1. Berry Amendment

Comment: The majority of respondents contended that the current definition of "produce" is contrary to the Berry Amendment. Prior to enactment of 10 U.S.C. 2533b, the restriction on specialty metals was part of the domestic source restriction legislation commonly known as the Berry Amendment, included in annual defense appropriations act restrictions since 1973, and was eventually codified (with certain modifications) by section 832 of the NDAA for FY 2002 at 10 U.S.C. 2533a. In the NDAA for FY 2007, Congress deleted the specialty metals restrictions from 10 U.S.C. 2533a and created a new section at 10 U.S.C. 2533b to set forth the restrictions on specialty metals.

The respondents contended that, since the Berry Amendment required products to be wholly manufactured in the United States, the specialty metals restrictions should be equally restrictive. They stated that "melted or produced" means "melted" in the case of steel armor plate. These respondents averred that, although the legislation uses "melted or produced," it was not intended to weaken the requirement. However, some respondents did cite the report accompanying the Senate version of the bill, which indicated the intent to allow some flexibility in obtaining critical materials.

DoD Response: The law has never included a definition of "produce" regarding the requirement to acquire domestic specialty metals. When Congress created the new provisions on specialty metals in 10 U.S.C. 2533b, it expressly eliminated the prior restrictions on specialty metals in 10 U.S.C. 2533a and created new provisions regarding specialty metals at 10 U.S.C. 2533b, one of which was the phrase "melted or produced." DoD interprets this new phrase "melted or produced" as clearly permitting processes in addition to melting for the creation of specialty metals. One of the reasons for removing specialty metals from the rest of the Berry Amendment restrictions and enacting 10 U.S.C. 2533b was the need to differentiate the statutory restrictions for specialty metals from the statutory restrictions on other items covered by the Berry Amendment. The statement in the Senate report that 10 U.S.C. 2533b was intended to provide flexibility in obtaining critical materials provides support for DoD's definition of "produce" which gave DoD critical access to thin-gauge armor steel plate that was quenched or tempered in the United States, regardless of where the steel was melted.