Delegating Additional Authority Under the Defense Production Act With Respect to Health and Medical Resources To Respond to the Spread of COVID-19
This executive order expands and accelerates the federal government’s use of the Defense Production Act (DPA) to address the spread of COVID-19. It authorizes additional DPA actions to boost domestic production of health and medical resources—such as personal protective equipment (PPE) and ventilators)—and to facilitate private-sector cooperation in producing and distributing these resources. The order designates the Secretaries of Health and Human Services (HHS) and Homeland Security (DHS) as primary officials for these authorities, with support from the Secretary of Defense and other agencies as appropriate, and it creates pathways to provide loans, purchases, and other financial or contractual support to expand production capacity. To speed response during the national emergency, the order waives or modifies certain DPA provisions, allows for the submission of determinations to avert resource shortfalls, mandates specific interagency consultations (including with the Attorney General and the Federal Trade Commission for certain voluntary agreements), and enables DHS to issue and withdraw designations of priority resources. It also establishes a policy coordinator role and requires implementing regulations to be updated as needed. Overall, the order aims to centralize and streamline federal authority to prevent shortages and improve the availability of critical health resources.
Key Points
- 1Expands the use of the Defense Production Act to prioritize, allocate, and finance the production of health and medical resources (e.g., PPE, ventilators) to respond to COVID-19, and to support domestic industry capacity.
- 2Delegates Title III authorities (priority, allocation, and related actions) to the Secretary of Health and Human Services and the Secretary of Homeland Security for COVID-19 response, with interagency consultation as appropriate.
- 3Waives certain statutory requirements under the DPA during the declared national emergency to enable faster action, including elements of sections 301, 301(d), and 303.
- 4Authorizes the Secretary of HHS and the Secretary of Homeland Security to submit for the President’s approval proposed determinations that specific loans are necessary to avert industrial shortfalls critical to national defense.
- 5Adds authority under Title VII to the HHS and DHS for voluntary agreements or plans of action to meet national defense needs, with required consultation and prior approval by the Attorney General and the FTC in most cases.