DATE: September 15, 2003
SUBJECT: Defense Federal Acquisition Regulation Supplement (DFARS); Fish, Shellfish, and Seafood Products
SOURCE: Federal Register, September 15, 2003, Vol. 68, No. 178, page 53945
AGENCIES: Department of Defense (DOD)
ACTION: Proposed Rule
SYNOPSIS: DOD is proposing to amend DFARS 225.7002-2, Exceptions, and DFARS 252.225-7012, Preference for Certain Domestic Commodities, to clarify the interim rule published on February 14, 2003, that implemented Section 8136 of the Defense Appropriations Act for Fiscal Year 2003 (Public Law 107-248). Section 8136 requires the acquisition of domestic fish, shellfish, and seafood, including fish, shellfish, and seafood manufactured or processed, or contained in foods manufactured or processed, in the United States.
EDITOR'S NOTE: For more on the interim rule being clarified, see the February 14, 2003, FEDERAL CONTRACTS DISPATCH "Defense Federal Acquisition Regulation Supplement (DFARS); Fish, Shellfish, and Seafood Products."
For more on the "Berry Amendment," see DFARS 225.7002, Restrictions on Food, Clothing, Fabrics, Specialty Metals, and Hand or Measuring Tools, and the April 26, 2002, FEDERAL CONTRACTS DISPATCH "Defense Federal Acquisition Regulation Supplement (DFARS); Modification of the Berry Amendment."
DATES: Comments must be submitted on or before November 14, 2003.
ADDRESSES: Respondents may submit comments directly on the web site at http://emissary.acq.osd.mil/dar/dfars.nsf/pubcomm. As an alternative, respondents may e-mail comments to: firstname.lastname@example.org. Also, respondents who cannot submit comments through the web site or by e-mail may submit comments to Defense Acquisition Regulations Council, Attn: Amy Williams, OUSD(AT&L)DP(DAR), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062, or by fax to 703-602-0350. Cite "DFARS Case 2002-D034" when making comments on this proposed rule.
FOR FURTHER INFORMATION CONTACT: Amy Williams, 703-602-0328.
SUPPLEMENTAL INFORMATION: On February 14, 2003, DOD published an interim rule addressing changes made by Public Law 107-248 to the application of the Berry Amendment (10 U.S.C. 2533a). The Berry Amendment requires the acquisition of certain items from domestic sources, including food. In general, DOD must buy foods grown or produced in the United States (paragraph (a)(1) of DFARS 225.7002-1, Restrictions), but DFARS 225.7002-2(j) provides 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)).
Section 8136 of Public Law 107-248 makes the exception at 10 U.S.C. 2533a(f) inapplicable to fish, shellfish, and seafood products, and makes this exception applicable to contracts and subcontracts for the procurement of commercial items. Therefore, the interim rule made the following revisions:
Comments from eight respondents were received. Because of the comments, the following additional revisions are proposed:
"(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."
"(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."
"(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."
FOR FURTHER INFORMATION CONTACT: Panoptic Enterprises at 703-451-5953 or by e-mail to Panoptic@FedGovContracts.com.
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