Skip to content

Menu

LexBlog, Inc. logo
CommunitySub-MenuPublishersChannelsProductsSub-MenuBlog ProBlog PlusBlog PremierMicrositeSyndication PortalsAboutContactResourcesSubscribeSupport
Join
Search
Close

President Issues DPA Determination to Promote Domestic Supply of Strategic and Critical Materials for Large-Capacity Batteries

By Stephanie Crawford, Lyndsay Gorton, Byron Brown, John E. McCarthy Jr. & Jonathan M. Baker on April 11, 2022
Email this postTweet this postLike this postShare this post on LinkedIn

In an effort to boost the domestic mining industry for critical minerals, on March 31, 2022, President Biden issued Presidential Determination 2022-11, the Memorandum on Presidential Determination Pursuant to Section 303 of the Defense Production Act of 1950, as amended (“Presidential Determination”).  The Presidential Determination states that sustainable and responsible domestic mining, beneficiation, and value-added processing of strategic and critical materials for the production of large-capacity batteries, including lithium, nickel, cobalt, graphite, and manganese, are essential to national defense.  The Presidential Determination will allow the Department of Defense (“DoD”) to pursue various investment, purchase commitment, and purchase vehicles to support strategic and critical material mining and production in the United States pursuant to Title III of the Defense Production Act (“DPA”).

Defense Production Act Title III

The DPA Title III, Section 303 authorities are intended to provide the President broad latitude in supporting critical domestic industrial base capabilities.  While other parts of the DPA concern loans, prioritization orders, and allocation orders, Title III is focused on alternative domestic investment options.  It is concerned with the expansion of productive capacity and supply in the United States rather than prioritized procurement or allocation.  Under Title III generally,[1] the Government may:

  • make provision for purchases of or commitments to purchase an industrial resource or critical technology item for Government use or resale;
  • make provision for the development of production capabilities, the increased use of emerging technologies in security program applications, and the rapid transition of emerging technologies;
  • make subsidy payments for raw or nonprocessed materials from high-cost sources under certain conditions;
  • encourage the exploration, development, and mining of strategic and critical materials;
  • make provision for the development of substitutes for strategic and critical materials, components, technology, and other resources to aid national defense;
  • procure and install additional equipment, facilities, processes, or improvements to plants, factories, and other industrial facilities owned by the federal government;
  • procure and install Government-owned equipment in privately-owned plants, factories, and other industrial facilities;
  • provide for the modification or expansion of privately-owned facilities, including the modification or improvement of production processes;
  • permit agencies engaged in procurement for national defense to restrict solicitations to reliable and/or domestics sources; to stockpile critical components; and to develop substitutes for critical components or technology.

Title III, Section 303 requires certain determinations to be made by the President before the authorities therein become available.[2]

Effect of Presidential Determination 2022-11

Pursuant to the Presidential Determination, the DoD is to exercise DPA Title III, Section 303 authorities, including purchases, purchase commitments, equipment transfer, and facility modification, among other things, to encourage private industry to meet this government need for domestic production of critical materials.  This authority is to be exercised in consultation with the Departments of Interior, Agriculture, and Energy, and other agencies as deemed appropriate.[3]  DoD is required to support feasibility studies for the strategic and critical material projects undertaken, which are to address mature mining, beneficiation, and value-added processing projects; by-product and co-product production at existing mining, mine waste reclamation, and other industrial facilities; and mining, beneficiation, and value-added processing modernization to increase productivity, environmental sustainability, and workforce safety.[4]

Key Takeaways

This action follows a June 2021 report on defense critical supply chain vulnerabilities conducted by DoD and the Departments of Commerce, Energy, and Health and Human Services pursuant to Executive Order 14017, which recommended the Government use the DPA to boost domestic mineral production.  The Department of Energy’s June 2021 National Blueprint for Lithium Batteries has called for the United States and its partners to establish a secure supply chain for lithium and other electric vehicle battery components by 2030.  And the Presidential Determination comes on the heels of the Administration’s Infrastructure Investment and Jobs Act that also included significant measures such as grants, loan guarantees, and streamlined regulations to address domestic critical minerals supply chain vulnerabilities.  The development of domestic supply chains for critical minerals, which are key components in renewable energy applications and electric vehicle batteries, is essential for the Biden administration to meet its goal of having the U.S. government transition to a zero-emission vehicle fleet by 2035 and net-zero emissions economywide by 2050.

You can access Crowell & Moring’s primer webinar here discussing the DPA.  Additionally, you can find Crowell & Moring’s summaries of the DPA here and Defense Priorities and Allocations System (DPAS) here.

Photo of Stephanie Crawford Stephanie Crawford
Read more about Stephanie CrawfordEmail
Photo of Lyndsay Gorton Lyndsay Gorton

Lyndsay Gorton is a Government Contracts counsel in Crowell & Moring’s Washington, D.C. office. Her practice focuses on government contracts litigation and counseling, including government investigations, fraud matters under the False Claims Act, bid protests, and federal and state regulatory compliance. In addition…

Lyndsay Gorton is a Government Contracts counsel in Crowell & Moring’s Washington, D.C. office. Her practice focuses on government contracts litigation and counseling, including government investigations, fraud matters under the False Claims Act, bid protests, and federal and state regulatory compliance. In addition to her primary government contracts practice, Lyndsay has federal court litigation experience representing a broad variety of clients in commercial litigation matters, and has led and managed teams at every stage of litigation, including discovery, dispositive motion practice, trial, and settlement. She also uses her litigation experience to assist her clients with internal investigations, risk management, and compliance.

Read more about Lyndsay GortonEmail
Show more Show less
Photo of Byron Brown Byron Brown

Byron R. Brown is a senior counsel in the Washington D.C. office. He is in the firm’s Government Affairs and Environment & Natural Resources groups. Byron has almost two decades of experience working at the intersection of law and policy and has experience…

Byron R. Brown is a senior counsel in the Washington D.C. office. He is in the firm’s Government Affairs and Environment & Natural Resources groups. Byron has almost two decades of experience working at the intersection of law and policy and has experience negotiating legislation, drafting regulations, managing congressional investigations, preparing regulatory comments, and developing and executing government affairs strategies before Congress and the executive branch. Earlier in his career, Byron worked for more than a decade as an attorney in the U.S. Environmental Protection Agency’s Office of General Counsel, including several years as associate deputy general counsel during both the Bush and Obama administrations. After leaving EPA, Byron served as senior counsel and director of oversight and investigations for the Committee on Natural Resources for the U.S. House of Representatives and then as senior counsel for the Committee on Environment and Public Works in the U.S. Senate. He also has experience as a legislative fellow in the personal office of a U.S. Senator. Prior to joining the firm in August 2018, Byron served as deputy chief of staff for policy at the EPA, where he coordinated the agency’s work on infrastructure and led several rulemaking initiatives.

Read more about Byron BrownEmail
Show more Show less
Photo of John E. McCarthy Jr. John E. McCarthy Jr.
Read more about John E. McCarthy Jr.Email
Photo of Jonathan M. Baker Jonathan M. Baker
Read more about Jonathan M. BakerEmail
  • Posted in:
    Administrative, Corporate Compliance
  • Blog:
    Government Contracts Legal Forum
  • Organization:
    Crowell & Moring LLP
  • Article: View Original Source

LexBlog, Inc. logo
Facebook LinkedIn Twitter RSS
Real Lawyers
99 Park Row
  • About LexBlog
  • Careers
  • Press
  • Contact LexBlog
  • Privacy Policy
  • Editorial Policy
  • Disclaimer
  • Terms of Service
  • RSS Terms of Service
  • Products
  • Blog Pro
  • Blog Plus
  • Blog Premier
  • Microsite
  • Syndication Portals
  • LexBlog Community
  • 1-800-913-0988
  • Submit a Request
  • Support Center
  • System Status
  • Resource Center

New to the Network

  • Pro Policyholder
  • The Way on FDA
  • Crypto Digest
  • Inside Cybersecurity & Privacy Law
  • La Oficina Legal Ayala Hernández
Copyright © 2022, LexBlog, Inc. All Rights Reserved.
Law blog design & platform by LexBlog LexBlog Logo