50 U.S.C. § 4533 — Other presidential action authorized

Page 1117 TITLE 50—WAR AND NATIONAL DEFENSE § 4533 EX. ORD. NO. 13922. DELEGATING AUTHORITY UNDER THE DEFENSE PRODUCTION ACT TO THE CHIEF EXECUTIVE OFFICER OF THE UNITED STATES INTERNATIONAL DE- VELOPMENT FINANCE CORPORATION TO RESPOND TO THE COVID–19 OUTBREAK Ex. Ord. No. 13922, May 14, 2020, 85 F.R. 30583, pro- vided: By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Defense Production Act of 1950, as amended (50 U.S.C. 4501 et seq.) (the ‘‘Act’’), and sec- tion 301 of title 3, United States Code, it is hereby or- dered as follows: SECTION 1. Policy. In Proclamation 9994 of March 13, 2020 (Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID–19) Outbreak) [50 U.S.C. 1621 note], I declared a national emergency rec- ognizing the threat that the novel (new) coronavirus known as SARS–CoV–2 poses to our Nation’s healthcare systems. In recognizing the public health risk, I noted that on March 11, 2020, the World Health Organization announced that the outbreak of COVID–19 (the disease caused by SARS–CoV–2) can be characterized as a pan- demic. To ensure that our country has the capacity, capa- bility, and strong and resilient domestic industrial base necessary to respond to the COVID–19 outbreak, it is the policy of the United States to further expand do- mestic production of strategic resources needed to re- spond to the COVID–19 outbreak, including strength- ening relevant supply chains within the United States and its territories. It is important to use all resources available to the United States, including executive de- partments and agencies (agencies) with expertise in loan support for private institutions. Accordingly, I am delegating authority under title III of the Act [50 U.S.C. 4531 et seq.] to make loans, make provision for purchases and commitments to purchase, and take ad- ditional actions to create, maintain, protect, expand, and restore the domestic industrial base capabilities, including supply chains within the United States and its territories (‘‘domestic supply chains’’), needed to re- spond to the COVID–19 outbreak. SEC. 2. Delegation of Authority Under Title III of the Act. (a) Notwithstanding Executive Order 13603 of March 16, 2012 (National Defense Resources Prepared- ness) [50 U.S.C. 4553 note], and in addition to the dele- gation of authority in Executive Order 13911 of March 27, 2020 (Delegating Additional Authority Under the De- fense Production Act With Respect to Health and Med- ical Resources to Respond to the Spread of COVID–19) [50 U.S.C. 4511 note], the Chief Executive Officer of the United States International Development Finance Cor- poration (DFC) is delegated the authority of the Presi- dent conferred by sections 302 and 303 of the Act (50 U.S.C. 4532 and 4533), and the authority to implement the Act in subchapter III of chapter 55 of title 50, United States Code (50 U.S.C. 4554, 4555, 4556, and 4560). (b) The Chief Executive Officer of the DFC may use the authority under sections 302 and 303 of the Act, in consultation with the Secretary of Defense, the Sec- retary of Health and Human Services, the Secretary of Homeland Security, and the heads of other agencies as he deems appropriate, for the domestic production of strategic resources needed to respond to the COVID–19 outbreak, or to strengthen any relevant domestic sup- ply chains. (c) The loan authority delegated by this order is lim- ited to loans that create, maintain, protect, expand, or restore domestic industrial base capabilities sup- porting: (i) the national response and recovery to the COVID–19 outbreak; or (ii) the resiliency of any relevant domestic supply chains. (d) Loans extended using the authority delegated by this order shall be made in accordance with the prin- ciples and guidelines outlined in OMB Circular A–11, OMB Circular A–129, and the Federal Credit Reform Act of 1990, as amended (2 U.S.C. 661 et seq.). (e) The Chief Executive Officer of the DFC shall adopt appropriate rules and regulations as may be necessary to implement this order. SEC. 3. Termination. The delegation of authority in this order shall expire upon termination of the 2-year period during which the requirements described in sec- tion 302(c)(1) of the Act (50 U.S.C. 4532(c)(1)) are waived pursuant to title III of division B of the Coronavirus Aid, Relief, and Economic Security Act (Public Law 116–136) [see Legislative Waiver of Loan Limitations note set out under section 4531 of this title]. SEC. 4. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect: (i) the authority granted by law to an executive de- partment or agency, or the head thereof; or (ii) the functions of the Director of the Office of Man- agement and Budget relating to budgetary, administra- tive, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appro- priations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforce- able at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. DONALD J. TRUMP. § 4533. Other presidential action authorized (a) In general (1) In general To create, maintain, protect, expand, or re- store domestic industrial base capabilities es- sential for the national defense, the President may make provision— (A) for purchases of or commitments to purchase an industrial resource or a critical technology item, for Government use or re- sale; (B) for the encouragement of exploration, development, and mining of critical and strategic materials, and other materials; (C) for the development of production ca- pabilities; and (D) for the increased use of emerging tech- nologies in security program applications and the rapid transition of emerging tech- nologies— (i) from Government-sponsored research and development to commercial applica- tions; and (ii) from commercial research and devel- opment to national defense applications. (2) Treatment of certain agricultural commod- ities A purchase for resale under this subsection shall not include that part of the supply of an agricultural commodity which is domestically produced, except to the extent that such do- mestically produced supply may be purchased for resale for industrial use or stockpiling. (3) Terms of sales No commodity purchased under this sub- section shall be sold at less than— (A) the established ceiling price for such commodity, except that minerals, metals, and materials shall not be sold at less than the established ceiling price, or the current domestic market price, whichever is lower; or (B) if no ceiling price has been established, the higher of— Page 1118 TITLE 50—WAR AND NATIONAL DEFENSE § 4533 (i) the current domestic market price for such commodity; or (ii) the minimum sale price established for agricultural commodities owned or controlled by the Commodity Credit Cor- poration, as provided in section 1427 of title 7. (4) Delivery dates No purchase or commitment to purchase any imported agricultural commodity shall specify a delivery date which is more than 1 year after the date of termination of this section. (5) Presidential determinations Except as provided in paragraph (7), the President may not execute a contract under this subsection unless the President, on a non- delegable basis, determines, with appropriate explanatory material and in writing, that— (A) the industrial resource, material, or critical technology item is essential to the national defense; (B) without Presidential action under this section, United States industry cannot rea- sonably be expected to provide the capa- bility for the needed industrial resource, ma- terial, or critical technology item in a time- ly manner; and (C) purchases, purchase commitments, or other action pursuant to this section are the most cost effective, expedient, and practical alternative method for meeting the need. (6) Notification to Congress of shortfall (A) In general Except as provided in paragraph (7), the President shall provide written notice to the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Financial Services of the House of Rep- resentatives of a domestic industrial base shortfall prior to taking action under this subsection to remedy the shortfall. The no- tice shall include the determinations made by the President under paragraph (5). (B) Aggregate amounts If the taking of any action under this sub- section to correct a domestic industrial base shortfall would cause the aggregate out- standing amount of all such actions for such shortfall to exceed $50,000,000, the action or actions may be taken only after the 30-day period following the date on which the Com- mittee on Banking, Housing, and Urban Af- fairs of the Senate and the Committee on Fi- nancial Services of the House of Representa- tives have been notified in writing of the proposed action. (C) Limitation If the taking of any action or actions under this section to correct an industrial resource shortfall would cause the aggregate outstanding amount of all such actions for such industrial resource shortfall to exceed $50,000,000, no such action or actions may be taken, unless such action or actions are au- thorized to exceed such amount by an Act of Congress. (7) Waivers authorized The requirements of paragraphs (1) through (6) may be waived— (A) during a period of national emergency declared by the Congress or the President; or (B) upon a determination by the President, on a nondelegable basis, that action is nec- essary to avert an industrial resource or critical technology item shortfall that would severely impair national defense capa- bility. (b) Exemption for certain limitations Subject to the limitations in subsection (a), purchases and commitments to purchase and sales under subsection (a) may be made without regard to the limitations of existing law (other than section 1341 of title 31), for such quantities, and on such terms and conditions, including ad- vance payments, and for such periods, but not extending beyond a date that is not more than 10 years from the date on which such purchase, purchase commitment, or sale was initially made, as the President deems necessary, except that purchases or commitments to purchase in- volving higher than established ceiling prices (or if no such established ceiling prices exist, currently prevailing market prices) or antici- pated loss on resale shall not be made, unless it is determined that supply of the materials could not be effectively increased at lower prices or on terms more favorable to the Government, or that such purchases are necessary to assure the availability to the United States of overseas supplies. (c) Presidential findings (1) In general The President may take the actions de- scribed in paragraph (2), if the President finds that— (A) under generally fair and equitable ceil- ing prices, for any raw or nonprocessed ma- terial, there will result a decrease in sup- plies from high-cost sources of such mate- rial, and that the continuation of such sup- plies is necessary to carry out the objectives of this subchapter; or (B) an increase in cost of transportation is temporary in character and threatens to im- pair maximum production or supply in any area at stable prices of any materials. (2) Subsidy payments authorized Upon a finding under paragraph (1), the President may make provision for subsidy payments on any such domestically produced material, other than an agricultural com- modity, in such amounts and in such manner (including purchases of such material and its resale at a loss), and on such terms and condi- tions, as the President determines to be nec- essary to ensure that supplies from such high- cost sources are continued, or that maximum production or supply in such area at stable prices of such materials is maintained, as the case may be. (d) Incidental authority The procurement power granted to the Presi- dent by this section shall include the power to transport and store and have processed and re- fined any materials procured under this section. Page 1119 TITLE 50—WAR AND NATIONAL DEFENSE § 4533 (e) Installation of equipment in industrial facili- ties (1) Installation authorized If the President determines that such action will aid the national defense, the President is authorized— (A) to procure and install additional equip- ment, facilities, processes or improvements to plants, factories, and other industrial fa- cilities owned by the Federal Government; (B) to procure and install equipment owned by the Federal Government in plants, factories, and other industrial facilities owned by private persons; (C) to provide for the modification or ex- pansion of privately owned facilities, includ- ing the modification or improvement of pro- duction processes, when taking actions under section 4531 of this title, 4532 of this title, or this section; and (D) to sell or otherwise transfer equipment owned by the Federal Government and in- stalled under this subsection to the owners of such plants, factories, or other industrial facilities. (2) Indemnification The owner of any plant, factory, or other in- dustrial facility that receives equipment owned by the Federal Government under this section shall agree— (A) to waive any claim against the United States under section 9607 or 9613 of title 42; and (B) to indemnify the United States against any claim described in paragraph (1) made by a third party that arises out of the pres- ence or use of equipment owned by the Fed- eral Government. (f) Excess metals, minerals, and materials (1) In general Notwithstanding any other provision of law to the contrary, metals, minerals, and mate- rials acquired pursuant to this section which, in the judgment of the President, are excess to the needs of programs under this chapter, shall be transferred to the National Defense Stockpile established by the Strategic and Critical Materials Stock Piling Act (50 U.S.C. 98 et seq.), when the President deems such ac- tion to be in the public interest. (2) Transfers at no charge Transfers made pursuant to this subsection shall be made without charge against or reim- bursement from funds appropriated for the purposes of the Strategic and Critical Mate- rials Stock Piling Act (50 U.S.C. 98 et seq.), ex- cept that costs incident to such transfer, other than acquisition costs, shall be paid or reim- bursed from such funds. (g) Substitutes When, in the judgement of the President, it will aid the national defense, the President may make provision for the development of sub- stitutes for strategic and critical materials, critical components, critical technology items, and other industrial resources. (Sept. 8, 1950, ch. 932, title III, § 303, as added Pub. L. 111–67, § 7, Sept. 30, 2009, 123 Stat. 2013; amended Pub. L. 113–172, § 4(a), Sept. 26, 2014, 128 Stat. 1897.) TERMINATION OF SECTION For termination of section, see section 4564(a) of this title. Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (f)(1), was in the original ‘‘this Act’’, meaning act Sept. 8, 1950, ch. 932, 64 Stat. 798, known as the Defense Production Act of 1950, which is classified principally to this chapter. For complete classification of this Act to the Code, see sec- tion 4501 of this title and Tables. The Strategic and Critical Materials Stock Piling Act, referred to in subsec. (f), is act June 7, 1939, ch. 190, as revised generally by Pub. L. 96–41, § 2, July 30, 1979, 93 Stat. 319, which is classified generally to subchapter III (§ 98 et seq.) of chapter 5 of this title. For complete classification of this Act to the Code, see section 98 of this title and Tables. CODIFICATION Section was formerly classified to section 2093 of the former Appendix to this title prior to editorial reclassi- fication and renumbering as this section. PRIOR PROVISIONS A prior section 303 of act Sept. 8, 1950, ch. 932, title III, 64 Stat. 801; July 31, 1951, ch. 275, title I, § 103(a), 65 Stat. 133; June 30, 1953, ch. 171, §§ 5, 6, 67 Stat. 130; Aug. 9, 1955, ch. 655, § 3, 69 Stat. 580; June 29, 1956, ch. 474, § 2, 70 Stat. 408; Pub. L. 88–343, § 2, June 30, 1964, 78 Stat. 235; Pub. L. 92–325, § 1, June 30, 1972, 86 Stat. 390; Pub. L. 94–273, § 2(29), Apr. 21, 1976, 90 Stat. 376; Pub. L. 96–41, § 3(c), July 30, 1979, 93 Stat. 325; Pub. L. 96–294, title I, § 104(d), June 30, 1980, 94 Stat. 618; Pub. L. 98–265, §§ 3(c), 4(c), Apr. 17, 1984, 98 Stat. 150, 151; Pub. L. 102–558, title I, § 121(c), (d), Oct. 28, 1992, 106 Stat. 4204, 4206; Pub. L. 107–47, § 4(3), Oct. 5, 2001, 115 Stat. 260, related to pur- chase of raw materials and installation of equipment, prior to the general amendment of title III of this Act by Pub. L. 111–67. AMENDMENTS 2014—Subsec. (a)(5). Pub. L. 113–172, § 4(a)(1)(A), sub- stituted ‘‘, on a non-delegable basis, determines, with appropriate explanatory material and in writing,’’ for ‘‘determines’’ in introductory provisions. Subsec. (a)(5)(C). Pub. L. 113–172, § 4(a)(1)(B)–(D), added subpar. (C). Subsec. (a)(6)(C). Pub. L. 113–172, § 4(a)(2), added sub- par. (C). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2014 AMENDMENT Pub. L. 113–172, § 4(b), Sept. 26, 2014, 128 Stat. 1897, pro- vided that: ‘‘Section 303(a)(6)(C) of the Defense Produc- tion Act of 1950 [50 U.S.C. 4533(a)(6)(C)], as added by subsection (a)(2), shall not apply to a project under- taken pursuant to a determination made before the date of the enactment of this Act [Sept. 26, 2014].’’ INCREASING ACCESS TO MATERIALS NECESSARY FOR NATIONAL SECURITY AND PANDEMIC RECOVERY Requirement described in subsec. (a)(6)(B) of this sec- tion not applicable during the 1-year period beginning on Mar. 27, 2020, and requirement described in subsec. (a)(6)(C) of this section not applicable during the 2-year period beginning on Mar. 27, 2020, see section 4017 of Page 1120 TITLE 50—WAR AND NATIONAL DEFENSE § 4534 Pub. L. 116–136, set out as a note under section 4532 of this title. AUTHORIZATION TO TAKE ACTIONS TO CORRECT THE IN- DUSTRIAL RESOURCE SHORTFALL FOR HIGH-PURITY BERYLLIUM METAL Pub. L. 111–84, div. A, title VIII, § 842, Oct. 28, 2009, 123 Stat. 2418, provided that: ‘‘Notwithstanding any limita- tion in section 303 of the Defense Production Act of 1950 (50 U.S.C. App. 2093) [now 50 U.S.C. 4533], an action may be taken under such section to correct an industrial re- source shortfall or domestic industrial base shortfall for high-purity beryllium metal if such action does not cause the aggregate outstanding amount of all such ac- tions for such shortfall to exceed ‘$85,000,000’.’’ RESOURCE SHORTFALL FOR RADIATION-HARDENED ELECTRONICS Pub. L. 108–195, § 3, Dec. 19, 2003, 117 Stat. 2892, pro- vided that: ‘‘(a) IN GENERAL.—Notwithstanding the limitation contained in [former] section 303(a)(6)(C) of the Defense Production Act of 1950 ([former] 50 U.S.C. App. 2093(a)(6)(C)), the President may take actions under section 303 of the Defense Production Act of 1950 to cor- rect the industrial resource shortfall for radiation- hardened electronics, to the extent that such Presi- dential actions do not cause the aggregate outstanding amount of all such actions to exceed $200,000,000. ‘‘(b) REPORT BY THE SECRETARY.—Before the end of the 6-month period beginning on the date of the enact- ment of this Act [Dec. 19, 2003], the Secretary of De- fense shall submit a report to the Committee on Bank- ing, Housing, and Urban Affairs of the Senate and the Committee on Financial Services of the House of Rep- resentatives describing— ‘‘(1) the current state of the domestic industrial base for radiation-hardened electronics; ‘‘(2) the projected requirements of the Department of Defense for radiation-hardened electronics; ‘‘(3) the intentions of the Department of Defense for the industrial base for radiation-hardened elec- tronics; and ‘‘(4) the plans of the Department of Defense for use of providers of radiation-hardened electronics beyond the providers with which the Department had entered into contractual arrangements under the authority of the Defense Production Act of 1950 [50 U.S.C. 4501 et seq.], as of the date of the enactment of this Act.’’ Pub. L. 107–314, div. A, title VIII, § 829, Dec. 2, 2002, 116 Stat. 2618, provided that: ‘‘Notwithstanding the limita- tion in [former] section 303(a)(6)(C) of the Defense Pro- duction Act of 1950 ([former] 50 U.S.C. App. 2093(a)(6)(C)), action or actions may be taken under sec- tion 303 of that Act to correct the industrial resource shortfall for radiation-hardened electronics, if such ac- tions do not cause the aggregate outstanding amount of all such actions to exceed $106,000,000.’’ Executive Documents DELEGATION OF FUNCTIONS Authority of President under this section delegated to Chief Executive Officer of the United States Inter- national Development Finance Corporation, see section 2 of Ex. Ord. No. 13922, May 14, 2020, 85 F.R. 30583, set out as a note under section 4532 of this title. Authority of President under this section with re- spect to responding to the spread of COVID–19 within the United States delegated to Secretary of Health and Human Services and the Secretary of Homeland Secu- rity, see section 2 of Ex. Ord. No. 13911, Mar. 27, 2020, 85 F.R. 18403, set out as a note under section 4511 of this title. Functions of President under this chapter relating to production, conservation, use, control, distribution, and allocation of energy, delegated to Secretary of En- ergy, see section 4 of Ex. Ord. No. 11790, June 25, 1974, 39 F.R. 23185, set out as a note under section 761 of Title 15, Commerce and Trade. For delegation of certain authority of President under this section, see sections 303(a), 304, 305(b), and 306–308 of Ex. Ord. No. 13603, Mar. 16, 2012, 77 F.R. 16654, 16655, set out as a note under section 4553 of this title. EXECUTIVE WAIVER OF LIMITATIONS Requirements of subsec. (a)(1) to (6) of this section waived during the national emergency declared by Proc. No. 9994, Mar. 13, 2020, 85 F.R. 15337, set out as a note under section 1621 of this title, see section 2(c) of Ex. Ord. No. 13911, Mar. 27, 2020, 85 F.R. 18404, set out as a note under section 4511 of this title. § 4534. Defense Production Act Fund (a) Establishment of Fund There is established in the Treasury of the United States a separate fund to be known as the ‘‘Defense Production Act Fund’’ (in this sec- tion referred to as the ‘‘Fund’’). (b) Moneys in Fund There shall be credited to the Fund— (1) all moneys appropriated for the Fund, as authorized by section 4561 of this title; and (2) all moneys received by the Fund on transactions entered into pursuant to section 4533 of this title. (c) Use of Fund The Fund shall be available to carry out the provisions and purposes of this subchapter, sub- ject to the limitations set forth in this chapter and in appropriations Acts. (d) Duration of Fund Moneys in the Fund shall remain available until expended. (e) Fund balance The Fund balance at the close of each fiscal year shall not exceed $750,000,000, excluding any moneys appropriated to the Fund during that fiscal year or obligated funds. If, at the close of any fiscal year, the Fund balance exceeds $750,000,000, the amount in excess of $750,000,000 shall be paid into the general fund of the Treas- ury. (f) Fund manager The President shall designate a Fund man- ager. The duties of the Fund manager shall in- clude— (1) determining the liability of the Fund in accordance with subsection (g); (2) ensuring the visibility and accountability of transactions engaged in through the Fund; and (3) reporting to the Congress each year re- garding activities of the Fund during the pre- vious fiscal year. (g) Liabilities against Fund When any agreement entered into pursuant to this subchapter after December 31, 1991, imposes any contingent liability upon the United States, such liability shall be considered an obligation against the Fund. (Sept. 8, 1950, ch. 932, title III, § 304, as added Pub. L. 111–67, § 7, Sept. 30, 2009, 123 Stat. 2017.) TERMINATION OF SECTION For termination of section, see section 4564(a) of this title.