50 USC 4534 - Defense Production Act Fund

Collapse to view only § 4534. Defense Production Act Fund

§ 4531. Presidential authorization for the national defense
§ 4532. Loans to private business enterprises
§ 4533. Other presidential action authorized
§ 4534. Defense Production Act Fund
§ 4535. Reports on exercise of authorities

§ 4531. Presidential authorization for the national defense

(a) Expediting production and deliveries or services

(1) Authorized activities

(2) Presidential determinations requiredExcept during a period of national emergency declared by Congress or the President, a loan guarantee may be entered into under this section only if the President determines that—

(A) the loan guarantee is for an activity that supports the production or supply of an industrial resource, critical technology item, or material that is essential for national defense purposes;

(B) without a loan guarantee, credit is not available to the loan applicant under reasonable terms or conditions sufficient to finance the activity;

(C) the loan guarantee is the most cost effective, expedient, and practical alternative for meeting the needs of the Federal Government;

(D) the prospective earning power of the loan applicant and the character and value of the security pledged provide a reasonable assurance of repayment of the loan to be guaranteed;

(E) the loan to be guaranteed bears interest at a rate determined by the Secretary of the Treasury to be reasonable, taking into account the then-current average yield on outstanding obligations of the United States with remaining periods of maturity comparable to the maturity of the loan;

(F) the loan agreement for the loan to be guaranteed provides that no provision of the loan agreement may be amended or waived without the consent of the fiscal agent of the United States for the guarantee; and

(G) the loan applicant has provided or will provide—

(i) an assurance of repayment, as determined by the President; and

(ii) security—(I) in the form of a performance bond, insurance, collateral, or other means acceptable to the fiscal agent of the United States; and(II) in an amount equal to not less than 20 percent of the amount of the loan.

(3) Limitations on loansLoans under this section may be—

(A) made or guaranteed under the authority of this section only to the extent that an appropriations Act—

(i) provides, in advance, budget authority for the cost of such guarantees, as defined in section 661a of title 2; and

(ii) establishes a limitation on the total loan principal that may be guaranteed; and

(B) made without regard to the limitations of existing law, other than section 1341 of title 31.

(b) Fiscal agents of the United States

(1) In general

(2) Funds

(3) Limit on liability

(4) Reimbursements

(1) In general

(2) Other authorityThe President is authorized to prescribe—

(A) either specifically or by maximum limits or otherwise, rates of interest, guarantee and commitment fees, and other charges which may be made in connection with loans, discounts, advances, or commitments guaranteed by the guaranteeing agencies through fiscal agents under this section; and

(B) regulations governing the forms and procedures (which shall be uniform to the extent practicable) to be utilized in connection with such guarantees.

(d) Aggregate guarantee amounts

(1) Industrial resource and critical technology shortfalls

(A) In generalIf the making of any guarantee or obligation of the Federal Government under this subchapter relating to a domestic industrial base shortfall would cause the aggregate outstanding amount of all guarantees for such shortfall to exceed $50,000,000, any such guarantee may be made only—

(i) if the President has notified the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Financial Services of the House of Representatives in writing of the proposed guarantee; and

(ii) after the 30-day period following the date on which notice under clause (i) is provided.

(B) Waivers authorizedThe requirements of subparagraph (A) may be waived—

(i) during a period of national emergency declared by Congress or the President; or

(ii) upon a determination by the President, on a nondelegable basis, that a specific guarantee is necessary to avert an industrial resource or critical technology item shortfall that would severely impair national defense capability.

(2) Other limitationsThe authority conferred by this section shall not be used primarily to prevent the financial insolvency or bankruptcy of any person, unless—

(A) the President certifies that the insolvency or bankruptcy would have a direct and substantially adverse effect upon national defense production; and

(B) a copy of the certification under subparagraph (A), together with a detailed justification thereof, is transmitted to the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Financial Services of the House of Representatives not later than 10 days prior to the exercise of that authority for such use.

(Sept. 8, 1950, ch. 932, title III, § 301, as added Pub. L. 111–67, § 7, Sept. 30, 2009, 123 Stat. 2010.)

§ 4532. Loans to private business enterprises

(a) Loan authority

(b) Conditions of loansLoans may be made under this section on such terms and conditions as the President deems necessary, except that—

(1) financial assistance may be extended only to the extent that it is not otherwise available from private sources on reasonable terms; and

(2) during periods of national emergency declared by the Congress or the President, no such loan may be made unless the President determines that—

(A) the loan is for an activity that supports the production or supply of an industrial resource, critical technology item, or material that is essential to the national defense;

(B) without the loan, United States industry cannot reasonably be expected to provide the needed capacity, technological processes, or materials in a timely manner;

(D) the prospective earning power of the loan applicant and the character and value of the security pledged provide a reasonable assurance of repayment of the loan in accordance with the terms of the loan, as determined by the President; and

(E) the loan bears interest at a rate determined by the Secretary of the Treasury to be reasonable, taking into account the then-current average yield on outstanding obligations of the United States with remaining periods of maturity comparable to the maturity of the loan.

(1) made or guaranteed under the authority of this section only to the extent that an appropriations Act—

(A) provides, in advance, budget authority for the cost of such guarantees, as defined in section 661a of title 2; and

(B) establishes a limitation on the total loan principal that may be guaranteed; and

(2) made without regard to the limitations of existing law, other than section 1341 of title 31.

(d) Aggregate loan amounts

(1) In generalIf the making of any loan under this section to correct a shortfall would cause the aggregate outstanding amount of all obligations of the Federal Government under this subchapter relating to such shortfall to exceed $50,000,000, such loan may be made only—

(A) if the President has notified the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Financial Services of the House of Representatives, in writing, of the proposed loan; and

(B) after the 30-day period following the date on which notice under subparagraph (A) is provided.

(2) Waivers authorizedThe requirements of paragraph (1) may be waived—

(A) during a period of national emergency declared by the Congress or the President; and

(B) upon a determination by the President, on a nondelegable basis, that a specific loan is necessary to avert an industrial resource or critical technology shortfall that would severely impair national defense capability.

(Sept. 8, 1950, ch. 932, title III, § 302, as added Pub. L. 111–67, § 7, Sept. 30, 2009, 123 Stat. 2012.)

§ 4533. Other presidential action authorized

(a) In general

(1) In generalTo create, maintain, protect, expand, or restore domestic industrial base capabilities essential for the national defense, the President may make provision—

(A) for purchases of or commitments to purchase an industrial resource or a critical technology item, for Government use or resale;

(B) for the encouragement of exploration, development, and mining of critical and strategic materials, and other materials;

(D) for the increased use of emerging technologies in security program applications and the rapid transition of emerging technologies—

(i) from Government-sponsored research and development to commercial applications; and

(ii) from commercial research and development to national defense applications.

(2) Treatment of certain agricultural commodities

(3) Terms of salesNo commodity purchased under this subsection shall be sold at less than—

(A) the established ceiling price for such commodity, except that minerals, metals, and materials shall not be sold at less than the established ceiling price, or the current domestic market price, whichever is lower; or

(B) if no ceiling price has been established, the higher of—

(i) the current domestic market price for such commodity; or

(ii) the minimum sale price established for agricultural commodities owned or controlled by the Commodity Credit Corporation, as provided in section 1427 of title 7.

(4) Delivery dates

(5) Presidential determinationsExcept as provided in paragraph (7), the President may not execute a contract under this subsection unless the President, on a non-delegable basis, determines, with appropriate explanatory material and in writing, that—

(A) the industrial resource, material, or critical technology item is essential to the national defense;

(B) without Presidential action under this section, United States industry cannot reasonably be expected to provide the capability for the needed industrial resource, material, or critical technology item in a timely manner; and

(C) purchases, purchase commitments, or other action pursuant to this section are the most cost effective, expedient, and practical alternative method for meeting the need.

(6) Notification to Congress of shortfall

(A) In general

(B) Aggregate amounts

(7) Waivers authorizedThe requirements of paragraphs (1) through (6) may be waived—

(A) during a period of national emergency declared by the Congress or the President; or

(B) upon a determination by the President, on a nondelegable basis, that action is necessary to avert an industrial resource or critical technology item shortfall that would severely impair national defense capability.

(b) Exemption for certain limitations

(1) In generalThe President may take the actions described in paragraph (2), if the President finds that—

(A) under generally fair and equitable ceiling prices, for any raw or nonprocessed material, there will result a decrease in supplies from high-cost sources of such material, and that the continuation of such supplies is necessary to carry out the objectives of this subchapter; or

(B) an increase in cost of transportation is temporary in character and threatens to impair maximum production or supply in any area at stable prices of any materials.

(2) Subsidy payments authorized

(d) Incidental authority

(e) Installation of equipment in industrial facilities

(1) Installation authorizedIf the President determines that such action will aid the national defense, the President is authorized—

(A) to procure and install additional equipment, facilities, processes or improvements to plants, factories, and other industrial facilities owned by the Federal Government;

(B) to procure and install equipment owned by the Federal Government in plants, factories, and other industrial facilities owned by private persons;

(C) to provide for the modification or expansion of privately owned facilities, including the modification or improvement of production processes, when taking actions under section 4531 of this title, 4532 of this title, or this section; and

(D) to sell or otherwise transfer equipment owned by the Federal Government and installed under this subsection to the owners of such plants, factories, or other industrial facilities.

(2) IndemnificationThe owner of any plant, factory, or other industrial facility that receives equipment owned by the Federal Government under this section shall agree—

(A) to waive any claim against the United States under section 9607 or 9613 of title 42; and

(B) to indemnify the United States against any claim described in paragraph (1) made by a third party that arises out of the presence or use of equipment owned by the Federal Government.

(f) Excess metals, minerals, and materials

(1) In general

(2) Transfers at no charge

(g) Substitutes

(Sept. 8, 1950, ch. 932, title III, § 303, as added Pub. L. 111–67, § 7, Sept. 30, 2009, 123 Stat. 2013; amended Pub. L. 113–172, § 4(a), Sept. 26, 2014, 128 Stat. 1897.)

§ 4534. Defense Production Act Fund

(a) Establishment of Fund

(b) Moneys in Fund

There shall be credited to the Fund—

(1) all moneys appropriated for the Fund, as authorized by section 4561 of this title; and

(2) all moneys received by the Fund on transactions entered into pursuant to section 4533 of this title.

(d) Duration of Fund

(e) Fund balance

(f) Fund manager

The President shall designate a Fund manager. The duties of the Fund manager shall include—

(1) determining the liability of the Fund in accordance with subsection (g);

(2) ensuring the visibility and accountability of transactions engaged in through the Fund; and

(3) reporting to the Congress each year regarding activities of the Fund during the previous fiscal year.

(g) Liabilities against Fund

(Sept. 8, 1950, ch. 932, title III, § 304, as added Pub. L. 111–67, § 7, Sept. 30, 2009, 123 Stat. 2017.)

§ 4535. Reports on exercise of authorities

(a) In general

The President, or the head of an agency to which the President has delegated authorities under this subchapter, shall submit a report and provide a briefing to the appropriate congressional committees with respect to any action taken pursuant to such authorities—

(1) except as provided by paragraph (2), not later than 30 days after taking the action; and

(2) in the case of an action that involves a business concern in the United Kingdom or Australia, not later than 30 days before taking the action.

(b) Elements

(1) In general

Each report and briefing required by subsection (a) with respect to an action described in that subsection shall include—

(A) a justification of the necessity of the use of authorities under this subchapter; and

(B) a description of the financial terms of any related financial transaction.

(2) Additional elements relating to business concerns in the United Kingdom or Australia

Each report and briefing required by subsection (a) with respect to an action described in paragraph (2) of that subsection shall include, in addition to the elements under paragraph (1)—

(A) a certification that business concerns in the United States or Canada were not available with respect to the action; and

(B) an analysis of why such business concerns were not available.

In this section, the term “appropriate congressional committees” means—

(1) the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Financial Services of the House of Representatives; and

(2) in the case of an action described in subsection (a) involving materials critical to national security (as defined in section 4552(7)(B)(ii)(II)(bb) of this title), the Committee on Energy and Natural Resources of the Senate and the Committee on Natural Resources of the House of Representatives.

(Sept. 8, 1950, ch. 932, title III, § 305, as added Pub. L. 118–31, div. A, title X, § 1080(b), Dec. 22, 2023, 137 Stat. 416.)