Berry Amendment Change Benefits U.S. Textile Industry
This mission began two-and-a-half years ago when a surprise reinterpretation of the Berry Amendment was announced by the Defense Logistics Agency (DLA) saying that military tents could be constructed with components made offshore. That subtle interpretive phrasing would curtail American companies, and was contrary to the spirit of the Berry Amendment, (USC, Title 10, Section 2533a), a law which requires the Department of Defense to give preference in procurement to domestically produced, manufactured, or home grown products.
Congress originally passed domestic source restrictions as part of the 1941 Fifth Supplemental DoD Appropriations Act in order to guarantee a domestic source for products needed during war.
The battle begins
In 2009 at the request of its membership — the U.S. military tent supply chain — USIFI sent a letter to Secretary of Defense, Robert Gates, explaining the industry's understanding of Berry compliance and requesting written clarification of the new DLA interpretation.
An August 2009 response from Nancy Heimbaugh, Director, Strategic Acquisition, DLA, reiterated DLA's position that only the fabric used in tents is subject to the Berry Amendment's domestic purchasing restriction; since tent components were not mentioned.
Ms. Heimbaugh's letter cited as example a phrase in the Berry Amendment statute that refers specifically to components of clothing items. (This section of the Berry Amendment had been changed in 2006; prior to that time, no mention of clothing components had been included in the Berry Amendment.) Because of similar issues of non-compliant clothing components like buttons and embroidered emblems being used in military apparel, the apparel industry initiated the 2006 change to the Berry Amendment.
The division advances
In the intervening months, USIFI polled the military tent-supply chain, including member and non-member companies and textile and non-textile component producers to determine if broad support existed for changing the statute's language to include tent components. There was no dissention.
USIFI member company Easton Technical Products stepped forward to lead the effort with help from Outdoor Venture Corporation, Camel Manufacturing, and Johnson Outdoors — three of the largest domestic MilSpec tent manufacturers. In addition, a number of tent frame, trim, and fabric suppliers agreed to help achieve a solution.
During 2009, 2010 and 2011, because of DLA's new interpretation of the Berry Amendment, new DoD contracts have been awarded to bidders using imported components. This created an industry-wide sourcing issue which threatens many jobs within the domestic military shelter supply chain during a time of high unemployment and economic uncertainty.
A concerted effort was made to write language into the FY2011 Ike Skelton National Defense Authorization Act that included domestic tent components as part of any contracts let by the DoD. Working through the office of Congressman Rob Bishop (UT, 1st), who at the time was on the House Armed Services Committee, leadership of the Defense Logistics Agency (DLA) was informed of the inconsistency and the industry's interest in fixing the error.
USIFI, with the assistance of the American Manufacturing Trade Action Coalition (AMTAC), worked with Rep. Rob Bishop to craft legislative language to correct DLA's mistaken interpretation. Rep. Bishop, following the counsel of the staff of the House Armed Services Committee (HASC), was able to propose that the following language be added to the DoD Authorization bill, H.R. 5136, in 2010:
"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 2533(a) 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 they are compliant with both the law and with congressional intent and submit a report to the Congressional defense committees not later than Oct. 1, 2011, explaining how the committee's concerns were addressed."
A battle lost
The HASC staff did not feel, at that time, that an attempt to amend the existing statutory language was warranted. Their proposed statement offered a strong indication that Congress' intent was that the military shelter components be covered under the domestic supply restriction of the Berry Amendment. Further, as "Directive report language," the DoD would be required to respond.
Unfortunately, the legislation which passed in the waning hours of the 111th Session of Congress (the Ike Skelton National Defense Authorization Act for Fiscal Year 2011) was stripped of much of the language in the earlier draft and did not include the previously agreed to language (above).
Therefore USIFI, with continuing help of the broad coalition of industry members and Representative Bishop's office, attempted a statutory fix in the 112th Congress. USIFI proposed language to be inserted into the 2012 National Defense Authorization Act, permanently amending the Berry statute so that tent components would be required to be produced in the U.S. The language was included in the Defense bill approved by the House, but it was not included in the Senate bill.
Victory at last
A joint House and Senate committee produced the final document which passed and was signed into law by President Obama on Dec. 31, 2011. The final bill, H.R. 1540 — the $662 billion 2012 National Defense Authorization Act — included the USIFI language requiring domestic production of all tent components.
It is important to note that this change is not an expansion of the Berry Amendment beyond its original scope, but rather a clarification of the original intent of the law. USIFI engaged its entire membership as well as the military shelter value chain in their effort. The success of the effort shows the value of collective action.
USIFI will continue to monitor military procurement, particularly Berry compliance, with 2012-2013 efforts directed to study of the recent change in the Berry threshold (the contract amount that triggers domestic sourcing requirement) from $100,000 to $150,000; and tactics employed by Defense Logistics Agency to circumvent Berry regulations.
Posted on January 17, 2012