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Wednesday, January 25, 2012

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

Valerie Bailey Grasso
Specialist in Defense Acquisition

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 potential options for Congress. 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 known as the Berry Amendment. 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 (like military uniforms), fabrics (including ballistic fibers), stainless steel, and hand or measuring tools that are not grown or produced in the United States. The Berry Amendment currently applies to DOD purchases only.

There are several new provisions affecting the Berry Amendment. H.R. 2955, the “American Shoes for American Servicemembers Act,” was introduced on September 15, 2011 by Representative Mike Michaud and referred to the House Armed Services Committee. This provision would amend Title 10 U.S.C. Section 2533a(b)(1)(B) by clarifying that the Berry Amendment includes athletic footwear as well as the materials and components of the footwear.

On November 18, 2011, DOD adopted the final rule to implement Section 821 of the Ike Skelton National Defense Authorization Act for FY2011 (P.L. 111-383), which prohibits DOD from specifying the use of fire-resistant, rayon fiber in solicitations issued before January 1, 2015. Section 821 also requires the Comptroller General to submit reports to the House and Senate Armed Services Committees, not later than March 15, 2011, that assessed the supply chain for the procurement of fire-resistant and fire-retardant fibers and materials for the production of military uniforms. The GAO report was submitted to Congress in June 2011.

Section 847 of P.L. 111-383, the National Defense Authorization Act for FY2011 provided a nonavailability exception for the procurement of domestic hand or measuring tools. On March 17, 2011, DOD issued an interim rule in accordance with Section 847. The interim rule was published in the Federal Register and the public comment period extended through May 16, 2011. The final rule was issued on August 19, 2011.

H.R. 679, the Berry Amendment Extension Act, was introduced on February 11, 2011, and referred to the House Homeland Security Subcommittee on Oversight, Investigations, and Management. The proposed measure would amend Subtitle H of Title VIII of the Homeland Security Act of 2002 to prohibit the Department of Homeland Security 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, some other policymakers believe that key domestic sectors need the protections afforded by the Berry Amendment. The debate over the Berry Amendment raises several questions, among them (1) If the United States 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?

Date of Report: January 13, 2012
Number of Pages: 20
Order Number: RL31236
Price: $29.95

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