The Berry Amendment: Requiring Defense Procurement to Come from Domestic Sources - RL31236

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 Berry Amendment (Title 10 United States Code [U.S.C.] §2533a, Requirement to Buy Certain Articles from American Sources; Exceptions) contains a number of domestic source restrictions that prohibit DOD from acquiring food, clothing (including 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 applies to DOD purchases only.

H.R. 1960, the House-proposed National Defense Authorization Act (NDAA) for FY2014, was introduced in the House on May 14, passed the House in a recorded vote (315-108) on June 14, and was referred to the Senate on July 8, 2013. The bill contains several provisions which would, if enacted into law, impact domestic source restrictions under the Berry Amendment, including the procurement of American flags, footwear for enlisted service members, contracts for textiles and clothing, and periodic audits by the Inspector General on contracts for goods and services.

S. 1197, the Senate-proposed NDAA for FY2014, was introduced on June 20, 2013, and referred to the Armed Services Committee. S.Rept. 113-44, which accompanies S. 1197, directs both DOD and the Army to study the status of domestic sourcing for athletic footwear for enlisted members, and to determine if there are sufficient quantities and qualities to meet the needs and requirement of the Department of Defense. The committee also directs DOD to submit a report to Congress that includes any audits or auditing policy, investigations and enforcement, and other requirements relating to DOD’s contracting for textiles, clothing, and athletic footwear.

Some policy makers 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 policy makers believe that key domestic sectors (like manufacturing) 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: November 26, 2013
Number of Pages: 23
Order Number: RL31236
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