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

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URL: https://www.frixlaw.com/law-library/documents/crs%3ARL31236

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** February 24, 2014
- **Citation:** RL31236

## Text

The Berry Amendment: Requiring Defense
Procurement to Come from Domestic Sources
(name redacted)
Specialist in Defense Acquisition
February 24, 2014

Congressional Research Service
7-....
www.crs.gov
RL31236

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

Summary
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.
On January 31, 2014, DOD issued a solicitation designed to conduct market research to assess the
marketplace for the availability of American-made shoes fully compliant with the Berry
Amendment. According to one February 2014 press report, four firms have told the Defense
Logistics Agency that they could produce U.S.-made athletic footwear for military personnel.
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 contained 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. Senate Report (S. Rept.) 113-44, which accompanied S. 1197,
directed both DOD and the Army to study the status of domestic sourcing for athletic footwear for
enlisted members, and to determine if there were sufficient quantities and with the appropriate
qualities to meet the needs and requirement of DOD. The committee also directed DOD to submit
a report to Congress including any audits or auditing policy, investigations and enforcement, and
other requirements relating to DOD’s contracting for textiles, clothing, and athletic footwear.
P.L. 113-66, the NDAA for FY2014 (H.R. 3304) was signed into law on December 26, 2013. The
Berry Amendment-related provisions proposed in H.R. 1960 and S. 1197 were not entirely
incorporated into the enacted bill. A discussion was provided in the legislative text and joint
explanation statement which accompanied H.R. 3304.
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?

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

Contents
Major Developments ....................................................................................................................... 1
Defense Logistics Agency Issues Formal Notice for American-made Shoes ........................... 1
H.R. 3304, the National Defense Authorization Act for FY2014 ............................................. 1
Compliance with domestic source requirements for footwear furnished to enlisted
members of the Armed Forces upon their initial entry into the Armed Forces ................ 2
Periodic audits of contracting compliance by the Inspector General of the
Department of Defense (Section 1601)............................................................................ 2
H.R. 1960, the House-proposed National Defense Authorization Act for Fiscal Year
2014........................................................................................................................................ 3
Contracting for Textiles and Clothing ................................................................................. 4
S. 1197, the Senate-proposed National Defense Authorization Act for FY2014 ...................... 4
Department of Defense’s Procurement of American Flags ....................................................... 5
Other Legislative Provisions ..................................................................................................... 6
Legislation Enacted............................................................................................................. 6
GAO Reports on the Berry Amendment ................................................................................... 7
The Berry Amendment and DHS .............................................................................................. 9
Legislation Enacted............................................................................................................. 9
Legislation Proposed........................................................................................................... 9
Berry Amendment Resources ........................................................................................................ 10
Background ................................................................................................................................... 10
Controversy over the Berry Amendment ........................................................................................ 11
History of the Berry Amendment .................................................................................................. 12
When Was It Enacted and Why? ............................................................................................. 12
How Does the Buy American Act Differ from the Berry Amendment? ................................. 13
What Is the Relevance of the Berry Amendment Today? ....................................................... 14
Application of the Berry Amendment ........................................................................................... 16
Department of Defense Views of the Berry Amendment ........................................................ 16
Other Views ............................................................................................................................. 16
Options for Congress ..................................................................................................................... 17
Option 1: Take No Action, Retain the Berry Amendment as Enacted .................................... 17
Option 2: Eliminate Some Selected Restrictions .................................................................... 18
Option 3: Adopt a “Componency Standard” ........................................................................... 18
Option 4: Study the Lessening or Elimination of Provisions .................................................. 19
Option 5: Study What Percentage of Domestic Clothing, Textiles, Food, and
Specialty Metals Is Sold to the Military............................................................................... 19
Option 6: Appoint a “Berry Amendment Commission” .......................................................... 19
Option 7: Audit and Investigate Berry Amendment Contracts................................................ 19
Legislative Activity ....................................................................................................................... 20
113th Congress ......................................................................................................................... 20
Legislation Proposed......................................................................................................... 20
112th Congress ......................................................................................................................... 21
Legislation Enacted........................................................................................................... 21
Legislation Proposed......................................................................................................... 21
th
111 Congress ......................................................................................................................... 21
Legislation Proposed......................................................................................................... 21

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

110th Congress ......................................................................................................................... 22
Legislation Proposed......................................................................................................... 22

Contacts
Author Contact Information .......................................................................................................... 22

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Major Developments
Defense Logistics Agency Issues Formal Notice for American-made
Shoes
On January 31, 2014, DOD issued a solicitation designed to conduct market research to assess the
availability of American-made shoes fully compliant with the Berry Amendment.1 The
solicitation appeared in Federal Business Opportunities, and stated that there is no current
contract for shoes, or a guarantee that a contract is or will be forthcoming. Excerpts of the
solicitation follow. Responses to the solicitation were requested by February 18, 2014.
In order to assess the marketplace, we request interested providers identify all Berry
Compliant Athletic (Running) shoes being sold in the commercial marketplace to
include: (1) a general description of each item, including the various fits and sizes, (2) the
volume of commercial sales for each of those products for the past 1 to 3 years, (3) cost
and/or selling price, (4) manufacturing capacity of those items to include any minimum
order quantities, economic production quantities as well as monthly and annual maximum
production capabilities (5) production lead time and (6) manufacturing location.
For those capable of manufacturing a domestically Compliant Athletic (Running) Shoe
but have not yet produced or sold any, please provide, to the extent possible, the
information requested above along with any additional actions you would need to take in
order to make those products available in the commercial marketplace.
Additionally, please be sure to confirm that your product offering is fully domestic,
including all components materials and subcomponent assemblies. 2

According to one press report, DLA has announced that four companies have reported being
capable of producing 100% domestic, U.S.-made, athletic footwear for military personnel.3

H.R. 3304, the National Defense Authorization Act for FY2014
P.L. 113-66, the NDAA for FY2014 (H.R. 3304) was signed into law on December 26, 2013.
Some of the Berry Amendment-related provisions proposed in H.R. 1960 and S. 1197 were not
incorporated into the enacted bill. A discussion was provided in the joint explanation statement
which accompanied the bill. Excerpts appear below.4

1

252.225-7012 Preference for Certain Domestic Commodities.
Defense Logistics Agency. Athletic Footwear-Berry Compliant. Solicitation Number SPE1C1, January 31, 2014, at
https://www.fbo.gov/?s=opportunity&mode=form&id=c05c58a24e25bc85a16b8ddf7a34c7ec&tab=core&_cview=0.
For press reports, see “Only in the USA: Lawmakers push for American-made, military-issue sneakers for recruits. Air
Force Times, February 17, 2014. Accessed online at http://www.airforcetimes.com/article/20140218/NEWS07/
302180021/Lawmakers-push-American-made-military-issue-sneakers.
3
Wright, Austin. Four Firms Answer DOD Call For U.S.-Made Sneakers. Politico Pro online, February 24, 2014.
According to the article, Stacey Hajdak from DLA Troop Support spoke on behalf of DLA. CRS attempted to contact
DLA on February 21, 2014 but did not receive a response.
4
P.L. 113-66 was signed into law on December 26, 2013. See Legislative Text and Joint Explanatory Statement to
accompany H.R. 3304 (Committee Print).
2

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

Compliance with domestic source requirements for footwear furnished to
enlisted members of the Armed Forces upon their initial entry into the
Armed Forces
The House bill contained a provision (Section 839) that would amend section 418 of title
37, United States Code, by requiring the Department of Defense to issue athletic footwear
compliant with the requirement detailed in section 2533a of title 10, United States Code,
to members of the Armed Forces upon their initial entry in lieu of a cash allowance.
The Senate committee reported bill contained no similar provision.
The agreement does not contain the provision.
We note that Congress passed the Berry Amendment in 1941 to ensure that American
soldiers train and operate, to the greatest extent practicable, in American-made materials.
The Berry Amendment specifically covers footwear listed in Federal Supply Class 8430
or 8435.
The Army, in 2001, and the Air Force, in 2008, have moved away from issuing athletic
footwear to new recruits. Instead, new recruits are given an allowance to acquire athletic
footwear from the service exchange.
During this period of time, no athletic footwear was available that could have met the
requirements of the Berry Amendment without a waiver. It has been reported that at least
one domestic contractor is now producing such footwear.
Therefore, we direct the Under Secretary of Defense for Acquisition, Technology and
Logistics to issue a Sources Sought to determine whether there are any domestic
manufacturers of Berry Amendment compliant athletic footwear that meets the
Department’s requirements.
We further direct that any responses to the Sources Sought be evaluated by the Defense
Logistics Agency and an independent entity to determine whether (1) such offered
athletic footwear meets the requirements of the Berry Amendment and (2) whether
Department requirements are actually met. Such review should consider the various sizes
and fits of athletic shoes offered, cost, and capacity of suppliers to meet military
requirements.5

Periodic audits of contracting compliance by the Inspector General of the
Department of Defense (Section 1601)
The House bill contained a provision (Section 1601) that would require the Inspector
General of the Department of Defense to conduct an audit of the Department’s
compliance with contracting
practices and policies related to procurement under section 2533aof title 10, United States
Code, which pertains to the requirement to buy certain articles from American sources
and is frequently referred to as the ‘‘Berry Amendment.’’ This section would also require
the Inspector General to include the findings of such periodic audits as part of the
semiannual report transmitted to congressional committees as required by the Inspector
General Act of 1978 (P.L. 95-452).

The Senate committee-reported bill contained no similar provision.

5

P.L. 113-66. See Legislative Text and Joint Explanatory Statement accompanying H.R. 3304 (Committee Print.),
pages 607-608.

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

The agreement contains the provision with a clarifying amendment.6
See the following excerpt from H.R. 3304.

Section 1601. Periodic Audits of Contracting Compliance by Inspector General of
the Department of Defense
(a) Requirement for Periodic Audits of Contracting Compliance-The Inspector General of
the Department of Defense shall conduct periodic audits of contracting practices and
policies related to procurement under section 2533a of title 10, United States Code.
(b) Requirement for Additional Information in Semiannual Reports-The Inspector
General of the Department of Defense shall ensure that findings and other information
resulting from audits conducted pursuant to subsection (a) are included in the semiannual
report transmitted to congressional committees under section 8(f)(1) of the Inspector
General Act of 1978 (5 U.S.C. App.).7

H.R. 1960, the House-proposed National Defense Authorization Act
for Fiscal Year 2014
H.R. 1960 was introduced in the House on May 14, passed the House in a recorded vote (315108) on June 14, and was referred to the Senate on July 8, 2013. The bill contained several
provisions which would, if enacted into law, impact domestic source restrictions.









Section 817 would have amended 10 U.S.C. 2533b by requiring the procurement
of American flags to come from domestic sources;8
Section 833 would have required DOD to report to Congress, within 180 days of
enactment of the act, on supply chain vulnerabilities during sole source
procurement. The report would include a list of the components in the DOD
supply chain for which one supplier controls over 50% of the global market, a list
of supply chain parts where there is inadequate information to determine whether
there is a single source for components, as well as the Secretary of Defense’s
recommendations on which single source suppliers create vulnerabilities and
recommendations on how to reduce them;
Section 839would have required DOD to meet domestic sourcing requirements
for footwear issued to enlisted members, provided that DOD can certify that
there are at least two domestic manufacturers of footwear that can meet the
requirements of the Berry Amendment;9
Section 1601 would have required the DOD Inspector General to conduct
periodic audits of contracting practices and policies related to the Berry
Amendment. These audits shall be conducted at least once every three years; and
H.Rept. 113-102 (which accompanied H.R. 1960) contained two “Items of
Special Interest” that reflected the Committee’s interest and concern over the

6

Ibid., p. 698.
H.R. 3304, Subtitle A. Defense Industrial Base Matters.
8
For further information, see “Department of Defense’s Procurement of American Flags.”
9
H.R. 2188 (§839) was introduced on May 23, 2013 and referred to the House Armed Services Committee. A
companion bill, S. 1051, was introduced on the same day and referred to the Senate Armed Services Committee.
7

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

enforcement of domestic source provisions under the Berry Amendment, as
described here.

Contracting for Textiles and Clothing
The committee supports maintaining the integrity of section 2533a of title 10, United
States Code, commonly referred to as the `Berry Amendment,’ which requires 100% U.S.
content for certain products sourced for the Armed Forces. The committee is concerned
with protecting the supply chain and domestic production base for components and
weapon systems that are vital to the Armed Forces. In addition, the practice of sourcing
certain products and materials from foreign entities in violation of the Berry Amendment
may harm the domestic industrial base, as well as result in U.S. job losses. Therefore,
elsewhere in this Act, the committee includes a provision that would require the Inspector
General of the Department of Defense to periodically review the Department’s
compliance with established restrictions.10
Periodic Audits of Contracting Compliance by the Inspector General of the Department
of Defense
This section would require the Inspector General of the Department of Defense to
conduct an audit of the Department’s compliance with contracting practices and policies
related to procurement under section 2533a of title 10, United States Code, which
pertains to the requirement to buy certain articles from American sources and is
frequently referred to as the `Berry Amendment.’ This section would also require the
Inspector General to include the findings of such periodic audits as part of the semiannual
report transmitted to congressional committees as required by the Inspector General Act
of 1978 (P.L. 95-452).11

S. 1197, the Senate-proposed National Defense Authorization Act
for FY2014
S. 1197 was introduced on June 20, 2013, and referred to the Armed Services Committee. S.Rept.
113-44, which accompanied S. 1197, directed both DOD and the Army to study the status of
domestic sourcing for athletic footwear for enlisted members, as discussed here.
Therefore, the committee directs U.S. Army Natick Soldier Research, Development, and
Engineering Center to undergo a study, to be completed no later than January 1, 2014, of
currently available Berry compliant athletic footwear to ascertain whether the
Department’s needs could be satisfied for new recruits. The committee believes this study
should review the various sizes and fit of athletic shoes required the cost and capacity of
products available in sufficient quantity and quality to meet the needs of the Department
of Defense (DOD), and whether such footwear could be made.
During roughly the last decade, certain procurement incidents and policy changes have
created some level of unease with respect to the Berry Amendment’s application to not
only athletic footwear but also textiles and clothing. As such, the committee directs DOD
to submit a publicly releasable report to the congressional defense committees that
includes, but not be limited to, any audits or auditing policy, investigations and
enforcement, incentives, procurement officer training, and regulatory interpretation
guidelines relating to the Department’s contracting for textiles and clothing contained in

10
11

H.Rept. 113-102, Title XVI. Industrial Base Matters, Items of Special Interest.
§1601, H.R. 1960.

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Federal Supply Codes 83 and 84, and athletic footwear listed in Federal Supply Class
8430 and 8435.12

Department of Defense’s Procurement of American Flags
In light of the public debate raised concerning the announcement that U.S. Olympic uniforms
were procured from foreign sources, some questions have been raised concerning DOD’s
procurement of American flags. CRS contacted officials from the Defense Logistics Agency and
asked the following questions. DLA officials provided answers to those specific questions, as
provided below.13
1. From what sources does DOD procure American flags?
DOD procures flags through DLA Troop Support. DLA Troop Support does not purchase
flags that are not made in the U.S.

2. Is the procurement of U.S. flags under the authority of the Berry Amendment?
Why or why not?
U.S. flags are not specifically included in the Berry Amendment, but the fabric used to
manufacture flags is covered under Title 10, USC §2533a (b) (1) (D). Although the Berry
Amendment does not apply to purchases of Berry-covered items under $150,000 [10
USC §2533a (h)], the Buy American Act does apply.

3. Are U.S. flags specifically exempted from the Berry Amendment?
No. U.S. flags are not specifically exempted from the Berry Amendment. However, it
should be noted that only items specifically listed in the Berry Amendment are covered
[10 USC §2533a (b)], so an item does not have to be specifically exempted in order not to
be covered by the Berry Amendment. As noted in response to question 2, the fabric used
in flags is covered by the Berry Amendment. The Berry Amendment coverage of rayon
used in flags and other military clothing and textile items was waived in 2001 by the
Under Secretary of Defense (Acquisition, Technology and Logistics) by means of a
domestic non-availability determination (DNAD) based on a determination that it is
domestically unavailable. This determination was made pursuant to a Berry Amendment
provision authorizing waiver of its coverage based on domestic non-availability of a
covered item (10 USC §2533a(c)). Market research was conducted as recently as 2011,
which confirmed that rayon yarn/thread is still not available domestically.

4. Does the Department of Defense have contracts with domestic suppliers of U.S.
flags? Is there a list of the domestic flag producers?
Yes. DLA has several Long Term Contracts (LTC) and has also made multiple small
purchases, all with domestic suppliers. There is no list of domestic flag producers. DLA
currently contracts with the following vendors: Allied Materials, Kansas City, MO;
Alphasoft/Dawn’s Early Light, Bellevue, WA; US Flag & Signal, Portsmouth, VA;
Valley Forge Flag Company, Wyomissing, PA, and All Seasons, Post Falls, ID.

5. If the Department of Defense is purchasing U.S. flags from U.S. companies, are
they using non-U.S. sourced materials for the flags? If so, what materials,
countries of origin, and in what quantities (fiscal year)?

12

Subtitle D, Items of Special Interest, Application of the Berry Amendment to the Acquisition of Athletic Footwear in
the Department of Defense.
13
The following information was provided to CRS, from DLA officials, on July 19, 2012.

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As noted in response to question 3, rayon is not domestically available. If the flag
specification calls for a rayon component, rayon is covered under the 2001 DNAD
referred to an answer to question 3 above. We are not aware of the countries of origin for
rayon.14

Other Legislative Provisions
Legislation Enacted








Section 826 of H.R. 4310, the NDAA for FY2013, contains a provision requiring
textile components supplied by DOD for uniforms for the Afghanistan National
Army or the Afghanistan National Police is procured in accordance with the
Berry Amendment, and that no exceptions or exemptions under 10 U.S.C. 2533a
shall apply.15
P.L. 112-81, the NDAA for FY2012 (H.R. 1540) contained a provision (§368)
which required that “best value” be the basis of awards for contracts for tents and
other temporary structures regardless of where purchased, by DOD,16 or by
another agency on behalf of DOD, as well as another provision (§821) which
clarified the intent of the Berry Amendment when applied to the purchase of
tents, tarpaulins, or covers from domestic sources.17 On June 29, 2012, DOD
published an interim rule to implement Sections 368 and 821 of the NDAA for
FY2012. The public is invited to submitted comments by August 28, 2012.18
P.L. 112-81 also contained a provision (§822) that repealed the sunset of the
authority to procure fire resistant rayon fiber, from foreign sources, used for the
production of uniforms.
P.L. 111-383, the Ike Skelton National Defense Authorization Act for FY2011,
adopted the final rule (to implement §821) which prohibited DOD from
specifying the use of fire-resistant, rayon fiber in solicitations issued before
January 1, 2015. Section 821 also required 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 fireresistant and fire-retardant fibers and materials for the production of military
uniforms.19 The House Armed Services Committee expressed its concern over
DOD’s application of the Berry Amendment to tents, tarpaulins, or covers, as

14

For more information, see DOD’s Defense Procurement and Acquisition Policy’s website at http://www.acq.osd.mil/
dpap/cpic/ic/domestic_non-availability_determinations_dnads.html. Also, see GAO 11-682R, Military Uniforms:
Issues Related to the Supply of Flame Resistant Fibers for the Production of Military Uniforms, June 30, 2011, 40 p.
Accessed online at http://www.gao.gov/products/GAO-11-682R.
15
P.L. 112-239 (H.R. 4310) was signed into law on January 2, 2013.
16
§368 reads: “In determining the best value to the United States under this section, the Secretary shall consider the
total life-cycle costs of such tents or structures, including the costs associated with any equipment or fuel needed to
heat or cool such tents or structures.”
17
§2533a (b) (1) (C) of Title 10, U.S.C., is amended by inserting “and the structural components thereof” after the
word “tents.”
18
Defense Federal Acquisition Regulation Supplement: Acquisition of Tents and Other Temporary Structures (DFARS
Case 2012-D015). Federal Register, Vol. 77, No. 126, June 29, 2012, pages 38734-38736. Accessed online at
http://www.gpo.gov/fdsys/pkg/FR-2012-06-29/pdf/2012-15563.pdf.
19
GAO 11-682R, Military Uniforms: Issues Related to the Supply of Flame Resistant Fibers for the Production of
Military Uniforms, June 30, 2011, 40 p. Accessed online at http://www.gao.gov/products/GAO-11-682R.

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reflected in H.Rept. 111-419 for H.R. 5136 (the proposed NDAA for FY2011), as
quoted here.20
APPLICATION OF BERRY AMENDMENT TO TENTS AND RELATED ITEMS
The committee is aware that the Director, Defense Logistics Agency has chosen to
interpret the requirement to buy certain articles from domestic sources per subsection (b)
of section 2533a of title 10, United States Code, in such a manner that it applies expressly
to tents, tarpaulins, or covers, but not to the materials and components of tents, tarpaulins,
or covers. The committee is concerned that this narrow interpretation of the statute is
inconsistent with the law. Therefore, the committee directs the Director, Defense
Logistics Agency to review the interpretation of the current statute to ensure that it is
compliant with both the law and with congressional intent and submit a report to the
congressional defense committees not later than October 1, 2011, explaining how the
committees’ concerns were addressed.21



P.L. 111-383, the Ike Skelton National Defense Authorization Act for FY2011
(§847), provided 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 extended through May 16, 2011. The
final rule was published on August 19, 2011.22

GAO Reports on the Berry Amendment
A June 2011 GAO report examined the use of fire-resistant and fire-retardant materials in military
uniforms. Military uniforms are procured in accordance with the provisions of the Federal
Acquisition Regulation (FAR), DLA’s own internal regulations, the Berry Amendment, and the
Buy American Act (BAA).23 Legislative initiatives which may impact the procurement of military
uniforms were enacted in P.L. 111-383 (H.R. 6523), the Ike Skelton National Defense
Authorization Act for FY2011. Specifically, Section 821 of P.L. 111-383 required 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 fireretardant fibers and materials for the production of military uniforms. This legislation reflected
congressional concern that with the continued threat of improvised explosive device (IED)
attacks, all combat personnel were subject to the possibility of fire-related injuries. Thus vehicle
and aircraft fires remained a significant force protection and safety threat, whether they occurred
during ongoing combat operations or training for future deployment.
GAO was directed to provide an assessment of the following areas:

20

H.R. 5136 was introduced in the House on April 26, 2010, and referred to the Senate on June 28, 2010. A related bill,
H.R. 6523, was introduced in the House on December 15, 2010, passed the House on December 17, 2010, passed the
Senate on December 22, 2010, and signed by the President on January 7, 2011, as P.L. 111-383.
21
H.Rept. 111-491 for the National Defense Authorization Act for FY2011 (H.R. 5136).
22
Defense Federal Acquisition Regulation Supplement; Non-availability Exception for Procurement of Hand or
Measuring Tools. (DFARS Case 2011-D025), Federal Register, March 17, 2011 (Volume 76, Number 52).
23
The Buy American Act (41 U.S.C. 10a through 10d, as amended) is the principal domestic preference statute
governing most procurement by the federal government. It restricts foreign access to U.S. government procurement by
giving preference to domestically produced, manufactured, or home-grown products. For further discussion of the Buy
American Act, refer to CRS Report 97-765, The Buy American Act: Requiring Government Procurements to Come
from Domestic Sources, by (name redacted).

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(A) The current and anticipated sources of fire-resistant rayon fiber for the production of
military uniforms;
(B) The extent to which fire-resistant rayon fiber has unique properties that provide
advantages for the production of military uniforms;
(C) The extent to which the efficient procurement of fire-resistant rayon fiber for the
production of military uniforms is impeded by existing statutory or regulatory
requirements;
(D) The actions the Department of Defense has taken to identify alternatives to fireresistant rayon fiber for the production of military uniforms;
(E) The extent to which such alternatives provide an adequate substitute for fire-resistant
rayon fiber for the production of military uniforms;
(F) The impediments to the use of such alternatives, and the actions the Department has
taken to overcome such impediments;
(G) The extent to which uncertainty regarding the future availability of fire-resistant
rayon fiber results in instability or inefficiency for elements of the United States textile
industry that use fire-resistant rayon fiber, and the extent to which that instability or
inefficiency results in less efficient business practices, impedes investment and
innovation, and thereby results or may result in higher costs, delayed delivery, or a lower
quality of product delivered to the Government; and
(H) The extent to which any modifications to existing law or regulation may be necessary
to ensure the efficient acquisition of fire-resistant fiber or alternative fire-resistant
products for the production of military uniforms. 24

GAO found that an Austrian company was the sole source for fire-resistant rayon fiber for the
manufacture of fire-resistant uniforms for military personnel, that DOD had taken steps to
identify and test alternative fire-resistant, fabric blends to meet current demands, and that there
was debate over whether fire-resistant rayon’s flame resistant characteristics posed a superior
advantage over other alternatives. GAO did not provide a recommendation.25
GAO was also congressionally directed to assess whether the Berry Amendment was sufficient
protection for the defense industrial base and whether alternatives and solutions existed to keep
critical industries healthy and viable, in times of both war and peace. This 2003 report required
GAO to determine whether the Defense Logistics Agency (DLA) was properly implementing
applicable statutory and regulatory guidance for “best value” purchases and to solicit DLA views
on the domestic clothing and textile supplier base. GAO officials acknowledged that the Berry
Amendment was a positive factor in helping DOD to maintain a domestic supplier for some of
DOD’s unique military needs; however, officials pointed out that the overall domestic clothing
and textile industry was in decline due to declining employment and production levels, as well as
the implementation of various free trade agreements that may affect different levels of the
domestic supply chain.26
24

§821 of P.L. 111-383, the Ike Skelton National Defense Authorization Act for FY2011. The bill was signed into law
on January 7, 2011.
25
U.S. Government Accountability Office. Military Uniforms: Issues Related to the Supply of Flame Resistant Fibers
for the Production of Military uniforms. GAO-11-682R, June 2011. The report can be accessed online at
http://www.gao.gov/new.items/d11682r.pdf.
26
Contract Management: DLA Properly Implemented Best Value Contracting for Clothing and Textiles and Views the
Supplier Base as Uncertain. Report to the chairman and ranking Minority Member, Committee on Armed Services,
House of Representatives. U.S. General Accounting Office, GAO-03-440, February 2003. 18 p.

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The Berry Amendment and DHS
One legislative provision was enacted and three other provisions were proposed that would
impact the application of the Berry Amendment to DHS.

Legislation Enacted


P.L. 111-5, the American Reinvestment and Recovery Act of 2009 (H.R. 1),
contained a provision (§604) that was similar to the Berry Amendment. Section
604 affected all funds appropriated or otherwise made available to DHS. These
restrictions prohibited DHS from the purchase of certain textiles unless the items
are grown, reprocessed, reused, or produced in the United States. Section 604 is
also referred to as the “Kissell Amendment.”27

Legislation Proposed








S. 2114 (112th Congress), the Berry Amendment Extension Act, was introduced
on February 15, 2012, and referred to the Senate Homeland Security Committee
and Governmental Affairs. The proposed measure would prohibit the Department
of Homeland Security from procuring certain items directly related to national
security unless the items are grown, reprocessed, reused, or produced in the
United States.
H.R. 679 (112th Congress), the Berry Amendment Extension Act, was introduced
on February 11, 2011, and on February 17, 2011, was 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 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.
H.R. 3116 (111th Congress), the Berry Amendment Extension Act, was
introduced on July 7, 2009, by Representative Larry Kissell. The proposed
measure would have prohibited the purchase of clothing, tents, tarpaulins, and
certain other textiles unless the items are grown, reprocessed, reused, or produced
in the United States. The bill was referred to the Senate Homeland Security and
Governmental Affairs Committee. No further action was taken.
H.R. 917 (110th Congress), the Berry Amendment Extension Act, was introduced
on February 8, 2007, by Representative Robin Hayes. The proposed measure
would have prohibited 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. The bill was referred to the House Homeland Security

27

This bill contains restrictions on the Department of Homeland Security’s (DHS) acquisition of certain foreign textile
products. Specifically, §604 of the American Reinvestment and Recovery Act, codified as 6 U.S.C. 453b, limits DHS
acquisition of foreign textile products under DHS contract actions entered into on or after August 16, 2009, using funds
appropriated or otherwise made available to DHS on or before February 17, 2009, the date of the act. DHS may not use
those funds for the procurement of certain clothing and other textile items directly related to the national security
interests of the United States if such items are not domestically grown, reprocessed, reused, or produced in the United
States. See Revision of Department of Homeland Security Acquisition Regulation: Restrictions on Foreign Acquisition
(HSAR Case 2009-004). http://www.federalregister.gov/articles/2010/06/09/2010-13804/revision-of-department-ofhomeland-security-acquisition-regulation-restrictions-on-foreign#p-12.

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Subcommittee on Managements, Investigations, and Oversight. No further action
was taken.
In 2008 there were first media reports that the Under Secretary of Defense for Acquisition,
Technology, and Logistics had considered several legislative proposals to broaden the exceptions
provided under the Berry Amendment. Inside the Pentagon reported that John Young, then
DOD’s senior acquisition executive, had formally submitted proposals to be considered as part of
DOD’s submission for the FY2009 National Defense Authorization bill. One such proposal would
have granted DOD authority to waive the requirements of the Berry Amendment during so-called
emergency operations. Such emergency operations might include military action taken against
U.S. adversaries, military action in response to an attack with weapons of mass destruction, or
military action resulting from national emergencies declared by the President. Another proposal
would have authorized military procurement officials to give contracting preference to indigenous
groups for the purpose of expanding economic development in a contingency operation.28 DOD
had also submitted a legislative proposal that would have amended the Berry Amendment to
permit the purchase of fresh fruits and vegetables from all sources.29

Berry Amendment Resources
Two public resources provide answers to many of the most often-asked questions on the Berry
Amendment. DOD’s Office of Defense Procurement and Acquisition Policy (DPAP) has prepared
a “Frequently Asked Questions” compendium of general information on the Berry Amendment.
The questions and answers ranged from origin and history, authority, policy, and exceptions;
comparisons with other domestic source restrictions like the Buy American Act; the policy
governing determinations of non-availability (DNAD); and many questions often raised by
suppliers and other industry personnel.30
Also, the U.S. Department of Commerce has launched a website to provide textile and other
manufacturers a resource for the latest information on the Berry Amendment. According to the
website, this resource was compiled with the support of the Commerce’s International Trade
Administration’s Office of Textiles and Apparel, DOD, Office of the Under Secretary of Defense
for Acquisition, Technology, and Logistics, and DPAP; Army, Air Force, and Navy acquisition
offices.31

Background
The Berry Amendment contains a number of domestic source restrictions that prohibit DOD from
acquiring food, clothing, fabrics (including ballistic fibers), specialty metals, stainless steel, and
hand or measuring tools that are not grown or produced in the United States.32
28

Young Seeks Legislative Changes to Streamline Contingency Buying. Inside the Pentagon, February 28, 2008, Vol.
24, No. 9.
29
U.S. Department of Defense. Seventh Package of Legislative Proposals Sent to Congress for Inclusion in the
National Defense Authorization Act for FY2009, sent to Congress on May 28, 2008. See http://www.dod.mil/dodgc/
olc/legispro.html.
30
The Defense Contract Management Agency has provided a list of items for which waivers have been issued due to
lack of a domestic supplier, as well as the corrective action plans submitted by suppliers to meet compliance with the
Berry Amendment. For further information, see http://www.acq.osd.mil/dpap/cpic/ic/berry_amendment_faq.html.
31
http://web.ita.doc.gov/tacgi/eamain.nsf/BerryAmendment/Berry%20Amendment?Opendocument.
32
10 U.S.C. §2533a, Requirement to Buy Certain Articles from American Sources; Exceptions.

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Congress and DOD have long debated the need to protect the U.S. defense industrial base by
restricting certain federal procurement to U.S. markets through legislation known as “domestic
source restrictions.”33 Many defense appropriations bills passed since 1942 have included some
mention of a preference for U.S. articles, supplies, and materials. One particular group of
domestic source restrictions was first enacted into law on April 5, 1941, as part of the FY1941
Fifth Supplemental National Defense Appropriations Act, P.L. 77-29. During the second session
of the 82nd Congress, Elias Y. Berry, Representative from South Dakota, introduced two bills to
amend the Buy America Act to include wool as a product or material, produced or manufactured
in the United States.34 Reportedly, this amendment would come to be known as the Berry
Amendment.
On December 13, 2001, the passage of the FY2002 National Defense Authorization Act codified
and modified the Berry Amendment,35 making it a permanent part of the United States Code.
Under the Berry Amendment, the Secretary of Defense has the authority to waive the requirement
to buy domestically, under certain conditions.36
The 2001 controversy over the procurement of black berets and the waiver authority of the
Secretary of Defense, as well as the presence of other domestic source provisions, have created
considerable interest in the Berry Amendment. Some policy makers believe that the Berry
Amendment’s restrictions (like the specialty metal clause) contradict free trade policies, and that
the presence and degree of such competition is the most effective tool for promoting efficiencies
and improving quality. Others believe that U.S.-based companies need the protections afforded by
the Berry Amendment. These two views have been the subject of ongoing debate in Congress.

Controversy over the Berry Amendment
On October 17, 2000, the Army Chief of Staff, General Eric Shinseki, announced that the black
beret would become the standard headgear for the U.S. Army. The Army planned to issue a onepiece beret to each of the 1.3 million active duty and reserve soldiers during the spring of 2001,
while a second beret would be issued to each soldier in the fall of 2001. The Army was to pay
approximately $23.8 million for about 4.7 million berets. DOD awarded the first contract to
Bancroft, an Arkansas-based company that had manufactured military headgear since World War
I. Other contracts were awarded to several foreign manufacturing firms; five of the foreign firms
had production facilities in the People’s Republic of China, Romania, Sri Lanka, and other lowwage countries.
33

For a discussion of domestic source restrictions, see “Defense Acquisition: Rationale for Imposing Domestic Source
Restrictions.” GAO/NSIAD-98-191, July 17, 1998, 20 pages.
34
Congressional Record. Proceedings and Debates of the 82nd Congress, Second Session. Volume 98-Part 3. March 25,
1952 - April 22, 1952 (pages 3859-3861).
35
Within DOD regulations, the Berry Amendment can be found in the Defense Federal Acquisition Regulation
Supplement (DFARS), Restrictions on Food, Clothing, Fabrics, Specialty Metals, and Hand or Measuring Tools. See
DFARS, Part 225.7002.
36
10 U.S.C. §2533(c)(d)(e)(f)(g)(h) Exceptions to the Berry Amendment are: when the Secretary of Defense or the
Secretary of the military department determine that satisfactory quality and sufficient quantity of any such article or
item or specialty metal cannot be procured as and when needed at United States market prices; procurement outside the
United States in support of combat operations; procurement by vessels in foreign waters; emergency procurement of
perishable foods by an establishment located outside the United States, for the personnel attached to such an
establishment; procurement of specialty metals or chemical warfare protective clothing produced outside the United
States, under certain circumstances; procurement which complies with reciprocal agreements with foreign
governments; procurement of certain foods; procurement for resale at commissaries, exchanges, and other nonappropriated fund instrumentalities; procurement values that are under the simplified acquisition threshold.

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To purchase the black berets, the Defense Logistics Agency (DLA)37 granted two waivers of
specific restrictions in the Berry Amendment. The first waiver was granted to DOD so that the
department could purchase military uniforms from foreign sources. DLA granted this waiver
when it determined that no U.S. firm could produce a sufficient quantity of one-piece, black
berets by the Army’s deadline. As a result, there were protests from some segments of domestic
manufacturing, military and veterans groups, Members of Congress, and the public. The House
Small Business Committee held a hearing on May 2, 2001, to discuss the statutory authority to
waive Berry Amendment restrictions, as well as the concerns of the small business community
regarding the contract award process.
DLA granted the second waiver to allow Bancroft to retain its contract and continue to produce
the black berets for the Army, even though Bancroft used materials from foreign sources.
Bancroft, the sole U.S. manufacturer of the one-piece beret, had procured materials from two
overseas suppliers, who, in turn, had procured material from other foreign sources. Bancroft’s
president reported that, as early as 1976, DOD had been notified that some beret materials were
procured from foreign sources.
On October 4, 2002, DOD announced that the Bancroft Cap Company of Cabot, AR, was
awarded a $14.8 million dollar firm-fixed-price contract to manufacture up to 3.6 million black,
wool berets for the United States Army and the United States Air Force. The contract was a twoyear contract with three one-year options. There were 154 proposals solicited, and 13 vendors
responded. The contract was administered through the Defense Supply Center, Philadelphia, PA.38
By some, where DOD purchases its berets is viewed as a relatively minor matter, when compared
to where it purchases its electronics; specialty metals; and other hardware used for logistics
support, communications, and weapons modernization. However, to others small businesses’ loss
of such a contract to foreign sources can be seen as unacceptable.

History of the Berry Amendment
When Was It Enacted and Why?
The Berry Amendment, which dates from the eve of World War II, was established for a narrowly
defined purpose: to ensure that U.S. troops wore military uniforms wholly produced within the
United States and to ensure that U.S. troops were fed with food products solely produced in the
United States.39 Other industries, such as tools and specialty metals, were added later. Originally
enacted on the eve of World War II, it overrode exceptions added to the Buy American Act of
193340 for products procured by the Department of Defense.

37

The Defense Logistics Agency is a logistics combat support agency whose primary role is to provide supplies and
services to American military forces worldwide. See http://www.dla.mil.
38
Defense Link. U.S. Department of Defense. Contracts for October 4, 2002.
39
On April 5, 1941, the Berry Amendment was first enacted as part of the FY1941 Fifth Supplemental National
Defense Appropriations Act, P.L. 77-29, 10 U.S.C. §2241 note. The Berry Amendment was made permanent when P.L.
102-396, §9005, was amended by P.L. 103-139, §8005. Since then, Congress has regularly added or subtracted Berry
Amendment provisions. On December 13, 2001, the FY2002 National Defense Authorization Act codified and
modified the Berry Amendment, repealing Sections 9005 and 8109 of the above-mentioned bills. The Berry
Amendment is now codified at 10 U.S.C. 2533a.
40
See discussion on the Buy American Act, in this report.

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In 1941, House and Senate Members held spirited discussions41 over the passage of what has
come to be known as the Berry Amendment, although the precise identity of the author of the
amendment remains unknown.42 Several issues were raised during the debate. Even though the
United States was not at war, Congress was concerned that the nation be prepared for adversity
and thus provided the impetus for such legislation. Some policy makers were also concerned that
despite the enactment of the Buy American Act in 1933, one department of the federal
government had reportedly purchased meat from Argentina. Likewise, another department had
reportedly contracted to purchase a large quantity of wool, about 50% of which came from
foreign sources. Questions were raised over the disposal of some 500 million bushels of surplus
wheat, with one policy maker noting that “wheat products and wheat should be purchased from
the production here in the United States when we have such a surplus on hand and that our own
farmers should be given preference.”43 In an expression of that concern, the original version of
the House bill added a provision which required the purchase of American agricultural products
in fulfilling national defense needs. (The Senate version initially deleted the provision, but later
reinstated it, broadening the bill to include all agriculture.) The bill was enacted into law on April
5, 1941.
Largely as a result of the controversy surrounding the procurement of the black berets,
Representative Walter B. Jones introduced a bill to amend Title 10 of the United States Code, thus
making the Berry Amendment a permanent provision of law. On April 3, 2001, Representative
Jones introduced H.R. 1352 (107th Congress), the purpose of which was to codify and modify the
provisions of the Berry Amendment. At the introduction of the bill, Representative Jones stated
that the black beret controversy and the decision of the Defense Logistics Agency to waive the
Berry Amendment provisions and allow the procurement of berets from foreign sources
highlighted the need to review the current law and look for ways to improve the effectiveness of
the law. H.R. 1352 would also add a requirement that the Secretary of Defense notify the House
and Senate committees on Appropriations, Armed Services, and Small Business before a waiver
is made. The provisions of H.R. 1352 were enacted into law as part of the FY2002 National
Defense Authorization Act, P.L. 107-107.

How Does the Buy American Act Differ from the
Berry Amendment?
The Buy American Act (BAA) and the Berry Amendment are often confused, and the terms are
sometimes used interchangeably. The BAA, enacted in 1933, is the principal domestic preference
statute governing most procurement by the federal government, while the Berry Amendment,
enacted on the eve of World War II, governs DOD procurement only.44 The BAA seeks to protect
41

An example of a discussion of the issues surrounding the passage of the Berry Amendment can be found in the
Congressional Record, vol. 87, part 15. 77th Congress, 1st Session, pp. 2460-2984 and pp. 2711-2720.
42
Legislative reference specialists suggest (but are not certain) that the amendment may have been named after George
Leonard Berry (D-TN), who was appointed to serve the remainder of an unexpired U.S. Senate term (1937-38) due to
the death of Nathan Buchman, and was defeated for election in the Democratic presidential primary of 1938. At age 24,
Senator Berry had been elected president of the International Printing Pressmen and Assistants’ Union in 1907, a
position he held until his death in 1948.
43
Statement of James Francis O’Connor, Representative from Montana, March 21, 1941, during congressional debate
over the 1941 Fifth Supplemental National Defense Act (see Congressional Record, vol. 87, part 15. 77th Congress, 1st
Session, p. 2564.)
44
The Buy American Act (41 U.S.C. §§10a through 10d, as amended), enacted in 1933, is the major domestic source
restriction governing procurement by all of the federal government. It restricts U.S. government procurement by giving
preference to domestically produced, manufactured, or home-grown products. For further discussion of the Buy
(continued...)

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domestic labor by giving preference to domestically produced, manufactured, or home-grown
products in government purchases, with certain exceptions. The Berry Amendment overrides
many of these exceptions, primarily for food, clothing, and specialty metals.
The two major differences between the BAA and the Berry Amendment are that (1) the BAA
applies only to federal government contracts to be carried out within the United States, while the
Berry Amendment, which is for defense contracts only, is not limited to contracts within the
United States; and (2) the BAA requires that “substantially all” of the costs of foreign
components not exceed 50% of the cost of all components (thus, an item can be of 51% domestic
content and still be in compliance with the BAA) while the Berry Amendment requires that items
be 100% domestic in origin.
It should be noted that there are a number of other domestic source provisions which generally
govern specific types of procurement; these provisions are not covered by the BAA or the Berry
Amendment. These provisions will not be covered in this report but must be considered when
determining whether or not a specific domestic source provision affects a particular type of
procurement.45

What Is the Relevance of the Berry Amendment Today?
Some observers argue that the Berry Amendment restrictions may not always represent the best
value to DOD or the federal government, nor is there always a justifiable national security interest
to preserve certain items currently under the Berry Amendment. Nevertheless, others have
asserted that U.S. workers and businesses have an expectation that Congress will consider their
interests in determining procurement policies.
A number of Berry Amendment-restricted items may be in line with the original purpose and
intent, based on the end use products that are produced. For example, certain items like chemical
warfare protective clothing (composed of ballistic fibers, made from textiles) may warrant further
study. Specialty metals may be critical and vital to the war-fighting effort if they are used for
“high-tech” electronics and communications. Food restrictions, on the other hand, are not critical
and may make it more difficult for DOD to take advantage of commercial business practices. In
an increasingly globalized economy, many food suppliers find it difficult to adhere to this
restriction as it deviates from standard commercial business practices, so some may decline to sell
to DOD. Many food suppliers who sell to DOD claim they are often forced to adopt unique,
costly, and inefficient business practices to do business with the defense sector.46

(...continued)
American Act, refer to CRS Report 97-765, The Buy American Act: Requiring Government Procurements to Come
from Domestic Sources, by (name redacted).
45
See 41 U.S.C. §10a through 10d, and 10 U.S.C. §2533, Determinations of Public Interest under the Buy American
Act. For further discussion of the Buy American Act, see CRS Report 97-765, The Buy American Act: Requiring
Government Procurements to Come from Domestic Sources, by (name redacted). For further discussion of defense
domestic source provisions not covered by the Buy American Act or the Berry Amendment, refer to Title 10 of the
United States Code.
46
According to Leslie G. Sarasin of the American Frozen Food Institute (AFFI), “The Berry Amendment required
DOD to procure foods, entirely of U.S. origin ingredients. Often, DOD was forced to reject multi-ingredient,
commercially available food items processed in the United States because the domestic origin of all ingredients and
components of the product could not be demonstrated. This policy put DOD at odds with common commercial practice
in the food industry, which typically follows U.S. tariff law in determining questions of foreign origin, and limited its
access to the widest possible selection of products.” Memorandum to the Defense Acquisition Regulations Council on
AFFI comments on DOD’s proposed interim rule regarding modification of the Berry Amendment, June 21, 2002. See
(continued...)

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Economic, social, and political factors come into play when examining the purpose and intent of
the Berry Amendment. If the United States becomes dependent on purchasing equipment and
supplies from foreign sources, what prevents an adversary from cutting off U.S. access to such
items or refusing to build militarily critical items in times of crisis or conflict? Another argument
for maintaining the Berry Amendment restrictions is that they often benefit small, minorityowned, and disadvantaged businesses, which may depend on DOD for their viability. According
to congressional testimony, U.S. textile and apparel industries combined lost approximately
540,000 jobs during the 1990s.47
Some would argue that the Berry Amendment is still relevant today because of the tragic events
of September 11, 2001. There are also concerns over the possibility of future acts of terrorism and
the safety and security of the nation’s food supply. Some specialty metals and steel products,
items covered under the Berry Amendment, are produced by distressed U.S. industries. One such
company, Bethlehem Steel, one of the largest U.S. steel manufacturers, filed for Chapter 11
bankruptcy protection, in part because of the competition from cheaper, foreign-made, and
possibly subsidized steel.48 Additionally, the procurement of certain items like ballistic fibers
(found in body armor, which is critical to the protection of U.S. military troops) is restricted to
domestic producers under the Berry Amendment. Generally, proponents of the Berry Amendment
have argued that these types of restrictions are necessary to maintain a viable industrial base, and
that the Berry Amendment serves as some protection for critical industries by keeping them
healthy and viable in times of peace and war. For these reasons, some believe that this is not the
time to change the provisions of the Berry Amendment, arguing that the United States should
maintain its current capacity, at a minimum, to feed and clothe its military forces.
However, critics argue that the Berry Amendment can undercut free market competition and may
produce other negative effects, such as reducing business incentives to modernize, causing
inefficiency in some industries due to a lack of competition, and causing higher costs to DOD
(because the military services may pay more for “protected” products than the market requires).
Critics also contend that the Berry Amendment promotes U.S. trade policies that might
undermine international trade agreements. For example, the delays associated with the
procurement of body armor for U.S. troops in Iraq were a source of congressional criticism
including during the 108th Congress.49
(...continued)
DFARS Case 2002-D002, at http://www.affi.com/policy.asp.
47
Statement of Evan Joffe, Marketing Manager of Springfield, LLC, before the House Committee on Small Business,
May 22, 2001.
48
Behr, Peter. Bethlehem Steel Files for Bankruptcy; Struggles with Competition from Imports, Labor Costs
Exacerbated by Aftermath of Attacks. Washington Post, October 16, 2001, p. E01. Bethlehem Steel, a 97-year-old
company based in Bethlehem, PA, was the 25th steel company to file for bankruptcy protection since 1998. The
company listed $4.3 billion in assets, $6.75 billion in liabilities, including an unfunded health care obligation of
$1.85 billion.
49
According to Vice Admiral Keith W. Lippert, United States Navy, who is the Director of the Defense Logistics
Agency, the Army has adequately equipped all of the U.S. troops with the Interceptor Body Armor. In his testimony on
March 30, 2004, before the House Armed Services Subcommittee on Readiness, he reported that “As we prepared (for
Operation Iraqi Freedom), we built on lessons learned from previous conflicts. Our preparations were good in some
areas, but needed to improve in others. I’ve discussed our joint planning with the Services in advance of the operation.
In some cases, actual demand for items exceeded projections. For example, the Small Arms Protective Inserts—the
SAPI plates you’ve all heard about—the estimated FY2003 requirements were seventeen million dollars. For a very
good reason, the protection of our American war fighter—The Army increased their requirement for Interceptor Body
Armor. Today all troops in Iraq are equipped with Interceptor Body Armor. To meet the increased requirement, funded
requisitions began coming to us in January 2003. By November 2003, we actually bought three hundred seventy
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Application of the Berry Amendment
Department of Defense Views of the Berry Amendment
DOD officials have expressed contrasting views about the necessity for the Berry Amendment.
Then Secretary of Defense Richard Cheney50 issued a 1989 report to Congress called The Impact
of Buy American Restrictions Affecting Defense Procurement. The report suggested that an
alternative to the Berry Amendment would be a specifically targeted approach to provide DOD
with the ability to establish assured sources of supply for mobilization purposes through existing
mobilization base planning under the Defense Production Act.51 The report concluded that
“statutory and regulatory policies and other federal and DOD acquisition regulations like the
Berry Amendment, which prohibit or impede foreign-source participation in U.S. defense
contracting, constitute a considerable departure from the concept of full and open competition.”
In 1997, the DOD Acquisition Reform Executive Focus Group’s final report called for the
elimination of some Berry Amendment restrictions on food, clothing, and textiles, while retaining
restrictions on specialty metals and measuring tools.
A former DLA Deputy Director, Major General (Ret.) Charles R. Henry, testified that the Berry
Amendment was critical to the maintenance of a “warm” U.S. industrial base during periods of
adversity and war. He summed up his opinion, as follows:
The point here is that, through the Berry Amendment, our defense procurement
establishment is able to maintain a stable of independent, competing producers who
understand the mil-specs of different items and who have the commitment to service the
U.S. military. They are there for our military when there is a surge in requirements—as
there was with Desert Storm—and they must be there during peacetime. 52

Other Views
Some proponents of the Berry Amendment believe that the U.S. military should not be dependent
on foreign sources for critical textile products and that dependency on foreign sources for military
items could lead to problems with supply, demand, delays, and a potentially adversarial
relationship with suppliers during times of war or military mobilization. Furthermore, some
believe that the Berry Amendment should be expanded to include other important industries and
those new federal agencies like the Department of Homeland Security should be covered by the
provisions of the Berry Amendment.53 However, some representatives of domestic and foreign
(...continued)
million dollars of the SAPI plates - using exigency contracts, awarded within thirty days, with an average delivery
beginning within eighty-three days. The Army Audit Agency conducted a special inspection of body armor and found
that we were timely in making awards and that quality products were delivered on time. However, SAPI production
right now is constrained by the availability of raw materials, mainly the ceramic tiles contained in the plates. At
present, known worldwide production of qualified ballistic packages is limited to twenty-five thousand SAPI sets (or
fifty thousand plates) per month.”
50
Secretary of Defense, March 1989 - January 1993.
51
For further discussion on the Defense Production Act, see nondistributable CRS Report RS20587, Defense
Production Act: Purpose and Scope, by (name redacted)
, available from author.
52
Testimony before the Oversight and Investigations Subcommittee, House Committee on Education and the
Workforce. Hearing on Federal Prison Industries’ Proposed Military Clothing Production Expansion - Assessing
Existing Protections for Workers, Business, and FPI’s Federal Agency Customers. October 5, 2000.
53
It should be noted that H.R. 1 (111th Congress), the American Recovery and Reinvestment Act of 2009 (P.L. 111-5)
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companies have criticized the Berry Amendment, stating that it undercuts free market
competition, may promote discriminatory practices, robs businesses of incentives to modernize,
causes inefficiency in some industries due to a lack of competition, and results in higher costs to
DOD, because the military services pay more for “protected” products than the market requires.
Some critics of the Berry Amendment also argue that the United States will lose its technological
edge in the absence of competition and alienate foreign trading partners, thereby provoking
retaliations and loss of foreign sales. They assert that the Berry Amendment will ultimately
reduce the ability of the United States to negotiate and persuade its allies to sell or not sell to
developing countries. They contend that the Berry Amendment promotes U.S. trade policies that
undermine the international trade agreements. Furthermore, restrictions on food mean that in most
cases it is illegal for DOD to purchase an item or food if it is a foreign item or if it has any foreign
ingredient or processing. On the other hand, critics have also expressed concern over the
increased levels of imported, ready to wear goods, and the prevalent “sweat shop conditions” of
foreign markets.
In 2006, the Berry Amendment Reform Coalition (a group of associations and member companies
that support legislative reforms to the Berry Amendment) proposed legislative reforms that
advocated for exceptions to the Berry Amendment for domestic specialty metals.54 The passage of
the John Warner National Defense Authorization Act for FY2007 (P.L. 109-364, Sections 842 and
843) effectively moved the specialty metal provision out of the Berry Amendment and into a
separate section of Title 10. The specialty metals clause provides protection for strategic materials
critical to national security.

Options for Congress
The Army’s black beret controversy, which revealed that the berets are not 100% domestic in
origin, and the resulting waiver of Berry Amendment restrictions to allow DLA to procure the
berets from foreign sources raised questions which have not been settled, as to the original
purpose, intent, and value of the Berry Amendment. Congress may choose to examine the
domestic source restrictions under the Berry Amendment and other procurement provisions and to
determine whether they help or hurt the defense industrial base, including relationships with
foreign trading partners.

Option 1: Take No Action, Retain the Berry Amendment as Enacted
Congress may choose to take no action, to retain the current provisions of the Berry Amendment
as enacted in law.

(...continued)
contained a provision (§604) which affected all funds appropriated or otherwise made available to DHS. These
restrictions prohibited DHS from the purchase of certain textiles unless the items were grown, reprocessed, reused, or
produced in the United States. §604 are sometimes referred to as the Kissell Amendment. Also, the Berry Amendment
Extension Act was reintroduced by Representative Kissell on February 11, 2011, and referred to the House Homeland
Security Subcommittee on Oversight, Investigations, and Management. The bill seeks to extend the provisions of the
Berry Amendment to DHS.
54
Berry Amendment Reform Coalition, https://oasis.northgrum.com/general/docs/
BerryAmendmentReformCoalition.pdf.

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Option 2: Eliminate Some Selected Restrictions
Congress might eliminate some selected restrictions, such as the restrictions on food. Eliminating
the restrictions on purchasing food items (with less than 100% domestic content) would allow
U.S. food suppliers to use more commercial business practices that are more cost effective. This
move would arguably promote more competition and interest in selling food to DOD. For
example, some in DOD believe that elimination of the food restriction would allow food suppliers
greater and more practical latitude to use foreign ingredients and processing, in line with current
commercial practice. Many food suppliers find this restriction to be the least practical and even
trade associations of food suppliers have stated that this restriction makes it more difficult to do
business with DOD. The Pentagon believes that the food provisions of the Buy American Act
would continue to provide U.S. food suppliers a significant advantage over foreign suppliers.
Likewise, Congress could eliminate or modify the clothing restriction, allowing DOD to find the
best item for the most competitive price.55 DOD has reportedly known for 25 years that it does
not produce a solely domestic beret.56 One alternative would be for restricted items to be
classified according to a prioritized system, with “high-tech” and “low-tech” classifications,
which each could have different waiver requirements. Some military uniform components, such
as the beret, could be classified as “low-tech,” and therefore could be procured without a waiver.
This option would most likely be opposed by groups such as the American Manufacturing Trade
Action Coalition and the National Council of Textile Organizations.

Option 3: Adopt a “Componency Standard”
Congress might revise the Berry Amendment and amend the provisions to say that manufactured
articles are considered domestic if “substantially all” of their components have been mined,
produced, or manufactured domestically. This is similar to the requirements of the Buy American
Act and could eliminate future procurement issues like those encountered in the Army black beret
procurement.
Such a provision was proposed in the House-passed version of H.R. 1588, the FY2004 National
Defense Authorization Act. Section 829, titled “Requirement Relating to Purchases by
Department of Defense Subject to Buy American Act,” would have broadened the definition of
what makes an item “domestic” in origin. In Section 829, an item was defined as domestic and
covered under the Buy American Act if it was at least 65% domestic in origin. Adoption of this
provision would have provided DOD the authority to procure items that may be a combination of
both domestic and foreign in origin. This provision alone would represent a significant departure
from the 100% domestic requirement of the Berry Amendment, and more closely parallel the
provisions of the BAA.57 However, this provision was dropped in the final version of the bill.58
55

However, the American Manufacturing Trade Action Coalition http://www.amtacdc.org advocates for the
preservation of the Berry Amendment and the Buy American Act, so that the U.S. military does not become dependent
on foreign sources for critical textile products.
56
At the May 2, 2001, hearing before the House Committee on Small Business, Ms. Michele Goodman from Atlas
Headwear, Inc. (a small business supplier based in Phoenix, Arizona) testified that American companies could have
fulfilled the Army’s black beret requirement had DLA’s Defense Supply Center of Philadelphia been given enough
time to proceed properly, and had the U.S. Army been more open minded about the type of beret it wanted. Her
company attempted to bid for the beret contract, without success. See the prepared statement of Michele Goodman,
“Black Beret Procurement: Business as Usual at the Pentagon?” House Committee on Small Business, May 2, 2001.
57
The Buy American Act requires the federal government to procure items that are “substantially” composed of
domestic materials, while the Berry Amendment requires that the Department of Defense procure items that are wholly
(continued...)

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Option 4: Study the Lessening or Elimination of Provisions
Congress could solicit the opinions of trade associations, labor organizations, and industry experts
on the selected use of Berry Amendment restrictions and use of the waiver requirement. Many
industry experts say that this approach is preferable to an “all or nothing” stance taken by some
interest groups.
The American Apparel and Footwear Association (AAFA) supports the preservation of the Berry
Amendment. AAFA believes that the controversy surrounding the procurement of the berets has
helped shore up support for such a change in the law. The association has suggested that Congress
might want to consider whether one particular restriction adversely impacts a U.S. company or its
workers that might have become dependent upon the provisions of the Berry Amendment for their
economic well-being.59

Option 5: Study What Percentage of Domestic Clothing, Textiles,
Food, and Specialty Metals Is Sold to the Military
Congress might determine whether these markets are wholly dependent on the military or
whether they represent a statistically significant portion of the total market. For example, during
Desert Storm the apparel and textile industry proved that its surge capacity could rapidly respond
to a major contingency and a sudden call-up for servicemen and women. The industry started
with nine manufacturers producing 2 million camouflage fatigues in 1988; by 1991, the number
of manufacturers increased to 16, producing some 5 million camouflage fatigues. Congress may
also want to explore the impact of Berry Amendment restrictions on U.S. relationships with
foreign trading partners.

Option 6: Appoint a “Berry Amendment Commission”
Congress might appoint a commission to study the effects of the Berry Amendment restrictions
on the U.S. industrial base, national security, and the military’s war-fighting capability. The
commission could assess the economic, social, and political impact of current restrictions and
make recommendations to the Congress. The commission could determine whether current
coverage of the Berry Amendment is appropriate or whether it should be expanded or contracted.

Option 7: Audit and Investigate Berry Amendment Contracts
Congress could investigate all military procurement contracts for compliance with the Berry
Amendment. Noting that congressional testimony suggested that DLA had known that the
Bancroft Cap Company has used foreign suppliers for the past 25 years implies that there may be
other similar instances that have been overlooked or underreported. Congress could direct the
Government Accountability Office60 or the DOD Inspector General to conduct an audit of a
representative sample of contracts awarded for each restricted item under the Berry Amendment,
including whether end products incorporated materials from foreign sources.
(...continued)
(100%) domestic.
58
H.R. 1588, the National Defense Authorization Act for 2004, was enacted as P.L. 108-136 on November 24, 2003.
59
AAFA Legislative Update, March/April/May 2001.
60
Effective July 7, 2004, the General Accounting Office’s legal name is the Government Accountability Office.

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Legislative Activity
Several domestic source provisions concerning the Berry Amendment were introduced during the
110th-113th Congresses. Some were proposed, others enacted into law. One common theme was
the broadening of the Secretary of Defense’s waiver authority (authority to waive the Berry
Amendment) when the Secretary believed that there was an unusual and compelling reason to
procure items from foreign sources. Other provisions sought to broaden the provisions of the
Berry Amendment to cover new items not currently covered (like athletic footwear) or additional
agencies (like the Department of Homeland Security).

113th Congress
Legislation Proposed








On September 30, 2013, DOD issued an interim rule which would amend the
Defense Federal Acquisition Regulation Supplement (DFARS) to implement
provisions of H.R. 4310 (P.L. 112-239), the National Defense Authorization Act
of 2013, that require compliance with the Berry Amendment. Section 826 of H.R.
4310 requires that textiles procured by DOD for the production of military
uniforms for the Afghan National Army or the Afghan National Police must be in
compliance with the Berry Amendment. Related to Section 826, Section 842
amends Section 886 of H.R. 4986 (P.L. 110-181) to reflect the authority to
acquire products and services from Iraq and Afghanistan.61
On May 23, 2013, two bills were introduced with similar purposes. S. 1051 was
introduced in the Senate while H.R. 2188 was introduced in the House. Both bills
would amend Title 37, U.S.C. to ensure that footwear furnished or obtained by
allowance for enlisted members of the Armed Forces upon their initial entry
would meet the requirements of the Berry Amendment. The two bills would
require DOD to comply with the Berry Amendment by purchasing athletic
footwear in the same way as other military uniform purchases. Currently, enlisted
members receive a stipend through vouchers to buy athletic footwear, and there is
no requirement that the footwear be domestic in origin.
S. 2114, the Berry Amendment Extension Act, was introduced on February 15,
2011, and referred to the Senate Committee on Homeland Security and
Government Affairs. H.R. 679, a similar bill, was introduced on February 11,
2011, and was referred to the House Homeland Security Subcommittee on
Oversight, Investigations, and Management. Similar bills have been introduced in
previous Congresses.
H.R. 2955, the “American Shoes for American Service Members Act,” was
introduced on September 15, 2011, 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.

61

Defense Federal Acquisition Regulation Supplement: Acquisitions in Support of Operations in Afghanistan (DFARS
Case 2013-D009). Interim rule, September 30, 2013. Comments on the interim rule will be accepted through November
29, 2013. Accessed online at https://www.federalregister.gov/articles/2013/09/30/2013-23743/defense-federalacquisition-regulation-supplement-acquisitions-in-support-of-operations-in#h-9.

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112th Congress
Legislation Enacted
P.L. 112-81, the National Defense Authorization Act for FY2012 (H.R. 1540) contained a
provision (§821) which clarified the intent of the Berry Amendment when applied to the purchase
of tents, tarpaulins, or covers from domestic sources.62
P.L. 112-81 also contained a provision (§822) which repealed the sunset of the authority to
procure fire resistant rayon fiber, from foreign sources, used for the production of uniforms.

Legislation Proposed
S. 2114, the Berry Amendment Extension Act, was introduced on February 15, 2012, by Senator
John D. Rockefeller and referred to the Senate Committee on Homeland Security and
Government Affairs. H.R. 679, a similar bill, was introduced by Representative Larry Kissell on
February 11, 2011, and referred to the House Homeland Security Subcommittee on Oversight,
Investigations, and Management. Both bills seek to extend the provisions of the Berry
Amendment to the Department of Homeland Security. Similar bills have been introduced in
previous Congresses.
H.R. 2955, the “American Shoes for American Servicemembers Act,” was introduced on
September 15, 2011, by Representative Mike Michaud. 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. The bill was referred to the
House Armed Services Committee.

111th Congress
Legislation Proposed
H.R. 6262, the Jobs through Procurement Act, was introduced on September 29, 2010, by
then-Representative Phil Hare. The proposed bill sought to strengthen the domestic sourcing
requirements of the Berry Amendment and the Buy American Act. The bill was referred to the
Committees for House Oversight and Government Reform and the House Armed Services
Committee.
H.R. 5013, the Implementing Management for Performance and Related Reforms to Obtain Value
in Every Acquisition Act of 2010, was introduced on April 14, 2010, by Representative Robert
Andrews and referred to the Senate Armed Services Committee. The proposed measure would
have contained a provision (§409) that expressed a “sense of Congress” that
in order to create jobs, level the playing field for domestic manufacturers, and strengthen
economic recovery, it is the sense of Congress that the Department of Defense should—
(1) Ensure full contractor and subcontractor compliance with the Berry Amendment (10
U.S.C. 2533a) and the Buy American Act (41 U.S.C. 10a et seq.); and
(2) Not procure products made by manufacturers in the United States that violate labor
standards as defined under the laws of the United States. 63
62

§2533a (b) (1) (C) of Title 10, U.S.C., is amended by inserting “and the structural components thereof” after the
word “tents.”

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H.R. 5013 also included two amendments (H.Amdt. 615 and H.Amdt. 617) that propose to
strengthen the application of the Berry Amendment to defense procurement. H.Amdt. 615 would
have required GAO to conduct a study of certain procurement items to determine if there is
sufficient domestic production to adequately supply the Armed Forces, and to evaluate whether
such items could be made in the United States under the Berry Amendment. H.Amdt. 617 would
have expressed the sense of Congress that DOD should operate in full compliance through the
acquisition process of the Berry Amendment and the Buy American Act, and that DOD should not
procure products made by manufacturers in the United States that violate U.S. labor standards.
H.R. 3116, the Berry Amendment Extension Act, was introduced on July 7, 2009, by
Representative Larry Kissell. The proposed measure would have prohibited the purchase of
clothing, tents, tarpaulins, and certain other textiles unless the items are grown, reprocessed,
reused, or produced in the United States. The bill was referred to the Senate Homeland Security
and Governmental Affairs Committee. No further action was taken.

110th Congress
Legislation Proposed
H.R. 917, the Berry Amendment Extension Act, was introduced on February 8, 2007, by
Representative Robin Hayes. The proposed measure would have prohibited 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. The bill was referred to the House
Homeland Security Subcommittee on Management, Investigations, and Oversight. No further
action was taken.

Author Contact Information
(name redacted)
Specialist in Defense Acquisition
[redacted]@crs.loc.gov
, 7-....

(...continued)
63
§409, Sense of the Congress in Regard to Compliance with the Berry Amendment, the Buy American Act, and Labor
Standards of the United States.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3ARL31236. Public record. Not legal advice.