resources · referenceBerry Amendment domestic sourcing requirement
The food, clothing, textile, tent, and hand-tool items 10 U.S.C. 4862 requires be 100% domestic, its dollar-threshold exception, the chemical-warfare-clothing carve-out, and how it differs from the Buy American Act and DFARS specialty metals.
The Berry Amendment — 10 U.S.C. 4862, formerly 2533a until Pub. L. 116-283 §1870(c)(2) renumbered it effective January 1, 2022 — bars the Department of Defense from spending appropriated funds on specified food, textile, and tool items unless they are "grown, reprocessed, reused, or produced in the United States." DFARS implements it at Subpart 225.7002 and the contract clause 252.225-7012. Unlike the Buy American Act, there is no percentage test: an item either meets the 100% domestic-origin requirement, or it doesn't qualify at all.
Covered items
10 U.S.C. 4862(b) and DFARS 225.7002-1(a) list the same covered categories:
- Food
- Every food item DoD procures, subject to a separate exception for domestically manufactured or processed food (below).
- Clothing and its materials and components
- Outerwear, headwear, underwear, nightwear, footwear, hosiery, handwear, belts, badges, and insignia — but not sensors, electronics, or other items added to clothing that aren't normally associated with it.
- Tents, tarpaulins, and covers
- Including the structural components of a tent (poles, frames, flooring, guy ropes, pegs) — but not equipment such as heating, cooling, or lighting fitted to a tent.
- Fibers, fabrics, and yarns
- 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 the fibers and yarns for use in such fabrics; canvas products; and wool, whether as fiber, yarn, or contained in a finished article.
- Individual equipment
- Any item of individual equipment (Product/Service Code 8465) manufactured from or containing the fibers, yarns, fabrics, or materials above.
- Hand or measuring tools
- Covered outright, with no materials qualifier.
- A flag of the United States
- Added as a covered item in 2023 (Pub. L. 118-31 §832(a)(1)); carries its own, lower $10,000 small-purchase exception rather than the general threshold below.
- Stainless steel flatware and dinnerware
- Added by the FY2025 NDAA (Pub. L. 118-159 §842(a), Dec. 23, 2024), effective for contracts entered into on or after January 1, 2026 — the same two categories the statute had covered briefly once before (2019–2023) and removed. The same 2024 act schedules their repeal from coverage effective January 1, 2029.
As of this page's review, DFARS 225.7002-1 and the contract clause 252.225-7012 have not yet been amended to add flatware and dinnerware to their own covered-items lists — the regulatory text lags the statute's January 1, 2026 effective date. The statutory requirement at 10 U.S.C. 4862(b)(3)–(4) governs regardless of whether the DFARS clause text has caught up.
The 100% domestic requirement — and no COTS exemption
The Buy American Act asks what percentage of an end product's component costs trace to the United States. The Berry Amendment asks a different, binary question: was the item grown, reprocessed, reused, or produced in the United States, full stop. There is no cost-of-components calculation, and — unlike DFARS specialty metals' COTS carve-outs — no general commercial-item exemption either. 10 U.S.C. 4862(i) states this explicitly: the section applies to commercial product acquisitions "notwithstanding" the general commercial-item exemption at 41 U.S.C. 1906.
The small-purchase exception — and a common mix-up
10 U.S.C. 4862(h)(1) excepts purchases of $150,000 or less from the domestic-sourcing requirement (a proposed purchase above that figure can't be split into smaller ones to qualify), and separately excepts flag purchases of $10,000 or less. Subsection (h)(3) lets the Secretary of Defense adjust that figure for inflation every five years, based on the Consumer Price Index. DFARS 225.7002-2(a) currently states the exception as $200,000 — the adjusted figure now in force — with one further carve-out: the exception never covers athletic footwear the military services purchase for members on their initial entry into the armed forces.
This is a fixed, Berry-specific dollar figure, not the FAR's general "simplified acquisition threshold" (currently $350,000, per FAR 2.101) — that broader FAR threshold is what excepts small purchases under DFARS specialty metals instead. The two regimes use differently-sized, differently-sourced small-purchase exceptions, and treating them as the same number is a common error.
The chemical warfare protective clothing exception
10 U.S.C. 4862(e) and DFARS 225.7002-2(n) except chemical warfare protective clothing produced outside the United States, but only when the purchase is necessary to comply with an offset agreement, or to further an agreement with a foreign government in which both governments agree to remove barriers to purchasing each other's supplies — and only when that agreement complies with section 36 of the Arms Export Control Act (22 U.S.C. 2776). In practice this routes through the same qualifying country mechanism DFARS 225.003 defines for specialty metals: chemical warfare protective clothing produced in a qualifying country can satisfy the exception.
Availability exceptions (domestic nonavailability determinations)
10 U.S.C. 4862(c) and DFARS 225.7002-2(b) except an item when the Secretary of Defense or a military department secretary determines that domestically sourced supply, in satisfactory quality and sufficient quantity, "cannot be procured as and when needed at United States market prices" — a domestic nonavailability determination (DNAD). Only five officials may make one, without power to redelegate: the Under Secretary of Defense for Acquisition and Sustainment, and the Secretaries of the Army, Navy, and Air Force, plus the Director of the Defense Logistics Agency. Every determination requires written justification from the requiring activity, and a public synopsis within 7 days of contract award. Since a 2024 statutory addition (Pub. L. 118-159 §848), DoD must also maintain a running list of every DNAD it makes and report it to Congress annually.
Other, narrower exceptions round out DFARS 225.7002-2: acquisitions outside the United States supporting combat or contingency operations; emergency or perishable-food purchases for personnel stationed abroad; purchases by vessels in foreign waters; commissary resale (except seafood originating from a covered foreign country — China, Russia, Iran, or North Korea — which the exception no longer reaches as of a 2025 statutory amendment); incidental cotton, other natural fiber, or wool content at or below 10% of an end product's price; and foods manufactured or processed domestically regardless of where they were grown — except fish, shellfish, and seafood, which must instead be taken from the sea by a U.S.-flag vessel or fished within the United States.
How this differs from DFARS specialty metals
Both regimes trace to the same era of defense-industrial-base statute and share a family resemblance — a domestic-sourcing bar with a qualifying-country escape valve and a nonavailability determination — but they cover different things in different ways. The Berry Amendment reaches a fixed, non-metal list of items (food, clothing, textiles, tools) and demands 100% domestic origin, with qualifying-country sourcing allowed only in two narrow carve-outs (chemical warfare protective clothing, and certain para-aramid fiber and yarn). DFARS specialty metals reaches metal content inside six named weapons-platform categories, treats melting or production in any qualifying country as fully equivalent to domestic sourcing, and adds a 2%-by-weight de minimis allowance the Berry Amendment's statute does not offer at all.
What items does the Berry Amendment cover?
Food; clothing and its materials and components (other than sensors, electronics, or other items added to and not normally associated with clothing); tents and their structural components, tarpaulins, and covers; cotton and other natural fiber products, woven silk, spun silk yarn for cartridge cloth, synthetic or coated synthetic fabric, canvas products, and wool; any item of individual equipment made from those fibers, yarns, or fabrics; hand or measuring tools; and a flag of the United States. Stainless steel flatware and dinnerware were added as covered items effective January 1, 2026, and are scheduled to be repealed from coverage January 1, 2029.
Does the Berry Amendment use a percentage test like the Buy American Act?
No. 10 U.S.C. 4862(a) requires a covered item to be "grown, reprocessed, reused, or produced in the United States" outright — a 100% domestic-origin requirement with no cost-of-components calculation and no general commercial-item exemption. The statute goes further than most domestic-preference law on this point: 4862(i) states expressly that the section applies to commercial product acquisitions notwithstanding the general commercial-item exemption at 41 U.S.C. 1906.
Is there a dollar threshold below which the Berry Amendment doesn't apply?
Yes, but it's a fixed statutory figure, not the FAR's general simplified acquisition threshold. 10 U.S.C. 4862(h)(1) sets the small-purchase exception at $150,000 (a separate $10,000 threshold applies to flag purchases), adjustable for inflation every five years. DFARS 225.7002-2(a) currently states this exception as $200,000 — the figure now in force under that inflation adjustment — except for athletic footwear the military services buy for new servicemembers, which the exception never covers.
Can chemical warfare protective clothing ever be sourced from outside the United States?
Yes, under a narrow carve-out. 10 U.S.C. 4862(e) and DFARS 225.7002-2(n) except chemical warfare protective clothing produced in a qualifying country, when the purchase is necessary to comply with an offset agreement or to further an agreement in which both governments agree to remove reciprocal purchasing barriers — the same qualifying-country mechanism DFARS 225.003 uses for specialty metals.