https://crsreports.congress.gov
Updated December 15, 2021
Defense Primer: Acquiring Specialty Metals and Sensitive
Materials
Some metals (such as titanium and tungsten) and metal
alloys, as well as strong permanent magnets known as rare
earth magnets, are critical to U.S. Department of Defense
(DOD) operations. These materials are frequently
integrated into components (e.g., integrated circuits,
electrical wiring, or optoelectronic devices) or structures
(e.g., aircraft fuselages or ship hulls) of the military
platforms and weapon systems that enable warfighting
capabilities.
A rare earth element is one of 17 chemical elements, including
the 15 metallic chemical elements with atomic numbers 57
through 71, as well as the chemically similar elements
scandium and yttrium. These materials are considered rare in
spite of their relative abundance throughout the Earth’s crust,
as the extraction and production of such materials can be
difficult and costly. Rare earth magnets produced using rare
earth elements are the strongest known permanent magnets.
There are few, and, in some cases, no known alternatives
for many of these materials, which often have unique
physical properties, such as high material strength coupled
with low density, or resistance to various forms of
corrosion. Many of these materials are subject to sourcing
restrictions or prohibitions in DOD acquisitions.
Congress established these restrictions or prohibitions to
protect the domestic materials industry and ensure the
United States maintains critical production capabilities and
capacity within the defense industrial base. Statutory
restrictions establish that some items that incorporate
certain metals and metal alloys known as specialty metals
generally must be produced or manufactured in the United
States. Other statutory prohibitions establish that some
items that incorporate certain sensitive materials may not be
acquired from specified sources.
Acquiring Specialty Metals
Domestic sourcing restrictions for DOD acquisition of
specialty metals first appeared in the FY1973 DOD
appropriations bill (P.L. 92-570) as an expansion of
domestic content restrictions on Departmental purchases of
food, clothing, and other goods. These restrictions are
commonly known as the Berry Amendment. The Berry
Amendment sourcing restrictions were included in annual
DOD appropriations legislation from 1941 until 2002, when
they were permanently codified as 10 U.S.C. §2533a by the
FY2002 National Defense Authorization Act (NDAA, P.L.
107-107). In 2006, the FY2007 NDAA (P.L. 109-364)
moved the specialty metal-related provisions from 10
U.S.C. §2533a to 10 U.S.C. §2533b.
The domestic sourcing mandate for specialty metals only
applies to the Defense Department.
Applicability of Restrictions
The specialty metals domestic sourcing restrictions apply to
all DOD prime contracts and subcontracts. For the purposes
of the restriction, 10 U.S.C. §2533b defines a specialty
metal as any of the following metals or metal alloys:
Steel with a maximum alloy content exceeding one or more of
the following limits: manganese, 1.65%; silicon, 0.60%;
copper, 0.60%; or containing more than 0.25% of any of the
following elements: aluminum, chromium, cobalt, niobium
(columbium), molybdenum, nickel, titanium, tungsten, or
vanadium.
Metal alloys consisting of nickel, iron-nickel, and cobalt base
alloys containing a total of other alloying metals (except iron)
in excess of 10%.
Titanium and titanium alloys.
Zirconium and zirconium base alloys.
DOD uses the foundry location where the final melting or
similar production of a specialty metal takes place to
determine its origin. For example, titanium sponge—
unwrought titanium that has not been melted—that has been
manufactured in Kazakhstan, shipped to the United States,
and melted into ingots at a foundry in Ohio would be
considered compliant with the specialty metals domestic
sourcing mandate. Under the specialty metals restrictions,
DOD generally may not acquire certain military platforms
or weapon systems—or components of these platforms and
systems—that contain any amount of a specialty metal that
was not melted or produced in the United States.
The restriction applies to aircraft; missile and space
systems; ships; tank and automotive items; weapon
systems; and ammunition. DOD and its prime contractors
are also prohibited from directly acquiring any specialty
metal (e.g., metal sheets, rods, plates) if it was not melted or
produced in the United States.
Exceptions
Law and policy provide a number of exceptions to the
specialty metals sourcing mandate, including the following
selected examples:
circumstances where the Secretary of Defense or a secretary of
a military department determines that compliant specialty
metal of satisfactory quality and sufficient quantity, and in the
required form, cannot be procured as and when needed;
