50 USC - Chapter 55 - Defence Production - § 4501-4568

§ 4404 TITLE 50—WAR AND NATIONAL DEFENSE Page 1074

Section 4402, Mar. 8, 1946, ch. 82, § 3, 60 Stat. 41; Pub. CHAPTER 55—DEFENSE PRODUCTION L. 97–31, § 12(153), Aug. 6, 1981, 95 Stat. 167; Pub. L. 101–225, title III, § 307(12), Dec. 12, 1989, 103 Stat. 1925, re- Sec. lated to definitions. 4501. Short title.

Section 4403, Mar. 8, 1946, ch. 82, § 5, 60 Stat. 43; June 4502. Declaration of policy. 28, 1947, ch. 161, § 2, 61 Stat. 191; June 30, 1950, ch. 427, § 3, SUBCHAPTER I—PRIORITIES AND ALLOCATIONS 64 Stat. 308; Aug. 31, 1954, ch. 1175, 68 Stat. 1050; Pub. L. 97–31, § 12(155), Aug. 6, 1981, 95 Stat. 167; Pub. L. 101–225, 4511. Priority in contracts and orders. title III, § 307(12), Dec. 12, 1989, 103 Stat. 1925, related to 4512. Hoarding of designated scarce materials. charter of vessels. 4513. Penalties. 4514. Limitation on actions without congressional Statutory Notes and Related Subsidiaries authorization. 4515. Presidential power to ration gasoline among SHORT TITLE classes of end-users unaffected. Act Mar. 8, 1946, ch. 82, § 1, 60 Stat. 41, which provided 4516. Designation of energy as a strategic and crit- that act Mar. 8, 1946, could be cited as the ‘‘Merchant ical material. Ship Sales Act of 1946’’, was repealed by Pub. L. 115–91, 4517. Strengthening domestic capability. div. C, title XXXV, § 3502(a)(1), Dec. 12, 2017, 131 Stat. 4518. Modernization of small business suppliers. 1910. SUBCHAPTER II—EXPANSION OF PRODUCTIVE CAPACITY AND SUPPLY TERMINATION DATE 4531. Presidential authorization for the national Act Mar. 8, 1946, ch. 82, § 14, 60 Stat. 50, as amended defense. June 28, 1947, ch. 161, § 1, 61 Stat. 190; Feb. 27, 1948, ch. 4532. Loans to private business enterprises. 78, § 1(a), 62 Stat. 38; Feb. 28, 1949, ch. 12, 63 Stat. 9; June 4533. Other presidential action authorized. 29, 1949, ch. 281, § 1, 63 Stat. 349; June 30, 1950, ch. 427, § 1, 4534. Defense Production Act Fund. 64 Stat. 308; Aug. 17, 1950, ch. 725, 64 Stat. 452, which 4535. Reports on exercise of authorities. provided that no contract of sale was to be made under act Mar. 8, 1946, after Jan. 15, 1951, and no contract of SUBCHAPTER III—GENERAL PROVISIONS charter was to be made under that act after June 30, 4551. Small business. 1950, except as provided under 50 U.S.C. 4403(e), (f), was 4552. Definitions. repealed by Pub. L. 115–91, div. C, title XXXV, 4553. Civilian personnel.

§ 3502(a)(1), Dec. 12, 2017, 131 Stat. 1910. 4554. Regulations and orders. GREAT LAKES VESSELS 4555. Investigations; records; reports; subpoenas; right to counsel. Act Sept. 28, 1950, ch. 1093, § 3, 64 Stat. 1078, provided 4556. Jurisdiction of courts; injunctions; venue; that contracts for the sale of vessels for exclusive use process; effect of termination of provisions. on the Great Lakes could be made until Dec. 31, 1950, 4557. Liability for compliance with invalid regula- and transfer to the Great Lakes of such vessels was re- tions; discrimination against orders or con- quired to be completed by Dec. 31, 1951. tracts affected by priorities or allocations. 4558. Voluntary agreements and plans of action for

§ 4404. Repealed or Transferred preparedness programs and expansion of production capacity and supply. Editorial Notes 4559. Public participation in rulemaking. CODIFICATION 4560. Employment of personnel; appointment poli- cies; nucleus executive reserve; use of con- Section was comprised of section 8 of act Mar. 8, 1946, fidential information by employees; print- ch. 82, 60 Stat. 45, as amended. Subsections (a) to (c) of ing and distribution of reports. section 8 of act Mar. 8, 1946, were repealed by Pub. L. 4561. Authorization of appropriations; availability 101–225, title III, § 307(12), Dec. 12, 1989, 103 Stat. 1925. of funds. Subsection (d) of section 8 of act Mar. 8, 1946, was redes- 4562. Territorial application of chapter. ignated as and transferred to section 56308 of Title 46, 4563. Separability. Shipping, by Pub. L. 115–91, div. C, title XXXV, 4564. Termination of chapter.

§ 3502(a)(2), Dec. 12, 2017, 131 Stat. 1910. 4565. Authority to review certain mergers, acquisi- Section was formerly classified to section 1741 of the tions, and takeovers. former Appendix to this title prior to editorial reclassi- 4566. Prohibition on purchase of United States de- fication and renumbering as this section. fense contractors by entities controlled by foreign governments.

§ 4405. Transferred 4567. Defense Production Act Committee. 4568. Annual report on impact of offsets. Editorial Notes TERMINATION DATE CODIFICATION For termination of certain provisions of this Section, Mar. 8, 1946, ch. 82, § 11, 60 Stat. 49, as amend- chapter, see section 4564(a) of this title. ed, was redesignated as and transferred to section 57100 of Title 46, Shipping, by Pub. L. 115–91, div. C, title XXXV, § 3502(a)(3), Dec. 12, 2017, 131 Stat. 1910. Editorial Notes Section was formerly classified to section 1744 of the CODIFICATION former Appendix to this title prior to editorial reclassi- fication and renumbering as this section. Act Sept. 8, 1950, ch. 932, 64 Stat. 798, comprising this chapter, was formerly set out in the Appendix to this

§ 4406. Repealed. Pub. L. 115–91, div. C, title title, prior to the elimination of the Appendix to this XXXV, § 3502(a)(1), Dec. 12, 2017, 131 Stat. title and the editorial reclassification of the Act as this 1910 chapter. For disposition of sections of the former Ap- pendix to this title, see Table II, set out preceding sec- Section, act Mar. 8, 1946, ch. 82, § 12, 60 Stat. 49; Sept. tion 1 of this title. 28, 1950, ch. 1093, §§ 1, 2, 64 Stat. 1078; Pub. L. 97–31, Chapter is comprised of the portions of act Sept. 8,

§ 12(158), Aug. 6, 1981, 95 Stat. 168; Pub. L. 101–225, title 1950, ch. 932, as amended, that had not previously been III, § 307(12), Dec. 12, 1989, 103 Stat. 1925, related to re- repealed when the Act was editorially reclassified as conversion of vessels for normal commercial operation. this chapter. As enacted, this Act contained titles I Page 1075 TITLE 50—WAR AND NATIONAL DEFENSE § 4501 through VII. Titles II, IV, V, and VI of the Act were re- may be cited as the ‘Defense Production Act Amend- pealed by Pub. L. 111–67, § 2(a)(2), Sept. 30, 2009, 123 Stat. ments of 1992’.’’ 2007. Titles I, III, and VII of the Act have been codified in this chapter to appear as subchapters I to III, respec- SHORT TITLE OF 1991 AMENDMENT tively. For complete classification of this Act to the Pub. L. 102–99, § 1, Aug. 17, 1991, 105 Stat. 487, provided Code, see Tables. that: ‘‘This Act [see Tables for classification] may be cited as the ‘Defense Production Act Extension and

§ 4501. Short title Amendments of 1991’.’’ This chapter, divided into subchapters, may be SHORT TITLE OF 1986 AMENDMENT cited as ‘‘the Defense Production Act of 1950’’. Pub. L. 99–441, § 1, Oct. 3, 1986, 100 Stat. 1117, provided (Sept. 8, 1950, ch. 932, § 1, 64 Stat. 798.) that: ‘‘This Act [see Tables for classification] may be cited as the ‘Defense Production Act Amendments of Editorial Notes 1986’.’’ REFERENCES IN TEXT SHORT TITLE OF 1984 AMENDMENT Pub. L. 98–265, § 1, Apr. 17, 1984, 98 Stat. 149, provided This chapter, referred to in text, was in the original that: ‘‘This Act [see Tables for classification] may be ‘‘this Act’’, meaning act Sept. 8, 1950, ch. 932, 64 Stat. cited as the ‘Defense Production Act Amendments of 798, known as the Defense Production Act of 1950, which 1984’.’’ is classified principally to this chapter. For complete classification of this Act to the Code, see Tables. SHORT TITLE OF 1980 AMENDMENT CODIFICATION Pub. L. 96–294, title I, part A (§§ 101–107), § 101, June 30, 1980, 94 Stat. 617, provided that: ‘‘This part [see Tables Section was formerly classified to section 2061 of the for classification] may be cited as the ‘Defense Produc- former Appendix to this title prior to editorial reclassi- tion Act Amendments of 1980’.’’ fication and renumbering as this section. SHORT TITLE OF 1977 AMENDMENT Statutory Notes and Related Subsidiaries Pub. L. 95–37, § 1, June 1, 1977, 91 Stat. 178, provided: SHORT TITLE OF 2018 AMENDMENT ‘‘That this Act [see Tables for classification] may be cited as the ‘Defense Production Act Extension Amend- Pub. L. 115–232, div. A, title XVII, § 1701, Aug. 13, 2018, ments of 1977’.’’ 132 Stat. 2174, provided that: ‘‘This subtitle [subtitle A (§§ 1701–1728) of title XVII of div. A of Pub. L. 115–232, SHORT TITLE OF 1975 AMENDMENT amending section 4565 of this title and enacting provi- Pub. L. 94–152, § 1, Dec. 16, 1975, 89 Stat. 810, provided: sions set out as notes under section 4565 of this title] ‘‘That this Act [see Tables for classification] may be may be cited as the ‘Foreign Investment Risk Review cited as the ‘Defense Production Act Amendments of Modernization Act of 2018’.’’ 1975’.’’ SHORT TITLE OF 2009 AMENDMENT SHORT TITLE OF 1974 AMENDMENT Pub. L. 111–67, § 1(a), Sept. 30, 2009, 123 Stat. 2006, pro- Pub. L. 93–426, § 1, Sept. 30, 1974, 88 Stat. 1166, pro- vided that: ‘‘This Act [see Tables for classification] vided: ‘‘That this Act [see Tables for classification] may be cited as the ‘Defense Production Act Reauthor- may be cited as the ‘Defense Production Act Amend- ization of 2009’.’’ ments of 1974’.’’ SHORT TITLE OF 2008 AMENDMENT SHORT TITLE OF 1955 AMENDMENT Pub. L. 110–367, § 1, Oct. 8, 2008, 122 Stat. 4026, provided Act Aug. 9, 1955, ch. 655, § 1, 69 Stat. 580, provided: that: ‘‘This Act [see Tables for classification] may be ‘‘That this Act [see Tables for classification] may be cited as the ‘Defense Production Act Extension and Re- cited as the ‘Defense Production Act Amendments of authorization of 2008’.’’ 1955’.’’ SHORT TITLE OF 2007 AMENDMENT SHORT TITLE OF 1953 AMENDMENT Pub. L. 110–49, § 1(a), July 26, 2007, 121 Stat. 246, pro- Act June 30, 1953, ch. 171, § 1, 67 Stat. 129, provided: vided that: ‘‘This Act [see Tables for classification] ‘‘That this Act [see Tables for classification] may be may be cited as the ‘Foreign Investment and National cited as the ‘Defense Production Act Amendments of Security Act of 2007’.’’ 1953’.’’ SHORT TITLE OF 2003 AMENDMENT SHORT TITLE OF 1952 AMENDMENT Pub. L. 108–195, § 1, Dec. 19, 2003, 117 Stat. 2892, pro- Act June 30, 1952, ch. 530, § 1, 66 Stat. 296, provided: vided that: ‘‘This Act [see Tables for classification] ‘‘That this Act [see Tables for classification] may be may be cited as the ‘Defense Production Act Reauthor- cited as the ‘Defense Production Act Amendments of ization of 2003’.’’ 1952’.’’ SHORT TITLE OF 2001 AMENDMENT SHORT TITLE OF 1951 AMENDMENT Pub. L. 107–47, § 1, Oct. 5, 2001, 115 Stat. 260, provided Act July 31, 1951, ch. 275, § 1, 65 Stat. 131, provided: that: ‘‘This Act [see Tables for classification] may be ‘‘That this Act [see Tables for classification] may be cited as the ‘Defense Production Act Amendments of cited as the ‘Defense Production Act Amendments of 2001’.’’ 1951’.’’ SHORT TITLE OF 1995 AMENDMENT Executive Documents Pub. L. 104–64, § 1, Dec. 18, 1995, 109 Stat. 689, provided that: ‘‘This Act [see Tables for classification] may be DELEGATION OF FUNCTIONS cited as the ‘Defense Production Act Amendments of Functions of President under this chapter relating to 1995’.’’ production, conservation, use, control, distribution, and allocation of energy, delegated to Secretary of En- SHORT TITLE OF 1992 AMENDMENT ergy, see section 4 of Ex. Ord. No. 11790, eff. June 25, Pub. L. 102–558, § 1(a), Oct. 28, 1992, 106 Stat. 4198, pro- 1974, 39 F.R. 23185, set out as a note under section 761 vided that: ‘‘This Act [see Tables for classification] of Title 15, Commerce and Trade.

§ 4502 TITLE 50—WAR AND NATIONAL DEFENSE Page 1076 For delegation of certain authority of President for military production and other national de- under this chapter relating to national defense resource fense purposes is deeply and directly influ- preparedness and statement of related policy, see Ex. enced by— Ord. No. 13603, Mar. 16, 2012, 77 F.R. 16651, set out as a (A) the overall competitiveness of the in- note under section 4553 of this title. dustrial economy of the United States; and

§ 4502. Declaration of policy (B) the ability of industries in the United States, in general, to produce internation- (a) Findings ally competitive products and operate prof- Congress finds that— itably while maintaining adequate research (1) the security of the United States is de- and development to preserve competitive- pendent on the ability of the domestic indus- ness with respect to military and civilian trial base to supply materials and services for production; and the national defense and to prepare for and re- spond to military conflicts, natural or man- (8) the inability of industries in the United caused disasters, or acts of terrorism within States, especially smaller subcontractors and the United States; suppliers, to provide vital parts and compo- (2) to ensure the vitality of the domestic in- nents and other materials would impair the dustrial base, actions are needed— ability to sustain the Armed Forces of the (A) to promote industrial resources pre- United States in combat for longer than a paredness in the event of domestic or foreign short period. threats to the security of the United States; (b) Statement of policy (B) to support continuing improvements in It is the policy of the United States that— industrial efficiency and responsiveness; (1) to ensure the adequacy of productive ca- (C) to provide for the protection and res- pacity and supply, Federal departments and toration of domestic critical infrastructure agencies that are responsible for national de- operations under emergency conditions; and (D) to respond to actions taken outside of fense acquisition should continuously assess the United States that could result in re- the capability of the domestic industrial base duced supplies of strategic and critical ma- to satisfy production requirements under both terials, including energy, necessary for na- peacetime and emergency conditions, specifi- tional defense and the general economic cally evaluating the availability of adequate well-being of the United States; production sources, including subcontractors and suppliers, materials, skilled labor, and (3) in order to provide for the national secu- professional and technical personnel; rity, the national defense preparedness effort (2) every effort should be made to foster co- of the United States Government requires— operation between the defense and commercial (A) preparedness programs to respond to sectors for research and development and for both domestic emergencies and inter- acquisition of materials, components, and national threats to national defense; equipment; (B) measures to improve the domestic in- (3) plans and programs to carry out the pur- dustrial base for national defense; poses of this chapter should be undertaken (C) the development of domestic produc- with due consideration for promoting effi- tive capacity to meet— (i) essential national defense needs that ciency and competition; (4) in providing United States Government can result from emergency conditions; and (ii) unique technological requirements; financial assistance under this chapter to cor- and rect a domestic industrial base shortfall, the President should give consideration to the cre- (D) the diversion of certain materials and ation or maintenance of production sources facilities from ordinary use to national de- that will remain economically viable after fense purposes, when national defense needs such assistance has ended; cannot otherwise be satisfied in a timely (5) authorities under this chapter should be fashion; used to reduce the vulnerability of the United (4) to meet the requirements referred to in States to terrorist attacks, and to minimize this subsection, this chapter provides the the damage and assist in the recovery from President with an array of authorities to terrorist attacks that occur in the United shape national defense preparedness programs States; and to take appropriate steps to maintain and (6) in order to ensure productive capacity in enhance the domestic industrial base; the event of an attack on the United States, (5) in order to ensure national defense pre- the United States Government should encour- paredness, it is necessary and appropriate to age the geographic dispersal of industrial fa- assure the availability of domestic energy sup- cilities in the United States to discourage the plies for national defense needs; concentration of such productive facilities (6) to further assure the adequate mainte- within limited geographic areas that are vul- nance of the domestic industrial base, to the nerable to attack by an enemy of the United maximum extent possible, domestic energy States; supplies should be augmented through reliance (7) to ensure that essential national defense on renewable energy sources (including solar, requirements are met, consideration should be geothermal, wind, and biomass sources), more given to stockpiling strategic materials, to efficient energy storage and distribution tech- the extent that such stockpiling is economical nologies, and energy conservation measures; and feasible; and (7) much of the industrial capacity that is (8) in the construction of any industrial fa- relied upon by the United States Government cility owned by the United States Govern- Page 1077 TITLE 50—WAR AND NATIONAL DEFENSE § 4502 ment, in the rendition of any financial assist- Statutory Notes and Related Subsidiaries ance by the United States Government for the EFFECTIVE DATE OF 1992 AMENDMENT construction, expansion, or improvement of any industrial facility, and in the production Pub. L. 102–558, title III, § 304, Oct. 28, 1992, 106 Stat. of goods and services, under this chapter or 4226, provided that: ‘‘This Act [see Tables for classifica- tion] and the amendments made by this Act shall be any other provision of law, each department deemed to have become effective on March 1, 1992, ex- and agency of the United States Government cept as otherwise specifically provided in this Act.’’ should apply, under the coordination of the Federal Emergency Management Agency, EFFECTIVE DATE OF 1980 AMENDMENT when practicable and consistent with existing Pub. L. 96–294, title I, § 107, June 30, 1980, 94 Stat. 633, law and the desirability for maintaining a provided that: ‘‘The amendments made by this part sound economy, the principle of geographic [part A (§§ 101–107) of title I of Pub. L. 96–294, see Tables dispersal of such facilities in the interest of for classification] shall take effect on the date of the national defense. enactment of this part [June 30, 1980].’’ (Sept. 8, 1950, ch. 932, § 2, 64 Stat. 798; June 30, EFFECTIVE DATE OF 1955 AMENDMENT 1953, ch. 171, § 2, 67 Stat. 129; Aug. 9, 1955, ch. 655, Act Aug. 9, 1955, ch. 655, § 11, 69 Stat. 583, provided

§ 2, 69 Stat. 580; June 29, 1956, ch. 474, § 4, 70 Stat. that: ‘‘The provisions of this Act [see Tables for classi- 408; Pub. L. 96–294, title I, § 102, June 30, 1980, 94 fication] shall take effect as of the close of July 31, Stat. 617; Pub. L. 102–558, title I, § 101, Oct. 28, 1955.’’ 1992, 106 Stat. 4199; Pub. L. 111–67, § 3(a), Sept. 30, DOMESTIC MINERALS PROGRAM EXTENSION 2009, 123 Stat. 2007.) Act Aug. 7, 1953, ch. 339, 67 Stat. 417, provided: ‘‘That this Act may be cited as the ‘Domestic Minerals Pro- Editorial Notes gram Extension Act of 1953’. REFERENCES IN TEXT ‘‘DECLARATION OF POLICY This chapter, referred to in subsecs. (a)(4) and (b), was ‘‘SEC. 2. It is recognized that the continued depend- in the original ‘‘this Act’’, meaning act Sept. 8, 1950, ence on overseas sources of supply for strategic or crit- ch. 932, 64 Stat. 798, known as the Defense Production ical minerals and metals during periods of threatening Act of 1950, which is classified principally to this chap- world conflict or of political instability within those ter. For complete classification of this Act to the Code, nations controlling the sources of supply of such mate- see section 4501 of this title and Tables. rials gravely endangers the present and future economy and security of the United States. It is therefore de- CODIFICATION clared to be the policy of the Congress that each de- partment and agency of the Federal Government Section was formerly classified to section 2062 of the charged with responsibilities concerning the discovery, former Appendix to this title prior to editorial reclassi- development, production, and acquisition of strategic fication and renumbering as this section. or critical minerals and metals shall undertake to de- crease further and to eliminate where possible the de- AMENDMENTS pendency of the United States on overseas sources of 2009—Pub. L. 111–67 amended section generally, sub- supply of each such material. stituting provisions relating to findings and statement ‘‘SEC. 3. In accordance with the declaration of policy of policy with respect to the domestic industrial base set forth in section 2 of this Act, the termination dates for former findings and statement of policy concerning of all purchase programs designed to stimulate the do- development of national security industrial and tech- mestic production of tungsten, manganese, chromite, nology base. mica, asbestos, beryl, and columbium-tantalum-bear- 1992—Pub. L. 102–558 amended section generally, sub- ing ores and concentrates and established by regula- stituting provisions relating to findings and statement tions issued pursuant to the Defense Production Act of of policy, for provisions stating that mobilization ef- 1950, as amended [50 U.S.C. 4501 et seq.], shall be ex- fort continued to require diversion of materials and fa- tended an additional two years: Provided, That this sec- cilities from civilian to military use, and to require de- tion is not intended and shall not be construed to limit velopment of preparedness programs and expansion of or restrict the regulatory agencies from extending the productive capacity and supply, in order to reduce time termination dates of these programs beyond the two- required for full mobilization in case of attack on the year extension periods provided by this section or from United States or to respond to actions occurring out- increasing the quantity of materials that may be deliv- side the United States resulting in termination or re- ered and accepted under these programs as permitted duction of availability of strategic materials, including by existing statutory authority: Provided further, That energy, and provisions stating policy of Congress was the extended termination date provided by this section to encourage geographical dispersal of industrial facili- for the columbium-tantalum purchase program shall ties, and requiring executive branch departments and not apply to the purchase of columbium-tantalum- agencies to apply principle of geographical dispersal in bearing ores and concentrates of foreign origin. construction of such facilities. ‘‘SEC. 4. In order that those persons who produce or 1980—Pub. L. 96–294 inserted provisions relating to who plan to produce under purchase programs estab- preparedness respecting termination or reduction in lished pursuant to Public Law 774 (Eighty-first Con- availability of strategic and critical materials, includ- gress) [50 U.S.C. 4501 et seq.] and Public Law 96 (Eighty- ing energy, and domestic energy supplies for national second Congress) [act July 31, 1951, ch. 275, 65 Stat. 131, defense needs. see Tables for classification] may be in position to plan 1956—Act June 29, 1956, inserted paragraph relating to their investment and production with due regard to re- encouragement of the geographical dispersal of the in- quirements, the responsible agencies controlling such dustrial facilities of the United States. purchase programs are directed to publish at the end of 1955—Act Aug. 9, 1955, provided that mobilization ef- each calendar quarter the amounts of each of the ores fort requires development of preparedness programs and concentrates referred to in section 3 purchased in and expansion of productive capacity and supply in that quarter and the total amounts of each which have order to reduce time required for full mobilization. been purchased under the program.’’ 1953—Act June 30, 1953, amended section generally to [Act Aug. 7, 1953, ch. 339, set out above, was formerly make it conform to the more limited scope of this classified to sections 2181 to 2183 of the former Appen- chapter. dix to this title and to provisions set out as a note

§ 4511 TITLE 50—WAR AND NATIONAL DEFENSE Page 1078 under section 2181 of the former Appendix to this title propriate to assure that such authority is being prior to editorial reclassification as this note.] exercised in a manner which assures the coordi- SUBCHAPTER I—PRIORITIES AND nated administration of such authority with any ALLOCATIONS priorities or allocations established under sub- section (a) of this section and in effect during

§ 4511. Priority in contracts and orders the same period. (a) Allocation of materials, services, and facilities (d) Rules; consultation among agency heads The President is hereby authorized (1) to re- The head of each Federal agency to which the quire that performance under contracts or or- President delegates authority under this section ders (other than contracts of employment) shall— which he deems necessary or appropriate to pro- (1) issue, and annually review and update mote the national defense shall take priority whenever appropriate, final rules, in accord- over performance under any other contract or ance with section 553 of title 5, that establish order, and, for the purpose of assuring such pri- standards and procedures by which the prior- ority, to require acceptance and performance of ities and allocations authority under this sec- such contracts or orders in preference to other tion is used to promote the national defense, contracts or orders by any person he finds to be under both emergency and nonemergency con- capable of their performance, and (2) to allocate ditions; and materials, services, and facilities in such man- (2) as appropriate and to the extent prac- ner, upon such conditions, and to such extent as ticable, consult with the heads of other Fed- he shall deem necessary or appropriate to pro- eral agencies to develop a consistent and uni- mote the national defense. fied Federal priorities and allocations system. (b) Critical and strategic materials (Sept. 8, 1950, ch. 932, title I, § 101, 64 Stat. 799; The powers granted in this section shall not be July 31, 1951, ch. 275, title I, § 101(a), 65 Stat. 131; used to control the general distribution of any June 30, 1952, ch. 530, title I, §§ 101, 102, 66 Stat. material in the civilian market unless the Presi- 296, 297; June 30, 1953, ch. 171, § 3, 67 Stat. 129; dent finds (1) that such material is a scarce and Pub. L. 94–163, title I, § 104(a), Dec. 22, 1975, 89 critical material essential to the national de- Stat. 878; Pub. L. 102–99, § 6, Aug. 17, 1991, 105 fense, and (2) that the requirements of the na- Stat. 490; Pub. L. 111–67, § 4, Sept. 30, 2009, 123 tional defense for such material cannot other- Stat. 2009; Pub. L. 113–172, § 3, Sept. 26, 2014, 128 wise be met without creating a significant dis- Stat. 1897.) location of the normal distribution of such ma- TERMINATION OF SECTION terial in the civilian market to such a degree as to create appreciable hardship. For termination of section, see section 4564(a) (c) Domestic energy; materials, equipment, and of this title. services Editorial Notes (1) Notwithstanding any other provision of this chapter, the President may, by rule or REFERENCES IN TEXT order, require the allocation of, or the priority This chapter, referred to in subsec. (c)(1), was in the performance under contracts or orders (other original ‘‘this Act’’, meaning act Sept. 8, 1950, ch. 932, than contracts of employment) relating to, ma- 64 Stat. 798, known as the Defense Production Act of terials, equipment, and services in order to 1950, which is classified principally to this chapter. For maximize domestic energy supplies if he makes complete classification of this Act to the Code, see sec- tion 4501 of this title and Tables. the findings required by paragraph (3) of this subsection. CODIFICATION (2) The authority granted by this subsection Section was formerly classified to section 2071 of the may not be used to require priority performance former Appendix to this title prior to editorial reclassi- of contracts or orders, or to control the distribu- fication and renumbering as this section. tion of any supplies of materials, services, and facilities in the marketplace, unless the Presi- AMENDMENTS dent finds that— 2014—Subsec. (d)(1). Pub. L. 113–172 substituted (A) such materials, services, and facilities ‘‘issue, and annually review and update whenever ap- are scarce, critical, and essential— propriate, final rules’’ for ‘‘not later than 270 days after (i) to maintain or expand exploration, pro- the date of enactment of the Defense Production Act duction, refining, transportation; Reauthorization of 2009, issue final rules’’. 2009—Subsec. (d). Pub. L. 111–67 added subsec. (d). (ii) to conserve energy supplies; or 1991—Subsec. (a)(2). Pub. L. 102–99, § 6(1), substituted (iii) to construct or maintain energy facili- ‘‘materials, services, and facilities’’ for ‘‘materials and ties; and facilities’’. (B) maintenance or expansion of exploration, Subsec. (c)(1). Pub. L. 102–99, § 6(2), substituted ‘‘ma- terials, equipment, and services’’ for ‘‘supplies of mate- production, refining, transportation, or con- rials and equipment’’. servation of energy supplies or the construc- Subsec. (c)(2) to (4). Pub. L. 102–99, § 6(3), (4), added tion and maintenance of energy facilities can- par. (2), redesignated par. (4) as (3), and struck out not reasonably be accomplished without exer- former pars. (2) and (3) which read as follows: cising the authority specified in paragraph (1) ‘‘(2) The President shall report to the Congress within of this subsection. sixty days after December 22, 1975, on the manner in which the authority contained in paragraph (1) will be (3) During any period when the authority con- administered. This report shall include the manner in ferred by this subsection is being exercised, the which allocations will be made, the procedure for re- President shall take such action as may be ap- quests and appeals, the criteria for determining prior- Page 1079 TITLE 50—WAR AND NATIONAL DEFENSE § 4511 ities as between competing requests, and the office or ‘‘(C) drugs, devices, and biological products that agency which will administer such authorities. are approved, cleared, licensed, or authorized for ‘‘(3) The authority granted in this subsection may use in treating or preventing COVID–19 and symp- not be used to require priority performance of con- toms related to COVID–19, and any materials, man- tracts or orders, or to control the distribution of any ufacturing machinery, additional manufacturing or supplies of materials and equipment in the market- fill-finish lines or facilities, technology, or equip- place, unless the President finds that— ment (including durable medical equipment) nec- ‘‘(A) such supplies are scarce, critical, and essential essary to produce or use such drugs, biological to maintain or further (i) exploration, production, re- products, or devices (including syringes, vials, or fining, transportation, or (ii) the conservation of en- other supplies or equipment related to delivery, dis- ergy supplies, or (iii) for the construction and main- tribution, or administration). tenance of energy facilities; and ‘‘(2) RESPONDING TO PUBLIC HEALTH EMERGENCIES.— ‘‘(B) maintenance or furtherance of exploration, After September 30, 2022, amounts appropriated in production, refining, transportation, or conservation subsection (a) may be used for any activity author- of energy supplies or the construction and mainte- ized by paragraph (1), or any other activity necessary nance of energy facilities cannot reasonably be ac- to meet critical public health needs of the United complished without exercising the authority speci- States, with respect to any pathogen that the Presi- fied in paragraph (1) of this subsection.’’ dent has determined has the potential for creating a 1975—Subsec. (c). Pub. L. 94–163 added subsec. (c). public health emergency.’’ 1953—Subsec. (a). Act June 30, 1953, struck out provi- sions which related to slaughtering of livestock and al- REPORT ON INDUSTRY PREPAREDNESS location of meat and meat products. Pub. L. 110–53, title X, § 1002(b), Aug. 3, 2007, 121 Stat. Subsec. (b). Act June 30, 1953, retained priorities and 375, provided that: ‘‘Not later than 6 months after the allocation authority for defense production but gen- last day of fiscal year 2007 and each subsequent fiscal erally to discontinue such authority with respect to year, the Secretary of Homeland Security, in coopera- the civilian market except in the special cases where, tion with the Secretary of Commerce, the Secretary of because of shortages and demands of the defense effort, Transportation, the Secretary of Defense, and the Sec- there otherwise would be a significant dislocation in retary of Energy, shall submit to the Committee on the civilian market resulting in appreciable hardship. Banking, Housing, and Urban Affairs and the Com- 1952—Act June 30, 1952, redesignated existing provi- mittee on Homeland Security and Governmental Af- sions as subsec. (a), inserted provisions relating to fairs of the Senate and the Committee on Financial meat and meat products, and added subsec. (b). Services and the Committee on Homeland Security of 1951—Act July 31, 1951, inserted provision relating to the House of Representatives a report that details the slaughtering of livestock. actions taken by the Federal Government to ensure, in accordance with subsections (a) and (c) of section 101 of Statutory Notes and Related Subsidiaries the Defense Production Act of 1950 (50 U.S.C. App. 2071) [now 50 U.S.C. 4511], the preparedness of industry to re- EFFECTIVE DATE OF 1991 AMENDMENT duce interruption of critical infrastructure and key re- Pub. L. 102–99, § 7, Aug. 17, 1991, 105 Stat. 490, provided source operations during an act of terrorism, natural that: ‘‘This Act [see Tables for classification] shall catastrophe, or other similar national emergency.’’ take effect on October 20, 1990.’’ PRESIDENTIAL AUTHORITY TO ISSUE ORDERS RELATING COVID–19 EMERGENCY MEDICAL SUPPLIES TO DOMESTIC ENERGY SUPPLIES ENHANCEMENT Pub. L. 94–163, title I, § 104(b), Dec. 22, 1975, 89 Stat. Pub. L. 117–2, title III, § 3101, Mar. 11, 2021, 135 Stat. 53, 879, as amended by Pub. L. 99–58, title I, § 101(b), July 2, provided that: 1985, 99 Stat. 102; Pub. L. 101–46, § 1(2), June 30, 1989, 103 ‘‘(a) SUPPORTING ENHANCED USE OF THE DEFENSE PRO- Stat. 132; Pub. L. 101–262, § 2(a), Mar. 31, 1990, 104 Stat. DUCTION ACT OF 1950.—In addition to funds otherwise 124; Pub. L. 101–360, § 2(a), Aug. 10, 1990, 104 Stat. 421; available, there is appropriated, for fiscal year 2021, out Pub. L. 101–383, § 2(1), Sept. 15, 1990, 104 Stat. 727; Pub. of any money in the Treasury not otherwise appro- L. 105–388, § 6, Nov. 13, 1998, 112 Stat. 3479; Pub. L. priated, $10,000,000,000, to remain available until Sep- 106–469, title I, § 103(2), Nov. 9, 2000, 114 Stat. 2029, pro- tember 30, 2025, to carry out titles I, III , and VII of vided that: ‘‘The expiration of the Defense Production such Act [50 U.S.C. 4511 et seq., 4531 et seq., and 4551 et Act of 1950 [50 U.S.C. 4501 et seq.] or any amendment of seq.] in accordance with subsection (b). such Act after the date of enactment of this Act [Dec. ‘‘(b) MEDICAL SUPPLIES AND EQUIPMENT.— 22, 1975] shall not affect the authority of the President ‘‘(1) TESTING, PPE, VACCINES, AND OTHER MATE- under section 101(c) of such Act [50 U.S.C. 4511(c)], as RIALS.—Except as provided in paragraph (2), amounts amended by subsection (a) of this section and in effect appropriated in subsection (a) shall be used for the on the date of enactment of this Act, unless Congress purchase, production (including the construction, re- by law expressly provides to the contrary.’’ pair, and retrofitting of government-owned or private facilities as necessary), or distribution of medical Executive Documents supplies and equipment (including durable medical DELEGATION OF FUNCTIONS equipment) related to combating the COVID–19 pan- demic, including— Functions of President under this chapter relating to ‘‘(A) in vitro diagnostic products for the detection production, conservation, use, control, distribution, of SARS–CoV–2 or the diagnosis of the virus that and allocation of energy, delegated to Secretary of En- causes COVID–19, and the reagents and other mate- ergy, see section 4 of Ex. Ord. No. 11790, June 25, 1974, rials necessary for producing, conducting, or ad- 39 F.R. 23185, set out as a note under section 761 of Title ministering such products, and the machinery, 15, Commerce and Trade. equipment, laboratory capacity, or other tech- For delegation of certain authority of President nology necessary to produce such products; under this section, see sections 201 to 203 of Ex. Ord. ‘‘(B) face masks and personal protective equip- No. 13603, Mar. 16, 2012, 77 F.R. 16652, 16653, set out as a ment, including face shields, nitrile gloves, N–95 fil- note under section 4553 of this title. tering facepiece respirators, and any other masks EX. ORD. NO. 13909. PRIORITIZING AND ALLOCATING or equipment (including durable medical equip- HEALTH AND MEDICAL RESOURCES TO RESPOND TO THE ment) needed to respond to the COVID–19 pandemic, SPREAD OF COVID–19 and the materials, machinery, additional manufac- turing lines or facilities, or other technology nec- Ex. Ord. No. 13909, Mar. 18, 2020, 85 F.R. 16227, pro- essary to produce such equipment; and vided:

§ 4511 TITLE 50—WAR AND NATIONAL DEFENSE Page 1080 By the authority vested in me as President by the EX. ORD. NO. 13911. DELEGATING ADDITIONAL AUTHORITY Constitution and the laws of the United States of UNDER THE DEFENSE PRODUCTION ACT WITH RESPECT America, including the Defense Production Act of 1950, TO HEALTH AND MEDICAL RESOURCES TO RESPOND TO as amended (50 U.S.C. 4501 et seq.) (the ‘‘Act’’), and sec- THE SPREAD OF COVID–19 tion 301 of title 3, United States Code, it is hereby or- Ex. Ord. No. 13911, Mar. 27, 2020, 85 F.R. 18403, pro- dered as follows:

SECTION 1. Policy and Findings. On March 13, 2020, I de- vided: clared a national emergency recognizing the threat By the authority vested in me as President by the that the novel (new) coronavirus known as Constitution and the laws of the United States of SARS–CoV–2 poses to our national security. In recog- America, including the Defense Production Act of 1950, nizing the public health risk, I noted that on March 11, as amended (50 U.S.C. 4501 et seq.) (the ‘‘Act’’), the Na- 2020, the World Health Organization announced that tional Emergencies Act (50 U.S.C. 1601 et seq.), and sec- the outbreak of COVID–19 (the disease caused by tion 301 of title 3, United States Code, it is hereby or- SARS–CoV–2) can be characterized as a pandemic. I dered as follows: also noted that while the Federal Government, along SECTION 1. Policy. In Proclamation 9994 of March 13, with State and local governments, have taken preven- 2020 (Declaring a National Emergency Concerning the tive and proactive measures to slow the spread of the Novel Coronavirus Disease (COVID–19) Outbreak) [50 virus and to treat those affected, the spread of U.S.C. 1621 note], I declared a national emergency rec- COVID–19 within our Nation’s communities threatens ognizing the threat that the novel (new) coronavirus to strain our Nation’s healthcare system. To ensure known as SARS–CoV–2 poses to our Nation’s healthcare that our healthcare system is able to surge capacity systems. In recognizing the public health risk, I noted and capability to respond to the spread of COVID–19, it that on March 11, 2020, the World Health Organization is critical that all health and medical resources needed announced that the outbreak of COVID–19 (the disease to respond to the spread of COVID–19 are properly dis- caused by SARS–CoV–2) can be characterized as a pan- tributed to the Nation’s healthcare system and others demic. I also noted that while the Federal Government, that need them most at this time. along with State and local governments, have taken Accordingly, I find that health and medical resources preventive and proactive measures to slow the spread needed to respond to the spread of COVID–19, including of the virus and to treat those affected, the spread of personal protective equipment and ventilators, meet COVID–19 within our Nation’s communities threatens the criteria specified in section 101(b) of the Act (50 to strain our Nation’s healthcare systems. U.S.C. 4511(b)). Under the delegation of authority pro- To deal with this threat, on March 18, 2020, I issued vided in this order, the Secretary of Health and Human Executive Order 13909 (Prioritizing and Allocating Services may identify additional specific health and Health and Medical Resources to Respond to the Spread medical resources that meet the criteria of section of COVID–19) [set out above], in which I delegated to 101(b). the Secretary of Health and Human Services the SEC. 2. Priorities and Allocation of Medical Resources. prioritization and allocation authority under section (a) Notwithstanding Executive Order 13603 of March 101 of the Act with respect to health and medical re- 16, 2012 (National Defense Resource Preparedness) [50 sources needed to respond to the spread of COVID–19. U.S.C. 4553 note], the authority of the President con- And on March 23, 2020, I issued Executive Order 13910 ferred by section 101 of the Act to require performance (Preventing Hoarding of Health and Medical Resources of contracts or orders (other than contracts of employ- to Respond to the Spread of COVID–19) [50 U.S.C. 4512 ment) to promote the national defense over perform- note], in which I delegated to the Secretary of Health ance of any other contracts or orders, to allocate mate- and Human Services the authority under section 102 of rials, services, and facilities as deemed necessary or ap- the Act to combat hoarding and price gouging with re- propriate to promote the national defense, and to im- spect to such resources. plement the Act in subchapter III [50 U.S.C. 4551 et To ensure that our healthcare systems are able to seq.] of chapter 55 of title 50, United States Code, is del- surge capacity and capability to respond to the spread egated to the Secretary of Health and Human Services of COVID–19, it is the policy of the United States to ex- with respect to all health and medical resources needed pand domestic production of health and medical re- to respond to the spread of COVID–19 within the United sources needed to respond to the spread of COVID–19, States. including personal protective equipment and ventila- (b) The Secretary of Health and Human Services may tors. Accordingly, I am delegating authority under use the authority under section 101 of the Act to deter- title III of the Act [50 U.S.C. 4531 et seq.] to guarantee mine, in consultation with the Secretary of Commerce loans by private institutions, make loans, make provi- and the heads of other executive departments and agen- sion for purchases and commitments to purchase, and cies as appropriate, the proper nationwide priorities take additional actions to create, maintain, protect, and allocation of all health and medical resources, in- expand, and restore domestic industrial base capabili- cluding controlling the distribution of such materials (including applicable services) in the civilian market, ties to produce such resources. To enable greater co- for responding to the spread of COVID–19 within the operation among private businesses in expanding pro- United States. duction of and distributing such resources, I am also (c) The Secretary of Health and Human Services shall delegating my authority under section 708(c) and (d) of issue such orders and adopt and revise appropriate the Act (50 U.S.C. 4558(c), (d)) to provide for the making rules and regulations as may be necessary to imple- of voluntary agreements and plans of action by the pri- ment this order. vate sector. SEC. 3. General Provisions. (a) Nothing in this order SEC. 2. Delegation of Authority Under Title III of the shall be construed to impair or otherwise affect: Act. (a) Notwithstanding Executive Order 13603 of (i) the authority granted by law to an executive de- March 16, 2012 (National Defense Resources Prepared- partment or agency, or the head thereof; or ness) [50 U.S.C. 4553 note], the Secretary of Health and (ii) the functions of the Director of the Office of Man- Human Services and the Secretary of Homeland Secu- agement and Budget relating to budgetary, administra- rity are each delegated, with respect to responding to tive, or legislative proposals. the spread of COVID–19 within the United States, the (b) This order shall be implemented consistent with authority of the President conferred by sections 301, applicable law and subject to the availability of appro- 302, and 303 of the Act (50 U.S.C. 4531, 4532, and 4533), priations. and the authority to implement the Act in subchapter (c) This order is not intended to, and does not, create III [50 U.S.C. 4551 et seq.] of chapter 55 of title 50, any right or benefit, substantive or procedural, enforce- United States Code (50 U.S.C. 4554, 4555, 4556, and 4560). able at law or in equity by any party against the (b) The Secretary of Health and Human Services and United States, its departments, agencies, or entities, the Secretary of Homeland Security may each use the its officers, employees, or agents, or any other person. authority under sections 301, 302, and 303 of the Act, in DONALD J. TRUMP. consultation with the Secretary of Defense and the Page 1081 TITLE 50—WAR AND NATIONAL DEFENSE § 4511 heads of other executive departments and agencies as (e) The Secretary of Homeland Security shall periodi- he deems appropriate, to respond to the spread of cally consider whether the designations made by him COVID–19. under section 102 of the Act pursuant to section 4(b) of (c) To provide additional authority to respond to the this order remain necessary. Upon finding that such national emergency I declared in Proclamation 9994, designation of material is no longer necessary, the Sec- the requirements of section 301(a)(2), section retary of Homeland Security shall promptly publish a 301(d)(1)(A), and section 303(a)(1) through (a)(6) of the notice of withdrawal of the designation in the Federal Act are waived during the period of that national emer- Register, and in such other manner as he deems appro- gency. priate. (d) To provide additional authority to respond to the SEC. 5. Implementing Rules and Regulations. The Sec- national emergency I declared in Proclamation 9994, retary of Health and Human Services and the Secretary the Secretary of Health and Human Services and the of Homeland Security shall each adopt and revise ap- Secretary of Homeland Security are each authorized to propriate rules and regulations as may be necessary to submit for my approval under section 302(d)(2)(B) of the implement this order. Act a proposed determination that any specific loan is SEC. 6. Policy Coordination. The Assistant to the necessary to avert an industrial resource or critical President for Trade and Manufacturing Policy shall technology shortfall that would severely impair na- serve as National Defense Production Act Policy Coor- tional defense capability. dinator. (e) Before exercising the authority delegated under SEC. 7. General Provisions. (a) Nothing in this order this section with respect to health or medical re- shall be construed to impair or otherwise affect: sources, the Secretary of Homeland Security shall con- (i) the authority granted by law to an executive de- sult with the Secretary of Health and Human Services. partment or agency, or the head thereof; or SEC. 3. Delegation of Authority Under Title VII of the (ii) the functions of the Director of the Office of Man- Act. (a) Notwithstanding Executive Order 13603, the agement and Budget relating to budgetary, administra- Secretary of Health and Human Services and the Sec- tive, or legislative proposals. retary of Homeland Security are each delegated, with (b) This order shall be implemented consistent with respect to responding to the spread of COVID–19 within applicable law and subject to the availability of appro- the United States, the authority of the President con- priations. ferred by section 708(c)(1) and (d) of the Act [50 U.S.C. (c) This order is not intended to, and does not, create 4558(c)(1) and (d)]. The Secretary of Health and Human any right or benefit, substantive or procedural, enforce- Services shall provide to the Secretary of Homeland able at law or in equity by any party against the Security notice of any use of such delegated authority. United States, its departments, agencies, or entities, (b) The delegation made in this section is made upon its officers, employees, or agents, or any other person. the condition that the Secretary of Health and Human Services or the Secretary of Homeland Security con- DONALD J. TRUMP. sult with the Attorney General and with the Federal EX. ORD. NO. 13917. DELEGATING AUTHORITY UNDER THE Trade Commission, and obtain the prior approval of the DEFENSE PRODUCTION ACT WITH RESPECT TO FOOD Attorney General, after consultation by the Attorney SUPPLY CHAIN RESOURCES DURING THE NATIONAL General with the Federal Trade Commission, as re- EMERGENCY CAUSED BY THE OUTBREAK OF COVID–19 quired by section 708(c)(2) of the Act, except when such consultation is waived under subsection (c) of section 3 Ex. Ord. No. 13917, Apr. 28, 2020, 85 F.R. 26313, pro- of this order and section 708(c)(3) of the Act. vided: (c) The Secretary of Health and Human Services and By the authority vested in me as President by the the Secretary of Homeland Security are each author- Constitution and the laws of the United States of ized to submit for my approval under section 708(c)(3) of America, including the Defense Production Act of 1950, the Act any proposed determination that any specific as amended (50 U.S.C. 4501 et seq.) (the ‘‘Act’’), and sec- voluntary agreement or plan of action is necessary to tion 301 of title 3, United States Code, it is hereby or- meet national defense requirements resulting from an dered as follows: event that degrades or destroys critical infrastructure. SECTION 1. Policy. The 2019 novel (new) coronavirus (d) Before exercising the authority delegated under known as SARS–CoV–2, the virus causing outbreaks of this section with respect to health or medical re- the disease COVID–19, has significantly disrupted the sources, the Secretary of Homeland Security shall con- lives of Americans. In Proclamation 9994 of March 13, sult with the Secretary of Health and Human Services. 2020 (Declaring a National Emergency Concerning the SEC. 4. Additional Delegations. (a) Notwithstanding Ex- Novel Coronavirus Disease (COVID–19) Outbreak) [50 ecutive Order 13603, the Secretary of Health and Human U.S.C. 1621 note], I declared that the COVID–19 out- Services and the Secretary of Homeland Security are break in the United States constituted a national each delegated, with respect to responding to the emergency, beginning March 1, 2020. Since then, the spread of COVID–19 within the United States, the au- American people have united behind a policy of mitiga- thority of the President conferred by section 107 of the tion strategies, including social distancing, to flatten Act (50 U.S.C. 4517). the curve of infections and reduce the spread of (b) In addition to the delegations of authority in Ex- COVID–19. The COVID–19 outbreak and these necessary ecutive Order 13909 and Executive Order 13910, the au- mitigation measures have taken a dramatic toll on the thority of the President conferred by sections 101 and United States economy and critical infrastructure. 102 of the Act (50 U.S.C. 4511, 4512) is delegated to the It is important that processors of beef, pork, and Secretary of Homeland Security with respect to health poultry (‘‘meat and poultry’’) in the food supply chain and medical resources needed to respond to the spread continue operating and fulfilling orders to ensure a of COVID–19 within the United States. continued supply of protein for Americans. However, (c) The Secretary of Homeland Security may use the outbreaks of COVID–19 among workers at some proc- authority under section 101 of the Act to determine, in essing facilities have led to the reduction in some of consultation with the heads of other executive depart- those facilities’ production capacity. In addition, re- ments and agencies as appropriate, the proper nation- cent actions in some States have led to the complete wide priorities and allocation of health and medical re- closure of some large processing facilities. Such actions sources, including by controlling the distribution of may differ from or be inconsistent with interim guid- such materials (including applicable services) in the ci- ance recently issued by the Centers for Disease Control vilian market, for responding to the spread of and Prevention (CDC) of the Department of Health and COVID–19 within the United States. Human Services and the Occupational Safety and (d) Before exercising the authority under section 102 Health Administration (OSHA) of the Department of of the Act, the Secretary of Homeland Security shall Labor entitled ‘‘Meat and Poultry Processing Workers consult with the Secretary of Health and Human Serv- and Employers’’ providing for the safe operation of ices. such facilities.

§ 4512 TITLE 50—WAR AND NATIONAL DEFENSE Page 1082 Such closures threaten the continued functioning of America, including section 101 of the Defense Produc- the national meat and poultry supply chain, under- tion Act of 1950, as amended (the ‘‘Act’’) (50 U.S.C. mining critical infrastructure during the national 4511), it is hereby ordered as follows: emergency. Given the high volume of meat and poultry SECTION 1. Policy and Findings. On February 17, 2022, processed by many facilities, any unnecessary closures the largest infant formula manufacturer in the coun- can quickly have a large effect on the food supply try—Abbott Nutrition—initiated a voluntary recall of chain. For example, closure of a single large beef proc- several lines of powdered infant formula made at its essing facility can result in the loss of over 10 million Sturgis, Michigan facility, following concerns about individual servings of beef in a single day. Similarly, bacterial contamination at the facility after four in- under established supply chains, closure of a single fants fell ill. This incident has combined with supply meat or poultry processing facility can severely disrupt chain stress associated with effects of the coronavirus the supply of protein to an entire grocery store chain. 2019 (COVID–19) pandemic to cause an acute disruption Accordingly, I find that meat and poultry in the food in the supply of infant formula in the United States. supply chain meet the criteria specified in section Adequate supply of infant formula is critical to the 101(b) of the Act (50 U.S.C. 4511(b)). Under the delega- health and safety of the millions of children who de- tion of authority provided in this order, the Secretary pend on the formula for essential nutrition. The Fed- of Agriculture shall take all appropriate action under eral Government has worked in the last several months that section to ensure that meat and poultry proc- to address the shortfall in infant formula, but addi- essors continue operations consistent with the guid- tional measures are needed to ensure an adequate sup- ance for their operations jointly issued by the CDC and ply of infant formula in the United States and thereby OSHA. Under the delegation of authority provided in protect the health and well-being of our Nation’s chil- this order, the Secretary of Agriculture may identify dren. additional specific food supply chain resources that This disruption threatens the continued functioning meet the criteria of section 101(b). of the national infant formula supply chain, under- SEC. 2. Ensuring the Continued Supply of Meat and mining critical infrastructure that is essential to the Poultry. (a) Notwithstanding Executive Order 13603 of national defense, including to national public health or March 16, 2012 (National Defense Resources Prepared- safety. As the Abbott Nutrition recall shows, closure of ness) [50 U.S.C. 4553 note], the authority of the Presi- a single formula-producing facility can severely disrupt dent to require performance of contracts or orders the supply of formula nationwide. Accordingly, I here- (other than contracts of employment) to promote the by determine, pursuant to section 101 of the Act, that national defense over performance of any other con- the ingredients necessary to manufacture infant for- tracts or orders, to allocate materials, services, and fa- mula meet the criteria specified in section 101(b) of the cilities as deemed necessary or appropriate to promote Act (50 U.S.C. 4511(b)). the national defense, and to implement the Act in sub- SEC. 2. Ensuring the Continued Supply of Formula. (a) chapter III of chapter 55 of title 50, United States Code Notwithstanding Executive Order 13603 of March 16, (50 U.S.C. 4554, 4555, 4556, 4559, 4560), is delegated to the 2012 (National Defense Resources Preparedness) [50 Secretary of Agriculture with respect to food supply U.S.C. 4553 note], the authority of the President con- chain resources, including meat and poultry, during the ferred by section 101 of the Act to require performance national emergency caused by the outbreak of of contracts or orders (other than contracts of employ- COVID–19 within the United States. ment) to promote the national defense over perform- (b) The Secretary of Agriculture shall use the author- ance of any other contracts or orders, to allocate mate- ity under section 101 of the Act, in consultation with rials, services, and facilities as deemed necessary or ap- the heads of such other executive departments and propriate to promote the national defense, and to im- agencies as he deems appropriate, to determine the plement the Act in subchapter III [50 U.S.C. 4551 et proper nationwide priorities and allocation of all the seq.] of chapter 55 of title 50, United States Code (50 materials, services, and facilities necessary to ensure U.S.C. 4554, 4555, 4556, 4559, 4560), is delegated to the the continued supply of meat and poultry, consistent Secretary of Health and Human Services with respect with the guidance for the operations of meat and poul- to all health resources, including the ingredients nec- try processing facilities jointly issued by the CDC and essary to manufacture infant formula. OSHA. (b) The Secretary of Health and Human Services may (c) The Secretary of Agriculture shall issue such or- use the authority under section 101 of the Act to deter- ders and adopt and revise appropriate rules and regula- mine, in consultation with the Secretary of Agriculture tions as may be necessary to implement this order. and the heads of other executive departments and agen- SEC. 3. General Provisions. (a) Nothing in this order cies as appropriate, the proper nationwide priorities shall be construed to impair or otherwise affect: and allocation of all ingredients necessary to manufac- (i) the authority granted by law to an executive de- ture infant forumla [sic], including controlling the dis- partment or agency, or the head thereof; or tribution of such materials (including applicable serv- (ii) the functions of the Director of the Office of Man- ices) in the civilian market, for responding to the agement and Budget relating to budgetary, administra- shortage of infant formula within the United States. tive, or legislative proposals. You are authorized and directed to publish this deter- (b) This order shall be implemented consistent with mination in the Federal Register. applicable law and subject to the availability of appro- J.R. BIDEN, JR. priations. (c) This order is not intended to, and does not, create § 4512. Hoarding of designated scarce materials any right or benefit, substantive or procedural, enforce- able at law or in equity by any party against the In order to prevent hoarding, no person shall United States, its departments, agencies, or entities, accumulate (1) in excess of the reasonable de- its officers, employees, or agents, or any other person. mands of business, personal, or home consump- DONALD J. TRUMP. tion, or (2) for the purpose of resale at prices in DELEGATING AUTHORITY UNDER THE DEFENSE PRODUC- excess of prevailing market prices, materials TION ACT TO ENSURE AN ADEQUATE SUPPLY OF INFANT which have been designated by the President as FORMULA scarce materials or materials the supply of which would be threatened by such accumula- Determination of President of the United States, No. 2022–13, May 18, 2022, 87 F.R. 31357, provided: tion. The President shall order published in the Memorandum for the Secretary of Health and Human Federal Register, and in such other manner as Services he may deem appropriate, every designation of By the authority vested in me as President by the materials the accumulation of which is unlawful Constitution and the laws of the United States of and any withdrawal of such designation. In mak- Page 1083 TITLE 50—WAR AND NATIONAL DEFENSE § 4512 ing such designations the President may pre- of the virus and to treat those affected, the spread of scribe such conditions with respect to the accu- COVID–19 within our Nation’s communities threatens mulation of materials in excess of the reason- to strain our Nation’s healthcare systems. To further deal with this threat, on March 18, 2020, I issued Execu- able demands of business, personal, or home con- tive Order 13909 (Prioritizing and Allocating Health and sumption as he deems necessary to carry out the Medical Resources to Respond to the Spread of objectives of this chapter. This section shall not COVID–19) [50 U.S.C. 4511 note], in which I delegated to be construed to limit the authority contained in the Secretary of Health and Human Services (Sec- sections 4511 and 4554 of this title. retary) the prioritization and allocation authority under section 101 of the Act [50 U.S.C. 4511] with respect (Sept. 8, 1950, ch. 932, title I, § 102, 64 Stat. 799; to health and medical resources needed to respond to July 31, 1951, ch. 275, title I, § 101(b), 65 Stat. 132.) the spread of COVID–19. TERMINATION OF SECTION To ensure that our Nation’s healthcare systems are able to surge capacity and capability to respond to the For termination of section, see section 4564(a) spread of COVID–19, it is the policy of the United of this title. States that health and medical resources needed to re- spond to the spread of COVID–19, such as personal pro- Editorial Notes tective equipment and sanitizing and disinfecting prod- ucts, are not hoarded. Accordingly, I am delegating to REFERENCES IN TEXT the Secretary my authority under section 102 of the This chapter, referred to in text, was in the original Act (50 U.S.C. 4512) to prevent hoarding of health and ‘‘this Act’’, meaning act Sept. 8, 1950, ch. 932, 64 Stat. medical resources necessary to respond to the spread of 798, known as the Defense Production Act of 1950, which COVID–19 within the United States. I am also dele- is classified principally to this chapter. For complete gating to the Secretary my authority under the Act to classification of this Act to the Code, see section 4501 implement any restrictions on hoarding, including my of this title and Tables. authority under section 705 of the Act (50 U.S.C. 4555) to gather information, such as information about how CODIFICATION supplies of such resources are distributed throughout the Nation. Section was formerly classified to section 2072 of the SEC. 2. Delegation of Authority to Prevent Hoarding. former Appendix to this title prior to editorial reclassi- fication and renumbering as this section. (a) The Secretary is delegated the following: (i) the authority of the President conferred by section AMENDMENTS 102 of the Act to prevent hoarding of health and med- ical resources necessary to respond to the spread of 1951—Act July 31, 1951, authorized President to pre- COVID–19 within the United States, including the au- scribe conditions and exceptions allowing maintenance thority to prescribe conditions with respect to the ac- of substantial inventories of critical materials in cer- cumulation of such resources, and to designate any ma- tain cases. terial as a scarce material, or as a material the supply of which would be threatened by persons accumulating Executive Documents the material either in excess of reasonable demands of DELEGATION OF FUNCTIONS business, personal, or home consumption, or for the purpose of resale at prices in excess of prevailing mar- Authorities of President under this section with re- ket prices; and spect to health and medical resources needed to re- (ii) the authority of the President to implement the spond to the spread of COVID–19 within the United Act contained in subchapter III [50 U.S.C. 4551 et seq.] States delegated to Secretary of Homeland Security, of chapter 55 of title 50, United States Code (50 U.S.C. see section 4 of Ex. Ord. No. 13911, Mar. 27, 2020, 85 F.R. 4554, 4555, 4556, and 4560). 18404, set out as a note under section 4511 of this title. (b) In exercising the authority delegated under this Functions of President under this chapter relating to section, the Secretary shall consult the Administrator production, conservation, use, control, distribution, of the Federal Emergency Management Agency. and allocation of energy, delegated to Secretary of En- (c) The Secretary shall adopt and revise appropriate ergy, see section 4 of Ex. Ord. No. 11790, June 25, 1974, rules and regulations as may be necessary to imple- 39 F.R. 23185, set out as a note under section 761 of Title ment this order. 15, Commerce and Trade. SEC. 3. Secretarial Duty Concerning Notices of With- EX. ORD. NO. 13910. PREVENTING HOARDING OF HEALTH drawal of Designation. The Secretary shall periodically AND MEDICAL RESOURCES TO RESPOND TO THE SPREAD consider whether the designations made pursuant to OF COVID–19 section 2 of this order remain necessary. Upon finding that the need for such designation of material is no Ex. Ord. No. 13910, Mar. 23, 2020, 85 F.R. 17001, pro- longer necessary, the Secretary shall promptly publish vided: a notice of withdrawal of the designation in the Federal By the authority vested in me as President by the Register, and in such other manner as the Secretary Constitution and the laws of the United States of deems appropriate. America, including the Defense Production Act of 1950, SEC. 4. General Provisions. (a) Nothing in this order as amended (50 U.S.C. 4501 et seq.) (the ‘‘Act’’), and sec- shall be construed to impair or otherwise affect: tion 301 of title 3, United States Code, it is hereby or- (i) the authority granted by law to an executive de- dered as follows: partment or agency, or the head thereof; or

SECTION 1. Policy. In Proclamation 9994 of March 13, (ii) the functions of the Director of the Office of Man- 2020 (Declaring a National Emergency Concerning the agement and Budget relating to budgetary, administra- Novel Coronavirus Disease (COVID–19) Outbreak) [50 tive, or legislative proposals. U.S.C. 1621 note], I declared a national emergency rec- ognizing the threat that the novel (new) coronavirus (b) This order shall be implemented consistent with known as SARS–CoV–2 poses to our Nation’s healthcare applicable law and subject to the availability of appro- systems. In recognizing the public health risk, I noted priations. that on March 11, 2020, the World Health Organization (c) This order is not intended to, and does not, create announced that the outbreak of COVID–19 (the disease any right or benefit, substantive or procedural, enforce- caused by SARS–CoV–2) can be characterized as a pan- able at law or in equity by any party against the demic. I also noted that while the Federal Government, United States, its departments, agencies, or entities, along with State and local governments, have taken its officers, employees, or agents, or any other person. preventive and proactive measures to slow the spread DONALD J. TRUMP.

§ 4513 TITLE 50—WAR AND NATIONAL DEFENSE Page 1084

§ 4513. Penalties Date of 1992 Amendment note under section 4502 of this title. Any person who willfully performs any act prohibited, or willfully fails to perform any act Executive Documents required, by the provisions of this subchapter or DELEGATION OF AUTHORITY any rule, regulation, or order thereunder, shall, upon conviction, be fined not more than $10,000 Authority of President under subsec. (b) of this sec- tion delegated to Secretary of Defense, without author- or imprisoned for not more than one year, or ity to redelegate, by section 204 of Ex. Ord. No. 13603, both. Mar. 16, 2012, 77 F.R. 16653, set out as a note under sec- (Sept. 8, 1950, ch. 932, title I, § 103, 64 Stat. 799.) tion 4553 of this title. TERMINATION OF SECTION § 4515. Presidential power to ration gasoline among classes of end-users unaffected For termination of section, see section 4564(a) of this title. Nothing in this chapter shall be construed to authorize the President to institute, without the Editorial Notes approval of the Congress, a program for the ra- tioning of gasoline among classes of end-users. CODIFICATION Section was formerly classified to section 2073 of the (Sept. 8, 1950, ch. 932, title I, § 105, as added Pub. former Appendix to this title prior to editorial reclassi- L. 96–294, title I, § 103, June 30, 1980, 94 Stat. 617.) fication and renumbering as this section. TERMINATION OF SECTION

§ 4514. Limitation on actions without congres- For termination of section, see section 4564(a) sional authorization of this title. (a) Wage or price controls Editorial Notes No provision of this chapter shall be inter- REFERENCES IN TEXT preted as providing for the imposition of wage or This chapter, referred to in text, was in the original price controls without the prior authorization of ‘‘this Act’’, meaning act Sept. 8, 1950, ch. 932, 64 Stat. such action by a joint resolution of Congress. 798, known as the Defense Production Act of 1950, which (b) Chemical or biological weapons is classified principally to this chapter. For complete classification of this Act to the Code, see section 4501 No provision of this subchapter shall be exer- of this title and Tables. cised or interpreted to require action or compli- CODIFICATION ance by any private person to assist in any way in the production of or other involvement in Section was formerly classified to section 2075 of the chemical or biological warfare capabilities, un- former Appendix to this title prior to editorial reclassi- fication and renumbering as this section. less authorized by the President (or the Presi- dent’s designee who is serving in a position at Statutory Notes and Related Subsidiaries level I of the Executive Schedule in accordance with section 5312 of title 5) without further re- EFFECTIVE DATE delegation. Section effective June 30, 1980, see section 107 of Pub. L. 96–294, set out as an Effective Date of 1980 Amend- (Sept. 8, 1950, ch. 932, title I, § 104, as added Pub. ment note under section 4502 of this title. L. 102–558, title I, § 112, Oct. 28, 1992, 106 Stat. 4202.) § 4516. Designation of energy as a strategic and critical material Editorial Notes For purposes of this chapter, ‘‘energy’’ shall be REFERENCES IN TEXT designated as a ‘‘strategic and critical material’’ after June 30, 1980: Provided, That no provision This chapter, referred to in subsec. (a), was in the original ‘‘this Act’’, meaning act Sept. 8, 1950, ch. 932, of this chapter shall, by virtue of such designa- 64 Stat. 798, known as the Defense Production Act of tion 1 grant any new direct or indirect authority 1950, which is classified principally to this chapter. For to the President for the mandatory allocation or complete classification of this Act to the Code, see sec- pricing of any fuel or feedstock (including, but tion 4501 of this title and Tables. not limited to, crude oil, residual fuel oil, any refined petroleum product, natural gas, or coal) CODIFICATION or electricity or any other form of energy. Section was formerly classified to section 2074 of the former Appendix to this title prior to editorial reclassi- (Sept. 8, 1950, ch. 932, title I, § 106, as added Pub. fication and renumbering as this section. L. 96–294, title I, § 103, June 30, 1980, 94 Stat. 617; amended Pub. L. 111–67, § 5, Sept. 30, 2009, 123 PRIOR PROVISIONS Stat. 2009.) A prior section 104 of act Sept. 8, 1950, ch. 932, title I, TERMINATION OF SECTION as added July 31, 1951, ch. 275, title I, § 101(c), 65 Stat. 132; amended June 30, 1952, ch. 530, § 103, 66 Stat. 297, re- For termination of section, see section 4564(a) lated to limitations on imports of fats and oils, prior to of this title. termination at close of June 30, 1953, pursuant to sec- tion 4564(a) of this title. Editorial Notes REFERENCES IN TEXT Statutory Notes and Related Subsidiaries This chapter, referred to in text, was in the original EFFECTIVE DATE ‘‘this Act’’, meaning act Sept. 8, 1950, ch. 932, 64 Stat. Section deemed to have become effective Mar. 1, 1992, see section 304 of Pub. L. 102–558, set out as an Effective 1 So in original. Probably should be followed by a comma. Page 1085 TITLE 50—WAR AND NATIONAL DEFENSE § 4517 798, known as the Defense Production Act of 1950, which TERMINATION OF SECTION is classified principally to this chapter. For complete classification of this Act to the Code, see section 4501 For termination of section, see section 4564(a) of this title and Tables. of this title. CODIFICATION Editorial Notes Section was formerly classified to section 2076 of the former Appendix to this title prior to editorial reclassi- CODIFICATION fication and renumbering as this section. Section was formerly classified to section 2077 of the former Appendix to this title prior to editorial reclassi- AMENDMENTS fication and renumbering as this section. 2009—Pub. L. 111–67 substituted ‘‘such designation’’ In subsec. (b)(2)(B)(ii), ‘‘section 3303(a)(1)(B) of title 41 for ‘‘such designation—’’ and ‘‘energy.’’ for ‘‘energy; or section 3304(a)(3) of title 41’’ substituted for ‘‘section or’’, struck out par. (1) designation before ‘‘grant any 303(b)(1)(B) or section 303(c)(3) of the Federal Property new direct or indirect authority to the President for’’, and Administrative Services Act of 1949’’ on authority and struck out par. (2) which read as follows: ‘‘grant of Pub. L. 111–350, § 6(c), Jan. 4, 2011, 124 Stat. 3854, any new direct or indirect authority to the President which Act enacted Title 41, Public Contracts. to engage in the production of energy in any manner whatsoever (such as oil and gas exploration and devel- AMENDMENTS opment, or any energy facility construction), except as 2021—Subsec. (b)(2)(B)(i), (ii). Pub. L. 117–81, expressly provided in sections 305 and 306 [of act Sept. § 1702(k)(4), which directed the amendment of section 8, 1950, ch. 932] for synthetic fuel production.’’ 107(b)(2)(B) of the Defense Production Act by adding cls. (i) and (ii) and striking out former cls. (i) and (ii), Statutory Notes and Related Subsidiaries was executed by making amendments to this section, EFFECTIVE DATE section 107(b)(2)(B) of the Defense Production Act of 1950, to reflect the probable intent of Congress. Prior to Section effective June 30, 1980, see section 107 of Pub. amendment, cls. (i) and (ii) read as follows: L. 96–294, set out as an Effective Date of 1980 Amend- ‘‘(i) section 2304(b)(1)(B) or section 2304(c)(3) of title ment note under section 4502 of this title. 10; ‘‘(ii) section 3303(a)(1)(B) of title 41 or section

§ 4517. Strengthening domestic capability 3304(a)(3) of title 41; or’’. (a) In general 2009—Subsec. (a). Pub. L. 111–67, § 6(1), inserted ‘‘re- store,’’ after ‘‘modernize,’’ and ‘‘materials,’’ after Utilizing the authority of subchapter II of this ‘‘items,’’. chapter or any other provision of law, the Presi- Subsec. (b). Pub. L. 111–67, § 6(2)(A), (B), redesignated dent may provide appropriate incentives to de- pars. (2) and (3) as (1) and (2), respectively, and struck velop, maintain, modernize, restore, and expand out former par. (1). Prior to amendment, text of par. (1) the productive capacities of domestic sources for read as follows: critical components, critical technology items, ‘‘(A) IN GENERAL.—The President, acting through the Secretary of Defense, shall identify critical compo- materials, and industrial resources essential for nents and critical technology items for each item on the execution of the national security strategy the Critical Items List of the Commanders-in-Chief of of the United States. the Unified and Specified Commands and other items (b) Critical components and critical technology within the inventory of weapon systems and defense items equipment. ‘‘(B) DEFINITION.—Any component identified as crit- (1) Maintenance of reliable sources of supply ical by a National Security Assessment conducted pur- The President shall take appropriate actions suant to section 113(i) of title 10 or by a Presidential to assure that critical components, critical determination as a result of a petition filed under sec- technology items, essential materials, and in- tion 1862 of title 19 shall be designated as a critical component for purposes of this chapter, unless the dustrial resources are available from reliable President determines that the designation is unwar- sources when needed to meet defense require- ranted.’’ ments during peacetime, graduated mobiliza- Subsec. (b)(1). Pub. L. 111–67, § 6(2)(C), substituted tion, and national emergency. ‘‘, critical technology items, essential materials, and (2) Appropriate action industrial resources’’ for ‘‘or critical technology items’’. For purposes of this subsection, appropriate action may include— Statutory Notes and Related Subsidiaries (A) restricting contract solicitations to re- liable sources; EFFECTIVE DATE (B) restricting contract solicitations to do- Section deemed to have become effective Mar. 1, 1992, mestic sources pursuant to— see section 304 of Pub. L. 102–558, set out as an Effective (i) section 3203(a)(1)(B) or 3204(a)(3) of Date of 1992 Amendment note under section 4502 of this title 10; title. (ii) section 3303(a)(1)(B) or 3304(a)(3) of title 41; or Executive Documents (iii) other statutory authority; DELEGATION OF FUNCTIONS (C) stockpiling critical components; and Authorities of President under this section with re- (D) developing substitutes for a critical spect to responding to the spread of COVID–19 within component or a critical technology item. the United States delegated to Secretary of Health and Human Services and the Secretary of Homeland Secu- (Sept. 8, 1950, ch. 932, title I, § 107, as added Pub. rity, see section 4(a) of Ex. Ord. No. 13911, Mar. 27, 2020, L. 102–558, title I, § 111, Oct. 28, 1992, 106 Stat. 85 F.R. 18404, set out as a note under section 4511 of this 4201; amended Pub. L. 111–67, § 6, Sept. 30, 2009, title. 123 Stat. 2009; Pub. L. 117–81, div. A, title XVII, Functions of the President under this chapter relat-

§ 1702(k)(4), Dec. 27, 2021, 135 Stat. 2160.) ing to the production, conservation, use, control, dis-

§ 4518 TITLE 50—WAR AND NATIONAL DEFENSE Page 1086 tribution, and allocation of energy, delegated to the Date of 1992 Amendment note under section 4502 of this Secretary of Energy, see section 4 of Ex. Ord. No. 11790, title. eff. June 25, 1974, 39 F.R. 23185, set out as a note under section 761 of Title 15, Commerce and Trade. Executive Documents For delegation of authority of President under sub- secs. (a) and (b)(1) of this section, see sections 310 and DELEGATION OF FUNCTIONS 311 of Ex. Ord. No. 13603, Mar. 16, 2012, 77 F.R. 16655, set Functions of the President under this chapter relat- out as a note under section 4553 of this title. ing to the production, conservation, use, control, dis- tribution, and allocation of energy, delegated to the

§ 4518. Modernization of small business suppliers Secretary of Energy, see section 4 of Ex. Ord. No. 11790, (a) In general eff. June 25, 1974, 39 F.R. 23185, set out as a note under section 761 of Title 15, Commerce and Trade. In providing any assistance under this chap- ter, the President shall accord a strong pref- SUBCHAPTER II—EXPANSION OF erence for small business concerns which are PRODUCTIVE CAPACITY AND SUPPLY subcontractors or suppliers, and, to the max- imum extent practicable, to such small business Editorial Notes concerns located in areas of high unemployment CODIFICATION or areas that have demonstrated a continuing pattern of economic decline, as identified by the Title III of the Defense Production Act of 1950, com- Secretary of Labor. prising this subchapter, was originally enacted as part of act Sept. 8, 1950, ch. 932, 64 Stat. 798, and amended by (b) Modernization of equipment acts June 2, 1951, ch. 121, 65 Stat. 52; July 31, 1951, ch. (1) In general 275, 65 Stat. 131; June 30, 1952, ch. 530, 66 Stat. 296; June 30, 1953, ch. 171, 67 Stat. 129; Aug. 9, 1955, ch. 655, 69 Stat. Funds authorized under subchapter II may 580; June 29, 1956, ch. 474, 70 Stat. 408; Pub. L. 86–560, be used to guarantee the purchase or lease of June 30, 1960, 74 Stat. 282; Pub. L. 88–343, June 30, 1964, advance manufacturing equipment, and any 78 Stat. 235; Pub. L. 91–379, Aug. 15, 1970, 84 Stat. 796; related services with respect to any such Pub. L. 92–325, June 30, 1972, 86 Stat. 390; Pub. L. 93–155, equipment for purposes of this chapter. Nov. 16, 1973, 87 Stat. 605; Pub. L. 93–426, Sept. 30, 1974, 88 Stat. 1166; Pub. L. 94–273, Apr. 21, 1976, 90 Stat. 375; (2) Small business suppliers Pub. L. 96–41, July 30, 1979, 93 Stat. 319; Pub. L. 96–294, In considering proposals for subchapter II June 30, 1980, 94 Stat. 611; Pub. L. 98–265, Apr. 17, 1984, projects under paragraph (1), the President 98 Stat. 149; Pub. L. 99–441, Oct. 3, 1986, 100 Stat. 1117; shall provide a strong preference for proposals Pub. L. 102–558, Oct. 28, 1992, 106 Stat. 4198; Pub. L. submitted by a small business supplier or sub- 107–47, Oct. 5, 2001, 115 Stat. 260; Pub. L. 107–314, Dec. 2, 2002, 116 Stat. 2458. Title III is shown here, however, as contractor whose proposal— having been added by Pub. L. 111–67, § 7, Sept. 30, 2009, (A) has the support of the department or 123 Stat. 2010, without reference to the intervening agency which will provide the guarantee; amendments because of the extensive revision of the ti- (B) reflects that the small business con- tle’s provisions by Pub. L. 111–67. cern has made arrangements to obtain quali- fied outside assistance to support the effec- § 4531. Presidential authorization for the na- tive utilization of the advanced manufac- tional defense turing equipment being proposed for instal- (a) Expediting production and deliveries or serv- lation; and ices (C) meets the requirements of section 4531, 4532, or 4533 of this title. (1) Authorized activities To reduce current or projected shortfalls of (Sept. 8, 1950, ch. 932, title I, § 108, as added Pub. industrial resources, critical technology L. 102–558, title I, § 111, Oct. 28, 1992, 106 Stat. items, or essential materials needed for na- 4202.) tional defense purposes, subject to such regu- TERMINATION OF SECTION lations as the President may prescribe, the For termination of section, see section 4564(a) President may authorize a guaranteeing agen- of this title. cy to provide guarantees of loans by private institutions for the purpose of financing any Editorial Notes contractor, subcontractor, provider of critical infrastructure, or other person in support of REFERENCES IN TEXT production capabilities or supplies that are This chapter, referred to in subsecs. (a) and (b)(1), was deemed by the guaranteeing agency to be nec- in the original ‘‘this Act’’, meaning act Sept. 8, 1950, essary to create, maintain, expedite, expand, ch. 932, 64 Stat. 798, known as the Defense Production protect, or restore production and deliveries Act of 1950, which is classified principally to this chap- or services essential to the national defense. ter. For complete classification of this Act to the Code, see section 4501 of this title and Tables. (2) Presidential determinations required CODIFICATION Except during a period of national emer- gency declared by Congress or the President, a Section was formerly classified to section 2078 of the loan guarantee may be entered into under this former Appendix to this title prior to editorial reclassi- fication and renumbering as this section. section only if the President determines that— Statutory Notes and Related Subsidiaries (A) the loan guarantee is for an activity that supports the production or supply of an EFFECTIVE DATE industrial resource, critical technology Section deemed to have become effective Mar. 1, 1992, item, or material that is essential for na- see section 304 of Pub. L. 102–558, set out as an Effective tional defense purposes; Page 1087 TITLE 50—WAR AND NATIONAL DEFENSE § 4531 (B) without a loan guarantee, credit is not ability, except as agent in taking any action available to the loan applicant under reason- pursuant to or under authority of this section. able terms or conditions sufficient to fi- (4) Reimbursements nance the activity; (C) the loan guarantee is the most cost ef- Each fiscal agent described in paragraph (1) fective, expedient, and practical alternative shall be reimbursed by each guaranteeing for meeting the needs of the Federal Govern- agency for all expenses and losses incurred by ment; such fiscal agent in acting as agent on behalf (D) the prospective earning power of the of such guaranteeing agency, including, not- loan applicant and the character and value withstanding any other provision of law, at- of the security pledged provide a reasonable torneys’ fees and expenses of litigation. assurance of repayment of the loan to be (c) Oversight guaranteed; (1) In general (E) the loan to be guaranteed bears inter- est at a rate determined by the Secretary of All actions and operations of fiscal agents the Treasury to be reasonable, taking into under authority of or pursuant to this section account the then-current average yield on shall be subject to the supervision of the outstanding obligations of the United States President, and to such regulations as the with remaining periods of maturity com- President may prescribe. parable to the maturity of the loan; (2) Other authority (F) the loan agreement for the loan to be guaranteed provides that no provision of the The President is authorized to prescribe— loan agreement may be amended or waived (A) either specifically or by maximum lim- without the consent of the fiscal agent of its or otherwise, rates of interest, guarantee the United States for the guarantee; and and commitment fees, and other charges (G) the loan applicant has provided or will which may be made in connection with provide— loans, discounts, advances, or commitments (i) an assurance of repayment, as deter- guaranteed by the guaranteeing agencies mined by the President; and through fiscal agents under this section; and (ii) security— (B) regulations governing the forms and (I) in the form of a performance bond, procedures (which shall be uniform to the insurance, collateral, or other means ac- extent practicable) to be utilized in connec- ceptable to the fiscal agent of the United tion with such guarantees. States; and (d) Aggregate guarantee amounts (II) in an amount equal to not less than 20 percent of the amount of the (1) Industrial resource and critical technology loan. shortfalls (3) Limitations on loans (A) In general Loans under this section may be— If the making of any guarantee or obliga- (A) made or guaranteed under the author- tion of the Federal Government under this ity of this section only to the extent that an subchapter relating to a domestic industrial appropriations Act— base shortfall would cause the aggregate (i) provides, in advance, budget author- outstanding amount of all guarantees for ity for the cost of such guarantees, as de- such shortfall to exceed $50,000,000, any such fined in section 661a of title 2; and guarantee may be made only— (ii) establishes a limitation on the total (i) if the President has notified the Com- loan principal that may be guaranteed; mittee on Banking, Housing, and Urban and Affairs of the Senate and the Committee (B) made without regard to the limitations on Financial Services of the House of Rep- of existing law, other than section 1341 of resentatives in writing of the proposed title 31. guarantee; and (b) Fiscal agents of the United States (ii) after the 30-day period following the (1) In general date on which notice under clause (i) is provided. Any Federal agency or any Federal reserve bank, when designated by the President, is (B) Waivers authorized hereby authorized to act, on behalf of any The requirements of subparagraph (A) may guaranteeing agency, as fiscal agent of the be waived— United States in the making of such contracts (i) during a period of national emergency of guarantee and in otherwise carrying out the declared by Congress or the President; or purposes of this section. (ii) upon a determination by the Presi- (2) Funds dent, on a nondelegable basis, that a spe- All such funds as may be necessary to enable cific guarantee is necessary to avert an in- any fiscal agent described in paragraph (1) to dustrial resource or critical technology carry out any guarantee made by it on behalf item shortfall that would severely impair of any guaranteeing agency shall be supplied national defense capability. and disbursed by or under authority from such (2) Other limitations guaranteeing agency. The authority conferred by this section shall (3) Limit on liability not be used primarily to prevent the financial No fiscal agent described in paragraph (1) insolvency or bankruptcy of any person, un- shall have any responsibility or account- less—

§ 4531 TITLE 50—WAR AND NATIONAL DEFENSE Page 1088 (A) the President certifies that the insol- sion, issued on July 1, 2017, to cancel the designation, vency or bankruptcy would have a direct and under Department of Defense Directive 4400.1E, entitled substantially adverse effect upon national ‘Defense Production Act Programs’ and dated October 12, 2001, of the currently assigned Department of De- defense production; and fense Executive Agent for the program carried out (B) a copy of the certification under sub- under title III of the Defense Production Act of 1950 (50 paragraph (A), together with a detailed jus- U.S.C. 4531 et seq.) until the Secretary has— tification thereof, is transmitted to the ‘‘(1) completed the review and assessment required Committee on Banking, Housing, and Urban by subsection (b)(1); and Affairs of the Senate and the Committee on ‘‘(2) carried out the briefing required by subsection Financial Services of the House of Rep- (c). resentatives not later than 10 days prior to ‘‘(b) REVIEW AND ASSESSMENT REQUIRED.— the exercise of that authority for such use. ‘‘(1) IN GENERAL.—The Secretary of Defense, in con- sultation with the Secretary of the Air Force, shall (Sept. 8, 1950, ch. 932, title III, § 301, as added conduct a review and assessment of the program de- Pub. L. 111–67, § 7, Sept. 30, 2009, 123 Stat. 2010.) scribed in subsection (a). TERMINATION OF SECTION ‘‘(2) ELEMENTS.—The review and assessment re- quired by paragraph (1) shall include the following: For termination of section, see section 4564(a) ‘‘(A) Assessment of the current management of this title. structure for the program, including analysis of the mechanisms for accountability, as well as cost and Editorial Notes management controls currently in place. CODIFICATION ‘‘(B) Analysis of alternatives for proposals to modify that management structure to increase ac- Section was formerly classified to section 2091 of the countability, cost and management controls. Such former Appendix to this title prior to editorial reclassi- analysis of alternatives should consider the relative fication and renumbering as this section. merits of centralization and decentralization, roles PRIOR PROVISIONS of other military departments in program manage- ment and contracting, as well as the different roles A prior section 301 of act Sept. 8, 1950, ch. 932, title the Office of the Secretary of Defense might play in III, 64 Stat. 800; June 30, 1953, ch. 171, § 4, 67 Stat. 129; management, oversight and execution. Pub. L. 91–379, title I, § 104, Aug. 15, 1970, 84 Stat. 799; ‘‘(C) Recommendations for improving the assess- Pub. L. 96–294, title I, § 104(a), (b), June 30, 1980, 94 Stat. ment and selection of projects in order to— 618; Pub. L. 98–265, §§ 3(a), 4(a), Apr. 17, 1984, 98 Stat. 149, ‘‘(i) ensure that projects selected are appro- 150; Pub. L. 102–558, title I, §§ 121(a), 141, Oct. 28, 1992, 106 priate for use of funds appropriated to carry out Stat. 4203, 4217; Pub. L. 107–47, § 4(1)–(3), (5), Oct. 5, 2001, title III of the Defense Production Act of 1950; 115 Stat. 260, related to loan guarantees, prior to the ‘‘(ii) ensure that sufficient vetting and manage- general amendment of title III of this Act by Pub. L. ment controls are in place to ensure a reasonable 111–67. degree of confidence that project ideas or the companies being supported will be viable; and Statutory Notes and Related Subsidiaries ‘‘(iii) increase overall successful execution for LEGISLATIVE WAIVER OF LOAN LIMITATIONS selected projects. ‘‘(D) Such other matters as the Secretary con- Pub. L. 116–136, div. B, title III, Mar. 27, 2020, 134 Stat. siders appropriate. 520, provided in part: ‘‘That for the two-year period be- ‘‘(c) BRIEFING REQUIRED.—The Secretary shall brief ginning with the date of enactment of this Act [Mar. 27, the appropriate Committees of Congress on the findings 2020], the requirements described in Section [sic] of the Secretary with respect to the review and assess- 301(a)(3)(A) and 302(c)(1) of Public Law 81–774 [50 U.S.C. ment conducted under subsection (b). 4531(a)(3)(A), 4532(c)(1)], shall be waived’’. ‘‘(d) NOTIFICATION REQUIRED.—In the event the Sec- LIMITATION ON CANCELLATION OF DESIGNATION OF SEC- retary of Defense decides to cancel the designation, RETARY OF THE AIR FORCE AS DEPARTMENT OF DE- under Department of Defense Directive 4400.1E, entitled FENSE EXECUTIVE AGENT ‘Defense Production Act Programs’ and dated October Pub. L. 115–232, div. A, title XVII, § 1792, Aug. 13, 2018, 12, 2001, of the currently assigned Department of De- 132 Stat. 2238, provided that: fense Executive Agent for the program described in ‘‘(a) LIMITATION ON CANCELLATION OF DESIGNATION.— subsection (a), the Secretary shall submit to the appro- The Secretary of Defense may not implement the deci- priate committees of Congress a written notification of sion, issued on July 1, 2017, to cancel the designation, such decision at least 60 days before the decision goes under Department of Defense Directive 4400.01E, enti- into effect. tled ‘Defense Production Act Programs’ and dated Oc- ‘‘(e) DESIGNATION OF OTHER EXECUTIVE AGENTS.—Not- tober 12, 2001, of the Secretary of the Air Force as the withstanding the requirements of this section or sec- Department of Defense Executive Agent for the pro- tion 1792 of the John S. McCain National Defense Au- gram carried out under title III of the Defense Produc- thorization Act for Fiscal Year 2019 [Pub. L. 115–232] (50 tion Act of 1950 (50 U.S.C. 4531 et seq.) until the date U.S.C. 4531 note), the Secretary of Defense may des- specified in subsection (c). ignate one or more Executive Agents within the De- ‘‘(b) DESIGNATION.—The Secretary of the Air Force partment of Defense (other than the Executive Agent shall continue to serve as the sole and exclusive De- described in subsection (a)) to implement Defense Pro- partment of Defense Executive Agent for the program duction Act transactions entered into under the au- described in subsection (a) until the date specified in thority of sections 4021, 4022, and 4023 of title 10, United subsection (c). States Code. ‘‘(c) DATE SPECIFIED.—The date specified in this sub- ‘‘(f) APPROPRIATE COMMITTEES OF CONGRESS DE- section is the date of the enactment of a joint resolu- FINED.—In this section, the term ‘appropriate commit- tion or an Act approving the implementation of the de- tees of Congress’ means the— cision described in subsection (a).’’ ‘‘(1) the [sic] Committee on Armed Services and the Pub. L. 115–91, div. A, title II, § 226, Dec. 12, 2017, 131 Committee on Banking, Housing, and Urban Affairs Stat. 1335, as amended by Pub. L. 117–263, div. A, title of the Senate; and II, § 214, Dec. 23, 2022, 136 Stat. 2471, provided that: ‘‘(2) the [sic] Committee on Armed Services and the ‘‘(a) LIMITATION ON CANCELLATION OF DESIGNATION.— Committee on Financial Services of the House of The Secretary of Defense may not implement the deci- Representatives.’’ Page 1089 TITLE 50—WAR AND NATIONAL DEFENSE § 4532 Executive Documents (E) the loan bears interest at a rate deter- DELEGATION OF FUNCTIONS mined by the Secretary of the Treasury to be reasonable, taking into account the then- Authority of President under this section with re- current average yield on outstanding obliga- spect to responding to the spread of COVID–19 within the United States delegated to Secretary of Health and tions of the United States with remaining Human Services and the Secretary of Homeland Secu- periods of maturity comparable to the matu- rity, see section 2 of Ex. Ord. No. 13911, Mar. 27, 2020, 85 rity of the loan. F.R. 18403, set out as a note under section 4511 of this (c) Limitations on loans title. Functions of President under this chapter relating to Loans under this section may be— production, conservation, use, control, distribution, (1) made or guaranteed under the authority and allocation of energy, delegated to Secretary of En- of this section only to the extent that an ap- ergy, see section 4 of Ex. Ord. No. 11790, eff. June 25, propriations Act— 1974, 39 F.R. 23185, set out as a note under section 761 (A) provides, in advance, budget authority of Title 15, Commerce and Trade. for the cost of such guarantees, as defined in For delegation of authority of President under sub- section 661a of title 2; and sec. (a)(2) of this section, see section 305(a) of Ex. Ord. No. 13603, Mar. 16, 2012, 77 F.R. 16654, set out as a note (B) establishes a limitation on the total under section 4553 of this title. loan principal that may be guaranteed; and EXECUTIVE WAIVER OF LOAN LIMITATIONS (2) made without regard to the limitations of existing law, other than section 1341 of title 31. Requirements of subsecs. (a)(2) and (d)(1)(A) of this section waived during the national emergency declared (d) Aggregate loan amounts by Proc. No. 9994, Mar. 13, 2020, 85 F.R. 15337, set out as (1) In general 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 If the making of any loan under this section as a note under section 4511 of this title. to correct a shortfall would cause the aggre- gate outstanding amount of all obligations of

§ 4532. Loans to private business enterprises the Federal Government under this subchapter (a) Loan authority relating to such shortfall to exceed $50,000,000, such loan may be made only— To reduce current or projected shortfalls of in- (A) if the President has notified the Com- dustrial resources, critical technology items, or mittee on Banking, Housing, and Urban Af- materials essential for the national defense, the fairs of the Senate and the Committee on Fi- President may make provision for loans to pri- nancial Services of the House of Representa- vate business enterprises (including nonprofit tives, in writing, of the proposed loan; and research corporations and providers of critical (B) after the 30-day period following the infrastructure) for the creation, maintenance, date on which notice under subparagraph (A) expansion, protection, or restoration of capac- is provided. ity, the development of technological processes, or the production of essential materials, includ- (2) Waivers authorized ing the exploration, development, and mining of The requirements of paragraph (1) may be strategic and critical metals and minerals. waived— (b) Conditions of loans (A) during a period of national emergency declared by the Congress or the President; Loans may be made under this section on such and terms and conditions as the President deems (B) upon a determination by the President, necessary, except that— on a nondelegable basis, that a specific loan (1) financial assistance may be extended is necessary to avert an industrial resource only to the extent that it is not otherwise or critical technology shortfall that would available from private sources on reasonable severely impair national defense capability. terms; and (2) during periods of national emergency de- (Sept. 8, 1950, ch. 932, title III, § 302, as added clared by the Congress or the President, no Pub. L. 111–67, § 7, Sept. 30, 2009, 123 Stat. 2012.) such loan may be made unless the President TERMINATION OF SECTION determines that— (A) the loan is for an activity that sup- For termination of section, see section 4564(a) ports the production or supply of an indus- of this title. trial resource, critical technology item, or Editorial Notes material that is essential to the national de- fense; CODIFICATION (B) without the loan, United States indus- Section was formerly classified to section 2092 of the try cannot reasonably be expected to provide former Appendix to this title prior to editorial reclassi- the needed capacity, technological proc- fication and renumbering as this section. esses, or materials in a timely manner; PRIOR PROVISIONS (C) the loan is the most cost-effective, ex- pedient, and practical alternative method A prior section 302 of act Sept. 8, 1950, ch. 932, title for meeting the need; III, 64 Stat. 801; June 30, 1952, ch. 530, title I, § 104, 66 (D) the prospective earning power of the Stat. 298; Pub. L. 93–155, title VIII, § 807(b), Nov. 16, 1973, 87 Stat. 615; Pub. L. 96–294, title I, § 104(c), June 30, 1980, loan applicant and the character and value 94 Stat. 618; Pub. L. 98–265, §§ 3(b), 4(b), Apr. 17, 1984, 98 of the security pledged provide a reasonable Stat. 149, 151; Pub. L. 102–558, title I, § 121(b), Oct. 28, assurance of repayment of the loan in ac- 1992, 106 Stat. 4204, related to loans to private business cordance with the terms of the loan, as de- enterprises, prior to the general amendment of title III termined by the President; and of this Act by Pub. L. 111–67.

§ 4533 TITLE 50—WAR AND NATIONAL DEFENSE Page 1090 Statutory Notes and Related Subsidiaries loan support for private institutions. Accordingly, I am delegating authority under title III of the Act [50 INCREASING ACCESS TO MATERIALS NECESSARY FOR U.S.C. 4531 et seq.] to make loans, make provision for NATIONAL SECURITY AND PANDEMIC RECOVERY purchases and commitments to purchase, and take ad- Pub. L. 116–136, div. A, title IV, § 4017, Mar. 27, 2020, ditional actions to create, maintain, protect, expand, 134 Stat. 482, provided that: ‘‘Notwithstanding any and restore the domestic industrial base capabilities, other provision of law— including supply chains within the United States and ‘‘(1) during the 2-year period beginning on the date its territories (‘‘domestic supply chains’’), needed to re- of enactment of this Act [Mar. 27, 2020], the require- spond to the COVID–19 outbreak. ments described in sections 303(a)(6)(C) and 304(e) of SEC. 2. Delegation of Authority Under Title III of the the Defense Production Act of 1950 (50 U.S.C. Act. (a) Notwithstanding Executive Order 13603 of 4533(a)(6)(C), 4534(e)) shall not apply; and March 16, 2012 (National Defense Resources Prepared- ‘‘(2) during the 1-year period beginning on the date ness) [50 U.S.C. 4553 note], and in addition to the dele- of enactment of this Act, the requirements described gation of authority in Executive Order 13911 of March in sections 302(d)(1) and 303(a)(6)(B) of the Defense 27, 2020 (Delegating Additional Authority Under the De- Production Act of 1950 (50 U.S.C. 4532(d)(1), fense Production Act With Respect to Health and Med- 4533(a)(6)(B)) shall not apply.’’ ical Resources to Respond to the Spread of COVID–19) [50 U.S.C. 4511 note], the Chief Executive Officer of the LEGISLATIVE WAIVER OF LOAN LIMITATIONS United States International Development Finance Cor- Requirement described in subsec. (c)(1) of this section poration (DFC) is delegated the authority of the Presi- waived for the two-year period beginning with Mar. 27, dent conferred by sections 302 and 303 of the Act (50 2020, see provision of title III of div. B of Pub. L. U.S.C. 4532 and 4533), and the authority to implement 116–136, set out as a note under section 4531 of this title. the Act in subchapter III of chapter 55 of title 50, United States Code (50 U.S.C. 4554, 4555, 4556, and 4560). Executive Documents (b) The Chief Executive Officer of the DFC may use the authority under sections 302 and 303 of the Act, in DELEGATION OF FUNCTIONS consultation with the Secretary of Defense, the Sec- retary of Health and Human Services, the Secretary of Authority of President under this section with re- Homeland Security, and the heads of other agencies as spect to responding to the spread of COVID–19 within he deems appropriate, for the domestic production of the United States delegated to Secretary of Health and strategic resources needed to respond to the COVID–19 Human Services and the Secretary of Homeland Secu- outbreak, or to strengthen any relevant domestic sup- rity, see section 2 of Ex. Ord. No. 13911, Mar. 27, 2020, 85 ply chains. F.R. 18403, set out as a note under section 4511 of this (c) The loan authority delegated by this order is lim- title. ited to loans that create, maintain, protect, expand, or Functions of President under this chapter relating to restore domestic industrial base capabilities sup- production, conservation, use, control, distribution, porting: and allocation of energy, delegated to Secretary of En- (i) the national response and recovery to the ergy, see section 4 of Ex. Ord. No. 11790, June 25, 1974, COVID–19 outbreak; or 39 F.R. 23185, set out as a note under section 761 of Title (ii) the resiliency of any relevant domestic supply 15, Commerce and Trade. chains. For delegation of certain authority of President (d) Loans extended using the authority delegated by under this section, see sections 302 and 305(a) of Ex. this order shall be made in accordance with the prin- Ord. No. 13603, Mar. 16, 2012, 77 F.R. 16654, set out as a ciples and guidelines outlined in OMB Circular A–11, note under section 4553 of this title. OMB Circular A–129, and the Federal Credit Reform Act EX. ORD. NO. 13922. DELEGATING AUTHORITY UNDER THE of 1990, as amended (2 U.S.C. 661 et seq.). DEFENSE PRODUCTION ACT TO THE CHIEF EXECUTIVE (e) The Chief Executive Officer of the DFC shall adopt OFFICER OF THE UNITED STATES INTERNATIONAL DE- appropriate rules and regulations as may be necessary VELOPMENT FINANCE CORPORATION TO RESPOND TO THE to implement this order. SEC. 3. Termination. The delegation of authority in COVID–19 OUTBREAK this order shall expire upon termination of the 2-year Ex. Ord. No. 13922, May 14, 2020, 85 F.R. 30583, pro- period during which the requirements described in sec- vided: tion 302(c)(1) of the Act (50 U.S.C. 4532(c)(1)) are waived By the authority vested in me as President by the pursuant to title III of division B of the Coronavirus Constitution and the laws of the United States of Aid, Relief, and Economic Security Act (Public Law America, including the Defense Production Act of 1950, 116–136) [see Legislative Waiver of Loan Limitations as amended (50 U.S.C. 4501 et seq.) (the ‘‘Act’’), and sec- note set out under section 4531 of this title]. tion 301 of title 3, United States Code, it is hereby or- SEC. 4. General Provisions. (a) Nothing in this order dered as follows: shall be construed to impair or otherwise affect:

SECTION 1. Policy. In Proclamation 9994 of March 13, (i) the authority granted by law to an executive de- 2020 (Declaring a National Emergency Concerning the partment or agency, or the head thereof; or Novel Coronavirus Disease (COVID–19) Outbreak) [50 (ii) the functions of the Director of the Office of Man- U.S.C. 1621 note], I declared a national emergency rec- agement and Budget relating to budgetary, administra- ognizing the threat that the novel (new) coronavirus tive, or legislative proposals. known as SARS–CoV–2 poses to our Nation’s healthcare (b) This order shall be implemented consistent with systems. In recognizing the public health risk, I noted applicable law and subject to the availability of appro- that on March 11, 2020, the World Health Organization priations. announced that the outbreak of COVID–19 (the disease (c) This order is not intended to, and does not, create caused by SARS–CoV–2) can be characterized as a pan- any right or benefit, substantive or procedural, enforce- demic. able at law or in equity by any party against the To ensure that our country has the capacity, capa- United States, its departments, agencies, or entities, bility, and strong and resilient domestic industrial base its officers, employees, or agents, or any other person. necessary to respond to the COVID–19 outbreak, it is DONALD J. TRUMP. the policy of the United States to further expand do- mestic production of strategic resources needed to re- § 4533. Other presidential action authorized spond to the COVID–19 outbreak, including strength- (a) In general ening relevant supply chains within the United States (1) In general and its territories. It is important to use all resources available to the United States, including executive de- To create, maintain, protect, expand, or re- partments and agencies (agencies) with expertise in store domestic industrial base capabilities es- Page 1091 TITLE 50—WAR AND NATIONAL DEFENSE § 4533 sential for the national defense, the President most cost effective, expedient, and practical may make provision— alternative method for meeting the need. (A) for purchases of or commitments to (6) Notification to Congress of shortfall purchase an industrial resource or a critical technology item, for Government use or re- (A) In general sale; Except as provided in paragraph (7), the (B) for the encouragement of exploration, President shall provide written notice to the development, and mining of critical and Committee on Banking, Housing, and Urban strategic materials, and other materials; Affairs of the Senate and the Committee on (C) for the development of production ca- Financial Services of the House of Rep- pabilities; and resentatives of a domestic industrial base (D) for the increased use of emerging tech- shortfall prior to taking action under this nologies in security program applications subsection to remedy the shortfall. The no- and the rapid transition of emerging tech- tice shall include the determinations made nologies— by the President under paragraph (5). (i) from Government-sponsored research (B) Aggregate amounts and development to commercial applica- tions; and If the taking of any action under this sub- (ii) from commercial research and devel- section to correct a domestic industrial base opment to national defense applications. shortfall would cause the aggregate out- standing amount of all such actions for such (2) Treatment of certain agricultural commod- shortfall to exceed $50,000,000, the action or ities actions may be taken only after the 30-day A purchase for resale under this subsection period following the date on which the Com- shall not include that part of the supply of an mittee on Banking, Housing, and Urban Af- agricultural commodity which is domestically fairs of the Senate and the Committee on Fi- produced, except to the extent that such do- nancial Services of the House of Representa- mestically produced supply may be purchased tives have been notified in writing of the for resale for industrial use or stockpiling. proposed action. (3) Terms of sales (C) Limitation No commodity purchased under this sub- If the taking of any action or actions section shall be sold at less than— under this section to correct an industrial (A) the established ceiling price for such resource shortfall would cause the aggregate commodity, except that minerals, metals, outstanding amount of all such actions for and materials shall not be sold at less than such industrial resource shortfall to exceed the established ceiling price, or the current $50,000,000, no such action or actions may be domestic market price, whichever is lower; taken, unless such action or actions are au- or thorized to exceed such amount by an Act of (B) if no ceiling price has been established, Congress. the higher of— (7) Waivers authorized (i) the current domestic market price for such commodity; or The requirements of paragraphs (1) through (ii) the minimum sale price established (6) may be waived— for agricultural commodities owned or (A) during a period of national emergency controlled by the Commodity Credit Cor- declared by the Congress or the President; or poration, as provided in section 1427 of (B) upon a determination by the President, title 7. on a nondelegable basis, that action is nec- essary to avert an industrial resource or (4) Delivery dates critical technology item shortfall that No purchase or commitment to purchase any would severely impair national defense capa- imported agricultural commodity shall specify bility. a delivery date which is more than 1 year after (b) Exemption for certain limitations the date of termination of this section. Subject to the limitations in subsection (a), (5) Presidential determinations purchases and commitments to purchase and Except as provided in paragraph (7), the sales under subsection (a) may be made without President may not execute a contract under regard to the limitations of existing law (other this subsection unless the President, on a non- than section 1341 of title 31), for such quantities, delegable basis, determines, with appropriate and on such terms and conditions, including ad- explanatory material and in writing, that— vance payments, and for such periods, but not (A) the industrial resource, material, or extending beyond a date that is not more than critical technology item is essential to the 10 years from the date on which such purchase, national defense; purchase commitment, or sale was initially (B) without Presidential action under this made, as the President deems necessary, except section, United States industry cannot rea- that purchases or commitments to purchase in- sonably be expected to provide the capa- volving higher than established ceiling prices bility for the needed industrial resource, ma- (or if no such established ceiling prices exist, terial, or critical technology item in a time- currently prevailing market prices) or antici- ly manner; and pated loss on resale shall not be made, unless it (C) purchases, purchase commitments, or is determined that supply of the materials could other action pursuant to this section are the not be effectively increased at lower prices or on

§ 4533 TITLE 50—WAR AND NATIONAL DEFENSE Page 1092 terms more favorable to the Government, or owned by the Federal Government under this that such purchases are necessary to assure the section shall agree— availability to the United States of overseas (A) to waive any claim against the United supplies. States under section 9607 or 9613 of title 42; (c) Presidential findings and (B) to indemnify the United States against (1) In general any claim described in paragraph (1) made The President may take the actions de- by a third party that arises out of the pres- scribed in paragraph (2), if the President finds ence or use of equipment owned by the Fed- that— eral Government. (A) under generally fair and equitable ceil- (f) Excess metals, minerals, and materials ing prices, for any raw or nonprocessed ma- (1) In general terial, there will result a decrease in sup- plies from high-cost sources of such mate- Notwithstanding any other provision of law rial, and that the continuation of such sup- to the contrary, metals, minerals, and mate- plies is necessary to carry out the objectives rials acquired pursuant to this section which, of this subchapter; or in the judgment of the President, are excess to (B) an increase in cost of transportation is the needs of programs under this chapter, temporary in character and threatens to im- shall be transferred to the National Defense pair maximum production or supply in any Stockpile established by the Strategic and area at stable prices of any materials. Critical Materials Stock Piling Act (50 U.S.C. 98 et seq.), when the President deems such ac- (2) Subsidy payments authorized tion to be in the public interest. Upon a finding under paragraph (1), the (2) Transfers at no charge President may make provision for subsidy Transfers made pursuant to this subsection payments on any such domestically produced shall be made without charge against or reim- material, other than an agricultural com- bursement from funds appropriated for the modity, in such amounts and in such manner purposes of the Strategic and Critical Mate- (including purchases of such material and its rials Stock Piling Act (50 U.S.C. 98 et seq.), ex- resale at a loss), and on such terms and condi- cept that costs incident to such transfer, other tions, as the President determines to be nec- than acquisition costs, shall be paid or reim- essary to ensure that supplies from such high- bursed from such funds. cost sources are continued, or that maximum production or supply in such area at stable (g) Substitutes prices of such materials is maintained, as the When, in the judgement of the President, it case may be. will aid the national defense, the President may (d) Incidental authority make provision for the development of sub- stitutes for strategic and critical materials, The procurement power granted to the Presi- critical components, critical technology items, dent by this section shall include the power to and other industrial resources. transport and store and have processed and re- fined any materials procured under this section. (Sept. 8, 1950, ch. 932, title III, § 303, as added Pub. L. 111–67, § 7, Sept. 30, 2009, 123 Stat. 2013; (e) Installation of equipment in industrial facili- amended Pub. L. 113–172, § 4(a), Sept. 26, 2014, 128 ties Stat. 1897.) (1) Installation authorized TERMINATION OF SECTION If the President determines that such action For termination of section, see section 4564(a) will aid the national defense, the President is of this title. authorized— (A) to procure and install additional equip- Editorial Notes ment, facilities, processes or improvements to plants, factories, and other industrial fa- REFERENCES IN TEXT cilities owned by the Federal Government; This chapter, referred to in subsec. (f)(1), was in the (B) to procure and install equipment original ‘‘this Act’’, meaning act Sept. 8, 1950, ch. 932, owned by the Federal Government in plants, 64 Stat. 798, known as the Defense Production Act of factories, and other industrial facilities 1950, which is classified principally to this chapter. For complete classification of this Act to the Code, see sec- owned by private persons; tion 4501 of this title and Tables. (C) to provide for the modification or ex- The Strategic and Critical Materials Stock Piling pansion of privately owned facilities, includ- Act, referred to in subsec. (f), is act June 7, 1939, ch. 190, ing the modification or improvement of pro- as revised generally by Pub. L. 96–41, § 2, July 30, 1979, duction processes, when taking actions 93 Stat. 319, which is classified generally to subchapter under section 4531 of this title, 4532 of this III (§ 98 et seq.) of chapter 5 of this title. For complete title, or this section; and classification of this Act to the Code, see section 98 of this title and Tables. (D) to sell or otherwise transfer equipment owned by the Federal Government and in- CODIFICATION stalled under this subsection to the owners Section was formerly classified to section 2093 of the of such plants, factories, or other industrial former Appendix to this title prior to editorial reclassi- facilities. fication and renumbering as this section. (2) Indemnification PRIOR PROVISIONS The owner of any plant, factory, or other in- A prior section 303 of act Sept. 8, 1950, ch. 932, title dustrial facility that receives equipment III, 64 Stat. 801; July 31, 1951, ch. 275, title I, § 103(a), 65 Page 1093 TITLE 50—WAR AND NATIONAL DEFENSE § 4534 Stat. 133; June 30, 1953, ch. 171, §§ 5, 6, 67 Stat. 130; Aug. ‘‘(2) the projected requirements of the Department 9, 1955, ch. 655, § 3, 69 Stat. 580; June 29, 1956, ch. 474, § 2, of Defense for radiation-hardened electronics; 70 Stat. 408; Pub. L. 88–343, § 2, June 30, 1964, 78 Stat. 235; ‘‘(3) the intentions of the Department of Defense for Pub. L. 92–325, § 1, June 30, 1972, 86 Stat. 390; Pub. L. the industrial base for radiation-hardened elec- 94–273, § 2(29), Apr. 21, 1976, 90 Stat. 376; Pub. L. 96–41, tronics; and

§ 3(c), July 30, 1979, 93 Stat. 325; Pub. L. 96–294, title I, ‘‘(4) the plans of the Department of Defense for use

§ 104(d), June 30, 1980, 94 Stat. 618; Pub. L. 98–265, §§ 3(c), of providers of radiation-hardened electronics beyond 4(c), Apr. 17, 1984, 98 Stat. 150, 151; Pub. L. 102–558, title the providers with which the Department had entered I, § 121(c), (d), Oct. 28, 1992, 106 Stat. 4204, 4206; Pub. L. into contractual arrangements under the authority of 107–47, § 4(3), Oct. 5, 2001, 115 Stat. 260, related to pur- the Defense Production Act of 1950 [50 U.S.C. 4501 et chase of raw materials and installation of equipment, seq.], as of the date of the enactment of this Act.’’ prior to the general amendment of title III of this Act Pub. L. 107–314, div. A, title VIII, § 829, Dec. 2, 2002, 116 by Pub. L. 111–67. Stat. 2618, provided that: ‘‘Notwithstanding the limita- tion in [former] section 303(a)(6)(C) of the Defense Pro- AMENDMENTS duction Act of 1950 ([former] 50 U.S.C. App. 2093(a)(6)(C)), action or actions may be taken under sec- 2014—Subsec. (a)(5). Pub. L. 113–172, § 4(a)(1)(A), sub- tion 303 of that Act to correct the industrial resource stituted ‘‘, on a non-delegable basis, determines, with shortfall for radiation-hardened electronics, if such ac- appropriate explanatory material and in writing,’’ for tions do not cause the aggregate outstanding amount ‘‘determines’’ in introductory provisions. of all such actions to exceed $106,000,000.’’ 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- Executive Documents par. (C). DELEGATION OF FUNCTIONS Authority of President under this section delegated Statutory Notes and Related Subsidiaries to Chief Executive Officer of the United States Inter- EFFECTIVE DATE OF 2014 AMENDMENT national Development Finance Corporation, see section 2 of Ex. Ord. No. 13922, May 14, 2020, 85 F.R. 30583, set Pub. L. 113–172, § 4(b), Sept. 26, 2014, 128 Stat. 1897, pro- out as a note under section 4532 of this title. vided that: ‘‘Section 303(a)(6)(C) of the Defense Produc- Authority of President under this section with re- tion Act of 1950 [50 U.S.C. 4533(a)(6)(C)], as added by spect to responding to the spread of COVID–19 within subsection (a)(2), shall not apply to a project under- the United States delegated to Secretary of Health and taken pursuant to a determination made before the Human Services and the Secretary of Homeland Secu- date of the enactment of this Act [Sept. 26, 2014].’’ rity, see section 2 of Ex. Ord. No. 13911, Mar. 27, 2020, 85 INCREASING ACCESS TO MATERIALS NECESSARY FOR F.R. 18403, set out as a note under section 4511 of this NATIONAL SECURITY AND PANDEMIC RECOVERY title. Functions of President under this chapter relating to Requirement described in subsec. (a)(6)(B) of this sec- production, conservation, use, control, distribution, tion not applicable during the 1-year period beginning and allocation of energy, delegated to Secretary of En- on Mar. 27, 2020, and requirement described in subsec. ergy, see section 4 of Ex. Ord. No. 11790, June 25, 1974, (a)(6)(C) of this section not applicable during the 2-year 39 F.R. 23185, set out as a note under section 761 of Title period beginning on Mar. 27, 2020, see section 4017 of 15, Commerce and Trade. Pub. L. 116–136, set out as a note under section 4532 of For delegation of certain authority of President this title. 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, AUTHORIZATION TO TAKE ACTIONS TO CORRECT THE IN- 16655, set out as a note under section 4553 of this title. DUSTRIAL RESOURCE SHORTFALL FOR HIGH-PURITY BERYLLIUM METAL EXECUTIVE WAIVER OF LIMITATIONS Pub. L. 111–84, div. A, title VIII, § 842, Oct. 28, 2009, 123 Requirements of subsec. (a)(1) to (6) of this section Stat. 2418, provided that: ‘‘Notwithstanding any limita- waived during the national emergency declared by tion in section 303 of the Defense Production Act of 1950 Proc. No. 9994, Mar. 13, 2020, 85 F.R. 15337, set out as a (50 U.S.C. App. 2093) [now 50 U.S.C. 4533], an action may note under section 1621 of this title, see section 2(c) of be taken under such section to correct an industrial re- Ex. Ord. No. 13911, Mar. 27, 2020, 85 F.R. 18404, set out source shortfall or domestic industrial base shortfall as a note under section 4511 of this title. for high-purity beryllium metal if such action does not cause the aggregate outstanding amount of all such ac- § 4534. Defense Production Act Fund tions for such shortfall to exceed ‘$85,000,000’.’’ (a) Establishment of Fund RESOURCE SHORTFALL FOR RADIATION-HARDENED There is established in the Treasury of the ELECTRONICS United States a separate fund to be known as Pub. L. 108–195, § 3, Dec. 19, 2003, 117 Stat. 2892, pro- the ‘‘Defense Production Act Fund’’ (in this sec- vided that: tion referred to as the ‘‘Fund’’). ‘‘(a) IN GENERAL.—Notwithstanding the limitation (b) Moneys in Fund contained in [former] section 303(a)(6)(C) of the Defense Production Act of 1950 ([former] 50 U.S.C. App. There shall be credited to the Fund— 2093(a)(6)(C)), the President may take actions under (1) all moneys appropriated for the Fund, as section 303 of the Defense Production Act of 1950 to cor- authorized by section 4561 of this title; and rect the industrial resource shortfall for radiation- (2) all moneys received by the Fund on hardened electronics, to the extent that such Presi- transactions entered into pursuant to section dential actions do not cause the aggregate outstanding 4533 of this title. amount of all such actions to exceed $200,000,000. (c) Use of Fund ‘‘(b) REPORT BY THE SECRETARY.—Before the end of the 6-month period beginning on the date of the enact- The Fund shall be available to carry out the ment of this Act [Dec. 19, 2003], the Secretary of De- provisions and purposes of this subchapter, sub- fense shall submit a report to the Committee on Bank- ject to the limitations set forth in this chapter ing, Housing, and Urban Affairs of the Senate and the and in appropriations Acts. Committee on Financial Services of the House of Rep- (d) Duration of Fund resentatives describing— ‘‘(1) the current state of the domestic industrial Moneys in the Fund shall remain available base for radiation-hardened electronics; until expended.

§ 4535 TITLE 50—WAR AND NATIONAL DEFENSE Page 1094 (e) Fund balance section, see section 309 of Ex. Ord. No. 13603, Mar. 16, 2012, 77 F.R. 16655, set out as a note under section 4553 The Fund balance at the close of each fiscal of this title. year shall not exceed $750,000,000, excluding any moneys appropriated to the Fund during that Executive Documents fiscal year or obligated funds. If, at the close of any fiscal year, the Fund balance exceeds EXECUTIVE ORDER NO. 12346 $750,000,000, the amount in excess of $750,000,000 Ex. Ord. No. 12346, Feb. 8, 1982, 47 F.R. 5993, related to shall be paid into the general fund of the Treas- the transition of synthetic fuel responsibilities from ury. the Department of Energy to the United States Syn- thetic Fuels Corporation, revoked Ex. Ord. No. 12242, (f) Fund manager and provided that the provisions of Ex. Ord. No. 12242 The President shall designate a Fund man- would continue in full force and effect with respect to ager. The duties of the Fund manager shall in- any loan guarantee issued under its provisions. clude—

§ 4535. Reports on exercise of authorities (1) determining the liability of the Fund in accordance with subsection (g); (a) In general (2) ensuring the visibility and accountability The President, or the head of an agency to of transactions engaged in through the Fund; which the President has delegated authorities and under this subchapter, shall submit a report and (3) reporting to the Congress each year re- provide a briefing to the appropriate congres- garding activities of the Fund during the pre- sional committees with respect to any action vious fiscal year. taken pursuant to such authorities— (g) Liabilities against Fund (1) except as provided by paragraph (2), not When any agreement entered into pursuant to later than 30 days after taking the action; and this subchapter after December 31, 1991, imposes (2) in the case of an action that involves a any contingent liability upon the United States, business concern in the United Kingdom or such liability shall be considered an obligation Australia, not later than 30 days before taking against the Fund. the action. (Sept. 8, 1950, ch. 932, title III, § 304, as added (b) Elements Pub. L. 111–67, § 7, Sept. 30, 2009, 123 Stat. 2017.) (1) In general TERMINATION OF SECTION Each report and briefing required by sub- section (a) with respect to an action described For termination of section, see section 4564(a) in that subsection shall include— of this title. (A) a justification of the necessity of the Editorial Notes use of authorities under this subchapter; and (B) a description of the financial terms of REFERENCES IN TEXT any related financial transaction. This chapter, referred to in subsec. (c), was in the (2) Additional elements relating to business original ‘‘this Act’’, meaning act Sept. 8, 1950, ch. 932, concerns in the United Kingdom or Aus- 64 Stat. 798, known as the Defense Production Act of tralia 1950, which is classified principally to this chapter. For complete classification of this Act to the Code, see sec- Each report and briefing required by sub- tion 4501 of this title and Tables. section (a) with respect to an action described CODIFICATION in paragraph (2) of that subsection shall in- clude, in addition to the elements under para- Section was formerly classified to section 2094 of the graph (1)— former Appendix to this title prior to editorial reclassi- (A) a certification that business concerns fication and renumbering as this section. in the United States or Canada were not PRIOR PROVISIONS available with respect to the action; and A prior section 304, act Sept. 8, 1950, ch. 932, title III, (B) an analysis of why such business con- 64 Stat. 802; June 2, 1951, ch. 121, Ch. XI, 65 Stat. 61; cerns were not available. July 31, 1951, ch. 275, title I, § 103(b), (c), 65 Stat. 134; (c) Appropriate congressional committees de- Pub. L. 86–560, § 2, June 30, 1960, 74 Stat. 282; Pub. L. fined 88–343, § 3, June 30, 1964, 78 Stat. 235; Pub. L. 93–426, § 2, Sept. 30, 1974, 88 Stat. 1166; Pub. L. 102–558, title I, § 122, In this section, the term ‘‘appropriate congres- Oct. 28, 1992, 106 Stat. 4206; Pub. L. 107–47, § 4(4), Oct. 5, sional committees’’ means— 2001, 115 Stat. 260, related to Defense Production Act (1) the Committee on Banking, Housing, and Fund, was omitted in the general amendment of title Urban Affairs of the Senate and the Com- III of the Act by Pub. L. 111–67. mittee on Financial Services of the House of Representatives; and Statutory Notes and Related Subsidiaries (2) in the case of an action described in sub- INCREASING ACCESS TO MATERIALS NECESSARY FOR section (a) involving materials critical to na- NATIONAL SECURITY AND PANDEMIC RECOVERY tional security (as defined in section Requirement described in subsec. (e) of this section 4552(7)(B)(ii)(II)(bb) of this title), the Com- not applicable during the 2-year period beginning on mittee on Energy and Natural Resources of Mar. 27, 2020, see section 4017(1) of Pub. L. 116–136, set the Senate and the Committee on Natural Re- out in a note under section 4532 of this title. sources of the House of Representatives. DEFENSE PRODUCTION ACT FUND MANAGER (Sept. 8, 1950, ch. 932, title III, § 305, as added Secretary of Defense designated Defense Production Pub. L. 118–31, div. A, title X, § 1080(b), Dec. 22, Act Fund Manager in accordance with subsec. (f) of this 2023, 137 Stat. 416.) Page 1095 TITLE 50—WAR AND NATIONAL DEFENSE § 4551 Editorial Notes (e) Allocations under section 4511 PRIOR PROVISIONS Whenever the President makes a determina- tion to exercise any authority to allocate any Prior sections 305 to 310 of act Sept. 8, 1950, ch. 932, were omitted in the general amendment of title III of material pursuant to section 4511 of this title, the Act by Pub. L. 111–67. small business concerns shall be accorded, to the

Section 305, act Sept. 8, 1950, ch. 932, title III, as extent practicable, a fair share of such material, added Pub. L. 96–294, title I, § 104(e), June 30, 1980, 94 in proportion to the share received by such busi- Stat. 619; amended Pub. L. 107–314, div. A, title X, ness concerns under normal conditions, giving

§ 1062(o)(3), Dec. 2, 2002, 116 Stat. 2653, related to syn- such special consideration as may be possible to thetic fuel production. emerging small business concerns.

Section 306, act Sept. 8, 1950, ch. 932, title III, as added Pub. L. 96–294, title I, § 104(e), June 30, 1980, 94 (Sept. 8, 1950, ch. 932, title VII, § 701, 64 Stat. 815; Stat. 623; amended Pub. L. 107–314, div. A, title X, July 31, 1951, ch. 275, title I, § 108, 65 Stat. 138;

§ 1062(o)(3), Dec. 2, 2002, 116 Stat. 2653, related to syn- June 30, 1953, ch. 171, § 7, 67 Stat. 130; Aug. 9, 1955, thetic fuel production subsequent to determinations re- ch. 655, §§ 4, 5, 69 Stat. 580; Pub. L. 96–294, title I, specting a national energy supply shortage of defense § 105(c), June 30, 1980, 94 Stat. 633; Pub. L. 102–558, fuels.

Section 307, act Sept. 8, 1950, ch. 932, title III, as title I, § 131, Oct. 28, 1992, 106 Stat. 4209.) added Pub. L. 96–294, title I, § 104(e), June 30, 1980, 94 TERMINATION OF SECTION Stat. 628; amended Pub. L. 102–558, title I, § 151, Oct. 28, For termination of section, see section 4564(a) 1992, 106 Stat. 4218, related to synthetic fuel action.

Section 308, act Sept. 8, 1950, ch. 932, title III, as of this title. added Pub. L. 96–294, title I, § 104(e), June 30, 1980, 94 Stat. 631, related to definitions of ‘‘Government syn- Editorial Notes thetic fuel project’’, ‘‘synthetic fuel’’, ‘‘synthetic fuel REFERENCES IN TEXT project’’, and ‘‘United States’’.

Section 309, act Sept. 8, 1950, ch. 932, title III, as This chapter, referred to in text, was in the original added Pub. L. 98–265, § 6, Apr. 17, 1984, 98 Stat. 152; ‘‘this Act’’, meaning act Sept. 8, 1950, ch. 932, 64 Stat. amended Pub. L. 99–441, § 4, Oct. 3, 1986, 100 Stat. 1117; 798, known as the Defense Production Act of 1950, which Pub. L. 102–558, title I, § 124, Oct. 28, 1992, 106 Stat. 4207; is classified principally to this chapter. For complete Pub. L. 107–47, § 4(5), Oct. 5, 2001, 115 Stat. 260, related classification of this Act to the Code, see section 4501 to annual report on impact of offsets. See section 4568 of this title and Tables. of this title. CODIFICATION

Section 310, act Sept. 8, 1950, ch. 932, title III, as added Pub. L. 102–558, title I, § 125, Oct. 28, 1992, 106 Stat. Section was formerly classified to section 2151 of the 4208, related to civil-military integration. former Appendix to this title prior to editorial reclassi- fication and renumbering as this section. SUBCHAPTER III—GENERAL PROVISIONS AMENDMENTS 1992—Pub. L. 102–558 amended section generally, sub- Editorial Notes stituting present provisions for provisions stating pol- CODIFICATION icy to encourage small business enterprises and pro- viding for measures to carry out this policy, for alloca- Subchapter is comprised of the portions of title VII of tion of materials in the civilian market, and for dis- act Sept. 8, 1950, ch. 932, as amended, that had not pre- tribution of defense contracts. viously been repealed when title VII was editorially re- 1980—Subsec. (d). Pub. L. 96–294 substituted ‘‘June 30, classified as this subchapter. 1980’’ for ‘‘August 9, 1955’’. 1955—Subsec. (c). Act Aug. 9, 1955, § 4, struck out spe-

§ 4551. Small business cific dates which were the basis for determination of (a) Participation materials in civilian market and inserted provisions re- quiring that a business receive its fair share based on Small business concerns shall be given the a representative period before imposition of the alloca- maximum practicable opportunity to partici- tion. pate as contractors, and subcontractors at var- Subsec. (d). Act Aug. 9, 1955, § 5, added subsec. (d). 1953—Subsec. (c). Act June 30, 1953, amended subsec. ious tiers, in all programs to maintain and (c) generally, the principal change being to provide, in strengthen the Nation’s industrial base and the allocation to business of a fair share of available ci- technology base undertaken pursuant to this vilian supply, a new base period for allocating mate- chapter. rials not under control on July 1, 1953. (b) Administration of chapter 1951—Subsec. (c). Act July 31, 1951, provided that lim- itations and restrictions on production of specific In administering the programs, implementing items shall not exclude new concerns. regulations, policies, and procedures under this chapter, requests, applications, or appeals from Statutory Notes and Related Subsidiaries small business concerns shall, to the maximum EFFECTIVE DATE OF 1992 AMENDMENT extent practicable, be expeditiously handled. Amendment by Pub. L. 102–558 deemed to have be- (c) Advisory committee participation come effective Mar. 1, 1992, see section 304 of Pub. L. Representatives of small business concerns 102–558, set out as a note under section 4502 of this title. shall be afforded the maximum opportunity to EFFECTIVE DATE OF 1980 AMENDMENT participate in such advisory committees as may Amendment by Pub. L. 96–294 effective June 30, 1980, be established pursuant to this chapter. see section 107 of Pub. L. 96–294, set out as a note under (d) Information section 4502 of this title. Information about this chapter and activities EFFECTIVE DATE OF 1955 AMENDMENT undertaken in accordance with this chapter Amendment by act Aug. 9, 1955, effective as of close shall be made available to small business con- of July 31, 1955, see section 11 of act Aug. 9, 1955, set out cerns. as a note under section 4502 of this title.

§ 4552 TITLE 50—WAR AND NATIONAL DEFENSE Page 1096 Executive Documents (B) to perform services for the national de- DELEGATION OF FUNCTIONS fense. Authority of President to implement this chapter (6) Domestic industrial base under this subchapter with respect to responding to the The term ‘‘domestic industrial base’’ means spread of COVID–19 within the United States delegated domestic sources which are providing, or to Secretary of Health and Human Services and the Secretary of Homeland Security, see section 2(a) of Ex. which would be reasonably expected to pro- Ord. No. 13911, Mar. 27, 2020, 85 F.R. 18403, set out as a vide, materials or services to meet national note under section 4511 of this title. defense requirements during peacetime, na- Authority of President to implement this chapter tional emergency, or war. under this subchapter with respect to hoarding of health and medical resources necessary to respond to (7) Domestic source the spread of COVID–19 within the United States dele- (A) In general gated to Secretary of Health and Human Services, see section 2(a)(ii) of Ex. Ord. 13910, Mar. 23, 2020, 85 F.R. Except as provided in subparagraph (B), 17001, set out as a note under section 4512 of this title. the term ‘‘domestic source’’ means a busi- Functions of President under this chapter relating to ness concern— production, conservation, use, control, distribution, (i) that performs in the United States or and allocation of energy, delegated to Secretary of En- Canada substantially all of the research ergy, see section 4 of Ex. Ord. No. 11790, June 25, 1974, and development, engineering, manufac- 39 F.R. 23185, set out as a note under section 761 of Title turing, and production activities required 15, Commerce and Trade. For delegation of certain authority of President of such business concern under a contract under this subchapter, see section 802 of Ex. Ord. No. with the United States relating to a crit- 13603, Mar. 16, 2012, 77 F.R. 16659, set out as a note under ical component or a critical technology section 4553 of this title. item; and (ii) that procures from business concerns

§ 4552. Definitions described in clause (i) substantially all of For purposes of this chapter, the following any components and assemblies required definitions shall apply: under a contract with the United States (1) Critical component relating to a critical component or critical technology item. The term ‘‘critical component’’ includes such components, subsystems, systems, and (B) Domestic source for subchapter II related special tooling and test equipment es- (i) In general sential to the production, repair, mainte- For purposes of subchapter II, the term nance, or operation of weapon systems or ‘‘domestic source’’ means a business con- other items of equipment identified by the cern that— President as being essential to the execution (I) performs substantially all of the re- of the national security strategy of the United search and development, engineering, States. Components identified as critical by a manufacturing, and production activi- National Security Assessment conducted pur- ties required of such business concern suant to section 113(i) of title 10 or by a Presi- under a contract with the United States dential determination as a result of a petition relating to a critical component or a filed under section 1862 of title 19 shall be des- critical technology item in— ignated as critical components for purposes of (aa) the United States or Canada; or this chapter, unless the President determines (bb) subject to clause (ii), Australia that the designation is unwarranted. or the United Kingdom; and (2) Critical infrastructure (II) procures from business concerns The term ‘‘critical infrastructure’’ means described in subclause (I) substantially any systems and assets, whether physical or all of any components or assemblies re- cyber-based, so vital to the United States that quired under a contract with the United the degradation or destruction of such systems States relating to a critical component and assets would have a debilitating impact on or critical technology item. national security, including, but not limited to, national economic security and national (ii) Limitations on use of business concerns public health or safety. in Australia and United Kingdom (3) Critical technology (I) In general The term ‘‘critical technology’’ includes any A business concern described in clause technology designated by the President to be (i)(I)(bb) may be treated as a domestic essential to the national defense. source only for purposes of the exercise (4) Critical technology item of authorities under subchapter II relat- The term ‘‘critical technology item’’ means ing to national defense matters that can- materials directly employing, derived from, or not be fully addressed with business con- utilizing a critical technology. cerns described in clause (i)(I)(aa). (5) Defense contractor (II) National defense matter defined The term ‘‘defense contractor’’ means any For purposes of subclause (I), the term person who enters into a contract with the ‘‘national defense matter’’ is a matter United States— relating to the development or produc- (A) to furnish materials, industrial re- tion of— sources, or a critical technology for the na- (aa) a defense article, as defined in tional defense; or section 301 of title 10; or Page 1097 TITLE 50—WAR AND NATIONAL DEFENSE § 4552 (bb) materials critical to national se- (16) Services curity, as defined in section 98h–1(f) of The term ‘‘services’’ includes any effort that this title. is needed for or incidental to— (8) Facilities (A) the development, production, proc- The term ‘‘facilities’’ includes all types of essing, distribution, delivery, or use of an in- buildings, structures, or other improvements dustrial resource or a critical technology to real property (but excluding farms, church- item; es or other places of worship, and private (B) the construction of facilities; dwelling houses), and services relating to the (C) the movement of individuals and prop- use of any such building, structure, or other erty by all modes of civil transportation; or improvement. (D) other national defense programs and activities. (9) Foreign source (17) Small business concern The term ‘‘foreign source’’ means a business entity other than a ‘‘domestic source’’. The term ‘‘small business concern’’ means a (10) Guaranteeing agency business concern that meets the requirements of section 632(a) of title 15 and the regulations The term ‘‘guaranteeing agency’’ means a promulgated pursuant to that section, and in- department or agency of the United States en- cludes such business concerns owned and con- gaged in procurement for the national defense. trolled by socially and economically disadvan- (11) Homeland security taged individuals or by women. The term ‘‘homeland security’’ includes ef- (Sept. 8, 1950, ch. 932, title VII, § 702, 64 Stat. 815; forts— June 30, 1953, ch. 171, § 8, 67 Stat. 130; Pub. L. (A) to prevent terrorist attacks within the 91–379, title I, § 102, Aug. 15, 1970, 84 Stat. 796; United States; Pub. L. 102–558, title I, § 132, Oct. 28, 1992, 106 (B) to reduce the vulnerability of the Stat. 4210; Pub. L. 103–337, div. C, title XXXIV, United States to terrorism; § 3411(b), Oct. 5, 1994, 108 Stat. 3110; Pub. L. (C) to minimize damage from a terrorist 108–195, § 5, Dec. 19, 2003, 117 Stat. 2893; Pub. L. attack in the United States; and 111–67, § 8, Sept. 30, 2009, 123 Stat. 2017; Pub. L. (D) to recover from a terrorist attack in 118–31, div. A, title X, § 1080(a), Dec. 22, 2023, 137 the United States. Stat. 415.) (12) Industrial resources TERMINATION OF SECTION The term ‘‘industrial resources’’ means ma- For termination of section, see section 4564(a) terials, services, processes, or manufacturing of this title. equipment (including the processes, tech- nologies, and ancillary services for the use of Editorial Notes such equipment) needed to establish or main- tain an efficient and modern national defense REFERENCES IN TEXT industrial base. This chapter, referred to in text, was in the original (13) Materials ‘‘this Act’’, meaning act Sept. 8, 1950, ch. 932, 64 Stat. 798, known as the Defense Production Act of 1950, which The term ‘‘materials’’ includes— is classified principally to this chapter. For complete (A) any raw materials (including minerals, classification of this Act to the Code, see section 4501 metals, and advanced processed materials), of this title and Tables. commodities, articles, components (includ- The Robert T. Stafford Disaster Relief and Emer- ing critical components), products, and gency Assistance Act, referred to in par. (14), is Pub. L. items of supply; and 93–288, May 22, 1974, 88 Stat. 143. Title VI of the Act is classified generally to subchapter IV–B (§ 5195 et seq.) of (B) any technical information or services chapter 68 of Title 42, The Public Health and Welfare. ancillary to the use of any such materials, For complete classification of this Act to the Code, see commodities, articles, components, prod- Short Title note set out under section 5121 of Title 42 ucts, or items. and Tables. (14) National defense CODIFICATION The term ‘‘national defense’’ means pro- Section was formerly classified to section 2152 of the grams for military and energy production or former Appendix to this title prior to editorial reclassi- construction, military or critical infrastruc- fication and renumbering as this section. ture assistance to any foreign nation, home- land security, stockpiling, space, and any di- AMENDMENTS rectly related activity. Such term includes 2023—Par. (7). Pub. L. 118–31 designated existing pro- emergency preparedness activities conducted visions as subpar. (A), inserted heading, substituted pursuant to title VI of The Robert T. Stafford ‘‘Except as provided in subparagraph (B), the term’’ for Disaster Relief and Emergency Assistance Act ‘‘The term’’ in introductory provisions, redesignated former subpars. (A) and (B) as cls. (i) and (ii), respec- [42 U.S.C. 5195 et seq.] and critical infrastruc- tively, of subpar. (A) and realigned margins, sub- ture protection and restoration. stituted ‘‘clause (i)’’ for ‘‘subparagraph (A)’’ in cl. (ii), (15) Person and added subpar. (B). 2009—Par. (1). Pub. L. 111–67, § 8(1), substituted The term ‘‘person’’ includes an individual, ‘‘equipment identified by the President’’ for ‘‘military corporation, partnership, association, or any equipment identified by the Secretary of Defense’’. other organized group of persons, or legal suc- Pars. (2), (3). Pub. L. 111–67, § 8(2)–(4), added par. (3), cessor or representative thereof, or any State redesignated former par. (3) as (2), and struck out or local government or agency thereof. former par. (2). Prior to amendment, text of par. (2)

§ 4553 TITLE 50—WAR AND NATIONAL DEFENSE Page 1098 read as follows: ‘‘The term ‘critical industry for na- § 4553. Civilian personnel tional security’ means any industry (or industry sec- tor) identified pursuant to section 2503(6) of title 10 and Any officer or agency head may— such other industries or industry sectors as may be des- (1) appoint civilian personnel without regard ignated by the President as essential to provide indus- to section 5331(b) of title 5 and without regard trial resources required for the execution of the na- to the provisions of title 5 governing appoint- tional security strategy of the United States.’’ Pars. (4), (5). Pub. L. 111–67, § 8(2), (5), redesignated ments in the competitive service; and pars. (5) and (6) as (4) and (5), respectively, and struck (2) fix the rate of basic pay for such per- out former par. (4). Prior to amendment, text of par. (4) sonnel without regard to the provisions of read as follows: ‘‘The term ‘critical technology’ in- chapter 51 and subchapter III of chapter 53 of cludes any technology that is included in 1 or more of title 5 relating to classification and General the plans submitted pursuant to section 6681 of title 42 Schedule pay rates, or section 2508 of title 10 (unless subsequently deleted), or such other emerging or dual use technology as may except that no individual so appointed may re- be designated by the President.’’ ceive pay in excess of the annual rate of basic Par. (6). Pub. L. 111–67, § 8(5), (6), redesignated par. (7) pay payable for GS–18 of the General Schedule, as (6), in heading, struck out ‘‘defense’’ after ‘‘Domes- tic’’, and, in text, substituted ‘‘ ‘domestic industrial as the President deems appropriate to carry out base’ ’’ for ‘‘ ‘domestic defense industrial base’ ’’ and this chapter. struck out ‘‘graduated mobilization,’’ after ‘‘peace- (Sept. 8, 1950, ch. 932, title VII, § 703, 64 Stat. 816; time,’’. Former par. (6) redesignated (5). Pars. (7) to (9). Pub. L. 111–67, § 8(2), (5), (7), redesig- July 31, 1951, ch. 275, title I, § 109(a), (b), 65 Stat. nated pars. (8), (10), and (11) as (7) to (9), respectively, 138; Pub. L. 102–558, title I, § 133, Oct. 28, 1992, 106 and struck out former par. (9). Prior to amendment, Stat. 4212.) text of par. (9) read as follows: ‘‘The term ‘essential weapon system’ means a major weapon system and TERMINATION OF SECTION other items of military equipment identified by the Secretary of Defense as being essential to the execu- For termination of section, see section 4564(a) tion of the national security strategy of the United of this title. States.’’ Former par. (7) redesignated (6). Pars. (10), (11). Pub. L. 111–67, § 8(8), added pars. (10) Editorial Notes and (11). Former pars. (10) and (11) redesignated (8) and (9), respectively. REFERENCES IN TEXT Par. (12). Pub. L. 111–67, § 8(9), substituted ‘‘base’’ for ‘‘capacity’’. This chapter, referred to in text, was in the original Par. (14). Pub. L. 111–67, § 8(10), substituted ‘‘military ‘‘this Act’’, meaning act Sept. 8, 1950, ch. 932, 64 Stat. or critical infrastructure assistance to any foreign na- 798, known as the Defense Production Act of 1950, which tion, homeland security’’ for ‘‘military assistance to is classified principally to this chapter. For complete any foreign nation’’. classification of this Act to the Code, see section 4501 Par. (16). Pub. L. 111–67, § 8(11), added subpars. (C) and of this title and Tables. (D). Par. (18). Pub. L. 111–67, § 8(2), struck out par. (18). CODIFICATION Text read as follows: ‘‘The term ‘small business con- cern owned and controlled by socially and economi- Section was formerly classified to section 2153 of the cally disadvantaged individuals’ has the same meaning former Appendix to this title prior to editorial reclassi- as in section 637(d)(3)(C) of title 15.’’ fication and renumbering as this section. 2003—Pars. (3) to (13). Pub. L. 108–195, § 5(1), (2), added par. (3) and redesignated former pars. (3) to (12) as (4) AMENDMENTS to (13), respectively. Former par. (13) redesignated (14). Par. (14). Pub. L. 108–195, § 5(1), (3), redesignated par. 1992—Pub. L. 102–558 amended section generally, sub- (13) as (14) and inserted ‘‘and critical infrastructure stituting present provisions for provisions relating to protection and restoration’’ before period at end of last delegation of Presidential authority, creation of new sentence. Former par. (14) redesignated (15). agencies, appointment and compensation of officers Pars. (15) to (18). Pub. L. 108–195, § 5(1), redesignated and personnel, and State representation in regional of- pars. (14) to (17) as (15) to (18), respectively. fices. 1994—Par. (13). Pub. L. 103–337 inserted at end ‘‘Such 1951—Subsec. (a). Act July 31, 1951, § 109(a), provided term includes emergency preparedness activities con- that executive head of one agency under this chapter ducted pursuant to title VI of The Robert T. Stafford shall be paid at a rate comparable to that paid heads of Disaster Relief and Emergency Assistance Act.’’ executive departments. 1992—Pub. L. 102–558 amended section generally, sub- Subsec. (b). Act July 31, 1951, § 109(b), inserted provi- stituting present provisions for provisions defining sion to provide for State representation in regional of- terms ‘‘person’’, ‘‘materials’’, ‘‘facilities’’, ‘‘national fices. defense’’, ‘‘wages, salaries, and other compensation’’, and ‘‘defense contractor’’. 1970—Subsec. (d). Pub. L. 91–379, § 102(1), inserted ref- Statutory Notes and Related Subsidiaries erence to space in definition of national defense. Subsec. (f). Pub. L. 91–379, § 102(2), added subsec. (f). EFFECTIVE DATE OF 1992 AMENDMENT 1953—Subsec. (d). Act June 30, 1953, amended subsec. Amendment by Pub. L. 102–558 deemed to have be- (d) generally which, among other changes, inserted ref- come effective Mar. 1, 1992, see section 304 of Pub. L. erences to construction, military assistance to foreign 102–558, set out as a note under section 4502 of this title. nations and stockpiling, and struck out specific ref- erence to ‘‘operations or activities in connection with REFERENCES IN OTHER LAWS TO GS–16, 17, OR 18 PAY the Mutual Defense Assistance Act of 1949, as amend- RATES ed’’. References in laws to the rates of pay for GS–16, 17, Statutory Notes and Related Subsidiaries or 18, or to maximum rates of pay under the General Schedule, to be considered references to rates payable EFFECTIVE DATE OF 1992 AMENDMENT under specified sections of Title 5, Government Organi- Amendment by Pub. L. 102–558 deemed to have be- zation and Employees, see section 529 [title I, § 101(c)(1)] come effective Mar. 1, 1992, see section 304 of Pub. L. of Pub. L. 101–509, set out in a note under section 5376 102–558, set out as a note under section 4502 of this title. of Title 5. Page 1099 TITLE 50—WAR AND NATIONAL DEFENSE § 4553 Executive Documents (1) in a manner consistent with section 2(b) of the Act, 50 U.S.C. App. 2062(b) [now 50 U.S.C. 4502(b)], advise EX. ORD. NO. 13603. NATIONAL DEFENSE RESOURCES the President through the Assistant to the President PREPAREDNESS and National Security Advisor, the Assistant to the Ex. Ord. No. 13603, Mar. 16, 2012, 77 F.R. 16651, pro- President for Homeland Security and vided: Counterterrorism, and the Assistant to the President By the authority vested in me as President by the for Economic Policy on the effective use of the authori- Constitution and the laws of the United States of ties under the Act; and America, including the Defense Production Act of 1950, (2) prepare and coordinate an annual report to the as amended ([former] 50 U.S.C. App. 2061 et seq.) [now Congress pursuant to section 722(d) of the Act, 50 U.S.C. 50 U.S.C. 4501 et seq.], and section 301 of title 3, United App. 2171(d) [now 50 U.S.C. 4567(d)]. States Code, and as Commander in Chief of the Armed (d) The Secretary of Commerce, in cooperation with Forces of the United States, it is hereby ordered as fol- the Secretary of Defense, the Secretary of Homeland lows: Security, and other agencies, shall: (1) analyze potential effects of national emergencies PART I—PURPOSE, POLICY, AND on actual production capability, taking into account IMPLEMENTATION the entire production system, including shortages of re-

SECTION 101. Purpose. This order delegates authorities sources, and develop recommended preparedness meas- and addresses national defense resource policies and ures to strengthen capabilities for production increases programs under the Defense Production Act of 1950, as in national emergencies; and amended (the ‘‘Act’’). (2) perform industry analyses to assess capabilities of SEC. 102. Policy. The United States must have an in- the industrial base to support the national defense, and dustrial and technological base capable of meeting na- develop policy recommendations to improve the inter- tional defense requirements and capable of contrib- national competitiveness of specific domestic indus- uting to the technological superiority of its national tries and their abilities to meet national defense pro- defense equipment in peacetime and in times of na- gram needs. tional emergency. The domestic industrial and techno- PART II—PRIORITIES AND ALLOCATIONS logical base is the foundation for national defense pre- paredness. The authorities provided in the Act shall be SEC. 201. Priorities and Allocations Authorities. (a) The used to strengthen this base and to ensure it is capable authority of the President conferred by section 101 of of responding to the national defense needs of the the Act, 50 U.S.C. App. 2071 [now 50 U.S.C. 4511], to re- United States. quire acceptance and priority performance of contracts SEC. 103. General Functions. Executive departments or orders (other than contracts of employment) to pro- and agencies (agencies) responsible for plans and pro- mote the national defense over performance of any grams relating to national defense (as defined in sec- other contracts or orders, and to allocate materials, tion 801(j) of this order), or for resources and services services, and facilities as deemed necessary or appro- needed to support such plans and programs, shall: priate to promote the national defense, is delegated to (a) identify requirements for the full spectrum of the following agency heads: emergencies, including essential military and civilian (1) the Secretary of Agriculture with respect to food demand; resources, food resource facilities, livestock resources, (b) assess on an ongoing basis the capability of the veterinary resources, plant health resources, and the domestic industrial and technological base to satisfy domestic distribution of farm equipment and commer- requirements in peacetime and times of national emer- cial fertilizer; gency, specifically evaluating the availability of the (2) the Secretary of Energy with respect to all forms most critical resource and production sources, includ- of energy; ing subcontractors and suppliers, materials, skilled (3) the Secretary of Health and Human Services with labor, and professional and technical personnel; respect to health resources; (c) be prepared, in the event of a potential threat to (4) the Secretary of Transportation with respect to the security of the United States, to take actions nec- all forms of civil transportation; essary to ensure the availability of adequate resources (5) the Secretary of Defense with respect to water re- and production capability, including services and crit- sources; and ical technology, for national defense requirements; (6) the Secretary of Commerce with respect to all (d) improve the efficiency and responsiveness of the other materials, services, and facilities, including con- domestic industrial base to support national defense re- struction materials. quirements; and (b) The Secretary of each agency delegated authority (e) foster cooperation between the defense and com- under subsection (a) of this section (resource depart- mercial sectors for research and development and for ments) shall plan for and issue regulations to prioritize acquisition of materials, services, components, and and allocate resources and establish standards and pro- equipment to enhance industrial base efficiency and re- cedures by which the authority shall be used to pro- sponsiveness. mote the national defense, under both emergency and SEC. 104. Implementation. (a) The National Security non-emergency conditions. Each Secretary shall au- Council and Homeland Security Council, in conjunction thorize the heads of other agencies, as appropriate, to with the National Economic Council, shall serve as the place priority ratings on contracts and orders for mate- integrated policymaking forum for consideration and rials, services, and facilities needed in support of pro- formulation of national defense resource preparedness grams approved under section 202 of this order. policy and shall make recommendations to the Presi- (c) Each resource department shall act, as necessary dent on the use of authorities under the Act. and appropriate, upon requests for special priorities as- (b) The Secretary of Homeland Security shall: sistance, as defined by section 801(l) of this order, in a (1) advise the President on issues of national defense time frame consistent with the urgency of the need at resource preparedness and on the use of the authorities hand. In situations where there are competing program and functions delegated by this order; requirements for limited resources, the resource de- (2) provide for the central coordination of the plans partment shall consult with the Secretary who made and programs incident to authorities and functions del- the required determination under section 202 of this egated under this order, and provide guidance to agen- order. Such Secretary shall coordinate with and iden- cies assigned functions under this order, developed in tify for the resource department which program re- consultation with such agencies; and quirements to prioritize on the basis of operational ur- (3) report to the President periodically concerning all gency. In situations involving more than one Secretary program activities conducted pursuant to this order. making such a required determination under section (c) The Defense Production Act Committee, described 202 of this order, the Secretaries shall coordinate with in section 701 of this order, shall: and identify for the resource department which pro-

§ 4553 TITLE 50—WAR AND NATIONAL DEFENSE Page 1100 gram requirements should receive priority on the basis SEC. 302. Loans. To reduce current or projected short- of operational urgency. falls of resources, critical technology items, or mate- (d) If agreement cannot be reached between two such rials essential for the national defense, the head of each Secretaries, then the issue shall be referred to the agency engaged in procurement for the national de- President through the Assistant to the President and fense is delegated the authority of the President under National Security Advisor and the Assistant to the section 302 of the Act, 50 U.S.C. App. 2092 [now 50 U.S.C. President for Homeland Security and 4532], to make loans thereunder. Terms and conditions Counterterrorism. of loans under this authority shall be determined in (e) The Secretary of each resource department, when consultation with the Secretary of the Treasury and necessary, shall make the finding required under sec- the Director of OMB. tion 101(b) of the Act, 50 U.S.C. App. 2071(b) [now 50 SEC. 303. Additional Authorities. (a) To create, main- U.S.C. 4511(b)]. This finding shall be submitted for the tain, protect, expand, or restore domestic industrial President’s approval through the Assistant to the base capabilities essential for the national defense, the President and National Security Advisor and the As- head of each agency engaged in procurement for the na- sistant to the President for Homeland Security and tional defense is delegated the authority of the Presi- Counterterrorism. Upon such approval, the Secretary dent under section 303 of the Act, 50 U.S.C. App. 2093 of the resource department that made the finding may [now 50 U.S.C. 4533], to make provision for purchases of, use the authority of section 101(a) of the Act, 50 U.S.C. or commitments to purchase, an industrial resource or App. 2071(a) [now 50 U.S.C. 4511(a)], to control the gen- a critical technology item for Government use or re- eral distribution of any material (including applicable sale, and to make provision for the development of pro- services) in the civilian market. duction capabilities, and for the increased use of SEC. 202. Determinations. Except as provided in section emerging technologies in security program applica- 201(e) of this order, the authority delegated by section tions, and to enable rapid transition of emerging tech- 201 of this order may be used only to support programs nologies. that have been determined in writing as necessary or (b) Materials acquired under section 303 of the Act, 50 appropriate to promote the national defense: U.S.C. App. 2093 [now 50 U.S.C. 4533], that exceed the (a) by the Secretary of Defense with respect to mili- needs of the programs under the Act may be trans- tary production and construction, military assistance ferred to the National Defense Stockpile, if, in the to foreign nations, military use of civil transportation, judgment of the Secretary of Defense as the National stockpiles managed by the Department of Defense, Defense Stockpile Manager, such transfers are in the space, and directly related activities; (b) by the Secretary of Energy with respect to energy public interest. production and construction, distribution and use, and SEC. 304. Subsidy Payments. To ensure the supply of directly related activities; and raw or nonprocessed materials from high-cost sources, (c) by the Secretary of Homeland Security with re- or to ensure maximum production or supply in any spect to all other national defense programs, including area at stable prices of any materials in light of a tem- civil defense and continuity of Government. porary increase in transportation cost, the head of each SEC. 203. Maximizing Domestic Energy Supplies. The au- agency engaged in procurement for the national de- thorities of the President under section 101(c)(1)–(2) of fense is delegated the authority of the President under the Act, 50 U.S.C. App. 2071(c)(1)–(2) [now 50 U.S.C. section 303(c) of the Act, 50 U.S.C. App. 2093(c) [now 50 4511(c)(1)–(2)], are delegated to the Secretary of Com- U.S.C. 4533(c)], to make subsidy payments, after con- merce, with the exception that the authority to make sultation with the Secretary of the Treasury and the findings that materials (including equipment), services, Director of OMB. and facilities are critical and essential, as described in SEC. 305. Determinations and Findings. (a) Pursuant to section 101(c)(2)(A) of the Act, 50 U.S.C. App. budget authority provided by an appropriations act in 2071(c)(2)(A) [now 50 U.S.C. 4511(c)(2)(A)], is delegated to advance for credit assistance under section 301 or 302 of the Secretary of Energy. the Act, 50 U.S.C. App. 2091, 2092 [now 50 U.S.C. 4531, SEC. 204. Chemical and Biological Warfare. The author- 4532], and consistent with the Federal Credit Reform ity of the President conferred by section 104(b) of the Act of 1990, as amended (FCRA), 2 U.S.C. 661 et seq., the Act, 50 U.S.C. App. 2074(b) [now 50 U.S.C. 4514(b)], is del- head of each agency engaged in procurement for the na- egated to the Secretary of Defense. This authority may tional defense is delegated the authority to make the not be further delegated by the Secretary. determinations set forth in sections 301(a)(2) and 302(b)(2) of the Act [50 U.S.C. 4531(a)(2), 4532(b)(2)], in PART III—EXPANSION OF PRODUCTIVE CAPACITY consultation with the Secretary making the required AND SUPPLY determination under section 202 of this order; provided, SEC. 301. Loan Guarantees. (a) To reduce current or that such determinations shall be made after due con- projected shortfalls of resources, critical technology sideration of the provisions of OMB Circular A–129 and items, or materials essential for the national defense, the credit subsidy score for the relevant loan or loan the head of each agency engaged in procurement for the guarantee as approved by OMB pursuant to FCRA. national defense, as defined in section 801(h) of this (b) Other than any determination by the President order, is authorized pursuant to section 301 of the Act, under section 303(a)(7)(b) of the Act [probably means 50 U.S.C. App. 2091 [now 50 U.S.C. 4531], to guarantee section 303(a)(7)(B) of the Act, 50 U.S.C. 4533(a)(7)(B)], loans by private institutions. the head of each agency engaged in procurement for the (b) Each guaranteeing agency is designated and au- national defense is delegated the authority to make the thorized to: (1) act as fiscal agent in the making of its required determinations, judgments, certifications, own guarantee contracts and in otherwise carrying out findings, and notifications defined under section 303 of the purposes of section 301 of the Act [50 U.S.C. 4531]; the Act, 50 U.S.C. App. 2093 [now 50 U.S.C. 4533], in con- and (2) contract with any Federal Reserve Bank to as- sultation with the Secretary making the required de- sist the agency in serving as fiscal agent. termination under section 202 of this order. (c) Terms and conditions of guarantees under this au- SEC. 306. Strategic and Critical Materials. The Sec- thority shall be determined in consultation with the retary of Defense, and the Secretary of the Interior in Secretary of the Treasury and the Director of the Of- consultation with the Secretary of Defense as the Na- fice of Management and Budget (OMB). The guaran- tional Defense Stockpile Manager, are each delegated teeing agency is authorized, following such consulta- the authority of the President under section 303(a)(1)(B) tion, to prescribe: (1) either specifically or by max- of the Act, 50 U.S.C. App. 2093(a)(1)(B) [now 50 U.S.C. imum limits or otherwise, rates of interest, guarantee 4533(a)(1)(B)], to encourage the exploration, develop- and commitment fees, and other charges which may be ment, and mining of strategic and critical materials made in connection with such guarantee contracts; and and other materials. (2) regulations governing the forms and procedures SEC. 307. Substitutes. The head of each agency engaged (which shall be uniform to the extent practicable) to be in procurement for the national defense is delegated utilized in connection therewith. the authority of the President under section 303(g) of Page 1101 TITLE 50—WAR AND NATIONAL DEFENSE § 4553 the Act, 50 U.S.C. App. 2093(g) [now 50 U.S.C. 4533(g)], to 2158(c), (d) [now 50 U.S.C. 4558(c), (d)], is delegated to make provision for the development of substitutes for the heads of agencies otherwise delegated authority strategic and critical materials, critical components, under this order. The status of the use of such delega- critical technology items, and other resources to aid tions shall be furnished to the Secretary of Homeland the national defense. Security. SEC. 308. Government-Owned Equipment. The head of SEC. 402. Advisory Committees. The authority of the each agency engaged in procurement for the national President under section 708(d) of the Act, 50 U.S.C. App. defense is delegated the authority of the President 2158(d) [now 50 U.S.C. 4558(d)], and delegated in section under section 303(e) of the Act, 50 U.S.C. App. 2093(e) 401 of this order (relating to establishment of advisory [now 50 U.S.C. 4533(e)], to: committees) shall be exercised only after consultation (a) procure and install additional equipment, facili- with, and in accordance with, guidelines and procedures ties, processes, or improvements to plants, factories, established by the Administrator of General Services. and other industrial facilities owned by the Federal SEC. 403. Regulations. The Secretary of Homeland Se- Government and to procure and install Government- curity, after approval of the Attorney General, and owned equipment in plants, factories, or other indus- after consultation by the Attorney General with the trial facilities owned by private persons; Chairman of the Federal Trade Commission, shall pro- (b) provide for the modification or expansion of pri- mulgate rules pursuant to section 708(e) of the Act, 50 vately owned facilities, including the modification or U.S.C. App. 2158(e) [now 50 U.S.C. 4558(e)], incorporating improvement of production processes, when taking ac- standards and procedures by which voluntary agree- tions under sections 301, 302, or 303 of the Act, 50 U.S.C. ments and plans of action may be developed and carried App. 2091, 2092, 2093 [now 50 U.S.C. 4531, 4532, 4533]; and (c) sell or otherwise transfer equipment owned by the out. Such rules may be adopted by other agencies to Federal Government and installed under section 303(e) fulfill the rulemaking requirement of section 708(e) of of the Act, 50 U.S.C. App. 2093(e) [now 50 U.S.C. 4533(e)], the Act, 50 U.S.C. App. 2158(e) [now 50 U.S.C. 4558(e)]. to the owners of such plants, factories, or other indus- PART V—EMPLOYMENT OF PERSONNEL trial facilities. SEC. 309. Defense Production Act Fund. The Secretary SEC. 501. National Defense Executive Reserve. (a) In ac- of Defense is designated the Defense Production Act cordance with section 710(e) of the Act, 50 U.S.C. App. Fund Manager, in accordance with section 304(f) of the 2160(e) [now 50 U.S.C. 4560(e)], there is established in Act, 50 U.S.C. App. 2094(f) [50 U.S.C. 4534(f)], and shall the executive branch a National Defense Executive Re- carry out the duties specified in section 304 of the Act, serve (NDER) composed of persons of recognized exper- in consultation with the agency heads having approved, tise from various segments of the private sector and and appropriated funds for, projects under title III of from Government (except full-time Federal employees) the Act [50 U.S.C. 4531 et seq.]. for training for employment in executive positions in SEC. 310. Critical Items. The head of each agency en- the Federal Government in the event of a national de- gaged in procurement for the national defense is dele- fense emergency. gated the authority of the President under section (b) The Secretary of Homeland Security shall issue 107(b)(1) of the Act, 50 U.S.C. App. 2077(b)(1) [now 50 necessary guidance for the NDER program, including U.S.C. 4517(b)(1)], to take appropriate action to ensure appropriate guidance for establishment, recruitment, that critical components, critical technology items, es- training, monitoring, and activation of NDER units sential materials, and industrial resources are avail- and shall be responsible for the overall coordination of able from reliable sources when needed to meet defense the NDER program. The authority of the President requirements during peacetime, graduated mobiliza- under section 710(e) of the Act, 50 U.S.C. App. 2160(e) tion, and national emergency. Appropriate action may [now 50 U.S.C. 4560(e)], to determine periods of national include restricting contract solicitations to reliable defense emergency is delegated to the Secretary of sources, restricting contract solicitations to domestic Homeland Security. sources (pursuant to statutory authority), stockpiling (c) The head of any agency may implement section critical components, and developing substitutes for 501(a) of this order with respect to NDER operations in critical components or critical technology items. such agency. SEC. 311. Strengthening Domestic Capability. The head (d) The head of each agency with an NDER unit may of each agency engaged in procurement for the national exercise the authority under section 703 of the Act, 50 defense is delegated the authority of the President U.S.C. App. 2153 [now 50 U.S.C. 4553], to employ civilian under section 107(a) of the Act, 50 U.S.C. App. 2077(a) personnel when activating all or a part of its NDER [now 50 U.S.C. 4517(a)], to utilize the authority of title unit. The exercise of this authority shall be subject to III of the Act [50 U.S.C. 4531 et seq.] or any other provi- the provisions of sections 501(e) and (f) of this order and sion of law to provide appropriate incentives to de- shall not be redelegated. velop, maintain, modernize, restore, and expand the (e) The head of an agency may activate an NDER productive capacities of domestic sources for critical unit, in whole or in part, upon the written determina- components, critical technology items, materials, and tion of the Secretary of Homeland Security that an industrial resources essential for the execution of the emergency affecting the national defense exists and national security strategy of the United States. SEC. 312. Modernization of Equipment. The head of each that the activation of the unit is necessary to carry out agency engaged in procurement for the national de- the emergency program functions of the agency. fense, in accordance with section 108(b) of the Act, 50 (f) Prior to activating the NDER unit, the head of the U.S.C. App. 2078(b) [now 50 U.S.C. 4518(b)], may utilize agency shall notify, in writing, the Assistant to the the authority of title III of the Act [50 U.S.C. 4531 et President for Homeland Security and Counterterrorism seq.] to guarantee the purchase or lease of advance of the impending activation. manufacturing equipment, and any related services SEC. 502. Consultants. The head of each agency other- with respect to any such equipment for purposes of the wise delegated functions under this order is delegated Act [50 U.S.C. 4501 et seq.]. In considering title III the authority of the President under sections 710(b) and projects, the head of each agency engaged in procure- (c) of the Act, 50 U.S.C. App. 2160(b), (c) [now 50 U.S.C. ment for the national defense shall provide a strong 4560(b), (c)], to employ persons of outstanding experi- preference for proposals submitted by a small business ence and ability without compensation and to employ supplier or subcontractor in accordance with section experts, consultants, or organizations. The authority 108(b)(2) of the Act, 50 U.S.C. App. 2078(b)(2) [now 50 delegated by this section may not be redelegated. U.S.C. 4518(b)(2)]. PART VI—LABOR REQUIREMENTS PART IV—VOLUNTARY AGREEMENTS AND SEC. 601. Secretary of Labor. (a) The Secretary of ADVISORY COMMITTEES Labor, in coordination with the Secretary of Defense SEC. 401. Delegations. The authority of the President and the heads of other agencies, as deemed appropriate under sections 708(c) and (d) of the Act, 50 U.S.C. App. by the Secretary of Labor, shall:

§ 4553 TITLE 50—WAR AND NATIONAL DEFENSE Page 1102 (1) collect and maintain data necessary to make a PART VIII—GENERAL PROVISIONS continuing appraisal of the Nation’s workforce needs SEC. 801. Definitions. In addition to the definitions in for purposes of national defense; section 702 of the Act, 50 U.S.C. App. 2152 [now 50 U.S.C. (2) upon request by the Director of Selective Service, 4552], the following definitions apply throughout this and in coordination with the Secretary of Defense, as- order: sist the Director of Selective Service in development of (a) ‘‘Civil transportation’’ includes movement of per- policies regulating the induction and deferment of per- sons and property by all modes of transportation in sons for duty in the armed services; interstate, intrastate, or foreign commerce within the (3) upon request from the head of an agency with au- United States, its territories and possessions, and the thority under this order, consult with that agency with District of Columbia, and related public storage and respect to: (i) the effect of contemplated actions on warehousing, ports, services, equipment and facilities, labor demand and utilization; (ii) the relation of labor such as transportation carrier shop and repair facili- demand to materials and facilities requirements; and ties. ‘‘Civil transportation’’ also shall include direc- (iii) such other matters as will assist in making the ex- tion, control, and coordination of civil transportation ercise of priority and allocations functions consistent capacity regardless of ownership. ‘‘Civil transpor- with effective utilization and distribution of labor; tation’’ shall not include transportation owned or con- (4) upon request from the head of an agency with au- trolled by the Department of Defense, use of petroleum thority under this order: (i) formulate plans, programs, and gas pipelines, and coal slurry pipelines used only to and policies for meeting the labor requirements of ac- supply energy production facilities directly. tions to be taken for national defense purposes; and (ii) (b) ‘‘Energy’’ means all forms of energy including pe- estimate training needs to help address national de- troleum, gas (both natural and manufactured), elec- fense requirements and promote necessary and appro- tricity, solid fuels (including all forms of coal, coke, priate training programs; and coal chemicals, coal liquification, and coal gasifi- (5) develop and implement an effective labor-manage- cation), solar, wind, other types of renewable energy, ment relations policy to support the activities and pro- atomic energy, and the production, conservation, use, grams under this order, with the cooperation of other control, and distribution (including pipelines) of all of agencies as deemed appropriate by the Secretary of these forms of energy. Labor, including the National Labor Relations Board, (c) ‘‘Farm equipment’’ means equipment, machinery, the Federal Labor Relations Authority, the National and repair parts manufactured for use on farms in con- Mediation Board, and the Federal Mediation and Con- nection with the production or preparation for market ciliation Service. use of food resources. (b) All agencies shall cooperate with the Secretary of (d) ‘‘Fertilizer’’ means any product or combination of Labor, upon request, for the purposes of this section, to products that contain one or more of the elements ni- the extent permitted by law. trogen, phosphorus, and potassium for use as a plant PART VII—DEFENSE PRODUCTION ACT nutrient. (e) ‘‘Food resources’’ means all commodities and COMMITTEE products, (simple, mixed, or compound), or com- SEC. 701. The Defense Production Act Committee. (a) The plements to such commodities or products, that are ca- Defense Production Act Committee (Committee) shall pable of being ingested by either human beings or ani- be composed of the following members, in accordance mals, irrespective of other uses to which such commod- with section 722(b) of the Act, 50 U.S.C. App. 2171(b) ities or products may be put, at all stages of processing [now 50 U.S.C. 4567(b)]: from the raw commodity to the products thereof in (1) The Secretary of State; vendible form for human or animal consumption. (2) The Secretary of the Treasury; ‘‘Food resources’’ also means potable water packaged (3) The Secretary of Defense; in commercially marketable containers, all starches, (4) The Attorney General; sugars, vegetable and animal or marine fats and oils, (5) The Secretary of the Interior; seed, cotton, hemp, and flax fiber, but does not mean (6) The Secretary of Agriculture; any such material after it loses its identity as an agri- (7) The Secretary of Commerce; cultural commodity or agricultural product. (8) The Secretary of Labor; (f) ‘‘Food resource facilities’’ means plants, machin- (9) The Secretary of Health and Human Services; ery, vehicles (including on farm), and other facilities (10) The Secretary of Transportation; required for the production, processing, distribution, (11) The Secretary of Energy; and storage (including cold storage) of food resources, (12) The Secretary of Homeland Security; and for the domestic distribution of farm equipment (13) The Director of National Intelligence; and fertilizer (excluding transportation thereof). (14) The Director of the Central Intelligence Agency; (g) ‘‘Functions’’ include powers, duties, authority, re- (15) The Chair of the Council of Economic Advisers; sponsibilities, and discretion. (16) The Administrator of the National Aeronautics (h) ‘‘Head of each agency engaged in procurement for and Space Administration; and the national defense’’ means the heads of the Depart- (17) The Administrator of General Services. ments of State, Justice, the Interior, and Homeland Se- (b) The Director of OMB and the Director of the Of- curity, the Office of the Director of National Intel- fice of Science and Technology Policy shall be invited ligence, the Central Intelligence Agency, the National to participate in all Committee meetings and activities Aeronautics and Space Administration, the General in an advisory role. The Chairperson, as designated by Services Administration, and all other agencies with the President pursuant to section 722 of the Act, 50 authority delegated under section 201 of this order. U.S.C. App. 2171 [now 50 U.S.C. 4567], may invite the (i) ‘‘Health resources’’ means drugs, biological prod- heads of other agencies or offices to participate in ucts, medical devices, materials, facilities, health sup- Committee meetings and activities in an advisory role, plies, services and equipment required to diagnose, as appropriate. mitigate or prevent the impairment of, improve, treat, SEC. 702. Offsets. The Secretary of Commerce shall cure, or restore the physical or mental health condi- prepare and submit to the Congress the annual report tions of the population. required by section 723 of the Act, 50 U.S.C. App. 2172 (j) ‘‘National defense’’ means programs for military [now 50 U.S.C. 4568], in consultation with the Secre- and energy production or construction, military or taries of State, the Treasury, Defense, and Labor, the critical infrastructure assistance to any foreign nation, United States Trade Representative, the Director of homeland security, stockpiling, space, and any directly National Intelligence, and the heads of other agencies related activity. Such term includes emergency pre- as appropriate. The heads of agencies shall provide the paredness activities conducted pursuant to title VI of Secretary of Commerce with such information as may the Robert T. Stafford Disaster Relief and Emergency be necessary for the effective performance of this func- Assistance Act, 42 U.S.C. 5195 et seq., and critical infra- tion. structure protection and restoration. Page 1103 TITLE 50—WAR AND NATIONAL DEFENSE § 4554 (k) ‘‘Offsets’’ means compensation practices required (c) Nothing in this order shall affect the authorities as a condition of purchase in either government-to-gov- assigned under Executive Order 12472 of April 3, 1984, as ernment or commercial sales of defense articles and/or amended [former 42 U.S.C. 5195 note]. defense services as defined by the Arms Export Control SEC. 804. General Provisions. (a) Nothing in this order Act, 22 U.S.C. 2751 et seq., and the International Traffic shall be construed to impair or otherwise affect func- in Arms Regulations, 22 C.F.R. 120.1–130.17. tions of the Director of OMB relating to budgetary, ad- (l) ‘‘Special priorities assistance’’ means action by re- ministrative, or legislative proposals. source departments to assist with expediting deliveries, (b) This order shall be implemented consistent with placing rated orders, locating suppliers, resolving pro- applicable law and subject to the availability of appro- duction or delivery conflicts between various rated or- priations. ders, addressing problems that arise in the fulfillment (c) This order is not intended to, and does not, create of a rated order or other action authorized by a dele- any right or benefit, substantive or procedural, enforce- gated agency, and determining the validity of rated or- able at law or in equity by any party against the ders. United States, its departments, agencies, or entities, (m) ‘‘Strategic and critical materials’’ means mate- its officers, employees, or agents, or any other person. rials (including energy) that (1) would be needed to sup- ply the military, industrial, and essential civilian BARACK OBAMA. needs of the United States during a national emer- gency, and (2) are not found or produced in the United

§ 4554. Regulations and orders States in sufficient quantities to meet such need and (a) In general are vulnerable to the termination or reduction of the availability of the material. Subject to section 4559 of this title and sub- (n) ‘‘Water resources’’ means all usable water, from section (b), the President may prescribe such all sources, within the jurisdiction of the United regulations and issue such orders as the Presi- States, that can be managed, controlled, and allocated dent may determine to be appropriate to carry to meet emergency requirements, except ‘‘water re- out this chapter. sources’’ does not include usable water that qualifies as ‘‘food resources.’’ (b) Procurement regulations SEC. 802. General. (a) Except as otherwise provided in Any procurement regulation, procedure, or section 802(c) of this order, the authorities vested in the President by title VII of the Act, 50 U.S.C. App. 2151 form issued pursuant to subsection (a) shall be et seq. [now 50 U.S.C. 4551 et seq.], are delegated to the issued pursuant to section 25 of the Office of head of each agency in carrying out the delegated au- Federal Procurement Policy Act [now 41 U.S.C. thorities under the Act [50 U.S.C. 4501 et seq.] and this 1302, 1303], and shall conform to any govern- order, by the Secretary of Labor in carrying out part mentwide procurement policy or regulation VI of this order, and by the Secretary of the Treasury issued pursuant to section 6 or 25 of that Act in exercising the functions assigned in Executive Order [see 41 U.S.C. 1121 et seq., 1302, 1303]. 11858 [50 U.S.C. 4565 note], as amended. (b) The authorities that may be exercised and per- (Sept. 8, 1950, ch. 932, title VII, § 704, 64 Stat. 816; formed pursuant to section 802(a) of this order shall in- July 31, 1951, ch. 275, title I, § 109(c), 65 Stat. 139; clude: Pub. L. 102–558, title I, § 134, Oct. 28, 1992, 106 (1) the power to redelegate authorities, and to au- thorize the successive redelegation of authorities to Stat. 4212.) agencies, officers, and employees of the Government; TERMINATION OF SECTION and (2) the power of subpoena under section 705 of the For termination of section, see section 4564(a) Act, 50 U.S.C. App. 2155 [now 50 U.S.C. 4555], with re- of this title. spect to (i) authorities delegated in parts II, III, and section 702 of this order, and (ii) the functions assigned Editorial Notes to the Secretary of the Treasury in Executive Order 11858 [50 U.S.C. 4565 note], as amended, provided that REFERENCES IN TEXT the subpoena power referenced in subsections (i) and This chapter, referred to in subsec. (a), was in the (ii) shall be utilized only after the scope and purpose of original ‘‘this Act’’, meaning act Sept. 8, 1950, ch. 932, the investigation, inspection, or inquiry to which the 64 Stat. 798, known as the Defense Production Act of subpoena relates have been defined either by the appro- 1950, which is classified principally to this chapter. For priate officer identified in section 802(a) of this order or complete classification of this Act to the Code, see sec- by such other person or persons as the officer shall des- tion 4501 of this title and Tables. ignate. Sections 6 and 25 of the Office of Federal Procure- (c) Excluded from the authorities delegated by sec- ment Policy Act, referred to in subsec. (b), were sec- tion 802(a) of this order are authorities delegated by tions 6 and 25 of Pub. L. 93–400, which were classified to parts IV and V of this order, authorities in section[s] sections 405 and 421, respectively, of former Title 41, 721 and 722 of the Act, 50 U.S.C. App. 2170–2171 [now 50 Public Contracts, and were repealed and largely re- U.S.C. 4565, 4567], and the authority with respect to fix- stated in subchapter II (§ 1121 et seq.) of chapter 11 and ing compensation under section 703 of the Act, 50 U.S.C. as sections 1302 and 1303 of Title 41, Public Contracts, App. 2153 [now 50 U.S.C. 4553]. SEC. 803. Authority. (a) Executive Order 12919 of June by Pub. L. 111–350, §§ 3, 7(b), Jan. 4, 2011, 124 Stat. 3677, 3, 1994, and sections 401(3)–(4) of Executive Order 12656 3855. of November 18, 1988, [42 U.S.C. 5195 note] are revoked. CODIFICATION All other previously issued orders, regulations, rulings, certificates, directives, and other actions relating to Section was formerly classified to section 2154 of the any function affected by this order shall remain in ef- former Appendix to this title prior to editorial reclassi- fect except as they are inconsistent with this order or fication and renumbering as this section. are subsequently amended or revoked under proper au- AMENDMENTS thority. Nothing in this order shall affect the validity or force of anything done under previous delegations or 1992—Pub. L. 102–558 amended section generally, sub- other assignment of authority under the Act [50 U.S.C. stituting present provisions for provisions authorizing 4501 et seq.]. promulgation of rules, regulations, and orders by the (b) Nothing in this order shall affect the authorities President in order to carry out this chapter. assigned under Executive Order 11858 of May 7, 1975, as 1951—Act July 31, 1951, limited authority to regulate amended [50 U.S.C. 4565 note], except as provided in sec- natural gas where a State agency is handling the mat- tion 802 of this order. ter.

§ 4555 TITLE 50—WAR AND NATIONAL DEFENSE Page 1104 Statutory Notes and Related Subsidiaries mony or to appear and produce documents, or EFFECTIVE DATE OF 1992 AMENDMENT both; and any failure to obey such order of the court may be punished by such court as a con- Amendment by Pub. L. 102–558 deemed to have be- tempt thereof. come effective Mar. 1, 1992, see section 304 of Pub. L. 102–558, set out as a note under section 4502 of this title. (b) Production of documentary evidence; reim- bursement of witnesses Executive Documents The production of a person’s books, records, or DELEGATION OF FUNCTIONS other documentary evidence shall not be re- Authority of President to implement the Defense quired at any place other than the place where Production Act of 1950 (this chapter) in this sub- such person usually keeps them, if, prior to the chapter— return date specified in the regulations, sub- (1) with respect to hoarding of health and medical poena, or other document issued with respect resources necessary to respond to the spread of thereto, such person furnishes the President COVID–19 within the United States delegated to Sec- with a true copy of such books, records, or other retary of Health and Human Services, see section documentary evidence (certified by such person 2(a)(ii) of Ex. Ord. 13910, Mar. 23, 2020, 85 F.R. 17001, under oath to be a true and correct copy) or en- set out as a note under section 4512 of this title; (2) with respect to responding to the spread of ters into a stipulation with the President as to COVID–19 within the United States delegated to Sec- the information contained in such books, retary of Health and Human Services and Secretary records, or other documentary evidence. Wit- of Homeland Security, see section 2(a) of Ex. Ord. No. nesses shall be paid the same fees and mileage 13911, Mar. 27, 2020, 85 F.R. 18403, set out as a note that are paid witnesses in the courts of the under section 4511 of this title; and United States. (3) in addition to the delegation of authority in Ex. Ord. No. 13911, delegated to Chief Executive Officer of (c) Performance of prohibited act or failure to the United States International Development Fi- perform required act nance Corporation, see section 2 of Ex. Ord. No. 13922, Any person who willfully performs any act May 14, 2020, 85 F.R. 30583, set out as a note under sec- prohibited or willfully fails to perform any act tion 4532 of this title. Functions of President under this chapter relating to required by the above provisions of this section, production, conservation, use, control, distribution, or any rule, regulation, or order thereunder, and allocation of energy, delegated to Secretary of En- shall upon conviction be fined not more than ergy, see section 4 of Ex. Ord. No. 11790, eff. June 25, $10,000 or imprisoned for not more than one year 1974, 39 F.R. 23185, set out as a note under section 761 or both. of Title 15, Commerce and Trade. (d) Protection of confidentiality; sanction for vio-

§ 4555. Investigations; records; reports; sub- lation poenas; right to counsel Information obtained under this section which (a) Authority of President to obtain information; the President deems confidential or with ref- enforcement of subpoenas erence to which a request for confidential treat- ment is made by the person furnishing such in- The President shall be entitled, while this formation shall not be published or disclosed un- chapter is in effect and for a period of two years less the President determines that the with- thereafter, by regulation, subpoena, or other- holding thereof is contrary to the interest of the wise, to obtain such information from, require national defense, and any person willfully vio- such reports and the keeping of such records by, lating this provision shall, upon conviction, be make such inspection of the books, records, and fined not more than $10,000, or imprisoned for other writings, premises or property of, and take not more than one year, or both. the sworn testimony of, and administer oaths and affirmations to, any person as may be nec- (e) Right to record of testimony and representa- essary or appropriate, in his discretion, to the tion by counsel enforcement or the administration of this chap- Any person subpoenaed under this section ter and the regulations or orders issued there- shall have the right to make a record of his tes- under. The authority of the President under this timony and to be represented by counsel. section includes the authority to obtain infor- (Sept. 8, 1950, ch. 932, title VII, § 705, 64 Stat. 816; mation in order to perform industry studies as- July 31, 1951, ch. 275, title I, § 109(d), 65 Stat. 139; sessing the capabilities of the United States in- June 30, 1952, ch. 530, title I, § 117, 66 Stat. 306; dustrial base to support the national defense. June 30, 1953, ch. 171, § 9, 67 Stat. 131; Pub. L. The President shall issue regulations insuring 91–452, title II, § 251, Oct. 15, 1970, 84 Stat. 931; that the authority of this subsection will be uti- Pub. L. 102–558, title I, § 142, Oct. 28, 1992, 106 lized only after the scope and purpose of the in- Stat. 4217; Pub. L. 108–195, § 4, Dec. 19, 2003, 117 vestigation, inspection, or inquiry to be made Stat. 2893.) have been defined by competent authority, and it is assured that no adequate and authoritative TERMINATION OF SECTION data are available from any Federal or other re- For termination of section, see section 4564(a) sponsible agency. In case of contumacy by, or of this title. refusal to obey a subpoena served upon, any per- son referred to in this subsection, the district Editorial Notes court of the United States for any district in which such person is found or resides or trans- REFERENCES IN TEXT acts business, upon application by the Presi- This chapter, referred to in subsec. (a), was in the dent, shall have jurisdiction to issue an order re- original ‘‘this Act’’, meaning act Sept. 8, 1950, ch. 932, quiring such person to appear and give testi- 64 Stat. 798, known as the Defense Production Act of Page 1105 TITLE 50—WAR AND NATIONAL DEFENSE § 4556 1950, which is classified principally to this chapter. For Executive Documents complete classification of this Act to the Code, see sec- DELEGATION OF FUNCTIONS tion 4501 of this title and Tables. Authority of President to implement the Defense CODIFICATION Production Act of 1950 (this chapter) in this sub- chapter— Section was formerly classified to section 2155 of the (1) with respect to hoarding of health and medical former Appendix to this title prior to editorial reclassi- resources necessary to respond to the spread of fication and renumbering as this section. COVID–19 within the United States delegated to Sec- retary of Health and Human Services, see section AMENDMENTS 2(a)(ii) of Ex. Ord. 13910, Mar. 23, 2020, 85 F.R. 17001, 2003—Subsec. (a). Pub. L. 108–195 inserted after first set out as a note under section 4512 of this title; (2) with respect to responding to the spread of sentence ‘‘The authority of the President under this COVID–19 within the United States delegated to Sec- section includes the authority to obtain information in retary of Health and Human Services and Secretary order to perform industry studies assessing the capa- of Homeland Security, see section 2(a) of Ex. Ord. No. bilities of the United States industrial base to support 13911, Mar. 27, 2020, 85 F.R. 18403, set out as a note the national defense.’’ under section 4511 of this title; and 1992—Subsec. (a). Pub. L. 102–558, § 142(1), substituted (3) in addition to the delegation of authority in Ex. ‘‘subpoena’’ for ‘‘subpena’’ in two places. Ord. No. 13911, delegated to Chief Executive Officer of Subsec. (b). Pub. L. 102–558, § 142(1), (2), redesignated the United States International Development Fi- subsec. (c) as (b) and substituted ‘‘subpoena’’ for ‘‘sub- nance Corporation, see section 2 of Ex. Ord. No. 13922, pena’’. May 14, 2020, 85 F.R. 30583, set out as a note under sec- Subsec. (c). Pub. L. 102–558, § 142(2), (3), redesignated tion 4532 of this title. subsec. (d) as (c) and substituted ‘‘$10,000’’ for ‘‘$1,000’’. Functions of President under this chapter relating to Former subsec. (c) redesignated (b). production, conservation, use, control, distribution, Subsec. (d). Pub. L. 102–558, § 142(2), (4), redesignated and allocation of energy, delegated to Secretary of En- subsec. (e) as (d) and struck out second undesignated ergy, see section 4 of Ex. Ord. No. 11790, June 25, 1974, par. which read as follows: ‘‘All information obtained 39 F.R. 23185, set out as a note under section 761 of Title by the Office of Price Stabilization under this section, 15, Commerce and Trade. as amended, and not made public prior to April 30, 1953, shall be deemed confidential and shall not be published § 4556. Jurisdiction of courts; injunctions; venue; or disclosed, either to the public or to another Federal process; effect of termination of provisions agency except the Congress or any duly authorized committee thereof, and except the Department of Jus- (a) Whenever in the judgment of the President tice for such use as it may deem necessary in the per- any person has engaged or is about to engage in formance of its functions, unless the President deter- any acts or practices which constitute or will mines that the withholding thereof is contrary to the constitute a violation of any provision of this interests of the national defense, and any person will- fully violating this provision shall, upon conviction, be chapter, he may make application to the appro- fined not more than $10,000 or imprisoned for not more priate court for an order enjoining such acts or than one year, or both.’’ Former subsec. (d) redesig- practices, or for an order enforcing compliance nated (c). with such provision, and upon a showing by the Subsecs. (e), (f). Pub. L. 102–558, § 142(2), (5), redesig- President that such person has engaged or is nated subsec. (f) as (e) and substituted ‘‘subpoenaed’’ about to engage in any such acts or practices a for ‘‘subpenaed’’. Former subsec. (e) redesignated (d). permanent or temporary injunction, restraining 1970—Subsec. (b). Pub. L. 91–452 struck out subsec. (b) order, or other order, with or without such in- which related to immunity from prosecution of any natural person compelled to testify or produce evi- junction or restraining order, shall be granted dence, documentary or otherwise, after claiming his without bond. privilege against self-incrimination, and that any such (b) The district courts of the United States immunity granted would not be construed to vest in and the United States courts of any Territory or any individual any right to priorities assistance, to the other place subject to the jurisdiction of the allocation of materials, or to any other benefit within United States shall have jurisdiction of viola- the power of the President to grant under sections 4501 tions of this chapter or any rule, regulation, to 4564 of this title. order, or subpena thereunder, and of all civil ac- 1953—Subsec. (e). Act June 30, 1953, added second par. 1952—Subsec. (f). Act June 30, 1952, added subsec. (f). tions under this chapter to enforce any liability 1951—Subsec. (a). Act July 31, 1951, made it clear that or duty created by, or to enjoin any violation of, President has authority to administer oaths and affir- this chapter or any rule, regulation, order, or mations. subpena thereunder. Any criminal proceeding on account of any such violation may be brought in any district in which any act, failure to act, or Statutory Notes and Related Subsidiaries transaction constituting the violation occurred. EFFECTIVE DATE OF 1992 AMENDMENT Any such civil action may be brought in any such district or in the district in which the de- Amendment by Pub. L. 102–558 deemed to have be- fendant resides or transacts business. Process in come effective Mar. 1, 1992, see section 304 of Pub. L. such cases, criminal or civil, may be served in 102–558, set out as a note under section 4502 of this title. any district wherein the defendant resides or EFFECTIVE DATE OF 1970 AMENDMENT transacts business or wherever the defendant may be found; the subpena for witnesses who are Amendment by Pub. L. 91–452 effective on sixtieth required to attend a court in any district in such day following Oct. 15, 1970, and not to affect any immu- case may run into any other district. The termi- nity to which any individual is entitled under this sec- tion by reason of any testimony given before sixtieth nation of the authority granted in any sub- day following Oct. 15, 1970, see section 260 of Pub. L. chapter or section of this chapter, or of any rule, 91–452, set out as an Effective Date; Savings Provision regulation, or order issued thereunder, shall not note under section 6001 of Title 18, Crimes and Criminal operate to defeat any suit, action, or prosecu- Procedure. tion, whether theretofore or thereafter com-

§ 4557 TITLE 50—WAR AND NATIONAL DEFENSE Page 1106 menced, with respect to any right, liability, or for which materials or facilities are allocated offense incurred or committed prior to the ter- under subchapter I of this chapter or under any mination date of such subchapter or of such rule, regulation, or order issued thereunder, by rule, regulation, or order. No costs shall be as- charging higher prices or by imposing different sessed against the United States in any pro- terms and conditions for such orders or con- ceeding under this chapter. All litigation arising tracts than for other generally comparable or- under this chapter or the regulations promul- ders or contracts, or in any other manner. gated thereunder shall be under the supervision (Sept. 8, 1950, ch. 932, title VII, § 707, 64 Stat. 818; and control of the Attorney General. June 30, 1952, ch. 530, title I, § 118, 66 Stat. 306.) (Sept. 8, 1950, ch. 932, title VII, § 706, 64 Stat. 817; July 31, 1951, ch. 275, title I, § 109(e), 65 Stat. 139.) Editorial Notes TERMINATION OF SECTION REFERENCES IN TEXT For termination of section, see section 4564(a) This chapter, referred to in text, was in the original of this title. ‘‘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 Editorial Notes classification of this Act to the Code, see section 4501 REFERENCES IN TEXT of this title and Tables. This chapter, referred to in text, was in the original CODIFICATION ‘‘this Act’’, meaning act Sept. 8, 1950, ch. 932, 64 Stat. Section was formerly classified to section 2157 of the 798, known as the Defense Production Act of 1950, which former Appendix to this title prior to editorial reclassi- is classified principally to this chapter. For complete fication and renumbering as this section. classification of this Act to the Code, see section 4501 of this title and Tables. AMENDMENTS AMENDMENTS 1952—Act June 30, 1952, in first sentence struck out ‘‘his’’ before ‘‘compliance with’’. 1951—Subsec. (a). Act July 31, 1951, broadened relief a court may grant when Government seeks to enjoin vio- § 4558. Voluntary agreements and plans of action lations. for preparedness programs and expansion of production capacity and supply Executive Documents (a) Immunity from civil and criminal liability or DELEGATION OF FUNCTIONS defense to action under antitrust laws; ex- Authority of President to implement the Defense ceptions Production Act of 1950 (this chapter) in this sub- Except as specifically provided in subsection chapter— (j) of this section, no provision of this chapter (1) with respect to hoarding of health and medical resources necessary to respond to the spread of shall be deemed to convey to any person any im- COVID–19 within the United States delegated to Sec- munity from civil or criminal liability, or to retary of Health and Human Services, see section create defenses to actions, under the antitrust 2(a)(ii) of Ex. Ord. 13910, Mar. 23, 2020, 85 F.R. 17001, laws. set out as a note under section 4512 of this title; (b) Definitions (2) with respect to responding to the spread of COVID–19 within the United States delegated to Sec- For purposes of this chapter— retary of Health and Human Services and Secretary (1) Antitrust laws of Homeland Security, see section 2(a) of Ex. Ord. No. 13911, Mar. 27, 2020, 85 F.R. 18403, set out as a note The term ‘‘antitrust laws’’ has the meaning under section 4511 of this title; and given to such term in subsection (a) of section (3) in addition to the delegation of authority in Ex. 12 of title 15, except that such term includes Ord. No. 13911, delegated to Chief Executive Officer of section 45 of title 15 to the extent that such the United States International Development Fi- section 45 applies to unfair methods of com- nance Corporation, see section 2 of Ex. Ord. No. 13922, petition. May 14, 2020, 85 F.R. 30583, set out as a note under sec- tion 4532 of this title. (2) Plan of action Functions of President under this chapter relating to The term ‘‘plan of action’’ means any of 1 or production, conservation, use, control, distribution, more documented methods adopted by partici- and allocation of energy, delegated to Secretary of En- pants in an existing voluntary agreement to 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 implement that agreement. 15, Commerce and Trade. (c) Prerequisites for agreements and plans of ac- tion; delegation of authority to Presidential

§ 4557. Liability for compliance with invalid reg- designees ulations; discrimination against orders or contracts affected by priorities or allocations (1) Upon finding that conditions exist which may pose a direct threat to the national defense No person shall be held liable for damages or or its preparedness programs, the President may penalties for any act or failure to act resulting consult with representatives of industry, busi- directly or indirectly from compliance with a ness, financing, agriculture, labor, and other in- rule, regulation, or order issued pursuant to this terests in order to provide for the making by chapter, notwithstanding that any such rule, such persons, with the approval of the President, regulation, or order shall thereafter be declared of voluntary agreements and plans of action to by judicial or other competent authority to be help provide for the national defense. invalid. No person shall discriminate against or- (2) The authority granted to the President in ders or contracts to which priority is assigned or paragraph (1) and subsection (d) may be dele- Page 1107 TITLE 50—WAR AND NATIONAL DEFENSE § 4558 gated by him (A) to individuals who are ap- (e) Rules; promulgation by Presidential des- pointed by and with the advice and consent of ignees; consultation by Attorney General the Senate, or are holding offices to which they with Chairman of Federal Trade Commis- have been appointed by and with the advice and sion; approval of Attorney General; proce- consent of the Senate, (B) upon the condition dures; incorporation of standards and proce- that such individuals consult with the Attorney dures for development of agreements and General and with the Federal Trade Commission plans of action not less than ten days before consulting with (1) The individual or individuals referred to in any persons under paragraph (1), and (C) upon subsection (c)(2) shall, after approval of the At- the condition that such individuals obtain the torney General, after consultation by the Attor- prior approval of the Attorney General, after ney General with the Chairman of the Federal Trade Commission, promulgate rules, in accord- consultation by the Attorney General with the ance with section 553 of title 5, incorporating Federal Trade Commission, to consult under standards and procedures by which voluntary paragraph (1). agreements and plans of action may be devel- (3) Upon a determination by the President, on oped and carried out. a nondelegable basis, that a specific voluntary (2) In addition to the requirements of section agreement or plan of action is necessary to meet 553 of title 5— national defense requirements resulting from an (A) general notice of the proposed rule- event that degrades or destroys critical infra- making referred to in paragraph (1) shall be structure— published in the Federal Register, and such notice shall include— (A) an individual that has been delegated au- (i) a statement of the time, place, and na- thority under paragraph (1) with respect to ture of the proposed rulemaking pro- such agreement or plan shall not be required ceedings; to consult with the Attorney General or the (ii) reference to the legal authority under Federal Trade Commission under paragraph which the rule is being proposed; and (2)(B); and (iii) either the terms of substance of the proposed rule or a description of the subjects (B) the President shall publish a rule in ac- and issues involved; cordance with subsection (e)(2)(B) and publish notice in accordance with subsection (e)(3)(B) (B) the required publication of a rule shall with respect to such agreement or plan as soon be made not less than thirty days before its ef- fective date; and as is practicable under the circumstances. (C) the individual or individuals referred to in paragraph (1) shall give interested persons (d) Advisory committees; establishment; applica- the right to petition for the issuance, amend- ble provisions; membership; notice and par- ment, or repeal of a rule. ticipation in meetings; verbatim transcript; availability to public (3) The rules promulgated pursuant to this subsection incorporating standards and proce- (1) To achieve the objectives of subsection dures by which voluntary agreements may be (c)(1) of this section, the President or any indi- developed shall provide, among other things, vidual designated pursuant to subsection (c)(2) that— may provide for the establishment of such advi- (A) such agreements shall be developed at sory committees as he determines are necessary. meetings which include— (i) the Attorney General or his delegate, In addition to the requirements specified in this (ii) the Chairman of the Federal Trade section and except as provided in subsection (n), Commission or his delegate, and any such advisory committee shall be subject to (iii) an individual designated by the Presi- the provisions of chapter 10 of title 5, whether or dent in subsection (c)(2) or his delegate, not such chapter or any of its provisions expire and which are chaired by the individual re- or terminate during the term of this chapter or ferred to in clause (iii); of such committees, and in all cases such advi- (B) at least seven days prior to any such sory committees shall be chaired by a Federal meeting, notice of the time, place, and nature employee (other than an individual employed of the meeting shall be published in the Fed- pursuant to section 3109 of title 5) and shall in- eral Register; clude representatives of the public. The Attor- (C) interested persons may submit written ney General and the Federal Trade Commission data and views concerning the proposed vol- shall have adequate advance notice of any meet- untary agreement, with or without oppor- ing and may have an official representative at- tunity for oral presentation; tend and participate in any such meeting. (D) interested persons may attend any such meeting unless the individual designated by (2) A full and complete verbatim transcript the President in subsection (c)(2) finds that shall be kept of such advisory committee meet- the matter or matters to be discussed at such ings, and shall be taken and deposited, together meeting falls within the purview of matters with any agreement resulting therefrom, with described in section 552b(c) of title 5; the Attorney General and the Federal Trade (E) a full and verbatim transcript shall be Commission. Such transcript and agreement made of any such meeting and shall be trans- shall be made available for public inspection and mitted by the chairman of the meeting to the copying, subject to the provisions of paragraphs Attorney General and to the Chairman of the (1), (3), and (4) of section 552(b) of title 5. Federal Trade Commission;

§ 4558 TITLE 50—WAR AND NATIONAL DEFENSE Page 1108 (F) any voluntary agreement resulting from (1) for the maintenance, by participants in the meetings shall be transmitted by the any voluntary agreement or plan of action, of chairman of the meetings to the Attorney documents, minutes of meetings, transcripts, General, the Chairman of the Federal Trade records, and other data related to the carrying Commission, and the Congress; and out of any voluntary agreement or plan of ac- (G) any transcript referred to in subpara- tion; graph (E) and any voluntary agreement re- (2) that participants in any voluntary agree- ferred to in subparagraph (F) shall be avail- ment or plan of action agree, in writing, to able for public inspection and copying, subject make available to the individual designated by to paragraphs (1), (3), and (4) of section 552(b) the President in subsection (c)(2) to admin- of title 5. ister the voluntary agreement or plan of ac- (f) Commencement of agreements and plans of tion, the Attorney General and the Chairman action; expiration date; extensions of the Federal Trade Commission for inspec- (1) A voluntary agreement or plan of action tion and copying at reasonable times and upon may not become effective unless and until— reasonable notice any item maintained pursu- (A) the individual referred to in subsection ant to paragraph (1); (c)(2) who is to administer the agreement or (3) that any item made available to the indi- plan approves it and certifies, in writing, that vidual designated by the President in sub- the agreement or plan is necessary to carry section (c)(2) to administer the voluntary out the purposes of subsection (c)(1) and sub- agreement or plan of action, the Attorney mits a copy of such agreement or plan to the General, or the Chairman of the Federal Trade Congress; and Commission pursuant to paragraph (2) shall be (B) the Attorney General (after consultation available from such individual, the Attorney with the Chairman of the Federal Trade Com- General, or the Chairman of the Federal Trade mission) finds, in writing, that such purpose Commission, as the case may be, for public in- may not reasonably be achieved through a vol- spection and copying, subject to paragraph (1), untary agreement or plan of action having less (3), or (4) of section 552(b) of title 5; anticompetitive effects or without any vol- (4) that the individual designated by the untary agreement or plan of action and pub- President in subsection (c)(2) to administer lishes such finding in the Federal Register. the voluntary agreement or plan of action, the (2) Each voluntary agreement or plan of action Attorney General, and the Chairman of the which becomes effective under paragraph (1) Federal Trade Commission, or their delegates, shall expire 5 years after the date it becomes ef- may attend meetings to carry out any vol- fective (and at 5-year intervals thereafter, as the untary agreement or plan of action; case may be), unless (immediately prior to such (5) that a Federal employee (other than an expiration date) the individual referred to in individual employed pursuant to section 3109 subsection (c)(2) who administers the agreement of title 5) shall attend meetings to carry out or plan and the Attorney General (after con- any voluntary agreement or plan of action; (6) that participants in any voluntary agree- sultation with the Chairman of the Federal ment or plan of action provide the individual Trade Commission) make the certification or finding, as the case may be, described in para- designated by the President in subsection graph (1) with respect to such voluntary agree- (c)(2) to administer the voluntary agreement ment or plan of action and publish such certifi- or plan of action, the Attorney General, and cation or finding in the Federal Register, in the Chairman of the Federal Trade Commis- which case, the voluntary agreement or plan of sion with adequate prior notice of the time, action may be extended for an additional period place, and nature of any meeting to be held to of 5 years. carry out the voluntary agreement or plan of action; (g) Monitoring of agreements and plans of action (7) for the attendance by interested persons by Attorney General and Chairman of Fed- of any meeting held to carry out any vol- eral Trade Commission untary agreement or plan of action, unless the The Attorney General and the Chairman of the individual designated by the President in sub- Federal Trade Commission shall monitor the section (c)(2) to administer the voluntary carrying out of any voluntary agreement or plan agreement or plan of action finds that the of action to assure— matter or matters to be discussed at such (1) that the agreement or plan is carrying meeting falls within the purview of matters out the purposes of subsection (c)(1); described in section 552b(c) of title 5; (2) that the agreement or plan is being car- (8) that the individual designated by the ried out under rules promulgated pursuant to President in subsection (c)(2) to administer subsection (e); the voluntary agreement or plan of action has (3) that the participants are acting in ac- published in the Federal Register prior notifi- cordance with the terms of the agreement or cation of the time, place, and nature of any plan; and meeting held to carry out any voluntary (4) the protection and fostering of competi- agreement or plan of action, unless he finds tion and the prevention of anticompetitive that the matter or matters to be discussed at practices and effects. such meeting falls within the purview of mat- (h) Required provisions of rules for implementa- ters described in section 552b(c) of title 5, in tion of agreements and plans of action which case, notification of the time, place, and The rules promulgated under subsection (e) nature of such meeting shall be published in with respect to the carrying out of voluntary the Federal Register within ten days of the agreements and plans of action shall provide— date of such meeting; Page 1109 TITLE 50—WAR AND NATIONAL DEFENSE § 4558 (9) that— (2) Scope of defense (A) the Attorney General (after consulta- Except in the case of actions taken to de- tion with the Chairman of the Federal Trade velop a voluntary agreement or plan of action, Commission and the individual designated the defense established in paragraph (1) shall by the President in subsection (c)(2) to ad- be available only if and to the extent that the minister a voluntary agreement or plan of person asserting the defense demonstrates action), or that the action was specified in, or was within (B) the individual designated by the Presi- the scope of, an approved voluntary agreement dent in subsection (c)(2) to administer a vol- initiated by the President and approved in ac- untary agreement or plan of action (after cordance with this section or a plan of action consultation with the Attorney General and adopted under any such agreement and ap- the Chairman of the Federal Trade Commis- proved in accordance with this section. The sion), defense established in paragraph (1) shall not may terminate or modify, in writing, the vol- be available unless the President or the Presi- untary agreement or plan of action at any dent’s designee has authorized and actively su- time, and that effective, immediately upon pervised the voluntary agreement or plan of such termination or modification, any anti- action. trust immunity conferred upon the partici- (3) Burden of persuasion pants in the voluntary agreement or plan of Any person raising the defense established action by subsection (j) shall not apply to any in paragraph (1) shall have the burden of proof act or omission occurring after the time of to establish the elements of the defense. such termination or modification; (10) that participants in any voluntary (4) Exception for actions taken to violate the agreement or plan of action be reasonably rep- antitrust laws resentative of the appropriate industry or seg- The defense established in paragraph (1) ment of such industry; and shall not be available if the person against (11) that the individual designated by the whom the defense is asserted shows that the President in subsection (c)(2) to administer action was taken for the purpose of violating the voluntary agreement or plan of action the antitrust laws. shall provide prior written notification of the (k) Surveys and studies by Attorney General and time, place, and nature of any meeting to Federal Trade Commission; content; annual carry out a voluntary agreement or plan of ac- report to Congress and President by Attor- tion to the Attorney General, the Chairman of ney General the Federal Trade Commission and the Con- gress. The Attorney General and the Federal Trade Commission shall each make surveys for the (i) Rules; promulgation by Attorney General and purpose of determining any factors which may Chairman of Federal Trade Commission tend to eliminate competition, create or The Attorney General and the Chairman of the strengthen monopolies, injure small business, or Federal Trade Commission shall each promul- otherwise promote undue concentration of eco- gate such rules as each deems necessary or ap- nomic power in the course of the administration propriate to carry out his responsibility under of this section. Such surveys shall include stud- this section. ies of the voluntary agreements and plans of ac- (j) Defenses tion authorized by this section. The Attorney General shall (after consultation with the Fed- (1) In general eral Trade Commission) submit to the Congress Subject to paragraph (4), there shall be and the President at least once every year re- available as a defense for any person to any ports setting forth the results of such studies of civil or criminal action brought under the voluntary agreements and plans of action. antitrust laws (or any similar law of any (l) Annual report to Congress and President by State) with respect to any action taken to de- Presidential designees; contents velop or carry out any voluntary agreement or plan of action under this section that— The individual or individuals designated by (A) such action was taken— the President in subsection (c)(2) shall submit to (i) in the course of developing a vol- the Congress and the President at least once untary agreement initiated by the Presi- every year reports describing each voluntary dent or a plan of action adopted under any agreement or plan of action in effect and its such agreement; or contribution to achievement of the purpose of (ii) to carry out a voluntary agreement subsection (c)(1). initiated by the President and approved in (m) Jurisdiction to enjoin statutory exemption or accordance with this section or a plan of suspension and order for production of tran- action adopted under any such agreement, scripts, etc.; procedures and On complaint, the United States District (B) such person— Court for the District of Columbia shall have ju- (i) complied with the requirements of risdiction to enjoin any exemption or suspension this section and any regulation prescribed pursuant to subsections (d)(2), (e)(3)(D) and (G), under this section; and and (h)(3), (7), and (8), and to order the produc- (ii) acted in accordance with the terms tion of transcripts, agreements, items, or other of the voluntary agreement or plan of ac- records maintained pursuant to this section by tion. the Attorney General, the Federal Trade Com-

§ 4558 TITLE 50—WAR AND NATIONAL DEFENSE Page 1110 mission or any individual designated under sub- ‘‘the Federal Advisory Committee Act (5 U.S.C. App.)’’ section (c)(2), where the court determines that in introductory provisions. 2009—Subsec. (c)(1). Pub. L. 111–67, § 9(1)(A), sub- such transcripts, agreements, items, or other stituted ‘‘national defense.’’ for ‘‘defense of the United records have been improperly withheld from the States through the development of preparedness pro- complainant. In such a case the court shall de- grams and the expansion of productive capacity and termine the matter de novo, and may examine supply beyond levels needed to meet essential civilian the contents of such transcripts, agreements, demand in the United States.’’ items, or other records in camera to determine Subsec. (c)(3). Pub. L. 111–67, § 9(1)(B), added par. (3). whether such transcripts, agreements, items, or Subsec. (f)(2). Pub. L. 111–67, § 9(2), substituted ‘‘5 years’’ for ‘‘two years’’ in two places and substituted other records or any parts thereof shall be with- ‘‘5-year’’ for ‘‘two-year’’. held under any of the exemption or suspension Subsec. (n). Pub. L. 111–67, § 9(3), added subsec. (n) and provisions referred to in this subsection, and the struck out former subsec. (n). Prior to amendment, burden is on the Attorney General, the Federal text read as follows: ‘‘Notwithstanding any other provi- Trade Commission, or such designated indi- sion of law, any activity conducted under a voluntary vidual, as the case may be, to sustain its action. agreement or plan of action approved pursuant to this section, when conducted in compliance with the re- (n) Exemption from chapter 10 of title 5 quirements of this section, any regulation prescribed Notwithstanding any other provision of law, under this subsection, and the provisions of the vol- chapter 10 of title 5 and any other provision of untary agreement or plan of action, shall be exempt Federal law relating to advisory committees from the Federal Advisory Committee Act and any other Federal law and any Federal regulation relating shall not apply to— to advisory committees.’’ (1) the consultations referred to in sub- 1991—Subsec. (a). Pub. L. 102–99, § 5(1), struck out ref- section (c)(1); or erence to section 708A(j) of act Sept. 8, 1950, ch. 932, (2) any activity conducted under a voluntary after reference to subsec. (j) of this section. agreement or plan of action approved pursuant Subsec. (b). Pub. L. 102–99, § 5(2), added subsec. (b) and to this section that complies with the require- struck out former subsec. (b) which defined the term ments of this section. ‘‘antitrust laws’’ as used in this section and in section 708A of act Sept. 8, 1950, ch. 932. (o) Preemption of contract law in emergencies Subsec. (c)(1). Pub. L. 102–99, § 5(3), inserted ‘‘and In any action in any Federal or State court for plans of action’’ after ‘‘voluntary agreements’’ and struck out provisions relating to exception as provided breach of contract, there shall be available as a in section 708A of act Sept. 8, 1950, ch. 932. defense that the alleged breach of contract was Subsec. (c)(2). Pub. L. 102–99, § 5(4), struck out at end caused predominantly by action taken during an ‘‘For the purpose of carrying out the objectives of sub- emergency to carry out a voluntary agreement chapter I of this chapter, the authority granted in or plan of action authorized and approved in ac- paragraph (1) of this subsection shall not be delegated cordance with this section. Such defense shall to more than one individual.’’ not release the party asserting it from any obli- Subsec. (d)(1). Pub. L. 102–99, § 5(5), inserted ‘‘and ex- cept as provided in subsection (n)’’ after ‘‘specified in gation under applicable law to mitigate damages this section’’ and struck out ‘‘, and the meetings of to the greatest extent possible. such committees shall be open to the public’’ after (Sept. 8, 1950, ch. 932, title VII, § 708, 64 Stat. 818; ‘‘representatives of the public’’. Subsec. (d)(2). Pub. L. 102–99, § 5(6), substituted ‘‘para- June 30, 1952, ch. 530, title I, § 116(c), 66 Stat. 305; graphs (1), (3), and (4) of section 552(b)’’ for ‘‘section Aug. 9, 1955, ch. 655, § 6, 69 Stat. 581; Pub. L. 552(b)(1) and (b)(3)’’. 87–305, § 5(b), Sept. 26, 1961, 75 Stat. 667; Pub. L. Subsec. (e)(1). Pub. L. 102–99, § 5(7), substituted ‘‘vol- 91–151, title I, § 9, Dec. 23, 1969, 83 Stat. 376; Pub. untary agreements and plans of action’’ for ‘‘voluntary L. 94–152, § 3, Dec. 16, 1975, 89 Stat. 810; Pub. L. agreements’’. 102–99, § 5, Aug. 17, 1991, 105 Stat. 487; Pub. L. Subsec. (e)(3)(D). Pub. L. 102–99, § 5(8), substituted 111–67, § 9, Sept. 30, 2009, 123 Stat. 2018; Pub. L. ‘‘section 552b(c)’’ for ‘‘subsection (b)(1) or (b)(3) of sec- tion 552’’. 117–286, § 4(a)(321), (322), Dec. 27, 2022, 136 Stat. Subsec. (e)(3)(F). Pub. L. 102–99, § 5(9), inserted ref- 4341.) erence to Congress. Subsec. (e)(3)(G). Pub. L. 102–99, § 5(10), substituted Editorial Notes ‘‘paragraphs (1), (3), and (4) of section 552(b)’’ for ‘‘sub- sections (b)(1) and (b)(3) of section 552’’. REFERENCES IN TEXT Subsec. (f)(1). Pub. L. 102–99, § 5(11)(A), inserted ‘‘or This chapter, referred to in subsecs. (a), (b), and plan of action’’ after ‘‘voluntary agreement’’. (d)(1), was in the original ‘‘this Act’’, meaning act Sept. Subsec. (f)(1)(A). Pub. L. 102–99, § 5(12), inserted ‘‘and 8, 1950, ch. 932, 64 Stat. 798, known as the Defense Pro- submits a copy of such agreement or plan to the Con- duction Act of 1950, which is classified principally to gress’’ after ‘‘subsection (c)(1)’’. this chapter. For complete classification of this Act to Pub. L. 102–99, § 5(11)(B), inserted ‘‘or plan’’ after ‘‘the the Code, see section 4501 of this title and Tables. agreement’’ wherever appearing. Subsec. (f)(1)(B). Pub. L. 102–99, § 5(13), inserted before CODIFICATION period ‘‘and publishes such finding in the Federal Reg- ister’’. Section was formerly classified to section 2158 of the Pub. L. 102–99, § 5(11)(A), inserted ‘‘or plan of action’’ former Appendix to this title prior to editorial reclassi- after ‘‘voluntary agreement’’ wherever appearing. fication and renumbering as this section. Subsec. (f)(2). Pub. L. 102–99, § 5(14), inserted ‘‘and AMENDMENTS publish such certification or finding in the Federal Register’’ before ‘‘, in which case’’. 2022—Subsec. (d)(1). Pub. L. 117–286, § 4(a)(321), sub- Pub. L. 102–99, § 5(11), inserted ‘‘or plan’’ after ‘‘the stituted ‘‘chapter 10 of title 5, whether or not such agreement’’, and ‘‘or plan of action’’ after ‘‘voluntary chapter’’ for ‘‘the Federal Advisory Committee Act, agreement’’ wherever appearing. whether or not such Act’’. Subsec. (g). Pub. L. 102–99, § 5(11)(A), inserted ‘‘or plan Subsec. (n). Pub. L. 117–286, § 4(a)(322), substituted of action’’ after ‘‘voluntary agreement’’. ‘‘chapter 10 of title 5’’ for ‘‘Advisory Committee Act Subsec. (g)(1) to (3). Pub. L. 102–99, § 5(11)(B), inserted provisions’’ in heading and ‘‘chapter 10 of title 5’’ for ‘‘or plan’’ after ‘‘the agreement’’. Page 1111 TITLE 50—WAR AND NATIONAL DEFENSE § 4558 Subsec. (h). Pub. L. 102–99, § 5(15)(A), inserted ‘‘and ments, procedures for promulgation and required provi- plans of action’’ after ‘‘voluntary agreements’’. sions, for provisions relating to monitoring by Attor- Subsec. (h)(1), (2). Pub. L. 102–99, § 5(15)(B), inserted ney General of agreements in force and reports to ‘‘or plan of action’’ after ‘‘voluntary agreement’’ wher- President and Congress. ever appearing. Subsecs. (f) to (m). Pub. L. 94–152 added subsecs. (f) to Subsec. (h)(3). Pub. L. 102–99, § 5(16), substituted (m). ‘‘paragraph (1), (3), or (4) of section 552(b)’’ for ‘‘sub- 1969—Subsec. (b). Pub. L. 91–151, § 9(a), struck out pro- sections (b)(1) and (b)(3) of section 552’’. vision under which exemption from prohibitions of Pub. L. 102–99, § 5(15)(B), inserted ‘‘or plan of action’’ antitrust laws and application of Federal Trade Com- after ‘‘voluntary agreement’’. mission Act had been limited to only those voluntary Subsec. (h)(4) to (6). Pub. L. 102–99, § 5(15)(B), inserted agreements covering military equipment purchased by ‘‘or plan of action’’ after ‘‘voluntary agreement’’ wher- Defense Department. ever appearing. Subsec. (f). Pub. L. 91–151, § 9(b), struck out subsec. (f) Subsec. (h)(7), (8). Pub. L. 102–99, § 5(15)(B), (17), in- which prohibited approval of voluntary credit control serted ‘‘or plan of action’’ after ‘‘voluntary agreement’’ agreements under this section after June 30, 1952. wherever appearing and substituted ‘‘section 552b(c)’’ 1961—Subsec. (e). Pub. L. 87–305 struck out ‘‘, and the for ‘‘subsection (b)(1) or (b)(3) of section 552’’. reports hereafter required,’’ after ‘‘Such surveys’’ and Subsec. (h)(9), (10). Pub. L. 102–99, § 5(15)(B), inserted ‘‘within ninety days after the approval of this chapter, ‘‘or plan of action’’ after ‘‘voluntary agreement’’ wher- and’’ after ‘‘President’’ and substituted ‘‘studies of vol- ever appearing. untary agreements and programs authorized by this Subsec. (h)(11). Pub. L. 102–99, § 5(15)(C)–(E), added section’’ for ‘‘such surveys and including such rec- par. (11). ommendations as he may deem desirable’’. Subsec. (j). Pub. L. 102–99, § 5(18), added subsec. (j) and 1955—Subsec. (b). Act Aug. 9, 1955, § 6(1), inserted pro- struck out former subsec. (j) which read as follows: viso. ‘‘There shall be available as a defense for any person to Subsec. (d). Act Aug. 9, 1955, § 6(2), exempted subse- any civil or criminal action brought for violation of the quent acts or omissions to act upon withdrawal by At- antitrust laws (or any similar law of any State) with torney General of his approval of voluntary agreement respect to any act or omission to act to develop or or program. carry out any voluntary agreement under this section Subsec. (e). Act Aug. 9, 1955, § 6(3), (4), included stud- that— ies of voluntary agreements and programs in surveys ‘‘(1) such act or omission to act was taken in good and reports, and required Attorney General to report to faith by that person— Congress at least once every three months. ‘‘(A) in the course of developing a voluntary 1952—Subsec. (f). Act June 30, 1952, added subsec. (f). agreement under this section, or ‘‘(B) to carry out a voluntary agreement under Statutory Notes and Related Subsidiaries this section; and ‘‘(2) such person fully complied with this section EFFECTIVE DATE OF 1991 AMENDMENT and the rules promulgated hereunder, and acted in accordance with the terms of the voluntary agree- Amendment by Pub. L. 102–99 effective Oct. 20, 1990, ment.’’ see section 7 of Pub. L. 102–99, set out as a note under Subsec. (k). Pub. L. 102–99, § 5(19), inserted ‘‘and plans section 4511 of this title. of action’’ after ‘‘voluntary agreements’’ wherever ap- EFFECTIVE DATE OF 1975 AMENDMENT pearing. Subsec. (l). Pub. L. 102–99, § 5(20), inserted ‘‘or plan of Pub. L. 94–152, § 9, Dec. 16, 1975, 89 Stat. 821, as amend- action’’ after ‘‘voluntary agreement’’. ed by Pub. L. 94–153, Dec. 16, 1975, 89 Stat. 822; Pub. L. Subsecs. (n), (o). Pub. L. 102–99, § 5(21), added subsecs. 94–220, Feb. 27, 1976, 90 Stat. 195, provided that: ‘‘This (n) and (o). Act and the amendments made by it [see Tables for 1975—Subsec. (a). Pub. L. 94–152 substituted provi- classification] shall take effect at the close of Novem- sions relating to immunity from civil and criminal li- ber 30, 1975, except that the amendment made by sec- ability under the antitrust laws for provisions author- tion 3 [amending this section] shall take effect upon izing President to approve voluntary programs and the one hundred and twentieth day beginning after the agreements under this chapter. date of its enactment [Dec. 16, 1975].’’ Subsec. (b). Pub. L. 94–152 substituted definition of EFFECTIVE DATE OF 1955 AMENDMENT ‘‘antitrust laws’’ for provisions exempting under cer- tain conditions acts or omissions to act pursuant to Amendment by act Aug. 9, 1955, effective as of the this chapter from the antitrust laws or the Federal close of July 31, 1955, see section 11 of act Aug. 9, 1955, Trade Commission Act. set out as a note under section 4502 of this title. Subsec. (c). Pub. L. 94–152 restructured subsec. (c) CONTINUATION IN EFFECT OF EXISTING VOLUNTARY into pars. (1) and (2), and, as so restructured, inserted AGREEMENTS provisions of par. (1) authorizing President to consult with leaders of industry, finance, agriculture and labor Pub. L. 94–152, § 4, Dec. 16, 1975, 89 Stat. 820, provided with a view to developing voluntary agreements to help that: provide for the defense of the United States whenever ‘‘(a) Any voluntary agreement— he finds conditions exist which pose a threat to the na- ‘‘(1) entered into under section 708 of the Defense tional defense or preparedness programs and trans- Production Act of 1950 [50 U.S.C. 4558] prior to the ef- ferred existing provisions to par. (2), and, as trans- fective date of this Act [see Effective Date of 1975 ferred, substituted provisions which authorized Presi- Amendment note above], and dent to delegate authority granted to him in par. (1) of ‘‘(2) in effect immediately prior to such date may this subsection and under subsec. (d) of this section, for continue in effect (except as otherwise provided in provisions authorizing delegation of authority of sub- section 708A(o) of the Defense Production Act of 1950, sec. (b) of this section. as amended by this Act) and shall be carried out in Subsec. (d). Pub. L. 94–152 substituted provisions re- accordance with such section 708 [50 U.S.C. 4558], as lating to establishment, membership, meetings, tran- amended by this Act, and such section 708A. scripts, etc. of advisory committees, for provisions re- ‘‘(b) No provision of the Defense Production Act of lating to application of this section to acts or omis- 1950 [50 U.S.C. 4501 et seq.], as amended by this Act, sions to act after withdrawal of any request or finding shall be construed as granting immunity for, nor as under this section or withdrawal of approval of Attor- limiting or in any way affecting any remedy or penalty ney General. which may result from any legal action or proceeding Subsec. (e). Pub. L. 94–152 substituted provisions re- arising from, any acts or practices which occurred (1) lating to promulgation of rules for voluntary agree- prior to the date of enactment of this Act [Dec. 16,

§ 4559 TITLE 50—WAR AND NATIONAL DEFENSE Page 1112 1975], (2) outside the scope and purpose or not in com- tunity for public comment shall be provided pliance with the terms and conditions of the Defense for not less than 30 days, consistent with the Production Act of 1950, or (3) subsequent to the expira- requirements of section 553(b) of title 5. tion or repeal of the Defense Production Act of 1950. ‘‘(c) Effective on the date of enactment of this Act (2) Waiver for temporary provisions [Dec. 16, 1975], the immunity conferred by section 708 or The requirements of paragraph (1) may be 708A of the Defense Production Act of 1950, as amended by this Act, shall not apply to any action taken or au- waived, if— thorized to be taken by or under the Emergency Petro- (A) the officer authorized to issue the reg- leum Allocation Act of 1973 [15 U.S.C. 751 et seq.].’’ ulation finds that urgent and compelling cir- [Section 708A of the Defense Production Act of 1950, cumstances make compliance with such re- referred to in section 4 of Pub. L. 94–152, set out above, quirements impracticable; which was classified to section 2158a of the former Ap- (B) the regulation is issued on a temporary pendix to this title, was repealed by Pub. L. 102–99, § 4, basis; and Aug. 17, 1991, 105 Stat. 487.] (C) the publication of such temporary reg- TERMINATION OF ADVISORY COMMITTEES ulation is accompanied by the finding made under subparagraph (A) (and a brief state- Advisory committees in existence on Jan. 5, 1973, to terminate not later than the expiration of the 2-year ment of the reasons for such finding) and an period following Jan. 5, 1973, unless, in the case of a opportunity for public comment is provided committee established by the President or an officer of for not less than 30 days before any regula- the Federal Government, such committee is renewed by tion becomes final. appropriate action prior to the expiration of such 2- (3) Consideration of public comments year period, or in the case of a committee established by the Congress, its duration is otherwise provided by All comments received during the public law. Advisory committees established after Jan. 5, 1973, comment period specified pursuant to para- to terminate not later than the expiration of the 2-year graph (1) or (2) shall be considered and the period beginning on the date of their establishment, publication of the final regulation shall con- unless, in the case of a committee established by the tain written responses to such comments. President or an officer of the Federal Government, such committee is renewed by appropriate action prior to (c) Public comment on procurement regulations the expiration of such 2-year period, or in the case of Any procurement policy, regulation, proce- a committee established by the Congress, its duration is otherwise provided by law. See section 1013 of Title dure, or form (including any amendment or 5, Government Organization and Employees. modification of any such policy, regulation, pro- cedure, or form) issued under this chapter shall Executive Documents be subject to section 1707 of title 41. DELEGATION OF FUNCTIONS (Sept. 8, 1950, ch. 932, title VII, § 709, 64 Stat. 819; Pub. L. 102–558, title I, § 136(a), Oct. 28, 1992, 106 Authority of President under subsecs. (c)(1) and (d) of this section with respect to responding to the spread of Stat. 4216.) COVID–19 within the United States delegated to Sec- TERMINATION OF SECTION retary of Health and Human Services and Secretary of Homeland Security, see section 3 of Ex. Ord. No. 13911, For termination of section, see section 4564(a) Mar. 27, 2020, 85 F.R. 18404, set out as a note under sec- of this title. tion 4511 of this title. Functions conferred upon President under this sec- Editorial Notes tion necessary to effect changes in composition of, or to take other action respecting voluntary agreements REFERENCES IN TEXT and programs relating to, small business production This chapter, referred to in text, was in the original pools approved prior to July 31, 1953, delegated to Ad- ‘‘this Act’’, meaning act Sept. 8, 1950, ch. 932, 64 Stat. ministrator of Small Business Administration by Ex. 798, known as the Defense Production Act of 1950, which Ord. No. 10493, Oct. 14, 1953, 18 F.R. 6583, set out as a is classified principally to this chapter. For complete note under section 640 of Title 15, Commerce and Trade. classification of this Act to the Code, see section 4501 Functions of President under this chapter relating to of this title and Tables. production, conservation, use, control, distribution, and allocation of energy, delegated to Secretary of En- CODIFICATION 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 Section was formerly classified to section 2159 of the 15. former Appendix to this title prior to editorial reclassi- For delegation of authority of President under sub- fication and renumbering as this section. secs. (c) and (d) of this section, see sections 401 and 402 In subsec. (c), ‘‘section 1707 of title 41’’ substituted for of Ex. Ord. No. 13603, Mar. 16, 2012, 77 F.R. 16656, set out ‘‘section 22 of the Office of Federal Procurement Policy as a note under section 4553 of this title. Act’’ on authority of Pub. L. 111–350, § 6(c), Jan. 4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public Con-

§ 4559. Public participation in rulemaking tracts. (a) Exemption from Administrative Procedure AMENDMENTS Act 1992—Pub. L. 102–558 amended section generally. Prior Any regulation issued under this chapter shall to amendment, section read as follows: ‘‘The functions not be subject to sections 551 through 559 of title exercised under this chapter shall be excluded from the operation of the Administrative Procedure Act (60 Stat. 5. 237) except as to the requirements of section 3 thereof. (b) Opportunity for notice and comment Any rule, regulation, or order, or amendment thereto, (1) In general issued under authority of this chapter shall be accom- panied by a statement that in the formulation thereof Except as provided in subsection (c), any there has been consultation with industry representa- regulation issued under this chapter shall be tives, including trade association representatives, and published in the Federal Register and oppor- that consideration has been given to their rec- Page 1113 TITLE 50—WAR AND NATIONAL DEFENSE § 4560 ommendations, or that special circumstances have ren- points any individual under this subsection dered such consultation impracticable or contrary to shall publish a notice of such appointment in the interest of the national defense, but no such rule, the Federal Register, including the name of regulation, or order shall be invalid by reason of any subsequent finding by judicial or other authority that the appointee, the employing department or such a statement is inaccurate.’’ agency, the title of the appointee’s position, and the name of the appointee’s private em- Statutory Notes and Related Subsidiaries ployer. (B) FINANCIAL DISCLOSURE.—Any individual EFFECTIVE DATE OF 1992 AMENDMENT appointed under this subsection who is not re- Pub. L. 102–558, title I, § 136(b), Oct. 28, 1992, 106 Stat. quired to file a financial disclosure report pur- 4217, provided that: ‘‘Section 709 of the Defense Produc- suant to section 13103 of title 5, shall file a tion Act of 1950 (50 U.S.C. App. 2159) [now 50 U.S.C. confidential financial disclosure report pursu- 4559], as amended by subsection (a) of this section, shall not apply to any regulation issued in proposed or final ant to section 13109 of title 5 with the appoint- form on or before the date of enactment of this Act ing department or agency. [Oct. 28, 1992].’’ (6) The Director of the Office of Personnel

§ 4560. Employment of personnel; appointment Management shall carry out a biennial survey of policies; nucleus executive reserve; use of appointments made under this subsection and confidential information by employees; print- shall report his or her findings to the President ing and distribution of reports and make such recommendations as he or she may deem proper. (a) Repealed. June 28, 1955, ch. 189, § 12(c)(1), 69 (7) Persons appointed under the authority of Stat. 180 this subsection may be allowed reimbursement (b) Presidential appointments for travel, subsistence, and other necessary ex- penses incurred by them in carrying out the (1) The President is further authorized, to the functions for which they were appointed in the extent he deems it necessary and appropriate in same manner as persons employed intermit- order to carry out the provisions of this chapter tently in the Federal Government are allowed and subject to such regulations as he may issue, expenses under section 5703 of title 5. to employ persons of outstanding experience and ability without compensation; (c) Employment of experts and consultants (2) The President shall be guided in the exer- The President is authorized, to the extent he cise of the authority provided in this subsection deems it necessary and appropriate in order to by the following policies: carry out the provisions of this chapter to em- (i) So far as possible, operations under this ploy experts and consultants or organizations chapter shall be carried on by full-time, sala- thereof, as authorized by section 3109 of title 5. ried employees of the Government, and ap- Individuals so employed may be compensated at pointments under this authority shall be to rates not in excess of $50 per diem and while advisory or consultative positions only. away from their homes or regular places of busi- (ii) Appointments to positions other than ness they may be allowed transportation and advisory or consultative may be made under not to exceed $15 per diem in lieu of subsistence this authority only when the requirements of and other expenses while so employed. the position are such that the incumbent must (d) Utilization of other services personally possess outstanding experience and ability not obtainable on a full-time, salaried The President may utilize the services of Fed- basis. eral, State, and local agencies and may utilize and establish such regional, local, or other agen- (3) Appointees under this subsection shall, cies, and utilize such voluntary and uncompen- when policy matters are involved, be limited to sated services, as may from time to time be advising appropriate full-time salaried Govern- needed. ment officials who are responsible for making (e) Nucleus executive reserve policy decisions. (4) Appointments under this subsection shall The President is further authorized to provide be supported by written certification by the for the establishment and training of a nucleus head of the employing department or agency— executive reserve for employment in executive (i) that the appointment is necessary and ap- positions in Government during periods of na- propriate in order to carry out the provisions tional defense emergency, as determined by the of this chapter; President. Members of this executive reserve (ii) that the duties of the position to which who are not full-time Government employees the appointment is being made require out- may be allowed transportation and per diem in standing experience and ability; lieu of subsistence, in accordance with title 5 (iii) that the appointee has the outstanding (with respect to individuals serving without pay, experience and ability required by the posi- while away from their homes or regular places tion; and of business), for the purpose of participating in (iv) that the department or agency head has the executive reserve training program. been unable to obtain a person with the quali- (f) Use of confidential information for specula- fications necessary for the position on a full- tion time, salaried basis. Whoever, being an officer or employee of the (5) NOTICE AND FINANCIAL DISCLOSURE REQUIRE- United States or any department or agency MENTS.— thereof (including any Member of the Senate or (A) PUBLIC NOTICE OF APPOINTMENT.—The House of Representatives), receives, by virtue of head of any department or agency who ap- his office or employment, confidential informa-

§ 4560 TITLE 50—WAR AND NATIONAL DEFENSE Page 1114 tion, and (1) uses such information in specu- shall carry out a biennial survey of’’ for ‘‘At least once lating directly or indirectly on any commodity every three months the Director of the Office of Per- exchange, or (2) discloses such information for sonnel Management shall survey’’. Pub. L. 111–67, § 10(1)(C), redesignated par. (7) as (6). the purpose of aiding any other person so to Former par. (6) redesignated (5). speculate, shall be fined not more than $10,000 or Subsec. (b)(7), (8). Pub. L. 111–67, § 10(1)(C), redesig- imprisoned not more than one year, or both. As nated par. (8) as (7). Former par. (7) redesignated (6). used in this section, the term ‘‘speculate’’ shall Subsec. (c). Pub. L. 111–67, § 10(2), struck out at end not include a legitimate hedging transaction, or ‘‘The President is authorized to provide by regulation a purchase or sale which is accompanied by ac- for the exemption of such persons from the operation of tual delivery of the commodity. sections 281, 283, 284, 434, and 1914 of title 18 and section 99 of title 5.’’ (g) Printing and distribution of reports Subsec. (d). Pub. L. 111–67, § 10(3), substituted ‘‘need- The President, when he deems such action ed.’’ for ‘‘needed; and he is authorized to provide by regulation for the exemption of persons whose services necessary, may make provision for the printing are utilized under this subsection from the operation of and distribution of reports, in such number and sections 281, 283, 284, 434, and 1914 of title 18 and section in such manner as he deems appropriate, con- 99 of title 5.’’ cerning the actions taken to carry out the ob- Subsec. (e). Pub. L. 111–67, § 10(4), substituted ‘‘na- jectives of this chapter. tional defense emergency, as determined by the Presi- dent’’ for ‘‘emergency’’ and struck out at end ‘‘The (Sept. 8, 1950, ch. 932, title VII, § 710, 64 Stat. 819; President is authorized to provide by regulation for the July 31, 1951, ch. 275, title I, § 109(f), 65 Stat. 139; exemption of such persons who are not full-time Gov- June 28, 1955, ch. 189, § 12(c)(1), 69 Stat. 180; Aug. ernment employees from the operation of sections 281, 9, 1955, ch. 655, §§ 7, 8, 69 Stat. 582, 583; Pub. L. 283, 284, 434, and 1914 of title 18 and section 99 of title 94–152, § 5, Dec. 16, 1975, 89 Stat. 820; Pub. L. 5.’’ 102–558, title I, § 143, Oct. 28, 1992, 106 Stat. 4217; 1992—Subsec. (b)(6). Pub. L. 102–558, § 143(a), amended par. (6) generally. Prior to amendment, par. (6) read as Pub. L. 111–67, § 10, Sept. 30, 2009, 123 Stat. 2019; follows: ‘‘The heads of the departments or agencies Pub. L. 117–286, § 4(c)(47), Dec. 27, 2022, 136 Stat. making appointments under this subsection shall file 4359.) with the Division of the Federal Register for publica- tion in the Federal Register a statement including the TERMINATION OF SECTION name of the appointee, the employing department or For termination of section, see section 4564(a) agency, the title of his position, and the name of his of this title. private employer, and the appointee shall file with such Division for publication in the Federal Register a Editorial Notes statement listing the names of any corporations of which he is an officer or director or within sixty days REFERENCES IN TEXT preceding his appointment has been an officer or direc- This chapter, referred to in subsecs. (b), (c), and (g), tor, or in which he owns, or within sixty days preceding was in the original ‘‘this Act’’ or ‘‘the Act’’, meaning his appointment has owned, any stocks, bonds, or other act Sept. 8, 1950, ch. 932, 64 Stat. 798, known as the De- financial interests, and the names of any partnerships fense Production Act of 1950, which is classified prin- in which he is, or was within sixty days preceding his cipally to this chapter. For complete classification of appointment, a partner, and the names of any other this Act to the Code, see section 4501 of this title and businesses in which he owns, or within such sixty-day Tables. period has owned, any similar interest. At the end of each succeeding six-month period, the appointee shall CODIFICATION file with such Division for publication in the Federal Register a statement showing any changes in such in- Section was formerly classified to section 2160 of the terests during such period.’’ former Appendix to this title prior to editorial reclassi- Subsec. (b)(7). Pub. L. 102–558, § 143(b)(1), substituted fication and renumbering as this section. ‘‘Director of the Office of Personnel Management’’ for In subsec. (c), ‘‘section 3109 of title 5’’ substituted for ‘‘Chairman of the United States Civil Service Commis- ‘‘section 55a of title 5 of the United States Code’’ as if sion’’ and ‘‘his or her findings’’ for ‘‘his findings’’, it had been a reference to section 15 of act Aug. 2, 1946, struck out ‘‘and the Joint Committee on Defense Pro- ch. 744, 60 Stat. 810, on which section 55a of title 5 was duction’’ after ‘‘to the President’’, and substituted ‘‘he based, on authority of Pub. L. 89–554, § 7(b), Sept. 6, 1966, or she may’’ for ‘‘he may’’. 80 Stat. 631, the first section of which enacted Title 5, Subsec. (b)(8). Pub. L. 102–558, § 143(b)(2), substituted Government Organization and Employees. ‘‘reimbursement for travel, subsistence, and other nec- AMENDMENTS essary expenses incurred by them in carrying out the functions for which they were appointed in the same 2022—Subsec. (b)(5)(B). Pub. L. 117–286 substituted manner as persons employed intermittently in the Fed- ‘‘section 13103 of title 5,’’ for ‘‘section 101 of the Ethics eral Government are allowed expenses under section in Government Act of 1978,’’ and ‘‘section 13109 of title 5703 of title 5’’ for ‘‘transportation and not to exceed $15 5’’ for ‘‘section 107 of that Act’’. per diem in lieu of subsistence while away from their 2009—Subsec. (b)(2)(iii). Pub. L. 111–67, § 10(1)(A), homes or regular places of business pursuant to such struck out cl. (iii), which read as follows: ‘‘In the ap- appointment’’. pointment of personnel and in assignment of their du- 1975—Subsec. (e). Pub. L. 94–152 substituted provisions ties, the head of the department or agency involved authorizing per diem in lieu of subsistence in accord- shall take steps to avoid, to as great an extent as pos- ance with provisions of title 5 with respect to individ- sible, any conflict between the governmental duties uals serving without pay while away from their homes and the private interests of such personnel.’’ or regular places of business, for provisions authorizing Subsec. (b)(4), (5). Pub. L. 111–67, § 10(1)(B), (C), redes- $15 per diem in lieu of subsistence. ignated pars. (5) and (6) as (4) and (5), respectively, and 1955—Subsec. (a). Act June 28, 1955, repealed subsec. struck out former par. (4), which exempted persons em- (a) which authorized President to place positions and ployed under subsec. (b) from certain provisions re- employ persons temporarily in grades 16, 17, and 18 of stricting activities of and payments to retired military the General Schedule established by Classification Act officers and public officials, with specific exceptions. of 1949. Subsec. (b)(6). Pub. L. 111–67, § 10(1)(D), substituted Subsec. (b). Act Aug. 9, 1955, § 7, imposed additional ‘‘The Director of the Office of Personnel Management restrictions on employment of persons without com- Page 1115 TITLE 50—WAR AND NATIONAL DEFENSE § 4561 pensation by establishing guides to be used by Presi- Stat. 632; Pub. L. 98–265, § 5, Apr. 17, 1984, 98 Stat. dent, requiring written certification, publication of 151; Pub. L. 99–441, § 3, Oct. 3, 1986, 100 Stat. 1117; statements, and a survey of appointments. Pub. L. 101–137, § 9(b), Nov. 3, 1989, 103 Stat. 826; Subsecs. (e) to (g). Act Aug. 9, 1955, § 8, added subsec. (e) and redesignated former subsecs. (e) and (f) as (f) Pub. L. 102–99, § 3, Aug. 17, 1991, 105 Stat. 487; and (g), respectively. Pub. L. 102–558, title I, §§ 144, 152, 161, Oct. 28, 1951—Subsec. (f). Act July 31, 1951, added subsec. (f). 1992, 106 Stat. 4218, 4219; Pub. L. 104–64, § 3, Dec. 18, 1995, 109 Stat. 689; Pub. L. 105–261, div. A, title Statutory Notes and Related Subsidiaries X, § 1072(b), Oct. 17, 1998, 112 Stat. 2137; Pub. L. 106–65, div. A, title X, § 1063(b), Oct. 5, 1999, 113 EFFECTIVE DATE OF 1992 AMENDMENT Stat. 769; Pub. L. 106–363, § 2, Oct. 27, 2000, 114 Amendment by Pub. L. 102–558 deemed to have be- Stat. 1407; Pub. L. 107–47, § 3, Oct. 5, 2001, 115 come effective Mar. 1, 1992, see section 304 of Pub. L. Stat. 260; Pub. L. 108–195, § 2(b), Dec. 19, 2003, 117 102–558, set out as a note under section 4502 of this title. Stat. 2892; Pub. L. 110–367, § 3, Oct. 8, 2008, 122 EFFECTIVE DATE OF 1975 AMENDMENT Stat. 4026; Pub. L. 111–67, § 2(b), Sept. 30, 2009, 123 Stat. 2007; Pub. L. 113–172, § 5, Sept. 26, 2014, 128 Amendment by Pub. L. 94–152 effective at close of Stat. 1898; Pub. L. 116–92, div. A, title XVII, Nov. 30, 1975, see section 9 of Pub. L. 94–152, as amended, § 1705(a), Dec. 20, 2019, 133 Stat. 1797.) set out as a note under section 4558 of this title. TERMINATION OF SECTION EFFECTIVE DATE OF 1955 AMENDMENTS For termination of section, see section 4564(a) Amendment by act Aug. 9, 1955, effective as of close of this title. of July 31, 1955, see section 11 of act Aug. 9, 1955, set out as a note under section 4502 of this title. Editorial Notes Executive Documents REFERENCES IN TEXT DELEGATION OF FUNCTIONS This chapter, referred to in text, was in the original ‘‘this Act’’, meaning act Sept. 8, 1950, ch. 932, 64 Stat. Authority of President to implement the Defense 798, known as the Defense Production Act of 1950, which Production Act of 1950 (this chapter) in this sub- is classified principally to this chapter. For complete chapter— classification of this Act to the Code, see section 4501 (1) with respect to hoarding of health and medical of this title and Tables. resources necessary to respond to the spread of COVID–19 within the United States delegated to Sec- CODIFICATION retary of Health and Human Services, see section 2(a)(ii) of Ex. Ord. 13910, Mar. 23, 2020, 85 F.R. 17001, Section was formerly classified to section 2161 of the set out as a note under section 4512 of this title; former Appendix to this title prior to editorial reclassi- (2) with respect to responding to the spread of fication and renumbering as this section. COVID–19 within the United States delegated to Sec- AMENDMENTS retary of Health and Human Services and Secretary of Homeland Security, see section 2(a) of Ex. Ord. No. 2019—Pub. L. 116–92 inserted at end ‘‘In addition to 13911, Mar. 27, 2020, 85 F.R. 18403, set out as a note the appropriations authorized by the previous sentence, under section 4511 of this title; and there is authorized to be appropriated $117,000,000 for (3) in addition to the delegation of authority in Ex. each of fiscal years 2020 through 2024 to carry out sub- Ord. No. 13911, delegated to Chief Executive Officer of chapter II.’’ the United States International Development Fi- 2014—Pub. L. 113–172 substituted ‘‘is authorized to be nance Corporation, see section 2 of Ex. Ord. No. 13922, appropriated $133,000,000 for fiscal year 2015 and each May 14, 2020, 85 F.R. 30583, set out as a note under sec- fiscal year thereafter’’ for ‘‘are hereby authorized to be tion 4532 of this title. appropriated such sums as may be necessary and appro- Functions of President under this chapter relating to priate’’ and struck out at end ‘‘Funds made available production, conservation, use, control, distribution, pursuant to this paragraph for the purposes of this and allocation of energy, delegated to Secretary of En- chapter may be allocated or transferred for any of the ergy, see section 4 of Ex. Ord. No. 11790, June 25, 1974, purposes of this chapter, with the approval of the Office 39 F.R. 23185, set out under section 761 of Title 15, Com- of Management and Budget, to any agency designated merce and Trade. to assist in carrying out this chapter. Funds so allo- For delegation of authority of President under sub- cated or transferred shall remain available for such pe- secs. (b), (c), and (e) of this section, see sections 501(b) riod as may be specified in the Acts making such funds and 502 of Ex. Ord. No. 13603, Mar. 16, 2012, 77 F.R. 16656, available.’’ set out as a note under section 4553 of this title. 2009—Pub. L. 111–67 struck out subsec. (a) designation and heading, struck out provisions relating to excep-

§ 4561. Authorization of appropriations; avail- tion provided in subsec. (b) and parenthetical provision ability of funds including sections 4532 and 4533 of this title within pro- visions and purposes of chapter and excluding sections There is authorized to be appropriated 305 and 306 of act Sept. 8, 1950, ch. 932, from such provi- $133,000,000 for fiscal year 2015 and each fiscal sions and purposes, and struck out subsec. (b) which re- year thereafter for the carrying out of the provi- lated to subchapter II appropriations for fiscal years sions and purposes of this chapter by the Presi- 1996 through 2009. 2008—Subsec. (b). Pub. L. 110–367 substituted ‘‘2009’’ dent and such agencies as he may designate or for ‘‘2008’’. create. In addition to the appropriations author- 2003—Subsec. (b). Pub. L. 108–195 substituted ‘‘2008’’ ized by the previous sentence, there is author- for ‘‘2003’’. ized to be appropriated $117,000,000 for each of 2001—Subsec. (b). Pub. L. 107–47 substituted ‘‘2003’’ for fiscal years 2020 through 2024 to carry out sub- ‘‘2001’’. chapter II. 2000—Subsec. (b). Pub. L. 106–363 substituted ‘‘2001’’ for ‘‘2000’’. (Sept. 8, 1950, ch. 932, title VII, § 711, 64 Stat. 820; 1999—Subsec. (b). Pub. L. 106–65 substituted ‘‘fiscal Pub. L. 93–426, § 3, Sept. 30, 1974, 88 Stat. 1167; years 1996 through 2000’’ for ‘‘the fiscal years 1996, 1997, Pub. L. 96–294, title I, § 105(a), June 30, 1980, 94 1998, and 1999’’.

§ 4562 TITLE 50—WAR AND NATIONAL DEFENSE Page 1116 1998—Subsec. (b). Pub. L. 105–261 substituted ‘‘1998, 4531, 4532, and 4533 of this title during fiscal year 1990 and 1999’’ for ‘‘and 1998’’. may not exceed $50,000,000.’’ 1995—Subsec. (a). Pub. L. 104–64, § 3(1), struck out 1989—Subsec. (a)(4). Pub. L. 101–137 amended par. (4) paragraph designation ‘‘(1)’’ and former par. (1) heading generally. Prior to amendment, par. (4) read as follows: ‘‘In general’’ and in text substituted ‘‘Except as pro- ‘‘(A) There are authorized to be appropriated for fis- vided in subsection (b),’’ for ‘‘Except as provided in sub- cal years 1987, 1988, and 1989 not to exceed $150,000,000 to section (c),’’. carry out the provisions of section 4533 of this title, ex- Subsecs. (b) to (d). Pub. L. 104–64, § 3(2), added subsec. cept that not more than $30,000,000 is authorized to be (b) and struck out former subsec. (b) which authorized appropriated for fiscal year 1987. appropriations to carry out provisions of section ‘‘(B) The aggregate amount of loans, guarantees, pur- 305(k)(2) of act Sept. 8, 1950, ch. 932, former subsec. (c) chase agreements, and other actions under sections which authorized appropriations for fiscal year 1991 to 4531, 4532, and 4533 of this title during fiscal years 1987, carry out provisions of sections 4531 to 4533 of this title, 1988, and 1989 may not exceed $150,000,000.’’ and former subsec. (d) which authorized appropriations 1986—Subsec. (a)(4). Pub. L. 99–441 amended par. (4) for fiscal years 1993, 1994, and 1995 to carry out sub- generally. Prior to amendment, par. (4) read as follows: chapter II of this chapter. ‘‘(A) There are authorized to be appropriated to carry 1992—Subsec. (a). Pub. L. 102–558, § 152(2)(A), inserted out the provisions of section 4533 of this title not to ex- heading. ceed $100,000,000 for fiscal years 1985 and 1986, except Subsec. (a)(1). Pub. L. 102–558, § 152(2)(A), (B), inserted that not more than $25,000,000 is authorized to be appro- par. heading, substituted ‘‘Except as provided in sub- priated for fiscal year 1985. section (c),’’ for ‘‘Except as provided in paragraph (2) ‘‘(B) The aggregate amount of loans, guarantees, pur- and paragraph (4)’’, and struck out ‘‘and for payment of chase agreements, and other actions under sections interest under subsection (b) of this section’’ after 4531, 4532, and 4533 of this title during fiscal years 1985 ‘‘sections 4532 and 4533 of this title’’. and 1986 may not exceed $100,000,000.’’ Pub. L. 102–558, § 144, substituted ‘‘Office of Manage- 1984—Subsec. (a)(1), (4). Pub. L. 98–265 inserted ‘‘and ment and Budget’’ for ‘‘Bureau of the Budget’’. paragraph (4)’’ after ‘‘paragraph (2)’’ in par. (1) and Subsec. (a)(2). Pub. L. 102–558, § 152(2)(C), struck out added par. (4). par. (2) which related to authorization of appropria- 1980—Subsec. (a). Pub. L. 96–294, § 105(a), designated tions not to exceed $3,000,000,000 to carry out the provi- existing provisions as par. (1), inserted exclusions of sions of section 305 of act Sept. 8, 1950, ch. 932, until the sections 305 and 306 of act Sept. 8, 1950, ch. 932, ref- date on which the authority of the President under erence to funds made available pursuant to this para- such section would cease to be effective. graph, and exception for par. (2), and added pars. (2) and Subsec. (a)(3). Pub. L. 102–558, § 152(2)(D), redesignated (3). par. (3) as subsec. (b). See below. 1974—Pub. L. 93–426 designated existing provisions as Subsec. (a)(4). Pub. L. 102–558, § 152(2)(E), redesignated subsec. (a), inserted reference to sections 4532 and 4533 subpar. (A) as subsec. (c) (see below) and struck out of this title, and added subsec. (b). subpar. (B) which read as follows: ‘‘The aggregate amount of loans, guarantees, purchase agreements, and Statutory Notes and Related Subsidiaries other actions under sections 4531, 4532, and 4533 of this title during fiscal years 1987, 1988, and 1989 may not ex- EFFECTIVE DATE OF 1992 AMENDMENT ceed $150,000,000.’’ Amendment by Pub. L. 102–558 deemed to have be- Subsec. (b). Pub. L. 102–558, § 152(1), (2)(D), redesig- come effective Mar. 1, 1992, see section 304 of Pub. L. nated par. (3) of subsec. (a) as subsec. (b), inserted head- 102–558, set out as a note under section 4502 of this title. ing, struck out ‘‘There are’’ before ‘‘hereby’’, and struck out former subsec. (b) which read as follows: EFFECTIVE DATE OF 1991 AMENDMENT ‘‘Interest shall accrue on (1) the cumulative amount of Amendment by Pub. L. 102–99 effective Oct. 20, 1990, disbursements to carry out the purposes of sections see section 7 of Pub. L. 102–99, set out as a note under 4532 and 4533 of this title (except for storage mainte- section 4511 of this title. nance, and other operating and administrative ex- penses), plus any unpaid accrued interest, less the cu- EFFECTIVE DATE OF 1980 AMENDMENT mulative amount of any funds received on transactions Amendment by Pub. L. 96–294 effective June 30, 1980, entered into pursuant to sections 4532 and 4533 of this see section 107 of Pub. L. 96–294, set out as a note under title and any net losses incurred by an agency in car- section 4502 of this title. rying out its functions under sections 4532 and 4533 of this title when the head of the agency determines that Executive Documents such net losses have occurred; and (2) the current mar- ket value of the inventory of materials procured under DELEGATION OF FUNCTIONS section 4533 of this title as of the first day of each fiscal Functions of President under this chapter relating to year commencing with the fiscal year beginning July 1, production, conservation, use, control, distribution, 1975. At the close of each fiscal year there shall be de- and allocation of energy, delegated to Secretary of En- posited into the Treasury as miscellaneous receipts, ergy, see section 4 of Ex. Ord. No. 11790, June 25, 1974, from any amounts appropriated under this section, an 39 F.R. 23185, set out as a note under section 761 of Title amount which the Secretary of the Treasury deter- 15, Commerce and Trade. mines necessary to provide for the payment of any in- terest accrued and unpaid under this subsection. The § 4562. Territorial application of chapter rate of interest shall be determined by the Secretary of the Treasury, taking into consideration the average The provisions of this chapter shall be applica- market yield during the month preceding each fiscal ble to the United States, its Territories and pos- year on outstanding marketable obligations of the sessions, and the District of Columbia. United States with one year remaining to maturity.’’ (Sept. 8, 1950, ch. 932, title VII, § 713, 64 Stat. 821.) Subsec. (c). Pub. L. 102–558, § 152(2)(E), redesignated subpar. (A) of par. (4) of subsec. (a) as subsec. (c) and in- TERMINATION OF SECTION serted heading. Subsec. (d). Pub. L. 102–558, § 161, added subsec. (d). For termination of section, see section 4564(a) 1991—Subsec. (a)(4). Pub. L. 102–99 amended par. (4) of this title. generally. Prior to amendment, par. (4) read as follows: ‘‘(4)(A) There are authorized to be appropriated for Editorial Notes fiscal year 1990, not to exceed $50,000,000 to carry out REFERENCES IN TEXT the provisions of section 4533 of this title. ‘‘(B) The aggregate amount of loans, guarantees, pur- This chapter, referred to in text, was in the original chase agreements, and other actions under sections ‘‘this Act’’, meaning act Sept. 8, 1950, ch. 932, 64 Stat. Page 1117 TITLE 50—WAR AND NATIONAL DEFENSE § 4564 798, known as the Defense Production Act of 1950, which protect the interests of the United States in any is classified principally to this chapter. For complete amounts advanced or paid out in carrying on op- classification of this Act to the Code, see section 4501 erations under this chapter, or the taking of any of this title and Tables. action (including the making of new guarantees) CODIFICATION deemed by a guaranteeing agency to be nec- essary to accomplish the orderly liquidation, ad- Section was formerly classified to section 2163 of the former Appendix to this title prior to editorial reclassi- justment or settlement of any loans guaranteed fication and renumbering as this section. under this chapter, including actions deemed necessary to avoid undue hardship to borrowers

§ 4563. Separability in reconverting to normal civilian production; and all of the authority granted to the Presi- If any provision of this chapter or the applica- dent, guaranteeing agencies, and fiscal agents, tion of such provision to any person or cir- under section 4531 of this title shall be applica- cumstances shall be held invalid, the remainder ble to actions taken pursuant to the authority of the chapter, and the application of such pro- contained in this subsection. vision to persons or circumstances other than (d) Conditions on recovery of certain cooperative those as to which it is held invalid, shall not be payments affected thereby. No action for the recovery of any cooperative (Sept. 8, 1950, ch. 932, title VII, § 715, formerly payment made to a cooperative association by a

§ 714, 64 Stat. 821; renumbered § 715, July 31, 1951, Market Administrator under an invalid provi- ch. 275, title I, § 110(b), 65 Stat. 144.) sion of a milk marketing order issued by the TERMINATION OF SECTION Secretary of Agriculture pursuant to the Agri- cultural Marketing Agreement Act of 1937 [7 For termination of section, see section 4564(a) U.S.C. 671 et seq.] shall be maintained unless of this title. such action is brought by producers specifically named as party plaintiffs to recover their re- Editorial Notes spective share of such payments within ninety REFERENCES IN TEXT days after June 30, 1952, with respect to any cause of action heretofore accrued and not oth- This chapter and the chapter, referred to in text, were in the original ‘‘this Act’’ and ‘‘the Act’’, respec- erwise barred, or within ninety days after ac- tively, meaning act Sept. 8, 1950, ch. 932, 64 Stat. 798, crual with respect to future payments, and un- known as the Defense Production Act of 1950, which is less each claimant shall allege and prove (1) that classified principally to this chapter. For complete he objected at the hearing to the provisions of classification of this Act to the Code, see section 4501 the order under which such payments were made of this title and Tables. and (2) that he either refused to accept pay- CODIFICATION ments computed with such deduction or accept- ed them under protest to either the Secretary or Section was formerly classified to section 2164 of the the Administrator. The district courts of the former Appendix to this title prior to editorial reclassi- fication and renumbering as this section. United States shall have exclusive original ju- risdiction of all such actions regardless of the

§ 4564. Termination of chapter amount involved. This subsection shall not apply to funds held in escrow pursuant to court (a) Termination order. Notwithstanding any other provision of Subchapter I (except section 4514 of this title), this chapter, no termination date shall be appli- subchapter II, and subchapter III (except sec- cable to this subsection. tions 4557, 4558, and 4565 of this title) shall ter- (Sept. 8, 1950, ch. 932, title VII, § 717, formerly minate on September 30, 2025, except that all au- § 716, 64 Stat. 822; June 30, 1951, ch. 198, § 1, 65 thority extended under subchapter II shall be ef- Stat. 110; renumbered § 717, July 31, 1951, ch. 275, fective for any fiscal year only to such extent or title I, §§ 110(b), 111, 65 Stat. 144; June 30, 1952, ch. in such amounts as are provided in advance in 530, title I, §§ 120, 121(b), 66 Stat. 306; June 30, appropriations Acts. 1953, ch. 170, § 20, 67 Stat. 126; June 30, 1953, ch. (b) Continuation of agencies 171, §§ 11, 12, 67 Stat. 131; June 30, 1955, ch. 251, § 5, Notwithstanding subsection (a), any agency 69 Stat. 225; Aug. 9, 1955, ch. 655, § 10, 69 Stat. 583; created under a provision of law that is termi- June 29, 1956, ch. 474, § 1, 70 Stat. 408; Pub. L. nated under subsection (a) may continue in ex- 85–471, June 28, 1958, 72 Stat. 241; Pub. L. 86–560, istence, for purposes of liquidation, for a period § 1, June 30, 1960, 74 Stat. 282; Pub. L. 87–505, not to exceed 6 months, beginning on the date of June 28, 1962, 76 Stat. 112; Pub. L. 88–343, § 1, termination of the provision authorizing the June 30, 1964, 78 Stat. 235; Pub. L. 89–482, § 1, creation of such agency under subsection (a). June 30, 1966, 80 Stat. 235; Pub. L. 90–370, § 1, July 1, 1968, 82 Stat. 279; Pub. L. 91–300, June 30, 1970, (c) Disbursement of funds or fulfillment of obli- 84 Stat. 367; Pub. L. 91–371, Aug. 1, 1970, 84 Stat. gations not affected 694; Pub. L. 91–379, title I, § 101, Aug. 15, 1970, 84 The termination of any section of this chap- Stat. 796; Pub. L. 92–15, § 2, May 18, 1971, 85 Stat. ter, or of any agency or corporation utilized 38; Pub. L. 92–325, § 2, June 30, 1972, 86 Stat. 390; under this chapter, shall not affect the disburse- Pub. L. 93–323, June 30, 1974, 88 Stat. 280; Pub. L. ment of funds under, or the carrying out of, any 93–367, Aug. 7, 1974, 88 Stat. 419; Pub. L. 93–426, contract, guarantee, commitment or other obli- § 4, Sept. 30, 1974, 88 Stat. 1167; Pub. L. 94–42, § 1, gation entered into pursuant to this chapter June 28, 1975, 89 Stat. 232; Pub. L. 94–100, § 1, Oct. prior to the date of such termination, or the 1, 1975, 89 Stat. 483; Pub. L. 94–152, § 2, Dec. 16, taking of any action necessary to preserve or 1975, 89 Stat. 810; Pub. L. 95–37, § 2, June 1, 1977,

§ 4564 TITLE 50—WAR AND NATIONAL DEFENSE Page 1118 91 Stat. 178; Pub. L. 96–77, Sept. 29, 1979, 93 Stat. ter prior to the termination otherwise provided 588; Pub. L. 96–188, Jan. 28, 1980, 94 Stat. 3; Pub. therefor. L. 96–225, Apr. 3, 1980, 94 Stat. 310; Pub. L. 96–250, ‘‘(2) The Congress may also provide by concurrent resolution that any section of this chapter and all au- May 26, 1980, 94 Stat. 371; Pub. L. 96–294, title I, thority conferred thereunder shall terminate prior to

§ 105(b), June 30, 1980, 94 Stat. 633; Pub. L. 97–47, the termination otherwise provided therefor.

§ 1, Sept. 30, 1981, 95 Stat. 954; Pub. L. 97–336, Oct. ‘‘(3) Any agency created under this chapter may be 15, 1982, 96 Stat. 1630; Pub. L. 98–12, Mar. 29, 1983, continued in existence for purposes of liquidation for 97 Stat. 53; Pub. L. 98–181, title I [title VII, § 703], not to exceed six months after the termination of the Nov. 30, 1983, 97 Stat. 1267; Pub. L. 98–265, § 2, provision authorizing the creation of such agency.’’ Apr. 17, 1984, 98 Stat. 149; Pub. L. 99–441, § 2, Oct. Subsec. (c). Pub. L. 111–67, § 2(a)(1)(B), struck out the second undesignated paragraph in subsec. (c), which re- 3, 1986, 100 Stat. 1117; Pub. L. 101–137, § 9(a), Nov. lated to construction of termination of title VI of act 3, 1989, 103 Stat. 826; Pub. L. 101–351, § 1, Aug. 9, Sept. 8, 1950, ch. 932. 1990, 104 Stat. 404; Pub. L. 101–407, § 1, Oct. 4, 1990, 2008—Subsec. (a). Pub. L. 110–367 substituted ‘‘Sep- 104 Stat. 882; Pub. L. 101–411, § 1, Oct. 6, 1990, 104 tember 30, 2009’’ for ‘‘September 30, 2008’’. Stat. 893; Pub. L. 102–99, §§ 2, 8, Aug. 17, 1991, 105 2003—Subsec. (a). Pub. L. 108–195, in first sentence, Stat. 487, 490; Pub. L. 102–193, § 1, Dec. 6, 1991, 105 substituted ‘‘sections 4557, 4558, and 4565’’ for ‘‘sections Stat. 1593; Pub. L. 102–558, title I, § 162, Oct. 28, 4558 and 4565’’ and ‘‘September 30, 2008’’ for ‘‘September 30, 2003’’. 1992, 106 Stat. 4219; Pub. L. 104–64, § 2, Dec. 18, 2001—Subsec. (a). Pub. L. 107–47 substituted ‘‘Sep- 1995, 109 Stat. 689; Pub. L. 105–261, div. A, title X, tember 30, 2003’’ for ‘‘September 30, 2001’’.

§ 1072(a), Oct. 17, 1998, 112 Stat. 2137; Pub. L. 2000—Subsec. (a). Pub. L. 106–363 substituted ‘‘Sep- 106–65, div. A, title X, § 1063(a), Oct. 5, 1999, 113 tember 30, 2001’’ for ‘‘September 30, 2000’’. Stat. 769; Pub. L. 106–363, § 1, Oct. 27, 2000, 114 1999—Subsec. (a). Pub. L. 106–65 substituted ‘‘Sep- Stat. 1407; Pub. L. 107–47, § 2, Oct. 5, 2001, 115 tember 30, 2000’’ for ‘‘September 30, 1999’’. 1998—Subsec. (a). Pub. L. 105–261 substituted ‘‘Sep- Stat. 260; Pub. L. 108–195, § 2(a), Dec. 19, 2003, 117 tember 30, 1999’’ for ‘‘September 30, 1998’’. Stat. 2892; Pub. L. 110–367, § 2, Oct. 8, 2008, 122 1995—Subsec. (a). Pub. L. 104–64, in first sentence, Stat. 4026; Pub. L. 111–67, § 2(a)(1), Sept. 30, 2009, substituted provisions relating to termination of sub- 123 Stat. 2006; Pub. L. 113–172, § 1, Sept. 26, 2014, chapters I to III on Sept. 30, 1998, for provisions relating 128 Stat. 1896; Pub. L. 115–232, div. A, title XVII, to termination of subchapters I to III on Sept. 30, 1995.

§ 1791, Aug. 13, 2018, 132 Stat. 2238.) 1992—Subsec. (a). Pub. L. 102–558 substituted ‘‘Sep- tember 30, 1995’’ for ‘‘March 1, 1992’’. Editorial Notes 1991—Subsec. (a). Pub. L. 102–193 substituted ‘‘March 1, 1992’’ for ‘‘September 30, 1991’’. REFERENCES IN TEXT Pub. L. 102–99 extended termination date from Oct. Subchapter III, referred to in subsec. (a), was in the 20, 1990, to Sept. 30, 1991, and inserted parenthetical ref- original ‘‘title VII’’, meaning title VII of act Sept. 8, erence to section 4565 of this title. 1950, ch. 932, 64 Stat. 815, which is classified principally 1990—Subsec. (a). Pub. L. 101–411 extended termi- to this subchapter. For complete classification of title nation date from Oct. 5, 1990, to Oct. 20, 1990. Pub. L. 101–407 extended termination date from Sept. VII to the Code, see Tables. This chapter, referred to in subsecs. (c) and (d), was 30, 1990, to Oct. 5, 1990. Pub. L. 101–351 extended termination date from Aug. in the original ‘‘this Act’’, meaning act Sept. 8, 1950, 10, 1990, to Sept. 30, 1990. ch. 932, 64 Stat. 798, known as the Defense Production 1989—Subsec. (a). Pub. L. 101–137 extended termi- Act of 1950, which is classified principally to this chap- nation date from Sept. 30, 1989, to Aug. 10, 1990. ter. For complete classification of this Act to the Code, 1986—Subsec. (a). Pub. L. 99–441 extended termination see section 4501 of this title and Tables. date from Sept. 30, 1986, to Sept. 30, 1989. The Agricultural Marketing Agreement Act of 1937, 1984—Subsec. (a). Pub. L. 98–265 extended termination referred to in subsec. (d), is act June 3, 1937, ch. 296, 50 date from Mar. 30, 1984, to Sept. 30, 1986. Stat. 246, which is classified principally to chapter 26A 1983—Subsec. (a). Pub. L. 98–181 extended termination (§ 671 et seq.) of Title 7, Agriculture. For complete clas- date from Sept. 30, 1983, to Mar. 30, 1984. sification of this Act to the Code, see section 674 of Pub. L. 98–12 extended termination date from Mar. 31, Title 7 and Tables. 1983, to Sept. 30, 1983. CODIFICATION 1982—Pub. L. 97–336 extended termination date from Sept. 30, 1982, to Mar. 31, 1983. Section was formerly classified to section 2166 of the 1981—Subsec. (a). Pub. L. 97–47 extended termination former Appendix to this title prior to editorial reclassi- date from Sept. 30, 1981, to Sept. 30, 1982. fication and renumbering as this section. 1980—Subsec. (a). Pub. L. 96–294 extended termination AMENDMENTS date from Aug. 27, 1981, to Sept. 30, 1981. Pub. L. 96–250 extended termination date from May 2018—Subsec. (a). Pub. L. 115–232 substituted ‘‘Sep- 27, 1980, to Aug. 27, 1980. tember 30, 2025’’ for ‘‘September 30, 2019’’. Pub. L. 96–225 extended termination date from Mar. 2014—Subsec. (a). Pub. L. 113–172 substituted ‘‘2019’’ 28, 1980, to May 27, 1980. for ‘‘2014’’ and struck out ‘‘on or after the date of enact- Pub. L. 96–188 extended termination date from Jan. ment of the Defense Production Act Reauthorization of 28, 1980, to Mar. 28, 1980. 2009’’ before ‘‘shall be effective’’. 1979—Subsec. (a). Pub. L. 96–77 extended termination 2009—Subsec. (a). Pub. L. 111–67, § 2(a)(1)(A), added date from Sept. 30, 1979, to Jan. 28, 1980. subsec. (a) and struck out former subsec. (a) which re- 1977—Subsec. (a). Pub. L. 95–37 extended termination lated to termination of subchapters I to III on Sept. 30, date from Sept. 30, 1977, to Sept. 30, 1979. 2009, termination of section 714 of act Sept. 8, 1950, ch. 1975—Subsec. (a). Pub. L. 94–152 extended termination 932, on July 31, 1953, termination of section 4514 of this date from Nov. 30, 1975, to Sept. 30, 1977, and inserted title and titles II and VI of act Sept. 8, 1950, ch. 932, on proviso that all authority now or subsequently ex- June 30, 1953, and termination of titles IV and V of act tended under subchapter II shall be effective for any Sept. 8, 1950, ch. 932, on Apr. 30, 1953. fiscal year only to such extent and amounts as are pro- Subsec. (b). Pub. L. 111–67, § 2(a)(1)(A), added subsec. vided for in advance in appropriation Acts. (b) and struck out former subsec. (b) which read as fol- Pub. L. 94–100 extended termination date from Sept. lows: ‘‘Notwithstanding the foregoing— 30, 1975, to Nov. 30, 1975. ‘‘(1) The Congress by concurrent resolution or the Pub. L. 94–42 extended termination date from June 30, President by proclamation may terminate this chap- 1975, to Sept. 30, 1975. Page 1119 TITLE 50—WAR AND NATIONAL DEFENSE § 4565 1974—Subsec. (a). Pub. L. 93–426 extended termination Amendment by Pub. L. 102–99 effective Oct. 20, 1990, date from June 30, 1974, to June 30, 1975. see section 7 of Pub. L. 102–99, set out as a note under Pub. L. 93–367 extended termination date from July section 4511 of this title. 30, 1974, to Sept. 30, 1974. Pub. L. 93–323 extended termination date from June EFFECTIVE DATE OF 1980 AMENDMENT 30, 1974, to July 30, 1974. Amendment by Pub. L. 96–294 effective June 30, 1980, 1972—Subsec. (a). Pub. L. 92–325 substituted ‘‘June 30, see section 107 of Pub. L. 96–294, set out as a note under 1974’’ for ‘‘June 30, 1972’’. section 4502 of this title. 1971—Subsec. (a). Pub. L. 92–15 inserted parenthetical reference to section 4558 of this title. EFFECTIVE DATE OF 1975 AMENDMENT 1970—Subsec. (a). Pub. L. 91–379 extended termination date from Aug. 15, 1970, to June 30, 1972, and inserted Amendment by Pub. L. 94–152 effective at close of reference to section 719 of act Sept. 8, 1950, ch. 932, after Nov. 30, 1975, see section 9 of Pub. L. 94–152, as amended, reference to section 714 of such act. set out as a note under section 4558 of this title. Pub. L. 91–371 extended termination date from July EFFECTIVE DATE OF 1955 AMENDMENT 30, 1970, to Aug. 15, 1970. Pub. L. 91–300 extended termination date from June Amendment by act Aug. 9, 1955, effective as of close 30, 1970, to July 30, 1970. of July 31, 1955, see section 11 of act Aug. 9, 1955, set out 1968—Subsec. (a). Pub. L. 90–370 extended termination as a note under section 4502 of this title. date from June 30, 1968, to June 30, 1970. 1966—Subsec. (a). Pub. L. 89–482 extended termination § 4565. Authority to review certain mergers, ac- date from June 30, 1966, to June 30, 1968. quisitions, and takeovers 1964—Subsec. (a). Pub. L. 88–343 extended termination date from June 30, 1964, to June 30, 1966. (a) Definitions 1962—Subsec. (a). Pub. L. 87–505 extended termination date from June 30, 1962, to June 30, 1964. In this section: 1960—Subsec. (a). Pub. L. 86–560 extended termination (1) Clarification date from June 30, 1960, to June 30, 1962. 1958—Subsec. (a). Pub. L. 85–471 extended termination The term ‘‘national security’’ shall be con- date from June 30, 1958, to June 30, 1960. strued so as to include those issues relating to 1956—Subsec. (a). Act June 29, 1956, extended termi- ‘‘homeland security’’, including its application nation date from June 30, 1956, to June 30, 1958. to critical infrastructure. 1955—Subsec. (a). Act Aug. 9, 1955, extended termi- nation date from July 31, 1955, to June 30, 1956. (2) Committee; chairperson Act June 30, 1955, extended termination date from The terms ‘‘Committee’’ and ‘‘chairperson’’ June 30, 1955, to July 31, 1955. mean the Committee on Foreign Investment 1953—Subsec. (a). Act June 30, 1953, ch. 171, § 11, ex- tended termination date of subchapters I to III from in the United States and the chairperson June 30, 1953, to June 30, 1955. thereof, respectively. Subsec. (c). Act June 30, 1953, ch. 171, § 12, inserted ‘‘or (3) Control the taking of any action (including the making of new guarantees) deemed by a guaranteeing agency to be The term ‘‘control’’ means the power, direct necessary to accomplish the orderly liquidation, ad- or indirect, whether exercised or not exer- justment or settlement of any loans guaranteed under cised, to determine, direct, or decide impor- this chapter, including actions deemed necessary to tant matters affecting an entity, subject to avoid undue hardship to borrowers in reconverting to regulations prescribed by the Committee. normal civilian production; and all of the authority granted to the President, guaranteeing agencies, and (4) Covered transaction fiscal agents, under section 4531 of this title shall be ap- (A) In general plicable to actions taken pursuant to the authority Except as otherwise provided, the term contained in this subsection’’. Act June 30, 1953, ch. 170, added second par. ‘‘covered transaction’’ means— 1952—Subsec. (a). Act June 30, 1952, § 121(b), extended (i) any transaction described in subpara- termination dates from Apr. 30, 1952, to Apr. 30, 1953, graph (B)(i); and and from June 30, 1952, to June 30, 1953. (ii) any transaction described in clauses Subsec. (d). Act June 30, 1952, § 120, added subsec. (d). (ii) through (v) of subparagraph (B) that is 1951—Subsec. (a). Acts July 31, 1951, § 111, and June 30, 1951. Act July 31, 1951, struck out subsec. (a) relating to proposed, pending, or completed on or termination of certain titles of act Sept. 8, 1950, and after the effective date set forth in section substituted present subsec. (a). Act June 30, 1951, ex- 1727 of the Foreign Investment Risk Re- tended termination date from June 30, 1951, to July 31, view Modernization Act of 2018. 1951. (B) Transactions described Subsec. (b). Act July 31, 1951, redesignated subsec. (c) as (b) and struck out former subsec. (b) which related A transaction described in this subpara- to termination date of certain titles of act Sept. 8, 1950. graph is any of the following: Former subsec. (b) was amended by act June 30, 1951, to (i) Any merger, acquisition, or takeover extend termination date from June 30, 1951, to July 31, that is proposed or pending after August 1951. 23, 1988, by or with any foreign person that Subsecs. (c), (d). Act July 31, 1951, § 111, redesignated subsec. (d) as (c). Former subsec. (c) redesignated (b). could result in foreign control of any United States business, including such a Statutory Notes and Related Subsidiaries merger, acquisition, or takeover carried out through a joint venture. EFFECTIVE DATE OF 1992 AMENDMENT (ii) Subject to subparagraphs (C) and (E), Amendment by Pub. L. 102–558 deemed to have be- the purchase or lease by, or a concession come effective Mar. 1, 1992, see section 304 of Pub. L. to, a foreign person of private or public 102–558, set out as a note under section 4502 of this title. real estate that— EFFECTIVE DATE OF 1991 AMENDMENTS (I) is located in the United States; Pub. L. 102–193, § 2, Dec. 6, 1991, 105 Stat. 1593, provided (II)(aa) is, is located within, or will that: ‘‘This Act [amending this section] shall take ef- function as part of, an air or maritime fect on September 30, 1991.’’ port; or

§ 4565 TITLE 50—WAR AND NATIONAL DEFENSE Page 1120 (bb)(AA) is in close proximity to a graph (B)(ii)(II)(bb)(AA), the Committee United States military installation or shall prescribe regulations to ensure that another facility or property of the the term ‘‘close proximity’’ refers only to United States Government that is sen- a distance or distances within which the sitive for reasons relating to national se- purchase, lease, or concession of real es- curity; tate could pose a national security risk in (BB) could reasonably provide the for- connection with a United States military eign person the ability to collect intel- installation or another facility or property ligence on activities being conducted at of the United States Government described such an installation, facility, or prop- in that subparagraph. erty; or (D) Other investments (CC) could otherwise expose national security activities at such an installa- (i) Other investment defined tion, facility, or property to the risk of For purposes of subparagraph (B)(iii), foreign surveillance; and the term ‘‘other investment’’ means an in- (III) meets such other criteria as the vestment, direct or indirect, by a foreign Committee prescribes by regulation, ex- person in a United States business de- cept that such criteria may not expand scribed in that subparagraph that is not an the categories of real estate to which investment described in subparagraph this clause applies beyond the categories (B)(i) and that affords the foreign person— described in subclause (II). (I) access to any material nonpublic technical information in the possession (iii) Any other investment, subject to of the United States business; regulations prescribed under subpara- (II) membership or observer rights on graphs (D) and (E), by a foreign person in the board of directors or equivalent gov- any unaffiliated United States business erning body of the United States busi- that— ness or the right to nominate an indi- (I) owns, operates, manufactures, sup- vidual to a position on the board of di- plies, or services critical infrastructure; rectors or equivalent governing body; or (II) produces, designs, tests, manufac- (III) any involvement, other than tures, fabricates, or develops one or through voting of shares, in substantive more critical technologies; or decisionmaking of the United States (III) maintains or collects sensitive business regarding— personal data of United States citizens (aa) the use, development, acquisi- that may be exploited in a manner that tion, safekeeping, or release of sen- threatens national security. sitive personal data of United States (iv) Any change in the rights that a for- citizens maintained or collected by the eign person has with respect to a United United States business; States business in which the foreign per- (bb) the use, development acquisi- son has an investment, if that change tion, or release of critical tech- could result in— nologies; or (I) foreign control of the United States (cc) the management, operation, business; or manufacture, or supply of critical in- (II) an investment described in clause frastructure. (iii). (ii) Material nonpublic technical informa- (v) Any other transaction, transfer, tion defined agreement, or arrangement, the structure (I) In general of which is designed or intended to evade or circumvent the application of this sec- For purposes of clause (i)(I), and sub- tion, subject to regulations prescribed by ject to regulations prescribed by the the Committee. Committee, the term ‘‘material non- public technical information’’ means in- (C) Real estate transactions formation that— (i) Exception for certain real estate trans- (aa) provides knowledge, know-how, actions or understanding, not available in the A real estate purchase, lease, or conces- public domain, of the design, location, sion described in subparagraph (B)(ii) does or operation of critical infrastructure; not include a purchase, lease, or conces- or sion of— (bb) is not available in the public do- (I) a single ‘‘housing unit’’, as defined main, and is necessary to design, fab- by the Census Bureau; or ricate, develop, test, produce, or manu- (II) real estate in ‘‘urbanized areas’’, as facture critical technologies, including defined by the Census Bureau in the processes, techniques, or methods. most recent census, except as otherwise (II) Exemption for financial information prescribed by the Committee in regula- Notwithstanding subclause (I), for pur- tions in consultation with the Secretary poses of this subparagraph, the term of Defense. ‘‘material nonpublic technical informa- (ii) Definition of close proximity tion’’ does not include financial informa- With respect to a real estate purchase, tion regarding the performance of a lease, or concession described in subpara- United States business. Page 1121 TITLE 50—WAR AND NATIONAL DEFENSE § 4565 (iii) Regulations termine the compensation of the (I) In general general partner, managing member, or equivalent; The Committee shall prescribe regula- tions providing guidance on the types of (ee) the foreign person does not have transactions that the Committee con- access to material nonpublic technical siders to be ‘‘other investment’’ for pur- information as a result of its participa- poses of subparagraph (B)(iii). tion on the advisory board or com- (II) United States businesses that own, mittee; and operate, manufacture, supply, or (ff) the investment otherwise meets service critical infrastructure the requirements of this subparagraph. (II) Treatment of certain waivers The regulations prescribed by the Committee with respect to an invest- (aa) In general ment described in subparagraph For the purposes of items (cc) and (B)(iii)(I) shall— (dd) of subclause (I) and except as pro- (aa) specify the critical infrastruc- vided in item (bb), a waiver of a poten- ture subject to that subparagraph tial conflict of interest, a waiver of an based on criteria intended to limit ap- allocation limitation, or a similar ac- plication of that subparagraph to the tivity, applicable to a transaction pur- subset of critical infrastructure that is suant to the terms of an agreement likely to be of importance to the na- governing an investment fund shall not tional security of the United States; be considered to constitute control of and investment decisions of the fund or de- (bb) enumerate specific types and ex- cisions relating to entities in which amples of such critical infrastructure. the fund is invested. (iv) Specific clarification for investment (bb) Exception funds The Committee may prescribe regu- (I) Treatment of certain investment fund lations providing for exceptions to investments item (aa) for extraordinary cir- Notwithstanding clause (i)(II) and sub- cumstances. ject to regulations prescribed by the (v) Exception for air carriers Committee, an indirect investment by a For purposes of subparagraph (B)(iii), foreign person in a United States busi- the term ‘‘other investment’’ does not in- ness described in subparagraph (B)(iii) clude an investment involving an air car- through an investment fund that affords rier, as defined in section 40102(a)(2) of the foreign person (or a designee of the title 49, that holds a certificate issued foreign person) membership as a limited under section 41102 of that title. partner or equivalent on an advisory (vi) Rule of construction board or a committee of the fund shall not be considered an ‘‘other investment’’ Any definition of ‘‘critical infrastruc- for purposes of subparagraph (B)(iii) if— ture’’ established under any provision of (aa) the fund is managed exclusively law other than this section shall not be de- by a general partner, a managing terminative for purposes of this section. member, or an equivalent; (E) Country specification (bb) the general partner, managing The Committee shall prescribe regulations member, or equivalent is not a foreign that further define the term ‘‘foreign per- person; son’’ for purposes of clauses (ii) and (iii) of (cc) the advisory board or committee subparagraph (B). In prescribing such regu- does not have the ability to approve, lations, the Committee shall specify criteria disapprove, or otherwise control— to limit the application of such clauses to (AA) investment decisions of the the investments of certain categories of for- fund; or eign persons. Such criteria shall take into (BB) decisions made by the general consideration how a foreign person is con- partner, managing member, or equiv- nected to a foreign country or foreign gov- alent related to entities in which the ernment, and whether the connection may fund is invested; affect the national security of the United (dd) the foreign person does not oth- States. erwise have the ability to control the (F) Transfers of certain assets pursuant to fund, including the authority— bankruptcy proceedings or other defaults (AA) to approve, disapprove, or The Committee shall prescribe regulations otherwise control investment deci- to clarify that the term ‘‘covered trans- sions of the fund; action’’ includes any transaction described (BB) to approve, disapprove, or oth- in subparagraph (B) that arises pursuant to erwise control decisions made by the a bankruptcy proceeding or other form of de- general partner, managing member, fault on debt. or equivalent related to entities in which the fund is invested; or (5) Critical infrastructure (CC) to unilaterally dismiss, pre- The term ‘‘critical infrastructure’’ means, vent the dismissal of, select, or de- subject to regulations prescribed by the Com-

§ 4565 TITLE 50—WAR AND NATIONAL DEFENSE Page 1122 mittee, systems and assets, whether physical entity controlled by or acting on behalf of a or virtual, so vital to the United States that foreign government. the incapacity or destruction of such systems (8) Intelligence community or assets would have a debilitating impact on national security. The term ‘‘intelligence community’’ has the meaning given that term in section 3003(4) of (6) Critical technologies title 50. (A) In general (9) Investment The term ‘‘critical technologies’’ means The term ‘‘investment’’ means the acquisi- the following: tion of equity interest, including contingent (i) Defense articles or defense services equity interest, as further defined in regula- included on the United States Munitions tions prescribed by the Committee. List set forth in the International Traffic in Arms Regulations under subchapter M (10) Lead agency of chapter I of title 22, Code of Federal The term ‘‘lead agency’’ means the agency Regulations. or agencies designated as the lead agency or (ii) Items included on the Commerce agencies pursuant to subsection (k)(5). Control List set forth in Supplement No. 1 (11) Party to part 774 of the Export Administration The term ‘‘party’’ has the meaning given Regulations under subchapter C of chapter that term in regulations prescribed by the VII of title 15, Code of Federal Regula- Committee. tions, and controlled— (I) pursuant to multilateral regimes, (12) United States including for reasons relating to na- The term ‘‘United States’’ means the several tional security, chemical and biological States, the District of Columbia, and any ter- weapons proliferation, nuclear non- ritory or possession of the United States. proliferation, or missile technology; or (13) United States business (II) for reasons relating to regional stability or surreptitious listening. The term ‘‘United States business’’ means a person engaged in interstate commerce in the (iii) Specially designed and prepared nu- United States. clear equipment, parts and components, materials, software, and technology cov- (b) National security reviews and investigations ered by part 810 of title 10, Code of Federal (1) National security reviews Regulations (relating to assistance to for- (A) In general eign atomic energy activities). Upon receiving written notification under (iv) Nuclear facilities, equipment, and subparagraph (C) of any covered transaction, material covered by part 110 of title 10, or pursuant to a unilateral notification ini- Code of Federal Regulations (relating to tiated under subparagraph (D) with respect export and import of nuclear equipment to any covered transaction, the President, and material). acting through the Committee— (v) Select agents and toxins covered by (i) shall review the covered transaction part 331 of title 7, Code of Federal Regula- to determine the effects of the transaction tions, part 121 of title 9 of such Code, or on the national security of the United part 73 of title 42 of such Code. States; and (vi) Emerging and foundational tech- (ii) shall consider the factors specified in nologies controlled pursuant to section subsection (f) for such purpose, as appro- 4817 of this title. priate. (B) Recommendations (B) Control by foreign government (i) In general If the Committee determines that the cov- The chairperson may recommend tech- ered transaction is a foreign government- nologies for identification under the inter- controlled transaction, the Committee shall agency process set forth in section 4817(a) conduct an investigation of the transaction of this title. under paragraph (2). (ii) Matters informing recommendations (C) Written notice Recommendations by the chairperson (i) In general under clause (i) shall draw upon informa- (I) In general tion arising from reviews and investiga- tions conducted under subsection (b), no- Any party or parties to any covered tices submitted under subsection transaction may initiate a review of the (b)(1)(C)(i), declarations filed under sub- transaction under this paragraph by sub- section (b)(1)(C)(v), and non-notified and mitting a written notice of the trans- non-declared transactions identified under action to the Chairperson of the Com- subsection (b)(1)(H). mittee. (7) Foreign government-controlled transaction (II) Comments and acceptance The term ‘‘foreign government-controlled (aa) In general transaction’’ means any covered transaction Subject to item (cc), the Committee that could result in the control of any United shall provide comments on a draft or States business by a foreign government or an formal written notice or accept a for- Page 1123 TITLE 50—WAR AND NATIONAL DEFENSE § 4565 mal written notice submitted under (III) Committee response to declaration subclause (I) with respect to a covered (aa) In general transaction not later than the date that is 10 business days after the date Upon receiving a declaration under of submission of the draft or formal this clause with respect to a covered written notice. transaction, the Committee may, at the discretion of the Committee— (bb) Completeness (AA) request that the parties to If the Committee determines that a the transaction file a written notice draft or formal written notice de- under clause (i); scribed in item (aa) is not complete, (BB) inform the parties to the the Committee shall notify the party transaction that the Committee is or parties to the transaction in writing not able to complete action under that the notice is not complete and this section with respect to the provide an explanation of all material transaction on the basis of the dec- respects in which the notice is incom- laration and that the parties may plete. file a written notice under clause (i) to seek written notification from the (cc) Stipulations required Committee that the Committee has The timing requirement under item completed all action under this sec- (aa) shall apply only in a case in which tion with respect to the transaction; the parties stipulate under clause (vi) (CC) initiate a unilateral review of that the transaction is a covered trans- the transaction under subparagraph action. (D); or (DD) notify the parties in writing (ii) Withdrawal of notice that the Committee has completed No covered transaction for which a no- all action under this section with re- tice was submitted under clause (i) may be spect to the transaction. withdrawn from review, unless a written (bb) Timing request for such withdrawal is submitted to the Committee by any party to the The Committee shall take action transaction and approved by the Com- under item (aa) not later than 30 days mittee. after receiving a declaration under this clause. (iii) Continuing discussions (cc) Rule of construction A request for withdrawal under clause Nothing in this subclause (other than (ii) shall not be construed to preclude any item (aa)(CC)) shall be construed to af- party to the covered transaction from con- fect the authority of the President or tinuing informal discussions with the the Committee to take any action au- Committee or any member thereof regard- thorized by this section with respect to ing possible resubmission for review pursu- a covered transaction. ant to this paragraph. (IV) Mandatory declarations (iv) Inclusion of partnership and side (aa) Regulations agreements The Committee shall prescribe regu- The Committee may require a written lations specifying the types of covered notice submitted under clause (i) to in- transactions for which the Committee clude a copy of any partnership agree- requires a declaration under this sub- ments, integration agreements, or other clause. side agreements relating to the trans- action, as specified in regulations pre- (bb) Certain covered transactions with scribed by the Committee. foreign government interests (v) Declarations for certain covered trans- (AA) In general actions Except as provided in subitem (I) In general (BB), the parties to a covered trans- action shall submit a declaration de- A party to any covered transaction scribed in subclause (I) with respect may submit to the Committee a declara- to the transaction if the transaction tion with basic information regarding involves an investment that results the transaction instead of a written no- in the acquisition, directly or indi- tice under clause (i). rectly, of a substantial interest in a (II) Regulations United States business described in subsection (a)(4)(B)(iii) by a foreign The Committee shall prescribe regula- person in which a foreign govern- tions establishing requirements for dec- ment has, directly or indirectly, a larations submitted under this clause. In substantial interest. prescribing such regulations, the Com- mittee shall ensure that such declara- (BB) Substantial interest defined tions are submitted as abbreviated noti- In this item, the term ‘‘substantial fications that would not generally ex- interest’’ has the meaning given that ceed 5 pages in length. term in regulations which the Com-

§ 4565 TITLE 50—WAR AND NATIONAL DEFENSE Page 1124 mittee shall prescribe. In developing require a declaration to be submitted those regulations, the Committee under this subclause with respect to shall consider the means by which a a covered transaction more than 45 foreign government could influence days before the completion of the the actions of a foreign person, in- transaction. cluding through board membership, (BB) Refiling of declaration ownership interest, or shareholder rights. An interest that is excluded The Committee may not request or under subparagraph (D) of subsection recommend that a declaration sub- (a)(4) from the term ‘‘other invest- mitted under this subclause be with- ment’’ as used in subparagraph drawn and refiled, except to permit (B)(iii) of that subsection or that is parties to a covered transaction to less than a 10 percent voting interest correct material errors or omissions shall not be considered a substantial in the declaration submitted with re- interest. spect to that transaction. (CC) Waiver (gg) Penalties The Committee may waive, with The Committee may impose a pen- respect to a foreign person, the re- alty pursuant to subsection (h)(3) with quirement under subitem (AA) for respect to a party that fails to comply the submission of a declaration de- with this subclause. scribed in subclause (I) if the Com- (vi) Stipulations regarding transactions mittee determines that the foreign (I) In general person demonstrates that the invest- ments of the foreign person are not In a written notice submitted under directed by a foreign government and clause (i) or a declaration submitted the foreign person has a history of under clause (v) with respect to a trans- cooperation with the Committee. action, a party to the transaction may— (cc) Other declarations required by (aa) stipulate that the transaction is Committee a covered transaction; and (bb) if the party stipulates that the The Committee may require the sub- transaction is a covered transaction mission of a declaration described in under item (aa), stipulate that the subclause (I) with respect to any cov- transaction is a foreign government- ered transaction identified under regu- controlled transaction. lations prescribed by the Committee for purposes of this item, at the discre- (II) Basis for stipulation tion of the Committee, that involves a A written notice submitted under United States business described in clause (i) or a declaration submitted subsection (a)(4)(B)(iii)(II). under clause (v) that includes a stipula- (dd) Exception tion under subclause (I) shall include a description of the basis for the stipula- The submission of a declaration de- tion. scribed in subclause (I) shall not be re- quired pursuant to this subclause with (D) Unilateral initiation of review respect to an investment by an invest- Subject to subparagraph (G), the President ment fund if— or the Committee may initiate a review (AA) the fund is managed exclu- under subparagraph (A) of— sively by a general partner, a man- (i) any covered transaction (other than a aging member, or an equivalent; covered transaction described in subpara- (BB) the general partner, managing graph (E)); member, or equivalent is not a for- (ii) any covered transaction described in eign person; and subparagraph (E), if any party to the (CC) the investment fund satisfies, transaction submitted false or misleading with respect to any foreign person material information to the Committee in with membership as a limited part- connection with the Committee’s consider- ner on an advisory board or a com- ation of the transaction or omitted mate- mittee of the fund, the criteria speci- rial information, including material docu- fied in items (cc) and (dd) of sub- ments, from information submitted to the section (a)(4)(D)(iv). Committee; or (ee) Submission of written notice as an (iii) any covered transaction described in alternative subparagraph (E), if— Parties to a covered transaction for (I) any party to the transaction or the which a declaration is required under entity resulting from consummation of this subclause may instead elect to the transaction materially breaches a submit a written notice under clause mitigation agreement or condition de- (i). scribed in subsection (l)(3)(A); (ff) Timing and refiling of submission (II) such breach is certified to the Committee by the lead department or (AA) In general agency monitoring and enforcing such In the regulations prescribed under agreement or condition as a material item (aa), the Committee may not breach; and Page 1125 TITLE 50—WAR AND NATIONAL DEFENSE § 4565 (III) the Committee determines that mittee determines that the transaction there are no other adequate and appro- could impair national security, and that priate remedies or enforcement tools such impairment to national security available to address such breach. has not been mitigated by assurances (E) Covered transactions described provided or renewed with the approval of the Committee, as described in sub- A covered transaction is described in this section (l), during the review period subparagraph if— under paragraph (1); or (i) the Committee has informed the par- ties to the transaction in writing that the (ii) the lead agency recommends, and the Committee has completed all action under Committee concurs, that an investigation this section with respect to the trans- be undertaken. action; or (C) Timing (ii) the President has announced a deci- (i) In general sion not to exercise the President’s au- Except as provided in clause (ii), any in- thority under subsection (d) with respect vestigation under subparagraph (A) shall to the transaction. be completed before the end of the 45-day (F) Timing period beginning on the date on which the Any review under this paragraph shall be investigation commenced. completed before the end of the 45-day pe- (ii) Extension for extraordinary cir- riod beginning on the date of the acceptance cumstances of written notice under subparagraph (C) by (I) In general the chairperson, or beginning on the date of In extraordinary circumstances (as de- the initiation of the review in accordance fined by the Committee in regulations), with subparagraph (D), as applicable. the chairperson may, at the request of (G) Limit on delegation of certain authority the head of the lead agency, extend an The authority of the Committee to ini- investigation under subparagraph (A) for tiate a review under subparagraph (D) may one 15-day period. not be delegated to any person, other than (II) Nondelegation the Deputy Secretary or an appropriate The authority of the chairperson and Under Secretary of the department or agen- the head of the lead agency referred to in cy represented on the Committee. subclause (I) may not be delegated to (H) Identification of non-notified and non-de- any person other than the Deputy Sec- clared transactions retary of the Treasury or the deputy The Committee shall establish a process to head (or equivalent thereof) of the lead identify covered transactions for which— agency, as the case may be. (i) a notice under clause (i) of subpara- (III) Notification to parties graph (C) or a declaration under clause (v) If the Committee extends the deadline of that subparagraph is not submitted to under subclause (I) with respect to a cov- the Committee; and ered transaction, the Committee shall (ii) information is reasonably available. notify the parties to the transaction of (2) National security investigations the extension. (A) In general (D) Exception (i) In general In each case described in subparagraph (B), the Committee shall immediately conduct Notwithstanding subparagraph (B)(i), an an investigation of the effects of a covered investigation of a foreign government-con- transaction on the national security of the trolled transaction described in subclause United States, and take any necessary ac- (II) of subparagraph (B)(i) or a transaction tions in connection with the transaction to involving critical infrastructure described protect the national security of the United in subclause (III) of subparagraph (B)(i) States. shall not be required under this paragraph, if the Secretary of the Treasury and the (B) Applicability head of the lead agency jointly determine, Subparagraph (A) shall apply in each case on the basis of the review of the trans- in which— action under paragraph (1), that the trans- (i) a review of a covered transaction action will not impair the national secu- under paragraph (1) results in a determina- rity of the United States. tion that— (ii) Nondelegation (I) the transaction threatens to impair the national security of the United The authority of the Secretary or the States and the risk has not been miti- head of an agency referred to in clause (i) gated during or prior to the review of a may not be delegated to any person, other covered transaction under paragraph (1); than the Deputy Secretary of the Treasury (II) the transaction is a foreign govern- or the deputy head (or the equivalent ment-controlled transaction; or thereof) of the lead agency, respectively. (III) the transaction would result in (E) Guidance on certain transactions with control of any critical infrastructure of national security implications or within the United States by or on be- The Chairperson shall, not later than 180 half of any foreign person, if the Com- days after the effective date of the Foreign

§ 4565 TITLE 50—WAR AND NATIONAL DEFENSE Page 1126 Investment and National Security Act of (II) to the chair and ranking member 2007, publish in the Federal Register guid- of the Committee on Banking, Housing, ance on the types of transactions that the and Urban Affairs of the Senate and of Committee has reviewed and that have pre- any committee of the Senate having sented national security considerations, in- oversight over the lead agency; cluding transactions that may constitute (III) to the Speaker and the Minority covered transactions that would result in Leader of the House of Representatives; control of critical infrastructure relating to (IV) to the chair and ranking member United States national security by a foreign of the Committee on Financial Services government or an entity controlled by or of the House of Representatives and of acting on behalf of a foreign government. any committee of the House of Rep- (3) Certifications to Congress resentatives having oversight over the lead agency; and (A) Certified notice at completion of review (V) with respect to covered trans- or assessment actions involving critical infrastructure, Upon completion of a review under this to the members of the Senate from the subsection that concludes action under this State in which the principal place of section, or upon the Committee making a business of the acquired United States notification under paragraph person is located, and the member from (1)(C)(v)(III)(aa)(DD), the chairperson and the Congressional District in which such the head of the lead agency shall transmit a principal place of business is located. certified notice to the members of Congress (iv) Signatures; limit on delegation specified in subparagraph (C)(iii). (I) In general (B) Certified report at completion of inves- Each certified notice and report re- tigation quired under subparagraphs (A) and (B), As soon as is practicable after completion respectively, shall be signed by the of an investigation under subsection (b) that chairperson and the head of the lead concludes action under this section, the agency, which signature requirement chairperson and the head of the lead agency may only be delegated in accordance shall transmit to the members of Congress with subclause (II). specified in subparagraph (C)(iii) a certified (II) Delegation of certifications written report (consistent with the require- (aa) In general ments of subsection (c)) on the results of the Subject to item (bb), the chair- investigation, unless the matter under in- person, in consultation with the Com- vestigation has been sent to the President mittee, may determine the level of of- for decision. ficial to whom the signature require- (C) Certification procedures ment under subclause (I) for the chair- (i) In general person and the head of the lead agency Each certified notice and report required may be delegated. The level of official under subparagraphs (A) and (B), respec- to whom the signature requirement tively, shall be submitted to the members may be delegated may differ based on of Congress specified in clause (iii), and any factor relating to a transaction shall include— that the chairperson, in consultation (I) a description of the actions taken with the Committee, deems appro- by the Committee with respect to the priate, including the type or value of transaction; the transaction. (II) a certification that all relevant na- (bb) Limitation on delegation with re- tional security factors have received full spect to certain transactions consideration; and The signature requirement under (III) whether the transaction is de- subclause (I) may be delegated not scribed under clause (i), (ii), (iii), (iv), or below the level of the Assistant Sec- (v) of subsection (a)(4)(B). retary of the Treasury or an equivalent (ii) Content of certification official of the lead agency. Each certified notice and report required (v) Authority to consolidate documents under subparagraphs (A) and (B), respec- Instead of transmitting a separate cer- tively, shall be signed by the chairperson tified notice or certified report under sub- and the head of the lead agency, and shall paragraph (A) or (B) with respect to each state that, in the determination of the covered transaction, the Committee may, Committee, there are no unresolved na- on a monthly basis, transmit such notices tional security concerns with the trans- and reports in a consolidated document to action that is the subject of the notice or the Members of Congress specified in report. clause (iii). (iii) Members of Congress (4) Analysis by Director of National Intel- ligence Each certified notice and report required under subparagraphs (A) and (B), respec- (A) Analysis required tively, shall be transmitted— (i) In general (I) to the Majority Leader and the Mi- Except as provided in subparagraph (B), nority Leader of the Senate; the Director of National Intelligence shall Page 1127 TITLE 50—WAR AND NATIONAL DEFENSE § 4565 expeditiously carry out a thorough anal- (D) Interaction with intelligence community ysis of any threat to the national security The Director of National Intelligence shall of the United States posed by any covered ensure that the intelligence community re- transaction, which shall include the iden- mains engaged in the collection, analysis, tification of any recognized gaps in the and dissemination to the Committee of any collection of intelligence relevant to the additional relevant information that may analysis. become available during the course of any (ii) Views of intelligence community investigation conducted under subsection (b) The Director shall seek and incorporate with respect to a transaction. into the analysis required by clause (i) the (E) Independent role of Director views of all affected or appropriate agen- The Director of National Intelligence shall cies of the intelligence community with be a nonvoting, ex officio member of the respect to the transaction. Committee, and shall be provided with all (iii) Updates notices received by the Committee under At the request of the lead agency, the paragraph (1)(C) regarding covered trans- Director shall update the analysis con- actions, but shall serve no policy role on the ducted under clause (i) with respect to a Committee, other than to provide analysis covered transaction with respect to which under subparagraphs (A) and (C) in connec- an agreement was entered into under sub- tion with a covered transaction. section (l)(3)(A). (F) Assessment of operational impact (iv) Independence and objectivity The Director may provide to the Com- mittee an assessment, separate from the The Committee shall ensure that its analyses under subparagraphs (A) and (B), of processes under this section preserve the any operational impact of a covered trans- ability of the Director to conduct analysis action on the intelligence community and a under clause (i) that is independent, objec- description of any actions that have been or tive, and consistent with all applicable di- will be taken to mitigate any such impact. rectives, policies, and analytic tradecraft standards of the intelligence community. (G) Submission to Congress (B) Basic threat information The Committee shall submit the analysis required by subparagraph (A) with respect to (i) In general a covered transaction to the Select Com- The Director of National Intelligence mittee on Intelligence of the Senate and the may provide the Committee with basic in- Permanent Select Committee on Intel- formation regarding any threat to the na- ligence of the House of Representatives upon tional security of the United States posed the conclusion of action under this section by a covered transaction described in (other than compliance plans under sub- clause (ii) instead of conducting the anal- section (l)(6)) with respect to the trans- ysis required by subparagraph (A). action. (ii) Covered transaction described (5) Submission of additional information A covered transaction is described in No provision of this subsection shall be con- this clause if— strued as prohibiting any party to a covered (I) the transaction is described in sub- transaction from submitting additional infor- section (a)(4)(B)(ii); mation concerning the transaction, including (II) the Director of National Intel- any proposed restructuring of the transaction ligence has completed an analysis pursu- or any modifications to any agreements in ant to subparagraph (A) involving each connection with the transaction, while any re- foreign person that is a party to the view or investigation of the transaction is on- transaction during the 12 months pre- going. ceding the review or investigation of the (6) Notice of results to parties transaction under this section; or The Committee shall notify the parties to a (III) the transaction otherwise meets covered transaction of the results of a review criteria agreed upon by the Committee or investigation under this section, promptly and the Director for purposes of this sub- upon completion of all action under this sec- paragraph. tion. (C) Timing (7) Regulations The analysis required under subparagraph Regulations prescribed under this section (A) shall be provided by the Director of Na- shall include standard procedures for— tional Intelligence to the Committee not (A) submitting any notice of a covered later than 30 days after the date on which transaction to the Committee; notice of the transaction is accepted by the (B) submitting a request to withdraw a Committee under paragraph (1)(C), but such covered transaction from review; analysis may be supplemented or amended, (C) resubmitting a notice of a covered as the Director considers necessary or appro- transaction that was previously withdrawn priate, or upon a request for additional in- from review; and formation by the Committee. The Director (D) providing notice of the results of a re- may begin the analysis at any time prior to view or investigation to the parties to the acceptance of the notice, in accordance with covered transaction, upon completion of all otherwise applicable law. action under this section.

§ 4565 TITLE 50—WAR AND NATIONAL DEFENSE Page 1128 (8) Tolling of deadlines during lapse in appro- dent considers appropriate to suspend or pro- priations hibit any covered transaction that threatens Any deadline or time limitation under this to impair the national security of the United subsection shall be tolled during a lapse in ap- States. propriations. (2) Announcement by the President (c) Confidentiality of information The President shall announce the decision (1) In general on whether or not to take action pursuant to Except as provided in paragraph (2), any in- paragraph (1) with respect to a covered trans- formation or documentary material filed with action not later than 15 days after the earlier the President or the President’s designee pur- of— suant to this section shall be exempt from dis- (A) the date on which the investigation of closure under section 552 of title 5, and no such the transaction under subsection (b) is com- information or documentary material may be pleted; or made public. (B) the date on which the Committee oth- erwise refers the transaction to the Presi- (2) Exceptions dent under subsection (l)(2). Paragraph (1) shall not prohibit the disclo- (3) Enforcement sure of the following: (A) Information relevant to any adminis- The President may direct the Attorney Gen- trative or judicial action or proceeding. eral of the United States to seek appropriate (B) Information to Congress or any duly relief, including divestment relief, in the dis- authorized committee or subcommittee of trict courts of the United States, in order to Congress. implement and enforce this subsection. (C) Information important to the national (4) Findings of the President security analysis or actions of the Com- The President may exercise the authority mittee to any domestic governmental enti- conferred by paragraph (1), only if the Presi- ty, or to any foreign governmental entity of dent finds that— a United States ally or partner, under the (A) there is credible evidence that leads exclusive direction and authorization of the the President to believe that a foreign per- chairperson, only to the extent necessary for son that would acquire an interest in a national security purposes, and subject to United States business or its assets as a re- appropriate confidentiality and classifica- sult of the covered transaction might take tion requirements. action that threatens to impair the national (D) Information that the parties have con- security; and sented to be disclosed to third parties. (B) provisions of law, other than this sec- (3) Cooperation with allies and partners tion and the International Emergency Eco- (A) In general nomic Powers Act [50 U.S.C. 1701 et seq.], do not, in the judgment of the President, pro- The chairperson, in consultation with vide adequate and appropriate authority for other members of the Committee, should es- the President to protect the national secu- tablish a formal process for the exchange of rity in the matter before the President. information under paragraph (2)(C) with gov- ernments of countries that are allies or part- (5) Factors to be considered ners of the United States, in the discretion For purposes of determining whether to take of the chairperson, to protect the national action under paragraph (1), the President shall security of the United States and those consider, among other factors each of the fac- countries. tors described in subsection (f), as appropriate. (B) Requirements (e) Actions and findings nonreviewable The process established under subpara- (1) In general graph (A) should, in the discretion of the The actions of the President under para- chairperson— graph (1) of subsection (d) and the findings of (i) be designed to facilitate the harmoni- the President under paragraph (4) of sub- zation of action with respect to trends in section (d) shall not be subject to judicial re- investment and technology that could pose view. risks to the national security of the United States and countries that are allies (2) Civil actions or partners of the United States; A civil action challenging an action or find- (ii) provide for the sharing of informa- ing under this section may be brought only in tion with respect to specific technologies the United States Court of Appeals for the Dis- and entities acquiring such technologies as trict of Columbia Circuit. appropriate to ensure national security; (3) Procedures for review of privileged infor- and mation (iii) include consultations and meetings with representatives of the governments of If a civil action challenging an action or such countries on a recurring basis. finding under this section is brought, and the court determines that protected information (d) Action by the President in the administrative record, including classi- (1) In general fied or other information subject to privilege Subject to paragraph (4), the President may or protections under any provision of law, is take such action for such time as the Presi- necessary to resolve the challenge, that infor- Page 1129 TITLE 50—WAR AND NATIONAL DEFENSE § 4565 mation shall be submitted ex parte and in which shall draw on, but not be limited to, camera to the court and the court shall main- the annual report on ‘‘Adherence to and tain that information under seal. Compliance with Arms Control, Non- (4) Applicability of use of information provi- proliferation and Disarmament Agreements sions and Commitments’’ required by section 2593a of title 22; The use of information provisions of sections (B) the relationship of such country with 1806, 1825, 1845, and 1881e of this title shall not the United States, specifically on its record apply in a civil action brought under this sub- on cooperating in counter-terrorism efforts, section. which shall draw on, but not be limited to, (f) Factors to be considered the report of the President to Congress For purposes of this section, the President or under section 7120 of the Intelligence Reform the President’s designee may, taking into ac- and Terrorism Prevention Act of 2004; and count the requirements of national security, (C) the potential for transshipment or di- consider— version of technologies with military appli- (1) domestic production needed for projected cations, including an analysis of national ex- national defense requirements, port control laws and regulations; (2) the capability and capacity of domestic industries to meet national defense require- (10) the long-term projection of United ments, including the availability of human re- States requirements for sources of energy and sources, products, technology, materials, and other critical resources and material; and other supplies and services, (11) such other factors as the President or (3) the control of domestic industries and the Committee may determine to be appro- commercial activity by foreign citizens as it priate, generally or in connection with a spe- affects the capability and capacity of the cific review or investigation. United States to meet the requirements of na- (g) Additional information to Congress; confiden- tional security, tiality (4) the potential effects of the proposed or (1) Briefing requirement on request pending transaction on sales of military goods, equipment, or technology to any coun- The Committee shall, upon request from any try— Member of Congress specified in subsection (A) identified by the Secretary of State— (b)(3)(C)(iii), promptly provide briefings on a (i) under section 4605(j) 1 of this title, as covered transaction for which all action has a country that supports terrorism; concluded under this section, or on compliance (ii) under section 4605(l) 1 of this title, as with a mitigation agreement or condition im- a country of concern regarding missile posed with respect to such transaction, on a proliferation; or classified basis, if deemed necessary by the (iii) under section 4605(m) 1 of this title, sensitivity of the information. Briefings under as a country of concern regarding the pro- this paragraph may be provided to the con- liferation of chemical and biological weap- gressional staff of such a Member of Congress ons; having appropriate security clearance. (B) identified by the Secretary of Defense (2) Application of confidentiality provisions as posing a potential regional military (A) In general threat to the interests of the United States; The disclosure of information under this or subsection shall be consistent with the re- (C) listed under section 2139a(c) of title 42 quirements of subsection (c). Members of on the ‘‘Nuclear Non-Proliferation-Special Congress and staff of either House of Con- Country List’’ (15 C.F.R. Part 778, Supple- gress or any committee of Congress, shall be ment No. 4) or any successor list; subject to the same limitations on disclo- (5) the potential effects of the proposed or sure of information as are applicable under pending transaction on United States inter- subsection (c). national technological leadership in areas af- (B) Proprietary information fecting United States national security; Proprietary information which can be as- (6) the potential national security-related ef- sociated with a particular party to a covered fects on United States critical infrastructure, transaction shall be furnished in accordance including major energy assets; with subparagraph (A) only to a committee (7) the potential national security-related ef- of Congress, and only when the committee fects on United States critical technologies; provides assurances of confidentiality, un- (8) whether the covered transaction is a for- less such party otherwise consents in writ- eign government-controlled transaction, as de- ing to such disclosure. termined under subsection (b)(1)(B); (9) as appropriate, and particularly with re- (h) Regulations spect to transactions requiring an investiga- (1) In general tion under subsection (b)(1)(B), a review of the The President shall direct, subject to notice current assessment of— and comment, the issuance of regulations to (A) the adherence of the subject country to carry out this section. nonproliferation control regimes, including treaties and multilateral supply guidelines, (2) Content Regulations issued under this subsection 1 See References in Text note below. shall—

§ 4565 TITLE 50—WAR AND NATIONAL DEFENSE Page 1130 (A) provide for the imposition of civil pen- determines appropriate, generally or on a alties for any violation of this section, in- case-by-case basis. cluding any mitigation agreement entered (3) Chairperson into, conditions imposed, or order issued pursuant to this section; The Secretary of the Treasury shall serve as (B) to the extent possible— the chairperson of the Committee. (i) minimize paperwork burdens; and (4) Hiring authority (ii) coordinate reporting requirements (A) Senior officials under this section with reporting require- ments under any other provision of Fed- (i) In general eral law; Each member of the Committee shall designate an Assistant Secretary, or an (C) provide for an appropriate role for the equivalent official, who is appointed by Secretary of Labor with respect to mitiga- the President, by and with the advice and tion agreements; and consent of the Senate, to carry out such (D) provide that, in any review or inves- duties related to the Committee as the tigation of a covered transaction conducted member of the Committee may delegate. by the Committee under subsection (b), the Committee should— (ii) Department of the Treasury (i) consider the factors specified in sub- (I) In general section (f); and There shall be established in the Office (ii) as appropriate, require parties to of International Affairs at the Depart- provide to the Committee the information ment of the Treasury 2 additional posi- necessary to consider such factors. tions of Assistant Secretary of the (i) Effect on other law Treasury, who shall be appointed by the No provision of this section shall be construed President, by and with the advice and as altering or affecting any other authority, consent of the Senate, to carry out such process, regulation, investigation, enforcement duties related to the Committee as the measure, or review provided by or established Secretary of the Treasury may delegate, under any other provision of Federal law, in- consistent with this section. cluding the International Emergency Economic (II) Assistant Secretary for Investment Powers Act [50 U.S.C. 1701 et seq.], or any other Security authority of the President or the Congress under the Constitution of the United States. One of the positions of Assistant Sec- retary of the Treasury authorized under (j) Technology risk assessments subclause (I) shall be the Assistant Sec- In any case in which an assessment of the risk retary for Investment Security, whose of diversion of defense critical technology is per- duties shall be principally related to the formed by a designee of the President, a copy of Committee, as delegated by the Sec- such assessment shall be provided to any other retary of the Treasury under this sec- designee of the President responsible for review- tion. ing or investigating a transaction under this (B) Special hiring authority section. (k) Committee on Foreign Investment in the The heads of the departments and agencies United States represented on the Committee may appoint, without regard to the provisions of sections (1) Establishment 3309 through 3318 of title 5, candidates di- The Committee on Foreign Investment in rectly to positions in the competitive serv- the United States, established pursuant to Ex- ice (as defined in section 2102 of that title) in ecutive Order No. 11858, shall be a multi agen- their respective departments and agencies. cy committee to carry out this section and The primary responsibility of positions au- such other assignments as the President may thorized under the preceding sentence shall designate. be to administer this section. (2) Membership (5) Designation of lead agency The Committee shall be comprised of the fol- The Secretary of the Treasury shall des- lowing members or the designee of any such ignate, as appropriate, a member or members member: of the Committee to be the lead agency or (A) The Secretary of the Treasury. agencies on behalf of the Committee— (B) The Secretary of Homeland Security. (A) for each covered transaction, and for (C) The Secretary of Commerce. negotiating any mitigation agreements or (D) The Secretary of Defense. other conditions necessary to protect na- (E) The Secretary of State. tional security; and (F) The Attorney General of the United (B) for all matters related to the moni- States. toring of the completed transaction, to en- (G) The Secretary of Energy. sure compliance with such agreements or (H) The Secretary of Labor (nonvoting, ex conditions and with this section. officio). (I) The Director of National Intelligence (6) Other members (nonvoting, ex officio). The chairperson shall consult with the heads (J) The heads of any other executive de- of such other Federal departments, agencies, partment, agency, or office, as the President and independent establishments in any review Page 1131 TITLE 50—WAR AND NATIONAL DEFENSE § 4565 or investigation under subsection (a), as the (B) Treatment of outdated agreements or chairperson determines to be appropriate, on conditions the basis of the facts and circumstances of the The chairperson and the head of the lead covered transaction under review or investiga- agency shall periodically review the appro- tion (or the designee of any such department priateness of an agreement or condition im- or agency head). posed under subparagraph (A) and terminate, (7) Meetings phase out, or otherwise amend the agree- The Committee shall meet upon the direc- ment or condition if a threat no longer re- tion of the President or upon the call of the quires mitigation through the agreement or chairperson, without regard to section 552b of condition. title 5 (if otherwise applicable). (C) Limitations (l) Actions by the Committee to address national An agreement may not be entered into or security risks condition imposed under subparagraph (A) with respect to a covered transaction unless (1) Suspension of transactions the Committee determines that the agree- The Committee, acting through the chair- ment or condition resolves the national se- person, may suspend a proposed or pending curity concerns posed by the transaction, covered transaction that may pose a risk to taking into consideration whether the agree- the national security of the United States for ment or condition is reasonably calculated such time as the covered transaction is under to— review or investigation under subsection (b). (i) be effective; (2) Referral to President (ii) allow for compliance with the terms of the agreement or condition in an appro- The Committee may, at any time during the priately verifiable way; and review or investigation of a covered trans- (iii) enable effective monitoring of com- action under subsection (b), complete the ac- pliance with and enforcement of the terms tion of the Committee with respect to the of the agreement or condition. transaction and refer the transaction to the (D) Jurisdiction President for action pursuant to subsection (d). The provisions of section 4556(b) of this title shall apply to any mitigation agree- (3) Mitigation ment entered into or condition imposed (A) Agreements and conditions under subparagraph (A). (i) In general (4) Risk-based analysis required The Committee or a lead agency may, on (A) In general behalf of the Committee, negotiate, enter Any determination of the Committee to into or impose, and enforce any agreement suspend a covered transaction under para- or condition with any party to the covered graph (1), to refer a covered transaction to transaction in order to mitigate any risk the President under paragraph (2), or to ne- to the national security of the United gotiate, enter into or impose, or enforce any States that arises as a result of the cov- agreement or condition under paragraph ered transaction. (3)(A) with respect to a covered transaction, (ii) Abandonment of transactions shall be based on a risk-based analysis, con- ducted by the Committee, of the effects on If a party to a covered transaction has the national security of the United States of voluntarily chosen to abandon the trans- the covered transaction, which shall include action, the Committee or lead agency, as an assessment of the threat, vulnerabilities, the case may be, may negotiate, enter into and consequences to national security re- or impose, and enforce any agreement or lated to the transaction. condition with any party to the covered transaction for purposes of effectuating (B) Actions of members of the Committee such abandonment and mitigating any risk (i) In general to the national security of the United Any member of the Committee who con- States that arises as a result of the cov- cludes that a covered transaction poses an ered transaction. unresolved national security concern shall (iii) Agreements and conditions relating to recommend to the Committee that the completed transactions Committee suspend the transaction under paragraph (1), refer the transaction to the The Committee or lead agency, as the President under paragraph (2), or nego- case may be, may negotiate, enter into or tiate, enter into or impose, or enforce any impose, and enforce any agreement or con- agreement or condition under paragraph dition with any party to a completed cov- (3)(A) with respect to the transaction. In ered transaction in order to mitigate any making that recommendation, the member interim risk to the national security of the shall propose or contribute to the risk- United States that may arise as a result of based analysis required by subparagraph the covered transaction until such time (A). that the Committee has completed action pursuant to subsection (b) or the President (ii) Failure to reach consensus has taken action pursuant to subsection If the Committee fails to reach con- (d) with respect to the transaction. sensus with respect to a recommendation

§ 4565 TITLE 50—WAR AND NATIONAL DEFENSE Page 1132 under clause (i) regarding a covered trans- (ii) ensure that any material modifica- action, the members of the Committee tion to any such agreement or condition is who support an alternative recommenda- reported to the Director of National Intel- tion shall produce— ligence, the Attorney General of the (I) a written statement justifying the United States, and any other Federal de- alternative recommendation; and partment or agency that may have a mate- (II) as appropriate, a risk-based anal- rial interest in such modification. ysis that supports the alternative rec- ommendation. (C) Compliance plans (C) Definitions (i) In general For purposes of subparagraph (A), the In the case of a covered transaction with terms ‘‘threat’’, ‘‘vulnerabilities’’, and ‘‘con- respect to which an agreement is entered sequences to national security’’ shall have into under paragraph (3)(A), the Com- the meanings given those terms by the Com- mittee or lead agency, as the case may be, mittee by regulation. shall formulate, adhere to, and keep up- (5) Tracking authority for withdrawn notices dated a plan for monitoring compliance (A) In general with the agreement. If any written notice of a covered trans- (ii) Elements action that was submitted to the Committee Each plan required by clause (i) with re- under this section is withdrawn before any spect to an agreement entered into under review or investigation by the Committee paragraph (3)(A) shall include an expla- under subsection (b) is completed, the Com- nation of— mittee shall establish, as appropriate— (i) interim protections to address spe- (I) which member of the Committee cific concerns with such transaction that will have primary responsibility for have been raised in connection with any monitoring compliance with the agree- such review or investigation pending any ment; resubmission of any written notice under (II) how compliance with the agree- this section with respect to such trans- ment will be monitored; action and further action by the President (III) how frequently compliance re- under this section; views will be conducted; (ii) specific time frames for resubmitting (IV) whether an independent entity any such written notice; and will be utilized under subparagraph (E) (iii) a process for tracking any actions to conduct compliance reviews; and that may be taken by any party to the (V) what actions will be taken if the transaction, in connection with the trans- parties fail to cooperate regarding moni- action, before the notice referred to in toring compliance with the agreement. clause (ii) is resubmitted. (D) Effect of lack of compliance (B) Designation of agency If, at any time after a mitigation agree- The lead agency, other than any entity of ment or condition is entered into or imposed the intelligence community, shall, on behalf under paragraph (3)(A), the Committee or of the Committee, ensure that the require- lead agency, as the case may be, determines ments of subparagraph (A) with respect to that a party or parties to the agreement or any covered transaction that is subject to condition are not in compliance with the such subparagraph are met. terms of the agreement or condition, the (6) Negotiation, modification, monitoring, and Committee or lead agency may, in addition enforcement to the authority of the Committee to impose (A) Designation of lead agency penalties pursuant to subsection (h)(3) and to unilaterally initiate a review of any cov- The lead agency shall negotiate, modify, ered transaction under subsection monitor, and enforce, on behalf of the Com- (b)(1)(D)(iii)— mittee, any agreement entered into or con- (i) negotiate a plan of action for the dition imposed under paragraph (3) with re- party or parties to remediate the lack of spect to a covered transaction, based on the compliance, with failure to abide by the expertise with and knowledge of the issues plan or otherwise remediate the lack of related to such transaction on the part of compliance serving as the basis for the the designated department or agency. The Committee to find a material breach of the lead agency may, at its discretion, seek and agreement or condition; receive the assistance of other departments (ii) require that the party or parties sub- or agencies in carrying out the purposes of mit a written notice under clause (i) of this paragraph. subsection (b)(1)(C) or a declaration under (B) Reporting by designated agency clause (v) of that subsection with respect The lead agency in connection with any to a covered transaction initiated after the agreement entered into or condition imposed date of the determination of noncompli- with respect to a covered transaction shall— ance and before the date that is 5 years (i) provide periodic reports to the Com- after the date of the determination to the mittee on any material modification to Committee to initiate a review of the any such agreement or condition imposed transaction under subsection (b); or with respect to the transaction; and (iii) seek injunctive relief. Page 1133 TITLE 50—WAR AND NATIONAL DEFENSE § 4565 (E) Use of independent entities to monitor with which the transaction was entered compliance into or intended to be entered into; and If the parties to an agreement entered into (iv) information about any withdrawal under paragraph (3)(A) enter into a contract from the process. with an independent entity from outside the (B) Specific, cumulative, and, as appro- United States Government for the purpose of priate, trend information on the numbers of monitoring compliance with the agreement, filings, investigations, withdrawals, and de- the Committee shall take such action as is cisions or actions by the President under necessary to prevent a conflict of interest this section. from arising by ensuring that the inde- (C) Cumulative and, as appropriate, trend pendent entity owes no fiduciary duty to the information on the business sectors involved parties. in the filings which have been made, and the (F) Successors and assigns countries from which the investments have originated. Any agreement or condition entered into (D) Information on whether companies or imposed under paragraph (3)(A) shall be that withdrew notices to the Committee in considered binding on all successors and as- accordance with subsection (b)(1)(C)(ii) have signs unless and until the agreement or con- later refiled such notices, or, alternatively, dition terminates on its own terms or is oth- abandoned the transaction. erwise terminated by the Committee in its (E) The types of security arrangements sole discretion. and conditions the Committee has used to (G) Additional compliance measures mitigate national security concerns about a Subject to subparagraphs (A) through (F), transaction, including a discussion of the the Committee shall develop and agree upon methods that the Committee and any lead methods for evaluating compliance with any agency are using to determine compliance agreement entered into or condition imposed with such arrangements or conditions. (F) A detailed discussion of all perceived with respect to a covered transaction that adverse effects of covered transactions on will allow the Committee to adequately en- the national security or critical infrastruc- sure compliance without unnecessarily di- ture of the United States that the Com- verting Committee resources from assessing mittee will take into account in its delibera- any new covered transaction for which a tions during the period before delivery of the written notice under clause (i) of subsection next report, to the extent possible. (b)(1)(C) or declaration under clause (v) of (G) Statistics on compliance plans con- that subsection has been filed, and if nec- ducted and actions taken by the Committee essary, reaching a mitigation agreement under subsection (l)(6), including subpara- with or imposing a condition on a party to graph (D) of that subsection, during that pe- such covered transaction or any covered riod, a general assessment of the compliance transaction for which a review has been re- of parties with agreements entered into and opened for any reason. conditions imposed under subsection (l)(3)(A) (m) Annual report to Congress that are in effect during that period, includ- (1) In general ing a description of any actions taken by the Committee to impose penalties or initiate a The chairperson shall transmit a report to unilateral review pursuant to subsection the chairman and ranking member of the com- (b)(1)(D)(iii), and any recommendations for mittee of jurisdiction in the Senate and the improving the enforcement of such agree- House of Representatives, before July 31 of ments and conditions. each year on all of the reviews and investiga- (H) Cumulative and, as appropriate, trend tions of covered transactions completed under information on the number of declarations subsection (b) during the 12-month period cov- filed under subsection (b)(1)(C)(v), the ac- ered by the report. tions taken by the Committee in response to (2) Contents of report relating to covered those declarations, the business sectors in- transactions volved in those declarations, and the coun- The annual report under paragraph (1) shall tries involved in those declarations. contain the following information, with re- (I) A description of— spect to each covered transaction, for the re- (i) the methods used by the Committee porting period: to identify non-notified and non-declared (A) A list of all notices filed and all re- transactions under subsection (b)(1)(H); views or investigations of covered trans- (ii) potential methods to improve such actions completed during the period, with— identification and the resources required (i) a description of the outcome of each to do so; and review or investigation, including whether (iii) the number of transactions identi- an agreement was entered into or condi- fied through the process established under tion was imposed under subsection (l)(3)(A) that subsection during the reporting pe- with respect to the transaction being re- riod and the number of such transactions viewed or investigated, and whether the flagged for further review. President took any action under this sec- (J) A summary of the hiring practices and tion with respect to that transaction; policies of the Committee pursuant to sub- (ii) basic information on each party to section (k)(4). each such transaction; (K) A list of the waivers granted by the (iii) the nature of the business activities Committee under subsection or products of the United States business (b)(1)(C)(v)(IV)(bb)(CC).

§ 4565 TITLE 50—WAR AND NATIONAL DEFENSE Page 1134 (3) Contents of report relating to critical tech- sponse described in subsection nologies (b)(1)(C)(v)(III); In order to assist Congress in its oversight (vi) information on the time it took the responsibilities with respect to this section, Committee to provide comments on, or to the President and such agencies as the Presi- accept, notices submitted under subsection dent shall designate shall include in the an- (b)(1)(C)(i), including— nual report submitted under paragraph (1)— (I) the average number of business days (A) an evaluation of whether there is cred- that elapsed between the date of submis- ible evidence of a coordinated strategy by 1 sion of a draft notice and the date on or more countries or companies to acquire which the Committee provided written United States companies involved in re- comments on the draft notice; (II) the average number of business search, development, or production of crit- days that elapsed between the date of ical technologies for which the United submission of a formal written notice States is a leading producer; and the date on which the Committee ac- (B) an evaluation of whether there are in- cepted or provided written comments on dustrial espionage activities directed or di- the formal written notice; and rectly assisted by foreign governments (III) if the average number of business against private United States companies days for a response by the Committee re- aimed at obtaining commercial secrets re- ported under subclause (I) or (II) exceed- lated to critical technologies; and ed 10 business days— (C) a description of the technologies rec- (aa) an explanation of the causes of ommended by the chairperson under sub- such delays, including whether such section (a)(6)(B) for identification under the delays are caused by resource short- interagency process set forth in section ages, unusual fluctuations in the vol- 4817(a) of this title. ume of notices, transaction character- (4) Form of report istics, or other factors; and (A) In general (bb) an explanation of the steps that All appropriate portions of the annual re- the Committee anticipates taking to port under paragraph (1) may be classified. mitigate the causes of such delays and An unclassified version of the report, as ap- otherwise to improve the ability of the propriate, consistent with safeguarding na- Committee to provide comments on, or tional security and privacy, shall be made to accept, notices within 10 business available to the public. days; (B) Inclusion in classified version (vii) the number of reviews or investiga- tions conducted under subsection (b); If the Committee recommends that the (viii) the number of investigations that President suspend or prohibit a covered were subject to an extension under sub- transaction because the transaction threat- section (b)(2)(C)(ii); ens to impair the national security of the (ix) information on the duration of those United States, the Committee shall, in the reviews and investigations, including the classified version of the report required median and average number of days re- under paragraph (1), notify Congress of the quired to complete those reviews and in- recommendation and, upon request, provide vestigations; a classified briefing on the recommendation. (x) the number of notices submitted (C) Inclusions in unclassified version under subsection (b)(1)(C)(i) and declara- tions submitted under subsection The unclassified version of the report re- (b)(1)(C)(v) that were rejected by the Com- quired under paragraph (1) shall include, mittee; with respect to covered transactions for the (xi) the number of such notices and dec- reporting period— larations that were withdrawn by a party (i) the number of notices submitted to the covered transaction; under subsection (b)(1)(C)(i); (xii) the number of such withdrawals (ii) the number of declarations sub- that were followed by the submission of a mitted under subsection (b)(1)(C)(v) and subsequent such notice or declaration re- the number of such declarations that were lating to a substantially similar covered required under subclause (IV) of that sub- transaction; and section; (xiii) such other specific, cumulative, or (iii) the number of declarations sub- trend information that the Committee de- mitted under subsection (b)(1)(C)(v) for termines is advisable to provide for an as- which the Committee required resubmis- sessment of the time required for reviews sion as notices under subsection and investigations of covered transactions (b)(1)(C)(i); under this section. (iv) the average number of days that elapsed between submission of a declara- (n) Certification of notices and assurances tion under subsection (b)(1)(C)(v) and the (1) In general acceptance of the declaration by the Com- Each notice, and any followup information, mittee; submitted under this section and regulations (v) the median and average number of prescribed under this section to the President days that elapsed between acceptance of a or the Committee by a party to a covered declaration by the Committee and a re- transaction, and any information submitted Page 1135 TITLE 50—WAR AND NATIONAL DEFENSE § 4565 by any such party in connection with any ac- (D) activities of the Committee under- tion for which a report is required pursuant to taken in order to— paragraph (6)(B) of subsection (l), with respect (i) educate the business community, to the implementation of any mitigation with a particular focus on the technology agreement or condition described in paragraph sector and other sectors of importance to (3)(A) of subsection (l), or any material change national security, on the goals and oper- in circumstances, shall be accompanied by a ations of the Committee; written statement by the chief executive offi- (ii) disseminate to the governments of cer or the designee of the person required to countries that are allies or partners of the submit such notice or information certifying United States best practices of the Com- that, to the best of the knowledge and belief of mittee that— that person— (I) strengthen national security re- (A) the notice or information submitted views of relevant investment trans- fully complies with the requirements of this actions; and (II) expedite such reviews when appro- section or such regulation, agreement, or priate; and condition; and (B) the notice or information is accurate (iii) promote openness to foreign invest- and complete in all material respects. ment, consistent with national security (2) Effect of failure to submit considerations. (2) Sunset The Committee may not complete a review under this section of a covered transaction and This subsection shall have no force or effect may recommend to the President that the on or after the date that is 7 years after Au- President suspend or prohibit the transaction gust 13, 2018. under subsection (d) if the Committee deter- (p) Funding mines that a party to the transaction has— (1) Establishment of Fund (A) failed to submit a statement required There is established in the Treasury of the by paragraph (1); or United States a fund, to be known as the (B) included false or misleading informa- ‘‘Committee on Foreign Investment in the tion in a notice or information described in United States Fund’’ (in this subsection re- paragraph (1) or omitted material informa- ferred to as the ‘‘Fund’’), to be administered tion from such notice or information. by the chairperson. (3) Applicability of law on fraud and false (2) Authorization of appropriations for the statements Committee The Committee shall prescribe regulations There are authorized to be appropriated to expressly providing for the application of sec- the Fund for each of fiscal years 2019 through tion 1001 of title 18, United States Code, to all 2023 $20,000,000 to perform the functions of the information provided to the Committee under Committee. this section by any party to a covered trans- (3) Filing fees action. (A) In general (o) Testimony The Committee may assess and collect a (1) In general fee in an amount determined by the Com- Not later than March 31 of each year, the mittee in regulations, to the extent provided chairperson, or the designee of the chair- in advance in appropriations Acts, without person, shall appear before the Committee on regard to section 9701 of title 31, and subject Financial Services of the House of Representa- to subparagraph (B), with respect to each tives and the Committee on Banking, Housing, covered transaction for which a written no- and Urban Affairs of the Senate to present tes- tice is submitted to the Committee under timony on— subsection (b)(1)(C)(i). The total amount of (A) anticipated resources necessary for op- fees collected under this paragraph may not erations of the Committee in the following exceed the costs of administering this sec- fiscal year at each of the departments or tion. agencies represented on the Committee; (B) Determination of amount of fee (B) the adequacy of appropriations for the (i) In general Committee in the current and the previous The amount of the fee to be assessed fiscal year to— under subparagraph (A) with respect to a (i) ensure that thorough reviews and in- covered transaction— vestigations are completed as expedi- (I) may not exceed an amount equal to tiously as possible; the lesser of— (ii) monitor and enforce mitigation (aa) 1 percent of the value of the agreements; and transaction; or (iii) identify covered transactions for (bb) $300,000, adjusted annually for which a notice under clause (i) of sub- inflation pursuant to regulations pre- section (b)(1)(C) or a declaration under scribed by the Committee; and clause (v) of that subsection was not sub- (II) shall be based on the value of the mitted to the Committee; transaction, taking into account— (C) management efforts to strengthen the (aa) the effect of the fee on small ability of the Committee to meet the re- business concerns (as defined in sec- quirements of this section; and tion 632 of title 15);

§ 4565 TITLE 50—WAR AND NATIONAL DEFENSE Page 1136 (bb) the expenses of the Committee of the Committee within the Department of associated with conducting activities the Treasury for the purpose of enhancing under this section; interagency coordination and collaboration in (cc) the effect of the fee on foreign carrying out the functions of the Committee investment; and under this section. (dd) such other matters as the Com- (2) Functions mittee considers appropriate. Functions that may be centralized under (ii) Updates paragraph (1) include identifying non-notified The Committee shall periodically recon- and non-declared transactions pursuant to sider and adjust the amount of the fee to subsection (b)(1)(H), and other functions as de- be assessed under subparagraph (A) with termined by the chairperson and the Com- respect to a covered transaction to ensure mittee. that the amount of the fee does not exceed (3) Rule of construction the costs of administering this section and otherwise remains appropriate. Nothing in this section shall be construed as (C) Deposit and availability of fees limiting the authority of any department or agency represented on the Committee to rep- Notwithstanding section 3302 of title 31, resent its own interests before the Committee. fees collected under subparagraph (A) shall— (i) be deposited into the Fund solely for (Sept. 8, 1950, ch. 932, title VII, § 721, as added use in carrying out activities under this Pub. L. 100–418, title V, § 5021, Aug. 23, 1988, 102 section; Stat. 1425; amended Pub. L. 102–484, div. A, title (ii) to the extent and in the amounts pro- VIII, § 837(a)–(c), (e), Oct. 23, 1992, 106 Stat. vided in advance in appropriations Acts, be 2463–2465; Pub. L. 102–558, title I, § 163, Oct. 28, available to the chairperson; 1992, 106 Stat. 4219; Pub. L. 103–359, title VIII, (iii) remain available until expended; and § 809(d), Oct. 14, 1994, 108 Stat. 3454; Pub. L. (iv) be in addition to any appropriations 110–49, §§ 2–7(b), 8–10, July 26, 2007, 121 Stat. 246, made available to the members of the 252–257, 259; Pub. L. 115–232, div. A, title XVII, Committee. §§ 1703–1717(a), 1718, 1719(a), 1720, 1721(c), (D) Study on prioritization fee 1723–1725, Aug. 13, 2018, 132 Stat. 2177–2193, 2197, (i) In general 2202, 2204–2206; Pub. L. 116–283, div. H, title XCVII, § 9721(a), Jan. 1, 2021, 134 Stat. 4839.) Not later than 270 days after August 13, 2018, the chairperson, in consultation with Editorial Notes the Committee, shall complete a study of the feasibility and merits of establishing a REFERENCES IN TEXT fee or fee scale to prioritize the timing of Section 1727 of the Foreign Investment Risk Review the response of the Committee to a draft Modernization Act of 2018, referred to in subsec. or formal written notice during the period (a)(4)(A)(ii), is section 1727 of Pub. L. 115–232. Section before the Committee accepts the formal 1727(a), (b) of Pub. L. 115–232 is set out as an Effective written notice under subsection Date of 2018 Amendment note under this section. (b)(1)(C)(i), in the event that the Com- For the effective date of the Foreign Investment and mittee is unable to respond during the National Security Act of 2007, referred to in subsec. (b)(2)(E), see section 12 of Pub. L. 110–49, set out as an time required by subclause (II) of that sub- Effective Date of 2007 Amendment note under section section because of an unusually large in- 5315 of Title 5, Government Organization and Employ- flux of notices, or for other reasons. ees. (ii) Submission to Congress The International Emergency Economic Powers Act, referred to in subsecs. (d)(4)(B) and (i), is title II of Pub. After completing the study required by L. 95–223, Dec. 28, 1977, 91 Stat. 1626, which is classified clause (i), the chairperson, or a designee of generally to chapter 35 (§ 1701 et seq.) of this title. For the chairperson, shall submit to the Com- complete classification of this Act to the Code, see mittee on Banking, Housing, and Urban Short Title note set out under section 1701 of this title Affairs of the Senate and the Committee and Tables. on Financial Services of the House of Rep- Section 4605 of this title, referred to in subsec. resentatives a report on the findings of the (f)(4)(A), was repealed by Pub. L. 115–232, div. A, title study. XVII, § 1766(a), Aug. 13, 2018, 132 Stat. 2232.

Section 7120 of the Intelligence Reform and Ter- (4) Transfer of funds rorism Prevention Act of 2004, referred to in subsec. To the extent provided in advance in appro- (f)(9)(B), is section 7120 of Pub. L. 108–458, title VII, Dec. priations Acts, the chairperson may transfer 17, 2004, 118 Stat. 3803, which is not classified to the any amounts in the Fund to any other depart- Code. Executive Order 11858, referred to in subsec. (k)(1), is ment or agency represented on the Committee set out as a note under this section. for the purpose of addressing emerging needs in carrying out activities under this section. CODIFICATION Amounts so transferred shall be in addition to Section was formerly classified to section 2170 of the any other amounts available to that depart- former Appendix to this title prior to editorial reclassi- ment or agency for that purpose. fication and renumbering as this section. (q) Centralization of certain Committee func- AMENDMENTS tions 2021—Subsec. (b)(3)(A). Pub. L. 116–283, § 9721(a)(1), in- (1) In general serted ‘‘or assessment’’ after ‘‘review’’ in heading and The chairperson, in consultation with the substituted ‘‘this subsection that concludes action Committee, may centralize certain functions under this section, or upon the Committee making a Page 1137 TITLE 50—WAR AND NATIONAL DEFENSE § 4565 notification under paragraph (1)(C)(v)(III)(aa)(DD)’’ for Subsec. (b)(4)(A). Pub. L. 115–232, § 1712(1), added sub- ‘‘ subsection (b) that concludes action under this sec- par. (A) and struck out former subpar. (A). Prior to tion’’ in text. amendment, text read as follows: ‘‘The Director of Na- Subsec. (b)(3)(C)(i)(III). Pub. L. 116–283, § 9721(a)(2), tional Intelligence shall expeditiously carry out a thor- added subcl. (III). ough analysis of any threat to the national security of 2018—Subsec. (a). Pub. L. 115–232, § 1703, amended sub- the United States posed by any covered transaction. sec. (a) generally. Prior to amendment, subsec. (a) de- The Director of National Intelligence shall also seek fined the terms ‘‘Committee’’, ‘‘chairperson’’, ‘‘con- and incorporate the views of all affected or appropriate trol’’, ‘‘covered transaction’’, ‘‘foreign government-con- intelligence agencies with respect to the transaction.’’ trolled transaction’’, ‘‘critical infrastructure’’, ‘‘crit- Subsec. (b)(4)(B) to (E). Pub. L. 115–232, § 1712(2)–(4), ical technologies’’, and ‘‘lead agency’’ for purposes of added subpar. (B), redesignated former subpars. (B) to this section, and clarified construction of the term ‘‘na- (D) as (C) to (E), respectively, and in subpar. (C) sub- tional security’’ for purposes of this section. stituted ‘‘30’’ for ‘‘20’’. Subsec. (b)(1)(C)(i). Pub. L. 115–232, § 1704, designated Subsec. (b)(4)(F), (G). Pub. L. 115–232, § 1712(5), added existing provisions as subcl. (I), inserted heading, and subpars. (F) and (G). added subcl. (II). Subsec. (b)(8). Pub. L. 115–232, § 1709(3), added par. (8). Subsec. (b)(1)(C)(iv) to (vi). Pub. L. 115–232, Subsec. (c)(1). Pub. L. 115–232, § 1713(1), (2), designated §§ 1705–1707, added cls. (iv) to (vi). existing provisions as par. (1), inserted heading, sub- Subsec. (b)(1)(D). Pub. L. 115–232, § 1708(2)(A), sub- stituted ‘‘Except as provided in paragraph (2), any in- stituted ‘‘subparagraph (G)’’ for ‘‘subparagraph (F)’’ in formation’’ for ‘‘Any information’’, and struck out at introductory provisions. end ‘‘, except as may be relevant to any administrative Subsec. (b)(1)(D)(i). Pub. L. 115–232, § 1708(2)(B), in- or judicial action or proceeding. Nothing in this sub- serted ‘‘(other than a covered transaction described in section shall be construed to prevent disclosure to ei- subparagraph (E))’’ after ‘‘any covered transaction’’. ther House of Congress or to any duly authorized com- Subsec. (b)(1)(D)(ii). Pub. L. 115–232, § 1708(2)(C), added mittee or subcommittee of the Congress.’’ cl. (ii) and struck out former cl. (ii) which read as fol- Subsec. (c)(2), (3). Pub. L. 115–232, § 1713(3), added pars. lows: ‘‘any covered transaction that has previously (2) and (3). been reviewed or investigated under this section, if any Subsec. (d)(2). Pub. L. 115–232, § 1714, substituted party to the transaction submitted false or misleading ‘‘with respect to a covered transaction not later than 15 material information to the Committee in connection days after the earlier of— with the review or investigation or omitted material ‘‘(A) the date on which the investigation of the information, including material documents, from infor- transaction under subsection (b) is completed; or mation submitted to the Committee; or’’. ‘‘(B) the date on which the Committee otherwise re- Subsec. (b)(1)(D)(iii). Pub. L. 115–232, § 1708(2)(D)(i), fers the transaction to the President under sub- substituted ‘‘any covered transaction described in sub- section (l)(2)’’ paragraph (E),’’ for ‘‘any covered transaction that has for ‘‘not later than 15 days after the date on which an previously been reviewed or investigated under this investigation described in subsection (b) is completed’’. section,’’ in introductory provisions. Subsec. (d)(4)(A). Pub. L. 115–232, § 1725(2), substituted Subsec. (b)(1)(D)(iii)(I). Pub. L. 115–232, § 1725(1)(A), ‘‘a foreign person that would acquire an interest in a substituted ‘‘subsection (l)(3)(A)’’ for ‘‘subsection United States business or its assets as a result of the (l)(1)(A)’’. covered transaction’’ for ‘‘the foreign interest exer- Pub. L. 115–232, § 1708(2)(D)(ii), struck out ‘‘inten- cising control’’. tionally’’ before ‘‘materially breaches’’. Subsec. (e). Pub. L. 115–232, § 1715, designated existing Subsec. (b)(1)(D)(iii)(II). Pub. L. 115–232, provisions as par. (1), inserted heading, and added pars.

§ 1708(2)(D)(iii), substituted ‘‘a material breach’’ for ‘‘an (2) to (4). intentional material breach’’. Subsec. (h)(2). Pub. L. 115–232, § 1716(1), (2), redesig- Subsec. (b)(1)(D)(iii)(III). Pub. L. 115–232, nated par. (3) as (2) and struck out former par. (2). Prior

§ 1708(2)(D)(iv), inserted ‘‘adequate and appropriate’’ be- to amendment, text read as follows: ‘‘Regulations fore ‘‘remedies or enforcement tools’’. issued under this section shall become effective not Subsec. (b)(1)(E). Pub. L. 115–232, § 1708(3), added sub- later than 180 days after the effective date of the For- par. (E). Former subpar. (E) redesignated (F). eign Investment and National Security Act of 2007.’’ Subsec. (b)(1)(F). Pub. L. 115–232, § 1709(1), which di- Subsec. (h)(2)(A). Pub. L. 115–232, § 1716(3)(A), sub- rected the substitution of ‘‘45’’ for ‘‘30’’, was executed stituted ‘‘including any mitigation agreement entered by substituting ‘‘45-day’’ for ‘‘30-day’’, to reflect the into, conditions imposed, or order issued pursuant to probable intent of Congress. this section’’ for ‘‘including any mitigation agreement Pub. L. 115–232, § 1708(1), redesignated subpar. (E) as entered into or conditions imposed pursuant to sub- (F). Former subpar. (F) redesignated (G). section (l)’’. Subsec. (b)(1)(G). Pub. L. 115–232, § 1708(1), redesig- Subsec. (h)(2)(D). Pub. L. 115–232, § 1716(3)(B)–(D), nated subpar. (F) as (G). added subpar. (D). Subsec. (b)(1)(H). Pub. L. 115–232, § 1710, added subpar. Subsec. (h)(3). Pub. L. 115–232, § 1716(2), redesignated (H). par. (3) as (2). Subsec. (b)(2)(B)(i)(I). Pub. L. 115–232, § 1725(1)(B), sub- Subsec. (j). Pub. L. 115–232, § 1725(3), substituted stituted ‘‘the risk’’ for ‘‘that threat’’. ‘‘transaction’’ for ‘‘merger, acquisition, or takeover’’. Subsec. (b)(2)(C). Pub. L. 115–232, § 1709(2), added sub- Subsec. (k)(4). Pub. L. 115–232, § 1717(a), added par. (4) par. (C) and struck out former subpar. (C). Prior to and struck out former par. (4). Prior to amendment, amendment, text read as follows: ‘‘Any investigation text read as follows: ‘‘There shall be established an ad- under subparagraph (A) shall be completed before the ditional position of Assistant Secretary of the Treas- end of the 45-day period beginning on the date on which ury, who shall be appointed by the President, by and the investigation commenced.’’ with the advice and consent of the Senate. The Assist- Subsec. (b)(3)(C)(i)(II). Pub. L. 115–232, § 1711(1), added ant Secretary appointed under this paragraph shall re- subcl. (II) and struck out former subcl. (II) which read port directly to the Undersecretary of the Treasury for as follows: ‘‘identification of the determinative factors International Affairs. The duties of the Assistant Sec- considered under subsection (f).’’ retary shall include duties related to the Committee on Subsec. (b)(3)(C)(iv)(II). Pub. L. 115–232, § 1711(2), Foreign Investment in the United States, as delegated added subcl. (II) and struck out former subcl. (II) which by the Secretary of the Treasury under this section.’’ was comprised of introductory provisions and items Subsec. (l). Pub. L. 115–232, § 1718(1), substituted ‘‘Ac- (aa) and (bb) relating to limitation on delegation of tions by the Committee to address national security certifications. risks’’ for ‘‘Mitigation, tracking, and Subsec. (b)(3)(C)(v). Pub. L. 115–232, § 1711(3), added cl. postconsummation monitoring and enforcement’’ in (v). heading.

§ 4565 TITLE 50—WAR AND NATIONAL DEFENSE Page 1138 Subsec. (l)(1), (2). Pub. L. 115–232, § 1718(3), added pars. (A) and (B), respectively, of par. (1), and added pars. (2) (1) and (2). Former pars. (1) and (2) redesignated (3) and and (3). (5), respectively. Subsec. (o). Pub. L. 115–232, § 1721(c), added subsec. (o). Subsec. (l)(3). Pub. L. 115–232, § 1718(2), redesignated Subsec. (p). Pub. L. 115–232, § 1723, added subsec. (p). par. (1) as (3). Former par. (3) redesignated (6). Subsec. (q). Pub. L. 115–232, § 1724, added subsec. (q). Subsec. (l)(3)(A). Pub. L. 115–232, § 1718(4)(A), sub- 2007—Subsec. (a). Pub. L. 110–49, § 2, added subsec. (a) stituted ‘‘Agreements and conditions’’ for ‘‘In general’’ and struck out former subsec. (a). Prior to amendment, in subpar. heading, designated existing provisions as cl. text read as follows: ‘‘The President or the President’s (i), inserted cl. heading, substituted ‘‘risk’’ for designee may make an investigation to determine the ‘‘threat’’, and added cls. (ii) and (iii). effects on national security of mergers, acquisitions, Subsec. (l)(3)(B) to (D). Pub. L. 115–232, § 1718(4)(B), and takeovers proposed or pending on or after August added subpars. (B) to (D) and struck out former subpar. 23, 1988, by or with foreign persons which could result (B). Prior to amendment, text of subpar. (B) read as fol- in foreign control of persons engaged in interstate com- lows: ‘‘Any agreement entered into or condition im- merce in the United States. If it is determined that an posed under subparagraph (A) shall be based on a risk- investigation should be undertaken, it shall commence based analysis, conducted by the Committee, of the no later than 30 days after receipt by the President or threat to national security of the covered trans- the President’s designee of written notification of the action.’’. proposed or pending merger, acquisition, or takeover as Subsec. (l)(4). Pub. L. 115–232, § 1718(5), added par. (4). prescribed by regulations promulgated pursuant to this Subsec. (l)(5). Pub. L. 115–232, § 1718(2), redesignated section. Such investigation shall be completed no later par. (2) as (5). than 45 days after such determination.’’ Subsec. (l)(5)(B). Pub. L. 115–232, § 1718(6), struck out Subsec. (b). Pub. L. 110–49, § 2, added subsec. (b) and ‘‘(as defined in the National Security Act of 1947)’’ after struck out former subsec. (b). Prior to amendment, text ‘‘intelligence community’’. read as follows: ‘‘The President or the President’s des- Subsec. (l)(6). Pub. L. 115–232, § 1718(2), redesignated ignee shall make an investigation, as described in sub- par. (3) as (6). section (a), in any instance in which an entity con- Subsec. (l)(6)(A). Pub. L. 115–232, § 1718(7)(A), sub- trolled by or acting on behalf of a foreign government stituted ‘‘paragraph (3)’’ for ‘‘paragraph (1)’’ and ‘‘The seeks to engage in any merger, acquisition, or takeover lead agency may, at its discretion, seek and receive the which could result in control of a person engaged in assistance of other departments or agencies in carrying interstate commerce in the United States that could out the purposes of this paragraph’’ for ‘‘Nothing in affect the national security of the United States. Such this paragraph shall prohibit other departments or investigation shall— agencies in assisting the lead agency in carrying out ‘‘(1) commence not later than 30 days after receipt the purposes of this paragraph’’. by the President or the President’s designee of writ- Subsec. (l)(6)(B). Pub. L. 115–232, § 1718(7)(B), struck ten notification of the proposed or pending merger, out ‘‘(i) Modification reports’’ before ‘‘The lead agen- acquisition, or takeover, as prescribed by regulations cy’’, redesignated former subcls. (I) and (II) as cls. (i) promulgated pursuant to this section; and ‘‘(2) shall be completed not later than 45 days after and (ii), respectively, and struck out former cl. (ii). its commencement.’’ Prior to amendment, text of cl. (ii) read as follows: Subsec. (d). Pub. L. 110–49, § 6, added subsec. (d) and ‘‘The Committee shall develop and agree upon methods struck out former subsec. (d). Prior to amendment, text for evaluating compliance with any agreement entered read as follows: ‘‘Subject to subsection (d), the Presi- into or condition imposed with respect to a covered dent may take such action for such time as the Presi- transaction that will allow the Committee to ade- dent considers appropriate to suspend or prohibit any quately assure compliance, without— acquisition, merger, or takeover, of a person engaged in ‘‘(I) unnecessarily diverting Committee resources interstate commerce in the United States proposed or from assessing any new covered transaction for which pending on or after August 23, 1988, by or with foreign a written notice has been filed pursuant to subsection persons so that such control will not threaten to im- (b)(1)(C), and if necessary, reaching a mitigation pair the national security. The President shall an- agreement with or imposing a condition on a party to nounce the decision to take action pursuant to this such covered transaction or any covered transaction subsection not later than 15 days after the investiga- for which a review has been reopened for any reason; tion described in subsection (a) is completed. The or President may direct the Attorney General to seek ap- ‘‘(II) placing unnecessary burdens on a party to a propriate relief, including divestment relief, in the dis- covered transaction.’’ trict courts of the United States in order to implement Subsec. (l)(6)(C) to (G). Pub. L. 115–232, § 1718(7)(C), and enforce this section.’’ added subpars. (C) to (G). Subsec. (e). Pub. L. 110–49, § 6, added subsec. (e) and Subsec. (m)(2)(A). Pub. L. 115–232, § 1719(a)(1)(A), struck out former subsec. (e). Prior to amendment, text amended subpar. (A) generally. Prior to amendment, read as follows: ‘‘The President may exercise the au- subpar. (A) read as follows: ‘‘A list of all notices filed thority conferred by subsection (c) only if the Presi- and all reviews or investigations completed during the dent finds that— period, with basic information on each party to the ‘‘(1) there is credible evidence that leads the Presi- transaction, the nature of the business activities or dent to believe that the foreign interest exercising products of all pertinent persons, along with informa- control might take action that threatens to impair tion about any withdrawal from the process, and any the national security, and decision or action by the President under this section.’’ ‘‘(2) provisions of law, other than this section and Subsec. (m)(2)(G) to (K). Pub. L. 115–232, the International Emergency Economic Powers Act

§ 1719(a)(1)(B), added subpars. (G) to (K). (50 U.S.C. 1701–1706), do not in the President’s judg- Subsec. (m)(3). Pub. L. 115–232, § 1719(a)(2), struck out ment provide adequate and appropriate authority for ‘‘(A) In general’’ before ‘‘In order to assist’’, redesig- the President to protect the national security in the nated former cls. (i) and (ii) as subpars. (A) and (B), re- matter before the President. spectively, added subpar. (C), and struck out former The provisions of subsection (d) of this section shall subpar. (B), which related to release of an unclassified not be subject to judicial review.’’ version of the report. Subsec. (f). Pub. L. 110–49, § 4(1), struck out ‘‘among Subsec. (m)(4). Pub. L. 115–232, § 1719(a)(3), added par. other factors’’ after ‘‘consider’’ in introductory provi- (4). sions. Subsec. (n). Pub. L. 115–232, § 1720, designated existing Subsec. (f)(4)(B), (C). Pub. L. 110–49, § 4(2)(A)–(C), provisions as par. (1), inserted heading, in introductory added subpar. (B) and redesignated former subpar. (B) provisions substituted ‘‘paragraph (6)(B)’’ for ‘‘para- as (C). graph (3)(B)’’ and ‘‘paragraph (3)(A)’’ for ‘‘paragraph Subsec. (f)(6) to (11). Pub. L. 110–49, § 4(2)(D)–(4), added (1)(A)’’, redesignated former pars. (1) and (2) as subpars. pars. (6) to (11). Page 1139 TITLE 50—WAR AND NATIONAL DEFENSE § 4565 Subsec. (g). Pub. L. 110–49, § 7(a), amended subsec. (g) [amending this section and enacting provisions set generally. Prior to amendment, text read as follows: out as a note under this section] and any amend- ‘‘The President shall immediately transmit to the Sec- ments made by those sections. retary of the Senate and the Clerk of the House of Rep- ‘‘(2) Section 1712 [amending this section] and the resentatives a written report of the President’s deter- amendments made by that section (except for clause mination of whether or not to take action under sub- (iii) of section 721(b)(4)(A) of the Defense Production section (d), including a detailed explanation of the find- Act of 1950 [50 U.S.C. 4565(b)(4)(A)], as added by sec- ings made under subsection (e) and the factors consid- tion 1712). ered under subsection (f). Such report shall be con- ‘‘(3) Paragraphs (1), (2), (3), (4)(A)(i), (4)(B)(i), sistent with the requirements of subsection (c) of this (4)(B)(iv)(I), (4)(B)(v), (4)(F), (5), (6), (7), (8), (9), (10), Act.’’ (11), (12), and (13) of subsection (a) of section 721 of Subsec. (h). Pub. L. 110–49, § 9, amended subsec. (h) the Defense Production Act of 1950 [50 U.S.C. 4565], as generally. Prior to amendment, text read as follows: amended by section 1703. ‘‘The President shall direct the issuance of regulations ‘‘(4) Section 721(m)(4) of the Defense Production Act to carry out this section. Such regulations shall, to the of 1950 [50 U.S.C. 4565(m)(4)], as amended by section extent possible, minimize paperwork burdens and shall 1719 (except for clauses (ii), (iii), (iv), and (v) of sub- to the extent possible coordinate reporting require- paragraph (C) of that section). ments under this section with reporting requirements ‘‘(b) DELAYED APPLICABILITY OF CERTAIN PROVI- under any other provision of Federal law.’’ SIONS.— Subsec. (i). Pub. L. 110–49, § 10, amended subsec. (i) ‘‘(1) IN GENERAL.—Any provision of or amendment generally. Prior to amendment, text read as follows: made by this subtitle [subtitle A (§§ 1701–1728) of title ‘‘Nothing in this section shall be construed to alter or XVII of div. A of Pub. L. 115–232, amending this sec- affect any existing power, process, regulation, inves- tion and enacting provisions set out as notes under tigation, enforcement measure, or review provided by this section and section 4501 of this title] not speci- any other provision of law.’’ fied in subsection (a) shall— Subsec. (k). Pub. L. 110–49, § 3, added subsec. (k) and ‘‘(A) take effect on the earlier of— struck out former subsec. (k) which defined ‘‘critical ‘‘(i) the date that is 18 months after the date of technologies’’ and required the President and such the enactment of this Act [Aug. 13, 2018]; or agencies as the President shall designate to submit ‘‘(ii) the date that is 30 days after publication in quadrennial reports, which could be classified, to Con- the Federal Register of a determination by the gress concerning credible evidence of a coordinated chairperson of the Committee on Foreign Invest- strategy by 1 or more countries or companies to ac- ment in the United States that the regulations, quire U.S. companies involved in critical technologies organizational structure, personnel, and other re- or foreign industrial espionage activities directed at sources necessary to administer the new provi- obtaining commercial secrets related to critical tech- sions are in place; and nologies. ‘‘(B) apply with respect to any covered trans- Subsec. (l). Pub. L. 110–49, § 5, added subsec. (l). action the review or investigation of which is initi- Subsec. (m). Pub. L. 110–49, § 7(b), added subsec. (m). ated under section 721 of the Defense Production Subsec. (n). Pub. L. 110–49, § 8, added subsec. (n). Act of 1950 [50 U.S.C. 4565] on or after the date de- 1994—Subsec. (k)(1)(B). Pub. L. 103–359 inserted ‘‘or di- scribed in subparagraph (A). rectly assisted’’ after ‘‘directed’’. ‘‘(2) NONDELEGATION OF DETERMINATION.—The deter- 1992—Subsecs. (b) to (e). Pub. L. 102–484, § 837(a), added mination of the chairperson of the Committee on subsec. (b) and redesignated former subsecs. (b) to (d) as Foreign Investment in the United States under para- (c) to (e), respectively. Former subsec. (e) redesignated graph (1)(A) may not be delegated.’’ (f). [Pub. L. 116–283, div. H, title XCVII, § 9721(b)(2), Jan. Subsec. (f). Pub. L. 102–484, § 837(a)(1), (b), redesig- 1, 2021, 134 Stat. 4840, provided that: ‘‘The amendments nated subsec. (e) as (f) and added pars. (4) and (5). under paragraph (1) [amending section 1727(a) of Pub. L. Former subsec. (f) redesignated (g). 115–232, set out above] shall take effect on the date of Subsec. (g). Pub. L. 102–484, § 837(c), amended subsec. enactment of the Foreign Investment Risk Review (g) generally. Prior to amendment, subsec. (g) read as Modernization Act of 2018 [Aug. 13, 2018].’’] follows: ‘‘If the President determines to take action under subsection (c), the President shall immediately transmit to the Secretary of the Senate and the Clerk EFFECTIVE DATE OF 2007 AMENDMENT of the House of Representatives a written report of the Amendment by Pub. L. 110–49 applicable after the end action which the President intends to take, including a of the 90-day period beginning on July 26, 2007, see sec- detailed explanation of the findings made under sub- tion 12 of Pub. L. 110–49, set out as a note under section section (d).’’ 5315 of Title 5, Government Organization and Employ- Pub. L. 102–484, § 837(a)(1), redesignated subsec. (f) as ees. (g). Former subsec. (g) redesignated (h). Subsecs. (h), (i). Pub. L. 102–484, § 837(a)(1), redesig- nated subsecs. (g) and (h) as (h) and (i), respectively. EFFECTIVE DATE OF 1992 AMENDMENT Subsec. (j). Pub. L. 102–484, § 837(e), added subsec. (j). Amendment by Pub. L. 102–558 deemed to have be- Subsec. (k). Pub. L. 102–558 added subsec. (k). come effective Mar. 1, 1992, see section 304 of Pub. L. 102–558, set out as a note under section 4502 of this title. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2018 AMENDMENT SEVERABILITY Pub. L. 115–232, div. A, title XVII, § 1727(a), (b), Aug. Pub. L. 115–232, div. A, title XVII, § 1728, Aug. 13, 2018, 13, 2018, 132 Stat. 2206, 2207, as amended by Pub. L. 132 Stat. 2207, provided that: ‘‘If any provision of this 116–283, div. H, title XCVII, § 9721(b)(1), Jan. 1, 2021, 134 subtitle [subtitle A (§§ 1701–1728) of title XVII of div. A Stat. 4840, provided that: of Pub. L. 115–232, amending this section and enacting ‘‘(a) IMMEDIATE APPLICABILITY OF CERTAIN PROVI- provisions set out as notes under this section and sec- SIONS.—The following shall take effect on the date of tion 4501 of this title] or an amendment made by this the enactment of this Act [Aug. 13, 2018] and, as appli- subtitle, or the application of such a provision or cable, apply with respect to any covered transaction amendment to any person or circumstance, is held to the review or investigation of which is initiated under be invalid, the application of that provision or amend- section 721 of the Defense Production Act of 1950 [50 ment to other persons or circumstances and the re- U.S.C. 4565] on or after such date of enactment: mainder of the provisions of this subtitle and the ‘‘(1) Sections 1705, 1707, 1708, 1709, 1710, 1713, 1714, amendments made by this subtitle, shall not be af- 1715, 1716, 1717, 1718, 1720, 1721, 1722, 1723, 1724, and 1725 fected thereby.’’

§ 4565 TITLE 50—WAR AND NATIONAL DEFENSE Page 1140 FINDINGS REGARDING FOREIGN INVESTMENT RISK ‘‘(1) establish procedures for the recusal of any REVIEW member of the Committee that has a conflict of in- terest with respect to a covered transaction (as de- Pub. L. 115–232, div. A, title XVII, § 1702(a), Aug. 13, fined in section 721(a) of the Defense Production Act 2018, 132 Stat. 2174, provided that: ‘‘Congress makes the of 1950 [50 U.S.C. 4565(a)], as amended by section 1703); following findings: ‘‘(2) submit to the Committee on Banking, Housing, ‘‘(1) According to a February 2016 report by the and Urban Affairs of the Senate and the Committee International Trade Administration of the Depart- on Financial Services of the House of Representatives ment of Commerce, 12,000,000 United States workers, a report describing those procedures; and equivalent to 8.5 percent of the labor force, have jobs ‘‘(3) brief the committees specified in paragraph (1) resulting from foreign investment, including 3,500,000 on the report required by paragraph (2).’’ jobs in the manufacturing sector alone. ‘‘(2) In 2016, new foreign direct investment in IMPLEMENTATION OF 2018 AMENDMENT United States manufacturing totaled $129,400,000,000. Pub. L. 115–232, div. A, title XVII, § 1721, Aug. 13, 2018, ‘‘(3) The Bureau of Economic Analysis of the De- 132 Stat. 2202, provided that: partment of Commerce concluded that, in 2015— ‘‘(a) IN GENERAL.—Not later than 180 days after the ‘‘(A) foreign-owned affiliates in the United date of the enactment of this Act [Aug. 13, 2018], the States— chairperson of the Committee on Foreign Investment ‘‘(i) contributed $894,500,000,000 in value added in the United States and the Secretary of Commerce to the United States economy; shall, in consultation with the appropriate members of ‘‘(ii) exported goods valued at $352,800,000,000, the Committee— accounting for nearly a quarter of total exports of ‘‘(1) develop plans to implement this subtitle [sub- goods from the United States; and title A (§§ 1701–1728) of title XVII of div. A of Pub. L. ‘‘(iii) undertook $56,700,000,000 in research and 115–232, amending this section and enacting provi- development; and sions set out as notes under this section and section ‘‘(B) the 7 countries investing the most in the 4501 of this title]; and United States, all of which are United States allies ‘‘(2) submit to the appropriate congressional com- (the United Kingdom, Japan, Germany, France, mittees a report on the plans developed under para- Canada, Switzerland, and the Netherlands) ac- graph (1), which shall include a description of— counted for 72.1 percent of the value added by for- ‘‘(A) the timeline and process to implement the eign-owned affiliates in the United States and more provisions of, and amendments made by, this sub- than 80 percent of research and development ex- title; penditures by such entities. ‘‘(B) any additional staff necessary to implement ‘‘(4) According to the Government Accountability the plans; and Office, from 2011 to 2016, the number of transactions ‘‘(C) the resources required to effectively imple- reviewed by the Committee on Foreign Investment in ment the plans. the United States (commonly referred to as ‘CFIUS’) ‘‘(b) ANNUAL RESOURCE NEEDS OF CFIUS MEMBER grew by 55 percent, while the staff of the Committees AGENCIES.—Not later than one year after the submis- assigned to the reviews increased by 11 percent. sion of the report under subsection (a)(2), and annually ‘‘(5) According to a February 2018 report of the Gov- thereafter for 7 years, each department or agency rep- ernment Accountability Office on the Committee on resented on the Committee on Foreign Investment in Foreign Investment in the United States the United States shall submit to the appropriate con- (GAO–18–249): ‘Officials from Treasury and other gressional committees a detailed spending plan to expe- member agencies are aware of pressures on their ditiously meet the requirements of section 721 of the CFIUS staff given the current workload and have ex- Defense Production Act of 1950 [50 U.S.C. 4565], as pressed concerns about possible workload increases.’. amended by this subtitle, including estimated expendi- The Government Accountability Office concluded: tures and staffing levels for not less than the following ‘Without attaining an understanding of the staffing fiscal year. levels needed to address the current and future ‘‘(c) TESTIMONY.—[Amended this section.] CFIUS workload, particularly if legislative changes ‘‘(d) APPROPRIATE CONGRESSIONAL COMMITTEES DE- to CFIUS’s authorities further expand its workload, FINED.—In this section, the term ‘appropriate congres- CFIUS may be limited in its ability to fulfill its ob- sional committees’ means— jectives and address threats to the national security ‘‘(1) the Committee on Banking, Housing, and of the United States.’. Urban Affairs and the Committee on Appropriations ‘‘(6) On March 30, 1954, Dwight David Eisenhower— of the Senate; and five-star general, Supreme Allied Commander, and ‘‘(2) the Committee on Financial Services and the 34th President of the United States—in his ‘Special Committee on Appropriations of the House of Rep- Message to the Congress on Foreign Economic Pol- resentatives.’’ icy’, counseled: ‘Great mutual advantages to buyer and seller, to producer and consumer, to investor and ASSESSMENT OF NEED FOR ADDITIONAL RESOURCES FOR to the community where investment is made, accrue COMMITTEE from high levels of trade and investment.’. President Pub. L. 115–232, div. A, title XVII, § 1722, Aug. 13, 2018, Eisenhower continued: ‘The internal strength of the 132 Stat. 2203, provided that: ‘‘The President shall— American economy has evolved from such a system of ‘‘(1) determine whether and to what extent the ex- mutual advantage. In the press of other problems and pansion of the responsibilities of the Committee on in the haste to meet emergencies, this nation—and Foreign Investment in the United States pursuant to many other nations of the free world—have all too the amendments made by this subtitle [subtitle A often lost sight of this central fact.’. President Eisen- (§§ 1701–1728) of title XVII of div. A of Pub. L. 115–232, hower concluded: ‘If we fail in our trade policy, we amending this section] necessitates additional re- may fail in all. Our domestic employment, our stand- sources for the Committee and the departments and ard of living, our security, and the solidarity of the agencies represented on the Committee to perform free world—all are involved.’.’’ their functions under section 721 of the Defense Pro- duction Act of 1950 [50 U.S.C. 4565], as amended by PROCEDURES FOR RECUSAL OF MEMBERS OF COMMITTEE this subtitle; and FOR CONFLICTS OF INTEREST ‘‘(2) if the President determines that additional re- Pub. L. 115–232, div. A, title XVII, § 1717(b), Aug. 13, sources are necessary, include in the budget of the 2018, 132 Stat. 2193, provided that: ‘‘Not later than 90 President for fiscal year 2019 and each fiscal year days after the date of the enactment of this Act [Aug. thereafter submitted to Congress under section 13, 2018], the Committee on Foreign Investment in the 1105(a) of title 31, United States Code, a request for United States shall— such additional resources.’’ Page 1141 TITLE 50—WAR AND NATIONAL DEFENSE § 4565 AUTHORIZATION FOR PILOT PROGRAMS SECTION 1. Policy. International investment in the United States promotes economic growth, productivity, Pub. L. 115–232, div. A, title XVII, § 1727(c), Aug. 13, competitiveness, and job creation. It is the policy of 2018, 132 Stat. 2207, provided that: ‘‘(1) IN GENERAL.—Beginning on the date of the enact- the United States to support unequivocally such in- ment of this Act [Aug. 13, 2018] and ending on the date vestment, consistent with the protection of the na- that is 570 days thereafter, the Committee on Foreign tional security. SEC. 2. Definitions. (a) The ‘‘Act’’ as used in this order Investment in the United States may, at its discretion, means section 721 of the Defense Production Act of 1950 conduct one or more pilot programs to implement any [50 U.S.C. 4565], as amended. authority provided pursuant to any provision of or (b) Terms used in this order that are defined in sub- amendment made by this subtitle [subtitle A section 721(a) of the Act [50 U.S.C. 4565(a)] shall have (§§ 1701–1728) of title XVII of div. A of Pub. L. 115–232, the same meaning in this order as they have in such amending this section and enacting provisions set out subsection. as notes under this section and section 4501 of this (c) ‘‘Risk mitigation measure’’ as used in this order title] not specified in subsection (a) [set out in an Ef- means any provision of a risk mitigation agreement or fective Date of 2018 Amendment note above]. a condition to which section 7 of this order refers. ‘‘(2) PUBLICATION IN FEDERAL REGISTER.—A pilot pro- SEC. 3. Establishment. (a) There is hereby established gram under paragraph (1) may not commence until the the Committee on Foreign Investment in the United date that is 30 days after publication in the Federal States (the ‘‘Committee’’) as provided in the Act. Register of a determination by the chairperson of the (b) In addition to the members specified in the Act, Committee of the scope of and procedures for the pilot the following heads of departments, agencies, or offices program. That determination may not be delegated.’’ shall be members of the Committee: STUDY AND REPORT ON FOREIGN DIRECT INVESTMENTS (i) The United States Trade Representative; IN UNITED STATES (ii) The Director of the Office of Science and Tech- nology Policy; and Pub. L. 110–49, § 7(c), July 26, 2007, 121 Stat. 258, pro- (iii) The heads of any other executive department, vided that: agency, or office, as the President or the Secretary of ‘‘(1) STUDY REQUIRED.—Before the end of the 120-day the Treasury determines appropriate, on a case-by-case period beginning on the date of enactment of this Act basis. [July 26, 2007] and annually thereafter, the Secretary of (c) The following officials (or their designees) shall the Treasury, in consultation with the Secretary of observe and, as appropriate, participate in and report State and the Secretary of Commerce, shall conduct a to the President on the Committee’s activities: study on foreign direct investments in the United (i) The Director of the Office of Management and States, especially investments in critical infrastruc- Budget; ture and industries affecting national security, by— (ii) The Chairman of the Council of Economic Advis- ‘‘(A) foreign governments, entities controlled by or ers; acting on behalf of a foreign government, or persons (iii) The Assistant to the President for National Se- of foreign countries which comply with any boycott curity Affairs; of Israel; or (iv) The Assistant to the President for Economic Pol- ‘‘(B) foreign governments, entities controlled by or icy; and acting on behalf of a foreign government, or persons (v) The Assistant to the President for Homeland Se- of foreign countries which do not ban organizations curity and Counterterrorism. designated by the Secretary of State as foreign ter- SEC. 4. Duties of the Secretary of the Treasury. rorist organizations. (a) The functions of the President under subsections ‘‘(2) REPORT.—Before the end of the 30-day period be- (b)(1)(A) (relating to review and consideration after no- ginning upon the date of completion of each study tification), (b)(1)(D) (relating to unilateral initiation of under paragraph (1), and thereafter in each annual re- review and consideration), and (m)(3)(A) (relating to in- port under section 721(m) of the Defense Production clusion in annual report and designation) of the Act Act of 1950 [50 U.S.C. 4565(m)] (as added by this section), [now 50 U.S.C. 4565(b)(1)(A), (D), (m)(3)(A), (B)] are as- the Secretary of the Treasury shall submit a report to signed to the Secretary of the Treasury. Congress, for transmittal to all appropriate commit- (b) The Secretary of the Treasury shall perform the tees of the Senate and the House of Representatives, function of issuance of regulations under section 721(h) containing the findings and conclusions of the Sec- of the Act [50 U.S.C. 4565(h)]. The Secretary shall con- retary with respect to the study described in paragraph sult the Committee with respect to such regulations (1), together with an analysis of the effects of such in- prior to any notice and comment and prior to their vestment on the national security of the United States issuance. and on any efforts to address those effects.’’ (c) Except as otherwise provided in the Act or this order, the chairperson shall have the authority, exclu- Executive Documents sive of the heads of departments or agencies, after con- DELEGATION OF FUNCTIONS sultation with the Committee: (i) to act, or authorize others to act, on behalf of the For delegation of functions of President under sub- Committee; and secs. (b)(1)(A), (D), (h), and (m)(3)(A) of this section, see (ii) to communicate on behalf of the Committee with section 4(a), (b) of Ex. Ord. No. 11858, May 7, 1975, 40 the Congress and the public. F.R. 20263, set out below. (d) The chairperson shall coordinate the preparation of and transmit the annual report to the Congress pro- EX. ORD. NO. 11858. FOREIGN INVESTMENT IN THE UNITED vided for in the Act and may assign to any member of STATES the Committee, as the chairperson determines appro- Ex. Ord. No. 11858, May 7, 1975, 40 F.R. 20263, as priate and consistent with the Act, responsibility for amended by Ex. Ord. No. 12188, Jan. 2, 1980, 45 F.R. 989; conducting studies and providing analyses necessary Ex. Ord. No. 12661, Dec. 27, 1988, 54 F.R. 779; Ex. Ord. No. for the preparation of the report. 12860, Sept. 3, 1993, 58 F.R. 47201; Ex. Ord. No. 13286, § 57, (e) After consultation with the Committee, the chair- Feb. 28, 2003, 68 F.R. 10629; Ex. Ord. No. 13456, § 1, Jan. person may request that the Director of National Intel- 23, 2008, 73 F.R. 4677, provided: ligence begin preparing the analysis required by the By the authority vested in me as President by the Act at any time, including prior to acceptance of the Constitution and the laws of the United States of notice of a transaction, in accordance with otherwise America, including section 721 of the Defense Produc- applicable law. The Director of National Intelligence tion Act of 1950, as amended (50 U.S.C. App. 2170) [now shall provide the Director’s analysis as soon as possible 50 U.S.C. 4565], and section 301 of title 3, United States and consistent with section 721(b)(4) of the Act [50 Code, it is hereby ordered as follows: U.S.C. 4565(b)(4)].

§ 4565 TITLE 50—WAR AND NATIONAL DEFENSE Page 1142 SEC. 5. Lead Agency. (a) The lead agency or agencies of authorities other than those provided under the Act, (‘‘lead agency’’) shall have primary responsibility, on to: behalf of the Committee, for the specific activity for (A) conduct inquiries with respect to a transaction; which the Secretary of the Treasury designates it a (B) communicate with the parties to a transaction; or lead agency. (C) negotiate, enter into, impose, or enforce contrac- (b) In acting on behalf of the Committee, the lead tual provisions with the parties to a transaction. agency shall keep the Committee fully informed of its (ii) A department or agency shall not condition ac- activities. In addition, the lead agency shall notify the tions or the exercise of authorities to which paragraph chairperson of any material action that the lead agen- (i) of this subsection refers upon the exercise, or for- cy proposes to take on behalf of the Committee, suffi- bearance in the exercise, of its authority under the Act ciently in advance to allow adequate time for the or this order, and no authority under the Act shall be chairperson to consult the Committee and provide the available for the enforcement of such actions or au- Committee’s direction to the lead agency not to take, thorities. or to amend, such action. (f) The Committee may initiate a review of a trans- SEC. 6. Reviews and Investigations. action that has previously been reviewed by the Com- (a) Any member of the Committee may conduct its mittee only in the extraordinary circumstances pro- own inquiry with respect to the potential national se- vided in the Act. curity risk posed by a transaction, but communication SEC. 8. Additional Assignments to the Committee. In ad- with the parties to a transaction shall occur through or dition to the functions assigned to the Committee by in the presence of the lead agency, or the chairperson the Act, the Committee shall review the implementa- if no lead agency has been designated. tion of the Act and this order and report thereon from (b) The Committee shall undertake an investigation time to time to the President, together with such rec- of a transaction in any case, in addition to the cir- ommendations for policy, administrative, or legislative cumstances described in the Act, in which following a proposals as the Committee determines appropriate. review a member of the Committee advises the chair- SEC. 9. Duties of the Secretary of Commerce. The Sec- person that the member believes that the transaction retary of Commerce shall: threatens to impair the national security of the United (a) obtain, consolidate, and analyze information on States and that the threat has not been mitigated. foreign investment in the United States; (c) The Committee shall send a report to the Presi- (b) monitor and, where necessary, improve procedures dent requesting the President’s decision with respect to for the collection and dissemination of information on a review or investigation of a transaction in the fol- foreign investment in the United States; lowing circumstances: (c) prepare for the public, the President or heads of (i) the Committee recommends that the President departments or agencies, as appropriate, reports, anal- suspend or prohibit the transaction; yses of trends, and analyses of significant developments (ii) the Committee is unable to reach a decision on in appropriate categories of foreign investment in the whether to recommend that the President suspend or United States; and prohibit the transaction; or (iii) the Committee requests that the President make (d) compile and evaluate data on significant trans- a determination with regard to the transaction. actions involving foreign investment in the United (d) Upon completion of a review or investigation of a States. transaction, the lead agency shall prepare for the ap- SEC. 10. General Provisions. (a) The heads of depart- proval of the chairperson the appropriate certified no- ments and agencies shall provide, as appropriate and to tice or report to the Congress called for under the Act. the extent permitted by law, such information and as- The chairperson shall transmit such notice or report to sistance as the Committee may request to implement the Congress, as appropriate. the Act and this order. SEC. 7. Risk Mitigation. (a) The Committee, or any (b) Nothing in this order shall be construed to impair lead agency acting on behalf of the Committee, may or otherwise affect: seek to mitigate any national security risk posed by a (i) authority granted by law to a department or agen- transaction that is not adequately addressed by other cy or the head thereof; provisions of law by entering into a mitigation agree- (ii) functions of the Director of the Office of Manage- ment with the parties to a transaction or by imposing ment and Budget relating to budget, administrative, or conditions on such parties. legislative proposals; or (b) Prior to the Committee or a department or agency (iii) existing mitigation agreements. proposing risk mitigation measures to the parties to a (c) This order shall be implemented consistent with transaction, the department or agency seeking to pro- applicable law and subject to the availability of appro- pose any such measure shall prepare and provide to the priations. Committee a written statement that: (1) identifies the (d) Officers of the United States with authority or du- national security risk posed by the transaction based ties under the Act or this order shall ensure that, in on factors including the threat (taking into account carrying out the Act and this order, the actions of de- the Director of National Intelligence’s threat analysis), partments, agencies, and the Committee are consistent vulnerabilities, and potential consequences; and (2) sets with the President’s constitutional authority to: (i) forth the risk mitigation measures the department or conduct the foreign affairs of the United States; (ii) agency believes are reasonably necessary to address the withhold information the disclosure of which could im- risk. If the Committee agrees that mitigation is appro- pair the foreign relations, the national security, the de- priate and approves the risk mitigation measures, the liberative processes of the Executive, or the perform- lead agency shall seek to negotiate such measures with ance of the Executive’s constitutional duties; (iii) rec- the parties to the transaction. ommend for congressional consideration such measures (c) A risk mitigation measure shall not, except in ex- as the President may judge necessary and expedient; traordinary circumstances, require that a party to a and (iv) supervise the unitary executive branch. transaction recognize, state its intent to comply with, SEC. 11. Revocation. Section 801 of Executive Order or consent to the exercise of any authorities under ex- 12919 of June 3, 1994, is revoked. isting provisions of law. EX. ORD. NO. 14083. ENSURING ROBUST CONSIDERATION OF (d) The lead agency designated for the purpose of EVOLVING NATIONAL SECURITY RISKS BY THE COM- monitoring a risk mitigation measure shall seek to en- MITTEE ON FOREIGN INVESTMENT IN THE UNITED STATES sure that adequate resources are available for such monitoring. When designating a lead agency for those Ex. Ord. No. 14083, Sept. 15, 2022, 87 F.R. 57369, pro- purposes, the Secretary of the Treasury shall consider vided: the agency’s views on the adequacy of its resources for By the authority vested in me as President by the such purposes. Constitution and the laws of the United States of (e)(i) Nothing in this order shall be construed to limit America, including section 721 of the Defense Produc- the ability of a department or agency, in the exercise tion Act of 1950, as amended (50 U.S.C. 4565) (section Page 1143 TITLE 50—WAR AND NATIONAL DEFENSE § 4565 721), and section 301 of title 3, United States Code, it is occur if an investment shifts ownership, rights, or con- hereby ordered as follows: trol with respect to certain manufacturing capabilities,

SECTION 1. Policy. The United States welcomes and services, critical mineral resources, or technologies supports foreign investment, consistent with the pro- that are fundamental to national security—including tection of national security. The United States com- because they are critical to United States supply chain mitment to open investment is a cornerstone of our resilience—to a foreign person who might take actions economic policy and provides the United States with that threaten to impair the national security of the substantial economic benefits, including ‘‘the pro- United States as a result of the transaction, or to other motion of economic growth, productivity, competitive- foreign persons, including foreign governments, to ness, and job creation, thereby enhancing national se- whom the foreign person has commercial, investment, curity,’’ as the Congress recognized in section 1702(b)(1) non-economic, or other ties (relevant third-party ties) of the Foreign Investment Risk Review Modernization that might cause the transaction to pose a threat to Act of 2018 (FIRRMA) (Subtitle A of Title XVII of Pub- national security. lic Law 115–232) [132 Stat. 2175]. Some investments in (ii) The Committee shall consider, as appropriate, the the United States by foreign persons, however, present covered transaction’s effect on supply chain resilience risks to the national security of the United States, and and security, both within and outside of the defense in- it is for this reason that the United States maintains dustrial base, in manufacturing capabilities, services, a robust foreign investment review process focused on critical mineral resources, or technologies that are fun- identifying and addressing such risks. damental to national security, including: microelec- It is important to ensure that the foreign investment tronics, artificial intelligence, biotechnology and bio- review process remains responsive to an evolving na- manufacturing, quantum computing, advanced clean tional security landscape and the nature of the invest- energy (such as battery storage and hydrogen), climate ments that pose related risks to national security, as adaptation technologies, critical materials (such as the Congress recognized in section 1702(b)(4) of lithium and rare earth elements), elements of the agri- FIRRMA [132 Stat. 2175]. One factor for the Committee culture industrial base that have implications for food on Foreign Investment in the United States (Com- security, and any other sectors identified in section mittee) to consider, as the Congress highlighted in sec- 3(b) or section 4(a) of Executive Order 14017 of February tion 1702(c)(1) of FIRRMA [132 Stat. 2176], is that na- 24, 2021 (America’s Supply Chains) [86 F.R. 11849]. tional security risks may arise from foreign invest- (A) The Committee shall consider, as appropriate, ments involving ‘‘a country of special concern that has the degree of involvement in the United States sup- a demonstrated or declared strategic goal of acquiring ply chain by a foreign person who is a party to the a type of critical technology or critical infrastructure covered transaction and who might take actions that that would affect United States leadership in areas re- threaten to impair the national security of the lated to national security.’’ Along these lines, I pre- United States as a result of the transaction, or who viously underscored in Executive Order 14034 of June 9, might have relevant third-party ties that might 2021 (Protecting Americans’ Sensitive Data From For- cause the transaction to pose such a threat. eign Adversaries) [listed in a table under 50 U.S.C. 1701], (B) The Committee shall consider, as appropriate, and emphasize in this order the risks presented by for- the United States capability with respect to manu- eign adversaries’ access to data of United States per- facturing capabilities, services, critical mineral re- sons. With respect to investments directly or indirectly sources, or technologies, including those described in involving foreign adversaries or other countries of spe- subsection (a)(ii) of this section; the degree of diver- cial concern, what may otherwise appear to be an eco- sification through alternative suppliers across the nomic transaction undertaken for commercial purposes supply chain, including suppliers located in allied or may actually present an unacceptable risk to United partner economies; whether the United States busi- States national security due to the legal environment, ness that is party to the covered transaction supplies, intentions, or capabilities of the foreign person, includ- directly or indirectly, the United States Government, ing foreign governments, involved in the transaction. It the energy sector industrial base, or the defense in- is the policy of the United States Government to con- dustrial base; and the concentration of ownership or tinue to respond to these risks as they evolve, includ- control by the foreign person in a given supply chain, ing through a robust review of foreign investments in among other factors that the Committee determines United States businesses. to be appropriate in considering whether the covered In light of these risks, this order provides direction transaction may undermine the resilience and secu- to the Committee to ensure that, in reviewing trans- rity of supply chains critical to national security. actions within its jurisdiction (covered transactions), (b) In considering the factors described in subsection the Committee’s review remains responsive to evolving (f)(5) of section 721, the Committee shall, taking into national security risks, including by elaborating and account the requirements of national security, consider expanding on the factors identified in subsections the following, as appropriate: (f)(1)–(10) of section 721. This order shall be imple- (i) Although foreign investments can in many cir- mented consistent with the Committee’s statutory cumstances help to foster domestic innovation, it is mandate to determine the effects of each covered trans- important to protect United States technological lead- action reviewed by the Committee on the national se- ership by addressing the risks posed by investments by curity of the United States. foreign persons who might take actions that threaten SEC. 2. Elaboration on Existing Statutory Factors. (a) In to impair the national security of the United States as considering the factors described in subsection (f)(3) of a result of the transaction, and by addressing whether section 721, the Committee shall, taking into account such persons have relevant third-party ties that might the requirements of national security, consider the fol- cause the transaction to pose such a threat. lowing, as appropriate: (ii) The Committee shall consider, as appropriate, (i) It is important to national security that the Com- whether a covered transaction involves manufacturing mittee continues to assess the effect of foreign invest- capabilities, services, critical mineral resources, or ment on domestic capacity to meet national security technologies that are fundamental to United States requirements, including those requirements that fall technological leadership and therefore national secu- outside of the defense industrial base. In particular, the rity, such as microelectronics, artificial intelligence, resilience of certain critical United States supply biotechnology and biomanufacturing, quantum com- chains may have national security implications. The puting, advanced clean energy, and climate adaptation United States recognizes the importance of cooperating technologies. The Committee shall also consider, as ap- with its allies and partners to secure supply chains; propriate, relevant third-party ties that might cause however, certain foreign investment may undermine the transaction to threaten to impair the national se- supply chain resilience efforts and therefore national curity of the United States. security by making the United States vulnerable to fu- (iii) The Committee shall consider, as appropriate, ture supply disruptions. These vulnerabilities may whether a covered transaction could reasonably result

§ 4565 TITLE 50—WAR AND NATIONAL DEFENSE Page 1144 in future advancements and applications in technology does not erode United States cybersecurity. Invest- that could undermine national security. ments by foreign persons with the capability and intent (iv) The Office of Science and Technology Policy to conduct cyber intrusions or other malicious cyber- (OSTP), in consultation with other members of the enabled activity—such as activity designed to affect Committee, shall periodically publish a list of tech- the outcome of any election for Federal, State, Tribal, nology sectors, including those technologies listed in local, or territorial office; the operation of United subsection (b)(ii) of this section, that it assesses are States critical infrastructure; or the confidentiality, fundamental to United States technological leadership integrity, or availability of United States communica- in areas relevant to national security. OSTP shall, as tions—may pose a risk to national security. The Con- appropriate, draw on the findings of other United gress, in section 1702(c)(6) of FIRRMA [132 Stat. 2177], States Government efforts to identify technology sec- identified ‘‘exacerbating or creating new cybersecurity tors that are fundamental to United States techno- vulnerabilities’’ as a relevant consideration for the logical leadership. The Committee shall consider the Committee when considering national security risks list described in this subsection, as appropriate. arising from a covered transaction. Review of foreign SEC. 3. Additional Factors to be Considered. (a) In addi- investment is an important tool as part of broader tion to the factors identified in subsections (f)(1)–(10) of United States efforts to ensure the cybersecurity of the section 721, the Committee shall consider, in reviewing United States. the effects of a covered transaction on the national se- (ii) The Committee shall consider, as appropriate, curity of the United States, the following factors relat- whether a covered transaction may provide a foreign ing to aggregate industry investment trends that may person who might take actions that threaten to impair have consequences for an individual covered trans- the national security of the United States as a result of action’s impact on national security: the transaction, or their relevant third-party ties that (i) Incremental investments over time in a sector or might cause the transaction to pose such a threat, with technology may cede, part-by-part, domestic develop- direct or indirect access to capabilities or information ment or control in that sector or technology and may databases and systems on which threat actors could en- give a foreign person who might take actions that gage in malicious cyber-enabled activities affecting the threaten to impair the national security of the United interests of the United States or United States persons, States as a result of the transaction, or their relevant including: third-party ties that might cause the transaction to (A) activity designed to undermine the protection pose such a threat, control of or rights in United States or integrity of data in storage or databases or sys- businesses in a manner that may result in national se- tems housing sensitive data; curity risk. A series of acquisitions in the same, simi- (B) activity designed to interfere with United lar, or related United States businesses involved in ac- States elections, United States critical infrastruc- tivities that are fundamental to national security or on ture, the defense industrial base, or other terms that implicate national security may result in a cybersecurity national security priorities set forth in particular covered transaction giving rise to a national Executive Order 14028 of May 12, 2021 (Improving the security risk when considered in the context of trans- Nation’s Cybersecurity) [44 U.S.C. 3551 note]; and actions that preceded it. In aggregate, these trans- (C) the sabotage of critical energy infrastructure, actions may facilitate harmful technology transfer in including smart grids. key industries or otherwise harm national security (iii) The Committee shall also consider, as appro- through the cumulative effect of these investments. As priate, the cybersecurity posture, practices, capabili- the Congress identified in section 1702(c)(2) of FIRRMA ties, and access of both the foreign person and the [132 Stat. 2176], the Committee may consider ‘‘the cu- United States business that could allow a foreign per- mulative control of, or pattern of recent transactions son who might take actions that threaten to impair the involving, any one type of critical infrastructure, en- national security of the United States as a result of the ergy asset, critical material, or critical technology by transaction, or their relevant third-party ties that a foreign government or foreign person’’ in considering might cause the transaction to pose such a threat, to national security risks. Contextualizing the Commit- manifest cyber intrusion and other malicious cyber-en- tee’s review of an individual transaction in light of the abled activity within the United States. aggregate or series of related transactions could reveal (c) In addition to the factors identified in subsections national security risks arising from the covered trans- (f)(1)–(10) of section 721, the Committee shall consider, action that were not otherwise apparent. in reviewing the effects of a covered transaction on the (ii) The Committee shall consider, as appropriate, as national security of the United States, the following part of the Committee’s review of a covered trans- factors relating to national security concerns sur- action, the risks arising from the covered transaction rounding sensitive data: in the context of multiple acquisitions or investments (i) Data is an increasingly powerful tool for the sur- in a single sector or in related manufacturing capabili- veillance, tracing, tracking, and targeting of individ- ties, services, critical mineral resources, or tech- uals or groups of individuals, with potential adverse nologies, by any foreign person who might take actions impacts on national security. In section 1702(c)(5) of that threaten to impair the national security of the FIRRMA [132 Stat. 2177], the Congress recognized that United States as a result of the transaction, or involv- the Committee may consider whether a covered trans- ing relevant third-party ties that might cause the action may ‘‘expose, either directly or indirectly, per- transaction to pose such a threat. (iii) The Committee may request, as part of the Com- sonally identifiable information, genetic information, mittee’s review of a covered transaction, that the De- or other sensitive data of United States citizens to ac- partment of Commerce’s International Trade Adminis- cess by a foreign government or foreign person that tration provide the Committee an analysis of the indus- may exploit that information in a manner that threat- try or industries in which the United States business ens national security.’’ Moreover, advances in tech- operates, and the cumulative control of, or pattern of nology, combined with access to large data sets, in- recent transactions by, a foreign person, including, di- creasingly enable the re-identification or de- rectly or indirectly, a foreign government, in that sec- anonymization of what once was unidentifiable data. tor or industry. Therefore, it is important for the United States Gov- (b) In addition to the factors identified in subsections ernment to stay current with threats posed by ad- (f)(1)–(10) of section 721, the Committee shall consider, vances in such technology, including by considering po- in reviewing the effects of a covered transaction on the tential risks posed by foreign persons who might ex- national security of the United States, the following ploit access to certain data on United States persons to factors relating to cybersecurity risks resulting from a target individuals or groups within the United States covered transaction that threaten to impair national to the detriment of national security. Accordingly, the security: Committee shall consider whether foreign investments (i) It is important for the United States to ensure in United States businesses that have access to or that that foreign investment in United States businesses store United States persons’ sensitive data, including Page 1145 TITLE 50—WAR AND NATIONAL DEFENSE § 4566 health and biological data, involve a foreign person amended (50 U.S.C. App. 2061 et seq.) [now 50 U.S.C. 4501 who might take actions that threaten to impair the na- et seq.], and the Omnibus Trade and Competitiveness tional security of the United States as a result of the Act of 1988 (Pub. L. 100–418, August 23, 1988) (the ‘‘Act’’) transaction, including whether the foreign person [see Tables for classification], it is ordered as follows: might have relevant third-party ties that might cause Pending the issuance of an Executive order to imple- the transaction to pose such a threat. ment the Act, the Secretary of the Treasury is hereby (ii) The Committee shall consider, as appropriate, designated and empowered to perform the following-de- whether a covered transaction involves a United States scribed functions of the President: The authority vest- business that: ed in the President by Section 721 of the Defense Pro- (A) has access to United States persons’ sensitive duction Act of 1950, as amended [50 U.S.C. 4565], relative data, including United States persons’ health, digital to mergers, acquisitions, and takeovers proposed or identity, or other biological data and any data that pending on or after the date of enactment of the Act could be identifiable or de-anonymized, that could be [Aug. 23, 1988] by or with foreign persons which could exploited to distinguish or trace an individual’s iden- result in foreign control of persons engaged in inter- tity in a manner that threatens national security; or state commerce in the United States. (B) has access to data on sub-populations in the The Secretary of the Treasury shall consult with the United States that could be used by a foreign person Committee on Foreign investment in the United to target individuals or groups of individuals in the States, established pursuant to Executive Order No. United States in a manner that threatens national 11858 [set out above] and chaired by the representative security. of the Secretary of the Treasury, to take such actions (iii) The Committee shall also consider, as appro- or make such recommendations as requested by the priate, whether a covered transaction involves the Secretary of the Treasury. transfer of United States persons’ sensitive data to a The delegation provided herein shall terminate, and foreign person who might take actions that threaten to this interim directive shall be without any further ef- impair the national security of the United States as a fect, except as may be provided in the Executive order result of the transaction, and whether the foreign per- implementing the Act, upon the effective date of such son has relevant third-party ties that have sought to order. exploit such information or have the ability to exploit This interim directive shall be published in the Fed- such information to the detriment of national security, eral Register. including through the use of commercial or other RONALD REAGAN. means. SEC. 4. Periodic Review. Consistent with the policy de- § 4566. Prohibition on purchase of United States scribed in section 1 of this order, it is important for the defense contractors by entities controlled by Committee, on an ongoing basis, to continue to review foreign governments its processes, practices, and regulations, and to con- (a) In general tinue to make any updates as needed and appropriate to ensure that the Committee’s consideration of na- No entity controlled by a foreign government tional security risks remains robust alongside changes may merge with, acquire, or take over a com- to the national security landscape. Accordingly, the pany engaged in interstate commerce in the Committee shall regularly review its processes, prac- United States that— tices, and regulations, and shall periodically provide to (1) is performing a Department of Defense the Assistant to the President for National Security contract, or a Department of Energy contract Affairs a report documenting the results of its review. The report shall also include any resulting policy rec- under a national security program, that can- ommendations that the Committee considers necessary not be performed satisfactorily unless that to meet the evolving set of national security risks. company is given access to information in a SEC. 5. Definitions. For purposes of this order, terms proscribed category of information; or shall have the same meanings ascribed to them in sec- (2) during the previous fiscal year, was tion 721 and regulations promulgated by the Committee awarded— under section 721. (A) Department of Defense prime contracts SEC. 6. General Provisions. (a) Nothing in this order in an aggregate amount in excess of shall be construed to impair or otherwise affect: $500,000,000; or (i) the authority granted by law to an executive de- partment or agency, or the head thereof; or (B) Department of Energy prime contracts (ii) the functions of the Director of the Office of Man- under national security programs in an ag- agement and Budget relating to budgetary, administra- gregate amount in excess of $500,000,000. tive, or legislative proposals. (b) Inapplicability to certain cases (b) This order shall be implemented consistent with applicable law and subject to the availability of appro- The limitation in subsection (a) shall not priations. apply if a merger, acquisition, or takeover is not (c) This order is not intended to, and does not, affect suspended or prohibited pursuant to section 4565 the requirements in section 721 relating to the scope of of this title. the Committee’s jurisdiction. (c) Definitions (d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforce- In this section: able at law or in equity by any party against the (1) The term ‘‘entity controlled by a foreign United States, its departments, agencies, or entities, government’’ includes— its officers, employees, or agents, or any other person. (A) any domestic or foreign organization J.R. BIDEN, JR. or corporation that is effectively owned or controlled by a foreign government; and INTERIM DIRECTIVE REGARDING DISPOSITION OF CERTAIN (B) any individual acting on behalf of a MERGERS, ACQUISITIONS, AND TAKEOVERS foreign government, Memorandum of the President of the United States, Oct. 26, 1988, 53 F.R. 43999, provided: as determined by the President. Memorandum for the Secretary of the Treasury (2) The term ‘‘proscribed category of infor- By virtue of the authority vested in me by the Con- mation’’ means a category of information stitution and statutes of the United States, including that— without limitation Section 301 of Title 3 of the United (A) with respect to Department of Defense States Code, the Defense Production Act of 1950, as contracts—

§ 4567 TITLE 50—WAR AND NATIONAL DEFENSE Page 1146 (i) includes special access information; Housing, and Urban Affairs of the Senate and (ii) is determined by the Secretary of De- the Committee on Financial Services of the fense to include information the disclosure House of Representatives a report signed by the of which to an entity controlled by a for- Chairperson that contains— eign government is not in the national se- (1) a description of the contingency planning curity interests of the United States; and by each department, agency, or independent (iii) is defined in regulations prescribed establishment of the Federal Government to by the Secretary of Defense for the pur- which the President has delegated authority poses of this section; and under this chapter for events that might re- (B) with respect to Department of Energy quire the use of the priorities and allocations contracts— authorities; (i) is determined by the Secretary of En- (2) recommendations for the effective use of ergy to include information described in the priorities and allocations authorities in subparagraph (A)(ii); and this chapter in a manner consistent with the (ii) is defined in regulations prescribed statement of policy under section 4502(b) of by the Secretary of Energy for the pur- this title; poses of this section. (3) recommendations for legislation actions, (Pub. L. 102–484, div. A, title VIII, § 835, Oct. 23, as appropriate, to support the effective use of 1992, 106 Stat. 2461.) the priorities and allocations authorities in this chapter; Editorial Notes (4) recommendations for improving informa- tion sharing between departments, agencies, CODIFICATION and independent establishments of the Federal Section was formerly classified to section 2170a of the Government relating to the use of the prior- former Appendix to this title prior to editorial reclassi- ities and allocations authorities in this chap- fication and renumbering as this section. Section was enacted as part of the National Defense ter; Authorization Act for Fiscal Year 1993, and not as part (5) up-to-date copies of the rules described of the Defense Production Act of 1950 which comprises under section 4511(d)(1) of this title; and this chapter. (6) short attestations signed by each member of the Committee stating their concurrence in

§ 4567. Defense Production Act Committee the report. (a) Committee established (e) Chapter 10 of title 5 There is established the Defense Production The provisions of chapter 10 of title 5 shall not Act Committee (in this section referred to as apply to the Committee. the ‘‘Committee’’), which shall coordinate and plan for on 1 the effective use of the priorities (Sept. 8, 1950, ch. 932, title VII, § 722, as added and allocations authorities under this chapter Pub. L. 102–558, title I, § 135, Oct. 28, 1992, 106 by the departments, agencies, and independent Stat. 4212; amended Pub. L. 109–295, title VI, establishments of the Federal Government to § 612(c), Oct. 4, 2006, 120 Stat. 1410; Pub. L. 111–67, which the President has delegated authority § 11, Sept. 30, 2009, 123 Stat. 2019; Pub. L. 113–172, under this chapter. § 2, Sept. 26, 2014, 128 Stat. 1896; Pub. L. 117–286, (b) Membership § 4(a)(323), Dec. 27, 2022, 136 Stat. 4341.) (1) IN GENERAL.—The members of the Com- TERMINATION OF SECTION mittee shall be— For termination of section, see section 4564(a) (A) the head of each Federal agency to which of this title. the President has delegated authority under this chapter; and Editorial Notes (B) the Chairperson of the Council of Eco- nomic Advisors. REFERENCES IN TEXT (2) The Chairperson of the Committee shall be This chapter, referred to in subsecs. (a), (b), and (d), the head of the agency to which the President was in the original ‘‘this Act’’, meaning act Sept. 8, 1950, ch. 932, 64 Stat. 798, known as the Defense Produc- has delegated primary responsibility for govern- tion Act of 1950, which is classified principally to this ment-wide coordination of the authorities in chapter. For complete classification of this Act to the this chapter. Code, see section 4501 of this title and Tables. (c) Coordination of Committee activities CODIFICATION The Chairperson shall appoint one person to coordinate all of the activities of the Com- Section was formerly classified to section 2171 of the former Appendix to this title prior to editorial reclassi- mittee, and such person shall— fication and renumbering as this section. (1) be a full-time employee of the Federal Government; AMENDMENTS (2) report to the Chairperson; and 2022—Subsec. (e). Pub. L. 117–286 substituted ‘‘Chapter (3) carry out such activities relating to the 10 of title 5’’ for ‘‘Federal Advisory Committee Act’’ in Committee as the Chairperson may determine heading and ‘‘chapter 10 of title 5’’ for ‘‘the Federal Ad- appropriate. visory Committee Act (5 U.S.C. App.)’’ in text. (d) Report 2014—Subsec. (a). Pub. L. 113–172, § 2(1), substituted ‘‘coordinate and plan for’’ for ‘‘advise the President’’ The Committee shall issue a report each year and ‘‘the priorities and allocations authorities’’ for by March 31 to the Committee on Banking, ‘‘the authority’’. Subsec. (b)(2). Pub. L. 113–172, § 2(2), amended par. (2) 1 So in original. The word ‘‘on’’ probably should not appear. generally. Prior to amendment, text read as follows: Page 1147 TITLE 50—WAR AND NATIONAL DEFENSE § 4568 ‘‘The President shall designate 1 member of the Com- ignate the Secretary of Homeland Security and the mittee as the Chairperson of the Committee.’’ Secretary of Defense as rotating Chairpersons of the Subsec. (c). Pub. L. 113–172, § 2(3), amended subsec. (c) Defense Production Act Committee (the ‘‘Committee’’). generally. Prior to amendment, text read as follows: The Chair shall rotate annually on April 1 of each year, ‘‘(1) IN GENERAL.—The President shall appoint an Ex- with the Secretary of Homeland Security hereby des- ecutive Director of the Defense Production Act Com- ignated to serve as Chairperson of the Committee for mittee (in this section referred to as the ‘Executive Di- the remainder of this first term. The Secretary of rector’), who shall— Homeland Security and the Secretary of Defense are di- ‘‘(A) be responsible to the Chairperson of the Com- rected to formalize responsibilities for funding and ad- mittee; and ministratively supporting the Committee through ‘‘(B) carry out such activities relating to the Com- interagency agreement. mittee as the Chairperson may determine. Furthermore, the Chairperson shall invite to each ‘‘(2) APPOINTMENT.—The appointment by the Presi- meeting of the Committee all Members of the Com- dent shall not be subject to the advice and consent of mittee as defined in section 722(b) of the Act [50 U.S.C. the Senate. 4567(b)], and shall ensure that the reporting require- ‘‘(3) COMPENSATION.—For pay periods beginning on or ments of section 722(d) of the Act [50 U.S.C. 4567(d)] are after the date on which each Chairperson is appointed, fulfilled. funds for the pay of the Executive Director shall be The Secretary of Homeland Security is hereby au- paid from appropriations to the salaries and expenses thorized and directed to publish this memorandum in account of the department or agency of the Chair- the Federal Register. person of the Committee. The Executive Director shall BARACK OBAMA. be compensated at a rate of pay equivalent to that of a Deputy Assistant Secretary (or a comparable posi- § 4568. Annual report on impact of offsets tion) of the Federal agency of the Chairperson of the Committee.’’ (a) Report required Subsec. (d). Pub. L. 113–172, § 2(4)(A), (B), in introduc- (1) In general tory provisions, substituted ‘‘The Committee shall The President shall submit to the Com- issue a report each year by March 31’’ for ‘‘Not later mittee on Banking, Housing, and Urban Af- than the end of the first quarter of each calendar year, the Committee shall submit’’ and ‘‘the Chairperson’’ fairs of the Senate and the Committee on Fi- for ‘‘each member of the Committee’’. nancial Services of the House of Representa- Subsec. (d)(1). Pub. L. 113–172, § 2(4)(C), substituted ‘‘a tives, a detailed annual report on the impact description of the contingency planning by’’ for ‘‘a re- of offsets on the defense preparedness, indus- view of the authority under this chapter of’’ and in- trial competitiveness, employment, and trade serted before semicolon at end ‘‘for events that might of the United States. require the use of the priorities and allocations au- thorities’’. (2) Duties of the Secretary of Commerce Subsec. (d)(2). Pub. L. 113–172, § 2(4)(D), substituted The Secretary of Commerce (hereafter in ‘‘priorities and allocations authorities in this chapter’’ this subsection referred to as the ‘‘Secretary’’) for ‘‘authority described in paragraph (1)’’. shall— Subsec. (d)(3). Pub. L. 113–172, § 2(4)(E), amended par. (A) prepare the report required by para- (3) generally. Prior to amendment, par. (3) read as fol- graph (1); lows: ‘‘recommendations for legislation, regulations, executive orders, or other action by the Federal Gov- (B) consult with the Secretary of Defense, ernment necessary to improve the use of the authority the Secretary of the Treasury, the Secretary described in paragraph (1); and’’. of State, and the United States Trade Rep- Subsec. (d)(4). Pub. L. 113–172, § 2(4)(F), substituted resentative in connection with the prepara- ‘‘the use of the priorities and allocations authorities in tion of such report; and this chapter;’’ for ‘‘all aspects of the authority de- (C) function as the President’s Executive scribed in paragraph (1).’’ Agent for carrying out this section. Subsec. (d)(5), (6). Pub. L. 113–172, § 2(4)(G), added pars. (5) and (6). (b) Interagency studies and related data 2009—Pub. L. 111–67 amended section generally. Prior (1) Purpose of report to amendment, section related to defense industrial Each report required under subsection (a) base information system with regard to its establish- ment, sources of information, strategic plan for devel- shall identify the cumulative effects of offset oping comprehensive system, capabilities, and required agreements on— report on subcontractor and supplier base. (A) the full range of domestic defense pro- ductive capability (with special attention Statutory Notes and Related Subsidiaries paid to the firms serving as lower-tier sub- EFFECTIVE DATE contractors or suppliers); and (B) the domestic defense technology base Section deemed to have become effective Mar. 1, 1992, as a consequence of the technology transfers see section 304 of Pub. L. 102–558, set out as an Effective associated with such offset agreements. Date of 1992 Amendment note under section 4502 of this title. (2) Use of data Data developed or compiled by any agency Executive Documents while conducting any interagency study or DESIGNATING THE CHAIRPERSON OF THE DEFENSE other independent study or analysis shall be PRODUCTION ACT COMMITTEE made available to the Secretary to facilitate Memorandum of President of the United States, May the execution of the Secretary’s responsibil- 19, 2010, 75 F.R. 32087, provided: ities with respect to trade offset and Memorandum for the Secretary of Defense [and] the countertrade policy development. Secretary of Homeland Security (c) Notice of offset agreements Pursuant to the authority vested in me by section (1) In general 722(b)(2) of the Defense Production Act of 1950, as amended (section 11 of Public Law 111–67; 50 App. U.S.C. If a United States firm enters into a con- 2171) [now 50 U.S.C. 4567(b)(2)] (the ‘‘Act’’), I hereby des- tract for the sale of a weapon system or de-

§ 4568 TITLE 50—WAR AND NATIONAL DEFENSE Page 1148 fense-related item to a foreign country or for- CODIFICATION eign firm and such contract is subject to an Section was formerly classified to section 2172 of the offset agreement exceeding $5,000,000 in value, former Appendix to this title prior to editorial reclassi- such firm shall furnish to the official des- fication and renumbering as this section. ignated in the regulations promulgated pursu- ant to paragraph (2) information concerning Statutory Notes and Related Subsidiaries such sale. REPORT ON IMPACT OF OFFSETS ON DOMESTIC (2) Regulations CONTRACTORS AND LOWER TIER SUBCONTRACTORS The information to be furnished under para- Pub. L. 108–195, § 7(a), Dec. 19, 2003, 117 Stat. 2894, as amended by Pub. L. 111–67, § 12(b)(3), Sept. 30, 2009, 123 graph (1) shall be prescribed in regulations Stat. 2022, provided that: promulgated by the Secretary. Such regula- ‘‘(1) IN GENERAL.—As part of the annual report re- tions shall provide protection from public dis- quired under section 723(a) of the Defense Production closure for such information, unless public dis- Act of 1950 [50 U.S.C. 4568(a)], the Secretary of Com- closure is subsequently specifically authorized merce (in this section referred to as the ‘Secretary’) by the firm furnishing the information. shall— ‘‘(A) detail the number of foreign contracts involv- (d) Contents of report ing domestic contractors that use offsets, industrial participation agreements, or similar arrangements (1) In general during the preceding 5-year period; Each report under subsection (a) shall in- ‘‘(B) calculate the aggregate, median, and mean clude— values of the contracts and the offsets, industrial par- (A) a net assessment of the elements of the ticipation agreements, and similar arrangements dur- industrial base and technology base covered ing the preceding 5-year period; and ‘‘(C) describe the impact of international or foreign by the report; sales of United States defense products and related (B) recommendations for appropriate re- offsets, industrial participation agreements, and medial action under the authority of this similar arrangements on domestic prime contractors chapter, or other law or regulations; and, to the extent practicable, the first 3 tiers of do- (C) a summary of the findings and rec- mestic contractors and subcontractors during the ommendations of any interagency studies preceding 5-year period in terms of domestic employ- conducted during the reporting period under ment, including any job losses, on an annual basis. subsection (b); ‘‘(2) USE OF INTERNAL DOCUMENTS.—To the extent that the Department of Commerce is already in possession (D) a summary of offset arrangements con- of relevant data, the Department shall use internal cluded during the reporting period for which documents or existing departmental records to carry information has been furnished pursuant to out paragraph (1). subsection (c); and ‘‘(3) INFORMATION FROM NON-FEDERAL ENTITIES.— (E) a summary and analysis of any bilat- ‘‘(A) EXISTING INFORMATION.—In carrying out para- eral and multilateral negotiations relating graph (1), the Secretary shall only require a non-Fed- to the use of offsets completed during the re- eral entity to provide information that is available porting period. through the existing data collection and reporting systems of that non-Federal entity. (2) Alternative findings or recommendations ‘‘(B) FORMAT.—The Secretary may require a non- Federal entity to provide information to the Sec- Each report required under this section shall retary in the same form that is already provided to include any alternative findings or rec- a foreign government in fulfilling an offset arrange- ommendations offered by any departmental ment, industrial participation agreement, or similar Secretary, agency head, or the United States arrangement.’’ Trade Representative to the Secretary. [Pub. L. 111–67, § 12(b)(3), which directed amendment of section 7(a) of the ‘‘Defense Production Act Amend- (e) Utilization of annual report in negotiations ments of 2003 (50 U.S.C. App. 2099 note)’’ by striking The findings and recommendations of the re- ‘‘section 309(a) of the Defense Production Act of 1950 (50 ports required by subsection (a), and any inter- U.S.C. App. 2099(a))’’ and inserting ‘‘section 723(a) of agency reports and analyses shall be considered the Defense Production Act of 1950’’, was executed to section 7(a) of Pub. L. 108–195, the Defense Production by representatives of the United States during Act Reauthorization of 2003, set out above, to reflect bilateral and multilateral negotiations to mini- the probable intent of Congress.] mize the adverse effects of offsets. DEFENSE OFFSETS DISCLOSURE (Sept. 8, 1950, ch. 932, title VII, § 723, as added Pub. L. 106–113, div. B, § 1000(a)(7) [div. B, title XII, Pub. L. 111–67, § 12(a), Sept. 30, 2009, 123 Stat. subtitle D], Nov. 29, 1999, 113 Stat. 1536, 1501A–500, pro- 2020.) vided that: TERMINATION OF SECTION ‘‘SEC. 1241. SHORT TITLE. ‘‘This subtitle may be cited as the ‘Defense Offsets For termination of section, see section 4564(a) Disclosure Act of 1999’. of this title. ‘‘SEC. 1242. FINDINGS AND DECLARATION OF POL- ICY. Editorial Notes ‘‘(a) FINDINGS.—Congress makes the following find- ings: REFERENCES IN TEXT ‘‘(1) A fair business environment is necessary to ad- This chapter, referred to in subsec. (d)(1)(B), was in vance international trade, economic stability, and the original ‘‘this Act’’, meaning act Sept. 8, 1950, ch. development worldwide, is beneficial for American 932, 64 Stat. 798, known as the Defense Production Act workers and businesses, and is in the United States of 1950, which is classified principally to this chapter. national interest. For complete classification of this Act to the Code, see ‘‘(2) In some cases, mandated offset requirements section 4501 of this title and Tables. can cause economic distortions in international de- Page 1149 TITLE 50—WAR AND NATIONAL DEFENSE § 4568 fense trade and undermine fairness and competitive- United States and its trading partners and competi- ness, and may cause particular harm to small- and tors; medium-sized businesses. ‘‘(2) the Secretary of Defense, the Secretary of ‘‘(3) The use of offsets may lead to increasing de- State, the Secretary of Commerce, and the United pendence on foreign suppliers for the production of States Trade Representative, or their designees, United States weapons systems. should raise with other industrialized nations at ‘‘(4) The offset demands required by some pur- every suitable venue the need for transparency and chasing countries, including some close allies of the reasonable standards to govern the role of offsets in United States, equal or exceed the value of the base international defense trade; contract they are intended to offset, mitigating much ‘‘(3) the United States Government should enter of the potential economic benefit of the exports. into discussions regarding the establishment of mul- ‘‘(5) Offset demands often unduly distort the prices tilateral standards for the use of offsets in inter- of defense contracts. national defense trade through the appropriate multi- ‘‘(6) In some cases, United States contractors are lateral fora, including such organizations as the required to provide indirect offsets which can nega- Transatlantic Economic Partnership, the Wassenaar tively impact nondefense industrial sectors. Arrangement, the G–8, and the World Trade Organiza- ‘‘(7) Unilateral efforts by the United States to pro- tion; and hibit offsets may be impractical in the current era of ‘‘(4) the United States Government, in entering into globalization and would severely hinder the competi- the discussions described in paragraph (3), should tiveness of the United States defense industry in the take into account the distortions produced by the global market. provision of other benefits and subsidies, such as ex- ‘‘(8) The development of global standards to manage port financing, by various countries to support de- and restrict demands for offsets would enhance fense trade. United States efforts to mitigate the negative impact ‘‘SEC. 1245. REPORTING OF OFFSET AGREEMENTS. of offsets. ‘‘[Amended section 2776 of title 22.] ‘‘(b) DECLARATION OF POLICY.—It is the policy of the ‘‘SEC. 1246. EXPANDED PROHIBITION ON INCENTIVE United States to monitor the use of offsets in inter- PAYMENTS. national defense trade, to promote fairness in such trade, and to ensure that foreign participation in the ‘‘[Amended section 2779a of title 22.] production of United States weapons systems does not ‘‘SEC. 1247. ESTABLISHMENT OF REVIEW COMMIS- harm the economy of the United States. SION. ‘‘SEC. 1243. DEFINITIONS. ‘‘(a) IN GENERAL.—There is established a National Commission on the Use of Offsets in Defense Trade (in ‘‘In this subtitle: this section referred to as the ‘Commission’) to address ‘‘(1) APPROPRIATE CONGRESSIONAL COMMITTEES.—The all aspects of the use of offsets in international defense term ‘appropriate congressional committees’ means— ‘‘(A) the Committee on Foreign Relations of the trade. ‘‘(b) COMMISSION MEMBERSHIP.—Not later than 120 Senate; and days after the date of enactment of this Act [Nov. 29, ‘‘(B) the Committee on International Relations 1999], the President, with the concurrence of the Major- [now Committee on Foreign Affairs] of the House of ity and Minority Leaders of the Senate and the Speak- Representatives. er and Minority Leader of the House of Representa- ‘‘(2) G–8.—The term ‘G–8’ means the group con- tives, shall appoint 11 individuals to serve as members sisting of France, Germany, Japan, the United King- of the Commission. Commission membership shall in- dom, the United States, Canada, Italy, and Russia es- clude— tablished to facilitate economic cooperation among ‘‘(1) representatives from the private sector, includ- the eight major economic powers. ing— ‘‘(3) OFFSET.—The term ‘offset’ means the entire ‘‘(A) one each from— range of industrial and commercial benefits provided ‘‘(i) a labor organization, to foreign governments as an inducement or condi- ‘‘(ii) a United States defense manufacturing tion to purchase military goods or services, including company dependent on foreign sales, benefits such as coproduction, licensed production, ‘‘(iii) a United States company dependent on subcontracting, technology transfer, in-country pro- foreign sales that is not a defense manufacturer, curement, marketing and financial assistance, and and joint ventures. ‘‘(iv) a United States company that specializes ‘‘(4) TRANSATLANTIC ECONOMIC PARTNERSHIP.—The in international investment, and term ‘Transatlantic Economic Partnership’ means ‘‘(B) two members from academia with widely the joint commitment made by the United States and recognized expertise in international economics; the European Union to reinforce their close relation- and ship through an initiative involving the intensifica- ‘‘(2) five members from the executive branch, in- tion and extension of multilateral and bilateral co- cluding a member from— operation and common actions in the areas of trade ‘‘(A) the Office of Management and Budget, and investment. ‘‘(B) the Department of Commerce, ‘‘(5) WASSENAAR ARRANGEMENT.—The term ‘‘(C) the Department of Defense, ‘Wassenaar Arrangement’ means the multilateral ex- ‘‘(D) the Department of State, and port control regime in which the United States par- ‘‘(E) the Department of Labor. The member designated from the Office of Management ticipates that seeks to promote transparency and re- and Budget shall serve as Chairperson of the Commis- sponsibility with regard to transfers of conventional sion. The President shall ensure that the Commission armaments and sensitive dual-use items. ‘‘(6) WORLD TRADE ORGANIZATION.—The term ‘World is nonpartisan and that the full range of perspectives Trade Organization’ means the organization estab- on the subject of offsets in the defense industry is ade- lished pursuant to the WTO Agreement. quately represented. ‘‘(c) DUTIES.—The Commission shall be responsible ‘‘(7) WTO AGREEMENT.—The term ‘WTO Agreement’ for reviewing and reporting on— means the Agreement Establishing the World Trade ‘‘(1) the full range of current practices by foreign Organization entered into on April 15, 1994. governments in requiring offsets in purchasing agree- ‘‘SEC. 1244. SENSE OF CONGRESS. ments and the extent and nature of offsets offered by ‘‘It is the sense of Congress that— United States and foreign defense industry contrac- ‘‘(1) the executive branch should pursue efforts to tors; address trade fairness by establishing reasonable, ‘‘(2) the impact of the use of offsets on defense sub- business-friendly standards for the use of offsets in contractors and nondefense industrial sectors af- international business transactions between the fected by indirect offsets; and

§ 4568 TITLE 50—WAR AND NATIONAL DEFENSE Page 1150 ‘‘(3) the role of offsets, both direct and indirect, on pay rates, except that the rate of pay for the execu- domestic industry stability, United States trade com- tive director and other personnel may not exceed petitiveness and national security. the rate payable for level V of the Executive Sched- ‘‘(d) COMMISSION REPORT.—Not later than 12 months ule under section 5316 of such title. after the Commission is established, the Commission ‘‘(4) DETAIL OF GOVERNMENT EMPLOYEES.—Any Fed- shall submit a report to the appropriate congressional eral Government employee may be detailed to the committees. In addition to the items described under Commission without reimbursement, and such detail subsection (c), the report shall include— shall be without interruption or loss of civil service ‘‘(1) an analysis of— status or privilege. ‘‘(A) the collateral impact of offsets on industry ‘‘(5) PROCUREMENT OF TEMPORARY AND INTERMITTENT sectors that may be different than those of the con- SERVICES.—The Chairman of the Commission may tractor providing the offsets, including estimates of procure temporary and intermittent services under contracts and jobs lost as well as an assessment of section 3109(b) of title 5, United States Code, at rates damage to industrial sectors; for individuals which do not exceed the daily equiva- ‘‘(B) the role of offsets with respect to competi- lent of the annual rate of basic pay prescribed for tiveness of the United States defense industry in level V of the Executive Schedule under section 5316 international trade and the potential damage to the of such title. ability of United States contractors to compete if ‘‘(i) TERMINATION.—The Commission shall terminate offsets were prohibited or limited; and 30 days after the transmission of the report from the ‘‘(C) the impact on United States national secu- President as mandated in section 1248(b). rity, and upon United States nonproliferation ob- ‘‘SEC. 1248. MULTILATERAL STRATEGY TO AD- jectives, of the use of coproduction, subcontracting, DRESS OFFSETS. and technology transfer with foreign governments ‘‘(a) IN GENERAL.—The President shall initiate a re- or companies that results from fulfilling offset re- view to determine the feasibility of establishing, and quirements, with particular emphasis on the ques- the most effective means of negotiating, a multilateral tion of dependency upon foreign nations for the treaty on standards for the use of offsets in inter- supply of critical components or technology; national defense trade, with a goal of limiting all offset ‘‘(2) proposals for unilateral, bilateral, or multilat- transactions that are considered injurious to the econ- eral measures aimed at reducing any detrimental ef- omy of the United States. fects of offsets; and ‘‘(b) REPORT REQUIRED.—Not later than 90 days after ‘‘(3) an identification of the appropriate executive the date on which the Commission submits the report branch agencies to be responsible for monitoring the required under section 1247(d), the President shall sub- use of offsets in international defense trade. mit to the appropriate congressional committees a re- ‘‘(e) PERIOD OF APPOINTMENT; VACANCIES.—Members port containing the President’s determination pursuant shall be appointed for the life of the Commission. Any to subsection (a), and, if the President determines a vacancy in the Commission shall not affect its powers, multilateral treaty is feasible or desirable, a strategy but shall be filled in the same manner as the original for United States negotiation of such a treaty. One appointment. year after the date the report is submitted under the ‘‘(f) INITIAL MEETING.—Not later than 30 days after preceding sentence, and annually thereafter for 5 years, the date on which all members of the Commission have the President shall submit to the appropriate congres- been appointed, the Commission shall hold its first sional committees a report detailing the progress to- meeting. ward reaching such a treaty. ‘‘(g) MEETINGS.—The Commission shall meet at the ‘‘(c) REQUIRED INFORMATION.—The report required by call of the Chairman. subsection (b) shall include— ‘‘(h) COMMISSION PERSONNEL MATTERS.— ‘‘(1) a description of the United States efforts to ‘‘(1) COMPENSATION OF MEMBERS.—Each member of pursue multilateral negotiations on standards for the the Commission who is not an officer or employee of use of offsets in international defense trade; the Federal Government shall be compensated at a ‘‘(2) an evaluation of existing multilateral fora as rate equal to the daily equivalent of the annual rate appropriate venues for establishing such negotia- of basic pay prescribed for level IV of the Executive tions; Schedule under section 5315 of title 5, United States ‘‘(3) a description on a country-by-country basis of Code, for each day (including travel time) during any United States efforts to engage in negotiations which such member is engaged in the performance of to establish bilateral treaties or agreements with re- the duties of the Commission. All members of the spect to the use of offsets in international defense Commission who are officers or employees of the trade; and United States shall serve without compensation in ‘‘(4) an evaluation on a country-by-country basis of addition to that received for their services as officers any foreign government efforts to address the use of or employees of the United States. offsets in international defense trade. ‘‘(2) TRAVEL EXPENSES.—The members of the Com- ‘‘(d) COMPTROLLER GENERAL REVIEW.—The Comp- mission shall be allowed travel expenses, including troller General of the United States shall monitor and per diem in lieu of subsistence, at rates authorized periodically report to Congress on the progress in for employees of agencies under subchapter I of chap- reaching a multilateral treaty.’’ ter 57 of title 5, United States Code, while away from their homes or regular places of business in the per- DECLARATION OF OFFSET POLICY formance of services for the Commission. Pub. L. 102–558, title I, § 123, Oct. 28, 1992, 106 Stat. ‘‘(3) STAFF.— 4206, as amended by Pub. L. 108–195, § 7(c), Dec. 19, 2003, ‘‘(A) IN GENERAL.—The Chairman of the Commis- 117 Stat. 2895; Pub. L. 111–67, § 12(b)(1), Sept. 30, 2009, 123 sion may, without regard to the civil service laws Stat. 2022, provided that: and regulations, appoint and terminate an execu- ‘‘(a) IN GENERAL.—Recognizing that certain offsets tive director and such other additional personnel as for military exports are economically inefficient and may be necessary to enable the Commission to per- market distorting, and mindful of the need to minimize form its duties. The employment of an executive di- the adverse effects of offsets in military exports while rector shall be subject to confirmation by the Com- ensuring that the ability of United States firms to mission. compete for military export sales is not undermined, it ‘‘(B) COMPENSATION.—The Chairman of the Com- is the policy of the Congress that— mission may fix the compensation of the executive ‘‘(1) no agency of the United States Government director and other personnel without regard to the shall encourage, enter directly into, or commit provisions of chapter 51 and subchapter III of chap- United States firms to any offset arrangement in con- ter 53 of title 5, United States Code, relating to nection with the sale of defense goods or services to classification of positions and General Schedule foreign governments; Page 1151 TITLE 50—WAR AND NATIONAL DEFENSE § 4568 ‘‘(2) United States Government funds shall not be appointed by the President with the concurrence of the used to finance offsets in security assistance trans- Majority and Minority Leaders of the Senate and the actions, except in accordance with policies and proce- Speaker and the Minority Leader of the House of Rep- dures that were in existence on March 1, 1992; resentatives. The Commission membership includes: (a) ‘‘(3) nothing in this section shall prevent agencies representatives from the private sector, including one of the United States Government from fulfilling obli- each from (i) a labor organization, (ii) a United States gations incurred through international agreements defense manufacturing company dependent on foreign entered into before March 1, 1992; and sales, (iii) a United States company dependent on for- ‘‘(4) the decision whether to engage in offsets, and eign sales that is not a defense manufacturer, and (iv) the responsibility for negotiating and implementing a United States company that specializes in inter- offset arrangements, reside with the companies in- national investment; (b) two members from academia volved. with widely recognized expertise in international eco- ‘‘(b) PRESIDENTIAL APPROVAL OF EXCEPTIONS.—It is nomics; and (c) five members from the executive the policy of the Congress that the President may ap- branch, including a member from the: (i) Office of Man- prove an exception to the policy stated in subsection agement and Budget, (ii) Department of Commerce, (a) after receiving the recommendation of the National (iii) Department of Defense, (iv) Department of State, Security Council. and (v) Department of Labor. The member from the Of- ‘‘(c) NEGOTIATIONS.— fice of Management and Budget will serve as Chair- ‘‘(1) INTERAGENCY TEAM.— person of the Commission and will appoint, and fix the ‘‘(A) IN GENERAL.—It is the policy of Congress compensation of, the Executive Director of the Com- that the President shall designate a chairman of an mission. SEC. 2. Duties. The Commission will be responsible for interagency team comprised of the Secretary of reviewing and reporting on: (a) current practices by Commerce, Secretary of Defense, United States foreign governments in requiring offsets in purchasing Trade Representative, Secretary of Labor, and Sec- agreements and the extent and nature of offsets offered retary of State to consult with foreign nations on by United States and foreign defense industry contrac- limiting the adverse effects of offsets in defense tors; (b) the impact of the use of offsets on defense sub- procurement without damaging the economy or the contractors and nondefense industrial sectors affected defense industrial base of the United States or by indirect offsets; and (c) the role of offsets, both di- United States defense production or defense pre- rect and indirect, on domestic industry stability, paredness. United States trade competitiveness, and national se- ‘‘(B) MEETINGS.—The President shall direct the curity. interagency team to meet on a quarterly basis. SEC. 3. Commission Report. Not later than 12 months ‘‘(C) REPORTS.—The President shall direct the after the Commission is established, it will report to interagency team to submit to Congress an annual the appropriate congressional committees. In addition report, to be included as part of the report required to the items described in section 2 of this order, the re- under section 723(a) of the Defense Production Act port will include: (a) an analysis of (i) the collateral of 1950 [50 U.S.C. 4568(a)], that describes the results impact of offsets on industry sectors that may be dif- of the consultations of the interagency team under ferent than those of the contractor paying offsets, in- subparagraph (A) and the meetings of the inter- cluding estimates of contracts and jobs lost as well as agency team under subparagraph (B). an assessment of damage to industrial sectors; (ii) the ‘‘(2) RECOMMENDATIONS FOR MODIFICATIONS.—The role of offsets with respect to competitiveness of the interagency team shall submit to the President any United States defense industry in international trade recommendations for modifications of any existing or and the potential damage to the ability of United proposed memorandum of understanding between of- States contractors to compete if offsets were prohib- ficials acting on behalf of the United States and one ited or limited; and (iii) the impact on United States or more foreign countries (or any instrumentality of national security, and upon United States nonprolifera- a foreign country) relating to— tion objectives, of the use of co-production, subcon- ‘‘(A) research, development, or production of de- tracting, and technology transfer with foreign govern- fense equipment; or ments or companies, that results from fulfilling offset ‘‘(B) the reciprocal procurement of defense requirements, with particular emphasis on the question items.’’ of dependency upon foreign nations for the supply of critical components or technology; (b) proposals for Executive Documents unilateral, bilateral, or multilateral measures aimed at reducing any detrimental effects of offsets; and (c) an DELEGATION OF FUNCTIONS identification of the appropriate executive branch For directive to Secretary of Commerce to prepare agencies to be responsible for monitoring the use of off- and submit annual report required by this section, see sets in international defense trade. section 702 of Ex. Ord. No. 13603, Mar. 16, 2012, 77 F.R. SEC. 4. Administration, Compensation, and Termination. 16658, set out as a note under section 4553 of this title. (a) The Department of Defense will provide administra- tive support and funding for the Commission and Fed- EX. ORD. NO. 13177. NATIONAL COMMISSION ON THE USE OF eral Government employees may be detailed to the OFFSETS IN DEFENSE TRADE AND PRESIDENT’S COUNCIL Commission without reimbursement. ON THE USE OF OFFSETS IN COMMERCIAL TRADE (b) Members of the Commission who are not officers or employees of the Federal Government will be com- Ex. Ord. No. 13177, Dec. 4, 2000, 65 F.R. 76558, as pensated at a rate of basic pay prescribed for level IV amended by Ex. Ord. No. 13316, § 3(f), Sept. 17, 2003, 68 of the Executive Schedule under section 5315 of title 5, F.R. 55256, provided: United States Code, for each day (including travel By the authority vested in the President by the Con- time) during which such member is engaged in perform- stitution and the laws of the United States of America, ance of the duties of the Commission. Members of the including Public Law 106–113 [see Tables for classifica- Commission who are officers or employees of the Fed- tion] and the Federal Advisory Committee Act, as eral Government will serve without compensation in amended ([former] 5 U.S.C. App.) [see 5 U.S.C. 1001 et addition to that received for their services as officers seq.], and in order to implement section 1247 of Public or employees of the Federal Government. Law 106–113 (113 Stat. 1501A–502) [set out in a note (c) Members of the Commission will be allowed travel above] and to create a parallel ‘‘President’s Council on expenses, including per diem in lieu of subsistence, the Use of Offsets in Commercial Trade,’’ it is hereby under subchapter 1 of chapter 57 of title 5, United ordered as follows: States Code, while on business in the performance of

SECTION 1. Membership. Pursuant to Public Law services for the Commission. 106–113, the ‘‘National Commission on the Use of Offsets (d) The Commission will terminate 30 days after in Defense Trade’’ (Commission) comprises 11 members transmitting the report required in section 1248(b) of

§ 4601 TITLE 50—WAR AND NATIONAL DEFENSE Page 1152 Public Law 106–113 (113 Stat. 1501A–505) [set out in a Economic Powers Act (50 U.S.C. 1701 et seq.)) (other note above]. than sections 11A, 11B, and 11C of such Export Adminis- [SECS. 5 to 8. Revoked effective Sept. 30, 2003, by Ex. tration Act of 1979 [50 U.S.C. 4611, 4612, 4613]) is re- Ord. No. 13316, § 3(f), Sept. 17, 2003, 68 F.R. 55256.] pealed.’’ CHAPTER 56—EXPORT ADMINISTRATION IMPLEMENTATION OF REPEAL Pub. L. 115–232, div. A, title XVII, § 1766(b), Aug. 13, Sec. 2018, 132 Stat. 2232, provided that: ‘‘The President shall 4601 to 4610.Repealed. implement the amendment made by subsection (a) [re- 4611. Multilateral export control violations. pealing sections 4601 to 4610 and 4614 to 4623 of this 4612. Missile proliferation control violations. title, enacting provisions set out as notes under this 4613. Chemical and biological weapons prolifera- section, and repealing provisions set out as notes under tion sanctions. this section and sections 4606 and 4609 of this title and 4614 to 4623. Repealed. section 3108 of Title 22, Foreign Relations and Inter-

§ 4601. Repealed. Pub. L. 115–232, div. A, title course] by exercising the authorities of the President under the International Emergency Economic Powers XVII, § 1766(a), Aug. 13, 2018, 132 Stat. 2232 Act (50 U.S.C. 1701 et seq.).’’ Section, Pub. L. 96–72, § 2, Sept. 29, 1979, 93 Stat. 503; TRANSITION PROVISIONS Pub. L. 99–64, title I, § 102, July 12, 1985, 99 Stat. 120; Pub. L. 103–199, title II, § 201(a), Dec. 17, 1993, 107 Stat. For provisions relating to continuation in effect of 2320, set forth Congressional findings with respect to delegations, rules, regulations, orders, determinations, the Export Administration Act of 1979. licenses, or other forms of administrative action that Section was formerly classified to section 2401 of the had been made, issued, conducted, or allowed to become former Appendix to this title prior to editorial reclassi- effective under this chapter as in effect on the day be- fication and renumbering as this section. fore August 13, 2018, and continuation in effect of cer- A prior section 2401 of the former Appendix to this tain determinations and references, see section 4826 of title, Pub. L. 91–184, § 2, Dec. 30, 1969, 83 Stat. 841; Pub. this title. L. 92–412, title I, § 102, Aug. 29, 1972, 86 Stat. 644; Pub. L. 93–500, § 4(a), Oct. 29, 1974, 88 Stat. 1553, set forth find- DIRECTOR OF NATIONAL INTELLIGENCE SUPPORT FOR ings of Congress with respect to the Export Adminis- REVIEWS OF INTERNATIONAL TRAFFIC IN ARMS REGU- tration Act of 1969, prior to the expiration of Pub. L. LATIONS AND EXPORT ADMINISTRATION REGULATIONS 91–184 on Sept. 30, 1979. Pub. L. 111–259, title IV, § 415, Oct. 7, 2010, 124 Stat. 2727, provided that: ‘‘The Director of National Intel- Statutory Notes and Related Subsidiaries ligence may provide support for any review conducted by a department or agency of the United States Gov- SHORT TITLE OF 1985 AMENDMENT ernment of the International Traffic in Arms Regula- Pub. L. 99–64, § 1, July 12, 1985, 99 Stat. 120, provided tions or Export Administration Regulations, including that: ‘‘Titles I and II of this Act [enacting sections 4051 a review of technologies and goods on the United States to 4053 of Title 15, Commerce and Trade, section 1864 of Munitions List and Commerce Control List that may Title 19, Customs Duties, and section 466c of Title 46, warrant controls that are different or additional to the Appendix, Shipping, amending this section and sections controls such technologies and goods are subject to at 4602 to 4606, 4609, 4610, 4614, 4615 to 4620, and 4622 of this the time of such review.’’ title, sections 5314 and 5315 of Title 5, Government Or- ganization and Employees, sections 2304 and 2778 of Executive Documents Title 22, Foreign Relations and Intercourse, and section 185 of Title 30, Mineral Lands and Mining, and enacting EX. ORD. NO. 12131. PRESIDENT’S EXPORT COUNCIL provisions set out as notes under sections 4604, 4605, and Ex. Ord. No. 12131, May 4, 1979, 44 F.R. 26841, as 4617 of this title and section 5314 of Title 5] may be amended by Ex. Ord. No. 12551, Feb. 21, 1986, 21 F.R. cited as the ‘Export Administration Amendments Act 6509; Ex. Ord. No. 12991, Mar. 6, 1996, 61 F.R. 9587; Ex. of 1985’.’’ Ord. No. 13138, § 5, Sept. 30, 1999, 64 F.R. 53880; Ex. Ord. SHORT TITLE OF 1981 AMENDMENT No. 13316, § 5, Sept. 17, 2003, 68 F.R. 55256; Ex. Ord. No. 13596, § 1, Dec. 19, 2011, 76 F.R. 80725, provided: Pub. L. 97–145, § 1, Dec. 29, 1981, 95 Stat. 1727, provided: By the authority vested in me as President by the ‘‘That this Act [amending sections 4605, 4610, 4614, and Constitution and statutes of the United States of 4620 of this title and enacting provisions set out as America, and in order to expand the membership of the notes under sections 4605, 4610, and 4620 of this title] President’s Export Council, in accord with the provi- may be cited as the ‘Export Administration Amend- sions of the Federal Advisory Committee Act ([former] ments Act of 1981’.’’ 5 U.S.C. App.) [see 5 U.S.C. 1001 et seq.], it is hereby or- dered as follows: SHORT TITLE Pub. L. 96–72, § 1, Sept. 29, 1979, 93 Stat. 503, which pro- 1–1. ESTABLISHMENT AND MEMBERSHIP vided that Pub. L. 96–72, which enacted this chapter, 1–101. There is established the President’s Export amended section 1732 of Title 7, Agriculture, sections Council. 2778 and 3108 of Title 22, Foreign Relations and Inter- 1–102. The membership of the Council shall be as fol- course, section 993 of Title 26, Internal Revenue Code, lows: and sections 6212 and 6274 of Title 42, The Public Health (a) The heads of the following executive departments, and Welfare, and enacted provisions set out as notes agencies, or offices, or their representatives: under former sections 4606 and 4609 of this title and sec- (1) Department of State. tion 3108 of Title 22, could be cited as the ‘‘Export Ad- (2) Department of the Treasury. ministration Act of 1979’’, was repealed by Pub. L. (3) Department of Agriculture. 115–232, div. A, title XVII, § 1766(a), Aug. 13, 2018, 132 (4) Department of Commerce. Stat. 2232. (5) Department of Labor. (6) Department of Energy. REPEAL OF EXPORT ADMINISTRATION ACT OF 1979 (7) Department of Transportation. Pub. L. 115–232, div. A, title XVII, § 1766(a), Aug. 13, (8) Department of Homeland Security. 2018, 132 Stat. 2232, provided that: ‘‘The Export Admin- (9) Office of United States Trade Representative. istration Act of 1979 (50 U.S.C. 4601 et seq.) (as contin- (10) Export-Import Bank of the United States. ued in effect pursuant to the International Emergency (11) Small Business Administration.