AUKUS

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On July 9, 2024, President Biden officially delegated a number of Presidential authorities to members of his Cabinet in regards to AUKUS.

The President shall determine the appropriate public or private shipyard in the United States, Australia, or the United Kingdom to perform any repair or refurbishment of a United States submarine involved in submarine security activities between the United States, Australia, and the United Kingdom.

(COMPLETE DETAILS BELOW)

Report to Congress on Virginia-class Submarine Program, AUKUS:

Nearly 40% of US attack submarines in or awaiting repair as shipyards face worker shortages, supply chain issues

https://www.cnn.com/2023/07/12/politics/us-attack-submarines-repair/index.html

What is AUKUS?

In September 2021, the Australian, UK, and U.S governments announced a significant new security partnership, called AUKUS.

Pillar 1 of AUKUS is a project to

(1) rotationally deploy four U.S. SSNs and one UK SSN out of a port in Western Australia;

(2) more significantly, sell three to five Virginia-class SSNs to Australia and subsequently build three to five replacement SSNs for the U.S. Navy; and

(3) have the United States and UK provide assistance to Australia for an Australian effort to build additional three to five SSNs of a new UK-Australian SSN design to complete a planned eight-boat Australian SSN force.

https://s3.documentcloud.org/documents/24955603/report-to-congress-on-navy-virginia-class-submarine-program-and-aukus-submarine-pillar-1-project.pdf

https://www.defense.gov/Spotlights/AUKUS/

Below are the details of the authorities that President Biden delegated to members of his Cabinet on July 9, 2024 in regards to AUKUS.

Federal Register Document

Memorandum of July 9, 2024

Delegation of Functions and Authorities Under Sections 1333, 1342, 1352, and 1353 of the National Defense Authorization Act for Fiscal Year 2024

Memorandum for the Secretary of State[,] the Secretary of Defense[,] the Secretary of Energy[, and] the Director of the Office of Management and Budget

By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 301 of title 3, United States Code:

Section 1 . (a) I hereby delegate to the Secretary of Defense, in consultation with the Secretary of Energy, the functions and authorities vested in the President by section 1352(g) of the National Defense Authorization Act for Fiscal Year 2024 (Public Law 118-31) (the “Act”).

(b) I hereby delegate to the Secretary of Defense, in consultation with the Secretaries of State and Energy, the functions and authorities vested in the President by sections 1352(h)(4), 1352(d)(1), and 1352(e)(2)(A) of the Act.

(c) I hereby delegate the functions and authorities vested in the President by the following provisions of the Act as follows:

(i) to the Secretary of State, in consultation with the Secretaries of Defense and Energy, as appropriate, section 1333 of the Act;

(ii) to the Secretary of State, in consultation with the Secretaries of Defense and Energy, section 1342 of the Act;

(iii) to the Secretary of Defense, in consultation with the Secretary of Energy, section 1352(e)(2)(B) of the Act;

(iv) to the Secretary of Defense, in consultation with the Secretary of Energy, section 1352(e)(2)(C) of the Act;

(v) to the Secretary of Defense, in consultation with the Secretaries of State and Energy, section 1352(i) of the Act; and

(vi) to the Secretary of Defense for funds allocated to the Department of Defense account and to the Secretary of Energy for funds allocated to the Department of Energy account, in coordination with the Director of the Office of Management and Budget, section 1353(d), (h), and (i) of the Act.

Sec. 2 . The delegation in this memorandum shall apply to any provision of any future public law that is the same or substantially the same as the provision referenced in this memorandum.

Sec. 3 . The Secretary of Defense is authorized and directed to publish this memorandum in the Federal Register.

THE WHITE HOUSE, Washington, July 9, 2024 Filed 7-11-24; 11:15 am]

https://www.federalregister.gov/documents/2024/07/12/2024-15533/delegation-of-functions-and-authorities-under-sections-1333-1342-1352-and-1353-of-the-national

https://www.govinfo.gov/content/pkg/FR-2024-07-12/pdf/2024-15533.pdf

Details:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 301 of title 3, United States Code:

§ 301. General authorization to delegate functions; publication of delegations

The President of the United States is authorized to designate and empower the head of any department or agency in the executive branch, or any official thereof who is required to be appointed by and with the advice and consent of the Senate, to perform without approval, ratification, or other action by the President (1) any function which is vested in the President by law, or (2) any function which such officer is required or authorized by law to perform only with or subject to the approval, ratification, or other action of the President: Provided, That nothing contained herein shall relieve the President of his responsibility in office for the acts of any such head or other official designated by him to perform such functions. Such designation and authorization shall be in writing, shall be published in the Federal Register, shall be subject to such terms, conditions, and limitations as the President may deem advisable, and shall be revocable at any time by the President in whole or in part.

https://www.govinfo.gov/content/pkg/USCODE-2023-title3/pdf/USCODE-2023-title3-chap4-sec301.pdf

Section 1 . (a) I hereby delegate to the Secretary of Defense, in consultation with the Secretary of Energy, the functions and authorities vested in the President by section 1352(g) of the National Defense Authorization Act for Fiscal Year 2024 (Public Law 118-31) (the “Act”).

(g) REPAIR AND REFURBISHMENT OF AUKUS SUBMARINES.— Section 8680 of title 10, United States Code, is amended—

(1) by redesignating subsection (c) as subsection (d); and (2) by inserting after subsection (b) the following new subsection:

‘‘(c) REPAIR AND REFURBISHMENT OF CERTAIN SUBMARINES.—

(1) Notwithstanding any other provision of this section, and subject to paragraph (2), the President shall determine the appropriate public or private shipyard in the United States, Australia, or the United Kingdom to perform any repair or refurbishment of a United States submarine involved in submarine security activities between the United States, Australia, and the United Kingdom.

‘‘(2)(A) The President may determine under paragraph (1) that repair or refurbishment described in such paragraph may be performed in Australia or the United Kingdom only if—

‘‘(i) such repair or refurbishment will facilitate the development of repair or refurbishment capabilities in the United Kingdom or Australia;

‘‘(ii) such repair or refurbishment will be for a United States submarine that is operating forward outside of the United States; or

‘‘(iii) the Secretary of Defense certifies to Congress that performing such repair or refurbishment at a shipyard in Australia or the United Kingdom is required due to an exigent threat to the national security interests of the United States. Determination.

‘‘(B) In making a determination under subparagraph (A), the President shall consider any effects of such determination on the capacity and capability of shipyards in the United States.

‘‘(C) Not later than 15 days after the date on which the Secretary of Defense makes a certification under subparagraph

(A)(iii), the Secretary shall brief the congressional defense committees on—

‘‘(i) the threat that requires the use of a shipyard in Australia or the United Kingdom; and

‘‘(ii) opportunities to mitigate the future potential need to leverage foreign shipyards.

‘‘(3) Repair or refurbishment described in paragraph (1) may be carried out by personnel and contractors of the United States, the United Kingdom, or Australia in accordance with the international arrangements governing the submarine security activities described in such paragraph.’’.

https://www.govinfo.gov/content/pkg/PLAW-118publ31/pdf/PLAW-118publ31.pdf (pages 383-384)

(b) I hereby delegate to the Secretary of Defense, in consultation with the Secretaries of State and Energy, the functions and authorities vested in the President by sections 1352(h)(4), 1352(d)(1), and 1352(e)(2)(A) of the Act.

SEC. 1352. AUTHORIZATION OF SALES OF VIRGINIA CLASS SUBMARINES TO AUSTRALIA.

(h) TRANSFER OR EXPORT OF DEFENSE SERVICES.—

(4) SECURITY CONTROLS.—

(A) IN GENERAL.—

Any defense service transferred or exported under paragraph (1) shall be subject to appropriate security controls to ensure that any sensitive information conveyed by such transfer or export is protected from disclosure to persons unauthorized by the United States to receive such information.

(B) CERTIFICATION.—

Not later than 30 days before the first transfer or export of a defense service under paragraph (1), and annually thereafter, the President shall certify to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives that the controls described in subparagraph (A) will protect the information described in such subparagraph for the defense services so transferred or exported.

https://www.govinfo.gov/content/pkg/PLAW-118publ31/pdf/PLAW-118publ31.pdf (page 384)

(d) CERTIFICATIONS AND OTHER REQUIREMENTS.—

(1) IN GENERAL.—Not later than 270 days prior to the transfer of a vessel authorized under subsection (a), the President shall submit to the appropriate congressional committees and leadership a certification that—

(A) the transfer of such vessels—

(i) will not degrade the United States undersea capabilities;

(ii) is consistent with United States foreign policy and national security interests; and

(iii) is in furtherance of the AUKUS partnership;

(B) the United States is making sufficient submarine production and maintenance investments to meet the combination of United States military requirements and the requirements under subparagraph (A);

(C) the Government of Australia has provided the appropriate funds and support for the additional capacity required to meet the requirements identified in this section; and

(D) the Government Australia has the capability to host and fully operate the vessels authorized to be transferred.

https://www.govinfo.gov/content/pkg/PLAW-118publ31/pdf/PLAW-118publ31.pdf (page 381)

(e) CREDITING OF RECEIPTS.—

(2) NOTIFICATIONS AND REPORT.—

(A) INITIAL NOTIFICATION.—Not later than 30 days before the date of the delivery of the first vessel authorized to be transferred under subsection

(a), the President shall notify the appropriate congressional committees and leadership of the following:

(i) The Government of Australia has achieved Submarine Rotational Forces-West full operational capability to support 4 rotationally deployed Virginia class submarines and one Astute class submarine, including having demonstrated the domestic capacity to fully perform all the associated activities necessary for the safe hosting and operation of nuclear-powered submarines.

(ii) The Government of Australia has achieved sovereign-ready initial operational capability to support a Royal Australian Navy Virginia class submarine, including having demonstrated the domestic capacity to fully perform all the associated—

(I) activities necessary for the safe hosting and operation of nuclear-powered submarines;

(II) crewing;

(III) operations;

(IV) regulatory and emergency procedures, including those specific to nuclear power plants; and

(V) detailed planning for enduring Virginia class submarine ownership, including each significant event leading up to and including nuclear defueling.

https://www.govinfo.gov/content/pkg/PLAW-118publ31/pdf/PLAW-118publ31.pdf (page 382)

(c) I hereby delegate the functions and authorities vested in the President by the following provisions of the Act as follows:

(i) to the Secretary of State, in consultation with the Secretaries of Defense and Energy, as appropriate, section 1333 of the Act;

SEC. 1333. REPORTING RELATED TO THE AUKUS PARTNERSHIP.

(a) REPORT ON INSTRUMENTS.—

(1) IN GENERAL.—Not later than 30 days after the signature, conclusion, or other finalization of any non-binding instrument related to the AUKUS partnership, the President shall submit to the appropriate congressional committees the text of such instrument.

(2) NON-DUPLICATION OF EFFORTS; RULE OF CONSTRUCTION.—To the extent the text of a non-binding instrument is submitted to the appropriate congressional committees pursuant to paragraph (1), such text does not need to be submitted to Congress pursuant to section 112b(a)(1)(A)(ii) of title 1, United States Code, as amended by section 5947 of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 (Public Law 117–263; 136 Stat. 3476). Paragraph (1) shall not be construed to relieve the executive branch of any other requirement of section 112b of title 1, United States Code, as so amended, or any other provision of law.

(3) DEFINITIONS.—In this subsection:

(A) IN GENERAL.—

The term ‘‘text’’, with respect to a non-binding instrument, includes—

(i) any annex, appendix, codicil, side agreement, side letter, or any document of similar purpose or function to the aforementioned, regardless of the title of the document, that is entered into contemporaneously and in conjunction with the non-binding instrument; and

(ii) any implementing agreement or arrangement, or any document of similar purpose or function to the aforementioned, regardless of the title of the document, that is entered into contemporaneously and in conjunction with the non-binding instrument.

(B) CONTEMPORANEOUSLY AND IN CONJUNCTION WITH.—

As used in subparagraph (A), the term ‘‘contemporaneously and in conjunction with’’—

(i) shall be construed liberally; and

(ii) may not be interpreted to require any action to have occurred simultaneously or on the same day.

(b) REPORT ON AUKUS PARTNERSHIP.—

(1) IN GENERAL.—

Not later than one year after the date of the enactment of this Act, and biennially thereafter, the Secretary of State, in coordination with the Secretary of Defense and other appropriate heads of agencies, shall submit to the appropriate congressional committees a report on the AUKUS partnership.

(2) ELEMENTS.—

Each report required under paragraph

(1) shall include the following elements:

(A) STRATEGY.—

(i) An identification of the defensive military capability gaps and capacity shortfalls that the AUKUS partnership seeks to offset.

(ii) An explanation of the total cost to the United States associated with Pillar One of the AUKUS partnership.

(iii) A detailed explanation of how enhanced access to the industrial base of Australia is contributing to strengthening the United States strategic position in Asia.

(iv) A detailed explanation of the military and strategic benefit provided by the improved access provided by naval bases of Australia.

(v) A detailed assessment of how Australia’s sovereign conventionally armed nuclear attack submarines contribute to United States defense and deterrence objectives in the Indo-Pacific region.

(B) IMPLEMENT THE AUKUS PARTNERSHIP.—

(i) Progress made on achieving the Optimal Pathway established for Australia’s development of conventionally armed, nuclear-powered submarines, including the following elements:

(I) A description of progress made by Australia, the United Kingdom, and the United States to conclude an Article 14 arrangement with the International Atomic Energy Agency.

(II) A description of the status of efforts of Australia, the United Kingdom, and the United States to build the supporting infrastructure to base conventionally armed, nuclear-powered attack submarines.

(III) Updates on the efforts by Australia, the United Kingdom, and the United States to train a workforce that can build, sustain, and operate conventionally armed, nuclear-powered attack submarines.

(IV) A description of progress in establishing submarine support facilities capable of hosting rotational forces in western Australia by 2027.

(V) A description of progress made in improving United States submarine production capabilities that will enable the United States to meet—

(aa) its objectives of providing up to five Virginia Class submarines to Australia by the early to mid-2030’s; and

(bb) United States submarine production requirements.

(ii) Progress made on Pillar Two of the AUKUS partnership, including the following elements:

(I) An assessment of the efforts of Australia, the United Kingdom, and the United States to enhance collaboration across the following eight trilateral lines of effort:

(aa) Underseas capabilities.

(bb) Quantum technologies.

(cc) Artificial intelligence and autonomy.

(dd) Advanced cyber capabilities.

(ee) Hypersonic and counter-hypersonic capabilities.

(ff) Electronic warfare.

(gg) Innovation.

(hh) Information sharing.

(II) An assessment of any new lines of effort established.

https://www.govinfo.gov/content/pkg/PLAW-118publ31/pdf/PLAW-118publ31.pdf (page 372-374)

(c) I hereby delegate the functions and authorities vested in the President by the following provisions of the Act as follows:

(ii) to the Secretary of State, in consultation with the Secretaries of Defense and Energy, section 1342 of the Act;

SEC. 1342. IDENTIFICATION AND PRE-CLEARANCE OF PLATFORMS, TECHNOLOGIES, AND EQUIPMENT FOR SALE TO AUSTRALIA AND THE UNITED KINGDOM THROUGH FOREIGN MILITARY SALES AND DIRECT COMMERCIAL SALES. (a) IN GENERAL.—

Not later than 90 days after the date of the enactment of this Act, and on a biennial basis thereafter for 8 years, the President shall submit to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives a report that includes a list of advanced military platforms, technologies, and equipment that are pre-cleared and prioritized for sale and release to Australia, the United Kingdom and Canada through the Foreign Military Sales and Direct Commercial Sales programs without regard to whether a letter of request or license to purchase such platforms, technologies, or equipment has been received from any of such country.

(b) ADDITIONAL ITEMS.—

Each list may include items that are not related to the AUKUS partnership but may not include items that are not covered by an exemption under the International Traffic in Arms Regulations except unmanned aerial or hypersonic systems.

https://www.govinfo.gov/content/pkg/PLAW-118publ31/pdf/PLAW-118publ31.pdf (page 375-376)

(c) I hereby delegate the functions and authorities vested in the President by the following provisions of the Act as follows:

(iii) to the Secretary of Defense, in consultation with the Secretary of Energy, section 1352(e)(2)(B) of the Act;

SEC. 1352. AUTHORIZATION OF SALES OF VIRGINIA CLASS SUBMARINES TO AUSTRALIA.

(e) CREDITING OF RECEIPTS.—

(2) NOTIFICATIONS AND REPORT.—

(B) NOTIFICATION.—

Not later than 30 days after the date of a transfer of any vessel authorized under subsection (a), and upon any transfer or depositing of funds received pursuant to such a transfer, the President shall notify the appropriate congressional committees and leadership of—

(i) the amount of funds received pursuant to the transfer; and

(ii) the specific account or fund into which the funds described in clause (i) are deposited.

https://www.govinfo.gov/content/pkg/PLAW-118publ31/pdf/PLAW-118publ31.pdf (page 383)

(c) I hereby delegate the functions and authorities vested in the President by the following provisions of the Act as follows:

(iv) to the Secretary of Defense, in consultation with the Secretary of Energy, section 1352(e)(2)(C) of the Act;

SEC. 1352. AUTHORIZATION OF SALES OF VIRGINIA CLASS SUBMARINES TO AUSTRALIA.

(e) CREDITING OF RECEIPTS.—

(2) NOTIFICATIONS AND REPORT.—

(C) REPORT.—

Not later than 30 days after the receipt of funds as described in subparagraph (B), the President shall submit to the appropriate congressional committees and leadership a report on the matters described in clauses (i) and (ii) of subparagraph (A).

https://www.govinfo.gov/content/pkg/PLAW-118publ31/pdf/PLAW-118publ31.pdf (page 383)

(c) I hereby delegate the functions and authorities vested in the President by the following provisions of the Act as follows:

(v) to the Secretary of Defense, in consultation with the Secretaries of State and Energy, section 1352(i) of the Act; and

SEC. 1352. AUTHORIZATION OF SALES OF VIRGINIA CLASS SUBMARINES TO AUSTRALIA.

(i) REPORT.—

(1) IN GENERAL.—

Not later than 180 days after the date of the enactment of this Act and annually thereafter for 15 years, the President shall submit to the appropriate congressional committees and leadership a report describing—

(A) the status of the transfer of vessels authorized under subsection (a);

(B) the implementation of submarine security cooperation under the AUKUS partnership and challenges towards its implementation;

(C) expansion of the public and private Virginia class submarine production and repair facilities, to include proposed work conducted in Australia and the United Kingdom to meet the additional work required by commitments under the AUKUS partnership;

(D) an annual procurement schedule for the total quantity of submarines the Department of Defense plans to procure over the 15 years following the date of the enactment of this Act; and

(E) a list of transfers or exports of defense services authorized under subsection (h) and the private-sector personnel of Australia or the private-sector personnel of the United Kingdom to whom the defense services were exported.

(2) FORM.—The report required by this subsection shall be submitted in classified form.

https://www.govinfo.gov/content/pkg/PLAW-118publ31/pdf/PLAW-118publ31.pdf (page 384-385)

(c) I hereby delegate the functions and authorities vested in the President by the following provisions of the Act as follows:

(vi) to the Secretary of Defense for funds allocated to the Department of Defense account and to the Secretary of Energy for funds allocated to the Department of Energy account, in coordination with the Director of the Office of Management and Budget, section 1353(d), (h), and (i) of the Act.

SEC. 1353. ACCEPTANCE OF CONTRIBUTIONS IN SUPPORT OF AUSTRALIA, UNITED KINGDOM, AND UNITED STATES SUBMARINE SECURITY ACTIVITIES.

(d) PLAN FOR USE OF FUNDS.—Not later than 30 days prior to any use of any funds in the Submarine Security Activities Account, the President shall submit to the appropriate congressional committees and leadership a plan detailing—

(1) the amount of funds in the Submarine Security Activities Account; and

(2) how such funds will be used, including specific amounts and purposes.

(h) NOTIFICATION AND REPORT.—

(1) NOTIFICATION.—Not later than 60 days prior to the transfer of any funds from the Submarine Security Activities Account, the President shall notify the appropriate congressional committees and leadership of—

(A) the intended use of such funds by appropriation, program, project, and activity, as defined in the Joint Explanatory Statement accompanying the Department of Defense Appropriations Act 2023 (Public Law 117-328); and

(B) the extent to which such funds complement, supplement, or supplant other on-going or planned efforts funded by an appropriations Act with an identification of the associated funding and explanation of the combined efforts including the intended outcomes.

(2) ANNUAL REPORT.—

Not later than November 30 of each year until one year after the date on which all funds transferred under this section have been fully expended, the President shall submit to the appropriate congressional committees and leadership a report that includes a detailed accounting of—

(A) the amount of funds transferred under this subsection during the fiscal year preceding the fiscal year in which the report is submitted; and

(B) the purposes for which such funds were used.

(i) REPORT.—

(1) IN GENERAL.—

Not later than 30 days after the date on which contributions of money accepted by the President under subsection (a) are credited to the Submarine Security Activities Account under subsection (b), the President shall submit to the appropriate congressional committees and leadership a report on—

(A) the amount of money so transferred;

(B) a description of the intended use of the funds; and

(C) any other matters related to the administration of the Submarine Security Activities Account as determined necessary by the Secretary.

(2) FORM.—

The report required by this subsection shall be submitted in unclassified form but may include a classified annex.

https://www.govinfo.gov/content/pkg/PLAW-118publ31/pdf/PLAW-118publ31.pdf (page 387)

Many thanks to Allen Forrest for bringing this to my attention.

James Roguski

310-619-3055

JamesRoguski.com

JamesRoguski.substack.com/archive

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