[USC02] 50 USC 4511: Priority in contracts and orders
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50 USC 4511: Priority in contracts and orders Text contains those laws in effect on November 28, 2020
From Title 50-WAR AND NATIONAL DEFENSECHAPTER 55-DEFENSE PRODUCTIONSUBCHAPTER I-PRIORITIES AND ALLOCATIONS

§4511. Priority in contracts and orders

(a) Allocation of materials, services, and facilities

The President is hereby 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.

(b) Critical and strategic materials

The powers granted in this section shall not be used to control the general distribution of any material in the civilian market unless the President finds (1) that such material is a scarce and critical material essential to the national defense, and (2) that the requirements of the national defense for such material cannot otherwise be met without creating a significant dislocation of the normal distribution of such material in the civilian market to such a degree as to create appreciable hardship.

(c) Domestic energy; materials, equipment, and services

(1) Notwithstanding any other provision of this chapter, the President may, by rule or order, require the allocation of, or the priority performance under contracts or orders (other than contracts of employment) relating to, materials, equipment, and services in order to maximize domestic energy supplies if he makes the findings required by paragraph (3) of this subsection.

(2) The authority granted by this subsection 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.


(3) During any period when the authority conferred by this subsection is being exercised, the President shall take such action as may be appropriate to assure that such authority is being exercised in a manner which assures the coordinated administration of such authority with any priorities or allocations established under subsection (a) of this section and in effect during the same period.

(d) Rules; consultation among agency heads

The head of each Federal agency to which the President delegates authority under this section shall-

(1) issue, and annually review and update whenever appropriate, final rules, in accordance with section 553 of title 5, 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; and

(2) as appropriate and to the extent practicable, consult with the heads of other Federal agencies to develop a consistent and unified Federal priorities and allocations system.

(Sept. 8, 1950, ch. 932, title I, §101, 64 Stat. 799 ; July 31, 1951, ch. 275, title I, §101(a), 65 Stat. 131 ; June 30, 1952, ch. 530, title I, §§101, 102, 66 Stat. 296 , 297; June 30, 1953, ch. 171, §3, 67 Stat. 129 ; Pub. L. 94–163, title I, §104(a), Dec. 22, 1975, 89 Stat. 878 ; Pub. L. 102–99, §6, Aug. 17, 1991, 105 Stat. 490 ; Pub. L. 111–67, §4, Sept. 30, 2009, 123 Stat. 2009 ; Pub. L. 113–172, §3, Sept. 26, 2014, 128 Stat. 1897 .)

Termination of Section

For termination of section, see section 4564(a) of this title.

References in Text

This chapter, referred to in subsec. (c)(1), was in the original "this Act", meaning act Sept. 8, 1950, ch. 932, 64 Stat. 798 , known as the Defense Production Act of 1950, which is classified principally to this chapter. For complete classification of this Act to the Code, see section 4501 of this title and Tables.

Codification

Section was formerly classified to section 2071 of the former Appendix to this title prior to editorial reclassification and renumbering as this section.

Amendments

2014-Subsec. (d)(1). Pub. L. 113–172 substituted "issue, and annually review and update whenever appropriate, final rules" for "not later than 270 days after the date of enactment of the Defense Production Act Reauthorization of 2009, issue final rules".

2009-Subsec. (d). Pub. L. 111–67 added subsec. (d).

1991-Subsec. (a)(2). Pub. L. 102–99, §6(1), substituted "materials, services, and facilities" for "materials and facilities".

Subsec. (c)(1). Pub. L. 102–99, §6(2), substituted "materials, equipment, and services" for "supplies of materials and equipment".

Subsec. (c)(2) to (4). Pub. L. 102–99, §6(3), (4), added par. (2), redesignated par. (4) as (3), and struck out former pars. (2) and (3) which read as follows:

"(2) The President shall report to the Congress within sixty days after December 22, 1975, on the manner in which the authority contained in paragraph (1) will be administered. This report shall include the manner in which allocations will be made, the procedure for requests and appeals, the criteria for determining priorities as between competing requests, and the office or agency which will administer such authorities.

"(3) The authority granted in this subsection may not be used to require priority performance of contracts or orders, or to control the distribution of any supplies of materials and equipment in the marketplace, unless the President finds that-

"(A) such supplies are scarce, critical, and essential to maintain or further (i) exploration, production, refining, transportation, or (ii) the conservation of energy supplies, or (iii) for the construction and maintenance of energy facilities; and

"(B) maintenance or furtherance 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."

1975-Subsec. (c). Pub. L. 94–163 added subsec. (c).

1953-Subsec. (a). Act June 30, 1953, struck out provisions which related to slaughtering of livestock and allocation of meat and meat products.

Subsec. (b). Act June 30, 1953, retained priorities and allocation authority for defense production but generally to discontinue such authority with respect to the civilian market except in the special cases where, because of shortages and demands of the defense effort, there otherwise would be a significant dislocation in the civilian market resulting in appreciable hardship.

1952-Act June 30, 1952, redesignated existing provisions as subsec. (a), inserted provisions relating to meat and meat products, and added subsec. (b).

1951-Act July 31, 1951, inserted provision relating to slaughtering of livestock.

Effective Date of 1991 Amendment

Pub. L. 102–99, §7, Aug. 17, 1991, 105 Stat. 490 , provided that: "This Act [see Tables for classification] shall take effect on October 20, 1990."

Delegation of Functions

Functions of President under this chapter relating to production, conservation, use, control, distribution, and allocation of energy, delegated to Secretary of Energy, see section 4 of Ex. Ord. No. 11790, June 25, 1974, 39 F.R. 23185, set out as a note under section 761 of Title 15, Commerce and Trade.

For delegation of certain authority of President under this section, see sections 201 to 203 of Ex. Ord. No. 13603, Mar. 16, 2012, 77 F.R. 16652, 16653, set out as a note under section 4553 of this title.

Report on Industry Preparedness

Pub. L. 110–53, title X, §1002(b), Aug. 3, 2007, 121 Stat. 375 , provided that: "Not later than 6 months after the last day of fiscal year 2007 and each subsequent fiscal year, the Secretary of Homeland Security, in cooperation with the Secretary of Commerce, the Secretary of Transportation, the Secretary of Defense, and the Secretary of Energy, shall submit to the Committee on Banking, Housing, and Urban Affairs and the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Financial Services and the Committee on Homeland Security of the House of Representatives a report that details the actions taken by the Federal Government to ensure, in accordance with subsections (a) and (c) of section 101 of the Defense Production Act of 1950 (50 U.S.C. App. 2071) [now 50 U.S.C. 4511], the preparedness of industry to reduce interruption of critical infrastructure and key resource operations during an act of terrorism, natural catastrophe, or other similar national emergency."

Presidential Authority To Issue Orders Relating to Domestic Energy Supplies

Pub. L. 94–163, title I, §104(b), Dec. 22, 1975, 89 Stat. 879 , as amended by Pub. L. 99–58, title I, §101(b), July 2, 1985, 99 Stat. 102 ; Pub. L. 101–46, §1(2), June 30, 1989, 103 Stat. 132 ; Pub. L. 101–262, §2(a), Mar. 31, 1990, 104 Stat. 124 ; Pub. L. 101–360, §2(a), Aug. 10, 1990, 104 Stat. 421 ; Pub. L. 101–383, §2(1), Sept. 15, 1990, 104 Stat. 727 ; Pub. L. 105–388, §6, Nov. 13, 1998, 112 Stat. 3479 ; Pub. L. 106–469, title I, §103(2), Nov. 9, 2000, 114 Stat. 2029 , provided that: "The expiration of the Defense Production Act of 1950 [50 U.S.C. 4501 et seq.] or any amendment of such Act after the date of enactment of this Act [Dec. 22, 1975] shall not affect the authority of the President under section 101(c) of such Act [50 U.S.C. 4511(c)], as amended by subsection (a) of this section and in effect on the date of enactment of this Act, unless Congress by law expressly provides to the contrary."

Ex. Ord. No. 13909. Prioritizing and Allocating Health and Medical Resources to Respond to the Spread of COVID–19

Ex. Ord. No. 13909, Mar. 18, 2020, 85 F.R. 16227, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Defense Production Act of 1950, as amended (50 U.S.C. 4501 et seq.) (the "Act"), and section 301 of title 3, United States Code, it is hereby ordered as follows:

Section 1. Policy and Findings. On March 13, 2020, I declared a national emergency recognizing the threat that the novel (new) coronavirus known as SARS–CoV–2 poses to our national security. In recognizing the public health risk, I noted that on March 11, 2020, the World Health Organization announced that the outbreak of COVID–19 (the disease caused by SARS–CoV–2) can be characterized as a pandemic. I also noted that while the Federal Government, along with State and local governments, have taken preventive and proactive measures to slow the spread of the virus and to treat those affected, the spread of COVID–19 within our Nation's communities threatens to strain our Nation's healthcare system. To ensure that our healthcare system is able to surge capacity and capability to respond to the spread of COVID–19, it is critical that all health and medical resources needed to respond to the spread of COVID–19 are properly distributed to the Nation's healthcare system and others that need them most at this time.

Accordingly, I find that health and medical resources needed to respond to the spread of COVID–19, including personal protective equipment and ventilators, meet the criteria specified in section 101(b) of the Act (50 U.S.C. 4511(b)). Under the delegation of authority provided in this order, the Secretary of Health and Human Services may identify additional specific health and medical resources that meet the criteria of section 101(b).

Sec. 2. Priorities and Allocation of Medical Resources.

(a) Notwithstanding Executive Order 13603 of March 16, 2012 (National Defense Resource Preparedness) [50 U.S.C. 4553 note], the authority of the President conferred by section 101 of the Act to require performance of contracts or orders (other than contracts of employment) to promote the national defense over performance of any other contracts or orders, to allocate materials, services, and facilities as deemed necessary or appropriate to promote the national defense, and to implement the Act in subchapter III [50 U.S.C. 4551 et seq.] of chapter 55 of title 50, United States Code, is delegated 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.

(b) The Secretary of Health and Human Services may use the authority under section 101 of the Act to determine, in consultation with the Secretary of Commerce and the heads of other executive departments and agencies as appropriate, the proper nationwide priorities and allocation of all health and medical resources, including controlling the distribution of such materials (including applicable services) in the civilian market, for responding to the spread of COVID–19 within the United States.

(c) The Secretary of Health and Human Services shall issue such orders and adopt and revise appropriate rules and regulations as may be necessary to implement this order.

Sec. 3. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Donald J. Trump.      

Ex Ord. No. 13911. Delegating Additional Authority Under the Defense Production Act With Respect to Health and Medical Resources To Respond to the Spread of COVID–19

Ex. Ord. No. 13911, Mar. 27, 2020, 85 F.R. 18403, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Defense Production Act of 1950, as amended (50 U.S.C. 4501 et seq.) (the "Act"), the National Emergencies Act (50 U.S.C. 1601 et seq.), and section 301 of title 3, United States Code, it is hereby ordered as follows:

Section 1. Policy. In Proclamation 9994 of March 13, 2020 (Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID–19) Outbreak) [50 U.S.C. 1621 note], I declared a national emergency recognizing the threat that the novel (new) coronavirus known as SARS–CoV–2 poses to our Nation's healthcare systems. In recognizing the public health risk, I noted that on March 11, 2020, the World Health Organization announced that the outbreak of COVID–19 (the disease caused by SARS–CoV–2) can be characterized as a pandemic. I also noted that while the Federal Government, along with State and local governments, have taken preventive and proactive measures to slow the spread of the virus and to treat those affected, the spread of COVID–19 within our Nation's communities threatens to strain our Nation's healthcare systems.

To deal with this threat, on March 18, 2020, I issued Executive Order 13909 (Prioritizing and Allocating Health and Medical Resources to Respond to the Spread of COVID–19) [set out above], in which I delegated to the Secretary of Health and Human Services the prioritization and allocation authority under section 101 of the Act with respect to health and medical resources needed to respond to the spread of COVID–19. And on March 23, 2020, I issued Executive Order 13910 (Preventing Hoarding of Health and Medical Resources to Respond to the Spread of COVID–19) [50 U.S.C. 4512 note], in which I delegated to the Secretary of Health and Human Services the authority under section 102 of the Act to combat hoarding and price gouging with respect to such resources.

To ensure that our healthcare systems are able to surge capacity and capability to respond to the spread of COVID–19, it is the policy of the United States to expand domestic production of health and medical resources needed to respond to the spread of COVID–19, including personal protective equipment and ventilators. Accordingly, I am delegating authority under title III of the Act [50 U.S.C. 4531 et seq.] to guarantee loans by private institutions, make loans, make provision for purchases and commitments to purchase, and take additional actions to create, maintain, protect, expand, and restore domestic industrial base capabilities to produce such resources. To enable greater cooperation among private businesses in expanding production of and distributing such resources, I am also delegating my authority under section 708(c) and (d) of the Act (50 U.S.C. 4558(c), (d)) to provide for the making of voluntary agreements and plans of action by the private sector.

Sec. 2. Delegation of Authority Under Title III of the Act. (a) Notwithstanding Executive Order 13603 of March 16, 2012 (National Defense Resources Preparedness) [50 U.S.C. 4553 note], the Secretary of Health and Human Services and the Secretary of Homeland Security are each delegated, with respect to responding to the spread of COVID–19 within the United States, the authority of the President conferred by sections 301, 302, and 303 of the Act (50 U.S.C. 4531, 4532, and 4533), and the authority to implement the Act in subchapter III [50 U.S.C. 4551 et seq.] of chapter 55 of title 50, United States Code (50 U.S.C. 4554, 4555, 4556, and 4560).

(b) The Secretary of Health and Human Services and the Secretary of Homeland Security may each use the authority under sections 301, 302, and 303 of the Act, in consultation with the Secretary of Defense and the heads of other executive departments and agencies as he deems appropriate, to respond to the spread of COVID–19.

(c) To provide additional authority to respond to the national emergency I declared in Proclamation 9994, the requirements of section 301(a)(2), section 301(d)(1)(A), and section 303(a)(1) through (a)(6) of the Act are waived during the period of that national emergency.

(d) To provide additional authority to respond to the national emergency I declared in Proclamation 9994, the Secretary of Health and Human Services and the Secretary of Homeland Security are each authorized to submit for my approval under section 302(d)(2)(B) of the Act a proposed determination that any specific loan is necessary to avert an industrial resource or critical technology shortfall that would severely impair national defense capability.

(e) Before exercising the authority delegated under this section with respect to health or medical resources, the Secretary of Homeland Security shall consult with the Secretary of Health and Human Services.

Sec. 3. Delegation of Authority Under Title VII of the Act. (a) Notwithstanding Executive Order 13603, the Secretary of Health and Human Services and the Secretary of Homeland Security are each delegated, with respect to responding to the spread of COVID–19 within the United States, the authority of the President conferred by section 708(c)(1) and (d) of the Act [50 U.S.C. 4558(c)(1) and (d)]. The Secretary of Health and Human Services shall provide to the Secretary of Homeland Security notice of any use of such delegated authority.

(b) The delegation made in this section is made upon the condition that the Secretary of Health and Human Services or the Secretary of Homeland Security consult with the Attorney General and with the Federal Trade Commission, and obtain the prior approval of the Attorney General, after consultation by the Attorney General with the Federal Trade Commission, as required by section 708(c)(2) of the Act, except when such consultation is waived under subsection (c) of section 3 of this order and section 708(c)(3) of the Act.

(c) The Secretary of Health and Human Services and the Secretary of Homeland Security are each authorized to submit for my approval under section 708(c)(3) of the Act any proposed determination that any specific voluntary agreement or plan of action is necessary to meet national defense requirements resulting from an event that degrades or destroys critical infrastructure.

(d) Before exercising the authority delegated under this section with respect to health or medical resources, the Secretary of Homeland Security shall consult with the Secretary of Health and Human Services.

Sec. 4. Additional Delegations. (a) Notwithstanding Executive Order 13603, the Secretary of Health and Human Services and the Secretary of Homeland Security are each delegated, with respect to responding to the spread of COVID–19 within the United States, the authority of the President conferred by section 107 of the Act (50 U.S.C. 4517).

(b) In addition to the delegations of authority in Executive Order 13909 and Executive Order 13910, the authority of the President conferred by sections 101 and 102 of the Act (50 U.S.C. 4511, 4512) is delegated to the Secretary of Homeland Security with respect to health and medical resources needed to respond to the spread of COVID–19 within the United States.

(c) The Secretary of Homeland Security may use the authority under section 101 of the Act to determine, in consultation with the heads of other executive departments and agencies as appropriate, the proper nationwide priorities and allocation of health and medical resources, including by controlling the distribution of such materials (including applicable services) in the civilian market, for responding to the spread of COVID–19 within the United States.

(d) Before exercising the authority under section 102 of the Act, the Secretary of Homeland Security shall consult with the Secretary of Health and Human Services.

(e) The Secretary of Homeland Security shall periodically consider whether the designations made by him under section 102 of the Act pursuant to section 4(b) of this order remain necessary. Upon finding that such designation of material is no longer necessary, the Secretary of Homeland Security shall promptly publish a notice of withdrawal of the designation in the Federal Register, and in such other manner as he deems appropriate.

Sec. 5. Implementing Rules and Regulations. The Secretary of Health and Human Services and the Secretary of Homeland Security shall each adopt and revise appropriate rules and regulations as may be necessary to implement this order.

Sec. 6. Policy Coordination. The Assistant to the President for Trade and Manufacturing Policy shall serve as National Defense Production Act Policy Coordinator.

Sec. 7. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Donald J. Trump.