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

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URL: https://www.frixlaw.com/law-library/documents/crs%3AR44850

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** May 18, 2017
- **Citation:** R44850

## 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.

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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

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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

1

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.
2
Some say the Berry Amendment was named for George Leonard Berry, a Democrat from Tennessee, although this is
unconfirmed.
3
DFARS, Part 225.7002, http://www.acq.osd.mil/dpap/dars/dfars/html/current/252225.htm#252.225-7002.

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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

4

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.
5
Information is based on a May 2, 2017, email exchange between CRS and the Department of Commerce’s Office of
Textiles and Apparel.
6
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.
7
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.
8
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.
9
See Congressional Record, vol. 155, part 1 (January 28, 2009), pp. H723-H724.

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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

10

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.
11
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.

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

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)
12
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.
13
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).
14
See HSAR 3025.7001(3), https://www.dhs.gov/sites/default/files/publications/CPO_HSAR_1_0.pdf.
15
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/.

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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.
16

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.
17
Pat Host, “FY ‘17 Defense Spending Slams F-35 Program; Air Force, Navy Programs Get Boosts,” Defense Daily,
March 2, 2017.
18
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/.
19
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...)

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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.
20
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/.
21
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.
22
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.
23
Ceradyne, a domestic supplier of body armor, is now part of the 3M Company’s Energy and Advanced Materials
Division.

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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,

24

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.
25
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.
26
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.
27
For a map and list of UNICOR’s factory locations, see https://www.bop.gov/inmates/custody_and_care/
unicor_about.jsp.
28
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.
29
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.
30
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).

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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.

31

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)
.
32
“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/.
33
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.
34
See National Defense Authorization Act for FY2012 (P.L. 112-81), §822.
35
Kevlar is one of the best-known brand names for aramid fiber materials. Aramid is shorthand for the scientific name
aromatic polyamide.
36
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.
37
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.

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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
38

“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.
39
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.
40
Footwear Distributors and Retailers of America (FDRA), “Footwear Customs,” http://fdra.org/key-issues-and(continued...)

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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/.
41
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.
42
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.
43
The footwear provision was enacted as Section 817 of P.L. 114-328.
44
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/.
45
New Balance, Made in USA Sneakers, http://www.newbalance.com/made-in-us-and-uk/.
46
Adidas, “Adidas Will Open Atlanta-Based Facility to Make Shoes in America,” press release, August 10, 2016.

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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.

47

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.
48
CRS, with data from the Census Bureau, Manufacturers’ Shipments, Inventories, and Orders for food shipments.
49
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.
50
“Rankings of Leading Suppliers,” Government Food Service, September 2016, p. 18, http://www.ebmpubs.com/
GFS_pdfs/gfs0916_TopSuppliers.pdf.

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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
51

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.
52
PrivCo reports for AmericQual, SoPaKco, and Womick viewed on April 14, 2017. PrivCo provides financial data on
major privately held companies.
53
See PrivCo’s report on AmericaQual Group, LLC.
54
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.
55
Information is based on an April 10, 2017, email exchange between CRS and DOD’s Office of Acquisition,
Technology, and Logistics (AT&L).
56
FAR, Part 25.104—nonavailable articles, http://farsite.hill.af.mil/reghtml/regs/far2afmcfars/fardfars/far/
25.htm#P243_24138.
57
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.
58
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.

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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

59

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.
61
“Tuna Cannery in American Samoa to Halt Production,” Honolulu Star Advertiser, October 13, 2016.
62
Exception is established in DFARS, 225.7002-2, http://www.acq.osd.mil/dpap/dars/dfars/html/current/
225_70.htm#225.7002-2.
63
Madeleine Pullman and Zhaohui Wu, Food Supply Chain Management: Economic, Social and Environmental
Perspectives (Routledge, 2012), p. 170.
64
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.
65
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.
66
Rory Masterson, Hand Tool Manufacturing in the U.S., IBISWorld, Industry Report OD5929, June 2016, p. 12.
60

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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.

67

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/.
68
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.
69
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/.
70
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.
71
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.
72
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.

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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
73

“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.
75
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.
76
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...)
74

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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.
77
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.
78
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.
79
Division F of P.L. 114-68 was the Department of Homeland Security Appropriations Act, 2016.
80
Information based on a March 16, 2017 email exchange with GAO.

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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%

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

Anywhere

United Statesf

Contractor Certification

No

No

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

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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.

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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

19

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR44850. Public record. Not legal advice.