Updated December 20, 2018
Buying American: 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
The Berry Amendment
Amendment applies only where it does not contravene
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 be 100% domestic in origin. The requirement
Exceptions
generally extends to inputs into the purchased items. The
The Berry Amendment includes various exceptions. For
items covered by the law have varied over the years. At
example, DOD can buy from non-U.S. sources when
present, the Berry Amendment affects DOD purchases of
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
foods are generally not produced domestically, as is the
affected products, from the production of raw materials to
case with bananas, coffee, and many spices and herbs;
the manufacture of all components to final assembly, must
items are used in support of combat operations or
be performed in the United States.
contingency operations;
The Berry Amendment mandates a much higher level of
products are intended for resale at retail stores such as
domestic content than the Buy American Act of 1933,
military commissaries or post exchanges; and
which generally governs the procurements of other federal
agencies. Under the Buy American Act, the final product
the purchase is part of a contract whose value is below
must be mined, produced, or manufactured in the United
the Simplified Acquisition Threshold (SAT), generally
States, and if manufactured, either at least 50% of the costs
$150,000, in which case the item can be sourced
of its components must be manufactured in the United
overseas.
States or the end product must be a commercially available
The Kissell Amendment has some similar exceptions, but
off-the-shelf item.
one notable difference. Manufacturers in Mexico, Canada,
Sales to DOD in the five Berry-applicable product
and Chile can be treated as “American” sources under
categories totaled $3.1 billion in FY2018. DOD
Kissell because of existing trade agreements.
expenditures on Berry Amendment products accounted for
Manufacturing Affected by Berry
roughly 1% of the department’s spending on products and
Most of DOD’s procurement contract obligations for Berry
services in FY2018, according to figures from the Federal
-
Procurement Data System-Next Generation (FPDS-NG),
applicable items are related to food and apparel, according
the primary source for federal procurement data.
to data from the Federal Procurement Data System-Next
Generation. Of all DOD’s reported contracts for Berry-
The Kissell Amendment
related items, roughly $1 billion per year fall below the
SAT, and are therefore not subject to Berry requirements.
The Kissell Amendment (6 U.S.C. §453b) was enacted as
Section 604 of the American Recovery and Reinvestment
Food
Act of 2009 (P.L. 111-5). It is modeled on the Berry
The Berry Amendment requires DOD to purchase most
Amendment. Since August 2009, it has prohibited the
food for military services from sources that manufacture,
https://crsreports.congress.gov
Buying American: The Berry and Kissell Amendments
grow, or process food in the United States. DLA reported
obligations, at about $90 million in FY2018. Leading
about $1.2 billion in contract obligations in FY2018 to feed
vendors are Federal Resources Supply and Kipper Tool.
U.S. troops worldwide, buying everything from meat and
Manufacturing Affected by Kissell
seafood to snack foods and beverages. DLA’s leading food
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
textile and apparel shipments from U.S. factories in 2017.
Meals ready-to-eat (MREs) form a major part of DOD food
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 in the
Textiles, Apparel, and Footwear
event 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 for
the jobs of residents who are not incarcerated. Among other
Congress: If the United States does not produce a solely
issues, critics have challenged FPI/UNICOR’s mandatory
domestic item, or if U.S. manufacturers are at maximum
source provision, which could require DOD to purchase
production capability, should DOD or DHS restrict
from FPI/UNICOR factories if they can provide the desired
procurement from foreign sources? And to what extent do
product, within the required time frame, and at a
U.S. national security interests and industrial base concerns
competitive price. In FY2018, DOD accounted for about
justify these laws?
90% of FPI/UNICOR’s textile and apparel sales.
Legislation
Other large contractors of military apparel are the National
Over the years, changes have been proposed to the Berry
Industries for the Blind, M&M Manufacturing, Ceradyne,
and Kissell Amendments. One recent proposal would have
and American Apparel. The Berry Amendment requires the
reinstated the Berry Amendment’s domestic sourcing
manufacture of DOD apparel in the United States, Puerto
requirement for stainless steel flatware. Another would
Rico, or other U.S. territories.
have expanded the Kissell Amendment’s domestic content
In the National Defense Authorization Act for Fiscal Year
requirements to additional agencies within DHS. Other
2017 (P.L. 114-328), Congress extended the Berry
lawmakers have offered bills that would have eliminated
Amendment by requiring DOD to provide 100% U.S.-made
FPI/UNICOR’s federal contract mandate and made changes
running shoes for recruits entering basic training. Previously,
to the SAT threshold, such as raising the Berry and Kissell
DOD provided vouchers to recruits to purchase athletic
SAT thresholds to $500,000. The higher limit would reduce
footwear, which did not have to be domestic in origin. DLA
the number of purchases covered by the Berry and Kissell
estimates potential demand for as many as 250,000 pairs of
amendments, making foreign suppliers eligible to bid on
running shoes annually. The new requirement took effect in
more DOD and DHS procurement contracts.
March 2017.
DOD’s direct purchases of footwear, such as combat boots
CRS Product
and military dress shoes, in FY2018 totaled about $208
CRS Report R44850, Buying American: Protecting
million. Some manufacturers claim they have remained
U.S. Manufacturing Through the Berry and Kissell
viable because they make millions of pairs of shoes
Amendments, by Michaela D. Platzer.
annually for the military. While the United States is a major
manufacturer of safety footwear, about 99% of shoes sold
domestically are imported.
Hand or Measuring Tools
Michaela D. Platzer, Specialist in Industrial Organization
and Business
Hand or measuring tools make up a relatively small share of
DOD’s total Berry-applicable contract procurement
IF10605
https://crsreports.congress.gov
Buying American: The Berry and Kissell Amendments
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https://crsreports.congress.gov | IF10605 · VERSION 3 · UPDATED