of processing ``such as canning, cooking, freezing,
dehydration, or milling.'' This is not an exhaustive list of the ways
in which food might be processed, and does not present criteria by
which to determine whether the actions carried out constitute
``processing.''
c. Packaging for meals-ready-to-eat (MRE).
Comment: One respondent stated that the rule should explicitly
require domestic sourcing for MRE packaging. The respondent
acknowledged that packaging has never been explicitly included in the
Berry Amendment, but believed that it has been strongly implied. The
respondent expressed concern that the MRE pouches may be contaminated,
and thus may contaminate the food.
DoD Response: The comment is outside the scope of this DFARS case,
since food packaging is not covered by the Berry Amendment.
3. Items of Individual Equipment
Comment: One respondent objected to the parenthetical explanation
of items of individual equipment at DFARS 225.7002-1(a)(10), ``(Federal
Supply Class 8465).'' The respondent was concerned that, because of
this insertion, items that normally may be considered under the Berry
Amendment may inadvertently be excluded.
DoD Response: The comment is outside the scope of this DFARS case.
The reference to Federal Supply Class 8465 has been in the DFARS since
1997, and was not changed by this DFARS rule. However, DoD recognizes
the concerns of the respondent and is willing to further consider the
issue under a separate DFARS case, if adequate supporting rationale is
received.
4. Specialty Metals
One respondent had three objections to the DFARS implementation of
the Berry Amendment with regard to specialty metals (none of which were
changed by the interim rule). These objections are no longer pertinent,
as the result of Section 842 of the National Defense Authorization Act
for Fiscal Year 2007 (Pub. L. 109-364), which established separate
restrictions on specialty metals under 10 U.S.C. 2533b; and Sections
804 and 884 of the National Defense Authorization Act for Fiscal Year
2008, which further amended the restrictions. DoD is implementing these
statutory changes under a separate DFARS case.
5. Other Exceptions
a. Activities located outside the United States.
Comment: One respondent stated that the exceptions in the interim
rule at 225.7002-2(e) and (f) (now 225.7002-2(e) and (g)) refer to
``activities located outside the United States'' instead of using the
statutory language of ``establishment located outside the United
States'' (10 U.S.C. 2533a(d)(3)).
DoD Response: The interim rule made no change to the cited DFARS
language. DoD refers to its overseas establishments as ``activities''
and considers this term to accurately reflect the intent of the law.
b. NAFTA.
Comment: One respondent recommended that the Berry Amendment be
expanded to include the partners of NAFTA, allowing Canadian and
Mexican firms to participate in the U.S. purchasing process.
DoD Response: The comment is outside the scope of this DFARS case.
To allow purchases of restricted items from Canada and Mexico would
require a change to the Berry Amendment.
6. Protectionism
Comment: One respondent objected to the ``protectionism'' of the
Berry Amendment because of increased costs.
DoD Response: The comment relates to the merits of the Berry
Amendment itself, not the DFARS rule, and, therefore, is outside the
scope of this DFARS case.
7. Training
Comment: One respondent commented on the need for training on the
Berry Amendment for procurement officers and other personnel to make
the procurement process as seamless as possible. The respondent also
recommended publication of ``Frequently Asked Questions'' on the
Defense Procurement website to benefit the general public, as well as
Congressional, Administration, and DoD staffs.
DoD Response: DoD recognizes the need for more information and
training on the Berry Amendment. A Continuous Learning Module on the
Berry Amendment (CLC 125) is now available at https://learn.dau.mil. In
addition, answers to frequently asked questions are available at http:/
/www.acq.osd.mil/dpap/cpic/ic/berry_amendment_faq.html. The Berry
Amendment is a very complex issue that frequently requires case-by-case
determination of applicability. However, DoD promotes a broader
understanding of the basic concepts, so that procurement personnel will
recognize the situations in which they need to seek additional
guidance.
This rule was not subject to Office of Management and Budget review
under Executive Order 12866, dated September 30, 1993.
[[Page 11356]]
B. Regulatory Flexibility Act
DoD certifies that this final rule will not 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 primarily clarifies existing policy pertaining to the
acquisition of certain items from domestic sources.
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,
Editor, Defense Acquisition Regulations System.
0
Accordingly, the interim rule amending 48 CFR parts 225 and 252, which
was published at 67 FR 20697 on April 26, 2002, is adopted as a final
rule with the following changes:
0
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
0
2. Section 225.7002-2 is amended by revising paragraph (j) introductory
text to read as follows:
225.7002-2 Exceptions.
(j) Acquisitions of incidental amounts of cotton, other natural
fibers, or wool incorporated in an end product, for which the estimated
value of the cotton, other natural fibers, or wool--
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
252.212-7001 [Amended]
0
3. Section 252.212-7001 is amended as follows:
0
a. By revising the clause date to read ``(MAR 2008)''; and
0
b. In paragraph (b)(5), by removing ``(JAN 2007)'' and adding in its
place ``(MAR 2008)''.
0
4. Section 252.225-7012 is amended by revising the clause date and
paragraph (c)(2) introductory text to read as follows:
252.225-7012 Preference for Certain Domestic Commodities.
* * * * *
PREFERENCE FOR CERTAIN DOMESTIC COMMODITIES (MAR 2008)
* * * * *
(c) * * *
(2) To incidental amounts of cotton, other natural fibers, or
wool incorporated in an end product, for which the estimated value
of the cotton, other natural fibers, or wool--
* * * * *
[FR Doc. E8-3946 Filed 2-29-08; 8:45 am]
BILLING CODE 5001-08-P