President Trump recently issued two separate Executive Orders (EOs) that will have implications for how federal agencies seek to promote the administration’s goal of attracting domestic and foreign investment to industrial projects in the United States, with particular implications for the semiconductor and critical minerals industries. 

  1. An EO on March 31st establishes an “Investment Accelerator” office within the Department of Commerce that will be responsible for overseeing the implementation of the CHIPS Program—including the negotiation of agreements under the CHIPS Act.  This office will also provide technical and regulatory support for investors, and seek to facilitate research collaborations between private industry and national labs. 
  2. An earlier EO issued on March 20th seeks to mobilize federal lending and leasing authorities at the Department of Defense (DoD), the U.S. International Development Finance Corporation (DFC), and other federal agencies to support the development of domestic critical mineral projects.  Per an accompanying fact sheet, the White House is taking a broad interpretation of covered minerals under this March 20th Order and will seek to include materials such as coal. 

Both EOs are notable efforts by the White House to align federal spending and financial assistance programs with the Trump Administration’s priorities, which have variously included calls to promote self-sufficiency in critical materials and promoting “energy independence” and “energy dominance.”  These efforts come against a backdrop under which the Administration is also pursuing the use of tariffs to promote U.S. manufacturing, and taking steps to review and in some cases modify or terminate infrastructure or energy-related grants from the Biden-era.  More details are provided below.  

  1. Department of Commerce to Establish Investment Accelerator to Oversee CHIPS Program and Promote Domestic Investment

    On March 31st, President Trump issued an Executive Order directing the Secretary of Commerce to coordinate with the Secretary of Treasury and the Assistant to the President for Economic Policy to establish a new office—the “United States Investment Accelerator.”  This office will be tasked with among other things, “facilitat[ing] and accelerat[ing] investments above $1 billion in the United States by assisting investors as they navigate United States Government regulatory processes efficiently[.]”  The EO and accompanying fact sheet indicate this office will largely be focused on providing technical and regulatory support for large-scale projects, including by, as described in the EO, “identify[ing] any existing mechanisms, exceptions, and opportunities in Federal law that can be used to assist foreign and domestic investors,” more generally “reduc[ing] regulatory burdens where consistent with applicable law,” and “facilitat[ing] research collaborations with our national labs[.]”  

    The Investment Accelerator will also be responsible for administering the CHIPS Program Office, and is tasked with “negotiating much better deals than those of the previous administration.”  While there are limited operational details at this time, the Secretary of Commerce is directed to establish the new office within 30 days (i.e., by April 30th), at which point the contours of the Investment Accelerator are likely to become more clear.

    1. President Trump directs agencies to utilize leasing and lending authorities, and other tools to promote domestic mineral industry.

    On March 20th, the Trump Administration issued a separate EO that seeks to catalyze investment in domestic mineral production, including by leveraging the authorities of the DoD, DFC, and other federal agencies, to provide loans and other forms of federal financial assistance to critical mineral projects.  Among other things, this EO directs the following actions:

    • Directs DoD and DoE to Provide Leases and Federal Financial Assistance for Domestic Mineral Projects—The Secretaries of Defense and Energy are directed to enter into extended use leases for federally managed land that is suitable for the construction and operation of private commercial mineral production enterprises, and within 30 days (i.e., by April 19th), shall coordinate with any other agencies that “provides or can provide loans, capital assistance, technical assistance, and working capital” to ensure such projects “can utilize as many favorable terms and conditions as are available under public assistance programs for these purposes, consistent with applicable law.” 

    • Delegates Authority to DoD to Support Critical Mineral Projects under the Defense Production Act (DPA)—The EO delegated to the Secretary of Defense authority under Section 303 of the DPA to support domestic mineral production.  Section 303 of the DPA authorizes, among other things, purchases or purchase commitments of industrial resources or critical technology items, subsidy payments for domestically produced materials; and the installation and purchase of equipment for government and privately owned industrial facilities to expand their productive capacity.

    • Delegates Authority the International Development Finance Corporation (DFC) to make grants and loans and provide other support for critical minerals under the DPA— Through the March 20th EO, President Trump delegated to the Secretary of Defense authority under Sections 301, 302, and 303 of the DPA to support domestic mineral production.  In addition to the Section 303 authorities to make purchase commitments, subsidy payments, or install and purchase equipment, Sections 301 and 302 of the DPA authorize the issuance of 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.  Additionally, the March 20th EO also delegates to the DFC  authority under the DPA to issue regulations, obtain information, inspect books and records, issue subpoenas, and enforce the provisions of the DPA in Court.  The DFC is also delegated authority under the DPA to establish a volunteer body of industry executives, known as a “Nucleus Executive Reserve” or “National Defense Executive Reserve.”

    • Directs the DFC and DoD to develop and propose a plan for a dedicated mineral and mineral production fund for domestic investments executed by the DFC—Pursuant to the Economy Act—which in some instances authorizes federal agencies to purchase goods or services from other federal agencies or units within the same agency by reimbursing the providing agency for the actual cost of such goods and services—DoD is directed to transfer any appropriated funds from the Defense Production Act Fund or from the Office of Strategic Capital to reimburse the DFC for any activities it undertakes to support critical minerals production under the DPA.  The Secretary of Defense, the CEO of the DFC, and the Assistant to the President for National Security Affairs have a 30 day window (i.e., by April 19th) to develop and propose an implementing plan for the establishment of dedicated mineral and mineral production fund using these appropriated resources.

    • Directs government leaders to convene the private sector and solicit their input—The March 20th order also makes efforts to convene and solicit private sector input.  Within 30 days of the order (i.e., by April 19th), the Assistant Secretary of Defense for Industrial Base Policy is required to convene buyers of minerals and work towards an announced request for bids to supply the minerals.  Similarly, the Chair of the National Energy Dominance Council (NEDC), in consultation with relevant agencies, shall issue a request for information to solicit industry feedback on regulatory bottlenecks and other recommended strategies for expediting domestic mineral production.

    • Directs Export-Import Bank to leverage financing tools—The March 20th Order directs that within 30 days (i.e., by April 19th) the President of the Export-Import Bank will release “program guidance for the use of mineral and mineral production financing tools authorized under the Supply Chain Resiliency Initiative to secure United States offtake of global raw mineral feedstock for domestic minerals processing and production, as well as under the Make More in America Initiative to support domestic mineral production.” Under the Supply Chain Resiliency Initiative, the Export-Import Bank provides financing for international projects with signed long-term “off-take” contracts with U.S. companies, providing these U.S. companies with access to critical minerals from partner countries.  Under the Make More in America Initiative, the Export-Import Bank makes available the agency’s existing medium- and long-term loans, loan guarantees, and insurance to export-oriented domestic manufacturing projects.

    The March 30th Order also takes various other actions to expedite domestic mineral production, including (a) directing agencies to prepare a list of all mineral production projects for which a plan of operations, a permit application, or other application for approval has been submitted; (b) directing the Chair of the National Energy Dominance Council to submit projects to the Permitting Council for expedited permitting review; (c) directing the Chair of the NEDC and the Office of Legislative Affairs to prepare and submit recommendations “to the President for the Congress to clarify the treatment of waste rock, tailings, and mine waste disposal under the Mining Act of 1872”; and (d) directing the Administrator of the Small Business Administration to prepare recommendations for legislation to enhance private-public capital activities to support financings to domestic small businesses engaged in mineral production, and promulgate related regulations, rules, and guidelines. 

    As with the Investment Accelerator EO, the contours of the March 20th Minerals EO will become more clear with time, and particularly after the April 19th deadline for the Export-Import Bank to issue program guidance, and for the Secretary of Defense and the CEO of the DFC to provide an implementation plan for the creation of domestic mineral production fund.  This guidance and implementation plan may clarify the amount of funding available to support these mining initiatives, including the amount of funds that will be reallocated from the Office of Strategic Capital and the Defense Production Act fund.  

    Photo of Michael Wagner Michael Wagner

    Mike Wagner represents companies and individuals in complex compliance and enforcement matters arising in the public procurement context. Combining deep regulatory expertise and extensive investigations experience, Mike helps government contractors navigate detailed procurement rules and achieve the efficient resolution of government investigations and…

    Mike Wagner represents companies and individuals in complex compliance and enforcement matters arising in the public procurement context. Combining deep regulatory expertise and extensive investigations experience, Mike helps government contractors navigate detailed procurement rules and achieve the efficient resolution of government investigations and enforcement actions.

    Mike regularly represents contractors in federal and state compliance and enforcement matters relating to a range of procurement laws and regulations. He has particular experience handling investigations and litigation brought under the civil False Claims Act, and he routinely counsels government contractors on mandatory and voluntary disclosure considerations under the FAR, DFARS, and related regulatory regimes. He also represents contractors in high-stakes suspension and debarment matters at the federal and state levels, and he has served as Co-Chair of the ABA Suspension & Debarment Committee and is principal editor of the American Bar Association’s Practitioner’s Guide to Suspension & Debarment (4th ed.) (2018).

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    Photo of Martin Levy Martin Levy

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    Photo of Daniel Raddenbach Daniel Raddenbach

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