10 USC Subtitle A, PART V, Subpart I, CHAPTER 385, SUBCHAPTER II: LIMITATIONS ON PROCUREMENT OF CERTAIN ITEMS FROM FOREIGN SOURCES

From Title 10—ARMED FORCESSubtitle A—General Military LawPART V—ACQUISITIONSubpart I—Defense Industrial BaseCHAPTER 385—OTHER TECHNOLOGY BASE POLICIES AND PROGRAMS

SUBCHAPTER II—LIMITATIONS ON PROCUREMENT OF CERTAIN ITEMS FROM FOREIGN SOURCES

Sec.

4861.

Determinations of public interest under chapter 83 of title 41.

4862.

Requirement to buy certain articles from American sources; exceptions.

4863.

Requirement to buy strategic materials critical to national security from American sources; exceptions.

4864.

Miscellaneous limitations on the procurement of goods other than United States goods.

§4861. Determinations of public interest under chapter 83 of title 41

(a) In determining under section 8302 of title 41 whether application of chapter 83 of such title is inconsistent with the public interest, the Secretary of Defense shall consider the following:

(1) The bids or proposals of small business firms in the United States which have offered to furnish American goods.

(2) The bids or proposals of all other firms in the United States which have offered to furnish American goods.

(3) The United States balance of payments.

(4) The cost of shipping goods which are other than American goods.

(5) Any duty, tariff, or surcharge which may enter into the cost of using goods which are other than American goods.

(6) A need to ensure that the Department of Defense has access to advanced, state-of-the-art commercial technology.

(7) The need to protect the national technology and industrial base, to preserve and enhance the national technology employment base, and to provide for a defense mobilization base.

(8) A need to ensure that application of different rules of origin for United States end items and foreign end items does not result in an award to a firm other than a firm providing a product produced in the United States.

(9) Any need—

(A) to maintain the same source of supply for spare and replacement parts for an end item that qualifies as an American good; or

(B) to maintain the same source of supply for spare and replacement parts in order not to impair integration of the military and commercial industrial base.

(10) The national security interests of the United States.

(b) In this section, the term "goods which are other than American goods" means—

(1) an end product that is not mined, produced, or manufactured in the United States; or

(2) an end product that is manufactured in the United States but which includes components mined, produced, or manufactured outside the United States the aggregate cost of which exceeds the aggregate cost of the components of such end product that are mined, produced, or manufactured in the United States.

(Added Pub. L. 100–370, §3(a)(1), July 19, 1988, 102 Stat. 855, §2501; renumbered §2506, Pub. L. 100–456, div. A, title VIII, §821(b)(1)(A), Sept. 29, 1988, 102 Stat. 2014; renumbered §2533, Pub. L. 102–484, div. D, title XLII, §4202(a), Oct. 23, 1992, 106 Stat. 2659; amended Pub. L. 103–337, div. A, title VIII, §812(a), (b)(1), Oct. 5, 1994, 108 Stat. 2815, 2816; Pub. L. 104–106, div. D, title XLIII, §4321(b)(20), Feb. 10, 1996, 110 Stat. 673; Pub. L. 105–85, div. A, title X, §1073(a)(54), Nov. 18, 1997, 111 Stat. 1903; Pub. L. 111–350, §5(b)(37), Jan. 4, 2011, 124 Stat. 3845; Pub. L. 113–291, div. A, title X, §1071(a)(9), Dec. 19, 2014, 128 Stat. 3505; renumbered §4861, Pub. L. 116–283, div. A, title XVIII, §1870(c)(2), Jan. 1, 2021, 134 Stat. 4285.)

Historical and Revision Notes

Section is based on Pub. L. 93–365, title VII, §707, Aug. 5, 1974, 88 Stat. 406.

Editorial Notes

Amendments

2021—Pub. L. 116–283 renumbered section 2533 of this title as this section.

2014—Subsec. (a). Pub. L. 113–291 substituted "chapter 83 of such title" for "such Act" in introductory provisions.

2011—Pub. L. 111–350, §5(b)(37)(A), substituted "chapter 83 of title 41" for "the Buy American Act" in section catchline.

Subsec. (a). Pub. L. 111–350, §5(b)(37)(B), substituted "section 8302 of title 41" for "section 2 of the Buy American Act (41 U.S.C. 10a)" in introductory provisions.

1997—Subsec. (a). Pub. L. 105–85 substituted "(41 U.S.C. 10a)" for "(41 U.S.C. 10a))".

1996—Subsec. (a). Pub. L. 104–106 substituted "the Buy American Act (41 U.S.C. 10a)) whether application of such Act" for "title III of the Act of March 3, 1993 (41 U.S.C. 10a), popularly known as the 'Buy American Act', whether application of title III of such Act".

1994—Pub. L. 103–337, §812(b)(1), substituted "Determinations of public interest under the Buy American Act" for "Limitation on use of funds: procurement of goods which are other than American goods" as section catchline.

Subsec. (a). Pub. L. 103–337, §812(a)(1), added subsec. (a) and struck out former subsec. (a) which read as follows: "Funds appropriated to the Department of Defense may not be obligated under a contract for procurement of goods which are other than American goods (as defined in subsection (c)) unless adequate consideration is given to the following:

"(1) The bids or proposals of firms located in labor surplus areas in the United States (as designated by the Department of Labor) which have offered to furnish American goods.

"(2) The bids or proposals of small business firms in the United States which have offered to furnish American goods.

"(3) The bids or proposals of all other firms in the United States which have offered to furnish American goods.

"(4) The United States balance of payments.

"(5) The cost of shipping goods which are other than American goods.

"(6) Any duty, tariff, or surcharge which may enter into the cost of using goods which are other than American goods."

Subsecs. (b), (c). Pub. L. 103–337, §812(a), redesignated subsec. (c) as (b) and struck out former subsec. (b) which read as follows: "Consideration of the matters referred to in paragraphs (1) through (6) of subsection (a) shall be given under regulations of the Secretary of Defense and subject to the determinations and exceptions contained in title III of the Act of March 3, 1933 (41 U.S.C. 10a, 10b), popularly known as the 'Buy American Act'."

1992—Pub. L. 102–484 renumbered section 2506 of this title as section 2533.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

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

Effective Date of 1996 Amendment

For effective date and applicability of amendment by Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set out as a note under section 2220 of this title.

§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);

(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), (4) Repealed. Pub. L. 116–92, div. A, title VIII, §854(a)(3), Dec. 20, 2019, 133 Stat. 1512.]

(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 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) 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 section 3204(a)(2) of this title, 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) any such agreement with a foreign government complies, where applicable, with the requirements of section 36 of the Arms Export Control Act (22 U.S.C. 2776) and with section 2457 of this title.

(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.—Subsection (a) does not apply to items purchased for resale purposes in commissaries, exchanges, or nonappropriated fund instrumentalities operated by the Department of Defense.

(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.

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

(j) Geographic Coverage.—In this section, the term "United States" includes the possessions of the United States.

(k) Notification Required Within 7 Days After Contract Award If Certain Exceptions Applied.—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).

Editorial Notes

Amendments

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

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

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

2021—Pub. L. 116–283, §1870(c)(2), renumbered section 2533a of this title as this section.

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

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

Subsec. (h). Pub. L. 116–283, §817, 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 section 2304(g) of this title."

2019—Subsec. (b)(3), (4). Pub. L. 116–92, §854(a)(3), 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).

2018—Subsec. (i). Pub. L. 115–232 substituted "Products" for "Items" in heading and "commercial products" for "commercial items" in text.

2013—Subsec. (k). Pub. L. 112–239 substituted "FedBizOpps.gov" for "FedBizOps.gov".

2011—Subsec. (b)(1)(C). Pub. L. 112–81 inserted "(and the structural components thereof)" after "tents".

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

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

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

2006—Subsec. (b)(1)(B). Pub. L. 109–163, §833(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)".

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

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

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

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

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

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

Subsec. (d)(1). Pub. L. 108–136, §826(2), 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".

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

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

"(1) Foods"

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

Statutory Notes and Related Subsidiaries

Effective Date of 2023 Amendment

Pub. L. 118–31, div. A, title VIII, §832(b), Dec. 22, 2023, 137 Stat. 337, provided that: "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 [Dec. 22, 2023]."

Effective Date of 2021 Amendment

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

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

Effective Date of 2019 Amendment

Pub. L. 116–92, div. A, title VIII, §854(a)(2), Dec. 20, 2019, 133 Stat. 1512, as amended by Pub. L. 116–283, div. A, title XVIII, §1870(c)(5), Jan. 1, 2021, 134 Stat. 4285, provided that: "Paragraphs (3) and (4) of section 4862(b) of title 10, 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 [Dec. 20, 2019]."

Pub. L. 116–92, div. A, title VIII, §854(a)(3), Dec. 20, 2019, 133 Stat. 1512, provided that the amendment made by section 854(a)(3) is effective Sept. 30, 2023.

Effective Date of 2006 Amendment

Pub. L. 109–364, div. A, title VIII, §842(a)(4)(B), Oct. 17, 2006, 120 Stat. 2337, provided that: "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 [Oct. 17, 2006]."

Short Title

This section is popularly known as the "Berry Amendment".

Appropriations for United States Flags

Pub. L. 118–47, div. A, title VIII, §8037, Mar. 23, 2024, 138 Stat. 491, provided that: "None of the funds made available in this Act [div. A of Pub. L. 118–47, 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 section 4862(b) of title 10, United States Code."

Similar provisions were contained in the following appropriation acts:

Pub. L. 117–328, div. C, title VIII, §8037, Dec. 29, 2022, 136 Stat. 4595.

Pub. L. 117–103, div. C, title VIII, §8038, Dec. 29, 2022, 136 Stat. 183.

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

Pub. L. 113–66, div. A, title XVI, §1601, Dec. 26, 2013, 127 Stat. 941, as amended by Pub. L. 117–286, §4(b)(29), Dec. 27, 2022, 136 Stat. 4346, provided that:

"(a) Requirement for Periodic Audits of Contracting Compliance.—The Inspector General of the Department of Defense shall conduct periodic audits of contracting practices and policies related to procurement under section 2533a of title 10, United States Code [now 10 U.S.C. 4862].

"(b) Requirement for Additional Information in Semiannual Reports.—The 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 section 408(f)(1) of title 5, United States Code."

Fire Resistant Rayon Fiber

Pub. L. 110–181, div. A, title VIII, §829, Jan. 28, 2008, 122 Stat. 229, as amended by Pub. L. 111–383, div. A, title VIII, §821(a), Jan. 7, 2011, 124 Stat. 4267; Pub. L. 112–81, div. A, title VIII, §822, Dec. 31, 2011, 125 Stat. 1502, provided that:

"(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) such sole-source contracts or subcontracts would not be in the best interests of the Government or consistent with the objectives of section 2304 of title 10, United States Code [see 10 U.S.C. 3201 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) is a party to a defense memorandum of understanding entered into under section 2531 of title 10, United States Code [now 10 U.S.C. 4851]; 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.—In this section, the term 'national technology and industrial base' has the meaning given that term in section 2500 of title 10, United States Code [now 10 U.S.C. 4801]."

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

Pub. L. 109–163, div. A, title VIII, §832, Jan. 6, 2006, 119 Stat. 3388, provided that:

"(a) Training During Fiscal Year 2006.—The 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 section 2533a of title 10, United States Code [now 10 U.S.C. 4862] (commonly referred to as the 'Berry Amendment'), and the regulations implementing that section.

"(b) Inclusion of Information in New Training Programs.—The Secretary shall ensure that any training program developed or implemented after the date of the enactment of this Act [Jan. 6, 2006] 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)."

Application of Exception to Seafood Products

Pub. L. 108–287, title VIII, §8118, Aug. 5, 2004, 118 Stat. 998, as amended by Pub. L. 113–291, div. A, title X, §1071(b)(4), Dec. 19, 2014, 128 Stat. 3506; Pub. L. 116–283, div. A, title XVIII, §1870(c)(6)(B), Jan. 1, 2021, 134 Stat. 4285, provided that: "Notwithstanding any other provision of law, section 4862(f) of title 10, 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 section 1906 of title 41, United States Code."

§4863. Requirement to buy strategic materials critical to national security from American sources; exceptions

(a) Requirement.—Except as provided in subsections (b) through (m), the acquisition by the Department of Defense of the following items is prohibited:

(1) The following types of end items, or components thereof, containing a specialty metal not melted or produced in the United States: aircraft, missile and space systems, ships, tank and automotive items, weapon systems, or ammunition.

(2) A specialty metal that is not melted or produced in the United States and that is to be purchased directly by the Department of Defense or a prime contractor of the Department.

(b) Availability Exception.—(1) Subsection (a) does not apply to the extent that the Secretary of Defense or the Secretary of the military department concerned determines that compliant specialty metal of satisfactory quality and sufficient quantity, and in the required form, cannot be procured as and when needed. For purposes of the preceding sentence, the term "compliant specialty metal" means specialty metal melted or produced in the United States.

(2) This subsection applies to prime contracts and subcontracts at any tier under such contracts.

(1) Acquisitions outside the United States in support of combat operations or in support of contingency operations.

(2) Acquisitions for which the use of procedures other than competitive procedures has been approved on the basis of section 3204(a)(2) of this title, relating to unusual and compelling urgency of need.

(d) Exception Relating to Agreements With Foreign Governments.—Subsection (a)(1) does not preclude the acquisition of a specialty metal if—

(1) the acquisition is necessary—

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

(e) Exception for Commissaries, Exchanges, and Other Nonappropriated Fund Instrumentalities.—Subsection (a) does not apply to items purchased for resale purposes in commissaries, exchanges, and nonappropriated fund instrumentalities operated by the Department of Defense.

(f) Exception for Small Purchases.—Subsection (a) does not apply to acquisitions in amounts not greater than the simplified acquisition threshold referred to in section 3205 of this title.

(g) Exception for Purchases of Electronic Components.—Subsection (a) does not apply to acquisitions of electronic components, unless the Secretary of Defense, upon the recommendation of the Strategic and Critical Materials Board of Directors pursuant to section 10 of the Strategic and Critical Materials Stock Piling Act (50 U.S.C. 98h–1), determines that the domestic availability of a particular electronic component is critical to national security.

(h) Applicability to Acquisitions of Commercial Products.—(1) Except as provided in paragraphs (2) and (3), this section applies to acquisitions of commercial products, notwithstanding sections 1906 and 1907 of title 41.

(2) This section does not apply to contracts or subcontracts for the acquisition of commercially available off-the-shelf items, as defined in section 104 of title 41, other than—

(A) contracts or subcontracts for the acquisition of specialty metals, including mill products, such as bar, billet, slab, wire, plate and sheet, that have not been incorporated into end items, subsystems, assemblies, or components;

(B) contracts or subcontracts for the acquisition of forgings or castings of specialty metals, unless such forgings or castings are incorporated into commercially available off-the-shelf end items, subsystems, or assemblies;

(C) contracts or subcontracts for commercially available high performance magnets unless such high performance magnets are incorporated into commercially available off-the-shelf-end items or subsystems; and

(D) contracts or subcontracts for commercially available off-the-shelf fasteners, unless such fasteners are—

(i) incorporated into commercially available off-the-shelf end items, subsystems, assemblies, or components; or

(ii) purchased as provided in paragraph (3).

(3) This section does not apply to fasteners that are commercial products that are purchased under a contract or subcontract with a manufacturer of such fasteners, if the manufacturer has certified that it will purchase, during the relevant calendar year, an amount of domestically melted specialty metal, in the required form, for use in the production of such fasteners for sale to the Department of Defense and other customers, that is not less than 50 percent of the total amount of the specialty metal that it will purchase to carry out the production of such fasteners.

(i) Exceptions for Purchases of Specialty Metals Below Minimum Threshold.—(1) Notwithstanding subsection (a), the Secretary of Defense or the Secretary of a military department may accept delivery of an item containing specialty metals that were not melted in the United States if the total amount of noncompliant specialty metals in the item does not exceed 2 percent of the total weight of specialty metals in the item.

(2) This subsection does not apply to high performance magnets.

(j) Streamlined Compliance for Commercial Derivative Military Articles.—(1) Subsection (a) shall not apply to an item acquired under a prime contract if the Secretary of Defense or the Secretary of a military department determines that—

(A) the item is a commercial derivative military article; and

(B) the contractor certifies that the contractor and its subcontractors have entered into a contractual agreement, or agreements, to purchase an amount of domestically melted specialty metal in the required form, for use during the period of contract performance in the production of the commercial derivative military article and the related commercial article, that is not less than the greater of—

(i) an amount equivalent to 120 percent of the amount of specialty metal that is required to carry out the production of the commercial derivative military article (including the work performed under each subcontract); or

(ii) an amount equivalent to 50 percent of the amount of specialty metal that is purchased by the contractor and its subcontractors for use during such period in the production of the commercial derivative military article and the related commercial article.

(2) For the purposes of this subsection, the amount of specialty metal that is required to carry out the production of the commercial derivative military article includes specialty metal contained in any item, including commercially available off-the-shelf items, incorporated into such commercial derivative military article.

(k) National Security Waiver.—(1) Notwithstanding subsection (a), the Secretary of Defense may accept the delivery of an end item containing noncompliant materials if the Secretary determines in writing that acceptance of such end item is necessary to the national security interests of the United States.

(2) A written determination under paragraph (1)—

(A) may not be delegated below the level of the Deputy Secretary of Defense or the Under Secretary of Defense for Acquisition and Sustainment;

(B) shall specify the quantity of end items to which the waiver applies and the time period over which the waiver applies; and

(C) shall be provided to the congressional defense committees prior to making such a determination (except that in the case of an urgent national security requirement, such certification may be provided to the defense committees up to 7 days after it is made).

(3)(A) In any case in which the Secretary makes a determination under paragraph (1), the Secretary shall determine whether or not the noncompliance was knowing and willful.

(B) If the Secretary determines that the noncompliance was not knowing or willful, the Secretary shall ensure that the contractor or subcontractor responsible for the noncompliance develops and implements an effective plan to ensure future compliance.

(i) require the development and implementation of a plan to ensure future compliance; and

(ii) consider suspending or debarring the contractor or subcontractor until such time as the contractor or subcontractor has effectively addressed the issues that lead to such noncompliance.

(l) Specialty Metal Defined.—In this section, the term "specialty metal" means any of the following:

(1) Steel—

(A) with a maximum alloy content exceeding one or more of the following limits: manganese, 1.65 percent; silicon, 0.60 percent; or copper, 0.60 percent; or

(B) containing more than 0.25 percent of any of the following elements: aluminum, chromium, cobalt, columbium, molybdenum, nickel, titanium, tungsten, or vanadium.

(2) Metal alloys consisting of nickel, iron-nickel, and cobalt base alloys containing a total of other alloying metals (except iron) in excess of 10 percent.

(3) Titanium and titanium alloys.

(4) Zirconium and zirconium base alloys.

(m) Additional Definitions.—In this section:

(1) The term "United States" includes possessions of the United States.

(2) The term "component" has the meaning provided in section 105 of title 41.

(3) The term "acquisition" has the meaning provided in section 131 of title 41.

(4) The term "required form" shall not apply to end items or to their components at any tier. The term "required form" means in the form of mill product, such as bar, billet, wire, slab, plate or sheet, and in the grade appropriate for the production of—

(A) a finished end item delivered to the Department of Defense; or

(B) a finished component assembled into an end item delivered to the Department of Defense.

(5) The term "commercially available off-the-shelf", has the meaning provided in section 104 of title 41.

(6) The term "assemblies" means items forming a portion of a system or subsystem that can be provisioned and replaced as an entity and which incorporates multiple, replaceable parts.

(7) The term "commercial derivative military article" means an item procured by the Department of Defense that is or will be produced using the same production facilities, a common supply chain, and the same or similar production processes that are used for the production of articles predominantly used by the general public or by nongovernmental entities for purposes other than governmental purposes.

(8) The term "subsystem" means a functional grouping of items that combine to perform a major function within an end item, such as electrical power, attitude control, and propulsion.

(9) The term "end item" means the final production product when assembled or completed, and ready for issue, delivery, or deployment.

(10) The term "subcontract" includes a subcontract at any tier.

(Added Pub. L. 109–364, div. A, title VIII, §842(a)(1), Oct. 17, 2006, 120 Stat. 2335, §2533b; amended Pub. L. 110–181, div. A, title VIII, §804(a)–(f), Jan. 28, 2008, 122 Stat. 208–211; Pub. L. 111–350, §5(b)(39), Jan. 4, 2011, 124 Stat. 3845; Pub. L. 111–383, div. A, title X, §1075(f)(2), Jan. 7, 2011, 124 Stat. 4376; Pub. L. 113–291, div. A, title X, §1071(a)(10), Dec. 19, 2014, 128 Stat. 3505; Pub. L. 115–232, div. A, title VIII, §837(c), Aug. 13, 2018, 132 Stat. 1875; Pub. L. 116–92, div. A, title IX, §902(77), Dec. 20, 2019, 133 Stat. 1552; renumbered §4863 and amended Pub. L. 116–283, div. A, title XVIII, §§1870(c)(2), 1883(b)(2), Jan. 1, 2021, 134 Stat. 4285, 4294; Pub. L. 117–81, div. A, title XVII, §1701(d)(18), Dec. 27, 2021, 135 Stat. 2138; Pub. L. 117–263, div. A, title XIV, §1411(d)(2)(A), Dec. 23, 2022, 136 Stat. 2871; Pub. L. 118–31, div. A, title VIII, §833(a), Dec. 22, 2023, 137 Stat. 337.)

Amendment of Section

Pub. L. 118–31, div. A, title VIII, §833, Dec. 22, 2023, 137 Stat. 337, provided that, effective 24 months after Dec. 22, 2023, this section is amended as follows:

(1) in subsection (d), by striking "; and" in paragraph (1)(B) and inserting a semicolon, by striking the period at the end of paragraph (2) and inserting "; and", and by adding at the end the following new paragraph:

"(3) any specialty metal procured as mill product or incorporated into a component other than an end item pursuant to this subsection shall be melted or produced—

"(A) in the United States;

"(B) in the country from which the mill product or component is procured; or

"(C) in another country covered under subparagraph (1)(B)."; and

(2) by redesignating subsections (l) and (m) as subsections (m) and (n), respectively, and by inserting after subsection (k) the following new subsection:

(l) Provenance of Aerospace-grade Metals.—(1) The Secretary of Defense shall require that, for any system or component for which the provenance of materials must be tracked to comply with safety regulations concerning flight, the supplier of such system or component shall inform the government if any of the materials were known to be manufactured or processed in—

(A) China;

(B) Iran;

(C) North Korea; or

(D) Russia.

(2) Not later than March 31 of each year, the Secretary of Defense shall submit to the congressional defense committees a report indicating how much specialty metal has been acquired and placed into systems of the Department of Defense from the countries described in paragraph (1).

See 2023 Amendment notes below.

Editorial Notes

Amendments

2023—Subsec. (d)(3). Pub. L. 118–31, §833(a)(1), added par. (3).

Subsecs. (l) to (n). Pub. L. 118–31, §833(a)(2), (3), added subsec. (l) and redesignated former subsecs. (l) and (m) as (m) and (n), respectively.

2022—Subsec. (g). Pub. L. 117–263 substituted "Strategic and Critical Materials Board of Directors pursuant to section 10 of the Strategic and Critical Materials Stock Piling Act (50 U.S.C. 98h–1)" for "Strategic Materials Protection Board pursuant to section 187 of this title".

2021—Pub. L. 116–283, §1870(c)(2), renumbered section 2533b of this title as this section.

Subsec. (c)(2). Pub. L. 117–81, §1701(d)(18)(A), which directed the substitution of "section 3204(a)(2)" for "section 2304(c)(2)", could not be executed because of the intervening amendment by Pub. L. 116–283, §1883(b)(2). See note below.

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

Subsec. (f). Pub. L. 117–81, §1701(d)(18)(B), which directed the substitution of "section 3205" for "section 2304(g)", could not be executed because of the intervening amendment by Pub. L. 116–283, §1883(b)(2). See note below.

Pub. L. 116–283, §1883(b)(2), substituted "section 3205" for "section 2304(g)".

2019—Subsec. (k)(2)(A). Pub. L. 116–92 substituted "Under Secretary of Defense for Acquisition and Sustainment" for "Under Secretary of Defense for Acquisition, Technology, and Logistics".

2018—Subsec. (h). Pub. L. 115–232, §837(c)(1), substituted "Products" for "Items" in heading.

Subsec. (h)(1), (3). Pub. L. 115–232, §837(c)(2), substituted "commercial products" for "commercial items".

2014—Subsec. (h)(1). Pub. L. 113–291, §1071(a)(10)(A)(i), substituted "sections 1906 and 1907 of title 41" for "sections 34 and 35 of the Office of Federal Procurement Policy Act (41 U.S.C. 430 and 431)".

Subsec. (h)(2). Pub. L. 113–291, §1071(a)(10)(A)(ii), substituted "section 104 of title 41" for "section 35(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 431(c))" in introductory provisions.

Subsec. (m)(2). Pub. L. 113–291, §1071(a)(10)(B)(i), substituted "section 105 of title 41" for "section 4 of the Office of Federal Procurement Policy Act (41 U.S.C. 403)".

Subsec. (m)(3). Pub. L. 113–291, §1071(a)(10)(B)(ii), substituted "section 131 of title 41" for "section 4 of the Office of Federal Procurement Policy Act (41 U.S.C. 403)".

Subsec. (m)(5). Pub. L. 113–291, §1071(a)(10)(B)(iii), substituted "section 104 of title 41" for "section 35(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 431(c))".

2011—Subsec. (a)(2). Pub. L. 111–383, §1075(f)(2)(A), made technical amendment to directory language of Pub. L. 110–181, §804(a)(3). See 2008 Amendment note below.

Subsec. (h). Pub. L. 111–350, §5(b)(39)(A), which directed substitution of "section 1906 of title 41" for "section 34 of the Office of Federal Procurement Policy Act (41 U.S.C. 430)", could not be executed because the words "section 34 of the Office of Federal Procurement Policy Act (41 U.S.C. 430)" did not appear in text.

Subsec. (j). Pub. L. 111–350, §5(b)(39)(B), which directed substitution of "section 105 of title 41" for "section 4 of the Office of Federal Procurement Policy Act (41 U.S.C. 403)" in subsec. (j), could not be executed because the words "section 4 of the Office of Federal Procurement Policy Act (41 U.S.C. 403)" did not appear in subsec. (j) after the amendment by Pub. L. 110–181, §804(d).

Subsec. (m)(3) to (10). Pub. L. 111–383, §1075(f)(2)(B), made technical amendment to directory language of Pub. L. 110–181, §804(e). See 2008 Amendment note below.

2008—Subsec. (a). Pub. L. 110–181, §804(a)(1), substituted "Except as provided in subsections (b) through (m), the acquisition by the Department of Defense of the following items is prohibited:" for "Except as provided in subsections (b) through (j), funds appropriated or otherwise available to the Department of Defense may not be used for procurement of—" in introductory provisions.

Subsec. (a)(1). Pub. L. 110–181, §804(a)(2), substituted "The following" for "the following" and substituted period for "; or" at end.

Subsec. (a)(2). Pub. L. 110–181, §804(a)(3), as amended by Pub. L. 111–383, §1075(f)(2)(A), substituted "A specialty" for "a specialty".

Subsec. (c). Pub. L. 110–181, §804(f)(1), substituted "Acquisitions" for "Procurements" in heading and pars. (1) and (2).

Subsec. (d). Pub. L. 110–181, §804(f)(2), substituted "acquisition" for "procurement" in introductory provisions and par. (1).

Subsec. (f). Pub. L. 110–181, §804(f)(3), substituted "acquisitions" for "procurements".

Subsec. (g). Pub. L. 110–181, §804(c), (f)(3), substituted "acquisitions" for "procurements" and "electronic components, unless the Secretary of Defense, upon the recommendation of the Strategic Materials Protection Board pursuant to section 187 of this title, determines that the domestic availability of a particular electronic component is critical to national security." for "commercially available electronic components whose specialty metal content is de minimis in value compared to the overall value of the lowest level electronic component produced that contains such specialty metal."

Subsec. (h). Pub. L. 110–181, §804(b), amended heading and text generally. Prior to amendment, text read as follows: "This section applies to procurements of commercial items notwithstanding section 34 of the Office of Federal Procurement Policy Act (41 U.S.C. 430)."

Subsecs. (i) to (m). Pub. L. 110–181, §804(d), added subsecs. (i) to (k) and redesignated former subsecs. (i) and (j) as (l) and (m), respectively.

Subsec. (m)(3) to (10). Pub. L. 110–181, §804(e), as amended by Pub. L. 111—383, §1075(f)(2)(B), added pars. (3) to (10).

Statutory Notes and Related Subsidiaries

Effective Date of 2023 Amendment

Pub. L. 118–31, div. A, title VIII, §833(b), Dec. 22, 2023, 137 Stat. 337, provided that: "Subsection (a) [amending this section] shall take effect on the date that is 24 months after the date of the enactment of this Act [Dec. 22, 2023]."

Effective Date of 2021 Amendment

Effective Date of 2011 Amendment

Pub. L. 111–383, div. A, title X, §1075(f)(2), Jan. 7, 2011, 124 Stat. 4376, provided that the amendment made by section 1075(f)(2) is effective as of January 28, 2008, and as if included in Public Law 110–181 as enacted.

Effective Date

Pub. L. 109–364, div. A, title VIII, §842(a)(4)(A), Oct. 17, 2006, 120 Stat. 2337, provided that: "Section 2533b of title 10, United States Code [now 10 U.S.C. 4863], as added by paragraph (1), shall apply with respect to contracts entered into after the date occurring 30 days after the date of the enactment of this Act [Oct. 17, 2006]."

Regulations

Pub. L. 110–181, div. A, title VIII, §804(g), Jan. 28, 2008, 122 Stat. 211, provided that: "Not later than 120 days after the date of the enactment of this Act [Jan. 28, 2008], the Secretary of Defense shall prescribe regulations on the implementation of this section [amending this section and enacting provisions formerly set out as a note under section 2533b] and the amendments made by this section, including specific guidance on how thresholds established in subsections (h)(3), (i) and (j) of section 2533b of title 10, United States Code [now 10 U.S.C. 4863], as amended by this section, should be implemented."

Requirements Relating to Waivers of Certain Domestic Source Limitations Relating to Specialty Metals

Pub. L. 110–181, div. A, title VIII, §884, Jan. 28, 2008, 122 Stat. 264, provided that:

"(a) Notice Requirement.—At least 30 days prior to making a domestic nonavailability determination pursuant to section 2533b(b) of title 10, United States Code [now 10 U.S.C. 4863(b)], that would apply to more than one contract of the Department of Defense, the Secretary of Defense shall, to the maximum extent practicable and in a manner consistent with the protection of national security information and confidential business information—

"(1) publish a notice on the website maintained by the General Services Administration known as FedBizOpps.gov (or any successor site) of the Secretary's intent to make the domestic nonavailability determination; and

"(2) solicit information relevant to such notice from interested parties, including producers of specialty metal mill products.

"(b) Determination.—(1) The Secretary shall take into consideration all information submitted pursuant to subsection (a) in making a domestic nonavailability determination pursuant to section 2533b(b) of title 10, United States Code [now 10 U.S.C. 4863(b)], that would apply to more than one contract of the Department of Defense, and may also consider other relevant information that cannot be made part of the public record consistent with the protection of national security information and confidential business information.

"(2) The Secretary shall ensure that any such determination and the rationale for such determination is made publicly available to the maximum extent consistent with the protection of national security information and confidential business information."

§4864. Miscellaneous limitations on the procurement of goods other than United States goods

(a) Limitation on Certain Procurements.—The Secretary of Defense may procure any of the following items only if the manufacturer of the item satisfies the requirements of subsection (b):

(1) Buses.—Multipassenger motor vehicles (buses).

(2) Components for naval vessels.—The following components of vessels, to the extent they are unique to marine applications:

(A) Gyrocompasses.

(B) Electronic navigation chart systems.

(D) Propulsion and machinery control systems.

(E) Totally enclosed lifeboats.

(F) Welded shipboard anchor and mooring chain.

(3) Components for auxiliary ships.—Subject to subsection (k), large medium-speed diesel engines.

(4) Components for t–ao 205 and t–arc class vessels.—The following components of T–AO 205 and T–ARC class vessels:

(A) Auxiliary equipment, including pumps, for all shipboard services.

(B) Propulsion system components, including engines, reduction gears, and propellers.

(D) Spreaders for shipboard cranes.

(5) Star tracker.—A star tracker used in a satellite weighing more than 400 pounds whose principal purpose is to support the national security, defense, or intelligence needs of the United States Government.

(b) Manufacturer in the National Technology and Industrial Base.—(1) Except as provided in paragraph (2), a manufacturer meets the requirements of this subsection if the manufacturer is part of the national technology and industrial base.

(2) A manufacturer of welded shipboard anchor and mooring chain for naval vessels meets the requirements of this subsection if the manufacturer is part of the national technology and industrial base.

(c) Applicability to Certain Items.—Subsection (a) does not apply to a procurement of spare or repair parts needed to support components for naval vessels produced or manufactured outside the United States.

(d) Waiver Authority.—The Secretary of Defense may waive the limitation in subsection (a) with respect to the procurement of an item listed in that subsection if the Secretary determines that any of the following apply:

(1) Application of the limitation would cause unreasonable costs or delays to be incurred.

(2) United States producers of the item would not be jeopardized by competition from a foreign country, and that country 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.

(3) Application of the limitation would impede cooperative programs entered into between the Department of Defense and a foreign country, or would impede the reciprocal procurement of defense items under a memorandum of understanding providing for reciprocal procurement of defense items that is entered into under section 4851 of this title, and that country 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.

(4) Satisfactory quality items manufactured by an entity that is part of the national technology and industrial base (as defined in section 4801(1) of this title) are not available.

(5) Application of the limitation would result in the existence of only one source for the item that is an entity that is part of the national technology and industrial base (as defined in section 4801(1) of this title).

(6) The procurement is for an amount less than the simplified acquisition threshold and simplified purchase procedures are being used.

(7) Application of the limitation is not in the national security interests of the United States.

(8) Application of the limitation would adversely affect a United States company.

(e) Sonobuoys.—

(1) Limitation.—The Secretary of Defense may not procure a sonobuoy manufactured in a foreign country if United States firms that manufacture sonobuoys are not permitted to compete on an equal basis with foreign manufacturing firms for the sale of sonobuoys in that foreign country.

(2) Waiver authority.—The Secretary may waive the limitation in paragraph (1) with respect to a particular procurement of sonobuoys if the Secretary determines that such procurement is in the national security interests of the United States.

(3) Definition.—In this subsection, the term "United States firm" has the meaning given such term in section 4852(d)(1) of this title.

(f) Principle of Construction With Future Laws.—A provision of law may not be construed as modifying or superseding the provisions of this section, or as requiring funds to be limited, or made available, by the Secretary of Defense to a particular domestic source by contract, unless that provision of law—

(1) specifically refers to this section;

(2) specifically states that such provision of law modifies or supersedes the provisions of this section; and

(3) specifically identifies the particular domestic source involved and states that the contract to be awarded pursuant to such provision of law is being awarded in contravention of this section.

(g) Inapplicability to Contracts under Simplified Acquisition Threshold.—This section does not apply to a contract or subcontract for an amount that does not exceed the simplified acquisition threshold.

(h) Implementation of Naval Vessel Component Limitation.—In implementing subsection (a)(2), the Secretary of Defense—

(1) may not use contract clauses or certifications; and

(2) shall use management and oversight techniques that achieve the objective of the subsection without imposing a significant management burden on the Government or the contractor involved.

(i) Implementation of Certain Waiver Authority.—(1) The Secretary of Defense may exercise the waiver authority described in paragraph (2) only if the waiver is made for a particular item listed in subsection (a) and for a particular foreign country.

(2) This subsection applies to the waiver authority provided by subsection (d) on the basis of the applicability of paragraph (2) or (3) of that subsection.

(3) The waiver authority described in paragraph (2) may not be delegated below the Under Secretary of Defense for Acquisition and Sustainment.

(4) At least 15 days before the effective date of any waiver made under the waiver authority described in paragraph (2), the Secretary shall publish in the Federal Register and submit to the congressional defense committees a notice of the determination to exercise the waiver authority.

(5) Any waiver made by the Secretary under the waiver authority described in paragraph (2) shall be in effect for a period not greater than one year, as determined by the Secretary.

(j) Limitation on Certain Procurements Application Process.—

(1) In general.—The Secretary of Defense shall administer a process to analyze and assess potential items for consideration to be required to be procured from a manufacturer that is part of the national technology and industrial base.

(2) Elements.—The application process required under paragraph (1) shall include the following elements:

(A) The Secretary shall designate an official within the Office of the Secretary of Defense responsible for administration of the limitation on certain procurements application process and associated policy.

(B) A person or organization that meets the definition of national technology and industrial base under section 4801(1) of this title shall have the opportunity to apply for status as an item required to be procured from a manufacturer that is part of the national technology and industrial base. The application shall include, at a minimum, the following information:

(i) Information demonstrating the applicant meets the criteria of a manufacturer in the national technology and industrial base under section 4801(1) of this title.

(ii) For each item the applicant seeks to be required to be procured from a manufacturer that is part of the national technology and industrial base, the applicant shall include the following information:

(I) The extent to which such item has commercial applications.

(II) The number of such items to be procured by current programs of record.

(III) The criticality of such item to a military unit's mission accomplishment.

(IV) The estimated cost and other considerations of reconstituting the manufacturing capability of such item, if not maintained in the national technology and industrial base.

(V) National security regulations or restrictions imposed on such item that may not be imposed on a non-national technology and industrial base competitor.

(VI) Non-national security-related Federal, State, and local government regulations imposed on such item that may not be imposed on a non-national technology and industrial base competitor.

(VII) The extent to which such item is fielded in current programs of record.

(VIII) The extent to which cost and pricing data for such item has been deemed fair and reasonable.

(3) Consideration of applications.—

(A) Responsibility of designated official.—The official designated pursuant to paragraph (2)(A) shall be responsible for providing complete applications submitted pursuant to this subsection to the appropriate component acquisition executive for consideration not later than 15 days after receipt of such application.

(B) Review.—Not later than 120 days after receiving a complete application, the component acquisition executive shall review such application, make a determination, and return the application to the official designated pursuant to paragraph (2)(A).

(C) Elements of determination.—The determination required under subparagraph (B) shall, for each item proposed pursuant to paragraph (2)(B)(ii)—

(i) recommend inclusion under this section;

(ii) recommend inclusion under this section with further modifications; or

(iii) not recommend inclusion under this section.

(D) Justification.—The determination required under subparagraph (B) shall also include the rationale and justification for the determination.

(4) Recommendations for legislation.—For applications recommended under subsection (3), the official designated pursuant to paragraph (2)(A) shall be responsible for preparing a legislative proposal for consideration by the Secretary.

(k) Implementation of Auxiliary Ship Component Limitation.—Subsection (a)(3) applies only with respect to contracts awarded by the Secretary of a military department for new construction of an auxiliary ship after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2020 using funds available for National Defense Sealift Fund programs or Shipbuilding and Conversion, Navy. For purposes of this subsection, the term "auxiliary ship" does not include an icebreaker or a special mission ship.

(l) Periodic Review.—

(1) Recommendation.—Not later than November 1, 2024, and every five years thereafter, the Under Secretary of Defense for Acquisition and Sustainment shall review each item described in subsections (a) and (e) of this section and submit to the congressional defense committees, in writing, one of the following recommendations:

(A) Recommend continued inclusion of the item under this section.

(B) Recommend continued inclusion of the item under this section with modifications.

(2) Elements.—Each review required under paragraph (1) shall include, with respect to the five-year period preceding the date of submission of the written determination related to such a review, the following elements:

(A) The criticality of the item reviewed to a military unit's mission accomplishment or other national security objectives.

(B) The extent to which such item is fielded in current programs of record.

(D) The extent to which cost and pricing data for such item has been deemed fair and reasonable.

(3) Justification.—The written determination required under paragraph (1) shall also include the findings of the applicable review conducted under such paragraph and any key justifications for the recommendation.

Historical and Revision Notes
Revised section	Source (U.S. Code)	Source (Statutes at Large)
2400	10:2303 (note).	Sept. 20, 1968, Pub. L. 90–500, §404, 82 Stat. 851.

The words "of the United States under the provisions of this Act or the provisions of any other law" are omitted as surplus. The word "acquisition" is substituted for "purchase, lease, rental, or other acquisition" because it is inclusive. The words "this section" are substituted for "this prohibition" because of the restatement.

Editorial Notes

References in Text

The date of the enactment of the National Defense Authorization Act for Fiscal Year 2020, referred to in subsec. (k), is the date of enactment of Pub. L. 116–92, which was approved Dec. 20, 2019.

Amendments

2022—Subsec. (a)(4). Pub. L. 117–263, §853(a)(2), inserted "and T–ARC" after "T–AO 205" in heading and introductory provisions in text.

Subsecs. (k), (l). Pub. L. 117–263, §§852, 853(a)(1) added subsec. (l) and redesignated former subsec. (l) as (k).

2021—Pub. L. 116–283, §1870(c)(2), renumbered section 2534 of this title as this section.

Subsec. (a)(2). Pub. L. 116–283, §845(a)(1)(A),(B), added par. (2) and struck out former par. (2). Prior to amendment, text read as follows: "Chemical weapons antidote contained in automatic injectors (and components for such injectors)."

Subsec. (a)(2)(F). Pub. L. 117–81, §816(1), added subpar. (F).

Subsec. (a)(3). Pub. L. 117–81, §1081(a)(30)(A), substituted "subsection (k)" for "subsection (j)".

Pub. L. 116–283, §845(a)(1)(A), (C), redesignated par. (6) as (3), substituted "subsection (j)" for "subsection (k)", and struck out former par. (3) which related to components for naval vessels.

Subsec. (a)(4). Pub. L. 116–283, §845(a)(1)(A), (D), added par. (4) and struck out former par. (4) which related to valves and machine tools.

Subsec. (a)(5). Pub. L. 117–81, §1081(a)(30)(B), substituted "principal" for "principle".

Pub. L. 116–283, §1603(a), added par. (5).

Pub. L. 116–283, §845(a)(1)(A), struck out par. (5). Text read as follows: "Ball bearings and roller bearings, in accordance with subpart 225.71 of part 225 of the Defense Federal Acquisition Regulation Supplement, as in effect on October 23, 1992, except ball bearings and roller bearings being procured for use in an end product manufactured by a manufacturer that does not satisfy the requirements of subsection (b) or in a component part manufactured by such a manufacturer."

Subsec. (a)(6). Pub. L. 116–283, §845(a)(1)(A), redesignated par. (6) as (3).

Subsec. (b). Pub. L. 117–81, §816(2), designated existing provisions as par. (1), substituted "Except as provided in paragraph (2), a manufacturer" for "A manufacturer", and added par. (2).

Pub. L. 116–283, §845(a)(2), amended subsec. (b) generally. Prior to amendment, subsec. (b) related to manufacturer in the national technology and industrial base.

Subsec. (c). Pub. L. 116–283, §845(a)(3), struck out par. (1) designation and heading and struck out pars. (2) to (5), which related to valves and machine tools, ball bearings and roller bearings, vessel propellers, and chemical weapons antidote, respectively.

Subsec. (d)(3). Pub. L. 116–283, §1870(c)(3)(A), substituted "section 4851" for "section 2531".

Subsec. (d)(4), (5). Pub. L. 116–283, §1870(c)(3)(B), as added by Pub. L. 117–81, §1701(b)(23)(A), substituted "section 4801(1)" for "section 2500(1)".

Subsec. (e)(3). Pub. L. 116–283, §1870(c)(3)(C), formerly §1870(c)(3)(B), as redesignated by Pub. L. 117–81, §1701(b)(23)(B), substituted "section 4852(d)(1)" for "section 2532(d)(1)".

Subsec. (g). Pub. L. 116–283, §845(a)(4), struck out par. (1) designation and par. (2) which read as follows: "Paragraph (1) does not apply to contracts for items described in subsection (a)(5) (relating to ball bearings and roller bearings), notwithstanding section 1905 of title 41."

Subsec. (h). Pub. L. 116–283, §845(a)(5), substituted "subsection (a)(2)" for "subsection (a)(3)(B)" in introductory provisions.

Subsec. (i)(3). Pub. L. 116–283, §845(a)(6), substituted "Under Secretary of Defense for Acquisition and Sustainment" for "Under Secretary of Defense for Acquisition, Technology, and Logistics".

Subsec. (j). Pub. L. 116–283, §845(a)(7), (8), redesignated subsec. (k) related to limitation on certain procurements application process as (j) and struck out former subsec. (j) which related to inapplicability to certain contracts to purchase ball bearings or roller bearings.

Subsec. (j)(2)(B). Pub. L. 116–283, §1870(c)(3)(D), formerly §1870(c)(3)(C), as redesignated and amended by Pub. L. 117–81, §1701(b)(23)(B), (C), substituted "section 4801(1)" for "section 2500(1)" in two places.

Subsec. (k). Pub. L. 116–283, §1870(c)(4), redesignated subsec. (k) relating to implementation of auxiliary ship component limitation as (l).

Pub. L. 116–283, §845(a)(9), substituted "Subsection (a)(3)" for "Subsection (a)(6)" in subsec. (k) relating to implementation of auxiliary ship component limitation.

Pub. L. 116–283, §845(a)(8), redesignated subsec. (k) related to limitation on certain procurements application process as (j).

Subsec. (l). Pub. L. 116–283, §1870(c)(4), redesignated subsec. (k) relating to implementation of auxiliary ship component limitation as (l).

2019—Subsec. (a)(6). Pub. L. 116–92, §853(a), added par. (6).

Subsec. (k). Pub. L. 116–92, §853(b), added subsec. (k) related to implementation of auxiliary ship component limitation.

2018—Subsec. (k). Pub. L. 115–232 added subsec. (k) related to limitation on certain procurements application process.

2017—Subsec. (c)(5). Pub. L. 115–91 added par. (5).

2011—Subsec. (g)(2). Pub. L. 111–350 substituted "section 1905 of title 41" for "section 33 of the Office of Federal Procurement Policy Act (41 U.S.C. 429)".

2003—Subsec. (a)(5). Pub. L. 108–136 inserted before period at end ", except ball bearings and roller bearings being procured for use in an end product manufactured by a manufacturer that does not satisfy the requirements of subsection (b) or in a component part manufactured by such a manufacturer".

2001—Subsec. (i)(3). Pub. L. 107–107, §1048(b)(2), substituted "Under Secretary of Defense for Acquisition, Technology, and Logistics" for "Under Secretary of Defense for Acquisition and Technology".

Subsec. (j). Pub. L. 107–107, §835(a), added subsec. (j).

2000—Subsec. (c)(3). Pub. L. 106–398 substituted "October 1, 2005" for "October 1, 2000".

1997—Subsec. (b)(3). Pub. L. 105–85, §1073(a)(55), substituted "(a)(3)(A)(iii)" for "(a)(3)(A)(ii)".

Subsec. (d)(4), (5). Pub. L. 105–85, §371(d)(1), substituted "section 2500(1)" for "section 2491(1)".

Subsec. (i). Pub. L. 105–85, §811(a), added subsec. (i).

1996—Subsec. (a)(3). Pub. L. 104–106, §806(a)(1), amended par. (3) generally. Prior to amendment, par. (3) read as follows: "Air circuit breakers.—Air circuit breakers for naval vessels."

Subsec. (b)(3). Pub. L. 104–106, §806(a)(2), added par. (3).

Subsec. (c). Pub. L. 104–106, §1503(a)(30), substituted "Certain Items" for "certain items" in heading.

Subsec. (c)(1). Pub. L. 104–106, §806(a)(3), amended par. (1) generally. Prior to amendment, par. (1) read as follows: "Air circuit breakers.—Subsection (a) does not apply to a procurement of spares or repair parts needed to support air circuit breakers produced or manufactured outside the United States."

Subsec. (c)(3). Pub. L. 104–106, §806(b), substituted "October 1, 2000" for "October 1, 1995".

Subsec. (c)(4). Pub. L. 104–201, §1074(a)(14), substituted "February 10, 1998" for "the date occurring two years after the date of the enactment of the National Defense Authorization Act for Fiscal Year 1996".

Pub. L. 104–106, §806(c), added par. (4).

Subsec. (d)(3). Pub. L. 104–201, §810, inserted "or would impede the reciprocal procurement of defense items under a memorandum of understanding providing for reciprocal procurement of defense items that is entered into under section 2531 of this title," after "a foreign country,".

Subsec. (g). Pub. L. 104–106, §806(d), designated existing provisions as par. (1) and added par. (2).

Subsec. (h). Pub. L. 104–106, §806(a)(4), added subsec. (h).

1994—Pub. L. 103–337 amended section generally. Prior to amendment, section consisted of subsecs. (a) to (f) relating to acquisition of multipassenger motor vehicles, chemical weapons antidote, valves and machine tools, carbonyl iron powders, air circuit breakers, and sonobuoys.

Subsec. (g). Pub. L. 103–355 added subsec. (g).

1993—Subsec. (b)(2). Pub. L. 103–160 substituted "Under Secretary of Defense for Acquisition and Technology" for "Under Secretary of Defense for Acquisition".

1992—Pub. L. 102–484, §§4202(a), 4271(b)(4), renumbered section 2507 of this title as section 2534 and substituted "Miscellaneous limitations on the procurement of goods other than United States goods" for "Miscellaneous procurement limitations" in section catchline.

Subsec. (c). Pub. L. 102–484, §831, redesignated subsec. (d) as (c) and struck out former subsec. (c) which read as follows: "Manual Typewriters From Warsaw Pact Countries.—Funds appropriated to or for the use of the Department of Defense may not be used for the procurement of manual typewriters which contain one or more components manufactured in a country which is a member of the Warsaw Pact unless the products of that country are accorded nondiscriminatory treatment (most-favored-nation treatment)."

Subsec. (d). Pub. L. 102–484, §831(b), redesignated subsec. (e) as (d). Former subsec. (d) redesignated (c).

Subsec. (d)(3)(A). Pub. L. 102–484, §1052(33), substituted "Government-owned" for "government-owned".

Subsec. (e). Pub. L. 102–484, §831(b), redesignated subsec. (f) as (e). Former subsec. (e) redesignated (d).

Subsec. (f). Pub. L. 102–484, §833(a), added subsec. (f). Former subsec. (f) redesignated (e).

1991—Subsec. (d)(1). Pub. L. 102–190, §834(a), substituted "Effective through fiscal year 1996" for "During fiscal years 1989, 1990, and 1991".

Subsec. (d)(3) to (5). Pub. L. 102–190, §834(b), added pars. (3) and (4), redesignated former par. (3) as (5), and struck out former par. (4) which read as follows: "The provisions of this section may be renewed with respect to any item by the Secretary of Defense at the end of fiscal year 1991 for an additional two fiscal years if the Secretary determines that a continued restriction on that item is in the national security interest."

Subsec. (e)(1). Pub. L. 102–190, §835(1), substituted "Until January 1, 1993, the Secretary" for "The Secretary".

Subsec. (e)(3). Pub. L. 102–190, §835(2), (4), redesignated par. (4) as (3) and struck out former par. (3) which read as follows: "After September 30, 1994, the Secretary may terminate the restriction required under paragraph (1) if the Secretary determines that continuing the restriction is not in the national interest."

Subsec. (e)(3)(A). Pub. L. 102–190, §835(3), struck out before period "by an entity more than 50 percent of which is owned or controlled by citizens of the United States or Canada".

Subsec. (e)(4). Pub. L. 102–190, §835(4), redesignated par. (4) as (3).

1990—Subsec. (e). Pub. L. 101–510, §835(a), added subsec. (e).

Subsec. (f). Pub. L. 101–510, §1421, added subsec. (f).

1988—Pub. L. 100–370, and Pub. L. 100–456, §821(b)(1)(A), successively renumbered section 2400 of this title as section 2502 of this title and then as this section.

Subsec. (a). Pub. L. 100–370 substituted "this subsection" for "this section".

Subsec. (d). Pub. L. 100–456, §822, added subsec. (d).

1987—Pub. L. 100–180 substituted "Miscellaneous procurement limitations" for "Limitation on procurement of buses" in section catchline, designated existing provisions as subsec. (a) and added heading, and added subsecs. (b) and (c).

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below.

Amendment by section 1870(c)(2)–(4) of Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

Effective Date of 2018 Amendment

Pub. L. 115–232, div. A, title VIII, §844(b), Aug. 13, 2018, 132 Stat. 1881, as amended by Pub. L. 116–92, div. A, title XVII, §1731(b)(2), Dec. 20, 2019, 133 Stat. 1816, provided that: "The amendment made by subsection (a) [amending this section] shall take effect one year after the date of the enactment of this Act [Aug. 13, 2018]."

[Pub. L. 116–92, div. A, title XVII, §1731(b), Dec. 20, 2019, 133 Stat. 1816, provided that the amendment made by section 1731(b)(2) to section 844(b) of Pub. L. 115–232, set out above, is effective Aug. 13, 2018, and as if included in Pub. L. 115–232 as enacted.]

Effective Date of 1997 Amendment

Pub. L. 105–85, div. A, title VIII, §811(b), Nov. 18, 1997, 111 Stat. 1840, provided that: "Subsection (i) of section 2534 of such title [now 10 U.S.C. 4864(i)], as added by subsection (a), shall apply with respect to—

"(1) contracts and subcontracts entered into on or after the date of the enactment of this Act [Nov. 18, 1997]; and

"(2) options for the procurement of items that are exercised after such date under contracts that are entered into before such date if the option prices are adjusted for any reason other than the application of a waiver granted under subsection (d) of such section 2534 [now 10 U.S.C. 4864(d)], on the basis of the applicability of paragraph (2) or (3) of that subsection."

Effective Date of 1994 Amendment

For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 8752 of this title.

Effective Date of 1992 Amendment

Pub. L. 102–484, div. A, title VIII, §833(b), Oct. 23, 1992, 106 Stat. 2461, provided that: "Subsection (f) of section 2534 of title 10, United States Code, as added by subsection (a) [see, now, 10 U.S.C. 4864(e)], shall apply with respect to solicitations for contracts issued after the expiration of the 120-day period beginning on the date of the enactment of this Act [Oct. 23, 1992]."

Regulations

Pub. L. 117–263, div. A, title VIII, §853(b), Dec. 23, 2022, 136 Stat. 2722, provided that: "Not later than June 1, 2023, the Secretary of Defense shall issue regulations for carrying out section 4864(j) of title 10, United States Code."

Review of Select Components

Pub. L. 116–283, div. A, title VIII, §845(b), Jan. 1, 2021, 134 Stat. 3767, provided that:

"The Secretary of the Defense shall expedite the review period under paragraph (3)(B) of section 2534(j) of title 10, United States Code [now 10 U.S.C. 4864(j)], as redesignated by subsection (a), to not more than 60 days for applications submitted pursuant to such section 2534(j) [now 4864(j)] for the following components for auxiliary ships:

"(1) Auxiliary equipment, including pumps, for all shipboard services.

"(2) Propulsion system components, including engines, reduction gears, and propellers.

"(3) Shipboard cranes.

"(4) Spreaders for shipboard cranes."

Certain Exemption

Pub. L. 116–283, div. A, title XVI, §1603(b), Jan. 1, 2021, 134 Stat. 4043, provided that: "Paragraph (5) of section 2534(a) of title 10, United States Code [now 10 U.S.C. 4864(a)(5)], as added by subsection (a) of this section, shall not apply with respect to programs that have received Milestone A approval (as defined in section 2431a of such title [now 10 U.S.C. 4211]) before October 1, 2021."

Clarification of Delegation Authority

Pub. L. 116–283, div. A, title XVI, §1603(c), Jan. 1, 2021, 134 Stat. 4043, provided that: "Subject to subsection (i) of section 2534 of title 10, United States Code [now 10 U.S.C. 4864(i)], the Secretary of Defense may delegate to a service acquisition executive the authority to make a waiver under subsection (d) of such section with respect to the limitation under subsection (a)(5) of such section, as added by subsection (a) of this section."

Procurement of Photovoltaic Devices

Pub. L. 111–383, div. A, title VIII, §846, Jan. 7, 2011, 124 Stat. 4285, as amended by Pub. L. 113–291, div. A, title X, §1071(b)(1)(A), Dec. 19, 2014, 128 Stat. 3505, provided that:

"(a) Contract Requirement.—The Secretary of Defense shall ensure that each contract described in subsection (b) awarded by the Department of Defense includes a provision requiring the photovoltaic devices provided under the contract to comply with chapter 83 of title 41, United States Code, subject to the exceptions to that chapter provided in the Trade Agreements Act of 1979 (19 U.S.C. 2501 et seq.) or otherwise provided by law.

"(b) Contracts Described.—The contracts described in this subsection include energy savings performance contracts, utility service contracts, land leases, and private housing contracts, to the extent that such contracts result in ownership of photovoltaic devices by the Department of Defense. For the purposes of this section, the Department of Defense is deemed to own a photovoltaic device if the device is—

"(1) installed on Department of Defense property or in a facility owned by the Department of Defense; and

"(2) reserved for the exclusive use of the Department of Defense for the full economic life of the device.

"(c) Definition of Photovoltaic Devices.—In this section, the term 'photovoltaic devices' means devices that convert light directly into electricity through a solid-state, semiconductor process."