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Panoptic Enterprises' FEDERAL CONTRACTS DISPATCH

DATE: June 8, 2004

SUBJECT: Defense Federal Acquisition Regulation Supplement (DFARS); Fish, Shellfish, and Seafood Products

SOURCE: Federal Register, June 8, 2004, Vol. 69, No. 110, page 31910

AGENCIES: Department of Defense (DOD)

ACTION: Final Rule

SYNOPSIS: DOD is amending DFARS 225.7002-2, Exceptions, and DFARS 252.225-7012, Preference for Certain Domestic Commodities, to clarify and finalize 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. The final rule further clarifies what "manufactured or processed in the United States" means.

EDITOR'S NOTE: For more on the proposed rule that is being finalized, see the September 15, 2003, FEDERAL CONTRACTS DISPATCH "Defense Federal Acquisition Regulation Supplement (DFARS); Fish, Shellfish, and Seafood Products."

For more on the interim rule that was being clarified by the proposed rule, 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."

EFFECTIVE DATE: June 8, 2004.

FOR FURTHER INFORMATION CONTACT: Amy Williams, Defense Acquisition Regulations Council, OUSD (AT&L) DPAP (DAR), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062; 703-602-0328; fax: 703-602-0350.

SUPPLEMENTAL INFORMATION: The Berry Amendment (10 U.S.C. 2533a) 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. To implement Section 8136, an interim rule was published on February 14, 2003, amending DFARS 225.7002-2(j) and DFARS 252.225-7012(c)(3), and comments were requested on the changes.

Eight respondents submitted comments. Because of the comments, on September 15, 2003, DOD published proposed revisions to further revise DFARS 225.7002-2 and DFARS 252.225-7012 to: (1) provide guidance for determining which items qualify as "domestic" fish, shellfish, and seafood products; (2) define the geographic limit of "United States" in which the fish, shellfish, and seafood must be manufactured or processed to qualify as domestic; and (3) clarify language that appeared to make all the exceptions in DFARS 225.7002-2 inapplicable to fish and seafood products (such as: the Secretary determines that domestic products cannot be acquired when needed in a satisfactory quality and quantity; the products are acquired outside the United States; the acquisition does not exceed the simplified acquisition threshold; and the products are purchased for commissary resale).

No comments were received on the proposed rule, so the proposed rule and the interim rule are adopted as final except that DFARS 225.7002-2(l) is revised by adding "and similar sections in subsequent DOD appropriations acts" to the phrase "in accordance with Section 8136 of the DOD Appropriations Act for Fiscal Year 2003 (Pub. L. 107-248) and similar sections in subsequent DOD appropriations acts..." This revision is made to reflect the recurrence of this provision in Section 8118 of the DOD Appropriations Act for Fiscal Year 2004 (Public Law 108-87).

FOR FURTHER INFORMATION CONTACT: Panoptic Enterprises at 703-451-5953 or by e-mail to Panoptic@FedGovContracts.com.

Copyright 2004 by Panoptic Enterprises. All Rights Reserved.

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