https://crsreports.congress.gov
Updated February 5, 2020
Buying American: 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 (P.L. 107-107).
The Berry Amendment requires that certain items
purchased by DOD be 100% domestic in origin. The
requirement generally extends to inputs into the purchased
items. The law’s coverage has varied over the years. At
present, the Berry Amendment affects DOD purchases of
textiles, clothing, footwear, food, and hand and measuring
tools. Recently, Congress reinstated stainless-steel flatware
and dinnerware as additional covered items. DOD
purchases must be “entirely grown, reprocessed, reused, or
produced in the United States.” Unless exemptions laid out
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.
Sales to DOD in the five Berry-applicable product
categories totaled $3.3 billion in FY2019. DOD
expenditures on Berry Amendment products accounted for
roughly 1% of the department’s spending on products and
services in FY2019, according to figures from the Federal
Procurement Data System-Next Generation (FPDS-NG),
the primary source for federal procurement data.
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 and hand or measuring tools.
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. Between October 2014 and June
2017, more than half of DHS’s uniform items came from
foreign sources, according to a 2017 report by the
Government Accountability Office.
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, which allows foreign suppliers
to bid on more DOD procurement contracts.)
The Kissell Amendment has some similar exceptions, but
one notable difference. Manufacturers in Mexico, Canada,
and Chile can be treated as “American” sources under
Kissell because of existing trade agreements.
