10 U.S.C. § 4872 (ARMED FORCES)
§ 4872. Acquisition of sensitive materials from non-allied foreign nations: prohibition
(a) In General.—
Except as provided in subsection (c) or (e), the Secretary of Defense may not—
(1) procure any covered material melted or produced in any covered nation, or any end item that contains a covered material manufactured in any covered nation, except as provided by subsection (c); or
(2) sell any material from the National Defense Stockpile, if the National Defense Stockpile Manager determines that such a sale is not in the national interests of the United States, to—
(A) any covered nation; or
(B) any third party that the Secretary reasonably believes is acting as a broker or agent for a covered nation or an entity in a covered nation.
(b) Applicability.—
Subsection (a) shall apply to prime contracts and subcontracts at any tier.
(c) Exceptions.—
Subsection (a)(1) does not apply under the following circumstances:
(1) If the Secretary of Defense or the Secretary of the military department concerned—
(A) identifies a specific end item for which a specific covered material of satisfactory quality and quantity, in the required form, cannot be procured as and when needed at a reasonable price; and
(B) waives subsection (a)(1) for such specific end item and such specific covered material for a period not exceeding 36 months.
(2) To the procurement of an end item described in subsection (a)(1) or the sale of any covered material described under subsection (a)(1) by the Secretary outside of the United States in support of contingency operations or for use outside of the United States.
(3) To the purchase by the Secretary of an end item containing a covered material that is—
(A) a commercially available off-the-shelf item (as defined in section 104 of title 41), other than—
(i) a commercially available off-the-shelf item that is 50 percent or more tungsten by weight; or
(ii) a mill product, such as bar, billet, slab, wire, cube, sphere, block, blank, plate, or sheet, that has not been incorporated into an end item, subsystem, assembly, or component;
(B) an electronic device, 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 device is critical to national security; or
(C) a neodymium-iron-boron magnet manufactured from recycled material if the milling of the recycled material and sintering of the final magnet takes place in the United States.
(d) Delegation.—
The authorities in subsection (c)—
(1) may be delegated to the head of contracting activity for the relevant component for an exception for a single acquisition program;
(2) may be delegated to the senior acquisition executive of a military department for an exception for multiple programs within such military department; and
(3) may be delegated to the Undersecretary of Defense for Acquisition and Sustainment for an exception for more than one military department.
(e) National Security Waiver.—
(1) In general.—
Notwithstanding subsection (a), the Secretary of Defense of the Secretary 1 or the Secretary of the military department concerned, may accept the delivery of an end item containing covered material manufactured in a covered nation if the Secretary determines in writing that acceptance of such end item is necessary to the national security interests of the United States.
(2) Delegation.—
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 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).
(f) Definitions.—
In this section:
(1) Covered material.—
The term “covered material” means—
(A) samarium-cobalt magnets;
(B) neodymium-iron-boron magnets;
(C) tungsten metal powder;
(D) tungsten heavy alloy or any finished or semi-finished component containing tungsten heavy alloy; and
(E) tantalum metals and alloys.
(2) Covered nation.—
The term “covered nation” means—
(A) the Democratic People’s Republic of North Korea;
(B) the People’s Republic of China;
(C) the Russian Federation; and
(D) the Islamic Republic of Iran.
(3) End item.—
The term “end item” has the meaning given in section 4863(m) of this title.
(Added Pub. L. 115–232, div. A, title VIII, § 871(a), Aug. 13, 2018, 132 Stat. 1904, § 2533c; amended Pub. L. 116–92, div. A, title VIII, § 849, Dec. 20, 2019, 133 Stat. 1508; renumbered § 4872 and amended Pub. L. 116–283, div. A, title VIII, § 844(a), title XVIII, § 1870(d)(2), (3), Jan. 1, 2021, 134 Stat. 3766, 4286; Pub. L. 117–81, div. A, title XVII, § 1701(t)(2)(B), (C), (3), Dec. 27, 2021, 135 Stat. 2150; Pub. L. 117–263, div. A, title XIV, § 1411(d)(2)(B), Dec. 23, 2022, 136 Stat. 2872; Pub. L. 118–31, div. A, title VIII, § 834, Dec. 22, 2023, 137 Stat. 337; Pub. L. 118–159, div. A, title VIII, § 844(b), Dec. 23, 2024, 138 Stat. 1991.)
heading: Amendment of Subsections (a)(1) and (c)(3)(A)(i)
text: Pub. L. 116–283, div. A, title VIII, § 844, Jan. 1, 2021, 134 Stat. 3766, provided that, effective 6 years after Jan. 1, 2021, section 2533c of this title, which is now this section, is amended as follows:
(1) in subsection (a)(1), by striking “material melted” and inserting “material mined, refined, separated, melted,”; and
(2) in subsection (c)(3)(A)(i), by striking “tungsten” and inserting “covered material”.
See Codification and 2021 Amendment notes below.
heading: Editorial Notes
heading: Codification
text: Pub. L. 116–283, § 1870(d)(2), which had initially directed the transfer of section 2536 of this title to this section, was amended by Pub. L. 117–81, § 1701(t)(2)(B), (C), and, after that amendment, such transfer was no longer directed. Instead, Pub. L. 116–283, as amended by Pub. L. 117–81, transferred section 2533c of this title to this section and section 2536 of this title to section 4874.
Amendments by section 844(a) of Pub. L. 116–283, which were directed to section 2533c of this title effective 5 years after Jan. 1, 2021, are to be executed to this section, to reflect the probable intent of Congress and the renumbering of section 2533c as this section by Pub. L. 116–283, as amended by Pub. L. 117–81, effective Jan. 1, 2022.
heading: Amendments
text: 2024—Subsec. (a). Pub. L. 118–159, § 844(b)(1), inserted “or (e)” after “subsection (c)” in introductory provisions.
Subsec. (c)(1). Pub. L. 118–159, § 844(b)(2)(A), inserted “or the Secretary of the military department concerned” after “Secretary of Defense” in introductory provisions.
Subsec. (c)(2). Pub. L. 118–159, § 844(b)(2)(B), inserted “in support of contingency operations or” before “for use outside”.
Subsecs. (d) to (f). Pub. L. 118–159, § 844(b)(3), (4), added subsecs. (d) and (e) and redesignated former subsec. (d) as (f).
2023—Subsec. (c). Pub. L. 118–31, § 834(1), substituted “Subsection (a)(1)” for “Subsection (a)” in introductory provisions.
Subsec. (c)(1). Pub. L. 118–31, § 834(2), substituted “Defense—” for “Defense determines that covered materials”, inserted subpar. (A) designation and “identifies a specific end item for which a specific covered material” before “of satisfactory quality”, and added subpar. (B).
2022—Subsec. (c)(3)(B). Pub. L. 117–263 substituted “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)” for “Strategic Materials Protection Board pursuant to section 187 of this title”.
2021—Pub. L. 116–283, § 1870(d)(3)(B), as amended by Pub. L. 117–81, § 1701(t)(3), amended section catchline generally. Prior to amendment, section catchline read as follows: “Prohibition on acquisition of sensitive materials from non-allied foreign nations”.
Pub. L. 116–283, § 1870(d)(2), as amended by Pub. L. 117–81, § 1701(t)(2)(B), (C), renumbered section 2533c of this title as this section.
Subsec. (a)(1). Pub. L. 116–283, § 844(a)(1), substituted “material mined, refined, separated, melted,” for “material melted”. See Codification note above.
Subsec. (c)(3)(A)(i). Pub. L. 116–283, § 844(a)(2), substituted “covered material” for “tungsten”. See Codification note above.
Subsec. (d)(3). Pub. L. 116–283, § 1870(d)(3)(A), as amended by Pub. L. 117–81, § 1701(t)(3), substituted “section 4863(m)” for “section 2533b(m)”.
2019—Subsec. (a)(2). Pub. L. 116–92, § 849(a), substituted “material” for “covered material” in introductory provisions.
Subsec. (d)(1)(E). Pub. L. 116–92, § 849(b), added subpar. (E).
heading: Statutory Notes and Related Subsidiaries
heading: Effective Date of 2021 Amendment
text: Amendment by Pub. L. 117–81 applicable as if included in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and note below for section 1870(d)(2), (3) of Pub. L. 116–283.
Pub. L. 116–283, div. A, title VIII, § 844(b), Jan. 1, 2021, 134 Stat. 3766, as amended by Pub. L. 118–31, div. A, title VIII, § 854, Dec. 22, 2023, 137 Stat. 345, provided that: “The amendments made by subsection (a) [amending this section] shall take effect on the date that is 6 years after the date of the enactment of this Act [Jan. 1, 2021].”
Amendment by section 1870(d)(2), (3) 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.