10 U.S. 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:
(b) 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 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.
This subsection applies to prime contracts and subcontracts at any tier under such contracts.
(c) Exception for Certain Acquisitions.—Subsection (a) does not apply to the following:
(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—
(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.—
(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 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.
(h) Applicability to Acquisitions of Commercial Products.—
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—
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.—
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.
(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—
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—
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.—
(2) A written determination under paragraph (1)—
may not be delegated below the level of the Deputy Secretary of Defense or the Under Secretary of Defense for Acquisition and Sustainment;
shall specify the quantity of end items to which the waiver applies and the time period over which the waiver applies; and
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.
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.
(C) If the Secretary determines that the noncompliance was knowing or willful, the Secretary shall—
(l) Specialty Metal Defined.—In this section, the term “specialty metal” means any of the following:
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
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.
(m) Additional Definitions.—In this section:
(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 finished end item delivered to the Department of Defense; or
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.
The term “end item” means the final production product when assembled or completed, and ready for issue, delivery, or deployment.
(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.)
 Reference reflects amendment made by .
The following state regulations pages link to this page.