10 USC 4862: Requirement to buy certain articles from American sources; exceptions

10 USC 4862: Requirement to buy certain articles from American sources; exceptions Text contains those laws in effect on April 22, 2024

From Title 10-ARMED FORCESSubtitle A-General Military LawPART V-ACQUISITIONSubpart I-Defense Industrial BaseCHAPTER 385-OTHER TECHNOLOGY BASE POLICIES AND PROGRAMSSUBCHAPTER II-LIMITATIONS ON PROCUREMENT OF CERTAIN ITEMS FROM FOREIGN SOURCES

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§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[(3), (4) Repealed.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 act:

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."