10 U.S.C. § 4864 — Miscellaneous limitations on the procurement of goods other than United States goods

(a) The Secretary of Defense may buy the following items only if their manufacturer meets (b): (1) multipassenger motor vehicles, or buses; (2) these vessel components, when unique to marine use: gyrocompasses, electronic navigation chart systems, steering controls, propulsion and machinery control systems, totally enclosed lifeboats, and welded shipboard anchor and mooring chain; (3) subject to (k), large medium-speed diesel engines for auxiliary ships; (4) these components of T–AO 205 and T–ARC class vessels: auxiliary equipment, including pumps, for all shipboard services; propulsion-system components, including engines, reduction gears, and propellers; shipboard cranes; and spreaders for shipboard cranes; and (5) a star tracker used in a satellite weighing more than 400 pounds whose main purpose is to support the national-security, defense, or intelligence needs of the United States Government.

(b) (1) Except as paragraph (2) provides, a manufacturer meets this subsection if it is part of the national technology and industrial base^*. (2) A manufacturer of welded shipboard anchor and mooring chain for naval vessels meets this subsection if it is part of the national technology and industrial base.

(c) The limit in (a) does not apply when buying spare or repair parts needed to support naval-vessel components produced or manufactured outside the United States.

(d) The Secretary of Defense may waive the limit in (a) for a listed item if the Secretary determines that one of these conditions applies: (1) applying the limit would cause unreasonable costs or delays; (2) United States producers would not be put at risk by competition from a foreign country, and that country does not discriminate against United States defense items more than the United States discriminates against defense items from that country; (3) applying the limit would interfere with a cooperative program between Defense and a foreign country, or with reciprocal buying of defense items under a qualifying memorandum of understanding made under § 4851, and that country does not discriminate against United States defense items more than the United States discriminates against defense items from that country; (4) satisfactory-quality items made by an entity in the national technology and industrial base are unavailable; (5) applying the limit would leave only one source for the item that is an entity in the national technology and industrial base; (6) the purchase is below the simplified acquisition threshold^* and simplified purchase procedures are used; (7) applying the limit is not in the national-security interests of the United States; or (8) applying the limit would harm a United States company.

(e) (1) The Secretary may not buy a sonobuoy made in a foreign country if United States sonobuoy firms are not allowed to compete on equal terms with foreign manufacturers to sell sonobuoys in that country. (2) The Secretary may waive that limit for a particular sonobuoy purchase if the Secretary determines that the purchase is in the national-security interests of the United States. (3) “United States firm” has the meaning given in § 4852(d)(1); this section does not define that term.

(f) A law enacted later may be read as changing or overriding this section, or as requiring the Secretary to limit funds to, or make funds available by contract to, a particular domestic source, only if that law: (1) specifically refers to this section; (2) specifically says that it changes or overrides this section; and (3) specifically identifies the domestic source and says that the contract under that law is being awarded in violation of this section.

(g) This section does not apply to a contract or subcontract for an amount that does not exceed the simplified acquisition^* threshold.

(h) When carrying out (a)(2), the Secretary of Defense may not use contract clauses or certifications. The Secretary must use management and oversight methods that achieve the subsection’s purpose without creating a significant management burden for the Government or the contractor.

(i) (1) The Secretary may use the waiver authority described in paragraph (2) only for a particular item listed in (a) and a particular foreign country. (2) This subsection applies to the waiver authority in (d) when the waiver is based on (d)(2) or (d)(3). (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 a waiver takes effect, the Secretary must publish notice of the determination to use this authority in the Federal Register and submit the notice to the congressional defense committees^*. (5) A waiver made under this authority may last no more than one year, for the period the Secretary determines.

(j) (1) The Secretary of Defense must run a process to analyze and assess possible items that might be required to be bought from a manufacturer in the national technology and industrial base. (2) The process must include: (A) designating an official in the Office of the Secretary of Defense to administer the process and related policy; and (B) giving a person or organization that meets the definition of national technology and industrial base in § 4801(1) an opportunity to apply for an item to be given that required-procurement status. At minimum, an application must include: (i) information showing that the applicant meets the § 4801(1) criteria for a manufacturer in the national technology and industrial base; and (ii) for each proposed item: (I) how much the item is used commercially; (II) how many such items current programs of record will buy; (III) how critical the item is to a military unit’s mission; (IV) the estimated cost and other considerations of rebuilding the item’s manufacturing capability if it is not kept in the national technology and industrial base; (V) national-security regulations or restrictions on the item that might not apply to a competitor outside that base; (VI) other Federal, State, and local regulations on the item that might not apply to such a competitor; (VII) how much the item is used in current programs of record; and (VIII) how much the item’s cost and pricing data has been found fair and reasonable. (3) (A) The designated official must give each complete application to the appropriate component acquisition executive within 15 days after receiving it. (B) Within 120 days after receiving a complete application, that executive must review it, decide, and return it to the designated official. (C) For each proposed item, the decision must recommend: (i) including it under this section; (ii) including it with further changes; or (iii) not including it. (D) The decision must also give the reasons and justification. (4) For applications recommended under paragraph (3), the designated official must prepare a legislative proposal for the Secretary to consider.

(k) (1) The rule in (a)(3) applies only to contracts awarded by a military-department Secretary for new construction of an auxiliary ship after enactment of the National Defense Authorization Act for Fiscal Year 2020, using National Defense Sealift Fund or Shipbuilding and Conversion, Navy funds. (2) For this subsection, “auxiliary ship”: (A) for a contract entered into after December 20, 2019, does not include an icebreaker or special mission ship; and (B) for a contract entered into on or after enactment of the National Defense Authorization Act for Fiscal Year 2025, includes an icebreaker or special mission ship unless the Secretary of the Navy certifies to Congress that forecast sales over four years of large medium-speed diesel engines made in the national technology and industrial base will not fall below the minimum sustaining rate^* for plant operations of a diminishing manufacturing source. This section does not define “minimum sustaining rate” or “diminishing manufacturing source.”

(l) (1) No later than November 1, 2024, and every five years after that, the Under Secretary of Defense for Acquisition and Sustainment must review every item described in (a) and (e) and send the congressional defense committees a written recommendation to: (A) keep the item covered; (B) keep it covered with changes; or (C) stop covering it. (2) Each review must cover the five years before the written determination is submitted and must address: (A) the item’s importance to a military unit’s mission or other national-security goals; (B) how much the item is used in current programs of record; (C) how many such items current programs of record will buy; and (D) how much the item’s cost and pricing data has been found fair and reasonable. (3) The written determination must also include the findings of the review and key reasons supporting the recommendation.