NCTO Advisory to the Trade — April 18, 2019
The Berry Amendment
The Berry Amendment
The Berry Amendment is a statutory requirement that restricts the Department of Defense (DoD) from using funds appropriated or otherwise available to DoD for procurement of food, clothing, fabrics, fibers, yarns, other made-up textiles, and hand or measuring tools that are not grown, reprocessed, reused, or produced in the United States. The Berry Amendment has been critical to maintaining the safety and security of our armed forces, by requiring covered items to be produced in the United States. Further, the Berry Amendment has been critical to the viability of the textile and clothing production base in the United States. Some NCTO member companies are direct contractors to DoD and have first-hand knowledge of the Berry Amendment. Others are subcontractors subject to the Berry rules. Others may be interested in learning more about the opportunities that Berry creates for U.S. fiber, yarn, fabric, apparel, and sewn products manufacturers. This brief paper is provided solely for educating the general public about the Berry Amendment as it relates to textiles and clothing. It is not intended to give specific advice in relation to the terms of military contracts.
The History of the Berry Amendment
Since 1790, when President George Washington told the first session of Congress that the “safety and interest” of a free people “require that they should promote such manufactures as tend to render them independent of others for essential, particularly military supplies,” Congress has taken a special interest in the health of the manufacturing sector.
A military domestic sourcing requirement for uniforms was passed by Congress in 1941, as part of the Fifth Supplemental DoD Appropriations Act. Prior to World War II Congress understood war was on the horizon and the original intent of the restriction was to ensure U.S. troops wore uniforms produced in the United States.
In 1952 Congressman Berry of South Dakota introduced an amendment to the DoD’s Buy American restrictions. Prior to Congressman Berry’s amendment only food and certain clothing products were covered in the restrictions. Berry’s amendment expanded the DoD’s Buy American restrictions to cover all clothing, cotton and wool (man-made fibers were subsequently added). The Amendment was included in annual defense spending bills until it was made permanent in Fiscal Year 1994 by section 8005 of Public Law 103-139. It was subsequently codified as 10 U.S.C. 2533a in 2002 by section 832 of Public Law 107-107.
Common Questions about the Berry Amendment
Q. Wouldn’t the taxpayers of the U.S. benefit from giving DoD freedom to acquire textile and clothing from the lowest cost source, even if that means using foreign textiles and clothing?
A. The question is aimed at misdirecting attention away from the reason for the Berry Amendment. As the history above points out, from the founding of our nation, wise leaders have understood that a free people will be free only as long as they can supply their military to maintain that freedom. The 1941 law, which later became the Berry Amendment was passed in recognition of the fact that the U.S. would only be able to win monumental conflicts, such as WWII, if it is not dependent on foreign sources for critical defense materials.
Q. Does the Berry Amendment require the U.S. government to always buy American-made textiles and clothing.
A. No, the Berry Amendment applies to the U.S. Department of Defense only. There is a similar domestic sourcing requirement for the Department of Homeland Security (DHS), it is called the Kissell Amendment. Other U.S. government agencies have more flexibility with regard to acquisitions.
Q. Why just those two, DoD and DHS?
A. Under international trading rules as governed by the World Trade Organization (WTO), countries are normally required to make government procurement contracts open to supply from both domestic and foreign sources. However, these same WTO rules allow countries to restrict military and security procurement to domestic sources, only. Due to their national security role, DoD and DHS qualify for this exception. It is also important to note that in future trade agreements the U.S. needs to continue to reserve the right to require domestic sourcing in the case of the departments that are vital to our national defense — DoD and DHS.
Q. What about textile and clothing articles that DoD purchases for use by foreign defense agencies?
A. The Berry Amendment applies to all funds “made available” to the Defense Department. That includes Department of Defense procurement for a Foreign Military Sale (FMS) where the funds were provided by the customer country. So, for example, when the Afghan government provides money to DoD to acquire uniforms for the Afghan National Police, those uniforms are subject Berry Amendment U.S. sourcing requirements.
Q. Are there any exception to Berry?
A. There are two significant exceptions.
The SAT, or Simplified Acquisition Threshold, sets the base monetary amount at which Berry applies. Acquisitions below the SAT are exempt from Berry. Section 807 of the Ronald W. Reagan National Defense Authorization Act (NDAA) for Fiscal Year 2005 requires an adjustment every 5 years of acquisition-related thresholds for inflation using the Consumer Price Index (CPI). The last such adjustment was in 2010, raising the SAT to $150,000. No inflation-related adjustment has since been implemented. However, the 2018 NDAA ignored the current low rate of inflation and increased the SAT to $250,000.
A DNAD, or Domestic Non-Availability Determination, to the Berry Amendment may be granted if DoD determines that items grown, reprocessed, reused, or produced in the United States cannot be acquired as and when needed in a satisfactory quality and sufficient quantity at U.S. market prices. There is language in the legislative history of the Berry Amendment indicating that Congress intended for Defense agencies to exercise extreme caution in granting waivers, a fact that has been noted by the Government Accountability Office (GAO).
Q. Who can make Domestic Non-Availability Determinations?
A. The seriousness of Congress and the DoD in maintaining the Berry Amendment and protecting it from a proliferation of DNADs is the fact that just a limited number of officials have the authority to issue a DNAD, including The Under Secretary of Defense (Acquisition, Technology and Logistics), The Secretary of the Army, The Secretary of the Navy, and The Secretary of the Air Force.
Q. Where can I find a list of DNADs?
A. There is no list as such, as each determination relates to a particular set of circumstances and does not create a blanket exception to Berry with regard to some input. Questions about DNADs are best directed to the contracting officer.
Since the days that the Greatest Generation fought to preserve our freedom from threats around the globe, our fighting men and women have been assured that whatever other hardships they may have to bear while protecting us, they would, at least, be assured of clothing, tents, shelters, and other textile products necessary to get the job done. Through all this time, the U.S. textile industry has worked with our military to equip those brave men and women with the highest quality textile products incorporating emerging smart textile technology.
The Berry Amendment