10 U.S.C. § 4862 — Requirement to buy certain articles from

Page 2888 TITLE 10—ARMED FORCES § 4862 (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, pro- duced, or manufactured in the United States; or (2) an end product that is manufactured in the United States but which includes compo- nents mined, produced, or manufactured out- side the United States the aggregate cost of which exceeds the aggregate cost of the com- ponents 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; renum- bered § 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 provi- sions. 2011—Pub. L. 111–350, § 5(b)(37)(A), substituted ‘‘chap- ter 83 of title 41’’ for ‘‘the Buy American Act’’ in sec- tion 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 provi- sions. 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 ‘‘Deter- minations 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 fol- lows: ‘‘Funds appropriated to the Department of De- fense may not be obligated under a contract for pro- curement 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 fur- nish 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 excep- tions contained in title III of the Act of March 3, 1933 (41 U.S.C. 10a, 10b), popularly known as the ‘Buy Amer- ican 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 sub- sections (c) through (h), funds appropriated or otherwise available to the Department of De- fense 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 compo- nents thereof, other than sensors, elec- tronics, 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 prod- ucts, woven silk or woven silk blends, spun silk yarn for cartridge cloth, synthetic fab- ric 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 con- tained in fabrics, materials, or manufac- tured articles); or (E) any item of individual equipment man- ufactured from or containing such fibers, yarns, fabrics, or materials. Page 2889 TITLE 10—ARMED FORCES § 4862 (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 de- partment concerned determines that satisfac- tory 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 procure- ments of any item listed in subsection (b)(1)(A) or (b)(2) in support of contingency op- erations. (2) Procurements by, or for, vessels in for- eign waters. (3) Emergency procurements or procure- ments of perishable foods by, or for, an estab- lishment located outside the United States for the personnel attached to such establishment. (4) Procurements of any item listed in sub- section (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 PROTEC- TIVE CLOTHING.—Subsection (a) does not pre- clude the procurement of chemical warfare pro- tective clothing produced outside the United States if— (1) such procurement is necessary— (A) to comply with agreements with for- eign 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 pro- grams serving defense requirements; or (B) in furtherance of agreements with for- eign governments in which both such gov- ernments agree to remove barriers to pur- chases of supplies produced in the other country or services performed by sources of the other country; and (2) any such agreement with a foreign gov- ernment 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 COMMOD- ITIES AND ITEMS.—Subsection (a) does not pre- clude 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 INSTRUMEN- TALITIES.—Subsection (a) does not apply to items purchased for resale purposes in com- missaries, exchanges, or nonappropriated fund instrumentalities operated by the Department of Defense. (h) EXCEPTION FOR SMALL PURCHASES.—(1) Ex- cept 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 sev- eral purchases or contracts for lesser amounts in order to qualify for the exception under clause (i). (B) The Secretary of Defense may waive sub- section (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 di- visible by five, the Secretary of Defense may ad- just 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 SUB- CONTRACTS FOR PROCUREMENT OF COMMERCIAL PRODUCTS.—This section is applicable to con- tracts 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 subpara- graph (B), (C), (D), or (E) of subsection (b)(1), if the Secretary of Defense or of the military de- partment 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 noti- fication that the exception has been applied on the Internet site maintained by the General Services Administration known as FedBizOpps.gov (or any successor site). (Added Pub. L. 107–107, div. A, title VIII, § 832(a)(1), Dec. 28, 2001, 115 Stat. 1189, § 2533a; amended Pub. L. 108–136, div. A, title VIII, §§ 826, 827, Nov. 24, 2003, 117 Stat. 1548; Pub. L. 109–163, div. A, title VIII, §§ 831, 833, Jan. 6, 2006, 119 Stat. 3388; Pub. L. 109–364, div. A, title VIII, § 842(a)(3), Oct. 17, 2006, 120 Stat. 2337; Pub. L. 111–350, § 5(b)(38), Jan. 4, 2011, 124 Stat. 3845; Pub. L. 111–383, div. A, title VIII, § 847, title X, § 1075(b)(38), Jan. 7, 2011, 124 Stat. 4286, 4371; Pub. L. 112–81, div. A, title VIII, § 821, Dec. 31, 2011, 125 Stat. 1502; Pub. L. 112–239, div. A, title X, § 1076(f)(29), Jan. 2, 2013, 126 Stat. 1953; Pub. L. 115–232, div. A, title VIII, § 837(b), Aug. 13, 2018, Page 2890 TITLE 10—ARMED FORCES § 4862 132 Stat. 1875; Pub. L. 116–92, div. A, title VIII, § 854(a)(1), (3), Dec. 20, 2019, 133 Stat. 1512; renum- bered § 4862 and amended Pub. L. 116–283, div. A, title VIII, § 817, title XVIII, §§ 1870(c)(2), 1883(b)(2), Jan. 1, 2021, 134 Stat. 3751, 4285, 4294; Pub. L. 117–81, div. A, title XVII, § 1701(d)(17), Dec. 27, 2021, 135 Stat. 2138; Pub. L. 118–31, div. A, title VIII, § 832(a), Dec. 22, 2023, 137 Stat. 336; Pub. L. 118–159, div. A, title VIII, §§ 842(a), (c), 843, Dec. 23, 2024, 138 Stat. 1990, 1991.) AMENDMENT OF SUBSECTION (b) Pub. L. 118–159, div. A, title VIII, § 842(a), (b), Dec. 23, 2024, 138 Stat. 1990, provided that, ef- fective Jan. 1, 2026, subsection (b) of this section is amended by inserting after paragraph (2) the following new paragraphs: (3) Stainless steel flatware. (4) Dinnerware. Pub. L. 118–159, div. A, title VIII, § 842(c), Dec. 23, 2024, 138 Stat. 1991, provided that, ef- fective Jan. 1, 2029, subsection (b) of this section is amended by repealing paragraphs (3) and (4), as added by section 842(a) of Pub. L. 118–159. See 2024 Amendment notes below. Editorial Notes AMENDMENTS 2024—Subsec. (b)(3), (4). Pub. L. 118–159, § 842(c), struck out pars. (3) and (4) which read as follows: ‘‘(3) Stainless steel flatware. ‘‘(4) Dinnerware.’’ See Effective and Termination Dates of 2024 Amend- ment note below. Pub. L. 118–159, § 842(a), added pars. (3) and (4). Subsec. (d)(2). Pub. L. 118–159, § 843, inserted ‘‘, or for,’’ after ‘‘Procurements by’’. 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), sub- stituted ‘‘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 substi- tution 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 ‘‘Prod- ucts’’ for ‘‘Items’’ in heading and ‘‘commercial prod- ucts’’ 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 ‘‘sub- section (b)’’ for ‘‘subsection (b)(1)’’. Subsec. (d)(1), (4). Pub. L. 111–383, § 1075(b)(38), sub- stituted ‘‘(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 Pro- curement Policy Act (41 U.S.C. 430)’’. 2006—Subsec. (b)(1)(B). Pub. L. 109–163, § 833(b), in- serted before semicolon ‘‘and the materials and compo- nents 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), redes- ignated 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 flat- ware)’’ 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 head- ing 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 ‘‘EXCEP- TIONS 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 AND TERMINATION DATES OF 2024 AMENDMENT Pub. L. 118–159, div. A, title VIII, § 842(b), Dec. 23, 2024, 138 Stat. 1990, provided that: ‘‘Paragraphs (3) and (4) of section 4862(b) of title 10, United States Code, as added by subsection (a), shall take effect on January 1, 2026.’’ Pub. L. 118–159, div. A, title VIII, § 842(c), Dec. 23, 2024, 138 Stat. 1991, provided that the amendment made by section 842(c) is effective Jan. 1, 2029. 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 imme- diately 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 applica- bility 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. Page 2891 TITLE 10—ARMED FORCES § 4862 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 Ta- bles 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. DOMESTIC NONAVAILABILITY DETERMINATIONS LIST Pub. L. 118–159, div. A, title VIII, § 848, Dec. 23, 2024, 138 Stat. 1993, provided that: ‘‘(a) IN GENERAL.—Not later than 180 days after the date of the enactment of this Act [Dec. 23, 2024], the Under Secretary of Defense for Acquisition and Sustainment shall develop and maintain a list of all do- mestic nonavailability determinations. ‘‘(b) SUBMISSION TO CONGRESS.—Not later than 30 days after the Under Secretary for Acquisition and Sustainment develops the list required under sub- section (a), and annually thereafter, the Under Sec- retary for Acquisition and Sustainment shall submit to Congress a list of all domestic nonavailability deter- minations 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 Acqui- sition 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 DE- FINED.—In this section, the term ‘domestic nonavail- ability determination’ means a determination made for purposes of providing an availability exception pursu- ant to section 4862(c) of title 10, United States Code.’’ 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 CON- TRACTING COMPLIANCE.—The Inspector General of the Department of Defense shall conduct periodic audits of contracting practices and policies related to procure- ment 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 pur- suant 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, pro- vided that: ‘‘(a) AUTHORITY TO PROCURE.—The Secretary of De- fense may procure fire resistant rayon fiber for the pro- duction 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 produc- tion of uniforms is not available from sources within the national technology and industrial base. ‘‘(2) That— ‘‘(A) procuring fire resistant rayon fiber manufac- tured from suppliers within the national tech- nology 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 Govern- ment 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 deter- mination. ‘‘(c) APPLICABILITY TO SUBCONTRACTS.—The authority under subsection (a) applies with respect to sub- contracts 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 under- standing 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 DE- FINED.—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 Sec- retary of Defense shall ensure that each member of the defense acquisition workforce who participates person- ally 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 imple- menting that section. ‘‘(b) INCLUSION OF INFORMATION IN NEW TRAINING PRO- GRAMS.—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 per- sonally 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 provi- sion 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.’’ Page 2892 TITLE 10—ARMED FORCES § 4863 § 4863. Requirement to buy strategic materials critical to national security from American sources; exceptions (a) REQUIREMENT.—Except as provided in sub- sections (b) through (m), the acquisition by the Department of Defense of the following items is prohibited: (1) The following types of end items, or com- ponents 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 De- fense or a prime contractor of the Depart- ment. (b) AVAILABILITY EXCEPTION.—(1) Subsection (a) does not apply to the extent that the Sec- retary of Defense or the Secretary of the mili- tary department concerned determines that compliant specialty metal of satisfactory qual- ity and sufficient quantity, and in the required form, cannot be procured as and when needed at a reasonable price. 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 con- tracts. (3) The authority in subsection (b)(1)— (A) may be delegated to the head of con- tracting activity for the relevant component for an exception for a single acquisition pro- gram; (B) may be delegated to the senior acquisi- tion executive of a military department for an exception for multiple programs within such military department; and (C) may be delegated to the Undersecretary of Defense for Acquisition and Sustainment for an exception for more than one military department. (c) EXCEPTION FOR CERTAIN ACQUISITIONS.— Subsection (a) does not apply to the following: (1) Acquisitions outside the United States in support of contingency operations or for use outside of the United States. (2) Acquisitions for which the use of proce- dures other than competitive procedures has been approved on the basis of section 3204(a)(2) of this title, relating to unusual and compel- ling 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— (A) to comply with agreements with for- eign 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 pro- grams serving defense requirements; or (B) in furtherance of agreements with qualifying foreign governments in which both such governments agree to remove bar- riers 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 gov- ernment 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 INSTRUMEN- TALITIES.—Subsection (a) does not apply to items purchased for resale purposes in com- missaries, exchanges, and nonappropriated fund instrumentalities operated by the Department of Defense. (f) EXCEPTION FOR SMALL PURCHASES.—Sub- section (a) does not apply to acquisitions in amounts not greater than the simplified acquisi- tion 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 recommenda- tion 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 domes- tic availability of a particular electronic compo- nent is critical to national security. (h) APPLICABILITY TO ACQUISITIONS OF COMMER- CIAL PRODUCTS.—(1) Except as provided in para- graphs (2) and (3), this section applies to acquisi- tions 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 commer- cially available off-the-shelf items, as defined in section 104 of title 41, other than— (A) contracts or subcontracts for the acqui- sition of specialty metals, including mill prod- ucts, such as bar, billet, slab, wire, plate and sheet, that have not been incorporated into end items, subsystems, assemblies, or compo- nents; (B) contracts or subcontracts for the acqui- sition of forgings or castings of specialty met- als, unless such forgings or castings are incor- porated into commercially available off-the- shelf end items, subsystems, or assemblies; (C) contracts or subcontracts for commer- cially available high performance magnets un- less such high performance magnets are incor- porated into commercially available off-the- shelf-end items or subsystems; and (D) contracts or subcontracts for commer- cially available off-the-shelf fasteners, unless such fasteners are— (i) incorporated into commercially avail- able off-the-shelf end items, subsystems, as- semblies, or components; or (ii) purchased as provided in paragraph (3). (3) This section does not apply to fasteners that are commercial products that are pur- chased under a contract or subcontract with a manufacturer of such fasteners, if the manufac- turer has certified that it will purchase, during the relevant calendar year, an amount of domes- tically melted specialty metal, in the required