Updated January 29, 2020
Defense Primer: The Berry and Kissell Amendments
Two U.S. laws require the Department of Defense (DOD)
The Kissell Amendment
and some agencies of the Department of Homeland Security
The Kissell Amendment (6 U.S.C. §453b) was enacted as
(DHS) to purchase only domestic products for certain
Section 604 of the American Recovery and Reinvestment
military and nonmilitary purposes. These laws are known as
Act of 2009 (P.L. 111-5) and, through the Homeland
the Berry Amendment and the Kissell Amendment.
Security Acquisition Regulation, made permanent on
Congress typically debates the Berry Amendment in the
March 5, 2013. Kissell requirements are modeled on the
context of the annual National Defense Authorization Act.
Berry Amendment. Since August 2009, the Kissell
The laws are controversial. Supporters argue they help
Amendment has required DHS when using appropriated
preserve the U.S. industrial base and create domestic
funds directly related to national security interests, to buy
manufacturing jobs. Some lawmakers also assert that
textiles, clothing, and footwear, from domestic sources.
production of government uniforms outside the United
Excluded are food and hand or measuring tools.
States raises national security concerns. Opponents believe
Although the Kissell Amendment as enacted applies to all
the laws give monopolies to certain companies and raise the
agencies of DHS, in practice its restrictions apply only to
government’s procurement costs. They also claim these
the Transportation Security Administration. This is because,
laws are inconsistent with modern supply chains that source
prior to the Kissell Amendment’s passage, the United States
components and raw materials from multiple countries.
had entered into commitments under the World Trade
The Berry Amendment
Organization Agreement on Government Procurement, and
under various free-trade agreements, to open U.S.
The Berry Amendment (10 U.S.C. §2533a) is the popular
government procurement to imported goods. The Kissell
name of a 1941 law enacted as part of the Fifth
Amendment applies only where it does not contravene
Supplemental National Defense Appropriations Act (P.L.
those commitments.
77-29). It became a permanent part of the U.S. Code when
it was codified by the FY2002 National Defense
Procurement by other DHS agencies, including the Secret
Authorization Act (NDAA; P.L. 107-107).
Service, Immigration and Customs Enforcement, and
Customs and Border Protection, is subject to the less-
The Berry Amendment requires certain items purchased by
stringent Buy American Act. For these DHS agencies, the
DOD to be 100% domestic in origin. The requirement
Buy American Act is also waived pursuant to the Trade
generally extends to inputs into the purchased items. The
Agreements Act (P.L. 96-39). Thus, they can purchase
items covered by the law have varied over the years. The
textiles and apparel products from more than 100 countries
law affects DOD purchases of textiles, clothing, footwear,
if certain conditions are met. Between October 2014 and
food, and hand or measuring tools. Recently, Congress
June 2017, more than half of DHS’s uniform items came
reinstated stainless-steel flatware and dinnerware as
from foreign sources, according to a 2017 report by the
additional covered items. DOD purchases of these items
must be “entirely
Government Accountability Office.
grown, reprocessed, reused, or produced
in the United States.” Unless exemptions in the law apply,
Berry and Kissell Exceptions
the entire production process of affected products, from the
The Berry Amendment includes various exceptions. For
production of raw materials to the manufacture of all
example, DOD can buy from non-U.S. sources when
components to final assembly, must be performed in the
products are unavailable from American manufacturers
United States.
at satisfactory quality and sufficient quantity at U.S.
The Berry Amendment mandates a much higher level of
market prices;
domestic content than the Buy American Act of 1933,
items are used in support of combat operations or
which generally governs the procurements of other federal
contingency operations;
agencies. Under the Buy American Act, the final product
products are intended for resale at retail stores such as
must be mined, produced, or manufactured in the United
military commissaries or post exchanges; and
States, and if manufactured, either at least 50% of the costs
purchases are part of a contract whose value is at or
of its components must be manufactured in the United
below the Simplified Acquisition Threshold, generally
States, or the end product must be a commercially available
$250,000, in which case the item can be sourced
off-the-shelf item.
overseas. (The FY2018 NDAA (P.L. 115-91) raised the
Sales to DOD in the five Berry-applicable product
threshold from $150,000, which allows foreign suppliers
categories totaled about $3.3 billion in FY2019. DOD
to bid on more DOD procurement contracts.)
expenditures on Berry Amendment products accounted for
The Kissell Amendment has some similar exceptions, but
roughly 1% of the department’s spending on products and
one notable difference. Manufacturers in Mexico, Canada,
services in FY2019, according to figures from the Federal
and Chile can be treated as “American” sources under
Procurement Data System-Next Generation (FPDS-NG),
Kissell requirements because of existing trade agreements.
the primary source for federal procurement data.
https://crsreports.congress.gov
Defense Primer: The Berry and Kissell Amendments
Manufacturing Affected by Berry
million. Some manufacturers claim they have remained
A majority of DOD’s procurement contract obligations for
viable because they make millions of pairs of shoes
Berry-applicable items are related to food and apparel,
annually for the military. While the United States is a major
according to data from the FPDS-NG. Of all DOD’s
manufacturer of safety footwear, about 99% of shoes sold
reported contracts for Berry-related items, under $2 billion
domestically are imported.
per year fall below the Simplified Acquisition Threshold,
Hand or Measuring Tools
and are therefore not subject to Berry requirements.
Hand or measuring tools make up a relatively small share of
Food
DOD’s total Berry-applicable contract procurement
The Berry Amendment requires DOD to purchase most
obligations, at about $113 million in FY2019. Leading
food for military services from sources that manufacture,
vendors are Snap-On, Kipper Tool, and Ideal Industries.
grow, or process food in the United States. DLA reported
Flatware and Dinnerware
about $750 million in contract obligations in FY2019 to
The FY2007 NDAA (P.L. 109-364) removed a decades-
feed U.S. troops worldwide. DLA’s leading food suppliers
long mandate that DOD purchase American-made flatware.
include Tyson Foods, Sara Lee, Kraft Heinz, Trident
The FY2020 NDAA reinstated the domestic sourcing
Seafoods, PepsiCo, and General Mills. The most restrictive
requirement for stainless-steel flatware. DOD buys about
Berry-related provision applies to seafood; it requires that
500,000 knives, forks, and spoons a year. Sherrill
DOD purchase only fish, shellfish, and seafood taken from
Manufacturing is currently the only Berry-compliant
the sea in U.S.-flagged vessels or caught in U.S. waters and
flatware manufacturer in the United States. Congress also
processed in the United States or on a U.S.-flagged ship.
stipulated DOD purchase dinnerware only from domestic
Meals ready-to-eat (MREs) form a major part of DOD food
producers such as Homer Laughlin China Company, which
sourced under the Berry Amendment. AmeriQual,
manufacturers Fiesta dinnerware.
SoPakCo, and Wornick are the largest suppliers of MREs.
The restored Berry flatware requirement and the new
The DOD market for Berry-compliant MREs was roughly
requirement for dinnerware are being phased in during 2020
$600 million in FY2019.
and expire in 2023. Congress also required a report from
Textiles, Apparel, and Footwear
the Secretary of Defense that includes a recommendation on
At nearly $2.5 billion in FY2019, DOD’s procurement of
whether DOD purchases of dinnerware and stainless-steel
clothing, textiles, and footwear made up approximately
flatware should be limited to sources in the United States.
three-fourths of DOD’s contract obligations subject to the
The report is due by October 1, 2020.
Berry Amendment in the last fiscal year.
Manufacturing Affected by Kissell
One of the largest military-apparel contractors is the
The Kissell Amendment is more limited than Berry because
Federal Prison Industries (FPI), also known as UNICOR,
it generally applies only to uniform items and body armor.
which supplies prison-manufactured apparel. This
In FY2019, the Transportation Security Administration
government-owned supplier has proven controversial in
purchased approximately $35 million of apparel for Kissell-
both Congress and the apparel industry. Critics have voiced
related items using appropriated funds. The new U.S.-
concern that prison industrial programs pose a threat to
Mexico-Canada Agreement, which is not yet in effect, will
private enterprise and to the jobs of residents who are not
no longer permit manufacturers from Canada and Mexico to
incarcerated. Among other issues, critics have challenged
qualify as “American” sources.
FPI/UNICOR’s mandatory source provision,
which could
require DOD to purchase from FPI/UNICOR factories if
Congressional Debate
they can provide the desired product, within the required
The Berry and Kissell Amendments raise several issues: If
time frame, and at a competitive price. In FY2019, DOD
the United States does not produce a solely domestic item,
accounted for nearly 90% of FPI/UNICOR’s textile and
or if U.S. manufacturers are at maximum production
apparel sales.
capability, should DOD or DHS restrict procurement from
Other large contractors of military apparel are the National
foreign sources? And do U.S. national security interests and
Industries for the Blind, Aurora Industries, M&M
industrial base concerns justify these laws?
Manufacturing, and American Apparel. Another Berry
Over the years, changes have been proposed to the Berry
requirement is the manufacture of DOD apparel in the
and Kissell Amendments, such as adding new items
United States, Puerto Rico, or other U.S. territories.
covered by these laws. One past proposal would have
In the FY2017 NDAA (P.L. 114-328), Congress extended
eliminated FPI/UNICOR’s federal contract mandate. Other
the Berry Amendment by requiring DOD to provide 100%
lawmakers have offered bills raising the Berry and Kissell
U.S.-made running shoes for recruits entering basic
acquisition thresholds to $500,000, making foreign
training. Previously, DOD provided vouchers to recruits to
suppliers eligible to bid on more DOD and DHS
purchase athletic footwear, which did not have to be
procurement contracts. Some oppose a higher threshold and
domestic in origin. DLA estimates potential demand for as
have introduced legislation to lower it to $150,000.
many as 250,000 pairs of running shoes annually. Since the
new requirement took effect in March 2017, DLA has
awarded three contracts for athletic footwear to San
Michaela D. Platzer, Specialist in Industrial Organization
Antonio Shoes, Propper International, and New Balance.
and Business
DOD’s direct purchases of footwear, such as combat boots
IF10609
and military dress shoes, in FY2019 totaled about $165
https://crsreports.congress.gov
Defense Primer: The Berry and Kissell Amendments
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https://crsreports.congress.gov | IF10609 · VERSION 5 · UPDATED