USC Subchapter II

USC Subchapter II
in effect

10 U.S.C. § 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.

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

(a) Requirement.—Except as provided in subsections (c) through (h), funds appropriated or otherwise available to the Department of Defense may not be used for the procurement of an item described in subsection (b) if the item is not grown, reprocessed, reused, or produced in the United States. (b) Covered Items.—An item referred to in subsection (a) is any of the following:(1) An article or item of—(A) food; (B) clothing and the materials and components thereof, other than sensors, electronics, or other items added to, and not normally associated with, clothing (and the materials and components thereof); (C) tents (and the structural components thereof), tarpaulins, or covers; (D) cotton and other natural fiber products, woven silk or woven silk blends, spun silk yarn for cartridge cloth, synthetic fabric or coated synthetic fabric (including all textile fibers and yarns that are for use in such fabrics), canvas products, or wool (whether in the form of fiber or yarn or contained in fabrics, materials, or manufactured articles); or (E) any item of individual equipment manufactured from or containing such fibers, yarns, fabrics, or materials. (2) Hand or measuring tools. (3) Stainless steel flatware. (4) Dinnerware. (5) A flag of the United States. (c) Availability Exception.—Subsection (a) does not apply to the extent that the Secretary of Defense or the Secretary of the military department concerned determines that satisfactory quality and sufficient quantity of any such article or item described in subsection (b) grown, reprocessed, reused, or produced in the United States cannot be procured as and when needed at United States market prices. (d) Exception for Certain Procurements.—Subsection (a) does not apply to the following:(1) Procurements outside the United States in support of combat operations or procurements of any item listed in subsection (b)(1)(A) or (b)(2) in support of contingency operations. (2) Procurements by, or for, vessels in foreign waters. (3) Emergency procurements or procurements of perishable foods by, or for, an establishment located outside the United States for the personnel attached to such establishment. (4) 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.—(1) Except as provided in paragraph (2), subsection (a) does not apply to items purchased for resale purposes in commissaries, exchanges, or nonappropriated fund instrumentalities operated by the Department of Defense. (2)(A) Paragraph (1) shall not apply with respect to the procurement of seafood originating in a covered foreign country, including procurement for use in military dining facilities, galleys aboard United States naval vessels, and procurement for resale in commissary stores, notwithstanding the source of funds used for such procurement. (B) The Secretary of Defense may waive the requirements of subparagraph (A) if such procurement would cause undue burden to a naval vessel while at sea or in port at a foreign port, a dining facility in a foreign country, a commissary, an exchange, or a nonappropriated fund instrumentality located on a military installation located outside the United States. (C) In this paragraph, the term “covered foreign country” means The People’s Republic of China, the Russian Federation, the Islamic Republic of Iran, or the Democratic People’s Republic of Korea. (h) Exception for Small Purchases.—(1) Except with respect to purchases of flags of the United States, subsection (a) does not apply to purchases for amounts not greater than $150,000. A proposed procurement of an item in an amount greater than $150,000 may not be divided into several purchases or contracts for lesser amounts in order to qualify for this exception. (2)(A)(i) Except as provided by subparagraph (B), subsection (a) does not apply to purchases of flags of the United States for amounts not greater than $10,000. (ii) A proposed procurement in an amount greater than $10,000 may not be divided into several purchases or contracts for lesser amounts in order to qualify for the exception under clause (i). (B) The Secretary of Defense may waive subsection (a) with respect to a purchase of flags of the United States in an amount greater than $10,000 if the Secretary of Defense determines such waiver appropriate. (C) This section is applicable to contracts and subcontracts for the procurement of flags of the United States. (3) On October 1 of each year that is evenly divisible by five, the Secretary of Defense may adjust the dollar threshold in this subsection based on changes in the Consumer Price Index. Any such adjustment shall take effect on the date on which the Secretary publishes notice of such adjustment in the Federal Register. (i) Applicability to Contracts and Subcontracts for Procurement of Commercial Products.—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).

10 U.S.C. § 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 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 contracts. (3) The authority in subsection (b)(1)—(A) may be delegated to the head of contracting activity for the relevant component for an exception for a single acquisition program; (B) may be delegated to the senior acquisition 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 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—(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 qualifying 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; (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; and (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). (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 or the Secretary of the military department concerned 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 be delegated—(i) to the senior acquisition executive of the military department concerned for a waiver for one or more acquisition programs within the such military department; and (ii) to the Deputy Secretary of Defense or the Under Secretary of Defense for Acquisition and Sustainment for a waiver applicable to more than one military department; (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. (C) If the Secretary determines that the noncompliance was knowing or willful, the Secretary shall—(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) 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). (m) 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. (n) 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. (11) The term “qualifying foreign government” means the government of a country with which the United States has in effect a reciprocal defense procurement agreement or memorandum of understanding entered into pursuant to section 4851 of this title.

10 U.S.C. § 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. (C) Steering controls. (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. (C) Shipboard cranes. (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.—(1) 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. (2) For purposes of this subsection, the term “auxiliary ship”—(A) with respect to a contract entered into after December 20, 2019, does not include an icebreaker or a special mission ship; and (B) with respect to a contract entered into on or after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2025, includes an icebreaker or a special mission ship, unless the Secretary of the Navy certifies to Congress that the forecasted sales over a four-year period of large medium-speed diesel engines manufactured in the national technology and industrial base will not fall below the minimum sustaining rate for plant operations of a diminishing manufacturing source. (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. (C) Recommend discontinuing inclusion of the item under this section. (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. (C) The number of such items to be procured by 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.

10 U.S.C. § 4865 Prohibition on acquisition of advanced batteries composed of materials from certain foreign sources

(a) In General.—The Secretary of Defense shall procure advanced batteries and cells whose functional cell components and technology, whether as end items or embedded within warfighting and support systems, are not owned, sourced, refined, or produced from a foreign entity of concern. (b) Applicability.—This section applies to all new acquisition programs on January 1, 2028, standard batteries on January 1, 2029, and for existing acquisition programs on January 30, 2031. (c) Exceptions.—(1) Sourcing and production compliance.—(A) In general.—Subsection (a) does not apply to an advanced battery or cell of an advanced battery if—(i) the final assembly of such advanced battery or cell is carried out by an entity other than a foreign entity of concern; (ii) functional cell components comprising more than 95 percent of the costs of the functional cell components of such advanced battery or cell are from sources other than foreign entities of concern; and (iii) such advanced battery or cell is produced without technology licensed from a foreign entity of concern. (B) Recycled source determination.—For the purposes of subparagraph (A)(ii), any material or component from an entity that has been recycled and reprocessed domestically is considered to originate from that entity regardless of origin. (2) Excluded batteries.—Subsection (a) does not apply to a battery or cell of a battery that is—(A) acquired for use in a cell phone, laptop, personal electronic device, or medical equipment intended for use in an office, administrative, hospital, or non-combat environment; (B) commercially available off-the-shelf item for use only in the maintenance of equipment; or (C) acquired for research, development, testing, and evaluation by the Department of Defense. (3) Waiver.—(A) In general.—The Secretary of Defense may waive the limitations specified in subsection (a) for a specific system or battery for one year if—(i) the Secretary determines that a satisfactory quality and sufficient quantity such advanced battery or cell that are not subject to such prohibition cannot be acquired as and when needed by the Department of Defense at reasonable costs; or (ii) in the case of an advanced battery or cell that is a component of a warfighting or support system, sufficient documentation exists to show that such advanced battery or cell is not a functional enabler of operational capability for such system and such advanced battery or cell poses no risk to the security of or sourcing for such system. (B) Delegation.—The Secretary of Defense may delegate the authority under subparagraph (A) only to the Under Secretary of Defense for Acquisition and Sustainment. (d) Report.—Not later than December 1, 2028, and not less frequently than once every three years thereafter until the date that is twelve years after the date of the enactment of this Act, the Secretary of Defense shall provide to the congressional defense committees a briefing on the status of meeting the requirements under subsection (a). (e) Definitions.—In this section:(1) The term “new acquisition program” means a defense acquisition program that has not reached the initiation of the engineering and manufacturing development phase, or an equivalent phase of development, including a defense acquisition program that has not undergone a formal Milestone B approval or equivalent decision point, before the date of the enactment of this Act. (2) The term “existing acquisition program” means a defense acquisition program that has reached the initiation of the engineering and manufacturing development phase, or an equivalent phase of development, including a defense acquisition program that has undergone a formal Milestone B approval or equivalent decision point, before the date of the enactment of this Act. (3) The term “functional cell component” means the cathode materials, anode materials, separators, anode foils, and other functional materials of an advanced battery that contribute to the chemical processes necessary for energy storage, including solvents, additives, electrolyte salts, and internal safety devices. (4) The “foreign entity of concern” has the meaning given such term under section 40207(a) of the Infrastructure Investment and Jobs Act (42 U.S.C. 18741(a)), and includes entities specified in section 154 of the National Defense Authorization Act for Fiscal Year 2024 (Public Law 118–31; 10 U.S.C. 4651 note prec.). (5) The term “standard battery” means a battery that used in more than one weapons system and are not managed by one portfolio acquisition executive.

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