On July 30, 2026, the President signed a Presidential Determination (the “Determination”) invoking Section 101 of the Defense Production Act of 1950, as amended (50 U.S.C. § 4511), with respect to “recoverable critical minerals and materials” (“recoverable CMMs”) – a category expressly defined to include black mass.

The Determination makes the statutory findings necessary to unlock DPA allocation authority over these materials and directs the Secretary of Commerce (most likely through the Bureau of Industry & Security) to implement it through regulations, rules, guidance, and procedures. A companion White House fact sheet describes the action as granting Commerce “the authority to institute export restrictions” on recoverable CMMs.

The Determination itself imposes no export ban and no immediate restriction of any kind. It is the legal foundation on which Commerce will build; the scope, mechanism (including a possible licensing process), and timing of any actual export controls will be set in forthcoming Commerce rulemaking.

II. BACKGROUND AND LEGAL AUTHORITY

Section 101 of the DPA houses the President’s priorities and allocations authority. Under Section 101(b), the President may control the general distribution of a material in the civilian market only after making two findings: that the material is scarce and critical to the national defense, and that defense requirements cannot otherwise be met without significant civilian-market dislocation. The

Determination tracks the statute verbatim:

“I hereby find, pursuant to section 101 of the Act, that: (i) recoverable CMMs are scarce and critical materials essential to the national defense; and (ii) the requirements of the national defense for recoverable CMMs 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.”

The policy findings underscore the administration’s framing: recoverable CMMs are “industrial resources necessary to promote the national defense”; U.S. reliance on imports “threatens serious, sustained supply chain disruptions”; and “immediate action” is imperative to secure supply. The action sits within a broader critical-minerals agenda dating to March 2025, including Executive Order 14241,the Section 232 investigation of processed critical minerals, and the July 2026 defense supply chain executive order.

III. COVERED MATERIALS

The Determination defines the covered universe broadly:

“The term ‘recoverable critical minerals and materials’ includes black mass, end-of- life, rare-earth permanent magnets or other goods that have fully completed the manufacturing process; swarf; and other waste and scrap containing critical minerals and materials.”

Black mass is named explicitly and covered in its entirety at the definitional level. Copper scrap is expressly carved out, as it is separately addressed by Proclamation 10962 of July 30, 2025 (Adjusting Imports of Copper Into the United States).

The underlying “critical minerals and materials” definition incorporates minerals identified under Executive Order 14241, strategic and critical materials under 50 U.S.C. § 98h-3, and materials defined in the Energy Act of 2020 – and, notably, extends to any additional minerals the Secretary of Commerce later designates, meaning the covered universe can expand administratively without further Presidential action.

IV. IMPLEMENTATION DIRECTIVE

The Determination is addressed to the Secretary of Commerce and concludes with its only operative directive:

“You are authorized and directed to implement this determination by taking all appropriate action under section 101 of the Act pursuant to the authority delegated to the Secretary of Commerce in Executive Order 13603, including by issuing regulations, rules, guidance, and procedures, and to publish this determination in the Federal Register.”

In practice, DPA priorities-and-allocations authority for industrial resources is administered at Commerce by the Bureau of Industry and Security through the Defense Priorities and Allocations System (DPAS, 15 C.F.R. Part 700). Implementing action is therefore most likely to come from Commerce/BIS, whether as an action under or amendment to the DPAS framework or as a standalone rule.

The Determination prescribes no mechanism, and the fact sheet’s framing – that it “grants the Secretary of Commerce the authority to institute export restrictions” – describes discretionary authority rather than a mandate to prohibit all exports. The full menu of implementation options remains open to Commerce, including:

  • a case-by-case licensing or exemption regime, under which black mass exports would require Commerce approval before shipment;
  •  destination-based restrictions (for example, permitting exports to allied processing partners while prohibiting shipments to countries of concern);
  • quantitative limits or domestic-allocation orders requiring that some or all material be offered to U.S. processors first; or
  • a categorical export prohibition on some or all covered material.

Precedent supports the viability of a licensing-style approach. In April 2020, the President invoked this same Section 101 allocation authority for personal protective equipment; FEMA implemented it through a temporary final rule under which covered exports were detained at the border but could proceed with case-by-case agency approval – functionally an export-licensing regime, not an absolute ban.

Please do not hesitate to reach out to Constitution Partners with any additional questions.