Updated December 18, 2018
Defense Primer: The Berry and Kissell Amendments
Two U.S. laws require the Department of Defense (DOD)
Department of Homeland Security from using appropriated
and some agencies of the Department of Homeland Security
funds to buy foreign-made textiles, clothing, and footwear.
(DHS) to purchase only domestic products for certain
Food, hand tools, and measuring tools are excluded.
military and nonmilitary purposes. These laws are known as
Although the Kissell Amendment as enacted applies to all
the Berry Amendment and the Kissell Amendment.
agencies of DHS, in practice its restrictions apply only to
Congress typically debates the Berry Amendment in the
the Coast Guard and the Transportation Security
context of the annual National Defense Authorization Act.
Administration (TSA). The reason for this is that, prior to
The laws are controversial. Their supporters argue they help
the Kissell Amendment’s passage, the United States had
preserve the U.S. industrial base and create domestic
entered into commitments under the World Trade
manufacturing jobs. Opponents believe the laws give
Organization Agreement on Government Procurement, and
monopolies to certain companies and raise the
under various free-trade agreements, to open U.S.
government’s procurement costs.
government procurement to imported goods. The Kissell
Amendment applies only where it does not contravene
The Berry Amendment
those commitments.
The Berry Amendment (10 U.S.C. §2533a) is the popular
Procurement by other DHS agencies, including the Secret
name of a 1941 law enacted as part of the Fifth
Service and Customs and Border Protection, is subject to
Supplemental National Defense Appropriations Act (P.L.
the less-stringent Buy American Act. For these DHS
77-29). It became a permanent part of the U.S. Code when
agencies, the Buy American Act is also waived pursuant to
it was codified by the FY2002 National Defense
the Trade Agreements Act (P.L. 96-39). Thus, they can
Authorization Act (P.L. 107-107).
purchase textiles and apparel products from more than 100
The Berry Amendment requires certain items purchased by
countries if certain conditions are met.
DOD to be 100% domestic in origin. The requirement
generally extends to inputs into the purchased items. The
Exceptions
items covered by the law have varied over the years. At
The Berry Amendment includes various exceptions. For
present, the Berry Amendment affects DOD purchases of
example, DOD can buy from non-U.S. sources when
textiles, clothing, footwear, food, and hand and measuring
 products are unavailable from American manufacturers
tools. These must be “entirely grown, reprocessed, reused,
at satisfactory quality and sufficient quantity at U.S.
or produced in the United States.” Unless exemptions laid
market prices;
out in the law apply, the entire production process of
 items are used in support of combat operations or
affected products, from the production of raw materials to
contingency operations;
the manufacture of all components to final assembly, must
 products are intended for resale at retail stores such as
be performed in the United States.
military commissaries or post exchanges; and
The Berry Amendment mandates a much higher level of
 the purchase is part of a contract whose value is at or
domestic content than the Buy American Act of 1933,
below the Simplified Acquisition Threshold (SAT),
which generally governs the procurements of other federal
generally $150,000, in which case the item can be
agencies. Under the Buy American Act, the final product
sourced overseas.
must be mined, produced, or manufactured in the United
The Kissell Amendment has some similar exceptions, but
States, and if manufactured, either at least 50% of the costs
one notable difference. Manufacturers in Mexico, Canada,
of its components must be manufactured in the United
and Chile can be treated as “American” sources under
States, or the end product must be a commercially available
Kissell because of existing trade agreements.
off-the-shelf item.
Manufacturing Affected by Berry
Sales to DOD in the five Berry-applicable product
A majority of DOD’s procurement contract obligations for
categories totaled $3.1 billion in FY2018. DOD
Berry-applicable items are related to food and apparel,
expenditures on Berry Amendment products accounted for
roughly 1% of the department’s spending on products and
according to data from the FPDS-NG. Of all DOD’s
reported contracts for Berry-related items, roughly $1
services in FY2018, according to figures from the Federal
billion per year fall below the SAT, and are therefore not
Procurement Data System-Next Generation (FPDS-NG),
subject to Berry requirements.
the primary source for federal procurement data.
Food
The Kissell Amendment
The Berry Amendment requires DOD to purchase most
The Kissell Amendment (6 U.S.C. §453b) was enacted as
food for military services from sources that manufacture,
Section 604 of the American Recovery and Reinvestment
grow, or process food in the United States. DLA reported
Act of 2009 (P.L. 111-5). It is modeled on the Berry
about $1.2 billion in contract obligations in FY2018 to feed
Amendment. Since August 2009, it has prohibited the
U.S. troops worldwide, buying everything from meat and
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Defense Primer: The Berry and Kissell Amendments
seafood to snack foods and beverages. DLA’s leading food
Manufacturing Affected by Kissell
suppliers include Tyson Foods, Kraft Heinz, Trident
The Kissell Amendment is more limited than Berry because
Seafoods, Pepsico, and General Mills. The most restrictive
it applies only to textile, apparel, and footwear products. In
Berry-related provision applies to seafood; it requires that
FY2018, the Coast Guard and TSA combined purchased
DOD purchase only fish, shellfish, and seafood taken from
more than $30 million of apparel for Kissell-related items
the sea in U.S.-flagged vessels or caught in U.S. waters and
above the SAT. Purchases subject to the Berry and Kissell
processed in the United States or on a U.S.-flagged ship.
Amendments represented around 3% of the $65 billion of
Meals ready-to-eat (MREs) form a major part of DOD food
textile and apparel shipments from U.S. factories in 2017.
sourced under the Berry Amendment. AmeriQual,
Congressional Debate
SoPakCo, and Wornick are the largest suppliers of MREs.
Some Members of Congress have defended the Berry and
The DOD market for Berry-compliant MREs was roughly
Kissell Amendments as means of protecting U.S. jobs and
$900 million in FY2018.
ensuring continued DOD access to basic supplies should
Textiles, Apparel, and Footwear
wars or other events interfere with imports. Some
At nearly $1.9 billion in FY2018, DOD’s procurement of
lawmakers also have asserted that production of
clothing, textiles, and footwear made up a large share of
government uniforms outside the United States raises
DOD’s contract obligations subject to the Berry
national security concerns.
Amendment.
Critics argue the two amendments increase government
One of the largest military-apparel contractors is the
procurement costs and, by offering guaranteed markets,
Federal Prison Industries (FPI), also known as UNICOR,
may diminish domestic manufacturers’ incentives to
which supplies prison-manufactured apparel. DOD’s
improve productivity. They also point out the amendments
awarding of clothing contracts to this government-owned
are inconsistent with modern practices in manufacturing,
supplier has proven controversial in both Congress and the
which often involve supply chains that source components
apparel industry. Critics have voiced concern that prison
and raw materials from multiple countries.
industrial programs pose a threat to private enterprise and to
The Berry and Kissell Amendments raise several issues: If
the jobs of residents who are not incarcerated. Among other
the United States does not produce a solely domestic item,
issues, critics have challenged FPI/UNICOR’s mandatory
or if U.S. manufacturers are at maximum production
source provision, which could require DOD to purchase
capability, should DOD or DHS restrict procurement from
from FPI/UNICOR factories if they can provide the desired
foreign sources? And do U.S. national security interests and
product, within the required time frame, and at a
industrial base concerns justify these laws?
competitive price. In FY2018, DOD accounted for about
Over the years, changes have been proposed to the Berry
90% of FPI/UNICOR’s textile and apparel sales.
and Kissell Amendments. One recent proposal would have
Other large contractors of military apparel are the National
reinstated the Berry Amendment’s domestic sourcing
Industries for the Blind, M&M Manufacturing, Ceradyne,
requirement for stainless steel flatware. Another past
and American Apparel. Berry requires the manufacture of
proposal would have expanded the Kissell Amendment’s
DOD apparel in the United States, Puerto Rico, or other
domestic content requirements to additional agencies within
U.S. territories.
DHS. Other lawmakers have offered bills that would have
In the National Defense Authorization Act for Fiscal Year
eliminated FPI/UNICOR’s federal contract mandate and
2017 (P.L. 114-328), Congress extended the Berry
made changes to the SAT threshold, such as raising the
Amendment by requiring DOD to provide 100% U.S.-made
Berry and Kissell SAT thresholds to $500,000. The higher
running shoes for recruits entering basic training.
limit would reduce the number of purchases covered by the
Previously, DOD provided vouchers to recruits to purchase
Berry and Kissell amendments, making foreign suppliers
athletic footwear, which did not have to be domestic in
eligible to bid on more DOD and DHS procurement
origin. DLA estimates potential demand for as many as
contracts.
250,000 pairs of running shoes annually. The new
requirement took effect in March 2017.
Relevant Statutes
DOD’s direct purchases of footwear, such as combat boots
Title 10, U.S. Code, Section 2533a—Berry Amendment
and military dress shoes, in FY2018 totaled about $208
Title 6, U.S. Code, Section 453b—Kissell Amendment
million. Some manufacturers claim they have remained
viable because they make millions of pairs of shoes
annually for the military. While the United States is a major
CRS Product
manufacturer of safety footwear, about 99% of shoes sold
CRS Report R44850, Buying American: Protecting
domestically are imported.
U.S. Manufacturing Through the Berry and Kissell
Amendments, by Michaela D. Platzer
Hand or Measuring Tools
Hand or measuring tools make up a relatively small share of
DOD’s total Berry-applicable contract procurement

obligations, at about $90 million in FY2018. Leading
Michaela D. Platzer, Specialist in Industrial Organization
vendors are Federal Resources Supply and Kipper Tool.
and Business
IF10609

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Defense Primer: The Berry and Kissell Amendments



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