https://crsreports.congress.gov
Updated January 13, 2021
Defense Primer: The Berry and Kissell Amendments
Two U.S. laws require the Department of Defense (DOD)
and some agencies of the Department of Homeland Security
(DHS) to purchase only domestic products for certain
military and nonmilitary purposes. These laws are known as
the Berry Amendment and the Kissell Amendment.
Congress typically debates the Berry Amendment in the
context of the annual National Defense Authorization Act.
The laws are controversial. Supporters argue they help
preserve the U.S. industrial base and create domestic
manufacturing jobs. Some lawmakers also assert that
production of government uniforms outside the United
States raises national security concerns. Opponents believe
the laws give monopolies to certain companies and raise the
government’s procurement costs. They also claim these
laws are inconsistent with modern supply chains that source
components and raw materials from multiple countries.
The Berry Amendment
The Berry Amendment (10 U.S.C. §2533a) is the popular
name of a 1941 law enacted as part of the Fifth
Supplemental National Defense Appropriations Act (P.L.
77-29). It became a permanent part of the U.S. Code when
it was codified by the FY2002 National Defense
Authorization Act (NDAA; P.L. 107-107).
The Berry Amendment requires certain items purchased by
DOD to be 100% domestic in origin. The requirement
generally extends to inputs into the purchased items. The
items covered by the law have varied over the years. The
law affects DOD purchases of textiles, clothing, footwear,
food, and hand or measuring tools. Recently, Congress
reinstated stainless-steel flatware and added dinnerware as
additional covered items. DOD purchases of these items
must be “entirely grown, reprocessed, reused, or produced
in the United States.” Unless exemptions in the law apply,
the entire production process of affected products, from the
production of raw materials to the manufacture of all
components to final assembly, must be performed in the
United States.
The Berry Amendment mandates a much higher level of
domestic content than the Buy American Act of 1933,
which generally governs the procurements of other federal
agencies. Under the Buy American Act, the final product
must be mined, produced, or manufactured in the United
States, and if manufactured, either at least 50% of the costs
of its components must be manufactured in the United
States, or the end product must be a commercially available
off-the-shelf item.
Total sales to DOD in the five Berry-applicable product
categories came to around $4.0 billion in FY2020. DOD
expenditures on Berry Amendment products accounted for
around 1% of the department’s spending on products and
services in FY2020, according to figures from the Federal
Procurement Data System-Next Generation, the primary
source for federal procurement data, as reported through the
System for Award Management (beta.SAM.gov) database.
The Kissell Amendment
The Kissell Amendment (6 U.S.C. §453b) was enacted as
Section 604 of the American Recovery and Reinvestment
Act of 2009 (P.L. 111-5) and, through the Homeland
Security Acquisition Regulation, made permanent on
March 5, 2013. Kissell requirements are modeled on the
Berry Amendment. Since August 2009, the Kissell
Amendment has required DHS when using appropriated
funds directly related to national security interests, to buy
textiles, clothing, and footwear, from domestic sources.
Excluded are food, hand or measuring tools, and flatware
and dinnerware.
Although the Kissell Amendment as enacted applies to all
agencies of DHS, in practice its restrictions apply only to
the Transportation Security Administration (TSA). This is
because, prior to the Kissell Amendment’s passage, the
United States had entered into commitments under the
World Trade Organization Agreement on Government
Procurement, and under various free-trade agreements, to
open U.S. government procurement to imported goods. The
Kissell Amendment applies only where it does not
contravene those commitments.
Procurement by other DHS agencies, including the Secret
Service, Immigration and Customs Enforcement, and
Customs and Border Protection, is subject to the less-
stringent Buy American Act. For these DHS agencies, the
Buy American Act is also waived pursuant to the Trade
Agreements Act (P.L. 96-39). Thus, they can purchase
textile and apparel products from more than 100 countries if
certain conditions are met. Over half of DHS’s uniform
items came from foreign sources in FY2019, according to a
2020 report by the Department of Homeland Security.
Berry and Kissell Exceptions
The Berry Amendment includes various exceptions. For
example, DOD can buy from non-U.S. sources when
products are unavailable from American manufacturers
at satisfactory quality and sufficient quantity at U.S.
market prices;
items are used in support of combat operations or
contingency operations;
products are intended for resale at retail stores such as
military commissaries or post exchanges; and
purchases are part of a contract whose value is at or
below the Simplified Acquisition Threshold, generally
$250,000, in which case the item can be sourced
overseas. (The FY2018 NDAA (P.L. 115-91) raised the
threshold from $150,000; the FY2021 NDAA (P.L. 116-
283) returned it to $150,000 for Berry-compliant
purchases.)
The Kissell Amendment has some similar exceptions.
Manufacturing Affected by Berry
A majority of DOD’s procurement contract obligations for
Berry-applicable items are related to food and apparel,
