Updated January 13, 2021
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, hand or measuring tools, and flatware
States raises national security concerns. Opponents believe
and dinnerware.
the laws give monopolies to certain companies and raise the
Although the Kissell Amendment as enacted applies to all
government’s procurement costs. They also claim these
agencies of DHS, in practice its restrictions apply only to
laws are inconsistent with modern supply chains that source
the Transportation Security Administration (TSA). This is
components and raw materials from multiple countries.
because prior to the Kissell Amendment’s passage, the
The Berry Amendment
United States had entered into commitments under the
World Trade Organization Agreement on Government
The Berry Amendment (10 U.S.C. §2533a) is the popular
Procurement, and under various free-trade agreements, to
name of a 1941 law enacted as part of the Fifth
open U.S. government procurement to imported goods. The
Supplemental National Defense Appropriations Act (P.L.
Kissell Amendment applies only where it does not
77-29). It became a permanent part of the U.S. Code when
contravene those commitments.
it was codified by the FY2002 National Defense
Authorization Act (P.L. 107-107).
Procurement by other DHS agencies, including the Secret
Service, Immigration and Customs Enforcement, and
The Berry Amendment requires that certain items
Customs and Border Protection, is subject to the less-
purchased by DOD be 100% domestic in origin. The
stringent Buy American Act. For these DHS agencies, the
requirement generally extends to inputs into the purchased
Buy American Act is also waived pursuant to the Trade
items. The law’s coverage has varied over the years. At
Agreements Act (P.L. 96-39). Thus, they can purchase
present, the Berry Amendment affects DOD purchases of
textile and apparel products from more than 100 countries if
textiles, clothing, footwear, food, and hand or measuring
certain conditions are met. Over half of DHS’s uniform
tools. Recently, Congress reinstated stainless-steel flatware
items came from foreign sources in FY2019, according to a
and added dinnerware as additional covered items. DOD
2020 report by the Department of Homeland Security.
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; the FY2021 NDAA (P.L. 116-
categories totaled about $4.0 billion in FY2020. DOD
283) returned it to $150,000 for Berry-compliant
expenditures on Berry Amendment products accounted for
purchases.)
roughly 1% of the department’s spending on products and
services in FY2020, according to figures from the Federal
The Kissell Amendment has some similar exceptions.
Procurement Data System-Next Generation (FPDS-NG),
Manufacturing Affected by Berry
the primary source for federal procurement data, as reported
A majority of DOD’s procurement contract obligations for
by the System for Award Management (beta.SAM.gov).
Berry-applicable items are related to food and apparel,
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Buying American: The Berry and Kissell Amendments
according to data from the FPDS-NG. Of all DOD’s
major manufacturer of safety footwear, about 99% of shoes
reported contracts for Berry-related items, about $1.8
sold domestically are imported.
billion in FY2020 fell below the Simplified Acquisition
Hand or Measuring Tools
Threshold and 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 over $66 million in FY2020. Leading
food for military services from sources that manufacture,
contractors include Snap-On and Ideal Industries.
grow, or process food in the United States. The Defense
Flatware and Dinnerware
Logistics Agency (DLA) reported nearly $700 million in
The FY2007 NDAA (P.L. 109-364) removed a decades-
contract obligations in FY2020 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.
Meals ready-to-eat (MREs) form a major part of DOD food
The restored Berry flatware requirement and the new
sourced under the Berry Amendment. SoPakCo,
requirement for dinnerware is effective from after
AmeriQual, and Wornick are among the largest suppliers of
December 20, 2020, and is set to expire before September
MREs. The DOD market for Berry-applicable MREs was
30, 2023. Congress also required a report from the
over $500 million in FY2020.
Secretary of Defense that includes a recommendation on
Textiles, Apparel, and Footwear
whether DOD purchases of dinnerware and stainless-steel
At nearly $1.6 billion in FY2020, DOD’s procurement of
flatware should be limited to sources in the United States.
clothing, textiles, and footwear made up some two-thirds of
Manufacturing Affected by Kissell
DOD’s contract obligations subject to the Berry
The Kissell Amendment is more limited than Berry because
Amendment in the last fiscal year.
it generally applies only to uniform items and body armor.
One of the largest military-apparel contractors is the
In FY2020, TSA purchased approximately $34 million of
Federal Prison Industries (FPI), also known as UNICOR,
Kissell-related items using appropriated funds. The leading
which supplies prison-manufactured apparel. DOD’s
contractor of TSA uniform items is VF Imagewear. The
awarding of clothing contracts to this government-owned
U.S.-Mexico-Canada Agreement (USMCA), which entered
supplier has proven controversial in both Congress and the
into force on July 1, 2020, ended the exceptions that had
apparel industry. Critics have voiced concern that prison
permitted manufacturers from Mexico to qualify as
industrial programs pose a threat to private enterprise and to
“American” sources. Mexico accounted for around one-
the jobs of residents who are not incarcerated. Among other
fifth of the TSA’s total annual expenditures for the
issues, critics have challenged FPI/UNICOR’s mandatory
purchase of uniform items. For items covered by the law,
source provision, which could require DOD to purchase
one bill in the 116th Congress would have required, among
from FPI/UNICOR factories if they can provide the desired
other things, more purchases from small businesses and
product, within the required time frame, and at a
considered raising the uniform allowances.
competitive price. In FY2020, DOD accounted for over
90% of FPI/UNICOR’s textile and apparel sales.
Congressional Debate
The Berry and Kissell Amendments raise several issues: If
Other large contractors of military apparel are the National
the United States does not produce a solely domestic item,
Industries for the Blind, Aurora Industries, M&M
or if U.S. manufacturers are at maximum production
Manufacturing, and American Apparel. The Berry
capability, should DOD or DHS restrict procurement from
Amendment requires the manufacture of DOD apparel in
foreign sources? And do U.S. national security interests and
the United States, including Puerto Rico and other U.S.
industrial base concerns justify these laws?
territories.
Over the years, changes have been proposed to the Berry
In the FY2017 NDAA (P.L. 114-328), Congress extended
and Kissell Amendments, such as adding new items
the Berry Amendment by requiring DOD to provide 100%
covered by these laws. One past proposal would have
U.S.-made running shoes for recruits entering basic
eliminated FPI/UNICOR’s federal contract mandate. Other
training. Previously, DOD provided vouchers to recruits to
lawmakers have offered bills raising the Berry and Kissell
purchase athletic footwear, which did not have to be
acquisition thresholds to $500,000, making foreign
domestic in origin. DLA estimates potential demand for as
suppliers eligible to bid on more DOD and DHS
many as 250,000 pairs of running shoes annually. Since the
procurement contracts. Congress returned the contracting
new requirement took effect in March 2017, DLA has
threshold for Berry-compliant purchases to $150,000 in the
awarded three contracts for athletic footwear to San
FY2021 NDAA, subject to future inflation adjustments.
Antonio Shoes, Propper International, and New Balance.
DOD’s direct purchases of footwear, such as combat boots
Michaela D. Platzer, Specialist in Industrial Organization
and military dress shoes, in FY2020 totaled about $130
and Business
million. Some manufacturers claim they have remained
viable because they make millions of pairs of shoes
IF10605
annually for the military. Even though the United States is a
https://crsreports.congress.gov
Buying American: The Berry and Kissell Amendments
Disclaimer
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https://crsreports.congress.gov | IF10605 · VERSION 6 · UPDATED