The Defense Production Act of 1950: History, Authorities, and Considerations for Congress
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The Defense Production Act of 1950: History,
Authorities, and Considerations for Congress
Updated October 6, 2023
Congressional Research Service
https://crsreports.congress.gov
R43767
SUMMARY
The Defense Production Act of 1950: History,
Authorities, and Considerations for Congress
The Defense Production Act (DPA) of 1950 (P.L. 81-774, 50 U.S.C. §§4501 et seq.), as
amended, confers upon the President a broad set of authorities to influence domestic industry in
the interest of national defense. The authorities can be used across the federal government to
shape the domestic industrial base so that, when called upon, it is capable of providing essential
materials and goods needed for the national defense.
R43767
October 6, 2023
Alexandra G. Neenan
Analyst in U.S. Defense
Infrastructure Policy
Luke A. Nicastro
Analyst in U.S. Defense
Infrastructure Policy
Though initially passed in response to the Korean War, the DPA is historically based on the War
Powers Acts of World War II. Gradually, Congress has expanded the term national defense, as
defined in the DPA. Based on this definition, the scope of DPA authorities now extends beyond
shaping U.S. military preparedness and capabilities, as the authorities may also be used to
enhance and support domestic preparedness, response, and recovery from natural hazards, terrorist attacks, and other national
emergencies.
Current DPA authorities include:
•
Title I: Priorities and Allocations, which allows the President to require persons (including businesses
and corporations) to prioritize and accept contracts for materials and services as necessary to promote the
national defense.
•
Title III: Expansion of Productive Capacity and Supply, which allows the President to incentivize the
domestic industrial base to expand the production and supply of critical materials and goods. Authorized
incentives include loans, loan guarantees, direct purchases and purchase commitments, and the authority to
procure and install equipment in private industrial facilities.
•
Title VII: General Provisions, which includes key definitions for the DPA and several distinct authorities,
including the authority to establish voluntary agreements with private industry; the authority to block
proposed or pending foreign corporate mergers, acquisitions, or takeovers that threaten national security;
and the authority to employ persons of outstanding experience and ability and to establish a volunteer pool
of industry executives who could be called to government service in the interest of the national defense.
Generally speaking, these authorities are statutorily afforded to the President, who may in turn delegate them to other
executive branch officials. While DPA authorities are most frequently used by, and commonly associated with, the
Department of Defense (DOD), they can be—and have been—used by other government departments and agencies.
Since 1950, the DPA has been reauthorized and modified dozens of times. As most DPA authorities periodically terminate,
much of the legislation must be regularly reauthorized Congress last reauthorized the DPA in Section 1791 of the John S.
McCain National Defense Authorization Act for Fiscal Year 2019 (P.L. 115-232). This extended the termination of the act by
six years, from September 30, 2019, to September 30, 2025, when nearly all DPA authorities will terminate. A few
authorities of the DPA, such as the Exon-Florio Amendment (which established government review of the acquisition of U.S.
companies by foreigners) and anti-trust protections for certain voluntary industry agreements, have been made permanent by
Congress. The DPA lies within the legislative jurisdiction of the House Committee on Financial Services and the Senate
Committee on Banking, Housing, and Urban Affairs.
Congress may consider enhancing its oversight of executive branch activities related to the DPA in a number of ways. To
enhance oversight, Congress could expand executive branch reporting requirements, track and enforce rulemaking
requirements, review the activities of the Defense Production Act Committee, and broaden the committee oversight
jurisdiction of the DPA in Congress. Congress may also consider amending the DPA, either by creating new authorities or
repealing existing ones. In addition, Congress may consider amending the definitions of the DPA to expand or restrict the
DPA’s scope, amending the statute to supersede the President’s delegation of DPA authorities made in E.O. 13603, or
consider adjusting future appropriations to the DPA Fund in order to manage the scope of Title III projects initiated by the
President.
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Contents
Introduction ..................................................................................................................................... 1
History of the DPA .......................................................................................................................... 2
Origin ........................................................................................................................................ 2
Committee Jurisdiction ............................................................................................................. 2
History of DPA Reauthorizations .............................................................................................. 3
Major Authorities of the DPA .......................................................................................................... 3
General Scope of the DPA......................................................................................................... 4
Authorities under Title I of the DPA ......................................................................................... 5
Priorities and Allocations Authority.................................................................................... 5
Delegations of Title I Authorities ........................................................................................ 7
Examples of Use of Title I Authorities................................................................................ 8
Authorities Under Title III of the DPA ...................................................................................... 9
Loan Guarantees and Direct Loans ..................................................................................... 9
Purchase, Purchase Commitments, and Installation of Equipment................................... 10
Delegation of Section 301, 302, and 303 Authorities in E.O. 13603 ................................. 11
Defense Production Act Fund ........................................................................................... 12
Examples of Use of Title III Authorities ........................................................................... 13
Authorities Under Title VII of the DPA .................................................................................. 14
Special Preference for Small Businesses .......................................................................... 14
Definitions of Key Terms in the DPA ............................................................................... 14
Industrial Base Assessments ............................................................................................. 15
Voluntary Agreements ....................................................................................................... 15
Nucleus Executive Reserve............................................................................................... 16
Committee on Foreign Investment in the United States ................................................... 17
Termination of the Act ...................................................................................................... 18
Defense Production Act Committee.................................................................................. 19
Impact of Offsets Report ................................................................................................... 20
Considerations for Congress.......................................................................................................... 20
Enhancing Oversight ............................................................................................................... 20
Expanding Reporting or Notification Requirements ........................................................ 20
Enforcing and Revising Rulemaking Requirements ......................................................... 20
Broadening Committee Oversight Jurisdiction ................................................................. 21
Amending the Defense Production Act of 1950...................................................................... 21
Declaration of Policy ........................................................................................................ 22
Definitions ........................................................................................................................ 22
Amending the Delegations of Authority in E.O. 13603 .................................................... 22
Appropriations to the DPA Fund ....................................................................................... 23
Tables
Table 1. Appropriations to the DPA Fund, FY2013-FY2023 ........................................................ 12
Table A-1. Additional Resources by Defense Production Act Subject .......................................... 24
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Table A-2. Key Provisions of the Defense Production Act, Related Portions of Executive
Order 13603, and Associated Regulations ................................................................................. 25
Table A-3. Delegation of Priorities and Allocations Authorities to Cabinet Secretaries ............... 27
Table A-4. Chronology of Laws Reauthorizing the Defense Production Act of 1950 .................... 1
Appendixes
Appendix. Supplementary Tables .................................................................................................. 24
Contacts
Author Information.......................................................................................................................... 2
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Introduction
The Defense Production Act of 1950, as amended (DPA), provides the President a broad set of
authorities to ensure that domestic industry can meet national defense requirements.1 In the DPA,
Congress has found that “the security of the United States is dependent on the ability of the
domestic industrial base to supply materials and services for the national defense and to prepare
for and respond to military conflicts, natural or man-caused disasters, or acts of terrorism within
the United States.”2 Through the DPA, the President can, among other activities, prioritize
government contracts for goods and services over competing customers, and offer incentives
within the domestic market to enhance the production and supply of critical materials and
technologies when necessary for national defense. Since 1950, the DPA has been reauthorized
over 50 times by Congress, most recently in 2018 (Sec. 791 of P.L. 115-232). The majority of
DPA authorities will expire on September 30, 2025, unless reauthorized.
This report examines some of the extensive history of the DPA, focusing primarily on its creation
and most recent legislative reauthorization. This report also discusses the foremost active
authorities of the DPA. Nevertheless, this report is not intended to evaluate all authorities of the
DPA comprehensively. For example, though significant authorities for the Committee on Foreign
Investment in the United States (CFIUS) are included in the DPA, CFIUS is generally considered
separate and distinct from the DPA and this report defers to other CRS reports for in-depth
discussion on that issue.3 This report also identifies relevant delegations of the President’s DPA
authorities made in Executive Order (E.O.) 13603, National Defense Resources Preparedness.4
Finally, this report provides a brief overview of issues Congress may consider in its oversight of
executive branch use of DPA authorities, as well as the implementation of changes made in the
most recent reauthorization. The report also discusses congressional considerations for
expanding, restricting, or otherwise modifying the authorities provided by the DPA through new
legislation.
As appendices to this report, several supplementary tables provide: additional resources related to
various DPA subjects; a tabled analysis of key provisions of the DPA and related portions of E.O.
13603 and in regulations; the delegation of Title I priorities and allocations authority to Cabinet
Secretaries in E.O. 13603; and a chronology of laws reauthorizing DPA authorities since first
enactment. There is also an appendix discussing how DPA authorities changed as a result of the
last major reauthorization of the law that included reforms (P.L. 113-172, To reauthorize the
Defense Production Act, to improve the Defense Production Act Committee, and for other
purposes).5
1 50 U.S.C. §§4501 et seq. The DPA has been reclassified and renumbered from the former Appendix to Title 50 of the
U.S. Code, where it was numerated at 50 U.S.C. Appx. §§2061 et seq.
2 50 U.S.C. §4502(a)(1); Section 2(a)(1) of the DPA.
3 See CRS Report RL33388, The Committee on Foreign Investment in the United States (CFIUS), by James K. Jackson
(for further inquiries, congressional offices may contact Cathleen D. Cimino-Isaacs); and CRS In Focus IF10952,
CFIUS Reform Under FIRRMA, by James K. Jackson and Cathleen D. Cimino-Isaacs.
4 Executive Order 13603, “National Defense Resource Preparedness,” 77 Federal Register 16651, March 22, 2012.
5 These changes are discussed at length in this report, and are summarized in Table A-2 of the Appendix.
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History of the DPA
Origin
The DPA was modelled the First and Second War Powers Acts of 1941 and 1942, which gave the
executive branch broad authority to regulate industry during World War II.6 Much of this
authority lapsed after 1945, and the beginning of the Cold War (and particularly the June 1950
outbreak of the Korean War) led the Truman Administration to identify a need for greater
executive powers to control defense production and manage the nation’s economy.7
As initially enacted on September 8, 1950, the DPA granted broad authority to the President to
control aspects of industrial and economic policy.8 Containing seven separate titles, the legislation
allowed the President to, inter alia, demand that manufacturers give priority to defense
production, to requisition materials and property, expand government and private defense
production capacity, ration consumer goods, fix wage and price ceilings, force settlement of some
labor disputes, control consumer credit and regulate real estate construction credit and loans,
provide certain antitrust protections to industry, and establish a voluntary reserve of private sector
executives who would be available for emergency federal employment.
Of the DPA’s seven initial titles, four—Title II (Authority to requisition), Title IV (Price and wage
stabilization), Title V (Settlement of labor disputes), and Title VI (Control of consumer and real
estate credit)—terminated in 1953 when Congress allowed them to lapse.9
Committee Jurisdiction
Though commonly associated with national defense, the DPA currently lies within the jurisdiction
of the House Committee on Financial Services and the Senate Committee on Banking, Housing,
and Urban Affairs. This is a legacy of the DPA’s initial scope—because of the broad economic
6 First War Powers Act, 1941 (H.R. 6233, P.L. 77-354, 55 Stat. 838), and Second War Powers Act, 1942 (S. 2208, P.L.
77-507, 56 Stat. 176). The first of these statutes conferred considerable emergency power on the President to reorganize
the executive branch, to enter into contracts and make payments on them, and to regulate “trade with the enemy.” The
second act expanded the powers of the Interstate Commerce Commission to improve the efficiency of transportation of
war materials; expanded an existing authority for military departments to acquire private property by condemnation,
purchase, donation, or other transfer; permitted the Secretaries of War and the Navy to place orders and contracts and
the President to give such contracts priority over all deliveries for private accounts or for export; and gave the President
the authority to require acceptance of and performance under these contracts and to allocate materials and facilities for
their fulfillment. The act also empowered the President to obtain information, records, and reports sufficient to enforce
the provisions of the act and clarified existing law on the amount of compensation required if property was
requisitioned for defense purposes. The act also included provisions relating to free postage for members of the military
services, naturalization of persons serving in the armed forces, acceptance of conditional gifts to further the war
program, metal content of coinage, inspection and audit of war contractors, and the gathering and assessment of war
information by the Department of Commerce.
7 In a message sent to Congress at the outbreak of war in Korea in mid-1950, President Truman stated that the United
States and the United Nations were responding to a military invasion of the Republic of Korea by forces from north of
the 38th parallel, that the nation urgently needed additional military manpower, supplies, and equipment, and that the
nation’s military and economic preparedness were inseparable. He urged Congress to pass legislation that would
guarantee the prompt supply of adequate quantities of needed military and civilian goods, including measures to help
compensate for manufacturing demand growth caused by military expansion. For more history of the DPA, see U.S.
Congress, House Banking and the Currency, Defense Production Act of 1950, report to accompany H.R. 9176, 81st
Cong., 2nd sess., July 28, 1950, H.Rept. 81-2759 (Washington: GPO, 1950), p. 1.
8 P.L. 81-774, 64 Stat. 798.
9 P.L. 83-95, 67 Stat. 129. P.L. 83-95 permitted the termination of Titles II and VI as of June 30, 1953, and Titles IV
and V to terminate as of April 30, 1953.
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powers the legislation conferred upon the President, the bill that became the Defense Production
Act was assigned in 1950 to the House and Senate Committees on Banking and Currency (their
successors are the House Committee on Financial Services and the Senate Committee on
Banking, Housing, and Urban Affairs).10 Although the parts of the act dealing with the
requisitioning of materials, wages and prices, labor, and credit are no longer in force, these
committees have retained jurisdiction.
In addition to the standing committees of jurisdiction, the original statute created a Joint
Committee on Defense Production. This committee was composed of selected members from the
standing Committees on Banking and Currency of the Senate and House. This committee was
intended to review the programs established by the DPA and advise the standing committees
whenever they drafted legislation on the subject. Although the provision in the DPA establishing
the Joint Committee on Defense Production was officially repealed in 1992,11 in effect, the Joint
Committee has not existed since 1977, when salaries and expenses for the committee were last
funded.12
History of DPA Reauthorizations
The DPA has been amended and reauthorized numerous times since 1950. Aside from its initial
enactment, the most consequential modification of the DPA occurred in 1953, when P.L. 85-95
reauthorized Titles I, III, and VII while allowing Titles II, IV, V, and VI to expire.13 Like the War
Power Acts that preceded it, the DPA included a sunset provision that has required periodic
reauthorization and offered recurring opportunities for amendment. As of 2023, Congress has
reauthorized the DPA 53 times (including many short-term “stop-gap” extensions). From time to
time, the DPA has expired without Congress passing a law reauthorizing and extending its
termination date. In such circumstances, Congress has often ultimately passed a law retroactively
setting the effective date for the law to the previous expiration date. Most notably, for example,
the DPA expired on October 20, 1990, and was not reauthorized until August 17, 1991. However,
upon passage of P.L. 102-99, the effective date of the law was set to October 20, 1990. The DPA
was most recently reauthorized by the 115th Congress, in Section 1791 of the John S. McCain
National Defense Authorization Act for Fiscal Year 2019 (P.L. 115-232). This extended the
termination of the act by six years, from September 30, 2019, to September 30, 2025, when
nearly all DPA authorities will terminate. See Table A-4 in the Appendix for a full chronology of
reauthorizations.
Major Authorities of the DPA
This section provides summaries of the major authorities granted to the President in the three
remaining active titles of the DPA.14 Each summary describes how the DPA authorities are
delegated to Cabinet officials or other offices of the U.S. government in the issued Executive
10 Prior to 1975, House rules did not permit simultaneous referral of bills to two or more committees. Precedents in
both chambers did not allow divided or joint referrals, regardless of bill content. Instead, bills were assigned to
committees based on the preponderance of their subject matter.
11 Section 153 of the Defense Production Act Amendments of 1992 (P.L. 102-558, 106 Stat. 4219).
12 Although in 1977 Congress extended the 1950 Act through September 30, 1979 (P.L. 95-37), no appropriation for
salaries and expenses of the Joint Committee was made for FY1978. The last appropriation for salaries and expenses
for the Joint Committee was made in P.L. 94-440.
13 Act of June 30, 1953, Defense Production Act Amendments of 1953 (S. 1080, P.L. 83-95).
14 Titles I, III, and VII. The former Titles of the DPA (II, IV, V, and VI) terminated in 1953, but were officially
repealed in the Reauthorization of 2009.
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Order (E.O.) 13603, National Defense Resource Preparedness.15 It is not intended to
comprehensively evaluate all authorities in the DPA. The information provided below is reviewed
in Table A-2 for select provisions of the DPA. Table A-1 also provides a list of additional
materials, information, and resources on various topics of the DPA that may be of use to
Congress.
General Scope of the DPA
The DPA provides the President an “array of authorities to shape national defense preparedness
programs and to take appropriate steps to maintain and enhance the domestic industrial base.”16
[Italics added.] DPA authorities are tied to the definition of national defense, as the use of any
major DPA authority must be interpreted to promote, support, or otherwise be deemed needed or
essential for the national defense.17 National defense is currently defined in the statute as
programs for military and energy production or construction, military or critical
infrastructure assistance to any foreign nation, homeland security, stockpiling, space, and
any directly related activity. Such term includes emergency preparedness activities
conducted pursuant to title VI of The Robert T. Stafford Disaster Relief and Emergency
Assistance Act [42 U.S.C. §§5195 et seq.] and critical infrastructure protection and
restoration.18
Thus, the allowable use of DPA authorities extends beyond shaping U.S. military preparedness
and capabilities, including purposes such as domestic preparedness, response, and recovery from
hazards, terrorist attacks, and other national emergencies.19 This represents a substantial
expansion of the term’s initial definition—as originally enacted, the DPA defined national defense
as “the operations and activities of the armed forces, the Atomic Energy Commission, or any
other department or agency directly or indirectly and substantially concerned with the national
defense.”20
Another important definition affecting the scope of the DPA is that of the domestic industrial
base, which is currently defined in the statute as “domestic sources which are providing, or which
would be reasonably expected to provide, materials or services to meet national defense
requirements during peacetime, national emergency, or war.”21 Domestic sources, in turn, are
defined as businesses that perform contracted activities at, and source contracted components and
15 Executive Order 13603, “National Defense Resource Preparedness,” 77 Federal Register 16651, March 22, 2012.
E.O. 13603 replaced the previous E.O. 12919 on National Defense Industrial Resource Preparedness, which had been
issued by President William J. Clinton on June 3, 1994. See Executive Order 12919, “National Defense Industrial
Resources Preparedness,” 59 Federal Register 29525, June 7, 1994.
16 50 U.S.C. §4502(a)(4); Section 2(a)(4) of the DPA (emphasis added).
17 There are various references to national defense throughout the DPA. Some examples: Title I, Section 101 priorities
and allocations authority requires the President to deem action as “necessary or appropriate to promote the national
defense” (50 U.S.C. §4511(a)); Title III authorities can be used when “essential for the national defense” (50 U.S.C.
§§4531(a), 4532(a), 4533(a)); and Title VII voluntary agreement authority requires that the use helps “provide for the
national defense” (50 U.S.C. §4558(c)(1)).
18 50 U.S.C. §4552(14); Section 702(14) of the DPA. Title VI of the Stafford Act defines “emergency preparedness
activities” as any activities or measures “designed or undertaken to prepare for or minimize the effects of a hazard upon
the civilian population, to deal with the immediate emergency conditions which would be created by the hazard, and to
effectuate emergency repairs to, or the emergency restoration of, vital utilities and facilities destroyed or damaged by
the hazard.” 42 U.S.C. §5195(a)(3)
19 The most recent amendment to this definition occurred in 2009, when “critical infrastructure assistance to any
foreign nation” and “homeland security” were added. 123 Stat. 2017, Section 8 of P.L. 111-67.
20 See Section 702(d) of P.L. 81-774.
21 50 U.S.C. §4552(6).
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assemblies from, locations inside the United States or Canada.22 This definition is important
because the provision of assistance to private industry under DPA Title III authorities is restricted
to the domestic industrial base, meaning that only businesses in the United States and Canada that
meet the current definition are eligible to receive such assistance.
The DPA statute also includes congressional “Findings” and a “Statement of Policy.”23 This
section of the law provides additional guidance to the executive branch on why and how the DPA
authorities should be used. For example, the “Findings” section contains guidance on the
promotion of renewable energy sources:
to further assure the adequate maintenance of the domestic industrial base, to the maximum
extent possible, domestic energy supplies should be augmented through reliance on
renewable energy sources (including solar, geothermal, wind, and biomass sources), more
efficient energy storage and distribution technologies, and energy conservation measures.24
Similarly, the “Statement of Policy” includes the following language on the locations of defense
production sites:
It is the policy of the United States that... in order to ensure productive capacity in the event
of an attack on the United States, the United States Government should encourage the
geographic dispersal of industrial facilities in the United States to discourage the
concentration of such productive facilities within limited geographic areas that are
vulnerable to attack by an enemy of the United States. 25
Authorities under Title I of the DPA
Priorities and Allocations Authority
Section 101(a) of Title I of the DPA states
The President is authorized (1) to require that performance under contracts or orders (other
than contracts of employment) which he deems necessary or appropriate to promote the
national defense shall take priority over performance under any other contract or order,
and, for the purpose of assuring such priority, to require acceptance and performance of
such contracts or orders in preference to other contracts or orders by any person he finds
to be capable of their performance, and (2) to allocate materials, services, and facilities in
such manner, upon such conditions, and to such extent as he shall deem necessary or
appropriate to promote the national defense.26
The priority performance authority allows the federal government to ensure the timely
availability of critical materials, equipment, and services produced in the private market in the
interest of national defense, and to receive those materials, equipment, and services through
contracts before any other competing interest.27 Under the language of the DPA, a person
(including corporations, as defined in statute) is required to accept prioritized contracts/orders,
though regulations implementing Title I authorities provide practical exemptions to this
22 50 U.S.C. §4552 (8).
23 50 U.S.C. §4502; Section 2 of the DPA. This section comprises congressional findings, Section 2(a), and a statement
of policy of the United States, Section 2(b).
24 50 U.S.C. §4502(a)(6); Section 2(a)(6) of the DPA.
25 50 U.S.C. §4502(b)(6); Section 2(b)(6) of the DPA.
26 50 U.S.C. §4511(a); Section 101(a) of the DPA.
27 As noted in regulations for Title I authorities, especially 15 C.F.R. §700.1(b), this priority authority is broader than
similar priority authorities provided in other statutes including Section 18 of the Selective Service Act of 1948 (50
U.S.C. §3816).
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mandate.28 The limited allowances for when a person is required to or may optionally reject a
prioritized order can be superseded by the direction of the implementing federal department.29 In
executing a contract under the DPA, a contractor is not liable for actions taken to comply with
governing rules, regulations, and orders (e.g., prioritization requirements), including any rules,
regulations, or orders later declared legally invalid.30 The government can also prioritize the
performance of contracts between two private parties, such as a contract between a prime
contractor and a subcontractor, if needed to fulfill a priority contract and promote the national
defense.31
Title I also allows the President to allocate or control the general distribution of materials,
services, and facilities. Allocation authority relates historically to the controlled materials
programs of World War II, when the distribution of critical materials and resources had to be
managed to maximize the production of goods needed in the war effort.32 No allocation action has
been taken by the President since the end of the Cold War.33
There are several notable restrictions to the priorities and allocation authority. For example, it
cannot be used for contracts of employment.34Additionally, unless authorized by a joint resolution
of Congress, the authority cannot be used for wage or price controls. Private persons are also not
required to assist in the production or development of chemical or biological weapons unless
directly authorized by the President or a Cabinet secretary.35
Title I also contains several provisions related to domestic energy. Section 101(c) specifically
authorizes the President to allocate and prioritize contracts relating to materials, equipment, and
services to maximize domestic energy supplies in certain circumstances.36 However, Section
101(c) also restricts this use unless the President makes certain findings.37 Further, Section 105 of
28 50 U.S.C. §4552(15), Section 702(15) of the DPA, defines person as “individual, corporation, partnership,
association, or any other organized group of persons, or legal successor or representative thereof, or any State or local
government or agency thereof.” Contracts and “rated orders” have the same meaning in the regulations for Title I
authorities. See, for example, the definition for “rated order” provided by 15 C.F.R. §700.8.
29 See, for example, the regulations establishing standards and procedures for the use of the Secretaries of Agriculture,
Commerce, Energy, Health and Human Services, and Transportation delegated authorities under Title I of the DPA (7
C.F.R. §786.13, 15 C.F.R. §700.13, 10 C.F.R. §217.33, 45 C.F.R. §101.33, and 49 C.F.R. §33.33, respectively). These
regulations explain the circumstances under which a person may reject a prioritized contract, though these conditions
are limited by the clause “Unless otherwise directed by the [implementing department].” Additionally, President Biden
issued Presidential Determination No. 2022-11 in March 2022, determining that renewable domestic energy production
is essential to national defense.
30 50 U.S.C. §4557; Section 707 of the DPA. Immunity under this provision is limited, and does not confer blanket tort
immunity to a contractor for liability to injured third parties. Also, carrying out a contract according to its terms does
not necessarily entitle a contractor to be indemnified by the government when the resulting product injures third parties,
absent an indemnification clause in the contract. Hercules v. United States, 516 U.S. 417 (1996).
31 See, for example, 15 C.F.R. §700.3(d).
32 See further explanation of allocation authority in 15 C.F.R. §700.30.
33 Department of Homeland Security, The Defense Production Act Committee Report to Congress, Calendar Year 2017
Report to Congress, June 18, 2019, p. 11.
34 This restriction is written as a parenthetical in Section 101(a)(1), but is a considerable constraint on Title I priorities
authority.
35 50 U.S.C. §4514; Section 104 of the DPA. It should be noted that development and production of chemical weapons
and biological weapons are prohibited by the Chemical Weapons Convention (CWC) and the Biological Weapons
Convention (BWC), respectively. The United States is a state party to both of these international treaties and is legally
bound by their obligations and prohibitions.
36 50 U.S.C. §4511(c); Section 101(c) of the DPA.
37 50 U.S.C. §4511(c)(2); Section 101(c)(2) of the DPA stipulates that the Title I authority related to domestic energy
(continued...)
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the DPA restricts the authorities from being used to ration the end-use of gasoline without the
approval of Congress.38 Section 106 of Title I, as amended, also designates energy as a strategic
and critical material.39 This designation enables other authorities in the DPA, especially Title III
authorities discussed below, to be used for policy purposes related to energy.
Delegations of Title I Authorities
E.O. 13603 of March 16, 2012 provides for the delegation of the President’s priorities and
allocation authority to six different Cabinet Secretaries based upon their areas of expertise in
different resource and material sectors. These resource areas are further defined in Section 801 of
E.O. 13603. In practice, the priorities authority held by one Cabinet Secretary is frequently
allowed to be used by other federal agencies, thereby allowing one agency to use another
agency’s authorities (e.g., DHS was allowed to use the Department of Agriculture’s priorities
authority related to food resources).40 Table A-3 in the Appendix summarizes this delegation of
priorities and allocation authority. In addition, E.O. 13909 of March 18, 2020 delegated Title I
authority to the Secretary of Health and Human Services “with respect to all health and medical
resources needed to respond to the spread of COVID-19 within the United States.”41
In statute, Title I priorities and allocation authority can only be used to “promote national
defense.” In E.O. 13603, the President further constrained this authority so that it “may be used
only to support programs that have been determined in writing as necessary or appropriate to
promote the national defense” by either the Secretary of Defense, the Secretary of Homeland
Security, or the Secretary of Energy, depending on the issue involved. Once a program is
determined to promote the national defense, other Secretaries who have been delegated the
priorities and allocation authority can use their authority for those pre-designated program
purposes.
The Secretary of Defense makes determinations related to military production and construction,
military assistance to foreign nations, military use of civil transportation, stockpiles managed by
DOD, space, and directly related activities; the Secretary of Energy makes determinations related
to energy production and construction, distribution and use, and directly related activities; and the
“may not be used to require priority performance of contracts or orders, or to control the
distribution of any supplies of materials, services, and facilities in the marketplace, unless the
President finds that—
(A) such materials, services, and facilities are scarce, critical, and essential—
(i) to maintain or expand exploration, production, refining, transportation;
(ii) to conserve energy supplies; or
(iii) to construct or maintain energy facilities; and
(B) maintenance or expansion of exploration, production, refining, transportation, or conservation
of energy supplies or the construction and maintenance of energy facilities cannot reasonably be
accomplished without exercising the authority specified in paragraph (1) of this subsection.”
38 50 U.S.C. §4515; Section 105 of the DPA.
39 50 U.S.C. §4516; Section 106 of the DPA.
40 Department of Homeland Security, The Defense Production Act Committee: Report to Congress, Calendar Year
2017 Report, June 18, 2019, p. 11.
41 E.O. 13909, March 18, 2020, available online at https://www.federalregister.gov/documents/2020/03/23/202006161/prioritizing-and-allocating-health-and-medical-resources-to-respond-to-the-spread-of-covid-19.
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Secretary of Homeland Security makes determinations related to all other national defense
programs, including civil defense and continuity of government.42
Each of the six federal agencies to which the President delegated priorities and allocations
authority through E.O. 13603 are required by law to issue and annually review regulations that
“establish standards and procedures by which the priorities and allocations authority under this
section is used to promote the national defense, under both emergency and nonemergency
conditions.”43 Five of the six delegated the authority—the Departments of Agriculture,
Commerce, Energy, Health and Human Services, and Transportation—have issued those
regulations. DOD has not issued its regulation as it relates to using the priorities and allocation
authority for water resources, as of November 20, 2018. However, DOD has indicated that its
regulation is in preliminary draft.44 Historically, the Department of Commerce’s rule establishing
the Defense Priorities and Allocations System (DPAS) has been the most frequently used by the
executive branch. As encouraged by statute, the DPAS regulation was used as a model to create a
“consistent and unified Federal priorities and allocations system.”45 This system is referred to as
the “Federal Priorities and Allocations System” (FPAS).46 Each of the regulations that make up
the FPAS establish two levels of priority for issued orders notated as “DO” and “DX.” In the
DPAS regulations, a “DO” rating is lower than a “DX” rating. A “DO” rating order for a product
means that it must be prioritized over all other nonrated orders. However, if a product that has a
“DO” rated order is needed for a different “DX” rated order, the “DX” rated order takes
precedence. As a matter of practice, few select programs may receive a “DX” rating.47
Examples of Use of Title I Authorities
The authority to prioritize contracts is routinely employed by DOD. These prioritized contracts
are typically issued under the Department of Commerce’s (DOC’s) delegated authority with
respect to materials, services, and facilities, including construction materials, and under its
Defense Priorities and Allocations System (DPAS) regulations guiding the use of this authority.48
DOD has reported that it includes a priority rating as a standard clause in virtually all eligible
contracts and orders for items under DOC’s resource jurisdiction.49 Some past examples of
DOD’s use of Title I priorities authority include supporting the Integrated Ballistic Missile
Defense System, the B-2 Bomber, the VC-25A Presidential Aircraft (i.e., Air Force One), and
Mine Resistant Ambush Protected (MRAP) Vehicles.50
While the priorities authority was historically used less frequently by departments and agencies
outside of DOD, it has been used for a variety of purposes, including pandemic response,
42 See Section 202 of E.O. 13603. An example of a written determination, issued by the Department of Homeland
Security through FEMA, can be found at http://www.fema.gov/pdf/about/programs/dpa/signed-programdeterminations-100506.pdf.
43 50 U.S.C. §4511(d)(1), Sec. 101(d)(1) of the DPA.
44 Email response from Department of Defense, Legislative Affairs, November 8, 2018.
45 50 U.S.C. §4511(d)(2), Sec. 101(d)(2) of the DPA.
46 For additional information on FPAS, see FEMA’s website about it at https://www.fema.gov/federal-priorities-andallocations-system.
47 For a discussion of the different priority ratings, see 15 C.F.R. §700.11.
48 Ibid. DOD has been re-delegated authority by DOC to use their regulations and authorities for Title I priorities
authority.
49 Department of Homeland Security, The Defense Production Act Committee: Report to Congress, Calendar Year
2015 Report, June 16, 2016, p. 5.
50 For a list of Department of Defense programs that were approved for DX-rating as of March 2016, see
https://www.bis.doc.gov/index.php/forms-documents/pdfs/1257-dx-rated-program-list/file.
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terrorism prevention, and natural disaster preparedness. Much of this recent usage occurred in the
context of the COVID-19 pandemic: according to a 2021 Government Accountability Office
report, between March 2020 and September 2021, Title I authorities were used on at least 73
occasions for pandemic response purposes.51 Other non-COVID related uses outside the
traditional remit of DOD have included the prioritization of contracts in support of hurricane
mitigation activities in Louisiana (2013); disaster relief efforts in Puerto Rico (2017); and natural
gas procurement for state utilities facing blackouts (2001).52
The allocation authority supports the Civil Reserve Air Fleet (CRAF) program, which was created
initially in 1951, and is now managed by the U.S. Department of Transportation. Under the
CRAF program, civilian aircraft are “allocated” for the potential use, if required, by the DOD so
that it may augment its airlift capability with civilian aircraft during a national defense related
crisis. In return for their participation in the CRAF program, civilian carriers are given preference
in carrying commercial peacetime cargo and passenger traffic for the DOD.53
Authorities Under Title III of the DPA
Title III authorities are intended to help ensure that the nation has an adequate supply of, or the
ability to produce, essential materials and goods necessary for the national defense. Using Title III
authorities, the President may provide appropriate financial incentives to develop, maintain,
modernize, restore, and expand the production capacity of domestic sources for critical
components, critical technology items, materials, and industrial resources essential for the
execution of the national security strategy of the United States.54 The President may also use Title
III authorities to ensure that critical components, critical technology items, essential materials,
and industrial resources are available from reliable sources when needed to meet defense
requirements during peacetime, graduated mobilization, and national emergency.55
Loan Guarantees and Direct Loans
Sections 301 and 302 of Title III of the DPA authorize the President to issue loan guarantees and
direct loans to reduce current or projected shortfalls of industrial resources, critical technology
items, or essential materials needed for national defense purposes.56 Loan guarantees and direct
loans can be issued to private businesses to help them create, maintain, expedite, expand, protect,
or restore production and deliveries or services essential to the national defense.57 A direct loan is
51 “COVID-19: Agencies Are Taking Steps to Improve Future Use of Defense Production Act Authorities”,
Government Accountability Office, December 2021. Available online at https://www.gao.gov/assets/gao-22105380.pdf. For more information on the use of DPA authorities to respond to COVID-19, see CRS Insight IN11619,
New COVID-19 Defense Production Act (DPA) Actions: Implementation Considerations and CRS Insight IN11593,
New Presidential Directives on the Defense Production Act (DPA) and the COVID-19 Pandemic.
52 U.S. Congress, House Committee on Financial Services, Subcommittee on Monetary Policy and Trade,
Reauthorizing the Defense Production Act, 113th Cong., 1st sess., May 8, 2013, H.Hrg. 113-18 (Washington: GPO,
2013), p. 13. Department of Homeland Security, The Defense Production Act Committee: Report to Congress, Calendar
Year 2017 Report, June 18, 2018, p. 10. U.S. Congress, Senate Committee on Banking, Housing, and Urban Affairs,
California Energy Crisis and Use of the Defense Production Act, 107th Cong., 1st sess., February 9, 2001, S.Hrg. 107215 (Washington: GPO, 2001).
53 For more on the CRAF program, see U.S. Department of Transportation’s website on the program at
http://www.dot.gov/ost/oiser/craf.htm.
54 50 U.S.C. §4517; Section 107(a) of the DPA. Many of these terms are defined further in 50 U.S.C. §4552.
55 50 U.S.C. §4517; Section 107(b)(1) of the DPA.
56 50 U.S.C. §4531(a)(1). The beginning of 50 U.S.C. §4532(a) includes the same basic text as §4531(a)(1).
57 Ibid.
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a loan from the federal government to another government or private sector borrower that
requires repayment, with or without interest. A loan guarantee allows the federal government to
guarantee a loan made by a nonfederal lender to a nonfederal borrower, either by pledging to pay
back all or part of the loan in cases when the borrower is unable to do so. These authorities, for
instance, could be used to provide a loan, or to guarantee a loan, to a defense contractor that is
responsible for the provision of critical services essential to the national defense when credit is
otherwise unavailable in the private market.
There are a number of restrictions placed on the executive branch before these loan authorities
may be used in the interest of national defense. First, the budget authority for guarantees and
direct loans must be specifically included in appropriations passed by Congress and enacted by
the President before such loan mechanisms can be issued.58 Except during periods of national
emergency declared by Congress or the President,59 the DPA statute also requires the President to
determine that loan guarantees or direct loans meet a number of conditions before issuance. One
of the conditions in using the loan authority is that the loan or loan guarantee is the most costeffective, expedient, and practical alternative method for meeting the need.60 There are also a
number of determination requirements for loan guarantees and direct loans that may help ensure
that the loan is repaid by the recipient.61 For example, the President is required to determine that
there is “reasonable assurance” that a recipient of a loan or loan guarantee will be able to repay
the loan.62
Purchase, Purchase Commitments, and Installation of Equipment
Section 303 of Title III grants the President an array of authorities to create, maintain, protect,
expand, or restore domestic industrial base capabilities essential to the national defense.63 These
authorities include, but are not limited to
•
•
•
purchasing or making purchase commitments of industrial resources or critical
technology items;64
making subsidy payments for domestically produced materials;65 and
installing and purchasing equipment for government and privately owned
industrial facilities to expand their productive capacity.66
In general, Section 303 authorities can be used by the President to provide incentives for domestic
private industry to produce and supply critical goods that are necessary for the national defense.
The scope of Section 303 authorities allows for these incentives to be structured in a number of
ways, including direct purchases or subsidies of such goods. Therefore, whereas Title I authorities
help ensure that the government has priority access to goods that are already being produced by
58 See 50 U.S.C. §4531(a)(3) and 50 U.S.C. §4532(c).
59
See 50 U.S.C. §4531(a)(2) and 50 U.S.C. §4532(b)(2).
60 50 U.S.C. §4531(a)(2)(C) and 50 U.S.C. §4532(b)(2)(C).
61 See, for example, 50 U.S.C. §§4531(a)(2)(D), (E), (F) and (G) and 50 U.S.C. §§4532(b)(2)(D) and (E); which are
Sections 301(a)(2)(D), (E), and (F) and Sections 302(b)(2)(D) and (E) of the DPA, respectively.
62 See 50 U.S.C. §4531(a)(2)(D), Section 301(a)(2)(D) of the DPA.
63 50 U.S.C. §4533, Section 303 of the DPA.
64 50 U.S.C. §4533(a), Section 303(a)(1)(A) of the DPA. The terms “critical technology item” and “industry resource”
are further defined in 50 U.S.C. §4552, Section 702 of the DPA.
65 50 U.S.C. §4533(c), Section 303(c) of the DPA.
66 50 U.S.C. §4533(e), Section 303(e) of the DPA.
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domestic industries, Section 303 authorities help create a sufficient supply of these essential
goods in the interest of national defense.
Prior to using Section 303 authorities, the law requires the President, on a nondelegable basis, to
determine that there is a “domestic industrial base shortfall” for a particular industrial resource,
material, or critical technology item that threatens the national defense.67 This determination
includes finding that the industry of the United States cannot reasonably be expected to provide
the capability for the good in a timely manner, and that purchases, purchase commitments, or
other actions are the most cost effective, expedient, and practical alternative method for meeting
the need.68 For projects that cumulatively cost more than $50 million to address an industrial base
shortfall, the projects must first be authorized by an act of Congress. Additionally, the President is
required to notify the committees of jurisdiction, and give the committees 30 days to comment,
when the actions to remedy the shortfall are expected to exceed $50 million.69 Generally, very
few Title III projects exceed the $50 million threshold. The President is authorized to waive the
determination and notification provisions in periods of national emergency or in situations that
the President, on a nondelegable basis, determines the industrial base shortfall would severely
impair national defense.70
DOD’s Broad Agency Announcements Under the DPA
DOD’s DPA Title III office (located in the office of the Assistant Secretary of Defense for Industrial Base Policy)
sometimes issues Broad Agency Announcements requesting interested parties to submit white papers or
proposals for “projects that create, maintain, protect, expand, or restore domestic industrial base capabilities
essential for the national defense.” As an example, a 2018 announcement identified three broad focus areas for
potential projects:
•
Sustainment of Critical Production,
•
Commercialization of R&D Investments, and
•
Scaling of Emerging Technologies.
A Broad Agency Announcement is a method by which an agency solicits interest in solving a development
problem. No budget is allocated and no particular procurement approach is determined in advance. Such
announcements, however, often lead to a contract, grant, or some other financial agreement. (For more
information on this particular BPA, see https://www.businessdefense.gov/DPA-Title-III/Opportunities/.)
Delegation of Section 301, 302, and 303 Authorities in E.O. 13603
In E.O. 13603, the “head of each agency engaged in procurement for national defense” is
delegated the majority of the authorities of Sections 301, 302, and 303 of Title III of the DPA.71
These agencies are specifically identified in E.O. 13603.72 This delegation includes the ability to
67 The President previously delegated authority to make this determination to the “head of each agency engage[d] in
procurement for national defense” in Section 305(b) of E.O. 13603. However, changes to the DPA in P.L. 113-72 made
subsequent to the issuance of the E.O. 13603 have overridden these delegations because the President is no longer
allowed to delegate this determination and notification responsibility.
68 50 U.S.C. §4533(a)(5)(B) and (C), Section 303(a)(5)(B) and (C) of the DPA.
69 50 U.S.C. §4533(a)(6), Section 303(a)(6) of the DPA.
70 50 U.S.C. §4533(a)(7), Section 303(a)(7) of the DPA.
71 See Sections 301, 302, 303, 304, and 305 of E.O. 13603.
72 Section 801(h) of E.O. 13603 states “the heads of the Departments of State, Justice, the Interior, and Homeland
Security, the Office of the Director of National Intelligence, the Central Intelligence Agency, the National Aeronautics
and Space Administration, the General Services Administration, and all other agencies with authority delegated under
section 201 of this order.” Under Section 201 of the executive order, the additional agencies are the Departments of
Agriculture, Commerce, Defense, Energy, Health and Human Services, and Transportation.
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make all determinations not explicitly cited in the statute as being nondelegable.73 However, this
delegation does not include the authority to encourage the exploration, development, and mining
of strategic and critical materials and other materials. This authority is provided to the President
in the statute, and is delegated only to the Secretaries of Defense and the Interior.74
In addition, E.O. 13911 of March 27, 2020 delegated Title III authorities to the Secretary of
Health and Human Services and the Secretary of Homeland Security to “to respond to the spread
of COVID-19.”75
Defense Production Act Fund
Title III of the DPA establishes a Treasury account, the Defense Production Act Fund, which is
available to carry out all of the provisions and purposes of Title III. The DPA Fund is also used to
collect all proceeds from DPA activities under Title III, such as the resale of DPA-procured
commodities or products.76 The monies in the DPA Fund are available until expended. However,
the unobligated balance in the DPA Fund at the end of any fiscal year cannot exceed $750
million, excluding monies appropriated for that fiscal year.77
Table 1 provides the appropriations to the DPA Fund between FY2013 and FY2023. It is possible
for appropriations to the DPA Fund to be made in any of the bills providing funding to the
numerous agencies delegated Title III authorities; however, most recent discretionary
appropriations have come from defense appropriations acts.78 Recent appropriations to the DPA
Fund made through other legislative vehicles have included $500 million enacted through the
Inflation Reduction Act of 2022 (P.L. 117-169), $600 million enacted through the Additional
Ukraine Supplemental Appropriations Act, 2022 (P.L. 117-128), and $1 billion enacted through
the Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020 (P.L. 116-136).
Table 1. Appropriations to the DPA Fund, FY2013-FY2023
Amounts in millions
Fiscal Year
Law
Amount
2013
P.L. 113-6
$223.5
2014
P.L. 113-76
$60.1a
2015
P.L. 113-235
$51.6
2016
P.L. 114-113
$76.7
2017
P.L. 115-31
$64.1
2018
P.L. 115-141
$67.4
73 Section 305 of E.O. 13603.
74 In statute, see 50 U.S.C. §4533(a)(1)(B); Section 303(a)(1)(B) of the DPA. The authority is delegated in Section 306
of E.O. 13603. The Secretary of Interior is delegated this authority in consultation with the Secretary of Defense, as the
National Defense Stockpile Manager.
75 Sec. 2 of E.O. 13911.
76 50 U.S.C. §4534; Section 304 of the DPA.
77 50 U.S.C. §4534(e); Section 304(e) of the DPA. The obligation of funds is defined in the DOD Financial
Management Regulation as an “amount representing orders placed, contracts awarded, services received, and similar
transactions during an accounting period that will require payment during the same, or a future, period.” Office of the
Comptroller, Department of Defense, Financial Management Regulation, DOD 7000.14-R, Washington, DC, April
2015, p. Glossary-22.
78 See footnote 72 for an explanation and full list of the delegated agencies with Title III authorities.
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Fiscal Year
Law
Amount
2019
P.L. 115-245
$53.6
2020
P.L. 116-93 and P.L. 116-136
$1,064.4b
2021
P.L. 116-260
$174.6
2022
P.L. 117-103, P.L. 117-128, and P.L. 117-169.
$1,488.3c
2023
P.L. 117-328
$372.9
Source: CRS analysis of appropriations acts.
Notes: Amounts not adjusted for inflation.
a. In FYs 2014, 2015, and 2016, Congress also authorized the Department of Energy to transfer up to $45
million to the DPA Fund from each FY appropriation from the Energy Efficiency and Renewable Energy
account. For FY2014, see P.L. 113-76, 128 Stat. 165; for FY2015, see P.L. 113-235, 128 Stat. 2313; for
FY2016, P.L. 114-113, 129 Stat. 2408. These transfers were made by DOE, for a total of $135 million
b. $1 billion of the FY2020 total was appropriated by the CARES Act (P.L. 116-136) to “to prevent, prepare
for, and respond to coronavirus, domestically or internationally.”
c. Of the $1.488.3 billion appropriated in FY2022, $600 million was appropriated by the Additional Ukraine
Supplemental Appropriations Act, 2022 (P.L. 117-128) “to respond to the situation in Ukraine and for
related expenses” and $500 million was appropriated by the Inflation Reduction Act of 2022 (P.L. 117-169).
The President is required to designate a “Fund manager” to carry out general accounting
functions for the fund.79 The Secretary of Defense has been designated to be the Fund Manager in
E.O. 13603.80 As the Fund Manager, the Secretary of Defense (or official to whom the authority is
further delegated in DOD) is responsible for the financial accounting of the fund, but does not
necessarily have decision-making authority over the use of the fund.
Examples of Use of Title III Authorities
Successive presidential administrations have made extensive use of Title III authorities to expand
productive capacity for capabilities deemed essential for national defense. Examples of Title III
actions taken in 2023 include:
•
•
79
A $90 million agreement with Albemarle Corporation “to support the expansion
of domestic mining and production of lithium” (September 2023);81
A $20.6 million agreement with Talon Nickel, LLC “to increase the domestic
production of nickel” (September 2023);82
50 U.S.C. §4534(f); Section 304(f) of the DPA.
80 Section 309 of E.O. 13603.
81 According to DOD, this action utilized funds appropriated by the Inflation Reduction Act of 2022. DOD, “DoD
Enters Agreement to Expand Domestic Lithium Mining for U.S. Battery Supply Chains,” DOD News, September 12,
2023, at https://www.defense.gov/News/Releases/Release/Article/3522657/dod-enters-agreement-to-expand-domesticlithium-mining-for-us-battery-supply-ch/.
82 According to DOD, this action utilized funds appropriated by the Additional Ukraine Supplemental Appropriations
Act of 2022. DOD, “Department of Defense Enters an Agreement to Strengthen the U.S. Supply Chain for Nickel
Production,” DOD News, September 12, 2023, at
https://www.defense.gov/News/Releases/Release/Article/3522652/department-of-defense-enters-an-agreement-tostrengthen-the-us-supply-chain-for/.
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•
•
•
A $37.5 million agreement with Graphite One (Alaska) “to secure a reliable,
sustainable supply of graphite materials within the U.S. to be used in the
production of large-capacity batteries” (July 2023);83
A $45.5 million agreement with Arconic Corporation “to increase production of
High Purity Aluminum (HPA) for use in missile and munition production” (June
2023);84 and
A $ 15 million agreement with Jervois Mining USA “to conduct feasibility
studies to expand cobalt extraction in Idaho.”85
Authorities Under Title VII of the DPA
Title VII of the DPA contains various provisions that 1) clarify how DPA authorities can and
should be used, and 2) provide additional presidential authorities. Some significant provisions of
Title VII are summarized below.
Special Preference for Small Businesses
Two provisions in the DPA direct the President to accord special preference to small businesses
when issuing contracts under DPA authorities. Section 701 reiterates86 and expands upon a
requirement in Section 108 of Title I directing the President to “accord a strong preference for
small business concerns which are subcontractors or suppliers, and, to the maximum extent
practicable, to such small business concerns located in areas of high unemployment or areas that
have demonstrated a continuing pattern of economic decline, as identified by the Secretary of
Labor.”87
Definitions of Key Terms in the DPA
The DPA statute historically has included a section of definitions.88 Though national defense is
perhaps the most important term, there are additional definitions provided both in current law and
in E.O. 13603.89 Over time, the list of definitions provided in both the law and implementing
83 According to DOD, this action utilized funds appropriated by the Inflation Reduction Act of 2022. DOD, “DOD
Enters Agreement to Expand Capabilities for Domestic Graphite Mining and Processing for Large-Capacity Batteries,”
DOD News, July 17, 2023, at https://www.defense.gov/News/Releases/Release/Article/3459556/dod-enters-agreementto-expand-capabilities-for-domestic-graphite-mining-and-pr/.
84 According to DOD, this action utilized funds appropriated by the Additional Ukraine Supplemental Appropriations
Act of 2022. DOD, “DoD Enters Agreement to Expand Domestic Manufacturing to Strengthen U.S. Missiles and
Munitions Supply Chains,” DOD News, June 16, 2023, at
https://www.defense.gov/News/Releases/Release/Article/3431173/dod-enters-agreement-to-expand-domesticmanufacturing-to-strengthen-us-missiles/.
85 According to DOD, this action utilized funds appropriated by the Additional Ukraine Supplemental Appropriations
Act of 2022. DOD, “DOD Enters Agreement to Expand Domestic Manufacturing and Strengthen U.S. Cobalt Supply
Chains,” DOD News, June 15, 2023, at https://www.defense.gov/News/Releases/Release/Article/3429442/dod-entersagreement-to-expand-domestic-manufacturing-and-strengthen-us-cobalt/.
86 50 U.S.C. §4551; Section 701 of the DPA.
87 50 U.S.C. §4518; Section 108(a) of the DPA.
88 The original law provided five definitions, including a definition of “national defense.” See Section 702 of P.L. 81774.
89 In total, there are 17 terms defined in law in 50 U.S.C. §4552, and 13 additional definitions in Section 801 of E.O.
13603.
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executive orders has been added to and edited, most recently in 2009, when Congress added a
definition for homeland security90 to place it within the context of national defense.91
Industrial Base Assessments
To appropriately use numerous authorities of the DPA, especially Title III authorities, the
President may require a detailed understanding of current domestic industrial capabilities and
therefore need to obtain extensive information from private industries. Under Section 705 of the
DPA, the President may “by regulation, subpoena, or otherwise obtain such information from ...
any person as may be necessary or appropriate, in his discretion, to the enforcement or the
administration of this Act [the DPA].”92 This authority is delegated to the Secretary of Commerce
in E.O. 13603.93 Though this authority has many potential implications and uses, it is most
commonly associated with what the DOC’s Bureau of Industry and Security calls “industrial base
assessments.”94 These assessments are often conducted in coordination with other federal
agencies and the private sector to “monitor trends, benchmark industry performance, and raise
awareness of diminishing manufacturing capabilities.”95 The statute requires the President to
issue regulations to insure that the authority is used only after “the scope and purpose of the
investigation, inspection, or inquiry to be made have been defined by competent authority, and it
is assured that no adequate and authoritative data are available from any Federal or other
responsible agency.”96 This regulation has been issued by DOC.97
Voluntary Agreements
Normally, voluntary agreements or plans of action between competing private industry interests
could be subject to legal sanction under anti-trust statutes or contract law. Title VII of the DPA
authorizes the President to “consult with representatives of industry, business, financing,
agriculture, labor, and other interests in order to provide for the making by such persons, with the
approval of the President, of voluntary agreements and plans of action to help provide for the
national defense.”98 The President must determine that a “condition exists which may pose a
direct threat to the national defense or its preparedness programs”99 prior to engaging in the
consultation process. Following the consultation process, the President or presidential delegate
may approve and implement the agreement or plan of action.100 Parties entering into such
90 50 U.S.C. §4552(11). Homeland security means efforts “(A) to prevent terrorist attacks within the United States; (B)
to reduce the vulnerability of the United States to terrorism; (C) to minimize damage from a terrorist attack in the
United States; and (D) to recover from a terrorist attack in the United States.”
91 123 Stat 2017-2018. Congress amended, in addition to the definition of national defense, the existing definitions of
critical component, critical technology, domestic industrial base, industrial resources, and services. Congress struck
the definitions for critical industry for national security, essential weapon system, and small business concern owned
and controlled by socially and economically disadvantaged individuals. Congress added the definitions guaranteeing
agency and homeland security.
92 50 U.S.C. §4555(a); Section 705(a) of the DPA.
93 Generally, see Section 104(d) of E.O. 13603.
94 For examples of some publicly available industrial base assessments, see the agency’s website at
http://www.bis.doc.gov/index.php/other-areas/office-of-technology-evaluation-ote/industrial-base-assessments.
95 Ibid.
96 50 U.S.C. §4555(a); Section 705(a) of the DPA.
97 See 15 C.F.R. Part 702.
98 50 U.S.C. §4558(c)(1); Section 708(c)(1) of the DPA.
99 Ibid. The consultation process is described in 50 U.S.C. §§4558(d) and (e); Section 708(d) and (e) of the DPA.
100 50 U.S.C. §4558(f); Section 708(f) of the DPA.
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voluntary agreements are afforded a special legal defense if their actions within that agreement
would otherwise violate antitrust or contract laws.101 Historically, the National Infrastructure
Advisory Council noted that the voluntary agreement authority has been used to “enable
companies to cooperate in weapons manufacture, solving production problems and standardizing
designs, specifications and processes,” among other examples.102 It could also be used, for
example, to develop a plan of action with private industry for the repair and reconstruction of
major critical infrastructure systems following a domestic disaster.
The authority to establish a voluntary agreement has been delegated to the head of any federal
department or agency otherwise delegated authority under any other part of E.O. 13603.103 Thus,
the authority could be potentially used by a large group of federal departments and agencies. Use
of these voluntary agreements is tracked by the Secretary of Homeland Security,104 who is tasked
under E.O. 13603 with issuing regulations that are required by law on the “standards and
procedures by which voluntary agreements and plans of action may be developed and carried
out.”105 The Federal Emergency Management Agency (FEMA), which at the time was an
independent agency and tasked with these responsibilities under the DPA, issued regulations in
1981 to fulfill this requirement.106 FEMA is now a part of DHS, and those regulations remain in
effect.
The Maritime Administration (MARAD) of the U.S. Department of Transportation manages the
only currently established voluntary agreements in the federal government, the Voluntary
Intermodal Sealift Agreement (commonly referred to as “VISA”) and the Voluntary Tanker
Agreement. These programs are maintained in partnership with the U.S. Transportation
Command of DOD, and have been established to ensure that the maritime industry can respond to
the rapid mobilization, deployment, and transportation requirements of DOD. Voluntary
participants from the maritime industry are solicited to join the agreements annually.107
Nucleus Executive Reserve
Title VII of the DPA authorizes the President to establish a volunteer body of industry executives,
the “Nucleus Executive Reserve,” or more frequently called the National Defense Executive
Reserve (NDER).108 The NDER would be a pool of individuals with recognized expertise from
various segments of the private sector and from government (except full-time federal employees).
These individuals would be brought together for training in executive positions within the federal
government in the event of an emergency that requires their employment. The historic concept of
101 50 U.S.C. §4558, Section 708 of the DPA provides a legal defense to parties of voluntary agreements or plans of
action that can be used in civil suits or criminal actions brought against them under anti-trust laws (§4558(j)) or for
breach of contract (§2158(o)). These exemptions do not grant them blanket immunity from these laws.
102 The National Infrastructure Advisory Council, Framework for Dealing with Disasters and Related
Interdependencies: Final Report and Recommendations, Appendix G: The Defense Production Act, Washington, DC,
July 14, 2009, p. 45, at http://www.dhs.gov/xlibrary/assets/niac/niac_framework_dealing_with_disasters.pdf.
103 Section 401 of E.O. 13603.
104 Section 401 of E.O. 13603.
105 50 U.S.C. §4558(e); Section 708(e) of the DPA.
106 FEMA’s regulations can be found at 44 C.F.R. Part 332. They were issued at Federal Emergency Management
Agency, “Voluntary Agreements: Standards and Procedures,” 46 Federal Register 2349, January 9, 1981.
107 For more, see approval of the VISA program in the Federal Register at Maritime Administration, “Voluntary
Intermodal Sealift Agreement,” 79 Federal Register 64462, October 29, 2014. See also MARAD’s website at
https://www.marad.dot.gov/ships-and-shipping/strategic-sealift/voluntary-intermodal-sealift-agreement-visa/.
108 50 U.S.C. §4560(e); Section 710(e) of the DPA.
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the NDER has been used as a means of improving the war mobilization and productivity of
industries.109
The head of any governmental department or agency may establish a unit of the NDER and train
its members.110 No NDER unit is currently active, though the statute and E.O. 13603 still provide
for this possibility. Units may be activated only when the Secretary of Homeland Security
declares in writing that “an emergency affecting the national defense exists and that the activation
of the unit is necessary to carry out the emergency program functions of the agency.”111
Committee on Foreign Investment in the United
States112
The Committee on Foreign Investment in the United States (CFIUS) is an interagency committee
that serves the President in overseeing the national security implications of foreign investment in
the economy. It reviews foreign investment transactions to determine if (1) they threaten to impair
U.S. national security; (2) the foreign investor is controlled by a foreign government; or (3) the
transaction could affect homeland security or would result in control of any critical infrastructure
that could impair the national security. The President has the authority to block proposed or
pending foreign investment transactions that threaten to impair the national security.
CFIUS initially was created and operated through a series of Executive Orders.113 In 1988,
Congress passed the “Exon-Florio” amendment to the DPA, granting the President authority to
review certain corporate mergers, acquisitions, and takeovers, and to investigate the potential
impact on national security of such actions.114 This amendment codified the CFIUS review
process due in large part to concerns over acquisitions of U.S. defense-related firms by Japanese
investors. In 2007, amid growing concerns over the proposed foreign purchase of commercial
operations of six U.S. ports, Congress passed the Foreign Investment and National Security Act
of 2007 (P.L. 110-49) to create CFIUS in statute.
109 President Dwight D. Eisenhower created the NDER in 1956 by issuing E.O.10660 under the authorities granted in
Title VII. It has served as a vehicle for training highly qualified private industry executives in war production
mobilization should the nation be faced with the need to place the nation’s industrial base on a war footing. This
program was inspired by the experiences of the War Industries Board of World War I and the War Production Board of
World War II, when corporate executives were brought into government service, often with little or no compensation,
to organize the nation’s industries for war production. For background on the origins and operation of the War
Industries Board, see Paul A. C. Koistinen, “The ‘Industrial-Military Complex’ in Historical Perspective: World War
I,” The Business History Review, vol. 41, no. 4 (Winter 1967), pp. 378-403; and Robert D. Cuff, “A ‘Dollar-a-Year
Man’ in Government: George N. Peek and the War Industries Board,” The Business History Review, vol. 41, no. 4
(Winter 1967), pp. 404-420.
110 Section 501(c) in E.O. 13603.
111 Section 501(e) in E.O. 13603.
112 This section was written by James K. Jackson, Specialist in International Trade and Finance, and Cathleen CiminoIsaacs, Analyst in International Trade and Finance. For more information on CFIUS, see CRS Report RL33388, The
Committee on Foreign Investment in the United States (CFIUS), by James K. Jackson (for further inquiries,
congressional offices may contact Cathleen D. Cimino-Isaacs), and CRS In Focus IF10952, CFIUS Reform Under
FIRRMA, by James K. Jackson and Cathleen D. Cimino-Isaacs.
113 The various CFIUS authorities are not delegated by the President in E.O. 13603 with the majority of other DPA
authorities. Rather, CFIUS authorities are delegated by the President in E.O. 11858, Foreign Investment in the United
States, as amended, which was originally issued in 1975 but has been amended since then (notably by E.O. 13456,
Further Amendment of Executive Order 11858 Concerning Foreign Investment in the United States). See Executive
Order 13456, “Foreign Investment in the United States,” 73 Federal Register 4677, January 25, 2008.
114 50 U.S.C. §4565; Section 721 of the DPA.
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On August 13, 2018, President Trump signed into law new rules governing national security
reviews of foreign investment, known as the Foreign Investment Risk Review Modernization Act
(FIRRMA, Title XVII, P.L. 115-235).115 FIRRMA amends several aspects of the CFIUS review
process under Section 721 of the DPA.116 Notably, it expands the scope of transactions that fall
under CFIUS’ jurisdiction. It maintains core components of the current CFIUS process for
evaluating proposed or pending investments in U.S. firms, but increases the allowable time for
reviews and investigations. Upon receiving written notification of a proposed acquisition, merger,
or takeover of a U.S. firm by a foreign investor, the CFIUS process can proceed potentially
through three steps: (1) a 45-day national security review; (2) a 45-day maximum national
security investigation (with an option for a 15-day extension for “extraordinary circumstances”);
and (3) a 15-day maximum Presidential determination. The President can exercise his authority to
suspend or prohibit a foreign investment, subject to a CFIUS review, if he finds that (1) “credible
evidence” exists that the foreign investor might take action that threatens to impair the national
security; and (2) no other laws provide adequate and appropriate authority for the President to
protect national security. FIRRMA shifts the filing requirement for foreign investors from
voluntary to mandatory in certain cases, and provides a two-track method for reviewing certain
investment transactions. Other changes mandated by FIRRMA would provide more resources for
CFIUS, add new reporting requirements, and reform export controls.
Termination of the Act
Title VII of the DPA also includes a “sunset” clause for the majority of the DPA authorities. All
DPA authorities in Titles I, III, and VII have a termination date, with the exception of four
sections.117 As explained in Section 717 of the DPA, the sections that are exempt from termination
are
•
•
•
•
50 U.S.C. §4514, Section 104 of the DPA that prohibits both the imposition of
wage or price controls without prior congressional authorization and the
mandatory compliance of any private person to assist in the production of
chemical or biological warfare capabilities;
50 U.S.C. §4557, Section 707 of the DPA that grants persons limited immunity
from liability for complying with DPA-authorized regulations;
50 U.S.C. §4558, Section 708 of the DPA that provides for the establishment of
voluntary agreements; and
50 U.S.C. §4565, Section 721 of the DPA, the so-called Exon-Florio
Amendment, that gives the President and CFIUS review authority over certain
corporate acquisition activities.
P.L. 115-232 extended the termination date of Section 717 from September 30, 2019, to
September 30, 2025. In addition, Section 717(c) provides that any termination of sections of the
DPA “shall not affect the disbursement of funds under, or the carrying out of, any contract,
guarantee, commitment or other obligation entered into pursuant to this Act” prior to its
termination. This means, for instance, that prioritized contracts or Section 303 projects created
with DPA authorities prior to September 30, 2025, would still be executed until completion even
115 For more detail on FIRRMA, see CRS In Focus IF10952, CFIUS Reform Under FIRRMA, by James K. Jackson and
Cathleen D. Cimino-Isaacs.
116 For the U.S. Treasury’s summary and FAQs of the changes, see https://home.treasury.gov/policy-issues/
international/the-committee-on-foreign-investment-in-the-united-states-cfius.
117 123 Stat. 2006; 50 U.S.C. §4564.
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if the DPA is not reauthorized. Similarly, the statute specifies that the authority to investigate,
subpoena, and otherwise collect information necessary to administer the provisions of the act, as
provided by Section 705 of the DPA, will not expire until two years after the termination of the
DPA.118 For a chronology of all laws reauthorizing the DPA since inception, see Table A-4.
Defense Production Act Committee
The Defense Production Act Committee (DPAC) is an interagency body originally established by
the 2009 reauthorization of the DPA.119 Originally, the DPAC was created to advise the President
on the effective use of the full scope of authorities of the DPA. Now, the law requires DPAC to be
centrally focused on the priorities and allocations authorities of Title I of the DPA.
The statute assigns membership in the DPAC to the head of each federal agency delegated DPA
authorities, as well as the Chairperson of the Council of Economic Advisors. A full list of the
members of the DPAC is included in E.O. 13603.120 As stipulated in law, the Chairperson of the
DPAC is to be the “head of the agency to which the President has delegated primary
responsibility for government-wide coordination of the authorities in this Act.”121 As currently
established in E.O. 13603 delegations, the Secretary of Homeland Security is the chair-designate,
but the language of the law could allow the President to appoint another Secretary with revision
to the E.O.122 The Chairperson of the DPAC is also required to appoint one full-time employee of
the federal government to coordinate all the activities of the DPAC. Congress has exempted the
DPAC from the requirements of the Federal Advisory Committee Act.123
The DPAC has annual reporting requirements relating to the Title I priority and allocation
authority, and is also required to include updated copies of Title I-related rules in its report. The
annual report also contains, among other items, a “description of the contingency planning ... for
events that might require the use of the priorities and allocations authorities” and
“recommendations for legislative actions, as appropriate, to support the effective use” of the Title
I authorities.124 The DPAC report is provided to the Senate Committee on Banking, Housing, and
Urban Affairs and the House Committee on Financial Services.
118 50 U.S.C. §4555(a); Section 705(a) of the DPA. Thus, under current law, Section 705 authority would expire on
September 30, 2027.
119 P.L. 111-67, 123 Stat. 2019-2020. The DPAC is now authorized in Section 722 of the DPA, 50 U.S.C. §4567.
120 Section 701 of E.O. 13603. The DPAC is composed of the Secretaries of Agriculture; Commerce; Defense; Energy;
Labor; Health and Human Services; Homeland Security; the Interior; Transportation; the Treasury, and State; the
Attorney General; the Administrator of the National Aeronautics and Space Administration; the Administrator of
General Services; the Chair of the Council of Economic Advisers; and the Directors of the Central Intelligence Agency
and of National Intelligence. In addition, the Director of the Office of Management and Budget and the Director of the
Office of Science and Technology Policy serve in an advisory role.
121 See Section 722(b)(2) of the DPA; 50 U.S.C. §4567(b)(2).
122 See Section 104(b)(2) of E.O. 13603, which includes as one of the responsibilities of the Secretary of Homeland
Security to “provide for the central coordination of the plans and programs incident to authorities and functions
delegated under this order.... ” Given this language, the Secretary of Homeland Security is the Chairperson, though a
change to E.O. 13603 (or a different interpretation of E.O. 13603 by the Administration), could allow for another
Chairperson to be designated.
123 Section 722(e) of the DPA; 50 U.S.C. §4567(e). For more on the Federal Advisory Committee Act, see CRS Report
R44253, Federal Advisory Committees: An Introduction and Overview, by Meghan M. Stuessy.
124 See Section 722(d) of the DPA; 50 U.S.C. §4567(d).
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Impact of Offsets Report
Offsets are industrial compensation practices that foreign governments or companies require of
U.S. firms as a condition of purchase in either government-to-government or commercial sales of
defense articles and/or defense services as defined by the Arms Export Control Act (22 U.S.C.
§2751, et seq.) and the International Traffic in Arms Regulations (22 C.F.R. §§120-130). In the
defense trade, such industrial compensation can include mandatory co-production, licensed
production, subcontractor production, technology transfer, and foreign investment.
The Secretary of Commerce is required by law to prepare and to transmit to the appropriate
congressional committees an annual report on the impact of offsets on defense preparedness,
industrial competitiveness, employment, and trade. Specifically, the report discusses “offsets” in
the government or commercial sales of defense materials.125
Considerations for Congress
Enhancing Oversight
Expanding Reporting or Notification Requirements
Congress may consider whether to add more extensive notification and reporting requirements on
the use of all or specific authorities in the DPA. These reporting or notification requirements
could be added to the existing law, or could be included in conference or committee reports
accompanying germane legislation, such as appropriations bills or the National Defense
Authorization Act. Additional reporting or notification requirements could involve formal
notification of Congress prior to or after the use of certain authorities under specific
circumstances. For example, Congress may consider whether to require the President to notify
Congress (or the oversight committees) when the priorities and allocations authority is used on a
contract valued above a threshold dollar amount.126 Congress might also consider expanding the
existing reporting requirements of the DPAC, to include semi-annual updates on the recent use of
authorities or explanations about controversial determinations made by the President. Existing
requirements could also be expanded from notifying/reporting to the committees of jurisdiction to
Congress as a whole, or to include other interested committees, such as the House and Senate
Armed Services Committees.
Enforcing and Revising Rulemaking Requirements
Congress may consider reviewing the agencies’ compliance with existing rulemaking
requirements. A rulemaking requirement exists for the voluntary agreement authority in Title VII
that has been completed by DHS, but it has not been updated since 1981 and may be in need of an
update given changes to the authority and government reorganizations since that date.127 One of
125 Offsets are defined in Section 801(k) of E.O. 13603. Offsets can be direct, where offsetting sales of goods and
services are related to the military export sale being contracted, or indirect, where they are not. These reports are
prepared by the Department of Commerce Bureau of Industry and Security (BIS) and are posted on at BIS’s website at
http://www.bis.doc.gov/index.php/other-areas/strategic-industries-and-economic-security-sies/offsets-in-defense-trade.
126 For example, such a notification requirement is placed on Title III projects based on total project cost. See the
section “Purchase, Purchase Commitments, and Installation of Equipment” of this report for more.
127 50 U.S.C. §4558(e); Section 708(e) of the DPA. This rule is established in 44 C.F.R. Part 332. The voluntary
agreement authority was revised most recently in P.L. 111-67. The national defense context and potential need for
(continued...)
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the agencies responsible for issuing a rulemaking on the use of Title I authorities has yet to do so.
Congress may also consider potentially expanding regulatory requirements for other authorities
included in the DPA. For example, Congress may consider whether the President should
promulgate rules establishing standards and procedures for the use of all or certain Title III
authorities. In addition to formalizing the executive branch’s policies and procedures for using
DPA authorities, these regulations could also serve an important function by offering an
opportunity for private citizens and industry to comment on and understand the impact of DPA
authorities on their personal interests.
Broadening Committee Oversight Jurisdiction
Since its enactment, the House Committee on Financial Services, the Senate Committee on
Banking, Housing, and Urban Affairs, and their predecessors have exercised legislative oversight
of the Defense Production Act. The statutory authorities granted in the various titles have been
vested in the President, who has delegated some of these authorities to various agency officials
through E.O. 13603. As an example of the scope of delegations, the membership of the Defense
Production Act Committee (DPAC), created in 2009 and amended in 2014, includes the
Secretaries of Agriculture, Commerce, Defense, Energy, Labor, Health and Human Services,
Homeland Security, the Interior, Transportation, the Treasury, and State; the Attorney General; the
Administrators of the National Aeronautics and Space Administration and of General Services,
the Chair of the Council of Economic Advisers; and the Directors of the Central Intelligence
Agency and National Intelligence.
To complement existing oversight, given the number of agencies that currently use or could
potentially use the array of DPA authorities to support national defense missions, Congress may
consider reestablishing a select committee with a purpose similar to the former Joint Committee
on Defense Production.128 As an alternative to the creation of a new committee, Congress may
consider formally broadening DPA oversight responsibilities to include all relevant standing
committees when developing its committee oversight plan.
Should DPA oversight be broadened, Congress might consider ways to enhance inter-committee
communication and coordination of its related activities. This coordination could include periodic
meetings to prepare for oversight hearings or ensuring that DPA-related communications from
agencies are shared appropriately. Finally, because the DPA was enacted at a time when the
organization and rules of both chambers were markedly different to current practice, Congress
may consider the joint referral of proposed DPA-related legislation to the appropriate oversight
committees.
Amending the Defense Production Act of 1950
While the act in its current form may remain in force until September 30, 2025, the legislature
could amend the DPA at any time to extend, expand, restrict, or otherwise clarify the powers it
grants to the President. For example, Congress could eliminate certain authorities altogether.
Likewise, Congress could expand the DPA to include new authorities to address novel threats to
the national defense. For example, Congress may consider creating new authorities to address
voluntary agreement authorities has evolved since 1981, which could also potentially prompt the need to revise the
regulation.
128 P.L. 102-558, 106 Stat. 4219. This committee was intended to review the programs established by the DPA and
advise the standing committees in their legislation on the subject.
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specific concerns relating to production and security of emerging technologies necessary for the
national defense.
Declaration of Policy
The “Declaration of Policy” in the DPA describes the general intentions of Congress in granting
the authorities conferred on the President. Congress may amend this section of the statute in order
to expand, restrict, or clarify the overall purpose of the authorities. For instance, given the wide
variety of circumstances in which DPA authorities have been employed, Congress could include
an expanded discussion of the specific conditions in which it would find DPA authorities
appropriate for use by the President. Though this section serves as a guide for the overall use of
DPA authorities, changes to the Declaration of Policy may not fully endow or deny the
President’s authorities covered in the titles of the DPA without also amending the DPA’s other
provisions.
Definitions
Congress may amend the definitions of key terms found in the DPA to shape the scope and use of
the authorities, especially the definitions of national defense and domestic sources.
As an example, Congress could amend the definition of national defense to remove space from
the definition of national defense, thus weakening the President’s ability to support space-related
projects through the use of DPA authorities.129 On the other hand, for example, Congress could
amend the definition of national defense to specifically include counter-narcotics, cybersecurity,
or organized crime. Doing so would more explicitly enable the use of DPA authorities to address
these homeland security and national defense concerns.
If Congress wanted to expand the number of entities eligible for DPA Title III activities, it could
consider amending the definition of domestic sources to include, for instance, business concerns
located in allied or friendly nations other than Canada.130 Alternatively, if Congress believed too
many entities were eligible for Title III assistance, it could amend this definition to restrict
eligibility.
Amending the Delegations of Authority in E.O. 13603
Congress may consider limiting the use of certain DPA authorities to specific agencies. To do so,
Congress could amend the President’s delegation of DPA authorities, superseding those made in
E.O. 13603, by amending the statute to assign specific authorities to individual Cabinet
Secretaries rather than the President. Further, Congress could expand the use of the legislative
clause “on a nondelegable basis” to ensure that the authority is not delegated beyond the person
identified in the statute.131 In considering these options, Congress may determine that the use of
some authorities by certain agencies is appropriate and necessary for the national defense, but not
for others.
129 For the definition of national defense, see 50 U.S.C. §4552(14); Section 702(14) of the DPA.
130 As of this writing, a provision that would amend this definition to include businesses based in Australia and the
United Kingdom is included as part of the Senate-passed bill for an FY2024 NDAA (S. 2226; Section 1080).
131 For an example of this clause, see 50 U.S.C. §4558(c)(3); Section 708(c)(3) of the DPA.
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Appropriations to the DPA Fund
Congress could adjust future appropriations to the DPA Fund in order to manage the scope of
Title III projects initiated by the President (see Table 1 for appropriations to the DPA Fund since
FY2013). The use of the DPA Fund, however, is specific to Title III. Therefore, adjusting
appropriations to the DPA Fund is unlikely to have an effect on the President’s ability to exercise
authorities under the other titles of the DPA, unless Congress drafts legislation changing the
nature of the Fund itself or authorizing its use beyond a specific title. Congress may also
reintroduce a separate provision in Section 711 of the DPA authorizing only certain appropriation
amounts over a given time period for Title III or other DPA authorities.132 Likewise, Congress
may direct the use of such funds more specifically, such as has been done in relation to past Title
III projects.133 Congress may also consider including specific restrictions or reporting
requirements related to the DPA in the appropriations made to other accounts that could be used
to pay for Title I activities, such as the Disaster Relief Fund managed by FEMA.134
132 For example, appropriations for Title I could be authorized for only one year, but for Title III for five, and vice
versa.
133 For example, see Section 315, P.L. 112-239, the National Defense Authorization Act for Fiscal Year 2013. This
provision limited the use of funds for a Title III project on biofuels production.
134 The Disaster Relief Fund is the main account to fund a wide variety of federal disaster assistance programs and
activities pursuant to the Robert T. Stafford Relief and Emergency Assistance Act (P.L. 93-288). As such, it has been
used to pay for priority-rated contracts to support disaster relief efforts.
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Appendix. Supplementary Tables
Table A-1. Additional Resources by Defense Production Act Subject
DPA Subject
Additional Resources
General Information on
DPA Authorities
FEMA website on the DPA at https://www.fema.gov/defense-production-actprogram.
DOD website on Title III of the DPA at https://www.businessdefense.gov/
Programs/DPA-Title-III/
Annual reports on the industrial capabilities from the DOD, to include how DPA
has been used to support those capabilities, at https://www.businessdefense.gov/
resources/
Title I: Priorities and
Allocations
Department of Commerce “Defense Priorities and Allocations System” website
at http://www.bis.doc.gov/dpas/default.htm. This website includes online training
courses and various additional resources on the authorities.
DOD website on the Defense Priorities and Allocations System at
http://www.dcma.mil/DPAS/
Title III Projects
DOD website at https://www.businessdefense.gov/Programs/DPA-Title-III/
Committee on Foreign
Investment in the United
States (CFIUS)
Department of the Treasury CFIUS website at https://home.treasury.gov/policyissues/international/the-committee-on-foreign-investment-in-the-united-statescfius
CRS Report RL33388, The Committee on Foreign Investment in the United States
(CFIUS), by James K. Jackson (for further inquiries, congressional offices may
contact Cathleen D. Cimino-Isaacs).
Impact of Offsets in
Defense Trade
Department of Commerce website on offsets at http://www.bis.doc.gov/
index.php/other-areas/strategic-industries-and-economic-security-sies/offsets-indefense-trade
Source: CRS.
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Table A-2. Key Provisions of the Defense Production Act,
Related Portions of Executive Order 13603, and Associated Regulations
Authority and DPA
Statute
Related
Portions of
Executive
Order13603a
Regulations or
Guiding
Documents
Summary of How the Authority
Changed in P.L. 113-172
Example of Use of Authority
Declaration of Policy;
Section 2 of the DPA, 50
U.S.C. §4502
Sections 101,
102, and 103
Not applicable
No changes were made.
Not applicable
Priorities and
Allocations; Title I of the
DPA, 50 U.S.C. §4511
Part II
7 C.F.R. Part 789, 10
C.F.R. Part 217, 15
C.F.R. Part 700, 45
C.F.R. Part 101, and
49 C.F.R. Part 33. An
additional regulation
from DOD is
required.b
Revised the existing rulemaking requirement
for all federal departments and agencies
delegated Title I authorities. Requirement
now is for these agencies to issue and
annually review their final rules whenever
appropriate.
Priority contracts have been issued in the
past to support the Integrated Ballistic
Missile Defense System.c
Loan Guarantees; Section
301 and 302 of Title III of
the DPA, 50 U.S.C. §§4531
and 4532
Part III
Not applicable
No changes were made.
According to the DPAC, none in recent
history.
Purchases, Purchase
Commitments, and
Installation of
Equipment; Section 303 of
Title III of the DPA, 50
U.S.C. §4553
Part III
Not applicable
Revised the determination requirement for
Section 303 of Title III in several ways,
including: requiring the President to submit
determinations on Title III projects without
delegating the responsibility; reinstituted a
$50 million cost cap on the size of Title III
projects without an act of Congress; and
reinstituted the requirement that the
President find that actions are the most cost
effective, expedient, and cost-effective
method of meeting the need.
“Radiation-Hardened Cryogenic Readout
Integrated Circuits” Project which involved
Title III resources to “establish a viable,
domestic foundry for commercial
production” of microelectronics that are a
“critical technology employed in the
manufacture of focal plane arrays (FPAs),
which are utilized in high altitudes, spacebased imaging, and missile systems.”d
Definitions; Section 702 of
the DPA, 50 U.S.C. §4552
Section 802
Not applicable
No changes were made.
Not applicable
CRS-25
Related
Portions of
Executive
Order13603a
Regulations or
Guiding
Documents
Summary of How the Authority
Changed in P.L. 113-172
Voluntary Agreements;
Section 708 of the DPA, 50
U.S.C. §4558
Part IV
44 C.F.R. Part 332
No changes were made.
Voluntary Intermodal Sealift Agreement
(VISA) managed by the Maritime
Administration (MARAD) in the U.S.
Department of Transportation.e
National Defense
Executive Reserve
(NDER); Section 710 of
the DPA, 50 U.S.C. §4560
Part V
Interim Guidance for
the NDER Programf
No changes were made.
Not applicable
Committee on Foreign
Investment in the
United States (CFIUS);
Section 721 of the DPA, 50
U.S.C. §4565
Executive Order
11858: Foreign
Investment in the
United States, as
amended.
31 C.F.R. Part 800, as
amended
No changes were made in P.L. 113-72;
however, significant changes were made in
the Foreign Investment Risk Review
Modernization Act (FIRRMA) of 2018 (Title
XVII, P.L. 115-232)
See CRS Report RL33388, The Committee on
Foreign Investment in the United States (CFIUS),
by James K. Jackson (for further inquiries,
congressional offices may contact Cathleen
D. Cimino-Isaacs).
Defense Production Act
Committee (DPAC);
Section 722 of the DPA, 50
U.S.C. §4567
Part VII
None that are
currently applicable.g
Revised the focus of the DPAC to be
exclusively on coordinating and planning for
the use of Title I priorities and allocations
authority. Revised DPAC Chairperson
designation and the annual reporting
requirement to reflect new Title I focus of
the DPAC.
Not applicable.g
Authority and DPA
Statute
Example of Use of Authority
Source: CRS analysis of E.O. 13603, 50 U.S.C. §§4501 et seq., and information from available resources.
Notes:
a. Unless otherwise noted, provisions cited are found in E.O. 13603.
b. DOD, via the U.S. Army Corps of Engineers, also has been directed by law to issue a rulemaking for Title I, by virtue of being delegated priorities and allocations
authority related to water resource in E.O. 13603. DOD has indicated that a preliminary draft of this rulemaking has been completed, as of November 8, 2018.
c. For more examples, see Department of Homeland Security, The Defense Production Act Committee: Report to Congress, Calendar Year 2017, p. 10; or see a list of
Department of Defense programs that were approved for DX-rating as of March 2016, see https://www.bis.doc.gov/index.php/forms-documents/pdfs/1257-dx-ratedprogram-list/file.
d. For specific information on this project and other examples of Title III projects, see Department of Defense, Annual Industrial Capabilities, Fiscal Year 2015 Report to
Congress, September 2016, p. C-15, at https://www.businessdefense.gov/Portals/51/Documents/Resources/2015%20AIC%20RTC%2010-03-16%20%20Public%20Unclassified.pdf?ver=2017-04-18-072624-770.
CRS-26
e.
f.
g.
For more, see approval of the VISA program in the Federal Register at Maritime Administration, “Voluntary Intermodal Sealift Agreement,” 79 Federal Register 64462,
October 29, 2014. See also MARAD’s website at https://www.marad.dot.gov/ships-and-shipping/strategic-sealift/voluntary-intermodal-sealift-agreement-visa/.
Federal Emergency Management Agency, The National Defense Executive Reserve: Policies and Procedures Manual, Washington, DC, June 20, 2007, at
http://www.fema.gov/library/viewRecord.do?id=3606.
The Defense Production Act Committee’s purpose and focus was revised by P.L. 113-172. Prior to this change, the DPAC statute was support by a Presidential
Memorandum Designating the Chairperson of the Committee; an official Charter of the DPAC; and a Memorandum of Understanding between DHS and DOD on
their shared responsibilities to support the DPAC. These documents are now outdated by P.L. 113-172.
Table A-3. Delegation of Priorities and Allocations Authorities to Cabinet Secretaries
Cabinet Secretary
Delegated Area of Authority
in E.O. 13603a
Definitions in E.O. 13603b
Secretary of
Agriculture
Food resources, food resource
facilities, livestock resources,
veterinary resources, plant
health resources, and the
domestic distribution of farm
equipment and commercial
fertilizer
‘‘Farm equipment’’ means equipment, machinery, and repair parts manufactured for use on farms in
connection with the production or preparation for market use of food resources.
‘‘Fertilizer’’ means any product or combination of products that contain one or more of the elements
nitrogen, phosphorus, and potassium for use as a plant nutrient.
‘‘Food resources’’ means all commodities and products (simple, mixed, or compound), or complements to
such commodities or products, that are capable of being ingested by either human beings or animals,
irrespective of other uses to which such commodities or products may be put, at all stages of processing
from the raw commodity to the products thereof in vendible form for human or animal consumption. ‘‘Food
resources’’ also means potable water packaged in commercially marketable containers, all starches, sugars,
vegetable and animal or marine fats and oils, seed, cotton, hemp, and flax fiber, but does not mean any such
material after it loses its identity as an agricultural commodity or agricultural product.
‘‘Food resource facilities’’ means plants, machinery, vehicles (including on farm), and other facilities required
for the production, processing, distribution, and storage (including cold storage) of food resources, and for
the domestic distribution of farm equipment and fertilizer (excluding transportation thereof).
Secretary of Energy
All forms of energy
‘‘Energy’’ means all forms of energy including petroleum, gas (both natural and manufactured), electricity,
solid fuels (including all forms of coal, coke, coal chemicals, coal liquefaction, and coal gasification), solar,
wind, other types of renewable energy, atomic energy, and the production, conservation, use, control, and
distribution (including pipelines) of all of these forms of energy.
Secretary of Health
and Human Services
Health resources
‘‘Health resources’’ means drugs, biological products, medical devices, materials, facilities, health supplies,
services and equipment required to diagnose, mitigate or prevent the impairment of, improve, treat, cure, or
restore the physical or mental health conditions of the population.
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Cabinet Secretary
Delegated Area of Authority
in E.O. 13603a
Definitions in E.O. 13603b
Secretary of
Transportation
All forms of civil transportation
“Civil transportation” includes movement of persons and property by all modes of transportation in
interstate, intrastate, or foreign commerce within the United States, its territories and possessions, and the
District of Columbia, and related public storage and warehousing, ports, services, equipment and facilities,
such as transportation carrier shop and repair facilities. “Civil transportation” also shall include direction,
control, and coordination of civil transportation capacity regardless of ownership. “Civil transportation” shall
not include transportation owned or controlled by the Department of Defense, use of petroleum and gas
pipelines, and coal slurry pipelines used only to supply energy production facilities directly.
Secretary of Defense
Water resources
‘‘Water resources’’ means all usable water, from all sources, within the jurisdiction of the United States, that
can be managed, controlled, and allocated to meet emergency requirements, except ‘‘water resources’’ does
not include usable water that qualifies as ‘‘food resources.’’
Secretary of
Commerce
All other materials, services, and
facilities, including construction
materials
Materials, services, and facilities are all defined in statute; see 50 U.S.C. §4552(13), (16), and (8), respectively.
Source: CRS analysis of E.O. 13603 and 50 U.S.C. §§4501 et seq.
Notes:
a. See Section 201(a)(1) to (6) of E.O. 13603.
b. These definitions are found in Section 802 of E.O. 13603.
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The Defense Production Act of 1950
Table A-4. Chronology of Laws Reauthorizing the Defense Production Act of 1950
Public Law and Statutes at Large Citation, and Date of Enactment
General Expiration Datea
P.L. 81-774, 64 Stat. 798, September 8, 1950
June 30, 1951
P.L. 82-69, 65 Stat. 110, June 30, 1951
July 31, 1951
P.L. 82-96, 65 Stat. 131, July 31 1951
June 30, 1952
P.L. 82-429, 66 Stat. 296, June 30, 1952
June 30, 1953
P.L. 83-95, 67 Stat. 129, June 30, 1953b
June 30, 1955b
P.L. 84-119, 69 Stat. 225, June 30, 1955
July 31, 1955
P.L. 84-295, 69 Stat. 580, August 9, 1955
June 30, 1956
P.L. 84-632, 70 Stat. 408, June 29, 1956
June 30, 1958
P.L. 85-471, 72 Stat. 241, June 28, 1958
June 30, 1960
P.L. 86-560, 74 Stat. 282, June 30, 1960
June 30, 1962
P.L. 87-505, 76 Stat. 112, June 28, 1962
June 30, 1964
P.L. 88-343, 78 Stat. 235, June 30, 1964
June 30, 1966
P.L. 89-482, 80 Stat. 235, June 30, 1966
June 30, 1968
P.L. 90-370, 82 Stat. 279, July1, 1968
June 30, 1970
P.L. 91-300, 84 Stat. 367, June 30, 1970
July 30, 1970
P.L. 91-371, 84 Stat. 694, August 1, 1970
August 15, 1970
P.L. 91-379, 84 Stat. 796, August 15, 1970
June 30, 1972
P.L. 92-325, 86 Stat. 390, June 30, 1972
June 30, 1974
P.L. 93-323, 88 Stat. 280, June 30, 1974
July 30, 1974
P.L. 93-367, 88 Stat. 419, August 7, 1974
September 30, 1974
P.L. 93-426, 88 Stat. 1166, September 30, 1974
June 30, 1975
P.L. 94-42, 89 Stat. 232, June 28, 1975
September 30, 1975
P.L. 94-100, 89 Stat. 483, October 1, 1975
November 30, 1975
P.L. 94-152, 89 Stat. 810, December 16, 1975
September 30, 1977
P.L. 95-37, 91 Stat. 178, June 1, 1977
September 30, 1979
P.L. 96-77, 93 Stat. 588, September 29, 1979
January 28, 1980
P.L. 96-188, 94 Stat. 3, January 28, 1980
March 28, 1980
P.L. 96-225, 94 Stat. 310, April 3, 1980
May 27, 1980
P.L. 96-250, 94 Stat. 371, May 26, 1980
August 27, 1980
P.L. 96-294, 94 Stat. 611, June 30, 1980
September 30, 1981
P.L. 97-47, 95 Stat. 954, September 30, 1981
September 30, 1982
P.L. 97-336, 96 Stat. 1630, October 15, 1982
March 31, 1983
P.L. 98-12, 97 Stat. 53, March 29, 1983
September 30, 1983
P.L. 98-181, 97 Stat. 1267, November 30, 1983
March 30, 1984
P.L. 98-265, 98 Stat. 149, April 17, 1984
September 30, 1986
P.L. 99-441, 100 Stat. 1117, October 3, 1986
September 30, 1989
Congressional Research Service
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The Defense Production Act of 1950
Public Law and Statutes at Large Citation, and Date of Enactment
General Expiration Datea
P.L. 101-137, 103 Stat. 824, November 3, 1989
August 10, 1990
P.L. 101-351, 104 Stat. 404, August 9, 1990
September 30, 1990
P.L. 101-407, 104 Stat. 882, October 4, 1990
October 5, 1990
P.L. 101-411, 104 Stat. 893, October 6, 1990
October 20, 1990
P.L. 102-99, 105 Stat. 487, August 17, 1991
September 30, 1991c
P.L. 102-193, 105 Stat. 1593, December 6, 1991
March 1, 1992
P.L. 102-558, 106 Stat. 4198, October 28, 1992
September 30, 1995
P.L. 104-64, 109 Stat. 689, December 18, 1995
September 30, 1998
P.L. 105-261, 112 Stat. 2137, October 17, 1998
September 30, 1999
P.L. 106-65, 113 Stat. 769, October 5, 1999
September 30, 2000
P.L. 106-363, 114 Stat. 1407, October 27, 2000
September 30, 2001
P.L. 107-47, 115 Stat. 260, October 5, 2001
September 30, 2003
P.L. 108-195, 117 Stat. 2892, December 17, 2003
September 30, 2008
P.L. 110-367, 122 Stat. 4026, October 8, 2008
September 30, 2009
P.L. 111-67, 123 Stat. 2006, September 30, 2009
September 30, 2014
P.L. 113-172, September 26, 2014
September 30, 2019
P.L. 115-232, August 13, 2018
September 30, 2025
Source: CRS.
Notes: This table does not include all laws that amended the DPA, only those that altered the termination date
of the act, currently codified at 50 U.S.C. §4564, Section 717 of the DPA.
a. Not all provisions of the DPA may have expired on each given date, as the law has frequently offered an
evolving set of exceptions to the termination of DPA authorities. For example, currently the majority of
DPA authorities will terminate on September 30, 2025, with the exception of four sections.
b. P.L. 83-95 permitted the termination of Titles 2 and 6 as of June 30, 1953, and Titles IV and V to terminate
as of April 30, 1953.
c. The termination of authorization from October 20, 1990, to August 17, 1991, is the longest period on
record since inception. However, in Section 7 of P.L. 102-99, Congress set the effective date of the passage
to October 20, 1990, thus technically authorizing the DPA through this time period.
Author Information
Alexandra G. Neenan
Analyst in U.S. Defense Infrastructure Policy
Luke A. Nicastro
Analyst in U.S. Defense Infrastructure Policy
Acknowledgments
This CRS Report was previously maintained and updated by former CRS Analyst in Defense Acquisition
Policy Heidi Peters.
Congressional Research Service
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The Defense Production Act of 1950
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Congressional Research Service
R43767 · VERSION 11 · UPDATED
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