Updated December 15, 2021
Defense Primer: Acquiring Specialty Metals and Sensitive
Materials
Some metals (such as titanium and tungsten) and metal
FY2002 National Defense Authorization Act (NDAA, P.L.
alloys, as well as strong permanent magnets known as rare
107-107). In 2006, the FY2007 NDAA (P.L. 109-364)
earth magnets, are critical to U.S. Department of Defense
moved the specialty metal-related provisions from 10
(DOD) operations. These materials are frequently
U.S.C. §2533a to 10 U.S.C. §2533b.
integrated into components (e.g., integrated circuits,
The domestic sourcing mandate for specialty metals only
electrical wiring, or optoelectronic devices) or structures
applies to the Defense Department.
(e.g., aircraft fuselages or ship hulls) of the military
platforms and weapon systems that enable warfighting
Applicability of Restrictions
capabilities.
The specialty metals domestic sourcing restrictions apply to
all DOD prime contracts and subcontracts. For the purposes
A rare earth element is one of 17 chemical elements, including
of the restriction, 10 U.S.C. §2533b defines a specialty
the 15 metallic chemical elements with atomic numbers 57
metal as any of the following metals or metal alloys:
through 71, as well as the chemically similar elements
Steel with a maximum alloy content exceeding one or more of
scandium and yttrium. These materials are considered rare in
the following limits: manganese, 1.65%; silicon, 0.60%;
spite of their relative abundance throughout the Earth’s crust,
copper, 0.60%; or containing more than 0.25% of any of the
as the extraction and production of such materials can be
following elements: aluminum, chromium, cobalt, niobium
difficult and costly. Rare earth magnets produced using rare
(columbium), molybdenum, nickel, titanium, tungsten, or
earth elements are the strongest known permanent magnets.
vanadium.
Metal alloys consisting of nickel, iron-nickel, and cobalt base
There are few, and, in some cases, no known alternatives
alloys containing a total of other alloying metals (except iron)
for many of these materials, which often have unique
in excess of 10%.
physical properties, such as high material strength coupled
Titanium and titanium alloys.
with low density, or resistance to various forms of
Zirconium and zirconium base alloys.
corrosion. Many of these materials are subject to sourcing
restrictions or prohibitions in DOD acquisitions.
DOD uses the foundry location where the final melting or
similar production of a specialty metal takes place to
Congress established these restrictions or prohibitions to
determine its origin. For example, titanium sponge—
protect the domestic materials industry and ensure the
unwrought titanium that has not been melted—that has been
United States maintains critical production capabilities and
manufactured in Kazakhstan, shipped to the United States,
capacity within the defense industrial base. Statutory
and melted into ingots at a foundry in Ohio would be
restrictions establish that some items that incorporate
considered compliant with the specialty metals domestic
certain metals and metal alloys known as specialty metals
sourcing mandate. Under the specialty metals restrictions,
generally must be produced or manufactured in the United
DOD generally may not acquire certain military platforms
States. Other statutory prohibitions establish that some
or weapon systems—or components of these platforms and
items that incorporate certain sensitive materials may not be
systems—that contain any amount of a specialty metal that
acquired from specified sources.
was not melted or produced in the United States.
The restriction applies to aircraft; missile and space
Sourcing Restrictions in Acquisitions
systems; ships; tank and automotive items; weapon
For more information, see CRS Report R43354, Domestic
systems; and ammunition. DOD and its prime contractors
Content Restrictions: The Buy American Act and Complementary
are also prohibited from directly acquiring any specialty
Provisions of Federal Law.
metal (e.g., metal sheets, rods, plates) if it was not melted or
produced in the United States.
Acquiring Specialty Metals
Exceptions
Domestic sourcing restrictions for DOD acquisition of
Law and policy provide a number of exceptions to the
specialty metals first appeared in the FY1973 DOD
specialty metals sourcing mandate, including the following
appropriations bill (P.L. 92-570) as an expansion of
selected examples:
domestic content restrictions on Departmental purchases of
food, clothing, and other goods. These restrictions are
circumstances where the Secretary of Defense or a secretary of
commonly known as the Berry Amendment. The Berry
a military department determines that compliant specialty
Amendment sourcing restrictions were included in annual
metal of satisfactory quality and sufficient quantity, and in the
DOD appropriations legislation from 1941 until 2002, when
required form, cannot be procured as and when needed;
they were permanently codified as 10 U.S.C. §2533a by the
https://crsreports.congress.gov
Defense Primer: Acquiring Specialty Metals and Sensitive Materials
acquisitions outside the United States in support of combat
sensitive materials melted or produced in the four specified
operations or contingency operations;
countries. The prohibitions apply to aircraft; missile and
acquisitions for which the use of other-than-competitive
space systems; ships; tank and automotive items; weapon
procedures has been approved when the need for materials or
systems; and ammunition.
end items is of an unusual and compelling urgency;
DOD is also generally prohibited from selling covered
acquisitions where the prime contract is at or below the
materials from the National Defense Stockpile to the
simplified acquisition threshold (generally $250,000);
specified nations, or to any third party reasonably believed
situations where an acquisition furthers an international
to be acting as a broker or agent for a covered nation or an
agreement (e.g., trade or offset agreements) with a qualifying
entity in a covered nation. The National Defense Stockpile
country;
was established by Congress in 1939 (50 U.S.C. §§98 et
purchases of electronic components, such as diodes or
seq.) to acquire and retain strategic and critical materials to
integrated circuits, unless the Secretary of Defense, pursuant to
decrease or prevent the potential dependence of the United
a recommendation of the Strategic Materials Protection Board,
States on foreign sources for supplies of these materials in
determines that the domestic availability of a particular
times of national emergency.
electronic component is critical to national security;
covered items incorporating specialty metals that were not
Exceptions
melted in the United States if the total amount of noncompliant
Law and policy provide limited exceptions to these
specialty metals in such an item does not exceed 2% of the
prohibitions, applicable to:
total weight of specialty metals in the item;
commercially available off-the-shelf (COTS) items containing
circumstances where the Secretary of Defense determines that
specialty metals, except in certain circumstances;
compliant materials of satisfactory quality and quantity, in the
acquisitions of some commercially available items (e.g.,
required form, cannot be procured as and when needed at a
fasteners, high-performance magnets);
reasonable price;
acquisition of commercial derivative military articles in certain
procurement or sale of covered materials, or end items
circumstances; and
containing such materials, outside of the United States for use
items containing noncompliant materials if the acceptance of
outside of the United States;
such items is necessary to the national security interests of the
acquisitions at or below the simplified acquisition threshold;
United States.
purchase of a COTS end item containing covered materials,
barring COTS end items that are comprised of 50% or more of
Acquiring Sensitive Materials
covered sensitive materials by weight, or mill products (e.g.,
DOD sourcing restrictions for the acquisition of sensitive
metal sheets) that have not been incorporated into an end item
materials first appeared in the FY2019 NDAA (P.L. 115-
or component;
232). These restrictions were permanently codified as 10
purchase of electronic devices containing covered materials,
U.S.C. §2533c.
unless the Secretary of Defense, pursuant to a recommendation
of the Strategic Materials Protection Board, determines that
In contrast to the specialty metals restrictions, 10 U.S.C.
the domestic availability of a particular electronic device is
§2533c establishes that these materials, or finished products
critical to national security; or
containing these materials, may not generally be sourced
purchase of an end item containing a neodymium-iron-boron
from four countries: the Democratic People’s Republic of
Korea, the People’s Republic of China, the Russian
magnet manufactured from recycled material if the milling of
the recycled material and sintering of the final magnet takes
Federation, or the Islamic Republic of Iran. These sourcing
place in the United States.
prohibitions only apply to the Department of Defense.
In an explanatory statement accompanying the FY2022
Relevant Statutes and Regulations
NDAA, Congress expressed concern that the
Title 10, U.S. Code, §2533b and §2533c
aforementioned countries were attempting to circumvent
these prohibitions and directed DOD to provide certain
DFARS Subparts 225.7003 and 225.7018
congressional committees with a briefing on the matter, to
include proposals for countering such attempts.
CRS Products
Applicability of Prohibitions
CRS In Focus IF10548, Defense Primer: U.S. Defense Industrial
Base
The sourcing prohibitions for sensitive materials apply to
all DOD prime contracts and subcontracts at any tier.
CRS In Focus IF10609, Defense Primer: The Berry and Kissell
Covered materials include:
Amendments
CRS In Focus IF11574, National Stockpiles: Background and
samarium-cobalt magnets;
Issues for Congress
neodymium-iron-boron magnets;
tungsten metal powder;
CRS Report R46618, An Overview of Rare Earth Elements and
tungsten heavy alloy or any finished or semi-finished
Related Issues for Congress
component containing tungsten heavy alloy; and
tantalum metals and alloys.
Heidi M. Peters, Analyst in U.S. Defense Acquisition
Under these sourcing prohibitions, DOD generally may not
Policy
directly acquire sensitive materials that were mined,
refined, separated, or melted in the four specified countries,
IF11226
or military platforms or weapon systems containing
https://crsreports.congress.gov
Defense Primer: Acquiring Specialty Metals and Sensitive Materials
Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to
congressional committees and Members of Congress. It operates solely at the behest of and under the direction of Congress.
Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has
been provided by CRS to Members of Congress in connection with CRS’s institutional role. CRS Reports, as a work of the
United States Government, are not subject to copyright protection in the United States. Any CRS Report may be
reproduced and distributed in its entirety without permission from CRS. However, as a CRS Report may include
copyrighted images or material from a third party, you may need to obtain the permission of the copyright holder if you
wish to copy or otherwise use copyrighted material.
https://crsreports.congress.gov | IF11226 · VERSION 7 · UPDATED