[Federal Register Volume 76, Number 161 (Friday, August 19, 2011)]
[Rules and Regulations]
[Pages 52132-52133]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-20531]



[[Page 52131]]

Vol. 76

Friday,

No. 161

August 19, 2011

Part III





Department of Defense





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Defense Acquisition Regulations System





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48 CFR Parts 201, 209, 216, et al.





Defense Federal Acquisition Regulation Supplements; Nonavailability 
Exception for Procurement of Hand or Measuring Tools (DFARS Case 2011-
D025), Contractors Performing Private Security Functions (DFARS Case 
2011-D023), Identification of Critical Safety Items (DFARS Case 2010-
D022), Government Property (DFARS Case 2009-D008); Final Rules

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

[[Page 52132]]


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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.

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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

0
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.


[[Page 52133]]



0
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).

0
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