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P. L. 107-107

House Conference Report 107-333

SEC. 832. CODIFICATION AND MODIFICATION OF PROVISION OF LAW KNOWN AS THE `BERRY AMENDMENT'.

(a) BUY AMERICAN REQUIREMENTS- (1) Chapter 148 of title 10, United States Code, is amended by inserting after section 2533 the following new section:

Sec. 2533a. Requirement to buy certain articles from American sources; exceptions

(a) REQUIREMENT- Except as provided in subsections (c) through (h), funds appropriated or otherwise available to the Department of Defense may not be used for the procurement of an item described in subsection (b) if the item is not grown, reprocessed, reused, or produced in the United States.

(b) COVERED ITEMS- An item referred to in subsection (a) is any of the following:

(1) An article or item of--

(A) food;

(B) clothing;

(C) tents, tarpaulins, or covers;

(D) cotton and other natural fiber products, woven silk or woven silk blends, spun silk yarn for cartridge cloth, synthetic fabric or coated synthetic fabric (including all textile fibers and yarns that are for use in such fabrics), canvas products, or wool (whether in the form of fiber or yarn or contained in fabrics, materials, or manufactured articles); or

(E) any item of individual equipment manufactured from or containing such fibers, yarns, fabrics, or materials.

(2) Specialty metals, including stainless steel flatware.

(3) Hand or measuring tools.

(c) AVAILABILITY EXCEPTION- Subsection (a) does not apply to the extent that the Secretary of Defense or the Secretary of the military department concerned determines that satisfactory quality and sufficient quantity of any such article or item described in subsection (b)(1) or specialty metals (including stainless steel flatware) grown, reprocessed, reused, or produced in the United States cannot be procured as and when needed at United States market prices.

(d) EXCEPTION FOR CERTAIN PROCUREMENTS OUTSIDE THE UNITED STATES- Subsection (a) does not apply to the following:

(1) Procurements outside the United States in support of combat operations.

(2) Procurements by vessels in foreign waters.

(3) Emergency procurements or procurements of perishable foods by an establishment located outside the United States for the personnel attached to such establishment.

(e) EXCEPTION FOR SPECIALTY METALS AND CHEMICAL WARFARE PROTECTIVE CLOTHING- Subsection (a) does not preclude the procurement of specialty metals or chemical warfare protective clothing produced outside the United States if--

(1) such procurement is necessary--

(A) to comply with agreements with foreign governments requiring the United States to purchase supplies from foreign sources for the purposes of offsetting sales made by the United States Government or United States firms under approved programs serving defense requirements; or

(B) in furtherance of agreements with foreign governments in which both such governments agree to remove barriers to purchases of supplies produced in the other country or services performed by sources of the other country; and

(2) any such agreement with a foreign government complies, where applicable, with the requirements of section 36 of the Arms Export Control Act (22 U.S.C. 2776) and with section 2457 of this title.

(f) EXCEPTION FOR CERTAIN FOODS- Subsection (a) does not preclude the procurement of foods manufactured or processed in the United States.

(g) EXCEPTION FOR COMMISSARIES, EXCHANGES, AND OTHER NONAPPROPRIATED FUND INSTRUMENTALITIES- Subsection (a) does not apply to items purchased for resale purposes in commissaries, exchanges, or nonappropriated fund instrumentalities operated by the Department of Defense.

(h) EXCEPTION FOR SMALL PURCHASES- Subsection (a) does not apply to purchases for amounts not greater than the simplified acquisition threshold referred to in section 2304(g) of this title.

(i) APPLICABILITY TO CONTRACTS AND SUBCONTRACTS FOR PROCUREMENT OF COMMERCIAL ITEMS- This section is applicable to contracts and subcontracts for the procurement of commercial items notwithstanding section 34 of the Office of Federal Procurement Policy Act (41 U.S.C. 430).

(j) GEOGRAPHIC COVERAGE- In this section, the term `United States' includes the possessions of the United States.'.

(2) The table of sections at the beginning of subchapter V of such chapter is amended by inserting after the item relating to section 2533 the following new item:

(b) REPEAL OF SOURCE PROVISIONS- The following provisions of law are repealed:

(1) Section 9005 of the Department of Defense Appropriations Act, 1993 (Public Law 102-396; 10 U.S.C. 2241 note).

(2) Section 8109 of the Department of Defense Appropriations Act, 1997 (as contained in section 101(b) of Public Law 104-208; 110 Stat. 3009-111; 10 U.S.C. 2241 note).

The House amendment contained a provision (sec. 805) that would codify the requirements of the `Berry Amendment' enacted as section 9005 of the Department of Defense Appropriations Act, 1993 (P.L. 102-396), and modify those requirements to: (1) require advance congressional notification of all waivers; (2) specifically include parachutes on the list of items covered; and (3) clarify that non-appropriated fund entities are not covered.

The Senate bill contained no similar provision.

The Senate recedes with an amendment that would codify the requirements of the `Berry Amendment' and clarify that non-appropriated fund entities are not covered. The conferees expect the Department to comply with a reasonable notification request from the Armed Services Committee of the Senate or the House of Representatives. The conferees also expect the Department to ensure that no United States manufacturer can provide the required item in a sufficient quality or quantity before granting a waiver.