10 U.S.C. § 4862 | Requirement to buy certain articles from American sources; exceptions

(a)

Requirement .—

Except as provided in subsections (c) through (h), funds appropriated or otherwise available to the Department of Defense may not be used for the procurement of an item described in subsection (b) if the item is not grown, reprocessed, reused, or produced in the United States.

(b)

Covered Items .—

An item referred to in subsection (a) is any of the following:

(1)

An article or item of—

(A)

food;

(B)

clothing and the materials and components thereof, other than sensors, electronics, or other items added to, and not normally associated with, clothing (and the materials and components thereof);

(C)

tents (and the structural components thereof), tarpaulins, or covers;

(D)

cotton and other natural fiber products, woven silk or woven silk blends, spun silk yarn for cartridge cloth, synthetic fabric or coated synthetic fabric (including all textile fibers and yarns that are for use in such fabrics), canvas products, or wool (whether in the form of fiber or yarn or contained in fabrics, materials, or manufactured articles); or

(E)

any item of individual equipment manufactured from or containing such fibers, yarns, fabrics, or materials.

(2)

Hand or measuring tools.

(3)

Stainless steel flatware.

(4)

Dinnerware.

(5)

A flag of the United States.

(c)

Availability Exception .—

Subsection (a) does not apply to the extent that the Secretary of Defense or the Secretary of the military department concerned determines that satisfactory quality and sufficient quantity of any such article or item described in subsection (b) grown, reprocessed, reused, or produced in the United States cannot be procured as and when needed at United States market prices.

(d)

Exception for Certain Procurements .—

Subsection (a) does not apply to the following:

(1)

Procurements outside the United States in support of combat operations or procurements of any item listed in subsection (b)(1)(A) or (b)(2) in support of contingency operations.

(2)

Procurements by, or for, vessels in foreign waters.

(3)

Emergency procurements or procurements of perishable foods by, or for, an establishment located outside the United States for the personnel attached to such establishment.

(4)

section 3204(a)(2) of this title Procurements of any item listed in subsection (b)(1)(A) or (b)(2) for which the use of procedures other than competitive procedures has been approved on the basis of , relating to unusual and compelling urgency of need.

(e)

Exception for Chemical Warfare Protective Clothing .—

Subsection (a) does not preclude the procurement of chemical warfare protective clothing produced outside the United States if—

(1)

such procurement is necessary—

(A)

to comply with agreements with foreign governments requiring the United States to purchase supplies from foreign sources for the purposes of offsetting sales made by the United States Government or United States firms under approved programs serving defense requirements; or

(B)

in furtherance of agreements with foreign governments in which both such governments agree to remove barriers to purchases of supplies produced in the other country or services performed by sources of the other country; and

(2)

22 U.S.C. 2776 section 2457 of this title any such agreement with a foreign government complies, where applicable, with the requirements of section 36 of the Arms Export Control Act () and with .

(f)

Exceptions for Certain Other Commodities and Items .—

Subsection (a) does not preclude the procurement of the following:

(1)

Foods manufactured or processed in the United States.

(2)

Waste and byproducts of cotton and wool fiber for use in the production of propellants and explosives.

(g)

Exception for Commissaries, Exchanges, and Other Nonappropriated Fund Instrumentalities .—

(1)

Except as provided in paragraph (2), subsection (a) does not apply to items purchased for resale purposes in commissaries, exchanges, or nonappropriated fund instrumentalities operated by the Department of Defense.

(2)

(A)

Paragraph (1) shall not apply with respect to the procurement of seafood originating in a covered foreign country, including procurement for use in military dining facilities, galleys aboard United States naval vessels, and procurement for resale in commissary stores, notwithstanding the source of funds used for such procurement.

(B)

The Secretary of Defense may waive the requirements of subparagraph (A) if such procurement would cause undue burden to a naval vessel while at sea or in port at a foreign port, a dining facility in a foreign country, a commissary, an exchange, or a nonappropriated fund instrumentality located on a military installation located outside the United States.

(C)

In this paragraph, the term “covered foreign country” means The People’s Republic of China, the Russian Federation, the Islamic Republic of Iran, or the Democratic People’s Republic of Korea.

(h)

Exception for Small Purchases .—

(1)

Except with respect to purchases of flags of the United States, subsection (a) does not apply to purchases for amounts not greater than $150,000. A proposed procurement of an item in an amount greater than $150,000 may not be divided into several purchases or contracts for lesser amounts in order to qualify for this exception.

(2)

(A)

(i)

Except as provided by subparagraph (B), subsection (a) does not apply to purchases of flags of the United States for amounts not greater than $10,000.

(ii)

A proposed procurement in an amount greater than $10,000 may not be divided into several purchases or contracts for lesser amounts in order to qualify for the exception under clause (i).

(B)

The Secretary of Defense may waive subsection (a) with respect to a purchase of flags of the United States in an amount greater than $10,000 if the Secretary of Defense determines such waiver appropriate.

(C)

This section is applicable to contracts and subcontracts for the procurement of flags of the United States.

(3)

On October 1 of each year that is evenly divisible by five, the Secretary of Defense may adjust the dollar threshold in this subsection based on changes in the Consumer Price Index. Any such adjustment shall take effect on the date on which the Secretary publishes notice of such adjustment in the Federal Register.

(i)

Applicability to Contracts and Subcontracts for Procurement of Commercial Products .—

section 1906 of title 41This section is applicable to contracts and subcontracts for the procurement of commercial products notwithstanding .

(j)

Geographic Coverage .—

In this section, the term “United States” includes the possessions of the United States.

(k)

Notification Required WithinDays After Contract Award If Certain Exceptions Applied 7 .—

In the case of any contract for the procurement of an item described in subparagraph (B), (C), (D), or (E) of subsection (b)(1), if the Secretary of Defense or of the military department concerned applies an exception set forth in subsection (c) or (e) with respect to that contract, the Secretary shall, not later than 7 days after the award of the contract, post a notification that the exception has been applied on the Internet site maintained by the General Services Administration known as FedBizOpps.gov (or any successor site).

Amendment of Subsection (b)

Pub. L. 118–159, div. A, title VIII, § 842(c)Dec. 23, 2024138 Stat. 1991Jan. 1, 2029, , , provided that, effective , subsection (b) of this section is amended by repealing paragraphs (3) and (4).

See 2024 Amendment note below.

Editorial Notes

Amendments

Pub. L. 119–602025—Subsec. (g). designated existing provisions as par. (1), substituted “Except as provided in paragraph (2), subsection (a)” for “Subsection (a)”, and added par. (2).

“(3) Stainless steel flatware.

“(4) Dinnerware.”

Pub. L. 118–159, § 842(a), added pars. (3) and (4).

Pub. L. 118–159, § 843Subsec. (d)(2). , inserted “, or for,” after “Procurements by”.

Pub. L. 118–31, § 832(a)(1)2023—Subsec. (b)(5). , added par. (5).

Pub. L. 118–31, § 832(a)(2)(A)Subsec. (h)(1). , substituted “Except with respect to purchases of flags of the United States, subsection (a)” for “Subsection (a)”.

Pub. L. 118–31, § 832(a)(2)(B)Subsec. (h)(2), (3). , (C), added par. (2) and redesignated former par. (2) as (3).

Pub. L. 116–283, § 1870(c)(2)section 2533a of this title2021—, renumbered as this section.

Pub. L. 117–81 Pub. L. 116–283, § 1883(b)(2)Subsec. (d)(4). , which directed substitution of “section 3204(a)(2)” for “section 2304(c)(2)”, could not be executed because of the intervening amendment by . See note below.

Pub. L. 116–283, § 1883(b)(2), substituted “section 3204(a)(2)” for “section 2304(c)(2)”.

Pub. L. 116–283, § 817 section 2304(g) of this titleSubsec. (h). , amended subsec. (h) generally. Prior to amendment, text read as follows: “Subsection (a) does not apply to purchases for amounts not greater than the simplified acquisition threshold referred to in .”

Pub. L. 116–92, § 854(a)(3)2019—Subsec. (b)(3), (4). , struck out pars. (3) and (4) which added stainless steel flatware and dinnerware to the list of covered items.

Pub. L. 116–92, § 854(a)(1), added pars. (3) and (4).

Pub. L. 115–2322018—Subsec. (i). substituted “Products” for “Items” in heading and “commercial products” for “commercial items” in text.

Pub. L. 112–2392013—Subsec. (k). substituted “FedBizOpps.gov” for “FedBizOps.gov”.

Pub. L. 112–812011—Subsec. (b)(1)(C). inserted “(and the structural components thereof)” after “tents”.

Pub. L. 111–383, § 847Subsec. (c). , substituted “subsection (b)” for “subsection (b)(1)”.

Pub. L. 111–383, § 1075(b)(38)Subsec. (d)(1), (4). , substituted “(b)(1)(A) or (b)(2)” for “(b)(1)(A), (b)(2), or (b)(3)”.

Pub. L. 111–350 section 1906 of title 41 41 U.S.C. 430Subsec. (i). substituted “” for “section 34 of the Office of Federal Procurement Policy Act ()”.

Pub. L. 109–163, § 833(b)2006—Subsec. (b)(1)(B). , inserted before semicolon “and the materials and components thereof, other than sensors, electronics, or other items added to, and not normally associated with, clothing (and the materials and components thereof)”.

Pub. L. 109–364, § 842(a)(3)(A)Subsec. (b)(2), (3). , redesignated par. (3) as (2) and struck out former par. (2) which read as follows: “Specialty metals, including stainless steel flatware.”

Pub. L. 109–364, § 842(a)(3)(B)Subsec. (c). , struck out “or specialty metals (including stainless steel flatware)” after “subsection (b)(1)”.

Pub. L. 109–163, § 831Subsec. (d)(3). , inserted “, or for,” after “perishable foods by”.

Pub. L. 109–364, § 842(a)(3)(C)Subsec. (e). , struck out “Specialty Metals and” after “Exception for” in heading and “specialty metals or” after “procurement of” in introductory provisions.

Pub. L. 109–163, § 833(a)Subsec. (k). , added subsec. (k).

Pub. L. 108–136, § 826(1)2003—Subsec. (d). , struck out “Outside the United States” after “Procurements” in heading.

Pub. L. 108–136, § 826(2)Subsec. (d)(1). , inserted “or procurements of any item listed in subsection (b)(1)(A), (b)(2), or (b)(3) in support of contingency operations” after “combat operations”.

Pub. L. 108–136, § 826(3)Subsec. (d)(4). , added par. (4).

Pub. L. 108–136, § 827Exceptions for Certain Other Commodities and ItemsSubsec. (f). , substituted “.—Subsection (a) does not preclude the procurement of the following:

“(1) Foods”

Exception for Certain Foodsfor “.—Subsection (a) does not preclude the procurement of foods”, and added par. (2).

Statutory Notes and Related Subsidiaries

Effective Date of 2025 Amendment

Pub. L. 119–60, div. A, title VIII, § 831(c)Dec. 18, 2025139 Stat. 960

Dec. 18, 2025“This section and the amendments made by this section [amending this section] shall apply with respect to contracts entered into on or after the date of the enactment of this Act [].”

, , , provided that:

Effective and Termination Dates of 2024 Amendment

Pub. L. 118–159, div. A, title VIII, § 842(b)Dec. 23, 2024138 Stat. 1990

section 4862(b) of title 10January 1, 2026“Paragraphs (3) and (4) of , United States Code, as added by subsection (a), shall take effect on .”

, , , provided that:

Pub. L. 118–159, div. A, title VIII, § 842(c)Dec. 23, 2024138 Stat. 1991Jan. 1, 2029, , , provided that the amendment made by section 842(c) is effective .

Effective Date of 2023 Amendment

Pub. L. 118–31, div. A, title VIII, § 832(b)Dec. 22, 2023137 Stat. 337

Dec. 22, 2023“The amendments made by subsection (a) [amending this section] shall apply only with respect to agreements entered into on or after the date of the enactment of this Act [].”

, , , provided that:

Effective Date of 2021 Amendment

Pub. L. 117–81 Pub. L. 116–283 section 1701(a)(3) of Pub. L. 117–81 section 3001 of this titleAmendment by to take effect immediately after the amendments made by title XVIII of have taken effect, see , set out in a note preceding and note below.

Pub. L. 116–283Jan. 1, 2022section 1801(d) of Pub. L. 116–283 section 3001 of this titleAmendment by sections 1870(c)(2) and 1883(b)(2) of effective , with additional provisions for delayed implementation and applicability of existing law, see , set out as a note preceding .

Effective Date of 2019 Amendment

Pub. L. 116–92, div. A, title VIII, § 854(a)(2)Dec. 20, 2019133 Stat. 1512 Pub. L. 116–283, div. A, title XVIII, § 1870(c)(5)Jan. 1, 2021134 Stat. 4285

section 4862(b) of title 10Dec. 20, 2019“Paragraphs (3) and (4) of , United States Code, as added by paragraph (1), shall apply with respect to contracts entered into on or after the date occurring 1 year after the date of the enactment of this Act [].”

, , , as amended by , , , provided that:

Pub. L. 116–92, div. A, title VIII, § 854(a)(3)Dec. 20, 2019133 Stat. 1512Sept. 30, 2023, , , provided that the amendment made by section 854(a)(3) is effective .

Effective Date of 2006 Amendment

Pub. L. 109–364, div. A, title VIII, § 842(a)(4)(B)Oct. 17, 2006120 Stat. 2337

Oct. 17, 2006“The amendments made by paragraph (3) [amending this section] shall take effect on the date occurring 30 days after the date of the enactment of this Act [].”

, , , provided that:

Short Title

This section is popularly known as the “Berry Amendment”.

Rulemaking

Pub. L. 119–60, div. A, title VIII, § 831(b)Dec. 18, 2025139 Stat. 960

“The Secretary of Defense shall issue such rules necessary [sic] to carry out this section and the amendments made by this section [amending this section].”

, , , provided that:

Appropriations for United States Flags

Pub. L. 118–47, div. A, title VIII, § 8037Mar. 23, 2024138 Stat. 491

Pub. L. 118–47 section 4862(b) of title 10“None of the funds made available in this Act [div. A of , see Tables for classification], or any subsequent Act making appropriations for the Department of Defense, may be used for the purchase or manufacture of a flag of the United States unless such flags are treated as covered items under , United States Code.”

, , , provided that:

Similar provisions were contained in the following appropriation acts:

Pub. L. 117–328, div. C, title VIII, § 8037Dec. 29, 2022136 Stat. 4595, , .

Pub. L. 117–103, div. C, title VIII, § 8038Dec. 29, 2022136 Stat. 183, , .

Domestic Nonavailability Determinations List

Pub. L. 118–159, div. A, title VIII, § 848Dec. 23, 2024138 Stat. 1993

“(a)

In General .—

Dec. 23, 2024Not later than 180 days after the date of the enactment of this Act [], the Under Secretary of Defense for Acquisition and Sustainment shall develop and maintain a list of all domestic nonavailability determinations.

“(b)

Submission to Congress .—

Not later than 30 days after the Under Secretary for Acquisition and Sustainment develops the list required under subsection (a), and annually thereafter, the Under Secretary for Acquisition and Sustainment shall submit to Congress a list of all domestic nonavailability determinations made during the one year period ending on the date on which the Under Secretary for Acquisition and Sustainment submits such list.

“(c)

Plan for Informing Industry .—

Not later than 30 days after the Under Secretary of Defense for Acquisition and Sustainment develops the list required under subsection (a), the Under Secretary for Acquisition and Sustainment shall develop a plan for sharing such list with industry partners.

“(d)

Domestic Nonavailability Determination Defined .—

section 4862(c) of title 10In this section, the term ‘domestic nonavailability determination’ means a determination made for purposes of providing an availability exception pursuant to , United States Code.”

, , , provided that:

Periodic Audits of Contracting Compliance by Inspector General of Department of Defense

Pub. L. 113–66, div. A, title XVI, § 1601Dec. 26, 2013127 Stat. 941 Pub. L. 117–286, § 4(b)(29)Dec. 27, 2022136 Stat. 4346

“(a)

Requirement for Periodic Audits of Contracting Compliance .—

section 2533a of title 10 10 U.S.C. 4862The Inspector General of the Department of Defense shall conduct periodic audits of contracting practices and policies related to procurement under , United States Code [now ].

“(b)

Requirement for Additional Information in Semiannual Reports .—

section 408(f)(1) of title 5The Inspector General of the Department of Defense shall ensure that findings and other information resulting from audits conducted pursuant to subsection (a) are included in the semiannual report transmitted to congressional committees under , United States Code.”

, , , as amended by , , , provided that:

Fire Resistant Rayon Fiber

Pub. L. 110–181, div. A, title VIII, § 829Jan. 28, 2008122 Stat. 229 Pub. L. 111–383, div. A, title VIII, § 821(a)Jan. 7, 2011124 Stat. 4267 Pub. L. 112–81, div. A, title VIII, § 822Dec. 31, 2011125 Stat. 1502

“(a)

Authority To Procure .—

The Secretary of Defense may procure fire resistant rayon fiber for the production of uniforms that is manufactured in a foreign country referred to in subsection (d) if the Secretary determines either of the following:

“(1)

That fire resistant rayon fiber for the production of uniforms is not available from sources within the national technology and industrial base.

“(2)

That—

“(A)

procuring fire resistant rayon fiber manufactured from suppliers within the national technology and industrial base would result in sole-source contracts or subcontracts for the supply of fire resistant rayon fiber; and

“(B)

section 2304 of title 10 10 U.S.C. 3201 such sole-source contracts or subcontracts would not be in the best interests of the Government or consistent with the objectives of , United States Code [see et seq.].

“(b)

Submission to Congress .—

Not later than 30 days after making a determination under subsection (a), the Secretary shall submit to Congress a copy of the determination.

“(c)

Applicability to Subcontracts .—

The authority under subsection (a) applies with respect to subcontracts under Department of Defense contracts as well as to such contracts.

“(d)

Foreign Countries Covered .—

The authority under subsection (a) applies with respect to a foreign country that—

“(1)

section 2531 of title 10 10 U.S.C. 4851 is a party to a defense memorandum of understanding entered into under , United States Code [now ]; and

“(2)

does not discriminate against defense items produced in the United States to a greater degree than the United States discriminates against defense items produced in that country.

“(e)

National Technology and Industrial Base Defined .—

section 2500 of title 10 10 U.S.C. 4801In this section, the term ‘national technology and industrial base’ has the meaning given that term in , United States Code [now ].”

, , , as amended by , , ; , , , provided that:

Training for Defense Acquisition Workforce on the Requirements of the Berry Amendment

Pub. L. 109–163, div. A, title VIII, § 832Jan. 6, 2006119 Stat. 3388

“(a)

Training During Fiscal Year 2006.—

section 2533a of title 10 10 U.S.C. 4862The Secretary of Defense shall ensure that each member of the defense acquisition workforce who participates personally and substantially in the acquisition of textiles on a regular basis receives training during fiscal year 2006 on the requirements of , United States Code [now ] (commonly referred to as the ‘Berry Amendment’), and the regulations implementing that section.

“(b)

Inclusion of Information in New Training Programs .—

Jan. 6, 2006The Secretary shall ensure that any training program developed or implemented after the date of the enactment of this Act [] for members of the defense acquisition workforce who participate personally and substantially in the acquisition of textiles on a regular basis includes comprehensive information on the requirements described in subsection (a).”

, , , provided that:

Application of Exception to Seafood Products

Pub. L. 108–287, title VIII, § 8118Aug. 5, 2004118 Stat. 998 Pub. L. 113–291, div. A, title X, § 1071(b)(4)Dec. 19, 2014128 Stat. 3506 Pub. L. 116–283, div. A, title XVIII, § 1870(c)(6)(B)Jan. 1, 2021134 Stat. 4285

section 4862(f) of title 10 section 1906 of title 41“Notwithstanding any other provision of law, , United States Code, shall hereafter not apply to any fish, shellfish, or seafood product. This section applies to contracts and subcontracts for the procurement of commercial items notwithstanding , United States Code.”

, , , as amended by , , ; , , , provided that: