FEMA To Use Wartime Law To Meet COVID-19 Medical Demand

By Alyssa Aquino
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Law360 (March 24, 2020, 1:00 PM EDT) -- The Trump administration will use the wartime Defense Production Act to secure 60,000 coronavirus testing kits, Peter Gaynor, head of the U.S. Federal Emergency Management Agency, said Tuesday morning. 

Gaynor said the government will use the DPA's allocation provision for the first time in the wake of the rapid spread of the novel coronavirus to obtain "about 60,000" kits to test for the highly contagious COVID-19 disease that the virus causes.

"The second thing we're going to do is insert some language into these mask contracts we have for the 500 million masks," he added during an appearance on CNN's "New Day" morning show.

The DPA language will be inserted into an ongoing government contract for 500 million N95 respirators, Gaynor said. The U.S. Department of Health and Human Services solicited bids from contractors in February to produce those masks.

However, in a White House press briefing Tuesday afternoon, President Donald Trump clarified that his administration has not ordered the full use of the DPA.

He referred to an executive order on Wednesday invoking the DPA as the "core element" in his administration's strategy to address future medical supply shortages.

Trump's executive order invoking the DPA gives the administration the ability to prioritize contracts for "personal protective equipment," ventilators and other medical products over commercial orders, but falls short of authorizing the full use of the wartime law.

"Private companies are heeding our call to produce medical equipment and supplies because they know that we will not hesitate to invoke the DPA to get them to do what they have to do," Trump said.

He added, "It's called leverage, you don't have to use it."

The Defense Production Act of 1950 was created during the Korean War to ramp up private production of medical equipment. Since then, it has been expanded to support domestic readiness, response and recovery from natural hazards, terrorist attacks and other national emergencies, according to the Congressional Research Service.  

Under the allocation provision of the DPA, the president can demand private manufacturers prioritize production of supplies and services necessary for national defense. 

"We want to be thoughtful about not upsetting the balance, making sure that we can get it onto the market and the federal government," Gaynor said. "We're going to use it when we need it, and we're going to use it today."

The White House couldn't immediately be reached for comment.

The Trump administration has faced increasing calls to use the wartime law.

House Majority Leader Steny H. Hoyer, D-Md., called on the president on Monday to "stop delaying" on the use of the DPA. 

"That law provides an avenue for the federal government, in times of crisis, to coordinate the manufacturing of essential, life-saving items," Hoyer said.  

--Additional reporting by Dorothy Atkins. Editing by Jack Karp.

Updated: This story has been updated with Trump's later remarks on the administration's DPA use.

For a reprint of this article, please contact reprints@law360.com.

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