OFFICE OF THE UNDER SECRETARY OF DEFENSE

3000 DEFENSE PENTAGON

WASHINGTON, DC 2O3O1-3000

DP (DAR)

September 8, 1997

In reply refer to

DFARS Case 96-D333

D. L. 97-018

MEMORANDUM FORDIRECTORS OF DEFENSE AGENCIES DEPUTY FOR ACQUISITION AND BUSINESS MANAGEMENT,

ASN(RD&A) /ABM

DEPUTY ASSISTANT SECRETARY OF THE AIR FORCE (CONTRACTING), SAF/AQC

ASSISTANT DEPUTY ASSISTANT SECRETARY OF THE AIR FORCE(PROCUREMENT)/DIRECTOR FOR CONTRACTING

DEPUTY DIRECTOR (ACQUISITION), DEFENSE LOGISTICS AGENCY

SUBJECT: Application of Berry Amendment

We have arnended the Defense Federal Acquisition Regulation Supplement (DFARS) to revise the implementation of Section 8109 of the National Defense Appropriations Act for Fiscal Year 1997 (Pub. L. 104-208). Section 8109 provides that in applying the Berry Amendment (10 U.S.C. 2241 note), the term "synthetic fabric and coated synthetic fabric" shall be deemed to include all textile fibers and yarns that are for use in such fabrics; and that the restrictions of the Berry Amendment shall apply to contracts and subcontracts for the procurement of commercial items.

DFARS 225.7002-2 and the clause at DFARS 252.225-7012 currently limit the application of the Berry Amendment to fibers and yarns for use in synthetic fabrics that are to be used as a component of an end item in Fe4eral Supply Group 83 or 84. We have revised the DFARS to clarify that the exception applies only to the fibers and yarns, not the synthetic fabric itself; include examples to clarify what products are "textile products"; and use Federal supply groups and classes only as guidelines.

The attached final DFARS rule is effective immediately and will be included in a future Defense Acquisition Circular.

Eleanor R. Spector

Director, Defense Procurement

Attachment

cc: DSMC, Ft. Belvoir

[Federal Register: September 8, 1997 (Volume 62, Number 173)]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

DEPARTMENT OF DEFENSE

48 CFR Parts 212, 225, 244, and 252

[DFARS Case 96-D333]

Defense Federal Acquisition Regulation Supplement; Application of

Berry Amendment

AGENCY: Department of Defense (DOD).

ACTION: Final rule.

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SUMMARY: The Director of Defense Procurement has adopted as final, with changes, the interim rule that was published at 62 FR 5779 on February 7, 1997. The rule amends the Defense Federal Acquisition Regulation Supplement (DFARS) to implement Section 8109 of the National Defense Appropriations Act for Fiscal Year 1997. Section 8109 provides that, in applying the Berry Amendment, the term ``synthetic fabric and coated synthetic fabric’’ shall be deemed to include all textile fibers and yarns that are for use in such fabrics; and that the domestic source restrictions of the Berry Amendment shall apply to contracts and subcontracts for the procurement of commercial items.

EFFECTIVE DATE: September 8, 1997.

FOR FURTHER INFORMATION CONTACT:

Ms. Amy Williams, PDUSD(A&amp;T)DP(DAR), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0131; telefax (703) 602-0350. Please cite DFARS Case 96-<strong>D333</strong>.

SUPPLEMENTARY INFORMATION:

A. Background

An interim rule with request for comments was published at 62 FR 5779 on February 7, 1997. The rule amended DFARS Parts 212, 225, 244, and 252 to extend the application of the Berry Amendment domestic

source restrictions (10 U.S.C. 2241 note) to textile fibers and yarns that are for use in synthetic fabric and coated synthetic fabric; and to require flow down of the Berry Amendment restrictions to subcontracts for the procurement of commercial items. The interim rule provided an exception to the Berry Amendment restrictions for purchases of fibers and yarns that are for use in synthetic fabric or coated synthetic fabric, if such fabric is to be used as a component of an end item not classified in Federal Supply Group 83 or 84. This final rule revises the exception for fibers and yarns to apply to those that are for use in synthetic fabric or coated synthetic fabric, if such fabric is to be used as a component of an end item that is not a textile product; and provides examples of textile products, which include, but are not limited to, products in Federal Supply Groups 83 and 84.

Five respondents submitted comments on the interim rule. All comments were considered in developing the final rule.

B. Regulatory Flexibility Act

A final regulatory flexibility analysis has been performed. The analysis is summarized as follows: The legal basis for this rule is the Berry Amendment (10 U.S.C. 2241 note). There were no public comments in response to the initial regulatory flexibility analysis. However, various comments on the interim rule suggested other ways to identify the textile products to which the domestic source restrictions on textile fibers apply. As a result, the final rule uses additional examples to clarify what products are ``textile products.’’ This rule is expected to have a positive impact on small entities that provide domestic textile products or specialty metals restricted by the Berry Amendment, because it reduces foreign competition for those items. The rule imposes no new reporting, recordkeeping, or compliance requirements for offerors or contractors. There are no practical alternatives that will meet the requirements of the Berry Amendment.

A copy of the analysis may be obtained by contacting the Defense Acquisition Regulations Council, Attn: Ms. Amy Williams, PDUSD(A&amp;T)DP(DAR), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0131; telefax (703) 602-0350.

C. Paperwork Reduction Act

The Paperwork Reduction Act does not apply, because this final rule does not impose any reporting or recordkeeping requirements that require Office of Management and Budget approval under 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Parts 212, 225, 244, and 252

Government procurement.

Michele P. Peterson,

Executive Editor, Defense Acquisition Regulations Council.

Interim Rule Adopted as Final With Changes

Accordingly, the interim rule amending 48 CFR parts 212, 225, 244, and 252, which was published at 62 FR 5779 on February 7, 1997, is adopted as final with the following changes:

1. The authority citation for 48 CFR parts 212, 225, 244, and 252 continues to read as follows:

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

PART 225--FOREIGN ACQUISITION

2. Section 225.7002-1 is amended by revising paragraph (a)(9) to read as follows:

225.7002-1 Restrictions.

(a) * * *

(9) Any item of individual equipment (Federal Supply Class 8465)

manufactured from or containing any of the listed fibers, yarns, fabrics, or materials.

* * * * *

3. Section 225.7002-2 is amended by revising paragraph (j) to read as follows:

225.7002-2 Exceptions.

* * * * *

(j) Purchases of fibers and yarns that are for use in synthetic fabric or coated synthetic fabric (but not the purchase of the synthetic or coated synthetic fabric itself), if such fabric is to be used as a component of an end item that is not a textile product.

Examples of textile products, made in whole or in part of fabric, include—

(1) Draperies, floor coverings, furnishings, and bedding (Federal Supply Group 72, Household and Commercial Furnishings and Appliances);

(2) Items made in whole or in part of fabric in Federal Supply Group 83, Textile/leather/furs/apparel/findings/tents/flags, or Federal Supply Group 84, Clothing, Individual Equipment and Insignia;

(3) Upholstered seats (whether for household, office, or other use); and

(4) Parachutes (Federal Supply Class 1670).

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

4. Section 252.225-7012 is amended by revising the clause date and paragraphs (a)(10) and (b)(4) to read as follows:

252.225-7012 Preference for certain domestic commodities.

* * * * *

Preference for Certain Domestic Commodities (Sept. 1997)

(a) * * *

(10) Any item of individual equipment (Federal Supply Class 8465) manufactured from or containing such fibers, yarns, fabrics, or materials.

(b) * * *

(4) To purchase of fibers and yarns that are for use in synthetic fabric or coated synthetic fabric (but not the purchase of the synthetic or coated synthetic fabric itself), if such fabric is to be used as a component of an end item that is not a textile product. Examples of textile products, made in whole or in part of fabric, include—

(i) Draperies, floor coverings, furnishings, and bedding (Federal Supply Group 72, Household and Commercial Furnishings and Appliances);

(ii) Items made in whole or in part of fabric in Federal Supply Group 83, Textile/leather/furs/apparel/findings/tents/flags, or Federal Supply Group 84, Clothing, Individual Equipment and Insignia;

(iii) Upholstered seats (whether for household, office, or other use); and

(iv) Parachutes (Federal Supply Class 1670).

(End of clause)