[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]



48 CFR Part 225

[DFARS Case 2004-D035]

Defense Federal Acquisition Regulation Supplement; Berry 
Amendment Memoranda

AGENCY: Department of Defense (DoD).

ACTION: Final rule.


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.


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.

Therefore, 48 CFR part 225 is amended as follows:
1. The authority citation for 48 CFR part 225 continues to read as 

    Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.


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 
    (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 
    (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 
    (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 
    (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 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]