52132 Federal Register / Vol. 76, No. 161 / Friday, August 19, 2011 / Rules and Regulations 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 225 

RIN 0750–AH17 

Defense Federal Acquisition 

Regulation Supplement; 

Nonavailability Exception for 

Procurement of Hand or Measuring 

Tools (DFARS Case 2011–D025) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is adopting an interim 

rule as a final rule with minor changes. 

The interim rule implemented part of 

the National Defense Authorization Act 

for Fiscal Year 2011, which provides a 

domestic nonavailability exception to 

the requirement known as the Berry 

Amendment to acquire only domestic 

hand or measuring tools. 

DATES: Effective date: August 19, 2011. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Amy Williams, telephone 703–602– 

0328. 

SUPPLEMENTARY INFORMATION:

I. Background 

DoD published an interim rule in the 

Federal Register (76 FR 14588) on 

March 17, 2011, to implement section 

847 of the National Defense 

Authorization Act for Fiscal Year 2011 

(Pub. L. 111–383). Section 847 provides 

a domestic nonavailability exception to 

the requirement at 10 U.S.C. 2533a 

(Berry Amendment) to acquire only 

domestic hand or measuring tools. The 

domestic nonavailability exception was 

previously limited to the items covered 

in 10 U.S.C. 2533(b)(1) (food, clothing, 

fabrics, and fibers). 

The public comment period closed on 

May 16, 2011. One respondent 

submitted comments on the interim 

rule. 

II. Discussion/Analysis 

A. Public Comments 

The respondent noted high 

unemployment and recommended that, 

in order to create more employment for 

U.S. workers, the Government should 

minimize (if not eliminate) purchases 

from outside the United States, if the 

purchases can be procured within the 

United States. 

The respondent suggested that 

sometimes nonavailability of domestic 

hand or measuring tools may be a 

planning issue. The respondent 

suggested forecasting DoD needs 12–18 

months in advance, providing 

acquisition history for the past 2 or 3 

years, and posting all this data on a Web 

site open to all CCR-registered 

organizations. According to the 

respondent, U.S. companies could then 

do a better job of planning, including 

the ramp-up of supply to ensure 

availability. The respondent believes 

that this action could potentially 

eliminate the need for DoD to source 

hand or measuring tools from sources 

outside of the United States. 

Response: As required by 10 U.S.C. 

2533a, DoD does not purchase foreign 

hand or measuring tools, if domestically 

manufactured tools can be acquired. 

There is definitely a need to interface 

with the industry about DoD 

requirements. Better forecasting for 

everything that DOD purchases clearly 

benefits all stakeholders. U.S. 

companies already have access to 

acquisition history for National Stock 

Numbers (NSNs) through such sources 

as FedBizOpps and DIBBS (Defense 

Logistics Agency Internet Bid Board 

System). For items that DoD manages 

and stocks, Government demand 

planners are able to produce a 12-month 

forecast in order to assist the industry in 

understanding its requirements. 

However, not all items are centrally 

managed. 

DoD does not manage acquisition of 

hand or measuring tools. These items 

are assigned to GSA for supply 

management. This makes it difficult for 

DoD to predict and aggregate planned 

purchases across the entire DoD. In FY 

2010, DoD had 3,850 contract actions for 

acquisition of hand or measuring tools, 

for a total dollar value of $347 million. 

Furthermore, adequate planning and 

notification to industry of an annual 

forecast will not be effective in 

obtaining domestic hand or measuring 

tools if there is an insufficient domestic 

supplier base. The fact that DoD only 

received one response to the interim 

rule may indicate that an insufficient 

pool of domestic contractors is available 

to supply DoD’s requirements for hand 

or measuring tools as and when needed, 

in a satisfactory quality and sufficient 

quantity. The reason for enactment of 

the legislation is that market research 

has indicated that some types of 

commercial hand or measuring tools are 

no longer manufactured in the United 

States. Many hand or measuring tools 

are commercially available off-the-shelf 

(COTS) items. Revenue derived from 

Government sales is generally a very 

small percentage of overall revenue for 

manufacturers of commercially 

available off-the-shelf items. To the 

extent that the commercial market has 

transitioned to purchase of foreign hand 

or measuring tools, DoD does not 

generally buy sufficient quantities of 

these tools to influence the industry to 

produce domestic tools, unless there is 

also a commercial market for them. 

B. Other Changes 

The final rule includes a conforming 

change to 225.7002–2(c), which 

provides an exception to the restrictions 

of the Berry Amendment for 

acquisitions of items listed in FAR 

25.104(a), Nonavailable articles. 

Previously, hand or measuring tools 

were excluded from this exception 

because the statute did not provide an 

exception based on domestic 

nonavailability. Now that domestic 

nonavailability is an authorized 

exception, there is no need to exclude 

them at 225.7002–2(c). 

Additionally, the final rule includes 

language at 225.7002–1(b) that directs 

contracting officers to the corresponding 

site in DFARS Procedures, Guidance, 

and Information for additional guidance 

on interpretation of the Berry 

Amendment restriction on foreign 

acquisition of hand or measuring tools. 

III. Regulatory Flexibility Act 

DoD certifies that this rule will not 

have a significant economic impact on 

a substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act because the rule only 

allows purchase of hand or measuring 

tools from foreign sources when such 

tools are not available from domestic 

sources. If no domestic sources produce 

the tools, then allowing purchase from 

a foreign source will not impact any 

U.S. small business. 

IV. Paperwork Reduction Act 

The rule does not impose 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 Part 225 

Government procurement. 

Ynette R. Shelkin, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, the interim rule published 

at 76 FR 14588 on March 17, 2011, is 

adopted as final with the following 

changes: 

PART 225—FOREIGN ACQUISITION 

■ 1. The authority citation for 48 CFR 

part 225 continues to read as follows: 

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

chapter 1. 


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Federal Register / Vol. 76, No. 161 / Friday, August 19, 2011 / Rules and Regulations 52133 

■ 2. Amend section 225.7002–1 by 

revising paragraph (b) to read as follows: 

225.7002–1 Restrictions. 

* * * * * 

(b) Hand or measuring tools, unless 

the tools were produced in the United 

States. For additional guidance, see PGI 

225.7002–1(b). 

■ 3. Amend section 225–7002–2 by 

revising paragraph (c) to read as follows: 

225.7002–2 Exceptions. 

* * * * * 

(c) Acquisitions of items listed in FAR 

25.104(a). 

* * * * * 

[FR Doc. 2011–20531 Filed 8–18–11; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 216, 225, and 252 

RIN 0750–AH28 

Defense Federal Acquisition 

Regulation Supplement; Contractors 

Performing Private Security Functions 

(DFARS Case 2011–D023) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Interim rule. 

SUMMARY: DoD is issuing an interim rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to implement sections of the 

National Defense Authorization Act 

(NDAA) for Fiscal Year (FY) 2008, 

which establish minimum processes 

and requirements for the selection, 

accountability, training, equipping, and 

conduct of personnel performing private 

security functions. 

DATES: Effective Date: August 19, 2011. 

Comment Date: Comments on the 

interim rule should be submitted in 

writing to the address shown below on 

or before October 18, 2011, to be 

considered in the formation of the final 

rule. 

Æ Regulations.gov: http:// 

www.regulations.gov. Submit comments 

via the Federal eRulemaking portal by 

inputting ‘‘DFARS Case 2011–D023’’ 

under the heading ‘‘Enter keyword or 

ID’’ and selecting ‘‘Search.’’ Select the 

link ‘‘Submit a Comment’’ that 

corresponds with ‘‘DFARS Case 2011– 

D023.’’ Follow the instructions provided 

at the ‘‘Submit a Comment’’ screen. 

Please include your name, company 

name (if any), and ‘‘DFARS Case 2011– 

D023’’ on your attached document. 

Æ E-mail: dfars@osd.mil. Include 

DFARS Case 2011–D023 in the subject 

line of the message. 

Æ Fax: 703–602–0350. 

Æ Mail: Defense Acquisition 

Regulations System, Attn: Meredith 

Murphy, OUSD (AT&L) DPAP/DARS, 

Room 3B855, 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: 

Meredith Murphy, Defense Acquisition 

Regulations System, OUSD (AT&L) 

DPAP/DARS, Room 3B855, 3060 

Defense Pentagon, Washington, DC 

20301–3060. Telephone 703–602–1302; 

facsimile 703–602–0350. 

SUPPLEMENTARY INFORMATION:

I. Background 

The NDAA for FY 2008 (Pub. L. 110– 

181, enacted October 28, 2008), section 

862, entitled ‘‘Contractors Performing 

Private Security Functions in Areas of 

Combat Operations or Other Significant 

Military Operations,’’ was amended by 

section 853 of the NDAA for FY 2009 

(Pub. L. 110–417, enacted October 14, 

2008) and sections 831 and 832 of the 

NDAA for FY 2011 (Pub. L. 111–383, 

enacted January 7, 2011). An interim 

final rule was published in the Federal 

Register on July 17, 2009, to meet the 

mandate of section 862 of the FY 2008 

NDAA to provide policy and guidance 

regulating the actions of DoD and other 

Governmental private security 

contractors. A clause to cover the 

interagency requirements will be 

covered by a separate and subsequent 

FAR rule currently under development. 

This interim rule is focused solely on 

providing implementing contractual 

language and a contract clause 

mandated by statute and applicable to 

DoD contracts only. While section 862 

of the 2008 NDAA required 

standardization of rules for private 

security contractors among Government 

agencies, DOD’s underlying instruction, 

the Department of Defense Instruction 

(DoDI) 3020.50, entitled ‘‘Private 

Security Contractors Operating in Areas 

of Contingency Operations, Combat 

Operations, or Other Significant 

Operations’’ at http://www.dtic.mil/whs/ 

directives/corres/pdf was written to 

cover both DoD private security 

contractors (in all contingency 

operations) and interagency private 

security contractors (in combat 

operations). This interim rule 

implements the legislation by 

establishing (1) regulations addressing 

the selection, training, equipping, and 

conduct of personnel performing private 

security functions in areas of 

contingency operations, complex 

contingency operations, or other 

military operations or exercises that are 

designated by the combatant 

commander, (2) a contract clause, and 

(3) remedies. 

Section 833 of the NDAA for FY 2011 

is entitled ‘‘Standards and Certification 

for Private Security Contractors.’’ This 

provision mandates the establishment of 

third-party certification processes for 

determining whether private security 

contractors adhere to standards for 

operational and business practices. The 

required industry standard is currently 

under development and will be 

incorporated in the DFARS once the 

standard is published. 

The regulations implementing the 

referenced statutory provisions are in 

DFARS subpart 225.3, entitled 

‘‘Contracts Performed Outside the 

United States.’’ DFARS 225.302–3, 

Definitions, provides the definition of 

‘‘private security functions’’ from 

section 862, as amended, and the 

definition of ‘‘complex contingency 

operations’’ from JP–102 (DoD 

Dictionary). This coverage does not 

apply to the performance of private 

security functions within the United 

States or outside the United States in 

areas that are not (a) contingency 

operations, (b) complex contingency 

operations, or (c) other military 

operations designated by the combatant 

commander. Importantly, DFARS 

225.302 applies to the performance of 

private security functions in the 

applicable areas, without regard to 

whether the DoD contractor is a private 

security contractor. For example, a 

contractor delivering construction 

materials in an area of contingency 

operations might subcontract with a 

private security contractor to protect its 

supplies and employees during 

delivery. Although the supplier of the 

construction materials is not a private 

security contractor, the requirements of 

DFARS 252.225–7039, Contractors 

Performing Private Security Functions, 

are applicable. As a further example, the 

same contractor, if delivering 

construction materials to a base in 

Germany is not governed, at this time, 

by the requirements and limitations of 

DFARS 252.225.7039 because Germany 

is not an area of contingency operations, 


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