Executive Order 12919 Of June 3, 1994 National Defense Industrial Resources Preparedness
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 (64 Stat. 798; 50 U.S.C. App. 2061, et seq.) and section 301 of title 3, United States Code, and as Commander in Chief of the Armed Forces of the United States, it is hereby ordered as follows:
PART I---PURPOSE, POLICY AND IMPLEMENTATION
Section 101. Purpose. This order delegates authorities and addresses national defense industrial resource policies and programs under the Defense Produc-tion Act of 1950, as amended ("the Act"), except for the amendments to Title III of the Act in the Energy Security Act of 1980 and telecommunication authorities under Executive Order No. 12472.
Sec. 102. Policy. The United States must have an industrial and technology base capable of meeting national defense requirements, and capable of con-tributing to the technological superiority of its defense equipment in peacetime and in times of national emergency. The domestic industrial and techno-logical base is the foundation for national defense preparedness. The authori-ties provided in the Act shall be used to strengthen this base and to ensure it is capable of responding to all threats to the national security of the United States.
Sec. 103. General Functions. Federal departments and agencies responsible for defense acquisition (or for industrial resources needed to support defense acquisition) shall:
(b) Assess continually the capability of the domestic industrial and techno-logical base to satisfy requirements in peacetime and times of national emergency, specifically evaluating the availability of adequate industrial resource and production sources, including subcontractors and suppliers materials, skilled labor, and professional and technical personnel;
(c) Be prepared, in the event of a potential threat to the security of the United States, to take actions necessary to ensure the availability of adequate industrial resources and production capability, including services and critical technology for national defense requirements;
(d) Improve the efficiency and responsiveness to defense requirements of the domestic industrial base; and
(e) Foster cooperation between the defense and commercial sectors for research and development and for acquisition of materials, components and equipment to enhance industrial base efficiency and responsiveness.
(a) The National Security Council is the principal forum for consideration and resolution of national security resource prepared-ness policy.
(b) The Director, Federal Emergency Management Agency ("Director FEMA") shall:
(2) Provide for the central coordination of the plans and programs incident to authorities and functions delegated under this order, and provide guidance and procedures approved by the Assistant to the President for National Security Affairs to the Federal depart-ments and agencies under this order;
(3) Establish procedures, in consultation with Federal departments and agencies assigned functions under this order, to resolve in a timely and effective manner conflicts and issues that may arise in implementing the authorities and functions delegated under this order; and
(4) Report to the President periodically concerning all program activi-ties conducted pursuant to this order.
(c) The head of every Federal department and agency assigned functions under this order shall ensure that the performance of these functions is consistent with National Security Council policy and guidelines.
Sec. 201. Delegations of Priorities and Allocations. (a) The authority of the President conferred by section 101 of the Act to require acceptance and priority performance of contracts or orders (other than contracts of employment) to promote the national defense over performance of any other contracts or orders, and to allocate materials, services, and facilities as deemed necessary or appropriate to promote the national defense, is delegated to the following agency heads:
(2) The Secretary of Energy with respect to all forms of energy;
(3) The Secretary of Health and Human Services with respect to health resources;
(4) The Secretary of Transportation with respect to all forms of civil transportation;
(5) The Secretary of Defense with respect to water resources; and
(6) The Secretary of Commerce for all other materials, services, and facilities, including construction materials.
(c) The Director, FEMA, shall attempt to resolve issues or disagreements on priorities or allocations between Federal departments or agencies in a time frame consistent with the urgency of the issue at hand and, if not resolved, such issues will be referred to the Assistant to the President for National Security Affairs for final determination.
(d) The head of each Federal department or agency assigned functions under subsection 201(a) of this order, when necessary, shall make the finding required under subsection 101(b) of the Act. This finding shall be submitted for the President's approval through the Assistant to the President for Na-tional Security Affairs. Upon such approval the head of the Federal department or agency that made the finding may use the authority of subsection 101(a) of the Act to control the general distribution of any material (including applicable services) in the civilian market.
(e) The Assistant to the President for National Security Affairs is hereby delegated the authority under subsection 101(c)(3) of the Act, and will be assisted by the Director, FEMA, in ensuring the coordinated administration of the Act.
(b) By the Secretary of Energy with respect to energy production and construction, distribution and use, and directly related activities; and
(c) By the Director, FEMA, with respect to essential civilian needs support-ing national defense, including civil defense and continuity of government and directly related activities.
Sec. 204. Chemical and Biological Warfare. The authority of the President conferred by subsection 104(b) of the Act is delegated to the Secretary of Defense. This authority may not be further delegated by the Secretary.
(b) Direct Loan Guarantees. To expedite or expand production and deliv-eries or services under government contracts for the procurement of industrial resources or critical technology items essential to the national defense, each agency head is authorized to make direct loan guarantees from funds appropriated to their agency for Title III.
(c) Fiscal Agent. Each Federal Reserve Bank is designated and authorized to act, on behalf of any guaranteeing agency, as fiscal agent in the making of guarantee contracts and in otherwise carrying out the purposes of section 301 of the Act.
(d) Regulations. The Board of Governors of the Federal Reserve System is authorized, after consultation with heads of guaranteeing departments and agencies, the Secretary of the Treasury, and the Director, OMB, to prescribe regulations governing procedures, forms, rates of interest, and fees for such guarantee contracts.
(b) To expedite or expand production and deliveries or services under government contracts for the procurement of industrial resources or critical technology items essential to the national defense, each agency head may make direct loans from funds appropriated to their agency for Title III.
(c) After receiving a loan application and determining that financial assist-ance is not otherwise available on reasonable terms, the Secretary of the Treasury or the President and Chairman of the Export-Import Bank of the United States (in cases involving capacity expansion, technological develop-ment, or production in foreign countries) may make loans, subject to provi-sions of section 302 of the Act.
(b) Materials acquired under section 303 of the Act that exceed the needs of the programs under the Act may be transferred to the National Defense Stockpile, if such transfer is determined by the Secretary of Defense as the National Defense Stockpile Manager to be in the public interest.
Sec. 305. Determinations and Findings. When carrying out the authorities in sections 301 through 303 of this order, an agency head is authorized to make the required determinations, judgments, statements, certifications, and findings, in consultation with the Secretary of Defense, Secretary of Energy or Director, FEMA, as appropriate. The agency head shall provide a copy of the determination, judgment, statement, certification, or finding to the Director, OMB, to the Director, FEMA, and, when appropriate, to the Secretary of the Treasury.
Sec. 306. Strategic and Critical Materials.
(b) An agency head is authorized, pursuant to section 303(g) of the Act, to make provision for the development of substitutes for strategic and critical materials, critical components, critical technology items, and other industrial resources to aid the national defense.
(c) An agency head is authorized, pursuant to section 303(a)(1)(B) of the Act, to make provisions to encourage the exploration, development, and mining of critical and strategic materials and other materials.
Sec. 308. Identification of Shortfalls. Except during periods of national emer-gency or after a Presidential determination in accordance with sections 301(e)(1)(D)(ii), 302(c)(4)(B), or 303(a)(7)(B) of the Act, no guarantee, loan, or other action pursuant to sections 301, 302, and 303 of the Act to correct an industrial shortfall shall be taken unless the shortfall has been identified in the Budget of the United States or amendments thereto.
Sec. 309. Defense Production Act Fund Manager. The Secretary of Defense is designated the Defense Production Act Fund Manager, in accordance with section 304(f) of the Act, and shall carry out the duties specified in that section, in consultation with the agency heads having approved Title III projects and appropriated Title III funds.
Sec. 310. Critical Items List.
(b) Each agency head shall take appropriate action to ensure that critical components or critical technology items are available from reliable sources when needed to meet defense requirements during peacetime, graduated mobilization, and national emergency. "Appropriate action" may include restricting contract solicitations to reliable sources, restricting contract solici-tations to domestic sources (pursuant to statutory authority), stockpiling critical components, and developing substitutes for critical components or critical technology items.
Sec. 312. Modernization of Equipment. An agency head, in accordance with section 108(b) of the Act, may utilize the authority of Title III of the Act to guarantee the purchase or lease of advance manufacturing equipment and any related services with respect to any such equipment for purposes of the Act.
PART IV--IMPACT OF OFFSETS
Sec. 401. Offsets.
(b) The Secretary of Commerce shall prepare the annual report required by section 309(a) of the Act in consultation with the Secretaries of Defense, Treasury, Labor, State, the United States Trade Representative, the Arms Control and Disarmament Agency, the Director of Central Intelligence, and the heads of other departments and agencies as required. The heads of Federal departments and agencies shall provide the Secretary of Commerce with such information as may be necessary for the effective performance of this function.
(c) The offset report shall be subject to the normal interagency clearance process conducted by the Director, OMB, prior to the report's submission.
Sec. 501. Appointments. The authority of the President under sections 708(c) and (d) of the Act is delegated to the heads of each Federal department or agency, except that, insofar as that authority relates to section 101 of the Act, it is delegated only to the heads of each Federal department or agency assigned functions under section 201(a) of this order. The authority delegated under this section shall be exercised pursuant to the provisions of section 708 of the Act, and copies and the status of the use of such delegations shall be furnished to the Director, FEMA.
Sec. 502. Advisory Committees. The authority of the President under section 708(d) of the Act and delegated in section 501 of this order (relating to establishment of advisory committees) shall be exercised only after consulta-tion with, and in accordance with, guidelines and procedures established by the Administrator of General Services.
PART VI--EMPLOYMENT OF PERSONNEL
Sec. 601. National Defense Executive Reserve.
(b) The head of any department or agency may establish a unit of the NDER in the department or agency and train members of that unit.
(c) The head of each department or agency with an NDER unit is authorized to exercise the President's authority to employ civilian personnel in accord-ance with section 703(a) of the Act when activating all or a part of its NDER unit. The exercise of this authority shall be subject to the provisions of subsections 601(d) and (e) of this order and shall not be redelegated.
(d) The head of a department or agency may activate an NDER unit, in whole or in part, upon the written determination that an emergency affecting the national security or defense preparedness of the United States exists and that the activation of the unit is necessary to carry out the emergency program functions of the department or agency.
(e) At least 72 hours prior to activating the NDER unit, the head of the department or agency shall notify, in writing, the Assistant to the Presi-dent for National Security Affairs of the impending activation and provide a copy of the determination required under subsection 601(d) of this order
(f) The Director, FEMA, shall coordinate the NDER program activities of departments and agencies in establishing units of the Reserve; provide for appropriate guidance for recruitment, training, and activation; and issue necessary rules and guidance in connection with the program.
(g) This order suspends any delegated authority, regulation, or other re-quirement or condition with respect to the activation of any NDER unit, in whole or in part, or appointment of any NDER member that is inconsistent with the authorities delegated herein, provided that the aforesaid suspension applies only as long as sections 703(a) and 710(e) of the Act are in effect.
PART VII---LABOR SUPPLY
Sec. 701. Secretary of Labor. The Secretary of Labor, identified in this section as the Secretary, shall:
(b) In response to requests from the head of a Federal department or agency engaged in the procurement for national defense, consult with and advise that department or agency with respect to (1) the effect of contemplated actions on labor supply and utilization. (2) the relation of labor supply to materials and facilities requirements. and (3) such other matters as will assist in making the exercise of priority and allocations functions consistent with effective utilization and distribution of labor;
(c) Formulate plans, programs, and policies for meeting defense and essen-tial civilian labor requirements;
(d) Project skill shortages to facilitate meeting defense and essential civilian needs and establish training programs;
(e) Determine the occupations and skills critical to meeting the labor requirements of defense and essential civilian activities and, with the assist-ance of the Secretary of Defense, the Director of Selective Service. and such other persons as the Director, FEMA, may designate, develop policies regulating the induction and deferment of personnel for the armed services. except for civilian personnel in the reserves; and
(f) Administer an effective labor-management relations policy to support the activities and programs under this order with the cooperation of other Federal agencies, including the National Labor Relations Board and the Federal Mediation and Conciliation Service.
Sec. 801. Foreign Acquisition of Companies. The Secretary of the Treasury, in cooperation with the Department of State, the Department of Defense, the Department of Commerce, the Department of Energy, the Department of Agriculture, the Attorney General, and the Director of Central Intelligence, shall complete and furnish a report to the President and then to Congress in accordance with the requirements of section 721(k) of the Act concerning foreign efforts to acquire United States companies involved in research, development, or production of critical technologies and industrial espionage activities directed by foreign governments against private U.S. companies.
Sec. 802. Defense Industrial Base information System.
(b) In establishing the information system required by subsection (a) of this order, the Secretary of Defense, the Secretary of Commerce, and the heads of other appropriate Federal departments and agencies, as determined by the Secretary of Defense in consultation with the Secretary of Commerce, shall consult with each other for the purposes of performing the duties listed in section 722(d)(1) of the Act.
(c) The Secretary of Defense shall convene a task force consisting of the Secretary of Commerce and the Secretary of each military department and the heads of other appropriate Federal departments and agencies, as determined by the Secretary of Defense in consultation with the Secretary of Commerce, to carry out the duties under section 722(d)(2) of the Act.
(d) The Secretary of Defense shall report to Congress on a strategic plan for developing a cost-effective, comprehensive information system capable of identifying on a timely, ongoing basis vulnerability in critical components and critical technology items. The plans shall include an assessment of the performance and cost-effectiveness of procedures specified in section 722(b) of the Act.
(e) The Secretary of Commerce, acting through the Bureau of the CensUs, shall consult with the Secretary of Defense and the Director, FEMA, to improve the usefulness of information derived from the Census of Manufac-turers in carrying out section 722 of the Act.
(f) The Secretary of Defense shall perform an analysis of the production base for not more than two major weapons systems of each military department in establishing the information system under section 722 of the Act. Each analysis shall identify the critical components of each system.
(g) The Secretary of Defense, in consultation with the Secretary of Commerce, and the heads of other Federal departments and agencies as appro-priate, shall issue a biennial report on critical components and technology in accordance with section 722(e] of the Act.
Sec. 901. Definitions. In addition to the definitions in section 702 of the Act, the following definitions apply throughout this order:
(b) "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 liquification, and coal gasification), and atomic or. orgy, and the production, conservation, use, control, and distribu-tion (including pipelines] of all of these forms of energy.
(c) "Farm equipment" means equipment, machinery, and repair parts man-ufactured for use on farms in connection with the production or preparation for market use of food resources.
(d) "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.
(e) "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 all starches, sugars, vegetable and animal or marine fats and oils, cotton, tobacco, wool, mohair, hemp, flax fiber, and naval stores, but does not mean any such material after it loses its identity as an agricultural commodity or agricultural product.
(f) "Food resource facilities" means plants, machinery, vehicles (including on-farm), and other facilities required for the production, processing, distribu-tion, and storage (including cold storage) of food resources, livestock and poultry feed and seed, and for the domestic distribution of farm equipment and fertilizer (excluding transportation thereof.
(g) "Functions" include powers, duties, authority, responsibilities, and discretion.
(h) "Head of each Federal department or agency engaged in procurement for the national defense" means the heads of the Departments of Defense, Energy, and Commerce, as well as those departments and agencies listed in Executive Order No. 10789.
(i) "Heads of other appropriate Federal departments and agencies" as used in part VIII of this order means the heads of such other Federal agencies and departments that acquire information or need information with respect to making any determination to exercise any authority under the Act.
(j) "Health resources" means materials, facilities, health supplies, and equipment (including pharmaceutical, blood collecting and dispensing sup-plies, biological, surgical textiles, and emergency surgical instruments and supplies) required to prevent the impairment of, improve, or restore the physical and mental health conditions of the population.
(k) "Metals and minerals" means all raw materials of mineral origin (ex-cluding energy) including their refining, smelting, or processing, but exclud-ing their fabrication.
(l) "Strategic and Critical Materials" means materials (including energy] that (1) would be needed to supply the military, industrial, and essential civilian needs of the United States during a national security emergency, and (2) are not found or produced in the United States in sufficient quantities to meet such need and are vulnerable to the termination or reduction of the availability of the material.
(m) "Water resources" means all usable water, from all sources, within the jurisdiction of the United States, which can be managed, controlled, and allocated to meet emergency requirements.
(b) The authorities which may be exercised and performed pursuant to subsection 902(a) of this order shall include (1) the power to redelegate authorities, and to authorize the successive redelegation of authorities, to departments and agencies, officers, and employees of the government, and (2) the power of subpoena with respect to authorities delegated in parts II, III, and IV of this order, provided that the subpoena power shall be utilized only after the scope and purpose of the investigation, inspection, or inquiry to which the subpoena relates have been defined either by the appropriate officer identified in subsection 902(a) of this order or by 'such other person or persons as the officer shall designate.
(c) Excluded from the authorities delegated by subsection 902(a) of this order are authorities delegated by parts V, VI, and VIII of this order and the authority with respect to fixing compensation under section 703(a) of the Act.
Sec. 904. Effect on other Orders.
(1) Section 3, Executive Order No. 8248 of September 8, 1939, (4 FR 3864).
(2) Executive Order No. 10222 of March 8, 1951 (16 FR 2247).
(3) Executive Order. No. 10480 of August 14, 1953 (18 FR 4939).
(4) Executive Order No. 10647 of November 28, 1955 (20 FR 8769).
(5) Executive Order No. 11179 of September 22, 1964 (29 FR 13239].
(6) Executive Order No. 11355 of May 26, 1967 (32 FR 7803).
(7) Sections 7 and 8, Executive Order No. 11912 of April 13, 1976 (41 FR 15825, 15826-27).
(8) Section 3, Executive Order No. 12148 of July 20, 1979 (44 FR 43239, 43241).
(9) Executive Order No. 12521 of June 24, 1985 (50 FR 26335).
(10) Executive Order No. 12649 of August 11, 1988 (53 FR 30639).
(11) Executive Order No. 12773 of September 26, 1991 (56 FR 49387], except that part of the order that amends section 604 of Executive Order 10480.
(b) Executive Order No. 10789 of November 14, 1958, is amended by deleting "and in view of the existing national emergency declared by Procla-mation No. 2914 of December 16, 1950," as it appears in the first sentence.
(c) Executive Order No. 11790, as amended, relating to the Federal Energy Administration Act of 1974, is mended by deleting "Executive Order No. 10480" where it appears in section 4 and substituting this order's number.
(d) Subject to subsection 904(c) of this order, to the extent that any provision of any prior Executive order is inconsistent with the provisions of this order, this order shall control and such prior provision is amended accordingly.
Sec. 905. Judicial Review. This order is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, its officers, or any person.
William J. Clinton
THE WHITE HOUSE,
June 3, 1994.