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 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, 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 [Public Law (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.
One new legislation provision is contained in P.L. 111-83, the FY2011 Defense Authorization Act (H.R. 6523). The provision, Section 847, provides a non-availability 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 extends through May 16, 2011, before the final rule is issued.
The Berry Amendment applies to DOD purchases only. However, there are two legislative provisions, one proposed and another enacted, that affect the application of the Berry Amendment to the Department of Homeland Security (DHS). The proposed measure, H.R. 3116, called the Berry Amendment Extension Act, was passed by the House on September 15, 2010, and referred to the Senate Committee on Homeland Security and Governmental Affairs. The legislation was reintroduced on February 11, 2011, as H.R. 679 (Berry Amendment Extension Act) and on February 17, 2011, was referred to the House Homeland Security Subcommittee on Oversight Investigations, and Management. The other measure was enacted in the American Reinvestment and Recovery Act of 2009 (P.L. 111-5, H.R. 1), which contained Section 604. Section 604 of P.L. 111-5 affected all funds appropriated or otherwise made available to DHS. These restrictions served to prohibit DHS from the purchase of clothing, tents, tarpaulins, and certain other textiles unless the items were 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 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 potential options for Congress.
Date of Report: April 27, 2011
Number of Pages: 20
Order Number: RL31236
Price: $29.95
Follow us on TWITTER at http://www.twitter.com/alertsPHP or #CRSreports
Document available via e-mail as a pdf file or in paper form.
To order, e-mail Penny Hill Press or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.
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 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, 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 [Public Law (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.
One new legislation provision is contained in P.L. 111-83, the FY2011 Defense Authorization Act (H.R. 6523). The provision, Section 847, provides a non-availability 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 extends through May 16, 2011, before the final rule is issued.
The Berry Amendment applies to DOD purchases only. However, there are two legislative provisions, one proposed and another enacted, that affect the application of the Berry Amendment to the Department of Homeland Security (DHS). The proposed measure, H.R. 3116, called the Berry Amendment Extension Act, was passed by the House on September 15, 2010, and referred to the Senate Committee on Homeland Security and Governmental Affairs. The legislation was reintroduced on February 11, 2011, as H.R. 679 (Berry Amendment Extension Act) and on February 17, 2011, was referred to the House Homeland Security Subcommittee on Oversight Investigations, and Management. The other measure was enacted in the American Reinvestment and Recovery Act of 2009 (P.L. 111-5, H.R. 1), which contained Section 604. Section 604 of P.L. 111-5 affected all funds appropriated or otherwise made available to DHS. These restrictions served to prohibit DHS from the purchase of clothing, tents, tarpaulins, and certain other textiles unless the items were 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 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 potential options for Congress.
Date of Report: April 27, 2011
Number of Pages: 20
Order Number: RL31236
Price: $29.95
Follow us on TWITTER at http://www.twitter.com/alertsPHP or #CRSreports
Document available via e-mail as a pdf file or in paper form.
To order, e-mail Penny Hill Press or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.
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