Updated February 5, 2020
Buying American: 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 (TSA). This is
laws are inconsistent with modern supply chains that source
because prior to the Kissell Amendment’s passage, the
components and raw materials from multiple countries.
United States had entered into commitments under the
The Berry Amendment
World Trade Organization Agreement on Government
Procurement, and under various free-trade agreements, to
The Berry Amendment (10 U.S.C. §2533a) is the popular
open U.S. government procurement to imported goods. The
name of a 1941 law enacted as part of the Fifth
Kissell Amendment applies only where it does not
Supplemental National Defense Appropriations Act (P.L.
contravene 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 (P.L. 107-107).
Service, Immigration and Customs Enforcement, and
Customs and Border Protection, is subject to the less-
The Berry Amendment requires that certain items
stringent Buy American Act. For these DHS agencies, the
purchased by DOD be 100% domestic in origin. The
Buy American Act is also waived pursuant to the Trade
requirement generally extends to inputs into the purchased
Agreements Act (P.L. 96-39). Thus, they can purchase
items. The law’s coverage has varied over the years. At
textile and apparel products from more than 100 countries if
present, the Berry Amendment affects DOD purchases of
certain conditions are met. Between October 2014 and June
textiles, clothing, footwear, food, and hand and measuring
2017, more than half of DHS’s uniform items came from
tools. Recently, Congress reinstated stainless-steel flatware
foreign sources, according to a 2017 report by the
and dinnerware as additional covered items. DOD
Government Accountability Office.
purchases must be “entirely grown, reprocessed, reused, or
produced in the United States.” Unless exemptions laid out
Berry and Kissell Exceptions
in the law apply, the entire production process of affected
The Berry Amendment includes various exceptions. For
products, from the production of raw materials to the
example, DOD can buy from non-U.S. sources when
manufacture of all components to final assembly, must be
products are unavailable from American manufacturers
performed in the 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 $3.3 billion in FY2019. DOD
to bid on more DOD procurement contracts.)
expenditures on Berry Amendment products accounted for
roughly 1% of the department’s spending on products and
The Kissell Amendment has some similar exceptions, but
services in FY2019, according to figures from the Federal
one notable difference. Manufacturers in Mexico, Canada,
Procurement Data System-Next Generation (FPDS-NG),
and Chile can be treated as “American” sources under
the primary source for federal procurement data.
Kissell because of existing trade agreements.
https://crsreports.congress.gov
Buying American: The Berry and Kissell Amendments
Manufacturing Affected by Berry
million. Some manufacturers claim they have remained
Most of DOD’s procurement contract obligations for Berry-
viable because they make millions of pairs of shoes
applicable items are related to food and apparel, according
annually for the military. While the United States is a major
to data from the FPDS-NG. Of all DOD’s reported
manufacturer of safety footwear, about 99% of shoes sold
contracts for Berry-related items, under $2 billion per year
domestically are imported.
fall below the Simplified Acquisition Threshold, and are
Hand or Measuring Tools
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. The Defense
Flatware and Dinnerware
Logistics Agency (DLA) reported about $750 million in
The FY2007 NDAA (P.L. 109-364) removed a decades-
contract obligations in FY2019 to feed U.S. troops
long mandate that DOD purchase American-made flatware.
worldwide. DLA’s leading food suppliers include Tyson
The FY2020 NDAA reinstated the domestic sourcing
Foods, Sara Lee, Kraft Heinz, Trident Seafoods, PepsiCo,
requirement for stainless-steel flatware. DOD buys about
and General Mills. The most restrictive Berry-related
500,000 knives, forks, and spoons a year. Sherrill
provision applies to seafood; it requires that DOD purchase
Manufacturing is currently the only Berry-compliant
only fish, shellfish, and seafood taken from the sea in U.S.-
flatware manufacturer in the United States. Congress also
flagged vessels or caught in U.S. waters and processed in
stipulated DOD purchase dinnerware only from domestic
the United States or on a U.S.-flagged ship.
producers such as Homer Laughlin China Company, which
Meals ready-to-eat (MREs) form a major part of DOD food
manufacturers Fiesta dinnerware.
sourced under the Berry Amendment. AmeriQual,
SoPakCo, and Wornick are among the largest suppliers of
The restored Berry flatware requirement and the new
MREs. The DOD market for Berry-compliant MREs was
requirement for dinnerware are being phased in during 2020
roughly $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. DOD’s
In FY2019, the Transportation Security Administration
awarding of clothing contracts to this government-owned
purchased approximately $35 million of apparel for Kissell-
supplier has proven controversial in both Congress and the
related items using appropriated funds. The new U.S.-
apparel industry. Critics have voiced concern that prison
Mexico-Canada Agreement, which is not yet in effect, will
industrial programs pose a threat to private enterprise and to
no longer permit manufacturers from Canada and Mexico to
the jobs of residents who are not incarcerated. Among other
qualify as “American” sources.
issues, critics have challenged FPI/UNICOR’s mandatory
Congressional Debate
source provision, which could require DOD to purchase
The Berry and Kissell Amendments raise several issues: If
from FPI/UNICOR factories if they can provide the desired
the United States does not produce a solely domestic item,
product, within the required time frame, and at a
or if U.S. manufacturers are at maximum production
competitive price. In FY2019, DOD accounted for nearly
capability, should DOD or DHS restrict procurement from
90% of FPI/UNICOR’s textile and apparel sales.
foreign sources? And do U.S. national security interests and
Other large contractors of military apparel are the National
industrial base concerns justify these laws?
Industries for the Blind, Aurora Industries, M&M
Over the years, changes have been proposed to the Berry
Manufacturing, and American Apparel. The Berry
and Kissell Amendments, such as adding new items
Amendment requires the manufacture of DOD apparel in
covered by these laws. One past proposal would have
the United States, Puerto Rico, or other U.S. territories.
eliminated FPI/UNICOR’s federal contract mandate. Other
In the National Defense Authorization Act for Fiscal Year
lawmakers have offered bills raising the Berry and Kissell
2017 (P.L. 114-328), Congress extended the Berry
acquisition thresholds to $500,000, making foreign
Amendment by requiring DOD to provide 100% U.S.-made
suppliers eligible to bid on more DOD and DHS
running shoes for recruits entering basic training. Previously,
procurement contracts. Some oppose a higher threshold and
DOD provided vouchers to recruits to purchase athletic
have introduced legislation to lower it to $150,000.
footwear, which did not have to be domestic in origin. DLA
estimates potential demand for as many as 250,000 pairs of
running shoes annually. Since the new requirement took
effect in March 2017, DLA has awarded three contracts for
Michaela D. Platzer, Specialist in Industrial Organization
athletic footwear to San Antonio Shoes, Propper
and Business
International, and New Balance.
IF10605
DOD’s direct purchases of footwear, such as combat boots
and military dress shoes, in FY2019 totaled about $165
https://crsreports.congress.gov
Buying American: The Berry and Kissell Amendments
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https://crsreports.congress.gov | IF10605 · VERSION 4 · UPDATED