Buying American: The Berry and Kissell Amendments

Buying American: The Berry and Kissell Amendments

Updated January 20, 2023
Buying American: The Berry and Kissell Amendments
Two U.S. laws—known as the Berry and Kissell
more than 1% of the department’s total spending on
Amendments—require that certain products purchased by
products and services in FY2021.
the Department of Defense (DOD) and some agencies of
The Kissell Amendment
the Department of Homeland Security (DHS) be
The Kissell Amendment, named after its sponsor,
manufactured and wholly produced within the United
Representative Larry Kissell, was enacted as Section 604 of
States. Congress typically debates the Berry Amendment in
the American Recovery and Reinvestment Act of 2009
the context of annual National Defense Authorization Act
(P.L. 111-5) and is codified at 6 U.S.C. §453b. On March 5,
(NDAA) legislation.
2013, amendments to the Homeland Security Acquisition
The laws are controversial. Supporters assert they help
Regulation implemented the Kissell Amendment
preserve the U.S. industrial base and sustain domestic
requirements for DHS procurement. Kissell requirements
manufacturing employment. Some lawmakers also assert
are modeled on the Berry Amendment. Since August 2009,
that production of products such as government uniforms
the Kissell Amendment has required DHS, when using
outside the United States raises national security concerns.
appropriated funds directly related to national security
Opponents contend the laws guarantee demand to certain
interests, to buy textiles, clothing, and footwear from
companies and raise the government’s procurement costs.
domestic sources. Excluded are food, hand or measuring
They also claim these laws are inconsistent with modern
tools, and flatware and dinnerware.
supply chains that source components and raw materials
Although the Kissell Amendment as enacted applies to all
from multiple countries.
The Berry Amendment
agencies of DHS, in practice its restrictions apply only to
the Transportation Security Administration (TSA). Prior to
The Berry Amendment, named after its sponsor,
the Kissell Amendment’s enactment, the United States had
Representative Ellis Yarnal Berry, first appeared in the
entered into commitments under the World Trade
Fifth Supplemental National Defense Appropriations Act of
Organization Agreement on Government Procurement
1941 (P.L. 77-29). It became permanent law through the
(WTO GPA), and under various free trade agreements, to
FY2002 NDAA (P.L. 107-107) and is codified at 10 U.S.C.
open U.S. government procurement to imported goods. The
§4862 and implemented through the Defense Federal
Kissell Amendment applies only where it does not
Acquisition Regulation Supplement. The Berry Amendment
contravene those commitments.
requires certain items purchased by DOD to be 100%
Procurement by other DHS agencies, such as Customs and
domestic in origin.
Border Protection or Immigration and Customs
The items covered by the law have varied over the years;
Enforcement, is subject to the Buy American Act.
currently, the Berry Amendment applies to DOD purchases
However, for these DHS agencies, the Buy American Act
of textiles, clothing, footwear, food, hand or measuring
can, in certain circumstances, be waived pursuant to the
tools, stainless steel flatware, and dinnerware. DOD
Trade Agreements Act of 1979 (19 U.S.C. §§2501-2581).
purchases of these items must be entirely grown,
Thus, DHS agencies can purchase textile and apparel
reprocessed, reused, or produced in the United States.
products from more than 100 countries provided certain
Unless exemptions in the law apply, the entire production
conditions are met.
process of covered products, from the production of raw
Berry and Kissell Exceptions
materials, to the manufacture of all components, to final
The Berry Amendment includes various exceptions. DOD,
assembly, must be performed in the United States.
for example, can buy from non-U.S. sources when
The Berry Amendment mandates a higher level of domestic

content than the Buy American Act of 1933 (41 U.S.C.
products are unavailable from American manufacturers
§§8301–8303), which applies to most direct procurement of
at satisfactory quality and sufficient quantity at U.S.
other federal agencies. Under the Buy American Act, the
market prices;

procured product must be mined, produced, or
items are used in support of combat operations or
manufactured in the United States. If manufactured, either
contingency operations;

at least 60% of the costs of its components must be
products are intended for resale at retail stores such as
manufactured in the United States, or the product must be a
military commissaries or post exchanges; and

commercially available off-the-shelf item.
purchases are part of a contract whose value is at or
below the Simplified Acquisition Threshold ($250,000).
In FY2021, purchases by DOD of Berry-applicable
The FY2018 NDAA (P.L. 115-91) raised the threshold
products amounted to approximately $5.3 billion, according
from $150,000; the FY2021 NDAA (P.L. 116-283)
to figures from the Federal Procurement Data System-Next
returned it to $150,000 for Berry-compliant purchases.
Generation (FPDS-NG), the primary source for federal
The Kissell Amendment has some similar exceptions.
procurement data, as reported through the System for
Award Management (SAM.gov) database. DOD
expenditures on Berry-related goods accounted for slightly
https://crsreports.congress.gov

Buying American: The Berry and Kissell Amendments
Manufacturing Affected by Berry
$108 million in FY2021. Leading contractors include Snap-
DOD’s annual purchases for Berry-applicable products are
On and Ideal Industries.
predominantly concentrated in food and apparel. In
Flatware and Dinnerware
FY2021, FPDS-NG data indicate that food and apparel
The FY2007 NDAA (P.L. 109-364) removed a decades-
purchased by DOD comprised approximately 92% of the
long mandate that DOD purchase American-made flatware.
department’s total Berry-specific contract obligations.
The FY2020 NDAA (P.L. 116-92) reinstated the domestic
Food
sourcing requirement for stainless-steel flatware. At
The Berry Amendment requires DOD to purchase most
present, Sherrill Manufacturing is the sole American
food from sources that manufacture, grow, or process food
producer of Berry-compliant flatware. In FY2021, flatware
in the United States. Over 95% of DOD’s food purchases
and dinnerware accounted for less than 1% of total DOD
originated from the Defense Logistics Agency (DLA) as
contract obligations. The restored Berry flatware
part of agency support to U.S. military personnel
requirement and the new requirement for dinnerware is set
worldwide. DLA’s leading food suppliers include Tyson
to expire September 30, 2023.
Foods, Sara Lee, Kraft Heinz, Trident Seafoods, PepsiCo,
Manufacturing Affected by Kissell
and General Mills. The most restrictive Berry-related
The Kissell Amendment is more limited than Berry as it
implementing regulation applies to seafood; it requires that
generally applies only to textiles and apparel, such as
DOD purchase only fish, shellfish, and seafood taken from
uniform items. In FY2021, TSA purchased approximately
the sea in U.S.-flagged vessels or caught in U.S. waters and
$55 million of Kissell-related items using appropriated
processed in the United States or on a U.S.-flagged ship.
funds. VF Imagewear is the leading contractor of TSA
Rations known as meals ready-to-eat (MREs) represent an
uniform items. The U.S.-Mexico-Canada Agreement, which
important component of DOD food sourced under the Berry
entered into force on July 1, 2020, ended the exceptions that
Amendment. SoPakCo, AmeriQual, and Wornick are
had permitted manufacturers from Mexico to qualify as
among the largest suppliers of MREs. The DOD market for
“American” sources. In FY2020, clothing items from
Berry-compliant MREs was approximately $480 million in
Mexico accounted for over 90% of TSA’s Kissell-
FY2021.
applicable purchases.
Textiles, Apparel, and Footwear
Congressional Debate
DOD’s procurement of textile and apparel articles,
The Berry and Kissell Amendments raise several issues for
including clothing and footwear, amounted to $2.3 billion
potential congressional consideration. One issue of debate
in FY2021, representing 43% of the Department’s total
has been the extent to which socioeconomic factors should
Berry-applicable purchases. Of these purchases, DOD
be considered in any procurement restrictions. For example,
expenditures specific to clothing amounted to $1.7 billion.
one prior proposal would have eliminated FPI/UNICOR’s
Purchases subject to the Berry Amendment represented 5%
status as a mandatory source for some items covered by
of the $49 billion of textile and apparel shipments from
Berry and Kissell, in an effort to increase competition.
U.S. mills in 2021.
Another issue has been associated monetary acquisition
One of the largest military-apparel contractors is the
thresholds; some lawmakers have offered bills raising the
Federal Prison Industries (FPI), also known as UNICOR—a
Berry and Kissell acquisition thresholds to $500,000,
government-owned supplier—which provides prison-
seeking to make foreign suppliers eligible to bid on more
manufactured textile and apparel products. In FY2021, over
DOD and DHS procurement contracts.
90% of FPI/UNICOR’s textile and apparel sales, which
There also are macro considerations of potential interest to
amounted to approximately $99 million, went to DOD.
Congress. One is whether DOD or DHS should restrict the
Other contractors of military textiles and apparel are the
issuance of domestic non-availability determinations if the
National Industries for the Blind, Aurora Industries, M&M
United States does not produce a solely domestic item, or if
Manufacturing, and American Apparel.
U.S. manufacturers are at maximum production capacity. A
In the FY2017 NDAA (P.L. 114-328), Congress extended
second consideration is the extent to which these two laws
the Berry Amendment by requiring DOD to provide 100%
best reflect current U.S. national security interests and
U.S.-made running shoes for recruits entering basic
industrial base concerns.
training. This requirement has been in effect since March
Another issue is whether provisions related to procurement
2017. Previously, DOD provided vouchers to recruits to
in the FY2023 NDAA (P.L. 117-263) might contravene
purchase athletic footwear, which did not have to be
preexisting commitments set forth under U.S. free trade
domestic in origin. DLA estimates potential demand for as
agreements and the WTO GPA for certain DHS agencies
many as 250,000 pairs of running shoes annually.
other than TSA. The law requires several DHS agencies to
DOD’s direct purchases of footwear, such as combat boots
purchase certain textile and apparel items related to national
and military dress shoes, amounted to $148 million in
security from domestic sources. The provision further
FY2021. Some manufacturers claim they have remained
stipulates that one-third of obligated funds per fiscal year be
viable because they make millions of pairs of shoes
awarded to entities that qualify as small businesses. In
annually for the military. While the United States is a major
addition, the law requires DHS to submit a report to
manufacturer of safety footwear, over 95% domestic
Congress, not later than 180 days after enactment, with
demand was met through imports in 2021.
recommendations on how DHS could procure additional
Hand or Measuring Tools
items from domestic sources, as well as enhance domestic
supply chains for such items related to national security.
Hand or measuring tools make up a relatively small share of
DOD’s total Berry-applicable purchases, at roughly 2% or
https://crsreports.congress.gov

Buying American: The Berry and Kissell Amendments

Heidi M. Peters, Acting Section Research Manager
Christopher D. Watson, Analyst in Industrial
IF10605
Organization and Business

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https://crsreports.congress.gov | IF10605 · VERSION 7 · UPDATED