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1 1 (January 20, 2023)

handle is hein.crs/govekhx0001 and id is 1 raw text is: Con gressiona Re earch Service Informing the legislitive diebate since 1914 Updated January 20, 2023 Defense Primer: The Berry and Kissell Amendments Two U.S. laws-known as the Berry and Kissell Amendments-require that certain products purchased by the Department of Defense (DOD) and some agencies of the Department of Homeland Security (DHS) be manufactured and wholly produced within the United States. Congress typically debates the Berry Amendment in the context of annual National Defense Authorization Act (NDAA) legislation. The laws are controversial. Supporters assert they help preserve the U.S. industrial base and sustain domestic manufacturing employment. Some lawmakers also assert that production of products such as government uniforms outside the United States raises national security concerns. Opponents contend the laws guarantee demand to certain companies and raise the government's procurement costs. They also claim these laws are inconsistent with modern supply chains that source components and raw materials from multiple countries. The Berry Amendment The Berry Amendment, named after its sponsor, Representative Ellis Yarnal Berry, first appeared in the Fifth Supplemental National Defense Appropriations Act of 1941 (P.L. 77-29). It became permanent law through the FY2002 NDAA (P.L. 107-107) and is codified at 10 U.S.C. §4862 and implemented through the Defense Federal Acquisition Regulation Supplement. The Berry Amendment requires certain items purchased by DOD to be 100% domestic in origin. The items covered by the law have varied over the years; currently, the Berry Amendment applies to DOD purchases of textiles, clothing, footwear, food, hand or measuring tools, stainless steel flatware, and dinnerware. 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 covered products, from the production of raw materials, to the manufacture of all components, to final assembly, must be performed in the United States. The Berry Amendment mandates a higher level of domestic content than the Buy American Act of 1933 (41 U.S.C. §§8301-8303), which applies to most direct procurement of other federal agencies. Under the Buy American Act, the procured product must be mined, produced, or manufactured in the United States. If manufactured, either at least 60% of the costs of its components must be manufactured in the United States, or the product must be a commercially available off-the-shelf item. In FY2021, purchases by DOD of Berry-applicable products amounted to approximately $5.3 billion, according to figures from the Federal Procurement Data System-Next Generation (FPDS-NG), the primary source for federal procurement data, as reported through the System for Award Management (SAM.gov) database. DOD expenditures on Berry-related goods accounted for slightly more than 1% of the department's total spending on products and services in FY2021. The KisseD_ Amendment The Kissell Amendment, named after its sponsor, Representative Larry Kissell, was enacted as Section 604 of the American Recovery and Reinvestment Act of 2009 (P.L. 111-5) and is codified at 6 U.S.C. §453b. On March 5, 2013, amendments to the Homeland Security Acquisition Regulation implemented the Kissell Amendment requirements for DHS procurement. Kissell requirements are modeled on the Berry Amendment. Since August 2009, the Kissell Amendment has required DHS, when using appropriated funds directly related to national security interests, to buy textiles, clothing, and footwear from domestic sources. Excluded are food, hand or measuring tools, and flatware and dinnerware. Although the Kissell Amendment as enacted applies to all agencies of DHS, in practice its restrictions apply only to the Transportation Security Administration (TSA). Prior to the Kissell Amendment's enactment, the United States had entered into commitments under the World Trade Organization Agreement on Government Procurement (WTO GPA), and under various free trade agreements, to open U.S. government procurement to imported goods. The Kissell Amendment applies only where it does not contravene those commitments. Procurement by other DHS agencies, such as Customs and Border Protection or Immigration and Customs Enforcement, is subject to the Buy American Act. However, for these DHS agencies, the Buy American Act can, in certain circumstances, be waived pursuant to the Trade Agreements Act of 1979 (19 U.S.C. §§2501-2581). Thus, DHS agencies can purchase textile and apparel products from more than 100 countries provided certain conditions are met. Berry and Kissell Exceptions The Berry Amendment includes various exceptions. DOD, for example, can buy from non-U.S. sources when: products are unavailable from American 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 resale 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 ($250,000). 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 Kissell Amendment has some similar exceptions. Manufacturin Affected b Ber DOD's annual purchases for Berry-applicable products are predominantly concentrated in food and apparel. In

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