The Berry Amendment: Requiring Defense Procurement to Come from Domestic Sources

Valerie Bailey Grasso
Specialist in Defense Acquisition

In order to protect the U.S. industrial base during periods of adversity and war, Congress passed domestic source restrictions as part of the 1941 Fifth Supplemental Department of Defense (DOD) Appropriations Act; these provisions later became the Berry Amendment. The Berry Amendment required DOD to give preference in procurement to domestically produced, manufactured, or home grown products, notably food, clothing, and fabrics, and specialty metals. The current Berry Amendment (Title 10 United States Code [U.S.C.] Section 2533a, Requirement to Buy Certain Articles from American Sources; Exceptions) contains a number of domestic source restrictions that prohibit DOD from acquiring food, clothing, fabrics (including ballistic fibers), stainless steel, and hand or measuring tools that are not grown or produced in the United States. The Berry Amendment now excludes specialty metals; Section 842 of the FY2007 Defense Authorization Act (P.L. 109-364) enacted a new legislative provision which effectively moved the specialty metal provision out of the Berry Amendment and into a separate section of Title 10. On July 29, 2009, DOD issued a final rule which addresses statutory restrictions on the acquisition of specialty metals not melted or produced in the United States. 

The Berry Amendment applies to DOD purchases only. However, the American Reinvestment and Recovery Act of 2009 (P.L. 111-5, H.R. 1) contains a provision (Section 604) that appears similar to the Berry Amendment. Section 604 of H.R. 1 affects all funds appropriated or otherwise made available to the Department of Homeland Security (DHS). These restrictions serve to prohibit DHS from the purchase of clothing, tents, tarpaulins, and certain other textiles unless the items are grown, reprocessed, reused, or produced in the United States. 

Some policymakers believe that policies like the Berry Amendment contradict free trade policies, and that the presence and degree of such competition is the most effective tool for promoting efficiencies and improving quality. On the other hand, others believe that key U.S. sectors need the protections afforded by the Berry Amendment. The debate over the Berry Amendment raises several questions, among them: (1) If the U.S. does not produce a solely domestic item, or if U.S. manufacturers are at maximum production capability, should DOD restrict procurement from foreign sources, and (2) to what extent do U.S. national security interests and industrial base concerns justify waiver of the Berry Amendment? 

This report examines the original intent and purpose of the Berry Amendment and legislative proposals to amend the application of domestic source restrictions, as well as options for Congress.


Date of Report: January 29, 2010
Number of Pages: 20
Order Number: RL31236
Price: $29.95

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