80 FR 51748 - 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 165 (August 26, 2015)
Defense Acquisition Regulations System
Federal Register Volume 80, Issue 165 (August 26, 2015)
| Page Range | 51748-51749 | |
| FR Document | 2015-20873 |
[Federal Register Volume 80, Number 165 (Wednesday, August 26, 2015)] [Rules and Regulations] [Pages 51748-51749] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-20873] ----------------------------------------------------------------------- DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 205, 212, 225, and 252 [Docket No. DARS-2015-0014] 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). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement sections of the Department of Defense Appropriations Acts for Fiscal Years 2014 and 2015 that prohibit use of funds made available under these acts for the purchase or manufacture of a flag of the United States, unless such flag is manufactured in the United States. DATES: Effective August 26, 2015. FOR FURTHER INFORMATION CONTACT: Ms. Tresa Sullivan, telephone 571-372- 6089. SUPPLEMENTARY INFORMATION: I. Background DoD published a proposed rule in the Federal Register at 80 FR 10452 on February 26, 2015, to amend the DFARS to implement section 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. The public comment period ended April 27, 2015, with comments submitted by two respondents in response to the proposed rule. II. Discussion and Analysis DoD reviewed the public comments in the development of the final rule. Two responses were received. There are no changes from the substance of the proposed rule. One respondent commended the rule. Another respondent requested flags be purchased from his company in Serbia; however, section 8123 and section 8119 of the DoD Appropriations Acts for 2014 and 2015, respectively, prohibit the 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. 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 A final regulatory flexibility analysis has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., and is summarized as follows: This rule is necessary to implement sections 8123 and 8119 of the DoD Appropriations Acts for Fiscal Years 2014 and 2015, respectively, and the same provisions 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). No comments were received from the public relative to the initial regulatory flexibility analysis. DoD does not expect this final 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 data available in the Federal Procurement Data System, there was [[Page 51749]] only one acquisition of flags from a small business that exceeded the simplified acquisition threshold in fiscal year 2013. There are no 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. 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. Jennifer L. Hawes, Editor, Defense Acquisition Regulations System. Therefore, 48 CFR parts 205, 212, 225, and 252 are amended as follows: 0 1. The authority citation for 48 CFR parts 205, 212, 225, and 252 continues to read as follows: 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-- 0 a. Redesignating sections (f)(x)(C) through (BB) as paragraphs (f)(x)(D) through (CC), respectively; and 0 b. Adding a new paragraph (f)(x)(C). The addition reads as follows: 212.301 Solicitation provisions and contract clauses for the acquisition of commercial items. (f) * * * (x) * * * (C) Use the clause at 252.225-7006, 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 paragraphs (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 paragraphs (1)(i) through (x), respectively; 0 d. In the newly redesignated paragraph (1)(ii), removing ``PGI 225.7002-1(a)(2)'' and adding ``PGI 225.7002-1(a)(1)(ii)'' in its place; 0 e. In the newly redesignated paragraph (1)(iii), further redesignating paragraphs (i) through (iii) as paragraphs (1)(iii)(A) through (C), respectively; 0 r. 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 g. 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 h. 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. This restriction does not apply to the acquisition of any end-items or components related to flying or displaying the flag (e.g., flag poles and accessories). 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-- 0 a. In the introductory text, removing ``exception'' and adding ``exception at 223.7002-2'' in its place; and 0 b. Adding a new paragraph (c). The addition reads as follows: 225.7002-3 Contract clauses. * * * * * (c) Use the clause at 252.225-7006, 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 252.225-7006 to read as follows: 252.225-7006 Acquisition of the American Flag. As prescribed in 225.7002-3(c), insert the following clause: ACQUISITION OF THE AMERICAN FLAG (AUG 2015) (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. 2015-20873 Filed 8-25-15; 08:45 am] BILLING CODE 5001 6820-06-P
![51748 Federal Register / Vol. 80, No. 165 / Wednesday, August 26, 2015 / Rules and Regulations
instructions provided by the Contracting DEPARTMENT OF DEFENSE responses were received. There are no
Officer. changes from the substance of the
(f) Media preservation and protection. Defense Acquisition Regulations proposed rule. One respondent
When a Contractor discovers a cyber incident System commended the rule. Another
has occurred, the Contractor shall preserve
and protect images of all known affected respondent requested flags be purchased
information systems identified in paragraph 48 CFR Parts 205, 212, 225, and 252 from his company in Serbia; however,
(d) of this clause and all relevant monitoring/ [Docket No. DARS–2015–0014]
section 8123 and section 8119 of the
packet capture data for at least 90 days from DoD Appropriations Acts for 2014 and
the submission of the cyber incident report RIN 0750–AI51 2015, respectively, prohibit the use of
to allow DoD to request the media or decline funds made available under the acts for
interest. Defense Federal Acquisition the purchase or manufacture of a flag of
(g) Access to additional information or Regulation Supplement: Acquisition of the United States, unless such flag is
equipment necessary for forensic analysis. the American Flag (DFARS Case 2015–
Upon request by DoD, the Contractor shall
manufactured in the United States.
D005)
provide DoD with access to additional III. Executive Orders 12866 and 13563
information or equipment that is necessary to AGENCY: Defense Acquisition
conduct a forensic analysis. Regulations System, Department of Executive Orders (E.O.s) 12866 and
(h) Cyber incident damage assessment Defense (DoD). 13563 direct agencies to assess all costs
activities. If DoD elects to conduct a damage and benefits of available regulatory
ACTION: Final rule.
assessment, the Contracting Officer will alternatives and, if regulation is
request that the Contractor provide all of the SUMMARY: DoD is issuing a final rule necessary, to select regulatory
damage assessment information gathered in approaches that maximize net benefits
amending the Defense Federal
accordance with paragraph (f) of this clause. (including potential economic,
(i) Records management and facility Acquisition Regulation Supplement
access. (DFARS) to implement sections of the environmental, public health and safety
(1) The Contractor shall provide the Department of Defense Appropriations effects, distributive impacts, and
Contracting Officer all Government data and Acts for Fiscal Years 2014 and 2015 that equity). E.O. 13563 emphasizes the
Government-related data in the format prohibit use of funds made available importance of quantifying both costs
specified in the contract. under these acts for the purchase or and benefits, of reducing costs, of
(2) The Contractor shall dispose of manufacture of a flag of the United harmonizing rules, and of promoting
Government data and Government-related flexibility. This is not a significant
States, unless such flag is manufactured
data in accordance with the terms of the regulatory action and, therefore, was not
contract and provide the confirmation of in the United States.
disposition to the Contracting Officer in DATES: Effective August 26, 2015. subject to review under section 6(b) of
accordance with contract closeout E.O. 12866, Regulatory Planning and
FOR FURTHER INFORMATION CONTACT: Ms.
procedures. Review, dated September 30, 1993. This
Tresa Sullivan, telephone 571–372–
(3) The Contractor shall provide the rule is not a major rule under 5 U.S.C.
6089.
Government, or its authorized 804.
representatives, access to all Government SUPPLEMENTARY INFORMATION:
data and Government-related data, access to IV. Regulatory Flexibility Act
contractor personnel involved in I. Background
A final regulatory flexibility analysis
performance of the contract, and physical DoD published a proposed rule in the has been prepared consistent with the
access to any Contractor facility with Federal Register at 80 FR 10452 on Regulatory Flexibility Act, 5 U.S.C. 601,
Government data, for the purpose of audits, February 26, 2015, to amend the DFARS
investigations, inspections, or other similar
et seq., and is summarized as follows:
to implement section 8123 of the This rule is necessary to implement
activities, as authorized by law or regulation.
(j) Notification of third party access
Department of Defense Appropriations sections 8123 and 8119 of the DoD
requests. The Contractor shall notify the Act, 2014 (division C, title VIII of Pub. Appropriations Acts for Fiscal Years
Contracting Officer promptly of any requests L. 113–76) and section 8119 of the 2014 and 2015, respectively, and the
from a third party for access to Government Department of Defense Appropriations same provisions in subsequent DoD
data or Government-related data, including Act, 2015 (division C, title VIII of Pub. appropriations acts.
any warrants, seizures, or subpoenas it L. 113–235). These sections prohibit the The objective of the rule is to prohibit
receives, including those from another use of funds appropriated under those acquisition of a flag of the United States
Federal, State, or Local agency. The acts for the purchase or manufacture of (Product or Service Code 8345), unless
Contractor shall cooperate with the a flag of the United States, unless such such flag, including the materials and
Contracting Officer to take all measures to
protect Government data and Government-
flag is treated as a covered item under components thereof, is manufactured in
related data from any unauthorized 10 U.S.C. 2533a(b) (commonly known as the United States, consistent with the
disclosure. the Berry Amendment). With some requirements at 10 U.S.C. 2533a. The
(k) Spillage. Upon notification by the exceptions, the Berry Amendment legal basis for the rule is sections 8123
Government of a spillage, or upon the restricts the purchase of certain items of and 8119 of the DoD Appropriations
Contractor’s discovery of a spillage, the food, clothing, fabrics, and hand or Acts for FYs 2014 and 2015 (Division C
Contractor shall cooperate with the measuring tools (whether as end of Pub. Laws 113–76 and 113–235,
Contracting Officer to address the spillage in products or components), unless the respectively).
compliance with agency procedures. items have been grown, reprocessed, No comments were received from the
(l) Subcontracts. The Contractor shall
reused, or produced in the United public relative to the initial regulatory
include the substance of this clause,
including this paragraph (l), in all States. The public comment period flexibility analysis.
DoD does not expect this final rule to
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subcontracts that involve or may involve ended April 27, 2015, with comments
cloud services, including subcontracts for submitted by two respondents in have a significant economic impact on
commercial items. response to the proposed rule. a substantial number of small entities
within the meaning of the Regulatory
(End of clause) II. Discussion and Analysis Flexibility Act, 5 U.S.C. 601, et seq.
[FR Doc. 2015–20870 Filed 8–25–15; 8:45 am] DoD reviewed the public comments in Based on data available in the Federal
BILLING CODE 5001–06–P the development of the final rule. Two Procurement Data System, there was
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![Federal Register / Vol. 80, No. 165 / Wednesday, August 26, 2015 / Rules and Regulations 51749
only one acquisition of flags from a provision in subsequent DoD ■ b. In paragraph (m)(1)(i), removing
small business that exceeded the appropriations acts. ‘‘Federal Supply Group’’ and adding
simplified acquisition threshold in * * * * * ‘‘Product or Service Group (PSG)’’ in its
fiscal year 2013. There are no reporting place;
or recordkeeping requirements. The rule PART 225—FOREIGN ACQUISITION ■ c. In paragraph (m)(1)(ii), removing
only requires that if a contractor is to
■ 4. Revise the section 225.7002 ‘‘Federal Supply Group’’ and adding
provide flags of the United States to
heading to read as follows: ‘‘PSG’’ in its place in two places; and
DoD under a contract that exceeds the
simplified acquisition threshold, the ■ d. In paragraph (m)(1)(iv), removing
225.7002 Restrictions on food, clothing,
flags must be manufactured in the fabrics, hand or measuring tools, and flags.
‘‘Federal Supply Class’’ and adding
United States. ‘‘PSC’’ in its place.
The rule does not duplicate, overlap, ■ 5. Amend section 225.7002–1 by—
■ a. Redesignating paragraphs (a) and ■ 7. Amend section 225.7002–3 by—
or conflict with any other Federal rules.
There are no significant alternatives that (b) as paragraphs (1) and (2), ■ a. In the introductory text, removing
meet the requirement of the statute. respectively; ‘‘exception’’ and adding ‘‘exception at
■ b. Redesignating the introductory text 223.7002–2’’ in its place; and
V. Paperwork Reduction Act as paragraph (a); ■ b. Adding a new paragraph (c).
The rule does not contain any ■ c. In the newly redesignated
paragraph (1), further redesignating The addition reads as follows:
information collection requirements that
require the approval of the Office of paragraphs (1) through (10) as 225.7002–3 Contract clauses.
Management and Budget under the paragraphs (1)(i) through (x),
respectively; * * * * *
Paperwork Reduction Act (44 U.S.C.
chapter 35). ■ d. In the newly redesignated (c) Use the clause at 252.225–7006,
paragraph (1)(ii), removing ‘‘PGI Acquisition of the American Flag, in
List of Subjects in 48 CFR Parts 205, 225.7002–1(a)(2)’’ and adding ‘‘PGI solicitations and contracts, including
212, 225, and 252 225.7002–1(a)(1)(ii)’’ in its place; solicitations and contracts using FAR
Government procurement. ■ e. In the newly redesignated part 12 procedures for the acquisition of
paragraph (1)(iii), further redesignating commercial items, that are for the
Jennifer L. Hawes,
paragraphs (i) through (iii) as acquisition of the American flag, with
Editor, Defense Acquisition Regulations paragraphs (1)(iii)(A) through (C),
System. an estimated value that exceeds the
respectively; simplified acquisition threshold.
Therefore, 48 CFR parts 205, 212, 225, ■ r. In the newly redesignated paragraph
and 252 are amended as follows: (1)(x), removing ‘‘(Federal Supply Class PART 252—SOLICITATION
■ 1. The authority citation for 48 CFR 8465)’’ and adding ‘‘(Product or Service PROVISIONS AND CONTRACT
parts 205, 212, 225, and 252 continues Code (PSC) 8465)’’ in its place, and CLAUSES
to read as follows: removing ‘‘paragraph (a)’’ and adding
Authority: 41 U.S.C. 1303 and 48 CFR ‘‘paragraph (a)(1)’’ in its place; ■ 8. Add section 252.225–7006 to read
chapter 1. ■ g. In the newly redesignated
as follows:
paragraph (2), removing ‘‘see PGI
PART 205—PUBLICIZING CONTRACT 225.7002–1(b)’’ and adding ‘‘see PGI 252.225–7006 Acquisition of the American
ACTIONS 225.7002–1(a)(2)’’ in its place; and Flag.
■ h. Adding a new paragraph (b).
205.301 [Amended] As prescribed in 225.7002–3(c), insert
The addition reads as follows:
■ 2. Amend section 205.301, in the following clause:
paragraph (a)(S–70)(i) introductory text 225.7002–1 Restrictions.
ACQUISITION OF THE AMERICAN FLAG
by removing ‘‘225.7002–1(a)(2) through * * * * * (AUG 2015)
(10)’’ and adding ‘‘225.7002–1(a)(1)(ii) (b) In accordance with section 8123 of
(a) Definition. United States, as used in this
through (x)’’ in its place. the Department of Defense
clause, means the 50 States, the District of
Appropriations Act, 2014 (Pub. L. 113– Columbia, and outlying areas.
PART 212—ACQUISITION OF 76, division C, title VIII), and the same (b) If the Contractor is required to deliver
COMMERCIAL ITEMS provision in subsequent Defense under this contract one or more American
appropriations acts, except as provided flags (Product or Service Code 8345), such
■ 3. Amend section 212.301 by— in 225.7002–2, do not acquire a flag of
■ a. Redesignating sections (f)(x)(C) flag(s), including the materials and
the United States (PSC 8345), unless components thereof, shall be manufactured
through (BB) as paragraphs (f)(x)(D)
such flag, including the materials and in the United States, consistent with the
through (CC), respectively; and
components thereof, is manufactured in requirements at 10 U.S.C. 2533a (commonly
■ b. Adding a new paragraph (f)(x)(C).
The addition reads as follows: the United States, consistent with the known as the ‘‘Berry Amendment’’).
requirements at 10 U.S.C. 2533a. This (c) This clause does not apply to the
212.301 Solicitation provisions and restriction does not apply to the acquisition of any end items or components
contract clauses for the acquisition of acquisition of any end-items or related to flying or displaying the flag (e.g.,
commercial items. components related to flying or flagpoles and accessories).
(f) * * * displaying the flag (e.g., flag poles and
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(x) * * * accessories). (End of clause)
(C) Use the clause at 252.225–7006, [FR Doc. 2015–20873 Filed 8–25–15; 08:45 am]
Acquisition of the American Flag, as 225.7002–2 [Amended]
BILLING CODE 5001 6820–06–P
prescribed in 225.7002–3(c), to comply ■ 6. Amend section 225.7002–2 by—
with section 8123 of the DoD ■ a. In paragraph (l), removing ‘‘Section
Appropriations Act, 2014 (Pub. L. 113– 8118’’ and adding ‘‘section 8118’’ in its
76, division C, title VIII), and the same place;
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Document Created: 2015-12-15 10:58:20
Document Modified: 2015-12-15 10:58:20
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | Effective August 26, 2015. | |
| Contact | Ms. Tresa Sullivan, telephone 571-372- 6089. | |
| FR Citation | 80 FR 51748 | |
| RIN Number | 0750-AI51 | |
| CFR Citation | 48
CFR
205 48 CFR 212 48 CFR 225 48 CFR 252 |
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