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

and military dress shoes, in FY2020 totaled about $130
million. Some manufacturers claim they have remained
Michaela D. Platzer, Specialist in Industrial Organization
viable because they make millions of pairs of shoes
and Business
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Defense Primer: The Berry and Kissel Amendments

IF10609


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https://crsreports.congress.gov | IF10609 · VERSION 10 · UPDATED

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