80 FR 10452 - Defense Federal Acquisition Regulation Supplement: Acquisition of the American Flag (DFARS Case 2015-D005)

DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System

Federal Register Volume 80, Issue 38 (February 26, 2015)

DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to implement sections of the Department of Defense Appropriations Acts for Fiscal Year (FY) 2014 and FY 2015 that prohibit use of funds made available under the acts for the purchase or manufacture of a flag of the United States, unless such flag is manufactured in the United States.

[Federal Register Volume 80, Number 38 (Thursday, February 26, 2015)]
[Proposed Rules]
[Pages 10452-10454]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-03857]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 205, 212, 225, and 252

RIN 0750-AI51


Defense Federal Acquisition Regulation Supplement: Acquisition of 
the American Flag (DFARS Case 2015-D005)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

[[Page 10453]]


ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement (DFARS) to implement sections of the Department 
of Defense Appropriations Acts for Fiscal Year (FY) 2014 and FY 2015 
that prohibit use of funds made available under the acts for the 
purchase or manufacture of a flag of the United States, unless such 
flag is manufactured in the United States.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before April 27, 2015, to be considered 
in the formation of a final rule.

ADDRESSES: Submit comments identified by DFARS Case 2015-D005, using 
any of the following methods:
    [cir] Regulations.gov: http://www.regulations.gov. Submit comments 
via the Federal eRulemaking portal by entering ``DFARS Case 2015-D005'' 
under the heading ``Enter keyword or ID'' and selecting ``Search.'' 
Select the link ``Submit a Comment'' that corresponds with ``DFARS Case 
2015-D005.'' Follow the instructions provided at the ``Submit a 
Comment'' screen. Please include your name, company name (if any), and 
``DFARS Case 2015-D005'' on your attached document.
    [cir] Email: [email protected]. Include DFARS Case 2015-D005 in 
the subject line of the message.
    [cir] Fax: 571-372-6094.
    [cir] Mail: Defense Acquisition Regulations System, Attn: Ms. Amy 
G. Williams, OUSD(AT&L)DPAP/DARS, Room 3B941, 3060 Defense Pentagon, 
Washington, DC 20301-3060.
    Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To 
confirm receipt of your comment(s), please check www.regulations.gov, 
approximately two to three days after submission to verify posting 
(except allow 30 days for posting of comments submitted by mail).

FOR FURTHER INFORMATION CONTACT: Ms. Amy G. Williams, telephone 571-
372-6106.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD is proposing to amend the DFARS to implement sections 8123 of 
the Department of Defense Appropriations Act, 2014 (Division C, Title 
VIII of Pub. L. 113-76) and section 8119 of the Department of Defense 
Appropriations Act, 2015 (Division C, Title VIII of Pub. L. 113-235). 
These sections prohibit the use of funds appropriated under those acts 
for the purchase or manufacture of a flag of the United States unless 
such flag is treated as a covered item under 10 U.S.C. 2533a(b) 
(commonly known as the Berry Amendment). With some exceptions, the 
Berry Amendment restricts the purchase of certain items of food, 
clothing, fabrics, and hand or measuring tools (whether as end products 
or components), unless the items have been grown, reprocessed, reused, 
or produced in the United States.

II. Discussion and Analysis

    The Berry Amendment is implemented in DFARS 225.7002 and associated 
clauses DFARS 252.225-7012 and 252.225-7015.
    This rule proposes to amend DFARS 225-7002-1, 225-7002-2, and 
225.7002-3, and add a new clause at 252.225-70XX, Acquisition of the 
American Flag. Conforming changes are also required in DFARS 212.301(f) 
to apply the new clause to the acquisition of commercial items. Since 
most, if not all, flags are commercial items, this statute would be 
without affect if not applied to commercial items. Furthermore, this is 
an appropriations act restriction, which specifically prohibits the 
expenditure of any funds appropriated under these acts, unless the 
flags to be acquired are manufactured in the United States (regardless 
of whether the flags are commercial items.)

III. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This is not a significant regulatory action and, therefore, was not 
subject to review under section 6(b) of E.O. 12866, Regulatory Planning 
and Review, dated September 30, 1993. This rule is not a major rule 
under 5 U.S.C. 804.

IV. Regulatory Flexibility Act

    DoD does not expect this proposed 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. based 
on a review of historical purchasing data. However, an initial 
regulatory flexibility analysis has been performed and is summarized as 
follows:
    This rule is necessary to implement sections 8123 and 8119 of the 
DoD Appropriations Acts for FYs 2014 and 2015, respectively, and the 
same provision in subsequent DoD appropriations acts.
    The objective of the rule is to prohibit acquisition of a flag of 
the United States (Product or Service Code 8345), unless such flag, 
including the materials and components thereof, is manufactured in the 
United States, consistent with the requirements at 10 U.S.C. 2533a. The 
legal basis for the rule is sections 8123 and 8119 of the DoD 
Appropriations Acts for FYs 2014 and 2015 (Division C of Pub. Laws 113-
76 and 113-235, respectively.
    Based on FY 2013 Federal Procurement Data System data, there was 
only one acquisition of flags from a small business that exceeded the 
simplified acquisition threshold. There are no projected reporting or 
recordkeeping requirements. The rule only requires that if a contractor 
is to provide flags of the United States to DoD under a contract that 
exceeds the simplified acquisition threshold, the flags must be 
manufactured in the United States.
    The rule does not duplicate, overlap, or conflict with any other 
Federal rules. There are no significant alternatives that meet the 
requirement of the statute.
    DoD will also consider comments from small entities concerning the 
existing regulations in subparts affected by this rule in accordance 
with 5 U.S.C. 610. Interested parties must submit such comments 
separately and should cite 5 U.S.C. 610 (DFARS Case 2015-D005), in 
correspondence.

V. Paperwork Reduction Act

    The rule does not contain any information collection requirements 
that require the approval of the Office of Management and Budget under 
the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Parts 205, 212, 225, and 252

    Government procurement.

Manuel Quinones,
Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 205, 212, 225, and 252 are proposed to be 
amended as follows:

0
1. The authority citation for parts 205, 212, 225, and 252 continues to 
read as follows:


[[Page 10454]]


    Authority:  41 U.S.C. 1303 and 48 CFR chapter 1.

PART 205--PUBLICIZING CONTRACT ACTIONS


205.301   [Amended]

0
2. Amend section 205.301, in paragraph (a)(S-70)(i) introductory text 
by removing ``225.7002-1(a)(2) through (10)'' and adding ``225.7002-
1(a)(1)(ii) through (x)'' in its place.

PART 212--ACQUISITION OF COMMERCIAL ITEMS

0
3. Amend section 212.301, by adding paragraph (f)(ix)(CC) to read as 
follows:


212.301  Solicitation provisions and contract clauses for the 
acquisition of commercial items.

    (f) * * *
    (ix) * * *
    (CC) Use the clause at 252.225-70XX, Acquisition of the American 
Flag, as prescribed in 225.7002-3(c), to comply with section 8123 of 
the DoD Appropriations Act, 2014 (Pub. L. 113-76, Division C, Title 
VIII), and the same provision in subsequent DoD appropriations acts.
* * * * *

PART 225--FOREIGN ACQUISITION

0
4. Revise the section 225.7002 heading to read as follows:


225.7002   Restrictions on food, clothing, fabrics, hand or measuring 
tools, and flags.

0
5. Amend section 225.7002-1 by--
0
a. Redesignating paragraphs (a) and (b) as (1) and (2), respectively;
0
b. Redesignating the introductory text as paragraph (a);
0
c. In the newly redesignated paragraph (1), further redesignating 
paragraphs (1) through (10) as (1)(i) through (x), respectively;
0
d. In the newly redesignated paragraph (1)(iii), further redesignating 
paragraphs (i) through (iii) as paragraphs (1)(iii)(A) through (C), 
respectively;
0
e. In the newly redesignated paragraph (1)(x), removing ``(Federal 
Supply Class 8465)'' and adding ``(Product or Service Code (PSC) 
8465)'' in its place, and removing ``paragraph (a)'' and adding 
``paragraph (a)(1)'' in its place;
0
f. In the newly redesignated paragraph (2), removing ``see PGI 
225.7002-1(b)'' and adding ``see PGI 225.7002-1(a)(2)'' in its place; 
and
0
g. Adding a new paragraph (b).
    The addition reads as follows:


225.7002-1   Restrictions.

* * * * *
    (b) In accordance with section 8123 of the Department of Defense 
Appropriations Act, 2014 (Pub. L. 113-76, Division C, Title VIII), and 
the same provision in subsequent Defense appropriations acts, except as 
provided in 225.7002-2, do not acquire a flag of the United States (PSC 
8345), unless such flag, including the materials and components 
thereof, is manufactured in the United States, consistent with the 
requirements at 10 U.S.C. 2533a.


225.7002-2   [Amended]

0
6. Amend section 225.7002-2 by--
0
a. In paragraph (l), removing ``Section 8118'' and adding ``section 
8118'' in its place;
0
b. In paragraph (m)(1)(i), removing ``Federal Supply Group'' and adding 
``Product or Service Group (PSG)'' in its place;
0
c. In paragraph (m)(1)(ii), removing ``Federal Supply Group'' and 
adding ``PSG'' in its place in two places; and
0
d. In paragraph (m)(1)(iv), removing ``Federal Supply Class'' and 
adding ``PSC'' in its place.
0
7. Amend section 225.7002-3 by adding a new paragraph (c) to read as 
follows:


225.7002-3   Contract clauses.

* * * * *
    (c) Use the clause at 252.225-70XX, Acquisition of the American 
Flag, in solicitations and contracts, including solicitations and 
contracts using FAR part 12 procedures for the acquisition of 
commercial items, that are for the acquisition of the American flag, 
with an estimated value that exceeds the simplified acquisition 
threshold.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
8. Add section 252.225-70XX to read as follows:


252.225-70XX   Acquisition of the American Flag.

    As prescribed in 225.7002-3(c), use the following clause:

ACQUISITION OF THE AMERICAN FLAG (DATE)

    (a) Definition. United States, as used in this clause, means the 
50 States, the District of Columbia, and outlying areas.
    (b) If the Contractor is required to deliver under this contract 
one or more American flags (Product or Service Code 8345), such 
flag(s), including the materials and components thereof, shall be 
manufactured in the United States, consistent with the requirements 
at 10 U.S.C. 2533a (commonly known as the ``Berry Amendment'').
    (c) This clause does not apply to the acquisition of any end 
items or components related to flying or displaying the flag (e.g., 
flagpoles and accessories).


(End of clause)

[FR Doc. 2015-03857 Filed 2-25-15; 8:45 am]
BILLING CODE 5001-06-P