[Federal Register: July 26, 2005 (Volume 70, Number 142)]
[Rules and Regulations]
[Page 43073-43074]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26jy05-23]
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DEPARTMENT OF DEFENSE
48 CFR Part 225
[DFARS Case 2004-D035]
Defense Federal Acquisition Regulation Supplement; Berry
Amendment Memoranda
AGENCY: Department of Defense (DoD).
ACTION: Final rule.
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SUMMARY: DoD has issued a final rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to implement policy regarding
acquisitions for which DoD determines that domestic items are not
available to fulfill DoD requirements in a satisfactory quality and
sufficient quantity at U.S. market prices.
DATES: Effective July 26, 2005.
FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, Defense Acquisition
Regulations Council, OUSD (AT&L) DPAP (DAR), IMD 3C132, 3062 Defense
Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0328;
facsimile (703) 602-0350. Please cite DFARS Case 2004-D035.
SUPPLEMENTARY INFORMATION:
A. Background
10 U.S.C. 2533a (the Berry Amendment) requires DoD to acquire
certain items from domestic sources. 10 U.S.C. 2533a(c) provides an
exception to this requirement if the Secretary of Defense or the
Secretary of the military department concerned determines that
satisfactory quality and sufficient quantity of such items cannot be
procured as and when needed at U.S. market prices. DoD has issued the
following memoranda regarding domestic nonavailability determinations
under 10 U.S.C. 2533a(c):
The Deputy Secretary of Defense memorandum of May 1, 2001, provides
that the Under Secretary of Defense for Acquisition, Technology, and
Logistics, and the Secretaries of the military departments may make
domestic nonavailability determinations under the Berry Amendment, but
may not redelegate this authority. The memorandum also requires an
analysis of alternatives, and a certification as to why such
alternatives are unacceptable.
The Under Secretary of Defense (Acquisition, Technology, and
Logistics) memorandum of October 22, 2004, requires Congressional
notification of any domestic nonavailability determinations involving
titanium or products containing titanium.
This final rule amends DFARS 225.7002-2(b) to reflect the
requirements of the DoD memoranda.
This rule was not subject to Office of Management and Budget review
under Executive Order 12866, dated September 30, 1993.
B. Regulatory Flexibility Act
This rule will not have a significant cost or administrative impact
on contractors or offerors, or a significant effect beyond the internal
operating procedures of DoD. Therefore, publication for public comment
is not required. However, DoD will consider comments from small
entities concerning the affected DFARS subpart in accordance with 5
U.S.C. 610. Such comments should cite DFARS Case 2004-D035.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the rule does
not impose any information collection requirements that require the
approval of the Office of Management and Budget under 44 U.S.C. 3501,
et seq.
List of Subjects in 48 CFR Part 225
Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations System.
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Therefore, 48 CFR part 225 is amended as follows:
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1. The authority citation for 48 CFR part 225 continues to read as
follows:
Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.
PART 225--FOREIGN ACQUISITION
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2. Section 225.7002-2 is amended by adding paragraphs (b)(1) through
(5) to read as follows:
225.7002-2 Exceptions.
* * * * *
(b) * * *
(1) The following officials are authorized, without power of
[[Page 43074]]
redelegation, to make such a domestic nonavailability determination:
(i) The Under Secretary of Defense (Acquisition, Technology, and
Logistics).
(ii) The Secretary of the Army.
(iii) The Secretary of the Navy.
(iv) The Secretary of the Air Force.
(2) The supporting documentation for the determination shall
include--
(i) An analysis of alternatives that would not require a domestic
nonavailability determination; and
(ii) A written certification by the requiring activity, with
specificity, why such alternatives are unacceptable.
(3) Defense agencies shall follow the procedures at PGI 225.7002-
2(b)(3) when submitting a request for a domestic nonavailability
determination.
(4) If an official listed in paragraph (b)(1)(ii) through (iv) of
this subsection makes a domestic nonavailability determination for the
acquisition of titanium or a product containing titanium, that official
shall--
(i) Notify the congressional defense committees at least 10 days
before the award of a contract that relies on such a determination; and
(ii) Provide a copy of the notification and the determination to
the Director, Defense Procurement and Acquisition Policy, as specified
in PGI 225.7002-2(b)(4).
(5) See PGI 225.7002-2(b)(5) for related policy memoranda.
* * * * *
[FR Doc. 05-14623 Filed 7-25-05; 8:45 am]
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