Buying American: Protecting U.S. Manufacturing Through the Berry and Kissell Amendments

Congressional research reportMay 18, 2017

Ask Donna

What actually matters in this document.

Text

Buying American: Protecting U.S.

Manufacturing Through the Berry

and Kissell Amendments

(name redacted)

Specialist in Industrial Organization and Business

May 18, 2017

Congressional Research Service

7-....

www.crs.gov

R44850

Protecting U.S. Manufacturing Through the Berry and Kissell Amendments

Summary

The Berry and Kissell Amendments are two separate but closely related laws requiring that

certain goods purchased by national security agencies be produced in the United States.

The Berry Amendment (10 U.S.C. §2533a) is the popular name for a law requiring textiles,

clothing, food, and hand or measuring tools purchased by the Department of Defense (DOD) to

be grown, reprocessed, reused, or produced wholly in the United States. Congress over the

decades has varied the list of products covered by the law. Under the Kissell Amendment (6

U.S.C. §453b), textile, apparel, and footwear products purchased by certain Department of

Homeland Security (DHS) agencies—namely, the Transportation Security Administration (TSA)

and the U.S. Coast Guard—must be manufactured in the United States with 100% U.S. inputs.

The Berry and Kissell Amendments have created niche markets for domestic producers. DOD’s

Defense Logistics Agency purchased about $2.4 billion of Berry-applicable products in FY2016.

DOD’s annual Berry Act purchases equal approximately 2% of domestic textile and apparel

shipments and around 1% of domestic production of footwear, food, and hand or measuring tools.

Annual purchases of textiles, clothing, and shoes by the TSA and the Coast Guard pursuant to the

Kissell Amendment are approximately $30 million.

Proponents of the Berry and Kissell Amendments assert the laws serve to keep certain U.S.

production lines operating, provide jobs to American factory workers, and shield the U.S. military

from dependence on foreign sources for critical items that could lead to supply problems during

times of war or military mobilization. Critics of the amendments point out the laws may undercut

free-market competition and can result in higher costs to DOD and DHS because they must pay

more for protected products than the free market requires. They also argue the laws are

inconsistent with modern practices in manufacturing, which often rely on supply chains that

source components and raw materials from multiple countries. Another concern is that these

requirements can potentially provoke retaliation and harm foreign sales.

In recent Congresses, legislative action has centered on the scope of the Berry and Kissell

Amendments. For example, in the 2017 National Defense Authorization Act (NDAA), Congress

extended the Berry Amendment to athletic footwear, ending a voucher program that had allowed

new recruits to purchase foreign-made running shoes. Beginning on October 1, 2018, DOD is

scheduled to provide 100% U.S.-made running shoes to recruits. In the 115th Congress, H.R. 1811

has been introduced to widen the scope of the Kissell Amendment to all DHS agencies.

A related issue for Congress is the use of prison labor to manufacture Berry-compliant apparel by

DOD. A mandatory source provision in law gives an advantage to prison factories if they can

provide the desired product within the required time frame at a competitive price. In the 114th

Congress, the Federal Prison Industries Competition in Contracting Act of 2015 (H.R. 1699)

would have eliminated Federal Prison Industries’ no-bid contract status.

Requirements for obtaining waivers are another congressional concern. The Government

Accountability Office (GAO) is currently auditing DHS’s compliance with the Kissell

Amendment. The audit is expected to be finished in summer 2017.

Congress is also considering the effectiveness of the laws. To address this issue, the Bureau of

Industry and Security (BIS) at the U.S. Department of Commerce (DOC) is conducting an

assessment of the defense industrial base for textiles, apparel, and footwear, which will include a

review of the usefulness of the Berry and Kissell Amendments. That review is scheduled to be

released in 2017.

Congressional Research Service

Protecting U.S. Manufacturing Through the Berry and Kissell Amendments

Contents

Introduction ..................................................................................................................................... 1

Berry Amendment ........................................................................................................................... 1

International Obligations ........................................................................................................... 2

Kissell Amendment ......................................................................................................................... 2

International Obligations ........................................................................................................... 3

Exceptions to the Berry and Kissell Requirements ......................................................................... 3

The Berry and Kissell Amendments and Domestic Manufacturing ................................................ 4

Textiles and Apparel .................................................................................................................. 5

Exemptions ......................................................................................................................... 8

Economic Effects ................................................................................................................ 8

Footwear.................................................................................................................................... 9

Food ......................................................................................................................................... 11

Hand or Measuring Tools ........................................................................................................ 13

Congressional Debate .................................................................................................................... 14

Changes in Scope .................................................................................................................... 15

Waiver Requirements .............................................................................................................. 15

Audits ...................................................................................................................................... 15

Figures

Figure 1. Berry Amendment Purchases ........................................................................................... 5

Figure 2. Textile and Apparel Production Steps .............................................................................. 6

Figure 3. U.S. Textile and Apparel Employment............................................................................. 9

Figure 4. Example of Components Used in New Balance’s 950 Running Shoe ............................ 11

Appendixes

Appendix A. Comparison of Berry Amendment, Kissell Amendment, and Buy American

Act .............................................................................................................................................. 17

Appendix B. Selected Berry Amendment Domestic Nonavailability Waivers (DNAD)

Since 2005 .................................................................................................................................. 18

Contacts

Author Contact Information .......................................................................................................... 19

Congressional Research Service

Protecting U.S. Manufacturing Through the Berry and Kissell Amendments

Introduction

Congress has passed several laws requiring that goods purchased by federal agencies be produced

in the United States. Among these are two separate but closely related laws applying to national

security agencies. The Berry Amendment covers direct Department of Defense (DOD) purchases

of textiles, apparel, footwear, food, and hand or measuring tools. The Kissell Amendment is more

limited, applying to textiles, apparel, and footwear procured by certain Department of Homeland

Security (DHS) agencies. Under these two laws, the purchased items must be 100% domestic in

origin, unless exemptions laid out in the laws apply.

The two laws are controversial. Proponents argue the amendments are important to the U.S.

economy by helping to preserve the U.S. industrial base and creating manufacturing jobs for

American workers. They also claim domestic preference laws may lessen dependence on foreign

sources for certain critical U.S. military and nonmilitary needs, and that these laws encourage

some foreign manufacturers to invest within the United States so that their products can be sold to

the U.S. government. On the other hand, opponents believe the laws give monopolies to certain

companies, raise the government’s procurement costs, and fail to fully utilize the international

supply chains that many U.S. manufacturers rely on to meet their production needs.

Berry Amendment

The Berry Amendment (10 U.S.C. §2533a) is the popular name of a 1941 statute enacted as part

of the Fifth Supplemental National Defense Appropriations Act (P.L. 77-29). It has been amended

numerous times.1 It became a permanent part of the U.S. Code when it was codified by the

FY2002 National Defense Authorization Act (P.L. 107-107).2 Proposals to alter the Berry

Amendment typically are advanced during consideration of defense appropriations acts and the

National Defense Authorization Act. DOD implements the Berry Amendment through its Defense

Federal Acquisition Regulation Supplement (DFARS).3

The Berry Amendment specifies that affected products purchased directly by DOD must be

“entirely grown, reprocessed, reused, or produced in the United States.” Unless DOD grants a

waiver because domestic firms do not make the product or because other exceptions in the law

are met, the entire production process of an affected product, from the production of raw

materials to the manufacture of all components to final assembly, must be performed in the

United States. As an example, when DOD purchases a military uniform, it must be sewn in the

United States using fabric, thread, buttons, and zippers made in the United States from raw

materials of U.S. origin.

The Berry Amendment mandates a much higher level of domestic content than the Buy American

Act of 1933, which generally governs the procurements of other federal agencies. Under the Buy

American Act, the final product must be mined, produced, or manufactured in the United States,

and if manufactured, either at least 50% of the cost of its components, by value, must be

Originally, the Berry Amendment covered only troops’ uniforms and food, with other items added or removed over

time. In 2007, for example, specialty metals were removed from the Berry Amendment. The rules governing specialty

metals are now codified as 10 U.S.C. §2533b.

Some say the Berry Amendment was named for George Leonard Berry, a Democrat from Tennessee, although this is

unconfirmed.

DFARS, Part 225.7002, http://www.acq.osd.mil/dpap/dars/dfars/html/current/252225.htm#252.225-7002.

Congressional Research Service

Protecting U.S. Manufacturing Through the Berry and Kissell Amendments

manufactured in the United States, or the end product must be a commercially available off-theshelf item.

International Obligations

The United States has made binding commitments related to the government procurement market

under the World Trade Organization Agreement on Government Procurement (WTO GPA). Of

the more than 45 countries that are parties to this arrangement, each has agreed to provide

producers in other signatory countries access to its national government procurement markets.

This can result in certain “foreign” products being treated as “domestic” ones in specific

procurements. However, the agreement expressly does not apply to DOD procurements involving

textiles, clothing, food, and hand or measuring tools.4 This Berry Amendment restriction also

applies to most U.S. free-trade agreements, including the North American Free Trade Agreement

and the Dominican Republic-Central America Free Trade Agreement, as well as to bilateral freetrade agreements with Australia, Morocco, Peru, South Korea, and Colombia.5

Kissell Amendment

A second law, sometimes referred to as the Kissell Amendment (6 U.S.C. §453b), is modeled on,

but not identical to, the Berry Amendment.6 The Kissell Amendment was enacted as Section 604

of the American Recovery and Reinvestment Act of 2009 (P.L. 111-5).7 It applies to the Coast

Guard and the Transportation Security Administration (TSA), both of which are within DHS. It is

implemented through the Homeland Security Acquisition Regulation,8 which imposes domestic

content restrictions on certain clothing, textile, and footwear products acquired by particular DHS

agencies when an item is directly related to national security.

In introducing the amendment, Representative Lawrence Kissell noted he was particularly

interested in supporting the domestic textile industry.9 Thus, the narrowly defined purpose of the

Kissell Amendment is to ensure that DHS purchases of textile, apparel, and footwear products are

wholly produced in the United States. The law covers clothing (including materials and

components), canvas or textile products, natural and synthetic fabrics, individual equipment

items, and footwear products. If these items are related to “the national security interests of the

United States,” they must be “domestically grown, reprocessed, reused, or produced in the United

WTO GPA, United States Appendix I, Annex I, specifies that the WTO GPA does not apply to DOD purchases

involving (1) Federal Supply Classification (FSC) 83 (textiles) (other than pins, needles, sewing kits, flagstaffs,

flagpoles, and flagstaff trucks); (2) FSC 84 (clothing and individual equipment, other than luggage); (3) FSC 89 (food)

(other than tobacco products); and (4) FSC 51 and 52 (hand or measuring tools). See WTO, Appendices and Annexes

to the GPA, https://www.wto.org/english/tratop_e/gproc_e/appendices_e.htm#appendixI.

Information is based on a May 2, 2017, email exchange between CRS and the Department of Commerce’s Office of

Textiles and Apparel.

6 U.S.C. §453b, Requirements to buy certain items related to national security interests from American sources;

exceptions, http://uscode.house.gov/browse/prelim@title6/chapter1&edition=prelim.

Named for Rep. Lawrence Kissell, who from 2009 to 2013 represented North Carolina’s 8 th congressional district.

The Kissell provision was made permanent during the 111th Congress through the DHS authorization process.

See parts 3025 and 3052 of the Revision of Department of Homeland Security Acquisition Regulation: Restrictions

on Foreign Acquisition (HSAR Case 2009-004), https://www.federalregister.gov/documents/2010/06/09/2010-13804/

revision-of-department-of-homeland-security-acquisition-regulation-restrictions-on-foreign#p-12.

See Congressional Record, vol. 155, part 1 (January 28, 2009), pp. H723-H724.

Congressional Research Service

Protecting U.S. Manufacturing Through the Berry and Kissell Amendments

States” to the greatest extent possible. Unlike the Berry Amendment, the Kissell Amendment does

not apply to food or to hand or measuring tools.

International Obligations

Although the Kissell Amendment as enacted applies to all agencies of DHS, in practice its

restrictions apply only to the Coast Guard and TSA. The reason for this is that, prior to the Kissell

Amendment’s passage, the United States had entered into commitments under various trade

agreements to open U.S. government procurement to imported goods. However, the WTO GPA

entitles the United States to exempt agencies critical to national security from its international

procurement obligations. The United States has applied this exemption to those two agencies, so

the Kissell Amendment governs their procurement.

Other DHS agencies, such as Customs and Border Protection, Immigration and Customs

Enforcement, the Federal Emergency Management Agency, and the Secret Service are not

covered by the exemption, and the Kissell Amendment therefore does not apply. Like many other

agencies, these agencies’ procurement is subject to the less stringent Buy American Act.

However, under the Trade Agreements Act of 1979, if a procurement is covered under a trade

agreement, then Buy American Act restrictions are waived.10 Thus, DHS can purchase textile and

apparel products from more than 100 countries if certain conditions are met.

The United States has also entered into commitments under various free-trade agreements to open

U.S. government procurement to imported goods. As a result of these trade agreements,

manufacturers in Mexico, Canada, and Chile are treated as “American” sources under the Kissell

Amendment.

Exceptions to the Berry and Kissell Requirements

The Berry Amendment includes several exemptions, which may apply at the discretion of DOD.

For example, DOD may buy covered items from non-U.S. sources when



products are unavailable from American manufacturers at satisfactory quality and

in sufficient quantity at market prices;11

items are used in support of combat operations or contingency operations;

products are purchased by vessels in foreign waters (e.g., a Navy ship is docked

overseas and the crew needs to purchase textile, clothing, or footwear items);

products contain noncompliant fibers, if the value of those fibers is not greater

than 10% of the product’s total price;

items are for emergency acquisitions;

products are intended for resale at retail stores such as military commissaries or

post exchanges;12 or

Mary Lynn Landgraf, New Approaches for Selling to the Military, International Trade Administration, Office of

Textiles and Apparel, October 6, 2015, p. 18, http://otexa.trade.gov/Presentations_TradeEvents/

New_Approaches_to_Selling_to_%20the_Military.pdf.

The Under Secretary of Defense for Acquisition, Technology, and Logistics (AT&L) and the secretaries of the

military services have the authority to determine that certain items under the Berry Amendment are not available

domestically in quantities or qualities that meet military requirements. Such decisions are called domestic

nonavailability determinations, or DNADs. On February 1, 2018, DOD will abolish the AT&L office, and Berry

Amendment compliance will be overseen by a new office of acquisition and sustainment.

Congressional Research Service

Protecting U.S. Manufacturing Through the Berry and Kissell Amendments



the purchase is part of a contract whose value is below the Simplified Acquisition

Threshold, generally $150,000, beneath which certain federal procurement

regulations do not apply.13

Kissell Amendment exemptions are often the same as those in the Berry Amendment, such as

purchases beneath the Simplified Acquisition Threshold. But there are also some notable

differences. For example, the Kissell Amendment has “national security” limiting language that is

not included in the Berry Amendment. This restricts Kissell Amendment coverage to purchases

intended for or used by DHS to protect against internal or external threats to the United States.14

Thus, if an item, such as curtains for a DHS office, is not related to activities to protect the United

States from internal or external national security threats, its procurement most likely would not be

subject to the Kissell Amendment.

Appendix A shows the differences between the Berry Amendment, the Kissell Amendment, and

the Buy American Act.

The Berry and Kissell Amendments and Domestic

Manufacturing

Sales to DOD in the four Berry-applicable product categories totaled $2.4 billion in FY2016 (see

Figure 1). DOD expenditures on Berry Amendment products accounted for roughly 1% of the

department’s spending on products and services in FY2016, according to figures from the Federal

Procurement Data System-Next Generation (FPDS-NG).15

(...continued)

The Berry Amendment grants a blanket exemption to the military resale systems (military commissaries and

exchanges). These stores sell more than $1 billion in apparel alone. Exchanges get more than 90% of their clothes from

factories outside the United States, according to one industry estimate.

The Simplified Acquisition Threshold is considered every fifth year (in years evenly divisible by five—2015, 2020,

2025, etc.), and sometimes it is raised. The threshold process is governed primarily by 41 U.S.C. §1908, which requires

review and adjustment of certain statutory acquisition-related thresholds for inflation using the Consumer Price Index.

The threshold is defined in Federal Acquisition Regulation §2.101 (48 C.F.R. §2.101).

See HSAR 3025.7001(3), https://www.dhs.gov/sites/default/files/publications/CPO_HSAR_1_0.pdf.

FPDS–Next Generation is the official source for federal procurement data. See General Services Administration,

Federal Procurement Data System–Next Generation, https://www.fpds.gov/fpdsng_cms/index.php/en/.

Congressional Research Service

Protecting U.S. Manufacturing Through the Berry and Kissell Amendments

Figure 1. Berry Amendment Purchases

Source: CRS, using data compiled from the Federal Procurement Data System-Next Generation.

Note: Five federal supply groups (FSGs) are used to provide a general picture of items covered by the Berry

Amendment: hand tools (FSG 51); measuring tools (FSG 52); textiles (FSG 83); apparel, footwear, badges,

individual equipment, and personal armor (FSG 84); and food (FSG 89).

One reason for the drop in spending on Berry-related products in recent years is the decrease in

Armed Forces end strength. The number of active-duty personnel fell to 1.38 million in 2016

from 1.51 million in 2010, when the U.S. military was more actively engaged in Iraq and

Afghanistan.16 If there is a higher level of defense spending in coming years, this could result in

increased DOD demand for Berry-applicable products.17

In FY2016, the Coast Guard and TSA combined accounted for more than $30 million in

procurement obligations for Kissell items. Most of this amount involves uniforms. TSA provides

14 different uniform items to new hires.18

Textiles and Apparel

Under the Berry and Kissell Amendments, all covered textile and apparel items must be

manufactured in the United States from domestic components. This has created niche markets for

domestic producers.19 Figure 2 provides a graphic depiction of the textile and apparel production

steps affected by these laws.

Office of the Under Secretary of Defense, National Defense Budget Estimates for FY2017, March 2016, pp. 258-260,

http://comptroller.defense.gov/Portals/45/Documents/defbudget/fy2017/FY17_Green_Book.pdf.

Pat Host, “FY ‘17 Defense Spending Slams F-35 Program; Air Force, Navy Programs Get Boosts,” Defense Daily,

March 2, 2017.

TSA’s initial uniform issue consists of three long-sleeve shirts, three short-sleeve shirts, two pairs of trousers, two

ties, and one belt, sweater, socks, and jacket. See also TSA, Uniform Procurement: Compliance with the Buy American

Act, Fiscal Year 2015 Report to Congress, May 13, 2015, p. 2; TSO Dress and Appearance Responsibilities, February

3, 2010, p. 10, https://www.afge.org/globalassets/documents/tsa/representation/dress-and-appearance—handbook.pdf;

and Stronger Union, Safer Skies, https://www.afge.org/about-us/agencies/tsa/.

Clothing items include outerwear, headwear, underwear, nightwear, footwear, hosiery, headwear, belts, badges, and

insignia. Textile products include cotton and other natural fiber products, woven silk or woven silk blends, spun silk

yarn for cartridge cloth, coated synthetic fabric, including all textile fibers and yarns that are for use in such fabrics,

(continued...)

Congressional Research Service

Protecting U.S. Manufacturing Through the Berry and Kissell Amendments

Figure 2.Textile and Apparel Production Steps

Source: CRS, adapted from an illustration compiled by the U.S. International Trade Commission.

DOD spent approximately $1.6 billion on Berry-compliant purchases of textiles and apparel in

FY2016, and DHS purchases of apparel under the Kissell Amendment came to more than $30

million. Purchases subject to the Berry and Kissell Amendments represented around 2% of the

$68 billion of textile and apparel shipments from U.S. factories in 2016.20

In FY2016, the top apparel products consumed by DOD were special-purpose clothing, personal

armor, individual equipment, and footwear.21 Among the large private contractors benefiting from

the Berry Amendment market were American Apparel, a producer of military uniforms, in

Alabama;22 Ceradyne,23 a major supplier of military body armor, in California; Campbellsville

Apparel, a large supplier of undergarments to the military, in Kentucky; and contractors that sell

textile fabrics to DOD, such as the International Textile Group’s Burlington Industries of North

Carolina.

Outside the mainland United States, Puerto Rico is the largest source of military apparel items.

Several large private suppliers operate Berry-compliant manufacturing facilities there, including

(...continued)

canvas products, wool, and any item of individual equipment manufactured from or containing fibers, yarns, fabrics, or

materials listed here.

Calculated by CRS, with data from the U.S. Census Bureau, Manufacturers’ Shipments, Inventories, and Orders

(M3) Survey, for textile and apparel shipments, https://www.census.gov/manufacturing/m3/.

Department of Defense Instruction 1338.18 prescribes the quantity and types of clothing to be furnished by the

secretaries of the military departments (Army, Navy, Air Force, and Marine Corps) within their own organizations to

enlisted personnel. Officers generally receive a one-time clothing allowance payment upon commissioning. Clothing

items include everything from towels, boots, socks, and underwear to helmets. DOD provides cash allowances for

items not issued. See Department of Defense, Armed Forces Clothing Monetary Allowance Procedures, Number

1338.18, January 7, 1998. Members of the Armed Forces are responsible for maintaining and replacing uniforms,

which may be replaced with uniform items that are not Berry-compliant because service members are using their own

funds to make the purchases.

American Apparel has no affiliation with the Los Angeles-based manufacturer of the same name. See American

Apparel, The Company, http://amappinc.com/the_company.

Ceradyne, a domestic supplier of body armor, is now part of the 3M Company’s Energy and Advanced Materials

Division.

Congressional Research Service

Protecting U.S. Manufacturing Through the Berry and Kissell Amendments

Propper International, M&M Manufacturing, and Bluewater Defense. Government supply

sources, including those that operate under the AbilityOne program, such as the National

Industries for the Blind, the Travis Association of the Blind, and Goodwill Industries, are also

significant suppliers of apparel for the military market.24

Federal Prison Industries (FPI), also known as UNICOR,25 delivers prison-manufactured apparel

compliant with the Berry Act.26 FPDS reports that action obligations of clothing from UNICOR to

the Department of Defense totaled nearly $100 million in FY2016. As of September 30, 2016, 18

U.S. penitentiaries and federal correctional institutions produced clothes and textiles, including

facilities in Atlanta, GA; Beaumont, TX; Jesup, GA; Talladega, AL; and Butner, NC.27

FPI/UNICOR buys raw materials and component parts from private industry.

DOD’s awarding of clothing contracts to this government-owned supplier has proven

controversial in both Congress and the apparel industry.28 Critics have voiced concern that prison

industrial programs hurt private industry and provide jobs for inmates rather than residents who

are not incarcerated.29 Among other issues, critics have challenged FPI/UNICOR’s mandatory

source provision, which requires DOD to purchase from FPI/UNICOR factories if they can

provide the desired product within the required time frame and at a competitive price. The

mandatory source requirement is waived when the prison share of federal purchases of a product

rises above 5% of total DOD purchases of that product.30 In FY2016, DOD accounted for more

than 90% of FPI/UNICOR’s textile and apparel sales. In that year, FPI/UNICOR also sold about

$250,000 in apparel to the U.S. Coast Guard.

Over the years, Congress has considered various bills to eliminate FPI’s mandatory source clause

and require FPI/UNICOR to compete for federal contracts. For example, in the 114th Congress,

These nonprofit government supply sources make various apparel items for DOD, including battle dress uniforms,

cotton trouser belts, and Army Combat Uniform trousers. According to its website, the AbilityOne program, formerly

known as the Javits-Wagner-O’Day (P.L. 92-28) program, is the largest source of employment in the United States for

people who are blind or have significant disabilities. For more details, see The AbilityOne Program, Expanding

Opportunities, http://www.acq.osd.mil/dpap/cpic/cp/docs/2015_AbilityOne_DoD_Fact_Sheet.pdf.

The FPI/UNICOR industrial manufacturing program, a wholly owned government corporation within the

Department of Justice’s Federal Bureau of Prisons (BOP), was established by President Franklin D. Roosevelt in 1934

by Executive Order 6917. FPI changed its name to UNICOR in 1977. By statute, FPI/UNICOR products must be

purchased by federal agencies, and they are not available for sale in interstate commerce or to nonfederal entities.

UNICOR, Federal Prison Industries, Inc., Fiscal Year 2016 Annual Management Report, November 15, 2016, pp. 1

and 8, https://www.unicor.gov/publications/reports/FY2016_AnnualMgmtReport.pdf.

For a map and list of UNICOR’s factory locations, see https://www.bop.gov/inmates/custody_and_care/

unicor_about.jsp.

A 2013 audit of FPI’s operations showed that 4,600 inmates nationwide worked in the voluntary prison clothing and

textile factory program in June 2012, the most recent data available. For additional details, see U.S. Department of

Justice, Office of the Inspector General Audit Division, Audit of the Management of Federal Prison Industries and

Efforts to Create Work Opportunities for Federal Inmates, Audit Report 13-35, September 2013, p. 4. See also FPI

General Overview FAQs, https://www.unicor.gov/FAQ_General.aspx. Inmates’ wages are based on seniority and rate

of production of each inmate and range between $0.23 and $1.15 per hour. Participation in the FPI/UNICOR program

is voluntary for inmates and is not available to all inmates.

U.S. Congress, House Committee on Armed Services, National Defense Authorization Act for Fiscal Year 2013,

H.R. 4310, 112th Cong., 2nd sess., May 11, 2012, 112-479, p. 284, https://www.gpo.gov/fdsys/pkg/CRPT-112hrpt479/

pdf/CRPT-112hrpt479.pdf.

See UNICOR, Mandatory Source Purchasing Exceptions, https://www.unicor.gov/publications/corporate/

CATC6500_FINAL_20160114.pdf. This allowable exemption was passed under the National Defense Authorization

Act for FY2008 (P.L. 110-181).

Congressional Research Service

Protecting U.S. Manufacturing Through the Berry and Kissell Amendments

the Federal Prison Industries Competition in Contracting Act of 2015 (H.R. 1699) would have

eliminated FPI’s no-bid contract status.31

TSA’s biggest supplier of apparel under the Kissell Amendment in FY2016 was VF Imagewear, a

subsidiary of VF Corporation, and owner of brands such as Lee Brand and Wrangler Hero.32 DHS

accounts for around 10% of VF’s sales. The company produces clothes in a number of U.S.

locations.33

Exemptions

Congress regularly considers exemptions to the Berry Amendment. For instance, over the years,

lawmakers have passed legislation granting permanent waivers for flame-resistant rayon fabrics

used in standard ground combat uniforms.34 A 1999 waiver for para-aramid fibers and yarns used

as a principal fiber in antiballistic body armor,35 taking the form of a grant of authority to DOD to

procure articles containing para-aramids from foreign sources, has since been implemented in the

DFARS as a Berry Amendment exception.36

Economic Effects

In the commercial market, apparel firms have been outsourcing the labor-intensive manufacturing

process to low-wage countries for many years, often constructing elaborate supply chains that

allow inputs from multiple countries to be combined into a single finished product. As shown in

Figure 3, direct employment in apparel manufacturing dropped 85% from 1990 to 2016, from

about 900,000 jobs to roughly 130,000 jobs. In the more highly automated textile manufacturing

industry, employment fell from 700,000 in 1990 to about 230,000 in 2016.37 Many of the

remaining textile industry workers are involved in producing fabrics for industrial applications,

such as conveyor belts and automotive floor coverings, rather than for apparel.

Other legislative changes to the FPI program are discussed in CRS Report RL32380, Federal Prison Industries:

Background, Debate, Legislative History, and Policy Options, by (name redacted)

“Spending $50 Mil for TSA Uniforms Shows Washington’s Lunacy,” Investor’s Business Daily, March 15, 2013,

http://www.investors.com/politics/perspective/just-when-you-think-washington-spending-can8217t-get-any-crazier-itdoes/.

See VF, VF’s Owned and Operated and Tier 1 Supplier Factory List, Active Factories During Q4, 2016,

https://static1.squarespace.com/static/55649607e4b0576ead7365cd/t/589a2ef82994ca176615d4f5/1486499599728/

VFs_Global_SupplierFactoryList_2016_Q4.pdf.

See National Defense Authorization Act for FY2012 (P.L. 112-81), §822.

Kevlar is one of the best-known brand names for aramid fiber materials. Aramid is shorthand for the scientific name

aromatic polyamide.

Strom Thurmond National Defense Authorization Act for FY1999 (P.L. 105-261), §807. The DFARS exception is

discussed in the U.S. Government Accountability Office report Military Uniforms: Issues Related to the Supply of

Flame Resistant Fibers for the Production of Military Uniforms, June 30, 2011, http://www.gao.gov/products/GAO-11682R.

Employment data compiled by CRS from U.S. Bureau of Labor Statistics, Current Employment Statistics (CES)

Survey, accessed April 2017. Apparel employment data cover NAICS code 315, and textile employment covers two

NAICS codes, 313 and 314.

Congressional Research Service

Protecting U.S. Manufacturing Through the Berry and Kissell Amendments

Figure 3. U.S. Textile and Apparel Employment

Source: CRS, based on analysis of data from the Bureau of Labor Statistics Current Employment Survey.

Note: 2016 data are preliminary.

The Berry and Kissell Amendments require apparel manufacturers to construct supply chains

separate from those used in commercial apparel production, relying exclusively on domestic

manufacturers of components such as buttons and zippers. Because these producers lack scale and

face little competition in the market for 100% U.S.-made products, they may have cost structures

that make it difficult to compete in the commercial apparel market.

Notwithstanding the protection offered by the Berry Amendment and, more recently, the Kissell

Amendment, manufacturers have found it difficult to sustain domestic production of many types

of textiles and apparel. For example, six years after opening a $500 million factory, DuPont

recently announced plans to shutter its South Carolina Kevlar para-aramid production plant,

which manufactures a fiber used in bulletproof vests and combat helmets for the military. DuPont

cited uncertainty over DOD orders for para-aramid fibers as one reason for the plant closure,

along with a lack of commercial demand.38

The Bureau of Industry and Security at the Department of Commerce is updating its 2003

assessment of the U.S. textile, apparel, and footwear industries. The updated assessment, which

the bureau expects to finish in summer 2017, is expected to address the effectiveness of the Berry

and Kissell Amendments and other domestic-source laws.39

Footwear

About 99% of all footwear sold in the United States is imported, according to the Footwear

Distributors and Retailers of America, the main trade group representing solely the footwear

industry.40 The United States maintains a small number of firms manufacturing nonorthopedic

“DuPont to Close Kevlar Plant, Putting 113 Out of Jobs,” Associated Press, March 4, 2017,

https://www.usnews.com/news/best-states/south-carolina/articles/2017-03-04/dupont-to-close-kevlar-plant-putting113-out-of-jobs.

Bureau of Industry and Security (BIS), U.S. Department of Commerce, Industrial Base Assessments,

https://www.bis.doc.gov/index.php/other-areas/office-of-technology-evaluation-ote/industrial-base-assessments.

Footwear Distributors and Retailers of America (FDRA), “Footwear Customs,” http://fdra.org/key-issues-and(continued...)

Congressional Research Service

Protecting U.S. Manufacturing Through the Berry and Kissell Amendments

footwear, including boots and other types of footwear for the military.41 These firms employed

about 10,800 workers in 2015. DOD’s direct purchases of footwear, such as combat boots and

military dress shoes, totaled about $157 million in FY2015. This is equivalent to roughly 9% of

the sales of U.S. footwear manufacturers,42 implying that the domestic-purchase requirement

protected approximately 1,000 jobs. Leading DOD footwear contractors include McRae, Rocky

Brands, and Wolverine.

In the 2017 National Defense Authorization Act, Congress extended the Berry Amendment to

require the military services to provide recruits with 100% U.S.-made running shoes.43

Previously, DOD provided vouchers to recruits to purchase athletic footwear, which did not have

to be domestic in origin. The new requirement is to be implemented beginning on October 1,

2018, and may create a new market for athletic shoes manufactured domestically.

As with other types of footwear, assembling a running shoe may require more than a dozen parts

(see Figure 4). New Balance, a maker of running shoes, reportedly manufactures about 25% of

its domestically sold products in Massachusetts and Maine, but imports the majority of its

inventory from China and Vietnam.44 Currently, a “Made in the USA” New Balance sneaker can

include up to 30% foreign content, which would not meet the 100% U.S.-made requirement of the

Berry Amendment.45 However, the company says it will be able to manufacture a wholly

American-made athletic shoe for the military. Wolverine Worldwide, a Michigan-based footwear

firm, manufactures some shoes in the United States, including combat boots and military dress

shoes, and the rest in Asia. Nike, which sources virtually all of its footwear from independent

manufacturers overseas, had opposed a strict American-made athletic shoe purchase policy for the

military. Adidas, another major athletic shoe brand, has announced that it plans to open a factory

in the United States in 2017 to produce U.S.-made running shoes.46 Adidas’s so-called

“speedfactory” would be largely operated by robots.

(...continued)

advocacy/footwear-customs/.

Footwear assembly is as complicated as producing a garment. Making a shoe may require as many as 20 parts,

including the upper (which covers the top and sides of the foot), the bottom part (which consists of the midsole and

outsole), and other components (such as shoelaces, eyelets, and yarn for linings). As is the case with apparel

production, shoemaking uses a variety of materials, including leather, rubber, and various types of fabric. See Textile

Exchange, Shoe Making—How Shoes are Made, http://www.teonline.com/knowledge-centre/shoe-making-how-shoesmade.html.

Domestic footwear manufacturers reported sales of $1.784 billion in 2015; data for 2016 are not available. See U.S.

Census Bureau, 2015 Annual Survey of Manufactures, Footwear Manufacturing NAICS 3162, accessed April 28, 2017,

https://www.census.gov/data/tables/2015/econ/asm/2015-asm.html.

The footwear provision was enacted as Section 817 of P.L. 114-328.

Alec Banks, “The Unexpected Connection Between the Military and New Balance,” Highsnobiety, March 14, 2017,

http://www.highsnobiety.com/2017/03/13/new-balance-1978-shoe/.

New Balance, Made in USA Sneakers, http://www.newbalance.com/made-in-us-and-uk/.

Adidas, “Adidas Will Open Atlanta-Based Facility to Make Shoes in America,” press release, August 10, 2016.

Congressional Research Service

Protecting U.S. Manufacturing Through the Berry and Kissell Amendments

Figure 4. Example of Components Used in New Balance’s 950 Running Shoe

Source: The New England Council, “Department of Defense to Procure ‘Made in America’ Running Shoes,”

https://newenglandcouncil.com/blog-post/department-of-defense-to-procure-made-in-america-running-shoes/.

Food

Military food items, also known as subsistence items, are purchased, with few exceptions,

through the Defense Logistics Agency (DLA) Troop Support Subsistence Directorate in

Philadelphia, PA, which serves as the operational manager for all food operations. Just as with

textiles, apparel, and footwear, DLA must buy food items in accordance with the provisions of

the Berry Amendment, generally requiring food served to U.S.-based troops be of wholly

domestic origin, with certain allowable exemptions and waivers. The Kissell Amendment

contains no provisions related to food products.

Food products were the second-largest share of DOD’s contract obligations subject to Berry

Amendment requirements, at more than $655 million in sales in FY2016.47 These sales

represented slightly more than 1% of overall domestic food, beverage, and tobacco manufacturing

shipments that year.48

Most packaged, nonperishable food items are purchased through DLA’s subsistence prime vendor

program. Current participants include about 50 commercial food distributors, ranging from large

companies such as U.S. Foods, Sysco, and Labatt Food Service to much smaller companies.49

DLA buys U.S.-origin food products from manufacturers such as Kraft Heinz, Nestle, General

Mills, Tyson Foods, ConAgra, and Campbell Soup,50 which then ship the purchases to a prime

vendor for delivery to military dining facilities and other locations. DOD also buys some unique

and perishable items directly from producers.

Food products include meat, poultry, seafood, dairy, cereals, fruits and vegetables, snack foods, baked goods,

beverages, and condiments and other items classified under federal supply group 89.

CRS, with data from the Census Bureau, Manufacturers’ Shipments, Inventories, and Orders for food shipments.

The subsistence prime vendor program uses a contractual arrangement with commercial vendors to supply a wide

range of commercial off-the-shelf material directly to military customers on a just-in-time basis. The distributor of a

commercial product line provides it to all of DLA’s customers in an assigned region within a specified period of time

after an order is placed. A list of DLA Subsistence Prime Vendors can be accessed at http://www.dla.mil/

TroopSupport/Subsistence/FoodServices/pvlist.aspx. The system relies on an electronic order and receipt system in

place of DOD’s former system of maintaining inventories at supply depots.

“Rankings of Leading Suppliers,” Government Food Service, September 2016, p. 18, http://www.ebmpubs.com/

GFS_pdfs/gfs0916_TopSuppliers.pdf.

Congressional Research Service

Protecting U.S. Manufacturing Through the Berry and Kissell Amendments

Meals ready-to-eat (MREs) are a major share of food sourced for DOD under the Berry

Amendment.51 AmeriQual, SoPakCo, and Wornick are the three main companies that supply

MREs to the military, with DOD sales of more than $300 million in FY2016. Combined, the three

companies employ more than 1,600 people.52 For AmeriQual, sales of MREs to the U.S. military

account for approximately 85% of revenue.53

Under Berry Amendment requirements, DOD, with certain exceptions, must purchase food and

ration kits for the military services from sources that manufacture, grow, or process food in the

United States. Meeting this standard is generally easier with food than other manufactured

products because there is a large domestic agricultural sector that supplies the overwhelming

majority of food purchased by U.S. consumers. The food industry’s output contains a larger share

of domestic content than the output of any other manufacturing industry.54

Affecting the purchase of food under the Berry Amendment are certain distinctions between food

types and considerations of where the food was grown, caught, and/or harvested.55 For example,

DOD interprets the Berry Amendment to provide that if a food item is processed in the United

States, it may contain food grown or harvested in other countries. Thus, DOD may buy corn

canned in the United States even if the corn was grown abroad. The same logic applies to many

other items, such as potato chips, boxed cereals, and juices; as long as these items are processed

in the United States, they are deemed compliant with the Berry Amendment.

The Federal Acquisition Regulations provide exemptions for a list of items that are generally not

available from U.S. growers, such as bananas, capers, cashew nuts, coffee, cocoa beans, olive oil,

bulk spices and herbs, raw sugar, tea in bulk, and vanilla beans.56 In addition, in 2008, the Under

Secretary of Defense for Acquisitions, Technology, and Logistics issued a Domestic NonAvailability Determination affecting seasonal fresh fruits and vegetables, which allows DOD to

purchase fruits and vegetables from foreign producers during off-season.57 Previous Congresses

have considered amending the Berry Amendment to permit the purchase of fresh fruits and

vegetables from all sources.58

The most restrictive food-related provisions in the Berry Amendment pertain to fish, shellfish,

and seafood. These food items must be taken from the sea in U.S.-flag vessels or caught in U.S.

waters, and must be processed in the United States or on a U.S.-flag ship. The rule applies to both

MREs are the individual rations bought by the U.S. military for service members to use in the field, when conditions

for full food service are not possible. Each MRE contains an entrée/starch, crackers with a spread, a dessert or snack

and beverages, along with accessories and utensils. MREs are designed to provide sustenance in a convenient package,

and there are dozens of MRE menus, including kosher and vegetarian options.

PrivCo reports for AmericQual, SoPaKco, and Womick viewed on April 14, 2017. PrivCo provides financial data on

major privately held companies.

See PrivCo’s report on AmericaQual Group, LLC.

Ryan Noonan and Jane Callen, Made in America: Food, Beverages, and Tobacco Products, U.S. Department of

Commerce Economics and Statistics Administration, 2013, p. 5, http://www.esa.doc.gov/sites/default/files/

foodbeveragetobaccoindustryprofile_1.pdf.

Information is based on an April 10, 2017, email exchange between CRS and DOD’s Office of Acquisition,

Technology, and Logistics (AT&L).

FAR, Part 25.104—nonavailable articles, http://farsite.hill.af.mil/reghtml/regs/far2afmcfars/fardfars/far/

25.htm#P243_24138.

See DLA Amendment of Solicitation/Modification of Contract, http://www.dla.mil/Portals/104/Documents/

TroopSupport/Subsistence/Food%20Services/Regions/East/PV/04D3057-P23.pdf.

Seventh Package of Legislative Proposals Sent to Congress for Inclusion in the National Defense Authorization Act

for FY2009, sent to Congress on May 28, 2008, http://ogc.osd.mil/olc/docs/28May2008Package.pdf.

Congressional Research Service

Protecting U.S. Manufacturing Through the Berry and Kissell Amendments

fresh and frozen products whether sold whole, in parts, or as fillets.59 American Samoa’s tuna

fishing and processing industry, which comprises the majority of private-sector employment in

this unincorporated territory of the United States, has benefited from the domestic preference

provisions for food items in the Berry Amendment.60 In recent years, however, tuna companies,

such as Chicken of the Sea, have eliminated or cut back operations in American Samoa,

reportedly due to an increase in the minimum wage there.61

Food procurement for places such as Iraq and Afghanistan has been excluded from the Berry

Amendment due to operational considerations,62 but most nonperishable food is still acquired

from U.S. manufacturers.63 Food sold in military commissaries and post exchanges is explicitly

excluded from the Berry Amendment requirements by law.64

Hand or Measuring Tools

Hand or measuring tools such as chisels, files, hammers, pliers, screwdrivers, calipers, and

micrometers are specifically indicated as products covered by the Berry Amendment. The

amendment requires each individual tool or all the tools within tool sets or kits purchased by

DOD be wholly produced in the United States, unless exemptions laid out in the law apply. A

hand or measuring tool is defined as wholly U.S.-made if it is assembled in the United States out

of components, or otherwise made from raw materials into the finished product. For example,

DOD is generally prohibited from buying a wrench not forged in the United States.65 The Kissell

Amendment contains no provision related to hand or measuring tools.

Assuring compliance with the Berry mandate may be complicated, as some sets or kits may

consist of thousands of tools. Domestic supply of certain hand or measuring tools may be very

limited; according to one estimate, in 2016, imports of hand tools accounted for more than 40%

of domestic demand.66 Suppliers to DOD must provide assurance that all items in a tool or

measuring set or kit are compliant with the Berry Amendment.

Hand or measuring tools account for a relatively small share of DOD’s total Berry-applicable

contract procurement obligations, worth about $100 million in FY2016. Leading distributors and

See §8118 of the 2005 DOD Appropriations Act (P.L. 108-287).

StarKist, owned by Del Monte Foods, operates a tuna cannery in American Samoa, qualifying its products as Berry

Amendment-compliant. In 2016, Tri Marine, the only other tuna canning factory in the territory, announced it would

indefinitely suspend its operations there. For more information about American Samoa’s tuna industry, see Arielle

Levine and Stewart Allen, American Samoa as a Fishing Community, National Oceanic and Atmospheric

Administration, NMFS-PIFSC-19, July 2009, pp. 17-20, https://www.pifsc.noaa.gov/tech/

NOAA_Tech_Memo_PIFSC_19.pdf.

“Tuna Cannery in American Samoa to Halt Production,” Honolulu Star Advertiser, October 13, 2016.

Exception is established in DFARS, 225.7002-2, http://www.acq.osd.mil/dpap/dars/dfars/html/current/

225_70.htm#225.7002-2.

Madeleine Pullman and Zhaohui Wu, Food Supply Chain Management: Economic, Social and Environmental

Perspectives (Routledge, 2012), p. 170.

10 U.S.C. §2533a(g) grants a blanket exemption to military commissaries, exchanges, and other nonappropriated

fund instrumentalities operated by the Department of Defense.

If a hand or measuring tool was assembled in a foreign country, then disassembled and reassembled in the United

States, it does not qualify as U.S.-made. There are no explicit restrictions on the source of the components in the hand

or measuring tools, unlike the restrictions on textile and apparel components or food inputs discussed previously.

Rory Masterson, Hand Tool Manufacturing in the U.S., IBISWorld, Industry Report OD5929, June 2016, p. 12.

Congressional Research Service

Protecting U.S. Manufacturing Through the Berry and Kissell Amendments

manufacturers of hand or measuring tools and equipment to DOD are Federal Resources

Supply,67 Snap-On,68 and Kipper Tool.69

Because commercial demand for hand or measuring tools far outweighs sales to DOD, the law

seemingly does little to encourage manufacturers to produce or assemble tools in the United

States, or to move the manufacture of tools produced in a foreign country to the United States.

According to the federal government, cutlery and hand tool shipments totaled $10.3 billion in

2015,70 implying that sales to DOD under the Berry Amendment accounted for about 1% of

shipments. Thus Berry Amendment purchases may be responsible for roughly 380 of the 38,000

jobs in cutlery and hand tool manufacturing.71

Allowable exceptions to the Berry Amendment include a nonavailability waiver if hand or

measuring tools are not available domestically. This waiver became a requirement as part of the

FY2011 Defense Authorization Act (P.L. 111-383).72

Congressional Debate

Proponents of the Berry and Kissell Amendments assert that the laws serve to keep certain U.S.

production lines operating. They argue that the U.S. military should not be dependent on foreign

sources for critical items, including those covered by the Berry and Kissell Amendments, and that

dependence on foreign sources for military and national security items could lead to supply

problems during times of war or military mobilization.

Critics of the amendments point out that the laws may raise procurement costs and lengthen

delivery times by requiring the purchase of domestic products when less expensive imports are

available. They claim that the amendments are inconsistent with modern practices in

manufacturing, which often involve supply chains that source components and raw materials

from multiple countries, and that domestic purchase requirements may alienate foreign trading

partners, thereby potentially provoking retaliation and harming foreign sales.

This controversy notwithstanding, Congress has not considered repeal of the Berry or Kissell

Amendments. Legislative action has centered on the scope of the amendments, the requirements

for obtaining waivers, and the use of audits to determine the laws’ effectiveness.

Federal Resources Supply, a private company based in Maryland, is a distributor of sets, kits, and outfits of hand

tools. See http://www.federalresources.com/.

See Snap-On, 2016 Annual 10-K Report, p. 20, for an overview of the company’s worldwide manufacturing

facilities, located in several U.S. states, including Alabama, Arkansas, Tennessee, and Wisconsin, as well as foreign

manufacturing locations, including Argentina, Belarus, China, Hungary, and Sweden.

Kipper Tool, a distributor of hand and measuring tool systems, sets, and kits, sells its products to the military,

industry, and other customers. For more information about Kipper Tool, a privately held company headquartered in

Georgia, see http://www.kippertool.com/.

Shipments data from U.S. Census Bureau, 2015 Annual Survey of Manufacturers, Cutlery and Hand Tools, NACIS

33221, accessed May 3, 2017, https://www.census.gov/data/tables/2015/econ/asm/2015-asm.html.

Employment and wage data compiled from Bureau of Labor Statistics, Quarterly Census of Employment and Wages,

accessed April 2017. Hand tool manufacturing data is included in NAICS code 33221.

Department of Defense, “Defense Federal Acquisition Regulation Supplement; Nonavailability Exception for

Procurement of Hand or Measuring Tools (DFARS Case 2011-D025),” 76 Federal Register 52132-52133, August 19,

2011.

Congressional Research Service

Protecting U.S. Manufacturing Through the Berry and Kissell Amendments

Changes in Scope

There have been attempts over the years to reduce the scope of the Berry Amendment. For

example, lawmakers have offered bills that would have eliminated FPI/UNICOR’s federal

contract mandate and made changes to the Simplified Acquisition Threshold, such as raising the

Berry and Kissell thresholds to $500,000. The higher limit would reduce the number of purchases

covered by the Berry and Kissell Amendments, making foreign suppliers eligible to bid on more

DOD and DHS procurement contracts. None of these proposals has passed.

In recent Congresses, lawmakers have introduced bills that would have widened the scope of

these domestic preference laws. For instance, in the 115th Congress, the Homeland Production

Security Act, H.R. 1811, would amend the American Recovery and Reinvestment Act of 2009

(P.L. 111-5) to prohibit the use of funds appropriated to DHS for the procurement of uniforms not

manufactured in the United States. Such a change would expand the Kissell Amendment to the

Customs and Border Patrol, the Secret Service, and Federal Emergency Management Agency

(FEMA) of DHS.

Waiver Requirements

According to DLA Troop Support, more than a dozen domestic nonavailability determinations

were approved between 2005 and 2015 (see Appendix B for more information about selected

determinations). These waivers of Berry Act requirements generally apply only for a specific time

period. In some cases, waivers remain in force until a domestic source or a substitute material can

be found.

On April 18, 2017, President Donald Trump issued an executive order directing executive branch

agencies “to maximize, consistent with law ... the use of goods, products, and materials produced

in the United States” and directing them to “minimize the use of waivers, consistent with

applicable law.”73 An explicit reference to the Berry Amendment was mentioned in a White

House background briefing on the executive order.74 It is unclear how the executive order will

affect DOD and DHS interpretations of waiver requirements under the Berry and Kissell

Amendments, respectively.

Audits

Pursuant to the FY2014 National Defense Authorization Act (P.L. 113-66), Congress directed

DOD’s Office of Inspector General to conduct periodic audits to ensure compliance by the

military services with the Berry Amendment and the Buy American Act.75 Three recent audits

found the Navy fully complied with the Berry law in 12 of 23 contracts, the Air Force in 15 of 21

contracts, and the Army in 29 of 33 contracts.76 In addition, Senator Christopher Murphy has

“Presidential Executive Order on Buy American and Hire American,” April 18, 2017.

The White House, “Background Briefing on Buy American, Hire American Executive Order,” press release, April

17, 2017, https://www.whitehouse.gov/the-press-office/2017/04/17/background-briefing-buy-american-hire-americanexecutive-order.

Section 1601 of P.L. 113-66 calls for the Department of Defense Inspector General to periodically audit contracting

practices and policies to determine whether the military services are complying with the Berry Amendment and the

Buy American Act. See Legislative Text and Joint Explanatory Statement to accompany H.R. 3304 (Committee Print),

Title XVI, Industrial Base Matters, Subtitle A, p. 698.

DOD Office of Inspector General, Army Personnel Compiled with the Berry Amendment But Can Improved

Compliance with the Buy American Act, DODIG-2015-206, November 11, 2014. See also DODIG-2015-161 for the

(continued...)

Congressional Research Service

Protecting U.S. Manufacturing Through the Berry and Kissell Amendments

requested the Government Accountability Office (GAO) to investigate U.S. government

compliance with the Berry Amendment and the Buy American Act.77 The committee report on the

Senate-reported 2016 DHS appropriations bill (S. 1619) requested that GAO audit DHS’s

compliance with the Kissell Amendment.78 This legislation was incorporated in the Consolidated

Appropriations Act, 2016 (P.L. 114-113).79 GAO expects to complete its study in 2017.80

(...continued)

Department of Navy’s compliance record, August 12, 2015, and DODIG-2016-051 for compliance by the Air Force,

February 24, 2016. All three reports can be found at http://www.dodig.mil/pubs/index.cfm.

Sen. Christopher Murphy, “Murphy Calls on GAO to Investigate U.S. Government Compliance with ‘Buy

American’ Laws,” press release, March 31, 2017, https://www.murphy.senate.gov/newsroom/press-releases/murphycalls-on-gao-to-investigate-us-government-compliance-with-buy-american-laws.

U.S. Congress, Senate Committee on Appropriations, Subcommittee on Department of Homeland Security,

Department of Homeland Security Appropriations Bill, 2016, committee print, 114th Cong., 1st sess., June 18, 2015,

114-68, pp. 16-17.

Division F of P.L. 114-68 was the Department of Homeland Security Appropriations Act, 2016.

Information based on a March 16, 2017 email exchange with GAO.

Congressional Research Service

Protecting U.S. Manufacturing Through the Berry and Kissell Amendments

Appendix A. Comparison of Berry Amendment,

Kissell Amendment, and Buy American Act

Berry Amendmenta

Kissell Amendmenta

Buy American Act

Where It Applies

DOD

DHSb

Government-wide

Covered Items

Primarily Federal Supply

Groups (FSG) 51, 52,

83, 84, and 89c

FSG 83 and 84

Specified in amendment

Thresholds

Greater than the

simplified acquisition

threshold ($150,000)

Greater than the simplified

acquisition threshold

($150,000)

Greater than micropurchase threshold ($3,000)

Domestic Content

100%

Must exceed 50%

Applicable Defense Federal

Acquisition Regulations

Supplement (DFARS) or

Department of Homeland

Security Acquisition

Regulation (HSAR)

DFARS 252.225-7012,

252.225-7015

HSAR 3025 and 3052

Policy outlined in Federal

Acquisition Regulations

(FAR); certain exceptions

are outlined in DFARS

252.225-7001, 252.2257002, 252.225-7035 (Part

25.102)

Place of Manufacture

United States

United Statesd

United Statese

Where Item Will Be Used

Anywhere

United Statesf

Contractor Certification

Yes

Source: CRS, adapted from DOD Office of Inspector General, Army Personnel Complied with the Berry

Amendment But Can Improve Compliance with the Buy American Act, Report No. DODIG-2-15-026, November 2,

2014, p. 2.

a. The Berry and Kissell Amendments apply to end items and components. Components are articles,

materials, or supplies incorporated directly into an end item.

b. Applies only to the Transportation Security Administration and the Coast Guard.

c. Federal Supply Groups (FSG): 51-hand tools; 52-measuring tools; 83-textiles, leather, furs, apparel and shoe

findings, tents and flags; 84-clothing, individual equipment, and insignia; and 89-subsistence (food).

d. Because of various free-trade agreements, manufacturers in Mexico, Canada, and Chile are treated as

American sources.

e. The Buy American Act applies unless a waiver is granted or an exception applies.

The Buy American Act does not apply to the purchase of items whose intended use is outside of the United

States.

Congressional Research Service

Protecting U.S. Manufacturing Through the Berry and Kissell Amendments

Appendix B. Selected Berry Amendment Domestic

Nonavailability Waivers (DNAD) Since 2005

DNAD

Date

Approved

Effective Period

Status

Steel toe caps

End item:

Navy safety boot

4/17/2006

Effective until conditions stated within the DNAD

are met (i.e., a domestic source or substitute

material can be found).

No longer in effect. As of

2007, a domestic source

became available.

Ethyl vinyl acetate for

midsoles and

nonmarking solid

rubber for outsoles

End Item:

Air Force running

shoes

7/16/2006

Effective until conditions stated within the DNAD

are met (i.e., a domestic source or substitute

material can be found).

No longer in effect.

DNAD cancelled on

April 24, 2011, when

Defense Logistics Agency

determined that the Air

Force no longer

demanded running shoes

containing this

component.

Fresh fruits and

vegetables

5/16/2008

Effective until domestic products of satisfactory

quality and sufficient quantity can be procured as

needed at U.S. market prices.

Active DNAD

Acrylic staple fiber

End item:

Acrylic fiber sandbags

10/30/2008

Effective until conditions stated within the DNAD

are met (i.e., a domestic source or substitute

material can be found).

Active DNAD

Snap fastener

End item:

Marine Corps men’s

dress green coat belt

12/3/2008

Effective until conditions stated within the DNAD

are met (i.e., a domestic source or substitute

material can be found).

Active DNAD

Chemical and oil

protective nitrile

gloves

12/8/2008

Effective until conditions stated within the DNAD

are met (i.e., a domestic source or substitute

material can be found).

Active DNAD

70 filament/68 denier

(70/68 FD) nylon

partially oriented

yarn (POY)

End item:

U.S. Air Force All

Purpose

Environmental

Clothing System

Parka and Trousers

under contract

SPM1C1-08-D-1041

7/10/2010

One-time retroactive DNAD applicable to yarn

produced by Invista from September 2008 to April

2009, used in Air Force products delivered or in

process under contract SPM1C1-08-D-1041 only.

No longer in effect.

Congressional Research Service

Protecting U.S. Manufacturing Through the Berry and Kissell Amendments

DNAD

Date

Approved

Effective Period

Status

70 filament/68 denier

(70/68 FD) nylon

partially oriented

yarn (POY)

End item:

U.S. Marine Corps

All Purpose

Environmental

Clothing System

Parka and Trousers

under contract

SP0100-06-D-4062

11/9/2011

One-time retroactive DNAD applicable to yarn

produced by Invista from September 2008 to April

2009, used in Marine Corps products delivered or

in process under contract SPM1C1-06-D-4062

only.

No longer in effect.

CR/CR2 8TZ zipper

components

End item:

Anti-exposure

coveralls

12/22/2011

Effective until conditions stated within the DNAD

are met (i.e., a domestic source or substitute

material can be found).

Active DNAD

Personal protective

equipment

impermeable aprons

11/24/2014

DNAD remains in effect for a period not to

exceed one year after the date of approval.

No longer in effect.

Chest piece material

components (padding

and haircloth)

End item:

U.S. Army men’s and

women’s dress coats

12/22/2014

Retroactive approval for the chest piece padding

and haircloth components already delivered under

contracts and orders supplying the Army dress

coats during the periods from October 2007 to

January 2008 for the padding material and October

2007 to September 2009 for the haircloth material.

No longer in effect.

Source: DLA provided DNAD waiver list to CRS by email on April 19, 2017.

Author Contact Information

(name redacted)

Specialist in Industrial Organization and Business

r[ edacted]@crs.loc.gov , 7-....

Acknowledgments

The author thanks Amber Wilhelm, Visual Information Specialist, for this report’s figures and graphics and

appreciates the assistance of Gabriel Nelson, former CRS Research Assistant, and Heidi Peters, Research

Librarian.

Congressional Research Service

EveryCRSReport.com

The Congressional Research Service (CRS) is a federal legislative branch agency, housed inside the

Library of Congress, charged with providing the United States Congress non-partisan advice on

issues that may come before Congress.

EveryCRSReport.com republishes CRS reports that are available to all Congressional staff. The

reports are not classified, and Members of Congress routinely make individual reports available to

the public.

Prior to our republication, we redacted names, phone numbers and email addresses of analysts

who produced the reports. We also added this page to the report. We have not intentionally made

any other changes to any report published on EveryCRSReport.com.

CRS reports, as a work of the United States government, are not subject to copyright protection in

the United States. Any CRS report may be reproduced and distributed in its entirety without

permission from CRS. However, as a CRS report may include copyrighted images or material from a

third party, you may need to obtain permission of the copyright holder if you wish to copy or

otherwise use copyrighted material.

Information in a CRS report should not be relied upon for purposes other than public

understanding of information that has been provided by CRS to members of Congress in

connection with CRS' institutional role.

EveryCRSReport.com is not a government website and is not affiliated with CRS. We do not claim

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.