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1 1 (January 13, 2021)

handle is hein.crs/govebqi0001 and id is 1 raw text is: ressional Research Servn~e Ln& rrrdri~j thL I d~v lob W 1)14 UpdatedJanuary 13, 2021 Defense Primer: The Berry and Kissel Amendments Two U.S. laws require the Departmentof Defense (DOD) and some agencies of the Department of Homeland Security (DHS) to purchase only domestic products for certain military and nonmilitary purposes. These laws are known as the Berry Amendment and the Kissell Amendment. Congress typically debates the Berry Amendment in the context of the annual National Defense Authorization Act. The laws are controversial. Supporters argue they help preservethe U.S. industrialbase andcreate domestic manufacturing jobs. Some lawmakers also assert that production of government uniforms outside the United States raises nationalsecurity concerns. Opponents believe the laws give monopolies to certain companies andraise the government's procurementcosts. They also claimthese laws are inconsistent with modern supply chains that source components and raw materials frommultiple countries. The Berry Amendment The Berry Amendment (10 U.S.C. §2533a) is the popular name of a 1941 law enacted as part of the Fifth Supplemental National Defense Appropriations Act (P.L. 77-29). It became a permanent part of the U.S. Code when it was codified by the FY2002 NationalDefense Authorization Act (NDAA; P.L. 107-107). The Berry Amendment requires certain items purchased by DOD to be 100% domestic in origin. The requirement generally extends to inputs into thepurchaseditems. The items covered by the law have varied over the years. The law affects DOD purchases of textiles, clothing, footwear, food, and hand or measuring tools. Recently, Congress reinstated stainless-steel flatware and addeddinnerware as additional covered items. DOD purchases of these items must be entirely grown, reprocessed, reused, or produced in the United States. Unless exemptions in the law apply, the entire production process of affected products, fromthe production ofraw materials to the manufacture of all components to fmal as s embly, mus t be performed in the United States. The Berry Amendment mandates a much higher level of domestic content than theBuy American Act of 1933, which generally governs theprocurements ofother federal agencies. Under the Buy American Act, the final product must be mined, produced, ormanufacturedin the United States, and if manufactured, either at least 50% of the costs of its components mustbe manufactured in the United States, or the end product must be a commercially available off-the-shelf item. Total s ales to DOD in the five Berry -applicable product categories came to around $4.0 billion in FY2020. DOD expenditures on Berry Amendment products accounted for around 1% ofthe department's spending on products and services in FY2020, according to figures fromthe Federal Procurement Data System-Next Generation, theprimary source for federal procurement data, as reported through the SystemforAward Management (beta.SAM.gov) database. The KisseD Amendment The Kissell Amendment (6 U.S.C. § 453b) was enacted as Section 604 of the American Recovery and Reinvestment Act of 2009 (P.L. 111-5) and, through the Homeland Security Acquisition Regulation, made permanenton March 5, 2013. Kis sellrequirements are modeled on the Berry Amendment. Since August 2009, the Kis sell Amendment has required DHS when using appropriated funds directly related to nationalsecurity interests, to buy textiles, clothing, and footwear, fromdomes tic sources. Excluded are food, hand or measuring tools, and flatware and dinnerware. Although the Kis sell Amendment as enacted applies to all agencies of DHS, in practice its restrictions apply only to the Transportation Security Administration (TSA). This is because, prior to the Kis sell Amendment's passage, the United States had enteredinto commitments under the World Trade Organization Agreement on Government Procurement, and under various free -trade agreements, to open U.S. government procurement to imported goods. The Kis sell Amendment applies only where it does not contravene those commitments. Procurement by other DHS agencies, including the Secret Service, Immigration and Customs Enforcement, and Customs and Border Protection, is subject to the less- stringent Buy American Act. For these DHS agencies, the Buy American Act is also waivedpursuant to the Trade Agreements Act (P.L. 96-39). Thus, they can purchase textile and apparelproducts frommore than 100 countries if certain conditions are met. Over halfof DHS's uniform items came from foreign sources in FY2019, according to a 2020 report by the Department of Homeland Security. Berry and Kissell Exceptions The Berry Amendment includes various exceptions. For example, DOD can buy fromnon-U.S. sources when products are unavailable fromAmerican manufacturers at satisfactory quality and sufficient quantity at U.S. market prices; items are used in support of combat operations or contingency operations; products are intended for res ale at retail stores such as military commissaries or post exchanges; and purchases are part of a contract whose value is at or below the Simplified Acquisition Threshold, generally $250,000, in which case the itemcan be sourced overseas. (The FY2018 NDAA (P.L. 115-91) raised the threshold from$150,000; the FY2021 NDAA (P.L. 116- 283) returned it to $150,000 for Berry -compliant purchases.) The KissellAmendmenthas some similar exceptions. Manufacturing Affected by Berry A majority of DOD's procurement contract obligations for Berry-applicable items are related to food and apparel, https://crsrepr 9

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