Delegating Additional Authority Under the Defense Production Act With Respect to Health and Medical Resources To Respond to the Spread of COVID-19

Impact dates

1. Date TBD

   DHS periodic review of section 102 designations for continued necessity

2. Date TBD

   HHS and DHS to adopt and revise implementing rules and regulations

3. Date TBD

   Waiver of DPA section requirements expires upon end of national emergency declared in Proclamation 9994

Key directives

• Delegate DPA Title III sections 301, 302, 303 authority to HHS and DHS for COVID-19 response
• Waive DPA section 301(a)(2), 301(d)(1)(A), and 303(a)(1)-(6) requirements during national emergency
• Delegate DPA section 708(c)(1) and (d) voluntary agreement authority to HHS and DHS
• Require Attorney General consultation and prior approval for voluntary agreements, with presidential approval pathway for waiver
• Delegate DPA section 107 authority to HHS and DHS
• Delegate DPA sections 101 and 102 authority to DHS for health and medical resources
• Authorize DHS to control distribution of health and medical materials in civilian market
• Require DHS to periodically review section 102 designations and publish Federal Register notices of withdrawal
• HHS and DHS to adopt and revise implementing rules and regulations
• Designate Assistant to the President for Trade and Manufacturing Policy as DPA Policy Coordinator

Who is ordered

• Secretary of Health and Human Services · Department of Health and Human Services
• Secretary of Homeland Security · Department of Homeland Security
• Attorney General · Department of Justice
• Secretary of Defense · Department of Defense
• Federal Trade Commission · FTC
• Assistant to the President for Trade and Manufacturing Policy · White House
• Director of the Office of Management and Budget · Office of Management and Budget

Timeline

Risks & tensions

• Dual delegation to HHS and DHS creates potential jurisdictional overlap; consultation requirements (Secs. 2(e), 3(d), 4(d)) may slow response
• DHS authority to control civilian market distribution of medical materials raises federalism concerns and potential conflicts with state procurement
• Waiver of statutory requirements under 301(a)(2), 301(d)(1)(A), and 303(a)(1)-(6) reduces congressional oversight mechanisms during emergency
• Voluntary agreements with private sector (Sec. 708) carry antitrust risks; requirement for Attorney General/FTC consultation and prior approval adds procedural friction
• No explicit sunset for delegations beyond national emergency termination; DHS periodic review of section 102 designations is only explicit ongoing accountability mechanism
• Conditionality in Sec. 3(b) for voluntary agreements versus presidential approval pathway in Sec. 3(c) creates ambiguity about which process applies when